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CON FEDERATION
LAW OF CANADA, &0.
S 2340.
CONFEDERATION
LAW OF CANADA;

PRIVY COUNCIL CASES ON
THE BRITISH NORTH-AMERICA ACT, 1867;

AND
THE PRACTICE 0N SPEC/AL LEAVE TO APPEAL.
THERE BEING ADDED
APlDENDIOES
CONTAINING
(1) THE IMPERIAL STATUTES AFFECTING CANADA AND THE
COLONIES IN GENERAL.
(2) THE “JUDICIAL COMMITTEE ACTS”: WITH NOTES.
(3) THE CANADIAN LIQUOR PROHIBITION CASE, 1895-6, &0.
BY
GERALD JOHN WHEELER, M.A., LL.B.,
Of Lincoln’s 79m, Bm'rister-a-t-La'w.


EYRE AND SPOTTISWOODE,
(Ifmnnmtmeut, ﬂaw, cmb Qt‘imteval, aﬂubliaabema,
LONDON—EAST HARDING STREET, FLEET STREET, EC’.
EYRE AND SPOT'I‘ISWOODE,
Her Majesty’s Printers,
DOWNS PARK ROAD, HACKNEY, NJ}.
anh nf thl‘


i-QRQY’IIIEG€$ A - / '


‘
numlmow'? CANADA,
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BRIT\SH COLUMBIA. MAN‘TDBA.


Evil 5 SPO'I'SIIOOOE LITH LONDON
‘EC/$7.: QED
PREFACE.
_
I HAVE endeavoured in this book to present a view of the
various steps towards the confederation of the provinces
of Canada taken by the Imperial Government, as well
as by the Legislatures of the Dominion and Provinces
themselves. It has also been my object to set forth as
fully as possible the decisions of the Judicial Committee
of the Privy Council bearing on the confederation policy
and constitution generally of the Dominion. Under
each section of the British North America Act, 1867, it
will be found that notes are given of all the leading
appeals and petitions ; and following the section which
is the ruling one in the cases reported, the judgment
will be found to be given in FULL.
The yearning abroad for confederation either of the
whole British Empire, or of parts of it—z'.e., confedera-
tion of Australasia: or of South Africa : or of groups of
Islands—appears to grow in intensity daily. The pro-
vinces of Canada have led the way, and the Act
creating their confederation has been interpreted by
numerous decisions of the highest Court of Appeal for
the Colonial Empire—the Judicial Committee of Her
Maj esty’s Privy Council—until now, after nearly
30 years’ examination ‘of the British North America
Act, the respective powers of the Dominion as the
Supreme Authority on the one hand, and of the Pro-
vinces, Supreme in their local districts on the other,
have been clearly expounded and settled in many direc-
tions. The leading appeal which has gone so far to-
wards the settlement of the vexed liquor question and
prohibitory legislation generally, decided in the Privy '
Council in the summer of this year, has, at last, drawn
408611
vi _ PREFACE.
a dividing line’ between the respective powers of the
Dominion and the Provincial Legislatures. The divid-
ing line ﬁxed may not be considered appropriate to
other confederations; but at least a substantial view of
what has been decided as to the confederation of British
North America is now obtainable in a convenient form.
The Manitoba School cases following Section 93 of '
the British North America Act, 1867, and the Manitoba
Act of 1870 ; and another decision of the Judicial
Committee --The New Brunswick School question,
“ Maher 0. Town of Portland ”—which has not been
hitherto reported, are dealt with in this volume.
The Copyright Acts have been grouped together ; and
the American Copyright Act as amended in accordance
with the Berne Convention is included.
Confederation must be affected more or less by
Imperial Acts : these, chieﬂy as they concern Canada,
but also because they affect the British-Colonial World
at large, are given in Appendix A. Some repealed Acts
are also referred to as evidence of what the previous law
was ; and because they are out of print and difficult to
obtain. Each Act contains a head-note stating in what
way the Act has been repealed or amended by subse-
quent legislation. There is a summary of the Merchant
Shipping Act, 1894, except where the sections expressly
deal with the Colonies : These are printed verbatim;
and distinguished by side-notes. To each section there »
is added a reference to the same section in the previous
Shipping Act or Acts. By means of this arrangement,
as well as by the index, under the words “ Statutes
cited,” any section of the old repealed Acts which has
been incorporated into the Act of 18% can be at once
found. The value of this will be recognised when it is
remembered that the Act of 1894s is a consolidating
Act; its sections being bodily transferred from the old
Acts. Cases have decided what a particular section in a
PREFACE. vii
‘previous Act meant; and ﬁnding the section in the Act
of 1894!, the case applies.
Confederation cannot be said to be complete without
the knowledge of the Right of Appeal to Her Majesty’s
Privy Council, therefore there will be found to be set
forth, in Appendix B, the “ Judicial Committee Acts,”
with notes of the right of appeal from every colony, and
place where the “ Foreign Jurisdiction Act, 1890,” is in
operation. The notes are arranged alphabetically, and
the full text of the last-named Act is given.
Notes of cases under Section 101 of the British North
America Act are given, shewing (1) In what class of
case Special Leave to Appeal has been recommended by
the Judicial Committee: (2) Where Special Leave to
Appeal has been refused -: and If Leave is granted,
what conditions may be imposed by the Committee.
The ﬁrst part of the book was printed before the
arguments in the Liquor Prohibition case, 1895-6, were
heard; but on further consideration the publication was
delayed, in order that the judgment might be included.
The case, with the arguments summarized from the
transcript of the shorthand writer’s notes, will be found
in Appendix C. This part of the book also contains
the case decided in July 1896, dealing with the Powers
of Colonial Parliaments to arrest and imprison for
Contempt of Parliament.
Lastly, in the Index, under the words “ Statutes cited,”
will be found every Act referred to in this volume.
My earnest hope is that the work will be found
accurate and impressed with that standard of practical
utility which the Publishers intended, and which I
have endeavoured to carry out.
GERALD JOHN WHEELER.
13, Old Square,
Lincoln’s Inn, 1896.
CONTENTS.
_-__
PAGE
Preface - - - - - _ _ _ _ _ _ V
Abbreviations - - - _ - _ _ _ _ Xi
Cases, Table of - - - - _ _ _ _ XV
Table of Sections of British North America Act, 1867 - - xxxii
Table of Statutes, &c. - - - _ - _ _ -XXXviii
British North America:
The Act, 1867, with notes of cases to each Section ; the im-
portant cases being given in full - - - ]__553
The Act, 1868 - - - - - _ - _ 553
1871 - - - - - - - - 553
1875 — - - - - - - - 555
1886 - - — - - - - - 555
1895 - — - - - - - - 555
Manitoba Act of 1870, with the School cases in full—one
never before reported - - - - - - 369
Rupert’s Land, 1868, Act, extract from - - - _ 553,
Behring Sea Award Act _ - - - - - - 910
Copyright :—
American Copyright Act - - ~ _ _ - _ 875
Berne International Convention Act - - - - - 868
British Copyright Acts - - _ - - _ _ 846
Canada Copyright Acts - - — - - _ 855.857
Merchant Shipping Act, 1894 - — _ - - _ _ 927
Practice of the Privy Council on Special Leave to appeal - 410-482
Quebec Resolutions - - - - - - . - 746
Appendix A :—-
Containing the Imperial Acts which have in the past, or do
now affect Canada and other Colonies - 556-1004
See List of Acts.
Appendix B :—
Containing, ﬁrst, the Acts constituting the Judicial Com-
mittee of the Privy Council - - - _ _ 1005
Secondly, Notes of the Right of Appeal from Every Colony,
&c. - - - - - - ~ - — - 1009
Appendix C :-——
Judgment and Argument in the Liquor Prohibition
Case of 1895-6, and other cases: Including the Pro-
vincial House of Assembly’s Privileges and Immuni-
ties Case - - - - — ~ - - - 1042
Index - - - - ' - - - ~ - - 1089
s 2340. b
ABBREVIATIONS IN THE CITATION
OF THE
VARIOUS COURTS AND LAW REPORTS.
A.C. [year], Law Reports Appeal Cases since 1890.
App. Cas., Law Reports Appeal Cases up to 1890.
B1. Com., Blackstone’s Commentaries.
Blue Book (Prov. Leg. Corresp.), Correspondence of Ministers 7‘8 Legislative Enact-
ments of the Provinces of Canada, to be seen at the oﬁice of the High Com-
missioner for Canada, Victoria Street, SW.
Bri. Col., British Colonies.
B.B., British Bechuanaland.
B.N.A. Act, British North America Act.
Bah. L., Bahamas Law.
Bar. Law, Barbados Law.
C., Old Province of Canada.
C.B.N.S., Common Bench New Series Reports. .
C. of CR, Code of Civil Procedure.
C.J., Chief Justice.
C. Rob., Christopher Robinson’s Admiralty Reports.
C.S.B.C., Consolidated Statutes of British Columbia.
C.S.L.C., Consolidated Statutes of Lower Canada.
Can. Dominion of Canada.
Can. Gaz., Canadian Gazette newspaper, London.
Can. Year Book, Canadian Statistical Year Book issued by the Department of
Agriculture.
Cashels’ Dig., Cashels’ Digest of Canadian Supreme Court Cases.
Ch., Charter.
Cl. Col. Law, Clark’s Colonial Law.
Col. Oﬁ". Lib., Colonial Oﬁice Library.
Com. J our., English House of Commons Journals.
Con. Sta. Can., Consolidated Statutes of Canada.
Cons. Lim., Constitutional Limitations.
Corp., Corporation.
Cowp., Cowper’s Reports.
Cranch, Cranch’s United States Supreme Court Reports.
Crim. Pro. Act, Criminal Procedure Act.
Ct. App., Court of Appeal.
Ct. N .B., Court of New Brunswick.
Ct. Q.B., Court of Queen’s Bench.
(D.), Dominion Act.
East, East’s Reports.
Ex D., Law Reports, Exchequer Division.
F.O.L., Foreign Oﬂ‘ice Letter.
Gr. (or Grant), Grant’s Chancery Reports, Upper Canada.
Grant’s Ch. R., z'bz'd.
b2
X11 ABBREV [ATION S.
H-C., High Court.
H.L., House of Lords. A
H.’s T., Hertslet’s Commercial Treaties.
How. or Howard, Howard’s United States Supreme Court Reports.
J .0., Judge of Appeal, Ontario.
J ohns., J ohnson’s American Reports.
J ur. N.S., Jurist New Series. _
J uris. H. Lords, Jurisdiction of the House of Lords.
J ., Justice.
J .C., Judicial Committee.
K.B.L.C., King's Bench, Lower Canada.
Knapp, Knapp’s Privy Council Reports.
L.C. after a surname, Lord Chancellor.
L.C., Lower Canada. _
L.C.C.S., Lower Canada Consolidated Statutes; C.S.L.C., ditto.
L.C. J ur. (or J .), Lower Canada Jurist.
L.J. Adm., Law Journal Admiralty Reports.
L.T., Law Times Reports. “
L.J.P.C., Law Journal Privy Council Reports.
L.P., Letters Patent.
’ L.R.P.C., Law Reports Privy Council Reports.
Ld. Raym., Lord Raymond’s Reports. '
Leg. News or Legal News, Reports of that name.
Lon. Gaz., London Gazette.
Macq. H.L., Macqueen’s Practice of the House of Lords.
Magis., Magistrate.
Man. L.R., Manitoba Law Reports.
Mon. Q.B., Montreal Queen’s Bench Law Reports.
Mon. Sup., Montreal Superior Court Reports.
Moo. P.C., Moore’s Privy Council Reports.
Moo. P.C. N.S., ditto New Series.
N.S., Nova Scotia.
N.S.W., New South Wales.
O.A.R., Ontario Appeal Reports
O. in C., Order in Council.
O.P.R., Practice Reports, Ontario.
O.R., Ontario Reports.
Oﬁ'. Can. Gaz., Oﬁicial Canada Gazette published in Canada.
Ont., Ontario.
P., Petition of Appeal presented to Lower Court of intention to Appeal to Her
Majesty’s Privy Council.
P.C., Privy Council.
P. WilL, Peere-Williams’s Reports.
Plow., Plowden’s Reports,
Prac. R., Practice Reports, Ontario.
Prerog., Prerogative.
Prov. Leg. Corresp., Correspondence of Ministers re Legislative Enactments of the
provinces of Canada. See “ Blue Book.”
Pugs. and Bur., Pugsley and Burbidge’s New Brunswick Reports.
Pugs, Pugsley’s New Brunswick Reports.
QB. Quebec, Court of Queen’s Bench, Quebec.
Q.B.D., Law Reports, Queen’s Bench Division.
Q.B. Ontario, Queen’s Bench, Ontario, Reports.
Q.L.R., Quebec Law Reports.
Que., Quebec.
Rs., Rupees.
R,O.N.W.T,,_ Revised Ordinances of the North-West Territories.
ABBREVIATIONS. X111
R.S.C., Revised Statutes of the Dominion of Canada.
R.S.O., Revised Statutes of Ontario.
R.S.N.S., Revised Statutes of Nova Scotia.
R.S.Q., Revised Statutes of Quebec.
Rev. Légale, Revue Légale, Canadian Reports in French.
Ridg. L. & Sch. Ir. Rep., Ridgeway, Lapp 8c Schoales Irish Reports.
Russ. & Chesley, Russell and Chesley’s Nova Scotia Supreme Court Reports.
Russ. & (3%., Russell and Geldert’s Nova Scotia Supreme Court Reports.
Russ. & Geldert, ditto.
S.L.R. Act, Statute Law Revision Act.
S.C.R., Supreme Court of Canada Reports.
S.C.R.U.S., United States Supreme Courts Reports.
S.C.N.B., Supreme Court, New Brunswick, Reports.
S.C.N.S.W., Supreme Court, New South Wales.
S.C.N.S., Supreme Court, Nova Scotia.
S.C. Victoria, Supreme Court, Victoria.
St. R., Statutory Rules and Orders.
Sup. 0., Superior Court.
Times, Times Newspaper Reports.
Tupp., Tupper’s Court of Appeal Reports, Ontario; early volumes of O.A.R.
Tupper, Ibz'd.
T.R., Term Reports or Durnford and East’s Reports.
U.C., Upper Canada.
U.C.C.P., Upper Canada Common Pleas Reports.
U.P.C.S., Upper Canada Consolidated Statutes.
U.C.Q.B., Upper Canada Queen’s Bench Reports.
(US), United States Supreme Court.
V., Appealable Value of Question on Appeal to Judicial Committee of Her Majesty’s
Council.
Ves. Sr., Reports of Vesey senior.
Vesey, Vesey’s Reports.
W. BL, Sir William Blackstone’s Reports.
W. of N., Wealth of Nations.
W.R., Weekly Reports.
Wall., Wallace’s United States Supreme Court Reports.
Wheat., Wheaton’s United States Supreme Court Reports.

ERRATA.
P. 5, line 13 (a), for 1628 read 1625.
P. 68, line 6 (a), for 91 read 92.
P. 80, line 26 (b), for 3 read 13.
P. 81, line 32 (a), for Ontario read Quebec.
(XV)
A TABLE
OF THE
NAMES OF THE CASES REFERRED
Those marked with large ﬁgures are reported in full.
A. 013,, Quebec, the Lake St. Clair e. Abbot, Burdett v. Abbotts v. Macdonald
Aitcheson v. Mann
Alexander 0. Vye Allan W. Pratt
Allen '0. Hanson
,, _ v. Redpath
Alling, Sherlock A1100 Paroo, Reg. v. Ally, Syed, East India Company v.
Almy v. State of California
American Cases Amers, Reg. 22. Ames, In re Anderson and Remo, Reg. 2:.
Antigua, In re Justices of .
Apollo Candle Co., Powell 21....
Aquarium, Royal, 1:. Parkinson
Ardevol, Santacana 'v. .
Arpin 22. Reg. Arrindell and Downie, In re...
Astill and Husband v. Hallée Atlantic and North-‘Western Railway Company, Casgrain v. ..
Att,-Gen, of British Columbia v. Att.-Gen. of Canada
,, of Canada, Att.-Gen. of Ontario 11. .
Att.-Gen. of Ontario 7). (Assignments Case)
...295,459,500,519,53e
lF().
PAGE
71
12,1079
425
91
.H 479
432
87,88
410
200
409
1010,1017
58
.H 200
10,33
419,470
544
420
741
.n 1083
.n 424
477
414
250
467
10, 27
*0. Att.-Gen. of Ontario (Local Option) 111, 201, 205, 327, 401
44,78,165,166,197,302,1067
(Great Liquor Case) Att.-Gen. of Quebec v. (Church 12. Blake)
7). The Four Provinces, Acts 1883-4
and Brewers and Distillers Assoc., Att.-Gen. of Ontario 71.
53,467,541,1042,1064
484,499,500,533
64, 123,144, 162, 1050, 1051, 1055
,, v. Bertrand . 33, 418
,, 0. Black 284
,, of Canada 0. Flint 68, 323, 741
,, v. Newman 33
,, v. Corp. of Toronto .. 480
,, of Jersey, Esnouf v. 420
Xvi CASES CITED.
PAGE
Aim-Gen, of Manitoba, Brophy 'v. 371, 376
,, of New South Wales, Macleod 'v. 417
,, of Nova Scotia 2/. Gregory 395, 476
,, of Ontario, Att.-Gen. of Canada 2). 111, 327, 401
,, ,, 'v. Att.-Gen. of Canada (Assignments Case)
44, 78, 165, 166, 302, 1067
,, ,, v. Att.-Gen. of Canada and the Brewers and Distillers
Association (Liquor Case) ...53, 467, 541, 1042, 1064
,, ,, 'v. Mercer 47, 98, 295, 483, 499, 510, 513, 536
,, of Quebec 2). Att.-Gen. Dominion (Church 2). Blake) 484, 499, 500, 533
,, ,, Colonial Building and Investment Co. 'v.' 46, 234, 258
,, ,, '0. Gray ' 545
n n 'v- Murray 'H. n. ... -.. 482
,, ,, 'v. Queen’s Ins. Co. 55, 68, 120 (2nd part), 127 (1st part)
,, ,, 5. Reed 32 (3rd part), 117, 119 (1st part), 320 (2nd part)
,, of Victoria, Woolley v. ... 525
Australian Steam Navigation 2). Smith . 457
Ava, the, v. “ Brenhilda”'British India Navigation Co. 431, 482
Aylmer, Lord, Harvey v; ' 10
Aylwin, Cuvillier "v. 397, 406
Baboo, Gopal Lall Thakoor v. Teluk Chunder Rai 424
,, Mootechund, Moofti Mohummud Ubdoollah v. 424
,, of Montreal 22. Sweeny 458
Baltimore, Lord, Penn 2). 1006
Bank of New South Wales 'v. Owsten 424
,, ofOntario,In re .. 91
,, of Toronto '0. Lambe 54, 68, 75,113, 129, 200, 1650
,, Union, 22. Tennant. See Union.
,, ,, of Canada '0. Ogara 467
Banque du Peuple, Exchange Bank of Canada 477
,, D’Hochelaga 2;. Murray 459
Barker 5. City‘of Fredericton 329
Barrabool,the .. 457
Barrett, City of Winnipeg ‘v. 333, 371, 440
Barton '0. Taylor 1079,1082
Bayley, Ganong v. .. 391
Beatty, North-West Transportation Company v. 458
Beaudet, North Shore Railway Company 6. 478
Becket, Grand Trunk Railway Company 444, 475
Beckfort v. Wade 1006
Beebee Doss, Mohun Lall Sookul v. 430
Belanger 'v. Caron... 22
Belford, Smiles 91, 368
Belisle, L’Union St. Jacques de Montreal 21.
43, 45, 67, 69, 76, 84, 127, 147, 264, 1048
Bell Telephone Co., In re 89
Belleau, Reg. '0. .. 526
Bennett 1). Pharmaceutical Association... 200
,, Reg/v. .. _ 324, 390
Berger-on v. Lassalle _ H 203
Berkley,Wilson 33
Bertrand v. Att.-Gen. New South Wales .. 33, 418, 539
Bickferd andv Erie and Huron Railway Company v. Corp. of Chatham 479
Bigge, Hill e.v . _ ‘ j I 10
CASES CITED. xvii
PAGE
“Birksgate,” the 457
Birmingham Canal Company, Warwick Canal Company v. 90
Bishop of Natal 6. Bishop of Capetown 741
Black, Att-Gen. o. 284
,, Dow v. 67 (2nd part), 126, 225, 229 (1st part)
Blackbird Creek Marsh Company, Willson v. 200
Blackwood, Mayor of Essendon I0. 525
Blake, Church o. (Att.-Gen. Quebec 0. Att.-Gen. of Canada) 484, 499, 500, 533
,, Loughborough v. .. 118
Blanchet, Guay o. 22
Blouin v. Corp. of Quebec 126, 161
Boale 42. Dickson. 451
Board of Temporalities, Dobie 41. 49, 124, 232, 2'72, 328, 538
,, of Wardens, Cooley v. 200
Bose Ram Sabuk, Monmohini Dossee 'v. 430
Boston aLelievre 425
Boswell '0. Kilborn... v 433
Boucher, In re 104
Boulton and Algoma Trading Company v. Shea 481
Bourgoin 11. La Campagnia du Chemin de F er de Montreal 111, 232, 329, 541
Brenhilda, '0. British India Navigation Company (the “ Ava ”) 431, 482
British Columbia Towing Company and Moodyville Sawmills Company,
Sewell 'v. 322, 451
,, India Steam Navigation Company 12. Owners of “ Brenhilda ” 431, 482
Brome, County of, Cooey v. .. 161, 541, 1047
Brophy 'v. Att—Gen. of Manitoba 333, 376
Broughton, Sinclair v. 418
Brown v. McLaughan 424
,, Mayor of Montreal 1).... 431
,, v. State of Maryland 58, 157, 197, 215
Bruneau aMassue... .. 22
Bulkeley v. Scutz 431
B11116. Wing Chong ' 63, 122
Burah, Reg. Q). 22, 49, 131, 248, 390, 741
Bnrdett v. Abbot 12,1079
Bury,Forsyth v. 307,478
Calder o.Halket 1083
Caldwell v. McLaren . ' 450
California, State of, Almy o. 58
Callender, Wilson v. 430
Cambernon v. Egroignard 431
Cambridge, In re 396
Camden 4). Home 89
Camilleri o. Fleri 435
Campbell 42. Commercial Banking 00.... 456
Canada Atlantic Railway Company v. Corp. of Ottawa 463
,, Att.~Gen. of, 'v. Att.-Gen. of Ontario (Assignments Case)
44, 78, 165, 166, 197, 302, 1067
,, Local Option Case. See Att.-Gen. 'v.
’)
,, Central Railway '0. Murray
44s
,, North-Western Land Company, Lynch 4). 76, 121
,, Shipping Company, Wilson 1). See Lake St. Clai 71
Canadian Bank of Commerce 22. Lambe 113
,, Paciﬁc Railway, Robinson 463
,, Paeiﬁc Railway, Vancouver, City of, *0. 306
xvili CASES CITED.
PAGE
Canepa, 'v. Larios 425
Cape Town, Bishop of, Long 1). 741
Caron, Belanger ~v. 22
Carson, Clark 2). 463
,, Kielley o. 12, 1083
Carter 0. Molson 286, 292, 428
Casgrain '0. Atlantic and North-Western Railway Company .. . 467
Central Vermont Railway Company, St. John Corp. v. 426, 461
,, Railway of Quebec, Corp of Quebec '0. 452
Chabot '0. Lord Morpeth 89
Chaleurs Bay Case... 74
Chandler, Reg. 'v. .. 226, 230
Charlton’s Case 414
Chatham Company, Bickford and Erie and Huron Railway Company v. 479
Chandiere Gold Mining Company v. Desbarats .. 45, 46, 234, 242, 243
Chevrier '0. Reg. .. 473
Chinese Immigrant Case 63, 122
Chirao 'v. Chirac 101
Chowdry 'v. Mullick .. . 1010
Chowdry Roy Prannath o. Ranee Surnomoyee 424
Christian 0. Corren 409
Chu Lay, or Wing Chong, Bull, 2). 63, 122
Chun Teong Toy v. Musgrove .. 328
Church 0. Blake (Att.-Gen. Quebec 2:. Att.-Gen. of Canada) 484, 499, 500, 533
Churchill v. Crease... 58
Chutraput Singh Doorga v. Dwarka-nath Ghose 436
Citizen Insurance Company 2:. Parsons... 2, 46, 47, 50, 54, 65, 68, 76, 90, 121, 131,
134, 140, 149, 172, 174, 182, 200, 237, 239, 241, 242, 248, 249, 258, 277,
307, 325, 459, 1045, 1053, 1059, 1062, 1066, 1067, 1068
City of Fredericton "0. Reg. 60, 62, 125, 129, 171, 196
,, of Montreal, Lemoine 'v.... .. 482
,, ,, Les Ecclesiastiques de St. Sulpice 442
,, ,, Longueil Navigation Company 66
,, ,, Pigeon o. 161
,, ,, Pillow 200
,, of Ottawa, Leprohon '0. 70, 319, 541
,, of Vancouver '0. Canadian Paciﬁc Railway 306
,, of Winnipeg o. Barrett 333, 371, 440
,, ,, 0. Logan 333, 371, 440
Clark 22. Carson 463
,, v. Molyneux 457
Clarke, Schoolbred 'v. 88, 321
,, a. Union Fire Insurance Company 246
Clarkgon 1). Ryan 460
Clement, King '0. .. 414
College of Physicians, Reg. '0. 70, 420
Colonial Building and Investment Company 'v. Att.-Gen. of Quebec... 46, 234, 258
Commercial Bank of South Australia, In re 87
,, Banking Company, Campbell v. 456
,, ,, ,, Windsor, Town of Windsor 4). 75
Connecticut and Montreal Life Assurance Company, Moore '0. 453
Cooey 'v. County Brome 161, 541, 1047
Cook, Rex v. .. 33
Cooley v. Board of Wardens 200
Cooper 2). Cooper .. 425
Coote,Reg.v. ‘_ 42o
CASES CITED. xix
PAGE
Cerren, Christian v. 409
Cersellis,la ve 87
Cossette v. Dun .. 424
Cote v. Morgan 90
County Council, London, Reg. v. 1083
(Iowan v. Wright . . 232, 541
Crease, Churchill v. 58
Credit Valley v. Great Western Railway Company 233
Crombie v. Jackson... 321
Cross v.DeValle .. 510
Curry v. Curry 472
Cushing v- Dupuy 73, 80, 90, 149, 234, 301, 307, 303, 323, 1034
,, Owens v. 22, 319
Curvillier v. Aylwin 397, 406
,, Symes v-m 245,257
Dakhe Mugsumut, Sheo Singh Rai v. 462
Danaher v. Peters 66, 162
Dansereau, Ea: part3 36, 1086
Darling’s Case 28
Davidson, Queddy River Driving Boom 66
,, Reg. v. 33
Dawkins v. Lord Rokeby 1083
Deeming,[a re 416
Delmege, Jenoure v. 437, 456
Desbarats, Chaudiere Gold Mining Company v. ' 45, 46, 234, 242, 243
D’Heehelaga, La Banque, Goldring v. 428
” ,, v. Murray 459
De Selma,’ In ve 414, 420
De Valle, Cross 2). 510
Devlin, Ryan v. 22, 317
Dickson, Boale v. 451
Diggs 2). Wolcott _ 319
Dill v. Murphy 12
Dillets, In 're 415
Direct United States Cable Company v. Anglo-American Telegraph 74
Debie v. Temporalities Board... 49, 124, 232, 272, 328, 538
Donegani v. Donegani . 561
D’Oﬂiae v. D’Orliac ,, 434
Doss, Beebee, Mohun Lall Sookul 430
,, Hullodhur, Sibnarian Ghose v. 427, 430
Dessee, Monmohini, Ram Sabuk Bose v. 430
Deutré, Reg. v. 396
Dow v. Black, Judgment of RC. 67 (2nd part), 126, 225, 229 (1st part)
Downie and Arrindell, I a re, Appeal . . 414
Doyle v. Dufferin 126
,, v. Falconer 12,1083
Duﬁ'erin, Doyle v. 126
Dumaresque, Magoons v. 1006
Dumoulin v. Langtrey " 472
Dun, Cossette v. 424
Dupuy, Cushing v. 78, 80, 90. 149, 204, 301, 307, 303, 323, 1034
Button v. Howell 10
Dwarkanath Ghese, Chutraput Singh Doorga v. 436 ,
Dyke v. Walford ,, 509
XX CASES CITED.
- Fuller, Railway Co. 12.
East India Company ‘v. Syed Ally Ecclesiastiques de Sulpice, City of Montreal 0.
Edulgee Byramjee, Reg. '0. Egroignard, Cambernon v. Election Case (Niagara)
a, 9: Quebec
Eliza Keith, The Ely v.Peck Esnouf v. Attorney-General of Jersey Esquimalt and Nanaimo Railway Co., Hoggan v.
Essendon, Mayor 21. Blackwood European and North American Railway '0. Thomas, Examined
Evans 6. Hudon .. r .
,, Laramee v. Exchange Bank of Canada 0. Banque du Peuple
H ,, 0. Reg. . ..'
Export Lumber Co. of New York’s Case
Eyre, Phillips 0. Eyre’s (Governor) Case
Fabius, The .
Fabrigas, Mostyn .. . ..
Falconer, Doyle Falkland Islands Co. 12. Reg.
Farwell, Reg. 2:. Fenno, Veazie Bank v.
Fenton v. Hampton
Fielding, Thomas 12.. Fish, Stevens 2). Fishmongers’ Co., Lyons 1)....
Fleri, Camilleri o. Fletcher 21. State of Rhode Island
Flint, Attorney-General of Canada '0. Forget v. Ostigny __
Forsyth 0. Bury ..
Frawley, Reg. 9. Fredericton, City of, Barker 0.
,, '0. Reg.
Gagnon, Prince Ganong 'v. Bayley ..
Gardner '0. Parr
Garrett, Meriwether v.
Gauthier, Sauvageau v. .
Gemmill, Sailand v. General Council of Medical Education, Leeson v.
Ghose Dwarkanath, Chutraput Singh Doorga v.
Ghose, Sibnarian, v. Hullodhur Doss Gibbon v- Ogden
Giesler, Goodwin 'v. Gillespie, Merchant’s Bank, Halifax, 2).
Gilman v. City of Philadelphia
Glass, Speaker of the Victorian Legislature o.
Godbout, Grand Trunk Railway Co. v.
Goldie, Smith ‘v,-
Goldring 0. La Banque D’Hochelaga
...243,345,1033
60, 62, 125, 129, 171, 196, 200
.. 88, 90, 91, 474
PAGE
. 1009
- 442
409
431
22,319
22
71
319
420
466
.a 525
226,231
70, 541
257
477
31, 233, 293
.u 246
28
. 1006
... 10
12,1083
415,419
519
121
.n 12
".1079
253
493
435
.n 101
68,323,741
.0 423
307,478
126,154,325
329
200
. 441
391
224
77
421,431
.a 94
. 1083
436
427,430
157,219
.. 470
87,741
200
12
434
428
CASES CITED. xxi
PAGE
Goodhue, Re 232, 248, 541
Goodwin 'v. Giesler... 470
Gordon '0. Lowther » 1006
Gosset @- Howard . . 1082
Governor-General 22. Four Provinces, Acts of 1883~4
64, 123, 144, 1050, 1051, 1053
Grand Trunk Railway 0. Beckett 444, 475
,, ,, v. Godbout 434
,, ,, v. County of Halten 480
,, ,, 0. Jennings 445
,, ,, McMillan 'v. .. 479
Gray, Attorney General of Quebec 0. 545
Great Northern Railway Co., North London Railway Co. 'v. 90
,, Western Railway Co., Credit Valley Railway Co. v. 233
,, ,, Insurance Co., Jordan 2). 458
Green, Holman v. 73, 498
Gregory, Attorney-General of Nova Scotia 0. 395, 476
Griﬂith, Pope o. 322
,, v.Rioux 161,541
,, Stace v. 436
Guay v. Blanchet ... 22
Halket, Calder v. 1083
Halley, Case of 410
Halliday, Reg. 1). 158
,, United States v. 62
Halten, County of, Grand Trunk Railway '0. 480
Hampshire, State of New, Pierce 1). 101
Hampton, Fenton v. . . 12
Hanson, Allen 11. 87, 88
Hart, Joyce v. 434
,, v. Corp. of Missisquoi 541
Reg. v. 105
,, Sun Fire Ofﬁce 1;. 424
Harvey 0. Lord Aylmer 10
Honnossy, Pope, Case of 28
Herbert v. Purchas 12, 472
Hill v. Bigge 10
Hoohelaga, Corp. of, Smart v. . 201
Hodge v- Reg- 50, 62, 63, 109, 124, 135, 147, 150, 153, 154, 161, 166, 191, 200,
‘ 248, 294, 324, 327, 329, 741, 1054, 1056, 1058, 1063, 1069
Hog-gan v. Esquimalt and Nanaimo Railway Company , 466
Holman v. Green . . 73, 498
Home, Camden v. 89
1108611168 Begum, Mussumat, Mussumat Jariutool Butool v. 437
Hoskin or Ross 1:. Hurtcau .. 480
Houston v.Moore 319
Howard, Gosset '0. 1032
Howell, Dutton v. lo
Hudon, Evans 12. 70, 541
Hudson, United States of America v. 319
Hullodhnr Doss, Sibnarian Ghose v. 427, 430
Hunter 12. Martin 319
Huntingdon, Corporation of v. Moir 163, 203, 204
Hurteau, Hoskin or Ross 480
11115011 1). Township of South Norwich... ... -.-
164, 195
xxii CASES crrnn.
men
Indar Kunwar, Maharani v. J aipal Kunwar, Maharani 437
Ingram, Read v. 57
Jackson, Crombie v. 321
Jaipal Kunwar, Maharani, Maharani Indar Kunwar v. 437
Japanese Government v. P. & 0. Steam Navigation Co. 1031
Jardine v. Lyall 431
Jariutool Butool, Mussumat v. Mussumat Hoseinee Begum 437
Jennings, Grand Trunk Railway Company v. 445
J'enoure v. Delmege 437, 456
Jersey, Att.-Gen. of, Esnouf v. 420
Johnston v. Minister of St. Andrews 19, 405
,, v. Poyntz 102
Jones, Wetherell v. > 50
Jordan, Great Western Insurance Company v. 458
Joyce vnHart . 434
Joykissen Mookerjee, Reg. v. 419
Justices of Antigua, In re 420
,, of King’s, Reg. v. 58, 161,172,1053
,, of Sierra Leone, v. Rainy 412
,, ,, Ramsay v. 412, 483
,, ,, Smith v. 414
Keefe v. McLennan... 186, 1047
Keith, Eliza, The 71
Kelly v. Sulivan 396
Kennedy v. Purcell 314, 394
Kerry Kolitany, Moniram Kolita v. 428
Kielley v. Carson 12,1083
Kierzkowski v. Grand Junction Railway Company 234, 246
Kilborn, Boswell v. 433
King v. Clement 414
Kisto Nanth Roy, In re . 472
Ko.Khine v. Snadden _... 424
Kops v. Reg. 415
Kunwar, Maharani Indar v. Maharani J aipal Kunwar .. , .. . 437
La Banque D’Hochelaga, Goldring v. ' 428
Lake St. Clair, The, v. A. Ct., Quebec 71
Lamb v. Bowser 249
Lambe, Bank of Toronto v. 54, 68, 75, 113, 129, 200, 1050
,, Canadian Bank of Commerce v. 113
,, Merchants’ Bank of Canada v. 113
,, Molson v. 66,159, 160
Lambkin v. South Eastern Railway Company 423
Lamourenx v. Molleur 474
Landry, Theberge v. 22, 39, 40, 45, 83, 109, 308, 316, 394, 440
Lane County v. Oregon 77
Langlois, Valin v. ll, 18, 48, 68, 90, 91, 312, 316, 318, 394, 441, 538
Langtry, Dumoulin v. .. 472
Laramee v. Evans ... 257
Larios, Canepa v.‘ 425
Lassalle, Bergeron v. 203
Laurent, Lupine v. 163, 1047
Lawless v. Sullivan 75
CASES CITED.
X .00
Leacock, McLaren or ‘Shields Lechmere, Charlton’s Case Leclaire, Macfarlane v. Leeson v. General Council of Medical Education
Lefrancois, Russell v.
Lelievre, Boston v. Lemoine v. City of Montreal
Lenoir v. Ritchie Leprohon v. Corporation of Ottawa Les Ecclesiastiques de St. Sulpice, City of Montreal v.
Letellier’s Case Levien v- Reg-
Levinger v. Reg. . Lewin v. Wilson License Cases, U.S.
Lin Sing 72. Washburn
Lindo 0. Rodney
Liquor Case, Nova Scotia
,, License Act, 1883-4
,, Prohibition Case
LiVlllS 1'- Wentworth Local Government Board, Reg. v.
,, Option Act Case .
Logan, City of Winnipeg v. London County Council, Reg. v. Long v. Bishop of Cape Town LOngueiI Navigation Co. v. City of Montreal
Loughborough v. Blake Low, Routledge v. Lowther v. Gordon
,, v. Earl of Radnor
L’ Union St. Jacques de Montreal v. Belisle
Lupine v. Laurent ._
Lutehmeedavamah Naragunty v. Vengama Naidoo
Lyall v. Jardine Lyneh v. Canada N.W. Land Company Lyons v. Fishmongers’ Company
Macdonald, Abbotts 0. MacDonnell’s P. E. . Macfarlane v. Leclaire 1..
MacLaren, Caldwell ,, or Shields v. Leacock
Maclaughan, Brown v.
Maclennan, Keefe Macqueen v. Reg. Macrea, Ex parte Mcclanagan v. St. Ann’s United Building Society
McCullooh v. State of Maryland McDermott, In re McDougall, Reg. v.
,, v. McGreevy ‘ MeFee, Mowat v. MoG-reevy, McDougall v. McGuire, Wilson v. ...
64, 123, 144, 162, 1050, 1051, 1055
34, 123,144,1042, 1034
10, 27, 111, 201, 205, 327, 401
PAGE
433
414
420,432
. 1033
474
425
H. .u 432
7,11,23,27,35,543
70,319,541
- 442
23
417
107,413
452
.N 214
33
. 1003
123
1006
90
.. 333,371,440
. 1033
741
33
113
92
. 1003
. 1032
43,45,37,39,76,34,127,147,234,329,1043
133,1047
433
431
73,121
493
425
u 121
420,432
H. 450
n. .u 433
3. 424
n. 133,1047
477
417
243
325
413
159
447
74
u. .U 447
391
xxiv CASES CITED.
PAGE
McKenzie, North West Transportation Co. v. 482
,, White 'v. 22
McLean '0. Stewart... 467
McLeod v. New Brunswick Railway Company 473
,, v. Attorney-General of New South Wales 417
McManamy v. Sherbrooke 159
McMillan 'v. The Grand Trunk Railway Company 479
.McMnllen v. Wadsworth 257
McNeil, E4‘ pav'te 200
Madison, Marbury 'v. 390
Magoons 'v. Dumaresque 1006
Magura 0. Magura 447
Maharani Indar Kunwar v. Maharani J aipal Kunwar 437
Maher 2). Town of Portland 332, 334, 338
Main 2). Stark 428
Maitland, Tareeny Churn Bonnerjee v. 438
Manitoba, Attorney-General, Brophy v. 333, 376
Mann, Aitcheson 91
Manning, Nasmith'v. 450
Marbury '0. Madison ' 390
Marchand, Ouimet 'v. . . 284
Maritime Bank of Canada 1). New Brunswick Receiver-General 1, 7, 27, 31, 32,
109, 292, 480
Marois, In re, Examined, Followed 83, 328
.MartinaHunter 319
Maryland, State of, Brown 11 58,157, 197, 215
,. ,. M9011113gh v. . 325
Massachusetts Bay 9- The King 1006
,, Thurlow v. ...‘-§101
Massue, Bruneau 22
Matheson Bros., In re 87
Mathews 2). Warner .. 412, 414, 469
Medical Education, General Council of, Leeson v. 1083
Mercer, Attorney-General of Ontario '0. 47, 98, 295, 483, 499, 510, 513, 536
Merchants’ Bank of Canada 9. Lambe 113
,, ,, Moﬁ‘attv. 475
,, ,, v- Smith 65, 75, 299
,, ,, Halifax v. Gillespie 87, 741
Meriwether, Garrett 'v. 77
Middlesex, Sheriﬁ‘ of 1079, 1082
Minister of St. Andrews 22. Johnston 19, 405
Missisquoi, Corp. of Hart, 22. 541
Moﬁ'att v. Merchants’ Bank 475
Mohr, Reg. '0. 249
Mohun Lall Sookul v. Bcebee Doss 430
MOir, Corp. of Huntingdon 41. 163, 203, 204
Molleur v. Lamoureux 474
Molson v. Lambe 66,159,160
,, 4). Carter 286, 292, 428
Molyneux, Clark 1). 457
Monokton, In re 396
Moniram Kolita 9. Kerry Kolitany 428
Monk 2). Ouimet 284
Monmohini Dossee, Ram Sabuk Bose v. 430
Montaignac v. Shim. 438
Montreal, City of, Lemo ne v. . 482
‘ 0, Les Ecclesiastiques de St. Sulplce 4,4,2
,2 U
CASES CITED. XXV
PAGE
Montreal, City of, Longueil Navigation Company v. 66
n ,, Pigeon 'v. 161
,, ,, Pillow 11. 200
,, Mayor of, Springle o. Brow . .. 431
,, Ottawa and Occidental Railway Company, Bourgoin v. 111, 232, 329,
541
,, Passenger Railway 21. Parker 47 5
Moodyville Sawmill Company 0. Sewell 322, 451
Moofti Mohummud Ubd oollah v. Baboo Mootechund... .. 424
Mookerjee J oykissen, Reg. '2). 419
Mooljee Madowdass, Nathoobhoy Ramdass '0. 1010
Moore 1). Connecticut and Montreal Life Assurance Company 453
,, Houston '0. 319
Mooteohund Baboo, o. Moofti Mohummud Ubdoollah 424
Morgan, Cote "v. 90
Morpeth, Chabot v. 89
Mostyn o. Fabrigas 10
Mousseau, Reed 6. 536
Mowat v. McFee 74
Mulliok, Chowdry v. 1010
Murphy, Dill v. 12
,, Reg. '0. 418
Murray, Attorney-General of Quebec 5. 482
,, Canada Central Railway Company ’v. .. . 448
,, le Banque D’Hochelaga ~v. 459
Musgrave v.Pulido 10
Musgrove, Chun Teong Toy o. 328
Mugsumut Dakho, Sheo Singh Rai 1). 462
Mussumat Jorintool Butool o. Mussumat Hoseinee Begum 437
Naragunty Lutchmeedavamah v. Vengama Naidoo 438
Nasmith v. Manning . .. 450
Natal, Bishop of, ‘v. Capetown 741
Nathoobhoy Ramdass 0. Mooljee Madowdass 1010
Neo, Ong Cheng, 'v. Yeap Cheah Neo 425
New Brunswick Railway Company, McLeod v. 473
Receiver—General, Maritime Bank v. 1, 7, 27, 31, 32, 109, 292
,7 7,
,, Hampshire, State of, New York 1). _ 1006
,, ,, Peirce v. 101
,, South Wales v. Bertrand 33, 418, 539
,, ,, McLeod o. 417
,, York '0. New Hampshire State 1006
Newman, Attorney-General of Canada '2). 33
Niagara Election Case 22, 319
,, Falls Park 0. Howard 524
North London Railway Company '0. Great Northern Railway Company 90
,, Shore Railway Company, Beaudet v. 478
,, ,, ,, v. Pion 461, 498
,, West Transportation Company 2). Beatty 458
,, ,, ,, o. Mackenzie .. 482
Norwich, South, Township of, Huson 'v. 164, 195
Nova Scotia, Att.-Gen., Gregory '0. 395, 47 6
,, ,, Bank, Reg. 1:. 31, 293
,, ,, Liquor Act, In re 126
Obermuller, Retemeyer 'v. 411
Ogden, Gibbon 'v. ' 157, 219
S 2340. C
‘XXVI CASES CITED.
‘ PAGE
011g Cheng Neo v. Yeap Cheah Neo .. ‘ 425
Ontario, Att.-Gen., v. Att.-Gen. Canada. See Canada.
,, ,, Mercer v. See Mercer.
,, Province v. Province of Quebec cases 483, 545
Option, Local, Case 10, 27, 111, 201, 205, 327, 401, 459, 500, 519, 536
Oregon Company, Lane County v. 77
Orillia, Corp. of, Slavin v. 154, 167, 137, 212
Orphan Board v. Van Reenen 410, 1017
O’Gara, Union Bank of Canada v. 467
O’Regan v. Peters 162
O’Rourke, Reg. v. 103
Ostigny, Forget 428
Ottawa and St. Lawrence Railway, Lett v. 444
,, Corp. of, Canada Atlantic Railway Company v. 463
,, ,, Leprohon v. 70, 319, 541
Ouimet v. Marchand 284
,, Monk v. 284
Owens v. Cushing .. 22, 319
Owsten, Bank of, New South Wales v.. .. 424
Oyster Case, Appeal 419
Paciﬁc Insurance Company v. Soule 121
Pariente, Jacob de. Ex parte 410
Parkdale, Corp. of, v. West .. 459
Parker, Montreal Passenger Railway Company v. 475
Parkinson, Royal Aquarium v. . 1083
Parr, Gardner v. .. 224
Parsons, Citizens Insurance Company v. 2, 46, 47, 50, 54, 65, 68, 7 6, 90,
121, 131, 134,140, 149, 172, 174, 132, 200, 237, 241, 242, 243, 249,
258, 277, 325, 459, 1045, 1053, 1059, 1062, 1065, 1067, 1068
,, Queen’s Insurance Company v.‘ 116, 270, 278
Peak, Shields v. 88
Peek, Ely v. 319
Peirce v. State of New Hampshire 101
Penn v. Lord Baltimore 1006
Pennsylvania, State of, v. Wheeling and Bridge Company 66
Peters, Danaher v. 66, 162
,, O’Regan v. . . 162
Peuple, Banque du, Exchange Bank of Canada v. 477
Pharmaceutical Association, Bennett v. .. . 200
Philadelphia, City of, Gilman v. i 200
Phillips v. Eyre 248, 345, 1033
Philpott v. St. George’s Hospital 349
Picton, The 49
Pigeon v. City of Montreal 161
Pillow, Ex parte, and the City of Montreal 50, 104, 200
Pion, North Shore Railway Company v. 461, 498
Pollard, In 're ..-. 414
Pope Hennessy’s Case 28
,, v. Griﬁith 322
Portland, Town of, Maher v. 333, 334, 338
Poulin, Corporation of Quebec 90, 125, 161
Powell v. Apollo Candle Company .. 741
Poyntz, Johnston v. 102
Prannath Roy Chowdroy v. Rance Surnomoyee 424
Pratt,Allanv-
"-432
GASES CITED. xxvil
. PAGE
Prince v. Gagnon 441
Prittie, Reg. v. 104,161
Provinces, Four, Dominion v. [Acts of 1883-4] 64, 123, 144, 162, 1050, 1051, 1055
Pulido, Musgrave v. 10
Purcell, Kennedy v. 314, 394
Purchas, Herbert v. ._.. 472
Quebec, Att.-Gen. v. Att.-Gen. of Canada 484, 499, 500, 533
,, Attorney-General of, Colonial Building and Investment Company v. 46
,, ,, v. Gray 545
,, Central Railway, Quebec Corp. v. 452
,, Corp. of, Blouin v. . . . . .. 126, 161
,, ,, Poulin v. 90, 125, 161
,, Province v. Corp. of Huntingdon 163
,, ,, Ontario Province v. 483, 545
,, Corp. v. Quebec Central Railway Company 452
,, Election Petition 22
Queddy River Driving Boom Company v. Davidson . 66
Queen’s Insurance Company, Attorney-General of Quebec v. 55, 68, 120 (2nd part),
127 (1st part)
,, ,, ,, v. Parsons ,_.. 116, 270, 278
Quirt v. The Queen 75, 85, 112, 332, 536
Radnor, Earl of, Lowther v. 1082
Kai Sheo Singh v. Mussumut Dakho 462
Railway Company v. Fuller .. 200
,, Commissioners, South-Eastern Railway Company v. '90
Rainy v. Justices of Sierra Leone 412
Raleigh, Corp. of, v. Williams 466
Ram Sabuk Bose v. Monmohini Dossee . . 430
Ramdass, Nathoobhoy, v. Mooljee Madowdass 1010
Read v. Ingram . 57
Receiver-General, New Brunswick, Maritime Bank v. 1, 7, 27, 31, 32, 109, 292
Redpath v. Allen . 410
Reed 0. Att.-Gen. of Quebec 32 (3rd part) 117, 119 (1st part), 320 (2nd part)
,, v. Mousseau 536
,, Ward v. 103
Reenen, Van, Orphan Board v. 410
Reg, v. Alloo Paroo... 409
,, v. Amers 10, 33
,, v. Anderson and Remo 544
,, Arpin v. .. 477
,, v. Bank of Nova Scotia 31, 293
,, v. Bennett 324, 390
,, v. Belleau 526
,, Bertrand v. . 33, 418
,, v. Burah 22, 49,131, 248, 390, 741
,, v. City of Fredericton 60, 62, 125, 129, 171, 196, 200
,, v. Chandler 226, 230
,, Chevrier v. 473
,, v. College of Physicians 70, 420
,, v. Coote 420
,, v. Davidson ' 33
,, v. Doutrie 396
v. Eduljee Byramjee 409
Exchange Bank of Canada v. 31, 288, 293
02
In
txnrvdii
. CASES CITED.
PAGE
Reg, Falklandlslands Company 'v. 415, 419
,, nFarwell 519
,, v. Frawley 126, 154, 325
,, .72. Halliday 158
,, 9. Hart . ~ 105
” aIHodgo 50,62,63,124,125,135,147,150,153,154,161,166,191,200,
248, 294, 324, 327, 329, 741, 1054, 1056, 1058,1063, 1069
,, 7). Joykissen Mookerjee 419
,, 7). Justices of King’s 58, 161, 172, 1053
,, Kops v. 415
,, Levien 'v. 417
,, 7). Levinger 107, 418
,, 7). Local Government Board . 90
,, 6). London County Council 1083
'v. M°Derm0tt .. 413
'v. M°Dougall 159
,, Macqueen v. . 477
,, v. Maritime Bank 1, 7, 27, 31, 32, 109, 292, 480
,, v. Mohr 241, 249
,, 21. Murphy .. 418
,, '1). Nova Scotia Bank 31, 293
,, 'v. O’Rourke 113
,, 'v. Prittie 104, 161
” Qﬂhmlh 75,85,112,332,536
,, 7*. Reno and Anderson 544
,, v. Riel 11, 12, 45, 538, 547
,, v. Robertson 72
,, 7). Russell. ' See Russell below.
,, St. Catherine Milling and Lumber Company...
,, Severn v.
,, 2;. Stone
,, 2). Taylor v. Toland .
,, Toronto Bank 'v.
,, v. Wason
Windsor and Annapolis Railway Company 0.
Renoand Anderson, Reg. 2). Retemeyer 71. Obermuller
Rex 7). Cook
,, Massachusetts Bay Company 2).
Rhode Island, State of, Fletcher 72.
Richer 'v. Voyer Riel 1;. Reg.
Rioux, Griffith v.
Ritchie v. Lenour Robertson, Reg. 0.
,, v. Steadman
Robinson v. Canadian Paciﬁc Railway
Rodney, Lindo v. . .
Rokeby, Lord, Dawkins '0.
Ross or Hoskin v. Hurteau
,, 'v. Torrance
Routledge a Low Royal Aquarium 7:. Parkinson . .
Russell '0. Lefrancois ‘ ,,, _,_
94,123,295,459,484,500,
533,536
52,54,66,158,167,196
.H H. 104
52,55,125,161,195,1047
a. .. .H 107
467
.u . 106,124
292. 452. 486, 493
a. n. 544
411
. 33
. 1006
101
a. H. 425
11,12,45,538,547
.0 161,541
7,11,26,27,35,543
.. 72
72,74
. 463
.a 1006
a. n. .. 1083
.n u. .n 480
77
u. a. -. 92
.H a. .. 1083
.n a. ,n 474
cAsEs CITED. xxix
PAGE
Russell '0. Reg. 60, 62, 123, 124, 125,129, 140, 146, 151, 152, 153, 171, 197,
325, 329, 1046, 1049, 1052, 1053, 1054, 1059, 1068, 1072
Ryan, Clarkson 0. K 460
,, 'v. Devlin 22, 317
Sailand v. Gemmill... 94
St. Andrews, Minister of, Johnston 1). . 19, 405
St. Anne’s Mutual Building Society, McClanagan v. 240, 243
St. Catherine’s Milling and Lumber Company 12. Reg. 94,, 123, 295, 459, 484,
500, 533, 536
St. George’s Hospital, Philpott v. 349
St. Jacques, L’Union, de Montreal, Belisle v. 43, 45, 67, 69, 76, 84, 127, 147, 264,
. 329, 1048
St. J 01111 Corp. v. Central Vermont Railway 426, 461
St. Lawrence and Ottawa 0. Lett 444
,, Tow Boat Company, Smith v. 452
Santaoana v. Ardevol 424
Sauvageau v. Gauthier 421, 431
Schoolbred 1:. Clarke 88, 321
Soutz,Bulkeley v. 431
Severn 11. Reg. . . 52, 54, 66, 158, 167, 196
Sewell 22. British Columbia Towing Company and Moodyville Sawmill Com-
pany 322, 451
Shea, Boulton and Algoma Trading Company 'v. 481
Shenton v. Smith . 426
Sheo Singh Rai 1). Mussumut Dakho 462
Sherbrooke, M°Manamy o. 159
Sheriff’ of Middlesex, The 1079, 1082
Sherlock v.Alling 200
Shields 12. Peak 88
,, or M°Laren v. Leacoc 463
Shire v. Shire 435
Shitta, Montaignac 438
Sibnarian Ghose v. Hullodhur Doss 427, 430
Sierra Leone Justices, Rainy o. , 412
,, ‘ ,, Ramsay v. 412, 483
',, ,, Smith v. 414
Sinclair v. Broughton 418
Skinner, Victoria, In re .. _ 436
Slavin v. Corp. of Orillia 154, 167, 187, 212
Smart v. Corp. of Hochelaga 201
Smiles v.Belford 91,368
Smith v. Goldie . ss, 90, 91, 474
,, v. Justices of Sierra Leone 414
,, Merchants’ Bank v. 65, 75, 299
,, v. St. Lawrence Tow Boat Company , 452
,, Shenton v. 426
Smyth,E.rpa-rte 89
Snadden, Ko-Khine v. 424
Sookul Mohun Lall v. Beebee Doss 430
Soule, Paciﬁc Insurance Company v. 121
South-Eastern Railway Company, Lambkin v. 423
,, ,, ,, ,, ' 22. Railway Commissioners 90
,, Norwich, Township of, Huson v. 164,195
Souza’s Case 414, 420
Speaker of Legislative Assembly, Victoria, 71. Glass 12
Springle and Mayor of Montreal v. Brown 431
XXX CASES CITED.
Stace v. Griiﬁth Stark, Main v. . State of California, Almy v.
,, Maryland, Brown v.
,, ,, M°Cullogh v.
,, New Hampshire, Peirce v.
,, Rhode Island, Fletcher 7).
Stevens, Fish 71. Stewart, McLean v. Stone, Reg. v. Story, 0, on US, sec. 1076
Sulivan, Kelly v. Sullivan, Lawless v. .. .
Sulte 1'. Three Rivers Examined
Steadman, Robertson v.
,, Venning v.
Stevens v. Fish
Stewart, MacLean v. .
Sulpice, Les Ecclesiastiques de, City of Montreal v.
Sulte v._Corp. of Three Rivers Sun Fire Office v. Hart .. Surnomoyee Rance, Prannath, Roy Chowdry v.
Sussex Peerage Case Sweeny, Bank of Montreal v.
Syed Ally, East India Company v.
Symes v. Cuvillier
Tareeny Churn Bonnerjee v. Maitland
Taylor, Barton '22. Taylor, Reg. v. Teluk, Chunder Rai, Baboo, Gopal Thakoor v. Temporalities Board, Dobie v.
Tennant v. Union Bank
Theberge v. Landry
,, v. Fielding
Three Rivers, Corp- of, Sulte v-
Thurlow v. Massachusetts
Toland, Reg. v.
Toronto Bank v. Reg. ..
,, ,, v. Lambe ,, Corp. v. Att.-Gen. of Dominio
,, Municipal Corp. of, v. Virgo
Torrance, Ross v.
Tovey v. Goodhue
Town of Portland, Maher 0.
,, of Windsor v. Commercial Bank of Winnipeg
Tupper, Re
Ubdoollah Moofte Mohummud v- Baboo Mootechun
Union Bank, Tennant v. ,, ,, of Canada v. O’Gara ,, Fire Insurance Company, Clarke v.
United States License Cases
2: e 'U. ..-
,, v. Hudson
49, 124, 232, 272, 323, 533
44, 74, 73, 295, 1051, 1067
.. 22, 39, 40, 45, 83, 109, 316, 394, 440
Thomas, European and North American Railway v.
161, 176, 196, 203
54, 68, 75, 113, 129, 200, 1050
4, 74, 73, 295, 1051, 1067
PAGE
436
423
... n. 53
53,157,197,215
... 325
101
101
253
467
104
62
396
75
196
72, 74
74
253
467
.U "..442
161,176,196,203
.. 424
424
349
453
1010,1017
245,257
438
1079, 1082
52, 55, 125, 161, 195, 1047
424
226,231
...1079
101
107
467
u. .3 430
."66,1069,1075
H. n. 77
232,243,541
.H 332,334,338
3. u. 75
431
424
467
246
214
62
319
CASES CITED. xxxi
PAGE
Valin v. Langlois 11, 18, 48, 68, 90, 91, 312, 310, 318, 394, 441, 538
Vancouver, City of, v. Canadian Paciﬁc Railway . . 306
Van Reenen Orphan Board 410, 1017
Veazie Bank v. Fenno 121
Vengama Naidoo, Naragunty Lutchmeedavamah v. 438
Venning v. Steadman 74
ViCtOI‘ian Legislature v. Glass 12
Virgo v. City of Toronto ...66, 1069, 1075
Voyer, Richer v. 425
Vye, Alexander v. 479
Wade, Beckford v. 1006
Wadsworth, MuMullen v. .. 257
Walford,Dyke v. 509
Wallace, In re 414
Ward v. Reed 103
Wardens, Board of, Cooley v. 200
Warner v. Mathews 412, 414, 469
Warwick Canal Company v. Birmingham Canal Company 90
Washburn, Lin Sing v. ' 63
Wason, Reg. v. 106,124
Wentworth, Livius v. 1006
West, Corp. of Parkdale v. 459
Western Counties Railway Company v. Windsor and Annapolis Railway
Company 292, 452, 486, 493
Wetherell v. Jones... 50
Whalen,E.-vparte 65
Wheeling and Bridge Company, State of Pennsylvania v. 66
White v‘. M‘Kenzie 22
Williams, Raleigh Corp. v. 466
Wilson v. Berkley .. 33
,, v. Callender 430
,, v. Canada Shipping Company. See Lake St. Clair 71
,, Lewin v. 452
,, v.M°Guire... 391
Wilson’s Case . 1033
Willson v. Blackbird Creek Marsh Company . 200
Windsor and Annapolis Railway v. Reg. and Western Counties Railway
292, 452, 486, 493
,, Town of, Commercial Bank of Winnipeg v. 75
Wing C110ng,13u11v. 33,122
Winnipeg, City of, v. Barrett .. 333, 371, 440
,, ,, v. Logan .. . 333, 371, 440
,, Commercial Bank, Town of Windsor v. 75
Wolcott, Diggs v. 319
Woolley v. Att.-Gen. of Victoria 525
Wright, Cowan v. .. 232, 541
Yeap Cheah Neo, Ong Cheng Neo v. 425

j, XXXil )
SECTIONS OF THE BRITISH
NORTH AMERICA ACT, 30 & 341 VICT. c. 3. 1867.
See.
3’
,9
7’
9’
97
\l \O \I
\- v \I
9’
1-1
OPQHQPP@NH
11.
Preamble - - - - _ - - _
Title - - - - - _ - - _
, Application of provisions referring to the Queen - ~
Declaration of union - - - - - - -
Construction of subsequent provisions of Act - -
Four provinces - - - - - -
Provinces of Ontario and Quebec - - - -
Provinces of Nova Scotia and New Brunswick - -
Decennial census - - - - - - -
Declaration of executive power in the Queen -
Application of provisions referring to Governor-General
Constitution of Privy Council for Canada - - -
12, All powers under Acts to be exercised by Governor-
13.
14.
15.
32.
33.
34:.
General with advice of Privy Council, or alone -
Application of PI'OViSlOIlS referring to Governor-General
in Council , - - - - - - -
Power to Her Majesty to authorize Governor-General
to appoint deputies - - - - - -
Command of armed forces to continue to be vested in
the Queen - - - - - - - -
Seat of Government of Canada - - - - _ -
, Constitution of Parliament of Canada- - - -
, Privileges, &c., of Houses - - - - - _
, First session of the Parliament of Canada - - -
I
I
l
Yearly session of the Parliament of Canada
Number of Senators - - - -- - _ _
Representation of provinces in Senate - -
Qualiﬁcations of senator - - _ - _ _
Summons of senator - - - - _ -
Summons of ﬁrst body of senators - - - -
Addition of senators in certain cases - - - —
, Reduction of Senate to normal number - - -
Maximum number of senators - - - - —
Tenure of place in Senate - - - - — -
Resignation of place in Senate - - - - -
Disqualiﬁcation of senators - - - - -
Summons on vacancy in Senate - - - - -
Questions as to qualiﬁcations and vacancies in Senate -
Appointment of Speaker of Senate -
,7
”
,9
99
9,
10
11
,9
9’
12
9’
13
a’
14
,3
15
9’
,9
3’
16
9,
SECTIONS OF THE B.N.A. ACT.
xxxiii
Sec. 35,
\b \a \0 \I \l \t
v \I \I \I \- \I
\D
\I
\I
\D
\l \I \I \- \I
u u \p o \‘a
36.
37.
38.
39.
40.
41.
42.
43.
44.
45
46
47.
48.
49.
50.
51.
53.
54.
55.
56.
57.
58.
59.
60.
61.
62.
63.
64.
65.
66.
67
68.
69.
70.
71
72.
73
74.
75.
Quorum of Senate _ - - - - - -
Voting in Senate - - - - - - -
Constitution of House of Commons in Canada -
Summoning of House of Commons - - - -
Senators not to sit in House of Commons - - -
Electoral districts of the four provinces - - -
Continuance of existing election laws until Parliament
of Canada otherwise provides - - - -
\Vrits for ﬁrst election - - - - _ - -
As to casual vacancies - - - -- - -
As to election of Speaker of House of Commons - -
As to ﬁlling up vacancy in ofﬁce of Speaker - -
Speaker to preside - - - - - - -
Provision in case of absence of Speaker - - -
Quorum of House of Commons - - - - -
Voting in House of Commons - - - - -
Duration of House of Commons - - - - -
Decennial readjustment of representation - - -
Increase of number of House of Commons - - -
Appropriation and tax Bills -
Recommendation of money votes - - - -
Royal assent to Bills - - - - v - - -
Disallowance by Order in Council of Act assented to by
Governor-General - - - - - -
signiﬁcation of Queen’s pleasure on Bill reserved -
Appointment of Lieutenant- Governors of provinces -
Tenure of oﬁice of Lieutenant-Governor - - -
Salaries of Lieutenant-Governors - - - -
Oaths, &c., of Lieutenant-Governor - - - -
Application of provisions referring to Lieutenant-
Governor - - - - - - - -
Appointment of executive ofﬁcers for Ontario and
Quebec - - - - - - - -
Executive Government of Nova Scotia and New
Brunswick - - - - - - -
Powers to be exercised by Lieutenant-Governor of
Ontario or Quebec with advice or alone - —
Application of provisions referring to Lieutenant-
Governor in Council - - _ _ _ _
Administration in absence, &c., of Lieutenant-Governor
Seats of provincial governments ~ - - - -
Legislature for Ontario - - - - _
Electoral districts - - - - - - _
Legislature for Quebec - - - - _ -
Constitution of _ legislative council - - - _
Qualiﬁcation of legislative councillors - - - _
Resignation, disqualiﬁcation, 850. - - - _
Vacancies - - - - - - - -
PAGE
16
,9
,9
17
,9
9,
18
22
99
23
,9
3,
,5
9,
3’
9’
9’
24
25
9’
26
9’
27
28
30
H
,2
31
32
34
35
,9
3,
9’
36
37
9,
xxxiv
SECTIONS OF THE B.N.A. ACT.
Sec. '76,
,7
'77.
78.
79.
80.
81.
82.
83.
84.
Questions as to”vacancies, &c. - - - _
Speaker of legislative council - - - _ _
Quorum of legislative council - - - _ _
Voting in legislative council - - - _
Constitution of legislative assembly of Quebec - -
First session of legislatures - -
Summoning of legislative assemblies - - - -
Restriction on election of holders of offices - - -
Continuance of existing election laws - - - -
, Duration of legislative assemblies - - - -
Yearly session of legislature - - - - _
, Speaker, quorum, 85c. - - _ _ _ _
Constitutions of legislatures of Nova Scotia and New
Brunswick - - - - - - _
First elections - - - - - - - _
Application to legislatures of provisions respecting
money votes, 85c. - - _ - _ _
{ Powers of Parliament - - - - _ _ -
Legislative authority of Parliament of Canada - -
(1.) The public debt and property -
(2.) The regulation of trade and commerce - -
(3.) The raising of money by any mode or system of
taxation - - - - - _ -
(4.) The borrowing of money on the public credit -
(5.) Postal service - 4 - - - - -
(6.) The census and statistics - - - - -
(7.) Militia, military, and naval service and defence -
(8.) The ﬁxing of and providing for the salaries and
allowances of civil and other officers of the
Government of Canada - - - - -
(9.) Beacons, buoys, lighthouses, and Sable Island -
(10.) Navigation and shipping - - - - -
(11.) Quarantine, and the establishment and mainte-
nance of marine hospitals - - - -
(12.) Sea coast and inland ﬁsheries - - - -
(13.) Ferries between a province and any British or
foreign country, or between two provinces -
(14.) Currency and coinage - - - - -
(15.) Banking, incorporation of banks, and the issue of
paper money - - - - - -
(16.) Savings banks - - - - - - -
(17.) Weights and measures - i- - - -
(18.) Bills of exchange and promissory notes - -
(19.) Interest - - - - - - - -
(20.) Legal tender - - - - - - -
( 21.) Bankruptcy and insolvency - - - -
(22.) Patents of invention and discovery " - -
(23.) Copyrights. [See Acts all set out, p. 846 et seq]-
PAGE
3'7
9’
,9
,5
38
3,
,9
3’9
40
41
9,
,9
4:3
,9
52
66
69
9’
'70
9’
,9
71
9,
'74
9,
,9
76
Q’
'78
3’
88
91
SECTIONS OF THE B.N.A. ACT.
XXXV
Sec. 91, (24.) Indians, and lands reserved for the Indians -
(25.) Naturalization and aliens - - -
(26.) Marriage and divorce - - L -
(27.) The criminal law. except the constitution of courts
of criminal jurisdiction, but including the pro-
cedure in criminal matters - - - -
(28.) The establishment, maintenance and manage-
ment of penitentiaries - - - - -
(29.) Such classes of subjects as are expressly excepted
in the enumeration of the classes of subjects by
this Act assigned exclusively to the legislatures
of the provinces - - -
v 92 { Exclusive powers of provincial legislatures - -
' Subjects of exclusive provincial legislation — -
(1.) Amendment from time to time, notwithstanding
anything in this Act, of the constitution of the
province except as regards the oiiice of Lieu-
tenant-Governor - - - - - -
(2.) Direct taxation within the province in order to
the raising of a revenue for provincial pur-
poses - - - - _ _ _ _
(3.) The borrowing of money on the sole credit of the
province - - - - _ - _
(4.) The establishment and tenure of provincial
offices, and the appointment and payment of
provincial oﬂicers - - - - '- -
The management and sale of the public lands
belonging to the province, and of the timber
and wood thereon - - - - - -
The establishment, maintenance, and management
of public and reformatory prisons in and for the
province - - - - - - -
The establishment, maintenance, and management
of hospitals, asylums, charities, and eleemosy-
nary institutions in and for the province other
than marine hospitals - - - - -
(8.) Municipal institutions in the province - -
(9.) Shop, saloon, tavern, auctioneer, and other
licences in order to the raising of a revenue for
provincial, local, or municipal purposes - -
Local works and undertakings other than such as
are of the following classes :—
(a.) Lines of steam or other ships, railways,
canals, telegraphs, and other works
and undertakings connecting the pro-
vince with any other or others of the
province, or extending beyond the
limits of the province - - -
(5-)
(6-)
(7-)
(1(1)
PAGE
101
102
108
159
,9
111
113
123
123
123
123
124
124
126
224
XXXVi
SECTIONS OF THE B.N.A. ACT.
Sec. 92, (10.) Local works, &c.—-eont.
(5.) Lines of steamships between the pro-
vince and any British or foreign
country - - - ~ - -
(0.) Such works as, although wholly situate
within the province, are before or.
after their execution declared by the
Parliament of Canada to be for the
general advantage of Canada, or for
the advantage of two or more of the
provinces - - - - -
(11.) The incorporating of companies with provincial
objects - - - - - - -
(12.) The solemnization of marriage in the province -
(13.) Property and civil rights in the province - -
(14.) The administration of justice in the province, in-
cluding the constitution, maintenance, and or-
ganization of provincial courts, both of civil
and of criminal jurisdiction, and including pro-
cedure in civil matters in those courts - -
(15.) The imposition of punishment by ﬁne, penalty, or
imprisonment, for enforcing any law of the
province made in relation to any matter coming
within any of the classes of subjects enumerated
in this section - - - - - -
(16.) Generally, all matters of a merely local or private
93.
94.
95.
nature in the province - - - - -
Legislation respecting education - - - -
Legislation for uniformity of laws in three provinces -
Concurrent powers of legislation respecting agriculture,
850. - - - - - - - - _
Appointment of judges - - - _ - _
, Selection of judges in Ontario, 850. - - - -
, Selection of judges in Quebec - - - - _
_ Tenure of 011106 of judges of superior courts - -
Salaries, 810., of judges - - - - - _
General court of appeal, 850. [See for Practice of
the Privy Council] - - - - _ _
Creation of Consolidated Revenue Fund - - -
, Expenses of collection, 85c. - - - - _
, Interest of provincial public debts
Salary of Governor-General
Appropriation from time to time - - - -
Transfer of stocks, 850. ' - - - - — -
Transfer of property in schedule - 4 - '-
Property in lands, mines, &c. - - - - -
Assets connected with provincial debts ~ - -
Canada to be liable for provincial debts - -
PAGE
225
‘U
234
249
257
308
324
328
332
388
389
”
393
394
”
394
483
485
9’
4,8,6
,9
9,
' 499
526
9,
SECTIONS OF THE BN.A. ACT.
xxxvii
Sec. 112, Debts of Ontario and Quebec - - - -
w v v u v \- v u \0 \- \,
\- u v v v \0 so so \0 so \5
\D
\O
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.
124.
125.
126.
127.
128.
129.
' 130.
131.
132.
133.
134.
135.
136.
137.
138.
139.
140.
141.
142.
143.
144.
145.
146.
147.
Assets of Ontario and Quebec - - - -
Debt of Nova Scotia - - _ - _
Debt of New Brunswick -- - - -
Payment of interest to Nova Scotia and New Bruns-
wick - _ .. y _ _ _ _
Provincial public property - - - -
Grants to provinces - - - - _
Further grant to New Brunswick - - -
Form of payments - _ - _ _
Canadian manufactures, &c. - - - -
Continuance of customs and excise laws - -
Exportation and importation as between two provinces
Lumber dues in New Brunswick - - -
Exemption of public lands - - - -
Provincial consolidated revenue fund - -
As to legislative councillors being senators -
Oath of allegiance, &c. - - - - -
Continuance of existing laws, courts, oﬂiccrs, 85c.
Transfer of officers to Canada - - -
Appointment of new officers - - - -
Treaty obligations - - - - _ -
Use of English and French languages - -
Appointment of executive oﬁicers for Ontario
Quebec - - - - - _ -
Powers, duties, &c., of executive oﬁicers
Great seals - - - - _ - _
Construction of temporary Acts - - -
As to errors in names - - - _ _
As to issue of proclamations before union to com-
mence after union - - - - -
As to issue of proclamations after union
Penitentiary - - - - - - _
Arbitration respecting debts, &c. - - -
Division of records - - - - - _
Constitution of townships in‘Quebec - -
Duty of Government and Parliament of Canada to
make railway herein described - - -
Power to admit Newfoundland, 850., into the union -
As to representation of Newfoundland and
Edward Island in Senate - - _
Schedules, ﬁrst - - - - - _
,, second - - - - - -
,, third - - - - - -
,, fourth - - - - - -
,, ﬁfth - - - - - -
Prince
PAGE
532
553
,’
9,
9,
534
3’
535
9’
3’
9,
536
537
,9
,9
541
,9
53.2
543
9,
9’
544
3’
515
9’
”
9’
546
9’
547
548
552
,9
6 Declaration of qualiﬁcation - - - _
9’
553
( xxxviii
)
TABLE OF STATUTES GIVEN IN
14 Geo.
14 Geo.
31 Geo.
33 Geo.
43 Geo.
49 Geo.
C.
wwwwww
90°?
C.
1 & 2 Geo. 4.
APPENDICES A AND B.
83. -
88. -
31. -
76. -
138. -
27. -
c. 66.
3 Geo. 4. c. 119.
5 Geo. 4. c. 67. -
5 Geo. 4. c. 68. -
6 Geo. 4. c. 59. -
6 Geo. 4. c. 75. ~
7 & 8 Geo. 4.
c. 62.
2 & 3 Will. 4. c. 78.
2 & 3 Will. 4. c. 92.
3 & 4. Will. 4. c. 4.1.
1 Vict. c. 9.
l & 2 Vict.
2 8a 3 Vict.
3 & 4 Vict.
3 & 4 Vict.
5 8c 6 Vict.
6 & 7 Vict.
6 8L 7 Vict.
7 8L 8 Vict.
7 85 8 Vict.
8 & 9 Vict.
c
o
c
c
c
5 8c 6 Vict. c.
c
c
c
c
c
. 59. -
. 53. -
. 35. -
.78. -
. 45 -
120. -
. 34. -
. 38. -
. 12. -
. 69. -
93. -
10 86 11 Vict. c. 95.
12 8a 13 Vict.
14 & .15 Vict.
14 & 15 Vict.
16 8c 17 Vict.
16 & 17 Vict.
17 8c 18 Vict.
18 8c 19 Vict.
19 81: 2O Vict.
20 & 21 Vict.
2O & 21 Vict.
21 8b 22 Vict.
. 96.
. 63.
. 83.
. 21.
. 85.
. 91.
. 23.
. 34.
. 39.
. 99.
c
c
c
c
c
c. 118.
c
c
c
e
0

PAGE
- - 556
- - 565
- - 566
- - 594
,9
- - 595
- - 596
- - 605
- - 649
,9
- - 653
3’
- 654
- -1005
- ~1006
- - 1025
- - 1025
~ - 711
- - 713
- - 718
- - 719
- - 721
REFERENCE TO STATUTES.
xxxix
22 Vict. c. 26.
‘14 85 V1013.
44 85 45 Vict.
22 85 23 Vict. c. 10.
22 85 23 Vict. c. 26.
26 85 27 Vict. c. 76.
26 85 27 Vict. c. 83.
28 85 29 Vict. c. 14.
28 85 29 Vict. c. 63.
28 85 29 Vict. c. 64.
28 85 29 Vict. c. 106.
28 85 29 Vict. c. 113.
28 85 29 Vict. c. 116.
29 85 30 Vict. c. 65.
29 85 3O Vict. c. 67.
30 85 31 Vict. c. 3. -
Quebec Resolutions.
31 85 32 Vict. c. 29.
31 85 32 Vict. c. 105.
31 85 32 Vict. c. 129.
32 85 33 Vict. c. 10.
32 85 33 Vict. c. 11.
32 85 33 Vict. c. 101.
33 85 34 Vict. c. 14.
33 85 34 Vict. c. 52.
33 85 34 Vict. c. 66.
33 85 34 Vict. c. 82.
33 85 34 Vict. c. 90.
33 85 34 Vict. c. 102.
34 85 35 Vict. c. 28.
34 85 35 Vict. c. 91.
35 85 36 Vict. c. 29.
35 85 36 Vict. c. 39.
35 85 36 Vict. c. 45.
36 85 37 Vict. c. 45.
36 85 37 Vict. c. 66.
37 85 38 Vict. c. 26.
37 85 38 Vict. c. 27.
37 85 38 Vict. c. 41.
37 85 38 Vict. c. 77.
38 85 39 Vict. c. 38.
38 85 39 Vict. c. 53.
38 85 39 Vict. c. 88.
39 85 40 Vict. c. 59.
40 85 41 Vict. c. 23.
40 85 41 Vict. c. 59.
41 85 42 Vict. c. 67.
43 85 44 Vict. c. 20.
c.
c.
3. -
58.
[Extract from .
PAGE
- 726
- 727
- 728
- 732
- 733
- 734
- 738
- 741
- 742
- 743
9’
- 745
- 746
- 754
- 755
- 758
,9
- 762
99
- 764
- 774
- 786
- 787
- 789
- 773
- 799
-1025
- 800
- 801
- 803
- 809
- 1026
- 811
- 820
- 821
- 822
- 3’23
- 355
- 1026
- 824
- 812
- 825
- 818
- 1028
- 825
x1 REFERENCE To STATUTES.
PAGE
44 & 45 Vict. c. 69. v- - - - - » — -- - - - 826
45 & 46 Vict. c. 72. [Extract from] ~ - ~ - ’- - - 819
45 & 46 Vict. c. 76. - - . - - - - - - 837
45' a 47 Vict. c. 30. - - - - - - - - ,,
46 8c 47 Vict. c. 57. - - - - — - - - 1028
47 81; 4:8 Vict. c. 24. - - - - - - — - 84:0
47 8t 48 Vict. c. 31. - - - - ' - - - - 841
47 86 48 Vict. c. 62. - - — - ‘ - - - - 84:0
Copyright Acts - - - - - - - - - 84:6
Berne Convention Act (49 85 5O Vict. c. 33.) - - - - 868
49 & 50 Vict. c. 33. - - - - - - - — ,,
49 86 50 Vict. C. 35. - — - - - - - - 887
50 & 51 Vict. c. 13. - - - - — - - - ,,
50 85 51 Vict. c. 70. — - - - - - - 1029
51 85 52 Vict. C. 65. ~ - - - - - - " 53 a 54 Vict. c. 27. - - - - - - - - ,,
53 85 54 Vict. c. 37. - - - — - - - - 1031
American Copyright Act [as amended, 1891] - - - - 875
55 85 56 Vict. c. 6. - - - - - - - - - 903
55 & 56 Vict. c. 35. r - -~ - - - - — — - 908
55 8D 56 Vict. C. 52. - - - - - - - - 906-
Behring Sea Award - - - - - - - - 91:0“- ‘
57 & 58 Vict. c. 2. - - - - - - - - - ,,
57 85 58 Vict. c. 30. - - - - - - - - - 926
57 & 58 Vict. c. 39. - - - - - - - - ,,
Merchant Shipping Act, 1894 [summarized] 57 & 58 Vict. c. 60. 927
58 & 59 Vict. c. 34. - - - - - — - - 1002
58 85 59 Vict. c. 44. - - - - - - - - 1030
59 Vict., Sess. 2. c. 3. I - - - — ~ 1003
CANADIAN
LAW.
BRITISH NORTH AMERICA ACT
[IMPERIAL].
30° VICTORIZE, c. 3.
An Act for the Union of Canada, Nova Scotia, and
New Brunswick, and the Government thereof;
and for purposes connected therewith.
[29th March 1867.]
‘ HEREAS the provinces of Canada, Nova Scotia,
and New Brunswick have expressed their desire
‘ to be federallyl united into one Dominion under the
‘ Crown of the United Kingdom of Great Britain and
‘ Ireland, with a Constitution similar in principle to
‘ that of the United Kingdom :
1 The provincial legislatures
do not occupy the subordinate
position of independent municipal
institutions. They “derive no au—
thority from the Government of
Canada, and their status is in no
way analogous to that of a municipal
institution, which is an authority
constituted for the purpose of local
administration.”
“ The object of the Act of 1867
was neither to weld the provinces
into one, nor to subordinate pro-
vincial governments to a central
authority, but to create a federal
govermnent in which they should
all be represented, entrusted with
the exclusive administration of
affairs in which they had a common
interest, each province retaining its
independence and autonomy,” with
S 2340.
the prerogative of the Queen as
extensive in each province (except
where expressly limited by local
law or statute) as in Great Britain.
These “objects were accomplished
by distributing between the Do-
minion and the provinces, all
powers, executive and legislative,
and all public property and re-
venues which had previously be-
longed to the provinces; so that the
Dominion Government should be
vested with such of these powers,
property, and revenues as were
necessary for the due performance
of its constitutional functions, and
that the remainder should be re-
tained by the provinces for the
purpose of provincial government.”
The Queen’s prerogative not being
touched. See Maritime Bank of
A
FEDERALLY
UNITED.
2 B.N.A. ACT, s. 1.—1NDEPENDENCE RETAINED.
Short title.
Application of
provisions
referring to
the Queen.
‘ And whereas such a Union would conduce to the
‘ welfare of the provinces and promote the interests
‘ of the British Empire:
‘ And whereas on the establishment of the Union
‘ by authority of Parliament it is expedient, not only
‘ that the constitution of the legislative authority in the
‘ Dominion be provided for, but also that the nature
‘ of the executive government therein be declared :
‘ And whereas it is expedient that provision be made
‘ for the eventual admission into the Union of other
‘ parts of British North America :’
' Be it therefore enacted and declared by the Queen’s
most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and
by the authority of the same, as follows:
I.——PRELIMINARY.
1. This Act may be cited as The British North
America Act, 1867.
2. The provisions of this Act referring to Her
Majesty the Queen extend also to the heirs and suc-
cessors of Her Majesty, kings and queens of the
United Kingdom of Great Britain and Ireland.
Canada 11. New Brunswick Be-
ceiver-General, July 2, [1892]
A. C. 437; 61 L. J. P. C. 75; 67
L. T. 126; 8 T. L. R. 677; report-
ed below 17 8t 20 S. C. R. 657, 695.
“ The declarations of the Dominion
Parliament are not, of course, con-
clusive upon the construction of the
B. N. A. But when the proper
construction of the language used
in that Act to deﬁne the distribution
of legislative powers is doubtful,
the interpretation put upon it by
the Dominion Parliament in its
actual legislation may properly be
considered.” See Citizens’Insurance
Co. '0. Parsons, Nov. 26, 1881, 7 App.
Cas.p.116; 51 L.J.P.C. 11; 45 L.T.
721; and inCt.below, 4S.C.R.2l5.
Also “it is not necessary to rest
the authority of the Dominion
Government to incorporate com-
panies on this speciﬁc and enume-
rated power [‘ the regulation of trade
and commerce ’]. The authority
would belong to it by its general
power over all matters not coming
Within the classes of subjects as-
signed exclusively to the legisla-
tures of the provinces, and the only
subject on this head assigned to
the provincial legislatures being
‘ the incorporation of companies
with provincial objects,’ it follows
that the incorporation of companies
for objects other than provincial
falls within the general powers of
the Parliament of Canada.” I bid.
B.N.A. ACT, 3. 3.—HISTORY. 3
II.—UNIoN.
3. It shall be lawful for the Queen, by and with
the advice of Her Majesty’s most Honourable Privy
Council, to declare by proclamation that, on and after
a day therein appointed, not being more than six
months after the passing of this Act, the provinces
of Canada, Nova Scotia, and New Brunswick shall
form and be one Dominion under the name of Canada ,-
and on and after that day those three provinces shall
form and be one Dominion under that name accord-
ingly.
4. The subsequent provisions of this Act shall, unless
it is otherwise expressed or implied, commence and have
eifect on and after the Union, that is to say, on and after
the day appointed for the Union taking effect in the
Queen’s proclamation; and in the same provisions, un-
less it is otherwise expressed or implied, the name
Canada shall be taken to mean Canada as constituted
under this Act.
5. Canada shall be divided into four provinces,
named Ontario, Quebec, Nova Scotia, and New Bruns-
wick‘.1
The ﬁrst Parliament at Ottawa
June 8, 1866. Dominion consti~
tuted 1867, 30 Vict. c. 3., and
made effective by Proclamation
1st July 1867. Hudson Bay
territories added 1870. Supreme
Court established and met July 5,
1 The B. N. A. Act, 1871, 34
Vict. c. 28., provided that the Do-
minion might admit or establish new
provinces. (See Act, post.) And
the B. N. A. Act, 1886, 49 85 5O
Vict. c. 35., enacted that represen~
tation in the Dominion Parliament
might be given to territories out- 1876. All adjacent territories,
side a province. except Newfoundland, annexed
The Dominion now, May 1895, 1880. The Dominion also i11-
consists of the provinces of On-
tario, Quebec, Nova Scotia, New
Brunswick, Brittle/1. Columbia,
Prince Edward Island, North-
PVest Territories, rllanz'toba, in-
cluding Keewatin.
NEWFOUNDLAND has not yet
joined the Union, but negotiations
are far advanced towards that de-
sirable object.
History. — The DOMINION. -—
eludes all the Arctic islands ex-
cept Greenland, and Anticosti,
Prince Edward Island and Cape
Breton 011 the east, and Vancouver
and Queen Charlotte’s Island on the
west. The Governor-General is
appointed and paid by the Crown,
and is supported by a Privy Coun-
cil. The Lieutenant - Governors
are paid by Canada. The Senate
is nominated for life. The Domi-
nion House of Commons consists
Declaration of
Union.
Construction
of subsequent
provisions of
Act.
Four provinces.
.12
4 B.N.A. ACT, S. 5.-HISTORY.
HiSw’?/~—THE of 215 members :-—92 for Ontario,
DOMINION.
65 Quebec, 21 Nova Scotia, 16 ‘
New Brunswick, 5 Manitoba, 6
British Columbia, 6 Prince Ed-
ward Island, and 4 the North-
West Territories. Each province
has a Lieutenant - Governor ap~
pointed for ﬁve years by the Go-
vernor-General, and a Council with
a Legislative Assembly; there being
a second chamber in Quebec, Nova
Scotia, and Prince Edward Island.
Each province has power to alter
its constitution.
ONTARIO was the old Province of
Upper Canada. The Parliament
met 17 September 1792 (see 31
Geo. 3. c. 31.), and introduced the
English civil law, trial by jury, and
the recovery of small debts, To-
ronto being selected as the capital.
At the conquest of Quebec To-
ronto was a forest, and New Bruns-
wick was known as Sunbury. The
revolt of the American Colonies
was the dawn of the prosperity of
Upper Canada. Many thousands of
Royalists ﬂed into Canada, and the
“Unity of the Empire ” list was
made out. The children of these
fugitives, as well as those hereafter
born, were declared entitled to 200
acres of land on reaching twenty-
one years of age.
QUEBEC was the old Province of
Lower Canada. By the fall of
Quebec in 1759 the English be-
came masters (see Treaty of Paris,
10 February 1763) of territory
which had been for 150 years a
constant source of strife between
France and England. Therefore,
in Quebec, the old French law and
language prevails. At the present
day the Napoleon Code, as re-
vised by His Majesty’s law oﬂicers
about 1770, is the basis of the civil
law (see the law officers’ letter to
Board of Trade, 16 April 1766),
but the English criminal law has
been enforced there since 1760.
(See also debates in Parliament on
Quebec Bill, 1774.) The evils of
seignorial tenures (abolished 1854)
and equal partition of land among
the children existed. The Act of
1774 (14 Geo. 3. c. 83.), which
formed the several territories and
possessions, excluding Newfound-
land, into the Province of Quebec,
gave Roman Catholics the free exer-
cise of their religion, their accustom-
ed dues, with the exception of those
lands held by Protestants, who were
freed from payment, and repealed
the Proclamation of 1763, and es-
tablished new boundaries. The
French law was declared the rule
for decision relative to property
and civil right, while the English
criminal law was established in
perpetuity. (See Macmillan’s Hist.
Canada, p. 198.) Both the civil
and criminal codes were liable to
be altered by the Governor and
Legislative Council. That Council
was limited to dealing with local
and municipal taxes and the ad-
ministration of internal affairs.
The Imperial Parliament reserved
to itself external taxation. Every
ordinance passed was to be trans-
mitted to England for approval of
the King. In 1785 the Habeas
Corpus Act was reintroduced into
Canada. In 1791, 31 Geo. 3. c. 31.
divided the Province of Quebec
into two provinces, to be called the
Province of Upper Canada and the
Province of Lower Canada, each
receiving a Legislative Council and
Assembly. 17 December 1791 the
ﬁrst Parliament of Lower Canada
was opened, the journals being
kept in both languages—the Legis-
lative Council appointed by the
Crown, and a House of Assembly
elected by the people. The Lower
Province had a Governor, and the
Upper a Lieutenant-Governor. By
this Act the clergy reserve lands
(given .bsolutely to Canada, 16 85
17 Vict. c. 21., and abolished) were
appropriated for the beneﬁt of the
Protestant clergy of the established
Church of England, which in-
cluded the clergy of the established
Church of Scotland. After the re-
bellion of Lower Canada of 1838,
the Constitution was suspended
(1 & 2 Vict. c. 9.), and by 3 8t 4
Vict. c. 35. the legislative bodies
of the two provinces were consoli-
B.N.A. ACT, 5. 5.-'-HISTORY. 5
dated under the name of Province
of Canada. In 1840 municipal in-
stitutions were established. By
17 85 18 Vict. c. 118. the legisla-
ture was empowered to constitute
the legislative council into an elec-
tive body.
NovA SCOTIA, called by the
French L’Acadie or Acadia, was
the fabled home of “ Evangeline.”
James 1st created baronets of Nova
Scotia, 28 May 1628. (See letters
to Scottish Privy Council, 5 August
1621 ; 18 October 1624; 23 March
1625.) The last of these baronets
was created 1707. (See Major
Duncan’s list of these baro-
nets.) In 1632 France had pos-
session under the treaty of St.
Germain-en-Laye, but we obtained
possession by the Treaty of Utrecht.
By this treaty the French made
over to England “ All Acadia com-
prised within its ancient bounda-
ries.” France retained Cape Breton
and Prince Edward Island. The
French sought to conﬁne this
Acadia to the peninsula, Nova
Scotia; but the English main-
tained the ceded territory included
all the surrounding islands and
part of the mainland, called now
New Brunswick. There was a
constant quarrel over this, and, be-
coming suspicious of the French
population, England, in 1749,
called upon them to take a new
oath or to leave Acadia. They de-
layed, and eventually were, for the
most part, expatriated. In 1758
Prince Edward Island was added,
and an Assembly met. Prince Ed-
ward Island was separated in 1770,
and in 1763 Cape Breton was
added, but in 1784 separated, and
in 1820 re-annexed. Responsible
government in 1848. The Legis-
lative Assembly had no power to
remove one of its members: Lan-
ders v. Woodworth, 2 S. C. R. 159.
See Kielley 'v. Carson, 4 M00. P.
C. 75; Dill’s case, 1 M00. P. C.
N. S. 487; Glass’s case, L. R. 3
P. C. 560.
NEW BRUNSWICK was separated
from Nova Scotia 1784, and given
responsible government 1848.
BRITISH COLUMBIA was admitted
into the Union as from 20 July
1871. (See O. in C. 16 May 1871.)
Governor, Council, and Legislative
Assembly, 1858 (see 21 85 22 Vict.
c. 99.); (see 26 & 27 Vict. c. as to boundaries); and Assembly,
1871. Vancouvers Island was leased
to Hudson Bay Company 1843,
made a Crown Colony 1849, given
a Governor and Council 1850, and
was united to British Columbia
1866 (29 85 3O Vict. c. 67.), and
entered the Dominion with British
Columbia.
PRINCE EDWARD ISLAND (see
Nova Scotia).—It had a Governor
and Council, 1770; responsible
government, 1851. It was ad
mitted into the Union 1 July 1873.
Appeals had to go from the Sn-
preme Court to Governor and Coun-
cil for trial, and then to the Privy
Council. (See In re Cambridge,
11 February 1841, 3 M00. P. C.
175.) But see Kelly 10. Sulivan,
1876, 1 S. C. R. 1.
NoRTH - WEST TERRITORIES ——
Part of Rupert’s Land—By the
Dominion Act (38 Vict. 3. 49.)
these territories, with the exception
of Manitoba and Keewatin, were
created a separate colony. (See
Proclamation, 7 October 1876, and
43 Vict. c. 25.) It was governed
by a Lieutenant’ Governor, subject
to instructions from Ottawa. Legis-
lative Assembly, 1888. Riel exe-
cuted after an unsuccessful appli-
cation to the Queen in Council,
1885, for a new trial.
MANITOBA -—-Part of Rupert’s
Land, Red River settlement of
Hudson Bay Co. (See sec. 146 of
the Act.) —— This province was
formed by Dominion Act, 33 Vict.
c. 3., and July 15, 1870, admitted
into the Union. By Dominion Act,
44 Vict. c. 14., its boundaries were
extended. Its Assembly consists
of 38 members. Keewatin was
cut out of the north of Manitoba
History—Tm:
DOMINION.
6 B.N.A. ACT, s. 5.—HISTOBY.
Histm'3/-—THE in 1876 and placed under the go-
DOMINION.
Provinces of
Ontario and
Quebec.
vernment of the Lieutenant-Go-
vernor of lllanitoba, who is em-
powered to appoint justices.
NEWFOUNDLAND.—-Valuable for
ﬁshing stations since 1620. Ab-
solutely obtained by the peace of
Utrecht, 1713. Along the Atlantic
side of Nova Scotia, Cape Breton
(not British until 1758), and N ew-
foundland are innumerable banks of
shallow seas called the “ Banks,”
which are swept by the powerful
Atlantic current called the Gulf
Stream. These banks are most fa-
vourable for the propagation of cod
ﬁsh and lobsters, and the result is
that there have been constant quar-
rels between the English, French,
and Americans as to the right to
ﬁsh and cure ﬁsh; the French
having the adjacent islands of St.
Pierre and Miquelon; and the
Americans the adjoining coast.
(See Treaties of Utrecht, 1713, and
Versailles, 1763, as to French claims;
and as to American, the Treaty of
Ghent, 1814; London, 59 Geo. 3.
c. 38.; Treaty of \Vashington, 1842,
wide Hertslet; and Behring Treaty,
1894.) Its constitution was sus-
pended 1842-7. Responsible gov-
ernment 1855. Has a Governor with
a Council, and a House of Assembly.
Acts of Imperial Parliament dealing
with Newfoundland, 10 8t 1 1 Will. 3.
(1699) c. 25.; 2 Geo. 2. c. 36. s. 25
[seamen]; 15 Geo. 3. (1775) c. 31.
s. 13 [Seamen]. Above in part re-
pealed by 5 Geo. 4. 0.51. 31 Geo.
3. (1791) c. 29. [giving right of
appeal to P. C.]; 32 Geo. 3. (1792)
c. 46. [Courts of Judicature and
right of appeal to P. C.] ; 33 Geo.
3. (1793) c. 76. [the Supreme Court
and Admiralty Court]; 49 Geo. 3.
(1809) c. 27. [Labrador]; 5 Geo.
4. (1824) c. 67. [appeals to High
Court Admiralty P. C.] ; 5 Geo. 4.
(1824); c. 68. [repealing 57 Geo.
3. c. 51.; and celebration of mar-
riage by person licensed by Gover-
nor and before two witnesses to be
valid]. 2 8t 3 Will. 4. c. 78.
[gives power to Assembly to alter
5 Geo. 4. c. 67.; 5 Geo. 4. c. 68.;
10 Geo. 4. c. 17.]; 5 & 6 Vict.
(1842) c. 120. [Property qualiﬁca-
tion of member of Assembly made
£500, Her Majesty’s prerogative
preserved]; 12 & 13 Vict. (1849)
c. 21. [affirming 9 & 10 Vict. c. 3.
and 10 Vict. c. 1. Newfoundland
Acts].
LABRADOR, from the river of St.
John to Hudson Straits, with the
islands of Anticosti and Madelaine,
and all smaller islands was attached
to Newfoundland, 1763. (See Pro-
clamation, 10 February.) Restored
to Province of Quebec and Nova
Scotia, 1774. (See 14 Geo. 3. c.
83.) Its-annexed, except Made-
laine Island, to Newfoundland,
1809. (49 Geo. 3. c. 27.) Now
part of Labrador, by letters patent,
28 March 187 6, belongs to Quebec;
to the North-West Terriories ; and
to Newfoundland.
The above is a short account of the
component parts of this great de-
pendency of the British Crown in
North America.
6, The parts of the province of Canada (as it exists
at the passing of this Act) which formerly constituted
respectively the provinces of Upper Canada and Lower
Canadal shall be deemed to be severed, and shall form
two separate provinces.
The part which formerly con-
stituted the province of Upper Canada shall constitute
the province of Ontario ,- and the part which formerly
1 See Note, sec. 5.
B.N.A. ACT, S. 7.—EXECUTIVE POWER. T7
constituted the province of Lower Canada shall constitute
the province of Quebec.
'7, The provinces of Nova Scotia 1 and New Bnans-
wick‘ shall have the same limits as at the passing of
this Act.
8, In the general census of the population of Canada
which is hereby required to be taken in the year one
thousand eight hundred and seventy-one, and in every
tenth year thereafter, the respective populations of the
four provinces shall be distinguished.
IIL—ExEcUTIvE POWER.
9, The executive government and authority of and
over Canada is hereby declared to continue and be vested
in the Queen.2
10, The provisions of this Act referring to the
Governor-General extend and apply to the Governor-
General for the time being of Canada or other the chief
executive oﬂicer or administrator for the time being
carrying on the government of Canada on behalf and in
the name of the Queen, by whatever title he is desig-
nated.
1 See Note, sec. 5.
2 The Lieutenant-Governor,when
appointed, represents the Queen for
all purposes of provincial govern-
ment; for, by sec. 58,the appointment
of a provincial governor is made by
the “ Governor-General in Council
by instrument under the great seal
of Canada,” or, in other words, by
the executive Government of the
Dominion, which is by this sec. 9.
expressly declared “ to continue
and be vested in the Queen.”
(Maritime Bank of Canada 2;.
New Brunswick Receiver-General,
17 S. C. R. 657; July 2 (1892-)
A. C437; 61 L. J. 75; 67 L. T.
126; 20 S. C. R. 695; see sec. 64,
post.)
LENOIR v. RITCHIE, November
4, 1879, was an appeal from the
Supreme Court of Nova Scotia, and
heard by the Supreme Court of
Canada S. C. R. 575). It de-
cided, 1st, an appeal lay; 2nd, that
the respondent, appointed Queen’s
Counsel by the Governor-General
in Council in 1872, could not be
deprived of his precedence by the
appointment as Queen's Counsel
of the appellant by the Lieutenant-
Governor of Nova Scotia in Coun-
cil under the 37 Vict. c. 20. (1874)
and 37 Vict. c. 21. of that pro-
vince, by which precedence over
the respondent was purported to be
given to the appellant. The Su-
preme Court held the Acts were
ultra wires. [See Notes, pp. 11,
35.]
Provinces of
Nova Scotia
and New
Brunswick.
Decennial
Census.
Declaration of
executive
power in the
Queen.
Application of
provisions re-
ferring to
Governor-
General.
LENOIR v.
RITCHIE.
8 B.N.A.ACT,s.11.——ADVICE or rRivY coUNcIL.
Constitution of
Privy Council
for Canada.
11, There shall be a Council to aid and advise] in
the government of Canada, to be styled the Queen’s
Privy Council for Canada; and the persons who are
to be members of that Council shall be, from time to
time, chosen and summoned by the Governor-General
and sworn in as Privy Councillors ; and members thereof
may be, from time to time, removed by the Governor-
General.
All powers
under Acts to
be exercised
by Governor-
General with
advice of Pri
Council or
alone.
12. All powers, authorities and functions which,
under any Act of the Parliament of Great Britain, or
of the Parliament of the United Kingdom of Great
Vy Britain and Ireland, or of the Legislature of Upper
Canada, Lower Canada, Canada, Nova Scotia or New
Brunswick, are at the Union vested in or exerciseable
by the respective Governors or Lieutenant-Governors
of those provinces, with the advice, or with the advice
and consent, of the respective Executive Councils
thereof, or in conjunction with those Councils or with
any number of members thereof, or by those Governors
or Lieutenant-Governors individually, shall, as far as
the same continue in existence and capable of being
exercised after the Union in relation to the Govern-
ment of Canada, be vested in and exerciseable by the‘
1 A correspondence arose be-
tween the Secretary of State for
the Colonies and the Minister of
Justice as to whether the Gover-
nor-General was to be completely
guided by his Council, or whether
he could, after taking that advice,
still follow his own opinion if it
were contrary.
Earl Kimberley, 30th June I875,
forwarded the opinion of the law
oiﬁcers of the Crown in England,
that the question whether a pro-
vincial Act should be disallowed
was a matter in which His Excel-
lency should act on his own in-
dividual opinion and in which he
could not be guided by the advice
of his reponsible ministers.
Lord Carnarvon suggested it was
one in which it was more in accor-
dance with the spirit of the Constitu-
tion that a rigid rule action should
not be established. The Minister of
Justice replied that His Excellency’s
ministers (whose recommendation
is essential to action) are respon-
sible not merely for the advice
given, but also for the action
taken; that the Canadian Parlia-
ment has the 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 prac-
tically their doing (Blue Book,
1886, p. 18). A formal report on
all provincial doubtful Acts or
sections is now made by the Minis-
ter of Justice or his Deputy.
B.N.A. AcT, s. 13.—OLD AoTs OF rRovINcEs. 9
Governor-General, with the advice, or with the advice
and consent of, or in conjunction with, the Queen’s
Privy Council for Canada or any members thereof, or
by the Governor-General individually 1 as the case
requires, subject nevertheless (except with respect to
such as exist under Acts of the Parliament of Great
Britain or of the Parliament of the United Kingdom
of Great Britain and Ireland) to be abolished or altered
by the Parliament of Canada.
13. The provisions of this Act referring to the
Governor-General in Council, shall be construed as
referring to the Governor-General acting by and with
the advice of the Queen’s Privy Council for Canada.2
14. It shall be lawful for the Queen, if Her Majesty
thinks ﬁt, to authorize the Governor-General, from
time to time, to appoint any person, or any persons
jointly or severally, to be his deputy or deputies,
within any part or parts of Canada, and in that capa-
city to exercise, during the pleasure of the Governor-
1 It was argued in the ATT.-GEN.
OF CANADA '0. AT’L—GEN. OF ON-
TARIO, 1892, 3 O. A. R. 6; 19 O. R.
47, that the whole mass of executive
authority is divided into two parts,
that portion of which is capable of
being exercised with relation to the
government of the Dominion be-
ing placed in the hands of the
Governor-General, and that por-
tion which is capable of being
exercised with relation to the
government of the provinces being
vested in the Lieutenant-Governors.
And the executive authority which
goes to the latter is of the same
nature, of the same origin, of the
same or even higher antiquity, be-
cause it was practically continued
from the old provinces. Therefore
the provincial executive authority
has not any subordinate or inferior
nature or quality. Of just the
same nature as that possessed by
the Queen’s direct representative
acting in her name for Canada is
the executive authority possessed by
the Lieutenant-Governor acting as
the Queen’s representative for the
province.
3 See secs. 56 and 90.
By sec. 56, the disallowance of
Canadian statutes is vested in
the Queen in Council. By sec. 90
this provision is extended to each
province, with the substitution of the
Governor-General for the Queen,
therefore the power of disallowance
of provincial statutes is vested in
the Governor-General in Council,
a phrase which under this section
means the Governor-General acting
by and with the advice of the
Queen’s Privy Council for Canada;
so argued the Minister of Justice
in 1875 (Prov. Leg, 1886, p. 17)
in his contest with Earl Carnarvon
that the Governor should act under
the advice of his Privy Council in
allowing or disallowing provincial
Acts. (See sec. 11.)
Application of
provisions
referring to
Governor-
General in
Council.
Power to Her
Majesty to
authorize
Governor-
General to
appoint
deputies.
ATT.-GEN. or
CANADA v.
ATT.-GEN. op
ONTARIO.
10
B.N.A. ACT, s. l5.—-GOVERNOR-GENERAL.
Command of
armed forces to
continue to be
vested in the
Queen.
MUSGRAVE v.
PULIDO.
General, such of the powers, authorities and functions
of the Governor-General as the Governor-General deems
it necessary or expedient to assign to him or them,
subject to any limitations or directions expressed or
given by the Queen; but the appointment of such
deputy or deputies shall not affect the exercise by
the Governor-General himself of any power, authority
or function.1
15, The command-in-chief of the land and naval
militia, and of all naval and military forces, of and
1 See sec. 65 to the Provinces.
Does this mean that there may
be two persons with power to exer-
cise one function P, The clause
provides the Governor- General may
appoint a deputy and may at the
same time reserve the power of him-
self exercising the functions. (Att.-
Genl. Canada r. Att.-Genl. Ontario,
1892, 3 O. A. R. 6; 19 O. R. 47.
See where a Deputy - Governor
acted, Reg. '0. the Amers, Feb. 23,
1878, 42 U. C. Q. B. at p. 408.)
In MUSGRAVE’U. PULIDo, Decem-
ber [3, 1879, 5 App. Gas. 102; 49
L. J. P. C. 20; 41 L. T. 629; 28
W. R. 373. There it was held that
a governor of a colony [Jamaica]
does not possess sovereign power.
His authority is derived from his
commission, and is limited to the
power thereby, expressly or by im—
plication, entrusted to him. And he
may sue in the courts of the colony
of which he is governor. That a
governor of a colony is in the
nature of a viceroy was said to be
laid down by Lord Mansﬁeld in
Mostyn '0. Fabrigas, 27 January
1775, 1 Cowp. 161-172; 2 W. B1.
929. But this was declared to be
without legal foundation in Hill 0.
Bigge, 4 December 1841, 3 M00.
P. C. 465. By Lord Brougham,
who also said Mostyn v. Frabrigas
was only a decision that Governor
Mostyn was liable to be sued in
England for personal wrongs done
by him while Governor of Minorca.
In Hill 22. Bigge, counsel for Gover-
nor, Sir G. F. Hill, the appellant,
said the point had been expressly de-
cided in Canada in Harvey 12. Lord
Aylmer, 1 Stuart, K. B. L. C. 542;
that there an action of debt was
brought against the governor by a
servant for wages. The governor
pleaded his governorship and the
exception was allowed. But it is
to be observed Sewell, C.J., in
giving this judgment, relied on
Mostyn v. Fabrigas. Lord Broug-
ham in Hill 11. Bigge cited Dutton
v. Howell, executor of Sir John
Wytham, in the House of Lords,
27 January 1693 (Shower 24), and
said that the acquittal of the gover-
nor there went upon the ground
that the governor and his council
had acted judiciously.
It appears from the printed papers
of Dutton v. Howell in the House
of Lords that Sir Richard Dutton,
going on leave of absence from
Barbados, appointed Sir John
Wytham Deputy-Governor; that
Sir Richard Button on his return
received complaints against Sir
John. He and his Council there-
upon ordered the committal of Sir
John Wytham. On Sir Richard
Dutton’s return to England, Sir
John Wytham raised this action in
England against Sir Richard Dut-
ton and ﬁve other defendants, his
Council. The jury gave £500 for
the imprisonment, and the Excheé
quer Chamber aﬂirmed this decision,
but the House of Lords reversed it.
B.N.A. ACT, s. 16.——PRIVILEGES OF PARLIAMENT.
11
in Canada, is hereby declared to continue and be vested
in the Queen.
16. Until the Queen otherwise directs, the seat of
government of Canada shall be Ottawa.
IV.——LEGISLATIVE PowER.1
1'7. There shall be one Parliament for Canada, con-
sisting of the Queen, an upper house styled the Senate,
and the House of Commons.
18.2 The privileges, immunities, and powers to be
held, enjoyed, and exercised by the Senate and by
the House of Commons, and by the members thereof
respectively, shall be such as are from time to time
deﬁned by Act of the Parliament of Canada, but so
that any Act of Parliament of Canada deﬁning such
privileges, immunities, and powers shall not confer any
privileges, immunities, or powers exceeding those at
the passing of such Act held, enjoyed, and exercised by
the Commons House of Parliament of the United King-
dom of Great Britain and Ireland, and by the members
thereof.
1 Compare this language with
the language of sec. 58 et seq.,
giving power of legislation to the
provinces. See Riel v. the Queen,
October 22, 1885,10 App. Cas. 675.
The prisoner was tried under pro-
visions of the Dominion Act, 43
Vict. c. 25., authorised by the Im-
perial Act, 34 & 35’ Vict. c. 28.,
providing a mode of criminal trial
for the North-West Territories
different from English criminal pro-
cedure. The trial was held good.
[See sec. 92, sub-sec. 27
See for question of precedence
between Queen’s Counsel appointed
by the Governor-General and the
provinces, Lenoir 'v. Ritchie,
November 4, 1879, 3 S. C. R 575.
See secs. 9, 64, and 65. This case
decided that Lieutenant-Governors
could appoint Queen’s Counsel, but
it was ultra "tires to give them pre-
cedence over previously appointed
Dominion Queen’s Counsel.
The Minister of Justice, 21 Feb-
ruary 1874, as regards a Mani-
toba Act which used the word
“parliamentary,” and as regards
an Ontario Act, 31 Vict. c. 30. sec.
12, in which the same word was
used, recommended that the word
should be explained as meant to
signify only the local assembly.
(Prov. Leg., 1886, p. 591.)
'~’ The original section was re-
pealed by 38 8t 39 Vict. c. 38.
(1875) s. 1 :—
“ Section 18 of the British North
American Act, 1867, is hereby re-
pealed, without prejudice to any-
thing done under that section,
and the following section shall be
substituted for the section so re-
pealed.”
After declaring there shall be
one Parliament of Canada, this
section provides for Parliament’s
Seat of govern-
ment of
Canada.
Constitution of
Parliament of
Canada.
Privileges, &c.,
of Houses.
privileges. (See Valin 'v. Langlois, .
3 S. R.1. In P. C. December 13,
12
B.N.A. ACT, s. 19.—PROVINC [AL PRIVILEGES. '
First session of
the Parliament
of Canada.
Yearly session
of the Parlia-
ment of
Canada.
Number of
Senators.
RIEL v. THE
QUEEN.
THE SPEAKER
OF THE LEGIS—
LATIVE As-
SEMBY v. GLAss.
19. The Parliament of Canada shall be called to-
gether not later than six months after the Union.
20. There shall be a session of the Parliament of
Canada once at least in every year, so that twelve
months shall not intervene between the last sitting of
the Parliament in one session and its ﬁrst sitting in
the next session.
The Senate.
21. The Senate shall, subject to the provisions of
this Act, consist of seventy-two members, who shall
be styled Senators.
1879; 5 App. Cas. 115; 49 L. J.
P. C. 37; 41 L. T. 662; and Do-
minion Act, 37 Vict. c. 10.
In RIEL v. THE QUEEN, Oct.
22, 1885, 10 App. Cas. 675, the
Dominion tried Riel for high
treason under an Act constituting
a diiferent criminal procedure than
that established in England.
The Minister of Justice (J. A.
Macdonald) reported, 3 November
1869, that the Quebec Act, 32 Vict.
c. 4., to deﬁne the privileges
and immunities of the Legislative
Council and Legislative Assembly
of Quebec, was ultra vires; no
power being given to the provin-
cial legislature to deﬁne and esta-
blish their privileges as is given by
the 18th section to the general
Parliament. The Act was disal-
lowed. (Prov. Leg. Correspond-
ence,uOttawa, 1886, p. 236.)
The legislatures of Ontario, Bri-
tish Columbia, and Manitoba, all
fell into the same error of attempt-
ing to deﬁne their privileges, &c.,
and protect persons in publishing
the sessional papers, and these local
Acts were all disallowed. (Blue
Book, 1886, 596.)
In THE SPEAKER on THE LEGIS-
LATIVE ASSEMBLY 1:. CLASS, Jan-
uary 31, 1871, L. R. 3 P. C. 560,
where the above clause is found
in the Constitution Act of Victoria,
18 & 19 Vict. c. 55. s. 35, it was held
that the statute gave the Legislative
Assembly the same powers and
privileges as the House of Commons
had at the time of the passing of
the statute of committing for ‘con-
tempt. See also Dill 7:. Murphy,
2 February 1864, 1 M00. P. C.
N. S. 487. But in the case of the
Legislature of N ewfoundland,Baron
Parke in Kielley 22. Carson, 11th
January 1843, 4 M00. P. C. p. 92,
said that although local legisla-
tures have every power reasonably
necessary for the proper exercise of
their functions and duties, they had
not the same exclusive privileges
which the ancient law of England
has annexed to the House of Parlia-
ment. There were present ten
Privy Councillors, including Lord
Brougham, L.C., and Lords Den-
man, Abinger, Cottenham, and
Campbell. Baron Parke there
doubted the soundness of his own
decision in Beaumont r. Barrett,
17 June 1836, 1 M00. P. C. 59;
and Lord Ellenborough’s in Bur-
dett v. Abbot, 14 East 137. See
also Fenton 11. Hampton, 11 M00.
P. C. 347, and Doyle r. Falconer,
L. R. 1 P. C. 328, on legislative
powers; and Herbert 'v. Purchas,
L. B. 3 P. C. 664, on ﬁnality of
the Privy Council judgments.
B.N.A. ACT, s. 22.-—SENATORS. 1'3
22. In relation to the constitution of the Senate
Canada shall be deemed to consist of three divisions :
1. Ontario ,-
2. Quebec ;
3. The maritime provinces, Nova Scotia and New
Brunswick ;
which three divisions shall (subject, to the provi-
sions of this Act) be equally represented in the
Senate as follows: Ontario by twenty-four Senators;
Quebec by twenty-four Senators; and the maritime
provinces by twenty-four Senators, twelve thereof
representing Nova Scotia, and twelve thereof repre-
senting New Brunswick.1
In the case of Quebec each of the twenty-four
Senators representing that province shall be appointed
for one of the twenty-four electoral divisions of
Lower Canada speciﬁed in Schedule A. to Chapter
one of the Consolidated Statutes of Canada.
23, The qualiﬁcations of a Senator shall be as
follows:
(1.) He shall be of the full age of thirty years :
(2.) He shall be either a natural-born subject
of the Queen, or a subject of the ; Queen
naturalized by an Act of the Parliament of
Great Britain, or of the Parliament of the
United Kingdom of Great Britain and Ireland,
or of the Legislature of one of the provinces
of Upper Canada, Lower Canada, Canada,
Nova Scotia, or New Brunswick, before the
Union, or of the Parliament of Canada after
the Union :
He shall be legally or equitably seised as of
freehold for his own use and beneﬁt of
1 Additional members have been Columbia, Manitoba, Prince Ed-
summoned to the Senate repre- ward Island, and the ‘North-West
senting the provinces of British Territories. Q
Representation
of provinces 1n
Senate.
Qualiﬁcations
of Senator.
14 B.N.A. ACT, s. 24.--SENATORS’ QUALIFICATION.
Summons of
Senator.
Summons of
ﬁrst body of
Senators.
Addition of
Senators in
certain cases.
lands or tenements held in free and com-
mon socage, or seised or possessed for his
own use and beneﬁt of lands or tenements
held in Franc- alleu or in Roture, within
the province for which he is appointed,
of the value of four thousand dollars, over
and above all rents, dues, debts, charges,
mortgages, and incumbrances due or pay-
able out of or charged on or affecting the
same:
(4.) His real and personal property shall be to-
gether worth four thousand dollars over and
above his debts and liabilities:
(5.) He shall be resident in the province for which
he is appointed:
(6.) I11 the case of Quebec he shall have his real
property qualiﬁcation in the electoral division
for which he is appointed, or shall be resident
in that division.
24. The Governor-General shall from time to time,
in the Queen’s name, by instrument under the great
seal of Canada, summon qualiﬁed persons to the
Senate; and, subject to the provisions of this Act, every
person so summoned shall become and be a member of
the Senate and a Senator.
25. Such persons shall be ﬁrst summoned to the
Senate as the Queen by warrant under Her Majesty’s
royal sign manual thinks ﬁt to approve, and their
names shall be inserted in the Queen’s proclamation of
Union.
26. If at any time on the recommendation of the
Governor-General the Queen thinks ﬁt to direct that
three or six members be added to the Senate, the
Governor-General may by summons to three or six
qualiﬁed’ persons (as the case may be), representing
B.N.A. ACT, s. 27.—-LOSS OF SENATORSHIP. 15
equally the three divisions of Canada, add to the
Senate accordingly. '
27, In case of such addition being at any time made,
the Governor-General shall not summon any person to
the Senate, except on a further like direction by the
Queen, on the like recommendation, until each of the
three divisions of Canada is represented by twenty-
four Senators and no more.
28. The number of Senators shall not at any time
exceed seventy-eight.
29. A Senator shall, subject to the provisions of this
Act, hold his place in the Senate for life.
30. A Senator may, by writing under his hand,
addressed to the Governor-General, resign his place
in the Senate, and thereupon the same shall be vacant.
, 31. The place of a Senator shall become vacant in
any of the following cases :—
(1.) If, for two consecutive sessions of the Parliament,
he fails to give his attendance in the Senate ;
(2.) If he takes an oath or makes a declaration or
acknowledgment of allegiance, obedience, or
adherence to a foreign power, or does an act
whereby he becomes a subject or citizen, or
entitled to the rights or privileges of a subject
or citizen, of a foreign power ;
If he is adjudged bankrupt or insolvent, or
applies for the beneﬁt of any law relating to
insolvent debtors, or becomes a public de-
faulter;
(4.) If he is attainted of treason or convicted of felony
or of any infamous crime;
(5.) If he ceases to be qualiﬁed in respect of property
or of residence : provided, that a Senator shall
Reduction of
Senate to
normal number.
Maximum
number of
Senators.
Tenure of place
In Senate.
Resignation of
place in Senate.
Disqualiﬁca-
tion of
Senators.
16 B.N.A. AoT, s. 32.--THE ooMMoNs.
Summons on
vacancy in
Senate.
Questions as to
qualiﬁcations
and vacancies
in Senate.
Appointment
of Speaker of
Senate.
Quorum of
Senate.
Voting in
Senate.
Constitution
of House of
Commons in
Canada.
not be deemed to have ceased to be qualiﬁed in
respect of residence by reason only of his resid-
ing at the seat of the Government of Canada,
while holding an oﬁice under that Government
requiring his presence there.
32. When a vacancy happens in the Senate by resig-
nation, death, or otherwise, the Governor-General shall
by summons to a ﬁt and qualiﬁed person, ﬁll the
vacancy.
33, If any question arises respecting the qualiﬁcation
of a Senator or a vacancy in the Senate, the same shall
be heard and determined by the Senate.
34, The Governor-General may, from time to time,
by instrument under the great seal of Canada, appoint
a Senator to be Speaker of the Senate, and may remove
him and appoint another in his stead.
35. Until the Parliament of Canada otherwise pro-
vides, the presence of at least ﬁfteen Senators, including
the Speaker, shall be necessary to constitute a meeting
of the Senate for the exercise of its powers.
36, Questions arising in the Senate shall be decided
by a majority of voices, and the Speaker shall in all
cases have a vote, and when the voices are equal the
decision shall be deemed to be in the negative.
The House of Commons.
3'7, The House of Commons shall, subject to the pro-
visions of this Act, consist of one hundred and eighty-
one members,1 of whom eighty-two shall be elected for
Ontario, sixty-ﬁve for Quebec, nineteen for Nova Scotia
and ﬁfteen for New Brunswick.
1 Increased by the addition, under sec. 51, of the extra provinces
which have joined the Union.
B.N.A. ACT, S. ss.-_P ARLIAMENTARY ELEoToRs. 17
38, The Governor-General shall from time to time,
in the Queen’s name, by instrument under the great
seal of Canada, summon and call together the House of
Commons.
39, A Senator shall not be capable of being elected
or of sitting or voting as a member of the House of
Commons.
40. Until the Parliament of Canada otherwise pro-
vides, Ontario, Quebec, Nova Scotia, and New Brunswick
shall, for the purposes of the election of members to
serve in the House of Commons, be divided into elec-
toral districts as follows :—
1.—Ontario.
Ontario shall be divided into the counties, ridings of
counties, cities, parts of cities, and towns enumerated
in the First Schedule to this Act, each whereof shall be
an electoral district, each such district as numbered in
that Schedule being entitled to return one member.’
2.— Quebec.
Quebec shall be divided into sixty-ﬁve electoral
districts, composed of the sixty-ﬁve electoral divisions
into which Lower Canada is at the passing of this Act
divided under Chapter two of the Consolidated Statutes
of Canada, Chapter seventy-ﬁve of the Consolidated
Statutes for Lower Canada, and the Act of the province
of Canada of the twenty-third year of the Queen,
Chapter one, or any other Act amending the same in
force at the Union, so that each such electoral division
shall be for the purposes of this Act an electoral
district entitled to return one member.
3.—Nova Scotia.
Each of the eighteen counties of Nova Scotia shall
be an electoral district. The county of Halifax shall
be entitled to return two members, and each of the
other counties one member.
S 2340. B
Summoning of
ouse of
Commons.
Senators not to
sit in the House
of Commons.
Electoral dis-
tricts of the
Four Provinces.
18 B.N.A. ACT, s. 4l.-ELECTI.ON PETITIONS.
Continuance of
existing elec-
tion laws until
Parliament of
Canada other-
wise provides.
VALIN v. LANG-
LOIS, 187 9.
4.—New Brunswick.
Each of the fourteen counties into which New
Brunswick is divided, including the city and county of
St. John, shall be an electoral district. The city of
St. John shall also be a separate electoral district.
Each of those ﬁfteen electoral districts shall be en-
titled to return one member.
41. Until the Parliament of Canada otherwise pro-
vides, all laws in force in the several provinces at the
Union relative to the following matters or any of them,
namely, ——- the qualiﬁcations and disqualiﬁcations of
persons to be elected or to sit or vote as members of
the House of Assembly or Legislative Assemby in the
several provinces, the voters at elections of such mem-
bers, the oaths to be taken by voters, the returning
ofﬁcers, their powers and duties, the proceedings at
elections, the periods during which elections may be
continued, the trial of controverted elections, and pro-
ceedings incident thereto, the vacating of seats of mem-
bers, and the execution of new writs in case of seats
vacated otherwise than by dissolution,—-shall respectively
apply to elections of members to serve in the House of
Commons for the same several provinces.1
Provided that, until the Parliament of Canada other-
wise provides, at any election for a member of the
House of Commons for the district of Atgoma, in
addition to persons qualiﬁed by the law of the province
of Canada to vote, every male British subject, aged
twenty-one years or upwards, being a householder,
shall have a vote.
1 VALIN r. LANGLOIS, 28 Oct.187 9,
3 S. C. R. 1. In P. C. 13 Dec.
1879 [present, Lord Selborne, Sir
J. W. Colvile, Sir Barnes Peacock,
Sir M. E. Smith,and Sir R. Collier].
5App. Cas. 115; 49 L. J. P. C. 37;
41 L. T. 662. This was an applica-
tion for special leave to appeal, and
an attack upon the Dominion Act,
37 Vict. c. 10., Trial of Election
Petitions, which Act, inter alia,
conferred power upon the Quebec
Superior Court to hear an election
petition.
Lord Selborne said: “Their Lord-
ships have carefully considered the
able argument they have heardfrom
Mr. Benjamin, and they feel glad
so full an argument has been offered
B.N.A. ACT, s. 41.—LEAVE TO APPEAL. 19
to them, because there can be no
doubt that the matter is one of great
said that their Lordships have no VALIN 11; LANG-
doubt about the importance of this L015’ 18‘9-
importance. The petition is to ob-
tain leave to appeal from two con-
current judgments of the court of
ﬁrst instance and of the Court of
Appeal aﬁirmin g the competency and
validity of an Act of the Dominion
Legislature of Canada. Nothing
can be of more importance, certainly,
than a question of that nature, and
the subject matter also, being the
mode of determining election pe-
titions in cases of controverted elec-
tions to seats in the Parliament of
Canada, is beyond all doubt of the
greatest general importance. It
therefore would have been very un-
satisfactory to their Lordships to
dispose of such an application with-
out, at least, having had the grounds
of it very fully presented to them.
That has been done, and I think I
may venture to say for their Lord-
ships generally, that they very
much doubt whether if there had
been an appeal, and counsel present
on both sides, the grounds on which
an appeal would have been suppor-
ted or might have been supported
could have been better presented
to their Lordships than they have
been upon the present occasion.
“ In that state of the case their
Lordships must remember on what
principles an application of this sort
should be granted or refused. It
has been rendered necessary by the
legislation [38 Vict. c. 11.] which
has taken place in the colony to
make a special application to the
Crown in such a case for leave to
appeal; and their Lordships have
decided on a former occasion [Min-
ister of St. Andrews 1*. Johnston,
Dec. 10, 187 7, where all the cases
are noted. See Wheeler’s P. C.
Law, 957; 3 App. Cas. 159; 37
L. T. 556; 26 W. R. 359] that a
special application of that kind
should not be lightly or very easily
granted ; and that it is necessary to
show both that the matter is one of
importance, and also that there is
really a substantial question to be
determined. It has been already
question, but the consideration of
its importance and the nature of the
question tell both ways. On the
one hand, those considerations
would undoubtedly make it right to
permit an appeal, if it were shown
to their Lordships, primd facz'e,
at all events, that there was a serious
and a substantial question, requiring
to be determined. On the other
hand, the same considerations make
it unﬁt and inexpedient to throw
doubt upon a great question of con-
stitutional law in Canada, and
upon a decision in the Court of Ap-
peal there, unless their Lordships
are satisﬁed that there is prz'md
facz'e a serious and a substantial
question requiring to be determined.
Their Lordships are not satisﬁed in
this case that there is any such
question,inasmuch as they entertain
no doubt that the decisions of the
lower courts were correct.
“It is not to be presumed that
the Legislature of the Dominion has
exceeded it powers, unless upon
grounds of a serious nature. In
the present case, their Lordships
ﬁnd that the subject matter of this
controversy, that is, the determina-
tion of the way in which questions
of this nature are to be decided as
to the validity of the returns of
members to the Canadian Parlia-
ment, is, beyond all doubt, placed
within the authority and the legis-
lative power of the Dominion Par-
liament by the 41st section of the
Act of 1867 ; upon that point no
controversy is raised. The contro-
versy is solely whether the power
which that Parliament possesses of
making provision for the mode of
determining such questions has
been competently or incompetently
exercised. The only ground on
which it is alleged to have been in-
competently exercised is that by the
91st and 92nd sections of the Act of
1867, which distribute legislative
powers between the provincial and
the Dominion legislatures, the Do-
minion Parlian'ient is excluded
B2
20
B.N.A. AcT, s. 4i._coURTs AND NEw DUTIES.
VALIN v. LANG-
LOIS, 187 9.
from the power of legislatin g on any
matter coming within those classes
of subjects which are assigned ex-
clusively to the legislatures of the
provinces. [Reads sub-sec. 14,
sec. 92.] The argument which
has been oﬁered to their Lordships
to induce them to come to the con-
clusion that there is here a serious
question to be determined, is that
the Act, 1874, 37 Vict. c. 10., the
validity of which is challenged,
contravenes this particular provi-
sion of the sec. 92, which exclu-
sively assigns to the provincial
legislatures the power of legislating
for the administration of justice in
the provinces, including the consti-
tution, maintenance, and organiza-
tion of provincial courts of civil
and criminal jurisdiction, and in-
cluding procedure in civil (not in
criminal) matters in those courts.
Even if the 41st see. were not in the
Act, it would not be quite plain
that the transfer of the jurisdiction
to determine upon the right to seats
in the Canadian Legislature—a
thing which had been always done
not by courts of justice, but other-
wise — would come within the
natural import of those general
words, ‘ The administration of jus-
tice in the provincial courts and
procedure in civil matters in those
courts.’ But one thing, at least, is
clear, that those words do not point
expressly, or by any necessary im-
plication, to the particular subject
of election petitions; and when we
ﬁnd in the same Act another
clause which deals expressly with
those petitions, there is not the
smallest difficulty in taking the two
clauses together and placing upon
them both a consistent construc-
tion. That other clause, the
41st, expressly says that the old
mode of determining this class
of questions was to continue until
the Parliament of Canada should
otherwise provide. It was, there-
fore, the Parliament of Canada
which was otherwise to provide.
It did otherwise provide by the Act
of 1873, which Act it afterwards
altered, and then passed the Act
now in question. So far, it is very
difficult to suggest any ground upon
which the competency of the Par-
liament of Canada so to legislate
could be called in question. But
the ground which is suggested is
this, that it has seemed ﬁt to the
Parliament of Canada to confer the
jurisdiction necessary for the trial
of election petitions upon courts of
ordinary jurisdiction in the pro-
vinces, and it is said that although
the Parliament of Canada might have
provided in any other manner for
those trials, and might have created
any new courts for this purpose, it
could not commit the exercise of
such a new jurisdiction to any
existing provincial court.” Their
Lordships “are at a loss to follow
that argument, even supposing
that this were not in truth and
in substance the creation of a new
court. If the subject-matter is with-
in the urisdiction of the Dominion
Parliament it is not within the
jurisdiction of the Provincial Par-
liament, and that which is excluded
by the 91st see. from the jurisdiction
of the Dominion Parliament is not
anything else than matters coming
within the classes of subjects assign-
ed exclusively to the legislatures of
the provinces. The only material
class of subjects relates to the ad-
ministration of justice in the pro-
vinces, which, read with the 41st
sec., cannot be reasonably taken to
have anything to do with election
petitions. There is, therefore,
nothing here to raise a doubt about
the power of the Dominion Parlia-
ment to impose new duties upon
the existing provincial courts, or
to give them new powers as to mat-
ters which do not come within the
classes of subjects assigned exclu-
sively to the legislaturesof the pro-
vinces. But in addition to that it ap-
pears that by the Act of 187 3, which,
even by those judges who are said
to have disputed the competency of
the Act of 187 4, is admitted to have
been competent to the Dominion
Parliament, what appears to their
B.N.A. Aer, s. 4l.—NEW JURIsDIcTIoN.
21
Lordships to be exactly the same
thing in substance, and not so very
different even in form, was done.
It was intended that when a court
of appeal should be constituted for
the Dominion, a judge of that court
of appeal should be the judge in
the ﬁrst instance of election peti-
tions, and three judges of the same
court should have power to sit in
appeal from any judgment of a
single judge. But it was necessary
also to provide for the interval
between the passsing of the Act and
the constitution of such a court of
appeal; and that Act of 1873 pro-
vided that in the meantime the
judges of the existing provincial
courts should exercise, under regula-
tions contained in it, the same juris-
diction. It did not, indeed, say the
courts; it said the judges of the
courts, and that is really, in their
Lordships’ view, the sole difference
for this purpose between the Acts
of 1873 and 1874. The Act of
1874 in substance does the same
thing, except that in the deﬁnition
clause it uses this language : ‘ The
expression “ the court,” as respects
elections in the several provinces
hereinafter mentioned respectively,
shall mean the courts hereinafter
mentioned or any judges there-
of,’ and then it mentions by
their known names the existing
courts of the different provinces.
When their Lordships go on to
look at the provisions which fol-
low in the Act, it is clear not only
that a new jurisdiction is conferred
upon these courts, but that every-
thing necessary for the exercise of
that new jurisdiction is provided
for, even the power to take evidence;
it is said that a single judge in ro-
tation, and not the entire court, is
to exercise that jurisdiction, and in
the 48th see., ‘ That on the trial of
an election petition, and in other
proceedings under this Act, the
judge shall, subject to the pro-
visions of this Act, have the same
powers of jurisdiction and authority
as‘ a judge ‘of one of the superior
courts of law or equity for the pro-
vince in which such election is held,
sitting in term, or proceeding at the
trial of an ordinary civil suit, and
the court held by him in such trial
shall be a court of record.’
“ Words could not be more plain
than those to create this as a new
court of record, and not the old
court, with some superadded uris-
diction to be exercised, as if it had
been part of its old urisdiction.
And all that is said as to the em-
ployment of the same ofﬁcers, or of
any other machinery of the court for
certain purposes—deﬁned by refer-
ence to the existing procedure of the
courts—shows that the Dominion
Legislature was throughout dealing
with this as a new jurisdiction
created by itself, although in many
cases adopting, as it was convenient
that it should adopt, existing ma-
chinery. Therefore, their Lordships
see nothing but a nominal, a verbal,
and an unsubstantial distinction
between this latter Act, as to its
principles, and those provisions of
the former Act, which all the judges
of all the courts in Canada, appa-
rently without difficulty, held to be
lawful and constitutional.”
His Lordship then referred to
the allegation that some of the
judges had declined to exercise this
jurisdiction, and said nothing had
been stated to lead their Lordships
to apprehend that there is any real
probability that any judge of the
inferior courts will hereafter dispute
their obligation to follow the ruling
of the Supreme Court, unless and
until it shall be reversed by Her
Majesty in Council. “ Under these
circumstances, their Lordships are
not persuaded that there is any
reason to apprehend difficulty or
disturbance from leaving untouched
the decision of the Court of Appeal.
Their Lordships are not convinced
that there is any reason to expect
that any of the judges of the court
below will act otherwise than in
due subordination to the appellate
jurisdiction, or refuse to follow the
law as laid down by it.” If, in-
deed, there had been “ produced in
VALIN v. LANG-
LOIS, 1879.
22 B.N.A. ACT, s. 42.—VAGANCY IN REPRESENTATION.
VALIN v. LANG-
LOIS, 1879.
\Vrits for ﬁrst
election.
As to casual
vacancies.
the minds of any of their Lordships
doubts of the soundness of the deci-
sion of the Court of Appeal, their
Lordships would have felt it their
duty to advise Her Majesty to
grant the leave which is now
asked for; but, on the contrary,
the result of the whole argument
has been to leave their Lordships
under the impression that there is
here no substantial question at all
to be determined, and that it would
be much more likely to unsettle
the minds of Her esty’s subjects
in the Dominion, and to disturb in
an inconvenient manner the legis-
lative and other proceedings there,
if they were to grant the prayer of
this petition, and so throw a doubt
on the validity of the decision of
the Court of Appeal below, than if
they were to advise Her Majesty to
refuse it. Under these circum-
stances, their Lordships feel it their
duty humbly to advise Her Majesty
that the leave to appeal should not
be granted, and that the petition
should be dismissed.”
See Canadian cases: Niagara
Election case, 29 U.C.C. P. 261;
Belanger r. Caron, 5 Q. L. R. 19;
Guay o. Blanchet, 5 Q. L. R.
43; Bruneau o. Massue, 23 L.
C. Jur. 60; White 'v. Macken-
zie, 20 L. C. Jur. 22; Ryan '0.
Devlin, 20 L. C. Jur. 77; Owens
'0. Cushing, 20 L. C. Jur. 86; and
Theberge o. Landry [Quebec
Election Petitions], Nov. 7, 187 6,
2 App. Cas. 102; 46 L. J. P. C. 1;
35 L. T. 640; 25 W. R. 216; Eng-
lish Election Petitions, Peel’s Act,
1839, and Lord Selborne in Queen
Iv. Burah, June 5, 1878, 3 App.
Cas. at p. 904. Colonial legisla-
tures have powers expressly limited
by the Imperial Act which created
them, and when acting within those
limits have “plenary powers of
legislation as large and of the same
nature as those of the Imperial Par-
liament itself.”
42, For the ﬁrst election of members to serve in
the House of Commons the Governor-General shall
cause writs to be issued by such person, in such form,
and addressed to such returning officers as he thinks ﬁt.
The person issuing writs under this section shall
have the like powers as are possessed at the Union by
the officers charged with the issuing of writs for the
election of members to serve in the respective House
of Assembly or Legislative Assembly of the province
of Canada, Nova Scotia, or New Brunswick‘ ; and the
returning ofﬁcers to whom writs are directed under
this section shall have the like powers as are possessed at
the Union by the officers charged with the returning of
writs for the election of members to serve in the same
respective House of Assembly or Legislative Assembly.
43. In case a vacancy in the representation in the
House of Commons of any electoral district hap-
pens before the meeting of the Parliament, or after
the meeting of the Parliament before provision is
made by the Parliament in this behalf, the provisions
B.N.A. ACT, z14.—THE SPEAKER. 23
of the last foregoing section of this Act shall extend
and apply to the issuing and returning of a writ in
respect of such vacant district.
44, The House of Commons, 011 its ﬁrst assembling
after a general election, shall proceed with all practicable
speed to elect one of its members to be Speaker.
45. In case of a vacancy happening in the ofﬁce of
Speaker by death, resignation or otherwise, the House
of Commons shall, with all practicable speed, proceed
to elect another of its members to be Speaker.
46. The Speaker shall preside at all meetings of the
House of Commons.
4'7. Until the Parliament of Canada otherwise pro-
vides, in case of the absence for any reason of the
Speaker from the chair of the House of Commons, for
a period of forty-eight consecutive hours, the House
may elect another of its members to act as Speaker,
and the member so elected shall, during the con-
tinuance of such absence of the Speaker, have and
execute all the powers, privileges and duties of
Speaker.
48, The presence of at least twenty members of the
House of Commons shall be necessary to constitute a
meeting of the House for the exercise of its powers;
and for that purpose the Speaker shall be reckoned as a
member.
49. Questions arising in the House of Commons shall
be decided by a majority of voices other than that of the
Speaker, and when the voices are equal, but not other-
wise, the Speaker shall have a vote.
50. Every House of Commons shall continue for ﬁve
years from the day of the return of the writs for choos-
ing the House (subject to be sooner dissolved by the
Governor-General), and no longer.
51. On the completion of the census in the year one
thousand eight hundred and seventy-one, and of each
As to election
of Speaker of
House of
Commons.
As to ﬁlling up
vacancy in
ofﬁce of
Speaker.
Speaker to
preside.
Provision in
case of absence
of Speaker.
Quorum of
House of
Commons.
Voting in
House of
Commons.
Duration of
House of
Commons.
Decennial re-
adjustment of
representation.
2'4 B.N.A. mm s. 52.—.INGREASE or MEMBERs.
Increase of
number of
House of
Commons.
subsequent decennial census, the representation of the
four provinces shall be readjusted by such authority, in
such manner and from such time as the Parliament
of Canada, from time to time, provides, subject and
according to the following rules :—
(1.) Quebec shall have the ﬁxed number of sixty-ﬁve
members ;
(2.) There shall be assigned to each of the other
provinces, such a number of members as will
bear the same proportion to the number of its
population (ascertained at such census) as the
number sixty-ﬁve bears to the number of the
population of Quebec (so ascertained) ;
In the computation of the number of members
for a province a fractional part not exceeding
one-half of the whole number requisite for
entitling the province to a member shall be
disregarded; but a fractional part exceeding
one-half of that number shall be equivalent to
the whole number ;
(4.) On any such re-adjustment the number of mem-
bers for a province shall not be reduced, unless
the proportion which the number of the popu-
lation of the province bore to the number of
the aggregate population of Canada at the
then last preceding re-adjustment of the num-
ber of members for the province is ascertained
at the then latest census to be diminished by
one-twentieth part or upwards ;
(5.) Such re-adjustment shall not take elfect until
the termination of the then existing Parlia-
ment.
52. The number of members of the House of Com-
mons may be, from time to time, increased by the
Parliament of Canada, provided the proportionate
representation of the Provinces prescribed by this Act
- is not thereby disturbed.
B.N.A. ACT, s. 53.—-MONEY BILLS.
MONEY VorEs—RoYAI. AssENT.
53, Bills for appropriating any part of the public
revenue, or for imposing any tax or impost, shall
originate in the House of Commons.1
54, It shall not be lawful for the House of Commons
to adopt or pass any vote, resolution, address or bill for
the appropriation of any part of the public revenue, or
of any tax or impost, to any purpose that has not been
ﬁrst recommended to that
1 For the House of Commons of
the United Kingdom, it is claimed
Money Bills must originate there-
in, and further, it is said, that
House will not permit the least
alteration or amendment to be
made by the Lords to this mode
of taxing the people by a Money
Bill. 1 Black. Comm. [4th ed],
137 [quoting 3 Hallam Const.
Hist. c. 13], says, under the ap-
pellation of Money Bills “ are in-
cluded all Bills by which money is
directed to be raised upon the sub-
ject for any purpose or shape what-
ever; either for the exigencies of
government, and collected from
the kingdom in general.” “Yet
Sir Matthew Hale mentions one
case, founded on the practice of
Parliament in the reign of Henry
VI. [Year Book, 33 Henry VI. 17 ;
but see Sir Heneage Finch’s an-
swer, Com. J our., 22nd April
1671; 4 Hansard, 480], wherein
he thinks the Lords may alter a
Money Bill; and that is, if the Com-
mons grant a tax for four years,
and the Lords alter it to less time,
as for two years; here, he says, the
Bill need not be sent back to the
Commons for their concurrence,
but may receive the Royal Assent
Without further ceremony ; for this
alteration of the Lords is consistent
with the grant of the Commons.”
Now the same learned author says,
“ In any case where a Money Bill
is remanded to the Commons, all
House by message of the
amendments in the mode of taxation
are sure to be rejected,” and the
Bill would be introduced again
in the House of Commons. But
whether the Commons have this
extreme prerogative or not, the
making of amendments is a strong
lever of protest, and in a serious
crisis, from fear or threats of
abolition, ought not to be aban-
doned. It will be noticed sec. 54
gives a controlling voice to the
Governor-General. In the United
States the Senate may propose
or concur in amendments as on
other bills [see sec. 7. art. 1, United
States Const.; Story’s Comm.
Const. U.S., 4th ed., secs. 874-876].
Story says, sec. 878, "Indeed, so
little importance has the exclusive
possession of such a power been
thought in the State governments,
that some of the State constitutions
made no difference as to the power
of each branch of the legislature
to originate Money Bills. Most of
them contain a provision similar to
that in the Constitution of the
United States, and in those States
where exclusive power formerly
existed, as, for instance, in Virginia
and South Carolina, it was a con-
stant source of diﬂiculties and con—
tentions [2 Elliot’s Debates, 283—
284]. In the revised Constitution
of South Carolina (in 1790), the
provision was altered so asto con—
form to the clause in the Constitu-
tion of the United States.”
Appropriation
and tax bills.
Recommenda-
tion of money
votes.
26 B.N.A. ACT, s. 55.—-DISALLOWAN CE OF BILLS.
Royal Assent
to Bills, &c.
Disallowance
by Order in
Council of Act
assented to by
Governor-
General.
Signiﬁcation of
Queen’s plea.-
sure on Bill
reserved.
Governor-General in the session in which such vote,
resolution, address or bill is proposed.1
55. Where a Bill passed by the Houses of the Parlia-
ment is presented to the Governor-General for the
Queen’s assent, he shall declare, according to his
discretion,2 but subject to the provisions of this Act
and to Her Majesty’s instructions, either that he assents
thereto in the Queen’s name, or that he withholds the
Queen’s assent, or that he reserves the Bill for the
signiﬁcation of the Queen’s pleasure.
56. Where the Governor-General assents to a Bill in
the Queen’s name, he shall by the ﬁrst convenient
opportunity send an authentic copy of the Act to one
of Her Majesty’s Principal Secretaries of State, and if
the Queen in Council within two years after receipt
thereof by the Secretary of State thinks ﬁt to disallow
the Act, such disallowance (with a certiﬁcate of the
Secretary of State of the day on which the Act was
received by him) being signiﬁed by the Governor-
General, by speech or message to each of the Houses
of the Parliament or by proclamation, shall annul the
Act from and after the day of such signiﬁcation.3
57. A Bill reserved for the signiﬁcation of the
Queen’s pleasure shall not have any force unless and
until, within two years from the day on which it was
presented to the Governor-General for the Queen’s
assent, the Governor-General signiﬁes, by speech or
message to each of the Houses of the Parliament or by
proclamation, that it has received the assent of the
Queen in Council.‘
1 It appears from this that the
Dominion House of Commons can-
not pass any Bill for appropriation
of any part of the public revenue
to any purpose that has not been
ﬁrst recommended to that House by
the Governor-General. See sec. 53.
2 See sec. '11, Note.
3 See for assent by Governor-
General to precedence of Queen’s
Counsel and provincial Queen’s
Counsel, Lenoir o. Ritchie, Nov.
4th, 1879, 3 S. C. R. 575.
4 See as to consent of Governor-
General to allow or disallow Acts
of the provincial legislatures, secs.
11,12, 55, 90, and 93, and notes
thereto. , __ p
B.N.A. ACT, s. 58.——PROVINCIAL LEGISLATURES.
27
An entry of every such speech, message, or pro-
clamation shall be made in the journal of each House,
and a duplicate thereof duly attested shall be delivered
to the proper ofﬁcer to be kept among the records of
Canada.
V.-——-PROVINGIAL CoNsTITUTIoNs.
Executive Power.
58, For each province there shall be an oiﬁcer,
styled the Lieutenant-Governor, appointed by the
Governor-General in Council by instrument under the
great seal of Canada.1
1 The fact that whereas the Gover-
nor-General is directly appointed by
the Queen, the Lieutenant-Grover-
nor of a province is appointed, not
by Her Majesty, but by the Gover-
nor-General, who has also the power
of dismissal, cannot be successfully
used as an inference that the Im-
perial Legislature meant to vest in
the provinces of Canada the right
of exercising supreme legislative
powers, in which the British sove-
reign was to have no share. But
the act of the Governor-General
and his Council in making the ap-
pointment is, within the meaning
of the statute, the act of the Crown,
and a Lieutenant-Governor, when
appointed, is as much the repre-
sentative of Her Majesty, for all
purposes of provincial government,
as the Governor-General himself is
for all purposes of Dominion go-
vernment. Maritime Bank of
Canada a. New Brunswick Re-
ceiver—General, July 2nd, 1892,
[1892] A. C. at p. 443 ; and below,
17 & 20 S. C. R. 657, 695. See
sec. 64.
See Notes to sees. 90 and 93.
In a question of precedence of
Queen’s Counsel, held the provinces
could not give precedence over
Queen’s Counsel already appointed
by the Governor-General. Lenoir
v. Ritchie, Nov. 4th, 1879, 3 S. C.
R. 575.
In Att.-Geu.of Canada v.Att -Gen.
of Ontario [1892], 3 O. A. R. 6; 19
O R. 47, it was argued thata simi-
lar phrase was used, giving power of
legislation to the provincial consti-
tutions, as when legislative power
was given to the Dominion. [See
sec. 1 7 That the same phrase being
used indicated the existence in the
case of the provinces of the same
quality of legislative power, to be
exercised in the same way, and with
the same degree of latitude, as to
methods, means, and facilities for
carrying out such legislative powers
as in the case of the Dominion.
This ﬁfth division is headed Pro-
vincial “ Constitutions.” So“ Con-
stitutions,” the same phrase which
is used in the preamble with refer-
ence to the Constitution of the
United Kingdom, and to the Con-
stitution of the legislative authority
of the Dominion of Canada. It is
not, therefore, the incorporation of
a company, or the charter of a
municipality, or any lesser or other
thing, so far as this title shows, than
the Constitution of a STATE. There
is the “ Constitution of the United
Kingdom”; there is the “Con-
stitution of Canada,” and there is
the “ ProvincialConstitutions.” The
name embraces the ideas of sove-
reignty and of political organization.
The Lieutenant-General is to be
appointed by the “ Governor-Gen-
eral in Council.” It is, therefore,
the Governor-General of Canada, as
Appointment
of Lieutenant-
Governors of
provinces.
28 B.N.A.ACT,s.59.—REMOVAL or LIEUT.-GOVERNOR.
Tenure of office
of Lieutenant-
Governor.
LETELLIER
CASE.
59. A Lieutenant-Governor shall hold ofﬁce during
the pleasure of the Governor-General,1 but any Lieu-
tenant-Governor appointed after the commencement of
the ﬁrst session of the Parliament of Canada shall not
be removeable within ﬁve years from his appointment,
except for cause assigned, which shall be communicated
to him in writing within one month after the order
for his removal is made, and shall be communicated by
message to the Senate and to the House of Commons
within one week thereafter if the Parliament is then
sitting, and if not then within one week after the com-
mencement of the next session of the Parliament.
the Queen’s representative, acting
for her, and in her name, on
the advice of the Queen’s Privy
Council of Canada, and under the
Great Seal of Canada, who, by the
statute, is to appoint to the oﬁice,
who thus becomes the lieutenant of
the representative of the Queen, and
so may be said to be an appropriate
holder of such prerogative power
as, in order to make the constitution
eﬂicient, should be exercised by the
executive head of the province.
And sec. 61 ordains him to take
and subscribe an oath of allegiance
similar to that taken by the
Governor-General. And by sec. 62,
the Lieutenant-Governor is carry-
ing on the government of a province.
1 See the case of Letellier.
Leggo’s Lord Duiferin, p. 653,
states: “The Hon. Luc Letellier
de St. Just, a member of the
Senate, and a strong supporter of
Mackenzie’s Government, was ap-
pointed Lieutenant - Governor of
Quebec in 1876. The Legislative
Assembly, Legislative Council, and
the Ministry of that province were
then. in antagonism to the Do-
minion Government. Mr. Letellier
thus found himself without any
political sympathy either with the
ministers on the, representatives of-
the people. 1n 1878 he dismissed
his advisers, though the majority
of the Assembly was 20 in a house
of 65, and in the upper house two
to one. 11 April, 1878, Sir John
Macdonald brought the matter be-
fore the Dominion Parliament.
He said that the Lieutenant-Gover-
nors of the different provinces stood
precisely in the same position with
respect to the Governor-General
and his Cabinet as the Governor—
General stands in respect to the
Queen and her Cabinet, and if
that be admitted then it must be
held the Parliament of the Do-
minion of Canada has a supervision
of the acts of the Lieutenant-
Governors. Every Governor of
a colony in the British Empire was
liable to have his conduct discussed
in the British Parliament. Gover-
nor Eyre, 184 Hansard 1064,
1763, see his trial, 1868, and
charge of Blackburn, J. ; Governor
Darling’s case, 191 Hansard 1963 ;
and the case of Mr. Pope Hen-
nessy, Governor of Mauritius. Earl
Grey, on Representative Govern-
ments, said, p. 346 : “ But there
was this most important difference
between a colonial Governor and an
English sovereign of the houses of
Plantagenet or Tudor, that the
former was responsible to a distant
and generally impartial authority,
to which the colonists could always
appeal to relieve them from a
B.N.A. ACT, s. 59.-—-V1EWS OF LIEUT.-GOVERNOR.
29
governor who abused his power.
The Crown could recall any gover-
nor who failed in the discharge of
his duties, and if it refused to do so
on a well-grounded complaint from
the inhabitants of a colony, they
were entitled to lay their grievance
before Parliament, to which the
ministers on whose advice the
Crown had acted were bound to an-
swer for what had been done.” Sir
John argued from these authori-
ties that the same power that rested
in the Imperial Parliament with
respect to colonial Governors ap-
pointed by direct command of Her
Majesty exists with respect to the
Dominion Parliament so far as
regards Lieutenant-Governors ap-
pointed by commission of the
Governor—General. And he as
sumed the Lieutenant-Governor
of each province has the same
power, represents the Crown to
the same degree, as the Governor-
General represents the Crown with
respect to the Dominion Parlia-
ment within the jurisdiction of
his own province. Leggo, 668.
In 1879 the Dominion Govern-
ment applied to Her Majesty’s
Government for an expression of
views with reference to the powers
given under the B. N. A. Act, with
reference to the dismissal by the
Governor-General of a Lieutenant-
Governor. The Quebec Ministry
desired the question to be referred
to the Judicial Committee of the
Privy Council, but the Secretary
of State was of opinion the case
was analagous to that of the New
Brunswick School Act, upon which
in 1872 the Canadian House of
Commons sought to obtain the
opinion of the Judicial Committee.
(See sec. 93.) He therefore con-
sidered that Her Majesty could not
with propriety be advised to inter-
fere. But that case did come be-
fore the Privy Council in Maher
v. Town of Portland, 1874. See
now the Supreme Court Amend-
ment Act, 54 80 55 Vict. (Dom.)
c. 25. s. 4, giving power to spe-
cially refer such questions to
the Supreme Court, which may
come to Her Majesty in Coun-
cil. In a despatch 3 July, 1879,
the Secretary of State conveyed
the following conclusions of Her
Majesty’s Government: “ There
can be no doubt thata Lieutenant-
Governor of a province has an un-
questionable constitutional right to
dismiss his ministers if, from any
cause, he feels it incumbent upon
him to do so. In the exercise of
this right, as of any other of his
functions, he ought, of course, to
maintain the impartiality towards
rival political parties which is
essential to the proper perform-
ance of the duties of his otﬁce;
and for any action he may take he is
(under the 59th sec.) directly res-
ponsible to the Governor-General.”
“ In deciding whether the conduct
of a Lieutenant- Governor merits re-
moval from office, the Governor-
General—as in the exercise of
other powers vested in him by the
Imperial statute—must act by and
with the advice of his ministers.”
That the opinion of a Governor-
General was entitled to peculiar
weight (from his position), “yet
Her Majesty’s Government do not
ﬁnd anything in the circumstances
which would justify him from de-
parting in this instance from the
general rule and declining to follow
the decided and sustained opinion
of his ministers, who are respon-
sible for the peace and good
government of the Dominion to
the Parliament.” “ The cause
assigned for the removal of
a Lieutenant-Governor must be
communicated.” But he asked
that the Canadian ministers should
review their decision, to “ consider
whether it were necessary for the
advantage of good government or
contentment of the province that
so serious a step should be taken as
the removal of a Lieutenant-Gover-
nor from office.” “ The spirit and
intention of the Act being that the
tenure of the office of Lieutenant-
Governor should endure, as a rule,
for the term of years speciﬁcally
LETELLIER
CASE.
30 B.N.A. ACT, S. 60.—USEFULNESS ()F LIEUT.-GOV.
LETELLIER
CASE.
Salaries of
Lieutenant-
Governors.
Oaths, &c. of
Lieutenant-
Governor.
Application of
provisions re-
ferring to
Lieutenant-
Governor.
Appointment
of executive
oﬁicers for
Ontario and
Quebec.
mentioned; and that, not only,
should the power of removal never
be exercised except for grave causes,
but that the fact that the political
opinions of a Lieutenant-Governor
had not been during his former
career in accordance with those
held by any Dominion ministry
who might happen to succeed to
power during his term of office
would afford no reason for its
exercise.”
The Dominion Ministry retained
their originial opinion, and by
Order in Council, 25 July 1879, it
was resolved that it was expedient
Mr. Letellier should be removed,
the cause assigned being that after
the votes of the House of Com-
mons during the last session, and
that of the Senate during the
present, his usefulness as a Lien-
tenant- Governor was gone. 3 Todd’s
Bri. C01. [1880 ed], pp. 405, 411.
Lord Duiferin laid down this
principle at Halifax, August 1873 :
“ My only guiding star in the con-
duct and maintenance of my official
relations with your public men is
the Parliament of Canada. I be-
lieve in Parliament, no matter
which way it votes; and to those
men alone whom the deliberate
will of the Confederate Parliament
of Canada may assign to me as my
responsible advisers, can I give my
conﬁdence. Whether they are
heads of this party, or of that party,
must be a matter of indifference to
the Governor-General; so long as
they are maintained he is bound
to give them his unreserved con-
ﬁdence, to defer to their advice,
and to loyally assist them with his
councils. As a reasonable being
he cannot help having convictions
on the merits of different policies,
but these considerations are ab-
stract and speculative and devoid of
practical effect in his official re-
lations. As the head of a con-
stitutional state, engaged in the
administration of Parliamentary
government, the Governor-General
has no political friends,~—still less
can he have political enemies.
The possession, or, being suspected
of such possession, would destroy
his usefulness.” Leggo’s Lord
Dufferin, 662.
60, The salaries of the Lieutenant-Governors shall
be ﬁxed and provided by the Parliament of Canada.
61. Every Lieutenant-Governor shall, before assum-
ing the duties of his ofﬁce, make and subscribe before
the Governor-General or some person authorized by him
oaths of allegiance and ofﬁce similar to those taken by
the Governor-General.1
62, The provisions of this Act referring to the
Lieutenant-Governor extend and apply to the Lieu-
tenant-Governor for the time being of each province,
or other the chief executive officer or administrator
for the time being carrying on the government of the
province, by whatever title he is designated.
63. The Executive Council of Ontario and of Quebec
shall be composed of such persons as the Lieutenant-
1 See Note, sec. 58.
B.N.A. AcT, 64.-THE CROWN As CREDITOR. 31
Governor from time to time thinks ﬁt, and in the ﬁrst
instance of the following ofﬁcers, namely,—the
Attorney-General, the Secretary and Registrar of the
province, the Treasurer of the province, the Commis-
sioner of Crown Lands, and the Commissioner of Agri-
culture and Public Works, with in Quebec the Speaker
of the Legislative Council and the Solicitor-General.
641-, The constitution of the executive authority in
each of the provinces of Nova Scotia and New
Brunswick shall, subject to the provisions of this
Act, continue as it exists at the Union, until altered
under the authority of this Act.1
l The Dominion and provinces
have co-ordinate authority within
their respective spheres, both being
subj eet to the Imperial Parliament.
The question in Maritime Bank of
Canada '0. New Brunswick Re-
ceiver General, July 2, [1892]
A. C. 437; 61 L. J. P. C. 75;
67 L. T. 126 ; reported below
17 80 20 S. C. R. 657, 695,
whether the Provincial Gov-
ernment were entitled to payment
in full over the other depositors
and simple contract creditors of the
bank. When the bank stopped pay-
ment, 1887, the Provincial Govern-
ment was a simple contract creditor
for $35,000, being public money of
the province deposited in the name
of the Receiver-General. The Re-
ceiver-General claimed payment in
full as representing Her Majesty.
The Judicial Committee (through
Lord Watson) held that the eﬁect of
the Dominion Act was not to sever
all connection between the Crown
and the provinces. The Act of
1867 nowhere professes “ to curtail
in any respect the rights and privi-
leges of the Crown, or to disturb
the relations then subsisting be-
tween the sovereign and the pro-
vinces. The object of the Act was
neither to weld the provinces into
one, nor to subordinate provincial
governments to a central authority,
but to create a federal government
in which they should all be repre-
sented, entrusted with the exclusive
administration of affairs in which
they had a common interest, each
province retaining its independence
and autonomy.” “ The prerogative
of the Queen, when it has not been
expressly limited by local law or
statute, is as extensive in Her
Majesty’s Colonial possessions as
in Great Britain. And the Crown
as a simple contract creditor for
public moneys of the province de-
posited with the bank was entitled
to priority over other creditors of
equal degree.”
This decision affirmed Reg v.
Bank of Nova Scotia [11 S. C.
R. I].
In ExoHANeE BANK or CANADA
(v. THE QUEEN [from Q. B.
Quebec] February 18, 1886, ll
App. 157; 55 L. J. P. C. 5; 54
L. T. 802; and below, 1 Mon.
L. R. 302, the result was diife~
rent, because in the province of
Quebec the prerogative of the
Crown is limited by the two Codes
(the Civil Procedure Code and the
Civil Code) to the case of the com-
mon debtor being an officer liable
to account to the Crown for public
moneys collected or held by him.
And therefore, in that case, the
Privy Council reversed the j udg-
ment of the Court below, and
negatived the preference claimed by
the Dominion Government. See
sub-sec. 13, sec. 92, for full report.
Executive
Government of
Nova Scotia
and New
Brunswick.
MARITIME
BANK or
CANADA 2:. NEW
BRUNSWICK
REc-GENERAL.
ExcIIANeE
BANK or
CANADA 2;.
TIIE QUEEN.
32 B.N.A. AcT, s. 65.-_PREROGATIVE or THE cRowN.
Powers to be
exercised by
Lieutenant-
Governor of
Ontario or
Quebec with
advice or
alone.
ATT.-GEN.
or QUEBEc
v. REED.
65, All powers, authorities, and functions which,
under any Act of the Parliament of Great Britain, or
of the Parliament of the United Kingdom of Great
Britain and Ireland, or of the Legislature of Upper
Canada, Lower Canada or Canada, were or are, before
or at the Union, vested in or exerciseable by the re-
spective Governors or Lieutenant-Governors of those
provinces, with the advice, or with the advice and
consent, of the respective Executive Councils thereof,
or in conjunction with those Councils or with any
number of members thereof, or by those Governors
or Lieutenant-Governors individually, shall, as far as
the same are capable of being exercised after the Union
in relation to the government of Ontario and Quebec
respectively, be vested in and shall or may be exercised
by the Lieutenant-Governor of Ontario and Quebec
respectively with the advice, or with the advice and
consent of, or in conjunction with, the respective
Executive Councils or any members thereof, or by
the Lieutenant-Governor individually, as the case
requires, subject, nevertheless (except with respect
to such as exist under Acts of the Parliament of
Great Britain, or of the Parliament of the United
Kingdom of Great Britain and Ireland), to be abolished
or altered by the respective Legislatures of Ontario and
Quebec.
1 See secs. 14, 65.
The Dominion Act did not take
away the prerogative of the Crown
in any of the provinces. Maritime
Bank of Canada 12. New Brunswick
Receiver-General, July 2, [1892]
A. C. 437; 61 L. J. P. C. 75; 67
L. T. 126; and below 17 & 20 S.
C. R. 657, 695. But in the province
of Quebec the prerogative of the
Crown to preferable payment out
of common debtors’ estate is limi-
ted by the old French law in that
province to the case of the common
debtor being an officer liable to
account for public money. Ex-
change Bank of Canada 0. Reg,
Feb. 18, 1886, 11 App. Cas. 157;
and below, 1 Mon. L. R. 302.
See sub-sec. 13, sec. 92.
In ATT—GEN. OF QUEBEC 'v.
REED, November 26, 1884, 10
App. Cas. 141; 54 L. J. P. C. 12;
52 L. T. 393; 33 W. R. 618; be-
low 8 S. C. B. 408, an Act of the
Provincial Legislature of Quebec,
43 85 44 Vict. c. 9., imposed a tax
of 10 cents on every exhibit pro-
duced in court in any action depend-
ing therein. The S upreme Court, re-
versing the Court of Queen’s Bench,
Quebec, held the Act invalid.
Earl Selborne, L.C., after saying
the Act was not valid under sub-
B.N.A. ACT, S. (i5.--THE QUEEN’S PREROGATIVE. 33
sec. 2, sec. 92, said (10 App. Cas.
p. 145): “The 65th section pre-
serves the pre-existing powers of
the Governors or Lieutenant-
Governors in Council to do cer-
tain things not there speciﬁed.
That, however, was subject to
a power of abolition or alteration
by the respective legislatures of
Ontario and Quebec, with the ex-
ception, of course, of what depen-
ded on Imperial legislation. What-
ever powers of that kind existed,
the Act with which their Lordships
have to deal neither abolishes nor
alters them. It does not refer to
them in any manner whatever. It
is said that, amongst those powers
there was a power, not taken away,
to lay taxes of this very kind upon
legal proceedings in the Courts,
not for the general revenue pur-
poses of the province, but for the
purpose of forming a special fund,
called ‘ The Building and Jury
Fund,’ which was appropriated for
purposes connected with the ad-
ministration of justice. \Vhat has
been done here is quite a different
thing. It is not by the authority of
the Lieutenant-Governor in Coun-
cil. It is not in aid of the Building
and Jury Fund. It is a legisla-
tive act without any reference
Whatever to those powers, if they
still exist, quite collateral to them;
and if they still exist, and if it still
still exists itself, capable of being
exercised concurrently with them;
to tax for the general purposes of the
province, and in aid of the general
revenue, these legal proceedings.
It appears to their Lordships that
unless it can be justiﬁed under
sec. 92 of the B. N. A. Act, 1867,
it cannot be justiﬁed under the
65th.” [For ﬁrst part of this
judgment see sub-sec. 14, sec. 92.]
It is to be presumed that the Le-
gislature does not intend to deprive
the Crown of any prerogative unless
it expresses its intention to do so
in explicit terms, or makes the
inference irresistible. \Vilson v.
Berkley, Plow. 223 ; Rex e. Cook,
3 T. R. 519; Att.-Gen. 'v. New-
S 2340.
man, 1 Price 438; Att.-Gen. 'v.
Bertrand, L. R. 1 P. C. 520;
Reg. 1). Davidson, 21 U. C. Q. B.
41 ; Reg. 1). Amers, 42 U. C. Q. B.
391. Section 1 of Quebec Act,
1886, c. 98., declared that “The
Lieutenant-Governor, or person ad-
ministering the government of the
province, was a corporation sole.”
The Minister of Justice, 22 March
1887 , reported this section is taken
from the Con. Sta. Canada 0. 10.
s. 1, which may possibly be under
sec. 65 of the B. N. A. Act in
force in Quebec in respect of the
office of Lieutenant- Governor.
The provision is clearly one that
relates to the ofﬁce of Lieutenant-
Governor, and as such is With_
drawn from the legislative author-
ity of the Legislature of Quebec by
the 92nd section. In January
1887, an Act passed by the pro-
vince of Manitoba respecting the
Governor-General and his deputies
was disallowed on the ground that
it was not within the legislative
authority of the Manitoba Legis-
lature. See Prov. Leg. 1887, p. 25).
In REG. 2:. THE AMERs, Feb.
23, 1878, 42 U. C. Q. B. 391,
where numerous cases are cited
on the prerogative of the Crown,
Harrison, C.J., said: “The pre~
rogative as to the issue of special
commissions of Oyer and Terminer
and General Gaol Delivery exists in
all its integrity in the case of what
are now known as the unorganised
tracks or provisional judicial dis~
tricts. The exercise of the power
by the Governor-General of the
Dominion, or by the Lieutenant-
Governor of the provinces, is notin-
consistent either With sub-sec. 27 ,
sec. 91, or sub-sec. 14 of sec. 92 of
the B. N. A. Act. The ﬁrst em-
powers the Legislature of the Do-
minion to make laws in relation to
the criminal law, except the com
stitution of the courts of criminal
jurisdiction, but including the pro-
cedure in criminal matters. The
second empowers the Legislature
of the province to make laws in
C
A'I"l‘.—GEN. or
QUEBEC v.
REED.
REG. 2). THE
AMERS.
34
B.N.A. ACT, s. 66.-DEPUTY GOVERNOR. '
REG. 4). THE
AMERS.
Application of
provisions
referring to
Lieutenant-
Governor in
Council.
relation to the administration of
justice in the provinces, including
the constitution, maintenance, and
organisation of provincial courts,
both of civil and criminal jurisdic-
tion, and including procedure in
civil matters in these courts. But
neither Legislature has as yet at-
tempted to interfere with the pre-
rogative as to special commissions
in the case of the unorganised
tracts of country or provisional
judicial districts, and when either
Legislature shall attempt to do so
it will be time enough to decide
which, under the B. N. A. Act, has
the power to do so. There still
remains the question as to where,
since confederation, the prerogative
power exists. [His Lordship read
sec. 9 of the B. N. A. Act.] The
power, being a prerogative one, can
only be exercised by the Queen
or her representatives. The Go-
vernor-General of Canada is the
only executive oﬁicer provided for
by the Act who answers this de-
scription. The Act, however, by
sec. 14, makes it lawful for the
Queen, if she sees ﬁt, to authorize
the Governor-General from time
to time to appoint any person or
persons, jointly or severally, to be
her deputy or deputies within any
part or parts of Canada, and in
that capacity to exercise during
the pleasure of the Governor-
General such of the powers, author—
ities, and functions of the Gover-
nor-General as the Governor-
General deems it necessary or
expedient to assign to him or
them, subject to any limitations
or directions expressly given by the
Queen. The commission issued
by the Dominion Government is
tested in the name of the Hon. W.
B. Richards, Deputy of the Gover-
nor-General of Canada, and as there
is no statement to the contrary in
the case, I must assume that the
Queen has authorized the appoint-
ment of a Deputy Governor, and
that the prerogative power in
question was conferred by the
Governor-General on the Deputy
Governor without any limitation
or direction on the part of the
Queen, and so that it has been
exercised by the proper authority.”
And his Lordship held that the
Crown by prerogative right could
issue a commission to a judge
of the provisional judicial district
of Algoma to hold a court of
Cyer and Terminer and General
Gaol Delivery for trial of felonies.
It is said the Canadian Act, 51
Vict. c. 43. s. 5——“ Notwithstanding
any prerogative, or anything con-
tained in ‘ The Interpretation Act ’
or in ‘The Supreme and Ex-
chequer Courts Act,’ no appeal
shall be brought in any criminal
case from any udgment or order
of any court in Canada to any
court of appeal or authority, by
which in the United Kingdom ap-
peals or petitions to Her Majesty
in Council may be heard,”—does
away with any appeal to the Privy
Council in criminal cases, but it
does not seem quite correct to say
the Privy Council cannot again
hear an appeal from a conviction
in Canada for murder. Can any
Act but an Imperial Act take away
the prerogative of the Crown to
send a case to Her Majesty’s Privy
Council for advice? The preroga-
tive of the Queen cannot be taken
away without express words; and
if it is a prerogative to be exercised
in England the limitation ought
to be expressed in an Act of the
British Parliament.
66, The provisions of this Act referring to the
Lieutenant-Governor in Council shall be construed as
referring to the Lieutenant-Governor of the province
acting by and with the advice of the Executive Council
thereof.
B.N.A. AoT, 68.-PROV. LEGISLATIVE POWER. 35
6'7, The Governor-General in Council may, from
time to time, appoint an Administrator to execute the
ofﬁce and functions of Lieutenant-Governor during
his absence, illness, or other inability.
68, Unless and until the Executive Government
of any province otherwise directs with respect to that
province, the seats of government of the provinces
shall be as follows, namely,—-—of Ontario, the city of
Toronto; of Quebec, the city of Quebec; of Nova
Scotia, the city of Halifax ; and of New Brunswick,
the city of Fredericton.
LEGISLATIVE PowEE.
1.—Ontario.
69. There shall be a Legislature for Ontario con-
sisting of the Lieutenant-Governor and of one House
styled the Legislative Assembly of Ontario.
70, The Legislative Assembly of Ontario shall be
composed of eighty-two members to be elected to
represent the eighty-two electoral districts set forth in
the First Schedule to this Act.
2.-—Quebec.
'71, There shall be a Legislature for Quebec consisting
of the Lieutenant-Governor and of two Houses, styled
the Legislative Council of Quebec and the Legislative
Assembly of Quebec.1
1 In considering the 16th section
of the Quebec Act, 49 Vict. c. 34.,
by which the Batonnier of the
province is given precedence over
other members of the provincial
Bar, the Minister of Justice said :
“ In Lenoir u. Ritchie, 3 SC. R. 575,
Henry, Taschereau, and Gwynne,
J J ., a majority of the Court held
that a provincial legislature has
no power to authorize the Lieu-
tenant- Governor to appoint Queen’s
Counsel, or to grant to any mem-
ber of the Bar a patent of prece-
(lence in the courts of the province,
as the prerogative of raising practi_
tioners in the courts of justice to
a superior eminence by constituting
them serjeants, or by granting
them letters of precedence to such
barristers as Her Majesty thought
proper to honour with that mark
of distinction, belonged to Canada,
to the Governor-General as repre-
senting the Crown, and not to
Lieutenant-Governors. The Court
took notice of a despatch of Lord
Kimberley in 1872, wherein his
Lordship stated that he was ad-
vised that the legislature of a
Administration
in absence, &c.
of Lieutenant-
Governor.
Seats of pro-
vincial Govern-
ments.
Legislature for
Ontario.
Electoral dis-
tricts.
Legislature for
Quebec.
LENOIR v.
RITCHIE.
02
36 B.N.A. ACT, s. 72.—-SUMMONING FOR CONTEMPT.
Constitution of
Legislative
Council.
'72, The Legislative Council of Quebec shall be com-
posed of twenty-four members, to be appointed by the
Lieutenant-Governor, in the Queen’s name, by instru-
ment under the great seal of Quebec, one being ap-
pointed to represent each of the twenty-four electoral
divisions of Lower Canada in this Act referred to, and
each holding office for the term of his life, unless the
Legislature of Quebec otherwise provides under the
provisions of this Act.1
province could confer by statute
on its Lieutenant-Governor the
power of appointing Queen’s
Counsel.” In a report dated
22 March 1887, the Minister of
Justice said: “ Since 187 9 Lenoir
u. Ritchie has continued as an
authoritative enunciation of the
law on the subject, and it is clear
for the above reasons that a legis-
lature cannot in this respect exer-
cise directly a power which it
cannot enable the Lieutenant-
Governor to exercise.” He there-
fore recommended, 22 March 1887,
that the 16th section of the Quebec
Act, 49 Vict. c. 34., be amended
so as to show clearly that the
Legislature intended the enactment
,to be “ subject to the exercise by
the Governor-General of the Royal
prerogative.” Provincial Legis-
lation, 1888, pp. 25—56. But on a
reconsideration, 16 July 1887, the
Minister of Justice [Thompson]
allowed the Act to become opera-
tive, those members of the Bar who
felt aggrieved to seek their remedy
at law. [See Note, pp. 7, 11.]
1 See sec. 41. In em parte
C. A. Dansereau, 17 Feb. 1875,
19 L. C. J. 210, it was held
(1) that the Legislative Assembly
of the province of Quebec has
power to compel the attendance of
witnesses before it, and may order
a witness to be taken into custody
by the Serjeant-at-Arms if he re-
fuses to attend when summoned,
and that the omission to state
in the Speaker’s warrant of arrest
the grounds and reasons therefor
is not a fatal defect.
In that case it was admitted
that the provincial legislature
claimed all the powers and privi-
leges possessed by the House of
Commons. But if that point was
abandoned that they could still
commit for contempt, Sanborn, J .,
in that case said (p. 238) : “ VVhat-
ever powers and immunities at-
tached to the Legislative Assem-
bly of the late province of Lower
Canada and the Legislative Assem-
bly of the late province of Canada
as were necessarily incident to the
proper exercise of their functions
as legislative bodies, attach to the
Legislative Assembly of the pre-
sent province of Quebec. The
Senate of the Dominion or the
Legislative Council of the province
cannot claim the judicial powers of
the House of Lords, and yet there
are many judicial powers to be
exercised in connection with lega-
tion, the depository of which must
be somewhere. For example, juris-
diction over divorce is given to the
Federal Parliament. It has been
thought necessary to assume power
to examine witnesses upon oath [see
Imp. 34 & 35 Vict. c. and
determine the matter judicially,
though neither House had greater
powers than the Commons House
of the United Kingdom. It be-
came a necessary incident to the
powers conferred. The Legisla-
tive Assembly of our province has
not the mere nude power of legis-
B.N.A. ACT, s. 73.—-QUALIF1(JATION QUESTIONS. 37
73. The qualiﬁcations of the Legislative Councillors ﬁlaliﬁcatim Of
islative
of Quebec shall be the same as those of the Senators for Caimillors-
Quebec.
'74-. The place of a Legislative Councillor of Quebec (1122833333,
. . . _ q 1 ~-
shall become vacant 1n the cases, mututts mutuudts, t10n,&0-
in which the place of Senator becomes vacant.
'75, When a vacancy happens in the Legislative Vacancies
Council of Quebec by resignation, death, or otherwise,
the Lieutenant-Governor, in the Queen’s name, by
instrument under the great seal of Quebec, shall ap-
point a ﬁt and qualiﬁed person to ﬁll the vacancy.
Questions as to
'7 6, If any question arlses respecting the quahﬁca- vacancies, 8m
tion of a Legislative Councillor of Quebec, or a vacancy
in the Legislative Council of Quebec, the same shall be
heard and determined by the Legislative Council.
Speaker of
Legislative
Council.
'7 7, The Lieutenant-Governor may from time to time,
by instrument under the great seal of Quebec, appoint
a member of the Legislative Council of Quebec to be
Speaker thereof, and may remove him and appoint
another in his stead.
78. Until the Legislature of Quebec otherwise pro-
vides, the presence of at least ten members of the
Legislative Council, including the Speaker, shall be
necessary to constitute a meeting for the exercise of
its powers.
Quorum of
Legislative
Council.
79. Questions arising in the Legislative Council of gills
Quebec shall be decided by a majority of voices, and Council.
the Speaker shall in all cases have a vote, and when
lation. It has by implication, by
usage, and by a constitution
modelled upon the English House
of Commons, also an inquisitorial
power to make itself acquainted
by means of committees of the
needs of the province, and the evils
that exist in society over which it
has control, in order to legislate
intelligently and administer wisely.
The appointment of committees of
inquiry for purposes of this nature
is incident to the existence and
proper working of every legislative
body. It is associated with all
our ideas of legislation under the
British system, and has been exer-
cised without question in all our
Parliamentary history as a pro-
vince.”
38 B.N.A. ACT, s. 80.-THE LEGISLATURES.
Constitution
of Legislative
Assembly of
Quebec.
First session of
Legislatures.
Summoning of
Legislative
Assemblies.
Restriction on
election of
holders of
oﬁices.
the voices are equal the decision shall be deemed to
be in the negative.
80, The Legislative Assembly of Quebec shall be
composed of sixty-ﬁve members, to be elected to repre-
sent the sixty-ﬁve electoral divisions or districts of
Lower Canada in this Act referred to, subject to
alteration thereof by the Legislature of Quebec: Pro-
vided that it shall not be lawful to present to the
Lieutenant-Governor of Quebec for assent any Bill for
altering the limits of any of the electoral divisions or
districts mentioned in the Second Schedule to this Act,
unless the second and third readings of such Bill
have been passed in the Legislative Assembly with the
concurrence of the majority of the members repre-
senting all those electoral divisions or districts, and
the assent shall not be given to such Bill unless an
address has been‘presented by the Legislative Assembly
to the Lieutenant-Governor stating that it has been
so passed.
3.—Ontario and Quebec. .
81. The Legislatures of Ontario and Quebec respec-
tively shall be called together not later than six months
after the Union.
82. The Lieutenant-Governor of Ontario and of
Quebec shall from time to time, in the Queen’s name,
by instrument under the great seal of the province,
summon and call together the Legislative Assembly
of the province.
83. Until the Legislature of Ontario or of Quebec
otherwise provides, a person accepting or holding in
Ontario or in Quebec any ofﬁce, commission, or em-
ployment, permanent or temporary, at the nomination
of the Lieutenant-Governor, to which an annual salary,
or any fee, allowance, emolument, or proﬁt of any
kind or amount whatever from the province is at;
tached, shall not be eligible as a member of the Legis-
lative Assembly of the respective province, nor shall
he sit or vote as such; but nothing in this section
B.N.A. ACT, s. 84.—RE-ELECTION. 39
shall make ineligible any person being a member of
the Executive Council of the respective province, or
holding any of the following ofﬁces, that is to say, the
ofﬁces of Attorney-General, Secretary and Registrar of
the province, Treasurer of the province, Commissioner
of Crown Lands, and Commissioner of Agriculture and
Public Works, and in Quebec Solicitor-General, or shall
disqualify him to sit or vote in the House for which he is
elected, provided he is elected while holding such ofﬁce.
84. Until the Legislatures of Ontario and Quebec
respectively otherwise provide, all laws, which at the
Union are in force in those provinces respectively,
relative to the following matters or any of them,
namely,-——the qualiﬁcations and disqualiﬁcations of per-
sons to be elected or to sit or vote as members of the
Assembly of Canada, the qualiﬁcations or disqualiﬁca-
tions of voters, the oaths to be taken by voters, the
returning ofﬁcers, their powers and duties, the pro-
ceedings at elections, the periods during which such
elections may be continued, and the trial of contro-
verted elections and the proceedings incident thereto,
the vacating of the seats of members, and the issuing
and execution of new writs in case of seats vacated
otherwise than by dissolution—shall respectively apply
.to elections of members to serve in the respective
Legislative Assemblies of Ontario and Quebec :1
Provided that, until the Legislature of Ontario other-
wise provides, at any election for a member of the
Legislative Assembly of Ontario for the district of
Algoina, in addition to persons qualiﬁed by the law of
the province of Canada to vote, every male British
subject, aged twenty-one years or upwards, being a
householder, shall have a vote.
85. Every Legislative Assembly of Ontario and every
Legislative Assembly of Quebec shall continue for four
1 In THEBERGE Iv. LANDR-Y, L. J. P. C. 1; 35 L. T. 640, an
Sup. C. Q., 29 May 1876; Nov. appeal from the decision of the su-
7, 1876, 2 App. Cas. 102 ; 46 perior court holding the appellant
-
Continuance of
existing elec-
tion laws.
Duration of
Legislative
Assemblies.
THEBERGE v.
LANDBY.
40 B.N.A. ACT, s. 85.-—OORRUPT PRACTICES.
Yearly session
of Legislature.
Speaker,
Quorum, 850.
THEBERGE v.
LANDRY.
years from the day of the return of the writs for
choosing the same, (subject nevertheless to either the
Legislative Assembly of Ontario or the Legislative
Assembly of Quebec being sooner dissolved by the
Lieutenant-Governor of the province), and no longer.
86, There shall be a session of the Legislature of
Ontario and of that of Quebec once at least in every
year, so that twelve months shall not intervene be-
tween the last sitting of the Legislature in each pro-
vince in one session and its ﬁrst sitting in the next
session.
87, The following provisions of this Act respecting
the House of Commons of Oauada ‘ shall extend and
apply to the Legislative Assemblies of Ontario and
Quebec, that is to say,—the provisions relating to the
election of a Speaker originally, and on vacancies, the
duties of the Speaker, the absence of the Speaker,
the quorum, and the mode of voting, as if those pro-
visions were here re-enacted and made applicable in
terms to each such Legislative Assembly.
guilty of corruption, and in which
the Judicial Committee [Lord
Cairns, L.C., presiding] that they
had no power to grant an appeal, as
in such an action as an election peti-
tion there was no prerogative of
the Crown to allow an appeal. It
was, however, argued by Mr. Ben-
jamin that inasmuch as the judge
had found the appellant personally
guilty of corrupt practices, and that
sec. 267 of the Quebec Controverted
Elections Act [38 Vict. c. 8. Quebec
Statutes] provided that, if it is proved
that corrupt practices have been
committed by, or with the actual
knowledge or consent of, any candi-
date, not only the election shall be
void, but the candidate shall, during
the seven years next after the date
of such decision, be incapable of
being elected to and of sitting
in the Legislative Assembly, of
voting at any election of a mem-
ber of the House, or holding an
office in the nomination of the Coun-
cil of the Lieutenant - Governor
of the province; and that the Act
of Parliament, so far as it engrafted
on the decision of the judge this
declaration of incapacity, was ultra
vires of the powers of the legisla-
ture of the province. Lord Cairns
said : “ Upon that point their Lord-
ships do not think it necessary to
express any opinion whatever. If
the Act of Parliament was in this
respect, as contended, ultra tires
the provincial legislature, the only
result will be that the conse-
quence declared by this section of
the Act of Parliament will not enure
against, and will not affect the
petitioner; but it- is not a subject
which should lead to any different
determination with regard to that
part of the case.” [See Note,
sees. 41 and 91.]
B.N.A. ACT, s. 88.——-ASSENT TO PROVINCIAL BILLS. 4:1
4k—Ncca Scotia and New Brunswick.
88. The constitution of the Legislature of each of
the provinces of Nova Scotia and New Brunswick
shall, subject to the provisions of this Act, continue
as it exists at the Union until altered under the autho-
rity of this Act; and the House of Assembly of New
Brunswick existing at the passing of this Act shall,
unless sooner dissolved, continue for the period for
which it was elected.
5.—Ontari0, Quebec, and Nova Scotia.
89. Each of the Lieutenant-Governors of Ontario,
Quebec, and Nova Scotia shall cause writs to be issued
for the ﬁrst election of members of the Legislative
Assembly thereof, in such form and by such person as
he thinks ﬁt and at such time and address to such
returning ofﬁcer as the Governor-General directs, and
so that the ﬁrst election of member of Assembly for
an y electoral district or any subdivision thereof, shall
be held at the same time and at the same places as
the election for a member to serve in the House of
Commons of Canada for that electoral district.
6.—Tke Four Provinces.
90, The following provisions of this Act respecting
the Parliament of Canada, namely,~—the provisions re-
lating to appropriation and tax bills, the recommenda-
tion of money votes, the assent to bills, the disallowance
of Acts, and the signiﬁcation of pleasure on bills re-
served—shall extend and apply to the Legislatures of
the several provinces, as if those provisions were here
re-enacted and made applicable in terms to the respec-
tive provinces and the Legislatures thereof, with the
substitution of the Lieutenant-Governor of the province
for the Governor-General, of the Governor-General1 for
is vested in Her Majesty by sees;
56 and 57, that is, in the Queen in
Council. .
1 The power of disallowance
is here vested in the Governor-
General, in the same manner as the
power of assent or disallowance
Constitutions
of Legislatures
of Nova Scotia
and New
Brunswick.
First elections.
Application to
Legislatures of
provisions
respecting
money votes,
&c.
42
B.N.A. ACT, 90.--DISALLOWIN G BILLS.
the Queen and for a Secretary of State, of one year 1 for
two years, and of the Province for Canada.
1 If notice of Governor-Gene-
ral’s assent to a provincial Act is
not received within a year of its pre-
sentation, and the Lieutenant-Go-
vernor’s assent is also not received,
the Attorney-General of Prince
Edward Island was of opinion the
Act could not have any force. But
the Bill could be re-enacted and
assented to at once if the Governor-
General has already given his as-
sent. See Prov. Leg, 1886, 903—
905. See sec. 57.
Two Bills were passed by the
Ontario Legislature, one incorpor-
ating the Western and the other
the Eastern Ontario Loyal Orange
Association. The Minister of J us-
tice, John A. Macdonald, reported
to the Governor-General: “ These
Acts incorporate two provincial as-
sociations. The only object of these
associations appearing on the face of
the Act is the holding of property,
real and personal. This being a pro-
vincial object, the Acts are within
the competence and jurisdiction of
the provincial legislatures. Such
being the case, the Lieutenant-
Governor ought not to have reser-
ved these Acts. Under the system
of government that obtains in Eng-
land, as well as in the Dominion
and its several provinces, it is the
duty of the advisers of the executive
to recommend every measure that
has passed the legislature for the
executive assent. The provisions in
the B. N. A. Act, ‘ That the Gover-
nor-General may reserve a Bill for
the signiﬁcation of Her Majesty’s
pleasure,’ was solely made with
the view of protecting Imperial
interests and the maintenance of
Imperial policy ; and if your
Excellency should exercise the
power of reservation conferred on
you, you would do so in your ca-
pacity as an Imperial officer and
under Royal instructions.” “ So in
any province the Lieutenant-Gover-
nor should only reserve a Bill in
his capacity as an ofﬁcer of the
Dominion, and under instructions
from the Governor-General.” “ The
Ministers of the Governor-General,
and of the Lieutenant-Governor, are
alike bound to oppose in the legis-
lature measures of which they dis-
approve, and if, notwithstanding,
such a measure is carried, the
Ministry should either resign or
accept the decision of the legisla-
ture, and advise the passage of the
Bill.” “ It then rests with the Go-
vernor-General or the Lieutenant-
Governor, as the case may be, to
consider whether the Act conﬂicts
with his instructions or his duty as
an Imperial or a Dominion ofﬁcer,
and if it does so conﬂict he is bound
to reserve it, whatever the advice ten-
dered to him may be, but if not, he
will doubtless feel it his duty to give
his assent in accordance with advice
to that effect, which it was the duty
of his Ministers to give.” He then
said the Acts were within the com-
petence of the Ontario Legislature.
Prov. Leg, 1886, p. 907.
On 11th March 1869, the Gover-
nor-General wrote to Lord Gran-
ville, Secretary of State : “ Previous
to the union of the provinces, the
Governor of each province either
assented to or withheld Her Majes-
ty’s assent to, or reserved for Her
Majesty’s assent, such Bills passed
by the legislature as he thought pro-
per, and he was especially enjoined
by the Royal instructions to reserve
certain classes of Bills therein speci-
ﬁed. The same practice is continued
by the Union Act with respect to
legislation of the Parliament of
Canada. The Act provides that
the Lieutenant-Governor of each
province may reserve Bills for the
consideration of the Governor-
General, but there is no provision
by which the latter is to take Her
Majesty’s pleasure on such legisla-
tion. The Royal instructions are
silent on this point. In the absence
of instructions, I assume that I
should exercise the power of assent
B.N.A. ACT, s. 91.—DOMINION POWERS.
43
to, or reservation of, Bills under the
advice of the Privy Council of this
Dominion.”
On 8th May 1869, Earl Gran-
ville wrote to the Governor-General
of Canada (Sir John Young) : “ The
prohibitions in the seventh para-
graph of the Royal instructions,
with one qualiﬁcation, rest on
grounds of Imperial policy, and,
therefore, the Governor-General of
the Dominion is not at liberty, even
on the advice of his Ministers, to
sanction or assent to any provincial
law in violation of them. He would,
indeed, be bound to instruct the
Lieutenant-Governor of the pro-
vince not to give such assent.
“ With regard to the second
point, if the Governor-General were
advised by his Ministers to disallow
any provincial Act as illegal or un-
constitutional, it would in general be
his duty to follow that advice,
whether or not he concurred in
their opinion. If he were advised
by his Ministers to sanction any
Act which appeared to him illegal,
it would be his duty to withhold his
sanction and refer the question to
the Secretary of State for instruc-
tions. The same course might be
taken if the Act recommended for
sanction by his Ministers ap-
peared gravely unconstitutional,
but it is impossible to relieve the
Governor-General from the duty of
judging, with respect to each par-
ticular case, whether the objection
to an Act, not of doubtful legality,
is suﬁiciently grave as, under all
circumstances, to warrant a refusal
to act at once 011 the advice ten-
dered to him. With regard to your
remark that it is worthy of consider-
ation whether it would not be expe-
dient to establish a- tribunal for the
decision of all questions of constitu-
tional law and conﬂict of urisdiction,
I see no reason for the establishment
of such a tribunal. Any question
of this kind could be entertained and
decided by the local courts, subject
to an appeal to the Judicial Com-
mittee of the Privy Council, and
it does not appear in what re-
spect this mode of determination
is likely to be inadequate. Prov.
Leg., pp. 6, 8. See p. 30 andnote
to see. 93.
VI.—-—DISTRIBU’1‘ION or LEGISLATIVE POWERS.
Powers of the Parliament.
91, It shall be lawful for the Queen, by and with
the advice and consent of the Senate and House of
Commons, to make laws for the peace, order, and
good government of Canada, in relation to all matters
not coming within the classes of subjects by this Act
assigned exclusively to the Legislatures of the pro-
vinces,1 and for greater certainty, but not so as to
restrict the generality of the foregoing terms of this
1 Where the subject-matter is of
a local or private nature, “ the onus
is on the ” person alleging the pro-
vincial Act does not come within
the power of the provincial Parlia-
ment to show that “ it does also
come within one or more of the
classes of the subjects specially
enumerated in the 91st sec.” See
Lord Selborne in L’Union St.
Jacques de Montreal 1). Belisle.
In Quebec B. 20 Sept. 1872, 17'&§
Legislative
authority of
Parliament of
Canada.
L’UNIoN ST.
. JACQUES v.
BELIsLE.
20 L. o. J. 212, 29; 8 July 1874,
'44
B.N.A. ACT, s. 91.—-THE SCHEME OF s.s. 91, 92.
For conveni—
ence of refer-
ence sub-sec. 29
is here printed.
L’UNIoN ST.
J ACQUES v.
BELISLE.
section, it is hereby declared that (notwithstanding
anything in this Act)1 the exclusive legislative au-
thority of the Parliament of Canada extends to all
matters coming within the classes of subjects next
hereinafter enumerated ; that is to say,—[see page 52.]
[Sub-sec. 29.—Such classes of subjects as are expressly
excepted in the enumeration of the classes of
subjects by this Act assigned exclusively to the
Legislatures of the provinces.
And any matter coming within any of the classes of
subjects enumerated in this section shall not be deemed
to come within the class of matters of a local or private
nature comprised in the enumeration of the classes of
subjects by this Act assigned exclusively to the Legisla-
tures of the provinces]
L. R. 6 P. C. 31; 31 L. T. 111;
22 W. R. 933.
His Lordship also said there,
“ The scheme of the 91st and 92nd
secs. is this. By the 91st see. some
matters—and their Lordships may
do well to assume, for the argu-
ment’s sake, that they are all mat-
ters except those afterwards dealt
with by the 92nd sec. ; their Lord-
ships do not decide it, but for the
argument’s sake will assume it—
certain matters, being, upon that
assumption, all those which are not
mentioned in the 92nd see, are re-
served for the exclusive legislation
of the Parliament of Canada, called
the Dominion Parliament; but be-
yond controversy, there are certain
other matters not only not reserved
for the Dominion Parliament, but
assigned to the exclusive power and
competency of the provincial legis-
lature in each province. Among these
the last is thus expressed, ‘ generally
all matters of a local or private na-
ture in the province.’ ” See further
note of this case, sub-sec. 21, sec. 91.
1 This indicates that the legisla-
ture of the Dominion Parliament
(see R. S. C. c. 120. sec. 53,
sub-sec. 2), ’ so long as it strictly
relates to these matters, is to be of
paramount authority, although,
acting under this section, the Do-
minion Parliament may trench
upon matters assigned to the pro-
vincial legislature. Compare this
sub-sec. with sub-sec. 13 of sec. 92.
See there Tennant. 2). Union Bank
of Canada. From Ontario C. A.,
8 Jan. 1892, 19 O. A. 1. In
P. C. 9 Dec. 1893, [1894] A. C.
pp. 31—45; 63 L. J. P. C. 25;
69 L. T. 774 [\Varehouse receipts
as security for an advance].
This section does not operate as
a withdrawal of the subjects as-
signed to the legislature of the Do-
minion from the cognizance of the
provincial parliaments, if there is no
legislation of the Dominion in ex-
istence on the subject in question.
Att.-Gen. of Ontario '0. Att.-Gen.
for the Dominion of Canada. From
Ontario C. A., 9 May 1893, 20
O. A. 489. Reversed in P. C.
Feb. 24, [1894] A. C. 189; 63
L. J. P. C. 59; '70 L. T. 538.
See sub-sec. 13, sec. 92.
Dealing with the hypothesis of
a law having been previously
passed by the Dominion Legisla-
ture to the effect that any associa-_
tion of this particular kind through-
out the Dominion on
certain‘ »
B.N.A. ACT, s. 9l.-—COMPETENCY OF PROV. ACTS. 415
speciﬁed conditions, assumed to
be exactly those which appear on
the face of this statute [i.e., a
provincial Act dealing with a
local and private association, pro-
viding that the members should be
compelled to accept a reduced pay-
ment], should thereupon, ipso facto,
fall under the legal administration
in bankruptcy or insolvency, Lord
Selborne said, in L’Union St.
Jacques de Montreal '0. Belisle, in
court below 20 L. C. J. 29, in P. C.
July 8, 1874,L. B. 6 P. C. 37, “Their
Lordships are not prepared to say,
if any such law as that had been
passed by the Dominion Legislature,
it would have been beyond their
competency ; nor that, if it had been
so passed, it would have been within
the competency of the provincial
legislature afterwards to take a par-
ticular association out of the scope
of a general law of that kind, so
competently passed by the authority
which had power to deal with
bankruptcy and insolvency.” See
above.
In THEBERGE u. LANDRY, from
Sup. C. Quebec, 27 June 1876, in
P. C. Nov. 7, 1876, 2 App.
Cas. 102, p. 109; 46 L. J. 1; 35
L. T. 640, the Judicial Committee
held they had no power to grant
leave to appeal from a decision,
under the Quebec Controverted
Elections Act, 1875 (38 Vict. c. 8),
in which the judge had found the
petitioner personally guilty of cor-
rupt practices ; but Mr. Benjamin
argued, secondly, even if an appeal
should not be admitted generally,
that the Act in question, the 38
Vict. c. 8. [Quebec statute], so
far as it by sec. 267 engrafted on
the decision of the judge a declara-
tion of incapacity for seven years
to be elected or to vote, etc., for a
member of the Legislative Assem-
bly, was ultra uires the Quebec
Legislature. The Quebec Legisla-
ture have no power to pass any
provision relating to qualiﬁcation
except what was bestowed by sec.
84 01' the B. N. A. Act, 1867. But
their Lordships declined in that
action to give any decision on this
point. See sec. 84.
The Dominion Parliamentpassed
an Act, 43 Vict. c. 25. s. 76 [under the
Imperial Act 34 80 U5 Vict. c. 28.,
to provide for administration, peace,
order, and good government of any
territory not for the time being inclu-
ded in any province] which establish-
ed a criminal trial before two magis-
trates and a jury of six, instead of,
in England before a ud ge and a jury
of 12. Held by the Judicial Com-
mittee that there was not the least
colour for contending that the Act
was ultra cires, and beyond the‘
competency of the Dominion Par-
liament, because the words of the
statute were apt to authorize the
utmost discretion of enactment for
the attainment of the objects pointed
to. And special leave to appeal
was refused. Riel’s case, 10 App.
Cas. 675.
By the Dominion Act, 37 Vict.
c. 103., the Colonial Building and
Investment Association was incor-
porated. The company was incor-
porated to carry on its business,
consisting of various kinds through-
out the Dominion, but, in fact, it
conﬁned the exercise of its powers
to one province, namely, to Quebec.
The Attorney-General of Quebec
maintained that the company’s ob-
jects being local, and of a private
nature, its incorporation belonged
exclusively to the provincial legis-
lature of Quebec; that the company
could obtain authority to do its
business if it obtained the consent
of the local legislature. That
under the Civil Code [see Arts.
358, 364, 366, 997, 1,007, 1,008],
the law of Quebec, corporations
cannot hold lands without the con-
sent of the Crown or the provincial
authority. [See Chaudiere Gold
Minin Co. a. Desbarats, L. R. 5
P. C. 277.] Therefore, acting in
Quebec without that consent was
illegal, but he did not go so far as
to say the company was illegally
incorporated. [See Note, sub-sec.
11, sec. 92.]
THEBERGE v.
LANDRYL
46 B.N.A. ACT, S. 91.—INCORPORATION OF COMPANIES.
COLONIAL
BUILDING
Asso. v. ATT.-
GEN. QUEBEC.
The question came up for de-
cision in COLONIAL BUILDING AND
INVESTMENT ASSOCIATION v. THE
ATTORNEY-GENERAL or QUEBEC,
from Ct. Q. B. Quebec, 24 March
1882, 27 L. C. J. 295; in P. C.
Dec 1, 1883, 9 App. Cas. 157;
53 L. J. P. C. 27; 49 L. T. 789.
The Court of Queen’s Bench,
Quebec, held by a majority that
the company was not illegally in-
corporated, but, following some re—
marks made in Citizens’ Insurance
Co. 1*. Parsons, Nov. 26, 1881,
7 App. Cas. 96; 51 L. J. P. C. 11;
45 L.T.721; in Ct. below, 4 S. C.
R. 215; they held that the associa-
tion had no right to act as a corpora-
tion in respect of some of its most
important operations in Quebec,
namely, dealing in land, and acting
in contravention of the Building Acts
of the province, and prohibited them
in absolute terms from so acting.
Sir Montague Smith, giving judg-
mentin the Privy Council, agreed
with the Quebec court that the
association was duly and legally in-
corporated, but reversed that court’s
decision, holding they were wrong
in granting an injunction, because,
although by Chaudiere Gold
Mining Co. 2’. Desbarats (an
American company), July 29, 1873,
L. R. 5. P. C. 277; 42 L. J. P. C.
7 3,it was recognised that by the law
of Quebec “ corporations cannot ac-
quire or hold lands in Quebec with-
out the consent of the Crown.” . . .
“ It may also be assumed, for the pur-
poses of this appeal, that the power
to repeal or modify this law falls
within sub-sec. 13 of sec. 92 of the
B. N. A. Act, and belongs exclu-
sively to the provincial legislature;
so that the Dominion Parliament
could not confer powers on the
company to override it. But the
powers found in the Act of incor-
poration are not necessarily incon-
sistent with the provincial law of
mortmain, which does not abso-
lutely prohibit corporations from
holding lands, but only requires,
as a condition of their doing so,
that they should have the consent
of the Crown. If that consent be
obtained, a corporation does not
infringe the provincial law of mort-
main by acquiring and holding
lands. What the Act of Incorpo-
ration has done is to create a legal
and artiﬁcial person with capacity
to carry on certain kinds of business,
which are deﬁned, within a deﬁned,
area throughout the Dominion.
Among other things it has given
the association power to deal in
land and buildings; but the capa-
city so given only enables it to ac-
quire and hold land in any province
consistently with the laws of that
province relating to the acquisition
and tenure of land. If the company
can so acquire and hold it, the Act
of Incorporation gives it capacity to
do so. It is said, however, that
the company has, in fact, violated
the law of the province by acquiring
and holding land without having
obtained the consent of the Crown.
It may be so, but this is not the
case made by the petition. Pro-
ceedings founded on the alleged
violation by a corporation of the
mortmain laws would involve an
inquiry opening questions re-
garding the scope and effect of
these laws—the fact of the Crown’s
consent, the nature and sufficiency
of the evidence, the consequence of
a violation of the laws, and the
proper parties to take advantage of
it—questions which are certainly
not raised by the allegations and
conclusions of this petition. So
with respect to the objections
founded on the Acts of the pro-
vince with regard to building so-
cieties.” “Dorian, C.J., appears
to be of opinion that, inasmuch as
the legislature of the province had
passed Acts relating to such socie-
ties, and deﬁned and limited their
operations, the Dominion Parlia-
ment was incompetent to incorpo-
rate the present association, having
proved its objects the erection of
buildings throughout the Dominion.
Their Lordships at present fail to
see how the existence of these pro-
B.N.A. ACT. S. 91.—INSURANCE mm. 47
Sir Montague Smith, delivering the CITIZENS’ IN-
judgment, holding that the Act SUB-“CE 00- "-
was valid, said: “ The scheme of PARSONS-
vincial Acts, if competently passed
for local objects, can interfere with
the power of the Dominion Parlia-
ment to incorporate the association
in question. If the association by
its operations has really infringed
the Building Societies Acts, a pro-
per remedy may doubtless be found,
adapted to such a violation of the
provincial law ; but, as their Lord-
ships have just observed with
reference to the supposed contra-
vention of the Mortmain Acts, that
is not the case made out by the
petition.” His Lordship then went
into what the petition ‘reall y alleged,
and said inquiries were mainly
directed in this case to the allega-
tion that the company’s operations
had been limited to the province of
Quebec, and then continued : “ It
would be a violation not only of the
ordinary rules of procedure, but of
fair trial, to decide this appeal on a
new case, which, assuming a lawful
corporation, rests on the supposed
infringement of the laws of the
province by the company in con-
ducting its operations.” His Lord-
ship continued to say: It was quite
plain that under the Civil Code, art.
998, the conclusions of the petition
were not adapted to the case now
relied on. [See sub-sec. 11, sec. 92.]
Earl Selborne, L.C., said, in
Att.-Gen. of Ontario 1'. Mercer,
July 18, 1883, 8 App. Cas. at
p.776; 52 L. J. P. C84; 49L.T.
312; and below, 5 S. C. R. 538,
that the extent of the provincial
power of legislature over “ property
and civil rights in the province”
cannot be ascertained without at the
same time ascertaining the power
and rights of the Dominion under
sees. 91 and 102.
See sec. 109 for full report.
In CITIZENS’ INSURANCE Co. Iv.
PARSONS, 26 Nov. 1881, 7 App.Cas.
96; 51L.J.P.C.11;45 L. T721;
and below, 4 S. C. R. 215, which
was an action for declaration that the
Ontario Act, 39 Vict. c. 24., which
deals with policies of insurance in
force in the province, was ultra vii-es,
the B. N. A. legislation, as ex-
pressed in ﬁrst branch of sec. 91, is
to give to the Dominion Parliament
authority to make laws for the good
government of Canada in all matters
not coming within the. classes of
subjects assigned exclusively to the
provincial legislature. If the 91st
sec. had stopped here, and if the
classes of subjects enumerated in
sec. 92 had been altogether distinct
and diﬁerent from those in sec. 91,
no conﬂict of legislative authority
could have arisen. The provincial
legislatures would have had exclu-
sive power over the sixteen classes
of subjects assigned to them, and
the Dominion Parliament exclusive
power over all other matters re-
lating to the good government of
Canada. But it must have been
foreseen that this sharp and deﬁnite
distinction had not been, and could
not be, attained, and that some of
the classes of subjects assigned to
the provincial legislature unavoid-
ably ran into and were embraced by
some of the enumerated classes of
subjects in sec. 91, hence an endea-
vour appears to have been made to
provide for cases of apparent con-
ﬂict; and it would seem that with
this object it was declared in the
second branch of the 91st sec. ‘ for
greater certainty, but not so as to
restrict the generality of the fore-
going terms of this section,’ that
(notwithstanding anything in the
Act), the exclusive legislative au-
thority of the Parliament of
Canada should extend to all mat-
ters coming within the classes of
subjects enumerated in that section.
With the same object, apparently,
the paragraph at the end of sec. 91
was introduced, though it may be
observed that this paragraph applies
in its grammatical construction only
to No. 16 of sec. 92.”
“Notwithstanding this endeavour
to give pre-eminence to the Domi-
nion Parliament in cases of a con-
ﬂict of powers, it is obvious that in
4.8 B.N.A. ACT, S. 91.—TESTING VALIDITY or ACT.
CITIZENS’ IN-
seamen Co. v.
PARSONS.
VALIN v.
LANGLOIS.
some cases where this apparent
conﬂict exists, the legislature could
not have intended that the powers
exclusively assigned to the provin-
cial legislatures should be absorbed
in those given to the Dominion
Parliament. T akc as one instance
the subject of ‘ Marriage and Di-
vorce,’ contained in the enumera_
tion of subjects in sec. 91. It is evi-
dent that solemnization of marriage
would come within this general
description, yet ‘ solemnization of
marriage in the province’ is enu-
merated among the classes of sub-
jects (sub-sec. 12) in sec. 92, and no
one can doubt, notwithstanding the
general language of sec. 91, sub-sec.
26, that this subject is still within
the exclusive authority of the legis-
latures of the provinces. So ‘the
raising of money by any mode or
system of taxation ’ is enumerated
among the classes of subjects (sub-
sec. 3) in sec. 91 ; but though the
description is sufficiently large and
general to include ‘ direct taxation
within the province, in order to the
raising of a revenue for provincial
purposes,’ assigned to the provin-
cial legislatures by sec. 92 (sub-sec.
2), it obviously could not have been
intended that, in this instance also,
the general power should override
the particular one. With regard to
certain classes of subjects generally
described in sec. 91 , legislative
power may reside, as to some mat-
ters falling within the general des-
cription of these subjects, in the
legislatures of the provinces. In
these cases it is the duty of the
courts to ascertain in what degree
and to what extent authority to
deal with matters falling within
these classes of subjects exist in
each legislature, and to deﬁne in
the particular case before them the
limits of their respective powers.
It could not have been the intention
that a conﬂict should exist; and, in
order to prevent such a result. the
two sections must be read together,
and the language of one interpreted
and, where necessary, modiﬁed by
that of the other. In this way it may,
in most cases, be found possible to
arrive at a reasonable and practical
construction of the language of the
sections, so as to reconcile the re-
spective powers they contain, and
give effect to them all.” “ In per-
forming this difficult duty it will
be a wise course for those on whom
it is thrown to decide each case
which arises as best he can, without
entering more largely upon an in-
terpretation of the statute than is ne-
cessary for the particular question
in hand.” See sub-sec. 13 sec. 92.
Lord Selborne said, in VALIN v.
LANGLOIS, in the Court below,
3 S. C. R. 1, in P. C. Dec. 13,
1879, 5 App. Cas. 115; 49 L. J.
P. C. 37; 41 L. T. 662, that “if
the subject-matter is within the
jurisdiction of the Dominion Par-
liament it is not within the juris—
diction of the provincial Parlia-
ment, and that which is excluded
by the 91st sec. from the jurisdic-
tion of the Dominion Parliament is
not anything else than matters
coming within the classes of sub—
jects assigned exclusively to the
legislatures of the provinces.” That
case decided that the Dominion Act,
37 Vict. c. 10., created a new juris-
diction for the trial of election pe-
titions in delegating to the existing
courts of the different provinces,and
was valid under sec. 41 [which see].
By that section it is enacted that
the old mode of deciding certain
questions was to continue until the
Parliament of Canada should other-
wise provide. Therefore it was
the Parliament of Canada which
was to provide. (Ibz'a’.) .
“ The ﬁrst step to be taken [see
sub-sec. 13, sec. 92, Note] with the
view to test the validity of an Act
of the provincial legislature is to
consider whether the subj cot-matter
of the Act falls within any of the
_ classes of subjects in sub.-sec. 92.
If it does not, then the Act is
of no validity. If it does, then
these further questions may arise,
namely, ‘ whether notwithstanding
that it is so the subject of the Act
B.N.A. ACT, s. 91.-DOM. ACT
DEALING WITH ONE PROV. 419
does not fall within’ one of the
enumerated classes of subjects in
section 91,’ and whether the power
of the provincial legislature is or
is not thereby overborne.” Lord
Watson in Dobie u. The Temporal-
ities Board, in Q. B. Quebec, June
19, 1880, 26 L. C. J. 170; in P. C.
Jan. 21, 1882,7 App. Cas. p. 149;
51 L. J. BC. 26; 46 L. T. 1.
In the Pictcn, Dec. 13, 1879,
4 S. C. R. 648, it was held that
the Dominion Act 40 Vict. c. 21.,
establishing a court of maritine
jurisdiction for the province of
Ontario, was int-m rires the Do-
minion Parliament.
The 40 Vict. c. 21. gave to all
persons the like rights and reme-
dies in all matters (including cases
of contract and tort, and proceedings
in rem and in personam) arising
out of or connected with navigation,
shipping, or trade or commerce
on any river, &c., of which the
whole or part is in the province
of Ontario as such persons would
have in any existing British Vice-
Admiralty Court if the process of
such court extended to the said
province.
Ritchie, C.J., said in that case:
“ ' ‘he B. N. A. Act, sec. 91, gives to
the Dominion Parliament the exclu-
sive legislative authority over these
several subjects, and also power to
establish courts for the better ad-
ministration of the law of Canada.
I have not heard a word which casts
the slightest doubt on the validity
of this Act.”
See, for conditional legislation,
REG. 1*. BURAH, June 5, 1878,13 Ap.
Cas. pp. 889-905 ; \Vheeler’s P. C.
Law, 55. There the Governor-Gem
eral in Council determined, in the due
and ordinary course of legislation, by
Act 22 of 1869 to remove (s. 4) apar-
ticular district from the jurisdiction
of the ordinary courts and oﬂi ces, and
to place it (s. 5) under new courts and
oﬁices to be appointed by, and re-
sponsible to, the Lieutenant-Gover-
nor of Bengal, leaving it to the
Lieutenant-Governor (s. 8) to say at
what time that change shall take
3 2340.
place, and also enabling him, not
to make what laws he pleases for
that or any other district, but to
apply by public notiﬁcation to that
district any law or part of a law
which either always was, or from
time to time might be, in force, by
proper legislative authority. And
by sec. 9 he might extend these pro-
visions to another district.
Donna v.
TEMPORALITIES
oaan.
Lord Selborne, after saying the The Picton.
grounds of the decision of the High
Court was that what the Governor-
General in Council had done was a
delegation of legislative power, “ In
the leading judgment of Markby,
J ., the principles of the doctrine of
agency are relied on; and the
Indian Legislature seems to be
regarded as in effect an agent
or delegate, acting under a man-
date from the Imperial Parliament,
which must in all cases be exercised
directly by itself. Their Lordships
cannot but observe that, if the
principle thus suggested were cor-
rect and justiﬁed the conclusion
drawn from it, they would be un-
able to follow the distinction made
by the majority of the judges be-
tween power conferred upon the
Lieutenant-Governor of Bengal by
the 2nd and that conferred on him
by the 9th section. If by the 9th
section it is left to the Lieutenant-
Governor to determine whether the
Act, or any part of it, shall be
applied to a certain district, by the
2nd section it is also left to him to
determine at what time that Act
shall take effect as law anywhere.
Legislation which does not directly
ﬁx the period for its own com-
mencement, but leaves that to be
done by an external authority, may
with quite as much reason he
called incomplete as that which
does not itself immediately deter-
mine the whole area to which it
is to be applied, but leaves this to
be done by the same external
authority. If it is an act of
legislation on the part of the ex-
ternal authority so trusted to en-
large the area within which a law
actually in operation is to be
D
REG. v. BuRAn.
50.
B.N.A. ACT, s. 91.—DOUBLE LEGISLATION.
REG. 1). BURAH.
Ex parte
PILLOW.
applied, it would seem a fortz'ori
to be an act of legislation to bring
the law originally into operation by
ﬁxing the time for its commence-
ment. But their Lordships are of
opinion that the doctrine of the
majority of the Court is erroneous,
and that it rests on a mistaken
view of the powers of the Indian
Legislature, and, indeed, of the
nature and principles of legislation.
The Indian Legislature has powers
expressly limited by the Act of
the Imperial Parliament which
created it, and it can do nothing
beyond the limits which circum-
scribe these powers. But, when
acting within these limits, it is not
in any sense an agent or delegate
of the Imperial Parliament, but
has, and was vintended to have,
plenary powers of legislation, as
large and of the same nature as
those of Parliament itself.
“ The established courts of jus-
tice, when a question arises whether
the prescribed limits have been ex—
ceeded, must of necessity determine
that question; and the only way in
which they can properly do so is
by looking to the terms of the in-
strument by which, aﬁirmatively,
the legislative powers were created,
and by which, negatively, they are
restricted. If what has been done
is legislation within the general
scope of the aﬁirmative words
which give the power, and if it
violates no express condition or
restriction by which that power is
limited (in which category would,
of course, be included any Act of
the Imperial Parliament at variance
with it), it is not for any court of
justice to inquire further or to
enlarge constructively those condi-
tions and restrictions.” See sec. 41.
DOUBLE LEGISLATION—1t ap-
pears by Hodge 1). Reg, and Par-
sons '0. The Citizens’ Insurance
Co., that there may be Acts both
of the Dominion Parliament and
provincial legislatures dealing with
the same subject-matter. But in
the New Brunswick Act, 40 Vict.,
187 7 , sec. 19, it provided that
no dealer should, inter alia, per-
mit any Indian to drink on the
premises, and a penalty was im-
posed for disobeying this enact-
ment. The Deputy Minister of
Justice referred to the fact that
among the subjects specially re-
served for the exclusive legislation
of the Parliament of Canadais that
of the Indians, and alluded to the
opinion of the Minister of Justice,
20 Oct. 1876, upon the statutes
of the Legislature of Prince Edward
Island, sec. 16, cap. 2., which pro-
vided no liquor should be sold to
any Indian; and pointed out that
these provisions are in direct con-
ﬂict with those of the Dominion
Act of 1876, 39 Vict. c. 18. see. 79.,
both as regards the amount of the
penalty and its disposition, and
that it seemed clear that the local
legislature, either in Prince Edward
Island or elsewhere, legislating on
matters relating to the Indians
could not fail but to cause confu-
sion, and that there ought not to
be double legislation on the sub-
ject. Prov. Leg, 1886, p. 527.
Where similar provisions are
made in a provincial Act as in a
Dominion Parliament Act about
the same date, the Minister of J us~
tice reported that as no public in-
convenience could arise, the pro-
vincial Act might be left to its
operation. These Acts ref(>»rred to
Insolvent Banks, Insurance Com~
panies, Loan Companies, Building
Societies, and Trading Corpora-
tions.
An Act of the Dominion Parlia-
ment (31 Vict. c. 76.) providing
for the taking of evidence in the
provincial court to be used outside
the province is valid. Wetherell
2*. Jones, Sept. 15, 1883, 4 On-
tario B. 713. See sec. 92, sub-
secs. 13, l4, l6.
Torrance, J ., said in em pa-rte
PILLOW, July 5, 1883, 27 L. C.
Jurist, 216: “The power of the
Dominion Parliament to pass a
general law of nuisances as inci-
dent to its right to legislate as to
public wrongs is not incompatible
B.N.A. ACT, s. 91 .—-PROCEDURE IN SANCTIONING ACTS. 51
with a right in the provincial legis-
latures to pass ” a law authorizing
the municipal corporations to pass
bye-laws dealing with nuisances as
incidental to legislation for muni-
cipal institutions.
On the 9th June 1868, the Cana-
dian Privy Council received amemo-
randum from the Minister of Justice
relative to the course to be pursued
with respect to the Acts passed by
the provincial legislatures before
them. The memorandum said:
“The same powers of disallowance
as have always belonged to the
Imperial Government with respect
to the Acts passed by colonial
legislatures have been conferred by
the Union Act on the Government
of Canada. Of late years Her
Majesty’s Government has not, as
a general rule, interfered with the
legislation of the Colonies having
- representative institutions and res-
ponsible government, except in the
cases specially mentioned in the
instruction to the Governors, or in
matters of Imperial and not merely
local interest.
“ Under the present constitution
of Canada, the Governor-General
will be called upon to consider the
propriety of allowance or disallow-
ance of provincial Acts much
more frequently than Her Majes-
ty’s Government has been with
respect to colonial enactments. III
deciding whether any Acts of a
provincial legislature should be
disallowed or sanctioned, the Go-
vernment must not only consider
whether it affects the interests of
the whole Dominion or not, but
also whether it be unconstitutional
—whether it exceeds the jurisdic-
tion conferred on the local legis-
latures—and in cases where the
jurisdiction is convenient, whether
it clashes with the legislation of
the General Parliament.
“ As it is of importance that the
course of local legislation should
be interfered with as little as pos-
sible, and the power of disallow-
ance exercised with great caution,
and only in cases where the law
and the general interests of the Do-
minion imperatively demands it, the
undersigned recommends that the
following course be pursued :—
“ That on receipt by Your Ex-
cellency of the Acts passed in any
province, they be referred to the
Minister of Justice for report,
and that he, with all convenient
speed, do report as to those Acts
which he considers free from objec-
tion of any kind, and if such report
be approved by Your Excellency
in Council, that such approval be
forthwith communicated to the
provincial government.
“That he makes a separate
report, or reports, on those Acts
which he may consider—-
“ (1) As being altogether illegal
or unconstitutional ;
“(2) As illegal or unconstitu-
tional in part;
“ (3) In cases of concurrent
jurisdiction, as clashing with the
legislation of the General Parlia-
ment ;
“(4) As affecting the interests
of the Dominion generally.
“And that in such report, or
reports, he gives his reasons for his
opinions.
“ That where a measure is con-
sidered only partially defective, or
where objectionable as being pre-
judicial to the general interests of
the Dominion, or as clashing with
its legislation, communication
should be had with the provincial
government with respect to such
measure, and that, in such cases,
the Act should not be disallowed,
if the general interests permit such
a course, until the local govern-
ment has an opportunity of con-
sidering and discussing the objec-
tions taken, and the local legisla-
tures have also had an opportunity
of remedying the defects found to
exist.”—-Signed by John A. Mac-
donald.
This recommendation has been,
with one or two exceptions, acted
on. Prov. Leg, 1886, p. 1.
Rules to be
observed in
sanctioning,
&c., provincial
Acts.
n2
52
B.N.A. ACT, s. 91 (2).—LIQUOR: BREWERS.
THE BREwER’s
CASE.
SEvERN v. THE
QUEEN.
Supreme Court
Act, 38 Vict.
e. 11. s. 27.
(1.) The public debt and property.
(2.) The regulation of trade and commerce.1
1 Read with this sub-sec. 3 and
paragraph termination, the sub-
secs. post sub-sec. 29. Also see
American Const. Act, articles 1,
2 and 3, and sub-sec. 9, sec. 92.
In Severn’s case, Jan. 28,
1877, 2 S. C. R. 70, a tax was
required by the 37 Vict. c. 32.
s. 24 [sec Reg. 1). Taylor, p. 55] of
Ontario for dealing in liquors to
be consumed in the province.
The Supreme Court held the law
to be ultra wires, on the ground
that it was in conﬂict with sec. 91,
sub~sec. 2, in that it imposed a
license duty on wholesale sales.
That case was an appeal taken into
the Supreme Court under section
27, Supreme Court Act, 38 Vict.
c. 11., from a judgment of Q. B.
Ontario, overruling a demurrer of
John Severn, brewer, to a criminal
information ﬁled against him by
Att—Gren. of Ontario. Richards,
C.J. : “ I consider under the B. N.
A. Act power to regulate trade and
commerce rests exclusively with the
Dominion Parliament, as also the
right to raise money by the mode
of indirect taxation, except so far
as the same may be expressly given
to the local legislatures. Making it
necessary to take out and pay a
license to sell by wholesale or retail
manufactured liquors, is raising
money by the indirect mode of
taxation.”
Ritchie, J. [who was of opinion
with Strong, J ., that the Legisla-
ture of Ontario had the power to
pass the law in question],said [p. 99
of R]: “I cannot think it was
intended to conﬁne the powers of
the local legislature for the raising
of a revenue for provincial purposes
to licenses of a purely municipal
character, granted, most frequently,
rather with a view to police regula-
tion than for purposes of revenue,
and which, when granted for the lat-
ter object, could hardly be supposed
to be more than adequate for local
and municipal purposes. I think
the power given under sub-sec. 9,
sec. 92, should be construed as
intended to furnish the local
legislatures with the means of
raising a substantial revenue for
provincial purposes from all such
licenses as at the time of con-
federation were granted in the new
Dominion, either by provincial or
municipal authority. The licenses
named are not cjusdem generals‘,
for certainly auctioneer licenses
are not ejusdem genem's with
tavern licenses, nor always granted
by the same authority, for in New
Brunswick, while tavern licenses
were granted by the municipal
authority, auctioneer licenses were
granted by the Lieutenant-Gover-
nor; and so with respect to dis-
tillers an annual license had to be
obtained from the provincial Trea-
surer; so also formerly with re-
spect to hawkers, pedlers, and petty
chapmen, a provincial duty was
imposed, and they were required
to take a license from the Treasurer
of the province [9 & 10 Geo. 4.
c. 27.] ; and again, in New Bruns-
wick, licenses other than those of a
police or municipal character were
granted by municipal authority as
licenses for the sale of liquors by
wholesale, no person being allowed
to sell any liquors by wholesale
without license, which liquors the
statute declared inter alz'a to be
ale, porter, strong beer, or any
other fermented or intoxicating
liquor. From this brewers were
not exempt, there being no exemp-
tion in their favour. [His Lord-
ship read sec. 3 of 6 Vict. c. 35.
(New Brunswick).] Therefore I
know the rule uoscz'tur a socz'z's
cannot apply in this case. It is
said this construction conﬂicts with
the power of the Dominion Govern-
ment to regulate trade and com-
B.N.A. ACT, s. 91 (2).—DIRECT TAXATION BY DOMINION. 53
merce and the raising of money by
any mode or system of taxation.
All I can say in answer to that is,
so far, and so far only, as the
raising of a revenue for provincial,
municipal, and local purposes is
concerned, the B. N. A. Act, in
my opinion, gives to the local
legislatures not an inconsistent, but
a concurrent power of taxation, and
I fail to see any necessary conﬂict;
certainly no other or greater than
would necessarily arise from the
exercise of the power of direct
taxation and the granting of shop
and auctioneer licenses specially
vested in the local legislatures. It
cannot be doubted, I apprehend,
that both the local legislatures
and the Dominion Parliament may
raise a revenue by direct taxation,
and, if so, why may not both raise
a revenue by means of licenses?
There need be no more conﬂict
in the one case than in the other.
The granting of shop and auc-
tioneer licenses necessarily inter-
feres with trade and commerce, the
former with retail trade, the latter
with both wholesale and retail
trade; for in large business cen-
tres, auctioneers’ sales on a whole-
sale scale are of daily occurrence.
Should at any time the burden
imposed by, the local legislature,
under this power, in fact conﬂict
injuriously with the Dominion
power to regulate trade and com—
merce, or with the Dominion power
to raise money by any mode or
system of taxation, the power vested
in the Governor-General of dis-
allowing any such legislation prac-
tically affords the means by which
serious diﬂiculty may be prevented.
But I do not think we have any
right to suppose for a moment that
the local legislature would legis-
late save for the legitimate purpose
of raising a revenue, and not so as
to interfere unnecessarily or in-
juriously with the legislation of the
Dominion Parliament, still less so
as to destroy the very business from
which the revenue is derived. I
think the construction I have in-
dicated of the words ‘ other licenses ’
[see sub-sec. 9, sec. 92] is not
only in accordance with the literal
interpretation of the language, but
is consistent with the policy and
purview of the statute, which,
in my opinion, was to give to the
local legislatures the rights and
power, in addition to direct taxa-
tion, to raise a substantial revenue
for provincial, as well as for munici-
pal, purposes, by means of licenses
such as were and might have been
granted at the time of confedera-
tion by the several provincial
governments and municipal author-
ities, and is not conﬁned to licenses
which are of a purely municipal
character, and from which I do not
think a brewer is any more exempt
than a shopkeeper or auctioneer.
He could not sell by wholesale in
New Brunswick at the time of
confederation without a license,
and I do not think he can do so
now in Ontario. It may be right
for me to say that it is only under
the words ‘ and other licenses,’ and
solely in order to the raising of a
revenue for the purposes named in
sub-sec. 9, sec. 92, that in my
opinion the local legislatures have
the right of imposing this burden or
tax on brewers.” Taschereau
[after diﬁiculty], Fournier, and
Henry [but see his opinion post,
sub-sec. 9., sec. 92, Att.-Gen. On-
tario 'v. Att.-Gen. Canada, that he
was wrong], J J ., were of opinion
the Act was ultra rtires, Fournier
for the reasons that (1) because it
comes in conﬂict with the power of
the Federal Government to regulate
trade and commerce; (2) because
the terms “ and other licenses ” in
sub-sec. 9, sec. 92, are limited by
the interpretation given to sub-
sec. 2, sec. 91. In order to con-
ciliate these two provisions the
words “other license” must be
read as if they were followed
by these words—“ not incom-
patible with the power of regulat-
ing trade and commerce; (3) be-
cause the tax imposed was an in-
direct tax, which the local govern-
Brewers must
have a license
in New Bruns-
wick.
54 B.N.A. ACT, s. 91 (2).-RESTBICTION OF sEC. 91.
SEVERN v. THE
QUEEN.
BANK OF
TORONTO v .
LAMBE.
CITIzENs’
INSURANCE Co.
'0. PARSONS.
ment has no right to impose;
(4) because it comes in direct
conﬂict with 31 Vict. c. 8. (Dom.
Act), relating to excise.” Henry,
J. : From a review of all the cases
Cited and others, he was obliged to
conclude that the words “ and other
licenses ” must be restricted ejus~
dem generz's, p. of R138. “Every
constituent of trade and commerce,
and the subject of indirect taxation,
is withdrawn from the consideration
of the local legislatures, even if it
should otherwise be apparently in-
cluded. The Imperial Act fences
in those 28 subjects [sec 91]
wholesale and in detail, and the
local legislatures were intended to
be, and are, kept out of the inclosure,
and where authorised to deal with
the subject of ‘ direct taxation ’
within the province, as, in sub—
secs. 2 and 9, sec. 92, they are
commanded by the concluding
words of sub-sec. 29, sec. 91, not
to interfere by measures, for what
they may call ‘ direct taxation,’ or in
regard at least to ‘ other licenses ’
or in reference to ‘municipal in-
stitutions,’ with the prerogative of
the Dominion Parliament as to the
‘regulation of trade and (30111-
merce,’ including ‘customs and
excise laws,’ and ‘the raising
of money by any mode or system
of taxation.’ The exercise of the
power contended for by the Legis~
lature of Ontario is incompatible
with the full exercise of that of
the Dominion Parliament, and
might be used to its total destruc-
tion. The Object of the Imperial
Act was clearly to give plenary
powers of legislation to the DO-
minion Parliament with the excep-
tion before stated, and just as
clearly to restrict local legislation
so as to prevent any conﬂict with
that of the former in regard to the
subject with which it was given
power to deal.” “The ‘excise
laws’ of the Dominion must be
affected by an additional license fee
being exacted by the local govern-
ment. The ‘excise’ revenue be-
longs solely to the Dominion
Government. The Dominion Par-
liament having imposed a license
fee of 3550 on a brewer of fer-
mented liquors, might at an early
date desire to impose, for revenue,
a higher fee. It has the ac-
knowledged right to do so; but
in the meantime the local legis-
lature has fully weighted the enter-
prise of brewing; and the result
becomes, therefore, a transfer from
the resources of the Dominion
revenue to the coffers of the local
government. WVho can say, then,
there is not an attempt to collect
provincial revenues from a source
clearly appertaining to the DO-
minion ? ” His Lordship then said,
from a review of all the cases, he
concluded the words “and other
licenses” in sub-sec. 9, sec. 92,
must be restricted ejusdem generz's.
[See Taylor 1'. Reg, post, p. 55.]
Severn’s case was explained in
BANK OF TORONTO "c. LAMBE, in
Q. 13., Quebec, 23 Jan. 1885, 29
L. C. J. 77; 1 Mon. Q. B. 122; in
P. C. July 9, 1887, 12 App. Cas.
pp. 575, 586; 56 L. J. P. C. 87;
57 L. T. 377 [see sub-sec. 13of sec.
92]. In that case the Judicial Com-
mittee decided that a province Could
impose direct taxation on commer-
cial corporations carrying on their
business in the province. Lord
Hobhouse said: “ Since the Severn
case was decided the question has
been more completely sifted.”
His Lordship said: “ The words
‘ regulation of trade and commerce ’
are indeed very wide, and in
Severn’s case [ibz'd] it was the
view of the Supreme Court that
they operated to invalidate the
license duty which was there in
question. But since that case was
decided the question has been
. more completely sifted before the
Committee in Citizens’ Insurance
Co. 1). Parsons [in Courts below,
43U.C.Q.B.261; 4 O. A. R. 96;
4 S. C. R. 215; in P. C. Nov.
26, 1881, 7 App. Cas. pp. 96,
108; 51 L. J. P. C. 11; 45 L. T.
721; post, sub-sec. 13], and it was
B.N.A. ACT, s. 91 (2).-“ TRADE AND COMMERCE.” 55
found absolutely necessary that the
literal meaning of the words should
be restricted in order to afford
scope for powers which are given
exclusively to the provincial legis-
tures. It was there thrown out
that the power of regulation given
to the Parliament meant some
general or inter-provincial regula-
tions. No further attempt to de-
ﬁne the subject need now be made,
because their Lordships are clearly
of opinion that if they were to
hold that the power of regulation
prohibited any provincial taxation
on the persons or things regulated,
so far from restricting the expres-
sions, as was found necessary in
Citizens’ Insurance Co. '0 Parsons
[ﬁnd], they would be straining
them to their widest conceivable
extent.”
In Citizens’ Insurance Co. 1*.
Parsons, the Ontario Act, 39 Vict.
c. 24., R. S. O. c. 167. s. 8,
provided that the Insurance Co.
were not to be liable for damage
by ﬁre if there was an exist-
ing prior insurance, unless it
was disclosed to the Insurance
Co. This was held valid. There
existed a Dominion Parliament
Act, 38 Vict. c. 20., requiring all
insurance companies to obtain a
license. The Insurance Co. in
question had its head office in
Montreal [see for this case, “ Civil
Rights,” sec. 92, sub-sec. 13]. It
may be noted here that in Parson’s
case, Sir Montague E. Smith, in
delivering judgment, said: “Con-
struing the words ‘ regulation of
trade and commerce ’ by the vari-
ous aids to their interpretation
above suggested, they would in-
clude political arrangements in re-
gard to trade requiring the sanc-
tion of Parliament, regulation of
trade in matters of inter-provincial
concern, and it may be that they
would include general regulation
of trade affecting the whole Domi-
nion. Their Lordships abstain on
the present occasion from any at-
tempt to deﬁne the limits of the
authority of the Dominion Parlia—
ment in this direction. It is
enough for the decision of the
present case to say that, in their
view, its authority to legislate for
the regulation of trade and com-
merce does not comprehend the
power to regulate by legislation
the contracts of a particular busi-
ness or trade, such as the business
of a ﬁre insurance in a single pro-
vince, and therefore that its legis-
lative authority does not, in the
present case, conﬂict or compete
with the power over property and
civil rights assigned to the legisla-
ture of Ontario by sub-sec. 13,
sec. 92.” Compare with that case
Att.-Gren. for Quebec 2). The Queen
Insurance Co., in Q. B. Quebec,
Dec. 14, 187 7,'afﬁrming Supt. Ct.,
21 L. C. J. 77; in P. C. July 5,
1878, 3 App. Cas. 1090; 38 L. T.
897. It was held that the Quebec
Act, 39 Vict. c. 7., was ultra "vires.
This Quebec Act enacted that
every assurer [except marine]
should be bound to take out a
license. By sec. 2 the price of the
license was to be an adhesive
stamp afﬁxed to the policy or re-
ceipt or renewal; in case of ﬁre,
3 per cent., and 1 per cent. for other
assurances, on the premiums paid.
See post, p. 126, Severn’s case
[ p. 52], which was in reality an ap-
peal from Reg. 1). Taylor. That
case the Supreme Court refused to
decide, inasmuch as it was prior to
the institution of the Supreme
Court, 1 S. C. R. 65, 38 Vict.
(Dom.) c. 11. s. 26.
In REG. 1;. TAYLOR, 25 Sept.
1875, Queen’s Bench, App.
Side, 36 U. C. Q. B. 218, it
was held that the restriction im-
posed by the Ontario Act, 37 Vict.
c. 32., on brewers not to sell by
retail as deﬁned by that Act was
not ultra wires, it being a mere
repetition and renewal of the legis-
lation which was in force in On-
tario before and at the time of the
Confederation. Secs. 4 and 21 of
the statute in question showed
what wholesale was. Secs. 24, 26,
ATT.-G'EN.
QUEBEC v. THE
QUEEN
INSURANCE Co.
REG. 0. TAYLOR.
56 B.N.A. ACT, s. 91 (2).—“ EXCLUSIVE AUTHORITY.”
REG. v. TAYLOR.
prohibit the sale of liquor without
a license ﬁrst obtained under the
Act, which covers the sale by a
brewer of his own manufacture.
The fee for the license, sec. 22,
was 3550 for selling by wholesale.
Sec. 35 imposes the penalties for
selling without such license. Sec.
53, burden of proving license rests
on the party prosecuted. The
defendant was a brewer of St.
Catherine’s, licensed by the Domi—
nion Government for the manufac-
ture of spirituous and other liquors,
and sold by wholesale beer for con-
sumption within the province of
Ontario, without ﬁrst obtaining a
license as required by the On-
tario Act, 1874, 37 Vict. c. 32,
an Act expressly imposing the
license on a brewer under provin-
cial authority. The clause said to
be contravened was sec. 24: “No
person shall sell by wholesale or
retail any spirituous, fermented, or
other manufactured liquors within
the province of Ontario, without
having ﬁrst obtained a license un-
der this Act authorizing him so to
do : provided that this section shall
not apply to sales under legal pro-
cess, 850.” Sec. 21 included brewers
and distillers. Sec. 22 for license
by wholesale a duty of $50. All
duties under this section are for
provincial revenue. Sec. 4, a
license by wholesale was a license
for selling by wholesale only in
places other than inns, &c., in
quantities ﬁve gallons in each cask,
and where bottled not less than one
dozen bottles, of at least three half-
pints each, at any one time [see
sec. 12, sub-sec. 3, Temperance
Act, [864]. Sec. 35 subjects any
person selling such liquors without
a license for ﬁrst oﬁence to a
penalty of not less than $20; for
the second offence imprisonment in
the county gaol with hard labour for
not exceeding three months ; for the
third offence to imprisonment with
hard labour for not less than one or
more than three months.
Sept. 25, 1875, Draper, C.J.:
“ The power to make laws which
is conferred by the ﬁrst part of this
section 91] on Her Majesty and
the Senate and the House of Com-
mons for the peace, order, and good
government of Canada is (substi-
tuting ‘ welfare ’ for ‘ order ’) a re-
petition of the language used in the
12 sec. of 14 Geo. 3. c. 83., and
again in secs. land2 of 31 Geo. 3.
c. 31. But for greater certainty——
not to restrict what had just been '
conferred—it is declared that (not-
withstanding this Act) the emolu-
sive legislative authority of the
Parliament of Canada extends to
all matters coming within the
classes of enumerated subjects
thereinafter set. forth. Exclusive
of what? Surely not of the sub-
ordinate provincial legislatures,
whose powers had yet to be con-
ferred, and who would have no
absolute power until they were in
some form deﬁned and granted.
Would not this declaration seem
rather intended as a more deﬁnite
or extended renunciation 011 the
part of the Parliament of Great
Britain of its powers over the i11-
ternal affairs of the new Dominion
than was contained in the Imperial
statute, 18 Geo. 3. c. 12., and the
28 8t 29 Vict. c. 63. ss. 3, 4, 5?
In somewhat different terms, by
sec. 92 the legislature of each
province has powers conferred upon
it to ‘ exclusively make laws in
relation to matters coming within
the classes of subjects . . . enu-
merated ’ in that section. Now it
appears to me that sec. 91 does
mention some classes of subjects as
belonging to the ‘exclusive legis-
lative authority ’ of the Parliament
of the Dominion, which in part at
least form part of matters coming
within some class or classes of sub-
jects enumerated in sec. 92. For
example, the second class of subjects
mentioned in sec. 91 is ‘ the regu-
lation of trade and commerce ’ (two
words which, in their present loca-
tion, appear to me to be almost, if
not entirely, synonymous); and
next, ‘ the raising of money by any
mode or system of taxation; while
B.N.A. ACT, s. 91 (2) .--MEANIN e or “OTHER LICENSES.” 57
in sec. 92 we ﬁnd in the enumera-
tion of classes of subjects within
the ‘ exclusive powers of provincial
legislatures,’ ‘ direct taxation
within the province in order to the
raising of a revenue for provincial
purposes ’; and ‘shop, saloon,
tavern, auctioneer, and other
licenses, in order to the raising of
a revenue for provincial, local, or
municipal purposes,’ and ‘pro-
perty and civil rights in the pro-
vince.’ Now it will, in my opinion,
be ditiicult to maintain that the
regulation of trade and commerce
even alone, and a multofortiori in
conjunction with a power to raise
money by any mode or system of
taxation, if ea'clusirely vested in
the Dominion, are not at variance
with powers in the provincial legis-
latures exclusively to make laws
respecting shop, saloon, tavern,
auctioneer, and other licenses, in
order to raise a revenue for provin-
cial and other purposes, and to re-
sort to direct taxation for provincial
purposes. As to direct taxation,
while there is some difference of
expression in deﬁning it, the dif-
ference appears to me to be more
verbal than substantial. [His
Lordship cited Encyc. Brit., title
“ Taxation.”] I11 England the
rates of duties on licenses are in-
cluded under the head ‘ Excise.’ I
entertain no doubt that a duty to
be paid for a license to brew or to
sell beer by wholesale is an indirect
tax. But it is further contended
that the words ‘ shop, saloon,
tavern, auctioneer, and other
licenses,’ do not include a license
to a brewer to brew beer, or to sell
the same by wholesale, and there-
fore the Ontario Legislature could
not lawfully pass an Act to compel
a brewer to take out such a license ;
that the words ‘ other license ’ are
limited by the preceding words, and
that the maxim noscitur a sociis
must be applied. This objection
is founded on the rule that ‘ a
general word following speciﬁc
words must be taken to mean some-
thing of the same kind ’; or, as is
elsewhere stated, ‘when a word of REG-"TAYLOR-
wide signiﬁcation follows others less
wide, it must be interpreted as
having a meaning bringing it with-
in the same class as those others.’
Read a. Ingram, 3 E. & B.
p. 901. Therefore ‘ other licenses ’
means licenses of the same charac-
ter as those just previously men-
tioned, namely, shop, tavern, and
auctioneer, which are licenses to
carry on a particular business, or
to exercise a particular vocation;
and it is urged that the licenses
thus speciﬁed are commonly men—
tioned with, and seem to have an
affinity to, those licenses which are
chieﬂy contained in the Municipal
Act, as for example, licenses on
billiard tables, ordinary houses
where fruit, &c., are sold, huck-
sters and pedlers, &c. The affinity
in some of these cases seems to me
rather remote, and the objections
appear to me to be answered by the
consideration of the object, ‘ raising
a revenue for provincial as well
as for local or municipal pur-
poses.’ With the sincerest respect
for the learned judge [Wilson,
J who has put forward this
objection, I cannot yield to it. I
think we should not look out of
the Imperial Act for the socii
whose character is to affix a mean-
ing on ‘ other licenses ’ ; and grant-
ing that the four named occupa-
tions have got into low company in
the Ontario Municipal Act, they
are lifted out of it in sec. 92. To
be serious, I do not ﬁnd in the
objection, or the illustration of it,
any sufficient ground for holding
that the license to a brewer, as
provided for in the Ontario Act, is
not within the words ‘other
licenses,’ as used in the Imperial
Act. It is quite true that the
business of a brewer has been gene-
rally, perhaps always, dealt with as
a matter of excise, but I do not see
the inconvenience, though there is
incongruity between the two pro-
visions, nor that there will any
diﬂiculty arise in the brewer’s busi-
ness, or his relations with the
58 B.N.A. ACT, s. 91 (2).—LICENSES BY DOM. AND PROVS.
REG. 2). TAYLOR.
officers of excise, by his being’ re-
quired to take out this provincial
license. We must, however, con-
sider what is the effect of the appa-
rent interference or inconsistency
between secs. 91 and 92. [His
Lordship cited Dwarris, p. 513.]
I may here properly apply the lan—
guage of Best, C.J., in Churchill
c. Crease, 5 Bing, p. 180, and say
I should have thought the language
of sec. 91, ‘ the regulation of trade
and commerce,’ ‘ conclusive, if there
had been no conﬂicting intention
to be collected from the Act; but
the rule is that where a general in-
tention is expressed, and the Act
expresses also a particular intention
incompatible with the general inten
tion, the particular intention is to
be considered in the nature of an
exception.’ This appears to me to
settle any question as to inconsis-
tency between the two sections, and
to leave the whole question to turn
upon the effect of the words ‘ other
licenses.’ Upon this I have already
expressed my opinion. Assuming
this conclusion to be correct in both
respects, there is no ground for
holding the Act of Ontario, 37
Vict. c. 32., to be ultra wires ; and
whether it touches several or only
one of the classes of subjects enu-
merated in sec. 91, it does not go
beyond the exceptions contained in
sec. 92, and if so, there should be
judgment against defendant on the
demurrer. And this makes it un-
necessary to consider and Observe
upon the American cases that were
referred to in the judgment deli-
vered in the Court below [Brown
v. State Maryland, 12 S. C. B.
U. S. (12 Wheat), 419; the
License Cases, 46 S. C. B. U. S.
(5 How), 504—Prohibition of
sales, except in large quantities.
Held did not interfere with power
of Congress to regulate commerce
because acted wholly on the traffic
within the States borders. Almy
ru. State California, 65 S. C. B.
U. S. (24 How.), 169—Bequire-
ment of a stamp on bills of lading
on the export of gold was held to
be a regulation of trade a State
Could not legislate on], because they
do not touch the points on which I
rest my decision as being sustained
by English authority. I cannot
forbear adding that I see no inevit-
able inconvenience to arise from
each government possessing the
power of granting a license in this
matter. It might certainly be said
that the Legislature of Ontario
might make an injurious use of it,
as by imposing a tax for the license
unreasonable in amount, which
would prevent the exercise of the
trade ; but I cannot believe that the
most zealous advocate of prohibition
as to spirituous or fermented liquors
would prevail 011 the Assembly to
pass such a law, and if it happened
otherwise, the power of disallow-
ance is ample to prevent such an
interference with the policy of
the Dominion Government. This
power would prevent any mischief
from hasty or unwise legislation,
which could not well be justiﬁedias
actuated by a desire to ‘ raise a
revenue for either provincial, local,
or municipal purposes.’ ”
Queen’s Bench reversed, and
judgment on demurrer entered for
the Crown.
Strong, J ., concurred. “ I only
desire to add that I am of opinion
that a license which would amount
to a prohibition would be an undue
interference with the exclusive
powers of the Dominion as to trade
and commerce, as has been in effect
lately decided by the S. C. of New
Brunswick.” [See next case]
In REG. 1:. J UsTICEs OF KINe’s
COUNTY, February 1875, Bit-
chie, C.J., 2 Pugs. pp. 535-539:
“This was an application for a
mandamus to the justices to com-
pel them to grant a tavern license
to one M. McManus. Application
had been made by McManus to the
sessions for a license in February
1874, and the usual fee tendered.
The sessions refused to grant a
license, alleging as a reason that
they did not intend to grant any
B.N.A.A(3T,s.91. (2)—-PROHIBN. or ALL LIQ. TRAFFIC. 59
any mode or system of taxation if REG. 1'. Jus-
the local legislature of the province, TICES 0F KING’S
into which the article was so legally CWNTY-
license to sell spirituous liquors for
that year. McManus was shortly
after ﬁned for selling without a
license. In showing cause against
the application, it was objected (1)
that the power given to the, Parlia-
ment of Canada by the B. N. A.
Act, 1867, sec. 91, sub-sec. 2,
meant trade and commerce with
foreign countries, and that the
power to make laws respecting
tavern licenses belonged exclusively
to the provincial legislatures by sec.
92; (2) that by the Act of Assembly,
36 Vict. c. 10. s. 2, it was entirely
in the discretion of sessions whether
they granted licenses or not; that
it was an arbitrary discretion, which
could not be questioned. To the
Dominion of Canada is given the
power to legislate on the ‘ regulation
of trade and commerce,’ and the
power of ‘raising money by any
mode or system of taxation.’ The
regulation of trade and commerce
must involve full power over the
matter to be regulated, and must
necessarily exclude the interference
of all other bodies that would at-
tempt to intermeddle with the
same thing. The power thus given
to the Dominion Parliament is
general, without limitation or re-
striction, and therefore must in-
clude traﬂic in articles of merchan-
dise, not only in connection with
foreign countries, but also that
which is internal between diﬂ'e-
rent provinces of the Dominion
as well as that which is carried 011
within the limits of an individual
province. As a matter of trade
and commerce, the right to sell is
inseparably connected with the law
permitting importation. If, then,
the Dominion Parliament authorize
the importation of any article of
merchandise into the Dominion,
and places no restriction on its
being dealt with in the due course
of trade and commerce, or on its
consumption, but exacts and re-
ceives duties thereon on such im-
portation, it would be in direct
conﬂict with such legislation, and
with such right to raise money by
imported, and on which a revenue
was sought to be raised, could so
legislate as to prohibit its being
bought and sold and to prevent
trade or tratlic therein, and thus
destroy its commercial value and
with it all trade and commerce in
the article so prohibited, and thus
render it practically valueless an
article of commerce on which a
revenue could be levied. Again,
how can the local legislature pro-
hibit or authorize the sessions to
prohibit (by arbitrarily refusing to
grant any licenses) the sale of
spirituous liquors of all kinds with-
out coming into direct conﬂict with
the Dominion Legislature on the
subject of Inland Revenue, involv-
ing the right of manufacturing and
distilling, or making of spirits, &c.,
as regulated by the Act, 31 Vict.
c. 8., and the subsequent Acts in
amendment thereof, and the excise
duties leviable thereby, and the
licenses authorized to be granted
thereunder P Cases from the United
States courts were cited as hearing
on this question ; but there is a
very clear distinction between the
powers of Congress and the powers
of the Dominion Parliament. In
the United States, Congress has
not the same full power of regu-
lating trade and commerce that
belongs to the Dominion Parlia-
ment. The powers of Congress, as
we understand it, is conﬁned to
‘ regulating commerce with foreign
nations and among the several
States,’ giving no right to interfere
with the internal commerce of an
individual State that it does not
extend to that commerce which was
completely internal, carried on
within the particular State, and
which did not extend to, or affect,
other States, but is restricted to
that commerce which concerns
more States than one, reserving
the completely internal commerce
of a State for the State itself, and,
therefore, State license laws have
60 B.N.A. ACT, s. 91 (2).—CONTRAST DOMINION AND Us.
REG. v. J us-
TICES or Kmc’s
CoUNrY.
been held constitutional and valid.
But even there, as we understand
the cases, it has been held that the
sale of imported liquors by the im-
porter in the original casks would
seem not to be aﬁected, but when
the importer parts with the goods
imported, and changes their con.-
dition, his rights, and all rights
respecting the sale claimed under
the laws of the United States, are
gone; that is, so soon as they be-
come mixed with, or incorporated
into, the general mass of the pro-
perty of the State, they become
subject and liable to State legisla-
tion. Under the B. N. A Act,
1867, the local legislatures have no
powers except those expressly given
to them, and with respect to the
granting of licenses affecting trade
they are expressly conﬁned to ‘shop,
saloon, tavern, auctioneer, and other
licenses, in order to the raising of
a revenue for provincial, local, or
municipal purposes,’ a provision
under which a revenue may be
derived from the sale and traﬁ‘ic,
but which the prohibition of the
sale or trafﬁc would entirely des-
troy, and which would be in direct
antagonism with the privilege
thereby conceded. We by no
means wish to be understood that
the local legislatures have not the
power of making such regulations
for the government of saloons,
licensed taverns, &c., and the sale
of spirituous liquors in public
places, as would tend to the preser-
vation of good order, and pre-
venting of disorderly conduct,
rioting, or breaches of the peace.
In such cases, and possibly others
of a similar character, the regula-
tions would have nothing to do with
trade or commerce, but with good
order and local government, mat-
ters of municipal police and not of
commerce, and which municipal
institutions are peculiarly com-
petent to manage and regulate;
but if, outside of this, and beyond
the granting of licenses before re-
ferred to, in order to raise a revenue
for the purposes mentioned, the
legislature undertakes, directly or
indirectly, to prohibit the manufac-
ture or sale, or limit the use of any
article of trade or commerce,
whether it be spirituous liquors,
ﬂour, or other articles of merchan-
dise, so as actually and absolutely
to interfere with the traffic in such
articles, and thereby prevent trade
and commerce being carried on
with respect to them, we are clearly
of opinion they assume to exercise
a legislative power which pertains
exclusively to the Parliament of
Canada” [but see Dominion 1*.
Four Provinces, the Liquor Li-
cense Acts, 1883-4, before P. C.
in 1885; post, Note, sec. 92, sub-
sec. 9], “and in our opinion the
Act of the local legislature [34 Vict.
c. 6.] declaring that ‘no license
for the sale of spirituous liquors
shall be granted or issued within
any parish or municipality in the
province, when a majority of the
ratepayers resident in such parish
or municipality shall petition the
sessions or municipal council
against issuing any license within
such parish or municipality,’ is ultra
circa the local legislature of this
province.”—Rule absolute for man-
damus.
The case of the City of Frederic-
ton was a case upon the same Act,
The Canada Temperance Act, 187 8,
as in Russell 1). Reg. [see below],
and was in Ct. N. B. 1879 [Allen,
C .J .,Weldon, Fisher,Wetmore, J J .,
and Palmer, J ., dissenting], .3 S. C.
N. B. 139, and in S. Ct. of Canada
April 13, 1880, 3 S. C. R. 505.
In S. Ct. Canada it was held, rever-
sing, that under sub-sec. 2, sec. 91 ,
the Parliament of Canada alone has
the power of prohibiting the traﬂic
in intoxicating liquors in the Do-
minion or any part of it, and the
Court has no right whatever to
enquire what motive induced Par-
liament to exercise its powers.
Ritchie, C.J.: “ Much has been
said as to the analogy of the Do-
minion Parliament and local legis-
latures with the Congress of the
Federal Government and the State
B.N.A. ACT, 3. 91 (2).—DOM. PROHIBITING IMPORTS. 61
legislatures of the United States. B. N. A. Act, and in this respect CITY OF
But the constitution of the United
States and the constitution of the
States as regards the powers which
each may exercise are so different
from the relative powers of the
Dominion Parliament and the pro-
vincial legislatures, that the cases
to be found in the American books
with regard to the State legis-
latures in regard to prohibiting
the sale of intoxicating liquors
aﬁord no guide whatever in the
determination of the powers of the
local legislatures and the Dominion
of Canada. The Government of
the United States is one of enu-
Imerated powers, and the govern—
ments of the States possess all the
general powers of legislation. Here
we have the exact opposite. The
powers of the provincial govern-
ments are enumerated, and the
Dominion Government possesses
the general powers of legislation.
Therefore we are told by Mr.
Cooley, Cons. Lim. 173, that ‘ when
a law of Congress is assailed as
void we look in the National Con-
stitution to see if the grant of
speciﬁed powers is broad enough
to embrace it, but when a State
law is attacked on the same ground,
it is presumably valid in any case,
and this presumption is a con-
clusive one, unless in the Constitu-
tion of the United States, or of the
State, we are able to discover’that
it is prohibited. We look in the
Constitution of the United States
for grants of legislative power, but
in the Constitution of the State to
ascertain if any limitations have
been imposed upon the complete
power with which the legislative
department of the State was vested
in its creation. Congress can pass
no laws but such as the Constitution
authorizes, either expressly or by
clear implication, while the State
legislature has jurisdiction of all
subjects in which its legislature is
not prohibited.’
“ With us the government of the
provinces is one of enumerated
powers, which are speciﬁed in the
diifers from the Constitution of the
Dominion Parliament, which, as
has been stated, is authorized ‘ to
make laws for the peace, order, and
good government of Canada in re—
lation to all matters not coming
within the classes of subjects by
the Act assigned exclusively to the
legislatures of the provinces ’ ; and
that ‘ any matter coming within
any of the classes of subjects
enumerated shall not be deemed to
come within the class of matters
of a local or private nature com-
prised in the enumeration of the
classes of subjects assigned ex-
clusively to the legislatures of the
provinces.’ Therefore ‘ the regu-
lation of trade and commerce ’
being one of the classes of sub-
jects enumerated in sec. 91, is not
to be deemed to come within any
of the classes of a local or private
nature assigned to the legislatures
of the provinces. To my mind it
seems very clear that the general
jurisdiction or sovereignty which
is thus conferred emphatically
negatives the idea that there is not
within the Dominion Legislature
power or authority to deal with the
question of prohibition in respect
to the sale or traffic in intoxicating
liquors or any other article of trade
or commerce. It is said a power
to regulate does not include a
power to prohibit. Apart from the
general legislative power which I
think belongs to the Dominion
Parliament, I do not entertain the
slightest doubt that the power to
prohibit is within the power to
regulate. It would be strange in-
deed that, having the sole legis-
lative power over trade and com-
merce, the Dominion Parliament
could not prohibit the importation
or exportation of any article of
trade or commerce, or, having that
power, could not prohibit the sale
and tratﬁc if they deemed such prohi-
bition conducive to the peace, order,
and good government of Canada.
There seems to be no doubt on
this point in .the United States.
FREnERIc'roN 2:.
THE QUEEN.
62 B.N.A. ACT, 8. 91 (2).-~LIQUOR LAWS.
RUSSELL v.
THE QUEEN.
Story, Con. U. S., see. 1076, on the
Constitution of the United States,
with reference to- the regulation of
foreign commerce, which belongs to
the National Government the
regulation of both foreign and in-
ternal trade and commerce does to
the Dominion Government) says:
‘ The commercial system of the
United States has also been em-
ployed for the purpose of revenue;
sometimes for the purpose of pro-
hibition, sometimes for the purpose
of retaliation and commercial reci-
procity ; sometimes to lay embar-
goes; sometimes to encourage
domestic navigation and the ship-
ping and mercantile interests by
bounties, by discriminating duties
and by special preferences and
privileges, and sometimes to regu-
late intercourse with a view to
mere political objects, such as to
repel aggressions, increase the pres-
sure of war, or vindicate the rights
of neutral sovereignty.’ So in the
case of the United States a. Halli-
day, 45 S. C. U. S. (3 Wall.) 407,
in reference to the rights of Con-
gress under its power to regulate
commerce with the Indian tribes,
and with the individual members of
such tribes, the Supreme Court
of the United States held that that
power extended to the regulation
of commerce with the Indian tribes,
though the traffic and the Indian
with whom it was carried on were
wholly within the territorial limit
of the State. The Act made it
penal to sell spirituous liquors to an
Indian under charge of an Indian
agent, although it was sold outside
an Indian reserve and within the
limits of a State. The Court held
the Act constitutional and based
upon the power of Congress
to regulate commerce with the
Indians.”
The provincial legislatures have
full power under the class of sub-
secs. in sec. 92 to delegate to Com-
missioners to make regulations for
the retail sale of liquor, and to pre-
vent the playing of any game in
taverns during prohibited hours,
and to punish for any infraction of
their rules; and the Commis-
sioners can make rules and desig-
nate penalties, including imprison-
ment with hard labour, if their
ﬁnes are not paid or cannot be
paid through insufficient distress.
See Russell 2). The Queen, Su-
preme Court of New Brunswick,
1881; in P. C. June 23, 1882,
7 App. Cas. 829; 51 L. J. P. C.
77; 46 L. T. 889. This case fol-
lowed the case of The City of
Fredericton, 3 S. C. B. 505; and
itself was followed by Hodge v.
The Queen, in Ct. App., Ontario,
June 30, 1882, 7 O. A. It. 247
[Spragga C.J., Burton, Patterson,
and Morrison J J .A.] ; in P. C.
Dec. 15, 1883, 9 App. Cas. 117;
53 L. J. P. C. 1; 50 L. T. 301.
In Bussell’s case the question
was whether it was competent to
the Dominion Parliament under
its general powers to make laws
for the peace, Order, and good go-
vernment of the Dominion, to pass
the Canadian Temperance Act,
187 8, which was intended to be
applicable to the several provinces
of the Dominion, or to such parts
of the provinces as should locally
adopt it. It was not doubted that
the Dominion Parliament had such
authority under sec. 91, unless the
subject fell within some one or
more of the classes of subjects
which by sec. 92 were assigned
exclusively to the legislatures of
the provinces. It was contended it
came under sub-sec. 13 of sec. 92.
Sir Montague Smith, who de-
livered the judgment, said (7 App.
Cas. 839): “Laws of this nature
(such as make it a criminal offence
to set ﬁre to a house, to overwork
a horse, or exposing diseased
cattle), designed for the promotion
of public order, safety, or morals,
and which subject those who con-
travene them to criminal procedure
and punishment, belong to the sub—
ject of public wrongs rather than
to that of civil rights. They are
of a nature which fall within the
general authority of Parliament to
B.N.A. ACT, s. 91.—CHINESE EXCLUSION.
63
make laws for the order and good
government of Canada, and have
direct relation to criminal law.”
“ The true nature and character
of the legislation in the particular
instance under discussion must. al-
ways be determined, in order to
ascertain the class of subjects to
which it really belongs. In the
present case it appears to their
Lordships, for the reason already
given, that the matter of the Act
in question does not properly be-
long to the class of subjects, ‘ Pro-
perty and Civil Rights,’ within the
meaning of sub-sec. 13. Their
Lordships having come to the con-
clusion that the Act in. question
does not fall within any of the
classes of subjects assigned ex_
clusively to the provincial legis-
lature, it becomes unnecessary to
discuss the further question whether
its provisions also fell within any
of the classes of subjects enume
rated in sec. 91. In abstaining
from this discussion, they must not
be understood as intimating any
dissent from the opinion of the
Chief Justice of the Supreme
Court of Canada and the other
judges, who held that the Act, as
a general regulation of the traffic
in intoxicating liquors throughout
the Dominion, fell within the class
of subjects, ‘The Regulation of
Trade and Commerce ’ enumerated
in that section, and was, on that
ground, a valid exercise of the
legislative power of the Parliament
of Canada.” Appeal dismissed.
So the question Whether it came
under the sub-sec. 2 of sec.
91 was left undecided. See dis-
cussion in Dominion '0. Four Pro-
vinces, the Dominion Liquor
Licence Acts, 1883-4. [See sub-
sec. 9, sec. 92.]
In HODGE 'v. THE QUEEN, in the
Court of Appeal, Ontario, 7 O. A.
R. 247, Dec. 15, 1883 ; 9 App. Cas.
117; 53 L. J. P. C. 1; 50 L. T.
301, where the Ontario Legisla-
ture passed an Act, the Liquor
License Act of 1877, Revised
Statutes, c. 181, conﬁned in its
operation to municipalities in
‘the province of Ontario, by which
the legislature appointed license
commissioners to meet in each
municipality, and empowered them
to pass, under the name of reso-
lutions, bye-laws or rules to deﬁne
the conditions and qualiﬁcations re-
quisite for obtaining tavern or shop
licenses for sale by retail of spiri-
tuous liquors within the muni-
cipality, for limiting the number
of licenses, and to impose penalties
for infraction of their resolutions,
it was held these were matters of a
mere local nature in the province,
and to be similar to powers then
belonging to municipal institutions
under the previous existing law
passed by the local parliament, and
did not interfere with the general
regulation of “Trade and’ Com-
merce” which belongs to the Do-
minion Parliament, or with the
provisions of the Dominion Tem-
perance Act, 1878.
British Columbia had passed in
1884 a bill to restrict the immigra-
tion of Chinese, and the ﬁne in-
ﬂicted on one Wing Chong by the
magistrate was quashed on the
issue of a writ of certiorari by
Crease, J. Her Majesty’s Privy
Council gave special leave to ap-
peal, but the appeal was eventually
withdrawn. See U. S. Law, Lin-
Sing 1*. Washburn, 20 Cal. 534.
On these Chinese exclusion bills
the Minister of Justice (A. Camp-
bell) for the Dominion reported
that they were objectionable as an
infringement on the above sub~
section. He cited 2 Story’s Com.,
sec. 1061, “Commerce undoubt-
edly is trafﬁc, but it is something
more. It is intercourse. It de-
scribes the commercial intercourse
between nations, and parts of
nations, in all its branches; and is
regulated by prescribed rules for
carrying on that intercourse.” Sec.
1064, “ It may, therefore, be safely
aﬂirmed that the terms of the Con-
stitution have at all times been
understood to include a power over
HODGE 1:. Tina
QUEEN.
Chinese Case
of Wing Chong.
64: B.N.A. ACT, s. 91.—DOM. ACT ULTRA VIRES.
Honor. v. THE
QUEEN.
Tun GovERNon-
GENERAL v.
THE Ponn
PROVINCES.
navigation, as well as trade; over
intercourse, as well as traffic, and
that, in the practice of other coun-
tries, and especially in our own,
there has been no diversity of
judgment or opinion. During our
whole colonial history, this was
acted upon by the British Par-
liament as an uncontestable doc-
trine. That Government regu-
lated not only our traffic with
foreign nations, but our navigation
and intercourse as unquestioned
functions of the power to regulate
commerce.” Sec. 1065, “This
power of the Constitution extends
to commerce with foreign nations,
and among the several States, and
with the Indian tribes. In regard
to foreign nations, it is universally
admitted that the words compre-
hend every species of commercial
intercourse. No sort of trade or
intercourse can be carried on be-
tween this country and another to
which they do not extend. Com-
merce as used in the Constitution
is a unit every part of which indicated by the term.” Pas-
senger cases, 46 S. C. U. S. (7
How, 283). The Canadian Min-
ister of Justice, considering the
Act an interference with the
powers of Parliament to regulate
trade and commerce, recommended
their disallowance. During 1885
the Parliament of Canada passed
an Act restricting and regulating
the Chinese immigration into
Canada, 48 & 49 Vict. c. 7. See
Prov. Leg. 1887, 286.
Following Hodge v. The Queen
came the petition of the Governor-
General of Canada on the Liquor
License Acts of 1883 and 1884,
the case being a reference to the
Privy Council, heard 11 and 12
Nov. 1885, to determine whether
or not the Liquor Licensing Act
of 1883, and an Act of 1884
amending that Act, were z'ntra
wires the powers of the Dominion
Parliament. The Dominion had
passed in 187 8 the Canada Tem-
perance Act, which in Russell v.
The Queen was decided as valid.
Following upon that the Acts of
1883 and 1884 were passed, but
suspended in their operation until
it should be determined by the
Supreme Court whether they were
valid. Under 47 Vict. (Dom) c.
32. s. 26, the Liquor License Acts,
1883 and 1884, were referred by
the Governor-General in Council
to the Supreme Court, to answer
the questions whether the Acts
were in whole or in part within
the legislative authority of the
Parliament of Canada; and, if in
part, what parts are within such
legislative authority. The judges’
opinion was that the Acts referred
to are, and each of them is, ultra
wires of the legislative authority
of the Parliament of Canada, ex-
cept in so far as the said Acts
respectively purport to legislate
respecting those licenses mentioned
in sec. 7 of the said “Liquor
License Act, 1883,” which are
there denominated vessel licenses
and wholesale licenses, and except
also in so far as the said Acts
respectively relate to the carrying
into effect of the provisions of
“ The Canada Temperance Act,
1878,” Henry, J., being of opinion
the said Acts were ultra tires in
whole. Dig. S. C. R. 509; 6 Can.
Gaz. 152, 265. See argument
given in note, p. 144, the result being
the Privy Council reported the
whole Act ultra tires, 12 Dec.
1885. In his argument in that
case Sir Farrer Herschell said
the provincial Act in question in
Citizens’ Insurance Co. v. Parsons
was held not ultra wires because
it was not a matter relating
to trade and commerce, because
certain implied conditions in that
particular province relating to
the property in that province
was a matter dealing with civil
rights in that province, and was
not a matter overborne by the
provision as to the regulation of
trade and commerce. That what-
ever limitation was to be put upon
“ regulation of trade and commerce ”
you ought not to limit it so as to
B.N.A. ACT, S. 91 (2).—BANKING FACILITIES.
65
exclude from the power of the
Dominion Parliament any law re-
lating to trade and commerce which
the Dominion considered necessary
for the “peace, order, and good
government of the country.” It
was unfortunate, but the judges in
Citizens’ Insurance Co. v. Parsons,
when dealing with the words “ re—
gulation of trade and commerce,”
only said, “ It may be they would
include regulations of trade affect-
ing the whole Dominion”; there-
fore what was of very considerable
importance was left undecided.
In MERCHANTS’ BANK OF CAN-
ADA 2:. SMITH, Jan. 16, 1883, 8
S. C. It. 512, held that the Domi-
nion Act, 35 Vict. c. 5., which en-
acted that banks may take certain re-
ceipts as collateral security for pay-
ment of any debt which may be-
come due to the bank under credit
opened by the bank for the holder
of such receipts, was intra circa
of the Dominion, as coming under
banking and facilitating commerce,
and did not constitute an inter_
ference with the functions of the
local legislature under sub—sec. 13,
sec. 92, “property and civil rights
in the province.”
By the New Brunswick Act,
50 Vict. c. 4. 141, 144, provision
was made for the appointment and
payment of inspectors whose special
duty it was to search out and prose-
cute all offenders against the Can-
ada Temperance Act, 1878.
In ea: parte WVHALEN, Tuck, J .,
May 9, 1891, 30 S. C. N. B. 586,
the argument was, that the power
to pass the Canada Temperance
Act, 1878, rested alone with the
Parliament of Canada, as that Act
affects trade and commerce, and
that the Legislature of New Bruns-
wick had no power to pass an Act
whereby the people may be taxed
to carry into effect some of the
provisions of a statute which is
intra rires of the Dominion Par-
liament only. In other words,
that to this Parliament is given
the power to legislate exclusively
on “the regulation of trade and
S 2340.
commerce,” and the “raising of E-TZW‘ZP
f VVnaLEN.
money by any mode or system 0
taxation,” and that legislation
which authorizes the appointment
and payment of inspectors is in
conﬂict with the exclusive rights
of the Parliament of Canada, be-
cause suchlegislation has relation to,
and affects “ trade and commerce.”
“The authorities who administer
justice in the diﬁerent provinces of
Canada are charged to carry into
effect the provisions of the Canada
Temperance Act. There are ﬁnes and
imprisonment for violation of the
Act, and in that respect it is part
of the criminal code of Canada.
Police magistrates and police con-
stables, appointed and paid by the
local authorities, administer this
law as they do the other criminal
law of Canada; and no one for a
moment supposes that local legis-
latures acted beyond their powers
when they authorized the appoint-
ment and payment of such officers.
This Liquor License Act has been
attacked before, notably in Danaher
v. Peters, 14 June 1889, 27 N. B.
Rep. 554; 17 S. C. B. 44, as
being beyond the jurisdiction of
the local legislature; but both this
Court and the Supreme Court of
Canada on appeal have affirmed
the right of the Legislature to pass
50 Vict. c. 4., not on the point
now under consideration, but upon
others where it seems much more
open to attack. It seems to me
that the only object of this Legis
lature is to carry into effect and
ensure the enforcement of the
Canada Temperance Act. For
this purpose inspectors are to be
appointed and paid.” His Lord-
ship continued that it required
a good deal of straining to con-
strue that as an interference with
Canada’s exclusive right to legis-
late upon “trade and commerce.”
And he cited Sir h’lontague
Smith’s deﬁnition of this sub-sec.
in Citizens’ Insurance Co. v. Par-
sons [see sub-sec. 13, sec. 92], that
the words “include political ar_
rangements in regard to trade re~
E
66
B.N.A. AC'I‘, s. 91 (3).-—BB.E\VEBS IN QUEBEC.
Ex parte
\VHA LEN.
DANAHER v.
PETERS.
MOLsoN v.
LAMBE.
LONCUEIL
NAVIGATION Co.
v. CITY or
MONTREAL.
quiring the sanction of Parliament,
regulation of trade in matters of in—
ter-provincial concerns, and it may
be that they would include general
regulation of trade affecting the
whole Dominion ”; and held that
the Act under consideration did not
conﬂict with the power of the Do-
minion Parliament to legislate upon
the subject of sub-sec. 2.
In DANAHEE v. PETERS, 27 S. C.
N. B. 554, June 14,1889, 17 S. C.
B. 44, it was held that the Legisla-
ture of New Brunswick, by the
New Brunswick Liquor License
Act, 1887, 50 Vict. c. 4., could pro-
perly impose the conditions that
applications for licenses must be en-
dorsed by,the certiﬁcate of one-third
of the ratepayers of the district for
which the license was asked, and
that no holder of a license should be
a member of the municipal council,
a justice of the peace, or a public
school teacher, and that the Act
was not ultra vires the local legis-
lature as being a prohibitory mea-
sure by reason of the ratepayers
being able to prevent any licenses
being issued, nor was it a measure
in restraint of trade by aﬂixing a
stigma to the selling of liquor.
In MoLso-N t. LAMBE, 1 Mon.
Sup. C. 264; 2 Mon. B. 381;
in S. C. March 15, 1888, 15 S. C.
B. 253, Severn’s case [see p. 52]
was not followed, and it was held
that brewers must take out a license
in Quebec under the provincial Act,
41 Vict. c. 3., although duly licen-
sed as a brewer under the Dominion
Parliament Act, 43 Vict. c. 19.
In LONCUEIL NAvIeATIoN Cow.
CITY OF MONTREAL, Dec..15, 1888,
15 S. C. It. 566; reported below, 3
Mon. Q. B. 172, it was held that
the provincial Act of Quebec, 39
Vict. c. 52., imposing a tax on ferry
boats, was valid, though the bye-law
was bad for not following the Act.
The defendants in QUEDDY RIVER
DRIvINo BOOM Co. r. DAVIDSON,
May 1, 1883, 10 S. C. R. 222,
claimed, under a New Brunswick
Act, 45 Vict. 100., which incor-
porated them, to cause an ob-
struction by booming in a tidal
and navigable river. Held, affirm-
ing Palmer, J ., that to give a
right to obstruct navigation was
an encroachment on the exclusive
powers given to the Dominion
under sub-sec. 2 of see. 91. Se-
condly, that such legislation might
interfere with the rights of persons
not Canadians having rights to
navigate or ﬁsh. Taschereau, J .,
did not disagree from the judgment,
but said “ navigation and shipping
are left under the control of the
Federal authority, it is true; but
this, under sub-sec. 10 of sec. 92 of
the B. N. A. Act, does not extend
to, for instance, a line of steamers
or other ships entirely within the
province—that is to say, plying
from one part of the province to
another part of the same province.
That would, I presume, be a local
undertaking under the control of
the local legislature. May it not
be said that the boom in question
is also a local undertaking? Can
it be said that the incorporation of
this company was for federal ob-
jects P If it was for provincial ob-
jects, was it not legally incorporated
by the New Brunswick Legisla-
ture?” See American case, State
of Pennsylvania 1*. The Wheeling
and Bridge Co., Dec. 1851, 54
S. C. B. (U. S.) (13 How.) 518.
For power to license, regulate, and
govern trades see Virgo a. City of
Toronto, 20 O. A. B. 435; Feb. 20,
1893, 22 S. C. B. 447, where all the
cases on interference with trade are
cited.
(3.) The raising of money by any mode or system of
taxation.1
1 See American Constitution, art.
1. s. 8. This article is to be recon-
ciled with sub-sec. 2 of sec. 92 by
treating sub-sec. 3 of sec. 91 as
B.N.A. ACT, 91 (3).—PROVINCIAL SUBSIDIES. 67
empowering the supreme legisla-
ture to raise revenue by any mode
of taxation, whether direct or in-
direct, and sub-sec. 2 of sec. 92 as
conﬁning the provincial legislature
to direct taxation within the pro-
vince for provincial purposes.
See Dow 22. BLACK, March 5, 1 875,
6 L It. P. C. 272; 44 L. J. P. C.
52; 32 L. T. 274, reversing the
Supreme Court of New Bruns-
wick, 22 Feb. 1873, l Pugs. 300,
and holding that the Act of the
provincial legislature of New Bruns-
wick, 33 Vict. c. 47., empowering the
majority of the inhabitants of the
parish of St. Stephen in the pro-
vince to raise by local taxation a
subsidy to advance the construction
of a railway going beyond the
frontier already authorized by sta-
tute, was within the power of the
provincial legislature.
Sir J. ‘V. Colvile said, delivering
the judgment of the Judicial Com-
mittee, at which were present, also,
James and Mellish, L.JJ., and Sir
Montague E. Smith: “In substance
and principle it does not differ from a
private Act authorizing the trustees
of a minor to let a warehouse to a
company. Suppose the work, instead
of being a railway, had been a
canal, and the inhabitants had been
authorized to make a bargain for
the supply of water to the district,
could any doubt have been enter-
tained on the subject? Their Lord_
ships are of opinion that no ob-
j ection to the validity of the Act is
to be found in the sub-section in
question ” [sub-sec. 10 (a) sec. 92].
“ Another question has been
raised for the ﬁrst time at this Bar
(for the objection does not appear
to have been taken in the Colonial
Court), whether there was power in
the provincial legislature to pass an
Act by which such an assessment
as this could be imposed on the
town of St. Stephen.”
“ It has been argued that whereas
the 91st section reserves to the Par-
liament of Canada exclusive power
of legislation in respect of, amongst
other subjects, ‘ the raising of DOW 11' BLACK-
money by any mode or system of
taxation,’ the only qualiﬁcations im-
posed on that general reservation
are to be found in the 2nd and 9th
sub-secs. of sec. 92. The latter has
obviously no bearing on the present
question. As to the former, it was
contended that it authorizes direct
taxation only for the purpose of
raising a revenue for general pro-
vincial purposes, that is, taxation
incident on the wl:ole province for
the general purposes of the whole
province. Their Lordships see no
reason for giving so limited a con-
struction to this clause of the sta-
tute. They think it must be taken
to enable the provincial legislature,
whenever it shall see ﬁt, to impose
direct taxation for a local purpose
upon a particular locality within
the province. They conceive that
the sub-sec. 3 of sec. 91 is to be
reconciled with sub-sec. 2 of sec. 92
by treating the former as empower-
ing the supreme legislature to raise
revenue by any mode of taxation,
whether direct or indirect; and the
latter as conﬁning the provincial
legislature to direct taxation within
the province for provincial pur-
poses.”
“ Their Lordships are further of
opinion, with Fisher, J ., the dis-
sentient judge in the S. C., that
the Act in question [N. B. Act,
33 Vict. c. 47 .], even if it did not
fall within the 2nd sub-sec. of sec.
92, would clearly be a law relating to
a matter of a merely local or private
nature within the meaning of sub-
sec. 9 of sec. 92 of the Imperial
statute, and therefore one which
the provincial legislature was com-
petent to pass, unless the subject-
matter could be distinctly shown to
fall within one or other of the
classes of subjects specially enu-
merated in the 91st section. This
view is in accordance with the
ruling of the tribunal in the recent
case of L’Union St. Jacques de
Montreal '0. Belisle,” 15 L. C. J.
212. [In Q. B. Quebec, 20 Sept.
1872; in P. C. July 8, 1874, 6 L.
E2
68
B.N.A. ACT, s. 91 (3).——TAXATION ON BANKS.
Dow v. BLACK.
Arr-Gm. FOR
QUEBEC 1:.
QUEEN INSUR-
ANCE Co.
TORONTO BANK
and the other
three cases
v. LAMBE.
R. P. C. 31; 31 L. T. 111; 22
W. R. 933. See ante, sec. 91 ; and
sub-sec. 21, sec. 91]. See for the
early part of the judgment in Dow
11. Black, sub-sec. 10 (a), sec. 91.
Sir Montague E. Smith, in giving
judgment in Citizens’ Insurance
Co. 1'. Parsons, in courts below,
43 U. C. Q. B. 261; 40. A. R. 96;
4 S. C. R. 215 ; in P. C. Nov. 26,
1881, 7 App. Cas. pp. 96, 108;
51 L. J. P. C. 11; 45 L. T. 721
[post, sub-sec. 13], said: “ So ‘ the
raising of money by any mode or
system of taxation ’ is enumerated
among the classes of subjects in
sec.91 ; but, though the description
is suﬂiciently large and general to
include ‘ direct taxation within the
province, in order to the raising of
a revenue for provincial purposes,’
assigned to the provincial legisla-
tures by [sub-sec. 2] sec. 92, it ob-
viously could not have been intended
that in this instance also the general
power should override the parti-
cular one. WVith regard to certain
classes of subjects, therefore, gene-
rally described in sec. 91, legislative
power may reside as to some matters
within the general description of
these subjects in the legislatures of
the provinces.”
In TORONTO BANK and the other
three cases r. LAMBE, in Q. 13.,
Quebec, 23 Jan. 1885; in P. C.
July 9, 1887, 12 App. Cas. pp. 575,
585; 56 L. J. P. C. 87; 57 L. T.
377 [see post, sec. 92, sub-sec. 2],
the Quebec Legislature had taxed
every bank, insurance company, and
incorporated company carrying on
business, accepting risks, or trad-
ing, 800., respectively in the pro-
vince of Quebec, banks paying a
tax on the paid-up capital, and an
additional sum for each place of
business. Insurance companies were
taxed in a sum speciﬁed in the Act.
The Judicial Committee held this
Act was within the power of sub-
sec. 2, sec. 92, and was intm wires.
Lord Hobhouse, in giving judg-
ment, said: “It is impossible to
give exclusively to the Dominion
the whole subject of raising money
by any mode of taxation, and at
the same time to give to the pro-
vincial legislatures, exclusively or
at all, the power of direct taxation
for provincial or any other pur-
poses. This very conﬂict between
the two sections was noticed by
way of illustration in the case of
Parsons ” [and his Lordship quoted
the passage from Parsons’ case given
above]; and said their Lordships
“adhere to that view, and held that
as regards direct taxation within the
province to raise revenue for pro—
vincial purposes, that subject falls
wholly within the jurisdiction of
the provincial legislatures.”
The Judicial Committee, July 5,
187 8, in ATTORNEY-GENERAL FOR
QUEBEC r. QUEEN INSURANCE Co.,
in Q. 13., Quebec, 14 Dec. 1877, 27
L. C. J. 77; in P. C. July 5,1878,
3 App. Cas. 1090; 38 L. T. 897
[see post, sec. 92, sub-secs. 2 and
9, pp. 119, 126], held that the
Quebec Act, 1875, 39 Vict. c. 7.,
which merely provided that the
price of a license, which all assurers
except marine must take out, should
be an adhesive stamp affixed to the
policy or receipt or renewal—the
amount of the stamp to be in case
of ﬁre 3 per cent, and 1 per cent.
for other assurances, on the pre-
miums paid—was not within the
power of the provincial legislature
under sub-secs. 2 and 9 of sec. 92.
INLAND REVENUE—Held that
the 156th section of the Dominion
Inland Revenue Act, 31 Vict. c. 8,
by which the Dominion Parliament~
conferred jurisdiction on the Vice-
Admiralty Court, N. S., in prosecu-
tions for penalties and forfeitures
incurred‘ thereunder, was z'ntra
'r-z'res the Dominion, notwithstand-
ing such court is established in
Canada by Imperial authority.
Attorney - General of Canada 1).
Flint, 3 S. C. N. S. 453, in
S. C. Jan. 16, 1884, 16 S. C. R.
707 ; see also Valin v. Langlois,
3 S. C. R. 1; 5 App. Cas. 115;
B.N.A. ACT, 91 (4)-(7).—MILITARY DEFENCE.
69
49 L. J. P. C. 37; 41 L. T. 662
[at/late, sec. 41].
Henry, J., said: “Although the
Vice-Admiralty Court is established
by the authority of England, still
I see nothing to prevent the Par-
liament of Canada, inasmuch that Court sits within the jurisdic-
tion of that Parliament, to give it
power and authority to try Inland
Revenue cases or cases connected
with the Customs. I would say,
however, I do not think that Court
could be obliged to perform such
duty, and that it is a Court which
might very well wrap itself up in
its authority, and say, ‘ Our other
duties prevent us from assuming
the functions assigned to us by the
Parliament of Canada ’; but it is
ready to adopt the duty, and I see
no reason why the Parliament of
Canada should not have the power
to impose it.” See Imperial Colo-
nial Courts of Admiralty Act,
1890, 53 8a 54 Vict. c. 27. s. 3.
Reference may be made to the
United States Constitution. There
Congress has special and enume-
rated powers.
that have special and enumerated
powers. For instance, the US.
Congress has not an unlimited
power of taxation. It has been
held to be limited to speciﬁc ob-
jects. No doubt, to make gram-
mar of the 1st clause of the 8th
section of the US. Constitution,
and to give it at the same time a
qualifying sense, the words “in
order ” have to be inserted in that
section. See Story, Const. U. S.
908. A sample of this limited
power was given on 21 May 1895,
when the Supreme Court, U. S.,
by the majority, composed of Ful-
ler, Field, Gray, Brewer, and
Shiras, JJ., were against the legal-
ity of the income-tax on rent and
personal property imposed by the
Tariﬁ Act, 1894, ss. 27 to 37, on
the ground that it was a direct tax
and therefore unconstitutional.
The judges in favour of the mea-
sure were Harlan, White, Brown,
and Jackson, J J .
(4.) The borrowing of money on the public credit.1
(5.) Postal service.2
(6.) The census and statistics.3
('7 Militia, military and naval service, and defence.4
1 See American Constitution,
art. 1. s. 2.
2' Sec American Constitution,
art. 1. 7.
3 The Minister of Justice, 2 Jan.
1873, while allowing a British
Columbia Act respecting registra-
tion of births, deaths, and mar-
riages in that province, desired to
call attention to the fact that the
Act might be questioned as being
connected with “ statistics.” Prov.
Leg., 1866, p. 715.
4 See American Constitution,
art. 1. 12 (Army), 13 (Navy),
15 (Militia).
The Dominion having the ex-
clusive right of legislating as to all
matters coming under this head,
and any part of the land in a
province, might be taken by the
Dominion Legislature for the pur-
pose of military defence. But be-
cause this possibly might be done is
no reason for holding that an Act of
the provincial legislature where the
land is situated, dealing with the
land in a local and private manner,
is ultra Tires. See Lord Selborne
in L’Union St. Jacques de Mon-
treal 1‘. Belisle, 15 L. C. J. 212', in
Q. B. Quebec, 20 Sept. 1872; in
P. C. July 8, 1874, L. 11.6 P. C.
p. 37; 31 L. T. 111; 22 W. R.
933 boost, sec. 91, sub-sec. 21].
In the Dominion INLAND
Constitution it is the provinces REVENUE-
70 B.N.A. ACT, 91 (8)-(10).—NAVIGATION & SHIPPING.
REG. v.
COLLEGE OF
PHYSICIANS.
LEPROI-ION v.
CORPORATION
OF OTTAWA.
In REG. 7:. COLLEGE OF PHYSI-
CIANS, Ontario, Dec. 27, 1879, 44
U. C. Q. B., p. 576,Hagarty, C.J.,
held that the B. N. A. Act, when it
speaks of any exclusive right, it
means exclusive as opposed to any
attempt to legislate by the Domi-
nion Parliament. And see Note,
sub-sec. 23, Sec. 91.
(8.) The ﬁxing of and providing for the salaries and
allowances of civil and other officers of the
Government of O’amada.1
(9.) Beacons, buoys, lighthouses, and Sable Island.2
(10.) Navigation and shipping.3
1 Compare with sub-sec. 4, sec. 92.
A tax by or through a pro-
vincial legislature upon the means
by which the Dominion Govern-
ment is carried on is ultra rz'res.
In Leprohon c. Corporation of the
City of Ottawa, 30 March 1878,
2 O. A. R. [Tupper] 522; lower
court, 40 U. C. Q. B. 47 8, reversed,
held that a provincial legislature
has no power to impose a tax upon
the official income of an officer of
the Dominion Government or to
confer such a power on the muni-
cipalities.
Spragge, J .: The raising of
money is necessary for the due
and effectual working of municipal
institutions, and the giving to them
the power to raise money by taxing
inhabitants of the municipality for
municipal purposes would seem to
be within the power of the pro-
vincial legislature. “There is at
the same time an implied limita-
tion upon every power conferred,
whether conferred in terms or by
implication, that it must not
encroach upon or interfere with
the powers conferred elsewhere.”
“ What the Legislature of Ontario
has done has been to declare in-
come to be personal property and
to make land and personal property
liable to taxation for municipal
purposes; at ﬁrst continuing an
exemption then upon the statute
book, and then by a subsequent
Act of 1871 abolishing that ex-
emption, leaving incomes of Do-
minion as well as provincial oﬂicers
liable to taxation as a species of
personal property.” “I premise
if the provincial legislature cannot
do indirectly what it cannot do
directly, if it cannot impose a
direct tax upon public salaries,
Dominion as well as provincial, it
cannot empower Immicipalities to
do so.” It would be within the
competency of a provincial legis-
lature under sub-sec. 2, sec. 92
[Direct Taxation], to impose a pro
rata tax upon all salaries given to
provincial officers. It would be so
because it would be acting on those
over whose salary they have con-
trol. But suppose such a. tax im-
posed upon the salarics of all
officers of Government, Dominion
as well as provincial, it would raise
a very different question. It would
impose a burden upon the salary
of the Dominion officer.
It was held in Evans 2'. Hudon,
29 Dec. 1877, 22 L. C. J. 268,
that a local Act of Quebec Legis-
lature was unconstitutional, which
declared seizable the salaries of em-
ployees of the Federal Government.
2 Referred to in L’Union St.
Jacques de Montreal 0. Bélisle,
15 L. C. J. 212, in Q. B. Quebec,
20 Sept. 1872; in P. C. July 8,
1874, L. B. 6 P. C. p. 37; 31 L.
J. 111; 22 W. R. 933 [post, sec.
92, sub-sec. 16].
3 This conferred on the Parlia-
ment of Canada legislative authority
over all matters occurring in Cana-
B.N.A. ACT, s. 91 (11), (12).—-1)OMINION & FISHERIES.
71
dian waters within the subject
Navigation and Shipping, and its
co-operation was required to give
effect to the same rules of naviga-
tion as has been used in England.
See “ Eliza Keith,” 6 April 1877;
3 Q. L. R. 143. There the Cana~
dian Act of 1868, 31 Vict. c. 58.,
which provided that where two
ships were each to blame for a col-
lision in Canadian waters both were
precluded from recovering its dam-
age, was held to be operative, al-
though the Admiralty rule which
divides the loss prevails in Eng-
land, and had been applied in a
case of collision on Canadian
waters on an appeal to the Privy
Council [Underwriter and “Lake
St. Clair” c. A. Ct. Quebec, in
P. C. 14 Feb. 1877, 2 App. Cas.
389; 36 L. T. 155]. The law
given effect to in “ Eliza Keith ” is
not now effective in Canada, the
law having been made similar to
English law, namely, that when
both vessels are in fault, the dam-
age is to be borne equally. See p.
1158 of R. Sta. Canada, 1886, 49
Vict. c. 79. s. 7.
Professing to act under the
powers contained in their Act of
incorporation, 45 Vict. c. 100.
(New Brunswick), the Queddy
River Driving Boom Company
erected booms and piers in the
Queddy River, in that part of the
river which is tidal and naviga-
ble, and thus’ impeded navigation.
It was held that provincial legisla—
tures could not give power to ob-
struct a tidal navigable river.
Queddy River Driving Boom Com-
pany '0. Davidson, May 1, 1883,
10 S. C. R. 222.
The Nova Scotia Legislature
passed the 49 Vict. c. 56., an Act
concerning the collection of freight
and wharfage and warehouse
charges, and has, with a few
changes, re-enacted the provision
of the Merchant Shipping Act,
1862', relative to the delivery of
goods and lien for freight, ss. 66,
67. That latter Act by its terms
was to be construed with the Mer-
chant Shipping Act of 1854, by the
547th sec. of which it was provided
that the legislative authority of any
British possession shall have power
by any Act or ordinance conﬁrmed
by Her Majesty in Council to re-
peal wholly or in part any provi-
sion of the Act relating to shipping
registered in such possessions, after
proclamation and the statement of
a future time for commencement.
The Minister of Justice, 30 March
1887, reported that the Parliament
of Canada, acting under sec. 91,
passed Acts respecting navigation
and shipping and trade and com-
merce in its relation to these sub-
jects. That subject to this legis-
lation the Merchant Shipping Act,
1854 [see now the Act of 1894,
c. 60. 735], is in force in Can-
ada, and in his opinion the legisla-
ture of the province of Nova
Scotia exceeded its powers in pas-
sing the Act under consideration.
Prov. Leg, 1888, 132.
(11.) Quarantine and the establishment and mainten-
ance of marine hospitals.1
(12.) Sea coast and inland ﬁsheries.2
1 Dealt with by the Dominion.
Therefore on 5 April 1887, the Min-
ister of Justice recommended cer-
tain sections of Public Health Act,
49 Vict. c. 4., passed by Legislature
of Prince Edward Island be re—
pealed. Prov. Leg, 1887.
2 See sees. 92 (sub-secs. 13, 16),
109,129. .
Because land might be taken by
the Dominion is no reason before
it is done to argue that all provin-
cial legislation over all land in the
province is taken away. See Lord
QUEDDY
RIVER Co. v.
DAVIDSON.
72
B.N.A. ACT, S. 91 (12).--LEASES or FISHINGS.
ROBERTSON v.
STEADMAN.
REG. v.
RoEERTsoN.
Selborne in L’Union St. Jacques
de Montreal '0. Belisle, 17 L. C. J.
212, in Q. B. Quebec, 20 Sept.
1872; in P. C. July 8, 1874; L.
11.61). 0.1). 37; 31L. T. 111;
22 W. R. 933.
Fish, J ., who was a party to the
various discussions relating to the
Union, and knew the object of
placing the ﬁsheries under the con-
trol of the Dominion, as he himself
tells us in Robertson 1*. Steadman,
Oct. 1876, S. C. N. B., 3 Pugs.
635, 637, says in that case:
“ Looking at the objects sought
to be attained by the union of the
provinces, and the state of legisla-
tion in the different provinces at the
time of the Union ” [they all having
laws for the protection and regula-
tion of the ﬁsheries] “I think it
must be inferred that the intention
was to confer upon Parliament the
same power that the legislatures of
the different provinces had been
accustomed to exercise, that is, the
power to provide for the regulation
and protection of the ﬁsheries.”
See also Steadman '0. Robertson,
1879, S. C. N. B., 2 Pugs. & Bur.
at p. 594, a later stage of the same
case, where Fisher, J ., repeats the
above.
Held in REG. r. RoBER'rsoN,
April 28, 1882, 6 S. C. R. 52, that
the general power of protecting ﬁsh-
ings is in the Parliament of Canada,
but. the Minister of Marine and
Fisheries ought only to grant leases
of ﬁshing where the exclusive right
of ﬁshing does not already exist by
law. This was a question as to
the right of salmon ﬁshing in the
Miramichi river above tidal waters
in the province of New Brunswick,
and as to the validity of an instru-
ment purporting to be a license
or lease, under the Dominion
Fisheries Act, 31 Vict. c. 60. s. 2.
(1868), issued by the Minister of
Marine and Fisheries. Though
non-tidal at this part the river was
a navigable highway, and used for
ﬂoating timber to market in the
spring and ‘fall. There were Acts
in New Brunswick, Nova Scotia,
and Canada respectively, dealing
with ﬁsheries and ﬁshing at the
passing of the B. N. A. Act, and
these were to continue until altered.
B. N. A. Act, sect. 129. Ritchie,
C.J. said (p. of R. 126) : “ The un-
granted lands in the province of
New Brunswick being in the Crown
for the beneﬁt of the people of New
Brunswick, the exclusive right to
ﬁsh follows as an incident, and is
in the Crown as a trustee for the
beneﬁt of the people of the pro-
vince exclusively, and therefore a
license by the Minister of Marine
and Fisheries to ﬁsh in streams
running through provincial pro-
perty or private lands is illegal,
and consequently the lease or license
issued to the suppliant is null and
voic .” (p. 119) “ To all general laws
passed by the Dominion of Canada
regulating ‘sea coasts and inland
ﬁsheries’ all must submit, but such
laws must not conﬂict or compete
with the legislative power of the
local legislatures over property and
civil rights beyond what may
be necessary for legislating gene-
rally and eﬁectually for the regu-
lation, protection, and preservation
of the ﬁsheries in the interests of
the public at large. Therefore,
while the local legislatures have no
right to pass any laws interfering
with the regulation and protection
of the ﬁsheries as they might have
passed before confederation, they
clearly have a right to pass any laws
affecting the property in those ﬁsh-
eries.” In this opinion Strong, J .,
concurring, said (p. 133) : “By sub-
sec. 13 of sec. 92, the exclusive right
to legislate concerning property is
conferred upon the local legisla-
tures, to whom also by the 16th sub-
section are granted similar powers
concerning matters of a local and
private nature. These provisions
must necessarily exclude the right
of the Parliament of the Dominion
to legislate to the prejudice of the
rights of ﬁshing vested in the pro-
prietors of beds of rivers and
streams, unless we ﬁnd in sec. 91,
B.N.A. ACT, 91 (l2).—GREAT' LAKE FISHERIES.
73
deﬁning the powers of the Parlia-
ment, some exception to the general
effect of the word ‘ property’ as in-
cluding such a proprietary right.”
The sub-sec. 12, sec. 91, “ by
the single expression ‘inland ﬁsh-
eries,’ conferred upon the Parlia-
ment of Canada no power of
taking away exclusive rights of
ﬁshery vested in private proprie-
tors of non-navigable rivers, and
such exclusive rights, being in every
sense of the word ‘property,’ can
only be interfered with by the
provincial legislatures in exercise
of the powers given to them by
the provisions of sec. 92.” “This
does not by any means leave the
sub-clause referred to in sec. 91
without effect, for it may well be
considered as authorizing Parlia-
ment to pass laws for regulating
and conservation of all ﬁsheries,
inland as well as sea-coast, by enact-
ing, for instance, that ﬁsh shall
not be taken during particular
seasons, in order that protection
may be afforded whilst breeding;
prohibiting obstructions in ascend-
ing rivers from the sea; prevent-
ing the undue destruction of ﬁsh
by taking them in a particular
manner, or with forbidden engines,
and in many other ways providing
for what may be called the police
of the ﬁsheries. Again, under this
provision Parliament may enact
laws for regulating and restricting
the right of ﬁshing in the waters
belonging to the Dominion, such as
public harbours, the. beds of which
have lately been determined by
this Court [see sec. 108 and Holman
v. Green, March 28, 1881, 6
S. C. R. 707] to be vested in the
Crown in right of the Dominion,
and also for regulating the public
inland ﬁsheries of the Dominion,
such as those of the great lakes and
possibly also those of navigable
non-tidal rivers.” “By the B. N. A.
Act the Crown lands are vested in
the respective provinces. This, of
course, includes the beds of all non-
navigable rivers and the consequent
right to ﬁsh in such waters, for
there can be no doubt that the right
of taking the ﬁsh in rivers of this
class, so long as they remain un~
granted, is vested in the provinces as
an incident of the ownership of the
public domain, just as the timber
and all other proﬁts of the land
are so vested. These ﬁsheries,
although often in practice not con-
served by the provinces, are cer-
tainly not public ﬁsheries open of
common right to all who may
choose to avail themselves of them,
as is the case with regard to
ﬁsheries in tidal waters and the
great lakes, but the provincial
governments may, without special
legislation and in exercise of their
right of property, restrict their use
in any manner which may seem
expedient, just freely as private
owners might do. In short, the
public have no more right in law to
take ﬁsh in non-navigable rivers
belonging to the province than they
have to fell and carry away trees
growing on the public lands; in
the one instance, as in the other,
such interferences with provincial
rights of property are neither more
nor less than illegal acts of tres-
pass.” “ The Crown lands are
expressly assured to the provinces,
and these include the beds of all
streams as that now in question.
Where it was intended to make an
exception to the general terms of
sec. 109, in the case of property
l‘QSPl‘Vt‘d to Canada by the 108th
sec, and the power to assume lands
or public property for the purpose
of defence, sec. 117, we ﬁnd such
exceptions expressed in clear and
distinct enactments. How, then,
can it be presumed, in View not
only of the 109th see. but also of
the 5th sub-sec. of sec. 92, giving
the provinces exclusive legislative
powers respecting the public lands,
and that as to property generally in
sub-sec. 13., sec. 92, that the Do-
minion has the power to legislate
respecting these ﬁsheries incidental
to the ownership of the provincial
lands, or respecting any other dis-
memberment of the right of pro-
REG. v.
ROBERTSON.
7t B.N.A. Ac'r, S. 91 (13)-(15).--PARAMOUNT Ae'rs.
REG. v.
ROBERTSON.
TENNANT 1).
UNION BANK
or CANADA.
perty in such lands, if it is not
conferred by the clause in sec. 91
respecting sea-coast and inland
ﬁsheries? Not a single provision
of the B. N. A. Act can be pointed
to as conferring such powers of
legislation except that just men-
tioned, which, for the reasons al-
ready given in considering the case
of private owners, must be held in-
applicable.” “There are, of course,
ﬁsheries of a (‘liﬁz'erent character
from those in non—navigable waters
to be found within the limits of all
the provinces—public ﬁsheries, such
as those in tidal rivers and in the
great lakes of the western pro-
vinces. A question may arise
whether the provisions contained in
sec. 91 authorizes Parliament to
empower the Crown to grant the
exclusive rights in respect to such
ﬁsheries." But his Lordship did not
decide that question. A like view
of the law was taken by Fisher, J .,
in Steadman v. Robertson, 1879,
S. C. N. B., 2 Pugs. & Bur. p. 598.
See Direct United States Cable
Co. 2.’. Anglo—American Telegraph
00., Feb. 111, 1877, 2 App. Cas. at
p. 416; 46 L. J. P. 7. 71; 36 L. T.
265, where Lord Blackburn held
that the Legislature of N ewfound-
land had the right derived from the
Crown to give the use of a spot in
Conception Bay (a bay averaging
15 miles wide and about 40 miles
from its head to the promontory of
Cape St. Francis) as if it were a
spot of dry land of the island of
Newfoundland. See the case of
ﬁshing for salmon in the Bay of
Chaleurs, more than three miles from
shore. Mowat v. McFee, June 10,
1880, 5 S. C. R. 66. -
Prince Edward Island Legisla-
ture, proposing to pass an Act for
the preservation of the Alewives
ﬁsheries, the Minister of Justice
objected that the province could
not now pass such an Act, nor con-
tinue the old Act in force, as it was
a matter delegated to the Dominion
Parliament. Prov. Leg, 1886, 918.
No restraint upon the ordinary
rights of property, no derogation
from the fullest enjoyment of these
rights, can be imposed by statute,
except by express words. There-
fore, where an inspector of ﬁsheries,
acting under the Dominion Order
in Council, 11 June 1879, passed
in pursuance of see. 19 of the
Fisheries Act, 31 Vict. (Don1.)
c. 60., in these words, “Fishing
for salmon in the Dominion of
Canada, except under the authority
of leases or licenses from the De-
partment of Marine and Fisheries,
is hereby prohibited,” went on the
prosecutor’s land situated above
the flow of the tide and seized his
rod for ﬁshing for salmon without
a license, it was held a. trespass had
been committed, Strong, J., saying,
“ Granting the Dominion could make
police regulations for preservation
of salmon in the public interest and
for preservation of ﬁsheries, that
neither explicitly nor by implication
is the requirement of a license made
applicable to riparian owners as
regards ﬁshing in private streams.”
Venning v. Steadman, March 8,
1884, 9 S. C. R. p. 215.
(18.) Ferries between a province and any British or
foreign country or between two provinces.
(14.) Currency and coinage.1
(15.) Banking, incorporation of banks,2 and the issue
of paper money.
1 See American Constitution,
art. 1. 10.
2 Although a Dominion Act may
clash with matter assigned to the
provincial legislatures, yet the
Dominion Act is the paramount
authority (TENNANT 1). UNION
BANK OF CANADA, in Ct. App.
B.N.A. ACT, S. 91 (15).--ASSESSMENT ON BANK NOTES. 75
Ont., 8 Jan. 1892, 19 O. A. R. 1; in
P. C. Dec. 9, 1893, P. C. [1894]
A. C. 31; 63 L. J. P. C. 25; 69
L1‘. 774) [see sub-sec. 13,sec. 92];
and warehouse receipts taken in
security by a bank in the course of
the business of banking are matters
coming within the class of subjects
described in sec. 91, sub-sec. 15,
and provisions made by the Domi-
nion Bank Act, R. S. C. c. 120.
ss. 45, 53, 54 (2), and 54, respecting
such receipts are i-ntra Tires. See
sec. 92, sub-sec. 13.
In BANK or TORONTO 2'. LAMBE
(from B., Quebec, Jan. 23, 1885,
29 LC. J. 77; 1 Mon. Q. B. 122;
in P. C. July 9, 1887; Wheeler’s
P. C. Law, 384; 12 App. Cas. 575;
56 L. J. P. C. 87; 57 L. T. 377;
see post, sec. 92, sub-sec. 2), the
Judicial Committee held, aflirming
the decision of the Queen’s Bench,
Quebec, that the Quebec Act im-
posing a tax on the paid-up capital
of every bank doing business in
the province was 'z'm‘m Tires, and
within the powers of the provincial
legislature under sub-sec. 2 of sec.
92, and could not see how the
power of making banks contribute
to the public objects of the pro-
vinces where they were carrying on
business could interfere at all with
the powers of making laws on the
subject of banking, or with the
power of incorporating banks.
In MERcI-IANTs’ BANK 2'. SMITH,
Jan. 16, 1884, 8 C. A. R. 15; 8 C. R. 512, 28 Grant, 629, a-ﬁirmed
by Tennant 0. Union Bank, it was
held that areceipt- given by a ware-
houseman was a valid receipt within
the Dominion Act, 34 Vict. c. 5. s. 46,
and that that Act was int'ra sires
the Dominion Parliament under
sub-secs. 2 and 15, sec. 91—Begula-
tion of trade and commerce; and
banking, &c.
In the TOWN OF WINDSOR 2'.
COMMERCIAL BANK or WINDSOR,
15 S. C. N. S. (3 Russ. and Gel-
dert), 420, VVeatherbe, J ., held
that “ all property, except that
of the Dominion or the pro-
vinces (see sec. 125) may be made
equally liable to assessment for
municipal purposes by provincial
legislation,” and therefore, in the
case of a bank doing business under
the General Banking Act of the
Dominion of Canada in the town of
\Vindsor, which held, in addition
to real and other personal property,
notes of the Dominion of Canada
as a portion of its cash reserve as
required by the Act relating to
banks and banking, it was decided
the assessors for the town of Wind-
sor were right in assessing on the
Dominion Canada notes, they not
being the property of the Dominion.
See Lawless ‘0. Sullivan, 3 S. C. R.
117, March 22, 1881 ; Wheeler’s
P. C. Law, 958; 6 App. Cas. 50;
L. J. P. C. 33; 44 L. T. 897,
which was a tax by the legislature
of New Brunswick on the amount
of income received, whether by
foreign companies or not, doing
business in the city of St. John.
Itv was held, reversing the Supreme
Court, that the tax was payable on
the income after deducting losses for
the ﬁscal year ; that income, when
applied to a commercial business for
a year, meant its natural and com-
monly accepted sense, the balance
of gain over loss; and, consequent-
1y, where no such gain had been
made in the ﬁscal year, there was no
income capable of being assessed.
In QUIET v. THE QUEEN, Nov.
16, 1891, 19 S. C. R. 510; 17 Ont.
App. R. 421 ; 17 ()nt. R. 615, the
Supreme Court held valid two Acts
of the Dominion Parliament. The
ﬁrst Act incorporated trustees to
carry on the business of the Upper
Canada Bank—then insolvent—so
far as necessary for winding it up ;
and the second Act transferred to
the Dominion Government all the
property of the bank vested in the
trustees. Sir W. Ritchie, C.J.,
held the Acts were valid as coming
under sub-sec. 15, sec. 91. Strong,
J ., held they were valid as coming
THE TOWN or
WINDSOR v.
COMMERClAL
BANK OF
WINDSOR.
QUIRT v. THE
QUEEN.
76 B.N.A. Ac'r, s. 91 (16)-(19).-TAXA.TION on INTEREST.
QL'IRT v. THE
QUEEN
LYNCH v. THE
CANADA N. \V.
LAND Co.
under sub-sec. 21, sec. 91, and his
Lordship distinguished the judg-
ment of the P. C. in Union St.
Jacques 'v. Belisle, 15 L. C. J. 212,
in Q. B. Quebec, 20 Sept. 1872;
in P. C. July 8, 1874, 6 L.
R. P. C. 31; 31 L. T. 111;
22 W. R. 933 [see Note, sub-sec.
16, sec. 92], on the ground that
the Act of the Quebec Legislature
in that case was held valid upon
the distinction expressly taken in
the judgment that it was not an
Act providing for a winding-up, as
in the case of bankruptcy or insol-
vency, but was rather an enactment
(16.) Savings banks.
designed to avoid such a result.
And his Lordship, while saying the
Dominion Acts in question might
be said to be special and not general
laws, and therefore were to be con-
sidered as assigned to the provincial
legislature, under sub-sec. 16, sec.
92, the answer to that was that any
matter coming within the subjects
enumerated in sec. 91, although in
other respects it might be classed
under the head of local and private
legislation, was expressly excepted
from the powers of the provincial
legislatures by the last sub-clause
(29) of sec. 91.
(17 Weights and measures.1
(18.) Bills of exchange and promissory notes.2
(19.) Interest.3
1 A section of a Manitobia Act
provided for bye-laws appointing
inspectors for visiting places where
weights and measures were used,
and for seizing and destroying
those not according to the standard.
It was doubted whether this legis-
lation could be passed by the legis-
lature of a province. Prov. Leg.,
1886,p.605.
2 It would have been unnecessary
to specify this class of contracts if
authority over all contracts, and the
rights arising from them, had be-
longed to the Dominion Govern—
ment. See Citizens’ Insurance Co.
7:. Parsons, 43 U. C. Q. B. 261;
4 C. A. R. 96; in P. C. Nov. 26,
1881, 7 App. Cas. p. 110; 51 L.
J. P. C. 11; 45 L. T. 721. See
Note, sub-sec. 13, sec. 92.
3 An additional sum added to
the amount of taxes as a penalty
for nonpayment of taxes is not ill-
terest within the meaning of this
sub-section, but may be considered
as an additional tax added by the
provincial legislature.
LYNCH 'v. THE CANADA N. W.
LAND CO., in Q. B. Manitoba, 7
June 1890, 6 Man. L. R. 515; in
S. C. June 22, 1891, 19 S. C. R.
204, was a case raised to test the
validity of the Act, 49 Vict. c. 52.
s. 626, as amended by 50 Vict.
c. 10. s. 43 of the Manitoba
Legislature. That legislature au-
thorized municipalities to impose
an additional 10 per cent. on taxes
unpaid after a certain time, and the
Acts in question provided, if as-
sessed taxes were not paid by the
1st March, 10 per cent. should be
added to the original amount. It
was contended this additional 10
per cent. was illegal. That it was
interest for delay, and consequently
ultra "tires of the provincial legis-
lature. On the other hand, it was
maintained “interest” in sub-sec.
19, sec. 91, as to which the Do-
minion Act can only legislate, is
interest on commercial matters and
meant merely the rate of interest,
and sub-sec. 19 could not be held
to apply to municipalities dealing
with taxes, the additional tax not
being interest, but a penalty in the
way of an increased tax. Sir W.
Ritchie, C.J., said, reversing the
decision of Q. B. Man. [Taylor,
C.J., Killam and Bain, JJ.] :
B.N.A. ACT, 91 (19).--TAX FOR DELAY. 77
“It is obvious that the matter of
interest which was intended to be
dealt with by the Dominion Parlia-
does not deal directly or indirectly Lyxcn 1'. THE
with matters of contract. The Do. CANADA: N. W,
minion Act expressly deals with LAND (0'
ment [R S. C. c. 127. s. 2], was in
connection with debts originating
in contract, and that it was never
intended in any way to conﬂict
with the right of the local legis-
lature to deal with municipal in-
stitutions in the matter of assess-
ments or taxation, either in the
manner or extent to which the
local legislature should authorize
such assessments to be made, but
the intention was to prevent in-
dividuals under certain circum-
stances from contracting for more
than a certain rate of interest, and
ﬁxing a certain rate when interest
was payable by law without a rate
having been named. [Reads R’. S.
C. c. 127. s. 1.] It is abundantly
clear that taxes are not contracts
between party and party, either
express or implied, but they are
positive acts of the Government.
through its various agents binding
upon the inhabitants, and to the
making and enforcing of which
their personal consent, individually,
is not required. [Cites Meriwether
2*. Garrett, 102 S. C. U. S. 472,
573; Lane County 1*. Oregon, 74
S. C. U. S. (7 Wall) 71, 80]. In
this case I can see no limitation
with respect to municipal matters,
which necessarily embraces the
levying of taxes for municipal pur-
poses and therefore falls within
one of the classes of subjects enu-
merated in sec. 92, and assigned
exclusively to the legislature of
the provinces. Does not the collo-
cation of sub-sec. 19 ‘interest ’ with
the classes of subjects as numbered,
18 ‘bills of exchange,’ and 20
‘legal tender,’ afford a strong indi-
cation that the interest referred to
was connected in the mind of the
legislature with regulations as to
the rate of interest in mercantile
transactions and other dealings
and contracts between individuals,
and not with taxation under muni-
cipal institutions and matters in-
cident thereto? The present case
interest on contracts and agree-
ments, as the ﬁrst section con-
clusively shows.” The Manitoba
“ Legislature was not dealing, or
professing to deal, with the question
of interest, but was dealing exclu-
sively with taxation under muni-
cipal institutions, and the extra tax
which the court below has chosen
to call interest the legislature has
not so denominated, but which the
legislature imposed, no doubt, I
have said before, as a means of
securing payment, and also of ap-
proximately equalizing the rate be-
tween defaulters and those paying
promptly. How can this be con-
sidered in any other light than as
incidental to the power to levy the
assessment as authorized by law,
the principal matter of this Act
being municipal taxation and not
interest, and so prevent the default-er
from gz'iining an undue advantage
over the ratepayer who pays
promptly? And who more com-
petent to apportion this than the
local legislature, and who more
incompetent to deal with this purely
municipal matter than the Dominion
Parliament, charged with the affairs
affecting the peace, order, and good
government of the Dominion P The
B. N. A. Act giving the power of
legislation over direct taxation
within the provinces in order to the
raising of a revenue for provincial
purposes, and over municipal insti-
tutions in the provinces, exclusively
to the provincial legislatures, why
should those bodies be restricted or
limited as to the manner or extent to
which those powers should be exer-
cised? \Vhy should they not be al-
lowed to provide for the contingency
of a failure to pay the taxes on the
days and times ﬁxed, and to make
provision in such an event for an
additional rate or tax.” Appeal al-
lowed. Strong, Fournier, Tascher-
eau, and Patterson, JJ., concurred.
Gwynne dissented. Ross r. Tor-
rance overruled. 2 Legal News, 186.
78 B.N.A. ACT, s. 91 (2o), (21).-—PB.OV. BANKRUPTCY ACTS.
Arr-GEN. or
ONTARIO v.
ATT.-GEN. or
DOMINION.
(20.) Legal tender.1
(21.) Bankruptcy and insolvency.2
1 The sub-section following sub-
sections 18 and 19 shows that the
mind of the legislature in placing
these under the direction of the
Dominion Parliament, intended to
give that parliament power to regu-
late them as to dealing and contracts
between individuals and not under
municipal institutions. See above,
Ritchie, C.J., in Lynch 1). The
Canada N. \V. Land Co.
2 See Constitution of America,
art. 1. s. 4.
A Dominion Parliament Act re-
lating to bankruptcy is intra wires,
although it may interfere with pro-
perty and civil rights in the pro-
vinces, inasmuch as bankruptcy
and insolvency form one of the
classes of matters enumerated in
this sub-sec. Cushing r. Dupuy
(see p. 80); followed in Tennant
'1'. Union Bank of Canada, in C.
App., Ont, Jan. 8, 1892, 19 O.
A. R. 1; in P. C. Dec. 9, 1893,
[1894] A. C. 31; 63 L. J. P. C.
25; 69 L. T. 774.
Where there is no Act of the Do-
minion Parliament in existence as
regards bankruptcy and insolvency,
the provincial legislatures may deal
with ancillary provisions to prevent
the scheme of a provincial system
of bankruptcy legislation being de-
feated; and it may be necessary to
deal with the effect of executions
and other matters, and the provincial
legislatures have full power to do this
until a Dominion Act is in existence
dealing with such matters as part
of a bankruptcy law; and on that
taking place, the provincial legis-
lature would be precluded from
interfering with that legislation, in-
asmuch as such legislation would
affect the Bankruptcy Law of the
Dominion. See Att.-Gen. of On-
tario v. Att.-Gen. for Dominion of
Canada, in Ct. App, Ont., 9 May
1893, 20 O. A. B. 489; in P. C.
February 24, [1894] A. C. 189;
63 L. J. P. C. 59; 70 L. T. 538,
in which case the validity of R. S.
0., 1887, c. 124., ‘An Act respect-
ing assignments and preferences by
insolvent persons,’ was raised. Sec-
tion 9 enacted that ‘ an assignment
for the general beneﬁt of‘ creditors
under this Act shall take precedence
of allj udgments and of all executions
not completed by payment, subject
to the lien, if any, of an execution
creditor for his costs, where there
is but one execution in the sheriff’s
hands, or to the lien, if any, of the
creditor for his costs, who has the
ﬁrst execution in the sheriff’s
hands.’ In the Ontario Court it
was held by Hagarty, C.J., and
Burton, J .A., that the Act was
ultra rires. M acLennan dissented,
and Osler, J J .A., gave no opinion.
Lord Herschel], L.C., in deliver~
ing a reversing judgment [at which
were also present Lords ‘Vatson,
Macnaghten, and Shand, and Sir
Richard Couch], and after dealing
with the history of the legislation in
relation to this and cognate matters
both in the provinces and in the
Dominion, said : “ Their Lordships
proceed now to consider the nature
of the enactment said to be ultra
Tires. It postpones judgments and
executions not completely executed
by payment to an assignment for
beneﬁt of creditors under the Act.
Now there can be no doubt that
the eﬂ'ect to be given to judgments
and executions and the manner and
extent to which they may be made
available for the recovery of debts
are primd facz'c within the legis-
lative power of the provincial parlia-
ment. Executions are a part of
the machinery by which debts are
recovered, and are subject to regu-
lations by Parliament. A creditor
has no inherent right to have his
debt satisﬁed by means of a levy
by the sheriff, or to any priority
in respect of such levy. The exe-
cution is a mere creature of the
law which may determine and
B.N.A. ACT, s. 91 (my—WHERE NO DOMINION ACT.
79
regulate the rights to which it
gives rise. The Act of 1887, which
abolished priority as amongst exe-
cution creditors, provided a simple
means by which every creditor
might obtain a share in the distri-
bution of moneys levied under an
execution by any particular credi-
tor. The other Act of the same
year, containing the section which is
impeached, goes a step further, and
gives to all creditors under an
assignment for their general beneﬁt
a right to a rateable share of the
assets of the debtor, including
those which have been seized in
execution. But it is argued inas-
much as this assignment contem-
plates the insolvency of the debtor,
and would only be made if he were
insolvent, such a provision purports
to deal with insolvency, and there-
fore is a matter exclusively within
the jurisdiction of the Dominion
Parliament. Now it is to be ob-
served that an assignment for the
general beneﬁt of creditors has long
been known to the jurisprudence of
this country and also of Canada,
and has its, force and effect at com-
mon law quite independently of
any system of bankruptcy or insol-
vency or any legislation relating
thereto. So far from being re-
garded as an essential part of the
bankruptcy law, such an assign-
ment was made an act of bank-
ruptcy on which an adjudication
might be formed, and by the law
of the province of Canada which
prevailed at the time when the
Dominion Act was passed, it was
one of the grounds of an adjudica-
tion of insolvency. It is to be
observed that the word ‘bank—-
ruptcy’ was apparently not used
in Canadian legislation, but the
insolvency law of the province of
Canada was precisely analagous to
what was known in England as
the bankruptcy law. lvforeover,
the operation of an assignment
for the beneﬁt of creditors was
precisely the same, whether the
assignor was or was not in fact
insolvent. It was open to any
debtor who might deem his insol-
vency doubtful, or who desired in
that case that his creditors should
be equitably dealt with, to make
an assignment for their beneﬁt.
The validity of the assignment and
its effect would in no way depend
on the insolvency of the assignor,
and their Lordships think it clear
that the 9th section would equally
apply whether the assignor was
or was not insolvent. Stress was
laid on the fact that the enact-
ment relates only to an assignment
under the Act containing the sec—
tion, and that the Act prescribes
that the sheriff of the county is to
he the assignee unless a majority
of the creditors consent to some
other assignee being named. This
does not appear to their Lordships
to be material. If the enactment
would have been intra ‘wires sup-
posing section 9 had applied to
all assignments without these re-
strictions, it seems diﬂicult to con-
tend that it becomes ultra. rires by
reason of them. Moreover, it is to be
observed that by sub-see. 2 of sec.
3, assignment for the beneﬁt of
creditors not made to the sheriff or
to other persons with the prescribed
consent, although they are rendered
void as against assignments so
made, are nevertheless, unless and
until so avoided, to be ‘ subject in
other respects to the provisions of
the Act.’ At the time when the
B. N. A. Act was passed bank-
ruptcy and insolvency legislation
existed, and was based on very
similar provisions both in Great
Britain and the province of Canada.
The English Act then in force was
that of 1861. That Act applied
to traders and non-traders alike.
Prior to that date the operation of
the Bankruptcy Acts had been
conﬁned to traders. The statute
relating to insolvent debtors other
than traders had been designed to
provide for their release from cus-
tody on their making an assign~
ment ofﬁthe whole of their estate
for the beneﬁt of their creditors.
It is not necessary to refer in de-
ATT.-GEN. or
ONTARIO 'v.
A'I'T.-GEN. or
DOMINION.
80 ‘ B.N.A. Ao'r, S. 91 (21).-APP-EALS To P. c.
ATT.-GEN. or
ONTAmo 'v.
A'rT.-GEN. or
DOMINION.
CUsmNu v.
tail to the provisions of the Act of
1861. It is enough to say that it
provided for a legal adjudication in
bankruptcy, with the consequence
that the bankrupt was divested of
all his property and its distribution
amongst his creditors was provided
for. It is not necessary in their
Lordships’ opinion, nor would it be
expedient, to attempt to deﬁne what
is covered by the words ‘ bank-
ruptcy’ and ‘ insolvency ’ in section
91 of the B. N. A. Act. But it
will be seen that it is a feature com-
mon to all the systems of bank—
ruptcy and insolvency to which
reference has been made, that the
enactments are designed to secure
that in the case of an insolvent
person his assets shall be rateably
distributed amongst his creditors,
whether he is willing that they
shall be so distributed or not. Al~
though provision may be made
for a voluntary assignment as an
alternative, it is only as an alter-
native. In reply to a question put
by their Lordships, the learned
counsel for the respondent were
unable to point to any scheme of
bankruptcy or insolvency legisla-
tion which did not involve some
power of compulsion by process of
law to secure to the creditors
the distribution amongst them of
the insolvent debtor’s estate. In
their Lordships’ opinion these con-
siderations must be borne in mind
when interpreting the words ‘ bank-
ruptcy’ and ‘insolvency’ in the
B. N. A. Act. It appears to their
Lordships that such provisions as
are found in the enactment in
question, relating as they do to
assignments purely voluntary, do
not infringe on the exclusive legis-
lative power conferred on the Do-
minion Parliament. They would
observe that a system of bank-
ruptcy legislation may frequently
require various ancillary provisions
for the purpose of preventing the
scheme of the Act from being de-
feated. It may be necessary for
this purpose to deal with the effect
of executions and other matters
which would otherwise be within
the legislative competence of the
provincial legislature. Their Lord-
ships do not doubt it would be
open to the Dominion Parliament
to deal with such matters as part
of a bankruptcy law, and the pro-
vincial legislatures would doubtless
be then precluded from interfering
with this legislation, inasmuch as
such interference would affect the
bankruptcy law of 'the Dominion
Parliament. But it does not fol-
low that such subjects as might
properly be treated as ancillary to
such a law, and therefore within
the powers of the Dominion Par-
liament, are‘ excluded from the
legislative authority of the pro-
vincial legislature when there is
no bankruptcy or insolvency legis-
lation of the Dominion Parliament
in existence.” Decision appealed
from reversed. [See full report,
sub~sec. 3, sec. 92.]
CUSHING r. DUPUY, in Q. B.
Quebec, 22 Mar. 1878, 22 L. C.
J. 201; in P. C. April 15, 1880,
5 App. Cas. 409; 49 L. J. P. C.
63; 42 L. T. 445, was an appeal
from a judgment of the Queen’s
Bench, Quebec, reversing a judg-
ment of the superior court, which
had been given in the appel-
lant’s favour, in certain insol-
vency proceedings instituted under
the Dominion Act respecting insol-
vency, 38 Vict. c. 16. In these
the appellant sought to obtain an
order that the respondent, the
ofﬁcial receiver on the estate of
the insolvent ﬁrm, should deliver
up certain property seized by him
as such assignee under a writ of
attachment, on the ground that it
had been sold to the appellant. by
the insolvent-s before their insol-
vency. The appellant made an
application to the Queen’s Bench
for leave to appeal to Her Majesty
in Council, which was refused on
the ground that under the Insol-
vency Act its judgment was ﬁnal.
Bythe 128th sec. of the Insolvency
Act, 38 Vict. (Dom) c. 16., “In
B.N.A. ACT, s. 91 (21).--APPEALS BY PREROGATIVE. 81
the province of Quebec all decisions
[Reads 128th sec. Insolvency Act, CUSHING v.
by a judge in chambers in matters
38 Vict. (Dom) c. 16., and sec. DUPUY-
of insolvency shall be considered
as judgments of the superior court ;
and any ﬁnal order or judgment
rendered by such judge or court
may be inscribed for revision, or
may be appealed from by the
parties aggrieved, in the same cases
and in the same manner as they
might inscribe for revision or
appeal from a ﬁnal judgment of
the superior court in ordinary
cases under the laws in force when
such decision shall be rendered.”
By the 28th section of the 40
Vict. (Dom) c. 41., it is enacted that
the 128th section shall be amended
by adding thereto, “The judgment
of the court to which under this
section the appeal can be made
shall be ﬁna .” The court in the
province of Quebec is the Queen’s
Bench.
Sir Montague E. Smith, who
delivered the judgment of the
Privy Council [there being also
present Sir James Colvile, Sir
Barnes Peacock, and Sir Robert
Collier] said: “An application to
the Court of Q.B. Ontario for leave
to appeal to Her Majesty in Coun~
cil was refused on the ground that
under the Insolvency Act its judg-
ment was ﬁnal. The appellant
then presented a petition to Her
Majesty for special leave to appeal,
which Her Majesty was advised by
their Lordships to grant, reserving
to the respondent power to raise at
the hearing the question of her
jurisdiction to entertain the appeal.
That question, which has been
fully argued at the Bar, raises two
points: ﬁrst, whether the Court of
Queen’s Bench was right in holding
that the appeal to Her Majesty in
Council, given de jure by art. 1178
of the Code of Civil Procedure,
from ﬁnal judgments rendered on
appeal by that court is taken away
by the Insolvency Act; and,
secondly, if that be so, whether
the power of the Crown by virtue
of its prerogative to admit the
appeal is affected by that Act.”
S 2340.
28 of the amending Act, 40 Vict.
c. 41.] “ The latter is, ‘The judg-
ment of the court to which,
under this section, the appeal can
be made shall be ﬁnal.’ This court
in the province of Quebec is the
Court of Queen’s Bench. The whole
question turns on these added words,
and in considering their effect on
the right of appeal to the Crown
given de jure by the Code, two
things are to be regarded—(1) The
power of the Dominion Parliament
to abrogate this right; and (2) if it
had the power, whether it intended
to exercise it. The ﬁrst of these
‘questions depends upon the con-
struction of the B. N. A. Act, 1867,
which confers and distributes legis-
lative powers. By section 91 of that
Act, exclusive legislative authority
in certain matters is conferred upon
the Parliament of Canada; and by
section 92 exclusive authority in
certain others upon the provincial
legislatures. [Reads sec. 91 and
sub-sec. 21; sec. 92 and sub-secs.
13, 14.] It was contended for the
appellants that the provisions of the
Insolvency Act interfered with pro-
perty and civil rights, and was
therefore ultra wires. This objec-
tion was very faintly argued, but
it was strongly contended that the
Parliament of Canada could not
take away the right of appeal to
the Queen from ﬁnal judgments of
the Court of Queen’s Bench, which,
it was said, was part of the procedure
in civil matters exclusively assigned
to the legislature of the province.
The answer to these objections is
obvious. It would be impossible
to advance a step in the construc-
tion of a scheme for the adminis-
tration of insolvent estates without
interfering with and modifying
some of the ordinary rights of
property and other civil rights,
nor without providing some mode
of special procedure for the vesting,
realization, and the distribution of
the estate, and the settlement of the
liabilities of the insolvent. Pro-
F
82 B.N.A. ACT, s. 91 (21).-THE wonn “FINAL.”
Cusnmo v.
DUPUY.
cedure must necessarily form an
essential part of any law dealing
with insolvency. It is therefore to
be presumed, indeed it is a neces-
sary implication, that the Imperial
statute, in assigning to the Do-
minion Parliament the subject of
bankruptcy and insolvency, inten-
ded to confer on it legislative
power to interfere with property,
civil rights, and procedure within
the provinces so far as a general law
relating to those subjects might
affect them. Their Lordships
therefore think that the Parlia-
ment of Canada would not infringe
the exclusive powers given to the
provincial legislatures, by enacting
that the judgment of the Court
of Queen’s Bench in matters of
insolvency should be ﬁnal, and
not subject to the appeal as
of right to Her Majesty in Coun-
cil allowed by article 1178 of
the Code of Civil Procedure. Nor,
in their Lordships’ opinion, would
such an enactment infringe the
Queen’s prerogative, since it only
provides that the appeal to Her
Majesty given by the Code, framed
under the authority of the pro-
vincial legislature, as part of the
civil procedure of the province,
shall not be applicable to judg-
ments in the new proceedings in
insolvency which the Dominion
Act creates. Such a provision in
no way trenches on the Royal pre-
rogative.”
“Then it was contended that if
the Parliament of Canada had the
power, it did not intend to abolish
the right of appeal to the Crown.
It was said that the word ‘ ﬁnal’
would be satisﬁed by holding that
it prohibited an appeal to the
Supreme Court of Canada estab-
lished by the Dominion Act of 38
Vict. c. 11. Their Lordships think
the effect of the word cannot be so
conﬁned. It is not reasonable to
suppose that the Parliament of
Canada intended to prohibit an
appeal to the Supreme Court of Ap-
peal recently established by its own
legislation, and to allow the right
of immediate appeal from the Court
of Queen’s Bench to the Queen to
remain. Besides, the word ‘ﬁnal’
has been before used in colonial
legislation as an apt word to ex-
clude in certain cases appeals as of
right to Her Majesty. [See Lower
Canada Act, 34 Geo. 3. c. 6. s. 30.]
Such an eﬁect may, no doubt, be
excluded by the context, but there
is none in the enactment in ques-
tion to limit the meaning of the
word. For these reasons their
Lordships think that the judges
below were right in holding that
they had no power to grant leave
to appeal. The question of the
power of the Queen to admit the
appeal as an act of grace, gives
rise to different considerations. It
is, in their Lordships’ view, un-
necessary to consider what powers
may he possessed by the Parlia-
ment of Canada to interfere with
the royal prerogative, since the 28th
section of the Insolvency Act does
not profess to touch it; and they
think, upon the general principle
that the rights of the Crown can
only be taken away by express
words, that the power of the Queen
to allow this appeal is not aﬁected by
that enactment. In consequence,
however, of the decision in Cuvillier
'r. Aylwin, 29 Nov. 1832, 2 Knapp’s
P. C. '72-, which has been relied 011
as an authority opposed to this
view, it became necessary to review
that case in connection with subse-
quent decisions on the subject.
The question in Cuvillier v. Ayl-
win arose upon the Lower Canada
Colonial Act, 34: Geo. 3. c. 6. s. 30,
which enacted that the judgment
of the Court of Appeal should be
ﬁnal in all cases under the value af
£500, and an application for
special leave to appeal in a case
under that value was refused by a
Committee of the Privy Council.
The remarks attributed to the
Master of the Rolls [Leach] in his
judgment rejecting the petition are
directed to one aspect only of
the question, namely, the power
of the Crown with the other
B.N.A. ACT, s.91(21).-—CAIRNS, L.c., 0N PREROGATIVE. 83
‘the appeal as incompetent.
branches of the legislature to de-
prive the subject of one of his
rights. No allusion was made to
the principle that express words
are necessary to take away the
prerogative rights of the Crown,
nor to the provision contained in
the statute itself that nothing
therein contained shall derogate
from any right or prerogative of
the Crown. This case, moreover,
if not expressly overruled, has not
been followed, and later decisions
are opposed to it. [See post, s. 101.]
“In re Louis Marois, 8 Feb.
1862, 15 Moore’s P. C. 189,
upon an application for leave to
appeal from a judgment of the
Comt of Queen’s Bench for Lower
Canada, Lord Chelmsford, in giving
the judgment of this Committee,
after stating that in Cuvillier '0.
Aylwin the very point was de-
cided against the petitioner, said :
‘ If the question is,to be concluded
by that decision, this petition must
be at once dismissed; but upon
turning to the report of the case,
their Lordships are not satisﬁed
that the subject received that full
and deliberate consideration which
the great importance of it deman-
ded. The report of the judgment
of the Master of the Rolls is con-
tained in a few lines, and he does
not appear to have directly adverted
to the eﬁect of the proviso contain-
ed in the 43rd section of the Act
on the prerogative of the Crown.’
Leave to appeal was granted in
that case, subject to the risk of a
petition being presented to dismiss
Al-
though their Lordships, in granting
this leave, said that they desired
to intimate no opinion whether the
decision in Cuvillier v. Aylwin
could be sustained or not, it is
obvious that at the least they re-
garded it as being open to review.
In Johnston "0. the Ministers of
St. Andrew’s Church, in the courts
below, 18 L. J. C. 113; 1 S.
C. R. 235; in P. C. Dec. 10,1877,
3 App. 159; 37 L. J. P. C. 557;
26 W. R. 359; upon an appli-
cation for special leave to appeal Cusnme v.
against a judgment of the Supreme DUPUY-
Court of Canada, the effect of the
47th section of the Act establishing
that court, which enacted that its
judgment should be ﬁnal and con-
clusive, saving any right which
Her Majesty may be graciously
pleased to exercise by virtue of her
Royal prerogative, came in question,
and the Lord Chancellor [Cairns],
in giving the judgment of this Com-
mittee, said : ‘Their Lordships
have no doubt whatever that, as-
suming, as the petitioners do
assume, that their power of appeal
as a matter of right is not con-
tinued, still that Her Majesty’s
prerogative to allow an appeal if
so advised is left entirely un-
touched and preserved by this sec-
tion.’ Although leave to appeal
was in this instance refused, on the
ground that the case was not a
proper one for the exercise of the
prerogative, the opinion cited above
is virtually opposed to the decision
in Cuvillier 'b. Aylwin, where, it is
to be remembered, the action in
question likewise contained a saving
of the prerogative of the Crown.
Another case lately before the
Committee requires consideration.
Theberge and another c. Landry,
in Superior Court, Quebec, 29 May
1876, in P. C. 7 Nov. 1876, 2 App.
Cas. 102; 46 L. J. P. C. 1; 35
L. T. 640. It was an application
for special leave to appeal against
a judgment of the Superior Court
of Quebec upon an election pe-
tition, by which the applicant had
been unseated for corrupt practices.
By the Quebec Controverted
Elections Act, 1875, 38 Vict. c. 8.,
the decision of controvered elec-
tions, which formerly belonged to
the legislative assembly itself, was
conferred upon the superior court,
and by sec. 90 of the Act it was
enacted that the judgment of that
court sitting in review should not
be susceptible of appeal. It was
held by this Committee that there
was no prerogative right in the
Crown to review the judgment of
F2
84 B.N.A. ACT, s. 91 (21).—INSOLVENGY or LoCALs.
CUSHING v.
DUPUY.
L’UNIoN ST.
JACQUES DE
MoNTREAL r.
BELISLE.
the superior court upon an election
petition, and the application was
refused. This decision turned on
the peculiar nature of the jurisdic-
tion delegated to the superior court,
and not merely on the prohibitory
words of the statute. It was dis-
tinctly and carefully rested on the
ground of the peculiarity of the
subject-matter, which concerned
not mere ordinary civil rights, but
rights and privileges always regard-
ed as pertaining to the legislative
assembly in complete independence
of the Crown, so far as they proper-
ly exist; and consequently, it was
held that, in transferring the de-
cision of these rights from the
assembly to the superior court it
could not have been intended that
the determination in the last resort
should belong to the Queen in
Council. But whilst coming to this
decision, the Lord Chancellor
[Cairns], in giving the judgment
of the Committee, aﬂirmed the
general principle as to the preroga-
tive of the Crown. ‘Their Lord-
ships wish to state distinctly that
they do not desire to imply any
doubt whatever as to the general
principle that the prerogative of the
Crown cannot be taken away ex-
cept by express words; and they
would be prepared to hold, as often
as has been held before, that in any
case where the prerogative of the
Crown has existed, precise words
must be shown to take away that
prerogative.’ It was not suggested
that an appeal would not have lain
to the Queen in Council under the
Insolvency Act, 1875, and it was
not until two years afterwards that
the amending Act of 1877, which
is said to have taken it away, was
passed. The learned counsel for
the appellant drew attention to the
Act of the Parliament of Canada,
31 Vict. c. 1., which enacts rules of
interpretation to be applied to all
future legislation, when not inconsis-
tent with the intent of the Act or
the context. Sub-sec. 33 of sec. 7 of
that Act is as follows :--‘ No pro-
vision or enactment in any Act shall
aﬁect in any manner or way what-
ever the rights of Her Majesty,
her heirs or successors, unless it is
expressly stated therein that Her
Majesty shall be bound thereby.’
The Insolvent Acts are to be con-
strued with reference to this pro-
vision, which is substantially an
aﬁirmance of the general principle
of law already adverted to. Ap-
plying that principle to the enact-
ment in question, their Lordships
are of opinion that, as it contains
no words which purport to derogate
from the prerogative of the Crown
to allow as an act of grace appeals
from the Court of Queen’s Bench
in matters of insolvency, her au-
thority in that respect is unaffec-
ted by it. The order for leave to
appeal granted in the present case
will consequently stand.”
His Lordship then went into the
merits of the case, the result being
the affirmance of the decision ap-
pealed from.
In L’UNION ST. JACQUES DE
MONTREAL v. BELIsLE, 15 L.
C. J. 212, in Quebec Q. B. 20
Sept. 1872; in P. C. July 8,
1874, L. R. 6 P. C. 31; 31 L. T.
111; 22 W. R. 933, it was held
by the Judicial Committee, revers-
ing the Court of Queen’s Bench,
appeal side, in Lower Canada, that
the Act of the provincial legisla-
ture of Quebec, 33 Vict. c. 58., to
relieve the ﬁnancial embarrassment
of a local society, related to “ a
matter merely of a local or private
nature in the province ” within
sec. 92 of the B. N. A. Act, 1867,
and as such was within the legisla-
tive capacity of the Quebec Pro-
vincial Legislature, and did not
fall within sec. 91—Bankruptcy
and insolvency.
There the respondent sued the
appellant society to recover an in-
stalment of an annuity to which
she was admittedly entitled under
the rules of the society. The ap-
pellant pleaded the provincial Act,
in which the society was authorized
to pay the respondent $200 in lieu
B.N.A. ACT, s. 91 (21)._wnvnnvc UP BY DOM.
85
of all beneﬁts, and if she refused to
accept it, to place it on deposit and
pay the respondent the interest.
The respondent contended that the
Act was unconstitutional.
Lord Selborne, in delivering the
judgment of the Committee, said
(p. 37 of L. R.) = “The fact that
this particular society appears,
upon the face of the Act, to have
been in a state of embarrassment,
and in such a ﬁnancial condition
that, unless relieved by legislation
it might have been likely to come
to ruin, does not prove it was in
any legal sense within the category
of insolvency; and, in point of
fact, the whole tendency of the Act
is to keep it out of that category,
and not to bring it into it. The Act
does not terminate the company, it
does not propose a ﬁnal distribution
of its assets on the footing of insol-
vency or bankruptcy: it does not
wind it up. On the contrary, it
contemplates its going on, and
possibly, at some future time, re-
covering its prosperity, and then
these creditors, who seem on the
face of the Act to be somewhat
summarily interfered with, are to
be reinstated.”
On sec. 92, Lord Selborne said
(p. 35): “The scheme of the 91st
and 92nd secs. is this. By the 91st
see. some matters—and their Lord-
ships may do well to assume, for the
argument’s sake, that they are all
matters except those afterwards
dealt with by the 92nd section—
their Lordships do not decide it—
certain matters, being upon that as-
sumption all those which are not
mentioned in the 92nd section, are
reserved for the exclusive legislation
of the parliament of Canada, called
the Dominion Parliament; but be—
yond controversy there are certain
other matters, not only not reser-
ved for the Dominion Parliament,
but assigned to the exclusive power
and competency of the provincial
legislature in each province.
Among those the last is thus ex-
pressed-—‘ generally all matters of
a merely local or private nature in
the province.’ If there is nothing
to control that in the 91st section,
it would seem manifest that the
subject-matter of this Act, 33 Vict.
c. 58., is a matter of mere local or
private nature in the province, be-
cause it relates to a benevolent or
beneﬁt society incorporated in the
city of Montreal, within the pro-
vince, which appears to consist
exclusively of members who would
be subj ectprimc'ifacie to the control
of the provincial legislature.” .
“Clearly this matter is private;
clearly it is local, so far as locality
is to be considered. And
unless, therefore, the general effect
of that head of sec. 92 is for this
purpose qualiﬁed by something in
sec. 91, it is a matter not only
within the competency, but within
the exclusive competency of the
provincial legislature. Now see. 91
qualiﬁes it undoubtedly, if it be
within one of the different classes
of subjects there specially enume-
rated, because the last concluding
words of sec. 9l-——[reads the end of
sub-sec. 29, sec. 91]. But the
onus is on the respondent to show
that this, being of itself of a local
or private nature, does also come
within one or more of the classes
of subjects specially enumerated in
the 91st section.” See this case ap-
proved in Dow 21. Black, ante, p. 67.
In QUIET v. THE QUEEN, Nov.
16, 1891, 19 S. C. R. 510, see 17
O. A. R. 421; 17 O. R. 615, it
was held the Dominion Parlia-
ment was within its rights in pass-
ing Acts (1) incorporating trustees
and giving them (31 Vict. c. 17.)
authority, so far as necessary for
the winding-up, to carry on the
Bank of Upper Canada, then insol-
vent; and (2) transferring (33
Vict. c. 40.) to the Dominion Go-
vernment all the property of the
bank vested in the trustees. It
was held, secondly, that after the
property of this bank became
vested in the Dominion Govern-
ment, a piece of land included there-
L’UNIoN Sr.
JACQUES DE
MoNrREAL v.
BELIsLE.
QUIRT v. THE
QUEEN.
86
B.N.A. ACT, s. 91 (21).--WINDING-UP BY LEGIS.
QUIRT v. THE
QUEEN.
in was not liable to taxes, it having
become Crown land.
Sir W. Ritchie, C.J., said:
“I cannot see 110w it can be con-
tended that an Act for the settle-
ment of the affairs of the Bank of
Upper Canada, an insolvent insti-
tution, is ultra wires of the Parlia-
ment of Canada, to which body is
conﬁded the exclusive authority to
deal with and legislate on banking,
incorporations of banks and bank-
ruptcy, and insolvency. If this
is so, I think it equally clear
that the legislature of Ontario
could pass no Act repealing, al-
tering, or interfering with the pro-
visions of the Act, and so could not
have passed an Act similar in its
terms to the 33 Vict. c. 40., ‘An
Act to vest in the Dominion, for
the purposes therein mentioned,
the property and powers now ves-
ted in the trustees of the Bank of
Upper Canada.’ Therefore, it
necessarily follows that the legisla-
tive power to do so belongs to the
Dominion Parliament alone.”
Strong, J., rested his opinion
on the 2lst sub-sec, sec. 91.
That sub-section “ gives to Parlia-
ment the exclusive power to pass
laws relating to bankruptcy and
insolvency. That the Acts of
Parliament in question come
within the literal meaning of these
terms appears to me very plain.
The bank was insolvent, and the
realization and distribution of its
assets was a matter consequent
upon that insolvency. The only
reasonable ground upon which such
enactments as these under con-
sideration could be rejected from
the -category of bankruptcy and
insolvency statutes authorized by
sec. 91, sub-sec. 21, would be that
they were special and not general
laws, and therefore were to be
considered as assigned to the pro-
vincial legislature under the 16th
sub-sec., sec. 92, which authorizes
legislation on matters of a local
and private nature within the pro-
vince. The answer to this, how-
ever, is that any matter which
comes within the terms of any of
the subjects enumerated in sec. 91,
although in other respects it might
be classed under the head of local
and private legislation, is expressly
excepted from the powers of the.
provincial legislatures by the last
sub-section of sec. 91. [Reads it]
Then it is said this class of legisla-
tion is appropriated to the pro-
vinces under the head of ‘ property
and civil rights.’ This argument,
however, would prove too much,
since general legislation in matters
of bankrupty and insolvency, which
sub—sec. 21 undoubtedly confers on
the Dominion, must always be an
interference with property, then it
can hardly be said that such special
legislation as this respecting a bank
incorporated under the statutes of
the Dominion would be within the
competency of a provincial legisla-
ture; the incongruity of such a
construction, when we consider
that the right to incorporate banks
is exclusively in the Dominion,
would alone be fatal to such con-
tention, more especially as the Act
of Incorporation itself might well
provide for the winding-up of a
particular bank in case of insol-
vency.” As to the case of Union
St. Jacques v. Belisle [see above],
his Lordship said: “So far from
that being an authority for 'the
appellant, it supports the conclusion
I have reached. The Act of the
Quebec Legislature questioned in
that case was held to be intra wires
upon the distinction expressly taken
in the judgment that it was not
an Act providing for a winding-
up as in the case of bankruptcy or
insolvency, but was rather an
enactment designed for the pur-
poses of avoiding such a result. I
therefore consider the Privy Coun-
oil as indicating that a special
statute providing for the winding-
up of an incorporated company
would be bankruptcy or insolvency
legislation. Next it is said the in-
terest vested in the Crown under
the mortgage made by Anderson is
liable to taxation under the Ontario
B.N.A. ACT, s. 91 (21).-—INSOLVENT FOREIGNERS. 87
Assessment Act.” His Lordship
agreed it was not liable, and con-
tinued: “All property vested in the
Crown is exempt from taxation un—
less made liable by some express en-
actment. N o statute can be pointed to
making the beneﬁcial interest, which
the Crown, as mortgagees, undoubt-
edly had in these lands, liable to
assessment for taxes, and that is sufﬁ-
cient to dispose of the case. I am
also of opinion, in the absence of
express enactment, no difference
ought to be made between property
vested in the Crown as a trustee
and that in which it had a beneﬁcial
interest. The Crown is entitled to
the prerogative of priority of pay-
ment out of assets, even though it
sues as a mere trustee, as in the
case of an action on a recognisance
given for the beneﬁt of subjects,
and I can see no reason why the
analogy should not prevail in the
present case. However, the Crown
is far from being a mere trustee in
this case. The statute of 1870
(33 Vict. c. 40.) recites that it is
the largest creditor; it therefore has
a beneﬁcial interest in the assets of
the bank.”
In ALLEN v. HANSON, Dec. 11,
1890, appeal from Q. B., Quebec,
16Q.L.R.79; 18 S.C.R.667,itwas
held the Dom. Winding-up Act, R.
S. C. c. 129. (4'7 Vict. c. 39.), which
provides that the Act “ shall apply
to incorporated trading companies
doing business in Canada whereso-
ever incorporatet ,” and “ which are
insolvent,” was intra wires of the
Dominion; and that a winding~up
order of the Scottish Canadian
Asbestos Co. under the provision
of the above Act was good. The
company in question was incorpo-
rated under the Imperial Companies
Acts, 1862-7, having its head oiﬁce
in Glasgow, Scotland, but its chief
business was carried on at Artha-
baska, in Canada. Proceedings
had been taken in Scotland for the
winding-up of its affairs.
Sir W. Ritchie, C.J., after citing
Matheson Bros, 27 Ch. D. 225, and
In re Commercial Bank of South ﬁLLYEN Australia, 33 Ch. D. 174, said: M501"
“ There is jurisdiction to make this
winding-up order, which would be
ancillary to the winding-up in Scot-
land, for the purpose of getting in
the Canadian assets and settling the
list of Canadian creditors, as in re
Corsellis, 33 Ch. D. 160, the wind-
ing-up in England was ancillary to
winding-up in Australia for the
same purpose, and there need not
be, and should not be, any conﬂict
between the two courts.”
His Lordship then distinguished
the case of Merchants’ Bank of
Halifax v. Gillespie, 16 March,
1884, 10 S. C. R. 312, a case
arising under the Dominion Wind-
ing-up Act of 1882, 45 Vict. c. 23.,
which Act did not contain the
above words. Those words were
added by the 47 Vict. c. 39. s. 1,
which repealed the 1st section of
45 Vict. c. 23., but re-enacted the
section with the added words.
It was held there that the Do-
minion Parliament Act, 45 Vict.
c. 23., was not intended to ap-
ply to a company incorporated
under the Imperial Joint Stock
Companies Acts, although holding
its chief property in Canada. Con-
tinuing, his Lordship said: “ Inas-
much, then, as the Dominion
statute declares that the Winding-
up Act now applies to all com-
panies which are doing business in
Canada, and no matter where in-
corporated, there can be no doubt
of the intention of Parliament to
apply the Winding-up Act to
foreign as well as domestic incor—
porated companies, and as I think
such an enactment is within the
legislative power of the Dominion
Parliament, and it being admitted
that this company was carrying on
its business and held valuable lands
in Canada, and was insolvent, and
as the provisions of the English
Companies Act, 1862, are held to
apply to foreign companies carrying
on business in England, and are
worked out as nearly as may be, or
left not worked out, as the exigen-
88
B.N.A. ACT, s. 91 (22)._-DOM. PATENT LAW.
ALLEN v.
HANsoN.
SCEooLERED v.
CLARKE.
SMITH e.
GOLDIE.
cies of the case dealt with require;
and inasmuch as the greater part
of the assets of this company would
seem to be in Canada, there is more
reason why the property within the
territorial limits of the urisdiction
of the Courts of Canada should be
dealt with under the provisions of
the Canadian Act; in fact, it is
diﬁicult to see how such property
could be dealt with by the English
liquidators; and inasmuch as in
this case it appears the liquidators
under the English Act are acting in
concert with the liquidators under
the Canadian Act, I can see no
reason for supposing that any con-
ﬂict can possibly arise whereby this
stockbroker can be in any way
damniﬁed. On the contrary, it
appears to me that this is the most
satisfactory way by which the com—
pany can be wound up, and its
assets realised for the beneﬁt of the
company and all the parties inter-
ested. It by no means follows
that because all the provisions of the
Act may not be applicable to foreign
cases that those portions which are
should not be acted on.”
It was held in SCHOOLBRED e.
CLARKE, June 12, 1890,17 S. C. R.
265; and below 16 O.A.R. 161; 14
O.R.618 ; that a company incorpo-
rated by the Ontario Legislature may
be put into compulsory liquidation
under the Dominion Winding-up
Act, 1887, R. S. C. c. 129., which
consolidated and amended the 45
Vict. c. 23. and 47 Vict. c. 39.
The question was raised in SHIELDS
v. PEAK, May 1, 1882, 8 S. C. R.
579, whether the Dominion Parlia-
ment could attach a penalty to
traders and domiciled inhabitants of
Canada making purchases, with in-
tent to defraud, outside the Domi-
nion. Votes equal. There Ritchie,
C.J., said : “ So soon as a debtor be-
comes insolvent and subject to any
bankrupt or insolvent law passed
by the Dominion Parliament, and
proceedings are taken against him
and his estate, under the provisions
of such enactments, the provincial
legislature ceases to have jurisdic-
tion over his civil rights, either in
relation to the disposition of his in-
solvent estate or in relation to his
dealings with his creditors, or their
rights or remedies against his per-
son or estate.”
(22.) Patents of invention and discovery.1
1 See American Constitution,
art. 1. s. 8.
See Tennant '0. Union Bank of
Canada, P. C. Dec. 9, 1893, [1894]
A. C. 31; 63 L. J. P. C. 25; 69
L. T. 774. That laws made by
the Dominion Parliament on these
subjects are paramount, “and it
would be practically impossible for
the Dominion Parliament to legis-
late upon either of these subjects
without affecting the property and
civil ’ rights of individuals in the
provinces.” See Lord Watson
[ibid.; see also see. 91, sub-sec 14].
In SMITH o. GOLDIE, June 19,
1882., 9 S. C. R. 46, reversing 7
O. A. R. 628, it was held a patent
for a continuation of known inven-
tions, the continuation being novel
and useful, was valid. It was there
also held that to be entitled to a
patent in Canada, the patentee
must be the ﬁrst inventor in Can-
ada or elsewhere. Sec. 28 of the
Dominion Patent Act, 35 Vict.
c. 26., provided that every patent
shall be subject to the condition that
at the end of two years from its
date it shall be null and void unless
the patentee shall within that
period have commenced and thence
continuously carried on the manu-
facture of the invention in Canada,
and should also be void if, after the
expiration of 12 years from the
patent’s date, the patentee imports
the invention into Canada, “ Pro-
vided always that in case disputes
B.N.A. ACT, s. 91 (22).——DECISION OF PAT. COM.
89
should arise as to whether a patent
has or has not become null and
void under the provisions of this
section, such disputes shall be
settled by the Minister of Agricul-
ture or his deputy, whose decision
shall be ﬁnal.” Henry, J ., said:
“ After a lengthened and exhaustive
investigation, in which both parties
were represented by very able coun-
sel before Mr. Taché, the Deputy
Minister of Agriculture, he, in‘ a
very logical and sound judgment,
in which he reviewed the law and
commented on the evidence, deci-
ded that Smith had not forfeited
his patent rights or any of them in
any of the three patents. The
statute makes his decision ﬁnal;
and, in view of the whole subject,
I have arrived at the conclusion
that Parliament intended that it
should be so; and that it was in-
tended solely as a matter for minis-
terial and not for judicial deter-
mination. But in case of any
doubt, on that subject, I will add
that, having well considered the
case as presented before him, I
would have come to the same con-
clusion as he did.”
In re BELL TELEPHONE Co.,
Nov. 21, 1884, 7 O. R. 605, the
question was raised whether section
28 of the Dominion Patent Act,
35 Vict. c. 26., was ultra 'Ui’l‘GS as
creating a court of justice of civil
jurisdiction, infringing sub-secs. 13
and 14, sec. 92, B. N. A. Act.
Osler, J .A., said: “ If the duties
of the minister are executive
merely, then beyond question pro-
hibition does not lie; Chabot 71.
Lord Morpeth, 15 Q. B. 446-459.
On the other hand, if the minister
has been legally constituted a forum
or tribunal for determining these
questions, and he is not exceeding
his jurisdiction, I have nothing to
do with the nature of its constitu-
tion, nor am I at liberty to say that
it is less a court or tribunal because
some of the powers usually ‘con-
ferred upon a court are wanting, or
because the machinery is defec-
tive (if it be so), or its modes In 1'6 BELL
of ascertaining and acting upon
facts different from those em-
ployed in the ordinary tribunals of
the country. Therefore it is be-
side the question to urge that there
is no power to summon witnesses
or to examine them on oath, or
that the court is one of original
jurisdiction from which there is no
appeal, and thus in its very consti-
tution foreign to the spirit of our
laws, as Lord Abinger observed in
ex parte Smyth, 2 C. M. & R.
748 ; Lord Camden '0. Home, 4 TB.
382. If the tribunal and the power
to constitute it exist, then so long
as it is acting within its jurisdiction
there is no ground for prohibition.
“ It appears to me that the minis-
ter has been constituted a judicial
tribunal empowered to decide in rem
upon the status of the patent. There
are found the three constitutional
elements of a court—The plaintiff,
the party who asserts the nullity; the
defendant, the patentee who aﬁirms
the validity of the patent; and the
judge in the person of the minister
empowered to inquire into the facts
to determine the law, and to de-
clare the result by a deﬁnite decree.”
Then, after quoting an opinion
of a former Minister of Agricul-
ture, J. C. Taché, that the con-
stitution of this tribunal is not of
an unknown character, such juris-
diction being given in many coun-
tries, and that notwithstanding the
tribunal was not restricted by strict
rules of practice, yet it was never-
theless bound to abide the rules of
common justice, the learned judge
continued : “ It is not for me to ex-
press an opinion as to the wisdom
of the policy which dictates the
formation of such a tribunal in a
country and among a people like
ours, accustomed to yield obedience
to laws administered through known
forms and by courts having powers
to compel the attendance and to
sift the evidence of witnesses.
On this branch of the case I have
no doubt that, as the ministers’ pro-
ceedin gs are of a- judicial character,
TELEPHONE Co.
90 B.N.A. ACT, s. 91 (22).—-MINISTERIAL OR JUDICIAL.
In re BELL
TELEPHONE Co.
prohibition will lie, if the section is
ultra 'vz'res, or if he is exceeding
the jurisdiction conferred upon him
thereby.” Warwick Canal Co. '0.
Birmingham Canal Co., 5 Ex. D.
1; 48 L. J. Ex. 550; 40 L. T.
846. South Eastern Railway Co.
12. Railway Commissioners, 1881, 6
Q. B. D. 586; 50 L. J. Q. B.
201; 44 L. T. 203. North L.
Railway Co. '0. Great Northern
Railway Co., 22 Feb. 1883, 11
Q. B. D. 30; 52 L. J. Q. B. 380;
48 L. T. 695; 31 W. R. 490.
Reg. '0. Local Government Board,
Nov. 6, 1882, 10 Q. B. D. 309;
52 L. J. M. C. 4; 48 L. T. 173;
31 W. R. 72. Cote 1). Morgan, 7
S. C. R. 1. Poulin u. Corporation
of Quebec, 9 S. C. R. 185. “The
next question is whether the sec-
tion under consideration is ultra
rz'res the Parliament of Canada.
Under the B. N. A. Act, section
91, the exclusive authority of the
Parliament of Canada extends to
all matters coming within the
classes of subjects, inter alia, sub-
sec. 22, ‘patents,’ &c.”
“ Property and civil rights with-
in the province, and the ad-
ministration of justice, includ-
ing the establishment, &c., of
provincial courts, are the matters
assigned exclusively to the pro-
vincial legislatures. Nevertheless,
as regards property and civil rights,
it is settled that the parliament
may legislate where it becomes
necessary to do so for the purpose
of legislating generally and effect-
ually in relation to matters within
their own legislative authority.
Cushing 'v. Dupuy, 5 App. Cas.
409-415 [see sub-sec. 21, sec. 91] ;
Valin v. Langlois, 3 S. C. R. 1,
5 App. Cas. 115 [see sec. 41];
Citizens’ Insurance Co. 1). Parsons,
7 App. Cas. 96, 107, 108, 109 [see
sec. 92, sub-sec. 13]. Patents of
invention, &c., though property
and civil rights in the province in
which the holder may be domiciled,
yet confer rights exercisable in any
province of the. Dominion, and all
legislation on the subject is from its
very nature, in a high degree, a
matter of policy of the general
Government.” And his Lordship
quoted Mr. Taché—‘ The intention
of the legislature, as shown by the
policy of the legislation, is evidently
to guard against the danger of
Canadian patents granted to aliens,
being made instrumental to secure
the Canadian market in favour of
foreign patents to the detriment of
Canadian industry, for, in the mea-
sure that the right of taking patents
was extended, the remedy against
the dreaded danger was made more
ample, but at the same time the
jurisdiction over such cases of
disputes as might arise, was
transferred from judicial tribunals
to the administrative tribunal.’
His Lordship continued: “This,
I think, is what Henry, J ., is re-
ferring to, when in Smith v. Goldie,
9 S. C. R. p. 68 [see abore], he
speaks of the matter being solely a
matter of ministerial and not judi-
cial determination—‘ evidently for
the purpose of avoiding an over-
strict application of the provisions
made against the possible evil of a
patent being taken for the sole pur-
pose of depriving Canada from the
use of a useful invention. The 28th
section is also intended as a sort of
protective policy in favour of Can-
adian labour. The legislature has
certainly not without intention pro-
vided for a kind of paternal tri-
bunal formed by the Commissioner
of Patents, the natural protector of
patentees, which intention can be
no other than that every case
should be adjudicated upon in a
liberal manner.’ Upon the best
considerations I have been able to
give to the subject, I am of
opinion that the section [28] is not
ultra 'vz'res, or in conﬂict with the
powers assigned to the provincial
legislatures. Though property and
civil rights, it is yet one of parlia-
mentary creation, and I see no rea-
son why the same power which gave
it birth and limits the term of its
existence should‘ not also, as a
matter of policy, and for the purpose
B.N.A. ACT, s. 91 (23).——ENGLISH AUTHOR.
91
of eﬁectual legislation on the sub—
ject, also provide a special mode of
inquiring into and deciding upon the
question whether the conditions
upon which it was granted, to
which it was expressly to be sub—
ject, and on which its existence
depends, have been complied with.
I cannot on principle distinguish
this legislation from many of the
instances referred to by Ritchie,
C.J., in Valin v. Langlois, 3
S. C. R. l, in which judicial
powers are conferred, in some cases
on individual judges, in others on
provincial courts, to administer re-
lief arising under Dominion Acts.
I may refer, inter ali a, to the follow-
ingz—The Public Works Act, 31
Vict. c. 12. s. 48, provides that the
costs in awards under that Act shall
be taxed in some cases by the pro-
per officer of certain named courts,
in others by a udge of the supreme
courts. The Act for the settlement
of the affairs of the Bank of Upper
Canada, 31 Vict. c. 17., gives au-
thority to the Court of Chancery or
a judge thereof to make orders and
directions with reference to the
trust therein mentioned [see this
Act, sub-sec. 21]. The 31 Vict.
c. 23., an Act to deﬁne the privi-
leges of the House of Commons, &c.,
makes provision for the immediate
stay of, and putting an end to, all
proceedings, civil or criminal, upon
the certiﬁcate of the Speaker in cer-
tain cases. The Act relating to
banks and banking, 34 Vict. c. 5.,
(23.) Copyrights.1
1 See American Constitution,
art. 1. 8.
In SMILES v. BELFORD, March
1877, 1 O. A. R. 436, it was
held, affirming the judgment of
Proudfoot, V.C., 23 Grant, 590,
that it is not necessary for the
author of a British book who has
duly copyrighted the work in Eng-
land under 5 & 6 Vict. c. 45., to
copyright it again in Canada under
enables the superior courts of law In re BELL
and equity to adjudicate in a sum- TELEPHONE 00-
mary manner upon the right of
parties legally entitled to shares,
&-c. See Re Bank of Ontario, 44
U. C. Q. B. 247. The Public
Lands Act, 35 Vict. c. 23., pro-
vides for a summary remedy on
application to a judge of any court
having competent jurisdiction, in
cases respecting real estate, for the
delivery of land on proof to his
satisfaction that land forfeited
should properly revert to the
Crown. So in the very Act in ques-
tion we ﬁnd provisions made with
regard to actions for the infringe-
ment of patents, and impeaching
them by sci. fa., &c., in the pro-
vincial courts and the powers of
such courts, and the procedure in
the action. See Aitcheson v.
Mann, 9 Prac. R. 253. Except that
the power has been conferred upon
the Minister of Agriculture instead
of a judge or a court 60 nomine, and
that no mode of procedure has been
provided, I do not see any real dis-
tinction between this case and many
others of which the foregoing are
examples. I have considered
whether section 28 could be re-
stricted to cases where parties go
before the minister by consent; I
do not see my way to so holding.
The jurisdiction of the minister is
concluded, so far as I am concerned,
by the decision of the Supreme
Court in Smith v. Goldie, 9 S. C. R.
p. 68.”
the Copyright Act, 1875, with a
view of restraining a reprint of it
there; but if he desires to prevent
the importation into Canada of
printed copies from a foreign
country, he must copyright the
book in Canada.
The respondent published in
England the work “Thrift,” of
which he was the author, and
claimed the sole and exclusive
right of printing, &-c., throughout
SMILES v. BEL-
roan.
92 B.N.A. ACT, s. 91 (23).--IMP. COPYRIGHT ACTS.
SMILES v- BEL‘ Great Britain and Ireland and all
FORD.
the Colonies, 5 & 6 Vict. c. 45.
ss. 2, 29. By virtue of certain
Canadian statutes passed under
authority of the Imperial Act, 10 8t
11 Vict. c. 95., the respondent’s
rights were less in Canada than in
England, in that foreign reprints
of his book were, under authority
of the Canadian Acts, permitted to
beimported into Canada without the
consent of the respondent, upon pay-
ment of a certain duty for his bene-
ﬁt. The appellant contended that
the Imperial “ Canada Copyright
Act, 1875 ” (38 8539 Vict. c. 53.),
and the Queen’s Proclamation gave
the “Canadian Copyright Act,” 38
Vict. c. 88., the force of law in Can-
ada, notwithstanding the “ Colonial
Laws Validity Act” (28 8t 29
Vict. c. 63.), or the “Imperial
Copyright Act,” 5 & 6 Vict. c. 45.,
and to the extent of the Canadian
“ Copyright Act,” superseded the
Imperial Copyright Act of 1842
in Canada from 11 Dec. 1875, or
at all events, that the legislation
was cumulative, and if the Im-
perial Act is in force in Canada,
the provisions of the Canadian
Act are superadded, and must be
complied with to give copyright in
Canada, 38 8t 39 Vict. c. 53. s. 3.
Dow 21. Black, 5 March 1875, 6
L. R. P. C. 272; 44 L. J. P. C.
52; 32 L. T. 274. [See sub-
secs. 10 and 3, sec. 91.] L’Union
Jacques de Montreal '0. Belisle,
8 July 1874, L. R. 6 P. C. 31;
31 L. T. 111; 22 W. R. 933.
[See sub-sec. 21, sec. 91.]
Burton, J .A., referring to the
B. N. A. Act, said: “It is clear
that all the Imperial Act intended
to eifect was to place the right of
dealing with colonial copyright
within the Dominion under the
exclusive control of the Parliament
of Canada, as distinguished from
the provincial legislatures, in the
same way as it has transferred the
power to deal with banking, bank-
ruptcy, and insolvency, and other
speciﬁc subjects from the local
legislatures, and placed them under
the exclusive jurisdiction and con-
trol of the Dominion. I entirely
agree with the learned V.C. in the
opinion which he has expressed,
that under that Act no greater
powers were conferred upon the
Parliament of the Dominion to
deal with this subject than had
been previously enjoyed by the
local legislatures. By the 29th sec.
of the Imperial Act, 5 8t 6 Vict.
c. 45., that Act is extended to
every part of the British domi-
nions, and it was unsuccessfully
contended in Routledge 1). Low,
L. R. 3 H. L. 100, that Canada,
having a legislature of her own,
and not being directly governed
by legislation from England, was
not included in these general
words. The 15th section of that
Act prohibits Her Majesty’s colo-
nial subjects from printing or pub-
lishing in the colonies without the
consent of the author (whatever
may be their colonial laws) any
work in which there is copyright
in the United Kingdom. The
same Act prohibits the importing
into any part of the British pos-
sessions any foreign reprint of any
book ﬁrst written or published in
the United Kingdom entitled to
copyright there. This Act was
subsequently amended by the 10
8t 11 Vict. c. 95., and it was there
provided that in case the legis-
lature of any British possession
should be disposed to make due
provision for securing or protect-
ing the rights of British authors in
such possession, and should pass
an Act for that purpose, and trans-
mit the same to_the Secretary of
State, and in case Her Majesty
should be of opinion that such Act
was sufficient for the purpose of
securing to British authors reason-
able protection within such pos-
session, it should be lawful for Her
Majesty to express her royal ap-
proval of such Act, and therefore,
by Order in Council, to suspend,
so long as the provisions of such
Act should continue in force in
such colonies, the provisions of the
B.N.A. ACT, s. 91 (23).—-CAN. COPYRIGHT ACTS.
93
5 & 6 Vict. c. 45. , against the import-
ing, selling, or exposing for sale
foreign reprints of British copy-
right works. The Dominion Par-
liament Act, 31 Vict. c. 56., was
accordingly passed with the object
of giving such reasonable protec-
tion to authors, and upon its being
approved of and assented to by
Her Majesty, she did, by Order in
Council, 7 July 1868, suspend
those provisions of the 5 & 6
Vict. c. 45. which related to the
importing and selling of foreign
reprints. At this time, then, and
up to the coming into operation of
the recent Act, 39 Vict., 1875, the
5 & 6 Vict. c. 45., as modiﬁed by
the Order in Council, was in full
force within the Dominion; in
other words, no one was at liberty,
without the consent of the owner
of the copyright, to print or re-
print the subject of that copyright
in any part of the Dominion. It
was conceded that if the colonial
Act just referred to [38 Vict. c.
88., 1875; see sch.to 38 8t 39 Vict.
(Imp) c. 53.] had been reserved for
and had received the Royal Assent
in the usual way, it could not have
the effect of repealing the 5 & 6
Vict. c. 45.; but it was contended
that, inasmuch as it had been con-
ﬁrmed by an Act of the Imperial
Parliament [38 80 39 Vict. c. 53.],
it must be regarded as having the
force of an Imperial statute, and
that being, as it was contended, in-
consistent with the former Act, it
must be held to have impliedly
repealed it. But on referring to
the Imperial Act we ﬁnd the
reason, and the only reason, al-
leged for its passage to be the as-
sumed repugnancy of the reserved
Bill [38 Vict. c. 88.] to the Order
in Council of 7 July 1868. Those
orders and modiﬁcations which
they effected in the provisions of
5 & 6 Vict. c. 45. are referred to
in the preamble, and after reciting
that a Bill respecting copyrights
had then been recently passed by
the Parliament of Canada whereby
provision was made (subject to
such conditions as in the said Bill Status 22. BEL-
mentioned) for securing in Canada FORD-
the rights of authors in respect of
copyright and for prohibiting the
importation into Canada of any
work for which copyright under
the said reserved Bill had been
secured, it is declared to be ex-
pedient to remove the
which had arisen as to whether a
mere assent would make the Bill
operative as against the Orders in
Council, which had the force of
statutory enactments, and it was
therefore desirable to conﬁrm the
Bill by Imperial legislation. It is
scarcely reasonable to suppose that
if the Imperial Parliament had
thought ﬁt to accept the Canadian
enactment as a substitute for the
5 & 6 Vict. c. 45., they would not
have repealed it so far as it affected
Canada in express terms, or that
when stating a reason for Imperial
legislation they would have con-
ﬁned themselves to a reference to
the Order in Council which dealt
only with a portion of the prohibi-
tions referred to in the statute. I am
of opinion, therefore, that they have
stated the only reason which ren-
dered it expedient to seek a con-
ﬁrmation of the Canadian Act,
and that it was intended to pre-
serve intact so much of the Im-
perial Act as prohibits the printing
of a British copyright work in
Canada, but giving to the author
a further right on certain conditions
of securing a Canadian copyright,
and thus preventing the importa-
tion into Canada of foreign re-
prints.” His Lordship then re-
ferred to the remarks of Lord
Carnarvon when introducing the
measure as a thing to which little
weight could be given, it not being
judicial: “and for the above rea-
sons the decree of the learned
Vice Chancellor was correct, and
the application should be dismissed
with costs.” Moss, J .A., in a long
judgment, said: “ It must be taken
to be beyond all doubt that our
legislature had no authority to pass
any laws opposed to statutes which
doubts ,
94
B.N.A. ACT, s. 91 (24).—-INDIAN LANDS.
SMILEs v. BEL-
FORD.
ST. CATHE-
nINE’s MILLING
AND LUMBER
Co. v. THE
QUEEN.
the Imperial Parliament had made
applicable to the whole empire.
Now it has been settled by the
highest authority that a copyright,
when secured in England, ex-
tended to every part of Her Ma-
jesty’s dominions, including Ca-
nada; Routledge v. Low. [See
above] Except so far as his
rights were affected by the 10 8t 11
Vict. c. 95., and the Order in
Council made under its provisions,
he was absolutely entitled to the
protection of the Imperial Copy-
right Act. By that Act he had
the sole and exclusive right of
printing and otherwise multiplying
copies of his work in Canada.
The 10 8t 11 Vict. c. 95. did not
touch the question of Canadian
reprints. It only permitted the
import of foreign reprints upon
payment of a duty for the beneﬁt of
the author. Independently, then, of
the legislation of 1875, it is clear
that the respondent was entitled to
copyright in this country with the
single limitation that foreign re-
prints might be imported. It is
equally clear that colonial legis-
lation alone could not have affected
his rights.” Burton, J .A.,also said
he dissented from, and he did not
think Chief Justice Draper, in
Reg. v. Taylor, 36 U. C. Q. B.
p. 220 [see ante, p. 56], delibe-
rately entertained the opinion in
that case attributed to him. [See
Note, sec. 93, of Reg. v. College of
Physicians of Ontario, Dec. 23,
1879, 44 U. C. Q. B. 564.]
One of the latest cases on copy-
right in Canada is Sailand v.
Gemmill, Dec. 20, 1887, 14 S. C.
R. 321, on the Dominion Act of
38 Vict. c. 88. s. 9.
(24.) Indians, and lands reserved for the Incl/tans.1
1 See sec. 109.
In ST. CATHERINE’s MILLING
AND LUMBER COMPANY v. THE
QUEEN, 10 O. R. 196; 13 O. A. R.
148; 13 S. C. R. 577; in P. C.
Dec. 12, 1888, 14 App. Cas. 46;
58 L. J. P. C. 54; 60 L. T. 197,
the Dominion claimed that the Act
of 1867 transferred to the Do-
minion all interest in Indian lands
which previously belonged to the
province. Lord Watson delivered
the judgment, there being also
present, Earl of Selborne, Lord
Hobhouse, Sir Barnes Peacock,
Sir Montague E. Smith, and Sir
R. Couch. Lord Watson said:
“ It appears that, on 3 Oct. 1873,
a formal treaty or contract was
concluded between Commissioners
appointed by the Government of
the Dominion, on behalf of Her
Majesty the Queen, of the one
part, and a number of chiefs and
headmen duly chosen to represent
the Satleaux tribe of Ojibbeway
Indians, of the other part, by which
the latter, for certain considera-
tions, released and surrendered to
the Government of the Dominion,
for Her Majesty and her successors,
the whole right and title of the
Indian inhabitants whom they re-
presented to a tract of country
upwards of 50,000 square miles in
extent. By an article of the treaty
it was stipulated that, subject to
such regulations as may be made
by the Dominion Government, the
Indians are to have the right to
pursue their avocations of hunting
and ﬁshing throughout the sur-
rendered territory, with the excep-
tion of those portions of it which
may from time to time be required
or taken up for settlement, min-
ing, lumbering, or other pur-
poses. Of the territory thus
ceded to the Crown an area of not
less than 32,000 square miles is
situated within the boundaries of
the province of Ontario; and, with
respect to that area, a controversy
has arisen between the Dominion
and Ontario, each of them main-
taining that the legal effect of ex-
tinguishing the Indian title has
B.N.A. ACT, s. 91 (24).-QUEBEG JUDICIAL HISTORY.
95
been to transmit to itself the entire
beneﬁcial interest of the lands as
now vested in the Crown, freed
from incumbrance of any kind,
save the qualiﬁed privilege of
hunting and ﬁshing mentioned in
the treaty. Acting on the assump-
tion that the beneﬁcial interest in
these lands had passed to the Do-
minion Government, their Crown
timber agent, on 1st of May 1883,
issued to the appellants, the St.
Catherine’s Milling and Lumber
Co., a permit to cut and carry
away 1,000,000 feet of lumber
from a speciﬁed portion of the dis-
puted areas. The appellants having
availed themselves of that license,
a writ was ﬁled against them in
the Chancery Division of the High
Court of Ontario, at the instance
of the Queen on the information of
the Attorney-General of the pro-
vince, praying (1) a declaration
that the appellants have no right
in respect of the timber cut by
them upon the lands speciﬁed in
their permit; (2) an injunction re-
straining them from trespassing on
the premises and from cutting any
timber thereon; (3) an injunction
against the removal of timber
already cut; and (4) decree for
the damage occasioned by their
wrongful acts. The Chancellor of
Ontario, on 10 June 1885, de
cerned with costs against the ap-
pellants, in terms of the ﬁrst three
conclusions, and referred the
amount of damage to the Master
in Ordinary. The judgment of
the learned Chancellor was unani-
mously aﬁirmed on the 20th April
1886 by the Court of Appeal for
Ontario, and an appeal taken from
their decision to the Supreme Court
of Canada was dismissed on 20th
June 1887 by a majority of four
of the six judges constituting the
Court.”
“ Although the present case re-
lates exclusively to the right of the
Government of Canada to dispose
of the timber in question to the
appellant company, yet its de-
cision necessarily involves the de-
termination of the larger question
between that Government and the
province of Ontario with respect
to the legal consequence of the
treaty of 1873. In these circum-
stances Her Majesty, by the same
order which gave the appellants
leave to bring the judgment of the
court below under the review of
this Board, was pleased to direct
that the Government of the Do-
minion of Canada should be at
liberty to intervene in this appeal,
or to argue the same upon a special
case raising the legal question in
dispute. The Dominion Govern-
ment elected to take the ﬁrst of
these courses, and their. Lordships
have had the advantage of hearing
from their counsel an able and ex-
haustive argument in support of
their claim to that part of the
ceded territory which lies between
the provincialboundaries of Ontario.
“ The capture of Quebec in
1759, and the capitulation of Mon-
treal in 1760, were followed in
1763 by the cession to Great
Britain of Canada and all its de-
pendencies, with the sovereignty,
property and possession, and all
other rights which had at any pre-
vious time been held or acquired
by the Crown of France. A Royal
Proclamation was issued on the 7th
October 1763, shortly after the
Treaty of Paris, by which His Ma-
jesty King George (the 3rd) erected
four distinct and separate govern-
ments, styled respectively, Quebec,
East Florida, West Florida, and
Grenada, speciﬁc boundaries being
assigned to each of them. Upon
the narrative that it was just and
reasonable that the several nations
and tribes of Indians who lived
under British protection should
not be molested or disturbed in the
‘possesssion of such parts of Our
dominions and territories as, not
having been ceded to or purchased
by us, are reserved to them or any
of them as their hunting ground,’
it is declared that no Governor or
Commander-in-Chief in any of the
new Colonies of Quebec, East
Sr. CATHE-
RINE’s MILLING
AND LUMBER
CO. v. THE
QUEEN.
96
B.N.A. ACT, 8. 91 (24).--WASTE LANDS.
ST. CATHE-
RINE’s MILLING
AND LUMBER
Co. v. THE
QUEEN.
Florida, or West Florida, do pre-
sume on any pretence to grant
warrants of survey or pass any
patents for lands beyond the
bounds of their respective govern-
ments, or ‘ until Our further pleasure
be known’ upon any lands what-
ever which, not having been ceded
or purchased as aforesaid, are re-
served to the said Indians or any
of them. It was further declared
‘ to be Our Royal will, for the pre-
sent as aforesaid, to reserve under
our sovereignty, protection and
dominion, for the use of the said
Indians, all the land and territories
not included within the limits of
our said three governments or
within the limits of the territory
granted to the Hudson’s Bay Com-
pany.’ The proclamation also
enacts that no private person shall
make any purchase from the In-
dians of lands reserved to them
within those colonies where settle-
ment was permitted, and that all
purchases must be on behalf of the
Crown in a public assembly of the
Indians, by the Governor or Com-
mander-in-Chief of the Colony in
which the lands lie.
“ The territory in dispute has
been in Indian occupation from
the date of the proclamation until
1873. During that interval of
time Indian affairs have been ad-
ministered successively by the
Crown, by the provincial govern-
ments, and since the passing of the
B. N. A. Act, 1867, by the Go-
vernment of the Dominion. The
policy of these administrations has
been all along the same in this re-
spect, that the Indian inhabitants
have been precluded from entering
into any transaction with a subject
for the sale or transfer of their in-
terest in the land, and have only
been permitted to surrender their
rights to ‘the Crown by a formal
contract duly ratiﬁed in a meeting
of their chiefs or headmen con-
vened for the purpose. Whilst
there have been changes in the ad-
ministrative authority, there has
been no change since the year 1763
in the character of the interest
which its Indian inhabitants had
in the lands surrendered by the
treaty. Their possession, such as
it was, can only be ascribed to the
general provisions made by the
Royal Proclamation in favour of all
Indian tribes then living under the
sovereignty and protection of the
British Crown. It was suggested,
in the course of the argument for
the Dominion, that inasmuch as
the proclamation recites that the
territories thereby preserved for In-
dians had never been ‘ ceded to or
purchased by ’ the Crown, the entire
property of the land remained with
them. That inference is, however,
at variance with the terms of this
instrument, which show that the
tenure of the Indians was a per-
sonal and usufructuary right, de-
pendent upon the good will of the
sovereign. The lands reserved are
expressly stated to be ‘parts Our
dominions and territories,’ and it is
declared to be the will and pleasure
of the sovereign that ‘for the pre-
sent ’ they shall be reserved for the
use of the Indians as their hunting
grounds under his protection and
dominion. There was a great deal
of learned discussion at the Bar
with respect to the precise quality
of the Indian right, but their
Lordships do not consider it neces
sary to express any opinion upon
the point. It appears to them to be
sufficient for the purposes of this
case, that there has been all along
vested in the Crown a substantial
and paramount estate underlying
the Indian title, which became a
plenum dominium whenever that
title was surrendered or otherwise
extinguished. By an Imperial sta-
tute passed in 1840 (3 8c 4 Vict.
c. 35.) , the provinces of Ontario and
Quebec, then known as Upper and
Lower Canada, were united under
the name of the province of
Canada, and it was, inter alia,
enacted that in consideration of
certain annual payments which Her
Majesty had agreed to accept by
way of Civil List, the produce of all
B.N.A ACT, s. 91 (24).-noM. TIMBER cLAIMs.
97
territorial and other revenues at the
disposal of the Crown arising in
either of the united provinces
should be paid into the consoli-
dated fund of the new province.
There was no transfer of any legal
estate in the Crown lands, which
continued to be vested in the sove-
reign; but all moneys realized by
sales or in any other manner be-
came the property of the province.
In other words, all beneﬁcial in-
terest in such lands within the pro-
vincial boundaries belonging to the
Queen, and either producing or
capable of producing revenue,
passed to the province, the title
still remaining in the Crown. That
continued to be the right of the
province until the passing of the
B. N. A. Act, 1867. Had the in-
habitants of the area in question
released their interest in it to the
Crown at any time between 1840
and the date of that Act, it does
not seem to admit of doubt, and it
was not disputed by the learned
counsel for the Dominion, that all
revenues derived from its being
taken up for settlement, mining,
lumbering, and other purposes,
would have been the property of
the province of Canada. The case
maintained for the appellants is
that the Act of 1867 transferred to
the Dominion all interest in Indian
lands which previously belonged to
the province. The Act of 1867,
which created the Federal Govern-
ment, repealed the 3 80 4 Vict.
c. 35., and restored the Upper and
Lower Canadas to the condition of
separate provinces under the titles
of Ontario and Quebec, due pro-
vision being made (sec. 142) for
the division between them of the
property and assets of the united
province, with the exception of
certain items speciﬁed in the fourth
schedule which are still held by
them jointly.
“ The Act also contains careful
provisions for the distribution of
legislative powers and of revenues
and assets between the respective
provinces included in the Union,
S 2340.
on the one hand, and the Do-
minion, on the other. The con-
ﬁicting claims to the ceded terri-
tory maintained by the Dominion
and the province of Ontario are
wholly dependent on these statu-
tory provisions. In construing
these enactments, it must always
be kept in view that, wherever
public land with its incidents is
described as ‘ the property of’
or as ‘belonging to’ the Do-
minion or a province, these ex-
pressions merely import that the
right to its beneﬁcial use, or to its
proceeds, has been appropriated to
the Dominion or the province as
the case may be, and is subject to
the control of its legislature, the
land itself being vested in the
Crown. Sec. 108 enacts that the
public works and undertakings
enumerated in Schedule 3 shall be
the property of Canada as speciﬁed
in the schedule; these consist of
public undertakings which might
be fairly considered to exist for the
beneﬁt of all the provinces federally
united, of lands and buildings
necessary for carrying on the Cus-
toms or postal service of the Do-
minion or required for the purpose
of national defence, and of ‘lands
set apart for general public pur-
poses.’ It is obvious that the enu-
meration cannot be reasonably held
to include Crown lands which are
reserved for Indian use. The only
other clause in the Act by which a
share of what previously constituted
provincial revenues and assets is
directly assigned to the Dominion
is see. 102. It enacts that all
‘duties and revenues ’ over which
the respective legislatures of the
United Province had and have
power of appropriation, ‘except
such portions thereof as are by this
Act reserved to the respective legis-
latures of the provinces, or are
raised by them in accordance with
the special powers conferred upon
them by this Act,’ shall form one
consolidated fund to be appropri-
ated for the public service of
Canada. The extent to which
G
ST. CATHE-
RINE’S MILLING
AND LUMBER
Co. v. THE
QUEEN.
98 B.N.A. ACT, s. 91 (24).—-ESCHEATS PROVINCIAL.
ST. CATHE-
IuNE’s MILLING
AND LUMBER
Co. v. THE
QUEEN.
duties and revenues arising within
the limits of Ontario, and over
which the legislature of the old
province of Canada possessed the
power of appropriation before the
passing of the Act, have been
transferred to the Dominion by
this clause, can only be ascertained
by reference to the two exceptions
which it makes in favour of the
new provincial legislatures. The
second of these exceptions has
really no bearing on the present
case, because it comprises nothing
beyond the revenues which pro-
vincial legislatures are empowered
to raise by means of direct taxation
for provincial purposes in terms of
sec. 92, sub-sec. 2. The ﬁrst of
them, which appears to compre-
hend the whole sources of revenue
reserved to the provinces by sec.
109, is of material consequence.
Sec. 109 provides that‘all lands,
mines, minerals, and royalties be-
longing to the several provinces of
Canada, Nova Scotia, and New
Brunswick, at the Union, and
all sums then due or payable for
such lands, mines, minerals, or
royalties, shall belong to the several
provinces of Ontario, Quebec,
Nova Scotia, and New Brunswick,
in which the same are situate or
arise, subject to any trusts existing
in respect thereof, and to any in~
terests other than that of the pro-
vince in the same.’ In connection
with this clause, it may be observed
that by sec. 117 it is declared
that the province shall retain their
respective public property not
otherwise disposed of in the Act,
subject to the right of Canada to
assume any lands or public pro-
perty required for fortiﬁcations or
for the defence of the country. A
different form of expression is used
to deﬁne the subject-matter of the
ﬁrst exception, and the property
which is directly appropriated to
the province; but it hardly admits
of doubt that the interests in land,
mines, minerals, and royalties,
which by sec. 109 are declared to
belong to the provinces, include, if
they are not identical with, the
‘ duties and revenues ’ ﬁrst except-
ed in sec. 102. The enactments
of sec. 109 are in the opinion of
their Lordships suﬁicient to give to
each province, subject to the ad-
ministration and control of its own
legislature, the entire beneﬁcial in-
terests of the Crown in all lands
within its boundaries, which at the
time of the Union were vested in
the Crown, with the exception of
such lands as the Dominion ac-
quired right to under sec. 108 or
might assume for the purpose
speciﬁed in sec. 117. Its legal
effect is to exclude from the ‘ duties
and revenues ’ appropriated to the
Dominion all the ordinary territo-
rial revenues of the Crown arising
within the provinces. That con-
struction of the statute was accept-
ed by this Court in deciding Att.-
Gen. of Ontario v. Mercer, reversing
5 S.C.R. 538, July 18, 1883, 8 App.
Cas. 767 [see post, s. 109],where the
controversy related to land granted
in fee-simple to a subject before
1867, which became escheated to
the Crown in the year 1871. Earl
Selborne, L.C., in delivering judg—
ment in that case, said: ‘It was
not disputed, in the argument for
the Dominion at the Bar, that all
territorial revenues arising within
each province from ‘lands’ (in
which term must be comprehended
all estates in land), which at the
time of the Union belonged to the
Crown, were reserved to the re-
spective provinces by sec. 109 ; and
it was admitted that no distinction
could, in that respect, be made
between lands then ungranted and
lands which had previously reverted
to the Crown by escheat. But
it was insisted that a line was
drawn at the date of the Union,
and that the words were not suﬂi-
cient to reserve any lands after-
wards escheated which at the time
of the Union were in private
hands and did not then belong to
the Crown.’ Their Lordships in-
dicated an opinion to the effect
that the escheat would not, in the
B.N.A. ACT, s. 91 (24).—HIST.
INDIAN coNcEssIoN. 99
special circumstances of that case,
have passed to the province as
‘lands,’ but they held that it fell
within the class of rights reserved
to the provinces as ‘royalties’
by sec. 109. Had its Indian
inhabitants been the owners in fee-
simple of the territory which they
surrendered by the treaty of 1873,
Att.-Gen. 22. Mercer [.s'eepmt, s. 109]
might have been an authority for
holding that the province of On-
tario could derive no beneﬁt from
the cession, in respect that the land
was not vested in the Crown at the
time of the Union. But that was
not the character of the Indian
interest. The Crown has all along
had a present proprietary estate in
the land, upon which the Indian
title was a mere burden. The
ceded territory was at the time of
the Union,landvested in the Crown,
subject to ‘ an interest other than
that of the province in the same ’
within the meaning of sec. 109;
and must now belong to Ontario
in terms of that clause, unless its
rights have been taken away by
some provision of the Act of 1867
other than those already noticed.
“ In the course of the argument
the claim of the Dominion to the
ceded territory was rested upon
the provisions of sec. 91, sub-
sec. 24, which in express terms
confers upon the Parliament of
Canada power to make laws for
‘ Indians and lands reserved for
Indians.’ It was urged that the
exclusive power of legislation and
administration carried with it, by
necessary implication, any patri~
monial interest which the Crown
might have had in the reserved
lands. In reply to that reasoning,
counsel for Ontario referred us to
a series of provincial statutes prior
in date to the Act of 1867, for the
purpose of showing that the ex-
pression ‘ Indian Reserves’ was
used in legislative language to
designate certain lands in which
the Indians had, after the Royal
Proclamation of 1763, acquired a
special interest, by treaty or other~
wise, and did not apply to land
occupied by them in virtue of
the proclamation. The argument
might have deserved consideration
if the expression had been adopted
by the British Parliament in 1867 , i
but it does not occur in sec. 91,
sub-sec. 24, and the words actually
used are, according to their natural
meaning, sufficient to include all
lands reserved, upon any terms or
conditions, for Indian occupation.
It appears to be the plain policy of
the Act that, in order to insure
uniformity of administration, all
such laws, and Indian affairs gene-
rally, shall be under the legislative
control of one central authority.
Their Lordships are, however,
unable to assent to the argument
for the Dominion founded on see.
91, sub-sec. 24. There can be no
a priori probability that the British
Legislature, in a branch of the sta-
tute which professes to deal only
with the distribution of legislative
power, intended to deprive the
provinces of rights which are ex-
pressly given to them in that
branch of it [see 109] which relates
to the distribution of revenues and
assets.
“ The fact that the power of legis-
lating for Indians, and for lands
which are reserved for their use,
has been entrusted to the Parlia_
ment of the Dominion, is not in the
least degree inconsistent with the
right of the provinces to a bene-
ﬁcial interest in these lands, avail-
able to them as a source of revenue
whenever the estate of the Crown
is disencumbered of the Indian
title.
“ By the treaty of 1873 the Indian
inhabitants ceded and released the
territory in dispute, in order that
itv might be opened up for settle-
ment, immigration, and such other
purposes as to Her Majesty might
seem ﬁt, ‘ to the Government of
the Dominion of Canada,’ for the
Queen and her successors for ever.
It was argued that a cession in these
terms was in effect a conveyance
to the Dominion Government of
a2
Sr. CATHE-
RINE’s MILLING
AND LUMBER
Co. v. THE
QUEEN.
00!‘.
II‘...
100
B.N.A. ACT, 9. 91 (25).—-FRANCHISE or INDIANS.
ST. CATHE-
,
RINE s MILLING
AND LUMBER
Co. v. THE
QUEEN.
I .0.‘
the whole rights of the Indians
with consent of the Crown. That
is not the natural import of the
language of the treaty, which pur-
ports to be from beginning to end
a transaction between the Indians
and the Crown ; and the surrender
is in substance made to the
Crown. Even if its language had
been more favourable to the argu-
ment of the Dominion upon this
point, it is abundantly clear that
the commissioners who represented
Her Majesty, whilst they had full
authority to accept a surrender to
the Crown, had neither authority
nor power to take away from On-
tario the interest which had been
assigned to that province by the
Imperial statute of 1867. These
considerations appear to their Lord-
ships to be suﬂicient for the dis-
posal of this appeal. The treaty
leaves the Indians no right what-
ever to the timber growing upon
the lands which they gave up,
which is now fully vested in the
Crown, all revenues derivable from
the sale of such portions of it as
are situated within the boundaries
of Ontario being the property of
that province. The fact, that it
still possesses exclusive power to
regulate the Indian privilege of
hunting and ﬁshing, cannot confer
upon the Dominion power to dis-
pose, by issuing permits or other-
wise, of that beneﬁcial interest in
the timber which has now passed
to Ontario. Seeing that the bene-
ﬁt of the surrender accrues to her,
Ontario, must of course relieve the
Crown and the Dominion, of all
obligations involving the payment
of money which were undertaken
(25). Naturalization and
1 See the Imperial Naturalization
Act of 1870, 33 80 34 Vict. c. 14. s.
16, which gives power to Colonies to
legislate with respect to naturali-
zation of persons who are to have
that privilege within the limits of
such possessions. The 35 8t 36 Vict.
by Her Majesty, and which are
said to have been in part fulﬁlled
by the Dominion Government.
There may be other questions be-
hind, with respect to the right to
determine to what extent and at
what periods the disputed territory,
over which the Indians still exer-
cise their avocation of hunting and
ﬁshing, is to be taken up for settle1
ment or other purposes, but none
of these questions are raised for
decision in the present suit.” J udg-
ment of Supreme Court affirmed.
British Columbia passed an Act
which precluded the exercise of the
electoral franchise in respect of
the legislative assembly by Chinese
and Indians. The Deputy Mi-
nister of Justice, 18 Sept. 1872,
reported the Bill to be within the
legislative power of the province,
1st, because sub-sec. 24, sec. 91,
had reference to legislation to In-
dians generally, and to lands re—
served to them, and 2nd, sec. 92
gives to each province the power
exclusively to make laws in relation
to, inter alia, the constitution of
the province, and that this conferred
on the province the right of legis-
lating as to its franchise.
Ontario had also exercised this
right in respect of Indian votes, and
had excepted from the right to
franchise Indians belonging to
tribes and Indians in receipt of
Government aid or bounty. See
33 Vict. c. 25. s. 34; Prov. Leg,
1866, p. 710. 28 U. C. C. P. 384,
399; 4 Ont. App. R. 159, acase of
provincial taxation, that sub-sec. 24
applied only to Indian lands not
surrendered and still reserved for
their use.
aliens.1L
c. 39., which amended the previous
Act only as to renunciation by the
citizens of the United States and
by British subjects of their respec-
tive original nationality, in accor-
dance with the Convention with the
United States, 23 February 1871.
B.N.A. ACT, s. 91 (26).——NATURALIZATION.
101
Legislation with regard to aliens
is entrusted to the Dominion Par-
liament. The Manitoba Assembly
passed an Act dealing with the
holding of land ; and declared that
the existing disqualiﬁcations against
aliens debarred them from serving
as jurors. The Minister of Justice,
21 February 1874, following the
ruling of the Chief Justice under
the English laws in force in Mani-
toba, recommended the Act be
sanctioned. Prov. Leg., 1887.
If the provinces attempt to effect
the naturalization of a person who
is a citizen of a foreign state, this
would be objected to, as this is one
of the subjects left exclusively to
the Dominion Parliament, and Acts
have been passed accordingly. See
31 Vict. c. 66. (D.), 34 Vict. c. 22.
(1).), and Acts of Imperial Parlia-
ment (given above). Prov. Leg,
1887
In the licence cases in the
United States, T hurlow r. Massa-
chusetts ; Fletcher '12. State of Rhode
Island; and Peirce v. State of New
Hampshire, Jan. 1847, 46 S. C.
U. S. (5 How.) 585, Taney, C.J.,
said (p. 585): “In the case of
Chirac tnChirac, l8l7, l5 S.C.U.S.
(2 Wheat.) 259, which arose under
the grant of power to establish a
uniform rule of naturalization,
where the Court speaks of the
power of Congress as exclusive,
they are merely sanctioning the
argument of counsel stated in the
preceding sentence, which placed
the invalidity of the naturalization
under the law of Maryland, not
solely upon the grant of power in
the Constitution, but insisted that
the Maryland law was ‘ virtually
repealed by the Constitution of the
United States, and the Act of ALIENS-
Naturalization enacted by Con-
gress.’ Undoubtedly it was so
repealed, and the opposing counsel
in the case did not dispute it. For
the law of the United States covers
every part of the Union, and there
could not, therefore, by possibility
be a State law which did not come in
conﬂict with it. And, indeed, in
this case, it might well have been
doubted whether the grant in the
Constitution itself did not abrogate
the power of the States, inasmuch
as the Constitution also provided,
that the citizens of each State should
be entitled to all the privileges and
immunities of citizens in the several
States; and it would seem to be
hardly consistent with this provision
to allow any one State, after the
adoption of the Constitution, to
exercise a power, which, if it
operated at all, must operate be-
yond the territory of the State, and
compel other States to acknowledge
as citizens those whom it might
not be willing to receive. . . I am
not aware of any instance in which
the Court have spoken of the grant
of power to the general Government
as excluding all State power over
the subject, unless they were de-
ciding a case where the power had
been exercised by Congress and a
State law came in conﬂict with it.
In cases of this kind the power of
Congress undoubtedly excludes and
displaces that of the State, because
whenever there is a collision be-
tween them the law of Congress is
supreme; and it is in this sense
only, in my judgment, that it has
been spoken of as exclusive in the
opinions of the court to which I
have referred.”
(26.) Marriage and divorce.1
1 Notwithstanding the general lan-
guage of this sub-section of sec. 91,
no one can doubt that the “ solem-
nization of marriage ” [see Notes,
sec. 92, sub-sec. 12] is still within
the exclusive authority of the legis-
lature of the provinces.
Montague Smith in Citizens’ In-
surance Co. of Canada 1). Parsons,
43 U.C.Q.B. 261; 40.A.R.96;
4 S. C. R. 215; in P. C. INov. 26,
1881, 7 App. Cas. 96; 51 L. J.
P. C. 11; 45 L. T. 721; sec. 92,
5'68
sub-sec. 13.
DIVORCE.
102 B.N.A. ACT, s. 91 (27).-ADMINISTBATION or LAw.
Hones v. THE
QUEEN.
(27 The criminal law, except the constitution of
courts of criminal jurisdiction, but including
the procedure in criminal matters.1
1 Compare with sub-secs. 14, 15,
sec. 92.
Commissioners to regulate the
liquor traffic are a municipal
institution. The Legislature of
Ontario, by the Liquor License
Act, 1877, R. S. O. c. 181.,
authorized the appointment of
License Commissioners to act in
each municipality of the province,
and empowered them to pass rules
deﬁning the conditions requisite for
obtaining tavern or shop licenses
for the sale by retail of spirituous
liquors within the municipality,
&c., with power to impose penalties,
and for the second oifence imprison-
ment with hard labour for a period
not exceeding three months.
In HoneE v. THE QUEEN [in
the C. of App., Ont, 30 June
1882, 7 O. A. R. 247], the Judicial
Committee, Dec. 15, 1883, 9 App.
Cas.117; 53 L. J. P. C. 1; 50L. T.
301, held that this Act was z'ntra
tires the pron'ncial legislature, being
within the subjects of sec. 92, and
“ within these limits of subjects
and area the local legislature is
supreme, and has the same authority
as the Imperial Parliament, or the
Parliament of the Dominion, would
have had under like circumstances
to conﬁde to a municipal institution
or body of its own creation au-
thority to make bye-laws with the
object of carrying the enactment
into operation and effect” [9 App.
Cas. p. 132]. And secondly, coming
as they do within the powers of the
local legislature, then sub-sec. 15,
sec. 92, “which provides for ‘the
imposition of punishment by ﬁne,
penalty, or imprisonment for en-
forcing any laws of the province
made in relation to any matter
coming within any of the classes of
subjects enumerated in this section ’
is applicable to the case before us,
and is not in conﬂict with sub-
sec. 27 of sec. 91 ; under these
very general terms, ‘ the imposition
of punishment by imprisonment for
enforcing any law,’ it seems to their
Lordships that there is imported an.
authority to add to the conﬁnement
or restraint in prison that which is
generally incident to it—‘ hard
labour ’; in other words, that ‘ im-
prisomnent ’ there means restraint
by conﬁnement in a prison, with or
without its usual accompaniment,
‘ hard labour.’ ” [See sec. 92, sub-
sec. 9.]
The Parliament of Canada has
full power to pass an Act (the
Canada Temperance Act, 1878) to
prevent the sale of liquor, except
in wholesale quantities, wherever
put in force by the municipality,
and may attach to the sale of liquor
ﬁne or punishment of a criminal
nature. See Russell v. The Queen,
in S. C. N. B. 1881; in P. C.
June 23, 1882; 7 App. Cas. 829;
51 J. L. P. C. 77; 46 L. T. 889
[see sec. 92, sub-sec. 9], affirming
the City of Fredericton v. the
Queen, 1879, 19 S. C. N. B. (3
Pugs. & B.) 139, April 13, 1880;
3 S. C. R. 505 [see ante, p. 60].
By a provincial Act in force every
debtor imprisoned under process
from any court was entitled to
apply for his discharge, and when
the county courts were established
it was held competent for the pro-
vincial legislature to provide by an
Act that prisoners arrested under
process issuing from them should be
entitled to their discharge as in
other cases, and such an Act is not
ultra vires. Johnston v. Poyntz,
April 5, 1881; 14 N. S. R. (2 Russ.
& Geldert) 193.
The Dominion Act, 32 8t 33 Vict.
c. 31. s. 78, inter alia, provided
that in case a justice before whom
any conviction takes place neglects
B.N.A. ACT, s. 91 (27).—ADOPTION OF LOCAL LAW.
103
or refuses to make the return of the
conviction to the next general or
quarter sessions, he should forfeit
the sum of $80, to be recovered in
any court of record in the pro—
vince. A11 action was brought for
the penalty in the Westmoreland
county court, New Brunswick. The
Provincial C. S. c. 51. enacts that
the county courts shall not have
jurisdiction over actions against jus-
tices of the peace. It was held the
Dominion Act overrode the pro-
vincial Act. Ward 2). Reed, Nov.
1882; 22 S. C. N. B. (1 Pugs.
& T 279.
Allen, C.J., said: “ I think
there is no doubt about the power
of the Dominion Parliament to
authorize any court in this pro-
vince to try such an action as this.
It is a matter connected with the
administration of the criminal law,
which belongs exclusively to the
Dominion Parliament, which has
the right, in legislating upon a
matter within its control, to give
authority to the existing courts in
the provinces to try such matters.
This principle was established in
Valin 7). Langlois [see ante, p. 18],
13 S. C. R. l, where the ques-
tion arose as to the right of Parlia-
ment to impose on the judges of
the superior courts of the several
provinces in the Dominion the
duty of trying petitions respecting
Controverted elections of members
of the House of Commons. Rit-
chie, C.J., in that case, 13 S. C. R.
p. 20, says: ‘W'hether this Act
(the Controverted Elections Act) is
to be treated as declaring the courts
named Dominion Election Courts,
or whether it is to be treated as
merely conferring on particular
courts already organized a new and
peculiar jurisdiction, is a matter to
my mind of no great importance,
as I think while they clearly have
the power of establishing a new
Dominion court, they have like-
wise the power, when legislating
within their jurisdiction, to require
the established courts of the respec-
tive provinces and the udges there-
of . . to enforce their legislation.’
This court has often acted on that
principle, in prosecutions under the
Canada Temperance Act, which by
sec. 103 gives jurisdiction over pro-
secutions for violations of the Act in
this province to police magistrates
and certain other oﬂicials.”
In REG. '0. (TROURKE, Dec. 2,
1882, 1 O. R. 464, the question
was raised whether the selection of
jurors was a matter of procedure
or of the constitution of the court.
The Dominion Parliament Crimi-
nal Procedure Act, 32 & 33 Vict.
c. 29., declares every person quali-
ﬁed and summoned to serve as a
juror in criminal cases according
to the law in any province is de-
clared to be qualiﬁed to serve in
such province. The legislature of
Ontario, by 32 Vict. c. 6., 42 Vict.
c. 14., and 44 Vict. c. 6., altered the
law as to the selection of jurors as
previously provided for under C. S.
U. G. c. 31. and 26 Vict. c. 414.
It was held the Dominion Act was
not a delegation of its powers.
Hagarty, C.J., said: “It seems
to me very clear that the Dominion
Parliament, by this Act of 1869,
adopted and, as it were, conﬁrmed
the existing provincial jury laws,
and also declared that future pro-
vincial laws on that subject should
be equally adopted and conﬁrmed,
subject, however, to their own right
of control by any existing or future
Act. This need not be read as
technically a delegation of their
own authority, but rather, in the
language of \Vilson, C.J., an ac-
ceptance of the provincial law, and
a legislation by relation and refer-
ence to that law. But if it were
directly a delegation of power, I am
not prepared to hold it erroneous.
The Dominion Parliament is su-
preme in criminal law and pro-
cedure, and may, I assume, exercise
its powers in such fashion as it
may deem expedient. The only
question with me is, whether it has
clearly sanctioned and adopted the
statute law of Ontario, under which
Honen v. THE
QUEEN.
REG. v.
O’RoUnxE
1041 B.N.A. ACT, s. 91 (27).-DOUBLE LEGISLATION.
REG. 1'.
O’ROURKE.
In re BoUcnER
Ea‘ part0
PI LLow.
REG. 0. Purr'ri
the jurors were brought into court
in this case. I think this has been
done, and that the Ontario Act
must govern so long as the Do-
minion Parliament has not inter-
posed Or enacted any provision in-
consistent therewith.”
It was held in re Boucher, 15
Nov. 1879, that the 38 Vict. c. 47.,
giving power to the police magis-
trate to try in a summary manner
felonies and misdemeanours, was
intra olrcs of the Dominion Par-
liament.
In that case, on an appeal from
Court of Appeal, Ontario, against
a conviction by the police magis-
trate for unlawfully wounding, it
was held no appeal lay to the
Supreme Court. Ritchie, C.J. :
“ regards habeas corpus in
criminal matters, the Court has only
a. concurrent jurisdiction with the
judges of the superior courts of the
\arious provinces, and not an ap-
pellate jurisdiction, and there is no
necessity for an appeal from the
judgment of any judge or court or
any appellate court, because the
prisoner can come direct to any
judge of the Supreme Court in-
dividually, and upon that judge
refusing the writ or remanding the
prisoner, he could take his appeal
from that judgment to the full
court.” Dig. S. C. R., 1893, 327.
The question was raised in
REG. 1*. PRITTIE, March 15, 1878,
42 U. C. Q. B. 612, whether
any license under a provincial Act
could issue in a place where the
Dominion Temperance Act, 1864,
was adopted, and Wilson, J ., was
of opinion the Ontario Legislature
had not the power to make the
provisions of the licensing Acts
have the full force and effect in a
municipality where the Temperance.
Act is in force, so as to make an
offence against the one (the
“keepmg” for sale under the
Dominion Act) an oﬁence against
the other Act. “ That is direct
legislation upon criminal law
and procedure in criminal matters
which is not in any way necessary
for the due exercise of their own
proper power. Why is not the party
to be convicted under the statute
and for the violation of the statute
he has contravened? \Vhy is he,
because he has done an act against
one statute, to be prosecuted for
breaking another he has never in-
fringed P I think that cannot
be done.” Conviction quashed.
Harrison, C.J., and Armour, J .,
concurred.
In Ear parte Pillow and the City
of IVIOntreal, Superior C., 5 July
1883, 27 L. C. J. 216, it was held
that the power of the Dominion
Parliament to pass a general law of
nuisances as incident to its right to
legislate as to public wrongs was
not incompatible with a right in
the provincial legislatures to pass
the clause authorizing municipal
institutions to pass bye-laws with
the object of abating insalubrious
or dangerous establishments in a-
province. And the Court quoted
Tessier, J ., in Poulin and the City
of Quebec, 7 Q. L. R. 337: “ Is it
not part of the municipal institu-
tions to make disciplinary and
police regulations to prevent dis-
order on Sunday and at night, by
compelling tavern and saloon keep-
ers to keep their drinking places
closed during that time P Can there
be any question as to the power of
our local legislature, or even our
municipal corporation, to prevent
the sale and storage of gunpowder
except in certain places, and with
certain precautions for the safety
of the public? And yet this is a
matter of trade, like any other.”
There the petitioner argued it was
a matter of criminal law, and there-
fore assigned exclusively to the
Dominion Parliament, but such
plea was not upheld.
In REG. 2). STONE, Dec. 23, 1892,
23 O. R. 46, it was held the Act 52
Vict. c. 43. of the Dominion Parlia-
ment to provide against frauds in the
supply of milk to cheese factories,
&-c., was intra rwires, although there
was an Act of the Ontario Legisla-
B.N.A. ACT, s. 91 (27).-—()VERLAPPING LEGISLATION. 105
ture, 51 Vict. c. 32., for the same
purpose.
Rose, J., said: The ﬁrst objec—
tion was supported by an argument
on the decision in Reg. 12. \Vason,
17 O. A. R. 221, where a somewhat
similar Act of the Ontario Legis-
lature, 51 Vict. c. 32., was con-
sidered, and held to be intra vires
the Ontario Legislature, the opinion
in that case being that the Act of
the legislature merely protected
private rights. That case was con-
sidered by this Court in Reg. 1‘.
Hart, 20 C. R. 611, where the
result of the decision in Reg. o.
Wason was stated to be that the
provincial Act was not a criminal
enactment, although its provisions
were enforceable by ﬁne and im-
prisonment. As has been pointed
out in Reg. 1). Wason, the Act of
the legislature differs in form from
the Act of Parliament, in that
under the former the offence con-
sists in doing certain things with-
out notifying in writing the owner
or manager of the cheese or butter
manufactory. The Act in question
forbids all persons doing the acts
therein stated ; and in form simi-
lar to other Acts found upon the
pages of the R. S. of Canada creat-
ing crimes. It was urged upon us
that if the legislature had power
to deal with the subject, it followed
that it was not within the jurisdiction
of Parliament. I think this is not
so. In my opinion, Mr. Edward
Blake in his argument in Reg. '0.
Wason correctly stated the law as
follows :——‘ The jurisdiction of the
provinces and the Dominion over-
lap. The Dominion can declare
anything a crime, but this only so
as not to interfere with or exclude
the powers of the province of deal-
ing with the same thing in its civil
aspect and of imposing sanctions
for the observance of the law; so
that though the result might be an
inconvenient exposure to a double
liability, that possibility is no argu-
ment against the right to exercise
the power; ’ or as put by Osler, J.
[in the same case, Reg. 0. Wason,
17 O. A. 11.], p. 241: ‘I sup-
pose it will not be denied that
the latter, namely, the Parliament,
may draw into the domain of crim-
inal law an act which has hitherto
been punishable only under a pro-
vincial statute.’ MacLennan, J ., in
the same case, p. 248, referring to
the Adultera-tion Act, B. S. C.
c. 107. s. 15, used language which
I think is apposite. ‘ The Act in
question seems to me to be very
different from the Dominion Act.
The latter is universal in its scope
and application, and prohibits the
forbidden acts by all persons whom-
soever, under all circumstances, and
in all places through the Dominion,
while the provincial Act is conﬁned
to dealing between these two par-
ticular kinds of manufacturers and
their customers. The one has all
the features of a public criminal
law passed in the interest of the
general public; the other is merely
the regulation of the mode of carry-
ing on a particular trade or busi-
ness within the province, so as to
secure fair and honest dealing be-
tween the parties concerned.’ Had
there been no provincial statute, I
do not think it could have been
argued that the Act in question
did not create a crime, and was not
within the power of Parliament.
Apart from any distinction between
the two Acts as to the provisions
and enactments, I am of opinion
the passing of a provincial statute
within the powers of the legislature
cannot in anywise take away from
Parliament the right to legislate
respecting the same matters and to
prohibit them, and to enforce the
prohibition by such punishment by
way of ﬁne or imprisonment as
may be deemed best. I think
the quotations I have made so com~
pletely cover the ground, and so
clearly and distinctly express the
conclusions at which I have arrived
from a perusal of the arguments
and opinions in that case, that I
cannot hope to express more clearly
the result.” Galt, C.J., and Mac-
Mahon, J ., concurred.
REG. v. S'romz.
106 BN.A. ACT, 91 (27).—-QUASI-NATIONAL SENSE.
REG. v. WAsoN.
The Ontario Acts, 51 Vict. c. 32.,
providing against frauds in selling
milk, cheese, and butter; and
52 Vict. c. 15., providing for ap-
peals on prosecutions to enforce
penalties and punish oﬁ'ences under
provincial Acts, were both held
intra vires.
In REG. v. WAsoN, March 4,
1890, 17 O. A. R. 221, Hagarty,
C.J.O., said: “If it be an Act
merely to create offences in the in-
terest of public morality, it may be
argued that it is trenching 011 the
forbidden ground of ‘ criminal law.’
If it be, as I think it is, an Act to
regulate the business carried 011 at
these cheese factories, with reason-
able penalties to ensure obedience
to its regulations, I consider it to
be within the powers given by the
Constitution to the provincial legis-
lature.
Burton, J .: “The words used
both in sections 91 and 92 are ne-
cessarily very general, but those in
91 were intended to apply to sub-
jects of national and general con-
cern. WVe are all aware that for
many years after confederation, dis-
cussions were constantly arising as
to the scope of the words, ‘ Regu-
lation of trade and commerce,’ it
being frequently contended that
they were sufficiently general to
include even minute rules for regu-
lating a particular trade or business,
a contention not only frequently
urged, but found not to be without
support in judicial dicta. [See
Citizens’ Insurance Co. 1:. Par-
sons, 4 S. C. R. 294, 341; Reg. v.
Lawrence, 43 U. C. Q. B. 176.]
But it has long since been authorita-
tively decided that, read in connec-
tion with other portions of the Act,
those words must be held to refer
to regulations relating to trade and
commerce in their general and
quasi-national sense, and not to the
contracts or conduct of particular
trades. So in reference to the
words found in sec. 91, ‘ criminal
law, including procedure,’ read in
connection with the powers granted
to the provincial legislatures, I
apprehend these words must be
held to mean the general public
criminal law as existing either by
statute or at common law at the
time of confederation, or such mat-
ters as may by the Parliament of
the Dominion be declared to be
criminal, and would not include
such penal oﬁences might in
accordance with popular language
be comprised under the phrase
‘ criminal law,’ but which it is within
the power of the provincial legis-
lature to punish.”
Osler, J.: The criminal law, so
far as regards human legislation, in
its ultimate object, even when deal~
ing with public order, safety, or
morals, is chieﬂy concerned with
preventing and punishing the vio-
lation of personal rights and rights
respecting property, and hence in a
very wide sense with property and
civil rights. But while in this
sense, and in making provisions
applicable to the community at
large, whether we speak of all the
conferated provinces or of one, the
right to legislate rests with Parlia—
ment, I do not see how the right
can be denied to the provincial
assemblies to legislate for the better
protection of the rights of property
by preventing fraud in relation to
contracts or dealings in a particular
business or trade, or upon other
subjects coming within sec. 92, and
to punish the infraction of the law
in a suitable manner, so long, at all
events, as Parliament has not occu-
pied the precise ﬁeld ; for I suppose
it will not be denied that the latter
may draw into the domain of crim-
inal law an act which has hitherto
been punished only under a pro-
vincial statute. [Hodge v. Reg, sub-
sec. 9, sec. 92; 9App. Cas. p. 131.]
But if a particular species of fraud
has not been converted into a crime
by Dominion legislation, I think
that the local legislature must be
at liberty to deal with it for the
better protection of the class of
persons immediately affected by it.
The thing forbidden is not in such
B.N.A. ACT, s. 91 (27).——LEGN. AND FORGERY.
107
case converted into a crime merely
because it happens to be also mo-
rally wrong and dishonest, more
than any other thing which they
may lawfully forbid becomes a
crime because it is forbidden under
a penalty.”
In REG. *0. TOLAND (C. P.), July
28, 1892, 22 O. R. 505, it was held
ultra wires of the Ontario Legisla-
ture, 53 Vict. c. 18., to authorize
police magistrates to try and
convict persons charged with for-
gery; but in Beg. Iv. Levinger
(Q. B.), Dec. 241-, 1892, 22 O.
R. 690, Armour, J ., held the Act
of Legislature of Ontario, 53 Vict.
c. 18. s. 2., so far as it provided
that the courts of General Session
of the Peace should have juris-
diction to try any person for any
offence under any of the pro-
visions of sees. 28 to 31 of the
R. S. of C. c. 165., an Act res-
pecting forgery, was quite within
the powers of the Legislature of
Ontario, as being in relation to the
constitution of a provincial court of
criminal jurisdiction, and did not in
any way trench upon the exclusive
authority of the parliament of Canada
to make laws in relation to criminal
law and criminal procedure, it not
assuming to deal with the procedure
in such courts of General Sessions
of the Peace in the trial of any
such offence.”
In re County Courts of British
Columbia, Dec. 13,1892, 21 S. C. R.
446, it was held that an Act of the
Legislature of British Columbia,
providing that a certain county
court judge should as such act and
perform the duties in another district
than that which he was appointed
to until a judge is appointed, is valid.
CRIMINAL LAW.—Tlle Ministers
of Justice have always protested
when the local legislature consti-
tutes an offence a “ misdemeanour ”
as being a branch of the criminal
law, and not within the legal com-
petence of the provincial legisla~
ture. See Prov. Leg, 1886, pp.
605, 715.
Anything trenching upon the cri-
minal law so far as it relates to
general matters is not passed by the
Minister of Justice ; for instance, in
the Registration of Electors and
Ballot Act of Prince Edward Island,
187 7 , sec. 101, which provided that
whoever at any time before, during,
or after the polling “forge or
counterfeit, or fraudulently alter,
deface, or destroy any ballot paper
or the initials of the sheriff.” The
Minister of Justice, T. A. Lash,
2 May, 1878: So far as it relates
to the counterfeiting or fraudulent-
1y altering any ballot paper, the Act
clearly entrenched on the criminal
law, and he recommended its repeal
or amendment so as to obviate this
objection. So also where the
Ontario Legislature passed an Act,
31 Vict. c. 6., sec. 2., which declar-
ed that any wilfully false statement
made before commissioners autho-
rized to be appointed under the Act
should be a misdemeanour punish-
able in the same manner as wilful and
corrupt perjury. The Minister of
Justice, John A. Macdonald, held
this was legislation respecting the
criminal law, which appertains
solely to the Dominion Parliament,
and he recommended it be re-
pealed. And so it was. 32 Vict.
(Ont) c. 27. 1869.
With regard to an Act of the
New Brunswick Legislature, 49
Vict. c. 25., sec. 52, which provided,
inter alia, that all ﬁnes, penalties,
or forfeitures recovered before the
police magistrate of the town of
Marysville for any violation of any
statute or common law shall (so
far as the same shall not be in
conﬂict with any existing law) be
paid to the town treasurer. The
Minister of J usticc reported, 28
March 1887: “In view of the
summary jurisdiction exercised by
police magistrates under the
criminal law of Canada S.
C. c. 157. c. 174], it is desirable
that in all such cases as this the
language of the statute should show
clearly that there was no intention
to attempt to dispose of ﬁnes,
CRIMINAL I .Aw.
REG. v.
TOLAND.
108 B.N.A. ACT, s. 91 (2s), (29).--RELIEF BY coURT.
CRIMINAL LAW.
penalties, or forfeitures recovered
or enforced under the laws of
Canada contrary to any disposition
thereof from time to time made by
the Parliament of Canada.” Prov.
Leg, 1887, 165.
The Legislature of Ontario passed
an Act, 38 & 39 Vict. c. 16., which
provided, inter alia, that the. High
Court shall have power to relieve
against all penalties, forfeitures, and
agreements for liquidated damages,
and in granting such relief to impose
such terms as to costs, expenses,
damages, compensation, and all
other matters as the court thinks
ﬁt. The county courts and divi-
sion courts shall have like power
(subject to appeal) in regard to
causes of action Within their juris—
diction. The 'Minister of Justice,
J. S. 0. Thomson, considered this
applied only to matters Within the
jurisdiction of the provincial legis-
lature, and left the Act to its
operation.
(28.) The establishment, maintenance, and manage-
ment of penitentiaries.
(29.) Such classes of subjects as are expressly ex-
cepted in the enumeration of the classes of
subjects by this Act assigned exclusively to
the legislatures of the provinces.
1 And any matter coming Within any of the classes
of subjects enumerated in this section shall not be
deemed to come Within the class of matters of a local
or private nature comprised in the enumeration of the
classes of subjects by this Act assigned exclusively to
the legislatures of the provinces.
1 Read this with commencement of sec. 91.
B.N.A. ACT, 92.—PLENARY POWER.
109
Exclusive Powers of Proviuoial Legislatures.
92. In each province the legislature may exclusively
make laws in relation to matters coming within the
classes of subjects next herein-after enumerated; that
is to say,—--1
1 This section “confers powers
as plenary and as ample within
the limits prescribed by the section
as the Imperial Parliament in the
plenitude of its power possessed,
and could bestow. -Within these
limits of subject and area the
local legislature is supreme, and
has the same authority as the Im-
perial Parliament, or the Parlia-
ment of the Dominion would have
had under like circumstances to
conﬁde to a muncipal institution or
body of its own creation authority
to make bye-laws.” Hodge yr.
The Queen, 46 U. C. Q. B. 141,
30 June 1882, 7 O. A. It. 246;
in P. C. Dec. 15, 1883, 9 App.
Cas. p. 132, 53 L. J. P. C.
l; 50 L. T. 301, where held
the province of Ontario could en-
act regulations as to the liquor
traffic and annex penalties to the
breach of such regulations. [See
sub-sec. 9.] This case was com-
mented on in Maritime Bank of Ca-
nada 2.’. New Brunswick Receiver-
Greneral, July 2, [1892] A. C.
437; 61 L. J. P. C. 75; 67 L. T.
126; reported below, 17 and 20
S. C. R. 657, 695. [See Note, sub-
sec. 13, sec. 92.]
It was argued in THFJBERGE u.
LANDRY, in Quebec Q. B. 29 May
1876, in P. C.Nov. 7,1876, 2 App.
Cas. 102; 46 L. J.P. C. 1; 35 L. T.
640, that the Quebec Controverted
Elections Act, 187 5, 38 Vict. c. 8.
s. 90, which enacted the judgment of
the superior court in such cases shall
not be susceptible of appeal, was
inconsistent with sec. 92 of British
North America Act, 1867, because
it was ultra wires of the provincial
legislature to take away the right
of appeal.
By the Quebec Act of 187;.
(repealed by Quebec Act of 1875)
the decision of controvertcd elec~
tions was transferred from the
legislative assembly of the province
to the superior court.
Lord Cairns, L.C.,
the judgment of the Judicial
Committee. “Their Lordships
desire to state distinctly that
they do not desire to imply any
doubt whatever as to the general
principle, that the prerogative of
the Crown cannot be taken away ex-
cept by express words, and they
would be prepared to hold, as often
as has been held before, that in
any case where the prerogative of
the Crown has existed, precise
words must be shown to take away
that prerogative. But, in the opi-
nion of theirLordships, a somewhat
different question arises in the pre-
sent case. These two Acts of
Parliament, the Acts of 1872 and
187 5, are Acts peculiar in their
character. They are not Acts
constituting or providing for the
decision of mere ordinary civil
rights; they are Acts creating an
entirely new, and up to that time
unknown, jurisdiction in a particu-
lar court of the colony for the
purpose of taking out, with its
own consent, of the legislative as-
sembly, and vesting in that court-
that very peculiar jurisdiction,
which, up to that time, had existed
in the legislative assembly of de-
ciding election petitions, and deter-
mining the status of those who
claim to be members of the legisla-
tive assembly.
delivered
Subjects of
exclusive pro-
vincial legisla-
tion.
110
B.N.A. ACT, s. 92.—NEW TRIBUNALS.
TIIEBERGE v.
LANDRY.
“ A jurisdiction of that kind is
extremely special, and one of the
obvious incidents or consequence
of such a jurisdiction, by whomso-
ever it is to be exercised, should be '
exercised in a manner that should
as soon as possible become con—
elusive, and enable the constitu—
tion of the legislative assembly to
be distinctly and speedily known.”
[His Lordship read sections 89,
91, and 120.] The object which
the legislature had in view was to
have a decision of the superior
court, which, once arrived at, should
be for all purposes conclusive.
“But if the judgment of the
superior court should not be con-
clusive, the argument is that the
power which is to be brought to
bear to review the judgment is the
power of the Crown in Council.
Now, the subject-matter, of the
legislation is extremely peculiar.
It concerns the rights and privi-
leges of the electors and of the
legislative assembly to which they
elect members. Those rights and
privileges have always in every
colony, following the example of
the mother country, been jealously
maintained and guarded by the
legislative assembly. Above all
they have been looked upon as
rights and privileges which pertain
to the legislative assembly, in
complete independence of the
Crown, so far as they properly
exist. And it would be a result
somewhat surprising and hardly
in consonance with the general
scheme of the legislation, if, with
regard to rights and privileges of
this kind, it were to be found that
in the last resort the determination
of them no longer belonged to the
legislative assembly, no longer
belonged to the superior court
which the legislative assembly had
put in its place, but belonged to
the Crown in Council, with the
advice of the advisers of the Crown
at home, to be determined without
reference either to the judgment of
the legislative assembly'or of that
court which the legislative as-
sembly had substituted in its place.
These are considerations which
lead their Lordships not in any way
to infringe, which they would be
far from doing, upon the general
principle that the prerogative of
the Crown, once established, can-
not be taken away except by ex-
press words. Their. Lord-
ships have to consider not whether
there are express words here
taking away the prerogatlve,
but whether there ever was
the intention of creating this
tribunal with the ordinary inci-
dent of an appeal to the Crown.
In the opinion of their Lordships,
adverting to these considerations,
the 90th section, which says that the
judgment shall not be susceptible
of appeal, is an enactment which
indicates clearly the intention of
the legislature under this Act—
an Act which is assented to on the
part of the Crown and to which
the Crown therefore is a party—-
to create this tribunal for the pur-
pose of trying election petitions in
a manner which should make its
decision ﬁnal to all purposes, and
should not annex to it the incident
of its udgment being reviewed by
the Crown under its prerogative.”
“There is not in this case the
prerogative right to admit an ap~
peal.”
But their Lordships held that
even if there had been the power of
admitting an appeal, this was not a
casein which an appeal ought to
be admitted.
On the question whether, not
being an appeal generally, “there
was in the ﬁnding of the judge a
subordinate part which ought to
be brought by way of review before
this tribunal, it was said the udge
had found the petitioner was person-
ally guilty of corrupt practices,”
and then that the Quebec Act, by
sec. 267, provided that if it was
proved before the Court that cor-
rupt practices have been committed
by or with the actual knowledge of
any candidate, the candidate should
be incapable of being elected and sit-
B.N.A. ACT, S. 92 (1).-N0 PBEROGATIVE.
111
ting in, or voting for a member of,
the legislative assembly. “ Mr. Ben-
jamin contended that the Act of
Parliament, so far as it engrafted on
the decision of the judge this decla-
ration of incapacity, was ultra vires
the power of the legislature of the
province. Upon that point their
Lordships did not think it neces-
sary to express any opinion what-
ever.”
The ﬁrst step to be taken with
a view to test the validity of an
Act of the provincial legislature
is to consider whether the subject-
matter of the Act falls within any
class of subjects enumerated in
sec. 92. If it does not, then the
Act is of no validity; if it does,
then these further questions may
arise, namely: “ Whether, notwith-
standing that it is so, the subject of
the Act does not also fall within one
of the enumerated classes of subject
in sec. 91, and whether the power
of the provincial legislature is or
is not thereby overborne?” See
Lord Watson delivering judgment
in Dobie v. the Temporalities
Board, in Quebec Q. B. June 19,
1880, 26 L. C. J. 170; in P. C.
Jan. 21, 1882, 7 App. Cas. p.
149; 51 L. J. P. C. 26; 46 L. T. 1.
“There the subject-matter of
a provincial Act is not divisible
according to the limits of the pro-
vincial authority, a Dominion Act
is required to deal with the whole
subject-matter. But where by a
single Act of the Dominion Parlia-
ment there had been constituted
two separate corporations for the
purpose of working a mine within
the province of Upper Canada, and
the other a mine in the province of
Lower Canada, the legislature of
Quebec would clearly have had
authority to repeal the Act so far
as it related to the latter mine and
the corporation by which it was
worked. Ibz'd.
Where a railway is made a
federal affair and deemed to be
constructed under a special Act
of the Dominion Parliament, al-
though previously a railway incor-
porated by a provincial Act, a pro-
vincial Act affirming the transfer
of the whole railway, with all its
rights and property, to the pro-
vincial government, is not sutli-
cient to pass even some inchoate
rights. There must be an Act of
the Dominion Parliament. Bourgoin
2). La Compagnie 'du Chemin de
Fer de Montreal, Ottawa, et Occi-
dental, 23 L. C. J. 96; in P. C.
Feb. 26, 1880, 5 App. Cas. 381;
49 L. J. P. C. 62; 42 L. T.
414.
(1.) The amendment from time to time, notwith-
standing anything in this Act, of the con-
stitution of the province, except as regards
the office of Lieutenant-Governor.1
1 Arr. -GEN. on CANADA r.
AT'L—GEN. or ONTARIO, 1892,
19 O. A. R. 222; 20 O. R.
31, was an action seeking a de-
claration that the Ontario Act,
51 Vict. c. 5., respecting the execu-
tive administration of the laws of
Ontario was ultra wires of the pro-
vincial legislature. The Chancery
Division [Boyd, C., Ferguson, Ro-
bertson, JJ decided in favour of
its validity; and an appeal argued
before Hagarty, C.J.O., and Bur-
ton, Osler, and MacLennan, J J .A,,
was dismissed. Edward Blake, Q.C.,
in his argument for the respondents,
said: “Then when you come to
92-—‘ Exclusive powers of pro-
visional legislatures,’ you ﬁnd
‘the amendment of the Constitu-
tion,’ a power of the very highest
BoUReoIN’s
CAsE.
ATT.-GEN. or
CANADA v.
ATT.-GEN. OF
ONTARIO.
112 B.N.A. AcT, S 92 (1).-AMENDING coNsTITUTIoN.
Arr-GEN. OF
CANADA v.
ATT.-GEN. (F
ONTARIo.
QUIET v. REG.
and most sovereign character. The
B. N. A. Act, therefore, may be
amended by the provincial legis-
lature in this most vital point, a
power which the Canadian Parlia-
ment does not enjoy as to its con-
stitution, a power which indeed
could not there subsist without
certain safeguards, checks and
limitations, else the federal form
of the Constitution and the com-
pact on which it was based would
be imperilled. The Canadian Par-
liament has at present no power of
amending the Constitution of Can-
ada; while the provincial legis-
latures have power to amend their
constitutions, except with regard to
the Lieutenant-Governor. But for
that limitation, as already ex-
plained, they might break the link
altogether; they might forbid his
communicating with the Governor-
General; they might alter the
tenure of his office; they might
abolish it altogether. To avoid
such possibilities was the purpose
of the exception. But inasmuch
as they have power to amend the
Constitution, except as regards the
Lieutenant-Governor’s oﬂice, and
also, by the 64th section, have
power to abolish or alter his func-
tions and authorities, it is clear
that in all things, with the excep-
tion of a constitutional amendment.
affecting his oflice, they have power
to deal even with the Lieutenant-
Governor.
“ It is, as I have said, the Consti-
tution itself which is in this respect
not amendable. ‘ The amendment
of the Constitution of the pro-
vince.’ There is no limit as to
the amendability or repeal of Acts
existent at the date of, or which
might be passed thereafter under
the Constitution. The unity of the
executive authority would be im-
perilled, and the very object which
was contemplated by the reserva-
tion impaired by any other view.
The province can add to the exe-
cutive powers of the Lieutenant-
Governor in provincial affairs,
when necessary, in order to render
more efficient the administration of
those aﬁairs; when required in
order to effectuate legislative pro-
visions; and in all respects, ger-
mane to his office, in which further
grants of executive power may be
usefully given to that oﬂicer. It is
impossible that by such action the
Dominion authority of his position
can be affected; on the contrary,
the province thus magniﬁes his
place. There is in clause 92 a
whole series of what may be called
sovereign powers in the matter of
law making.
“Laws which are ‘ in relation
to matters coming within the enn-
merated classes of subjects’ are
laws within the exclusive power of
the legislature. The phrase is one
the terms of which are perhaps im-
possible of enlargement. It seems
to me that a legislature which may
make laws ‘in relation to matters
coming within the classes of enu-
merated subjects ’ may make a law
to supply any defect, and to grant
power to deal with any phase of
any matter involvingadministrative
action, for the more perfect opera-
tion of existing laws, or the more
complete execution of the will of
the legislature, as deﬁned in any
existing law, as well as in connec-
tion with contemporaneous or future
legislation.”
In QUIET r. REG, 1891, 19
S. C. R. p. 516, the Dominion
Parliament passed an Act trans-
ferring to trustees all the assets of
the Upper Canada Bank, it being
insolvent, for the purpose of wind-
ing up, and then passed another
Act transferring the assets from the
trustees to the Dominion Govern-
ment. Strong, J., said this might
be said to be a special and not a
general law; but it was, for all
that, intra ruires of the Dominion
under sub-sec. 21, sec. 91. [See
Note, ante, p. 85.]
B.N.A. ACT, S. 92 (2)—DIRECT TAXATION.
113
(2.) Direct taxation within the province in order to
the raising of a revenue for provincial pur-
poses.1
1 In Dow 'v. BLACK,111 S. C. N. B.
22 Feb. 1873, Ritchie, C.J., Allen
and Weldon, J J ., for invalidity,
Fisher, J ., for validity, 14 S. C.
N. B. (1 Pugs.) 300; in P. C.
March 5, 1875, L. R. 6 P. C.
272; 44 L. J. P. C. 52; 32
L. T. 274, the Judicial Com-
mittee, reversing the decision
of the Supreme Court of New
Brunswick, held that the pro-
vincial Act, 33 Vict. c. 47., enabling
the majority of the inhabitants of
the parish of St. Stephen by local
taxation to raise a subsidy designed
to promote a railway which they
considered for the beneﬁt of the
town, and which went to the
boundary line of the State of Maine
and the province of New Bruns-
wick, and which had been already
authorized by provincial statute
passed 10 June 1867, before the
Dominion Act came into operation,
was a good and valid law, and was
not ultra wires of the powers given
to the Dominion Parliament under
sub-sec. 3 of sec. 91 ; and that the
Act of the province was not ultra
wires on the ground that there was
no power in the provincial legisla-
ture to pass an Act by which such
an assessment as this could be im-
posed on the parish of St. Stephen’s,
for the reason that sec. 91, sub-
sec. 3, reserved to the Parliament
of Canada the exclusive power of
legislation in respect of “raising
money by any mode,” 850. But
the Judicial Committee conceived
that sub-sec. 3 of sec. 91 is to be
reconciled with sub_sec. 2 of sec. 92
by treating the former as empower-
ing the supreme legislature to raise
revenue by any mode of taxation,
whether direct or indirect, and the
latter as conﬁning the provincial
legislatures to direct taxation within
the province for provincial pur-
poses.
S 2340.
What was direct and indirect
taxation was debated in the Lambe
cases. These were :—
Bank of Toronto 1). Lambe;
Merchants’ Bank of Canada 11.
Lambe; Canadian Bank of Com-
merce u. Lambe, from the same
court and of the same date, and
North British Mercantile Insur-
ance Co. v. Lambe. Ramsay, Tes-
sier, and Baby, J J ., Dorion, C.J.,
and Cross, J ., dissenting, reversed
Sup. Ct. of 12 May 1883, and
affirmed Sup. Ct. of 23 _May 1884
(J etté, J The Judicial Com-
mittee heard all these cases to-
gether, and on July 9, 1887,
aﬂirmed the decisions appealed from
in Q. B. Quebec, Jan. 23, 1885, 29
L. C. J. 78; in P. C. July 9, 1887,
12 App. Cas. 575; 56 L. J. P. C.
87; 57 L. T. 377.
In 1882 the Quebec Legislature
passed an Act, 45 Vict. c. 22., to
impose certain direct taxes on cer-
tain commercial corporations. That
every bank carrying on business of
banking ; every insurance company
accepting risks and transacting the
business of insurance; every in-
corporated company carrying on
any labour, trade, or business; and
other companies carrying on busi-
ness in the province, should annu-
ally pay the several taxes thereby
imposed on them.
The Toronto Bank’s principal
place of business is at Toronto.
Its capital is kept there, and the
majority of it belonged to re—
sidents out of the province. The
Canadian Bank was in the same
position. The Merchants’ Bank was
not in so strong a position for
argument, as their head place of
business was in Montreal, and the
Insurance Company is taxed in a
sum speciﬁed in the Quebec Act,
and not with reference to its capital.
The banks say the provincial
legislature had no power to pass
H
TnE Lamar:
Cases.
114 B.N.A. ACT, .q. 92 (2).—TAXATION DIFFERENTIATED.
THE LAMBE
CAsEs.
this statute, because they said the
tax was an indirect one.
Lord Hobhouse, delivering the
judgment of the Committee, at
which were present also Lord Mac-
naghten, Sir Barnes Peacock, Sir
Richard Baggallay, and Sir Richard
Couch, said:
“ These appeals raise one of the
many difﬁcult questions which have
come up for judicial decision under
those provisions of the British
North America Act, 1867, which
apportion legislative powers be-
tween the Parliament of the Do-
minion and the legislatures of the
provinces. It is undoubtedly a
case of great constitutional import-
ance, as the appellants’ counsel
have earnestly impressed upon their
Lordships. But questions of this
class have been left for the decision
of the ordinary courts of law, who
must treat the provisions of the Act
in question by the same methods of
construction and exposition which
they apply to other statutes. A
number of incorporated companies
are resisting payment of a tax im-
posed by the Legislature of Quebec,
and four of them are the present
appellants. It will be convenient
ﬁrst to deal with the case of the
Bank of Toronto, which was argued
ﬁrst.
“In the year 1882 the Quebec
Legislature passed a statute en-
tituled ‘An Act to impose certain
direct taxes on certain commercial
corporations.’ It is thereby en-
acted that every bank carrying on
the business of banking in this
province; every insurance company
accepting risks and transacting the
business of insurance in this pro-
vince ; every incorporated company
carrying on any labour, trade, or
business in this province; and a
number of other speciﬁed com-
panies, shall annually pay the
several taxes thereby imposed, upon
them. In the case of banks, the
tax imposed is a sum varying with
the paid-up capital, and an addi-
tional sum for each office or place
of business.
“ The appellant bank was incor-
porated in the year 1855 by an
Act of the then Parliament of
Canada. Its principal place of
business is at Toronto, but it has
an agency at Montreal. Its capital
is said to be kept at Toronto, from
whence are transmitted the funds
necessary to carry on the business
at Montreal. The amount of its
capital at present belonging to per-
sons resident in the province of
Quebec, and the amount disposable
for the Montreal agency, are re-
spectively much less than the
amount belonging to other persons
and the amount disposable else-
where.
“ The bank resists payment of the
tax in question on the ground that
the Quebec Legislature had no
power to pass the statute which
imposes it. Mr. Justice Rainville,
sitting in the superior court, took
that view, and dismissed an action
brought by the Government officer,
who is the respondent. The Court
of Queen’s Bench, by a majority of
three udges to two, took the con-
trary view, and gave the plaintiff a
decree. The case comes here 011
appeal from that decree of the Court
of Queen’s Bench.
“ The principal grounds on which
the superior court rested its judg-
ment were as follows :-—That the
tax is an indirect one; that it is not
imposed within the limits of the
province; that the parliament has
exclusive power to regulate banks;
that the provincial legislature can
tax only that which exists by their
authority or is introduced by their
permission; and that if the power
to tax such banks as this exists,
they may be crushed out by it, and
so the power of the parliament to
create them may be nulliﬁed. The
grounds stated in the decree of the
Queen’s Bench are two, namely, that
the tax is a direct tax, and that it
is also a matter of a merely local or
private nature in the province, and
so falls within class 16 of the mat-
ters of provincial legislation. It
has not been contended at the bar
B.N.A. ACT, s. 92 (2).—-MILL’S DEFINITIONS.
115
that the provincial legislature can
tax only that which exists 011 their
authority or permission. And when
the appellants’ counsel were pro-
ceeding to argue that the tax did
not fall within class 16, their Lord-
ships intimated that they would
prefer to hear ﬁrst what could be
said in favour of the opposite view.
All the other grounds have been
argued very fully, and their Lord-
ships must add very ably, at the
bar.
“ To ascertain whether or no the
tax is lawfully imposed, it will be
best to follow the method of inquiry
adopted in other cases. First, does
it fall within the description of
taxation allowed by class 2 of sec.
92 of the Federation Act, namely,
‘ Direct taxation within the pro-
vince in order to the raising of a
revenue for provincial purposes’?
Secondly, if it does, are we com-
pelled by anything in sec. 91, or in
the other parts of the Act, so to
cut down the full meaning of the
words of sec. 92 that they shall not
cover this tax P
“First, the tax a direct tax?
For the argument of this ques-
tion the opinions of a great many
writers on political economy have
been cited, and it is quite proper,
or rather necessary, to have careful
regard to such opinions, as has been
said in previous cases before this
board. But it must not be forgot-
ten that the question is a legal one,
namely, what the words mean, as
used in this statute ; whereas the eco-
nomists are always seeking to trace
the effect of taxation throughout
the community, and are apt to use
the words ‘direct,’ and ‘indirect,’
according as they ﬁnd that the bur-
den of a tax abides more or less
with the person who ﬁrst pays it.
This distinction is illustrated very
clearly by the quotations from a
very able and clear thinker, the
late Mr. Fawcett, who, after giving
his tests of direct and indirect
taxation, makes remarks to the
effect that a tax may be made
direct or indirect by the position of
the taxpayers or by private bar-
gains about its payment. Doubt-
less, such remarks have their value
in an economical discussion. Pro-
bably it is true of every indirect
tax that some persons are both the
ﬁrst and the ﬁnal payers of it ; and
of every direct tax that it affects
persons other than the ﬁrst payers ;
and the excellence of an econo-
mist’s deﬁnition will be measured
by the accuracy with which it con-
templates and embraces every inci-
dent of the thing deﬁned. But
that very excellence impairs its
value for the purposes of the law-
yer. The legislature cannot possi-
bly have meant to give a power of
taxation valid or invalid according
to its actual results in particular
cases. It must have contemplated
some tangible dividing line refer-
able to and ascertainable by the
general tendencies of the tax and
the common understanding of men
as to those tendencies.
“ After some consideration, Mr.
Kerr [counsel for appellant] chose
the deﬁnition of John Stuart Mill
as the one he would prefer to abide
by. That deﬁnition is as follows :—
“ ‘ Taxes are either direct or
indirect. A direct tax is one
which is demanded from the very
persons who, it is intended or de-
sired, should pay it. Indirect
taxes are those which are demand-
ed from one person in the expecta-
tion and intention that he shall
indemnify himself at the expense
of another: such are the excise or
customs. [Italics by their Lord-
ships]
“ ‘ The producer or importer of
a commodity is called upon to pay
a tax on it, not with the intention
to levy a peculiar contribution upon
him, but to tax through him the
consumers of the commodity, from
whom it is supposed that he will
recover the amount by means of an
advance in price.’-B. 5, ch. 3.
“ It is said that Mill adds a term——
that to be strictly direct a tax must
be general; and this condition was
much pressed at the bar. Their
THE LAM nr.
CAsEs.
112
116
B.N.A. ACT, s. 92 (2).-—-INCOME TAX “DIRECT.”
Tun LAMBE
CASES.
Lordships have not thought it
necessary to examine Mill’s works
for the purpose of ascertaining pre-
cisely what he does say on this
point; nor would they presume to
say whether for economical pur-
poses such a condition is sound or
unsound; but they have no hesi-
tation in rejecting it for legal pur-
poses. It would deny the charac-
ter of a direct tax to the income—
tax of this country, which is always
spoken of as such, and is generally
looked upon as a direct tax of the
most obvious kind; and it would
run counter to the common under-
standing of men on this subject,
which is one main clue to the
meaning of the legislature.
“Their Lordships, then, take
Mill’s deﬁnition above quoted as a
fair basis for testing the character
of the tax in question, not only be-
cause it is chosen by the appellants’
counsel, nor only because it is that
of an eminent writer, nor with the
intention that it should be con-
sidered a binding legal deﬁnition,
but because it seems to them to em-
body with sufﬁcient accuracy for
this purpose an understanding of
the most obvious indie-la of direct
and indirect taxation, which is a
common understanding, and is
likely to have been present to the
minds of those who passed the
Federation Act.
“ Now whether the probabilities
of the case or the frame of the
Quebec Act are considered, it ap-
pears to their Lordships that the
Quebec Legislature must have in-
tended and desired that the very
corporations from whom the tax is
demanded should pay and ﬁnally
bear it. It is carefully designed
for that purpose. It is not like a
custom’s duty, which enters at once
into the price of the taxed com-
modity. There the tax is demand-
ed of the importer, while nobody
expects or intends that he shall
ﬁnally bear it. All scientiﬁc econo-
mists teach that it is paid, and
scientiﬁc ﬁnanciers intend that it
shall be paid, by the consumer;
and even those who do not accept
the conclusions of the economists
maintain that it is paid, and intend
it to be paid, by the foreign pro-
ducer. Nobody thinks that it is,
or intends that it shall be, paid by
the importer from whom it is de-
manded. But the tax now in
question is demanded directly of
the bank, apparently for the reason-
able purpose of getting contribu-
tions for provincial purposes from
those who are making proﬁts by
provincial business. It is not a tax
on any commodity which the bank
deals in and can sell at an enhanced
price to its customers. It is not a
tax on its proﬁts, nor on its several
transactions. It is a direct lump
sum, to be assessed by simple refer-
ence to its paid-up capital and its
places of business. It may possibly
happen that in the intricacies of
mercantile dealings the bank may
ﬁnd a way to recoup itself out of
the pockets of its Quebec custo-
mers. But the way must be an
obscure and circuitous one, the
amount of recoupment cannot hear
any direct relation to the amount
of tax paid, and if the bank does
manage it, the result Will not im-
probably disappoint the intention
and desire of the Quebec Govern-
ment. For these reasons their
Lordships hold the tax to be direct
taxation within class 2 of sec. 92 of
the Federation Act.
“ There is nothing in the pre-
vious decisions on the question of
direct taxation which is adverse to
this view. In the case of the Queen
Insurance Company, 3 App. Cas.
1,090, the disputed tax was im-
posed under cover of a license to
be taken out by insurers. But
nothing was to be paid directly on
the license, nor was any penalty
imposed upon failure to take one.
The price of the license was to be
a percentage on the premiums re-
ceived for insurances, each of which
was to be stamped accordingly.
Such a tax would fall within any
deﬁnition of indirect taxation, and
the form given to it was apparently
B.N.A. ACT, s. 92 (2).--~TAXATI()N & DoMIoILE. 117
with the view of bringing it under
by variable accounts or any uncer- THE LAMBE
class 9 of sec. 92, which relates to
tain standard. It has adopted its CASES-
licenses. 1n Reed’s case, 10 App.
Cas. 141, the tax was a stamp duty
on exhibits produced in courts of
law, which in a great many, per-
haps most, instances would cer-
tainly not be paid by the per-
son ﬁrst chargeable with it. In
Severn’s case, 2 S. C. R. p. 70,
the tax in question was one for
licenses which, by a law of the
legislature of Ontario, were re-
quired to be taken for dealing in ,
liquors. The Supreme Court held
the law to be ultra 'vires, mainly
on the grounds that such licenses
did not fall within class 9 of sec.
92, and that they were in conﬂict
with the powers of parliament
under class 2 of sec. 91. It is true
that all the judges expressed
opinions that the tax, being a
license duty, was not a direct tax.
Their reasons do not clearly appear,
but, as the tax now in question is
not either in substance or in form
a license duty, further examination
of that point is unnecessary.
“ The next question is, whether
the tax is taxation within the pro-
vince. It is urged that the bank
is a Toronto corporation, having
its domicile there, and having its
capital placed there; that the tax
is on the capital of the bank;
that it must therefore fall on a per-
son or persons, or on property, not
within Quebec. The answer to
this argument is that class 2 of
sec. 92 does not require that the
persons to be taxed by Quebec are
to be domiciled or even resident in
Quebec. Any person found within
the province may legally be taxed
there if taxed directly. This bank
is found to be carrying on business
there, and on that ground alone it
is taxed. There is no attempt to
tax the capital of the bank, any
more than its proﬁts. The bank
itself is directly ordered to pay a
sum of money; but the legislature
has not chosen to tax every bank,
small or large, alike, nor to leave
the amount of tax to be ascertained
own measure, either of that which
it is just the banks should pay, or
of that which they have means to
pay, and these things it ascertains
by reference to facts which can be
verified without doubt or delay.
The banks are to pay so much, not
according to their capital, but ac-
cording to their paid-up capital,
and so much on their places of
business. \Vhether this method of
assessing a tax is sound or unsound,
wise or unwise, is a point on which
their Lordships have no opinion,
and are not called on to form one,
for as it does not carry the taxation
out of the province, it is for the
legislature and not for courts of
law to judge of its expediency.
“Then is there anything in
sec. 91 which operates to restrict
the meaning above ascribed to
sec. 92? Class 3 certainly is in
literal conﬂict with it. It is im-
possible to give exclusively to the
Dominion the whole subject of
raising money by any mode of
taxation, and at the same time to
give to the provincial legislatures,
exclusively or at all, the power of
direct taxation for provincial or
any other purposes. This very
conﬂict between the two sections
was noticed by way of illustration
in the case of Parsons, 9 App.
Cas. p. 108. Their Lordships
there said :—-‘So “the raising of
money by any mode or system of
taxation ” is enumerated among the
classes of subjects in sec. 91 ; but,
though the description is suﬂici-
ently large and general to include
“direct taxation within the pro-
vince, in order to the raising of a
revenue for provincial purposes,”
assigned to the provincial legisla-
tures by sec. 92, it obviously could
not have been intended that, in this
instance also, the general power
should override the particular one.’
Their Lordships adhere to that
view, and hold that, as regards
direct taxation within the province
to raise revenue for provincial pur-
118 B.N.A. ACT, s. 92 (2).-POWER UNWISELY USED.
THE LAMBE
CAsEs.
l-HARsHALL, OJ.
poses, that subject falls wholly
within the jurisdiction of the pro-
vincial legislatures.
“ It has been earnestly contended
that the taxation of banks would
unduly cut down the powers of the
parliament in relation to matters
falling within class 2, namely, the
regulation of trade and commerce;
and within class 15, namely, bank-
ing, and the incorporation of banks.
Their Lordships think that this
contention gives far too wide an
extent to the classes in question.
They cannot see how the power of
making banks contribute to the
public objects of the provinces
where they carry 011 business can
interfere at all with the power of
making laws on the subject of
banking, or with the power of in-
corporating banks. The words
‘ regulation of trade and commerce ’
are indeed very wide, and in
Severn’s case it was the view of
the Supreme Court that they oper-
ated to invalidate the license duty
which was there in question. But
since that case was decided the
question has been more completely
sifted before the Committee in
Parsons’ case, 7 App. Cas. 96, and
it was found absolutely necessary
that the literal meaning of the
words should be restricted, in order
to aﬁord scope for powers which
are given exclusively to the pro-
vincial legislatures. It was there
thrown out that the power of regu-
lation given to the parliament
meant some general or inter-pro-
vincial regulations. No further
attempt to define the subject need
now be made, because their Lord-
ships are clear that if they were to
hold that this power of regulation
prohibited any provincial taxation
on the persons or things regulated,
so far from restricting the expres-
sions, as was found necessary in
Parsons’ case, they would be strain-
ing them to their widest conceivable
extent.
“ Then it is suggested that the
legislature may lay on taxes so
heavy as to crush a bank out of
existence, and so to nullify the
power of parliament to erect banks.
But their Lordships cannot con-
ceive that when the Imperial Par-
liament conferred wide powers of
local self-government on great
countries such as Quebec, it in-
tended to limit them on the specu-
lation that they would be used in
an injurious manner. People who
are trusted with the great power of
making laws for property and civil
rights may well be trusted to levy
taxes. There are obvious reasons
for conﬁning their power to direct
taxes and licenses, because the
power of indirect taxation would
be felt all over the Dominion. But
whatever power falls within the
legitimate meaning of classes 2 and
9, is, in their Lordships’ judgment,
what the Imperial Parliament in-
tended to give; and to place a
limit on it because the power may
be used unwisely, as all powers
may, would be an error, and would
lead to insuperable difliculties in the
construction of the Federation Act.
“Their Lordships have been
invited to take a very wide range
on this part of the case, and to
apply to the construction of the
Federation Act the principles laid
down for the United States by
Chief Justice Marshall. [Lough-
borough 2:. Blake, 18 S. C. U.
S. (5 Wheat.) 317.] Every one
would gladly accept the guid-
ance of that great judge in a
parallel case. But he was dealing
with the Constitution of the United
States. Under that Constitution,
as their Lordships understand, each
State may make laws for itself, un-
controlled by the Federal power,
and subject only to the limits
placed by law on the range of
subjects within its jurisdiction. In
such a Constitution Chief Justice
Marshall found one of those limits
at the point at which the action
of the State legislature came into
conﬂict with the power vested in
Congress. The appellant invokes
that principle to support the con-
clusion that the Federation Act
B.N.A: ACT, s. 92 (2).--IMPOT DES PATENTES.
119
must be so construed as to allow no
power to the provincial legislatures
under sec. 92, which may by possi-
bility, and if exercised in some ex-
travagant way, interfere with the
objects of the Dominion in exer-
cising their powers under sec. 91.
It is quite impossible to argue from
the one case to the other. Their
Lordships have to construe the ex-
press words of an Act of Parlia-
ment which makes an elaborate
distribution of the whole ﬁeld of
legislative authority between two
legislative bodies, and at the same
time provides for the federated pro-
vinces a carefully balanced consti-
tution, under which no one of the
parts can pass laws for itself except
under the control of the whole act-
ing through the Governor-General.
And the question they have to
answer is Whether the one body or
the other has power to make a
given law. If they ﬁnd that on
the due construction of the Act a
legislative power falls within sec. 92,
it would be quite wrong of them to
deny its existence because by some
possibility it may be abused, or may
limit the range which otherwise
would be open to the Dominion
Parliament.
“It only remains to refer to
some of the grounds taken by the
learned judges of the lower courts,
which have been strongly objected
to at the bar. Great importance
has been attached to French
authorities who lay down that the
impé't des patentes, which is a tax
on trades, and which may possibly
have afforded hints for the Quebec
law, is a direct tax. And it has
been suggested that the provincial
legislatures possess powers of legis-
lation either inherent in them, or
dating from a time anterior to the
Federation Act and not taken away
by that Act. Their Lordships have
not thought it necessary to call on
the respondents’ counsel, and there-
fore possibly have not heard all
that may be said in support of
such views. But the judgments
below are so ‘carefully reasoned,
and the citation and discussion of
them here has been so full and
elaborate, that their Lordships feel
justiﬁed in expressing their present
dissent on these points. They can-
not think that the French authori-
ties are useful for anything but
illustration. And they adhere to
the view which has always been
taken by this Committee, that the
Federation Act exhausts the whole
range of legislative power, and that
whatever is not thereby given to
the provincial legislatures rests with
the parliament.
“ The result is that, though not
wholly for the same reasons, their
Lordships agree with the Court of
Queen’s Bench. And they will
humbly advise Her Majesty to
aﬁirm their decree, and to dismiss
the appeal of the Bank of Toronto.
“The other three cases possess
no points of distinction in favour
of the appellants. The cases
have been treated as substantially
identical in the courts below, and
their Lordships will take the same
course with respect to all of them.”
In ATT.-GEN. roR QUEBEC r.
REED, in Quebec Q. B. 24 Nov.
1882 [Monk, Ramsay, Tessier, and
Cross, J J ., Dorion, C.J., dissenting,
reversed Sup. C., Mackay, J ; in S.
C. June 18, 1883, 8 S. C. R. 408
[Ritchie, C.J., Fournier, Henry,
& Gwynne, J J ., Strong and Tasch-
ereau, J J ., dissenting, reversed
Q. B.] ; in P. C. Nov. 26, 1884, 10
App. Cas. 141; 54 L. J. P. C. 12;
52 L. T. 393. The question was,
Can a charge of ten cents imposed
by an Act of the Quebec Legisla-
ture, 43 & 44 Vict. c. 9., upon ex-
hibits used in the courts of justice
of the province, be justiﬁed under
this sub-sec 2? Earl Selborne,
L.C., adopted what Mill on Politi-
cal Economy said—that a direct tax
is “one which is demanded from
the very persons who it is intended
or desired should pay it.” And
then the converse deﬁnition of
indirect taxes is, “ Those which
T HE LAMBE
CAsEs.
A'1‘T.-GEN. ron
QUEBEC v.
REED.
120
B.N.A. ACT, s. 92 (2).—-TEST OF TAXATION.
Arr-GEN. FOR
QUEBEC v.
REED.
are demanded from one person
in the expectation and intention
that he shall indemnify himself at
the expense of another.” Can it
be said “ A stamp duty in the
nature of a fee payable upon a step
of a proceeding in the administra-
tion of justice is one which is de-
manded from the very persons who
it is intended or desired should pay
it P It must be paid in the course
of the legal proceeding, whether that
is of a friendly or of a litigious na-
ture, and from the very nature
of such proceedings, until they ter~
minate, as a rule, and speaking
generally, the ultimate incidence of '
of such a payment cannot be ascer-
tained. In most proceedings
of a contentious character the person
who pays it is a litigant expecting
or hoping for success in the suit;
and, whether he or his adversary
will have to pay it in the end, must
depend 011 the ultimate termination
of the controversy between them.
The legislature, in imposing the
tax, cannot have in contemplation,
one way or the other, the ultimate
determination of the suit, or the
ﬁnal incidence of the burden,
whether upon the person who had
to pay it at the moment when it was
exigible, or upon anyone else.
The question whether it is a
direct or an indirect tax cannot de-
pend upon those special events,
which may vary in particular
cases; but the best general rule is
to look to the time of payment; and
if at the time the ultimate inci-
dence is uncertain, then, it cannot,
in this view, he called direct taxa-
tion within the meaning of this
sub-section ” [See for second part
of this judgment sub-sec. 14, sec.
92, and for the latter part sec. 65.]
The New Brunswick Act, 47
Vict. c. 19., respecting law stamps,
made provision for the collection
by means of stamps of fees in
legal proceedings in the Supreme
Court. These fees, it was enacted,
when collected were to be paid to
the Receiver-General of the pro-
vince, and be under the control
and management of the executive
government of the province. The
Minister of Justice (A. Campbell),
26 March 1885, recommended that
the attention of the Lieutenant-
Governor be called to the decision of
Att—Gen. of Quebec 1). Reed, and
in the meantime the consideration
of the Act be deferred. The min-
ister added their Lordships did not
express any opinion as to whether
or not a provincial legislature can
authorize the collection of fees in
respect of legal proceedings in
courts of justice not for the general
purposes of the province, but in
aid of a special fund or of the
administration of justice in the
province. The matter is, however,
of so much importance to the pro-
vince, and the power to impose
fees in this and other cases has
been so ‘generally exercised by the
provincial legislatures, that it is de-
sirable to give the legislature of
New Brunswick every opportunity
to amend the Act so that it may, if
that is possible, be brought within
the legislative authority of that legis-
lature. Prov. Leg, 1886, p. 571.
In Arr-GEN. roe QUEBEC 2:. THE
QUEEN INSURANCE Co., in Sup. C.
Mon, April 12, 1877, 21 L. C. J.
77 [Torrance, J ;aﬁ’irmed by Que-
bec Q. B. 14 Dec. 1877 [Dorion,
C.J., 'l‘aschereau, Monk, Tessier,
JJ., Ramsay, J ., dissenting], 22
L. C. J. 307; in P. C. July
5, 1878, 3 App. Cas. 1090, 38
L. T. 897. Sir Geo. Jesse],
M.R., delivered judgment. The
question for decision was whether
the clauses of the Quebec Act,
39 Vict. c 7 , which imposed a tax
upon certain policies of assurance,
and certain receipts or renewals,
were not authorized by the B. N.
A. Act, 1867 , under sec. 92. The
powers of sub-secs. 2 and 9 “may
co-exist with the powers conferred
on the legislature of the Dominion
by the 91st section. Assuming
that to be so, the question is,
whether what has been done is
authorized by those‘ powers.” His
B.N.A. ACT, s. 92 (2)—CATEGORY OFTAXATION.
121
Lordship (p. 1100), after ﬁnding it
did not come under sub-sec. 9, sec. 92
[see that section, p. 127] , continued :
“ The single point to be decided
on this [sub-sec. 2] is whether a
Stamp Act—an Act imposing a
stamp on policies, renewals, and
receipts, with provisions for avoid-
ing the policy, renewal, or receipt,
in a court of law, if the stamp is
not aﬂixed,-—is or is not direct
taxation P What is the
meaning of the words as words of
the article? \Ve may consider their
meaning as words used in the sense
of political economy, or as words
used in jurisprudence in the courts
of law. Taken in either way, there
is a multitude of authorities to
show that such a stamp imposed
by the legislature is not direct
taxation. The political economists
are all agreed. There is not a
single instance produced on the
other side. The number of in-
stances cited by rTaschereau, J ., in
his elaborate judgment it is not
necessary here to do more than
refer to.” “ As regards judicial in-
terpretation, there are some E n glish
decisions and several American de-
cisions on the subject, many of
which are referred to in the judg-
ment of Taschereau, J. There,
again, they are all one way. They
all treat stamps either as indirect
taxation, or as not being direct
taxation.” “ Lastly, as regards the
popular use of the words, two
cyclopaedias at least have been pro-
duced, showing that the popular
use of the words is entirely the
same in this respect as the technical
use of the words. And here, again,
there is an utter deﬁciency on the
part of the appellant in producing
a single instance to the contrary.
That being so, it is not necessary to
consider the scientiﬁc deﬁnition of
direct or indirect taxation. All that
it is necessary for them to say is,
that ﬁnding these words used in
an Act of Parliament, and ﬁnding
that all the then known deﬁnitions,
whether technical or general, would
exclude this kind of taxation from
the category of direct taxation,
they must consider it was not the
intention of the legislature of
England to include it in the terms
‘ direct taxation,’ and therefore
that the imposition of this stamp
duty is not warranted by the terms
of the 2nd sub-section of section 92
of the Dominion Act. That being
so, the appeal fails.”
The cases cited by Taschereau
were Loughborough 7:. Blake, 1820,
18 S. C.U. S. (5 lVheat.) 317; Vea-
zie Bank 1'. Fenno, 1869, 75 S. C.
U. S. (8 Wall) 533; Paciﬁc In-
surance Co. r. Soule, 1868, 74
S. C. U. S. (7 \Vall) 433; and 2
l\Iill’s P. E., B. 5, ch. 3; 3 Smith’s
WV. of N. (10th ed.) 315; Mac
Donnell’s P. E. 346; McCulloch,
pp. 1, 242 ; and Hilliard, par. 60.
Sir Montague Smith said in
CITIZEN-s’ INSURANCE CO. e. PAR-
SONS, Nov. 26, 1881, 7 App. Cas. p.
108; 51 L. J. P. C. 11; 45 L. T.
721 ; in the court below 4 S. C. R.
215, that “ The raising of money by
any mode or system of taxation is
enumerated among the classes of
sec. 91 [sub-sec. 3], but though
the description suﬂiciently large
and general to include ‘ direct taxa~
tion within the province, in order
to the raising of a revenue for pro-
vincial purposes’ assigned to the
provincial legislatures by sec. 92,
it obviously could not have been
intended that the general power
should override the particular one.”
[See sub-sec. 13, post]
In LYNCH r. CANADA N. W.
LAND C0., June 22, 1891, 19
S. C. R. 214, Ritchie, C.J., said:
The B. N. A. Act having given
the power of legislation over direct
taxation within the provincies in
order to the raising of a revenue
for provincial purposes, and over
municipal institutions in the pro-
vinces, exclusively to the provincial
legislatures, these bodies were not
restricted to the manner or extent
to which those powers should
be exercised. And it was not
ultra wires of the Manitoba Legis-
.-\Tr.-GEN. FOR
QUEBEC v.
QUEEN Insur—
alvcE Co.
CITIZENS’ IN-
SURANCE Co. v.
PAEsoNs.
LYNCH v.
CANADA N. \V.
IJAND CO.
122
B.N.A. ACT, 92 (2).—CERTIORABI APPEAL.
LYNCH v.
CANADA N. W.
LAND Co.
BULL v. WING
CHoNe.
CHINESE CASE.
lature to enforce an additional 10
per cent. from a defaulting tax-
payer for not paying his taxes by
a certain date. [See sub-sec. 19,
sec. 91.]
When funds belonging to a cor-
poration in Ontario are so situated
or invested in the province of Que-
bec, the legislature of Quebec may
impose direct taxes upon them
for provincial purposes, as autho-
rized by sec. 92, sub-sec. 2, or may
impose conditions on the transfer
or realization of such funds. Dobie
Iv. Temporalities Board, in the Ct.
Q. B., Quebec, June 19, 1880, 26
L. C. J. 170; in P. C. Jan. 21,
1882, 7 App. Cas. 136; 51 L.J. P.
C. 26; 46 L. T. 1 [see sub-sec. 13].
The provincial legislatures will
act ultra vires by passing a law
which discriminates in the imposi-
tion of direct taxation for the pur-
pose of provincial revenue.
In BULL v. WING CHoNe, alias
CHU LAY, Bull, in his petition to
the P. C., set out the following facts
in asking for special leave to appeal.
On the 18th Feb. 1884, the legis-
lature of the province of British
Columbia passed the Act regulating
the Chinese population of British
Columbia, called the Chinese Regu-
lation Act. It was not disallowed
by the Governor—General of Canada
in Council, and came into force 18th
Feb. 1885. On the 4th June,
Edwin Johnson, police magistrate
of the city of Victoria, on the infor-
mation of the Chinese collector,
convicted Wing Chong, alias Chu
Lay, the respondent, for that he on
the 21st May 1885, being a
Chinese, was found not having
in his possession a license issued
under the provisions of the Act of
1884, and ﬁned Wing Chong,
alias Chu Lay, $20. On 3 July
1885, at the instance of the respon-
dent, a writ of certz'oram' was issued
out of the Supreme Court of British
Columbia, commanding Edwin
Johnson to return into said Su-
preme Court of British Columbia
all the depositions, &c., taken in
the case. That on the return of
this certz'oram', Crease, J ., one of
the judges of the Supreme Court of
British Columbia, quashed the con-
viction on the ground, inter alia,
that the said “Chinese Regulation
Act, 1884, was ultra wires the
legislative assembly of British Co-
lumbia.” The order quashing the
said conviction was not served until
13 Jan. 1886. The petitioner is
advised there is no appeal from
the decision of Crease, J ., to the
Supreme Court of British Columbia
sitting as a full court; that al-
though the amount of the ﬁne im-
posed by the conviction is small,
the question in issue is of great
public importance, involving as it
does the power of the provincial
legislature under the B. N. A.
Act to discriminate in the imposi-
tion of direct taxation for purposes
of revenue and police; the pro-
ceedings against the respondent,
and this appeal, having been under-
taken by the petitioner by the
direction of the Government of the
province of British Columbia; and
the petitioner asked for special
leave to appeal.
By Order in Council dated
3rd April 1886, and on the
report of the Judicial Committee
dated 20 March 1886, who,
having heard counsel for the pe-
titioner, reported their opinion that
leave ought to be granted to W. K.
Bull to enter into and prosecute his
appeal from the order of Crease, J .,
of 21 Aug. 1885, upon depositing
in the Privy Council the sum of
$300 as security for costs, order
accordingly. On 13 Aug. 1886,
the Registrar of the Privy Council
writes that as no steps were taken
for the prosecution of this appeal,
and as on 22 July that depart-
ment was informed that the Attor-
ney-General for British Columbia
does not intend to proceed with
the appeal, on 3 Aug. 1886 the
order giving leave to appeal was
rescinded. Prov. Leg, 1887, pp.
258-267. This Act was passed
under sec. 95, which see.
B.N.A. Ac'r, 9. 92 (3)—(6).—M1NES AND MINERALS. 128
The borrowing of money on the sole credit of
the province.
The establishment and tenure of provincial offices
and the appointment and payment of pro-
vincial officers.1
1 This sub-section was discussed
in GOVERNOR-GENERAL DOMINION
'v. THE FOUR PRovINoEs, in Privy
Council 12 Nov. 1885, a question
which was specially referred as to
the validity of the Dominion Liquor
License Act, 1883—4. [See sub-secs.
8 and 9.] It was argued in that case
that if the legislation was decided to
be provincial legislation, with which
the provinces only have the right
to deal, then the ofﬁcers might be
said to be provincial; but if it is a
matter within the Dominion Parlia-
ment, and they appoint oﬁicials for
carrying it out, those olﬁcials are
Dominion oiﬁcials just as much as
the Customs ofﬁcials are who act in
each province.
The management and sale of the public lands
belonging to the province, and of the timber
and wood thereon.1
1 In ST. CATHERINE’s MILLING
AND LUMBER CO. v. THE QUEEN,
Dec. 12, 1888, 14 App. Cas. 46;
58 L. J. P. C. 54; 60 L. T. 197;
and in court below 13 S. C. R. 577,
it was held that the Indian re-
served lands belong to the Crown for
the beneﬁt of the provinces in which
they are situate [see ante, p. 94].
See also Att.-Gen. of Ontario 22.
Mercer, 18 July 1883, 8 App. Cas.
767; 52 L. J. P. C. 84; 49 L. T.
312; 5 S. C. R. 538 [see fully
sec. 109].
And in ATTORNEY-GENERAL OF
BRITISH COLUMBIA v. ATTORNEY-
GENERAL OF CANADA, April 3,
1889, 14 App. Cas. 295; 58 L. J.
P. C. 88; 60 L. T. 712, and in
court below 14 S. C. R. 345, it was
held that “public lands ” in this
section included mines and minerals
upon such lands, although the lands
had been granted for a railway,
Columbian Railway Acts, 43 Vict.
c. 11. and 47 Vict. c. 14. No
transfer of the prerogative right
there took place, the grant not
being to the Dominion but to the
Canadian Paciﬁc Railway. [See
sec. 109 for full report]
(6.) The establishment, maintenance, and manage-
ment of public and reformatory prisons in
and for the province.1
1 By the Dominion Temperance
Act, 1878, a punishment of im—
prisonment was ordered on all who
sold liquor after third oifence
wherever in the Dominion the Act
had been adopted by the munici-
palities, and the Judicial Committee
held the Act valid. See Russell E.
The Queen, 1882, 7 App. Cas.
829; 51 L. J. P. C. 77; 46 L. T.
889 [post, sub-sec. 9].
GovERNoR-
GENERAL Do-
MINION v. THE
FOUR PR0-
vINcEs.
ST. CATHE-
RINE’s MILLING
AND LUMBER
Co. v. THE
QUEEN.
124
B.N.A. ACT, s. 92 (7), (8).--OHARITIES, WHAT?
DOBIE v. THE ,
TEMPORALITIES
BOARD.
RUssELL v. THE
QUEEN.
REG. v.
WAsoN.
(7 The establishment, maintenance, and manage-
ment of hospitals, asylums, charities, and
eleemosynary institutions in and for the pro-
vince, other than marine hospitals.1
1 In DoBIE v. THE TEMPORALI-
TIEs BOARD, Jan. 21,1882, 7 App.
Cas.136; 51 L. J. P. C. 26; 46
L. T. 1; and in the court below
26 L. C. J. 170 [see full report,
sub-sec. 13], the Judicial Com-
mittee held that the Quebec Act, 38
Vict. c. 64., which was an attempt
to repeal an Act of the province
of Canada, 22 Vict. 66., creating a
trust corporation of the funds of
the Presbyterian Church of Canada
in connection with the Church of
Scotland, and which had its sphere
of location and duty in Ontario and
Quebec, was not valid under this
sub-section. Held also that even
assuming the temporalities fund
might be correctly described as
“charity,” or as an “ eleemosynary
institution,” it is not in any sense
established, maintained, or managed
“in or for ” the province of Quebec,
and if the Board incorporated by
the Act of 1858 (22 Vict. c. 66.)
could be held to be a “ company ”
within the meaning of sub-sec. 11,
sec. 92, its objects are certainly not
provincial.
(8.) Municipal institutions in the province.1
1 The Dominion Parliament may
pass an Act which the municipali-
ties may adopt, and which and
when they do becomes good law.
In RUSSELL v. THE QUEEN,
1882, 7 App. Cas. 829; 51 L. J.
P. C. 77; 46 L. T. 889; in the
S. C. N. B. 1881, 20 S. C.
N. B. (4 Pugs. and B.) 536,
the Judicial Committee held the
Dominion Temperance Act, 187 8,
to be valid, although it interfered
to some extent with the product of
spirit licenses of the provinces. It
enacts that when adopted by the
municipalities the sale of intoxi-
cating liquors should cease, except
for medicinary purposes and such
like uses. Compare with this
Hodge v. The Queen, and Grover-
nor-General Dominion v. The Four
Provinces [Liquor Acts, 1883—4].
See next section, p. 144.
A regulation of the provincial
parliament dealing with saloons,
if not inconsistent with Dominion
legislation, might be a matter pro-
perly conﬁded by the provincial
law to municipal authorities.
The validity of the Dominion
Acts, 1883-4, came before the J udi-
cial Committee in Nov. 1885, and
Sir Farrer Herschell, who appeared
for the Dominion, said: “The argu-
ment in the court below was that
you ﬁnd some of the municipal
bodies in some of the provinces, be-
fore the Dominion Act, have dealt
with this question of the liquor
traffic, and that, therefore, when
the provinces were given exclusive
powers to make laws in relation to
municipal institutions, they were
given the exclusive power to make
these liquor laws. But the very
object of the Dominion Act was to
take away from the provincial
legislatures some of the powers
they possessed, and confer those
powers on a central authority, and
therefore it could not be said they
had all the powers of legislation
which before they could exercise
through their municipal bodies.”
[See for full report sub-sec. 9, sec.
92, p. 144.]
In REG. '2). WAsoN, 4 March
1890, 17 O. A. R. 221 [see ante,
section 91, sub-section 27], Blake,
Q.C., for the Crown, argued: As
B.N.A. ACT, s. 92 (8).—LIQUOR REGULATIONS.
125
to offences, it is said that the
wilful violation of any legislative
Act is an offence. But very early
in the ﬁrst session after confedera-
tion, the Dominion Parliament
legislated on this head by what is
now R. S. C. 173, by the 25th
section of which it was provided
that every wilful violation of any
Act of the Parliament of Canada,
or of any legislature of any pro-
vince of Canada, which is not
made an offence of some other
kind, shall be a misdemeanour and
punishable accordingly. Parlia-
ment thus, so far as it could, re-
cognised the power of the provin-
cial legislatures to make laws, the
violation of which should be crim-
inal ; and without interfering with
cases in which a special sanction
had been applied, gave, as far as it
could, a criminal aspect to the
wilful breach of provincial Acts.
Probably the attention of the
Privy Council was not, in RUssELL
u. REG. [see next sub-sec], ade-
quately directed to important con-
siderations which would have affec-
ted possibly its decision, and al-
most certainly its reasoning. For
example, stress was not laid on the '
great division of provincial juris-
diction involved in “Municipal
Institutions,” or on the vital but
sometimes neglected principle that
neither the general nor the local
legislature can attract to itself a
jurisdiction, in matters assigned
exclusively to the other power, by
the device of, in the one case, en-
larging, or, in the other, restricting
the geographical area or conditions
in respect of which it proposes to
legislate; and that we must recog-
nise, as an inconvenience insepar-
able from the federal system, a lack
of power anywhere to make uni-
form regulations, co-extensive with
the whole Dominion, on certain
subjects relegated to provincial
authority. A fuller development
of these considerations in that case
would have prevented serious em-
barrassments in dealing satisfac-
torily with Hodge 11. Reg.
next sub-sec]
[See
POULIN u. CORPORATION or
QUEBEC, March 5, 1883, 9 S. C. R.
185, was a case in which under the
Quebec Act, 42 & 43 Vict. c. 4.
s. 1, a penal suit was instituted
against the defendant for not clos-
ing on Sunday his public house,
and it was there held by Ritchie,
C.J., Strong and Fournier, J J .,
that these were police regulations
within the power of the legislature
of the province. Henry, Taschereau
and Gwynne, J J ., were of opinion
that a prohibition to have the con-
viction revised was rightly granted,
being of opinion there must be
both the keeping open and selling
to constitute an offence, and the
penalty was for an infringement of
both, and that the writ against the
defendant charged no complete
offence but merely one of two ingre-
dients. The judges being equal,
the appeal from the quashing of the
prohibition failed. There Strong,
J ., said: “ In The Queen 1*.
Taylor, 36 U. C. B. 218, I
expressed my concurrence in the
decision of the Supreme Court
of New Brunswick in the case of
the justices of King’s County, in
which it was held that under ‘the
authority conferred by the B. N. A.
Act to legislate respecting muni-
cipal institutions, the provincial
legislature possessed that power
generally denominated the police
power, to regulate the sale of
spirituous and intoxicating liquors,
and I adhere to that opinion.
Then I think this appeal must be
disposed of without pronouncing
any opinion upon the question of
statutory interpretation which was
argued before us, for it is plain, as
I read the authorities, that this is
not a case in which the writ of
prohibition will lie.” See City
of Fredericton, 3 S. C. R. 505 [see
Note, sec. 91, p. 60] ; Jonas '0. Gil-
bert, Feb. 11, 1881, 5 S. C. R. 356.
The local legislature have the clear
right to make laws respecting tavern
POULIN 0. C01:-
PORATION or
QUEBEC.
RUSSELL r.
REG.
126
B.N.A. AcT, 92 (9).—MERGED RIGHTS.
REG. v.
FRAWLEY.
DOYLE v.
DUFFERIN.
In re N ovA
Sco'rIA LIQUou
Ac'r.
Dow 0. BLACK.
licenses, and to impose ﬁnes, penal-
ties, &c., for enforcing such laws:
Blouin '0. Corp. Quebec, 18 Dec.
1880, 7 Q. L. B. 18.
In REG. 2). FRAWLEY, 46 U. C.
Q. B. 153, it was held the Ontario
Legislature could not add hard
labour to the imprisonment in-
ﬁicted for selling liquor without
a license. [But this was reversed ;
see Hodge v. The Queen, next sub-
sec.] See as to validity of appoint-
ment by municipalities of inspectors
to carry out Canada Temperance
Act, ex parte Whelan, May 9,
1891, 30 S. C. N. B. 586.
TAxEs.-—Municipalities can in-
(9.) Shop, saloon, tavern,
crease the tax payable for delay in
paying the original demand, and
the additional tax will not be held
as interest, but as an extra burden
imposed for delay. Lynch '0.
Canadian N. W. Land Co., 19
S. C. R. 204 [see Note, sec. 91,
sub-sec. 19].
Where a municipality possesses
a local {option bye-law, and is it-
self afterwards joined to another
municipality, the new municipality,
under the Municipal Act, 1890,
s. 396, B. S. M. c. 1000. s. 330,
may repeal this bye-law. Doyle
v. Dufferin, 1892, 8 Man. B. Q.
B. 286.
auctioneer, and other
licenses, in order to the ‘ raising of a revenue
for provincial, l‘ocal, or municipal purposes.1
1 In re THE NOVA SCOTIA
LIQUOR ACT, 1886, c. 3., Att.-
Gen. Longley reported: “The
interpretation of this clause has
elicited endless controversy by the
best legal minds of the king-
dom, and the best that can be
said in regard to its determina-
tion is that the Privy Council
have decided at last that Acts
regulating the sale of intoxicating
liquors by license come within the
exclusive jurisdiction of the pro-
vincial legislatures. If the pro-
vincial legislatures have the right
to ﬁx the conditions under which
licenses can be issued or granted,
it is by no means unreasonable to
assume that they may within the
scope of their jurisdiction impose
such conditions as would make
the obtaining of licenses practically
impossible. The imposition of
punishment by ﬁne, penalty, or
imprisonment for enforcing any
law of the province made in rela-
tion to any matter coming within
any of the classes of subjects
enumerated in section 92 is dis-
tinctly given by the B. N. A. Act.
There seems to be no limit to this
authority, and the same objections
which are open to the severity of
the conditions upon which licenses
are granted might be urged against
the severity of the penalties im-
posed.” But in both cases he was
not aware of any limit. Prov.
Leg, p. 129.
In Dow v. BLACK, March 5, 1875,
L. R. 6 P. C. 272, a case of an
assessment on the parish of St.
Stephen’s by an Act of the pro-
vince of New Brunswick, to raise
a subsidy for promoting a railway
already authorized before the Do-
minion Act came into operation.
The Judicial Committee, in rever-
sing the decision of the Supreme
Court of New Brunswick and up-
holding the validity of the provin-
cial Act as a local matter, decided
also that the Act in question, even
if it did not fall within sub-sec. 2,
sec. 92 (and therefore argued to
clash with sub-sec. 3 of sec. 91),
would clearly be a law relating to
a matter of a merely local or pri-
vate nature within the meaning of
this sub-section, and therefore one
B.N.A. ACT, s. 92 (9).—L1CENSE ON INSURANCES.
127
which the provincial legislature
was competent to pass unless its
subject-matter could be distinctly
shown to fall within one or other
of the classes of subjects specially
enumerated in the 91st section.
See L’Union St. Jacques de
Montreal'v. Belisle, 8 July 1874,
L. R. 6 P. C. 31 [see ante, p. 84].
In Severn’s case, Jan. 28,
1877, 2 S. C. R. 70 [see sec. 91,
sub-sec. 2], the tax in question
was one for licenses which by the
law of the Legislature of Ontario
were required to be taken for
dealing in liquors. In the case of
a brewer the Supreme Court held
the law ultra tires, mainly on the
grounds that such licenses did not
fall within the sub-section, and that
the institution of the tax was in
conﬂict with powers of the Domi-
nion Parliament under sub-sec. 2
of sec. 91 [see ante, p. 52]. _
In Arr-GEN. FOR QUEBEC 2*.
QUEEN INsURANcE Co. (Torrance,
J.], 21 L. C. J. 77; affirmed by
Q. B. Quebec, 14 Dec. 1877, 22
L. C. J. 307 [Taschereaiu Monk,
Tessier, J J ., Ramsay, J ., dissent-
ing]; in P. C. July 5, 1878, 3
App. Cas. 1090; 38 L. T. 897,
the question was whether clauses
of the Quebec Act, 187 5, 39 Vict.
c. 7 ., which compelled assurers to
take out a license, were ultra rvires
of the Quebec Legislature. Held
they were.
Jessel, M.R., delivering judg-
ment [at which were also present
Sir James Colvile, Sir B. Peacock,
Sir M. E. Smith, and Sir R.
Collier], said [3 App. Cas. p. 1097],
after reading sub-sec. 9, sec. 92 of
the N. B. Act: “The statute in
question [Quebec, 39 Vict. c. 7
purports to be, on the face of it, in
exercise of that power. It enacts
that every assurer, except people
carrying on marine assurance, shall
be bound to take out a license
before the 1st May in each year,
from the revenue oﬁicer of the dis-
trict, and to Icmain continually
under license. It then, by the 2nd
section, enacts what the price of
the license is to be. And reading
it shortly, it amounts to this, that
the price of the license shall consist
of an adhesive stamp afﬁxed to the
policy, or receipt, or renewal, as
the case may be. The amount of
the adhesive stamp is to be, in case
of ﬁre, 3 per cent., and 1 per cent.
for other assurances on the pre-
miums paid. Then the 4th section
enacts that anybody who, on behalf
of an assurer, shall deliver any
policy, or renewal, or receipt with-
out the stamp shall be liable for
such contravention to a penalty of
850. The 5th section says that
every assurer bound to take out a
license shall be liable in such a
case to a penalty not exceeding
850 if it has been delivered with-
out an adhesive stamp. The 6th
section says that every person who
aﬁixes the stamp shall be bound to
cancel it, so as to obliterate it and
prevent its being used again. And
the 7th section makes all policies,
premiums, receipts, or renewals
not stamped as required by the Act
invalid. It says they ‘ shall not be
invoked, and shall have no eﬁect in
law or in equity before the courts
of this province.’ Then there are
certain sections of the Quebec
License Act which are incorporated,
and the Act is not to apply to assur-
ances not within the province.
The only provision of the Quebec
License Act which it is necessary
to refer to is the 124th section-—
‘ For every license issued by a
revenue ofﬁcer there shall be paid
to such revenue ofﬁcer, over and
above the duty payable therefor, a
fee of 351 by the person to whom it
is issued.’ Now the ﬁrst point
which struck their Lordships, and
will strike everyone, as regards
this licensing Act, is that it is a
complete novelty. N 0 such licens-
ing Act has ever been seen before.
It purports to be a licensing Act,
but the licensee is not compelled to
pay anything for the license, and,
what is more singular, is not com-
A'r'r.-GEN. FOR
QUEBEC v.
QUEEN INSUR-
ANcE Co.
128 B.N.A. AM, SO. 92 (9).-NovELTY 1N LICENSING.
AT'I‘.-GEN. FOR
QUEBEC v.
QUEEN INSUR-
ANcE Co.
pelled to take out the license, because
there is no penalty at all upon the
licensee for not taking it up ; and,
further than that, if the policies are
issued with the stamp they appear
to be valid, although no license has
been taken out at all. The result,
therefore, is, that a license is
granted which there are no means
of compelling the licensee to take,
and which he pays nothing for if
he does take; which is certainly a
singular thing to be stated of a
license. They say, on the face of
that statute, ‘ The price of each
license shall consist,’ and so on.
But it is not a price to be paid by
the licensee. It is a price to be
paid by anybody who wants a
policy, because without that no
policy can be obtained. It may be
that the company buys the adhesive
stamps and aﬁ‘ixes them, or it may
be that the assured buys the adhesive
stamps and aﬁixes them, or pays
an oﬂicer of the company the
money necessary to purchase them
and aﬁ‘ix them; but whoever does
it complies with the Act.
“ Another observation which
may be made 011 the Act is this,
that if you leave out the clauses
about the license the effect of the
Act remains the same. It is really
nothing more nor less than a Stamp
Act if you leave out those clauses.
If you leave out every direction for
taking out a license, and everything
said about the price of a license,
and merely leave the rest of the
Act in, the Government of the pro-
vince of Quebec obtains exactly the
same amount, by virtue of the
statute, as it does with the license
clauses remaining in the statute.
The penalty is on the issuing of
the policy, receipt, or renewal; it
is not a penalty for not taking out
the license. The result, therefore,
is this, that it is not in substance a
license Act at all. It is nothing
more or less than a simple Stamp
Act on policies, with provisions re-
ferring to a license, because it must
be presumed the framers of the
statute thought it was necessary, in
order to cover the kind of tax in
question with legal sanction, that
it should be made in the shape of
the price paid for a license. If
that is so, it is no use considering
how far, independently of these
considerations, the 9th sub-section,
section 92, would authorize a sum
of money from an insurance com-
pany in respect of a license. With
regard to the precedents cited, it
was alleged on behalf of the ap-
pellants that though at ﬁrst sight
it might appear that this was not
a license, and that this was not the
price paid for a license, yet it could
be shewn by the existing legislation
in England and America that
licenses were constantly granted on
similar terms; and that, therefore,
in construing the Dominion Act, we
ought to construe it with reference
to the other subsisting legislation.
Their Lordships think that a very
fair argument. But the question
is, is it true in fact? “Then the
instances which were produced
were examined, it was found they
were of a totally different character.
They might be described as licenses
granted to traders on payment of a
sum of money; but the price to be
paid by the trader was estimated
either according to the amount of
business done by the trader in the
year previous to the granting of
the license, or with reference to
the value of the house in which
the trader carried on business, or
with reference to the nature of the
goods, as regards quantity es-
pecially, sold by the trader in
the previous year. They were all
cases in which the price actually
paid by the trader for the license
at the time of granting it was ascer-
tained by these considerations. It
was a license paid for by the trader,
and the actual price of the license
was ascertained by the amount of
the trade he did. This is not apay-
ment depending, in that sense, on
the amount of the trade previously
done by the trader. It is a‘ pay-
ment on the very transaction
occurring in the year for which the
B.N.A. ACT, s. 92 (9).——TEMPERANCE DESIRABLE.
129
license is taken out, and is not really
a price paid for a license, but, as
has been said before, a mere stamp
on the policy, renewal, or receipt.”
His Lordship then considered
whether it came under sub-sec. 2
[see that section for the comple-
tion of his judgment, p. 120], and
afﬁrmed the decision of the Ct. Q.
B. for Quebec, and dismissed the
appeal.
That case was examined in
Bank of Toronto 1). Lambe, in
. B., Quebec, Jan. 23, 1885,
29 L. C. J. 78; in P. C. July 9,
1887, 12 App. Cas. at p. 584; 56
L. J. P. C. 87; 57 L. T. 377 [see
ante, p. 113]. Att.-Gen. of Quebec
1*. Reed, in court below 8 S. C. R.-
408; in P. C. Nov. 26, 1884, 10
App. Cas. 141; 54 L. J. P. C. 12;
52 L. T. 393; 33 WV. R. 618 [see
sub-sec. 2, ante, p. 119]. The
question in the latter case was as
to the validity of a stamp duty on
exhibits produced in courts of law,
which in a great many instances
would not be paid by the person
ﬁrst charged with it.
In 1878 the Dominion passed
the Temperance Act. This Act
was held to be valid in 1882 by
the Privy Council in England.
RUssELL r. THE QUEEN, in S. C.
N. B. March 1881, 20 S. C. N.
B. (4 Pugs. and B.) 536 [Allen,
C.J., \Veldon, Wctmore, and D116’,
JJ]; in P. C. June 23, 1882,
7 App. Cas. 829; 51 L. J.
P. C. 77; 46 L. T. 889. Sir
Montague E. Smith delivered
judgment, there being also present
Sir Barnes Peacock, Sir Robert
Collier, Sir James Hannen, and
Sir Richard Couch.
Sir M. E. Smith said : “ This is
an appeal from an order of the Su-
preme Court of the province of New
Brunswick, discharging a rule uisi
which had been granted on the
application of the appellant for a
certzorari to remove a conviction
made by the police magistrate of
the city of Fredericton against
him for unlawfully selling intoxi-
S 2340.
Gating liquors, contrary to the pro- RUSSELL v- TIN-1
QUEEN.
visions of the Canada Temperance
Act, 1878. No question has been
raised as to the sufﬁciency of the
conviction, supposing the above-
mentioned statute is a valid legisla~
tive Act of the Parliament of
Canada. The only objection made
to the conviction in the Supreme
Court of New Brunswick, and in
the appeal to Her Majesty in
Council, is that, having regard to
the provisions of the B. N. A. Act,
1867, relating to the distribution
of legislative powers, it was not.
competent for the Parliament of
Canada to pass the Act in question.
The Supreme Court of New Bruns-
wick made the order now appealed
from in deference to a judgment of
the Supreme Court of Canada in
the case of The City of Fredericton
r. The Queen [see ante, p. 60]. In
that case the question of the validity
of the Canada Temperance Act,
1878, though in another shape,
directly arose, and the Supreme
Court of New Brunswick, con-
sisting of judges, then decided,
Mr. Justice Palmer dissenting [19
S. C. N. B. (3 Pugs. and B.) 139,
Ritchie, C.J., Fournier, Tasch-
ereau, and Gwynne, JJ, that the
Act was beyond the competency
of the Dominion Parliament. On
the appeal of the city of Frederic-
ton, this judgment was reversed by
the Supreme Court of Canada,
which held, Mr. Justice Henry
dissenting, that the Act was valid.
(The case is reported in 3 S. C.
R. 505.) The present appeal to Her
Majesty is brought, in effect, to re-
view the last-mentioned decision.
“ The preamble of the Act in
question states that ‘it is very de-
sirable to promote temperance in
the Dominion, and that there should
be uniform legislation in all the
provinces respecting the trafﬁc in
intoxicating liquors.’ The Act is
divided into three parts. The ﬁrst.
relates to ‘ proceedings for bringing
the second part of this Act into
force ’ ; the second to ‘ prohibition
of traﬁic in intoxicating liquors ’;
I
130 B.N.A. Ac'r, S. 92 (9).—QUASI OPTION.
RUSSELL 71- THE and the third to ‘penalties and
QUEEN.
prosecutions for offences against
the second part.’
“ The mode of bringing the
second part of the Act into force,
stating it succinctly, is as follows :
On a petition to the Governor in
Council, signed by not less than
one-fourth in number of the electors
of any county or city in the Domi-
nion qualiﬁed to vote at the election
of a member of the House of Com-
mons, praying that the second part
of the Act should be in force and
take effect in such county or city,
and that the votes of all the electors
be taken for or against the adoption
of the petition, the Governor-
General, after certain prescibed
notices and evidence, may issue a
proclamation, embodying such pe-
tition, with a view to a poll of the
electors being taken for or against
its adoption. When any petition
has been adopted by the electors of
the county or city named in it, the
Governor-General in Council may,
after the expiration of 60 days from
the day on which the petition was
adopted, by Order in Council pub_
lished in the Gazette, declare that
the second part of the Act shall be
in force and take effect in such
county or city, and the same is then
to become of force and take eﬁect
accordingly. Such Order in Coun-
cil is not to be revoked for three
years, and only on like petition and
procedure.
“The most important of the
prohibitory enactments contained
in the second part of the Act is
sec. 99, which enacts that, ‘from
the day on which this part of this
Act comes into force and takes
effect in any county or city, and
for so long thereafter as the same
continues in force therein, no per-
son, unless it be for exclusively
sacramental or medicinal purposes,
or for bond ﬁde use in some art,
trade, or manufacture, under the
regulation contained in the fourth
sub—section of this section, or as
hereinafter authorized by one of
the four next sub-sections of this
section, shall, within such county
or city, by himself, his clerk,
servant, or agent, expose or keep
for sale, or directly or indirectly,
on any pretence or upon any de-
vice, sell or barter, or in consider-
ation of the purchase of any other
property give, to any other person,
any spirituous or other intoxicating
liquor, or any mixed liquor, capable
of being used as a beverage, and
part of which is spirituous or other_
wise intoxicating.’
“ Sub-sec. 2 provides that ‘ neither
any license issued to any distiller
or brewer’ (and after enumerating
other licenses), ‘ nor yet any other
description of license whatever,
shall in anywise avail to render
legal any act done in violation of
this section.’
“ Sub~sec. 3 provides for the sale
of wine for sacramental purposes,
and sub-sec. 4 for the sale of
intoxicating liquors for medicinal
and manufacturing purposes, these
sales being made subject to pre-
scribed conditions.
“ Other sub-sections provide that
producers of cider, and distillers
and brewers, may sell liquors of
their own manufacture in certain
quantities, which may be termed
wholesale quantities, or for export,
subject to prescribed conditions,
andithere are provisions of a like
nature with respect to vine-growing
companies and manufacturers of
native wines.
“ The third part of the Act enacts
(sec. 100) that whoever exposes
for sale or sells intoxicating liquors
in violation of the second part of
the Act, should be liable. on
summary conviction, to a penalty
of not less than 50 dollars for the
ﬁrst offence, and not less than
100 dollars for the second oifence,
and to be imprisoned for a term
not exceeding two months for the
third and every subsequent oﬂ'ence ;
all intoxicating liquors in respect
to which any such offence has been
committed to be forfeited.
“The effect of the Act when
brought into force in any county
B.N.A. ACT, s. 92 (9).—DELEGATION OF POWERS. 131
or town within the Dominion is,
describing it generally, to prohibit
the construction of the 91st and RUSSELL v. THE
92nd sections of the British North QUEEN-
the sale of intoxicating liquors,
except in wholesale quantities, or
for certain speciﬁed purposes to
regulate the tratﬁc in the excepted
cases, and to make sales of liquors
in violation of the prohibition and
regulations contained in the Act
criminal offences, punishable by
ﬁne, and for the third or subse-
quent offence by imprisonment.
“It was in the ﬁrst place con-
tended, though not very strongly
relied on, by the appellant’s counsel,
that assuming the Parliament of
Canada had authority to pass a
law for prohibiting and regulating
the sale of intoxicating liquors, it
could not delegate its powers, and
that it had done so by delegating
the power to bring into force the
prohibitory and penal provisions
of the Act to a majority of the
electors of counties and cities.
The short answer to this objection
is that the Act does not delegate
any legislative powers whatever.
It contains within itself the whole
legislation on the matters with
which it deals. The provision
that certain parts of the Act shall
come into operation only on the
petition of a majority of electors
does not confer on these persons
power to legislate. Parliament it-
self enacts the condition and every-
thing which is to follow upon the
condition being fulﬁlled. Condi-
tional legislation of this kind is in
many cases convenient, and is
certainly not unusual, and the
power so to legislate cannot be
denied to the Ptl-l‘llftlnﬁllll of Canada,
when the subject of legislation is
within its competency. Their
Lordships entirely agree with the
opinion of Chief Justice Ritchie
on this objection. If authority
on the point were necessary, it will
be found in the case of The Queen
1*. Burah, lately before this Board
[3 App. Cas. 889; see ante, p.49].
“ The general question of the
competency of the Dominion Par-
liament to pass the Act depends on
America Act, 1867, which are
found in Part VI. of the statute
under the heading, ‘ Distribution
of Legislative Powers.’
“The 91st section enacts, ‘It
shall be lawful for the Queen by
and with the advice and consent of
the Senate and House of Commons,
to make laws for the peace, order,
and good government of Canada,
in relation to all matters not
coming within the classes of sub-
jects by this Act assigned exclu-
sively to the legislatures of the
provinces; and for greater cer-
tainty, but not so as to restrict
the generality of the foregoing
terms of this section, it is hereby
declared that (notwith standing any-
thing in this Act) the exclusive
legislative authority of the Parlia-
ment of Canada extends to all
matters coming within the classes
of subjects next hereinafter enu-
merated ’; then after the enumer-
ation of 29 classes of subjects, the
section contains the following
words :—‘ And any matter coming
within any of the classes of sub_
jects enumerated in this section
shall not be deemed to come
within the class of matters of a.
local or 11>rivate nature comprised
in the enumeration of the classes
of subjects by this Act assigned
exclusively to the legislature of
the province.’
“ The general scheme of the
British North America Act with
regard to the distribution of legis-
lative powers, and the general
scope and effect of sees. 91 and 92,
and their relation to each other,
were fully considered and com-
mented on by this Board in the
case of the Citizens’ Insurance Co.
2:. Parsons, Nov. 26, 1881, 7 App.
Cas. 96; 51 L. J. P. C. 11; 45
L. T. 721. [See sub-see. 13, sec.
92.] According to the principle
of construction there pointed out,
the ﬁrst question to be determined
is, whether the Act now in ques-
tion falls within any of the classes
12
132 B.N.A. ACT, s. 92 (say—Loom. INVASION.
RUSSELLv- THE of subjects enumerated in sec. 92,
QUEEN.
and assigned exclusively to the
legislatures of the provinces. If
it does, then the further question
would arise, namely, whether the
subject of the Act does not also
fall within one of the enumerated
classes of subjects in sec. 91, and
so does not still belong to the
Dominion Parliament. But if the
Act does not fall within any of
the classes of subjects in sec. 92,
no further question will remain,
for it cannot be contended, and
indeed was not contended at their
Lordships’ bar, that, if the Act
does not come within one of the
classes of subjects assigned to the
provincial legislatures, the Parlia-
of Canada had not, by its general
power ‘to make laws for the peace,
order, and good government of
Canada,’ full legislative authority
to pass it.
“Three classes of subjects enu-
merated in sec. 92 were referred
to, under each of which, it was
contended by the appellant’s coun-
sel, the present legislation fell.
These were :—
“9. Shop, saloon, tavern, auc-
tioneer, and other licenses in order to
the raising of a revenue for provin-
cial, local, or municipal purposes.
“13. Property and civil, rights
in the province.
“ 16. Generally all matters of a
merely local or private nature in
the province.
“With regard to the ﬁrst of
these classes, No. 9, it is to be
observed that the power of grant-
ing licenses is not assigned to the
provincial legislatures for the
purpose of regulating trade, but
‘in order to the raising of a
revenue for provincial, local, or
municipal purposes.’
“The Act in question is not a
ﬁscal law; it is not a law for
raising revenue; on the contrary,
the effect of it may be to destroy or
diminish revenue; indeed it was a
main objection to the Act that in
the city of Fredericton it did in
point of fast diminish the sources
of municipal revenue. It is evi-
dent, therefore, that the matter of
the Act is not within the class of
subject No. 9, and consequently
that it could not have been passed
by the provincial legislature by
virtue of any authority conferred
upon it by that sub-section.
“ It appears that by statutes of
the province of New Brunswick
authority has been conferred upon
the municipality of Fredericton to
raise money for municipal purposes
by granting licenses of the nature
of those described in No. 9 of sec.
92, and that licenses granted to
taverns for the sale of intoxicating
liquors were a proﬁtable source of
revenue to the municipality. It
was contended by the appellant’s
counsel, and it was their main
argument on this part of the case,
that the Temperance Act inter-
fered prejudicially with the traffic
from which this revenue was de-
rived, and thus invaded a. subject
assigned exclusively to the pro-
vincial legislature. But, sup-
posing the eﬁect of the Act to be
prejudicial to the revenue derived
by the municipality from licenses,
it does not follow that the Do-
minion Parliament might not pass
it by virtue of its general authority
to make laws for the peace, order,
and good government of Canada.
Assuming that the matter of the
Act does not fall within the class
of subject described in No. 9, that
sub—section can in no way inter-
fere with the general authority of
the Parliament to deal with that
matter. If the argument of the
appellant that the power given to
the provincial legislatures to raise
a revenue by licenses prevents the
Dominion Parliament from legis-
lating with regard to any article
or commodity which was or might
be covered by such licenses were
to prevail, the consequence would
be that laws which might be neces-
sary for the public good or the
public safety could not be enacted
at all. Suppose it were deemed to
be nectssary or expedient for the
B.N.A. ACT, s. 92 (9).—ABUNDANT CAUTION.
133
national safety, or for political
reasons, to prohibit the sale of
arms, or the carrying of arms, it
could not be contended that a pro-
vincial legislature would have
authority, by virtue of sub-sec. 9
(which alone is now under dis-
cussion), to pass any such law,
nor, if the appellant’s argument
were to prevail, would the Do-
minion Parliament be competent
to pass it, since such a law would
interfere prejudicially with the
revenue derived from licenses
granted under the authority of the
provincial legislature for the sale
or the carrying of arms. Their
Lordships think that the right
construction of the enactments
does not lead to any such incon-
venient consequence. It appears
to them that legislation of the
kind referred to, though it might
interfere with the sale or use of an
article included in a license granted
under sub-sec. 9, is not in itself
legislation upon or within the sub-
ject of that sub-section, and conse-
quently is not by reason of it taken
out of the general power of the
Parliament of the Dominion. It
is to be observed that the express
provision of the Act in question
that no licenses shall avail to
render legal any act done in viola-
tion of it, is only the expression,
inserted probably from abundant
caution, of what would be neces-
sarily implied from the legislation
itself, assuming it to be valid.
“Next, their Lordships cannot
think that the Temperance Act in
question properly belongs to the
class of subjects ‘ Property and
Civil Rights.’ It has in its legal
aspect an obvious and close simi-
larity to laws which place restric-
tions on the sale or custody of
poisonous drugs, or of dangerously
explosive substances. These things,
as well as intoxicating liquors, can,
of course, be held as property, but
a law placing restrictions on their
sale, custody, or removal, on the
ground that the free sale or use of
them is dangerous to public safety,
and making it a criminal oﬂence 3175M?“ v- FHE
UEEN.
punishable by ﬁne or imprisonment
to violate these restrictions, cannot
properly be deemed a law in rela-
tion to property in the sense in
which those words are used in
the 92nd section. \Vhat Parlia-
ment is dealing with in legislation
of this kind is not a matter in
relation to property and its rights,
but one relating to public order
and safety. That is the primary
matter dealt with, and though in-
cidentally the free use of things in
which men may have property is
interfered with, that incidental
interference does not alter the
character of the law. Upon the
same considerations, the Act in
question cannot be regarded as
legislation in relation to civil rights.
In however large a sense these
words are used, it could not have
been intended to prevent the
Parliament of Canada from de-
claring and enacting certain uses
of property, and certain acts in
relation to property, to be criminal
and wrongful. Laws which make
it a criminal offence for a man
wilfully to set ﬁre to his own house
on the ground that such an act
endangers the public safety, or to
overwork his horse on the ground
of cruelty to the animal, though
affecting in some sense property
and the right of a man to do as he
pleases with his own, cannot pro-
perly be regarded as legislation in
relation to property or to civil
rights. Nor could a law which
prohibited or restricted the sale or
exposure of cattle having a conta-
gious disease be so regarded.
Laws of this nature, designed for
the promotion of public order,
safety, or morals, and which sub-
j ect those who contravene them to
criminal procedure and punishment,
belong to the subject of public
wrongs rather than to that of civil
rights. They are of a nature
which fall within the general
authority of Parliament to make
laws for the order and good govern-
ment of Canada, and have direct
134 B.N.A. Ac' ‘, 92 (say-cane. LIQUOR LAWs.
QUEEN.
RUSSELL ”- THE relation to criminal law, which is
one of the enumerated classes of
subjects assigned exclusively to
the Parliament of Canada. It was
said in the course of the judgment
of this Board in the case of the
Citizens’ Insurance Company of
Canada '0. Parsons, that the two
sections (91 and 92) must be read
together, and the language of one
interpreted, and, where necessary,
modiﬁed by that of the other.
Few, if any, laws could be made
by Parliament for the peace, order,
and good government of Canada
which did not in some incidental
way affect property and civil rights ;
and it could not have been intended,
when assuring to the provinces
exclusive legislative authority on
the subjects of property and civil
rights, to exclude the Parliament
from the exercise of this general
power whenever any such inci-
dental interference would result
from it. The true nature and
character of the legislation in the
particular instance under discussion
must always be determined, in order
to ascertain the class of subject to
which it really belongs. In the
present case it appears to their
Lordships, for the reasons already
given, that the matter of the Act
in question does not properly be-
long to the class of subjects ‘ Pro-
perty and Civil Rights ’ within the
meaning of sub-sec. 13.
“ It was argued by Mr. Benjamin
that if the Act related to criminal
law, it was provincial criminal law,
and he referred to sub-sec. 15 of
sec. 92, namely, ‘The imposition of
any punishment by ﬁne, penalty, or
imprisonment for enforcing any law
of the province made in relation to
any matter coming within any of
the classes of subjects enumerated
in this section.’ N o doubt this
argument would be well founded if
the principal matter of the Act
could be brought within any of
these classes of subjects; but as far
as they have yet gone, their Lord-
ships fail to see that this has been
done.
“It was lastly contend<~~d that
this Act fell within sub-sec. 16 of
' sec. 92,—‘ Generally all matters of
a merely local or personal nature
in the province.’
“ It was not, of course, contended
for the appellant that the Legisla-
ture of New Brunswick could have
passed the Act in question, which
embraces in its enactments all the
provinces : nor was it denied, with
respect to this last contention, that
the Parliament of Canada might
have passed an Act of the nature of
that under discussion, to take effect
at the same time throughout the
whole Dominion. Their Lordships
understand the contention to be
that, at least in the absence of a
general law of the Parliament of
Canada, the provinces might have
passed a local law of a like kind,
each for its own province, and that,
as the prohibitory and penal parts
of the Act in question were to come
into force in those counties and
cities only in Which it was adopted
in the manner prescribed, or, as it
was said, ‘by local option,’ the
legislation was in effect, and on its
face, upon a matter of a merely
local nature. The judgment of
Allen, C.J., delivered in the Su-
preme Court of the province of
New Brunswick in the case of
Barker 12. The City of Fredericton,
19 S. C. N. B. (3 Pugs. & B.),
139, which was adverse to the
validity of the Act in question,
appears to have been founded upon
this view of its enactments. The
learned Chief Justice says :——‘ Had
this Act prohibited the sale of
liquor, instead of merely restricting
and regulating it, I should have had
no doubt about the power of the
Parliament to pass such an Act;
but I think an Act, which in eifect
authorizes the inhabitants of each
town or parish to regulate the sale
of liquor, and to direct for whom,
for what purposes, and under what
conditions spirituous liquors may
be sold therein, deals with matters
of a merely local nature, which, by
the terms of the 16th sub-section
B.N.A. ACT, 92 (9).——UNIFORl\IITY OF LAWS.
135
of sec. 92 of the British North
America Act, are within the exclu-
sive control of the local legislature.’
“ Their Lordships cannot concur
in this view. The declared object
of Parliament in passing the Act
is that there should be uniform
legislation in all the provinces
respecting the traflic in intoxicating
liquors, with a view to promote
temperance in the Dominion. Par--
liament does not treat the promotion
of temperance as desirable in one
province more than in another, but
as desirable everywhere throughout
the Dominion. The Act as soon
as it was passed became a law for
the whole Dominion, and the
enactments of the ﬁrst part, relating
to the machinery for bringing the
second part into force, took effect
and might be put in motion at once
and everywhere within it. It is
true that the prohibitory and penal
parts of the Acts are only to come
into force in any county or city
upon the adoption of a petition to
that effect by a majority of electors,
but this conditional application of
these parts of the Act does not con-
vert the Act itself into legislation
in relation to a merely local matter.
The objects and scope of the legis-
lation are still general, viz., to
promote temperance by means of a
uniform law throughout the Do-
nnmon.
“The manner of bringing the
prohibitions and penalties of the
Act into force, which Parliament
has thought ﬁt to adopt, does not
alter its general and uniform
character. Parliament deals with
the subject as one of general con-
cern to the Dominion, upon which
uniformity of legislation is desirable,
and the Parliament alone can so
deal with it. There is no ground
or pretence for saying that the evil
or vice struck at by the Act in
question is local or exists only in
one province, and that Parliament,
under colour of general legislation,
is dealing with a provincial matter
only. It is therefore unnecessary
to discuss the COllSldGI'tttiODS which
a state of circumstances of this
kind might present. The present
legislation is clearly meant to apply
a remedy to an evil which is as-
sumed to exist throughout the
Dominion, and the local option, as
it is called, no more localises the
subject and scope of the Act than
a provision in an Act for the pre-
vention of contagious diseases in
cattle that a public officer should
proclaim in what districts it should
come into eifect, would make the
statute itself a mere local law
for each of these districts. In
statutes of this kind the legislation
is general, and the provision for
the special application of it to par-
ticular places does not alter its
character.
“Their Lordships having come
to the conclusion that the Act in
question does not fall within any
of the classes of subjects assigned
exclusively to the provincial legis-
latures, it becomes unnecessary to
discuss the further question whether
its provisions also fall within any of
the classes of subjects enumerated
in sec. 91. In abstaining from
this discussion, they must not be
understood as intimating any dis-
sent from the opinion of the Chief
Justice of the Supreme Court of
Canada and the other judges, who
held that the Act, as a general
regulation of the traffic in intoxi-
cating liquors throughout the
Dominion, fell within the class of
subject, ‘ the regulation of trade
and commerce,’ enumerated in that
section, and was, on that ground,
a valid exercise of the legislative
power of the Parliament of
Canada.”
Judgment of the Supreme Court
of Canada affirmed with costs.
In Honcn v. THE QUEEN, in
the court below June 30, 1882,
'7 O. A. R. 246, Spragge, C.J.,
Burton, Patterson, and Morrison,
J J .A., reversing Hagarty, C.J.,
Armour, and Cameron, JJ., 46
U. C. Q. B. 141, 153, who had
held the Act ultra tires; in P. C.
RUSSELL v. Tun
QUEEN.
Honcr. 2;. Tue
QUEEN.
136
B.N.A. ACT, 92 (9).——PROVINCIAL PENALTIES.
HODGE v. THE
QUEEN.
Dec. 15, 1883, 9 App. Cas. 117;
53 L. J. P. C. 1; 50 L. T. 301,
the question was, had the Legisla-
ture of Ontario any authority to
enact such regulations as were
enacted by the Board of Commis-
sioners, and to create offences and
annex penalties for their infraction ;
and, secondly, that if the legislature
had such authority, could it dele-
gate it to the Board of Commission-
ers or any other authority outside
their own legislative body P As in
Russell The Queen, so in this
case the judgment is given fully
and contains all the facts.
The judgment was delivered by
Lord Fitzgerald, there being also
present Sir Barnes Peacock, Sir
R. Collier, Sir R. Couch, and Sir
A. Hobhouse.
“ The Appellant, Archibald G.
Hodge, the proprietor of a tavern
known as the St. James’ Hotel, in
the city of Toronto, and who, on
the 7th May 1881, was the holder
of a license for the retail of spiri-
tuous liquors in his tavern, and
also licensed to keep a billiard
saloon, was summoned before the
police magistrate of Toronto for a
breach of the resolutions of the
License Commissioners of Toronto,
and was convicted on evidence
sutlicient to sustain the conviction
if the magistrate had authority in
law to make it.
“The conviction is as follows,
namely :~—‘ CONVICIION. —— Can-
ada: Province of Ontario, County
of York, City of Toronto, to wit :—
Be it remembered, that on the 19th
May 1881, at the city of Toronto,
in the county of York, Archibald
G. Hodge, of the said city, is con-
victed before me, George Taylor
Denison, Esquire, police magistrate
in and for the said city of Toronto,
for that he, the said Archibald G.
Hodge, being a person who, after
the passing of the resolution here-
inafter mentioned, received, and
who, at the time of the committing
of the offence hereinafter men-
tioned, held a license under the
Liquor License Act, for and in
respect of the tavern known as the
St. James’ Hotel, situate on York
Street, within the city of Toronto,
on the 7th May in the year afore-
said, at the said city of Toronto,
did unlawfully permit, allow, and
suffer a billiard table to be used,
and a game of billiards to be played
thereon in the said tavern, during
the time prohibited by the Liquor
License Act for the sale of liquor
therein, to wit, after the hour of
seven o’clock at night on the said
7th May, being Saturday, against
the form of the resolution of the
License Commissioners for the city
of Toronto for regulating taverns
and shops, passed on the 25th
April, in the year aforesaid, in such
case made and provided.
‘ Thomas Dexter, of said city,
License Inspector of the city of
Toronto, being the complainant.
‘ And I adjudge the said Archi-
bald G. Hodge, for his said offence,
to forfeit and pay the sum of twenty
dollars, to be paid and applied
according to law; and also to pay
to the said Thomas Dexter the sum
of two dollars and eighty-ﬁve cents
for his costs in this behalf; and if
the said several sums be not paid
forthwith, then I order that the
same be levied by distress and sale
of goods and chattels of the said
Archibald G. Hodge ; and in default
of sufficient distress, I adjudge the
said Archibald G. Hodge to be im-
prisoned in the common gaol of the
said city of Toronto and county of
York, at Toronto, in the county of
York, and there be kept at hard
labour for the space of ﬁfteen days,
unless the said sums, and the costs
and charges of conveying of the
said Archibald G. Hodge to the said
gaol, shall be sooner paid.’
“ On the 27th May 1881, a rule
nisi was obtained to remove that con-
viction into the Court of Queen’s
Bench for Ontario, in order that it.
should be quashed as illegal, on the
grounds, 1st, that the said resolu-
tion of the said License Commision-
ers is illegal and unauthorized ;
2nd, that the said License Com-
B.N.A. ACT, s. 92 (9).-—NEW orrEivcEs, 137
missioners had no authority to pass
the resolution prohibiting the game these, but has merely authorized QUEEN-
legislature has not enacted any of HODGRv- THE
of billiards as in the said resolution,
nor had they power to authorize the
imposition of a ﬁne, or, in default
of payment thereof, imprisonment
for a violation of the said resolu-
tion; 3rd, the Liquor License Act,
under which the said Commission-
ers have assumed to pass the said
resolution, is beyond the authority of
the Legislature of Ontario, and does
not authorize the said resolution.
“It will be observed that the
question whether the local legisla-
ture could confer authority on the
License Commissioners to make the
resolution in question is not di-
rectly raised by the rule uisi. On
the 27th June 1881, that rule was
made absolute, and an order pro-
nounced by the Court of Queen’s
Bench to quash the conviction.
The judgment of the Court, which
seems to have been unanimous,
was delivered by Hagarty, C.J.,
with elaborate reasons [46 U. C.
Q. B. 141], but ﬁnally it will be
found that the decision of the
Court rests on one ground alone,
and does not profess to decide
the question which on this ap-
peal was principally discussed be-
fore their Lordships. The Chief
Justice, in the course of his
judgment, says :—-—‘ It was stated
to us that the parties desired to
present directly to the Court the
very important question whether
the local legislature, assuming that
it had the power themselves to
make these regulations and create
these offences, and annex penalties
for their infraction, could delegate
such powers to a Board of Com-
missioners or any other authority
outside their own legislative body.’
“ And, again, he adds :—-—‘ \Ve
are thus brought in face of a very
serious question, namely, the power
of the Ontario Legislature to vest
in the License Board the power of
creating new offences and annex-
ing penalties for their commission.’
And concludes his judgment thus,
referring to the resolutions :—‘ The
each Board in its discretion to
make them.
“ ‘ It seems very difficult, in our
judgment, to hold that the Con-
federation Act gives any such
power of delegating authority, ﬁrst
of creating a quasi offence, and
then of punishing it by ﬁne or im-
prisonment. \Ve think it is a
power that must be exercised by
the legislature alone. In all these
questions of ultra ri-res the powers
of our legislature, we consider it
our wisest course not to widen the
discussion by considerations not
necessarily involved in the decision
of the point in controversy.
“‘ \Ve, therefore, enter into no
general consideration of the powers
of the legislature to legislate on this
subject; but, assuming this right
so to do, we feel constrained to hold
that they cannot devolve or delegate
these powers to the discretion of a-
local Board of Commissioners.
“ ‘\Ve think the defendant has
the right to say that he has not
offended against any law of the
province, and that. the convictions
cannot be supported.’
“The case was taken from the
Queen’s Bench on appeal to the
Court of Appeal for Ontario, under
the Ontario Act, 44 Vict. c. 27.
(s. 17), and on the 30th June 1882
that Court reversed the decision of
the Queen’s Bench, and affirmed
the conviction.
“Two questions only appear to
have been discussed in the Court
of Appeal, lst, that the. Legisla-
ture of Ontario had not authority
to enact such regulations as were
enacted by the Board of Commis-
sioners, and to create offences and
annex penalties for their infrac-
tion; and, 2nd, that if the legis-
lature had such authority, it could
not delegate it to the Board of Com-
missioners, or any other authority
outside their own legislative body.
“This second ground was that
on which the judgment of the
Court of Queen’s Bench rested.
138
B.N.A. ACT, 92 (9).—-EXC1SE COMMISSIONERS.
HODGE v. THE
QUEEN.
“The judgments delivered in
the Court of Appeal by Spragge,
C.J., and Burton, J .A., are able
and elaborate, and were adopted
by Patterson and Morrisson, J J .,
and their Lordships have derived
considerable aid from a careful
consideration of the reasons given
in both courts.
“ The appellant now seeks to
reverse the decision of the Court
of Appeal, both on the two grounds
on which the case was discussed in
that court and on others technical
but substantial, and which were
urged before this Board with zeal
and ability. The main questions
arise on an Act of the Legislature
of Ontario, and on what have been
called the resolutions of the License
Commissioners.
“The Act in question is c. 181
of the Revised Statutes of Ontario,
187 7, and is cited as ‘the Liquor
License Act.’
“ Sec. 3 of this Act provides for
the appointment of a Board of
License Commissioners for each
city, county, union of counties, or
electoral district as the Lieutenant-
Governor may think ﬁt, and secs. 4
and 5 are as follow :—
‘ Sec. 4. License Commissioners
may, at any time before the ﬁrst
day in each year, pass a resolution,
or resolutions, for regulating and
determining the matters following,
that is to say :—
‘ For deﬁning the conditions
and qualiﬁcations requisite
to obtain tavern licenses
for the retail, within the
municipality, of spirit-
uous, fermented, or other
manufactured liquors, and
also shop licenses for the
sale by retail, within the
municipality, of such
liquors in shops or places
other than taverns, inns,
alehouses, beerhouses, or
places 'of public enter-
tainment.
‘ For limiting the number
of tavern and shop licenses
respectively, and for de-
ﬁning the respective times
and localities within
which, and the persons to
whom, such limited num-
ber may be issued within
the year from the ﬁrst day
of May on one year till
the thirtieth day of April
inclusive of the next year.
‘ For declaring that in cities
a number not exceeding
ten persons, and in towns
a number not exceeding
four persons, qualiﬁed to
have a tavern license, may
be exempted from the
necessity of having all the
tavern accommodation re-
quired by law.
‘ For regulating the taverns
and shops to be licensed.
‘(5.) For ﬁxing and deﬁning
the duties, powers, and
privileges of the inspector
of licenses of their dist-
rict.
‘Sec. 5. In and by any such
resolution of a Board of License
Commissioners, the said Board may
impose penalties for the infraction
thereof.’
“ Sec. 43 prohibits the sale of
intoxicating liquors from or after
the hour of seven of the clock on
Saturday till six of the clock on
Monday morning thereafter.
“ Sec. 51 imposes on any person
who sells spirituous liquors without
the license by law required, or
otherwise violates any other pro-
vision of the Act, in respect of
which violation no other punish-
ment is prescribed, for the ﬁrst
offence a penalty of not less than
twenty dollars and not more than
ﬁfty dollars, besides costs, and for
the second offence imprisonment
with hard labour for a period not
exceeding three calendar months.
“Sec. 52. For punishment of
offences against sec. 43 (requiring
taverns, &c., to be closed from
seven 0’ clock on Saturday night
until six o’clock on Monday morn—
ing), a penalty for the ﬁrst offence
.B.N.A. ACT, s. 92 (9).—-GAOL on PAYMENT.
139
of not less than twenty dollars with
costs, or ﬁfteen days imprisonment
with hard labour, and with in-
creasing penalties for second, third,
and fourth offences; and sec. 70
provides that where the resolution
of the License Commissioners im-
poses a penalty it may be recovered
and enforced before a magistrate in
the manner and to the extent that
bye-laws of municipal corporations
may be enforced under the autho-
rity of the Municipal Act.
“License Commissioners were
duly appointed under this statute,
who, on 25th pril 1881, in pur-
suance of its provisions, made the
resolution or regulation now ques-
tioned in relation to licensed taverns
or shops in the city of Toronto,
which contains, inter alia, the fol-
lowing paragraphs, viz. :—
‘ Nor shall any such licensed
person, directly or indirectly as
aforesaid, permit, allow, or suffer
any bowling alley, billiard or baga-
telle table to be used, or any games
or amusements of the like descrip-
tion to be played in such tavern or
shop, or in or upon any premises
connected therewith, during the
time prohibited by the Liquor
License Act, or by this resolution,
for the sale of liquor therein.
‘Any person or persons guilty
of any infraction of any of the pro-
visions of this resolution shall, upon
conviction thereof before the police
magistrate of the city of Toronto,
forfeit and pay a penalty of twenty
dollars and costs; and in default
of payment thereof forthwith, the
said police magistrate shall issue
his warrant to levy the said penalty
by distress and sale of the goods
and chattels of the offender ; and
in default of sufficient distress in
that behalf, the said police magis-
trate shall by warrant commit the
offender to the common gaol of the
city of Toronto, with or without
hard labour, for the period of ﬁfteen
days, unless the said penalty and
costs, and all costs of distress and
commitment, be sooner paid.’
“' ‘he appellant was the holder
of a retail license for his tavern, H0DGE.v- THE
and had signed an undertaking, as
follows :—
‘ We, the undersigned holders of
licenses for taverns and shops in
the city of Toronto, respectively
acknowledge that we have severally
and respectively received a copy of
the resolution of the License Com-
missioners of the city of Toronto
to regulate taverns and shops,
passed on the 25th day of April
last, hereunto annexed, upon the
several dates set opposite to our
respective signatures hereunder
written, and we severally and re-
spectively promise, undcrtake, and
agree to observe and perform the
conditions and provisions of such
resolution.-—A. G. HODGE.
‘2nd May, Tavern.’
“ He was also the holder of a hil-
liard license for the city of Toronto
to keep a billiard saloon with one
table for the year 1881, and, under
it, had a billiard table in his tavern.
“ He did permit this billiard
table to be used as such within the
period prohibited by the resolution
of the License Commissioners, and
it was for that infraction of their
rules he was prosecuted and con-
victed.
“The preceding statement of the
facts is sufficient to enable their
Lordships to determine the ques-
tion raised on the appeal.
“ lVIr. Kerr, Q.C., and Mr. Jeune,
in their full and very able argu-
ment for the appellant, informed
their Lordships that the ﬁrst and
principal question in the cause was
whether ‘ The Liqun‘ License Act
of 1877,’ in its 4th and 5th sections,
was ultra wires of the Ontario
Legislature, and properly said that
it was a matter of importance
as between the Dominion Parlia-
ment and the legislature of the
province.
“ Their Lordships do not think
it necessary in the present case to
lay down any general rule or rules
for the construction of the British
North America Act. They are
QUEEN.
1410
B.N.A. ACT, s. 92 (9).—RUSSELL EXPLAIN ED.
Home 12. THE
QUEEN.
impressed with the justice of an
observation by Hagarty, C.J., ‘ that
in all these questions of ultra wires
it is the wisest course not to widen
the discussion by considerations not
necessarily involved in the decision
of the point in controversy.’ They
do not forget that in a previous
decision on this same statute
(Parsons 'v. The Citizens’ Com-
pany, Nov. 26, 1881, 7 App.
Cas. 96; 51 L. J. P. C. 11; 45
L. T. 721 [see sub-sec. 13,post] ),
their Lordships recommended that,
‘in performing the diﬂicult duty of
determining such questions, it will
be a. wise course for those on whom
it is thrown to decide each case
which arises as best they can, with-
out entering more largely upon the
interpretation of the statute than is
necessary for the decision of the
particular question in hand.’
“ The appellants contended that
the Legislature of Ontario had no
power to pass any Act to regulate
the liquor traﬁic; that the whole
power to pass such an Act was
conferred on the Dominion Parlia-
ment, and consequently taken from
the provincial legislature, by
sec. 91 of the British North
America Act, 1867 ; and that it
did not come within any of the
classes of subjects assigned ex-
clusively to the provincial legisla-
tures by sec. 92. The class in
sec. 91 which the Liquor License
Act, 1877, was said to infringe
was No. 2, ‘The Regulation of
Trade and Commerce,’ and it was
urged that the decision of this
Board in Russell 1). Regina [see
previous case] was conclusive that
the whole subject of the liquor
traﬁic was given to the Dominion
Parliament, and consequently taken
away from the provincial legisla-
ture. It appears to their Lord-
ships, however, that the decision of
this tribunal in that case has not
the eﬂ’ect supposed, and that, when
properly considered, it should be
taken rather as an authority in
support of the judgment of the
Court of Appeal.
“ The sole question there was,
whether it was competent to the
Dominion Parliament, under its
general powers to make laws for
the peace, order, and good govern-
ment of the Dominion, to pass the
Canada Temperance Act, 1878,
which was intended to be applicable
to the several provinces of the Do-
minion or to such parts of the pro-
vinces should locally adopt it.
It was not doubted that the Dominion
Parliament had such authority un-
der sec. 91, unless the subject fell
within some one or more of the
classes of subjects which by sec. 92
were assigned exclusively to the
legislatures of the provinces.
“ It was in that case contended
that the subject of the Temperance
Act properly belonged to No. 13 of
sec. 92, ‘ Property and Civil Rights
in the Province,’ which it was said
belonged exclusively to the pro-
vincial legislature, and it was on
what seems to be a misapplication
of some of the reasons of this Board
in observing on that contention
that the appellant’s counsel prin-
cipally relied. These observations
should be interpreted according to
the subject-matter to which they
were intended to apply.
“Their Lordships, in that case,
after comparing the Temperance
Act with laws relating to the sale
of poisons, observe that,—
‘ Laws of this nature, designed
for the promotion of public order,
safety, or morals, and which sub-
ject those who contravene them to
criminal procedure and punishment,
belong to the subject of public
wrongs rather than to that of civil
rights. They are of a nature which
fall within the general authority of
Parliament to make laws for the
order and good government of
Canada.’
“ And again :—
‘What Parliament is dealing
with in legislation of this kind is
not a matter in relation to property
and its rights, but one relating to
public order and safety. That is
the primary matter dealt with, and
B.N.A. ACT, S. 92 (9).--PUBLIO SAFETY. 141
though incidentally the free use of cipality; for limiting the number HOME v- THE
QUEEN. -_
things in which men may have
property is interfered with, that
incidental interference does not
alter the character of the law.’
“And their Lordships’ reasons
on that part of the case are thus
concluded :—
‘ The true nature and character
of the legislation in the particular
instance under discussion must
always be determined, in order to
ascertain the class of subject to
which it really belongs. In the
present case it appears to their
Lordships, for the reasons already
given, that the matter of the Act
in question does not properly belong
to the class of subjects “Property
and Civil Rights ” within the mean-
ing of sub-section 13.’
“It appears to their Lordships
that Russell '0. The Queen [see pre-
vious case], when properly under-
stood, is not an authority in sup-
port of the appellant’s contention,
and their Lordships do not intend
to vary or depart from the reasons
expressed for their judgment in
that case. The principle which
that case and the case of The
Citizens’ Insurance Company illus-
trate is, that subjects which in one
aspect and for one purpose fall
within sec. 92, may in another
aspect and for another purpose fall
within sec. 91.
“Their Lordships proceed now
to consider the subject-matter and
legislative character of secs. 4 and 5
of ‘The Liquor License Act of
1877, c. 181, Revised Statutes of
Ontario.’ That Act is so far con-
ﬁned-in its operation to munici-
palities in the province of Ontario,
and is entirely local in its character
and operation. It authorizes the
appointment of License Commis-
sioners to act in each municipality,
and empowers them to pass, under
the name of resolutions, what we
know as bye-laws, or rules to deﬁne
the conditions and qualiﬁcations
requisite for obtaining tavern or
shop licenses for sale by retail of
spirituous liquors within the muni-
of licenses; for declaring that a
limited number of persons qualiﬁed
to have tavern licenses may be
exempted from having all the tavern
accommodation required by law,
and for regulating licensed taverns
and shops, for deﬁning the duties
and powers of license inspectors,
and to impose penalties for infrac-
tion of their resolutions, These
seem to be all matters of a merely
local nature in the province, and to
be similar to, though not identical
in all respects with, the powers
then belonging to municipal insti-
tutions under the previously exist-
ing laws passed by the local
parliaments. .
“Their Lordships consider that
the powers intended to be conferred
by the Act in question‘, when pro-
perly understood, are to make regu—
la-tions in the nature of police or
municipal regulations of a merely
local character for the good govern-
ment of taverns, &c., licensed for
the sale of liquors by retail, and
such as are calculated to preserve,
in the municipality, peace and
public decency, and repress drunk-
enness and disorderly and riotous
conduct. As such they cannot be
said to interfere with the general
regulation of trade and commerce
which belongs to the Dominion
Parliament, and do not conﬂict.
with provisions of the Canada
Temperance Act, which does not
appear to have as yet been locally
adopted.
“The subjects of legislation in
the Ontario Act of 1877, secs. 4
and 5, seem to come within the
heads Nos. 8, 15, and 16 of sec. 92
of British North America Statute,
1867.
“ Their Lordships are, therefore,
of opinion that, in relation to
secs. 4- and 5 of the Act in ques-
tion, the Legislature of Ontario
acted within the powers conferred
on it by the Imperial Act of 1867,
and that in this respect there is no
conﬂict with the powers of the
Dominion Parliament,
.0’...
14:2 B.N.A. ACT, 92 (9).-—DELEGATES DELEGATING.
HoneE v THE
QUEEN.
“Assuming that the local legis-
lature had power to legislate to the
full extent of the resolutions passed
by the License Commissioners, and
to have enforced the observance of
their enactments by penalties and
imprisonment with or without
hard labour, it was further con-
tended that the Imperial Parlia-
ment had conferred no authority
011 the local legislature to delegate
those powers to the License Com-
missioners or any other persons.
In other words, that the power
conferred by the Imperial Parlia-
ment on the local legislature
should be exercised in full by that.
body, and by that body alone. The
maxim delegates mm potest dele-
gare was relied on.
“ It appears to their Lordships,
however, that the objection thus
raised by the appellants founded
on an entire misconception of the
true character and position of the
provincial legislatures. They are
in no sense delegates of or acting
under any mandate from the Im-
perial Parliament. When the
British North America Act enacted
that there should be a legislature
for Ontario, and that its legislative
assembly should have exclusive
authority to make laws for the
province and for provincial pur-
poses in relation to the matters
enumerated in sec. 92, it conferred
powers not in any sense to be
exercised by delegation from or as
agents of the Imperial Parliament,
but authority as plenary and as
ample within the limits prescribed
by sec. 92 as the Imperial Parlia-
ment in the plenitude of its power
possessed and could bestow. Within
these limits of subjects and area
the local legislature is supreme,
and has the same authority as the
Imperial Parliament, or the Parlia-
ment of the Dominion, would have
had under like circumstances to
conﬁde to a municipal institution
or body of its own creation autho-
rity to make bye-laws or resolutions
as to subjects speciﬁed in the enact-
ment, and with the object of carry-
ing the enactment into operation
and effect.
“ It is obvious that such an
authority is ancillary to legislation,
and without it an attempt to pro-
vide for varying details and ma-
chinery to carry them out might
become oppressive, or absolutely
fail. The very full and very
elaborate judgment of the Court of
Appeal contains abundance of pre-
cedents for this legislation, entrust—
ing a limited discretionary autho-
rity to others, and has many illus—
trations of its necessity and con-
venience. It was argued at the
bar that a legislature committing
important regulations to agents or
delegates eifaces itself. That is
not so. It retains its powers in—
tact, and can, whenever it pleases,
destroy the agency it has created
and set up another, or take the
matter directly into its own hands.
How far it shall seek the aid of
subordinate agencies, and how long
it shall continue them, are matters
for each legislature, and not for
courts of law, to decide.
“Their Lordships do not think
it necessary to pursue this sub_
ject further, save to add that, if
bye-laws or resolutions are war-
ranted, power to enforce them
seems necessary and equally law-
ful. Their Lordships have now dis-
posed of the real questions in the
cause.
“ Many other objections were
raised on the part of the appellant
as to the mode in which the License
Commissioners exercised the autho-
rity conferred on them, some of
which do not appear to have been
raised in the court below, and
others were disposed of in the
course of the argument, their Lord-
ships being clearly of opinion that
the resolutions were merely in the
nature of municipal or police regu-
lations in relation to licensed houses,
and interfering with liberty of
action to the extent only that was
necessary to prevent disorder and
the abuses of liquor licenses. But
it was contended that the pro-
B.N.A. ACT, s. 92 (9).—MUNICIPAL COUNCILS.
143
vincial legislature had no power to
impose imprisonment or hard labour
for breach of newly-created rules
or bye-laws, and could confer no
authority to do so. The argument
was principally directed against.
hard labour. It is not unworthy
of observation that this point, as to
the power to impose hard labour,
was not raised on the rule m'sz' for
the certiorari, nor is it to be found
amongst the reasons against the
appeal to the Appellate Court in
Ontario.
“It seems to have been either
overlooked or advisedly omitted.
“ If, as their Lordships have de-
cided, the subjects of legislation
come within the powers of the pro-
vincial legislature, then No. 15 of
sec. 92 of the British North
America Act, which provides for
‘ the imposition of punishment by
ﬁne, penalty, or imprisonment, for
enforcing any law of the province
made in relation to any matter
coming within any of the classes
of subjects enumerated in this
section,’ is applicable to the case
before us, and is not in conﬂict
with No. 27 of sec. 91; under
these very general terms, ‘ the im—
position of punishment by imprison-
ment for enforcing any law,’ it
seems to their Lordships that there
is imported an authority to add to
the conﬁnement or restraint in
prison that which is generally in-
cident to it,-—‘ hard labour’; in
other words, that ‘imprisonment’
there means restraint by conﬁne-
ment in a prison, with or without
its usual accompaniment, ‘hard
labour.’
“ The provincial legislature hav-
ing thus the authority to impose
imprisonment, with or without hard
labour, had also power to delegate
similar authority to the municipal
body which it created, called the
License Commissioners.
“ It is said, however, that the legis-
lature did not delegate such powers
to the License Commissioners, and
that therefore the resolution im-
posing hard labour is void for
excess. It seems to their Lordships HODGE v- THE
that this objection is not well
founded.
“In the ﬁrst place, by sec. 5 of
the Liquor License Act, the Com-
missioners may impose penalties.
Whether the word ‘ penalty’ is
well adapted to include imprison-
ment may be questioned, but in
this Act it is so used, for sec. 52
imposes on offenders against the
provisions of sec. 43 a penalty of
20 dollars or ﬁfteen days’ imprison-
ment, and for a fourth oﬁence a
penalty of imprisonment with hard
labour only. ‘ Penalty ’ here seems
to be used in its wider sense as
equivalent to punishment. It is
observable that in sec. 59, where
recovery of penalties is dealt with,
the Act speaks of ‘ penalties in
money.’ But, supposing that the
‘penalty’ is to be conﬁned to
pecuniary penalties, those penalties
may, by sec. 70, be recovered and
enforced in the manner, and to the
extent, that bye-laws of municipal
councils may be enforced under the
authority of the Municipal Act.
The word ‘ recover’ is an apt word
for pecuniary remedies, and the
word ‘ enforce ’ for remedies again st
the person.
“ Turning to the Municipal Act,
we ﬁnd that, by sec. 454, muni-
cipal councils may pass bye-laws
for inﬂicting reasonable ﬁnes and
penalties for the breach of any bye-
laws, and for inﬂicting reasonable
punishment by imprisonment, with
or without hard labour, for the
breach of any bye-laws in case the
ﬁne cannot be recovered. By secs.
400 to 402 it is provided that ﬁnes
and penalties may be recovered and
enforced by summary conviction
before a justice of the peace, and
that, where the prosecution is for
an offence against a municipal bye-
law, the justice may award the
whole or such part of the penalty
or punishment imposed by the bye-
law as he thinks ﬁt; and that, if
there is no distress found out of
which a pecuniary penalty can be
levied, the justice may commit the
QUEEN.
"i000
144
B.N.A. ACT, s. 92 (9).—COMPARING ACTS.
HODGE v. THE
QUEEN.
THE GOVERNOR-
GENERAL
DouINIoN
v. THE Four:
PROVINCES.
SEVERN v. REG.
offender to prison for the term, or
some part thereof, speciﬁed in the
bye-law. If these bye-laws are to
be enforced at all by ﬁne or im-
prisonment, it is necessary that
they should specify some amount
of ﬁne and some term of imprison-
ment.
“ The Liquor License Act, then,
gives to the Commissioners either
power to impose a penalty against
the person directly, or power to
impose a money penalty, which,
when imposed, may be enforced
according to secs. 454 and 400-2
of the Municipal Act. In either
case, the Municipal Act must be
read to ﬁnd the manner of e11-
forcing the penalty, and the extent
to which it may be enforced. The
most reasonable way of construing
statutes so framed is to read into
the later one the passages of the
former which are referred to. So
reading these two statutes, the Com-
missioners have the same power of
enforcing the penalties they impose
as the Councils have of enforcing
their bye-laws, whether they can
impose penalties against the person
directly, or only indirectly as the
means of enforcing money penal-
ties. In either case, their reso-
lution must, in order to give the
magistrate jurisdiction, specify the
amount of punishment. In either
case, their resolution now under
discussion is altogether within the
powers conferred upon them.
“Their Lordships do not think
it necessary or useful to advert to
some minor points of discussion,
and are, on the whole, of opinion
that the decision of the Court of
Appeal of Ontario should be
aﬂirmed, and this appeal dismissed,
with costs, and will so humbly
advise Her Majesty.”
Held in SEVERN v. REG., Jan. 28,
1878, 2 S. C. R. 70, that the right
conferred on the Ontario Legis-
lature by sub-sec. 9, sec. 92 of the
B. N. A. Act, does not extend to
licenses on brewers, or “other
licenses” which are not of a local
or municipal character. This was
the case of a brewer who, being
licensed by the Government of
Canada under 31 Vict. c. 8. (D.)
for the manufacture of fermented
spirituous and other liquors, sold
by wholesale for consumption with-
in the province of Ontario a large
quantity of said fermented liquors
so manufactured by him at Y ork-
ville, for consumption within the
province of Ontario, without ﬁrst
obtaining a shop license or a license
under the Ontario Act, 37 Vict.
c. 32., and amending Act, and it
was there held the rights given by
sub-sec. 9 of sec. 92 did not ex-
tend to licenses on brewers. But
see discussion in the next case.
In the case of the Dominion
Liquor License Acts, 1883—4, 46
Vict. c. 30., and 47 Vict. c. 32.,
GOVERNOR-GENERAL DOMINION r.
THE FOUR PROVINCES, a special
clause (26) was inserted in the
latter Act enabling the matter
to be referred on petition of the
Governor-General, with the advice
of his Privy Council, to the Sn-
preme Court [see now Supreme
Court Act, 1891, 54 & 55 Vict.
c. 25. s. 4, alluded to post, sec.
101], and to be further referred
if Her Majesty saw ﬁt to the
Privy Council in England for
ﬁnal determination. The Supreme
Court heard The Governor-Gene-
ral Dominion v. The Four Pro-
vinces, and, giving no formal
reasons, certiﬁed that, with the
exception of two sets of pro-
visions, namely, those relating to
wholesale and vessel licenses, the
Liquor License Acts, 1883—4, were
ultra wires. The following argu-
ment in this case is taken from
the transcript of the shorthand
notes, kindly lent to me by
Messrs. Freshﬁelds and Williams,
and I have also veriﬁed these notes
with the printed copy in the Privy
Council Oﬁice. Of course the
argument is not given re-rl’mlim
B.N.A. ACT, s. 92 (9).-—LIQIIOR ACTS, 18823-4.
its
here, although it is in the short-
hand notes. Lord Herschell, L.C.,
and Lord Davey have kindly read
the arguments over.
Sir F. Herschel], Q.C. (now, June
1895, Lord Chancellor) (with him
Burbidge, Q.C., of the Canadian
Bar) and Jeune (agents, Bompas,
Bischoﬁ, Dodgson, and Coxe) were
heard for the Dominion.
Davey, Q.C. (now Lord Davey),
and Haldane (with them Fraser,
Q.C., and Ruggles Church, Q.C.,
both of the Canadian Bar), (agents,
Freshﬁelds and Williams) were
heard for the Four Provinces——
Ontario, Quebec, Nova Scotia, and
New Brunswick.
11 and 12- Nov. 1885. Present,
Lord Halsbury, LC, and Lords
Fitzgerald, Monkswell, Hobhouse;
and Sir Montague E. Smith, Sir
Barnes Peacock, and Sir Richard
Couch.
Sir Farrer Herschell, Q.C.: “ The
Canada Temperance Act of 187 8
was to enable localities throughout
Canada, in any part where they
pleased, to prohibit the sale of in-
toxicating liquors. It empowered
the localities in any part of the
Dominion to prohibit the sale of
intoxicating liquors, subject to cer-
tain exceptions, where they might
be required for purpose of medi-
cine or sacramental purposes. The
Act was brought. into force not by
the municipal authorities, but by a
vote of the city or of the county of
a bare majority—a vote taken for
the purpose by the same persons as
would vote for a member of Parlia-
ment. The will of the localities
was to be expressed by these votes.
Those counties that did not adopt
it were left outside it altogether.
It might be adopted partly in a
province. This Act enabled total
prohibition. The preamble of the
Liquor Licensing Act of 1883 was:
‘ Whereas it is desirable to regu-
late the traﬂic in the sale of intoxi-
cating liquors, and it is expedient
that the law respecting the same
should be uniform throughout the
Dominion, and that provision should
S 2840.
be made in regard thereto for the
better preservation of peace and
order: therefore Her Majesty, by
and with the consent of the Senate
and House of Commons of Canada,
enacts as follows :— ’ Then there
is the title, ‘ An Act respecting the
sale of intoxicating liquors and the
issue of licenses therefor.’ This
Act, like the last, dealt with the
whole Dominion, but it would
operate in those parts in which the
former Act had not been taken
advantage of, in which there was
not total prohibition. Under this
Act power was given to issue
licenses by the Government of the
Dominion, and no person was to be
allowed to deal in il'ltoxicating
liquors who had not one such
license. There were various classes
of licenses Hotel licenses, Saloon
licenses, \Vholesale licenses, and
Vessel licenses. But one or other
of these licenses each person must
have who desired to deal in intoxi-
cating liquors in any part of the
Dominion. There are provisions
accordingly which will limit in the
various areas the number of licenses
that are to be granted, so that in
those parts of Canada which had
not taken advantage of the Act of
total prohibition, the intention was
to regulate the traffic by diminish-
ing the number of persons who
were at liberty to deal in the arti-
cles, and the Act created a Board
of Commissioners. Sec. 6 creates
inspectors of licenses, appointed by
the Board of Commissioners. Sec.
7 provided for the licenses. ‘The
Governor in Council may direct
the issue of licenses on stamped
paper, written or printed, or partly
written and partly printed, of the
several kinds or description follow-
ing, that is to say,—Hotel licenses;
Saloon licenses; Shop licenses;
Vessel licenses; Wholesale licenses.’
“Sec. 7, sub-sec. (a), is, ‘An
hotel license or saloon license
shall authorize the licensee to sell
and dispose of any liquors in quan-
tities not exceeding one quart,
which may be drunk in the hotel
K
GOVERNOR-
GENERAL
DOMINION
v. THE Fora
PROVINCE-S.
146 B.N.A. Ao'r, s. 92 (9).-~L1QUOR AND EXPLOSIVES.
GovERNou-
GENERAL
DomNIoN
v. THE FoUR
PROVINCES.
or saloon in which the same is sold.
(6) A ‘ Shop license ’ shall authorize
the licensee to sell and dispose of
any liquors not to be drunk in or
upon the premises for which the
license is granted, provided that not
less in quantity than one pint shall
be sold or disposed of at any one
time to any one person.’ The
ﬁrst is a license to be drunk on the
premises, and the shop license is a
license to be drunk off the premises.
Then a ‘ Vessel license ’ shall autho-
rize the master of the vessel to sell
to any passenger on board. ‘ A
Wholesale license shall authorize the
licensee to sell and dispose of
liquors in his warehouse, store,
shop, or place deﬁned in the license
in quantities of not less than two
gallons in each cask or vessel; and
in any case when such selling by
wholesale is in respect of bottled
ale, porter, beer, wine, or other
fermented or spirituous liquor, each
such sale shall be in quantities of
not less than one dozen reputed
quart bottles: liquors sold under
a wholesale license are not to be
consumed in, or upon the house or
premises in respect of which the
license is granted.’ Notwithstand-
ing this license, the local legislature
may also impose a tax on the sale,
so that there might be double
licenses. [Sir Montague Smith:
Upon this question of revenue, just
to clear it up ; there is a provision
that the surplus is to be paid over
to the provincial legislature] Sir
Farrer Herschell: Yes. [Sir Mon-
tague Smith: Then the Dominion
assumes to tax the provinces for
their own beneﬁt] The license fee
is only 5 dollars and 10 dollars.
The intention is to make a fee
which shall cover the expenses.
“ There were certain principles
which have been affirmed and re-
affirmed, which the Board would
‘probably not think it desirable to
depart from. It has been laid
down in more than one case, that
for determining the question whe-
ther any matter is a matter within
the exclusive jurisdiction of the
province, the proper course is ﬁrst
to look at sec. 92 to see whether it
comes within any of the clauses
enumerated there. And if it does
not, then there is an end to the
contention that it is within the ex-
clusive legislature of the province.
But even if it is found in sec. 92,
then you must look to see. 91 and
see whether you ﬁnd it in sec. 91,
because if it be in sec. 91, then so
far sec. 91 overrides and limits
sec. 92. Russell r. The Queen [see
above] raised the validity of the
Canada Temperance Act, 1878.
That appears to be a distinct autho-
rity that the fact that the legisla-
tion is such as would diminish
revenue by preventing money being
received for licenses which down
to that time had been received, is
not a ground for contending it is
not within the powers of the
Dominion Parliament. Suppose
the carrying of arms was prohibited,
in a time of public danger, by any
person not having a license from
the Dominion Government, the
fact that the provincial government
had the power to say ‘Everybody
who carries a gun shall pay us
10 dollars a year to help our reve-
nue,’ that could not prevent the ‘Do-
minion Parliament saying ‘Every-
body who carries a gun, whether
he has a provincial license or not,
shall for the safety of the com-
munity obtain a license from the
Governor-General.’ If the Cana-
dian Temperance Act, as a general
regulation of the traffic in intoxi-
cating liquors throughout the Do-
minion, falls within the class of
subjects, ‘ The regulation of trade
and commerce,’ sec. 91 , it does not
matter Whether it comes within
sec. 92 or not. There is no dis-
tinction in principle between
Russell 'r. The Queen and this case.
Both deal with intemperance as
being an evil affecting the whole
Dominion. [Sir Montague Smith:
The ratio decidendi of that case is
that it is not within any part of
sec. 92.] The difficulty in viewing
this Act in the same light as the
B.N.A. ACT, s. 92 (9).—-DOM. & PROV’. OCCUPIER. 1417
Act under consideration in Russell’s
arises from the machinery of the
legislation as distinguished from the
purpose and object of the legisla-
tion. The machinery of this legis-
lation of limitation and restriction
is carried out by means of a license,
but the license is only part of the
machinery for carrying out the ob-
ject of the Act, and is not part of
the object of the Act, which is to
restrict the number of public
houses. The giving of alicense by
a local body might be for the pur-
pose of raising revenue, an act
which in one aspect of it might be
within sec. 92, and in another
aspect within sec. 91, and it may
he that a. provincial legislature
would have power to legislate with
regard to certain cases arising within
the province, even although it was a
matter in which the Dominion might
legislate for the whole Dominion.
The judges of the Supreme Court,
gave no judgment, but it was said
during the argument the view they
took would have been diﬁerent, but
that they understood that The Queen
'0. Hodge [see above] modiﬁed
Russell 1). The Queen [see above].
But see Earl Selborne in L’Union
St. Jacques De Montreal 0. Bel-
isle [see ante, p. 45], showing
that you might have a provincial
law properly dealing with a local
matter under sec. 92, and that
would not exclude the Dominion
Parliament, or establish its incom-
petency, to make a general law to
prevail throughout the whole .Do-
minion which should deal with the
same matter, and so limit the right
which would otl'ierwise have existed
of the local parliament to deal with
it as a local i'natter as it pleased.
“The opinion expressed is, if the
Dominion Parliament had dealt.
generally with all such bodies,
bringing them within the law of
bankruptcy and insolvency, that
then it would not have been compe-
tent to the provincial legislatures to
take a particular body of that law
and say, ‘ We do that because this is
a local matter.’ It may well be
that where the Dominion Parlia-
ment has not dealt with certain
subject-matters, it might be within
the competency of the provincial
parliament to deal with them, and
yet that it might be open to the
Dominion Parliament to make a
general law relating to the same
subject-matter dealing with the
whole of the Dominion, which
would override what had been
otherwise done. [Lord Monkswell :
It is intimated in that case, if the
Dominion Parliament had occupied
the ground before, then the local
government could not occupy it.
But suppose the local government
ﬁrst occupied the ground P] It does
not depend on which is ﬁrst or last
because if the Dominion can deal
with it at all, it is not a matter
exclusively committed to the pro-
vincial legislature. [Lord Monks-
well: It would follow if the Do-
minion Parliament could by a
general law exclude the local par-
liament from dealing with the
matter, it could, after the local par-
liamm'it had dealt with it, make it
null and void] Because the
powers of the Dominion Parliament
are unlimited, except so far as
matters have been exclusively given
to the provinces. The next case is
Hodge 'r. The Queen [see abore].
[Sir Barnes Peacock: I think it
is a mistake to say I delivered
that judgment. I was present,
but Lord Fitzgerald delivered the
judgment] That case does not
purport to limit in any way
Russell 'r The Queen [see abore].
It accepts it, but holds that the
decision in question was in no way
inconsistent with it Therefore,
Hodge r. The Queen cannot be
taken to have decided that the
liquor traﬁ‘lc in each province is so
exclusively committed to the legis-
lature of the province as that the
Dominion Parliament cannot deal
with it. All that it seems to decide
is that, so far as it does not conﬂict
with any general law made in re-
lation to the liquor traﬁ’ic by the
Dominion Parliament, it is com-
GOVERNOR—
GENERAL
DOMINION
v.’ THE FOUR
PRovmoEs.
K2
14s
B.N.A. ACT, s. 92 (9).—-IVHICH PREVAILS.
Govmxoa-
GENERAL
DOMINION
v. THE Form
PROVINCES.
petent in each province to make
local regulations as to the manner
in which business shall be locally
conducted. [Lord Halsbury, L.C. :
Suppose they deal with it incon-
sistently P] Then the Dominion
Parliament prevails. [Lord Hals-
bury, L.C : Suppose provincial
regulations allowed only twelve
public houses in a particular dis-
trict, and the wording of the Do-
minion Act allowed less or twice
as many P] Russell 1’. The Queen
decides that the Dominion must
prevail, because in Ontario the
local legislature had said any per-
son up to a certain number may
obtain licenses; then came the
Dominion statute, which allowed
nobody, whether licensed or not,
to carry on the traffic, and that
was held as good law. It applied
to this very case, because what was
being considered in Hodge r. The
Queen was an Act of Ontario of
1877, and the Canada Temperance
Act was an Act of the following
year, 1878, and, therefore, when
the Board held the Canada Tem-
perance Act to be good, this Board
held it did override the liquor
legislation of the province of On-
tario passed in 1877. [Sir Mon-
tague Smith: You must look at
every Act to see what is the scope
and object and purpose of it. The
distinction between the Act in
Russell 2'. The Queen and the Act
here in question is that that in
Russell 1:. The Queen was a pro-
hibitive Act applying to the whole
of the Dominion regardless of what
had been done, and prohibiting
the liquor trafﬁc; the question is,
whether this is not regulating in
each province the local traﬁic.
This Act is not really to prohibit,
but to limit, not to prevent the
liquor traﬁic, but to regulate it.
To my mind there is a distinction
between the two Acts] There
may be a distinction. But if
Russell 1). The Queen is as good
'law as Hodge 'v. The Queen, the
latter case cannot mean that the
Dominion Parliament cannot pass
laws dealing with the liquor trafﬁc
inconsistent with and overriding
the local laws. All that had to be
decided in Hodge r. The Queen
was whether a local Act Which
gave the Commissioners power to
make regulations, one of which
regulations related to the playing
of billiards in licensed houses, was
to that extent valid. The question
did not arise whether the Dominion
Act could have overridden that. No
doubt the wider question was de-
cided by that case, that the Act
was within the competence of the
provincial legislature. [Sir Barnes
Peacock: It was a local law, and
one could suppose it was good not-
withstanding that it was for the
‘peace, order, and good govern-
ment of Upper Canada’; but it
would not be void because of the
general provisions giving power to
the Dominion Parliament to legis-
late for the ‘peace, order, and
good government’ of Canada as em-
bracing the whole of the provinces.
Therefore, you could not say
that if it was of a purely local
nature it was not void as inter-
fering with the general power of
the Dominion; but then that law
did not exclude the general power
of the Dominion to legislate when
they wanted a similar law extend-
ing over all the provinces] Your
Lordships held in Russell r. The
Queen that the Canadian 'I‘emper-
ance Act of 1878 did in any par-
ticular county or city enable that
county or city, by virtue of some-
thing entirely outside the provincial
legislature, to set aside what the
provincial legislature had enacted.
[Sir Barnes Peacock: Suppose a
license for Upper Canada. Suppose
in Lower Canada they refused to
pass a license law, and that there
was drunkenness and all kinds of
mischief going on in Lower Can-
ada—could not the Dominion say,
notwithstanding that Lower Can-
ada does not choose to pass a law
similar to Upper Canada, we will
legislate for Lower Canada ? They
could legislate for Lower Canada
B.N.A. ACT, .q. 92 (9).——PAR-SO'N’S CASE EXAMINED. 149
as part of the whole Dominion,
and therefore they could pass a
law applicable to the whole Do-
minion similar to that which On-
tario had passed for itself, seeing
that there would be peace and
good order in Ontario under that
law, and drunkenness and all sorts
of mischief going on in the adjoin_
ing province, had not the Dominion
then power to say we will pass a
law for the ‘ peace, order, and good
government ’ of the whole of Can-
ada, including all the provinces, and
we will pass a law which will in-
clude Quebec as well as Ontario]
That is our contention. Now in The
Citizens’ Insurance Co. '0. Parsons
[see sub-sec. 13, sec. 92], the ques-
tion was the validity of a law
passed by the province of Ontario
dealing with policies of insurance
entered into or in force in the
province of Ontario for insuring
property situated therein against
ﬁre, and it prescribed certain con-
ditions which were to form part of
such contracts, and the question
was whether it was an Act the
local legislature had power to pass;
or whether it was an Act ‘ regu-
lating trade and commerce ’ which
they had no power to pass. Se-
condly, was it: incol'lsistent with an
Act of the Dominion Parliament
which required all insurance com-
panies, whether incorporated by
Dominion or provincial authority,
to obtain a license to be granted
only upon compliance with the
Act? It was a case in which the
Dominion had legislated with re-
gard to all insurance companies
throughout the Dominion. It was
argued the provincial Act was
ultra wires because it was a matter
relating to ‘trade and commerce.’
It was held it was not. That
the creation of certain implied con-
ditions in that particular province,
and relating to the property in that
province, was a matter dealing with
civil rights in that province, and
was not a matter overborne by the
provisions as to the regulation of
‘ trade and commerce.’
“ Unfortunately, in the judgment GOVERNOR-
there, in dealing with the words
‘ regulation of trade and commerce,’
it was said: ‘It may be they
would include general regulations
of trade affecting the whole Do-
minion.’ So what is of very con-
siderable importance in this case
was left undecided. The question
there was, whether the whole matter
being within sec. 92, it was over-
ridden by sec. 91 In that case
'Cushing v. Dupuy was referred to.
“ Now, considering the two sec-
tions, 91 and 92, and, ﬁrst, whether
this is legislation exclusively con-
ferred on the provincial legislature.
Its aim and object, obviously, is
the promotion of temperance and
the checking of the evils of intem-
perance throughout the Dominion.
It seeks to accomplish that object in
those districts which were not pre-
pared absolutely to prohibit the
sale of intoxicating liquors, by
limiting the extent of their sale, by
limiting the number of places where
they could be sold, and also by en-
abling smaller districts than those
which were dealt with by the Act
of 1878 to effect that prohibition
within their area which, under the
Act of 1878, larger districts could
effect. Such an Act applying to
the Dominion throughout, and
having such an object, is not. with-
in any of the sub-sections of sec.
92. If it is to be found in any of
them, it is overridden by the pro-
visions of sec. 91. It has been
decided that sec. 92 does not ex-
clusively commit to the provincial
legislatures all the regulations and
limitations of the liquor traﬂic in
their provinces. Russell 1). The
Queen. I shall contend there is
no distinction between an Act
having the same ultimate object
which enables or compels restric-
tion and limitation; that in each
case the purpose and object is the
promotion of temperance, and the
consequent repression within the
Dominion of the evils which in-
temperance causes; that there is no
distinction for that purpose be-
GENERAL
DOMINION
v. THE FOUR
PROVINCES.
150
B.N.A. AUT, s. 92 (9)._-PREVIoUs POWERS.
GOVERNOR-
GENERAL
DOMINION
v. THE FOUR
PRovINcEs.
tween prohibition and limitation
when you are considering sec. 92.
“ It was relied on in the court be-
low that sub-sec. 8, sec. 92, appli-
ed. But if ‘municipal institutions ’
enables the establishment by the
local legislature of municipal bodies
with some powers, it does not
mean you can give them every
power which have ever been exer-
cised by municipal bodies in (Jan-
ada. The argument in the court
below was that you ﬁnd some of
the municipal bodies in some of the
provinces before the Dominion Act
have dealt with this question of
liquor traﬂic, therefore, when they
were given exclusive power to
make laws in relation to municipal
institutions, that gave them the
power exclusively to make these
liquor laws. But the very object-
of the Dominion Act was to take
away from the provincial legisla-
ture some of the powers which
they had before possessed, and to
confer those powers on the central
authority. And, therefore, to say
they had all the power of legislation
which before they could exercise
through their municipal bodies is
an argument which cannot stand.
[Lord Halsbury, LC : I should
have thought it meant to create
them ; how many they were to con-
sist of; and how they were to be
elected. That cannot touch this
case]
“ The power of exclusive legisla-
tion in relation to sub-sec. 9 is
not a general power of granting
shop, saloon, tavern, auctioneer, and
other licenses, but only to the
raising of a revenue for provincial,
local, or municipal purposes. [Lord
Monkswell: You understand by
that that all they could do would
be to enact that a keeper of a
saloon should have a license if he
applied for it; that they could not
give any power to discriminate as
to the class of saloon, nor make a
regulation that a sober publi-
ca-n should have a license, and a
drunken publican should not have
a license] Not under the 9th sub-
section. They are not intended to
deal with the matter as a regulation
of the trade, and that is why the
words are added, ‘In order to the
raising of a revenue.’ It would be
a very grave question whether in
general law licensing trades would
not come within ‘ regulation of trade
and commerce,’ which it was not in-
tended should be dealt with by the
separate provincial legislatures The
words used are very strong, read-
ing, as you must, the legislative
part with it. ‘ In each province
the legislature may exclusively
make laws in relation to shop, &c.,
in order to the raising of a revenue
for provincial, local, or municipal
purposes.’ It is only in order to do
that, that they have any power con—
ﬁded to them of exclusively making
laws in relation to shops, saloons,
and taverns ; that points to the view
that general interference with these
matters was not a matter exclu-
sively given to the provincial legis-
latures, because it was a trade
matter intended to be left to the Do-
minion. [Lord Monkswell: Could
not the provincial legislature deﬁne
the description of a shop which
should have a license and another that
should not P] They might do it for
the purpose of raising a revenue.
[ Sir Richard Couch: They might
say that a shop rated at a certain
amount should have a license]
Yes, and if they required the name
of the proprietor should be painted
above the doorway as a security for
the payment of revenue, no doubt
they could do it. [Lord Halslulry,
L.C.z Then it goes to excluding
from the provinces any jurisdiction
in this matter at all except for the
purpose of revenue] No, because
in Hodge 1’. the Queen they did
not hold the power came under the
9th sub-sec, but under the 8th, 15th,
16th—15 being merely the imposi-
tion of penalties for carrying out any
of the others. Then it is certain
10, 11, 12 would not be material.
Now I apprehend the sale of intoxi-
cating liquors and its restriction
and control is not a matter of ‘pro-
B.N.A. ACT, s. 92 (9).--IMPEA(JH[NG non. ACT.
151
perty or civil rights’ within the
meaning of sub-sec. 13. To prohibit
a man from selling goods may aﬁect
property: Russell 1*. The Queen. If
that case is right, it cannot be that
absolute prohibition is not a matter
interfering with ‘ propertyr and
civil rights’; but that limitation
is a matter that does.
“Those who impeach this Act of
the Dominion must not only show
that it comes within sec. 92, but
that it is not within sec. 91. [Lord
Halsbury, L.C.: Take the case of
‘ Marriage and Divorce,’ sub-sec.
26, sec. 91, and the ‘ Solemnization
of Marriage,’ sub-sec. 12, sec. 92.]
‘ Marriage and Divorce’ in sec.
91 would clearly override the
‘ Solemnization of Marriage,’ sec.
92, except so far as related to the
solemnization of marriage. If there
is any inconsistency between sec.
92 and sec. 91, the latter section
overrode the former, for it says : ‘ It
is hereby declared that notwith-
standing anything in this Act ’—
that must include the words in sec.
92—‘ the exclusive legislative au-
thority of the Parliament of Canada
extends to all matters coming with-
in the class of subjects next herein-
after enumerated. Then we place
reliance on sub-sec. 2, sec. 91. You
may make laws for the peace,
order, and good government of
Canada ‘in regulation of trade
and commerce,’ and this is a matter
which comes distinctly within that
sub-sec. 2 of sec. 91. And it is
only in that way that you can
understand the Supreme Court
holding that those provisions of
this Act which have relation to
wholesale licenses were within the
competency of the Dominion Par-
liament, although it relates to
all the provinces and contains
stipulations taking eﬁect in all.
The Act is held valid as to whole-
sale licenses and not with regard to
the retail trade, but to say the
legislative power of the Dominion
Parliament extends to Wholesale
and not to retail is a distinction
which does not ﬁnd any warrant
in sec. 91 , and it would be imprac-
ticable in its working. They have
held also that licensing vessels
comes also within the power of the
Dominion Parliament, probably
putting it under the 10th sub-sec,
‘ Navigation and Shipping.’ Cer-
tainly, to say that a liquor law
passed with such an object as pro-
moting temperance can be main-
tained in respect of a vessel,
although that vessel’s trading is en-
tirely provincial, and entirely with-
in one province; and that you may
not restrict the sale of liquor in
buildings in the province, appears a
distinction very diﬂicult to follow.
It was not necessary for the decision
of this case to contend that the
regulation of trade or commerce
had so wide an effect that every
regulation of trade and commerce,
however local and limited in its
operation and scope, would come
within these words, but that it
would be enough to show a power
in the Dominion Parliament to
regulate any and every trade where
the object and purpose of that
regulation was the peace, order,
and good government of the Do-
minion at large. Now that is the
power which is in the Dominion
Parliament, and it would put all the
decisions on a sound and intelligible
basis. WVhatever limitation you put
upon the regulation of trade and
connnerce, you ought not to limit it
so as to exclude from the power of
the Dominion Parliament any law
relating to ' trade or commerce
which it considers necessary for the
‘peace, order, and good govern-
ment’ of the country. Suppose a
local legislature made a law for a
railway where it passed through a
town, such limitation being limited
to the safety of the town or a part
of it, and yet the general legislation
as to the railway would be left
throughout the whole Dominion to
the Dominion Parliament. One
might put cases in which a matter
might in one respect he a merely
local matter, and which in another
aspect might be a matter of general
GOVERNOR-
GENERAL
Dommon
v. THE FOUR
PRovmcEs.
152
B.N.A. ACT, s. 92 (9).-DIRECT TAXATION. .
GovEaNoR-
G ENERAL
Domino};
1). THE FOUR ,
PROVINCES.
policy and of importance to the
whole country. There may be a
municipal regulation that nobody
shall sell arms without a license
from the local authority. Suppose
the Dominion Government thinks
it so important for the safety of the
country to limit the use and pos—
session of ﬁre arms that it says
nobody shall sell arms without a
license under the hand of the
Governor-General, then if that regu~
lation of the trade in guns was a
regulation for the ‘ peace, order,
and good govermnent’ of the
country, it would come within sec.
91, sub-sec. 2. [Sir Montague
Smith: The key to the decision of
the Supreme Court is that they
think the Dominion have regulated
minutely in a sort of local way a
retail trade] When a reference
is made to the peace, order, and
good government of Canada, as in
Russell 1:. The Queen, what is
pointed at is that the scheme, in-
tention, and purpose of the powers
committed to the Dominion Govern-
ment were the general good govern-
ment, so to speak, of the whole
Dominion, except so far as it had
been exclusively committed to the
provinces. As to the payment of
the oﬂicials, those that are paid are
paid out of the license fund, if
enough, and the residue of the fund
is paid back to the various provinces.
It is not direct taxation under sub-
sec. 2, sec. 92, but even if it were
direct taxation it is for Dominion
purposes, and the Dominion Par-
liament under sub-sec. 3, sec. 91,
can raise money by ‘any mode or
system of taxation.’ If it is com-
petent to enforce this Act, then it
is competent to raise the necessary
money.”
Sir Horace Davey, Q.C., for
Lieutenant-Governors of Ontario,
Quebec, Nova Scotia, and New
Brunswick: The Act of 1883 is
wholly ultra tires. All the en-
umerated matters in sec. 91 are
subject to the words ‘ In relation
to all matters not coming within
the classes of subjects by this Act
assigned exclusively to the legis-
latures of the provinces.’ The
whole section is governed by those
words, and the enumerated articles
in sec. 91 are only an illustration
inserted for greater certainty.
Therefore if the Dominion Par-
liament make regulations for trade
and commerce, they must make
such regulations as will not infringe
upon the exclusive power of legis-
lation over the matters in sec. 92.
Now how are the enumerated sub-
jects in sec. 91 introduced? ‘For
greater certainty,’ (Ste. Butv the
most important words are those
above given, ‘In all matters,’ &c.
[Sir Montague Smith: There is
another proviso which is to be read
with it.] Yes, the last words of
the section (91, sub-sec. 29)—‘ And
any matter coming within any of
the classes of subjects enumerated
in this section shall not be deemed
to come within the class of matters
of a local or private nature com-
prised in the enumeration of the
classes of subjects by this Act
assigned exclusively to the legis-
latures of the provinces.’ That.
means the provinces cannot legis-
late on any of the enumerated
matters, on the pretence that. they
are local. It is also true that the
Dominion Parliament cannot legis-
late on matters which are included
in sec. 92, on the suggestion that
they legislate for the whole of
Canada. If the matter is ex-
clusively assigned to the provincial
legislatures by sec. 92, then the
Dominion Parliament has no juris-
diction to legislate on those matters.
N ow the subjects dealt with in the
Dominion Licensing Act, 1883, have
been decided by this Board to fall
within sec. 92: Hodge r. The
Queen. That decision was that
the Ontario Act—a licensing Act
through the means of local licens-
ing boards invested with the power
of passing regulations and issuing
licenses for the regulation of the
liquor trafﬁc—falls within sub-
secs. 8 and 16, sec. 92. But the
Dominion Act, 1883, is identical in
B.N.A. ACT, 92 (9).---PROV. & RUSSELL’S cAsE.
153
machinery, and the means by which
the regulations are intended to be
'arried out, with the Ontario Act; in
fact, the draughtsman of the Canada
Act must have had before him the
Ontario Act, the only difference
in substance being that the Act of
1883 applies to the whole of
Canada, and the Ontario Act, which
was in question in Hodge v. The
Queen, applies of course only to
the province of Ontario. There-
fore the Dominion Act is ultra
vires, because it is a matter which
comes within the class of subjects
assigned by sec. 92, to the legis-
lature of the province. If once it
is decided that it is a matter con-
nected with municipal institutions
and of a merely local character, you
do not make it Dominion matter
by passing a general Act for the
whole province on those grounds.
Then we do not quarrel with
Russell 1*. The Queen. The de-
cision there was that the prohibition
of the liquor tratﬁc throughout the
Dominion was a matter which was
not exclusively assigned to the pro-
vincial legislatures; that it stood
on exactly the same footing as the
prohibition of the sale of poisons or
against carrying arms in the in-
terest of public safety. But why P
Because the prohibition of the sale
of poison or the prohibition of the
liquor tratlic is not one of the
things exclusively assigned to the
provincial legislatures. [Lord
Monkswell : Then it comes to this,
that the Dominion Government
can, in some cases, override the
proper legislation of the provincial
legislature] Lord Selborne says
that it was pointed out in respect
of the sub-section as to ‘property
and civil rights,’ that in many
cases legislation, for instance bank-
ruptcy legislation, must override
legislation in property and civil
rights. Russell ‘2:. The Queen may
be explained, but certainly it was
not overruled by Hodge v. The
Queen. The former case decided
this, that the prohibition of the sale
of liquor or of poisons throughout
the Dominion was not one of the
matters exclusively assigned to the
provincial legislatures by sec. 92.
There was no question in that case
about the regulation of the liquor
traffic through the machinery or by
means of local licensing bodies,
which in Hodge v. The Queen was
decided to come within municipal
institutions. And the objection to
this Act of 1883 is that under the
guise of passing a general Act for
the whole of Canada it attempts to
legislate by the creation of local or
municipal licensing bodies, giving
them restricted local jurisdiction.
All the Temperance Act of 187 8 did
was to prohibit the sale of liquor
except for sacramental and medical
purposes, and it provided ma-
chinery for carrying that into
eifect. But that is a totally
diiferent class and character of
legislation. In all the cases this
question is asked, Is the character
of the legislation local or not?
Does it purport or does it affect to
create municipal institutions? Is
not the principle of sec. 92 this-—
that as regards all local matters,
police, decency, and order——as re—
gards those matters, each province
is left to legislate for itself. Giv-
ing the full eﬁect to every word in
Russell 1). The Queen, there is
nothing in that case inconsistent
with what was held in Hodge ‘v.
The Queen, that is, that the regu-
lation of the liquor tratﬁc by means
of local licensing bodies, empowered
to pass regulations, come within
the class of subjects referred to as
municipal institutions. This legis-
lation is no novelty in Canada.
Before the Union a large number
of Acts were in force in all the
provinces for this very purpose of
regulating the liquor traffic through
the means of the different muni-
cipal bodies in the diﬁerent pro-
vinces. There was a system of
granting licenses at the time of
passing the B. N. A. Act, and there
are various statutes passed by
different provinces since confede-
ration.
GOVERNOR~
GENERAL
DOMINION
v. THE FOUR
PROVINCES.
154
B.N.A. ACT, s. 92 (9).-—HODGE EXAMINED.
GovERNoR-
GENERAL
DOMINION
v. THE FOUR
PROVINCES.
‘Municipal Institutions’ is not
conﬁned to the creation of munici-
palities, but it extends to the deﬁn-
ing the rights, powers, duties, and
privileges of bodies created for what
is called municipal purposes, that
is to say, the local regulation of
decency, order, and so forth. In
Slavin v. Corporation of Orillia, 36
U. C. Q. B. 159,1). 175, 1 Cartwright
Cases, 688, it was said by Richards,
C.J., that it must be assumed that
the Imperial Legislature in passing
the B. N. A. Act of 1867 intro-
duced the various provisions 011
suggestions of the delegates from
the various provinces ; and the
delegates of the united province of
Canada probably well knew of the
Act of that province, 15 August
1866, respecting the municipal in-
stitutions of Upper Canada, 29 &
30 Vict. c. 51., in which power was
granted to the municipalities in
Upper Canada, under certain con-
ditions, to limit the number of
taverns and to prohibit the license
of shops for the sale of spirituous
liquors in the several municipalities ;
and that when the Imperial Act
uses the very words of the title of
this Act as one of the classes of
subjects on which the provincial
legislature may pass laws, namely,
‘Municipal institutions in the pro-
vince,’ there was no reasonable doubt
that it was intended that the ‘ muni-
cipal institutions’ which were to
be constituted under that authority
were to possess the same powers as
those which were then in existence,
under the same name, in the province.
Their being followed by sub-sec. 9
did not show an intention to limit
the exercise of the powers which
municipal institutions ought to
have, and which they had, of limit-
ing the sale by retail in inns, or pro-
hibiting the sale in shops, but rather
to remove all doubts as to their right
to raise a revenue, either for provin-
cial, local, or municipal purposes, by
the issuing of these and other licen-
ses : The Queen '0. Frawley, 46 U.
C. Q. B. 153; 7 O. A. R. 246
(Hodge’s case), 2 Caitwright, 5'7 6.
The appellant’s argument is that
there is no power under sub-sec. 9 to
grant licenses except for raising a
revenue. But Hodge ‘r. The Queen
decided that a provincial legislature
was competent to create licensing
bodies for the purpose of licensing
persons to carry on the liquor
tratﬁc as a matter of police and
municipal regulation, and that sub-
sec. 9 is cumulative and not re-
strictive. It was to remove doubts.
Under sub-sec. 2, sec. 92, the pro-
vince has the power of direct
taxation within the provinces in
order to raise a revenue, and it
might have been suggested that
raising money by means of licenses
was not direct taxation but indirect
taxation, and it therefore gives
them the express power of granting
licenses for the purpose of raising a
revenue as an express power, not
restrictive so as to prohibit them
from granting licenses except for
the purpose of raising revenue, but
really cumulative, and to remove
doubts whether they might grant
licenses for that purpose, as being
a direct taxation. Indirect taxation
being conﬁned to the Dominion.
[Lord Monkswell: If the section
is taken by itself, it appears very
ditﬁcult to say that it would ex-
clude the power of imposing some
condition—such as, if the owner of
a public house keeps his house
open beyond 12 he shall not have a
license] Yes. Now this Act of
1883 does interfere with that which
must be admitted to be within the
exclusive jurisdiction of the pro-
vincial legislature, the issue of
licenses in order to raise a revenue.
The appellant founded on the clause
of this 1883 Act which saved the
payment of any duty ﬁxed by the
provincial legislature, and he seemed
to think that prevented the Act
interfering with their exclusive
power under sec. 9. But the
license issued under this Act of
1883 licensed a person to sell
liquor. Is not that inconsistent
with the power conferred on the
provincial legislature of granting
B.N.A. ACT, 92 (9).—-VESSEL LICENSES.
155
licenses with a view to raising
revenues? The words of sub-sec. 9,
sec. 92, gives the exclusive power
of taxation by means of licenses
for provincial, local, or municipal
purposes, and this Act of 1883 is a
taxation of Her Majesty’s subjects
within the province for municipal
purposes, because the balance, after
payment of the inspector’s salary
and the expenses of the commis-
sioners, goes into the municipal
treasury. The Dominion actually
ﬁxes the taxation to be paid by
persons taking out licenses, &c., for
the beneﬁt of the municipality; and
that is a most clear infringement of
sub-sec. 9, sec. 92. The regulation
of trade and commerce cannot be
taken in the wide, extended, and un-
limited sense the appellants desire
to apply to it. The sec. 91 itself
shows that cannot be so, for in sub-
sec. 15, relating to ‘ banking,’ &c.,
if regulation of trade had the wide
meaning the appellants apply to it,
it was unnecessary to specify ‘ bank-
ing, incorporation of banks, and
issue of paper money.’ We take
it the words ‘regulation of trade’
were used, as was said in Citi-
zens’ Insurance Co. v. Parsons
[see sub-sec. 13, sec. 92], as
meaning general regulations as
applicable to trade generally of a
political character, that is, for regu-
lating trade and commerce between
the Dominion and foreign countries,
including Great Britain, or between
the provinces themselves. But they
do not include minute regulations
affecting the terms and conditions
on which persons carrying on par-
ticular trades are allowed to do so in
particular localities. The udgment
of the Court below should be aiﬁrm-
ed. Also that judgment as regards
the wholesale and vessel licenses
should be reversed. [Lord Hals-
bury, L.C.z You and Sir Farrel‘
Herschell both agree that that con-
tention is untenable] My learned
friend has stated my argument
more forcibly than I could myself.
I agree that no logical distinction
whatever can be drawn between
wholesale and retail licenses, that
there is no logical distinction be-
tween regulating the power of a
shopkeeper to sell a dozen bottles
at a time and regulating the power
of a tavern keeper to sell one bottle
at a time. [Sir Montague Smith:
Whether he sells one bottle or
twelve he is selling by retail] Yes.
It is a different kind of retail trade.
The Dominion cannot arrogate to
itself the power to give itself juris-
diction by giving its own deﬁnition
of ‘ wholesale.’ You must look
at the real substance of the matter,
and if there is no sound distinction
that can be drawn between whole—
sale licenses and shop and tavern
licenses, then, if the Act is ultra
Ui7'68 as regards shop and tavern
licenses, it is equally ultra vires as
regards the wholesale licenses,
which are really another branch of
the retail trade. So also with the
vessel license. A vessel is no more
than a ﬂoating tavern for this purpose.
The objection to this Act is
that it attempts to regulate this
trade through what I call muni-
cipal institutions, and that the re-
gulation and the legislation with
reference to wholesale licenses is
exactly the same as that with
reference to shop or tavern licenses.
[Sir Barnes Peacock: The N. B.
A. Act, 1867, sec. 91, says, ‘not_
withstanding anything in this Act,’
that is, notwithstanding anything
in sec. 92, ‘the exclusive legis~
lative authority of the Parliament
of Canada extends to all matters
coming within the class of subjects
hereinafter enumerated,’ and those
are the classes enumerated in sec.
91. Now one of the classes is the
criminal law. The Parliament says,
in sec. 83 of the Act of 1883, that
‘ no person shall sell by wholesale or
by retail any liquor without having
ﬁrst obtained a license under this
Act authorizing him to do so.’
Then by sec. 88 the punishment
for offences against the sec. 66 is
provided. Then sec. 89, ‘If any
purchaser of any liquor from a
person who is not licensed to sell
GovERNoR-
GENERAL
DommoN
v. THE FOUR
Paovmcns.
156
B.N.A. ACT, s. 92 (9).—LlQUOR r. DYNAMITE.
GOVERNOR-
GENERAL
DOMINION
'v. THE Form
PROVINCES.
the same to be drunk on the pre-
mises, drinks, or causes or permits
any other person to drink, such
liquor on the premises where the
same is sold, the seller of such
liquor shall, if it appear that such
drinking was with his privity or
consent, be subject to the following
penalties, that is to say,—’ Then
for the ﬁrst oﬁence so and so, and
for the third oifence imprisonment.
Now suppose in sec. 83 the legis-
lature had said, no person shall sell
by wholesale or by retail any
liquors without having ﬁrst ob-
tained a license under this Act
authorizing him so to do, and if
any person shall offend against this
Act he shall be guilty of felony
and forfeit all his goods and
chattels found on the premises.
Would not that have been within
the power of the Dominion in
passing a criminal Act? That is
my diﬂiculty, that you could not
say that the Parliament of Canada
could not create a criminal offence
for selling liquors without a license
in the same way as they might
create a criminal oﬁence by carry-
ing arms without a license, or
manufacturing dynamite without a
license.] This is not an Act to
amend the criminal law. The
clauses referred to are ancillary
clauses for the purpose of carrying
out that which is the main purpose
of the Act. And if the main purpose
of the Act, the regulation of the
liquor tratﬁc by means of local
licensing boards, is not within the
jurisdiction of the Dominion, then
the ancillary sections would fall
with the Act. Then the imposing
punishment by ﬁne, penalty, or
imprisonment are within the ex-
clusive urisdiction of the provincial
parliament. Undoubtedly the Par-
liament of Canada has jurisdiction
over the criminal law, sub-sec. 27,
sec. 91, but on the other hand, sub-
sec. 15, sec. 92, must not be over»
looked, ‘ The imposition of punish-
ment by ﬁne, penalty, or imprison-
ment.’ [Sir Barnes Peacock: Not
forfeiture of all spirits that might be
found on the premises] I am not
so sure of that. One word as to
Russell ‘v. The Queen. In that case
the questionwas the Temperance Act.
That Act did not purport to regu-
late the traﬂic, all it did was to pro-
hibit the traﬁic. There was no ques-
tion there of regulating the liquor
traﬂic by means of licensing bodies.
[Sir Montague Smith: It seems
to be this, that the Temperance Act
rendered the sale of liquor unlawful,
speaking broadly. This Act as-
sumes the sale of liquors to be law-
ful, and the question is whether the
power to license the sale resides in
the Dominion] Or in other words,
to provide municipal institutions
for the purpose of regulating it.
[Sir Barnes Peacock: The diffi-
culty I feel is this, whether they
may not prohibit conditionally, and
if they prohibit conditionally,
whether they may not provide a
means for performing that con-
dition] It is too late to argue
that after Hodge 'v. The Queen.
\Ve do not argue, on the one hand,
that the provincial legislatures have
exclusive jurisdiction over temper-
ance legislation, nor, on the other
hand, is it competent, after Hodge v.
The Queen, to argue the Dominion
Parliament have exclusive legisla-
tion over temperance.
Mr. Haldane followed.
Sir Farrer Herschell, Q.C., re-
plied. [Lord Halsbury, L.C.z
“‘Marriage and Divorce,’ sec. 91,
and ‘ Solemnization of h’1arriage,’
sec. 92. Would you say, with the ob-
ject of promoting morality and good
government, the Dominion Parlia-
ment would have a right to pre-
scribe that the solemnization of
marriage should not take place
except between 8 and 12?] Those
sections give me the greatest diﬁi-
culty in explaining what are the
limitations upon the provincial
power, because it is difficult to see
what is included in ‘ Solemnization
of Marriage.’ It may merely mean
what is the form of solen'mization.
[Sir Barnes Peacock: It might
require a priest in the case, or
B.N.A. ACT, 92 (9).——HODGE AND RUSSELL.
157
might be like the old Scottish law,
a declaration] It would come
within the ‘ Soleinnization ’ whether
a religious ceremony was necessary,
or a mere civil marriage. There is
nothing to prevent the Dominion
Parliament, for Dominion purposes,
requiring everybody to take out a
license as a means of taxation, sec
91, sub-sec. 3. The Temperance
Act. of Canada was not an Act of
total prohibition, it was an Act
regulating. Hodge '0 The Queen
may be reconciled in this way
that a provincial Act may deal with
a matter of that sort, municipally
and locally, without preventing at
any time the Dominion Parliament
dealing with the same subject-
matter for general purposes in the
Dominion. A thing may be at a
given time a local matter, which
may be dealt with locally within
the perfect powers of the provinces,
which nevertheless may have to be
dealt with by the Dominion as a
whole for the whole Dominion at
some other time. As to regulation
of trade, what was left to the cen-
tral legislature in the United
States—which Constitution was no
doubt considered in drawing up the
Federal Constitution—is ‘ To regu-
late commerce with foreign nations
and among foreign states, and with
native tribes,’ a much more limited
power than here. The limitation
of these words here must not be
pressed too far, because these are
only subordinate enumerations for
greater certainty, but not to exclude
the generality of the words which
go before, and when they are sim-
ply specifying things for greater
certainty some of those speciﬁca-
tions may overlap. ‘Vhen once you
show that any trade is regulated
throughout the whole Dominion as
insurance business was, and that is
done not for local purposes but for
general purposes of the Dominion,
then you have shown it is for the
peace and good government of
Canada in relation to the regulation
of trade And that would apply
to the liquor trade as much to

any other. To say the licensing
boards are municipal institutions is
begging the whole question. They
are no more that than inspectors
under the Adulteration Act. If it had
been committed to one person,
would it have been a municipal in-
stitution? Is the inspector of
weights and measures a municipal
institution P No one suggests the
adulteration clauses are not good.
[Sir Montague Smith: In Russell r.
The Queen sec. 8 was not argued]
So it was said, but I have a short-
hand note of the argument of that
case which shows it was most dis
tinctly urged before this Board.
[Lord Halsbury, L.C.: There are
some parts of the statute you
would insist on as int'ra wires, not-
withstanding others might be
ultra wire-s‘. Would you hand in
a list of those sections P] Yes.
There are ﬁrst the sections which
substitute the licensing board for
the Lieutenant-Governors, who
were to give licenses under the
Temperance Act, 1878. That the
court below has held to be valid. If
valid it creates licensing boards,
and some other sections would
depend on that. One other mat-
ter—undoubtedly powers were ex-
ercised by some of the municipali-
ties and some of the provinces
before 1867, which is beyond dis-
pute, are now matters coming
within one or other of the subjects
distinctly given to the Dominion
Parliament. Some dealt with
weights and measures, which would
not be competent to them now.
Therefore municipal institutions
cannot be taken to mean all those
things municipal institutions had
done or could do before 1867.”
[He also cited the U. S. case as
to whether “Commerce” covered
“Navigation,”; see Story, Const.
IT. (4 ed), s. 1065; Gibbons Iv.
Ogden, 22 S. C. U. S. (9 Wheat),
p. 189; Brown 1*. Maryland, 25 S.
C. U. S. (12 Wheat), p. 446.]
Lord Halsbury, L.C.: “Their
Lordships will consider the matter.
There will be no judgment deli-
GOVERNOR-
GENERAL
DOMINION
v. THE FOUR
PROVINCES.
158
B.N.A. ACT, s. 92 (9).-—SEVERN’S CASE UPSET.
GovERNoR-
GENERAL
DOMINION
v. THE FoUR
PRovINcEs.
REG. 1’. HALLI-
DAY.
vered here, but their Lordships will
report to Her Majesty.”
12 Dec. 1885, the Acts 1883—4
declared ultra wires.
“ At the Court at Windsor Castle,
the 12th day of December 1885.
Present: The Queen’s Most Excel-
lent Majesty, Lord President, Lord
George Hamilton, Mr. Plunket.
“ Whereas there was this day
read at the Board a report from the
Judicial Committee of the Privy
Council dated the 21st of Novem-
ber last past, in the words follow-
ing, viz.:
“ ‘Your Majesty having been
pleased by your Order in Council
of the 19th May last past to refer
unto this Committee the humble
petition of the Most Honourable
Henry Charles Keith Petty Fitz-
maurice, Marquis of Lansdowne,
Governor-General of the Dominion
of Canada, humbly praying that a
special case, and the decision of the
Supreme Court of Canada upon the
same, with reference to the compe-
tence of the Canadian Parliament to
pass the Acts 46 Vict. c. 30. and
47 Vict. c. 32., in whole or in part,
may be referred by Your Majesty
to this Committee to report thereon,
the Lords of the Committee, in
obedience to Your Majesty’s special
order of reference, have taken the
said humble petition into considera-
tion, and having heard counsel
thereupon for the Dominion of
Canada, and likewise for the Lieu-
tenant-Governors of the respective
provinces of Ontaria, Quebec, Nova
Scotia, and New Brunswick, and
having been attended by the agents
for the province of British Colum-
bia, their Lordships do this day agree
humbly to report to Your esty as
their opinion, in reply to the two
questions which have been referred
to them by Your Majesty, that the
Liquor License Act, 1883, and the
Act of 1884 amending the same,
are not within the legislative au-
thority of the Parliament of Can-
ada. The provisions relating to
adulteration, if separated in their
operation from the rest of the Acts,
would be within the authority of
the Parliament, but as, in their
Lordships’ opinion, they cannot be
so separated, their Lordships are
not prepared to report to Your
Majesty that any part of these Acts
is within such authority.’
“ Her Majesty having taken the
said report into consideration, was
pleased, by and with the advice of
her Privy Council, to approve
thereof and to order accordingly.
Whereof the Governor-General of
the Dominion of Canada, the Com-
mander-in-Chief, and the Lieu-
tenant- S‘rovernors of the respective
provinces of the Dominion for the
time being, and all other persons
whom it may concern, are to take
notice and govern themselves ac-
cordingly.
“ C. L. PEEL.”
A brewer allowed beer to be
consumed in a cellar attached to
the brewery. He had a Dominion
license and also a provincial license ;
by the latter he was not to sell any
liquor on the premises. Thus :—
REG. r. HALLIDAY, Dec. 22,
1893, 21 O. A. It. 42, was an
appeal by the Attorney-General for
Ontario from the judgment of the
County Court of Wellington. Sec.
61 of the Ontario License Act,
R. S. O. c. 194., is identical with
sec. 7 6 of the Liquor License Act
of Canada, 1883 [4G Vict. c. 30.].
Boyd, C., said: “That whole
Act of the Dominion, assuming to
regulate the liquor traﬁ‘ic, was de-
clared ultra. Tires by the Privy
Council upon a statutory case sub-
mitted [see above]. It follows that
the regulation of the liquor traffic
is a matter of provincial conse-
quence. To this effect both Ritchie,
C.J., and Fournier, J., expressed
themselves, that since Severn 7;.
Reg, 2 S. C. R. 70, the course
of decision in the Privy Council
has removed any doubt as to
the power of provincial legis-
latures to pass laws regulating
the sale of liquors (whether whole-
B.N.A. AC", S. 92 (9).--BREWERS’ LICENSE.
159
sale or retail), in Molson w. Lambe,
15 S. C. R. 253. This was a
brewer’s case, the question being as
to the capacity of the Quebec Legis—
ture to require a license to be
taken out by brewers duly licensed
to manufacture by the Dominion.
Ramsay, J ., in the court below,
said: ‘ This was to be defended
under the B. N. A. Act, sec. 92, sub-
sec. 9, and amounted to an impost
by way of license for the purpose
of raising revenue on the ordinary
trade of a brewer. He referred to
Severn '0. Reg. as an isolated and
compromised judgment of a divided
court, and the majority of the court
held, as did the Supreme Court,
that the Act was constitutional.’
Strong, J., now CJ. of SC, took
substantially the same view in Sev-
ern 1:. Reg, and I think the course
of decision has been to displace the
authority of that case and to authen-
ticate the opinions of Ritchie and
Strong, JJ. In 1889 the same
question as to the eﬁect of Severn
'1’. Reg. came before the full court
of Nova Scotia, and the majority of
the court held (Reg. at‘. McDougall,
15 April 1889, 22 N. S. 462) that
the Severn case was practically
overruled. No mention was made
by the maritime judges of the prior
case of Molson ‘v. Lambe, March
15, 1888, 15 S. C. It. 253. So
the Court of Q. B. in Quebec, in
appeal, held in 1890 that the local
legislature might authorize munici-
palities to levy a tax for local pur-
poses on wholesale liquor dealers.
McManamy 'v. Sherbrooke, 6 Mon.
Q. B. 409. R. S. O. c. 194.
s. 51 requires brewers, distillers,
&c., to obtain a license to sell by
wholesale, treating them, though
manufacturers, as also wholesale
dealers. To this no valid objec-
tion can now be raised, it appears
to me, because of its being an inter-
ference with trade. In one respect
it may be so, but in another respect
it is a means of raising revenue for
local and provincial purposes, and
of police regulation for the preser-
vation of order. The legislation is
justiﬁed, under B. N. A. Act., sec.
92, sub-secs. 8, 9. The Liquor
License Act is properly classiﬁed
in the statutes under the head of
‘ municipal matters,’ and the whole
object of the enactment in question
is to exercise supervision over the
sale and consumption of spirituous
and fermented liquors, imposing
license fees for the purpose of de-
fraying the expense of such local
government, with a surplus for
other municipal and provincial pur-
poses [sec 45].”
Osler, J.A., said: “The ap-
peal derives any importance solely
from the objection, ﬁrst raised
by the respondent in this Court,
that sees. 51 and 61 of the
Liquor License Act are ultra 'z'ires
the provincial legislature, the de—
fendant being a brewer, and the
holder of a license to manufacture
beer, &-c., from the Dominion Go—
vernment. He relies on Severn '2’.
Reg, and certainly if we could now
act on that case without regard to
more recent decisions, we should
have no diﬂiculty in upholding the
judgment by which the conviction
has been quashed. It has not been,
in terms, overruled by the Judicial
Committee of the Privy Council, and
it may be said that, although it could
be explained or distinguished, it
could not be overruled by the court
which decided it. Nevertheless, the
grounds on which it rested appear
to have been considerably weakened,
if not entirely demolished, as the
Federal Act has become more ex-
tensively discussed and, perhaps,
better understood. These grounds
were : (1) That the imposition of a
license by the local government
upon a person carrying on the trade
of a. brewer and the manufacture of
beer, and who already held an
excise license from the Dominion
Government, was an interference
with the exclusive powers of Parlia-
ment to the regulation of trade
and commerce under sec. 91, clause
2, of the B. N. A. Act, and could
not be regarded merely as the
exercise of a police power; (2)
Res. v. HALLI-
DAY.
160
B.N.A. ACT, s. 92 (9).—U. S. LICENSE CASES.
3116- ‘0- HALIJ- That the right conferred upon the
DAY .
THURLOW w.
MAssAcnU-
sE'r'rs, 820.
local legislatures by sec. 92, clause
9, to deal exclusively with shop,
tavern, auctioneer, and other
licenses, did not extend to licenses
to brewers, or other licenses which
were not of a local or municipal
character; and (3),——which is, per-
haps, included in or covered by the
last ground—that such licenses were
not authorized by sec. 92, clause 2,
as an exercise of a power of direct
taxation within the province in
order to the raising of a revenue
for provincial purposes—in short,
that they were indirect taxation.
The ﬁrst ground seems no longer
sustainable in the face of Hodge 1*.
Reg, 9 App. Cas. 117 [see above],
which aﬁirms the power of the
local legislatures to regulate the
sale and disposal of intoxicating
liquors, and the later case of Bank
of Toronto 2'. Lambe, July 9,
1887, 12 App. Cas. 575 [see ante,
p. 113]; which is also directly
opposed to the view that a local
license fee, whether upon brewers
or upon bankers, would be an
interference with trade and com-
merce. As to the other grounds,
the last~mentioned case afﬁrms the
power of the legislature to impose
a direct tax upon a bank or other
commercial corporation, carrying
on business within the province,
and inferentially, therefore, that a
license fee imposed upon a person
carrying on the trade of a brewer
and wholesale vendor of ale is not
indirect taxation, but comes within
the 2nd clause of the 92nd sec-
tion of the Act, and is intra wires
provincial legislation. Further,
this view of the effect of these de-
cisions is taken by the Supreme
Court itself in Molson w. Lambe,
15 S. C. R. 253; and no one can
read the report of the argument
and discussion before the Judicial
Committee upon the question of
the validity of the Dominion Li-
censing Acts, 1883—4, which were
ultimately declared by that body to
be ultra wires the Dominion Par-
liament, without seeing that the
legitimate consequence of their de-
cision is to aﬁirm the power of the
provincial authority to impose a
license or tax upon a brewer or
manufacturer of beer, and to regu
late the mode of carrying on the
business or trade. I think, there-
fore, that the sections in question
are intra wires.” Hagarty, C.J.O.,
and MacLennan, J.A., concurred.
In the license cases in the United
States, THURLOW w. MASSACHU-
sE'rTs, 820., Jan. 1847, 46 S. C. U. S.
(5 How.) 586, Taney, C.J., said,
dealing with the law of New
Hampshire: “The law of New
Hampshire is in my judgment. a
valid one. For although the gin
sold was an import from another
State, and Congress have clearly
the power to regulate such impor-
tations, under the grant of power
to regulate commerce among the
several States, yet, as Congress has
made no regulation on the subject,
the traffic in the article may be
lawfully regulated by the State as
soon as it is landed in its territory,
and a tax imposed upon it, or a
license required, or the sale alto-
gether prohibited, according to the
policy which the State may sup-
pose to be its interest or duty to
pursue.”
REG. w. JUsTmEs or Knvo’s
COUNTY, Feb. 1875, 15 S. C. N. B.
(2 Pugs. Rep.) 535.
The New Brunswick Act, 36
Vict. c. 10., enacted that “the
general session of the peace for the
several counties in this province
are hereby empowered to grant
wholesale and tavern licenses to
such and so many persons of good
character as they in their discre-
tion shall think proper, to sell
liquor by wholesale, or keep a
tavern within their respective coun-
ties, demanding and receiving for
every such license a sum not ex-
ceeding $100, nor less than 3520.”
One McManus tendered the
money for a license and was
refused, the Justices of King’s
'BNA. ACT, S. 92 (9).-LOCAL OPTION ACT.
161
County absolutely declining to grant
a license to any person. Ritchie,
C.J., Allen, Weldon, Fisher, and
VVetmore, J J ., granted a mandamus,
holding the provisions of the Act
were ultra vires the powers of the
provincial legislature. [See Note,
sub-sec. 2, sec. 91.]
In REG. '0. PRITTIE, 1878, 42
U. C. Q. B. 612, it was held to be
ultra wires of the Ontario Legisla-
ture to make the provisions of the
Ontario Licensing Acts have full
force and effect in a municipality
where the Canadian Temperance
Act of 1864 was also in force,
the eﬁect being to make an oﬁence
against the one an offence against
the other ; the reason given
against the local Act having such
an eﬁect being that that would be
direct legislation on criminal law
and procedure in a criminal matter,
which was not in any way neces-
sary for the due exercise of
the provincial legislature’s own
proper power.
See Sulte v. Corporation of City
of Three Rivers, Jan. 12, 1883,
11 S. C. R. 25, in Q. B. Quebec,
5 Legal News, 331, which follow-
ed Hodge "u. The Queen, and
decided that a bye-law passed by
the City of Three Rivers, imposing
a duty of $200 on issuing a license
to sell intoxicating liquors, was good.
That case was relied on in Grifﬁth
c. Rioux, June 23, 1883, 6 Legal
News, 211. See also Reg. 0.
Taylor, 1875, 36 U. P. Q. B. 183,
noted ante, p. 55. In Cooey *0.
Municipality of County of Brome,
20 July 1877, 21 L. C. J. 182,
the Temperance Act of 1864 of Up-
per and Lower Canada was upheld.
In POULIN r. CORPORATION OF
QUEBEO, Feb. 19, 1884, 9. S. C. R.
185, from Q. B. Quebec, Ritchie,
C.J., following out his opinion in
Reg. 11. Justices of King’s County,
15 S. C. N. B. (2 Pugs.) 535,
held the Quebec Act, 42 8c 43
Vict. c. 4., which ordered the
closing of saloons or taverns on
S 2340.
Sunday and at special times, as
valid ; it being simply a local police
regulation and incident to the local
legislature’s power to legislate in
relation to municipal institutions.
Meredith, C.J., in BLOUIN 'v.
CORPORATION OF QUEBEC, 18 Dec.
1880, 7 Q. L. B’. 18 (and his judg-
ment was sustained on appeal, 9 S.
C. It. 185), having cited Frederic-
ton 'c. The Queen and like cases,
said: “ The foregoing citations are
given as showing that although the
Parliament of Canada, under its
power to regulate trade and com-
merce, alone has the power to
prohibit the trade in intoxicating
liquors, yet that the provincial
legislatures, under the powers given
to them, may for the preservation
of good order in the municipalities
specially under their control (sub-
sec. 8), make reasonable police
regulations, although such regula-
tions to some extent aﬁect the
sale of spirituous liquors, provided
they do not improperly interfere
with trade and commerce.” And
Ramsay, J ., concurred.
In PIGEON r. CITY OF MON-
TREAL, from Q. B. Quebec, 33
L. C. J. 221; in S. C. March 10,
1889, 17 S. C. It. 495, there was
a proceeding in prohibition to
restrain the Becorder’s Court
from proceeding to hear and
determine an action instituted
by the City of Montreal against
Pigeon to recover a ﬁne imposed
for an infraction of a bye-law
of the city, which required all
persons exposing meat for sale in
any private stall or shop outside of
the public meat markets to take
out a license, for which license the
sum of $200 was to be paid. The
Quebec Act, 37 Vict. c. 51. s. 123,
sub-sec. 31, authorized the city of
Montreal to pass bye-laws and to
impose a duty on the sale be-
yond the limits of the market of,
inter alia, meat. It was held this
provincial Act and bye -law
were valid. [See Note, sub-sec. 2,
L
POULIN r. Coa-
PORATION OF
UEBEC.
BLOUIN v.
CORPORATION
or QUEBEC.
PIGEON v. CITY
or MONTREAL.
162
B.N.A. ACT, 8. 92 (9).-.-WHISKY PROHIBITION.
DANAIIER v.
PETERS.
Case submitted
by Governor-
General in
Council.
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. or
TIIE DOMINION,
82c.
Prohibitory
Liquor Laws.
sec. 91.] Suppose the provincial
legislature enacted that the sale of
liquor also should only be carried
on in certain speciﬁed spots in the
city, would such an Act or bye-law
be valid?
In DANAHER v. PETERS, and
O’REGAN 'v. PETERS, June 14,
1889, 17 S. C. R. 44, one of the
questions was, Whether the New
Brunswick Liquor License Act,
1887, 50 Vict. (N. B.) c. 4. s. 10,
which provided that applications for
licenses under the Act must be en-
dorsed by the certiﬁcate of one-third
of the ratepayers of the district for
which the license is asked, was valid P
It was contended this was a prohibi—
tory measure, inasmuch as the rate-
payers were able to prevent the
carrying on of the trade by refusing
to sign the certiﬁcate. The case
came to the Dominion S. C. from
S. C. N. B., which refused a writ
of prohibition restraining the en-
forcement of a conviction under the
Act. The S. C. of the Dominion
[Strong, Fournier, Taschereau, and
Patterson, JJ held that the Act
was not ultra vz'res, [See Note,
ante, sub-sec. 2.]
The Minister of Justice, 5 Jan.
1875, doubted whether it was with-
in the competency of a provincial
legislature to pass a law which
absolutely prohibits the sale of
liquor, as being an interference
with the parliamentary power of
Canada to legislate in respect to
the regulation of trade and com-
merce. Prov. Leg, 1886, 604.
CAsE SUBMITTED BY GOVER-
NOR-GENERAL IN COUNCIL—ATT-
GEN. 0F ONTARIO 'v. ATT.-GEN.
or THE DOMINION AND THE DIS-
TILLERs’ AND BREWERS’ ASSOCIA-
TION, which was decided by the
Supreme Court, 15 Jan. 1895, and
has been appealed to Her Majesty’s
Privy Council in England, raised
the important question of provin-
cial jurisdiction over the liquor
laws of the province.
The 18th section of the Ontario
Local Option Act, 1890, 53 Vict.
c. 56., was as follows :—
“ Whereas the following pro-
vision of this section was, at the
date of confederation, in force as
a part of the Consolidated Muni-
cipal Act, 29 & 30 Vict. c. 51.
s. 249, sub~sec. 9, and was after-
wards re-enacted as sub-sec. 7 of
sec. 6 of 32 Vict. c. 32., being the
Tavern and Shop License Act of
1868, but was afterwards omitted
in subsequent consolidations of the
Municipal and the Liquor License
Acts, similar provisions as to local
prohibition being contained in The
Temperance Act of 1864, 27 8b 28
Vict. c. 18.; and the said last-men-
tioned Act having been repealed in
municipalities where not in force
by The Canada Temperance Act, it
is expedient that municipalities
should have the powers by them
formerly possessed; it is hereby en-
acted as follows:——The council of
every township, city, town and in-
corporated village may pass bye-laws
for prohibiting the sale by retail
of spirituous, fermented or other
manufactured liquors, in any tavern,
inn or other house or place of
public entertainment, and for pro-
hibiting altogether the sale thereof
in shops and places other than
houses of public entertainment:
Provided that the bye-law, before
the ﬁnal passing thereof, has been
duly approved of by the electors of
the municipality in the manner pro-
vided by the sections in that behalf
of the Municipal Act: Provided
further that nothing in this section
contained shall be construed into
an exercise of jurisdiction by the
legislature of the province of On-
tario beyond the revival of pro-
visions of law which were in force
at the date of the passing of The
B. N. A. Act, and which the sub-
sequent legislation of this province
purported to repea .” The amend-
ing Act of 1891, 54 Vict. (Ont.)
c. 46., was passed to put it be-
yond doubt that the Act of 1890
was intended to prohibit the sale
by retail only, as was the case
, BINAJAGT, $592 (9).—WHOLESALE ‘AND RETAIL. 163
under the 'Act of 1866 [29 & 3O
Vict. c. 51. s. 252]. The cor-
responding provisions for Lower
Canada, above given, were sub-
stantially re-enacted in the Quebec
Municipal Code, art. 571. The va-
hibit sales subject to the limits ATT-‘GEN- 01“
provided by the several sub-sections ggi‘ilggjw
of the 99th section of “ The Canada THE'Dm‘H'NmN
'I’emperance Act,” or any of them, &C_ '
R C. S. . Prohibitory
(7) Had the Ontario Legislature Liquor Laws,
lidity of these enactments has been
upheld by unanimous judgments
of the Court of Appeal of Ontario.
See In re Local Option Act before
Hagarty, C.J., and Burton and Mac-
lennan, JJ.A., Sept. 23, 1891, 18
O. A. R. 5'72; and upheld in Que-
bec, in Corporation of Huntingdon
v. Moir, March 21, 1891, 7 Mon.
Q. B. 281, by Dorion, C.J., Baby,
Bossé, Doherty, and Cimon, JJ.,
reversing Bélanger, J.
On 26 Oct. 1893, the following
questions were referred by the
Governor-General in Council to
the S. C. under the R. S. C. c. 135.,
Supreme and Exchequer Courts
Act, as amended by sec. 4 [see past,
sec. 101] of 54 & 55 Vict. c. 25 :—
(1) Has a provincial legislature
jurisdiction to prohibit the sale with-
intheprovinceofspirituous,ferment-
ed, or other intoxicating liquors?
(2) Or has the legislature such
jurisdiction regarding such portions
of the province as to which the
Canada Temperance Act is not in
operation 9
(3) Has a provincial legislature
jurisdiction to prohibit the manu-
facture of such liquors within the
province P
(4) Has a provincial legislature
jurisdiction to prohibit the impor-
tation of such liquors into the pro-
vince ?
(5) If a provincial legislature has
not jurisdiction to prohibit the sale
of such liquors irrespective of
quantity, has such legislature juris-
diction to prohibit the sale, by retail,
according to the deﬁnition of a sale
by retail either in statutes in force in
the province at the time of the
confederation, or any other deﬁn-
ition thereof?
(6) If a provincial legislature
has a limited jurisdiction only as
regards the prohibition of sales, has
the legislature urisdiction to pro-
jurisdiction to enact the 18th section
of the 53 Vict. (Ont) c. 56., in-
tituled “An Act to improve the
Liquor License Acts,” as said sec~
tion is explained by the 54 Vict.
(Ont) c. 46., intituled “An Act
respecting local option in the matter
of liquor selling ” P
The case was argued before Sir
Henry Strong, C.J., Fournier,
Gwynne, Sedgewick, and King, JJ .
The three latter answered all the
questions in the negative. The Chief
Justice and Fournier, J., dissented
from that view, being of opinion
the questions should be answered
in the aﬁirmative, with the excep-
tions of questions 3 and 4, which
they considered should be answered
in the negative. The case was
heard on 1, 2, 4 May 1894.
The Att.-Gen. for Ontario sub-
mitted the ﬁrst four questions
should be answered in the aﬁirm-
ative. Cited, to show could pro~
hibit before confederation, C. L. C., 1861, c. 24. 26; as to
Three Rivers, 2O Vict. c. 129.
3'7; as to Upper Canada, 22
Vict. c. 99. s. 245, sub-s. 6; C. S.
29 8: 3O Vict. c. 51. s. 249; as to
U. C., 1859, c. 54., s. 246, sub-s. 6;
Nova Scotia, 21 Vict. c. 47., and
R. S. N. S. 3 Series, 0. 19.; as to
“municipal resolutions,” Quebec
Resolutions, No.43; Lepine v. Lau-
rent, 17 Que. L. R. 226; 14 Legal News, 369, where Lynch, J.,
upheld the right of the town of
Magog to prohibit the sale by
wholesale as well as retail under a
Quebec statute. And the cases
given above.
The Dominion counsel answered
to the 1st and 2nd questions, by
retail, in the aﬂirmative; to the 3rd
and 4th in the negative; and to the
5th, 6th, and 7th in the aﬂirmative.
Att.-Gen. for Manitoba agreed
with Att.-Gen. for Ontario.
L2
164 B.N.A. ACT, S. 92 (9).-DEFINITION OF WHOLESALE. .
ATE-GEN. or
ONTARIO w.
ATT.-GEN. OF
THE DOMINION
&o.
Prohibitory
Liquor Laws.
The Att.-Gen. for Quebec, to
questions 1 and 5, answered that
provincial legislatures have no juris-
diction to totally prohibit the sale
within the province of spirituous,
fermented, or other intoxicating
liquors, as this would be inter-
fering with the regulation of “ trade
and commerce,” over which the
Parliament alone has jurisdiction.
But under the exclusive legislative
authority given to the provincial
legislatures with regard to “ munici-
pal institutions,” and to “matters of
a merely local or private nature
within the province” [sub-secs. 8
and 16, sec. 92], provincial legisla-
tures can confer on municipal cor-
porations power to pass bye-laws
prohibiting the sale of spirituous
liquor by retail in shops and places
of public entertainment, and limiting
the number of tavern licenses with-
in the province. To the 2nd (ex-
cepting as above), 3rd, 4th, and 6th
questions. in the negative.
The Brewers’ and Distillers’ As-
sociation, that a negative answer
ought to be given to all the questions.
After the decision of In re the
Local Option Act, 18 O. A. R. 572,
the same question was raised in
Huson w. South Norwich. It in-
volved the validity of a bye-law
prohibiting the retail sale of liquor
within the township under the au-
thority of the same Ontario Local
Option Act. Hagarty, C.J., Bur-
ton, Osler, and Maclennan, May
20, 1892, 19 O. A. R. 343, held the
bye-law valid. Huson, represent-
ing the liquor dealers, appealed to
the S. C., and on 15 Jan. 1895,
Sir Henry Strong, C.J., Fournier,
and Taschereau, J J . (Gwynne and
Sedgewick, J J ., dissenting), held
the Act valid. As will be seen be-
low, in The Att.-Gen. of Ontario w.
The Att. -Gen. for the Dominion, the
Ontario Act was held to be ultra
wires by Gwynne, Sedgewick, and
King, J J . (Sir Henry Strong, C.J.,
and Fournier dissenting). Therefore
on the same day there were conﬂict-
ing decisions on the same question.
[The following judgments his
Lordship, the Chief Justice, kindly
returned to me in proof corrected.
His Lordship also supplied me with
the judgments in Huson w. South
Norwich; see post, p. 195.]
Judgment in Att.-Gen. of Ontario
w. Att.-Gen. for the Dominion, 15
Jan. 1895 :—
Sir Henry Strong, C.J.: “My
reasons for the foregoing answers
will appear from my judgment in
Huson w. South Norwich” [a ques-
tion on the same Act, reported on
the validity of the publication of the
bye-laws in 21 S. C. R. 669].
“ I have only to add that I do
not think any statutory deﬁnition of
the terms ‘wholesale’ and ‘retail ’
is requisite, but if legislation is
required for such purpose it is
vested in the Dominion as apper-
taining to the regulation of trade
and commerce. I answer the 3rd
and 4th questions in the negative,
because the prohibition of manufac-
ture and importation would aﬁect
trade and commerce, and so must
belong to the Dominion; and fur-
ther, for the reason that prohi-
bition to that extent would aﬁect
the revenue of the Dominion de-
rived from the customs and excise
duties.”
His Lordship’s judgment in
Huson w South Norwich was:
“All questions involved in this
appeal, save that relating to the
constitutional validity of the 18th
section of the Ontario statute,
53 Vict. c. 56., entituled ‘ An Act to
improve the Liquor License Laws,’
as explained and limited by the On~
tario statute, 54 Vict. c. 46. s. 1,
have been already disposed of. [21
S. C. R. 669.] This remaining
point we have now to determine.
“I am of opinion that these en-
actments were z'utra wires of the
provincial legislature. The learned
judges of the Court of Appeal, in
the case of the Local Option Act
[18 O. A. R. 572], have dealt
fully with this identical question,
and I so entirely agree with both
their reasons and conclusions that
I might well have contented myself
B.N.A. ACT, s. 92 (9).—-DOM. IN COMPETENCY.
165
with a reference to that case with-
out adding to the mass of judicial
decisions already accumulated on
the subject. There appears to me,
however, to be some additional
reasons, which I will state as suc-
cinctly as possible. We are pre-
cluded by the decision of the Privy
Council in the case of Russell
v. The Queen, 7 App. Cas. 829
[see Note, above], and by that of
this Court in the City of Frederic-
ton v. The Queen [3 S. C. R. 505],
from holding that under sub-sec. 8
of sec. 92 of the B. N. A. Act, the
exclusive power of prohibiting the
sale of liquor by retail, including
the enactment of what are called
Local Option Laws, was given to
the provinces as an incident of the
police power conferred by the words
‘ Municipal institutions.’ That those
words do confer a police power to
the extent of licensing and regulat-
ing was decided by the Privy Coun-
cil in the case of Hodge v. The
Queen, 9 App. Cas. 117 [see Note,
above]. The question then is nar-
rowed to this : Have the provinces,
under this sub-sec. 8, a power con-
current with that of the Dominion
to enact prohibitory legislation, to
be carried into elfect through the
instrumentality of the municipal-
ities or otherwise, either generally
or to the extent of the power of
prohibiting which had been con-
ferred on municipal bodies by
legislation enacted prior to con-
federation and in force at that
date ? It is established by Russell
0. The Queen that the Dominion,
being invested with authority by
sec. 91 to make laws for the peace,
order, and good government of
Canada, may pass what have been
denominated local option laws. But
as I understand that decision, such
Dominion laws must be general
laws, not limited to any particular
province. It is not competent to
Parliament to draw to itself the
right to legislate on any subject
which by sec. 92 is assigned to the
provinces by legislating on that
subject generally for the whole
Dominion, but this is, of course,
not done where in the execution of
a power expressly given to it by
ATT.-GEN. OF
N'I‘ARIO v.
ATT.-G'EN. OF
THE DOMINION,
sec. 91, the Federal Legislature &C,
makes laws similar to those which prohibitory
a provincial legislature may make Liquor Laws.
in executing other powers expressly SIR HENRY
given to the provinces by see. 92. STRONG, C.J.,
Therefore, it appears to me that for Validity‘
there are in the Dominion and the
provinces, respectively, several and
distinct powers, authorizing each,
within its own sphere, to enact the
same legislation on this subject
of prohibitory liquor laws, re-
straining sale by retail; that is to
say, the Dominion may, as has
already been conclusively decided,
enact a prohibitory law for the
whole Dominion, whilst the pro-
vincial legislatures may also enact
similar laws, restricted, of course,
to their own jurisdictions. Such
provincial legislation cannot, how-
ever, be extended so as to prohibit
importation or manufacture, for the
reason that these subjects belong
exclusively to the Dominion under
the head of ‘ trade and commerce,’
and also for the additional reason
that the revenue of the Dominion
derived from customs and' excise
duties would be thereby aﬁected.
That there may be, in respect of
other subjects, such concurrent
powers of legislation has already
been decided by the Privy Council
in the case of the Att.-Cren. of
Ontario 1*. Att.-Gren. of Canada,
[1894] A. C. 189, where this ques-
tion arose with respect to insolvency
legislation. I venture to think the
present even a stronger case for the
application of such a construction
than that referred to. To neither
of the legislatures is the subject of
prohibitory liquor laws in terms
assigned. Then what reason is
there why a local legislature in
execution of the police power con-
ferred by sub-sec. 8 of sec. 92,
may not, so long as it does not
conﬂict with the legislation of the
Dominion, adopt any appropriate
means of executing that power,
merely because the same means
166 B.N.A. ACT, s. 92 (9).—-RETAIL AND “COMMERCE.”
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. or
may be adopted by the Dominion
Parliament under the authority of
sec. 91 in executing a power
speciﬁcally given to it? It has been
decided by the highest authority
that there are no reasons against
such a construction. This is, in-
deed, even a stronger case for re-
cognising such a concurrent power
than the case of the Att.-Gen. of
Ontario 1:. Att.-Gen. of Canada,
because bankruptcy and insolvency
laws are, by sec. 91, expressly
attributed to the - exclusive juris-
diction of the Dominion. In the
event of legislation providing for
prohibition enacted by the Do-
minion and by a province coming
into conﬂict, the legislation of the
province would, no doubt, have to
give way. This was pointed out
by the Privy Council in the Att.-
Cren. of Ontario 0. Att.-Gen. of
Canada, and although the B. N.
A. Act contains no provision de-
claring that the legislation of the
Dominion shall be supreme, as is
the case in the Constitution of the
United States, the same principle
is necessarily implied in our Con-
stitutional Act, and is to be applied
whenever, in the many cases which
may arise, the federal and provincial
legislatures adopt the same means
to carry into effect distinct powers.
That a general police power, suffi-
cient to include the right of legis-
lating to the extent of the prohi-
bition of retail traffic or local option
laws, not exclusive of, but con-
current with, a similar power in the
Dominion, is vested in the provinces
by the words ‘ Municipal institu-
tions in the province ’ in sub-sec. 8
of sec. 92, is, I think, a propo-
sition which derives support from
the case of Hodge c. The
Queen, 9 App. Cas. 117 [see Note,
above]. It is true that the sub-
ject of prohibition was not in
question in that case, but there
would seem to be no reason why
prohibitory laws, as well as those
regulating and limiting the traffic
in liquors, should not be included
in the police power which, under
TIIE DOMINION,
8:0.
Prohibitory
Liquor Laws.
SIR HENRY
STRONG, OJ.
'aﬁect trade and commerce.
the words ‘ Municipal institutions,’
it was held in Hodge c. The Queen,
to the extent of licensing, the pro-
vinces possessed. The difference
between regulating and licensing
and prohibiting is one of degree
only. As regards the objection
that to recognise any such right of
legislation in a province not exten-
ding to the prohibition of im-
portation and manufacture would
be an infringement of the power of
the Dominion to regulate trade and
commerce, I am not impressed by
it. The retail liquor traffic can
scarcely be regarded as coming
directly under the head of ‘ trade
and commerce’ as used in the B.
N. A. Act, but as the subjects
enumerated in sec. 92 are excep-
tions out of those mentioned in sec.
91, it follows that if a police power
is included in sub-sec. 8 of the
former section, the power itself and
all appropriate means of carrying
it out are to be treated as uncon-
trolled by anything in sec. 91.
Moreover, Hodge c. The Queen
also applies here, for although in
a lesser degree, yet, to some ex-
tent, the restriction of the liquor
trade by a licensing system would
On
the whole, I am of opinion that
the provincial legislatures have
power to enact prohibitory legis-
lation to the extent I have men-
tioned, though this power is in no
way exclusive of that of the Do-
minion, but concurrent with it. If
I am wrong in this conclusion, itis
suﬂicient for the decision of this
appeal to hold, as I do, that the
Legislature of Ontario had power
to repeal and re-enact the legisla-
tion in force at the date of the Con-
federation Act, which gave muni-
cipal councils the right to pass
bye-laws absolutely prohibiting the
sale of liquor by retail within cer-
tain local limits. Having regard
to the history and objects of con-
federation, I can scarcely think it
possible that it could have been
intended by the framers of the B.
N. A. Act to detract in. any way
B.N.A. ACT, s. 92 (say-enema RESOLUTIONS.
167
from the jurisdiction of the pro-
vinces over their own several sys-
tems of municipal government. If
the words ‘ Municipal institutions ’
in sub-sec. 8 are to have any mean-
ing attributed to them, they must
surely be taken as giving authority
to repeal, re-enact, and remodel the
laws relating to all municipal legis-
lation then in force.
“In Re Slavin v. Orillia, 36 U. C.
Q. B. 159, this was the view of
the Ontario Ct. of Q. B., and
Richards, C.J., in his judgment on
that case puts forward powerful
arguments in support of that con-
clusion. These reasons, as well as
those given for the judgment of the
Court of Appeal in the local option
case [18 Ont. App. R. 572], have
convinced me that at least to the
extent last mentioned (even if I
am wrong in my ﬁrst proposition)
the provinces have the power to
legislate. As the enactments now
in question are reproductions of
those in force at the date of con-
federation, they were, therefore,
z'ntra wires of the Ontario Legisla-
ture. In the case of Severn o. The
Queen, 2 S. C. R. 70 [see Note,
sec. 91], I expressed some doubt
as to the decision in Re Slavin 1v.
Orillia, on the ground that the effect
of that case would be to make the
law vary in different provinces.
These observations were not mate-
rial to the judgment I then gave,
which was founded entirely on the
9th sub-sec. of sec. 92, and I have
now come to the conclusion that
they were not well founded. The ap-
peal must be dismissed with costs.”
Fournier, J .= “ I concur in the
conclusions arrived at by the Chief
Justice of this Court, and adopt
his answers to the seven questions
submitted.”
Gwynne, J. : “ In construing the
language of the B. N. A. Act deﬁn-
ing the jurisdiction of the Dominion
Parliament and of the provincial
legislatures, we must never lose
sight of the fact that this language is
that of the resolutions adopted in
1864 by the provincial statesmen
assembled in Quebec, by the autho-
rity of Her Most Gracious Majesty,v
for the purpose of framing the
provisions of a Constitution for
federally uniting the B. N. A. pro-
vinces into one government under
the British Crown, and that the
B. N. A. Act was passed merely
for the purpose of giving legislative
form to the terms and provisions of
a treaty of union between the
respective provinces forming the
confederation and the Imperial Go-
vernment, as such terms and pro-
visions are expressed in the reso-
lutions adopted by the framers of
the Constitution, and by the respec-
tive legislatures of the provinces of
Canada, Nova Scotia, and New
Brunswick, and by the Imperial
Government. So likewise must we
keep ever present to our minds the
fact that the main object of these
provincial statesmen, who were the
authors and founders of our
new Constitution, in framing their
project of confederation, was to
devise a scheme by which the best
features of the United States of
America, rejecting the bad, should
be grafted upon the British Con-
stitution, and to vest in the pro-
vincial legislatures exclusive juris-
diction over all matters of a purely
provincial, local, municipal, and
domestic character, and in the
general or central legislature ex-
clusive jurisdiction over all matters
over which, as being of a general,
quasi-national, and sovereign charac-
ter, the inhabitants of the several
provinces might be said to have a
common interest distinct from the
particular interest they would have
in matters affecting the local,
municipal, and domestic affairs of
the particular province in which
each should reside. That this was
the main design of the scheme of
confederation proposed by the
framers of our Constitution, and as
intended by the resolutions adopted
by them, is abundantly apparent
from the speeches accompanying
the submission of the resolutions to
the legislatures of the provinces for
AT'L-GEN. or
ONTARIO v.
Arr-GEN. or
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
FOURNIER, J.,
for validity.
GWYNNE, J.,
against
validity.
168 B.N.A. ACT, S. '92 (say-Loan DURHAM’S REPORT.
ATT.—GEN. or
ONTARIO w.
Arr-GEN. or
THE DOMINION
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
their adoption. The late Sir John
Macdonald, the chief of the pro-
vincial statesmen engaged in fram-
ing the resolutions, when present-
ing them to the legislature of the
province of Canada for their adop-
tion, says: ‘ We must consider the
scheme in the light of a. treaty;
the whole scheme of confederation,
as propounded by the Conference,
as agreed to and sanctioned by the
Canadian Government, and as now
presented for the consideration of
the people and the legislature,
bears upon its face the marks of
compromise.’ And again, ‘ In the
proposed Constitution all matters of
general interest are to be dealt with
by the general legislature, while
the local legislature will deal with
matters of local interest.’ Again,
referring to the Constitution of the
United States of America, he says :
‘ \Ne can take advantage of the last
78 years during which the Consti-
tution of the United States has
existed, and I am strongly of
opinion that we have in a great
measure avoided in this system
which we propose for the adoption
of the people of Canada, the defects
which time and events have shown
to exist in the American Consti-
tution.’ And again, ‘We have
strengthened the general govern-
ment, we have given the general
legislature all the great subjects of
legislature, we have conferred on
them not only speciﬁcally and in
detail all the powers which are in-
cident to sovereignty, but we have
expressly declared that all subjects
of general interest not distinctly
and exclusively conferred upon the
local government and local legisla-
tures shall be conferred upon the
general government and legisla-
ture.’ And, ‘ I shall not detain the
House by entering into a con-
sideration at any length of the
different powers conferred upon
the general Parliament as contra-
distinguished from those reserved
to the local legislatures, but any
honourable member, in examining
the list of different subjects which
are to be assigned to the general and
local legislatures respectively, will
see that all the great questions
which affect the general interests
of the confederacy as a whole are
conﬁded to the Federal Parliament,
while the local interests and local
laws of each section are entrusted
to the care of the local legislatures.’
The late Mr. Geo. Brown, then
President of the Executive Council
of the province of Canada, and
also one of the delegates who
framed the Constitution, said:
‘ All matters of trade and commerce,
banking and currency, and all
questions common to the whole
people, we have vested fully and
unrestrictedly in the general go-
vernment.’ And, ‘the Crown
authorized us specially to make
this compact, and has heartily ap-
proved of what we did.’ And he
described the terms of the scheme
of confederation as embodied in
the resolutions to Lord Durha-m’s
report, wherein he suggested a
union of the provinces ‘upon a
plan of local government by elec-
tive bodies subordinate to the
general legislature, and exercising
complete control over such local
matters as do not come within the
province of general legislation, and
that a general executive upon an
improved principle ‘ should be esta-
blished, together with a supreme
court of appeal for all the North
American Colonies.’ And, again, he
said that ‘ No higher eulogy could
be pronounced upon the scheme
produced than that which he had
heard from one of the fore-
most of British statesmen. namely,
that the system of government
which we propose seemed to him a
happy compound of the best fea-
tures of the British and American
Constitutions.’ Sir Geo. Etienne
Cartier, then Attorney-General of
Canada East, and another of the
framers of the Constitution for the
proposed confederacy, said as to
the general scheme, in advocacy of
its adoption by the Canadian Legis-
lature, ‘ Questions of commerce, of
B.N.A. ACT, s. 92 (9).-LORD CARNARVON’S SPEECH. 169
international communication, and
all matters of general interest, would
be discussed and determined in the
general legislature.’ And, again, he
said that in all their proceedings
the framers of the Constitution
had the approbation of the Imperial
Government, and in ﬁne he said,
‘ I have already declared in our
own name, and on behalf of the
Government, that all the delegates
that go to England will accept
from the Imperial Government no
Act but one based upon the reso-
lutions if adopted by the House,
and will not bring back any other.’
The resolutions having been adopted
by the legislatures of Canada, Nova
Scotia, and New Brunswick, were
transmitted to the Imperial Go-
vernment, and, at the request of
that Government, a conference was
held upon them in England be-
tween delegates from those pro-
vinces and the Imperial Govern-
ment, at which conference the reso-
lutions were adopted almost rverba-
tim, with a slight modiﬁcation as
to the power of the executive go-
vernment of the confederacy, intro—
duced at the suggestion of the
Imperial Government for the pur-
pose of still further strengthening
the central executive of the pro-
posed coufederacy,~ such modiﬁca-
tion consisting in expunging the
44th resolution, which proposed to
vest in the provincial executive the
power of pardon of criminal oifen-
ces, as to which resolution Sir J.
Macdonald had said, when sub-
mitting the resolutions to the Cana-
dian Legislature, that this was a
subject of Imperial interest, and
that if the Imperial Government
should not be convinced by the
argument they would be able to
press upon them for the continu-
ance of the clause (44th resolution)
they could, of course, as the over-
ruling power, set it aside. Accord-
ingly, at the conference in England
it was, with the assent of the pro-
vincial delegates, set aside and ex-
punged, and that power of pardon
was Vested in the central or general
government, and in other respects
the language of the resolutions
was not only substantially, but
almost rverbatim et literatim, em-
bodied in a Bill agreed upon by
the provincial delegates and the
Imperial Government as the Bill to
be presented to Parliament to be
passed into an Act. In Her
Majesty’s Address to both Houses
upon the opening of Parliament
in Feb. 1867, she was pleased to
refer to the proposed scheme of
confederation in the following man-
ner. [Reads the formal announce-
ment of the intention to introduce
a Bill.] Lord Carnarvon, then
Colonial Minister, in presenting
this Bill to Parliament explained
its intent and purpose, saying,
among other things, with reference
to the‘ said resolutions, that they,
with some slight changes, formed
the basis of the measure to be sub-
mitted to Parliament; that to those
resolutions all the British provinces
in North America were consenting
parties, and that the measure
founded upon them must be accep-
ted as a Treaty of Union. Then,
referring to the distribution of
powers, he said, ‘I now pass to
that which is, perhaps, the most
delicate and most important part of
this measure, the distribution of
powers between the central govern-
ment and the local authorities; in
this, I think, is comprised the main
theory and constitution of Federal
Government; on this depends
the principal working of the new
system ’ ; and ‘ the real object which
we have in view is to give to the
central government those high
functions and almost sovereign
powers by which general principles
and uniformity of legislation may
be secured on those questions that
are of common import to all the
provinces, and at the same time to
retain for each province such an
ample measure of municipal liberty
and self-government as will allow,
and indeed compel, them to exer-
cise those local powers which they
can exercise with great advantage
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. OF
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
170
B.N.A. ACT, s. 92 (9).—-PURELY PROVINCIAL.
ATT.-GEN. or
ONTARIO v.
ATT.—GEN. OF
THE DOMINION,
8:0.
Prohibitory
Liquor Laws.
GWYNNE, J.
to the community.’ ‘In this Bill
the division of powers has been
mainly effected by a distinct classi-
ﬁcation; that classiﬁcation is four-
fold: 1st, those subjects of legis-
lation which are attributed to the
central Parliament exclusively;
2nd, those which belong to the
provincial legislatures exclusively;
3rd, those which are the subject
of concurrent legislation; 4th a
particular subject which is dealt
with exceptionally.’ Then as to
the subject of concurrent jurisdic-
tion he says, ‘There is, as I have
said, a concurrent power of legisla-
tion to be exercised by the central
and local parliaments. It extends
over three separate subjects—immi-
gration, agriculture, and public
works.’ Then, in reply to a ques-
tion, whether by the terms of the
arrangement that had been come to
Parliament was precluded from
making any alteration in the terms
of the Bill, he said, ‘It was, of
course, within the competence of
Parliament to alter the provisions
of the Bill, but he should be glad
for thc House to understand that
the Bill partook somewhat of the
nature of a Treaty of Union, every
single clause of which had been
debated over and over again, and
had been submitted to the closest
scrutiny, and, in fact, as each of
them represented a compromise be-
tween the different interests in-
volved, nothing could be more fatal
to the Bill than that any of those
clauses which were the subject of
compromise should be subject to
such alteration; that, of course,
there might be alterations which
were not material, and which did
not go to the essence of the
measure, and he would be quite
ready to consider any amendment
that might be proposed in Com-
mittee, but that it would be his
duty to resist the alteration of any-
thing which was in the nature of a
compromise, and which, if carried,
would be fatal to the measure.’
Accordingly, the Bill was passed
as introduced, without any altera-
tion whatever, as the British North
America Act, 1867. From the
above extract it is apparent that
that Act is but the reduction into
legislative form of a treaty, after
the fullest deliberation, previously
agreed upon between the provincial
statesmen, who were the originators
and framers of the scheme of con-
federation contained therein, and
Her Majesty’s Imperial Govern-
ment, and such being the history
of the origin of the scheme and of
the Treaty of Union, and of its
embodiment in an Act of Parlia-
ment, when a question should arise
which should create any doubt as
to whether a particular subject of
legislation comes within any of
the items enumerated in sec. 92,
and so under the exclusive juris-
diction of the provincial legisla-
tures, or within sec. 91, and so
under the exclusive jurisdiction of
the Dominion Parliament, the doubt
must be solved by endeavouring to
ascertain the intention of the
framers of the scheme and the
parties to such treaty. From the
above extracts it is also apparent
that the essential features of the
scheme of confederation was that
the legislative jurisdiction conferred
upon the central and provincial
legislature respectively should be
exclusive upon all subjects placed
under the jurisdiction of each, save
only the three subjects which were
made the subjects of concurrent
jurisdiction; and that such exclu-
sive jurisdiction conferred upon
the central legislature, that is to
say the Dominion Parliament, ex-
tended over all matters of a quasi-
national and sovereign character,
and over all matters of common
import and general interest which
affect the general interests of the
confederacy as a whole, that is to
say, over all matters in which the
people of the confederacy as a
whole may be said to have a com-
mon interest; and that the exclu~
sive jurisdiction of the provincial
legislatures was restricted to matters
of a merely private, provincial,
B.N.A. ACT, s. 92 (9).—MUNIOIPAL AND DOMESTIC.
171
municipal, and domestic character,
all of which matters are compre-
hended in the subjects enumerated
in the several items in sec. 92 of
the Act, which, under the heading
‘ Exclusive Powers of Provincial
Legislatures,’ declares that— [Reads
sec. 92.] Then follow sixteen
items, every one of which can with
the utmost propriety be said to re-
late to subjects of a purely local,
private, provincial, municipal, and
domestic character. But by sec.
91 it is declared—[Reads it.]
Then follow twenty-nine items, the
second of which is ‘Regulation of
Trade and Commerce.’ The sec-
tion then closes with the provisions
—[Reads end of sub-sec. 29.] It
has been sometimes, and still is by
some, suggested that this pro-
vision refers grammatically only to
item 16 of sec. 92, but this is a
too critical construction of the Act
for what the enactment plainly
says is—‘ that any matter coming
within any of the classes of subjects
enumerated in sec. 92 shall not be
deemed to come within the class of
matters of a local or private nature
comprised in the enumeration of
the classes of subjects by this Act
exclusively assigned to the legisla-
tures of the provinces ’ ; thus, as I
submit, and if I may be permitted
the expression, explicitly, implying
that, as the fact in truth appears to
me to be, all the matters exclusively
assigned to the provincial legisla
tures by the enumeration contained
in sec. 92 were (within the intent
of the framers of the scheme of
confederation, and so within the
meaning of the B. N. A. Act) of a
purely local and private nature,
that is to say of a purely provincial,
municipal, and domestic character,
as distinguished from matters of
common import and general interest
to the people of the confederacy as
a whole. The true effect of this
provision in sec. 91 is, plainly as
it appears to me, to give expressly
to the Dominion Parliament for
the purpose of exclusive legislation
upon all matters coming within the
several subjects enumerated in sec
91, legislative power, if required,
over all the subjects enumerated in
the sixteen items of sec. 92, every
one of which relates to matters of
a purely provincial, municipal, pri-
vate, and domestic character, that
is to say, ‘of a local and private
nature,’ so that legislation by the
Parliament upon any of the sub-
jects comprehended within any of
the items enumerated in sec. 91
may be complete and effectual, not-
withstanding that for such purpose
interference with some or one of
the subjects comprehended in the
enumeration of subjects in sec. 92
should be necessary, and such
interference by the Dominion Par-
liament with any of the subjects
enumerated in sec. 92 shall not be
deemed to be an encroachment
upon or interference with the legis-
lative powers conferred upon the
provincial legislatures.
“Now, according to the canons
of construction as laid down by
this Court in Fredericton v. The
Queen, 3 S. C. R. 505, and by the
Judicial Committee of the Privy
Council in Russell 0. The Queen,
7 App. Cas. 829 (between which I
do not ﬁnd there is any substantial
diﬁerence), if the jurisdiction to
prohibit absolutely the carrying on
of the trades under consideration,
or of any trade, whether by retail
or wholesale, is not comprised in
some or one of the items enumera-
ted in sec. 92 of the Act, the
provincial legislatures have no such
jurisdiction, but the same is ex-
pressly and exclusively vested in the
Dominion Parliament; and even
though a particular subject of
legislation may be capable of being
construed to come within sec. 92,
reading that section by itself, still,
if that subject comes within any of
the items enumerated in sec. 91, it
is taken out of the operation of sec.
92, which in such case is to be
construed as not comprehending
any such subject. Now the several
questions in the case submitted to
us are resolvable into this one,
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. or
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
172
B.N.A. ACT, s. 92 (9).-COMMCN IMPORT.
ATT.-GEN. OF
ONTARIO 'v.
ATTwGEN. OF
TIIE DOMINION,
&o.
Prohibitory
Liquor Laws.
GwYNNE, J.
namely, is the jurisdiction to pro-
hibit absolutely the manufacture in
any province of the Dominion of
anada, or the importation into
the province or the sale therein,
either by wholesale or retail, of
spirituous, fermented, or other in-
toxicating liquors vested in the
Dominion Parliament, or in the
legislatures of the respective pro-
vinces? In Fredericton w. The
Queen this question directly arose,
and the judgment of this Court pro-
ceeded upon two grounds—1st,
that the provincial legislature had
no jurisdiction over any subject-
matter not coming within some or
one of the classes of subjects
specially enumerated in sec. 92 of
the Act, and that upon principle
and the authority of the judgment
of the Supreme Court of the pro-
vince of New Brunswick in the
Queen w. Justices of King’s County,
2 Pugs. 535, which judgment this
Court approved of and affirmed, the
subject of absolute prohibition of
the sale of intoxicating liquors
(such being the character and pur-
pose of the Act then under con-
sideration) did not come within any
of the classes of subjects particu-
larly enumerated in and contem-
plated by sec. 92 as being placed
under the jurisdiction of the pro-
vincial legislatures; and, 2ndly,
that jurisdiction over such subject,
that is to say absolute prohibition
of the trade in intoxicating liquors,
was expressly and exclusively con-
ferred upon the Dominion Parlia-
ment by the 91st section, item
No. 2. III Russell w. The Queen,
wherein the same question arose
as in Fredericton The Queen,
the Judicial Committee of the
Privy Council, while proceeding
wholly upon the ﬁrst of the above
grounds, guard themselves from
being considered as dissenting from
the second ground, upon which the
court proceeded in Fredericton w.
The Queen, by the following lan-
guage. [Reads; see ante, p. 135, end
of judgment] It has, however, fre-
quently been and still is contended
by some, but in my opinion without
any suﬁicient grounds, that there
are passages in some of the judg-~
ments of their Lordships of the
Privy Council upon the construc-
tion of the B. N. A. Act which
tend to the conclusion that the
judgment of this Court in Frederic-
ton cannot be sustained upon the
second of the above grounds upon
which this Court proceeded, namely,
the Act under consideration there,
being for the absolute prohibition
of the trade in intoxicating liquors
(although, by adoption of the prin-
ciple of local option), was within
the exclusive jurisdiction of the
Dominion Parliament under sec.
91, sub-sec. 2 of the B. N. A. Act,
which— [Reads sec. 91 , sub-sec. 2.]
“ It is true that their Lordships of
the Privy Council, in Citizens’
Insurance Company w. Parsons, 7
App. Cas. 112 [see post], upon
a very different subject from that
of the prohibition of the exercise of
the trade in intoxicating liquors,
threw out merely the suggestion
that possibly the expression, ‘ The
regulation of trade and commerce,’
sub-sec. 2, sec. 91, may have been
used in some such sense as the
words ‘ regulation of trade ’ in the
Act of Union between England
and Scotland [6 Anne, 0. 11.], and
as these words in the Acts of State
relating to trade and commerce, but
in construing expressions used in
the B. N. A. Act we must never,
as I have already observed, lose
sight of the fact that those expres-
sions are but the embodiment of
the terms and provisions of the
treaty prepared by the provincial
statesmen assembled in Quebec by
authority of Her Majesty the
Queen, and concurred in by Her
Majesty’s Imperial Government,
for the purpose of federally uniting
the British North America pro-
vinces into one government; and
we must always keep prominently
present to our minds that the object
of the framers of our Constitution
in framing its terms and provisions
was, as abundantly appears from
B.N.A. ACT, S. 92 (9).—FEATURES OF Us.
173
‘ legislatures of
the above extracted passages from
their speeches, to adopt the best
features of the Constitution of the
United States of America, the only
Federal Constitution with which
they were familiar, and to which
they would naturally look for light
as to what they should adopt, and
what alter and reject, when en-
gaged in the task of distributing
the legislative powers between the
Dominion Parliament and the
the confederated
provinces, contemplating as they
were the engrafting of what they
considered the best features of the
Constitution of the United States
of America upon the British Con-
stitution, for the purpose of fram-
ing a federal confederacy under one
central government. It is to my
mind, with great deference I say
it, altogether inconceivable that
the framers of our Constitution
should have had present to their
minds the Act of Anne, or any Act
of State of the Imperial Govern~
ment; neither the one nor the other
of these could be expected to throw
any light upon the subject in which
they were engaged, namely, the
distribution of legislative powers
between the central or Dominion
Parliament and the legislatures of
the proposed confederacy, while,
on the contrary, it was quite natural
and to be expected that they should
have had constantly present to
their minds the Constitution of the
United States of America, the best
features of which they desired to
adopt, and to alter and reject those
which did not seem to them to be
desirable to be adopted. We must,
therefore, I submit, be excused if
we conﬁdently aﬂirm that in making
provision for the distribution of
legislative powers between the
Dominion Parliament and the
legislatures of the confederated
provinces, and in such distribution
making provision that the Domi-
nion Parliament should have ex-
clusive jurisdiction in all matters
coming within ‘ the regulation of
trade and commerce ’ in item No.2,
sec. 91,neither was the Act of Union
between England and Scotland,
nor any Act of State of Imperial
Government relating to trade and
commerce, ever present to the minds
of the framers of our Constitution,
but that what in fact was so present
was the Constitution of the United
States of America, the best features
of which they were engaged in
grafting upon the British Consti-
tution for the purpose of framing a
new and more perfect Constitution
for the proposed confederacy of
the B. N. A. provinces; and that
what they intended by the particu-
lar expression under consideration
was to place ‘ fully and unrestric-
tedly ’ (to use the language of the
late Mr. Geo. Brown above extrac-
ted) unlimited and exclusive juris-
diction in the Dominion over all
matters of ‘ trade and commerce’
in every part of the Dominion, and
that what they had in view in so
doing was to strengthen the central
Parliament, and to eﬁect thereby
an improvement in the Constitution
of the proposed confederacy over
that of the United States of
America, the central legislature of
which has jurisdiction only over
inter-State trade and commerce,
and that with foreign countries.
If the framers of our Constitution
had contemplated conferring upon
the Dominion Parliament only such
limited jurisdiction as that possess-
ed by the Congress of the United
States, they would have had no
diﬁiculty, and, doubtless, would
not have failed, in so expressing
themselves; on the contrary, the
language they have used is of a
most unlimited character, and ex-
hibits no intention of having such
a limited construction. NO argu-
ment in favour of such a limited
construction can, I submit, be
fairly drawn from the fact that
jurisdiction is independently given,
by sub-secs. 15, 18, and 19 of sec.
91, Over banking, bills of exchange,
interest, and the like, which
may be said to be matters coming
within the classes of subjects
ATT.-GEN. or
ONTARIO v.
'l‘T.-GEN. OF
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
G-wYNNE, J.
174
B.N.A. ACT, s. 92 (9).—CONTRARY ASPECTS.
ATT.-GEN. OF
ONTARIO v.
ATT.—GEN. or
run DOMINION,
&c.
Prohibitory
Liquor Laws.
GwYN NE, J.
coming under the terms of ‘ Trade
and Commerce,’ for this repetition
of powers involved in the enumera-
tion of items appears to have been
inserted for greater certainty, and
there is, I think, an intention suﬂ‘i-
ciently manifested on the face of
the Act that the enumeration of
particulars should not be construed
so as to limit and restrict the ope-
ration and construction of general
terms in which the particulars may
be included. Then it was contend-
ed that a passage in the judgment
of the Privy Council in Hodge v.
The Queen, 9 App. Cas. 117, is in
favour of the contention that the
jurisdiction to declare that the
trades of manufacturing, and that
of importing, and that of selling in-
toxicating liquor shall be illegal,
and shall not be carried on, is vested
in the provincial legislatures under
sec. 92. If it be, it must be under
the express terms of the Act ex-
clusively so vested. Now the
passage relied on in support of this
contention is that wherein their
Lordships say, ‘that the principle
established by their judgment in
the Citizens’ Insurance Co. 2*. Par-
sons, and Russell 2;. The Queen, is
that subjects which in one aspect
and for one purpose fall within sec.
92, may in another aspect and for
another purpose fall within sec.
91.’ What this passage conveys sim-
ply is that a particular subject-mat-
ter may have two aspects in which
it may be viewed, and that viewed
in one of those aspects jurisdiction
over it may be exclusively vested in
the provincial legislatures under
sec. 92, and that viewed in the
other of such aspects jurisdiction
over it, so viewed, may be exclusive-
ly vested in the Dominion Parlia-
ment; and what I understand their
Lordships by that passage to say is,
that for the purpose of determining
whether a particular subject having
two aspects in which it may be
viewed comes under sec. 91 or see.
92, regard must be had to the as-
pectin which the particular subject
for the time being under con-
sideration is viewed, not that a
subject which, according to the
true construction of sec. 91 , comes
within one of the classes of subjects
there enumerated, and which is
therefore under the exclusive juris-
diction of the Dominion Parlia-
ment by the express terms of this
section, can nevertheless by force of
sec. 92 be under the jurisdiction of
provincial legislatures. What is
the true construction of the term
‘ the regulation of trade and com-
merce ’ as used in sec. 91, sub-sec.
2, is a matter which of course is
fairly open to argument, and is to
be determined, in my opinion, for
the reasons already given, by ascer_
taining the intention of the framers
of our Constitution, which intent
is, in my opinion, as I have above
stated; but once it is determined
that a particular subject under
consideration does come within
that term, the jurisdiction over it
is vested exclusively in the Domi-
nion Parliament, and, being so,
cannot be legislated upon by a pro-
vincial legislature. There is no
concurrent jurisdiction given to
both, save only over the three sub-
jects specially designated in the
Act as being subject to concurrent
jurisdiction. The subject we have
now under consideration is the
right of absolutely prohibiting the
carrying on of the trades of manu-
facturing, importing, and selling
spirituous liquors, the right, in fact,
of declaring by legislative authority
that these trades or some or one of
them shall not be carried on, that the
carrying of them on shall be abso-
lutely unlawful. This subject does
not admit of two aspects. Be-
tween pronouncing the carrying on
of a particular trade to be abso-
lutely unlawful, and prescribing
the manner in which and the per-
sons by whom that trade, being
lawful, shall be carried on, there is
a vast difference. Fredericton v.
The Queen and Russell 21. The
Queen are cases dealing with the
former of such subjects, and Hodge
r. The Queen and Sulte 0. Three
B.N.A. ACT, s. 92 (9).--EL1MINATING TRADES.
175'
Rivers are cases dealing with the
latter. In Fredericton v. The
Queen and Russell 11. The Queen
the question was as to jurisdiction in
the case of prohibition. In the
former of those cases this Court
held that the provincial legislatures
had not, under sec. 92, any juris_
diction to pass the Act then under
consideration, the purpose of which
was to legislate upon that subject,
and that by force of sec. 91, sub-
sec. 2, the Dominion Parliament
had expressly exclusive jurisdiction
to pass it. In Russell v. The
Queen, their Lordships of the
Judicial Committee of the Privy
Council, while expressing no
opinion as to the applicability of
sec. 91, sub-sec. 2,, held that there
was nothing in sec. 92 conferring
on the provincial legislatures juris-
diction to pass the Act in question,
the sole purpose of which was in
relation to the absolute prohibition
of the trade. In Hodge v. The
Queen, on the other hand, they
held that the provincial legisla-
tures had exclusive jurisdiction
over the regulation of the manner
in which and the persons by
whom the trade, being a lawful
one, might be carried on, a subject-
matter as different as it is possible
to conceive from jurisdiction legis-
latively to declare the carrying on
of the trade to be absolutely un-
lawful. Here, then, we have an
illustration of the application of
the language of their Lordships
in the passage above extracted
from their judgment in Hodge v.
The Queen, namely, if we regard
the trafﬁc in intoxicating liquors
in the aspect of total jurisdiction
of the carrying on of the trade,
that is to say, eliminating it from
the category of lawful trades, in
that, aspect the jurisdiction is ex-
clusively in the Dominion Parlia-
ment; but if we regard it in the
aspect of regulating the manner
in which and the persons by whom
the trade, being a lawful one, may
be carried on in a particular pro-
vince, or a particular locality of
a province, that is a subject ex-
cuslively within the jurisdiction
of the provincial legislatures. Be-
tween the judgments in these
cases there is no contradiction,
nor have I been able to see in
any of the judgments of their
Lordships of the Privy Council
anything which can be said to
manifest judicial dissent from
either of the grounds upon which
the judgment of this Court in
Fredericton v. The Queen pro-
ceeded. It seems, however, to be
a matter of no importance whether
the question, as to where is vested
jurisdiction over total prohibition
of the trade, is rested upon both
of the grounds upon which this
Court proceeded in Fredericton v.
The Queen, or upon the single
ground upon which their Lord-
ships of the Privy Council pro-
ceeded in Russell 11. The Queen.
The report of the proceedings in
the Privy Council of the case of
the Liquor License Acts of the
Dominion Parliament of 1883—4
[see above], which has been laid
before us as part of the present
case, contains observations of their
Lordships, recognising the distinc-
tion, which I confess to my mind
appears very plain, between the
right to prohibit the carrying on
of a particular trade, and so to
destroy it and deprive it of lawful
existence, and the right to regulate
the manner in which and the per-
sons by whom the trade, being a
lawfully existing one, shall be carried
on [refers to remarks of SirM. Smith
that there was a distinction between
the Act of 1878 and the Act of 1883,
see ante, p. 148], that is to say,
between the prohibition Act under
consideration in Russell 2). The
Queen and the Dominion Liquor
License Act of 1883, which was
but a regulating Act. The fact
that the latter Act applied to the
whole Dominion made no difference,
for it may, I think, he said to be
obvious that the Dominion Parlia-
ment never could acquire juﬂs-
diction over a subj eet-matter placed
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. OF
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
176
B.N.A. ACT, 5. 92 (9).—-SULTE: RE-EXAMINED.
A'I'I‘.-GEN. or
ONTARIO w.
ATT.—GEN. OF
TIIE DOMINION,
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
by sec. 92 under the exclusive
jurisdiction of the provincial legis-
latures by assuming to legislate
upon such subject for the whole
Dominion. So neither could a
provincial legislature acquire juris—
diction over a subject coming
within any one of the classes of
subjects enumerated in sec. 91 by
restricting the application of an
Act of the provincial legislature
upon such subject to the limits
of the province. But it is argued
that neither in Fredericton nor in
Russell was sub-sec. 8 of sec. 92 re-
ferred to or considered, and that,
therefore, their Lordships’ judg-
ment in Russell and that of this
Court in Fredericton are open to
review upon the question of prohi-
bition now under consideration.
From the fact that this item was
not relied upon in those cases, it may
fairly be inferred that it never was
considered by the courts or the bar
to be applicable. The jurisdiction
conferred by this sub-section seems
to be that of establishing and main-
taining municipal institutions.
When the powers of our Constitu-
tion were conferring upon the pro-
vincial legislatures exclusive juris-
diction to make laws in relation to
‘ municipal institutions in the pro-
vinces,’ they had no doubt in view
municipal institutions such as
existed at the time of the Federa-
tion. But this sub-sec. 8, sec. 92,
says nothing as to the powers with
which such municipal institutions
may be invested; that seems to
have been left to the discretion of
the provincial legislatures to be
exercised within the limits of their
own jurisdiction, and would reason-
ably comprehend within such limits
all such powers as were then pos-
sessed by such municipalities, and
which were essentially necessary to
the good working of such institu-
tions, as had already been possessed
by all such institutions, as, for ex-
ample, the power of issuing licenses
to the persons to be engaged in the
traﬂic of intoxicating liquors, and
the power of regulating the manner
in which such persons should carry
on the trade in shops, saloons,
hotels, or taverns, which, as being
matters of a purely provincial,
municipal, and domestic character,
were subject to the urisdiction over
which was intended to be exclusive-
ly vested in the provincial legisla-
tures; and this is what Sulte w.
Three Rivers decides, and what was
intended to be conveyed by the
passage from my judgment in that
case [11 S. C. R. at p. 43], which
was cited by the learned counsel
who argued the case upon behalf of
the province of Ontario. But a
special power only then recently
for the ﬁrst time conferred upon
municipalities in the province of
Canada, and which had never been
conferred on municipalities in any
of the other provinces, could never
be said to be a power essentially
necessary to the good working of
such institutions; such power there-
fore cannot be held to be compre-
hended in sub-sec. 8 of that sec-
tion. In this subject is involved
the particular consideration of the
last of the questions submitted to
us, namely, whether the 18th sec-
tion of the Act of the Legislature of
Ontario, 53 Vict. c. 56., is or is
not ultra wires. The jurisdiction
assumed to be exercised by the
Ontario Legislature in this section
is not a jurisdiction which is
claimed to be conferred upon pro-
vincial legislatures by anything
expressed in sec. 92 of the B. N. A.
Act, but a jurisdiction which is
contended to be impliedly vested in
the Ontario Legislature, arising
from the fact that municipalities in
the late province of Canada had at
the time of confederation, by virtue
of special Acts of the legislature of
that province, power to prohibit, by
bye-laws to be passed and adopted
in the manner prescribed by the
special Act, the sale by retail of
spirituous liquors within the limits
of the municipality passing such
bye-laws, a power which was not
possessed by municipalities in the
province of Nova Scotia or in that
B.N.A. ACT, s. 92 (9).—ONTARIO’S POWERS.
177
of New Brunswick; and such Acts
being repealed, it is contended that
the Legislature of Ontario has juris-
diction to revive their provisions.
That the legislature of the late
province of Canada had jurisdiction
to pass an Act in prohibition of
all traffic in intoxicating liquors
or in any other article of trade
may be admitted to be unquestion-
able, but I apprehend it cannot
admit of doubt that unless the pro-
vincial legislatures have, all of them,
under their new Constitutions, juris-
diction to pass an Act ole nooo for
the purpose of prohibiting absolutely
within their respective provinces
the sale of intoxicating liquors, the
Legislature of Ontario has no special
jurisdiction to invest municipalities
with such a power by passing an
Act purporting to revive the pro-
visions of an Act passed by the
legislature of the late province of
Canada within its jurisdiction, and
which conferred such a power upon
municipalities of the said late pro-
vince of Canada. The question,
therefore, involved in the 7th ques—
tion is precisely the same as that
involved in the 1st and subsequent
questions, namely—have provin-
cial legislatures of the Confederacy,
under their new Constitution, j uris—
diction to make laws in prohibition
of the trades of manufacturing, of
importing, or of selling spirituous
liquors by wholesale or by retail.
The precise history of the legisla-
tion recited in the 18th section of
the 53 Vict. c. 56. (Ont), and
upon which the legislature of that
province rest the jurisdiction as-
sumed by them in enacting the
provisions of that section, is as
follows :—The legislature of the
late province of Canada, by a
special Act passed in 1864, 27
& 28 Vict. c. 18., conferred power
upon the councils of municipalities
to pass bye-laws in prohibition of
the sale of intoxicating liquors
within the limits Of the munici-
pality, subject to certain conditions
involving the adoption of the prin-
ciple of what is called local option.
S 2340.
In the consolidation of the statutes
of the late province of Canada, the
provisions of the said Act, 27 & 28
Vict. c. 18., were consolidated in
one of the chapters of the consoli-
dated statutes as sec. 249, sub-sec.
9, of the Consolidated Munici-
pal Act, namely, 29 & 30 Vict.
c. 51. The whole of this section
249 was expressly repealed by an
Act of the Ontario Legislature
passed in 1869, 32 Vict. c. 32.,
but its terms were inadvertently or
by design repealed in sub-sec. 7 of
sec. 6 of the latter Act. In 1874
the Legislature of Ontario passed
another Act, 37 Vict. c. 32., enti-
tuled ‘An Act to amend and con-
solidate the law for the sale of
fermented and spirituous liquors,’
and thereby the said Act, 32 Vict.
c. 32., and another Act, 32 Vict.
c. 28., and also an Act, 36 Vict.
c. 48., entituled ‘ An Act to amend
the Acts respecting tavern and shop
licenses,’ were wholly repealed, and
new provisions were enacted; but
among such provisions there was
nothing of the nature of the pro-
visions which had been in sub-sec.
7 of sec. 6 of the repealed Act, 32
Vict. c. 32., but in lieu thereof pro-
vision was made for regulating the
issue of licenses for the sale of in~
toxicating liquors in each muni-
cipality by an officer to be ap-
pointed by the Lieutenant-Gover-
nor, to be called ‘ The Issuer of
Licenses.’ Now upon, and from
and after the passing of this Act,
the only authority, if there was
any, which municipalities in the
province of Ontario had, or could
claim to have, to pass a bye-law in
prohibition of the sale of intoxica-
ting liquors, was in virtue of the
provisions of the above recited Act
of the legislature of the late pro-
vince of Canada, 27 & 28 Vict.
c. 18. of 1864, and of sec. 129 of
the B. N. A. Act, which enacts-—
[reads it; see post]. It being,
then, only in virtue of this Act, 27
85 28 Vict. c. 18., that municipali-
ties in the province of Ontario
possessed the power to pass bye-
M
ATT.-GEN. or
NTARIO o.
Arr-GEN. OF
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
178
B.N.A. ACT, s. 92 (a) -DOM. LEGISLATION.
A'r'r.-GEN. OF
ONTARIO v.
ATT.-G'EN. OF
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
GWYNNE, J.
laws in prohibition of the sale of
intoxicating liquors, such power
must necessarily absolutely cease
upon the repeal of that Act. But
in 1878 the Dominion Parliament,
regarding prohibition of the sale of
intoxicating liquors to be a subject
over which exclusive jurisdiction
was conferred upon the Parliament,
and in exercise of the right re-
served to Parliament by said sec.
129 of the B. N. A. Act, passed
the Canadian Temperance Act,
187 8, whereby, as it is recited in
the said 18th section of the On-
tario Act, 53 Vict. c. 56., the above
Act of 1864, 27 8t 28 Vict. c. 18.,
was absolutely repealed save as re-
gards localities where the Act had
then already been acted upon, and
power is conferred by the Act of
187 8 upon all electors in every
municipality in every province of
the Dominion, qualiﬁed and compe-
tent to vote at the election of mem-
bers of the House of Commons,
upon certain conditions, and in
adoption of the principle of local
option, to prohibit the sale of in-
toxicating liquors in every munici-
pality adopting the provisions of
the Act. This Act as an Act in
prohibition has been held by the
Judicial Committee of the Privy
Council in England in Russell 1*.
The Queen, and in this Court in
Fredericton r. The Queen, to have
been within the jurisdiction of the
Dominion Parliament, and not to
have been within the jurisdiction
of a provincial legislature. The
object sought to be obtained by the
said 18th section of the Ontario
statute, 53 Vict. c. 56, would seem
to be to re-open the question adju-
dicated upon in those cases, and
mainly upon the suggestion that
sub-sec. 8 of sec. 82 of the B. N.
A. Act was not considered by the
Judicial Committee of the Privy
Council, or by this Court, in those
cases. In my opinion, there is no-
thing in this sub-sec. 8, sec. 92, or
in any part of the B. N. A. Act,
which calls for or justifies any
qualification of the language of
their Lordships of the Privy Coun-
cil, as above cited from their judg-
ment in Russell *0. The Queen;
and the principle established by
that judgment is, in my opinion,
that jurisdiction over the prohibi-
tion of the trade in intoxicating
liquors, whether it be in the manu-
facture thereof, or in the importa-
tion thereof, or the sale thereof,
either by wholesale or retail, is not
vested in the provincial legislatures,
but is exclusively vested in the Do-
minion Parliament. If the provin-
cial legislatures have jurisdiction
to prohibit absolutely the sale of
intoxicating liquors, it must, I
think, he admitted that they have
like jurisdiction over the manufac-
turing and also over the importa-
tion thereof ; nay, more, as the Act
gives them no more jurisdiction over
the prohibition of the exercise of one
trade than another, they would
equally have jurisdiction to pro-
hibit the manufacture of tobacco,
cigars, &c., the importation of
opium, and the manufacture, im-
portation, and sale of any article of
trade, and so, in fact, they would
have that sovereign legislative
jurisdiction over every trade, and
over those general subjects in
which the people of the confede-
racy as a whole are interested, and
thus the main object which the
authors and founders of the con-
federacy had in view in framing
the terms and the provisions of
our Constitution as to the distribu-
tion of legislative jurisdiction over
the Dominion Parliament and the
legislatures of the provinces would
be defeated. In addition to the
ground upon which their Lord-
ships of the Privy Council pro--
ceeded in Russell v. The Queen,
this Court held, as already obser-
ved, in Fredericton v. The Queen
that exclusive jurisdiction over the
prohibition of the sale of spirituous
liquors, which was the subject-
matter of legislation in the Canada
Temperance Act, 187 8, was a sub-
ject placed expressly under the
exclusive jurisdiction of the Do-
B.N.A. ACT, S. 92 (9).—-MARRIA.GE, &e.
179
minion Parliament by sec. 91, sub-
sec. 2, of the B. N. A. Act. That
judgment has never been reversed,
nor, in my opinion, shaken, and
while it stands unreversed by Im-
perial authority, I consider this
Court to be bound by it. If ever
it should be reversed, it will, in my
opinion, be a matter of deep regret,
as defeating the plain intent of the
framers of our Constitution and im-
perilling the success of the scheme
of confederation. Upon the whole,
then, in answer to the several ques-
tions submitted to us, I am, for the
reasons above stated, of the opinion
that upon principle—that is to say,
upon the true construction of the
B. N. A. Act apart from all an-
thority—and upon authority, that
is to say, upon the authority of the
judgment of the Privy Council in
Russell r. The Queen, apart from
Fredericton 'v. The Queen, and
upon the authority of the judgment
of this Court in Fredericton 'v. The
Queen, apart from Russell 1*. The
the Queen, several questions sub-
mitted to us must be all answered
in the negative.”
Sedgewick, J. : “ A study of sec-
tions 91 and 92 of the B. N. A.
Act leads one to the conclusion
that the following proposition may
be safely adopted as a canon of
construction, namely, when a gen-
eral subject is assigned to one
legislature, whether federal or pro-
vincial, and a particular subject
forming part or carved out of that
general subject is assigned to the
other legislatures, the exclusive
right of legislation, in respect to
the particular subject is with the
latter legislature. For example,
Parliament has ‘ marriage,’ but the
legislatures have the ‘ solemnization
of marriage.’ On that subject they
are paramount and supreme. So,
too, the legislatures have ‘ property
and civil rights,’ words in them-
selves as wide almost as the whole
ﬁeld of legislation; but parcelled
out from that wide ﬁeld, Parliament
has a number of particular and
speciﬁc subjects where it likewise
is paramount and supreme. Among
them is the ‘ regulation of trade and
commerce.’ So far, Parliament has
complete and exclusive jurisdiction
as to that. But we have to go fur-
ther. We have to turn again to
see. 92, and we ﬁnd that shop,
saloon, tavern, auctioneer, and other
licenses, a subject carved out of
‘ trade and commerce,’ is given to
the legislatures. If the principle
above enunciated is sound, then
Parliament can only regulate the
liquor trade, or legislate in respect
to it, subject to the paramount and
controlling right of the local legis-
latures in respect to liquor licenses
for revenue purposes. The enu-
meration and assigning of the par-
ticular subject to the one body over-
rides and controls the other body,
although charged with the general
subject, and that, too, without refer-
ence to the question of subordina-
tion or co-ordination between the
two bodies. Another principle of
construction in regard to the B. N. A.
Act must be stated, namely, it being
in effect a constitutional agreement
or compact or treaty between three
independent communities or com-
monwealths, each with its own par-
liamentary institutions and govern-
ments, effect must, as far as possible,
be given to the intention of these
communities when entering into the
compact to the words used as they
understood them, and to the ob-
jects they had in view when they
asked the Imperial Parliament to
pass the Act. In other words, it
must be viewed from a Canadian
standpoint. Although an Imperial
Act, to interpret it correctly refer-
ence may be had to the phrase-
ology and nomenclature of precon-
federation, Canadian legislation, and
jurisprudence, as well as to the his-
tory of the Union movement and to
the condition, sentiment, and sur-
roundings of the Canadian people
at the time. In the B. N. A. Act
it was in a technical sense only
that the Imperial Parliament spoke ;
it was there that in a real and sub-
stantial sense the Canadian people
ATT.-GEN. or
ONTARIO 2'.
A'l‘T.-GEN. or
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
SEDGEWICK, J.,
for invalidity.
M2
180
B.N.A. ACT, s. 92 (9) .—PERPETUITY OF RIGHTS.
Arm-Gnu. or
ONTARIO 'v.
ATT.—GEN. OF
THE DOMINION,
&C.
Prohil )itory
Liquor Laws.
Snnsnwrcn, J.
spoke, and it is to their language
as they understood it that effect
must be given. Can a local legis~
lature absolutely prohibit the traffic
in intoxicating liquors? That is
the substantial question before us.
The correct solution of the problem
is largely affected (although not
concluded) by the meaning that is
to be given to the words ‘ the regu-
lation of trade and commerce ’ in
sec. 91. That these words in their
plain and ordinary meaning are
wide enough to include the liquor
traﬁic is unquestioned. The mak-
ing of liquor, its sale, that is a
trade or business; the dealings in it,
the buying and selling of it for pur-
poses of proﬁt, that is commerce.
But was this particular trade, the
liquor business, intended to be in-
cluded in the general words ? That
is the question. And, as I have
already suggested, the true answer
is to be sought not so much from
the rules of statutory construc-
tion laid down in the text-books
in regard to ordinary enactments, as
by reference to provincial statutes
and jurisprudence at the time of
the Union, and to the circumstances
under which that Union, as well as
its particular character, took shape
and form. I t was in 1864 the Que-
bec Convention was held; Upper
and Lower Canada, Nova Scotia,
New Brunswick,Prince Edward Is-
land, and Newfoundland,were repre-
sented. The Quebec resolutions were
passed, and these resolutions hav-
ing been adopted by the three
legislatures of Canada, Nova Scotia,
and New Brunswick, formed the
basis of the Union Act, 1867. The
Union was a federal, not a legisla-
tive Union. The English speak-
ing provinces (considering Upper
Canada as a province) were in the
main in favour of a legislative
Union, but Lower Canada, pro-
perly tenacious of ‘its language, its
institutions, and its laws,’ secured as
they had been by international treaty
and Imperial enactment, desired a
provincial legislature in order to
the perpetuity of these rights,
rights which it was thought might
be invaded were they to be left to the
mercy of a sovereign and untrain-
melled legislature, the large majority
of which would necessarily belong
to the English-speaking race. And
so the question was a federal Union
or none at all. That being decided,
the question of distribution of
powers arose. To what powers
shall the Federal Parliament suc-
ceed? what powers shall the pro-
vincial legislatures retain? The
American Civil War was just clos-
ing, a conﬂict which, from a legal
standpoint, had its origin in a dis-
pute as to the Constitution of the
United States, the question of
State rights; that controversy was
not to be a ground of strife in the
new nation, and so, ﬁrst and fore-
most, it was agreed that the central
Parliament was to have plenary
legislative authority, and that the
local legislatures should have juris-
diction over such subjects alone as
were expressly enumerated and in
terms assigned to them. I have
said that the Lower Canadian dele-
gates were determined to maintain
their peculiar institutions by means
of a local legislature, but they were
none the less desirous of giving the
central authority all jurisdiction
compatible with that determination,
including generally those subjects
that would be common to the whole
Canadian people irrespective of
origin or religion. Now, the Eng-
lish criminal law was the law of
Lower Canada; it had become
part of that law in 1764, and Lower
Canada was satisﬁed with it. It
would, therefore, be the common
heritage of the New Dominion,
and by common consent it was
given as a subject of jurisdiction
to the central Parliament. Then,
too, the. Lower Canadian Legisla-
ture and people had long previously
adopted of their own free will the
general principles of English com-
mercial law. As early as 25 Geo.
3. (17 85) they had made the laws
of England the rules of evidence
in all commercial matters. They
B.N.A. ACT, s. 92 (9).-—REGULATION INoLUnEs.
181
had adopted practically without
variation the English law respect-
ing bills of exchange and promissory
notes, partnerships, the limitation
of actions in commercial cases, and
even the Statute of Frauds. In 1864
they had accepted a general law of
bankruptcy, limited, however, to
traders only, and had previously
adopted the practice of the English
courts in the trial of commercial
cases ; commercial law was not in
that class of institutions and laws
which they regarded as peculiarly
their own, and they were willing
and anxious, seeing how the future
progress and prosperity of the
country would largely depend upon
its trade and commerce, upon the
growth, manufacture, and inter-
change of commodities throughout
the whole Dominion, irrespective
of and untrammelled by provincial
boundaries or provincial enact-
ments, that the Federal Parliament
should alone legislate in respect
thereto, so that as there would be
a common criminal law throughout
Canada, there should be a common
commercial law as well. And that
was, in fact, the common aim and
object of all the provinces. But
how give expression to this aim?
In making that clear what form of
words should be used? A ques-
tion not difficult of solution. Five
years previously the statute law of
the then province of Canada had
been revised, consolidated, and
classiﬁed in three volumes, one
volume containing the statute law
common to the united province,
the others the statute law applicable
exclusively to Upper and Lower
Canada respectively. This revision
and classiﬁcation, the work of the
most eminent jurists in the pro-
vince, became, by Act of Parlia-
ment, the statute law of the coun-
try, the classiﬁcation having the
same legal force as the statutes
classiﬁed, just as if there had been
a substantive enactment to the
effect that thereafter in Canadian
legislation the speciﬁcation of a
general subject in the general clas-
siﬁcation should include all the spe-
ciﬁc and particular subjects enu~
merated under that speciﬁcation.
Reading this classiﬁcation in the
three volumes referred to, and com-
paring it with secs. 91 and 92, in-
dubitable evidence will be found
that the compilers of the Quebec
resolutions were largely aided by
the work of 1859 in the selection of
words by which the distribution of
powers was described. The lan-
guage of a large proportion of the
45 enumerated subjects is substan-
tially identical with the language
of the classiﬁcation in the Canadian
consolidation. Now let us examine
this classiﬁcation. In the consoli-
dated statutes of Canada, the whole
subject-matter of legislation is divi-
ded into 11 titles, of which ‘ Trade
and Commerce ’ is the 4th. Under
this title are included, among
other subjects, navigation, inspec-
tion laws in relation to lumber,
ﬂour, beef, ashes, ﬁsh, leather,
hops, &c., weights and measures,
banks, promissory notes and bills
of exchange, interest, agents, limi-
ted partnerships, and pawnbrokers.
In the consolidated statutes of
Upper Canada, under ‘Trade and
Commerce’ are included, among
other subjects, commercial law,
written promises, chattel mort-
gages, and trading and other com-
panies. And in the consolidated
statutes of Lower Canada, under
the same designation of ‘ Trade
and Commerce ’ are included
the inspection of butter, the mea-
surement and weight of coals,
hay and straw, partnerships, the
limitation of actions in commer-
cial cases, and the Statute of
Frauds. Let us now turn to Nova
Scotia. A few weeks before the
Convention in Quebec the Nova
Scotia Legislature had passed the
Revised Satutes of Nova Scotia,
3rd Series, divided, as in the
case of Canada, into parts, titles,
and chapters. One of the titles is,
‘ of the regulation of trade in certain
cases,’ and under it are, among
others, the following subjects:—
ATT.-GEN. or
ONTARIO v.
Arr-GEN. OF
THE DOMINION,
85C.
Prohibitory
Liquor Laws.
SEDGEWIOK, J.
182 B.N.A. ACT, s. 92 (9).—PARSONS’ CASE EXAMINED.
A'mn- GEN. or
ONTARIO o.
A'r'r.-GEN. or
THE DOMINION,
850.
Prohibitory
Liquor Laws.
SEneEwIcK, J.
Partnerships, factors and agents,
bills of exchange, currency, mills
and millers, regulation and inspec-
tion of merchandise, weights and
measures. This classiﬁcation was
practically the same in the ﬁrst
revision in 1851, so that for at
least thirteen years the expression
‘ regulation of trade’ had no un-
certain meaning. In the Revised
Statutes of New Brunswick of
1854 there was practically the
same classiﬁcation. Under ‘ the
regulation of trade in certain
cases ’ were included statutes re-
lating to lime, bark, ﬂour, weights
and measures, and lumber, the In-
terpretation Act, e. 161. s. 35,
enacting that parts, titles, &c.,
should be deemed as parts of the
statutes. It will be observed that
in no case is reference made to the
liquor traffic under ‘ trade and
commerce’ or ‘regulation of
trade.’ In the Canadian Con-
solidation it is placed under ‘ Re-
venue and Finance,’ sub-head
‘provincial duty on tavern keep-
ers.’ In the Upper Canada Con-
solidation it is referred to in the
Municipal Act, e. 54., 1866, and
in two ways: ﬁrst, under the head
of ‘ shop and tavern licenses; ’
and, secondly, under the head of
‘prohibited sale of spirituous
liquors.’ In the Lower Canada
Consolidation it is referred to
under ‘ﬁscal matters.’ ‘ In the
Nova. Scotia revision under ‘the
public revenue; ’ the Revised Sta-
tutes of New Brunswick containing
no chapter regulating the liquor
traﬁic. Now, we have here, I think,
a clear indication of what at the
time of confederation the Canadian
people and legislature understood
to be included within the words
‘ trade and commerce.’ They in-
cluded unquestionably the carry-
ing on of particular trades or
businesses, and, I think, commer-
cial law generally. The actual
legislation under ‘trade and com-
merce ’ in regard to certain staple
articles of commerce, such as
bread, ﬁsh, coals, 850., indicates
that any other legislation in the
same line respecting any other
article of commerce would come
under the same description; so I
take it that the regulation of the
liquor traffic, whether by licensing
it or prohibiting it altogether, has
to do with ‘trade and commerce.’
Such being the state of the exist-
ing legislation, and the view that
the different legislatures had of
the all-inclusiveness of the phrases
‘trade and commerce’ and ‘regu-
lation of trade,’ what better collo-
cation of words could be used for
the purpose of making it clear
that Parliament was to. have ex—
clusive jurisdiction in all matters
relating to trade and relating to
commerce, including the importa-
tion, manufacture, and sale of all
kinds of commodities, than that
combination of the two phrases,
the one from the seaboard, the
other from the inland provinces,
to be found in sec. 91, ‘ the regu-
lation of -- trade and commerce.’
And the words having that mean-
ing having been placed there for
that object, are we not bound to
give them the intended effect? I
am not attempting even to criti—
cise the correctness of the conclu-
sion to which their Lordships of
the Privy Council came in Citizens’
Insurance Co. v. Parsons case.
I may be permitted, however, with
all deference, to suggest that some
of the considerations to which I
have referred were not presented to
their Lordships when the effect of
the words under review was be-
ing discussed. All I suggest is
that, inasmuch as the B. N. A.
Act was an Act materially affect-
ing, modifying, repealing pre-exist-
ing Canadian statute law, and re-
volutionising the constitution of
the component provinces, in inter-
preting that Act reference may and
must be had to provincial statute
law rather than to Imperial statute
law, and that where, as in the pre-
sent case, the constitutional Act
uses a phrase which for years had
had a well-deﬁned meaning in Cana-
B.N.A. ACT, s. 92 (9) .-“ COMMERCIAL,” WHAT?
183
dian legislation, that is the mean-
ing which should be given to it
when used in that Act. And I
have this further observation to
make. The judgment referred to
contains the following: ‘If the
words (trade and commerce) had
been intended to have the full
scope of which, in their literal
meaning, they are susceptible, the
speciﬁc mention of several of the
other classes of subjects enume-
rated in sec. 91 would have been
unnecessary; as 15 banking, l7
weights and measures, 18 bills of
exchange and promissory notes,
19 interest, and even 21 bank-
ruptcy and insolvency.’ Now cir-
cumstances existing in Canada,
the then state of jurisprudence,
for example, rendered it wise, if
not absolutely necessary, that the
classes just referred to should be
speciﬁcally mentioned. The pro-
vinces had ‘ property and civil
rights’ given to them. In one
phase or another almost every
enactment in some way aﬁects pro-
perty and civil rights; the raison
d’étre of constitutional society,
the motzf of the social contract, is
the protection of property and civil
rights. Criminal law, ﬁscal law,
commercial law, in fact, all law at
some point or in some way, touches
or affects property and civil rights.
Leave out several of the subjects
mentioned in sec. 92 and there
would have been a perpetual con-
ﬂict between ‘property and civil
rights ’ on the one hand, and many
of the enumerated subjects of sec.
91 on the other; so wisdom sug-
gested ea: abundanti cautela what
was done.
“ Besides, in Lower Canada there
had been a long course of juris-
prudence as to what constituted ‘ a
commercial matter.’ Some business
transactions were held to be com-
mercial matters, others not. In a
dispute between an oﬁicer of the
British Army and his wine mer-
chant, a promissory note given for
a wine bill was held to be a non-
commercial matter. So, I suppose,
interest on such a note would be
held to be non-commercial. Nor
would the case be altered if the
note were discounted at a bank.
All these questions, and difficult
and important many of them have
been, were wisely ended, so far as
the Constitution was concerned,
when banking, bills and notes and
interest were expressly given to
the Dominion. So, too, with
weights and measures, the duty of
making bye-laws or enforcing sta-
tutes in respect to weights and
measures was in some cities and
provinces under municipal control.
The question would be, Is this sub-
ject a matter of ‘trade and com-
merce ’ or a municipal matter? Its
insertion in sec. 91 settled it. And,
lastly, as to bankruptcy and insol-
vency. This subject was wisely
inserted in sec. 91, in view of the
fact already pointed out, that in
Lower Canada bankruptcy legis-
lation applied to traders only (the
phrase ‘insolvent’ being limited
in its use to non~traders); and in
view, too, of the further fact that
in the jurisprudence of the United
States, where the Constitution gave
‘ the matter of bankruptcies’ to
Congress, it was held that ‘insol-
vency ’ belonged to the State legis-
latures. The insertion of both in
sec. 91 settled for Canada that
particular question. I have ven-
tured to make these observations
merely with the view of inviting
further consideration and investiga-
tion as to the proper functions and
jurisdiction of the federal autho-
rities in regard to ‘ trade and com-
merce,’ and to the line of delimi-
tation between that subject and
‘property and civil rights.’ As-
suming, however, that the pro-
hibition of the liquor traffic is a
matter of ‘ trade and commerce,’
the question is not ended. ‘Pro-
perty and civil rights ’ is controlled
by ‘ regulation of trade and com-
merce’ ; but is there anything in
sec. 92 which controls or modiﬁes
‘ trade and commerce ’? In my view
there is much. First there is ‘ Direct
ATT.-GEN. or
ONTARIO 'v.
ATT.-GEN. or
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
SEDGEWICK, J.
184.‘
B.N.A. ACT, S. 92 (9).-A FALLAOIOUS THEORY.
Arr-GEN. or
ONTARIO 'v.
ATT.—GEN. or
'I‘IIE DomNioN,
81C.
Prohibitory
Liquor Laws.
Snnonwrcx, J.
taxation within the province in
order to the raising of a revenue
for provincial purposes.’ That in-
volves the right of taxing, even
unto death, institutions incorporated
under Dominion law (as was decided
by the Privy Council in Bank of
Toronto 0. Lambe, 12 App. Cas.
5'7 5) [see ante, sub-sec. 2], such in-
stitutions obtaining corporate rights
in all cases excepting banks, not
because of any express powers
given to Parliament, but either
under ‘ trade and commerce’ or
under its general authority to legis-
late in respect to ‘peace, order, and
good government,’ it being clear
that the legislatures may incorporate
such companies as are formed for
provincial objects only [sub-sec. 1 l].
Secondly,there is sub-sec. 9. ‘ Shop,
saloon, tavern, auctioneer, and other
licenses, in order to the raising of
a revenue for provincial, local, or
municipal purposes.’ The effect of
this sub-section is practically to
give the regulation of the liquor
traffic to the legislatures. So long
as such regulating legislation has
as its main object the raising of
revenue, it may contain all possible
safeguards and restrictions as
ancillary to the main object, the
effect of which may be to repress
drunkenness and promote peace,
order, and good government gene-
rally. If, however, a fair examina-
tion of an Act purporting to be
of this kind leads inevitably to
the conclusion that the object of
the legislature in passing it was not
the raising of revenue and the
licensing and regulating of the
traﬂic for that purpose, but the
suppression of the tratﬁc altogether,
in other words, that it was intended
to be not regulative but prohibitory,
such an Act will ﬁnd no support
for its validity from this sub-section,
———I will presently inquire whether
that support can be found else-
where---and, a fortiori, the legis-
latures cannot under this article
pass an Act of absolute prohibition,
for that would be in direct conﬂict
with the expressed object for which
the power was solely given. The
destruction of the traﬂic would en-
tail the destruction of the revenue,
not the raising of it.
“Except for the decision of
the Judicial Committee in Russell
'0. The Queen, 7 App. Cas. 829 [see
ante, p. 129]——the Scott Act case
——-much might be said to favour
the view that the right of the legis-
latures to regulate the liquor traﬂic
for revenue purposes was unlimited,
and could not be taken away by
virtue of anything in sec. 91,
whether ‘peace, order, and good
government,’ or ‘ trade and com-
merce,’ or even ‘ the criminal law ’ ;
that the central Parliament could
not by virtue of any of its powers
destroy a special power given to the
local legislatures for a special and
particular purpose, and that the
Scott Act (Russell 11:. The Queen)
itself was an infringement of the
provincial rights. It might be
urged that neither body could of
itself, by virtue of its given powers,
pass a prohibitory law, but that in-
dependent legislation on the part
of both would be necessary, the
Dominion passing an Act prohibiting
the traffic in so far only as it had
right to prohibit it, but reserving
to the provinces the fullest and
freest right under sub-sec. 9 to raise
revenue from it, and the provinces
thereon passing legislation abro-
gating the license system, and sur-
rendering their right to revenue
from it. The theory that if, under
our Constitution, one body cannot
pass an Act upon any given subject
the other necessarily can, is a
fallacy. A subject may be so com-
posite in its character, may be
formed of one or more elements as-
signed to the one legislature, and of
one or more elements assigned to
the other, that neither one can
effectually deal with the combina-
tion. For example, neither legis-
lature could pass an Act abolishing
the direct taxation for municipal
purposes and authorizing the raising
of revenue by means of octroz', or
imposts, upon all goods coming in
B.N.A. ACT, s. 92 (9).-—PUBLIC MIND AT UNION.
185
through the city gates, or an Act
authorizing a province to raise and
collect its revenue by indirect taxa—
tion. This disability is a necessary
incident of the federal system, and,
if it is to be got rid of, that can
only be effected by abolishing the
system itself. The view which has
pressed itself upon my mind is
that prohibition may be a question
of that character, but as it was
not so held in Russell 1;. The
Queen, and as it does not substan~
tially affect the result of this refer-
ence, I take it for granted that the
fallacy to which I have referred
is not an element in the present
case. The question now arises:
Is the general right of the Federal
Parliament to legislate in regard
to the liquor traffic further re-
strained by sub-sec. 8 of sec. 92,
‘ municipal institutions in the pro-
vince’? In other words, can a
provincial legislature, by virtue of
that sub-section, absolutely prohibit
the trafﬁc? At the time of the
Union, the province of Canada had
given to municipalities in both
sections the right of passing bye-
laws prohibiting the sale of liquor.
In that province there was also
then in force an Act known as the
‘ Dunkin Act,’ an enactment similar
in scope and object to the present
Canada Temperance Act, the prin-
ciple of local option being allowed
to operate to its fullest extent.
But neither in Nova Scotia nor in
New Brunswick (as I understand
the facts) did local option prevail.
It is true that an applicant for
license had to comply with certain
conditions, one of them, in Nova
Scotia, being that his application
had to be accompanied by a petition
from a ﬁxed proportion of the rate-
payers of the locality. To that ex-
tent only did local option (if that is
local option) exist. Such was then
the state of the law; but some
historical facts may also be men-
tioned as having relation to the
matter. The question of prohibition
had then for years been a vital
political question in the maritime
provinces; the public mind had
been in a perpetual state of turmoil
about it. The ablest statesmen of
the time had been in public anta-
gonism over it. Elections had been
won and lost upon it. For two suc-
cessive years prohibitory legislation
had been introduced in the Nova
Scotia Legislature, and a Bill of that
character was on one occasion suc-
cessfully carried through the Lower
House. In New Brunswick a
prohibitory law had actually passed,
and remained in operation for a year.
It was then repealed, with a rever-
sion to license law. Such, then, was
the attitude of the public mind in
two of the three confederating pro-
vinces at the time of the Union.
What meaning, then, is to be given
to ‘ municipal institutions in the pro-
vince’? Three answers may be
advanced. First, it may mean that
a legislature has power to divide
its territory into deﬁned areas, con-
stitute the inhabitants a municipal
corporation or community, give to
the governing bodies of oﬂicers of
such corporations or communities
all such powers as are inherently
incident to or essentially necessary
for their existence, growth, and de-
velopment, and confer upon them
as well all such authority and
jurisdiction as it may lawfully do
under any of the enumerated sub-
sections of sec. 92. That is the
narrowest view. Or, secondly, it
may mean that a legislature may
also confer upon municipalities, in
addition to these powers, all those
powers that were possessed or enjoyed
in common by the municipalities or
municipal communities of all the
confederated provinces at the time
of the Union, the jus gentlum
of Canadian municipal law ; or,
ﬁnally, it may mean that a legisla-
ture may confer upon municipalities
all those powers which in any
province, or in any place in a pro-
vince, any municipality at the time
of the Union, as a matter of fact,
possessed by virtue of legislative or
other authority. And the argument
in the present case is, that because
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. or
run DOMINION,
8:0.
Prohibitory
Liquor Laws.
SEDGEWIOK, J.
186
B.N.A. ACT, s. 92 (9).——-SPECIAL PROVISIONS.
ATT.~GEN. or
ONTARIO 'v.
Arr-GEN. OF
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
SEDGEWICK, J.
at the time of the Union one of
the three provinces had given the
right of local prohibition to muni-
cipalities, it must be assumed that
the framers of the Act, and all the
provincial legislatures as well as
the Imperial Parliament itself, must
have intended by the use of the
phrase ‘ municipal institutions ’ to
give to the local legislatures the
right to pass prohibitory legisla-
tion, and that, too, without refer-
ence to municipalities at all. I dis-
sent from this wide proposition.
The ﬁrst view, in my judgment,
is the proper one, a view which
gives scope for liberal interpreta-
tion as to what may constitute the
essence of the municipal system,
and give due eﬁect in that direction
to the municipal jus gentium of
the three old provinces; and I
entertain the strongest doubt if
it ever was contemplated, by the
use of the words ‘ municipal insti-
tutions,’ to make any particular
reference to the liquor traﬁic at all.
The following considerations point,
I think, in that direction.
“ (a) The question of liquor traﬂic
was dealt with, and I think disposed
of, by sub-sec. 9 in relation to license.
In the Quebec resolutions, and in
the proceedings of the three assent-
ing legislatures, the sub-section
read, ‘ shop, saloon, tavern, auctio-
neer, and other licenses,’ only: the
limitation as to revenue was an
addition made in London, with the
assent of the Colonial delegates
there [Pope’s life of Sir J. Mac-
donald, App], just before the
Act became law. The article as
ﬁrst framed would have had a
much broader application than it
has in its present shape, and possibly
might have given prohibitory
powers to the legislatures, and I
can only suggest that the limita-
tion was imposed for the very
purpose of clearly limiting the
provinces to regulation only. Be-
sides, if the right to prohibit as
well as to regulate is involved in
‘ municipal institutions,’ if that
phrase includes all powers pre-
viously given to municipalities, in-
cluding the issuing of all licenses
referred to in sub-sec. 9, why
particularly specify these licenses
in a separate sub-section? I have
always understood it to be a rule
of statutory construction, that
where special provisions are made
in regard to a particular matter,
and there are in the same statute
general provisions broad enough
apparently to cover the same
matter, the special provisions
govern, not the general; the par-
ticular intent prevails.
“ (b) The collocation of sub-sec-
tions 8 and 9, and the sources from
which the phraseology was pro-
bably taken, point to the same con-
clusion; the sub-section relating to
licenses follows the one relating to
municipal institutions, as if the
former were of the less moment.
In the Municipal Act of Upper
Canada (1866), at p. 583, there
is a sub-title, ‘ Shop and tavern
licenses,’ and in the same section,
and on the same page, there is
another sub-title, ‘ Prohibited sale
of spirituous liquors.’ May it not
be properly suggested that this
particular subject was designedly
omitted?
“ (0) Considering that the ques-
tion of prohibition was a vital
social and political question (and
almost as much so in 1864 as to-
day); considering especially the
history of the question in the lower
provinces, I can scarcely bring my-
self to believe that it was omitted
from sec. 92 by reason of ‘muni-
cipal institutions ’ containing it. If
it had been intended that the pro-
vinces should have it, it would
have been expressly enumerated.
Regulations by means of license
was. Why omit prohibition?
“ The jurisprudence on the
question also throws light. In
Keefe v. M‘Lennan, decided in
Nova Scotia in 1876, nine years
after confederation, a most able
judgment was delivered by the
learned equity judge upon the
whole question, and neither ‘in the
B.N.A. ACT, s. 92 (9).--P()WERS TAKEN AWAY.
187
argument nor in the judgment was
it even suggested that the power
claimed came under ‘ municipal in-
stitutions.’ The same observation
applied to Fredericton v. The
Queen, in the Supreme Court,
New Brunswick, 3 Pugs. & B.
139.
“Why this long silence? The
words ‘ municipal institutions ’
were there in sec. 92, as promi-
nent then as now, but no one in the
maritime provinces ever dreamed
that ‘prohibition ’ was concealed or
wrapped up Within them.
“Their Lordships of the Privy
Council seemed of like opinion in
Russell r. The Queen, decided in
1882, even although at that time
Slavin r. Orillia, 36 U. C. Q.
B. 159, had been decided in the
Queen’s Bench of Ontario, and the
question was at the argument ex-
pressly raised, as stated by the pre-
sent Lord Chancellor (Lord Her-
schell) at the argument of the
M‘Carthy case [see ante, p. 157
I take the reason to be that the
phrase ‘municipal institutions’ had
no such broad meaning as is now
contended for.
“ (9) But there are more weighty
considerations than these. Prior
to the Union powers of many
diverse kinds and varieties were
from time to time given to muni-
cipalities. The legislatures con-
ferring them were then supreme.
There was then no possible ques-
tion of jurisdiction or right of
legislation; their authority was as
unfettered as that of the Imperial
Parliament itself. And so it hap-
pened that many municipal coun-
cils had authority to deal with
matters since transferred to the
central Parliament; for example,
weights and measures, the inspec-
tion of staple articles of commerce,
the regulation and control of navié
gable rivers, and, in the case of St.
John, N.B., and of the whole of
Upper Canada, of public harbours.
The preparation of the electoral
lists was for the most part with
them. In some instances they had
authority to deal with the criminal
law, with the violation of the dead,
and cruelty to animals, and so in
many other cases they possessed
powers in respect to subjects now
transferred to Parliament. When
the change came, and the ﬁeld of
legislation was parcelled out, one
portion to the Dominion and the
other to the provinces, the muni-
cipalities retained all their powers,
but the local legislatures did not.
If before the Union they had
given a municipal council power
to regulate a harbour, or to make
a bye-law respecting weights and
measures, they lost the power of
taking it away by virtue of the
Union Act, the right being trans-
ferred to Parliament alone. There
can be no doubt about this; the
possession by a municipality of a
certain power at the time of the
Union atfords no guide in the in-
quiry as to which legislature may
subsequently deal with it. The
only test is : Is the power referred
to within the subjects of 91 or of
92? Regulations made by Domi-
nion law as well as by local law
must be enforced by some sort of
machinery. Parliament, I think,
may use existing municipal ma-
chinery for this purpose; may, in
respect to those subjects committed
to it, such, e.g., as weights and
measures, the ﬁsheries inspection,
navigation, &c., give to municipal
councils power to make bye-laws.
But, however this may be, it is
out of the question, it is absolutely
futile, to argue that because before
confederation the old legislatures
had given power to the munici-
palities to make regulations in re-
spect to certain subjects, they still
have that power, although with
their consent these powers were by
the constitutional Act, in so many
words, taken from them and given
exclusively to Parliament. It fol-
lows, then, that if prohibition is
not an essentially component part
of the subject-matter described by
the phrase ‘ municipal institutions,’
and is ‘a regulation of trade and
Arr-Gm. or
ONTARIO o.
ATT.-GEN. or
THE DoMINIoN,
&c.
Prohibitory
Liquor Laws.
SEDGEWICK, J.
188
B.N.A. Ao'r, s. 92 (9).—M0CARTHY ACT (1883—.4).
ATT.-GEN. or
ONTARIO v.
Arr-Gm. or
TI-IE DOMINION
860.
Pl‘OhlbltOl'y
Liquor Laws.
SEDeEwIcK, J.
commerce,’ it is a matter for Par-
liament alone to deal with.
“ (f) But it is argued that what
is called ‘ the police power ’ is pos-
sessed by the provinces under
‘municipal institutions,’ and that
the right in question is a mere in-
cident of the ‘ police power.’ Now,
if by ‘police power’ is meant the
right or duty of maintaining peace
and order, and of seeing that law,
all law, whether of Imperial, fede-
ral, or local origin, is enforced and
obeyed, then I agree that that
power is wholly with the provinces.
But it is with them, however, not
because it specially belongs to
‘municipal institutions,’ but be-
cause they are charged with the
‘administration of justice.’ The
legislatures may delegate this duty
to municipal functionaries, but the
mode of administration is purely a
matter of provincial concern.
“ If, however, that wide meaning
is given to the ‘police power’
which the jurisprudence of the
United States has given to it, the
power of limiting or curtailing
without compensation the natural
or acquired rights of the individual
for the purpose of promoting the
public beneﬁt, the power, for in-
stance, which enables a State legis-
lature to regulate the operation and
tolls of a grain elevator in Chi-
cago, or to compel a company to
use interlocking switches upon its
line of railway—then, I say, the
provinces do not exclusively pos-
sess it. It is the common posses-
sion of both, to be exercised by
both in their respective domains
for the common weal.
“ (g) The cases decided in the
Privy Council, in my view, practi-
cally conclude the question. Russell
'0. The Queen decided that the Canada
Temperance Act, a prohibitory Act,
was such an Act as the Dominion
Parliament might properly pass. It
has been put forward I have already
suggested that provision should
have been made for the preserva-
tion of the provincial right to raise
a revenue by means of liquor
licenses; but that judgment is con-
clusive, as it decides in so many
words that the Act in question
‘does not fall within any of the
subjects assigned exclusively to the
provincial legislatures.’ The judg-
ment of the Privy Council on the
McCarthy Act was inevitable.
That Act unquestionably was an
invasion of provincial rights. Its
provisions were regulative only. It
purported to legislate in respect to
liquor licenses and the raising of
revenue therefrom, as well as to
municipal regulations theretofore
prescribed under provincial legis-
lation, its practical effect, if valid,
being to make invalid all local sta-
tutes then in force having refer-
ence to the liquor traﬂic. It pur-
ported to create the machinery, to
prescribe the method, by which
the local authorities might raise a
revenue from liquor licenses, a
right unquestionably the preroga-
tive of the provincial legislatures;
and it therefore fell, destroyed by
its own inherent and manifest ille-
gality. In the Hodge case, the ques-
tion there being, Was the Ontario
Provincial Act regulating the traffic
ultra wires of that legislature? the
decision of the Privy Council was
that it was intra ruz'res. When
the McCarthy Act came up, a
Dominion Act also purporting to
regulate the traﬂic, the Privy
Council, as a necessary sequence,
held that it was ultra wires of the
Dominion Parliament. It is true
their Lordships in the Hodge case
intimated that the Ontario License
Act came within sub-secs. 8, 15,
and 16 of sec. 92, as doubtless
many of its provisions in one way
or another did; but I do not as-
sume, because sub-sec. 9 was
omitted, that it was intended to be
laid down that that sub-section had
no relation to the subject of legis-
lation. Many of the provisions of
the Act were municipal in their
character, and therefore came un-
der sub-sec. 8; were penal in their
character, and therefore under sub-
sec. 15 ; merely local, and therefore
B.N.A. AOT, 92 (9) .-—-PROHIBITION Too LATE.
189
under sub-sec. 16, but the whole
Act was an Act regulating liquor and
other licenses with a view of rais-
ing a revenue, and therefore under
sub-sec. 9 as well. And there, up
to the present time, so far as our
ultimate appellate tribunal is con-
cerned, and so far as the liquor
trafﬁc is concerned, the question
rests. N ow, having regard to
these decisions of the ﬁnal appel-
late tribunal, I cannot help asking
myself this question: Supposing
the Ontario Legislature passes an
Act absolutely prohibiting the sale
of intoxicating liquors in the pro-
vince, whether by retail or whole-
sale for the present purpose makes
no difference, but making no ex-
ception, as in the Canada Tem-
perance Act, in favour of liquors
sold for sacramental, chemical, or
medical purposes, and that the
Canada Temperance Act is in force,
say, in the city of Ottawa, and
suppose that a lawful sale for such
purpose is made; in that case we
would have Parliament saying the
sale is legal, the Ontario Legisla-
ture saying it is not. Which is
the valid legislation? There can
be but one answer to this question.
Whether the recent decision of the
Privy Council in the Attorney-
General of Ontario o. Attorney-
General of Canada, [1894] A. C.
189, has a bearing upon the pre-
sent case may be questioned. It
was there decided that the Ontario
Legislature, having under ‘ pro-
perty and civil rights’ enacted
certain provisions as to the legal
consequences of a general assign-
ment for the beneﬁt of creditors
the same provisions that in a fede-
ral bankruptcy law as ancillary
thereto might constitutionally be
enacted by the Federal Parliament,
was within its constitutional right,
but only because the Federal Par-
liament had not taken possession
of the ﬁeld by dealing with the
subject. Now, admitting that
under ‘ municipal institutions,’ or
the ‘police power,’ or ‘property
and civil rights,’ a province may
prohibit the traﬁic, can it now do
so in view of the Canada T em-
perance Act? The Federal Par-
liament has already seized itself of
jurisdiction. It has passed the
Scott Act. It has prescribed the
method by which in Canada pro-
hibition may be secured; and is
not any local enactment purporting
to change that method or other-
wise secure the desired end, for the
time being inoperative, overriden
by the expression of the control-
ling legislative will? In my view,
the provincial legislatures do not
possess the right to prohibit the
liquor traffic. Referring now to
the speciﬁc questions set out in the
reference, I have but few obser»
vations to make. I cannot, in the
absence of a speciﬁc enactment on
the subject, recognise any distinc-
tion from a constitutional point of
view between the selling of liquor
and its manufacture or importation.
If it is admitted that a provincial
legislature under ‘municipal insti-
tutions’ has power to absolutely
prohibit the selling of liquor, it
must have incidentally the right of
prohibiting the having of it, and,
as incidental to that right, the
right as well of making or im-
porting it. Neither can I, in the
absence of a speciﬁc enactment on
the subject, recognise any consti-
tutional distinction between sale
by wholesale and sale by retail,
notwithstanding the case of Slavin
v. Orillia; that, apparently,was sub-
sequently conceded with thefull con-
currence and approval of the Privy
Council in ‘the Dominion Liquor
License Act case ’ (the case on the
McCarthy Act). In the light of
which particular provincial candle
are we to investigate the question ?
In Upper Canada a sale of liquor
to the extent of ﬁve gallons, or one
dozen bottles, was considered a
wholesale transaction, the question
as to the origin of the package
being of vital moment, but the
capacity of each bottle immaterial.
In Lower Canada there was no
question as to ‘original packages,
ATT.-GE-N. OF
ONTARIO v.
ATT.-GEN. 0F
TIIE DOMINION,
&c.
Prohibitory
Liquor Laws.
SEDGEWICK, J.
190
B.N.A. ACT, s. 92 (9).—WHIM OF THE PUBLIC.
ATT.-GEN. OF
ONTARIO v.
ATT.-G'EN. on
THE DOMINION,
&c.
Prohibitory
Liquor Laws.
KING, J ., for
oi nvalidity.
but it was doubtless the case that a
sale of three gallons or upwards
was ‘ wholesale,’ the character of a
sale between three gallons and
three half-pints being left doubt-
ful. In Nova Scotia the line
was apparently drawn at ten gal-
lons, but inasmuch as ‘ shop’ li-
censes could not sell in quantities
less than one gallon, and as the
distinction between ‘ wholesale ’
and ‘retail’ did not there receive
express statutory recognition, it is
left an open question whether the
constitutional line between whole-
sale and retail was of one gallon or
ten. In New Brunswick the
minimum amount that a wholesale
license might sell was one pint.
Now, in view of this diverse legis-
lation in the several provinces,
the ﬁve gallons of Ontario, the
three gallons of Quebec, the ten
gallons of Nova Scotia, and the
pint of New Brunswick, how can
this Court arbitrarily deﬁne the
line or ﬁx the limit between a
wholesale and a retail transaction?
How can we, in the exercise of
judicial oiﬁce, determine the de-
limitating boundary? The Con-
stitutional Act, in my view, im-
poses upon us no such duty. It
does not give colour even to the
idea that the right of legislation in
either body is to be determined by
such questions as quantity or qua-
lity; and, in my view, no such
distinction exists. Neither, in my
view, is there any distinction be-
tween those places in Canada
where the Canada Temperance
Act has been put in force, as the
phrase is, and those places where
it has not. The whole Act is an
Act applicable to all Canada. Cer-
tain cities or municipalities may
take advantage of its provisions to
secure the kind of prohibition
therein contemplated, but it is a
law providing for prohibition every-
where. To admit the right of a
legislature to enact a law for the
same purpose applicable only to
localities that have failed to place
themselves under Canadian prohi-
bition, is to make the constitutional
authority of a legislature dependent
on the whim or fancy for the time
being of the public sentiment, a
principle in support of which I
can ﬁnd neither authority or rea-
son. For the reasons stated, I
think the seventh question must
be answered in the negative, and,
in my judgment, an afﬁrmative an-
swer can be given to none.”
King, J. : “ Upon this continent
there are two methods of dealing
with the liquor traffic, namely, by
licence, and by prohibition. The
latter may be general, or exercised
through what is called local option.
The licensing system is one of re-
gulation, with only so much of
suppression as is incidental to re-
gulation. Prohibition has sup-
pression as its primary and distinct
object. N 0 one is likely to con-
fuse the two things. The licensing
system is exclusively within pro-
vincial powers. All that is fairly
incident to its effectual working
goes with it as a branch of local
police power. In Hodge v. the
Queen their Lordships, after sum-
marising the clauses of the Ontario
License Act then in question, say
of them—[reads sentence com_
meneing “These seem” down
to “ B. N. A. Act, 1867,” ante,
p. 141]. The Dominion Parlia-
ment having in 1883 passed a
general Licensing Act applicable to
the entire country, this, with an
amending Act of 1884, was held
ultra wires upon a reference of the
subject to the Judicial Committee of
the Privy Council. Then, with re-
gard to prohibition, the Canada
Temperance Act, R. S. C. c. 106.,
is a local option prohibitory Act.
It gives to each county and city
throughout the country (or elec-
toral division in Manitoba) the
right of determining, by a vote of
the parliamentary electors therein,
whether or not the prohibitory
clauses of the Act shall be adopted.
These clauses prohibit (with some
exceptions not material to be now
stated) the sale of intoxicating
B.N.A. ACT, s. 92 (9).—-H()DGE RE-AFFIRMED.
191
liquors entirely. When locally
adopted they continue in opera-
tion for three years, and thereafter
until withdrawn upon like vote. On
the other hand, a vote adverse to
local adoption bars the subject for
a like period. In The City of
Fredericton v. The Queen the Act
was held valid chieﬂy as relating
to trade and commerce. In
Russell v. The Queen it was sus-
tained on other grounds. Their
Lordships, approaching the subject
from the side of provincial powers,
held that the provisions of the Act
did not fall within any of the
classes of subjects assigned ex-
clusively to the provincial legisla-
tures. It was therefore, in their
opinion, at least within the general
unenumerated and residual powers
of the general Parliament to make
laws for the peace, order, and
good government of Canada in re-
lation to all matters not coming
within the classes of subjects as-
signed exclusively to the provincial
legislatures. It was not doubted,
say their Lordships in Hodge v.
The Queen, referring to their de-
cision in Russell 11. The Queen,
‘that the Dominion Parliament
had such authority under sec. 91,
unless the subject fell within some
one or more of the classes of sub-
jects which by sec. 92 were as-
signed exclusively to the legisla-
tures of the provinces.’ Referring
to the grounds of decision in City
of Fredericton v. The Queen, their
Lordships, who had shortly before,
in Citizens’ Insurance Co. *0. Par-
sons, 7 App. Cas. 96 [see Note,
sub-sec. 2], referred to the words
‘ trade and commerce’ in a way
that is sometim s sought to be
put in opposition to the views of
this Court in The City of Fre-
dericton v. The Queen, say, ‘ We
must not be understood as in-
timating any dissent from the
opinion of the Chief Justice
(Ritchie) of the Supreme Court
of Canada and the other judges
who held that the Act fell within
that section.’ In treating of the
exclusive powers of the provincial
legislatures, sub-sec. 8 of sec. 92,
respecting municipal institutions,
was not in terms referred to in
Russell 1). The Queen, and this
fact has sometimes been
ATT.-G'EN. OF
ONTARIO v.
ATT.-GEN. OF
THE DOMINION,
8:0.
Prohibitory
made use Liquor Laws.
of in the way of criticism of that KING J_
case. Indeed, in the argument of
the Dominion License Act, one of
their Lordships expressed the opi-
nion that clause 8 of sec. 92 had
not been argued in Russell 1). The
Queen, but the counsel then argu—
ing [the present Lord Chancellor,
Lord Herschell, see ante, p. 157],
stated that it appeared from a
shorthand note of the argument
that the point had been distinctly
argued. When City of Fredericton
v. The Queen (which is known to
be substantially the same case) was
before this Court the point was
argued. Lash, Q.C., one of the
counsel for the Act, thus alludes
to the argument as adduced by the
other side: ‘ It is also contended
that this law, having for its object
the suppression of drunkenness, is
a police regulation, and so within
the powers of municipalities,’ &c.
In Reg. 2:. Justices of Kings, 2
Pugs. 535, Ritchie, C.J., had pre_
viously dealt with the like conten-
tion, and in City of Fredericton 'v.
The Queen adhered to that decision.
To that case I beg to refer. But
what is more pertinent is the fact
that after sub-sec. 8 of sec. 92 had
been fully considered and given
effect to in Hodge v. The Queen,
their Lordships, as though it might
be thought to make a difference
with Russell 21. The Queen, took
occasion to re-aﬁirin that decision :
‘We do not intend to vary or de-
part from the reasons expressed for
our judgment in that case.’ Now
it is important to note that the
substantial thing effected by the
Canada Temperance Act is the
suppression of the liquor trade in
municipalities severally by a sepa-
rate vote of each. What is effected
‘ is local prohibition in all its local
aspects. It could not have been
really meant by their Lordships
192
B.N.A. ACT, s. 92 (9).—DOMINION OVERRIDES.
A'rT.-GEN. OF
ONTARIO v.
ATT.—GEN. or
TIIE DOMINION,
&c.
Prohibitory
Liquor Laws.
KING, J.
that this was outside of the classes
of subjects by sec. 92 assigned to
the provincial legislatures simply
by reason of the Act having
operated as a local option Act
throughout Canada, while a pro-
vincial Act is necessarily limited
to the province; that would in-
deed have been a short road to a
conclusion, but it would have con-
fused the boundaries of every sub-
ject of legislation, besides render-
ing unnecessary the particular
provisions of the B. N. A. Act
[sec. 95] respecting concurrent
legislation on certain speciﬁed sub-
jects. This was recognised in the
decision upon the Dominion Li-
cense Act, where it was held that
where a subject, such as the licens-
ing system, is within a class of
subjects assigned exclusively to
the provinces, the Dominion does
not, by legislative provisions re-
specting it applicable to the entire
Dominion, draw it at all within
their proper sphere of legislation.
But it is argued that prohibition may
in one aspect, and for one purpose,
fall within sec. 91, and for an-
other purpose and in another
aspect fall within sec. 92. And
inasmuch as it is not possible for
general words to enter into the
complexities of transactions, and
distinguish entirely one subject
from another in all its relations,
the cases clearly establish that
legislative provisions may be with-
in one or other of these sections,
according as, in one aspect or
another, they may be incidental to
the effectual exercise of the de-
ﬁned powers of Parliament or
legislature. In the effectual ex-
ercise of an enumerated power it
may be reasonably necessary to
deal with a matter which, apart
from its connection with such sub-
ject, would appear to fall within a
class of subjects within the exclu-
sive authority of the other legisla-
ture, and in such case there is the
ancillary power of dealing with
such subject for such purpose, as
explained and illustrated in Att.-
Gen. of Ontario 1). Att.-Gen. of
Canada, [1894] A. C. 200. In
the application of this principle
the Dominion Legislature over~
rides where the same subject is
dealt with through ancillary powers,
and pending the existence of Do-
minion legislation, the provisional
legislation, if previously passed, is
in abeyance. If subsequently pass-
ed it is ultra 'vires. In all such
cases regard is to be had to the
primary purpose and object of the
legislation, and (except in the few
cases where concurrent legislation
is authorized, of which this is not
one) the primary object is to be
obtained through one of the legis-
lative authorities, and not indiﬁer-
ently through either. Now, prohi-
bitory Acts are very simple in their
aim. Those who favour them may
be inﬂuenced by varied motives,
although probably these vary but
little, but the direct, well-under-
stood, and plain purpose is the
suppression of the liquor trade.
This is accustomed to be eifected, not
incidentally in the effectual carrying
out of some larger project of legisla-
tion, or as ancillary to something
else, but as a principal political ob-
ject itself. If this power exist in the
provinces, it must be found either
in the enumeration of sec. 92, or in
what is reasonably and practically
necessary for the eﬁicient exercise
of such enumerated powers (sub-
ject to the provisions of sec. 91),
otherwise it can in no aspect be
within the sphere of provincial
legislation. The power in ques-
tion is not an enumerated one. On
the contrary, what indirect re-
ference there is to the liquor
traffic is made in connection with
the license system, and licensing
does not import suppression, ex-
cept, at most, as incidental and sub-
ordinate to it. Then is the power
to prohibit reasonably or prac-
tically necessary to the efficient
exercise by the province of an
enumerated power? It is urged
that this is so with regard to sub-
sec. 8 respecting municipal insti-
B.N.A. AcT, s. 92 (9).-SUPPRESSION or A TRADE. 193
tutions. The licensing system is
ordinarily associated with that sub-
ject, and licensing is also pointed
at in sub-sec. 9, but there in no in-
herent or ordinary association of
prohibition with municipal institu-
tions. Neither in England nor
the United States is this so. The
state of things in the confederated
provinces at the time of the Union
will be referred to hereafter. ‘Vhat
is reasonably incidental to the ex-
ercise of general powers is often a
practical question more or less de-
pendent upon considerations of
expediency. The several judg-
ments ‘of the Privy Council have
placed the respective powers of the
Dominion and provinces upon the
subject on a wise and practical
working basis; afﬁrming on the
one hand the exclusive right of the
provinces to deal with license and
kindred subjects, and afﬁrming on
the other hand the right of the
Dominion to prohibit, either directly
or through the method of endow-
ing the several provincial munici-
palities with a faculty of accepting
prohibition or retaining license.
Wherein is it reasonably necessary
for purposes of municipal institu-
tions that the provinces should
have like power of suppression, to
be exercised either directly upon
the entire province, or, through the
bestowment of a like faculty, upon
the municipalities? Why (in any
proper constitution) should a con-
siderable trade be subject to pro-
hibition emanating from diﬁerent
legislative authorities in the one
country? The suppression of a
lawful trade impairs the value of
the power to raise revenue by in_
direct taxation. Prima facz'e, the
power which levies indirect taxa~
tion has the power to protect trade
from suppression, and the sole
power of suppression. And in a
system of government where the
provinces receive annual subsidies
out of the Dominion Treasury, it
seems repugnant that the provinces
should, through more implications,
respecting municipal institutions
S 2340.
possess the power to destroy a
large revenue-bearing trade. It is
for the Dominion to determine for
ATT.-GEN. OF
ONTARIO o.
ATT.-GEN. 0F
TIIE DOMINION,
itself whether or not such a trade &c.
shall be suppressed, and if so, how, prohibitory
and to what extent. The Dominion Liquor Laws.
has so expressed itself.
entered every municipality, and
offered to it the suppression within
it of the liquor trade under sanctions
of Dominion law. It is further con-
tended, however, that prohibition
is local and municipal, because that
at the time of the Union two out
of the three original members of
the Union (having then of course
full power of legislation) had
conferred upon the municipalities
a local option of prohibition (with_
in wider or narrower limits), and
had incorporated this provision in
the municipal Acts. Even had
this been general with all the pro-
vinces, I do not think that the
conclusion drawn from it is war-
ranted, in the view of the whole
of the B. N. A. Act; nor, perhaps,
would it support the claim to deal
with the matter otherwise than
through the like method of muni-
cipal local option. But assuming
that a common understanding of
words in an unusual sense might
be inferred from such a state of
things if it had been general, the
fact that in one of the confedera-
ting provinces (New Brunswick)
there was noe such provision de-
prives the argument of the weight
that only an entire consensus could
give to it. In New Brunswick there
were at the Union two groups of
municipal institutions, the repre-
sentative kind (as in Upper and
Lower Canada) throughout part
of the province, and the system
of local government of counties
through the justices in session
(as in Nova Scotia) throughout
the remaining part. But in neither
kind was there vested the power
of suppressing the liquor trade.
The Act in force in New Bruns-
wick was 17 Vict. c. 15., as from
time to time revived and continued
(20 Vict. c. 1.; 33 Vict. c. 2.).
N
It has KING, J.
194
B.N.A. ACT, s. 92 (say-armor OF EXTINCTION.
ATT.—GEN. or
ONTARIO o.
Ara-GEN. on
THE DoMINIoN,
&c.
Prohibitory
Liquor Laws.
KING, J ,
This is important, for temperance
legislation had gone further in New
Brunswick than in any other pro-
vince. In 1855 an Act was passed,
18 Vict. c. 36., prohibiting through-
out the province the Importation,
Manufacture, and Trafﬁc in Intoxi-
cating Liquors. This was repealed
in 1856, 20 Vict. c. 1., amid great
political excitement, and the absence
of local option at the time of the.
Union was not a casual omission.
Nothwithstanding the great weight
of judicial authority the other
way, I cannot in view of this
give to the words ‘municipal in-
stitutions ’ as used in the B. N. A.
Act a meaning not inherent in
them, simply because of this ex-
tension of power to the municipali-
ties in several, but not all of the
confederating provinces. It seems
to me that the contention in ques-
tion comes to this, that the words
‘ municipal institutions’ are to be
read not only as meaning every-
thing inherent in or ordinarily
associated with them, but also all
other powers exercised by the
municipalities of any of the con-
federating provinces. I must add
that even if the practice had been
general, such an excrescence on the
municipal system would be removed
by the other provisions of the
B. N. A. Act. Assuming, how-
ever, that there is such a right in
the provinces, and that in some
aspects prohibitory legislation is
within their power, I agree with
Mr. Nesbitt (who was permitted
to address us on behalf of the
Brewers’ Association), that no such
legislation could have validity while
the Canada Temperance Act is in
force. The provisions of that Act
giving the option are in force
throughout the entire country.
The option is exerciseable every-
where and at any time, and these
options (with such other law as is in
force) represent what Parliament
deemed adequate upon the subject.
Why then should there be com-
peting local options established
under provincial legislation, or a
competing system of provincial
prohibition? The Dominion Par-
liament, in passing the Act, declared
an intention to enact a uniform
law upon the subject. It assumes
the right to prohibit, and ﬁxes the
conditions. The freedom of the
trade (subject to license and any
' other unrepealed law), if the con-
ditions are not met, is correlative
with its suppression if they are.
Mr. Nesbitt has well stated the
confusion in the working out of the
Canada Temperance Act that would
follow upon absolute prohibition
by the province, or prohibition
through different local options ; the
result would be very far from uni-
formity. As to a distinction between
prohibition of the retail trade and
that of the wholesale trade, it is
a difference of degree and not of
kind. The wholesale trade could
not long survive the extinction of
the retail business throughout a
province. The matter has to be
looked at broadly, without too
much reﬁnement or distinction. As
to the power to prohibit importa-
tion, that manifestly and directly
affects ‘trade and commerce,’ and
the power of raising revenue by
customs duties. As to the sup-
pression of the manufacture of
liquor, this contention interferes
with excise, and subjects the argu-
ment respecting the implied powers
of municipal institutions to a great
strain. The question regarding
the Ontario Act of 1890 remains.
It has already been incidentally
considered. No doubt much lati-
tude ought to be given to the ex-
ercise of the licensing power, in the
way of restriction or regulation.
Preventing of selling in certain
ways, at certain times or places, to
certain persons, &c., is greatly re-
moved from prohibition proper.
But as I read it, the Act appears to
go beyond license and regulation
or restriction. It seems substan-
tially to give the power to prohibit
altogether. It is true that the Act
is expressed to be merely the re-
vival of provisions in force at the
B.N.A. ACT, s. 92 (9).——PARTLY A “REGULATION.”
195
Union, and since assumed to be
repealed by the provincial legisla-
ture. But if the power to pass the
Act as a new provision of law
does not exist, no more does the
power to revive the old law, which,
on the other hand, needs no re-
vival so far as Ontario legislation
is concerned, inasmuch as it was
never effectually repealed by such
legislation. I therefore answer
each of the questions submitted
in the negative, with deep acknow-
ledgments to the learned counsel
who have been heard on behalf of the
several interests before the Court.
HUsoN v. THE TOWNSHIP or
SOUTH NORWICH. This was an
appeal from Court of Appeal, On-
tario, May 20, 1892, 19 O.A.R. 343
[see p. 164 for judges]. This case
also raised the question of the con-
stitutionality of sec. 18 of 53 Vict.
(Ont.) c. 56., as explained by sec. 1
of 54 Vict. (Ont.) c. 46., 15 Jan.
1895, 24 S. C. R. 145. Sir Henry
Strong, C.J., gave the same judg-
ment as given above [see p. 164].
Taschereau, J. : “ In view of the
declaratory Act of 1891, 54 Vict.
(Ont.) c. 46., the appellant’s con-
tentions that the bye-law in question
prohibits entirely the sale of in-
toxicating liquors in South N or-
wich, and that sec. 18 of 53 Vict.
c. 56. empowers the municipal coun-
cils to enact a total prohibition of
the liquor traﬂic within their terri-
torial limits, have to be considered
as abandoned. The only question,
therefore, now to be determined
here is as to the power of munici-
palities, in Ontario, to prohibit the
retail traffic of liquors within their
respective limits, as it was vested in
them before confederation. In my
opinion the answer to the question
thus limited is correctly given by
the Court of Appeal in this case and
in Re Local Option Act, 18 CA. R.
572 [see next case but one]. The
powers which the provincial legisla-
tures and the municipal authorities
have exercised in the matter since
the coming into force of the B. N.
A. Act, now over 26 years, with
the'acquiescence of the federal au-
thority, a power expressly sanc-
tioned in numerous instances in
Ontario and Quebec by judicial
authority, might be curtailed or
affected, more or less, by a federal
prohibitive law if Parliament has
the power to pass one; but that
is not the question here, and it
will be time enough to consider it
when Parliament shall have legis-
lated in that sense, if it ever does.
Suﬂice it for me to say, for the
purposes of this case, that in my
opinion, under sub-sec. 8 of sec. 92
of the B.N. A. Act, the legislation in
question and the bye-law assailed
by the appellant are intra 'L’i-TQS.
As said in The Queen 1). Taylor,
16 March 1875, 36 U. C. Q. B.
183, p. 212, by Wilson, J., whose
language I cannot do better than
borrow: ‘ The act of the Ontario
Legislature in imposing a tax
for a license on shopkeepers
and tavern-keepers, and others
of the like class, for selling
by retail, or for continuing the
power to municipalities to prohibit
the retail of spirituous liquors, is
not in excess of the provincial
power, although I conceive it to
be partly a regulation of trade and
commerce, because before and at
the time of the confederation of
the provinces the diﬁerent munici-
palities in this province possessed
that power and privilege, and it
was not taken away or qualiﬁed in
any way by the Confederation Act.
That Act, too, was in fact passed,
and must be presumed to have
been passed, by the Imperial Go~
vernment with a full knowledge at
the time of the state of our law,
which was affected by the Imperial
Act, then under consideration, and,
among other matters, that part of
our law which related and relates
to municipal institutions, as they
existed at that time, because over
‘ Municipal institutions in the
province’ exclusive power was
then conferred by it upon the pro-
vincial legislature. . . And I am of
HUSON v. THE
TOWNSHIP or
SOUTH
NORWICH.
TASCIIEREAU, J .,
for validity.
N2
196 B.N.A. ACT, s. 92 (9).-UNFETTERED BY nEoIsIoN.
HUsoN v. THE
TOWNSHIP OF
SOUTH
NORWICH.
TASOIIEREAU, J.
opinion the right to regulate the
sale of such liquors by retail, and
also the entire prohibition of their
sale in any municipality, relates to
a matter of a merely local or
private nature in the province.
It partakes largely of a police re-
gulation.’ These remarks of Wil-
son, J., are in no way affected by
the decision of this Court in Severn
w. The Queen, 2 S. C. R. 70, Where
that case of The Queen w. Taylor
was under review. A valuable
opinion by Richards, C.J., in the
sense of Mr. Justice Wilson’s
aforesaid remarks, is to be found in
Re Slavin w. Corporation of
Orillia, 36 U. C. Q. B. 159; and
later in this Court, in Sulte w.
Corporation of Three Rivers, 11
S. C. R. 25, p. 43, Gwynne, J.,
said: ‘ I cannot doubt that by item
No. 8 of sec. 92, which vests
in the provincial legislatures the
exclusive power of making laws in
relation to municipal institutions,
the authors of the scheme of con-
federation had in view muni-
cipal institutions as they had al-
ready been organized in some of
these provinces, and that the term
as used in the B. N. A. Act, unless
there be some provision to the
contrary in sec. 91 of the Act,
comprehends the powers with which
municipal institutions, as consti-
tuted by Acts then in force in
the respective provinces, were al-
ready invested for regulating the
traffic in intoxicating liquors in
shops, saloons, hotels, and taverns,
and the issue of licenses there-
for, as being powers deemed
necessary and proper for the bene-
ﬁcial working of a perfect system
of self-government. Unless, then,
there be some provisions in the
B. N. A. Act to the contrary,
the legislature of the province of
Quebec had full power in any Act
passed by it creating a munici-
pality, or in any Act amending or
consolidating the Acts already in
force incorporating the City of
Three Rivers, to insert the pro-
visions in question here which are
contained in the 74th, 75th, and
101st sections of 38 Vict. c. 76.’
Now the 75th section of the Act so
referred to by the learned judge as
being z'utra wires of the provincial
legislation, enacts that: ‘ The said
council shall have power to make
bye-laws for restraining and pro-
hibiting the sale of any spirituous
wines, alcoholic or intoxicating
liquor.’ Henry, J., in the same
case said: ‘It has been argued that
because a prohibitory Act of the
legislature of any of the provinces
would be an interference with trade
and commerce such an Act
would be ultra wires. . . I
cannot adopt that proposition.’
The City of Fredericton w. The
Queen, 3 S. C. R. 505, does
not determine, as seems to be
assumed by the appellant, that the
Dominion Parliament has alone
the power to prohibit the sale of
liquor. The only point determined
in that case is that the Temperance
Act of 187 8 is constitutional. Any-
thing that was said outside of that
question in that case, as well as in
many others relied upon by the
appellant, was obiter dictum and of
no binding authority; and the re-
porter’s summaries in some of those
cases are misleading.
“The case here is unfettered by
any authority. In answer to the con-
tention that by its decision in Russell
w. The Queen, 7 App. Cas. 829 [see
abowe, p. 129], where Fredericton
w. The Queen was under review,
the Privy Council had determined
that the whole subject of the liquor
traffic was given to Parliament,
Sir Barnes Peacock in Hodge w.
The Queen, 9 App. Cas. p. 129 [see
abowe, at p. 140], said : ‘ It appears
to their Lordships, however, that the
decision of this tribunal in that case
has not the effect supposed, and
that, when properly considered, it
should be taken rather as an autho-
rity in support of the judgment of
the Court of Appeal.’ And is it
not evident that when holding, as
they did, the Liquor License Act,
1883, to have been ultra wires of
B.N.A. ACT, s. 92 (9) .-—UN EXERCISED POWERS.
197
the Dominion Parliament, their
Lordships cannot have been of
opinion that the whole control over
the liquor traﬂic was vested in the
Dominion Parliament? The in_
ference from their decision on that
License Act, I take it, is all the
other way. And in this Court
Gwynne, J ., in Sulte v. The Cor-
poration of Three Rivers, said,
11 S. C. R. p. 44: ‘It seems to be
supposed that the judgment of this
Court in the City of Fredericton
v. The Queen is an authority to the
effect that since the passing of the
B. N. A. Act it is not competent
for a provincial legislature to re-
strain or prohibit, in any manner,
the sale of any spirituous liquors.
. But the City of Fre-
dericton o. The Queen raised
no such question, nor is any
such point professed to be decided
by our judgment in that case.
. . What was decided in the
City of Fredericton o. The Queen
was, that the provincial legislatures
had not jurisdiction to pass such
an Act as ‘The Canada Tempe-
rance Act of 1878,’ and that the
Dominion Parliament alone was
competent to pass it; and of this
opinion, also, was the Judicial
Committee of the Privy Council in
Russell 0. The Queen.’
“ And Ramsay, J ., in Montreal,
must have shared in this opinion
when he said in that same casein
the Court of Appeal, 5 Legal News,
330; 2 Cartwright, 280, in refe-
rence to the Privy Council’s de-
cision in the case of Russell 1). The
Queen: ‘ It has not, either ex-
pressly or by implication, main-
tained that the Dominion Parlia—
ment can alone pass a prohibitory
law.’ The appellant’s contentions
have, it seems to me, been rendered
the more untenable by the decision
of the Privy Council of February
last in the Ontario insolvency case,
Att.-Gen. of Ontario v. Att.-Gen.
of Canada, [1894] A. C. 189 [see
post, sub-sec. 13, sec. 92]. It results
from that case, if I do not misun-
derstand it, that there are, under
the B. N. A. Act, subjects which
may be dealt with by both legisla-
tive powers, and that the provincial
ﬁeld is not to be deemed limited
by the possible range of unexer-
cised power by the Dominion Par-
liament, so that a power conferred
upon the latter, but not acted upon,
may, in certain cases, be exercised
by the provincial legislatures, if it
fall within any of the classes of
subjects enumerated in sec. 92.
“In my opinion these proposi-
tions, which are now the law of the
country, have here their full appli-
cation. And where would the pro-
vinces be on this question of the
liquor trafﬁc if it were not so?
At the mercy of the federal power,
that is to say, at the mercy of each
other. Ontario, for instance, might
desire to prohibit the liquor traﬂic
through the municipal authorities,
as they had the power to do before
confederation, but Ontario would
be unable to do so if the other
provinces, either by directly re-
fusing it in Parliament or simply
by not dealing at all with the
question, refused to permit it.
“ That is surely not Canada’s
Constitution. The inaction of the
Dominion lawgiver cannot have
such consequence. It cannot be
that, simply because the Dominion
authority will not prohibit all over
the Dominion, the trade must be
permitted everywhere in the pro-
vinces. It does not follow that be-
cause the provinces have the right
to license they must license. Ques-
tions of power, as said by Marshall,
C.J., in Brown v. State of Mary-
land, 25 S. C. U. S. (12 Wheat),
p. 439, cannot ‘depend on the de-
gree to which it may be exercised.
If it may be exercised at all, it must
be exercised at the will of those in
whose hands it is placed.’
“In cases of implied limitations
or prohibitions of power, it is not
sufficient to show a possible or
potential inconvenience. There
must be a plain incompatibility, a
direct repugnancy, or an extreme
practical inconvenience, leading
HUsON v. THE
TOWNSHIP OF
SOUTH
NORWICH.
TASCIIEREAU, J.
198 B.N.A. ACT, 5. 92 (9).--REPRODUCTION or OLD ACT.
HusoN v. THE
TOWNSHIP or
SOUTH
NORWICH.
TASCHEREAU, J.
irresistibly to the same conclusion.
Story’s Const. U. S. s. 447.
“And I cannot see any such in-
compatibility or repugnancy in
allowing one authority to prohibit
when the other does not, though it
might have the power to do so.
It has earnestly been urged on the
part of the appellant that as a
consequence of the Dominion Tem-
perance Act, 187 8, the provinces
are now deprived of any power
that they might previously have
had of prohibiting or empowering
the municipalities to prohibit the
liquor trade. But I fail to see
such a consequence attached to
that Act. There is, it seems to
me, no incompatibility between the
two, between that Act and the
power of the municipalities to pro-
hibit. How can that Act of 187 8
be deemed to be more incompatible
with this power of the municipali-
ties than was the Temperance Act
of 1864 with the same powers of
the same municipalities? In the
main, this Act of 1878 is but a
reproduction of the Act of 1864;
or, at least, both are based on the
same principle. Now, in 1864,
when the Temperance Act was
enacted by the same legislature
that had unlimited control as well
over the municipalities as over the
liquor traffic, the provisions of that
Temperance Act were not deemed
to be incompatible with the powers
already possessed by the munici-
palities on the subject, which re-
mained intact; and that they were
not incompatible, I apprehend, will
not be gainsaid. A statute like
the Dominion License Act of 1883,
to license the trade or authorize
the municipalities to license it,
might be, and, in fact, would be,
in the absence of the necessary
provisions to avoid it, repugnant to
or inconsistent with a prohibitory
Act. But I fail to see that two
prohibitory Acts, assuming the
Temperance Act of 1878 to be a
prohibitory Act, must necessarily
be repugnant to one another, even
where enacted by diﬁerent autho-
rity, or even where the power to
prohibit is conferred on two diffe-
rent bodies, especially where the
jurisdiction of the two is not terri-
torially the same, as is the case
with this double legislation on
this matter. For, by the Federal
Act of 1878, it is only to county
and city municipalities and federal
electors that is granted the power
to prohibit, whilst by the Ontario
Act it is in local municipalities and
provincial electors, that the power
is vested. In Quebec it is the
municipal electors, when a submis-
sion to the people is ordered.
“The Privy Council in Hodge v.
The Queen considered that the
Ontario License Act does not con-
ﬂict with the Federal Temperance
Act of 1878. A fortz'orz', would I
say, two prohibitory Acts need not
necessarily conﬂict with one another.
I do not lose sight of the fact that,
as a local municipality forms part
of a county municipality, where the
Federal Act of 1878 is put into
operation in a county it necessarily
follows that it-is-in operation in
every one of the local municipali-
ties included in it. The only con-
sequence of this, however, is that
the working of the provincial Act,
or of a bye-law under it, or the
machinery by which it is put in
operation, may be superseded or
suspended in the municipalities
where the Act of 187 8 is in force,
but I do not see in that any incon-
sistency with the power of the pro-
vince to pass it as long as the Act
of 1878 is not acted upon, and re-
vive it when the other one ceases to
operate where it has been put in
operation. The Federal Act can-
not at all be considered as legisla-
tion over the powers of the munici-
palities. It does not purport to be
anything of the kind. It has no
connection whatever, and could
have none with the municipal
system of the different provinces.
It is controlled altogether by a
majority of federal electors, but
that, it is obvious, may not be at all
the majority of municipal electors
B.N.A. ACT, s. 92 (9).—OLAIM LIMITED TO OWN PROV. 199
in a municipality, when that is re-
quired as in the province of Quebec,
and, in fact, cannot be under the
statutes at present in force in some
of the provinces, whereby women,
for instance, are entitled to vote at
municipal, but not at federal elec-
tions. Likewise for the provincial
electors, where, as in Ontario, these
bye-laws under the provincial Act
depend on their votes. The majority
of them may not be at all a majority
of federal electors, or vice versci.
And the respondents, I assume,
would not have any objection to
submit to the Temperance Act of
187 8, if it was put into force in the
county of which they form part.
All that they claim is home rule, the
right to put a stop to drinking and to
taverns within ‘their own territorial
limits. Even if the rest of the pro-
vince, or all the other municipalities
of their own county, choose to do
otherwise for their own people,
they should be as free to do so now
as they were before confederation,
though the provinces of British
Columbia, Prince Edward Island,
Quebec, or all of them, and all the
other municipalities of Ontario, may
favour within their territorial limits
a different policy. Whenever the
Federal Parliament prohibits en-
tirely the liquor traffic in the Do-
minion, assuming always for the
purposes of this case that they have
the power to do so, the respondents
will not complain; the very object
they are now contending for will be
attained. What they ask is to be
at liberty to do so for themselves
till Parliament does so for the whole
Dominion. And again, by an ex-
press provision of the Temperance
Act of 1878, if the Act is rejected
by the federal electors it cannot be
submitted to them again for a
period of three years. Now, if
within these three years a local
municipality, and a majority within
it of the provincial or municipal
electors where that is required, de-
sire to prohibit the liquor traffic
within its limits, is there anything,
in allowing them to do so, incon-
sistent with the Temperance Act of
187 8, or repugnant to it P It is all
the other way, it seems to me. It
perfects it; it aims at the same
result; it provides for the promo-
tion of temperance, where the Act
of 1878 fails; it promotes temper-
ance wherever the Act of 1878 can-
not penetrate; it replaces it in any
county where a majority of the
federal electors will not allow it
to come in, or where no attempt is
made to put it in operation. And
is there, in that case, any incon-
sistency or danger of a clashing of
powers in conceding to a local
municipality the power to prohibit
within its own limits, though the
rest of the county is in favour of
licensing P And can it not be said
of the enactment now under con-
sideration what their Lordships
said of the statute in Hodge 'v. The
Queen, that it is ‘ conﬁned to mu-
nicipalities in the province of On-
tario, and is entirely local in its
character and operation ’ P
“ The Federal Parliament has, for
instance, the right, I presume, of
prohibiting the sale of dynamite or
opium, or any other poison, all
through the Dominion. The appel-
lant would contend that, if Parlia-
ment has not enacted such a law,
the provincial legislature cannot
authorize the municipalities to pro-
hibit the sale of such articles within
their limits. Such a contention
cannot prevail. There are a large
number of subjects which are
generally accepted as falling under
the denomination of police regula-
tions, over which the provincial
legislatures have control within
their territorial limits, which yet
may be legislated upon by the
Federal Parliament for the Do-
minion at large. Take, for instance,
the closing of stores and cessation
of trade on Sundays: Parliament,
I take it for granted, has the power
to legislate on the subject for the
Dominion, but until it does so, the
provinces have, each for itself, the
same power. This shows, it seems
to me, that the word ‘ exclusively ’
HUSON v. THE
TOWNSHIP OF
OUTH
NORWICH.
TASCHEREAU, J.
200 B.N.A. ACT, s. 92 (9) .—MAK1NG SHADOWY POW'ERS.
HusoN v. THE
TOWNSHIP OF
SOUTH
NORWICH.
TASCHEREAU, J.
in sec. 92 of the B. N. A. Act is
not susceptible of the wide con-
struction that the appellant would
put upon it. Then here all
that the respondent contends for is
the municipal power to prohibit
the liquor trade, or the power to
prohibit as a part of the municipal
institutions of the province, and
that the power of the provincial
legislatures over those institutions,
and the municipal system in
general, is exclusive. The Federal
Parliament cannot in any way
touch them. On the appellant’s
contention that such a prohibition
by the municipalities is a regu-
lation of trade and commerce, and
therefore ultra wires of the pro-
vincial legislature, I need not dwell.
It is settled that these words,
‘regulation of trade and commerce,’
in the British North America Act,
do not bear the wide construction
that the appellant would here con-
tend for.”
Citizens’ Insurance Co. w. Par-
sons, '7 App. Cas. 96.
Hodge w. The Queen, 9 App.
Cas. 96.
Bank of Toronto w. Lambe, 12
App. Cas. 575.
Bennett w. The Pharmaceutical
Assoc. of Quebec, I. Dor. Q. B. 336.
Pillow w. The City of Montreal,
27 L. C. J. 216; 30 L. C. Jur. I.
“ It was likewise held by the
United States Supreme Court, in
Cooley w. The Board of War-
dens, 53 S. C. U. S. (12 Howard)
319, that a State law, estab-
lishing certain pilotage regula-
tions conceded to be regulations
of commerce, was valid until super-
seded by the federal legislative
power. And, as said by Field, J .,
in Sherlock Alling, 93 S. C. U.
S. 99, ‘ Legislation in a great variety
of ways may affect commerce and
persons engaged in it, without con-
stituting a regulation of it within
the meaning of the Constitution.’
Cases to that same import are Ex
parte McNeil, 80 S. C. U. S. (13
Wall), 240 ; Willson w. Blackbird
Creek Marsh 00., 27 S. C. U. S.
(2 Peters), 250; and Gilman w.
City of Philadelphia, 70 S. C. U. S.
(3 Wall), 728.
“ If the provinces were deprived
of the right to all legislation where-
by it might be said that trade and
commerce are In some way regu-
lated, or more or less affected, very
shadowy indeed would be many of
the powers conferred upon them in
express terms by sec. 92 of the
B. N. A. Act.
“ To apply to this case what
Swayne, J ., delivering the judgment
of the United States S. C. in Rail
Road Co. w. Fuller, 84 S. C. U. S.
(17 Wall) 560, said of the United
States Constitution on the same
subject, assuming that tli‘iS statute
in question constitutes in a sense
a regulation of trade and commerce,
it is a regulation of such a character
as to be valid until superseded by
the paramount action of the federal
authority. And it may very well
be, notwithstanding what was said
in this Court in City of Fredericton
w. The Queen, 3 S. C. R. 505, that if
Parliament had the power to prohibit
the liquor trade for the whole Domi-
nion, it is not at all under the words
‘regulation of trade and commerce’
of sec. 91 of the B. N. A. Act that
it gets it. However, that is not
the question here. I may, neverthe-
less, notice what Harlan, J ., of the
U. S. S. C., said before the Behring
Sea Tribunal, on the question
whether a power to regulate in-
cludes a power to prohibit :—
“ ‘ The British counsel contended
that it is beyond the power of the
arbitrators to prescribe regulations
of that character (to prohibit).
They argued that the tribunal could
not do indirectly what they could
not do directly; that prohibition,
in terms or by necessary operation
of regulations, is not regulation;
that the power to regulate is not a
power to prohibit. When en-
forcing the view last stated, counsel
asked us whether a power given
by the legislative department to a
municipal corporation to regulate,
within its limits, the sale of ardent
B.N.A. AOT, s. 92 (9).—-IMPERIAL LICENSE AcTs.
201
spirits would give to such corpora-
tion authority to prohibit all sales
of such spirits. Perhaps not. But
the case put does not meet the one
before the tribunal. It is mere
play upon words to say, in respect
to this treaty, that prohibition is
not legislation.’ [Behring Sea
Proceedings, 31].
“I now pass to the provincial
statutory laws on the subject.
“ The learned judges of the Court
of Appeal, in the Local Option
case, 18 O. A. R. 572, have said
all that can be said upon the
Ontario municipal law of any im-
port on this question. Let us see
now what light a Quebec candle,
or a reference to the Quebec law
of municipalities, might throw up-
on it.
“In 1774, by the 14 Geo. 3.0.88.
s. 5 [see 35 Geo. 3. c. 8. of L. C.,
and 13 & 14 Vict. c. 27. of the late
province of Canada; see post], a
license fee was imposed by the Im-
perial Parliament upon the sale of
liquors in the province of Quebec
as then constituted. That Act is
still in force in Quebec if not
in Ontario. The revenues from
these licenses were to fall into the
provincial fund, but in 1845, by
the 8 Vict. c. 72., the legislature of
the late province of Canada de-
creed that the revenues from houses
of public entertainment and tavern
licenses were thereafter to be ap-
propriated for municipal purposes.
“ In 1847, by 10 & 11 Vict. c. 7.,
the municipalities were given de
novo the power to increase the
price for liquor licenses.
“In 1851,by 14 &'15 Vict. c. 100.,
a larger control over the liquor
traffic was assumed by the legisla-
ture, and a new system of tavern
licenses was established. Its main
feature consisted in this, that.
traffic in liquor was prohibited
everywhere, except when allowed
by the discretionary powers of
municipal councils and municipal
electors: Smart 1*. The Corporation
of Hochelaga, 4 Legal News, 255.
“By sec. 21 the revenue from
liquor licenses was again given to
the municipalities. In 1853, by 16
Vict. c. 214., an Act to the same
effect, with certain modiﬁcations,
was passed for the cities of Mon-
treal and Quebec. In these cities
the power to grant or refuse licenses
was by that Act vested in the police
magistrates, but they had no power
to license except upon the petition
of a certain number of municipal
electors. All the license Acts in
the province have since, likewise,
made the granting of licenses depen-
dent upon the municipal councils
or municipal electors. I need only
refer for this to the Consolidated
Statutes of Lower Canada, c. 6. s. 9,
and to arts. 829-835, and follow-
ing, of the Revised Statutes of
1888, in both of which these license
Acts are all condensed. A pro-
vision is to be found in every one
of them that no licenses are to be
issued in the municipality wherein
a prohibitory bye-law is in force.
So much for the license Acts.
“ Now for the municipal Acts.
In 1855, by 18 Vict. c. 100., where-
by the present municipal system of
the province was inaugurated, local
councils were empowered in express
terms, sec. 23, sub-sec. 6, to pro-
hibit absolutely the retail traffic in
liquors within the territorial limits
of the municipality. In 1856, by
19 & 20 Vict. c. 101. s. 8, the
county councils were authorized to
prohibit entirely, in March of each
year, the sale of spirituous liquors
within the county. And by sec. 11
the local councils were authorized
to pass such a bye-law for their own
municipalities whenever the county
council had allowed the month
of March to expire without having
passed one for the county. In 1860,
by 23 Vict. c. 61., the municipal
Act was consolidated, but the above
provisions of the statute of 1856
were left intact. Also in the
Consolidated Statutes of 1861,
c. 24., these enactments are re-
enacted without any alterations, as
see. 26, sub-secs. 10 and 11, sec.
27, sub-sec. 16, respectively. The
HUsoN v. THE
TOWNSHIP OF
SOUTH
NORWICH.
TAscIIEREAU, J.
202 B.N.A. ACT, S. 92 (9).-MUNICIPAL LIQUOR LAWS.
HUsoN v. THE
TOWNSHIP or
Sou'rn
NORWICH.
'TASCHEREAU, J.
terms are unequivocal. ‘ Every
municipal county (or local) council
may make bye-laws for prohibiting
and preventing (to prevent or pro-
hibit) the sale of any spirituous
liquors.’ In 1866 (29 & 30 Vict.
c. 32.), sub-sec. 16 of sec. 27 of the
Consolidated Municipal Act of
1861, c. 24. above referred to, was
repealed and replaced by a pro-
vision giving to local councils,
before the second Wednesday of
March of each year, the power to
prohibit the sale of any spirituous
liquors. This Act, passed only
two years after the Temperance
Act of 1864, must be taken as
another unequivocal declaration of
the legislature of the late province
of Canada that the power of the
municipal authorities had not been,
in any way, diminished or restricted
by the said Temperance Act, and
that these powers were not incon-
sistent with or repugnant to those
conferred by the said Act.
“ Such was, in the province of
Quebec, the state of the statutory
law on the subject at confedera-
tion. I need hardly say that it
results clearly from it, whatever its
consequences maybe on the ques-
tion now under consideration, that
the whole system of legislative
supervision over the liquor traffic
was so closely identiﬁed with the
municipal system of the province,
and so blended with it, that they
formed only one. The ‘ constitu-
tional connection ’ between the two,
to use Mr. Justice Burton’s expres-
sion, was complete. And up to the
present day the two are so worked
and put in operation as one that
every year, in a large number of
the municipalities, the only, or at
least the principal, question at the
election for councillors is prohibi-
tion or no prohibition. This is a
matter of public notoriety in the
province. Now, not long after the
coming into force of the B. N. A.
Act, the Quebec Legislature, in
1870, enacted a Municipal Code,
and, in continuance of the policy
that had theretofore prevailed in
the province of treating the control
over the liquor traffic as a part of
the municipal institutions, and
leaving it to be as theretofore a
marked feature of the power vested
in the municipal authorities, it con-
ferred upon each local council, by
sec. 561 thereof, the power to pro-
hibit, and this, by extension of the
power, ‘at any time’ during the
municipal year the retail sale of in-
toxicating liquors.
“ And that enactment, with slight
amendments (art. 6118, R. S. of
1888), has remained in force up to
the present day unchallenged by
the federal authority, and has been
acted upon through the province
in a number of municipalities. And
at this very moment there are no
less than 158 localities in the pro-
vince, as I gather from official
sources, where the retail sale of
liquors is entirely prohibited under
that statute. That has been in the
province the average yearly number
of such bye-laws since 1867. And,
as in Ontario, I may remark, the
enforcement of all such regulations,
restrictions, and prohibitions is per-
formed by the police force of the
locality where such force exists,
and forms a part of the police duties,
under the control of the police courts
and police commissioner. In fact, in
many of the rural municipalities,
the only annual police regulation
is a prohibitory bye-law. If the
appellant’s contentions were to
prevail, all this legislation, all
these hundreds of bye-laws passed
every year since 1867, were, and
are, each and every one of them,
perfect nullities, not worth the
paper they were written on. The
Legislature of Quebec, besides the
statutes I have referred to, has
since the Municipal Code, and after
the passing of the Federal Tem-
perance Act, re-enacted, in 1888,
as law enforced in the province,
the Temperance Act of 1864, by
art. 1095 of the R. S., which reads
as follows :—
“ ‘ The municipal council of
every city, town, township, parish,
B.N.A. ACT, s. 92 (9).—GONSTITUTNLTY. & OLD ACTS. 203
or incorporated village, shall have
the power, under the authority and
Municipal Code, vesting the local HUSON v. THE
councils with the right to prohibit TOWNSHIP OF
SOUTH
for the enforcement of this section,
and subject to the provisions and
limitations, at any time, to pass a
bye-law prohibiting the sale of
intoxicating liquors, without sub-
mitting it to the electors.’ The
Legislature of Ontario, in 1887, by
the R. S., likewise considered the
Temperance Act of 1864 as still in
force within that province.
“ Now, what is the jurisprudence
on the question in the province of
Quebec? I will refer, of course,
only to the Court of Appeal. I
ﬁnd only two cases in that court
on the question, but they are both
so express and clear that, unre-
versed as they stand, they settle,
beyond doubt, the jurisprudence as
far as the province goes.
“In Sulte v. The Corporation
of Three Rivers [1882], 5 Legal
News, 331 ; 2 Cartwright 280 [in
11 S. C. R. 25], the Court of
Appeal in Montreal unanimously
held that, at the time of confedera-
tion, the right to prohibit the sale of
intoxicating liquors was possessed by
the municipal authorities, and con-
sequently is to be deemed included
in the powers vested in the provin-
cial legislatures, under the words
‘provincial institutions’ of sub-sec.
8, sec. 92 of the B.N.A. Act, and this
in no equivocal terms. ‘ We hold,
then,’ said Ramsay, J ., for the
Court, ‘that the right to pass a
prohibitory liquor law for the pur-
poses of municipal institutions has
been reserved to the local legisla-
tures by the B. N. A. Act.’ That
case was aﬂirmed in this Court, 11
S. C. R. 25, though not upon the
ground taken by the Montreal
Court of Appeal; the point was not
dealt with one way or another. In
1891, in the case of the Corpora-
tion of Huntingdon 'v. Moir and the
Att.-Gen., intervening party upon
the constitutional question, 7 Mon.
Q. B. 281; 20 R. L 684, the Court
of Queen’s Bench again unani-
mously determined, reversing the
judgment a quo, that art. 561 of the
the retail trafﬁc in liquors within
their territorial limits, is intra
tires of the provincial legislature,
and that a bye-law passed under the
provisions to prohibit such traﬁic is
in all respects legal and binding.
It is impossible to get two decisions
more directly in point. This Court
has never had occasion to pass a
judgment on the question, but in
the case of Bergeron 'v. Lassalle,
Cas. Dig. 2 ed. 495, it may not be
amiss to remark the power of the
Legislature of Quebec to pro-
hibit the sale of liquors in Three
Rivers and other cities of that class,
relied upon by the respondent, was
not questioned either at bar or on
the bench, and the court gave due
effect to such a prohibition.
“The appeal should, in my
opinion, be dismissed with costs.
I have only to add that, in my
view of the case, the appeal must
fail, even if the appellant’s conten-
tions as to the unconstitutionality
of the Ontario legislation in the
matter were to prevail. For, if
the province of Ontario had not
the power to re-enact the sections
in question of the Municipal Act,
it cannot have had the power to
repeal them expressly or impliedly;
and, consequently, they are now in
force as they stood at confederation
in the Municipal Act of 1866.
“No reasons to quash the bye-
law of the municipality-respondent,
as being against the provisions
of the statute as it then was, have
been assigned by the appellant. As
I conclude this opinion, I am in-
formed by the Registrar that the
reference to this Court, which will
probably involve the question in
issue in this case, has been ordered
by the federal authorities. I think,
however, that the parties here should
not be prejudiced by this action of
the federal power, and that they
are entitled to a judgment on the
case submitted to us.”
Gwynne, J .: “ After the argu-
ment of this case, upon the ﬁrst of
NORWICH.
GWYNNE, J.
204 B.N.A. Aer, S. 92 (9).--]NOIDNTS. TO MUNICIPALITIES.
HUSON v. THE
TOWNSHIP OF
SOUTH
NoRwIcH.
GWYNNE, J.
Tun CORPORA-
'rIoN 0F HUNT-
INGDON v. Mom.
the questions involved in it, certain
questionswere submitted to us, under
an Order in Council of the 26th Oct.
1893, in the matter of prohibition
of the trade in intoxicating liquors
under the provisions of the statute
in that behalf, which questions
contain one which raised the pre-
cise point in issue in this case, and
in consequence all further action
in this case was deferred until the
hearing and argument of the ques-
tions submitted by the Order in
Council. The argument, there-
fore, upon the question so sub~
mitted constituted in effect, in my
opinion, a reconsideration, and, as
it were, a rehearing of the questions
involved in this case. I have en-
tered fully, in my judgment on the
questions so submitted, into my
reasons for my conclusions upon
the said questions, which include
that in this case, which judgment
contains the only judgment I have
to deliver upon every one of the
questions therein involved, namely,
that they all must be answered in
the negative [see abowe].” Appeal
dismissed with costs.
THE CORPORATION OF HUNT-
INGDON w. Mom, 21 March 1891,
7 Mon. B. 281, was an ap-
peal from a judgment of the Cir-
cuit Court (Bélanger, J .), dated
26 May 1890, which held ultra
wires, and quashed, abye-law of the
Corporation of Huntingdon pro-
hibiting the sale of less than two
gallons of intoxicating liquors at
one and the same time. This bye-
law was passed by virtue of Article
561 of the Municipal Code as
amended by 51 & 52 Vict. c.
29. s. 6, R. S. Quebec, 6118.
The Corporation appealed.
The Quebec Municipal Code of
24 Dec. 1870, 34 Vict. c. 68., by
Article 525, gave power to every
local council to make, amend, or
repeal bye—laws for each of the
objects mentioned in that chapter
(sub-ch. 4), and Article 561 was
“ T o prohibit the sale of intoxicating
liquors in quantities less than three
gallons, or one dozen bottles of at
least three half-pints each, at one
and the same time, and the grant-
ing of licenses therefor, within the
limits of the municipalityand on the
ferries which are dependencies of
such municipality.” This Article
was, 12 July 1888, altered by 51
& 52 Vict. c. 29. s. 6., by deleting
the words “three gallons, or a
dozen bottles of at least three half-
pints each,” and reading therefor
“two gallons imperial measure, or
one dozen bottles of not less than one
pint each imperial measure.” See
R. S. Quebec, 1888, s. 6118. The
Court [Dorion, C.J., Baby, Bossé,
Doherty, and Cimon, JJ allowed
the appeal. Doherty, J ., said:
“ The right of the provincial legisla-
ture to pass prohibitory liquor laws
exists as incidental to municipal
institutions.” The local legislature
had authority to enact Article 561
of the Municipal Code, and the
Corporation of Huntingdon had
the right to pass the bye-law in
question. It was not necessary to
enter into a lengthy examination
of the case, as the question had
been settled by the highest courts.
Judgment of the court below, which
quashed the bye-law, was reversed,
and appeal allowed. The order of
the Court was: “Considering that
Article 561 of the Municipal Code
and the matters thereby provided
for are within the competency and
powers of the legislature of this
province, and not ultra wires there-
of, as in this cause pretended and
pleaded by the respondent, by his
petition in this behalf produced;
and considering therefore that the
Municipal Council of the Corpora-
tion, appellant to this Court, in
passing and enacting the bye-law
appealed against by respondent to
the Circuit Court, from the judg-
ment of which this appeal hath
been taken, was competent, and
acted iutra wires under said article
in passing said bye-law, and that
the same is in all respects legal and
binding for all the purposes there-
of, and of the said article; and
B.N.A. ACT, S. 92 (9).-OLD LIQUOR LAws.
205
considering that there is error in
the judgment a quo, to wit, the
judgment rendered on the 26th May
1890 by the Circuit Court for the
county of Huntingdon in the dis-
trict of Beauharnois in this, that
it held and holds the contrary,
and that said article and bye-law
were so ultra rims, and the con-
clusions of the Att.-Gen. un-
founded; doth reverse and make
void the said judgment; and ren-
dering the judgment which the court
below ought to have rendered, as
well on the respondent’s said peti-
tion as on the intervention in this
cause pled by the Att.-Gen., doth
dismiss the said petition, with
costs as well as in the court below
as in this Court, in favour of the
Corporation appellant, and against
the said James Moir, the respon-
dent, and maintain the said inter-
vention without costs.” November
11, 1891, Moir appealed against
this judgment to the Supreme
Court, Canada, and counsel for
the Corporation having stated that
since the above judgment the bye-
law in question had been repealed,
and that the matter in question
was now merely one of costs,
the Supreme Court dismissed the
appeal with costs; an appeal for
costs alone being incompetent. See
19 S. C. R. 363.
In the ONTARIO LOCAL OPTION
ACT CAsE, Sept. 23, 1891, 18 O.
A. R. 572, these questions were
put to the Appeal Court :—(1)
Had the Legislature of Ontario
jurisdiction to enact the 18th sec-
tion of the 53 Vict. c. 56., entituled
‘An Act to improve the liquor license
laws ’ ? (2) Or had the legislature
jurisdiction to enact the said sec-
tion as explained by sec. 1 of
54 Vict. c. 46? (3) Has the
council of a township, city,
town, and incorporated village au-
thority to pass bye-laws for pro-
hibiting the sale of liquors in the
original packages in which the
same have been received from the
importer or manufacturer; provided
that the bye-law before the ﬁnal I" "8 THE
passing thereof has been duly ap-
proved by the electors of the
municipality in the manner pro-
vided by the sections in that be-
half of the Municipal Act? (4)
Is a bye-law in terms of sec. 18 of
53 Vict. c. 56., or as explained by
sec. 1 of 54 Vict. c. 46., invalid
where the bye-law does not pro_
vide a ﬁne Or penalty for sales
contrary to its provisions? The
Court [Hagarty, C.J.O., Burton
and Maclennan, J J . (Oster, J .,
declining to give an opinion)] held
the Act valid as to prohibitions of
sale by retail. Hagarty, C.J.O.,
said: “ From an early period,at least
as far back as 12 Vict. c. 81., 1849
[see below], municipalities had the
power to regulate tavern licenses,
and to limit their number. In
1853, by 16 Vict. c. 184. s. 3, sub-
s. 2, they were given power to
pass bye-laws ‘for preventing ab-
solutely the sale of wine, brandy,
or other spirituous liquors, ale or
beer, or any of them, by retail
within the municipality,’ with a
saving clause as to sales in original
packages containing not less than
ﬁve gallons [see below]. In 1858,
22 Vict. c. 99. s. 245, sub-s. 6, there
is a clause, identical with that re-
enacted in the statute on which our
opinion is sought, for prohibition
subject to the approval of the
electors. This is repealed in C. S.
U. C. c. 54. s. 246 (1859), autho-
rizing the prohibition of sale by
retail. Then 23 Vict. c. 3 (1860)
limited the number of licenses to be
granted in municipalities, s. 5 de-
claring that it was not to restrict mu-
nicipal councils from further limit-
ing the number Or passing any other
bye-law under sec. 246 of C. S. U.
C. c. 54. In 1864 the legislature
passed the Act 27 & 28 Vict. c. 18.
(commonly called the Dunkin Act).
Sec. 1 provided that the munici-
pal council of every county, city,
town, township, 800., should have
power to pass a bye-law for pro-
hibiting the sale of liquor and the
issuing of licenses within such
ONTARIO LOCAL
OPTION ACT.
206 B.N.A. ACT, S. 92 (9).—EXPBESSLY TRANSFERRING.
In re THE
ONTARIO Loon.
OPTION Aer.
county, &c., and full provision was
made as to its being approved by
the electors. Sec. 2, sub-sec. 3,
allowed distillers and brewers to
sell in not less than certain named
quantities. The brewers’ and dis-
tillers’ clause still appears in
R. S. O. (1887),c. 194. In 1866,
in 29 & 30 Vict. c. 51. s. 249,
sub-sec. 9 is the clause allowing a
bye-law for prohibiting the sale in
taverns by retail, and for prohibiting
totally the sale thereof in places
other than houses of public enter-
tainment, and this clause is identi-
cal with the clause now in question.
Sec. 252 declares that no license
shall be necessary for selling liquor
in original packages. Confedera-
tion took place 1 July 1867. The
ﬁrst Ontario legislation seems to be
1869, 32 Vict. c. 32., The Tavern
and Shop Licence Act. See. 6 cm-
powers municipalities to pass bye_
laws in terms identical .with the
clause in question. See sub-sec. 7.
Sec. 40 repeals the sections 249 to
263 of the Act of Canada, 1866,
cited above. This sec. 249 is that
allowing such a bye-law before
confederation, and thus the same
statute repealing the clause re-
enacts it in the same terms. So
things remained under the last Act
from 1869 to 1874. In 1874,
37 Vict. c. 32., amending and con-
solidating another Act, not hearing
on this point, and the prohibition
clause was omitted in declaring the
powers (sec. 9) of municipalities
in counties where the Temperance
Act of 1864 was not in force, leav-
ing, however, the power to regulate
and to deﬁne the conditions and
qualiﬁcations requisite for obtaining
licenses and the power to limit the
number. And see 40 Vict. c. 18
(0.), and R. S. O. 1887, c. 182.”
[Reads sec. 18 of 53 Vict. c. 56.,
the Act in question]. [His Lord-
ship then referred to the Canada
Temperance Act, 187 8, as con-
taining most stringent provisions
against the sale or barter of every
intoxicating liquor, and cites
sec. 99, sub-secs. 2, 3, 7, and 8.]
“ It is clear that no license can
avail against any violation of the
Act, except within the allowed
limits. The Act contemplates the
issue of licenses to brewers and
distillers and manufacturers of
native wine. For at least 13 years
prior to confederation, municipali-
ties had this power of prohibiting
the sale of liquor. The power
existed at confederation, and was
continued by Ontario legislation in
the Liquor License Act down to
1874. The Dominion Act then
interposed. Now the Ontario
Legislature revives the dropped
clause. Under the Confederation
Act, ‘ Municipal institutions in the
province ’ are in the class of subjects
within exclusive provincial regula-
tion. It may be safely said that
there is no apparent intention in
the Confederation Act to curtail or
interfere with the existing general
powers of municipal councils, unless
the Act plainly transfers any of
such existing powers to the Do-
minion jurisdiction. WVhere either
the Legislature of Canada before,
or the Dominion Parliament after,
confederation provided enactments
as to prohibition inconsistent with
the municipal regulations, the latter
must give way. When either under
the Act of 1864 or of 1878 a
county passed a Prohibition Act,
the powers of a township so to do
would be at least in abeyance. I
read the clause 18, restoring the
old powers to the municipality, to
apply only to places where neither
of these Acts is in force, and to
apply only so long as the Dominion
Act shall not be applied to it. The
local legislature specially distains
any exercise of jurisdiction beyond
the revival of provisions in force at
confederation. As I understand
the various interpretations given to
the Confederation Act in its distri-
bution of legislative powers in the
Privy Council and in the Supreme
Court, and without attempting to
cite from the voluminous authorities
on the subject, I arrive at the con-
clusion that the Legislature of On-
B.N.A. ACT, s. 92 (9).—PRECONFEDERATION POWERS. 207
tario hadv jurisdiction to pass the
18th section. The effect is to leave
the power of prohibition in the
municipalities as it was for so many
years before, and at the time of the
imperial settlement of the Constitu-
tion of our Dominion. I do not
overlook the question raised as to
this being an alleged interference
with ‘trade and commerce.’ Rus-
sell 2:. The Queen [see above].
The opinion of the Supreme Court
in that case, that a general law like
the Canada Temperance Act came
within the exclusive power of the
Parliament of Canada, is thus
noticed, the Privy Council declar-
ing that they must not be under-
stood as intimating any dissent
from the opinion of the Chief
Justice of the Supreme Court of
Canada, and the other judges, who
also held that the Act as a general
regulation of the trafﬁc in intoxi-
cating liquors throughout the Do-
minion fell within the class of
subject, ‘ The regulation of trade
and commerce,’ enumerated in that
section, and was on that ground a
valid exercise of the legislative
powers of the Parliament of Canada.
The Privy Council decided the case
on other grounds. I am wholly
unable to see how the power
granted to township municipalities
to prohibit the retail sale of liquor
by any reasonable construction
comes within the words ‘ trade
and commerce,’ as used in the
Federation Act. The power, as
already pointed out, had been for
many years vested in the townships.
If such a construction prevail, it
would seem to me to interfere most
extensively with many powers
granted by our Municipal Acts.
They are full of provisions, not
only for licensing, but for regula-
lating, governing, and in many
cases preventing, acts locally affect-
ing trade and commerce in the
locality, such as auction sales of
goods; hawkers and pedlars; regu-
lating ferries; for preventing exhi_
bitions held or kept for hire or
proﬁt; bowling alleys and other
places of amusement; limiting the In 9'6 THE
number of victualling houses ; regu—
lation of markets and the sale of
certain goods therein and on the
streets—most extensively inter-
fering with the rights of sale and
trading in cities and towns; for
regulating and preventing various
manufactories ; preventing danger-
ous trades; forestalling and re-
grating, &c. All these powers
existed at the confederation, and
I am of opinion that there can be
no interference with such power
by any fair interpretation of the
words ‘ trade and commerce.’ I
arrive at these conclusions in my
view of this prohibition clause. I
read it as it stands in the Act of
1868, and in connection with the
rest of that Act, and especially with
the 252nd section. Although it
uses the words ‘ prohibiting totally
the sale thereof,’ I think these
words must refer to the preceding
words, which deal with the selling
by retail, and merely prohibit such
selling in every place. The sub-
ject of legislation in the Act was
the granting of shop and tavern
licenses, for limiting their number,
&c., and councils are allowed to
prohibit the sale by retail in inns or
houses of entertainment, and wholly
to prohibit the sale thereof in shops
and places other than houses of
public entertainment. I read this
as necessarily conﬁned to the retail
trade, which is the subject dealt
with, and for which a license is
required. Then, when sec. 252
declared the general law to be that
no license should be required to sell
in packages of not less than ﬁve
gallons, it could not be intended
that such rights should be destroyed
under the wording of the prohibi-
tory clause, or, in other words, that
such clause extended to the sale of
liquors in manufactories within the
municipality in the speciﬁed larger
quantities. I think the general
wording of the Act and its general
clauses clearly indicate that this
prohibitory clause is dealing solely
with the retail business. The
ONTARIO LOCAL
OPTION Ac'r.
208 B.N.A. ACT, s. 92 (9).—OLD LAWS in re BREWERS.
In re THE
ONTARIO LOCAL
OPTION Aer.
practice of ‘ drinking,’ as generally
understood in the country, is aimed
at, whether it may occur in tavern,
shop, or any other place. I think
it to be a strained and unnecessary
construction to apply it to all the
dealings of brewers and distillers in
the sale of their goods in the ordi_
nary course of their business. If
they sell in the style of the tavern-
keepers in the retail drinking busi-
ness, they bring themselves within
the bye_law. The late Sir William
Richards, in his judgment in Slavin
w. Orillia, 36 U. P. Q. B. 159,
clearly recognises the meaning of
the section to be conﬁned to the
retail business. So construed, it
can hardly be said to infringe on
the subject of ‘ trade and com-
merce,’ which belongs to the Do
minion authority. The following
question has also been submitted
for our opinion :-—‘ Has the
council of a township, city, town,
and incorporated village authority
to pass bye-laws for prohibiting the
sale of liquors in the original pack-
ages in which the same have been
received from the importer or
manufacturer; provided that the
bye-law before the ﬁnal passing
thereof has been duly approved by
the electors of the municipality in
the manner provided by the sections
in that behalf of the Municipal
Act? ’ I cannot but regret that it
should be thought proper to submit
such a question to this Court. It
is not a question as to any courses
taken or to be taken by the Execu-
tive Government, but it refers
wholly to the course to be adopted
by the municipal authorities in the
introduction and passing of their
bye-laws. It is in effect the same
as asking a deﬁnition of the
powers of assignees in insolvency,
or of sheriffs, registrars, or of rail-
way or other companies chartered
by the province. I think, with
much respect, that a perusal of the
Act of 1890, c. 53., would not lead
ordinary minds to the opinion that,
although the latter authorizes the
submission of ‘ any matters which
he (the Lieutenant - Governor)
thinks ﬁt to refer,’ it would be
reasonable to expect this application
of the general language to ques-
tions, not as to the validity of acts
of the legislature or the executive,
but as to the acts of municipal or
trading corporations, or of any class
of officials. The legislature in the
late Act, 54 Vict. c. 46., disclaims all
interference with the 252nd section
of the Municipal Act, 29 & 3O Vict.
c. 51., passed by Canada, as to
tavern or shop licenses being re-
quired for the sale of liquors in the
original packages of not less than
ﬁve gallons or one dozen bottles,
save in so far as modiﬁed by sub-
sec. 9 of sec. 249, being the section
as to bye-laws for prohibition. No
notice is taken of the repeal by the
local legislature of this 252nd clause,
and a large number of others by
the statute 32 Vict. c. 32. This
leaves it, as I understand, conceded
that the brewers’ and distillers’
clause remains still the law of the
land. If so, I consider that they
may sell the quantities mentioned
in the original packages; in other
words, that the municipality cannot
interfere with their action. After
so selling, it would then seem to
follow that the purchaser could not
retail the contents or sell after
bulk broken. But the words of the
sec. 252 go further, and appear to
authorize a sale of the original
packages as received from the
manufacturers, that is, the dis-
tillers. If this section be held
to govern, it will have this construc-
tion. I think the intention of the
legislatures, both federal and pro-
vincial, has been throughout to
preserve the trade interests of
brewers and distillers as distinct
from the retail dealers. I therefore
answer the 3rd question in the
negative. As to the 4th question
( ‘ Is a bye-law in terms of sec. 18,
53 Vict. c. 56., or as explained by
sec. 1, 54 Vict. c. 46., invalid, where
the bye-law does not provide a ﬁne
or penalty for sales contrary to its
provisions? ’) I answer it in the
B.N.A. ACT, s. 92 (9).—ONUS ON DOMINION.
209
negative. I do not consider that a
bye-law omitting to provide a pen-
alty is necessarily bad. It may be
. ineffective, but I do not think any
court would quash it on any such
ground. Besides, there might be some
general law in existence providing
for penalties under all bye-laws.”
The above is a nearly full udgment ;
the following is an extract :—
Burton, J.A., said (p. 585,
18 O. A. R): “It does not sug-
gest itself to my mind as at all
conclusive in favour of the power
of the local legislature to deal with
the subject of prohibition under
the words ‘ municipal institutions,’
that provisions in reference to that
subject were at the time of the
passing of the Confederation Act to
be found in our own Municipal
Acts, and had been so for many
years. It must not be forgotten
that the legislature of the old pro-
vince of Canada, which passed
those Acts, had plenary powers of
legislation, including the power to
regulate trade and commerce, to
deal with the criminal law, and in
fact all the powers which are now
distributed between the Parliament
of the Dominion and the legisla-
tures of the provinces. Having
that power, it was clearly competent
to the legislature to conﬁde to a
municipal council or any other
body of its own creation, or to
individuals of its selection, author-
ity to make bye-laws or resolutions
as to subjects speciﬁed in the enact-
ment, with the object of carrying
it into effect; and the provision in
question being found therefore
within a Municipal Act in one of
the provinces, furnishes no con-
clusive evidence that by the words
‘municipal institutions’ it was in-
tended to confer every power which
might be contained in such an Act
upon the legislatures of the pro-
vinces.” “It may, not without
some reason, he contended that
there is no inherent connection be-
tween the liquor tratﬁc and muni-
cipal institutions, which is perfectly
true, but there was a constitutional
S 2340.
connection. III, I believe, all the
provinces the power to regulate by
the granting licenses to sell intoxica-
ting liquors existed; whilst in many
the power to regulate even to the
extent of prohibiting it altogether
existed as a matter of police or
municipal regulation, so that we
have to regard it in the view that
at that time the regulation ‘and pro-
hibition had come to be regarded
as municipal regulations, which
were guaranteed to the provinces
under confederation, and made part
of their rights by sec. 92. I come,
therefore, individually, to the con-
clusion, although this point has not
yet been passed upon by the Judicial
Committee, that under the term
‘ municipal institutions’ the local
legislatures’ power to prohibit was
included, and if the power, the ex-
clusive power to deal with this
question.” “ Being then a matter of
that kind, and one of a merely local
nature, that is to say, conﬁned to
the provinces, the onus is on those
who contend that it is ultra oz'res
to show that it comes within the
powers granted to the Dominion in
the 9lst sec.” “The ratio (leci-
clendi in Russell o. The Queen in
the Privy Council proceeded, as I
understand it, upon this principle.
The Judicial Committee there held
that the case fell primt’ifacie within
sec. 91, under the general power
(in addition to the enumerated
powers) to make laws for the
‘ Peace, Order, and Good Govern-
ment of Canada’; and it became
necessary, therefore, to ascertain
whether it also fell within the
enumerated classes of subjects in
sec. 92 assigned exclusively to the
provincial legislatures. It appears
upon the face of the judgment
that there were only three classes
of subjects under which the appel-
lants’ counsel contended that the
case came under sec. 92, namely :~—
(1) Shop and Tavern licenses for
raising of a revenue. (2) Property
and Civil Rights in the province.
(3) Matters of a local and private
nature within the province. It is
O
In re THE
ONTARIO LOcAI.
OPTION ACT.
210 B.N.A. ACT, s. 92 (9).—-OVERB'ORNE BY DOMINION.
In re THE
ONTARIO LOCAL
OPTION ACT.
perfectly clear that it did not fall
within any of these. I have gone to
the trouble of obtaining the case pre-
sented to the Judicial Committee in
that appeal, and ﬁnd no reliance was
placed upon sub-sec. 8, but it was
mainly argued that the power of the
province to deal with the question
was derived from sub-sec. 9; and
Sir Richard Couch, in commenting
upon it in a subsequent case, says,
‘ I do not recollect sub-sec. 8 being
relied 011; I think all the clauses
that were relied upon in the argu-
ment are noticed in the judgment.’
. It is sometimes said that al-
though this sub-sec. 8 was not
called to the attention of the Ju-
dicial Committee in Russell '0. The
Queen, that that case was recon-
sidered and affirmed in Hodge 'v.
The Queen, but the same remark
applies to that decision. The
Judicial Committee were not in
that case considering, nor would
their attention be drawn to, that
sub-section, nor to 29 and 30 Vict.
c. 51. sec. 249, sub-sec. 9. The
question there arose under the
Ontario Liquor License Act, 187 7 ,
which dealt with a totally different
matter. I consider it as a mere
aﬁirmance of the principle of de—
cision laid down, not only in
Russell '0. The Queen, but in a
number of other cases, and I ven-
ture very humbly to submit that if
this sub-sec. 8 had been brought to
their Lordships’ attention, and they
had placed the same interpretation
upon it which I have done, it would
have followed as a matter of course
that, for reasons given in that judg-
ment, that decision would have been
different. And now I wish to
notice a point upon which I think
a good deal of misconception has
existed. It has never been sug-
gested in the Judicial Committee
(although I have seen some such
opinion expressed in other quar-
ters), that in any case which comes
under the residuary legislation of
the Dominion, that legislation can
in any sense override a subject
which comes under the speciﬁc
enumeration contained in sec. 92.
Thus, primal facic, in the Russell
case, under the words ‘ Peace, order,
and good government of Canada,’
the power would exist to pass a
prohibitory liquor law, but when~
ever you ﬁnd in sec. 92 ‘ municipal
institutions’ interpreted as we are
interpreting them, the right of the
Dominion to legislate upon the
subject is displaced; otherwise, as
remarked by Strong, J ., the Do-
minion Parliament, by generalizing
a law and making it applicable to
the whole Dominion, could nul-
lify the powers reserved to the
provinces under the Constitutional
Act. And he quotes in conﬁrma-
tion of his opinion a question put
to counsel by the President of the
Privy Council. ‘Do you mean
that by generalizing the powers
contained in sec. 92 the Dominion
Parliament can take away the
powers of the local legislature?’
A moment’s consideration will show
that they possess no such power.
I think the principle must be clear,
that neither the Dominion Parlia-
ment nor the local legislature can
attract to itself a jurisdiction in
matters assigned exclusively to the
other power by the mere device of
enlarging the geographical area so
as to include the whole of the pro-
vinces; nor, in the other case, by
restricting the area within which
the power is to be exercised. And
1 wish to add that there is no such
thing as overlapping contemplated
in the Act, nor any such principle
as local legislation giving way to
or being overborne by Dominion
legislation, as would appear some-
times to occur in the courts of the
United States, except in the two
cases provided by sec. 95. With
the exception of those two cases,
the distribution of legislative func-
tions is of an exclusive character,
and being exclusive, if it falls within
the jurisdiction of one parliament,
it is necessarily excluded from that
of the other. Once we ﬁnd that
the power to regulate or prohibit
the sale of intoxicating liquors is
B.N.A. ACT, s. 92 (9) .—FREDERICTON C. BINDING.
211
given under sec. 92, it must be read
as an exception to see. 91, which
would then read : The Parliament
may make laws for the peace, order,
and good government of Canada,
but this is not to interfere with the
right granted exclusively to the
local legislatures to regulate the
liquor traﬂic. That this is the
view taken by Lord Hobhouse in
the Privy Council appears, where
he says that Russell 7). The Queen
does not intend to decide that if the
subject is one attributed to the pro-
vincial legislatures the Dominion
can get seizin of it by extending it
beyond the province.” His Lord-
ship then referred to see. 95, and
continued: “ There is, in my
opinion, no general rule or prin-
ciple, and no ground for the con-
tention that I have sometimes heard
advanced, that in case of conﬂict the
legislature of the Dominion must
prevail; on the contrary, there can
be no such conﬂict. Each is
supreme upon the subjects en-
trusted to it, and it was assumed in
the Imperial Act that there could
be no conﬂict except in the two
enumerated cases [see 95.] If for
the reasons I have mentioned this
subject does fall within sub-sec. 8,
as a portion of the municipal insti~
tutions of the province, is there
anything in any of the powers as-
signed exclusively to the Parliament
of Canada to conﬂict with it? The
only one which can by any stretch of
interpretation be held to do so is that
relating to the regulation of trade
and commerce, and many of the
remarks I have made will equally
apply to this branch of the case.
If I am correct in assuming that
the right to pass a prohibitory law
exists in the local legislature, even
if it does incidentally affect trade
and commerce, it must be held, in
the language of that eminent and
learned judge, Dorion, C.J., that
this incidental power is included in
the right to deal with it; in other
words, the right so to deal with
trade and commerce must be re-
garded as an exception to the
general power. I should not re-
gard the words ‘regulation of trade
and commerce,’ in their unlimited
sense, even if uncontrolled by the
context in sec. 92 and other parts
of the Act, as extending to such a
regulation as a prohibitory liquor
law in a province; but, read in con-
nection with sub-sec. 8 of sec. 92,
they must, I think, be read as if it had
contained a proviso to this effect——
‘ but so as not to interfere with the
right reserved exclusively to the
provincial legislature to prohibit
the sale of intoxicating liquors.’
That is the rule of interpretation
laid down by the Privy Council in
a very early case, namely, that
sees. 91 and 92 are to be read to-
gether, and the language of one in-
terpreted, and, where necessary,
modiﬁed, by that of the other.
This would be my view were I at
liberty to state my own opinion,
but, as at present advised, I think
we are bound by the decision of the
Supreme Court in City of Frederic-
ton c. The Queen, 3 S. C. R. 505,
where that court held, Henry, J.,
dissenting, that the power to deal
with this subject was embraced
within sub-sec. 2, relating to the
regulation of trade and commerce.
It is true that the decision in the
Privy Council proceeded upon
other grounds, but they say ex-
pressly, ‘WVe must not be understood
intimating any dissent from the
opinion of the Chief Justice of the
Supreme Court of Canada, and the
other judges who held that the Act
fell within that section.’ It seems
to me that, until expressly reversed
or reconsidered, that judgment is
binding upon us, whatever may be
my own opinion. In the same way
the judgment of the Judicial Com-
mittee, though based upon a state
of facts which rendered any other
judgment, in my opinion, impos-
sible, is, until reconsidered upon
the additional material to which I
have referred, binding upon me as
a judgment. If, therefore, we had
been dealing with the general ques-
tion as to the right of the provin-
In re THE
ONTARIO LOCAL
OPTION AcT.
02
212
B.N.A. ACT, S. 92 (9).-sUMMARY OF OLD ACTs.
In re THE
ONTARIO LOCAL
OPTION ACT.
cial legislatures to pass a prohibi-
tory liquor law, I should have been
constrained to hold such legislation,
contrary to my own opinion, ultra
wires ,- but the question is conﬁned,
as I understand it, to the power of
the legislature to re-enact sub-sec. 9,
controlled at the time of confeder-
ation by sec. 252. Sub-sec. 9 is
not very clearly expressed, and I
must confess my ﬁrst reading of it
led me to the conclusion that it
referred to two distinct matters,
let, the prohibiting the sale by
retail in any inn; and, 2nd, the
prohibition altogether, whether by
wholesale or retail, in any place;
but upon further reading the various
Acts then in force relating to fer-
mented or other manufactured li-
quor, and sec. 252, I am satisﬁed that
the whole section was intended to be
conﬁned to sales by retail in inns,
and such sales as were authorized
by shop licenses, and I adopt my
brother Maclennan’s reasoning upon
this branch of the case. Being,
therefore, a mere police regulation
for the sale by retail, the enactment
is not open to the possible ob-
jection to which I have referred.
I answer the two ﬁrst questions
((1) Had the Legislature of Ontario
jurisdiction to enact the 18th
section of the 53 Vict. c. 56., and
entituled ‘ An Act to improwe the
Liquor License Laws?’ Or
had the legislature jurisdiction to
enact the said section as ex-
plained by sec. 1 of 54 Vict. c. 46.)
in the afﬁrmative. Question 3
[see abowe] I answer in the nega-
tive, assuming as I do that the
question is conﬁned to the power of
those bodies under the enactments
referred to in the two previous
questions now reviewed. As to
question 4 [see above], I do not
consider a bye—law under these
sections necessarily invalid because
it omits to provide a penalty.”
Maclennan, J .A., said (18 O.
A. R. pp. 596-7): “Coming to
the conclusion that the enactment
in question is conﬁned in both its
members to sales by retail, I think
it follows clearly that it was com--
petent to the Legislature of Ontario
to reenact it as falling within the
class of subjects ‘ Municipal insti-
tutions in the province,’ under
sub sec. 8, sec. 92.” “ It is
not necessary for the purpose of
answering the questions before
us to determine how far, by
reason of the existence at the
time of confederation of the
Dunkin Act [1864], the provinces
may under sub-sec. 8 of sec. 92
have the power of absolute pro-
hibition, and I desire to express no
opinion on that point one way or
the other. It is enough to say that
I think it clear that under that
section the province has the power
to revive the enactment in ques-
tion, and that our answer to the
ﬁrst two questions ought to be in
the affirmative. )Vith regard to
the third question, I am of opinion,
as incidental to the power to pro-
hibit the retail traﬂic in liquor, the
province must have the power, act-
ing bond ﬁde, to deﬁne from time
to time what constitutes retail
trafﬁc. WVe have seen what the
deﬁnition was in the Act of 1853
[see below, 16 Vict. c. 183. sec. 3,
sub-sec. 2, original packages con-
taining not less than ﬁve gallons].
It was substantially the same under
the Acts of 1858 and 1866. This
has been changed, and is now re-
gulated by the R. S. O. (1887)
c. 194, sec. 2, sub-secs. 2, 3, and 4.
In my opinion, the municipalities
named in the 3rd question cannot
at present prohibit under the re-
vived enactment such sales as are
described in sub-sec. 4” (Whole-
sale Licenses).
Osler, J .A., declined to give any
opinlon.
SLAvIN w. CORP. OF ORILLIA,
March 2, 1875, 36 U. C. Q. B.
p. 165, raised the question of the
Municipal Corporation of Orillia
to wholly prohibit the sale of
spirituous liquors in shops and
places other than houses of public
entertainment, and ' limiting the
B.N.A. ACT, s. 92 (ayémoma or LICENSING. 213
number of tavern licenses to nine. manner in which the revenue, for SLAVIN v-CORP-
And Richards, C.J., held this to
be within the power of the Corpo-
ration, under 32 Vict. c. 32., and
under sub-secs. 8 and 16 of sec. 92,
“ municipal institutions ” and “ mat-
ters of a merely local or private
nature” in the province, and that it
could not be held to be an inter_
ference with sub-sec. 2 of sec. 91,
“ Regulation of Trade and Com-
merce,” Richards, C.J., delivering
the judgment of the court
[Richards, C.J., Morrison, and
Wilson, JJ :——“At the time of
the passing of the B. N. A.
Act of 1867, the Municipal Insti-
tutions Act of Upper Canada then
in force was 29 & 3O Vict. c. 51.,
passed in August, 1866. By the
249th section of that Act, ‘The
council of every township, town,
and incorporated village, and the
commissioners of police in cities ’
might respectively pass bye-laws,
amongst other things: 4, ‘For
limiting the number of tavern and
shop licenses respectively; but in
no municipality shall tavern licence
certiﬁcates be granted in a propor-
tion greater than one for every 250
souls resident therein’; and 9,
‘ For prohibiting the sale by retail
of spirituous, fermented, or other
manufactured liquors in any inn
or other house of public entertain-
ment; and for prohibiting totally
the sale thereof in shops and places
other than houses of public enter-
tainment; provided the bye-law,
before the ﬁnal passing thereof, has
been duly approved by the electors
of the municipality in the manner
provided by this Act.’ At the
same time there was a statute,
27 8c 28 Vict. c. 3., in force com-
pelling brewers and distillers to
take out licences to manufacture
spirits and beer, and imposing a
duty of excise on the articles
manufactured by them; and these
articles were also subject to a duty,
on being imported into Canada, by
29 & 3O Vict. c. 6., on spirits and
strong waters to the extent of 70
cents a gallon for proof. The
the sale of ardent liquors by retail OF ORILLIA-
and in taverns, was raised was by
enacting that any person who
should sell ardent spirits without a
license should suffer a penalty;
then the mode of obtaining the
license was deﬁned, and the amount
payable therefor was to be ﬁxed,
as far as the municipality was con-
cerned, by the municipal authority.
At the time of the passing of the
B. N. A. Act, there prevailed in
this country a well established
mode of licensing shops and
taverns. Shop licenses were de-
clared in the Municipal Act of
1866, 29 & 3O Vict. c. 51., sec.
249, sub-sec. 1, to be ‘Licenses
for the retail of such liquors in
quantities not less than one quart
in shops, stores, or places other
than inns or places of
public entertainment.’ And under
sec. 252 of the same Municipal
Act it was provided that ‘No
tavern or shop license shall be
necessary for selling any liquors in
the original packages in which the
same have been received from the
importer or manufacturer, provided
such packages contain respectively
not less than ﬁve gallons or one
dozen bottles.’ The statute under
which the two bye-laws Nos. 53 &
5% were passed was 32 Vict. c. 32,
Ontario. Sec. 40 of that Act
repealed the sections from sec. 249
to 263, inclusive, of the Municipal
Act of Upper Canada, 29 & 3O
Vict. c. 51., in relation to the
granting of licenses, and introduced
similar provisions into the statute
which was then passed.” [His
Lordship then read sec. 6, sub-
secs. 4, '7, 8, 9, of 32 Vict. c. 32.,
and continued] “It is said that
the local legislature of the pro-
vince of Ontario had no autho-
rity to pass the last statute of
32 Vict. c. 32., or at all events the
portions of the statute which
authorized the municipality to pass
bye-laws to limit the number of
tavern licenses to be granted, and
to prohibit the granting of shop
214
B.N.A. ACT, s. 92 (9).-Nor COMMERCE.
SLAVIN v. CORP.
or ORILLIA.
licenses. If the Legislature of
Ontario had no power to make
these provisions in their statute,
had they power to repeal those pro-
visions in the Act of the Parliament
of Canada? And if they had no
power to repeal these sections they
must now be in force, the 129th
section of the B. N. A. Act
directing that ‘ All laws in force in
Canada at the Union
shall continue as if the
Union had not been made; subject
. . to be repealed, abolished, or
altered by the Parliament of
Canada, or by the legislature of the
respective province, according to
the authority of the Parliament, or
of that legislature, or under this
Act.’ Under the head of ‘ Distri-
bution of legislative powers,’
‘ Powers of the Parliament,’ by
sec. 91 of the B. N. A. Act it is
provided that.” [His Lordship read
the beginning of sec. 91 ; sub-secs.
2; 8t 3; and sec. 92; and sub-secs.
8; 9; 15; & 16; and continued]
“It is contended that the limiting
the number of licenses to be
granted to taverns in a munici-
pality, or preventing the issuing of
shop licenses, is interfering with
the exclusive right of the legisla-
ture to pass laws for the regulation
of commerce, and that the statute
of the Ontario Legislature autho-
rizing this to be done is ultra
m'res. On the other hand, it is
urged that the regulating of
taverns, the limiting the number
of licenses, and the dealing with
the subject of keeping and re-
tailing of certain classes of articles
must be, in the nature of police
matters, properly pertaining to the
powers of municipalities, and must
be ‘ matters of a merely local and
private nature in the province.’
In January Term, 1847, in the
Supreme Court of the United
States, judgments were pronounced
in what are there styled the License
Cases, 46 S. C. U. S. (5 How) 504.
The cases were argued by some of
the most distinguished lawyers in
the United States, including the
late Daniel Webster. The doc-
trine contended for by the parties
who opposed the laws was, that
though they authorized the com-
merce in wines and spirits in
quantities not less than 28 gallons,
they were repugnant to the con-
stitution and laws of the United
States: (1) In the power to regu-
late foreign commerce. (2) In the
power to collect revenue on imports
into the several States. In
the equal apportionment of taxes
and duties in all the States. (4)
In the power to make treaties.
The general course of argument
was, that no State had the right to
prohibit the sale of merchandise by
wholesale or retail, authorized by a
valid law of Congress, or by
treaties, to be imported into its
markets, the retail sale being as
indispensable to the object of im-
portation—namely, use and con-
sumption—as the wholesale. If a
State can control, to‘ the extent
of prohibition, commerce in im-
ported merchandise up to her
boundaries, or the instant it shall
pass in bulk from the hands of
the importer, she can thereby ex-
clude foreign commerce, and deny
her markets to foreign nations.
The laws of Congress make no
distinction between commerce in
imported wines and spirits and other
foreign merchandise. The recog-
nition of the power of a State to
exclude the ﬁrst from its market
whenever public sentiment requires
it, must embrace the like power in
respect to all other descriptions of
imports whenever the public senti-
ment of a State demands its exer-
cise. The point where regulation
ceases and prohibition begins is
the point of collision and of un-
constitutional operation of a State
law affecting foreign commerce.
In any and all cases the power to
deny sale includes the power to
prohibit importation; and the ques-
tion of power is the same, whether
exercised directly by the legislature
or indirectly by its agents there-
unto authorized. The operation of
B.N.A. ACT, s. 92 (9).——S1MILAR LAWS.
215
the law on foreign wines and spirits
deprives imported articles of their
vendible quality. The right to
sell is connected with the payment
of duties, and the right to sell must
extend beyond the importer, or it is
an inoperative right. By treaty
with France their wines are ad-
mitted to consumption in the
markets of the U. S. The law
complained of shuts the markets of
the States against the fair and just
operation of those laws and treaties
of the U. S, and renders them so
far inoperative. The Act blends
two powers to be exercised at
pleasure under the statute—the one
legitimate, to regulate; the other
unconstitutional, to prohibit when-
ever public sentiment of the State
comes up to that point. If one
State can exclude one or more
articles of import, she pays so
much less revenue than other
States that admit all, and in this
way the ‘ duties are not uniform
throughout the U. S.’ If a State
shuts its markets against one or
more articles admitted under a
reciprocal treaty with a foreign
nation by denying a sale of it, then
the U. S. cannot, in good faith,
perform its reciprocal engagements.
“ The line of argument in favour
of the constitutionality of the law
was after this sort :—The State
has a right to provide for the health
of its citizens by police regulations.
A law restraining an indiscriminate
traffic in wines and spirits, designed
to protect life and health by pro-
moting temperance and sobriety, is
a police law. In Brown 1). Mary-
land, 25 S. C. U. S. (12 Wheat.)
p. 443, the court observes, ‘The
power to direct the removal of gun-
powder is a branch of the police
power, which unquestionably re-
mains, and ought to remain, with
the States,’ and ‘ the removal or de-
struction of infectious or unsound
articles is, undoubtedly,’ a branch
of the same power. Harbour laws,
ballast laws, &c., are of a similar
character. They are sustained be-
cause they are police regulations of
the States, and are not regulations
of foreign commerce, though for
the purpose of protecting health
and property they necessarily deal
with it, and such laws are not in-
compatible with or repugnant to
foreign commerce. Police laws
have in fact everywhere been main-
tained against the supreme power
of the U. S., notwithstanding this
obvious interference. The design
of the law is manifestly to prevent
tippling and disorder by promot-
ing temperance and sobriety, and
whether it be a regulation of trade
or police, or both, relates to affairs
completely internal. Is this a suit-
able matter to engage legislative at-
tention? Does such traffic demand
restraint, or does the legislature
employ it as a pretext to regulate
foreign commerce? Whether an
applicant for a license is a suitable
person, and whether the public good
requires the grant to be made, are
facts to be ascertained which must
depend upon evidence, and the ques-
tion cannot be decided without an
exercise of judgment. It is diffi-
cult to comprehend how a selection
of suitable persons or suitable places
can be made without the exercise
of so much discretion as such a
decision implies. Police laws may
be carried to any extent which the
public welfare demands. If the
cargo of a vessel is infected and
dangerous, it is destroyed, and all
revenue and private interests are
sacriﬁced for the public safety.
Gunpowder is required to be landed
and stored in a way which saves
life and property from jeopardy.
Ballast is required to be deposited
where it does no mischief to navi—
gation. The publication by sale
or otherwise of obscene books,
prints, pictures, &c., is an indict-
able oﬁence. Yet such. laws are
undeniably constitutional, and are
maintained public regulations on
the ground that the public health,
morals, and property, demand pro-
tection. The legal provision in
that behalf must be such as to
meet the emergency. If excessive
SLAvIN v. CORP.
or ORILLIA.
216
B.N.A. ACT, s. 92 (9).—AMERICAN DICTA.
SLAvIN v. CORP.
OF ORILLIA.
indulgence in intoxicating drinks
be an evil, it should be guarded
against by wise and prudent re-
gulations. If the evil be of such
magnitude as to demand stringent
provisions reaching to exclusion,
there is no constitutional objection
to such legislation. The reason-
ing for the law it was contended,
established, amongst others, these
propositions :— That the traffic
in wines and spirituous liquors
has, in the public judgment, as ex-
pressed through ages and centuries,
demanded a restraint and regula-
tion; that if the right of a State to
maintain police laws is complete
and unqualiﬁed, there can be no
constitutional conﬂict with the laws
of the U. S., as the power is abso-
lute and supreme; see also 25 S. C.
U. S. (12 Wheat.), pp. 549, 550,
571, as to admitted police powers.
The license system was adopted
in England at a very early period
of her history, and has ever since
composed a part of the police sys-
tem of that kingdom : Crabb’s
History of the Eng. Law, 477.
License regulations were adopted
by the provincial legislature of New
Hampshire: Provincial Laws of
New Hampshire, ed. 1761, pp. 64,
143.
“In giving judgment, Taney,
J., stated, 46 S. C. U. S. (5
How), p. 57 3, that ‘ the validity of
each of them (the laws) has been
drawn in question upon the ground
that it is repugnant to that clause
of the constitution of the U. S.
which confers upon Congress the
power to regulate commerce with
foreign nations and among the
several States.’ And at p. 577,
‘These laws may, indeed, dis-
courage imports and diminish the
price which ardent spirits would
otherwise bring. But although a
State is bound to receive and to per-
mit the sale by the importer of any
article of merchandise which Con-
gress authorises to be imported, it
is not bound to furnish a market
for it, nor to abstain from the pas-
sage of any law which it may
deem necessary or advisable to
guard the health or morals of its
citizens, although such law may
discourage importation, or diminish
the proﬁts of the importer, or lessen
the revenue of the general Govern-
ment. And if any State deems the
retail and internal traffic in ardent
spirits injurious to its citizens, and
calculated to produce idleness, vice,
or debauchery, I see nothing in the
constitution of the U. S. to prevent
it regulating and restraining the
traffic, or from prohibiting it al-
together, if it thinks proper.
McLean, J ., in his judgment, ob-
serves, at p. 589, ‘A license to
sell an article, foreign or domestic,
as a merchant, or innkeeper, or
victualler, is a matter of police and
of revenue within the power of a
State. It is strictly an internal re-
gulation, and cannot come in corn
ﬂict, saving the rights of the im-
porter to sell, with any power
possessed by Congress.’ And at
p. 590: ‘The license system, as
adopted in all the States, restrains
persons from selling by retail who
have not taken a license; and a
license to retail spirits is granted
by the court, or some other body,
at its discretion and on certain con-
ditions. The applicant to obtain a
license must be recommended by a
majority of the select men of the
town, as a person of good moral
character. . . . The necessity of a
license presupposes a prohibition
of the right to sell to those who
have no license. For if a State
may requirea license to sell, it may,
in the exercise of a proper discre-
tion, limit the number of such
licenses as the public good may
seem to require.’ And at p. 591,
‘ A discretion on this subject must
be exercised somewhere, and it can
be exercised nowhere but under the
State authority. The State may
regulate the sale of foreign spirits,
and such regulation is valid, though
it reduces the quantity of spirits
consumed.’ And at p. 592, ‘In
all matters of government, and es-
pecially of police, a wide discretion
B.N.A. ACT, 5. 02 (9).—PROVIN(JES BEST JUDGES.
217
is necessary. It is not susceptible
of an exact limitation, but must be
exercised under the changing exi-
gencies of society. In the progress
of population, of wealth, and civili-
sation, new and vicious indulgences
spring up, which require restraints
that can only be imposed by the
legislative power. . . . And if the
foreign article be injurious to the
health or morals of the community,
a State may, in the exercise of that
great and conservative police power
which lies at the foundation of its
prosperity, prohibit the sale of it.’
No one doubts this in relation to
infected goods or licentious publi-
cations. Such a regulation must
be made in good faith, and have for
its sole object the preservation of
the health or morals of society. If
a foreign spirit should be imported
containing deleterious ingredients,
fatal to the health of those who use
it, its sale may be prohibited.
“ Caron, J., at p. 611, says :—~‘ I
admit as inevitable, that if the
State has the power of restraint
by licenses to any extent, she has
the discretionary power to judge of
its limit, and may go to the length
of prohibiting sales altogether, if
such be her policy; and if this
court cannot interfere in the case
before us, so neither could we in-
terfere in the extreme case of entire
exclusion, except to protect imports
belonging to foreign commerce as
already deﬁned.’
“ Woodbury, J ., said, at p. 621 :
-—‘ The leading object of the license
is to insure the sale of spirits in
quantities not likely to encourage
intemperance, and at places and
times, and by persons, conducive to
that end.’ And at p. 624: ‘ This
local, territorial, and detailed legis-
lation should vary in different
States, and is better understood by
each than by the general govern-
ment; and hence, as the colonies
under an empire usually attend to
all such local legislation within their
limits, leaving only general outlines
and rules to the parent country at
home, as towns, cities, and corpora-
tions do it through bye-laws for
themselves after the State legis-
lature lays down general prin-
ciples, and as the war and navy
departments, and courts of justice
make detailed rules under general
laws; so here the States, not con-
ﬂicting with any uniform general
regulations by Congress as to for-
eign commerce, must for conveni-
ence, if not necessity, from the very
nature of the power, not be debarred
from any legislation of a local and
detailed character on matters con-
nected with that commerce omitted
by Congress.’
“ In deciding that these laws were
constitutional, several of the judges
referred to the doctrine now well
established in the U. S., that the
powers which were not delegated by
the State governments to that of
the U. S. remained with the States,
and contended that the power to
license and regulate the sale of
wines and spirituous liquors was
one which was not surrendered in
giving to Congress the right to
regulate commerce. Here, how-
ever, our local legislature, it is con-
tended, only possesses the powers
expressly granted to it, the more
extended powers remaining with
the Dominion legislature. Admit—
ting this to be so for the purpose
of the present discussion, it by no
means follows that the local legis-
lature does not possess the power
in this matter which would be
necessary to sustain the two bye-
laws referred to.
“ As far as the province of Upper
Canada was concerned, the dele-
gates who represented the views of
that section of the united province
of Canada, well knew what the
municipal institutions of Upper
Canada were, and some one of
them had probably introduced and
carried through the legislature,
only a short time before, the Act
passed on 15th August 1866, en-
tituled ‘An Act respecting the
Municipal Institutions of Upper
Canada,’ 29 and 30 Vict. c. 51.
They knew that in the sections of
SLAVIN v. CORP.
or ORILLIA.
218
B.N.A. ACT, 9. 92 (9).-—UNION AGREEMENT.
SLAVIN 9. Com.
or ORILLIA.
that Act already referred to, the
power was granted to the munici-
palities in Upper Canada, under
certain circumstances, to limit the
number of taverns, and to prohibit
the licenses of shops for the sale
of spirituous liquors in the several
municipalities. When, then, this
Imperial Act uses the very words of
the title of this Bill, in giving as one
of the class of subjects on which
the provincial legislature may pass
laws, namely, ‘ municipal institu-
tions in the province,’ can there be
any reasonable doubt that it was
expected and intended that the
‘municipal institutions ’ which
were to be constituted under that
authority would possess the same
power as those which were then
in existence, under the same name
in the province? I should think
not. I think we may properly
hold that the powers now con-
tended for were intended to be,
and were, vested in the provincial
legislature by these very words.
Their being followed by ‘Shop,
saloon, tavern, auctioneer, and other
licenses, in order to the raising of
a revenue for provincial, local, or
municipal purposes ’—-does not, in
our opinion, show it was the inten-
tion to limit the exercise of the
powers which municipal institutions
- ought to have, and which they had
had, of limiting the sale by retail
in inns or by prohibiting the sale
thereof in shops, but rather to re-
move all doubts as to their right to
raise revenue either for provincial,
local, or municipal purposes by the
the issuing of these and other licen-
ses. The B. N. A. Act of 1867
must have been passed on a confer-
ence with the delegates from the
different provinces, and the various
provisions as to the powers and
subjects of legislation by the Do-
minion and local parliaments must
have been suggested by these dele-
gates. Their suggestions must have
been based on personal knowledge
of the various modes in which legis-
lation on those subjects had been
had in the various provinces before
the confederation, and if it had been
intended that similar legislation
should not have been continued as
before by the various provinces,
there is no doubt that such inten-
tion would have been expressed in
the Act. '
“And when words and expres-
sions are imported into that Act
which have been in common use in
legislating for these provinces, we
must continue interpreting these
words in the same manner and to
mean the same thing as we decided
they meant in the statutes passed
by our own legislatures. It would
create great difficulties and incon-
venience if we did not act on this
rule.
“ Under the 252nd section of the
Municipal Act of 1866, it was de-
clared that no tavern or shop license
should be necessary for selling
liquors in the original packages in
which the same have been received
from the importer or manufacturer,
provided such packages contain
respectively not less than ﬁve gal-
lons, or one dozen bottles. The
shop, saloon, and tavern licenses, I
think we may assume, were for the
purpose of allowing the parties to
sell by retail, and the prohibitory
power, under the Municipal Act of
1866, was to prohibit the sale by
retail—sec. 249, No. 9.
“ The reference to selling spirit-
uous liquor by retail was made
at a very early period, in re-
lation to the sale of spirituous
liquors in Canada. By the Im-
perial statute, 14 Geo. III. e. 88.,
sec. 5, a duty of £1 16$. for any
license to any person for keeping a
house or any other place of public
entertainment, or for the retailing
of wine, brandy, rum, or any other
spirituous liquors, was imposed.
And by the provincial statute of
U. C., 37 Geo. III. e. 12., sec. 1,
every shopkeeper who sells wine,
brandy, rum, or other spirituous
liquors in less quantity, at any one
time, than three gallons, shall be
possessed of a license for that pur-
pose. The legislature of the pro-
B.N.A. ACT, s. 92 (9).-PREVIOUS LAWS.
219
vince of Canada, up to the time of
the confederation of the provinces,
seems to have limited the granting
of licenses for the sale of wines and
spirituous liquors to shopkeepers,
and to tavern and saloon keepers,
and the like, who sold by retail,
and did not make it necessary for
the importer or manufacturer to
take out a license to sell when sell-
ing by wholesale, which, at ﬁrst,
was limited to quantities not less
than three gallons, and latterly to
ﬁve gallons. The legislation as to
the excise on the manufacture of
liquors, and the licensing of those
engaged in that business, seems to
have been kept separate from the
legislation as to granting licenses
to shopkeepers and tavern keepers.
We think, looking at the legislation
by the province of Ontario as ap-
plicable to the giving the powers of
limiting the number of taverns in
a municipality, or prohibiting the
sale by retail of spirituous liquors
by shopkeepers in such munici-
pality, that this is a power which
may be properly exercised by the
local legislature as a matter chieﬂy
of police, of a merely local and pri-
vate nature, when it does not inter-
fere with the sale of imported or
manufactured liquors otherwise than
as by retail.
“ We further think that the power
may be exercised, looking at the
nature of the legislation on the sub-
ject, under the power given to the
local legislature to legislate exclu-
sively in relation to municipal insti-
tutions, and that the power to legis-
late as to shop and other licenses,
in order to the raising of arevenue,
does not limit such power, but was
so placed there rather with a view
of removing all doubts as to the
right of the provincial legislature to
raise a revenue by those means.”
[His Lordship then quoted Mar-
shall, C.J., in M‘Culloch v. State
of Maryland, 17 S. C. U. S. (4
VVhea-t), pp. 407, 409, 421, and in
Brown v. State of Maryland, 25 S. C.
U. S. (12 Wheat.) p. 436, and John-
son, J ., in Gibbons v. Ogden, 22
.230, and continued]
S. C. U. S. (9 Wheat), pp. 229,
“ \Ve think
the party who apply to quash
these bye-laws have failed to shew
that the legislature of the province
of Ontario had not a right to pass
the statute under which they were
framed. On the contrary, we think
they have the power conferred on
them to pass such bye-laws by the
reasonable and proper construction
of the words of the B. N. A. Act
of 1867. We think the course of
legislation in Canada previous to
the passing of that Act shews that
the granting of licenses to sell
wines and ardent spirits by retail
was a matter properly entrusted to
the municipal institutions in this
province, and that the power to
prohibit such sale under certain
circumstances was also proper to
be entrusted to those institutions;
that the power to legislate for
such institutions necessarily carries
with it the right to confer on such
institutions all such powers, par-
ticularly of police, as could be most
conveniently and with advantage to
the community exercised by them,
and when such matters may be said
to be of a merely local and private
nature in the province, they cannot
be said to interfere with the rights
possessed by the Dominion Parlia-
ment. \Ve think the right to license
brewers and distillers, and to im-
pose duties of excise on their manu-
factures, is one that has never been
conferred on municipalities in this
country, and would not properly
come within the power usually con-
ferred on municipal corporations.
They have always been looked upon
more as matters of a quasi-national
character than of the character per-
taining to municipalities. The im-
position of taxes on wines and spirits
imported from abroad has also been
treated and considered in the same
way; and in all our statutes of a
prohibitory character passed before
the confederation, the right of the
importer and manufacturer to keep
and sell wines and spirituous liquors
by wholesale has been recognised
SLAVIN v. Coar.
or ORILLIA.
220 B.N.A. ACT, s. 92 (9).-IMPERIAL LOCAL LICENSES.
SLAVIN 2:. 00M.
or ORILLIA.
IAQUOR
TRAFFIC Ac'rs.
and preserved. The rights of the
manufacturers and importers are
not interfered with improperly by
a municipality limiting the num-
ber of houses to be licensed, or for-
bidding shops to be licensed within
its territorial limits. This may be
done by the municipalities, and im-
porters and manufacturers still have
the right to keep and sell by whole—
sale the articles of commerce which
they have imported or made.” His
Lordship then said the court con-
sidered the two bye-laws were good,
and concluded by saying: “ Though
the Acts of 1873 and of 1869 are
repealed by the statute of 1874,
yet by that Act, the bye-laws then
in force were continued until re-
pealed, or other provisions made as
to the matters under that Act.”
The Canadian Act, 30 May 1849,
12 Vict. c. 81., intituled “ An Act
to provide, by one general law, for
the erection of municipal corpora-
tions, and the establishment of regu-
lations of police in and for the
several counties, cities, towns, town-
ships, and villages in Upper Can-
ada. By sec. 31 each municipality,
&c., may make bye-laws for the
following :—Sub-sec. xiv. : “ For
regulating inns, taverns, ale houses,
victualling houses, ordinaries, and
all houses where fruit, oysters,
clams, victuals, or spirituous liquors,
or any other manufactured bever-
age, may be sold, to be eaten or
drank therein, and all other places
for the reception and entertainment
of the public within the jurisdiction
of the corporation of such township,
and to limit the number of them;
and in all cases where there exists
no other provision by law for the
licensing of such houses, to provide
for the proper licensing of the same,
at such rates as to the corporation of
such township may seem expedient;
the proceeds of such license, in cases
not otherwise appropriated by law,
to form part of the public funds of
such township, and to be disposed
of as the said corporation may con-
sider advisable.
The preamble of 13 & 14 Vict.
c. 65., 10 August 1850, an Act to
amend the laws relative to tavern
licences in Upper Canada, was :
“ Whereas it is expedient to vest in
municipal authorities in Upper
Canada the power of ﬁxing the
number of taverns, beer-shops, and
other houses and places of public
entertainment where wines and
spirituous or fermented liquors are
sold, or of prohibiting such houses
or places in the said municipalities
respectively, and of prescribing the
conditions on which licenses to keep
the same shall be obtained and held,
and the duty which shall be paid
thereon over and above that imposed
on persons keeping such houses
and retailing wines and spirituous
liquors therein by the (Imperial)
Act 14 Geo. 3. c. 88., an Act to
establish a fund towards further de-
fraying the charges of the admini-
stration of justice and the support
of the civil government within the
province of Quebec: Be it therefore
enacted by the Queen’s Most Ex-
cellent Majesty, &c. That so
much of the Act of Upper Canada
of 59 Geo. 3. c. 2., an Act to alter
the laws now in force for granting
licenses to innkeepers, and to give
to the justice of the peace in general
quarter session authority to regulate
the duties hereafter to be paid on
such licenses; or of the Act 6 Will.
4:. c. 4., an Act to repeal certain por-
tions of 36 Geo. 3. c. 3., intituled an
Act to amend the manner of licens-
ing public houses and for the more
easy convicting of persons selling
spirituous liquors without a license,
&c.; or of the Act 3 Vict. c. 20.,
an Act for further regulating the
manner of granting licenses to Inn-
keepers and to the keepers of ale
and beer houses within this pro-
vince; or of the 3 Vict. c. 21., an
Act to continue and make perpetual
the Act 59 Geo. 3. c. 2., an Act to
alter the laws now in force for grant-
ing licenses to Innkeepers, and to
give to the justices of the peace in
general quarter session, &c., autho-
rity to regulate the duties to be
paid on such licenses; or any other
B.N.A. ACT, s. 92 (9).—DOUBLE LICENSES.
221
Act or law in force in Upper Canada
as vests in any justice of the peace
the power of granting certiﬁcates
entitling the party to whom they
are granted to obtain licenses to
keep Inns or Houses of Public En-
tertainment, or of making rules and
regulations for the conduct of such
Innkeepers, or of repealing such
rules and regulations, or of ﬁxing
the duty or sum which any person
is required to pay for such license
or before he can obtain the same,
or of repealing or altering any duty
or sum so ﬁxed or as may be incon-
sistent with any provision of this
Act, which is to be acted on before
the 1st of March next,-—shall be and
is hereby repealed, except the 7th
and 8th sections of the provincial
Act thirdly above cited. Section 2:
Neither the repeal of the said
Acts nor anything in this Act con-
tained shall be construed to repeal
or affect any duty or sum payable
on licenses to vend wine, brandy,
and spirituous liquors by retail to be
granted or issued in Upper Canada
to shopkeepers or others not keep-
ing inns or places of public enter-
tainment, or any provision for pre-
venting the vending or imposing
any penalty for the vending of the
same by such persons, or in any
steamboat or vessel, without a license,
or for the recovery and distribution
of any such penalty. Section 4:
That the municipality of each
township or incorporated village,
the Town Council of each incor-
porated town, and the common
council of each city of Upper
Canada, shall have power . to make
bye-laws, for limiting the number
of inns or houses of public enter-
tainment in such township, village,
town, or city for which licenses to
retail spirituous liquors to be drunk
therein shall be issued, to be in
force after the last day of February
1851 (or for prohibiting the issuing
of any such licenses, for any house
in their respective municipalities) ;
and for ﬁxing the terms and con-
ditions which shall be previously
complied with by any person de-
siring such license, the description
of house and accommodation he
shall have and constantly maintain,
and the security he shall give for
observing all the bye-laws of the
municipality, and the sum he shall
pay for such license over and above
the duty imposed by the Act afore-
said of the Parliament of Great
Britain. For regulating all such
inns and houses of public entertain-
ment, and for imposing for any
contravention of such bye-law any
penalty or punishment which they
may lawfully impose for any con-
travention of other bye-laws. For
similar purposes with respect to ale
and beer houses, and other houses
for the reception and entertainment
of the public where fermented or
other manufactured liquors are
sold and drunk therein. Provided
always, that nothing herein con-
tained shall be construed to relieve
any person keeping a house of public
entertainment and retailing wine and
spirituous liquors therein without a
license, from the penalty imposed for
such oﬁence by the Act of Parlia-
ment of Great Britain aforesaid.”
The Canadian Act, 16 Vict. c.
184., 14 June 1853, entituled “ An
Act to repeal certain duties of excise
so far as regards Upper Canada,
and to vest certain powers in the
municipal authorities of that part
of the province”; gives many of the
old Acts on this subject which may
be valuable to refer to. The pre-
amble is: “IVhereas it is expe-
dient to repeal all provincial Acts
and parts of Acts imposing duties
in Upper Canada on licenses to sell
spirituous liquors in any quantity
or in any place, or to keep houses
of public entertainment, or on
licenses to hawkers and pedlars, or
on keepers of billiard tables, or on
auctioneers, or on the sale of goods
by auction, and generally all duties
commonly called excise duties ex-
cept. only those imposed on dis-
tillers and the spirituous liquors
distilled by them, and all enact-
ments providing for the collection
of such duties, and to vest certain
LIQUOR
TRAFFIC A (vs.
222 B.N.A. ACT, s. 92 (9).--ABSOLUTELY PREVENTING.
LIQUOR
TRAFFIC AcTs.
powers with regard to the matters
aforesaid in the municipal autho-
rities of Upper Canada, be it there-
fore enacted,” &c., that the Act
of the Legislature of Upper Canada,
56 Geo. 3. c. 34., entituled An Act
for granting to His Majesty duties
on licenses to hawkers, pedlars, and
petty chapmen, and other trading
persons therein mentioned; and
the Act of the said legislature,
U. C. 58 Geo. 3. c. 5., an Act to con-
tinue and repeal part of, and amend
the Act 56 Geo. 3. c. 34. ; and the
Act of the said legislature, 9 Geo. 4.
' c. 8., an Act to continue an Act
entituled an Act to continue for
a limited time an Act passed in
58 Geo. 3., an Act to continue and
repeal part of and amend an Act
passed 56 Geo. 3., an Act for grant-
ing to His Majesty duties on licen-
ses to hawkers, pedla-rs and petty
chapmen, and other trading persons
therein mentioned, and to extend the
provisions of the same; and the Act
of the said legislature, 2 Vict. c. 23.,
an Act to continue and make per-
manent an Act passed in 3 Will. 4. ,
an Act to continue the duty upon
licenses to hawkers and pedlars;
and the Act of the said legislature,
50 Geo. 3. c. 6., an Act for grant-
ing to His Majesty a duty upon
billiard tables; and the 8th and 9th
sections of the Act of the said legis-
lature, 3 Vict. c. 9., an Act to re—
gulate the time of making returns
and payment of collectors, &c. ;
and the 10th section of the Act of
the legislature, 3 Vict. c. 20., an
Act for fmther regulating the
manner of granting licenses to inn-
keepers and keepers of ale and beer
houses within this province; and
the Act 58 Geo. 3. c. 6., an Act for
granting to His Majesty a duty on
licenses to auctioneers, and on
goods, wares, and merchandise sold
by auction ; and the Act of 3 Vict.
c. 23., re the same; and the 2nd
section of 3 Vict. c. 22., an Act to
make perpetual 6 Will. 4., an Act
to repeal and amend certain parts of
36 Geo. 3. c. 3., an Act to amend an
Act for regulating the manner of
licensing public houses, and for
more easy conviction of persons
selling spirituous liquors without
license, and also for regulating the
duty to be levied on licenses to
shopkeepers; and the Act of the
province, 13 & 14 Vict. c. 7., an
Act to amend the law relative to
hawkers and pedlars; and so much
of the Act of the province, 4 & 5
Vict. c. 21., an Act to make certain
alterations in the laws relative to
the duty upon sales of property by
auction as imposes or continues any
duty on auctioneers or on goods,
wares or merchandise sold by auc-
tion in Upper Canada;—shall be
repealed, with all other Acts or parts
of Acts, whether of the Parliament
of this province or of the Legislature
of Upper Canada, imposing or con-
tinuing any duty in Upper Canada
on auctioneers or on the sale of
goods and wares or merchandise
by auction, or on hawkers, traders,
or petty chapmen, or on keepers of
billiard tables, or on persons selling
wine, brandy or spirituous liquors,
ale or beer, by retail in any place,
or on keepers of houses of public
entertainment, or requiring that
any person shall take out any license
in order to enable him to lawfully
sell goods, wares, or merchandise by
auction, or to act as a hawker or
pedlar, trader or petty chapman, or
to keep any billiard table for hire or
otherwise, or to sell wine, brandy
or spirituous liquors, ale or beer,
by retail, except only as regards
any penalty already incurred. Pro-
vided that nothing herein contained
shall affect any duty or sum pay-
able under any bye-law of any
municipality in Upper Canada
made under authority of the Act of
Parliament of the province, 13 & 14
Vict. c. 65., or in any way to im-
pair the effect of any bye-law made
under the authority of the said Act,
or to repeal, alter, or aifect any Act
or law concerning distilleries or
distillers, or any duties imposed
upon spirituous liquors distilled or
made by them.
Section 3 enacted that muni-
B.N.A. ACT, s. 92 (9).--ISSUER OF LIcENsEs.
223
cipalities might make bye-laws for
(sub-sec. 1) regulating and govern-
ing auctioneers, &c.; sub-sec. 2,
for regulating and governing all
shopkeepers, storekeepers, and
others selling wine, brandy or
other spirituous liquors, ale or
beer, by retail, in places other than
.houses or places of public enter-
tainment, and for requiring any such
person to take out a license from
any municipal officer to be desig-
nated in such bye-law, before it
shall be lawful for him to sell any
wine, brandy or other spirituous
liquor, ale or beer, as aforesaid,
within the municipality, and for
ﬁxing the sum which shall be pay-
able for each such license, and the
time during which it shall be in
force, and for limiting the number
of persons to whom, and the houses
or places for which such licenses
shall be granted within the muni-
cipality; or for preventing abso-
lutely the sale of wine or brandy
or other spirituous liquors, ale or
beer, or any of them, by retail
within the municipality; and for
making such further enactments
as may be deemed necessary for
giving full effect to any such bye--
law, and for imposing penalties for
the contravention thereof. Pro-
vided always that the selling of any
wine, brandy or other spirituous
liquors, ale or beer, in the original
packages in which the same were
received from the importer or manu-
facturer, and not containing re-
spectively less than ﬁve gallons or
one dozen bottles, shall not be held
to be selling by retail within the
meaning of the Act. Sub-sec. 3
provided for regulating the keeping
billiard tables. Sec. 4 contained
the proviso that no bye-laws
which shall be intended abso-
lutely to prevent the sale of spirit-
uous liquors, 850., within any muni-
cipality, or at any place other than
a house of public entertainment,
or should require payment of a
greater sum than £10 for licenses,
should be valid unless previously ap-
proved by a majority of the quali-
ﬁed municipal electors of the
municipality.
By the Imperial Act 14 Geo. 3.
c. 88., a tax was placed on all
wine, rum, and brandy, imported
into the province of Quebec, to
establish a fund towards defray-
ing ‘the charges of the adminis-
tration of justice and the civil
government of the province; and
by sec. 5 there was to be paid to
His Majesty’s Receiver-General of
the said province a duty of £1 168.
for every license that shall be
granted by the governor, &c., to
any person or persons for keeping
a house or any other place of
public entertainment, or for the re-
tailing wine, brandy, rum, or any
other spirituous liquors within the
said province, and any person keep-
ing any such house or place of en-
tertainment, or retailing any such
liquors without such license, should
forfeit £10. Then we have the
Quebec Act, 35 Geo. 3. c. 8. (1795),
referred‘ to in 13 & 14 Vict.
c. 27. (1850), which was entituled
“An Act for the more eli'ectual
Supression of Intempera-nce.” The
Act of 35 Geo. 3. c. 8. was entituled
“An Act for granting to His Ma-
jesty duties on licenses to hawkers,
pedlars, and petty chapmen, and for
regulating their trade; and for
granting additional duties on li-
censes to persons for keeping
houses of public entertainment ‘or
for retailing wine, brandy, rum, or
other spirituous liquors.” It enacted
that there should be paid by every
person or persons who shall take
outa license for keeping a house or
any other place of public entertain-
ment, or for retailing wine, brandy,
rum, or other spirituous liquors
within this province, in alcss quan-
tity than three gallons at one time,
under the Imperial Act 14 Geo. 3.
c. 88., the sum of £2 over and
above the duty now payable by him,
her, or them for such license under
the said Act of Parliament, and such
additional sum shall be paid before
the delivery of such license. By
sec. 3 a person keeping a house of
LIQUOR
TRAFFIC AcTs.
224:‘
B.N.A. ACT, s. 92 (9).-SALE TO INDIANS.
LIQUOR
TRAFFIC Acrs
public entertainment requiring a
license should be approved of by
two justices, and produce a certiﬁ-
cate from three householders of the
parish, one of which shall be a
churchwarden, certifying the appli-
cant was a proper person.
It may be of value to note
that, on the 29th March 1777,
17 Geo. 3. c. 5., there was pass-
ed under the great seal of the pro-
vince of Quebec an ordinance
prohibiting the selling of strong
liquors to the Indians in the pro-
vince of Quebec. “Whereas many
mischiefs may be occasioned by the
practice of selling rum and other
strong liquors to the Indians, and
of buying their cloths and arms,
and also by trading with the said
Indians, or settling amongst them
without a license, it is ordained
and enacted by His Excellency the
Captain-General and the Governor-
in-Chief of this province, by and
with the advice and consent of the
Legislative Council of the same,
that from and after the publication
of this ordinance, no person or
persons whatsoever shall sell, dis-
tribute, or otherwise dispose of, to
any Indian or Indians within this
province, or to any other person or
persons for their use, any rum or
strong liquors of what kind or
quality soever, or shall knowingly
or willingly suﬁer the same in any
manner to come to the hands of
any Indian or Indians without a
special license in writing for that
purpose, ﬁrst had and obtained
from the Governor, Lieutenant-
Governor, or Commander-in-Chief
of this province for the time being,
or from His Majesty’s agents or
superintendents for Indian affairs,
or from His Majesty’s command-
ants of the diﬁerent forts in this
province, or from such other person
or persons as the Governor, Lieu-
tenant-Governor, or Commander-
in-Chief of the province for the
time being shall authorize for that
purpose.” The penalty for ﬁrst
offence was £5, and imprisonment
not exceeding one month ; for second
offence £10, and imprisonment not
exceeding two months. “ If a per-
son so offending be a publican,
innkeeper, or retailer of strong
liquors, he shall over and above the
said penalty and imprisonment be
rendered incapable, from the day
of his conviction, of selling and
retailing liquors to any person
whatsoever, notwithstanding any
license that he may have had for
that purpose, which license is here-
by declared to be null or void from
the day of his conviction.” See
1 Lois du Bas Canada, 12.
In GARDNER v. PARR, 15 April
1881, 14 N. S. L. R. (2 Russ. and
Gel), 225, Smith, J. z “ Except in
the city of Halifax, there are few,
if any, cities in the provinces where
such liquor licenses are granted.”
(10.) Local works and undertakings other than such
as are of the following classes :—
(a.) Lines of steam or other ships, railways,
canals, telegraphs, and other works
and undertakings connecting the pro-
vince with any other or others of the
province, or extending beyond the
limits of the province.1
1 See Note 1, p. 225.
B.N.A. ACT, s. 92 (10).--PROVINCIAL RAILWAY.
225
(6.) Lines of steam ships between the pro-
vince and any British or foreign
country.
(0.) Such works as, although wholly situate
within the province, are before or after
their execution declared by the Par-
liament of Canada to be for the general
advantage of Canada, or for the advan-
tage of two or more of the provinces.1
1Dow 'v. BLACK. In S. C. N. B.
22 February 1873, 14 S. C.
N. B. (l Pugs), 300. Ritchie,
C.J., Allen and Weldon, JJ.
(Fisher, J., dissenting), held, fol-
lowing Reg. e. Chandler, 1 Han-
nay, 548 (June 11, 1869, S. C.
N. B., Ritchie, C.J.), that the
New Brunswick Act, 33 Vict. c.
47., authorizing the issue of de-
bentures to the Houlton Branch
Railway to aid in the construction
of a railway from Houlton, in the
State of Maine, to the New Bruns-
wick and Canada railway in New
Brunswick, was beyond the powers
of the local legislature under the
B. N. A. Act. This was reversed
by Privy Council [see below].
On the 10th June 1867, before
the B. N.A . Act came into operation,
the then legislature of New Bruns-
wick passed an Act, by sec. 6 of
which it was provided that the sum
of $5,000 per mile, not exceeding
in the whole $17,500, should be
granted for the construction of a
railway to the boundary line of the
State of Maine from the railway
leading from St. Andrews to
Woodstock, to such persons or
body corporate shall construct
the said read, 820. On 17 June
another Act was passed constitu-
ting a body corporate under name
of the Houlton Branch Railway
Company, and they were autho-
rized to make this railway, running
from the intersection of the Wood-
stock line with the New Brunswick
and Canada railway, being a place
S 2340.
called Debeck, to the boundary
line of the State of Maine and
the province of New Bruns-
wick. The preamble to the Act,
33 Vict. c. 47., in question, set
out that the town of Houlton,
State of Maine, had offered the
Houlton Branch Railway Com-
pany a bonus of 3,530,000, upon
condition that the said company
should construct and equip a rail-
way from the town of Houlton to
the line of the New Brunswick
and Canada railway at Debeck
before 1 Jan. 1872. That the
Houlton Branch Railway Com-
pany were willing to undertake the
construction of such connecting
line upon condition that the town
of St. Stephen, in the province of
New Brunswick, should give to the
Houlton Branch Railway a bonus
of $15,000, and that the inhabitants
of that portion of the town of St.
Stephen called the Tower district
were willing to give the said sum,
and that such sum should be raised
upon the credit of the real and
personal property of the inhabi-
tants. The Act of Assembly pro-
vided that the $15,000 should
be raised by the issue of de-
bentures to that amount. Fur-
ther, that the real and personal
property of all persons resident
or non-resident in the lower dis-
trict of St. Stephen should be
assessed in order to raise the inter-
est on such debentures, and the
principal when the latter should
become due, which was in twenty
years. The Act was not to be en-
1?
Dow v. BLACK.
226 B.N.A. ACT, s. 92 (10).—-RULE or CONSTRUCTION.
Dow 2). BLACK.
forced until approved by two-thirds
of the ratepayers liable to be
assessed thereunder, whose assent
was to be certiﬁed by the Gover-
nor in Council, that is the Gover-
nor-General in Council in Canada.
All the formalities of the Act were
complied with. The minority of
the ratepayers dissented from the
arrangement, and this action was
raised.
Allen, J ., who delivered the
judgment of the majority, said:
“ It was contended this Act was
ultra vires of the local legislature,
and therefore void; that, under
B. N. A. Act, sec. 92, sub-sec. 10,
paragraph (a), it was withdrawn
from the class of subjects on which
the provincial legislature might
legislate; and that by force of
sec. 91, which declares the matters
over which the Parliament of
Canada should have exclusive legis-
lative authority, it belonged exclu-
sively to that Parliament. Under
sec. 92, which enumerates the
matters conﬁded to the local legis-
lature, we have by sub-sec. 10
‘local works and undertakings
other than such as are of the fol-
lowing classes.’ Then follow three
paragraphs, (a), (b), (c), of excepted
classes. Paragraph is the only
‘ one that bears on the subject before
us, and it reads thus—[reads it].
Under sec. 91, which speciﬁes
the classes of subjects assigned
exclusively to the Parliament of
Canada, by sub-sec. 29 we have—
[reads it.] It was contended that
the subject-matter of 33 Vict. c. 47 .
came within one of such excep-
tions, and was therefore beyond
the power of the provincial as-
sembly. In the case of Reg. '0.
Chandler, 11 June 1869, 1 Han-
nay, S. C. N. B. 548, this Court
very clearly enunciated the prin-
ciples by which it should be gov-
erned, in determining cases where
local legislation was attempted on
matters expressly withdrawn from
the provincial legislatures and
vested exclusively in the Parlia-
ment of Canada; and in the case of
the European and North American
Railway v. Thomas, Hilary Term,
1872, 14 S. C. N. B. (1 Pugs.) 42,
decided a short time ago, we ex-
amined those portions of the 91st
and 92nd sections by which the
question now under discussion must
be determined. In that case we
decided that where the railway,
the immediate subject of legisla-
tion, was to be constructed clearly
within the limits of the province,
and not connecting the province
with any other or others of the
provinces, and no power was at-
tempted to be given to extend be-
yond into the United States of
America, it was properly the sub-
ject of legislation by the provin-
cial assembly.” “ It is a clear and
well-established rule of construction,
that where the words of an Act of
Parliament are plain and unam-
biguous, and without anything in
the Act to limit or control them,
courts are bound to construe them
in their plain and ordinary sense.
In such a case, we can look to no-
thing but the language of the Act,
giving the words of the statute
their ordinary meaning, to carry
out what the legislature in words
enacts. ‘Ve have cited enough of
the Act to show the subject-matter
legislated upon, and the general in-
tention of the legislature relating
thereto. The other provisions re-
late only to the Act not coming
into operation without the vote and
assent of two-thirds of the rate-
payers of the district, and to the
means by which the object contem-
plated is to be effected. In the
European and North American
Railway 21. Thomas we showed
that the right to legislate relative,
inter alia, to railways and other
works and undertakings connecting
the province with any other or
other of the provinces or extending
beyond the limits of the province
belonged by express terms of the
B.N.A. Act exclusively to the Par-
liament of Canada. If that be so,
how can this 33 Vict. c. 47. be
valid? The railway, with a view to
B.N.A. ACT, S. 92 (Io).-oBJEcTs or eEN. NATURE. 227
the construction of which the Act
was passed, most unquestionably
extends beyond the limits of this
province. It is a connecting line
of railway from the town of
Houlton in the United States of
America to the line of the New
Brunswick and Canada Railway
and Land Company (a railway
constructed within this province
by virtue of divers Acts of the
Provincial Assembly) at or near
Debeck station so called in this
province, for the purpose, as the
Act declares, of meeting the de-
sires of the inhabitants of the
town of St. Stephen in the county
of Charlotte, and to enable them to
have (as stated in the Act) direct
railway communication between
Houlton in the State of Maine,
U.S., and the St. Croix Valley in
the county of Charlotte in this
province. How then can anyone
who reads the Act, escape the con-
clusion that it directly contravenes
the letter and spirit of the B.N.A.
Act in this, that it deals with, and
makes provision for, the construc-
tion and completion of a railway
unquestionably extending beyond
the limits of the province, a subject-
matter expressly and unequivocally
reserved to be dealt with exclusively
by the legislative power of the Par-
liament of Canada? It is diﬁicult
to consider how, if the local legisla-
ture had the power, it could more
efficaciously legislate on the subject
of railways extending beyond the
limits of the province, or secure the
existence or completion of such
undertakings, than by providing
the funds necessary for their con-
struction, and that, too, in a case
like this, where, from the Act, it
would seem that the giving of the
debentures to be issued thereunder
was an express condition on which
the road was to be built, and with-
out which, the fair inference is the
road could not, or would not, be
built.” “ The local legislature,
then, having, in our opinion, ex-
ceeded its authority, the Act in
question is null and void; and, as a
necessary consequence, any assess- DOW v- BLACK-
ment made under it must likewise
be of no legal effect, and must
therefore be quashed.”
Fisher, J ., who dissented, and
with whose decision the Judicial
Committee subsequently agreed
[see below] said: “If the words
‘ or extend beyond the limits of
the province,’ in the ﬁrst para-
graph of the 10th sub-section of
sec. 92 of the B. N. A. Act,
are to be taken in their literal
sense, then in one view of the
question 33 Vict. c. 47. is ultra
wires, as it authorizes the granting
of debentures to aid in building a
railway from Houlton, which is
in the State of Maine, to the
New Brunswick and Canada Rail-
way in this province, unless a fair
construction of the Act may show
a different intention. I have never
been able to satisfy my mind that
this was the true meaning of these
words. Before the union of the
provinces, the legislative powers of
each province were conﬁned to the
limits of the province. It was the
object of the B. N. A. Act to pro-
vide for a Parliament having legis-
lative powers over the whole Do-
minion, which was constituted by
the united provinces, and a legis—
lature for each province. The
powers of legislation were distri-
buted between these different bodies.
Objects of a general or natural
character, such as trade and com-
merce, railway, and works running
over the whole Dominion, were
exclusive subjects of legislation by
the Parliament of Canada; whilst
the power to legislate upon local
matters and the construction of
local works was conferred upon the
different legislatures. Before the
Union, the legislatures of the re-
spective provinces were as incqm-
petent to enact a law extending
beyond their limits as they are now.
The Parliament of Canada has now
no power of legislation beyond this
province into the State of Maine.
It has authority to pass laws upon
various subjects afftwting the whole
P2
228 B.N.A. ACT, s. 92 (10).—WORKS WITHIN DOMINION.
Dow 71 BLACK.
Dominion, and which are in force
in every province. It may incor-
porate a railway company or autho-
rize the construction of a railway
through the whole Dominion, or a
line of telegraph, or other such
public work. Its legislative power
is general, extending over all
Canada. The legislative power of
each province is conﬁned to the
individual provinces. It appears
to be the object of the exception in
the 10th sub-section of sec. 92 so to
limit the power of the local legisla-
tures as to prevent any conﬂict of
the parliaments in this respect;
and whilst the Parliament of Can-
ada can enact laws affecting each
province, each local legislature can-
not legislate beyond the province,
and the exception conﬁning the
power of the local legislature to other
works than those connecting the
province with any other or others
of the provinces, or extending be-
yond the limits of the province,
I think must necessarily mean
works within the Dominion of Can-
ada, because by extending beyond
the limits of the province into some
other of the provinces, the autho-
rity of the Parliament of Canada
could be contravened; whilst the
extension into the State of Maine
would have no such effect, as the
Parliament is as powerless to legis-
late there as the local legislature,
and there would be no object for
such limitation of power. The
next paragraph expressly refers to
foreign countries; and if the ﬁrst
paragraph was intended to include
a foreign country, it would not
have been necessary to make special
provision therefor in the case of a
line of steamships in the second.
By construing the Act in this way,
each paragraph of the clause has a
distinct meaning, indicating the
object of the different paragraphs
and provisions; and if this be not
the construction the second para-
graph is useless, for, if the words
‘ extending beyond the limits of the
province’ in the ﬁrst paragraph
mean a foreign country, it includes,
not only the railways and telegraph
lines, but lines of steamships, and
the latter are the subject of a dis-
tinct enactment in the second para-
graph, which could only have been
inserted to provide for a state of
things not in contemplation of the
ﬁrst. I cannot reconcile these ex-
ceptions with the general object and
purpose of the Act by any other
construction. As the authority
conferred by the 30 Vict. c. 54.,
incorporating the Houlton Branch
Railway Company, to build a rail-
way is conﬁned to a line from the
intersection of the Woodstock line
with the New Brunswick and
Canada Railway to the boundary
of the State of Maine, I will not
presume that the St. Stephen con-
tribution of debentures was appro-
priated to any other object than is
contemplated by the Act of incor-
poration, especially as the town of
Houlton is by the statute, 33 Vict.
c. 47 ., stated to have contributed
towards the construction of this
road. The legislature was clearly
authorized, in my view of the law,
to enable the people of St. Stephen
to contribute towards the construc-
tion of that portion of the line
within the province, and the most
reasonable presumption is that they
did so. If there was anything in
the 30 Vict. c. 54. which would
come within the exclusive powers
of the Parliament, it is saved by the
129th section, B. N. A. Act, and
never having been repealed, altered,
or amended in any way, is still in
force. It also appears to me that
the 33 Vict. c. 47. comes within
the category of powers provided
for in the 16th sub-section of sec.
92, being purely a matter of local
nature. It is difficult to discover
any provision in the exclusive
powers of the Parliament that may
be fairly construed to meet this
case; and it cannot be contended
that the B. N. A. Act is so con-
strued as to prevent localities from
granting aid to attain some local
object, or receive some advantage
purely local. The fair construction
B.N.A. ACT, 92 (lO).——PURPOSE or DOM. TAXATION. 229
in this respect appears to be, that
the authority conferred upon the
Parliament to raise money by any
mode or system of taxation was for
the purposes of the general Gov-
ernment or of the whole Dominion,
to enable the Parliament and
Government to discharge the duties
and obligations cast upon the Do-
minion, and that taxation for local
purposes is conﬁned to the legisla-
ture of each province.
“ Nothing can be more local than
the Act 33 Vict. c. 47., for its
enactments are made contingent
upon a favourable vote of the rate-
payers of the locality desiring the
railway. The whole subject is as
local as can well be conceived.”
“ I have not adverted to the 13th
sub-section of sec. 92, which gives
the local legislatures exclusive
power to legislate upon property
and civil rights, which must com-
prehend a case of the kind under
consideration, because it does not
appear to me to be of the class of
cases referred to in the 10th sub-
section of sec. 92, and it does not
appear to me to come under the
general authority to tax for local
purposes, the local legislatures
having granted aid to objects of a
local nature. For these reasons I
am of opinion the rule should be
discharged.”
Dow 22. Black was considered in
the Privy Council 5 March 1875,
L. R. 6P. C. 272; 44L.J., P. C.
52 ; 32 L. T. 274. [The facts are
given above, and the names of the
judges present ante, Note, p. 67
Sir James Colvile said (L. R. 6 P. C.
p. 280): “The grounds on which
the Supreme Court has pronounced
this Act to be ultra wires of the
local legislature are entirely derived
from sub-sec. 10 (a) of sec. 92 of
the B. N. A. Act. Secs. 91 and 92
purport to make a distribution of
legislative powers between the Par-
liament of Canada and the provin-
cial legislatures, sec. 91 giving a
a general power of legislation to
the Parliament of Canada, subject
only to the exception of such
matters as by sec. 92 were made
the subjects upon which the pro-
vincial legislatures were exclusively
to legislate. The 10th sub-section
of sec. 92 among those enumerated
local works and undertakings
other than such as are of the fol-
lowing classes. Then follow the
exceptions, and the ﬁrst of these is,
lines of steam or other ships, rail-
ways, canals, telegraphs, and other
works and undertakings connecting
the province with any other or
others of the provinces, or extend-
ing beyond the limits of the pro-
vince. A question touching the
construction of this sub-section has
been raised both here and in the
court below. The respondents in-
sist that the line of railways which
are thereby put within the exclusive
jurisdiction of the Parliament of
Canada are all railways which
extend either beyond the limits of
the province into other provinces
within the Dominion or into foreign
countries. On the other hand, the
appellants contend that a more
limited construction is to prevail,
and that if the sub-section be taken
in connection with the following
sub-section (1)), it will be found to
apply only to railways extending
beyond the limits of one province
into another province of the Do-
minion. Their Lordships do not
think it necessary to determine on
the present appeal this question of
construction, or to affirm that if all
the legislation which has taken
place, including that for the incor-
poration of the Houlton Railway
Company, and empowering it to
make a railway to the frontier,
or beyond it, had taken place
after the Imperial statute for 1867
had come into operation, such
legislation would have been within
the powers of the provincial legis-
lature. They do not think it
necessary to determine that ques-
tion, because they are of opinion
that the validity of the Act of
Assembly, 33 Vict. c. 47., does not
depend on the sub-section in ques-
tion. They are of opinion that the
Dow 11. BLACK.
230
B.N.A. ACT, s. 92 (io).-LooAL WANTS.
Dow 22. BLACK.
REG. 2).
CHANDLER.
Act cannot be said to be a law in re-
lation to a local work or undertaking
within the fair and reasonable mean-
ing of these words. The incorpora-
tion of the company with its powers,
and the construction of the railway
up to the frontier, and therefore
so far as any legislative power
within the British dominions could
determine that construction, had
been already authorized by the Acts
passed before the Imperial statute
came into operation. The Act now
in question did not purport to en-
large the powers of the railway
company, nor could it give them
powers to be exercised on the
foreign soil of Maine. Their Lord-
ships consider that if the railway
company had chosen to make an
arrangement with the inhabitants
of Houlton, in the State of Maine,
for the construction of the railway
on the terms of the bonus of
$30,000 which had been offered to
them from Houlton, there would
have been no legal objection to
their carrying out that arrange-
ment. The Act was merely one
which enabled the majority of the
inhabitants of the parish of St.
Stephen to raise by local taxation
a subsidy designed to promote a
work which they considered to
be for the beneﬁt of their town,
and to place the inhabitants in
such a position to bargain and to
act for their common beneﬁt, in
the same manner as a private
person might have thought it for
his beneﬁt to do. In substance
and in principle it does not diﬁer
from a private act authorizing the
trustees or guardian of a minor to
let a warehouse to such a com-
pany. Suppose the work, instead
of being a railway, had been a
canal, and the inhabitants had
been authorized to make a bargain
for the supply of water to the
district, could any doubt have
been entertained on the subject?
Their Lordships are therefore of
opinion no objection to the validity
of the Act is to be found in the
sub-section in question.” [For
end of this judgment see Note, sub-
sec. 3, sec. 91, ante, p. 67.]
The question in REG. 1). CHAND-
LER, 11 June 1869, 12- S. C. N. B.
(1 Hannay) 548, was an application
for a prohibition to restrain one
of the county court judges from
acting under an Act passed by
the local legislature of New Bruns-
wick, 23 March 1868, entituled An
Act in Amendment of c. 124.
title 34 of B. S. of insolvent
conﬁned debtors. The Act pro-
vided for the examination of a
debtor before the county court
judge as to his ability to pay
his debts, and for his discharge
from gaol where his inability is
shown, and where he has made no
fraudulent transfer. Ritchie, C.J.,
delivering judgment, held this an
insolvency law, which the Legis-
lature of New Brunswick had no
power to pass since the B. N. A.
Act, and prohibited the county
court judge from proceeding or
acting under the Acts passed by
the local legislature subsequent
to the coming into operation of
the B. N. A. Act, altering, amend-
ing, or repealing the laws relating
to insolvent conﬁned debtors, but
only so far as they legislate on
the matter of insolvency, the juris-
diction, however, of the county
courts and their respective judges
remaining unimpaired under the
laws of this province relating to
insolvency as existing when the
B. N. A. Act came into force. He
cited in his judgment the various
provincial laws on the subject of
bankruptcy and insolvency.
He also said: “ The fact of this
Act having been conﬁrmed by the
Governor-General was much relied
on as giving it a binding force and
effect, but we fail to see how this
can be. No power is given to the
Governor-General to extend‘ the
authority of the local legislature or
enable it to override the Imperial
statute, which would be the neces-
sary result if the local legislature
could, by assuming the right to
B.N.A. ACT, s. 92 (10).——RAILWAY TO U. S.
231
legislate on a prohibited subject,
have their action legalised or
validity given to their acts by the
simple conﬁrmation of the Gover-
nor-General, thus making the indi-
vidual act of the local legislature
or of the Governor-General, or
their united acts, superior to the
Parliament of Great Britain.” But
see Att.-Gen. of Ontario v. Att.-
Gen. for Dominion, [1894] A. C.
189; 63 L. J. P. C. 59; 70 L. T.
538; in the court below 20 O. A.
R. 489; and ante, p. 78.
EUROPEAN AND NORTH AMERI-
cAN RAILWAY COMPANY’U. THOMAS,
Hilary Term, 1872, 14 S. C. N. B.
(l Pugs.) 42 [Ritchie, C.J., Allen,
Weldon, and Fisher, J J .], was an
action against the defendant as
shareholder in the E. & N. A.
Railway for certain calls. The
plaintiffs were incorporated by the
27 Vict. c. 43., the Object being
to enable them to construct a
railway from the city of St. John
in New Brunswick westward to
the boundary of the United States.
The 30 Vict. c. 6. and 30 Vict.
c. 12. were subsequently passed
in aid of this undertaking. Then
in 1869 the 32 Vict. c. 54.
was passed to remove doubts,
namely, whether the subscribers
for shares were liable for the sums
by them underwritten, by reason
of the whole capital stock not
having been subscribed, and other
questions. It, inter alia, enacted
that the subscribers should be held
liable in the same manner as if the
whole capital had been subscribed.
It was contended that this Act,
32 Vict. c. 54., was ultra vires the
local legislature, and therefore
void—that under the B. N. A.
Act, sec. 92, sub-sec. 10 (a), it was
withdrawn from the class of sub-
jects on which the provincial legis-
latures might legislate, and that by
force of sec. 91 it belonged exclu-
sively to the Parliament of Canada.
Ritchie, C.J., said : “ The 27 Vict.
c. 43., of which the Act under con-
sideration is an amendment, is an
Act to incorporate the E. 85 N. A.
Railway Company for extension
from St. John westward, and au-
thorizes the company so incor-
porated to locate and construct
and ﬁnally complete a railway ‘from
the city of St. John in this pro-
vince westward to the boundary of
the United States.’ Such a rail-
way, if constructed, clearly does
not connect this province with any
other or others of the provinces;
and without stopping to notice the
marked difference of the language
‘ connecting the province with any
other or others of the provinces ’
and ‘ertending beyond the limits
of the province,’ can we say a rail-
way extends beyond the limits of
the province when its location,
construction, and completion is
actually conﬁned within the pro-
vince, and when it is limited in its
extent ‘ to the boundary of the
United States ’ but not authorized
to go one inch beyOncL? But it was
claimed to have been shown, by
evidence outside the Act, that at
the time it was passed, and also at
the time of the passing of the 32
Vict. c. 54., it was contemplated
and intended by the promoters of
the undertaking to connect with a
line of railway to ‘ be built in the
State of Maine, in the United
States, to meet the E. & N. A.
Railway for extension from St.
John westward’ at the boundary of
the United States, and, therefore, it
is contended it was a railway ex-
tending beyond the limits of the
province. But we think we have
no right to look to intentions or
anticipations or doings of parties
outside the provincial legislature,
either in the State of Maine or in
the province of New Brunswick,
and that the intention of the legis-
lature, as expressed in the Act,
alone can control us—that the fact
of the State of Maine authorizing,
or its people intending, to construct,
or actually constructing, a line of
railway in that country cannot in
any way affect the authority of our
own li-tgislature to legislate on, and
EUROPEAN AND
NORTH AMERI-
CAN RAILWAY
CO. v. THOMAS.
232 B.N.AjAc'r, s. 92 (-10).—-PROVINCIAL RAILWAY.
EUROPEAN AND
NORTH AMERI-
cAN RAILWAY
Co. ‘v. THOMAS.
DOBIE v. TEM-
PORALITIES
FUND Down.
deal with, railway undertakings,
provided always such railways do
not connect the province with any
other or others of the province,
nor extend beyond the limits of
the province. This is the simple
question, and all we have to con-
sider in determining on the validity
of the Act.” “ We therefore think
this is a local work and under-
taking other than such as are of
the classes enumerated in para-
graphs (6), to sub-sec. 10
of sec. 92, and in relation to which
the legislature of this province may
exclusively make laws. The 32
Vict. c. 54. being, therefore,in our
opinion, valid, that Act disposes of
the 1, 2, 3, 4, 9, and 10 objections.”
It was argued in Down 'v. T EM-
PoRALrrIEs FUND BOARD, in Que-
bec Q. B. June 19, 1880, and
in P. C. Jan. 21, 1882, 7 App.
Cas. 136; 51 L. J. P. C. ‘26; 46
L. T. l; and see 26 L. C. Jur. p.
170, that the Imperial Parliament
having expressly excluded, by sub-
sec. 10, sec. 92 of the B. N. A. Act,
from the jurisdiction of the local
legislature all “ Lines of steam or
other ships, &c.,” has shown its
intention of conferring on the Par-
liament of Canada powers of legis-
lation in all matters affecting more
than one province, and although
Dorion, C.J., drew a diiferent in-
ference from this section, yet his
judgment was reversed in the
Privy Council, where it was held
that an Act of the Quebec Legisla-
ture, 38 Vict. c. 64., dealing with
the subject of an Act passed by
the old province of Canada in
respect to clergy funds of and in
both Ontario and Quebec, was in-
valid, and that an Act by both
Ontario and Quebec could not do
what the Quebec Act attempted to
do, which could only be done by a
Dominion Act. [See Note, sub-sec.
13, sec. 92.] Cowan 1). Wright,
1876, 23 Grant (O. C. R.) 616, on
the Ontario Act, 38 Vict. c. 75.,
and re Goodhue, 19 Grant, 366.
In BOURGOIN 1:. LA CoMPAeNIE
DU 'lIIEMIN DE FER DE MON-
TREAL, OTTAWA, ET OccIDEN-rAL,
consolidated appeals, in Quebec
Q. B. 14 Dec. 1878, in P. C.
Feb. 26, 1880, 5 App. Cas. 381;
49 L. J. P. C. 62; 42 L. T. 414,
the railway company in that case
had been originally incorporated
under a Quebec Act, 32 Vict. c. 55.
By the Canadian Act, 36 Vict. c.
82., the railway was declared to be
a work for the general advan-
tage of Canada, and sec. 5 that it
should be deemed a railway to be
constructed under the authority of
a special Act of the Parliament of
Canada, in accordance with the
Dominion Railway Act, 1868, and
that Act was made to apply; and it
was provided that no part of the
Quebec Railway Act, 1869, should
apply to the said railway, and that
no part of the Quebec Railway
Act, 1869, should be incorporated.
Then, by a deed, in 187 5 the com-
pany purposed to convey the whole
railway to the Quebec Government,
and by the Quebec Act, 39 Vict.
c. 2., such transfer was conﬁrmed.
The Privy Council held that the
provisions of the Dominion Act,
read with the sub-sec. 10 of sec.
92 of the British North America
Act, 1867, established that the
transaction between the company
and the Government of Quebec
could not be validated by an Act of
the provincial legislature. It was
held, Sir James Colvile giving
judgment [see 5 App. Cas. at p.
404], that “ the transaction between
the company and the Government
of Quebec could not be validated
to all intents and purposes by an Act
of the provincial legislature, but that
an Act of the Parliament of Canada
was essential in order to give it
full force and eﬁect. This propo-
sition was ﬁnally hardly disputed
by the learned counsel for the re-
spondent, but they relied upon the
8th clause of the deed and the 46th
section of the Quebec Act (39
Vict. c. 2.), as showing that re
B.N.A.ACT,s.92(10).-—CROSSING DOM. RAILWAY. 233
course to the Parliament of Canada
for its sanction was within the
contemplation of the parties, and
contended that before that sanction
was obtained the transaction was
valid for some purposes, and gave
certain inchoate rights which were
capable of being assertec.” The
judgment then proceeded, after
distinguishing Great Western
Railway Company v. The Bir-
mingham and Oxford Junction
Railway, 2 Phill. Railway Cases,
597, that in the Canadian case in
question the public and creditors of
the company were no parties to the
transaction, and could not be
affected by it until it was fully
validated by an Act of the Parlia-
ment of Canada, to obtain which no
attempt seems ever to have been
made, therefore the whole transac-
tion, considered as a whole, was of
no force or validity as against the
appellants.
Where a provincial railway is
desirous of crossing a Dominion
railway, it appears, by CREDlT
VALLEY Co. 0. GREAT WESTERN
RAILWAY Co., 1878,25 Grant 507,
that the approval of the Dominion
Privy Council Railway Committee,
and also, if an Ontario railway,
the approval of the Commissioner
of Public Works for Ontario, must
be obtained. And the agreement
of the companies to waive these
conditions was held in that case to
be of no use. Nor will the agree-
ment alone of all the committee
do. There must be both consents.
Proudfoot, V.C., said: “ The
demurrer raises the question
whether, where a provincial rail-
way in Ontario crosses at Dominion
railway, it is necessary to procure
the approval of the Commissioner
of Public Works for Ontario as
well as the approval of the Rail~
way Committee of the Privy Coun-
cil of the Dominion—and also, if
that be so, whether the companies
can waive this provision.”
“.By the Dominion Act of 1872
[3.5 Vict. c. 65. s. 5], the Great
Western Railway works were de—
clared to be for the general advan—
tage of Canada, and subject to see.
130 of c. 66. of C. S. of C., which
prohibited it from availing itself of
crossing powers over other railways
without getting the approval of the
Board of the Railway Commis-
sioners, for whom the Railway
Committee of the Privy Council
was substituted, 1868, 31 Vict.
c. 68. s. 23. By an Act of 1877
(40 Vict. c. 45.) the powers as to
crossings in the Act of 1868 were
extended to railways incorporated
under provincial Acts, in any case
in which it is proposed that they
should cross a railway under the
legislative control of Canada. I
apprehend there can be no question
that this Act of 1877 (40 Vict. c. 45.)
is quite within the competency
of the Dominion Parliament, as
necessary and essential for the
protection of the Dominion rail-
ways within their control: so that
the approval of the Railway Com-
mittee is requisite before such
a crossing can be enforced. By
R. S. O. c. 165. s. 9, sub-sec. 16,
no railway company shall avail
itself of the crossing powers (in
sub-sec. 15) without the approval of
the Commissioner of Public Works;
and by sec. 4 the Act applies to
any railway subject to the legisla-
tive authority of the province. The
Credit Valley Railway Company
was incorporated by Ontario
statute, 34 Vict. c. 38., and is
therefore subject to this provision.
Hence it would seem that where a
provincial railway crosses a Domi-
nion railway, the approval both of
the Railway Committee of the
Privy Council and of the Com—
missioner of Public Works must
ﬁrst be har .” Then his Lordship
said: “It may be said that the
approval of all the Railway Com-
mittee aifords all the protection
requisite for the public safety.
Perhaps it does, but the legislature
have thought it ﬁt to require the
additional protection of the sanc-
tion of another officer.” “Being of
CREDIT VALLEY
Co. 0. GREAT
\VEsTEaN RAIL-
WAY Co.
234
B.N.A. ACT, S. 92 (11).—BUILDING SOCIETIES.
CBEDIT VALLEY
Co. '0. GREAT
WESTERN RAIL-
WAY Co.
Com BUILDING
ANDINVESTMENT
Asso. v. Arr.-
GEN. OF
QUEBEC.
opinion the approval of the Com-
missioner of Public Works cannot
be dispensed with, there is no need
to examine whether the acts of the
companies amount to a waiver.”
(11.) The incorporation of companies with provincial
obj ects.1
1 CoLoNIAL BUILDING AND IN—
vEsTMENT ASSOCIATION v. Arr.-
GEN. OF QUEBEC, in Quebec Q. B.
24 March 1882, 27 L. C. J. 295
[886, for judges, p. 240] ; in P. C.
Dec. 1, 1883; 9 App. Cas. 157;
53 L. J. P. C. 27; 49 L. T. 789,
decided that the Dominion can in-
corporate a company to carry on
its operations throughout the Do-
minion, but the capacity to so
carry on its business only enables it
to do so consistently with the law
of the province in which it is
operating. But a clear case must
be shown that it has acted illegally.
See Chaudiere Gold Mining Co. "a.
Desbarats (an American incorpor-
ated company), in Q. B. Quebec, 10
Dee. 1870, 15 L. C. J. 44; in P. C.
July 29, 1873, L. R. 5 P. C.
p. 296; 42 L. J. P. C. 73, putting
little weight on Kierzkowski '0.
Grand Junction Railway Co., Nov.
23, 1857, 4 L. C. J. 86; 8 L. C.
R. 3. The worth of the opinions
in that case being topped by the
greater authority of the Code [ar-
ticle 364].
At the hearing of the COLONIAL
BUILDING AND INVESTMENT Asso-
CIATION c. AT'L—GEN. or QUEBEC,
there were present Lord Fitzgerald,
Sir Barnes Peacock, Sir Montague
E. Smith, Sir Robert Collier, Sir
R. Couch, and Sir A. Hobhouse.
Sir Montague E. Smith, in de-
livering judgment, said: “This is
an appeal from a judgment of the
Court of Queen’s Bench _ of the
province of Quebec reversing a
judgment of the Superior Court,
which dismissed the petition of the
Att.-Gen. of the province praying
that it be declared that the appel-
lant company had been illegally in-
corporated, and that it be ordered
to ‘be dissolved and prohibited from
acting as a corporation. The judg-
ment now appealed from did not
grant the prayer of the petition,
but gave other relief in the manner
hereafter to be adverted to. The
Colonial Building and Investment
Association was incorporated by an
Act of Parliament of Canada, 37
Vict. c. 103. The preamble states
‘ That the persons therein named,
owners of real estate in the city
and district of Montreal and else-
where in the Dominion, have peti-
tioned for an Act of incorporation
to establish an association to be
called the Colonial Building and
Investment Association, whereby
powers may be conferred on the
said association for the purpose of
buying, leasing, or selling land,
property, and appurtenances there-
of; for the purchase of building
materials, to construct an improved
class of villas, homestcads, cottages,
and other buildings and premises,
and to sell or let the same; and
for the purpose of establishing a
building or subscription fund to
which persons may subscribe or pay
in moneyforinvestmentorforbuild-
ing purposes, and from which pay-
ments may be made for said pur-
pose, and also to act as an agency.’
Sec. 1 incorporates the society.
Sec. 4 enacts that the association
shall- have power to acquire and
hold by purchase, lease, or other
legal title, any real estate necessary
for the carrying out of its under-
taking; to construct and maintain
houses or other buildings; to let,
sell, convey, and dispose of the
said property; to acquire and use
or dispose of every description of
materials for building purposes ; to
lend money on security, by mort-
B.N.A. A015. 92 (11).-~QUEBEG LAWS.
235
gage on real estate, or on Do-
minion or provincial government
securities, or on the stocks of
chartered banks in the Dominion;
and to acquire, hold, and dispose
of public securities, stocks, bonds,
or debentures of any corporate
bodies, and other deﬁned securities.
The clause provides that the asso-
ciation shall sell the property so
acquired within ﬁve years from the
date of the purchase thereof. Sec.
5 enables the association to act as
an agency and trust company.
See. 11 provides that the chief
ofﬁce of the association shall be
in the city of Montreal, and that
branch oﬁices or agencies may be
established in London, England,
in New York, in the United
States of America, and in any city
or town in the Dominion of Can-
ada, for such purposes as the
directors may determine, in accor-
dance with the Act; and that
bonds, coupons, dividends, or other
payments of the association may be
made payable at any of the said
ofﬁces or agencies. The secretary
of the association, the only witness
called in support of the petition,
proved that the association had
bought lands, erected houses on
such lands, and sold them, and
had also built houses on the lands
of others, and lent money on real
estate. He stated that these opera-
tions had hitherto been conﬁned to
the province of Quebec, though
efforts had been made to extend
the business of the company to
other provinces, and to establish
agencies in Glasgow and New
York, which had failed in conse-
quence of the inability of the
association to raise sufficient capi-
tal. In order to understand the
question which ultimately became
the principal one to be considered
in this appeal, namely, whether
the judgment of the Court of
Queen’s Bench is properly founded
upon the Att.-Gen.’s petition, it is
necessary to refer to the Code of
Civil Procedure of Lower Canada,
on which the proceedings are
based, the scope and prayer of the
petition, and the nature and form
of the judgment appealed from.
The heading of c. 10. s. 1 of
the code is, ‘ Of corporations il-
legally formed, or violating or ex-
ceeding their powers.’ Art. 997
is as follows:—-‘ In the follow-
ing cases: (1) Whenever any as-
sociation or number of persons
acts as a corporation without being
legally incorporated or recognised;
(2) Whenever any corporation,
public body, or board violates any
of the provisions of the Acts by
which it is governed, or becomes
liable to a forfeiture of its rights,
or does, or omits to do, acts
the doing or omission of which
amounts to a surrender of its cor-
porate rights, privileges, and fran-
chises, or exercises any power,
franchise, or privilege which does
not belong to it, or is not conferred
upon it by law :——it is the duty of
Her Majesty’s Att.-Gen. for Lower
Canada to prosecute, in Her Majes-
ty’s name, such violations of the
law whenever he has good reason
to believe that such facts can be
established by proof in every case
of public general interest; but he
is not bound to do so in any other
case unless sufﬁcient security is
given to indemnify the Govern-
ment against all costs to be in-
curred upon such proceeding. And
in such case the special informa-
tion must mention the names of the
person who has solicited the Att.-
Gen. to take such legal proceed-
ings and of the person who has
become security for costs.’ [0. S.
L. C. c. 88. s. 9; 41 Vict. (Q.),
1878, c. 13. s. 1.]
Art. 998, as amended, reads: ‘The
summons for that purpose must be
preceded by the presenting to the
superior court, or to a judge, of a
special information containing con-
clusions adapted to the nature of
the contravention, and supported
by an affidavit to the satisfaction of
the court or judge, and the writ of
summons cannot issue upon such
information without the authoriza-
COL. BUILDING
AND INVESTMENT
Asso. v. Arr.-
GEN. or
QUEBEC.
236 B.N.A. Ac'r, 92 (11)._DoMINIoN coMeANIEs.
00L. BUILDING
AND INvEs'rnEN'r
Asso. v. Arr.-
GEN. or
QUEBEC.
tion of the court or judge.’ [See
35 Vict. c. 6. s. 21.] The
material allegations of the petition
ﬁled by the Att.-Gen. are the
following: ‘T hat the Colonial
Building and Investment Associa-
tion for years past have been, and
still are, acting as a corporation in
the city of Montreal, and else-
where in the province of Quebec,
exclusively and as such, ever since
the date of its existence herein-
after mentioned, have been buying,
leasing, and selling landed pro-
perty, buildings and appurtenances
thereto, constructing villas, home-
steads, cottages, and other build-
ings, and selling and letting the
same, and have already been lend-
ing money on security by mort-
gage or hypothec on real estate in
this province, the whole without
being legally incorporated or recog-
nised.’ ‘That the operations and
business of the said association
have been limited to the province
of Quebec, and being, moreover, of
a merely local or private nature in
the said province, and having pro-
vincial objects affecting property
and civil rights in the said pro-
vince, the said association could
not lawfully be incorporated ex-
cept by or with the authority
of the legislature of the pro-
vince of Quebec.’ ‘That the
said association was incorporated
by the Parliament of Canada in
the year 1874, 37 Vict. c. 103.,
and has ever since been in opera-
tion under the said Act of incor-
poration, which, for’ reasons above
alleged, is null and void and of no
effect, the said Act of incorporation
being ultra wires. Wherefore your
petitioner prays that a writ of
summons upon the aﬂidavit hereto
annexed be ordered to issue in
due course of law, and that the
said defendants be adjudged and
declared to have been and to be
illegally formed and incorporated,
and that the said illegal association
may be ordered to be dissolved
and be declared dissolved, and,
ﬁnally, that the defendants be
prohibited from acting in future
as such corporation, the whole
with costs, distraits to the under-
signed attorneys.’ The petition
was veriﬁed by aﬁidavit as required
by the code, and thereupon an
order for a writ of summons
against the company was issued
by a judge. The petition also
alleges it was presented at the
solicitation of John Fletcher, a
shareholder of the company, who
had become security for costs. It
appears that Fletcher was in de-
fault in payment of his calls, but
in the view their Lordships take of
the case, further reference to this
relator becomes immaterial. The
broad objection taken by the Att.-
Gen. in the petition is that the
association was not legally incor-
porated, the statute incorporating
it being ultra ‘vires of the Par-
liament of the Dominion. The
judgment of the Superior Court,
given by Caron, J ., distinctly over-
ruled this objection. Tessier, J.,
is the only judge of the Court of
Queen’s Bench who affirmed it.
Dorion, C.J., in a judgment which
received the concurrence of two
other judges, acknowledged that,
having regard to the observations
of this board in the case of The
Citizens’ Insurance Co. '0. Parsons
[see sub-sec. 13, sec. 92], it could
not be held that the incorporation
of the association was beyond the
powers of the Dominion Parlia-
ment, and illegal ; and the majority
of the court gave judgment upon
the assumption, as their Lordships
understand the reasons of the
judges, that the association was
lawfully incorporated. The con-
clusion of the formal judgment of
the court is as follows :—‘ That the
said company, respondents, had and
have no right to act as a corpora-
tion for or in respect of any of the
said operations of buying, leasing, or
selling of landed property, build-
ings, and appurtenances thereof,
or the purchase of building mate-
rials to construct villas, homesteads,
cottages, or other buildings and
B.N.A. Aer, S. 92 (11).—LAND COMPANIES, QUEBEe. 237
premises, or the selling or letting
of the same, or the establishment
of a building or subscription fund
for investment or building pur-
poses, or the acting as agents in
connection with such operations as
the aforesaid or any like aifairs, or
any matter of property and civil
rights, or any objects of a purely
local or provincial nature, in any
manner or way within the said pro-
vince of Quebec, and doth prohibit
the said company, respondents, from
acting as a corporation within the
said province of Quebec for any of
the ends or purposes aforesaid.’
Monk, J ., in a short but clear
judgment, dissented from his col-
leagues, and agreed with Mr. Jus-
tice Caron’s judgment. Their
Lordships cannot doubt that the
majority of the court was right in
refusing to hold that the associa-
tion was not lawfully incorporated.
Although the observations of this
board in The Citizens’ Insurance
Co. r. Parsons referred to by the
Chief Justice, put a hypothetical
case by way of illustration only,
and cannot be regarded as a de-
cision on the case there supposed,
their Lordships adhere to the view
then entertained by them as to the
respective powers of the Dominion
and provincial legislatures in regard
to the incorporation of companies.
It is asserted in the petition, and
was argued in the courts below and
at this bar, that inasmuch as the
association had conﬁned its opera-
tions to the province of Quebec,
and its business had been of a
local and private nature, it followed
that its objects were local and pro-
vincial, and consequently that its
incorporation belonged exclusively
to the provincial legislature. But
surely the fact that the association
has hitherto thought ﬁt to conﬁne
the exercise of its powers to one
province cannot affect its status
or capacity as a corporation, if the
Act incorporating the association
was originally within the legislative
power of the Dominion Parliament.
The company was incorporated
with the powers to carry on its busi~
ness, consisting of various kinds,
throughout the Dominion. The
Parliament of Canada could alone
constitute a corporation with these
powers; and the fact that the exer-
cise of them has not been co-exten-
sive with the grant cannot operate
to repeal the Act of incorporation, nor
warrant the judgment prayed for,
namely, that the company be de-
clared to be illegally constituted.
It. is unnecessary to consider what
remedy, if any, could be resorted
to if the incorporation had been
CoL. BUILDING
AND INVESTMENT
Asso. '0. Arr.-
GEN. or
QUEBEC.
obtained from Parliament with a .
fraudulent object, for the only
evidence given in the case discloses
no ground for suggesting fraud in
obtaining the Act. Their Lord-
ships therefore think that the courts
in Canada were right in holding
that it was not competent to them
to declare, in accordance with the
prayer of the petition, that the as-
sociation was illegally incorporated,
and ought to be dissolved.
“ There remains the question
which was mainly argued at the
bar, whether the judgment of the
Court of Q. B., which, shortly
stated, declares that the association
has no right to act as a corporation
in respect of its most important
operations within the province of
Quebec, and prohibiting it from so
acting within the province, can be
sustained. It was not disputed by
the counsel for the Attorney-
General that, on the assumption
that the corporation was duly con-
stituted, the prohibition was too
wide, and embraced some matters
which might be lawfully done in
the province, but it was urged
that the operations of the company
contravened the provincial law at
the least in two respects, namely,
in the dealing in land, and in
acting in contravention of the
Building Acts of the province. It
may be granted that by the law of
Quebec corporations cannot acquire
or hold lands without the consent
of the Crown. This law was recog-
nised by this Board and held to
238
B.N.A. ACT, s. 92 (11).-MORTMAIN ACTS.
00L. BUILDING apply in thecase of the Ohaudiere
AND INVESTMENT Gold Mining Co. v. Desbarats.
Asso. 'v. ATT.-
GEN. or
QUEBEC.
[In Quebec Q. B. 10 Dec. 1870,
15 L. C. J. 44; in P. C. July 29,
1873, L. R. 5 P. C. 277; 42 L. J.
P. C. 73; 29 L. T. 377; see
below]
“ It may also be assumed, for the
purpose of this appeal, that the
power to repeal or modify this law
falls within sub-sec. 13 of sec. 92
of the B. N. A. Act, namely, ‘ Pro-
perty and civil rights within the
provinces,’ and belongs exclusively
to the provincial legislature; so that
the Dominion Government could
not confer powers on the company
to override it. But the powers
found in the Act of incorporation
are not necessarily inconsistent with
the provincial law of mortmain,
which does not absolutely prohibit
corporations from acquiring or
holding lands, but only requires as
a condition of their doing so that
they should have the consent of
the Crown. If that consent be
obtained, a corporation does not in-
fringe the provincial law of mort-
main by acquiring and holding
lands. What the Act of incorpo-
ration has done is to create a legal
and artiﬁcial person with a capacity
to carry on certain kinds of busi-
ness, which are deﬁned within a
deﬁned area, namely, through the
Dominion. Among other things,
it has given to the association
power to deal in land and build-
ings, but the capacity so given only
enables it to acquire and hold land
in any province consistently with
the laws of the province relating to
the acquisition and tenure of land.
If the company can so acquire and
hold it, the Act of incorporation
gives it capacity to do so. It is
said, however, that the company
has, in fact, violated the law of the
province by acquiring and holding
land without having obtained the
consent of the Crown. It may be
so, but this is not the case made by
the petition. Proceedings founded
on the alleged violation by a corpo-
ration of the mortmain laws would
involve an inquiry opening ques-
tions (some of which were touched
upon in the arguments at the bar)
regarding the scope and eﬁect of
these laws, the fact of the Crown’s
consent, the nature and suﬁiciency
of the evidence of it, the conse-
quence of a violation of the laws,
and the proper parties to take
advantage of it; questions which
are certainly not raised by the
allegations and conclusions of this
petition. So with respect to the ob-
jections founded on the Acts of the
province with regard to building
societies. Dorion, C.J., appears to
be of opinion that, inasmuch as the
legislature of the province had
passed Acts relating to such so-
cieties, and deﬁned and limited
their operations, the Dominion Par-
liament was incompetent to incor-
porate the present association,
having for one of its objects the
creation of buildings throughout
the Dominion. Their Lordships, at
present, fail to see how the existence
of these provincial Acts, if compe-
tent-1y passed for local objects, can
interfere with the power of the
Dominion Parliament to incorpo-
rate the association in question. If
the association by its operations
has really infringed the provincial
Building Societies Acts, a proper
remedy may doubtless be found,
adapted to such a violation of the
provincial law; but, as their Lord-
ships have just observed with
reference to the supposed contra-
vention of the Mortmain Acts, that
is not the case made by the petition.
It now becomes material to examine
more closely than has hitherto been
done the allegations and conclusions
the petition really contains. The
ﬁrst paragraph, after stating that
the corporation carried on its opera-
tions in Quebec exclusively, con-
cludes thus: ‘The whole without
being legally incorporated or recog-
nised.’ The second paragraph avers
that the operations of the company
being conﬁned to Quebec, and
being of a merely local nature,
affecting property and civil rights
B.N.A. AoT, S. 92 (11)._DIoTA IN PARSONS. 239
in the province, ‘ could not lawfully it being set up on these proceedings. COL- BUILDING
be incoporated except by the au-
thority of the legislature of the
province.’ The third paragraph
alleges that for these reasons ‘the
Act of incorporation is null and
void,’ the said Act of incorporation
being ultra vires. The conclusion
and prayer based on these allega-
tions are, ‘ That the association be
declared to be illegally incorporated,
be declared dissolved, and pro-
hibited from acting in the future
as a corporation.’ It seems to their
Lordships it would be a violation
not only of the ordinary rules of
procedure but of fair trial to decide
this appeal upon a new case, which,
assuming a lawful corporation, rests
upon the supposed infringement of
the laws of the province by the
company in conducting its opera-
tions. This is not the wrong
struck at by the petition, but a
wrongdoing raising issues of a
wholly diﬁerent character to those
to which the allegations and conclu-
sions of the petition are alone
directed and adapted. It is to be
observed that the inquiries made
by the company’s secretary were of
a general nature, and mainly di-
rected to support the allegation in
the petition that the companfs
Operations had been limited to .the
province of Quebec. NO investi-
gation of the title to any of the
lands it held, nor of any particular
transactions, was gone into at the
hearing. The 998th article of the
Code of Civil Procedure requires
that the summons to be issued
‘ must’ be preceded by a petition to
the court containing ‘conclusions
adapted to the nature of the con-
travention,’ to be supported by an
affidavit; and provides that the
summons cannot be issued on such
information without the authority
of a judge. It is quite plain that
the conclusions of this petition are
not adapted to the case now relied
on by the Attorney-General; so
that neither the general principle
regulating procedure nor the special
requirements of the code allow of
If the company is really holding 4ND INVEST-KENT
property in Quebec Without having
complied with the law of that pro- QUEBEQ
vince, or is otherwise violating the
provincial law, there may be found
proceedings applicable to such vio-
lations; though it is not for their
Lordships to anticipate them, or to
indicate their form. It should be
observed that their Lordships, in
the case supposed in their judgment
in the appeal of the Citizens’
Insurance Co. v. Parsons in regard
to corporations created by the Do-
minion Parliament with power to
hold lands being subject to the law
of mortmain existing in any pro-
vince in which they sought to ac-
quire it, had not in view the special
law of any one province, nor the
question whether the prohibition
was absolute, or only in the absence
of the Crown’s consent. The object
was merely to point out that a cor-
poration could only exercise its
powers subject to the law of the
province, whatever it might be, in
this respect. It was argued that
the judgment of the Court of Q. B.
might be sustained by the part of
the prayer which asks that the
company ‘ be prohibited from acting
in future as a corporation within
the province of Quebec’ for certain
purposes. But the prohibition is
asked as consequential upon the
declarations prayed for, and when
these are refused there are not only
no declarations but no allegations
in the petition to sustain it. It
has been seen that the prohibition
contained in the judgment in the
Court of Q. B. is not an injunction
limited to restraining the company
from doing speciﬁed acts in violation
of particular laws of the province,
but is a general prohibition founded
on a declaration introduced by the
court, other than those prayed for,
that the company has no right to
act as a corporation in dealing with
lands and buildings, and certain
other matters within the province.
This declaration, with the prohi-
bition founded on it, is obviously
2440
B.N.A. ACT, 92 (11).-BOTH ALTERING ACT.
CoL. BUILDING
AND INVESTMENT
Asso. v. Arr.-
GEN. OF
QUEBEC.
too extensive. A prohibition in
these wide and sweeping terms
would prohibit the company from
acquiring or dealing in lands,
though it had the Crown’s consent,
and could only be warranted by
affirming the invalidity of the Act
of incorporation, which would be
opposed to what has been stated in
the previous part of this judgment
to be their Lordships’ view; or
at least by affirming that the
company, in exercising its powers
in the province, must necessarily
violate the provincial law, which,
as aheady shown, is not a necessary
consequence. In the result their
Lordships will humbly advise Her
Majesty to reverse the judgment
under appeal, and to order that the
judgment of the superior court be
aflirmed, and that the present
appellants’ costs of the appeal to
the Court of Q. B. in Canada be
paid by the present respondent.
The appellants must also have the
costs of the appeal to Her
Majesty.”
In the judgment in Q. B. Quebec
in this case, 27 L. J. C. 295, in
which Dorion, C.J., Tessier, Cross,
and Baby, JJ. [Monk, J., dis~
senting], took part, Sir A. Dorion,
C.J., said: “Before the B. N.
A. Act was passed the organi-
zation of building societies was
considered as so intimately con-
nected with the different systems of
laws in force in each of the two
provinces of Upper and Lower
Canada, that although under the
union which then existed all the
laws affecting them were enacted
by one and the same legislative
body, it was found necessary to
have on this subject a separate
legislation for each province. The
dispositions applicable to Lower
Canada were contained in the
L. C. C. S. c. 69., and those
applicable to Upper Canada in the
U. C. C. S. c. 53. Sincethe union
of the provinces under the B. N.
A. Act, the c. 69. of the L. C.
C. S. has been twice amended and
partly repealed by the legislature
of the province of Quebec, ﬁrst in
187 5 by the 39 Vict. c. 61, and sec-
ondly in 1878 by the 41 Vict. c. 20.
In 187 8 the Parliament of Canada,
by the 40 Vict. c. 50., also amended
and partly repealed the same 0. 69.
of the L. C. C. S., and in 1879
both the Parliament of Canada and
the legislature of the province of
Quebec, the ﬁrst by the 42 Vict. e. 48.
and the second by the 43 Vict. c. 32.,
made provision for the voluntary
liquidation of building societies in
the province of Quebec. Chapter
69 of the C. S. of L. C. has there-
fore been considered by the Parlia-
ment of Canada as being a Domi-
nion law, and has been twice dealt
with as such, while it has been three
times amended by the legislature of
Quebec as a provincial law. The
provincial legislatures have the
same exclusive right, under sec. 92
of the B. N. A. Act, to pass laws
relating to the subjects therein
mentioned as the Parliament of
Canada has, under sec. 91, to pass
laws on subjects not expressly
assigned to the former. It seems,
therefore, impossible that both legis-
lative bodies should have had the
right to amend and repeal, in whole
or in part, the provisions of c. 69.
of C. S. L. C. The question was
submitted to us in the case of
McClanagan and the St. Ann’s
Mutual Building Society, 24 L.C.J.
162, and we there decided, on the
authority of L’Union St. Jacques r.
Belisle, 20 L. C. J. 29 [see Notes,
sec. 91 and sec. 92, sub—sec. 21],
that c. 69. of the C. S. of L. C.,
having a provincial object and
affecting civil rights, came within
the exclusive jurisdiction of the
provincial legislature under sub-
secs. 10, 11, 13, 16, of sec. 92 of the
B. N. A. Act, and that the Act,
42 Vict. c. 48., passed by the Par-
liament of Canada to provide for
the liquidation of building societies
in the province of Canada, was
ultra uz'res. We, at the same time,
maintained the Act of the Quebec
Legislature, 43 Vict. c. 32., which
had the same object as the Domi-
B.N.A. AcT, s. 92 (11)._1NcoNvENIENcE OF DOM. AcT. 241
nion Act. We thereby held that
the provincial legislatures had ex-
clusive control over the Acts
authorizing the establishment of
building societies in the province of
Quebec. It is, however, argued
that the company respondent is not
incorporated for the purpose of
doing business in the province of
Quebec only, but in all the pro-
vinces of the Dominion, and that
as none of the provinces could pass
such an Act, the authority to do
so vested in the Dominion Parlia-
ment, the subject not coming
within any of the classes of sub-
jects assigned exclusively to the
provincial legislatures by sec. 92
of the Imperial Act. In the case
of the Queen 22. Mohr, 8 June
1881, 7 L. R. 183, this Court
held that a company incorporated
by an Act of Parliament of Canada,
43 Vict. c. 67., to establish tele-
phone lines in the several provinces
of the Dominion had no right to
establish an independent line of
telephones wholly within the pro-
vince of Quebec, and not connect-
ing this province with any other of
the provinces, or not being extend-
‘ed beyond the limits of the pro-
vince, as such independent tele-
phone line did not come within any
of the exceptions contemplated in
paragraphs (a), (b), of sub-sec. 10
of sec. 92 of the B. N. A. Act. Our
judgment in that case was based on
an express provision of the Act
applying to lines of steamships,
railways, telegraphs, and other
similar undertakings. Building
societies are not expressly men-
tioned in that sub-section, and
their object is not of the same
character as the works and under-
takings to which it refers. Al-
though it is difficult to understand
why a different rule should prevail,
yet it cannot be said that building
societies come within the express
provision of sub-sec. 10, and that
decision is not therefore incon-
sistent with the opinion express-
ed by the Judicial Committee
of the Privy Council in the case
S 2340.
of the Citizens’ Insurance Co. 1).
Parsons [see sub-see. l3, and ex_
plained ante, p. 239], 7 App. Cas. 96.
Con. BUILDING
AND INVESTMENT
Asso. v. Arr.-
GEN. or
In that case, their Lordships, in QUEBEC,
their observations on the judgment
of Taschereau, J., of the Supreme
Court, expressed themselves to the
effect that the power to incorporate
an insurance company to carry on
business in one of the provinces of
the Dominion, lay with the legisla-
ture of that province; while the
incorporation of companies to
carry on business throughout the
whole Dominion or in more pro-
vinces than one, was vested in the
Parliament of Canada, as not
coming within the classes of sub-
jects, exclusively assigned to the
provincial legislatures. Although
the question alluded to was not
specially raised in 'the case of the
Citizens’ Insurance Co. v. Parsons,
yet the opinions expressed were so
directly to the point, that we do not
feel it would be competent for us
to consider the question as being
now an open one. We do not,
however, consider that the opinion
so expressed covers the present case.
Here we have a company incorpo-
rated to carry on its operations
throughout the whole Dominion,
which assumes to do business in
one province only, that is, in the
province of Quebec. The exclu-
sive right of the legislature of that
province to regulate the establish-
ment of building societies within
its own limits, would be destroyed
if the Parliament of Canada could,
by granting general powers, autho-
rize a company to act within one
province only. The inconvenience
resulting from the exercise of such
a power is well exempliﬁed in the
present case. If the company, re—
spondent, had been incorporated
under the Acts in force in the pro-
vince of Quebec relating to building
societies, it would only have ob-
tained the limited powers conferred
upon such societies by c. 69. of the
C. S. of L. C. and its amend-
ments, but by going to the Parlia-
ment of Canada for a special Act of
Q
242 B.N.A. ACT, 8. 92 (11).-—DOM. AND oNE PROVINCE.
COL. BUILDING incorporation, it has obtained powers
AND INVESTMENT of a much more extended charac-
Asso. v. ATT.-
GEN. or
QUEBEC.
ter, and such as are not confer-
red on other building societies in
the province of Quebec. As the
Dominion Parliament could not
directy incorporate a building so-
ciety to do business exclusively
in the province of Quebec, it would
seem that a company incorporated
to do business throughout the whole
Dominion cannot restrict its busi-
ness to one province only, without
infringing on the exclusive right of
the legislature of such province to
grant the authority necessary for
that purpose. We now come to the
second (.plestion, relating to the
power granted to the company, re-
spondent, to acquire and hold land
to an unlimited extent within the
province of Quebec. In the case
of the Chaudiere Gold Mining Co.
v. Desbarats, L. R. 5 P. C. 277 [see
below], it was held by the Judicial
Committee of the Privy Council,
conﬁrming the judgment both of the
superior court and this court, that
a corporation, whether foreign or
domestic, is incapacitated from ac-
quiring, as well as from holding,
lands in Lower Canada without the
permission of the Crown ﬁrst ob-
tained. This restriction relates to
property and civil rights, arts. 366
and 836 Civil Code of Lower Can-
ada, and as such can only be re-
moved by the legislature of the
province of Quebec. The Parlia-
ment of Canada, although it may
have the power to incorporate com-
panies to do business throughout
the whole Dominion, has no right
to alter or repeal the general speci-
ﬁc laws of the several provinces
affecting the tenure of lands, or
the right to acquire and hold lands
therein. This question was for-
mally decided in the case of Citizen
Insurance Co. 1). Parsons, 7 App.
Cas. 96, at p. 1 17 [see below, and sub-
sec. 13], and apart from the general
rule there laid down, we ﬁnd in the
exhaustive judgment of their Lord-
ships the following passage. [Reads
passage commencing ‘But it by
no means follows,’ down to ‘though
the corporation would still exist
and preserve its status as a corporate
body,’ post, p. 267.]
“ The supposed ease commented on
by their Lordships is exactly the one
we have to deal with. The Civil
Code, in the articles already cited,
prohibits the acquisition of im-
movable property by corporations
without the previous permission of
the Crown, and e. 69. C. S. L. C.
sees. 13, 23, has especially guar-
ded against the accumulation of
landed estates, in the hands of
building societies, by providing
that they could only hold real
estate as security for loans made
by such societies, or for moneys
due for the payment of stock; the
only power to hold real estate
absolutely being limited to an
amount of $6,000. Yet the Do-
minion Parliament, in contraven-
tion to both general laws of the
province and the special laws
enacted in reference to building
societies, has incorporated the com-
pany, respondent, for the very pur-
pose, as stated in the preamble of
the Act, of buying, leasing, and
selling landed property, buildings
and appurtenances, 37 Vict. c. 103.
sec. 4, and it is in evidence that,
acting under this Act, the respon-
dent company has already acquired
large tracts of land in the city
of Montreal, and its immediate
vicinity. Whatever, therefore, may
be the ultimate decision as to the
right of a company to do business
in one province only when the
company is incorporated by the
Parliament of Canada to do busi-
ness throughout the Whole Do-
minion, it is clear, from the opinion
expressed by the Judicial Commit-
tee of the Privy Council [see this
opinion, p. 267],that the company,
respondent, had no power to deal
in the purchase, lease, and sale of
real estate, &c., in the province of
Quebec. We, therefore, consider
the judgment of the Superior Court
to have been erroneous, and, acting
on the suggestion contained in the
B.N.A. AoT, S. 92 (11).—PROV. AND LAND COMPANIES. 243
above extract from the judgment
in Citizens’ Insurance Co. v. Par-
sons, without deciding that the
whole Act incorporating the com-
pany respondent is ultra vires,
we hold that the company has no
right to exercise in the province of
Quebec the powers conferred by
its Act of incorporation, to buy,
lease, and sell lands, &c., in the
province of Quebec, and it is by
our judgment forbidden to do so.”
MOCLANAGAN v. ST. ANN’s MU-
TUAL BUILDING SOCIETY, 24 L. C.
J. 162, was a case in which Mc-
Clanagan, 26 Aug. 1879, applied
for an injunction against the defen-
ders, a building society incorpora-
ted under C. S. L. C. c. 69., going
into liquidation under the pro-
visions of the Dominion Act, 42
Vict. c. 8. While the proceedings
were pending, the Quebec Legisla-
ture passed a statute, the 43 Vict.
c. 32., re-enacting as to the pro-
vince, all the provisions of the Do-
minion Act, and it also passed the 43
Vict. c. 33., ratifying all proceedings
adopted under the provisions of the
Dominion Act. The last Act was
not to aﬁect pending cases. These
Acts were ratiﬁed 31 Oct. 1879.
On 1 Dec. 1879, the Sup. Ct.
[T Orrance, J held the Dominion
Act not ultra vires, and refused the
injunction. On 4 Feb. 1880, the
Q. B. Quebec, 24 L. C. J. 162 [Sir
A. Dorion, C.J., Monk, Ramsay,
and Cross, J J .], held the Dominion
Act ultra vires ; but as the defen-
ders’ proceedings had been ren-
dered valid by the Quebec Legisla-
ture, there was now no ground,
when the judgment below was
given, or this appeal instituted, on
which to restrain the society from
proceeding to liquidation. Appeal
dismissed with costs. Sir A.
Dorion, C.J., said: “We cannot
agree with the court below that
the Dominion Parliament had the
right to pass the Act 42 Vict.
c. 8. This Act is not in the nature
of an insolvency law, for it is in-
tended to apply to all building
societies, whether solvent or not.
It is, therefore, essentially an Act
affecting civil rights, which, under
the provisions of the B. N. A. Act,
comes within the exclusive juris-
diction of the local or provincial
legislatures.”
CHAUDII‘IRE GOLD MINING Co.
[a Boston company] v. DESBARATS
was an appeal from the Quebec Q. C.
10 Dec. 1870, 15 L. C. J. 44, in
which Caron, Badgley, Monk, J J .
[Duval, C.J., and Loranger, J .,
dissenting], held, aﬂirming a judg-
ment given on demurrer by Tor-
rance, J ., in the Sup. Ct., Montreal,
31 May 1869 [13 L. C. J. 182], that
by the law of the province of Que-
bec, Civil Code, arts. 364, 365, cor-
porations are under a disability to ac-
quire lands without the permission
of the Crown or the authority of
the legislature, and that a foreign
corporation which had purchased
lands in the said province without
such authority, and was evicted, had
no action of damages against the
vendor. Caron, J ., said: “La
question décidée par le jugement
est de savoir si les corporations de
la nature de celle qui porte la
présente action, ont droit, d’aprés
notre loi, d’acque’rir des biens
immeubles dans la province, sans
la permission de la Couronne ou
l’autorité de la legislature. Le juge-
ment qui nous est soumis a decide
la question dans la negative, et a
renvoyé l’action des appelants.
L’intimé pour soutenir le bien
jugé, réfere a l’Edit ou declaration
de 1743 [ler vol. Edits et Ordon-
nances, p. 576], fait expres pour
le Canada et enregistré au conseil
supérieur; cet edit, suivant l’intimé,
a toujours été et regardé en force
dans le pays jusqu’a la promulga-
tion du code; ainsi que l’ont de-
cidé les tribunaux dans plusieurs
especes qu’ils citent. Or, a la
clause premiere, il y est statue qu’
aucun établissement ou fondation
ne sera fait dans le pays, sans la
permission expresse de la Couronne.
La clause dix defend a toute com-
MOCLANAGAN
v. ST. ANN’s
MUTUAL
BUILDING
SOOIETY.
CHAUDIERE
GOLD MINING
Co. v. DEs—
BARATS.
O2
244
B.N.A. ACT, s. 92 (11).-POLIGY oE CoDE.
CHAUDIEEE
GoLD MINING
Co. v. DEs-
BAEATs.
munauté religieuse ou autres gens
de main-morte d’acquérir des im-
meubles, sans lettres patentes de
la Couronne; et par la clause vingt-
unieme, cette defense est faite a
peine de nullité.”
Badgley, J., said: “ The para‘
mount authority of our local law
over all corporations and their
erection in this province is unques-
tionable, whether these corporations
are of domestic or foreign origin,
as well as over the powers and
capacities granted to them. As to
the foreign bodies, this law applies
absolutely, as well in respect of
its foreign constituting law as of
the charter powers by that law
granted to those bodies, because
our local legislature has absolute
power to forbid corporations to do
certain acts, or to make certain
transactions, altogether, or under
certain conditions, and to impose
such disqualiﬁcations upon them as
the legislature may direct, and sub—
jecting those bodies to be brought
within the disqualiﬁcation of the
law. These are legal truisms
which need no citations from books
to give them support. Assuming,
then, the limited local existence
and capacity of foreign corpora-
tions in this province, it seems
plain, that the statutory permission
extended to them to sue and be
sued in our courts of justice with
reference to transactions in which
they are interested, does not relieve
them from the necessity of showing
their legal possession of the rights
and privileges of our local law to
give validity and effect to those
transactions which they use our
courts to enforce or defend; and
so equally, on the other hand,
must they show that they suﬁer
none of those disabilities and dis-
qualiﬁcations which our law im-
poses upon all corporations under
certain circumstances. Now the
3rd chapter of our Civil Code de-
clares the law applicable to cor- .
porations generally in this province,
confers upon them express rights
and privileges, and subjects them
to special and positive disabilities.
It is not necessary to refer to
the former, but for the latter—the
disabilities—the 364th article of the
code enacts, ‘ Corporations are sub-
ject to particular disabilities, which
either prevent or restrain them
from exercising certain rights,
powers, privileges, &c., which na-
tural persons may enjoy and exer-
cise; these disabilities arise either
from their corporate character, or
they are imposed by law.’ The
365th article then declares the dis-
abilities arising from the law, and
amongst them, those mentioned in
the 2nd sub-sec. of the article,
namely, ‘those comprised in the
general laws of the country respect-
ing mortmains and bodies corporate,
prohibiting them from acquiring
immovable property, or property so
reputed, without the permission of
the Crown, except for certain pur-
poses only, and to ﬁx the amount
and value.’ It is scarcely necessary
to observe that the exceptions of
this sub-section do not apply in this
case. These provisions of the
code are positive enactments, and
are not promulgated as new law,
but are given as declaratory of the
old law of the province, which
expresses not alone the general
law, but likewise the public policy
of the province in regard to insti-
tutions of this nature, and it is
common knowledge that no pro-
vincial Act or charter of incorpora-
tion by the legislature of religious
or secular bodies, has been granted,
without the legislative permission
being provided therein for their
acquisition and alienation of real
property. The royal permission of
the old French law in force, or its
equivalent, the modern legislative
charter, is by the code authori-
tatively declared to be the general
law of the province for corpora-
tions in general, and, without the
royal or legislative permission, all
corporations are prohibited from
acquiring such real property.
Whatever doubts might have ex-
isted heretofore as to the prohibi-
B.N.A. ACT, s. 92 (11).—-FOREIGN CONTRACTS.
245
tive applications of the old law,
with reference to merely trading
corporations, they have disappeared
since the promulgation of the code,
which has declared those old law
prohibitions to be and to have
been our provincial law. The
terms of the code articles are too
plain for a doubtful construction,
and in the generality embrace all
corporations, secular, lay, or trad-
ing, and subject them all to the
same disqualiﬁcation to acquire
real property, without the royal or
legislative permission ﬁrst had and
obtained. The general law of the
country, as by the 2nd sub-sec.
above, respecting both mortmainers
and bodies corporate, is to be found
originally in the ordinance of Louis
XV. of 1743, which was duly regis-
tered as municipal law in Canada
at the time, and has never been ab-
rogated or repealed, and which the
code by its statutory enactments
now assimilates with and applies to
the law of corporations and bodies
politic in general extending be-
yond the religious and eleemosy-
nary institutions of the ordinance.
The modern corporation did not
exist, and was not referred to by
the ordinance, but our declaratory
code has extended the ordinance
disqualiﬁcation to the modern body
politic corporation,trading or other-
wise, and bound it in politic pro-
hibitive terms of the old law. The
public policy of the ordinance
against publicly unsanctioned and
unpermitted acquisitions of real
property within the province, is the
prevailing public policy of our law,
binding upon all corporations, and
strictly holding this corporation at
the date of the execution of their
indenture and deed of conveyance
to them by Foley. Positive law,
as well as State policy, prohibited
the acquisition by the corporation
of the lots of land set out in the
indenture, and the corporation and
their vendor could not, ex mero
mota of both or of either, dispense
with and set aside the statutory
disqualiﬁcations of State policy or
public law. Pothier, ‘ Traite's des
Personnes,’ referring to the French
Edit of 1749 for France, in this
respect similar to that of 1743,
above, from which the former was
in part copied, says that the inca-
pacity to acquire by communautés
(mortmainors) was absolute, and
they could not acquire ‘a quelque
titre que ce soit, soit a titre gratuit,
soit a titre de commerce,’ not even
in payment of a debt, nor could
notaries give their ministry to pass
such deeds; power being reserved
to the king alone to accord per-
mission to acquire immovables, &c.”
[On the French law in Canada see
Symes o. Cuvillier, in P. C. Feb.
25, 1880, Wheeler’s P. C. Law
107 (see also cases in same, pp.
66, 105, 303); 5 App. Cas. 138;
49 L. J. P. C. 54; 42 L. T. 198;
and the Chaudiere case in P. C.,
L. R. 5 P. C. at p. 288; and see
Exchange Bank Canada, sub-sec.
13, sec. 92.] “It results from all
these circumstances, that this foreign
corporation is not known to the
law as a natural person: that it
cannot of right claim the exercise
of the rights and privileges of
natural persons; that it cannot
acquire or hold immovable property
in this province in its own name
without royal or legislative permis-
sion therefor ﬁrst had and obtained,
and could therefore suffer no legal
eviction from what it could neither
acquire nor held against a positive
prohibitory law in accordance with
public policy against such acquisi-
tion or tenure; and, therefore, could
claim or demand no damage by
reason of its own breach of the
law and of public policy, and of its
privation of illegally acquired pro-
vincial real property. Courts of
justice may sustain a contract by
a foreign corporation,but only when
they can enforce it agreeably to
the rules of the law which the
courts are bound to administer,
and not in the peculiar manner of
a foreign state, which is unknown
to and of no force within the juris-
diction of the adjudging court.
CIIAUDIERE
GoLD MINING
Co. v. DES-
BARATs.
246 B.N.A. ACT, s. 92 (11).-00NTBAOTING OUTSIDE PEov.
CIIAUDIERE
GoLn MINING
Co. C. Dm-
BARATS.
The objection of the demurrer is,
therefore, also absolute against this
corporation under the provisions of
our local law.”
That case was affirmed in the Privy
Council July 29, 1873, L. R. 5 P.
C. 277. There Sir Montague E.
Smith, in delivering the affirming
judgment, said, after citing in full
the Edits of 1743 [see 1 Code de
la Martinique (1807), 474] and of
1749 lsee 22 Isambert’s Anciennes
Lois Francaises, 227)]: “Their
Lordships, however, cannot con-
sider it to be their duty, at this day,
to construe the language of the
edict as alone containing the law
of Canada on the subject of mort-
main, because a legislative declara-
tion of the law is, in their opinion,
contained in the code, which is free
from ambiguity.” And referring
to Mr. Justice Badgley’s opinion:
“ These observations on the de-
claratory force of the code are
entitled to great weight, from the
fact that Badgley, J .. was one of the
judges who, in the case relied on
by the appellants, Nov. 23, 1857,
Kierzkowski 0. Grand Trunk
Railway Co., 4 L. C. J. 86, ex-
pressed an opinion that trading
corporations were gens de main-
morte. In that case, however, the
railway company had legislative
power to purchase lands, and the
question arose incidentally in an
action for seignorial dues. What-
ever may be the worth of the
opinions expressed in that case, the
higher authority of the code must
now prevail. Their Lordships for
these reasons think the Q. B. was
right in holding the appellants
were incapable, without license
of the Crown, which it is not aver-
red they possessed, to acquire any
title to the lands sold to them by
Foley.” [See Mr. Justice Badg—
ley’s judgment above]
See Citizens’ Insurance Co. 1).
Parsons, in S. C. 21 June 1879, 4
S. C. 215; in P. C. 26 Nov.
1881, 7 App. Cas. p. 114; 51 L.
J.P. C. 11 ; 45L.T.72l ; 30 W. R.
.836,_.and post, sub-sec. 13.
In CLARKE 0. UNION FIRE IN- '
SUR-ANCE 00., Oct. 30, 1883, 10 O.
P. R. 313; atﬁrmed June 12, 1884,
6 O. R. 223, Hodgins, Q.C., the
Master in Ordinary, said : “This is
a claim brought in by the Export
Lumber Co. of New York, against
the defendants, a ﬁre insurance com-
pany incorporated by the Legislature
of Ontario, 39 Vict. c. 93. The
policy, dated 5 August 1880, was
delivered to the claimants on the
7th or 8th ; the ﬁre occurred on the
10th of the same month. On the
11th the claimants tendered a
cheque for the premium, which
was immediately returned by the
defendants. The principal de-
fences are that the defendants,
being a provincial company, had
only limited powers, and could not
contract out of this province
(Ontario); and that the premium
not having been paid or tendered
until after the loss occurred, the
policy is void. In arguing that
the contract was ultra vlres, it was
contended that as the B N. A.
Act, sec. 92, sub-sec. 11, em-
powered the provincial legisla-
tures to incorporate companies
with ‘provincial objects,’ this cor-
poration could have no existence,
and therefore no power to contract,
outside the province; and in any
event, not having obtained legisla-
tive sanction authorizing it to
make contracts of insurance out-
side the province, this contract was
void. The substantial question is
against the legislative powers of the
provincial legislatures; it was con-
tended that a corporation created
by them has not the status nor
capacity to contract outside of
provincial jurisdiction which a
Dominion corporation possesses.
There is no warrant for this con-
tention. There is nothing in the
B. N. A. Act, nor in the classes of
subjects within their legislative
authority, which would place these
legislatures outside the deﬁnitions
given by writers on the subject.
‘ The colonial legislatures, with the
B.N.A. AOT, s. 92 (11).--THE oRowN AND PROV. LEG. 2t?
restrictions necessarily arising from
their dependency on Great Bri-
tain, were sovereign within the
limits of their respective territories.’
1 Story’s Const., 4 Ed., s. 171.
‘The legislative bodies in the dc-
pendencies of the Crown have,
sub moalo, the same powers of
legislation as their prototype in
England, subject, however, to the
ﬁnal negative of the sovereign.’
l Broom’s Com. 123. The term
‘Incorporation of companies with
provincial objects’ in the B. N. A.
Act deﬁnes the classes of corpor-
ations within the legislative
authority of the provinces; and
its meaning must be gathered
from analogous clauses, empower-
ing them to make laws in relation
to ‘local works and undertakings’
(sub-sec. 10) and ‘ matters of a mere-
ly local or private nature in the pro-
vince’ (sub-sec. 16), and under
which it is obvious the legislature
may incorporate companies for like
purposes. These references show
that the terms ‘provincial’ and
‘local’ are interchangeable, and
must be construed to mean ‘local
objects ’ within a province, in con-
tradistinction to objects common
to the several provinces in their
collective or Dominion quality, and
which are within Dominion legisla-
tive jurisdiction. This power to
incorporate companies is incidental
to a sovereignty, though such
power may be delegated. ‘The
sovereign, it is said, may grant
to a subject the power of erecting
corporations’ (Bro. Abr., tit.
‘Prorog’; Viner Prerog. 88, pl.
16), but it is really the Crown that
erects, and the subject is but the
instrument.’ 1 Bl. Com, 4 Ed,
p. 452. Corporations may be
erected by charter or by Act of
Parliament, ‘of which the royal
assent is a necessary ingredient.’
Ibid., p. 451. This assent of the
Crown, as essential to the validity
of the Acts of the provincial legis-
latures, has been questioned by the
obiter dicta of some learned judges,
who say that Her Majesty forms
no constituent part of the pro-
vincial legislatures as she does of
the Dominion Parliament. This
denial of the legislative authority
of the Crown in provincial legis-
lation touches the validity of all
provincial Acts since confedera-
tion, as the usual form of the pro-
vincial statutes is, ‘Her Majesty,
by and with the advice, &c., enacts.’
‘ The legislative power,’ says Lord
Hale, ‘is lodged in the king,
with the assent of the two Houses
of Parliament.’ 1 Hale’s Juris.
Hs. Lords, 4: ‘The making of
statutes is by the king, with the
assent of Parliament.’ 1 White-
locke, King’s Writ, 17 66,406: ‘ The
king has the prerogative of giving
assent to such Bills as his subjects,
legally convened, present. to him,
that is of giving them the force
and sanction of law.’ Bacon Abr.,
tit. ‘ Prerog.’ 489; 4 Co. Ins. 24.
This is but the common law on the
legislative prerogative of the Crown.
A reference to the Imperial Acts
which gave legislative institutions
to this province prior to the
B. N. A. Act, will show that the
provincial laws of Upper Canada
were to be made by ‘ His Majesty,
his heirs and successors,’ 31 Geo. 3.
c. 31.; and of Canada by ‘Her
Majesty, her heirs or successors,’
3 85 4 Vict. c. 35., by and with the
advice and consent of the other
legislative bodies; and these Ims
perial Acts, in so far as they re-
cognise the legislative prerogative
of the Crown in this province,
have not been repealed, but are
substantially continued by sec. 129
of the B. N. A. Act. The ques-
tion, however, appears to have been
determined in 1876 by the Judicial
Committee of the P. C. in T héberge
v. Landry, L. R. 2 App. Cas. 102,
108 [see sec. 91.], where Lord
Cairns, L.C., referring to an Act
of one of the provincial legislatures
then under review, held that it was
an Act which had been assented to
by the Crown, and to which the
Crown was a party. The B. N. A.
Act created two separate and inde~
CLARKE v.
“UNION FIRE IN-
sURANoE Co.
248 B.N.A. ACT, s. 92 (11).-SOVEREIGNTY oE PROV.
CLARKE 0.
UNION FIRE IN-
sURANcE Co. _
pendent governments, with enume-
rated and therefore limited parlia-
mentary powers. These dual govern-
ments, with their deﬁned limits of
jurisdiction,now exercise the le gisla-
tive and executive powers previously
vested in one government ; and
although both exist within the same
territorial limits, their powers are
separate and distinct, and they act
separately and independently of
each other within their respective
spheres. The powers of the legis-
lative department of the provincial
governments have been deﬁned by
our provincial courts. The case of
Re Goodhue—Tovey u. Goodhue,
1872, 19 Grant’s Ch. R. 366, 452,
decides that there is no limitation
imposed on the provincial legis-
latures as regards the extent to
which they may affect private
rights and matters of a- merely local
and private nature in the provinces ;
and as to such objects they can
pass laws to the same unlimited
extent that the Imperial Parlia-
ment may in the United Kingdom.
In Reg. 22. Hodge, 7 O. A. R. 246,
it is stated that the Dominion and
provincial legislatures derive their
powers from the same source ; and
that ‘the power to make laws in
relation to the several classes of
subjects, legislation upon which is,
by the Imperial Act, committed
exclusively to the provincial legis-
latures, is as large and complete as
it is in the classes of subjects com-
mitted by enumeration of subjects
to the Dominion Parliament. The
limits of the subjects of jurisdiction
are prescribed; but within those
limits the authority to legislate is
not limited’ (p. 251). [See also
Hodge 'v. The Queen in P. C., 9
App. Cas. 117, and sub-sec. 13.]
These cases show that both the
Dominion and the provincial legis-
latures have plenary powers of
legislation to the extent necessary
for the eﬁicient exercise of the ex-
clusive legislative authority of each,
and that they therefore are sove-
reignties within the deﬁnitions given
in 1 Story’s Const. sec. 171. ; Phil-
lips 21. Eyre, L. R. 6 Q. B. p. 20,
and The Queen u. Burah, 3 App.
Cas. p. 904. Each has authority
to create corporations; and there-
fore a company incorporated by a
provincial legislature has, for the
purpose of his business, the same
corporate franchises and powers
within the jurisdiction creating it
as a company incorporated by the
Imperial or the Dominion Parlia—
ment, and may transact its business
outside the province wherever by
comity or otherwise its contracts
are recognised. This power to
transact insurance business out-
side the provincial jurisdiction crea—
ting such corporations is regu-
lated within Canada by the Act
40 Vict. c. 42. s. 28, which pro-
vides that companies incorporated
by a provincial legislature for
carrying on the business of in-
surance within a province, may,
under certain conditions, transact
such business throughout the Do-
minion; and the case of Citizens’
Insurance Co. 1). Parsons, 7 App.
Cas. p. 115 [see sub-sec. 13], illus-
trates to some extent the jurisdic-
tion of the provincial legislatures
over companies incorporated by the
Imperial or Dominion Parliaments.
As to the contention, that these
defendants not having obtained
permission in their Act of incor-
poration to transact insurance busi-
ness in foreign countries, it may be
answered that no legislature can
confer upon corporations created
by it the right to carry on business
outside its own territory. The
legislative enactments of a country
have no living force proprio uigore
in other territorial sovereignties.
Where, however, a legislature as-
sumes to authorize its corporations
to carry on business in foreign
countries, .such authority is no
more than a legislative sanction to
an agreement between the corpora-
tors that their business may be
carried on abroad as well as at
home. It has been held in one of
the federal courts of the United
States, that it is not competent for
B.N.A. AcT, s. 92- (11).--LO0AL STREETS.
249
a State legislature to enact that its
citizens shall not make such con-
tracts as they please in respect to
their business out of the State. Lamb
v. Bowser, 7 Biss. Cir. Ct. 315.
Where there is no express pro-
vision in the charter of a corpora-
tion limiting its ordinary business
to a particular place or territory,
no such limitation can be implied.
Morawetz on Corp. 502. And
there is nothing in our law which
would prevent a corporation created
here from carrying on business
both at home and abroad in the
same manner as an individual or a
co-partnership engaged in a similar
enterprise. The contract here sued
upon appears to be within the cor-
porate powers of these defen-
dants; and the cases shew that
such a contract would be recog-
nised as valid in a foreign country.”
REG. 1). MOHR, 8 June 1881,
7 Q. L. R. 183, was a case where
the defendant, agent of the Bell
Telephone Co. of Canada, was in-
dicted for illegally erecting three
telegraph poles in Buada Street, a
leading thoroughfare in the city of
Quebec, thereby obstructing the
Queen’s highway. The company
was incorporated by 43 Vict.
(Dom) c. 67 ., with power to estab-
lish telephone lines in several pro-
vinces of the Dominion, and to
construct, erect, and maintain lines REG- v- MOHR-
along any public highway, street,
bridge, &c., either wholly in
Canada or dividing Canada from
any other country. It appears the
business of the company with re-
gard to the poles objected to was
of a purely local character, and
conﬁned to the district of Quebec.
It was held that the establishment
of the company was one of purely
local character and intended to
serve local purposes, having no
pretension to connect other pro—
vinces or even to cross rivers, &c.
That to give the Dominion Parlia-
ment the power to authorize the
Bell Telephone Co. to impede cir—
culation and traffic in the streets
of Quebec, one of two conditions
would have been required [per Sir
A. Dorion, C.J “Either the
company should have been incor-
porated for the purpose of connect-
ing by telephone lines the province
with any other or others of the pro-
vinces of the Dominion, or of ex-
tending its lines beyond the limits
of the province of Quebec, or it
should have been declared by the
Parliament of Canada to be for the
general advantage of Canada, or for
the advantage of two or more of the
provinces.” The judges were Sir
A. Dorion, C.J., and Monk, Ram—
say, T essier, and Cross, J J .
(12.) The solemnization of marriage in the province.1L
1 In CITIZENS’ INSURANCE Co. v.
PARSONS, Nov. 26, 1881, 7 App.
Cas. 96; 51 L. J. P. C. 11; 45
L. T. 721, and below 4 S. C. R.
215 [see full report, sub-sec. 13,
sec. 92], Sir Montague E. Smith
said: Notwithstanding the “ endea-
vour to give pre-eminence to the
Dominion Parliament in cases of a
conﬂict of powers, it is obvious that
in some cases where this apparent
conﬂict exists, the legislature could
not have intended that the powers
exclusively assigned to the pro-
vincial legislatures Should be ab-
sorbed in those given to the
Dominion Parliament. Take as
one instance the subject of ‘ mar-
riage and divorce,’ contained in
the enumeration of subjects in
sec. 91 [sub-sec. 26] ; it is evident
that the solemnization of marriage
would come within this general
description, yet ‘solemnization of
marriage in the province’ is enu-
merated among the classes of sub-
jects in sec. 92., and no one can
doubt, notwithstanding the general
language of sec. 91, that this sub-
CITIZENS’ IN—
sURANcE Co. v.
PARsoNs.
250 B.N.A. ACT, s. 92 (12).-—PR()VINCIAL DIV. COURTS.
Divorce Laws.
ject is still within the exclusive
authority of the legislatures of the
provinces.”
Although by the terms of sub-
sec. 26, sec. 91, “marriage and
divorce ” lies within the jurisdiction
of the Dominion Parliament, four
provinces have still retained their
divorce court as possessed by them
before confederation, namely, Nova
Scotia, New Brunswick, Prince
Edward Island, and British Co-
lumbia. The Dominion Parliament
has jurisdiction in divorce cases
from Ontario and Quebec; but it
is said to be utterly impossible to
render justice to the applications
for divorce, because, either from
religious or personal motives, a
majority of the Senate vote against
all applications for divorce, no
matter what the evidence is.
There are 39 Protestant and 31
Roman Catholic Senators. It is felt
by some that this injustice must be
remedied by a Dominion Act deal-
ing with the matter, and handing
the decision in divorce cases over to
the regular courts.
In Lower Canada and Quebec,
the law of divorce, says Burge,
1 C01. and For. Laws, p. 661, are
governed by the law of France as
it existed before the Revolution,
and on p. 644 he says, “In the
earliest age of the monarchy of
France, divorces ti vinculo were
permitted. But that kingdom
adopted the prevailing opinion of
the Catholic Church that the mar-
riage was indissoluble, and ad-
mitted only a divorce a mensa et
Mom, or, as it is called, la separa-
tion l’habz'tatz'on. This species of
divorce was granted at the instance
of the wife when the husband had
falsely accused her of a capital
crime, or had treated her cruelly,
not only by offering her personal
violence, or withholding from her
the necessary means of subsistence,
but by habitually treating her
before the visitors of the house, the
domestics, and the children, with
contempt. The wife could not
obtain a. divorce for adultery com-
mitted by the husband, although
the adultery of the wife afforded
a ground on which the husband
might obtain a divorce from her.
Thus separation could only be
effected by judicial sentence. The
parties could not by any act or
agreement between themselves, or
by any admission of the facts
on which the separation could be
awarded, withdraw from the judge
the full and entire cognizance of,
and adjudication on, them. The
law of France not only discounte-
nanced frivolous causes of separa-
tion, but endeavoured, by the pro-
cedure to which it subjected the
application for divorce, to prevent
its being obtained by consent or
collusion. Pothier, tit. ‘ Marriage,’
part 6, c. 2. “Such continued to
be the law of France until the
Revolution swept it away,” 20
Sept. 1792.
Now, for Quebec, Manitoba, and
the North-‘Vest Territories, the
Federal Parliament constitutes a
Court of Divorce, proceedings being
begun in the Senate. Can. Year
Book, 1894, p. 909.
DIVORCE IN NovA SCoTIA.—-By
Nova Scotia Act, 32 Geo. 2. 1758,
c. 17., the Governor and Council
had the power of dissolving mar-
riages for adultery, wilful desertion,
and withholding necessary main-
tenance for three years together.
Sec. 7 enacted that no marriage
shall be declared null and void
except for impotence or of kindred
within the prohibited degrees,
32 Hen. 8. c. 38., and that no de-
cree for divorce should be granted
for any other “ than the two fore-
going and the two following causes,
namely, that of adultery and that of
wilful desertion, and withholding
necessary maintenance for three
years together, in any of which
cases every person suing for a di-
vorce, shall be entitled to a decree
for that purpose, to be obtained from
the Governor or Commander-in-
Chief for the time being, and His
Majesty’s Council, who shall have
B.N.A. AoT, S. 92 (12).-DIVORGE IN New. worm. 251
full power and authority to grant
the same.” In the above Act, the
same as in the old Scotch law, Act
1573, c. 55., for divorce for non-
giving adherence, there is no cruelty
speciﬁcally mentioned. By Nova
Scotia Act, 1 Geo. 3. c. 7 ., which,
after reciting sec. 7 of 32 Geo. 2. c.
17., continued : “which clause has
been found to be inconsistent with
the laws of England [see below], be it
therefore enacted by the Honourable
the Commander-in-Chief, the Coun-
cil and Assembly, that the causes
for which marriages shall be de-
clared null and void shall be in all
causes of impotence, of precontract,
and kindred within the degrees
prohibited in an Act made in
32 Hen. 8. c. 38., entituled, an Act
concerning precontracts, and touch-
ing degrees of consanguinity, of
adultery, and of cruelty, and for
none other causes whatsoever.”
In a note to Uniacke’s Ed. of
the N. S. Statutes at Large, 1805,
p. 69, he says: “By the laws of
England, the causes of divorce,
dissolving the bond of marriage,
are, precontract, impotence, con-
sanguinity, affinity, and causa
metus ante nuptias ,- which, being
precedent impediments, the mar-
riage was a nullity and ab initio
void. Adultery and cruelty being
subsequent to the marriage, though
they are proper causes for tempo-
rary separation a mensa et thoro,
yet they do not affect the validity
of the marriage, and consequently
cannot, as in themselves, dissolve a
vinculo matrimoniz', nor can such
divorce bar the wife of her dower
or bastardize the children. The
principal ground of amendment of
this Act seems to have been the
permission of divorce for wilful
desertion, &c., as not agreeable to
the laws of England, for this cause
is now omitted by the Act, and
all other causes are, as in the former
Act, inserted. By R. S. N. S.
(1st series) c. 128., the Governor was
to be President of the Court of Mar-
riage and Divorce, and might ap-
point the Chief Justice, the Master
of the Rolls, or any one of the Divorce Laws..
judges of the Supreme Court, to be
Vice-President. The Vice-Presi-
dent was to sit as a member of the
court when the Governor was pre-
sent, and should preside in his
absence. By sec. 4, the court was
to have jurisdiction over all matters
relating to prohibited marriages
and divorce, and may declare any
marriage null and void for impo-
tence, adultery, cruelty, precon-
tract, or kindred, and might, after
sentence, pronounce such deter-
mination as it thinks ﬁt on the
rights of the parties, or either of
them, to courtesy or dower. By
R. S. N. S. (2nd series), 1864,
c. 128., the Vice-President and any
two members of the Council were
to constitute a court, and the court
might grant alimony pendente lite,
award costs, &.c.
By 28 Vict., 1865, N. S., c. 1.
s. 10, the judge in equity was to be
the Vice-President, and by 29 Vict.,
1866, N. S., c. 13., the Vice-Presi-
dent was to compose the court
under the title of the Judge Ordinary
of the Court for Divorce and Mat-
rimonial Causes (the new name).
Sec. 6 gave a right of appeal to the
Supreme Court; and the court was
to have the same powers as the Di-
vorce and Matrimonial Causes Court
in England—but not so as ‘to
abridge any of its powers—as to
alimony, custody, maintenance and
education of children. By this Act
the Governor might appoint a judge
of the Supreme Court to preside.
The largest number of divorces out
of all the provinces are granted by
the Nova Scotia Court. This is
attributed, in the Oflicial Statistical
Year Book, 1894, p. 911, to the
fact that the fees established many
years ago [see R. S. N. S. (4th series)
0. 114.] are so small that the poorest
in the land are not prevented from
seeking relief in the courts.
In New Brunswick an Act was
passed in 1787 for regulating mar-
riage and divorce. By 31 Geo. 3.,
1791, c. 5. s. 5, all causes, suits,
controversies, touching and con-
252 , B.N.A. ACT, s. 92 (12).-—DIVOROE IN N.B. AND P.E.I.
Divorce Laws.
cerning marriage and divorce, as
well from the bond of matrimony
as divorce and separation from bed
and board, and alimony were to be
heard before the Governor or
Commander-in-Chief and His Ma-
jesty’s Council, or any ﬁve or more
of the said Council. Section 9
enacted that the causes of divorce
from the bond of matrimony, and
dissolving and annulling marriage
are :— then it set out the causes
given below in P. E. I. Act,
5 Will. 4. c. 10. s. 4, but “for
no other causes whatsoever.”
By 4 Will. 4., 1834, c. 30., a
judge of the Supreme Court was
added. The 6 Will. 4., N. B.,
1836, altered the terms of holding
the court. An Act in 1847 enacted
further regulations of the court.
These were repealed. By 23 Vict.,
1860 (N. B.), c. 37., the Court of
.“ Divorce and Matrimonial Causes”
was established. By sec. 2, the
Governor in Council was to appoint
one of the judges of the Supreme
Court to be judge of the said court.
By sec. 10, the practice and pro-
ceedings of the court were to be con-
formable as near as may be to the
practice of the Ecclesiastical Court
in England prior to Divorce and
. Matrimonial Causes Act of 1857,
subject, however, to the provisions
of the Act and the existing rules,
orders, and practice. By sec. 13, a
right of appeal was given to the
Supreme Court.
Prince Edward Island, 3 Will.
4. c. 22. established a Court of
Divorce, and contained a clause
rendering null a second marriage
of the guilty party.
By R. S. P. E. I., 5 Will. 4.
(1835) c. 10. s. 6., 3 Will. 4. c. 22.
was repealed, and the 5 Will. 4.
c. 10., which was brought into force
by proclamation 7 June, 1836,
provided: “Whereas it is neces-
sary, in order to the keeping up of
a decent and regular society, that
the matrimonial union be protected,
and that a court be constituted for
cases of divorce and alimony. Be
it therefore enacted by the Lieu-
tenant-Governor, Council, and As-
sembly, that from and after the
publication hereof all causes, suits,
controversies, matters and ques-
tions touching and concerning
marriage and contracts of marriage
and divorce, as well as from the
bond of matrimony as divorce and
separation from bed and board and
alimony, shall and may be heard
and determined by and before the
Lieutenant-Governor or other ad-
ministrator of the government,
and his Majesty’s Council; and
that the Lieutenant-Governor, or
other administrator of the govern-
ment, and Council aforesaid, or any
ﬁve or more of the said Council,
with the Lieutenant-Governor or
other administrator as president, be,
and they are hereby constituted,
appointed, and established a court
of judicature in the matters and
premises aforesaid, with full autho-
rity, power, and jurisdiction in the
same.” The Act then contained a
proviso that nothing in the Act
should be construed to control the
rights of any other court, and that
no sentence of the court or Lieu-
tenant-Governor and Council was
to affect the right of action of any
person for injury by reason of any
breach of covenant or contract of
marriage.
By sec. 2, the said court shall
commence and be held on the se-
cond Monday in May in each and
every year, with power to adjourn.
By sec. 3, the Lieutenant-Governor,
or other administrator of the island,
may appoint the Lord Chief Justice
of the Supreme Court of Judicature
to preside in his stead, and exer-
cise all powers hereby given to
Lieutenant-Governor. Sec. 4 set
out the causes of divorce from the
bond of matrimony and of dis-
solving and annulling marriage as
“ Frigidity or impotence, adultery,
and consanguinity within the de-
grees prohibited,” and by 32 Henry
8. c. 38. s. 5, provided that in case
-of divorce the issue of the marriage
should not be bastardized nor the
wife barred of dower, nor the hus-
B.N.A. ACT, s. 92 (12).—MARRIAGE LICENSES.
253
band deprived of any tenancy by
the courtesy of England, unless it
shall be so expressed or adjudged
by the sentence.
For twenty-six years no divorce
has been granted in Prince Edward
Island.
By ordinance passed in 1867,
after the union of Vancouver to the
mainland, British Columbia exer-
cised the power of granting divorces,
C. Stat, YearB, 1874, p. 909. By
ordinance dated 19 Nov. 1868, it
was enacted that all the civil and
criminal laws in England, as they
existed at that date, should be in
force in all parts of British Co-
lumbia. T wenty-six divorces have
been granted since 1868 by the
court in British Columbia.
In the United States, formerly it
was the practice for the various
legislatures, like the English Parlia-
ment, to grant divorces by special
Act. Generally at the present
time the jurisdiction to grant di-
vorces is conferred by statute on
the courts of equity, or courts pos-
sessing equity powers, subject to
such modiﬁcation as the particular
statute may direct. [1 Bouvier’s
Law, 493.]
In STEVENS o. FISH, 12 Jan.
1885 [Cashel’s Dig. S. C. R.
237; 8 L. News, 42, 53], an ap-
peal from Q. B. Quebec, 19 Sept.
1883 [6 L. News, 329], which
reversed a judgment of the Superior
Court, Quebec, 25 Feb. 1882
[5 L. News, 79], it was held
that a decree of divorce obtained
from the Supreme Court at New
York was valid, the evidence
establishing that the plaintiff had
had a sufficient residence in New
York to enable her to obtain a
valid divorce there. It appeared
that the marriage was in New
York, 1871, both parties being
domiciled there; that in 1873 the
husband removed to Montreal,
taking with him, it was alleged,
his wife’s property. In 1880 the
plaintiff, the wife, obtained a
divorce in New York, and in 1881
raised this action in the Superior Divorce Laws.
Court, at Montreal, to obtain an
account from her husband, the
defendant. Defendant alleged the
plaintiff was still his wife. This
plea was overruled by the Superior
Court, but an appeal was allowed
by the Court of Queen’s Bench.
On appeal to the Supreme Court,
Ritchie, C.J., Fournier, Henry, and
Gwynne, J J ., allowed the appeal;
Strong, J ., dissented, being of
opinion the divorce was invalid.
Ritchie, C.J., said: The evi-
dence established that the plaintiff
had a suﬂicient residence in New
York to enable her to obtain under
the law of New York a valid
divorce there, and that she did, in
accordance with the law of the
State of New York, without fraud
or collusion, obtain such a divorce
from a court competent to pro-
nounce it. That if the question
of jurisdiction turns on the question
of the husband’s domicile, the
burden was on the husband of
showing that he had actually
changed his domicile animo et de
facto. Having been cited before
the Court of New York, and having
appeared in the suit and submitted
to, and not disputed, the jurisdic-
tion of the Court, the legitimate
presumption against him was that‘
he had not changed his domi~
cile.
Doubts were raised in 1869 as
to the validity of an Act, 31 Vict.
c. 2., of the province of N ova
Scotia to amend R. S. N. S. c. 120.,
the solemnization of marriage and
the registration of marriages, 8:0.
It provided that the licenses men-
tioned in s. 5 of c. 28. of the Acts
of 1866 should not be deposited
with the chairman of the Boardv of
Statutes, for distribution, but that
the same Should be distributed by
the provincial secretary. The
Minister of Justice was of opinion
the Act was objectional, as the
power of issuing marriage licenses,
he claimed, was in the Governor-
General as Ordinary, and under the
powers given him by his commis-
STEvENs -v.
FISII.
254 B.N.A. ACT, s. 92 (12).—-GOVERNORS’ COMMISSIONS.
Divorce Laws.
sion, but as it was a question
which might affect the validity of
marriages, he proposed to submit
it to the Secretary of State for the
Colonies for the opinion of Her
Majesty’s Law Officers. Prov.
Leg, 1886, p. 336.
Shortly afterwards the New
Brunswick Legislature passed, in
1870, the 33 Vict. c. 93., providing
for the issue of marriage licenses by
the Lieutenant-Governor of that
province; and the question whether
the authority to grant marriage
licenses vested in the Governor-
General of Canada, with the power
of legislating on that subject in
the Parliament of Canada, was
raised. On 29 Nov. 1869 Sir J.
Macdonald, Minister of Justice, re-
ported :—
“ A Bill relating to Marriage
Licenses (c. 93 of Acts of 1870),
was passed by the Legislative
Council and Assembly of the pro-
vince of New Brunswick during its
last session, and reserved by the
Lieutenant—Governor for your
Excellency’s assent. The Act is
as follows :—
“‘ Be it enacted by the Lieu-
tenant-Governor, Legislative Coun-
cil and Assembly, as follows :—
“‘ 1. That all marriage licenses
issued and signed by any Lieu-
tenant-Governor or administrator
of the government of this pro-
vince since lst May 1854, by
virtue of his otﬁce, and all marriage
licenses signed by any Deputy-
Governor since 1st July 1867,
shall be deemed as valid and eﬁec-
tual as though he had been
specially authorized by Act of the
legislature of this province to sign
the same.
“ ‘ 2. That from and after the
passing of this Act, all marriage
licenses shall be issued from the
otﬁce of the provincial secretary,
under the hand and seal of the
Lieutenant-Governor, or of the
person administering the govern-
ment of this province for the time
being.’ This Bill raises the question
which has been already mooted in
the other provinces of the Do-
minion, as to where the authority
to issue marriage licenses since the
B. N. A. Act came into force, rests.
Up to that time the power was
vested in the Governors of the
several provinces, as ordinary. (See
Stokes on Colonies, pp. 149 and
184.) Express power to issue mar-
riage licenses seems to have been
given in every commission of every
Governor-General of Canada, or in
the instructions accompanying such
commission. In the instructions
addressed to the Hon. James
Murray, as Captain-General and
Governor-in-Chief of the province
of Quebec, dated 7th December,
1763 (the ﬁrst Governor after the
conquest), it is provided, in the
27th paragraph, as follows :—
“ ‘ And, to the end that the ex-
clusive jurisdiction of the Lord
Bishop of London may take place
in our province, under your Govern-
ment, as far as conveniently may
be, we do think ﬁt that you do
give all countenance and encourage-
ment to the exercise of the same,
excepting only the collating to
beneﬁces, granting licenses for. mar-
riage, and probate of wills, which
we have reserved to our Governor
and our Commander-in-Chief of our
said province for the time being.’
All subsequent commissions or
instructions seem to contain the
same power.
“ By the Marriage Act in Upper
Canada, C. S. of U. C., c. 72, it
is enacted that no clergyman shall
celebrate marriage unless duly
authorized so to do by license under
the hand and seal of the Governor,
or by the publication of banns.
“In Lower Canada no express
power was given to the Governor
by statute, but in the Act relating
to the registration of marriages,
C. S. L. C., c. 20, it is provided
that ‘in the entry of a marriage in
the registry, it shall, among other
things, be speciﬁed whether the
parties were married after the pub-
lication of banns, or by dispensation
or license.’
B.N.A. ACT, s. 92 (12).-—SOLEMNIZATION ()F MARRIAGE. 255
“In the R. S. of N. S., c. 120,
it is provided that ‘ no person shall
oﬁiciate in the solemnization of
marriage unless on public notice or
on license, and that the Governor
may, from time to time, sign and
seal marriage licenses and deposit
the same with the provincial secre-
tary, &c.’
“In the R. S. of N. 13., c. 106,
it is provided that ‘ Christian minis-
ters may solemnize marriage by
license or by publication of banns,
and the Governor in Council may
appoint persons in every county to
issue marriage licenses.’
“The undersigned is of opinion
that none of these statutes can be
held as conferring any new power
upon the Governors; but that mar-
mariage licenses were issued by
them by virtue of their commissions
and as ordinary, having jurisdiction
as such directly for the Crown. By
the B. N. A. Act, exclusive powers
of legislation as to ‘ marriage and
divorce ’ is given to the Parlia-
ment of the Dominion by sec. 91,
paragraph 26 ; and by sec. 92,
paragraph 12, the legislatures of
the provinces have exclusive powers
of legislation respecting the ‘ solem-
nization of marriage.’
“ The commission of Lord
Monck, the ﬁrst Governor-General
of the Dominion, in its 7th para-
graph, empowers him to exercise
all such power as the Queen may
be entitled to exercise within the
Dominion, in respect of granting
licenses for marriages, &c., and the
same power is contained in the
commission to your Excellency.
“ Two questions now arise,
viz. :—
“ 1. Whether the authority to
issue marriage licenses is vested in
your Excellency as Governor-
General, under Her Maj esty’s com-
mission, or in the Lieutenant-
Governors of the several provinces.
“ 2. Whether the power of legis—
lation respecting the publication of
banns, or the issue of licenses, rests
with the general or local legis-
tures.
“ As to the ﬁrst point, the under- Divorce Laws-
signed is of opinion that the power
rests with the Governor-General,
under his commission, and not
with the Lieutenant-Governors.
They do not hold their appoint-
ment directly from the Queen, but
are appointed by the Governor-
General in Council pursuant to the
58th section of the Act. Their
powers are simply those conferred
upon them by the statute, and they
have no right to deal with matters
of prerogative as representatives of
the Sovereign.
“ The second question, as to
where the power of legislation on
the subject rests, has excited much
interest in Canada, and conﬂicting
opinions exist with respect to it.
“ The power given to the local
legislature to legislate on the solem-
nization of marriage was, it is
understood, inserted in the Act at
the instance of the representatives
of Lower Canada, who, as Roman
Catholics, desired to guard against
the passage of an Act legalizing
civil marriages without the inter-
vention of a clergyman, and the
performance of the religious rite.
They therefore desired that the
legislature of each province should
deal with this portion of the law of
marriage. The Act must, how-
ever, of course, be construed accord-
ing to its terms, and not according
to the assumed intention of its
framers.
“The undersigned is of opinion
that the right to legislate respect—
ing the authority to marry, whether
by publication of banns, by license
or by episcopal dispensation, is part
of the general law of marriage, re-
specting which the Parliament of
Canada has exclusive jurisdiction.
“The publication of banns or
the license (as the case may be) is
no part of the solemnization, it is
merely the authority to solemnize.
The solemnization is not com-
menced by the issue of the license
or the publication of the banns; all
the English Marriage Acts treat
the authority, and the solemniza-
256 '
B.N.A. ACT, s. 92 (12).—-MARRIAGE ACTS.
Divorce Laws.
AsTILI. v.
HALLEE.
tion under the authority, as quite
diﬁerent matters. Thus, it is pro-
vided in the 4 Geo. 4. c. 76. ss. 9 and
19, that, ‘ when ever a marriage shall
not be had within three months
after the complete publication of
banns, or the granting of license,
no minister shall proceed to the
solemnization of such marriage
until a new license shall have been
obtained, or a new publication of
banns had,’ and by the 21st sec-
tion, the solemnization of marriage,
without due publication of banns or
license of marriage, is made a
felony.
“ In order to convict a person
under this clause, it must be alleged
and proved that the solemnization
was not only commenced but com-
pleted; and if the license or banns
were a necessary portion of the
solemnization, the offence would
never be completed without them.
The subsequent Marriage Acts
seem to draw the same distinction
between the authority and the
solemnization.
“ The undersigned is, therefore,
of opinion that this reserved Act is
beyond the jurisdiction of the local
legislature, and should not receive
the assent of your Excellency.”
The matter was referred to the
Secretary of State for the Colonies.
On 15 Jan. 1870, Earl Granville
wrote :—
“The Law Officers are disposed
to concur with the Minister in his
view of the ﬁrst question stated by
him, but they are unable to concur
in his opinion that the authority to
grant marriage licenses is now
vested in the Governor-General of
Canada, and that the power of
legislating on the subject of mar—
riage licenses is solely in the Parlia-
ment of the Dominion.
“It appears to them that the
power of legislating upon this sub-
ject is conferred on the provincial
legislatures by 30 85 31 Vict. c. 3.
[B. N. A. Act], sec. 92, under
the words ‘ the solemnization of
marriage in the province ’; the
phrase ‘ the laws respecting the
solemnization of marriages in Eng-
land’ occurs in the preamble of
the Marriage Act (4 Geo. 4.
c. 7 6.), an Act which is very largely
concerned with matters relating to
banns and licenses, and this is,
therefore, a strong authority to
show that the same words used in
the British North America Act,
1867, were intended to have the
same meaning; ‘ marriage and
divorce,” which, by the 91st sec-
tion of the same Act, are reserved
to the Parliament of the Dominion,
signify, in their opinion, all matters
relating to the status of marriage,
between what persons, and under
what circumstances it shall be
created and (if at all) destroyed.
There are many reasons of con-
venience and sense why one law as
to the status of marriage should
exist throughout the Dominion,
which have no application as re-
gards the uniformity of the pro-
cedure, whereby that status is
created or evidenced.
“Convenience, indeed, and rea-
son would‘, seem alike in favour of
a diﬁerence of procedure being
allowable in provinces differing so
widely in external and internal cir-
cumstances as those of which the
Dominion is composed, and of per-
mitting the provinces to settle their
own procedure for themselves, and
they are of opinion that this per-
mission has been granted to the
provinces by the Imperial Parlia-
ment, and that the New Bruns-
wick Legislature was competent to
pass the Bill in question.”
The Governor-General’s assent
to the Bill was given 12 April
1870. [Prov Leg, 1886, p.
446.]
In AsTILL AND HUSBAND v.
HALLEE, 31 Dec. 1877, QB. Que-
bec [Meredith, C.J., Casault and
Caron, JJ.], 4 Q. L. R. 120, it was
held, reversing Stuart, J. (Sup. C.),
per Meredith, C.J ., that “according
to the well-established jurispru-
dence of the Parliament of Paris,
for more than two centuries before
B.N.A. AcT, s. 92 (13).—PARAMOUNT AUTHoRITY. 257
that tribunal was abolished, a com-
munity of property was held not
to exist between persons, who,
having been domiciled and having
married without contract, in a place
where the law of community did
not exist, afterwards established
their domicile and acquired pro-
perty in a county where the law of
community did exist”; and “that
according to the same jurispru-
dence, the law of the community
was considered rather as a statiit
personnel than as a statﬁt reel.”
“ That the same jurisprudence has
invariably been observed by the
court of this province.” With
respect to the evidence of domi—
cile at the date of marriage, see
McMullen v. Wadsworth, 2 Mon.
Q. B. 113; 12 S. C. R. 466; in
P. C. July 27, 1889, 14 App. Cas. Divorce Laws.
631 ; 59 L. J. P. C. 7; Wheeler’s
P. C. Law, 987. See also Laramée
n. Evans, 24 Dec. 1881 (Jetté, J.),
25 L. C. J. 261. AS regards French
law in Quebec, it may be noted that
Symes v. Cuvillier, in Q. B. Quebec,
22 June 1878; in P. C. (affirm-
ing), 25 Feb. 1880 _; Wheeler’s
P. C. Law, 107; 5 App. Cas. 138;
49 L. J. P. C. 54; 42 L. T. 198,
decided that the old law of France
of Louis 14th, 1663, partly adopted
to the effect that a gift before mar-
riage was not revocable by the
donor on the birth of children, was
the law of Quebec, the French or-
dinance of 1731 revoking the gift
on the birth of children never
having been registered in Canada.
(13.) Property and civil rights in the province.1
1 In CITIZENS’ INSURANCE Co.
OF CANADA 1:. PARSONS [see
below], the question arose as to
the validity of the Ontario Act,
39 Vict. c. 24., an Act to secure
uniform conditions in policies
of ﬁre insurance, and whether
it was in excess of the provincial
legislative power. It prescribed
certain conditions which were as
against the insurers to form part
of every policy of ﬁre insurance
entered into or in force in On-
tario, whether the companies were
foreign or colonial. There already
existed at Dominion Act, 38 Vict.
c. 20., requiring all insurance
companies to obtain a. license.
The Ontario Act was held valid.
Sir Montague E. Smith, in de-
livering judgment, said: “It is
enough for the decision of the pre-
sent case to say that the Dominion
Parliament’s authority to legislate
for the ‘regulation of trade and
commerce’ does not comprehend
the power to regulate by legislation
the contracts of a particular busi-
ness or trade, such as the business
of ﬁre insurance in a single pro-
vince; and, therefore, that its
S 2340.
legislative authority does not in
the present case conﬂict or com-
pete with the power over property
and civil rights assigned to the
Legislature of Ontario by sub-sec.
3, sec. 92.”
Lord Watson, in delivering
judgment in TENNANT 4). UNION
BANK OF CANADA, in Ct. App.
Ontario, Jan. 8, 1892, 19 O. A. R.
l; in P. C. Dec. 9, 1893, P. C.
[1894] A. C. 31, p. 45; 63 L. J.
P. C. 25; 69 L. T. 25 [see full
report below], said: “ Section 91
expressly declares that, ‘ notwith-
standing anything in this Act,’ the
exclusive legislative authority of
the Parliament of Canada shall
extend to all matters coming
within the enumerated classes;
which plainly indicates that the
legislation of that Parliament, so
long as it strictly relates to these
matters, is to be of paramount
authority. For example, among
the enumerated classes of subjects
in section 91 are, ‘Patents of in-
vention and discovery,’ and ‘ Copy-
rights.’ It would be practically
impossible for the Dominion Par-
R
CITIZENS’ IN-
sURANcE Co. or
CANADA '0. PAR-_
soNs.
TENNANT v.
UNION BANK
or CANADA.
258
B.N.A. ACT, s. 92 (13).——DOM. & CIVIL RIGHTS
TENNANT '0.
UNION BANK
OF CANADA.
CITIzENs’ IN-
sUBANcE Co. or
CANADA’U. PAB-
soNs, 856.
001.. BUILDING
AND INVESTMENT
Asso. v. ATT.-
GEN. 0E
QUEBEC.
liament to legislate upon either of
these subjects without affecting
the property and civil rights of in-
dividuals in the provinces.” See
also Cushing r. Dupuy, in Q. B.
Quebec, 22 March 187 8, 22 L. C.
J. 201; in P. C. April 15, 1880,
5App. Cas. 409; 49 L.J.P. C63;
42 L. T. 445. [See ante, p. 80.]
Where there is no legislation of
the Dominion Parliament in exist-
ence, an Act of the provincial
legislature dealing with. the sub-
ject, which follows the old law of
Canada and England, is not im-
peachable as being ultra rlres of
section 91. See Att.-Gen. of On-
tario '0. Att.-Gen. of Dominion of
Canada, in Ct. App. Ont. 9 May
1893, under the name In re As-
signments, 20 O. A. R. 489; in
P. C.Feb. 24, [1894] A. C. 189;
63 L. J. P. C. 59; 70 L. T.
538. [See full report below]
CoLoNlAL BUILDING AND IN-
VESTMENT AssocIATIoN c. Arr.-
GEN. OF QUEBEC, in Q. B. Quebec,
24 March 1882, 27 L. C. J. 295;
in P. C. Dec. 1, 1883,'9 App. Cas.
157; 53 L.J.P.C. 27; 49 L.T.789
[see sub-sec. 11, sec. 92], decided
that if an Act of the Dominion
gives a company power to deal in
land all over the Dominion, that
capacity given only enables it to
acquire and hold land and build-
ings in any province consistently
with the laws of that province
relating to the acquisition and
tenure of land. But, when the
allegation is made that such an in-
corporated company has violated
the law of a particular province,
the petition must strike at that
alleged wrong, and proceedings
founded on that alleged wrong
must show the scope and effect of
the laws of the province: If the
Crown’s consent is required, that
fact and the nature and sufficiency
of the evidence of it; the conse-
quence of a violation of the pro-
vincial laws, and the proper parties
to take advantage of it. So, also,
if the allegation is that the Domi-
nion Incorporated Company vio-
lates lmilding Acts of the province,
the Acts of the province regarding
building societies must. be clearly
shown. [9 App. at p. 67.]
THE ClrlzENs’ INsUBANCE Co.
or CANADA r. PABsoNs, and THE
QUEEN INsURANCE Co. e. PAR-
SONS. In the Supreme Court of
Canada, 21 June 1880, 4 S. C. R.
215 [Ritchie, C.J., Strong, Four-
nier, Henry, J J .; T aschereau and
Gwynne, JJ., dissenting], affirm-
ing Moss, C.J.A., Burton and
Paterson, J J .A., in Frey Iv. Mu-
tual Fire Insurance, 4 O. A. R.
293, which was afﬁrmed Q. B., 43
U. C. Q. B. 102; and Ulrich v.
National Insurance Co., 42 U. C.
Q.B. 141; in P. C. 26 Nov. 1881,
7App. Cas. 96; 51 L. J. P. C. 11;
45 L. T. 721. Sir Montague E.
Smith delivered the following
judgment [there being also pre-
sent Sir Barnes Peacock, Sir
Robert P. Collier, Sir Richard
Couch, Sir Arthur Hobhouse]:
“The questions in these appeals
arise in two actions brought by
the same plaintiff (the respondent)
upon contracts of insurance against
ﬁre of buildings situate in the pro-
vince of Ontario, in the Dominion
of Canada.
“The most important question
in both appeals is one of those,
already numerous, which have
arisen upon the provisions of The
British North America Act, 1867,
relating to the distribution of
legislative powers between the
Parliament of Canada and the
legislatures of the provinces, and,
owing to the very general language
in which some of these powers
are described, the question is one
of considerable difficulty. Their
Lordships propose to deal with it
before approaching the facts on
which the particular questions in
the actions depend. It will only
be necessary to premise that
‘ The Citizens’ Insurance Company
of Canada,’ the defendants in
the ﬁrst action, were originally
B.N.A. ACT, s. 92 (l3).——FIRE INSURANCE COYS.
259
incorporated by an Act of the late
province of Canada, 19 & 20 Vict.
c. 124., by the name of ‘The
Canada Marine Insurance Com-
pany.’ By another Act of the late
province, 2'7 85 28 Vict. c. 98.,
further powers, including the power
of effecting contracts of insurance
against ﬁre, were conferred on the
company, and its name changed to
‘The Citizens’ Insurance and In-
vestment Company’; and, ﬁnally,
by an Act of the Dominion Par—
liament, its name was again
changed to the present title, and
it was enacted, that, by its new
name, it should enjoy all the
franchises, privileges, and rights,
and be subject to all the lia-
bilities of the company under its
former name.
“The Queen Insurance com-
pany is an English ﬁre and life
insurance company incorporated
under the provisions of the Joint
Stock Companies Act of the Im-
perial Parliament, '7 85 8 Vict. c.
110. It has its principal oﬂice in
England, and carries on business
in Canada.
“ The defendant company in
each of the actions is the ap—
pellant.
“' The statute impeached by the
appellants, as being an excess of
legislative power, is an Act of the
legislature of the province of
Ontario (39 Vict. c. 24.), intituled
‘An Act to secure uniform Con-
ditions in Policies of Fire In-
surance.’
“ The preamble of the Act is as
follows :—
“ ‘ Whereas under the provisions
of an Act passed in the 38th year
of the reign of Her Majesty, in-
tituled ‘ An Act to amend the Laws
relating to Fire Insurances,’ the
Lieutenant-Governor issued a com-
mission to certain commissioners
therein named, requiring them to
consider and report what conditions
are just and reasonable conditions
to be inserted in ﬁre insurance
policies on real or personal property
in this province: And whereas a
majority of the said commissioners
have, in pursuance of the require-
ments of the said Act, settled and
approved of the conditions set
forth in the schedule to this Act;
and it is advisable that the same
should be expressly adopted by
the legislature as the statutory con-
ditions to be contained in policies
of ﬁre insurance entered into or in
force in this province: ’
“It enacts as follows :—
“-‘ 1. The conditions set forth in
the schedule to this Act shall, as
against the insurers, be deemed to
be part of every policy of ﬁre
insurance hereafter entered into, or
renewed, or otherwise in force in
Ontario, with respect to any pro-
perty therein, and shall be printed
on every such policy with the
heading ‘ Statutory Conditions,’
and if a company (or other insurer)
desire to vary the said conditions,
or to omit any of them or to add
new conditions, there shall be
added in conspicuous type, and in
ink of diiferent colour, words to
the following effect :—
Varz'atz'o'ns in Conditions.
“‘ This policy is issued on the
above statutory conditions, with
the following variations and ad-
ditions :—
“‘These variations (0?‘ as the
case may be) are, by virtue of the
()ntario statute in that behalf, in
force so far as, by the court or
judge before whom a question is
tried relating thereto, they shall be
held to be just and reasonable to
be exacted by the company.
“‘2. Unless the same is dis-
tinctly indicated and set forth in
the manner or to the effect afore-
said, no such variation, addition,
or omission shall be legal and
binding on the insured: and no
question shall be considered as to
whether any such variation, ad-
dition, or omission is, under the
circumstances, just and reasonable,
and on the contrary the policy
shall, as against the insurers, be
subject to the statutory conditions
CITIZENS’ IN-
SUR-ANCE C0. or
CANADA 1:. PAR-
sons, &c.
R2
260 B.N.A. ACT, s. 92 (13)._“ soon GOVERNMENT or."
CITIZENS’ IN- ‘
simmer: Co. or
CANADA 0. PAR-
sons, &0.
only, unless the variations, ad-
ditions, or omissions are distinctly
indicated and set forth in the
manner or to the effect aforesaid.
“‘3. A decision of a court or
judge under this Act shall be
subject to review or appeal to the
same extent as a decision by such
court or judge in other cases.’
“ The schedule contains twenty-
one conditions under the head
‘ Statutory Conditions.’ The fol-
lowing of them are material to the
particular questions to be decided
in the appeals :—
“ ‘ After application for in-
surance, it shall be deemed that
any policy sent to the assured is
intended to be in accordance with
the terms of the application, unless
the company shall, in writing,
point out the particulars wherein
the policy diﬂiers from the appli-
cation.’
“ ‘ 8. The company is not liable
for loss if there is any prior in-
surance in any other company,
unless the company’s assent thereto
appears therein, or is endorsed
thereon, nor if any subsequent in—
surance is effected in any other
company, unless and until the
company assent thereto by writ-
ing, signed by a duly authorized
agent.’
“‘ In the event of any other
insurance on the property herein
described having been assented to
as aforesaid, then this company
shall, if such other insurance re-
main in force, on the happening of
any loss or damage, only be liable
for the payment of a rateable pro-
portion of such loss or damage
without reference to the dates of
the different policies.’
“ ‘ 10. The company is not
liable for the losses following, that
is to say, among others :—
“ ‘ (g) The company is not
liable for loss or damage occurring
while petroleum,’ and various other
enumerated substances, ‘ or more
than 25 pounds’ weight of gun-
powder, are stored or kept in the
building insured, or containing the
property insured, unless permission
is given in writing by the com-
an .’ -
“ The distribution of legislative
powers is provided for by sections
91 to 95 of ‘The British North
America Act, 1867’; the most
important of these being section
91, headed ‘ Powers of the Parlia-
ment,’ and section 92, headed
‘ Exclusive Powers of Provincial
Legislatures.’
“ Section 91 is as follows :—
“ ‘It shall be lawful for the
Queen, by and with the advice and
consent of the Senate and House
of Commons, to make laws for the
peace, order, and good government
of Canada in relation to all matters
not coming within the classes of
subjects by this Act assigned ex-
clusively to the legislatures of the
provinces; and for greater eer-
tainty, but not so as to restrict the
terms of this section, it is hereby
declared that (notwithstanding an y-
thing in this Act) the exclusive
legislative authority of the Parlia-
ment of Canada extends to all
matters coming within the classes
of subjects next hereinafter enu-
merated, that is to say,—’
“ Then follows an enumeration
of 29 classes of subjects.
“ The section concludes as fol-
lows :—
“ ‘ And any matter coming with-
in any of the classes of subjects
enumerated in this section shall
not be deemed to come within the
class of matters of a local or pri-
vate nature comprised in the
enumeration of the classes of sub-
jects by this Act assigned exclu-
sively to the legislatures of the
provinces.’
“ Section 92 is as follows :—
“ ‘ In each province the legisla-
ture may exclusively make laws in
relation to matters coming within
the classes of subjects next herein-
after enumerated, that is to say,——’
“ Then follows an enumeration
of 16 classes of subjects.
“ The scheme of this legislation,
as expressed in the ﬁrst branch of
B.N.A. AcT, S. 92 (13).--PRE-EMINENCE OF DOM. PAR. 261
section 91, is to give to the Do-
minion Parliament authority to
make laws for the good govern-
ment of Canada in all matters not
coming within the classes of sub-
jects assigned exclusively to the
provincial legislature. If the 91st
section had stopped here, and if
the classes of subjects enumerated
in section 92 had been altogether
distinct and different from those in
section 91, no conﬂict of legisla—
tive authority could have arisen.
The provincial legislatures would
have had exclusive legislative power
over the 16 classes of subjects as-
signed to them, and the Dominion
Parliament exclusive power over
all other matters relating to the
good government of Canada. But
it must have been foreseen that this
sharp and deﬁnite distinction had
not been and could not be attained,
and that some of the classes of
subjects assigned to the provincial
legislatures unavoidably ran into
and were embraced by some of the
enumerated classes of subjects in
section 91 ; hence an endeavour
appears to have been made to pro-
vide for cases of apparent conﬂict;
and it would Seem that with this
object it was declared in the second
branch of the 91st section, ‘for
greater certainty, but not so as to
restrict the generality of the fore—
going terms of this section,’ that
(notwithstanding anything in the
Act), the exclusive legislative au~
thority of the Parliament of Canada
should extend to all matters coming
within the classes of subjects enu-
merated in that section. With the
same object, apparently, the para
graph at the end of section 91 was
introduced, though it may be ob-
served that this paragraph applies
in its grammatical construction
only to N o. 16 of section 92.
“ Notwithstanding this endea-
vour to give pre-eminence to the
Dominion Parliament in cases of a
conﬂict of powers, it is obvious that
in some cases where this apparent
conﬂict exists, the legislature could
not have intended that the powers
exclusively assigned to the provin-
cial legislature should be absorbed
in those given to the Dominion
Parliament. Take as one instance
the subject ‘ marriage and divorce,’
contained in the enumeration of
subjects in sec. 91 ; it is evident
that solemnization of marriage
would come within this general
description: yet ‘ solemnization of
marriage in the province ’ is enu-
merated among the classes of sub-
jects in sec. 92, and no one can
doubt, notwithstanding the general
language of sec. 91, that this sub-
ject is still within the exclusive
authority of the legislatures of the
provinces. So ‘ the raising of money
by any mode or system of taxation ’
is enumerated among the classes of
subjects in sec. 91; but, though
the description is sufficiently large
and general to include ‘ direct taxa-
tion within the province, in order
to the raising of a revenue for pro—
vincial purposes,’ assigned to the
provincial legislatures by sec. 92,
it obviously could not have been
intended that, in this instance also,
the general power should override
the particular one. \Vith regard
to certain classes of subjects, there-
fore, generally described in sec. 91,
legislative power may reside as to
some matters falling within the
general description of these sub-
jects in the legislatures of the pro-
vinces. In these cases it is the
duty of the Courts, however diffi-
cult it may be, to ascertain in what
degree, and to what extent, autho-
rity to deal with matters falling
within these classes of subjects
exists in each legislature, and to
deﬁne in the particular case before
them the limits of their respective
powers. It could not have been-
the intention that a conﬂict should
exist; and, in order to prevent
such a result, the language of the
two Sections must be read together,
and that of one interpreted, and,
where necessary, modiﬁed, by that
of the other. In this way it may,
in most cases, be found possible to
arrive at a reasonable and practical
CITIZENS’ IN-
SURANCE Co. or
CANADA '0. PAR-
soNs, &e.
262 B.N.A. ACT, s. 92 (13).—NARROW INTERPRETATION. '
CITIZENS’ IN-
SURANCE Co. OF
CANADA 1). PAR-
soNs, &C.]
construction of the language of the
sections, so as to reconcile the re-
spective powers they contain, and
give effect to all of them. In per-
forming this diﬁicult duty, it will
be a wise course for those on whom
it is thrown to decide each case
which arises as best they can, with-
out entering more largely upon an
interpretation of the statute than is
necessary for the decision of the
particular question in hand.
“ The ﬁrst question to be de-
cided is, whether the Act impeach-
ed in the present appeals falls
within any of the classes of sub-
jects enumerated in sec. 92, and
assigned exclusively to the legisla-
tures of the provinces; for if it
does not, it can be of no validity,
and no other question would then
arise. It is only when an Act of
the provincial legislature primal
facie falls within one of these
classes of subjects that the further
questions arise, viz., whether, not-
withstanding this is so, the subject
of the Act does not. also fall within
one of the enumerated classes of
subjects in sec. 91, and whether
the power of the provincial legisla-
ture is or is not thereby overborne.
“The main contention on the
part of the respondent was that the
Ontario Act in question had rela-
tion to matters coming within the
class of subjects described in No.
13 of sec. 92, viz., ‘Property and
civil rights in the province.’
The Act deals with policies of in-
surance entered into or in force in
the province of Ontario for insur-
ing property situate therein against
ﬁre, and prescribes certain con-
ditions which are to form part of
such contracts. These contracts,
and the rights arising from them,
it was argued, came legitimately
within the class of subject ‘ Property
and civil rights.’ The appellants,
on the other hand, contended that
civil rights meant only such rights
as ﬂowed from the law, and gave as
an instance the status of persons.
Their Lordships cannot think that
the latter construction is the correct
one. They ﬁnd no sufficient reason
in the language itself, nor in the
other parts of the Act, for giving so
narrow an interpretation to the
words ‘ civil rights.’ The words
are suﬁiciently large to embrace, in
their fair and ordinary meaning,
rights arising from contract, and
such rights are not included in any
of the enumerated classes of sub-
jects in sec. 91.
“It becomes obvious, as soon as
an attempt is made to construe the
general terms in which the classes
of subjects in sees. 91 and 92 are
described, that both sections and
the other parts of the Act must be
looked at to ascertain whether
language of a general nature must
not by necessary implication or
reasonable intendment be modiﬁed
and limited. In looking at sec. 91,
it will be found not only that there
is no class including, generally,
contracts and the rights arising
from them, but that one class of
contracts is mentioned and enumer-
ated, namely, ‘ 18, bills of exchange
and promissory notes,’ which it
would have been unnecessary to
specify if authority over all con-
tracts and the rights arising from
them had belonged to the Dominion
Parliament.
“The provision found in sec. 94
of the British North America Act,
which is one of the sections relating
to the distribution of legislative
powers, was referred to by the
learned counsel on both sides as
throwing light upon the sense in
which the words ‘ property and
civil rights’ are used. By that
section the Parliament of Canada
is empowered to make provision
for the .uniformity of any laws
relative to ‘ property and civil
rights’ in Ontario, Nova Scotia,
and New Brunswick, and to the
procedure of the Courts in these
three provinces, if the provincial
legislatures choose to adopt the
provision so made. The province
of Quebec is omitted from this
section for the obvious reason that
the law which governs property
B.N.A. ACT, S. 92 (13).—WHAT 1s A TRADE?
263
and civil rights in Quebec is in the
main the French law, as it existed
at the time of the cession of
Canada, and not the English law
which prevails in the other pro-
vinces. The words ‘ property and
civil rights ’ are, obviously, used in
the same sense in this section as in
No. 13 of sec. 92, and there seems
no reason for presuming that con-
tracts and the rights arising from
them were not intended to be in-
cluded in this provision for unifor-
mity. If, however, the narrow
construction of the words ‘ civil
rights,’ contended for by the appel-
lants, were to prevail, the Dominion
Parliament could, under its general
power, legislate in. regard to con-
tracts in all and each of the pro-
vinces, and, as a consequence of
this, the province of Quebec, though
now governed by its own civil code,
founded on the French law, as
regards contracts and their inci-
dents, would be subject to have
its law on that subject altered by
the Dominion Legislature, and
brought into uniformity with the
English law prevailing in the other
three provinces, notwithstanding
that Quebec has been carefully left
out of the uniformity section of the
Act.
“ It is to be observed that the
same words, ‘ civil rights,’ are em-
ployed in the Act of 14 Geo. 3.,
c. 83., which made provision for the
government of the province of
Quebec. Sec. 8 of that Act enacted,
that His Majesty’s Canadian sub-
jects within the province of Quebec
should enjoy their property, usages,
and other civil rights, as they had
before done, and that in all matters
of controversy relative to property
and civil rights, resort should be
had to the laws of Canada, and be
determined agreeably to the said
laws. In this statute the words
‘ property ’ and ‘ civil rights ’ are
plainly used in their largest sense;
and there is no reason for holding
that in the statute under discussion
they are used in a different and
narrower one.
“The next question for con-
sideration is whether, assuming the
Ontario Act. to relate to the subject
of property and civil rights, its
enactments and provisions come
within any of the classes of sub-
jects enumerated in sec. 91. The
only one which the appellants sug
gested as expressly including the
subject of the Ontario Act is No. 2,
‘the regulation of trade and com-
merce.’
“ A question was raised which
led to much discussion in the
courts below and at this bar, viz.,
whether the business of insuring
buildings against ﬁre was a trade.
This business, when carried on for
the sake of proﬁt, may, no doubt,
in some sense of the word, be called
a trade. But contracts of in-
demnity made by insurers can
scarcely be considered trading con-
tracts, nor were insurers who made
them held to be ‘traders’ under
the English bankruptcy laws;
they have been made subject to
those laws by special description.
\Vhether the business of ﬁre in-
surance properly falls within the‘
description of ‘a trade’ must, in
their Lordships’ view, depend upon
the sense in which that word is
used in the particular statute to be
construed ; but in the present case
their Lordships do not ﬁnd it neces-
sary to rest their decision on the
narrow ground that the business of
insurance is not a trade.
“ The words ‘ regulation of trade
and commerce,’ in their unlimited
sense, are sutﬁciently wide, if un-
controlled by the context and other
parts of the Act, to include every
regulation of trade ranging from
politi all arrangements in regard to
trade with foreign governments,
requiring the sanction of Parlia-
ment, down to minute rules for
regulating particular trades. But
a consideration of the Act shows
that the words were not used in
this unlimited sense. In the ﬁrst
place, the collocation of No. 2 with
classes of subjects of national and
general concern affords an indica-,
Crrrzms’ IN-
SURANCE Co. OF
CANADA v. PAR—
SONS, 8w.
264 B.N.A. ACT, s. 92 (13).——INTER-PROV. CONCERNS.
Crrrzlms’ IN-
SURANCE Co. or
CANADA '0. PAR-
sons, &0.
tion that regulations relating to
general trade and commerce were
in the mind of the legislature, when
conferring this power on the Do-
minion Parliament. If the words
had been intended to have the full
scope of which in their literal
meaning they are susceptible, the
speciﬁc mention of several of the
other classes of subjects enumerated
in sec. 91 would have been un-
necessary; as, 15, banking; l7,
weights and measures; 18, bills of
exchange and promissory notes;
19, interest; and even 21, bank-
ruptcy and insolvency.
“ ‘Regulation of trade and com-
merce’ may have been used in
some such sense as the words
‘ regulations of trade ’ in the Act
of Union between England and
Scotland (6 Anne, 0. 11.), and as
these words have been used in
other Acts of State. Article V. of
the Act of Union enacted that all
the subjects of the United King-
dom should have ‘full freedom and
intercourse of trade and navigation ’
to and from all places in the United
Kingdom and the Colonies; and
Article VI. enacted that all parts
of the United Kingdom from and
after the Union should be under
the same ‘ prohibitions, restrictions,
and regulations of trade.’ Parlia-
ment has at various times since the
Union passed laws affecting and
regulating speciﬁc trades in one
part of the United Kingdom only,
Without its being supposed that it
thereby infringed the Articles of
Union. Thus the Acts for regu-
lating the sale of intoxicating
liquors notoriously vary in the two
kingdoms. So with regard to Acts
relating to bankruptcy and various
other matters.
“ Construing therefore the words
‘ regulation of trade and com-
merce ’ by the various aids to their
interpretation above suggested, they
would include political arrange—
ments in regard to trade requiring
the sanction of Parliament, regula—
tion of trade in matters of inter-
provincial concern, and it may be
that they would include general
regulation of trade affecting the
whole Dominion. Their Lordships
abstain on the present occasion
from any attempt to deﬁne the
limits of the authority of the D0-
minion Parliament in this direction.
It is enough for the decision of the
present case to say that, in their
view, its authority to legislate for
the regulation of trade and com_
merce does not comprehend the
power to regulate by legislation
the contracts of a particular busi-
ness or trade, such as the business
of ﬁre insurance, in a single pro-
vince, and therefore that its legis-
lative authority does not in the
present case conﬂict or compete
with the power over property and
civil rights assigned to the Legis-
lature of Ontario by No. 13 of
sec. 92.
“Having taken this view of the
present case, it becomes unneces-
sary to consider the question how
far the general power to make regu-
lations of trade and commerce, when
competently exercised by the Do“
minion Parliament, might legally
modify or affect property and civil
rights in the provinces, or the legis—
lative power of the provincial legis-
latures in relation to those subjects;
questions of this kind, it may be
observed, arose and were treated of
of by this board in the cases of
L’Union St. Jacques de Montreal
22. Belisle [in Q. B. Quebec, 20 Sept.
1872, 20 L. C. J. 29; in P. C.
June 8, 1874, L. R. 6 P. C. 31;
31 L. T. 111 ; 22 W. R. 933; and
see ante, p. 84], and Cushing v.
Dupuy [in Q. B. Quebec, 22 March
1878; in P. C. April 15, 1880,
LB. 5 App. Cas. 409; 49 L. J.P.C.
63; 42 L. T. 445; and see ante,
p. 80].
“ It was contended, in the case
of the Citizens’ Insurance Company
of Canada, that the company having
been originally incorporated by the
Parliament of the late province of
Canada, and having had its incor-
poration and corporate rights con-
ﬁrmed by the Dominion Parlia-
B.N.A. AOT, S. 92 (13).—-GENERAL LAWS.
265
ment, could not be affected by an
Act of the Ontario Legislature.
But the latter Act does not assume
to interfere with the constitution or
status of corporations. It deals
with all insurers alike, including
corporations and companies, what-
ever may be their origin, whether
incorporated by British authority,
as in the case of the Queen Insur-
ance Company, or by foreign or
colonial authority, and without
touching their status, requires that
if they choose to make contracts of
insurance in Ontario, relating to
property in that province, such
contracts shall be subject to certain
conditions.
“It was further urged that the
Ontario Act was repugnant to the
Act of the late province of Canada,
which empowered the company to
make contracts for assurance
against ﬁre ‘ upon such conditions
as might be bargained for and
agreed upon between the company
and the assured.’ But this is, in
substance, no more than an ex-
panded description of the business
the company was empowered to
transact, viz., to make contracts of
assurance against ﬁre, and can
scarcely be regarded as inconsistent
with the speciﬁc legislation regard-
ing such contracts contained in the
Act in question.
“ It was further argued 011 the
part of the appellants that the On-
tario Act was inconsistent with the
Act of the Dominion Parliament,
38 Vict. c. 20., which requires ﬁre
insurance companies to obtain
licenses from the Minister of
Finance as a condition to their
carrying on the business of insur-
ance in the Dominion, and that it
was beyond the competency of the
provincial legislature to subject
companies who had obtained such
licenses, as the appellant companies
had done, to the conditions imposed
by the Ontario Act. But the legis-
lation does not really conﬂict or
present any inconsistency. The
statute of the Dominion Parliament
enacts a general law applicable to
the whole Dominion, requiring all
insurance companies, whether in-
corporated by foreign, Dominion,
or provincial authority, to obtain a
license from the Minister of Fi-
nance, to be granted only upon
compliance with the conditions
prescribed by the Act. Assuming
this Act to be within the compe-
tency of the Dominion Parliament
as a general law applicable ‘to
foreign and domestic corporations,
it in no way interferes with the
authority of the legislature of the
province of Ontario to legislate in
relation to the contracts which
corporations may enter into in that
province. The Dominion Act
contains the following provision,
which clearly recognises the right
of the provincial legislature to in-
corporate insurance companies for
carrying on business within the
province itself :—
“ ‘ But nothing herein contained
shall prevent any insurance com-
pany incorporated by or under any
Act of the legislature of the late
province of Canada or of any pro-
vince of the Dominion of Canada
from carrying on any business of
insurance within the limits of the
late province of Canada, 01' of such
province only according to the
powers granted to such insurance
company within such limits as
aforesaid, without such license as
hereinafter mentioned.’
“This recognition is directly
opposed to the construction sought
to be placed by the appellants’
counsel on the words ‘provincial
objects’ in N o. 11 of sec. 92,——
‘the incorporation of companies
with provincial objects,’ by which
he sought to limit these words to
‘public’ provincial objects, so as
to exclude insurance and commer-
cial companies.
“ Chief Justice Ritchie refers to
an equally explicit recognition of
the power of the provinces to in-
corporate insurance companies
contained in an earlier Act of the
Dominion Parliament (31 Vict.
c.1l8.) which was passed shortly
CITIZENS’ IN-
SURANCE Co. or
CANADA v. FAR-
SONS, &c.
266 B.N.A. ACT, s. 92 (13).—DENIAL or DOM.’S RIGHT.
CITIzENs’ IN-
rTsURANCE Co. or
" CANADA v. PAB-
soNs, -&c.
after the establishment of the
Dominion.
“ The learned Chief Justice [20
L. C. J. 29] also refers to a re-
markable section contained in the
Act of the Dominion Parliament
consolidating certain Acts respect-
ing insurance, 40 Vict. c. 42.
Sec. 28 of that Act is as follows :—
“‘This Act shall not apply to
any company within the exclusive
legislative control of any one of the
provinces of Canada, unless such
company so desires; and it shall
be lawful for any such company to
avail itself of the provisions of this
Act, and if it do so avail itself,
such company shall then have the
power of transacting its business of
insurance throughout Canada.’
“ This provision contains a dis-
tinct declaration by the Dominion
Parliament that each of the pro-
vinces had exclusive legislative
control over the insurance com-
panies incorporated by it, and
therefore is an acknowledgment
that such control was not deemed
to be an infringement of the power
of the Dominion Parliament as to
‘ the regulation of trade and com-
merce.’
“ The declarations of the -Do-
minion Parliament are not, of
course, conclusive upon the con-
struction of the British North
America Act; but when the
proper construction of the lan-
guage used in that Act to deﬁne
the distribution of legislative
powers is doubtful, the interpreta-
tion put upon it by the Dominion
Parliament in its actual legislation
may properly be considered.
. “The opinions of the majority
of the judges in Canada as summed
up by Chief Justice Ritchie, are in
favour of the validity of the On-
tario Act. In the present action,
the Court of Queen’s Bench and
the Court of Appeal of Ontario
unanimously supported its legality;
and the Supreme Court of Canada,
by a majority of three judges to
two, have afﬁrmed the judgment
of the provincial courts. The
opinions of the learned judges of
the Supreme Court are stated with
great fulness and ability, and clearly
indicate the opposite views which
may be taken of the Act, and the
diﬂiculties which surround any con-
struction that may be given to it.
“ Mr. Justice Taschereau, in
the course of his vigorous judg-
ment, sought to place the plaintiif
in the action against the Citizens’
Company in a dilemma. He
thinks that the assertion of the
right of the province to legislate
with regard to the contracts of
insurance companies amounts to a
denial of the right of the Dominion
Parliament to do so, and that this
is, in effect, to deny the right of
that Parliament to incorporate the
Citizens’ Company, so that the
plaintiff was suing a non-existent
defendant. Their Lordships can-
not think that this dilemma is
established. The learned judge
assumes that the power of the
Dominion Parliament to incorpo-
rate companies to carry on business
in the Dominion is derived from
one of the enumerated classes of
subjects, namely, ‘the regulation of
trade and commerce,’ and then
argues that if the authority to in-
corporate companies is given by
this clause, the exclusive power of
regulating them must also be given
by it, so that the denial of one
power involves the denial of the
other. But, in the ﬁrst place, it is
not necessary to rest the authority
of the Dominion Parliament to
incorporate companies on this
speciﬁc and enumerated power.
The authority would belong to it
by its general power over all mat-
ters not coming within the classes
of subjects assigned exclusively to
the legislatures of the provinces,
and the only subject on this head
assigned to the provincial legislature
being ‘the incorporation of com-
panies with provincial objects,’ it
follows that the incorporation of
companies for obj ects other than
provincial falls within the general
powers of the Parliament of Canada.
B.N.A. ACT, s. 92 (13).-OONDITIONS or INSURANCE. 267
But it by no means follows (unless
indeed the view of the learned
judge is right as to the scope of the
words ‘the regulation of trade and
commerce ’) that because the Domi-
nion Parliament had alone the
right to create a corporation to
carry on business throughout the
Dominion that it alone has the
right to regulate its contracts in
each of the provinces. Suppose
the Dominion Parliament were to
incorporate a company, with power,
among other things, to purchase
and hold lands throughout Canada
in mortmain, it could scarcely be
contended if such a company were
to carry on business in a province
where a law against holding land
in mortmain prevailed (each pro-
vince having exclusive legislative
power over ‘property and civil
rights in the province’) that it
could hold land in that province in
contravention of the provincial
legislation; and, if a company
were incorporated for the sole pur-
pose of purchasing and holding
land in the Dominion, it might
happen that it could do no business
in any part of it, by reason of all
the provinces having passed Mort-
main Act-s, though the corporation
would still exist and preserve its
status as a corporate body.
“ On the best consideration they
have been able to give to the argu-
ments addressed to them and to
the judgments of the learned
judges in Canada, their Lordships
have come to the conclusion that
the Act in question is valid.
“ Their Lordships have now to
consider separately the two appeals.
The Citizens’ Insurance Company
of Canada V. Parsons.
“ This company, whose incorpo-
ration has been already described,
has its head oﬂice in Montreal, and
carries on business in Ontario and
the other provinces of Canada.
‘ ‘ The respondent insured with the
company, through its local agent in
the town of Orangeville, Ontario,
a building situate in that town,
occupied as a hardware store, for
one year in $2,500, and, on the 4th
May 1877, a policy of the company
containing this insurance was issued
by the agent at Orangeville to him.
This policy was made subject to
the usual conditions of the com-
pany, which were endorsed on it.
The following is alone material :—
“ ‘ The assured must give notice
to this company of any other
insurance effected on the same pro-
perty, and have the same endorsed
on this policy, or otherwise acknow-
ledged by the company in writing,
and failure to give such notice
shall void this policy.’
“ ‘And this policy is made and
accepted under the conditions above
mentioned, which, are to be used
and resorted to in order to explain
the rights and obligations of the
parties hereto in all cases not herein
otherwise specially provided for.’
“ The conditions contained in
the Ontario Act were not printed
in the policy, nor was any refer-
ence made to them in it.
“On the 3rd August 1877 the
insured building was destroyed by
ﬁre. The respondent thereupon
brought the present action.
“ At the time the insurance was
made and the policy issued by the
Citizens’ Company, another insur-
ance had been effected on the same
building with the Western Assur-
ance Company, of which no notice
was given by the respondent to the
Citizens’ Company, nor was it en-
dorsed on or indicated in the policy,
nor did the acknowledgment or
assent of the Citizens’ Company
thereto in writing in any way
appear. These omissions consti-
tuted a breach not only of the
conditions endorsed on the policy,
but also of the condition in
relation to prior insurances con-
tained in the Ontario Act already
set out, and consequently, if either
of these conditions forms a part of
the contract between the parties,
the respondent’s action against the
company must fail. It is admitted
CITIZENS’ IN-
SURANCE Co. or
CANADA 0. PAR-
SONS, &c.
268 B.N.A. ACT, S. 92 (13).--STATUTORY CONDITIONS.
Crrrznivs’ IN—
SURANCE Co. or
CANADA 2). PAR-
SONS, &c.
that this is so, but it is contended,
on the part of the respondent, that
neither the agreed nor the statutory
conditions are binding upon him,
and that the contract of insurance
is subject to no conditions what-
ever. The courts of Canada have
sustained this contention.
“ The question turns on the con-
struction of the Ontario Act. It
is not disputed by the company that
the conditions endorsed on the
policy, which form the actual con-
tract between the parties, are, by
force of the statute, displaced, inas-
much as they are not shown to be
variations from the statutory con-
ditions in compliance with the pro-
visions of the Act. The question
to be decided is, whether the effect
of this non-compliance is to make
the contract subject to the statutory
conditions, or to reduce it to a bare
contract of insurance without any
conditions.
“ Sec. 1 enacts that ‘ the con-
ditions set forth in the schedule to
the Act shall, as against the insurers,
be deemed to be part of every
policy.’ Notwithstanding this ex-
press enactment, it is contended
that they are not to be so deemed,
unless they are printed on the
policy. The section no doubt goes
on to enact, but not in the form of
a proviso or condition, that the
conditions ‘ shall be printed on
every such policy with the heading
“ Statutory Conditions” ’; but it
does not enact that if there be an
omission so to print them they shall
not be deemed to be a part of the
contract. Printing the statutory
conditions is made a necessary
part of the mode prescribed by the
Act of showing variations from
them, and is unquestionably essen-
tial to the validity of any such
. variations, for the section further
enacts that if insurers desire to
vary the statutory conditions, or to
omit any of them, or to add new
conditions, ‘ there shall be added, in
conspicuous type, and in ink of
different colour, words to the
following effect :—
“ ‘ Variations in Conditions.
“‘T his policy is issued 011 the
above statutory conditions, with the
following variations and additions.’
“ Sec. 2 provides what may be
called a penalty for the non-obser-
vance of these last-mentioned pro-
visions. It enacts that unless dis-
tinctly indicated in the manner
prescribed ‘ no such variation, ad-
dition, or omission shall be legal
and binding on the insured,’ and,
‘ on the contrary ’—here follows
the consequence and penalty—-‘ the
policy shall, as against the insurers,
be subject to the statutory con-
ditions only.’ The effect of these
enactments in the present case is
that the conditions written on the
policy are not binding on the
insurer, either by virtue of the
actual contract, or as variations
from the statutory conditions, be-
cause they are not indicated to be
so in the manner prescribed by the
statute. Printing the statutory
conditions is a necessary part of
the manner prescribed for indicating
these variations, and the penalty
provided by the Act for not observ-
ing that manner is that the policy
becomes subject to the statutory
conditions. No provision is made
for the omission to print the statu-
tory conditions as a separate de-
fault; and their Lordships think,
looking at the object and scope of
the two sections, that in the absence
of an express enactment to that
eﬁect, it cannot be implied that the
intention of the legislature was that,
in a case where the company had
printed its own conditions, but had
failed to print the statutory ones,
the policy is to be deemed to be
without any conditions. Indeed,
such an implication would seem to
be opposed to the principle of the
Act, which is that, except in the
case of variations properly indicated,
the statutory conditions shall be
deemed to be part of every policy.
“It was further contended, and
the contention seems to have been
supported by some of the ridges,
B.N.A. ACT, s. 92 (13).--“AS
AGAINST INSURERS.” 269
that if the statutory conditions in
cases like the present are to be
deemed to be a part of the policy,
they form a part of the contract
only as against the insurers, and
are not binding on the assured.
Their Lordships cannot agree with
this construction of the Act. The
ﬁrst section of the Act, which de~
clares that the statutory conditions
shall be deemed to be part of every
policy of ﬁre insurance, also con~
tains the words ‘ as against the
insurers,’ and it is evident that these
words must have the same meaning
in both sections. If the construc_
tion put on them by the respondent
be correct, it would follow that in a
case where an insurance company
implicitly followed the direction of
the statute, and printed the statu-
tory conditions on its policies with-
out more, the conditions would still
be a part of the contract only as
against the company, and the
assured would not be bound by
them. Such a construction leads
to manifest absurdity, and to conse-
quences which the legislature could
not have intended. The preamble
of the Act shows that the con—
ditions were passed by the legisla-
ture as being ‘ just and reasonable.’
On looking at the twenty-one con-
ditions contained in the schedule, it
will be found, as might naturally
be expected, that they are all, with
a triﬂing exception, protective of
the insurers, though probably less
stringent than those usually im-
posed by the companies themselves.
They impose obligations not on the
insurers but the assured. To con-
strue the statute, therefore, as
enacting that these conditions are
binding only on the insurers for
whose protection they are intro-
duced into the contract, and not on
the assured by whom they are to
be performed, would be to affirm
that the legislature had used words
signifying in effect that the con-
ditions which it has declared shall
be a part of the contract shall not
be binding at all. But effect may
be given to the words in question
without resorting to such a con-
struction of them.
“Strong reasons would be re-
quired to show that the words ‘ as
against the insurers’ are used in
the second section in a different
sense from that in which they are
used in the ﬁrst, but none can be
suggested. The second section
provides as an alternative that un-
less the variations are shown in the
prescribed manner, the policy shall,
as against the insurers, be subject
to the statutory conditions only,
that is to say, the variations as
against the company shall not, and
the statutory conditions shall, avail.
If the respondent’s construction
were to prevail, though the conse-
quences under this section might
not be so manifestly absurd as in
the case already adverted to of a
company having simply printed the
statutory conditions without more,
it would still lead to much injustice;
for if a company in making varia-
tions, though in all other respects
complying with the statute, should
not use what might be thought
conspicuous type or ink of the
right colour, not only would the
variations it had attempted to make
be of no effect, but it could not
invoke the statutory conditions,
and the insured would be free from
any conditions whatever.
“ It may possibly have been in-
tended to give to the assured an
option, if he thought the company’s
conditions more favourable to him
than the statutory ones, to stand
upon the actual conditions; but it
could not have been intended, nor
does the language of the Act need
such a construction, that he should
be set free from both sets of con-
ditions. The meaning of the legis-
lation, though no doubt unhappily
expressed, appears to be that what-
ever may be the conditions sought
to be imposed by insurance com-
panies, no such conditions should
avail against the statutory con-
ditions, and that the latter should
alone be deemed to be part of the
policy, and resorted to by the
CITIZENS’ IN-
SURANCE Co. or
CANADA ‘v. PAR-
SONS, 8w.
270 B.N.A. ACT, S. 92 (13).—INTERIM PBoTEcTIoN.
CITIzENs’ IN-
SURANCE Co. or
CANADA '0. PAB-
soNs, &c.
insurers, notwithstanding any con-
ditions of their own, unless the
latter are indicated as variations in
the prescribed manner.
“Their Lordships being of
opinion that the policy in this case
became subject to the statutory
conditions, and there having been a
breach of those conditions, the
plaintiﬁ’s action against the Citi-
zens’ Insurance Company fails.
They will therefore humbly advise
Her Majesty to order that the
judgments appealed from be re-
versed, and that the rule obtained
by the company to set aside the
verdict and enter a nonsuit be made
absolute.
The Queen Insurance Company
v. Parsons.
“ This English corporation car-
ries on business at Orangeville
through an agent. On the 3rd
August 1877, the respondent ap-
plied to this agent to effect with
the company an insurance for
$2,000 on a general stock of hard-
ware and other goods contained in
the building in Orangeville, which
was the subject of insurance in the
other action, and a premium of $40
was agreed on.
“ An interim receipt was there-
upon given to the respondent by
the agent, which is in the following
terms :—
‘ Interim Receipt.
‘ Fire Department. Interim Pro-
tection Note.
‘ Queen Fire and Life Insurance
Company.
‘ Chief Ofﬁce, Queen Insurance
Buildings, Liverpool.
Canada Head Oﬁice, 191, St. James,
Street, Montreal.
‘ No. 33. .
‘ Orangeville Agency,
‘ 3rd August 187 7 .
‘ Mr. William Parsons, having
this day proposed to effect an insur-
ance against ﬁre, subject to all the
usual terms and conditions of this
company, for $2,000, on the fol-
lowing property in the town of
Orangeville, for 12 months, namely,
on general stock of hardware,
paints, oils, varnishes, window
glass, stoves, tinware, castings,
hollow ware, plated and fancy
goods, lamps, lamp glasses, and
general house furnishing goods.
‘And having also paid the sum
of $40 as the premium on the same,
it is hereby held assured under
these conditions until the policy is
delivered or notice given that the
proposal is declined by the com-
pany, when this interim note will
be thereby cancelled and of no
eﬁeet.
‘ (Signed) A. M. KIRKLAND,
‘ Agent to the Company.
‘ N.B.——The deposit will be re-
turned, less the proportion for the
period, on application to the agent
signing this note, in the event of
the proposal being declined by the
company. If accepted, a policy
will be prepared and delivered
within 30 days. If the holder
does not receive a policy during the
speciﬁed period, he should apply to
the head oﬁice in Montreal.’
“ A ﬁre happened on the same
day, before a policy had been de-
livered to the respondent.
“ The action was brought upon
the interim receipt. The declara-
tion which was framed upon it, as
originally drawn, set out the con-
ditions of the company as those to
which the insurance was declared
by the interim note to be subject.
It is agreed that the declaration
was afterwards amended by striking
out these conditions, though the
amendment does not appear on the
record.
“Having regard to the argu-
ments addressed to their Lordships,
it is only material to refer to one
of the company’s usual conditions,
the fourth, which provides, among
other things, that the company will
not be liable for any loss or damage
when more than 10 lbs. weight of
B.N.A. ACT, s. 92 (l3).—ASSURED ON CONDITIONS.
271
gunpowder is deposited or kept on
the premises, unless the same is
especially allowed in the body of
the policy, and suitable extra pre-
mium paid. This quantity of gun-
powder is smaller than that men-
tioned in the statutory condition
above out (39 Vict. (Ont.) c. 24;.
s. 10 ), which provides that the
company is not liable for loss or
damage occurring while, among
other things, more than 25 lbs.
weight of gunpowder are stored or
kept in the building containing the
property insured.
“ It is admitted that at the time
of the ﬁre gunpowder exceeding
10 lbs. in weight was kept in the
building destroyed by the ﬁre, and
the jury have found that the quan-
tity so kept was less than 25 lbs.
“ It is contended on the part of
the respondent that the contract
must, by force of the Ontario Act
in question, be treated as being
without any conditions ; or, if sub-
ject to any, to the statutory condi-
tions only.
“The judgment of their Lord—
ships in the other action has dis-
posed of the ﬁrst of these conten-
tions. The second raises the ques—
tion, whether the company’s own
conditions or the statutory condi-
tions are to be regarded as forming
part of the contract, and its answer
depends upon a consideration of
the further question, whether the
interim note is a policy of insurance
within the meaning of that term in
the Ontario Act.
“ This note is not a policy of in-
surance in the common understand-
ing of that word, and was certainly
not understood to be so by the
parties to it. It is expressly a
contract for a policy, making in~
terim provision until a policy is
. prepared and delivered. It contains
a proposal for insurance, which, if
accepted by the company, would
result in a policy to be based on
the terms of the proposal, and
issued by the company to the re-
spondent ; the company having an
option to decline the proposal, in
which case no policy would be de-
livered. The proposal thus offered
for acceptance is ‘ to effect an insur—
ance subject to all the usual terms
and conditions of this company,’
and pending the acceptance or
refusal of the company, and until
the policy is delivered or notice
given that the insurance is de-
clined, the property is ‘held as-
sured under “these conditions.”’
No doubt this last stipulation
forms a contract of insurance dur-
ing this interval; but the whole
agreement is preliminary only, and,
in substance, the note is a proposal
for a policy to be carried into
effect, if accepted, by the delivery
of a policy; as subsidiary thereto,
and for the convenience of the
person proposing to insure, im-
mediate protection is granted to
him. The practice of issuing in—
terim notes must have been well
known, and apt words might have
been found by the legislature to
describe them if they had been in-
tended to be included in the Act.
It may have been thought that it
would be a clog upon the business
of insurance, and would place ditﬁ-
culties in the way of obtaining
these interim protection notes, if
companies were obliged to prepare
them with all the fulness and for-
malities which the Act requires in
the case of policies.
“ Their Lordships, therefore, are
disposed to come to the conclusion
that the interim note in question is
not a policy of insurance within
the meaning of the Act. If in any
case it should appear that an in-
terim note or any like instrument
was intended by the parties to be
the complete and ﬁnal contract of
insurance, and that this shape was
given to the instrument for the
purpose of evading the Act, the
present decision would not be op-
posed to the instrument being
treated as a policy of insurance;
the ground of their present decision
being that the interim note in this
case is what it professes to be, pre~
liminary only to the issuing of
CITIZENS, IN-
SURANCE Co. or
CANADA v. PAR—
SONS, 8:0.
272
B.N.A. ACT, s. 92 (13) .—REMITTING ACTI‘ON..
CITIZENS’ IN-
SURANCE Co. or
CANADA v. PAR-
SONS, 8.20.
another instrument, viz., a policy,
which the parties bond ﬁde inten-
ded should be issued.
“ These interim protection notes,
given by ﬁre insurance companies,
hear an analogy to the ‘slips,’
commonly used in cases of marine
insurance, preliminary to the issu-
ing of policies. The slip contains
the heads of the contract, and is
in itself a contract of insurance,
though by the statute law of Eng-
land, passed for revenue pm‘poses,
it could not, until the recent Act
of 23 Vict. c. 23., be looked at by
a court of law for any purpose.
Since that Act, it may, for some
purposes, be given in evidence.
In a case in the Court of Queen’s
Bench in England, in which the
nature and effect of these slips
came under discussion, Mr. Justice
Blackburn says, ‘ As the slip is
clearly a contract for marine in-
surance, and as clearly is not a
policy, it is, by virtue of these en-
actments, not valid, that is, not
enforceable at law or in equity;
but it may be given in evidence
wherever it is, though not valid,
material.’
“What then are the conditions
of the contract which is the sub-
ject of this action? The interim
note contains a proposal by the
respondent to effect an insurance
on the company’s ‘ usual terms and
conditions,’ and the interim insur-
ance is made subject to these con-
ditions. If the contract of the
parties had come to be executed,
the company would perform it by
issuing a policy, subject to their
own conditions, if they could
legally do so. Indeed, if the as-
sured so required, it would be obli-
gatory on them to perform it in
this manner. In the view their
Lordships take of the Act in ques-
tion, the company might, conform-
ably with its enactments, issue a
policy with their own conditions,
provided that care was taken to
print the statutory conditions, and
show the variations from and the
additions to them which their own
conditions present, in the manner
prescribed. They think that it
ought to be presumed that the
company would thus perform their
contract when they came to issue a
policy; and this being so, that
their own conditions ought to be
read into the interim contract to
the extent to which they might law-
fully be made a part of the policy
when issued, by following the
directions of the statute, subject
always to the statutable condition
that they should be held to be just
and reasonable by the court or
judge.
“For these reasons, their Lord-
ships think that the judgment of
the Court of Queen’s Bench dis-
charging the appellants’ rule for
set-til'ig aside the verdict for the
plaintiifs, and the judgments aﬁirm-
ing it, ought to be reversed, but
their Lordships do not see their
way to decide the question which
now arises, and was not deter-
mined by the judge who tried the
action, or by any of the courts in
Canada, whether the company’s
condition with respect to the quan-
tity of gunpowder kept in the
building containing the property
insured is just and reasonable.
They think the rule nisi should
be kept open, and the action re-
mitted to the Court of Queen’s
Bench in order to the trial of this
question, with a direction that the
rule be disposed of according to
the decision that may be come to
upon it, and they will humbly ad-
vise Her Majesty to this effect.
“ The appellants, though success—
ful on other points, having failed
on the important question of the
validity of the Ontario statute, on
which special leave to appeal from
the judgment of the Supreme Court
was granted by this Board, their
Lordships think it right to make
no order as to the costs of these
appeals.”
REV. ROBERT DOBIE v. THE
BOARD for the management of
the PRESBYTERIAN CHURCH or
B.N.A. ACT, s. 92 (13).—CLERGY FUNDS.
273
CANADA in connection with the
Church of Scotland, et al. In Que-
bec Q. B. 19 June 1880, Sir A.
Dorion, C.J., M’Cord, J ., Ramsay,
J ., dissenting, aﬂirmed J etté, J.
(29 Dec. 1879), holding the Act
valid, 26 L. C. J. 170; in P. C.
Jan. 21, 1882, 17 App. Cas. 136;
51 L. J. P. C. 26; 46 L. T. 1.
Lord Watson delivered the follow-
ing judgment, reversing the decision
of the court below [there were also
present Lord Blackburn, Sir Barnes
Peacock, Sir Montague Smith, Sir
Robert P. Collier, Sir Richard
Couch, Sir Arthur Hobhouse]:
“The ﬁrst question raised in this
appeal is, whether the legislature
of the province of Quebec had
power, in the year 187 5, to modify
or repeal the enactments of a
statute passed by the Parliament of
the province of Canada in the year
1858 (22 Vict. c. 66.), intituled
‘ An Act to incorporate the Board
for the management of the Tem-
poralities Fund of the Presbyterian
Church of Canada in connection
with the Church of Scotland.’
“The fund, subject to the ad-
ministration of the Board consti-
tuted by the Act of 1858, consisted
of a capital sum of £127,448 58.
sterling, which was paid by the
Government of Canada under the
following circumstances. The min-
isters of the Presbyterian Church
of Canada, in connection with the
Church of Scotland, were entitled,
by virtue of certain Imperial stat-
utes, to an endowment or annual
subsidy out of the revenues derived
from colonial lands, termed clergy
reserves, and from moneys obtained
by the sale of portions of these
lands, supplemented, when neces-
sary, from the Exchequer of Great
Britain. But this connection be-
tween the Presbyterian Church and
the State was at length dissolved.
In 1853, an Act was passed by the
British Parliament (16 Vict. c. 21.),
authorizing the legislature of the
province of Canada to dispose of
the clergy reserves, and invest-
ments arising from sales thereof,
S 2340.
but reserving to the clergy the
annual stipends then enjoyed by
them, and that during the period
of their natural lives or incum-
bencies. In 1855, the legislature
of Canada, in exercise of the power
thus conferred, enacted that all
union between Church and State
should cease, and that those
ministers who were admitted to
ofﬁce after the 9th May 1853,
being the date of the Act, 16 Vict.
c. 21., should receive no allow-
ance from the Government. It
was, however, provided that the
rights of ministers entitled, at that
date, to participate in the State
subsidy, should be reserved entire,
power being given to the Governor-
General in Council to commute the
annual stipend payable to each in-
dividual so entitled for the capital
value of such stipend, calculated at
six per cent. on the probable life of
the annuitant.
“All the ministers interested
consented to accept the statutory
terms of commutation, and agreed
to bring the amounts severally
payable to them into one common
fund, to be settled for behoof of
the Presbyterian Church of Canada
in connection with the Church of
Scotland. In accordance with re-
solutions unanimously adopted by
the Church in Synod assembled on
the 11th January 1855, they fur-
ther agreed that the interest of the
fund should be devoted, in the ﬁrst
instance, to the payment of an
annual stipend of £112 10s. to
each commutor, and that the claim
next in order of preference should
be that of ministers then on the
roll, who had been admitted since
the 9th May 1853. The arrange-
ment thus effected was carried out
by eight commissioners duly ap-
pointed for that purpose, of whom
three were ministers and ﬁve were
laymen. They received payment
of the commutation moneys, to the
amount already stated; and in order
to provide for the management of
the fund thus obtained, the legisla-
ture of the province of Canada, upon
S
REV. ROBERT
DOBIE v. BoARD
or PRESBY-
TERIAN CHURCH.
274 B.N.A. ACT, 5. 92 (13).—-UNION oE CHURCHES.
REv. RoBERT
DoBIE 9. BOARD
oE PREsBY-
TERIAN CIIURCII.
the application of the commissioners,
passed the Act 22 Vict. c. 66.
“ By the ﬁrst clause of the Act
in question, the commissioners were,
along with four additional members
and their successors, declared to be
a body politic and corporate, by the
name of the ‘ Board for the man-
agement of the T emporalities Fund
of the Presbyterian Church of Can-
ada in connection with the Church
of Scotland’; and the funds held
by them as commissioners were
vested in the Board ‘in trust for
the said Church,’ subject to the
condition that the annual interest
thereof should remain chargeable
with the stipends and allowances
payable to the parties ‘entitled
thereto, in terms of the arrange—
ment under which the fund was
contributed by the commuters. It
was enacted that, at the ﬁrst meet-
ing of Synod held after the passing
of the Act, three commissioners,
one minister, and two laymen,
should retire from the Board, and
that seven new members, consisting
of four ministers and three laymen,
should be elected by the Synod.
The Board thus reconstituted was
composed of six ministers and six
laymen, and it was provided that
at each annual meeting of the
Synod held thereafter two min-
isters and two laymen were to re-
tire by rotation, and that four new
members, two clerical and two lay,
should be elected in their stead.
It was expressly enacted that all
members of the Board should also be
members of the Presbyterian Church
of Canada in connection with the
Church of Scotland; and provision
was made for ﬁlling up vacancies
occasioned by the death or resigna-
tion of a member, by his removal
from the province of Canada, or by
his leaving the communion of the
said Church.
“In the year 1874, serious pro-
posals had been made for an incor-
porative union between the Pres-
byterian Church of Canada in
connection with the Church of
Scotland, the Canada Presbyterian
Church, the Church of the Mari-
time Provinces in connection with
the Church of Scotland, and the
Presbyterian Church of the Lower
Provinces. The old Parliament of
the province of Canada had by this
time been abolished, and its legis-
lative power had been distributed
between the two provincial legisla-
tures of Ontario and Quebec, and
the new Parliament of the Domi-
nion of Canada, under the provi-
sions of the ‘ British North Ame-
rica Act, 1867.’ With the view
of facilitating the contemplated
union of the Churches, an Act of
the legislature of Quebec was passed
in February 1875 (38 Vict. c. 62.),
in order to remove any obstruction
which might arise from the form
and designation of the several
trusts or acts of incorporation by
which the property of the churches
was held and administered. By
the 11th section of that Act, it was
provided that, in the event of union
taking place, the members then
constituting the Board for manage-
ment of the Temporalities Fund,
under the Act of 1858, should re-
main in oﬁice, and pay over the
revenue to the persons previously
entitled to it; that any revenue not
required for that purpose should
pass to and be subject to the dis-
posal of the united church; and
that any part of the fund remaining
after satisfying the claim of the
last survivor of those entitled should
belong to the Supreme Court of the
United Church, and be applied to
the aid of weak congregations. It
was by the same clause enacted
that vacancies occurringin the Tem-
poralities Fund Board should not be
ﬁlled up in the manner theretofore
observed, but should be ﬁlled up
in the manner provided by another
Act of the Quebec Legislature.
“ This last-mentioned statute
(38 Vict. c. 64.), which received
the assent of the Governor-General
in .Council upon the same day as
the preceding, was passed with the
professed object of amending the
Act of the Parliament of the pro-
B.N.A. Aer S. 92 (13).—ONTARIO & eUEBEc GLERGY. 275
vince of Canada, 22 Vict. c. 66.
It was thereby enacted that, from
the time when the union was
effected, the annual allowances to
which they were previously entitled
were to be continued by the Tem-
poralities Board to ministers and
probationers then on the roll of the
Presbyterian Church of Canada in
connection with the Church of
Scotland, and these were to be paid,
so far as necessary, out of the
capital of the fund, and that any
surplus of revenue or capital, after
satisfying these charges, should be
at the disposal of the united church.
Ministers and probationers of the
church, interested in the temporali-
ties fund, who might decline to
become parties to the union, were,
however, to retain all rights pre-
viously competent to them until
the same lapsed or were ex-
tinguished. The constitution of
the board of management was
altered by the third and eighth
clauses of the Act. The third
clause is in these terms :——‘ As
often as any vacancy in the board
for the management of the said
temporalities fund occurs, by death,
resignation, or otherwise, the bene-
ﬁciaries entitled to the beneﬁt of
the said fund may each nominate a
person, being a minister or member
of the said united church, or, in the
event of there being more than one
vacancy, then one person for each
vacancy, and the remanent mem-
bers of the said board shall there-
upon, from among the persons so
nominated as aforesaid, elect the
person or number of persons
necessary to ﬁll such vacancy or
vacancies, selecting the person or
persons who may be nominated by
the largest, number of beneﬁciaries,
but in the event of failure on the
part of the beneﬁciaries to nominate
as aforesaid, the remanent members
of the board shall ﬁll up the vacancy
or vacancies from among the minis-
ters or members of the said united
church.’ The eighth clause enacts
that the third section shall con-
tinue in force until the number of
beneﬁciaries is reduced below
ﬁfteen, upon which occurrence the
board is to be continued by the
remanent members ﬁlling up vacan-
cies from among the ministers or
members of the united church. By
the tenth section it was declared
that the Act should come into force
as soon as a notice was published
in the Quebec Ofﬁcial Gazette to
the effect that the union had been
consummated, and that the articles
of union had been signed by the
moderators of the respective
churches.
“ On the 14th day of June 1875
the Synods of the four churches
met at Montreal, and in each a
resolution was carried in favour of
union. In the Synod of the Pres-
byterian Church of Canada in con-
nection with the Church of Scot-
land it was resolved, by a very large
majority of its members, that the
four churches should be united and
form one assembly, to be known
as ‘The General Assembly of the
Presbyterian Church in Canada,’
and that the united church should
possess the same authorities, rights,
privileges, and beneﬁts to which
the Presbyterian Church in Canada
in connection with the Church of
Scotland was then entitled, except-
ing such as had been reserved by
Acts of Parliament. The minority,
which consisted of the appellant, the
Rev. Robert Dobie, and nine other
members, dissented from the action
of the Synod, and protested that
they, and those who might choose
to adhere to them, remained and
still constituted the Presbyterian
Church of Canada in connection
with the Church of Scotland.
“On the 15th June 1875 the
majority of the Synod of the Pres-
byterian Church of Canada in con-
nection with the Church of Scot-
land, and the Synods of the other
uniting churches, met in general
assembly, when the Articles of
Union were signed by the modera-
tors of each of the four churches;
and thereupon one of the modera-
tors, with the consent and concur-
REV. ROBERT
DoBIE 2'. BOARD
or PRESBY-
TERIAN CnUEcn.
s2
276 B.N.A. ACT, s. 92 (13).—COMPETENCY OF PROV. ACT.
REV. ROBERT
DOBIE 1:. BOARD
OF PREsBY-
'I‘ERIAN CuURcn.
rence of the rest, declared the four
churches to be united in one church,
represented by that its ﬁrst general
assembly, to be designated and
known as ‘ The General Assembly
of the Presbyterian Church in
Canada.’ Notice of the union
having been thus consummated
was duly published in the Quebec
Oﬂicial Gazette.
“ After publication of the notice
the constitution of the board for
managing the temporalities fund
was altered, and the fund adminis-
tered, in conformity with the pro-
visions of the Quebec Act, 38 Vict.
c. 64. In December 187 8 the Rev.
Robert Dobie, who, with the other
members of the protesting minority
of 187 5, and their adherents, main-
tains that they alone represent
and constitute the Presbyterian
Church of Canada in connection
with the Church of Scotland, insti-
tuted, by petition to the Superior
Court for Lower Canada, the pro-
ceedings in which the present ap-
peal has been taken. The leading
conclusions of the petition are to
have it adjudged and declared (1)
that the Legislature of Quebec had
no power to alter the constitution
of the board or the purposes of the
trust created by the Canadian Act,
22 Vict. c. 66., and consequently
that the administration of the trust
as carried on in terms of the pro-
vincial Act of 1875 is illegal; (2)
that the protesting minority of the
Synod of 187 5, and its adherents,
are now the Presbyterian Church
of Canada in connection with the
Church of Scotland, and that cer-
tain ministers of the united church
who were members of the majority
had, by reason of the union, for-
feited all right to participate in the
beneﬁts of the temporalities fund;
and , to have an injunction
against the board, as then consti-
tuted, acting in prejudice of the
rights of the appellant, and others
beneﬁcially interested in the statu-
tory trust of 1858. Upon the 31st
Dec. 187 8 the appellant’s appli-
cation was heard before Mr. ‘Justice
J etté, who made an order for sum-
moning the respondents, and also
issued an interim injunction, which
the learned judge dissolved, after
fully hearing both parties, on the
31st Dec. 1879, and at the same
time dismissed the appellant’s peti-
tion, with costs. This decision was,
on appeal to the Court of Queen’s
Bench for Lower Canada, aﬁirmed,
in accordance with the opinions
of the majority of the judges.
“ The judgments of Mr. Justice
J etté in the court of ﬁrst instance
[Superior Court, 27 L. C. J. 170
et seq.], and of Chief Justice
Dorion and Mr. Justice Monk in
the Court of Queen’s Bench, are
based exclusively upon the compe-
tency of the Quebec Legislature to
pass the Act, 38 Vict. c. 64., and the
consequent validity of that statute.
On the other hand, Mr. Justice
Ramsay and Mr. Justice Tessier
were of opinion that the appellant
was entitled to an injunction on the
ground that the Act, 38 Vict. c. 64.,
was invalid, and that the majority
of the Presbyterian Church of
Canada in connection with the
Church of Scotland had no power
to communicate any interest in the
temporalities fund of that church
to the religious bodies with whom
they had chosen to unite themselves
in 1875. Mr. Justice M’Cord
was of opinion, with his brethren
Ramsay and Tessier, J J ., that the
Act of the Legislature of Quebec
was ultra cires, but he held that
the majority of the Presbyterian
Church of Canada in connection
with the Church of Scotland had
undoubted power to admit into that
church, as members of it, the three
religious bodies with whom they
had entered into union. Conse-
quently, the learned justice, though
differing in opinion from his
brethren Dorion, C.J., and Monk,
J ., agreed with them in result.
“ Whether the Legislature of
Quebec had power to pass the Act,
38 Vict. c. 64., is the question ﬁrst
requiring consideration, because, if
it be answered in the aﬁirmative,
B.N.A. Ac'r, S. 92 (13).- CO-EXTENSIVE POWERS. 277
the case of the appellant entirely
fails. The determination of that
question appears to their Lordships
to depend upon the construction
of certain clauses in the British
North America Act, 1867 . There
is no room in the present case for
the application of those general
principles of constitutional law,
which were discussed by some of
the judges in the courts below, and
which were founded on in argu-
ment at the bar. There is really
no practical limit to the authority
of a supreme legislature except the
lack of executive power to enforce
its enactments. But the Legisla-
ture of Quebec is not supreme; at
all events, it can only assert its
supremacy within those limits
which have been assigned to it by
the Act of 1867 .
“ The Act of the Parliament of
the province of Canada, 22 Vict.
c. 66., was, after the passing of the
British North America Act, 1867 ,
continued in force within the pro-
vinces of Ontario and Quebec, by
virtue of sec. 129 of the latter
statute, which, inter alia, enacts
that, except as therein otherwise
provided, all laws in force in Canada
at the time of the union thereby
effected shall continue in Ontario
and Quebec as if the union had not
been made. But that enactment is
qualiﬁed by the provision that all
such laws, with the exception of
those enacted by the Parliaments
of Great Britain, or of the United
Kingdom of Great Britain and
Ireland, shall be subject ‘to be
repealed, abolished, or altered by
the Parliament of Canada or by
the legislature of the respective
province, according to the authority
of the Parliament or of that legis-
lature under this Act.’ The powers
conferred by this section upon the
provincial legislatures of Ontario
and Quebec to repeal and alter the
statutes of the old Parliament of
the province of Canada, are made
precisely co-extensive with the
powers of direct legislation with
which these bodies are invested by
I
the other clauses of the Act of 1867 .
In order, therefore, to ascertain
how far the provincial legislature
of Quebec had power to alter and
amend the Act of 1858, incorporat-
ing the board for the management
of the temporalities fund, it becomes
necessary to revert to sees. 91 and
92 of the British North America
Act, which enumerate and deﬁne
the various matters which are
within the exclusive legislative
authority of the Parliament of
Canada, as well as those in relation
to which the legislatures of the re-
spective provinces have the exclu-
sive right of making laws. If it
could be established that in the
absence of all previous legislation
on the subject the Legislature of
Quebec would have been authorized
by sec. 92 to pass an Act in terms
identical with the 22 Vict. c. 66.,
then it would follow that the Act
of the 22nd Vict. has been validly
amended by the 38 Vict. c. 64. On
the other hand, if the Legislature
of Quebec has not derived such
power of enactment from sec. 92,
the necessary inference is that the
legislative authority required, in
terms of sec. 129, to sustain its
right to repeal or alter an old law
of the Parliament of the province
of Canada, is in this case wanting,
and that the Act, 38 Vict. c. 64.,
was not intm m'res of the legisla-
ture by which it was passed.
“The general scheme of the
B. N. A. Act, 1867, and, in par-
ticular, the general scope and effect
of secs. 91 and 92 have been so
fully commented upon by this
board in the recent cases of The
Citizens’ Insurance Company of
Canada '0. Parsons, and The
Queen Insurance Company v. Par~
sons [4 S. C. R. 215; in P. C. 26
Nov. 1881, 7 App. Cas. 96; 51 L.
J. P. C. 11; 45 L. T. 721; see
above], that it is unnecessary to say
anything further upon that subject.
Their Lordships see no reason to
modify in any respect the princi-
ples of law upon which they pro-
ceeded in deciding those cases; but
REV. RoBER-r
OBIE v. BOARD
or PREsBY-
TERIAN CHURCH.
2'78 B.N.A. ACT, S. 92 (13).--INTERFERING WITH DOM.
REV. Romm'r
DoBIE 1). BOARD
OF PRESBY-
TERIAN CHURCH.
.in determining how far these prin-
ciples apply to the present case, it
is necessary to ‘consider to what ex-
tent the circumstances of each case
are identical or similar.
“ The case of The Citizens’ In-
surance Company of Canada '0.
Parsons comes nearest in its cir-
cumstances to the present, as in that
case the appellant company was in-
corporated by, and derived all its
statutory rights and privileges from,
an Act of the province of Canada,
whereas The Queen Insurance
Company was incorporated under
the provisions of the British Joint
Stock Companies Act, 7 and S Vict.
c. 110. In both cases the validity
of an Act of the Legislature of
Ontario was impeached on the
ground that its provisions were
ultra wires of a provincial legisla-
ture, and were not binding unless
enacted by the Parliament of
Canada. It was contended on
behalf of the Citizens’ Insurance
Company that the statute com-
plained of was invalid in respect
that it virtually repealed certain
rights and privileges which they
enjoyed by virtue of their Act of
incorporation. That contention
was rejected, and the decision in
that case would be a precedent
fatal to the contention of the appel-
lant, if the provisions of the Ontario
Act, 39 Vict. c. 24., and the Quebec
Act, 38 Vict. c. 64., were of the
same or substantially the same
character. But upon an examina-
tion of these two statutes, it be-
comes at once apparent that there
is a marked diiference in the
character of their respective enact-
ments. The Ontario Act merely
prescribed that certain conditions
should attach to every policy,
entered into or in force, for insuring
property situate within the pro-
vince against the risk of ﬁre.
It dealt with all corporations, com-
panies, and individuals alike who
might choose to insure property in
Ontario—it did not interfere with
their constitution or status, but
required that certain reasonable
conditions should be held as inser-
ted in every contract made by them.
The Quebec Act, 38 Vict. c. 64.,
on the contrary, deals with a single
statutory trust, and interferes di-
rectly with the constitution and
privileges of a corporation created
by an Act of the province of
Canada, and having its corporate
existence and corporate rights in
the province of Ontario as well as
in the province of Quebec. The
professed object of the Act, and the
effect of its provisions, is not to im-
pose conditions on the dealings of
the corporation with its funds
within the province of Quebec, but
to destroy, in the ﬁrst place, the
old corporation, and create a new
one, and, in the second place, to
alter materially the class of persons
interested in the funds of the cor-
poration.
“ According to the principles
established by the judgment of this
board in the cases already referred
to, the ﬁrst step to be taken with
a view to test the validity of an Act
of the provincial legislature is to
consider whether the subject-matter
of the Act falls within any of the
classes of subjects enumerated in
sec. 92. If it does not, then the
Act is of no validity. If it does,
then these further questions may
arise, namely, ‘ whether, notwith-
standing that it is so, the subject
of the Act does not also fall within
one of the enumerated classes of
subjects in sec. 91, and whether
the power of the provincial legisla-
ture is or is not thereby overborne.’
“Does then the Act 38 Vict. c. 64.
fall within any of the classes enu-
merated in sec. 92, and thereby
assigned to the provincial legisla-
tures? Their Lordships are of
opinion that it does not; and con-
sequently that its enactments are
invalid, and that the constitution
and duties of the board for man-
aging the temporalities fund must
still be regulated by the Act of 1 858.
“ It was contended for the re-
spondents that the Quebec Act of
187 5 is Within one or more of these
\
B.N.A. AcT, s. 92 (13).-MATTERs NOT DIVISIBLE. 279
three classes of subjects enume-
rated in sec. 92 :—
‘ (7 The establishment, main-
tenance, and management
of hospitals, asylums,
charities, and eleemosy-
nary institutions in and
for the province other
than marine hospitals.’
‘ (11.) The incorporation of com-
panies with provincial
objects.’
‘ (13.) Property and civil rights
in the province.’
“The most plausible argument
for the respondent was founded
upon the terms of class (13), but
it has failed to satisfy their Lord-
ships that the statute impeached by
the appellant is a law in relation to
property and civil rights within the
province of Quebec.
“ The Quebec Act of 1875 does
not, as has already been pointed
out, deal directly with property or
contracts affecting property, but
with the civil rights of a corpora-
tion, and of individuals, present or
future, for whose beneﬁt the cor-
poration was created and exists.
If these rights and interests were
capable of division according to
their local position in Ontario and
Quebec respectively, the legislature
of each province would have power
to deal with them so far as situate
within the limits Of its authority.
If, by a single Act of the Domi-
nion Parliament, there had been
constituted two separate corpora-
tions, for the purpose of working,
the one a mine within the province
Of Upper Canada, and the other a
mine in the province of Lower
Canada, the Legislature of Quebec
would clearly have had authority
to repeal the Act so far as it re-
lated to the latter mine and the cor-
poration by which it was worked.
“ The Quebec Act 38 Vict. c. 64.
does not profess to repeal and
amend the Act of 1858, only in so
far as its provisions may apply to
or be operative Within the province
of Quebec, and its enactments are
apparently not framed with a view
to any such limitation. The reason
is obvious, and it is a reason which
appears to their Lordships to be
fatal to the validity of the Act.
The corporation and the corporate
trust, the matters to which its pro-
visions relate, are in reality not
divisible according to the limits of
provincial authority. In every
case where an Act applicable to
the two provinces of Quebec and
Ontario can now be validly re-
pealed by one of them, the result
must be to leave the Act in full
vigour within the other province.
But, in the present case, the legis-
lation of Quebec must necessarily
affect the rights and status of the
corporation as previously existing
in the province of Ontario, as well
as the rights and interests of indi-
vidual corpora-tors in that province.
In addition to that, the fund ad-
ministered by the corporate board,
under the Act of 1858, is held in
perpetuity for the beneﬁt of the
ministers and members of a church
having its local situation in both
provinces, and the proportion of
the fund and its revenues falling
to either province is uncertain and
ﬂuctuating, so that it would be im—
possible for the Legislature of
Quebec to appropriate a deﬁnite
share of the corporate funds to
their own province without trench-
ing on the rights of the corpora-
tion in Ontario.
“ These observations regarding
class (13) apply with equal force
to the argument of the respon-
dents founded on classes (7) and
(11). Even assuming that the
temporalities fund might be cor-
rectly described as a ‘ charity ’ Or
as an ‘ eleemosynary institution,’ it
is not in any sense established,
maintained, or managed ‘in or for ’
the province of Quebec; and if
the board, incorporated by the Act
of 1858, could be held to be a
‘ company ’ within the meaning of
class (11), its objects are certainly
not provincial.
“ The respondents further main-
tained that the Legislature of
REV. ROBERT
DOBIE v. BOARD
or PREsBv-
TERIAN CHURCH.
280
B.N.A. ACT, s. 92 (13).--JUNGTA JUVANT.
REV. ROBERT
DoBm 2). BOARD
or PREsBY-
TERIAN Carmen.
Quebec had power to pass the Act
of 187 5, in respect of these special
circumstances, (1) that the domi-
cile and principal otﬁce of the
Temporalities Board is in the city
of Montreal; and (2) that its funds
also are held or invested within the
province of Quebec. These facts
are admitted on record by the ap-
pellant, but they do not affect the
question of legislative power. The
domicile of the corporation is
merely forensic, and cannot alter
its statutory constitution as a board
in and for the provinces of Upper
Canada and Lower Canada. Neither
can the accident of its funds being
invested in Quebec give the legisla-
ture of that province authority to
change the constitution of a cor-
poration with which it would other-
wise have no right to interfere.
When funds belonging to a cor-
poration in Ontario are so situated
or invested in the province of
Quebec, the Legislature of Quebec
may impose direct taxes upon them
for provincial purposes, as autho-
rized by sec. 92 (2), or may impose
conditions upon the transfer or re-
alization of such funds; but that
the Quebec Legislature shall have
power also to conﬁscate these funds,
or any part of them, for provincial
purposes, is a proposition for which
no warrant is to be found in the
Act of 1867.
“ Last of all it was argued for
the respondents that, assuming the
incompetency of either provincial
legislature, acting singly, to inter-
fere with the Act of 1858, that
statute might be altered or repealed
by their joint and harmonious
action. The argument is based
upon fact, because, in the year
187 4, the Legislature of Ontario
passed an Act (38 Vict. c. 75.),
authorizing the union of the four
churches, and containing provisions
in regard to the temporalities fund
and its board of management, sub-
stantially the same with those of
the Quebec Act (38 Vict. c. 62.)
already referred to. It is diﬂicult
to understand how the maxim
jnncta juva-nt is applicable here,
seeing that the power of the pro-
vincial legislature to destroy a law
of the old province of Canada is
measured by its capacity to recon-
struct what it has destroyed. If
the Legislatures of Ontario and
Quebec were allowed jointly to
abolish the board of 1858, which
is one corporation in and for both
provinces, they could only create in
its room two corporations, one of
which would exist in and for On-
tario and be a foreigner in Quebec,
and the other of which would be
foreign to Ontario but a domestic
institution in Quebec. Then the
funds of the Ontario corporation
could not be legitimately settled
upon objects in the province of
Quebec, and as little could the
funds of the Quebec corporation
be devoted to Ontario, whereas the
temporalities fund falls to be ap-
plied either in the province of
Quebec or in that of Ontario, and
that in such amounts or propor-
tions as the needs of the Presby-
terian Church of Canada in con-
nection with the Church of Scot-
land, and of its ministers and
congregations, may from time to
time require. The Parliament of
Canada is, therefore, the only legis-
lature having power to modify or re-
peal the provisions of the Act of 1 858.
“ On the assumption that the
Legislature of Quebec had not
power to alter the provisions of the
Act 22 Vict. c. 66., the respondents
still maintain that the appellant
cannot prevail in the present action,
in respect that he has not sufficient
interest to entitle him to sue, and
that, even if he has such interest,
he is barred from challenging the
Act of 1875 by the resolutions of
the majority of the Synod, which
are said to be binding upon him.
“As regards the ﬁrst of these
objections, it is true that the ap-
pellant’s right to an annuity from
the temporalities fund is reserved
in its integrity by the Act which
he impugns, and his own pecuniary
interests are, therefore, not affected
B.N.A. ACT, s. 92 (13).—-CHURCHMEN 8t PRECEDENTS. '28].
by its provisions. But the appel-
lant is not a mere annuitant, and
his right to an annual allowance
does not constitute his only con-
nection with the fund. He is like—
wise one of the commutors,—-one
of the persons by whom the fund
was contributed for the purposes of
the Act 22 Vict. c. 66.—and in
that capacity he has a plain inte-
rest, and consequent right, to insist
that the fund shall be administered
in strict accordance with law.
“ The second objection is derived
from the resolutions in favour of
union carried by the majority of
the Synod of the Presbyterian
Church of Canada, in connection
with the Church of Scotland, upon
the 14th June 1875. The Quebec
Act (38 Vict. c. 64.) deals with the
temporalities fund in conformity
with these resolutions; and it is
the contention of the respondents
that the appellant is bound by the
resolutions, and cannot, therefore,
impeach the statute which gives
effect to them. That is a startling
proposition. If the Legislature of
Quebec was incompetent to enact
the statute of 1875, it is not easy
to understand how the Synod could
have power, either directly or in-
directly, to validate that Act, or to
set aside the enactments of 22 Vict.
c. 66. The respondents do not,
indeed, allege that the Synod was
possessed of legislative powers, but
they assert that the majority, by
resolving that the fund, settled
under the Act 22 Vict. c. 66., should
in future be administered according
to a scheme inconsistent with the
provisions of that Act, bound all
its members to acquiesce in that
new course of administration, and
to abstain from enforcing the
statute law of the land. It may
be doubted whether a court of law
would sustain such an obligation,
even if it were expressly under-
taken; but it is unnecessary to dis-
cuss that point, because their Lord-
ships are of opinion that the re-
spondents have failed to establish
that the appellant, as a member of
the Presbyterian Church in con-
nection with the Church of Scot-
land, undertook any obligation to
that effect.
“ Whether the appellant is bound,
as alleged by the respondents, is, in
this case, a question relating exclu-
sively to civil rights, and must,,there-
fore, be dealt with as matter of con-
tract between him and the Synod or
church of which he was admittedly
a member at the time when the
resolutions in favour of union were
carried. In the case of a non-
established Presbyterian Church,
its constitution, or in other words
the terms of the contract under
which its members are associated,
are rarely embodied in a single
document, and must, in part at
least, be gathered from the pro-
ceedings and practice of its judi-
catories. Every person who be-
comes a member of a church so
constituted must be held to have
satisﬁed himself in regard to the
proceedings and practice of its
courts, and to have agreed to sub-
mit to the precedents which these
establish. The respondents were,
therefore, justiﬁed in referring to
the minutes of the Synod from 1831
to 187 5, for the purpose of showing
the extent of the power vested in
majorities by the constitution of
the church. The minutes, which
were founded upon by counsel for
the respondents, afford abundant
evidence to the effect that, in all
matters which the Synod was com-
petent to deal with and determine,
the will of the majority as ex-
pressed by their vote was binding
upon every member of the Synod,
a proposition which the appellant
did not dispute. But they contain
nothing whatever to show that, in
cases where the administration of
church property was regulated by
statute, the Synod ever asserted its
right to set aside that legal course
of administration, and to restrain
dissentient members from challeng~
ing any departure from it.
“ Their Lordships are, therefore,
of opinion that the appellant is en-
REv. ROBERT
DOBIE 0. BOARD
OF PRESBY-
TERIAN Cnuacu
282 B.N.A. ACT, s. 92 (13).--GOVERNMENT DEPOSITS.
Rnv. ROBERT
DOBIE v. BoARD
or PRESBY-
TERIAN Cnuncn.
titled to have it declared that, not-
withstanding the provisions of the
Quebec Act of 1875, the constitu-
tion of the board and the administra-
tion of the temporalities fund are
still governed by the Canadian Act
of 1858, and that the respondent
board is not duly constituted in
terms of that Act; and also to
have an injunction restraining the
respondents from paying away or
otherwise disposing of either the
principal or income of the fund.
“The appellant, in his applica-
tion to the court below, asks a
declaration to the effect that the
fund in question is held by the re-
spondents, ‘in trust, for the beneﬁt
of the Presbyterian Church of
Canada, in connection with the
Church of Scotland, and for the
beneﬁt of the ministers and mis-
sionaries who retain their connec-
tion therewith, and who have not
ceased to be ministers thereof, and
for no other purpose whatever.’ It
is obviously inexpedient to make
any declaration of that kind. It
would be a mere repetition of the
language of the Act of 1858, by
which the trust is regulated, and
would decide nothing as between
the parties to the present suit.
“ The appellant also seeks to have
it declared that six reverend gentle--
men who, at and prior to the
Union of 1875 were members of
the Presbyterian Church of Canada
in connection with the Church of
Scotland, have ceased to possess
that character, and that they have
no right to the beneﬁts of the tem~
poralties fund; and he concludes
for an injunction against the re-
spondent corporation making any
payment to them. Their Lordships
are of opinion that these are
matters which cannot be compe-
tently decided in the present action.
Their decision depends upon the
answer to be given to the question,
which church or aggregate of
churches is now to be considered
as being or representing the Presby-
terian Church of Canada in con-
nection with the Church of Scot-
Act 22 Vict. c. 66 ?
land, within the meaning of the
But the two
churches which appear from the
record to have rival claims to that
position are not represented in this
action; and, of the six ministers
Whose pecuniary interests are as-
sailed by the appellant, he has only
called one, the Reverend Dr. Cook,
as a respondent. That question
between the churches must be de-
termined somehow before a consti-
tutional board can be elected; and,
unless the Dominion Parliament
intervenes, there will be ample
opportunity for new and protracted
litigation. It cannot be determined
now, because the appellant has not
asked any order from the Court in
regard to the formation of the new
board, and has not made the indi-
viduals and religious bodies in-
terested parties to this cause.
“ Substantial success being with
the appellant, he must have his
costs as against the respondents.
But their Lordships are of opinion‘
that neither the respondents own
costs, nor those in which they are
found liable to the appellant, ought
to come out of the trust fund, which
they are holding and administering
without legal title. The appellant’s
costs must therefore be paid by
the members of the respondent
corporation as individuals.
“ Their Lordships will, accord-
ingly, humbly advise Her Majesty
that the judgments under appeal
ought to be reversed, and that the
cause should be remitted to the
Court of Queen’s Bench, Lower
Canada, with directions to that
court to give effect to the decla-
rations recommended by this Board,
and also to issue in the appellant’s
favour an injunction and decree
for costs as directed by this
Board.”
EXCHANGE BANK or CANADA
v. THE QUEEN. In the Q.'B.
Quebec, 2 April 1885, 1 Mon.
Q. B. 302, in which Court Monk,
Ramsay, and Baby, JJ. [Dorion,
C.J., dissenting], reversed two de-
B.N.A. ACT, s. 92 (l3).—CROWN PRIVILEGE. .
283
cisions of Mathieu, J., Dec. 1, 1884,
in the Superior Court, in which he
rejected the claim of the Govern-
ment, otherwise the Queen, to be
paid by right of prerogative a sum
of money, the amount of a Govern-
ment deposit in the Exchange
Bank, which had gone into liqui-
dation. The decision of the ma-
jority, delivered by Ramsay, J., of
the Q. B. Quebec, was reversed in
the P. C., 18 Feb. 1886; ll App.
Cas. 157; 55 L. J. P. C. 5;
54 L. T. 802; 30 L. C. J. 194.
[See full judgment below] The
following facts are taken from the
judgment of Dorion, C.J., the dis-
senting judge in the Q. B. Quebec,
1 Mon. Q. B. 302; and P. C.
Printed Papers, p. 137 :—-“ In Sept.
1883, the Exchange Bank of
Canada was put in liquidation
under the provisions of the Act
45 Vict. (Dom.) c. 23., and A.
Campbell, F. B. Mathews, and
T. Darling were appointed liqui-
dators. On 15 March 1884, the
Attorney-General for the province
of Quebec ﬁled with the liqui-
dators, in the name of the Queen, a
claim against the estate for the sum
of 357 5,000, being the amount
of a deposit made with the bank
8 Sept. 1883, and demanded
that the payment of principal and
interest be paid by privilege out of
the assets of the bank. L. H.
Massue, one of the respondents, and
a creditor for a sum of $20,000,
deposited with the bank 7 Feb.
1883, and the Merchants’ Bank,
another creditor for a sum of
$3,050, as holder of unredeemed
bills issued by the Exchange Bank,
having contested the privilege
claimed by Her Majesty to be
paid her claim by preference to
other creditors out of the assets to
be distributed to the liquidators,
on 10 March 1884, the Attorney-
General for the Dominion of Canada
ﬁled another claim on behalf of
Her Majesty for a sum of
$237,840.27, of which $200,000
were for two loans of $ 100,000 each
made by the Government of Canada
to the Exchange Bank, at the rate
of 5 per cent. per annum, and
$37,840.27 were for an ordinary
deposit, and he also demanded that
the last claim in principal and
interest be paid by privilege and
preference over the other creditors
out of the assets of the bank.
Massue, the Merchants’ Bank, and
Wilmer C. Wells, another creditor
of the Exchange Bank, have con-
tested the privilege claimed by
Her Majesty for the payment of
the last claim. The liquidators
have been made parties to these
proceedings, but have taken no
part in the action. There are no
difficulties about the facts. The
several claims made by the parties
are admitted, as well as their origin.
The only disputed points are—
1st, Whether the claim of the
Crown on behalf of the Dominion
of Canada and of the province of
Quebec, and which will absorb a
large portion of the assets of
the insolvent Exchange Bank, are
to be paid ﬁrst, and in preference
to all the ordinary creditors of the
bank; 2nd, \Vhether they are to
be paid in preference to the Mer-
chants’ Bank’s claim for unredeemed
bank bills, which by the Banking
Act, 43 Vict. (Dom.) c. 22. s. 12,
is declared in case of insolvency
to be a ﬁrst charge on the assets of
bankrupt. The court below held
that the Government of the pro-
vince of Quebec and the Dominion
Government were mere ordinary
creditors, having no privilege to be
paid by preference. From this
judgment two appeals have been
instituted, one on behalf of the
province of Quebec, and the other
on behalf of the Dominion of
Canada, but both in the name of
Her Majesty. The appellants
(respondents in Privy Council)
claim to have a privilege—1st,
By virtue of the rights and prero-
gatives of the Crown as they ex-
isted at the time this country was
ceded to Great Britain, and which
had then become part of the public
law of the land; 2nd, By virtue of
EXCHANGE
BANK OF CAN—
ADA 'v. THE
QUEEN.
2841 B.N.A. ACT, s. 92 (13).—“COMPTABLES ” TECHNICAL.
EXCHANGE
BANK or CAN-
ADA v. THE
QUEEN.
the civil law in force in this
country; 3rd, Under the provisions
of art. 611 of the Code of Civil
Procedure. The ﬁrst part on which
the appellants relied has already
been decided in the cases of Attor-
ney-General 2). Black, Stuart’s
Repts. 324; Monk 1). Ouimet, 22
Dec. 1874, Q. B. Quebec, 19
L. C. J. 71; and Ouimet '0. Man
chand, 20 March 1874, Sup. Ct.,
5 Rev. Légale, 361. In these
several cases it has been uniformly
held that the claims and privileges
of the Crown against its debtors
did not form part of the higher or
essential prerogatives of the Crown,
which had become part of the
public law of the land when the
country was ceded to Great Britain,
and that they are governed by the
law in force in the province relating
to civil matters. In addition to
the uniform jurisprudence of our
courts on this point, we may add
that the rule has been repeatedly
recognised and acted upon by the
legislation of the province. By
the arts. 6, 1989, 1994, 2032, 2086,
of the Civil Code, and by the
several statutes referred to in art.
607 of the Code of Civil Proce-
dure, the privileges and hypothecs
of the Crown on moveable and im-
moveable property of its debtors
have been determined and regu-
lated, and these several provisions
of our law which were in force
when the B. N. A. Act was passed
were continued in force by the
129th section of this Act. The pre-
rogatives of the Crown have, there-
fore, nothing to do with the ques-
tion. Privileges on moveable pro-
perty are general when they attach
to the whole of the moveable pro-
perty of the debtor, and specially
when they only affect some parti-
cular objects (art. 1993, and last
paragraph of art. 1994, C. C.).
There are only two articles in the
Civil Code which have a special
reference to the privileges of the
Crown. The ﬁrst is art. 1989,
which refers, in general terms, to
the special privileges secured to the
Crown by the laws relating to
customs, duties, and the other dis-
positions contained in the special
statutes concerning matters of
public administration. The other,
art. 1994, which, after providing
that the several privileges therein
enumerated shall take precedence
in the order they are given, men-
tions 10 classes of privileges on
moveable property, the 10th and
last being ‘for the claims of the
Crown against persons accountable
for its moneys.’ In the French
version the words are, ‘ La Cou-
ronne pour créances contre ses
comptables.’ The word ‘comp-
table,’ as applied to the debtors of
the Crown, has in the French law
a technical meaning. It is used to
describe the particular oﬁicers who
had the collection and management
of the Crown revenues, and were
accountable for the same [‘ Nouveau
Dénisart, Vo. Comptable’]. In
France the king had a privilege on
all the property of his comptables
for any balance of moneys for which
they were accountable as such
(Edit of 1669); but the privilege
did not apply to other claims of
the Crown. This is clearly estab-
lished in the following passages of
the ‘Nouveau Dénisart, Vo. Comp-
table,’ s. 3, No. 11, wherein the
authors of that valuable collection
say, ‘ No. 11. 11 me faut pas confon-
dre les créances que le Roi exerce
contre un comptable en qualité de
comptable avec les créances person-
nelles qu’il peut avoir contre le
meme particulier. Par arrét du
14 May 1748, le Conseil a jugé
entre le controleur des bons d’état
et les fermiers généraux que ceux-
ci doivent étre payés des sommes
diies par le Sieur Bouvelais, receveur
du tabac a Paris, pour reliquat de
compte de sa recette, sur le prix
provenant de la vente de ses effets,
par privilege et préférence au Roi,
créancier du meme Bouvelais a
cause d’un prét fait 5. cc particulier
pour favoriser l’entreprise de la ver-
rerie de Sevre.’ The controleur des
bons d’état represented the claim
B.N.A. ACT, s. 92 (l3).--INTERPRETATION or CODES. 285
of the king, while the fermiers
généraux exercised their claim as
cessionnaires of the duties on to-
bacco, which duties constituted a
privileged claim. This same arret
is also cited in the work known as
‘ Old Dénisart, V0. Comptable,’ with
somewhat greater developments. It
is evident, that it is in the sense
attributed to it in the French law,
that the word ‘ Comptable ’ has
been used in art. 1994 of the Civil
Code, which is not given as new
law, but as being in accordance with
the rules and principles which pre-
vailed before the code as to the
causes of preference which give rise
to privileges among creditors. By
this last article the privilege of the
Crown, when not coming within
the class of special privileges men-
tioned in art. 1989, was restricted,
as it was before the code, to claims
arising out of the collection or
management of the revenues of the
Crown by ‘ Comptables,’ that is
by such persons as were account-
able for the same, and it did not
apply to claims for loan of money,
or deposits, or claims founded upon
ordinary contracts. This privi-
lege, which is a general privilege
affecting all the moveables of the
Comptables, was placed the last in
the order of preference, among the
other general privileges, and this is
the rank which it always held in
the French legislation [Pothier,
Proc. Civile, ed. Bugnet, p. 226,
2d al.; Troplong, Priv. and Hyp.
No. 39]. There being no other
article in the code, nor any other
provision of law allowing to the
Crown a general privilege, except
this article 1994 of the Civil Code,
the second pretension of the appel-
lant, that under the civil law, as ex-
isting in this country, the Crown is
entitled to be paid by privilege the
amount of its claims out of the
assets of the Exchange Bank, is
without any foundation. The 3rd
and last proposition urged on
behalf of Her Majesty is, that
under art. 611 of the Code of Civil
Procedure, all the claims of the
Crown, whatever may be their
nature or origin, are privileged,
and should be paid in preference to
all other creditors. This article
provides that, ‘In the absence of
any special privilege, the Crown
has a preference over chirographic
creditors for sums due to it by the
defendant.’ It is unfortunate that
terms so vague and so general have
been used in connection with this
difficult subject. The simple
reading of this article suggests im-
portant difficulties, and shows that
it is most ambiguous. Is it, in the
absence of any special privilege
whatsoever, or only in the absence
of any special privilege of the
Crown, that the Crown has a prefer-
ence over chirographic creditors?
Does that preference exist over all
chirographic creditors, whether they
have privilege or not P And, lastly,
does the preference exist only for
sums due by a defendant, and is
there no preference where, as in
this case, there is no defendant '3”
After citing Guyot, Vo. Chiro-
graphaire, s. 7, his Lordship con-
tinued : “ Is, then, the preference to
be given to the claims of the Crown
under art. 61 1 to supersede all other
privileges, even those which from
the remotest period have been with
us considered sacred, such as the
privileges for funeral expenses and
of physicians, and of servants’
wages ? I am glad to ﬁnd we are
all agreed on this, that the words
‘ chirographic creditors ’ in this par-
ticular do not apply to all chiro-
graphic creditors, but only to the
ordinary chirographic creditors who
have no privileged claims. We are
also all of opinion the word ‘de-
fendant ’ in this article is to be in-
terpreted as meaning the debtor
of the claim of the Crown, whether
such debtor be a defendant or not.
“ All this shows that this short
article is not a very clear one, and
that, to make sense of it, the process
of interpretation must be applied
to it to a considerable degree, for
however obscure or insufficient a
law may be, we cannot refuse to
EXCHANGE
BANK or CAN-
ADA v. THE
QUEEN.
286
B.N.A. AcT, S. 92 (13).—HISTORY or conEs.
EXCHANGE
BANK or CAN-
ADA v. THE
QUEEN.
adjudicate [art 11. C. C.], and it is
our duty to interpret a doubtful or
ambiguous law so as to fulﬁl the
intention of the legislature, and to
obtain the object for which it was
passed [art. 12. C. C.]. Another
rule of interpretation applying to
the Civil Code and the Code of Civil
Procedure as laid down by the Lords
of the Privy Council in Carter '0.
Molson, April 18, 1883, 8 App.
Cas. 530; 52 L. J. P. C. 46;
49 L. T. 83, is that, although
the Code of Civil Procedure has
come into force later (_ 10 months)
than the Civil Code, the two form
part of one general system, and
must stand and be construed
together, as if they formed but one
code. The object of the Civil
Code is to ﬁx the rules and princi-
ples by which the rights of indi-
viduals are to be determined: that
of the Code of Civil Procedure is to
establish the rules for the exercise
of those rights before the courts of
justice. Therefore, whenever a
provision is found in the Civil Code,
the intention of the legislature,
must necessarily have been thereby
to confer or determine a right, and
when it is found in the Code of
Civil Procedure, the intention must
have been to provide a remedy for
enforcing rights, and not to alter
existing, rights or to confer addi-
tional ones. There is an incident
with reference to this art. 611
bearing upon the intention of the
legislature which has some signiﬁ
cance. The code was prepared
under a statute, which authorized
the commissioners to embody in
the Code of Civil Procedure for
Lower Canada all the laws then in
force in the province relating to
procedure in civil matters and cases,
and to suggest such amendments as
they thought desirable, with their
reasons, and to report to the
Governor. C. S. L. C. c. 2.
secs. 5, 6, 8. The code so prepared
was submitted to the legislature
and adopted with such amendments
as were thought necessary, and
referred back to the commissioners,
under the statute 29 & 3O Vict.
c. 25., to incorporate the amend-
ments with the code, the commis-
sioners being authorized to alter
the numbering of titles and ar-
ticles of the code or their order,
to correct any error, whether of
commission or of omission, or any
contradiction or ambiguity, in the
original roll, but without changing
its eﬁ’ect, which Roll so corrected,
being signed by the Governor and
countersigned by the provincial
secretary or assistant, and deposited
with the clerk of the Legislative
Council, would become law as
the Code of Civil Procedure of
Lower Canada, from a day to be
ﬁxed by proclamation. When the
statute was passed, the provision,
now comprised in art. 611, was
neither in the original Roll nor in
the amendments adopted by the
legislature. It was when the com-
missioners were embodying in the
original Roll the amendments
adopted by the legislature, and
making the necessary corrections
under the authority they had re-
ceived by statute, that art. 611 was
introduced into the code. It cannot
be said that the legislature intended
to alter, not only the provisions of
the Code of Civil Procedure, but
also those of the Civil Code, by an
addition made under these circum-
stances, and of which it knew
nothing, nor is it conceivable that
the commissioners themselves, in
direct contravention of the instruc-
tions they had received, not only to
alter the eﬁect of the code as
adopted by the legislature, should
have intentionally destroyed the
whole economy of art. 1994 of the
Civil Code on privileges, by intro-
ducing into the Code of Civil Pro-
cedure a disposition foreign to its
object, and creating a most extra-
ordinary and important privilege in
favour of the Crown. The absence
of any intention to change the law
in the manner it is pretended it
was changed by art. 611 is made
more manifest, if possible, by the
fact that on the very day that the
B.N.A. AeT, s. 92 (13).-—OROWN & OTHER eREDs.
287
legislature adopted the Code of Civil
Procedure and its amendments
and directed the commissioners to
make no correction which would
alter its eﬁect, it passed a statute,
the 29 8t 30 Vict. c. 43., by which it
abolished the privileges attached to
the claims of the Crown in Upper
Canada, and in that respect placed
the claims of the Crown on the
same footing as those of private
individuals. This is, perhaps, an
unimportant circumstance, but still
it is another instance that the legis_
lature could have no intention to
extend by the Code of Civil Proce-
dure the privileged claims of the
Crown established by the Civil
Code.” His Lordship then said
there were several articles in both
codes on this very question of
privilege which bore intrinsic evi-
dence that there was no intention
of limiting or extending by the
Code of Civil Procedure the privi-
leges established by the Civil Code,
and referred to art. 2008 of Civil
Code and art. 605 of the Code of
Civil Procedure. “ Apart from the
question of intention, which, ac-
cording to our art. 12. C. C., is the
primary and controlling rule of
interpretation of our laws, is there
anything in art. 611 to repeal or
supersede the privileges of the
Crown against its Comptables, and
to substitute another and more ex-
tended principle in its place? As
we have already seen, the two codes
must be construed together, and by
placing in juxtaposition the several
articles of both referring to the
privileged claims of the Crown, we
shall be able to arrive at their exact
meaning. The ﬁrst of these articles
is 1989, which, in general terms,
refers to statutes creating special
privileges in favour of the Crown.
Art. 607 of the Code of Civil Pro-
cedure completes the article by
enumerating the subjects to which
these statutes refer. Then art. 1994
C.’ C. confers on the Crown a
general privilege over all the pro-
perty of the Comptables. By
adding to this article the provi-
sions of art. 611 of the Code
of Civil Procedure, the two will
read as follows :-—Art. 1994. C. C.
‘ The claims which carry a privilege
upon moveable property are the
following, and when several of them
come together they take precedence
in the following order, &c. :—
10. The claims of the Crown
against persons accountable for its
moneys.’ Art. 611. C. C. P. ‘In
the absence of any special privi-
lege the Crown has a preference
over chirographic creditors for sums
due to it by the defendant.’ The
meaning of these two several arti-
cles is that the Crown, by art. 1989,
has special privileges affecting par-
ticular property, which, according
to art. 607, are to be paid by
preference over all other creditors
on the property subject to them.
The art. 1989 establishes the right,
and art. 607 the rank. Then
art. 1994 gives to the Crown a
general privilege against its Comp-
tables, that is a privilege attaching
to all the property of its Comptables,
which in its order comes after all
the other privileged claims; and
art. 611, which is a mere rule of
procedure, a direction to the officers
of the court how to distribute the
moneys levied (see title of the sec-
tion and paragraph in which it is
placed) , says: ‘In the absence of any
special privileges (that is in the
case that the Crown has no special
privilege, for if it had any its claim
should, according to arts. 1989 and
607, be paid out of the proceeds of
the property, subject to such special
privileges in preference to all other
creditors) the Crown has no prefer-
ence over chirographic creditors
(that is the ordinary chirographic
creditors) for sums due to it by the
defendant’ (that is by the debtor
of a privileged debt under art.
1994). My reading of these com-
bined articles concerning the privi-
leged claims of the Crown is that,
when the Crown has a special
privilege, its claim shall, according
to art. 607, be paid by preference
to all other creditors (which terms
EXCHANGE
BANK OF CAN-
ADA v. THE
QUEEN.
288
B.N.A. A01‘, 8. 92 (13).-—FRENCH LAW.
EXCHANGE
BANE or CAN-
ADA v. THE
QUEEN.
may have again to be limited in
certain contingencies not occurring
in the present case), and that when
the Crown has no special privilege,
its other privileged claims, that is
those mentioned in art. 1994, shall
be paid in preference to those of
the ordinary chirographic creditors.
Eﬁect is thus given to the provi-
sions of both codes according to
their respective objects and to the
intention of the legislature.” His
Lordship then cited, Troplong, Des
Privileges and Hypotheques, Nos.
64, 65 ; and Portalis’ Discours Pré-
liminaire sur le Code Civil, 1 st Locré,
p. 264, No. 17, and p. 265, and
continued: “I am therefore of
opinion the Crown has no priority,
preference, or privilege to be paid
out of the assets of the Exchange
Bank before the ordinary creditors
of the Bank; and that they
should all be paid pari pass/n,
in proportion to the amount of
their respective claims, and that
the judgment of the courts below
should be afﬁrmec .” As stated
above, Monk, Ramsay, and Baby,
J J ., were for allowing the claim.
EXCHANGE BANK OF CANADA
AND OTHERS 'v. THE QUEEN, from
the Court of Queen’s Bench. The
following judgment was delivered
by Lord Hobhouse [there being
also present Lord Fitzgerald, Lord
Monkswell, and Sir Richard Couch;
see reference, ante, p. 282] :—
“The sole ultimate question in
this case is whether the Crown,
being an ordinary creditor of the
Bank which has been put in liqui-
dation, is entitled to priority of
payment over its other ordinary
creditors. That again depends on
the question how the two codes of
Lower Canada are to be construed.
Their Lordships think it clear, not
only that the Crown is bound by
the codes, but that the subject of
priorities is exhaustively dealt with
by them, so that the Crown can
claim no priority except what is
allowed by them. If so, the other
points which have been elaborately
treated both in the colony and here
are only of subsidiary importance,
though undoubtedly they have a
bearing on the construction of the
codes.
“ Their Lordships are also clear
that the law relating to property in
the province of Quebec or in Lower
Canada, from 1774 to 1867, when
the codes came into force, must be
taken to be the ‘ Coutume de Paris,’
except in such special cases as may
be shown to fall under some other
law. Probably such was the true
effect of the statute 14 Geo. 3.
c. 83., but at all events there has
been an uniform current of deci-
sion to that effect in the colony,
dating back forty years or so be-
fore the date of the codes, which
ought not now to be questioned.
“The next question is whether
the French law gave to the king
a priority in respect of all his debts,
or in respect only of those due
from ‘ Comptables.’ There does
not seem to have been any difference
of opinion on the point in the
colony. The three judges who de-
cided for the Crown upon the ulti-
mate question, and the two judges
who decided the other way, all
thought that the priority given by
the French law extended only to
‘ Comptables.’ And in the appel-
lants’ case ﬁled on the appeal from
Mr. Justice Mathieu it is elabor-
ately argued that the English law
and not the French prevailed in
Lower Canada, but it is never
suggested that the priority now
claimed could be claimed under
the French law. That suggestion,
however, has been made upon this
appeal to Her Majesty, and has been
strongly contended for at the bar.
“ The matter rests wholly upon
the French authorities, and it ap-
pears to their Lordships that the
passage cited from Pothier (see
Record, pp. 82, 83) is conclusive of
the question unless it can be con-
tradicted or explained away. It is
not conceivable that the advisers of
Louis XIV. should, if an unlimited
priority existed, address themselves
B.N.A. ACT, s. 92 (.13).-BASIS or CODES.
289
to the exact deﬁnition by edict of
a limited priority, or that Pothier
should comment on that edict, all
without any reference to the more
sweeping rule. But so far from
being contradicted or explained
away, the passage in question is
supported and emphasized by later
authorities. There is the case re-
ported by Sirey, 1843, p. 369
(Record, p. 83) showing one limit
of the king’s priority, namely,
that his right against ‘Compt-
ables ’ did not extend even to pur-
veyors who might have been paid
in advance. There are the autho-
rities cited in the note to that case,
who all draw the distinction be-
tween the one kind of Crown
debtor and the other. There is the
authority of the Nouveau Dénisart,
Vo. Comptables, expressly (hawing
the distinction between the official
debts of the ‘ Comptable ’ and his
private debts due to the king, and
the case of the Sieur Bouvelais, 14
May 1748, which illustrates that
distinction (Record, p. 139).
“If the priority contended for
existed in the French law, there
could be no difficulty in producing
authority to that effect. English
text-books and reports abound with
assertions of the king’s prerogative
as we know it. But absolutely no
authority was produced in the
colony in opposition to the decision
of Mr. Justice Mathieu, and now
nothing is produced except the
work of a Counsellor of State
writing in the year 1632.
“Taking the French law to be
as laid down by the whole of the
judges below, the next question is,
what is the proper construction of
art. 1994 of the Civil Code? And
the only difﬁculty in it when con-
sidered alone arises from the use of
the expressions ‘ses comptables’
and ‘persons accountable for its
moneys.’ Here again we have
complete accord among the judges
in the colony, that the expressions
indicate not all the debtors of the
Crown, but a limited class of such
debtors, known to French lawyers
$12340.
’
under the name of ‘Comptables.
The strongest expression of opinion
to that effect is uttered by the
judges who decided in favour of
the Crown. That opinion, however,
is earnestly combated in this appeal.
“ That the word ‘ Comptables ’
is a technical term of French law,
denoting officers who receive and
are accountable for the king’s re-
venues, has been abundantly shown
from the law treatises cited at the
bar. It has not been shown that
in legal documents the word is ever
used in the general sense of ‘ debtor’
or ‘person responsible.’ It stands
in the code as it is likely a term of
art would stand, as a noun sub-
stantive, which explains itself to
lawyers by itself, and does not re-
quire the addition of any explana-
tory words, such as in the English
version are found necessary because
there is no corresponding English
substantive. The draftsmen of the
code were working on the existing
basis of French law. vThey were
in the main mapping out a system
of French law. It would be a
marvellous thing indeed if persons
so engaged were to use a technical
term with a deﬁnite meaning well
known to French lawyers, and pre-
cisely adapted to the position it
occupies in the code, and yet should
intend to use it in some other sense,
which is not its technical sense, for
which it is not shown to be ever
used, and for which other words
are used.
“Even the general dictionaries,
ﬁve or six of which their Lordships
have consulted, do not lend any
countenance to the respondent’s
argument.
“ The Académie ﬁrst speaks of
the word as a noun adjective thus :—
‘ Qui est assujetti a rendre compte;
oﬁicier; agent Comptable; les re-
ceveurs sont comptables. J e ne
veux point de place d’emploi comp-
table,’ which Tarver translates, ‘ I
don’t want a place where accounts
are kept.’
“As a substantive it is said to
be thus used :—‘ Les Comptables
T
EXCHANGE
BANK or CAN-
ADA v. THE
QUEEN.
290 B.N.A. Ac'r, S. 92 (13).—C()NFLIGT BETWEEN ooDEs.
EXCHANGE
BANK or CAN-
ADA 1’. THE
QUEEN.
sont sujets a étre recherchés. C’est
un bon comptable,’ 6.6., a good
accountant.
“ Laveaux says very much the
same as the Académie. Both show
that the word is used metaphori-
cally, as ‘ Nous sommes comptables
de nos talens.’
“ Littré deﬁnes the adjective
thus :—‘ Qui a des comptes a tenir
et a rendre. Ofﬁcier, agent comp-
table ’; and he gives the metapho-
rical use. Of the substantive he
says, ‘ Celui qui est tenu de rendre
compte de deniers et de leur emploi.’
“ Bouillet, in his ‘ Dictionary of
Commerce,’ says of the word as a
substantive, ‘ Le mot s’applique a
toute personne qui est assujettie a
rendre compte des affaires qu'elle a
gerée.’
“ Coutanseau and Spiers render
it in English, ‘ An accountant. A
responsible agent.’
“ Their Lordships have not found
any trace of its being used in the
general sense of a debtor or person
under liability except in metaphor.
“ Tarver and Spiers render
‘ debtor ’ simply by the word ‘ de-
biteur.’
“Coming down to its special use
in the instrument now being con-
strued, their Lordships have found
many passages in the Civil Code
where the words ‘ colnptable ’ and
‘ compte ’ are used strictly of those
who are bound to account for par-
ticular transactions :—
“As of a tutor, art. 308 et seq.
of an heritier beneﬁciére,
art. 677.
of an executor, art. 913 etseq.
of a husband for his wife’s
goods, art. 1425.
of an agent, art. 1713.
of partners, art. 1898.
“ They have not been referred to,
and they have not found any pas-
sage in the Civil Code where these
words are used to denote generally
a debtor or person under liability.
“ For creditors and debtors the
words used are ‘ créanciers ’ and
‘ debiteurs ’ ; see Tit. III. through-
out, and particularly cap. 7.
“ To express general liability the
code uses such verbs as ‘ tenir,’
‘ repondre,’ ‘ charger,’ and their in-
ﬂexions or derivatives.
“ If there be any difference be-
tween the French and English ver-
sions, their Lordships think that in
a matter which is evidently one of
French law, the French version
using a French technical term.
should be the leading one. There
might be cases in which such a
question would arise. But it does
not arise here. The expression ‘ per-
sons accountable for its moneys ’ is
not calculated to convey to the
mind of an English lawyer the no-
tion of an ordinary debtor or of a
banker. As between a banker and
his customers, he, by English law,
is an ordinary debtor, and the
amount which he owes them is not
‘ their ’ money, nor is he ‘ account-
able’ for it in any but a popular
sense. Arts. 1778 and 1779 of
the Civil Code seem to be founded
on the same view. Mr. Justice
Ramsay says that to call a debtor
accountable to his creditor would
be a perversion of language. Their
Lordships, without going so far.
cannot see why, if the draftsmen
of the English version intended to
speak of debtors, they should not
have used the common term for the
purpose. Or rather they would
have used no term at all, but
would simply have mentioned
the claims of the Crown as they
have mentioned the claims of the
vendor and the lessor. In fact
the terms used are strong evidence
that in this passage ‘the English
version is really a translation from
the French, and that in translating
a French technical term for which
there is no English equivalent, the
draftsmen have used the best peri-
phrasis they could think of. Their
words are quite applicable to a
‘ Comptable,’ 9.6., an oﬁicer collect-
ing revenue, bound to earmark the
funds, to account for them, and not
to use them as his own. Such is the
position of an officer under the Act
31 Vict. c. 3. 18, as set out in
B.N.A. ACT, s. 92 (l3).—-PURPOSE OF PRE. CODE. 29].
the Record, p. 63. They may pos-
sibly include some other cases, but
they are not applicable to a bank
receiving money on deposit or cur-
rent account.
“Construing the words accord-
ing to the technical sense of
‘ Comptables,’ we come to the last
question ; which is the construction
of art. 611 of the Procedure Code.
“ In this article, the word ‘ de-
fendant’ is used with strict ac-
curacy in reference to the subject
matter of the title under which it
is found, but must receive a rea-
sonable latitude of construction in
applying the article to cases where
there is no defendant. And it
would seem that the words ‘in the
absence of’ would require to be
read in the meaning of ‘subject
to ’; for it can hardly have been
meant that the rule was not to
apply in any case where there
were some special privileges to be
answered. When construed in all
other respects literally, the article
certainly gives to the Crown the
priority claimed for it in this suit.
But then it comes into conﬂict
with art. 1994 of the Civil Code.
“ In the ﬁrst place, by giving to
the Crown a priority for all its
claims, it swamps the limited
priority given by the 10th head of
art. 1994, and renders that head
unmeaning. But beyond this there
is actual inconsistency between the
two articles. According to the
literal construction of 611, the
Crown has priority over funeral
expenses and other classes of
debts which by 1994 have priority
over the Crown.
“ It would seem that the majority
of the Queen’s Bench paid no
attention to this conﬂict. They
say they are asked to ‘ set aside ’
611 on the ground that it got into
the code in some wrongful way.
They were asked to do so, and
were quite right in their refusal.
But they were also asked to con-
strue the codes as they stand,
and as Mr. Justice Mathieu had
done. They do not notice the
conﬂict of 611 with 1994 or the EXCHANGE
necessity of modifying the con—
struction of one or the other. But
the duty of the judge is, if pos-
sible, to reconcile the two, and
for that purpose to look at all
relevant circumstances.
“ The appellants at the bar have
pressed somewhat too absolutely
the argument that a Procedure
Code is not intended to enact sub-
stantive law, and that this part of
the Procedure Code is only in-
tended to give directions to the
courts how to carry the rules of
the Civil Code into effect. Some
of the articles of the Procedure
Code (e._(/., art. 610) do create or
establish rights not touched by the
Civil Code. The two codes should
be construed together in this part
just as if the articles of the Pro-
cedure Code followed the corre-
sponding articles of the Civil Code.
“ So reading them, we ﬁnd that
the main purpose of this part of
the Procedure Code is to carry
into detail the principles laid down
in the Civil Code, which are re-
peated in the form of directions
how money is to be distributed.
And where fresh classes of priori-
ties are established, they are sub-
ordinate classes not interfering
with the larger classiﬁcation of the
Civil Code. Of course it could be
no part of the Procedure Code to
contravene the principles of the
Civil Code, and it is clear from
art. 605 that the two were be-
lieved to be working in harmony.
And when the Procedure Code is
found to overlap the Civil Code,
and so it becomes necessary to
modify the one or the other, the fact
that the function of the Procedure
Code is in this part of it a subor-
dinate one favours the conclusion
that it is the one to be modiﬁed.
“ That there should have been
any deliberate intention of giving a
large extension of privilege to the
Crown by the indirect method of
inserting a provision in a group of
clauses relating to a judicial dis-
tribution of property taken in exe-
BANK OF CAN-
ADA v. THE
QUEEN.
T2
292 B.N.A. ACT, s. 92 (13).—LIMITN. OF PRERoeATIvE.
EXCHANGE
BANK or CAN-
ADA v. THE
QUEEN.
MARITIME
BANK or CAN-
ADA v. REC.-
GEN. on NEW
BRUNSWICK.
cution, is a thing highly impro-
bable in itself. And the improba-
bility is much heightened by the
fact that at the same instant the
legislature was engaged in cutting
down throughout Upper Canada
the very same privilege which it
is held to have been setting up
throughout Lower Canada. 1
“ The foregoing are their Lord-
ships’ reasons for concluding that
full effect should be given to art.
1994, and that art. 611 should
consequently be modiﬁed so as to
be read in harmony with the
other. There is difficulty about
it, as there always is in these
cases of inconsistency. Following
the rule laid down for their guid-
ance in such cases by sec. 12 of
the Civil Code, their Lordships
hold that the meaning of the legis-
lature must have been to speak to
the following effect :———‘ Subject to
the special privileges provided for
in the codes, the Crown has such
preference over chirographic cre-
ditors as is provided in art. 1994.’
Or adhering as closely as possible
to its rather inaccurate language,
‘In the absence of any special
privilege, the Crown has a pre-
ference over unprivileged chiro-
graphic creditors for sums due to
it by the defendant, being a per-
son accountable for its money.’
“It may be objected that, thus
read, the article is only a repeti-
tion of what is contained in the
Civil Code. That is so, but it will
be found that some of this 0'roup
of articles (art. 607 may be taken
as an example), in ﬁxing the
rank of recipients of a fund ac-
tually under distribution, do con-
tain repetitions of the corres-
ponding articles of the Civil Code
which give the same rank in the
wider and more abstract form of
privileged claims or ‘ créances.’ The
objection therefore is not a serious
one, as the repetition results from
the principle on which these por-
tions of the two codes are framed,
“ This reading is nearly the same
as the readings proposed by Mr.
Justice. Mathieu and Chief Justice
Dorion. It is a large modiﬁcation
of the words, but not larger than
is required to bring the two sec—
tions into harmony. There is
ample authority for it in Carter
1:. Molson, April 18, 1883, 8 App.
Cas. 530; 52 L. J. P. C. 46; 49
L. T. 83; and the other cases
cited at the bar, and in that of the
Western Counties Railway Co. 1*.
Windsor and Annapolis Railway
Co. [7 App. Cas. p. 178, and post].
“The result is, that in the
opinion of their Lordships the
Court of Queen’s Bench ought to
have dismissed with costs the ap-
peal from the Superior Court.
They will now humbly advise Her
Majesty to make such a decree.
The respondents, by whom the
Court is represented, will pay the
costs of the consolidated appeals.”
MARITIME BANK OF CANADA 2).
REcEIvER- GENERAL OF NEW
BRUNswIcK, in S. C. April 30,
1889 [see 17 and 20 S. C. R. 657,
695, Ritchie, C.J., Strong, Four-
nier, Taschereau, Patterson, J J .,
Gwynne, J ., dissenting], afﬁrm-
ing on the question of priority over
other depositors and creditors of
equal degree, 27 S. C. N. B. 351,
379 [Allen, C.J., VVetmore, Fra-
ser, and King, JJ.]; in P. C.
2 July, [1892] A. C. 437; 61
L. J. P. C. 75; 67 L. T. 126.
Lord Watson delivered the fol-
lowing judgment [there being also
present Lords Hobhouse, Mac-
naghten, Morris, and Shand, and
Sir Richard Couch]: “This ap-
peal is brought by special leave in
a suit which followed upon a case
submitted for the opinion of the
Supreme Court of the province of
New Brunswick, by the appellants,
the liquidators of the Maritime
Bank of the Dominion of Canada,
in the interest of unsecured cre-
ditors of the Bank, on the one
side, and by the Receiver-General
of the province, claiming to re-
present Her Majesty, on the other.
The only facts which it is neces-
B.N.A. ACT, s. 92 (13).--CRO\VN AND PROVINCES.
293
sary to refer to are these: that
the Bank carried on its business
in the City of St. John, New
Brunswick; and that, at the time
when it stopped payment in March
1887 , the provincial Government
was a simple contract creditor for
a sum of $35,000, being public
moneys of the province deposited
in the name of the Receiver-
General. The case, as originally
framed, presented two questions
for the decision of the Court; but.
owing to the condition of the
Bank’s assets, the ﬁrst of these
has ceased to be of practical im-
portance, and it is only necessary
to consider the second, which is
in these terms: ‘Is the provin-
cial Government entitled to pay-
ment in full over the other
depositors and simple contract
creditors of the Bank ?’
“The Supreme Court of New
Brunswick unanimously, and, on
appeal, the Supreme Court of Ca-
nada with a single dissentient
voice, have held that the claim of
the provincial Government is for
a Crown debt to which the prero-
gative attaches, and therefore an-
swered the question in the affir-
mative.
“ The Supreme Court of Canada
had previously ruled, in The Queen
'0. The Bank of Nova Scotia [11
S. C. R. p. 1], that the Crown, as
a simple contract creditor for pub-
lic moneys of the Dominion de-
posited with a provincial bank, is
entitled to priority over other cre-
ditors of equal degree. The de-
cision appears to their Lordships
to be in strict accordance with
constitutional law. The property
and revenues of the Dominion are
vested in the sovereign, subject
to the disposal and appropriation
of the legislature of Canada; and
the prerogative of the Queen, when
it has not been expressly limited
by local law or statute, is as ex-
tensive in Her Majesty’s colonial
possessions as in Great Britain.
In The Exchange Bank of Canada
2:. The Queen [11 App. Cas. 157;
see previous case], this Board dis-
posed of the appeal on that footing.
although their Lordships reversed
the judgment of the court below,
and negatived the preference claim-
ed by the Dominion Government,
upon the ground that, by the law
of the province of Quebec, the
prerogative was limited to the case
of the common debtor being an
officer liable to account to the
Crown for public moneys col-
lected or held by him. The ap-
pellants did not impeach the au-
thority of these cases, and they
also conceded that, until the
passing of the B. N. A. Act, 1867,
there was precisely the same re-
lation between the Crown and the
province which now subsists be-
tween the Crown and the Do-
minion. But they maintained that
the effect of the statute has been to
sever all connection between the
Crown and the provinces; to make
the Government of the Dominion
the only Government of Her Ma-
jesty in North America; and to
reduce the provinces to the rank
of independent municipal institu-
tions. For these propositions,
which contain the sum and sub-
tance of the arguments addressed
to them in support of this appeal,
their Lordships have been unable
to ﬁnd either principle or authority.
“Their Lordships do not think
it necessary to examine, in minute
detail, the provisions of the Act of
1867, which nowhere profess to
curtail in any respect the rights
and privileges of the Crown, or to
disturb the relations then subsisting
between the sovereign and the pro—
vinces. The object of the Act was
neither to weld the provinces into
one nor to subordinate provincial
governments to a central authority,
but to create aFederal Government
in which they should all be repre-
sented, entrusted with the exclusive
administration of affairs in which
they had a common interest, each
province retaining its independence
and autonomy. That object was ac-
complished by distributing, between
MARITIME
BANK or CAN-
ADA 'v. REC.-
GEN. or NEW
BRUNswICK.
294 B.N.A. ACT, s. 92 (13).--PROVINGIAL INDEPENDENcE.
MARITIME
BANK or CAN-
ADA v. REC.-
GEN. or NEW
BRUNSWICK.
the Dominion and the provinces,
all powers executive and legisla-
tive, and all public property and
revenues which had previously be-
longed to the provinces; so that
the Dominion Government should
be vested with such of these powers,
property, and revenues as were
necessary for the due performance
of its constitutional functions, and
that the remainder should be re-
tained by the provinces for the
purposes of provincial government.
But, in so far as regards those
matters which, by section 92, are
specially reserved for provincial
legislation, the legislation of each
province continues to be free from
the control of the Dominion, and
as supreme as it was before the
the passing of the Act. In Hodge
u. The Queen [9 App. Cas. 117;
see sub-sec. 9, sec. 92], Lord Fitz-
gerald, delivering the opinion of
this Board, said: ‘ When the British
North America Act enacted that
there should be a legislature for
Ontario, and that its legislative
assembly should have exclusive
authority to make laws for the
province and for provincial pur-
poses in relation to the matters
enumerated in sec. 92, it conferred
powers not in any sense to be exer-
cised by delegation from or as
agents of the Imperial Parliament,
but authority as plenary and as
ample within the limits prescribed
by sec. 92 as the Imperial Parlia-
ment in the plentitude of its power
possessed a nd could bestow. Within
these limits of subject and area the
local legislature is supreme, and has
the same authority as the Imperial
Parliament, or the Parliament of the
Dominion.’ The Act places the
constitutions of all provinces within
the Dominion on the same level;
and what is true with respect to the
Legislature of Ontario has equal ap-
plication to the Legislature of New
Brunswick.
“ It is clear, therefore, that the
provincial Legislature of New Bruns-
wick does not occupy the subordi-
nate position which was ascribed to
it in the argument of the appellants.
It derives no authority from the
Government of Canada, and its
status is in no way analogous to
that of a municipal institution,
which is an authority constituted
for purposes of local administration.
It possesses powers, not of admini-
stration merely, but of legislation,
in the strictest sense of that word ;
and, within the limits assigned by
sec. 92 of the Act of 1867, these
powers are exclusive and supreme.
It would require very express lan-
guage, such as is not to be found
in the Act of 1867, to Warrant the
inference that the Imperial Legis-
lature meant to vest in the pro-
vinces of Canada the right of exer-
cising supreme legislative powers
in which the British sovereign was
to have no share.
“In asking their Lordships to
draw that inference from the terms
of the statute, the appellants mainly,
if not wholly, relied upon the fact
that, whereas the Governor-General
of Canada is directly appointed by
the Queen, the Lieutenant- Governor
of a province is appointed, not by
Her Majesty, but by the Governor-
General, who has also the power of
dismissal. 1f the Act had not com-
mitted to the Governor-General the
power of appointing and removing
Lieutenant-Governors, there would
have been no room for the argu-
ment, which, if pushed to its logical
conclusion, would prove that the
Governor-General, and not the
Queen, whose Viceroy he is, became
the sovereign authority of the pro-
vince whenever the Act of 1867
came into operation. But the argu-
ment ignores the fact that, by sec. 58,
the appointment of a provincial
Governor is made by the ‘ Gover-
nor-General in Council by instru-
ment under the great seal of
Canada,’ or, in other words, by the
Executive Government of the Do-
minion, which is, by sec. 9, ex-
pressly declared ‘ to continue and
be vested in the Queen.’ There is
no constitutional anomaly in an
executive oﬁicer of the Crown re-
B.N.A. ACT, s. 92 (13).—LT.-GOV. AND THE CROWN. 295
ceiving his appointment at the
hands of a governing body who
have no powers and no functions
except as representatives of the
Crown. The act of the Governor-
General and his Council in making
the appointment is, within the
meaning of the statute, the act of
the Crown; and a Lieutenant-Go-
vernor, when appointed, is as much
the representative of Her Majesty,
for all purposes of provincial go-
vernment, as the Governor-General
himself is, for all purposes of Do-
minion government.
“ The point raised in this appeal,
as to the vesting or non-vesting of
the public property and revenues
of each province in the sovereign
as supreme head of the State, ap-
pears to their Lordships to be prac-
tically settled by previous decisions
of this Board.
“ The whole revenues reserved
to the provinces for the purposes of
provincial government are speciﬁed
in secs. 109 and 126 of the Act.
The ﬁrst of these clauses deals with
‘all lands, mines, minerals, and
royalties belonging to the several
provinces of Canada, Nova Scotia,
and New Brunswick at the Union,’
which it declares ‘shall belong to
the several provinces of Ontario,
Quebec, Nova Scotia, and New
Brunswick, in which the same are
situate or arise.’ If the Act had
operated such a severance between
the Crown and the provinces, as the
appellants suggest, the declaration
that these territorial revenues should
‘belong’ to the provinces would
hardly have been consistent with
their remaining vested in the Crown.
Yet, in The Attorney-General of
Ontario 2). Mercer [8 App. Cas.
767 ; see sec. 109], St. Catherine’s
Milling and Lumber Co. v. The
Queen [14 App. Cas. 46; see sub-
sec. 24, sec. 91], and The Attorney-
General of British Columbia 2). T he
Attorney-General of Canada [14
App. Cas. 295; see sec. 109], their
Lordships expressly held that all
the subjects described in sec. 109,
and all revenues derived from these
subjects, continued to be vested in MARITIME
Her Majesty as the sovereign head
of each province. Sec. 126, which
embraces provincial revenues other
than those arising from territorial
sources, and includes all duties and
revenues raised by the provinces in
accordance with the provisions of
the Act, is expressed in language
which favours the right of the
Crown, because it describes the in-
terest of the provinces as a right of
appropriation to the public service.
And, seeing that the successive de-
cisions of this Board, in the case of
territorial revenues, are based upon
the general recognition of Her
Majesty’s continued sovereignty
under the Act of 1867, it appears
to their Lordships that, so far as
regards vesting in the Crown, the
same consequences must follow in
the case of provincial revenues
which are not territorial.
“ Being of opinion that the de-
cisions of both Courts below were
sound, and agreeing with the rea-
sons assigned by the learned judges,
their Lordships will humbly advise
Her Majesty to aﬂirm the judgment
appealed from, and to dismiss the
appeal. The appellants must pay
to the respondent his costs of this
appeal.”
[See Bank Act, 53 Vict. (Dom.)
c. 31. s. 53.]
TENNANT v. THE UNION BANK
OF CANADA, in the Ct. of App.
Ont., 8 Jan. 1892, 19 O. A. R. 1
[Hagarty, C.J.O., Osler and Mac-
lennan, JJ.A., Burton, J.A., dis-
senting], affirming Boyd, C., 4
June 1890; in P. C. 9 Dec. 1893,
[1894] A. C. 31; 63 L. J. P. C.
25; 69 L. T. 774. Lord Watson
delivered the following judgment,
affirming the court below [there
being also present at the first
argument Lords Hobhouse and
Morris, Sir Richard Couch, and
Lord Shand; and at the second the
above and Lord Herschell, L.C.,
and Lord Macnaghten] :—
“Christie Kerr & Co., sawmillers
and lumberers at Bradford, in the
BANK or CAN-
ADA v. REC.-
GEN. or NEw
BRUNSWICK.
TENNAN'r 0.
UNION BANK
or CANADA.
\Varehouse
Receipt-s Case.
296
B.N.A. ACT, s. 92 (13).-—-LUMBER sEcURITY.
TENNANT e.
UNION BANK
or CANADA.
\Vareho use
Receipts Case.
province of Ontario, became insol-
vent in April 1889. The Union
Bank of Canada, respondents in this
appeal, subsequently took possession
of and removed a quantity of lumber
which was stored in the yard of the
ﬁrm at Bradford. This action was
brought against the respondents in
December 1889, for damages in
respect of their alleged conversion
of the lumber, by Mickle Dyment
and Son, personal creditors of the
insolvent ﬁrm, in the name of James
Tennant, as assignee or trustee of
the ﬁrm’s estate, by whom they
were duly authorized to sue, in his
name, for their own exclusive use
and beneﬁt.
“ Christie Kerr & Co., to whom
it may be convenient to refer as
the ﬁrm, had a timber concession
in the county of Simcoe, where,
according to the course of their
business, the pine wood was felled
and cut into logs, which were
marked with the letters ‘ C. K.,’
the initials of the ﬁrm. The logs
were then conveyed, chieﬂy by
water, to their mill at Bradford,
where they were sawn and stored
for sale.
“ In order to obtain funds for
carrying on their trade during the
season of 1888, the ﬁrm, in Oc—
tober 1887, entered into a written
agreement with Peter Christie, son
of Alexander Christie, its senior
partner, who agreed to advance
the money necessary, upon receiv—
ing a lien by way of security upon
all the timber cut or manufactured
by the ﬁrm. On the other hand,
the ﬁrm undertook to do every-
thing that was necessary in order
to make such lien effectual, and for
that purpose to execute any docu-
ments which might be required.
“ In pursuance of that agreement
promissory notes were granted by
Peter Christie, which the Federal
Bank of Canada discounted, under
an arrangement by which they
were to receive warehouse receipts
covering all the timber belonging
to the ﬁrm. Peter Christie assign-
ed to the bank all right and beneﬁt
which he had under the agreement
of October 1887. The course of
dealing with the bank was, that the
ﬁrm granted warehouse receipts to
themselves, which they indorsed to
Peter Christie, by whom they were
indorsed to the bank.
“The Federal Bank went into
liquidation in June 1888, at which
date their advances amounted to
about 850,000. In order to meet
the claim of the liquidator, Alex-
ander Christie applied for accom-
modation to the respondents, who
agreed to give it, upon terms which
were arranged between him and
Mr. Buchanan, their manager.
The agreement was verbal; and
its terms, which are of considerable
importance in this case, appear
from the following statements made
by Alexander Christie in the course
of his evidence, which are sub-
stantially corroborated by Mr.
Buchanan and are nowhere con-
tradicted:—‘ That we and Peter
Christie should give his notes, that
Christie Kerr & Co. and A. R.
Christie should indorse them, and
that there should be a warehouse
receipt covering all the logs that
they had, and the lumber that was
to be manufactured from them.’
‘The intention was to give the
security of the logs and of the
lumber as it was manufactured.’
‘ We were to give them a receipt at
once upon the whole of the logs,
and as the logs progressed we
made a continuation to where they
were.’ ‘ Warehouse receipts were to
be furnished until the debt was paid.’
“ There was not, as in the case
of the Federal Bank, any assign-
ment to the respondents of Peter
Christie’s rights under the agree-
ment of October 1887 . It is clear,
from the account which he gives of
the transaction, that Alexander
Christie dealt with the respondents,
as the representative of his ﬁrm,
and also as representing his son
Peter, from whom he held a power
of attorney. Peter Christie took
no part personally in any of the
transactions, either with the Federal
B.N.A. ACT, S. 92 (13).—-NEGOTIABLE INSTRUMENTS. 297
Bank or with the respondents.
From ﬁrst to last, so far as his
interests were concerned, all ar-
rangements were made, and all
documents connected with them,
whether promissory notes or ware-
house receipts, were executed and
subscribed by his father on his
behalf. _
“ Upon the faith of the agree-
ment the respondents made advances
to the amount of $52,600 upon
promissory notes of Peter Christie,
indorsed to them by his attorney
and also by the ﬁrm. On the
20th June 1888, they received a
warehouse receipt for seventy thou-
sand pine saw logs marked ‘ C. K.,’
which were described as then stored
in the lakes St. Jean and Conchi-
ching, en route to Bradford mill.
These logs represented the whole
pine timber which had been cut for
transportation to Bradford during
the season of 1888; and as they
arrived at their destination, and
were sawn up, fresh receipts were
given to the respondents, contain-
ing a description of the timber in
its manufactured state. Portions
of the lumber were from time to
time sold by the ﬁrm, with the
consent of the respondents, and
the proceeds applied in reduction
of their advances.
“ The last of the series of receipts
deposited as security with the re-
spondents is dated the 1st January
1889, by which time all the logs
covered by the ﬁrst receipt of the
20th June 1888 had reached Brad-
ford, and had been converted into
lumber. It includes the whole of
the timber forming the original
subject of the security which then
remained unsold, and in the posses-
sion or custody of the ﬁrm.
Though not in precisely the same
form as the rest, it may be taken
as a specimen, because it was not
contended that the differences of
form were material. It runs
thus :—
“ ‘ The undersigned acknowledges
to have received from Christie
Kerr & Co., owners of the goods,
wares, and merchandise herein
mentioned, and to have now stored
in the premises known the Brad-
ford sawmill yard, adjoining the
village of Bradford, in the county
of Simcoe, the following goods,
wares, and merchandise, viz. :—
Five millions eight hundred and
ﬁfty-three thousand nine hundred
and twenty-four feet of lumber,
one hundred and ninety- three
thousand of shingles, all marked
‘C. K.,’ and manufactured during
season 1888 out of saw logs cut in
the townships of Oakley and Hin-
don, and transported to Bradford
mill and out there, which goods,
wares, and merchandise are to be
delivered pursuant to the order of
the said Peter Christie to be in-
dorsed hereon, and are to be kept
in store till delivered pursuant to
such order.’
“ ‘This is intended as a ware-
house receipt within the meaning
of the statute of Canada, intituled
‘An Act relating to Banks and
Banking,’ and the amendments
thereto, and within the meaning of
all other Acts and laws under
which a bank of Canada may
acquire a warehouse receipt as a
security.’
“This receipt was, like its prede-
cessors, signed by the ﬁrm, and by
them indorsed to Peter Christie,
and was then indorsed on his be-
half by Alexander Christie, and
delivered to the respondents.
“ It is not matter of dispute that
the timber of which the respon-
dents took possession, after the in-
solvency of the ﬁrm, was included,
either as saw logs or as lumber, in
all the receipts which they received
as security. But it does not
appear to their Lordships that these
receipts could be regarded as ne-
gotiable instruments carrying the
property of the timber, if their
effect depended upon the provisions
of the Mercantile Code which is
contained in the Revised Statutes of
Ontario, 1887.
“The Mercantile Amendment
Act (e. 122. of R. S.) deals with
TENNANT ‘v.
UNION BANK
or CANADA.
)Varehouse
Receipts Case.
298 B.N.A. ACT, s. 92 (13).—PROPERTY v. POSSESSION.
TENNANT 2).
UNION BANK
or CANADA.
\Varehouse
Receipts Case.
warehouse receipts and other mer-
cantile documents, which are eﬁ’ec-
tual to transmit the property of
goods without actual delivery.
That statute not only recognises
the negotiability of warehouse re-
ceipts by custodiers who are not
the owners of the goods; it extends
the privilege to receipts by one who
is both owner and custodier, but
that only in cases where the grantor
of the receipt is, from the nature of
his trade or calling, a custodier for
others as well as himself, and there-
fore in a position to give receipts
to third parties. The receipts in
question do not comply with the
requirements of the Act, because it
is neither averred nor proved, that
the ﬁrm, in the course of their
business, had the custody of any
goods except their own.
“It may also be noticed that
c. 125 of the Revised Statutes enacts
that when goods are transferred
by way of conveyance or mort-
gage, possession being retained by
the transferor, the deed of convey-
ance or mortgage, if not duly
registered, shall be absolutely null
and void as against creditors of the
grantor or mortgagor.
“ In these circumstances, certain
provisions of ‘ The Bank Act’
which was passed by the Legisla-
ture of the Dominion (46 Vict.
c. 120.), and is specially referred to
in the receipts held by the respon—
dents, become important. Although
now repealed, the Act was in force
during the whole period of these
transactions; and, if competently
enacted, its provisions must, in so
far as they are applicable, govern
the rights of parties in this liti-
gation.
“ Sec. 45 provides that the bank
shall not either directly or in-
directly lend money or make ad-
vances upon the security or pledge
of any goods, wares, or merchan-
dise, except as authorized by the
Act.
“ Sec. 53, sub-sec. 2, authorizes the
bank to acquire and hold any ware-
house receipt or bill of lading as col-
lateral security for the payment of
any debt incurred in its favour, in
the course of its banking busi-
ness. The document so acquired
vests in the bank ‘ all the right and
title of the previous holder or
owner thereof, or of the person
from whom such goods, wares, or
merchandise were received or ac-
quired by the bank, if the ware-
house receipt or bill of lading is
made directly in favour of the
bank, instead of to the previous
holder or owner of such goods,
wares, or merchandise.’ Sub-sec.
3 of the same clause provides
that if the previous holder of such
warehouse receipt or bill of lading
is the agent of the owner, the
bank shall be vested with all
the right and title of the owner,
subject to his right to have the
goods retransferred to him, upon
payment of the debt for which
they are held in security by the
bank.
“Sec. 54, which deals specially
with the case of the custodier
and owner of the goods being one
and the same person, enacts that :—
“ ‘If any person who grants a
warehouse receipt or bill of lading
is engaged in the calling, as his
ostensible business, of keeper of a
yard, cove, wharf or harbour, or of
warehouseman, miller, saw-miller,
maltster, manufacturer of timber,
wharﬁnger, master of a vessel, or
other carrier by land or by water,
or by both, curer or packer of meat,
tanner, dealer in wool or purchaser
of agricultural produce, and is at
the same time the owner of the
goods, wares, 'and merchandise
mentioned in such warehouse re~
ceipt or bill of lading, every such
warehouse receipt or bill of lading,
and the right and title of the bank
thereto, and to the goods, wares,
and merchandise mentioned therein,
shall be as valid and eﬁectual as if
such owner, and the person making
such warehouse receipt or bill of
lading were different persons.’
“ These enactments go beyond
the provisions of sec. 16 of the
B.N.A. AcT, s. 92 (13).—WAREHOUSE RECEIPTS.
299
Mercantile Amendment Act. They
omit the limitation of the provin-
cial statute, which requires, in order
to validate a warehouse receipt by a
custodier who is also owner, that
the trade or calling in which he is
ostensibly engaged must be one
which admits of his granting re-
ceipts on behalf of other owners
whose goods are in his possession.
“ The Chancellor of Ontario dis-
missed the suit with costs, and the
Court of Appeal aﬂirmed his deci-
sion. Upon the evidence. before
them all the learned judges, with
one exception, came to the conclu-
sion that the transaction was sub-
stantially one between the ﬁrm and
the respondents, and that Peter
Christie’s position was really that
of an intermediary; and conse-
quently that the respondents had a
right, against the ﬁrm, to demand
and receive warehouse receipts for
the timber in security for their ad-
vances. Mr. Justice Burton was
of opinion that the respondents
must be held to have dealt with
Peter Christie alone; that the re-
ceipts, in his hands, were not valid
either according to provincial law
or under the provisions of the Bank
Act; and that his indorsation could
not pass any interest in the timber
to the respondents.
“In the view which he took of
the real character of the trans-
action, the Chancellor held that
the receipts were eifectual, mainly
on the ground that Peter Christie,
in indorsing them, ought to be re-
garded as the agent of the ﬁrm
within the meaning of sec. 53, sub-
sec. 3, of the Bank Act. Chief J us-
tice Hagarty and Mr. Justice Mac-
lennan, who with Mr. Justice Osler
constituted the majority of the
Appeal Court, held that the re-
ceipts, having been given directly
to the respondents by the ﬁrm
under an obligation to that eﬁect,
were made eﬁectual by the provi-
sions of the Bank Act. They also
held that, assuming the receipts
not to be within the protection of
the Bank Act, Peter Christie had,
as between himself and the ﬁrm, TENNANT 11.
an equitable lien on the timber
which passed to the respondents;
UNIoN BANK
or CANADA.
and also that they had the same Warehouse
rights against the trustee of the Receipts Case-
insolvent ﬁrm as they had against
the ﬁrm itself. Mr. Justice Osler,
whilst agreeing that the respon-
dents dealt directly with the ﬁrm,
examined the case on the contrary
hypothesis, and held that, even in
that view, the receipts were vali-
dated by the Bank Act, and car-
ried the property of the timber to
the respondents.
“ In the courts below the appel-
lant pleaded that the provisions of
the Bank Act with respect to
warehouse receipts, in so far as
they differ from the provisions of
the Mercantile Amendment Act,
were ultra wires of the Dominion
Legislature. The plea was not
discussed, because it was ad-
mittedly at variance with the de-
cision of the Supreme Court of
Canada in Merchants’ Bank of
Canada f0. Smith [8 S. C. R. 512;
8 O. A. R. 15; 28 Grant, 629
(see ante, p. 65), and 1 Cart-
wright, 828], which was a prece-
dent binding on provincial tri-
bunals. The case was therefore
disposed of by the Chancellor and
the Appeal Court upon the footing
that the provisions of the Bank
Act were not open to challenge.
“ At the ﬁrst hearing of this
appeal the whole points arising in
the case were fully and ably ar-
gued by counsel, with the excep-
tion of the plea taken by the ap-
pellant against the validity of the
Dominion Act. Further discussion
at the time was prevented by the
Labrador case [a special reference
case], which had been specially set
down for the consideration of a
full board.
“ Their Lordships, having con-
sidered the argument which had
been addressed to them, came to
the conclusion that the majority of
the learned judges were right in
holding that, notwithstanding the
form of the documents by which
300 B.N.A. ACT, s. 92 (13).—VALIDITY OF DOM. ACT.
TENNANT v.
UNIoN BANK
or CANADA.
\Narehouse
Receipts Case.
it was carried out, the arrange-
ment made in June 1888, by
Alexander Christie and Mr.
Buchanan, was one between the
respondents and the ﬁrm, as well
as between them and Peter
Christie.
“ It does not admit of doubt
that the advances obtained from
the bank were intended to be for
the use and beneﬁt of the ﬁrm.
Although the promissory notes
were signed by his father as re-
presenting Peter Christie, it is
clear that they were signed for
the accommodation of the ﬁrm,
and that, in any question between
him and the ﬁrm, Peter Christie
was a mere surety. In a question
with the respondents he was no
doubt the primary debtor, but the
ﬁrm, as indorsers of the promissory
notes, were also under a direct
liability to the respondents, for
which security might be given.
And it is a material circumstance
that the evidence of Alexander
Christie, which has already been
cited, is only consistent with the
view that the ﬁrm undertook to
give the respondents the security
of the timber. The whole course
of dealing between the parties is
also consistent with that view.
The advances appear to have been
paid over to the ﬁrm, and the
warehouse receipts for the timber
to have been delivered by the ﬁrm
to the respondents; and it does
not appear that either the money
or the receipts ever passed or were
intended to pass into the possession
of Peter Christie.
“ Their Lordships also came to
the same conclusion with the ma-
jority of the learned judges, that,
assuming the provisions of the
Bank Act to be intra cires, the
receipts in question were such as
the ﬁrm could give and the re-
spondents could lawfully receive.
The obvious effect of sec. 54 is
that, for the purposes of the Bank
Act, a warehouse receipt by an
owner of goods who carries on, as
the ﬁrm did, the trade of a saw-
miller, is to be as eﬁectual as if it
had been granted by his bailee,
although his business may be con-
ﬁned to the manufacture of his
own timber. That enactment
plainly implies that such a receipt
is to be valid not only in the hands
of the bank, but in the hands of a
borrower who gives it to the bank
in security of a loan. Their Lord~
ships do not think that the provi-
sions of sec. 53, sub-sec. 2, which
are somewhat obscure, can be held
to cut down the plain enactments of
sec. 54, especially in a case where
the grantor of the receipt himself
delivers it to the bank as a security
for his own debt.
“It seems clear that the ﬁrm,
so long as they were solvent, could
not have refused to make delivery
of all the timber in their possession
to the respondents, although the
legal ownership was still with the
ﬁrm. But on that assumption,
and assuming also that their trus-
tee had no higher right than the
insolvents, the question remains
whether a creditor having an as-
signment from the trustee could
plead the nullity enacted by cap.
125 of the Revised Statutes. Their
Lordships, before dealing with
these questions, thought it expe-
dient to determine for themselves
whether the provisions of the Bank
Act. to which the appellant takes
exception, were competently en-
acted.
“The appellant’s plea against
the legislative power of the Domi-
nion Parliament was accordingly
made the subject of further argu-
ment ; and, the point being one of
general importance, their Lordships
had the advantage of being assisted
in the hearing and consideration of
it by the Lord Chancellor [Lord
Herschell] and Lord Macnaghten.
The question turns upon the con-
struction of two clauses in the
British North America Act, 1867 .
Sec. 91 gives the Parliament of
Canada power to make laws in re-
lation to all matters not coming
within the classes of subjects by the
B.N.A. ACT, s. 92 (l3).—-BANKING v. CIVIL RIGHTS.
301
Act exclusively assigned to the
legislatures of the provinces, and
also exclusive legislative authority
in relation to certain enumerated
subjects, the ﬁfteenth of which is
‘ Banking, incorporation of banks,
and the issue of paper money.’
Sec. 92 assigns to each provincial
legislature the exclusive right to
make laws in relation to the classes
of subjects therein enumerated; and
the thirteenth of the enumerated
classes is ‘ Property and civil rights
in the province.’
“ Statutory regulations with re-
spect to the form and legal effect,
in Ontario, of warehouse receipts,
and other negotiable documents,
which pass the property of goods
without delivery, unquestionably
relate to property and civil rights
in that province; and the objection
taken by the appellant to the pro-
visions of the Bank Act would be
unanswerable if it could be shown
that, by the Act of 1867, the Par-
liament of Canada is absolutely de-
barred from trenching to any ex-
tent upon the matters assigned to
the provincial legislature by sec. 92.
But see. 91 expressly declares that,
‘ notwithstanding anything in this
Act,’ the exclusive legislative au-
thority of the Parliament of Ca-
nada shall extend to all matters
coming within the enumerated
classes; which plainly indicates
that the legislation of that Parlia_
ment, so long as it strictly relates
to these matters, is to be of para-
mount authority. To refuse effect
to the declaration would render
nugatory some of the legislative
powers specially assigned to the
Canadian Parliament. For ex-
ample, among the enumerated
classes of subjects in sec. 91, are
‘pa-tents of invention and dis-
covery,’ and ‘copyrights.’ It
would be practically impossible for
the Dominion Parliament to legis-
late upon either of these subjects
without affecting the property and
civil rights of individuals in the
provinces.
“This is not the ﬁrst occasion
on which the legislative
laid down by secs.
have been considered by this Board.
OI"
limits TENNAN'I‘ 2'.
91 and 92 UNION BANK
CANADA.
In Cushing '0. Dupuy [5 App. Warehouse
Cas. 409; see ante, p. 80], their Receipts C380-
Lordships had before them the
very same question of statutory
construction which has been raised
in this appeal. An Act relating to
bankruptcy, passed by the Parlia-
ment of Canada, was objected to as
being ultra wires, in so far as it
interfered with property and civil
rights in the province; but, inas-
much as ‘bankruptcy and insol-
vency ’ form one of the classes of
matters enumerated in sec. 91,
their Lordships upheld the validity
of the statute. In delivering the
judgment of the Board, Sir Mon-
tague Smith pointed out that it
would be impossible to advance a
step in the construction of a scheme
for the administration of insolvent
estates without interfering with
and modifying some of the ordi-
nary rights of property.
“The law being so far settled
by precedent, it only remains
for consideration whether ware-
house receipts, taken in security
by a bank, in the course of the
business of banking, are matters
coming within the class of subjects
described in sec. 91, sub-sec. 15, ‘banking, incorporation of banks,
and the issue of paper money.’ If
they are, the provisions made by the
Bank Act with respect to such
receipts are z'lntra "vi-res. Upon
that point their Lordships do not
entertain any doubt. The legis-
lative authority conferred by these
words is not conﬁned to the mere
constitution of corporate bodies
with the privilege of carrying on
the business of bankers. It ex-
tends to the issue of paper our-
rency, which necessarily means
the creation of a species of per-
sonal property carrying with it
rights and privileges which the law
of the province does not, and can-
not, attach to it. It also compre-
hends ‘banking,’ an expression
which is wide enough to embrace
302
B.N.A. ACT, s. 92 (13).--BANK PRIVILEGES.
TENNANT 'v.
UNIoN BANK
or CANADA._
\Varehouse
Receipts Case.
ATT.-GEN. or
ONTARIO v.
ATT.—GEN. or
CANADA.
In re Assign-
ments and
Preferences
(Ont) Act.
every transaction coming within
the legitimate business of a banker.
“ The appellant’s counsel hardly
ventured to dispute that the lend-
ing of money on the security of
goods, or’ of documents represent-
ing the property of goods, was a
proper banking transaction. Their
chief contention was that, whilst the
Legislature of Canada had power
to deprive its own creature, the
bank, of privileges enjoyed b y
other lenders under the provincial
law, it had no power to confer
upon the bank any privilege as a
lender, which the provincial law
does not recognise. It might
enact that a security, valid in the
case of another lender, should be
invalid in the hands of the bank;
but could not enact that a security
should be available to the bank,
which would not have been effec-
tual in the hands of another lender.
It was said, in support of the
argument, that the ﬁrst of these
things did, and the second did not,
constitute an interference with
property and civil rights in the
province. It is not easy to follow
the distinction thus suggested.
There must be two parties to a
transaction of loan; and if a
security, valid according to pro-
vincial law, was made invalid in
the hands of the lender by a
Dominion statute, the civil rights
of the borrower would be affected,
because he could not avail himself
of his property in his dealings with
a bank.
“ But the argument, even if well
founded, can afford no test of the
legislative powers of the Parlia-
ment of Canada. These depend
upon sec. 91, and the power to
legislate conferred by that clause
may be fully exercised, although
with the eﬁect of modifying civil
rights in the province. And it
appears to their Lordships that
the plenary authority given to the
Parliament of Canada by sec. 91,
sub-sec. 15, to legislate in relation
to banking transactions, is suﬁicient
to sustain the provisions of the
Bank Act which the Appellant
impugns.
“ On these grounds, their Lord-
ships have come to the conclusion
that the judgments appealed from
ought to be atﬁrmed, and they will
humbly advise Her Majesty to
that effect. The appellant must
bear the costs of this appeal.”
THE ATT.-GEN. or ONTARIO v.
THE ATT.-GEN. FOR THE DOMINION
on CANADA. A question put under
53 Vict. (Out) 0. 13. to the Ct. of
App. Ont. to answer. 9 May 1893,
20 O. A. R. 489, Hagarty, C.J.O.,
and Burton, J .A. [Maclennain J .A.,
dissented, and Osler, J .A., gave no
opinion], held the Act in question
ultra 'v-i-res. In P. C. Feb. 24,
[1894] A. C. 189; 63 L. J. P. C.
59; 70 L. T. 538. The following
judgment, reversing the court be-
low, was delivered by Lord Her-
schell, L.C. [there being also pre-
sent Lords Watson, Macnaghten,
and Shand, and Sir Richard Couch] :
“This appeal is presented by
the Attorney-General of Ontario
against the decision of the Court
of Appeal of that province.
“ The decision complained of
was an answer given to a question
referred to that court by the Lieu-
tenant-Governor of the province
in pursuance of an Order in
Council.
“ The question was as follows :—
“‘Had the Legislature of On-
tario jurisdiction to enact the
9th section of the Revised Statutes
of Ontario, chapter 124, and en~
tituled “ An Act respecting Assign-
ments and Preferences by Insol-
vent Persons?” ’ '
“The majority of the court
answered this question in the
negative; but one of the judges
who formed the majority only
concurred with his brethren be-
cause he thought the case was
governed by a previous decision of
the same court; had he con-
sidered the matter res integra
he would have decided the other
B.N.A. ACT, 5. 92 (13).—DEFEAT OF CREDITORS.
303
way. The court was thus equally
divided in opinion.
“ It is not contested that the
enactment, the validity of which is
in question, is within the legisla-
tive powers conferred on the pro-
vincial legislature by sec. 92 of the
British North America Act, 1867 ,
which enables that legislature to
make laws in relation to property
and civil rights in the PI‘OVlIlCQ
unless it is withdrawn from their
legislative competency by the pro-
visions of the 91st section of that
Act, which confers upon the Do-
minion Parliament the exclusive
power of legislation with reference
to bankruptcy and insolvency.
“The point to be determined,
therefore, is the meaning of those
words in sec. 91 of the British
North America Act, 1867, and
whether they render the enactment
impeached ultra wires of the pro-
vincial legislature. That enact-
ment is see. 9 of the Revised
Statutes of Ontario of 1887, c.
124, entituled ‘An Act respecting
Assignments and Preferences by
Insolvent Persons.’ The section
is as follows :—
“‘An assignment for the gene-
ral beneﬁt of creditors under this
Act shall take precedence of all
judgments and of all executions
not completely executed by pay-
ment, subject to the lien, if any, of
an execution creditor for his costs,
where there is but one execution
in the sheriff’s hands, or to the
lien, if any, of the creditor for his
costs, who has the ﬁrst execution
in the sheriff’s hands.’
“In order to understand the
effect of this enactment, it is neces-
sary to have recourse to other
sections of the Act to see what is
meant by the words ‘ an assign-
ment for the general beneﬁt of
creditors under this Act.’
“ The ﬁrst section enacts that if
any person in insolvent circum-
stances, or knowing himself to be
on the eve of insolvency, volun-
tarily confesses judgment, or gives
a warrant of attorney to confess
judgment, with intent to defeat or
delay his creditors, or to give any
creditor a preference over his
other creditors, every such con-
fession or warrant of attorney shall
be void as against the creditors of
the party giving it.
“The second section avoids as
against the other creditors any
gift or assignment of goods or
other property made by a person
at a time when he is in insolvent
circumstances, or knows that he is
on the eve of insolvency, with
intent to defeat, delay, or prejudice
his creditors or give any of them a
preference.
“Then follows section three,
which is important :—
“Its ﬁrst sub-section provides
that nothing in the preceding
section shall apply to an assign-
ment made to the sheriff of.
county in which the debtor resides
or carries on business, or to any
assignee resident within the pro-
vince with the consent of his
creditors as thereinafter provided
for the purpose of paying, rateably
and proportionately, and without
preference or priority, all the
creditors of the debtor their just
debts.
“The second sub-section enacts
that every assignment for the
general beneﬁt of creditors which
is not void under section two but is
not made to the sheriff nor to any
other person with the prescribed
consent of the creditors shall be
void as against a subsequent assign-
ment which is in conformity with
the Act, and shall be subject in
other respects to the provisions of
the Act, until and unless a subse-
quent assignment is executed in
accordance therewith.
“The ﬁfth sub-section states
the nature of the consent of the
creditors which is requisite for
assignment in the ﬁrst instance to
some person other than the sheriﬁ.
“These are the only sections to
which it is necessary to refer in
order to explain the meaning of
sec. 9.
Ara-GEN. or
NTAmo ‘v.
A'I‘fl‘.-GEN. or
CANADA.
In re Assign—
ments and
Preferences
(Ont.) Act.
304 B.N.A. AcT, s. 92 (13).-ACTS To PREVENT FRAUD.
ATT.-GEN. or
ONTARIO 'v.
ATT.-GEN. or
CANADA.
In re Assign-
ments and
Preferences
(Ont) Act.
“Before discussing the effect of
the enactments to which attention
has been called, it will be conve-
nient to glance at the course of
legislation in relation to this and
cognate matters both in the pro-
vince and in the Dominion. The
enactments of the ﬁrst and second
sections of the Act of 1887 are to
be found in substance in sees. 18
and 19 of the Act of the province
of Canada passed in 1858 for the
better prevention of fraud. There
is a proviso to the latter section
which excepts from its operation
any assignment made for the pur-
pose of paying all the creditors of
the debtor rateably without prefer-
ence. These provisions were re-
peated in the Revised Statutes of
Ontario, 1877, c. 118. A slight.
amendment was made by the Act of
1884, and it was as thus amended
that they were re-enacted in 1887.
At the time when the statute of
1858 was passed there was no bank-
ruptcy law in force in the pro-
vince of Canada. In the year
1864 an Act respecting insolvency
was enacted. It applied in Lower
Canada to traders only; in Upper
Canada to all persons, whether
traders or non-traders. It pro-
vided that a debtor should be
deemed insolvent and his estate
should become subject to com-
pulsory liquidation if he com-
mitted certain acts similar to those
which had for a long period been
made acts of bankruptcy in this
country. Among these acts were
the assignment or the procuring of
his property to be seized in execu-
tion with intent to defeat or delay
his creditors, and also a general
assignment of his property for the
beneﬁt of his creditors otherwise
than in manner pron'ded by the
statute. A person who was unable
to meet his engagements might
avoid compulsory liquidation by
making an assignment of his estate
in the manner provided by that Act;
but unless he made such an assign-
ment within the time limited, the
liquidation became compulsory.
“This Act was in operation at
the time when the British North
America Act came into force.
“ In 1869 the Dominion Parlia-
ment passed an Insolvency Act
which proceeded on much the same
lines as the provincial Act of 1864,
but applied to traders only. This
Act was repealed by a new Insol-
vency Act of 1875, which, after
being twice amended, was, together
with the amending Acts, repealed
in 1880.
“In 1887, the same year in
which the Act under consideration
was passed, the provincial legis-
lature abolished priority amongst
creditors by an execution in the
High Court and County Courts,
and provided for the distribution
of any moneys levied on an execu-
tion rateably amongst all execution
creditors, and all other creditors
who within a month delivered to
the sheriff writs and certiﬁcates
obtained in the manner provided
for by that Act.
“Their Lordships proceed now
to consider the nature of the enact-
ment said to be ultra vires. It
postpones judgments and execu-
tions not completely executed by
payment to an assignment for the
beneﬁt of creditors under the Act.
Now there can be no doubt that
the effect to be given to judgments
and executions, and the manner and
extent to which they may be made
available for the recovery of debts,
are primd facie within the legisla-
tive powers of the provincial Par-
liament. Executions are a part of
the machinery by which debts are
recovered, and are subject to regu-
lation by that Parliament. A cre-
ditor has no inherent right to have
his debt satisﬁed by means of a
levy by the sheriff, or to any
priority in respect of such levy.
The execution is a mere creature
of the law which may determine
and regulate the rights to which
it gives rise. The Act of 1887
which abolished priority as amongst
execution creditors provided a sim-
ple means by which every creditor
B.N.A. ACT, s. 92 (13).—OLD BANKRUPTCY ACTS.
305
might obtain a share in the distri-
bution of moneys levied under an
execution by any particular cre-
ditor. The other Act of the same
year, containing the section which
is impeached, goes a step further
and gives to all creditors under an
assignment for their general beneﬁt
a right to a rateable share of the
assets of the debtor, including
those which have been seized in
execution.
“ But it is argued that inasmuch
as this assignment contemplates the
insolvency of the debtor, and would
only be made if he were insolvent,
such a provision purports to deal
with insolvency and therefore is a
matter exclusively within the juris-
diction of the Dominion Parliament.
Now it is to be observed that an
assignment for the general beneﬁt
of creditors has long been known
to the urisprudence of this country
and also of Canada, and has its
force and effect at common law
quite independently of any system
of bankruptcy or insolvency, or any
legislation relating thereto. So far
from being regarded as an essential
part of the bankruptcy law, such
an assignment was made an act of
bankruptcy on which an adjudica-
tion might be founded, and by the
law of the province of Canada
which prevailed at the time when
the Dominion Act was passed, it
was one of the grounds for an
adjudication of insolvency.
“ It is to be observed that the
word ‘ bankruptcy ’ was apparently
not used in Canadian legislation,
but the insolvency law of the pro-
vince of Canada was precisely ana-
logous to what was known in Eng-
land as the bankruptcy law.
“Moreover the operation of an
assignment for the beneﬁt of
creditors was precisely the same,
whether the assignor was or was
not in fact insolvent. It was open
to any debtor who might deem his
solvency doubtful, and who desired
in that case that his creditors should
be equitably dealt with, to make
an assignment for their beneﬁt.
S 2340.
The validity of the assignment and
its effect would in no way depend
on the insolvency of the assignor,
and their Lordships think it clear
that the 9th section would equally
apply whether the assignor was or
was not insolvent. Stress was laid
on the fact that the enactment
relates only to an assignment under
the Act containing the section, and
that the Act prescribes that the
sheriff of the county is to be the
assignee unless a majority of the
creditors consent to some other
assignee being named. This does
not appear to their Lordships to
be material. If the enactment
would have been intra Cires, sup-
posing sec. 9 had applied to all
assignments without these restric-
tions, it seems difficult to contend
that it became ultra wires by reason
of them. Moreover, it is to be
observed that by sub-sec. 2 of sec.
3, assignments for the beneﬁt of
creditors not made to the sheriff or
to other persons with the prescribed
consent, although they are ren-
dered void as against assignments
so made, are nevertheless, unless
and until so avoided, to be ‘ subject
in other respects to the provisions ’
of the Act.
“At the time when the British
North America Act was passed
bankruptcy and insolvency legisla-
tion existed, and was based on very
similar provisions both in Great
Britain and the province of Canada.
Attention has already been drawn
to the Canadian Act.
“ The English Act then in force
was that of 1861. That Act ap-
plied to traders and non-traders
alike. Prior to that date the opera-
tion of the Bankruptcy Acts had
been conﬁned to traders. The sta-
tutes relating to insolvent debtors,
other than traders, had been de-
signed to provide for their release
from custody on their making an
assignment of the whole of their
estate for the beneﬁt of their
creditors.
“It is not necessary to refer in
detail to the provisions of the Act
U
ATT.-GEN. or
ONTARIO o.
ATT.-GEN. OF
CANADA.
In re Assign-
ments and
Preferences
(Ont) Act.
306
B.N.A. AcT, 92 (13).-DOM. AND FORESHOBE.
‘
ATT.-GEN. or
ONTARIO 'v.
ATT.-GEN. or
CANADA.
In re Assign-
ments and
Preferences
(Ont) Act.
of 1861. It is enough to say that
it provided for a legal adjudication
in bankruptcy, with the conse-
quence that the bankrupt was di-
vested of all his property and its
distribution amongst his creditors
was provided for.
“It is not necessary, in their
Lordships’ opinion, nor ‘would it
be expedient, to attempt to deﬁne
what is covered by the words
‘ bankruptcy ’ and ‘ insolvency ’ in
sec. 91 of the British North
America Act.
that it is a feature common to all
the systems of bankruptcy and in-
solvency to which reference has
been made, that the enactments
are designed to secure that in the
case of an insolvent person his
assets shall be rateably distributed
amongst his creditors, whether he
is willing that they shall be so
distributed or not. Although pro-
vision may be made for a voluntary
assignment as an alternative, it is
only as an alternative. In reply
to a question put by their Lord-
ships, the learned counsel for the
respondent were unable to point to
any scheme of bankruptcy or in-
solvency legislation which did not
involve some power of compulsion
by process of law to secure to the
creditors the distribution amongst
them of the insolvent debtor’s
estate.
“ In their Lordships’ opinion,
these considerations must be borne
in mind when interpreting the
words ‘ bankruptcy ’ and ‘ insol-
vency ’ in the British North
America Act. It appears to their
Lordships that such provisions as
are found in the enactment in
question, relating as they do to
assignments purely voluntary, do
not infringe on the exclusive legis-
lative power conferred upon the
Dominion Parliament. They would
observe that a system of bank-
ruptcy legislation may frequently
require various ancillary provisions
for the purpose of preventing the
scheme of the Act from being de-
feated. It may be necessary for
But it will be seen,
this purpose to deal with the effect
of executions and other matters
which would otherwise be within
the legislative competence of the
provincial legislature. Their Lord-
ships do not doubt that it would be
open to the Dominion Parliament
to deal with such matters part
of a bankruptcy law, and the pro-
vincial legislature would doubtless
be then precluded from interfering
with this legislation, inasmuch as
such interference would affect the
bankruptcy law of the Dominion
Parliament. But it does not follow
that such subjects as might pro-
perly be treated as ancillary to such
a law, and therefore within the
powers of the Dominion Parlia-
ment, are excluded from the legis-
lative authority of the provincial
legislature when there is no bank-
ruptcy or insolvency legislation of
the Dominion Parliament in exist-
ence.
“ Their Lordships will therefore
humbly advise Her Majesty that.
the decision of the Court of Appeal
ought to be reversed, and that the
question ought to be answered in
the affirmative. The parties will
bear their own costs of this appeal.”
The Dominion Parliament can
deprive the public of access to a
portion of the foreshore by giving
power to a railway company to
build on such alleged right of
way: City of Vancouver r. Cana-
dian Paciﬁc Railway, Feb. 20,
1894, 23 S. C. R. 1, affirming 2 S.
C. B. C. 306.
The Canadian Temperance Act,
187 8, is not a matter in relation to
property and its rights, for it had
in its legal aspect an obvious and
close resemblance to the laws
which place restrictions on the sale
and custody of poisonous drugs
or of dangerously explosive sub-
stances. N or could it be regarded
as restriction 011 “ civil rights,”
for laws of this nature, like laws
making it criminal for a man to set
ﬁre to his house, to overwork his
horse, or prohibiting the sale or
exposure of cattle having a con~
B.N.A. ACT, s. 92 (13).—DOM. AND ISLANDS.
307
tagious disease, belong to the sub-
ject of public wrongs rather than
to that of civil rights. See Russell
"0. The Queen, June 23, 1882, 7
App. Cas. 829; 51 L. J. P. C. 77;
46 L. T. 889.
In CUsHING v. DUPUY, April 15,
1880, 5 App. Cas. 409; 49 L. J.
P. C. 63; 42 L. T. 445, the ap-
pellant was refused leave to appeal
by the Queen’s Bench, Quebec, on
the ground that the Dominion Act,
40 Vict. c. 41. s. 28, by adding
to see. 128 of the Dominion Act,
38 Vict. c. 16., “The judgment of
the court to which under this section
the appeal can be made shall be
ﬁnal.” The Privy Council held
the Royal prerogative to allow an
appeal was not touched by the
Dominion Act, as it did not profess
to touch it, and upon general
principles the rights of the Crown
can only be taken away by express
words, and granted leave to appeal.
See sec. 91, sub-sec. 21.
The provinces can by law de-
termine the terms upon which aliens
may become entitled to preempt
land within the province. Opinion
of Minister of J ustice, 3 June 187 3.
Prov. Leg., 1886, 721.
Ritchie, C.J., said in the City of
Fredericton,April 13, 1880, 3 S.C.R.
505 [see ante, sub-sec. 27, sec. 91] :
“ To my mind it seems very
clear that the general jurisdiction
or sovereignity ” which is conferred
upon the Dominion “ emphatically
negatives the idea that there is not
within the Dominion legislative
power or authority to deal with
the question of prohibition in re-
spect to the sale or traﬂ‘ic in in-
toxicating liquors or any other
article of trade or commerce. It
is said a power to regulate does not
include a power to prohibit. Apart
from the general legislative power
which, I think, belongs to the
Dominion Parliament, I do not
entertain the slightest doubt that
the power to prohibit is within the
power to regulate.” But see Gov.-
Gen. Dominion '0. The Four Pro-
CITY or FRED—
vinces, and The Liquor License ERICTON-
Acts, 1883—4, sub-sec. 9, sec. 92,
where the result appeared to be
that the Dominion could not pro-
hibit totally. See argument in
Goya-Gen. There Lord Herschell
[then Sir Farrer Herschell] argued Cusnme v.
that in Citizens’ Insurance Co. v. DUPUY-
Parsons it was held that the local
Act was not ultra m'res because it
was not overborne by the provision
as to the regulation of trade and
commerce. It was the creation of
certain implied conditions in that
particular province ; relating to the
property in that province; also a
matter dealing with civil rights in
that province.
In FORSYTH v. BURY, June 14,
1888, 15 S. C. R. 543, the con-
stitutional question as to the validity
of 35 Vict. (Dom.) c. 115., which
incorporated the Island of Anti-
costi Co., was raised. It was
held by Strong, Fournier, and
Taschereau, J J . (Ritchie, C.J., and
Gwynne, J ., dissenting), that as
the sale to the company had been
recognised by the person whom
the plaintiff represented, and the
plaintiﬁ herself having been a
party to the sale by licitation (a
compulsory proprietors’ sale) of the
island, she was estopped from
raising the constitutional question
and from claiming to set aside the
deed of sale.
Sir W. Ritchie, C.J., said :
“This Dominion Act, so far as
it professes to confer the right to
purchase the island of Anticosti, in
the province of Quebec, and to sell
or lease the same, is in my opinion
clearly ultra wires of the Dominion
Parliament. It for a provincial
object, and affecting property and
civil rights in the province of
Quebec alone; the legislative right
to incorporate such a company
belongs to the provincial legis-
lature under the B. N. A. Act.
The company, then, ‘having no legal
existence to enable them to pur-
Fonsv'm v.
BURY.
U2
308
B.N.A. AcT, S. 92 (14).-RIGHT To APPEAL.
FoEsYTn v.
BURY.
T IIEBEReE z'.
LANDRY.
chase, hold, or sell the land, the
answer to the plaintiff’s contention
simply is : If the Dominion Act is
ultra wires, the alleged company
never was incorporated in reference
to provincial objects, or in con-
nection with property and civil
rights in the province; therefore,
there was no charter to be violated,
nor any charter into the validity of
which it is necessary to inquire.
The existence of this company is not
questioned collaterally, but directly,
in this case, the plaintiff claiming
by, through and under the alleged
corporation, which, as sh own, should
have no existence as such.
In that case a petition for special
leave to appeal was presented to the
Judicial Committee. In refusing
permission to appeal, Sir Barnes
Peacock [there being also present
Lord Hobhouse and Lord Mac-
naghten] said the constitutional
point might have been raised; but
the opportunity to do so not having
been taken, that question could not
be re-opened: Queen’s Order, 10
Aug. 1888; 11 Can. Gaz. 418.
See Marbury 2*. Madison, 5 S. C.
U. S. (1 Cranch) 137. An Act re-
pugnant to the Constitution cannot
become a law.
(14.) The administration of justice in the province,
including the constitution, maintenance, and
organization of provincial courts, both of civil
and of criminal jurisdiction, and including
procedure in civil matters in these courts.1
1 The Imperial statute, in assigning
to the Dominion Parliament (sec.
91 , sub-sec. 21) bankruptcy and
insolvency, intended to confer on it
legislative power to interfere with
procedure within the provinces so
far as a general law relating to
those subjects might be affected
therein. And therefore the Privy
Council decided in Cushing Q’.
Dupuy, in Q. B., Quebec, 2 March
1878, 22 L. C. J. 201; in P. C.
April 15, 1880, )Vheeler’s P. C.
Law, 113; 5 App. Cas. 409, p. 416;
49 L. J. P. C. 63; 42 L. T.
445 [ante, p. 80], that the Par-
liament of Canada would not in-
fringe the exclusive powers given to
the provincial legislatures by en-
acting, by 40 Vict. (Dom) c. 41.
28, that the judgment of the
Court of Queen’s Bench in matters
of insolvency should be ﬁnal and
not subject to the appeal as of
right to Her Majesty in Council.
See also Tennant 22. Union Bank
of Canada, Ontario C. A., 8 Jan.
1892, 19 O. A. R. 1, Dec. 9, 1893,
[1894] A. C. 31; 63 L. J. P. C.
25; 69 L. T. 774 [see sub-sec.
13]. The result is, the Dominion
Parliament can take away leave to
appeal as of right, but not the pre-
rogative of the Queen to grant
leave, unless it is done by express
words. And there is a third case
where no right to appeal ever did
exist; in that case it is doubtful if
the Queen can give leave.
THEBERGE c. LANDR-Y, in Sup. C.
Quebec, 29 May 1876; in P. C. 7
Nov. 1876, 2 App. Cas. 102; 46 L.
J. P. C. 1; 35 L. T. 640; 25 \V.
R. 216; 3 Q. L. R. 202, wasacase
where the provincial legislature as-
signed to the provincial court con-
troverted election petitions.
Lord Cairns, L.C. [there being
also present Sir Barnes Peacock,
Sir Robert Collier, and Sir Henry
Keating], delivered the following
judgment on the petition for leave
to appeal :—
“ The petitioner in this case
states that he was a candidate at
an election held in July 1875,
in the province of Quebec, for the
B.N.A. ACT, s. 92 (14).—THE QUEEN’S PREROGATIVE. 309
office of member to represent the
electoral district of Montmanier in
the legislative assembly of the pro-
vince, and that he was declared
duly elected; but that after the
election a petition was presented
by certain electors against the
return of the petitioner, alleging
that he had been guilty of corrupt
practices by himself and his agents,
and praying that the seat might be
declared vacant, and the petitioner
declared disqualiﬁed, in accordance
with the provisions of the Quebec
Controverted Elections Act. He
then states that the petition was
tried according to the Act before
the court, and that the court pro-
nounced a sentence against the
petitioner, declaring the election
null and void, and declaring him
guilty of corrupt practices, both
personally and by his agents. The
petition states certain objections
which the petitioner makes to the
decision of the court, and prays
that Her Majesty in Council will
be graciously pleased to order that
the petitioner shall have special
leave to appeal from the judgment
of the Superior Court for the pro-
vince of Quebec of the 29th May
1876, that is to say, from the
judgment declaring the election of
the petitioner to be null and void.
“The Act of Parliament in
question is the Quebec Controverted
Elections Act of the year 1875.
That Act repealed an Act of the
Quebec Legislature of the 36th
year of Her Majesty’s reign, that
is, in 1872, which was entituled
‘ An Act to provide for the Deci-
sion of Controverted Elections by
the Judges, and to make better
provision for the Prevention of
Corrupt Practices at Elections.’
That Act of 187 2 appears to have
been the Act which, in Quebec,
transferred to the court the decision
of controverted elections, which
before that time was vested in or
was retained in its own hands by
the legislative assembly of the pro-
vince. By the force of the two
Acts of 1872 and 187 5, in Quebec,
as in this country, the decision of TIIP'JBERGE l‘-
LANDRY.
questions of that kind has now
become vested in the Supreme
Court. The 89th section of the
later of these two Acts, the Act of
187 5, provides that the superior
court sitting in review shall deter-
mine,—ﬁrst, whether the member
whose election or return is com-
plained of has been duly elected or
declared elected; second, whether
any other person, and who, has
been duly elected; third, whether
the election was void; and fourth,
all other matters arising out of the
petition or requiring its determina‘
tion. Then the 90th section en-
acts, ‘ Such judgment shall not be
susceptible of appeal.’
“ Now, upon that 90th section it
is contended on behalf of the peti=
tioner that it does not take away
any prerogative right of the Crown ;
that the Crown and the preroga‘
tive of the Crown is not specially
or particularly mentioned; and that
the general rule is, that the pre-
rogative of the Crown cannot be
taken away except by a speciﬁc
enactment. It is said that this
section may be satisﬁed by holding
that the intention of the legislature
was that there should be no appeal
from a superior court to the Court
of Queen’s Bench in the colony,
which was the kind of appeal that
existed in civil cases in the colony,
and that the prerogative of the
Crown is not in any way affected.
“Their Lordships wish to state
distinctly, that they do not desire
to imply any doubt whatever as to
the general principle, that the pre-
rogative of the Crown cannot be
taken away except by express
words; and they would be pre-
pared to hold, as often has been held
before, that in any case where the
prerogative of the Crown has
existed, precise words must be
shown to take away that preroga-
tive. But, in the opinion of their
Lordships, a somewhat diﬁerent
question arises in the present case.
These two Acts of Parliament, the
Acts of 1872 and 1875, are Acts
310 B.N.A. ACT, 92 (14).-UN COMMON LEGISLATION.
TEEBEEGE 'v.
LANDRY.
peculiar in their character. They
are not Acts constituting or pro-
viding for the decision of mere
ordinary civil rights ; they are
Acts creating an entirely new, and
up to that time unknown, juris-
diction in a particular court of the
colony for the purpose of taking
out, with its own consent, of the
legislative assembly, and vesting in
that court, that very peculiar juris-
diction which, up to that time, had
existed in the legislative assembly
of deciding election petitions, and
determining the status of those who
claimed to be members of the legis-
lative assembly. A jurisdiction of
that kind is extremely special, and
one of the obvious incidents or
consequences of such a jurisdiction
must be that the jurisdiction, by
whomsoever it is to be exercised,
should be exercised in a way that
should as soon as possible become
conclusive, and enable the con-
stitution of the legislative assembly
to be distinctly and speedily known.
Accordingly we ﬁnd, on looking at
the Act of Parliament, that after
providing by the 89th section as to
the matters which the superior
court is authorized to determine,
the 91st section declares that a
certiﬁed copy of the judgment shall
be transmitted without delay to the
Speaker, and another to the pro-
thonotary in the district in which
the petition was presented, and
then the 118th section provides :—
‘ The Speaker shall, at the earliest
practical moment after having re-
ceived the judgments and reports,
adopt all the proceedings necessary
for conﬁrming or altering the re-
turn of the returning officer, or for
the issuing of a new writ for a new
election within 30 days, or for
otherwise carrying the ﬁnal judg-
ment into execution, as circum-
stances may require. He may, for
the issuing of such writ of election,
address his warrant under hand
and seal to the Clerk of the Crown
in Chancery.’ Then the 119th
section is :—‘ The Speaker shall
without delay communicate to the
legislative assembly the judgments
and the reports received, and his
own proceedings thereon.’ And
the 120th section is :—-‘ When a
special report has been received,
the legislative assembly may make
such order in respect of such
special report as it may deem
proper.’ The whole scheme, there-
fore, of the Act of Parliament is
that, once the action of the superior
court takes place, and the decision
of the superior com~t arrived at,
the machinery is to go on just as it
had formerly gone on inside the
legislative assembly ;—writs are to
be issued, seats are to be taken,
other proceedings are to be had, as
would have been the case before
the court was called into operation,
and when the legislative assembly
decided these matters by its own
authority.
“ Stopping there, it would be
very diﬂicult to do otherwise than
conclude, from the character of
these enactments, that the object
which the legislature had in view
was to have a decision of the
superior court, which, once arrived
at, should be for all purposes con-
clusive.
“But there is a further con-
sideration which arises upon this
Act. If the judgment of the su-
perior court should not be con-
clusive, of course the argument is
that the power which is to be
brought to bear to review the
judgment is the power of the
Crown in Council.
“ Now, the subject-matter, as
has been said, of the legislation is
extremely peculiar. It concerns
the rights and the privileges of the
electors and of the legislative
assembly to which they elect mem-
bers. Those rights and privileges
have always in every colony, fol-
lowing the example of the mother
country, been jealously maintained
and guarded by the legislative
assembly. Above all, they have
been looked upon as rights and
privileges ‘which pertain to the
legislative assembly, in complete
B.N.A. AGT, 9. 92 (14).—-APPEAL QUESTIONABLE. 311
independence of the Crown, so far
as they properly exist. And it
would be a result somewhat sur-
prising, and hardly in consonance
with the general scheme of the
legislation, if, with regard to rights
and privileges of this kind, it were
to be found that in the last resort
the determination of them no
longer belonged to the legislative
assembly, no longer belonged to
the superior court which the legis-
lative assembly had put in its place,
but belonged to the Crown in
Council, with the advice of the
advisers of the Crown at home, to
be determined without reference
either to the judgment of the legis—
lative assembly, or of that court
which the legislative assembly had
substituted in its place.
“ These are considerations which
lead their Lordships not in any way
to infringe, which they would be far
from doing, upon the general prin-
ciple that the prerogative of the
Crown, once established, cannot be
taken away, except by express
words; but to consider with anxiety
whether in the scheme of this
legislation it ever was intended to
create a tribunal which should
have, as one of its incidents, the
liability to be reviewed by the
Crown under its prerogative. In
other words, their Lordships have
to consider, not whether there are
express words here taking away
prerogative, but whether there ever
was the intention of creating this
tribunal with the ordinary incident
of an appeal to the Crown. In the
opinion of their Lordships, advert-
ing to these considerations, the
90th section, which says that the
judgment shall not be susceptible
of appeal, is an enactment which
indicates clearly the intention of
the legislature under this Act,—an
Act which is assented to on the
part of the Crown, and to which
the Crown, therefore, is a party,—
to create this tribunal for the pur-
pose of trying election petitions in
a manner which should make its
decision ﬁnal to all purposes, and
should not annex it to the incident THEBERGE v-
LANDRY.
of its judgment being reviewed by
the Crown under its prerogative.
“In the opinion, therefore, of
their Lordships, there is not in this
case, adverting to the peculiar
character of the enactment, the
prerogative right to admit an ap-
peal, and therefore the petition
must be refused.
“ It is, of course, in this view of
the case, unnecessary to consider
whether, if there had been a right
to admit an appeal, it would have
been a case in which, in the discre-
tion of this tribunal, an appeal
should be admitted. On that point
their Lordships have never enter-
tained any shadow of doubt. They
clearly are of opinion that, even if
there was the power of admitting
an appeal, this is not a case in
which an appeal ought to be ad-
mitted; but, in their opinion, it is
not a case in which it was ever
contemplated or intended that there
should be a power to admit an ap- -
peal on the part of the legislature.
“Their Lordships were in one
part of Mr. Benjamin’s argument
pressed with another matter, that
even if an appeal should not be
here admitted generally, yet that
there was in the ﬁnding of the
judge a subordinate part, which
ought to be brought by way of review
before this tribunal. Mr. Benjamin
said that the judge had found that
the petitioner was personally guilty
of corrupt practices; and then he
said that the Quebec Election Act,
by a particular section, the 267th,
provided that if it is proved before
the court that corrupt practices have
been committed by or with the
actual knowledge or consent of any
candidate, not only the election shall
be void, but the candidate shall,
during the seven years next after
the date of such decision, be incap-
able of being elected to and of
sitting in the legislative assembly,
of voting at any election of a mem-
ber of the House, or holding an
office in the nomination of the
council of the Lieutenant-Governor
312 B.N.A. ACT, 92 (14).—“CIVIL JURISDICTION.”
THEEERGE v.
LANDRY.
VALIN v. LANG-
LOIS.
of the province. Mr. Benjamin
contended that the Act of Parlia-
ment, so far as it engrafted on the
decision of the judge this declara-
tion of incapacity, was ultra 'vires
the power of the legislature of the
province. Upon that point their
Lordships do not think it necessary
to express any opinion whatever.
If the Act of Parliament was in
this respect, as contended, ultra
tires the provincial legislature, the
only result will be that the con-
sequence declared by this section of
the Act of Parliament will not
enure against and will not affect the
petitioner; but it is not a subject
which should lead to any different
determination with regard to that
part of the case.
“Upon the whole, their Lord-
ships will humbly advise Her Ma-
jesty that this petition be dis-
missed.”
In VALIN 1‘. LANGLoIs, in S. C.,
Quebec, Jan. 1879, 5 Q. L. R. 1,
the question was whether the court
could legally discharge the duties
assigned to it by the Dominion
Controverted Elections Act, 1874.
Meredith, C.J., said: “The
answer to that question must de-
pend on the right of the Dominion
to legislate on the subject, and upon
the extent of the powers of this
Court considered in relation to the
duties thus assigned to it ” by the
Act. . . “I may at once admit,
although the admission by some
may be deemed to go too far,
that in my opinion the ‘ con-
stitution ’ of provincial courts,
which is exclusively within the
power of the provincial legislature,
includes the power to determine the
jurisdiction of those courts; and
places that jurisdiction beyond the
control of the Dominion Parlia-
ment. If that opinion be well
founded, then the powers of this
Court could not be enlarged by the
Controverted Elections Act of
1874; and, therefore, according to
my views, it becomes necessary to
inquire what are the powers of this
Court according to its constitution.” -
Reads sec. 2, c. 78. of C. S. L. C., as
follows : “ ‘The Superior Court has
original civil jurisdiction throughout
Lower Canada, with full power and
authority to take cognizance of, hear,
try, and determine in the ﬁrst in-
stance, and in due course of law, all
cicilpleaacauses, and matters what-
soever, as well those in which the
Crown may be a party, as all others,
excepting those purely of Admiralty
jurisdiction, also those over which
original jurisdiction is given to the
Circuit Court.’ ” His Lordship then
continued, that the court having in
effect civil jurisdiction throughout
the province to try and determine
‘ all civil matters,’ subject to certain
exceptions, the question reduced
itself to this, Was the trial of a con—
tested election petition a civil mat-
ter? And he considered it was, once
the House of Commons, like the
House of Commons, England, had
relinquished the privilege of deter-
mining contested election petitions.
On the further point that the Par-
liament of Canada was held in
another province, he said (p. 11):
“ It may be true that the jurisdic-
tion of the provincial court, of
which I am a member, cannot be
extended by the Dominion Parlia-
ment ; but I am not aware that there
is anything to prevent me, as a
judge named by the Dominion
Government, from discharging any
duty assigned to me by the Domi-
nion Parliament. . . The framers of
the statute of 1873 deemed it pru-
dent to make the judges of the
Superior Court a new Dominion
Court, as to the powers of which
there could be no difficulty. But I
cannot see that any such proceeding
was necessary, with respect to
judicial powers intended to be given
to the judges separately, acting out
of court, as I am now doing. If
the Dominion Parliament, as was
done by the Act of 187 3 (36 Vict.
c. 28.), could make me a judge of
another court, and then give me, out
of court, the powers in question, I
fail to see why the same legislature
B.N.A. ACT, s. 92 (14)—POWERS TO JUDeEs. 313
vency—wholly beyond the powers VALIN v. LANG-
could not confer upon me the same
of the provincial legislature [but LOIS-
powers without going through the
form of creating a new court.” .
His Lordship then said a judge
holding a trial under sec. 48 of the
Act of 1874 (37 Vict. c. 10., which
repealed the Act of 1873) would be
in the same position as the judges
were who held election courts
under the Act of 1873. That a
number of American cases had been
referred to, but he did not dwell
upon them as he did not question
the proposition they were intended
to support, namely, that under the
Act of Confederation the Dominion
Parliament cannot enlarge the
jurisdiction of the provincial
courts. Again, his Lordship said the
question in Théberge v. Landry
[see above] was different, inasmuch
as the main question in this case
was the power of the Dominion
Parliament to impose certain
duties upon the provincial courts.
But no such question was raised in
Théberge v. Landry; the statutes in
question in that case being provincial
statutes respecting provincial courts ;
there being no question as to the
power of the provincial legislatures
to pass such statutes. He then
passed to the objection that, not-
withstanding the provision of the
Imperial Act, declaring that the
provincial legislature has exclusive
power to legislate as to procedure
in civil matters in provincial
courts, the Dominion Parliament,
by the statute impugned, has de-
clared what shall be from be-
ginning to end the procedure in
this provincial court, in this civil
matter, and continued: “ In order
(p. 14) to arrive at the true mean-
ing of the section respecting pro-
cedure in civil matters in the pro-
vincial courts, it is necessary to re-
collect that although very much
the greater part of the civil matters
in the provincial courts are matters
completely within the powers of
the provincial legislatures, yet that
there are some of these matters—
for instance, the present matter, and,
I think I may add, matters in insol-
see Cushing v. Dupuy, ante, p. 78] ;
and, bearing this in mind, I think
the provisions of the Imperial Act,
giving the provincial legislature
exclusive power to make laws re-
specting proceedings in ‘ civil mat-
ters ’ in provincial courts, may from
the nature of the subject be under-
stood as meaning ‘civil matters’
within the power of those legisla-
tures, and not as giving, as is con-
tended, to the provincial legisla-
tures power to establish the pro-
cedure in civil matters, in other
respects, utterly beyond their
power, and completely under the
control of the Dominion Parlia-
ment. Now if the exclusive power
of the provincial legislatures as to
the regulation of procedure does
not extend to matters, as to which,
in other respects, they have no
control, and which in no respect
concern them, then such mat-
ters, even as to procedure, would
be within the general powers of
the Dominion Parliament, and the
difficulty as to procedure would
disappear.” Afﬁrmed in 3 S. CR. 1,
by Sir Wm. Ritchie, C.J., Fournier,
Henry, T aschereau, and Gwynne,
VALIN v. LANeLoIs was heard
and decided in the Privy Council on A
a motion for special leave to appeal,
Dec. 13, 1879, 5 App. Cas. 115;
49 L. J. P. C. 37; 41 L. T. 662.
Lord Selborne, delivering judg—
ment, dealing with sub-sec. 14,
sec. 92, said [5 App. Cas. p. 119;
see, for full judgment, ante, p. 18] :
“Even if sec. 41 were not in the
Act, it would not be quite plain
that the transfer of the jurisdic-
tion to determine upon the right
to seats in the Canadian Legis-
lature—a thing which had been
always done not by courts of justice
but otherwise—would come within
the natural import of those general
words, ‘the administration of jus_
tice in the province, and the con-
stitution, maintenance, and organi-
314: B.N.A. ACT, 92 (14).——SUBJECT-MATTER & DOM.
VALIN v- LANG- zation of provincial courts, and
LOIS.
KENNEDY v.
P URCELL.
procedure in civil matters in those
courts.’ But one thing at least is
clear, that those words do not point
expressly, or by any necessary im-
plication, to the particular subject
of election petitions; and when
We ﬁnd in the same Act another
clause which deals expressly with
those petitions, there is not the
smallest diﬂiculty in taking the two
clauses together and placing upon
them both a consistent construction.
That other clause, the 41st, ex-
pressly says that the old mode of
determining this class of questions
was to continue until the Parlia-
ment of Canada should otherwise
provide. It was, therefore, the
Parliament of Canada which was
otherwise to provide.” . . . .
“Even supposing that this were
not in truth and in substance the
creation of a new court. If the
subject-matter is within the juris-
diction of the Dominion Parlia-
ment it is not within the jurisdic-
tion of the provincial parliament,
and that which is excluded by the
91st section from the jurisdiction of
the Dominion Parliament is not
anything else than matters coming
within the classes of subjects
assigned exclusively to the legisla-
tures of the provinces. The only
material class of subjects relates to
the administration of justice in the
provinces, which, read with the
41st section, cannot be reasonably
taken to have anything to do with
election petitions. There is, there-
fore, nothing here to raise a doubt
about the power of the Dominion
Parliament to impose new duties
upon the existing provincial courts,
or to give them new powers as to
matters which do not come within
the classes of subjects assigned ex-
clusively to the legislatures of the
provinces.”
KENNEDY 1). Human, in S. C.
29 March 1888, 14 S. C. R. 453, re-
versing Rose, J .; in P. C. 7 July
1888, decided that the decision of
the Supreme Court is ﬁnal upon
questions of election law. In Feb-
ruary 1887 a Mr. Purcell was de-
clared to be elected a member of
the House of Commons of the Do-
minion as the representative of
Glengarry, Ontario.
On the 25th April 1887 a petition
was lodged against his return imme-
diately after the session of Parlia-
ment commenced.
On December 1, 1887, the court
made an order enlarging the time
of trial for two months. On 17 De-
cember 1887 an order was made ﬁx-
ing the place and time of trial. On
12 and 13 January 1888 the trial was
held before Rose, J ., who, on the
latter date, held the election void,
and that Mr. Purcell had been guilty
of corrupt practices. He appealed
to the S. C. [present, Sir William
Ritchie, C.J., Fournier, Henry,
Taschereau, and Gwynne, JJ
On the 29th March 1888 the S. C.
reversed the decision of Rose, J .,
on the grounds (1) That the time
Parliament was sitting should be
computed as part of the six months
allowed for the commencement of
the action under the Dominion
Controverted Elections Act, 1887,
sec. 32, R. S. C. c. 9. sec. 32
[Gwynne, J ., dissenting] ; (2) That
after the expiry of the six months
the court had no power to extend
the time for trial, if the court below
had been aware the time had expired,
and therefore the order appointing
the trial was ultra wires [ Ritchie,
C.J., and Gwynne, J ., dissenting] ;
and That these were competent
objections to make after the trial
had taken place [Gwynne, J ., dis-
senting].
It appears Mr. Purcell had sat
for two months after the decision
was made known, and no motion of
the Commons was made to declare
the election void.
The petitioner Kennedy applied
to the Judicial Committee for leave
to appeal.
Sir Barnes Peacock: “Suppose
we recommended Her Majesty to
reverse the judgment, how would
that decree be carried into execu-
B.N.A. ACT, s. 92 (14).—-H.
OF C. NOT ACTING. 315
tion? It would go to the House
of Commons and be reported to the
Speaker. The Speaker could not
act on his own authority, and could
only act by order of the House:
suppose the House to say, ‘Her
Majesty has no prerogative to do
this, and we refuse to carry it out.’
Then there would be an immediate
conﬂict between the House of Com-
mons of the Dominion and Her
Majesty. It would not be a very
prudent thing for us to advise Her
Majesty to reverse a judgment un-
less we can see our way to having
it carried into execution when Her
Majesty orders it. Suppose the
House of Commons, on the report
of the Supreme Court that both
parties had been guilty of bribery,
ordered a new writ, but Her Ma-
jesty ordered that writ to be re-
called, or upset the election which
had taken place under it. It ap-
pears to me there is no mode of
carrying out the decree; and we
would not advise Her Majesty to
reverse a decree unless we saw a
mode of carrying the decree into
execution.”
The respondent was also heard.
See 11 Can. Gaz. 294, 338.
In the Privy Council Lord Hob-
house delivered the following judg-
ment [there being also present Lord
Macnaghten, Sir Barnes Peacock,
and Sir Richard Couch] :—
“This petition gives rise to a
question of considerable import-
ance. The decision complained of
has been made under the provisions
of the Canadian Controverted Elec-
tions Acts; and it will be con-
venient to refer brieﬂy to those
provisions of the Acts on which the
judgment of their Lordships is
mainly rested.
“The principal Act, 49 Vict.
c. 9, is contained in the Revised
Statutes of Canada of the year
1886, and is amended in some
respects by a subsequent statute
passed in 1887. The Act of 1886
consolidates and amends previous
Acts passed for the purpose of
giving to courts of justice the
power of deciding disputed elections KENNEDY "-
Pt'RcELL.
which was previously possessed _by
the elected bodies themselves. The
course of procedure is as follows :—
A petition is to be presented to the
local court, which is to have the
same powers as if such petition
were an ordinary cause within its
jurisdiction, secs. 2, 3, 5, 35. Very
short periods of time are prescribed
for giving notice of the petition,
for taking preliminary objections to
it, and for answering it if those ob-
jections are overruled, sees. 10, 12,
13. Every petition is to be tried
by one of the judges of the court
without a jury, sec. 31 of the Act
of 1887. The trial of every pe-
tition is to be commenced within
six months of its presentation, and
to be proceeded with from day to
day until it is ever, see. 32. ' ‘he
court may enlarge the time for com-
mencement of trial, or the period
limited for taking any step or pro-
ceeding, sees. 33, 64. The judge
may order a special case to be stated
for the decision of any question,
but it is ‘ as far as possible ’ to be
heard before that judge, sec. 49.
An appeal from the judge’s decision
may be made to the Supreme Court
of Canada within eight days. If
there is no such appeal, the judge
is within four additional days to
certify his decison to the Speaker
of the House of Commons, who is
to take action thereupon ‘ at the ear-
liest practicable moment,’ or ‘with-
out delay.’ If there is an appeal,
the Supreme Court is to decide, its
registrar is to certify the decision,
and the Speaker to take action upon
it, sees. 43, 46, 4'7, 50, 51.
“The election in question took
place on the 22nd February 1887,
when Mr. Purcell was returned as
duly elected. The petition was pre-
sented on the 25th April following,
immediately after the session of
Parliament commenced. On the
lst of December 1887 the Court of
Common Pleas made an order en-
larging the time of trial for two
months. On the 13th January
1888 the trial took place before Mr.
316
B.N.A. ACT, 5. 92 (14).-THEBERGE EXAMINED.
KENNEDY v.
PURCELL.
Justice Rose, who declared that the
election of Mr. Purcell was void,
and that he had been guilty of cor-
rupt practices. He appealed to the
Supreme Court, who, on the 29th
March 1888, reversed the decision
of Mr. Justice Rose, and dismissed
the petition.
“ It appears that the decision of
the Supreme Court did not turn
on the merits of the case, but
entirely on questions of procedure,
which were three in number. First,
whether the time during which
Parliament was sitting should be
computed as part of the six months
allowed for the commencement of
the trial. Secondly, whether after
the expiry of the six months the
court has power to extend the time
for trial. Thirdly, whether the
appellant, not objecting to the
enlargement when the order was
made, was entitled to object after-
wards. On all or some of these
questions, two out of the ﬁve udges
who heard the appeal were in favour
of the petitioner, but the other
three judges decided in favour of
Mr. Purcell on all of them.
“ It is now urged by the petitioner
that inasmuch as the questions de-
cided are important questions of
law aﬁecting the construction of
the election statutes, and there is
good ground for doubts as to the
soundness of the decisions, Her
Majesty in Council should enter-
tain an appeal. On the other side
the importance of the questions is
not denied, nor is it denied that the
decisions on them are fairly open to
argument. But it is contended,
ﬁrst, that the subject-matter is not
one with respect to which the pre-
rogative of the Crown exists; and,
secondly, that if the prerogative
does exist, it is not proper to
exercise it.
“ To support the ﬁrst proposition,
the case of T héberge v. Landry
[Sup C. Quebec, 29 May 1876;
in P. C. Nov. 7, 1876, 2 App.
Cas. 102; 46 L. J. P. C. 1; 35 L. T.
640] is relied on. That case arose
under the Quebec Elections Act of
1875, by which the jurisdiction to
try election petitions was given to
the Superior Court, whose decisions
were declared ‘ not susceptible of‘
appeal.’ The petitioner sought to
appeal on the merits of the election.
The decision of this Committee was,
not that the prerogative of the
Crown was taken away by the
general prohibition of appeal, but
that the whole scheme of handing
over to courts of law disputes which
the legislative assembly had pre-
viously decided for itself, showed
no intention of creating tribunals
with the ordinary incident of an
appeal to the Crown.
“1n the case of Valin v. Lang
lois [in court below, 3 S. C. R. 1 ;
in P. C. Dec. 13, 1879, 5 App.
Cas. 115; 49 L. J. P. C. 37; 41
L. T. 662; and ante, p. 18], the
petitioner asked for leave to appeal
trom a decision of the Supreme
Court of Canada under the Contro-
verted Elections Act of 1874, which
is one of the statutes consolidated
by the Act now in question. The
ground of appeal was that the Act,
being a Dominion Act, was ultra
wires of the Dominion, in assuming
to give the courts in Quebec juris-
diction over elections in Quebec to
the Canadian House of Commons.
This Committeeheld that there was
no ground for any such contention,
and dismissed the petition. But it
was said that if they had doubted
the soundness of the decision below
they would have advised Her
Majesty to grant leave to appeal.
That opinion is now relied on as
limiting or contravening the effect
of the decision in Théberge "v.
Landry.
“Their Lordships do not think
that for the present purpose any
useful or substantial distinction can
be taken between the statute which
was the subject of decision in
Théberge v. Landry, that which
was the subject of decision in Valin
v. Langlois, and those which are
now in question. In all three
cases there is the broad conside-
ration of the inconvenience of the
B.N.A. ACT, s. 92 (iii-CROWN INTERFERING. 317
Crown interfering in election mat-
sideration, usually a strong one, KENNEDY @-
ters, and the unlikelihood that the
that the decision complained of PURCELL'
colonial legislature should have
intended any such result. In all
three there is the creation of a
special tribunal for the trial of
petitions, in the sense that the liti-
gation is not left to follow the
course of an ordinary lawsuit, but
is subjected to a special procedure
and limitations of its own. And
in all three there is the same ex-
pression of the intention to make
the colonial decision ﬁnal. But
such variance as there is between
the two cited cases is only to this
extent, that the Committee in the
latter case must have thought that
the question of the existence of the
prerogative was still susceptible of
argument, when the dispute went
to the very root of the validity of a
law passed by Parliament to take
effect in a province. Their opinion
on an ex parte hearing, and on the
sole question whether or no there
should be any further argument on
the matter at all, cannot be put
higher than that.
“Their Lordships do not ﬁnd
it necessary to give any decision
on the abstract question of the
existence of the prerogative in this
case, because they are satisﬁed that
if it exists it ought not to be
exerted in the case before them.
“ It is true that the questions are
very debateable, and that they
affect the administration of the
whole law on this subject. But
the range of cases affected by them
must be very narrow. It is not
suggested that in the present Par-
liament there is a single case
except the one under appeal. There
can be no other case till fresh
elections take place; and if the
decisions now given have really
misinterpreted the mind of the
legislature, and are calculated to
establish rules of procedure less
convenient than those intended, the
legislature can at once set the
matter right. This peculiarity
of the subject -matter largely
diminishes the force of the con-
affects general questions of law.
“ The next observation is that
the statutes show throughout a
desire to have these matters decided
quickly. There are the most
obvious reasons for such a desire.
The legal duration of a Parliament
is, as their Lordships understand,
ﬁve years, and its usual duration
four years. It is most important
that no long time should elapse
before the constitution of the body
is known. And yet if the Crown is
to entertain appeals in such cases,
the necessary delays attending such
appeals would greatly extend the
time of uncertainty which the legis-
lature has striven to limit.
“ Again, the intention to conﬁne
the decision locally within the
colony itself is just as clear as the
intention to get it passed speedily,
because it is expressed that the
decision of the Supreme Court shall
be ﬁnal. And it seems to their
Lordsdips that there are strong
reasons why such matters should be
decided within the colony, and why
the prerogative of the Crown should
not, even if it legally can, be ex-
tended to matters over which it had
no power, and with which it had no
concern, until the legislative bodies
chose to hand over to judicial
functionaries that which was for-
merly settled by themselves. Before
advising such an exertion of the
prerogative, their Lordships would
require to ﬁnd indications of an
intention that the new proceedings
should so follow the course of
ordinary law as to attract the pre-
rogative. But the indications they
do ﬁnd are of the contrary ten-
dency.
“The result is that their Lord-
ships cannot advise Her Majesty to
grant the leave asked, and that the
petition must be dismissed with
costs.”
In RYAN v. DEvLIN, 5 N ov.
1875, B. Quebec, 20 L. C. J. 77,
before John son,Torran cc, and Beau-
RYAN v.
DEvLIN.
318 B.N.A. ACT, s. 92 (14).--PROVINOES AND ooua'rs.
RYAN v.
DEVLIN.
dry, J J . [the latter dissenting],
Johnson, J ., dealing with the D0-
minion Controverted Elections Act
of 187 3—74, said: Parliament by the
earlier Act “did contemplate the
creation of an additional court
called an ‘ election court,’ but that
has not been done in the statute of
1874.” And Meredith, C.J., deal-
ing with the same Dominion Acts
in Valin v. Langlois, 1879, 5 Q. L.
R. p. 13, says: There cannot be
any “ doubt that the framers of the
Act of 1873 thought the creation
of a new court, for the trial of
election petitions, a wise precau-
tion; and probably it was so, as
tending to prevent controversy;
but it does not follow that they
deemed that precaution abso-
lutely necessary; and the Act of
1874 shows that Parliament, upon
further consideration, came to the
conclusion that some of the duties
connected with the trial of election
petitions, could be assigned to the
ordinary civil tribunals.” The pas-
sage of Johnson, J ., in Ryan 7).
Devlin, 20 L. C. J. p. 82, is : “ It
is not an Act [the Act of 1874] for
the ‘ constitution, maintenance, and
organization of a supreme court,’
neither is it an Act for the estab-
lislnnent of ‘any additional court.’
Sec. 101 of the B. N. A. Act may,
therefore, be treated as inapplic-
able. [Reads that section] These
powers have not been exercised by
this statute in a direct manner, as
was done by the statute of 1873,
which did create an additional
court, as woman was formed out
of man, by taking some of the ma-
terials of the Superior Court and
making them into what that Act
called an ‘ Election Court.’ That
has not been done in the statute of
1874, and the argument is, that
not having made an additional
court 00 nomine, the legislature
could not impose new duties on a
provincial court already existing,
without violating the provisions of
sec. 92, which assign to the pro-
vincial legislature ‘the adminis-
tration of justice, 800.’ [Reads
sub-sec. 14, sec. 92.] It will be ob-
served that the local legislature can
only create provincial courts.” He
goes on to say : “ If the Dominion
Parliament has disregarded the
provisions of sec. 101, and appar-
ently, at ﬁrst sight, overridden the
rights reserved to the provincial
parliaments, there must be some
presumable reason for what they
have done. Courts of justice are
not to look at statutes with a view
to defeat them, but with a view to
give them eifect. We must not
presume that the Canadian Parlia-
ment has proceeded without intelli-
gence or discrimination; we must
see if there is not some other power
given in the Confederation Act
which they meant to exercise be-
sides that of creating ‘additional
courts.’ Now, there is clearly such
a power given by sec. 91—a power
which they could exercise without
any restriction by those enumerated
as belonging even to themselves,
much less by those belonging to
the different provinces, a power
which is expressly conferred by
that section: ‘ Notwithstanding
anything contained in this Act.’
[Reads beginning of sec. 91; and
see notes thereto, p. 43.] Then
follows the enumeration of classes
of subjects belonging to the fed-
eral power to deal with. There
are, therefore, two kinds of things
which the Confederation Act of
1867 says are within the exclusive
rights of the Dominion Legislature.
Some of them are expressed in the
list or enumeration of subjects that
follows; others are not expressed,
but are reserved in the body of the
section, and are said to relate to
‘all matters not assigned to pro-
vincial legislation,’ and, with re-
spect to those matters, the Dominion
Legislature has the exclusive power
to make laws for the peace, order,
and good government of Canada,
and these powers so reserved ex-
clusively to the Dominion are much
more general and extensive than
those which were susceptible of
enumeration. In other words, as
B.N.A. ACT, s. 92 (14).——RESIDUARY IN DOM.
319
it was obviously impossible for any
foresight to provide beforehand, and
in detail, for every case in which
Dominion legislation might be re-
quired, the Imperial Act seems, in
effect, to have said, ‘Notwithstand—
ing anything in this Act, notwith-
standing that we have enumerated
the most salient subjects on which
the Dominion Legislature may make
laws, it must be clearly understood
that there is nothing at all to pre-
vent them from legislating for the
whole Dominion in matters not to
be found in the list of those given
to them, and not assigned to the
provinces.’ ”
See also Owens 1*. Cushing,
5 Nov. 1875, 20 L. C. J. 86, where
Mackay and Torrance, J J . [Beau--
dry, J ., dissenting], aﬁ‘irming J 01111-
son, J., held there was jurisdiction
in the Dominion to pass the 37 Vict.
c. 10.
In the NIAGARA ELECTION CAsE,
11 Dec. 1878, 29 U. C. C. P. 261,
p. 280, in which Galt and Gwynne,
JJ, (Wilson, J ., dissenting), held
the Dominion Controverted Elec-
tions Act of 1874 valid, Hodgins,
Q.C., in arguing against the validity
of the Act, cited the American
cases given below, some of which are
probably those referred to by Mere-
dith, C.J., in Langlois r. Valin, 5
Q. L. R. p. 11 : “The 101st section
of the B. N. A. Act empowers the
Federal Parliament to establish
courts. A similar authority is
vested in the Congress of the
United States : ‘ The judicial power
of the United States shall be vest-
ed in one supreme court, and in
such inferior courts as Congress
shall from time to time establish ’
(art. 3, sec. 1). The value of
American decisions as to the
legislative authority of a dual
sovereignty like ours was ap-
proved in Leprohon r. Corpora-
tion of Ottawa, 2 O. A. R. 529,
532. In the United States, which
possesses a system of dual govern-
ment like ours, the Federal and
State courts, since 1812, have
held that Congress cannot vest
jurisdiction in a State court. ‘ Con-
gress cannot vest any portion of
the judicial power except in courts
ordained and established by itself ’ :
Martin v. Hunter, 1816, 14 S. C.
U. S. (1 Wheat.) 304; Houston 9*.
Moore, 1820, 18 S. C. U. S. (5
Wheat.) p. 27; Ely 'v. Peck, 1828,
7 Conn. at p. 242; United States
v. Hudson, 1812, 11 S. C. U. S.
(7 Cranch) 32; The Wave, Blatch
and Howl, 235 ; United States '0.
Hudson, 1819, 17 Johns, p. 4.
A Federal court cannot enjoin pro-
ceedings in a State court: Diggs 2*.
Wolcott, 8 SC .U.S. (4 Cranch) l7 9.
In that case Gwynne, J. , said [29
U. C. C. P. p. 279] : “Much was
said about the constitution, main-
tenance, and organization of our
courts being exclusively under the
control of the provincial legisla-
tures, including the procedure in
civil matters in those courts. These
latter words, in the 14th paragraph
of sec. 92, plainly apply to the pro-
cedure in those civil matters over
which the preceding paragraph, the
sub-sec. 13, gave to the provincial
legislature exclusive control, name-
ly, ‘property and civil rights in
the provinces,’ and do not affect
procedure in the case before us,
which, being a matter over which
the provincial legislature has no
jurisdiction, it could not assume to
prescribe a procedure relating there-
to ; but the perfect accuracy of the
proposition that the constitution
and organization of our courts are
exclusively under the jurisdiction
of the provincial legislatures, al-
though the determination of the
point before us does not require its
discussion, may, as it appears to
me, well be questioned. The con-
stitution of the old courts in exis-
tence at the time of confederation
cannot be abolished or altered
without the assent of the Dominion
Government to the Act passed for
the purpose by the provincial legis-
lature. No new courts can be con-
stituted, or when constituted be
abolished or altered, without the
NIAGARA Btu-('-
TroN CAsE.
320 B.N.A. ACT, s. 92 (14).-PROVS. CREATING oouETs.
NIAGARA ELEC— like assent. No doubt the right to
TION CASE.
ATT.-GEN. or
QUEBEC v.
REED.
constitute and organize courts of
justice is, by the B. N. A. Act,
vested in the provincial legislature
except in so far as participation
in such organization is by the same
Act reserved to the Dominion au-
thorities. Now, courts for the ad-
ministration of justice would be
very imperfectly organized without
judges. They form a very im-
portant constituent in'the organiza-
tion of courts, and, until their ap-
pointment, it cannot be said with
accuracy that the courts are com-
pletely constituted and organized.
As the appointment then of the
judges rests in the Dominion
Government, and the power to re-
move them is vested in the Domi-
nion Parliament, and as no altera-
tion in their constitution can be
effected without the assent of the
Dominion Government to the Act
of the provincial legislature passed
for the purpose, it would be more
consistent with the frame of our
constitution to speak of all newly-
created courts as being constituted
and organized by the united action
of the Dominion and provincial
authorities; and the judges of such
courts, as well as the judges of the
old courts whose existence until
abolished or altered has continued
as if the union had not been made,
may with perfect propriety be
deemed to be oﬂicers of the Domi-
nion Government, and may well be
deemed subject to have duties im-
posed upon them by the Dominion
Parliament of a judicial character
in respect of matters over which
that Parliament has control, of like
nature with those matters which by
the nature and constitution of the
courts of which they are judges,
are within the scope of their gene-
ral jurisdiction.”
In ATTORNEY-GENERAL or QUE-
BEC 'v. REED, 8 S. C. R. 408; in
P. C. Nov. 26, 1884,10 App. Cas.
141; 54 L. J. P. C. 12; 52 L. T.
393, the question was as to the
validity of an Act, 43 and 44 Vict.
c. 9., of the Quebec Legislature
imposing a tax of 10 cents on every
exhibit produced in court. After the
main question whether the tax was
direct or indirect under sub-sec. 2,
sec. 92, came the question whether
it was valid under this sub-sec. 14.
Earl Selborne, L.C., dealing with
the latter point, said [10 App. Cas.
p. 144] : “ That point, which is the
main point, and was felt to be so
by Mr. Davey in his very able and
clear argument, being disposed of,
the next question, upon the terms
of the same section of the same Act,
is that which arises under sub-sec.
14. One of the things which are to
be within the powers of the pro-
vincial legislatures—within their
exclusive powers—is the adminis—
tration of justice in the province,
including the constitution, mainten-
ance, and organization of provincial
courts, and including the procedure
in civil matters in the courts. Now
it is not necessary for their Lord-
ships to determine whether, if a
special fund had been created by a
provincial Act for the maintainence
of the administration of justice in
the provincial courts, raised for that
purpose, appropriated to that pur-
pose, and not available as a general
revenue for general provincial pur-
poses, in that case the limitation
to direct taxation would still have
been applicable. That may be an
important question which will be
considered in any case in which it
may arise; but it does not arise in
this case. This Act does not relate
to the administration of justice in
the province; it does not provide
in any way, directly or indirectly,
for the maintenance of the provincial
courts; it does not purport to be
made under that power, or for the
performance of that duty. The
subject of taxation, indeed, is a mat-
ter of procedure in the provincial
courts, but that is all. The fund
to be raised by that taxation is car-
ried to the purposes mentioned in
the 2nd sub-see, sec. 92. It is
made part of the general consoli-
dated revenue of the province. It
B.N.A. ACT, s. 92 (14)—STARTING PROPOSITION.
321
therefore is precisely within the
words ‘taxation in order to the
raising of a revenue for provincial
purposes.’ If it should greatly ex-
ceed the cost of the administration
of justice, still it is to be raised
and applied to general provincial
purposes, and it is not more
specially applicable for the ad-
ministration of justice than any
other part of the general provincial
revenue.” [T he above is the second
part ; for ﬁrst part of this judgment
see ante, p. 119 ; and for third part,
s. 65, p. 32.]
Patterson, J ., said, in SCHOOL-
BRED v. CLARKE, June 12, 1890,
17 S. C. R. p. 277: “The starting
proposition, to the overlooking of
which I attribute much, if not all,
the difficulty that to some judges
has seemed to attend the working
of the Act, is that by the B. N. A.
Act the constitution and organi-
zation of provincial courts, both
of civil and criminal jurisdiction,
and including procedure in civil
matters in those courts, is a func-
tion of the provincial legislature.
There is no a priori presumption
that the Parliament of Canada, in
passing an Act upon a subject
within its exclusive jurisdiction, in-
tends to encroach upon the exclu-
sive jurisdiction of the province.
If an Act is ambiguous in this par-
ticular, I take it that the construc-
tion to be preferred is that which
accords with the declaration of our
constitutional charter. Among the
subjects exclusively assigned by
sec. 91 to the Parliament of Canada
are interest, bills of exchange and
promissory notes, and bankruptcy
and insolvency. We should be
surprised to ﬁnd that Parliament,
assuming to enact that an action
on a bill of exchange should always
be tried by a judge without a jury,
or tried at bar before the full court,
or that interest on a promissory
note must always be computed by
the judge personally, and not by a
master or referee. We should be
equally unprepared to ﬁnd it
S 2340.
enacted that when a provincial ECHOOLBRED @-
court was administering an insol-
vency or bankruptcy Act, the func-
tions and powers of its officers were
to be different from those exercised ‘
in an administration action or other
action within its ordinary jurisdic-
tion. Such an enactment would
amount to the constitution and
organization of the court by the
Dominion Parliament, and not by
the local legislature. Yet this is
what I understand to be contended
is the intention and eﬁect of the
Winding-Up Act [R. S. C. c. 129].
In my opinion, the Act was never
so intended, but, on the contrary,
the effort of the Parliament has
been to leave the court to perform
its functions by means of its
ordinary machinery and by its
ordinary procedure.”
In that case it was ordered
that the Union Fire Insurance
should be wound up, and that a
certain person should be perma-
nent liquidator on his furnishing
security to the satisfaction of the
master in ordinary of the Supreme
Court of Ontario. The appellant
objected to this order on the ground
that the Dominion Winding-Up
Act was not applicable to a com-
pany incorporated by the Ontario
Legislature, and, alternatively, that
the order was defective in leaving
the security of the liquidator to the
master, as the court could not dele-
gate the authority conferred on it
by the Act. But it was held by
Sir WV. Ritchie, C.J., F ournier,
Taschereau, Gwynne, and Patter-
son, J J ., that the Dominion Wind-
ing-Up Act, R. S. C. c. 129., was
applicable to a provincially incor-
porated company. See also Crombie
v. Jackson, 1874, 36 U. C. Q.B. 575.
So long as there is no legislation
of the Dominion Parliament in
existence, the provincial legislatures
may legislate on subjects which
might come under sec. 91. Att.-
Gen. of Ontario v. Att.-Gen. for
the Dominion of Canada, in C. A.
Ont, 9 May 1893, 20 O. A. R.
489; in P. C., reversing the de-
X
LARKE.
322 B.N.A. ACT, s. 92 (14).—PENAL LAWS oF DOM;
Porn v.
GRIFFITH.
SEWELL v.
BRITISH Co—
LrmBIA TOWING
Co.
cision below, Feb. 24, [1894] A. C.
189; 63 L. J. P. C. 59; '70 L. T.
538. [See sub-sec. 13, sec. 92.]
In Porn v. GRIFFITH, 14
‘March 1872, 16 L. C. J. 171,
Ramsay, J .A., said—dealing with
a conviction under sec. 4 of the
Quebec License Act, 34 Vict. c. 2.,
and the constitutionality of the
Act in that it prescribes criminal
procedure :—“ Whatever may be
the deﬁnition of a crime, I would
remind those who lean too much
upon deﬁnitions, of their danger;
it will not be denied that, in one
sense of the word, the Act of which
appellant is accused is a crime; but
it is equally plain that it is not a
crime in the sense of sub-sec. 27,
sec. 91, of the B. N. A. Act. Now
if the signiﬁcation attached to the
word ‘ criminal ’ is restricted, when
referring to law in this sub-section,
why should it be used in a different
sense when applied to procedure?
It cannot be presumed that in one
short paragraph, particularly a para-
graph of an enumeration of powers,
the legislature should have intended
to apply two different meanings to
the same word, especially when by
doing so they would be transferring
the legislation with regard to a
purely local matter to Parliament.
The rule is all the other way. Sub-
sec. 16 of sec. 92 reserves to the
local legislature generally, the right
to make laws affecting all matters
of a merely local or private nature
in the province. What can be
more local than the procedure to
give force to a local law P If this
view be correct, it is not a question
of clashing, and the provision of
sec. 91, giving superior authority
to the enumeration of the powers
of Parliament, does not apply. The
powers are perfectly distinct. Par-
liament makes the laws of proce_
dure affecting the criminal law which
it enacts; each of the legislatures
make the laws of procedure affect-
ing the penal laws which they en-
act respectively. I am, therefore,
of opinion that the appeal does not
lie under the Dominion Act, 32 8t
.33 Vict. c. 31. s. 65.”
Another judge has been cited on
this point, namely, Sanborn, J.,
who said: “ Where the power is
given by the B. N. A. Act to
the Parliament of the Dominion
to provide procedure in crimi-
nal matters, I understand re-
ference to be had to the general
criminal law, comprised in the
Criminal Statutes of the Dominion
and in the Common Law. This
view is conﬁrmed by the Criminal
Procedure Act, which has no refer-
ence whatever to local penal laws,
but to laws in force throughout
the Dominion.” . “The B.
N. A. Act gives the legislatures
of the several provinces power over
shop, saloon, and tavern licenses,
and to impose ﬁne, penalty, or im-
prisonment for enforcing any law
of the province made in relation to
any matter coming within any of
the classes of subjects enumerated
amongst their powers. Where
power is given by statute to im—
pose a penalty, it implies power to
enforce it.” “ The B. N. A.
Act must be understood to have
given this power to the several
provinces. Any other view would
give the legislature of a province
less power than a municipality
which such legislature can create.
It would be contrary to the
manifest intention of the 1111-
perial Parliament in allocating the
respective powers which each legis-
lature should possess.”
In SEWELL v. BRITISH COLUM-
BIA TOWING Co.-——“ The Thrasher
case ”——18 June 1883, Cassels’
Digest, 1893, p. 480, the vari-
ous questions were put under
sec. 52 of S. & E. Court Act to
the Supreme Court by Order in
Council to determine the validity
of the Act 42 Vict. c. [2., by the
British Columbia Legislature, and
the answers to the questions were all
in the afﬁrmative, to the eifect that
the legislature had power to legis—
late in regard to the procedure
B.N.A. ACT, s. 92 (14).—-PROVINCIAL J UDICATURE.
323
in thevcourts of that province, and
could make ~rules to govern the
procedure in all matters which
came within the legislative juris-
diction of the provincial legislature,
and could delegate this power to
the Lieutenant-Governor in Coun-
cil; and that the Judicial District
Act, 187 9, 42 Vict, c. 12.,indicating
the sections of the province wherein
the judges should reside, was valid,
and did apply to the judges ap-
pointed before 1879. See The
Att.-Gen. of Canada r. Flint, 12
SC. N. S. (3 Russ. & Geld.),453;
Jan. 16, 1884, 16 S. C. R. 707.
REG. r. WAsoN, March 4, 1890,
17 O. A. R. 221 [before Hagarty,
‘C.J., Burton, Osler, and Maclen-
nan, JJ.A.], was an appeal under
51 Vict. (Ont.) c. 32., which
enacted that persons supplying
skimmed milk, &c., to a butter
manufacturer without notifying the
same would be liable on convic-
tion to be ﬁned or imprisoned with
hard labour. It was argued for
the Crown that if the objection held
good that the Act was ultra rz'res
because it trenched on the criminal
law, nothing whatever could be
done towards the execution of the
law unless the Dominion choose to
provide procedure ; and thus the in-
credible result would be reached that
a sovereign legislative power might
be left absolutely impotent, being
dependent upon another legislative
power for the machinery without
which its law must remain inopera-
tive. A conclusion so monstrous
should be rejected. [Extracts from
the judgments are given ante,
p. 106.]
In Re COUNTY CoURTs or BRI-
TISH CoLUMBIA, Dec. 13, 1892,
21 S. C. R. 446, it was held by
Strong, Gwynne, Patterson (and
Taschereau with some doubt),
J J ., that the Acts of the Legis-
lature of British Columbia, C. S.
B. C. c. 25. 14, authorizing
any county court judge to act as
such in certain cases in a district
other than that for which he was
appointed, and the 53 Vict. c. 8.
s. 9, which provides that until a
county com't judge of Kootenay is
appointed the judge of the county
court of Yale shall act as such, were
iutra tires of the British Columbia
Legislature. This was a special
case referred to S. C. under sec. 4,
54 & 55 Vict. c. 25. Strong, J.,
after saying these Acts were z'utra
'cz'res, said: “ My reasons for this
opinion are that such legislation
was a valid exercise of the power
conferred upon the provinces by
sub-sec. 14, sec. 92.” “ The
powers of the Federal Government
respecting provincial courts are
limited to the appointment and
payment of the judges of those
courts and to the regulation of their
procedure in criminal matters. The
jurisdiction of Parliament to legis-
late as regards the jurisdiction of
the provincial courts is, I consider,
excluded by sub-sec. 14, sec. 92,
inasmuch as the constitution, main-
tenance, and organization of pro—
vincial courts plainly includes the
power to deﬁne the urisdiction of
such courts territorially as well as
in other respects. This seems to
me too plain to require demonstra-
tion. Then, if the jurisdiction of
the courts is to be deﬁned by the
provincial legislatures, that must
necessarily also involve the juris-
diction of the judges who constitute
such courts. If this were not so, it
would be necessary, whenever the
territorial jurisdiction of a county
court was altered or enlarged, that
recourse should be had to federal
legislation under the general re-
served powers of Parliament, to
sanction the change, or that the
judges should be re-appointed by a
new commission. I think it clear
that Parliament in such a matter
could not legislate without infring-
ing the exclusive powers of the
provincial legislature, and the
notion that a new commission
would be requisite in every case of
an enlargement of the territorial
jurisdiction of any of the courts in
Re COUNTY
CoUR'rs or
BR'I'I‘ISII Co-
LUMBIA.
REG. 9. WAsoN.
x2
324 B.N.A. ACT, s. 92 (15).—PUNISHMENT AND CRIME.
Re COUNTY
CoURTs OF
BRITISH Co-
LUMBIA.
QUEEN 'v.
BENNETT.
HoDeE v. THE
QUEEN.
question is too preposterous to be
entertained. It must follow, there-
fore, that the whole power of legis-
lating, as regards the jurisdiction
of provincial courts, is restricted
to the provincial legislatures.” His
Lordship added he did not regard
the Dominion statute, known the “ Speedy Trials,” B. S. C. 1886,
c. 175., amended by Act 51 Vict.
c. 47., as a statute conferring juris-
diction, but rather as an exercise
of the power of Parliament to regu-
late criminal procedure.
QUEEN v. BENNETT, Ontario,
Oct. 20, 1882, 1 O. R. 445. There
Cameron, J ., said: “From the
absence of express provision in the
B. N. A. Act, and the vesting in
the local legislature of the province
the exclusive power to make laws
in relation to the administration of
justice in the province, including
the constitution, maintenance, and
organization of provincial courts,
both of civil and criminal jurisdic-
tion, it was conceived the power to
pass such a law [an Act of On-
tario giving power to the Lieu-
tenant-Governor to appoint police
magistrates] must rest exclusively
with the local legislature. . . .
The oﬂice of police magistrate is
the simple creation of an Act of
the legislature, and in creating the
otﬁce it had, when not in conﬂict
with the express or implied powers
of such legislature, or in excess
thereof, the right to determine how
the appointment should be made.
The power of appointment under
the Act in question is given to the
Lieutenant-Governor in Council,
as the power was given under c. 101.
of the C. S. C. to the Governor-
General in Council to appoint
magistrates or justices of the peace
under that Act. . . In my opinion,
justices of the peace are part of the
system of the administration of
justice in the province, and, there-
fore, under sub-sec. 14, sec. 92, the
right to legislate as to their ap-
pointment is expressly conferred
upon the legislature of the province,
and, therefore, Mr. Young was
duly appointed police magistrate
for the county of Halton.”
(15.) The imposition of punishment, by ﬁne, penalty,
or imprisonment, for enforcing any law of
the province made in relation to any matter
coming within any of the classes of subjects
enumerated in this section.1
1 A local legislature can enforce
laws by ﬁne, penalty, or imprison-
ment, without declaring any breach
of those laws a crime. Minister
of Justice, 2 Jan. 187 3. Prov. Leg.
187 7, p. 715.
In HODGE 2'. THE QUEEN, in
Ct. App., Ont., 30 June 1882, 7 O.
A. By. 246; in P. C. Dec. 15, 1883,
9 App. Cas. 117; 53 L. J. P. C. l;
50 L. T. 301 [sub-sec. 9, sec. 92],
the Judicial Committee upheld the
validity of the Liquor License Act,
R. S. O. 1877, c. 181., by which
the Ontario Legislature appointed
license commissioners to actin each
municipality, and delegated to them
to pass resolutions, or bye-laws, or
rules, to deﬁne the conditions and
qualiﬁcations requisite for obtain-
ing tavern or shop licenses for sale
by retail of spirituous liquors
within the municipality ; for limit-
ing the number of licenses; for
declaring that a limited number of
tavern licenses may be exempt from
having all the accommodation re-
quired by law; and to impose
penalties by way of ﬁne, and, on
non-payment, imprisonment with
hard labour, as a punishment for
B.N.A. ACT, s. 92 (15).—EXPOUNDING A CONSTITN.
325
infraction of their resolutions. The
Judicial Committee held the Act
dealt With “matters of a merely
local nature in the province, and to
be similar to, though not identical
in all respects with, the powers then
belonging to municipal institutions
under the previously existing laws
passed by the local parliament,”
and that it did not interfere with
the Canada Temperance Act, 1878,
the validity of which was aﬁirmed
in Russell 1*. The Queen, S. C. N. B.,
1881; in P. C. June 23, 1882, 7
App. Cas. 829; 51 L. J. P. C. 77;
46 L. T. 889 [sub-sec. 9, sec. 92].
The Judicial Committee said [9
App. Cas. p. 130] the principle
which that case [Russell’s] and the
case of the Citizens’ Insurance Co.
'0. Parsons, in courts below, 43 U. C.
Q. B. 261; 4 O. A. R. 96; 4 S.
C. R. 215; in P. C. Nov. 26, 1881,
7 App. Cas. 96; 51 L. J. P. C. 11;
45 L. T. '721 [sub-sec. 13, sec. 92],
“illustrate is, that subjects which
in one aspect and for one purpose
fall within sec. 92, may in another
aspect and for another purpose
fall within sec. 91.” [See ante,
p. 141.] And they being clearly
of opinion (ante, p. 142) “ that
the resolutions were merely in the
nature of municipal or police regu-
lations in relation to licensed
houses, and interfering with liberty
of action to the extent only that
was necessary to prevent disorder
and the abuses of liquor licenses.”
. “ If, as their Lordships have
decided, the subjects of legislation
come within the powers of the
provincial legislature, then sub-sec.
15 of sec. 92 is applicable to the
case before us, and is not in conﬂict
with sub-sec. 27 of sec. 91. Under
these very general terms, ‘ the impo-
sition of punishment by imprison-
ment for enforcing any law,’ it
seems to their Lordships that there
is imparted an authority to add to
the conﬁnement or restraint in
prison that which is generally
incident to it—‘hard labour’; in
other words, that ‘imprisonment’
there means restraint by conﬁne-
ment in a prison, with or without
its usual accompaniment ‘hard
labour.’ ”
The Minister of Justice con-
sidered, 8 May 1880, that the British
Columbia Legislature was within its
rights in passing an Act which
empowered the Lieutenant-Gover-
nor to make rules of court for regu-
lating the sitting of the court rather
than for the judges to do it. [See
Reg. 1'. Amer, 42 U. C. Q. B. 391.]
Prov. Leg, 1886, 809.
In REG. 1*. FRAWLEY (same ques-
tion as in Hodge 1‘. Reg), 7 O.
A. R. p. 268, Spragge, J.A., said:
“ There is much in the judgment of
Marshall, C.J., in McCulloch 'v. S.
Maryland, S.C.U.S.(4 Wheat.) 316,
which is apposite to this case.v The
ﬁrst and the one material question as
bearing on this case, was, Whether it
was in the power of Congress to esta-
blish a national bank, the Constitu-
tion, in the powers enumerated, not
giving authority to do so. The
learned Chief Justice also, in the
words of Vattel, says: ‘ In consider-
ing this question, then, we must
never forget that it is a constitu-
tion we are expounding.’ ” His
Lordship then said there is much
more in that judgment bearing
on sub-sec.15, sec. 92, and con-
tinued: “The point, shortly, is
that the provincial legislatures had,
as incident to their constitution, the
power of enforcing the laws made
by them in relation to any matter
coming within any of the classes of
subjects assigned to their jurisdic-
tion, and to make laws for that
purpose, and did not need the ex-
press power given by sub-sec. 15.
I think it is sound in principle, and
that the oiﬁce of clause 15 is to give
express sanction to it; and at the
same time to prescribe in general
and comprehensive terms the nature
of the punishment by which those
laws might be enforced. The
learned Chief Justice Marshall
puts thus pithily the powers of
the sovereignty as divided be-
tween the government of the
Honor: v. THE
QUEEN.
Rue. v. FRAW-
LEY.
326 B.N.A. ACT, s. 92 (15).—HAPPINESS or PROVINCE.
REG. 2). FRAW-
Union and the governments of the
States: ‘ They are each sovereign
with respect to the objects com-
mitted to it; and neither sovereign
with respect to the objects commit-
ted to the other.” . . Mr.
Justice Spragge continued: “The
powers assigned by the Confedera-
tion Act to the provincial legisla-
ture are large and various, and it is
not too much to say that it is a
reasonable contention that legisla-
tures entrusted with such powers,
on the due execution of which the
happiness and prosperity of the pro-
vinces so largely depends, must also
be entrusted with ample means for
their execution. The learned Chief
Justice had to meet this ditﬁculty,
that the Constitution of the United
States does not confer upon Con-
gress power, as the Confederation
Act confers upon the provinces
power, to make laws in relation to
the enumerated classes of subjects ;
but only such power as may be
‘ necessary and proper ’ for carrying
them into execution. After com-
menting on and interpreting the
language used, the Chief Justice
proceeds : ‘ So, with respect to the
whole penal code of the United
States, whence arises the power to
punish in cases not prescribed by
the Constitution? 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 power of punishment
appertains to sovereignty, and
may be exercised whenever the
sovereign has a right to act as inci-
dental to its constitutional powers.
It is a means for carrying into exe-
cution all sovereign powers, and
may be used, although not indis-
pensably necessary. It is a right
incidental to the power, and con-
ducive to its beneﬁcial exercise.’ I
will conclude my citations from the
judgment of the learned Chief
Justice with this apposite quotation :
‘ We admit, as all must admit, that
the powers of the Government are
limited, and that its limits are not
to be transcended. But we think
the sound construction of the Con-
stitution must allow to the national
legislature that discretion, with
respect to the means by which the
powers it confers are to be carried
into execution, which will enable
that body to perform the high
duties assigned to it in the manner
most beneﬁcial to the people. Let
the end be legitimate; let it be
within the scope of the Constitu-
tion, and all means which are appro-
priate, which are plainly adapted to
that end, which are not prohibited,
but consist with the letter and
spirit of the Constitution, are consti-
tutional.’ I make no apology for
quoting so largely from the judg-
ment of Chief Justice Marshall. It
enunciates clearly and forcibly con—
stitutional doctrines which, from
the nature of the Constitution of
the United States, have been neces-
sarily presented to the consideration
of the judges of that country more
than has been the case in England,
and which, since confederation,have
an important bearing upon the
powers of the Dominion and pro-
vincial legislatures. I may be
allowed to add that it appears to
me these implied powers, or powers
incident to the principal power con-
ferred, have their root in the rule
often enunciated, that where power
is conferred to do an act or several
acts, the power conferred in terms
carries with it by implication all the
powers that are necessary to the
due and effectual execution of the
principal power conferred. In my
judgment, however, it is not neces-
sary to resort to the doctrine of
implied power, for I think that
the language of sub-sec. 15, giving
power to make laws for enforcing
provincial law by, inter alia, ‘ im-
prisonment,’ found where it is in a
charter of government, and looking
at the law as it then stood, and to
the statutes and circumstances to
which I have adverted, must be
interpreted as ‘conferring power to
B.N.A. ACT, s. 92 (15).—-LIM1TATION ON DOM. & PROV. 327
enforce provincial laws by imprison-
ment with hard labour.”
In REG. '0. HODGE, 7 O. A.
R. p. 278, Burton, J.A., said:
“ It is true that Parliament—the
United Kingdom Parliament—
gave both to the Dominion and
to the provinces the constitu-
tions under which we live; both
limited in extent, but both giving
representative institutions, and
giving to the legislatures elected in
‘the manner therein pointed out,
plenary powers of legislation within
their respective spheres as large
and as ample as those of the
Imperial Parliament itself. [See Sir
Barnes Peacock in Hodge r. The
Queen, ante, p. 142.] The legisla-
ture so elected has a delegated
authority it is true, but it is of the
same character as that of the Imperial
Parliament, who are collectively the
delegates of the whole people. If
these are powers which the Imperial
Parliament could have delegated,
then they can equally be so dele-
gated by the legislature of our own
province; if not, then it is un-
necessary to add that they cannot
be so dealt with by a provincial
legislature.”
In ATT.-GEN. or CANADA u.
ATT.-GEN. or ONTARIO [a question
tried under 52 Vict. S. O. c.
44)],1892—3, 20 O. R. 222; 19 O.
A. R. 31; 23 S. C. R. 458, it was
held that the Act, 51 Vict. (Ont.)
c. 5., purporting (sec. 2) to con-
fer on the Lieutenant-Governor
of the province of Ontario the
right of commuting and remitting
sentences for offences against the
laws of the province or offences
over which the legislative authority
of the province extends, subject to
the condition that the legislature had
power to revoke it, was not an ex-
cess of jurisdiction.
Strong, C.J., said: “The 15th
sub-sec. of sec. 92 of the B. N. A.
Act, and the decision in Hodge 'v.
The Queen [30 June 1882, '7
O. A. R. 246; in P. C. 15 Dec.
1883, 9 App. Cas. 117; 53 L. J.
P. C. 1; 50 L. T. 301; see ante,
p. 135], precludes the possibility of
any doubt as to the right of the
provincial legislatures to impose
punishment by ﬁne and imprison-
ment as sanctions for laws which
they had power to enact. The case
of the Receiver-General of New
Brunswick v. The Maritime Bank
[see sub-sec. 13, sec. 92] deﬁnitive-
ly establishes that the provincial
Lieutenant-Governor appointed by
the Governor-General under the
great seal of the Dominion, pur-
suant to the provisions of the
B.N.A. Act, represents the Queen.”
He continued: Had he been com-
pelled to decide it,.,xhe would have
held “the power of commuting
sentences ” was nothing less than
the power to pardon. “By the
law of the Constitution, or, in other
words, by the common law of
England, the prerogative of mercy
is vested in the Crown not merely
as regards the territorial limits of
the United Kingdom, but through-
out the whole of Her Majesty’s
dominions. The authority to
exercise the prerogative may be
delegated to Viceroys and colonial
Governors representing the Crown.
Such delegation, whatever may be
the conventional usage established
on grounds of political expediency
—a matter which has nothing to do
with the legal question—cannot,
however, in any way exclude the
power and authority of the Crown
to exercise the prerogative directly
by pardoning an offence committed
anywhere within the Queen’s do-
minions. I take it to be the
invariable practice, in the case of
colonial Governors, to delegate to
them the authority to pardon in
express terms, either by the com-
mission under the great seal, or in
the instructions communicated to
them by the Crown. This being
so, and this practice having pre-
vailed, as far as I can discover,
universally, and for a long series of
years, I should have thought that it
at least implied that in the opinion
ATT.-GEN. OF
CANADA 9.
AT'I‘.-GEN. or
ONTARIO.
328
B.N.A. AoT, s. 92 (15).-—POWER TO PAEnoN.
ATT.-GEN. or
CANADA 2).
ATT.-G'EN. OF
ONTARIO.
DoBIE 'v. THE
TEMPORALITIES
BOARD.
of the law officers of the Crown—
an authority on such a point second
only to that of a judicial decision——
that the prerogative of pardoning
offences was not incidental to the
oﬁice of a colonial Governor, and
could only be executed by such an
ofﬁcer in the absence of legislative
authority under powers conferred
by the Crown.” The next ques-
tion is, “ In what legislature does
the power of conferring this pre-
rogative of pardoning by legislation
upon a representative of the Crown,
such as a colonial Governor, reside P
Is it possessed by any colonial
legislature, including in that term,
under our system of Federal
Government, as well the Domi-
nion Parliament as a provincial
legislature, or is it conﬁned to the
Imperial Parliament? That the
Crown, although it may delegate to
its representative the exercise of
certain prerogatives, cannot volun-
tarily divest itself of them, seems to
be well recognised constitutional
canon. Upon this point of the
locality of the legislative power to
interfere with the royal prerogative,
I should have thought that the case
of Cushing 'v. Dupuy [see ante, p.
80] and Re Marois, in Q. B., Que-
bec, 8 Feb. 1862, 15 M00. P. C.
189; 10 W. R. 326; 8 Jur. N.S.
268 [Act in question there being
34 Geo. 3. c. 6. of L. C., appealable
value], decided by the Judicial
Committee with reference to the
jurisdiction of a colonial legislature
to limit appeals to the Queen in
Council, would, if not direct
authorities, have had at least a very
material application to the present
question. The udgments delivered
in the S. C. of Victoria in the case
of Chun Teong Toy 'v. Musgrove,
before Higinbotham, C.J . , Williams,
Holroyd, Kerferd, A’Beckett, and
Wrenfordsley, J J., Sept. 3, 1888,
14 V. L. R. 349, might also have
afforded us great assistance”; but
these questions his Lordship did not
decide.
Chun Teong Toy '0. Musgrove
was appealed to the Judicial Com-
mittee, and it was there held
that in such a case it was not
necessary to decide the question
what rights the Victorian Govern-
ment had under its constitution
derived from the Crown, it being
sufﬁcient for the decision of the
case that an alien had no legal right
enforceable by action to enter
British territory. [See March 18,
[1891] A. C. p. 283; 60 L. J. P.
C. 28; 64 L. T. 378.]
(16.) Generally, all matters of a merely local or
private nature in the province.1
1 An Act of Parliament created
for two provinces and for ad-
vantage to both, such an Act can
only be altered by a parliament
having power to legislate for both
the provinces, which is the Do~
minion.
In DOBIE v. THE TEMPORALITIES
BOARD, in Q. B. Quebec, 19 June
1880, 26 L. C. J. 170; in P. C.
Jan. 21, 1882, 7 App. Cas. 136;
51 L. J. P. C. 26; 46 L. T. 1,
the Judicial Committee held that an
Act of the Quebec Legislature, 38
Vict. c. 64., which attempted to
repeal an Act of the Parliament of
the old province of Canada, and
which dealt with funds and pro-
perty existing in both Ontario
and Quebec, and belonging to a
church (the Presbyterian Church
of Canada in connection with the
Church of Scotland) the terri-
torial limits of which embraced
both provinces, and the govern-
ment of which was not carried on
in one province alone, as ultra
wires and invalid. Also that an
Act by Ontario and another by
Quebec, unanimously agreeing to
do this thing, would not be valid.
B.N.A. AoT, S. 92- (16).—D()MINION RAILWAYS. 329
It required a Dominion Act. See
sec. 13, sub-sec. 92.
A local Act cannot transfer to
another company the property of
a railway company incorporated by
Parliament. See Bourgoin 1'. Mon-
treal, Ottawa, and Occidental
Railway, 3 Legal News, 185;
Wheeler’s P. C. Law, 108; in
P. C. Feb. 26, 1880, 5 App. Cas.
381; 49 L. J. P. C. 68. It re-
quired an Act of the Dominion
Parliament before such transfer
could be validated.
In BARKER v. CITY OF FREDE-
RIcToN, 19 S. C. N. B. (3 Pugs.
and Bur.) 139, Allen, C.J., said:
“Had this Act [the Canada
Temperance Act, 1878] prohibited
the sale of liquor, instead of
merely restricting and regulating
it, I should have had no doubt
about the power of Parliament
to pass such an Act; but I
think an Act, which in effect
authorizes the inhabitants of each
town or parish to regulate the sale
of liquor, and to direct by whom,
for what purpose, and under what
conditions spirituous liquors may
be sold therein, deals with matters
_ of a merely local nature, which by
the terms of the 16th sub-sec,
sec. 92, of the B. N. A. Act, are
within the exclusive control of the
local legislature.”
But in RUssELL v. THE QUEEN,
in S. C. N.B. 1881, 20 S. C. N. B.
(4 Pugs. and B.) 536; in P. C. June
23, 1882, '7 App. Cas. 829, p. 841;
51 L. J. P. C. 77; 46 L. T. 889
[see sub-sec. 9], the Judicial
Committee said they could not
concur in that view; that in
statutes of that kind the legisla-
tion is general, and the provi-
sions for the special application
of it to particular places does not
alter its character [see end of judg-
ment given sub-sec. 9, ante, p. 135];
that it did not convert the Act
itself into legislation in relation to
local matters.
In HODGE v. THE QUEEN,
30 June 1882, 7 O. A. R. 246;
in P. C. Dec. 15, 1883, 9 App.
Cas. 117; 53 L. J. P. C. l; 50 L.
T. 301 [see sub-sec. 9, sec. 92],
the Judicial Committee upheld
the power of the provincial legis-
lature of Ontario to delegate to
the licensing commissioners for
each municipality within the pro-
vince the making rules for regula-
ting and keeping under control the
business of tavern keeper or of shops
where spirituous liquor was sold
by retail, and this to the extent of
awarding a ﬁne, with the condition
attached that, if not paid, or if not
suﬂicient distress, imprisonment
with hard labour followed.
During the argument in the Pro-
hibition Liquor case, August lst,
1895, Lord Herschell said the case
was decided under this sub-section,
coupled with sub-secs. 8 and 15.
Judgment of the Lords of the
Judicial Committee in L’UNIoN
ST. JACQUES DE MONTREAL DAME JULIE BELISLE, 15 L. C. J.
212; in Q. B. Quebec, 20 Sept.
1872; in P. C. July 8, 1874,
L.R.6 P. C. 31; 31 L. J. 111;
22 W. R. 933.
Lord Selborne [there being also
present Sir James W. Colvile,
Sir Barnes Peacock, Sir Montague
E. Smith, and Sir Robert P.
Collier] delivered the following
judgment :—
“The sole question in this
appeal is this,-—whether the sub
ject~matter of the provincial Act,
the 33 Vict. c. 58., is one of
those which by the 91st section
of the Dominion Act are reserved
exclusively for legislation by
the Dominion Legislature. The
scheme of the 91st and 92nd sec-
tions is this. By the 91st section
some matters,——and their Lordships
may do well to assume, for the
argument’s sake, that they are
all matters except those afterwards
dealt with by the 92nd section—
their Lordships do not decide it,
HODGE 2:. Tim
QUEEN.
BARKER v. CITY
or FREDERIC-
TON.
L’UNIoN ST.
JACQUES DE
MONTREAL v.
DAME JULIE
BELISLE.
RUssELL v. Tun
QUEEN.
330 B.N.A. ACT, s. 92 (16).-_RESERVATION FOR DOM.
L’UNIoN ST.
JACQUES DE
MONTREAL v.
DAME JULIE
BELIsLE.
but for the argument’s sake they
will assume it,—eertain matters,
being upon that assumption all
those which are not mentioned in
the 92nd section, are reserved for
the exclusive legislation of the
Parliament of Canada, called the
Dominion Parliament; but beyond
controversy there are certain other
matters, not only not reserved for
the Dominion Parliament, but
assigned to the exclusive power
and competency of the provincial
legislature in each province.
Among those the last is thus
expressed :—-‘ Generally all matters
of a merely local or private nature
in the province.’ If there is no-
thing to control that in the 91st
section, it would seem manifest
that the subject-matter of this Act,
the 33 Vict. c. 58., is a matter of a
merely local or private nature in
the province, because it relates to
a benevolent or beneﬁt society in-
corporated in the city of Montreal
within the province, which appears
to consist exclusively of members
who would be subject primd facie
to the control of the provincial
legislature. This Act deals solely
with the affairs of that particular
society, and in this manner: taking
notice of a certain state of em—
barrassment resulting from what
it describes in substance as im-
provident regulations of the so-
ciety, it imposes a forced commu-
tation of their existing rights
upon two widows, who at the time
when that Act was passed were
annuitants of the society under its
rules, reserving to them the rights
so cut down, in the future possible
event of the improvement up to a
certain point of the affairs of the
association. Clearly this matter is
private; clearly it is local, so far as
locality is to be considered, because
it is in the province and in the
city of Montreal; and unless,
therefore, the general effect of
that head of sec. 92 is for this
purpose qualiﬁed by something in
sec. 91, it is a matter not only
within the competency, but within
the exclusive competency of the
provincial legislature. Now see.
9] qualiﬁes it undoubtedly, if it
be within any one of the different
classes of subjects there specially
enumerated; because the last and
concluding words of sec. 91 are,—
‘ And any matter coming within
any of the classes of subjects
enumerated in this section shall
not be deemed to come within the
class of matters of a local or
private nature comprised in the
enumeration of the classes of sub-
jects by this Act assigned exclu-
sively to the legislatures of the
provinces.’ But the onus is on
the respondent to show that this,
being in itself of a local or private
nature, does also come within one
or more of the classes of subjects
specially enumerated in the 91st
section.
“Now it has not been alleged
that it comes within any other
class of the subjects so enumerated
except the 2lst, ‘Bankruptcy and
insolvency’; and the question
therefore is, whether this is a
matter coming under that class 21,
of bankruptcy and insolvency?
Their Lordships observe that the
scheme of enumeration in that
section is, to mention various cate-
gories of general subjects which
may be dealt with by legislation.
There is no indication in any
instance of anything being con-
templated, except what may be
properly described as general legis-
lation; such legislation as is well
expressed by Mr. Justice Caron
when he speaks of the general laws
governing Faillite, bankruptcy
and insolvency, all which are well
known legal terms expressing
systems of legislation with which
the subjects of this country, and
probably of most other civilized
countries, are perfectly familiar.
The words describe in their known
legal sense provisions made by law
for the administration of the
estates of persons who may be-
come bankrupt or insolvent, ac-
cording to rules and deﬁnitions
B.N.A. AcT, S. 92 (16).-—L()CAL socIETIEs.
331
prescribed by law, including, of
course, the conditions in which
that law is to be brought into
operation, the manner in which it
is to be brought into operation,
and the effect of its operation.
Well, no such general law cover-
ing this particular association is
alleged ever to have been passed by
the Dominion. The hypothesis
was suggested in argument by
Mr. Benjamin, who certainly ar-
gued this case with his usual
ingenuity and force, of a law
having been previously passed by
the Dominion Legislature, to the
effect that any association of this
particular kind throughout the
Dominion, on certain speciﬁed
conditions assumed to be exactly
those which appear upon the face
of this statute, should thereupon,
z'pso facto, fall under the legal
administration in bankruptcy or
insolvency. Their Lordships are
by no means prepared to say that,
if any such law as that had been
passed by the Dominion Legisla-
ture, it would have been beyond
their competency; ' nor that, if it
had been so passed, it would have
been within’ the competency of the
provincial legislature afterwards to
take a particular association out of
the scope of a general law of that
kind, so competently passed by the
authority which had power to deal
with bankruptcy and insolvency.
But no such law ever has been
passed; and to suggest the possi—
bility of such a law as a reason
why the power of the provincial
legislature over this local and pri-
vate association should be in abey-
ance or altogether taken away, is
to make a suggestion which, if
followed up to its consequences,
would go very far to destroy that ‘
power in all cases.
“,It was suggested, perhaps not
very accurately, in the course of
the argument, that upon the same
principle no part of the land in the
province upon the sea coast could
be 'dealt with‘, because, by possi-
bility, it might be required for a
lighthouse, and an Act might be
passed by the Dominion Legisla-
ture to make a lighthouse there.
That was not a happy illustration,
because the whole of the sea coast
is put within the exclusive cog-
nizance of the Dominion Legisla-
ture by another article; but the
principle of the illustration may be
transferred to article 7, which gives
to the Dominion the exclusive right
of legislating as to all matters com-
ing under the head of ‘ militia,
military and naval service, and de-
fence.’ Any part of the land in
the province of Quebec might be
taken by the Dominion Legislature
for the purpose of military defence;
and the argument is, if pushed to
its consequences, that because this
which has not been done as to some
particular land might possibly have
been done, therefore, it not having
been done, all power over that land,
and therefore over all the land in
the province, is taken away, so far
as relates to legislation concerning
matters of a merely local or pri-
vate nature. That, their Lordships
think, is neither a necessary or
reasonable, nor a just and proper
construction. The fact that this
particular society appears upon the
face of the provincial Act to have
been in a state of embarrassment,
and in such a ﬁnancial condition
that, unless relieved by legislation,
it might have been likely to come
to ruin, does not prove that it was,
in any legal sense, within the cate-
gory of insolvency. And in point
of fact the whole tendency of the
Act is to keep it out of that cate-
gory, and not to bring it into it.
The Act does not terminate the
company; it does not propose a
ﬁnal distribution of its assets on
the footing of insolvency or bank-
ruptcy ; it does not wind it up.
On the contrary, it contemplates
its going on, and possibly at some
future time recovering its pros-
perity, and then these creditors,
who seem on the face of the Act to
be somewhat summarily interfered
with, are to be reinstated.
L’UNIoN ST.
J AcQUEs DE
MONTREAL v. ‘
DAME JULIE
BE LISLE.
332
B.N.A. ACT, s. 93 (l).—SCHOOL QUESTION.
L’UNIoN ST.
JACQUES DE
MoNTREAL v.
DAME JULIE
BELIsLE.
QUIET v. BEG.
Legislation
respecting
education .
MAIIER 0. TOWN
or PORTLAND.
“ Their Lordships are clearly of
opinion that this is not an Act re-
latin g to bankruptcy and insolvency,
and will therefore humbly advise
Her Majesty that this appeal he
allowed, that the judgment of the
Court of Queen’s Bench (Canada)
ought to be reversed, and that the
suit be dismissed. There will be
no costs of this appeal.”
QUIET T. Res, Nov. 16, 1891,
19 S. C. B. 510; 17 O.A.R. 421;
17 O. B’. 615. The Dominion
Parliament passed an Act incor-
porating trustees, and giving them
authority to carry on the business
of the Upper Canada Bank, which
had become insolvent, so far as was
necessary for the winding up of
the same; and then, by a later Act,
33 Vict. c. 40., transferred all the
property of the bank vested in the
trustees to the Dominion Govern-
ment. Held that these Acts were
valid under sec. 91, either sub-
sec. 15 or 21; and that, further,
the property, being vested in the
Crown, was not liable to taxa-
tion under the Ontario Assessment
Act. Union St. Jacques v. Belisle,
July 8, 1874, [see above] was dis-
tinguished.
Education.
93. In and for each province, the legislature may
exclusively make laws in relation to education, subject
and according to the following provisions :—
(1.) Nothing in any such law shall prejudicially aﬁiect
any right or privilege with respect to denomi-
national schools which any class of persons
have by law in the province at the Union ;1
Ritchie, C.J., said, in MAHER
0. TOWN or PORTLAND, 1874, post,
this was intended to mean just what
it expresses, "in, that “ any,” that
is “ every,” class of persons “hav-
ing any rights or privileges with
respect to denominational schools,
whether such class should be one
of the numerous denominations of
Protestants or Roman Catholics,
should be protected in such rights.
If it had been intended that the
clause should have been limited in its
application to Roman Catholics and
Protestants only as dissentient one
from the other, and apply to schools
other than those usually understood
as denominational schools, the legis-
lature would have used some ex-
pression indicating such a particular
sense.” See post, p. 352.
(2.) All the powers, privileges, and duties at the
Union by law conferred and imposed in Upper
Canada on the separate schools and school
trustees of the Queen’s Roman Catholic sub-
jects shall be and the same are hereby ex-
tended to the dissentientschools of the Queen’s
B.N.A. AcT, S. 93 (3).—SEPARATE soHooLs.
333
Protestant and Roman Catholic subjects in
Quebec.1
1 Ritchie, C.J., said, in MAHER
v. TowN or PORTLAND, 1874 [see
Note, post], that the reference here
to separate and dissentient schools
is specially to schools of the Pro-
testant and Catholic; and it is
equally clear sub-sec. 3 applies only
to schools of a like character exist-
ing in any of the four provinces.
But he was at a loss to understand
why sub-secs. 2 and 3 should be held
to control or in any way limit or
affect a previous distinct enactment
—sub-sec. 1-~couched in plain and
unambiguous language.
(3.) Where in any province a system of separate or
dissentient schools exists by law1 at the Union
or is thereafter established by the legislature
of the province, an appeal shall lie to the
Governor-General in Council2 from any act
or decision of any provincial authority affect-
ing any right or privilege of the Protestant or
Roman Catholic minority of the Queen’s sub-
jects in relation to education.
1 In the Act of 1870, 33 Vict.
(Donr) c. 3. (affirmed by Imperial
Act, 34 & 35 Vict. c. 28.), creating
the province of Manitoba, the only
important diﬁi'erence between the
above section and that in the Mani-
toba Act [see p. 369, post] is that
in sub-sec. 1 (which is a similar
section to the above) the words
“by law” are followed by the
words “ or practice.” Manitoba
before the Union was not an inde-
pendent province with a constitu-
tion and a legislature of its own.
It formed part of the vast territories
which belonged to the Hudson Bay
Company, and was administered
by their agents. The population
of the whole of Manitoba in 1870
was 18,995, including 6,767 In-
dians, and in 1870 \Vinnipeg, a
city containing 25,642 in 1891,
contained only 203 inhabitants.
The Judicial Committee held, in
Barrett’s case, that the Manitoba
provincial legislature was within
its powers in passing the Public
Schools Act of 1890, which schools
were to be entirely non-sectarian
and supported by taxation, it in-
fringing no proved rights or privi-
leges of the Roman Catholics or
members of the Church of England.
See City of Winnipeg v Barrett
and Logan, July 14, [1892] A. C.
445; 61 L. J. P. C. 58; 67 L. T.
429; and post. Judgment delivered
by Lord Macnaghten.
2 The Judicial Committee de-
cided these words (lid not operate
to withdraw a question which in-
volved the legality of an Act of
the provincial Parliament of Maui-
toba from the jurisdiction of the
ordinary tribunals of the country.
But see Brophy "v. Att.-Gen. for
Manitoba,Jan. 29, [1895] A. C202.
\Vith regard to an Act respect-
ing the Bar of the province of
Quebec, 1886, c. 34., the Minister
of Justice (Thompson) says (16
July 1887) a communication had
been received from the McGill
University asking that the Act he
disallowed on the ground that
it discriminates against the Pro-
MARER 11. TOWN
or PORTLAND.
CITY OF VVIN-
NIPEG 2). BAR-
RETT AND
LoeAN.
BROPHY v.
ATT.-GEN. FOR
MANITOBA.
334 B.N.A. ACT, s. 93 (4)—THE PROVINCIAL BAR.
Protestant
Universities.
Schools. Opi-
nion of Minis-
ter of Justice.
te'stant universities and schools
of Quebec in respect to the admis-
sion of students to the study of the
law. The papers, however, showed
that the present General Council
of the Bar consisted of seven Roman
Catholics and four Protestants,
while the proportion according to
population ought to be six to one.
The. minister thought the Act, in
respect'of provisions to which this
objection is directed, was within
the legislative authority of the
province, and there was no good
reason to apprehend the Legisla-
ture of Quebec would deal illiberally
by the Protestant minority. He
therefore recommended the Act he
left to its operation. And, se-
condly, the minister said: If the
application which the university
proposes to make to the Legislature
of Quebec for relief is not enter-
tained, and a petition by way of
appeal is made to the Governor-
General in Council under sec. 93
B. N. A. Act, that the Governor-
General in Council would carefully
consider the question of His Ex-
cellency’s jurisdiction and that of
Parliament in the premises and the
merits of the case as presented
by such petition. Prov. Leg,
1888,57.
(4.) In case any such provincial law as from time to
time seems to the Governor-General in Council
requisite for the due execution of the pro-
visions of this section is not made, or in case
any decision of the Governor - General in
Council on any appeal under this section is
not duly executed by the proper provincial
authority in that behalf, then, and in every
such case, and as far only as the circumstances
of each case require, the Parliament of Canada
may make remedial laws for the due execution
of the provisions of this section and of any
decision of the Governor-General in Council
under this section.1
.ing the same. _
prior to and down to the time of
a 1 See Manitoba Act, post, p. 369.
The New Brunswick Legislature
passed, 17 May, a Common Schools
Act, 34 Vict. c. 21., in 1871. This
Act, sec. 1, repealed the ‘ Act of
' 21 Vict. c. 9. as to parish schools,
and also the 26 Vict. c. 7. amend-
It appeared that
union of the provinces of Canada,
Nova Scotia, and New Brunswick
under the B.N.A. Act, there existed
in the province of New Brunswick
certain parochial schools established
under the‘ 21 Vict. c. 9., an Act
of ‘the 1 local legislature. It was
claimed some of these were de-
nominational schools. The new
Act, 34 Vict. c. 21., provided
that any sum required for any dis-
trict above the sums provided by
the province and county should be
a charge upon the district and
raised on an assessment. Sec. 60
provided that all schools conducted
under the provisions of the Act
should be non-sectarian. This Act
was considered to injuriously affect
the rights of the Roman Catholic
community, and the action of Henry
Maher 2). Town of Portland was
raised by an cw parte application
B.N.A. ACT, s. 93 (4).--DENOMINATIONAL.
335
to require the Town of Portland
to show cause why a writ of cer-
tiorari should not issue to quash an
order of assessment made under the
Act. See post.
The law ofﬁcers of the Crown,
Coleridge and Jessel, 29 Nov.
1872, gave it as their opinion
“ That whatever may have been
the practical working of the annual
education grant in the province of
New Brunswick, the Roman Catho—
lies of that province had no such
rights, privileges, or schools as are
the subject of enactments in the
B. N. A. Act, 1867, see. 93. It is
of course quite possible that the
new statute of the provinces may
work in practice unfavourably to
this or that denomination therein,
and therefore to the Roman Catho-
lics, but we do not think that such
a state of things is enough to
bring into operation the restraining
powers, or the powers of appeal
to the Governor-General in Coun-
cil, and the powers of remedial
legislation in the Parliament of the
Dominion contained in the 93rd
section.”
On 20 Jan. 1872 the Minister of
Justice [John Macdonald] gave it
as his opinion that as the Act
applied to the whole school system
of New Brunswick and was not
specially applicable to denomi-
national schools, the Governor-
General had no right to intervene.
Prov. Leg. 453. On 4 March
1874 it was resolved by the New
Brunswick Legislature :—“ \Vhere-
as petitions numerously signed have
been presented to this House pray-
ing that such amendment may be
made in the Common School Act,
1871, as will secure to 'Her Ma-
jesty’s Roman Catholic subjects of
this province schools generally
known as ‘ separate schools.’ And
whereas this House continues to
hold the opinion that any system
of education under the control and
supervision of the State should
grant to all the people of the pro-
vince similar and equal rights with-
out distinction of class or creed.
And whereas by the provisions of
the British North America Act,
1867, if a system of separate
schools is established, it shall be
for ever thereafter be beyond the
power of the legislature to inter-
fere with or repeal the Acts creat-
ing such a system. And whereas
certain exclusive rights have been
vested in the legislature of this
province, guaranteed to it by the
terms and provisions of the British
North America Act, 1867, the en-
joyment of which is essential to
the welfare of this province and
the harmonious working of the
Constitution.
“Resolved, that after careful
consideration of the said petitions,
and while affirming that various im-
portant changes may advantageously
be made from time to time in the
Acts relating to education whereby
the burdens imposed by the said
Acts may be lightened or made to
fall more equit.bly, this House is
of opinion that no change in the
said Acts should be made whereby
special privileges in respect of
denominational education shall be
granted to any class of persons in
this province. Resolved, that in
the opinion of this House no Acts
should be done or passed whereby
the jurisdiction and powers of the
legislature established by the
British North America Act, 1867,
shall be impaired or curtailed
without the sanction of the people
of this province previously ex-
pressed at the polls, and, therefore,
resolved that this House regrets it
cannot‘ comply with the prayer of
the said petitions; and further re-
solved, that this House most re-
spectfully but ﬁrmly maintains and
submits that no Acts should be
done or passed at any time by the
Parliament of the United Kingdom
of Great Britain and Ireland, or by
the Parliament of the Dominion of
Canada, to impair, curtail, alter, or
withdraw the said rights, powers,
and jurisdictions, or any of them,
without the requisition or consent
of this legislature for that purpose
Itesolutions of
N.B. Legisla-
ture.
336
B.N.A. ACT, s. 93 (4) .—-NEW BRUNSWICK SCHOOLS.
Address voted
by Canadian
House of Com-
mons.
Earl Carnar-
von’s letter.
ﬁrst made or obtained and signiﬁed
by address from the legislature of
this province.”
An address was on 10 March
187 5 voted by the House of Com-
mons of the Dominion :—
“That in the opinion of this
House, legislation by the Parlia-
ment of the United Kingdom en-
croaching on any powers reserved
to any one of the provinces by the
British North America Act, 1867,
would be an infraction of the pro-
vincial constitutions, and that it
would be inexpedient and fraught
with danger to the autonomy of
each of the provinces for this
House to invite such legislation.
“ That on the 29th May 1872 the
House of Commons adopted the fol-
lowing resolution: -- This House
regrets that the School Act recently
passed in New Brunswick is un-
satisfactory to a portion of the
inhabitants of that province, and
hopes that it may be so modiﬁed
during the next session of the
Legislature of New Brunswick as
to remove any just ground of dis-
content that now exists. That
this House regrets that the hope
expressed in the said resolution has
not been realised. That we most
humbly pray that your Majesty
will be graciously pleased to use
the inﬂuence of your Majesty with
the Legislature of New Brunswick
to procure such a modiﬁcation of
the said Act as shall remove such
grounds of discontent.”
This address was forwarded to
Her Majesty, and the Earl of Car-
narvon, 18 Oct. 1875, after stating
this address was received by Her
Majesty, but he was not able to
advise Her Majesty to take any ac-
tion respecting it, said: “ (2) 1 con-
cur that legislation by the Imperial
Parliament curtailing the powers
vested in a province by the British
North America Act, 1867, would
be an undue interference with the
provincial constitutions, and with
the terms on which the provinces
consented to become members of
the Dominion. And holding as I
do this ‘opinion, while I cannot but
feel that if I were to recommend
the Queen to intervene directly in
this matter by advising that legis-
lature to legislate in any particular
direction, I might be deemed to
counsel an interference with the
system of government established
by the Act of Union not greatly
differing from that which the ad-
dress deprecates. (3) For this
reason I have not felt myself at
liberty to advise Her Majesty to
take any action. At the same time,
there can be no impropriety in my
expressing the strong hope which
I entertain that, as in other British
communities, the majority of the
population in New Brunswick,
which through its representatives
controls the educational system of
the province, may be disposed to
adopt such modiﬁcations of the
existing rules as may render them
less unacceptable to those who from
conscientious reasons have felt
themselves obliged to contest
against the system now in force.
1 cannot, in conclusion, consistently
with my duty, refrain from observ-
ing that as education is one of the
subjects expressly and exclusively
reserved to the provincial legisla-
ture by the British North America
Act, 1867, it is for the serious con-
sideration of those in New Bruns-
wick who take an active part in
relation to it, whether there can be
any advantage, and whether there
must not be serious inconvenience,
in bringing under public discussion
in the Dominion Legislature a con-
troverted question which may pos—
sibly engender much heat and irri-
tation, and over which it has no
jurisdiction.’ ’
The Earl of Kimberley, in a de-
spatch dated 30 June 187 3, stated
that certain Acts relating to the
school system passed by the New
Brunswick Legislature are, like the
Acts of 1871, within the powers of
that legislature, and interference
by the Canadian House of Com-
mons would be a virtual repeal of
the section of the Act of 1867 ,
B.N.A. ACT, s. 93 (4)—MINISTERS ON ACTS.
337
which gives the exclusive right of
legislation in these matters to the
provincial legislatures. Prov. Leg,
l886,p.l2.
This did not end the matter,
because the question was then
raised, Could the Governor-General
act on his own individual dis-
cretion in deciding whether a pro-
vincial Act should be disallowed,
or was he to be guided by the
advice of his responsible ministers P
Lord Carnarvon suggested that the
question was not one on which a rigid
rule of action should be established.
The Minister of Justice, Edward
Blake, in a report 22 Dec. 1875,
said, inter alia, “The power of
disallowance of Canadian statutes
is, by sec. 56 of the British North
America Act, 1867 , vested in the
Queen in Council. By sec. 90 of
the same Act this provision is ex-
tended and applied to each pro-
vince as if it were re-enacted, and
is so made applicable in terms
thereto with the substitution,
among other things, of the Gover-
nor-General for the Queen. The
result is that, by the express words
of the Act, the power of disallow-
ance of provincial statutes is vested
in the Governor-General in Coun—
cil, a phrase which, under the
13th section of the Act, means
the Governor-General acting by
and with the advice of the Queen’s
Privy Council of Canada. Sup-
posing that the Act had vested the
power of disallowance of Canadian
statutes in Her Majesty, not adding
the words ‘ in Council,’ it will not
be contended that the power so given
could be constitutionally exercised
otherwise than under the advice of
Her Majesty’s ministers who would
be responsible for Her Majesty’s
action, and, by parity of reasoning,
a power of disallowance of provin-
cial statutes given to the Governor
could be exercised only under the
advice of his ministers who would
be responsible for his action. It
results from the preceding observa-
tions that the only contingencies
which can arise are: (1) That the
S 2340.
Governor should propose to dis-
allow a provincial statute without
or against the advice of his min-
isters. (2) That ministers should
propose to disallow a provincial
statute without the assent of the
Governor. The position taken by
the Council is that neither of these
things can be done; that the
power being vested in the Gover-
nor in Council, any action taken
must be accomplished by Order in
Council, and that a Governor who
thinks it necessary that a provin-
cial Act should be disallowed must
ﬁnd ministers who will take the
responsibility of advising its dis-
allowance, while ministers who
think it necessary that a provincial
Act should be disallowed must
resign unless they can secure the
assent of the Governor to its dis-
allowance, ministers being in every
case responsible to Parliament for
the course taken.” The Minister of
Justice goes on to show that the
question is not the same as the
exercise of the prerogative of par-
don, because there the Governor,
to whom personally the Queen
delegates a very high prerogative,
that of pardon, cannot in any way
be relieved of the duty of judging
for himself in every case in which
that prerogative is proposed to be
exercised.
On 31 Oct. 1876 Lord Carnar—
von said his view was not one he
was prepared to insist strongly.
See Prov. Leg, 1886.
REEoRMAToRY ScHooLs 1N PRO-
VINCEs.—-New Brunswick passed
an Act, 38 Vict. c. 11, for the es-
tablishment of reformatory and in-
dustrial schools united under one
management. The Minister of
Justice (Edward Blake), 5 Dec.
1876, reported that the Act pro-
viding that the reformatory school,
when established, shall be a re-
formatory prison, and the B. N. A.
Act authorizing the establishment
of reformatory prisons by the pro-
vinces, this subject would appear
within the provincial jurisdiction.
Y
Duty of Gover-
nor in Council.
338 , B.N.A. ACT, s. 93 (4)—P. E. I. soHooLs.
Schools.
Further
opinion .
Prince Edward Island Legisla-
ture passed the Public School Act
of 1877. This Act repealed all
previous existing laws on the same
subject, and appointed a Board of
Education and inspectors. The
Act provided that the support of
the schools should come from local
assessment, and from assistance
provided by the provincial trea-
sury. Sec. 92 enacted that all
schools conducted under the pro-
visions of this Act shall be non-sec-
tarian, and “ the Bible may be read
in all such schools, and is hereby
authorized, and the teachers hereby
required to open the school on each
school day with the reading of sacred
scripture by those children whose
parents or guardians desire it, with-
out comment, explanation, or re—
mark thereupon by the teacher;
but no children shall be required
to attend during such reading as
aforesaid unless desired by their
parents or guardians.” After the
passing of the Bill the Bishop of
Charlottetown presented to the Lieu-
tenant-Governor a memorial re-
questing him to withhold his assent,
on the ground that it interfered
with the rights of the Roman
Catholic community of the pro-
vince, as secured to them by the
93rd section of the B. N. A. Act.
The Minister of Justice, in a
long report [which will be found in
Prov. Leg, 1886, p. 889], said:
The provision of the Constitu-
tional Act which secures to any
province a system of separate or
dissentient schools requires, as a
condition of interference by the
Federal authority to maintain that
privilege, that these schools should
be separate or dissentient in their
nature by virtue of the law exist-
ing at the date which the province
joined the Union. And that it
was not contended that there was
any provision in any of the previous
Acts of the Legislature of Prince
Edward Island which secured to
any sect the right of establishing an
independent school. That the argu-
ment of the bishops seemed to be
that although there was not in
existence any statutory provision
empowering the Catholic commu-
nity to establish and maintain
separate schools, and notwithstand-
ing there was in existence express
statutory provision to the contrary,
they could, because such schools
had been virtually in operation,
call on the Federal Government to
prevent the legislature from esta-
blishing any regulation with re-
spect to schools generally, without
securing to them the right of main-
taining separate and denomina-
tional schools. Andthe report winds
up, “ If we are bound to consider
the right of regulating education
as absolutely appertaining to each
province except where the privi-
lege of establishing separate schools
exists by law, it must be admitted
that they have equally the right to
attach to the provisions of such
laws the conditions and penalties
required to secure its object; and,
however arbitrary and unjust it
may appear, it would not seem
proper to the Federal Government
to attempt to interfere with the
details or the accessories of a
measure of the local legislature, the
principles and objects of which are
entirely within their province.”
“Inasmuch as sec. 15 enabled the
school trustees to levy a tax upon
the parents neglecting or refusing
to send their children to district
schools, and enabled the trus-
tees to levy the tax at their dis-
cretion, it seemed to depart in a
measure from the well-established
principle that taxation should be
certain, and so far as possible
equally distributed.” He there-
fore recommended the attention of
the Lieutenant-Governor be called
to such provision, otherwise he re-
commended the Act to be left to
its operation. The Minister of
Justice was B. La Flamme.
In HENRY MAHER v THE TowN
CoUNcIL OF PORTLAND, the J udi-
cial Committee, by Queen’s Order
dated 6 Aug. 1874, on report from
B.N.A. ACT, s. 93 (4).—THE PORTLAND CASE.
339
and privileges of
the Judicial Committee, aﬂirmed the
judgment of the Supreme Court of
New Brunswick, dated 17 June
1873, 14S. C. N. B. (l Pugs), 273,
which court refused to grant a rule
to require the Town of Portland
to show cause why a writ of cer-
tiorari should not be issued to
quash an order of assessment made
by the respondents under the
Common Schools Act, 1871, 34
Vict. (N. B.) c. 21. The Supreme
Court gave leave to appeal to the
Privy Council, and the Town of
Portland was summoned to settle
the terms of the appeal. The ap-
pellant contended the Act, 34 Vict.
(N. B.) c. 21., was void, in face of
the 93rd section. That the rights
the Roman
Catholic inhabitants of the pro-
vince, of whom the appellant was
one, had been prejudicially affected.
He stated by aﬂidavit that up to
the passing of the Act of 1871,
and after the passing of an Act
relating to parish schools, 21 Vict.
c. 9., that in the said schools the
special doctrines of the Roman
Catholic religion were taught.
That these schools were under
Government inspection, and returns
were made, and an annual allow-
ance made from the public funds,
and that there were in the province
250 of these schools, all of which
were established, and were receiv-
ing provincial allowance under
the Parish Schools Act, 1858.
That the case of Roman Catholic
schools had been seriously im-
paired. Among other matters, sub-
sec. 12 of sec. 58 of the Common
Schools Acts, 1871, prohibited in
effect the grant of public aid to
any but schools conducted under
the provisions of that Act, and
sec. 60 expressly provided that all
schools conducted under the pro-
visions of that Act should be non-
sectarian. That the result of this
legislation was to withdraw from
such Roman Catholic schools, or
from such schools in which the
Roman Catholic doctrine was dis-
tinctively taught, the enjoyment of
aid from public funds,
a right or privilege enjoyed by that
large class of persons, the Roman
Catholics of the province, which
“ right and privilege,” therefore,
with respect to denominational
schools was by the Common Schools
Act, 1871, “prejudically affected
contrary to the provisions of the
B. N. A. Act, sec. 93.” The respon-
dents observed that the judgment
appealed from merely refused to
show cause, and was given ex parte.
However, the leave of the Court of
New Brunswick to appeal to Her
Majesty in Council was granted on
hearing the respondents’ counsel.
They submitted in the ﬁrst place
the appeal was invalid, as the ea:
parte judgment was not pronounced
in respect of any sum or matter or
issue above the value of 300l., and
did not involve any question re-
specting property, or any civil
right amounting to or of the value
of 300l., and the proper course was
to have obtained not the ordinary
leave from the lower court to ap-
peal, but special leave from Her
Majesty in Council. That prior to
the union of the provinces there
existed in New Brunswick certain
parochial schools established under
a general Act, 21 Vict. c. 9., of the
local legislature, as well as certain
denominational schools, incorpo-
rated under special acts of the pro-
vince. The parochial schools were
regulated by a general Act of the
local legislature, 21 Vict. (N. B.)
c. 9., an Act relating relating to
parish schools.
Secs. 1—4. The Governor in
Council was authorized to appoint
a chief superintendent of schools,
and a Board of Education was es-
tablished for the province, consist-
ing of the Governor in Council
with the superintendent of the
schools. The Board were em-
powered (among other things) to
make regulations for the “ organi-
zation, government, and discipline
of parish schools, and the examina-
tion, classiﬁcation, and mode of
licensing teachers, and the mode of
which was MAKER v. Town
or PoRTLAND.
Y2
340 B.N.A. AcT, s. 93 (4).—STIPULATED TEACHING.
MAIIERv~T0W1I certifying the time taught and of
or PORTLAND.
paying them.” The Board were
also to apportion all moneys granted
by the legislature for the support of
such “schools among the several
parishes, not exceeding certain pe-
cuniary limits.” The Board were
to provide for the establishment,
regulation, and government of
school libraries, and the selection
of books to be used therein, “ but
no works of a licentious, vicious,
or immoral tendency, or hostile to
the Christian religion, or works on
controversial theology,” were to be
admitted. The Board might make
such other regulations as they con-
sidered necessary. By sec. 5 the
superintendent was to have the
general supervision of the parish
schools, subject to the order of the
Board of Education.
See. 6 provided for the election
annually of three trustees of schools
in each parish, who were to be
subject to the same penalties for
refusal or neglect to act as other
town and parish ofﬁcers, and W110
were to divide their respective
parishes into convenient school dis-
tricts, and give any authorized
school teacher authority in writing
to open a school in a district where
the inhabitants should have pro-
vided a suﬁicient school-house and
secured the necessary salary. The
trustees were also empowered to
suspend or displace any teacher for
incapacity or any improper or im-
moral conduct, subject to the deci-
sion of the Board of Education,
and were also required once a year
to examine the schools in their
respective parishes. The trustees
might authorize such number of
schools as the wants of the popula-
tion might require, and might
authorize the employment of as-
sistant licensed teachers in large
schools. The trustees were also to
“ apportion amongst the school dis-
tricts in their respective parishes
any moneys raised by county or
parish assessment for the support
and maintenance of the schools
therein in such manner as they
, classes.
should deem just and equitable ” ;
and it was further provided that
“ any parish adopting the principle
of assessment, and the sum required
for a teacher being assessed and
paid, should for every year such
assessment was so made and paid, re-
ceive from the provincial treasurer
10 per cent. over the allowance to
schools of the same class in parishes
or districts not so assessed, to be
apportioned and paid to teachers
therein.” Sec. 7 provided for the
election by the inhabitants of a dis-
trict (being ratepayers) of a school
committee of three persons, who
were to have charge of the school-
house, furniture, and grounds, and
who were empowered to call meet-
ings of the inhabitants for the pur-
pose of providing school-house
books, apparatus, furniture, and
fuel for the support of the school,
and who might admit so many free
scholars, and also children at re-
duced rates, being children of poor
or indigent parents.
Sec. 8. “ Teachers, male and
female, shall be divided into three
Male teachers of ﬁrst class
to teach spelling, reading, writing,
arithmetic, English grammar, geo-
graphy, history, book-keeping, geo-
metry, mensuration, land surveying,‘
navigation, algebra.” Of the se-
cond class and third these subjects
in a minor degree. “ Every teacher
of the ﬁrst and second class shall
be qualiﬁed and enjoined to impart
to his pupils a knowledge of geo-
graphy, history, and the resources
of the province of New Brunswick
and the adjoining North American
colonies.” Female teachers of the
ﬁrst class were to teach the above
down to history, and so of second
and third class. Then (5th pan),
“Every teacher shall take diligent
care and exert his best endea-
vours to impress upon the minds
of the children committed to his
care the principles of Christianity,
morality, and justice, and a sa-
cred regard to truth and honesty,
love of their country, loyalty, hu-
manity, and universal benevolence,
B.N.A. AcT, s. 93 (4)—SCHOOL AssEssMENTs. 34,1
allowances and salaries provided in GMAHER v- TOWN
sobriety, industry and frugality,‘
the Act. This Act was amended 0F PORTLAND-
chastity, moderation and temper-
ance, order and cleanliness, and all
other virtues which are ornaments of
human society, but no pupil shall be
required to read or study in or
from any religious book, or join in
any act of devotion objected to by
his parents or guardians; and the
Board of Education shall, by regu-
lation, secure to all children whose
parents or guardians do hot object
to it the reading of the Bible in
parish schools, and the Bibles,
when read in parish schools by
Roman Catholic children, shall, if
required by their parents or guar-
dians, be the Douay version, with-
out note or comment.” See. 11 and
following section made provisions
for assessment wherever any county,
parish, district, or municipality de-
termined to provide for the support
of schools therein by assessment.
“ Such assessment to be levied and
collected in the same manner, in all
respects, as other county or parish
rates.” Secs. 14,15. Apublicmeet-
ing of the rateable inhabitants of any
parish or district might be called by
the trustees for the purpose of de-
termining upon the propriety of
raising the necessary amount re-
quired for school purposes by as-
sessment. If a majority of the
ratepayers present should agree to
raise a sum by assessment either
vfor the support of the teacher or
certain other purposes speciﬁed in
the Act, the chairman of the meeting
was to transmit the vote or resolu-
tion specifying the sum to be raised
to the assessors of rates for the
parish, and the assessors were to
make out the assessment list as
near as might be in the form pre-
scribed for county or parish rates,
and deliver the list to the collector
of rates with a precept endorsed
thereon. Sec. 24 provided that any
district school supported by assess-
ment should be free to all the chil-
dren residing therein. Sec. 27 .
The Governor in Council was to
issue warrants on the Province trea~
sury for the payment of the several
(26 Vict. c. 7, which merely gave
power to the Board of Education
to order a redivision of districts.
The respondents observed in their
case that the parish schools con-
templated by the Act, of which the
main provisions have been above set
forth, in substance were of two kinds;
ﬁrst, schools supported by an as-
sessment. on the ratepayers and also
receiving grants from the provincial
treasury, and, second, schools not
supported by assessment and re-
ceiving grants from the provincial
treasury to an amount less by
10 per cent. than in the case of
schools in which the principle of
assessment should be carried out.
And they submitted, as regards as
well the parish schools supported
as those not supported by assess-
ment, that such schools were to be
in no sense sectarian or denomina-
tional ; that, on the contrary, they
were general public schools, orga-
nized and regulated for the beneﬁt
of all the inhabitants of the pro-
vince, and in respect of which no
class of persons had any special
right or privilege whatever. That
so far as appears from the printed
record, or from the printed return
made, the only schools in the
province of New Brunswick, other
than the parish schools, which,
down to and at the passing of the
B. N. A. Act, 1867, had any sta-
tutory constitution or recognition,
were “The Wesleyan Academy,
Sackville,” incorporated by a local
Act, 12 Vict. c. 65, “The Varley
School,” which formed the subject
of another Act, 13 Vict. c. 2., “ The
Madras School,” constituted by
charter on the principle of the
schools of the National Society in
England, and certain Baptist and
Roman Catholic schools recognised
by various local Acts anterior to the
said “Parish Schools Act,” and
which are enumerated in the judg-
ment of the S. C. The schools last
mentioned, and which were of the
nature of denominational schools,
342
B.N.A. ACT, 3. 93 (4).--COMMON soHooLs.
or PORTLAND.
MAKER v- TOWN were in no way affected by the
“Parish Schools Act,” nor have
they been in any way aﬁected by
the “ Common Schools Act.” On
the 17th May 1871, “ The Common
Schools Act,” 34 Vict. c. 21. (the
Act in question) was passed by the
Lieutenant-Governor, Legislative
Council, and Assembly of the pro-
vince of New Brunswick. It (sec.
61) repealed the Parish Schools
Act, 1858, 21 Vict. c. 9., and an-
other Act, 30 Vict. c 27 ., amending
the same.
The Common Schools Act, sec. 3,
provides for the appointment by
the Governor in Council of a chief
superintendent of education. Sec. 5
appoints the Governor, the mem-
bers of the Executive Council, the
president of the University of New
Brunswick, and the Superintendent
of Education, as a Board of Edu-
cation, who were “to make regu-
lations for the organization, go-
vernment and discipline of the
schools, and for the classiﬁcation of
schools and teachers, to appoint
examiners of teachers, and to grant
and cancel licenses,” and “ to pre-
scribe text-books and apparatus for
the use of schools, books for public
libraries, and plans for the con-
struction and furnishing of school-
houses.” Sec. 7. The superinten-
dent was to have a general super-
vision of inspectors of schools and
to enforce the provisions of the Act.
See. 8. The inspectors appointed
were “to aid in carrying out an
uniform system of education.”
Sec. 9 provided for the salary of
the teachers, from, ﬁrst, provincial
treasury; second, county school
fund; third, district assessment.
All other items of expenditure were
to be provided for by district or
local assessment.
Sec. 12. “ The clerk of the peace
in each county shall add to'the
sum annually voted for general
county purposes at the general
sessions, a sum sufficient, after de-
ducting costs of collection, receiving
and disbursing, and probable loss,
to yield an amount equal to 30 cents
for every inhabitant of the county
according to the last preceding
census, and the sum so added shall
form and be a portion of the county
rates and shall be levied and col-
lected as other county rates, and
shall form a county school fund.”
Sec. 14 provided that any sum re-
quired by any district in further
payment of teachers’ salaries over
and above the sums as above
provided by the province and
county, and any sum required for
other school purposes during the
year, including the purchase, rent,
and improvement of school grounds,
and generally of furniture, fuel,
books, interest, or any other ex-
penses required in providing an
efficient school, should be deter-
mined by the school district in its
school meeting, and any amount so
determined on should be a charge
on the district, and should be levied
as follows: on every male person
21 years of age and upwards,
having resided in such district for
one month, 351 as a poll tax. The
balance of the sum authorized to
be assessed was to be levied on the
real and personal property within
the parish and income of the resi-
dents of the district according to
the taxable valuation of the same
on the parish books, and upon the
real and personal property situated
within the district of non-residents
according to such valuation. No
person was to be liable to more
than one poll tax in the year.
See. 58 makes special provisions for
the management of schools in
St. J ohn’s and Fredericton, which,
previously to the 1st Jan. 1872,
were extended to the town of Port-
land under sec. 59.
Sec. 58, sub-sec. 9, enacted that
any sum required for the yearly
support and maintenance of the
schools, and for the due execution
of the different powers and trusts
vested in the Board by this Act,
should be determined upon annually
by the Board, and sub-sec. 12 en-
acted no public funds were to be
granted in support of any school
B.N.A. ACT, 93 (4).——-NON-SECTARIAN SCHOOLS.
343
unless the same be a free school
and conducted in every respect in
conformity with this Act and the
requirements of the Board of
Education. See. 58, sub-sec. 5. It
shall be the duty of the trustees
to provide school tuition free of
charge to all children from 5 to
20 years of age inclusive who may
be resident in the district, and,
when authorized by the school
meeting, improved school accommo-
dation, with power to admit to
school privileges pupils from other
districts,” with a fee from those if
necessary; to regulate time of
attendance; (3) to employ teachers
for the district, and dismiss if
necessary; (4) to visit monthly to
see that the schools are properly
supplied with the books prescribed
by the Board of Education, and
that no unauthorized books are
used. Secs. 47, 48, and 49 con-
tained provisions as regard teachers,
that they should keep a register,
faithfully teach all branches re-
quired to be taught in accordance
with their engagement with the
trustees, have a care to the health
and enforce cleanliness in the
scholars, and half-yearly hold an
examination.
Sec. 60 declares that “all
schools conducted under the pro-
visions of this Act shall be non-
sectarian.”
The respondents submitted that
by the “Common Schools Act”
the grant from the provincial
treasury, which had previously de-
pended on the annual votes in
supply, became ﬁxed by law, and
that under the Act, as under
the former law, the imposition of
district assessments was left to be
decided by the vote of a majority
of the ratepayers of the district.
Under the new Act, as under the
former Act, the schools were to be
subject to such regulations as might
be issued by the Board of Educa-
tion; and it was submitted that the
new Act did not, more than did
the Parish Schools Act, in any
way affect or deal with denomi-
national schools, and that the new ll’IAIIER v} TOWN
Act left any right or privilege OF PORTLAND '
which any class of persons by law
previously had with respect to
denominational schools wholly un-
touched.
On the 14th April 187 3 the
Board of School Trustees of Port-
land notiﬁed to the respondents
that the sum required for the
coming year’s support and main-
tenance of the schools of the dis-
trict under the control of the Board
was $12,128, and the respondents
were requested to levy that sum,
which they did by issuing an order
that the sum be assessed upon the
town of Portland and the inhabi-
tants thereof, and that a warrant
should issue under the seal of the
town to the assessors of taxes to
levy and assess the same.
On 16 June 187 3 the appellant
moved the S. C. for a rule to show
cause why a certiorari should not
be issued to remove into court the
said order of assessment, in order
that the same might be quashed.
The appellant ﬁled three atﬁdavits,
one by himself, stating he was a
ratepayer in the town of Portland,
and was rated for the year 1872 in
the sum of 53 dollars and 83 cents
for school purposes under the Com-
mon Schools Act, and was subject
to assessment for the current year,
1873. That he was one of Her
Majesty’s Roman Catholic subjects
residing in the said town of Port-
land, and he claimed that his rights
in relation to the education of his
children were prejudicially affected
by the said Act. The aﬂidavit did
not disclose how these rights were
aﬁected. Another affidavit was
made by one R. McCann, a former
teacher of a common school in the
town of Portland, under the Pro-
vincial Board of Education for
upwards of 20 years to Jan. 1872,
when the Common Schools Act
came into operation. That he ceased
to teach when the Act came into
force, feeling that he could not, as
a Roman Catholic, conscientiously
continue to teach Roman Catholic
3414s B.N.A. ACT, s. 93 (4).—BOMAN CATHOLIC SCHOOLS.
0F PORTLAND.
MAEEE v. TowN pupils and comply with the require-
ments of the Act. That after the
Act passed, 21 Vict. c. 9., came
into force he taught a school under
that Act, and during all the time
he so taught under that Act he
taught his Roman Catholic pupils
with the knowledge and consent
of the inspector of schools, without
any objection from the parents of
his Protestant pupils, and he taught
the Protestant pupils out of the
different Protestant catechisms.
That from 1861 to 1866, in addi-
tion to teaching the Roman Catholic
catechism as above, be used read-
ing books published by the Christian
Brothers,exclusively for all child ren.
That the schools so taught were
examined and visited by the in-
spector and trustees of schools, and
that he made returns semi-annuall y,
which returns contained the books
used for his school, including the
Roman Catholic catechism and the
books of the Christian Brothers,
and that after such return had
been made he had received semi—
annual allowance from the pro-
vince. That while he so taught he
remembered ten other Roman
Catholic teachers who taught
schools in the same manner under
the Act 21 Vict. c. 9. A third
affidavit was sworn by one Francois
Cormier, a Roman Catholic priest,
one of the curates in the city of
St. John, to the eﬁect: That in 1864
he was examined by the examiners
of teachers for schools under the
Act 21 Vict. c. 9., and obtained a
license to teach a school under the
said Act. That amongst the works
he was examined in, with a view to
his qualiﬁcation to teach a school,
was Le Nouveau Traité des De-
voirs du Chretien, a book published
by the Christian Brothers, which
proposes to explain the Catholic
doctrine and dogmas, and which is
used as a reading book for the
children in Quebec. That be, under
said license, taught a school in
the parish of Dorchester, county
of Westmoreland for upwards of
18 months, and used, Le Petit
Catéchisme de Quebec, the Roman
Catholic catechism, the book above-
mentioned, and other school books
used in the Roman Catholic schools
of Quebec. That he also com-
menced the school by Roman
Catholic prayers and closed it with
similar prayers, and during school
hours every day explained to the
pupils Catholic doctrines and dog-
mas. That during a great part of
the time that he taught in Dorches-
ter the school was as exclusively
Roman Catholic as the Roman
Catholic schools of Quebec. That
the school was inspected, and he
remembers the inspector examining
the children in the book above ﬁrst
mentioned, and that he made his
semi-annual returns and received
his allowance under the said Act.
That he remembers 25 to 30 schools
of the same description as the one
taught by himself in W'estmoreland
and in which the same books were
used. And he believed there were
upwards of 250 schools of the
same description in the province,
all of which were established and
received provincial allowance under
the said Act, when the Common
Schools Act was passed. The
appellant contended that the liberty
of teaching sectarian or denomi-
national doctrines to the pupils,
and of using sectarian and denomi-
national books and prayers in the
Roman Catholic schools, which, by
the affidavits, were proved to have
been enjoyed by the teachers of
Roman Catholic schools within the
province, consistently and con-
currently with their receipt of
allowances from public funds, had
in the case of Roman Catholic
schools been seriously interfered
with. Amongst other things, sub-
sec. 12 of sec. 58 of the Act of
1871, prohibited, in effect, the
grant of any aid to any but schools
conducted under the provisions of
that Act, and sec. 60 expressly en-
acted that all schools conducted
under the provisions of that Act
should be non-sectarian. The re-
sult of this legislation, therefore,
B.N.A. ACT, s. 93 (4).--GRANTS TO SCHOOLS.
345
was to withdraw from such Roman
Catholic schools, or from such
schools in which Roman Catholic
doctrines were distinctively taught,
the enjoyment of aid from public
funds, a right or privilege proved
by the affidavits to have been en-
joyed by that large class of per-
sons—the Roman Catholics of the
province, and which “right” or
“ privilege,” therefore, “ with re-
spect to denominational schools”
was by the operation of “ The Com--
mon Schools Act, 1871,” preju-
dicially aEected contrary to the
provisions of the B. N. A. Act,
sec. 93. The respondents contended
that it appeared the appellant did
not maintain that the Act of 1871
prejudicially affected any right or
privilege which any class of per-
sons at the time of the Union had
with respect to any of the then
exisiting special denominational
schools, such as the “Wesleyan
Academy” and the others men-
tioned, but that, irrespective of these
particular schools, the Parish
School Act had reference to and
created rights and privileges with
respect to schools which were pro-
perly to be termed denominational.
On 17 June 1873, the Supreme
Court, N. B., unanimously refused
the rule. Ritchie, C.J ., delivered the
following as the judgment of him-
self and of Allen and Weldon, J J . :
“This was an application for a
certiorari to remove into this Court
an order for an assessment upon
the town of Portland, under the
Common Schools Act, 1871, in
order that the same maybe quashed
upon the ground that this Act
contravenes the B. N. A. Act, and
is consequently void and of no
effect. We ‘have never doubted
that, when a provincial Act and
an Imperial statute are repug-
nant, so far as such repugnancy
extends, but no further, the pro-
vincial Act is void, and this principle
has been, since the passing of the
B. N. A. Act, 1867 , on several occa-
sions enunciated in and acted on in
this Court, and we should not have
thought it necessary now to refer to
it, still less to support by authorities,
the views we have always enter-
tained on this point (without any
doubts), were it not that we observe
that in the neighbouring province
of Quebec the question has been
much discussed, and the court
divided in their opinions on the
subject, though the majority arrived
at the same conclusion as that
which has hitherto governed this
Court. 1Ve have always thought it
a constitutional principle, too clear
to be seriously questioned, that the
subordinate legislative power of a
colonial legislature must succumb
to the supreme legislative power
and control of the Parliament of
Great Britain, and, therefore, have
heretofore considered it wholly un-
necessary to cite any authority;
but, as there is a clear statutory
recognition, as well as the highest
judicial declaration, in support of
the accuracy of the view We have
acted on, we think it as well now to
name them. [He reads 28 & 29 Vict.
c. 63. ss. 2, 3 ; see post, Schedule A.]
And this statute has undergone udi-
cial comment in the case of Phillips
2). Eyre, 1870, L. R. 6 Q. B. p. 20,
where \Villes, J ., in delivering
the judgment of the Exchequer
Chamber, in stating the eifect of
this statute, after putting forward
what has already been considered
law in this province, viz., that an
English statute only binds the
province when it is by the express
words of the statute, or by necessary
intendment, made clearly applicable
to the province, says: ‘ It was
urged that the Act in question (an
Act passed by the Legislature of
Jamaica) was contrary to the prin-
ciples of English law, and, there-
fore, void. This,’ he says, ‘is a
vague expression, and must mean
either contrary to some positive
law of England, or to some princi-
ple of natural justice, the violation
of which would induce the court to
decline to give effect even to the
law of a foreign sovereign state.
In the former point of view, it is
MAuER v. TowN
or PORTLAND.
Ritchie, C.J .
3116 B.N.A. ACT, s. 93 (4).--A DEcIsIoN or H. or LORDS.
MAHER v. TowN clear
or PORTLAND.
Ritchie, CJ.
that the repugnancy to
English law which avoids a colonial
Act means repugnancy to an Im-
perial statute, or order made by
authority of such statute, applicable
to the colony by express words or
necessary intendment; and that, so
far as such repugnancy extends,
and no further, the colonial Act is
void.’ But long prior to the
passing of either the 28 81; 29 Vict.
c. 63., or the B. N. A. Act, 1867,
the judiciary of England authorita-
tively declared what the law was on
this subject, in answer to a question
propounded to the judges by the
House of Lords. On 4 May 1840
[see Debate, 53 Hansard, 3, 5,
626; 72 Lords’ J ours., pp. 224,
254] , the Lord Chief Justice of the
Ct. of C. P. delivered the unani-
mous opinion of the judges (with
the exception of Lords Denman
and Abinger, who did not attend
the meeting of judges) upon the
questions of law propounded to
them respecting the Clergy Reserves
(Canada) Act [7 & 8 Geo. 4. c. 62.].
In answer to the question lastly
propounded [ques. 3], which is as
follows, ‘ Whether the Legislative
Council and Assembly of the pro-
vince of Upper Canada, having in
an Act “ To provide for the sale of
the Clergy Reserves, and for the
distribution of the proceeds thereof,”
enacted that it should be lawful
for the Governor, by and with the
advice of the Executive Council, to
sell, alienate, and convey in fee
simple all or any of the said Clergy“
Reserves; and, having further
enacted in the same Act that the
proceeds of all past sales of such re-
serves which have been, or may be,
vested under the authority of the
Act of the Imperial Parliament
passed in the 7 & 8 of Geo. 4. c. 62.,
intituled “ An Act to authorize the
sale of part of the clergy reserves in
the provinces of Upper and Lower
Canada,” shall be subject to such
orders and directions as the Gover-
nor in Cotmcil shall make and
establish for investing in any secu-
rities within the province of Upper
Canada the amount now funded in
England, together with the proceeds
hereafter to be received from the
sales of all or any of the said
reserves, or any part of them, did
in making such enactments, or
either of them, exceed their lawful
authority,’ his Lordship said :—
‘ In answer to the last question
propo’unded, we all agree in the
opinion that the Legislative Council
and Assembly of the province of
Upper Canada have exceeded their
authority in passing the Act “ To
provide for the sale of the Clergy
Reserves, &c.,” in respect of both
the enactments speciﬁed in your
Lordships’ question. As to the en-
actment “that it should be lawful
for the Governor, by and with the ad-
vice of the Executive Council, to sell,
alienate, and convey in fee simple,
all or any of the clergy reserves”;
we have in answer to the second
question already stated our opinion
to be such, that it is inconsistent
with any such power in the colonial
legislature; and as to the enact-
ment “That the proceeds of all
past sales of such reserves, which
have been or may be invested under
the authority of the Act of the
Imperial Parliament, passed in the
7 & 8 Geo. 4. c. 62., for authorizing
the sale of part of the clergy re-
serves in the provinces of Upper
and Lower Canada shall be subject
to such orders and directions as
the Governor in Council shall make
and establish for investing in any
securities within the province of
Upper Canada the amount now
funded in England, together with
the proceeds hereafter to be received
from the sales of all or any of the sale
reserves ”; we think such enactment
is, in its terms, inconsistent with and
contradictory to the provisions of
the statute of the Imperial Parlia-
ment 7 & 8 Geo. 4. (c. 62.), and,
therefore, void, there being no ex-
press authority reserved by that Act
to the colonial legislature to repeal
the provisions of such latter statute.’
Assuming, then, that it is not only
right, but the bounden duty of this"
B.N.A. AcT, S. 93 (4).—RIGHTS &. PRIVILEGES. 347
Court to deal with questions of this
nature when legitimately presented
for its consideration, we must en-
deavour to ascertain whether there
is such a repugnancy in this case as
will constrain us to declare the
Common Schools Act, 1871 , void in
part or in whole. [Reads sec. 93,
sub-secs. 1, 2, 3, 4 of the B. N. A.
Act.] It is now contended that
the rights and privileges of the
Roman Catholic inhabitants of this
province, as a class of persons,
have been prejudicially affected
by the Common Schools Act, 1871.
contrary to the provision of sub-
sec. 1 of sec. 93. live have now to
determine whether any class of
persons had by law in this province
any right or privilege with respect
to denominational schools at the
Union, which are prejudicially
affected by the Common Schools
Act, 1871. This renders it neces—
sary that we should, with accuracy
and precision, ascertain exactly
what the state of the law was with
reference to denominational schools
and the rights of the classes of per-
sons in respect thereto at the Union.
At that time, what may fairly and
legitimately be called the common
school system of the province was
carried on under an Act passed,
21 Vict. c. 9., intituled ‘ An Act re-
lating to Parish Schools.’ There
were no doubt at the same time in
existence, in addition to the schools
established under the Parish School
Act, schools of an unquestionably
denominational character, belonging
to and under the immediate govern-
ment and control of particular de-
nominations, and in which, there
can be no doubt, or it may reason-
ably be inferred, the peculiar doc—
trines and tenets of the denomina-
tions to which they respectively
belonged were exclusively taught,
and therefore had, what may rightly
be esteemed, all the characteristics
of denominational schools pure and
simple. We do not here refer to
collegiate institutions, which it has
been strongly and with great force
urged were not within the contem-
plation of the Imperial Parliament,
or intended to be affected by the
B. N. A. Act, but we refer to such
schools as the VVesleya-n Academy,
Sackville, as incorporated by the
12 Vict. c. 65., amended by 19 Vict.
c. 65.,a corporation entirely distinct
in law, as, we presume, also in fact,
from the college which the trustees
of that academy are authorized to
found and establish under 21 Vict.
c. 57., an institution entirely under
the control of the Wesleyan de-
nomination, and in which, or in any
department thereof, or in any reli~
gious services held upon the said
premises, it is enacted that no
person shall teach, maintain, pro—
mulgate, or enforce any religious
doctrine or practice contrary to
what is contained in certain notes
on the New Testament, commonly
reputed to be notes of Rev. John
‘Vesley, A.M., and in the ﬁrst four
vols. of sermons commonly reputed
to have been written and published
by him. The Varley School, en-
dowed by the late Mark Varley,
who bequeathed certain property
‘to the trustees of the \Vesleyan
Methodist Church of the city of
St. John,’ ‘for the establishment
and maintenance of a day school,’
which devise was conﬁrmed by the
Act 13 Vict. c. 2., and the property
vested in certain persons, namely,
the trustees of the said Wesleyan
Methodist Church in the city of
St. John, in connection with the
British Conference upon trusts, &c.,
in said will. The Madras School,
which, by its charter, is to be con-
ducted according to the system
called the Madras system, as im-
proved by Dr. Bell, and in use and
practice in the British National
Education Society, incorporated
and established in England, which
National Society, incorporated in
1811, was incorporated in 1817 for
promoting the education of the poor
in the principles of the Established
Church throughout England and
\Vales; the schools established by
such society being purely denomi-
national, in which the children
MAKER v. TowN
or PORTLAND.
Ritchie, C.J.
348
B.N.A. ACT, s. 93 (4).—--SCHOOLS & SPECIAL GRANTS.
MAKER v-TOWN are to be instructed in the Holy
OF PORTLAND.
Ritchie, C.J.
Scriptures, and in the liturgy
and catechism of the Established
Church, and, ‘ with respect to such
instruction, the schools are to be
subject to the superintendence of
the parochial clergy, and the masters
and mistresses are to be members of
the Church of England.’ And the
Baptist Academy or Seminary, the
Roman Catholic School established
in the city of St. John, the Free
School in Portland under the Board
of Commissioners of the Roman
Catholic School in St John, the
Roman Catholic School in Frede-
ricton, the Roman Catholic School
in St. Stephen, the Roman Catholic
School in St. Anchew, all of which
are recognised by name by the
legislature in various Acts anterior
to the 21 Vict. c. 9, and received
special annual grants from the
public provincial funds outside the
Parish School Act. In the year
1857 , and subsequent thereto, the
money intended for educational
purposes has been annually granted
in a lump sum, namely, so much
‘ To provide for certain educational
purposes,’ not specifying any par-
ticular school or purpose, as had
been theretofore customary. But
the estimates of the public expendi-
ture which appeared in the public
journals, show that appropriations
of a similar character have been
since annually made. Thus, in the
year 1867, but before the 1st July
(the day of Union), it will be seen
by the journals of the House of
Assembly, p. 45, that in addition to
the amounts authorized by law, the
following schools, amongst others,
received special grants. [His Lord-
ship read a list containing the
above and one or two others] And
in the journals for 1871, the year
the Common School Law passed,
are to be found special appropria-
tions for the above schools, so that
it is obvious there were in existence
at the time of the Union, and have
ever been since, in this province,
apart from schools established under
the Parish School Act, denomina-
tional schools, recognised by the
legislature and aided from the
public revenues. But as it is not
contended that the Common Schools
Law prejudicially aﬁects any right
or privilege with respect to these
schools, which any person had by
law at the Union, it will be neces-
sary to examine minutely and
critically the Parish School Act,
1858, under which it is contended
‘Rights and Privileges ’ existed,
which, it is alleged, have been so
affected. [His Lordship read the
Act substantially as given above,
ante, p. 339.] This, then, was
the state of the law relating
to parish or common schools
at the time of the passing of the
B. N. A. Act, and continued so
until repealed by the Common
Schools Act, 1871 ; and because it
is alleged that rights and privileges
secured by, or enjoyed under, this
Act have been prej udicially affected
by the Common Schools Act, it is
contended that the latter Act is
void. The Parish School Act.
clearly contemplated the establish-
ment throughout the province of
the public common schools for
the beneﬁt of the inhabitants
of the province generally, and it
cannot, we think, be disputed
that the governing bodies under
that Act were not in any respect or
particular ‘denominational.’ The
Board of Education was the Gover-
nor and Council, with a superinten-
dent appointed by them. The
trustees were elected or appointed,
as the case might be, as other parish
ofﬁcers, and they were put, in other
respects, on precisely the same
footing as other parish officers, and
the school committee was elected
by the ratepayers ; and in nothing
pertaining to the organization,
regulation, or government of the
schools had any class of persons or
denomination whatever, as such, the
slightest voice or right of inter-
ference, the Board of Education,on
behalf of the inhabitants of the
province at large, being responsible
for the general working of the
B.N.A. AoT, s. 93 (4)—PUBLIC PARISH soHooLs. 349
system, and the trustees and school
committees having the management
and direction of certain matters
under the Board of Education in
the particular localities for which
they were respectively elected, but
without reference (so far as can be
gathered from the statute) in any or
either case to class or creed. The
schools established under this Act
were then public, parish, or district
schools, not belonging to or under
the control of any particular de-
nomination, neither had any class
of persons nor any one denomi-
nation, whether Protestant or
Catholic, any rights or privileges
in the government or control of
the schools that did not belong to
every other class or denomination, in
fact to every other inhabitant of the
parish or the district, neither had
any one class of persons or denomi-
nation, nor any individual, any right
or privilege to have any peculiar re-
ligious tenets exclusively taught, or
taught at all, in any such school.
What is there, then, inthis Act to
make a school established under it a
denominational, or to give it a
denominational character? A good
deal has been said as to the in-
tention of the Imperial Parlia-
ment in using the words ‘ denomi-
national schools ’ in sub-sec. 1.
There seems to be no difficulty in
giving a legal construction or de-
ﬁnition to these words if they are
read in their ordinary sense. It is
a well-established canon of con-
struction that an Act is to be con-
strued according to the ordinary
and grammatical sense of its lan-
guage, if precise and unambiguous;
and it is likewise a rule, established
by the highest appellate authority,
that the language of a statute,
taken in its plain ordinary sense,
and not its policy or supposed
intention, is the safest guide for
construing its enactments. Phil-
pott 'v. St. George’s Hospital, 24
July 1857, 6 H. L. C. 338; 3
Jur. N. S. 1269, reversing 28
L. J. (Ch.) 657; 27 Beav. 107.
And in the great Sussex Peerage
case, July 9, 1844, 11 C. 85 F. 85 ; MAIIER v.'1‘owN
8 J ur. 793, the judges declared
the law to be that if the words of
the Act are of themselves precise
and unambiguous, then no more
can be necessary than to expound
those words in their natural and
ordinary sense, that the words
themselves do in such case best de-
clare the intention of the legislature.
“The 5th paragraph of sec. 8 of
the Parish School Act has been very
strongly relied on as establishing a
right in respect to denominational
schools [ante, p. 340]. Under that
paragraph the teacher is most cer-
tainly enjoined to take diligent care
and exert his best endeavours to im-
press on the minds of the children
committed to his care the prin—
ciples of Christianity, morality, &c.,
850.‘ As we think it cannot be
denied that the schools under this
Act were to be public parish
schools for the beneﬁt of all the
inhabitants of the parish or district
in which they might be established,
and the pupils attending the schools
would necessarily, in a vast majority
of cases throughout the province,
be children of parents belonging to
different denominations; can it be
supposed, with any reason, that the
legislature could have intended that
the teacher, who might possibly
himself belong to a persuasion
differing from all his pupils, should
impress on the minds of his pupils
the principles of Christianity by
instructing each one in the peculiar
doctrines of the denominations of
its parents? Still less do we think
it could have been intended that
the principles of Christianity to be
impressed should be those of a
denomination to which any of the
pupils did not belong, simply be-
cause they might happen to be
those of a denomination to which
the teacher, or even a large majority
of his pupils, may have belonged.
It seems to us, that in view of the
entire scope, object, and policy
of the Act, the duty imposed on
the teacher by the 5th paragraph
of sec. 8, was a duty outside of the
or PoRTLAND.
Ritchie, C.J.
350 B.N.A. ACT, S. 93 (4).--SEOTARIAN TEACHING.
MAIIER v- TOWN educational teaching of the school
or PORTLAND.
Ritchie, C.J.
(which is specially provided for in
paragraphs 1 & 2), to be performed
as opportunities occurred, by pre-
cept and example, rather than by
any direct or continuous system of
dogmatic teaching; that the prin-
ciples of Christianity, honesty, &-c.,
to be impressed were to be prin-
ciples of general applicability, inter-
fering with the peculiar religious
views of none—doctrines, precepts,
and practices which all Christian
people hold in common, rather than
the dogmatic teachings or tenets of
a particular denomination or sect.
This view would seem to be
strongly conﬁrmed by the last
clause of the 4th paragraph, because
while under the 1st clause of that
paragraph the duty referred to is
to be discharged by the teacher in
respect to all the children com-
mitted to ‘his care, without any
exception in favour of any class or
creed, the provision in the last
clause is, ‘But no pupil shall be
required to read or study in or
from any religious book, or join in
any act of devotion objected to by
its parents or guardians,’ leaving
the duty still on the teacher ‘to
impress on the minds of the chil-
dren committed to his ‘are the
general principles of Christianity,
morality, justice, a sacred regard
for truth and honesty,’ &c. And
the paragraph ends by providing
that the Board of Education shall
‘ By regulation secure to all chil-
dren, whose parents or guardians-
do not object to it, the reading of
the Bible in parish schools; and the
Bible, when read in parish schools
by Roman Catholic children, shall,
if required by their parents and
guardians, be the Douay version,
without note or comment.’ This
paragraph, so far from making the
schools denominational or giving
any rights or privileges in respect
to a denominational school, appears
to us to be directly opposed to the
idea of denominational teaching in
schools. Does not the very last
clause (that most relied on at the
argument), permitting the use of
the Douay version by the addition
of the words ‘without note or
comment,’ show, that with the Bible
read from that version, no de-
nominational views of any kind
shall be put forward; and is not
the whole in this view entirely
consistent with the exclusion from
the school library and from use,
of all works on controversial
theology? But it has been said
that, under the Parish School
Act, schools were in fact estab-
lished in certain localities where
all, or a large majority of the rate-
payers, happen to belong to one
particular persuasion, in which the
catechisms of particular churches
were taught, prayers peculiar to a
particular religious body were used,
and books inculcating the doctrines,
views, and practices of a particular
denomination were used as class
books, and that these schools were
therefore denominational, and con’
sequently the class of persons be-
longing to. any such denomination
had a legal right or privilege with
respect to denominational schools.
Assuming what is alleged to have
been the case—though on this point
we have no information before us
of which we can take judicial
notice—surely it is begging the
whole question.
“How can the mere fact, that, in
exceptional cases, certain schools
under the Parish School Act draw-
ing provincial aid may have been
made for the time being, with or
without the knowledge or sanc-
tion of the Board of Education,
denominational by reason of the
teacher instructing the children
exclusively in doctrines of a par-
ticular denomination, or using
prayers, or books, or daily
teaching the catechism peculiar to
such denomination, confer any
legal right or privilege on any
class of persons with respect to
denominational schools, or give the
denomination whose tenets may
have been so taught in any such
schools rights or privileges other
B.N.A. ACT, s. 93 (4)—SCHOOLS AND THE BIBLE. 351
than those possessed by all and
every the humblest inhabitant of
the parish in which such school
existed free and independent of all
denominational connection? It is
not by what the Board of Educa—
tion, superintendent, inspectors, or
trustees, may have done or allowed
to be done under the Act, nor is it
from the mode in which the prin-
ciples of Christianity may have
been actually practically taught in
one or a hundred schools which
may have drawn public money
under the Parish School Act, that
the question in a legal point must
be determined; we must look to
the law as it was at the time of the
Union, and by that, and that alone,
be governed. Where, then, do we
ﬁnd any legal exclusive right or
privilege conferred on any deno-
mination, to any school established
or that might be established under
that Act, or any privilege or right
conferred 011 any class of persons
to deal with such a school as be-
longing to such persons as a class
or denomination, or as being under
their control as such, or that as a
class they had any right to have
taught therein the peculiar doc-
trines of their denomination? The
assumption that the character or
status of the school could be le-
gally altered or affected, or rights
gained by reason of the religious
opinions or feelings of the inhabi-
tants of a district, or a majority of
them, because in such a case trus-
tees and a school committee might
perchance be elected from a parti-
cular demonination, and so that
then the school might be made
denominational, is in our opinion
entirely erroneous. To the Board
of Education is entrusted the con-
trolling governing power. By
those rules and regulations, made
and ordained within the letter and
spirit of the Act, must all Acts
under them be controlled and go-
verned, wholly independent of the
religious opinions of the electors
of the district or of the trustees
elected by them. It appears to us,
then, that in passing the Parish
School Act the legislature con-
templated a general system of
education for the beneﬁt of all the
inhabitants of the province, with-
out reference to class or creed;
that such schools were to be or-
ganized, regulated, and governed
by public bodies not owing their
existence to or being in any way
under the control of any class or
denomination; that the Act made
no provision for any schools es-
tablished thereunder being denomi-
national, and did not provide that
any sect or denomination whatever,
as such, was in any such schools
was to have control or precedence,
nor in any way give or recognise
any right in any class of persons
to have in the schools established
thereunder, the doctrines, precepts,
or tenets of their denomination
taught as part of the system of in-
truction, or to have such schools in
any other respect denominational
in their character. That, with re-
ference to religion, the Act simply
recognises the duty of impressing
on the minds of the pupils the
general principles of Christianity,
honesty, 800., common alike to all
Christians, and simply required to
be secured by regulation; the
reading of the Bible as the inspired
Word of God, accepted by all
Christians as the basis of their
faith, securing always to the Roman
Catholics the use when read by
Roman Catholic children, if re-
quired by their parents, the ver-
sion recognised by their Church,
but without note or comment, but
at the same time with the greatest
apparent caution and scrupulous
care lest the religious principles of
any should be interfered with, pro-
viding that, even with respect to
the inculcating the principles of
Christianity, morality, &c., as in-
dicated, no pupil should be re-
quired to read or study in or from
any religious book, or join in any
act of devotion, objected to by his
parents or guardians. And so
even with respect to the, reading
MAKER 9. Team
or PoRTLAND.
Ritchie, C.J. ,
352
B.N.A. ACT, s. 93 (4).-EXAM. or sUB-sEcs. 1, 2, a 3.
MAKER v-TowN of the Bible, it is to be secured
OF PORTLAND.
Ritchie, C.J.
only to those children whose
parents and guardians do not ob-
ject. If, then, the establishment
of denominational schools, or the
teaching of denominational doc-
trines, was not recognised or pro-
vided for by the Act, and the
Roman Catholics had therefore no
legal rights as a class to claim any
control over, or to insist that the
doctrine of their Church should be
taught in all or any schools under
the Parish School Act, how can
it be said (though, as a matter of
fact, such doctrines may have been
taught in numbers of such schools)
that, as a class of persons, they
have been prejudicially aﬁected in
any legal right or privilege with re-
spect to ‘denominational schools,’
construing those words in their
ordinary meaning, because under
the Common Schools Act, 1871, it
is provided that the schools shall
be non—sectarian? But it is con-
tended in this case that the words
‘denominational schools’ were
not used by the legislature, and
should not be construed by us in
their ordinary grammatical sense
and meaning, but should have
a much broader interpretation.
While freely admitting that though
the general rule is that every word
must be understood according to
its legal meaning in construing an
ordinary, as opposed to a penal
enactment, where the context
shows that the legislature has used
it in a popular or more enlarged
sense, courts will so construe the
language used. We are at a loss
to discover anything in the B. N. A.
Act, 1867, indicating a legislativie
intention of using the words other-
wise than in their ordinary mean-
ing. It is clear enough that the
reference in sub—sec. 2 to separate
and dissentient schools in Ontario
and Quebec is especially to schools
of Protestants and Catholics; and
it is, perhaps, equally clear that
sub-sec. 3 applies only to schools
of a like character existing in any
of the four provinces. But we are
at a loss to understand Why sub-
secs. 2 and 3 should be held to
control or in any way limit or
affect a previous distinct enact-
ment, couched in plain and unam-
biguous language, and which, by
quite as clear and unequivocal
terms, has relation to all classes of
persons or denominations, and to all
the provinces of the Dominion; or
why, because separate and dissen—
tient schools as between Protestants
and Roman Catholics, not only in
Ontario and Quebec but in any pro-
vince in which they may exist at
the Union, or be thereafter estab-
lished, are provided for and pro-
tected, therefore We must necessarily
infer therefrom that in using the
term ‘denominational schools,’ in
sub-sec. l, the legislature intended
to legislate only as between Roman
Catholics and Protestants, and then
also as to schools not necessarily
denominational in the ordinary ac-
ceptation of the term. We think
that the term ‘denomination,’ or
‘denominational,’ as generally
used, is in its popular sense more
frequently applied to the different
denominations of Protestants than
to the Church of Rome; and that
the most reasonable inference is
that sub-sec. 1 was intended to
mean just what it expresses, viz.:
that ‘any,’ that is, ‘every,’ class
of persons having any rights or
privileges with respect to deno-
minational schools, whether such
class should be one of the nume-
rous denominations of Protestants
or Roman Catholics, should be
protected in such rights. If it had
been intended that the clause
should have been limited in its
application to Roman Catholics
and Protestants only as dissentient
one from the other, and apply to
schools other than those usual-
ly understood as denominational
schools, is it not fair to assume
that the legislature would have
used some expression in the sub-
section itself indicating such a par-
ticular sense, especially as we have
seen there were at the Union, in
B.N.A. ACT, s. 93 (4).—NON-SECTARIAN SCHOOLS.
353
this province at any rate, strictly
denominational schools, both Pro-
testant and Roman Catholic, to
which such a clause would be ap-
plicable; and for the very reason
also that when dealing with schools
as between Protestant and Roman
Catholic in sub-secs. 2 and 3, the
language conﬁnes it to these bodies
respectively? But, assuming that
the term ‘ denominational schools ’
is not to be construed in what has
been called its narrow signiﬁcation,
perhaps the most favourable posi-
tion to assume would be to read
sub-sec. 1 as meaning substantially
that nothing in such law shall pre-
judicially affect any right or privi-
lege which any class of persons as
a denomination had by law with
respect to schools in the province
at the Union. Let us endeavour
to ascertain whether in such a case
we would be justiﬁed in pronounc-
ing the Common Schools Act,
1871, ultra wires, and therefore
void. Except in the matter of
compulsory taxation there is no very
great diﬁerence in principle that
we can discover between the Parish
School Act of 1858 and the Com-
mon Schools Act of 1871. The
general government, superintend-
ence, and control of the schools
are under both laws vested in a
Board of Education almost simi-
larly composed, the only difference
being that to the Governor and
Council and superintendent is added
the president of the university.
Under the latter Act, in fact, the
power to make regulations for the
organization, government, and dis-
cipline of the schools, appointment
of examiners, of teachers, and the
power of granting or cancelling
licenses, and of making such regu-
lations as may be necessary to carry
into effect the Act and generally to
provide for any exigencies that
may arise under its operations, are
precisely the same in both [see sec.
4, paragraphs 3 to 10, of the Parish
School Act, and sec. 6, sub-secs. 4
to 8, of the Common Schools Act,
ante, pp. 339, 342], and the details
S 2340.
are to be carried out by a superin-
tendent, inspectors, and trustees,
alike substantially, under both Acts;
and the duties and powers of these
otiicers do not in principle substan-
tially differ. But there are, of course,
differences. Those relied on are that
the Common Schools Act has no
enactment similar to see. 8 of the
Parish School Act; that the Parish
School Act had no enactment similar
to see. 58, sub-sec. 12 [ante,p. 342],
of the Common Schools Act; and
this section, it is alleged, prohibited
the granting of provincial aid to
any but schools under the Com-
mon Schools Act; and that by
the 60th section of the Common
Schools Act all schools conducted
under its provisions shall be non-
sectarian—a provision not to be
found in the Parish School Act.
And it is contended that the omis-
sion in the one case, and the ex-
press enactment in the other, pre—
judicially affects the rights and
privileges which the Roman Catho-
lies as a class of persons and a
denomination, and in the schools
established, or which might have
been established, under the Parish
School Act; in other words, that
the rights and privileges which
they had under the one, the omis-
sion and the enactments referred
to prevented their claiming or ob»
taining under the other. With
reference to the omission, the
Parish School Act no doubt de-
clares that the Board of Education
shall secure to all children, whose
parents do not object, the reading
of the Bible, and that when read
by the Roman Catholic children, if
required by their parents, it shall
be in the Douay version without
note or comment. Here we have
expressly directed to be secured to
all children what many persons no
doubt consider a great right and
privilege, and the Roman Catholic
parents have a great right secured
to them, namely, to have, if they
require it, a particular version of
the Bible read. As to the reasons
why a similar provision securing
Z
MAKER. v. TowN
or PORTLAND.
Ritchie, C.J.
354
B.N.A. ACT, s. 93 (4)—BIBLE PRIVILEGES.
MAHER 'v- TOWN these important rights, in which
or PoRTLANn.
Ritchie, CJ.
the Protestants and Catholics were
both interested, was excluded from
the Common Schools Act, it is not
our business to inquire. What we
have to determine is, does this
emission make the law void if in
other respects
We think not. If this was a right
or privilege which existed at the
Union, the legislature certainly
have not protected it by an express
enactment. But is the right taken
away? May it not "still exist, pro-
vided always it is a right which
legitimately comes under sub-sec.
1, sec. 93? Because that section
declares that nothing in any such
law shall prejudicially affect any
such right; and, in such case,
reading the common school law by
the light of this section, would it
not be the duty of the Board of
Education under the Common
Schools Act, instead of making
regulation 21 declaring as fol-
lows: -— ‘ That it shall be the
privilege of every teacher to open
and close the daily exercises of the
school by reading a portion of
scripture (out of the common or
Douay version, as he may prefer),
and by offering the Lord’s prayer
-—-any other prayer may be used by
permission of the Board of Trus-
tees—but no teacher may compel
any pupil to be present at those
exercises, against the wishes of his
parents or guardians, expressed in
writing to the Board of Trustees,’
to secure by regulation just what
the Board of Education were
bound to secure under the Parish
School Act, 1858, that is, to make
just such a regulation as the Parish
School Act required to be made?
We have seen they have precisely
the same, and only the same, powers
to make regulations as the Board
had under the Parish School
Act. By this simple means the
rights of all the children and
their parents in the province, as
well Protestant as Roman Catho-
lic, which existed at the Union,
Would be preserved, and all just
unobj ectionable? '
cause of complaint on this head
removed. Why the Board of Edu-
cation should have departed from
the principle and policy of the
Parish School Act and taken from
the parents of all the children in
the country, Protestants and Ca-
tholics alike, the great been and
privilege of insisting on the Bible
being read in schools as they have
done, and should have conferred on
the teacher not only the privilege
of reading the Bible or not, as he
likes, but out of the common or
Douay version, not as the children
or their parents may choose, but
as the teacher may prefer, though
he cannot compel the attendance
of the pupils, is not for us to at-
tempt to explain ; we simply point
out the fact. But if the right
secured by the Parish Schools Act
is protected by the B. N. A. Act,
we fail to see, because the Board
of Education may not have made
such a regulation as they ought in
such a case to have made, or have
made a regulation they ought not
to have made, that the action of
the Board, or its non-action, can
render the Act of the legislature in“
operative. If the right and privi-
lege fall under sec. 93, and if there
is no power to compel the Board
of Education to make such a regu-
lation, or the legislature should
have inserted a clause in the Com-
mon Schools Act requiring them
to do it, is not this just such a
case where sub—sec. 4, sec. 93 of
the B. N. A. Act applies? [Reads
sub-sec. 4.] In this connection
we may refer also to the 20th re-
gulation, which, it has been con-
tended, prejudicially affects the
rights and privileges which the
Roman Catholics had under the
Parish School Act. This regula-
tion declares that ‘ Symbols or
emblems distinctive of any national
or other society, political party or
religious organization, shall not be
exhibited or employed in the
schoolroom, either in its general
arrangement or exercise, or on the
person of any teacher or pupil.’
B.N.A. ACT, s. 98 (4).—-WHAT LEGAL RIGHT.
355
It may be that the Board of Edu-
cation have disregarded the general
policy of the Common Schools Act,
and interfered with the rights of
teachers, parents, and children, in
excluding from the schools alike
teachers and pupils who may ex-
hibit on their person, in dress or
ornament, symbols or emblems dis-
tinctive of any national or other
society, political party or religious
organization; for however clear
the right of the Board of Education
may be to make regulations neces-
sary for the good government and
discipline of the schools, to make
arbitrary restrictive regulations as
to the dress or personal adornment
of the teachers and pupils, or which
are calculated unnecessarily to in ter-
fere with their feelings, national,
social, religious, in matters not
calculated to give any such cause
of offence to others, or to interfere
with good order in the schools, is
quite another question. And while
it is by no means clear to us that
any power exists in the Board of
Education under the Common
Schools Act by regulation, to de-
prive teachers, parents, and chil-
dren of their right of access to the
free schools of the country to the
support of which they and all
others are forced to contribute
unless they submit to such regula-
tions, and though the assumption
of such a power of practical expul-
sion by the Board of Education
raises a question involving im-
portant and delicate rights—rights
which in this land of civil and re-
ligious freedom few may be will-
ing to see infringed—or, at any
rate, raising discussions which
must be unpleasant to those en—
gaged in them, and calculated to
result in consequences which can
scarcely fail to produce acrimoni-
ous feelings, and in the end be
injurious to the cause of free educa-
tion, which, we must presume, the
regulation objected to was intended
to further; all we can say is, as
the case stands, the regulations
are not before us in such a way
that we can deal with them, and MAJIER v- TOWN
therefore we are not called upon “PORTLAND-
to express any decided opinion as Ritchie, Cl
to their validity, because the con-
stitutionality of the Act cannot, in
our opinion, be affected by any re-
gulation made under it, there being
nothing unconstitutional in the
Act itself that we can discover.
The second objection is easily an-
swered. The provision in sec. 58,
sub-sec. 12, of the Common Schools
Act, declaring that no public funds
shall be granted, would seem to
apply to the schools particularly
referred to in the preceding part
of that section, and not to all
schools. But if it was intended
to apply generally to all schools,
as [the counsel for Maher] Mr.
Duif’s argument assumes, what
does it amount to P It cannot take
from the legislature the right to
make such grants. Thus we see
in the estimates of the year 1872
grants were recommended by the
Lieutenant-Governor, and no doubt
made, for all the denominational
schools before speciﬁed referred to
[see Journal of House of As-
sembly, p. 124]; and if such
clause was ultra rlres, and we de-
clared it void, euz' bouo, it would
not affect the other parts of the
Act; and what would practically be
attained? The legislature could,
whether the clause stands or is
declared void, do just as it pleases
about granting or withholding the
public funds. But it was contend-
ed sec. 60, declaring ‘That all
schools conducted under the pro-
visions of this Act shall be non-
sectarian,’ prejudically affects the
rights and privileges which the
Roman Catholics as a class had in
the parish schools at the time of the
Union. It cannot be denied that
to the provincial legislature is con-
ﬁded the exclusive right of making
laws in relation to education, and
that they, and they only, have the
right to establish a general system of
education applicable to the whole
province and all classes of denomina-
tions, provided always they have due
Z2
356
B.N.A. ACT, s. 93 (4).—-—“ LEGAL RIGHTS.”
MAKER v. Town
or PORTLAND.
Ritchie, C.J.
regard to the rights and privileges
protected by sec. 93 of the B. N. A.
Act, 1867 . Now what in this case
is the right or privilege claimed to
have been prejudically affected?
Is it a legal right that could have
been put forward and enforced by
the Roman Catholics as a class
under all circumstances, and in
every parish or common school, or
is it a legal right conﬁned to the
Roman Catholics as a body, or does
it belong equally to all and every of
the other denominations of‘ Chris-
tians in this province, and capable by
them of enforcement; or, on the con-
trary, was it not the mere possible
chance of having religious denomi-
national teaching in certain schools,
depending entirely on accidental
circumstances, or on what might
happen to be the religious views of
a majority in a parish, and then on
the accidental result of the election
of the trustees and school com-
mittee, and on the views of the
parties so elected as to religious
denominational teaching and their
willingness to permit it in the
schools (admitting that the trustees
or committee had any discretion
in the matter, which perhaps is
more than doubtful); was it not
also dependent on the Board of
Education, who had the general
controlling power? If dependent
on circumstances such as these,
how can it be considered such a
legal right as could have been con-
templated by the Imperial Parlia-
ment in passing the 93rd section
of the B. N. A. Act, 1867? Where
is there anything that can with
any propriety be termed a legal
right? Surely the legislature
must have intended to deal with
legal rights and privileges? How
is it to be deﬁned—how enforced P
It by no means follows as a neces-
sary legal consequence, that because
a majority of the inhabitants of a
parish or school district may be-
long to a particular persuasion they
would necessarily vote for trustees
favourable to denominational teach-
ing, nor could they be compelled
by any legal process so to vote,
nor does it follow that trustees,
when elected even by a majority of
one denomination, would necessarily
prove favourable to denominational
teaching; and by what legal pro-
cess could they be constrained to
assent to its introduction in the
schools? And again, suppose up
to this point all were favourable,
might not the whole scheme be
ignored by the Board of Education,
and how then could any class of
persons as such, no matter to what
denomination they may belong,
claim of right to control or direct
the acts or doings of any of these
parties; or how could electors,
trustees, school committees, or the
Board of Education, be compelled
to make any school in any sense
denominational, or, in other words,
to confer on any such class de-
nominational rights? Surely the
rights contemplated must have
been legal rights, in other words,
rights secured by law, or which
they had under the law at the
time of the Union. If any such
existed, they must have been ca-
pable of being clearly and legally
deﬁned, and there must have ex-
isted legal means for their enforce-
ment or legal remedies for their
infringement, for it is a clear
maxim of law that ubz' jus, ibz'
remedz'um. It was said long ago
in a celebrated case, that if a man
has a right he must have a means
to vindicate and maintain it, and a
remedy if he is aggrieved in the
exercise and enjoyment of it ; and
that it was indeed a vain thing to
imagine a right without a remedy,
for want of right and want of
remedy are reciprocal. What pos-
sible legal means could any denomi-
nation have invoked under the old
Parish School Act, to compel any
one school to be made denomina-
tional, or to require and insist that
in any one school denominational
tenets, doctrines, precepts, or prac-
tices should be taught or used?
But then it was repeatedly urged
upon us that under the Parish
B.N.A. AcT, S. 93 (4).-—DENOMINATIONAL RIGHT. 357
School Act circumstances might,
and very often did, concur where
the schools might, and in numerous
cases did, become denominational;
but that by reason of sec. 60 of
the Common Schools Act such was
not now possible. The answer is
simply this :—The inability of a
class of persons to have under the
Common Schools Act that which
possibly they might, under certain
exceptional and accidental circum-
stances, have had under the Parish
School Act of 1858, but which
they had no right to insist- on
having, is a damage not occasioned
by anything which the law esteems
an injury -- a kind of damage
termed in law damneun absgue
tnjurz'a, and for which there is
no remedy. And so in this case, as
there was no legal right to have
denominational schools or denomi-
national teaching, there is no injury
in legal contemplation committed
by the legislature dealing with the
question in such a manner as to
prevent the possibility arising, and
consequently no right to have the
action of the legislature abrogated.
It may be a very great hardship
that a large class of persons should
be forced to contribute to the
support of the schools to which
they are conscientiously opposed,
or to be shut out from what they
have hitherto under certain circum-
stances enjoyed, and be without
remedy, but by any such considera-
tions courts of justice ought not to
be inﬂuenced. ‘ Hard cases, it has
been repeatedly said, are apt to
make bad law, and it has also been
justly remarked that if there is a
general hardship aﬁecting a general
class of cases or persons, it is a
consideration for the legislature,
not for a court of justice.”
Fisher, J .: “I concur in the
judgment of my brethren as to the
constitutionality of the Common
Schools Act, 1871, but as there are
some sentiments in it in which
I don’t agree, I have thought in
a matter of so much delicacy and
importance it was better to read
the judgment which I had written
than to attempt to qualify opi-
nions which my brethren have
so fully considered. The right
to impose this assessment is ob-
jected to on the ground that it in-
cludes a sum for the support of
schools under the authority of the
Act relating to common schools,
34 Vict. c. 21., which it is con-
tended is unconstitutional, that the
legislature have no power to pass it
because it contravenes the exception
in the Act of Union. [His Lord—
ship read the 93rd section and its
sub-section] The exclusive power
of legislating upon the subject of
education is thus conferred upon
the legislature of each province,
subject to the reservation of the
right of any class of persons with
respect to denominational schools.
Everyone acquainted with the his-
tory of the province which comprised
Canada before the Union, knows
the reason for the insertion of
some of the provisions of this“
section. It was found to be the
only mode of solving a question
that had caused serious ‘difficulty
with the Government and legisla-
ture of that province. Paragraphs
2 and 3 were constructed to solve
and settle these difficulties, and at
present only apply to that province
now consisting of Ontario and
Quebec, where schools were in
operation at the Union answering
the description given them in
these paragraphs. Whether the
4th paragraph applies to any other
law than such as is referred to in
the 3rd paragraph it is not necessary
to consider, as the constitutionality
of the Common School Act depends
entirely upon the meaning of the
1st paragraph. The simple question
for solution is, does the Common
Schools Act, 1871, prejudicially
affect any ‘ right or privilege with
respect to denominational schools,’
which any class of persons had by
law in the province at the time of
the Union? It is not merely a
right or privilege. A denomina-
tional right or privilege of itself, if
MAIIER v. Town
or PORTLAND.
Fisher, J.
358 B.N.A. ACT, S. 93 (4)-MUST BE NON-SEGTARIAN.
1V[AIIERv-T0WN any such exist, would not alone
or PoRTLANI).
Fisher, J.
make the Common Schools Act
unconstitutional. It must be a
‘ right or privilege with respect to a
denominational school, which a class
of persons had by law at the Union,’
which is prejudicially affected by
this Act to render it unconstitu-
tional. It appears to me that the
ﬁrst inquiry is—Wh at is a ‘ denomi-
national school’ ? In my opinion
it is a school under the exclusive
government of some one denomina-
tion of Christians, and where the
tenets of that denomination are
taught. But assume that a school
answering either of these requisites
is a denominational school, and this
is the lowest ground upon which it
can be put, and then examine the
laws in force at the time of the
Union to ascertain if any such
school then existed by law, and if
the right of any class of persons
therein has been prejudicially af-
fected by the Common Schools
Act. There were denominational
schools in existence at the Union,
such as the Varley School in St.
John, the Sackville Academy, the
Madras School, and the like, but
they are not touched by the Com-
mon Schools Act—they remain in
the enjoyment of all the rights they
had at the Union. The Act 20 Vict.
c. 9., intituled ‘ An Act relating to
Parish Schools,’ with some unim-
portant amendments not affecting
the present question, was in force
at the Union. As it has been super-
seded by the Common Schools Act,
1871, which is objected to, we must
refer to its provisions to ascertain
whether it authorized any denomi-
national school, for if it did not,
then the Act under consideration
has not in any of its provisions pre-
judicially affected any right or
privilege any class of persons en-
joyed at the Union. The very title
of the Act proclaims its unsectarian
character as fully, to my mind, as
the positive enactment in the Act of
1871 that the schools conducted
under its provisions should be non-
sectarian—a useless provision in an
Act which alone provided for the
establishment of such schools.
Parish schools, that is schools in
and for every parish in the pro-
vince, according to the practical
division of the province into coun-
ties, towns, and parishes, distributed
and sustained by public, and ac-
cording to the population and ex-
tent of each parish, the number
and the classes of the schools must
in the very nature of things be
other than denominational. I will
now refer to the provisions of the
Act, and see if there is any authority
for the establishment of a denomi-
national school under it, or any
countenance in the Act for such a
school. The Governor in Council
appoints the superintendent of
schools, who, with the Governor
and three members of the Executive
Council, constitutes the Board of
Education. The inspection of the
schools is done altogether by political
agency. The Governor in Council is
authorized to divide the province in-
to 245 districts, and appoint one in-
spector for each district. The Board
of Education, a purely political body,
makes rules and regulations for the
organization and government of the
schools, and such other regulations
as may be deemed necessary to carry
the Act into effect. There was no
restriction whatever upon the power
of the Board in this respect. The
Board regulates the mode of licen-
sing, examining, classifying, and
paying the teachers, and prescribes
the duties of the inspectors. The
superintendent, a political officer,
has the general direction and super-
vision of the schools, subject to the
order of the Board. Each parish
was to be divided into school dis-
tricts, by three trustees annually
elected by the ratepayers, at the
same time and in the same manner
as other town or parish oﬁicers
were elected, and subj ect'to the same
penalties and disabilities, with the
same provision for appointing them
in case of failure in the election.
They employ the teachers, and may
dismiss them, subject to an appeal
B.N.A. AcT, s. 93 (4).—-ANTI-DENOMINATIONAL.
359
to the Board of Education. They
are to examine the schools and ap-
portion the money raised by assess-
ment when so raised amongst the
different schools. Each school was
under the immediate supervision of
a school committee, elected annually
by the ratepayers of the district.
They were empowered to admit
free scholars and children of poor
parents at a reduced rate. The law
also provided for a superior school
in each parish, thus also supplying
the means for higher education.
The teachers, both male and female,
were divided into three classes, with
an appropriate allowance to each
class from the provincial treasury,
and with duties as to the subjects
taught prescribed in the Act for
each class. It provided for a school
library. [See for this part of the
judgment the opinion of James,
L.J.,post, p. 366.] WVhat sort of
denominational school would that
be where the master would not be
aided in his dogmatic teaching by
the writings of men of his own
faith ? When a denominational
school is established, how strictly
this is provided for. Take any of the
statutes on our Statute Book and
examine its provisions. I will
refer to the incorporation of the
trustees of the Wesleyan Academy
at Mount Allison, Sackville,
12 Vict. c. 65. [His Lordship
read the 11th section, given in
Chief Justice Ritchie’s opinion]
Take the charter of the Madras
School, or any other Act, and the
same strict provision for dogmatic
teaching is made. I pass by the
colleges which were referred to by
the counsel on the argument for
this rule as not material to the in-
quiry, if they are within the category
contended for. I can hardly ima—
gine any stronger illustration of the
principle that pervades the whole
Act relating to parish schools than
the language of the 8th paragraph
of the 4th section, which thus
restrains the large legislative power
of the Board of Education: ‘ To pro-
vide for the establishment, regula-
tion, and government of school
libraries and the selection of books
MAHER 9. TOWN
OF PoRTLAND.
to be used therein, but no book of a Fisher, J-
licentious, vicious, or immoral ten-
dency, or hostile to the Christian
religion, or works on controversial
theology, shall be admitted.’ It has
been urged that the 6th paragraph of
sec. 8 countenanced denominational
teaching. I think no one can read
that section and fail to discern that it
enacts the very contrary. [His Lord-
ship read it as given above, p. 340.]
Surely it cannot be disputed that
this can be done without any de~
nominational teaching, or, in the
language of the statute, without
entering upon controversial theo-
logy. There are certain great
fundamental principles of Christian-
ity common to all that may be en-
forced without trenching upon de-
bateable ground. Take the Sermon
on the Mount, or any of the lessons
of the Great Teacher himself for ex-
ample. To avoid any abuse of this
duty or privilege of the teacher in
the parish schools, the legislature
proceeds further to enact, ‘ but no
pupil shall be required to read or
study in or from any religious book
or join in any act of devotion ob-
jected to by his parents or guar-
dians.’ Here is a positive enactment
against denominational teaching.
Knowing it to be possible for a de-
signing teacher, under colour of the
authority to impress upon the minds
of the children the principles of
Christianity and all other virtues,
stealthily to teach doctrines of a
denominational or sectarian charac-
ter, and to protect the child from
the influence of such teaching,
the parents are empowered to
interfere and withdraw the child
from any such teaching or from
joining in any act of devotion hav-
ing such a tendency. The paragraph
then proceeds, ‘ and the Board of
Education shall by regulation se-
cure to all children, whose parents
or guardians do not object to it, the
reading of the Bible in parish
schools.’ What is there denomina-
tional in thus inculcating the prin-
360 B.N.A. ACT, s. 93 (4).--BIBLE “WITHOUT NOTE.”
MAHER v. Town
or PORTLAND.
Fisher, J.
ciples of Christianity and all other
virtues which are the ornaments of
human society? What better mode
could be adopted than by reading
portions of the Bible? It certainly
is not a ‘ denominational book.’ It
is the common standard of faith
and practice to all Christians, to it
they all appeal. Where are such
ennobling thoughts as in the Bible?
It is said to be an historical fact,
that when the question of reading
the Bible in the common schools of
one of the cities on this continent
was debated the Jews voted for it, on
the ground that it was well adapt-
ed to the instruction of children,
because of the sublime principles of
morality it contained. Though the
Bible is regarded as the great charter
of our salvation, the revelation of
the will of God to man, eminent
divines in one branch of the Church
Catholic object that some words,
some expressions, and some sen-
tences, are incorrectly rendered in
our ordinary English version, and
recognise another version as being
a more correct interpretation of
such words, expressions, and sen-
tences. The legislature, with the
same object of preventing any de-
nominational rights, enacts, ‘ And
the Bible, when read in parish
schools by Roman Catholic children,
shall, if required by their parents
or guardians, be the Douay version,
without note or comment’; the
very words, ‘ without note or com-
ment,’ of themselves are signiﬁcant
proofs of the intention of the legis-
lature. Assuming that the Bible is
a denominational book—and I can-
not think anyone will seriously con-
tend that it is—and that this pro-
vision created a right, a denomina-
tional right if you please, that will
not help the ultra 'v-ires argument,
because if it were so it is a right
or privilege which a class of persons
had by law at the Union, to have
the Bible read in a parish school,
not in a denominational school, and
that is not a right secured by the
B. N. A. Act, even if it existed.
I have endeavoured to ascertain
the true construction of the Act
relating to parish schools as the
only Act affecting the question. _ I
include the amendments which are
not important. Every other Act
which confers upon any denomina-
tion a right or privilege with respect
to denominational schools is left
unrepealed, so that no right or
privilege enjoyed by any class of
persons under any such Act is pre-
judicially or in any way affected by
the Act under consideration. The
Act 34 Vict. c. 21., intituled ‘ An
Act relating to Common Schools,’
is substantially the same as the Act
of 1858, relating to parish schools.
The Board of Education is the
same, with the addition of the
president of the university. It has
the same large powers. The duties
of the superintendent are the same.
The number of inspectors is in-
creased, with smaller districts for
each, but with duties very similar
to what they discharge under the
old law. The trustees are ap-
pointed in the same manner as
under the old law, and discharge
much the same duties, including
the duties of the school committee.
The teachers are classiﬁed and paid
as in the old law. Superior schools
are provided for, and libraries,
upon the same principle. The
only real difference that I can
discover arises from the diﬁerent
modes of supporting the school.
Under the Act of 1871, the por-
tion of this support furnished by
the inhabitants is raised by assess-
ment; and in the machinery and
provisions necessary for working
this out, and the diﬁerent modes of
paying and supporting the schools
that it involves, is the only diffe-
rence. In other respects this Act
provides for the attainment of the
same object by the same means.
It is said that there is no provision
requiring the reading of the Bible
in the schools. The Board of Edu-
cation may, by regulation, provide
for it, as in the Act relating to
parish schools. If it were other-
wise, it would not help the ultra
B.N.A. AcT, S. 93 (4)-ACT AND REeULATIoNs.
361
tires argument unless the schools
could be shown to be denomina-
tional. Upon the argument it was
contended that some of the regu-
lations interfered with the rights
of a class of persons. I confess I
am unable to discover the bearing
of that argument upon the ques-
tion. How, if the law were good, a
bad regulation—if such there was
—would affect it P Assume that this
contention is correct, and that it
prejudicially affects the right that
a class of persons had at the Union,
such a right, if it existed, is not
saved by the B. N. A. Act, because
it would be a right or privilege
with respect to a parish school and
not a denominational school. 1
cannot discover that the regula-
tions have anything to do with the
question of the power of the legis-
lature to pass the Act, or can form
any guide in the interpretation of it.
It appears to me that under either
of the Acts of 1858 or 1871 it was
competent for the Board of Edu-
cation to make any of the regula-
tions referred to; whether they ex-
ercised their powers Wisely or un-
wisely under the Act of 1871 is
another question. The propriety
of the regulation objected to is a
question of public policy, upon
which I am not called upon to ex-
press an opinion. I may, as an in-
dividual, entertain a very strong
opinion as to its policy. As a
judge, all I feel called upon to
do is to consider its legality, and
for myself, on that point, I en-
tertain no doubt. I am, therefore,
of opinion the rule should be re-
fused.”
Wetmore, J. : “ While fully con-
curring in the opinion of my learned
brethren as to the constitutionality
of the Common Schools Act, 1871,
I do not wish to be understood as
expressing a participation in any
doubt whatever as to the regula-
tions of the Board of Education.
I think the only question properly
before the Court is as to the Act
itself and not as to the regulations.
We are only called upon to decide
whether or no the Schools Act, or
any part of it, is ultra rvires, and MAIIEaaTowN
upon the decision the order for OF PORTLAND-
assessment, to set aside which the Wetmore, J-
application is made, is to be affected.
If the Act itself is not ultra vires,
I do not see how the promulgation
of any regulation, even supposing
it to be one which the School Act
would not warrant to be in vio-
lation of the provisions of sec. 93,
sub-sec. 1, of the B. N. A. Act, can
affect the case any more than asses-
sors acting in violation of the law
under which an assessment is im-
posed, would aﬁ’ect the law autho-
rizing the assessment. In such a
case, if the assessment is imposed
in a manner not warranted by law,
parties aggrieved would have their
remedy for obtaining relief; and
so, with reference to a regulation
sought to be established by the
Board of Education, if that body
should exceed the power given by
law in such case, the regulation
would not have the support of law
to uphold it and therefore could
not be maintained, but the law
would remain in full force. The
application to this Court is simply
to set aside the order for assessment
in consequence of the invalidity of
the law; it does not touch upon the
regulations, and though they have
been referred to by counsel in the
argument, it does not seem to me
they are before us in such a way as
to call for a decision, or the expres-
sion of an opinion upon any one of
them. Indeed, I do not see that a
most positive and direct expression
by the Court as to the legality or
illegality of any of the regulations,
would in the slightest degree affect
the constitutionality or unconsti-
tutionality of the law; and I, there-
fore, purposely abstain from ex-
pressing my opinion upon any one
of the regulations. Should a ques-
tion arise respecting the regulations,
or should a decision upon them be
necessary for any other matter be-
fore the Court, then, of course, I
would be required to express my
opinion; until it does arise I de-
cline doing so ; to use an expression
of Cockburn, C.J., in Rimini v.
362
B.N.A. ACT, s. 93 (4).-SCHOOL.RATE GOOD.
MAIIER v. TOWN Van
OF PORTLAND.
Comments of
Mellish, James
L.J., Sir M.
E. Smith, and
Sir R. Collier.
Praagh, L. R. 8 Q. B. 4.”
Rule refused.
On 20 June 1873 leave to appeal
to Her Majesty in Privy Council
was given by the S. C.
In the Privy Council, 17 July
1874, Joseph Brown, Q.C., and
Mr. Duff, of the Canadian Bar,
were heard for the appellant, a rate-
payer of the town of Portland.
(Instructed by Messrs. Linklater
& Co.)
Sir J. B. Karslake, Q.C., and
King, Q.C. (Att.-Gen. for New
Brunswick), and Cowie, Q.C., were
for the respondents (instructed by
Messrs. Bircham & Co., 46 Par-
liament Street, London). Joseph
Brown, Q.C. : “ The whole point is
whether the Act of 1871 is void as
being unconstitutional. A prelimi-
nary point is taken against us that
we ought to have obtained special
leave to appeal, and that the S. C.
N. B. had no power to give us leave.
[Cowie, Q.C.: It is considered so
desirable by the town of Portland
that the general question should be
heard that I shall not insist on any
technical point. James, L.J. : That
is quite right; this Court would
give special leave. Sir J. W.
Colvile: There was a case the
other day where we made a spe-
cial order, but we laid down the
principle that when these objec—
tions, which ought to have been
taken long before the case is called
on, are made at the hearing of the
appeal that we shall refuse the appli-
cation of the party who took the ex-
ception with costs] The case
actually includes the whole rate,
$12,000, and therefore is of much
more than the appealable amount.
Sec. 93 says: ‘In each province
the legislature may exclusively.’
That may mean exclusively of the
Dominion Parliament. [Mellish,
L.J.: It - is exclusively of the
General Legislature] When the
Earl of Carnarvon introduced the
B. N. A. Bill— [James, L.J.: We
shall not be inﬂuenced by anything
then said. Sir M. Smith: The
way in which the Public Worship
Bill was introduced led me to
think it was a different Bill from
what it turns out to be.] The ﬁrst
question is, What is meant by ‘ de-
nominational’ schools? Secondly,
Whether the Act of 1871 prejudi-
cially affected any right or privi-
lege with respect to denominational
schools which the Roman Catholics
had by law in the province at the
time of the Union, and the rate
being made alike on Roman Catho_
lies and Protestants, and the former
being deprived of the application
of any portion of the funds raised,
to denominational schools which
were the privileges they enjoyed at
the time of the Act of Union.
[Mellish, L.J.: Do you mean to
say they could not pass an Act
creating common schools and mak-
ing a rate? If they have inter-
fered with your schools, so much
as interferes with denominational
schools will be void, but the rest
creating common schools and mak-
ing a rate will be perfectly good.
James, L.J. : Have you any legal
vested right in them ? What right
was then existing had this Act not
passed ?] The right was given by
the Parish Schools Act, 1858. By
that Act they could give funds, and
did, to the denominational schools,
and we are deprived of that. The
Roman Catholics are compelled to
pay taxation for the support of
schools where it is prohibited to
give that religious instruction to
their children which they had a
right to under the previous Parish
Schools Act. Now, a denomi-
national school is a school in
which the religious branch of the
teaching represents the tenets of
some religious body. [Sir R.
Collier: ‘ Denominational’ is a
term of recent introduction in a
great measure (the English School
Act, 1870, 33 & 34 Vict. c. 75.).
It is not found in J ohnson’s Dic-
tionary, nor the edition by Todd,
1827. But in Webster, of 1861,
it is described ‘a class, a sect, par-
ticularly of Christians,’ citing
‘ philosophy dividing it into sects
and denominations,’ Southey. Then
he. gives ‘ denominational" as 're-
B.N.A. ACT, s. 93 (4)—APPROPRIATE TERMS.
363
lating to denominations or sects of
religion. Latham, 1865, ‘ denomi-
nation ’ as meaning ‘ sect, class, or
division, especially of Christians.’
[James, L.J.: a ‘denominational
school must en: vi termini mean a
school established by and exclu-
sively belonging to a particular de-
nomination. There might be a
denominational school for Mahom-
medans or Parsees. Mellish, LJ. :
A school where the peculiar tenets
of a particular sect are taught, and
the tenets of no other sect are
taught, because if you allow all
sects to come at their own hours
and teach their own tenets that
would not make it a denomina-
tional school.] It means a school
where the religious teaching is that
of a particular denomination. It
is used in the same sense in C. S. L.
C. c. 15. s. 103. Now, the schools
existing in New Brunswick at the
time of the Union were governed
by the Parish Schools Act, 21 Vict.
c. 9. [reads the Act]. [Mellish,
L.J.z Has each school a district of
its own, or might the parish say we
will have one Roman Catholic
school, one episcopal school, and
two schools of other denominations
in our parish P] I should think so.
They are to divide their parishes
into convenient school districts, and
may have one school or several in
a district. [Mellish, L.J.z They
say school-house; that rather looks
as if there were not to be_ two
schools in one district. [M12 Brown
reads see. 8 of the Parish School
Act.] James, L.J.z I should have
thought if I wanted terms to express
schools which are not denomina-
tional I should have chosen such
terms as are in clause 8. Sir M.
Smith: Surely this is a parish school
in which there may be all denomi-
nations—those who do not read the
Bible at all; those who read the
Bible in its entirety; and those
who read only the Douay version]
In certain parts of the province
the Roman Catholics form the ma-
jority, in other districts the Pro-
testants are in the ascendancy, and
in others these are equal. The re-
sult was, in the Roman Catholic MAHER v- TOWN
districts, the schools were taught
by Roman Catholic teachers, and
the Douay version of the Bible was
read to the children, the acts of de-
votion and the catechism were Ro-
man Catholic. The intention of
the Act of Parliament of 1858 was
that where the whole or the greater
majority of the inhabitants were
Roman Catholics the schools should
be Roman Catholic, the teaching
being Roman Catholic. [Mellish,
L.J.z If this is so, if the parish
changed, and the Protestants be-
came the majority, they must elect
a different body of trustees and
change everything] No doubt,
if there was a district vacated by
the Roman Catholics and taken
possession of by the Protestants, it
is impossible to deny that such was
the intention of the Act of Parlia-
ment. The provincial legislature
having in view the variety of opi-
nion which prevailed, the intention
was where you get a mixed popula-
tion there should be amixed religious
teaching, or if the parents object to
it, probably none; but where you
get a Roman Catholic population,
you should have Roman Catholic
teaching; and where you had a
Protestant population, you might
have Protestant teaching. There
is a large part of the country where
they are entirely Roman Catholic.
[Mellish, L.J.z Still, if a Pro-
testant child came, he would have
as much right to be taught the
Christian religion as any child of
Roman Catholic parents] The Bible
is not regarded as a sectarian book.
[Sir B. Collier: Yes. It is in
the Index Expurgatorius. Mellish,
I1.J . : ‘ The Bible ’ means the Eng-
lish Bible, therefore it means the
Board of Education shall secure
the reading of the English version.
James, L.J.z This is as clear an
anti-denomination school as can
be_] I am obliged to admit it is
a parish school, but the consequence
by no means follows that it is not a
denominational school in a part of
the province where the inhabitants
are of one denomination. Where
OF PORTLAND.
Comments of
their Lordships
in P. C.
364'.‘
B.N.A. ACT, s. 93 (4).—SECTABIAN MAJORITY.
MAKER v. Town
or PORTLAND.
Comments of
their Lordships
in P. C.
there is a Roman Catholic teacher,
and where Roman Catholic devo-
tions and catechisms are used, any
inhabitant would call it a Roman
Catholic school. Names, L.J. :
Would you call the Irish schools
‘ denominational schools ’? They
are exactly the same as these schools.
These must have been taken from
the model of the Irish schools, and
they are not denominational. Mel-
lish, L.J. : Except that they have a
patron, the parish priest, who has a
good deal to do with them. There
are no express words in the Act,
1858, which say they may teach any
denominational religion they please.
Sir J. W. Colvile: Your argument
would be against the repeal of the
Act- It could not make those
schools denominational, the legal
constitution of which was that they
were not denominational] I do
not say it would. [Mellish, L.J. :
You say this Act [l858]could never
be altered by the local legislature]
It is enough to say they are pro-
hibited by the B. N. A. Act from
taking away the right of a religious
majority in any particular dis-
trict, the right to have their own
books of devotion and their own
Bible read and taught in that
school. [Mellish, L.J. : Your ar-
gument goes to repeal the substance
of the 93rd section, which says the
legislature may exclusively make
laws in relation to education; you
say they cannot] I do not go that
length. I say they fall under the
restrictions put on their powers by
sub-sec. 1. [Mellish, L.J. : A B0-
man Catholic majority would have
the power of making a Roman
Catholic school. I do not see how
you could make any diﬁerence be-
tween the places where they had
not a majority at the time of the
passing of the Act, and where they
might get one hereafter] They
have taken away from the totality of
the Roman Catholic or Protestant in-
habitants of the district, the power
to establish schools in which their
own religious tenets are taught.
They cannot establish such schools
under the new Act. If there were
an immigration of Protestants into a
Roman Catholic district, and a sub-
sequent change in the religious views
of the majority, that change would
affect the character of the school.
Is ‘it possible to say these schools
should not be denominational,
having regard to the way in which
the Act was worked ? Names, L.J.:
I do not think we can look at that;
we have a plain Act of Parliament
to construe, and we have nothing
to do with the mode in which it is
worked] ' The legislature in passing
this Act of Union may be sup-
posed to have had regard to the
state of the religious teaching at
the time, and the wishes of the
majority. [James, L.J.: They knew
what the law was] They must be
taken to have knowledge of the state
of things, that there were a great
number of districts in this province
where Roman Catholic teachers
were elected, Roman Catholic cate-
chisms and books were used. That
state of things is distinctly pro-
hibited by the new Act, 1871,
which says in terms the schools
shall not be sectarian. [Mellish,
L.J. : Must not a ‘ denominational
school’ within the meaning of the 1st
sub-sec, sec. 93, be a school which
is to be always denominational?
‘Vould a school which may be de-
nominational one year and belong to
a particular sect, and then the next
year to another sect, according to
the majority of the inhabitants in
its favour, be a denominational
school which any particular class
have by law ?] I cannot say they
were denominational in perpetuity.
I am compelled to admit they
might cease to be so, but still they
would be so as long as the majority
of the inhabitants of a district con-
tinued in the same faith, as they do
for generations in these parts. Sub-
sec. 2, sec. 93, is intended to apply
to the separate and the dissentient
schools of U. C. and L. C., establish-
ed for the Roman Catholic and Pro-
testants by Acts of Parliament,
there being in those Acts of Parlia-
ment express provision for the esta-
blishment of these schools [see C. S.
B.N.A. ACT, s. 93 (4).—VOTES CHANGE SCHOOL.
365
L. C. 1861, 0.15.; C. S.U. C. 1859,
cc. 64. 65.], and, therefore, sub-
sec. 2 was not intended to apply to
the schools of New Brunswick or
Nova Scotia. [See R. S. N. 8., 3rd
series, c. 58. ; 28 Vict. cc. 28. 29.;
29 Vict. c. 30.] Therefore, by in-
ference, sub-sec. l was intended to
apply to the parliamentary schools
in Nova Scotia. That is, these
parish schools which in Protestant
districts were Protestant schools,
and in Catholic districts were Ca-
tholic schools. [Mellish, L.J. : Sub-
sec. 1. would clearly apply to R0-
man Catholic schools established
by Roman Catholic money.] It is
not very likely the Legislature had
that case before them. I am com-
pelled to admit what is a Roman
Catholic school this year may be-
come a Protestant school the next.
Still, what the legislature had in
view was the state of things existing,
and the privileges enjoyed by either
Protestants or Roman Catholics at
the time of the Act of Union.”
Mr. Duff, Q.C.: “The people
of this district have attempted to
obtain redress through the Domi-
nion Parliament, but it has refused
to move until this Committee’s
judgment is known. At the
time of the Union all the laws on
the subject of education in On-
tario, Quebec, and New Brunswick
had a twofold object—the one
was secular education, and the
other was religious instruction com-
bined with that secular education.
That was particularly the case with
regard to Lower Canada, where the
rights of the Protestant minority
were secured by what are called
dissentient schools. The rights of
the Roman Catholic minority in
Upper Canada were secured by
what are termed separate schools.
The rights of these two classes of
Christians, the Roman Catholics and
the Protestants, were secured in New
Brunswick by sec. 8 of the Act of
1858. [Mellish, L.J.: How were
the Catholic schools in Upper Can-
ada and the Protestant schools in
Lower Canada managed P] By an
assessment on themselves separately,
s. 15. [Mellish, L.J. : Were there
any schools clearly denominational
schools, Roman Catholic or Pro-
testant, in any one of the four i
provinces which were supported by
rates on all the Queen’s subjects,
without reference to their religion ?]
No. The language of sub-sec. 1 is
capable of being applied to a right
such as this—a right to call into
existence schools exclusively of
any particular denomination under
certain conditions of time and
place. The right would exist even
if those schools themselves did not
exist. The language is different
from the other sub-sections. It is
not a system of separate schools, it
is not a system of denominational
schools, but it is a right in respect
of denominational schools. That
right might exist, capable of being
called into existence by right of
the law under local circumstances,
and it was called into existence.
[J ames, L.J. : That is to say, that
if a school might fall into the hands
of persons entirely Roman Catholic
or entirely Protestant, there would
be Roman Catholic electors and
Protestant electors, and a Roman
Catholic master and a Protestant
master appointed. The school
might be so worked as to give
it a denominational character, but
to say that because it has assumed
that character it is therefore a
denominational school, any injury
to which would be unconstitutional,
is monstrous.] The 8th sec.
of the Act of 1858 authorizes re-
ligious books to be used; they have
their Douay Bible, they practise
their acts of devotion. A school
so constituted would be legally con-
stituted under the Act. The right
to constitute such a school is a right
secured to them by law in respect
of a denominational school. [J ames,
L.J. : It is a right to the ratepayers
of a district to establish a school,
but it is not a right to a denomina-
tion. It is a right to the ratepayers,
to whatever denomination they be-
long, but because the ratepayers may
belong to one denomination by an
overwhelming majority, that does
MAEER v. Town
or PoRTLAND.
Comments of
their Lordships
n P. C
866 B.N.A. ACT, s. 93 (4)-rowan TO REPEAL ACT.
MAHERP- TOWN not make the school denomina-
or PORTLAND.
Judgment of
P. C.
tionaL] The 93rd sec. seems to
secure some such right, because
the other rights, the rights of the
system of separate schools in Upper
and Lower Canada, were seemed by
the other sections. [Mellish, L.J. :
I do not agree with you there, be-
cause I can ﬁnd nothing in the lst
sub-sec. which prevented the legis-
lature of Upper Canada repealing
the peculiar laws by which the
Roman Catholic schools in Upper
Canada were established. The 2nd
sub-sec. assumes that by the lst sub-
sec. that has been prevented, but it
does not itself enact it. [His Lord-
ship read the 2nd sub-sec] There
is nothing to prevent the legis-
lature in Upper Canada repealing
all the powers, privileges, and
duties conferred on separate schools
for the Queen’s subjects in Upper
Canada except the 1st sub-sec]
The 3rd sub-sec. has some bearing.
[Mellish, L.J. : If you are right
that the parish schools in New
Brunswick were denominational
schools, that would be a system of
dissentient separate schools in New
Brunswick, and the 3rd sub-sec.
would apply to it.] That is not
my contention. [J ames, L.J. : Do
you really go so far as to say that
the Act establishing parish schools
has never been repealed? Was there
any Act that could not be repealed
by the legislature P] If they simply
repealed the Act and went no fur-
ther, we should not be injured.
[James, L.J.: If they simply re-
pealed the Act, there would be no
privilege interfered with] We
should not then be supporting
schools of other denominations.
[James, L.J. : It seems idle to say
they cannot repeal the Act.] ”
17th July 1874. James, L.J.
[there being also present Sir J. W.
Colvile, Mellish, L.J., Sir Mon-
tague E. Smith, and Sir R. Collier]
delivered the following judgment:
“ Their Lordships have been unable
to entertain any doubt whatever
upon this question. The point is
a very short point, and depends up-
on the construction of a very few
words in the Act constituting the
Dominion of Canada. The ques-
tion alone to which we. desired
counsel to conﬁne themselves, as
lying at the root of the whole thing,
is whether the schools which exist-
ed in New Brunswick under the
Public Schools Act, which existed
there before the new Act, were de-
nominational schools or not. I
think the Council would ﬁnd it im-
possible to express their views on
the subject in any better or more
forcible language than that which
is found in the judgment of Fisher,
J., which is probably the more
valuable upon these points, because,
as far as their Lordships are able to
gather, Fisher, J ., personally ex-
pressed some doubt as to the policy
of the new system. Mr. Jus-
'tice Fisher’s language, after giving
some other description of the old
Schools Act, is-‘ It provided for a
school library in each district by a
money grant in aid of the amount
raised in the locality for that pur-
pose, and placed the selection of
books under the control of the
Board of Education, but expressly
excluded works of a licentious,
vicious, or immoral tendency, or
hostile to the Christian religion, or
works on controversial theology.
This is the only part of the law in
which anything of a denominational
character is referred to in any way,
and it shows how zealous the legis-
lature was in guarding the law and
in preserving the schools from any
denominational or sectarian ten-
dency. Provision was made for
the education of the children of the
whole people in schools of every
grade, and by teachers of both
sexes, and by the superior school
the wants of higher education were
provided for. The whole machinery
of the Act is designed to make the
schools common to the children of
every man, irrespective of his reli-
gious opinions. The Act recognises
the agreement of the inhabitants of
any locality with a teacher licensed
by the Board of Education, when
they have provided ‘ a sufficient
school house ’ and secured the
B.N.A. ACT, s. 93 (4).--NO PECULIAR RIGHT.
367
necessary salary, raised by volun-
tary contributions or tuition fee.
It contains provisions for voluntary
assessment in the district, parish, or
county where the ratepayers deter-
mine to adopt that mode of sup-
porting the schools, and in such
case the schools are declared to be
free to the children of all the in-
habitants. The system is prescrib-
ed by the Board of Education; the
localities take an active part in the
establishment and government of
the schools, subject to the general
control of the Government. The
local agency is exercised, and the
local oﬂicers appointed in the same
manner as for the government and
support of the poor, the highways, or
any other local or parochial objects.
Neither class, creed, nor colour
affect or inﬂuence the one more
than the other. The only qualiﬁ-
cation for the electors of any oﬁicer
is that they are to be ratepayers
upon real or personal property, or
income. No class or creed had
under the Act any peculiar right,
either in the general government
of the whole province or in any
parish or school. Now, when all
the machinery for working the
Acts relating to parish schools had
been made, is it nota striking proof
of the determination of the legisla-
ture to avoid the very thing which
it is contended the Act authorizes,
by restricting the Board of Educa-
tion to make rules and regulations
in this respect, and expressly ex-
cluding from the school libraries
works hostile to the Christian reli-
gion, or works on controversial
theology; while it left the inhabi—
tants free to elect their local agents
who should employ the teachers
and look after the schools. To
secure to every man, and the child
of every man, a just equality with
regard to his religious faith, it
enacted, in effect, that the great
leading principles of Christianity
should be inculcated in the schools;
but there should not be in the
library a book upon controversial
theology, or, in other words, with
denominational teaching.’ [See
ante, p. 340].
with that mode of
the law by Fisher, J.
been contended on the part of
the appellant that de facto they be-
came denominational schools in this
way—that is to say, that whereas
the whole machinery was left local,
that the ratepayers had the power
of appointing the master, the rate-
payers had the power of appointing
the trustees of the schools, but
where the whole inhabitants of a
district, or the great majority of a
district, belonged ‘to the Roman
Catholic faith, or belonged to a
Protestant sect, there they could
so work the school practically as to
give it a denominational character
or a denominational hue ; that is to
say, if all the children were Roman
Catholics, Roman Catholic teaching
would be found in that school; but
the fact that that might be the acci-
dental result of the mode of working
the Act under the old system is not
to give a legal right to that denomi-
nation, which was the right alone
which was intended to be protected
by the Federation Act of the Domi-
nion of Canada. It is an accident
which might have happened to-day
and might have been reversed to-
morrow by a change of the inhabi-
tants of the district, or a change in
their views; and that is not a thing
to which it is possible to give the
colour of a legal right. Their
Lordships are, therefore, of opinion
that there is nothing in the ground
taken by the appellant, or anything
unconstitutional in the Act of New
Brunswick, and, therefore, their
Lordships will recommend Her
Majesty that the appeal be dis-
missed with costs.” [The above
record and the shorthand notes of
the above judgment were kindly
lent to me by Mr. Groves, of Messrs.
Bircham & Co., 46, Parliament
Street, Westminster, who were the
agents for the successful respon-
dents]
A medical practitioner, register-
ed in England under the Imperial
Medical Act, 31 Vict. c. 29., which
Their Lordships MAHER v. Town
agree entirely with that View and W PORTLAND-
expressing Judgment of
It has P'G
368 B.N.A. ACT, s. 93 (4).—MED10AL PRACTITIONERS.
REG. 1). Cor.-
‘LEGE or PHY-
SICIANS.
enacts that every person registered
under that Act may practise in any
part of Her Majesty’s Dominions,
was held to be entitled without ex--
amination to practise in Ontario on
payment of the proper fees. See Reg.
2). College of Physicians, Dec. 27 ,
1879, 44 U. C. Q. B. 564. Hag-
arty, C J ., said: Shortly before
confederation the then Parliament
of Canada passed 29 Vict. (1865)
c. 34., providing for a register of
licensed practitioners, and for admis~
sion thereto on a fee of $5 for
qualiﬁcation obtained up to Jan. 1,
1866, and not to exceed $10 for
qualiﬁcation obtained thereafter.
Schedule A. contained a list of per~
sons qualiﬁed for registration, in~
cluding a holder of a certiﬁcate of
registration under the Imperial Act-
21 85 22 Vict. c. 90., or any Act
amending the same. On 24 March
1874, the Ontario Act, 37 Vict.
c. 30. [see R. S. O. c. 142.
s. 24], amended the law, the main
provision being, all persons quali~
ﬁed under schedule B. prior to
July 1870 may register on pay~
ment of a fee; and sec. 25, all
persons not so registered shall sub-
mit to examination. Schedule B.
allows as a qualiﬁcation the certi-
ﬁcates of registration under the
Imperial Medical Act, or any Act
amending the same. But as the
present applicant obtained his Im_
perial qualiﬁcation long after 1870,
it is urged he cannot claim any privi~
lege therefrom. . . . It was urged
by the defendants that as the sub-
ject of education was one in which
the exclusive right was given to the
province, we should read the sub-
sequent Imperial Act as not inter-
fering with the right so granted. To
this it may be urged that where the
Federation Act speaks of any such
exclusive right, it means exclusive as
opposed to any attempt to legislate
by the Dominion Parliament. [See
Smiles v. Belford, 1877, 1 A. O.
R. 436; Note, ante, sec. 91, sub-
sec. 23.] “But it appears to us
that the language of the Imperial
Act already referred to is too clear
for dispute. It declares pointedly
and most. distinctly that a person
on its register shall be entitled to
registration in ‘ any colony,’ on
payment of the fee (if any) re-
quired for such registration; and
the deﬁnition of ‘ colony ’ clearly in-
cludes Canada.” Mandamus grant-
ed to admit the applicant.
In Nova Scotia and New
Brunswick, Killam, J., said in
Barrett’s case, 7 Man. L. R.
291: “All could be compelled to
contribute to the support of the
public schools by direct taxation,
without reference to religious belief
or the existence of denominational
schools, and there was no recognis-
able right to have the latter main~
tained in any way at the public
expense, or by any system of taxa-
tion.” Free schools were introduced
in Nova Scotia in 1865, which in-
volved the levying of an assessment
upon the inhabitants of the several
school sections of the townships
for the erection of school-houses and
payment of teachers. Att.-Gen. of
Nova Scotia 1;. Axford, 17 N. S. L.
B., p. 113.
NORTH-WEST TERRITORIES—It
was provided by the North-West
Territories Act, 1880, 43 Vict.
c. 25. s. 9, that the Lieutenant-
Governor in Council, or the Lieu-
tenant-Governor by and with the
advice and consent of the legislative
assembly, as the case may be, shall
have such power to make ordinances
for the government of the North-
West Territories as the Governor
in Council may, from time to time,
confer on him: provided alwa '6
that such powers shall not at any
time be in excess of those conferred
by the 92nd and 93rd sections of
the B. N. A. Act upon the legisla-
tures of the several provinces of the
Dominion. Sub-sec. 2. Provided
that no ordinance to be made shall
be inconsistent with or repeal any
provision of any Act of the Par-
liament of Canada in the schedule
attached to the Act, or any future
Act expressly referring to these
territories, or delared to be in force
in them, or impose any ﬁne or
penalty exceeding $100.
B.N.A. AoT, S. 93.—MANITOBA AoT. 369
A question arose in Manitoba under the “Public
Schools Act,” 1890, of that province, and as its decision
rested partly on the 93rd section of the B. N. A. Act,
and partly on the “Manitoba Act” passed by the
Dominion Parliament 187 0, 33 Vict. c. 3., which was
conﬁrmed by the Imperial Act 34 80 35 Vict. c. 28., it
is considered important to give here the sections of the
Manitoba Act which were cited in the Manitoba school
cases.
THE MANITOBA ACT.
sTATUTE or CANADA—33 VICT. (1870) C. a.
An Act to amend and continue the Act 32 & 33
Vict. [Dom.] c. 3.; and to establish and pro-
vide for the Government of the Province of
Manitoba. [Assentecl to 12th M ay 1870.]
HEREAS it is probable that Her Majesty the
Queen may, pursuant to the British North Ame-
rica Act, 1867, be pleased to admit Rupert’s Land and
the North-Ivestern territory into the Union or Dominion
of Canada, before the next session of the Parliament of
Canada.
2. On, from, and after the said day on which the
Order of the Queen in Council shall take eﬁect as afore-
said, the provisions of the British North America Act,
1867, shall, except those parts thereof which are in
terms made or, by reasonable intendment, may be held
to be specially applicable to, or only to affect one or
more, but not the whole, of the provinces now com-
posing the Dominion, and except so far as the same
may be varied by this Act, be applicable to the pro-
vince of Manitoba, in the same way and to the like
extent as they apply to the several provinces of Canada,
s 2340. A A
Preamble.
Certain provi-
sions of B.N.A.
Act, 1867, to
apply to Maui-
toba.
370 B.N.A. ACT, s. 93.—MANITOBA ACT.
Certain provi-
sions of B.N.A.
Act, 1867, to
apply.
Legislation
touching
schools subject
to certaln pro-
visions.
Denominational
schools.
Appeal to Gov.-
Gen. in C.
Power reserved
to Parllament.
and as if the province of Manitoba had been one of the
provinces originally united by the said Act.
21, The following provisions of the British North
America Act, 1867, respecting the House of Commons
of Canada, shall extend and apply to the legislative
assembly, that is to say z—Provisions relating to the
election of a Speaker, originally and on vacancies,—-the
duties of the Speakeig—the absence of the Speaker, and
the mode of voting, as if those provisions were here
re-enacted and made applicable in terms to the legis-
lative assembly.
22. In and for the province, the said legislature may
exclusively make laws in relation to education, subject
and according to the following provisions :— -
(1.) Nothing in any such law shall prejudicially affect
any right or privilege with respect to denomi-
national schools, which any class of persons
have by law or practice in the province at the
Union: [see ante p.
(2.) An appeal shall lie to the Governor-General in
Council from any Act or decision of the
legislature of the province, or of any pro-
vincial authority, affecting any right or pri-
vilege of the Protestant or Roman Catholic
minority of the Queen’s subjects in relation to
education:
In case any such provincial law, as from time
to time seems to the Governor - General in
Council requisite for the due execution of the
provisions of this section, is not made, or in
case any decision of the Governor-General in
Council on any appeal under this section is
not duly executed by the proper provincial
authority in that behalf, then, and in every
such case, and as far only as the circum-
B.N.A. ACT, s. 93.—MANITOBA SCHOOL CASES.
371
stances of each case require, the Parliament
of Canada may make remedial laws for the
due execution of the provisions of this section,
and of any decision of the Governor-General
in Council under this section.
In THE CITY or \VINNIPEG v.
BARRETT, in S. C. Oct. 28, 1891,
before Ritchie, C.J., and Strong,
Fournier, Taschereau, and Patter-
son, JJ., 19 S. C. R. 374, reversing
Taylor, C.J., and Bain, J., Dubuc,
J ., dissenting, 7 Man. L. R. 2'73,
and THE CITY or \VINNIPEe v.
LOGAN, from the Ct. Q. B., Mani_
toba, before the last three judges,
14; Dec. 1891, 8 Man. L. B. 3,
which followed the former case,
and which were heard together in
P. C. 30 July, [1892] A. C. 445;
61 L. J. P. C. 58; 67 L. T. 429,
Lord Macnaghten delivered the
following judgment [present also
Lords Watson, Morris, Hannen, Sir
R. Couch, and Lord Shand] :—
“ These two appeals were heard
together. In the one case the
City of Winnipeg appeals from a
judgment of the Supreme Court of
Canada reversing a judgment of the
Court of Queen’s Bench for Mani-
toba—in the other from a subse-
quent judgment of the Court of
Queen’s Bench for Manitoba fol-
lowing the judgment of the
Supreme Court. The judgments
under appeal quashed certain bye-
laws of the city of ‘Vinnipeg which
authorized assessments for school
purposes in pursuance of ‘ The
Public Schools Act, 1890’ [53
Vict. c. 38.], a statute of Manitoba
to which Roman Catholics and
members of the Church of England
alike take exception. The views
of the Roman Catholic Church
were maintained by Mr. Barrett;
the case of the Church of England
was put forward by Mr. Logan.
Mr. Logan was content to rely on
the arguments advanced on behalf
of Mr. Barrett, while Mr. Barrett’s
advisers were not prepared to make
common cause with Mr. Logan,
and naturally would have been
better pleased to stand alone.
“ The controversy which has
given rise to the present litigation
is, no doubt, beset with difficulties.
The result of the controversy is of
serious moment to the province of
Manitoba, and a matter apparently
of deep interest throughout the
Dominion. But in its legal aspect
the question lies in a very narrow
compass. The duty of this Board
is simply to determine as a matter
of law whether, according to the
true construction of the Manitoba
Act, 1870, having regard to the
state of things which existed in
Manitoba at the time of the Union,
the provincial legislature has or
has not exceeded its powers in
passing ‘The Public Schools Act,
1890.’
“Manitoba became one of the
provinces of the Dominion of
Canada under the Manitoba Act,
1870, which was afterwards con-
ﬁrmed by an Imperial statute
known as ‘ The British North
America Act, 1871.’ Before the
Union it was not an independent
province, with a constitution and a
legislature of its own. It formed
part of the vast territories which
belonged to the Hudson’s Bay
Company and were administered
by their oﬂicers or agents.
“The Manitoba Act, 1870, de-
clared that the provisions of the
British North America Act, 1867,
with certain exceptions not material
to the present question, should be
applicable to the province of Mani-
toba, as if Manitoba had been one
of the provinces originally united
by the Act. It established a legis-
lature for Manitoba, consisting of a
CITY or WINNI-
PEG a BARRETT.
AA2
372
B.N.A. ACT, s. 933—RIGHTS BY PRACTICE.
CITY OF WINNI- legislative council and a legislative
PEG 2). BARRETT.
assembly, and proceeded, in sec. 22,
to re-enact with some modiﬁcations
the provisions with regard to edu-
cation which are to be found in sec.
93 of the British North America
Act, 1867. See. 22 of the Mani-
toba Act, so far as it is material, is
in the following terms :—
“ ‘ In and for the province, the
said legislature may exclusively
make laws in relation to education,
subject and according to the fol-
lowing provisions: _
‘ Nothing in any such law
shall prejudicially affect
any right or privilege
with respect to denomi-
national schools which
any class of persons have
by law or practice in the
province at the Union.’
“Then follow two other sub-
sections. Sub-sec. 2 gives an
‘ appeal,’ as it is termed in the Act,
to the Governor—General in Coun~
cil from any act or decision of the
legislature of the province, or of
any provincial authority, ‘ affecting
any right or privilege of the Pro-
testant or Roman Catholic minority
of the Queen’s subjects in relation
to education.’ Sub-sec. 3 reserves
certain limited powers to the
Dominion Parliament, in the event
of the provincial legislature failing
to comply with the requirements of
the section or the decision of the
Governor-General in Council.
“ At the commencement of the
argument a doubt was suggested to the competency of the present
appeal, in consequence of the so-
called appeal to the Governor-
General in Council provided by the
Act. But their Lordships are
satisﬁed that the provisions of sub-
secs. 2 and 3 do not operate to
withdraw such a question as that
involved in the present case from
the jurisdiction of the ordinary
tribunals of the country.
“ Sub-secs. 1, 2, and 3, of sec. 22
of the Manitoba Act, 1870, differ
but slightly from the corresponding
sub-sections of sec. 93 of the
British North America Act, 1867 .
The only important diiference is
that in the Manitoba Act, in sub-
sec. 1, the words ‘ by law ’ are fol-
lowed by the words ‘or practice ’
which do not occur in the corre-
sponding passage in the British
North America Act, 1867. These
words were no doubt introduced to
meet the special case of a country
which had not as yet enjoyed the
security of laws properly so called.
It is not perhaps very easy to deﬁne
precisely the meaning of such an
expression as ‘having a right or
privilege by practice.’ But the
object of the enactment is tolerably
clear. Evidently the word ‘prac-
tice’ is not to be construed as
equivalent to ‘ custom having the
force of law.’ Their Lordships are
convinced that it must have been
the intention of the legislature to
preserve every legal right or privi-
lege, and every beneﬁt or advantage
in the nature of a right or privilege,
with respect to denominational
schools, which any class of persons
practically enjoyed at the time of
the Union.
“What, then, was the state of
things when Manitoba was admit-
ted to the Union? On this point
there is no dispute. It is agreed
that there was no law or regulation
or ordinance with respect to edu-
cation in force at the time. There
were, therefore, no rights or privi-
leges with respect to denomina-
tional schools existing by law. The
practice which prevailed in Mani-
toba before the Union is also a
matter on which all parties are
agreed. The statement on the
subject by Archbishop Taché, the
Roman Catholic Archbishop of St.
Boniface, who has given evidence
in Barrett’s case, has been accepted
as accurate and complete.
“‘There existed,’ he says, ‘in
the territory now constituting the
province of Manitoba a number of
effective schools for children.
“ ‘ These schools were denomina-
tional schools, some of them being
regulated and controlled by the
B.N.A. ACT, s. 93.—STATE BEFORE UNION.
373
Roman Catholic Church, and others
by various Protestant denomina-
tions.
“ ‘The means necessary for the
support of the Roman Catholic
schools were supplied to some ex-
tent by school fees paid by some of
the parents of the children who
attend the schools, and the rest was
paid out of the funds of the church,
contributed by its members.
“ ‘ During the period referred to,
Roman Catholics had no interest
in or control over the schools of the
Protestant denominations, and the
members of the Protestant denomi-
nations had no interest in or control
over the schools of Roman Catholics.
There were no public schools in
the sense of State schools. The
members of the Roman Catholic
Church supported the schools of
their own church for the beneﬁt of
Roman Catholic children, and were
not under obligation to, and did
not contribute to the support of
any other schools.’
“Now, if the state of things
which the Archbishop describes as
existing before the Union had been
a system established by law, what
would have been the rights and
privileges of the Roman Catholics
with respect to denominational
schools? They would have had
by law the right to establish schools
at their own expense, to maintain
their schools by school fees or
voluntary contributions, and to
conduct them in accordance with
their own religious tenets. Every
other religious body which was
engaged in a similar work at the
time of the Union would have had
precisely the same right with re-
spect to their denominational
schools. Possibly this right, if it
had been deﬁned or recognised by
positive enactment, might have had
attached to it as a necessary or
appropriate incident the right of
exemption from any contribution
under any circumstances to schools
of a different denomination. But,
in their Lordships’ opinion, it
would be going much too far to
hold that the establishment of a
national system of education upon
an unsectarian basis is so inconsis-
tent with the right to set up and
maintain denominational schools
that the two things cannot exist
together, or that the existence of
the one necessarily implies or in-
volves immunity from taxation for
the purpose of the other. It has
been objected that if the rights of
Roman Catholics, and of other re-
ligious bodies, in respect of their
denominational schools, are to be
so strictly measured and limited by
the practice which actually pre-
vailed at the time of the Union,
they will be reduced to the con-
dition of a ‘ natural right’ which
‘ does not want any legislation to
protect it.’ Such a right, it was
said, cannot be called a privilege in
any proper sense of the word. If
that be so, the only result is that
the protection which the Act pur-
ports to extend to rights and privi-
leges existing ‘ by practice’ has no
more operation than the protection
which it purports to afford to
rights and privileges existing ‘by
law.’ It can hardly be contended
that, in order to give a substantial
operation and eifect to a saving
clause expressed in general terms,
it is incumbent upon the Court to
discover privileges which are not
apparent of themselves, or to as-
cribe distinctive and peculiar fea-
tures to rights which seem to be of
such a common type as not to
deserve special notice or require
special protection.
“Manitoba having been consti—
tuted a province of the Dominion
in 1870, the provincial legislature
lost no time in dealing with the
question of education. In 1871 a
law was passed which established a
system of denominational educa-
tion in the common schools as they
were then called. A Board of
Education was formed, which was
to be divided into two sections,
Protestant and Roman Catholic.
Each section was to have under its
control and management the dis-
CITY OF WINNI-
PEG '2). BARRETT.
37a B.N.A. ACT, S. 93.—DENOMINATIONAL.
trict of one denomination should
CITY OF WINNI' cipline of the schools of the section.
not prevent the establishment of a
PEGU'BARRETT' Under the Manitoba Act the pro-
vince had been divided into 24 elec-
toral divisions, for the purpose of
electing members to serve in the
legislative assembly. By the Act
of 1871 each electoral division was
constituted a school district in the
ﬁrst instance. Twelve electoral
divisions, ‘ comprising mainly a
Protestant population,’ were to be
considered Protestant school dis-
tricts ; twelve, ‘ comprising mainly
a Roman Catholic population,’ were
to be considered Roman Catholic
school districts. Without the
special sanction of the section there
was not to be more than one school
in any school district. The male
inhabitants of each school district,
assembled at an annual meeting,
were to decide in what manner they
should raise their contributions
towards the support of the school,
in addition to what was derived
from public funds. It is perhaps
not out of place to observe that one
of the modes prescribed was ‘assess-
ment on the property of the school
district,’ which must have involved,
in some cases at any rate, an assess-
ment on Roman Catholics for the
support of a Protestant school, and
an assessment on Protestants for
the support of a Roman Catholic
school. In the event of an assess-
ment, there was no provision for
exemption, except in the case of
the father or guardian of a school
child—a Protestant in a Roman
Catholic school district or a Roman
Catholic in a Protestant school dis-
trict—who might escape by sending
the child to the school of the nearest
district of the other section, and
contributing to it an amount equal
to what he would have paid if he
had belonged to that district.
“ The laws relating to education
were modiﬁed from time to time.
But the system of denominational
education was maintained in full
vigour until 1890. An Act passed
in 1881, following an Act of 1875,
provided among other things that
the establishment of a school dis-
school district of the other denomi-
nation in the same place, and that
a Protestant and a Roman Catholic
district might include the same
territory in whole or in part. From
the year 1876 until 1890 enact-
ments were in force declaring that
in no case should a Protestant rate-
payer be obliged to pay for a Ro-
man Catholic school, or a Roman
Catholic ratepayer for a Protestant
school.
“In 1890 the policy of the past
19 years was reversed ; the denomi-
national system of public educa-
tion was entirely swept away. Two
Acts in relation to education were
passed. The ﬁrst (53 Vict. c. 37
established a Department of Edu-
cation, and a board consisting of
seven members known as the
‘ Advisory Board.’ Four members
of the board were to be appointed
by the Department of Education,
two were to be elected by the pub-
lic and high school teachers, and
the seventh member was to be
appointed by the University Coun-
cil. One of the powers of the
Advisory Board was to prescribe
the forms of religious exercises
to be used in the schools.
“The Public Schools Act, 1890
(53 Vict. c. 38.), enacted that. all
Protestant and Roman Catholic
school districts should be subject
to the provisions of the Act, and
that all public schools should be
free schools. The provisions of
the Act with regard to religious
exercises are as follows :—
“ ‘ 6. Religious exercises in the
public schools shall be conducted
according to the regulations of the
Advisory Board. The time for
such religious exercises shall be
just before the closing hour in the
afternoon. In case the parent or
guardian of any pupil notiﬁes the
teacher that he does not wish such
pupil to attend such religious
exercises, then such pupil shall be
dismissed before such religious
exercises take place.
B.N.A. ACT, s. 93.—PBEJUDICIALLY AFFECTED. 375
“ ‘ '7. Religious exercises shall be
held in a public school entirely at
the option of the school trustees
for the district, and upon receiving
written authority from the trustees,
it shall be the duty of the teachers
to hold such religious exercises.
“ ‘ 8. The public schools shall be
entirely non-sectarian, and no re-
ligious exercises shall be allowed
therein except as above provided.’
“ The Act then provides for the
formation, alteration, and union of
school districts, for the election of
school trustees, and for levying a
rate on the taxable property in each
school district for school purposes.
In cities the Municipal Council is
required to levy and collect upon
the taxable property within the
municipality such sums as the
school trustees may require for
school purposes. A portion of the
legislative grant for educational
purposes is allotted to public
schools; but it is provided that
any school not conducted according
to all the provisions of the Act, or
any Act in force for the time being,
or the regulations of the Depart-
ment of Education, or the Advisory
Board, shall not be deemed a public
school within the meaning of the
law, and shall not participate in
the legislative grant. Sec. 141
provides that no teacher shall use
or permit to be used as text books
any books except such as are
authorized by the Advisory Board,
and that no portion of the legisla-
tive grant shall be paid to any
school in which unauthorized books
are used. Then there are two sec-
tions (1'78 and 17 9) which call for
a passing notice, because, owing
apparently to some misapprehen-
sion, they are spoken of in one of
the judgments under appeal as if
their effect was to conﬁscate Roman
Catholic property. They apply to
cases where the same territory was
covered by a Protestant school dis-
trict and by a Roman Catholic
district. In such a case Roman
Catholics were really placed in a
better position than Protestants.
Certain exemptions were to be
made in their favour if the assets
of their district exceeded its liabili-
ties, or if the liabilities of the
Protestant school district exceeded
its assets. But no corresponding
exemptions were to be made in the
case of Protestants.
“ Such being the main provisions
of the Public Schools Act, 1890,
their Lordships have to determine
whether that Act prejudicially
affects any right or privilege with
respect to denominational schools
which any class of persons had by
law or practice in the province at
the Union.
“ Notwithstanding the Public
Schools Act, 1890, Roman Catho-
lics and members of every other
religious body in Manitoba are
free to establish schools throughout
the province; they are free to
maintain their schools by school
fees or voluntary subscriptions;
they are free to conduct their
schools according to their own re-
ligious tenets without molest-ation
or interference. No child is com-
pelled to attend a public school.
No special advantage other than
the advantage of a free education
in schools conducted under public
management is held out to those
who do attend. But then it is said
that it is impossible for Roman
Catholics, or for members of the
Church of England (if their views
are correctly represented by the
Bishop of Rupert’s Land, who has
given evidence in Logan’s case), to
send their children to public
schools where the education is not
superintended and directed by the
authorities of their church, and
that, therefore, Roman Catholics
and members of the Church of
England who are taxed for public
schools, and at the same time feel
themselves compelled to support
their own schools, are in a less
favourable position than those who
can take advantage of the free
education provided by the Act of
1890. That may be so. But what
right or privilege is violated or
CITY OF WINNI—
rne v. BARRETT.
376
B.N.A. ACT, s. 93.—BROPHY’S CASE.
CITY or WINNI-
PEG 2). BARRETT.
prejudicially affected by the law?
It is not the law that is in fault.
It is owing to religious convictions
which everybody must respect, and
to the teaching of their church, that
Roman Catholics and members of
the Church of England ﬁnd them-
selves unable to partake of advan-
tages which the law oﬁers to all
alike.
“ Their Lordships are sensible of
the weight which must attach to
the unanimous decision of the
Supreme Court. They have
anxiously considered the able and
elaborate judgments by which that
decision has been supported. But
they are unable to agree with the
opinion which the learned judges
of the Supreme Court have ex-
pressed as to the rights and privi-
leges of Roman Catholics in Mani-
toba at the time of the Union.
They doubt whether it is permissi-
ble to refer to the course of legisla-
tion between 1871 and 1890 as a
means of throwing light on the
previous practice or on the con-
struction of the saving clause in
the Manitoba Act. They cannot
assent to the view, which seems to
be indicated by one of the members
of the Supreme Court, that public
schools under the Act of 1890 are
in reality Protestant schools. The
legislature has declared in so many
words that ‘ the public schools shall
be entirely unsectarian,’ and that
principle is carried out throughout
the Act.
“ With the policy of the Act of
1890 their Lordships are not con-
cerned. But they cannot help
observing that, if the views of the
respondents were to prevail, it
would be extremely difficult for the
provincial legislature, which has
been entrusted with the exclusive
power of making laws relating to
education, to provide for the edu-
cational wants of the more sparsely
inhabited districts of a country
almost as large as Great Britain,
and that the powers of the legisla-
ture, which on the face of the Act.
appear so large, would be limited
to the useful but somewhat humble
ofﬁce of making regulations for the
sanitary conditions of school-houses,
imposing rates for the support of
denominational schools, enforcing
the compulsory attendance of scho-
lars, and matters of that sort.
“In the result their Lordships
will humbly advise Her Majesty
that these appeals ought to be
allowed with costs. In the City of
Winnipeg 'v. Barrett it will be pro-
per to reverse the order of the
Supreme Court with costs, and to
restore the judgment of the Court
of Queen’s Bench for Manitoba.
In the City of Winnipeg '12. Logan
the order will be to reverse the
judgment of the Court of Queen’s
Bench, and to dismiss Mr. Logan’s
application, and discharge the rule
nisz' and the rule absolute, with
costs.”
BROPHY v. THE Arr-GEN. or
MANITOBA, from the S. C. of
Canada, before Strong, C.J., Four-
nier, Taschereau, Gwynne, and
King, JJ., Feb. 20, 1894, 22
S. C. R. 577, a special case referred
by the Governor-General in Coun-
cil to the Sup. Ct; in P. C. 29
Jan, [1895] A. C. 202; 63 L. J.
P. C. 14; 62 L. T. 10. Lord
Herschell, L.C., delivered the fol-
lowing judgment of the Board
[present also, Lords \Vatson, Mac-
naghten, and Shand] :—
“In the year 1890 two Acts
were passed by the Legislature of
Manitoba relating to education.
One of these created a Department
of Education and an ‘ Advisory
Board.’ The board was to consist
of seven members, four of whom
were to be appointed by the De-
partment of Education, two to be
elected by the public and high
school teachers of the province,
and one to be appointed by the
University Council. The Advisory
Board were empowered (amongst
other things) to authorize text
books for the use of pupils and to
prescribe the form of religious
exercises to be used in schools.
B.N.A. ACT, s. 93._-APPEALS TO eov.
377
appeal as is admissible by sub-sec. BRoPHY v.
3 of sec. 93 of the British North ATT--GEN. or
America Act, 1867, or by sub-sec_ MANITOBA.
“ The other Act, which was
termed ‘The Public Schools Act,’
established a system of public edu-
cation ‘entirely non'sectaria-n,’ no
religious exercises being allowed
except those conducted according
to the regulations of the Advisory
Board. It will be necessary here-
after to refer somewhat more in de-
tail to the provisions of this Act. -
“The Act came into force on
the 1st of May 1890. By virtue
of its provisions, bye-laws were
made by the municipal corporation
of Winnipeg, under which a rate
was to be levied upon Protestant
and Roman Catholic ratepayers
alike for school purposes. An
application was thereupon made to
the Court of Queen’s Bench of
lManitoba to quash these bye-laws
on the ground that the Public
Schools Act, 1890, was vultra tires
of the provincial legislature, inas-
much as it prejudicially affected a
right or privilege with respect to
denominational schools which the
Roman Catholics had by law or
practice in the province atv the
Union. The Court of Queen’s
Bench refused the application,
being of opinion that the Act was
int'ra tires. The Supreme Court
of Canada took a diﬁerent view,
but upon appeal this Board reversed
their decision, and restored the judg-
ment of the Court of Queen’s Bench.
“ Memorials and petitions were
afterwards presented to the Gover-
nor-General in Council on behalf
of the Roman Catholic minority of
Manitoba by way of appeal against
the Education Acts of 1890. These
memorials and petitions having
been taken into consideration, a
case in relation thereto was, in pur-
suance of the provisions of the Su-
preme and Exchequer Courts Act,
referred by the Governor-General
in Council to the Supreme Court
of Canada. The questions referred
for hearing and consideration were
the following :—
“ ‘ (1) Is the appeal referred to
in the said memorials and petitions,
and asserted thereby, such an
2 of sec. 22 of the Manitoba Act,
33 Vict. (1870) c. 3., Canada?
“ ‘ (2) Are the grounds set forth
in the petitions and memorials such
as may be the subject of appeal
under the authority of the sub-
sections above referred to or either
of them P
“ ‘ (3) Does the decision of the
Judicial Committee of the Privy
Council in the cases of Barrett 1'.
The City of WVinnipeg and Logan
1'. The City of YVinnipeg [previous
case, [1892] A. C. 445; 61 L. J.
P. C. 58; 67 L. T. 429] dispose
of or conclude the application for
relress based on the contention
that the rights of the Roman
Catholic minority which accrued to
them after the Union under the
statutes of the province have been
interfered with by the two statutes
of 1890 complained of in the said
petitions and memorials?
“ ‘ Does sub-sec. 3 of sec. 93
of the British North America Act,
1867, apply to Manitoba P
“ ‘ (5) Has His Excellency the
Governor-General in Council power
to make the declarations or reme-
dial orders which are asked for in
the said memorials and petitions,
assuming the material facts to be as
stated therein, or has His Excel-
lency the Governor-General in
Council any other jurisdiction in
the premises P
“ ‘ (6) Did the Acts of Manitoba
relating to education, passed prior
to the session of 1890, confer on or
continue to the minority “ a right or
privilege in relation to education ”
within the meaning of sub-sec. 2- of
sec. 22 of the Manitoba Act, or
establish a system of separate or
dissentient schools “ within the
meaning of sub-sec. 3 of sec. 93 of
the British North America Act,
1867,” if said sec. 93 be found
applicable to Manitoba; and if so,
did the two Acts of 1890 com-
plained of, or either of them, affect
any right or privilege of the
378 B.N.A ACT, s. 93.—COMPARISON on son. ACTS.
Baornr v.
ATT.-GEN. or
MANIToBA.
minority in such a manner that an
appeal will lie thereunder to the
Governor-General in Council? ’
“ The learned judges of the
Supreme Court. were divided in
opinion upon each of the questions
submitted. They were all, how-
ever, by a majority of three judges
out of ﬁve, answered in the nega-
tive. _
“The appeal to the Governor-
General in Council was founded
upon the 22nd section of the Mani-
toba Act, 1870, and the 93rd sec-
tion of the British North America
Act, 1867. By the former of these
statutes (which was conﬁrmed and
declared to be valid and effectual
by an Imperial statute) Manitoba
was created a province of the Do-
minion.
“ The 2nd section of the Manitoba
Act enacts that after the prescribed
day the British North America
Act shall—[reads it, see p. 369].
It cannot be questioned, therefore,
that see. 93 of the British North
America Act (save such parts of it
as are specially applicable to some
only of the provinces of which the
Dominion was in 1870 composed)
is made applicable to the province
of Manitoba except in so far as it
is varied by the Manitoba Act.
The 22nd section of that statute
deals with the same subject-matter
as see. 93 of the British North
America Act. The 2nd sub-section
of this latter section may be dis-
carded from consideration, as it is
manifestly applicable only to the
provinces of Ontario and Quebec.
The remaining provisions closely
correspond with those of sec. 22 of
the Manitoba Act. The only
difference between the introductory
part and the 1st sub-section of the
two sections is that in the Manitoba
Act the words ‘ or practice ’ are
added after the word ‘law ’ in the
1st sub-section. The 3rd sub-sec-
tion of sec. 22 of the Manitoba Act
is identical with the 4th sub-section
of sec. 93 of the British North
America Act. The 2nd and 3rd
sub-sections, respectively, are the
same, except that in the 2nd sub-
section of the Manitoba Act the
words ‘ of the legislature of the
province or ’ are inserted before
the words ‘ any provincial autho-
rity,’ and that the 3rd sub-section
of the British North America Act
commences with the words ‘where
in any province a system of sepa-
rate or dissentient schools exists by
law at the Union or is thereafter
established by the legislature of the
province.’ In view of this com-
parison, it appears to their Lord-
ships impossible to come to any
other conclusion than that the 22nd
section of the Manitoba Act was
intended to be a substitute for the
93rd section of the British North
America Act. Obviously, all that
was intended to be identical has
been repeated, and in so far as the
provisions of the Manitoba Act
differ from those of the earlier
statute, they must be regarded as
indicating the variations from those
provisions intended to be intro-
duced in the province of Manitoba.
“In their Lordships’ opinion,
therefore, it is the 22nd section
of the Manitoba Act which has to
be construed in the present case,
though it is, of course, legitimate
to consider the terms of the earlier
Act, and to take advantage of any
assistance they may aiford in the
construction of enactments with
which they so closely correspond,
and which have been substituted
for them.
“ Before entering upon a critical
examination of the important sec-
tion of the Manitoba Act, it will be
convenient to state the circum-
stances under which that Act was
passed, and also the exact scope of
the decision of this Board in the
case of Barrett '0. The City of
Winnipeg, which seems to have
given rise to some misapprehension.
In 1867 the union of the provinces
of Canada, Nova Scotia, and New
Brunswick took place. Among
the obstacles which had to be over-
come in order to bring about that
union, none perhaps presented
B.N.A. ACT, 93.—HISTORY or MAN. scHooLs. 379
greater difficulty than the differ-
ences of opinion which existed with
regard to the question of education.
It had been the subject of much
controversy in Upper and Lower
Canada. In Upper Canada a
general system of undenominational
education had been established, but
with provision for separate schools
to supply the wants of the Catholic
inhabitants of that province. The
2nd sub-section of sec. 93 of the
British North America Act ex-
tended all the powers, privileges,
and duties which were then by law
conferred and imposed in Upper
Canada on the separate schools and
school trustees of the Roman
Catholic inhabitants of that pro-
vince to the dissent-ient schools of
the Protestant and Roman Catholic
inhabitants of Quebec. There can be
no doubt that the views of the Roman
Catholic inhabitants of Quebec and
Ontario with regard to education
were shared by the members of the
same communion in the territory
which afterwards became the pro-
vince of Manitoba. They regarded
it as essential that the education of
their children should be in accord-
ance with the teaching of their
church, and considered that such
an education could not be obtained
in public schools designed for all
the members of the community
alike, whatever their creed, but
could only be secured in schools
conducted under the inﬂuence and
guidance of the authorities of their
church. At the time when the
province of Manitoba became part
of the Dominion of Canada, the
Roman Catholic and Protestant
populations in the province were
about equal in ‘number. Prior to
that time there did not exist in the
territory then incorporated any
public system of education. The
several religious denominations had
established such schools as they
thought ﬁt, and maintained them
by means of funds voluntarily con-
tributed by the members of their
own communion. None of them
received any State aid.
“ The terms upon which Mani-
toba was to become a province of
the Dominion were matter of nego-
tiation between representatives of
the inhabitants of Manitoba and of
the Dominion Government. The
terms agreed upon, so far as edu-
cation was concerned, must be taken
to be embodied in the 22nd section
of the Act of 1870. Their Lord-
ships do not think that anything is
to be gained by the inquiry how
far the provisions of this section
placed the province of Manitoba in
a different position from the other
provinces, or whether it was one
more or less advantageous. There
can be no presumption as to the
extent to which a variation was in-
tended. This can only be deter-
mined by construing the words of
the section according to their
natural signiﬁcation.
“ Among the very ﬁrst measures
passed by the Legislature of Mani-
toba was an Act to establish a
system of education in the province.
The provisions of that Act will
require examination. It is sufficient
for the present to say that the
system established was distinctly
denominational. This system, with
some modiﬁcations of the original
scheme, the fruit of later legislation,
remained in force until it was put
an end to by the Acts which have
given rise to the present contro-
versy.
“ In Barret-t’s case the sole ques-
tion raised was, whether the Public
Schools Act of 1890 prejudicially
affected any right or privilege
which the Roman Catholics, by law
or practice, had in the province at
the Union. Their Lordships ar-
rived at the conclusion that this
question must be answered in the
negative. The only right or privi-
lege which the Roman Catholics
then possessed, either by law or in
practice, was the right or privilege
of establishing and maintaining, for
the use of members of their own
church, such schools as they pleased.
It appeared to their Lordships that
this right or privilege remained
BRoPI-IY v
ATT.-GEN. or
MANITOBA.
380 B.N.A. AcT, s. 93.—FUNO'I.‘IONS or A TRIBUNAL.
BRornY v.
AT'1‘.-GEN. or
MANITOBA.
\
untouched, and, therefore, could
not be said to be aﬁected by the
legislation of 1890. It was not
doubted that the object of the
1st sub-section of sec. 22 was to
afford protection to denominational
schools, or that it was proper to
have regard to the intent of the
legislature and the surrounding
circumstances in interpreting the
enactment. But the question which
had to be determined was the true
construction of the language used.
The function of a tribunal is limited
to construing the words employed;
it not justified in forcing into
them a meaning which they cannot
reasonably bear. Its duty is to in-
terpret, not to enact. It is true
that the construction put by this
Board upon the 1st sub-section
reduced within very narrow limits
the protection afforded by that sub-
section in respect of denominational
schools. It may be that those who
were acting on behalf of the Roman
Catholic community in Manitoba,
and those who either framed or
assented to the wording of that
enactment, were under the impres-
sion that its scope was wider, and
that it afforded protection greater
than their Lordships held to be the
case. But such considerations can-
not properly inﬂuence the judgment
of those who have judicially to
interpret a statute. The question
is, not what may be supposed to
have been intended, but what has
been said. More. complete effect
might, in some cases, be given to the
intentions of the legislature, if
violence were done to the language
in which their legislation has taken
shape, but such a course would, on
the whole, be quite as likely to
defeat as to further the object which
was in view. Whilst, however; it
is necessary to resist any temptation
to deviate from sound rules of con—
struction in the hope of more
completely satisfying the intention
of the legislature, it is quite legiti-
mate where more than one con-
struction of aistatute is possible, to
select that one which will best carry
out what appears, from the general
scope of the legislation and the
surrounding circumstances, to have
been its intention.
“With these preliminary obser-
vations, their Lordships proceed to
consider the terms of the 2nd and
3rd sub-sections of sec. 22 of the
Act of 1870, upon the construction
of which the questions submitted
chieﬂy depend. For the reasons
which have been given, their Lord-
ships concur with the majority of
the Supreme Court in thinking
that the main issues are not in any
way concluded either by the deci-
sion in Barrett’s case, or by any
principles involved in that decision.
“ At the outset this question
presents itself. Are the 2nd and
3rd sub-sections, as cont-ended by
the respondent, and atﬁrmed by
some of the judges of the Supreme
Court, designed only to enforce the
prohibition contained in the 1st sub-
section? The arguments against
this contention appear to their
Lordships conclusive. In the ﬁrst
place, that sub-section needs no
further provision to enforce it. It
imposes a limitation on the legisla-
tive powers conferred. Any enact-
ment contravening its provisions is
beyond the competency of the pro-
vincial legislature, and, therefore,
null and void. It was so decided
by this Board in Barrett’s case
[previous case]. A doubt was there
suggested whether that appeal was
competent, in consequence of the
provisions of the 2nd sub-section,
but their Lordships were satisﬁed
that the provisions of sub-secs. 2
and 3 did not ‘ operate to withdraw
such a question as that involved in
the case from the jurisdiction of the
ordinary tribunals of the country.’
It is hardly necessary to point out
how improbable it is that it should
have been intended to give a con-
current remedy by appeal to the
Governor-General in Council. The
inconveniences and difﬁculties
likely to arise, if this double remedy
were open, are obvious. If, for
example, the Supreme Court of
B.N.A. ACT, s. 93.-—APP. TO GOVERNOR.
381
Canada, and this Committee on
appeal, declared an enactment of
the Legislature of Manitoba relating
to education to be intra tires, and
the Governor-General in Council,
on an appeal to him, considered it
ultra wires, what would happen?
If the provincial legislature declined
to yield to his view, as would
almost certainly and most naturally
be the case, recourse could only be
had to the Parliament of the Do-
minion. But the Parliament of
Canada is only empowered to legis-
late as far as the circumstances of
the case require ‘for the due
execution of the provisions’ of the
22nd section. If it were to legislate
in such a case as has been supposed,
its legislation would necessarily be
declared ultra ‘Fl-‘7'66’ by the courts
which had decided that the provi~
sions of the section had not been
violated by the legislature of the
province. If, on the other hand,
the Governor-General declared a
provincial law to be int-m vires, it
would be an ineffectual declaration.
It could only be made effectual by
the action of the courts, which
would have for themselves to deter-
mine the question which he decided,
and if they arrived at a different
conclusion, and pronounced the
enactment ultra wires, it would be
none the less null and void because
the Governor-General in Council
had declared it z'ntra tires. These
considerations are of themselves
most cogent to show that the 2nd
sub-section ought not to be con_
strued as giving to parties aggrieved
an appeal to the Governor-General
in Council concurrently with the
right to resort to the courts in case
the provisions of the lst sub-section
are contravened, unless no other
construction of the sub-sections be
reasonably possible. The nature of
the remedy, too, which the 3rd sub-
section provides, for enforcing the
decision of the Governor-General,
strongly conﬁrms this view. That
remedy is either a provincial law or
a law passed by the Parliament of
Canada. \Vhat would be the utility
of passing a law for the purpose
merely of annulling an enactment
which the ordinary tribunals would
without legislation declare to be
null, and to which they would re‘
fuse to give effect P Such legisla-
lation would indeed be futile.
“So far the matter has been
dealt with apart from an examina-
tion of the terms of the 2nd sub-
section itself. The considerations
adverted to would seem to justify
any possible construction of that
sub-section which would avoid the
consequences pointed out. But
when its language is examined, so
far from presenting any difficulties,
it greatly strengthens the conclusion
suggested by the other parts of the
section. The ﬁrst sub-section is
conﬁned to a right or privilege of a
‘class of persons’ with respect to
denominational education ‘ at the
Union,’ the 2nd sub-section ap-
plies to laws affecting a right or
privilege ‘ of the Protestant or
Roman Catholic minority ’ in rela-
tion to education. If the object of
the 2nd sub-section had been that
contended for by the respondent,
the natural and obvious mode of
expressing such intention would
have been to authorize an appeal
from any Act of the provincial
legislature affecting ‘ any such right
or privilege as aforesaid.’ The
limiting words ‘at the Union ’ are,
however, omitted; for the expres-
sion ‘any class of persons ’ there is
substituted ‘the Protestant or
Roman Catholic minority of the
Queen’s subjects ’ ; and, instead of
the words ‘ with respect to de-
nominational schools,’ the wider
term ‘in relation to education’ is
used.
“ The lst sub-section invalidates
a law affecting prejudicially the
right or privilege of ‘ any class ’ of
persons, the 2nd sub-section gives
an appeal only where the right or
privilege affected is that of the
‘ Protestant or Roman Catholic
minority.’ Any class of the
majority is clearly within the pur-
view of the lst sub-section, but it
Bnorn Y 2;.
ATT.-GEN. or
M ANITOBA.
382
B.N.A. ACT, s. 93.—PERILS APPREHENDED.
Bnornv v.
ATT.-GEN. or
MANITOBA.
seems equally clear that no class of
the Protestant or Catholic majority
would have a locus standz' to appeal
under the 2nd sub-section, because
its rights or privileges had been
aﬁected. Moreover, to bring a
case within that sub-section, it
would be essential to show that a
right or privilege had been ‘af-
fected.’ Could this be said to be
the case because a void law had
been passed, which purported to do
something, but was wholly ineffec-
tual? To prohibit a particular
enactment, and render it ultra
'L’iTGS, surely prevents its affecting
any rights.
“ It would do violence to sound
canons of construction if the same
meaning were to be attributed to the
very different language employed
in the two sub-sections.
“ In their Lordships’ opinion, the
2nd sub-section is a substantive
enactment, and is not designed
merely as a means of enforcing the
provision which precedes it. The
question then arises, does the sub-
section extend to rights and privi-
leges acquired by legislation subse-
quent to the Union? It extends
in terms to ‘ any ’ right or privilege
of the minority affected by an Act
passed by the legislature, and would
therefore seem to embrace all rights
and privileges existing at the time
when such Act was passed. Their
Lordships see no justiﬁcation for
putting a limitation on language
thus unlimited. There is nothing
in the surrounding circumstances,
or in the apparent intention of the
legislature, to warrant any such
limitation. Quite the contrary. It
was urged that it would be strange
if an appeal lay to the Governor-
General in Council against an Act
passed by the provincial legislature
because it abrogated rights con-
ferred by previous legislation,
whilst if there had been no previous
legislation, the Acts complained of
would not only have been intra
vires but could not have afforded
ground for any appeal. There is no
doubt force in this argument, but
it admits, their Lordships think, of
an answer.
“Those who were stipulating
for the provisions of sec. 22 as a
condition of the Union, and those
who gave their legislative assent to
the Act by which it was brought
about, had in view the perils then
apprehended. The immediate adop-
tion by the legislature of an edu-
cational system obnoxious either
to Catholics or Protestants would
not be contemplated as possible.
As has been already stated, the
Roman Catholics and Protest-ants
in the province were about equal in
number. It was impossible at that
time for either party to obtain
legislative sanction to a scheme of
education obnoxious to the other.
The establishment of a system of
public education in which both
parties would concur was probably
then in immediate prospect. The
Legislature of Manitoba ﬁrst met
on the 15th of March 1871. On the
3rd of May following the Educa-
tion Act of 1871 received the royal
assent. But the future was uncer-
tain. Either Roman Catholics or
Protestants might become the pre-
ponderating power in the legisla-
ture, and it might under such
conditions be impossible for the
minority to prevent the creation at
the public cost of schools, which,
though acceptable to the majority,
could only be taken advantage of
by the minority on the terms of
sacrificing their cherished convic-
tions. The change to a Roman
Catholic system of public schools
would have been regarded with as
much distaste by the Protestants of
the province as the change to an
unsectarian system was by the
Catholics.
“ Whether this explanation be the
correct one or not, their Lordships
do not think that the difficulty
suggested is a sufficient warrant for
departing from the plain meaning
of the words of the enactment, or
for refusing to adopt the construc-
tion which apart from this objection
would seem to be the right one.
B.N.A. ACT, s. 93.—LIMITED POWERS.
383
“Their Lordships being of opi-
nion that the enactment which
governs the present case is the
22nd section of the Manitoba Act,
it is unnecessary to refer at any
length to the arguments derived
from the provisions of sec. 93 of
the British North America Act.
But in so far as they throw light
on the matter, they do not in their
Lordships’ opinion weaken, but
rather strengthen, the views derived
from a study of the later enactment.
It is admitted that the 3rd and
4th sub-sections of sec. 93 (the
latter of which is, as has been ob-
served, identical with sub-sec. 3
of sec. 22 of the Manitoba Act)
were not ‘intended to have effect
merely when a provincial legisla--
ture had exceeded the limit im-
posed on its powers by sub-sec. 1,
for sub-sec. 3 gives an appeal to
the Governor-General, not only
where a system of separate or dis-
sentient schools existed in a pro-
vince at the time of the Union,
but also where in any province
such a system was ‘ thereafter
established by the legislature of
the province.’ It is manifest that
this relates to a state of things
created by post—Union legislation.
It was said it refers only to acts or
decisions of a ‘ provincial autho-
rity,’ and not to acts of a pro-
vincial legislature. It is unnecessary
to determine this point, but their
Lordships must express their dis-
sent from the argument that the
insertion of the words ‘ of the
legislature of the province’ in the
Manitoba Act show that in the
British North America Act it could
not have been intended to compre-
hend the legislatures under the
words ‘ any provincial authority.’
\Vhether they be so comprehended
or not has no bearing on the point
immediately under discussion.
“ It was argued that the omission
from the 2nd sub-sec. of sec. 22 of
the Manitoba Act of any reference
to a system of separate or dissen-
tient schools ‘ thereafter established
by the legislature of the province ’
was unfavourable to the contention
of the appellants. This argument
met with some favour in the court
below. If the words with which
the 3rd sub-section of sec. 93 com-
mences had been found in sub-
sec. 2 of sec. 22 of the Manitoba
Act, the omission of the following
words would no doubt have been
important. But the reason for the
difference between the sub-sections
is manifest. At the time the Do-
minion Act was passed a system of
denominational schools adapted to
the demands of the minority ex-
isted in some provinces, in others
it might thereafter be established
by legislation, whilst in Manitoba
in 1870 no such system was in
operation, and it could only come
into existence by being ‘ thereafter
established.’ The words which
preface the right of appeal in the
Act creating the Dominion would
therefore have been quite inappro-
priate in the Act by which Mani-
toba became province of the
Dominion. But the terms of the
critical sub-section of that Act are,
as has been shown, quite general,
and not made subject to any con-
dition or limitation.
“Before leaving this part of the
case, it maybe well to notice the
argument urged by the respondent
that the construction which their
Lordships have put upon the 2nd
and 3rd sub-sections of sec. 22 of
the Manitoba Act is inconsistent
with the power conferred upon the
legislature of the province to ‘ex-
clusively make laws in relation to
education.’ The argument is falla-
cious. The power conferred is not
absolute but limited. It is exer-
ciseable only ‘subject and accord-
ing to the following provisions.’
The sub-sections which follow,
therefore, whatever be their true
construction, deﬁne the conditions
under which alone the provincial
legislature may legislate in relation
to education, and indicate the limi-
tations imposed on, and the excep-
tions from, their power of exclusive
legislation. Their right to legis-
BRorIIY v.
ATT.-GEN. or
MANITOBA.
384
B.N.A. ACT, s. 93.—POWER TO BEPEAL.
BROPHY v.
ATT—GEN. OF
MANITOBA.
late is not indeed, properly speak-
ing, exclusive, for in the case
speciﬁed in sub-sec. 3 the Parlia-
ment of Canada is authorized to
legislate on the same subject.
There is therefore no such incon-
sistency as was suggested.
“The learned Chief Justice of
the Supreme Court was much
pressed by the consideration that
there is an inherent right in a
legislature to repeal its own legis-
lative acts, and that ‘ every pre-
sumption must be made in favour
of the constitutional right of a
legislative body to repeal the laws
which it has itself enacted.’ He
returns to this point more than
once in the course of his judgment,
and lays down as a maxim of con-
stitutional construction that an in-
herent right to do so cannot be
deemed to be withheld from a
legislative body having its origin
in a written constitution, unless
the constitution in express words
takes away the right, and he states
it as his opinion that in con-
struing the Manitoba Act the
Court ought to proceed on this
principle, and to hold the legis-
lature of that province to have
absolute powers over its own legis-
lation, untrammelled by any appeal
to federal authority, unless it could
ﬁnd some restriction of its rights
in that respect in express terms
in the Constitutional Act.
“Their Lordships are unable to
concur in the view that there is
any presumption which ought to
inﬂuence the mind one way or the
other. It must be remembered
that the provincial legislature is
not in all respects supreme within
the province. Its legislative power
is strictly limited. It can deal
only with matters declared to be
within its cognizance by the British
North America Act as varied by
the Manitoba Act. In all other
cases legislative authority rests with
the Dominion Parliament. In re-
lation to the subjects speciﬁed in
sec. 92 of the British North
America Act, and not falling with-
in those set forth in sec. 91, the
exclusive power of the provincial
legislature may be said to be
absolute. But this is not so as re-
gards education, which is separate-
ly dealt with and has its own code
both in the British North America
Act and in the Manitoba Act. It
maybe said to be anomalous that
such a restriction as that in ques-
tion should be imposed on the free
action of a legislature, but is it
more anomalous than to grant to a.
minority who are aggrieved by
legislation an appeal from the legis-
lature to the executive authority?
And yet this right is expressly and
beyond all controversy conferred.
If, upon the natural construction
of the language used, it should
appear that an appeal was per-
mitted under circumstances in-
volving a fetter upon the power of
a provincial legislature to repeal
its own enactments, their Lord-
ships see no justiﬁcation for a
leaning against that construction,
nor do they think it makes any
difference whether the fetter is
imposed by express words or by
necessary implication.
“ In truth, however, to deter-
mine that an appeal lies to the
Governor-General in Council in
such a case as the present, does not
involve the proposition that the
provincial legislature was unable
to repeal laws which it had passed.
The validity of the repealing Act
is not now in question, nor that it
was effectual. If the decision be
favourable to the appellants the
consequence, as will be pointed
out presently, will by no means
necessarily be the repeal of the
Acts of 1890 or the reenactment
of the prior legislation.
“Bearing in mind the circum-
stances which existed in 1870, it
does not appear to their Lordships
an extravagant notion that in cre-
ating a legislature for the province
with limited powers it should have
been thought expedient, in case
either Catholics or Protestants be-
came preponderant, and rights
B.N.A. ACT, s. 93.—SUMMARY OF SCHOOL ACTS. 385
which had come into existence
under different circumstances were
interfered with, to give the Do-
minion Parliament power to legis-
late upon matters of education so
far as was necessary to protect the
Protestant or Catholic minority as
the case might be.
“ Taking it then to be established
that the 2nd sub-section of sec. 22
of the Manitoba Act extends to
rights and privileges of the Roman
Catholic minority acquired by legis-
lation in the province after the
Union, the next question is whe-
ther any such right or privilege
has been affected by the Acts of
1890? In order to answer this
question, it will be necessary to
examine somewhat more closely
than has hitherto been done the
system established by the earlier
legislation as well as the change
effected by those Acts.
“ The Manitoba School Act of
1871 provided for a Board of
Education of not less than 10 nor
more than 14 members, of whom
one half were to be Protestants
and the other half Catholics. The
two sections of the Board might
meet at any time separately. Each
section was to choose a chairman,
and to have under its control and
management the discipline of the
schools of the section. One of the
Protestant members was to be ap-
pointed superintendent of the Pro-
testant schools, and one of the
Catholic members superintendent
of the Catholic schools, and these
two were to be the joint sec-
retaries of the Board, which was
to select the books to be used
in the schools, except those having
reference to religion or morals,
which were to be prescribed by the
sections respectively. The legis-
lative grant for common school
education was to be appropriated,
one moiety to support the Protes-
tant, the other moiety the Catholic
schools. Certain districts in which
the population was mainly Catholic
were to be considered Catholic
school districts, and certain other
S 2340.
districts where the population was
mainly Protestant were to be con-
sidered Protestant school districts.
Every year a meeting of the male
inhabitants of each district, sum-
moned by the superintendent of the
section to which the district be-
longed, was to appoint trustees,
and to decide whether their contri-
butions to the support of the school
were to be raised by subscription,
by a collection of a rate per
scholar, or by assessment on the
property of the district. They
might also decide to erect a school
house, and that the cost of it should
be raised by assessment. In case
the father or guardian of a school
child was a Protestant in a Catholic
district, or 'vice @ersc’t', he might
send the child to the school of the
nearest district of the other section,
and in case he contributed to the
school the child attended a sum
equal to what he would have been
bound to pay if he had belonged to
that district, he was exempt from
payment to the school of the dis-
trict in which he lived.
“ Acts amending the education
law in some respects were passed
in subsequent years, but it is not
necessary to refer to them, as in
1881 the Act of 1871 and these
amending Acts were repealed. The
Manitoba School Act, 1881, fol-
lowed the same general lines as
that of 1871. The number of the
Board of Education was ﬁxed at
not more than 21, of whom 12
were to be Protestants and 9
Catholics. If a less number were
appointed the same relative pro-
portion was be observed. The
Board, as before, was to resolve
itself into two sections, Protestant
and Catholic, each of which was to
have the control of the schools of
its section, and all the books to be
used in the schools under its con-
trol were now to be selected by
each section. There were to be,
as before, a Protestant and a Ca-
tholic superintendent. It was pro-
vided that the establishment of a
school district of one denomination
BB
BROPHY v.
ATT.-G'EN. or
MANIToBA.
386
B.N.A. ACT, s. 93.—POLICY OF ACT.
BBOPHY ‘v.
ATT.—GEN. 0F
MANITOBA.
should not prevent the establish-
ment of a school district of the
other denomination in the same
place, and that a Protestant and
Catholic district might include the
same territory in whole or in part.
The sum appropriated by the legis-
lature for common school purposes
was to be divided between the Pro-
testant and Roman Catholic sec-
tions of the Board in proportion to
the number of children between
the ages of ﬁve and ﬁfteen residing
in the various Protestant and
Roman Catholic school districts in
the province where schools were in
operation. With regard to local
assessments for school purposes, it
was provided that the ratepayers
of a school district should pay their
respective assessments to the schools
of their respective denominations,
and in no case was a Protestant
ratepayer to be obliged to pay for
a Catholic school, or a Catholic
ratepayer for a Protestant school.
“ The scheme embodied in this
Act was modiﬁed in some of its
details by later Acts of the legis-
lature, but they did not affect in
substance the main features, to
which attention has been called.
\Vhile traces of the increase of
the Protestant relatively to the
Catholic population may be seen
in the course which legislation
took, the position of the Catholic
and Protestant portions of the
community in relation to educa-
tion was not substantially altered,
though the State aid which at the
outset was divided equally between
them had, of course, to be adjusted
and made proportionate to the
school population which each sup-
plied.
“ Their Lordships pass now to the
Department of Education and Pub—
lic Schools Acts of 1890, which
certainly wrought a great change.
Under the former of these Roman
Catholics were not entitled as such
to any representation on the Board
of Education or on the Advisory
Board, which was to authorize text
books for the use of pupils and to
prescribe the forms of religious
exercises to be used in schools.
All Protestant and Catholic school
districts were to be subject to the
provisions of the Public Schools
Act. The public schools were all
to be free, and to be entirely non-
sectarian. No religious exercises
were to be allowed unless con-
ducted according to the regulations
of the Advisory Board, and with
the authority of the school trustees
for the district. It was made the
duty of the trustees to take pos-
session of all public school pro-
perty which had been acquired or
given for public school purposes in
the district. The municipal coun-
cil of every city, town, and village
was directed to levy and collect
upon the taxable property within
the municipality such sums as
might be required by the public
school trustees for school purposes.
No municipal council was to have
the right to exempt any property
whatever from school taxation.
And it was expressly enacted that
any school not conducted according
to all the provisions of the Act, or
the regulations of the Department
of Education, or the Advisory
Board, should not be deemed a
public school within the meaning
of the law, and that such school
should not participate in the legis-
lative grant.
“\Vith the policy of these Acts
their Lordships are not concerned,
nor with the reasons which led to
their enactment. It may be that
as the population of the province
became in proportion more largely
Protestant it was found increas—
ingly ditﬁcult, especially in sparsely
populated districts, to work the
system inaugurated in 1871, even
with the modiﬁcations introduced
in later years. But whether this
be so or not is immaterial. The
sole question to be determined is
whether a right or privilege which
the Roman Catholic minority pre-
viously enjoyed has been aﬁected
by the legislation of 1890. Their
Lordships are unable to see how
B.N.A. ACT, s. 93.—NEW POSITION OF cATIIoLIcs. 887
this question can receive any but
an afﬁrmative answer. Contrast
the position of the Roman Ca-
tholics prior and subsequent to
the Acts from which they appeal.
Before these passed into law there
existed denominational schools, of
which the control and management
were in the hands of Roman Ca-
tholics, who could select the books
to be used and determine the cha_
racter of the religious teaching.
These schools received their pro-
portionate share of the money con-
tributed for school purposes out of
the general taxation of the pro-
vince, and the money raised for
these purposes by local assessment
was, so far as it fell upon Ca-
tholics, applied only towards the
support of Catholic schools. What
is the position of the Roman Ca-
tholic minority under the Acts of
1890? Schools of their own de-
nomination, conducted according.
to their views, will receive no aid
from the State. They must de-
pend entirely for their support
upon the contributions of the
Roman Catholic community, while
the taxes out of which State aid is
granted to the schools provided for
by the statute fall alike on Ca-
tholics and Protestants. More-
over, while the Catholic inhabitants
remain liable to local assessment
for school purposes, the proceeds
of that assessment are no longer
destined to any extent for the sup-
port of Catholic schools, but afford
the means of maintaining schools
which they regard as no more suit-
able for the education of Catholic
children than if they were distinc-
tively Protestant in their character.
“In view of this comparison it
does not seem possible to say that
the rights and privileges of the
Roman Catholic minority in rela-
tion to education which existed
prior to 1890 have not been
affected.
“Mr. Justice Taschereau says
[22 S. C. Bu, p. 577] that the
legislation of 1890 having been
irrevocably held to be int'ra wires
cannot have ‘illegally ’ affected any
of the rights or privileges of the
Catholic minority. But the word
‘illegally ’ has no place in the sub-
section in question. The appeal
is given if the rights are in fact
affected.
“It is true that the religious
exercises prescribed for public
schools are not to be distinctively
Protestant, for they are to be
‘non-sectarian,’ and any parent
may withdraw his child from them.
There may be many, too, who
share the view expressed in one of
the affidavits in Barrett’s case, that
there should not be any conscien-
tious objections on the part of
Roman Catholics to attend such
schools, if adequate means be pro-
vided elsewhere of giving such
moral and religious training as
may be desired. But all this is
not to the purpose. As a matter
of fact, the objection of Roman
Catholics to schools such as alone
receive State aid under the Act of
1890 is conscientious and deeply
rooted. If this had not been so, if
there had been a system of public
education acceptable to Catholics
and Protestants alike, the elaborate
enactments which have been the
subject of so much controversy and
consideration would have been un-
necessary. It is notorious that
there were acute diﬁerences of opi-
nion between Catholics and Pro-
testants on the education question
prior to 1870. This is recognised
and emphasized in almost every
line of those enactments. There
is no doubt either what the points
of difference were, and it is in the
light of these that the 22nd section
of the Manitoba Act of 1870, which
was in truth a parliamentary com—
pact, must be read.
“F or the reasons which have
been given their Lordships are of
opinion that the 2nd sub-section of
sec. 22 of the Manitoba Act is the
governing enactment, and that the
appeal to the Governor-General in
Council was admissible by virtue
of that enactment, on the grounds
BROPHY 'v.
ATT.-GEN. or
MANIToBA.
BB2
388 B.N.A. AcT, s. 93.-JURISDICTION or? Gov-GEN.
BRorIIv e.
ATT.-GEN. or
MANIToBA.
Legislation for
uniformity of
laws in three
provinces.
set forth in the memorials and
petitions, inasmuch as the Acts of
1890 affected rights or privileges of
the Roman Catholic minority in
relation to education within the
meaning of that sub-section. The
further question is submitted whe-
ther the Governor - General in
Council has power to make the
declarations or remedial orders
asked for in the memorials or peti-
tions, or has any other jurisdiction
in the premises. Their Lordships
have decided that the Governor-
General in Council has jurisdiction,
and that the appeal is well founded,
but the particular course to be
pursued must be determined by
the authorities to whom it has been
committed by the statute. It is
not for this tribunal to intimate
the precise steps to be taken. Their
general character is suﬁiciently de-
ﬁned by the 3rd sub-section of sec.
22 of the Manitoba Act.
“ It is certainly not essential
that the statutes repealed by the
Act of 1890 should be re-enacted,
or that the precise provisions of
these statutes should again be made
law. The system of education
embodied in the Acts of 1890 no
doubt commends itself to, and ade-
quately supplies the wants of, the
great majority of the inhabitants
of the province. All legitimate
ground of complaint would be re-
moved if that system were supple-
mented by provisions which would
remove the grievance upon which
the appeal is founded, and were
modiﬁed so far as might be neces-
sary to give effect to these pro-
visions.
“ Their Lordships will humbly
advise Her Majesty that the ques-
tions submitted should be answered
in the manner indicated by the
views which they have expressed.”
No costs of the appeal.
Uniformity of Laws in Ontario, Nova Scotia, and
New Brunswick.
94, Notwithstanding anything in this Act, the Par-
liament of Canada may make provision for the uni-
formity of all or any of the laws relative to property
and civil rights in Ontario, N ova Scotia, and New
Brunswick, and of the procedure of all or any of the
courts in those three provinces, and from and after the
passing of any Act in that behalf the power of the Par-
liament of Canada to make laws in relation to any
matter comprised in any such Act shall, notwithstand-
ing anything in this Act, be unrestricted; but any Act
of the Parliament of Canada making provision for such
uniformity shall not have effect in any province unless
and until it is adopted and enacted as law by the legis-
lature thereof.1
1 The province of Quebec is
omitted from this section, for the
obvious reason that the law which
governs the “property and civil
rights” in Quebec is in the main
the French law as it existed at the
time of the cession of Canada,
and not the English law which
B.N.A. ACT, s. 95.—CON CURRENT LEGISLATION. 389
prevails in the other provinces.
And the words, “property and
civil rights,” are used in the same
sense as in sub-sec. 13, sec. 92,
and there seems no reason for pre-
suming that contracts and the
rights arising from them were not
intended to be included in this pro-
vision for uniformity.
See Citizens’ Insurance Co. v.
Parsons, 4 S. C. R. 215; in P. C.
Nov. 26, 1881, 7 App. Cas. p. 110;
51 L. J. P. C. 11; 45 L. T. 721.
[See Note, sub-sec. 13, sec. 92.]
It therefore seems to. have been
considered that the Dominion had
no power to legislate under this
section in regard to contracts sub-
ject to the Quebec law so as to
alter that law.
See Notes, “ Divorce ” and “ So-
lemnization of Marriage,” sub-sec.
25, sec. 91 ; sub-sec. 12, sec. 92.
Agriculture and Immigration.
95. In each province the legislature may make laws
in relation to agriculture in the province, and to immi-
gration into the province; and it is hereby declared &
Concurrent
powers of legis-
lation respect-
ing agriculture,
0.
that the Parliament of Canada may from time to time '
make laws in relation to agriculture in all or any of the
provinces, and to immigration into all or any of the
provinces ; and any law of the legislature of a province
relative to agriculture or to immigration shall have
eifect in and for the province as long and as far only
as it is not repugnant to any Act of the Parliament of
Canada.1
1Burton, J .A., said, in LOCAL
OPTION AcT CASE, Sept. 23, 1891,
18 O. A. B’. p. 590: “The two
cases mentioned in sec. 95 are
agriculture and immigration where
the powers are concurrent, and
here, of course, provision had to
be made for one or other giving
Way in the event of their clashing,
and so it is especially provided
that the local legislation in these
two cases shall be valid only so far
as it does not conﬂict with that of
the Parliament of Canada.” And he
goes on to say this is the only sec-
tion where such provision is made.
[See Note, sub-sec. 9, sec. 92.]
Aliens have no legal right to be
allowed to land in the colonies.
[See Notes, p. 63, and sub-sec. 14,
sec. 92.]
VIL—JUDIOATURE.
96, The Governor-General shall appoint the judges
of the superior, district, and county courts in each
province, except those of the courts of probate in Nova
Scotia and New Brimswiclc.1
1See American
art. 3. s. 1.
Read with this section the sec-
tions 97, 98, 99, and 100.
s_2s4o.
The Minister of Justice, John
Macdonald, concurred in a report
made by his deputy, 14 June 1879,
that it was beyond the powers of
+-
Constitution,
LOCAL OPTION
Ac'r CASE.
Appointment-
of judges.
390
B.N.A. ACT, s. 96.—DUTY OF JUDGES. .
REG. '0. BURAII.
REG. v.
BENNETT.
the local legislature to allow to the
judges of the county court fees for
performing their duties as such
judges while they at the same time
received a ﬁxed salary from the
Dominion Government for the per-
formance of those duties. Refer-
ence was made to an Act of Ontario
in 1869, 32 Vict. c. 22., whereby
the sum of $1,000 each year was
allowed to the judges of the superior
courts, payable out of the moneys
of the province. The opinion of
the law officers of the Crown in
England was taken, and they were
of opinion that the Act was incom-
petent. The then Minister of Justice
expressed his own opinion that the
judges of the superior courts could
not properly, and without a breach
of the provisions of the B. N. A.
Act, receive emolument for per-
forming the judicial duties from
any power but the power which
appoints and pays them the legal
salary attached to the olﬁce. Prov.
Leg, 1886.
ON THE DUTY or J opens.—
Lord Selborne, in REG. 1). BURAH,
June 5, 1878, Wheeler’s P. C. Law
55; 3 App. Cas. p. 904, said: “ The
established courts of justice, when
a question arises whether the pre-
scribed‘ limits ” [of the provincial
legislature] "‘ have been exceeded,
must of necessity determine that
question; and the only way in
which they can properly do so
is by looking to the terms of the
instrument by which, aﬁirmatively,
the legislative powers were created,
and by which, negatively, they are
restricted. If what has been done
is legislation within the general
scope of the aﬁirmative words which
give the power, and if it violates no
express condition or restriction by
which that power is limited (in
which category would, of course, be
included any Act of the Imperial
Parliament at variance with it), it
is not for any court of justice to
inquire further, or to enlarge con-
structively those conditions and re-
strictions.”
In MAREURY v. MADISON, Feb‘
1803, 5 S. C. R. (U. S.) (1 Cranch),
p. 17 7, it was said, per Curiam : “ It
is emphatically the province and
duty of the judicial department to
say what the law is [see case given,
sec. 41]. Those who apply the rule
to particular cases, must of necessity
expound and interpret that rule. If
two laws conﬂict. with each other,
the courts must decide on the
operation of each. So if a law be
in opposition to the Constitution ; if
both the law and the Constitution
apply to a particular case, so that
the court must either decide that
case conformably to the law, disre-
garding the Constitution, or con-
formahly to the Constitution, dis-
regarding the law; the court must
determine which of those conﬂicting
rules governs the case. This is the
very essence of judicial duty. If,
then, the courts are to regard the
Constitution, and the Constitution
is superior to any ordinary Act of
the legislature, the Constitution and
not suchordinary Act must govern
the case to which they both apply.”
And again, “ The judicial power of
the United States is extended to all
cases arising under the Constitution.
Could it be the intention of those
who gave this power, to say that in
using it the Constitution should not
be looked into? That a case aris-
ing under the Constitution should
be decided without examining the
instrument under which it arises? ”
In REG. 1). BENNETT, 20 Oct.
1882, 1 O. R. p. 462, Cameron, J.,
held that the legislature of the
province of Ontario had power to
(It. S. O. c. 71) provide for the
qualiﬁcation and appointment of
justices of the peace. That learned
judge said: “ Justices of the peace
are part of the system of the ad
ministration of justice in the pro
vince, and therefore under sub-sec.
14, sec. 92, of the B. N. A. Act,
the right to legislate as to their
appointment is expressly conferred
upon the legislature of the pro-
B.N.A. ACT, s. 96.—CONST.
OF LOWER COURTS. 391
vince.” “ This view is supported by
the provision contained in sec. 96,
giving the appointment of judges
of the superior, district, and county
courts to the Governor-General,
and no provision being made for
the appointment of any subordinate
oﬁicer or authority in connection
with the administration, indicating
the intention of the Imperial Par-
liament, under the assignment of
the power to make laws relating to
the administration of justice to the
local legislature, was to give such
legislature full power to legislate as
to the appointment of- all officers
connected with the administration,
except the judges, in respect to
whose appointment the appointing
power was expressly indicater .”
In WILsoN v. MCGUIRE, Feb. 3,
1883, 2 O. R. 118, the question
arose, Could the Ontario Legisla-
ture authorize a county court judge
to act in any county other than
that he was appointed for. It was
held it could. The Local Courts Act,
R. S. O. 1877, c. 42. s. 16, allowed
any part of Ontario to be divided
into districts or groups of counties
by proclamation of the Lieutenant-
Governor. Sec. 17. After the
creation of a district, the several
county courts, courts of general
session, division courts, &c., and all
other courts which a county court
may hold in each county, shall be
held by the judges in the district
in rotation. Sec. 18. The judges
shall meet and arrange which of
the said courts in a district shall be
held by each judge throughout the
year. The judges so arranged, and
the county court judge of Lambton
under such arrangement held a
Middlesex Division Court, and made
an order which gave rise to the case,
it being alleged it was ultra wires in
that the judge acted out of Lamb-
ton. Held by Hagarty, C J ., and
Cameron, J. (Armour, J ., dissent-
ing), that, as the local legislature
had power to abolish such courts
and to establish others for the dis-
posal of the like or other classes of
business, it had the right to appoint
ofﬁcers to preside over them, and
the order was not ultra wires.
Hagarty, C.J., said: “The Legis-
lature of Ontario has complete
power over the division courts as
to their existence, constitution, re-
arrangement, &c. In the case of
the superior and county courts, the
general Government interpose in
the power of appointing the judges.
The county judges appointed by
the Crown have presided over these
division courts from their estab-
lishment. The provincial legisla-
ture, since its establishment, has
made many changes in those courts,
enlarging their jurisdiction and
makingprovisionsforenforcingtheir
process over property and persons
outside their ordinary boundaries,
but have never interfered with the
principle of having them presided
over by a county court judge, and
even before confederation (C. S.
U. C. c. 19. ss. 16, 17) the judge
of another county court could act
in the case of illness or unavoidable
absence.” “I do not feel that in
the case before us any diﬁiculty is
created by the fact of the judge of
Lambton being an oﬁ’icer appointed
by the Dominion expressly for that
county. It was urged he could
not perform judicial duties beyond
its limits. It is sufﬁcient here to
say that he has in fact performed
them under the authority of the
provincial legislature, and that the
latter, having complete power over
the division courts, have designated
him, amongst other named function-
aries, to preside in the court.”
In GANoNe '0. BAYLEY, May
1877, 17 S. C. N. B. (l Pugs. and
B.) 325, it was held by Weldon,
Fisher, and Wetmore, J J . (Allen,
C.J., and Duff, J ., dissenting‘), that
see. 1 of the New Brunswick Act,
39 Vict. c. 8., establishing parish
courts, which authorized the Lieu-
tenant-Governor to appoint a com-
missioner to try causes in the court.
established, was not ultra wires.
Weldon, J ., said : “ At the
WILSON v.
MCGUIRE.
GANONG v.
BAYLBY.
392
B.N.A, ACT, s. ‘dd—LOCAL EXECUTIVE.
GANONG v.
BAYLEY.
time of passing of the Confedera-
tion Act there were superior courts
in all the provinces which were
embraced in the confederacy.
There were district courts in
Canada. In Lower Canada there
were the districts of Gaspe, of
Saguenay, and of Chicoutimi; there
were county courts existing in
Upper Canada, and consequently
were established in New Brunswick,
Nova Scotia, and Prince Edward
Island. It appears to me that these
were the courts that the Governor-
General was to appoint the judges
to, when established, or as vacan-
cies may occur, and to provide for
them salaries, allowances, and pen-
sions. There were also, at the
passing of the Confederation Act,
Commissioners’ Courts for the sum-
mary trial of small cases, in what
is now the province of Quebec, and
there were Division Courts in On-
tario. No reference is made to
them in the said Act. The several
acts establishing these small courts
in the several provinces, prior to
confederation, also provided for the
appointment of officers thereof, by
the several local executives, and
were not referred to or expressly
provided for in the said Act. I am
therefore of opinion the local legis-
lature in passing the Acts for the
recovery of small debts in the re-
spective parishes of the county, and
providing for the appointment of
persons to carry out the provisions
thereof by the local executive, was
within its powers, and in such case
the executive authority continued
as it existed at the Union, unless
the same was altered by the pro-
visions of the Union, which is not
expressly done. There were many
oﬂicers which the Governor—General
had the appointment of vested in
him as the Queen’s representative
to make in the provinces, but that
power may be limited by the pass-
ing of Acts by the local legislatures,
assented to by the Governor-Gene—
ral, and any Act creating an oﬂice,
and vesting the appointment in the
Governor and Executive Council,
would be valid, if not disallowed
by the Governor-General.” This
principle has been recognised by
the Colonial Secretary in 1872, and
carried out in various Acts. “And
the power of appointment which
was in the Crown, to be exercised
by the representative of the Queen,
has been transferred to the Lieu-
tenant-Governor. See 31 Vict.
c. 30. for appointment of members
of the legisiative council; 32 Vict.
0. 9'2. for appointment of justices
of the peace; 32 Vict. c. 93. re-
lating to marriage licenses; 36 Vict.
c. 3. respecting appointment of
Notaries Public; 36 Vict. c. 21. re-
specting the appointment of Queen’s
Counsel; 32 Vict. c. 6. relating to
the presentation of Rectors of the
Church of England in the province;
34 Vict. c. l. appointment of police
magistrate in and for the city of
Fredericton, and giving him. juris-
diction in civil suits to the extent of
$40. Some of these Acts are spe-
cially approved of by the Governor-
G'reneral, others left to their opera-
tion. As the Act establishing parish
courts has not been disallowed by
the Governor-General as directed
under the 90th section of the Union
Act, I am of opinion it was within
the power of the legislature to pass
the Act.”
Fisher, J., said: Sub-section 14
“ of section 92 of the B. N .A. Act
confers upon the local legislatures
the power of providing for the con-
stitution, maintenance, and organi-
zation of provincial courts, so that
the authority to legislate upon the
subject is clear. Having so legis-
lated, had the local legislature power
to give the appointment of the
persons who are to try the causes
or administer justice in the courts
to the Lieutenant-Governor, or
must such appointments vest in the
Governor-General ? This depends
upon the meaning of sections 96,
97, 98, 99, and 100 of the B. N. A.
Act, and construing all these sec-
tions together- —and in that way they
explain themselves. It is obvious
that it was the intention of the Act
B.N.A. ACT, s. 97.
393
HIGHER CLASS JUDGES.

to vest in the Governor-General
only the appointment of the judges
of the county courts, and those of
a more extensive or Canadian juris-
prudence. At the time of the
Union, there were in existence
courts and judges of courts, answer-
ing the description given in these
sections, having both civil and
criminal jurisdiction. It being re-
quired that they should be appointed
from the bar, showing that they
must have received a professional
education, evidences the mind of
the legislature as referring only to
judges of the higher class. Then
the charging the revenues of
Canada with their salaries and pen-
sions of itself shows that the sec-
tions all refer to a higher class.
When the B. N. A. Act came into
operation, there were in Nova
Scotia and New Brunswick courts
for the trial of small causes in the
diﬁerent localities, similar to those
authorized by the Act of 39 Vict.
c. 5., presided over by justices of
the peace, the class of persons who
are now appointed; and the only
difference is, that instead of every
justice of the peace having power
to try, it is now restricted to such
of the justices as the Lieutenant-
Governor shall specially appoint
therefor, and they have jurisdiction
to a larger amount. In Nova
Scotia the Act that gave one justice
power to try causes not exceeding
$20, authorized any two justices to
try to the amount of $80. All
these Acts are very similar in their
provisions as to the mode of juris-
diction, and persons appointed to
preside in the court they establish.
The justices of the peace who are
the judges of these courts—styled
commissioners—may be farmers,
merchants, mechanics, or any other
class, and it does seem to me to be
very preposterous to suppose that
they come within the category of
judges speciﬁed in the different
sections of the B. N. A. Act to
which I have referred.”
97. Until the laws relative to property and civil
rights in Ontario, Nova Scotia, and New Brunswick,
and the procedure of the courts in those provinces, are
made uniform, the judges of the courts of those pro-
vinces appointed by the Governor - General shall be
selected from the respective bars of those provinces.1
1 The Manitoba Legislature at-
tempted to pass an Act to consti-
tute and incorporate the Law
Society of Manitoba. The Lieu-
tenant-Governor, 14 April 1872,
reported the Bill seemed premature,
because if the provisions of the
Union Act, which conﬁnes the se-
lection of judges in any province to
the bar of that province, should be,
as he thought they were, applicable
to Manitoba, it would not be de-
sirable to force the admission here
or to restrict the Government at
Ottawa in their selection of judges
to such persons as the existing
98. The judges of the
members of the Manitoba bar
might think ﬁt to admit. Another
objection was the power given under
the Bill to the bar to regulate their
own fees.
In an Act to establish a supreme
court in the province of Mani~
toba, sec. 5 provided that no chief
justice or puisne judge of the
Supreme Court should be appointed
unless such person is able to speak
both the French and English lan-
guages. The Minister of Justice,
14 April 187 3, considered this Bill
ultra vires.
courts of Quebec shall be
selected from the bar of that province.
Glmo'ne v.
BAYLEY.
Selection of
judges in On-
tario, &c.
Selection of
judges in
Quebec.
394
B.N.A. ACT, s. 101.—THE SUPREME COURT.
Tenure of of‘ﬁce
of judges of
superior courts.
Salaries, &c. of
judges.
General Court
of Appeal, &c.
99, The judges of the superior courts shall hold
office during good behaviour, but shall be removable
by the Governor-General on address of the Senate and
House of Commons.1
1 An Act of the Manitoba Legis-
lature for the registration of voters
(c. 6.) provided, sees. 21, 22, that
any judge refusing or neglecting
to perform any duty imposed upon
him by the Act shall be liable to a
ﬁne. 14 April 1873, the Minister
of Justice (Macdonald) reported
that the 99th section of the B. N. A.
Act provided fully for the manner
in which the judges could be called
to account, and their position should
not be otherwise affected by such
legislation as that in question.
100. The salaries, allowances, and pensions of the
judges of the superior, district, and county courts (ex-
cept the courts of probate in Nova Scotia and New
Brunswick), and of the Admiralty courts in cases where
the judges thereof are for the time being paid by
salary, shall be ﬁxed and provided by the Parliament
of Canada.1
1 The provinces cannot give any allowance to the judges.
101. The Parliament of Canada may, notwithstand-
ing anything in this Act, from time to time provide for
the constitution, maintenance, and organization of a
general Court of Appeal for Canada, and for the estab-
lishment of any additional courts for the better ad-
ministration of the laws of Canada.1
1 Before the institution of the
Supreme Court, the Dominion Con-
troverted Elections Act, 1874 [Can.
Act, 37 Vict. c. 10.], conferred the
trial of election petitions on the
judges. It was held not ultra
wires. See Valin v. Langlois,
ante, p. 18 (from ‘Supreme Ct.
Dom.) ; Théberge 'v. Landry, ante,
p. 45 (from the Superior Court,
province of Quebec); and Kennedy
v. Purcell, 7 July 1888 [see ante,
p. 314], an appeal from the Su-
preme Court of the Dominion.
The Supreme Court of Canada,
the highest court in the Dominion,
was established in 1875 by the Do-
minion Act 38 Vict. c. 11. [amen-
ded since by It. S. C., 1886, c.
135.; and 54 & 55 Vict. c. 25.
See below, pp. 405-6.] It has an
appellate civil and criminal juris-
diction. In controverted election
petitions it has an appellate uris-
diction. Also questions between
the Dominion and the provinces,
or between two or more provinces,
on condition the legislature pass an
Act to that effect, may be enter-
tained by it.
In the Dominion Liquor License
Act, 1884, there was a special sec-
tion (26) to the effect that the Go-
vernor-General in Council might
refer any question to the Supreme
_ Court for its opinion, and The D05
B.N.A. ACT, s. 101.-—APPEAL BY REFERENCE.
395
minion v.The Four Provinces, In re
The Liquor Licenses Acts, 1883-4,
was heard under this section in
1885 ; but the court gave no formal
opinion, which has been considered
a great want in determining what
line of thought was passing through
their Lordships’ minds. Now
54 825 55 Vict. (Dom.) c. 25. s. 4
provides for that, altering sec. 37 of
R. S. C., 1886, c. 135, and 38 Vict.
c. 11. s. 52, and Ontario has
a like law, 53 Vict. c. 13. [see
below, pp. 405—6, 401-2], enact-
ing in effect that any matter with
reference to which the Governor or
Lieutenant-Governor in Council,
respectively, see ﬁt may be referred
to the Supreme Court (Ontario
Courts), for hearing. It is provided
the judges are to give their reasons,
and that although the opinions of
the court are advisory only, for all
purposes of appeal to Her Majesty
in Council these are to be treated
as a ﬁnal judgment of the said
courts between the parties. Leave
to appeal has always been asked
from the Judicial Committee in
England on appeal in these refer-
ences, as in all other appeals from
the Supreme Court of Canada.
Thus the last Manitoba school
case was heard [see sec. 93], and
The Att.-Gen. of Ontario 1). The
Att.-Gen. of the Dominion and
Brewers and Distillers in 1895 [see
Appendix C].
By R. S. C., l886,c. 135. s. 38,
either House of Parliament may
refer to the court any private Bill
for its report thereon.
The Supreme Court of Canada
holds its sittings three times a year
at Ottawa, in February, May, and
October. It is presided over by a
Chief Justice and ﬁve puisne judges,
two of whom must have been
members of the Quebec bar, and
all of whom must reside within ﬁve
miles of the city of Ottawa.
By sec. 26, R. S. C. c. 135.,it is
provided an appeal shall lie direct
to the Supreme Court from the
judgment of the court of original
jurisdiction by consent of parties.
Where two persons claimed a Privy Council
sum of money in an appeal to the P
Supreme Court, and it appearing
that one really represented the Go-
vernment of Nova Scotia, a special
agreement was made whereby that
Government were to come in and
be a party to the cause, and be
bound by it. The agreement ﬁnally
said : “The order to be made pur-
suant to this agreement shall be
considered a ﬁnal disposition of all
contentions, whether now in litiga-
tion or not,” arising under the
articles which are the subject of
dispute. The Privy Council re-
fused to give special leave to ap-
peal, such reference to the S. C.
being in the nature of an arbitra_
tion, and that the S. C. was not
acting in its ordinary jurisdiction
as a court of appeal. Att.-Gen. of
Nova Scotia 1). Gregory, Cassels’
S. C. D. 727; in P. C. April 3,
1886, 11 App. Cas. 229; 55 L. J.
P. C. 40; 55 L. T. 270.
The Exchequer Court is presided
over by a single judge, and can sit
anywhere in Canada. It is also a
Colonial Court of Admiralty [54
80 55 Vict. (Dom.) c. 29.], hav-
ing such jurisdiction throughout
Canada and its waters, whether
tidal or non-tidal, or naturally
navigable or artiﬁcially made so,
and all persons shall have all rights
and remedies in all matters con-
nected with navigation, shipping,
trade, or commerce, as may be had
or enforced in any Colonial Court
of Admiralty under the Imperial
Colonial Court of Admiralty Act,
1890, 53 & 54 Vict. c. 27. [see post,
Appendix A]. Local Courts of Ad-
miralty have been established in
accordance with the Dominion Act
in Quebec, Nova Scotia, New
Brunswick, British Columbia,
Prince Edward Island, and To-
ronto district, the limits of which
are elastic and may be altered by
the Governor in Council.
By Crim. Pro. Act [see R. S.
of C. c. 174.] provision is made for
the reservation of Crown cases.
It is important to state that
ractice.
396 B.N.A. ACT, s. 1()1.-—PROVINCIAL COURTS.
Direct Right of All the provinces can appeal to
Appeal.
the Privy Council without going
through the S. C. of C.—-For appeal
from Ontario, see below; from
Quebec, below; from Nova Scotia,
Index to Lon. Gaz., “paper printed
by P. C. 20 March 1863 ”; from
New Brunswick, Order in Council,
Lon. Gaz., 7 Dec. 1852, p. 3575;
Manitoba, Order in Council, Off.
Can. Gaz., April 30, 1892, p. 2044;
North-West Territories, Order in
Council, ibz'cl, March 5, 1892,
p. 1646; and Prince Edward Is-
land, by Royal Instructions, 13 Dec.
1838; see In re Monckton, 22 June
1837. 1 M00. P. C. 455; In re
Cambridge, 11 Feb. 1841, 3 M00.
P. C. 175, and Kelly '0. Sulivan.
From Newfoundland, by Charter
of Justice; see 31 Geo. 3. (1791)
c. 29., ante, p. 6.
The Supreme Court of Ontario
consists of Supreme Court of J udi-
cature, two divisions, called High
Court of Justice for Ontario, and
Court of Appeal for Ontario. The
ﬁrst division is composed of Q. B.,
C. P., and Chancery. Q. B.
and C. P. have each a C. J. and
two judges. The Chancery Court
is presided over by a Chancellor and
three judges. The judges of On-
tario, as well as those of Quebec,
Nova Scotia, and New Brunswick,
are selected from the bar of their
own province.
Special questions are also re-
ferred to the Court of Appeal, On-
tario, under 53 Vict. (Ont) c. 13.;
see Att.-Gen. of Ontario 2). Att.-
-Gen. of Dominion, in re assign-
ments and preferences, 9 May
1893, 20 O. A. R. 489; in P. C.
Feb. 24, [1894] 5 A. C. 189;
63 L. J. P. C. 59; 70 L. T. 538.
And In re the Local Option Act,
1891, 18 0. A. R. 573, ante,
p. 205.
The right of appeal straight to P.
C. from Ontario is ;-In a case where
the matter in controversy exceeds the
sum or value of $4,000, as well as in
a case where the matter in question
relates to the taking of any annual
or other rent, customary, or other
duty or fee, or any like demand of
a general and public nature affect—
ing future rights, of what value
and amount soever the same may
be, an appeal shall lie to Her Ma-
jesty in her Privy Council; and
except as aforesaid no appeal shall
lie to Her Majesty in her Privy
Council: R. S. O., 1887, c. 41. s. 1.
The highest court of Quebec is
the Q. B., with a C. J. and ﬁve
puisne judges. The court below
the Q. B. is the Superior Court,
with a C. J. and 29 puisne judges.
It may be noticed that in Quebec
it has been held by the Judicial
Committee that an advocate may
sue for his fees. Reg. '0. Doutre,
July 12, 1884, 9 App. Cas. 745;
53 L. J. P. C. 85; 51 L. T. 669.
In Nova Scotia, the Chief J us-
tice of the Supreme Court, the judge
in Equity, and ﬁve puisne judges.
New Brunswick, the Chief Jus-
tice of the Supreme Court, the
judge in Equity, and four puisne
judges.
In Manitoba, the Chief Justice
and three puisne judges.
In British Columbia, the Chief
Justice and four puisne judges.
In Prince Edward Island, the
Chief Justice and two assistant
judges.
In the North-West Territories
there are ﬁve puisne judges of the
S. C.
It may be important to glance at
the history of the jurisdiction of
the various courts, and how and by
what Acts they were created. It
will be only a glance, and rather
with the view of putting the
searcher on the track than to give
every item of knowledge in respect
of the constitution of these courts.
Previous to the division of the
province of, Quebec into two pro-
vinces, Upper and Lower, by an
ordinance 27 Feb. 1787, 27 Geo. 3.
c. 1., it was stated that His Ma-
jesty has been pleased to signify
his pleasure that appeals be admit-
ted to himself in his Privy Council,
in all cases of ﬁnes imposed for
misdemeanours, provided the ﬁnes
B.N.A. ACT, s. lOl.——APPEALS AND VALUE.
397
so imposed amount to or exceed the
sum of £100, the appellant ﬁrst
giving good security that he will
effectually prosecute the appeal.
31 Geo. 3. (Imperial), 1791,
c. 31., considered the constitutional
charter of the Canadas. This Act
divided the province of Quebec into
two provinces, Upper and Lower
Canada. Sec. 2 provided that in
each province there should be a
Legislative Council and Assembly,
and that all laws passed by the
legislatures of the provinces respec-
tively, and assented to by His
Majesty, should be “valid and
binding within the province in
which the same shall have been so
passed.” Sec. 34 provided the
Governor or person administering
the government of each of the
said provinces respectively, to-
gether with such executive council
as shall be appointed by His
Majesty, shall be a court of civil
jurisdiction within each of the said
provinces for hearing and deter-
mining appeals within the same,
subject to further pro-
visions as may be made by any
Act of the Legislative Council and
Assembly of either of the said
provinces, assented to by His
Majesty, &c.
The Legislative Council and As-
sembly of Lower Canada passed
the 34 Geo. 3., 1793, c. 6., an Act
for the division of the province of
Lower Canada, for amending the
judicature thereof, and for repeal-
ing certain laws therein men-
tioned.
Sec. 30 limited appeals to His
Majesty in Council from the judg-
ment of the provincial courts of
appeal to certain cases. [See
below, C. of C. B]
“And be it further enacted by
the authority aforesaid, that the
judgment of the said Court of Ap-
peals of this province shall be
ﬁnal in all cases where the matter
in dispute shall not exceed the sum
or value of £500 sterling; but in
cases exceeding that sum or value,
as well as in all cases where the
matter in question shall relate to lappleal from
“.6
any fee of office, duty, rent, revenue,
or any sum or sums payable to His
Majesty, titles to lands or tene-
ments, annual rents, or such like
matters or things where the rights
in future may be bound, an appeal
shall lie to His Majesty in His
Privy Council, though the imme-
diate sum or value appealed for be
less than £500 sterling, provided
security be ﬁrst duly given by the
appellant that be will effectually
prosecute his appeal and answer
the condemnation, and also pay
such costs and damages as shall be
awarded by His Majesty in His
Privy Council, in case the judg-
ment of the said Court of Appeals
of this province be affirmed,” &c.
The section then provides that
in case of reversal the respondent
shall not be called upon to return
more than the net proceeds of the
execution, &c.
Sec. 43. “Provided always, and
it is declared and enacted by the
authority aforesaid, that nothing
herein contained shall be construed
in any manner to derogate from
the rights of the Crown to erect,
constitute, and appoint courts of
civil or criminal jurisdiction within
this province, and to appoint, from
time to time, the judges and ofﬁcers
thereof, as His Majesty, his heirs
and successors, shall think neces-
sary or proper for the circumstances
of this province, or to derogate
from any other right or preroga-
tive of the Crown whatsoever.”
[See below, Cuvillier 'v. Aylwin,
Nov. 24, 1832, 2 Knapp, 72.]
The Code of Civil Procedure,
article 1 l 78, provided :—An appeal
lies to Her Majesty in her Privy
Council from ﬁnal judgments ren-
dered in appeal or error by the
Court of Queen’s Bench :
(1) In all cases where the matter
in dispute relates to any fee of
ofﬁce, duty, rents, revenue, or any
sum of money payable to Her
Majesty;
(2) In cases concerning titles to
lands or tenements, annual rents,
)CC.
398 B.N.A. ACT, s. IOL—AMENDMENTS To coma.
Appcal under
Code of Pro-
cedure.
and other matters by which the
rights in future of parties may be
affected ;
(3) In all cases wherein the
matter in dispute exceeds the sum
or value of ﬁve hundred pounds
sterling [C. S. L. C. 1861, c. 77.
s. 52].
Art. 6009 of R. S. Q., 1888.
“The following article is added
after art. 1178 :-—1178A. Causes
adjudicated upon in review, which
are susceptible of appeal to Her
Majesty in Her Privy Council, but
the appeal whereof to the Court of
Queen’s Bench is taken away by
arts. 1115A and 1142.1, may never-
thelessbe appealed to Her Majesty
by observing the same formalities
and provisions, and subject to the
same conditions, as in the case of
judgments rendered by the Court
of Queen’s Bench (appeal side),
and with the same effect, as if
every provision of law, in relation
to appeals to Her Majesty from
judgments of the Court of Queen’s
Bench, was enacted in this article
with respect to the Superior Court
sitting in review, its judges, its
oﬁicers, or their office.
Arts. 1114, 1115, 1115A, as
amended by 54 Vict. c. 48.,
run as follows z—Error may be
brought against any judgment of
the Superior Court founded upon
a general verdict given by a special
jury. It must be brought before
the Ct. of Queen’s Bench sitting
in appeal. Questions of law only
can be argued in error.
Art. 1115. Unless otherwise
provided by statute, an appeal lies
to the same court [Ct. of Q. B.,
appeal side] upon any other ﬁnal
judgment rendered by the Superior
Court, except in cases of certiorari,
and in matters concerning munici-
pal corporations or ofﬁces, as pro-
vided in art. 1033.
Then follows the Art. 1115A,
referred to above as altered.
Nevertheless, an appeal does not
lie in cases in which the sum
claimed is under $200, and in
which judgment has been ren-
dered by the Superior Court sitting
in review ; nor shall a person who
has inscribed in review before
three judges in the Superior Court
any cause of the Superior Court,
and on such inscription proceeded
to judgment, be entitled to appeal
to the Ct. of Queen’s Bench from the
judgment of the Superior Court
sitting in review, if such judgment
conﬁrms that rendered in the ﬁrst
instance.
Art. 1142 was substantially to
the same effect as the latter part of
art. 1115A, “ Circuit Court ” being
substituted for “ Superior Court.”
1179. Nevertheless, the execu-
tion of a judgment of the Court of
Queen’s Bench cannot be prevented
or stayed, unless the party aggriev-
ed gives good and suﬁicient sure-
ties, within the delay ﬁxed by the
court, that he will effectually prose-
cute the appeal, satisfy the con-
demnation, and pay such costs and
damages as may be awarded by
Her Majesty, in the event of the
judgment being confirmed. The
security may be received before
one of the judges of the Court of _
Queen’s Bench.
The sureties justify their sol-
vency upon the real estate which
is described in the bail bond. One
surety suflices if the real estate
which he describes is equal to the
amount of the security over and
above all charges and hypothecs.
The judge who receives such
security may order, either on de-
mand or otherwise, the production
of the registrar’s certiﬁcate, the
valuations rolls, and any other
documents for the purpose of the
security, and is bound to put such
questions as he deems advisable to
the sureties, and such questions
and answers thereto may be taken
down in writing.
The party appellant may, how-
ever, exempt himself from furnish-
ing such security by depositing an
amount equal to that required for
the security, either in money, in
bonds of the Dominion or of this
province, or in municipal deben-
B.N.A. ACT, s. 101.—ONT. JURISPRUDENCE.
399
tures; and such moneys, bonds, or
debentures are deposited either
with the clerk of the Court of
Queen’s Bench, or with the sheriff,
as the judge may direct. R. S. Q.,
1888, art. 6010.
Ontario Jurisprudence. —- After
the passing of 31 Geo. 3. c. 31.,
dividing Upper and Lower
Canada, the Legislature of Upper
Canada, or, as it is now, Ontario,
passed the 32 Geo. 3. c. 1., 15
Oct. 1792', which repealed 14 Geo.
3. c. 83., in so far as that Act
constituted the laws of Canada a
rule of decision in matters of con-
troversy relating to property and
civil rights; and by sec. 3 enac-
ted that in all matters of contro-
versy relative to property and civil
rights resort should be had to the
laws of England as the rule for the
decision of the same. By sec. 4, no-
thing in the Act was to be con-
strued to vary any of the ordinances
passed by the Governor and
Legislative Council of Quebec pre-
vious to the division of the pro-
vinces otherwise than as they are
necessarily varied by the Act. See. 5.
All matters relating to testimony
and legal proof in the investigation
of fact and the forms thereof in the
several courts of law and equity
within the province shall be regu-
lated by the rules of evidence estab-
lished in England. Sec. 6 provided
that no alteration was to be made in
the subsisting provisions respecting
ecclesiastical rights or dues within
the provinces, or with the forms
of proceeding in civil actions, or to
the jurisdiction of the court already
established, or to introduce any of
the laws of England respecting the
maintenance of the poor or respect-
ing bankrupts. By 32 Geo. 3.
c. 2., all and every issue and issues
of fact should be tried and deter-
mined by the unanimous verdict
of 12 jurors. 33 Geo. 3. c. 5.
dealt with solemnization of mar-
riage. 33 Geo. 3. c. 8. estab-
lished the Court of Probate. 34
Geo. 3. c. 2., 1794, established 'a
superior court of civil and criminal
jurisdiction, called the Court of 103131101115 from
King’s Bench for Upper Canada,
and that it should possess all such
powers and authorities as by the
law of England are incident to a
superior court of civil and criminal
jurisdiction, and do all things in
as full and ample a manner as
done by the King’s Bench, Com-
mon Bench, or Court of Exchequer
in England.
By sees. 31 and 32, all records of
the late Courts of Common Pleas
in that province were to be trans—
mitted into, and deposited in, the
Court of King’s Bench.
A Court of Appeal, by sec. 33,
was to consist of the Lieutenant-
Governor, or person administering
the government, or the Chief J us-
tice of the province, together with
two or more members of the Ex-
ecutive Council of the province.
Sec. 35 provided that an appeal
should lie to the Court of the
Governor and Executive Council
from all judgments given in the
King’s Bench where the matter of
controversy exceeded the sum of
£100, or related to the taking
of any annual or other rent, cus-
tomary, or other duty, fee, or
any other such like demand of a
general and public nature affecting
future rights, of what value or
amount soever the same may be,
upon proper security being given
by the appellant that he will
effectually prosecute his appeal,
answer the condemnation, and
pay costs, in case the sentence ap-
pealed from be conﬁrmed.
Sec. 36 dealt with appeals to
the Privy Council, and was some-
what similar to the words of 34
Geo. 3. c. 6. 30. of Lower
Canada. [See above] "
It provided that the judgment
of the said Court of Appeal shall
be ﬁnal in all cases where the mat-
ter in controversy shall not exceed
the sum or value of £500 sterling,
but in cases exceeding that amount,
as well as in all cases where the
matter in question shall relate to
the taking of any annual, or other
ntario.
400
B.N.A. ACT, s. 101.—-COURT OF ERROR.
Controversie 5
between Dom.
and Prov.
rent, customary, or other duty, or
fee, or any other such like demand
of a general and public nature
aﬁecting future rights, of what
value or amount soever the same
may be, an appeal may lie to
His Majesty in his Privy Coun-
cil, upon proper security being
given by the appellant,” &c., to
abide the result. This Act con-
tained no proviso as to His
Majesty’s prerogative. District
Courts, having jurisdiction in
all actions of contract for sums
above 40.9. and under £15, were
established by 34 Geo. 3. c. 3.
Jurisdiction extended to £40 by
37 Geo. 3. c. 6. in action to recover
a liquidated debt. 40 Geo. 3.
(1800) c. 1. declared the criminal
law of England as it stood on
17 Sept. 1792 to be the criminal
law of the province.
The Court of Error and Appeal
was constituted in Upper Canada
by 12 Vict. c. 63. s. 38. See
C. S. U. C. 1859, c. 13.
By sec. 9, C. S. U. C. c. 13.,
the Court shall have an appel-
late civil and criminal jurisdiction
throughout Upper Canada, and
an appeal shall lie thereto from
all judgments of the Court of
Queen’s Bench and Common
Pleas, and from all judgments,
orders, and decrees of the Court
of Chancery. 12 Vict. c. 63. s. 40.
By sec. 57, C. S. U. C. c. 13.,
appeals to Her Majesty in Her
Privy Council. The judgment of
the Court of Error and Appeal
shall be ﬁnal where the matter in
controversy does not exceed the
sum or value of $4,000.
Sec. 58. In a case exceeding
that amount, as well as in a case
where the matter in question relates
to the taking of any annual or
other rent, customary or other
duty, or fee, or any like demand
of a general and public nature
affecting future rights, of what
value or amount soever the same
may be, an appeal shall lie to Her
Majesty in Her Privy Council.
12 Vict. c. 63. 46.
Then by sec. 59 the security for
costs to be provided is $2,000.
Sec. 61 provided that sec. 16
shall apply to appeals, that is, that
execution should not he stayed in
such cases without compliance
with the provisions set out in that
section.
B. S. O. 1877, c. 37. s. 1, pro-
vided that the Supreme Court and
Exchequer Court of Canada, or the
Supreme Court of Canada alone,
according to the provisions of the
Act of the Parliament of Canada
known as the Supreme and Ex-
chequer Court Act, 38 Vict. c. 11.,
shall have jurisdiction in the follow-
ing cases :—
(1.) Of controversies between the
Dominion of Canada and this pro-
vince.
(2.) Of controversies between
any other province of the Dominion
which may have passed an Act
similar to this present Act and this
province.
(3.) Of suits, actions, or pro-
ceedings in which the parties
thereto by their pleadings have
raised the question of the validity
of an Act of the Parliament of
Canada, or of an Act of the legis-
lature of this province, when, in the
opinion of a judge of the court
in which the same are pending,
such question is material; and in
such case the said judge shall, at
the request of the parties, and may
without such request, if he thinks
ﬁt, order the case to be removed to
the Supreme Court in order to the
decision of such question. [See
R. S. O. 1887, c. 42.]
The Ontario Illicit Liquor Sell-
ing Act, 1881, 44 Vict. c. 27. s. 17,
gave a right of appeal from a judg-
ment or decision of any of the
superior courts, or any judge
thereof, upon any application to
quash a conviction made under
0. 181. of R.-~S. O. 1877, or under
this Act, or to discharge a prisoner
who is held in custody under any
such conviction. But no such
appeal lay from a single judge, or
if the court was unanimous, un-
B.N.A. ACT, s. lOl.-—CONSTITUTIONAL POINTS.
401
less the Att.-Gen. for Ontario shall
certify the point in dispute is of
sufﬁcient importance to justify the
case being appealed.
By R. S. O., 1887, c. 44. s. 52,
s.-s. 2, “The High Court shall have
jurisdiction to entertain an action,
at the instance of either the Attor-
ney-General for the Dominion or
the Attorney-General of this pro-
vince, for a declaration as to the
validity of any statute or any pro-
vision in any statute of this legis-
lature, though no further relief
should be prayed or sought; and
the action shall be deemed suffici-
ently constituted if the two officers
aforesaid are parties thereto. A
judgment in the action shall be
appealable like other judgments of
the Court.”
Thus the question as to the
power conferred on the Ontario
Lieutenant-Governor of pardoning,
raised in the Att.-Gen. for the
Dominion 'v. Att.-Gen. of Ontario,
23 S. C. R. 458; 19 O. R. 31; 20
O. B. 222, was heard. And under
the following Act the question of
the Local Option Law was placed
before the judges for their opinion,
18 C. A. R. 572, ante p. 205.
Reference to Court Authorized.
The Ontario Act, 1890 (assen—
ted to 7 April), 53 Vict. c. 13.,
intituled “ An Act for expediting
the decisions of constitutional and
other provincial questions.” By
sec. 1 the Lieutenant-Governor in
Council may refer to the High
Court, or a Divisional Court there-
of, or to the Court of Appeal, for
hearing or considering any matter
which he thinks ﬁt to refer, and
the Court shall thereupon hear or
consider the same.
Court to Certify Opinion.
Sec. 2. The Court is to certify
to the Lieutenant-Governor in
Council its opinion on the question
referred, with the reasons therefor,
which are to be given in like
manner as in the case of a judg-
ment in an ordinary action; and
any judge who differs. from the
opinion of the majority may in
S 2340.
like manner certify his opinion,
with his reasons therefor, to the
Lieutenant-Governor in Council.
Notice to Att.-Gen. of Canada.
Sec. 3. In case the matter re-
lates to the constitutional validity
of any Act which has heretofore
been or shall hereafter be passed
by the legislature of this province,
or of some provision in any such
Act, the Attorney-General of
Canada shall be notiﬁed of the
hearing in order to be heard if
he sees ﬁt.
Notice to Persons Interested.
Sec. 4. The Court shall have
power to direct that any person
interested, or where there is a
class of persons interested, any
one or more persons as repre-
sentatives of such class, shall be
notiﬁed of the hearing, and such
persons shall be entitled to be
heard.
Appointment of Counsel to Argue
the Case.
Sec. 5. Where any interest
affected is not represented by
counsel, the Court may, in its
discretion, request some counsel
to argue the case in such interest,
and the reasonable expense there-
of shall be paid out of the Suitors’
Fee Fund or otherwise.
Sec. 6. The opinion of the
Court shall be deemed a judgment
of the Court, and an appeal shall
lie therefrom as in the case of a
judgment in an action.
Enactments applicable to
Appeals.
Sec. '7. In case of the matter
being appealed from the High
Court, or a Divisional Court there-
of, to the Court of Appeal, secs.
2, 3, 4, 5, 6, shall apply in like
manner as if the original reference
had been to the Court of Appeal.
An appeal to Her Majesty in Her
Privy Council from a judgment of
any court on a reference under
this Act shall not be subject to
the restrictions contained in the
R. S. of this province respecting
appeals to Her Majesty in Council.
CC
In Constitu-
tional ques-
tions, notiﬁca-
tion of
Att.-Gen.
402 B.N.A. Ac'r, s. IOL—OTHER PROVINCIAL COURTS.
S. C.s, New
[These restrictions were : B. S. O.
Brunswick and 1887 , c. 41. In a case where the mat-
Nova Scotia.
ter in controversy exceeds the sum
or value of $4,000, as well as in the
case where the matter in question
relates to the taking of any annual
or other rent, customary, or other
duty or fee, or any like demand
of a general and public nature
aﬁecting future rights, of what
value or amount soever the same
may be, an appeal shall lie to Her
Majesty in Her Privy Council;
and except as aforesaid no appeal
shall lie to Her Majesty in Her
Privy Council. [See C. S. U. C.
1859, c. 13. ss. 57, 58; 34 Geo. 3.
U. C. c. 2.] By sec. 2 security
was to be given in 32,000 to the
satisfaction of the court appealed
from. By sec. 3, on security being
perfected, execution to he stayed.
Sec. 4, practice applicable to stay-
ing execution on appeals to Court
of Appeal to be applicable to
appeals to Her Majesty in Her
Privy Council. Sec. 5 dealt with
approval of security, and sec. 6
recovery of costs awarded]
New Brunswick. -— There the
S. C. was established pursuant to
instructions given to the ﬁrst C. J.
of the province.
The commission to the ﬁrst C. J.
ran : Geo. the 3rd, 850., to, our . .
well-beloved Geo. Duncan Lud-
low, Esq., greeting giving
and granting unto you full power
and authority in our said S. C. “ to
hear, try, and determine all pleas
whatsoever, civil, criminal, and
mixed, according to the laws,
statutes, and customs of that part
of our kingdom of Great Britain
called England, and the laws of
our said province of New Bruns-
wick, not being repugnant thereto,
and executions of all judgments of
our said court, to award and to act,
and do all things which any of our
justices of either Bench, or Barons
of the Exchequer in England, may
or ought to do ; and to make such
rules and orders in our said court
as shall be judged useful and con-
venient, and as near as may be
agreeable to the rules and orders
of our Courts of King’s Bench,
Common Pleas, and Exchequer in
England. To have, hold, exercise,
and enjoy the said office and place
of Chief Justice of our Supreme
Court of Judicature of and in our
said province of New Brunswick,
with all,” &c., rights and privileges.
[See Att.-Gen. v. Baillie, Feb. 1st,
1842, 3 S. C. N. B. (1 Kerr),
p. 453].
Nova Scotia was the same as
New Brunswick. R. S. N. S.,
1873, 4th series, c. 89. s. 4 enacted
the Supreme Court shall have the
same powers as are exercised by
the Courts of Queen Bench, Com-
mon Pleas, Chancery, and Ex-
chequer in England. Sec 5. The
Equity judge shall have jurisdic-
tion in all cases formerly cognizable
by the Court of Chancery, and shall
exercise the like powers, and apply
the same principles of equity, for-
merly administered in that court.
In Uniacke v. Dickson, Feb. 19,
1848, 2 N. S. R. 287, Sir J.
Harvey, Ch., Halliburton, C.J ., and
Hill, J ., it was held the statutes of
33 H. 8. c. 39. and 13 Eliz. c. 4.,
which gave the Crown a lien upon
real estate of certain public ofﬁcials
as a security for their bonds to
faithfully discharge their duty,
were not in force in Nova Scotia.
Prince Edward Island—Acts
were passed in 13 Geo. 3. c. 3.;
26 Geo. 3. c. 11.; 35 Geo. 3.
C. 7.; 59 G60. 3. C. 3.; 3 ‘Vill. 4.
c. 12.; and were repealed by 12
Vict., 1849, c. 9., Laws P. E. 1.,
Vol. 1, p. 573. The Act of 13
Geo. 3. c. 3., 1773, established the
times and places of the Supreme
Court; see 16 Geo. 3., 1776,, c. 4.,
Laws P. E. I., Vol. 1, p. 17. That
last Act narrated that whereas in
November last the capital of the
island was invaded by two provin-
cial privateers, who carried off the
commander-in-chief, the surveyor-
general, together with many records
of the S. C., the public seal of the
island, and His Majesty’s com-
mission, by reason of which the
new C. J. could not procure his
commission, nor the S. C. sit until
B.N.A ACT, s. 101—PROVINCIAL COURTS.
403
25 June, when it ought to have sat
on the third Tuesday in February,
therefore it enacted that all judg-
ments delivered by the said court
should be deemed valid. See p. 396.
British Columbia—British law
declared in force, 19 Nov. 1858.
See Ordinance, following 21 8: 22
Vict. c. 99.
As to S. C. in B. C. see C. S.
B. C., 1877, cc. 51., 52., 53., and
c. 54., merging the S. Courts of
B. C. and Vancouver Island, and
Petition of Right Act, e. 59., and
C. S. B. C., 1888, p.241, 0. 31.
Manitoba—A Supreme Court.
was established by 34 Vict., 1871,
c. 2. By 38 Vict., 1874, c. 12.,
“The Court of Queen’s Bench,
Manitoba, shall decide and deter-
mine all matters of controversyv
relative to property and civil
rights, according to the laws exist-
ing or established and being in
England, as such were, existed,
and stood on 15 July 1870, so
far as the same can be made
applicable to matters relating to
property and civil rights in this
province.” And the practice and
procedure in the said court and
county courts in Manitoba were to
be regulated by the rules of evi-
dence and procedure as in England
on the above date, except where
the said laws, rules of evidence,
and procedure may have been or
hereafter shall be altered by the
Manitoba Legislature.
North-West Territories—Ordi-
nance No. 4 of 1878, for the
purpose of civil justice, formed
judicial districts in which courts of
civil jurisdiction were to be held,
presided over by a stipendiary
magistrate, who had, subject to the
N. W. Territories Acts, 187 5, 187 '7 ,
jurisdiction over all matters of
civil law and equity, all matters of
wills and intestacy.
By the N. W. Territories Act,
38 Vict. (D.), 1875, c. 49. s. 59,
a court of civil and criminal
jurisdiction shall be held in the
said territories. By the N. W. Ter-
ritories Consolidation Act, 1880,
43 Vict. (D) c. 25. s. 76, each sti-
pendiary magistrate could exercise Courts of
all magisterial functions appertain-
ing to a justice of the peace or any
two justices; and shall also have
power to hear and determine any
charge against any person for any
criminal offence alleged to have
been committed in the N. W. T.,
if in territory eastwards of the
Rocky Mountains, in territory not
oﬂicially ascertained up to British
Columbia. Sub-secs. 1 to 4 deals
with larceny, embezzlement, and
assaults, which are to be tried with-
out a jury. Sub-sec. 5 was: “ In
all other criminal cases the stipen-
diary magistrate and a justice of
the peace, with the intervention of
a jury of six, may try any charge
against any person or persons for
any crime.” By sub-sec. 7 the
stipendiary magistrate was to take,
or cause to be taken, in writing,
full notes of the evidence; which
by sub-sec. 8, in a case of capital
conviction, are to be forwarded to
the Minister of Justice. By sub-
sec. 10, any person arraigned for
treason or felony might challenge
six jurors. By sec. 77, a person
convicted of any oﬁence punishable
by death may appeal to the Q. B.
Manitoba, which court shall have
jurisdiction to conﬁrm the con-
viction or order a new trial. [See
Riel 'v. The Queen, 10 App. Cas.
67 5.] By sec. 85, every stipendiary
magistrate shall have power to hear
any claim, dispute, or demand, as
follows :——Sub-sec. 1. Where the
claim or demand is for a tort,
wrong, or grievance, in which the
amount claimed does not exceed
$500, or if for a debt, or on a con-
tract, in which the amount claimed
does not exceed $1,000, in a sum-
mary way, and without the inter-
vention of a jury. Sub-sec. 2:
In all other claims, disputes, or
demands than those above men-
tioned, or for the recovery of the
possession of real estate, if neither
party demand a jury, in a summary
way ; but if either party demand a
jury, then with a jury not exceed-
ing six. The section went on to
say there was to be no hearing of
Manitoba.
002
4104 B.N.A. ACT, s. 101.—SUPREME COURT &. APPS.
Canada’s Su-
preme Court.
an action for any gambling debt
or for any debt for intoxicating
liquor. By sec. 88, appeal from
the decision of any stipendiary or
presiding judge in a claim under
sub-sec. 2, sec. 85, may be to Q. B.
Manitoba.
By R. O. N. W. T. 1888, c. 58.
406, sec. 435: No appeal
shall lie from the judgment or
order of the court presided over
by a single judge, or a judge of
the court to the court in bane
without the special leave of the
judge or court whose judgment or
order is in question, unless the title
to real estate, or some interest
therein, or the validity of a patent,
is affected, or unless the matter in
controversy on the appeal, in mat-
ters of contract exceeds the sum of
$500, and in matters of torts ex-
ceeds the sum of $200, exclusive
of costs; or unless the matter in
question relates to the taking of an
annual or other rent, customary or
other duty or fee, or a like demand
of a general or public nature
affecting future rights. [The
words in italics repealed by Ordin-
ance No. 21 of 1890, sec. 7.]
Supreme Court of Canada.—
38 Vict. c. 11. established the Sn-
preme Court as a court of common
law and equity.
Sec. 17. Subject to the limita-
tion and provisions hereinafter
made, an appeal shall lie to the
Supreme Court from all ﬁnal judg-
ments of the highest court of ﬁnal
resort, whether such court be
a court of appeal or of original
jurisdiction, now or hereafter es-
tablished in any province of Can-
ada, in cases in which the court of
orlginal jurisdiction is a superior
court: Provided that no appeal
shall be allowed from any judg-
ment rendered in the province of
Quebec, in any case wherein the
sum or value of the matter in dis-
pute does not amount to $2,000;
and the right to appeal in civil
cases given by this Act shall be un-
derstood to be given in such cases
only as are mentioned in this sec-
tion, except Exchequer cases, cases
of mandamus, habeas corpus, or
municipal bye-laws, as hereinafter
provided. [Amended by R. S. C.,
1886., c. 135. s. 24; 51 Vict. (D.),
c. 37.; 54 85 55 Vict. (Dom.) c. 25.,
and other Acts]
By R. S. (C.), 1886, c. 135.
sec. 26. Except as otherwise pro-
vided in this Act, or in the Act pro-
vided for the appeal, no appeal
shall lie to the Supreme Court but
from the highest court of last re-
sort having jurisdiction in the pro-
vince in which the action, suit, or
cause, matter or other judicial pro-
ceeding, was originally constituted,
whether the judgment or decision
in such action, suit, cause, matter
or other judicial proceeding was or
was not a proper subject of appeal
to such highest court of last resort.
(2.) Provided that an appeal
shall lie directly to the Supreme
Court from the judgment of the
court of original jurisdiction, by
consent of parties.
(3.) Provided also, that an appeal
shall lie to the Supreme Court by
leave of such court, or a judge
thereof, from any judgment, decree,
or decretal order, or order made
and pronounced by a superior
court of equity, or made or pro-
nounced by any judge in equity,
or by any superior court in any
action, cause, or matter or other
judicial proceeding in the nature of
a suit or proceeding in equity, and
from the ﬁnal judgment of any
superior court of any province
other than the province of Quebec,
in any action, suit, cause, matter,
or other judicial proceeding origi-
nally commenced in such superior
court, without any intermediate
appeal being had to any interme-
diate court of appeal in‘ the pro-
vince. [The above is taken from
38 Vict. c. 11. ss. 11, 27; 42 Vict.
c. 39. ss. 5, 6, 7.] '
Sec. 29. No appeal shall lie unde
this Act from any judgment ren-
dered in the province of Quebec
in any action, suit, cause, matter,
or other judicial proceeding, where-
in the matter in controversy does
not amount to the sum or value of
B.N.A.ACT,s.10l.-—APPEALS IN HABEAS CORPUS, as. 405
$2,000, unless such matter, if less
than that amount—
(a) Involves the question of the
validity of an Act of the Parlia-
ment of Canada, or of the legisla-
ture of any of the provinces of
Canada, or of an ordinance or Act
of any of the councils or legisla-
tive bodies of any of the territories
or districts of Canada; or
(b) Relates to any fee of ofﬁce,
duty, rent, revenue, or any sum of
money payable to Her Majesty, or
to any title to lands or tenements,
annual rents, or such like matters
or things where the rights in future
might be bound. [38 Vict. c. 11.
s. 17; 42 Vict. c. 39. s. 8.]
(2.) Provided that such appeals
shall lie only from the Court of
Queen’s Bench. [This sub-sec. 2,
was amended by 54 & 55 Vict.
c. 25. s. 3; see below]
See. 71. The judgment of the
Supreme Court shall, in all cases,
be ﬁnal and conclusive, and no
appeal shall be brought from any
judgment or order of the Supreme
Court to any court of appeal estab-
lished by the Parliament of Great
' Britain and Ireland, by which ap-
peals or petitions to Her Majesty
in Council may be ordered to be
heard; saving any right which
Her Majesty may be graciously
pleased to exercise by virtue of her
royal prerogative. [38 Vict. c. 11.
s. 47
Lord Cairns, L.C., has said that
the ﬁrst part of this section re-
ferred to a contemplated Court of
Appeal then proposed in England
[see the Judicature Act of 1873,
s. 21] to hear colonial appeals.
Johnson v. Ministers St. Andrews,
18 L. C. J. 113; 1 S. C. R. 235;
in P. C. Dec. 10, 1877, 3 App. Cas.
159; 37 L. J. P. C. 557; 26 W.
R. 359.
By 54 8t 55 Vict. (D.) c. 25.,
assented to 30 Sept. 1891, see. 2
amended sec. 24 (g.) of the R. S. C.,
1886, c. 135., which gave a right of
appeal in “habeas corpus” cases
“not arising out of a criminal
charge ” by adding after the words
“ habeas corpus ” the words “ cer- Amendment of
tiorari or prohibition.”
By sec. 3 of 54 &. 55 Vict. c. 25., sub-sec. 2 of sec. 29 of the
R. S. C., 1886., c. 135. is hereby
repealed, and the following sub-
sections are substituted therefor :—
“ (2.) Where the matter in contro-
versy involves any such question,
or relates to any such fee of ofﬁce,
duty, rent, revenue, or sum of
money payable to Her Majesty, or
to any such title to lands or tene-
ments, annual rents, or such like
matters or things where rights in the
future might be bound, or amounts
to or exceeds the sum or value of
82,000, there shall be an appeal
from judgments rendered in the
said province, although such action,
suit, cause, matter, or judicial pro-
ceeding may not have been origin-
ally instituted in the Superior
Court.
“ (3.) Provided that such appeals
shall lie only from the Court of
Queen’s Bench, or from the Supe—
rior Court in review in cases where,
and so long as, no appeal lies from
the judgment of that court when it
conﬁrms the judgment rendered in
the court appealed from, which by
the law of the province of Quebec
are appealable to the Judicial Com-
mittee of the Privy Council.
“ (4.) Whenever the right to ap-
peal is dependent on the amount in
dispute, such amount shall be
understood to be that demanded,
and not that recovered, if they are
different.”
By sec. 4 of the last-cited Act,
sec. 37 of the R. S. C., 1886,
c. 135. [38 Vict. c. 11. s. 52, a
section that the Governor in
Council might refer any matter
to the Supreme Court for those
judges to certify their opinions] is
repealed, and the following sub-
stituted therefor :—
“37 Important questions of law
or fact touching provincial legisla-
tion, or the appellate jurisdiction
as to educational matters vested in
the Governor in Council by the B.
N. A. Act, 1867, or by any other
R. S. C. 1886.
406
B.N.A. ACT, s. 101.—-FINAL JUDeMENTs.
CUVILLIER c.
AYLWIN.
Act or law, or touching the consti-
tutionality of any legislation of the
Parliament of Canada, or touching
any other matter with reference to
which he sees ﬁt to exercise this
power, may be referred, by the Go-
vernor in Council, to the Supreme
Court for hearing or consideration;
and the court shall thereupon hear
and consider the same.
“ The Court shall certify to
the Governor in Council, for his
information, its opinion on ques-
tions so reserved, with the reasons
therefor, which shall be given in
like manner as in the case of a
judgment upon an appeal to the
said court; and any judge who
differs from the opinion of the
majority shall in like manner
certify his opinion and his reasons.
“ In case any such question
relates to the constitutional validity
of any Act which has hitherto been
or shall hereafter be passed by the
legislature of any province, or of
any provision in any such Act, or
in case for any reason the Govern-
ment of any province has any
special interest in any such ques-
tion, the Attorney-General of such
province, or, in the case of the
North-West Territories the Lieu-
tenant-Governor thereof, shall be
notiﬁed of the hearing, in order
that he may be heard if he thinks ﬁt.
“ The Court shall have power
to direct that any person interested,
or, where there is a class of persons
interested, any one or more persons
as representatives of such class, shall
be notiﬁed of the hearing upon any
reference under this section, and
such persons shall be entitled to
be heard thereon.
“ The Court may, in its dis-
cretion, request any counsel to
argue the case as to any interest
which is affected, and as to which
counsel does not appear [see On-
tario Act, p. 401], and the reasonable
expenses thereby occasioned may
be paid by the Minister of Finance
and Receiver-General out of any
moneys appropriated by Parliament
for expenses of litigation.
“ The opinion of the Court
upon any such reference, although
advisory only, shall, for all pur-
poses of appeal to Her Majesty in
Council, be treated as a ﬁnal judg-
ment of the said Court between
parties.
“ (7 General rules and orders,
with respect to matters coming
within the jurisdiction of the
Court under this section, may be
made in the same manner and to
the same extent as is provided by
this Act with respect to other
matters within its jurisdiction,
and, in particular, such rules and
orders as to the judges making
them seem best for the investiga-
tion of questions of fact involved
in any reference thereunder.”
Owing to the above-cited Act of
34 Geo. 3. c. 6. (see p. 397), it was
doubted whether an appeal could
be allowed to the Privy Council as
an act of grace. See Cuvillier v.
Aylwin, in P. C. 24 Nov. 1832,
before the Master of the Rolls
[Leach], Sir Christopher Robinson
[Judge of Adm. Ct.], and Henry
Ellis; 2 Knapp P. C. 72: Stuart’s
R. 527. There, on 20 Feb. 1807,
in the King’s Bench, in the district
of Montreal, judgment was re-
covered by J. Jones and Thomas
White against T. Aylwyn, J.
Harkness, and Austin Cuvillier
(co-partners and merchants trading
at Quebec), severally and jointly,
for the sum of £27 2 4s. 9d, and a
sum of £20 1.9. lOd. for costs.
Execution not having been sued
out, Jones and White assigned to
the respondent, Obadiah Aylwyn,
for valuable consideration, the judg-
ment, with interest accrued on the
debt and costs, which then amoun-
ted to the sum of £397 14s. 7d.
current coin of L. C. Judgment
not being satisﬁed, in 1815 the
respondent commenced an action
against the appellant Cuvillier.
The action was dismissed 19 June
1816, but on 30 July‘\1821 judg-
ment was given for the respondent
in the Court of Appeal in Quebec,
B.N.A. ACT, s. IOL—PR'IVY ooUNoIL APPEALS.’ 4.07
and £397 148. 7d. was adjudged
to be paid to him with costs. The
appellant presented a petition to
the King in Council, May 24,
1823, and on 23 June 1824 His
Majesty was pleased to order the
petitioner should be allowed to
enter and prosecute an appeal
from the said judgment of the
30th July 1821 (without prejudice
to the question whether the appeal
be competent or not), upon security
being given here in the sum of
£100 to prosecute the said appeal
to eifect within the space of one
year and a day from the date of
this Order in Council. The appel-
lant not prosecuting his appeal,
respondent in Dec. 1826 presented
a petition that the appeal be dis-
missed. On 30th Jan. and 2nd
Feb. 1827 the matter came on
before the Board of the Privy
Council, when their Lordships,
considering the question affected
important interests of a large
class of His Majesty’s subjects,
were pleased to order that cases
should be printed, conﬁned to the
question, whether the aforesaid
appeal was or was not competent.
The respondent argued the ap-
peal was incompetent, and cited
31 Geo. 3. c. 31. ss. 2, 30, 31, 34,
and the Act of the legislature for
the division of the province of
Lower Canada, commonly called
the Judicature Act, 34 Geo. 3. c.
6. s. 30, which Act was transmitted
to England and received the Royal
Assent.
The appellant contended that
the judgment had been recovered
after the dissolution of the appel-
lant’s co-partnership, and that the
debt had been satisﬁed.
The right of His Majesty an-
terior to the passing of the statute
of 31 Geo. 3. c. 31. and the pro-
vincial Act of the 34 Geo. 3. c. 6.
to entertain and determine in His
Privy Council any case on appeal
from the judgment of the Court of
Appeal in Lower Canada is unques-
tionable. The right is not abro-
gated by the last-mentioned statute,
and it is not within the competence CUVILLIER v.
of the provincial legislature to AYLWIN-
abridge, much less abrogate, any
prerogative right of the Crown.
Yet, even if it were competent for
the provincial legislature to pass
an Act to that effect, the right of
His Majesty to receive and hear
the appeal in the case speciﬁed is
not taken away by the provincial
Act of 34 Geo. 3. c. 6., as there
is an express saving of all rights
and prerogatives of the Crown,
sec. 43 [see above].
His reasons were: Because His
Majesty’s prerogative rights, es-
pecially such as concern the
administration of justice, cannot,
it is conceived, be abridged, much
less abrogated, except by the most
direct and express words of an Act
of the general legislature. Because there are no words in
the statute 31 Geo. 3. c. 31. which
take away the right of appeal;
although the words of the pro-
vincial statute of 34 Geo. 3. c. 6.
are more extensive, yet there is an
express saving of all prerogatives
of the Crown; and if the Act is
to be construed as intending to
take away the right of His Majesty
to receive and hear an appeal in
the case speciﬁed, it was not
within the competence of the
legislature to pass such an Act.—
Signed Henry Brougham, for ap-
pellant, and for respondent,
Stephen Lushington.
The date of the judgment ought
to be 24 Nov. 1832. Present,
Sir John Leach, M.R., Sir Chris-
topher Robinson, and Mr. Henry
Ellis.
Sir John Leach, M.R., is re-
ported to have said: “It is not
necessary to hear counsel on the
other side. The king has no
power to deprive the subject of
any of his rights; but the king,
acting with the other branches of
the legislature, as one of the
branches of the legislature, has the
power to deprive any of his sub-
jects, in any of the countries under
his dominion, of any of his rights.
4.08 _
B.N.A. ACT, s. lOL—BROUGHAM’S OPINION.
CUvILLIER v.
AYLwm.
The petition must, therefore, be
dismissed.”
The report of Cuvillier o. Aylwin
in Stuart’s R., p. 527, contains a
note of Lord Brougham’s opinion,
while still Mr. Brougham.
His opinion was: “ I am clearly
of opinion that no such limitation
is valid to bar an appeal to the
King in Council. I should greatly
doubt if any colonial Act, though
allowed by the Crown, if uncon—
ﬁrmed by Act of Parliament, has
power to take from the subject
this right. But a colonial Act
never allowed, can clearly have no
effect. Even in cases where a
limitation has been validly intro-
duced by law, the Privy Council
have been in the practice of allow-
ing appeals almost as a matter of
course.
“ Such petitions are termed pe-
titions of doleance, and, I believe,
never refused, although the law
may have excluded appeals under
a certain amount, or after a certain
time.” Lincoln’s Inn, 21 June
1823.
The note in Stuart goes on to
say: “ It would seem that where
the question arising upon appeal
from a colonial court to His
Majesty in his Council, is one of
ordinary municipal regulation, re-
lating to the credibility or com-
petency of particular witnesses, or
to the weight of evidence, or to
the regularity in point of form of
the proceedings in the cause, or
generally wherein the grievance
complained of is applicable to the
party appellant and conﬁned to
his cause, then the limitation of
the right of appeal to certain
cases in amount would be followed
by His Majesty in his Privy
Council. And this not merely be-
cause the limitation in question
was established by the colonial
legislature, but because such
limitation is convenient, and sanc-
tioned by long usage, and the court
of the King in Council itself.
Such a limitation has at all times
existed in relation to appeals from
the French islands of Guernsey,
&c., and in old British colonies; and
as to the latter, it would probably be
found that the limitation had been
extended to them by analogy from
the practice which had long ob-
tained as to the former, and to be
traced to the power of entertaining
or rejecting appeals from the
colonies, according to a certain
known practice which the Supreme
Court of Appellate Jurisdiction has
at all times exercised, and which,
being the practice of that court, is
the law of it. It is diﬁicult to
conceive any other reason why
appeals from interlocutors rendered
in the courts of the French islands
and of the colonies have been uni-
versally disallowed by the Privy
Council, whilst appeals from inter-
locutors rendered in the Scotch
courts have, in the cases permitted
by law, been allowed by the House
of Lords. Appeals from Guernsey,
&c., to the King in Council have
in all cases exceeding £300 been
allowed, and a like rule obtained in
all the British Colonies. In this
view our provincial statute, then, in
enacting that appeals to the King
in Council shall be only in cases
above £500, cannot be said to have
abridged, or attempted to abridge,
the appellate jurisdiction of that
court.
“ At the same time that such,
it is apprehended, is the general
rule, there is a class of cases which
may perhaps not be comprised
within it :—
“ It seems to be essential to the
maintenance of the imperium of a
metropolitan State over its subor-
dinate possessions, that the judicial
pre-eminence should reside in the
metropolitan State, and, therefore,
that the right of judging in the last
resort, as well in criminal as in
civil matters arising in the colony,
or subordinate State, should be
held by the parent or metropolitan
State: otherwise it would be in the
power of the subordinate State, by
judicial decisions, to undermine and
ultimately to absorb the authority
B.N.A. ACT, S. 101.--QUESTIONS FOR P. c.
409
of the metropolitan State. It is in
questions touching the relations,
however remote, between the two
States—and the operation of the
laws of the one Within the limits of
the other, and concerning in any
way, however indirectly, the sove-
reignty of the one over the other—
that the Acts of the colonial legisla-
tures must be interpreted, or, if
need be, controlled by the autho-
rity of the metropolitan State.
And with respect to this class of
cases, the King in Council could
and ought, it is conceived, to enter-
tain appeals—however small the
sum in controversy might be—if the
cases were such as called for the
interposition of the judicial autho-
rity. Thus, in the case of a decision
in the colonial courts concerning
the operation of the English bank-
rupt laws within the colonies; or,
the statute of George II. enacting
that lands in the colonies should be
seized and taken in execution as
chattels, and that examinations
taken before Lord Mayors of towns
in Great Britain shall in cases be
received as evidence in the colonies
-—-or touching the prerogative, the
ecclesiastical establishments, or
connected in any other way with
public laws—appeals would prob-
ably be entertained by the King in
Council from the colonies. The
above distinction appears suﬁi-
clently clear, and according to it
the public convenience is consulted
without any infringement of the
right of the parent State.
Held in Cushing v. Dupuy [see
ante, p. 83] that Cuvillier v.
Aylwin was open to review. See
also Lord Cairns, L.C., in Thé-
berge u. Landry, in Sup. Ct. Que-
bec, 29 May 1876; in P. C. 7Nov.
1876; 2 App. Cas. 102, 46 L. J.
P. C. 1; 35 L T. 640, and ante,
p. 45. See Christian 1). Corren,
Mich. Term. 1716, l P. Will.
329; 2 Eq. Cas. Ab. 81, where at
a Council held at the Cockpit, it
was held that the Sub ect cannot be
deprived of his right to appeal by
any Words in the king’s grant to
that purpose, much less if the
grant be silent in that particular.
That case was disapproved in The
Queen u. Alloo Paroo, from S. C.
Bombay, 23 June 1847, 5 M00. P.
C. 296. There a statute, 4 Geo. 4.
c. 71. ss. 7, 17, gave the Crown
power to grant a charter to a court
of justice at Bombay, with the same
powers, immunities, jurisdiction,
and authority as were vested in the
court at Fort William by 13 Geo.
3. c. 63. and amending Acts.
The statute 13 Geo. 3. c. 63., S. 18,
contained a power to appeal to His
Majesty in Council in such manner
and in such cases and on such
security as to His Majesty should
seem meet to prescribe in the
charter. The charter, granted in
execution of that power consti-
tuting the Supreme Court of Fort
William, provided that in all
indictments, informations,
criminal suits and causes whatso-
ever, the Supreme Court shall have
full power, and absolute power and
authority, to allow or deny the
appeal of the party, and also regu-
late the terms on which the appeal
shall be allowed. [See 5 Moo.
P. C. p. 299, and The Queen 7;.
Eduljee Byramjee, 5 M00. P. C.
p.279. In Reg. '12. A1100 Paroo
(cited above), Lord Brougham said,
in refusing leave to appeal in a
criminal suit from India: “' ‘he
Crown may abandon a prerogative,
however high and essential to pub-
lic justice and valuable to the sub-
ject, if it is authorized by statute
to abandon it,” and held the court
below had an absolute discretion to
refuse an appeal in criminal cases.
His Lordship then referred to
Cuvillier v. Aylwin.
In the case of THE QUEEN u.
EDULGEE BYRAMJEE, 8 April 1846,
5 M00. P. C. 276, 289, a case in
which leave to appeal was refused
by the S. C., Dr. Lushington said:
“ Nor are we aware that in any one
single instance the Crown has ever,
by exercise of its prerogative,
granted leave to appeal in any such
case ” [appeal in felonies], and
CUVILLIER v.
AYLWIN.
and ~
THE Queen 11.
BYRAMJEE.
410 B.N.A. ACT, s. 101.--RATIFIGATION or con AoTs.
REnPATn v.
ALLEN.
he continued (p. 294), “ It must be
recollected that this is a case in
which the Crown grants a charter
by virtue of an Act of Parliament,
and that charter must be con-
sidered as granted in execution of
the powers which were granted by
that Act of Parliament.”
Colonial Acts ratiﬁed by the
Queen—In REDPATH v. ALLEN
(the “Hibernian,” a question of
liability for damage: the “Hiber-
nian ” had on board a compulsory
pilot, and by Canadian statutes the
shipowner was not to be liable for
damage occasioned by the fault of
such pilot), Dec. 3, 1872, 4 L.
R. P. C. 511; 42 L. J. Adm.
8; 27 L. T. 725; 21 W. R.
276, it was argued that the rights
of suitors in the Vice-Admiralty
Court of Lower Canada cannot be
affected or taken away by a Cana-
dian statute. But Sir Robert
Phillimore, in delivering the udg-
ment of the P. C., said: “It has
been contended by the appellant
that the ‘ Hibernian’ is not re-
lieved from her liability. This
contention is founded on this posi-
tion, that the general and maritime
law is alone applicable to the case,
by which law the wrong-doing
vessel is bound to make full com-
pensation to the suffering vessel for
the damage inﬂicted upon her. 1n
order to sustain this position, it
has been asserted—ﬁrst, that the
Canadian statutes [27 86 28 Vict.
c. 58. s. 10, and 27 & 28 Vict.
c. 13.] on which the learned judge
relied are without authority in the
Vice-Admiralty Court. It has been
said at the bar that this suit might,
and, so far, the statement is correct,
have been instituted in the High
Court of Admiralty, which, it is
also said, would not have taken
cognizance of the statutes, and in
support of this startling proposition
the case of the ‘ Halley,’ decided in
this tribunal, 2 L. R. P. C. 193,
was cited. Their Lordships are
wholly unable to follow the reason-
ing of counsel upon this point. In
the case of the ‘ Halley,’ the judg-
ment turned upon a question as to
the partial, or entire, adoption or
rejection of the law of a foreign
country. In the present case, the
law involved is contained in an Act
of the legislature of a colony
belonging to the Crown, and ratiﬁed
by the express sanction of Her
Majesty. Their Lordships have
no doubt whatever that this law, in
every case to which it is applicable,
is of binding authority equally in
the Queen’s High Court of Admi-
ralty and in the Vice-Admiralty
Court of Canada, as a court of
appeal from which, it is to be ob-
served, their Lordships are now
sitting.”
As to the Right of Appeal.—
Burge on Colonial Law, vol. 1, p.
xlvii., says that the Governor’s in-
structions were to allow an appeal to
His Majesty in his Privy Council,
“ where the sum appealed for unto
us ” exceed 500l., that the appel-
lant gives good security, and then,
“ Provided, nevertheless, where
the matter in question relates to
the taking or demanding any duty
to us, or to any fee of office, or
annual rent, or other such like
matter or thing, where the right in
future may be bound; in all such
cases you are to admit the appeal
to us in our Privy Council, though
the immediate sum or value ap-
pealed from be of less value.”
Her Majesty can, therefore, upon a
petition, allow an appeal in cases
of any value. See Exparte Jacob
de Pariente, Nov. 24, 1832,
2 Knapp, p. 7 0, quoting an opinion
of Northey in a case in 1717. See
Forsyth’s Const. Law, 376.
In ORPHAN BOARD v. VAN
REENEN, July 17 , 1829, 1 Knapp,
853, the Court of Appeal, Cape
Colony, refused to give leave to
appeal, 9 Oct. 1823, from a decree
made on 18 Sept. of the same
year. Lord Wynford said : “ There
is an established rule that if an
appeal be granted, the party must
bring that appeal to a hearing
B.N.A. ACT, s. 101-.—H. OF L. & COL. APPEALS.
411
within one year, unless he obtain
further time for the prosecution of
it from this board, and the respon-
dent may call upon us to dismiss
the appeal on account of the
delay in presenting it. This rule
has never yet been extended to
a case where the appeal has been
refused by the colonial court. .It
is to be hoped that appeals will
rarely, if ever, be refused to parties
who have any pretence of interest.
The king is anxious that complete
justice should be done to all the
inhabitants of the province belong-
ing to his empire, and has directed
the governors of those provinces to
allow appeals to himself in council.
Should, however, a case occur in
which an appeal has been refused,
and the party has neglected to
follow up the appeal (allowed on
petition to the king) for an un-
reasonable time, we shall feel it our
duty to recommend His Majesty to
dismiss it.” But as that particular
case referred to the rights of infants,
and the respondent had onlyr taken
the objection at the hearing, the
appeal was heard, notwithstanding
an unreasonable delay. See also
Lord Brougham in Retemeyer o.
Obermuller, 2 M00. P. C. p. 98.
There is a precedent for the House
of Lords considering the constitu-
tionality of an Act of a colonial
legislature. In 1840 the question
of the validity of an Act of the
province of Upper Canada was
ordered to be propounded in ques-
tions to the judges of England, and
Lord Mansﬁeld, 4 May 1840, de-
livered the unanimous decision of
all the judges, except Lords Den-
man and Abinger, that the Act
was ultra vires [see House of
Lords’ Journals, vol. 72, pp. 224,
254; see ante, p. 346]. The Act in
question was in respect to the sale
of the clergy lands, and caused
great excitement in Canada at the
time. Should an occasion of such
popular excitement occur again,
either from a provincial legislature
passing a law, and refusing to alter
it, which the Dominion Parliament
and Privy Council hold unreason-
able, why should not the same
course be followed and the consti-
tutionality of the obnoxious Act
argued before all the judges of
England? A decision of such a
tribunal would have great weight.
Certainly, if one or two of the
eminent judges of Canada were
asked to take part also in the deci-
sion, it would be gratifying to the
Canadian people. [See 58 8c 59
Vict. c. 44.]
In important cases it is right to
retain the most eminent counsel.
In VALIN o. LANGLOIS, 1879
[see ante, p. 18], Lord Selborne
said the case was of the greatest
importance. “It, therefore, would
have been very unsatisfactory to
their Lordships to dispose of such
an application without, at least,
having had the grounds of it very
fully presented to them.”
Colonial Cases—In re BISHOP
or NATAL, 20 March 1865, 3 M00.
P. C. N. S. 115; 12 L. T. 188;
13 \V. R. 549, Lord Westbury,
L.C., said : “It is the settled pre-
rogative of the Crown to receive
appeals in all colonial causes.”
It is right to add that by 3 8L 4
Will. 4. c. 41., which constitutes
the Judicial Committee of the
Privy Council, Her Majesty has
power to refer to that tribunal for
hearing or consideration any such
other matters whatsoever.
Special reference through a
Secretary of State. — In re
STRONACH, 14 May 1838, 2 Moo.
P. C. 311. By an Act of Grenada,
N o. 250, the decision of the
Chief Justice was ﬁnal and con-
clusive. The Judicial Committee,
while holding they had no power
to entertain the appeal, suggested
a petition to the Crown, through
the Secretary of State, for a refer-
ence to the Judicial Committee
for their opinion on the appeal.
It is understood this practice of
special reference was originated by
ORPIIAN BoARn
v. VAN REENEN.
VALIN v. LANG-
LOIS.
In re BISHOP
0F NATAL.
In re STRONACH.
412
B.N.A. AOT, s. 101.—WIDE POWER or P. c.
In re STRONACI-I.
In re RAMSAY.
4 sec. 25 H. 8. c. 19 (Petitions
to the Court of Delegates to hear
an appeal.) See Mathews '0.
Warner, 4 85 5 Vesey, pp. 193 and
23, respectively.
After the battle of Waterloo, the
claims of British subjects for in-
demnity for their losses during the
French revolution came in. These
claims were directed to be con-
sidered by His Majesty’s Privy
Council [see 2 Knapp, p. 7].
Where no right of appeal by law
exists, the proper course is to lodge
a petition, stating shortly, but
succinctly, all the facts and material
circumstances, and praying the
granting of special leave.
Or a petition to the Secretary of
State for the Colonies, praying Her
Majesty to refer the same to Her
hIajesty’s Judicial Committee for
hearing, under the provisions of
3 85 4 )Vill. 4. c. 41. s. 4.
In re RAMSAY was such a case.
In Q. B. Quebec, 9 March 1867,
11 L. C. J. 158; in P. C. Nov. 26,
1870, 3 L. R. P. C. 427; 7 M00.
P. C. N. S 263. Drummond, J.,
ﬁned Ramsay, a counsel, for alleged
contempt of court. Ramsay brought
a writ of error to the Ct. of Q. B.,
but the court, Duval, C.J., Aylwin,
Badgley, and Drummond, J J .,
Mondelet, J ., dissenting, held that
no writ of error lay.
Sir ‘William Erle (late C.J. C.P.)
said: “Their Lordships have con-
sidered that, by the 3 & 4 Will. 4.
c. 41 s. 4, there may be a wide
power vested in the Judicial Com-
mittee of the Privy Council. That
section enacts that it shall be lawful
for the Crown to refer to the J udi-
cial Committee for hearing or con-
sideration any matter whatever
which Her Majesty may think ﬁt,
and such Committee shall thereupon
hear and consider the same, and
shall advise Her Majesty thereon.
That section has been acted on in
several cases, and this Committee
have had then to advise Her
Majesty as to what is the best course
to be pursued. It was the course
that was taken in Rainy 2). Justice
of Sierra Leone. I am directed
by their Lordships to ask you
whether, if you prefer that course,
you would be content without
pressing for a judgment on the
point respecting the writ of error
or the right of appeal from the
order made thereon; and on the
understanding that you assent to
that course the judgment of the
court will be, that in the circum-
stances disclosed by your petition,
if upon your application to the
Crown Her Majesty’s Secretary of
State thinks ﬁt to refer the matter
of the petition to the Judicial
Committee, we will hear it and
advise Her Majesty thereon, in the
same manner as was done in Rainy’s
case. This course will relieve us
from considering whether special
leave to appeal should be grantec .”
The course suggested was adopted.
RAINY o. JUSTICE or SIERRA
LEONE, in P. C. 7 Feb. 1852, and
July 2, 1853, 8 M00. P. C. 47. On
the former date were present Lord
Cranworth, Knight Bruce, L.J.,
Dr. Lushington, and Sir Edward
Ryan. Rainy was an advocate in
the courts of Sierra Leone. He
was ﬁned in the Recorder’s Court
for alleged contempt of court while
engaged in conducting acause. He
prayed for special leave to appeal.
Lord Cranworth said that the
Recorder’s Court was a Court of
Record, and, therefore, the orders
made by the court in the exercise
of its discretion, imposing these
ﬁnes, were conclusive, “ and we do
not consider there is any [remedy
by petition to the Judicial Com-
mittee to review the propriety of
such orders.” “ But in the circum-
stances disclosed by this petition, if
Her Maj esty’s Secretary of State
think ﬁt to refer the matter to us,
we will hear it, and advise Her
Majesty on the case.” Consequent-
ly Rainy presented a petition to
Her Majesty through the Colonial
Ofﬁce, setting forth the above facts,
and praying that such petition
B.N.A. ACT, s. 101.—-CRIMINAL APPEALS.
413
might be referred to the Judicial
Committee, and that the orders ob-
jected to, and the conduct of the
Chief Justice in the trial, might be
inquired into The matter was
specially referred by the Colonial
Ofﬁce for the consideration of the
Judicial Committee to advise the
Crown. No formal opinion was
delivered by the Committee, Dr.
Lushington stating it was not
customary until their report had
been approved by Her Majesty
[but see Smith '0. Justice of Sierra
Leone]. The report of the Com-
mittee recommended that the ﬁnes
be reduced.
In re MoDERMoTT, in P. C.
Nov. 3, 1866, 1 L. R. P. C. 260, was
a petition for leave to appeal from an
order of the S. C., British Guiana,
committing the publisher of a
local journal to prison for six
months for alleged contempt in
comments made on the administra-
tion of justice. Lord Westbury:
“Their Lordships regard this case
of great importance, and one that
may lead to important consequences.
On the one hand, it is essential to
preserve a court from all obstruction
to the course of justice; on the
other hand, it is very desirable that
there should be a check upon any
arbitrary exercise of the powers of
the court. But at present, having
regard to the distinction between
things done by practitioners of
colonial courts, and things done in
curia ; things done directly leading
to interference with the administra-
tion of justice, and things which do
not come within either of these
categories, their Lordships are dis-
posed to give leave to appeal, but
without prejudice to the question
whether there is a right of appeal
or not.” And by an order the pe-
titioner was allowed to put in his
appeal, subject to its competency
being questioned, and notice of the
appeal was to be given to the judges
of the S. C. of British Guiana.
The question of the competency of
the appeal was heard Dec. 1, 1868,
before Lord Chelmsford,
E. Vaughan Williams, 2 L. R.
P. C. 341; 38 L. J. P. 0.1;20
L. T. 47; 17 W’. R. 352. Held
leave to appeal ought not to have
been granted, their Lordships not
entering into the merits. Lord
Chelmsford said : —— .
“ Not a single case is to be found
where there has been a committal
by one of the colonial courts for
contempt, where it appeared clearly
upon the face of the order that the
party had committed a contempt,
that he had been duly summoned,
and that the punishment awarded
for the contempt was an appro-
priate one, in which this Committee
has ever entertained an appeal
against an order of this description.
The cases to which we have been
referred 'are all cases very special
in their circumstances, and in which
leave was given owing to some
peculiar objection to the committals
for contempt. In the case of Mag-
nus Smith v. The J ustices Sierra
Leone, 8 Jan. 1841, 3 M00. P. C.
361, there was an order of the Re-
corder’s Court of Sierra Leone,
disbarring and striking off from the
rolls a practitioner of that court for
alleged contumelious conduct. But,
in addition to this order, there was
a distinct and separate one, ordering
Mr. Smith to be ﬁned and impri-
soned for the same alleged con-
tempt. Now, the mode in which
the Committee dealt with these
orders brings out the distinction as
to the right to appeal in these cases
in the clearest manner. Mr. Smith’s
petition was presented through the
Secretary of State, and, after con-
siderable delay, it was, by an Order
in Council, referred to the Judicial
Committee. Their Lordships, in
that case, entertained the petition
against an order for disbarring
Mr. Smith and striking him off the
R011, because they held that that
was not an appropriate punishment
for contempt of court. They took
no notice of the order for imprison-
ment, which they seemed to consider
Wood, In re McDnn-
L.J., Sir James Colvile, and Sir HOTT-
414 B.N.A. AcT, s. 101.-DISBARRING BABRISTERS.
In re MCDER-
M O'I‘T.
In re DowNIE
and ARRINDELL.
In re \VALLACE.
In re PoLLARn.
to be in the same category with the
ﬁne; but with regard to the ﬁne
imposed by the court for contempt,
they held they had no jurisdiction
over it, and that they could not
entertain the appeal. In the case
of l)ownie and Arrindell, 21 June
1841, 3 M00. P. C. 414, there was
an application, ﬁrst of all, and
special leave granted to appeal
from two orders of the Supreme
Court of British Guiana suspend-
ing the petitioners from practice
for six months. The orders in
this case were reversed upon the
same ground as in the previous
case to which we have referred.
In Rainy’s case, 8 M00. P. C.
47, both the cases previously re-
ferred to were cited, and, therefore,
their Lordships had before them
the consideration of the whole
question as to the propriety of
entertaining appeals of this descrip-
tion. Under these circumstances,
their Lordships entertain no doubt
whatever as to the propriety of de-
ciding that in this case the right to
appeal ought not to have been
grantec .” -
See De Souza’s case, where
leave was granted in a contempt
case, post, p. 420.
The facts in Smith v. Justices
Sierra Leone are given in the pre-
vious case, but it may be observed
that was a petition presented
through the Secretary of State.
There were present Lord Brougham,
Erskine, J ., Sir Jas. Wigham,
V.C., and Dr. Lushington. Lord
Brougham, 8 Jan. 1841, 3 M00.
P. C. p. 367, delivered an opinion,
in which he said: Their Lord-
ships “ are clearly of opinion that
the order for striking off the rolls
was without any foundation what-
ever, ought not to have been made,
and must be rescinded. They are,
however, of opinion that they can
make no order respecting the ﬁne
imposed by the court below upon
Mr. Smith, but their Lordships are
clearly of opinion, on the whole of
the evidence in this cause, that
there is nothing whatever to affect,
in any respect, the character of
Mr. Smith.”
In re DowNlE and ARRINDELL.
That was acase of two appeals from
two orders of the S. C. of British
Guiana, suspending from practice for
six months two counsel. Leave to
appeal was granted. Lord Brougham
delivered the judgment of the Com-
mittee, holding the order of suspen-
sion ought not to have been made;
that it was not such a contempt as
to warrant the orders made upon
them, and Her Majesty would be
advised to reverse them.
And see Mathews 2*. Warner,
1798, 4 8t 5 Vesey, 186 and 23
respectively.
Appeal where the Wrong Punish-
ment is Inﬂicted.
In re WALLACE, Nov. 2, 1866,
1 L.R. BC. 283; 36L.J. P. C. 9
[present, Lord WVestbury, Sir J.
Colvile, and Sir E. V. Williams],
decided that where an attorney and
barrister acting not in his profes-
sional character, but as a private
suit-or, commits contempt of court,
the court [in this case the S. C. of
Nova Scotia, consisting of ﬁve
judges] ought not to inﬂict a pro-
fessional punishment of indeﬁnite
suspension for an act which, per se,
did not render him for that act, per
se, unﬁt to remain a practitioner.
The Nova Scotia judges followed
Lechmere Charlton’s case, 2 My.
& Cr. 316; but instead of inflict-
ing the ordinary and long-practised
[King 1). Clement, 4 B. & Ald.
218] kind of punishment, namely,
ﬁne and imprisonment, for 'Wallace’s
contempt, committed in his capacity
as a suitor, they substituted a differ-
ent kind of punishment from the
ordinary, namely, suspended him
from practice for an act which, per
se, did not render him improper to
remain as a practitioner of the
court.
In re POLLARD (a barrister and
Queen’s counsel at Hong Kong)
June 16, 1868 [present, Sir W. Erle,
B.N.A. ACT, s. 101.—DISR-E GARD or LEGAL PROCESS. 415
Wood, Selwyn, L.J J ., Sir J. Colvile,
and Sir E. Vaughan Williams],
2 L. R. P. C. 106; 5 M00.
P. C. N. S. 111. Pollard’s peti-
tion was forwarded by the Governor
to 'Her Majesty, who, under 3 & 4
Will. 4. c. 41. s. 4, referred the
matter to the Judicial Committee
for their opinion. The petition
asked the setting aside of an order
ﬁning, or in the alternative suspen-
sion for 14 days, the petitioner for
alleged contempt. The petitioner
had received no notice of the spe-
ciﬁc oﬁence charged, nor had any
opportunity of protesting been
given to him. The alleged ' con-
tempt was in disrespectfully ad-
dressing the Chief Justice (Smale)
while conducting a cause. Their
Lordships in their report to Her
Majesty, 19 June 1866, advised
the remission of the ﬁne of $200
on the ground (1) that in their
judgment no person should be
punished for contempt of court,
which is a criminal offence, unless
the speciﬁc offence charged against
him be distinctly stated, and an
opportunity of answering it be
given to him, and that in the present
case their Lordships were not satis-
ﬁed that a distinct charge of the
offence was stated, with an oﬁer
to hear the answer thereto, before
sentence was passed; that it ap-
peared that Mr. Pollard has received
one sentence for six several offen-
ces, and that, in the statement of
those alleged offences, their Lord-
ships were not satisﬁed that each of
the six amounted to a contempt of
court, or was legally an offence.
In KoPs v. THE QUEEN, June 9,
[1894] A. C. 650; 70 L. T. 890.
An appeal for special leave to
appeal in format pauperz's from
S. C. N. S. W. from a conviction,
on the ground that the chairman
at Quarter Sessions commented to
the jury on the fact that the peti-
tioner did not, being an admissible
witness, deny on oath certain alle-
gations. Refused. Lord Herschell,
L.C., in delivering judgment, said
[there being also present Lord
Hobhouse, Lord Macnaghten,
Lord Morris, and Sir R. Couch] :
“In the case of ex parte Deem-
ing, the then Lord Chancellor
[Lord I-Ialsbury], delivering the
opinion of the Board, quoted
from the judgment in Dillet’s case,
12 App. Cas. p. 467 [a judg-
ment delivered by Lord Watson],
the following passage, of which
their Lordships entirely approve.
‘ The rule has been repeatedly laid
down, and has been invariably fol-
lowed, that Her Majesty will not
review or interfere with the course
of criminal proceedings, unless it is
shown that, by a disregard of the
forms of legal process, or by some
violation of the principles of natural
justice, or otherwise, substantial
and grave injustice has been done.’ ”
In re DILLET’s CASE, March 19,
1887, Wheeler’s P. C. Law, 312,
367; 12 App. Cas. 459; 56 L. T.
615, leave was allowed, 20 March
1886, by Lord Blackburn, Lord
Monkswell, Lord Hobhouse, and Sir
R. Couch. Dillet was a barrister
practising in British Honduras. He
appealed against a verdict of a jury
ﬁnding him guilty of perjury, and
also against an order of the Chief
Justice directing the appellant to
be struck off the roll.
By Order in Council, 12 Aug.
1885, Dillet’s petition and extracts
were referred to the Chief Justice
to make such observations he
thought ﬁt, and to be at liberty to
appear. The Chief Justice for-
warded his observations to the
Registrar, but did not appear.
These observations were submitted
to the Board, and, upon their report,
by Order in Council, dated 3 April
1886, the appellant was allowed to
prosecute his appeal. In allowing
the appeal, Lord Blackburn said:
“In Falkland Islands Co. v. The
Queen, 24 June 1863, 1 M00. P.
C. N. S. p. 312, it is said by Lord
Kingsdown [there also being pre-
sent Knight Bruce and Turner,
L.JJ., and Sir E. Ryan], ‘It may
Kors 0. Tan.
QUEEN.
In re DILLET’S
CASE.
416
B.N.A. ACT, s. 101.—NEW TRIAL IN FELONY.
In re DILLn'r’s
Cass.
DEEMING’S
Case.
be assumed the Queen has autho-
rity, by virtue of her prerogative,
to review the decisions of all
colonial courts, whether the pro-
ceedings be of a civil or criminal
character, unless Her Majesty has
parted with such authority. But
the inconvenience of entertaining
such appeals in cases of a strictly
criminal nature is so great, the ob-
struction it would offer to the ad-
ministration of justice in the colonies
is so obvious, that it is very rarely
that applications to this Board,
similar to the present, have been
attended with success.’ In this
statement of the general practice
their Lordships agree . . . . But
they think, after considering the
observations of the Chief Justice,
Mr. Dillet ought to be permitted
on appeal to show, if he can, that
on the grounds stated in his thir-
teenth reason the conviction was
obtained in amanner so unsatisfac-
tory that the conviction alone ought
not to be conclusive as a ground for
striking him off the rolls.” It ap-
peared the issue the jury had to try
was whether the accused was under
the inﬂuence of liquor on the occa-
sion libelled, and whether he knew
and believed that he was so at the
time when he made the afﬁdavit to
the contrary. Their Lordships
found that the remarks made by
the Chief Justice to the jury
grossly misrepresented the real
issue, and was most unfair to the
accused— [the Chief Justice told the
jury if they acquitted Dillet they
would brand the Attorney-General
of the colony, a magistrate, and
others, as perjurors, and, without
being supported, made state-
ments of a visit of the accused
to his, the Chief J ustice’s, private
house]——and that a conviction ob-
tained by such unworthy means
could not be permitted to stand.
And their Lordships directed a copy
of their judgment to be forwarded
to one of Her Majesty’s Secretaries
of State. On the hearing of the ap-
peal, Lord Watson gave utterance to
the passage given in Kop’s case, that
“ Where substantial and grave in-
justice has been done, there is a
reason for interfering with the
course of criminal procedure.”
In DEEMnve’s CASE, [1892] A.C.
422, leave was refused. Present,
Lord Halsbury, L.C., Lord Her-
schell, Lord Watson, Lord Mac-
naghten, Lord Morris, Lord
Hannen, Lord Shand, and Sir
Richard Couch. The petitioner had
been sentenced to death in Mel-
bourne for the murder of Emily
Mather, at Windsor, Victoria. It
was alleged the prisoner was insane,
that no time had been given for a
fair trial, and that medical evidence
of insanity had been received since
the trial. Leave refused.
Lord H alsbury, L.C., said: “ There
is nothing suggested or surmised, and
certainly nothing actually veriﬁed,
by aﬁidavit of any person familiar
with the facts themselves—because
the distance from the colony would,
no doubt, render that difficult to
obtain—which brings it near any
of the cases in which this Board
has thought it right to interfere
with the administration of criminal
justice,” and it was impossible
that the application could be suc-
cessful. If it were, it would be
easy for anyone in a distant colony
to stay execution by simply send-
ing over such material as supplied
in this case. In Riel’s case [10 App.
Cas. 675, and post] there was a re-
spite and postponement until the
papers arrived.
Leave to Appeal in a Divorce
Action—Allowed in Le Meunier '0.
Le Meunier, 17 March, [1894] A.
C. 283 [present, Lord Watson, Lord
Macnaghten, and Sir R. Couch].
The case was from S. C. Ceylon.
The appealable amount ﬁxed by the
Charter of Justice is Rs. 5,000, but
by the Code Civil Procedure, 1889,
a certiﬁcate of ﬁtness of appeal, it
would appear, might be granted
irrespective of the money value.
The S. C. had refused leave to
appeal from its decision reversing
the district court of Matara, and
B.N.A. AOT, S. lOl.—BIGA1\1Y & U. s. DIVORCE. 4117
dismissing the petitioner’s action,
which was for a divorce by reason
of his wife’s alleged adultery. He
argued that freedom from liability
to support a wife must be of more
value than the appealable amount.
Special leave granted.
In Ex parte MACREA, May 13,
[1893] A. C. 346; 69 L. T. 734,
the petitioner was convicted by a
jury, under the Indian Penal Code,
of an attempt to cheat. Held no
case for special leave. Lord Her-
schell, L.C. [there being also present
Lord ‘Vatson, Lord Morris, Sir R.
Couch, and the Hon. Geo. Denman]
said: “ There are, no doubt, very
special and exceptional circum-
stances in which leave to appeal is
granted in criminal cases; but it
would be contrary to the practice of
this Board, and very mischievous,
if any countenance were given to
the View that an appeal would be
allowed in every case in which it
could be shown that the learned
judge had misdirected the jury.”
\Vhere there is no jurisdiction
to try the petitioner for the'alleged
offence, special leave will be granted.
Macleod v. Att.-Gren. of New
South ‘Vales, July 23, [1891] A.
C. 455; 60 L. J. P. C. 55; 65
L. T. 321 [present, Lord Halsbury,
L.C., Lord Watson, Lord Hob--
house, Lord Macnaghten, and Sir
It. Couch].
In that case Macleod married,
in the colony of New South
\Vales, one M. M., and in her
lifetime he was married at St.
Louis, in the United States, to
M. E. C. He was afterwards tried
and convicted in the colony of New
South Wales for bigamy, under the
54th section of the Criminal Law
Amendment Act, 1883, 46 Vict.
(N. S. No. 17 :——“ Whosoever
being married marries another
person during the life of the
former husband or wife, where-
soever such second marriage
takes place, shall be liable to
penal servitude for seven years.”
There was an allegation that the
S 2340.
ﬁrst marriage had been dissolved Ea‘ Pm‘ie
in the United States.
Halsbury, L.C., said: “‘Whereso-
ever ’ may be read, ‘ wheresoever
in this colony the offence is com-
mitted. . . Upon the face of this
record the offence is charged to have
been committed in Missouri, in the
United States, and it therefore ap-
pears to their Lordships that it is
manifestly shown, beyond all possi-
bility of doubt, that the offence
charged was an offence which, if
committed at all, was committed in
another country beyond the juris-
diction of the colony of New South
'Wales. The result must be that
there is no jurisdiction to try the
alleged offender for this offence, and
that this conviction should be set
aside.” His Lordship then said:
“ If the legislature had intended the
wider construction to be applied. to
the statute, it would have been be-
yond the jurisdiction of the colony
to enact such a law. Their juris-
diction is conﬁned within their
own territories. ‘ Extra territorium
jus dicenti impune non paretur ’
would be applicable to such a case.
The jurisdiction over the crime he-
longs to the country where the
crime is committed, and, except over
her own subjects, Her Majesty and
the Imperial Legislature have no
power whatever.”
In LEVIEN v. REG., July 8, 1867,
1 L. R. P. C. 536; 36 L. J. P. C.
62; 16 W. R. 159, there was a
petition for special leave to appeal
from a conviction of a Jamaica
court, whereby the appellant was
sentenced to imprisonment for
publishing a seditious libel. Leave
was granted, without prejudice to
any objection which might be taken
thereafter on the part of the Crown
to the jurisdiction of Her Majesty
in Council in the matter. At the
time of the petition, which was
granted by Lord Wensleydale, Sir
J. T. Coleridge, and Sir E. Vaughan
Williams, 6 July 1866, the
prisoner was in prison under the
sentence of which he complained.
D1)
Lord MACREA.
LEVIEN v. REG.
418 B.N.A ACT, S. 101.--RESULTLESS LITIGATION.
LEVIEN 11. Bee.
REG. v.
MURPHY.
Since then he had been released
upon his own memorial, and had
received all the substantial beneﬁts
of a. free pardon. Stopping the
case, Lord Cairns said: “ Now,
having regard to the principles upon
which they have always acted when
leave to appeal in a crimimal case
has been prayed for, principles
which were fully recognised in the
case of the Falkland Islands Co. 'v.
The Queen, 1 M00. P, C. N. S.
299, their Lordships have no
hesitation in saying that if at
the time when the petition of the
appellant for leave to appeal was
heard the facts which now appear
could have been made known to
their Lordships, the leave to appeal,
which was given, would not have
been granted.” Appeal dismissed;
no good purpose could be answered
by entertaining it further.
“There the question was one as
to the right of challenge of the jury,
special leave to appeal was granted.
Levinger 1;. Reg. (from S. C.
Victoria), July 25, 1870; 3 L. R.
P. C. 282; 39 L. J. P. C. 49;
23 L. T. 362 [present, Lord
Cairns, Sir J. Colvile, Sir Joseph
Napier]. Or imprisonment of a
person on the ground of alleged in-
sanity, Sinclair r. Broughton,
June 23, 1882; WTheeler’s P. C.
Law, 181.
In REG. 7:. MURPnY, Feb. 6,
1868, 2 L. R. P. C. 35; 38 L. J.
P. C. 53; 21 L. T. 598. In New
South ‘Vales a verdict of guilty for
murder had been set aside by the
S. C. N. S. W., and a vem're de
now for a new trial granted.
Special leave to appeal was granted
by Lord Westbury, Sir J. Colvile,
and Sir R. Kindersley, upon‘ the
same conditions as in Reg. 0.
Bertrand, June 28, 1867, 1 L. R. P.
C. 520; 36L.J. P. C. 51 ; 16L.T.
752, which were that the prisoner re-
main in prison until he be delivered
by due course of law. That was a
case in which, in the ﬁrst trial of
the respondent Bertrand in New
South Wales for alleged murder,
the jury disagreed. On the second
trial the Chief Justice, instead of
having each witness examined again
at length, react over to each one his
evidence in the former trial, and
asked him if it were true. The
Chief Justice also allowed the claim
of the Crown to reply. The re-
spondent was found guilty. On
appeal to the S. C. N. S. W. the
court ordered a new trial. The
Att.-Gen. of New South Wales
applied for leave to appeal, which
was heard by Lord Wensleydale,
Sir. J. T. Coleridge, and Sir E.
Vaughan Williams, and allowed.
At the hearing, the above Board
was joined by Sir W. Erle, Kelly,
CB, and Sir R. T. Kindersley,
(the present Lord Chancellor, Lord
Halsbury, and Sir E. Clarke being
counsel for the respondent).
Sir J. T. Coleridge, having stated
the above facts, said: “ Upon this
statement it was contended, ﬁrst, on
behalf of the respondent, that their
Lordships ought not to entertain
the appeal; but they do not accede
to this. Upon principle, and on refer-
ence to‘ the decisions of this Com-
mittee, it seems undeniable that in
all cases, criminal as well as civil,
arising in places from which an
appeal would lie, and where, either
by the terms of a charter or statute,
the authority has not been parted
with, it is the inherent prerogative
right, and, on all proper occasions,
the duty, of the Queen in Council to
exercise an appellate jurisdiction,
with a view not only to ensure so
far as may be the due administration
of justice in the individual case, but
also to preserve the due course of
procedure generally. The interest
of the Crown, duly considered, is at
least as great in these respects in
criminal as in civil cases ; but the
exercise of this prerogative is to be
regulated by a consideration of cir-
cumstances and consequences; and
interference by Her Majesty in
criminal cases is likely in so many
instances to lead to mischief and
inconvenience, that in them the
Crown will be very slow to enter-
B.N.A. ACT, S. 101.—PREROGATIVE & CBIM. APP. 419
tain an appeal by its officers on be-
half of itself or by individuals.
The instances of such appeals being
entertained are therefore very rare.
The opinions stated by this Com-
mittee in the case of In re Ames,
14 May 1841, 3 M00. P. C. 409;
Reg. "0. Joykissen Mookerjee,
16 July 1862, 1 M00. P. C. N. S.
272; and the Falkland Islands Co.
v. The Queen, 13 June 1863, 1
M00. P. C. N. S. 299, establish
these propositions. The result
is that any application to be al-
lowed to appeal in a criminal case
comes to this Committee labouring
under a great preliminary difficulty
—-a diﬁ’iculty not always overcome
by the mere suggestion of hardship
in the circumstances of the case,
yet the difﬁculty is not invincible
. . it may be safely said, that
when the suggestions, if true, raise
questions of great and general im-
portance, and likely to occur often,
and also where, if true, they show
the due and orderly administration
of the law interrupted, or diverted
,into a new course, which might
create a precedent for the future;
and also where there is no other
means of preventing these conse-
quences, then it will be proper for
this Committee to entertain an ap-
peal, if referred to it for its decision.
The present case appears to fall
within this category, on the allega-
tions of both parties; on the one
hand, it is clear that the court be-
low has directed a new trial in a
case of felony ; it is alleged no such
trial can be had according to the
uniform practice in our criminal
law; if this allegation be correct, it
is obvious that an innovation has
been made without authority, one
of great importance, and establish-
ing a precedent which may be ex-
pected to be frequently acted on.”
The cases cited above were In re
Arms, 14 May 1841, 3 M00. P. C.
409. There Ames and others were
ﬁned for illegally taking oysters.
They petitioned eaxparte for special
leave to appeal from the Royal Courts
of Jersey affirming the ﬁne. Special
leave was granted by Queen’s
Order, 18 July 1838. In 1841 the
Att.-Gen. of Jersey petitioned that
the Queen’s Order allowing the
appeal should be rescinded, as ob-
tained by surprise and against the
law of Jersey, which allowed no
appeal from the Royal Court of
Jersey in criminal cases. Appli-
cation to dismiss the appeal allowed,
Baron Parke saying: “ WVe are dis-
posed to say that we ought not to
have recommended Her Majesty to
have allowed the appeal, but we
are not disposed to say that we
have not the power so to have done,
as Her Majesty is the head of
justice, and we are sitting here, not
merely as a judicial body, but as
Privy Councillors.”
REG. 1). JOYKISSEN MOOKERJEE,
16 July 1862, 1 M00. P. C. N. S.
272, was a case of conviction for for-
gery by one of the native criminal
courts of India. Dr. Lushington,
in refusing leave, said it ap-
peared injustice may have been
done, but the consequences of ad-
mitting an appeal in such a case
were so entirely destructive of the
administration of all criminal juris-
prudence, that they formed their
judgment to disallow the appeal;
but they did not doubt justice
would be done, as they suggested
that an application should be made
to the constituted authorities who
have the power to afford a remedy.
In THE FALKLAND ISLANDS Co.
v. THE QUEEN, 13 June 1863,
1 M00. P. C. N. S. 299, leave
was granted because the questions
raised, although in form criminal,
were in substance rather of a civil
nature, namely, the right to kill
wild animals, a question of property
involving the rights of the Crown
and its grantees throughout the
Falkland Islands. Lord Kings-
down, after stating the sentence
given above, page 416, that Her
Majesty has authority by virtue
of her prerogative to review the
In re AMES.
REG. '0. J or-
KISSEN Moo-
KERJEE.
FALKLAND Is-
LANDS Co. v.
THE QUEEN,
DB2
420
B.N.A. ACT, s. 101—ENGLISH BARRISTERS.
FALKLAND Is-_
LANDS Co. v.
THE QUEEN.
REG. 2*. Coo'rE.
LOUIS m:
Souza.
MACFARLANE 2'.
LEcLAmE.
decision of all colonial courts,
whether the proceedings be of a
civil or criminal character, unless
Her Majesty has parted with such
authority, said : “ It is obvious that
this question is of too great import-
ance to make it ﬁt that it should be
ﬁnally concluded by a summary
conviction in a police court.
See also Esnouf o. Att.-Gen. of
Jersey, 3 March 1883, 8 App. Cas.
304; 52 L. J. P. C. 26; and
‘Vheeler’s P. C. Law, 201.
In REG. v. 000m, from a judg-
ment of the Q. B., Quebec, on a
case reserved under C. S. L. C.
c. 77. ss. 57, 58, on a trial of
Coote for arson. Coote was found
guilty of arson. The case was re-
served on the admissibility of evi-
dence. The Q.B. Quebec, 15 March
1872, held the evidence did not
justify the verdict, quashed the
conviction, ordered a new trial, and
refused leave to appeal. The
Privy Council granted leave 10
May 1872; and 18 March 1873,
4 L. R. P. C. 599; 42 L. J. P. C.
45; 29 L. T. 111; 9 llIOO. P. (l.
N. S. 463, reversed the decision of
the Q. B., and directed the proper
sentence to be passed.
In the case of LOUIS DE Souza,
Dec. 1, 1888, Wheeler’s P. C.
Law, 529, special leave to appeal
was allowed from an order of the
British Guiana Court, imprisoning
the petitioner, a barrister, ﬁning
him, and depriving him from prac-
tising for a year for alleged con-
tempt in certain letters to a news-
paper. But before it was heard
De Souza died.
De Souza, an English barrister,
4 July 1885, was refused leave to
appeal from a decision 14 Feb.
1885, of Cameron, C.J., Galt, &
Rose, J.J., 9 X., 39 L., Ontario
Judges, O. R., who refused to allow
him to practise as an English
barrister in Ontario, on the ground
that he was not a member of the
Law Society of Upper Canada,
which had been given the sole
power to admit to practice R. S. C.
(1877), c. 138. s. 37.
[But see the case of an English
doctor practising in Canada, Reg.
r. College of Physicians, 44 U. C. Q.
B. 564; and note, sec. 93.] See also
Downie o. Arrindell, ante, p. 414,
and In re Justices of C. P. at An-
tigua, 6 April 1829, 1 Knapp, 267.
In the latter case the petitioner, both
an attorney and advocate, had been
disbarred for various acts of pro-
fessional and general misconduct in
Antigua, and he prayed the Privy
Council to restore him to the bar.
Lord Wynford, after saying the
English courts were relieved of this
unpleasant duty, said: “ Now advo-
cates and attorneys have always
been admitted in the colonial courts
by the judges, and the judges
only. The power of suspending
from practice must, we think, be
incidental to that of admitting to
practice, as is the case in England
with regard to attorneys. In
a case [in which the Recorder’s
Court had suspended the whole bar
for six months from practice] which
came before us a short time ago
from Bombay, none of the members
of this Board doubted that the
Supreme Court there had autho-
rity to prevent English barris-
ters practising before them. The
question was whether their autho-
rity had been properly exercised.
Whilst advocates in the colonies
have an appeal to his Majesty,
the power to remove them from
practice can never be abused.”]
Appealable Value—In Mac-
FARLANE v. LECLAIRE, in P. C.
8 Feb. 1862, 15 M00. RC. 181, 187;
10 W. R. 324, the question arose
as to how the appealable value is
to be determined. L. brought an
action against D. in the Superior
Court, Montreal, to recover the
amount of certain promissory
notes, with interest, amounting
in the whole to less than £500
[the appealable amount under
34 Geo. 3. c. 6.] L. issued his
writ called saisie arret, attach-
B.N.A. ACT, s. IOL+APPEAL VALUE.
421
ment before judgment, on the goods
of D. in the hands of M., and
obtained judgment thereon against
the goods of M., which were
of the value of £1,642. M.
said the goods were his, through
an assignment from one Provost.
Leave to appeal was granted to M.
by the Q. B. Quebec. On petition
to rescind the leave to appeal Lord
Chelmsford said: “ In determining
the question of the value of the
matter in dispute, upon which the
right to appeal depends, their Lord-
ships consider the correct course
to adopt is to look at the judg-
ment as it affects the interests of
the parties who are prejudiced
by it, and who seek to relieve
themselves of it by an appeal. If
their liability upon the judgment
is of an amount sufficient to entitle
them to appeal, they cannot be de-
prived of their right because the
matter in dispute happens not to
be of equal value to both parties;
and therefore, if the judgment had
been in their favour, their adver-
sary might possibly have had no
power to question it by an appeal.
In this case the effect of the judg-
ment was to place in jeopardy the
whole of the goods contained in the
assignment from Provost, for which
a sum of £1,642 currency had been
paid” [see p. 432].
That case also decided that Where
the judgment appealed from is
interlocutory in form merely, but
ﬁnal in its effect as regards the
appellant, it must be treated as a
ﬁnal judgment. The goods which
the appellants claimed as their
own were “ﬁnally and conclu-
sively ﬁxed by the judgment to be
the property of the original debtor,
and must be applied in satisfaction
of his debts, and there was no mode
by which the appellant could be
relieved from that judgment except
by an appeal.”
SAUVAGEAU v. GAUTHIER, Q. B.
Quebec, 18 March 1871, in P. C.
May 5, 1874, 5 L. R. P. C. 494;
30 L. T. 510; 22 W. R. 667. The
debt in question was payable by Sanmenav v.
I c ‘1 ‘
instalments, and It was argued (HUMMER-
that it was a “ matter in which the
rights in future of” the parties
might be affected, and, therefore,
under art. 1178 of the Code of Pro-
cedure [see above, p. 3.97], there was
a right of appeal to Her Majesty
in her Privy Council. The Q. B.
Quebec had granted, 19 June 1871,
leave to appeal to the Judicial
Committee.
On the appeal coming on to be
heard the respondent raised the pre-
liminary point that the matter in dis
pute was below the appealable value
of £500, and neither did the question
come within the exceptions which
allowed an appeal for less value.
Sir J. Colvile [there being also
present Sir B. Peacock, Sir M.
Smith, and Sir R. Collier] stated
the facts as follows: It appears
that one Martel was indebted to
the insolvent Senecal in a certain
sum of money [considerable arrears
of a quit rent of $11.28] for which
a rent charge [of #5456] had been
commuted. That sum of money
[namely, the $456] was payable
by instalments, and it was also
secured by hypothecation upon the
land upon which the rent had
originally been charged. The in—
solvent Senecal, a considerable time
before his insolvency, assigned this,
with other choses in action, to
Gauthier, the respondent, for value,
but notice or the assignment was
not given to Martel until Seneeal
was in insolvent circumstances [in
fact, notice was not given within
30 days of the date of the assign-
ment to the ofﬁcial receiver, Sau-
vageau]. Gauthier sued Martel,
the original debtor, for certain
instalments of that sum ; the whole
value of the particular debt so
assigned being considerably below
the appealable amount of £500.
In that state of things the appel-
lant, who was the general assignee
of the insolvent estate of Seneca],
intervened, and there remained no
question as to the liability of the
original debtor; but the simple
422 B.N.A. ACT, s. 101.-—VALUE OF INSTALMENTS.
SAUvAeEAU v.
GAUTIIIER.
question tried in the suit, and
which is now brought before their
Lordships on appeal, was whether
the particular assignee could claim
the sum sued for, or whether it had
passed by the general assignment
of the insolvent’s effects to his
general assignee. The solution of
that question, of course, depends on
the further question whether ‘ sig-
niﬁcation ’ or notice was necessary
to complete the title of the particu-
lar assignee, and whether that
notice had been given in proper
time. His Lordship, continuing,
said : “ It has been argued that in-
asmuch as the particular debt which
was in question in this suit was
payable by instalments, the title to
it was a matter in which the rights
in future of the parties might be
affected. But their Lordships
do not think that that is the
true construction of the clause.
The matter in question was the
whole debt,” and the “ mere cir-
cumstances of this debt being pay-
able by instalments would not
make the case appealable to Her
Majesty in Council if it were not
otherwise appealable. It was
further suggested the same ques-
tion might arise in respect of the
other assets comprised in the as-
signments to Gauthier, and that
the decision in this case would
govern the rights of the parties as
to all those assets. But their Lord-
ships have not the means of know-
ing whether the title to those other
choses in action would stand upon
precisely the same ground as the
title to that in question in this
suit; some of them may have been
realised, and as to some of them
notice may have been given long
before the insolvency. Their
Lordships cannot assume that the
facts touching these other debts
were before the judges in Canada;
and, even if they were, their Lord-
ships, considering the mode in
which this litigation arose, namely,
by the intervention of the general
assignee in a suit brought by the
particular assignee to realise a
small sum as against one of those
debtors, and not in a suit brought
by the general assignee to impeach
the whole transaction, are not
satisﬁed that it was a case in which
the Court of Queen’s Bench would
have jurisdiction to allow the
appeal. The power of the Court
of Queen’s Bench to allow an
appeal is clearly limited by the
Code; it has no power, upon
special grounds not provided for
by the Code, to grant special leave
to appeal. The question, there-
fore, is, what ought now to be
done. Now, their Lordships are of
opinion this case very much rosem—
bles the case of Retemeyer 1:.
Obermuller, Feb. 8, 1838, 2 M00.
P. C. 93, in which it appeared
that the appeal had been irregu-
larly allowed in the colony, the
security not having been completed
within the proper time. In that
case Lord Brougham, having stated
that the irregularity was fatal to
the appeal as it stood, said this:
‘ The respondent has, however,
appeared to the appeal here, and
lodged his case. It is clear, there-
fore, that the appellant must have
been led to suppose that any objec-
tion on the score of irregularity
was waived; and though their
Lordships are of opinion that the
order made by the court below, al-
lowing the appeal, was, for want of
the security being completed, irre-
gular, and could not be cured by any
waiver or implied consent on the part
of the respondent, yet they think it
would be a ﬁt case to recommend
the allowance of the appeal upon a
petition presented for that purpose.
The result will be that the case
must stand over for such applica-
tion.’ In that case it was held
that the irregularity was fatal to
the appeal as it stood; and the
Committee though it thought that
there might be ground for allow-
ing a special appeal, directed the
case to stand over in order that
there should be an application for
special leave to appeal. It also
pointed out that the respondent, in
B.N.A. ACT, 5. lOl.-—IMPROPER LEAVE.
423
allowing the case to be lodged, might
have induced the appellant to sup-
pose that the objection on the score
of irregularity was waived. And
upon this last point their Lord-
ships cannot but observe that the
proper course, when such a ques_
tion as this arises, ‘is to come here
by petition as early as possible,
and before the cases are lodged,
and the expense of preparing those
cases is incurred, in order to bring
the point before their Lordships,
and to get the appeal dismissed.
It is then open to their Lordships
to recommend Her Majesty either
to dismiss the appeal, in which
case the parties are not put to the
expense of preparing for the hear-
ing; or to grant special leave to
appeal. Their Lordships, if they
were to dismiss this appeal upon
the objection now taken for the
ﬁrst time, would be disposed to
dismiss it without subjecting the
appellant to the costs, which have
been so unnecessarily incurred.
On the other hand, they are not
prepared to say that if a petition
had been presented to them for
special leave to appeal, there may
not be circumstances in this case
which would have induced them to
recommend Her Majesty to grant
such leave to appeal. They by no
means invite such an application,
but leave it for the consideration of
the appellant whether he would
prefer to have the appeal now dis-
missed without costs, or whether
he would wish the case to stand
over, in order that he may present
a petition for special leave to appeal
upon such grounds as he thinks
might induce their Lordships to
recommend Her Majesty to give
that leave.
“ It is also to be considered that
in those cases in which an appeal
having been irregularly allowed in
the colony, special leave to appeal
has been granted here, their Lord-
ships have always. required fresh
security for costs to be given.”
Time was given until the 15th
June to lodge a petition for special
leave; if the petition was not lodged
by that date, the appeal to stand
dismissed, without costs.
In LAMBKIN r. SOUTH Easr
RAILWAY Co., in an application
made 12 Dec. 1877 to the Privy
Council [subsequent proceedings
reported Feb. 3, 1880, 5 App.
Cas. 352; 28 \V. R. 837] for
special leave to appeal, it appeared
that Lambkin obtained, 13 Sept.
1875, a verdict [from Mondeley,
J ., and a special jury] for $7,000
against the South Eastern Rail-
way Co. of Canada. The ground
of the decision was pure negligence
on the part of the defendants’ ser-
vants in not taking instant pre-
cautions when there was warning
of a storm.
The Court of Review [Monde-
ley, Torrance, and Beaudry, J J.],
entered judgment for the plaintiff,
and rejected the motion for a new
trial. 16 March 1877, Q. B. Que-
bec [Monk, Ramsay, Sanborn, and
Tessier, JJ set aside the verdict
and allowed a new trial, on the
sole ground of excessive damages.
On 15 June 1877, the Q. B.
Quebec [present the last-named
judges and Dorion, C.J.] refused
leave to appeal to the Privy Council
on the ground that it was an inter-
locutory judgment. 10 Dec. 187 7,
the Judicial Committee reported
their opinion that the appel-
lant ought to have special leave
to enter and prosecute his ap-
peal against the order granting
the new trial, upon depositing £300
as security for costs. The record
of the case does not contain the
reasons for allowing the appeal;
but Doutre, Q.C., who was in the
case, says [Doutre’s Constitution,
p. 344]: It was on the ground
(1) That a judgment setting aside
a verdict is not interlocutory and
(2) If the verdict of the jury
had been sustained, the defendant
had a right to appeal, and there--
fore if the verdict should beset
aside the plaintiff must have the
same right. In the sequel to the
Sumerian .v.-~
GAUTnIER.
LAMBKIN 'v.
SoUTn Easr
RAILWAY Co.
424
B.N.A. ACT, s. 101.--TEST or VALUE.
LAMBKIN v.
SoU'rn EAs'r
RAILWAY Co.
CossE'rrE v.
DUN.
BROWN v.
McLAUcnAN.
Ko KHINE v.
SNADDEN.
case their Lordships [Sir James
Colvile, Sir Barnes Peacock, Sir
Montague E. Smith, and Sir
Robert Collier] reversed the deci-
sion of the Q. B. Quebec.
In CossETTE Iv. DUN, Dec. 9,
1890, 18 S. C. R. 222, it was held
that the ﬁrst court’s award was the
test of appealable amount. There
the plaintiff claimed $10,000 against
amercantile agency for slander. The
Superior Court, Montreal, gave
judgment for $2,000; an appeal to
the B. reduced the damages to
3500. Held there was a right
of appeal to the Superior Court.
Sir W. Ritchie, C.J., said:
“The question before us is not
as to the $1,500, but simply
whether the plaintiff has a right to
have the judgment obtained by him
in the Superior Court for 82,000
restored. Therefore the question
we have to determine is: Did the
Court of Q. B. do right in inter-
fering with the judgment of the
Superior Court, which awarded
$2,000. And therefore the right of
the plaintiﬁ to hold his judgment
in the Superior Court for $2,000
was the question before the Court
of Q. B., and- is the matter now
in controversy before us in this
court. Under these circumstances
the case is clearly appealable.” See
also Prannath Roy Chowdry o.
Ranee Surnomoyee, 7 Dec. 1859,
7 M00. Ind. App. 553.
Interest on damages was allow-
ed to be added to the damages, thus
raising the appealable value.
Thus in New South Wales in-
terest on damages is given by the
Act 24 Vict. No. 8., therefore ap-
peal allowed. Bank of New South
Wales v. Owston, 18 Feb. 1879,
4 App. Cas. 270; 48 L. J. P.
C. 25. See that case also, that
costs cannot be added in estimating
the appealable value.
In Ko KHINE o. SNADDEN,
an Indian appeal, Feb. 6, 1868,
2 L. R. P. C. 50, special leave was
granted on the ground that al'
though the amount involved in this
one case was below the requisite
amount, there were other ac-
tions, involving the same evidence,
and concluded by the same judg-
ment, which, all added together,
raised the amount far above the
appealable value. See also Baboo
Gopal Lall Thakoor o. T eluk
Chunder Rai, 7 M00. Ind. App.
548. But where there are two
distinct causes and two separate
judgments they cannot be consoli-
dated for the purpose of raising
the appealable amount. Moofti
Mohummud Ubdoollah c. Baboo
blootechund, 10 Feb. 1837, 1 M00.
Ind. App. 363.
In BROWN '0. MCLAUGHAN,
Dec. 12, 1870, 3 L. R. P. C. 458;
'7 M00. P. C. N. S. 306, the
amount was below the appealable
value, but leave was given. Sir
J. Colvile said: “ Their Lordships
are disposed to grant leave to ap-
peal, on the ground that it is a
question on the construction of an
Act, and one of general interest in
South Australia. It being under-
stood that the appeal is to be con-
ﬁned to the merits of the decision,
namely, whether the South Aus-
tralian Fencing Act applies to
fences erected by holders of leases
under the Crown for pastoral pur-
poses.”
Also where the question is of
general importance to insurance
companies, leave has been allowed.
Sun Fire Oﬁice 0. Hart, Feb. 16,
1889, 14 App. Cas. 98, p. 105;
58 L. J. P. C. 69.
In SANTACANA c. ARDEVOL, May
8, 1830, 1 Knapp, 269, an ap-
peal from Gibraltar, Leach, M.R.,
said: “This Board never heard of '
an appeal being instituted on the
ground that the witnesses had been
discredited. The court below were
aware of the character of these
witnesses; and besides the know-
ledge of their character, had the
advantage of seeing their de-
meanour and behaviour, of which
we on written evidence have no
B.N.A. ACT, 101.——JUDGE OF EVIDENCE.
425
power of judging. We feel it our
duty, therefore, to decide this case
on the general principle, that no
appeal will lie from the judgment
of a court below on the ground
that the court discredited the wit~
nesses produced to them by either
party.” But in Canepa v. Larios,
Feb. 17, 1834, 2 Knapp, 276,
Lord \Vynford said the rule in
Santacana v. Ardevol “ should be
somewhat qualiﬁed, or it would
prevent us from protecting colo—
nists against the effect of local
prejudices.” . . . “ In all
cases in which the court sees
no cogent reason for saying that
the court in whose presence the
evidence was given have taken a
wrong view of it, the safest course
is to adhere to its determination.
But a case may be so unsatisfactory
as to require further explanation;
or so improbable as to be manifestly
unworthy of credit; or may ex-
hibit circumstances which should
convince any impartial or udicious
mind of its truth. In such cases
the Court of Appeal should not be
concluded by the judgment of the
court below, but exercise its power
of sending a case back for further
inquiry, with such directions as it
may think proper to give.”
This would be the course
followed in the House of Lords.
Or it might be sent back to
take an account. Even if a new
point of law was raised in the
Judicial Committee, say depend-
ing on French law and from
Quebec, their Lordships would most
probably not allow the point to be
argued, or, if important, would remit
the case to Quebec for disposal of
the point. In the House of Lords,
if a point of Scotch or Irish law
was not raised or argued in a case
on appeal from Ireland or Scotland,
the House would not send the
case back, as their Lordships sit as
an English, Scotch, and Irish Ap-
pellate Court, and are supposed to
be acquainted with these laws.”
Cooper 1;. Cooper, 13 App. Cas. 88.
In a matter of fact, unless there
is some distinct point on which the
judgment complained of is wrong,
even though doubts may be enter-
tained by their Lordships of its
correctness, the Judicial Committee,
under its standing custom, will
probably not entertain the appeal.
See post, p. 429.
In RICHER v. Verna, 13 L. C. J.
213; 15 L. C. J. 122; in P. C.
May 2, 1874, 5 L. R. P. C. 461;
30 L. T. 506; 22 W. R. 849, the
Judicial Committee allowed leave
to appeal where the action was to
recover a sum of $2,000, one ques-
tion there being the true nature
of the receipt given by the bank,
in fact, whether it was a negotiable
instrument or not. That case also
decided that the notes of a judge
who simply concurs, and which are
not communicated to both sides,
will not be looked at by their
Lordships of the Privy Council.
In ABBoT'rs v. MACDONALD,
24 Oct. 1877, 21 L. C. J. 311,
Johnson, Belanger, and Rain~
ville, J J ., held that where the
judgment of the Superior Court
had been conﬁrmed in review
against the defendant, the party
inscribing, the defendant, al—
though precluded by the local
Act from appealing direct to the
Court of Queen’s Bench, could,
under the Dominion Act 38 Vict.
c. 11. s. 17, appeal to the Supreme
Court of the Dominion. See
54 & 55 Vict. (1)0111.) c. 25. s. 3,
s.-s. 3, ante, p. 405.
The court below granting or refus-
ing leave to appeal cannot bind the
Privy Council, and therefore where
the court below refuses leave,
thinking it has no power to grant
leave, the Judicial Committee will
grant leave, if the amount involved
is large or the question is one of
importance. Ong Cheng Neo 2).
Yeap Cheah Neo, Jan. 31, 1874,
5 L. R. P. C. 89.
In BOSTON 'v. LELIIEVRE, the
appellant sought to obtain a decision
SANTACANA v.
Alwnvon.
Brenna v.
Vovnn.
ABBoT'rs v.
MACDONALD.
Bosrox v.
LELnévRE.
4126
B.N.A. ACT, s. 101.——-ARGUMENT ON LEAVE.
BosToN v.
LELIEVRE.
SuENToN 0.
SMITH.
that the Q. B., Quebec, were bound
to entertain an appeal in a case of
certiorari from the order made by
the Superior Court, dated 27 June
1862. Cap. '77. s. 23; c. 88. s. 17,
and c. 89. s. 6, C. S. L. C. 1861,
providing for general appeals, ex-
cepted cases of certiorari. Lord
Westbury, Jan. 25, 1870, 3 L.
B. P. C. 157; 18 IV. R. 408
[Sir W. Colvile and Sir Joseph
Napier being also present], said:
“ Their Lordships are not insensible
to the importance of this case. At
the same time they feel they would
not act rightly if they were to over-
rule the unanimous judgment of
the court below, upon a question of
this nature, unless they were perfect-
ly satisﬁed that the judges had com-
mitted an error in refusing the ex-
ercise of their appellate jin'isdiction.
“ The question is governed en-
tirely by the language of the co-
lonial statutes. The Court of Ap-
peal in Lower Canada is the creation
of statute, and the subjects upon
which appeal lies to that court are
deﬁned with reasonable clearness.”
Argument where Special Leave.
-—Argument on a case allowed by
special leave because of a special
point of law ought, if possible, to
be conﬁned to the question of
general importance, and ought not
to delve into the question of fact.
See Corporation of St. John 1:.
Central Vermont Rail, 14. S. C. It.
288; in P. C. 25 July 1889, 14.-
App. Cas. 590; 59 L. J. P. C. 15;
and post.
Appeal on Conditions.
SHENToN 2:. SMITH, Feb. 2, 1894,
[1895] A. C. 229. In this case
the amount was £200, and therefore
under the appealable value, being
from the S. C. Western Australia.
On account of the special nature of
the question special leave was
granted; but as the Judicial Com-
mittee considered it hard on the
individual suitor to bear the costs
of an appeal admitted on. such
ground, the appellant was put
under the obligation to pay the
costs in any event. The question
was whether Dr. Smith could be
dismissed by the Governor of Wes-
tern Australia, whom the appellant
represented at the trial. Dr.
Smith took the duty as medical
otﬁcer of health of another doctor,
Dr. Rogers, [on leave of absence,
and was gazetted as such. Later
the Governor declined to make the
appointment permanent. Blame
was attached to the respondent at
an inquest, and an order was passed
by the Governor that the respon-
dent should be informed that his
tenure of office would cease at the
close of the year. All the papers
were sent to the Secretary of State,
who declined to interfere. In 1889
Dr. Smith presented a petition of
right. After an abortive trial, be-
fore Stone, J ., and a ury, in which
Stone, J ., thought the respondent
ought to have been nonsuited,
another trial was held before On-
slow, C.J., and a jury. The latter
answered the question, Whether the
repondent was led to believe he
would hold the otﬁce during good
behaviour so long as it existed,in the
affirmative. They went on to ﬁnd
that the Government had not given
reasonable notice and had no reason-
able cause to dismiss him, and they
assessed the damage at £200. The
appellant moved for a new trial or
to have judgment entered up in
his favour. That motion was
refused, subject to the reservation
of a question to the full court:
Whether the respondent, though
appointed temporarily, was still
entitled to be treated in accordance
with the procedure laid down in
the Council Ofﬁce Regulations
with regard to the dismissal of
public servants? It was agreed
that such procedure was not fol-
lowed. if
Before the full court, Onslow,
C.J., took a view adverse to the
appellant and Stone, J ., the only
other judge in his favour, so the
judgment stood.
Lord Hobhouse delivered the
B.N.A. ACT, s. lOl.—REMEDIES- EXHAUSTED.
427
judgment of the Board [there
being also present Lord Herschell,
L.C., Lord Watson, Lord Mac-
naghten, and Lord Shand.]
After stating that in the opinion
of their Lordships the respondent
did not occupy so strong a posi-
tion as Dr. Rogers, but that they
did not dwell upon that, be-
cause they preferred to rest their
judgment on a broader ground,
he said: “It has been argued
at the bar that a colonial Govern-
ment stands on a different footing
from the Crown in England, with
respect to obligations towards per-
sons with whom it has dealings.
Their Lordships do not go into the
cases cited for proof of that pro-
position, for they are quite different
from this case, and neither principle
nor authority has been adduced to
show that in the employment and
dismissal of public servants a co-
lonial Government stands on any
different footing than the home
Government. It appears to their
Lordships that the proper grounds
of decision in this case have been
expressed by Stone, J ., in the full
court. They consider that, unless
in special cases where it is other-
wise provided, servants of the
Crown hold their offices during
the pleasure of the Crown; not by
virtue of any special prerogative of
the Crown, but because such are
the terms of their engagements, as
is well understood throughout the
public service. If any public ser-
vant consider that he has been
dismissed unjustly, his remedy is
not by a lawsuit, but by an ap-
peal of an oﬁ’icial or political kind.
Dr. Smith did, in fact, make such
an ofﬁcial appeal to the Secretary
of State, and the colonial Govern-
ment recognised his right to do so,
and prolonged his tenure so as to
allow time for the decision of that
appeal, and to save him from injury
if it should go in his favour.
Where there is representative go-
vernment the other estates may, if
they think ﬁt, make themselves the
mouthpiece of that sort of grievance
against the Crown as of any other‘
In a Crown colony, as \Vestern
Australia then was, this appeal to
the Secretary of State exhausted
the plaintiffs remedies within the
colony.”
Another case where the Judicial
Committee put upon the appellant
the obligation, as a condition of al-
lowing leave to appeal, that he should
pay all costs, charges, and expenses
which might be incurred on behalf
of the respondent in defending the
appeal, was Spooner r. J uddow, 14
Feb. 1850, 6 M00. P. C. p. 264.
In re SIBNARAIN GHosE, 8 Feb.
1853, 8 M00. P. C. 276, Sir
John Jervis said: If the petitioner
came here for an indulgence, asking
“ the rule prescribing the appeal-
able amount to be relaxed, it ought
not to be granted but upon terms.
The party respondent will have to
come here to support the order of
the S. C. upon a point which you
omitted to argue in the court below ;
you must undertake to indemnify
him from any loss you may put him
to, as well also for compensation,”
[it was a partition suit, and pe-
titioner had offered to compensate
the defendant if the commissioners’
report was varied] “if it is neces-
sary to make any variation of the
order conﬁrming the report of the
commissioners upon that point.”
The order conﬁrmed by Her
Majesty, after stating the petitioner
ought to be at liberty to enter and
prosecute his appeal against, &c.,
ran, “ upon lodging in the Council
Office,” within four months, a
certiﬁcate of recognizance to Her
Majesty in a penalty of £1,500,
to be entered into by some proper
person (to be approved of by the
Clerk of the Council) before one of
the Barons of Exchequer, con-
ditioned to stand and abide such
determination whatsoever as may
be come to by the Committee on
this appeal, and to pay such com-
pensation as their Lordships may
think ﬁt to award, and likewise
to pay such costs as may be
SHEN'roN v.
SMITH.
In re SIBNARAIN
GnosE.
428
B.N.A. ACT, s. 101—APPEAL ON TERMS.
In re SIBNARAIN awarded in case the appeal be dis-
GuosE.
MoLsoN v.
CARTER.
FoRGE'r v.
OSTIGNY.
(‘ronnnmc v.
LA BANQUE
D’HocuEnAuA.
missed.
See also Moniram Kolita 1’.
Kerry Kolitany, 13 March 187 5,
Wheeler’s P. C. Law 111. Special
leave to appeal was allowed, on con-
dition of appellant paying respon-
dent costs in any event. And
Main and others "0. Stark, 15 May
1890, Wheeler’s P. C. Law, p. 721 ;
15 App. Cas. p.390; 59L. J. P. C.
68
The Queen’s Order, 17 Nov.
1888, allowed the appeal “ upon
condition that they (the petitioners)
undertake to pay all the costs of
the respondents incurred in the said
appeal in any event, both in the
colony of Victoria and in England,
to be taxed as between solicitor
and client.”
In FoEGET v. OsTIeN-v, 18 Nov.
1893, the Judicial Committee
directed that the petitioner for
leave to appeal should undertake
“to pay the costs of such appeal
on both sides in any event, if it
shall appear advisable to the Lords
of the Committee so to order when
the said appeal comes on for
hearing.”
GoLDRING Iv. LA BANQUE
I)’HooHELAeA, Feb. 7, 1880,
5 App. Cas., 371; 49 L. J. P. C-
82, was an application by the
bank to rescind an order of the Q. B.
Quebec, 24 June 187 9, giving leave,
under art. 1178 of the Code of
Civil Procedure, to the appellant to
appeal to the Judicial Committee
against a writ of capias ad respon-
denclum issued against him, under
arts. 798 and 801. Sir J. Colvile, Sir
B. Peacock, Sir M. E. Smith, and
Sir R. Collier, held it was not com-
petent to the Court of Q. B. Quebec
to grant leave to appeal to Her
Majesty, the writ capias ad respon-
dendum not being a ﬁnal judgment.
Leave refused. But see next case.
The following case illustrates re
fusal of leave on a question of fact
in a question of the validity of a
writ of capias ; and the granting of
special leave where there is no
appeal of right under the Code of
Civil Procedure, art. 1178, and
where the question is a difficult
point of law or creates a conﬂict
between the two codes.
MoLsoN "v. CARTER was an ap-
peal from an order of Q. B., Quebec,
22 June 1880, 25 L. C. J. 65
[Dorion, C.J., Ramsay, Tessier,
JJ., Cross and Monk, J J ., dis-
senting], which aﬂirmed an order of
Papineau, J ., in the Sup. Ct. It
appears that on 17 April 187 7,
Carter obtained a judgment against
Molson, by which the latter was
ordered to pay costs, and about
$32,000. On 2 June 187 7, Carter
prayed the Sup. Ct. for a writ of
capz'as ad respondenclmn against
Molson. Molson was arrested, and
on bail released from custody. Mol-
son commenced proceedings under
articles 819, 823, of the Code of
Procedure to set aside the writ of
capias, and the above judgment
was given. Molson then petitioned
the Judicial Committee to grant
special leave to appeal. On 27 Nov.
1880, the Judicial Committee, Sir
J. Colvile, Sir B. Peacock, Sir
M. E. Smith, and Sir R. Collier,
refused leave to appeal. Sir R.
Colvile, delivering judgment, said
(25 L. C. J. p. 99): “It is
obvious their Lordships would
not, according to their usual
practice, nor could they with pro-
priety, grant special leave to appeal
upon a question of this kind, un-
less they saw clearly that there had
been some miscarriage in point of
law or very gross miscarriage in
the two courts, whose concurrent
judgments are under appeal, on
the matters of fact. Now, with-
out going into the complicated
proceedings that have been com-
mented on in this case, it is suﬁi-
cient to state that the judgments
of the court below may be taken
to have proceeded almost exclu-
sively upon the act of the petitioner,
in altering the deposit account of a
certain sum of money in the Me-
chanics’ Bank, and the facts which
B.N.A. ACT, s. lOl.-—MATTERS OF FACT.
429
led to that were simply these: the de-
fendant borrowed from the plaintiﬁ
a sum of about $32,000 ostensibly
on the security of certain property.
He paid that sum into this bank
in his own name, with a sort of
special mark. As found in July
1874, he altered the heading of
that deposit account so as to make
it appear that the money was his
wife’s. The bank became insol-
vent a month or two later, but just
when it was on the eve of insol-
vency he drew out the $32,000
upon a receipt signed by him for
and as agent of his wife; and it
is upon that transaction that the
courts below have principally pro-
ceedec .” “ There was abun-
dant evidence from which Papi-
neau, J ., and the majority of the
judges of the Appellate Court
might come to the conclusion that
the transaction was really one of
the nature described by Monk, J.,
and that it was a case of actual
secretion or the making away of
property of the debtor within the
meaning of the Code of Procedure.”
M olson v. Carter came again
to the Privy Council. On 8 July
1880, Torrance, J ., Sup. Ct., de-
clared the capz'as taken out against
Molson good, and ordered him to
pay the judgment debt of 17 July
1877, with costs and interest. On
the 3rd Sept. 1880, Carter ﬁled a
petition in the Sup. Ct. reciting
the above judgment, and alleging
it was wholly unsatisﬁed, and al-
leging that Molson had neglected to
ﬁle a statement within 30 days.
C. C. P. art. 766; c. 87. C. S. L. C.
s. 12, sub-sec. 2. On 17 Sept. 1880,
Torrance, J ., ordered that Molson
be imprisoned in the common gaol
of the district for the space of one
year. From this judgment Molson
appealed to the Q. B. Quebec. On
6 March 1882, 26 L. C. J. 159
[Dorion, C.J., Monk and Tessier,
JJ., Ramsay and Baby, J J . dissent-
ing], reversing Sup. Ct., held that
inasmuch as the Code of Civil Pro-
cedure failed to attach any penalty
whatever for not ﬁlling up the
statement required by art. 766, the Motsos v.
penalty provided by art. 2,274 of CARTER-
the Civil Code [a year’s imprison’
ment], and by c. 87. of C. S. of
L. C. s. 12, sub-sec. 2, could not
be enforced.
In the Privy Council, 10 hiarch
1883, 8 App. Cas. 530, on it being
urged no appeal was given to the
Privy Council by art. 1,178 of the
Code for Lower Canada [see Gold-
ring '0. La Banque d’Hochelaga,
Feb. 7, 1880, 5 App. Cas. 371;
49 L. J. P. C. 82, which decided
that it was not competent for the
Q. B., Quebec, to grant leave to
appeal to Her Majesty in Coun-
cil], their Lordships—Lord Black-
burn, Sir Barnes Peacock, Sir R.
Couch, and Sir A. Hobhouse—while
of opinion no appeal lay of right un—
der art. 1,178 of the Code of Civil
Procedure, said their Lordships
were prepared, as the question
was of importance, to advise Her
Majesty to grant special leave of
appeal, the appellant undertaking
to present a petition and forthwith
depositing in the Privy Council
Ofﬁce the sum of £250 as security
for costs in case the petition was dis-
missed, the argument being allowed
to proceed provisionally. On 17
July 1883, at Queen’s Order was
passed giving the leave; and on
18 April 1883, Lord Blackburn,
delivering the judgment affirming
the decision of the court below,
said (p. 535) :—
“The question, which their Lord-
ships have found to be one of con-
siderable difficulty. depends on the
true construction of the two codes
of Lower Canada, the Civil Code,
more particularly art. 2,274 and
arts. 2,613 and 2,614, and the Code
of Civil Procedure, more parti—
cularly art. 766 and those follow-
ing it, and art. 1,360. There were
careful and elaborate provisions for
framing the two codes in question;
but, notwithstanding all the pre-
cautions taken, there may be, and
in fact in the present case there
are, doubts as to the meaning of
the language employed. And the
430
B.N.A. AoT, S. lOL—CODES OLASHING.
MOLSON -v.
CARTER.
MUssoonIE
BANK "v.
RAYNOR.
SIBNARIAN
Gnosr. v. Hut.-
LODIIUR Doss.
VVILsoN v.
CALLENDER.
Civil Code of Lower Canada, art.
12, is: ‘ That when a law is doubt-
ful or ambiguous it is to be inter-
preted so as to fulﬁl the intention
of the legislature, and to obtain
the object for which it was passed.’
It is, therefore, material to enquire
how and why the two codes were
enacted, so as to ascertain what was
the intention of the legislature and
what the- object for which they
were enacted.” Carter '0. Molson
came a third time on another point
to the P. C., July 4, 1885, 10 App.
Cas. 664.
Misstatements or concealments of
facts, and objections thereto.
In MUSSOORIE BANK v. RAYNOR,
an appeal from India, March
21, 1882, 7 App. Cas. 321 ; 51
L. J. P. C. 72; 46 L. T. 633,
the petition for special leave con-
tained misstatements of fact affect-
ing the third ground relied 011 by
the petitioner. Sir Arthur Hob-
house, delivering judgment, said :—
“ Their- Lordships desire it to be
distinctly understood that an Order
in Council granting leave to appeal
is liable at any time to be rescinded
with costs, if it appear that the peti-
tion upon which the order was grant~
ed contains any misstatement, or any
concealment of facts which ought
to be (liSClOS€( .” Then his Lord-
ship considered (1) that there was
no intention to mislead; and he said the question then was, fol-
lowing Lord Kingsdown in Mohun
Lall Sookul v. Beebee Doss, 1861,
8 M00. Ind. App. p. 195, “ whether
the order in question was one which
they might not have been induced
to make if the facts had been fully
and truly stated,” and he came to
the opinion that no different con-
clusion would or could have been
arrived at if the strictest accuracy
had been observed. But in re-
versing the court below their Lord-
ships, because of the misstatement,
gave no costs of the appeal, fol-
lowing Ram Sabuk Bose 1:. Mon-
mohini l‘ossee, 1874, 2 L. R. Ind.
App. 71.
In the last case objection was
only taken during the argument
to the misstatement. Sir M. E.
Smith said: “In their Lordships’
opinion an objection of this kind
ought to be taken by the respon-
dents as early as the Vmatter is
brought to their notice, for the
plain reason that if the leave to
appeal is on that ground rescinded,
no further costs are incurred, and
it is wrong to leave the objection
until the hearing of the appeal,
when the record has been sent
from India, and when all the costs
attending the hearing have been in-
curred.” There their Lordships
punished both parties, for Sir M. E.
Smith said: “ If the objection had
been made by a preliminary motion
their Lordships have little doubt
that the motion would have been
successful,” but as it had not, and
the arguments had been heard for
the appellant, their Lordships went
on with the appeal, reversed it, but
gave the appellant no costs of the
appeal.
SIBNARIAN GHosE v. HULLoD-
HUR Doss, 30 Nov. 1854, 9 M00.
P. C. Cas. 354.
There the petition had stated
that certain exceptions taken in
the court below to the return made
by the Partition Commissioners
had been overruled, as, of course,
in consequence of the absence of
the petititioner’s counsel, whereas
the fact was the counsel of both
sides were present, and the judges
in India certiﬁed the petitioner’s
counsel was present and declined
to argue the exceptions. Turner,
L.J., in dismissing the appeal with
costs, said: “We consider it a
matter of the utmost importance
that parties who come here for an
indulgence upon an ex parte appli-
cation should take care and speak
the truth.”
WILsoN v. CALLENDER, 20 July
1855, 9 M00. P. C. 100, was
a similar case. There the pe-
titioner stated that the accounts
B.N.A. Ao'r, S. 101._M1ssTATEuENTs.
431
and securities in question were of
the value of £300, the sum limited
by the royal instructions regulating
appeals from the Island of Barba-
does. On this allegation special
leave had been granted. But when
the appeal came on it appeared that
the securities, 850., had been proved
at the trial to be not of the value
of a single shilling. Case stopped
and dismissed with costs.
In BULKELEY v. ScUTz, Feb.
28, 1870, 3 L. R. P C. 196, it
appeared that special leave to
appeal had been given on a mis-
statement of fact. The petitions,
slated the petitioner, had inadvert-
ently omitted to. apply to the S. C.
for leave to appeal, whereas it ap-
peared that he had applied and had
obtained leave, but the appeal had
not been duly prosecuted. Their
Lordships refused to hear the
appeal.
On the other hand, the respon-
dent ought to petition the Privy
Council as soon as he has know-
ledge that a petition for special
leave has been improperly granted.
He ought not to wait until the
hearing. See above and ante
p. 421, Sauvageau v. Gauthier,
5 May 1874, 5 L. R. P. C. 494.
Also the leave will be rescinded
where shown that the rules of
the court below as to notice of
appeal have not been complied
with. The Brenhilda v. British
India Navigation Go, March 15,
1881 ; Wheeler’s P. C. Law, 135;
8 L. R. Ind. App. 159.
In LYALL '0. JARDINE, from
S. C. Hong Kong, July 8, 1870,
3 L. R. P. C. 318; 39 L. J. P.
C. 43; 22 L. T. 882, the special
leave to appeal having been ob-
tained ea: parte on the suppression
and misrepresentation in the pe-
tition, the appeal was dismissed
with costs, (1) on the ground of
not giving full information; and (2)
their Lordships, as an Appellate
Court, declining to hear an appeal
barely on the ground that certain
facts, which, if they had been sub-
mitted to the court below, would
have led to a different order being
made. Lord Cairns said: “ N 0-
thing can be more important
than that it should be understood
that those who come before this
Committee upon an ex parte appli-
cation for leave to appeal should
consider it their absolute duty to
state, in the fullest and frankest
way, every circumstance connected
with the history of the case which
possibly can have any bearing on
the leave for which they ask.”
CAMEEENoN v. EGROIGNARD,
20 Feb. 1830, l Knapp, 251, de~
cided that all questions relative to
the value, or suﬂiciency of securities
tendered for the due prosecution
of the appeal are to be decided
by the court below, and if that
court declares they are insufficient,
the Judicial Committee—on an
appeal from the Mauritius—decided
that they had no jurisdiction. In this
case a subsequent petition was ﬁled
to be allowed to appeal on giving
such security as the Council should
think ﬁt, but after hearing counsel
their Lordships dismissed it with
costs.
Allowed for Special Reasons.
An appeal has been allowed from
a decision of a Guernsey court con-
ﬁrming a rate for the relief of the
poor, though below the appealable
amount. Re T upper, Jan. lst,
1834, 2 Knapp, 201.
In MAYOR oE MONTREAL AND
SPRINGLE 2). BROWN, 16 L. C.
J. l; in P. C. Nov. 11, 1876,
2 App. Cas. 168; 35 L. T.
870, the Privy Council decided
that the Q. B. Quebec could
hear an appeal from the Superior
Court, notwithstanding the fact
that the Province of Canada Act
27 8t 28 Vict. c. 60. said that
the decision of the court, on
report of certain commissioners
in expropriation should be ﬁnal.
The Act 27 & 28 Vict. c. 60.,
after stating that in consequence of
LYALL v. J Au-
DINE.
BULKELEY r.
ScUrz.
CAMEEnNoN r.
EGROIGNAR 1).
MAYoR or
MoN'rREAL ANn
SraINeLE
v. BRowN.
432
B.N.A. ACT, s. 101—MEASURE OF VALUE.
MAvoR or
MONTREAL AND
SPRINGLE v.
BROWN.
ALLAN v.
PRATT.
the rapid extension of the city of
Montreal it became necessary to
lay out streets and make other
arrangements for the public con-
venience, goes on to give various
ways of making the improvements,
and directs that they are to be paid
out of the funds of the city. If the
city cannot agree with the owner
as to price, application is to be
made to the Superior Court, or a
judge of that court in chamber, to
select three persons to act com-
missioners to ﬁx the price. These
commissioners could examine wit-
nesses, call for deeds, &c. Then
in sub-sec. 9, if one or more of the
commissioners shall fail in his
duties and shall not fulﬁl them in a
faithful, diligent, and impartial
manner, it shall be lawful to apply
to the Superior Court to stay pro’
ceedings, &c. Then it goes on,
that as soon as the commissioners
shall have completed their valu-
ation, the corporation are to give
notice for any parties to come in
and object to the valuation. Then
the corporation were to submit to
the court their report, containing
the appraisement of the commis-
sioners, for the purpose of being
conﬁrmed.
ALLAN v. PRATT, in Sup. Ct.,
Torrance, J ., Dec. 30, 1884, main-
taining Pratt’s action for damages
for personal injuries, in which he
was awarded $1,100 against Allan,
in whose employ he was. Pratt
claimed $5,000 damages. Allan
appealed. Dorion, C.J., Tessier
Cross, and Baby, J J ., 18 March
1887, 3 Mon. Q. B. 7, held they
would not modify the amount
measured by the discretion of a
competent tribunal. Cross, J ., gave
these facts. Two squads of men
were employed in discharging the
steamer “ Canadian,” of the Allan
Line. The squad Pratt was in had
been dismissed for lunch, the other
was removing a heavy iron girder
mounted on a low truck. The
' girder was long and about 1% tons,
and it was difficult to move it
owing to the soft ground. The
foreman of this squad called for
volunteers from the dispersing
gang; the respondent answered,
and placed himself to balance
the girder. The truck struck
the rails of the G. T. Railway
and the girder rolled on Pratt,
permanently crippling him. The
Q. B. gave leave to appeal 29
March 1887, 3 Mon. Q B. 322; in
P. C. July 26, 1888, 13 App. Cas.
780; 57 L. J. P. C. 104; 59 L. T.
674; 15 Q. L. R. 18. Earl Sel-
borne delivered judgment, at which
were also present Lords Watson
and Hobhouse and Sir Barnes
Peacock :—
“ Their Lordships are of opinion
that the appeal is incompetent.
The proper measure of value for
determining the question of the
right of appeal is, in their judg-
ment, the amount which has been
recovered by the plaintiﬁ in the
action and against which the appeal
could be brought. Their Lord-
ships, even if they were not bound
by it, would agree in principle with
the rule laid down in the judg-
ment of this tribunal delivered by
Lord Chelmsford in the case of Mac-
farlane r. Leclaire (15 M00. P. C.
181; 10 W. R. 324; 8 Jur. N. S.
267, ante, p. 420), that is, that the
judgment is to be looked at as it
affects the interests of the party who
is prejudiced by it, and who seeks
to relieve himself from it by appeal.
If there is to be a limit of value at
all, that seems evidently the right
principle on which to measure it.
The person against whom the
judgment is passed has either lost
what he demanded as plaintiff or
has beemadjudged to pay some-
thing or to do something as de-
fendant. It may be that the value
to the defendant of an adverse
judgment is greater than the value
laid by the plaintiff in his claim.
If so, which was the case in
Macfarlane 'v. Leclaire, it would be
very unjust that he should be
bound, not by the value to himself,
but by the value originally assigned
Q
433
B.N.A. AOT, S. 101.—VALUE or APPEAL.
to the subject-matter of the action
by his opponent. The present is
the converse case. A man makes
a claim for much larger damages
than he is likely to recover. The
injury to the defendant, if he is
wrongly adjudged to pay damages,
is measured by the amount of dam-
ages which hev is adjudged to pay.
That is not in the least enhanced
to him by the fact that some greater
sum had been claimed on the other
side.
“ Therefore in principle their
Lordships think the case is governed
by Macfarlane 'v. Leclaire upon the
question of value, and they do not
think it is at all affected by the cir-
cumstance that the court below did
not give effect to that objection,
but gave leave to appeal. It has
been decided in former cases that.
leave so given does not make the
thing right, if it ought not to have
been done.
“Then it is submitted by the
learned counsel that their Lordships
ought to give an opportunity for
an application to be made for
special leave to appeal on the
ground that not only questions of
fact, but also, as bearing on those
facts, questions of law, and par-
ticularly a question of law which
may be important, upon article
1054 ” [master’s liability for fault of
fellow servant] “ of the Civil Code,
are involved in the case. Of course
their Lordships will not at present
go into the merits of the case at all,
and they will assume that there
may be such a question and that
it may be important; but the
present question is, whether, this
appeal being incompetent, they
ought to give, under the circum-
stances of the case, an opportunity
of asking for special leave to ap-
peal. N o doubt there may be
cases in which the importance of
the general question of law in-
volved may induce their Lordships
to give leave to appeal, though the
value of the matter in dispute is
not sufficient ; but their Lordships
must be governed in the exercise
S 2310.
of that discretion by a consider-
ation of all the circumstances of
each particular case. In this case
they see from the manner in which
it comes before them that this
general question of law, if allowed
to be argued on appeal, would be
argued at the expense, if he did
appear and go to any expense, of
a man evidently too poor to under-
take it. And, secondly, they see
that there would be no probability
whatever, if they permitted such
an appeal, of their Lordships having
the assistance which they must
necessarily desire, whenever an im=
portant question as to the con-
struction of an article of the Civil
Code, having so large a hearing as
this is suggested to have, may re-
quire to be considered and de-
termined by them. If in any
future case a similar question should
arise, and should be competently
brought before their Lordships, no
doubt it will be decided upon its
merits and not held to be ﬁnally
concluded by the judgment given
in this particular action. T heir-
Lordships do not think it would be
at all a satisfactory thing to allow
an appeal not otherwise competent
for the sake of raising in those
circumstances and in that manner
a question of the importance which
this question is said to have.
Therefore the appeal will be dis-
missed, but, as nobody has ap_
peared to oppose it, there will be
no costs. [Pratt did not appear].
In BoswELL v. KILBORN in P. C.
1 Feb. 1859, 12 M00. P. C. 467,
an action had been brought against
Boswell for £600 currency for an
alleged breach of contract. The
Sup. Ct. Quebec dismissed the
action, but the Q. B. Quebec re-
versed that judgment and awarded
the sum claimed. Boswell asked for
leave to appeal, but the Q. B. Que-
bec refused it, the £600 currency
being below the appealable amount,
£500. The Judicial Committee
granted leave to appeal because, by
the law of Canada (22 Vict. c. 85.),
EE
ALLAN v.
RATT.
BOSWELL '0.
KILBoRN.
434
B.N.A. ACT, s. 101.——-AMOUNT DEMANDED.
BOSWELL v.
KILBORN.
JoYcE v. HART.
D’ORLIAC v.
D’ORLIAC.
interest ran with the judgment,
which would bring the subj ect-mat-
ter within the appealable amount;
and, secondly, because impor-
tant questions of mercantile law
appeared to be involved, and an-
other action was about to be raised
on the same question. But their
Lordships granted the application
on the terms that £100 was lodged
in the Privy Council as security;
for costs. See Queen’s Order,
2 Feb. 1859. The result was,
5 March 1862, that a new trial
was ordered to take place in Can-
ada, the respondent to pay the
costs of the appeal, the costs of
the rules in ﬁthe courts below to
abide the event of the new’trial.
See above, arts. 1142 and 1178 of
the Code of Civil Procedure; the
R. S. C. (1886) c. 135. s. 29; C. S.
L. C. (1861) c. 77. 52.
In J OYCE v. HART, an ap-
peal from Q. B. Quebec, January
1877, the S. C. (l S. C. It. 321)
held in a claim for £500 damages
for altering the gable of a house,
where the jury only gave $100
damages, that the appealable sum
was the amount sued for and not
the amount of the judgment.
This was followed by Dorion, C.J.,
and the majority of the court in
Grand Trunk Railway 12. Godbout,
8 Sept. 1877, 3 L. R. 346, in
allowing an appeal to the Privy
Council, where the action was for
$10,000 and the judgment given
for $2,000. His Lordship said:
“ This court has already decided
that the right of appeal from the
Circuit Court is to be determined
by the amount demanded and not
by the amount of the judgment.
Art. 1142 says, ‘An appeal lies to
the court of Q. B. from any
judgment rendered by the Circuit
Court in the following cases :—
(l) \Vhen the sum or value of the
thing demanded amounts or ex-
ceeds $100, &c.’; while art. 1178
merely says that an appeal lies to
Her Majesty‘ (3) In all other cases
wherein the matter in dispute ex-
ceeds the sum or value of £500.’
According to the French juris-
prudence, it is always the amount
demanded, and not the amount of
the judgment appealed from, which
determines the right of appeal.
Sirey, Code de Proc. Annoté, art.
453, s. 1, No. 6, cites a great
many decisions in that sense.
This rule was adopted by 12 Vict.
c. 38. s. 82, reproduced in s. 25 of
c. 77. C. S.IL. C. (1861),which says
that ‘whenever the jurisdiction of
the court, or the right to appeal
from any judgment of any court,
is dependent upon the amount in
dispute, such amount shall be under-
stood to be that demanded and
riot "that *rec'overed", ‘if they are
diiferent.’ This section of the
statute has not been repealed by
the code, either expressly or by
implication, and is therefore still
in force. It is contended that it
merely refers to appeals to the
Superior Court, but the terms are
so general that they do not
admit of such a restriction, espe-
cially when the rule laid down is
according to the rules of French
procedure which prevails here.”
See ante, 54 & 55 Vict. (I)om.)
c. 25. sec. 3, sub-sec. 4.
Special Leave, where Court of
Justice silent: Divorce.
D’ORLIAC v. D’ORLIAC, 9 May
1844, 4 M00. P. C. 374, from the
Island of Mauritius. This was an
appeal from the Cour D’Appe1 af-
ﬁrming a decree of divorce of the
Court of First Instance dissolving
the marriage between the appeliant
and respondent for the former‘s
adultery and cruelty. The respon-
dent, the wife, lodged a petition
that there was no right of appeal
under the Charter of Justice of
13 April 1831. [The reports set oit
the material parts of the charter.]
Lord Brougham, dealing with the
wife’s petition, said [there being
also present WVigram, V.C., Dr.
Lushington, and Pemberton Leigh]:
“The words of the charter are-~-
B.N.A. ACT, s. 101.—-LEGITIMACY INVOLVED. 435
‘ \Vhere the sentence shall involve
directly or indirectly any claim,
demand, or question to, or re-
specting, property or any civil right
amounting to, or of, the value of
£1,000 sterling.’ Surely the valid-
ity of the marriage, title to dower, or
a question of legitimacy, are all civil
rights. And were there no other
remedy it would be quite monstrous
to say, that you might appeal for
£1,000, and not for a case where
legitimacy is involved. But the
charter, we think, has omitted cases
of divorce, and the Cour D’Appel
was, therefore, wrong in granting the
appeal. There should have been a
special application here for leave to
appeal, under the general powers
reserved by the charter to the
Crown, which may, if it think ﬁt,
grant leave to appeal. Their Lord-
ships will exercise their discretion
in so advising Her Majesty if a
proper case is brought before them,
but this petition must be granted,
and the appeal granted by the
Cour I)’Appel dismissed.”
On a subsequent date, 13 June,
the appellant presented a petition
for special leave to appeal, which
was allowed, but on terms of his
lodging his case on or before the
27th June and paying the costs of
the day, the appeal to stand dis-
missed if the case was not lodged
within the time limited without
further application to the court.
It appeared that the decree of the
Cour D’Appel had been pronounced
on 16 Sept. 1841, and the appellant
had delayed in his appeal. Even-
tually the appeal became dismissed.
So also in an appeal from the
Island of Mauritius, SHIRE r. SHIRE
[present], the Lord President, Lord
Brougham, Dr. Lushington, and
Pemberton Leigh], 12 Feb. 1845,
5 M00. P. C. 81. The question
arose in an appeal by the husband
from a judgment of the Court of
Appeal for the Island of Mauritius,
which granted the wife a decree of
restitution of conjugal rights with
alimony. When the appeal was
about to be heard, the objection
was made that the Charter of Justice
of the island did not provide for
appeals in matrimonial cases. Lord
Brougham said: “Every marriage
involves the liabilities insisted on
by the appellant, the status of the
issue of the marriage; and that is
a right which may be said to be
beyond pecuniary value. The
point was very carefully considered
in D’Orliac v. D’Orliac, 9 May
1844, 4 M00. P. C. 3'74, and
though there was no charter
right of appeal in matrimonial
causes, we recommended the Crown
to grant leave to appeal, on a
special application for that pur-
pose. . . . Their Lordships will re-
commend the allowance of an
appeal, the case to stand over for
the appellant to present a petition
for such purpose.”
Leave where Children are
concerned.
In CAMILLERI "v. FLERI, 20 June
1845, 5 M00. P. C. 161, special
leave to appeal was allowed from a
decision of the Court of Second
Instance of Malta, from which
court, by order in council of
18 Dec. 1834, an appeal is allowed
where the matter of issue involves
any civil right amounting to the
value of £1,000. “In any judg-
ment, decree, order, or sentence
for or in respect of any sum or
matter at issue, above the amount
or value of £1,000 sterling, or in
case such judgment, decree, order,
or sentence shall involve, directly
or indirectly, any claim, demand,
or question to or respecting pro-
perty, or any civil rights amount-
ing to or of the value of £1,000
sterling.” The Court of Second
Instance had aﬂirmed the decision
of the Court of First Instance,
ordering the petitioner, the mother
of two children by her ﬁrst mar-
riage, to deliver them up to the
custody of their grandmother. It
appeared that the children’s father
and the mother, the petitioner, had
been Roman Catholics, and that
"i
EE is
SuiRE u. SHIRE.
CAuILLERI v.
FLERI.
436
B.N.A. ACT, s. 101.—-STAYIN G EXECUTION.
CAMILLERI v.
FLERI.
In re VIcToRIA
SKINNER.
CHUTRAPUT
SINGH DOORGA
o, DwARKANA'rn
GI-IosE.
STAGE v.
GRIFFITH.
the mohter, after the father’s
death, had become a Protestant
and had married a Roman Catholic
priest who had joined the com-
munion of the Protestant Church.
Pending the hearing of an Appeal,
the Judicial Committee may
make an interim order.
In re VIUTORIA SKINNER, Dec. 5,
1870, 3 L. R. P. C. 451 [present,
Sir R. Phillimore, James, and
Mellish, L.J J .], the Judicial Com-
mittee, having given special leave
to appeal, gave also liberty, pending
the hearing, for the mother of an
infant, the custody of which was
the question in issue, to apply to
the High Court to have access at
suitable times to her daughter. In
fact, the Board repeatedly make in-
terim orders of revivor, &-c.; and
see Maharani Indar Kunwar 'zr.
Maharani Jaipal Kunwar, post,
p. 426, L. R. 15, Ind. App. Cas.
127.
In CHUTRAPUT SINeH DOORGA
e. DWARKANATH GHosE, July 28,
1874, 21 L. R. Ind. App. 170;
I. L. R. 22 Cale. l, a stay of exe-
cution had been refused by the
High Court, Bengal, the two judges
differing in opinion. The Board of
the Judicial Committee [Lord ‘Vat-
son, Lord Macnaghten, Lord Mor-
ris, and Sir R. Couch] held that
as the two judges in the High
Court had differed in opinion, the
discretion of the Court under sec.
608, sub-sec. (c.) of the C. of C. P.
(Act xiv. of 1882) had not been ex-
ercised, and granted a stay of execu-
tion. And it seems their Lordships
were also of opinion that in such a
case there need not be an appli-
cation for special leave to appeal
from the order complained of as
well as for stay of execution; that
is, that if there is a‘ right of appeal,
or leave to appeal, the petition
need only ask for stay of execu-
tion. The facts were these: The
action was for a certain chur of
land. The whole of the land was
awarded to the plaintiff. On 5 July
1892 the High Court allowed an
appeal under sec. 603, C. of C. P.
An order was then made in the
Court of First ‘Instance for execu-
tion, whereon the defendant ap-.
plied to the High Court under
sec. 608, C. of C. P. for an order
staying execution on the ground
that the land might deteriorate,
landmarks might be removed, and
mesne proﬁts be diﬁ‘icult to get
back. This was refused, 27 April
1894, the udges differing. Hence
the application. This latter case
appears rather to alter the practice,
See Wheeler’s P. C. Law, p. 446.
Where property is transferred to
one claimant pendingvthevhearing
of the appeal to the Judicial Com-
mittee, and the property may be
wasted or become dilapidated, and
security has not been taken, the
Judicial Committee will order the
court below to take proper secu-
rity. In re Rajah Vassareddy
Lutchmeputty Naidoo, July 5,
1852, 5 M00. Ind. App. Cas. 300.
In STAGE 2:. GRIFFITH, Feb. 8,
1869, 6 M00. P. C. N. S. 18, from
S. C. St. Helena, the judge di-
rected the jury in a case of alleged
libel that they had to ﬁnd whether
a certain letter was a privileged
communication. On the petition
for special leave, the appealable
value being under £500, Lord
Cairns said [there being also pre-
sent Sir James Colvile, Sir E.
Vaughan Williams, and Sir R. T.
Kindersley] : “ A question of con.
siderable importance arises on this
application, namely, whethera letter
written by the petitioner to the
Colonial Secretary was a privileged
document. That point seems to
have been utterly overlooked by the
judge, who left the whole case to
the jury. Their Lordships are of
opinion that leave to appeal ought
to be granted that this question
may be properly determined. Leave
will, however, be granted upon
special terms, namely, that the 'pe-
titioner give the usual security for
the respondent’s costs of appeal,
B.N.A. Ao'r, s. 101.-—PB.OTECTING SUBl-MATTER. #137
and also deposit with the registrar
the amount of the damages awarded;
the plaintiff (respondent) to enter
into an undertaking to suspend the
execution of the judgment.”
See also the libel case of
Jenour'e Delmege, Dec. 19, 1890,
[18.91] App. Cas. 73; 60 L. J. P.
C. 11; Wheeler’s P. C. Law,
783.
In MussUMA'r JARIUTooL BU-
TOOL a MUssUMA'r HOSEINEE BE-
GUM, 19 June 1865, 10 M00. Ind.
App. p. 202, a case where estates had
been transferred without security,
Turner, L.J., delivering judgment
[at which were also present Knight
Bruce,L.J.,and Sir John T. Cole-
ridge]: “Their Lordships have
felt some difﬁculty in dealing with
this case, which in the circum-
stances is new. But, on examining
the regulations and considering the
nature of the case, they are of
opinion that an order may be
made upon this application. At
the same time they think the
proper order to be made should be
one which should leave it as far as
possible in the discretion of the
Sudder Dewanny Adawlut as to
what proceedings or what steps
should be taken, and their Lord-
ships propose, therefore, to make
the order in this f'ormi Their
Lordships, being of opinion that it
is expedient that sufﬁcient security
should be taken from the respon-
dent for the due performance of
such order and decree as Her Ma-
jesty may make on this appeal, and
that it was competent to the Sudder
Dewanny Adawlut to require such
security to be given, or otherwise
to provide for the protection and
security of the property in question
pending this appeal, notwithstand-
ing that execution had issued be;
fore this appeal was allowed, agrec
to recommend Her Majesty to
order that the appellant be at
liberty to apply to the Sudder
Dcwanny Adawlut for such se-
curity to be given, or such pro-
vision to be made,- as she may be
advised.” Subsequently the P. C.
refused to redecide the facts and
dismissed the appeal, 25 Feb.
In MAHARAXI INDAR KUNVVAR
v. 1VIAIIARANI JAIPAL KUNWAR,
SENIOR and JUNIOR, wives of the
hlaharajah of Bulram'pur, 26 Nov.
1886, the petitioner asked for
special leave to appeal from an
order of the Judicial Commissioner
of Oudh, and that pending the
hearing execution should be stayed.
The ﬁrst court awarded the junior
widow, the respondent, an annuity
of 25,000 rupees out of the Maha-
rajah’s estates, the senior widow to
have the management of the estates.
The Commissioner of Oudh re-
voked the ﬁrst court’s decision, and
ordered the petitioner to pay the
respondent half the net proﬁts of
the estate, her costs of 62,125
rupees, and to lodge 5 lacs of
rupees out of the mesne proﬁts
by 25th of August, and decree of
execution stayed until decree under
appeal be determined. By a sub‘
sequent order on 25 August 1886,
she was ordered to pay in what she
showed she had received out of the
estate-284,525 rupees—by 1st
September, and the rest of the
5 lacs by 1st October. The costs
and the sum of 284,525 rupees
she paid into Court. The 284,525
rupees was immediately taken out
of court by the respondent.
1886, 13 Nov. Lord Hobhouse,
Sir Barnes Peacock, and Sir R.
Couch granted special leave to ap-
peal, but felt a difficulty about
ordering a stay of execution. Their
Lordships thought the intimation
of their opinion that it was not
reasonable that the respondent
should be put into possession of so
large a sum of money as‘ 5 lacs——
it being probable that she would
not receive more than the annuity
of 25,000 rupees—would be sufii-
cient. And with that intimation,
the petitioner was at liberty to
apply to the proper quarter in
India for the due security for all
MAHARANI
1N DAR K UN WAR
0. )[AHARANI
JAiPALKUNWAR.
MUssUirAT
JARIUTOOL
BUTOOL v.
Mussunxr
HosEI-Nmi
BEGUM.
4188
B.N.A. ACT, s. 10L—QUESTION OF FACT.
MAHARANI
Inn-m KUNWAR
v. MAHARANI
J AIPALKUN WAR.
NARAGUNTY
LUTCIIMEEDA-
VAMAII v. VEN-
GAMA NAIDOO.
MoNTAIeNAc r.
SI-IITTA.
TAREENY
CHURN BONNET‘.-
JEE '0. MAIT~
LAND.
moneys paid in. The Order in
Council giving leave to appeal,
dated 26 Nov. 1886, was: “That
leave ought to be granted to the
petitioner to enter and prosecute
her said appeal from the order of
the Judicial Commissioner of Oudh
of the 22 June last, and their
Lordships do further report to
IIer Majesty that it appears to be
the reasonable course that the
plaintiff (respondent) should not,
pending the principal appeal, he
put into the possession of the large
sums in dispute, and that she
should not receive more than the
annuity of 25,000 rupees which
was decreed to her by the ﬁrst
court; and with this intimation of
advice their Lordships recommend
that the petitioner be at liberty to
apply to the proper court in India
for the due security of all money
paid into the Treasury in obedience
to the decree of the Judicial Com-
missioner of Oudh.” [Times news-
paper, 1886, Nov. 15, 31).] Sub-
sequently decided, 10 March 1888,
L. It. 155 Ind. App. 127, that the
junior widow was only entitled
to an annuity of 25,000 rupees,
payable out of the entirety of the
testator’s estate.
MoNTAiGNAo v. SH'ITTA, on
appeal. from the S. C. Lagos and
C. of App. for the colony of Lagos.
The latter court ordered the peti-
tioners to pay in £4,928 198. 6d.
within a week, and refused leave to
appeal to the Judicial Committee,
although the petitioner oliered to
ﬁnd responsible persons to become
security for this £4,928 198. 6d.
1889, 29 June. The petitioner
asked for special leave to appeal,
and deposited in the Registry of
the Privy Council, to the satisfac-
tion of the Registrar, Treasury
bills to the amount of £5,000.
Lord Watson, Sir Barnes Peacock,
and Sir R. Couch granted leave to
appeal. The Order in Council,
dated 5 July 1889, contained the
following :—The petitioner to pay
in £300 as to costs, 810. “ Fur-v
ther, that execution ought to he
stayed pending the hearing of the
appeal, and that the Treasury bills
to the amount of £5,000 so deposited
as aforesaid in the 'I‘reasury of the
Privy Council, ought to be held as
having been deposited with the
said appeal.” For subsequent
atﬁrmance of the judgment in this
case, see July 17, 1890, 15 App.
Cas. 3557.
Where the Law is Correctly De-
cided, Judicial Committee will
not redecide the facts if the
Courts have been unanimous or
even divided in opinion.
In NARAGUNTY LUTCHMEEDA-
VAMAH e. VENGAMA NAIDOO,
Dec. 4:, 1861, 9 M00. Ind. App.
Cas. p. 87, a case from Madras in-
volving the right of succession
to a Hindoo ancestral estate,
Lord Kingsdown said [there
being . lso present Sir L. Peel and
Sir J. Colvile]: “Both parties
went into evidence as to the facts,
and the Zillah Court ﬁrst, and the
Sudder Court afterwards on appeal,
were of opinion that the plaintiffs
had sufficiently proved their case,
and no difference of opinion ex—
isted amongst the judges below.
It is not the habit of their Lord-
ships, unless in very extraordinary
cases, to advise the reversal of a
decision of the courts of India
merely on the effect of evidence or
the credit due to witnesses. The
judges there have usually better
means of determining questions of
this description than we can have,
and, when they have all concurred
in opinion, it must be shown very
clearly that they were in error to
induce us to alter their judgment;
but in this case we think that the
courts could have come properly to
no other conclusion than that at
Which they arrived.”
In TAREENY CHURN BONNERJEE
v. MAITLAND, 12 July 1867, ll Moo.
Ind. App. Cas. p. 338, the sub-
stantial question being the validity
B.N.A. ACT, s. 101.—-1VHO JUDGES OF FACT.
439
of a deed, Lord Cairns said [there
being also present Sir James
Colvile, Sir E. Vaughan Williams,
Sir R. T. Kindersley, and Sir L.
Peel] : “ Now the learned judges in
the courts below—the two judges
in the primary court and the three
judges in the Court of Appeal—
have all arrived without hesitation
at the conclusion that the debt of
Rs. 43, 674 was not a bond. ﬁrle
debt due from Obhoychurn, and it
would be far from consistent with
the rules which their Lordships
have always laid down in dealing
with cases of this kind for them to
reverse a decision upon a question
of fact thus unanimously arrived at
by ﬁve judges, unless the very
clearest proof were adduced to their
Lordships that that decision was
erroneous. It is true that only
the two primary judges had before
them the witnesses, or the witness,
who were or was exan'iined; but
the three judges of the Court of
Appeal, conversant with testimony
of the kind which has to be
dealt with in this case, were of
opinion that the two judges of the
court below had arrived at a just
conclusion upon the evidence that-
was ever a-dducet .”
ALLEN 11:. QUEEEe IVAREHQUsE
(10., from B. Quebec, 8 Oct.
1884, al‘lirming Sup. Ct. In
P. C. l8 Nov. 1886, 12 App. Cas.
101 ; 56 L. J. P. C. 6. The appel-
lant brought the action against the
respondent for damages for breach
of warranty as public wharﬁngers.
They stated they were the owners
of the “ Bridgewater,” of 1,556 tons,
that on 21 Nov. 1880 she was
moored by her how to a post and
mooring block on the wharf of the
respondents; that owing to the
post being decayed the ship broke
away. Lord Herschell said [there
being also present Lord Fitzgerald
and Sir Barnes Peacock] : “ Their
Lordships having arrived at the
conclusion that there has been no
error in point of law, the sole
question that remains for deter-
mination is, whether the judgment
of the court below ought to be
reversed on the ground that the
judges have taken an erroneous
view of the facts. Now, it has
always been the view taken by this
Conmiittee in advising Her Ma-
jesty, when the question for de—
termination has been whether the
concurrent udgment of the udgcs
who have been unanimous below
should be supported or reversed,
that unless it be shown with abso-
lute clearness that some blunder or
error is apparent in the way in
which the learned judges below
have dealt with the facts, this
Committee would not advise Her
Majesty that the judgment should
be reversed. That principle has
been laid down in many cases.”
[His Lordship then read the pas-
sages given above from the judg-
ments of Lord Kingsdown and
Lord Cairns in Naragunty Lutch-
meedavamah r. Vengama N aidoo,
and Tareeny Churn Bonnerjee r.
h'laitland respectively, and con-
tinued] : “ Their Lordships entirely
adhere to the views thus expressed,
and therefore they do not consider
that the question they have to
determine. is, what conclusion
they would have arrived at if the
matter had for the ﬁrst time come
before them, but whether it had
been established the judgments of
the courts below were clearly
wrong.” His Lordship then con-
sidered the evidence as to con-
tinuing to moor to one post (which
post the judges below had exa~
mined‘) when a gale arose and the
tide was forcing the ‘ship away from
the post, and found that it could not
be said that the judgments were
wrong, and therefore they ought
not to be disturbed.
A preliminary application was
made in the above case that the
rotten post in question should be
ordered to be sent from Quebec
for the inspection of the Judicial
Commit-tee, but the application was
refused.
ALLEN v. QUE-
Bnc WARE-
noUsE Co.
440 B.N.A. AcT, S. lOL-PREROGATIVE PRESERVED.
THEEERGE v.
LAN-DRY.
Fixing the Quantum of Damage.
-—The Judicial Committee may
themselves ﬁx the quantum of
damage where it will avoid further
litigation. The \Vindsor and
Annapolis Railway Co. v. The
Queen, in P. C. 24 June 1886,
55 L. J. P. C. 41; 55 L. T. 271
[see post, sec. 108], reversing on
the point of damages the judgment
of the S. C. of 16 Feb. 1885,
10 S. C. R. 335.
It appears from the City of VVin-
nipeg o.- Logan, 19 March 1892,
where special leave was asked to
appeal from the decision of the Q. B.
Manitoba,—-t_he school case—that
where no order has been made for
receiving appeals from a new dis—
trict or country, special leave must
always be obtained.
In THEBERGE o. LANDRY, Nov.
7,1876, 2 App. Cas. 102; 46 L. J.
P. C. l; 35 L. T. 640, a case
dealing with a controverted election
petition under Quebec Act of 18 7 5,
Lord Cairns, L.C., delivering the
judgment, said : “Their Lordships
wish to state distinctly, that they
do not desire to imply any doubt
whatever as to the general principle
that the prerogative of the Crown
cannot be taken away except by
express words ; and they would be
prepared to hold, as often as has
been held before, that in any case
where the prerogative of the Crown
has existed, precise words must be
shown to take away that preroga-
tive.” [See ante, p. 308.] -
One of the ﬁrst cases on appeal
from the S. C. in which special
leave to appeal was refitsed, was
Johnston 1). The Minister and
Trustees of St. Andrew’s Church,
a petition on the part of the
minister, &c., to appeal. The
cause of action was a disturbance
in the occupation of a pew, and
the action was raised by Johnston
to obtain damages for that. The
Sup. Ct. Montreal dismissed the
action with costs. On 3 Feb. 1876
the Q. B. Quebec affirmed that
decision [Monk, Sanborn, and
Tessier, J J .,- Dorion, C.J., and
Ramsay, J., dissenting], 18 L. C. J.
113; 1 S. C. R. 235. The S. C.,
28 June 1877 [Ritchie, Taschereau,
li‘ournier, and Henry, JJ ., Richards,
C.J., and Strong, J., dissenting],
allowed the appeal, and ordered the
minister, &c., to pay Johnston 8300
and costs in all the courts.
In P. C. Dec. 10, 1877, 3 App.
Cas. 159; 37 L. T. 556; 26 )V. R.
359, Lord Cairns, L.C. [there be-
ing present also Sir J. Colvile, Sir
Barnes Peacock, Sir M. E. Smith,
and Sir R. Collier], delivered the
judgment refusing special leave.
His Lordship, after reading the 47 th
sec. of the Supreme Court Act,
38 Vict. c. 11. [see ante, p. 405],
said: “That section consists of
three parts; the second or inter-
mediate part of the section contains
the negative words, ‘N o appeal
shall be brought,’ 85c. Those words
their Lordships may leave out of
consideration,- because they refer to
what may be called the hypothetical
establishment of a court by the
Parliament of Great Britain and
Ireland [Judicature Act, 1873], by
which court appeals from the
colonies are supposed to he ordered
to be heard, and, inasmuch as no
court of that kind has been estab-
lished, that part of the section may
be omitted from our consideration.
I will read it, therefore, as if the
section ran thus: " The judgment
of the Supreme Court shall in all
cases be ﬁnal and conclusive, sav-
ing any right which Her Majesty
may be graciously pleased to ex-
ercise by virtue of her royal pre-
rogative.’
“ Now, their Lordships have no
doubt whatever, that assuming, as
the petitioners do assume, that their
power of appeal as a matter of right
is not continued, still that Her Ma-
jesty’s prerogative to allow an ap-
peal, if so advised, is left entirely
untouched and preserved by this
section. Therefore their Lordships
would have no hesitation in a proper
case in advising Her Majesty to
B.N.A. ACT, s. lOL—G-UIDING PRINCIPLES.
4:441
allow an appeal upon a judgment
of this court.
“But the question remains, as-
suming that there is the power to
allow an appeal, is this a case in
which the special prerogative of
Her Majesty should be exercised?
“ Upon that ground their Lord-
ships have been unable to discover
any adequate grounds for the special
exercise of the prerogative.” . .
“If the particular value alone
is looked to ($300), there is not
that amount of injury which would
justify any special interposition of
the prerogative.
. “ But whether right or
Wrong, it is not a decision which
can have any bearing, or which can
occasion any inconvenience, with
respect to a large number of other
cases. .- .- .
“ It would be a departure from
the principles which should guide ”
their Lordships, “when advising
Her Majesty as to when an appeal
should be allowed, to advise that
an appeal should be allowed merely
for the purpose of testing the ac-
curacy of the construction put
upon a particular document, which
document, if it affects any number
of other cases, can be altered at the
will of the party who asks for the
exercise of the prerogative.”
During the argument, Lord
Cairns L.C., asked why should not
the difﬁculty be solved by altering
the form of the contract, and Dr.
Deane, for the petitioner, admitted
that might be done. Times, 11 Dec.
1877, 11a.
Then in Valin v. Langlois, 1879
[see ante, p. 18], Lord Selborne
said that it was necessary to show
both that the matter was one of
importance and also that there was
really a substantial question to be
determined.
Therefore these cases decided :—
(1) Is the case one in which the
prerogative should be exercised—
namely, is it one of gravity in-
volving matter of public interest or
law? ( 2) The value or stake ought
to be considered; that is, is it of
considerable amount, or affecting
property of large amount? (3) Has
the decision any bearing on a large
number of other cases? (4) Is
there a substantial question to be
decidel ? (5) There may be added
the case of T axatieu. Thus in Law-
less 72. Sullivan, in S. C. 15 April
1879, 3 S. C. R. 117, affirming
S. C. N. B. June 30, 1877; in P.- C.
22 Feb. 1881,- 6 App.- Cas. 3723;
50 L. J. P. C. 33; 44 L. T. 897
[where the decision of the courts
below was reversed], an appeal was
allowed, the question being whether
the Bank of British North America,
a corporation established in London
and out of the limits of the pro-
vince, was liable to be assessed
under the local Acts of New Bruns-
wick on its gross income within
the city of St. John, without taking
into account its losses [this had
been held to be the construction of
the Acts by Ritchie, C.J., Strong
and Taschereau, J J ., Henry, J .,
dissenting]. Leave to appeal
allowed. Order in Council, 29 N ov.
1879.
In PRINCE v. GAGNON, an appeal
from a judgment of the Supreme
Court, 22 June 1882, 7 S. C. R. 386
[Sir W. Ritchie, C.J., Strong,
Fournier, Henry, Taschereau, and
Gwynne, J J.], which reversed a
decision Q. B. Quebec of Sept. 18,
1881, 2 Dor. Q. B. 74, which had re-
versed the Sup. Ct. of Athaba-ska; in
P.C.Nov. 25, 1882, 8 App. Cas.103.
Lord Fitzgerald, in delivering judg-
ment [at which were present also
Sir Barnes Peacock, Sir R. Couch,
and Sir A. Hobhouse], said :—
“ The suit involved a question of
a sum of about £1,000. On one
side it was alleged that this sum
ought to be taken into account, as
it represented goods which were
given upon a contract of sale by
the father to the son on the occa-
sion of the father relinquishing
business in favour of the son at the
time of the son’s marriage. On
the other hand, it was alleged that
the transaction in question was not
THﬁeERGrL v.-
LANDRY.
PRINCE v'.-
GAGNON.
442
B.N.A. ACT, s. 101.--NO GRAVE QUESTION.
PRINCE v.
GAGNON.
a sale, and that it was a gift from
the father to the son, executed by
delivery of the goods in question to
the son. There was no doubt the
goods were manually delivered to
the son, and if it was intended
to be a gift, the fact of that exe-
cuted delivery, though without any
writing, would be quite sufficient to
vest the property in the son.” [This
was the same result as had been
come to by the S. C.]
His Lordship continued :—
“ Their Lordships having looked
into the case, see that it involves no
thing whatever beyond this £1,000.
There is no grave question of law
or of public interest involved in its
decision that carries with it any
after consequences, nor is it clear
that beyond the litigants there are
any parties interested in it. The
question for their Lordships to de-
termine is whether under such cir-
cumstances they will recommend
Her Majesty to grant to the peti-
tioners special leave to appeal.
Before the constitution of the Sn-
preme Court of the Dominion of
Canada there was a right to appeal
from the courts then in existence
where the value of the matter in
controversy was beyond £500, but
that does not apply to the S11-
preme Court. The language of the
legislature of the Dominion is:——-
‘The judgment of the Supreme
Court shall, in all cases, be ﬁnal
and conclusive, saving any right
which Her Majesty may be gra-
ciously pleased to exercise by virtue
of her royal prerogative”; and
their Lordships are not prepared to
advise Her Majesty to exercise her
prerogative by admitting an appeal
to Her Majesty in Council from
the Supreme Court of the Dominion,
save where the case is of gravity
involving matter of public interest
or some important question of law,
or affecting property of considerable
amount, or where the case is other-
wise of some public importance or
or a very substantial character.”
And applying the principles laid
down in Johnston 1). Minister of
St. Andrew’s and Valin v. Langlois,
refused the petition.
CrrY or MONTREAL 1:. Les
EcoLEsIAsTIQUEs DE ST. SULPICE.
In Q. B. Quebec, 27 Jan. 1888,
4 11011. B. 1; 32 L. O. J. 13;
which was reversed by S. C.
19 March 1889, 16 S. C. R. 392);
33 L. C. J. 197; inP. C. July 27,
1889, 14 App. Cas. 660; 59
L. J. P. C. 20; 61 L. T. 653.
This was a petition for special
leave to appeal. The action was
to recover $361.90, the amount of
a special assessment for a drain
made along theproperty of the de-
fendants, who contended that their
property, being an educational in—
stitution, was exempt from taxation
under 41 Vict. c. 6. s. 26. The
defendants maintained before the
Supreme Court that they had a
right to appeal to that court, the
matter coming under the words,
“\Vhere the rights in future may
be bound,” Supreme and Exchequer
Court Act, s. 29. The appeal of the
defendants to the S. C. being suc—
cessful, the City of Montreal applied
to the Judicial Committee for spe-
cial leave to appeal. Lord Watson
said [there being also present Lord
Hobhouse, Sir Barnes Peacock, and
Sir R. Couch] :—
“In considering applications of
this kind, it is necessary to keep in
view that the statute of Canada
38 Vict. c. 11., which established
the Supreme Courtof the Dominion,
does not give to unsuccessful liti-
gants a direct right, either absolute
or conditional, to appeal from the
decisions of that tribunal. Sec. 47
expressly declares that no appeal
shall be brought from any judg-
ment or order of the Supreme Court
to any court established by the
Parliament of Great Britain and
Ireland by which appeals or peti—
tions to Her Majesty in Council
may be ordered to be heard; but
saves any right which Her Majesty
may be graciously pleased to exer-
cise by virtue of her royal preroga-
tive. It is the duty of their Lord-
B.N.A. ACT, 5. 101.-A]?PEARING RIGHT.
443
ships to advise Her Majesty in the
exercise of her prerogative, and in
the discharge of that duty they are
bound to apply their judicial dis~
cretion to the particular facts and
circumstances of each case as pre
sented to them. In forming an
opinion as to the propriety of allow~
ing an appeal, they must necessarily
rely to a very great extent upon the
statements contained in the petition
with regard to the import and effect
of the judgment complained of, and
the reasons therein alleged for treat-
ing it as an exceptional one and
permitting it to brought under re~
view. Experience has shown that
great caution is required in accept-
ing these reasons when they are
not fully substantiated, or do not
appear to be primal facz'e estab~
lished by reference to the peti-
tioner’s statement of the main facts
of the case, and the questions of
law to which these give rise. Cases
vary so widely in their circum-
stances that the principles upon
which an appeal ought to be al_
lowed do not admit of anything
approaching to exhaustive deﬁni-
tion. N 0 rule can be laid down
which would not necessarily be
subject to future qualiﬁcation, and
an attempt to formulate any such
rule might therefore prove mis-
leading. In some cases, as in
Prince 7;. Gagnon, 8 App. Cas. 103,
their Lordships have had occasion
to indicate certain particulars, the
absence of which will have a strong
inﬂuence in inducing them to ad-
vise that leave should not be given,
but it by no means follows that leave
will be recommended in all cases
in which these features occur. A
case may be of a substantial cha-
racter, may involve matter of great
public interest, and may raise an
important question of law, and yet
the judgment from which leave to
appeal is sought may appear to be
plainly right, or at least to be un-
attended with sufﬁcient doubt to
justify their Lordships in advising
Her Majesty to grant leave to
appeal.
“The exemption which the Su-
preme Court has sustained in the
present instance is a statutory one.
The petitioners narrate the 7 7th
section of the Consolidated Statutes
of Lower Canada, cap. 15, and then
proceed to allege that the effect of
the ‘judgment will be ‘ to determine
the future liability (meaning. appa-
rently, non~liability) of buildings
set apart for purposes of education,
or of religious worship, parsonage-
houses, and charitable and educa—
tional institutions and hospitals, to
contribute to local improvements
carried out in their interests and for
the beneﬁt of their properties.’ Had
that statement been well founded,
it might have been an important
element in considering whether
leave ought to be given. But it is
plainly erroneous. The statute in
question, which relates to ‘ public
education,’ exempts the properties
above enumerated from educational
rates levied for the purposes of the
Act, and from no other rates.
“The clause upon which the
judgment of the Supreme Court
proceeded is see. 26 of the Statute
of the Province of Quebec, 41 Vict.
c. 6., which is an Act to amend the
laws respecting public instruction.
It enacts that ‘every educational
institution receiving no grant from
the corporation or municipality in
which they are situated, and the
land on which they are erected, and
its dependencies, shall be exempt
from municipal and school taxes,
whatever may be the Act or charter
under which such taxes are imposed,
notwithstanding all provisions to
the contrary.’ The seminary of
St. Sulpice admittedly does not re-
ceive any grant from the corpora-
tion of the city of Montreal, and is
, therefore within the beneﬁt of the
exemption created by see. 6, and
the only issue raised between the
parties is, ‘Vhether a district rate
for drainage improvements, levied
from that portion of the municipal
area which directly beneﬁts by its
expenditure, is or is not a municipal
tax Within the meaning of the
CITY OF .HoNJ-
TREAL 22. Les
ECCLESIAS-
TIQUES DE ST.
SuLPIcn.
4441
B.NA AC", 5 101.—-DECISIONS 0N TAXES.
CITY or‘ Mon‘-
TREAL 12. Les
EccLEsIAs-
TIQUES DE ST.
SULPICE.
GRAND TRUNK
RAILWAY Co. v.
BECKETT.
Clause? The petition does not set
forth the source from which the
petitioners derive their authority to
execute such improvements as drain-
age, and to assess for their cost.
Powers of that description are en-
trusted to municipal bodies, pre-
sumably in the interest of the pub-
lic, and not for the interest of private
owners, although the latter may be
beneﬁted by their exercise. Primd
facz'e, their Lordships see no reason
to suppose that rates levied for im-
provements of that kind are not
municipal taxes, and at the hearing
of the petition their impression was
conﬁrmed by a reference to the
general* municipal Acts for Lower
Canada. The counsel who appeared
for the petitioners stated, however,
that their powers are derived, not
from the general Acts, but from a
charter, the terms of which were
neither referred to nor explained.
If the terms of the charter materi-
ally diifer from those of the general
Acts, that deprives the case of any
general importance. But it is quite
possible that the concluding words
of sec. 6 may have been purposely
introduced by the legislature in
order to secure uniformity of ex-
emption, whatever might be the
terms in which the power to assess
was conferred; and that conse;
quently, in construing the clause,
the expression ‘municipal taxes ’
ought to be interpreted according
to its general acceptation, and not
according to the meaning which it
might be held to bear in some
charter or statutes applicable to
particular municipalities. In these
circumstances, their Lordships are
not prepared to advise Her Ma-
jesty that the petitioners ought to
have leave to appeal. If such
questions are, as they say, of fre-
quent occurrence in the city of
Montreal, they may have the oppor-
tunity of obtaining the decision of
this Board in another case, upon
appeal from the Court of Queen’s
Bench for the province. The
petition, therefore, must be dis-
missed.”
ST. LAWRENCE AND OTTAWA
RAILWAY Co. 0. Lara‘, 11 S. C. R.
422, and n. p. 449; in P. C. 20
March 1886 [present Lord Black-
burn, Lord Monkswell, and Sir Bi.
Couch]. An application for special
leave to appeal from the decision of
the S. C. was made. The action
was raised by the husband and
children for damages for the lO.~'S
of his wife and their mother at a
level crossing. The jury awarded
$5,800, which were divided between
the husband and ﬁve of the chil-
dren. The eldest child being 30,
and second child over 21, got no-
thing. The petitioners, the railway
company, contended that the plain;
tiﬁ must show pecuniary damage
resulting from the death of the per;
son killed, or loss of reasonable
expectation of beneﬁt, and this not
having been ‘shown no damages;
ought to have been given. That
actions of this kind were of‘ coil-
stant occurrence, and it was of
great importance to obtain a de-
cision from the highest tribunal.
Lord Blackburn said:' Their
Lordships did not grant lea've simply
because there was a dilierence of
opinion among the judges. The
majority of the judges of the Court
below had decided there was suffi-
cient evidence of loss to sustain the
action. The question now was
whether the present case was of
such gravity or importance as to
justify the Court breaking through
the ordinary rules. Their Lord-
ships did not think so. Applica=
tion refused. 6 Can. Gaz. 583.
GRAND TRUNK RAILWAY Co. v.-
BECKETT, 8 OR. 601 ; 13 O. A. R.
174:; 16 S. C. B. 713; in P. C.
22 July 1887 [present Lord Hob~
house, Sir Barnes Peacock, Sir J.
Hannen, and Sir B’. Crouch]. In
this case Beckett’s executor brought
an action for the death of Beckett
While driving a wagon over the
Grand Trunk Railway track. The
Railway Act of the Dominion pro-
vides that a- bell shall be ru-ng
B.N.A. ACT, s. lOL—JURY DECISION.
11455
and a whistle sounded on approach-
ing a level track. Some ‘of the
judges held these were statutory
obligations and ought to have been
complied with. Beckett’s life was
insured, and the judge directed the
jury to take that into consideration,
and they deducted the amount of
the policy, $2,500, from their award.
This direction was overruled by
the Court of Appeal and the S. C.
See Lord \Vatson’s opinion in the
next case, where his Lordship gives
the facts.
Application was made by the
Grand Trunk Railway to the J udi-
cial Committee for special leave to
appeal, stating the above facts, and
that four other actions depended
on this case. Lord Hobhouse, in
delivering the judgment of the
Board refusing leave, said the case
was not of sufficient public im-
portance to warrant leave. See
9 Can. Gaz. 394.
GRAND TRUNK RAILWAY Co. v.
JENNINGS, an appeal from Ct. of
Ontario, 6 Sept. 1887, 15 O. A. R.
477, affirming a decision of the
Q. B. Ont; in P. C. Aug. 4, 1888,
13 App. Cas. 800; 58 L. J. P. C.
1 ; 59 L. T. 679 [present, Earl of
Selborne, Lord Watson, Lord Hob-
house, and Sir Barnes Peacock].
In this case the C. J. and a jury
in Q. B. Ontario had awarded
$6,000 for the man’s death, not-
withstanding he had insured for
$2,000, of which the widow got the
beneﬁt. That decision had been
affirmed by the Ontario Court of
Appeal.
Lord \Vatson said (13 App. Cas.
802) : “The learned judges of the
Courts of Ontario considered them-
selves bound by the authority of
Beckett v. The Grand Trunk Rail-
way Co. [see above], which was
ﬁnally decided, on appeal from
Ontario, by the Supreme Court of
Canada. In that case, which was
very similar in its circumstances to
the present, the judge presiding at
the trial directed the jury to deduct
$2,500, the amount of an insurance
policy on the life of the deceased,
from the sum at which they esti-
mated the pecuniary loss sustained
by his wife and children through
his death, and the jury, follow-
ing the direction, assessed damages
at $3,250. An order obtained by
the plaintiffs to show cause why
the verdict should not be increased
by the sum of $2,500 so deducted
was made absolute by a Divisional
Court of the Queen's Bench, and
judgment entered for the plaintiffs
for the sum of $5,750 with costs.
In the Court of Appeal for Ontario,
and also in the Court of Appeal
for Canada, the case gave rise to
much difference of judicial opinion ;
but, in both, the decision of the
Divisional Court was upheld.
“ In this appeal the appellants
have raised precisely the same point
which they unsuccessfully pressed
in Beckett’s case. They have never
in the courts below suggested that
the receipt of the insurance money
by the widow was merely one of the
circumstances which ought to be
taken into account by the jury in
estimating her pecuniary loss ; their
contention has all along been, that
the primary duty of the jury is to
assess damages, irrespective of any
such consideration, and that the
court or the jury are then bound,
as matter of law, to deduct from
the damages assessed on that footing
the full amount paid to the Widow
under the policy. It is true that,
in the reasons of appeal appended
to their case, the appellants plead
alternatively that the jury ought
at least, in awarding such damages,
to take the receipt of the said
insurance money by the respondent
into their consideration; but liti-
gants who have accepted the pre-
siding judge’s refusal to give a
direction in law, which, if given,
would practically have withdrawn
the insurance money from the con-.
sideration of the jury, cannot be
permitted to impeach their verdict
for the ﬁrst time in a court of
review, on the ground that the
judge ought to have given a direc,
GRAND TRUNK
RAILWAY Co. r,
JENNINGS.
446
B.N.A. Aer, s. 101.—ARGUMENTS REVERSED.
GRAND TRUNK
RAILWAY Co. '0.
JENNINGS.
tion the very reverse of that for
which they insisted at the trial.
Unless, therefore, it can be shown
that every cent of the $2,000 paid
to the respondent on account of
the policy upon her husband’s life
must, as matter of law, be de-
ducted from the $6,000 found by
the verdict of the jury, the present
appeal must fail.” The above
would be sufficient for the purposes
of this section, but as these two
cases of Beckett and Jennings gave
rise to much difference of judicial
opinion in Canada, the following
part of the judgment, as to the
correct mode of calculating the
wife and children’s pecuniary loss,
1s given :—
Lord Watson continued: “In
Beckett’s case, as well as in the
present, all the courts below have
justly held that the right conferred
by statute to recover damages in
respect of death occasioned by
wrongful act, neglect, or default, is
restricted to the actual pecuniary
loss sustained by each individual
entitled to sue. In some circum-
stances, that principle admits of
easy apj'ilication; but in others, the
extent of the loss depends upon
data which cannot be ascertained
with certainty, and must necessarily
be matter of estimate, and, it may
be, partly of conjecture. ‘Vhen a
man has no means of his own and
earns nothing, it is obvious that his
wife or children cannot be pecu—
niary losers by his decease. In
like manner, when by his death the
whole estate from which he derived
his income passes to his widow or
to his child (as was the case in
l’ym 'v'. Great Northern Railway,
June 15, 1863, 2 B. & S. T59;
4 B. & S. 396), no statutory claim
will lie at their instance. A very
different case arises when the means
of the deceased have been exclu-
sively derived from his own exer-
tions, whether physical or intel-
lectual. It then becomes necessary
to consider what, but for the acci-
dent whichterminated his existence,
would have been his reasonable
prospects in life, work, and re-
muneration ; and also how far these,
if realised, would have conduced to
the beneﬁt of the individual claim-
ing compensation. Their Lord—
ships are of opinion that all cir-
cumstances which, though insutﬁ-
cient to exclude a statutory claim,
may be legitimately pleaded in
diminution of it, ought to be sub-
mitted to the jury, whose special
function it is to assess damage,
with such observations from the
presiding judge as may be suggested
by the facts in evidence. It appears
to their Lordships that money pro-
visions made by a husband for the
maintenance'of his widow, in what-
ever form, are matters proper to be
considered by the jury in estimating
her loss; but the extent, if any, to
which these ought to be imputed
in reduction of damages, must de-
pend on the nature of the provision
and the position and means of the
deceased. WVhen the deceased did
not earn his own living, but had an
annual income from property, one
half of which has been settled
upon his widow, a jury might
reasonably come to the conclusion
that, to the extent of that halt’,
the widow was not a loser by his
death, and might conﬁne their es-
timate of her loss to the interest
which she might probably have had
in the other half. Very different
considerations occur when the
widow’s provision takes the shape
of a policy on his own life, eﬁected
and kept up by a man in the posi_
tion of the deceased \Villiam J en~
nings. The pecuniary benefit
which accrued to the respondent
from his premature death, consisted
in the accelerated receipt of a sum
of money, the consideration for
which had already been paid by
him out of his earnings. In such
a case the extent of beneﬁt may
fairly be taken to be represented
by the use or interest of the money
during the period of acceleration,
and it was upon that footing that
Lord Campbell, in Hicks v. Newport
Railway Co.,17 Feb. 1857, 4 B. &S.,
B.N.A. ACT, s. 101.-LEAVE GIVEN BELOW. 447
note, p. 403, suggested to the jury
that, in estimating the widow’s
certain transactions alleged to have McDoueALL 1;.
taken place in respect to the shares. MCGREEVY-
loss, the benefit which she derived
from acceleration might be com-
pensated by deducting from their
estimate of the future earnings of
the deceased the amount of the
premiums which, if he had lived,
he would have had to pay out of
his earnings for the maintenance of
the policy. For these reasons their
Lordships are unable to atiirm that
the exception taken by the appel-
lants to the ruling of the presiding
judge is well founded. They are
not disposed to regret the result,
because it appears that the learned
judge excluded from the consider-
ation of the jury all chances of the
deceased having obtained a rise of
wages, or of his having been able
to make some further provision for
his widow.” Appeal dismissed.
The above two cases show the
extremely favourable position Cana-
dian litigants are in. For if an
appeal on a vexed question coming
from the Supreme Court of Canada
is not entertained by the Judicial
Committee, the same question, if
of the appealable value, can be
heard by the Judicial Committee if
it comes from the minor courts
direct.
McDoUeALL 'v. McGmmvY, see
14 L. R. 30. In P. C. 21 July
1888, present Lord Hobhouse, Lord
Macnaghten, Sir R. Couch, and Sir
Barnes Peacock.
This was an application to the
Judicial Committee to rescind an
order of the Q. B. Quebec giving
leave to appeal in an action brought
by the plaintiti' to recover damages
for the proﬁt made on the sale of
1,000 shares in the North Shore
Railway.
Judgment in the Sup. Ct. was
given in favour of the plaintiff
hfl'cGreevy.
The Q. B. affirmed the liability
of the defendant, but varied the
Sup. Ct. judgment, and directed a
reference to experts to ascertain
and certify to the Sup. Ct. as to
On McDougall lodging his appeal,
McCrreevy petitioned for its dis-
missal. He contended there was no
right of appeal, the matter being
an appeal from an interlocutory
judgment. Lord Hobhouse, in re-
fusing to rescind the order, said the
objection could be raised on the
hearing of the appeal, though their
Lordships at the present stage must
assume the judges were right in
giving leave to appeal. Petition
dismissed with costs, Queen’s Order,
10 Aug. 1888. 11 Can. Gaz. 39}.
Subsequently, 20 July 1889, see
15 Q. L. R. 198, and Queen’s
Order, 23 July 1889, the Judicial
Committee [Lord \Vatson, Lord
Hobhouse, and Sir R. Couch] re-
versed the judgments of both
courts below, and dismissed the
plaintiffs action, McCrreevy to pay
the costs of the appeal to the P. C.
In MAGURA v. MAGURA, Dec.
12, 1885, 6 Can. Gaz. 2118; Queen’s
Order, 29 Dec. 1885, the husband
had secured a divorce in America
for desertion, and the wife had
obtained against the husband ali—
mony in the Canadian court. The
husband asked leave to appeal.
The amount in question was above
the amount given in the Ontario
Act. The action was brought in the
Chancery Court, Ontario, by Mrs.
Ma-gura, and the defence set up
was that the husband had been
divorced in America and had mar-
ried again. The domicile of the
husband was Canadian, but the
American court of St. Louis had
found an equivalent to domicile and
had dissolved the marriage. The
respondent maintained leave ought
not to be granted, as the question
in the Canadian courts had pro—
ceeded on a question of fact. The
cotrt in Ontario held that, inas—
much as there was no bemijz'de
residence by the husban din America,
the decision of the American court
had been obtained by fraud.
The husband's counsel said there
MAGURA v.
MAGURA.
44:8 B.N.A. ACT, s. lOl.—-ALTHOUGH JUDGES DIFFER.
MAGURA v.
MAGURA.
might be a residence in America
which would give the American
courts jurisdiction, although the
parties still retained their Canadian
domicile. The American judg-
ment was a judgment within its
jurisdiction, and to these parties not
a foreign judgment, therefore it
cannot be examined on the ground
of fraud, and could not be inquired
1nt0.
Lord Monkswell said their Lord-
ships felt so much doubt and diffi-
culty about the case that they were
not prepared to differ from the
court below. It had been sug-
gested that an important and diﬂi-
cult question arose, namely, that
there might be a residence of
parties sutlicient to support the
jurisdiction in a case of this kind
which would not amount to domi-
cile. But this question did not
arise, inasmuch as both courts had
found on the preliminary question
of fraud that the decree was invalid.
Under these circumstances, it ap-
peared to their Lordships that there
was not sutlicient ground to grant
leave to appeal.
To obtain leave to appeal in a
question of fact it is very important
that their Lordships should have
all the materials before them. See
Canada Central Railway '0. Murray,
in S. C. May 1, 1882; 8 S. C. R.
313 ; in P. C. June 30, 1883,8 App.
Cas. 574, an action on account
brought by the respondent against
the railway company to recover
money due for fencing along the
line. In the S. C. it was held by
Fournier, Henry, and Gwynne,
JJ., aﬂirming the Ont. Ct., where
the judges being equally divided
the verdict in favour of the plaintiffs
stood, that a new trial ought not
to be granted, the decision not being
against the weight of evidence.
Ritchie, C.J., and Taschereau, J.
Were of a diﬁerent opinion, and
that there was no evidence that
Foster (a person appearing to act
as manager) had authority to bind
the railway company in the con-
tract he made,
Lord Watson [there being also
present Sir Barnes Peacock, Sir
Robert P. Collier, Sir Richard
Couch, and Sir Arthur Hobhouse]
said: Their Lordships are of opinion
that this application ought to be
refused. The case made by the
petitioners, the railway company,
is that they were not liable to the
plaintiff, Murray, as having em-
ployed him to make certain fencing
along the line. They allege that
that contract was made with a
gentleman of the name of Foster,
who was not only a servant of the
company, but a contractor with
the company, dealing with them as
an independent contractor. The
judge put the question to the jury,
Whether they were satisﬁed that.
the plaintiff contracted in the be-
lief that he was dealing with the
company ; and further put the ques-
tion to them, Whether the company
had fostered that belief, and dealt
with the plaintiff on the footing
that they had contracted with him ;
and in the event of the jury com-
ing in point of fact to the con-
clusion that both those questions
should be answered in the aﬁirma-
tive, he directed them that a ver-
dict should follow for the plaintiff.
The jury found for the plaintiﬂ’.
The questions that seem to have
been discussed in the courts below
may be said to be two: ﬁrst,
whether there was evidence to go
to the jury at all, making the peti-
tioners parties to the contract by
adoption or recognition; and, in
the second place, whether the evi-
dence was sufficient to establish the
fact that they had recognised or
adopted the contract, which was
admittedly made by Foster with
the plaintiff. There has been a
difference of opinion in the court
below. The majority of the judges
were of opinion that the verdict
was warranted by the evidence be-
fore the jury, and the course taken
by the judge was consequently not
only justiﬁable, but right. The
view taken by the minority of the
court was that there was no evi-
B.N.A. ACT, s. 101.—RULE LAID nowN.
449
dence to go to ‘the jury upon that
point—at least, no evidence of a
satisfactory description—and that,
therefore, the verdict of the jury
ought to be set aside and judgment
entered for the defendants. Now
the question before the Court was
whether there was evidence in point
of fact, and what was the effect of
that evidence. That the judges be-
low have differed upon a question of
fact in regard to an ordinary con-
tract of employment does not seem
to be any reason for permitting an
appeal, having regard to the terms
of the statute which now regulates
these appeals. Their Lordships are
also desirous in this case to lay
down the rule that they will in
future expect parties who are peti-
tioning for leave to bring an appeal
before this Board to state succinctly,
but fully, in their petition, the
grounds upon which they make that
demand. They certainly expect
that parties will conﬁne themselves
in future to the petition, and will
not wander into extraneous matter,
such as the record and proceed-
ings, over which this Board, until
an appeal is permitted and the
papers are sent to England by the
proper authorities, have no control,
and which they cannot accept on
an ex parte statement, which an
application of this kind is.” Peti-
tion refused.
The following are samples of
cases in which special leave
has been granted.
AT’L-GEN. or ONTARIO v. MER-
CER, Nov. 14, 1881, 5 S. C. R. 538,
reversing, 27 March 1880, 6 O. A.
B. 576, and Proudfoot, V.C., Jan.
1879, 26 Gr. 126. The question
was whether on the failure of heirs
of one Andrew Mercer, of Toronto,
who died in 1871, the province of
Ontario became entitled to his
estate as legislative assignee of the
Crown. The respondent claimed
the Dominion was entitled. Proud-
foot, V.C., decided an escheat
accrued for the beneﬁt of the pro-
vince and not for the Dominion.
S 2340.
The Appeal Court of Ontario affirm-
ed this, but the S. C. reversed,
giving judgment for the Dominion
as against the province. The ap—
pellant contended that lands in
Ontario were granted and are held
in fee and common socage, and
that an escheat was an incident of
tenure in socage, as it was of
tenure by knight service before the
12 Chas. II. c. 24. ‘ That before con-
federation, property of this nature
did not belong to Her Majesty
personally and for her private use,
nor to the empire at large, but,
like ungranted and unappropriated
wild lands, belonged to the province,
which still had all rights not ex-
pressly taken from them. The B.
N. A. Act did not repeal the old
constitutional Acts, or declare that
all enumerated rights possessed by
the province were to cease. The
right to lands escheated for want
of heirs was intended to be left to
the provinces. See secs. 109, 117 ,
post. Lands, mines, minerals,
royalties, and other property be-
longing to each province was
declared to be continued to belong
to them. All lands in Ontario
were held of the Crown, and not of
a mesne lord, and the Crown re-
tained in them the right of escheat.
If such escheats were prerogatives
of the Crown, then they belonged
to the province as royalties. The
respondent maintained that the
onus was on the province to show
escheats belonged to it, and that
they had failed to do. Real pro-
perty of subjects dying without
heirs escheated to the Crown jm'e
coronae. Since the passing of the
B. N. A. Act, the right of the
province could only be determined
by reference to the provisions of
that Act, and either the right to
escheats was given expressly to the
Dominion, or, not being given ex-
pressly to the province, belonged
for that reason to the Dominion.
If lands in Ontario escheated to
Her Majesty in right of her royal
prerogative, the Att.-Gen. of the
Dominion, and not the Att.-Gen.
FF
ATI‘.-GEN.- or
ONTARIO v.
MERCER.
450 B.N.A. ACT, s. IOL—BEASONS FOR SP. LEAVE.
ATT-.-GEN. or
ONTARIO 'v.
MERCER.
NASMITH v.
MANNING.
CALDWELL v.
MCLAREN. .
of the province, was the proper
person to represent Her Majesty.
The lands and minerals assigned to
the several provinces were such as
then belonged to the several pro-
vinces. Escheated lands could not
be regarded as “ royalties,” and
Her Majesty formed no part in the
provincial legislature, as she did in
the Dominion.
1883, 28 Jan. Lord Blackburn,
Lord Watson, Sir Barnes Peacock,
Sir R. Collier, and Sir R. Couch,
granted leave to appeal. 18 July
1883, additional documents were
allowed to be lodged. July 18,
1883, 8 App. Cas. '767, Earl of
Selborne, L.C., gave the judg-
ment, reversing the S. C., and said
it was some satisfaction the courts
of Ontario and Quebec agreed on
this question. His Lordship re-
ferred to Att.-Cren. of Quebec v.
Att.-Gen. of the Dominion, 8 Sept.
1876, Q. B. Quebec, 2 Q. L. R.
236, where Dorion, C.J., Monk,
Ramsay, Sanborn, and Tessier, J J .,
were unanimous in holding that
the Dominion Government had no
claim to the escheats there in ques-
tion, and reversed Sup. Ct. 29 Jan.
1876, 1 Q. L. R. 177 (Taschereau,
J See sec. 109, post.
In NASMITH 'v. MANNiNG, Feb.
12, 1881, 5 S. C. R. 417, aﬁirming
5 O. A. B. 126, reversing 29 U.
C. C. P. 34, the appellant was
a judgment creditor of a railway in
Canada, and he sued the respon-
dent as a shareholder therein for
calls. The S. C. held that the
document relied upon and signed
by the respondent was only an
application for shares, and that it
was necessary for the appellant to
have shown notice of allotment of
the shares to the respondent, which
he had not done.
1881 , July 2. Allowed—but the
case was subsequently settled. See
Cassel’s Digest, 1893, 890.
In CALDWELL v. MCLAREN,
Nov. 28, 1882, 8 S. C. R. 435,
reversing 5 O. A. R. 363, and re-
storing the judgment of the Court
of Chancery, Ontario. In this
case the respondent claimed to pre-
vent the ﬂoating of timber down a
stream, the stream not being such
a stream as would ﬂoat timber
without the artiﬁcial improvements
which the respondent had erected,
and that such a stream did not
come within the Canadian Act 12
Vict. c. 87. s. 5; C. S. U. C. c. 48.
s. 15; R. S. O. c. 115. s. 1; and,
secondly, that Boale v. Dickson was
in point.
1883, March 6. [Present Sir
Barnes Peacock, Sir R. Collier, Sir
R. Couch, and Sir A. Hobhouse]
It was stated the question affected
the navigation of nearly all the rivers
and streams of Canada, besides
various matters of revenue. Their
Lordships, considering the great.
public interest the case involved,
granted leave. Times, '7 March, 40.
The judgment allowing special
leave was as follows :—“ In the
case of Prince '0. Gagnon, from the
S. C. of the Dominion of Canada,
their Lordships said they were not
prepared to advise Her Majesty to
exercise her prerogative or admit
an appeal to Her Majesty in Coun-
cil from the S. C. of the Domin-
ion, save- where the case was of
gravity involving matters of public
interest or some important question
of law, or affecting property of con-
siderable amount, or where the
case was otherwise of some public
importance or of a very substantial
character. Their Lordships think
this case falls entirely within the
rule there laid down. The ques-
tion for their Lordships to consider
is; Is there a primd facz'e case
made to induce their Lordships to
grant leave to appeal from the de-
cision of the S. C. in this case?
The judges of the S. C. [Sir W.
Ritchie, C.J., and Strong, Henry,
Taschereau, and Gwynne, JJ
were unanimous; but they over-
ruled the decision of the Appellate
Court of the province, in which
the judges were almost unanimous
[Spragge, C.J.A., and Patterson
B.N.A. Aer, s. 101.—ARGUABLE CASE.
4:51
and Morrison, J J .A., Burton, J .A.,
dissenting], there being only one
who dissented. Looking at all the
circumstances of the case, their
Lordships think this is a case
which may be said to be arguable,
without expressing the slightest
opinion as to what may be the re-
sult of this decision. Their Lord-
ships have also taken into con-
sideration the fact that in this case
the rights of parties will not be
delayed. The plaintiff has got his
injunction, and the only difficulty
is with reference to the expenses of
this appeal. The appellants are
willing to bear that expense, and
they come to ask Her Majesty to
exercise her prerogative. Their
Lordships think that, under all the
circumstances, it would be right to
advise Her Majesty to admit this
appeal; but that is upon condition
of a suﬂicient sum being deposited
to bear the expenses. Looking to
the immense mass of paper here,
their Lordships think that the or-
dinary sum of £300 is hardly sufﬁ-
cient to cover the expense; they
therefore think that it ought to be
upon the deposit of the sum of
£500. There is one other point
to which their Lordships wish to
allude ; that is, the objection which
has been made to the jurisdiction
of the Dominion Parliament to
pass the law with reference to the
S. C. of Canada, and also the power
of the Supreme Court of Canada
to entertain such an appeal as
this, which involves a question of
the construction of the Acts of
the provincial Parliament. Their
Lordships do not think there is
any ground for allowing that ques-
tion to be raised on the hearing of
the appeal.”
Subsequently in P. C., April '7,
1884, 9 App. Cas. 392; 53 L. J.
P. C. 33, reversing S. C., held
that the right to ﬂoat timber down
streams extended to all streams,
even when such streams would
not be ﬂoatable without artiﬁcial
improvement. Boale v, Dickson
1863, 13 U. C. C. P. 337 [where
a person was held entitled to
charge a tell for use of a slide
in running timber where there
was not suﬂicient water to pass
timber without his dam and slide],
overruled.
MOODYVILLE SAW MILL Co.
AND BRITISH COLUMBIA TOWING
Co. v. SEwELL, 9 S. C. R. 527.
This was a suit brought by Sewell,
the owner of the sailing boat the
“ Thrasher,” against the above ap-
pellants, who are the owners of the
tugs “Etta White ” and “Beaver”
respectively, which were employ-
ed in towing the “ Thrasher ” with
a cargo of coal. The suit was
brought by Sewell for $80,000
damages for negligence in running
the “ Thrasher ” on to a rock in the
Gulf of Georgia. The ship arrived
in ballast at Royal Beads, British
Columbia, 22 May 1880. The mas-
ter thereupon entered into a con-
tract with the agents of the “ Bea-
ver ” to tow the vessel to Nana-imo,
and from thence to Cape Flattery
with coal, for $600. Arriving at
Nanaimo and loaded with coal 14
July 1880, the master of the
“ Beaver ” engaged the “ Etta
WVhite ” to assist in the towing. On
the 14th July they started, the two
tugs towing. The same night the
“Thrasher” struck on an unmark-
ed rock 1,200 yards outside rocks
marked on the chart as Gabriela
reef.
The several owners of the tugs,
though pleading separately, both
contended that, in accordance with
the Canadian Act, 31 Vict. c. 58.
12- (sce also 57 & 58 Vict. (Imp)
c. 60. 503), they were not liable
for an aggregate exceeding $38.92
per ton of their tug’s tonnage where
the loss has occurred without their
actual fault or privity.
Begbie, C.J., discharged the jury
before they had given any verdict
for either party, but they answered
several questions put by the judge.
On a motion for judgment, the
judge found for the defendants.
S. C. B. C. aﬂirmed the decision.
CALDWELL v.
MCLAREN.
MOODYVILLE
Saw MILL 00.
AND BRITISH
COLUMBIA
TOWING Co.
'v. SEwELL.
FF2
452
B.N.A. AcT, s. 101.--WHERE Ac'r IN QUES.
MOODYVILLE
SAW MILL Co.
AND BRITISH
COLUMBIA
TOWING Co.
v. SEWELL.
CoEroRA'rIoN
OF CITY OF
QUEEEo v.
QUEnEc GEN-
TRAL RAILWAY.
LEWIN v.
WILsoN.
On 16th Jan. 1884, S. C. set
aside the decision of S. C. B. C. and
gave judgment for $80,000.
Defendants appealed, and alleged
that the decision was contrary to
Smith v. St. Lawrence Tow Boat
Co., March 24, 1873, 5 L. R. P.
C. 308.
1884, 14 June. Leave granted.
CoRPoRA'rIoN OF THE CITY
OF QUEBEC v. QUEBEC CENTRAL
RAILWAY, June 23, 1884, 10 S. C.
R. 563, reversing Q. B., Quebec.
This was a claim on the part of
the Corporation of Quebec to rank
par-i passu with the Quebec Cen-
tral Railway on the proceeds of the
judicial sale of the Levis and Ken-
nebec Railway, of which 4311,- miles
were completed. The respondents
contended that they were not enti-
tled to this as 45 miles of the rail-
way had not been completed, a con-
dition precedent speciﬁed in the
Quebec Act 37 Vict. c. 23., and
necessary to legalise the issue of
the bonds of which the corporation
were the holders. A subsequent
statute, 39 Vict. c. 57., the S. 0.
held, had rendered these, the bonds
in question, valid, although the
conditions in 37 Vict. c. 23. might
not have been fulﬁlled. This
agreed with the corporation con-
tention that the legislature, which
in 1874 had authorized the issue of
the bonds only after 45 miles were
completed, had the right to declare
in 187 5 that those bonds were valid,
though issued before the comple-
tion of 45 miles.
1884. Leave granted to the
Central Railway Co. of Quebec to
appeal.
In LEWIN 2). WILSON, 9 S. C. R.
637, affirming the judge in Equity,
S. C. N. B., in a suit for the fore-
closure of a mortgage, the ques-
tion related to the construction and
application of sec. 40 of the Imperial
Statute of Limitations, 3 & 4 Will.
4. c. 27., and 7 Will. 4. & 1 Vict.
c. 28., which had been adopted and
re-enacted in New Brunswick, and
are respectively sees. 29 85 30, c.
84. of the C. S. of N. B., intituled
“An Act relating to the limitations
of real actions.”
1885, 13 June. Special leave
allowed. Subsequently, June 25,
1886, 11 App. Cas. 639; 55 L. J.
P. C. 75; 55 L. T. 410, reversed.
IN WINDSOR AND ANNAPOLIS
RAILWAY v. THE QUEEN AND
WESTERN CoUNTIEs RAILWAY,
Feb. 16, 1885, 10 S. C. R. 335,
reversing Gwynne, J ., in Ex-
chequer, the appellants claimed, by
means of a petition of right, dam-
ages against the Dominion for de-
priving them of the possession of a
railway. One of the questions was
whether an action for damages for
a tortious act did he by petition of
right against the Crown. The S. C.
held the Crown liable.
1885, 4 July. Special leave to
appeal was granted to the appel-
lants, on the ground that there was
involved the question whether
effectual relief by way of speciﬁc
performance was not awarded to
them; inasmuch as the amount
awarded to them by the Supreme
Court, namely, $95897, was wholly
inadequate for the damage caused
to them by being put out of pos-
session of the railway in question ;
secondly, that it was awarded on
an erroneous principle, namely,
that the appellants might recover
damages against the respondents,
the Western Counties Railway
Company, in respect of the period
that that railway company were
in possession of the line.
14 Nov., cross appeal allowed to
be presented. In the cross appeal
[present Lord Monkswell, Lord
Hobhouse, Sir B. Peacock, and
Sir R. Couch], the Attorney-
General for the Dominion set out
in his petition that the Windsor
and Annapolis Railway Company
raised this action against the
Canadian Government, citing
also the Western Counties Rail-
way Company, by petition of
right; that in the S. C. Ritchie,
B.N.A. ACT, s. 101.—LEAVE For. CRoss APP.
453
C.J., Fournier, Henry, and
Taschereau, J J . [Gwynne and
Strong, J J ., dissenting], held that
a petition of right lay against the
Crown, but the judges disagreed
as to the measure of damages—
Ritchie, C.J., and Taschereau, J .,
holding that the Windsor and An-
napolis Railway Company were
only entitled to damages for the
period they were out of possession
prior to the Western Counties
Railway being put into possession,
Henry and Fournier, J J ., holding
that the Crown was liable for the
whole period of the exclusion of
the Windsor and Annapolis Rail-
way Company out of possession;
that the damages of $95897 were
assessed on the footing of the ﬁnd-
ing of Ritchie, C.J., and Tasche-
reau, J .; that as leave to appeal
had been granted to the Windsor
and Annapolis Railway Company,
it would be of importance to
have also decided the question
raised by the Crown, namely, the
validity of the petition of right.
Subsequently the Judicial Com-
mittee, June 25, 1886, 11 App. Cas.
607; 55 L. J. P. C. 41; 55 L. T.
271, reversed the S. C. in so far as
it assessed the damages at 89,5897,
and found the suppliants, the appel-
lants, entitled to receive $115,000
from Her Majesty as damages by
reason of their having been de-
prived of possession of the railway
from 1 Aug. 1877 to 1 Dec. 1879.
Special leave was also allowed
in Moon 1). CONNECTICUT AND
MONTREAL LIFE AssURANCE Co.
The S. C., 13 Dec. 1879, 6 S. C. R.
634, reversed Ct. Appeal Ont. , 3 O.
A. R. 230, which had aﬂirmed a
decision (the judges being equal)
of the Q. B. Ont., 30 June 1877,
41 U. C. Q. B. 497, making ab-
solute a rule aim’ to set aside the
verdict found for the plaintiff in an
action on a life policy. The question
in the case was whether the insured,
who died from the effects of a bolt
falling on his head, had not truly an~
swered the questions propounded
to him on entering into the insur-
ance, and this involved the question
whether about 12 years before the
insurance he had had a piece of his
skull extracted. The jury found
that the deceased had only been
attended at the time in question for
some triﬂing ailment. The judge
entered up judgment for plaintiff.
Defendants applied for a new trial.
The Q. B. Ontario set aside that
decision and entered judgment for
the defendants. On appeal to the
Court of Appeal, Ontario, that
court was equally divided, and the
judgment for defendants stood.
The S. C. reversed this result,
and directed the original verdict
for the plaintiff to stand. This
was affirmed in the Privy Council,
7 July 1881, 6 App. Cas. 644.
Their Lordships said that the Board
could order a new trial to take
place if it thought it necessary [see
below], but, secondly, that in
“ order to justify the granting of a
new trial they must be satisﬁed the
evidence so strongly preponderates
in favour of one party as to lead
to the conclusion that the jury, in
ﬁnding for the other party, have
either wilfully disregarded the evi-
dence or failed to understand and
appreciate it.” As to the power of
the S. C. to order a new trial, Sir R.
Collier [there being also present
Sir Barnes Peacock, Sir M. E.
Smith, Sir R. Couch, and Sir A.
Hobhouse] said: “ The ﬁrst question
is whether or not the Court of Q. B.
(Ontario) were right in setting
aside the verdict for the plaintiff
and directing a verdict for the
defendants. Their Lordships have
no doubt that the Court of Q. B.
were wrong. In the Law Reform
Act of Canada (37 Vict. (Ont) c. 7.
ss. 32, 33) there is a provision that a
judge may direct the jury to make
certain speciﬁc ﬁndings, and himself
enter the verdict; and sec. 33 directs
that ‘ every verdict shall be con-
sidered by the court in all motions
affecting the same, as if leave had
been reserved at the trial to move in
any manner respecting the verdict,
M OORE v.
CONNECTICUT
AND MONTREAL
LIFE ASSUR-
ANCE Co.
41541
B.N.A. ACT, s. 101.-——FIN DING OF JURY.
Moomn v.
CONNECTICUT
AND MONTREAL
LIFE AssUR-
ANCE Co.
and in like manner as if the assent
of parties had been expressly given
for that purpose.’ It was under
that power that the Court of Q. B.
acted. Undoubtedly that court
had power to enter the verdict in
accordance with what they deemed
to be the true construction of the
ﬁndings, coupled, it may be, with
other facts which were taken as
admitted or were so clearly proved
that no controversy could arise
about them. But it is not in the
power of a court to enter a ver-
dict in direct opposition to the
ﬁnding of the jury upon a material
issue, and that is what the Court
of Q. B. have done. Putting aside
for the moment the other questions,
their Lordships referred to one
question only :-—‘ Had he any
serious or severe personal injury
which, through forgetfulness or in-
advertence, he did not communicate
to the company ? ’ The jury
answer that question ‘No,’ that is
to say, they ﬁnd that the assured
had no serious or severe personal
injury. The Court of QB, in
direct contradiction to the ﬁnding of
the ury, in effect find that he had had
a serious or severe personal injury.
So again with respect to the other
issue, the jury ﬁnd that he had not
been attended by . any physician
other than Dr. Sampson, the person
mentioned, for any disease, but
only for triﬂing ailments as dis~
tinguished from diseases; and they
further state that he answered the
question relative to his attendance
by medical men truly. The Court
of Q. B. in effect say that he had been
attended for disease, and that he did
not answer the questions truly.
Again a ﬁnding in opposition to the
ﬁnding of the jury. Their Lord-
ships are clearly of opinion that the
S. C. of Canada was right in re-
versing the judgment. The ques-
tion of a new trial remains, and a
new trial has been contended for
upon two grounds—misdirection,
and the verdict being against the
weightof evidence. With respect to
misdirection, it has been already ob-
served that the counsel for the de-
fendants, although he did insist that
the learned judge ought to have
taken the case upon himself out of
the hands of the jury, did not make
any objection to the direction to
the jury, assuming it to be a case
for them; and it has been further
observed that the rule does not
point to any misdirection, except
the not withdrawing the case from
the jury. It seems to their Lord-
ships, therefore, somewhat late for
this objection to be taken; but
assuming it to be open to the de—
fendants, their Lordships, after care-A
fully considering the summing up
of the learned judge and the ques-
tions which he put to the jury,
although no doubt those questions
may be open to some criticism, and
some form of words may be sug-
gested which might on the whole
be more apt, are unable to see that
the jury were in any way mis-
directed or misled. They are,
therefore, of opinion that a new
trial on that ground should not be
granted.
“ The last question is, whether a
new trial should be granted on the
ground of the verdict being against
the weight of evidence, and this is
one of more difficulty. The S. C.
of Canada were of opinion that
they had no power to direct a new
trial upon this ground, that power
being taken away from them by
sec. 22 of 38 Vict. c. 11., being ‘ An
Act to establish a Supreme Court
and a Court of Exchequer in the
Dominion of Canada.’ That sec-
tion is in these terms : ‘ When the
application for a new trial is upon
matter of discretion only, as on
the ground that the verdict is
against the weight of evidence, or
otherwise, no appeal to the Supreme
Court shall be allowed.’ It is
necessary to refer to two other sec-
tions. Sec. 17 : ‘ An appeal shall
lie to the Supreme Court from all
ﬁnal udgments ‘of the highest
court of ﬁnal resort, whether such
court be a court of appeal or of
original jurisdiction.’ Sec. 38 :
B.N.A. ACT, lei-NEW TRIAL REQUISITES. 4.55
‘ The Supreme Court shall have
power to dismiss an appeal or to
give the judgment, and to award
the process or other proceedings
which the court whose decision is
appealed against ought to have
awarded.’ If the last two sections
had stood alone, the Supreme Court
of Appeal in Canada undoubtedly
would have been entitled to make
any order or to give any judgment
which the court below might or
ought to have given, and, among
other things, to order a new trial
on the ground either of misdirec-
tion or the verdict being against
the weight of evidence. Their
Lordships have to consider whether
this power, conferred by these two
sections, is taken away by the
22nd section, or, in other words,
whether the 22nd section applies to
a case of this kind. It is true that
an application was made to the
court below for a new trial, but
not only for a new trial; it was
also an application, and this
was the main point of the appli_
cation, to enter a verdict for
the defendants. The Court of
Q. B. were of opinion that the
defendants were entitled in point
of law to have a verdict entered for
them, and did not apply their
minds to the question of the grant-
ing or withholding of a new trial,
nor did they exercise their discre-
tion upon that subject. No appeal
is brought in this case against the
exercise or non-exercise of the dis-
cretion of the inferior court. It
seems to their Lordships that see. 22
applies only where an appeal is
brought from a judgment of the
court below in which they have
exercised a discretion, and that as
no such judgment was given, and
no appeal on that subject has been
brought in the present case, the
power of the court was the same as
if no application had originally
been made for a new trial, and that
the S. C. could have ordered a new
trial on the ground of the verdict
being against evidence if the Court
of Q. B: ought to have done so.
However, this question ceases to
be of any general importance, an
MQORE v. '
CoNNEo'rIcU'r ‘
AND MoNTREAL
Act recently passed enabling the LIFE ASSUR_
court to exercise this very power Am]; ()0,
[see 43 Vict. c. 34. s. 4.; R. S. C.
c. 135. s. 61.] Their Lordships
may observe that there is a section
in the local Act [sub-sec. 3, s. 18,
R. S. O. c. 38.; see R. S. O. 1887
c. 44.] not precisely in the same
terms but to the same effect, limit-
ing the jurisdiction of the Appellate
Court of Ontario, with respect to
which they take the same view, in
accordance, as they understand,
with the view of the Appellate
Court of Ontario. Be this as it
may, it has not been disputed that
their Lordships have the right, if
they think ﬁt, to order a new trial
on any grounc.” His Lordship
then said it had been a question
requiring serious consideration
whether or not that power should
be exercised in this case: that the
evidence on the side of the defend-
ants rather preponderated, but that
was not enough to justify their
Lordships in granting a new trial.
His Lordship then continued:
“ Their Lordships are unable to
say in this case that the evidence
was not so clear or so strong in
favour of the defendants as to lead
them to ” the conclusion the jury
had wilfully disregarded or mis-
understood the evidence. “ Taking
into consideration, moreover, that
the company have all along con-
tended, not for a new trial, for
which they seem to have insisted
almost for the ﬁrst time here, but
that they were entitled in point of
law to have a verdict entered in
their favour, their Lordships do not
_ deem it their duty to send the case
to a new jury, and thus probably re-
commence a long litigation.” De-
cision of the court below affirmed,
and appeal dismissed with costs.
SUN FIRE OFFICE v. HART, from
the Windward Islands. Special
leave was granted, and a new
trial granted Feb. 16, 1889, 14
App. Cas. 98; 58 L. J. P. C. 69;
Sun FIRE
OFFICE v.
HART.
456
B.N.A. ACT, s. 101.-LEAVE AND COSTS.
SUN FIRE
OFFICE v.
HART.
JENoURE Iv.
DELMEGE.
60 L. T. 337. This was an ap-
peal from a judgment given at
Barbadoes, 17 June 1887. It was
under the appealable value, but
special leave was allowed on the
ground that its decision was of
general importance to ﬁre in-
surance companies. One condition
of the policy was that if anything
was done on the premises, &c.,
insured to increase the risk. “If
by reason of such change or form,
or any other cause whatsoever,”
the company should desire to ter-
minate the insurance it should be
lawful for it to do so. Fires oc-
curred on the insured plantation, and
on an anonymous letter threatening
further incendiarism being shown
to the company’s agent, the com_
pany gave notice to terminate the
policy. They paid all the losses
up to that date. Afterwards another
ﬁre occurred. The plaintiff claimed
the policy was still in existence.
On March 7, 1887, Reece J ., held
the question was one of law and
gave judgment for the plaintiff.
Defendants obtained a rule to show
cause why the verdict should not
be set aside, and instead thereof a
new trial granted. The same
judge discharged this rule, and his
decision was affirmed by the Court
of Appeal for the ‘Vindward
Islands, consisting of three judges.
Lord Watson said [there being also
present Lord Fitzgerald, Lord
Hobhouse, Lord Macnaghten, and
Sir W. Grove]; “The necessary
legal result of their Lordships’
opinion is that the judgment ought
to have been entered for the de-
fendants, who are appellants here,
of the trial of the muse. But the
appellants, in the court below, only
moved for a new trial, and the
judgment appealed from was given
with reference to that motion. The
case must therefore go back to the
Court of Common Pleas for Bar-
badoes, in order that the proper
order may be pronounced. Accord-
ingly their Lordships will humbly
advise Her Majesty to reverse the
judgment appealed from, to make
the rule m'si obtained by the appel-
lants absolute, and to order the
plaintiffs (respondents) to pay to the
defendants (appellants) the costs in
the courts below.” “Seeing that
this appeal was brought by special
leave, being below appealable value,
on the ground that its decision was
of general importance to insurance
offices, their Lordships think that
there ought to be no order as to
costs here.”
A new trial also ordered in
Campbell 2). Commercial Banking
Co. of Sydney, Feb. 15, 1879.
New trial also in The Trustees and
Executors Corporation 0. Short,
1 Aug. 1888,13 App. Cas. 793;
and in Jenoure c. Delmege, 19
Dec. 1890, [1891] A. C. 73; 60
L. J. P. C. 11, an action for libel.
The Judicial Committee [Lord
Macnaghten, who delivered judg-
ment, Sir Barnes Peacock, Sir
R. Couch, and Lord Shand] granted
a new trial on the ground of mis-
direction on a material point,
namely, that the defendant claim-
ing the communication was privi-
leged, that it lay on defendant
to prove affirmatively that he hon-
estly believed the statements con-
tained in the alleged libel to be
true, and that unless and until that
was made out by him to their
satisfaction, it was not incumbent
on the respondent to prove express
malice. Lord Macnaghten said:
“Their Lordships are of opinion
that no distinction can be drawn
between one class of privileged
communications and another, and
that precisely the same considera-
tions apply to all cases of qualiﬁed
privilege. ‘ The proper meaning
of a privileged communication,’ as
Parke, B., observes, Wright 2:.
Woodgate, 2 C. M. & R. 597, ‘is
only this: that the occasion on
which the communication was made
rebuts the inference primd facie
arising from a statement prej udical
to the character of the plaintiﬁ, and
puts it upon him to prove that
there was malice, in fact—that the
defendant was actuated by motives
B.N.A. ACT, s. 101.-—NEW TRIAL ON TERMS.
4157
of personal spite or ill will, inde-
pendent of the occasion on which
the communication was made.’
There is no reason why any greater
protection should be given to a
communication made in answer
to an inquiry with reference to a
servant’s character than to any
other communication made from
a sense of duty, legal, moral, or
social. The privilege would be
worth very little if a person making
a communication on a privileged
occasion were to be required in the
ﬁrst place, and as a condition of
immunity, to prove aiﬁrmatively
that he honestly believed the state-
ment to be true. In such a case
bona jz'des is always to be pre-
sumed.” His Lordship then cited
the following passage from Cotton,
L.J., in Clark 7;. hIolyneuX, 3 Q.
B. D. 237 (a case not of master and
servant, but of a communication vo-
lunteered from a sense of duty) :—
“ The burden of proof lay upon the
plaintiff to show that the defen-
dant was actuated by malice, but
the learned judge told the jury that
the defendant might defend himself
by the fact that these communica-
tions were privileged, but that the
defendant must satisfy the jury that
what he did he did bond ﬁde, and
in the honest belief that he was
making statements which were true.
It is clear that it was not for the
defendant to prove that he was
acting from a sense of duty, but
for the plaintiff to satisfy the jury
that the defendant was acting from
some other motive than a sense of
duty.” Lord Macnaghten then
continued: “Their Lordships are
therefore of opinion that there was
a misdirection on a material point,
which may have led to a mis-
carriage. Indeed, it is difﬁcult to
see how the jury could have done
anything but ﬁnd for the plaintiff,
having regard to the way in which
the question was presented to them.
The jury were told that it was for
the defendant to prove that he
honestly believed the statements
in his letter to be true, Whereas the
letter itself put those statements for- JENOURE v-
Ward, not as matters of the truth DELMEGE-
of which the writer had satisﬁed
himself, but as matters calling for
inquiry and consideration by the
proper authorities.” New trial or-
dered, but on the terms that plea
of justiﬁcation should not be raised
again.
\Vhere two contradictory judg-
ments arising out of the same
collision, their Lordships will ex-
amine the evidence as to which
decision the weight of evidence
tends, and may not send the case
back for a new trial. Thus in
Australian Steam Navigation Go.
(the “Birksgate”) v. Smith &
Sons (the “ Barrabool ”), from S. C.
N. S. ‘V., in P. G. May 21, 1889,
14 App. Gas. 321; 58 L. J. P.
C. 101, a collision occurred between
the above two ships. The evidence
available was the same in each; yet
there were separate trials. In one
trial the ury found one ship wholly
to blame, and in a counter-action
the jury found the other ship wholly
to blame. Lord ‘Vatson said [there
being also present Earl of Selborne,
Sir Barnes Peacock, and Sir R.
Couch]: “ In cases like the present
it appears to their Lordships that
the fact of opposite verdicts having
been found by two different juries
does not devolve upon the court
the duty of exercising the func-
tions of a jury, and of deciding
the actions upon their merits. It
also appears to them that the decli-
nature of the parties to submit the
decision of their counter-claim to
the same jury ought not to im-
pose upon the court the necessity
of issuing two decrees, which are
absolutely self-contradictory, where
that course can be avoided. The
parties may, no doubt, acquiesce in
both verdicts, and in that case ju-
dicial effect must be given to them.
But where, as here, new trials are
moved for in both actions, the
court has the opportunity of doing
complete justice between the
parties. When the evidence led
in each is so fairly balanced that
458
B.N.A. AoT, s. 101.-“_PERIL or SEA” cAsE.
J ENoURE v.
DELMEGE.
" BANK or
MONTREAL '0.
SWEENY.
GREAT \VEs-
TEaN INSURANCE
Co. 0. JORDAN.
NORTH-WEST
TRANSPORTA-
TION Co. '0.
HENRY BEATTY.
a jury might reasonably ﬁnd either
way, their Lordships are of opinion
that both cases ought to be tried
again, not separately, but together.
If, on the other hand, the verdict
in one action is warranted by the
evidence, and in the other is ‘against
evidence ’ in the ordinary sense of
the term, their Lordships see no
reason why the one should not
be allowed to stand and the other
be set aside.” His Lordship then
considered whether the verdict re-
turned at the ﬁrst trial could stand,
and, ﬁnding it could not, said it
must be set aside. Judgments
aﬁirmed and appeal dismissed.
BANK or MONTREAL e. SwEENr.
Allowed because there was a ques-
tion of whether English or French
law should prevail. One Sweeny
allowed certain shares to be placed
in the name of Rose in the books of
a joint stock company. They had
the words “in trust” attached to
them, and a certiﬁcate was given
for these shares to “James Rose
in trust.” Rose pledged the shares
without Sweeny’s knowledge. The
Q. B. Quebec held that under
French law Sweeny was not en-
titled to recover. Majority of the
S. C. held Sweeny was entitled to
recover.
1885, 12 Dec. [Lord Monks-
well, Lord Hobhouse, and Sir R.
Couch] Leave granted; and ulti-
mately, June 25, 1887 . the decision
of S. C. was aﬁirmed. The law
being the same as in England,
namely, that a transferee from a
holder “in trust ” is bound to make
inquiry. 12 App. Cas. 61’7 ; 56 L.
J. P. C. '79; 56 L. T. 897.
In NORTH-WEST TRANSPORTA-
TION Co. v. HENRY BEATTY,
April 9, 1885, 12 S. C. R. 598,
reversing 11 O. A. R. 205, and
restoring 6 O. R. 300. The claim
in the action was to set aside a
sale made to the company by James
Hughes Beatty, one of the directors
of the company, of a steamer called
the “ United Empire,” of which
previously to such sale he was sole
owner. The company had lost a
steamer and required another. At
a meeting at which all the directors
except Beatty were present, a bye-
law was passed for the purchase of
the “ United Empire”; and at a
subsequent meeting of the share-
holders the bye-law was read and
passed. At this meeting J. H.
Beatty held an actual majority of
all the shares in the company, so
J. H. Beatty’s own votes procured
the passing of the ‘bye-law. The
S. C. held the purchase was illegal.
On the company appealing, 10
July 1886, special leave to appeal
allowed.
Subsequently the decision of
S. C. reversed, July 21, 1887,
12 App. Cas. 589; 56 L. J. P. C.
102; 57 L. T. 426, on the ground
that it was within the competency
of the shareholders to accept the
contract of purchase, and the ma-
jority of votes must prevail unless
brought about by unfair or im-
proper means, but there was no—
thing unfair in J. H. Beatty
exercising the voting power the
very constitution of the company
enabled him to acquire.
THE GREAT WEsTERN INSUR-
ANCE Co. '0. JORDAN, 22 S. C. N.
B. 421, 22 June 1886, 14 S. C.
R. 734, reversing [Henry, J ., dis-
senting] the court below. A ves-
sel, on her way to Miramichi, was
chartered for a voyage from Nor-
folk, Virginia, to Liverpool. She
arrived at Miramichi on Nov. 25th
and sailed on the 29th. She could
not get out of the river owing to
the ice, and remained frozen in all
the winter. and she and her cargo
of cotton had to be abandoned.
The S. C. held that the loss was
not a loss by “ perils of the sea,”
covered by an ordinary marine
policy.
1886, Feb. 12. Special leave
given by the Judicial Committee.
See 8 Can. Gaz. 464.
B.N.A. AoT, S. 101.—NOTICE or APP. To DOM. 4.59
In THE CoRPoRATIoN OF PARK-
DALE '0. WEST, June 8, 1886, 12
S. C. R. 250, reversing 12 O. A. R.’
393, and restoring 8 O. R. 59, the
question in issue was whether the
appellants were liable to the re-
spondent for damage to the pre-
mises of which he was owner, by
reason of the construction of a
subway in Queen Street, a street
partly in Toronto and partly 1n
Parkdale. The Ontario Act 46
Vict. c. 45. authorized the munici-
palities of Toronto and Parkdale
to agree with the railway companies
whose railway ran into the city for
the construction of railway sub-
ways, paying compensation for in-
jury done. The appellants alleged
that the acts had been legally done,
pursuant to the requirements of the
Railway Committee of the Privy
Council of Canada, acting under the
Dom. Act 46 Vict. c. 24., and
denied that they had acted under
the Ontario Act, and that they were
agents of the railway companies,
to whom the respondent must look
for, compensation. The respondent
contended the appellants had not
complied with secs. 8 and 9 of the
Con. Rail Act (Dom.) of 1879,
and thus they had no authority for
executing the work except under
the Ontario Act, and upon the
terms of paying compensation.
1886, July 10. Leave given to
appeal.
Subsequently the appeal was dis-
missed, July 27, 1887, 12 App.
Cas. 602; 56 L. J. P. C. 66; 57
L. T. 602.
Leave was also granted in :—
CITIzENs’ INsURANoE Co. v. PAR-
SoNs, a case affecting insurance
companies’ conditions in policies of
insurances, and the result was a
reversal of the decision arrived at
by the S. C. judges; There was a
Dominion Act and an Ontario Act
(39 Vict. (Ont.) c. 24.), and it was
held the Ontario Act was valid. [See
ante, sub-sec. 13, sec. 92, p. 258.]
In ATT.-GENERAL or BRITISH
COLUMBIA v. ATT.—GENERAL OF
CANADA, there the question was
as to the property in mines and
minerals situate in the province
~whether they belonged to the
Crown as represented by the Do-
minion, or to the Crown as repre-
sented by the provinces. April 3,
1889, 14 App. Cas. 295; 58 L. J.
P. C. 88. [See Note,post, sec.109.]
The Judicial Committee may
suggest the intervention of the
Dominion or provincial Attorney-
General, as in old cases it suggested
the citing of the East India Co.
In ST. CATHERINE’s MILLING
Co. v. THE QUEEN AND THE
ATT.-GEN. or ONTARIO, Dec. 12,
1888, 1% App. Cas. 46; 58 L. J.
P. C. 54; (30 L. T. 197 [see ante],
the question there concerning the
ownership of the Indian Reserve
Lands in the province of Ontario.
1887, July 22. [Present, Lord
Hobhouse, Sir Barnes Peacock,
Sir James Hannen, and Sir R.
Couch] Mr. Haldane, who re-
presented the Att.-General of On-
tario, suggested that the Dominion
Government ought to be repre-
sented, as it was doubtful if the
important and constitutional ques-
tion at issue could be dealt with in the
most practical manner by an action
in which a private company and the
province were alone represented.
Lord Hobhouse, in expressing their
Lordships’ sanction to the appeal,
said: “ This case affects a territory
so large that there would in all
probability be other cases, therefore
it would be convenient to advise an
appeal, and their Lordships would
be glad if the suggestion of Mr.
Haldane was carried out, that
the Dominion become a party to
the case.” The Dominion did he-
come a party. See Times, 23 July,
1887, 512, and 9 Can. Gaz. 394.
LA BANQUE D’HoeIIELAeA v.
MURRAY, from Q. B. Quebec, 19
May 1888. The bank claimed that
ATE-GEN. or
BRITISH
COLUMBIA v.
ATT.—GEN. or
CANADA.
ST. CATHE-
RINE’s MILLING
Co. '0. QUEEN
AND ATT.-GEN.
or ONTARIO.
CITIZENS’
INSURANCE Co.
v. PARsoNs.
4.60 B.N.A. AcT, s. io'r-IE JUGTS. INcoMPLETE.
LA BANQUE
D’HocIIELAeA
v. MURRAY.
CLARKsoN 1:.
RYAN.
the defendants, by signing the
memorandum of association,—no
matter how the letters patent had
been obtained, bonc’iﬁde or fraudu-
lently—were liable. One L. had
presented a petition for incorpora-
tion of a company, falsely stating
that certain persons had promised
to come into the company if the
Government gave a subsidy, and
that they had come in and sub-
scribed. This was entirely false.
On the contrary, they had with-
drawn on the Government refusing
to grant a subsidy. The bank had
advanced money to the company,
and now sought to put the de-
fendants on the list of contribu-
tories.
1890, April 25. Lord Halsbury,
L.C. [there being also present
Lord Brainwell, Sir Barnes Pea-
cock, and Sir R. Couch], said:
If the Crown was deceived, the
whole letters patent must be de-
clared void. They could not be de-
clared void in part. [Lord Bram-
well: The Attorney-General of
Quebec should help the court out
of the difficulty] Bompas, Q.C.,
who appeared for the alleged share-
holders, said: If the case was ad-
journed he would communicate
with the Attorney-General, but
he suggested that the Committee
might absolve the respondents from
liability, and abstain from dealing
with the other points raised in the
judgment. [Lord Halsbury, L.C. :
N 0; that would be very irregular.
It would, in fact, lay down a pre-
cedent for revoking letters patent
in part] [See 14 & 15 Can. Gaz.
251, 270: 322 respectively]
On June 25, 1890, 15 App. Cas.
414; 59 L. J. P. C. 102; 63 L.
T. 63, Sir Barnes Peacocl<,deliver-
ing judgment, said: The Court of
Q. B. annulled the letters patent
only so far as the respondents were
concerned, but their Lordships are
of opinion that the code does not,
in such a case as the present,
authorize a partial annulment of
letters patent. The facts were quite
suﬁicient to warrant a total annul-
ment of the letters patent. “ It
would be a great miscarriage of
justice if the respondents should
be held conclusively bound by a
false recital in the name of Her
Majesty in letters patent obtained
by means of a false and fraudulent
suggestion, veriﬁed by a false afﬁ-
davit, and should be compelled to
pay the unpaid amount of shares
for which they were never sub-
scribers, and of which they were
never the holders. Her Majesty
has the right under the Code of
Civil Procedure (arts. 1034 and
1035) to demand, by her Attorney-
General, the annulment and repeal
of letters patent obtained by means
of any fraudulent suggestions, and
this demand the Attorney-General
of Quebec had, in the opinion of
their Lordships, made in Her Ma-
jesty’s name. Their Lordships,
having decided that the letters
patent cannot be partially annulled,
are bound to advise Her Majesty
to order that they be entirely an-
nulled, and to amend the judgment
of the Q. B. on the information for
the Writ of scire facias, in accord-
ance with that view. The letters
patent being annulled, there is an
end of the action at the suit of the
bank and of the interveners (the
liquidators) against the defendants
(respondents), as shareholders in
the incorporated company.” J udg-
ment amended accordingly.
In CLARKsoN 1:. RYAN, June 12,
1890, 17 S. C. R. 251, it was held
that the S. C. was not bound by
the Ontario Legislature (Ont. Jud.
Act, 1881, s. requiring that
leave should be obtained from the
Ontario Ct. to appeal to the S. C.
when the amount in controversy
was under $1,000. Sir W. Ritchie,
C.J., said : “ The matter has been
before this court more than once,
appeals from Ontario being ob-
jected to on the ground that leave
has not been granted under the
Ontario Act, and it has been stated
most unequivocally that this court
is not bound by the Act. If it is,
B.N.A. ACT, s. 101.—CASES OF ASSESSMENT.
461
then each province could legislate
so as to take away the jurisdiction
of this court altogether.”
NORTH SHORE RAILWAY v.
PION, June 20, 1887, 14 S. C. R.
67 7, reversing Q. B. Quebec, 12
Q. L. R. 205. The North Shore
Railway being allowed by Cana-
dian law to run their line along the
shore between high and low water
mark, were sued by Pion, a tanner,
for obstructing his access from his
lands to the river St. Charles, a
tidal navigable river within the
limits of the harbour of Quebec.
The S. C. held the railway com-
pany liable in damages, reversing
the Q. B. Quebec, which had in its
turn reversed the Superior Court.
1887, 22 July. [Present, Lord
Hobhouse, Sir James Hannen, Sir
R. Couch, and Sir Barnes Peacock]
Leave granted. If the order in
Canada is not drawn up, and it is
necessary to obtain special leave to
appeal on the ground that such
special leave will stay execution in
a similar case in Canada, their
Lordships may, in refusing leave
until the formal order is drawn up
(as in this case they did),make a
minute to the effect that the peti-
tion should stand over, with leave
to amend after the formalities had
been gone through in Canada, a
copy being supplied to the peti-
tioners, which they could show
those concerned in Canada that
such appeal had been presented.
9 Can. Gaz. 394. '
Ultimately the Judicial Com-
mittee, 1 Aug. 1889, 14 App. Cas.
612; 59 L. J. P. C. 25; 61 L. T.
525, affirmed the S. C.
In CoRPQRATIoN on ST. J onu’s
21. CENTRAL VERMONT RAILWAY
C0.,June 20, 1887, 14 S. C. R. 288,
Ritchie, C.J., Strong, Henry, and
Gwynne, J J ., against Fournier and
Taschereau, J J ., reversing Q. B.
Quebec, 27 March, 1886, and Sup.
Ct., 10 March 1885. The S. C.
found the assessment void. The
question concerned an assessment
made by the Corporation of St.
John on the railway property of
the Central Vermont Railway, es-
pecially as to the assessment on
the railway tracks and part of a
railway bridge within the limits of
St. John’s. This bridge crossed
the navigable river Richelieu and
connected the town of St. J ohn’s
and the town of Iberville. The
railway company submitted that as
the bridge crossed a navigable river
under the sole control of the Do-
minion under the B. N. A. Act, it
was not subject to taxation by the
municipality, the real point being
whether or not anything more of
the land on which the superstruc-
ture of the railway is placed can be
assessed in addition to the land it-
self. Ritchie, C.J., held that the
legislature had carefully protected
railways from any local assessment
beyond the mere value of the land
apart from, and independent of, the
roadway with its superstructure.
The question thus involved the
construction of the 98th section of
44 Vict. (Quebec) c. 62.,which con-
solidates the Acts incorporating the
town of St. J ohn’s, and which im-
ported certain sections of the “ Town
Corporation General Clauses Act,
1876,” 40 Vict. c. 60. ss. 326,
327, 370.
1887, Dec. 17. [Present, Lord
Fitzgerald, Lord Hobhouse, Sir
Barnes Peacock, and Sir R. Couch]
According to the order giving
special leave to appeal, the peti-
tioners, the Corporation of St.
J ohn’s, stated that “If the judg-
ment of the S. C., contrary to the
view of both courts in the province,
and to that of the two French
judges in the S. C. (Fournier and
T aschereau,J J .)is correct, the power
of taxation of the municipalities in
the province of Quebec is greatly
limited. and that whether it is by
law so limited is a question of
great and general importance.”
July 25, 1889, 14 App. Cas.
590; 59 L. J. P. C. 15; 61 L. T.
441, Lord Watson, delivering a
judgment aﬁirming the decision of
N ORTH SHORE
RAILWAY v.
Pion.
CORPORATION
on ST. J oHu’s
21. CENTRAL
Vnnnou'r
RAILWAY Co.
462
‘B.N.A. ACT, s. 101.—-ARGUING ON FACTS.
CoRroEATIoN
OF ST. J oHN’s
'0. CENTRAL
VERMONT
RAILWAY Co.
SHEO SINGH
RA! v. Mussu-
MUT DAKHO.
the S. C. [there being also present
Lord Bramwell, Lord Hobhouse,
' Sir Barnes Peacock, and Sir R.
Couch], after referring to the above
extract from the order, said: “ Their
Lordships would not have made any
reference to these initial proceed-
ings had it not been that, at the
hearing of the appeal, their time
was chieﬂy occupied by an endea-
vour on the part .of appellant cor-
pora-tion to argue that, as matter
of fact, they had not, in any of the
yearly rolls upon which these assess-
ments were made, valued aught be-
yond the land occupied by the
railway, and that they did not de-
sire to include, and had not in-
cluded, the bridge or other super-
structures in the estimate. Their
Lordships purposely abstain from
laying down any rule as to the
points which an appellant may com-
petently raise under an appeal by
leave from the Supreme Court of
Canada. That must depend upon
the special circumstances of each
case.
“ But it must be understood that
parties who get such'leave, upon
the distinct representation that they
desire to raise a particular question
of law of great and general im-
portance, cannot be permitted, at
the hearing of the appeal, to change
front and say that no such question
arises, and to argue that the case
turns upon a question of fact which
the Supreme Court has wrongly
assumed or decided. If the apel-
lant corporation, in petitioning for
the exercise of Her Majesty’s pre-
rogative, had stated the same case
which they attempted to present in
argument, it is almost matter of
certainty that leave to appeal would
have been refused.”
In reference to the above, in
SHEo SINGH RAI v. MUssUMU'r
DAKHO, April 13, 1878, L. R. 5
Ind. App. p. 114, Sir M. E. Smith
[there being also present Sir James
Colvile, Sir Barnes Peacock, and
Sir R. Collier], in delivering the
judgment, and after stating the
facts fully, said: “Under the cir-
cumstances in which this appeal to
Her Majesty comes on to be heard,
the appellant ought to be precluded
from insisting on his objection to
the decree on the ground of its
being declaratory only. In his
petition to the High Court for
leave to appeal to Her Majesty, the
appellant made no reference in the
grounds of appeal to this objection
to the decree. The leave granted
by the High Court having become
abortive, in consequence of the
deposit for costs not having been
made in due time, application to
this Board for special leave to ap-
peal was made. In the petition for
this leave again no reference was
made to this objection, but the ap-
plication was based on the ground
that important questions affecting
a large community were involved
in the decision sought to be ap-
pealed from. This petition, after
fully stating the conclusions of the
High Court upon the evidence as to
.Tain customs, contains the follow~
ing passage : ‘ The petitioner now
humbly submits that the suit is one
concerning properties of large value,
and involving questions of great
importance to the sect of the Jain
community to which the petitioner
belongs.’ Their Lordships having
on this ground advised Her Ma-
jesty to grant special leave to ap-
peal, they are invited, when the
appeal comes on to be heard, not
to examine or consider the im-
portant questions thus indicated,
but to reverse the judgment on a
ground which altogether excludes
their discussion. Their Lordships
do not by any means intend to lay
down, as a rule, that no questions
can be raised at the hearing which
are not indicated in the petition
for special leave to appeal; but in
the present case, considering the
whole course of the proceedings
in the court below, to which they
have fully adverted, the importance
of the questions upon which the
appellant obtained special leave to
appeal, and the somewhat technical
B.N.A. ACT, s. 101.—BYE-LAW CASE.
463
character of the objections raised
to the maintenance of the suit, they
think the appellant ought not at
this stage to be allowed to insist
that by reason of these objections
the decree appealed from should be
reverset .”
CANADA ATLANTIC RAILWAY
Co. AND DANIEL C. LINsLEY c.
THE CoRPoRATIoN OF THE CITY
OF OTTAWA, May 17, 1886, 12
S. C. R. 365, afiirming 12 O.
A. R. 234 and 8 O. R. 201, and
the same appellants '0. The Cor-
poration of Cambridge, June 14,
1887, 15 S. C. R. 219, affirming
14 O. A. R. 299, reversing C. P.
11 O. R. 392.
1888, 21 July. [Present, Lord
Macnaghten, Sir James Hannen,
Sir Barnes Peacock, and Sir R.
Couch] Leave was granted. The
question in both cases appeared to
be the validity of a bye-law passed
by the respective municipalities for
granting a bonus to the appellant
railway company in the form of
debentures. See 11 Can. Gaz. 394.
The appeals were ultimately aban-
doned. Cassels’ Digest, 1893,p. 888.
In CLARK "v. CARsoN, April 30,
1889, 20 S. C. R. 634, affirmed
S. C. B. C. 20 Aug. 1885, reversing
a decision of the Chief Justice, the
question referred to the B. C.
Land Ordinance, 1865, with re-
spect to the diversion of-unoccu-
pied water.
1889, Dec. 14. [Present, Lord
Halsbury, L.C., Lord Hobhouse,
Sir Barnes Peacock, and Sir M. E.
Smith] Leave was granted. The
appeal was abandoned 7 April 1891.
In M’LAREN oR SHIELDS r.
LEAcoCx, S. C. 30 April 1889,
Cassels’ Digest (1893), p. 604, the
question was a complicated one as
to a partnership of lumber millers
and saw millers carried on in diffe-
rent names. There was a difference
of opinion in all the courts.
1890, April 26. Leave to appeal
granted. Case compromised.
RoRINsoN v. CANADIAN PACIFIC
RAILWAY, July 23, [1892] A.
C. 481, reversing in part the de-
cision of the Supreme Court of
Canada, 14 S. C. R. 105.
Lord \Vatson, in delivering judg-
ment [there being also present
- Lords Macnaghten, Morris, Han-
nen, Shand, and Sir R. Couch],
said: “ This action of damages was
brought by the appellant
the widow of Patrick Flynn, on
her own behalf, and as tutrix of
their minor child, upon the allega-
tion that the death of her husband,
which occurred on the 13th Nov.
1883, was the result of bodily in-
juries sustained by him on 27th
Aug. 1882, whilst he was in the
service of the respondents, through
the negligence of their employés.
The case was tried in April 1885,
before Mr. Justice Doherty and a
jury, who found for the appellant
and assessed the damages at $2,000
to herself and $1,000 to her child.
The appellant then applied to the
Superior Court, sitting in review,
to have udgment entered in terms
of the verdict, and the respondents
moved for a new trial. The Court
rejected the appellant’s application,
and allowed the respondents a new
trial, upon payment of the costs of
the motion, upon the ground that
the presiding judge had wrongly
directed the jury that, in estimating
damages, they were entitled to con-
sider the anguish and mental suf-
fering of the widowed mother and
orphan child. That decision was,
on appeal, set aside by the Q. B.
Quebec, who gave effect to the ver--
diet with costs of suit. On appeal
from the Q. B. Quebec, the Sn-
preme Court of Canada reversed
their decision, restored the judg-
ment of the Superior Court in re-
view, and condemned the appellant
in the costs of the appeals to the
Q. B. and to the Supreme Court of
Canada. On a second trial in Nov.
1888, before Mr. Justice Davidson,
the jury again found for the appel-
lant with $4,500 damages to her.
RoEINsoN v.
CANADIANJ
PACIFIC
RAILWAY.
CANADA
ATLANTIC
RAILWAY Co.
AND DANIEL C.
LINsLEY v.
- CORPORATION
OF CITY or
OTTAWA.
CLARK v.
CARSON.
M’LAREN 0R
SHIELDS v.
LEAcocK.
4.64 B.N.A. AcT, 101.-LoRD CAMPBELL’S Ao'r.
RoDINsoN v.
CANADIAN
PAcIEIo
RAILWAY.
self and $2,000 to her child; and
thereupon the appellant moved the
Superior Court in review for judg-
ment. The respondents moved in
the same court for (1) a new trial;
(2) arrest of judgment; and (3)
judgment in their favour non ob-
stante veredz'cto. The second and
third of these motions were rested
on a plea, then put forward for the
ﬁrst time by the respondents, to
the effect that more than 12 months
having elapsed between the death
of Patrick Flynn and the date of
the injuries which are said to have
occasioned it, all right of action com-
petent to him had been extinguish-
ed by prescription; and that by
law the right of the appellant to
recover damages for such bodily
injuries was also extinguished be-
fore his death. The court, as its
decree bears, heard parties upon all
of these motions, and by a majority
of two to one dismissed the respon-
dents’ motions, and granted that of
the appellant, with all costs of suit
not previously adjudicated upon.
On appeal by the respondents, the
Court of Queen’s Bench, consisting
of ﬁve judges, unanimously aﬁirm-
ed the judgment of the coiu't below
on all points with costs.
“ The case was then carried by
appeal to the Supreme Court of
Canada, who, on the 22nd June
1891, by a majority of four to one,
reversed the decisions of the Queen’s
Bench in appeal and of the Superior
Court in review ; dismissed the ap-
pellant’s motion for judgment; also
refused and dismissed the motions
made by the respondents ‘for a
new trial and in arrest of jlK g-
ment ”; and granted the respon-
dents’ motion for judgment non
obstante weredz'cto, with costs of
action in all three courts.
“ On the application of the ap-
pellant, their Lordships humbly
advised Her Majesty to grant
special leave to appeal against that
part of the judgment which sus-
tains the new plea raised by the
respondents after the second trial.
In making their recommendation,
their Lordships were inﬂuenced
by these considerations ”:—— (1)
“ The general importance to the
province of Quebec of the question
arising upon the construction of its
Civil Code;” (2) “the great dif~
ference of judicial opinion which it
evoked;” (3) “and the fact that
the decision of the majority in the
Supreme Court appears, from the
judgment of Mr. Justice Tasche-
reau, to have been based, to some
extent, upon the authority of Eng-
lish decisions.” “ Their Lordships
intimated that they could not hear
a third appeal upon a motion for a
new trial involving no question of
law; but that if, in the event of their
sustaining the appeal allowed, they
would, if the matter of new trial
should prove to be still open to the
respondents, remit it for decision to
the Court below.”
His Lordship then gave the de-
cision of the Board, to the effect
that the appellant’s claim was
founded on see. 1056 of the Civil
Code of Lower Canada, which be-
came law in 1866, and superseded
the provisions of c. 7 8. of the C011-
solidated Statutes of the then pro-
vince of Canada (1859), which fol-
lowed the English statute of 9 & 10
Vict. c. 93. (Lord Campbell’s Act).
See. 1056 enacts, “ In all cases
where the person injured by the
commission of an offence or a
quasi-offence dies in consequence,
without having obtained indemnity
or satisfaction, his consort and his
ascendant and descendant relations
have a right, but only within a
year after his death, to recover
from the person who committed
the offence or quasi-offence, or his
representatives, all damages occa-
sioned by such death.” By sec.
2262 of the Code, actions for
“bodily injuries” are prescribed
by one year, “saving the special
provisions contained in art. 1056
and cases regulated by special
laws.”
The Judicial Committee decided
the appellant’s claim was not barred
by her husband’s claim having pre-
B.N.A. ACT, s. 101.—CITING FRENCH LAW.
465
scribed by his outliving the year.
That her claim began to run from
her husband’s death, and her claim
,had been made within seven months
of his death. That the terms of
see. 1056 differed substantially from
Lord Campbell’s Act and the pro-
vincial statute of 1859. That the
Code ignored the representative of
the injured person, and gave a
direct right of action to his widow
and relatives, a change suggesting
these parties are to have an inde-
pendent and not a representative
right. Secondly, that the Code dis-
tinctly speciﬁes certain conditions
affecting the right of action com-
petent to the deceased, which are
also to operate as a bar against any
suit at the instance of his widow,
&c. That these are not expressed
in either of the statutes referred to,
and by a well-known canon of con-
struction it is to be taken that they
were inserted in the Code for the
purpose of making it clear that
no conditions affecting the personal
claim of the deceased, other than
those speciﬁed, are to stand in the
way of the statutory right con-
ferred. The ﬁrst is that the widow,
Sec. shall have a right if death was
due to the oﬁence or quasi-offence ;
(2) that the deceased did not,
during his lifetime, obtain indem-
nity or satisfaction for his injuries.
Reading the secs. 1056 and 2262
together, it was clear that the de-
ceased’s claim in respect of his
bodily injuries and the claim of
his widow, &c. were to run separate
courses of prescription, and that
the widow’s claim, which could not
emerge until her husband’s death
occurs, was not to be, either di-
rectly or indirectly, affected by the
provisions of see. 2262; and that
prescription of the husband’s claim
is not, within the meaning of the
Code, equivalent to indemnity or
satisfaction, was made clear by a
reference to see. 1138.
“An attempt was made to con-
strue the Code Civil by the old
French law of the province. The
Judicial Committee did not doubt
S 2340.
that resort must be had to the pre-
existing law in all instances where
the Code contains provisions of
doubtful import, or uses language
which had previously acquired a
technical meaning. But an appeal
to earlier law and decisions for the
purpose of interpreting a statutory
code, can only be justiﬁed on some
special ground.
“ The respondents argued, that in
the event of judgment being against
them upon the question of the
widow’s title to sue, the case ought
to be sent back to the S. C. of
Canada in order that they may be
heard upon their motion for a new
trial.
before them, their Lordships are
of opinion that the course thus
suggested was no longer open.
The judgment appealed from bears,
inter alia, ‘ that the motion by the
appellants (namely, the present re-
spondents) for a new trial and in
arrest of judgment should be, and
the same were, respectively refused
and dismissed.’ As it stands, that
was an express adjudication upon
the very point which the respon-
dents desired to have reheard, and
the S. C. of Canada can have
no jurisdiction to review it. In
order to meet that ditliculty, the
respondents suggested that the de-
cerniture was inserted per incu-
rz'am, and ‘that the S. C. might
strike it out upon a motion to correct
their judgment.” But Lord Wat-
son said: “Without clear grounds
for doing so, their Lordships are
not inclined to protract litigation
already excessive, considering that
all the judges—seven in number—
who heard the motion in the courts
of Quebec Province were of opinion
that the evidence warranted a ver-
dict against the respondents; that
one of them only thought the ver-
dict ought to be disturbed; and
that, upon the single ground that
the damages awarded were too
large, their Lordships see no rea-
son to suppose that the judgment
of the S. C. was incorrectly framed,
or that any injustice will be done
GG
ROBINSON v.
CANADIAN
PAcIFIc RAIL-
wAY.
Having now the record ~
466
B.N.A. ACT, s. 101.--MUNICIPAL DUTIES.
ROBINSON 'v.
CANADIAN
PAeIEIc BAIL-
wAY.
CoRroRATIoN
or RALEIGH v.
WILLIAMS.
HOGGAN v.
EsQuIMALT AND
NANAIMO RAIL-
WAY Co.
by their ﬁnally disposing of the
case at this stage.”
“ Their Lordships will therefore
advise Her Majesty to discharge
the judgment appealed from; to
restore the judgment of the Su-
perior Court in review, dated 31st
Jan. 1889, and the judgment of
the Q. B. in appeal, dated 19th
June 1890; and to order the re-
spondents to pay to the appellant
her costs of the appeal to the Su-
preme Court in the second trial.
The respondents must also pay to
the appellant her costs of this ap-
peal.”
In CORPORATION OF RALEIGH v.
WILLIAMS, June 28, 1892, 21 S.
C. R. 103, reversing the Ct. of
App. Ont. and restoring Fergu-
son, J ., Williams sued the town-
ship of Raleigh for damages for
injury caused by ﬂooding, caused
by (1) neglect of the municipality,
in breach of their statutory duty,
to repair a drain known as Govern-
ment No. l drain; (2) the negli-
gent construction by the corpora-
tion of another drain, known as
the Bell drain No. l.
The judge of ﬁrst instance gave
judgment for the plaintiff, conﬁrm-
ing the ﬁndings of fact of the re-
feree, and granted a mandamus.
On 30 June 1891, the Court of
Appeal reversed this decision. On
28 June 1892, the Supreme Court,
21 Can. S. C. R. 103, restored the
order of the judge of ﬁrst instance,
except as to a mandamus.
1892, 3 Dec. Special leave was
granted to appeal to Her Majesty
on the ground that the appeal in-
volved serious questions of public
importance depending on the true
construction of the Ontario statutes
relating to the powers and duties of
municipalities.
3 Aug, [1893] A. C. 540; 63
L. J. P. C. 1; 69 L. T. 506, the
Judicial Committee discharged the
order of the Supreme Court and
lower courts holding that the case
should be referred back to the
county court judge to determine
the damage caused by the overﬂow
from Government drain No. 1, on
the ground that the Municipal Act,
R. S. O. c. 184, ss. 583, 586, 587,
589, imposes upon every munici-
pality the duty of preserving and
repairing drainage works within its
own limits, whether the drainage
work is a work constructed by the
municipality or a work constructed
by the Government before the muni-
cipality was incorporated; and that
having regard to the purview of the
legislature of Ontario in the Muni-
cipal Act, an action lies at the suit
of any person who can show he
has sustained injury from the non-
performance of this statutory duty :
but that it-was most reasonable that
no action should be brought for a
mandamus to compel a municipality
to execute repairs until after notice
in writing has been given to them.
Yet sub-sec.2 of sec. 583 did not
take away the right to bring an
action for damages if no notice was
given.
Secondly, as to the Bell drain,that
the action must be dismissed with-
out prejudice to any claim on the
part of the plaintiffs to have the
amount of damage to their pro-
perty determined by arbitration.
For any damage “ necessarily re-
sulting” from the exercise of the
statutory powers of the munici-
pality (sec. 483), and for any
damage done to the plaintiff’s pro-
perty “in the construction of drain-
age works or consequent thereon ”
(sec. 591), the plaintiffs must seek
their remedy by arbitration, which
was not done here.
In HOGGAN v. EsQUIMALT AND
NANAIMO RAILWAY Co., April 14,
1892, 20 S. C. R. 235, affirming,
Dec. 13, 1890, S. C. B. C., affirming
Walkem,J.,the question was as to the
construction of the Agricultural Set-
tlers Act of British Columbia, 47
Vict. c. 14. The appellant claimed,
as an actual settler for agricultural
purposes, that he was entitled to a
right of pre-emption over certain
lands included in a Government
B.N.A. ACT, s. 101.—PUBLIC ROAD CASE.
467
grant for the purpose of the re-
spondents’ railway.
1893, . . Special leave granted.
May 3, [1894] A. C. 429; 63
L. J. P. C. 97; 70 L T. 888.
Judgment appealed from aﬂirmed
with costs.
In UNIoN BANK or CANADA 1).
O’GARA, 22 S. C. R. 404, 20 Nov.
1893, the point was whether evi-
dence of the contract was admissible.
The action was brought by the
Bank against O’Gara as endorser of
promissory notes.
1894, 15 March. Special leave
allowed. 22 Can. Graz. 567.
8 Dec. 1894. Compromised, and
appeal dismissed.
In CAsGRAIN v. ATLANTic AND
NORTH—WESTERN RAILWAY Co.,
appeal from a decree of the Q. B.
Quebec, 23 Dec. 1892, which re-
versed a decree of the Sup. C.,
May 16, 1891, the allegation
was that the railway company had
violated the provisions of their Act
in stopping up a lane called Blache
Lane, city of Montreal. A ques-
tion was, whether the Attorney-
General of Quebec had power
to discontinue the action: also,
whether the lane was a public lane.
1894, 23 Can. Gaz. 202. Appeal
allowed.
Feb. 9, [1895] A. C. 282, 72
L. T. 369. Judgment of the court
below varied as to costs; otherwise
aflirmed. Appellants to pay the
costs of the appeal.
ATT.-GEN. 0F ONTARIO v. Arr.-
GEN. OF DOMINION AND DIsTIL-
LERs’ AND BREWERS’ AssocIATIoN,
24 S. C. R. 170. On special re-
ference to the Supreme Court by
the Governor in Council In 7'6 the
validity of Ontario Liquor Prohibi-
tion Enactment.
1895, 16 May. Special leave
granted. See ante, p. 162, and posf,
Appendix C.
In TORONTO BANK Co. v. THE
QUEEN, the question concerned a
duty on steel rails.
1895, 20 July. Special leave
was granted.
MACLEAN v. STEWART (Smith
mis-en-cause) was an appeal from
S. C. 26 June 1895, in which Four-
nier, King, Sedgewick, JJ., Sir
Henry Strong, C.J., and Tasche-
reau, J., dissenting, reversed the
judgment of the Q. B. Quebec (Sir
A. Lacoste and four judges) and the
judgment of the Sup. Court (J etté),
which latter judgments condemned
the defendant Maclean to pay
Stewart $10,261 in the following
circumstances :—
The petitioner Stewart, Maclean,
and Smith were partners in a com-
mercial ﬁrm at Montreal. Under
the articles of partnership each
partner was entitled to the interest
on his capital at the rate of 7 per
cent. Maclean’s capital was
$4,480, Stewart’s $25,292, and
Smith’s $30,350. There was a
clause giving power to Maclean to
Withdraw $6,000 annually, and
Stewart and Smith $3,000. The
term of partnership was ﬁve years.
At the end of 4% years the three
partners abandoned the property to
the creditors of the company. To
Stewart’s credit there was $17,185,
to Smith’s credit $27,329, and
Maclean’s account showed a debit
of 829,07 9. Maclean made an
oﬁer to the creditors to purchase
the estate and assets of the ﬁrm by
paying the privileged creditors and
the insolvency expenses in full, and
the ordinary creditors at the rate
of 50 cents in the dollar (10s. in
the pound), on the condition that
the assets were transferred to him
personally, and that a discharge,
should be given to him Stewart,
and Smith. The creditors accepted
the offer and executed a discharge.
Neither Stewart nor Smith were
parties to the negotiations or con-
veyance from the creditors’ curator
to Maclean, but they knew Maclean
had made the offer. Subsequently
the petitioner Stewart sued Maclean
for his overdraft, $29,079. Jetté,
J., held that the drawings made by
MACLEAN 2'.
STEWART.
UNIoN BANK OF
CANADA 1).
O’GARA.
CAsGRAIN v.
ATLANTIC AND
N ORTH-
WESTERN
RAILWAY Co.
ATT.-GEN or
ONTARIO v.
ATT.-GEN. or
DOMINION AND
DIsTILLEns’
AND BREwERs’
AssocIATIoN.
TORONTO BANK
Co. v. THE
QUEEN.
ee2
468
B.N.A. AcT, s. lOL—TRUSTEE AND come.
MAcLEAN v.
STEWART.
VENKATA
NARAsIMHA
APPA Row v.
THE CoURT or
WARDs.
Maclean and the other partners
were advances properly debited to
each partner’s capital account, and
that, apart from the right of the
creditors, they were entitled to an
adjustment of account inter see.
He also held that Stewart, by the
abandonment to creditors, did not
divest himself of all rights which
were personal to him to call upon
his partners to equalise the loss
between them. The entire capital
being lost, J etté, J ., decreed
Maclean to pay one half, and
Stewart and Smith one quarter,
which worked out that Stewart
should be paid $10,261 by Maclean.
1895, August 5. [Present-,
Lord Watson, Lord Davey, and
Sir R. Couclr] Special leave to ap—
peal was allowed, after hearing the
petitioner and respondent.
Finality of Decisions of the
Judicial Committee.
When a decision of the Judicial
Committee has been reported to
the Queen, and embodied in an
Order of Council, it becomes a de-
cree or order of the ﬁnal Court
of Appeal; and it is the duty
of every subordinate tribunal to
whom the order is addressed to
carry it into execution. See Pitts
1). La Fontaine, Nov. 20, 1880,
6 App. Cas. 482; 50 L. J. P. C. 8;
43 L. T. 519. This was a casein
which the respondent Fontaine,
trustee in liquidation of the affairs
of Morton & C0., contended he was
not liable for costs beyond the
assets in his hands. He was di-
rected to pay the costs by an order
of the Judicial Committee, 19 May
1880, 5 App. Cas. 564. The order
was, “ That the respondent should
pay the appellant Pitts and his
wife all such costs as were incurred
by him or his wife in the consular
courts of and incidental to the
orders under appeal, and the costs
of opposing the rules on which
such orders were made, 800., and
the respondent is likewise to pay the
appellant the sum of £411 29. 4d.
for the costs of this appeal.”
The respondent contended he
was a trustee, and under 20 section
Bankruptcy Act, 1869, he was ab-
solved from personal liability. He
further said he refused to act in the
liquidation without the sanction of
the court, which sanction the for-
mer judge of the consular court
gave.‘ The consular judge ordered
the amount of the Morton assets
to be paid towards the costs. They
were about half the costs.
Nov. 20, 1880. Sir James
Colvile said [there being also
present Sir M. E. Smith and Sir
R. Collier] :—
“This is an application for a
peremptory order on the Consular
Court at Constantinople to carry
into execution the Order in Council
of 19 May 1880. \Vhen
a decision of this Board has been
reported to Her Majesty, and has
been sanctioned and embodied in an
Order of Council, it becomes the
decree or order of the ﬁnal Court
of Appeal—the House of Lords,
which was brought into the discus-
sion, having no jurisdiction what-
ever in the subject-matter of it—
and that it is the duty of every
subordinate tribunal to whom the
order is addressed to carry it into
execution.” His Lordship then
said: “In a case where a trustee
makes an application, the success
of which is‘ doubtful, he ought,
before making it, to get from ‘the
creditors an indemnity against the
costs, if he knows there are no
assets out of which they can be
paid.” Peremptory order that this
and previous order be strictly
obeyed.
In VENKATA NARASIMHA APrA
Row 1:. THE COURT OF \VARDs,
July 17, 1886, ll App. Cas. 660,
_ the petition asked for the rehearing
of the judgment of the Board in
two appeals, which were ﬁnally ap-
proved by Her Majesty in Council
in the year 1883. He contended
he had found new matter, which
would, if it had been produced in
these appeals, have affected the
B.N.A. ACT, s. 101.-PUBLIO MISCHIEF OF REVIEW. 469
judgment of the Board. Lord
\Vatson [there being also present
Lord Hobhouse, Sir B. Peacock,
and Sir R. Couch], in refusing
leave, said: “It is not said that
there was any error in framing the
judgment of this Board, or that it
did not fully and accurately express
what the Board intended to decide.
Then it was reported to Her
Majesty, and was confirmed by
regular Orders in Council, dated
3 May 1882 and 19 July 1883.
No authority has been cited to
their Lordships which can warrant
them in granting a rehearing
under such circumstances as these.”
His Lordship cited Hebbert v.
Purchas, 26 April 1871, 3 L. R.
P. C. p. 671; 7 M00. P. C. N. S.
p. 561, where a litigant alleged,
before report and approval, that he
had been disabled by want of means
from appearing and maintaining
his cause. Lord Hatherley, L.C.
[there being present also Lord
Chelmsford, Lord Westbury, Lord
Cairns, Sir J. Colvile, and the
Archbishop of York and Bishop of
London],said: “Having carefully
Weighed the arguments, and con-
sidering the great public mischief
which would arise on any doubt
being thrown on the ﬁnality of the
decisions of the Judicial Commit-
tee, their Lordships are of opinion
that expediency requires that the
prayer of the petitions should not
be acceded to, and that they should
be refused with costs.”
The following cases bear on the
exercise of the prerogative in grant-
ing special leave. [See also ante,
p. 449] :--—
MATHEWS v. WARNER, Nov. 22,
1798, 4 Vesey 186, 5 Vesey 23,
wasa petition to the King in Coun-
cil for a commission of review of a
decision of the Court of Delegates
[Sir F. Buller, Sir B. Hotham,
Heath, J ., Dr. Swabey, Dr. Coote,
and Dr. Parson] on the construc-
tion of a will, and in usual course,
by Order in Council, 31 Oct. 1798,
the petition was referred to Lord
Loughborough, L.C., to report his MATHEWS v.
WARNER.
opinion thereon. The Lord Chan-
cellor said: “ It has been truly
stated in argument that this appli~
cation is by no means a matter of
course. It is in the discretion of
the Crown, upon grounds of sound
discretion, to grant a commission of
review; and, though I state it,
as not being at all a matter of
course to grant it. I can by no
means admit what was stated by
the King’s advocate,” namely, that
Lord Camden had said this prero-
gative was not to be countenanced.
If the note was accurate, it must be
taken Lord Camden was only re—
ferring to frequent trials upon
questions of Prize. As to criminal
appeals, his Lordship said: “It is
in the discretion of the Crown to
grant it or not. In criminal
cases the officer of the Crown must
interfere to prevent a writ of error
being sued out merely to evade
execution of the judgment ; but if
distinct matter of error can be
pointed out, in my observation and
practice the Attorney-General has
thought himself not at liberty to re-
fuse it; if there is an appearance of
right; if it is an arguable case; he
does not prevent it, but permits it
to be argued.”
“It is not merely perhaps an
opinion that the judgment is erro-
neous that would induce me to
report that the commission ought
to issue, where a grave inquiry has
been carried on, and a very respect-
able court of delegates have affirmed
the sentence, though I must doubt
it. I agree, there ought to be cir-
cumstances to make the question
of some importance. Here the
value may be more or less. Upon
one side it is stated as high as
£20,000; on the other side it is
represented as not exceeding£5,000.
But the point to be argued is really
a very material one, and the cir-
cumstance, that biasses my judg-
ment, is this: I cannot take upon
me to say, whether, according to
the course in the Court of Probate,
there are not authorities that would
4.70 B.N.A. AOT, s. IOL—OLD cAsEs OF REVIEW.
MATHEWS v.
WARNER.
GooDwIN v.
GIEsLER.
very abundantly support the deci-
sion; but if so, I wish to have
that point fully ascertained by a
second inquiry directed to that
precise point, because if such a
thing as this is to be proved as
a will, it calls loudly for the legis-
lature to make some regulation
as to the disposition of personal
property, so as that there should
be something of solemnity, certain-
ty and precision, in order to give
away that property, and defeat the
natural rights of the relations.”
His Lordship certiﬁed that “the
points of law which arise on the
proceedings appear ” “ to be so im-
portant to the public, that it is ﬁt
that they should'be heard and de-
termined in the most solemn man-
ner.” Nov. 20, 1799, 5 Vesey
23, a commission of review was
held [present, Bishop Of London,
Lord Kenyon, Macdonald, C.B.,
Sir W. Scott, J. of Adm. Ct.,
Rooke and Lawrence, JJ., Dr.
Arnold, and Dr. Robinson], and
reversed.
GooDwIN v. G-IEsLER, Dec. 15,
1794, Ridg. L. and Sch. Ir. Rep.
371. A case in Ireland which
came before the Lord Chancellor of
Ireland and Lord Fitzgibbon to
enquire and report whether there
was suﬁicient ground to review the
sentence of the Prerogative Court.
The question in dispute was the
impeachment of the will of J. Good-
win. The judge of the Preroga-
tive Court pronounced for the will.
The petitioner appealed to a com-
mission issued under the great seal
in the ordinary course to the judges
delegates. On 26 Jan. 1792 a ma-
jority of the judges delegates as-
sembled and refused time, even
until the next morning, to the peti-
tioner’s advocate to prepare the
case, whereupon he left the court.
The delegates called for the deposi-
tions of the subscribing witnesses
to the will, which were read, and
without further examination they
affirmed the sentence of the Pre-
rogative Court.
Lord Fitzgibbon, L.C. (after~
wards Earl of Clare), said: “ So
far from attending to the maxim
laid down in 1 Oughton 473 (tit.
Ordo. J udiciorum, 332), they (the
judges delegates) seem to have
pronounced their sentence of af-
ﬁrmance de 60 guod non cog-
novemmt et quad cognoscere non
possu-nt, for they proceeded to
affirm the sentence, not only with-
out affording the aggrieved party
an opportunity of being heard, but
without an examination of the
transmiss, upon which alone such
a sentence ought to have been
founded. There is no doubt, that
where a sentence of the Ecclesi-
astical Court has been solemnly
aﬂirmed by judges delegates, and a
petition is preferred to the Crown
for a commission of review, the case
ought to receive a very serious and
deliberate consideration to warrant
a report to His Majesty that such a
commission ought to issue. In such
a case, I should never hold myself
authorized humbly to advise His
Majesty to interpose, merely be-
cause I might diﬂer in opinion
with the judges delegates upon the
proof made in the cause.” His
Lordship then stated the facts,
and said: “ The judges delegates
should have granted the adjourn-
ment. But if they were determined
to dispose of the appeal without
hearing the appellant in support of
it, surely it was their bounden duty
minutely to have examined the
whole transmiss,” and, above all,
the evidence of a particular witness
which decided the cause, before they
ventured to pronounce a sentence
of afﬁrmance, which must bind the
right of the parties irrevocably, un-
less His Majesty should be pleased
to interpose. He then said it was
his duty to submit his opinion to
His Majesty that there would be
a failure of justice unless a com—
mission to review should issue.
But see In re Ames, 14 May
1841, 3 M00. P. C. 409, where
the special leave was obtained
ea: parte in the absence of the
B.N.A. ACT, 5. lOL—BEHEARING BY P. o 471
appellants. And the case where
the rights of infants were in ques-
tion, Rajundernarain Rae 'v. Bijai
Govind Sing, 29 Nov. 1836, 1 M00.
P. C. 117. In that case, in the
report of which all the early cases
on this subject, both in the Privy
Council and House of Lords [see
above, Mathews 2). Warner, 22 Nov.
1798, 4 Vesey, 186; 5 Vesey, 23],
are given, Lord Brougham said
[there being also present Baron
Parke, Bosanquet, J ., T. Erskine,
C.J. in Bankruptcy, Sir E. H.
East, and Sir A. Johnson] : “This
was a petition to rehear the cause
upon which their Lordships had
given their judgment on the 16th
April 1834, after an order of the
29th July 1833, calling on the ap-
pellants to deliver printed cases in
a fortnight, otherwise their Lord-
ships would proceed to hear the
cause ex parte ; no cases were de-
livered, and the cause came on ac-
cordingly. The appellant not ap-
pearing, an order was made in what
was understood to have been the
usual form in the Privy Council in
such cases; it was, that after hear-
ing counsel for the respondent, and
no one appearing for the appellant,
the decree appealed from be aﬁirm-
ed, and the appeal dismissed with
costs. This order was conﬁrmed;
that is to say, the report of their
Lordships was adopted, and made
an order of the King in Council.
“ The ground of the present appli-
cation is, that there has been no
hearing, but that the aﬁirmance
was pronounced merely on the ap-
pellant making default. This, it is
contended, entitles their Lordships
to amend the order, and advise His
Majesty to revoke the conﬁrming
order; and if the power to do so
exists, the appellant then contends
that it ought to be exerted in this
instance, inasmuch as he makes out
a strong case for the indulgence of
the Court. The parties were in-
fants under the Court of Wards in
Calcutta, and appeared by a public
functionary, through the appoint-
ment of that court, as their guar-
dian ad litem. This person neg-
lected the case altogether, and
not only did not provide funds for
carrying it on, but absconded with
funds in his hands which had been
allowed for the expense of the
suit, and he was not to be found
when the agent here desired to
communicate with him; nor has he
since returned. Although some
delay occurred in prosecuting the
appeal during the lifetime of the
party—~the father of the infants,
who had commenced the appeal——
it is clear that the infants had been
substituted in his room, and steps
had been taken which waived any
objection on the ground of his
laches ; and whether this was
waived by the respondent or by
the court, is immaterial for the
present purpose. The case for in-
dulgence is, therefore, a strong one,
provided there is the power to grant
this application.
“ It is unquestionably the strict
rule, and ought to be distinctly
understood as such, that no cause in
this court can be reheard, and that
an order once made, that is, a re-
port submitted to His Majesty and
adopted by being made an Order
in Council, is ﬁnal, and cannot be
altered. The same is the case of
judgments of the House of Lords
. . the only other supreme tribunal
in this country. Whatever, there-
fore, has been really determined
in these courts must stand, there
being no power of rehearing for
the purpose of changing the judg-
ment pronounced. Nevertheless,
if by misprision in embodying the
judgments, errors have been intro-
duced, these courts possess, by
common law, the same power which
the Courts of Record and Statute
have of rectifying mistakes which
have crept in. The Courts of Equity
may correct the decrees made while
they are in minutes; when they are
complete they can only vary them
by rehearing, and when they are
signed and enrolled they can no
longer be reheard, but they must
be altered, if at all, by appeal. The
RAJUNDER~
NARAIN RAE v.
BIJAI GovIND
SING.
472
B.N.A. ACT, s. 101.-—IF ORDER DRAWN UP.
RAJUNDER~
NARAIN RAE r.
BIJAI GovIND
SING.
CURRY v.
CURRY.
DUMoULIN v.
LANGTREY.
HEBBEBT v.
PURcIIAs.
' courts of law, after the term in
which the judgments are given,
can only alter them so as to correct
misprisions, a power given by the
statutes of amendment. The House
of Lords exercises a similar power
of rectifying mistakes made in draw-
ing up its own judgments, and this
court must possess the same autho-
rity.” After citing the cases in the
House of Lords, his Lordship con-
tinued : “ It is impossible to doubt
that the indulgence extended in
such cases is mainly owing to the
natural desire prevailing to prevent
irremediable injustice being done
by a court of last resort, where by
some accident, without any blame,
the party has not been heard, and
an order has been inadvertently
made as if the party had been
heard.” His Lordship then said
the appellant not appearing the
judgment should have been dis.
missal [see Lord Clare, L.C., in
Goodwin o. Giesler, 1794, Ridg.
L. and Sch. Rep. p. 381], for
if in the courts of last resort judg-
ment of aﬁirmance be pronounced,
“ the matter is ﬁnal, and that judg-
ment stands as a precedent in what-
ever points were raised in the case.”
And although in this case the ob-
jectional form imputing afﬁrmance
was followed, yet in the circum-
stances their Lordships advised the
appeal being restored, amending
the order of the 16th April 1834
to that effect.
In HERBERT 'u. PURCHAS,
26 April 1871, 3 L. R. P. C. 664,
p. 671 (see above), petitions were
specially referred to the Privy
Council, on the averment of the
petitioner that in a former hearing
of his case by the Privy Council,
the judgment had been given ex
parte by reason of his want of
pecuniary means, and the decision
\
, was at variance with former deci-
sions of the Committee. Their Lord- '
ships declined to hear the petition.
See also ex parte Kisto N auth
Roy, Feb. 2, 1869, 2 L. R. P. C.
274. There the agents of the re--
spondent neglected to appear, and
the appeal ex parte was reversed.
On the respondent petitioning for a
rehearing, the Judicial Committee
refused, after the Order in Council
had been drawn up, to rehear the
appeal.
Refused in such cases as the
following :—-
CURRY 'v. CURRY, in S. C. 13
March 1880, Cassels’ Digest, 778.
The Ct. of Appeal, Ontario, 4 O. A.
R. 63, held, aﬁirming Spragge, Ch.,
26 Grant 18, that money received for
sale of land was received for the
joint beneﬁt of two brothers. The
S. C. were equally divided.
1880, June 18. Special leave
refused.
Special leave refused in DUMoU-
LIN o. LANGTREY, S. C. Nov. 8,
1886, 13 S. C. R. 258, appeal
brought per Saltum under S. C.
A. A., 1879, s. 6, to the S. C. from
judgment of Chancery Div., On-
tario, 19 Dec, 7 O. R. 499, 644,
1884, which the S. C. affirmed [Sir
W. Ritchie, C.J ., Fournier, Henry,
Taschereau, and Gwynne, JJ
An action was brought by Lang-
trey and others against Dumoulin,
the incumbent of the rectory of
St. James in the city of Toronto,
to have certain lands declared to
be held by him not only for him- A
self, but for the beneﬁt of the
other rectories in the city of To-
ronto. Ferguson, J. decided in
favour of the claim, which decision
was aﬁfirmed by the Chancery Di-
vision. An appeal was taken in the
name of the defendant, but in the
interest of the Vestry, parishioners,
and churchwardens of St. James’
Church, who, as the rector de-
clined instituting on his own be-
half an appeal from the judgment,
obtained an order from the S. C.
enabling them to appeal in the
name of the rector upon their in-
demnifying him’ against all costs.
The claim of the Vestry and church-
wardens was, that they and the
parishioners of the said rectory are
B.N.A. ACT, s. 101.—REVIEW OF NINE JUDGES.
473
the culrtz'us que truste'nt of the lands
mentioned in the plaintiff’s state-
ment of claim, and that the rector of
St. James holds the same merely as
a trustee to their use, and that,
therefore, the lands in respect of
which the suit has been instituted
do not come within the operation of
the statutes, chap. 16., as amended
by chap. 17. of the statutes of the late
province of Canada, passed in the
session 29 & 30 Vict., and the two
Acts 39 Vict. (Ont) c. 109. and
41 Vict. (Ont) c. 69. The S. C.
held that they were rectory lands
and were held by the rector of the
church of St. James as a corpora-
tion sole for his own use, and not in
trust for the vestry and churchwar-
dens or parishioners of the rectory,
and such vestry and churchwardens
had therefore no locus standz' in
curz'a in respect of the said lands.
1887, June 18. Lord Watson, in
refusing leave [there being also
present Lord Fitzgerald, Lord Hob-
house, Sir Barnes Peacock, and Sir
R. Couch], said : “ In disposing of
this petition their Lordships do not
think it necessary to raise any
question regarding the interest and
right of the petitioners to insist in
the action. They will assume the
petitioners have a locus standz', and
that the point was rightly decided by
the judges of the Supreme Court of
Canada. The questions of law in-
volved in the case are, no doubt,
of considerable importance to liti-
gants who are represented at the
bar, and are calculated to attract
the attention of the public. At
the same time, their Lordships can-
not regard these questions as being
of general importance in the strict
and proper sense of that term ; their
determination one way or another
will not affect other interests than
those of the parties to the action.
It will not be decisive of any
general principle of law. In these
circumstances the question which
their Lordships have to consider is
this : Whether the case is in itself
of such importance, or of such
nicety, as to require that this
Board, in the interests of justice,
should review the unanimous deter-
mination of ‘nine judges of the Cana-
dian courts. The petitioners them-
selves resorted per Saltum to the SC .
of Appeal in Canada, and according-
ly their Lordships must deal with
the petition on the footing that they
have exhausted the courts of that
country. The case has been de-
cided carefully, after full hearing,
by nine judges, ﬁve of them mem-
bers of the S. C. of Canada; and in
these circumstances their Lordships
do not think they would be war-
ranted under the provisions of the
Act of 1875 [institution of Supreme
Court Act] in recognising this as a
proper case for the exercise of Her
Majesty’s prerogative.” Petition
dismissed with costs. [See judg-
ment in P. C. Printed Papers,
Lincoln’s Inn Library]
McLEoD, assignee of J ewett &
Co., 2:. NEW BRUNSWICK RAILWAY
C0., Feb. 3, 1880, 5 S. C. R. 281.
The court was equally divided, and
S. C. N. B. was affirmed. A ques
tion of construction of an agree-
ment, and as to the property in
timber. Refused 18 June 1880
[Sir J. Colvile, Sir B. Peacock, Sir
M. E. Smith, and Sir Robert
Collier present].
CHnvRIER v. THE QUEEN, March
1, 1880, 4 S. C. R. 1. The plain-
tiff claimed against the Crown to
be entitled to works, booms, and
canals known as the Gatineau
WVorks, and claimed $200,000 for
rent and proﬁts.
The Crown pleaded prescription.
The action was raised by petition
of right. J. T. Taschereau, J ., dis-
missed the petition. The S. C.
[Ritchie, C.J., H. E. Taschereau
and Gwynne, J J ., Fournier and
Henry, J J ., dissenting]. held that
before, and under, the Code, art.
2211, the Crown could invoke
prescription. And had in this
case purchased the land, &c.,
in good faith, and acquired an un‘
impeachable title by ten years’
peaceful possession.
DUMOULIN v.
LANGTREY.
McLEon 2'.
NEW BRUNS-
WICK RAIL—
WAY Co.
CnEvRIER v.
THE QUEEN.
474
B.N.A. ACT. s. 101.——BANKRUPTCY CASE.
CHEvRIER v.
THE QUEEN.
RUssELL v.
LEFRANCOIS.
MOLLEUR v.
LAMOUREUX.
SMITH v.
GoLDIE.
1881, March 8. Sir Barnes Pea-
cock, Sir M. E. Smith, Sir R.
Collier, and Sir R. Couch refused
special leave.
RUssELL v. LEERANOoIs, Jan. 11,
1883, 8 S. C. R. 335. Eournier,
Henry, Taschereau, and Gwynne,
JJ., Ritchie, C.J., and Strong, J.,
dissenting, reversed Q. B. Quebec,
which had affirmed the Sup. Ct.
The question was whether the
testator was insane at the execution
of his will; and (2) if the will was
obtained by undue inﬂuence of a
person he thought to be his lawful
wife. The Sup. Ct., Meredith, J.,
held the will valid.
1883, March 19'.
refused.
MOLLEUR v. LAMOUREUX, 8th
Marchl886,Cassels’ Dig. (1893), 71.
The question was whether Molleur
was acting as the nominee or
locum tenens of the Bank of St.
J ohn’s. Lamoureux compounded
with his creditors for the sum of
25 cents in the dollar or 5.9. in the
pound. The defendants, the Bank
of St. J ohn’s, were placed among
the unsecured creditors for $23,431,
the composition on which would be
$5,857 .86. The plaintiff entered
into negotiations with Molleur to
obtain the amount of the composi-
tion to his creditors, a sum of
3524,17 3.63, the result being a deed,
16 May 187 6, between these two
and the assignee, which recited the
plaintiff had received from Molleur
$25,251.55 for the purpose of pay-
ing the composition to his creditors
and for securing repayment of this
sum, together with a bonus of
$4,000, as one of the considerations
for the said advance. The plaintiff
requested the assignee to assign to
Molleur all the plaintiff’s property.
Molleur dealt with the property of
the plaintiff until 187 9, when the
plaintiff raised this action, contend-
ing Molleur was the nominee of the
bank, and had paid the bank in full
instead of only a composition, and
had so improperly managed the
Special leave
estate as to cause plaintiff a con-
siderable loss.
29 Jan. 1883. Sup. Ct.,Chagnon,
J ., held LIOlleur was the wow/n
te tens of the bank, and that he
should render a sworn account,
which he did, claiming a balance
still due of $3,814.18; that Mol-
leur was justiﬁed in paying the
bank the amount of the notes for
which they held the endorsement
of L’Ecuyer (the cashier of the
bank), there being no evidence that
the hypothec held by L’Ecuyer was
not a bond ﬁde security, of which
the bank had a right to the beneﬁt ;
that the bank was justiﬁed in retain-
ing the bank shares the property
of the plaintiff to be applied on the
balance of its claim; that the bank
was entitled to $25,251.55, together
with the bonus of $4,000, and in-
terest on all the amounts due ex-
cept the bonus, and ordered an
inquiry.
The Q. B. reversed the ﬁnding
that Molleur was the locum tenens
of the bank, and disallowed in-
terest.
The S. C. of Canada aﬁirmed the
judgment of Chagnon, J ., in the
Sup. Ct. with variations.
1886, Nov. 13. Leave to appeal
refused by the Judicial Committee.
SMITH v. GoLDIE, June 19th
1883, 9 S. C. R. 46, reversing
7 O. A. R. 628. The question is
thus described by Ritchie, C. J .:
“This is a very important case.
The main and substantial question
raised, and on which the case was
decided in the court below, was
whether the machine was a patent-
able machine; and the learned
judges of the Court Of Appeal held
that the combination, though ad-
mittedly producing a useful result,
was nevertheless not patentable in
law. After a careful consideration
of the evidence, I have arrived at
the conclusion that this machine
was a new combination of old
machinery or instruments, whereby
a new and useful result was ob-
tained, by which a new effect was
B.N.A. ACT, 5. 101.-—-AGREEMENT CASE.
475
produced, which is stated to have
revolutionised the manufacture of a
certain description of flour pro-
ducing a materially better article,
and therefore, I think, it is the sub
ject of a patent. I think, where the
patent is a combination, the com-
bination itself is the novelty and
also the merit, and this view is, in
my opinion, abundantly supported
by the following authorities.” [His
Lordship read the well-known au-
thorities on this head]
1884, March 4. Special leave
refused.
MOFFATT v. MERCHANTS’ BANK
OF CANADA, Jan. 12, 1855, 11
S. C. R. 46, affirming [Gwynne, J.,
dissenting] the Oh. D. Ontario [Fer-
guson, J.], 5 O. R. 122. Leave to
appeal direct to the S. C. was given
under sec. 6, Sup. Ct. Amendment
Act, 1879, 42 Vict., on the ground
that the Ct. of App. would be bound
by the case of Cameron 1). Kerr,
3 O. A. R. 30. Ferguson, J., gives
the facts thus: The bank held the
commercial paper of the ﬁrm Lewis
Moffatt for advances. The ﬁrm
applied for further advances for a
limited period, and it was agreed
such additional advances should be
made upon the bank receiving
security for the indebtedness of the
ﬁrm, which was $153,011. A
mortgage on land and premises
was executed by the ﬁrm. On the
same day an agreement was exe-
cuted between Lewis Molfatt, K. M.
Moffatt, and George Moffatt, the
defender of the 1, 2, and 3 parts
respectively, and the bank. This
recited the indebtedness of the ﬁrm,
and the threats to close the ac-
count unless the bank received
further security. This agreement
contained a covenant by which the
parties of the 1, 2, 3 parts declared
themselves jointly and severally in—
debted to the bank in the sum of
$10,000, to be well and truly paid
within nine months as secured by a
money bond of even date. The
ﬁrm was declared insolvent 12 Aug.
1875, and the bank declared there
was a deﬁciency in the property
mortgaged to the extent of $50,00
and that they were bound to be
paid the $10,000 by the defendant
George Moffatt. The defendant
alleged he was induced to sign on
misrepresentation made to him by
one of his co-obligors, that it was
to secure the bank against any loss
which might arise by reason of the
bank refraining from the registra-
tion of the mortgage, or by reason
of any over valuation of the property
embraced in it. The S. C. [Gwynne,
J ., dissenting] held the defendant
bound by the bond.
1885, Nov. 14. [Lord Monkswell,
Lord Hobhouse, Sir Barnes Pea-
cock, and Sir R. Couch.] Special
leave to appeal refused, on the ground
that the appeal involved only the
question of the construction of
an agreement between the parties,
and was not of sufficient public
interest or importance to warrant
leave.
GRAND TRUNK RAILWAY v.
BECKETT. Special leave refused.
[See ante, p. 444.]
MoNTREAL PASSENGER RAIL-
WAY Co. v. PARKER, 22 June
1885, S. C., Cassels’ Dig. (1893)
731. Claim for damages for in-
juries incurred by being thrown
out of a waggon crossing a railway
track. Plaintiff alleged faulty con-
struction of the track.
Sup. Ct. [Torrance, .T.], found
that the track was in bad order,
and gave $2,500 damages. The
Q. B. Quebec reversed that ﬁnd-
ing. The S. C. reversed the Q. B.
Quebec, Strong, J ., dissenting.
In the Privy Council, it was
urged that the question involved a
question of law of importance,
namely, whether the bye-laws of
the city of Montreal making the
railway company liable for damage,
however caused, were valid. This
constructionwas upheld by the judge
of‘ ﬁrst instance. The intermediate
court and the S. C. decided the
matter, not on the law, but on the
question of negligence in allowing
the track to be in a faulty condition.
MOFFATT v.
MERCHANTS’
BANK or
CANADA.
GRAND TRUNK
RAILWAY v.
BEcKET'r.
MONTREAL
PAssENeER
RAILWAY Co.
v. PARKER.
4.76 B.N.A. Ac'r, s. lOL—GROWN’S RIGHT OF APP.
MONTREAL
PASSENGER
RAILWAY Co. v.
PARKER.
ATT.-GEN. 0F
NovA ScoTIA
'v. GREGORY.
1885, 14 Nov. [Lord Monkswell,
Lord Hobhouse, Sir Barnes Pea-
cock, and Sir R. Couch] Special
leave to appeal refused by the J u-
dicial Committee, it appearing that
the question had been decided on
a pure question of fact.
AT’L—G'EN. OF NovA ScoTIA v.
GREGORY, Cassels’ Dig, 727. In
this case Gregory obtained a ver-
dict against the Halifax Company
for $80,000, S. C. N. S.
1886, April 3. [Lord Black-
burn, Lord Hobhouse, and Sir R.
Couch] It was urged by the
counsel for the Attorney-General
of Nova Scotia that the Crown had,
irrespective of leave, a right of ap-
peal. Lord Blackburn said he did
not know that the Crown had any
prerogative to appeal from a
judgment against itself any more
than anybody else ; that there had
been many instances in which
parties representing the Crown
have asked for and obtained special
leave, but his Lordship was not
aware of any instance in which it
- has been asserted that merely be-
cause the party desiring to appeal
happened to be the Crown there
was a right to appeal. [See Can.
Gaz.]
Lord Hobhouse stated the facts
as follows (11 App. Cas. 229;
55 L. J. P. C. 40; 55 L. T.
270) :—The company appealed to
the S. C. Canada, and the only
real question was whether $40,000
of the $80,000 should be paid to
.one Hill instead of being paid
to Gregory. It was a matter of
indifference to the Halifax Com-
pany whether they paid Hill or
Gregory, therefore the company
appealing were acting on behalf of
Hill, and it was agreed Hill really
represented the Government of
Nova Scotia, who now appear by
their Attorney-General. Gregory
obtain ed $40,000 out of the $80,000
from another source; he could not
obtain that over again under his
verdict from the Halifax Company,
so the case was conﬁned to the
$40,000 left, and which the Govern-
ment of Nova Scotia was alone
interested in. When the case
came before the S. C. it was
thought better to have the real
parties face to face; a special agree-
ment was made for that purpose
in the presence of Strong, J ., and,
with the sanction of the court,
upon that agreement the Attorney-
General for Nova Scotia came in
and consented that the province of
Nova Scotia should be bound by
the order to be made on the appeal.
Then the agreement goes on to say
what the court is to do, and it is
the form common to arbitration
agreements. It does not say that
when the Attorney-General of
Nova Scotia has been substituted
for the Halifax Company as a
party the court is to exercise all its
ordinary jurisdiction in appeal, but
it goes on to give the court a num-
ber of special powers, and to
restrict its powers in some respects.
The respondent’s right (that is
Gregory’s right) is to be limited to
a claim for damages on certain
grounds that are mentioned. The
court receives special power in de-
termining the question to have re-
gard to all equitable as well as legal
rights of the parties arising from
thefacts and documents in evidence,
without reference to the pleadings
or the present state of the record.
Well, that obviously points to a
question referred to at considerable
length, namely, the question of the
validity of an agreement between
Gregory and Hill, under which Hill
claimed the $40,000, and on which
an opinion has been expressed ap-
parently by one of the judges that
the agreement was obtained under
undue pressure and inﬂuence. The
court is to have power to make such
orders as to costs as to it shall seem
meet, and as it would have power
to do in a suit in equity, and the
agreement winds up by saying:
“ The order to be made pursuant to
this agreement shall be considered
a ﬁnal disposition of all contentions,
whether now in litigation or not,”
B.N.A. ACT, s. 101.—~RECOVERY OF LAND.
477
arising under the articles which are
the subject of dispute in the suit.
“ Their Lordships consider that
‘in deciding the case the Supreme
Court was not acting in its ordinary
jurisdiction as a Court of Appeal,
but was acting under the special
reference made to it under this
agreement. Their Lordships are dis-
posed to think that even if it were
open to them to give leave to appeal
in this case, the questions raised are
not of sufficient magnitude or public
interest to induce them to depart
from the ordinary rule, that persons
who have gone to the Supreme
Court of Canada, and have there
failed, shall not proceed to appeal
to Her Majesty in Council; but
they do not go into that, because
they consider that in this case an
appeal does not lie to the Queen
in Council.” Appeal dismissed
with costs.
KEARNEY v. CREELMAN, Feb.
17, 1886, 14 S. C. R. 33, affirming
18 S. C. N. S. (6 Russ. & Geld.) 92.
This was an action for the recovery
of land in Nova Scotia. The plain-
tiff contended that the sale of the
land under a decree in a Chancery
suit was bad, inasmuch as he alleged
the only way in which land of a
deceased person can be sold in Nova
Scotia is by a petition to the Gover-
nor in Council. He also attacked
the validity of the mortgages and
the proceedings in the foreclosure
suit. Judgment was given against
the claim by a judge sitting without
a jury. This was affirmed by the
S. C. N. S., which court was
atﬁrmed by S. C. Canada, on the
ground that even if the sale was
not good, the title to the land was
outstanding in the representatives
of the mortgagee, and the plaintiff
could not recover in an action of
ejectment, but the majority of the
Court, Ritchie, C.J., Strong, Four-
nier, and Gwynne, J J ., held the
sale was valid, Strong, J ., adding
that the Imperial Act 5 Geo. 2.
c. 7. was valid in Nova Scotia, not
having been altered by any Nova
Scotia Act. Henry, J ., doubted
on this last point. [5iGeo. 2. c.
7. is repealed by S. L. R. Act,
1887]
1886, Nov. 13.
refused.
ARPIN v. THE QUEEN, 17 Dec.
1887, 14 S. C. R. 736, which
alﬁrmed B. Quebec. Aquestion
of fact whether the Government
had undertaken a contract to
supply waggons to carry hay. The
court of ﬁrst instance held the
Government had so contracted.
The Bf Quebec reversed that
decision, and the S. C., without
entering into the merits, followed the
ruling of the Q. B., the judgment
being wholly founded upon ques-
tions of fact. [See 10 Can. Gaz.
275.
1887, Dec. 29. [Present, Lord
Fitzgerald, Lord Hobhouse, Sir
Barnes Peacock, and Sir R. Couch]
Special leave to appeal refused.
EXCHANGE BANK OF CANADA 2).
BANQUE DU PEUPLE, 22 June 1887,
S. C.; Cassels’ Dig., 1893, 79.
The Supreme Court was equally
divided [Ritchie, C.J., Fournier
and Henry, J J ., for atﬁrmance,
Strong, Taschereau, and Gwynne,
J J ., for reversing] as to whether
Craig, the manager and president of
the Exchange Bank, had authority,
and was acting within the scope of
his duties in accepting four cheques
of'G. which were not to be paid
until a subsequent date, and which
the Banque du Peuple had dis-
counted. The Q. B. Quebec held
the Exchange Bank liable. The
S. C. being equally divided, this
decision stood.
1887 , July 22. [Present, Lord
Hobhouse, Sir Barnes Peacock, Sir
James Hannen, and Sir R. Couch]
Special leave refused.
LUCY MAc QUEEN v. THE
QUEEN, Dec. 13, 1887, 16 S. CR.
1. The judgment of Gwynne, J .,
in the Exchequer Court, Ontario,
stood; the S. C., composed of
Ritchie, C.J., Strong, Fournier,
Special leave
KEARNEY v.
CREELMAN.
ARPIN v. THE
QUEEN.
EXCHANGE
BANK OF
CANADA v.
BANQUE DU
PEUPLE.
Lucv MAc-
QUEEN 'v. THE
QUEEN.
478
B.N.A. ACT, s. 101.——AWARD CASE.
LUCY MAO-
QUEEN v.
THE QUEEN.
BEAUDET v.
NORTH SHORE
RAILWAY
COMPANY.
FoRsvTII v.
BURY.
Henry, Taschereau, and Gwynne,
J J ., being equally divided.
1888, July 14. Lord Hob-
house, Sir. R. Couch, Sir Barnes
Peacock. Refused special leave
to appeal, as it appeared to their
Lordships the proper person did
not seem to be appealing, the
MacQueens having conveyed the
whole of the lands to the officer
appointed to acquire the lands for
the Rideau Canal, in fee, for £1,200.
BEAUDET 1;. NORTH SHORE
RAILWAY COMPANY, Dec. 14,
1887, 15 S. C. R. 44, reversing
Q. B. Quebec, restoring judg-
ment of the Sup. Ct., holding
that the arbitration was quite
regular,ﬂand the award perfectly
good and binding on the parties.
The railway company applied
for special leave to appeal. Their
contentions were: (1) That the
arbitrators did not at their ﬁrst
meeting appoint a time for a
ﬁnal meeting; and (2) That the
description of the land differs from
that in the submission.
It was argued that the Q. B.
Quebec had found that there was
a fatal discrepancy between the
terms of the notice and the award,
the material thing being the cor-
rect description of the land.
1888, 11th Feb. The Judicial
Committee [Lord Hobhouse, Lord
Macnaghten, Sir Barnes Peacock,
and Sir R. Couch] were of opinion
this was an appropriate case for
the Supreme Court to settle, and
their judgment ought to be ﬁnal.
[See 10 Can. Gaz. 463.] .
It may be noted that if the
parties had come straight from the
Q. B. Quebec to the Judicial
Committee, they would have had a
Privy Council decision. '
FORsYTH 'v. BURY, June 14,
1888, 15 S. C. R. 543 [Strong,
Fournier, and Taschereau, J J .,
Ritchie, C.J., and Gwynne, J ., dis-
senting], alﬁrming Q. B. Quebec,
which had reversed the Sup. Ct. The
question raised was as to the sale of
the Island of Anticosti. Strong, J .,
gave the following as the facts :—
This action was instituted by the
respondent as one of several co—
owners of the Island of Anticosti
for the licitation of the property,
and the appellant, being also owner
of a share in the island, was a de-
fendant in the action. The appel-
lant pleaded no plea or defence
raising any question as to the vali-
dity of the plaintiff’s title, either by
challenging the constitutional cha-
racter of the charter granted (by
the Dominion) to the Anticosti
Company (the plaintiff’s immediate
auteurs), or by impeaching the
legality of the company under the
provisions of the charter, but al-
lowed a judgment ordering the
licitation of the property to be ren—
dered sub silentz'o. Pursuant to
judgment thus rendered, the pro-
perty was sold and the purchase
money lodged in court. There-
upon the prothonotary made his
report of distribution of the moneys
thus arising from the sale, by which
he collocated the parties to the
action. The appellant, Mrs. For—
syth, has contested this collocation
so far as relates to the moneys
allowed to the respondent by an
opposition, in which she attacks the
respondent’s title to the share of
this property which he claimed in
the action, and has thus for the
ﬁrst time raised the questions which
have been argued in the appeal.
His Lordship then said that by
allowing a judgment for licitation
to pass without objection the ap-
pellant must be considered to have
admitted the respondent’s title, and
between these parties the matter
was res judicata, although his
Lordship was convinced that the
charter of the Anticosti Company
was ultra wires the Dominion, and
also that the company had no autho-
rity to acquire the property of the
respondent- until the amount of
share capital provided for by the
Act of incorporation had been in
good faith subscribed for, and 10
per cent. thereon bondﬁde paid up,
B.N.A. ACT, s. 101.-—RY. COY’S CONTRACT.
479
neither of which pre-requisites had
been complied with.
1888, July 28. Sir Barnes Pea-
cock [there being also present Lord
Hobhouse and Lord Macnaghten],
in refusing special leave to appeal,
said : If the appellant had opposed
the grant of the decree on the
ground that the sale to Bury was
not valid, the constitutional ques-
tion might have been argued, but
that opportunity not having been
taken the question could not be re-
opened. 11 Can. Gaz. 418.
MCMILLAN (plaintiff) v. THE
GRAND TRUNK RAILWAY, March
18, 1889, 16 S. C. R. 543, reversing
15 O. A. R. 14 and 12 O. R. 103.
This was a claim for damage to
goods sent from Toronto to the town
of McGregor (Portage La Prai-
rie being afterwards substituted),
Manitoba. The action was raised
against the Grand Trunk Railway
Co. and the Canadian Paciﬁc Rail-
way jointly. The goods were found
in possession of the latter line
when damaged, and the plaintiff
had accepted a sum of money from
them as to his claim against them.
The Grand Trunk Railway Co.
pleaded a special clause in their
contract that they were not liable
for any damage occurring outside
their limits. In the S.C.,'Strong and
T aschereau, J J ., held that the loss
having occurred after the transit
was over, the condition reduced the
contract to one of mere bailment, and
the railway was not liable. Fournier
and Gwynne, JJ., held the com-
pany liable. Ritchie, C.J., was
absent when judgment was deliver-
ed, but sent a note, without stating
his reasons, that the appeal of the
Grand Trunk should he allowed.
In that case it was queried, Was a
release of one of several tort feasors
a bar to an action against the other P
[See the decision of the House
of Lords, Palmer v. Wick, and
Pulteneytown Steam Shipping Co.,
June 5, [1894] A. C. 318; 71
L. T. 163.]
1889, May 17. [Lord Hobhouse,
Lord Macnaghten, and Sir R.
Couch.] Special leave to appeal
refused.
ALEXANDER (defendant) '0. VYE,
April 30, 1889, 16 s. o. R. 501,
affirming 28 S. C. N. B. 89.
The action was one of libel. The
defendant pleaded not guilty, and
the sole question was as to the
admissibility of evidence by which
it was sought to establish that
the defendant was the author of
the newspaper article containing
the libel. The evidence in ques-
tion was that of the editor of
the newspaper, who had thrown
the MS. away after it had been
set up in type, and could only
say from his recollection of the
writing as compared with a subse-
quent letter of the defendant that
the previous document was also
written by the defendant.
1889, Nov. 9. Special leave re-
fused. [Present, Lord Hobhouse,
Lord Macnaghten, Sir B. Peacock,
and Sir R. Couch]
BICKFORD AND THE ERIE AND
HURON RAILWAY Co. v. CoRPoRA-
TIoN 0F CIIATHAM, Jan. 15, 1889,
16 S. C. R. 235, p. 296. Owing
to the difference between the judges
of the S. C., the appeal and cross
appeal from 14 O. A. R. 32, which
varied 10 O. R. 257, were dismissed
without costs.
The action was brought by
Bickford and others to compel the
delivery by the defendants of cer-
tain debentures to the amount of
$30,000 under a bye-law of the
defendants. The question was
substantially limited on the part of
the plaintiffs to whether they had
fulﬁlled certain conditions binding
on them as to the erection of a
station.
1889, 9 Nov. [Lord Hobhouse,
Lord Macnaghten, Sir Barnes Pea-
cock, and Sir R. Couch]. Special
leave refused on the ground that
the appeal involved no question of
great public importance.
McMILLAN r.
GRAND TRUNK
RAILWAY.
ALEXANDER r.
VYE.
BICKFORD AND
ERIE & HURON
RAILWAY Co.
v. CoRroRATioN
or CHATEAM.
4180 B.N.A. ACT, 8. 101.--PRIORITY OF CREDITOBS.
CORPORATION
OF PoNTIAc v.
Ross.
THE QUEEN 1'.
THE MARITIME
BANK.
GRAND TRUNK
RAILWAY v.
COUNTY OF
HALTEN.
CORPORATION
OF TORONTO v.
ATT.-GRN. oF
DOMINION.
CORPORATION OF PoNTIAc a.
Boss, March 10, 1890, 17 S. C.
R. 406, affirming Q. B. Quebec.
The question was whether deben-
tures were valid, they having been
signed by a warden who was merely
such de facto and had not a strictly
legal right to the office.
‘ 1890, Nov. 29. Special leave're—
fused. [Lord Halsbury, L.C., Lord
Hobhouse, Lord Macnaghten, Sir
B. Peacock, Sir R. Couch, and
Lord Shand]
THE QUEEN v. THE‘ MARITIME
BANK, Dec. 14, 1889, 17 S. C. R.
657, reversing 27 S. C. N. B. 351.
The Maritime Bank stopped pay-
ment, and, being quite insolvent,
questions arose as to priorities.
The Dominion Safety Fund Life
Association had by the Canadian
insurance law to ﬁnd $50,000 se-
curity before it could obtain a
licence to carry on business. They
obtained this security by paying into
the Maritime Bank $45,000 and
$5,000 to another bank. For the
3545.000 a deposit receipt was given
to the Receiver-General, and was
to the eifect that the Dominion
Safety Fund Life Association had
deposited the amount stated in the
said bank, payable to the order of
the Minister of Finance of the
Dominion in trust for the Domi-
nion Safety Fund Life Association.
That was accepted by the Govern-
ment as security for the amount of
$45,000. In the event of the in-
solvency of the assurance associa-
tion these two amounts of $45,000
and $5,000 would be taken as
assets to discharge their liabilities.
On the stoppage of the Maritime
Bank the Dominion Safety Fund
Life Association obtained leave in
Canada to prosecute the suit in the
name of Her Majesty, the question
being, could the petitioners in this
case take priority to the notes of
the bank, notwithstanding sec. 79,
R. S. C. (1886) c. 120., and, se-
condly, was the deposit of $45,000
a Crown debt at all. The SC.
held, reversing S. C. N. B. [Sir
Henry Strong, C.J., dissenting],
that the $45,000 had never ceased
to be money belonging to the asso-
ciation. In the Privy Council the
petitioners contended that if this
decision was not reversed the as-
sociation would have to ﬁnd another
$45,000.
1890, July 19. [Lord Watson,
Lord Macnaghten, Sir Barnes Pea-
cock, and Sir R. Couch] Refused
special leave to appeal. [See 15
Can. Gaz. 394.]
HOSKIN, administrator of Ross,
v. HURTEAU, Dec. 11, 1890, 18
S. ‘C. B’. 713, affirming the court
below. The question was as to the
property in timber. buyer of
timber on credit pledged it on the
security of the warehouse receipt
with the plaintiffs. The seller
did not separate the quantity sold
from the larger bulk in which it
was intermingled, and insured the
whole stock of timber as his own.
Held by the S. C. that the pro-
perty still remained in the seller.
1891, 4 July. Leave to appeal
to Her Majesty in Council refused.
GRAND TRUNK RAILWAY v.
COUNTY OF HALTEN, Feb. 20,
1893, 21 S. C. R. 716 [Sir H.
Strong, C.J., Fournier, Taschereau,
Gwynne, and Patterson, J l],
affirming 19 O. A. R. 252.
The question was whether the
Corporation of Halten were en-
titled to recover the whole amount
of a bonus paid to the Hamilton
and North-Western Railway in aid
of the road; the condition of the
bond being that if the railway
ceased to be an independent road
within twenty-one years the bonus
was to be repaid. The railway had
become merged in the Grand Trunk
Railway within the twenty_one
years. The S. C. held the bonus
repayable.
1893, 25 March. Special leave
refused.
CORPORATION 01? TORONTO v.
ATT.-GEN. 0F DOMINION, Feb. 20,
1893, 23 S. C. R. 514, reversing a
B.N.A. ACT, s. 101.—WHERE PLAINLY RIGHT. 481
decision, 18 O. A. R. 622; 20 O. R.
19, in favour of the city of Toronto.
The facts are thus given by Sir
Henry Strong, C.J. : The question
represented for decision involves
the validity, as applied to the
Crown representing the Dominion
Government, of a bye-law of the
city of Toronto, dated 23 April
1888. By the bye-law it was
enacted that all half-yearly water
rates paid within the ﬁrst two
months of the half year for which
they are due shall be subject to a
reduction of 50 per cent, save and
except in the cases of Government
or other institutions which are
exempt from city taxes, in which
cases the said provisions as to dis-
count shall not apply. The Crown
in right of the Dominion has vested
in it certain public property in
the city of Toronto-namely, the
Custom House and the Customs
Warehouse, the Post Oﬂice and
the Inland Revenue, and Receiver-
General’s Office, and for several
years past, prior to the institution
of this action, water had been
supplied to these buildings by the
_ Waterworks Department of the
city of Toronto. From the date
of the bye-law the Waterworks De-
partment refused to make any re-
bate on the payment by the Do-
minion Government of its Water
rates within the time prescribed by
the bye-law, and the full amount
of these rates have been paid under
protest. This action was brought
by the Dominion to recover back
the amount of the discount or re-
bate, equal to one half of the Whole
amount paid. By the B. N. A. Act,
the property of the Dominion is
exempt from taxation.
1893, July 29. [Present: Earl of
Selborne, Lord Hobhouse, Lord
Macnaghten, Lord Morris, and Sir
R. Couch.] Their Lordships refused
special leave, considering the judg-
ment of the S. C. so plainly right.
[See 21 Can. Gaz. 414.] .
BOULTON AND ALGOMA TRAD-
ING CO. v. SHEA, March 13, 1894,
S 2340.
22 S. C. R. 742, affirming Q. B.
Ontario.
A question between lessor and
lessee, wherein the S. C. held the
lessor was not entitled to bring an
action for arrears of rent, payment
of use and occupation, damage for
breach of covenant in removing
gravel, &c., against the lessee until
he was paid for his improvements.
It appeared that the Algoma Trading
Co. had leased certain Crown lands
to Shea. The lease contained a
covenant by Shea not to remove
gravel, &c. Shea ascertained no
Crown patent had issued to
the company, and thereupon sold
gravel, and asked for a patent for
himself. But the Crown granted
a patent to the company on con-
dition they paid Shea for his im-
provements. There was an award
as to these, but it was not taken
up. The company afterwards as-
signed their patent to Boulton,
who thereupon brought this action
against Shea for rent, 8130. Held by
the S. C. that he was not entitled
to do so, until he had paid Shea
for his improvements.
1894, June 23. [Present: Lord
\Vatson, Lord Hobhouse, Lord
Morris, and Sir R. Couch.] Special
leave to appeal refused.
CoRPoRATIoN OF VANCOUVER v.
CANADIAN PACIFIC RAILWAY, Feb.
20, 1894, 23 S. C. R. 1, affirming
2 S. C. B. C. 306, 12 Dec. 1892,
which had allowed the claim of the
Canadian Paciﬁc Railway to a man-
datory injunction ordering the city
to remove embankments and works,
and to restrain the city from con-
tinuing to commit any trespass on
a certain portion of the foreshore
of Burrard Inlet. The petitioners
stated that the line of the Canadian
Paciﬁc Railway ran along nearly
the whole foreshore of Burrard Inlet,
and formed an obstacle to the free
use‘of the waters of the harbour; that
the petitioners therefore constructed
an embankment to carry a street,
known as Gore Avenue, to the
Waters of the inlet, and they claimed
HH
BOULTON AND
ALeoMA
TRADING Co.
'0. SHEA.
CoRPoRA'rIoN
or VANCOUVER
v. CANADIAN
PACIFIC
RAILWAY.
482
B.N.A. ACT, s. 101.——ARBITRATION CASE.
CORPORATION
OF VANCoUvER
v. CANADIAN
PACIFIC
RAILWAY.
LEMOINE v.
CITY OF
MONTREAL.
NoRTH~WEsT
TRANsPoRTA-
TION Co. v.
MACKENZIE.
ATT.-GEN. OF
QUEBEC o.
MURRAY.
"MURRAY, 25 L. C. J.
a right to cross the railway line
by a level crossing. This was
the embankment the injunction was
directed against. The petitioners
contended that the railway was a
public nuisance, and that the point
was of enormous importance to the
city, and,if the contention of the rail-
way companywas correct, the means
of communication with the waters
of the harbour would be cut off.
1894, July 14. [Present: Lord
‘Vatson, Lord Hobhouse, Lord
Macnaghten, Lord Morris, and Sir
R. Couch] Special leave refused.
LEMOINE v. CITY or MONTREAL,
31 May 1894, 23 S. C. R. 390, Sir
Henry Strong, C.J., Fournier,
T aschereau, Sedgewick, and King,
J.J.,afﬁrming Q. B. Quebec.
The question was as to the
validity of an award for certain
lands taken by the city of Mont-
real under sec. 7 of 35 Vict. c. 32. Taschereau, J ., said: In
cases of this nature, the court, as
in reviewing the ﬁnding of a jury,
or a report of referees, upon ques-
tions of fact cannot reverse un-
less there is such a plain and
decided preponderance of evidence
against the ﬁnding of the arbitra-
tors or commissioners as to border
strongly on the conclusive ; or some
wrong principle acted on; or
something overlooked which ought
to have been considered.
1895, May 18. [Present: Lord
Watson, Lord Hobhouse, Lord
Macnaghten, and Sir R. Couch]
Special leave refused.
NORTH-WEST TRANSPORTATION
CO. v. MACKENZIE. Appeal from
.a judgment of' S. C. of 26 June,
1895, aﬂirming Ct. of App. Ont. of
13 Nov. 1894.
The question arose out of ac-
counts in re the movement of grain.
1895, July 20. [Present: Lord
Watson, Lord Macnaghten, and Sir
R. Couch] Special leave refused.
Appeals from Courts other than
S. C. refused.
ATT.-GENERAL or QUEBEC 'v.
208, 22
March 1880, in which Dorion,
C.J., Monk, Ramsay, T essier, and
Cross, J J., held disallowing the
appeal of the Att—Gcn. from a
judgment dismissing the proceed-
ings taken by him for cancellation
of letters patent issued by the
Crown, on the ground that no ap-
peal lies by him after the expira-
tion of 40 days from the date of
rendering the judgment. See art.
1,037 of Code of Civil Procedure.
1881, March 15. [Present: Sir
B. Peacock, Sir M. E. Smith, Sir
R. Collier, and Sir R. Couch]
Special leave refused.
If the statutory time allowed for
giving notice of intention of appeal
is not attended to, the appeal will
be struck out of the list. British
India Steam Navigation Co. 1:.
Owners of the s.s. “ Brenhilda.”
L. R. 8 Ind. App. 159. The action
was raised by the plaintiﬁ’ in June
187 9 in the Bengal Admiralty
Court to recover compensation for
damage through a collision between
the plaintiff’s vessel “ Ava ” and
the “ Brenhilda,” in which the
“ Ava” sunk, and there was great
loss of life and property. The
Admiralty Court found both vessels
to blame, and ordered the owners
of the “ Brenhilda ” to pay £25,000,
being half the damage occasioned
to the “Ava,” less a moiety of the
damage caused the “ Brenhilda,” in
all £3,000. The High Ct. [Sir R.
Garth and Pontifex] affirmed that
decision.
The owners of the “Brenhilda ”
gave notice of appeal, but not
within the statutory time allowed
for the assertion of appeals, 15 days
from the pronouncing of the decree;
see Rule 35, made in pursuance of
2 & 3 Will. 4. C. 51.
1881, March 15. The plaintiﬁs
moved to dismiss the appeal for
incompetency. Sir Barnes Pea-
cock, Sir M. E. Smith, Sir R.
Collier, and Sir R. Couch allowed
the objection, and ordered the
cause to be struck out of the list.
Times, 16 March 1881, 4a.
B.N.A. ACT, s. 102.—ASSETS OF PROV.
483
The special reference cases are
given above, see Ramsay v. Justices,
and the cases following. The late
boundary cases decided on special
reference were: Province of On-
tario 'v. Province of Quebec, 11 BOUNDARY
March 1878, Queen’s Order, 26 CASES.
March 1878; Province of Ontario
2). Province of Quebec, 22 July
1884, Queen’s Order, 11 Aug. 1884.
VIII—REVENUES; DEBTS; AssETs; TAxATIoN.
102. All duties and revenues over which the re- Creation of
spective Legislatures of Canada, Nova Scotia, and New Revenue Fund
li’mmswick before and at the Union had and have
power of appropriation, except such portions thereof as
are by this Act reserved to the respective legislatures‘
of the provinces, or are raised by them in accordance
with the special powers conferred on them by this Act,
shall form one Consolidated Revenue Fund, to be appro-
priated for the public service of Canada in the manner
and subject to the charges in this Act provided.1
1In ATT.-GEN. or ONTARIo v.
MERGER, Nov. 14, 1881, 5 S. C. R.
538, reversing [Sir WV. Ritchie,
C.J., and Strong, J., dissenting]
6 O. A. R. 576, which aflirmed
Proudfoot, V.C. ; in P. C. July 18,
1883, 8 App. Cas. 767; 52 L. J.
P. C. 84; 49 L. T. 312 [see post],
it was decided lands in Canada,
which escheated for want of heirs,
belonged, notwithstanding the sec-
tion, to the province in which they
are situate, and not to the Domin-
ion. In that case, Earl of Selborne,
L.C., in delivering judgment, said:
“ If there had been nothing in the
Act leading to a contrary conclu-
sion, their Lordships might have
found it difficult to hold that the
word “ revenues” in this section
did not include territorial as well
as other revenues; or that a title
in the Dominion to the revenues
arising from public lands did not
carry with it a right of disposal
and appropriation over the lands
themselves. Unless, therefore, the
casual revenue arising from lands
‘escheated to the Crown after the
Union is excepted and reserved to
the provincial legislatures, within
the meaning of this section, it
would seem to follow that it be-
longs to the Consolidated Revenue
Fund of the Dominion. If it is so
excepted and reserved, it falls
within sec. 126 of the Act” [which
his Lordship read, and continued : ]
“Their Lordships, for the reasons
above stated, assumed that the bur-
den of proving that escheats, subse-
quent to the Union, are within the
sources of revenue excepted and
reserved to the provinces, to rest
upon the provinces. But if all or-
dinary territorial revenues arising
within the provinces are so excepted
and reserved, it is not, a priori,
probable that this particular kind of
casual territorial revenue (not being
expressly provided for) would have
been, unless by accident or over-
sight, transferred to the Dominion.
The words of the statute must re-
ceive their proper construction,
whatever that may be ; but if this is
doubtful, the more consistent and
probable construction ought to be
preferred. And it is a circumstance
not without weight in the same
direction, that while ‘ duties and
Consolidated
ATT.-GEN. or
ONTARIO 'v.
MERCER.
H112
41841 B.N.A. ACT, 5. 102—THIS SECTION EXAMINED.
ATT.-GEN. OF
ONTARIO 'v.
MERCER.
revenues ’ only are appropriated
to the Dominion, the public pro-
perty itself, by which territorial re—
venues are produced [as distinct
from revenues arising from it], is
found to be appropriated to the
provinces.” Then his Lordship
deals with the exception in sec.
102.
“ The words of the exception in
sec. 102 refer to revenues of two
kinds: (1) Such portions of the
pro-existing ‘ duties and revenues ’
as were by the Act ‘reserved to
the respective legislatures of the
provinces’; and (2) such duties
and revenues as might be ‘ raised
by them, in accordance with the
special powers conferred on them
by the Act.’ It is with the former
only of these two kinds of revenues
that their Lordships are now con-
cerned; the latter being the pro-
duce of that power of ‘ direct taxa-
tion within the provinces in order
to the raising of a revenue for
provincial purposes,’ which is con-
ferred upon provincial legislatures
by sec. 92 of the Act.” His Lord-
ship continued [p. 77 6 of 8 App.
Cas.] : “ Their Lordships are not
satisﬁed that see. 102, when it
speaks of certain portions of the
then existing duties and revenues
as ‘ reserved to the respective
legislatures of the provinces,’
ought to be understood as referring
to the powers of provincial legisla-
tion conferred by sec. 92. Even,
however, if this were so held, the
fact that exclusive powers of legis-
lation were given to the provinces
as to ‘ the management and sale of
the public lands belonging to the
province’ would still leave it
necessary to resort to see. 109 in
order to determine what those
public lands were. The extent of
the provincial power of legislation
over ‘property and civil rights in
the province ’ cannot be ascer-
tained without at the same time
ascertaining the powers and rights
of the Dominion under sees. 91 and
102, and therefore cannot throw
much light upon the extent of the
exceptions and reservations now in
question.”
Then in a Quebec case it was
held that this section and sec. 117
are to be reconciled by deciding
that forfeitures, or escheats, fall to
the provinces. Att.-Gen. of Que-
bec o. Att.-Gen. of the Dominion,
8 Sept. 1876, 2 Q. L. R. 236
[see past].
Nor does the section hand over
Crown lands which are reserved
for the use of the Indians. In
St. Catherine’s Milling and Lumber
Co. v. The Queen, the Att.-Gen.
of the Dominion intervening,
June 20, 1887, 13 S. C. B. 577,
afﬁrming 13 C. A. R. 148, aﬂirm~
ing 10 O. R. 196; in P. C. Dec. 12,
1888, 14 App. Cas. 46; 58 L. .I.
P. C. 54; 60 L. T. 197, Lord
Watson, in delivering an affirming
judgment, said [14 App. Cas.
p. 56] as to see. 102 :—
“ It enacts that all ‘ duties and
revenues ’ over which the respec-
tive legislatures of the united pro-
vinces had and have power of ap-
propriation, ‘ except such portions
thereof as are by this Act reserved
to the respective legislatures of the
provinces, or are raised by them in
accordance with the special powers
conferred upon them by this Act,
.‘ shall form one consolidated fund,
to be appropriated for the public
service of Canada.’ The extent to
which duties and revenues arising
within the limits of Ontario, and
over which the legislature of the
old province of Canada possessed
the power of appropriation before
the passing of the Act, have been
transferred to the Dominion by
this clause, can only be ascertained
by a reference to the two excep-
tions which it makes in favour of
the new provincial legislatures.
“The second of these exceptions
‘has really no bearing on the pre—
sent case, because it comprises
nothing beyond the revenues which
provincial legislatures are em-
powered to raise by. means of direct
taxation for provincial purposes
in terms of sec. 92.
B.N.A. ACT, A 102—FIRST
EXCEPTION OF SECT. 485
“ The ﬁrst of them, which appears
to comprehend the Whole sources of
revenue reserved to the provinces
by sec. 109, is of material conse-
quence.” [His Lordship read
sec. 109, and continued:] “111
connection with this clause, it may
be observed that by sec. 117 it is
declared that the provinces shall
retain their respective public pro-
perty not otherwise disposed of in
the Act, subject to the right of
Canada to assume any lands or
public property required for forti-
ﬁcation or for the defence of the
country. A different form of ex-
pression is used to deﬁne the sub-
ject-matter of the ﬁrst exception,
and the property which is directly
appropriated to the provinces; but
it hardly admits of doubt that the
interests in lands, mines, minerals,
and royalties, which by sec. 109
are declared to belong to the pro-
vinces, include, if they are not
identical with, the ‘ duties and reve-
nues’ ﬁrst excepted in sec. 102.”
His Lordship then said sec. 109
was suﬁicient to give to each pro-
vince the entire beneﬁcial interest
of the Crown in all lands within
its boundaries, with the exception
of such lands as the Dominion
acquired right to under secs. 108
and 117.
The 13th section of the Manitoba
Act of 1878, c. 43., was as follows:
“ All ﬁnes and penalties imposed
and levied by the police magis-
trate appointed under this Act,
shall be, unless otherwise provided,
paid into the City (Winnipeg) Ex-
chequer, and form a fund for the
payment of the salary of the police
magistrate,” &c. The Minister of
Justice objected to this, so far as it
attempted to control or dispose of
ﬁnes and forfeitures imposed by
the criminal law.
A somewhat similar section in a
British Columbia Act was also
objected to. See Prov. Leg, 1886,
p. 647.
103, The Consolidated Revenue Fund of Canada
shall be permanently charged with the costs, charges,
and expenses incident to the collection, management,
and receipt thereof, and the same shall form the ﬁrst
charge thereon, subject to be reviewed and audited in
such manner as shall be ordered by the Governor-
General in Council, until the Parliament otherwise
provides.
104:, The annual interest of the public debts of the
several provinces of Canada, Nova Scotia, and New
Brunswick at the Union shall form the second charge
on the Consolidated Revenue Fund of Canada.
105. Unless altered by the Parliament of Canada,
the salary of the Governor-General shall be ten thou-
sand pounds sterling money of the United Kingdom of
Great Britain and Ireland, payable out of the Consoli-
dated Revenue Fund of Canada, and the same shall
form the third charge thereon.
ATT.-GEN. or
ON'rARIo t’.
MERCER.
Expenses of
collection, &c.
Interest of
provi ncial
public debts.
Salary of
Governor-
General.
4186 B.N.A. ACT, s. lO8.—-PUBLIC WORKS.
Appropriation
from time to
time.
Transfer of
stocks, &c.
Transfer of
property in
Schedule.
106, Subject tothe several payments by this Act
charged on the Consolidated Revenue Fund of Canada,
the same shall be appropriated by the Parliament of
Canada for the public service.
107. All stocks, cash, banker’s balances, and securi-
ties for money, belonging to each province at the time
of the Union, except as in this Act mentioned, shall
be the property of Canada, and shall be taken in re-
duction of the amount of the respective debts of the
provinces at the Union.
108, The public Works and property of each pro-
vince, enumerated to the third Schedule to this Act,
shall be the property of Canada.1
1 See sec. 92, sub-sec. 10.
This section enacts that the
public Works and undertakings
enumerated in Schedule 3 shall
be the property of Canada. As
speciﬁed in the schedule, these
consist of public undertakings
which might fairly be considered
to exist for the beneﬁt of all the
provinces federally united, of lands
and buildings necessary for carry-
ing on the Customs or postal ser-
vice of the Dominion, or required
for the purpose of national de-
fence, “ and of land set apart for
general public purposes.”
See Lord Watson in St. Cathe-
rine’s Milling and Lumber Co. v.
The Queen, Dec. 12, 1888, 14
App. Cas. p. 56, that the enumera-
tion cannot be reasonably held to
include Crown lands which are
reserved for Indians’ use; and
that those lands belong to the
provinces in which they are situ-
ated.
By this section all railways be-
longing to the province of Nova
Scotia passed to and became vested
in the Dominion, but not for any
longer interest therein than at the
date 1st July 1867 (the date of
the proclamation of the Dominion
B.N.A. Act) belonged to this pro-
vince.
THE WESTERN COUNTIES RAIL-
W'AY Co. v. ‘Vmnson AND AN-
NAPOLIS RAiLwAY Co., in S. C.
Nova Scotia, April 5, 1881, 14
S. C. (N. S.) R. 280 [Sir WV.
Young, C.J., Ritchie, E.J., and
Des Barres and Smith, J J ., James,
J ., dissenting], affirming 12 S. C.
(N. R. 376, which aﬂirmed the
judge in Equity, Russ. & Chesley’s
Eq. R. 288; in P. C. Feb. 22,
1882, 7 App. Cas. 178; 51 L. J.
P. C. 43; 46 L. T. 351.
Lord Watson delivered the fol-
lowing judgment [there being
also present Lord Blackburn, Sir
Barnes Peacock, Sir Robert P. Col-
lier, and Sir Arthur Hobhouse]:
“ In the present case, each of the
contending parties claims the ex-
clusive right to possess and work
the Windsor Branch Railway, in
the province of Nova Scotia. This
line was originally constructed as
one of the public railways of the
province, and was intended to be
part of a general system connect-
ing Halifax and other towns of
importance with the frontier of
the province of New Brunswick.
B.N.A. ACT, s. 108—DOM. AND RAILVVAYS.
487
After the passing of the British
North America Act, 1867, and in
accordance with its provisions, all
railways belonging to the province
of Nova Scotia, including the
line in question, passed to and
became vested in the Dominion of
Canada.
“The Chief Commissioner of
Railways for Nova Scotia, acting
under authority conferred upon
him by the provincial Act, 28
Vict. c. 23., entered, in November
1866, into an agreement with
Messrs. Punchard, Barry, and
Clark, of London, whereby those
gentlemen became bound to make
a railway, which was to be their
own property, from Windsor, one
of the termini of the branch in
question, to Annapolis. By that
agreement it was inter alia pro-
vided that, before the new line
from Windsor to Annapolis was
opened by Messrs. Punchard,
Barry, and Clark, a traﬁic arrange-
ment was to be made between
them and the provincial Govern-
ment ‘for the mutual use and
enjoyment of their respective lines
of railway between Halifax and
Windsor, and Windsor and An-
napolis, including running powers,
or for the joint operation thereof,
on equitable terms to be settled by
two arbitrators, to be chosen by
the parties in case of difference.’
“By an Act of the Legislature
of Nova Scotia, passed upon the
7th May 1867 (30 Vict. c. 36.),
Messrs. Punchard, Barry, and
Clark were constituted a body
corporate, by the name of the
Windsor and Annapolis Railway
Company; and the agreement of
November 1866 between them and
the Chief Commissioner of Rail-
ways was, by the same Act, adop-
ted and conﬁrmed.
“ The Windsor Branch Railway
became the property of the Do-
minion upon the 1st July 1867,
being the day appointed by Her
Majesty, in terms of sec. 4 of the
British North America Act, for
the provisions of that Act coming
into operation. And, on the 22nd
September 1871, the Government
of Canada, as then owners of the
THE ‘VESTERN
COUNTIES
RAILWAY Co. v.
WINDsoR AND
railway, and in implement of the ANNAPOLIS
obligation to make a ‘ traffic ar-
rangement ’ which is contained in
the agreement of November 1866,
entered into a new agreement
with the respondents, the Wind-
sor and Annapolis Railway Com-
pany. .
“It is unnecessary to consider
in detail the whole terms of the
agreement of 1871. Its provi-
sions, so far as bearing upon the
present case, are in substance these.
The exclusive use and possession
of the Windsor Branch Railway
was made over to the respondent
company, with running powers
over the trunk line, also belonging
to the Dominion Government,
which connects the “Tindsor
Branch with Halifax. The Do-
minion Government was to main-
tain the Windsor Branch as well
as the trunk line in workable
condition, whilst the respondent
company undertook to render and
adjust regular monthly accounts of
all traffic carried by them over these
lines, and to pay to the Govern-
ment, not later than twenty-one
days from the end of each month,
one third of their gross earnings
from such traﬁic. The company
also undertook to provide rolling
stock, and to run a certain number
of trains daily, with stated hours
of departure and arrival, and to
conduct their business and traﬁic
with impartiality and fairness. No
right of re-entry was reserved in
case of the company’s failure
punctually to make payment of
one third of their earnings, but it
was stipulated (art. 19) that ‘in
the event of the company failing
to operate the railways between
Halifax and Annapolis, then this
agreement shall terminate, and the
authorities may immediately pro-
ceed to operate the railway between
Halifax and 'Windsor as they may
deem proper and expedient.’ Last
of all, it was provided that the
RAILWAY Co.
488
B.N.A. ACT, 5. 108.-—DOM. AND RAILWAYS.
THE WEsTERN
COUNTIES
RAILWAY Co. v.
\VINnsoR AND
ANNArOLIs
RAILWAY Co.
agreement should take effect upon
the 1st day of January 1872, and
continue for twenty-one years, and
be then renewed on the same con-
ditions, or upon such other condi-
tions as might be mutually agreed
on.
“ In accordance with the fore~
going agreement, the respondent
company in January 187 2 took
possession of and worked the
Windsor Branch line. Shortly
afterwards the monthly payments
due to Government fell into arrear,
but these arrears were paid in full
in November 187 2, in consequence
of a threat that Government would
resume possession of tlie railway.
During the following year the
company again failed to make
payment of the third of the traﬂic
receipts for which they were liable
to the Dominion Government, who
intimated that, unless all arrears
were paid up on or before the 1st
October 1873, they would resume
possession.
“ On the 22nd day of October
1873, an Order of the Privy
Council of Canada was passed,
approving of a report, dated the
2lst of the same month, from the
Minister of Public Works, ‘stating
that the Windsor and Annapolis
Railway Company had failed to
operate the railway known as the
Windsor Branch, mentioned in
Order in Council of the 22nd
September 1871, and to comply
with the other terms and condi-
tions of that Order in Council, and
now owe $30,000 to the Govern-
ment of Canada, and though re-
peatedly called upon to pay have
failed to do so, and recommending
that, inasmuch as the said com-
pany have failed to operate one of
the railways between Halifax and
Annapolis, the Government of
Canada, known as “ the authori-
ties ” by the said Order in Council,
do proceed immediately to operate
the railway between Halifax and
Windsor.’
“ On the same day (the 22nd
October 187 the Governor-Gen-
eral in Council, subject to the
sanction of Parliament, approved
of a proposal made by the appel-
lant company for a transfer to
them of the \Vindsor Branch Rail-
way, upon these conditions :
“‘ 1st. The said company will
undertake to receive the said rail-
way and appurtenances on the ﬁrst
day of December, Anno Domini
eighteen hundred and seventy—
three, and from that date to work
it efficiently and keep the same in
repair at their own proper costs
and charges, collecting, receiving,
and appropriating to their own use
all the tolls and earnings of the
same.
“ ‘ 2nd. That on the completion
of the \Vestern Counties Railway
from Yarmouth to Annapolis (now
in course of construction), the said
railway and appurtenances, from
\Vindsor to the trunk line, shall be
and become absolutely the property
of the said Western Counties Rail-
way Company.
“ ‘ 3rd. That, in consideration of
the premises, the said company
hereby engage to prosecute the
work of building the railway from
Yarmouth to Annapolis, and com-
plete the same with all reasonable
despatch.’
“ On the 30th October 1873,
the Governor-General in Council
approved, subject as before to par—
liamentary sanction, of a further
proposal made by the appellant
company in these terms :— '
“ ‘ 1st. That the Western Coun-
ties Railway Company shall carry,
free of charge, all passengers hold-
ing Government tickets, on all their
passenger trains running between
Halifax and Windsor Junction.
“ ‘ 2nd. That the said company,
or their agents or assigns, shall
have running powers over the
Intercolonial Railway, between
Halifax and Windsor Junction,
with such privileges as have been
hitherto granted in the agreement
with the Windsor and Annapolis
Railway.’
“ On the 26th May 1874, an
B.N.A. ACT, 5. 108.—DOM. a
lee
Y WI NDSOR RAILWAY.
Act was passed by the Parliament
of Canada (37 Vict. c. 16.), entitled,
‘An Act to authorize the transfer
of the \Vindsor Branch of the
Nova Scotia Railway to the West-
ern Counties Railway Company.’
The proposals of the appellant
company, which were provision-
ally agreed to by the Orders in
Council of the 22nd and 30th
October 1873 respectively, were
set forth at length in Schedules A
and B appended to the Act, and
are referred to and sanctioned by
the enacting clauses. It will be
necessary, hereafter, to examine
this statute more closely, because
the appellant’s case is mainly
founded upon its provisions, and
the parties are widely at variance
as to their true import and effect.
“ Upon the 22nd June 1875, the
respondent company entered into
an agreement with the Minister of
Public Works of Canada, by which
the company, on the one hand,
undertook to alter the gauge of the
\Vindsor and Annapolis Railway
from ﬁve feet six inches to the
standard gauge of four feet eight
and one half inches, to deliver to
the Minister a certain quantity of
locomotives and other broad-gauge
plant, and to release all claims and
demands against the Government
of Canada up to the 1st day of
July 1875. On the other hand it
was agreed that, upon the change
of gauge being effected, all arrears
of trailic receipts, due by the com-
pany to the Government, which
had accrued up to 1st January
1875, should be discharged, and
that the Minister of Public Works
should then deliver to the com-
pany a like quantity of narrow-
gauge engines and rolling stock.
It was further stipulated that the
company should, on or before the
31st July 1875, make payment of
the third of gross earnings which
had accrued after the 1st January
1875, and that the proportion of
such traffic earnings due to the
Government, and thereafter accru-
ing, should ‘be paid monthly, as
provided in the said agreement
under which the company hold
and work the branch as aforesaid,
which (except as aforesaid) is
hereby declared in all respects in
full force and effect.’ In pursu-
ance of this agreement the re-
spondent company altered the
gauge of their line, and regularly
made the payments therein stipu-
lated, and an exchange of engines
and rolling stock was also made in
terms thereof.
“The respondent company re-
mained in full possession of the
Windsor Branch line, and con-
tinued to work the same from the
beginning of the year 1872 until
the 1st day of August 1877. On
that date the Dominion Govern-
ment took possession of the ‘Vind-
sor Branch line; and on the
24th September following, trans-
ferred the possession of it to the
appellant company, under the
agreement scheduled to the Cana-
dian Act of the 26th May 1874.
“ The respondent company, upon
the 10th October 1877, ﬁled a bill
in the Supreme Court of Nova
Scotia against the appellant com-
pany, wherein it was prayed, inter
alia, that the latter company
should be ordered to deliver up
possession to them of the Windsor
Branch Railway. The appellant
company appeared and demurred
to the bill, but their demurrer
was, on the 11th March 1878,
overruled by the judge in Equity,
and an appeal taken against that
judgment was dismissed by the
Supreme Court sitting in Banco,
upon the 29th August 187 8, James,
J., alone dissenting. The cause
then returned to the judge in
Equity, and after the appellant
company had put in their answer,
and evidence had been adduced by
both parties, Mr. Justice Ritchie,
upon the 1st March 1880, gave
judgment in favour of the re-
spondent company with costs;
and his judgment was affirmed
with costs by the Supreme Court
of Nova Scotia, on the 6th April
THE \VEsTERN
CoUNTIEs
RAILWAY Co. v.
WINDSOR AND
ANNAPOLIS
RAILWAY Co.
490 B.N.A. ACT, s. 108.—THIS SECTION EXAMINED.
THE WESTERN
COUNTIES
RAILWAY Co. v.
"WINDSOR AND
ANNAPOLIS
RAILWAY Co.
1881, James, J ., being again the
only dissentient judge.
“ Some of the points, unsuccess-
fully maintained by the appellant
company in the courts of Nova
Scotia, were not pressed in the
argument addressed to this Board.
The two propositions seriously
maintained bypthe appellants were
these :——(1) That the Act passed by
the Parliament of Canada upon
the 26th May 1874 (37 Vict.
c. 16.) extinguished all right and
interest which the respondent
company had in the Windsor
Branch Railway, by virtue of the
agreement of 22nd September
1871, and transferred to the ap-
pellant company a present right to
the exclusive possession, and a
future right to the exclusive pro-
perty, of the said railway; and
(2) that the Parliament of Canada
had, under the provisions of the
British North America Act,
1867, ample legislative autho-
rity to take away, without com-
pensation, any right in or relating
to the railway which might be
vested in the respondent com-
pany, and to transfer it to the
appellants. It is not disputed
that, if either of these propositions
be not well-founded, the appel-
lants’ case must fail.
“ The 108th section of the
British North America Act, 1867,
which must be read in connec-
tion with the third schedule of the
Act, had the effect of transfer-
ring, upon the lst day of July
1867, to the Dominion of Canada.
all railways which were the pro-
perty of the province of Nova
Scotia. Their Lordships are of
opinion that it had not the effect
of vesting in Canada any other
or larger interest in these railways
than that which belonged to the
province at the time of the statu-
tory transfer. Accordingly, the
Dominion took the property of
the Windsor Branch Railway, sub-
ject to the same obligation by
which the right of the provincial
Government was affected, viz., to
.any other speciﬁed date.
enter into a tralﬁc arrangement
with the respondent company, in
terms of the agreement conﬁrmed
by the provincial statute of the
7th'May 1867; and it was in pur-
suance of that obligation that the
Dominion Government entered into
the agreement of 22nd September
1871. The agreement thus made
was valid, and must continue
to receive effect until it has
been terminated by the default of
the respondent company, by the
mutual consent of parties, or by
the action of a competent legis-
lature.
“ As already stated, the appellant
companylnaintains that the agree-
ment in question has been“ pdt
an end to by the Act of a com-
petent legislature. In dealing
with that contention, it will be
convenient to consider, in the ﬁrst
place, whether, on the assumption
that the Dominion Parliament
had authority to enact the 37th
Vict. c. 16., the provisions of that
Act do extinguish those rights in
relation to the Windsor Branch,
which are conferred upon the re-
spondent company by the agree-
ment of 1871.
“ The proposals, or provisional
agreements, which are scheduled
to the Act 37 Vict. c. 16., contain
two distinct stipulations, the one
relating to the possession and use,
and the other to the property, of
the Windsor Branch Railway. By
the ﬁrst, the appellant company
‘ undertake to receive the said rail-
way and appurtenances on the ﬁrst
day of December, Anno Domini
eighteen hundred and seventy-
three,’ and to work it efficiently
thereafter. Although the com-
pany undertake to receive, there is
no corresponding obligation laid
upon the Government to give them
possession pf the railway, either
upon the 1st December 187 3, or at
By the
second of these stipulations it is
provided that, upon the completion
of the Western Counties Railway,
then in course of construction,
B.N.A. ACT, s. 108.~--DOM. & PUBLIC INTERESTS.
491
from Yarmouth to Annapolis, the
Windsor Branch Railway and its
appurtenances shall be and become
the absolute property of the appel-
lant company. The Governor-
General, with advice of his Coun-
cil, would probably have been
entitled, by virtue of the adminis-
trative powers conferred upon him
by the 12th section of the British
North America Act, 1867, to
make a valid agreement in regard
to the possession and working of
the line; but it is, at least, very
doubtful whether he would have
had the right to alienate the pro-
perty of the line, without the
sanction of the Dominion Parlia-
ment. Be that as it may, the
Parliament did interpose upon the
26th May 1874, to the effect, the
appellants say, of destroying the
previously subsisting agreement
between the Government and the
respondent company.
“Neither in the Act 37 Vict.
c. 16., nor in the schedules ap— _
pended to it, is mention made of
the agreement of 22nd September
1871, or indeed of any right or
interest of the respondent company
in the Windsor Branch Railway.
The canon of construction applic-
able to such a statute is that it
must not be deemed to take away
or extinguish the right of the re—
spondent company, unless it ap-
pear, by express words, or by plain
implication, that it was the inten-
tion of the legislature to do so.
That principle was affirmed in
Barrington’s case (8 Coke, 138a)
[4 Thomas’ Ed. p. 417], and was
recognised in the recent case of
The River Wear Commissioners
'v. Adamson, 2 App. Cas. 743.
The enunciation of the principle
is, no doubt, much easier than its
application. Thus far, however,
the law appears to be plain—that,
in order to take away the right, it
is not sufficient to show that the
thing sanctioned by the Act, if done,
will of sheer physical necessity put
an end to the right; it must also be
shown that the legislature have au-
thorized the thing to be done, at
all events, and irrespective of its
possible interference with existing
rights.
“ It appears to their Lordships
that there is nothing in the previ-
sions of the Dominion Act, 37 Vict.
c. 16., to warrant the inference that
the Parliament of Canada must
have intended thereby to enact that
immediate possession of the Wind-
sor Branch, for the purpose of
working it, was to be given to the
appellant company, under the agree-
ments scheduled, even though there
should be a subsisting arrangement
for the working of the line. In-
deed, the contrary appears from the
2nd section of the Act, to which
reference Will be made hereafter.
“ The preamble of the Act recites
the proposed transfer of the rail-
way to the appellant company, and
also a resolution of the Canadian
House of Commons, of date the
23rd of May 1873, to the effect
that the Government should be
authorized to enter into negotia-
tions for the transfer of the VVind-
sor Branch to some reliable asso-
ciation or company, ‘upon condi-
tion that such company extend the
railway from Annapolis to Yar-
mouth’ It makes no reference to
any right belonging to or asserted
by the respondent company, nor
does it refer to that part of the
scheduled agreement which relates
to the willingness of the appellant
company to undertake to receive
the railway and appurtenances
upon the 1st December 1873. It
is impossible, therefore, to gather
from the terms of the preamble an
intention to terminate at once any
temporary right of possession which
might belong to the respondent
company. The transfer of the
railway was obviously not expected
to take place at once. It was de-
pendent upon a condition which
might never be fulﬁlled, and which
admittedly has not yet been ful-
ﬁlled, viz., the completion of the
line from Yarmouth to Annapolis
by the appellant company. Re-
THE VVEsTERN
CoUNTIEs
RAILWAY Co. v.
WINDsoR AND
ANNAPoLIs
RAILWAY Co.
492
B.N.A. ACT, s. 108—DOM. AND NOVA SCOTIA.
TIIE WEsTERN
COUNTIES
RAILWAY Co. 'v.
WINnsoR AND
ANNAroLIs
RAILWAY Co.
sides, the transfer of the property
of the railway is nowise inconsist-
ent with the fact of working
arrangements affecting the trans-
feror’s right continuing to aﬁect
the right of the transferee.
“ Then comes the leading enact-
ment of the statute, as contained in
sec. 1, which is in these terms :—
‘ The agreements herein-before
referred to, and set forth in the
Schedules A and B to this Act,
being such as were adopted by the
orders of the Governor in Council
of the twenty-second and thirtieth
days of October eighteen hundred
and seventy-three, and all the
matters and things therein con-
tained, are hereby approved, and
declared to be as effectual to all
intents and purposes as if the said
agreements had been entered into
in pursuance of sutﬁcient authority
in that behalf, given before the
adoption of such agreements by
Act of the Parliament of Canada.’
“ It was argued for the appellants
that the effect of the preceding
clause is precisely the same as if
the Parliament of Canada had,
prior to October 1873, passed an
Act authorizing the Governor in
Council to make an agreement
with the appellant company in
terms of the proposals set forth in
Schedules A and B. That argu—
ment appears to be well founded;
but what would have been the
effect of such antecedent statutory
authority ? Their Lordships are
unable to discover any term in the
contract, contained in Schedules A
and B, binding the Government to
give the respondent company im-
mediate possession of the line, or
to transfer the property of the line,
free of all contracts or arrange-
ments whatsoever; and, if such an
obligation cannot be inferred from
the language of the agreements
sanctioned by the legislature, it is
impossible to derive, from the
language of this section, any in-
tention to defeat the respondent
company’s right of possession.
“It appears to their Lordships
that, even if the terms of these
proposals had contemplated the
immediate transfer of possession to
the appellant company, that would
not have been necessarily conclu-
sive against the respondents in
this appeal. There is a great
difference between giving authority
to make an agreement and autho-
rizing it to be made and forthwith
carried out so as to override and
destroy all private rights that may
stand in its way.
“The second, and only other
section of the Act, provides that,
until arrangements are completed
for giving possession of the line to
the appellant _coml)any_, for the
purpose of working it until the
completion of their line from An-
napolis to Yarmouth, the Govern-
ment shall have power to make
such other arrangements as may
be necessary, ‘by continuing the
working of the same by the Wind-
sor and Annapolis Railway Com-
pany, or otherwise.’ These pro-
visions certainly do not suggest
that it was in the contemplation of
Parliament that immediate posses-
sion of the Windsor Branch Rail-
way was to be given to the appel-
lant company for the purpose of
operating it ; on the contrary, they
are apparently intended to meet
the case of the Government de-
clining to give possession of the
line to the appellant company at
the time when the latter had under-
taken to receive it. Nor do these
provisions necessarily indicate that,
if there should be a subsisting
working agreement with the re-
spondent company, or any other
company, that agreement was to
be set aside, in order to admit of
the Government making such an
arrangement as is provided for in
this section. In case of there
being no such standing agreement
in the way, the powers conferred
upon the Government are very
wide; and, even if the agreement
of 1871 had been determined, it is
by no means clear that the agree-
ment of 22nd April 1875 would
B.N.A. AC", 108—DOM.
AND PROV. RIGHTS. 493
not give the respondent company
right to continue their possession
of the line.
“In the view which their Lord—-
ships take of the import and effect
of the Canadian Act, 3'7 Vict.
c. 16., it becomes unnecessary to
decide whether, if it had chosen to
do so, the Parliament of Canada
would have had the power to ex-
tinguish the rights of the respond-
ent company under the agreement
of 22nd September 1871. Whether
that power is given by the provi-
sions of the British North America
Act to the Dominion Parliament,
or to the Legislature of Nova Scotia,
is a question of difficulty and im-
portance; but seeing that it does
not arise for decision in the pre-
sent case, their Lordships express
no opinion whatever in regard to it.
“ Their Lordships will, therefore,
humbly advise Her Majesty that
the judgments of the courts below
ought to be aflirmed and the ap-
peal dismised The appellants
must pay the costs of the appea .”
THE WINDSOR AND ANNAPOLIS
RAILWAY CDMPANY v. THE QUEEN
AND THE WESTERN CoUNrIEs
RAILWAY, et 6. contra. In S. C.
Feb. 16, 1885, 10 S. C. R. 335
[Sir W. Ritchie, C.J., Fournier,
Henry, Taschereau, J J ., Strong,
and Gwynne, J J ., dissenting],
which reversed Gwynne, J ., in
Exch. Ct. May 18, 1883; in P. C.
June 25, 1886, 11 App. Cas. 607;
55 L. J. P. C. 41; 55 L. T. 271.
Lord Watson [there being also
present Lord Halsbury, L.C., Lord
Hobhouse, Sir Barnes Peacock, Sir
Montague Smith, and Sir Richard
Couch] said: “ The Government
of Canada, by an agreement dated
the 22nd September 1871, under-
took to give the appellant company
the exclusive use of the Windsor
Branch Railway, and also running
powers over the trunk line, from
Windsor Junction to Halifax, for
the term of 21 years, from the
lst January 1872. The appellant
company, in pursuance of that
agreement, entered upon and
worked the Windsor Branch Rail-
way until the 1st August 1877,
when Mr. Brydges, the Govern-
ment Superintendent of Railways,
took possession of the line, and put
an end to the occupation of the
company. On the 24th Septem-
ber 1877, the same official gave
possession of the line to the
Western Counties Railway Com-
pany, under an arrangement, the
terms of which are to be found in
Schedules A and B of the Act of
the Dominion Parliament, 37 Vict.
c. 16.
“The appellant company, on
the 10th October 187 7 , ﬁled a bill,
on the Equity side of the Supreme
Court of Nova Scotia, against the
Western Counties Railway Com-
pany, in which they sought to
obtain a declaration of their rights
under the agreement of September
1871, to recover possession of the
Windsor Branch, and to have an
account taken of the receipts of
the defendant company, from
freight and passenger trafﬁc. On
the 19th September 1878, the
appellant company presented a
petition of right to the Exchequer
Court of Canada, under the pro-
visions of the Dominion Act,
39 Vict. c. 27., in which they
humbly prayed that the agreement
of 1871 should be speciﬁcally per-
formed, and also ‘ that the sum of
£150,000 sterling, or such sum as
may be reasonable, may be paid to
your suppliants in compensation
and by way of damages for the
injuries and losses which have been
‘occasioned to them by the breach
and failure of Her Majesty’s
Government of Canada to perform
the said agreement of the 22nd
September 1871.’
“ In the Equity suit, Mr. Justice
Ritchie, on the 1st March 1880,
decided that the plaintiﬁs were
‘entitled to the judgment of the
Court in their favour, with costs.’
That decision was affirmed by the
Supreme Court of Nova Scotia, on
the 5th April 1881 ; and on appeal
TIIE WINnson
AND ANNAroLIs
RAILWAY Co. ‘v.
TIIE QUEEN
AND 'WEsrERN
CoUNTIEs
RAILWAY.
4394!
B.N.A. ACT, s. 108-DOM. AND PROV. RIGHTS.
THE WINDSOR
AND ANNAPoLIs
RAILWAY Co. v.
TIIE QUEEN
AND WESTERN
COUNTIES " _
RAILWAY.
to this Board, the judgments of
both courts below were affirmed,
with costs, on the 22nd February
1882 [see above]. Their Lordships
held that the agreement of 22nd
September 1871 was valid and
subsisting; and that the rights of
the Windsor and Annapolis Rail-
way Company under that agree-
ment were not aﬁected by the
Canadian Act, 37 Vict. c. 16.
“During the dependence of
these proceedings the Government
of Canada put an end to their
arrangement with the Western
Counties Railway Company, and,
on the 1st December 1879, they
allowe‘dﬁhe app—ellait compﬁyi to
resume possession of the Windsor
Branch, and to exercise running
powers over the trunk line, but
that without prejudice to the rights
or liabilities of Her Majesty, or
the appellant company, except in
so far as the question of damages
might be thereby aﬁected.
“Her Majesty’s Attorney-
General for the Dominion of
Canada appeared in the petition of
right, and lodged a statement in
defence on behalf of Her Majesty,
on the 18th October 1880, but no
further proceedings were taken in
the cause until the judgment of
this Board had been given in the
Equity suit. On the 18th May
1883, Mr. Justice Gwynne decided
that damages were not, in the cir-
cumstances of case, recoverable
from Her Majesty, and dismissed
the petition with costs, ‘leaving
the suppliants to pursue their
remedy, for such compensation
against the Western Counties Rail-
way Company, under their judg-
ment already recovered against that
company.” A motion for a rule
to show cause why the judgment
of Mr. Justice Gwynne should not
be set aside was refused by the
Court of Exchequer on the 26th
June 1883. Upon an appeal
against that decision to the Supreme
Court of Canada, Sir W. J.
Ritchie, C.J., and Taschereau, J .,
-held that a petition of right lay
against the Crown, but that the
damages recoverable must be
limited to the period of the Crown’s
possession of the WVindsor Branch
from lst August to 24th Septem-
ber 1877. These learned judges
were of opinion that the appellant
company, by their proceedings in
Equity against the Western Coun-
ties Railway Company, had elected
to take that company as their
debtors for all claims of damage
arising after the 24th September
1877 , and were consequently barred
from preferring these claims against
the Crown. Fournier and Henry,
J J ., whilst agreeing thgithe peti-
new of rightﬁlay, held that the
Crown was liable for damages
suffered by the appellant company
after its possession had ceased.
Gwynne, J ., adhered to his former
decision, and Strong, J ., concurred
with him. The Supreme Court,
accordingly, on the 16th February
1885, reversed the judgment of the
court below, and ordered and ad-
judged that the suppliants are en-
titled to recover from Her Majesty
the Queen the proﬁts of the Crown
from the Windsor Branch Railway
from the 1st August to the 24th
September 1877 , which they fixed
at the sum of $95897.
“ The principal appeal from that
judgment is taken by the appel-
lants, the.Windsor and Annapolis
Railway Company, who object to
it, in so far as it excludes their
claim of damages after the 24th
September 1877 . The respondent,
Her Majesty’s Attorney-General
for the Dominion of Canada, has
brought a cross appeal, in which
he seeks to have the judgment of
the Supreme Court set aside, and
to have the judgments of Mr.
Justice Gwynne and of the Court
of Exchequer restored.
“ The respondent has not, in the
courts below, or at their Lord-
ships’ bar, impugned the decision
of this Board in the Equity suit
between the appellant company
and the Western Counties Railway
Company.- He has conceded that
B.N.A. ACT, s. 108—PETITION OF RIGHTS.
495
the appellant company have still
the right to possess and use the
\Vindsor Branch line, under the
agreement of 1871; and, seeing
that the company was restored to
possession in the year 1879, the
courts below have not thought
it necessary to dispose of those
parts of the prayer of the petition
of right which relate to perform-
ance of the agreement of Septem-
ber 1871.
“ Their Lordships are of opinion
that it must now be regarded as
settled law that, whenever a
valid contract has been made be-
tween the Crown and a subject, a
petition of right will lie for damages
resulting from a breach of that
contract by the Crown. Section 8
of the Canadian Petition of Right
Act (39 Vict. c. 27 . Dom. Parlt.),
contemplates that damages may be
recoverable from the Crown by
means of such a petition; and the
reasons assigned by Lord Black-
burn for the decision of the Court
of Queen’s Bench in Thomas 1).
The Queen, L. R. 10 Q. B. 31,
appear to their Lordships neces-
sarily to lead to the conclusion
that damages arising from breach
of contract are so recoverable. A
suit for damages, in respect of the
violation of contract, is as much an
action upon the contract as a suit
for performance; it is the only
available means of enforcing the
contract in cases where, through
the act or omission of one of the
contracting parties, speciﬁc per-
formance has become impossible.
In Tobin v. The Queen, 16 C. B.
(N. S.) 355, Chief Justice Eyre,
whilst affirming the doctrine that
the sovereign cannot be sued in a
petition of right, for a wrong done
by the executive, took care to
explain that ‘claims founded on
contracts and grants made on be-
half of the Crown are within a
class legally distinct from wrongs.’
“It was argued for the respon-
dent that, in Thomas 2). The
Queen, the claim of the suppliant
was not for damages, but for a
pecuniary consideration alleged to
have been due in terms of the con-
tract; and consequently that it was
unnecessary for the Court to de-
cide anything as to the liability of
the Crown for unliquidated dama-
ges resulting from breach of con-
tract. But Lord Blackburn, in
that case, deals with the suppliant’s
petition as alleging certain breaches
of promises made to the suppliant
on behalf of the Queen; and his
reasoning appears to this Board to
be quite as applicable to a claim of
unliquidated damages for breach of
contract, as to a claim for the con-
tract price. Lord Blackburn rests
the judgment mainly upon the
‘ Banker’s case,’ 14 Howell’s State
Trials, 1, which was a suit for an-
nuities granted by letters patent
under the great seal; but his Lord-
ship at the same time points out
that, from the time of Lord Somers,
there had been repeated expressions
of opinion by eminent judges in
favour of the View that a petition
of right lay against the Crown 011 a
contract. It is unnecessary to cite
these opinions, which are all col-
lected in Thomas '0. The Queen.
Their Lordships may, however,
refer to the accurate exposition of
the law given by the late C. J.
Cockburn in Feather v. The
Queen, 6 B. & S. 293 :—-‘ I'Ve
think it right to state that we see
no reason for dissenting from the
conclusion arrived at by the
Common Pleas in Tobin v. The
Queen, 16 C. B. N. S. 310. ‘Ve
concur with that Court in thinking
that the only cases in which the
petition of right is open to the
subject are, where the land, or
goods, or money of a subject have
found their way into the possession
of the Crown, and the purpose of
the petition is to obtain restitution,
or if restitution cannot be given,
compensation in money, or when a
claim arises out of a contract, as
for goods supplied to the Crown or
to the public service.’ Their
Lordships desire to add that, upon
this branch of the case, they agree
THE WINDsoR
AND ANNAroLIs
RAILWAY Co. r.
TIIE QUEEN
AND WESTERN
COUNTIES
RAILWAY.
496 B.N.A. ACT, 8. 108—LIABILITY oF THE CROWN.
TIIE WINDSOR
AND ANNAPoLIs
RAILWAY Co. v.
TIIE QUEEN
AND WESTERN:
COUNTIES
RAILWAY.
with the reasoning of C. J. Ritchie,
and the able judgment of Mr.
Justice Fournier.
“ It was argued for the respondent
that no breach of the agreement of
1871 was committed by the Crown,
inasmuch as the taking possession
of the Windsor Branch Railway
on the 1st August 1877 was simply
the tortious act .of Mr. Brydges.
The argument fails because it has
no foundation in fact. The respon-
dent, in his statement of defence,
alleges that, on or about the 25th
July 1877 , the Government of
Canada, having completed arrange-
ments for transferring the line to
the Western— Counties Railwayi
Company, a minute was passed by
the Governor-General in Council
directing that the arrangements
then existing with the appellant
company should be terminated on
the 1st August 1877; that the
Minister of Public Works was
directed to resume possession on
that day; and that, ‘in pursuance
of the said minute of Council and
of the said Act of 1874,’ the
otﬁcers of Her Majesty dispossessed
the appellant company and gave
possession of the line to the Wes-
tern Counties Railway Company.
It is plain, therefore, that Mr.
Brydges acted with the full au-
thority of the Government, and
merely carried out their instruc-
tions, which were issued in the
belief that it was within their legal
right to put an end to their agree-
ment with the appellant company.
“Another argument submitted on
behalf of the respondent was to the
eifect that the Crown is only liable
in respect of breaches of contract
occasioned by the omissions of
Crown oﬂicials, and is not liable
in respect of breaches due to their
positive acts, even when these acts
are done under direct authority from
the Crown. Upon this point it is
sufﬁcient to say that, in the opinion
of their Lordships, there is neither
authority nor principle for recog-
nising any such distinction.
“ It was also argued for the re-
spondent that the Crown cannot
be held liable as for breach of con-
tract, inasmuch as all the acts of
the Government of Canada, in put-
ting an end to the possession of the
appellant company, were done (to
use the language of Mr. Justice
Strong), ‘ expressly with the in-
tention of acting in pursuance of
the statute of 1874, and for the
purpose of carrying out the pro-
visions of that statute, a duty which
Parliament had imposed on the
Executive Government.’ If the
effect of the Canadian Act of 1874
(37 Vict. c. 16.) had been to make
it the imperative duty of the GO-
vernmenttolemninate their agree;
ment with the appellants, and to
give possession of the Windsor
Branch to the Western Counties
Railway Company, the Crown
would have incurred no liability to
the appellants by performing that
statutory duty. But the decision
of this Board in the previous suit
was given in favour of the present
appellants, on the very ground that
the Act of 1874 did not aﬁect the
validity or subsistence of the agree-
ment of September 1871, and im-
posed no obligation on the Govern-
ment to interfere with the appel-
lant’s possession of the Windsor
Branch Railway, or to transfer it
to the Western Counties Railway
Company.
“ The only matters remaining for
consideration are the extent to
which the Crown is liable for
damages, and the amount of
damages which ought to be
awarded to the appellants. Their
Lordships are of opinion that, on
the 1st August 1871, when they
were ousted by the act of the
Crown, there arose to the appellants
a claim of damages, for loss of
possession, during‘ the whole re—
mainder of the term speciﬁed in
the agreement of 1871; and that
their subsequent restoration, in
December. 1879, had merely the
effect of reducing the amount of
that claim. They are unable to
assent to the view taken by Mr.
B.N.A. ACT, 3. 108.—-TORT FEASORS.
497
Justice Henry, who was of opinion
that damages must be restricted to
the period between 1st August
1877 and 19th September 1878,
the date when the petition of right
was presented.
“ It has been argued, however, for
the respondent, and the Supreme
Court of Canada has, by a majority,
given effect to the argument, that
the appellants can only recover
from the Crown such damages as
were incurred by them whilst the
Crown was in actual possession of
the Windsor Branch Railway. It
is said that the appellants are
estopped from preferring any claim
against the Crown, after the 24th
September 1877, by reason of their
having elected to accept the Wes-
tern Counties Railway Company
as their sole debtors for damages
accruing subsequently to that date.
In the opinion of their Lordships,
the plea thus advanced by the
respondent is without foundation
either in fact or law, and must
therefore be rejected.
“ The respondent’s statement in
defence contains no plea of estoppel,
and no allegation of fact, upon
which such a plea could be founded.
The argument has been based upon
the print of proceedings in the
Equity suit, which was tendered
by the respondent, at the trial of
the present cause before Mr. Justice
Gwynne, and received de bene 6886.
Even if it were competent in these
circumstances to entertain the plea
of estoppel, their Lordships would
be of opinion that no case of elec-
tion has been made out. Both
suits were depending long before
an operative judgment was pro-
nounced in either of them. In the
suit directed against the Western
Counties Railway Company, which
prayed inter alz'a for an account of
proﬁts, although the appellants
were found to be entitled to the
judgment of the court in their
favour, there has been no order
directing an account to be taken,
none has been taken, and no decree
has been made, ordaining the de-
S 2340.
fendant company to make a money
payment to the appellants. Had
there been such a decree, any pay-
THE WINDSOR
AND ANNAPOLIS
RAILWAY Co. v.
THE QUEEN
ment made under it by the Western AND WESTERN
Counties Railway Company would
CoUNTIEs
have operated in satisfaction pro RAILWAY.
tanto of the liability of the Crown,
it could have had no other effect.
“Their Lordships have accord-
ingly come to the conclusion that
the appellants are entitled to judg-
ment for the whole damage sus-
tained by them from the 1st August
1877 to the 1st December 1879.
The evidence as to the amount of
damage lies within a very narrow
compass; it is not contradictory,
and involves no question as to the
credibility of witnesses. In these
circumstances, their Lordships have
thought it better, in order to ob-
viate the necessity of further liti-
gation, to determine the amount of
damages themselves, and they have
accordingly assessed the same at
$115,000.
“ Their Lordships will humbly
advise Her Majesty that the cross
appeal should be dismissed, and the
judgment appealed from in the
original appeal, in so far as it
orders and adj udges ‘that the
appellants, the suppliants, are en-
titled to recover from the respon-
dent, Her Majesty the Queen, the
proﬁts of the Crown from the
Windsor Branch Railway from the
1st day of August 1877 to the 21th
day of September 1877, both in-
clusive, which have been ﬁxed and
determined at the sum of $95897,
being portion of their relief sought
by the petition of right,’ ought to
be reversed; and that quoad ultra
the said judgment ought to be
affirmed, subject to the declaration
that the appellants, the suppliants,
are entitled to receive from Her
Majesty the Queen the sum of one
hundred and ﬁfteen thousand dol-
lars ($115,000), as the damages
suﬁered by them by reason of
their having been deprived of the
possession and use of the Windsor
Branch Railway from the lst
August 1877 to the lst December
II
498 B.N.A. AcT,'S. 108.--RIGHT TO FORESHORE.
NORTH SHORE
1879. Their Lordships also ﬁnd
{,ljggwﬂ ”' that the appellant company are
' entitled to receive the costs in-
curred by them, in the principal
and cross appeals.
HOLMAN a G. was in possession of a part of
GREEN.
the foreshore of the public harbour
of Summerside, and had erected
thereon a wharf between high and
low water at which vessels might
unload. H. brought ejectment.
His title consisted of letters patent
under the great seal of Prince
Edward Island, 30 Aug. 187 7 , by
which the Crown, in right of the
island, and assuming to act under
**‘v”via*provincialWActf25vVict. c. 19.,
purported to grant H. a fee simple
to the land. Held that under this
section of the B. N. A. Act the
soil and bed of the foreshore in the
harbour of Summerside belongs to
the Crown as representing the
Dominion of Canada, and therefore
the grant under the great seal of
Prince Edward Island to H.was void
and inoperative. Holman v. Green,
March 28, 1881, 6 S. C. R. 707.
Where a railway company has
obtained a right to run the track
along the foreshore, a corporation
of a town by which it passes has
no power to raise embankments on
a level with the line so as to form
a road over the line on the level.
[See case, p. 481, S. N.] The argu-
ment there was that the soil of the
foreshore was in the Crown, and the
Crown could deprive the general
subject of the indirect advantage
of communicating with the fore-
shore. But there is a great dis-
tinction between the public right
of navigation from the rights be-
longing to the owner of riparian
land. Thus, where a railway ran
along the foreshore, and injury to
the access to or exit from land of a
riparian owner is a necessary,
patent, and obvious consequence of
the execution of the railway works,
then the doctrine of Lyon '0. Fish-
mongers’ Co., July 27, 1876,
1 App. Cas. 683; 46 L. J. (Ch.)
68; 35 L. T. 569, will in reason
LYoN 'v. FIsI-I-
noNeERs’ Co.
and on principle apply, and in-
demnity is due. In the North
Shore Railway Co. v. Pion, in S. C.
20 June 1887, 14 S. C. R. 674,
which reversed Q. B. Quebec
4Feb. 1886.
In P. C. Aug. 1, 1889, 14 App.
Cas. 612; 59 L. J. P. C. 25;
61 L. T. 525, Earl Selborne states
the facts: “The respondents, the
Pions, carried on their business
(of tanners) upon riparian land,
belonging to them, which had a
frontage of considerable length to
the ‘ St. Charles,’ a tidal navigable
river within the limits of the har-
bour of Quebec. The appellants,
tithe—North Shore~~Railway~WCem~
pany, in 1883 made their railway
upon the foreshore of that river by
means of an embankment extend-
ing along the entire length of the
respondents’ frontage, not, how-
ever, taking any part of the re-
spondents’ land, and in this em-
bankment they left one opening,
15 feet wide and 12 or 13 feet
high, opposite to the tannery,
through which the river was ac-
cessible at low tides and at some
(but not all) high tides. With that
exception they cut 0E all access to
the water from the respondents’
land, which, before those works
were executed, was always accessi-
ble for boats at high water along
its whole frontage. The appel~
lants also made another opening
just outside the boundary of the
respondents’ land, and opposite to
the end of a public street through
which the respondents might, except
at certain high tides, have found ac-
cess by means of that street to the
water. N o compensation or indem-
nity waspaid or offered by the ap-
pellants to the respondents, who
brought their action complaining
that they had been unlawfully shut
out from their access to the river,
and asking for damages, and that
the company might be compelled
to demolish and remove the ob-
struction.”
His Lordship then considered
all the authorities, and held that
B.N.A. ACT, s. 108.--QUEBEC 80 ENG. LAW
499
the case of Lyon v. Fishmongers’
Co. [see reference above] was
as applicable at Quebec as in Eng-
land. That none of the authori-
ties relied 011 by the appellants
“tend to establish the non-exist-
ence of riparian rights upon navi-
gable or tidal rivers in Lower
Canada, or to show that the ob-
struction of such rights without
parliamentary authority would not
be an actionable wrong, or that if,
in a case like the present, the
riparian owner would be entitled
to indemnity under a statute au-
thorizing the works on condition of
indemnity, the substituted access by
openings such as those which the
appellants in this case have left,
would be an answer to a claim for
indemnity.”
109. All lands, mines, minerals and royalties belong-
ing to the several provinces of Canada, Nova Scotia,
and New Brunswick at the Union, and all sums then
due or payable for such lands, mines, minerals or
royalties, shall belong to the several provinces of
Ontario, Qnebec, Nova Scotia, and New Brunswick in
which the same are situate or arise, subject to any
trusts existing in respect thereof and to any interest
other than that of the province in the same.1
1 Construing the word “royalties”
in this section with secs. 102, 117 ,
and sub-sec. 13 (property and
civil rights), sec. 92, it has been
held that when a person died
without heirs and intestate, leaving
real as well as personal property,
that escheat fell into the revenue
of the province and not into the
revenue of the Dominion. See
Att.-Gen. of Quebec '0. Att.-Gen.
of the Dominion, in Q. B. Quebec
8 Sept. 1876, 2 Q. L. R. 236, re-
versing H. E. Taschereau, J .,
l L. R. 177 [see below],
a question concerning the pro-
perty of a person dying without
heirs and intestate in the province
of Quebec. In that case the judges
of the Q. B. Quebec rested their
judgment, ﬁrstly, on the ground that
as the provinces under sub-sec. 14,
sec. 92, could deal with the descent
of property and could pass a law
giving illegitimate children a right
to inherit, therefore the provinces
were invested with power to appro-
priate this escheat to themselves;
and secondly, on the word ‘royal—
ties,’ in sec. 109. Taschereau, J .,
who presided in the court of ﬁrst
instance in that case, and formed
one of the majority in Att.-Gen.
of Ontario v. Mercer in the S. C.,
based his decisions against the right
of the provinces on the 102nd sec-
tion. Att.-Gen. of Ontario 1).
Mercer, 5 S. C. R. 538, reversing
6 O. A. R. 576 and Proudfoot,
V.C., 26 Grant 126 ; in P. C., July
18, 1883, 8 App. Cas. 767; 52 L. J.
P. C. 84; 49 L. T. 312 [see
below], was a question as to the right
to lands situate in the province
of Ontario. The lands in question
belonged to a person who had died
without heirs and intestate. The
Judicial Committee decided, re-
versing the S. C., that such es-
cheats fell to the province and not
to the Dominion, under secs. 109
and 126. In Mercer’s case, Earl of
Selborne, in giving judgment,
afﬁrmed the result of the decision
in the case of Fraser’s estate,
Att.-Gen. of Quebec 1). Att.-Gen.
of the Dominion. 2 Q. L. R. 236;
1 Q. L. R. 177.
NORTH SHORE
RAILWAY v.
PIoN.
Property in
lands, mines,
&c.
112
500 B.N.A. ACT, S. 109.--PROVINCIAL PROPERTY.
ST. CATHE-
RINE’s MILLING
‘CO. v. THE.
QUEEN.
ATT.-GEN. OF
BRITISH Co- '
LUMBIA Q).
~ ATT.-GEN. OF
CANADA.
ATT.-GEN. OF
QUEBEC v.
ATT.-GEN. OF
DOMINION.
The right to Indian lands sur-
rendered to the Crown, the bene-
ﬁcial interest therein was also de-
clared to be in the provinces and
not in the Dominion. See
St. Catherine’s Milling Co. v. The
Queen, 20 June 1887, 13 S. C. R.
577; 13 O. A. R. 148; 10 O. R.
196; in P. C. Dec. 12, 1888,
14 App. Cas. 46 ; 58 L. J. P. C.
54 ; 60 L. T. 197 [see ante, p. 94].
As To MINEs AND MINERALS.—
The provincial legislatures have a
right to these. In Att.-Gen. of
British Columbia 7). Att.-Gen. of
Canada, ‘the Judicial Committee
aﬁirmed decision of the Exch.-C.t-,
14 S. C. R. 345; in P. C. 3 April
1889, 14 App. Cas. 295; 58 L. J.
P. C. '88; 60 L. T. 712 [see
below]. The Judicial Committee
held, reversing the decision of the
Supreme Court of Canada, that
the precious metals Within the
Canadian Paciﬁc Railway belt
within British Columbia were vested
in the Crown, subject to the control
and disposal of the Government of
British Columbia. The main point
there was—by British Columbia
Acts, 43 Vict. No. 11. and 47 Vict.
e. 14., settling an arrangement by
arbitration in terms of the 11th arti-
cle of Union between Columbia and
the Dominion, British Columbia
agreed to convey to the Dominion
a certain extent of land in aid of
the construction of the railway.
The precious metals under this
railway belt were claimed by the
Dominion as having passed to it.
On the other hand, the province
contended no transfer of the pre-
rogative right was effected, nor
was there any grant of these mines
and minerals to the Dominion Go-
vernment. In this case there were
present Lord Halsbury, L.C., and
Lords Watson, Fitzgerald, Hob-
house, and Macnaghten.
ATT.-GEN. OF QUEBEC v. ATT.-
GEN. oF THE DOMINION, 8 Sept.
1876, reported under the name of
“ Church C. Blake,” 2 L. R. 236,
[Dorion, C.J., Monk, Ramsay,
Sanborn, and Tessier, J J.], revers-
ing H. E. Taschereau, J ., 29 Jan.
1876, 1 Q. L. R. 177, and the
result of which case was approved
of by the Earl of Selborne, L.C.,
in Att.-Gen. of Ontario 11. Mercer.
The facts are thus given by Dorion,
C.J.: “ Edouard Fraser died at
Fraserville, in the province of
Quebec, on 2 Feb. 1874. He was
not married, he left no heirs and
no will. Under art. 637 of the
Civil Code his‘estate devolved to
the Crown. However, shortly
after his death, one Damase Caron
was appointed curator to his vacant
. estate, Enderlarti 347 of the Code,
and took possession Of‘his property
[which comprised both personal as
well as real estate]. The Att.-
Gen. for the province of Quebec
then instituted this action to re-
cover from this curator the pro-
perty composing the estate. After
the return of the action, the Att.-
Gen. for the Dominion, acting also
on behalf of Her Majesty, peti-
tioned to be permitted to intervene
in the cause to claim the estate.
This petition being contested by
the plaintiff, the parties were heard,
and by the judgment of the court
below, the Att.-Gen. for the Do-
minion was delared to be entitled
to claim the estate, and was allowed
to intervene. The present appeal
is from this judgment, and raises
the important question whether
escheats belong to the Dominion
or to the province wherein they
arise; for, although both parties
claim the Fraser estate on behalf
of Her Majesty, they in reality do
so on behalf and in the interest of
their respective governments. III
both instances they use the name
of Her Majesty, but only as repre-
senting the public domain, that of
the Dominion in the one case and
that of the province of Quebec in
the other. The contestation being
thus submitted by the parties, it is
unnecessary to enquire whether
they are both right in assuming to
proceed as they have done on
B.N.A. ACT, s. ioa—PoWER OVER INHABITAN’I‘S. 501
perty and civil rights.
behalf of Her Majesty, and the
only question which by the plead-
ings is submitted to us, is whether
the Att.-Gen. for the Dominion
has shown any right to this estate,
for if he has no right to it he
has no right to intervene in the
causes. The title of the Att.-Gen.
for the province of Quebec is not
now in question.”
His Lordship then continued:
“ It is unnecessary for the purpose
of this cause to enquire into the
origin of this right to escheats.
It is suﬁicient that at the time the
B. N. A. Act, 1867, was passed
they belonged to the Crown, as
declared by our Code, or more
properly to the Government of the
late province of Canada, in whose
favour Her Majesty had released
that portion of her revenue arising
in the province, in consideration of
the civil list granted to Her
Majesty by the Act of 9 Vict.
c. 114. The right of the late pro-
vince of Canada to these escheats
being undoubted, it only remains
to ascertain whether it was re-
served by the Confederation Act to
the provinces of Quebec and On-
tario, or attributed to the Dominion
Government.
“In the distribution of powers
made by the Confederation Act
between the Dominion and the
separate provinces, the Dominion
Parliament has the control of all
matters of a general character
affecting the whole Dominion.
The provincial legislatures exercise
their authority over matters affect-
ing the inhabitants of their respec-
tive provinces only, and among
the subjects to which their au-
thority extends is the power of
legislation as to the rights of pro—
perty and civil rights in general
[sub-sec.13,sec. 92, see ante, p. 257 ].
The right to regulate the trans-
mission of property by inheritance
falls within the powers of the
legislatures of the several pro-
vinces, as affecting rights of pro-
For in-
stance, the provincial legislatures
may restrict or extend the degrees ATT.-GEN. or
of relationship beyond which
parties will cease to inherit; they
may, as is the case in France,
decree that, in default of legitimate
heirs, the estate of the deceased
shall descend to his illegitimate
offspring, or they may order that it
shall revert to some educational
or charitable institution, and by
their legislation they may materially
aﬁect or destroy altogether the
right of escheats.
“Under sec. 102 of the Con-
federation Act, all the rights and
revenues which the legislatures of
the several provinces had a right
to appropriate (except such as are
by the Act reserved for the re-
spective provinces, or which are
received under the special powers
conferred upon them by the Act)
form part of the consolidated reve-
nue of Canada; and by sec. 126 all
the rights and revenues reserved
to the governments or legislatures
of the several provinces, and all
the rights and revenues received
by them under the special powers
conferred upon them, form part of
the consolidated revenue fund of
each province. The property de~
rived from the exercise of the
right of escheat constituted a
revenue which, before confedera-
tion, the several provinces had a
right to appropriate. It would,
therefore, belong to the Dominion
Government, unless specially re-
served to the provinces, or unless
it came within the category of
those rights which are received in
virtue of the special powers con-
ferred by the Act upon the several
provinces. The only other sec-
tions of the Act having reference
to the distribution of the assets of
the several provinces are secs. 107,
108, 109, 113, and 117, together
with schedules 3 and 4 annexed to
the Act. In none of these do I
ﬁnd that the right to escheats is
specially reserved to the pro-
vinces, but, from what I have
already said, escheats seem to come
within that class of revenues which
QUEBEC v.
A'r'r.-GEN. OF
DOMINION.
502
B.N.A. ACT, s. 109—PROV. ESCHEATS.
ATT.-GEN. or
QUEBEc v.
ATT.-GEN. or
DonInIoN.
are derived from the exercise of
the powers specially conferred on
the provincial legislatures.
“If these legislatures have the
power to enlarge or curtail to the
extent of this right by extending
or restricting the range of parties
to whom the estate of deceased
persons may be transmitted, or if
they can abolish it altogether, then
the existence of this right to
escheats is subject to the authority
of the provincial legislatures, and
the revenue derived from it is col-
lected in virtue of the powers
specially conferred on them by the
Act, since it depends on their
French.
Tessier, J .: Il s’agit d’une
question de déshérence. A qui
les biens d’un individu décédé sans
héritiers, dans la province de
Québec, on il avait son domicile,
et on il est décédé, et on se
trouvent ces biens, retournent-ils?
Est—ce au Gouvernement de la
province de Québec, ou au Gou-
vernement de la puissance du
Canada E’
Il est bon de remonter aux
sources des lois de déshérence pour
en faire l’application. Ces lois
forment partie du droit civil, et ce
n’est qu’un mode de transmission
institute pour ceux qui ne laissent
pas d’héritiers, ou qui en laissent
qui tous répudient la succession,
c’est la meme chose; en ce cas,
“ cette succession, est acquise au
souverain,” suivant l’expression de
l’article 637 de notre Code Civil, ou
“ces biens appartiennent au d0-
maine public,” suivant l’expres-
sion contenue dans l’article 401.
On peut s’apercevoir que dans
notre code et dans notre langage
.judiciaire on fait quelquefois un
étrange abus des mots 1e Souverain,
le Domaine Public, la Couronne,
Sa Majesté la Reine, 1e Domaine
de l’Etat, comme si ces mots
étaient synonymes. Pourtant, ils ne
le sont pas; et bien souvent on se
. sert du nom de sa Majesté pour lui
.donner. des attributions différentes.
action whether this source of reve—
nue shall be maintained, and to
what extent, or whether it shall be
abolished altogether. There is
here no question of prerogative or
of sovereignty, but a mere question
of interpretation of the B. N. A.
Act. The Court is unanimous in
saying that the Dominion Govern-
ment has no claim to the estate in
dispute, and that the petition of
the Hon. Ed. Blake, as Attorney-
General for the Dominion, should
have been dismissed. The judg-
ment of the court below is there-
fore reversed.”
Translation.
Tessier, J. : This is a question of
escheat. To whom does the estates
of a deceased individual, Without
heirs, in the province of Quebec,
where he had his domicile, where
he died, and where his estates are
found, go F Is it to the Government
of the province of Quebec, or to
the Government of the Dominion
of Canada?
It is well to go back to the
sources of laws of escheat in con-
sidering the question. These laws
formed part of the civil right, and
there is only one mode of transmis-
sion instituted for those who leave
no heirs, or who leave heirs all of
whom repudiate the succession. It
is the same thing. In this case,
“ this succession reverts to the
sovereign,” following the meaning
of the article 637 of our Civil
Code, or these estates belong to
the Crown, following the meaning
contained in the article 401.
One can understand that in our
code and in our judicial language
one makes sometimes a strange
abuse of the words the Sovereign,
the State Domain, the Crown, Her
Majesty the Queen, the rights of
the State, as if these words were
synonymous. Nevertheless, they
are not; and very often they make
use of the name of Her Majesty
to give different prerogatives.
B.N.A. ACT, 8. ‘ma—rama RIGHTS OF ESCHEAT. 503
Le droit de déshérence n’a été, et
n’est encore, qu’un droit de réver—
sion pour faire retourner les biens à
l’autorité qui les avait fait sortir
du domaine public. Cette autorité
est bien représentée, primitivement,
par le souverain; mais le souverain,
avec la sanction du Parlement
Impérial, a-t-il conféré ce droit a
d’autres ? Il est admis que les
droits de déshérence appartenaient
au Canada avant l’acte de la con-
fédération; sa Majesté la Reine et
le Parlement Impérial avaient donc
déjà fait abandon de ces- droits à
la colonie, _et il— s’agit de savoir
simplement, auquel des‘ deux gou-
vernements—le gouvernement f édé-
ral ou le gouvernement provincial——
appartient le revenu provenant de
ce droit de déshérence. Cette
question doit être décidée par
l’interprétation de l’Acte Impérial
de la Confédération du Canada,
30 et 31 Vict. chapitre 3. La section
102 dit :—-“ Tous les droits et
revenus que les législatures respec-
tives du Canada, de la Nouvelle
Ecosse, et du Nouveau Brunswick,
avant et à l’epoque de l’Union,
avaient le pouvoir d’approprier,
sauf ceua're'serve's par le présent
acte aux législatures respectives
des provinces, ou qui seront perçus
par elles conformément aux pou-
voirs spéciaux qui leur sont con-
férés par le présent acte, formeront
un fonds consolidé de revenu pour
être approprié au service public en
Canada.”
Voila donc une exception dans
la clause précédente, et 1e revenu
provenant de la déshérence, n’est-il
pas parmi ceux compris dans cette
exception, savoir, parmi ceux ré-
servés auæ législatures des pro‘-
vinces et perçus par elles conforme’-
ment am: pouvoirs spéciaux qui
leur sont conférés par cet acte fl
Il me semble que cette exception
se trouve parfaitement établie par
les sections 92, 109, et 117. -La
section 92 porte en tête “pouvoirs
exclusifs des Législatures provin-
ciales,” et parmi ces pouvoirs ex-
The right- of escheat has only
been, and is still, only the right of
reversion, to return the estates to
the authority which had given them
from the Domain of the State. This
authority is well represented, ori—
ginally,by the sovereign; but has the
sovereign, with the sanction of the
Imperial Parliament, conferred this
right on others? It is admitted
that these rights of escheat belonged
to Canada before the Act of Con—
federation; Her Majesty the Queen
and the Imperial Parliament had
then already given up .these rights
to the colony, and the‘simple ques-
tion is, to which of the two govern-
ments—the Federal Government
or the provincial Government—-
belong the revenue accruing from
this right of escheat? T his ques-
tion ought to be decided by the
interpretation of the Imperial Act
for the Confederation of Canada,
30 & 31 Vict.c. 3. Sec. 102 says :—
“ All duties and revenues over
which the respective Legislatures of
Canada, Nova Scotia, and New
Brunswick, before and at the
Union, had and .have power of
appropriation, except such portions
thereof as are by this Act reserved
to the respective Legislatures 0f
the Provinces, or are raised by
them in accordance with the special
powers conferred on them by this
Act, shall form one Consolidated
Revenue fund to be appropriated
for the public service of Canada.”
There is then an exception in
the preceding clause, and the
revenue accruing from escheat,
is it not amongst those contained
in this exception, namely, amongst
those reserved to the Legislatures
of the Provinces, and raised by
them in conformity with the
special powers conferred on them
by this Act?
It appears to me that this ex-
ception is perfectly established by
the sections 92, 109, and 117.
Section 92 has for its title “ex-
clusive powers of the Provincial
Legislatures,” and amongst these
ATT.-GEN.
QUEBEC v.
ATT.-GEN.
DOMINION.
or"
OF
504
B.N.A. ACT, s. '109.-'--COUTUME oF PARIS.
AER-GEN. OF
QUEBEC v.
ATT.-GEN. or
DOMINION.
clusifs il est statue que “dans
chaque Province la Legislature
pourra exclusivement faire des
lois relatives [sous-section 13] 5'. la
propriété et aux droits civils dans
la province, et [sous-section 14] 02
l’administration de to justice dans
la Province, 3/ compris la cre'ation,
le maintien, et l’organisation de
tribunauw de justice pour la
province, ayant jurisdiction civile
et c-riminelle.” La loi de des-
hérence n’est qu’une regle du droit
civil; la legislature de Québec a le
droit exclusif de statuer sur le
degré de successibilité et sur le
mode de successibilité; ainsi rien
'ne' l’empeche‘raitvd’vétendre par une
loi ce degré de successibilité aux
enfants on parents illegitimes ou
memes aux institutions qui se
chargent quelquefois de l’education
des enfants illegitimes.
Cette loi de déshérence nous a
été transmise par l’article 167 de la
Coutume de Paris, qui se lit comme
suit: “ Quand le propriétaire pos-
sesseur d’aucun héritage va de vie
a trépas, sans hoirs apparens, 1e
Haut-Justicier en la Justice duquel
les heritages sont assis, peut et lui
est loisible iceux heritages vacans
et non occupés, saisir et mettre en
sa main.”
Si l’on considere cc droit de
déshérence comme an incident des
droits de la haute justice, l’article 92
a donné exclusivement l’adminis-
tration de la justice aux provinces,
et le revenu du droit de déshérence
lui appartiendrait.
Si l’on considere le droit de des--
hérence comme un accessoire de
revenu territorial, les sections 109
et 117 particularisent et generali—
sent le pouvoir des legislatures
provinciales sur les terres pub-
liques, et tous les accessories et
ncidents du revenu territorial.
En eifet, la section 109 dit:
“ Toutes les terres, mines, miné-
raux et réserves royales appartenant
aux diiférentes provinces lors de
'l’union, et toutes les sommes d’ar-
exclusive powers it is enacted that
“ In each province the legislature
may exclusively make laws in rela-
tion [under sub-section 13] to “ pro—
perty and civil rights in the Pro-
vince,” and [under sub-section 14]
to “the administration of justice in
the Province, including the constitu-
tion, maintenance, and organisation
of the courts of justice for the
Province, both of civil and criminal
jurisdiction.” The law of escheat is
only a rule of civil right. The
Legislature of Quebec has the excl u-
sive right to legislate as to the de-
gree of succession and the mode of
succession; thus nothing can pre-
vent it from extending by a law this
degree of succession to illegitimate
children or relations, oreven to the
institutions sometimes charged with
the education of illegitimate chil-
dren.
This law of escheat has been
transmitted to us by article 167 of
the Coutume de Paris, which reads
as follows : “ \Vhen the proprietor
of an estate passes from life to
death without apparent heirs, the
High J usticiary, in whose juris-
diction the estates are situated, has
power and it is lawful for him to
seize and take into his own hands
those vacant and unoccupied es-
tates.” [See Coutume de Paris, by
Lauriere, vol. 2, p. 135.]
If this right of escheat is
considered as an incident of the
rights of high justice, the article 92
has given the administration of
justice exclusively to the provinces,
and the income derived from the
right of escheat would belong to it.
If this right of escheat is con-
sidered as an accessory of the ter-
ritorial revenue, the sections 109
and 117 particularise and generalise
the power of the Provincial Legis-
latures over the public lands, and all
the accessories and incidents of the
territorial revenue.
In effect, the 109th section says :
“ All lands, mines, minerals and
royalties belonging to different
Provinces at the time of the Union,
and all sums of money then due or
RNA. AOT, s. 109.-PÔSITION or LT.-GOV.
505
gent alors dues ou payables ‘pour
ces terres, mines, mineraux et
réserves royales, appartiendront
aux différentes provinces,” etc.
Et la section 117, généralisant ce
pouvoir, ajoute: “ Les diverses
provinces conserveront respective-
ment toutes leurs propriétés pub-
liques dont il n’est pas autrement
disposé dans le présent acte, suj ettes
au droit du Canada de prendre les
terres ou les propriétés publiques
dont il aura besoin pour les fortiﬁ-
cations ou la défense du pays.”
Cette distribution de pouvoirs a
son application pour plusieurs
autres sujets. Ainsi, les effets con-
ﬁsqués en vertu des lois de la douane
appartiennent a la Couronne, ou
souverain, c’est-à-dire au gouverne-
ment fédéral du Canada, qui a le
contrôle du principal; mais les effets
volés non réclamés, et vendus par
ordre de l’autorité judiciaire, appar-
tiennent aussi a la Couronne, ou
souverain, c’est-a-dire au gouverne-
ment local, et le produit n’est pas
remis à la caisse de ce dernier.
Les terrains repris sur la mer par
accession, ou les îsles se formant
dans les ﬂeuves dans les limites des
provinces, appartiennent aussi à
chaque province.
C’est donc en vain que l’on
établit un raisonnement sur ce que
le Lieutenant-Gouverneur ne re-
présente pas la Reine, mais que
c’est le Gouverneur—Général; oui,
pour les attributs spéciaux qui ap-
partiennent a la royauté, et que sa
Majesté peut déléguer et conférer
par, et en vertu de, Sa Prérogative
Royale et de ses instructions, mais
non pas pour les choses sur les-
quelles sa Majesté la Reine n’a
plus aucun pouvoir direct, comme
sont les terres du domaine public,
les droits de propriété, et droits
civils de chaque Province. On
peut se servir du nom de sa Ma-
jesté pour rendre la justice, pour
suivre les droits de propriété du
Gouvernement Provincial, parce que
c’est une portion de l’autorité
payable for such lands, mines,
minerals and royal reservations,
shall belong to the several Pro-
vinces,” etc.
And the 1 1 7th section, generalis-
ing this power, adds : “ The several
Provinces shall retain all their re—
spective public properties which
are not otherwise disposed of in
this Act, subject to the right of
Canada to assume any lands or
public properties required for forti-
ﬁcations or for the defence of the
country.”
This distribution of powers has
its application for several other
subjects. Thus, eﬁects conﬁscated
by virtue of the customs laws
belong to the Crown or sovereign,
that is to say, to the Federal Gro-
vernment of Canada, Which has
the control of the principal ; but
goods stolen and not reclaimed,
and sold by order of the judicial
authority, belong also to the Crown
or sovereign, that is to say, to the
local government, and the proceeds
are not given over to the treasury of
the latter. [Sac It oughtto be the
former, meaning the Dominion].
Reclaimed lands recovered from the
sea by accession, or islands formed
in the rivers within the boundaries
of the Provinces, belong also to
each Province.
It is vain, therefore, to base an
argument upon the hypothesis that
the Lieutenant-Governor does not
represent the Queen, but that the
Governor-General does. Agreed he
does, for the special attributes which
belong to royalty, and which Her
Majesty can delegate and confer
by, and in virtue of, Her Royal
Prerogative and of her instructions,
but not for the things over which
Her Majesty the Queen has no
longer any direct power, as, for
example, the lands of the public
domain, the rights of property,
and the civil rights of each Pro-
vince. One can make use of Her
Majesty’s name to render justice,
to follow the rights of property of
the Provincial Government, because
it is a portion of the sovereign
Arr-GEN. 0F
QUEBEC v.
ATT.-GEN. OF
DOMINION.
506 B.N.A. ACT, s. 109.-USE or QUEEN’S NAME.
AT'I‘.-GEN. or
QUEBEC v.
ATT.-GEN'. OF
DOMINION.
souveraine conférée aux Gouverne-
ments Provinciaux, et qu’ils ont
droit d’exercer sous le nom de sa
Majesté. Sil’on voyait le Gouverne-
ment Provincial ou les autorités
provinciales, ou les tribunaux, éla-
guer le nom de sa Majesté, dans
les poursuites même civiles, au nom
du Gouvernement Local, quelques-
uns se récrieraient peut-être contre
ce style, qui serait peut-être plus
correct en fait, mais pourrait être
considéré comme impliquant une
indépendance que nos Gouverne-
ments Provinciaux n’ont pas plus
que notre Gouvernement Fédéral.
On dit que le Lieutenant-
Gouverneur -ne répresénte pas _sa
Majesté comme le Gouverneur-
Général; c’est vrai dans un sens
général, mais non pas le sens par-
ticulier des attributions qui lui
sont données par l’acte impérial;
dans ces actes particuliers il est
aussi bien le réprésentant du Sou-
verain que l’est le Gouverneur-
Général dans les siennes. A ce
compte-là, les conseillers législatifs
seraient des personnages plus im-
portants et plus pres de la royauté
que ne le seraient les Lieutenant-
Gouverneurs, parce que la section
72 dit, “seront nommés par le
Lieutenant-Gouverneur au nom de
Sa Majesté,” et ceux qui seraient
ainsi nommés se trouveraient au-
dessus du pouvoir qui en réalité
les choisit. Ce serait une singu-
lière anomalie.
Dans le préambule de l’acte de la
confédération il est déclaré que les
provinces ont désiré former une
union fédérale. Ce nom suppose
une fédération de pouvoirs, une dis-
tribution des pouvoirs entre di-
verses provinces entr’elles, et une
conservation de certains droits à
chaque province confédérée; c’est
la contre-partie d’une union légis-
lative, dans laquelle tous le pouvoirs
sont réunis dans une seule législa-
ture ou parlement. C’est en vertu
de ce traité fédératif que chaque
province a conservé des droits
propres, et parmi ces droits se
trouve le droit exclusif du domaine
authority conferred on the Pro-
vincial Governments, which they
have the right to use under the
name of Her Majesty. If one saw
the Provincial Government or the
provincialauthorities, or the tribu-
nals, subordinating Her Majesty’s
name, even in civil proceedings, to
the name of the Local Government,
some would cry out perhaps against
this style, which would be perhaps
more correct in fact, but might be
considered as implying an indepen-
dence which our Provincial Govern-
ments do not possess any more than
our Federal Government.
It is said that the Lieutenant-
Governor does not represent Her
Majesty in the same manner as the
Governor-General; this is true in
a general sense, but not in the par-
ticular sense of the powers which
are given by the Imperial Act;
in these particular Acts he is as
,much the representative of the
Sovereign as is the Governor-
General. According to this reas-
oning, the legislative councillors
would be more important person-
ages, and nearer to royalty, than
the Lieutenant-Governors, because
the 7 2nd section says, “ They shall
be appointed by the Lieutenant-
Governor in the Queen’s name,”
and those who would be thus ap-
pointed Would ﬁnd themselves
above the power which really chose
them. This would be a singular
anomaly.
In the preamble of the Act of
Confederation, it is declared that
the Provinces desire to form
a Federal Union. This term sup-
poses a fédération of powers, a
distribution of powers between
diﬁerent provinces among them-
selves, and a preservation of certain
rights to each confederated pro-
vince ; it is a counterpart of a
legislative union in which all the
powers are re-united into a single
legislature or parliament. It is in
virtue of this federal treaty that
each Province has preserved .its
own rights, and among these rights
are to be found the exclusive right
B.N.A. ACT, s. 109.--MEANING OF CROWN.
507
public et du domaine de l’Etat clans
chaque province, et parmi les ac-
cessoires du domaine public se
trouve le droit de déshérence sujet
au controle judiciaire, législatif et
exécutif, de la Province de Québec.
J’en conclus que dans la présente
instance les biens de la succession
vacante de feu Edouard Fraser,
écquyer, en meubles et en im-
meubles, situés dans la Province
de Québec, appartiennent a la pro—
vince de Québec, représentée dans
cette cause par le procureur-général
de cette Province, ou ce qui est la
meme chose, inais en style plus
respectueux, quoiqu’il ne soit pas
plus correct, par le procureur-
général de Sa Majesté pour la
Province de Québec.
Ramsay, J .: “If the technical
question insisted on at the argu-
ment were the only one in the case,
it could scarcely give rise to any
difficulty. In deﬁning the execu-
tive power, the B. N. A. Act,
sec. 9, declares it to vest in the
Queen, and when we come to the
legislative power in sec. 58 it is
declared to be vested in the Queen,
the Senate, and the House of
Commons. On the other hand,
the executive power of the pro-
vinces is declared to be vested in
an officer called the Lieutenant-
Governor, who is appointed by the
Governor-General [sec. 69], and
the legislative power of the pro-
vince of Quebec is declared to be
vested in the Lieutenant—Governor,
the Legislative Council, and the
House of Assembly. This dis-
tinction is kept up, and the officers
of the provinces are so designated
[secs 63 and 134]. Then as to
the word ‘Crown,’ used in the
Code, its interpretation can give
of the public domain and the do-
main of the State in each province,
and among the accessories of the
public domain is found the right
of escheat, subject to judicial, leg-
islative and executive control,
of the Province of Quebec. I
conclude in the present instance
that the property of the vacant
succession of the late Edward
Fraser, moveable and immoveable,
situate in the Province of Quebec,
belongs to the Province of Quebec,
represented in this cause by the
Attorney-General of this Province,
or, what is the same thing, but in
tone more respectful, although it
may not be more accurate, by the
Attorney-General of Her Majesty
for the Province of Quebec.
[The translation is the joint
work of M. I. Morley and E.
Jackson. Geo. P. Wheeler, Esq.,
barrister-at-law, of Her Majesty’s
Department of the Judicial Privy
Council, has kindly veriﬁed both
French and English]
rise to no diﬁiculty. The Crown
means the sovereign in whom indi~
vidually is vested all the property
of the Crown. Of course for the
purposes of administration, as the
Government became more fully
organised, the revenues of the
Crown had to be appropriated in
diﬁerent ways, and so We have the
privy purse and the civil list. In
like manner we have the separate
purses of the different colonies;
and when we hear of the different
colonies claiming escheats as part
of their revenue, they are only
claiming that such portion of the
revenue legally vested in the
sovereign shall be applied to
colonial purposes. The question
we have therefore to decide, is to
which of the two Governments
have the Queen, Lords, and Com-
mons given escheats? This ques-
tion involves the examination of
secs. 102, 109, and 117 of the
B. N. A. Act. This Act gives-rise
to ‘a ditﬁculty of construction,
ATI‘.-GEN. or
QUEBEC v.
Arr-GEN. or
DOMINION.
508 B.N.A. ACT, S. 109.—DIFFCTS. IN CoNsTRUoTIoN.
ATT.-GEN. OF
QUEBEC v.
AT'In-GEN. OF
DOMINION.
OCCHI‘S.
which, perhaps, I may exaggerate,
but which is worthy of considera-
tion, and that is the double
enumeration which constantly
It is to be found promi-
nently in sees. 91 and 92. Its
inconvenience there did not escape
the observation of the framers of
the Bill, for they have terminated
sec. 91 by a saving clause of great
importance, which makes sec. 92
subordinate to see. 91. In the
sections we have now to consider,
we have again the double enumera-
tion, but without the saving
clause in favour of either enumera-
tion. This sec. 102 gives to the
Dominion ‘all duties and revenues,
except such portions thereof as are
by this Act reserved to the respec—
tive legislatures of the provinces,’
while sec. 117 gives to the several
provinces ‘all their respective
public property not otherwise dis-
posed of by this Act.’ What is
included in ‘revenues,’ what is
designated by ‘public property ’ P
Is the Dominion to have all the
revenues, and are the provinces to
. own only the naked property P I
see no mode of reconciling these
two sections but by referring to
see. 109. There we ﬁnd that by
property is intended lands, mines,
minerals, and royalties. Now
what are ‘Royalties’? In the
largest sense of the word they are
all royal prerogatives. It is evi-
dent that the word is not used in
that sense, and it must be limited.
But how far? It would be mani-
festly indefensible to limit it to
royalties arising from mines of
- gold and silver, and therefore it
would seem fair to make it extend
to all those minor prerogatives of
the Crown which formed part of
the property of the Crown. This
interpretation is open to objec—
tion; but it is obvious that
. secs. 102 and 117 cannot both be
» maintained in their integrity, and
as they are both general sections
and there is no saving clause, the
interpretation should prevail which
is ,most in accordance with the
other sections of the Act. I think,
therefore, that the appeal must be
maintained, and the intervention
of the Minister of Justice be
rejected.”
Sanborn, J .: “This case in-
volves a question between the
Government of the province of
Quebec and the Government of
the Dominion of Canada. Edward
Fraser died at Fraserville, in the
province of Quebec, on 2 Feb.
1874, unmarried and without
heirs, and intestate. Under art.
637 C. C., his succession falls to
the Crown. This is one of the
minor prerogatives of the Crown
which, in colonies having represen-
tative legislatures,becomes "subj ect-
to local legislation. See Chitty,
Prerog. p. 27 . The sovereign’s
individual prerogative is subordi-
nated to his power as exercised in
Parliament. This estate would un-
doubtedly have fallen into the
consolidated revenue had it be-
come open before the confederation
of the provinces. See C. S. C.
c. 10. s. 5, also c. 16. s. 1. The
question here is, does it belong to
the province of Quebec or to the
Dominion of Canada? The ﬁrst
thing to be noticed is that this
minor prerogative came under the
control of the late province of
Canada by virtue of the power
conferred on that province over the
subject of property and civil rights
within the province. The personal
prerogative of the sovereign was
yielded up to the province when
the royal assent was given to the
Act 9 Vict- c. 114., which declares
that a civil list is accepted by Her
Majesty instead of all territorial
and other revenues at the disposal
of the Crown arising in the pro-
vince. The salary of the Governor-
General and the salaries of the
judges which comprised that civil
list have always been paid by the
colonial Governments, and the
royal prerogatives thus yielded to
the province have never been with-
drawn.
“ Under. sec. _92,~_ sub-sec. 1.3,
HB.N.A. ACT, s. 109.——H-MINOR PREROGATIVES.
509
of the B. N. A. Act, 1867, the
power to legislate over the subject
of property and civil rights within
each province was given to the
legislature of the province. Under
sec. 102 of the said Act, it is pro-
vided that ‘ all duties and revenues
over which the respective legisla—
tures of Canada, Nova Scotia, and
New Brunswick had power of
appropriation, except such portions
thereof as are by that Act reserved
to the respective legislatures of the
province, or are raised by them in
accordance with the special powers
conferred on them by that Act,
shall form one consolidated revenue
fund, to be appropriated for the
public service of Canada.’ Escheats,
of the nature of the one in question,
are subject to the control of the
provincial legislatures. It is com-
petent for the Parliament of Quebec
to establish the law relating to
descents, and it may amend,
modify, or repeal the art. 687 of
the Civil Code. It may be said
that there is a limit to this power
of provincial legislation over pro-
perty; that it cannot enact that
property, which by the Imperial
Act is given to the Dominion, shall
belong to the province. This is
true, but the public property given
to the Dominion is given in express
terms (see sec. 108), and speciﬁed
in the third schedule appended to
the Act, such as canals, harbours,
850. Over such property the pro-
vincial legislature has no power to
legislate, but as having the power
to legislate concerning property,
that is private property, and civil
rights within the province. The
right to determine to whom the
property. of a person dying intes-
tate without heirs shall go, is of
the same nature as the law of
descent, in fact it is a part of the
law of descent, which I presume
no one doubts, pertains to the
jurisdiction of the provincial legis-
latures. Escheats, pro defecto
sangaim's, only go to the Crown
with the same title as the person
leaving them had: 4 Kent’s Com.
427; Case of Capt. Gordon, Foster’s
Crown Law, p. 95. This proves
that the law governing descents
governs this subject. By sec. 109
of the same Act, it is declared that
‘ all lands, mines, minerals, and
royalties belonging to the several
provinces of Canada, Nova Scotia,
and New Brunswick at the Union,
and all sums then due or payable
for such lands, mines, minerals, or
royalties, shall belong to the several
provinces of Ontario, Quebec,
Nova Scotia, and New Brunswick,
in which the same are situated or
arise.’ This covers all reversions,
as well as existing lands, mines,
minerals, and royalties. Escheats
of the nature of the one in ques-
tion are royalties: Bro. Law Dict.
p. 317, where he deﬁnes royal-
ties to be rights and prerogatives
of the king : 1 Black 241.
“ In the case of Dyke Iv. Walford,
decided in the Privy Council,
from the Chancery Court, York,
Dec. 11, 1846, 5 M00. P. C. 434:,
it was held that jara regalz'a in-
cluded personal effects of a bastard
dying intestate, and go to the king.
It may be said that the word
royalties in this section is used in
a more restricted sense, and by it
are intended rents or dues payable
for the right of mining for the
precious metals. I see no reason so
to restrictit, particularly as the same
reason that would give a class of
royal perquisites to the provinces
where they arise would give all. And
it is more reasonable to interpret
the word in its primary than in its
secondary and limited sense, which
is a meaning given to these royal
rents by miners, than the true sense
of the word. In connection with the
reasoning before adopted, sec. 117
has force, which says: ‘ The
several provinces shall retain all
their respective public property not
otherwise disposed of in this Act,
subject to the right of Canada to
assume any lands or public pro-
perty required for fortiﬁcations or
for the defence of the country.’
This, in connection with sec. 108
ATT.-GEN. 0F
QUEBEC v.
ATT.-GEN. OF
DommoN.
510 B.N.A. ACT,s.109.—-FEUDAL LORD & nscHEA'rs.
AT'l‘.-GEN. or
QUEBEC v.
ATT.-GEN. or
DOMINION.
AT'I‘.-GEN. 0F
ONTARIO 'v.
MERCER.
and schedule 3, shows what sort of
public property is given to the
Dominion, and for what purposes.
“For these reasons the Court
considers that the estate of Fraser,
if subject to escheat, falls to the
province of Quebec. There is
every reason why it should be so ;
these escheats are of feudal origin,
and the land reverted to the feudal
lord or to the Crown, and, as Brown
in his Legal Maxims, p. 317, ex-
presses it, ‘this is in accordance
with the spirit of the ancient feudal
doctrine expressed in the maxim,
quad nullz'us est, est domz'm' regis.’
All power which might at any
time have existed in the seignior
or sovereign over lands or reversion
of lands is now vested in the pro-
vince where they are situate. This
points to the reversion in case of
lands; as respects moveables, it is
reasonable that the same result
should be. It harmonizes with
the purposes and objects of the
law as indicated by the Act creating
the two jurisdictions. The general
powers and revenues and public
property of the Dominion have
much the same relation to those
of the provinces that the United
States bear to the several States,
and it has never been pretended
that the escheats pro dqﬂecto
sanguz'm's became the property of
the United States. The reversion,
as well in personal as real estate,
has been always given to the State
within which the escheat arises.
This is assumed as law in the case
of Cross '0. De Valle, Dec. 1863,
68 S. C. U. S. (1 Wall) 1. It
will be seen that the same reason-
ing has led to this conclusion as
has been adopted in this case.
Cooley on Const. Lim. p. 525,
speaking of eminent domain, says :
‘ Under the peculiar American
system, the protection and regu-
lation of private rights, privileges,
and immunities, in general, properly
pertain to the, State governments,
and those governments are expected
to make provision for these circum-
stances and necessities, which are
usually provided for their citizens
through the exercise of eminent
domain; the right itself, it would
seem, must pertain to those govern-
ments also, rather than to the
government of the nation, and
such has been the conclusion of
the authorities.’ The Court deter-
mines this question as one between
the province and the Dominion,
although it is somewhat curiously
presented, one Attorney-General
claiming on behalf of the Queen
against another Attorney-General
claiming on behalf of the Queen.
We must understand this as a
claim for the respective govern-
ments, and we must understand by
the Queen’ what art. -637 of. the
Code means by the Crown, not the
Queen of the Crown, but one or
other of the governments which
we decide to be that of the pro-
vince. In doing this we do not ﬁnd
it necessary to determine which
government has the right to act for
the Queen, or whether both have.
It is a question as to distribution of
rights and privileges by the B. N.
A. Act, and, from careful study of
that Act, we think this minor pre-
rogative belongs to the province
where it arises.” His Lordship
then gave the formal judgment
of the Court.
ATT. — GEN. 0F ONTARIO o.
MERCER, in S. C. 14 Nov. 1881,
5 S. C. R. 538 [Fournier, Tasche-
reau, and Gwynne, JJ., Sir W.
Ritchie, C.J., and Strong, J .,
dissenting], reversed Ct. of Appeal,
Ontario [Moss, C. .T. A., Burton,
Patterson, and Morrison, JJ.A.],
6 O. A. R. 576, and Proudfoot,
V.C., 26 Grant 126; in P. C. July
18, 1883, 8 App. Gas. 767; 52
L. J. P. C. 84; 49 L. T. 312. In
that case it was held by the Judicial
Committee, reversing the S. C.,
that escheated lands in Ontario were
within the 109th section, and “ be-
longed,” in the sense in which this
word is used in the B. N. A. Act,
to the province of Ontario and not
to the Dominion.
B.N.A. ACT, s. 109.-RIGHT TO UNAPP. PROP.
511
The facts are thus stated by
Patterson, J .: “ The questions be-
fore us arise upon a demurrer by
Andrew F. Mercer, one of the
defendants to an information ﬁled
by the Attorney-General ‘ of On-
tario for the purpose of obtaining
possession of land. in the city of
Toronto, which was the property
of Andrew Mercer, who is now
deceased. The facts with which
we have to deal are, therefore,
those stated in the information :—
Andrew Mercer died in June 1871,
intestate, and without leaving any
heir or next of kin. He was at
the time of his death seized in fee
simple of the land. Immediately
after his death the defendants en-
tered into possession of the land
without the permission or assent
of Her Majesty, and refused to
give up possession to Her Majesty
or to the informant acting on her
behalf in this province. In 187 5
the defendant, Andrew F- Mercer,
instituted a suit in Chancery against
the Attorney-General, in which a
decree was pronounced in accor—
dance with the prayer of his bill,
referring it to the Master to inquire
whether the late Andrew Mercer
left any heirs at law or next of kin
him surviving. Pending that in-
quiry, an issue was tried at the
instance of A. F. Mercer, which
resulted in a decree that A. F.
Mercer was not the lawful son' and
heir at law or next of kin of
Andrew Mercer, and that the de-
fendant, Bridget O’Reilly, the
mother of A. F. Mercer, was never
married to Andrew Mercer; and
directing the inquiry formerly di-
rected to be proceededwith. That
was done, and a decree was made,
after a hearing on further direc-
tions, dec‘aring that Andrew Mer-
cer died intestate and without heirs
or next of kin, and that by reason
thereof his real and personal estate
had become vested in Her Majesty
in right of her royal prerogative.
The demurrer was overruled by
Proudfoot, V.C., and the defen-
dant, A. F. Mercer, appealed from
the decision.
cheat to lands in this province is
disputed; 2nd, that if the right
exists it belonged to the Dominion
and not to the province; 3rd, that
the Crown can only proceed by
common law process of inquisition
of office; 4th, that if inquisition of
office has been rendered unnecessary
by the Ontario Act of 1877, 3.8.0.
o. 94., the only substituted remedy
is an action of ejectment, and the
Court of Chancery had therefore no
jurisdiction.” The second question
seemed the important one ; and his
Lordship said he had little to add
to what was said in Attorney-
General of Quebec 12. Attorney-
General of the Dominion, Church '0.
Blake, 2 Q. L. It. 236 [see above].
Burton, J.A., said he found
no warrant in the B. N. A. Act
for the assertion so frequently
made that all rights or property
not expressly given to the province
passed to the Dominion. “ On the
contrary, I take it to be clear that
the provinces retained all property
and rights which were previously
vested in them under the consti_
tutional Acts then in force, except
those which by the Confederation
Act are taken from them and trans-
ferred to the Dominion. . . In
the ﬁrst place the provinces al-
ready existed with a constitution of
their own, with certain properties,
rights, assets, and revenues, and
these could only be taken from
them by their own consent, or by
the legislation of a superior au-
thority. All lands belonging to
the several provinces were, previous
to confederation, under our form or
system of government, vested in the
sovereign as a mere matter of form,
it being a simple trust for the
beneﬁt of the provinces, but were
then granted in the Queen’s name
by the several Lieutenant-Gover-
nors of the provinces (with the
exception of Canada, which was
then under the immediate govern-
ment of the Governor-General),
and since confederation, in all the
He claimed, 1st, that ATT.-GEN. or i
the application of the law of es- ONTARIO "-
MERCER.
512 B.N.A. ACT, s. Ice-MEANING oF “ALL LANDS.”
ATT.-GEN. OF
ONTARIO v.
MERCER.
provinces, grants from the Crown
of public lands are invariably made
by the Lieutenant-Governors in Her
Majesty’s name, except in the case
of Indian lands, which, being placed
under Dominion control, are grant-
ed in Her Majesty’s name by the
Governor-General. These lands,
then, though nominally the pro-
perty of the Crown, were in truth
and in fact the property of the
province, were entirely under the
control of the executive and legis-
lature of the province, and although
the right of escheat, which is some-
times spoken of as a species of re-
version, was in the Crown, it was
always exercised for the beneﬁt of
the parties beneﬁcially interested
in such reversionary interest, or,
in other words, the Government of
the particular province in which
the land was situate. This right,
then, as well as the lands them-
selves, belonged‘to the province,
and when we refer to the Imperial
Act dealing with these subjects,
what R0 we ﬁnd? By sec. 109,
all lands belonging to the province
of Canada, and all sums then due
and payable for such lands, shall
belong to the several provinces of
Ontario and Quebec, in which the
same are situate, subject to any
interest other than that of the pro-
vince in the same. The term ‘all
lands’ must be held to include
any interest which the province
then held or was entitled to in the
lands, including any reversionary
interest or interest incident to the
tenure. If not, no disposition what-
ever is made of such interest, and it
will remain in Her Majesty, not
impressed with any trust, a result
which would be too absurd to
suppose ; but yet that would be the
result, treating it as a reversionary
interest or mere incident to the
tenure, for in no portion of the Con-
federation Act is it given to the
Dominion. The right can be re-
garded as a prerogative right to
this extent, and for this purpose
only, that it is convenient under
our form of government that the
whole domain should be vested
in Her Majesty, but purely and
solely for the beneﬁt of the pro—
vince. The land is under the sole
control of the Dominion authorities.
Her Majesty’s name is used by
them in every grant from the
Crown in the same way as in many
other matters, as, for instance, in
every writ which under provincial
legislation issues from the courts of
law, . Neither, then, as a
prerogative of the sovereign nor as
an incident to the tenure has the Do-
minion, in my opinion, been shown
to be entitled. I prefer to place
my judgment on the ground I have
indicated above rather’ than that
adopted by the Court of Appeal in
Quebec, although I think there
is no material diﬁerence between
them.”
In the S. C., Sir W. Ritchie,
C.J., was of opinion “it was not
intended by the B. N. A. Act to
deprive the provinces of the exe-
cutive and legislative control over
the public property of the province
or the incidents of such property
or other matters of a purely local
nature, except such as are specially
taken from them, and that within
the scope of the executive and
legislative powers conﬁded to the
Dominion and provinces respec-
tively they are separate and inde-
pendent, neither having any right
to interfere with or intrude on
those of the other. I do
not think, from a most careful con-
sideration of the B.N.A. Act, that it
could have been the intention of
Parliament that while the public
properties, and the revenues and the
proceeds from the disposition there-
of, should be retained by the pro-
vinces, and they so continue to
retain the position occupied by
the surrender to them of the
Crown rights, that on escheat the
escheated lands should not revert
to the provinces, but instead there-
of should belong to the Dominion
and so the management, control,
and disposition of what are com-
monly called the Crown lands or
B.N.A. ACT, s. 109.—~TENURE IN SOCAGE.
513
public domain lands in the provinces
consequently be divided by the
withdrawal of the escheated lands
from the control of the Government
and legislation of the provinces,
and vested in the Parliament of the
Dominion. With Sir W. Ritchie,
C.J., Strong, J., agreed. Fournier,
Taschereau,andGwynne,J J ., rested
their opinion on the ground that
any revenue derived from escheats
by sec. 102 were placed under the
control of the Parliament of
Canada as part of the consoli-
dated revenue of Canada .
1883, July 18. In the Privy
Council, Earl of Selborne, L.C.,
who delivered the judgment [there
being also present Sir B. Peacock,
Sir M. E. Smith, Sir R. Collier,
Sir R. Couch, and Sir A. Hob-
house], said: “ The question to be
determined in this case, is whether
lands in the prmdnce of Ontario,
escheated to the Crown for defect
of heirs, ‘belong’ (in the sense
in which the verb is used in
the British North America Act,
1867) to the province of Ontario
or to the Dominion of Canada.
“By the Imperial Statute 31
George III. 0. 31. s. 43, it was pro-
vided that all lands which should
be thereafter granted, within the
province of Upper Canada (now
Ontario), should be granted in free
and common socage, in like manner
as lands were then holden in free
and common socage in England.
The argument before their Lord-
ships, on both sides, proceeded
upon the assumption that the lands
now in question were so holden.
“ All land in England, in the
hands of any subject, was holden
of some lord by some kind of ser-
vice, and was deemed in law to
have been originally derived from
the Crown, ‘ and therefore the king
was sovereign lord, or lord para-
mount, either mediate or immediate,
of all and every parcel of land
within the realm’ (Co. Litt. 65A).
The king had ‘ domz'm'am direct-
um,’ the subject ‘ domz'm'am utz'le ’
(ibz'cL, 1A). The word ‘ tenure’
S 2340.
signiﬁed this relation of tenant to
lord. Free or common socage
was one of the ancient modes of
tenure (‘ A man may hold of his
lord by fealty- only, and such
tenure is tenure in socage,’ Litt.
sec. 118), which by the statute
12 Ch. II. c. 24. was substituted
throughout England for the former
tenures by knight service and by
socage in capite of the king,
and relieved from various feudal
burdens. Some, however, of the
former incidents were expressly
preserved by that statute, and
others (escheat being one of them),
though not expressly mentioned,
were not taken away.
“ ‘ Escheat is a word of art, and
signiﬁeth properly when by acci-
dent the lands fall to the lord of
whom they are holden, in which
case we say the fee is escheat-
ed’ (Co. Litt. 13 A). Elsewhere
(ﬁnd, 928) it is called ‘a casual
proﬁt,’ as happening to the lord
‘by chance and unlooked for.’
The writ of escheat, when the
tenant died without heirs, was in
this form :—'-‘ The king to the
sheriff, 850. Command A., &c.,
that he render to B. ten acres of
land, with the appurtenances, in
N., which C. held of him, and
which ought to revert to him the
said B. as his escheat, for that the
said O. died without heirs ’ N.
B. 14-1 If there was a mesne
lord, the escheat was to him; if
not, to the king.
“ From the use of the word ‘ re-
vert,’ in the writ of escheat, is
manifestly derived the language
of some authorities which speak of
escheat as a species of ‘ reversion.’
There cannot, in the usual and
proper sense of the term, he a
reversion expectant upon an estate
in fee simple. What is meant is
that, when there is no longer any
tenant, the land returns, by reason
of tenure, to the lord by whom, or
by whose predecessors in title, the
tenure was created. Other writers
speak of the lord as taking it by
way of succession or inheritance,
KK
ATT.-GEN. OF
ONTARIO o.
MERCER.
5141
B.N.A. ACT, s. 109.—-CIVIL LIST ACTS.
ATT.-GEN. or
ONTARIO v.
MERCER.
as if from the tenant, which is cer-
tainly not accurate. The tenant’s
estate (subject to any charges upon
it which he may have created) has
come to an end, and the lord is in
by his own right.
“ The proﬁts, and the proceeds of
sales, of lands escheated to the
Crown, were in England part of
the casual hereditary revenues of
the Crown, and (subject to those
powers of disposition which were
reserved to the sovereign by the
Restraining and Civil List Acts)
they were among the hereditary
revenues placed at the disposal of
Parliament by the Civil List Acts
passed at the hegirnlingv ofvjthe
present and the last preceding
reign. Those Acts extended, ex-
pressly, to all such casual revenues
arising in any of the colonies or
foreign possessions of the Crown.
But the right of the several
colonial legislatures to appropriate
and deal with them, within their
respective territorial limits, was
recognised by the Imperial Statute
l5 & 16 Vict. c. 39., and by an
earlier Imperial Statute (10 & 11
Vict. c. 71.), conﬁrming the
Canada Civil List Act, passed in
1846 after the union of Upper and
Lower Canada, by which Act the
provision made by the Colonial
Legislature for the charges of the
Royal Government in Canada was
accepted and taken, instead of ‘ all
territorial and other revenues,’
then at the disposal of the Crown,
arising in that province; over
which (as to three-ﬁfths perma-
nently, and as to two-ﬁfths during
the life of the Queen, and for ﬁve
years afterwards) the legislature
of the province was to have full
power of appropriation. It may
be remarked that the Civil List
Acts of the province of Canada
contained no reservation of es-
cheats, similar to sec. 12 of each of
the Imperial Civil List Acts above
referred to. It must have been
purposely omitted, in order that
escheats might be dealt with by
the Government or Legislature of
Canada and not by the Crown,
in whose disposition they must
have remained if they had not been
in that of the United Province of
Canada.
“ When, therefore, the British
North America Act of 1867 passed,
the revenue arising from all es-
cheats to the Crown, within the
then province of Canada, was sub-
ject to the disposal and appropria-
tion of the Canadian Legislature.
“ That Act united into one
‘Dominion,’ under the name of
‘ Canada,’ the former provinces of
Canada (which it subdivided into
the two new provinces of Ontario
and Quebec, corresponding with
whatliad been before 1840 Upper
and Lower Canada), Nova Scotia,
and New Brunswick. It estab-
lished a Dominion Government and
Legislature and provincial Govern-
ments and Legislatures, making
such a division and apportionment
between them of powers, responsi-
bilities, and rights as was thought
expedient. In particular, it im-
posed upon the Dominion the
charge of the general public
debts of the several pre-existing
provinces, and vested in the Do-
minion (subject to exceptions, on
which the present question mainly
turns) the general public revenues,
as then existing, of those provinces.
This was done by sec. 102 of the
Act, which is in these words:—‘ All
duties and revenues, over which
the respective Legislatures of
Canada, Nova Scotia, and New
Brunswick, before and at the
Union, had and have power of
appropriation, except such portions
thereof as are by this Act reserved
to the respective legislatures of the
provinces, or are raised by them in
accordance with the special powers
conferred upon them by this Act,
shall form one consolidated reves
nue fund, to be appropriated for
the public service of Canada, in
the manner, and subject to the
charges, in this Act provided.’
“ If there had been nothing in
the Act leading to a contrary con-
B.N.A. ACT, s. 109.—THIS SECTION EXAMINED. 515
clusion, their Lordships might have
found it diﬂicult to hold that the
word ‘revenues,’ in this section,
did not include territorial as well
as other revenues; or that a title
in the Dominion to the revenues
arising from public lands did not
carry with it a right of disposal
and appropriation over the lands
themselves. Unless, therefore, the
casual revenue, arising from lands
escheated to the Crown after the
Union, is excepted and reserved to
the provincial legislatures, within
the meaning of this section, it
would seem to follow that it be-
longs to the consolidated revenue
fund of the Dominion. If it is so
excepted and reserved, it falls
within sec. 126 of the Act, which
provided that ‘ such portions of the
duties and revenues, over which
the respective legislatures of
Canada, Nova Scotia, and New
Brunswick had, before the Union,
power of appropriation, as are by
this Act reserved to the respective
governments or legislatures of the
provinces, and all duties and reve-
nues raised by them in accordance
with the special powers conferred
upon them by this Act, shall, in
each province, form one consoli-
dated revenue fund, to be appro-
priated for the public service of
the province.’
“Their Lordships, for the
reasons above stated, assume the
burden of proving that escheats,
subsequent to the Union, are
within the sources of revenue ex-
cepted and reserved to the pro-
vinces, to rest upon the provinces.
But, if all ordinary territorial re-
venues arising within the pro-
vinces are so excepted and reserved,
it is not at priorz' probable that
this particular kind of casual
territorial revenue (not being ex-
pressly provided for) would have
been, unless by accident and over-
sight, transferred to the Dominion.
The words of the statute must
receive their proper construction,
whatever that may be; but, if this
is doubtful, the more consistent
and probable construction ought,
in their Lordships’ opinion, to be
preferred. And it is a circum-
stance not without weight in the
same direction, that, while ‘ duties
and revenues ’ only are appro-
priated to the Dominion, the public
property itself, by which territorial
revenues are produced (as distinct
from the revenues arising from it),
is found to be appropriated to the
provinces.
“The words of exception in
sec. 102 refer to revenues of two
kinds: (1) such portions of the
pre-existing ‘ duties and revenues ’
as were by the Act ‘reserved to
the respective legislatures of the
provinces ’; and (2) such duties
and revenues as might be ‘ raised
by them, in accordance with the
special powers conferred on them
by the Act.’ It is with the former
only of these two kinds of reve-
nues that their Lordships are now
concerned; the latter being the
produce of that power of ‘ direct
taxation within the provinces, in
order to the raising of a revenue
for provincial purposes,’ which is
conferred upon the provincial
legislatures by sec. 92 of the Act.
“ There is only one clause in the
Act by which any sources of reve-
nue appear to be distinctly re-
served to the provinces, viz., the
109th section :-—-‘ All lands, mines,
minerals, and royalties belonging
to the several provinces of Canada,
Nova Scotia, and New Brunswick,
at the Union, and all sums then
due or payable for such lands,
mines, minerals, or royalties, shall
belong to the several provinces of
Ontario, Quebec, Nova Scotia, and
New Brunswick, in which the
same are situate or arise, subject to
any trusts existing in respect
thereof, and to any interest other
than that of the province in the
same.’ The provincial legislatures
are not, in terms, here mentioned ;
but the words ‘ shall belong to the
several provinces’ are obviously
equivalent to those used in sec. 126,
‘ are by this Act reserved to the
ATT.-GEN. or
ONTARIO v.
MERCER.
KK2
516
B.N.A. ACT, s. 109—TERRITORIAL REVENUE.
ATT.-GEN. OF
ONTARIO v.
MERCER.
respective governments or legisla-
tures of the provinces.’ That they
do not apply to all lands held as
private property at the time of the
Union seems clear from the corre-
sponding language of sec. 125, ‘ no
lands or property belonging to
Canada, or any province, shall be
liable to taxation’; where public
property only must be intended.
They evidently mean lands, &c.,
which were, at the time of the
Union, in some sense, and to some
extent, pnblici jnris .- and, in this
respect, they receive illustration
from another section, the 117th
(which their Lordships do not re-
gard as otherw ise very material).
‘ the several provinces shall retain
all their respective public property,
not otherwise disposed of by this
Act, subject to the right of Canada
to assume any lands or public
property required for fortiﬁcations
or for the defence of the country.’
“ Their Lordships are not satis-
ﬁed that see. 102, when it speaks
of certain portions of the then
existing duties and revenues as
‘ reserved to the respective legisla-
tures of the provinces,’ ought to
be understood as referring to the
powers of provincial legislation
conferred by sec. 92. Even, how-
ever, if this were so held, the fact
that exclusive powers of legislation
were given to the provinces as to
‘the management and sale of the
public lands belonging to the
province,’ would still leave it neces-
sary to resort to see. 109 in order
to determine what those public
lands were. The extent of the
provincial power of legislation
over ‘property and civil rights in
the province ’ cannot be ascertained
without at the same time ascer-
taining the power and rights of
the Dominion under sees. 91 and
102, and therefore cannot throw
much light upon the extent of the
exceptions and reservations now in
question.
“It was not disputed, in the
argument for the Dominion at the
bar, that all territorial revenues
arising within each province from
‘lands’ (in which term must be
comprehended all estates in land)
which, at the time of the Union,
belonged to the Crown, were re-
served to the respective provinces
by sec. 109; and it was admitted
that no distinction could, in that
respect, be made between Crown
lands then ungranted and lands
which had previously reverted to
the Crown by escheat. But it was
insisted that a line was drawn at
the date of the Union, and that the
words were not suﬂicient to re-
serve any lands afterwards es-
cheated, which, at the time of the
Union, were in private hands, and
did not then 'beleng to the Crown.
“ If the word ‘ lands ’ had stood
alone, it might have been difficult
to resist the force of this argu-
ment. It would have been difficult
to say that the right of the lord
paramount to future escheats was
‘ land belonging to him ’ at a time
when the fee simple was still in
the freeholder. If capable of being
described as an interest in land, it
was certainly not a present pro-
prietary right to the land itself.
The word ‘lands,’ however, does
not here stand alone. The real
question is as to the effect of the
words ‘lands, mines, minerals, and
royalties’ taken together. In the
Court of Appeal in the province of
Quebec it has been held that these
words are sufficient to pass subse-
quent escheats; and for this pur-
pose stress was laid by some at
least of the learned judges of that
court (the others not dissenting)
on the particular word ‘royalties’
in this context. If ‘lands and
royalties ’ only had been mentioned
(without ‘ mines ’ and ‘ minerals ’),
it would have been clear that the
right of escheats (whenever they
might fall), incident at the time of
the Union to the tenure of all soc-
age lands held from the Crown,
was a ‘ royalty ’ then belonging to
the Crown within the province, so
as to be reserved to the province
by this section and excepted from
B.N.A. ACT, 5. 109—MEANING OF “ROYALTIEC.”
517
sec. 102. After full consideration,
their Lordships agree with the
Quebec Court in thinking that the
mention of ‘mines’ and minerals’
in this context is not enough to
deprive the word ‘royalties’ of
what would otherwise have been
its proper force. It is true (as
was observed in some of the
opinions of the majority of the
judges in the Supreme Court of
Canada) that this word ‘ royalties,’
in mining grants or leases (whether
granted by the Crown or by a
subject), has often a special sense,
signifying that part of the red-
dendum which is variable, and
depends upon the quantity of
minerals gotten. It is also true
that in Crown grants of land in
British North America the prac-
tice has generally been to reserve
to the Crown, not only royal mines,
properly so called, but minerals
generally; and that mining grants
or leases had, before the Union,
been made by the Crown both in
Nova Scotia and in New Bruns-
wick ; and that in two Acts of the
province of Nova Scotia (one as
to coal mines and the other as to
mines and minerals generally) the
word ‘ royalties ’ had been used in
its special sense as applicable to
the variable redderida in mining
grants or leases. Another Nova
Scotia Act of 1849, surrendering
to the provincial legislature the
territorial and casual revenues of
the Crown arising within the pro—
vince, was also referred to by
Mr. Justice Gwynne. But the
terms of that Act were very
similar to those now under con-
sideration; and if ‘royalties,’ in
the context which we have here to
consider, do not necessarily and
solely mean reddenda in mining
grants or leases, neither may they
in that statute.
“ It appears, however, to their
Lordships to be a fallacy to assume
that, because the word ‘ royalties ’
in this context would not be in-
oﬂicious or insensible, if it were
regarded as having reference to
mines and minerals, it ought, there-
fore, to be limited to those sub—
jects. They see no reason why it
should not have its primary and
appropriate sense, as to (at all
events) all the subjects with which
it is here found associated—lands,
as well as mines and minerals.
Even as to mines and minerals, it
here necessarily signiﬁes rights be-
longing to the Crown, are coronre.
The general subject of the whole
section is of a high political nature ;
it is the attribution of royal terri-
torial rights, for purposes of reve-
nue and government, to the pro—
vinces in which they are situate
or arise. It is a sound maxim of
law, that every word ought, primd
facie, to be construed in its pri-
mary and natural sense, unless a
secondary or more limited sense is
required by the subject or the
context. In its primary and
natural sense, ‘ royalties ’ is merely
the English translation or equiva-
lent of ‘ regalitates,’ ‘jara rega-
lia,’ ‘jara regia.’ (See in race
‘ royalties,’ Cowel’s ‘ Interpreter ’;
Wharton’s Law Lexicon ; Tomlins’
and Jacobs’ Law Dictionaries.)
‘Regalia’ and ‘regalitates,’ ac-
cording to Ducange, are ‘jara
regia ’; and Spelman (Gloss.
Arch.) says, ‘Regalia dieuritar
jzira omnia ad ﬁscam spectantia.’
The subject was discussed, with
much fulness of learning, in Dyke
'v. Walford (5 M00. P. C. 634),
where a Crown grant of jara
regalia, belonging to the County
Palatine of Lancaster, was held to
pass the right to bona oacantia.
‘ That it is a jus,’ (said Mr. Ellis,
in his able argument, ibid., p. 480),
‘is indisputable; it must also be
regale; for the Crown holds it
generally through England by
royal prerogative, and it goes to
the successor of the Crown, not to
the heir or personal representative
of the sovereign. It stands on the
same footing as the right to
escheats, to the land between high
and low water mark, to felons’
goods, to treasure trove, and other
AT'1‘.-GEN. or
ONTARIO v.
MERCER.
518
RNA. ACT, s. 109.—ESCHEATS IN P. E. I.
ATT.-GEN. or
ONTARIO v.
MERCER.
analogous rights.’ With this
statement of the law their Lord-
ships agree, and they consider it to
have been, in substance, affirmed
by the judgment of Her Majesty
in Council in that case.
“Their Lordships are not now
called upon to decide whether the
word ‘royalties,’ in sec. 109 of
the British North America Act of
1867, extends to other royal
rights besides those connected with
‘lands,’ ‘ mines,’ and ‘ minerals.’
The question is, whether it ought
to be restrained to rights connected
with mines and minerals only,
to the exclusion of royalties, such
as escheats, in vrespect of lands.
Their Lordships ﬁnd nothing in
the subject, or the context, or in
any other part of the Act, to
justify such a restriction of its
sense. The larger interpretation
(which they regard as, in itself,
the more proper and natural) also
seems to be that most consistent
with the nature and general objects
of this particular enactment, which
certainly includes all other ordi-
nary territorial revenues of the
Crown arising within the respec-
tive provinces.
“ The conclusion at which their
Lordships have arrived is, that
the escheat in question belongs to
the province of Ontario, and they
will humbly advise Her Majesty
that the judgment appealed from
ought to be reversed, and that of
the Vice-Chancellor and Court of
Appeal of Ontario restored. It
is some satisfaction to know, that
in this result the courts of Quebec
and Ontario have agreed; and,
though it diﬁers from the opinion
of four judges, constituting the
majority in the Supreme Court of
Canada, two of the judges of that
court, including the Chief Justice,
dissented from that opinion.
“This being a question of a
public nature, the case does not
appear to their Lordships to be
one for costs.”
Prince Edward Island General
Assembly passed in 1881, c. 18., an
Act respecting the administration
by the Crown of the estates of in-
testates in certain cases. By sec. 8
it was provided that moneys realised
from estates to which the Attorney-
General is administrator under the
Act shall be kept in a separate
account of such bank, or invested
in such manner, as the Lieutenant-
Governor in Council may from
time to time appoint, and all
moneys which have been unclaimed
for ten years shall from time to
time be paid into the treasury of
the island for the use and beneﬁt
of Her Majesty. The Minister
of Justice (A. Campbell) reported
among the estates to which the
Attorney-General ’ may "by that Act
become administrator is included
the estates of persons dying intes-
tate without heirs or next of kin,
and he reported the case depended
on the decision in Mercer v. The
Attorney - General. Prov. Leg,
1886,915.
Manitoba, in 1884, by 47 Vict.
c. 26., provided that the province
should take possession of property,
real and personal, which escheats
to the Crown by reason of the
person last seized thereof or entitled
thereto dying intestate or without
lawful heirs, or which became for-
feited to the Crown for any cause
except crime, the Minister of
Justice citing Attorney-General of
Ontario 2:. Mercer said. The right
of the province of Ontario to real
escheated estates was established,
but no decision had yet been
reached as to whether the province
in which the property is situate, or
the Dominion, is entitled to personal
property escheated for want of
heirs. [Attorney-General of Que-
bee v. Attorney-General of the
Dominion, 2 Q. L. R. 236, was
overlooked]. But that as regards
Manitoba, when it became a pro-
vince, it was not possessed of any
lands, mines, or minerals, and the
Manitoba Act 33 Vict. c. 3. s. 30
provided that all ungranted or
waste lands in the province should
from and after the date of transfer
B.N.A. AcT, s. 109.--MINERALS AND RAILWAY. 519
be vested in the Crown, and ad-
ministered by the Government of
Canada for the purpose of the
Dominion, from which, the Minister
argued, it appeared clear that the
109th section was not applicable
to the province, and the Act was
disallowed. 13 April 1887, Prov.
Leg. p. 210.
ATT.-GEN. OF BRITISH COLUM-
BIA v. ATT.-GEN. or CANADA, in
S. C. Dec. 13, 1887, 14 SC. R. 345
[Sir W. Ritchie, C.J., Taschereau
and Gwynne, J J ., Fournier and
Henry, J J., dissenting], affirming
the decision of Exchequer Court,
taken without argument, which
decision adjudged that the precious
metals in, upon, and under the
public lands granted to the Do-
minion Government under the
Act 47 Vict. (B. C.) c. 14. s. 2, for
the purpose of constructing the
Canadian Paciﬁc Railway, were
vested in the Crown as represented
by the Government of Canada, and
not as represented by the Govern-
ment of British Columbia.
Henry, J ., had givenjudgments in
THE QUEEN v.FARwELL, 14 S. C. R.
392, and four other cases tried before
him at Victoria in 1886,by which he
found that the title to the lands
comprised in what was called the
railway belt of the Canadian
Paciﬁc Railway in British Colum-
bia was not vested in Her Majesty
the Queen for the use and beneﬁt
of Canada, but in Her Majesty for
the use and beneﬁt of British
Columbia. The case of The Queen
2). Farwell. had been argued and
stood for judgment, and on
Dec. 14, 1887, 14 S. C. R. 392,
was reversed by Sir W. Ritchie,
C.J., Strong, Fournier, and
Gwynne, J J ., Henry, J ., dissent-
ing. The question was as to the
rights of Farwell to “lot 6 ” in
the district of Kootenay. He
claimed the lands in question by
virtue of a grant from the British
Columbia Government, dated 13th
Jan. 1885. He made the applica-
tion in October, and it was received THE QUEEN 1’-
by the Surveyor-General 19 Nov.
1883. By the 47 Vict. (B. C.)
c. 14., passed 19 Dec. 1883, amend-
ing an Act of 1880, there was ap-
propriated in trust to the Dominion
the public lands along the line of
the Canadian Railway, wherever it
may be ﬁnally located, to a width
of 20 miles on each side. On
19 April 1884, the Dominion
passed a similar Act. It appears
thata portion of the route of the
railway going through Yellow
Head Pass was abandoned, and a
route going through the Bow River
Pass was adopted. Farwell’s claim
was situate on the Bow River Pass.
On 20 Nov. 1883, by public
notice, the Government of British
Columbia reserved a belt of land on
the Bow River Pass. The Do-
minion contended that the Govern-
ment of British Columbia had no
right to make the grant to Farwell.
Fournier, J ., retained his opinion as
to the precious metals, but as re-
gards the construction put upon the
statute granting provincial lands in
aid of the railway, he thought the
expressions used were suﬁicient to
convey the lands to the Dominion.
ATT.-GEN. or BRITISH Co-
LUMBIA v. ATT.-GEN. or CANADA
[see above] ﬁnally decided these
questions. In P. C. April 3, 1889,
14 App. Cas. 295; 58 L. J. P. C.
88; 60 L. T. 712. Lord Watson,
delivering judgment, reversing the
S. C. [present also, Lord Hals-
bury, L.C., Lord Fitzgerald, Lord
Hobhouse, and Lord Macnaghten],
said :—
“ The question involved in this
appeal is one of considerable in-
terest to the parties, but it will be
found to lie within a very narrow
compass, when the facts, as to
which there is no dispute, are
explained.
“By an Order in Council, dated
the 16th May 1871, Her Majesty,
in pursuance of the enactments of
sec. 146 of the British North
America Act, 1867, was pleased to
FARwELL.
A.TT.—GEN. or
BRITISH Co-
LUMBIA v.
ATT.-GEN. or
CANADA.
520
B.N.A. ACT, s. 109—CAN. PAC. RAILWAY.
ATT.-GEN. OF
BRITISH CO-
LUMBIA v.
ATT.-GEN. OF
CANADA.
ordain that the province of British
Columbia should, from the 29th
day of July following, be admitted
into and form part of the Dominion
of Canada, subject to the provisions
of that Act, and to certain Articles
of Union which had been duly
sanctioned by the Parliaments of
Canada and by the Legislature of
British Columbia. The eleventh
of the Articles of Union is in
these terms :—
“ ‘ 11. The Government of the
Dominion undertake to secure
the commencement simultaneously,
within two years from the date of
Union, of the construction of a
railway from the Paciﬁc towards
the Rocky ‘Mountains, and from
such point as may be selected east
of the Rocky Mountains towards the
Paciﬁc, to connect the seaboard of
British Columbia with the railway
system of Canada; and further, to
secure the completion of such
railway within ten years from the
date of the Union.
“ ‘ And the Government of
British Columbia agree to convey
to the Dominion Government, in
trust, to be appropriated in such
manner as the Dominion may deem
advisable in furtherance of the
construction of the said railway, a
similar extent of public lands along
the line of railway throughout its
entire length in British Columbia,
not to exceed, however, twenty
(20) miles on each side of said
line, as may be appropriated for
the same purpose by the Dominion
Government from the public lands
in the North-West Territories and
the province of Manitoba. Pro-
vided, that the quantity of land
which may be held under pre-
emption right, or by Crown
grant, within the limits of the
tract of land in British Columbia
to be so conveyed to the Do-
minion Government shall be made
good to the Dominion from con-
tiguous public lands; and, pro-
vided further, that until the com-
mencement within two years, as
aforesaid, from the date of the
Union, of the construction of the
said railway, the Government of
British Columbia shall not sell or
alienate any further portions of the
public lands of British Columbia
in any other way than under right
of pre-emption, requiring actual
residence of the pre-emptor on the
land claimed by him. In con-
sideration of the land so to be
conveyed in aid of the construc-
tion of the said railway, the Do-
minion Government agree to pay
to British Columbia, from the date
of the Union, the sum of 100,000
dollars per annum, in half-yearly
payments in advance.’
“ After the Union, owing to en-
gineering andg gtherw ‘difficulties,
there was considerable delay in
constructing the line of railway
through British Columbia. Various
differences arose between the two
Governments, and these were ulti-
mately settled, in the year 1883,
by a provisional agreement, which
was subsequently ratiﬁed by the
respective legislatures of Canada
and the province. Part of the
agreement had reference to the
eleventh Article of Union, which
it modiﬁed to the following extent.
The Government of British Co-
lumbia agreed to convey to the
Government of the Dominion, as
therein provided, the public lands
along the railway, wherever it
might be ﬁnally located, to a width
of 20 miles on either side of the
line, and, in addition, to convey to
the Dominion Government three
and a half millions of acres of
land in the Peace River District,
in one rectangular block, east of
the Rocky Mountains, and joining
the North - West Territory of
Canada. On the other hand, the
Dominion Government undertook,
with all convenient speed, to offer
for sale the lands within the rail-
way belt, on liberal terms, to
actual settlers; and also to give to
persons who had squatted on these
lands a prior right of purchasing
the lands improved, at the rates
charged to settlers’ generally. In
B.N.A. ACT, s. 109—RIGHT TO GOLD MINES.
521
accordance with this agreement,
the lands forming the railway belt
were granted to the Dominion
Government, in terms of the
eleventh Article of Union, by an
Act of the Legislature of British
Columbia, 47 Vict. c. 14. s. 2.
“ In 1884 a controversy arose
between the Dominion and the
provincial Government in regard
to the gold, which had then been
found to exist in considerable quan-
tities within the forty-mile belt.
With the view of udicially ascer—
taining which of them was entitled
to it a special case was adjusted,
commendable for its brevity, which
simply states the issue to be,
whether the precious metals in,
upon, and under the lands within
the forty-mile belt are vested in
the Crown, as represented by the
Government of Canada, or as re-
presented by the Government of
British Columbia? The case was
ﬁrst presented to Fournier, J ., in
the Exchequer Court of Canada,
who, without hearing parties on
the merits, gave a formal judg-
ment in favour of the Dominion.
On appeal, his judgment was,
after a full hearing, afﬁrmed by a
majority of the Supreme Court of
Canada, consisting of Sir William
Ritchie, C.J., with Taschereau
and Gwynne, J J ., the dissentient
members of the court being Four-
nier and Henry, J J .
“It was not disputed, in the
arguments addressed to this Board,
that the question raised in the
special case must be decided ac-
cording to the principles of the
law of England, which, ‘ so far as
not from local circumstances in-
applicable,’ was extended to all
parts of the colony of British
Columbia by ‘the English Law
Ordinance, 1867 .’
“Whether the precious metals
are or are not to be held as in-
cluded in the grant to the Do-
minion Government, must depend
upon the meaning to be attributed
to the words ‘public lands ’ in the
eleventh Article of Union. The
Act 47 Vict. c. 14. s. 2, which was
passed in fulﬁlment of the obliga-
tion imposed upon the province by
that Article and the agreement of
1883, deﬁnes the area of the lands,
but it throws no additional light
upon the nature and extent of the
interest which was intended to
pass to the Dominion. The obli-
gation is to ‘convey’ the lands,
and the Act purports to ‘grant ’
them, neither expression being
strictly appropriate, though suffi-
ciently intelligible for all practical
purposes. The title to the public
lands of British Columbia has all
along been, and still is, vested in
the Crown; but the right to ad-
minister and to dispose of these
lands to settlers, together with all
royal and territorial revenues
arising therefrom, had been trans-
ferred to the province, before its
admission into the Federal Union.
Leaving the precious metals out of
view for the‘ present, it seems clear
that the only ‘ conveyance ’ contem-
plated was a transfer to the Do-
minion of the provincial right to
manage and settle the lands, and
to appropriate their revenues. It
was neither intended that the
lands should be taken out of the
province, nor that the Dominion
Government should occupy the
position of a freeholder within
the province. The object of the
Dominion Government was to re-
coup the cost of constructing the
railway by selling the land to
settlers. Whenever land is so
disposed of, the interest of the
Dominion comes to an end. The
land then ceases to be public land,
and reverts to the same position as
if it had been settled by the pro-
vincial Government in the ordinary
course of its administration. That
was apparently the consideration
which led to the insertion, in the
agreement of 1883, of the con-
dition that the Government of
Canada should oﬁer the land for
sale, on liberal terms, with all con-
venient speed.
“ According to the law of Eng-
Ar'r.-GEN. or‘
BRITISH Co-
LUMBIA ‘v.
ATT.-G'EN. or
CANADA.
522 B.N.A. ACT, s. lO9.-CROWN’S RIGHT TO GOLD.
ATT.-GEN. or
Bnrrrsn Co-
LUMBIA v.
ATT.-GEN. or
CANADA.
land, gold and silver mines, until
they have been aptly severed from
the title of the Crown, and vested
in a subject, are not regarded as
partes solz', or as incidents of the
land in which they are found.
Not only so, but the right of the
Crown to land, and the baser
metals which it contains, stands
upon a different title from that
to which its right to the precious
metals must be ascribed. In the
Mines Case (1 Plowden, 336, ‘ First’
and ‘f ’), all the justices and
barons agreed that, in the case of the
baser metals, no prerogative is given
to the Crown; whereas ‘ all mines
of gold and silver within the realm,
whether they be“ lIl'lSlIE‘lﬁdldS of the
Queen or of subjects, belong to the
Queen by prerogative, with liberty
to dig and carry away the ores
thereof, and with other such inci-
dents thereto as are necessary to
be used for the getting of the ore.’
In British Columbia the right to
public lands, and the right to
precious metals in all provincial
lands, whether public or private,
still rest upon titles as distinct as
if the Crown had never parted with
its beneﬁcial interests; and the
Crown assigned these beneﬁcial
interests to the Government of the
province, in order that they might
be appropriated to the same State
purposes to which they would have
been applicable, if they had re-
mained in the possession of the
Crown. Although the provincial
Government has now the disposal
of all revenues derived from pre-
rogative rights connected with land
or minerals in British Columbia,
these revenues differ in legal
quality from the ordinary terri-
torial revenues of the Crown. It
therefore appears to their Lordships
that a conveyance by the province
of ' public lands,’ which is, in sub-
stance, an assignment of its right
to appropriate the territorial reve-
nues arising from such lands, does
not imply any transfer of its in-
terest in revenues arising from the
prerogative rights of the Crown.
“ The grounds upon which the
majority of the learned judges of the
Supreme Court decided in favour
of the Dominion are brieﬂy and
forcibly stated in the judgment
delivered by Sir William Ritchie,
C.J. They were of opinion that
the rule of construction which ex-
cepts the precious metals from a
conveyance of land by the Crown
to a subject has no application to
the provisions of the eleventh
Article of Union, which they re-
garded as a statutory compact
between two constitutional Govern-
ments. The learned Chief Justice
said : ‘ This was a statutory arrange-
ment between the Government of
the Dominion and the Government
of British Columbia, in settlement
of a constitutional question between
the two Governments, or rather
giving effect to and carrying out
the constitutional compact under
which British Columbia became
part and parcel of the Dominion
of Canada, and, as a part of that
arrangement, the Government of
British Columbia relinquished to
the Dominion of Canada, as repre-
sented by the Governor-General,
all right to certain public lands
belonging to the Crown, or to the
province of British Columbia, as
represented by the Lieutenant-
Governor.’
“ If the eleventh Article of
Union had been an independent
treaty between the two Govern-
ments, which obviously contem-
plated the cession by the province
of all its interests in the land
forming the railway belt, royal as
well as territorial, to the Dominion
Government, the conclusion of the
court below would have been in-
evitable. But their Lordships are
unable to regard its provisions in
that light. The eleventh Article
does not appear to them to consti-
tute a separate and independent
compact. It is part of a general
statutory arrangement, of which
the leading enactment is, that, on
its admission to the Federal Union,
British Columbia shall retain all
B.N.A. ACT, s. 109.-MERGERS cAsE FOLLOWED. 523
the rights and interests assigned to
it by the provisions of the British
North America Act, 1867, which
govern the distribution of provin-
cial property and revenues between
the province and the Dominion;
the eleventh Article being nothing
more than an exception from these
provisions. The Article in ques-
tion does not profess to deal with
java reg/la ,- it merely embodies the
terms of a commercial transaction,
by which the one Government un-
dertook to make a railway, and the
other to give a subsidy, by assign-
ing part of its territorial revenues.
“Their Lordships do not think
it admits of doubt, and it was not
disputed at the bar, that sec. 109
of the British North America Act
must now be read as if British
Columbia was one of the provinces
therein enumerated. With that
alteration, it enacts that ‘all lands,
mines, minerals, and royalties,’
which belonged to British C0-
lumbia at the time of the Union,
shall for the future belong to that
province and not to the Dominion.
In order to construe the exception
from that enactment, which is
created by the eleventh Article of
Union, it is necessary to ascertain
what is comprehended in each of
the words of the enumeration, and
particularly in the word ‘ royalties.’
The scope and meaning of that
term, as it occurs in sec. 109,
underwent careful consideration in
the case of Attorney-General of
Ontario v. Mercer (8 App. Cas.
767 ; see above, p. 510.), which was
appealed to this Board by the
Dominion Government in name of
the defendant Mercer. In that
case their Lordships were of opinion
that the mention of ‘ mines and
minerals ’ in the context was not
enough to deprive the word ‘ royal-
ties ’ of what would otherwise have
been its proper force (8 App. Cas.
777). The Earl of Selborne, in
delivering the judgment of the
Board, said (8 App. Cas. 778, and
above, p. 5 17) : ‘ It appears, however,
to their Lordships to be a fallacy
to assume that because the word
“royalties” in this context would
not be regarded as inoﬂicious or
insensible, if it were regarded as
having reference to mines and min-
erals, it ought, therefore, to be
limited to those subjects. They
see no reason why it should not
have its primary and appropriate
sense, as to (at all events) all
the subjects with which it is here
found associated—lands as well as
mines and minerals. Even as to
mines and minerals, it here neces-
sarily signiﬁes rights belonging to
the Crown jm'e coronae.’
“It is not necessary, for the
purposes of this appeal, to consider
whether the expression ‘ royalties,’
as used in sec. 109, includes java
regalz'a other than those connected
with lands, mines, and minerals.
Attorney-General of Ontario v.
Mercer is an authority to the
eﬁect that, within the meaning of
the clause, the word ‘royalties ’
comprehends, at least, all revenues
arising from the prerogative rights
of the Crown in connection with
‘lands,’ ‘mines,’ and ‘minerals.’
The exception created by the
eleventh Article of Union, from
the rights specially assigned to the
province by sec. 109, is of ‘ lands’
merely. The expression ‘lands’
in that Article admittedly carries
with it the baser metals, that is to
say, ‘ mines ’ and ‘ minerals,’ in the
sense of sec. 109. Mines and
minerals, in that sense, are inci-
dents of land, and, as such, have
been invariably granted, in ac-
cordance with the uniform course
of provincial legislation, to settlers
who purchased land in British
Columbia. But jm'a regalz'a are
not accessories of land; and their
Lordships are of opinion that the
rights to which the Dominion
Government became entitled under
the eleventh Article did not, to any
extent, derogate from the provin-
cial right to ‘royalties’ connected
with mines and minerals, under
sec. 109 of the British North
America Act.
ATT.-GEN. or
BRITISH Co—
LUMBIA v.
ATT.-GEN. or
CANADA.
524 B.N.A. ACT, s. Ion-RIGHT TO WASTE SLOPES.
ATT.-GEN. OF
BRITISH Co-
LUMBIA c.
ATT.-GEN. OF
CANADA.
NIAGARA FALLs
PARK '0.
HOWARD.
“Their Lordships do not doubt
that the eleventh Article of Union
might have been so expressed as to
show, by necessary implication,
that some or all of the royalties
dealt with by sec. 109 were to pass
to the Dominion along with the
lands constituting the railway belt.
But there is not a single expression
in the context which is applicable
to gold or gold-mining rights.
On the other hand, the whole terms
of the Articles of Union, as well
as of the subsequent agreement of
1883, appear to their Lordships to
point to the conclusion that the
high contracting parties were deal-
ing with public lands, in so far as
these were available for the ordi-
nary purposes of settlement, and
had either excluded gold mines
from their arrangements, or had
them not in contemplation. It is
right, however, to notice that the
learned Chief Justice refers to a
minute of the Council of British
Columbia containing the recom-
mendation of a committee, which
was communicated to the Govern-
ment of Canada, as evidencing an
understanding on the part of the
provincial Government, that mines
of gold and other precious metals
were to be conveyed along with
the belt lands. The passage upon
which the learned Chief Justice
relies is in these terms: ‘ That it
be one of the conditions that the
Dominion Government, in dealing
with lands in the province, shall
establish a land system equally as
liberal, both as to mining and
agricultural industries, as that in
force in this province at the pre-
sent time, and that no delay shall
take place in throwing open the
land for settlement.’ The words
‘mining and agricultural indus-
tries,’ taken per se, might be of
dubious import, because they would
not disclose whether gold digging
was referred to as as one of the
mining industries. But these in-
dustries are described as an inte-
gral part of the ‘land system ’:
and, when it is considered that at
the date of the report the system
of land settlement in the province,
which included the baser metals,
was regulated by special statute,
and that gold mines, which were
not given off to settlers, were not
treated as part of that system, but
were the subject of separate legis-
lation, it becomes apparent that
the committee did not make any
reference to gold in their recom-
mendation.
“ Their Lordships are for these
reasons of opinion that the judg-
ment appealed from must be re-
versed, and that it ought to be
declared that the precious metals
within the railway belt are vested
in the Crown, subject to the con-
trol and disposal of the Govern-
ment of British Columbia, and
they will humbly advise Her
Majesty to that effect. There
will be no order as to costs.”
In NIAGARA FALLS PARK 2).
HOWARD, Dec. 12, 1892, Boyd,
Ch., 23 O. R. 1, decided that a
part of the slopes from the top
of the bank to the water edge,
on the west side of the Niagara
river, from the Railway Suspen-
sion Bridge to the ferry at Clifton
House, was waste land of the
Crown held for public purposes.
Secondly, that there was no evi- '
dence this slope or “ chain reserve ”
was ever used, or controlled, or set
apart for military purposes; and,
thirdly, this being the result of the
evidence, the portion in question
vested, not in the Dominion, but in
the province of Ontario. The ques-
tion was raised by the Commis-
sioners of the Queen Victoria
Niagara Falls Park and the At-
torney-General of Ontario against
Howard and another to try the
right to the piece of land in ques-
tion. Howard had obtained in
1887 from the Dominion Govern-
ment a lease of the land as forming
part of the military or ordnance
lands. Subsequently the Commis-
sioners had obtained a grant of the
same land from the Ontario Go-
B.N.A. ACT, s. 109—GRANT SILENT AS TO GOLD. 525
vernment as being part of the un-
surveyed lands of the old province
of Canada, which were now vested
in the province of Ontario.
Boyd, Ch., in effect, found that
the land along the top of the bank
for a distance of 66 feet from the
brink was what was known as the
“ chain reserve ” or “ ordnance re-
serve,” said to stretch from N ia-
gara' to Fort Erie, and that the
“chain reserve” did not include
the slope. The river being the
dividing line between the United
States and Canada, the high land
was retained for defensive purposes,
but not the slope; and, therefore,
the latter remained outside the
military land and public waste land
until vested in the Commissioners
of the Park.
In WOOLLEY v. ATT.-GEN. or
VICTORIA, Feb. 6, 1877, 2 App.
Cas. 163; 46 L. J. P. C. 18;
36 L. T. 121, it was contended
that the law of England as to the
prerogative right of the Crown to
gold and silver found in mines
will not pass under a grant of land
from the Crown unless by apt and
precise words showing that inten-
tion must be held to have been
introduced as part of the common
law of England into the colony of
Victoria, but it was contended
that a grant, dated 1853 (before
18 86 19 Vict. c. 55.), under 5 & 6
Vict. c. 36., which by sec. 5 em-
powered the Governors of the
Australian colonies, in the name of
Her Majesty, to convey in fee
simple to a purchaser any waste
land of the Crown in such colonies,
had the eﬁect of passing to the
purchaser these precious metals.
The Judicial Committee held the
Act had no such effect. Sir J. W.
Colvile, delivering judgment [there
being also present Lord Blackburn,
Sir B. Peacock, Sir M. E. Smith,
and Sir R. Collier], said: “The
object of the Act 5 8L 6 Vict.
c. 36. was to empower the Governor
of the colony to deal with the
waste lands of the Crown in the
colony by putting them up for
sale, under certain conditions, by
public auction. The Crown seems
still to have retained a certain
interest in and power of disposition
over the proceeds to be realised by
the sales; for the 19th section
provides that, ‘ subject to the
charge above mentioned,’ meaning
the charge mentioned in the 18th
section, for the expenses of sur-
veying and the like, ‘the gross
proceeds of the sale of the waste
lands of the Crown in each of the
colonies shall be appropriated and
applied to the public service of the
said colonies respectively, in such
manner as Her Majesty or the
Commissioners of Her Majesty’s
Treasury, or any three of them,
shall from time to time direct.’ It
is expressly provided that one
half at least shall be applied to the
purpose of emigration ; but, subject
to that provision, it would seem
that there remained in the Crown,
as represented by the Home Go—
vernment, the power of directing
the application of the proceeds to
be realised by the waste lands.
There is no reference to the rights
of the Crown in the precious
metals to be found under the soil;
and it is a recognised principle of
the construction of statutes that
the prerogative rights of the Crown
can be affected only by express
words or necessary implication.”
In MAYOR or EssENDoN 'u.
BLACKWOOD (Victoria Racing
Club), May 14, 1877, 2 App. Cas.
574; 46 L. J. P. C. 98; 36 L. T.
625, the Judicial Committee de~
cided land used for “public pur-
poses ” did not include ground set
apart for a public racecourse. It
was a claim for exemption from
taxation, and the Board held that to
bring the case within the exemption
it must be shown that the land was
used solely for public purposes,
without any beneﬁcial occupation
by individuals, which there was in
this case.
WOOLLEY v.
Ara-GEN. or
VICTORIA.
MAYOR or
Essnunon v.
BLACKWOOD.
526
B.N.A. ACT, s. 111.—PROVINCIAL DEBTS.
Assets con-
nected with
provincial
debts.
Canada to be
liable for pro-
viucial debts.
THE QUEEN v.
BELLEAU.
110. All assets connected with such portions of the
public debt of each province as are assumed by that
province shall belong to that province.
111. Canada ehen be liable for the debts and liabili-
ties of each province existing at the Union.1
1 By this section the Dominion
became responsible for the debts
of each province. In THE QUEEN
v. BELLEAU,111 S. C. 10 Feb. 1881,
7 S. C. R. 53, Fournier, Henry,
and Taschereau, J J ., Sir W.
Ritchie, C.J., and Gwynne, J .,dis-
senting, afﬁrming Fournier, J ., in
the Exchequer Court, held the
Dominion were liable for certain
debentures (and interest from the
date of the petition of right), issued
under the authority of the pro-
vince of Canada Act, 16 Vict.
c. 235., by the Trustees of the
Quebec Turnpike Roads. But this
decision was reversed by the
Judicial Committee, June 20,
1882, 7 App. Gas. 473, on the
ground that whatever construction
was to be put on the province pay~
ing off in 1850-3 debentures of
£25,000 and £8,885, which had
been issued under provisions of an
ordinance, 4 Vict. c. 17., and an
Act of 8 Vict. c. 55., the deben-
tures in question were issued under
the 16 Vict. c. 235., and by that
Act were given no provincial
guaranty, though they had a pre-
ference given to them over all that
had such guaranty. It appeared
that in 1795 it was provided by
36 Geo. 3. c. 9., that all occu-
piers of lands adjoining the king’s
highway should keep the same for
the breadth of their lands in good
repair. In 1841 an ordinance,
4 Vict. c. 17 ., was passed, and pro-
vided that trustees might be ap-
pointed for keeping in repair cer-
tain roads leading into the city of
Quebec, and might raise a fund for
that purpose on the security of the
tolls [see sec. 21 in judgment be-
low]. By sec. 27 of the ordinance,
if the money in the hands of the
trustees was insufficient to pay the
interest on the debentures, the
Governor of the province might
by his warrant order the Receiver-
General to pay it. By 8 Vict.
c. 45. £8,882 in debentures was
raised, and these debentures for
£25,000 and £8,882 were paid off
(1850 to 1853) out of the general
revenue of the province. Then by
16 Vict. (1853) c. 235. the powers
of the trustees were extended to
other roads, and they were given
power to issue debentures to a
certain amount. Sec. 7 contained
a proviso that the interest was
not to exceed six per cent, and
no money was to be advanced out
of provincial funds for the payment
of the said interest, and all deben-
tures which were issued under the
Act, so far as related to the interest
payable, were to have a privilege
of priority of lien upon all the tolls
and other moneys at the disposal
of the trustees, in preference to the
interest payable upon all deben-
tures which had been issued under
the provincial guaranty. These
Acts were passed through the
legislature of the province of
Canada by some one of the re-
sponsible ministers of the provincial
Government. Following on this
Act the trustees raised in deben-
tures £30,000 and £40,000. Sec.
13 contained also: “Provided
always that the province shall not
guarantee or be liable for the prin-
cipal or interest of any debentures
issued under this Act, nor shall
any money be advanced or paid
therefor out of the provincial
funds.” The respondents repre-
B.N.A. AoT, s. 111.—LIAB. FOR DEBENTURES. 527
sented holders of the above deben-
tures, issued for the loans of liable to pay the principal and BELLEAU-
the late province of Canada was THE QUEEN v.
£30,000 and £40,000. They con-
tended that by secs. 111, 112, and
113 of the B. N. A. Act, all debts
and liabilities existing at the
Union, whether due in connection
with turnpike trusts or of any
other kind, were imposed on the
Dominion Government. Secondly,
that the province by paying off
£25,000 and £8,885 in 1850—53,
showed that the province considered
they were liable for the principal.
The appellants, representing the
Dominion, contended that the turn-
pike trustees were never agents of
the Crown. They were trustees
with such powers in the public in-
terest as are vested in a corpora-
tion. That the effect of 3, 10, 18,
21, 22, 23, 26, and 27 sections of
the ordinance, 4 Vict. c. 17., was to
create a trust for the working and
repairing of roads, and to authorize
such trusts to borrow on the
security of the tolls for those pur-
poses, but not to impose any lia-
bility whatever in respect of sums
so borrowed by the trust in the
province. Leave to appeal was
granted 12 Nov. 1881, as the ques-
tion involved other turnpike trusts
to the extent of £200,000, and the
question was of public interest to
the taxpayer of the Dominion.
The respondents were allowed to
lodge a cross appeal against that
part of the judgment giving in-
terest only from the period of
lodging the petition of right.
Sir James Hannen said [there
being also present Sir B. Peacock,
Sir M. E. Smith, Sir R. Collier,
and Sir R. Couch] :—
“ This is a petition of right
against the Crown by the holders
of certain debentures issued by
‘ The Trustees of the Quebec Turn-
pike Roads,’ for payment of the
principal and interest of their
debentures.
“ N 0 question has been raised as
to the form in which the suppliants
seek to have the question in dis-
pute determined, which is, whether
interest of the debentures sued on.
By the British North America
Act, 1867 , the debts and liabilities
of each province existing at the
Union were transferred to the
Dominion of Canada, and it is
conceded by the Crown that if the
debentures created a debt on the
part of the province, the suppliants
are entitled to a decision in their
favour.
“The debentures purport on
their face to be, and were in fact,
issued under the authority of an
Act of Parliament of the province of
Canada (16 Vict. c. 235.), intituled,
‘An Act to authorize the trustees
of the Quebec Turnpike Roads to
issue debentures to a certain
amount, and to place certain roads
under their control.’
“ The debentures are in form
certiﬁcates by the trustees, that
under the authority of the said Act
there had been borrowed and re-
ceived from the holder a certain
sum bearing interest from the date
of the certiﬁcate, which sum was
reimbursable to the holder or bearer
on a (lay named.
“ The Act, after reciting that it
was expedient to extend the pro-
visions of a certain ordinance
(4 Vict. c. 17.) to certain roads
other than those to which they
then extended, and to such further
improvements through the trustees
of the roads established under the
said ordinance, and that in order
to the construction and completion
of the roads then undertaken by
the trustees, it was expedient to
provide for the raising of the
necessary funds by the issue of
debentures by the said trustees,
enacted that the provisions of the
said ordinance, and the provisions
of all Acts and statutes in force
amending the said ordinance, and
the powers of the trustees appointed
under the said ordinance, should
extend or apply to the road in the
said Act mentioned, in the same
manner as if the said roads had
528
B.N.A. ACT, S. 111.—TOLLS As SECURITY.’
THE QUEEN v.
BELLEAU.
been mentioned and described in
the said ordinance.
“By the 2nd and subsequent
sections down to and inclusive of
the 6th, the trustees were re-
quired to execute certain works,
and were authorized to execute
others, and the roads are enume-
rated to which the provisions of
the ordinance were to be extended.
“ By the 7 th section it is enacted
that, in order to the making and
completion of certain roads de-
scribed in a previous Act, and the
making of the various improve-
ments above mentioned, ‘it should
be lawful for the trustees to raise
by loan a sum not exceeding
£30,000 currency, and this loan
and the debentures which shall be
issued to effect the same, and all
other matters having reference to
the said loan, shall be subject to
the provisions of the ordinance
above cited with respect to the loan
authorized under it.’
“ This is followed by a proviso,
which it will be necessary to refer to
hereafter. Thus we are obliged, in
order to see what were the obli-
gations created by the debentures
issued under the 16 Vict. c. 235. and
now sued on, to examine the provi-
sions of the ordinance, 4 Vict. c. 17 .
“By that ordinance the Governor
was empowered to appoint not less
than ﬁve nor more than nine per-
sons to be, and who and their suc-
cessors should be, trustees for the
purpose of opening, making, and
keeping in repair the roads herein-
after speciﬁed. By sec. 3 it was
enacted that the said trustees
might, by the name of The Trustees
of the Quebec Turnpike Roads, sue
and be sued, and might acquire
property and estates, moveable and
immoveable, which being so acquir-
ed should be vested in Her Majesty
for the public use of the province,
subject to the management of the
said trustees for the purposes of the
ordinance.
“ By the 18th section it was
enacted that the roads should be
and remain under the exclusive
management, charge, and control
of the said trustees, and the tolls
thereon should be applied solely
to the necessary expenses of the
management, making, and repairing
of the said roads, and the payment
of the interest on the principal of
the debentures thereinafter men-
tioned.
“The 21st section is the most
important, and is as follows :—
‘ 21. And be it further ordained
and enacted, that it shall be lawful
for the said trustees, as soon after
the passing of this ordinance as
may be expedient, to raise by way
of loan, on the credit and security
of the tolls hereby authorized to be
imposed, and of other moneys
which may come into the possession
and be at the disposal of the said
trustees, under and by virtue of
this ordinance, and not to be paid
out of or chargeable against the
general revenue of this province,
any sum or sums of money not
exceeding in the whole £25,000
currency.’
“Unless, therefore, it can be
shown that some qualiﬁcation of
these words is to be found ex-
pressed or implied in the ordinance
or the statutes amending it, it is
clear that the suppliants lent their
money on the credit and security of
the tolls, ‘and not to be paid out
of or chargeable against the reve-
nues of the province.’
“Their contention is that, not-
withstanding these words, the pro-
vince was bound to pay the deben-
tures. The trustees, it is said, were
the agents of the province, and in
that character they borrowed money
for the province to be applied to
provincial purposes; thus the pro-
vince became the principal debtor,
and the tolls are to be regarded
only as a ﬁrst source of repayment
of the debt of the province. These
general propositions cannot aiford
assistance in the consideration of
the question we have to determine.
It is of no avail to call the trustees
agents of the province, if it is ad-
mitted, as it must be, that the
B.N.A. ACT, S. 111.—LIMITED AGENTS. 5229
mentioned. It is, however, evident THE QUEEN v.
extent and limits of their agency
that it was for the very purpose of BELLEAU'
must be sought in the Act of the
legislature which gives them exist-
ence. To make the trustees the
agents of the province, it must be
shown that by their constitution
they have authority to act for the
province, and to create obligations
binding upon it; but this has not
been shown. The trustees are a
corporate body, the absolute crea-
tion of the legislature, and their
rights, duties, and powers are ex-
clusively contained and deﬁned in
the instrument by which they were
incorporated. Such corporations
are well known to the law as well
of this country as of Canada.
They are created for a great variety
of purposes, some of local, others
of general importance. In the
present instance the corporation is
created for the local object of im-
proving the roads round Quebec,
and to this end the trustees are
empowered to borrow money on
certain speciﬁc terms. for the pur-
poses of the trust as deﬁned in the
ordinance. The beneﬁt which the
province may be supposed to de-
rive from the expenditure of the
money borrowed, no more imposes
a liability on the province to repay
it than it imposes such a liability
on the adjoining landowners, the
value of whose property may be in-
creased by the construction of the
roads authorized to be made.
“ In order to ascertain the
powers of the trustees, we must ex-
amine the provisions of the ordi-
nance.
“ By the 21st section it appears
that the loan is to be raised on the
credit and security of the tolls
authorized to be imposed, and other
moneys which may come into their
possession, and be at the disposal
of the trustees under and by virtue
of the ordinance. On this it is
observed that it does not say the
‘ sole’ credit and security of the
tolls, 850., but, in the absence of
any other credit or security deﬁned
by the ordinance, those only can
be looked to which are expressly
S 2340.
guarding against the possibility of
the present claim that, in addition
to the aﬁ‘irmative words already
quoted, negative words were intro-
duced that the loan is ‘not to be
paid out of or to be chargeable
against the general revenue of the
provmce.’
“It does not appear possible to
use language more carefully framed
to exclude from the minds of pro-
posed lenders the idea that they
were in any case to look to the
province for repayment of the
moneys advanced by them.
“ The only criticism which has
been oﬁered upon this passage is
that it does not negative the con-
tention that the loan is to be paid
out of revenue other than the
‘general’ revenue of the province;
but no other revenue can be
suggested.
“ The Government has no power
to raise or apply revenue in any
other way than is authorized by
law. It is obvious that revenue
already appropriated to particular
objects cannot be diverted from
them, and when it is forbidden to
apply the unappropriated or general
revenue to the payment of the loan,
all possible sources of reimburse-
ment out of the revenue of the
province are excluded. It is a
contradiction in terms to say that
that which the province is by ex-
press enactment forbidden to pay
out of its revenue, remains, never-
theless, a liability of the province.
“ The 26th section enacts that it
shall be lawful for the Governor,
if he shall deem it expedient, at
any time within three years from
the passing of the ordinance, and
not afterwards, out of any unappro-
priated public moneys in his hands,
to purchase for the public uses of
the province, and from the said
trustees, debentures to an amount
not exceeding £10,000 currency,
the interest and principal of and
on which shall be paid to the
Receiver-General by the said trus~
LL
530
RNA. ACT, s. 111.—AUTHORIZING LOANS.
THE QUEEN v.
BELLEAU.
tees, in the same manner and under
the same provisions as are provided
with regard to such payments to
any lawful holder of such deben-
tures. Thus the Governor is
enabled to purchase, on behalf of
1he province, debentures, and so to
become the creditor of the trustees,
but this power is limited to three
years.
“This is wholly inconsistent
with the idea that the province was
already the debtor for the whole
amount of the loan. The. province
cannot stand in the relation both of
debtor and creditor to itself; and
if the process be regarded as a
means of redeeming the debt of the
province, no reason can be sug-
gested why this power of purchas-
ing debentures should be limited in
amount, and to a period of three
years.
“The 23rd section enacts that
the debentures shall bear interest,
and concludes thus :——‘ Such in-
terest to be paid out of the tolls
upon the roads, or out of any other
moneys at the disposal of the trus-
tees for the purposes of this ordi-
nancef
“ Here there are not negative
words excluding the liability of the
province, but the obligation to pay
interest primarily follows that of
paying the principal, and it lies
upon the party asserting that it is
imposed elsewhere to establish it.
“ So far from there being any-
thing in the ordinance to support
the contention that the interest is
to be paid by the province, every-
thing on the subject of interest
tends strongly in the opposite
direction. a
“ By the 27th section it is enacted
that all arrears of interest shall be
- paid before any part of the princi-
pal sum, ‘ and if the deﬁciency be
such that the funds then at the
disposal of the trustees shall not
be sufﬁcient to pay such arrears,
it shall be lawful for the Governor,
for the time being, by warrant
under his hand, to authorize the
Receiver-General to advance to
the trustees, out of any unappro-
priated moneys in his hands, such
sum of money as may, with the
funds then at the disposal of the
trustees, be sufficient to pay such
arrears of interest as aforesaid, and
the amount so advanced shall be
repaid by the trustees to the
Receiver-General.’
“ This provision, empowering the
Governor-General .to authorize a
loan tothe ‘trustees to enable them
to pay interest, is inconsistent with
the idea that the province was
already under an obligation to pay
the interest.
“ If then the case had rested upon
the effect of the ordinance alone,
their Lordships are of opinion that
no liability on the part of the pro-
vince for payment of either the
principal or interest could be esta-
blished; but it has been argued that
by subsequent legislation and con-
duct the province of Canada has
recognised its liability to pay the
principal and interest of the deben-
tures issued under the authority of
the ordinance of 4 Vict. c. 17.
“ The ﬁrst Act which is relied on
is 12 Vict. c. 5., by which it was
provided that it ‘ should be lawful
for the Governor to redeem or pur-
chase on account of the province all
or any of the debentures constitu-
ting the public debt of the province
of Canada, or such or any of the
debentures issued by commissioners
or other public officers under the
authority of the Legislature of
Canada, or of the late province of
Canada, the interest or principal of
which debentures is made a charge
on the consolidated revenue fund of
the province.’ It is said that the
Government, under the authority of
this Act, paid off the debentures
issued under the ordinance.
“ It appears highly probable, as is
stated in the very able judgment of
Mr. Justice Gwynne, that the power
given to the Governor by the 27 th
section of the ordinance to advance,
by way of loan, money to the trus-
tees to pay arrears of interest, did,
in fact, lead to the idea that the
B.N.A. ACT, s. lily—GOVERNORS POWERS.
531
province was under a legal liability
to pay the interest, and it would
seem, though the manner in which
the transaction was carried out is
very obscure, that the debentures
issued under the ordinance were,
in fact, redeemed under the powers
supposed to be conferred by the
12 Vict. c. 5.
“ All that need be said upon this
subject is that, if the Governor did
suppose himself to be acting under
the authority of this statute, he
mistook his powers. The deben-
tures issued under the ordinance
did not constitute part of the public
debt of the province, and neither
the interest nor principal of them
was made a charge on the consoli-
dated revenue fund of the province.
“ But, whatever considerations
may have led to the redemption by
the Government of the debentures
issued under the ordinance, it is clear
that they cannot aﬁect the construc-
tion of the 16 Vict. c. 235., under
which the debentures now in suit
were issued.
“ The 7th section of that Act au-
thorized the trustees to raise a loan,
which ‘loan, and the debentures
which shall be issued to effect the
same, and all matters having re-
ference to the said loan, shall be
subject to the provisions of the
ordinance with respect to the loan
authorized under it ’; but this im-
portant proviso is added-.—‘ provided
nevertheless that the rate of interest
shall not exceed 6 per cent., and no
moneys shall be advanced out of the
provincial funds for the payment of
the said interest.’ Thus the power
to make advances out of provincial
funds for payment of interest which
was given by the 27th section of the
ordinance as to the debentures is-
sued under-it, and which had possi-
bly led to misconception as to the
liability of the province, is expressly
taken away by the 16 Vict. c. 235.
as to the debentures now in question.
They must, therefore, be treated as
issued not merely on the express
condition that; they werenots-to be
paid out of or chargeable against
the general revenues of the pro- THE QUEEN v.
vince, but with the further ex- BELLEAU-
press condition that no moneys
should be advanced out of provincial
funds for the payment of interest.
“And again, as though for the
purpose of guarding against the
possibility of the debenture holders
contending that the debentures is-
sued under the 16 Vict. c. 235. had
the provincial guarantee, the proviso
to the'J7th section enacts that ‘ all the
debentures which shall be issued
under this Act, so far as relates to
the interest payable thereupon, shall
have a privilege of priority of lien
upon the tolls, &c., in preference to
the interest payable upon all deben-
tures which shall have been issued
under the provincial guarantee, or
which shall hereafter be issued by
the said trustees under the provin-
cial guarantee.
“ What debentures had been or
could be issued under the provincial
guarantee does not appear; but this
at least is clear, that the debentures
issued under the Act, and now sued
on, have no provincial guarantee,
since they have a preference given
to them over all that have, and are
thus distinguished from them.
“ It remains only to consider some
general arguments which have been
advanced on behalf of the suppli-
ants. It has been urged that the
Government of the province, by
redeeming the debentures issued
under the ordinance, induced the
belief that the same course would
be pursued with regard to the de-
bentures issued under the Act 16
Vict. c. 235., and that without such
belief the debenture holders would
not have lent their money on the
security of the tolls, &c., which had
proved entirely insuﬁicient even to
pay the interest of the former loan.
Their Lordships do not desire, by
any observations, to diminish the
force of these arguments, if ad-
dressed'to the proper tribunal. It
may be that the Legislature of the
province of Canada, or that of the
Dominion, may see reason to listen
to the prayer of the suppliants to
1.1.2
532 B.N.A. ACT, s. 112.—-—LENDERS AND PROVINCE.
THE QUEEN 'v.
BELLEAU.
Debts of On-
tario and
Quebec.
Assets of On-
tario and
Quebec.
be relieved in whole or in part from
the loss of their money, which has
been expended for the beneﬁt of the
province. But this tribunal cannot
allow itself to be inﬂuenced by
feelings of sympathy with the in-
dividuals affected. Its duty is
limited to expressing its opinion
upon the legal question submitted
to it, and upon that their Lordships
entertain no doubt.
“ Another argument of a similar
kind has been based upon a sub-
sequent statute of the province of
Canada, 20 Vict. c. 125., by which
the Quebec turnpike roads were
divided into two parts, and by which
it is contended some of the deben-
ture holders have been deprived of
a part of the special fund created
for the payment of their loan. As-
suming the correctness of this con-
tention, it might have been made a
ground for opposing the later
enactment, or it may now be used
by way of appeal to the legislature
for redress, but it cannot supply a
reason for putting a construction
on the obligations created by the
16 Vict. c. 235., different from
that which must have been put
upon them immediately after the
passing of that statute.
“Some minor points have been
relied on by the learned judges
who have held that the suppliants
were entitled to succeed on this
petition. It is from no disrespect
to those learned judges that these
points have not been particularly
dealt with, but from a belief
that, however they may tend to
fortify the general argument in
support of which they are used,
they do not by themselves aﬁord a
basis upon which their Lordships’
judgment can be founded.
“ For these reasons, their Lord-
ships are of opinion that the judg-
ment of the Exchequer Court of
Canada, as well as the judgment
of the Supreme Court conﬁrming
the judgment of the Exchequer
Court so far as it decided that the
respondents were entitled to the
principal of their debentures, but
varying the same by declaring that
the respondents were entitled, in
addition to the principal, to interest
from the date of ﬁling the petition
of right, are erroneous, and their
Lordships will humbly advise Her
Majesty that they should be re-
versed and judgment entered for
the Crown.
“ Their Lordships are further of
opinion, and will advise Her Ma-
jesty, that the cross appeal of the
respondents asserting the liability
of the Crown to pay interest on
the debentures from the date of
their falling due should be dis-
missed, and that the costs of the
appeal and of the cross appeal and
of the proceedings in the courts
below should be paid by the re-
spondents.
112. Ontario and Quebec conjointly shall be liable
to Canada for the amount (if any) by which the debt
of the province of Canada exceeds at the Union
sixty-two million ﬁve hundred thousand dollars, and
shall be charged with interest at the rate of ﬁve per
centum per annum thereon.
113. The assets enumerated in the Fourth Schedule
to this Act belonging at the Union to the province of
Canada shall be the property of Ontario and Quebec
conj ointly.
B.N.A. ACT, s. 114.—DEBTS or PRovINoEs. 533
114-. Nova Scotia shall be liable to Canada for the
amount (if any) by which its public debt exceeds at
the Union eight million dollars, and shall be charged
with interest at the rate of five per centum per annum
thereon.
115. New Brunswick shall be liable to Canada for
the amount (if any) by which its public debt exceeds
at the Union seven million dollars, and shall be charged
with interest at the rate of ﬁve per centum per annum
thereon.
116. In case the public debt of Nova Scotia and
New Brunswick do not at the Union amount to
eight million and seven million dollars respectively,
they shall respectively receive, by half-yearly payments
in advance from the Government of Canada, interest
at ﬁve per centum per annum on the difference
between the actual amounts of their respective debts
and such stipulated amounts.
117. The several provinces shall retain all their
respective public property not otherwise disposed of in
this Act, subject to the right of Canada to assume any
lands or public property required for fortiﬁcations or
for the defence of the country.1
above cases, and in the latter
case by Earl Selborne, and com-
1 Each province is entitled to re-
tain its own waste lands: St.
Catherine’s Milling and Lumber
Company rv. The Queen, Dec. 12
1888, 14 App. Cas. 46, and ante,
p. 94; Att.~Gen. of Ontario 12.
Mercer, July 18, 1883, 8 App. Cas.
767; 52 L. P. C. 84; 49 L. T.
312; and ante, p. 510. See exami-
nation of secs. 102, 109, and 117, by
Lord Watson in the ﬁrst of the
pare secs. 109, 126, and 125.
Secs. 102 and 117 are reconciled
by holding that forfeitures and
escheats fall into the treasury of
the provinces, and not into that
of the Dominion: Att.-Gen. of
Quebec '0. Att.-Gen. of Dominion,
1876, 2 Mon. Q. B. 236, and
ante, p. 500.
_ 118, The following sums shall be paid yearly by
Debt of Nova
Scotia.
Debt of New
Brunswick.
Payment of in—
terest to Nova
Scotia and New
Brunswick.
Provincial
public pro-
perty.
Grants to pro-
vinces.
534 nue. ACT, s. 118.—PAYMENTS To PROVINGES.
Canada to the several provinces for the support of their
governments and legislatures :—

Dollars.
Ontdric - - - - 80,000
Quebec - - - - 70,000
Nova Scotia - - - - 60,000
New Brunswick - - - 50,000
260,000 ;
and an annual grant in aid of each province shall be
made, equal to eighty cents per head of the population
as ascertained by the census of one thousand eight
hundred and sixty-one, and in the case of Nova Scotia
and New Brunswick, by each subsequent decennial
census until the population of each of those two pro-
vinces amounts to four hundred thousand souls, at
which rate such grant shall thereafter remain. Such
grants shall be in full settlement of all future demands
on Canada, and shall be paid half-yearly in advance to
each province; but the Government of Canada shall
deduct from such grants, as against any province, all
sums chargeable as interest- on the public debt of that
province in excess of the several amounts stipulated in
this Act.
Zuggfvrgggl 119. New Brunswick shall receive by half-yearly
wick. payments in advance from Canada for the period of
ten years from the Union an additional allowance of
sixty-three thousand dollars per annum; but as long
as the public debt of that province remains under
seven million dollars, a deduction equal to the interest
at ﬁve per centum per annum on such deﬁciency shall
be made from that allowance of sixty-three thousand
dollars.
of pay 120, All payments to be made under this Act, or
' in discharge of liabilities created under any Act of the
provinces of Canada, Nova Scot/id, and New Brunswick
respectively, and assumed by Canada, shall, until the
Parliament of Canada otherwise directs, be made in
B.N.A. AcT, s. 12I-FaEEDoM or TRANSIT.
535
such form and manner as may from time to time be
ordered by the Governor-General in Council.
' 121. All articles of the growth, produce, or manu-
facture of any one of the provinces shall, from and
after the Union, be admitted free into each of the
other provinces.
122. The customs and excise laws of each province
shall, subject to the provisions of this Act, continue in
force until altered by the Parliament of Canada.
123. Where customs
duties are,
at the Union,
leviable on any goods, wares, or merchandises in any
two provinces, those goods, wares,- and merchandises
may, from and after the Union, be imported from one
of those provinces into the other of them on proof of
payment of the customs duty leviable thereon in the
province of exportation, and on payment . of such
further amount (if any) of customs duty as is leviable
thereon in the province of importation. '
124,-, Nothing in this Act shall aifect the right of
New Brunswick to levy the lumber dues provided in
chapter ﬁfteen of title three of the Revised Statutes
of New Brunswick, or in any Act amending that Act
before’ or after the Union, and not increasing the
amount of such dues; but the lumber of any of the
provinces other than New Brunswick shall ‘not be
subject to such dues.1
1 See Treaty of Washington, 1872, arts. 30, 31, 33; Dom. Act,
36 Vict. c. 41.
125. No lands or property belonging to Canada or
any province shall be liable to taxation.1
' 1 No lands belonging to Canada
or any province shall be liable to
taxation. Here public lands must
be intended. They evidently mean
lands which were, at the time of
the Union, in some sense pablz'cz'
jaris, and’ in this respect they re-
ceive illustration from another
section (117) ; see' also the corres-
ponding section, 125, and sec. 109,
where equivalent words are used.
Earl Selborne in Att.-Gen. of
Ontario v. Mercer, July 18, 1883,
8' App. Cas. 767; 52 L. J. P. C. 84;
49 L. T. 312; and ante, p. 516:
Leprohon v. City of Ottawa, 40
U. C. Q. B. 478; 2 O. A. R.
522.
Canadian ma-
nufactures, &c.
Continuance of
customs and
excise laws.
Exportation
and importation
as between two
provinces.
Lumber dues
In New Bruns-
wick.
Exemption of
public lands,
&c.
536 B.N.A. Aer, s. 126.—CONTRAST WITH 9. 102‘.
Provincial con- ‘
solidated re-
venue fund.
Qom'r v. REG.
Arm-Gnu. or
ONTARIO ‘v.
MERCER.
126. Such portions of the duties and revenues over
which the respective Legislatures of Canada, Nova
Scotia, and New Brunswick had, before the Union,
power of appropriation as are by this Act reserved
to the respective Governments or Legislatures of the
Provinces, and all duties and revenues raised by them
in accordance with the special powers conferred upon
them by this Act, shall in each Province form one
consolidated Revenue Fund, to be appropriated for the
Public Service of the province.1
1 Reed 21. Mousseau, 8 S. C. R.
408.
This embraces provincial reve-
nues other than those arising from
territorial sources, and includes all
duties and revenues raised by the
provinces in accordance with the
provisions of the Act, and favours
the right of the Crown for the
beneﬁt of the province, because it
describes the interest of the pro-
vinces as a right of appropriation
to the public service; and seeing
the successive decisions of the
Judicial Committee, Att.-Gen. of
Ontario 22. Mercer, 8 App. Cas. 767 ;
St. Catherine’s Milling and Lum-
ber Co. v. The Queen, 14 App. Cas.
46; Att.-Gen. of British Columbia
/0. Att.-Gen. of Canada, 14 App.
Cas. 295, in the case of territorial
revenues, are based on the general
recognition of Her Majesty’s con-
tinued sovereignty under the Act
of 1867, so far as regards vesting
in the Crown, the same conse-
quence must follow in the case of
provincial revenues which are not
territorial: Maritime Bank of
Canada 1). New Brunswick Re-
ceiver-Greneral, [1892] A. C. at
p. 444. See ante, p. 295.
Earl Selborne, in ATT.-GEN.
OF ONTARIO v. MERCER, July 18,
1883, 8 App. Cas. 767; 52 L. J.
P. C. 84; 49 L. T. 312; ante,
p. 515, held that the Words in
sec. 102, “ shall belong to the
several provinces,” were equiva-
lent to those used in this section
(126) , and “ are by this Act reserved
to the respective governments or
legislatures of the provinces.” And
his Lordship continued——“ That
they do not apply to all lands held
as private property at the time of
the Union seems clear from the cor-
responding language of sec. 125,
“ N o lands or property belonging
to Canada or any province shall
be liable to taxation,” where public
property only must be intended.
They evidently mean lands, &c.,
which were at the time of the
Union in some sense and to some
extent publicz' juris; and in this
respect they receive illustrations
from another section, the 117th.”
In QUIET v. REQ, Nov. 16,
1891, 19 S. C. R. 510, the Do-
minion Parliament incorporated
trustees, giving them power, so far
as was necessary for the winding
up of the Upper Canadian Bank,
which was insolvent, to carry on
the same. By a subsequent Act
they transferred to the Dominion
Government all the property of the
bank vested in the trustees.
Amongst the assets was a piece of
mortgaged land, and this was sold
to pay the Ontario assessment tax.
The Dominion claimed it was
Crown property and was not sub-
jectto taxation. The Supreme Court
held the Acts above mentioned were
valid and intra wires, and that the
land was not subject to taxation.
See a note of this case, ante, sub-
sec. 21, sec. 91, ante, p. 85.
B.N.A. ACT, 129._roWER TO ALTER LAWS. 537
IX.—-—MISCELLANEOUS PROVISIONS.
General.
127, If any person, being at the passing of this Act
a member of the Legislative Council of Canada, Nova
Scotia, or New Brunswick, to whom a place in the
Senate is offered, does not within thirty days thereafter,
by writing under his hand, addressed to the Governor-
General of the province of Canada or to the Lieutenant-
Governor of Nova Scotia or New Brunswick (as the
case may be), accept the same, he shall be deemed to
have declined the same; and any person who, being
at the passing of this Act a member of the Legislative
Council of Nova Scotia or New Brunswick, accepts a
place in the Senate, shall thereby vacate his seat in
such Legislative Council.
128, Every member
Commons of Canada shall, before taking his seat
therein, take and subscribe before the Governor-
General, or some person authorized by him, and every
member of a Legislative Council or Legislative Assembly
of any province shall, before taking his seat therein,
take and subscribe before the Lieutenant-Governor of
the province, or some person authorized by him, the
oath of allegiance contained in the Fifth Schedule to
this Act; and every member of the Senate of Canada
and every member of the Legislative Council of Quebec
shall also, before taking his seat therein, take and
subscribe before the Governor-General, or some person
authorized by him, the declaration of qualiﬁcation
contained in the same schedule.
129, Except as otherwise provided by this Act, all
laws in force in Canada, Nova Scotia, or New Bruns-
wick at the Union, and all courts of civil and criminal
jurisdiction, and all legal commissions, powers, and
authorities, and all ofﬁcers, judicial, administrative, and
ministerial, existing therein at the Union, shall con-
tinue in Ontario, Quebec, Nova Scotia, and New Bruns-
As to Legisla-
tive Councillors
being Senators.
of the Senate or House of Oath of a116-
giance, &c.
Continuance of
existing laws,
courts, officers,
&c.
538
B.N.A. Ac'T, s. 129.--DEATH sENTENcE, RESPITE.
DoBIE v. THE
TEMPORALITIES
BoAnn.
RIEL 'v. THE
QUEEN.
wick respectively, as if the Union had not been made;
subject, nevertheless (except with respect to such as
are enacted by or exist under Acts of the Parliament of
Great Britain or of the Parliament of the United
Kingdom of Great Britain and Ireland), to be repealed,
abolished, or altered by the Parliament of Canada, or
by the legislature of the respective province, according
to the authority of the Parliament or of that legislature
under this Act.1
1See Valin '0. Langlois, 3 Can.
S. C. 1, and ante, p. 18.
In DOBIE r. THE TEMPORAL!-
TIES BOARD, 21 Jan. 1882, 7 App.
Cas. 136; 51 L. J. P. C. 26;
46 L. T. 1, on appeal from Queen’s
Bench, Lower Canada, the question
was whether the Legislature of
Quebec had power by its Act in
1875, 38 Vict. c. 64., to modify
or repeal enactments of a statute
passed by the province of Canada
in 1858, 22 Vict. c. 66., for the
purpose of incorporating a Board
of Management of the funds
(3127,4485) of the Presbyterian
Church of Canada in connection
with the Church of Scotland. The
Judicial Committee held that such
an Act was ultra wires, and that an
Act of the Dominion was necessary.
[See full report of this case, ante,
p. 27 2.]
The Dominion Act 43 Vict.
c. 25. provided for criminal trials
before two magistrates and six
jurymen instead of, as in England,
a judge and 12 jurymen. By
Imperial Act 34 & 35 Vict. c. 28.,
the Dominion was given power to
pass any Act for the administration,
peace, order, and good government
of any territory not for the time
being included in any province.
Held that under 43 Vict. c. 25. the
prisoner was properly tried, the
words of the imperial statute being
apt to authorize the utmost discre-
tion of enactment for the attain-
ment of the objects pointed to.
Riel v. The Queen, Oct. 22, 1885,
10 App. Cas. 675.
13 Oct. 1885. An application
was made this day to grant an ad-
journment of the hearing of Riel’s
petition for leave to appeal from
Q. B. Manitoba. The grounds for
the application were that the Ca-
nadian counsel with the full facts
and documents had not arrived.
That with the information to hand
it would be utterly impossible to
state the grounds of appeal: (1)
The evidence was not taken down in
writing, as shorthand notes cannot
be called taking in writing; (2) on
appeal to Ct. of Q. B. Riel was not
permitted to be present; (3) that
the stipendiary magistrate who took
the evidence had no jurisdiction to
try the prisoner.
Lord Halsbury, L.C., said: It
is impossible to conjecture a case
in which there was less substantial
material afforded for delay. But
looking to the extreme gravity of
the issue involved, their Lordships
are compelled to come to the con-
clusion that they ought to yield
the delay. During these proceed-
ings Riel was granted a further
respite.
On 21 Oct. 1885 [present Hals-
bury, L.C., Lord Fitzgerald, Lord
Monkswell, Lord Hobhouse, Lord
Esher, M.R., and Sir Barnes Pea-
cook], the application came on to
be heard. It appeared Riel had
been sentenced to death in‘ the
North-West Territories of Canada, _
and that sentence had been con-
ﬁrmed on appeal by the Q. B.,
Manitoba. By the B. N. A. .Act,
1871, the North-West Territo-
ries became part'of the "Dominion;
B.N.A. ACT, s. 129.-—CRIMINAL CASE.
539
The Dominion passed the North-
VVest Territories Act, 1880, which
gave power to try “ all criminal
cases ” by a tribunal of two magis-
trates (one a stipendiary magistrate
and the other a justice of the peace)
and a jury of six, instead of a
judge and 12 jurymen, as in Eng-
land. Riel’s counsel contended
that it was not competent for the
Dominion Parliament under the
Act of 1871 to enact a law which
took away from a person charged
with treason the right to be tried
by a jury of 12, and whose verdict
must be unanimous. [Sir Barnes
Peacock: The same words occur
in the Act relating to India under
which the Penal Code and the
Code of Criminal Procedure had
been passed, and if they had the
effect contended for, no trial could
take place in India. Lord Hals-
bury: What are the authorities
for appeal in a criminal case P]
New South Wales v. Bertrand,
1 L. R. P. C. 520; The Queen
v. Coote, 4 L. R. P. C. 599. [See
ante, p. 418, for other cases]
Lord Monkswell: Their Lord-
ships have stated on one or two
occasions that they had jurisdiction
to admit a criminal appeal, but as
a rule they never did except under
very particular circumstances. If
the prisoner had been tried without
a jury, that would have been a
ground of appeal.
Lord Fitzgerald: There is no-
thing in the Act of 1880 making
the decision of the Q. B. of Mani-
toba ﬁnal. There was only a
limited appeal to that Court, and
therefore the- inference from the
Act rather was that the larger
right of appeal to the Queen had
not been abandoned.
22 Oct. 1885. 10 App. Cas.
675; 55 L. J. P. C. 28; 54 L. T.
339. Judgment refusing leave to
appeal was delivered by Lord Hals-
bury, L.C. :.—~
“ This is a petition of Louis Riel,
tried in July last at Regina, in the
N orth-West Territories of Canada,
and convicted of high treason, and
sentenced to death, for leave to RIEL v- THE
appeal against an order of the
Queen’s Bench of Manitoba con-
ﬁrming that conviction.
“It is the usual rule of this
Committee not to grant leave to
appeal in criminal cases, except
where some clear departure from
the requirements of justice is al-
leged to have taken place. Whether
in this case the prerogative to grant
an appeal still exists, as their Lord-
ships have not heard that question
argued, they desire neither to affirm
nor to deny, but they are clearly
of opinion that in this case leave
should not be given. The peti—
tioner was tried under the pro-
visions of an Act passed by the
Canadian Legislature, providing for
the administration of criminal jus-
tice for those portions of the North-
West Territory of Canada in which
the offence charged against the peti-
tioner is alleged to have been com-
mitted. No question has been
raised that the facts as alleged were
not proved to have taken place, nor
was it denied before the original
tribunal, or before the Court of
Appeal in Manitoba, that the acts
attributed to the petitioner amount-
ed to the crime of high treason.
“ The defence upon the facts
sought to be established before the
jury was, that the petitioner was
not responsible for his acts by
reason of mental inﬁrmity. The
jury before whom the petitioner
was tried negatived that defence,
and no argument has been pre-
sented to their Lordships directed
to show that that ﬁnding was
otherwise than correct. Of the ob-
jections raised on the face of the
petition two points only seem to be
capable of plausible or, indeed, in-
telligible expression, and they have
been urged before their Lordships
with as much force as was possible,
and as fully and completely in
their Lordships’ opinion as it would
have been if leave to appeal had
been granted, and they have been
dealt with by the judgments of
the Court of Appeal‘ in Manitoba
UEEN.
54.0 B.N.A. AcT, s. 129.—ENGLISH AND DOM. LAW.
RIEL v. THE
QUEEN.
with a patience, learning, and
ability that leaves very little to be
said upon them.
“The ﬁrst point is that the Act
itself under which the petitioner
was tried was ultra ruz'res the Do~
minion Parliament to enact. That
Parliament derived its authority for
the passing of that statute from
the Imperial Statute 34 & 35
Vict. c. 28., which enacted that
the Parliament of Canada may from
time to time make provision for
the administration, peace, order, and
good government of any territory
not for the time being included in
any province. It is not denied
that the place in question was one
in respect of which the Parliament
of Canada was authorized to make
such provision, but it appears to
be suggested that any provision
differing from the provisions which
in this country have been made for
administration, peace, order, and
good government cannot, as mat-
ters of law, be provisions for peace,
order, and good government in the
territories to which the statute re-
lates, and further that, if a court of
law should come to the conclusion
that a particular enactment was not
calculated as matter of fact and
policy to secure peace, order, and
good government, that they would
be entitled to regard any statute
directed to those objects, but which
a court should think likely to fail
of that eﬁect, as ultra rz'res and
beyond the competency of the Do-
minion Parliament to enact.
“ Their Lordships are of opinion
that there is not the least colour for
such a contention. The words of
the statute are apt to authorize the
utmost discretion of enactment for
the attainment of the objects
pointed to. They are words under
which the widest departure from
criminal procedure as it is known
and practised in this country have
been authorized in Her Majesty’s
Indian Empire. Forms of proce-
dure unknown to the English com-
mon law have there been esta-
blished and acted upon, and to
throw the least doubt upon the
validity of powers conveyed by
those words would be of widely
mischievous consequence. There
was indeed a contention upon the
construction of the Canadian Statute
43 Vict. c. 25., that high treason
was not included in the words
‘any other crimes,’ but it is too
clear for argument, even without
the assistance afforded by the 10th
sub-section, that the Dominion
Legislature contemplated high trea-
son as comprehended within the
language employed.
“ The second point suggested as-
sumes the validity of the Act, but
is founded upon the assumption
that the Act has not been com-
plied with. By the 7th sub-section
of the 76th section, it is provided
that the magistrate shall take or
cause to be taken in writing full
notes of the evidence and other
proceedings thereat, and it is sug-
gested that this provision has not
been complied with, because, though
no complaint is made of inaccuracy
or mistake, it is said that the notes
were taken by a shorthand writer
under the authority of the magis-
trate, and by a subsequent pro-
cess extended into ordinary writ-
ing intelligible to all. Their Lord-
ships desire to express no opinion
what would have been the eﬁect
if the provision of the statute had
not been complied with, because it
is unnecessary to consider whether
the provision is directory only, or
whether the failure to comply with
it would be ground for error, inas-
much as they are of opinion that
the taking full notes of the evidence
in shorthand was a causing to be
taken in writing full notes of the
evidence, and a literal compliance
therefore with the statute.
“ Their Lordships will, therefore,
humbly advise Her Majesty that
leave should not be granted to
prosecute this appeal.”
The ﬁrst step to be takenpwith a
view to test the validity of an Act
of the provincial legislature, is to,
consider whether the subject-matter
B.N.A. ACT, s. 129.---REPEAL BY PROVINCE.
541
of the Act falls within any of
the classes of subjects enumerated
in sec. 92. If it does not, then the
Act is of no validity. If it does, then
these further questions may arise,
namely, “ whether, notwithstanding
that it is so, the subject of the Act
does not also fall within one of
the enumerated classes of subjects
in sec. 91, and whether the power
of the provincial legislature is or
is not thereby overborne.” [See
Lord Watson in Dobie v. Tempo-
ralities Board, 21 Jan. 1882; 7
App. Cas. 136; 51 L. J. P. C. 26;
46 L. T. 1 ; and ante, p. 278.]
In GRIFFITH v. RIoUx, June
26, 1883, 6 Legal News, 211, it was
held that the Ontario Legislature
could not repeal the Temperance
Act of 1864, 27 & 28 Vict.
(Ontario) 0. 18., by a provincial
Act passed after confederation, on
the ground that the province could
not repeal what they could not re-
enact [See also Hart v. Corp.
of Missisquoi, 3 Q. L. R. 180;
Cooey v. Municipality of Brome,
21 L. C. J. 182; Cowan v. Wright,
1876, 23 Grant 616 ; Re Goodhue,
19 Grant 366; Bourgoin v. La
Compagnia Du Chemin de Fer de
Montreal, &c., 5 App. Cas. 381, 49
L. J. P. C. 68; Evans v. Hudon,
22 L. C. J. 268; Leprohon v. Corp.
of Ottawa, 2 Tupp. 522,40 U. C. R.
478; and the Att.—Gen. of Ontario
v. Att.-Gen. of Canada (The Pro-
hibition Liquor Case), post, Ap-
pendix C.
130. Until the Parliament of Canada otherwise
provides, all officers of the several provinces having
duties to discharge, in relation to matters other than
those coming within the classes of subjects by this
Act assigned exclusively to the legislatures of the pro-
vinces, shall be officers of Canada, and shall continue
to discharge the duties of their respective offices under
the same liabilities, responsibilities, and penalties as if
the Union had not been made.
131, Until the Parliament of Canada otherwise
provides, the Governor-General in Council may from
time to time appoint such oﬁ'icers as the Governor-
General in Council deems necessary or proper for the
effectual execution of this Act.
132, The Parliament and Government of Canada
shall have all powers necessary or proper for performing
the obligations of Canada or of any province thereof,
as part of the British Empire, towards foreign countries,
arising under treaties between the Empire and such
foreign countries.1
1It was held In re CHARLES
WORMS, writ of Habeas Corpus,
22 L. C. J , 109, that the Extra.
dition Act, 1870 (32 & 33 Vict.
c. 52.), Imperial, applied to Canada,
and was not inconsistent with this
GRIFFITH r.
Rroux.
Transfer of
officers to
Canada.
Appointment of
new officers.
Treaty obliga-
tions.
In re CHARLES
Worms.
5412 RNA. ACT, 5. 132.—EXTRADITION ACTS.
In re CHARLES
Worms.
Use of English
and French
languages.
Appointment
of executive
ofﬁcers for
Ontario and
Quebec.
section. And the Canadian Extra~
dition Act, 1869 (31 Vict. c. 94.),
according to Dorion, C.J., must be
taken as part of the Act of 1870.
See Imperial Act 36 8: 37 Vict.
c. 60. [post, Schedule A.]; and
Dominion Acts 40 Vict. c. 25.;
45 Vict. cc. 20. 21.; and R. S. C.
1886,c.142.
133; Either the English or French language may
be used by any person in the debates of the Houses
of the Parliament of Canada, and of the Houses of the
Legislature of Quebec; and both those languages shall
be used in the respective records and journals of those
Houses; and either of those languages may be used
by any person or in any pleading or process in or
issuing from any court of Canada established under
this Act, and in or from all or any of the courts of
Quebec.
The Acts of the Parliament of Canada and of the
Legislature of Quebec shall be printed and published
in both those languages.
Ontario and Quebec.
134-. Until the Legislature of Ontario or of Quebec
otherwise provides, the Lieutenant-Governors of Ontario
and Quebec may each appoint under the great seal of
the province the following oﬂicers, to hold oﬁice during
pleasure, that is to say,-—the Attorney-General, the
Secretary and Registrar of. the province, the Treasurer
of the province, the Commissioner of Crown Lands,
and the Commissioner of Agriculture and Public Works,
and in the case of Quebec the Solicitor-General, and
may, by order of the Lieutenant-Governor in Council,
from time to time prescribe the duties of those ofﬁcers,
and of the several departments over which they shall
preside or to Which they shall belong, and of the
officers and clerks thereof, and may also appoint other
and additional oﬂicers to hold oﬁice during pleasure,
‘A and may from time to time prescribe the duties ‘of
those officers, and of the . several departments over
B.N.A. AcT, S. 135.—-PROVINCIAL sEALs. 54.3
which they shall preside or to which they shall belong,
and of the officers and clerks thereof.1
1 The great seal of each pro- was still to be used notwith-
vince, as being the mode in which standing confederation.
the sovereign power is signiﬁed,
135. Until the Legislature of Ontario or Quebec
otherwise provides, all rights, powers, duties, functions,
responsibilities, or authorities at the passing of this
Act vested in or imposed on the Attorney-General,
Solicitor-General, Secretary and Registrar of the Pro-
vince of Canada, Minister of Finance, Commissioner
of Crown Lands, Commissioner of Public Works, and
Minister of Agriculture and Receiver-General, by any
law, statute, or ordinance of Upper Canada, Lower
Canada, or Canada, and not repugnant to this Act,
shall be vested in or imposed on any ofﬁcer to be
appointed by the Lieutenant-Governor for the dis-
charge of the same or any of them; and the Com-
missioner of Agriculture and Public Works shall per-
form the duties and functions of the oﬁice of Minister
of Agriculture at the passing of this Act imposed by
the law of the province of Canada, as well as those
of the Commissioner of Public Works.
136. Until altered by the Lieutenant-Governor in
Council, the great seals of Ontario and Quebec re-
spectively shall be the same, or of the same design,
as those used in the Provinces of Upper Canada and
Lower Canada respectively before their Union as the
Province of Canada.1
1 Shortly after confederation,
seals were designed for all four pro—
vinces and for the Dominion. A
combination of those seals which
were accepted by the provinces
formed the seal of Canada. OE.
Can. Gaz., 20 Nov. 1869. Nova
Scotia neglected to use the new
seal, but continued to use its old
seal, transmitted on the accession
of the Queen and said to be formed
of arms granted to it in the time of
Charles I. As to the validity of acts
done under the old seal of Nova
Scotia, see Ritchie v. Lenoir,
11 S. C. N. S. (2 Russ. & G.) 450.
3 S. C. R. 575, and for the con-
ﬁrmation of all acts done under the
old seal, see 40 Vict. (Dom) c.'3.
and 40 Vict. (N .S.) c. 2.
Powers, duties,
&c. of execu-
tive officers.
Great seals.
137, The words “ and from thence to the end of Construction of
the then next ensuing session of the Legislature,
’’
OI‘
temporary Acts.
5414: B.N.A. ACT, s. 138.—PROCLAMATIONS.
As to errors in
names.
As to issue of
proclamations
before Union
to commence
after Union.
As to issue of
proclamations
after Union.
words to the same effect, used in any temporary Act
of the province of Canada not expired before the
Union, shall be construed to extend and apply to the
next session of the Parliament of Canada if the sub-
ject-matter of the Act is within the powers of the
same as deﬁned by this Act, or to the next sessions
of the Legislatures of Ontario and Quebec respectively,
if the subject-matter of the Act is within the powers
of the same as deﬁned by this Act.1
1 Reg. '0. Reno and Anderson, where an old Act of Canada was
continued. 4Practice Repts. of Justice, 281.
138, From and after the Union the use of the
words “Upper Canada ” instead of “ Ontario,” or
“Lower Canada” instead of “ Quebec,” in any deed,
writ, process, pleading, document, matter, or thing,
shall not invalidate the same.
139, Any proclamation under the great seal of the
province of Canada issued before the Union to take
effect at a time which is subsequent to the Union,
whether relating to that province, or to Upper Canada,
or to Lower Canada, and the several matters and
things therein proclaimed, shall be and continue of
like force and effect as if the Union had not been
made.
140, Any proclamation which is authorized by any
Act of the Legislature of the province of Canada to
be issued under the great seal of the province of
Canada, whether relating to that province or to Upper
Canada or to Lower Canada, and which is not issued
before the Union, may be issued by the Lieutenant-
Governor of Ontario or of Quebec, as its subject-
matter requires, under the great seal thereof; and
from and after the issue of such proclamation, the
same and the several matters and things therein pro-
claimed shall be and continue of the like force and
effect in Ontario or Quebec as if the Union had not
been, made.
Q
B.N.A. ACT, s. 14l.—ARBITRATION. 545
14-1. The penitentiary of the province of Canada
shall, until the Parliament of Canada otherwise pro-
vides, be and continue the penitentiary of Ontario and
of Quebec.
142. The division and adjustment of the debts,
credits, liabilities, properties and assets of Upper
Canada and Lower Canada shall be referred to the
arbitrament of three arbitrators, one chosen by the
Government of Ontario, one by the Government of
Quebec, and one by the Government of Canada, and
the selection of the arbitrators shall not be made until
the Parliament of Canada and the Legislatures of
Ontario and Quebec have met; and the arbitrator
chosen by the Government of Canada shall not be a
resident either in. Ontario or in Quebec.1
1 The case of The Province of
Ontario v. The Province of Quebec
was in the P. C. March ll, 1878.
In ATT.-GEN. or QUEBEC v.
GRAY, 31 Oct. 1871, 15 L. C. J.
306, it was held the Superior
Court of Lower Canada has juris-
diction over an arbitrator appointed
by the Government of the Domi-
nion, under this section, while such
arbitrator was acting within the
province of Quebec.
143.
time to
The Governor-General in Council may, from
time, order that such and so many of the
records, books, and documents of the province of
Canada as he thinks ﬁt shall be appropriated and
delivered either to Ontario or to Quebec, and the same
shall thenceforth be the property of that province;
or any copy thereof or extract therefrom, duly certi-
ﬁed by the ofﬁcer having charge of the original thereof,
shall be admitted as evidence.
144:. The Lieutenant-Governor of Quebec may from
time to time, by proclamation under the great seal
of the province, to take effect from a day to be ap-
pointed therein, constitute townships in those parts of
the province of Quebec in which townships are not
s 2340. M M
Penitentiary.
Arbitration ro-
specting debts,
860.
Division of
records.
Constitution of
townships in
Quebec.
546 B.N.A..AGT, s. 146.—ADMISSION or COLONIES.
- then already constituted, and ﬁx the metes and bounds
Duty of Go-
ve‘i‘nment and
Parliament of
Canada to make
railway herein
described.
Power to admit
Newfoundland,
&c. into the
Union.
thereof.
X.—INTER-COLONIAL RAILWAY.
14-5. Inasmuch as the provinces of Canada, Nova
Scotia, and New Brunswick have joined in a declara-
tion that the construction of the Inter-Colonial Rail-
way is essential to the consolidation of the Union of
British North America, and to the assent thereto of
Nona Scotia and New Brunswick, and have conse-
quently agreed that provision should be made for its
immediate construction by the Government of Canada ,-
therefore, in order to give effect to that agreement,
it shall be the duty of the Government and Parlia-
ment of Canada to provide for the commencement
within six months after the Union of a railway con-
necting the river St. Lawrence with the city of
Halifax in Nova Scotia, and for the construction
thereof without intermission and the completion thereof
with all practicable speed.
XI.——AD1\IISSION or OTHER COLONIES.
146. It shall be lawful for the Queen, by and
with the advice of Her Majesty’s most Honourable
Privy Council, on addresses from the Houses of the
Parliament of Canada, and from the Houses of the
respective Legislatures of the colonies or provinces of
Newfoundland, Prince Edward Island, and British
Columbia, to admit those colonies or provinces, or any
of them, into the Union, and, on address from the
Houses of the Parliament of Canada, to admit
Rupert’s Land and the North-Western Territory, or
either of them, into the Union, 011 such terms and
conditions in each case as are in the addresses eX-
pressed and as the Queen thinks ﬁt to approve, sub-
ject to the provisions of this Act; and the provisions
of any Order in Council in that behalf shall have
B.N.A. ACT, s. l47.-—NEW PROVINCES.
547
effect, as if they had been enacted by the Parliament
of the United Kingdom of Great Britain and Ireland.1
1 Rupert’s Land [see 31 & 32
Vict. c. 105., 32 St 33 Vict. c. 101.,
and 32 & 33 Vict. (Dom.) c. 3.] and
the North-West Territory [see
Note, ante, p. 5] were admitted
into the Union by Order of Her
Majesty in Council dated 23 June
1870.
The Imperial Act, 1871, 34 &-
35 Vict. c. 28. s. 4, enacted that
the Dominion Parliament might
from time to time provide for the
“ administration, peace, order, and
good government of any territory
not for the time being included
in any province. The Dominion
Parliament, by Act 43 Vict. c. 25.
(1880), made provision for trial of
criminals differing from the pro~
visions for such trials in England,
namely, that the accused might be
tried by two magistrates and a jury
of six, instead of, as in England, a
judge and twelve jurymen. Held
competent of the Dominion to so
enact. Riel v. The Queen, Oct. 22,
1885,10 App.Cas. 675, ante, p. 538.
British Columbia was admitted
into the Union by Order in Coun-
cil dated 16 May 1871. Prince
Edward Island by Order of Her
Majesty in Council 26 June 1873.
[See 38 Vict. (1).) p. ix.]
Gwynne, J ., describes the eifect
of this section in Att.-Gen. of
British Columbia v. Att.-Gen. of
Canada, 1887, 14 S. C. R. at p. 372,
as constituting the provinces wish-
ing to enter the Union as inde-
pendent powers to the extent of
enabling them to negotiate a treaty
with the Dominion of Canada,
represented by the two Houses of
Parliament, as another independent
power, and together to agree upon
terms upon which the particular
province will be received into and
become part of the Dominion,
“which treaty, if and when ap-
proved of and ratiﬁed by Her
Majesty in her Privy Council,
should have the force and eﬁect of
an Act of the Imperial Parliament.”
[See also The Manitoba School
Cases, ante, sec. 93, p. 371].
147, In case of the admission of Newfoundland and
Prince Edward Island, or either of them, each shall be
entitled to a representation in the Senate of Canada of
four members, and (notwithstanding anything in this
Act) in case of the admission of Newfoundland the
normal number of senators shall be seventy-six, and
their maximum number shall be eighty-two; but
Prince Edward Island, when admitted, shall be deemed
to be comprised in the third of the three divisions into
which Canada is, in relation to the constitution of the
Senate, divided by this Act, and accordingly, after the
admission of Prince Edward Island, whether New-
foundland is admitted or not, the representation of Nova
Scotia and New Brunswick in the Senate shall, as
vacancies occur, be reduced from twelve to ten mem-
bers respectively, and the representation of each of
As to repre-
sentation of
Newfoundland
and Prince
Edward Island
in Senate.
M 31
548
B.N.A. ACT, sch. 1.——OLD ELECTORALS.
those provinces shall not be increased at any time
beyond ten, except under the provisions of this Act for
the appointment of three or six additional senators
under the direction of the Queen.

SCHEDULES.
(The ﬁrst and second schedules,
dealing with (A) the electoral dis-
trict of Ontario and (B) with the
electoral district of Quebec, are
now, for the purpose of representa-
tion in the House of Commons, as
given in Revised Statutes of Ca-
nada, c. 6. See that Act also for
electoral districts of the other
provinces.
The provincial legislatures have
provincial statutes ﬁxing their elec—
toral districts.)
THE FIRST SCHEDULE.
Electoral Districts of Ontario.
A.
EXISTING ELECTORAL DIVISIONS.
CoUNTIEs.
1. Prescott. 6. Carleton.
2. Glengarry. 7. Prince Edward.
3. Stormont. 8. Halton.
4. Dundas. 9. Essex.
5. Russell.
RIDINes or COUNTIES.
10. North Riding of Lanark.
11. South Riding of Lanark.
12 North Riding of Leeds and '
North Riding of Grenville.
13. South Riding of Leeds.
14. South Riding of Grenville.
15. East Riding of Northum- _
berland.
16. West Riding of N orthum- ‘
berland (excepting therefrom the -
Township of South Monaghan).
17. East Riding of Durham.
18. West Riding of Durham.
19. North Riding of Ontario.
20. South Riding of Ontario.
21. East Riding of York.
CITIES, PARTS or CITIES,
35. West Toronto.
36. East Toronto.
37. Hamilton.
38. Ottawa.
39. Kingston.
40. London.
22. West Riding of York.
23. North Riding of York.
24. North Riding of W ent-
worth.
25. South Riding of ‘Vent-
worth.
26. East Riding of Elgin.
27. West Riding of Elgin.
28. North Riding of Waterloo.
29. South Riding of Waterloo.
30. North Riding of Brant.
31. South Riding of Brant.
32. North Riding of Oxford.
33. South Riding of Oxford.
34. East Riding of Middlesex.
AND Towns.
the Township of Elizabethtown
l thereto attached.
42. Town of Niagara, with
the Township of Niagara thereto
attached.
43. Town of Cornwall, with
the Township of Cornwall thereto
41. Town of Brockvillo, with ‘attached.
B.N.A. ACT, 5a.. L-ELEC'IORAL DISTRICTS. 54:9
B.
New ELEcToRAL DIVISIONS.
44. The Provisional Judicial District of ALGoMA.
The County of BRUCE, divided into Two Ridings, to be called respec-
tively the‘ North and South Ridings :—
45. The North Riding of Bruce to consist of the Townships of
Bury, Lindsay, Eastnor, Albemarle, Amabel, Arran, Bruce,
Elderslie, and Langeen, and the Village of Southampton.
46. The South Riding of Bruce to consist of the Townships of
Kincardine (including the Village of Kincardine), Greenock,
Brant, Huron, Kinross, Culross, and Carrick.
The County of HURON, divided into Two Ridings, to be called re-
spectively the North and South Ridings :—
47 . The North Riding to consist of the Townships of Ashﬁeld,
WVawanosh, T urnberry, Howick, Morris, Grey, Colborne,
Hullett, including Village of Clinton, and McKillop.
48. The South Riding to consist of the Town of Goderich and
the Townships of Goderich, Tuckersmith, Stanley, Hay,
Usborne, and Stephen.
The County of MIDDLEsEx, divided into Ridings, to be called respec—
tively the North, \Vest, and East Ridings :—-—
49. The North Riding to consist of the Townships of McGillivray
and Biddulph (taken from the County of Huron), and
Williams East, \Villiams West, Adelaide, and Lobo.
50. The West Riding to consist of the Townships of Delaware,
Carradoc, Metcalfe, Mosa, and Ekfrid, and the Village of
Strathroy.
[The East Riding to consist of the Townships now embraced
therein, and be bounded as it is at present]
51. The County of LAMBTON to consist of the Townships of
Bosanquet, Warwick, Plympton, Sarnia, Moore, Enniskillen,
and Brooke, and the Town of Sarnia.
52. The County of KENT to consist of the Townships of Chatham,
Dover, East Tilbury, Romney, Raleigh, and Harwich, and
the Town of Chatham.
53. The County of BOTHWELI. to consist of the Townships of
Sombra, Dawn, and Euphemia (taken from the County of
Lambton), and the Townships of Zone, Camden with the
Gore thereof, Orford, and Howard (taken from the County
of Kent).
The County of GREY, divided into Two Ridings, to be called respec-
tively the South and North Ridings :—--~
54. The South Riding to consist of the Townships of Bentinck,
Glenelg, Artemesia, Osprey, Normanby, Egremont, Proton,
and Melancthon. -
55. The North Riding to consist of the Townships of Collingwood,
Euphrasia, Holland, Saint-Vincent, Sydenham, Sullivan,
Derby, and Keppel, Sarawak and Brooke, and the Town of
Owen Sound.
The County of PERTH, divided into Two Ridings, to be called re»
spectively the South and North Ridings :—
56. The North Riding to consist of the Townships of Wallace,
Elma, Logan, Ellice, Mornington, and North Easthope, and
the Town of Stratford.
550 B.N.A. 140T, 4511. 1.-ELECTORAL DISTRICTS.
57 . The South Riding to consist of the Townships of Blanchard,
Downie, South Easthope, Fullarton, Hibbert, and the
Villages of Mitchell and Ste. Marys.
The County of WELLINGTON, divided into Three Ridings, to be called
respectively North, South, and Centre Ridings :
58. The North Riding to consist of the Townships of Amaranth,
Arthur, Luther, Minto, Maryborough, Peel, and the Village
of Mount Forest.
59. The Centre Riding to consist of the Townships of Garafraxa,
Erin, Eramosa, Nichol, and Pilkington, and the Villages of
Fergus and Elora.
60. The South Riding to consist of the Town of Guelph, and the
Townships of Guelph and Puslinch.
The County of NORFOLK, divided into Two Ridings, to be called
respectively the South and North Ridings :—
61. The South Riding to consist of the Townships of Charlotteville,
Houghton, Walsingham, and Woodliouse, and with the Gore
thereof.

62. The North Riding to consist of the Townships of Middleton,
Townsend, and Windham, and the Town of Simcoe.
63. The County of HALDIMAND to consist of the Townships of
Oneida, Seneca, Caguya North, Caguya South, Raynham,
Walpole, and Dunn.
64. The County of MONGK to consist of the Townships of Can-
borough and Moulton, and Sherbrooke, and the Village of
Dunville (taken from the County of Haldiniand), the Town-
ships of Caistor and Gainsborough (taken from the County
of Lincoln), and the Townships of Pelham and Wainﬂeet
(taken from the County of Welland).
65. The County of LINCOLN to consist of the Townships of
Clinton, Grantham, Grimsby, and Louth, and the Town of
St. Catherines.
66. The County of WELLAND to consist of the Townships of
Bertie, Crowland, Humberstone, Stamford, Thorold, and
WVilloughby, and the Villages of Chippewa, Clifton, Fort
Erie, Thorold, and 1Velland.
67. The County of PEEL to consist of the Townships of Chingua-
cousy, Toronto, and the Gore of Toronto, and the Villages
of Brampton and Streetsville.
68. The County of CARDWELL to consist of the Townships of
Albion and Caledon (taken from the County of Peel), and
the Townships of Adjala and Mono (taken from the County
of Simcoe).
The County of SIMGOE, divided into Two Ridings, to be called re-
spectively the South and the North Ridings :—
69. The South Riding to consist of the Townships of West
Gwillimbury, Tecumseth, Innisﬁl, Essa, Tosorontio, Mul-
mur, and the Village of Bradford.
'70. The North Riding to consist of the Townships of N ottawasaga,
Sunnidale, Vespra, Flos, Oro, Medonte, Orillia and Matche-
dash, Tiny and Tay, Balaklava and Robinson, and the
, Towns of Barrie and Collingwood.
The County of VICTORIA, divided into Two Ridings, to be called
respectively-the South and North Ridings :- - .
j 71. ‘The South Riding to vconsist of the Townships of Ops, Mari-
posa, Emily, Verulam, and the Town of Lindsay.
RNA. ACT, sch. 1.—-ELECTORAL DISTRICTS. 551
'72. The North Riding to consist of the Townships of Anson,
Bexley, Carden, Dalton, Digby, Eldon, Fenelon, Hindon,
Laxton, Lutterworth, Macaulay and Draper, Sommerville,
and Morrison, Muskoka, Monck and \Vatt (taken from the
County of Simcoe), and any other surveyed Townships lying
to the North of the said North Riding.
The County of PETERBOROUGH, divided into Two Ridings, to be
called respectively the West and East Ridings :—
'73. The West Riding to consist of the Townships of South
Monaghan (taken from the County of Northumberland),
North Monaghan, Smith, and Ennismore, and the Town of
Peterborough.
74. The East Riding to consist of the Townships of Asphodel,
Belmont and Methuen, Douro, Dummer, Galway, Harvey,
Minden, Stanhope and Dysart, Otonabee, and Snowden, and
the Village of Ashburnham, and any other surveyed Town-
ships lying to the North of the said East Riding.
The County of HASTINGS, divided into Three Ridings, to be called
respectively the West, ,East, and North Ridings :—
'75. The WVest Riding to consist of the Town of Belleville, the
Township of Sydney, and the Village of Trenton.
'76. The East Riding to consist of the Townships of Thurlow,
_ Tyendinaga, and Hungerford.
77. The North Riding to consist of the Townships of Rawdon,
Huntingdon, Madoc, Elzevir, Tudor, Marmora, and Lake,
and the Village of Stirling, and any other surveyed Town-
ships lying to the North of the said North Riding.
'78. The County of LENNOX to consist of the Townships of Rich‘
mond, Adolphustown, North Fredericksburg, South Fre-
dericksburg, Ernest Town, and Amherst Island, and the
Village of Napanee.
79. The County of ADDINGTON to consist of the Townships of
Camden, Portland, Shefﬁeld, Hinchinbroke, Kaladar, Ken-
nebec, Olden, Oso, Anglesea, Barrie, Clarendon, Palmerston,
Eﬂingham, Abinger, Miller, Canonto, Denbigh, Lough-
borough, and Bedt'ord.
80. The County of FRONTENAC to consist of the Townships of
Kingston, ‘Volfe Island, Pittsburg and Howe Island, and
Storrington.
The County of RENFREw, divided into Two Ridings, to be called
respectively the South and North Ridings :~---
81. The South Riding to consist of' the Townships of McNab,
Bagot, Blithfield, Brougham, Horton, Admaston, Grattan,
Matawatchan, Griffith, Lyndoch, Raglan, Radcliife, Brude-
nell, Sebastopol, and the Villages of Arnprior and Renfrew.
82. The North Riding to consist of the Townships of Ross,
Bromley, Westmeath, Stafford, Pembroke, Wilberforce,
Alice, Petawawa, Buchanan, South A lgona, North Algona,
Fraser, McKay, Wylie, Rolph, Head, Maria, Clara, Haggerty,
Sherwood, Burns, and Richards, and any other surveyed
Townships lying North-westerly of the said North Riding.
Every Town and incorporated Village existing at the Union, not
specially mentioned in this Schedule, is to be taken as part of the
County or Riding within which it is locally situate.
552 B.N.A. AcT, sch. 2.-QUEBEC DISTRICTS.
THE SECOND SCHEDULE.
Electoral Districts of Quebec specially ﬁa'ed.
COUNTIES 0F—
Pontiac. Missisquoi. Compton.
Ottawa. Brome. Wolfe and Richmond.
Argenteuil. Sheiford. Megantic.
Huntingdon. Stanstead. ,_
TOWN of Sherbrooke.
THE THIRD SCHEDULE.
Provincial Public Works and Property to be the Property
of Canada.
. Canals, with Lands and Water Power connected therewith.
. Public Harbours.
. Lighthouses and Piers, and Sable Island.
. Steamboats, Dredges, and public Vessels.
. Rivers and Lake Improvement-s.
. Railways and Railway Stocks, Mortgages, and other Debts due by
Railway Companies.
'7. Military Roads.
8. Custom Houses, Post Offices, and all other Public Buildings,
except such as the Government of Canada appropriate for the use of
the Provincial Legislatures and Governments.
9. Property transferred by the Imperial Government, and known as
Ordnance Property.
10. Armouries, Drill Sheds, Military Clothing, and Munitions of
\Var, and Lands set apart for General Public Purposes.
Gbvr-FKOQlQr-d
THE FOURTH SCHEDULE.
Assets to be the Property of Ontario and Quebec conjointly.
Upper CanadaBuilding Fund. ' Consolidated MunicipalLoan Fund,
Lunatic Asylums. Lower Canada.
Normal School. Agricultural Society, Upper Ca-
Court Houses : nada.
in , Lower Canada Legislative Grant.
Aylmer, Lower Canada. Quebec Fire Loan.
Montreal, J ; Tamisconata Advance Account.
Kamouraska, ‘ Quebec Turnpike Trust.
Law Society,'Upper Canada. I Education—East.
Montreal Turnpike Trust. Building and Jury Fund, Lower
University Permanent Fund. a Canada.
Royal Institution. . Municipalities Fund.
Consolidated Municipal Loan Fund, ‘ Lower Canada Superior Education
'Upper Canada. 1 Income Fund.
THE FIFTH SCHEDULE.
OATH or ALLEGIANCE.
I A.B. do swear, that I will be faithful and bear true allegiance to
Her Majesty Queen Victoria.
Note.— The name of the King or Queen of the United Kingdom of
Great Britain and Ireland for the time being is to be substituted from
time to time, with proper terms of reference thereto.
B.N.A. ACTS OF 1868, 1871.-RUPERT’S LAND. 553
DECLARATION OF QUALIFICATION.
I A.B. do declare and testify, that I am by law duly qualiﬁed to be
appointed a member of the Senate of Canada [or as the case may be],
and that I am legally or equitably seised as of freehold for my own use
and beneﬁt of lands or tenements held in free and common socage
[or seised or possessed for my own use and beneﬁt of lands or tene-
ments held in franc-alleu or in roture (as the case may be),] in the
province of Nova Scotia [or as the case may be] of the value of four
thousand dollars over and above all rents, dues, debts, mortgages,
charges, and incumbrances due or payable out of or charged on or
alfeeting the same, and that I have not collusively or colourably obtained
a title to or become possessed of the said lands and tenements or any
part thereof for the purpose of enabling me to become a member of the
Senate of Canada [or as the case may be], and that my real and per-
sonal property are together worth four thousand dollars over and
above my debts and liabilities.

For the following Acts see Appendix A.
BRlTlSH NORTH AMERICA ACTS.
31 8t 32 Vict. (1868) c. 105. was an Act enabling
Her Majesty to accept a surrender upon terms of the
lands, privileges, and rights of the Hudson Bay Com-
pany in “ Rupert’s Land.”
And see. 5 declared it was competent to Her Majesty
by Order in Council, on address from the Houses of
Parliament of Canada, to declare that Rupert’s Land
should be admitted into the Dominion, and thereupon
it should be lawful for the Parliament of Canada to
establish, 850., within said land all such laws, insti-
tutions, and ordinances, and to constitute such courts
and ofﬁcers, as may be necessary for the peace, order,
and good government of Her Majesty’s subjects and
others therein. See the Act in full, post, Appendix A.
B. N. A. ACT, 1871.
The 34 8t 35 Vict. (1871) c. 28. was an Imperial Act
conﬁrming the Manitoba Acts, 1870, 32 & 33 Vict.
c. 3. and 33 Vict. c. 3. (two Dominion Acts), (1)
providing for the temporary government of Rupert’s
Land and the North-Western Territory; and (2) creating
the province of Manitoba out of Rupert’s Land. It
was intituled “An Act respecting the establishment
of Provinces in the Dominion of Canada.”
554: B.N.A. ACT or 1871.--ESTABLISHING Pnovs.
“Whereas doubts have been entertained respecting
the powers of the Parliament of Canada to establish
provinces in territories admitted, or which may here-
after be admitted, into the Dominion of Canada, and
to provide for the representation of such provinces in
the said Parliament, and it is expedient to remove such
doubts and to vest such powers in the said Parliament.”
Then by sec. 2 it was enacted that the Parliament
of Canada might from time to time establish new
provinces 1. in any territories forming for the time
being part of the Dominion of Canada, but not in-
cluded in any province thereof, and may at the time
of such establishment make provision for the constitu-
tion and administration of any such province and for the
passing of laws for the peace, order, and good govern-
ment of such province, and for its representation in
Parliament.
By sec. 3 power was given to the Parliament of
Canada, with the consent of the legislature of any
province, to increase, diminish, or otherwise alter the
limits of such province; and by sec. at power to make
provision for the administration, peace, order, and
good government of any territory not for the time
included in any province.1 Then sec. 5 afﬁrmed the
above cited Acts; and sec. 6 enacted that, except as
provided for in sec. 3, it was not to be within the
competency of the Parliament of Canada to alter the
provisions of the 33 Vict. c. 3. in so far as it related
to the province of Manitoba, or of any other Act
1T he Dominion has this year
(1895) set apart the unorgan-
ised and ‘unnamed portion of
the Dominion into provincial dis-
tricts. The territory east of Hud-
son Bay, having the province of
Quebec on- the south and the At-
lantic on the east, is to be hereafter
known as “Ungava.” The terri-
tory embraced in the islands of
the Arctic Sea is to be known as
“ Franklin.” The Mackenzie river
region is to be known as “ Macken-
zie,” covering a space of 538,000
square miles. The Paciﬁc Coast
territory, lying north of British
Columbia and West of Mackenzie,
is to be “ Yukon,” covering
225,000 square miles. In addi-
tion to this, Athabasca has been
increased ‘by 143,500 square miles,
and Keewatin by 470,000 square
miles.
B.N.A. ACTS or 1875, 1886, 1895.—-POWERS or CA. 11c. 555
hereafter establishing new provinces, subject always to
the right of the Zlfanz'toba Legislature to alter any
law respecting the qualiﬁcation of electors and mem-
bers of the Legislative Assembly and to make election
laws.
1 See Riel’s case, Oct. 22, 1885, 10 App. Cas. 675, and ante, p. 538.
B. N. A. ACT, 1875.
38 & 39 Vict. (1875) c. 38. was an Act to remove
certain doubts with respect to the powers of the
Parliament of Canada under sec. 18 of the B. N. A.
Act, 1867. After citing that section it proceeded :.
Whereas doubts have arisen with regard to the power
of deﬁning by an Act of the Parliament of Canada,
in pursuance of the said section, the said privileges,
powers, or immunities, and it is expedient to re-
move such doubts. Sec. 1 repealed the 18th section
of the B. N. A. Act, 1867 , and substituted for it
another enactment. See ante, p. 11.
B. N. A. ACT, 1886.
49 & 5O Vict. (1886) c. gave the Parliament of
Canada power to make provision for the represen-
tation in the Senate and House of Commons of
Canada, or either of them, of any territory which
for the time being forms part of the Dominion, but
is not included in any province; and sec. 2 declared
any Act passed by the Parliament of Canada, whether
before or after this Act, and notwithstanding anything
in the B. N. A. Act, 1867, was to have effect. See
the Act, post, Appendix A.
In 1895 was passed the 59 Vict. (2nd sess.) c. 3.,
which conﬁrmed an Act of the Dominion of Canada
providing for the appointment of a Deputy Speaker
to the Canadian House of Commons.
556 , 14 GEO. 3. c. s3.--THE “QUEBEC ACT." [1774.
Preamble.
APPENDIX A.
IMPERIAL STATUTES AFFECTING CANADA.
l4 GEO. 3. (1.774) c. 83.
Of this Act, secs. 3, 4, 6, 7, and sec. 11 from the
word “ subject” to the end, and secs. 12, 13, 14, 15,
16, and 17, were repealed by 35 85 36 Vict. (1872)
c. 63., S. L. R. Act. The 31 Geo. 3. (1791) c. 31. had
repealed so much of this Act as related to the ap-
pointment of a Council for Quebec and its powers.
An Act for the more effectual provision for the
Government of the Province of Quebec in North
America.
HEREAS His Majesty, by his royal proclama-
tion bearing date the 7th day of October, in the
third year of his reign, thought ﬁt to declare the pro-
visions which had been made in respect to certain
counties, territories, and islands in America, ceded to
His Majesty by the deﬁnitive treaty of peace, con-
cluded at Paris on the 10th day of February 1763 ; And
whereas, by the arrangements made by the said royal
proclamation, a very large extent of country, within
which there were several colonies and settlements of
the subjects of France, who ‘claimed to remain therein
under the faith of the said treaty, was left, without
any provision being made for the administration of
the civil government therein; and certain parts of the
territory of Canada, where sedentary ﬁsheries had been
established and carried on by the subjects of France,
inhabitants of the said province of Canada, under
1774.] 14 CEO. 3. c. 83.-OLD BOUNDARIES. 557
grants and concessions from the Government thereof,
were annexed to the Government of Newfoundland,
and thereby subject to regulations inconsistent with
the nature of such ﬁsheries: May it therefore please
Your Most Excellent Majesty that it may be enacted; cpuntries in_
and be it enacted by the King’s Most Excellent Ma- t‘eiilhgiﬁgnfi‘”
jesty, by and with the advice and consent of the Lords $32,132,283,
Spiritual and Temporal, and Commons, in this present of
Parliament assembled, and by the authority of the
same, That all the territories, islands, and countries
in North America, belonging to the Crown of Great
Britain, bounded on the south by a line from the Bay
of Chaleurs, along the high lands which divide the
rivers that empty themselves into the River Saint
Lawrence from those which fall into the sea, to a
point in 45 degrees of northern latitude, on the eastern
bank of the River Connecticut, keeping the same lati-
tude directly west, through the Lake Champlain, until,
in the same latitude, it meets the River Saint Law-
rence; from thence up the eastern bank of the said
river to the Lake Ontario; thence through the Lake
Ontario, and the river commonly called Niagara; and
thence along by the eastern and south-eastern bank
of Lake Erie, following the said bank, until the same
shall be intersected by the northern boundary, granted
by the charter of the province of Bensylvania, in case
the same shall be so intersected; and from thence
along the said northern and western boundaries of the
said province, until the said western boundary strike
the Ohio: But in case the said bank of the said lake
shall not be found to be so intersected, then following
the said bank until it shall arrive at that point of the
said bank which shall be nearest to the north-western
angle of the said province of Bensg/lvania, and thence
by a right line to the said north-western angle of the
said province; and thence along the western boundary
of the said province, until it strike the River Ohio;
and along the bank of the said river, westward, to
the banks of the Mississippi, and northward to the
558 14 GEO.3.c.83.——CATHOLICS &PROTESTANTS. [1774.
Not to affect
the boundaries
of any other
colony.
Not to make
void other
rights formerly
granted.
Former pro-
visions made
for the province
to be null and
void after
May 1, 1775.
southern boundary of the territory granted to the
Merchants Adventurers of England, trading to Hud-
son’s Bay; and also all such territories, islands, and
counties, which have, since the 10th February 1763, been
made part of the Government of Newfoundland, be,
and they are hereby, during His Majesty’s pleasure,
annexed to, and made part and parcel of, the province
of Quebec, as created and established by the said
royal proclamation of the 7th October 1763.
2. Provided always, That nothing herein contained,
relative to the boundary of the province of Quebec,
shall in anywise affect the boundaries of any other
colony.
3, Provided always, and be it enacted, That nothing
in this Act shall extend, or be construed to extend,
to make void or to vary or alter any right, title, or
possession, derived under any grant, conveyance, or
otherwise howsoever, of or to any lands within the
said province, or the provinces thereto adjoining; but
that the same shall remain and be in force, and have
effect as if this Act had never been made.
4, “And whereas the provisions, made by the said
proclamation, in respect to the civil government of
the said province of Quebec, and the powers and
authorities given to the Governor and other civil oﬂicers
of the said province, by the grants and commissions
issued in consequence thereof, have been found, upon
experience, to be inapplicable to the state and circum-
stances of the said province, the inhabitants whereof
amotmted, at the conquest, to above 65,000 persons
professing the religion of the Church of Rome, and
enjoying an established form of constitution and system
of laws, by which their persons and property had been
protected, governed, and ordered, for a long series of
years, from the ﬁrst establishment of the said pro-
vince of Canada ” ; be it therefore further enacted by
the authority aforesaid, That the said proclamation,
1774.] 14 eno. 3. <1. 83.—THE PROTESTANTS. 559
so far as the same relates to the said province of
Quebec, and the commission under the authority
whereof the Government of the said province is at
present administered, and all and every the ordinance
and ordinances made by the Governor and Council of
Qaebec for the time being, relative to the civil govern-
ment and administration of justice in the said pro—
vince, and all commissions to judges and other officers
thereof, be, and the same are hereby, revoked, annulled,
and made void, from and after the 1st May 1775.
5, “And, for the more perfect security and ease of Inhabitants of
Quebec may
the minds of the inhabitants of the said province,” it profess the _
is hereby declared, that His Majesty’s subjects, pro-
fessing the religion of the Church of Rome of and in
the said province of Qaebee, may have, hold, and 5 338813;?’
enjoy, the free exercise of the religion of the Church of Rome, subject to the King’s supremacy, declared ' "
and established by an Act, made in the ﬁrst year of
the reign of Queen Elizabeth, over all the dominions
and countries, which then did or thereafter should be-
long, to the Imperial Crown of this realm; and that
the clergy of the said church may hold, receive, and
enjoy, their accustomed dues and rights, with respect
to such persons only as shall profess the said religion.
6, Provided nevertheless, That it shall be lawful for PI'OViSiOH may
be made by Hls
His Majesty, his heirs or successors, to make such Majesty for the
provision out of the rest of the said accustomed dues the
and rights, for the encouragement of the Protestant clergy‘
religion, and for the maintenance and support of a
Protestant clergy within the said province, as he or
they shall, from time to time, think necessary and
expedient.
No person pro-
7. Provided always, and be it enacted, That no per- gssissthe
, . _ .omlsh reli-
SOII, pl'ofessmg the rehgion of the Church of Rome, swn Obllsed to
take the oath of
and residing in the said province, shall be obliged to 1Eliz., but to
take the oath required by the said statute passed in
the ﬁrst year of the reign of Queen Elizabeth, or any ggfhlf‘mowil‘g
560 14 GEO. s. c. 83.—-LAWS or cANADA. [1774.
Persons re-
fusing the oath
to be subject to
the penalties by
AACt 1 EllZ.
His Majesty’s
Canadian sub-
jects (religious
orders ex-
cepted) may
hold all their
possessions,
&c., and in
matters of con-
troversy resort
may be had to
the laws of
Canada for the
decision.
other oath substituted by any other Act in the place
thereof; but that every such person who, by the said
statute, is required to take the oath therein mentioned,
shall be obliged, and is hereby required, to take and
subscribe the following oath before the Governor, or
such other person in such court of record as His
Majesty shall appoint, who are hereby authorized to
administer the same, ridelicet :—-—“ I A.B. do sincerely
promise and swear, that I will be faithful and bear
true allegiance to His Majesty King George, and him
will defend to the utmost of my power, against all
traitorous conspiracies, and attempts whatsoever, which
shall be made against his person, crown, and dignity,
and I will do my utmost endeavour to disclose and
make known to His Majesty, his heirs and successors,
all treasons and traitorous conspiracies, and attempts,
which I shall know to be against him, or any of
them; and all this I do swear without any equivoca-
tion, mental evasion, or secret reservation, and re-
nouncing all pardons and dispensations from any power
or person whomsoever to the contrary. So help me
God.” And every such person, who shall neglect or
refuse to take the said oath before-mentioned, shall
incur and be liable to the same penalties, forfeitures,
disabilities and incapacities, as he would have incurred
and been liable to for neglecting or refusing to take
the oath required by the said statute passed in the ﬁrst
year of the reign of Queen Elizabeth.
8, And be it further enacted by the authority
aforesaid, That all His Maj esty’s Canadian subjects
within the province of Quebec, the religious orders
and communities only excepted, may also hold and
enjoy their property and possessions, together with
all customs and usages relative thereto, and all other
their civil rights, in as large, ample, and beneﬁcial
manner, as if the said proclamation, commissions,
ordinances, and other Acts and instruments had not
been made, and as may consist with their allegiance
1774.] 14 euro. 3. c. 83.—-PROPERTY & CIVIL RIGHTS. 561
to His Majesty, and subjection to the Crown and Par-
liament of Great Britain ; and that in all matters
of controversy relative to property and civil rights,1
resort shall be had to the laws of Canada as the rule
for the decision of the same: and all causes which
shall hereafter be instituted in any of the courts of
justice to be appointed within and for the said pro-
vince by His Majesty, his heirs and successors, shall,
with respect to such property and rights, be deter-
mined agreeably to the said laws and customs of
Canada, until they shall be varied or altered by any
ordinance that shall, from time to time, be passed in
the said province by the Governor, Lieutenant-Governor,
or Commander-in-Chief for the time being, by and with
the advice and consent of the Legislative Council
of the same, to be appointed in manner herein-after
mentioned.2
1 See ante,B. N. A. Act, sec. 92,
sub-sec. l3.
9 See Donegani v. Donegani, in
P. C. 2 Feb. 1835, 3 Knapp 63,
where all the old French edits con-
cerning Canada, and which were
published in Quebec in 1803, are
referred to.
9. Provided always, That nothing in this Act con-
tained shall extend, or be construed to extend, to any
lands which have been granted by His Majesty, or
shall hereafter be granted by His Majesty, his heirs
and successors, to be holden in free and common
socage. ' ‘
10, Provided also, That it shall and may be lawful
to and for every person that is owner of any lands,
goods or credits, in the said province, and that has a
right to alienate the said lands, goods or credits, in
his or her lifetime, by deed of sale, gift, or otherwise,
to devise or bequeath the same at his or her death,
by his or her last will and testament; any law, usage,
or custom heretofore or now prevailing in the pro-
vince to the contrary hereof in anywise notwith-
standing; such will being executed either according to
s 2340. N N
Not to extend
to lands granted
by His Majesty
in common
socage.
Owners of
goods may
alienate the
same by will,
&c., if exe-
cuted accordi 11g
to the laws of
Canada.
562 14 e130. 3. c. 83.--0RIMINAL LAWS. [1774.
Criminal laws
of England to
be continued in
the province.
His Majesty
may appoint a
Council for the
affairs of the
province,
the. laws of' Canada, or according to the forms pre-
scribed by the laws of England. '
11, ‘ And whereas the certainty and lenity of the
criminal law of England, and the beneﬁts and advan-
tages resulting from the use of it, have been sensibly
felt by the inhabitants, from an experience of more
than nine years, during which it has been uniformly
administered ’; be it therefore further enacted by the
authority aforesaid, That the same shall continue to
be administered, and shall be observed as law in the
province of Quebec, as well in the description and
quality of the offence as in the method of prosecution
and trial, and the punishments and forfeitures thereby
inﬂicted, to the exclusion of every other rule of criminal
law, or mode of proceeding thereon, which did or
might prevail in the said province before the year of
our Lord 17 644, anything in this Act to the contrary
thereof in any respect notwithstanding; subject never-
theless to such alterations and amendments as the
Governor, Lieutenant-Governor, or Commander-in-
Chief for the time being, by and with the advice and
consent of the Legislative Council of the said province,
hereafter to be appointed, shall, from time to time,
cause to be made therein, in manner herein-after
directed. '
12, ‘ And whereas it may be necessary to ordain
many regulations for the future welfare and good
government of the province of Quebec, the occasions
of which cannot now be foreseen, nor, without much
delay and inconvenience, be provided for, without in-
trusting that authority, for a certain time and under
proper restrictions, to persons resident there; And
whereas it is at present inexpedient to call an Assem-
bly ’ ; be it therefore enacted by the authority aforesaid,
That it shall and may be lawful for His esty, his
heirs and successors, by warrant under his or their
signet or sign manual, and with the advice of the
1774.]
14 eno. 3. c. 83.—“WELFABE & econ eov'r.” 563
Privy Council, to constitute and appoint a Council for
the affairs of the province of Qaebec, to consist of
such persons resident there, not exceeding twenty-three
nor less than seventeen, as His Majesty, his heirs and
successors, shall be pleased to appoint; and upon the
death, removal, or absence of any of the members of
the said Council, in like manner to constitute and
appoint such and so many other person or persons as
shall be necessary to supply the vacancy or vacancies;
which Council so appointed and nominated, or the
major part thereof, shall have power and authority to
make ordinances for the peace, welfare, and good
government 1 of the said province, with the consent of
His Majesty’s Governor, or, in his absence, of the
Lieutenant-Governor or Commander-in-Chief, for the
time being.
1 See B. N. A. Act, 1867, see. 91, ante, p. 43.
13. Provided always, That nothing in this Act con-
tained shall extend or authorize or empower the said
Legislative Council to lay any taxes or duties within
the said province, such rates and taxes only excepted
as the inhabitants of any town or district within the
said province may be authorized by the said Council
to assess, levy, and apply within the said town or
district, for the purpose of making roads, erecting and
repairing public buildings, or for any other purpose
respecting the local convenience and economy of such
town or district.
14. Provided also, and be it enacted by the authority
aforesaid, That every ordinance so to be made, shall,
within six months, be transmitted by the Governor, or,
in his absence, by the Lieutenant-Governor or Com-
mander-in-Chief, for the time being, and laid before
His Majesty for his royal approbation; and if His
Majesty shall think ﬁt to disallow thereof, the same
shall cease and be void from the time that His
which Council
may make or-
dinances with
consent of the
Governor.
The Council
are not em-
powered to lay
taxes, public
roads or build-
ings excepted.
Ordinances may
be laid before
His Majesty
for his appro-
bation.
N N 2
564 14 GEO. 3. c. sa-INsTITUTIoN or COURTS. [1774.
Majesty’s Order in Council thereupon shall be pro-
mulgated at Quebec.
frdiﬁencesl. 15. Provided also, That no ordinance touching re-
ouc mg re 1- . _ , , , ,
gion not to be hglon, or by wlnch any punishment may be mﬂlcted
in force without 1 a h ﬁ - - 1 h
His Majelsty’s gieatei t an ne and 1mpr1sonment for thIee mont s,
approbatm' shall be of any force or effect, until the same shall
have received His Majesty’s approbation.
ll’ifsazlédjg-be 16, Provided also, That no ordinance shall be passed
passed by a at any meeting of the Council where less than a
maJomy' majority of the whole Council is present, or at any
time except between the 1st day of January and
1st day of May, unless upon some urgent occasion,
in which case every member thereof resident at Quebec,
or within ﬁfty miles thereof, shall be personally sum-
moned by the Governor, or, in his absence, by the
Lieutenant-Governor or Commander-in-Chief, for the
time being, to attend the same.
ﬁggfgﬁg 1'7, And be it further enacted by the authority
Majesty to con- aforesaid, That nothing herein contained shall extend,
stItute courts . .
ofcriminal, or be construed to extend, to prevent or hinder HIs
Majesty, his heirs and successors, by his or their letters
diction- patent under the great seal of Great Britain, from
erecting, constituting, and appointing such courts of
criminal, civil, and ecclesiastical jurisdiction within
and for the said province of Quebec, and appointing,
from time to time, the judges and officers thereof, as
His Majesty, his heirs and successors, shall think
necessary and proper for the circumstances of the
said province.
itlrgcrtgﬁgm 18, Provided always, and it is hereby enacted, That
hereby enforced nothing in this Act contained shall extend, or be con-
withm the . . .
Provinc, strued to extend, to repeal or make void, wlthm the
said province of Quebec, any Act or Acts of the
Parliament of Great Britain heretofore made, for
prohibiting, restraining, or regulating the trade or
commerce of His Maj esty’s colonies and plantations
1774.] 14 (inc. 3. c. ss.--PUBLIC-HOUsE ACT. 5633
in America : but that all and every the said Acts, and
also all Acts of Parliament heretofore made concerning
or respecting the said colonies and plantations, shall
be, and are hereby declared to be, in force within
the said province of Quebec and every part thereof.
14 GEO. s. (1774) c. 88.
Of this Act the whole except sec. 5 was repealed
by S. L: R. Act, 1872, 35 8t 36 Vict. c. 63.; and see
1 8t 2 Will. 4. c. 23.
This was an Act to establish a fund towards further
defraying the charges of administration of justice and
support of the civil government within the province
of Quebec in America.
The preamble and section 1 are given ante, p. 220.
Sec. 2 enacted that the rates and duties charged by
the Act were declared to be sterling money of Great
Britain, and were to be paid to the amount of the
value such nominal sums bear ‘in Great Britain, and
that such moneys might be received according to the
proportion and value of 5s. 6d. the Ounce in silver. The
section then dealt with how the duties are to be levied;
to whom paid; and how to be applied. Sec. 3 con-
tained regulations as to the route goods chargeable with
duty should be brought into the province. Sec. 4
enacted that the penalties and forfeitures inﬂicted
might be sued for in any Court of Admiralty or Vice-
Admiralty having jurisdiction within the said province.
Sec. 5. “ And be it further enacted by the authority
aforesaid, That there shall from and after the 5th day
of April 1775, be raised, levied, collected, and paid,
unto His Majesty’s Receiver-General of the said pro-
vince, for the use of His Majesty, his heirs and suc-
cessors, a duty of one pound sixteen shillings, sterling
money of Great Britain, for every license that shall
be granted by the Governor, Lieutenant-Governor, or
Commander-in-Chief of the said province to any person
Any person
keeping a house
of public enter-
tainment to pay
:81 168. for a
license.
or persons for keeping a house or any other place of r
566 31 GEO. 3. C. 31.—GANADA’S CHARTER. [1791.
G
Preamb 1e.
14 Geo. 3. c. 83.
recited.
public entertainment, or for the retailing wine, brandy,
rum, or any other spirituous liquors, within the said
province; and any person keeping any such house or
place of entertainment, or retailing any such liquors,
without a license, shall forfeit and pay the sum of
£10 for every such offence, upon conviction thereof;
one moiety to such person as shall inform or prosecute
for the same, and the other moiety shall be paid into
the hands of the Receiver-General of the province for
the use of His Majesty.”
Sec. 6 enacted that nothing contained in the Act
was to make void any part of the territorial or casual
revenues, ﬁnes, rents, or proﬁts reserved to the French
King and surrendered at the conquest to the King
of Great Britain.
Sec. 7 contained an indemnity against anything done
in pursuance of the Act.
31 GEC. 3. (1791) c. 31.
The whole Act was repealed except secs. 38, 39, a0,
43, 4144, and 45, by S. L. R. Act, 1872, 35 & 36 Vict.
c. 63.; and see3 &,41Vict. c. 35. s. 2. By sec. 11 of 3 8: l
Vict. c. 78., so much of this Act as relates to any
reservation of land hereafter to be made in Upper or
Lower Canada for the support and maintenance of a
Protestant clergy was repealed. This Act has been
called the Constitutional Charter of the Canadas. It
is given in full :—
An Act to repeal certain parts of an Act, passed
in the fourteenth year of His Majesty’s reign,
intituled, “ An Act for making more effectual
provision for the Government of the Province of
Quebec in North America,” and to make fur-
ther provision for the Government of the said
Province.
W HEREAS an Act was passed in the fourteenth year
of the reign of His present Majesty, intituled, “ An
Act for making more effectual provision for the Govern—
1791.] 31 GEO. 3. Q. 31.--PEACE & GOOD eovr. 567
ment of the Province of Quebec in North America”;
‘And whereas the said Act is in many respects inapplicable
to the present condition and circumstances of the said
province; And whereas it is expedient and necessary
that further provision should now be made for the
good government and prosperity thereof ’ : May it there-
fore please Your most Excellent Majesty that it may
be enacted; and be it enacted by the King’s most
Excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority
of the same, That so much of the said Act as in any
manner relates to the appointment of a Council for
the affairs of the said province of Quebec, or to the
power given by the said Act to the said Council, or
to the major part of them, to make ordinances for
the peace, welfare, and good government of the said
province, with the consent of His Majesty’s Governor,
Lieutenant-Governor, or Commander-in-Chief for the
time being, shall be, and the same is hereby repealed.
2. ‘ And whereas His Majesty has been pleased to
signify, by his message to both Houses of Parliament,
his royal intention to divide his province of Quebec
into two separate provinces, to be called The Province
of Upper Canada and The Province of Lower Canada ’:
be it enacted by the authority aforesaid, That there
shall be within each of the said provinces respectively a
Legislative Council, and an Assembly, to be severally
composed and constituted in the manner hereinafter
described; and that in each of the said provinces re-
spectively His Majesty, his heirs or successors, shall
have power, during the continuance of this Act, by and
with the advice and-consent of the Legislative Council
and Assembly of such provinces - respectively, to make
laws for the peace, welfare, and good government
thereof, such laws not being repugnant to this Act;
and that all such laws, being passed by the Legislative
Council and Assembly of either of the said provinces
So much of re-
cited Act as
relates to the
appointment of
a Council for
Quebec, or its
powers, re-
pealed.
Within each of
the intended
provinces a
Legislative
Council and As-
sembly to be
constituted, by
whose advice
His Majesty
may make laws
for the govern-
ment of the
province.
568 31 GEO. 3.c.3l.—LEGISLATIVE COUNCIL. [1791.
His Majesty
may authorize
the Governor,
or Lieutenant-
Governor, of
each province
to summon
members to the
Legislative
Council.
respectively, and assented to by His Majesty, his heirs
or successors, or assented to in His Majesty’s name, by
such person as His Majesty, his heirs or successors, shall
from time to time appoint to be the Governor, or
Lieutenant-Governor, of such province, or by such
person as His Majesty, his heirs or successors, shall
from time to time appoint to administer the government
within the same, shall be, and the same are hereby
declared to be, by virtue of and under the authority of
this Act, valid and binding to all intents and purposes
whatever, within the province in which the same shall
have been so passed.
3. And be it further enacted by the authority afore-
said, That for the purpose of constituting such Legis-
lative Council as aforesaid in each of the said provinces
respectively, it shall and may be lawful for His Majesty,
his heirs or successors, by an instrument under his or
their sign manual, to authorize and direct the Governor
or Lieutenant-Governor, or person administering the
government in each of the said provinces respectively,
within the time herein-after mentioned, in His Majesty’s
name, and by an instrument under the great seal of
such province, to summon to the said Legislative Coun-
cil, to be established in each of the said provinces re-
spectively, a sufﬁcient number of discreet and proper
persons, being not fewer than seven to the Legislative
Council for the province of Upper Canada, and not
fewer than ﬁfteen to the Legislative Council for the
province of Lower Canada ; and that it shall also be
lawful for His Majesty, his heirs or successors, from
time to time, by an instrument under his or their sign
manual, to authorize and direct the Governor or Lieu-
tenant-Governor, or person administering the govern-
ment in each of the said provinces respectively, to
summon to the Legislative Cotmcil of such province, in
like manner, such other person or persons as His Ma-
jesty, his heirs or successors, shall think ﬁt; and that
every person who shall be so summoned to the Legis-
1791.] 31 GEO. 3. c. 31.-'—HEREDITARY sEATs. 569
lative Council of either of the said provinces respectively,
shall thereby become a member of such Legislative
Council to which he shall have been so summoned.
4:. Provided alwavs, and be it enacted by the authority No person _
. . a , under 21 years
aforesaid, That no person shall be summoned to the sald of age, (he. to
Legislative Council, in either of the said provinces, who be summoned'
shall not be of the full age of twenty-one years, and a
natural-born subject of His Majesty, or a subject of His
Majesty naturalized by Act of the British Parliament,
or a subject of His Majesty, having become such by the
conquest and cession of the province of Canada.
.5. And be it further enacted by the authority afore- gems
said, That every member of ‘each of the said Legislatlve for life.
Councils shall hold his seat therein for the term of his
life, but subject nevertheless to the provisions herein-
after contained for vacating the same, in the cases
hereinafter speciﬁed.
.6. And be it further enacted by theauthority afore-
said, That whenever HIs Majesty, lllS heirs or successors, hereditarytitlcs
- - of honour the
shall tlnnk proper to confer upon any subject of the righmf being.
Crown of Great Britain, by letters patent under the
great seal of either of the said provinces, any hereditary tive Council-
title of honour, rank, or dignity of such province, de-
scendible according to any course of descent limited in
such letters patent, it shall and may be lawful for His
Majesty, his heirs or successors, to annex thereto, by
the said letters patent, if His Majesty, his heirs or suc-
cessors, shall so think ﬁt, an hereditary right of being
summoned to the Legislative Council of such province,
descendible according to the course of descent so limited
with respect to such title, rank, or dignity; and that
every person on whom such right shall be so conferred,
or to whom such right shall severally so descend, shall
thereupon be entitled to demand from the Governor,
Lieutenant-Governor, or person administering the go-
vernment of such province, his writ of summons to
such Legislative Council, at any time after he shall
570 31 sec. 3. c. 31.—VACANCIES IN COUNCIL. [1791.
Such descend-
ible right for-
feited, and
seats in Coun-
cil vacated 1n
certain cases.
have attained the age of twenty-one years, subject
nevertheless to the provisions herein-after contained.
'7. Provided always, and be it further enacted by the
authority aforesaid, That when and so often as any
person to whom such hereditary right shall have de-
scended shall, without the permission of His Majesty,
his heirs or successors, signiﬁed to the Legislative
Council of the province by the Governor, Lieutenant-
Governor, or person administering the government there,
have been absent from the said province for the space of
four years continually, at any time between the date of
his succeeding to such right and the time of his apply-
ing for such writ of summons, if he shall have been of
the age of twenty-one years or upwards at the time of
his so succeeding, or at any time between the date of
his attaining the said age and the time of his so
applying, if he shall not have been of the said age at
the time of his so succeeding; and also when and so
often as any such person shall at any time, before his
applying for such writ of summons, have taken any
oath of allegiance or obedience to any foreign prince or
power, in every such case such person shall not be
entitled to receive any writ of summons to the Legis-
lative Council by virtue of such hereditary right, unless
His Majesty, his heirs or successors, shall at any time
think ﬁt, by instrument under his or their sign manual,
to direct that such person shall be summoned to the
said Council; and the Governor, Lieutenant-Governor,
or person administering the government in the said
provinces respectively, is hereby authorized and required,
previous to granting such writ of summons to any
person so applying for the same, to interrogate such
person upon oath touching the said several particulars,
before such Executive Council as shall have been ap-
pointed by His Majesty, his heirs or successors, within
such province, for the affairs thereof.
- 8. Provided also, and be it further enacted by the au-
thority aforesaid, That if any member of the Legislative
1791.] :31 eno. s. c. 31.-ALIEN LEGISLATORS. 571
Councils of either of the said provinces respectively shall
leave such province, and shall reside out of the same
for the space of four years continually, without the
permission of His Majesty, his heirs or successors, sig-
niﬁed to such Legislative Cormcil by the Governor or
Lieutenant-Governor, or person administering His Ma-
jesty’s government there, or for the space of two years
continually, without the like permission, or the per-
mission of the Governor, Lieutenant-Governor, or person
administering the government of such province, signiﬁed
to such Legislative COLUlCll in the manner aforesaid;
or if any such member shall take any oath of allegiance
or obedience to any foreign prince or power; his seat in
such Council shall thereby become vacant.
9. Provided also, and be it further enacted by the Hjﬁdit-Hl‘lr t
. . . , _ r1 1 sanc sea s
authorlty aforesald, That in every case where a wr1t of sobforfeited 01-
~ - - _ vacated to re-
summons to such Legislatlve Councll shall have been minsuspendcd
' . . q ., during the lives
lawfully wlthheld from any pe1 son to whom such he1 e- ofthespartjes,
dltary right as aforesa1d shall have descended, by reason but 011 “161?
D ‘ _ 0 _ deaths to go to
of such absence from the provmce as aforesald, or of h1s thepersonsnext
having taken an oath of allegiance or obedience to any entltledthemto'
foreign prince or power, and also in every case where
the seat in such Council of any member thereof, having
such hereditary right as aforesaid, shall have been
vacated by reason of any of the causes herein-before
speciﬁed, such hereditary right shall remain suspended
during the life of such person, unless His Majesty, his
heirs or successors, shall afterwards think ﬁt to direct
that he be summoned to such Council; but that on the
death of such person such right, subject to the provi-
sions herein contained, shall. descend to the person who
shall next be entitled thereto, according to the course of
descent limited in the letters patent by which the same
shall have been originally conferred.
Seats in Coun-
10. Provlded also, and be it further enacted by the cildfgrfeiﬁeg,
- O . 0 an ETC 1 8,1‘
authority aforesaid, That if any member of elther of the rights extin- y
said Legislatlve Councils shall be attalnted for treason 535,3‘, f°l
572 31 GEO. 3. c. 31.—APPEAL T0 ENG. PAEL. [1791.
Questions re-
specting the
right to be
summoned to
Council, &c.
to be deter-
mined as here-
in mentioned.
The Governor
of the province
may appoint
and remove the
Speaker.
His Majesty
may authorize
in any court of law within any of His Majesty’s domi-
nions, his seat in such Council shall thereby become
vacant, and any such hereditary right as aforesaid then
vested in such person, or to be derived to any other
persons through him, shall be utterly forfeited and
extinguished.
11, Provided also, and be it further enacted by the
authority aforesaid, That whenever any question shall
arise respecting the right of any person to be summoned
to either of the said Legislative Councils respectively, or
respecting the vacancy of the seat in such Legislative
Council of any person having been summoned thereto,
every such question shall, by the Governor or Lieu-
tenant-Governor of the province, or by the person ad-
ministering the government there, be referred to such
Legislative Cotmcil, to be by the said Council heard and
determined ; and that it shall and may be lawful either
for the person desiring such writ of summons, or re-
specting whose seat such question shall have arisen, or
for His Majesty’s Attorney-General of such province in
His Majesty’s name, to appeal from the determination
of the said Council, in such case, to His Majesty in his
Parliament of Great Britain ; and that the judgment
thereon of His Majesty in his said Parliament shall be
ﬁnal and conclusive to all intents and purposes what-
ever.
12, And be it further enacted by the authority afore-
said, That the Governor or Lieutenant-Governor of the
said provinces respectively, or the person administering
His Majesty’s government therein respectively, shall
have power and authority from time to time, by an
instrument under the great seal of such province, to
constitute, appoint, and remove the Speakers of the
Legislative Councils of such provinces respectively.
13. And be it further enacted by the authority afore-
the Governorto said, That, for the purpose of constituting such Assem-
call ‘together
the Assembly,
bly as aforesaid, ‘in each, of the said, provinces respec-
1791.] 31GEO.3.c.31.--SU1\1MON1NG ASSEMBLY. 57s
tively, it shall and may be lawful for His Majesty, his
heirs or successors, by an instrument under his or their
sign manual, to authorize and direct the Governor or
Lieutenant-Governor, or person administering the go-
vernment in each of the said provinces respectively,
within the time herein-after mentioned, and thereafter
from time to time, as occasion shall require, in His
Majesty’s name, and by an instrument under the great
seal of such province, to summon and call together an
Assembly in and for such province.
14, And be it further enacted by the authority afore-
said, That, for the purpose of electing the members of
such Assemblies respectively, it shall and may be lawful
for His Majesty, his heirs or successors, [ital instru-
ment under his or their sign manual, to authorize the
Governor or Lieutenant-Governor of each of the said
provinces respectively, or the person administering the
government therein, within the time herein-after men-
tioned, to issue a proclamation dividing such province
into districts, or counties, or circles, and towns or
townships, and appointing the limits thereof, and de-
claring and appointing the number of representatives to
be chosen by each of such districts, or counties, or
circles, and towns or townships respectively; and that
it shall also be lawful for His Majesty, his heirs or
successors, to authorize such Governor or Lieutenant-
Governor, or person administering the government,
from time to time to nominate and appoint proper
persons to execute the ofﬁce of returning ofﬁcer in each
of the said districts, or counties, or circles, and towns or
townships respectively; and that such division of the
said provinces into districts, or counties, or circles, and
towns or townships, and such declaration and appoint-
ment of the number of representatives to be chosen by
each of the said districts, or counties, or circles, and
towns or townships respectively, and also such nomi-
nation and appointment of returning officers in the
same, shall be valid and cﬁectual to all the purposes
and, for the
purpose of
electing the
members, to
issue a procla-
mation dividing
the province
into districts,
the
574 31GEO.3.c.31.-RETURNI-NG OFFICERS. [1791.
Power of the
Governor to
appoint return-
ing officers, to
continue two
years from the
commencement
of this Act.
N 0 person ob-
liged to serve
as returning
officer more
than once, un-
less otherwise
provided by an
Act of the
province.
Number of
members in
each province.
Regulations for
issuing writs
for the election
of members to
serve in the
Assemblies.
of this Act, unless it shall at any time be otherwise
provided by any Act of the Legislative Council and
Assembly of the province, assented to by His Majesty,
his heirs or successors.
15. Provided nevertheless, and be it further enacted
by the authority aforesaid, That the provision herein-
before contained, for empowering the Governor, Lieu-
tenant-Governor, or person administering the govern-
ment of the said provinces respectively, under such
authority as aforesaid from His Majesty, his heirs or
successors, from time to time, to nominate and appoint
proper persons to execute the office of returning officer
in the said districts, counties, circles, and towns or
townships, shall remain and continue in force in each
of the said provinces respectively, for the term of two
years, from and after the commencement of this Act,
within such province, and no longer; but subject,
nevertheless, to be sooner repealed or varied by any
Act of the Legislative Council and Assembly of the
province, assented to by His Majesty, his heirs or
successors.
16, Provided always, and be it further enacted by
the authority aforesaid, That no person shall be obliged
to execute the said oflice of returning ofﬁcer for any
longer time than one year, or oftener than once, unless it
shall at any time be otherwise provided by any Act of
the Legislative Council and Assembly of the province,
assented to by His Majesty, his heirs or successors.
17. Provided also, and be it enacted by the authority
aforesaid, That the whole number of members to be
chosen in the province of Upper Canada shall not be
less than sixteen, and that the whole number of mem-
bers to be chosen in the province of Lower Canada
shall not be less than ﬁfty.
18, And be it further enacted by the authority afore-
said, That writs for the election of members to serve in
the said Assemblies respectively shall be issued by the
1791.] 31 GEO. 3. c. 31._wnrrs. 575
Governor, Lieutenant-Governor, or person administering
His Majesty’s government within the said provinces
respectively, within fourteen days after the sealing of
such instrument as aforesaid for summoning and call-
ing together such Assembly, and that such writs shall
be directed to the respective returning ofﬁcers of the
said districts, or counties, or circles, and towns or town-
ships, and that such writs shall be made returnable
within ﬁfty days at farthest from the day on which they
shall bear date, unless it shall at any time be otherwise
provided by any Act of the Legislative Council and
Assembly of the province, assented to by His Majesty,
his heirs or successors; and that writs shall in like
manner and form be issued for the election of members
in the ease of any vacancy which shall happen by the
death of the person chosen, or by his being summoned
to the Legislative Council of either province, and that
such writs shall be made returnable within ﬁfty days at
farthest from the day 011 which they shall bear date,
unless it shall at any time be otherwise provided by any
Act of the Legislative Council and Assembly of the pro-
vince, assented to by His Majesty, his heirs or suc-
cessors ; and that in the case of any such vacancy which
shall happen by the death of the person chosen, or by
reason of his being so summoned as aforesaid, the writ
for the election of a new member shall be issued within
six days after the same shall be made known to the
proper office for issuing such writs of election.
19, And be it further enacted by the authority
aforesaid, That all and every the returning officers so
appointed as aforesaid, to whom any such writs as
aforesaid shall be directed, shall, and they are hereby
authorized and required duly to execute such writs.
20, And be it further enacted by the authority afore-
Returning
ofﬁcers to
execute writs.
By whom the
members are to
said, That the members for the several districts, or be'chosen.
counties, or circles of the said provinces respectively,
shall be chosen by the majority of votes of such persons
576 31GEO.3.c.31.-NON-ELIGIBLE reasons. [1791.
Certain persons
not eligible to
the Assemblies.
No person
under 21 years
of age, &c.
capable of
voting or being
elected;
as shall severally be possessed, for their own use and
beneﬁt, of lands or tenements within such district, or
county, or circle, as the case shall be, such lands
being by them held in freehold, or in ﬁef, or in roture,
or by certiﬁcate derived under the authority of the Go-
vernor and Council of the province of Quebec, and
being of the yearly value of forty shillings sterling, or
upwards, over and above all rents and charges payable
out of or in respect of the same; and that the mem-
bers for the several towns or townships within the said
provinces respectively shall be chosen by the majority
of votes of such persons as either shall severally be
possessed, for their own use and beneﬁt, of a dwelling
house and lot of ground in such town or township,
such dwelling house and lot of ground being by them
held in like manner as aforesaid, and being of. the yearly
value of ﬁve pounds sterling, or upwards, or, as having
been resident within the said town or township for the
space of twelve calendar months neXt before the date
of the writ of summons for the election, shall bond
ﬁde have paid one year’s rent for the dwelling house
in which they shall have so resided, at the rate of ten
pounds sterling per annum, or upwards.
21. Provided always, and be it further enacted by
the authority aforesaid, That no person shall be capable
of being elected a member to serve in either of the
said Assemblies, or of sitting or voting therein, who
shall be a member of either of the said Legislative
Councils to be established as aforesaid in the said two
provinces, or who shall be a minister of the Church of
England, or a minister, priest, ecclesiastic, or teacher,
either according to the rites of the Church of Rome, or
under any other form or profession of religious faith or
worship.
22. Provided also, and be it further enacted by the
authority aforesaid, That no person shall be capable of
voting at any election of a member to serve in such
Assembly, in either of the said provinces, or of being
1791.] 31 (inc. 3. c. 31.--AGE or VOTER. 577
elected at any such election, who shall not be of the full
age of twenty-one years, and a natural-born subject
of His Majesty, or a subject of His Majesty naturalized
by Act of the British Parliament, or a subject of His
Majesty, having become such by the conquest and cos-
sion of the province of Canada.
23. And be it also enacted by the authority afore- dpfegf'm
said, That no person shall be capable of voting at any treason or
election of a member to serve in such Assembly, in felony
either of the said provinces, or of being elected at any
such election, who shall have been attainted for treason
or felony in any court of law within any of His
Majesty’s dominions, or who shall be within any de-
scription of persons disqualiﬁed by any Act of the Legis-
lative Council and Assembly of the province, assented‘
to by His Majesty, his heirs or successors.
24-, Provided also, and be it further enacted by the 123w
authority aforesaid, That every voter, before he is ad- the following
mitted to give his vote at any such election, shall, if
required by any of the candidates, or by the returning
ofﬁcer, take the following oath, which shall be admin-
istered in the English or French language, as the case
may require :
“ I A. B. do declare and testify, in the presence of Oath’
Almighty God, that I am, to the best of my knowledge
and belief, of the full ago of twenty-one years, and that
I have not voted before at this election.”
And that every such person shall also, if so required 2251100 ’;‘,f§;ar_
as aforesaid, make oath, previous to his being admitted Zicggjdherein
to vote, that he is, to the best of his knowledge and p '
belief, duly possessed of such lands and tenements, or
of such a dwelling house and lot of ground, or that he
has bondﬁde been so resident, and paid such rent for
his dwelling house, as entitles him, according to the
provisions of this Act, to give his vote at such election
for the county, or district, or circle, or for the town or
township for which he shall offer the same.
s 2310. o o
578 31 GEO. c. 31.—ELECTIONS. [1791.
His Majesty
may authorize
the Governor
to ﬁx the time
and place of
holding elec-
tions,
and of holding
the sessions of
the Council
and Assembly,
&c.
Council and
Assembly to be
called together
once in 12
months, &c.,
and all ques-
tions therein to
be decided by
the majority of
votes.
25, And be it further enacted by the authority afore-
said, That it shall and may be lawful for His Majesty,
his heirs or successors, to authorize the Governor or
Lieutenant-Governor, or person administering the go-
vernment within each of the said provinces respectively,
to ﬁx the time and place of holding such elections,
giving not less than eight days’ notice of such time,
subject nevertheless to such provisions as may hereafter
be made in these respects by any Act of the Legislative
Council and Assembly of the province, assented to by
His Majesty, his heirs or successors.
26, And be it further enacted by the authority
aforesaid, That it shall and may be lawful for His Ma-
jesty, his heirs or successors, to authorize the Governor
or Lieutenant-Governor of each of the said provinces re-
spectively, or the person administering the government
therein, to ﬁx the places and times of holding the ﬁrst
and every other session of the Legislative Council and
Assembly of such province, giving due and sufficient
notice thereof, and to prorogue the same from time to
time, and to dissolve the same, by proclamation or
otherwise, whenever he shall judge it necessary or
expedient.
2'7, Provided always, and be it enacted by the
authority aforesaid, That the said Legislative Council
and Assembly, ‘in each of the said provinces, shall be
called together once at the least in every twelve cal-
endar months, and that every Assembly shall continue
for four years from the day of the return of the writs
for choosing the same, and no longer, subject neverthe-
less to be sooner prorogued or dissolved by the Governor
or Lieutenant-Governor of the province, or person ad-
ministering His Maj esty’s government therein.
28, And be it further enacted by the authority afore-
said, That all questions which shall arise in the said
Legislative Councils or Assemblies respectively shall be
decided by the majority of voices of such members as
1791.] 31 GEO. 3. c. 31.--C()NSENT TO BILLS. 579
shall be present ; and that in all cases where the voices
shall be equal, the Speaker of such Council or Assembly,
as the case shall be, shall have a casting voice.
29, Provided always, and be it enacted by the authority aforesaid, That no member, either of the has taken
Legislative Council or Assembly, in either of the said the followmg
provinces, shall be permitted to sit or to vote therein
until he shall have taken and subscribed the following
oath, either before the Governor or Lieutenant-Governor
of such province, or person administering the govern-
ment therein, or before some person or persons autho-
rized by the said Governor or Lieutenant-Governor, or
other person as aforesaid, to administer such oath, and
that the same shall be administered in the English or
French language, as the case shall require.
[Then follows the same oath as contained in let Geo. 3. Oath.
c. 83., ante p. 560, except that there was added after the
words “ King George” the words “as lawful sovereign of
the kingdom of Great Britain, and of these provinces
dependent on and belonging to the said kingdom.”]
30. And be it further enacted by the authority Giovernolﬂmy
, _ , give or with-
aforesaid, That whenever any Bill which has been 1101a His Ma-
. . . 'est ’s assent to
passed by the Legislative Council, and by the House of ‘@3113; pqssedty
Assembly, in either of the said provinces respectively, the Leg‘slame
Council and
shall be presented, for His Majesty’s assent, to the Assembly, or
reserve them
Governor or Lieutenant-Governor of such province, or for _His
. . . . . , Majesty’s plea—
to the person administering His Majesty s government Sure,
therein, such Governor or Lieutenant—Governor, or
person administering the government, shall, and he is
hereby authorized and required to declare, according to
his discretion, but subject nevertheless to the provisions
contained in this Act, and to such instructions as may
from time to time be given in that behalf by His
Majesty, his heirs or successors, that he assents to such
Bill in His Majesty’s name, or that he withholds His
Majesty’s assent from such Bill, or that he reserves
such Bill for the signiﬁcation of His Majesty’s pleasure
thereon.
002
580 31 also. 3. c. 31.—RESERVED BILLS. . [1791.
Governor to
transmit to the
Secretary of
State copies of
such Bills as
have been as-
sented to, which
His Majesty in
Council may
declare his dis-
allowance of
within two
years from the
receipt.
Bills reserved
for His Ma—
jesty’s pleasure
not to have any
force till his
Maj esty’s assent
be communi-
cated to the
Council and
Assembly, &c.
31. Provided always, and be it further enacted by
the authority aforesaid, That whenever any Bill, which
shall have been so presented for His Majesty’s assent to
such Governor, Lieutenant-Governor, or person ad-
ministering the government, shall, by such Governor,
Lieutenant-Governor, or person administering the go-
vernment, have been assented to in His Majesty’s
name, such Governor, Lieutenant-Governor, or person
as aforesaid, shall, and he is hereby required, by the
ﬁrst convenient opportunity, to transmit to one of His
Majesty’s principal Secretaries of State an authentic
copy of such Bill so assented to; and that it shall and
may be lawful, at any time within two years after such
Bill shall have been so received by such Secretary of
State, for His Majesty, his heirs or successors, by his or
their Order in Council, to declare his or their disallow-
ance of such Bill, and that such disallowance, together
with a certiﬁcate, under the hand and seal of such
Secretary of State, testifying the day on which such Bill
was received as aforesaid, being signiﬁed by such Go-
vernor, Lieutenant-Governor, or person administering
the government, to the Legislative Council and As-
sembly of such province, or by proclamation, shall
make void and annul the same, from and after the date
of such signiﬁcation.
32, And be it further enacted by the authority
aforesaid, That no such Bill, which shall be so reserved
for the signiﬁcation of His Majesty’s pleasure thereon,
shall have any force or authority within either of the
said provinces respectively, until the Governor or Lieu-
tenant-Governor, or person administering the govern-
ment, shall signify, either by speech or message, to the
Legislative Council and Assembly of such province, or
by proclamation, that such Bill has been laid before
His Majesty in Council, and that His Majesty has been
pleased to assent to the same; and that an entry shall
be made, in the journals of the said Legislative Council,
of every such speech, message, or proclamation; and a
1791.] 31 GEO. 3. c. 31.—OLD LAWS. 581
duplicate thereof, duly attested, shall be delivered to
the proper officer, to be kept amongst the public
records of the province: And that no such Bill, which
shall be so reserved as aforesaid, shall have any force or
authority within either of the said provinces respec-
tively, unless His Majesty’s assent thereto shall have
been so signiﬁed as aforesaid, within the space of two
years from the day on which such Bill shall have been
presented for His Majesty’s assent to the Governor,
Lieutenant-Governor, or person administering the go-
vernment of such province.
33. And be it further enacted by the authority
aforesaid, That all laws, statutes, and ordinances, which
shall be in force on the day to be ﬁxed in the manner
herein—after directed for the commencement of this Act,
within the said provinces, or either of them, or in any
part thereof respectively, shall remain and continue to
be of the same force, authority, and effect, in each of
the said provinces respectively, as if this Act had not
been made, and as if the said province of Quebec had
not been divided; except in so far as the same are
expressly repealed or varied by this Act, or in so far as
the same shall or may hereafter, by virtue of and
under the authority of this Act, be repealed or varied
by His Majesty, his heirs or successors, by and with the
advice and consent of the Legislative Councils and
Assemblies of the said provinces respectively, or in so
far as the same may be repealed or varied by such
temporary laws or ordinances as may be made in the
manner hereinafter speciﬁed.
34:. And whereas by an ordinance passed in the
province of Quebec, the Governor and Council of the
said province were constituted a court of civil juris-
diction, for hearing and determining appeals in certain
cases therein speciﬁed, be it further enacted by the
authority aforesaid, That the Governor, or Lieutenant-
Governor, or person administerhig the government of
each of the said provinces respectively, together with
Laws in force
at the com-
mencement of
this Act to con--
tinue so, except
repealed or
varied by it, &c.
Establishment
of a court of
civil jurisdic-
tion in each
province.
582 31 GEO. 3. c. 31.—CIVIL COURTS. [1791.
such Executive Council as shall be appointed by His
Majesty for the affairs of such province, shall be a
court of civil jurisdiction within each of the said pro-
vinces respectively, for hearing and determining appeals
within the same, in the like cases, and in the like
manner and form, and subject to such appeal there-
from, as such appeals might before the passing of this
Act have been heard and determined by the Governor
and Council of the province of Quebec; but subject,
nevertheless, to such further or other provisions as may
be made in this behalf, by any Act of the Legislative
Cotmcil and Assembly of either of the said provinces
respectively, assented to by His Majesty, his heirs or
successors.
:ﬁgfggé, 35, And whereas, by the above-mentioned Act,
passed in the fourteenth year of the reign of His
present Majesty, it was declared, That the clergy of
the Church of Rome, in the province of Quebec, might
hold, receive, and enjoy their accustomed dues and
rights, with respect to such persons only as should
profess the said religion; provided, nevertheless, that
it should be lawful for His Majesty, his heirs or suc-
cessors, to make such provision out of the rest of the
said accustomed dues and rights for the encouragement
of the Protestant religion, and for the maintenance and
support of a Protestant clergy1 within the said province,
as he or they should from time to time think necessary
and expedient: And whereas by His Majesty’s royal
of) instructions, given under His Majesty’s royal sign
Sir Guy Carle- manual on the third day of January, in the year of our
ton’ 850" and Lord one thousand seven hundred and seventy-ﬁve, to
Guy Carleton, Esquire, now Lord Dorchester, at that
time His Majesty’s Captain-General and Governor-in-
Chief in and over His Majesty’s province of Quebec, His
Majesty was pleased, amongst other things, to direct
“ That no incumbent professing the religion of the
1 See Lord Mansﬁeld on this section, &c. 53, Hansard (3 series),
7 April and 4 May 1840; 72 Lords’ Journals, 224, 254.
1791.] 31GEO.3.e.31.—GOVERNOR’S INSTRUCTIONS. 583
Church of Rome, appointed to any parish in the said
province, should be entitled to receive any tithes for
lands or possessions occupied by a Protestant, but that
such tithes should be received by such persons as the
said Guy Carleton, Esquire, His Majesty’s Captain-
General and Governor-in-Chief in and over His Majesty’s
said provinceof Quebec, should appoint, and should be
reserved in the hands of His Majesty’s Receiver-General
of the said province, for the support of a Protestant
clergy in His Majesty’s said province, to be actually
resident within the same, and not otherwise, according
to such directions as the said Guy Carleton, Esquire,
His Maj esty’s Captain-General and Governor-in-C'hief in
and over His Majesty’s said province, should receive
from His Majesty in that behalf; and that in like
manner all growing rents and proﬁts of a vacant beneﬁce
should, during such vacancy, be reserved for and applied
to the like uses ” : And whereas His Maj esty’s pleasure
has likewise been signiﬁed to the same effect in His
Majesty’s royal instructions, given in like manner to
Sir Frederick Haldimand, knight of the most honourable
Order of the Bath, late His Majesty’s Captain-General
and Governor-in-Chief in and over His Majesty’s said
province of Quebec ; and also in His Majesty’s royal iii-
structions, given in like manner to the said Right
Honourable Guy Lord Dorchester, now His Majesty’s
Captain-General and Governor-in-Chief in and over His
Majesty’s said province of Quebec ,' be it enacted by the
authority aforesaid, That the said declaration and provi-
sion contained in the said above-mentioned Act, and
also the said provision so made by His Majesty in con-I
sequence thereof, by his instructions above recited, shall
remain and continue to be of full force and effect in each
of the said two provinces of Upper Canada and Lower
Canada respectively, except in so far as the said declara-
tion and provisions respectively, or any part thereof, shall
be expressly varied or repealed by any Act or Acts which
may be passed by the Legislative Council and Assembly
of the said provinces respectively, and assented to by His
Instructions to
Sir Frederick
Haldimand and
to Lord Dor-
chester, re-
cited ;
and the decla-
ration and pro-
visions therein
respecting the
clergy of the
Church of
Rome to con-
tinue in force.
584 31 also. 3. c. 31.—PROTESTANT GLERGY.
[1791.
His Majesty’s
message to
Parliament
recited.
His Majesty
may authorize
the Governor to
make allot-
ments of lands
for the support
of a Protestant
clergy in each
province;
Majesty, his heirs or successors, under the restriction
herein-after provided.
36, And whereas His Majesty has been graciously
pleased, by message to both Houses of Parliament, to
express his royal desire to be enabled to make a per-
manent appropriation of lands in the said provinces, for
the support and maintenance of a Protestant clergy
within the same, in proportion to such lands as have
been already granted within the same by His esty :
And whereas His Majesty has been graciously pleased,
by his said message, further to signify his royal desire
that such provision may be made, with respect to all
future grants of land within the said provinces respec-
tively, as may best conduce to the due and sufficient
support and maintenance of a Protestant clergy within
the said provinces, in proportion to such increase as may
happen in the population and cultivation thereof : There-
fore, for the purpose of more effectually fulﬁlling His
Majesty’s gracious intentions as aforesaid, and of pro-
viding for the due execution of the same in all time to
come, be it enacted by the authority aforesaid, That it
shall and may be lawful for His Majesty, his heirs or
successors, to authorize the Governor or Lieutenant-
Governor of each of the said provinces respectively, or
the person administering the government therein, to
make, from and out of the lands of the Crown within
such provinces, such allotment and appropriation of
lands, for the support and maintenance of a Protestant
clergy within the same, as may bear a due proportion to
the amount of such lands within the same as have at any
time been granted by or under the authority of His
Maj estylz And that whenever any grant of lands within
either of the said provinces shall hereafter be made, by or
under the authority of His Majesty, his heirs or succes-
sors, there shall at the same time be made, in respect of
the same, a proportionable allotment and appropriation of
lands for the above-mentioned purpose, within the town-
1 Repealed by sec. 11, 3 & 4 Vict. c. 78. See 16 & 17 Vict. c. 21.
1791.] 31 GEO. 3. c. 31.-OLERGY LANDS. 585
ship or parish toWhich such lands so to be granted shall
appcrtain or be annexed, or as nearly adjacent thereto
‘as circumstances Will admit; and that no such grant
shall be valid or effectual unless the same shall contain a
speciﬁcation of the lands so allotted and appropriated, in
respect of the lands to be thereby granted; and that such
lands, so allotted and appropriated, shall be, as nearly as
the circumstances and nature of the case Will admit, of
the like quality as the lands in respect of Which the same
are so allotted and appropriated, and shall be, as nearly
as the same can be estimated at the time of making such
grant, equal in value to the seventh part of the lands so
granted.
4 37. And be it further enacted by the authority afore-
said, That all and every the rents, proﬁts or emoluments,
Which may at any time arise from such lands so allotted
and appropriated as aforesaid, shall be applicable solely
to the maintenance and support of a Protestant clergy
Within the province in Which the same shall be situated,
and to no other use or purpose Whatever.
38,1 And be it further enacted by the authority afore-
said, That it shall and may be lawful for His Majesty,
his heirs or successors, to authorize the Governor or
Lieutenant-Governor of each of the said provinces respec-
tively, or the person administering the government
therein, from time to time, With the advice of such
Executive Council as shall have been appointed by His
Majesty, his heirs or successors, Within such province,
for the affairs thereof, to constitute and erect, Within
every township or parish which now is or hereafter may
be formed, constituted, or erected Within such province,
one or more parsonage or rectory, or parsonages or rec-
tories, according to the establishment of the Church of
England ; and from time to time, by an instrument
under the great seal of such province, to endow every
such parsonage or rectory With so much or such part of
‘ See 3 8t 4 Vict. c. 78. and 16 & 17 Vict. c. 21.
and the rents
arising from
such allotment-S
to be applicable
to that purpose
solely.
His Majesty
may authorize
the Governor,
with the advice
of the Execu-
tive Council,
to erect parson-
ages and endow
them;
586 31 GEO. c. 31.—ENG. & CAN. OLERGY. [1791.
and the Gover-
nor to present
incumbents to
them, who are
to enjoy the
same, as incum-
bents in Eng-
land.
Presentations
to parsonages,
and the enjoy-
ment of them,
to be subject to
the jurisdiction
granted to the
Bishop of Nova
Scotia, &c.
the lands so allotted and appropriated as aforesaid, in
respect of any lands within such township or parish,
which shall have been granted subsequent to the com-
mencement of this Act, or of such lands as may have
been allotted and appropriated for the same purpose, by
or in virtue of any instruction which may be given by
His Majesty, in respect of any lands granted by His
Majesty before the commencement of this Act, as such
Governor, Lieutenant-Governor, or person administering
the government, shall, with the advice of the said
Executive Council, judge to be expedient under the then
existing circumstances of such township or parish. ‘
39, And be it further enacted by the authority afore-
said, That it shall and may be lawful for His Majesty,
his heirs or successors, to authorize the Governor,
Lieutenant-Governor, or person administering the go-
vernment of each of the said provinces respectively,
to present to every such parsonage or rectory an incum-
bent or minister of the Church of England, who shall
have been duly ordained according to the rites of the
said church, and to supply from time to time such
vacancies as may happen therein ; and that every person
so presented to any such parsonage or rectory, shall hold
and enjoy the same, and all rights, proﬁts, and emolu-
ments thereunto belonging or granted, as fully and
amply, and in the same manner, and on the same terms
and conditions, and liable to the performance of the
same duties, as the incumbent of a parsonage or rectory
in England.
40, Provided always, and be it further enacted by
the authority aforesaid, That every such presentation of
an incumbent or minister to any such parsonage or
rectory, and also the enjoyment of any such parsonage
or rectory, and of the rights, proﬁts, and emoluments
thereof, by any such incumbent or minister, shall be
subject and liable to all rights of institution, and all
other spiritual and ecclesiastical jurisdiction and autho-
1791.] 91 eno. 9. c. 31.—-BISHOP or NOVA SCOTIA. 587
rity, which have been lawfully granted by His Majesty’s
royal letters patent to the Bishop of Nova Scotia, or
which may hereafter, by His Maj esty’s royal autho-
rity, be lawfully granted or appointed to be administered
and executed within the said provinces, or either of
them respectively, by the said Bishop of Nova Scotia, or
by any other person or persons, according to the laws
and canons of the Church of England, which are law-
fully made and received in England.
41. Provided always, and be it further enacted by c o o 0 b
the authority aforesaid, That the several provisions here- allotment Of
. . v . lands for the
in-before contained, respecting the allotment and appro- support ofa
' ' P‘ t t-( t
priation of lands for the support of a Protestant clergy my
within the said provinces, and also respecting the consti- be “Tied 01'
repealed by the
tuting, erecting, and endowing parsonages or rectories within the said provinces, and also respecting the Assembly.
presentation of incumbents or ministers to the same,
and also respecting the manner in which such incum-
bents or ministers shall hold and enjoy the same, shall
be subject to be varied or repealed by any express pro-
visions for that purpose, contained in any Act or Acts
which may be passed by the Legislative Council and
Assembly of the said provinces respectively, and assented
to by His Majesty, his heirs or successors, under the
restriction herein-after provided.
4-2. Provided nevertheless, and be it further enacted ﬁst? yftthe
. . egis a we
by the authority aforesaid, That whenever any Act or Council and
. . . Assembl ,con-
Acts shall be passed by the Legislative Council and mining gm..-
' 1 ' . ' ' ' sions to the
Assembly of eithei of the said provinces, containing any effect herein
provisions to vary or repeal the above-recited declaration mtntioned to be
laid before Par-
and provision contained in the said Act passed in t1161i51m0nt,p1'0-_
fourteenth year of the reign of His present Majesty ; or t'fifm“
to vary or repeal the above-recited provision contained in ,3 assent’
His Majesty’s royal instructions, given on the third day
of January, in the year of our Lord one thousand seven
hundred and seventy-ﬁve, to the said Guy Carleton
esquire, now Lord Dorchester; or to vary or repeal the
588 31 GEC. 3. c. 31.—TC BE LAID BEFORE IMP. PAR. [1791.
provisions herein-before contained for continuing the
force and effect of the said declaration and provisions;
or to vary or repeal any of the several provisions herein-
beforc contained respecting the allotment and appro-
priation of lands for the support of a Protestant clergy
within the said provinces ; or respecting the constituting,
erecting, or endowing parsonages or rectories within the
said provinces ; or respecting the presentation of incum-
bents or ministers to the same; or respecting the man-
ner in which such incumbents or ministers shall hold
and enjoy the same: And also that whenever any Act
or Acts shall be so passed, containing any provisions
which shall in any manner relate to or affect the enjoy-
ment or exercise of any religious form or mode of
worship; or shall impose or create any penalties, bur-
thens, disabilities, or disqualiﬁcations in respect of the
same; or shall in any manner relate to or aﬁect the
payment, recovery, or enjoyment of any of the accus-
tomed dues or rights herein-before mentioned ; or shall
in any manner relate to the granting, imposing, or re-
covering any other dues, or stipends, or emoluments
whatever, to be paid to or for the use of any minister,
priest, ecclesiastic, or teacher, according to any reli-
gious form or mode of worship, in respect of his said
ofﬁce or function; or shall in any manner relate to or
aﬁect the establishment or discipline of the Church of
Eq-zglancl, amongst the ministers and members thereof
within the said provinces; or shall in any manner
relate to or affect the King’s prerogative touching the
granting the waste lands of the Crown within the said
provinces; every such Act or Acts shall, previous to
any declaration or signiﬁcation of the King’s assent
thereto, be laid before both Houses of Parliament in
Great Britain ; and that it shall not be lawful for His
Majesty, his heirs or successors, to signify his or their
assent to any such Act or Acts, until thirty days
after the same shall have been laid before the said
Houses, or to assent to any such Act or Acts, in case
either House of Parliament shall, within the said thirty
1791.] 31GEO.3.c.31.—FREE & ooMMoN SOCAGE. 589
days, address His Majesty, his heirs or successors, to
withhold his or their assent from such Act or Acts; and
that no such Act shall be valid or effectual to any of the
said purposes, within either of the said provinces, unless
the Legislative Council and Assembly of such province
shall, in the session in which the same shall have been
passed by them, have presented to the Governor,
Lieutenant - Governor, or person administering the
government of such province, an address or addresses,
specifying that such Act contains provisions for some of
the said purposes herein-before specially described, and
desiring that, in order to give effect to the same, such
Act should be transmitted to England without delay,
for the purpose of being laid before Parliament previous
to the signiﬁcation of His Majesty’s assent thereto.
43, And be it further enacted by the authority afore-
said, That all lands which shall be hereafter granted
within the said province of Upper Canada shall be
granted in free and common socage, in like manner as
lands are now holden in free and common socage, in
that part of Great Britain called England; and that in
every case where lands shall be hereafter granted within
the said province of Lower Canada, and where the
grantee thereof shall desire the same to be granted in
free and common socage, the same shall be so granted ;
but subject nevertheless to such alterations, with respect
to the nature and consequences of such tenure of free
and common socage, as may be established by any law
or laws which may be made by His Majesty, his heirs or
successors, by and with the advice and consent of the
Legislative Council and Assembly of the province.
44:. And be it further enacted by the authority
aforesaid, That if any person or persons holding any
lands in the said province of Upper Canada, by virtue
of any certiﬁcate of occupation derived under the au-
thority of the Governor and Council of the province of
Quebec, and having power and authority to alienate the
Lands in Upper
Canada to be
granted in free
and common
socage, and
also in Lower
- Canada if de-
sired.
Pe sons hold-
r
mg lands in
Upper Canada
may have fresh
grants.
590 31 GEO. 3. c. 31.—TEA ACT EXPLAINED. [1791.
Such fresh
grants not to
bar any right
or title to the
lands.
18 Geo. 3.
c. 12. recited.
same, shall at any time, from and after the commence-
ment of this Act, surrender the same into the hands of
His Majesty, his heirs or successors, by petition to the
Governor, or Lieutenant-Governor, or person adminis-
tering the government of the said province, setting forth
that he, she, or they is or are desirous of holding the
same in free and common socage, such Governor or
Lieutenant-Governor, or person administering the go-
vernment, shall thereupon cause a fresh grant to be
made to such person or persons of such lands, to be
holden in free and common socage.
45. Provided nevertheless, and be it further enacted
by the authority aforesaid, That such surrender and
grant shall not avoid or bar any right or title to any
such lands so surrendered, or any interest in the
same, to which any person or persons, other than the
person or persons surrendering the same, shall have
been entitled, either in possession, remainder, or rever-
sion, or otherwise, at the time of such surrender; but
that every such surrender and grant shall be made
subject to every such right, title, and interest, and that
every such right, title, or interest shall be as valid
and effectual as if such surrender and grant had never
been made.
46. And whereas by an Act passed in the eighteenth
year of the reign of His present Majesty, intituled, “ An
Act for removing all doubts and apprehensions con-
cerning Taxation by the Parliament of Great Britain,
in any of the Colonies, Provinces, and Plantations in
North America, and the West Indies ; and for repealing
so much of an Act, made in the seventh year of the
reign of His present Majesty, as imposes a Duty on
Tea imported from Great Britain into any Colony or
Plantation in America,” or relates thereto, it has been
declared,1 “ That the. King and Parliament of Great
1 The preamble of 18 Geo. 3.
1778, c. 12., was : “ Whereas tax-
ation by the Parliament of Great
Britain for the purpose of raising
a revenue in His Majesty’s colo-
nies, provinces, and plantations 1n
1791.] 31 GEO. 3. c. 31.—-“REGULTN. OF COMMERCE.” 591
Britain will not impose any duty, tax, or assessment
whatever, payable in any of His Majesty’s colonies,
provinces, and plantations in North America or the
West Indies, except only such duties as it may be ex-
pedient to impose for the regulation of commerce,1
the net produce of such duties to be always paid and
applied to and for the use of the colony, province, or
plantation in which the same shall be respectively
levied, in such manner as other duties collected by
the authority ‘of the respective general Courts, or
general Assemblies, of such colonies, provinces, or plan-
tations are ordinarily paid and applied” : And whereas
it is necessary, for the general beneﬁt of the British
Empire, that such power of regulation of commerce
should continue to be exercised by His Majesty, his
heirs or successors, and the Parliament of Great Britain,
subject nevertheless to the condition herein-before re-
cited, with respect to the application of any duties
which may be imposed for that purpose: Be it there-
fore enacted by the authority aforesaid, That nothing
in this Act contained shall extend, or be construed to
extend, to prevent or affect the execution of any law
which hath been or shall at any time be made by
His Majesty, his heirs or successors, and the Parlia-
ment of Great Britain, for establishing regulations
or prohibitions, or for imposing, levying, or collecting
duties for the regulation of navigation, or for the
North America, has been found by
experience to occasion great un-
easiness and disorders among His
Majesty’s faithful subjects, who
may nevertheless be disposed to
acknowledge the justice of con-
tributing to the common defence
of the Empire, provided such eon-
tributicn should be raised under
the authority of the general Court,
or General Assembly of each re-
spective colony, province, or planta-
tion: And whereas, in order as
well to remove the said uneasiness
and to quiet the minds of His
Majesty’s subjects who may be
disposed to return to their alle-
giance [the idea was entertained
long after this that the revolted
colonies of America would yet re-
turn] as to restore the peace and
welfare of all His Majesty’s do-
minions, it is expedient to declare,”
&c., as given in the text. This
Act repealed so much of the
7 Geo. 3. c. 46. as imposed a
duty on tea.
1 “ Regulation of commerce”
used in an imperial sense. See
sec. 91, sub-sec. 2, B. N. A. Act,
1867, ante p. 52.
This Act not to
prevent the
operation of
any Act of
Parliament
establishing
prohibitions or
imposing duties
for the regula-
tion of naviga-
tion and com- -
merce, &c.
592 31 see. 3. c. 31.—DUTIES TO PROV. [1791.
Such duties to
be applied to
the use of the
respective pro-
vinces.
His Majesty in
Council to ﬁx
and. declare’ the
commencement
of this Act, &c.
regulation of the commerce to be carried on between
the said two provinces, or between either of the said
provinces and any other part of His Majesty’s do-
minions, or between either of the said provinces and
any foreign country or state, or for appointing and
directing the payment of drawbacks of such duties
so imposed, or to give to His Majesty, his heirs or
successors, any power or authority, by and with the
advice and consent of such Legislative Councils and
Assemblies respectively, to vary or repeal any such law
or laws, or any part thereof, or in any manner to
prevent or obstruct the execution thereof.
41.-'7. Provided always, and be it enacted by the
authority aforesaid, That the net produce of all duties
which shall be so imposed shall at all times here-
after be applied to and for the use of each of the
said provinces respectively, and in such manner only
as shall be directed by any law or laws which may
be made by His Majesty, his heirs or successors, by
and with the advice and consent of the Legislative
Council and Assembly of such province.
48, And whereas, by reason of the distance of the
said provinces from this country, and of the change
to be made by this Act in the government thereof,
it may be necessary that there should be some interval
of time between the notiﬁcation of this Act to the said
provinces respectively, and the day of its commence-
ment within the said provinces respectively: Be it
therefore enacted by the authority aforesaid, That it
shall and may be lawful for His Majesty, with the
advice of his Privy Council, to ﬁx and declare, or to
authorize the Governor or Lieutenant-Governor of the
province of Quebec, or the person administering the
government there, to ﬁx and declare the day of the
commencement of this Act within the said provinces
respectively, provided that such day shall not be later
than the thirty-ﬁrst day of December in the year of
our Lord one thousand seven hundred and ninety-one.
1791.] 31 e110. 3. c. 31-1“ MEETING or COUNCIL. 593
4:9. And be it further enacted by the authority
aforesaid, That the time to be ﬁxed by His Majesty,
his heirs or successors, or under his or their authority,
by the Governor, Lieutenant-Governor, or person ad-
ministering the government in each of the said pro-
vinces respectively, for issuing the writs of summons
and election, and calling together the Legislative Coun-
cils and Assemblies of each of the said provinces respec-
tively, shall not be later than the thirty-ﬁrst day of
December in the year of our Lord one thousand seven
hundred and ninety-two.
50. Provided always, and be it further enacted by
the authority aforesaid, That during such interval as
may happen between the commencement of this Act,
within the said provinces respectively, and the ﬁrst
meeting of the Legislative Council and Assembly of
each of the said provinces respectively, it shall and may
be lawful for the Governor or Lieutenant-Governor of
such province, or for the person administering the
government therein, with the consent of the major part
of such Executive Council as shall be appointed by His
esty for the affairs of such province, to make tem-
porary laws and ordinances for the good government,
peace, and welfare of such province,1 in the same man-
ner, and under the same restrictions, as such laws or
ordinances might have been made by the Council for
the affairs of the province of Quebec, constituted by
virtue of the above-mentioned Act of the fourteenth
year of the reign of His present Majesty; and that such
temporary laws or ordinances shall be valid and binding
within such province, until the expiration of six
months after the ‘Legislative Council and Assembly of
such province shall have been ﬁrst assembled by virtue
of and under the authority of this Act; subject, never-
theless, to be sooner repealed or varied by any law or
laws which may be made by His Majesty, his heirs or
1 See sec. 91, B. N. A. Act, 1867, ante.
s 2340. P P
Time for is-
suing the writs
of summons
and election,
&c. not to be
later than
Dec. 31, 1792.
Between the
commencement
of this Act, and
the ﬁrst meet-
ing of the
Legislative
Council and
Assembly, tem-
porary laws
may be made.
5941 43GEO.3.c.138.——BOUNDARY ()FFENOES. [1803.
successors, by and with the advice and consent of the
said Legislative Council and Assembly.
33 GEO. 3. (1793) c. 76.
Determined by 49 Geo. 3. c. 27.
33 Geo. 3. c. 7 6. was entituled, “ An Act to establish
Courts of Judicature in the Island of Newfoundland
and the islands adjacent.” This Act was, in effect, a
continuation of the 32 Geo. 3. c. 46., which had in its
turn re-enacted 31 Geo. 3. c. 29., which recited 15 Geo.
3. c. 31. and 26 Geo. 3. c. 26., Acts providing for the
decision of questions‘ concerning disputes as to the
wages of seamen engaged in the Newfoundland ﬁsheries.
See for Imperial Act now partly in force, 5 Geo. 4. c. 67,
post.
4.3 eno. s. (1803) c. 138.
On the Government of British Columbia being esta-
blished, this Act was repealed so far as it aﬁected that
province (see 1 & 2 Geo. 4. c. 66., 21 & 22 Vict. c. 99.),
and totally repealed by S. L. It. Act, 1872, 35 do 36
Vict. c. 63.
43 Geo. 3. c. 138. was intituled, “ An Act for ex-
tending the Jurisdiction of the Courts of Justice in the
Provinces of Lower and Upper Canada to the trial and
punishment of persons guilty of crimes and offences
within certain parts of North America adjoining to the
said provinces.”
The preamble was: Whereas crimes and offences have
been committed in the Indian territories, and other
parts of America, not within the limits of the provinces
of Lower or Upper Canada, or either of them, or of
the jurisdiction of any of the courts established in those
provinces, or within the limits of any civil Government
of the United States of America, and are therefore
not cognizable by any jurisdiction, whatever, and by
reason thereof great crimes and offences have gone and
may hereafter go unpunished, and greatly increase.
1909.] 49 GEO. s. c. 27.—-TRIAL or OFFENDERS. 595
For remedy the Act then proceeded to enact section 1,
That all offences committed within any of the Indian
territories, or parts of America not within the limits
of either of the said provinces of Lower or Upper
Canada, or of any civil Government of the United
States, might be tried and subject to the same punish-
ments as if the same had been committed in Lower
or Upper Canada. By sec. 2, The Governor of Lower
Canada might empower persons to act as justices for
any of the Indian territories or parts of America
aforesaid for hearing crimes and offences and com-
mitting to safe custody any offender for conveyance
to Lower Canada for trial. By sec. 3, Offenders might
be tried in the courts of Lower or Upper Canada, and
were to be liable to the same punishment awarded as if
such crime had been really committed within the juris-
diction of the court of the province where tried. By
see. A, If the offence charged under this Act was proved
to have been committed by a person not a subject of
His Majesty, and also within the limits of any colony,
settlement, or territory belonging to any European
State, the court was to forthwith acquit such person
or persons. By sec. 5, It was provided that the trial
of a subject of His Majesty should proceed, although
it should appear that the alleged oﬁence had been
committed within the limits of any colony, settlement,
or territory belonging to any European State.
49 eno. s. (1809) c. 27.
In part repealed by 6 Geo. 41. c. 59. s. 9, andwholly
repealed, except sec. 14, by S. L. R. (No. 2), 1872,
35 80 36 Vict. c. 97. '
The 49 Geo. 3. c. 27. Act determined 33 Geo. 3. c. 76.,
an Act for establishing courts of judicature in New-
foundland, but re-enacted, with amendments, its pro-
visions.
The 141t11 section of this Act recited 14 Geo. 3. c. 83.
and 31 Geo. 3. c. 31., and then enacted that, notwith-
: r r 2
596 , 1 8t 2 GEO. 4. c. 66.—HUDSON’S BAY CO. [1821;
standing anything in the latter Act, the coast of Lab-
rador and the adjacent islands (except the islands of
Madelaine) should be re-annexed to the Government of
Newfoundland. The 6 Geo. 41. c. 59. s. 9 re-annexed to
Lower Oanada part of the coast of Labrador, namely,
so much of the coast as “ lies to the westward of a line
to be drawn due north and south from the bay or har-
bour of Ance Sablon, inclusive, as far as the 52nd de-
gree of north latitude, with the island of Anticosti and
all other islands adjacent to such part as last aforesaid
of the coast of Labrador.” This latter Act, therefore,
as regards the said portion of the coast of Labrador,
repealed, in part, 49 Geo. 3. c. 27 . and 5 Geo. 4. c. 67.
1 a 2 GEO. 41. (1821) c. 66.
Certain words; and Sec. 41 repealed by 53 & 541 Vict.
c. 33. Sec. 5 repealed altogether, and secs. 6, 7, 8,
9, 10, 11, 12, 13, so far as they relate to British
Columbia and Vancoucer’s Island, by S. L. R. (1874),
37 80 38 Vict. c. 35. See for surrender of rights by
Hudson Bay Company, 31 & 32 Vict. c. 105.
A11 Act for regulating the Fur Trade, and estab-
lishing a Criminal and Civil Jurisdiction within
certain parts of North America. [2 July 1821.]
HEREAS the ‘competition in the fur trade between
the Governor and Company of Adventurers of
England trading into Hudson’s Bay, and certain associa-
tions of persons-trading under the name of “ The North-
West Company of Montreal,” has been found for some
years past to be productive of great inconvenience and
loss, not only to the said company and associations, but
to the said trade in general, and also of great injury to
the native Indians, and of other persons subjects of His
Majesty : And whereas the animosities and feuds, arising
from such competition, have also for some years past
kept the interior of America, to the northward and west-
ward of the provinces of Upper and Lower Canada, and
1821.] 1 a 2 GEO. 4. c 66.—OFFENDERS IN HUD. BAY. 597
of the territories of the United States of America, in a
state of continued disturbance : And whereas many
breaches of the peace, and violence extending to the loss
of lives, and considerable destruction of property, have
continually occurred therein: And whereas, for remedy
of such evils, it is expedient and necessary that some
more effectual regulations should be established for the
apprehending, securing, and bringing to justice all
persons committing such offences, and that His Majesty
should be empowered to regulate the said trade: And
whereas doubts have been entertained, whether the pro-
visions of an Act passed in the forty-third year of the
reign of His late Majesty King George the Third, inti-
tuled “ An Act for extending the Jurisdiction of the
Courts of Justice in the Provinces of Lower and Upper
Canada, to the Trial and Punishment of Persons guilty of
Crimes and Offences within certain Parts of North
America adjoining to the said Provinces,” extended to the
territories granted by charter to the said Governor and
Company; and it is expedient that such doubts should
be removed, and that the said Act should be further ex-
tended : Be it therefore enacted by the King’s most
Excellent Majesty, by and with the advice and consent
of the lords spiritual and temporal, and commons, in this
present Parliament assembled, and by the authority of
the same, That from and after the passing of this Act, it
shall be lawful for His Majesty, his heirs or successors,
to make grants or give his royal license, under the hand
and seal of one of His Majesty’s principal Secretaries of
State, to any body corporate, or company, or person or
persons, of or for the exclusive privilege of trading with
the Indians in all such parts of North America as shall
be speciﬁed in any such grants or licenses respectively,
not being part of the lands or territories heretofore
granted to the said Governor and Company of Adven-
turers of England trading to Hildson’s Bag, and not being
part of any of His Majesty’s provinces in North America,
or of any lands or territories belonging to the United
States of America; and all such grants and licenses shall
43 Geo. 3.
c. 138.
Empowering
His Majesty to
make grants for
the exclusive
trade to certain
parts of North
America.
598 1 a 2 GEO. 4. c. 66.—-LICENSES TO TRADE. [1821.
Limiting the
periods for
which such
grants may be
made.
Persons to'
whom such
grants shall be
made to enter
into security.
be good, valid, and effectual for the purpose of securing
to all such bodies corporate, or companies, or persons,
the sole and exclusive privilege of trading with the
Indians in all such parts of North America (except as
herein-after excepted), as shall be speciﬁed in such
grants or licenses; anything contained in any Act or
Acts of Parliament, or any law to the contrary notwith-
standing.
2. Provided always, and be it further enacted, That
no such grant or license, made or given by His Majesty,
his heirs or successors, of any such exclusive privileges
of trading with the Indians in such parts of North
America as aforesaid, shall be made or given for any
longer period than twenty-one years ; and no rent shall
be required or demanded for or in respect of any such
grant or license, or any privileges given thereby under
the provisions of this Act, for the ﬁrst period of twenty-
one years ; and from and after the expiration of such ﬁrst
period of twenty-one years, it shall be lawful for His
Majesty, his heirs or successors, to reserve such rents in
any future grants or licenses to be made to the same or
any other parties, as shall be deemed just and reasonable,
with security for the payment thereof; and such rents
shall be deemed part of the land revenues of His Majesty,
his heirs and successors, and be applied and accounted
for as the other land revenues of His Majesty, his heirs
or successors, shall, at the time of payment of any such
rent being made, be applied and accounted for.
3, And be it further enacted, That from and after the
passing of this Act, the Governor and Company of Ad-
venturers trading to Hudson’s Bag, and every body cor-
porate and company and person to whom every such
grant or license shall be made or given as aforesaid, shall
respectively keep accurate registers of all persons in
their employ in any parts of North America, and shall,
once in each year, return to His Majesty’s Secretaries of
State, accurate duplicates of such registers, and shall
also enter into such security as shall be required by His
1821.] 1 a 2 GEO. 4. c. (79.-U. s. CONVENTION. 599
Majesty for the due execution of all processes, criminal
and civil, as well within the territories included in any
such grant, as within those granted by charter to the
Governor and Company of Adventurers trading to Hud-
son’s Bay, and for the producing or delivering into safe
custody, for purpose of trial, of all persons in their
employ or acting under their authority, who shall be
charged with any criminal offence, and also for the due
and faithful observance of all such rules, regulations,
and stipulations as shall be contained in any such grant
or license, either for diminishing or preventing the sale
or distribution of spirituous liquors to the Indians, or
for promoting their moral and religious improvement,
or for any other object which His Majesty may deem
necessary for the remedy or prevention of the other
evils which have hitherto been found to exist.
4:. And whereas by a convention entered into be-
tween His Majesty and the United States of America,
it was stipulated and agreed, that any country on the
north-west coast of America, to the westward of the
Stony h/Iouiitains, should be free and open to the citizens
and subjects of the two powers for the term of ten
years from the date of the signature of that convention;
be it therefore enacted, That nothing in this Act con-
tained shall be deemed or construed to authorize any
body corporate, company, or person, to whom His
Majesty may have, under the provisions of this Act,
made a grant or given a license of exclusive trade with
the Indians in such parts of North America as aforesaid,
to claim or exercise any such exclusive trade within the
limits speciﬁed in the said article, to the prejudice or
exclusion of any citizens of the said United States of
America, who may be engaged in the said trade: Pro-
vided always, that no British subject shall trade with
the Indians within such limits, without such grant or
license as is by this Act required.
5, And be it declared and enacted, That the said Act
passed in the forty-third year of the reign of His late
Such grant of
exclusive trade
not to interfere
with citizens of
the United
States beyond
the Stony
Mountains.
43 G00. 3.
c. 138. extended
to the terri-
tories granted
to the Hudson’s
Bay Company.
600 1 a‘ 2 GEO. 4. c. 66.—_-INDIAN_ TERRITORIES. [1821.
Courts of judi-
cature est-a-
blished in Up-
per Canada to
take cognizance
of causes in
Indian terri-
tories.
Majesty, intituled “ An Act for extending the Jurisdiction
of the Courts of Justice in the Provinces of Lower and
Upper Canada, to the Trial and Punishment of Persons
guilty of Crimes and Offences within certain Parts of
North America adjoining to the said Provinces,” and all
the clauses and provisoes therein contained, shall be
deemed and construed, and it is and are hereby respec-
tively declared, to extend to and over, and to be in full
force in and through all the territories heretofore
granted to the Company of Adventurers of England
trading to Hudson’s Bag ; anything in any Act or Acts
of Parliament, or this Act, or in any grant or charter to
the company, to the contrary notwithstanding.
6, And be it further enacted, That from and after
the passing of this Act, the courts of judicature now
existing, or which may be hereafter established in the
province of Upper Canada, shall have the same civil
jurisdiction, power, and authority, as well in the cogni-
zance of suits, as in the issuing process, mesne and ﬁnal,
and in all other respects whatsoever, within the said
Indian territories, and other parts of America not
within the limits of either of the provinces of Lower or
Upper Canada, or of any civil government of the
United States, as the said courts have or are invested
with within the limits of the said provinces of Lower
or Upper Canada respectively; and that all and every
contract, agreement, debt, liability, and demand what-
soever, made, entered into, incurred, or arising within
" the said Indian territories and other parts of America,
and all and every wrong and injury to the person or to
property, real or personal, committed or done within
the same, shall be and be deemed to be of the same
nature, and be cognizable by the same courts, magis-
trates, or justices of the peace, and be tried in the same
manner, and subject to the same consequences in all
respects, as if the same had been made, entered into,
incurred, arisen, committed, or done within the said
province of Upper Canada ; anything in any Act or
1821.] 1 8c 2 GEO. 4. c. 66.—-JUSTICES CF IND. TER.
601
Acts of Parliament, or grant or charter, to the contrary
notwithstanding : Provided always, that all such suits
and actions relating to lands, or to any claims in respect
of land, not being within the province of Upper Canada,
shall be decided according to the laws of that part of
the United Kingdom called England, and shall not be
subject to or affected by any local Acts, statutes, or
laws of the Legislature of Upper Canada.
7, And be it further enacted, That all process, writs,
orders, judgments, decrees and Acts whatsoever, to be
issued, made, delivered, given, and done by or under the
authority of the said courts, or either of them, shall
have the same force, authority, and eﬁect within the
said Indian territory and other parts of America as afore-
said, as the same now have within the said province of
Upper Canada.
80 And be it further enacted, That it shall be lawful
for the Governor or Lieutenant-Governor or person
administering the government for the time being of
Lower Canada, by commission under his hand and seal,
to authorize all persons who shall be appointed justices
of the peace‘under the provisions of this Act, within the
said Indian territories, or other parts of America as
aforesaid, or any other person who shall be specially
named in any such commission, to act as a commissioner
within the same, for the purpose of executing, enforcing,
and carrying into effect all such process, writs, orders,
judgments, decrees, and Acts, which shall be issued,
made, delivered, given, or done by the said courts of
judicature, and which may require to be enforced and
executed within the said Indian territories, or such
other parts of North America as aforesaid ; and in case
any person or persons whatsoever residing or being
within the said Indian territories, or such other parts of
America as aforesaid, shall refuse to obey or perform
any such process, writ, order, judgment, decree, or Act
of the said courts, or shall resist or oppose the execution
Actions relating
to lands not
within the pro-
vince of Upper
Canada to be
decided accord-
ing to the law
of England.
Proceedings of
courts to be
issued in the
same manner as
heretofore.
Appointment
of ustiees of
peace.
602 1 a 2 GEO. 4. c. 66.-CONVEYING PRISONERS. [1821.
For assigning
recogmzances
issued.
thereof, it shall and may be lawful for the said justices
of the peace or commissioners, and they or any of them
are and is hereby required, on the same being proved
before him, by the oath or af’ﬁdavit of one credible
witness, to commit the said person or persons so oﬁend-
ing as aforesaid to custody, in order to his or their being
conveyed to Upper Canada; and that it shall be lawful
for any such justice of the peace or commissioner, or
any person or persons acting under his authority, to
convey or cause to be conveyed such person or persons
so oﬁending as aforesaid to Upper Canada, in pursu-
ance of such process, writ, order, decree, judgment, or
act, and such person and persons shall be committed
to gaol by the said court, on his, her, or their being
so brought into the said province of Upper Canada, by
which such process, writ, order, decree, judgment, or
act was issued, made, delivered, given, or done, until
a ﬁnal judgment or decree shall have been pronounced
in such suit, and shall have been duly performed, and
all costs paid, in case such person or persons shall be
a party or parties in such suit, or until the trial of such
suit shall have been concluded, in case such person or
persons shall be a witness or witnesses therein: Pro-
vided always, that if any person or persons so appre-
hended as aforesaid shall enter into a bond recognizance
to any such justice of the peace or commissioner, with
two sufficient sureties, to the satisfaction of such justice
of the peace or commissioner, or the said courts, con-
ditioned to obey and perform such process, writ, order,
judgment, decree or act as aforesaid, then and in such
case it shall and may be lawful for the said justice of
the peace or commissioner, or the said courts, to dis-
charge such person or persons out of custody.
9, And be it further enacted, That in case such
person or persons shall not perform and fulﬁl the con-
dition or conditions of such recognizance, then and in
such case it shall and may be lawful for any such
justice or commissioner, and he is hereby required, to
1921.] 1 a 2 GEO. 4. c. 66.--JUSTICES IN HUD. BAY. .603
assign such recognizance to the plaintiff or plaintiffs, in
any suit in which such process, writ, order, decree,
judgment, or act shall have been issued, made, do-
livered, given, or done, who may maintain an action
in the said courts in his own name against the said
sureties, and recover against such sureties the full
amount of such loss or damage as such plaintiff shall
prove to have been sustained by him, by reason of the
original cause of action in respect of which such pro-
cess, writ, order, decree, judgment, or act of the said
courts were issued, made, delivered, given, or done as
aforesaid, notwithstanding anything contained in any
charter granted to the said Governor and Company of
Adventurers of England trading to Hudson’s Bag.
10, And be it further enacted, That it shall be lawful
for His Majesty, if he shall deem it convenient so to
do, to issue a commission or commissions to any person
or persons to be and act as justices of the peace within
such parts of America as aforesaid, as well within any
territories heretofore granted to the Company of Ad-
venturers of England trading to Hudson’s Bag, as
within the Indian territories of such other parts of
America as aforesaid; and it shall be lawful for the
court in the province of Upper Canada, in any case
in which it shall appear expedient to have any evidence
taken by commission, or any facts or issue, or any cause
or suit ascertained, to issue a commission to any three
or more of such justices to take such evidence, and
return the same, or try such issue, and for that purpose
to hold courts, and to issue subpoenas or other processes
to compel attendance of plaintiffs, defendants, jurors,
witnesses, and all other persons requisite and essential
to the execution of the several purposes for which such
commission or commissions had issued, and with the
like power and authority as are vested in the courts of
the said province of Upper Canada; and any order,
verdict, judgment, or decree that shall be made, found,
declared, or published by or before any court or courts
Appointment
of justices to
determine
causes.
604 1 a 2 GEO. 4. c. ee-coun'rs IN IND. TEE. [1821‘.
His Majesty
may issue com-
missions under
the great seal
empowering
justices to hold
courts of re-
' cord for the
trial of criminal
and c1v1l
oﬁences.
Court to be
constituted as
His Majesty
shall direct.
held under and by virtue of such commission or com-
missions, shall be considered to be of as full effect, and
enforced in like manner, as if the same had been made,
found, declared, or published within the jurisdiction of
the court of the said province; and at the time of
issuing such commission or commissions shall be de-
clared the place or places where such commission is
to be opened, and the courts and proceedings there-
under held; and it shall be at the same time provided
how and by what means the expenses of such commis-
sion, and the execution thereof, shall be raised and pro-
vided for.
11. And be it further enacted, That it shall be lawful
for His Majesty, notwithstanding anything contained
in this Act, or in any charter granted to the said
Governor and Company of Adventurers of England
trading to Hudson’s Bag, from time to time, by any
commission under the great seal, to authorize and em-
power any such persons so appointed justices of the
peace as aforesaid, to sit and hold courts of record for
the trial of criminal offences and misdemeanors, and
also of civil causes; and it shall be lawful for His
Majesty to order, direct, and authorize the appoint-
ment of proper officers to act in aid of such courts
and justices within the jurisdiction assigned to such
courts and justices in any such commission; anything
in this Act, or in any charter of the Governor and
Company of Merchant Adventurers of England trading
to Hudson’s Bag, to the contrary notwithstanding.
12, Provided always, and be it further enacted, That
such courts shall be constituted, as to the number of
justices to preside therein, and as to such places within
the said territories of the said company, or any Indian
territories, or other parts of North America as afore-
said, and the times and manner of holding the same,
as His Majesty shall from time to time order and’
direct; but shall not try any offender upon any charge
1821.] 1 a 2 GEO. 4. c. 66.—APPEAL TO P. c. 605
or indictment for any felony made the subject of' capital Power of the
punishment, or for any offence or passing sentence
affecting the life of any offender, or adjudge or cause civil actions
any offender to suffer capital punishment or transpor-
tation, or take cognizance of or try any civil action :;‘5%_exceeds
or suit, in which the cause of such suit or action shall
exceed in value the amount or sum of two hundred
pounds; and in every case of any offence subjecting
the person committing the same to capital punishment
or transportation, the court or any judge of any such
court, or any justice or justices of the peace, before
whom any such offender shall be brought, shall commit
such offender to safe custody, and cause such offender
to be sent in such custody for trial in the court of the
province of Upper Canada.
13, And be it further enacted, That all judgments Allowing an
given in. any civil suit shall be subject to appeal to His appeal‘
Majesty in Council, in like manner as in other cases in
His Majesty’s province of Upper Canada, and also in
any case in which the right or title to any land shall
be in question.
14. And be it further enacted, That nothing in this Act not to
Act contained shall be taken or construed to affect any ‘iﬁfi‘gorgihfigf
right, privilege, authority, or jurisdiction which the Company‘
Governor and Company of Adventurers trading to
Hadson’s Bay are by law entitled to claim and exercise
under their charter; but that all such rights, privileges,
authorities, and jurisdictions shall remain in as full force,
virtue, and effect, as if this Act had never been made;
anything in this Act to the contrary notwithstanding.
s GEO. 4.. (1822) c. 119.
Repealed except secs. 31 and 32, S. L. R. Act, 1874,
37 & 38 Vict. c. 35. See 6 Geo. 4!. c. 59.
An Act to regulate the Trade of the Provinces
of Lower and Upper Canada, and for other
purposes relating to the said Provinces.
[5 August 1822.]
court not to ex-
606 3 GEO. 4. c. 119.-INTEB-PROV. TRADE. [1822.
Goods of the
produce of the
United States
enumerated in
Schedule (A)
may be im-
ported into
either of the
provinces of
Upper and
Lower Canada:
Power to the
Governor to
diminish or in-
crease the ports
of entry.
Duties to be
paid on the
goods enu-
merated in
Schedule (B.) :
HEREAS it is expedient to make further regu-
lation respecting the trade of the provinces of
Upper and Lower Canada, in North America: Be
it therefore enacted by the King’s most Excellent
Majesty, by and with the advice and consent of the
Lords spiritual and temporal, and commons, in this
present Parliament assembled, and by the authority of
the same, That from and after the passing of this Act,
it shall be lawful to import by land or inland navigation
in any British or American vessel or vessels, boat or
boats, carriage or carriages, the goods, wares, and
commodities the growth, produce, or manufacture of
the United States of America, enumerated in the
schedule or table annexed to this Act marked (A),
from any port or place in the United States of America,
into any port or place of entry at which a custom
house now is or hereafter may be lawfully established,
in either of the provinces of ‘Upper and Lower Canada :
Provided always nevertheless, that it shall and may
be lawful for the Governor, Lieutenant—Governor, or
person administering the government of either of the
said provinces respectively, by and with the advice
and consent of the Executive Council thereof for the
time being, from time to time to diminish or increase
by proclamation, the number of ports or places which
are or hereafter may be appointed in such province
for the entry of goods, wares, and commodities imported
from the United States of America.
2. And be it further enacted, That from and after the
passing of this Act, there shall be raised, levied, col-
lected, and paid unto His Majesty, his heirs and suc-
cessors, for and upon such of the goods, wares, and
commodities which shall be so imported, as are enume-
rated in the schedule or table annexed to this Act
marked (B.), the several duties of customs as the
same are respectively inserted or described and set forth
in ﬁgures in the said schedule.
1922.] 3 GEO. 4. c. 119.-TRADE WITH U. s. 607
3. Provided always, and be it further enacted, Where any
article is liable
That if 11)()Tl the 1m iortation of an article charged toacolonidl
‘ D duty equal to
with duty by this Act, the said article shall also be the one im—
liable to the payment of duty under the authority not
of any colonial law, equal to or exceeding in amount $531136? with
the duty charged by this Act, then and in such case the
duty charged up in such article by this Act shall not
he demanded or paid upon the importation of such
article: Provided also, that if the duty payable under 555%
such colonial law shall be less in amount than the only shall be
duty payable by this Act, then and in such case the Pald'
difference only between the amount of the duty payable
by this Act, and the duty payable under the authority
of such colonial laws, shall be deemed to be the duty
payable by this Act; and the same shall be collected
and paid in such and the like. manner, and appro-
priated and applied to such and the like uses, as the
duties speciﬁed in the said schedule annexed to this
Act marked (B.) are directed to be collected, paid, ap-
propriated, and applied. 1
4. And be it further enacted, That the same ton- Tonnaseduties
for American
nage duties shall be paid upon all American vessels or vessels to bathe
boats, importing any goods into either of the said pro- gtﬁlijﬂﬁgﬁd
vinces, as are or may be for the time being payable gle‘sslggfish
in the United States of America, on British vessels or
boats entering the harbours of the State from whence
such goods shall have been imported.
5. And be it further enacted, That in all cases in Value ofsoods
which the duties imposed by this Act upon the im- igiiigaaiiieiiis
portation of articles into the said provinces, or either a? $813621)“
of them, are charged, not according to the weight, c‘ 44'
gauge, or measure, but according to the value thereof,
such value shall be ascertained in the mode prescribed
by an Act passed in this present session of Parliament,
intituled “An Act to regulate the Trade between His
Majesty’s Possessions in America and the West Indies,
and other Places in America and the West Indies.”
608 3 GEO. 4. c. 119.-——IMPORTATION 0F SPIRITS. [1822.
If payment of
duties be re-
fused, collector
may secure the
goods and sell
the same within
20 days.
After payment
of duty, over-
plus to be paid
to the importer.
28 Geo. 3. c. 39.
49 Geo. 3. c. 16.
allowing the
importation of
rum, repealed.
6, And be it further enacted, That if the importer
or proprietor of such articles shall refuse to pay the
duties hereby imposed thereon, it shall an ll may be
lawful for the collector or other chief ofﬁcer of the
customs where such articles shall be imported, and he
is hereby respectively required, to take and secure the
same, with the casks or other package thereof, and to
cause the same to be publicly sold, within the space of
twenty days at the most after such refusal made, and
at such time and place as such ofﬁcer shall, by four or
more days’ public notice, appoint for that purpose;
which articles shall be sold to the highest bidder; and
the money arising from the sale thereof shall be applied
to the payment of the said duties, together with the
charges which shall have been occasioned by the said
sale, and the overplus (if any) shall be paid to such
importer, proprietor, or any other person authorized to
receive the same.
'7, And whereas a certain Act made and passed in
the twenty-eighth year of the reign of His late Majesty
King George the Third, intituled, “ An Act to allow
the Importation of Rum and other Spirits from His
Majesty’s Colonies or Plantations in the West Indies
into the Province of Quebec, without Payment of Duty,
under, certain Conditions and Restrictions,” has been
repealed during the present session of Parliament:
And whereas doubts may be entertained whether a
certain other Act, passed in the forty-ninth year of His
said late Majesty’s reign, intituled, “An Act to allow
the Importation of Rum and other Spirits from the
Island of Bermuda into the Province of Lower Canada,
without Payment of Duty, on the same Terms and
Conditions as such Importation may be made directly
from His Majesty’s Sugar Colonies in the West Indies,”
might not still remain in force, notwithstanding the
repeal of the said ﬁrst-mentioned Act; be it therefore
enacted and declared, That the said last-mentioned Act
shall be and the same is hereby repealed.
1822.] 3 eno. 4. c. 119.-APPLICATION or DUTIES. 609
8. And whereas it is expedient to aﬁiord protection
to the trade between the said colonies and plantations
and the province of Lower Canada, by imposing the
same duty upon rum or other spirits, the produce or
manufacture of the said colonies, imported from Great
Britain into the said province, as is now payable upon
the same articles when imported from His Majesty’s
said colonies or plantations in the T/Ves't Indies; be it
therefore enacted, That from and after the passing of
this Act, there shall be raised, levied, collected, and
paid unto His Majesty, his heirs or successors, for and
upon every gallon of rum or other spirits, the produce
or manufacture of any of His Majesty’s islands, colonies,
or plantations in the West Indies, which shall be im-
ported or brought into any part of the said province of
Lower Canada from GreatlBritain or Ireland, or any of
the British dominions in Europe, the sum of siXpence,
over and above all other duties now or hereafter to be
made payable thereon in the said province.
9, And be it further enacted, That the rates and
duties chargeable by this Act shall be deemed, and are
hereby declared to be sterling money of Great Britain,
and shall be collected, recovered, and paid to the
amount of the value which such nominal sums bear
in Great Britain ,- and that such sums may be received
and taken according to the proportion and value of ﬁve
shillings and sixpence to the ounce in silver; and that
the said duties herein-before granted shall be received,
levied, collected, paid, and recovered in the same man-
ner and form, and by such rules, ways and means, and
under such penalties and forieitures as any other duties
payable to His Majesty upon goods imported into the
said provinces of Upper and Lower Canada, or into
either of them respectively, are or shall be raised,
levied, collected, paid, and recovered by any Act or
Acts of Parliament, as fully and effectually to all
intents and purposes, as if the several clauses, powers,
directions, penalties, and forfeitures relating thereto
s 2340. Q Q
Additional
duty of 6d. per
gallon on West
India rum im-
ported into
Lower Canada
from this king-
dom, $60.
Value of duties
and application
of the money
arising thereby.
610 3 GEO. 4. c. 119.—-INLAND NAVIGATION. [1822.
Goods the pro-
duce of His
Majesty’s do-
minions may
be exported to
any port in the
Unitid States;
but no arms or
naval stores to ,
be exported
without a
license.
Not to affect
inland naviga-
tion of the
provinces.
were particularly repeated and again enacted in the
body of this Act; and that all the moneys which shall
arise by the said duties (except the necessary charges of
raising, collecting, levying, recovering, answering, pay.
ing, and accounting for the same) shall be paid by the
collector of His Majesty’s customs, into the hands of
His Majesty’s Receiver-General in the said provinces
respectively for the time being, and shall be applied to
and for the use of the provinces of Upper and Lower
Canada respectively, in such manner only as shall be
directed by any law or laws which may be made by His
Majesty, his heirs or successors, by and with the advice
and consent of the Legislative Council and Assembly of
each of the said provinces respectively.
IO. And be it further enacted, That it shall be
lawful to export in any British or American vessel or
vessels, boat or boats, carriage or carriages, from any of
the ports or places of entry now or hereafter to be
established in the said provinces, to any port or place in
the United States of America, any article of the
growth, produce, or manufacture of any of His Ma-
jesty’s dominions, or any other article legally imported
into the said provinces: Provided always, that nothing
herein contained shall be construed to permit or allow
the exportation of any arms or naval stores, unless a
license shall have been obtained for that purpose from
His Majesty’s Secretary of State; and in case any such
articles shall be shipped or waterborne for the purpose
of being exported contrary to this Act, the same shall
be forfeited, and shall and maybe seized and prosecuted
as herein-after directed.
11, And be it further enacted, That nothing in this
Act contained shall be construed to interfere with or
repeal, as respects the inland navigation of the said
provinces, any of the provisions contained in a certain
Act passed in the seventh and eighth years of the reign
of King William, intituled, “An Act for preventing
192-2.] 3 GEO. 4. c. 119.~--WEST INDIA TRADE. 611
Brands, and regulating Abuses in the Plantation
7 & 8 \Vill. 3.
Trade ”; except in so far as the same are altered or ‘
repealed by this Act.
12, And be it further enacted, That all penalties and
forfeitures incurred in either of the said provinces under
this Act (except where it is otherwise provided), shall
and may be sued for and prosecuted in any court having
competent jurisdiction within such province respec-
tively; and the same shall and may be recovered,
divided, and accounted for in the same manner and
form, and by the same rules and regulations in all
respects, as other penalties and forfeitures for offences
against the laws relating to the customs and trade of
the said provinces respectively, shall or may by any
Act or Acts of the legislatures of such provinces be
directed to be sued for, prosecuted, recovered, divided,
and accounted for within the same respectively.
13. And whereas it is expedient to encourage the trade
between Canada and His Majesty’s colonies of New-
foundland, Nooa Scotia, New Brunswick, and Prince
Edward Island, by enabling the merchants and traders
of Newfoimdland to export from thence into Canada
rum and other spirits, the produce of the British West
India Islands, or any of His Majesty’s colonies on the
continent of South America, free of any duty which may
have been imposed upon its importation from any of the
places last aforesaid, and for which purpose to allow,
upon the export of such rum or other spirits, a drawback
of the full duties paid upon the importation thereof; be
it therefore enacted, That from and after the passing of
this Act, there shall be paid and allowed, upon the ex-
portation from any or either of the said colonies of
Newfoundland, Nova Scotia, New Brunswich, or Prince
Edward Island, into Canada, of rum or other spirits,
being the produce of the British West India Islands, or
any of His Majesty’s colonies on the continent of South
America, a drawback of the full duties of customs which
Recovery and
application of
penalties.
Drawback on
the exportation
of rum and
spirits from
Newfoundland,
&c. to Canada.
Q Q 2
612 3 GEO.4.c.119.-——PROV. CANADA TRADE. [1822. '
may have been paid upon the importation thereof from
any of the places last aforesaid, into any or either of the
said colonies of Neugfoun dland, Nova Scotia, New Bruns-
wide, or Prince Edward Island, upon a certiﬁcate being
produced, under the hands and seals of the collector and
comptroller of His Majesty’s customs at Quebec, certi-
fying that the said rum or other spirits have been duly
landed in Canada.
°“ 14. And be it further enacted, That no entry shall
drawback shall pass, nor any drawback be paid or allowed, upon the ex-
be paid. . . . . _
portatlon of rum or other splrlts from any or eIther of
the said colonies 'of Newfoundland, Nova Scotia, New
Brunswick, or Prince Edward Island, into Canada,
unless such entry be made in the name of the real owner
or owners, proprietor or proprietors of the said goods;
and that before such owner or owners, proprietor or pro-
prietors, shall receive the said drawback so allowed as
aforesaid, one or more of them shall verify upon oath,
upon the debenture to be made out for the payment of
such drawback, that he or they is or are the real owner
or owners of the said goods ; nor unless proof on oath
shall be made to the satisfaction of the collector and
comptroller of His Majesty’s customs at the port from
whence the said goods shall be so imported into Canada,
that the full duties due upon the importation of the said
goods at the said port had been paid and discharged:
Provided always, that in cases where the owners of the
said goods are resident in any other part of the British
dominions, it shall be lawful for their known and estab-
lished agents in the colonies from whence the said goods
shall be so imported into Canada, to take the necessary
oaths on behalf of the said owners.
Egpailiélfgsk how 15, And be it further enacted, That the said drawback
shall be paid by the collector of His Majesty’s customs
at the port from whence the said goods shall be so im-
ported into Canada, with the consent of the comptroller
there, out of any moneys in his hands arising from the
duties of customs.
1822.] 3 GEO. 4. c. l19.—-REGULATIGN OF DUTIES.
613
16. And be it further enacted, 'That no drawback
shall be paid and allowed as aforesaid, unless the said
rum or other spirits shall be duly entered for exportation
with the proper ofﬁcers of the customs, and actually
shipped on board the ship or vessel in which the said
goods are intended to be exported, within the space of
one year from the time such rum or other spirits were
originally imported into the colony from whence it is
intended to export them to Canada, nor unless such
drawback shall be claimed within one year after the
goods are so shipped for exportation.
1'7, And whereas since the division of the province of
Quebec into the provinces of Lower and Upper Canada,
divers regulations have from time to time been made, by
agreements concluded under the authority of Acts passed
by the legislatures of the said two provinces respectively,
concerning the imposing of duties upon articles imported
into the province of Lower Canada, and the payment of
drawbacks of such duties to the province of Upper
Canada, on account of the proportion of goods so im-
ported into Lower Canada, and passing from thence into
the said province of Upper Canada, and consumed there-
in ; the last of which agreements expired on the ﬁrst day
of July one thousand eight hundred and nineteen : And
whereas it appears by the report of the commissioners
last appointed for the purposes aforesaid, that the pro-
vince of Upper Canada claims certain arrearages from
the province of Lower Canada, on account of such draw-
backs, which claims are not admitted on the part of the
province of Lower Canada; and it further appears by
the report of the said commissioners, appointed on behalf
of both provinces for the purposes aforesaid, that they
have failed to establish any regulation for the period
beyond the ﬁrst day of July one thousand eight hundred
and nineteen, by reason that they could not agree upon
the proportion of duties to be paid to Upper Canada by
way of drawbacks: For remedy of the inconvenience
occasioned by the suspension of the said agreement, and
Rum to be ex-
ported from
Newfoundland
within one year
after ﬁrst im-
portation.
Regulations as
to settling the
proportions of
duties and
drawbacks be-
tween the pro-
vinces by
arbitrators.
614 3 GEO.4.c.119.—DISPUTE AS TO DUTIES. [1822.
for the satisfactory investigation and adjustment of the
said claims, be it enacted, That it shall and may be law-
ful for the Governor, Lieutenant-Governor, or person
administering the government of each of the said pro-
vinces of Upper and Lower Canada, so soon as conve-
niently may be after the passing of this Act, to appoint,
by commission under the great seal of his respective
province, one arbitrator; and that the said arbitrators so
appointed shall have power, by an instrument under
their hands and seals, to appoint a third arbitrator; and
in case of their not agreeing in such appointment within
one month from the date of the appointment of the
arbitrators so directed to be made on the part of the
respective provinces, or the last thereof if the said ap-
pointments shall not be made on the same day. His
Majesty, his heirs or successors, shall have power, by an
instrument under his sign manual, to appoint such third
arbitrator, who (if appointed in manner last mentioned)
shall not be an inhabitant of either of the said provinces ;
and that the tln'ee arbitrators so appointed as aforesaid,
shall have power to hear and determine all claims of the
province of Upper Canada upon the province of Lower
Canada, on account of drawbacks or proportion of duties
under agreements made and ratiﬁed by the authority of
the legislatures of the said two provinces, according to
the fair Lmderstanding and construction of the said
agreements; and also to hear any claim which may be
advanced on the part of the province of Upper Canada,
to a proportion of duties heretofore levied in Lower
Canada under British Acts of Parliament, the division
of which duties shall not have been embraced within
the terms of any provisional agreement, and to report
the particulars of any such claim, with the evidence
thereupon, to the Lords Commissioners of His Majesty’s
Treasury for the time being; and if it shall appear to
the Commissioners of His Maj esty’s Treasury that any
sum is justly due from the province of Lower Canada
to the province of _Upper Canada on account of such
last-mentioned claim, they shall signify the same, to‘
18221
3 GEO. 4. c. 119.—;-PENALTIES. 615
gether with the amount, to the Governor or person
administering the government of the province of Lower
Canada for the time being, who shall thereupon issue
his warrant upon the Receiver - General of Lower
Canada, to pay such amount to the Receiver-General
of Upper Canada, in full discharge of any such claims.
18, And be it further enacted, That the said arbitra-
tors shall have power to send for and examine such
persons, papers, and records as they shall judge
necessary for their information in the matters referred
to them ; and that if any person or persons shall refuse
or neglect to attend the said arbitrators, or to produce
before them any papers or documents, having been duly
served in either province with reasonable notice in
writing for that purpose, he, she, or they shall forfeit
and pay the sum of ﬁfty pounds, to be recovered by bill,
plaint, or information, in any court having competent
jurisdiction within the province in which such person
usually resides, to be applied towards the support of the
civil government of the said province, and to be
accounted for to His Majesty, through the Lords Com-
missioners of His Majesty’s Treasury for the time being,
in such manner and form as it shall please His Majesty
to direct.
19, And be it further enacted, That the witnesses to
be produced before the said arbitrators, if it is desired
by either of the said arbitrators, shall and may be sworn
before any of His Majesty’s justices of the peace within
either of the said provinces, or before any one of the
said arbitrators, who are hereby empowered jointly or
severally to administer such oath; and that if any per-
son shall, in any such oath so taken as aforesaid, wilfully
forswear himself, he shall be deemed guilty of wilful
and corrupt perjury.
20. And be it further enacted, That in case of the
death, removal, or incapacity of either of the said arbi-
trators before making an award, or in case the third
Power of arbi-
trators to send
for persons and
records.
Penalty on per-
sons refusing,
£50.
\Vitnesses to be
sworn.
Penalty for
false swearing.
Appointing
arbitrators on
vacancies.
616 3 GEO. 4. c. 119.—-ARBITRATORS. [1822.
arbitrator chosen or appointed as aforesaid shall refuse
to act, another shall be appointed in his stead, in the
same manner as such arbitrator so dead, removed, or
become incapable or refusing to act as aforesaid, was
originally appointed; and that in case a third arbitra-
tor shall be appointed by His Majesty as herein-before
mentioned, it shall and may be lawful for the Governor-
in-Chief in and over the said provinces, to determine
the amount of remuneration to be paid to such arbitra-
tor, which amount shall be defrayed in equal proportions
‘by. each province, and shall be paid by warrants, to be
issued for that purpose by the Governor, Lieutenant-
Governor, or person administering the government of
each province, upon the Receiver-General thereof re-
spectively.
321361;: am‘ 21, And be it further enacted, That the award of the
ﬁnal. majority of the said arbitrators, so far as the same shall
be authorized by this Act, shall be ﬁnal and conclusive
as to all matters therein contained; and that if either
of the arbitrators nominated by the Governor, Lieu-
tenant-Governor, or person administering the govern-
ment of either of the said provinces, shall refuse or
neglect to attend, on due notice being given, the two
remaining arbitrators may proceed to hear and determine
the matters referred to them, in the same manner as if
he were present.
> Award t0 be 22. And be it further enacted, That the said arbitra-
cert'iﬁed to the _ _ _ _
Treasury and tors, or a majority of them as herein-before mentIoned,
islliiifinor’ shall certify the award to be made by them in the
Provinces‘ premises, under their hands and seals, to the Com-
missioners of His Majesty’s Treasury of the United
Kingdom of Great Britain and Ireland, and to the
Governor, Lieutenant-Governor, or person administering
the government of each of the said provinces ; and that
ﬁglgilsrggd. if any sum be directed by the said award to be paid to
the province of Upper Canada by the province of Lower
Canada, it shall and may be lawful for the Governor,
1822.] 3 GEO. 4. G. 119.—-L. a U. CANADA TAXES. 617
Lieutenant - Governor, or person administering the
government of the said province of Lower Canada, and
he is hereby required to issue his warrant upon the
Receiver-General of the province of Lower Canada, in
favour of the Receiver-General of the province of Upper
Canada, for the sum so awarded; which sum shall be
accordingly paid by the Receiver-General of Lower
Canada, in discharge of such warrant, and shall be
accounted for by him to the Lords Commissioners of
His Majesty’s Treasury for the time being, in such
manner and form as His Majesty, his heirs and
successors, shall be graciously pleased to direct.
23. And be it further enacted, That the arbitrators
to be appointed under this Act shall have power to hear
and determine any claim which may be advanced on
the part of the province of Lower Canada, upon the
province of Upper Canada, being of the same descrip-
tion as those which by this Act may be preferred to the
same arbitrators on the part of Upper Canada ; and
that their award thereupon shall be ﬁnal and conclusive,
and shall be carried into eﬁect if the same be made in
favour of the province of Lower Canada, in the same
manner as is herein directed with respect to any award
which may be made in favour of the province of Upper
Canada.
24, And be it further enacted, That of all duties
which have been levied in the province of Lower
Canada since the ﬁrst day of July one thousand eight
hundred and nineteen, under any Act passed in the said
province, upon any goods, wares, merchandise, or com-
modities imported by sea into the province of Lower
Canada, and also of all duties which after the passing
of this Act, and before the ﬁrst day of July one
thousand eight hundred and twenty-four, shall be levied
in the province of Lower Canada, under any Act passed
in the said province, upon any goods, wares, merchan-
dises, or commodities imported by sea into the said
province of Lower Canada, the province of Upper
Power to arbi-
trators to deter-
mine claims
advanced by
Lower Canada
on Upper
Canada.
Proportion of
duties arising
in Lower Can-
ada shall be one
ﬁfth to Upper
Canada.
618 3 GEO. 4. c. 119.--PAYMENT or DUTIES. [1822.
After July 1,
1824, divisions
of duties shall
be awarded by
_ arbitrators as
herein-before
mentloned.
Award to be
made every
four years.
Canada shall be entitled to have and receive one-ﬁfth
part as the proportion of duties arising and due to the
said province of Upper Canada upon such importations ;
and that the Governor, Lieutenant-Governor, or person
administering the government of the province of Lower
Canada, shall and may issue his warrant forthwith upon
the Receiver-General of Lower Canada, in favour of the
Receiver-General of the province of Upper Canada, for
such proportion of the duties as shall have been received
in the province of Lower Canada before the passing of
this Act, and shall and may on the ﬁrst day of January
and the ﬁrst day of July, in each and every year there-
after, issue his warrant upon the Receiver-General of
Lower Canada in like manner, for the payment to the
Receiver-General of Upper Canada, of such sum as may
be then ascertained to be due on account of the said
proportion, according to the provisions of this Act.
25, And be it further enacted, That immediately
after the said ﬁrst day of July one thousand eight hun-
dred and twenty-four, the proportion to be paid to Upper
Canada for the four years next succeeding, of duties
levied in the province of Lower Canada, under the
authority of any Act or Acts passed or to be passed
therein, upon goods, wares, and commodities imported
therein by sea, shall and may be ascertained by the
award of arbitrators, to be appointed in the same manner
and with the same powers as herein-before provided with
respect to the arbitrators to whom the question of arrears
is to be referred, and that arbitrators shall in like man-
ner be appointed, and an award made once after every
four years thereafter, for the purpose of establishing such
proportion from time to time; and all and every the pro-
visions contained in this Act, respecting the appointment,
powers, and remuneration of the arbitrators to be ﬁrst
appointed after the passing thereof, and regarding the
execution of their duty, shall apply and extend to the
arbitrators to be appointed for the purposes last herein
mentioned.
1822.] 3 GEO. 4. c. 119.-—EXPENSES or JUSTICE. 619
26. And be it further enacted, That after the said
ﬁrst day of July one thousand eight hundred and twenty-
four, and until a new proportion of duties, to be paid to
Upper Canada, shall be established, as herein-before
provided, and also at all times hereafter, in default of
any such proportion being appointed, the proportion of
duties last assigned to be paid to Upper Canada under
the authority of this Act, shall continue to be paid by
the province of Lower Canada, and warrants shall issue
for the payment of the same, in the same manner as for
the period before the same ﬁrst day of July one thousand
eight hundred and twenty-four : Provided always, that
it shall be in the power of the arbitrators nevertheless,
by their subsequent award, to alter such proportion from
Proportion
hereby esta-
blished to he
paid until a
new one is
made.
the period for which it was last established, if it shall ~
appear to them just so to do.
27, And whereas by a certain Act of the Parliament
of Great Britain passed in the fourteenth year of His
late Majesty’s reign, intitulec “ An Act to establish a
Fund towards farther defrayin g the Charges of the Ad-
ministration of Justice and Support of the Civil Govern-
ment within the Province of Quebec in America,” certain
duties were imposed upon goods and commodities im-
ported into the said province, which duties are by the
said Act directed to be applied, under the authority of
the Lord High Treasurer, or Commissioners of His
Majesty’s Treasury, in making a more certain and
adequate provision towards defraying the expense of the
administration of justice, and the support of the civil Go-
vernment in the said province of Quebec ; and since the
division of the said province of Quebec into the provinces
of Upper and Lower Canada, it has been contended, on
behalf of the said provinces, that the proceeds of such
duties should be distributed between the said two pro-
vinces in proportion to the amount of expenses defrayed
by each respectively towards the administration of
justice and the support of its civil Government, and not
in proportion to the estimated consumption within either
Proportion of
duties how to
be allotted be~
tween the two
provinces.
14 Geo. 3. c. 88.
620 3 GEO. 4.0. 119.—OLD POWER or REPEAL. [1822:
Duties imposed
by Lower Can-
ada to remain,
in force till
repealed or
altered by a
legislative Act
of that pro-
vince.
province of the articles upon which such duties shall
have been paid; be it therefore enacted, That it shall be
lawful for the arbitrators to be appointed, from time to
time, for the purpose of establishing the proportion which
shall be paid to Upper Canada, of such duties as now
are, or hereafter may be imposed, by Acts passed in the
province of Lower Canada, to receive the claims in
behalf of each province with respect to its proportion of
duties levied under the said Act passed in the fourteenth
year of His said late Majesty’s reign, since the expiration
of the last provincial agreement heretofore ratiﬁed
between the said two provinces, or which may hereafter
be levied under the authority of the said Act, upon goods
and commodities imported into Lower Canada, and to
report the same, with the evidence thereon, to the Lords
Commissioners of His Majesty’s Treasury for the United
Kingdom of Great Britain and Ireland for the time
being, in order that they may make such order respecting
the proportion in which the same shall be expended
within each of the said provinces respectively, for the
purposes mentioned in the said Act, as to them shall
seem meet: Provided always nevertheless, that until
such order shall be made by the Lords Commissioners of
His esty’s Treasury as aforesaid, the proceeds of such
duties shall be distributed in the same proportion be—
tween the said two provinces, as the duties levied under
the provincial Acts of the province of Lower Canada
within the same period, subject nevertheless to be in-
creased or diminished, as respects either of the said
provinces, by any subsequent order of the said Lords
Commissioners, extending to the period for which no
such order had before been made.
28, And whereas the division of the province of
Quebec, into the two provinces of Upper and Lower
Canada, was intended for the common beneﬁt of His
Majesty’s subjects residing within both of the newly
constituted provinces, and not in any manner to obstruct
the intercourse or prejudice the trade to be carried on
1822. 3 GEO. 4. c. ll9.--COMMON BENEFITS. 621
by the inhabitants of any part of the said late province
of Quebec with Great Britain, or with other countries ;
and it has accordingly been made a subject of mutual
stipulation between the said two provinces, in the several
agreements which have heretofore subsisted, that the
province of Upper Canada should not impose any duties
upon articles imported from Lower Canada, but would
permit and allow the province of Lower Cai'zada to
impose such duties as they might think ﬁt, upon articles
imported into the said province of Lower Canada; of
which duties a certain proportion was by the said agree-
ments appointed to be paid to the province of Upper
Canada; And whereas in consequence of the incon-
veniences arising from the cessation of such agreements
as above recited, it has been found expedient to remedy
the evils now experienced in the province of Upper
Canada, and to guard against such as might in future
arise from the exercise of an exclusive control, by the
Legislature of Lower Canada, over the imports and
exports into and out of the port of Quebec; and it is
further expedient, in order to enable the said province
of Upper Canada to meet the necessary charges upon
its ordinary revenue, and to provide with sufficient cer-
tainty for the support of its civil government, to estab-
lish such control as may prevent the evils which have
arisen or may arise from the Legislature of Lower
Canada suffering to expire unexpectedly, or repealing
suddenly, and without affording to Upper Canada an
opportunity of remonstrance, existing duties, upon
which the principal. part of its revenue, and the neces-
sary maintenance of its Government may depend; be it
therefore enacted, That all and every the duties which,
at the time of the expiration of the last agreement be-
tween the said provinces of Upper and Lower Canada,
were payable under any Act or Acts of the province of
Lower Canada, on the importation of any goods, wares,
or commodities into the said province of Lower Canada
(except such as may have been imposed for the regula-
tion of the trade by land or inland navigation, between
622 3 (11310.40.119.--ENGOURAGEMENT or TRADE. [1822.
the said province and the United States of America),
shall be payable and shall be levied according to the
provisions contained in any such Acts, until any Act
or Acts for repealing or altering the said duties, or any
part thereof respectively, shall be passed by the Legis-
lative Council and Assembly of the said province of
Lower Canada, and until such Act or Acts, repealing
or altering such duties, shall, after a copy thereof has
been transmitted to the Governor, Lieutenant-Governor,
or person administering the government of the province
of Upper Canada, be laid before both houses of the
Imperial Parliament, according to the forms and pro-
visions contained in a certain Act of the Parliament of
_ Great Britain, passed in the thirty-ﬁrst year of the
31680-3-6-31- reign of His said late Majesty, intituled “An Act to
repeal certain parts of an Act passed in the fourteenth
year of His Majesty’s reign, intituled ‘An Act for
making more effectual Provision for the Government of
the Province of Quebec, in North America,’ and to
make further Provision for the Government of the said
Province,” and the royal assent thereto proclaimed
within the province of Lower Canada, according to the
provisions of the said last‘mentioned Act.
No Actof 29, And be it further enacted, That from and after.
Legislature im- , , , .
posing duties the passmg of this Act, no Act of the Leglslature of
h b th . . . ,
3,025,? of the provmce of Lower Canada, whereby any addltlonal
Eggfegpie‘gtdez or other duties shall or may be imposed on articles im-
fgigegeglggeunﬁl ported by sea into the said province of Lower Canada,
Parliament. and whereby the province of Upper Canada shall or
may in any respect be directly or indirectly affected,
shall have the force of law until the same shall have
been laid before the Imperial Parliament, as provided
in certain cases by the said Act passed in the thirty-ﬁrst
year of His said late Majesty’s reign, and the royal
assent thereto published by proclamation in the said
province of Lower Canada, a copy of such Act having,
within one month from the time of presenting the same
for the royal assent in the said province, been trans-
1822.] 3 GEO. 4. c. 119.—-INTER. PROV. TRAFFIC. 623
mitted by the Governor, Lieutenan t-Governor, or person
administering the government of the province of Lower
Canada, to the Governor, Lieutenant-Governor, or
person administering the government of the province
of Upper Canada: Provided always nevertheless, that
it shall not be necessary to transmit any such Act to
be laid before the Imperial Parliament, if, before the
same shall have been presented for the royal assent
within the said province of Lower Canada, the Legis-
lative Council and House of Assembly of the said
province of Upper Canada shall, by address to the
Governor, Lieutenant-Governor, or person administer-
ing the government of the said province of Upper
Canada, pray that their concurrence in the imposition
of the duties intended to be imposed by such Act may
be signiﬁed to the Governor, Lieutenant-Governor, or
person administering the government of the said pro-
vince of Lower Canada.
30, And whereas it is expedient that the productions
of the province of Upper Canada should be permitted
to be exported without being made subject by any Act
of the province of Lower Canada, either directly or in-
directly, to duties or impositions on their arrival in that
province, or in passing through the waters thereof: Be it
enacted, That from and after the passing of this Act,
all and every the boats, scows, rafts, cribs, and other
craft belonging to any of His Majesty’s subjects, and
coming from the province of Upper Canada into the
province of Lower Canada, not laden with the produc-
tions of any foreign country, shall be allowed freely to
pass into and through the said province, and shall not
be subject to any rate, tax, duty, or imposition, other
than any charge which may now exist for pilotage, or
which may now be established for toll at any lock or
other work now actually erected on the navigable
waters thereof; any law, statute, or usage of the pro-
vince of Lower Canada to the contrary notwithstand-
ing; and that the expense of improving the navigation
Boats and other
craft belonging
to His Ma-
jesty’s subjects
may go from
Upper Canada
into Lower
Canada, not
laden with
foreign produc-
tions, without
being subject to
any duty.
62A‘ 8 8.120. 4. c. 119.—-ALIENATION on [1822.
How expenses
of improvmg
the navigatlon
shall‘ be paid.
Lands held in
ﬁef and seig-
nory ~may, on
petition of the
owners to His
Majesty, &c.,
be changed to
the tenure of
free and com-
mon socage.
of the waters of the river Saint Lawrence ' shall iii'
future be defrayed by such measures and in such pro-
portions as the arbitrators to be appointed under the
provisions of this Act shall determine, upon the prayer
of either province: rovided always, that no such de-
termination shall be carried into eﬁect until sanctioned ‘
and enacted by the legislatures of both of the said
provinces. '
31, And whereas doubts. have been entertained
whether the tenures of lands within the said ‘provinces
of U per and Lower Canada holden in ﬁef and seignory
can legally be changed: And whereas it may materially
tend to the improvement of such lands, and‘ to the
general advantage of the said provinces, that such ten-
ures may henceforth be changed in manner herein-after
mentioned: Be it therefore further enacted and de—
clared, That if any person or persons holding any lands
in the said provinces of Lower and Upper Canada, or
‘either of them, in ﬁef and seignory, and having legal '
power and authority to alienate the same, shall at any
time from and after the commencement of this Act,
surrender the same into the hands of His Majesty, his
heirs or successors, and shall by petition to His Majesty,
or to the Governor, Lieutenant-Governor, or person ad-
ministering the government of the province in which
the lands so holden shall be situated, set forth that he,
she, or they is or are desirous of holding the same in
free and common socage, such Governor, Lieutenant-
Governor, or person administering the government of
such province as aforesaid'in pursuance of. His Majesty’s
instructions, transmitted through his principal Secre-
tary of State for Colonial Affairs, and by and with the
advice and consent of the Executive Council of such
province, shall cause a fresh grant to be made to such
person or" persons of such lands to be holden in free and
common socage in like manner as lands are now holden
in free and common socage in that part of Great Britain
called England,- subject nevertheless to payment to His
1822.] gene-.4. e'na—ABoLIsHme or TENURESQ ' 625
~~Majesty-, by such grantee or grantees, of such sum or
sums of money as and for a commutation for the ﬁnes
and other dues which would have been payable to His
Majesty under the original tenures, and to such condi-
tions as to His Majesty, or to the said Governor,
Lieutenant-Governor, or person administering the go-
vernment as aforesaid, shall- seem just and reasonable:
Provided always, that on any such fresh grant being
2 made as aforesaid, no allotment or appropriation of
lands for the support and maintenance of a Protestant
clergy shall be necessary; but every such fresh grant
shall be valid and effectual without any speciﬁcation of
lands for the purpose aforesaid; any law or statute to
the contrary thereof in anywise notwithstanding.
32. And be it further enacted, That it shall and may
be lawful for His Majesty, his heirs and successors, to
commute with any person holding lands at Cens et
Rentes in any censive or ﬁef of His Majesty within
either of the said provinces, and such person may
obtain a release from His Majesty of all feudal ‘rights
arising by reason of such tenure, and receive a grant
from His Majesty, his heirs or successors, in free and
common socage, upon payment to His Majesty of such
sum of money as His Majesty, his heirs or successors,
may deem to be just and reasonable, by reason of the
release and grant aforesaid; and all such sums of
money as shall be paid upon any commutations made
by virtue of this Act shall be applied towards the
administration of justice and the support of the civil
government of. the said province.
33, And be it further enacted, That if any person or
persons shall be sued or prosecuted for anything done
or to be done in pursuance of this Act, such person or
. Persons may plead the general issue, and give this Act
andthe special matter in evidence; and if the plaintiﬁ
or plaintiffs, prosecutor or prosecutors, shall become
non-suit, or forbear the prosecution, or discontinue his,
s 2340. R 3
His Majesty
may commute
with persons
holding lands
at Cens et
Rentes.
General issue.
626 3 GEO. 4. c. 119.—SCHEDULES.
[1822‘
Treble ‘costs.
her, or their action, or if a verdict shall pass against
him, her, or them, the defendants shall have treble
costs, and shall have the like remedy for the same as
in cases where costs are by law given to defendants.
'scHEDULEs TO WHICH THIS ACT REFERs.
scHEDULE (11.)

Asses. Live Stock of any sort
’ Lumber.
Barley. Logwood.
Beans.
Biscuit. Mahogany and other _ Wood for
Bread. Cabinet Wares.
Beaver, and all sorts of Fur. Masts.
Bowsprits. Mules.
Calavances. Neat Cattle.
Cocoa.
Cattle. Oats.
Cochineal.
Coin and Bullion. Pease.
Cotton Wool. Potatoes.
Poultry.
Drugs of all sorts. Pitch,
Diamonds and Precious Stones.
Rye.
Flax. Rice_
Fruit and Vegetables.
Fustiek, and all sorts of Wood Staves
for Dyers’ use. Skins"
Flow‘- Shingles.
Grain of any sort. Sheep'
Garden Seeds. T
ar.
Hemp. ,galgow'
Heading Boards. To acco.’
Horses. urpentlne.
Hogs. Tlmber.
Hides. Tortolse-shell.
Hay.
Hoops. ‘ " '_ W001’
Hardwood or Mill Timber. Wheat
Indigo. Yards.
SCHEDULE £ 8. d.
Barrel of Wheat Flour, not weighing more than 196 lbs. net Sterling.
- _ - - f - — - 0 5 Barrel of Biscuit, not weighing more than 196 lbs. net weight 0 2 6 1
For every cwt. of Biscuit ‘- - - - - O 1 6 _,
For every 100 lbs. of Bread, made from wheat or other grain,
imported in bags or packages 7 - - - - 0 2 6
1824.] 5 (4110.4. 0. 67.—JUSTICE ‘IN NEWFOUNDLAND. 627
S
For every barrel of Flour, not weighing more than 196 lbs.
made from Rye, Peas, or Beans - - - -
For every bushel of Peas, Beans, Rye, or Calavances -
Rice, for every 100 lbs. net weight - - - -
For every 1,000 Shingles, called Boston Chips, not more than
12 inches in length - - - - -
For every 1,000 Shingles, being more than 12 inches in
length - - - - - - -
For every 1,000 Red Oak Staves - - - -
For every 1,000 White Oak Staves or Headings - -
For every 1,000 Feet of White or Yellow Pine Lumber, of
one inch thick - - - - - -
For every 1,000 feet of Pitch Pine Lumber - - -
Other kinds of Wood and Lumber, per 1,000 feet - -
For every 1,000 W ood Hoops - - - -
Horses, for every £100 of the value thereof - — -
Neat Cattle, for every £100 of the value thereof - -
All other Live Stock, for every £100 of the value thereof -
01-10 0 0000382
H H I go»
OCOUlCDP—H—I Oil—"PP \T NON):-
<13
OOOCJOOOO 000 O GIQIO‘."
5 see. 4. (1824) c. 67.
Repealed in part to the effect of re-annexing part of
the coast of Labrador, &c. to Lower Canada, by
6 Geo. 41. c. 59. s. 9. Certain words repealed by S. L. R.
1890 (No. 1). See ante, 49 Geo. 3. c. 27. Continued in
force by 10 Geo. 41. c. 17., and by 2 8t 8 Will. 41. c. 78.,
until altered by the advice of the House of Assembly.
An Act for the better Administration of Justice
in Newfoundland, and for other Purposes.
[17th June 1824.]
HEREAS it is expedient to make further provi-
sion for the administration of justice in the
colony of Newfoundland ;' be it therefore enacted by the
King’s most Excellent Majesty, by and with the advice
and consent of the lords spiritual and temporal, and
commons, in this present Parliament assembled, and by
the authority of the same, That it shall and may be
lawful for His Majesty, by his charter or letters patent
under the great seal, to institute a Superior Court of
Judicature in Newfoundland, which shall be called
“ The Supreme Court of Newfoundland ” ,- and the said
court shall be a court of record, and shall have all
civil and criminal jurisdiction whatever in Newfound-
land, and in all lands, islands, and territories dependent
' R R 2
His Majesty
may institute a
Superior Court
of Judicature in
Newfoundland,
which court
shall be a court
of oyer and ter-
miner and
general gaol
delivery.
628 5 e120. 4.. c. (17.-s. c., NEWFOUNDLAND. [1824.
upon the Government thereof,‘ as fully and amply, to
all intents and purposes, as His Majesty’s Courts of
King’s Bench, Common Pleas, Exchequer, and High
Court of Chancery, in that part of Great Britain called
England, have, or any of them hath; and the said
Supreme Court shall also‘ be a court of oyer and ter-
miner and general gaol delivery in and for Newfound-
land, and all places within the Government thereof;
and shall also have jurisdiction in all cases of crimes
and misdemeanors committed on the banks of New~
foundland, or any of the seas or island to which ships
or vessels repair from Newfoundland for carrying on
the ﬁshery.
tsyg‘aeﬁdﬂggrg 2, And be it further enacted, That the said Supreme
chief judge and Court shall be holden by a chief judge and two assistant
two asslstant ' dges, being respectively barristers in England or
judges appoint- J
“WY HiSMa‘ Ireland of at least three years standing, or in some of
jesty, who may
His Majesty’s colonies or plantations, who shall be
others. appointed to such their offices by His Majesty, his
heirs and successors: Provided always, that it shall be
lawful for His Majesty, his heirs and successors, from
time to time as occasion may require, to remove and
displace any such chief judge or assistant judge as
aforesaid, and in his stead to appoint any other ﬁt and
proper person, being a barrister as aforesaid, to be the
chief judge or assistant judge of the said court, as the
Governor of case may be : And provided also, that in case any such
a chief judge or assistant judge shall be absent from
Newfoundland, or die, or resign. such his office, or by
reason of sickness or otherwise shall become incapable
of performing the duties thereof, then and in every
such case it shall be lawful for the Governor or acting
Governor of Newfoundland, for the time being, to
nominate and appoint some ﬁt and proper person to act
as chief judge or assistant judge, as the case may he, in
the place or stead of the judge so being absent, dying,
resigning his office, or becoming incapable of perform-
ing the duties thereof, until such judge shall resume
1824.] 5 GEO. 4. c. 67.— COURTS OF VICE-ADM. 629
the duties of his office, or until a successor shall be
appointed by His Majesty, his heirs and successors; and
the said chief judge and assistant judges shall respec-
tively have and exercise such and the like powers and
authorities in Newfoandland, and in all places de-
pendent upon the Government thereof, as any judge of
any of His Majesty’s said Courts of King’s Bench,
Common Pleas, and Exchequer, or as the Lord High
Chancellor of Great Britain, hath or exercises in
England.
3, And be it further enacted, That all issues of fact
which may be joined between the parties in any action
at law originally brought before the said Supreme
Court of Record, or which may be joined upon any
criminal information or prosecution depending in that
court, shall be tried at the town of Saint John’s in the
island of Newfoundland, by a jury of twelve men; and
for the purpose of hearing and trying all suits, actions,
and all informations, prosecutions, and other proceed-
ings, of what nature or kind soever, which may be
brought or commenced in the said Supreme Court, one
or more term or terms, or session or sessions of the said
court, shall be held at the town of Saint John’s afore-
said, in each year, by the said chief judge and assistant
judges, at such times as the Governor or acting Gover-
nor of the said colony shall from time to time, by any
proclamation to be by him for that purpose issued,
direct and appoint.
4. And be it further enacted, That as often as any
information, action, or suit shall be brought or prose-
cuted before the said Supreme Court, for the breach or
violation of any law relating to the trade or revenue of
the British colonies or plantations in America, such
information, action, or suit shall be heard and deter-
mined by the said court, according to the course of
proceeding in similar cases in the Courts of Vice-Ad-
miralty in the said colonies or plantations; and that it
Issues of fact
to be tried at
Saint J ohn’s
by a jury.
Appointment
of sessions.
Actions in
breach of any
law relating to
trade of the
British colo-
nies in America
to be tried ac—
cording to pro—
ceedings in
Courts of Vice-
Admiralty.
630 5 GEO. 4. c. 67.—PROBATES. [1824.
shall and may be lawful for the party or parties feeling
aggrieved by the judgment or decree of the said
Supreme Court, in any such case, to appeal from such
judgment or decree to the High Court of Admiralty, or
to His Majesty in Council, under such and the like rules
and regulations as are observed in appeals from the said
Courts of Vice-Admiralty.
Appeal.
Supreme CW‘? 5, And be it further enacted, That the said Supreme
may grant ad— . . .
mmlst-ratwn of Court shall have power to grant admimstration of the
iiilfesgiggsailh eﬁects of intestates, and the probate of wills; and that
rggrllg‘j‘tgjcf’f the eﬁects of deceased persons shall not be administered
within the island of Newfoundland, or any island, place,
or territory dependent upon the Government thereof,
unless administration or probate shall have been duly
granted by the said Supreme Court; and in all cases
where the executor or executors of any will in N ew-
foundland, or the dependencies thereof, upon being
duly cited, shall refuse or neglect to take out probate
as aforesaid; or where the next of kin shall be absent
from Newfoundland, and the effects of the deceased
shall appear to the said Supreme Court to be exposed
and liable to waste, it shall be lawful for the said
Supreme Court to authorize and empower the registrar
or clerk of the said court, or some other ﬁt and proper
person, to collect the said effects, and hold, or deposit,
or invest the same in such manner and place, or upon
such security, and subject to such orders and directions
as shall be made by the said Supreme Court in respect
of the custody, control, or disposal of such effects.
Supreme 9211M 6, And be it further enacted, That the said Supreme
ma a 0111 I . ' -
guaiidiiiis for Court shall have power and authorlty to appoint
' f t <1 . . ,
13,21,336“ guardians and keepers for infants and then estates,
according to the order and course observed in such cases
in England ;. and also to appoint guardians and keepers
of the persons and estates of natural fools, and of such
as are or shall be deprived of their reason or under~~
standing, so as to be unable to govern themselves and their
1824.] 5 e110. 4. c. erL-emcUIT COURTS. 631
affairs, which the said Supreme Court shall have power
and authority to enquire of and determine, by inspection
of the person, or by such other ways and means as to
such Supreme Court shall seem best for ascertaining
the truth.
7. And be it further enacted, That it shall and may gorgrnoli my
be lawful for the Governor or acting ‘Governor for the tehigeoilis-
time being of Newfoundland, by any proclamation or mats‘
proclamations to be by him for that purpose issued, to
apportion and divide the said colony into three several
districts, and to ﬁx and ascertain the boundaries and
limits of every such district, and such boundaries or
limits from time to time to alter as occasion may
require: Provided always, that such apportionment of
the said colony into such districts as aforesaid, be made
in such manner as to such Governor or acting Governor
may appear to be best adapted for enabling the inhabi-
tants of the said colony to resort with ease and con-
venience to the circuit courts to be therein established
as after mentioned.
.8. And be it further enacted, That it shall and may Elite
be lawful for His Majesty, by any such charter or circuit courts.
letters patent as aforesaid, to institute circuit courts in
each of the three districts in which the said colony may
be so divided as aforesaid; and each of the said circuit
courts shall be holden once at least in each year by the
said chief judge, or by one of the said assistant judges
of the said Supreme Court of Newfoundland, at such
times, and at such one or more place or places within
each of the said districts, as the Governor or acting
Governor for the time being of Newfoundland shall from
time to time direct and appoint.
9, And be it further enacted, That the said circuit Circuit courts
. t b u‘ 1
courts shall be respectively courts of record, and shall, ,g,,§df°,‘;§,§_°
within the district in which it may be holden, have and :1?“
exercise all such and the same jurisdiction, powers, and abs Sturremet
our , excep
authority, as is hereby vested in the said Supreme Court in the cases of
632 5 e110. 4. c. 67.--TRIAL or CRIMES.
[1824.
treason and
felonies, not
within beneﬁt
of clergy, 85c.
Crimes cogniz-
able in circuit
courts and civil
actions to be
tried by jury
according to
the law of
England.
But where a
jury shall not
be formed,
trials for crimes
shall be had by
the circuit
judge and three
assessors, being
justices of
peace, and no-
minated by the
Governor.
Such assessors
liable to be
challenged.
of Newfoundland throughout the whole of the said
colony; saving and excepting the trying and deter-
mining of treasons, or misprisions of treason, and
felonies not within the beneﬁt of clergy, and the hearing
or determining of any information, suit, or action, for
the breach or violation of any Act of Parliament re-
lating to the trade and revenue of the British colonies
in America ,- all which said crimes and offences, infor-
mations, suits, and actions, shall be tried, enquired of,
heard, and determined in the said Supreme Court of
Newfoundland, and not elsewhere within the said
colony.
10, And be it further enacted, That all crimes and
misdemeanors, cognizable in the said circuit courts, and
all issues of fact which may be joined between the
parties in any civil action, depending in the said circuit
courts, shall be enquired of, heard, and determined by
the said circuit judge, and a jury of twelve men, accord-
ing to the rules and course of the law of England, as
far as the situation and circumstances of the said colony
will permit.
11, Provided nevertheless, and be it further enacted,
That if upon the trial of any crimes or misdemeanors
before any of the said circuit courts, twelve good and
lawful men shall not appear to form a jury, then and in
all such cases such trial shall be had by the circuit
judge and three assessors, being justices of the peace in
and for the said colony, or for some district thereof;
and the said justices shall be nominated from time to
time to serve as such assessors as aforesaid by the
Governor or acting Governor for the time being of the
said colony, and. shall severally be liable to be challenged
or objected to upon the special ground of direct interest
or affection, to be speciﬁed in open court at the time of
challenge; and in case of such challenge or objection
being allowed by the judge of the said circuit court, the
justice of the peace so challenged or objected to shall
be succeeded by another such justice of the peace,’ who
182i] 5 (mo. 4. c. 67.-—EVIDENOE IN wnrrme. 633
shall in like manner be nominated by the Governor or
acting Governor for the time being as aforesaid, and be
liable in the same manner to challenge or objection,
until three such justices of the peace shall appear duly
qualiﬁed for the trial of any offender in the said circuit
courts respectively; and the said justices of the peace
shall thereupon severally take and repeat in open court
the same oath as is taken by petit jurors impannelled
for the trial of any crime or misdemeanor in a court of
record in England; and the judges of the said circuit
courts respectively shall, together with the said three
assessors, give their verdict upon every such trial in
open. court; but no person shall be found guilty by
any such verdict unless the judge of the said court,
and two at the least of his said assessors, shall concur
in such verdict ; and the proceedings in the said circuit
courts respectively shall be under the control and
direction of the respective judges thereof, and all
matters of law arising in the course of any trial shall
be determined by such judges respectively.
12, Provided also, and be it further enacted, That if
upon the trial of any issue or issues of fact joined
between the parties in any civil suit or action depend-
ing in any of the said circuit courts, twelve good and
lawful men shall not appear to form a jury, all such
issues of fact shall be tried and decided by the judge
of such court alone, and without a jury; and that in
all cases where the sum or matter at issue in any such
suit or action shall exceed or be of the value of more
than ﬁfty pounds sterling British money, the judges of
the said courts respectively shall cause the evidence on
any such hearing or trial as aforesaid to be taken down
in writing by the clerk, or other proper officer, in open
court, in the presence of the witnesses respectively
giving the same, and the evidence so taken shall be
entered upon the proceedings of the said courts respec-
tively, and be of record; and in every case in which
any appeal shall be made and allowed under the pro-
Civil actions to
be tried by the
judge of the
court alone
where jury
shall not be
formed.
Evidence,
where the
matter at issue
is above the
value of £50,
to be in writing.
On appeal,
documents to
be produced.
634 5 (inc. 4.. c. e7.-PRocEDURE. [1824.
On application
of either of the
parties before
trial, though
the sum does
not amount to
£50, the judge
may permit the
evidence to be
recorded.
Appeal to the
Supreme Court
may be made
on giving
' notice.
visions of this Act, from any judgment of the said
circuit courts, not founded on the verdict of a jury,
copies of all documents and papers which shall have
been produced and given in evidence, shall be certiﬁed
by the said clerk, or other proper ofﬁcer, as authentic ;
and also copies of any documents and papers which
shall have been produced and tendered in evidence and
rejected, shall, if required by the party producing the
same, be in like manner authenticated, but marked by
such oﬁicer as aforesaid as rejected, in order that all
such copies may be annexed to the record, as part
thereof, 1n case of appeal.
13, And be it further enacted, That it shall be lawful
for the judges of the said circuit courts respectively,
on the application of either of the parties, plaintiﬁ or
defendant, at or before the trial of any issue of fact
joined in any civil suit or action commenced in the said
circuit courts respectively, in case such issue is not
tried by a jury, to permit the evidence on such trial to
be recorded and certiﬁed as aforesaid, although the sum
or matter at issue may be less in value than ﬁfty
pounds sterling, provided it shall be made to appear
to such judge that the judgment, decree, order, or
sentence, which may be given, made, or pronounced in
such suit or action, may be of such importance as to
render it proper that an appeal should be permitted;
and if, after giving or pronouncing such judgment,
decree, or order, the said judge shall be of opinion that
such judgment, decree, or order is of such importance
as to make it proper that an appeal should be per-
mitted, it shall be lawful for the said judge to allow
either of the said parties, plaintiff or defendant, to
appeal to the Supreme Court, in like manner, and under
and subject to the like rules and regulations, as in and
by this Act directed in other cases of appeal.
14. And be it further enacted, That it shall be
lawful, for the plaintilf or plaintiffs, defendant or.
1824.] 5 GEO. 4. c. 67.-—VERDICT OF JURY. 635
defendants, against whom any judgment, decree, or
order of the said circuit courts respectively shall be
given, for or in respect of any sum or matter at issue
above or exceeding the value of ﬁfty pounds sterling,
to appeal therefrom to the said Supreme Court, and the
party or parties appealing from such judgment, decree,
or order, shall, within fourteen days from the passing
thereof, give notice to the adverse party or parties of-
such appeal, and within fourteen days from and after
such judgment, decree, or order, enter into sufﬁcient
security, to be approved by the judges of the said '
circuit courts respectively, to satisfy or perform the
said judgment, decree, or order, in case the same shall
be affirmed, or the appeal dismissed, together with such
further costs as shall be awarded thereon; and in all
cases of appeal, where notice shall be given and secu-
rity perfected as aforesaid, execution shall he stayed,
and not otherwise; and the said Supreme Court shall
and may enquire into, hear, and decide all questions,
whether of law or of fact, arising upon any such appeal,
but shall not admit or receive any evidence which was
not tendered to the Circuit Court from which such
appeal may be brought on the hearing or trial of any
such suit or action therein: Provided always, that the
said Supreme Court shall not reverse, alter, or enquire
into any judgment of the said circuit courts, founded
on the verdict of a jury, except only for error of law
apparent upon the record.
15. And be it further enacted, That as often as any
action or suit shall be brought in the Supreme Court,
or in either of the said circuit courts respectively, and
it shall be made to appear to the court before which
such action or suit may be pending, that such action or.
suit may be more conveniently heard and determined
either in the said Supreme Court or in some other of
the said circuit courts, it shall be lawful for such court
to permit and allow such action or suit to be removed
to such other court, and such allowance shall be cer-
Verdict of jury
not to be en-
quired into.
Actions may
be removed
from one court
to another.
636 5 GEO. 4. c. 67.—-SEGURITY. [1824.
Defendants not
appearing on
summons, their
goods to be at-
tached or per-
sonsharrested,
&c.
tiﬁed by the judge, together with the writ or process
and proceedings in such action or suit, to the court into
which such action or suit shall be intended to be
removed; and thereupon it shall be lawful for such
last-mentioned court, and such court is hereby required
to proceed in such action or suit in like manner as if
the same had been originally commenced and prose-
cuted in such last-mentioned court.
16. And be it further enacted, That in all actions at
law or suits in equity, which shall be brought in the
said courts respectively, where the debt or sum de-
manded shall not be sworn to as herein-after mentioned,
the defendant or defendants in such action or suit shall
be made to appear to such action or suit by summons,
to be issued by the chief judge of the said Supreme
Court or by the judges of the said circuit courts
respectively, and served by the proper ofﬁcer on the
said defendant or defendants personally, or left at his,
her, or their usual place of abode; and in all cases
Where such summons shall be disobeyed, or where the
debt, damages, or thing demanded shall exceed ten pounds
sterling money, and shall be sworn to in an affidavit
made by the plaintiff or plaintiffs, or his, her, or their
lawful attorney, then the said defendant or defendants
shall be made to appear by attachment of his, her, or
their goods, debts, or effects, or by arrest of the person
of the said defendant or defendants; and in case of his,
her, or their goods, debts, or effects being attached as
aforesaid, such goods, debts, or effects, or so much
thereof as shall be judged by the said court sufficient
to satisfy the debt or damages, shall be held as security
for such debt or damages, and shall abide the order,
judgment, or decree of the court issuing such attach-
ment, unless the defendant or defendants, or some.
person on his, her, or their behalf, shall appear and
give good and sufficient bail, to be approved by such
court, to satisfy such judgment, decree, or order; and
where the defendant or defendants has or have been
1824.] a GEO. 4. c. 67.—MAKING RULES. 637
arrested, he, she, or they shall not be discharged out of
custody, until he, she, or they shall in like manner have
given good and sufﬁcient bail to be approved by such
court, to satisfy the judgment, decree, or order of the
court in the cause in which such arrest was made ; and
it shall also be lawful for the said courts respectively,
when any such action or suit as aforesaid shall be
depending therein, to cause to appear from day to day
all parties interested therein, and to examine upon oath
any of such parties in case such examination shall
appear to the said court necessary for the discovery of
the truth, but not otherwise; and thereupon, and after
due consideration of all circumstances of the case, to
make such order, judgment, or decree therein, and
award such damages and costs, as shall be just and
equitable; and such order, judgment, or decree shall
be enforced by attachment and sale of the goods, debts,
and effects, or by arrest of the person or persons against
whom such order, judgment, or decree shall be made,
and imprisonment of such person or persons until such
order, judgment, or decree shall be performed and
satisﬁed.
1'7. And be it further enacted, That it shall be law-
ful for His Majesty, his heirs and successors, by such
charter or letters patent as aforesaid, or by any order
or orders to be hereafter issued by and with the advice
of his or their Privy Council, to make and prescribe, or
to authorize and empower the said Supreme Court of
Newfoandland, under such limitations as His Majesty
shall deem proper, to make and prescribe such rules
and orders touching and concerning the forms and
manner of proceeding in the said Supreme Court and
circuit courts respectively, and the practice and plead-
ings upon all indictments, informations, actions, suits,
and other matters to be therein brought; or touching
or concerning the appointing of commissioners to take
bail, and examine witnesses; the taking examinations
of witnesses de bene esse, and allowing the same as
Powers given
for making
rules and orders
for the proceed-
ings in the Su~
preme Court
and circuit
courts, &c.
638' 5 GEO. 4. c. 67.—COAST.-OF LABRADOR. [1824.
jurisdiction on
51 Geo. 3. c. 45.
hear and deter-
evidence; the granting of probates of wills and letters
of administration; the proceedings of the sheriff and
his deputies, and other ministerial ofﬁcers; the sum-
moning of assessors for the trial of crimes and mis-
demeanors in the said circuit courts; the process of
the said court, and the mode of executing the same;
the impannelling of juries ; the admission of barristers,
attorneys, and solicitors; the fees, poundage, or per-
quisites to be lawfully demanded by any officer,
attorney, or solicitor in the said courts respectively;
and all other matters and things whatsoever touching
the practice of the said courts, as to His Majesty, his
heirs and successors, shall seem meet for the proper
conduct of business in the said courts; and such rules-
and orders from time to time to alter, amend, or revoke,
as to His Majesty, his heirs and successors, shall seem
requisite.
18, And whereas it is expedient to make further
provision for the administration of justice on the coast
of Labrador; be it further enacted, That so much of
an Act passed in the ﬁfty-ﬁrst year of the reign of His
said Majesty George the Third, intituled “ An ‘Act for
taking away the Public Use of certain Ships Rooms, in
the Town of Saint John’s in the Island of Newfound-
land, and for establishing Surrogate Courts on the
coast of Labrador, and in certain islands adjacent
thereto,” as relates to the institution of surrogate courts,
shall be, and the same is hereby repealed; and that it
shall and may be lawful for the Governor or acting
Governor of Newfoundland for the time being, to
institute a court of civil jurisdiction at any such
parts or places on the coast of Labrador, or the islands ~
adjacent thereto, which, in and by the said Act passed
in the ﬁfty-ﬁrst year of the reign of His Majesty "
George the Third, are re-annexed to the Government
of Newfoundland, as occasion shall require; and such ..
court shall be held by one judge, and shall be a court
of record, and shall have jurisdiction, power, and
1824.] 5 GEO. 4. c. 67.—APPEALS TO s. e.
639
authority to hear and determine all suits and complaints
of a civil nature arising within any of the said parts
and places on the coast of Labrador, or the islands
adjacent thereto; and the said court shall be holden
by a judge, who shall be appointed from time to time
by the Governor or acting Governor of Newfoundland,
and shall have a clerk and such other ministerial
officers as the Governor or acting Governor shall
appoint; and the proceedings of the said court shall
be summary, and such forms of process, and such rules
of practice and proceeding as shall be settled by the
chief judge of the said Supreme Court, shall be fol-
lowed by the said court, and no other.
19. And be it further enacted, That it shall and may
be lawful for the plaintiﬁ or plaintiffs, defendant or-
defendants, against whom any judgment, decree, or
order of the said court shall be given, for or in respect of
any sum or matter at issue above ﬁfty pounds sterling,
or where the matter in dispute shall relate to the title
to any lands, tenements, right of ﬁshery, annual rent,
or other matter, where, in the judgment of the said
court, rights in future may be bound, to appeal there-
from to the said Supreme Court; and the party or,
parties appealing from such judgment, decree, or order,
shall, within seven days from the passing thereof, givev
notice to the adverse party or parties of such appeal,
and within fourteen days from and after such judg-.
ment, decree, or order, enter into sulﬁcient security,
to be approved by the judge of-the said court, or some
person to be appointed by him for that purpose in his
absence, to satisfy or perform the said judgment, decree,
or order, in case the same shall be affirmed, or the
appeal dismissed, together with such further costs as
shall be awarded thereon; and in all cases of appeal,
Appeal to Su-
preme Court in
certain cases.
where notice shall be given and security perfected as -
aforesaid, execution shall be stayed, and not other-
wise.
6410 5 GEO. 4. c. 67 .—APPEALS TO P.‘ C.‘ [1824.
glfgfjjljr‘ggurt 2 O. And be it further enacted, That it shall and
Illlgyjesty may be lawful for His Majesty, by his said charter or
letters patent, to allow any person or persons, feeling
aggrieved by any judgment, decree, order or sentence
of the said Supreme Court, to appeal therefrom to His
Majesty in Council, in such manner, within such time,
and under and subject to such rules, regulations, and
limitations, as His Majesty, by such charter or letters
patent respectively, shall appoint and direct.
G°Y°m°1" 01.1 21. And be it further enacted, That‘ the Governor or
arrlval of H18 , . .
Majesty’s actmg Governor of .Newfoundland, upon the arrival 111
ch te , t . . .
noiirfyrbyopm the said colony of H18 Majesty’s charter or letters
21132111 patent for the establishment of the said courts by
1:635:33?!’ Sand virtue of this Act, shall by proclamation notify to the
much of inhabitants of the said colony, the time when the said
is}? courts respectively shall be intended to be opened; and
as soon as the judges of the said Supreme Court shall
be rePealedrnd have assumed and entered upon the exercise of their
proceedings and
jurisdiction therein, then and from thenceforth so much
over to the of the Act passed in the forty-ninth year of the reign
of His late Majesty George the Third, intituled “An Act
this Act- for establishing of Courts of Judicature in the Island
of Newfoundland, and in the Island adjacent; and for
re-annexing Part of the Coast of Labrador, and the
Islands lying on the said Coast, to the Government of
Newfoundland,” as relates to the courts thereby insti-
tuted, and respectively called the Supreme Court of
Judicature of the island of Newfoundland, and surro-
gate courts, shall cease to be in force and determine;
and every suit, action, complaint, matter, or thing,
which shall be depending in such last-mentioned courts
respectively, shall and may he proceeded upon in the
Supreme Court instituted under and by virtue of this
Act, or either of the said circuit courts which shall
have jurisdiction within the district or place in New-
foundland where such action or suit respectively was '
depending; and all proceedings which shall thereafter,
1824.] 5 are. 4. c. 6'7.—NEWFOUNDLD. INSOLVENTS. 641
be had in such action or suit respectively, shall be
conducted in like manner as if such action or suit had
been originally commenced in one or other of the said
courts instituted under this Act; and all the records,
muniments, and proceedings whatsoever, of and be-
longing to the said courts instituted under the said
recited Act respectively, shall, from and immediately
after the opening of the said courts respectively insti-
tuted under this Act, be delivered over and deposited
for safe custody in such of the said courts respectively
instituted under this Act as shall be found most con-
venient, and all parties concerned shall and may have
recourse to the said records and proceedings, as to any
other records and proceedings of the said courts respec-
tively.
22. And be it further enacted, That courts of
general and quarter sessions shall be holden at New-
foundland and its dependencies at such times and places
as the Governor or Acting Governor of Newfoundland
shall by his proclamation appoint; and the said courts
of session respectively shall have power and authority,
in a summary way, to take cognizance of all suits for
the payment of debts not exceeding forty shillings,
except the matter in dispute shall relate to the title to
any lands or tenements, or to the taking or demanding
of any fee of ofﬁce or annual rent, and to award costs
therein; and also to hear and determine all disputes, to
any amount, which may arise in Newfoundland con-
cerning the wages of seamen or ﬁshermen, the supply
of bait, the hiring of boats for the ﬁshery, and all dis-
putes arising in Newfoundland aforesaid concerning the
curing or drying of ﬁsh, where the sum or matter in
question does not exceed or is not of the value of more
than ﬁve pounds sterling; and the judgment, deter-
mination, or award of the said courts of sessions or
justices respectively, in all such cases, shall be ﬁnal.
Courts of gene-
ral and quarter
sessions shall
be held at such
times and
places as the
Governor shall
appoint.
Their powers.
23, And whereas it is expedient to make provision Proceedings in
cases of in -
for declaring insolvencies in Newfoundland ,- be it fur- solvency.
S 2340. S S
642 5GEO. 4. c. 6’7.—NEWFOUNDLD. 1NsoLvENTs. [1824.
ther enacted, That as often as any writ of attachment,
or other process for the recovery of any debt or sum
due, shall be issued by the said Supreme or Circuit
Courts respectively, against any person or persons re-
siding or having a house of trade, or carrying on
business in Newfoundland, or any place within the
government thereof, and it shall be made to appear to
the said court out of which such writ or process shall
have issued, at the return thereof, that the person or
persons against whom such writ or process hath issued
is or are unable to pay twenty shillings in the pound to
all his, her, or their creditors, it shall be lawful for such
court to cause the person or persons against whom such
process shall have issued, together with all his, her, or
their creditors, to be summoned by public notice to
attend the said court on a certain day, and in the
meantime, if it shall appear necessary to the said court,
to appoint one or more of the said creditors as provi-
sional trustee or trustees, to discover, collect, and
receive the estates and eﬁects of such person or persons
so appearing to be insolvent, subject to the orders and
directions of the said court; and if after due examina-
tion of the person or persons against whom process
shall have issued as aforesaid, or his, her, or their
lawful agent or agents, br if such person or persons
shall abscond, or fail to attend the said court pursuant
to summons as aforesaid, it shall be made to appear to
the satisfaction of the said court, that such person ‘or
persons is or are insolvent, it shall be lawful for the said
court to declare such person or persons insolvent accord-
ingly, and immediately to take order for discovering,
collecting, and selling the estates, debts, and effects of
such insolvent, and distributing the produce thereof
amongst all his, her, or their creditors, and for that
purpose to authorize any two or more creditors of the
said insolvent or insolvents, who shall be chosen by the
major part in value of such creditors, as their agents
duly authorized in such behalf, whose debts amount
respectively to the sum of twenty pounds and upwards,
1824.] 5 GEO. 4. c. 67.—COMPOUNDING.
643
to act as trustees of such insolvent estate; and such
court shall from time to time make such orders as it
shall deem proper, for better discovering, collecting,
realising, and distributing the estates, debts, and eﬁects
of the person or persons so declared insolvent, and, as
often as occasion shall require, for vesting the same, or
any part thereof, in the public funds or securities in
England, in the name or names of such ‘person or
persons as shall for that purpose be appointed by the
said court, until distribution can be made, as hereafter
mentioned.
24-. And be it further enacted, That if such insolvent
person or persons shall make a full and true disclosure,
discovery, and surrender of all his, her, or their estates,
goods, debts, and effects, and shall conform to the
orders and directions of the said judges of the said courts
respectively, the same shall and may, with the consent
in writing under the hands of one half in number and
value of the creditors of such insolvent or insolvents, be
certiﬁed by the respective judges, under the seal of the
said courts respectively; and such certiﬁcate may he
pleaded, and shall be a bar to every suit or action which
may at any time thereafter be brought in any court in
the said island or colony of Newfoundland or its de-
pendencies, for any debt or contract for payment of
money due or entered into by such person or persons
prior to the time of his, her, or their being declared
insolvent as aforesaid; and if any person or persons so
declared insolvent as aforesaid shall fail to make a true
disclosure and discovery of all his, her, or their estate or
estates, and effects, or shall otherwise refuse to conform
to the orders or directions of the said judges respectively,
it shall be lawful for the said judges respectively to
cause such person or persons to be arrested and impri-
soned until he, she, or they shall make such disclosure
and discovery, and in all respects conform to the orders
of the said judges respectively.
Insolvents, on
making dis-
closure of their
effects and con
forming to the
directions of
the judges, may
receive certiﬁ-
cates, with con—
sent of one half
in number and
value of the
creditors.
s s 2
644 5 SE0. 4. c. 6'7.—CREDITORS AND FISHERIES. [1824.
Creditors for
supplies for the
ﬁshery for the
current season
shall be privi-
leged, and be
ﬁrst paid 205.
in the pound.
N 0t to affect
the prior claims
of seamen or
domestic ser-
vants.
Proceedings in
cases where
persons die
insolvent.
25, And be it further enacted, That in the distribu-
tion to be made of the produce of the estates and eﬁects
of every person or persons hereafter declared insolvent
in Newfoundland or its dependencies as aforesaid, every
creditor for supplies necessary, and furnished bond ﬁde
for the ﬁshery, during the current season, (that is to
say), at any time after the close of the last preceding
season of the ﬁshery, shall be considered as a privileged
creditor, and shall ﬁrst be paid twenty shillings in the
pound, so far as the estates and effects of such insolvent
person or persons, which may be realised in Newfound-
land or its dependencies will go, and that all other cre-
ditors shall be paid equally and rateably: Provided
always, that nothing in this Act contained shall affect
the prior claims of seamen and other servants, actually
employed in the catching and taking of ﬁsh and oil,
upon all ﬁsh and oil caught by the hirers or employers
of such seamen, ﬁshermen, or servants, or the produce
or value therof; and also provided that menial or do-
mestic servants shall in all cases be paid the balance of
their last preceding year’s wages, out of the household
furniture, goods, and effects of every person so declared
insolvent.
26, And whereas it is expedient that the estates and
eﬁects of deceased persons which may not be suﬁicient
to pay all their just debts should be distributed accord-
ing to the manner herein directed concerning the estates
and eﬁects of persons declared insolvent; be it further
enacted, That as often as any person shall die in New-
foundland, or in any place. or seas, or territory within
the government thereof, and the estates and effects of
such person shall not be sufficient to pay and satisfy all
his or her just debts, it shall be lawful for the said
courts respectively, at the petition of the executor or
executors, administrator or administrators of such de-
ceased person, or any one or more of his or her creditors,
to cause a true statement of the eﬂects and debts of
such deceased person to be made in writing by and upon
1824.] 5 GEO. 4. c. 67.—INSOLVENTS. 645
the oath of the said executor or executors, administra-
tor or administrators, and laid before the said courts
respectively ; and if it shall appear to the court before
which such statement shall be laid, that the estate and
effects of such deceased person are not sufﬁcient to pay
all his or her just debts, it shall be lawful for such court
to authorize and empower the executor or executors,
administrator or administrators of such deceased person
to collect, sell, and dispose of all the estates and effects
of such deceased person, and to distribute the produce
thereof amongst his or her creditors, according to the
manner of distribution by this Act directed in respect
of the estates of persons declared insolvent, and always
subject to the orders and directions of such court : Pro-
vided always, that nothing herein contained shall be
construed to affect the right of any creditor having a
judgment or special security for his or her debts.
27, And whereas it is expedient that provision. should dRrgdistmm of
. . . . . 86 S ap-
be made for the registration, within the said colony of pointed.
Newfoundland, of all deeds, wills, and other assurances,
whereby any lands or tenements therein situate may be
granted, conveyed, devised, mortgaged, charged, or
otherwise affected; be it further enacted, That the chief
clerk of the Supreme Court of Newfoundland shall be
also the registrar of deeds within the district or circuit
in which the town of St. John’s may be situate, and
that the chief clerks of each of the circuit courts to be
holden in and for the two other districts of the said
colony, shall respectively be the registrars of deeds
within such other districts or circuits; and in each of
the said three districts an oﬁice shall be kept by such
chief clerk respectively, for the due registration of all
such deeds, wills, and other instruments as aforesaid.
Deeds shall be
registered at
28. And be it further enacted, That all deeds, wills, the °fﬁ°° of
registration
conveyances, and other assurances in writing, of what Within the dis-
_ . trict in which
nature or kind soever, whereby any lands or tenements the lands are
situate within
situate in the said colony, or the dependencies thereof, a certain ,im,
646 5 (inc. 4. c. 67.--VERIFIGATION or DEEDS. [1824.
How deeds
shall be veri-
ﬁed before the
registrar.
Registrar to
indorse on the
deed a cer-
tiﬁcate of
registry.
may be hereafter granted, conveyed, devised, mortgaged,
charged, or otherwise affected or intended so to be, shall
be registered at the ofﬁce of registration within the
district or circuit in which such lands may be situate ;
and that all such deeds, conveyances, and other assur-
ances as aforesaid, shall be left for registration at such
ofﬁce within six months next after the execution thereof,
by the party or parties from whom any interest may
pass, in case such party or parties may, at the time of
such execution thereof by him, her, or them, be resident
within the said colony or its dependencies, or within
twelve months in case such party or parties may at that
time be resident elsewhere ; and all such wills as afore-
said shall be left for registration at such office twelve
months next after the death of the testator or testatrix.
29. And be it further enacted, That some or one of
the parties executing any such deed, conveyance, or other
assurance as aforesaid, shall appear before the registrar
of deeds, and acknowledge the execution thereof by
them, him, or her, or in case none of the parties to any
such deed, conveyance, or assurance shall be resident in
the said colony, then the same shall be acknowledged
before the said registrar of deeds, by some p arson duly
appointed for that purpose as the attorney of such par-
ties ; and in that case the execution of every such deed,
conveyance, or other assurance shall be further veriﬁed
by an aﬁidavit to be sworn before the mayor or other
principal magistrate of any city, town, or place in or
near to which such parties respectively may be resident;
and such affidavit shall also be preserved and registered
at the ofﬁce of the said registrar of deeds.
30, And be it further enacted, That the registrar of
deeds shall and he is hereby required to indorse and
subscribe, on every such deed, conveyance, or other as-
surance, a certiﬁcate, in which shall be expressed the
day or time when the same was so acknowledged before
him, and the names of the person or persons by whom
1824.] 5 GEO. 4. c. (ST—REGISTRATION or DEEDS. 647
such acknowledgment was made, and the time when the
same was actually registered, and the volume and page in
which the registry thereof is entered; and every such
certiﬁcate so indorsed or subscribed shall be taken and
allowed as evidence of the due registration of any such
deed, conveyance, or assurance.
31. And be it further enacted, That the registrar
of deeds shall and he is hereby required to enter in a
book of registry, to be by him regularly kept for that
purpose, a memorial of every deed, conveyance, or as-
surance which shall be so acknowledged before him;
and every such memorial shall contain a statement of
the year and day of the month on which such deed, con-
veyance, or assurance shall bear date, the names and ad-
ditions of all and every the parties, as well as the names
and additions, if any, of the several subscribing witnesses
thereto, the descriptions at length of the lands or tene-
ments conveyed or intended to be conveyed, charged, or
aﬁected by such deed, conveyance, or assurance, as the
same are therein described, and the consideration of
every such deed, conveyance, or assurance, as the same
may be therein stated; all which memorials shall be
entered and recorded in the said book of registry with
all convenient dispatch, in the order of time in which
the same may have been acknowledged before the said
registrar.
32, And be it further enacted, That every deed, con-
veyance, or assurance hereafter to be made, whereby
any lands or tenements situate in Newfoundland, or the
dependencies thereof, shall be granted, conveyed, re-
leased, charged, or incumbered, or intended so to be,
which shall not be registered within the time and in the
manner herein-before mentioned, shall be absolutely
null and void to all intents and purposes: Provided
always, that every such deed, conveyance, or assurance
shall be deemed and taken to be a registered deed, con-
veyance, or assurance within the meaning of this Act,
Registrar to
enter in the
book of regis-
try a memorial
of the deed
acknowledged
before him.
Deeds hereafter
to be made,
conveying
lands, &c.
not duly
registered,
declared void.
6418 5 GEO. 4. c. 67.—CHARTERS FOR TOWNS. [1824
from the time when the execution thereof shall be
acknowledged in manner aforesaid, before such registrar
of deeds as aforesaid.
Supreme Court 33, And be it further enacted, That the judges of
authorized to
make rules the Supreme Court of Newfoundland shall be and they
and orders for ,
the registry of are hereby authorlzed to make any general rules and
deeds’ 86°‘ orders of court for maintaining order and regularity
in the mode of taking such acknowledgments, and
registering such deeds, wills, conveyances, and other
assurances as aforesaid, and for executing the duties of
said ofﬁce of registrar of deeds; provided that such
rules and orders be not in anywise repugnant to the
provisions of this present Act in that behalf.
Governor may , - ’- . _
establish ordi_ 34. And whe1eas the justices of the peace In New
nancesfor the foundland have been used to grant licenses for the
granting of . . . . . .
licenses for reta1l of ale and sp1r1tuous hquors, and 1t 18 proper to
regulate the sums to be demanded upon such licenses,
"Stgl‘llls‘fj‘ijhe and to make provision for the appropriation thereof, and
Paid am} the for preventing abuses in the granting of such licenses,
appropmtm' and in the sale of spirits by unlicensed persons in the
said colony; be it therefore enacted, That it shall and
may be lawful for the Governor or Acting Governor of
Newfoundland to make, establish, and ordain such rules
and ordinances as to him may seem meet, respecting the
granting of such licenses, and the recalling the same,
and the amount of the sums to he demanded and taken
for every such license, and the appropriation of such
sums to His Majesty’s service in the said colony, and
for preventing the retail of ale and spirituous liquors by
persons not duly licensed, and to impose such pecuniary
ﬁnes or other penalties as may be necessary for en-
forcing obedience to any such rules or ordinances as
aforesaid.
His Majesty '35, And be it further enacted, That it shall and
may grant
Charters for may be lawful for His Majesty, by charter or letters
estabhshmg
corporations patent under the great seal, to constitute and erect such
for the govern ' , , 1
mentoftowns, persons as to HIS Majesty shall seem meet a body or
1824.] 5 GEO. 4. c. 67.-—REGULATION or POLICE. 649
bodies corporate and politic, for the government of any
town or towns situate within the said colony of New-
foundland or its dependencies, and to grant to such
body or bodies politic and corporate, power to make
bye-laws for regulating the police of any such town or
towns, and for the prevention or abatement of nuisances
therein, and for the prevention of accidents by ﬁre;
and also to grant to any such body or bodies politic and
corporate as aforesaid, the power to impose and levy
such reasonable and moderate rates and assessments
upon the inhabitants‘ and householders in such town or
towns, as may be necessary for carrying into effect the
several purposes aforesaid, or any of them; and it shall
also be lawful for His Majesty, his heirs and successors,
by any order or orders to be made by or with the advice
of his or their Privy Council, to dissolve any such cor-
poration or corporations as aforesaid, upon and subject
to such conditions and regulations as may be made in
and by any such order or orders in that behalf.
36. And be it further enacted, That this Act shall gyilxtjpuanco
continue and be in force for ﬁve years from the passing
thereof, and no longer.
5 GEO. 4. c. 68.
Was an Act passed to repeal the 57 Geo. 3. c. 51.,
regulating the celebration of marriages in N ewfound-
land, and making further provision for the celebration
of marriages therein. This Act was continued by
2 8L 3 Will. 4.]. (1832) c. 78, until repealed, &c. by
the Government of Newfoundland [see post, p. 654, and
C. S. Newfoundland (1872) c. 105]. Now S. L. R.
(1873), 36 8037 Vict. c. 91. repeals 5 Geo. 4. c. 68. sec. 1
to word “ repealed,” and sec. 2 to end of the Act.
6 GEO. 4. (1825) c. 59.
Sec. 9. From “and so much ” to the end of that sec-
tion repealed by S. L. R. (1874), 37 & 38 Vict. c. 35.
6.50 e eEo. 4. c. 59.—FEUDALITY & EXTINcTIoN. [1825;
[See ante, 49 Geo. 3. c. 27 The whole Act repealed,’
except sec. 9, by S. L. It. (1888, No. 2), 51 85 52 Vict.
c. 57. i
_ This was “An Act to provide for the extinction of
feudal and seignioral rights and burdens on land held
a titre de ﬁef and a titre de cens, in the province of
Lower Canada, and for the gradual conversion of
those tenures into the tenure of free and common
socage,” &c. '
The Act, after reciting 3 Geo. 4. c. 119., an Act for
regulating the trade of Lower and Upper Canada, and
containing certain provisions for the change of the
tenure of lands held in ﬁef and seigniory and also
of lands held at cens et rentes in the censive of His
Majesty, continued: And whereas the said provisions,
in so far as they relate to the change of tenure of lands
in ﬁef and seigniory, cannot, in the province of Lower
Canada, receive execution where such lands, 850., have
under grants of the seigniors, become the property of
persons who hold the same a titre de ﬁef, in arriere ﬁef,
or a titre de cens; and further provision is necessary.
' The Act then enacted, that whenever any person or per-
sons holding of His Majesty, as proprietor or proprietors,
any ﬁef or seigniory in the said province of Lower
Canada, and having legally the power of alienating the
same, in which ﬁef or seigniory lands have been granted
and are held a titre de ﬁef, in arriere ﬁef, or a titre de
cens, shall, by petition to the King, through the Gover-
nor, Lieutenant-Governor, or person administering the
government of the said province, apply for a commuta-
tion of, and release from, the droit de quint, the droit
de relief, or other feudal burdens due to His Majesty on
such ﬁef‘ or seigniory, and shall surrender into the hands
of His Majesty, his heirs or successors, all such parts
and parcels of such ﬁef or seigniory as shall remain and
be in his possession ungranted, and shall not be held as
aforesaid a titre de ﬁef, in arriere ﬁef, or a titre de cens,
it shall and may be lawful for His Majesty, or for such _
1825.] e GEO. 4. c. 59.--FEUDALITY & EXTINCTION. 651
Governor, &c., in pursuance of His Majesty’s instruc-
tions transmitted through one of his principal Secre-
taries of State, by and with the advice of the executive
council of the said province, to commute the droit de
quint, the droit de relief, and all other feudal rights and
burdens due to His Majesty upon or in respect of such
ﬁef or seigniory, for such sum of money or consideration,
and upon such terms and conditions, as to His Majesty,
or to such Governor, 850. shall appear expedient; and
thereupon to release the person, 85c. so applying, his, &c.,
heirs and assigns, and all and every the lands comprised
in such ﬁef or seigniory from the said droit de quint,
droit de relief, and all other feudal burdens due or to
grow due thereupon to His Majesty, &c., and cause a
fresh grant to be made to the person, &c. so applying of
all such parts and parcels of such ﬁef or seigniory as
shall as aforesaid remain and be in his, 800. possession
ungranted, and which shall not be held a titre de ﬁef, in
arriere ﬁef, as aforesaid, or a titre de cens, to be hence-
forth holden in free and common socage (see sec. 443
of 31 Geo. 3. c. 31.) in like manner as lands are now
holden in free and common socage in England, without
it being necessary for the validity of such grant that
any allotment or appropriation of lands for the‘ sup-
port, 850. of a Protestant clergy should be therein made.
Sec. 2 provided that where such fresh grant was made
nothing was to take away the feudal, seigniory rights,
and other rights, of the seignior or person in whose
favour such grants shall be made upon or in respect of
all lands held of him a titre de cens, 850., until a com-
mutation release or extinguishment thereof shall have
been obtained in the manner herein-after mentioned.
By sec. 3, persons holding lands in ﬁef and obtaining a
commutation were bound to grant like commutation to
those holding under them, for such price or indemnity
as should be ﬁxed by experts. By sec. 41 this latter
right might be enforced in a court of law.
By sec. 5, commutation having been voluntarily agreed
upon or awarded by a court of law, all. feudal rights.
652 6 GEO. 4. c. 59.-COMMON SOCAGE. [1825.
and burdens to cease upon lands for which the same
shall have been agreed upon or granted, and the tenure
of the lands thenceforth be converted into free and
common socage. By sec. 6, nothing in the Act was to
be a discharge of arrears, or deprive the seignior to
whom such arrears, lods et ventes, or Rights, shall be
due, of his right to recover the same.
By sec. 7, persons applying for commutation or extin-
guishment of feudal rights in respect of lands held of
the Crown, or as an arriere ﬁef, public advertisement for
three months in the Quebec Gazette and two other news-
papers published in Montreal and Quebec respectively,
giving notice to mortgagees and other incumbrancers,
whose consent, if any, must be shown. By sec. 8 it was
enacted that all lands previously granted by His Majesty,
&c., or which might hereafter be so granted by the same,
in free and common socage, may and shall be by such
grantees, their heirs and assigns, held, sold, and con-
veyed, &c., and may pass by descent, under such rules
and restrictions as are by the law of England established
and in force with reference to the grant, sale, conveyance,
and descent of lands held by the like tenure therein
situate, or to the dower or other rights of married
women in such lands, and not otherwise. Provided no-
thing was to prevent His Majesty, with the advice, &c. of
the Legislative Council and Assembly of the province of
Lower Canada, from enacting any laws for the better
adapting the rules of the law of England to the local
circumstances and condition of the said province. [For
sec. 9see ante, p. 596, 49 Geo. 3. c. 27.]
By sec. 10, courts of escheat might be established in
Lower Canada to try forfeitures of uncultivated lands,
and new grants of escheated lands made. By sec. 11,
notice of inquiry as to escheat was to be advertised.
Parties interested to appear, and judgment of the court
was to be ﬁnal. By sec. 12, parts of the clergy reserves
necessary for Securing and quieting the title of any
person to lands claimed by occupancy, lawful prescrip-
tion, or by doubtful titles, or convenient for the carry-g
1827.] 7 a 8 GEO. 4. c. 62.-CIVIL eov. CHARGES. 653
ing on of any public building or works, or for more
effectual settlement of any district, it was lawful
for the Bishop of Quebec, on behalf of the Protestant
clergy, and on requisition of the Governor, &c., by deed,
to convey the lands comprised in such requisition in
exchange for other lands situated in the province.
_ 6 GEO. 41. (1825) c. 75.
This Act established the Canada Company for, among
other things, clearing and cultivating the “ Crown
reserves ” and parts of the “ clergy reserves.”
This Act was amended by 9 Geo. 4. (1828) c. 51., and
by 19 & 20 Vict. (1856) c. 23. granted additional powers
to the Company, with the power of winding up by
special resolutions.
7 a 8 GEO. 4. (1827) c. 62.
See 3 8t 41 Vict. c. 78. and 16 8t 17 Vict. c. 21., post,
repealed by S. L. R. Act, 1874:, 37 8D 38 Vict. c. 35.
This Act recited 31 Geo. 3. c. 31. [see sec. 36 of that
Act, ante], and then goes on to give the Governor, &c. of
the said provinces, or either of them, with the consent
of the Executive Council, power to sell and convey in
fee simple, or for any less estate, a part of the said clergy
reserves in each of the provinces, not exceeding in
either province one-fourth, the quantity to be sold in
one year not to exceed 100,000 acres, and the money
received for this land was to be handed over to His
Majesty’s revenue, to be invested in the public funds
of the United Kingdom and Ireland. Provided also
that the dividends arising from such funds so purchased
should be applied for the improvement of the remain-
ing part of the clergy reserves, or otherwise, for the
purposes for which the said lands were so reserved as
aforesaid, and for no other purpose whatsoever except
the expenses of sale.
By clause 2, the Governor may grant or accept lands
in exchange for clergy reserve lands. [See above,
6 Geo. 41. c. 59. s. 12.]
6541 1 VICT. c. 9.-—-SUSPENSION OF GOV. [1837.
1 8t 2 Will. 4. (1831) c. 23. (Civil Government
Charges). This Act was repealedby 3 & 4 Vict. c. 35.
It was an Act amending 14 Geo. 3. c. 88., and giving
power to the provinces of Upper and Lower Canada by
any Acts passed for that purpose to appropriate, in such
manner and to such purposes as to them respectively
appeared meet, the moneys produced from the duties
raised under 14 Geo. 3. c. 88. s. 1., except so far as the
charges of raising and collecting the same.
2 a 3 WILL. 4. (1832) c. 78.
Sec. 2 was repealed by S. L. R. Act (1874), 37 & 38
Vict. c. 35.
The Act continued in force 5 Geo. 4. c. 67., and
5 Geo. 4. c. 68., until the same shall be repealed, altered,
or amended, by any Act or Acts which may for that
purpose be made by His Majesty, with the advice and
consent of any house or houses of General Assembly
of Newfoundland. [See now C. S. Newfoundland (1872)
c. 105.]
By sec. 2, all duties levied within the colony were to
be appropriated in such manner as His Majesty, with
the advice and consent of the House of General As-
sembly, should direct. But of these duties an annual
sum not exceeding £6,550 was to be set apart for the
maintenance of the Governor, the Judges, Attorney-
General, and Colonial Secretary.
1 VICT. (1837) c. 9.
Repealed by 3 &. 4 Vict. c. 35. s. 2.
An Act to make temporary Provision for the
Government of Lower Canada. [10 Feb. 1838.
WHEREAS in the present state of the province of
Lower Canada the House of Assembly of the
said province, constituted under the Act passed in the
thirty-ﬁrst year of His Majesty King George the Third,
1837.] 1 vrcr. c. 9.-sPE01AL COUNCIL. 655
intituled, an Act to repeal certain parts of an Act passed
in the fourteenth year of His Majesty’s reign, intituled,
“ An Act for making more eﬁectual provision for the
Government of the Province of Quebec in Northaflmertca,”v
and to make further provision for the government of the
said province, cannot be called together without serious
detriment to the interests of the said province, by reason
whereof the government of the said province cannot be
duly administered according to the provisions of the
said Act: And whereas it is expedient to make tem-
porary provision for the government of Lower Canada,
in order that Parliament may be enabled, after mature
deliberation, to make permanent arrangements for the
constitution and government of the said province, upon
such a basis as may best secure the rights and liberties
and promote the interests of all classes of Her Majesty’s
subjects in the said province: Be it therefore enacted
by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assem-
bled, and by the authority of the same, That from the
proclamation of this Act in the said province as herein-
after provided, until the ﬁrst day of November in the
year one thousand eight hundred and forty, so much of
the said Act of the thirty-ﬁrst year of King George the
Third, and of any other Act or Acts of Parliament, as
constitutes or provides for the constitution or calling of
a Legislative Council or Legislative Assembly for the
province of Lower Canada, or as confers any powers or
functions upon the said Legislative Council and Legis-
lative Assembly, or either of those bodies, shall cease
and be of no force.
2, And be it enacted, That it shall be lawful for Her
Majesty, by any commission or commissions to be from
time to time issued under the great seal of the United
Kingdom, or by any instructions under Her Maj esty’s
signet and sign manual, and with the advice of her
Privy Council, to constitute a special council for the
31 Geo. 3.
c. 31.
The powers of
the present
Legislature of
Lower Canada
suspended.
Her Majesty
may appoint a
special council‘
for the affairs
of Lower ‘
Canada.
656 1 VICT. c. 9.—-SANCTION OF LAWS. [1837.
Members of
the council to
take an oath.
The Governor
and Council
may make
laws or ordi-
nances for the
government of
Lower Canada.
Such laws to
be proposed by
the Governor.
affairs of Lower Canada, and for that purpose to appoint
or authorize the Governor of the province of Lower
Canada to appoint such and so many special councillors
as to Her Majesty shall seem meet, and to make such
provision as to Her Majesty Shall seem meet for the
removal, suspension, or resignation of all or any such
councillors: Provided always, that no member of the
said special council shall be permitted to sit or to vote
therein until he shall have taken‘ and subscribed before
the Governor of the province of Lower Canada, or
before some person authorized by the said Governor to
administer such oath, the Same oath which is now re-
quired to be taken by the members of the Legislative
Council and Assembly before sitting or voting therein
respectively.
3, And be it enacted, That from and after such pro-
clamation as aforesaid, and until the said ﬁrst day of
November in the year one thousand eight hundred and
forty, it shall be lawful for the Governor of the province
of Lower Canada, with the advice and consent of the
majority of the said councillors present at a meeting or
meetings to be for that purpose from time to time con-
vened by the Governor of the said province, to make
such laws or ordinances for the peace, welfare, and good
government of the said province of Lower Canada as
the legislature of Lower Canada as now constituted is
empowered to make ; and that all laws or. ordinances so
made, Subject to the provisions herein-after contained
for disallowance thereof by Her Majesty, shall have the
like force and effect as laws passed before the passing of
this Act by the Legislative Council and Assembly of
the said province of Lower Canada, and assented to by
Her Majesty, or in Her Majesty’s name by the Governor
of the said province: Provided always, that no such
law or ordinance shall be made unless the same shall
have been ﬁrst proposed by the said Governor for adop-
tion by the council, nor unless the said Governor and
ﬁve at least of the Said councillors shall be actually
1838.] 1 VICT. 5. 9.-—ALTERING LAWS. 657
present when such law or ordinance shall be made:
Provided also, that no law or ordinance so made shall their
continue in force beyond the ﬁrst day of November in
the year one thousand eight hundred and forty-two,
unless continued by competent authority : Provided gs to
also, that it shall not be lawful by any such law or taxes.
ordinance to impose any tax, duty, rate, or impost
save only in so far as any tax, duty, rate, or impost,
which at the passing of this Act is payable within the
said province may be thereby continued : Provided also, that it shall not be lawful, by any such law or ordinance, affect the
to alter in any respect the law now existing in the said 322,123,311?“
province respecting the constitution or composition of 8,6.
the Legislative Assembly thereof, or respecting the right
of any person to vote at the election of any member of
the said Assembly, or respecting the qualiﬁcations of
such voters, or respecting the division of the said province
into counties, cities, and towns for the purpose of such
elections; nor shall it be lawful by any such law or
ordinance to repeal, suspend, or alter any provision of
any Act of the Parliament of Great Britain, or of the
Parliament of the United Kingdom, or of any Act of the
legislature of Lower Canada as now constituted, repeal-
ing or altering any such Act of Parliament. '
4-, Provided always, and be it enacted, That it shall N01“ 01‘
ordinance to
not be lawful by any such law or ordinance to appro- appropriate,
. . . the moneys in
priate any moneys wh1ch now are or WlllCll shall here- hand for re-
- - 1-. f
after be 1n the hands of the Recelver-General of the 00f
said province of Lower Canada towards the repayment 51424160‘ ‘.m'
_ less 011 cert1ﬁ~
of any sum or sums of money whlch shall have been Gate of 00m-
missioners of '
issued out of the sum of one hundred and forty-two Treasury;
thousand one hundred and sixty pounds, fourteen
_ shillings, and sixpence, granted to Her Majesty by an
Act passed in the last session of Parliament for advances
on account of charges for the administration of justice
and of the civil government of the province of Lower
Canada, unless upon a certiﬁcate from three or more of
the Commissioners of Her Majesty’s Treasury, setting
s 2340. T T
- 658
1 VICT. c. 9.-—DISALLOWING LAWS. [1838.
nor to any
amount ex-
ceeding the
appropriation
of 1832.
Laws or ordi-
nances may be
disallowed by
Her Majesty
in Council.
This Act not
to affect laws,
8612., now in
force, &c.
Proclamation
of this Act.
forth the several sums which shall have been so advanced
for any of the purposes aforesaid: Provided also, that,
exclusive of any such repayment as aforesaid, no appro-
priation to be made by any such law or ordinance of the
moneys aforesaid in respect of the public service for any
one year shall exceed the total amount of the sums
appropriated by law within the said province for the
public service thereof for the year one thousand eight
hundred and thirty-two.
5, And be it enacted, That the Governor of the said
province is hereby required by the ﬁrst convenient
opportunity to transmit to one of Her Majesty’s Prin-
cipal Secretaries of State an authentic copy of every law
or ordinance made under the authority of this Act ; and
that it shall be lawful, at any time within two years
after such law or ordinance shall have been so“ received
by such Secretary of State, for Her Majesty, her heirs or
successors, by her or their order in council, to declare
her or their disallowance of such law or ordinance; and
that such disallowance, together with a certiﬁcate under
the hand and seal of such Secretary of State, testifying
the day on which such law or ordinance was received as
aforesaid, being signiﬁed by such Governor by procla-
mation within the said province, shall make void and
annul the same from and after the date of such signi-
ﬁcation.
6, And be it enacted, That nothing herein contained
shall be taken to affect or invalidate any law, statute, or
ordinance now in force within the said province of
LowerCanada, or in any part thereof, except in so far
as the same is repugnant to this Act.
'7, And be it enacted, That this Act shall be proclaimed
by the Governor of the said province of Lower Canada
within the said province, and shall commence and take
eﬁect within the said province from the proclamation
thereof.
1839.] 2 a 3 VICT. c. 53.--TEMPORABY GOVERNMENT. 659
8. And be it enacted, That for the purposes of this
Act any person authorized to execute the commission of
Governor of the province of Lower Canada shall be
taken to be the Governor thereof.
9. And be it enacted, That this Act may be altered or
repealed by any Act to be passed in the present session
of Parliament.
2 &- 3 VICT. (1839) c. 53.
(Repealed by 3 & 41 Vict. c. 35. s. 2.)
A11 Act to amend an Act of the last Session of
Parliament for making temporary Provision for
the Government of Lower Canada.
[17 Aug. 1839.]
HEREAS an Act was passed in the thirty-ﬁrst
year of the reign of His Majesty King George the
Third, intitulec “An Act to Repeal certain parts of an
Act passed in the fourteenth year of His Maj esty’s reign,
intituled ‘ An Act for making more Elfectual Provision
for the Government of the Province of Quebec in North
America,’ ” and to make further provision for the govern-
ment of the said province, whereby, among other things,
it was enacted, that there should be within each of the
provinces of Upper Canada and Lower Canada respec-
tively a Legislative Council and an Assembly, to be
constituted in manner therein described, and with such
powers and authorities as therein mentioned; And
Whereas an Act was passed in the last session of Parlia-
ment, intituled “An Act to make Temporary Provision
for the Government of Lower Canada,” whereby it was
enacted that from the proclamation of the Act until
the ﬁrst day of November one thousand eight hundred
and forty so much of the said Act of the thirty-ﬁrst year
of the reign of His Majesty King George the Third, and
of any other Act or Acts of Parliament, as provides for
the constitution or calling of a Legislative Council or As-
T '1‘ 2
The term
“ Governor ”
deﬁned.
Act may be
altered, 86c.
31 Geo. 3.
c. 31.
1 & 2 Vict. c. 9.
660 2 a 3 VIo'r. c. 53.—SPEOIAL ooUNoIL. [1839.
The special
council to con-
sist of not less
than twenty
members, and
no business to
be transacted
unless eleven
be present.
Repeal of
provision of
l 82; 2 Vict.
c. 9. preventing
the making of
permanent
laws; but all
permanent laws
to be laid for
thirty days
before Parlia-
ment previous
to being con-
ﬁrmed.
sembly for the province of Lower Canada, or confers any
powers or functions upon them or either of them, should I
cease; and by the said Act now in recital provision is
made in the meantime for the appointment by Her
Majesty of a special council for the affairs of Lower
Canada, and for the making of laws or ordinances for
the government of the said province by the Governor
thereof, with the advice and consent of the majority of
the councillors present at any meeting of the council:
And whereas it is expedient that some of the provi-
sions contained in the said lastly-recited Act should be
altered: Be it therefore enacted by the Queen’s most
Excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in
this present Parliament assembled, and by the authority
of the same, that the number of councillors forming the
special council in manner provided by the said Act
passed in the last session of Parliament shall not be
less than twenty, and that no business shall be trans-
acted at any meeting of the said special council at
which there are not present at least eleven councillors.
2, And be it enacted, That from and immediately
after the passing of this Act so much of the said recited
Act passed in the last session of Parliament as provides
that no law or ordinance made by the Governor of the
said province of Lower Canada, with such advice and
consent as therein mentioned, shall continue in force
beyond the ﬁrst day of November one thousand eight
hundred and forty-two, unless continued by competent
authority, shall be and the same is hereby repealed:
Provided always, that every law or ordinance which
by the terms and provisions thereof shall be made to
continue in force after the said ﬁrst day of November
one thousand eight hundred and forty-two shall be laid
before both houses of Parliament within thirty days
after a copy thereof shall be received by one of Her
Majesty’s principal Secretaries of State, under the pro-
visions of the said Act of the last session of Parliament,
1839.] 2 a 3 VICT. 5. 53.-TAXES a MUNICIPALITY. 661
if Parliament shall be then sitting, or otherwise within
thirty days after the then next meeting of Parliament;
and no such law or ordinance shall be conﬁrmed or de-
clared to be left to its operation by Her Majesty until
such law or ordinance shall ﬁrst have been laid for
thirty days before both houses of Parliament, or in
case either house of Parliament shall, within the said
thirty days, address Her Majesty to disallow any such
law or ordinance.
3. And be it enacted, That from and immediately after
the passing of this Act so much of the said recited Act
passed in the last session of Parliament as provides that
it shall not be lawful, by any such law or ordinance as
therein mentioned, to impose any tax, duty, rate, or im-
post, save only in so far as any tax, duty, rate, or impost
which at the passing of that Act was payable within the
said province of Lower Canada might be continued,
shall be and the same is hereby repealed: Provided
always, that it shall not be lawful for the said Governor,
with such advice and consent as aforesaid, to make any
law or ordinance imposing or authorizing the imposition
of any new tax, duty, rate, or impost, except for carry-
ing into effect local improvements within the said pro-
vince of Lower Canada, or any district or other local
division thereof, or for the establishment or mainten-
ance of police, or other objects of municipal govern-
ment, within any city or town or district or other local
division of the said province: Provided also, that in
every law or ordinance imposing or authorizing the im-
position of any such new tax, duty, rate, or impost,
provision shall be made for the levying, receipt, and
appropriation thereof by such person or persons as shall
be thereby appointed or designated for that purpose,
' but that no such new tax, rate, duty, or impost shall be
levied by or made payable to the Receiver-General or
any other public ofﬁcer employed in the receipt of Her
Maj esty’s ordinary revenue in the said province; nor
shall any such law or ordinance as aforesaid provide for
Repeal of the
provision of
1 8t 2 Vict. c. 9.
prohibiting
taxation ; but
no new tax to
be levied except
for public
works and
objects of
municipal
government
and such taxes
not to be ap-
propriated by
Government.
662 2 a‘ 8 v1cT. c. 35.—REPEALING BRIT. ACTS. [1889.
Repeal of the
provision of
1 & 2 Vict. c. 9.
prohibiting the
alteration of
Acts of Parlia-
ment; but no
law to be made
affecting the
temporal or
spiritual rights
of ecclesiastics,
or the law of
tenure.
Laws, &c. to
be published in
Gazette be-
fore passing.
the appropriation of any such new tax, duty, rate, or
impost by the said Governor, either with or without the
advice of the Executive Council of the said province,
or by the Commissioners of Her Majesty’s Treasury,
or by any other ofﬁcer of the Crown employed in the
receipt of Her Majesty’s ordinary revenue.
4. And be it enacted, That from and after the pass-
ing of this Act so much of the said recited Act passed
in the last session of Parliament as provides that it shall
not be lawful for any such law or ordinance as therein
mentioned to repeal, suspend, or alter any provision of
any Act of the Parliament of Great Britain, or of the
Parliament of the United Kingdom, or of any Act of
the Legislature of Lower Canada, as then constituted,
repealing or altering any such Act of Parliament, shall.
be and the same is hereby repealed: Provided always,
that it shall not be lawful for the said Governor, with
such advice and consent as aforesaid, to make any law
or ordinance altering or aﬁecting the temporal or spi-
ritual rights of the clergy of the United Church of
England and Ireland, or of the ministers of any other
religious communion, or altering or affecting the tenure
of land within the said province of Lower Canada, or
any part thereof, save so far as the tenure of land may
be altered or affected by any law or ordinance which
may be made by the said Governor, with such advice
and consent as aforesaid, to provide for the extinction of
any seignorial rights and dues now vested in or claimed
by the ecclesiastics of the seminary of Saint Sulpice of
Montreal within the said province, or to provide for the
extinction of any seignorial rights and dues vested in
or claimed by any other person or persons, or body or
bodies corporate or politic, within the island of Montreal,
or the island called I le Jesus, within the said province.
5. And be it enacted, That every law or ordinance to
be made by the said Governor, with such advice and
consent as aforesaid, shall, before the passing or enact-
1840.] 3 a 4 vIcT. c. 35.—RIGHTS AND LIBERTIES. 663
ment thereof, be published at length in the public
Gazette of the said province of Lower Canada.
6. And be it enacted, That for the purposes of this
Act the person authorized to execute the commission of
Governor of the province of Lower Canada shall be
taken to be the Governor thereof.
7. And be it enacted, That this Act may be amended
or repealed by any Act to be passed during the present
session of Parliament.
3 a 4 vrer. (1840) c. 35.
Repealed, except sees. 28, 29, 60, by S. L. R. No. 2
(18741), 37 80 38 Vict. c. 96. The preamble and sec. 60
to the words “ enacted that” repealed by S. L. R. No. 2,
Part 2 (1890), 53 85 541 Vict. c. 51. See two previous
Acts, and 17 85 18 Vict. (18541) c. 118.
An Act to re-unite the Provinces of Upper and
' Lower Canada, and for the Government of
Canada. [23 July 1840.]
HEREAS it is necessary that provision be made
for the good government of the provinces of Upper
Canada and Lower Canada, in such manner as may
secure the rights and liberties and promote the interests
of all classes of Her Majesty’s subjects within the
same : And whereas to this end it is expedient that the
said provinces be re-united and form one province for
the purposes of executive government and legislation:
Be it therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority
of the same, That it shall be lawful for Her Majesty,
with the advice of her Privy Council, to declare, or to
authorize the Governor-General of the said two pro-
vinces of Upper and Lower Canada to declare, by pro-
clamation, that the said provinces, upon, from, and after
Deﬁnition of
the word
Governor.
Act may be
amended.
Declaration of
Union.
664 3 a 4 vIcT. c. 35.—WELFARE AND Goon eov. [1840.
Repeal of Acts.
31 Geo. 3.
c. 31.
1 85 ‘2 Vict. C. 9.
2 8t 3 Vict.
c. 53.
1 8t‘ 2 Will. 4.
c. 23.
14 Geo. 3.
c. 88.
a certain day in such proclamation to be appointed,
which day shall be within ﬁfteen calendar months next
after the passing of this Act, shall form and be one pro-
vince, under the name of the province of Canada, and
thenceforth the said provinces shall constitute and be
one province, under the name aforesaid, upon, from,
and after the day so appointed as aforesaid.
2, And be it ‘enacted, That so much of an Act passed
in the session of Parliament held in the thirty-ﬁrst year
of the reign of King George the Third, intituled “An
Act to repeal certain Parts of an Act passed in the
Fourteenth Year of His Majesty’s Reign, intituled ‘An
Act for making more eﬁectual Provision for the Govern-
ment of the Province of Quebec in North America,’ and
to make further Provision for the Government of the
said Province,” as provides for constituting and compos-
ing a Legislative Council and Assembly within each of the
said provinces respectively, and for the making of laws ;
and also the whole of an Act passed in the session of Parlia-
ment held in the ﬁrst and second years of the reign of Her
present Majesty, intituled “ An Act to make temporary
Provision for the Government of Lower Canada; ” and
also the whole of an Act passed in the session of Parlia-
ment held in the second and third years of the reign of
Her present Majesty, intituled “ An Act to amend an Act
of the last session of Parliament, for making temporary
Provision for the Government of Lower Canada ” ; and
also the whole of an Act passed in the session of Parlia-
ment held in the ﬁrst and second years of the reign of
His late Majesty King William the Fourth, intituled
“An Act to amend an Act of the Fourteenth Year of
His Majesty King George the Third, for establishing a
Fund towards defraying the Charges of the Administra-
tion of Justice and the Support of Civil Government in
the Province of Quebec in America,” shall continue and
remain in force until the day on which it shall be de-
clared, by proclamation as aforesaid, that the said two
provinces shall constitute and be one province as afore-
1840.] 3 a 4 VICT. 5. 35.—POWERS or LEGISLATURE. 665
said, and shall be repealed on, from, and after such day":
Provided always, that the repeal of the said several Acts
of Parliament and parts of Acts of Parliament shall not .
be held to revive or give any force or eﬁect to any
enactment which has by the said Acts, or any of them,
been repealed or determined.
3. And be it enacted, That from and after the re-
union of the said two provinces there shall be within the
province of Canada one Legislative Council and one
Assembly, to be severally constituted and composed in
the manner herein-after prescribed, which shall be called
“ The Legislative Council and Assembly of Canada”;
and that, within the province of Canada, Her Majesty
shall have power, by and with the advice and consent
of the said Legislative Council and Assembly, to make
laws for the peace, welfare, and good government of the
province of Canada, such laws not being repugnant to
this Act, or to such parts of the said Act passed in the
thirty-ﬁrst year of the reign of His said late Majesty as
are not hereby repealed, or to any Act of Parliament
made or to be made, and not hereby repealed, which does
or shall, by express enactment or by necessary intend-
ment, extend to the provinces of Upper and Lower
Canada, or to either of them, or to the province of
Canada ; and that all such laws being passed by the
said Legislative Council and Assembly, and assented to
by Her Majesty, or assented to in Her Majesty’s name
by the Governor of the province of Canada, shall be
valid and binding to all intents and purposes within the
province of Canada.
4, And be it enacted, That for the purpose of com-
posing the Legislative Council of the province of Canada
it shall be lawful for Her Majesty, before the time to
be appointed for the ﬁrst meeting of the said Legisla-
tive Council and Assembly, by an instrument under the
sign manual, to authorize the Governor, in Her Ma-
jesty’s name, by an instrument under the great seal of
Composition
and powers of
Legislature.
Appointment ‘
of Legislative.
Councillors.
666 3 a 4 vror. c. 35.—LEGISLATOBS. [1840.
Qualiﬁcation
of Legislative
Councillors.
Tenure of office
of Councillor.
Resignation of
Legislative
Councillor.
Vacating seat ‘
by absence.
the said province, to summon to the said Legislative
Council of the said province such persons, being not
fewer than twenty, as Her Majesty shall think ﬁt;
and that it shall also be lawful for Her Majesty from
time to time to authorize the Governor in like manner
to summon to the said Legislative Council such other
person or persons as Her Majesty shall think ﬁt, and
that every person who shall be so summoned shall
thereby become a member of the Legislative Council
of the province of Canada : Provided always, that no
person shall be summoned to the said Legislative Coun-
cil of the province of Canada who shall not be of the
full age of twenty-one years, and a natural-born
subject of Her Majesty, or a subject of Her Majesty
naturalized by Act of the Parliament of Great Britain,
or by Act of the Parliament of the United Kingdom of
Great Britain and Ireland, or by an Act of the Legis-
lature of either of the provinces of Upper or Lower
Canada, or by an Act of the Legislature of the pro-
vince of Canada.
5. And be it enacted, That every member of the
Legislative Council of the province of Canada shall
hold his seat therein for the term of his life, but subject
nevertheless to the provisions herein-after contained for
vacating the same.
6. And be it enacted, That it shall be lawful for any
member of the Legislative Council of the province of
Canada to resign his seat in the said Legislative
Council, and upon such resignation the seat of such
Legislative Councillor shall become vacant. _
7. And be it enacted, That if any Legislative Coun-
cillor of the province of Canada shall for two successive
sessions of the Legislature of the said province fail to
give his attendance in the said Legislative Council,
without the permission of Her Majesty or of the
Governor of the said province, signiﬁed by the said
Governor to y the Legislative Council, or shall take anyé
1840.] 3 a 4 vrc'r. c. 35.—APPEALS AS TO SEATS. 667
oath or make any declaration or acknowledgment of
allegiance, obedience, or adherence to any foreign prince
or power, or shall do, concur in, or adopt any act
whereby he may become a subject or citizen of any
foreign state or power, or whereby he may become
entitled to the rights, privileges, or immunities of a
subject or citizen of any foreign state or power, or shall
become bankrupt, or take the beneﬁt of any law
relating to insolvent debtors, or become a public
defaulter, or be attainted. of treason, or be convicted of
felony or of any infamous crime, his seat in such
Council shall thereby become vacant.
8. And be it enacted, That any question which shall
arise respecting any vacancy in the Legislative Council
of the province of Canada, on occasion of any of the
matters aforesaid, shall be referred by the Governor of
the province of Canada to the said Legislative Council,
to be by the said Legislative Council heard and deter-
mined : Provided always, that it shall be lawful, either
for the person respecting whose seat such question shall
have arisen, or for Her Majesty’s Attorney-General for
the said province on Her Majesty’s behalf, to appeal
from the determination of the said Council in such case
to Her Majesty, and that the judgment of Her Majesty
given with the advice of Her Privy Council thereon
shall be ﬁnal and conclusive to all intents and purposes.
9. And be it enacted, That the Governor of the
province of Canada shall have power and authority
from time to time, by an instrument imder the great
seal of the said province, to appoint one member of the
said Legislative Council to be Speaker of the said Legis-
lative Council, and to remove him, and appoint another
in his stead.
10. And be it enacted, That the presence of at least
ten members of the said Legislative Council, including
the Speaker, shall be necessary to constitute a meeting
for the exercise of its powers; and that all questions
Trial of
questions.
Appointment
of Speaker.
Quorum.
Division.
668 3 & rvlo'r. c. 35.-(mums ASSEMBLY. [1840.
Casting vote.
Convoking the
A ssembly.
Representatives
for each pro-
vince.
County of
Halton.
which shall arise in the said Legislative Council shall be
decided by a majority of voices of the members present
other than the Speaker, and when the voices shall be
equal the Speaker shall have the casting vote.
11. And be it enacted, That for the purpose of consti-
tuting the Legislative Assembly of the province of
Canada it shall be lawful for the Governor of the said
province, within the time herein-after mentioned, and
thereafter from time to time as occasion shall require,
in Her Majesty’s name, and by an instrument or
instruments under the great seal of the said province,
to summon and call together a Legislative Assembly in
and for the said province.
12. And be it enacted, That in the Legislative
Assembly of the province of Canada to be constituted
as aforesaid the parts of the said province which now
constitute the provinces of Upper and Lower Canada
respectively shall, subject to the provisions herein-after
contained, be represented by an equal number of
representatives, to be elected for the places and in the
manner herein-after mentioned.
13 , And be it enacted, That the county of Halton in
the province of Upper Canada shall be divided into two
ridings, to be called respectively the East Riding and
the West Riding ; and that the East Riding of the said
county shall consist of the following townships, namely,
Trafalgar, Nelson, Esqnesz'ng, Nassagawega, East
Flamborongh, West Flamborongh, Ertng, Beverley ;
and that the West Riding of the said county shall
consist of the following townships, namely, Garafraxa,
Nichol, Woolwtch, Guelph, Waterloo, Wtlmot, Dam-
frtes, Pasltnch, Eramosa ; and that the East Riding and
West Riding of the said county shall each be repre-
, .sented by one member of the Legislative Assembly of
County of
Northumber-
land. -
the province of Canada.
a 14. And be it enacted, That the county of North-
- ; umberland in the province of Upper Canada shall be
1840.] 3 a 4vIcT. c.'35.-REPRESENTATION or U. c. 669
divided into two ridings, to be called respectively the
North Riding and the South Riding; and that the
North Riding of the last-mentioned county shall consist
of the following townships, namely, Monaghan, Otonabee,
Asphodel, Smith, Douro, Bummer, Belmont, Methuen,
Burleigh, Harvey, Emily, Gore, Ennismore ; and that
the South Riding of the last-mentioned county shall
consist of the following townships, namely, Hamilton,
Haldimand, Cramah, Murrag, Seymour, Percy ; and
that the North Riding and South Riding of the last-
mentioned county shall each be represented by one
member of the Legislative Assembly of the province of
Canada.
15. And be it enacted, That the county of Lincoln in
the province of Upper Canada shall be divided into
two ridings, to be called respectively the North Riding
and the South Riding; and that the North Riding shall
be formed by uniting the ﬁrst riding and second
riding of the said county, and the South Riding by
uniting the third riding and fourth riding of the
said county; and that the North and South Riding of
the last-mentioned county shall each be represented by
one member in the Legislative Assembly of the province
of Canada.
16, And be it enacted, That every county and riding,
other than those herein-before speciﬁed, which at the
time of the passing of this Act was by law entitled to
be represented in the Assembly of the province of
Upper Canada, shall be represented by one member in
the Legislative Assembly of the province of Canada.
17, And be it enacted, That the city of Toronto
shall be represented by two members, and the towns
of .Kingston, Broc/coille, Hamilton, Cornwall, Niagara,
London, and Bgtown, shall each be represented by one
member in the Legislative Assembly of the province of
Canada.
County of
Lincoln.
Other county
constituency
of Upper
Canada.
Town con~
stituency of
Upper Canada.
670 3 &. 4VIOT. c. 35.—REPRESENTATION or L. o. "[1840.
County con-
stituency of
Lower Canada.
1 8c 2 Vict. c. 9.
Further pro-
vision as to
constituency
of Lower
Canada.
Town con-
stituency of
Lower Canada.
Boundaries of
cities and towns
to be settled
by Governor.
18. And be it enacted, That every county which
before and at the time of the passing of the said Act
of Parliament, intituled “ An Act to make temporary
Provision for the Government' of Lower Canada,” was
entitled to be represented in the Assembly of the
province of Lower Canada, except the counties of
Montniorenoy, Orleans, L’Assornption, La Chesnaye,
L’Acadie, Laprairie, Dorchester, and Beanoe, herein-
after mentioned, shall be represented by one member
in the Legislative Assembly of the province of Canada.
19. And be it enacted, That the said counties of
Montmorenoy and Orleans shall be united into and
form one county, to be called the county of Mont-
morenoy ; and that the said counties of L’Assoniption
and La Clzesnag/e shall be united into and form one
county, to be called the county of Leinster ; and that
the said counties of L’Acadie and Laprairie shall be
united into and form one county, to be called the county
of Hantingdon ; and that the counties of Dorohester
and Beaaoe shall be united into and form one county,
to be called the county of > Dorchester ,- and that each
of the said counties of Montmorenoy, Leinster, Hunting-
don, and Dorohester shall be represented by one member
in the Legislative Assembly of the said province of
Canada.
20. And be it enacted, That the cities of Quebec and
Montreal shall each be represented by two members,
and the towns of Three Rivers and Sherbroolce shall
each be represented by one member in the Legislative
Assembly of the province of Canada.
21, And be it enacted, That for the purpose of electing
their several representatives to the said Legislative
Assembly, the cities and towns herein-before mentioned
shall be deemed to be bounded and limited in such
manner as the Governor of the province of Canada,
by letters patent under the great seal of the province,
to be issued within thirty days after the union of the
1840.] 3 a 4 vIcT. c. 35-wnrrs oE ELEeTIoN. 671
said‘ provinces of Upper Canada and Lower Canada,
shall set forth and describe; and such parts of any
such city or town (if any) which shall not 5 be included
within the boundary of such city or town respectively
by such letters patent, for the purposes of this Act
shall be taken to be a part of the adjoining county or
riding, for the purpose of being represented in the said
Legislative Assembly.
22, And be it enacted, That for the purpose of
electing the members of the Legislative Assembly of
the province of Canada, it shall be lawful for the
Governor of the said province, from time to time, to
nominate proper persons to execute the office of re-
turning officer in each of the counties, ridings, cities,
and towns which shall be represented in the Legislative
Assembly of the province of Canada, subject never-
theless to the provisions herein-after contained.
23. And be it enacted, That no person shall be obliged
to execute the said ofﬁce of returning officer for any
longer term than one year, or oftener than once, unless
it shall be at any time otherwise provided by some Act
or Acts of the Legislature of the province of Canada.
24, And be it enacted, that writs for the election of
members to serve in the Legislative Assembly of the
province of Canada shall be issued by the Governor of
the said province, within fourteen days after the sealing
of such instrument as aforesaid, for summoning and
calling together such Legislative Assembly; and that
such writs shall be directed to the returning ofﬁcers of
the said counties, riding, cities, and towns respectively;
and that such writs shall be made returnable within
ﬁfty days at farthest from the day on which they shall
bear date, unless it shall at any time be otherwise pro-
vided by any Act of the Legislature of the said province;
and that writs shall in like manner and form he issued
for the election of members in the case of any vacancy
which shall happen by the death or resignation of the
Returning
officers.
Term of office
of returning
ofﬁcer.
Writs of
election.
67 2 3 a 4 VICT. c. 35.—REPRESENTATION. [1840.
Time and place
of holding
elections.
Power to alter
system of
representation.
person chosen, or by his being summoned to the Legis-
lative Council of the said province, or from any other
legal cause; and that such writs shall be made return-
able within ﬁfty days at farthest from the day on which
they shall bear date, unless it shall be at any time
otherwise provided by any Act of the Legislature of the
said province; and that in any case of any such vacancy
which shall happen by the death of the person chosen,
or by reason of his being so summoned as aforesaid, the
writ for the election of a new member shall be issued
within six days after notice thereof shall have been
delivered to or left at the oﬁce of the proper oﬁicer for
issuing such writs of election.
25, And be it enacted, That it shall be lawful for
the Governor of the province of Canada for the time
being to ﬁx the time and place of holding elections of
members to serve in the Legislative Assembly of the
said province, until otherwise provided for as herein-
after is mentioned, giving not less than eight days’
notice of such time and place.
26, And be it enacted, That it shall be lawful for the
Legislature of the province of Canada, by any Act or
Acts to be hereafter passed, to alter the divisions and
extent of the several counties, ridings, cities, and towns
which shall be represented in the Legislative Assembly
of the province of Canada, and to establish new and
other divisions of the same, and to alter the apportion-
ment of representatives to be chosen by the said
counties, ridings, cities, and towns respectively, and
make a new and diﬁerent apportionment of the number
of representatives to be chosen in and for those parts or
the province of Canada which now constitute the said
provinces of Upper and Lower Canada respectively,
and in and for the several districts, counties, ridings,
and towns in the same, and to alter and regulate the
appointment of returning oﬁicers in and for the same,
and make provision in such manner as they may deem
1840.] 3 a 4 VICT. c. 35.—REPRESENTATION. 673
expedient, for the issuing and return of writs for the
election of members to serve in the said Legislative
Assembly, and the time and place of holding such
elections : Provided always, that it. shall not be lawful Proviso'
to present to the Governor of the province of Canada
for Her Majesty’s assent any Bill of the Legislative
Council and Assembly of the said province by which
the number of representatives in the Legislative
Assembly may be altered, unless the second and third
reading of such Bill in the Legislative Council and the
Legislative Assembly shall have been passed with the
concurrence of two thirds of the members for the time
being of the said Legislative Council and of two thirds
of the members for the time being of the said Legisla-
tive Assembly respectively, and the assent of Her
Majesty shall not be given to any such Bill unless
addresses shall have been presented by the Legislative
Council and the Legislative Assembly respectively to the
Governor, stating that such Bill has been so passed.
2'7, And be it enacted, That until provisions shall otherwise be made by an Act or Acts of the Legislature of the two
of the province of Canada all the laws which at the 3215171132150
time of the passing of this Act are in force in the pro- altered‘
vince of Upper Canada, and all the laws which at the
time of the passing of the said Act of Parliament,
intituled “An Act to make temporary Provision for the 1 & Zl’ict- 0' 9'
Government of Lower Canada,” were in force in the pro-
vince of Lower Canada, relating to the qualiﬁcation
and disqualiﬁcation of any person to be elected or to
sit or vote as a member of the Assembly in the said
provinces respectively (except those which require a
qualiﬁcation of property in candidates for election, for
which provision is herein-after made), and relating to
the qualiﬁcation and disqualiﬁcation of voters at the
election of members to serve in the Assemblies of the
said provinces respectively, and to the oaths to be taken
by any such voters, and to the powers and duties of
returning ofﬁcers, and the proceedings at such elections,
5 2340. l U U
674 .3 a 4 VICT. c. 35.—QUALIFICATIONS. ' [1840.
Qualiﬁcation
of members.
Declaration of
candidates for
election.
and the period during which such elections may be law-
fully continued, and relating to the trial of controverted
elections, and the proceedings incident thereto, and to
the vacating of seats of members, and the issuing and
execution of new writs in case of any seat being
vacated otherwise than by a dissolution of the
Assembly, shall respectively be applied to elections of
members to serve in the Legislative Assembly of the
province of Canada for places situated in those parts
of the province of Canada for which such laws were
passed. ~
28. And be it enacted, That no person shall be cap-
able of being elected a member of the Legislative
Assembly of the province of Canada who shall not be
legally or equitably seised as of freehold, for his own use
and beneﬁt, of lands or tenements held in free and
common socage, or seised or possessed, for his own use
and beneﬁt, of lands or tenements held in ﬁef or in roture,
within the said province of Canada, of the value of ﬁve
hundred pounds of sterling money of Great Britain,
over and above all rents, charges, mortgages, and
incumbrances charged upon and due and payable out
of or affecting the same: and that every candidate at
such election, before he shall be capable of being
elected, shall, if required by any other candidate, or
by any elector, or by the returning officer, make the
following declaration :
“ A.B. do declare and testify, That I am duly seised
at law or in equity, as of freehold, for my own use
and beneﬁt, of lands or tenements held in free and
common socage, [or duly seised possessed, for my
own use and beneﬁt, of lands or tenements, held in ﬁef
or in roture (as the case may be)] in the province of
Canada, of the value of ﬁve hundred pounds of sterling
money of Great Britain, over and above all rents, mort-
gages, charges, and incumbrances charged upon or due
and payable out of or aﬁecting the. same; and that I
have not collusively or colourably obtained a title to
1840.] 3 a 4 vIcT. c. 35.--DUBATION or PARL.
675
or become possessed of the said lands and tenements,
or any part thereof, for the purpose of qualifying or
enabling me to be returned a member of the Legislative
Assembly of the province of Canada.”
29. And be it enacted, That if any person shall
knowingly and ~wilfully make a false declaration
respecting his qualiﬁcation as a candidate at any elec-
tion as aforesaid, such person shall be deemed to be guilty
, of a misdemeanor, and being thereof lawfully convicted
shall suffer the like pains and penalties as by law are
incurred by persons guilty of wilful and corrupt perjury
in the place in which such false declaration shall have
been made.
30, And be it enacted, That it shall be lawful for
the Governor of the province of Canada for the time
being to ﬁx such place or places within any part of the
province of Canada, and such times for holding the ﬁrst
and every other session of the Legislative Council and
Assembly of the said province as he may think ﬁt, such
times and places to be afterwards changed or varied as
the Governor may judge advisable and most consistent
with general convenience and the public welfare, giving
sufficient notice thereof ; and also to prorogue the said
Legislative Council and Assembly from time to time,
and dissolve the same, by proclamation or otherwise,
whenever he shall deem it expedient.
31. And be it enacted, That there shall be a session
of the Legislative Council and Assembly of the province
of Canada, once at least in every year, so that a period of
twelve calendar months shall not intervene between
the last sitting of the Legislative Council and Assembly
in one session and the ﬁrst sitting of the Legislative
Council and Assembly in the next session; and that
every Legislative Assembly of the said province here-
after to be summoned and chosen shall continue for four
years from the day of the return of the writs for
choosing the same, and no longer, subject nevertheless
Persons mak-
ing false decla-
ration liable to
the penalties
of perjury.
' Place and times
of holding
Parliament.
Duration of
Parliament.
U U 2
6'76 3 a 4 VICT. c. 35.—ELECTION or SPEAKER. [1840.
First calling
together of the
Legislature.
Election of the
Speaker.
Quorum.
Division.
Casting vote.
No member to
sit or vote until
he has taken
the following
Oath of Alle-
giance.
to be sooner prorogued or dissolved by the Governor of
the said province. ‘
32, And be it enacted, That the Legislative Council
and Assembly of the province of Canada shall be called
together for the ﬁrst time at some period not later than
six calendar months after the time at which the pro-
vinces of Upper and Lower Canada shall become
re-united as aforesaid.
33, And be it enacted, That the members of the
Legislative Assembly of the province of Canada shall,
upon the ﬁrst assembling after every general election,
proceed forthwith to elect one of their number to be
Speaker; and in case of his death, resignation, or
‘removal by a vote of the said Legislative Assembly, the
said members shall forthwith proceed to elect another
of such members to be such Speaker; and the Speaker
so elected shall preside at all meetings of the said
Legislative Assembly.
34, And be it enacted, That the presence of at least
twenty members of the Legislative Assembly of the
province of Canada, including the Speaker, shall be
necessary to constitute a meeting of the said Legislative
Assembly for the exercise of its powers; and that all
questions which shall arise in the said Assembly shall
be decided by the majority of voices of such members
as shall be present, other than the Speaker, and when
the voices shall be equal the Speaker shall have the
casting voice.
35, And be it enacted, That no member, either of
the Legislative Council or of the Legislative Assembly of
the province of Canada, shall be permitted to sit or vote
therein until he shall have taken and subscribed the
following oath before the Governor of the said province,
or before some person or persons authorized by such
Governor to administer such oath: If
1840.] 3 a 4 VICT. 5. 35.—ASSENT TO BILLS. 67 7
“ A.B. do sincerely promise and swear, That I will
be faithful and bear true allegiance to Her Majesty
Queen Victoria, as lawful sovereign of the United King-
dom of Great Britain and Ireland, and of this province
of Canada, dependent on and belonging to the said
United Kingdom; and that I will defend her to the
utmost ofmy power against all traitorous conspiracies
and attempts whatever which shall be made against her
person, crown, and dignity; and that I will do my
utmost endeavour to disclose and make known to her
Majesty, her heirs and successors, all treasons and
traitorous conspiracies and attempts which I shall
know to be against her or any of them; and all this I
do swear without any equivocation, mental evasion, or
secret reservation, and renouncing all pardons and dis-
pensations from any person or persons whatever to the
contrary. So help me God.”
36, And be it enacted, That every person authorized
by law to make an afﬁrmation instead of taking an
oath may make such affirmation in every case in which
an oath is herein-before required to be taken.
37, And be it enacted, That whenever any Bill
which has been passed by the Legislative Council and
Assembly of the province of Canada shall be presented
for Her Majesty’s assent to the Governor of the said
province, such Governor shall declare, according to his
discretion, but subject nevertheless to the provisions con-
tained in this Act, and to such instructions as may from
time to time be given in that behalf by Her Majesty,
her heirs or successors, that he assents to such Bill in
Her Maj esty’s name, or that he withholds Her Maj esty’s
assent, or that he reserves such Bill for the signiﬁcation
of Her Majesty’s pleasure thereon.
38, And be it enacted, That whenever any Bill which
shall have been presented for Her Majesty’s assent to
the Governor of the said province of Canada shall by
such Governor have been assented to in Her Majesty’s
name, such Governor shall I, by the ﬁrst convenient
Oath of Alle-
g1ance.
Afﬁrmation
instead of oath.
Giving or with-
holding assent
to Bills.
Disallowance
of Bills as-
sented to.
678 s a 4 VICT. c. 35.—DISALLQWANCE or BILLS. [1840.
opportunity transmit to one of Her Maj esty’s principal
Secretaries of State an authentic copy of such Bill so
assented to; and that it shall be lawful, at any time
within two years after such Bill shall have been so
received by such Secretary of State, for Her Majesty,
by Order in Council, to declare her disallowance of such
Bill ; and that such disallowance, together with a certiﬁ-
cate under the hand and seal of such Secretary of State,
certifying the day on which such Bill was received as
aforesaid, being signiﬁed by such Governor to the
Legislative Council and Assembly of Canada, by speech
or message to the Legislative Council and Assembly of
the said province, or by proclamation, shall make void
and annul the same from and after the day of such
signiﬁcation.
(to Bills 39, And be it enacted, That no Bill which shall be
' reserved for the signiﬁcation of Her Majesty’s pleasure
thereon shall have any force or authority within the
province of Canada until the Governor of the said pro-
vince shall signify, either by speech or message to the
Legislative Council and Assembly of the said province,
or by proclamation, that such Bill has been laid before
Her Majesty in Council and that Her Majesty has been
pleased to assent to the same; and that an entry shall
be made in the journals of the said Legislative Council
of every such speech, message, or proclamation, and a
duplicate thereof, duly attested, shall be delivered to the
proper officer, to be kept among the records of the said
province; and that no Bill which shall be so reserved as
aforesaid shall have any force or authority in the said
province unless Her Majesty’s assent thereto shall have
been so signiﬁed as aforesaid within the space of two
years from the day on which such Bill shall have been
presented for Her Majesty’s assent to the Governor as
aforesaid.
Authority of 40, Provided always, and be it enacted, That nothing
the Governor‘ herein contained shall be construed to limit or restrain
the exercise of Her Majesty’s prerogative in autho-g
1840.] 3 a 4 vrer. c. 35.—-GOVERNOR & LIEUT.-GOV. 67 9
rizing, and that notwithstanding this Act, and any other
Act or Acts passed in the Parliament of Great Britain,
or in the Parliament of the United Kingdom of Great
Britain and Ireland, or of the Legislature of the
province of Quebec, or of the provinces of Upper or
Lower Canada respectively, it shall be lawful for Her
Majesty to authorize the Lieutenant-Governor of the
province of Canada to exercise and execute, within
such parts of the said province as Her Majesty shall
think ﬁt, notwithstanding the presence of the Gov-
ernor within the province, such of the powers, functions,
and authority, as well judicial as other, which before
and at the time of passing of this Act were and
are vested in the Governor, Lieutenant-Governor, or
person administering the government of the provinces
of Upper Canada and Lower Canada respectively,
or of either of them, and which from and after the
said re-union of the said two provinces shall become
vested in the Governor of the province of Canada;
and to authorize the Governor of the province of Canada
to assign, depute, substitute, and appoint any person or
persons, jointly or severally, to be his deputy or depu-
ties within any part or parts of the province of Canada,
and in that capacity to exercise, perform, and execute
during the pleasure of the said Governor such of the
powers, functions, and authorities, as well judicial as
other, as before and at the time of the passing of this
Act were and are vested in the Governor, Lieutenant-
Governor, or person administering the government of
the provinces of Upper and Lower Canada respectively,
and which from and after the union of the said pro-
vinces shall become vested in the Governor of the
province of Canada, as the Governor of the province of
Canada shall deem to be necessary or expedient: Pro-
vided always, that by the appointment of a deputy or
deputies as aforesaid the power and authority of the
Governor of the province of Canada shall not be
abridged, altered, or in any way affected otherwise
than as Her Majesty shall think proper to direct.
680 3 a 4 vIc'r. c. 35.—GROWN RIGHTS.
[1840.
Language of
legislative
records.
Ecclesiastical
and Crown
rights.
14 Geo. 3.
c. 83.
41, And be it enacted, That from and after the said
re-union of the said two provinces all Writs, proclama-
tions, instruments for summoning and calling together
the Legislative Council and Legislative Assembly of the
province of Canada, and for proroguing and dissolving
the same, and all Writs of summons and election, and
all Writs and public instruments whatsoever relating to
the said Legislative ~Council and Legislative Assembly,
or either of them, and all returns to such Writs and
instruments, and all journals, entries, and Written or
printed proceedings, of What nature soever, of the said
Legislative Council and Legislative Assembly, and of
each of them respectively, and all Written or printed
proceedings and reports of committees of the said
Legislative Council and Legislative Assembly respec-
tively, shall be in the English language only : Provided
always, that this enactment shall not be construed to
prevent translated copies of any such documents being
made, but no such copy shall be kept among the records
of the Legislative Council or Legislative Assembly, or
be deemed in any case to have the force of an original
record.
42. And be it enacted, That whenever any Bill or
Bills shall be passed by the Legislative Council and
Assembly of the province of Canada, containing any
provisions to vary or repeal any of the provisions noW
in force contained in an Act of the Parliament of Great
Britain passed in the fourteenth year of the reign of
His late Majesty King George the Third, intituled “ An
Act for making more effectual Provision for the Govern-
ment of the Province of Quebec in North America,”
or in the aforesaid Acts of Parliament passed in the‘
thirty-ﬁrst year of the same reign, respecting the
accustomed dues and rights of the clergy of the Church
of Rome ; or to vary or repeal any of the several pro-
visions contained in the said last-mentioned Act, respect-
ing the allotment and appropriation of lands for the
support of the Protestant clergy Within the province of
1840] 3 a 4 vicr. c. 35.—CHURCH RIGHTS. ‘ 681
Canada, or respecting the constituting, erecting, or
endowing of parsonages or rectories within the province
of Canada, or respecting the presentation of incumbents
or ministers of the same, or respecting the tenure on
which such incumbents or ministers shall hold or enj oy
the same; and also that whenever any Bill or Bills shall
be passed containing any provisions which shall in any
manner relate to or aﬁect the enjoyment or exercise of
any fornf or mode of religious worship, or shall impose or
create any penalties, burdens, disabilities, or disqualiﬁ-
cations in respect of the same, or shall in any manner
relate to or affect the payment, recovery, or enjoyment
of, any of the accustomed dues or rights herein-before
mentioned, or shall in any manner relate to the grant-
ing, imposing, or recovering of any other dues, or
stipends, or emoluments, to be paid to or for the use of
any minister, priest, ecclesiastic, or teacher, according
to any form or mode of religious worship, in respect of
his said ofﬁce or function ; or shall in any manner relate
to or affect the establishment or discipline of the United
Church of England and Ireland among the members
thereof within the said‘ province ; or shall in any manner
relate to or affect Her Majesty’s prerogative touching
the granting of waste lands of the Crown within the said
province; every such Bill or Bills shall, previously to '
any declaration or signiﬁcation of Her Majesty’s assent
thereto, be laid before both Houses of Parliament of the
United Kingdom of Great Britain and Ireland; and
that it shall not be lawful for Her Majesty to signify
her assent to any such Bill or Bills until thirty days
after the same shall have been laid before the said
Houses, or to assent to any such Bill or Bills in case
either House of Parliament shall, within the said thirty
days, address Her Majesty to withold her assent from
any such Bill or Bills; and that no such Bill shall be
valid or effectual to any of the said purposes within the
said province of Canada unless the Legislative Council
and ‘Assembly of such province shall, in the session in
which the same shall have been passed by them, have pre-
682 3 a 4 VICT. c. 35.—“REG. OF COMMERCE.” [1840.
sented to the Governor of the said province an address or
addresses specifying that such Bill or Bills contains
provisions for some of the purposes herein-before speci-
ally described, and desiring that, in order to give eﬁect
to the same, such Bills or Bills may be transmitted to
England without delay, for the purpose of its being laid
before Parliament previously to the signiﬁcation of Her
Majesty’s assent thereto.
4:3. And whereas by an Act passed in the eighteenth
year of the reign of His late Majesty King George the
(1.813.60-3- Third, intituled “An Act for removing all doubts and
apprehensions concerning Taxation by the Parliament of
Great Britain in any of the Colonies, Provinces, and Plan-
tations in North America and the West Indies ; and
for repealing so much of an Act made in the‘ seventh
year of the reign of His present Majesty as imposes a
Duty on Tea imported from Great Britain into any
Colony or Plantation in America, or relating thereto,”
it was declared, that “the King and Parliament of
Great Britain would not impose any duty, tax, or
assessment whatever, payable in any of His Majesty’s
colonies, provinces, and plantations in North America
or the West Indies, except only such duties as it might
be expedient to impose for the regulation of commerce,
the net produce of such duties to be always paid and
applied to and for the use of the colony, province, or
plantation in which the same shall be respectively
levied, in such‘ manner as other duties collected by the
authority of the respective general courts or general
assemblies of such colonies, provinces, or plantations
were ordinarily paid and applied”: And whereas it is
necessary, for the general beneﬁt of the empire, that
such power of regulation of commerce should continue
to be exercised by Her Majesty and the Parliament of
the United Kingdom of Great Britain and Ireland,
subject nevertheless to the conditions herein-before
recited with respect to the application of any duties
may be imposed for that purpose ; be it therefore
1840.] 3 a 4 VICT. c. 35. APPEAL eoun'rs. 683
enacted, That nothing in this Act contained shall pre4
vent or affect the execution of any law which hath
been or shall be made in the Parliament of the said
United Kingdom for establishing regulations and pro-
hibitions, or for the imposing, levying, or collecting
duties for the regulation of navigation, or for the
regulation of the commerce between the province of
Canada and any other part of Her Majesty’s domi-
nions, or between the said province of Canada or any
part thereof and any foreign country or state, or for
appointing and directing the payment of drawbacks of
such duties so imposed, or to give to Her Majesty any
power or authority, by and with the advice and consent
of such Legislative Council and Assembly of the said
province of Canada, to vary or repeal any such law or
laws, or any part thereof, or in any manner to prevent
or obstruct the execution thereof: Provided always,
that the net produce of all duties which shall be so
imposed shall at all times hereafter be applied to and
for the use of the said province of Canada, and (except
as herein-after provided) in such manner only as shall
be directed by any law or laws which may be made by
Her Majesty, by and with the advice and consent of
the Legislative Council and Assembly of such province.
44, And whereas by the laws now in force in the
said province of Upper Canada, the Governor, Lieu-
tenant-Governor, or person administering the govern-
ment of the said province, or the Chief Justice of the
said province, together with any two or more of the
members of the Executive Council of the said province,
constitute and are a Court of Appeal for hearing“ and
determining all appeals from such judgments or sentences
as may lawfully be brought before them: And whereas
by an Act of the Legislature of the said province of
Upper Canada, passed in the thirty-third year of the
reign of His late Majesty King George the Third,
intituled “ An Act to establish a Court of Probate in the
said Province, and also a Surrogate Court in every
Courts of
Appeal, Pro-
bate, Queen’s
Bench, and
Chancery, in
Upper Canada;
and Court of
Appeal in
Lower Canada.
(Laws of
Upper Canada,
33 Geo. 3.
sess. 2. c. 8.)
684 3 a 4.- VIGT. c. 35- COURTS or U. c. [1840.
District thereof,” there was and is established a Court of
Probate in the said province, in which Act it was enacted
that the Governor, Lieutenant-Governor, or person ad-
ministering the government of the said last-mentioned
province should preside, and that he should have the
Ocfanada powers and authorities in the said Act speciﬁed: And
2 Will. 4. c. 8)’ whereas by an Act of the Legislature of the said
province of Upper Canada, passed in the second year of
the reign of His late Majesty King William the Fourth,
intituled “ An Act respecting the Time and Place of
Sitting of the Court of King’s Bench,” it was among
other things enacted, that His Majesty’s Court of
King’s Bench in that province should be holden in a
place certain; that is, in the city, town, or place which
should be for the time being the seat of the civil
government of the said province or within one mile
gamch therefrom : And whereas by an Act of the Legislature
7iiiiu.4.<§.§)’. of the said province of Upper Canada, passed in the
seventh year of the reign of His late Majesty King
William the Fourth, intituled “An Act to establish a
Court of Chancery in this Province,” it was enacted,
that there should be constituted and established a Court
of Chancery, to be called and known by the name and
style of “ The Court of Chancery for the province of
Upper Canada,” of which Court the Governor, Lieu-
tenant-Governor, or person administering the govern-
ment of the said province should be Chancellor; and
which court, it was also enacted, should be holden at
the seat of government in the said province, or in such
other place as should be appointed by proclamation of
the .Governor, Lieutenant-Governor, or person adminis-
(é‘anada tering the government of the said province: .And
34 Geo. 3.0. 6.’) whereas‘ by an Act of the Legislature of the province of
Lower Canada, passed in the thirty-fourth year of the
reign of His late Majesty King George the Third,
intituled “ An Act for the Division of ,the Province of
Lower Canada, for amending the Judicature thereof,
and for repealing certain Laws therein mentioned,” .it
was enacted, that the Governor, Lieutenant-Governor,
1840.] 3 a 4 VIOT. c. 35.-COURTS or L. c. 685
or the person administering the government, the
members of the Executive Council of the said province,
the Chief Justice thereof, and the Chief Justice to be
appointed for the Court of King’s Bench at Montreal,
or any ﬁve of them, the judges of the court of the
district wherein the judgment appealed from was given
excepted, should constitute a Superior Court of Civil
Jurisdiction, or provincial Court of Appeals, and should
take cognizance of, hear, try, and determine all causes,
matters, and things appealed from all civil jurisdictions
and courts wherein an appeal is by law allowed; be it
enacted, That until otherwise provided by an Act of the
Legislature of the province of Canada, all judicial and
ministerial authority which before and at the time of
passing this Act was vested in or might be exercised by
the Governor, Lieutenant-Governor, or person adminis-
tering the government of the said province of Upper
Canada, or the members or any number of the members
of the Executive Council of the same province, or
was vested in or might be exercised by the Governor,
Lieutenant-Governor, or the person administering the
government of the province of Lower Canada, and the
members of the Executive Council of that province,
shall be vested in and may be exercised by the Governor,
Lieutenant-Governor, or person administering the gov-
ernment of the province of Canada, and in the members
or the like number of the members of the Executive
Council of the province of Canada respectively; and
that, until otherwise provided by Act or Acts of the
Legislature of the province of Canada, the said Court
of King’s Bench, now called the Court of Queen’s Bench
of Upper Canada, shall from and after the union of the
provinces of Upper and Lower Canada be holden at the
city of Toronto, or within one mile from the municipal
boundary of the said city of Toronto : Provided always,
that, until otherwise provided by Act or Acts of the
Legislature of. the province of Canada, it shall be lawful
for the Governor of the province of Canada, by and with
the advice and consent of the Executive Council of
686 3 a 4 vIoT. c. 35.—POWERS or GOVERNOR. [1840.
the same province, by his proclamation to ﬁx and
appoint such other place as he may think ﬁt within that
part of the last-mentioned province which now consti-
tutes the province of Upper ' Canada for the holding of
the said Court of Queen’s Bench.
fpeiygiligobge 4-5, And be it enacted, That all powers, authorities,
Governor with and functions which by the said Act passed in the thirty-
$15.55;???“ ﬁrst year of the reign of His late Majesty King George the
alone‘ Third, or by any other Act of Parliament, or by any Act
of the Legislature of the provinces of Upper and Lower
Canada respectively, are vested in or are authorized or
required to be exercised by the respective Governors or
Lieutenant-Governors of the said provinces, with the
advice or with the advice and consent of the Executive
Council of such provinces respectively, or in conjunction
‘with such Executive Council, or with any number of
the members thereof, or by the said Governors or Lieu-
tenant-Governors individually and alone, shall, in so far
as the same are not repugnant to or inconsistent with the
provision of this Act, be vested in and may be exercised by
the Governor of the province of Canada, with the advice
or with the advice and consent of, or in conjunction, as
the case may require, with such Executive Council, or
any members thereof, as may be appointed by Her
Majesty for the affairs of the province of Canada, or by
the said Governor of the province of Canada individu-
ally and alone in cases where the advice, consent, or
concurrence of the Executive Council is not required.
giggling laws _ 4-6. And be it enacted, That all laws, statutes, or
ordinances, which at the time of the union of the
provinces of Upper Canada and Lower Canada shall be in
force within the said provinces, or either of them, or any
part of the said provinces respectively, shall remain and
continue to be of the same force, authority, and effect
in those parts of the province of Canada which now
constitute the said provinces respectively as if this Act
had not been made, and as if the said two provinces had
1840.] a & 4 vIcT. c. 35. SAVED LAWS & COURTS. 687
not been'united as aforesaid, except in so far as the same
are repealed or varied by this Act, or in so far as the
same shall or may hereafter, by virtue and under the
authority of this Act, be repealed or varied by any
Act or Acts of the Legislature of the province of
Canada.
4'7, And be it enacted, That all the courts of civil
and criminal jurisdiction within the provinces of Upper
and Lower Canada at the time of the union of the said
provinces, and all legal commissions, powers, and autho-
rities, and all ofﬁcers, judicial, administrative, or minis-
terial, within the said provinces respectively, except in
so far as the same may be abolished, altered, or varied by
or may be inconsistent with the provisions of this Act,
or shall be abolished, altered, or varied by any Act or
Acts of the Legislature of the province of Canada, shall
continue to subsist within those parts of the province
of Canada which now constitute the said two provinces
respectively, in the same form and with the same effect
as if this Act had not been made, and as if the said two
provinces had not been re-united as aforesaid.
48, And whereas the Legislatures of the said pro-
vinces of Upper and Lower Canada have from time to
time passed enactments, which enactments were to
continue in force for a certain number of years after
the passing thereof, “ and from thence to the end of
the then next ensuing session of the Legislature of
the province in which the same were passed ;” be it
therefore enacted, That whenever the words “ and from
thence to the end of the then next ensuing session of
the Legislature,” or words to the same effect, have been
used in any temporary Act of either of the said two pro-
vinces which shall not have expired before the re-union
Courts of
justice, com-
IIllSSlOnS,
officers, &c.
Provision
respecting tem-
porary Acts.
of the said two provinces, the said words shall be,
construed to extend and apply to the next session of
the Legislature of the province of Canada.
688 3 & 4 VICT. c. 35.—-CONSOLIDATED FUND. [1840.
Repeal of part
of 3 Geo. 4.
c. 119.
Revenues of
the two pro-
vinces to form
:1. Consolidated
Revenue Fund
of the province
of Canada.
Consolidated
Revenue Fund
to be charged
with expense
of collection
and manage-
ment.
£45,000 to be
granted perma-
nently, for the
services in
Schedule A.,
49, And whereas by a certain Act passed in the
third year of the reign of His late Majesty King George
the Fourth, intituled “ An Act to regulate the Trade of
the Provinces of Lower and Upper Canada and for
other Purposes relating to the said Provinces,” certain
provisions were made for appointing arbitrators, with
power to hear and determine certain claims of the
province of Upper Canada upon the province of Lower
Canada, and to hear any claim which might be advanced
on the part of the province of Upper Canada to a pro-
portion of certain duties therein mentioned, and for
prescribing the course of proceeding to be pursued by
such arbitrators; be it enacted, That the said recited
provisions of the said last-mentioned Act, and all
matters in the same Act contained which are conse-
quent to or dependent upon the said provisions or any
of them, shall be repealed.
50. And be it enacted, That upon the union of the
provinces of Upper and Lower Canada all duties and
revenues over which the respective Legislatures of the
said provinces before and at the time of the passing of
this Act had and have power of appropriation shall
form one Consolidated Revenue Fund, to be appropriated
for the public service of the province of Canada, in
the manner and subject to the charges herein-after
mentioned.
51, And be it enacted, That the said Consolidated
Revenue Fund of the province of Canada shall be
permanently charged with all the costs, charges, and
expenses incident to the collection, management, and
receipt thereof, such costs, charges, and expenses being
subject nevertheless to be reviewed and audited in such
manner as shall be directed by any Act of the Legis-
lature of the province of Canada.
52. And be it enacted, That out of the Consolidated
Revenue Fund of the province of Canada there shall be
payable in every year to Her Majesty, her heirs and
1840.] 3 a 4 vIcT. c. 35.-own. LIST.
689
successors, the sum of forty-ﬁve thousand pounds, for
defraying the expense of the several services and pur-
poses named in the Schedule marked A. to this Act
annexed; and during the life of Her esty, and for
ﬁve years after the demise of Her Majesty, there shall
be payable to Her Majesty, her heirs and successors, out
of the said Consolidated Revenue Fund, a further sum
of thirty thousand pounds, for defraying the expense of
the several services and purposes named in the Schedule
marked B. to this Act annexed; the said sums of forty-
ﬁve thousand pounds and thirty thousand pounds to be
issued by the Receiver-General in discharge of such
warrant or ‘warrants as shall be from time to time
directed to him under the hand and seal of the Governor ;
and the said Receiver-General shall account to Her
Majesty for the same, through the Lord High Treasurer
or Lords Commissioners of Her Majesty’s Treasury, in
such manner and form as Her Majesty shall be graciously
pleased to direct.
53, And be it enacted, That, until altered by any
Act of the Legislature of the province of Canada, the
salaries of the Governor and of the Judges shall be those
respectively set against their several offices in the said
Schedule A.; but that it shall be lawful for the Governor
to abolish any of the ofﬁces named in the said Schedule
B., or to vary the sums appropriated to any of the
services or purposes named in the said Schedule B.; and
that the amount of saving which may accrue from any
such alteration. in either of the said Schedules shall be
appropriated to such purposes connected with the
administration of the government of the said province
as to Her Majesty shall seem ﬁt; and that accounts in
detail of the expenditure of the several sums of forty-
ﬁve thousand pounds and thirty thousand pounds herein-
before granted, and of every part thereof, shall be laid
before the Legislative Council and Legislative Assembly
of the said province within thirty days next after the
beginning of the session after such expenditure shall
S 2340. X X
and £30,000
for the life 01
Her Majesty,
and ﬁve years
following, for
ose in
th
Schedule B.
How the appro-
priation of
sums granted
may be varied.
690 3 a 4 vror. c. 35.—CROWN REVENUES SURRD. [1840.
have been made: Provided always, that not more than
two thousand pounds shall be payable at the same time
for pensions to the Judges out of the said sum of forty-
ﬁve thousand pounds, and that not more than ﬁve
thousand pounds shall be payable at the same time for
pensions out of the said sum of thirty thousand pounds;
and that'a list of all such pensions, and of the persons to
whom the same shall have been granted, shall be laid
in every year before the said Legislative Council and
Legislative Assembly.
of 54-. And be it enacted, That during the time for
lgrenues ofthe which the said several sums of forty-ﬁve thousand
mm pounds and thirty thousand pounds are severally payable
the same shall be accepted and taken by Her Majesty
by way of civil list, instead of all territorial and other
revenues now at the disposal of the Crown, arising in
either of the said provinces of Upper Canada or Lower
Canada, or in the province of Canada, and that three-
ﬁfths of the not produce of the said territorial and other
[revenues now at the disposal of the Crown within the
province of Canada shall be paid over to the account of
the said Consolidated Revenue Fund; and also during
the life of Her Majesty, and for ﬁve years after the
demise of Her Majesty, the remaining two ﬁfths of the
not produce of the said territorial and other revenues
now at the disposal of the Crown within the province of
Canada shall be also paid over in like manner to the
account of the said Consolidated Revenue Fund.
glggggscreated 55. And be it enacted, That the consolidation of the
or either pro- duties and revenues of the said province shall not be
Vmce' taken to affect the payment out of the said Consolidated
Revenue Fund of any sum or sums heretofore charged
upon the rates and duties already raised, levied, and
collected, or to be raised, levied and collected, to and for
the use of either of the said provinces of Upper Canada
or Lower Canada or of the province of Canada, for
such time as shall have been appointed by the several
1840.] 3 a 4 VICT. c. 35.--CHARGESCON coNs. FUND. 691
Acts of the Legislature of the province by which such
charges were severally authorized.
56. And be it enacted, That the expenses of the
collection, management, and receipt of the said Con-
solidated Revenue Fund shall form the ﬁrst charge
thereon; and that the annual interest of the public
debt of the provinces of Upper and Lower Canada, or
of either of them, at the time of the re-union of the said
provinces, shall form the second charge thereon; and
that the payments to be made to the clergy 'of the
United Church of England and Ireland, and to clergy
of the Church of Scotland, and to ministers of other
Christian denominations, pursuant to any law or usage
whereby such payments, before or at the time of passing
this Act, were or are legally or usually paid out of the
Public or Crown Revenue of either of the provinces of
Upper and Lower Canada, shall form the third charge
upon the said Consolidated Revenue Fund; and that
the said sum of forty-ﬁve thousand pounds shall form
the fourth charge thereon; and that the said sum of
thirty thousand pounds, so long as the same shall con-
tinue to be payable, shall form the ﬁfth charge thereon;
and that the other charges upon the rates and duties
levied within the said province of Canada herein-before
reserved shall form the sixth charge thereon, so long as
such charges shall continue to be payable.
5'7, And be it enacted, That, subject to the several
payments hereby charged on the said Consolidated
Revenue Fund, the same shall be appropriated by the
Legislature of the province of Canada for the public
service, in such manner as they shall think proper:
Provided always, that all Bills for appropriating any
part of the surplus of the said Consolidated Revenue
Fund, or for imposing any new tax or impost, shall
originate in the Legislative Assembly of the said pro-
vince of Canada: Provided also, that it shall not be
lawful for the said Legislative Assembly to originate or
The order of
charges on the
Consolidated
Fund to be :—
1st. Expense
of collection ;
2nd. Interest
of the debt;
3rd. Payments
to the clergy ;
4th and 5th
Civil List ;
6th. Other
charges already
made on the
Public
Revenue.
Subject to the
above charges,
the Consoli-
dated Revenue
Fund to be
appropriated
by the Pro-
vincial Legis-
lature by Bills
originating in
the House of
Assembly for
objects recom-
mended by the
Governor.
x X 2
692 3 a 4. won c. 35.--POWERS OF GOVERNOR. [1840.
Townships to
be constituted.
Powers of
Governor to be
exercised sub-
ject to instruc-
tions of Her
Majesty.
Magdalen
Islands may be
annexed to the
Island of
Prince Edward.
pass any vote, resolution, or Bill for the appropriation
of any part of the surplus of the said Consolidated
Revenue Fund, or of any other tax or impost, to any
purpose which shall not have been ﬁrst recommended
by a message of the Governor to the said Legislative
Assembly during the session in which such vote,
resolution, or bill shall be passed.
58, And be it enacted, That it shall. be lawful for
the Governor, by an instrument or instruments to be
issued by him for that purpose under the great seal of
the province, to constitute townships in those parts of
the province of Canada in which townships are not
already constituted, and to ﬁx the metes and bounds
thereof, and to provide for the election and appointment
of township officers therein, who shall have and exercise
the like powers as are exercised by the like officers in
the townships already constituted in that part of the
‘province of Canada now called Upper Canada; and
every such Instrument shall be published by proclama-
tion, and shall have the force of law from a day to be
named in each case in such proclamation.
59, And be it enacted, That all powers and authorities
expressed in this Act to be given to the Governor of the
province of Canada shall be exercised by such Governor
in conformity with and subject to such orders, instruc-
tions, and directions as Her Majesty shall from time to
time see ﬁt to make or issue.
60, And whereas His late Majesty King George the
Third, by his royal proclamation, hearing date the
seventh day of October in the third year of his reign,
was pleased to declare that he had put the coast of
Labrador, from the River Saint John to Hudson’s
Straits, with the islands of Anticosti and llladelaine, and
all other smaller islands lying on the said coast, under
the care and inspection of the Governor of Newfound-
land .- And whereas by an Act passed in the fourteenth
1840.] 3 a 4 VICT. 5. 35.-om) SALARIES. 693
year of the reign of His said late Majesty, intituled
“ An Act for making more effectual Provision for the
Government of the Province of Quebec in North
America,” all such territories, islands, and counties
which had, since the tenth day of February in the year
one thousand seven hundred and sixty-three, been made
part of the Government of Newfoundland, were during
His Majesty’s pleasure annexed to and made part and
parcel of the province of Quebec, as created and estab-
lished by the said royal proclamation; be it declared
and enacted, That nothing in this or any other Act
contained shall be construed to restain Her Majesty, if
she shall be so pleased, from annexing the Magdalen
Islands in the Gulf of Saint Lawrence to Her Majesty’s
island of Prince Edward.
61, And be it enacted, That in this Act, unless
otherwise expressed therein, the words “ Act of the
Legislature of the province of Canada” are to be
understood to mean “ Act of Her Majesty, her heirs or
successors, enacted by Her Majesty, or by the Governor
on behalf of Her Majesty, with the advice and consent
of the Legislative Council and Assembly of the province
of Canada”; and the words “ Governor of the province
of Canada” are to be understood as comprehending the
Governor, Lieutenant-Governor, or person authorized to
execute the oflice or the functions of Governor of the
said province.
62. And be it enacted, That this Act may be
amended or repealed by any Act to be passed in the
present session of Parliament.
SCHEDULES.

SCHEDULE A.
.6
Governor - ~ 7,000
Lieutenant-Governor - - - ~ — - - - 1,000
14 Geo. 3.
c. 83.
Interpretation
clause.
Act may be
altered this
session.
6944 3 & 4: VICT. c. 78.——CLERGY RESERVES. [1840.
UPPER CANADA. .- £
1 Chief Justice - - - - - - - - - 1,500
4 Puisne Judges, at £900 each - - - - - - 3,600
1 Vice-Chancellor - - - - - - - - - 1,125
Lowna CANADA.

1 Chief Justice, Quebec - ‘ - - - - - - - 1,500
3 Puisne Judges, Quebec, at £900 each - - - - - 2,700
1 Chief Justice, Montreal - - - - - - - Lloo
3 Puisne Judges, Montreal, at £900 each- - — — - 2,700
1 Resident Judge at Three Rivers - - - - - - 900
1 Judge of the Inferior District of St. Francis - - - 500
1 Judge of the Inferior District of Gaspé - - - - 500
Pensions to the Judges, Salaries of the Attornies and Solicitors
General, and Contingent and Miscellaneous Expenses of
Administration of Justice throughout the Province of
Canada - - - - - — - - - - 20,875
£45,000
SCHEDULE B.
Civil Secretaries and their Ofﬁces - - - - - - 8,000
Provincial Secretaries and their Offices - - - - - 3,000
Receiver-General and his Oﬁice - - - - - - 3,000
Inspector-General and his Oﬂice - - - - - - 2,000
Executive Council - - - - - ~ - - - 3,000
Board of Works ~ - - - - - - - - 2,000
Emigrant Agent - - - - - - - - - 700
Pensions - — - - - - - - - - 5,000
Contingent Expenses of Public Oiﬁces - - - - 3,300
£30,000
\_,_—‘
3 a 4 VICT. (1840) c. 78.
Secs. 11 and 13 repealed by S. L. R. Act, No. 2, 18745,
37 & 38 Vict. c. 96. Preamble, sec. 1 to the words
“ this Act,” and sec. 8 from the words “lord high” to
“ Majesty’s ” and from “ of the United Kingdom ” to
“ Ireland,” repealed by S. L. R., 1890, No. 2, 53 81) 541
Vict. c. 51. See 7 80 8 Geo. 4r. 0. 62.,and 16 & 17 Vict.
c. 21.
This was an Act to provide for the ﬁnal disposition
of the lands called Clergy Reserves in Canada, and for
the appropriation of the yearly income arising there-
from for the maintenance of religion and the advance-
ment of Christian knowledge within the province. And
that it should be lawful for the Governor of the pro-
1940.] 3 a 4. VICT. c. 78.-—-OLERGY FUNDS. 695
vince of Canada, with the advice of the Executive
Council, under such regulations made by him in Coun-
cil and approved by the Queen in Council, to sell and
convey in fee simple all or any of the said Clergy
Reserves. The quantity sold in any one year not to
exceed 100,000 acres.
By sec. 2, the proceeds of all past sales which had been
invested under 7 & 8 Geo. d. c. 62. were to be subject
to the order of the Governor in Council, either for invest-
ing in public funds in the province of Canada secured
on the consolidated fund of the province, or in the
public funds of Great Britain.
By sec. 3, the interest and dividends accruing on
such investment, 800., were to be paid to the Receiver-
General of the province of Canada, and were together
to form an annual fund in the ﬁrst place to satisfy all
annual stipends and allowances as had been hitherto
assigned and given to the clergy of the Churches of
England and Scotland, or to any other religious bodies
or denominations of Christians in Canada, and to which
the faith of the Crown was pledged, during the lives of
the persons receiving the same. The section then pro-
vided that until the annual fund so created and de-
posited should sufﬁce to meet the above stipends and
allowances, so much as the fund might be insufficient
was to be paid out of the casual and territorial revenue
of the Crown in the province of Canada.
By see. 4, when the fund exceeded the several
stipends and allowances, and subject to the prior satis-
faction of them, the annual fund was to be appro-
priated as follows. The net interest accruing upon invest-
ments of the proceeds of all sales of reserves sold under
7 & 8 Geo. 4t. 0. 62. were to be divided into three
equal parts, of which two were to be appropriated to the
Church of England and one to the Church of Scotland in
Canada ; and the net interest, &c., accruing upon invest-
ments of the proceeds of all sales of reserves sold under
authority of this Act were to be divided into six equal
696 3 & 4 VICT. c. 78.—CLERGY FUND SURPLUS. ‘[1840.
parts, of which two were to be appropriated to the Church
of England and one to the Church of Scotland in
Canada. The section then provided that the amount of
the before-mentioned stipends and allowances which
should be paid to and received by any clergyman of either
of the said Churches of England or Scotland were to be
taken, as far as the same went, as a part of the share ac-
cruing to each Church respectively by virtue of this Act,
that is, the stipends and allowances to any clergyman
of the Church of England as part of the share accruing
to the Church of England, and the stipends and allow-
ances to any clergyman of the Church of Scotland as
part of the share accruing to the Church of Scotland, so
that neither of the said Churches should receive any
further or other sum beyond such respective stipends
and allowances until the proportion of the said annual
fund allotted to them respectively in manner aforesaid
should exceed the annual amount of such stipends and
allowances.
By sec. 5, it was enacted that the share appropriated
to each of the said Churches should be expended for the
support and maintenance of public worship and the
propagation of religious knowledge, the share of the
Church of England being so expended under the autho-
rity of the “ Society for the Propagation of the Gospel in
Foreign Parts,” and the share of the Church of Scotland
under the authority of a board of nine commissioners,
to be elected by the Synod of the Presbyterian Church
of Canada in connection with the Church of Scotland.
By sec. 6, the share of each Church was to be paid
on warrant of the Governor.
By sec. 7, it was provided that the residue of the
annual fund should be applied by the Governor of
Canada, with the advice of the Executive Council, for ’
purposes of public worship and religious instruction in
Canada.
By sec. 8, the Receiver-General was, on or before the
15th January in every year, to deliver to the Governor
1842.] 5 a e VICT. 5. 120.—CONSTITUTION or N.E‘.L. 697
a certiﬁcate of the net amount which in that year would
be applicable to the several Churches of England and
Scotland out of the fund. And that whenever the sum
applicable was less than £7,700 in case of the Church
of England in Upper Canada, and £1,580 in the case
of the Church of Scotland in Upper Canada,‘ the de-
ﬁciency in each case was to be made good out‘ of the
consolidated fund of the United Kingdom.
By sec. 9, accounts were to be rendered to the
Governor in Council.
Sec. 10 gave the Governor a summary remedy in
case of any misapplication of the funds.
By sec. 11, so much of 31 Geo. 3. c. 31. as related to
any reservations of land hereafter to be made in Upper
and Lower Canada for the support and maintenance of
a Protestant clergy was repealed.
By sec. 12, “Province of Canada’ was to mean
the United Provinces under 3 & 41 Vict. c. 35., and
“ Governor,” Governor, or Lieutenant-Governor, &c.
J
5 80 6 VICT. (1842) c. 45.
Imperial Copyright Act. See post, Copyright Acts.
5 a e VICT. (1842) 5. 120.
Secs. 5, 6, 8, 9, 10, 11, repealed by S. L. R., 18741,
No. 2, 37 82; 38 Vict. c. 96. Preamble, sec. 1 to the
words “ of the same, that,” repealed S. L. R., 1890, No. 2,
53 & 541 Vict. c. 51.
An Act for amending the Constitution of the
Government of Newfoundland. [12 Aug. 1842.]
'VVHEREAS by a commission under the great seal
of the United Kingdom of Great Britain and
Ireland, bearing date at Westminster the second day of
March in the year one thousand eight hundred and
thirty-two, His late Majesty King William the Fourth
did give and grant unto the then Governor of the island
of Newfoundland full power ‘and authority, with the
698 5 o 6 VICT. c. 120.—TOWNSHIPS IN N.F.L. [1842.
advice and consent of the Council of the said island, from
time to time, as need should require, to summon and
call general assemblies of the freeholders and house-
holders within the said island and its dependencies, in
such manner and form, and according to such powers,
instructions, and authorities as were granted or appointed
by certain instructions under His said late Maj esty’s
sign manual and signet accompanying the said com-
mission; and His said late Majesty did by the said
commission declare, that the persons so elected, having
taken certain oaths therein mentioned, should be called
and deemed the General Assembly of the said island of
Newfoundland ; and the said Governor, by and with the
advice and consent of the said Council and Assembly or
the major part of them respectively, was by the said
commission empowered and authorized to make, consti-
tute, and ordain laws, statutes, and ordinances for the
public peace, welfare, and good government of the said
island and its dependencies, and the people and inhabi-
tants thereof, and such others as should resort thereto,
and for the beneﬁt of His late Majesty, his heirs and
successors: And whereas by the before-mentioned
instructions so referred to as aforesaid in the said com-
mission the said Governor was authorized to issue a
proclamation dividing the said island into districts or
counties, towns or townships, and appointing the limits
thereof, and declaring and appointing the number of
representatives to be chosen by each of such districts or
counties, towns or townships respectively: And whereas
the proclamation referred to in the said last-mentioned
instructions was accordingly issued by the said Governor
in the name and on the behalf of His said late Majesty,
whereby the said island was divided into nine districts
for the purpose of the election of the members of the
said Assembly; and it was by the said proclamation,
amongst other things, declared, that every man being of
the full age of twenty-one years and upwards, and being
of sound understanding, and being a natural- born sub-
jectof‘His saidlate Majesty," or having‘ ‘been lawfully
1842.] 5 a e vrc'r. c. 120.—LEGISLATORS. 699
naturalized, and never having been convicted in due
course of law of any infamous crime, and having for two
years next immediately preceding the day of election
occupied a dwelling house within the said island, as
owner or tenant thereof, should be eligible to be a
member of the said House of Assembly; and it was by
the said proclamation further declared, that every man
who for one year next immediately preceding the day of
election had occupied a dwelling house within the said
island, as owner or tenant thereof, and who in other
respects might be eligible, according to the regulations
aforesaid, to be a member of the said House of Assembly,
should be competent and entitled to vote for the election
of members of the said Assembly in and for the district
within which the dwelling house so occupied as afore-
said by him might be situated : And whereas, in pur-
suance of the said commission, instruction, and pro-
clamation, General Assemblies have since been elected
and holden in and for the said island of Newfoundland
in the manner therein prescribed; and the said com-
mission and instructions have from time to time been
renewed on the appointment of the successive Governors
of the said island, and divers laws have been made in
pursuance thereof by the said Governor, Council, and
Assembly : And whereas it is expedient that the changes
herein-after mentioned should be made in the constitu-
tion of the Government of the said island; be it therefore
enacted by the Queen’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, That it
shall be lawful for Her Majesty in or by any commission
or commissions under the great seal of the United
' Kingdom, to be hereafter issued for the Government of
Newfonnd land, and in and by any instructions under
Her Majesty’s signet and sign manual accompanying
and referred to in any such commission or commissions,
to establish a qualiﬁcation in respect of income or pro-
perty in right of which any person may be hereafter
Her Majesty
empowered to
raise the quali-
ﬁcation of
members of
Assembly.
700 5 a e VICT. c. 12o.-ExEcU'r1vE COUNCIL.
[1842.
Her Majesty
empowered to
lengthen period
of residence of
electors.
Her Majesty
empowered to
restrain appro-
priation of
revenue.
Her Majesty
empowered to
direct elections
to be simul-
taneous.
elected to serve as a member of the said Assembly;
provided that no such qualiﬁcation shall be ﬁxed at
more than a net annual income, arising from any source
whatsoever, of one hundred pounds, or the possession of
property, clear of all incumbrances, exceeding ﬁve
hundred pounds in amount or value.
2, And be it enacted, That it shall be lawful for Her
Majesty, in manner aforesaid, to ﬁx and determine the
length of the period of residence within any electoral
district in the said island which shall be required in
addition to any other qualiﬁcation for voting at elections
within such district, or for being elected to serve as a
member of the Assembly; provided that such period
shall not extend beyond the period of two years next
preceding any such election.
3, And be it enacted, That it shall be lawful for Her
Majesty, in manner aforesaid, to restrain the said
Assembly from appropriating to the public service within
the said island any part of the public revenue thereof,
in cases where such services shall not have been
previously recommended, or such grants of money shall
not have been previously asked, by or on the behalf of
Her Majesty.
4-. And be it enacted, That it shall be lawful for Her
Majesty, in manner aforesaid, to restrain and prohibit
the election of members to serve in the said Assembly,
in different districts, on successive or different days,
and to require that all such elections shall be simul-
. taneous, and shall be completed within a time to be
Her Majesty
may appoint
an Executive
Council.
limited.
‘ 5. And be it enacted, That it shall be competent to
Her Majesty, in manner aforesaid, to establish an Exe-
cutive Council for advising the Governor of the said
island, apart and distinct from the Legislative Council
thereof.
1842.] 5 a 6 vIcT. 5. 120.—PREROGATIVE SAVED. 701
6. And be it enacted, That it shall be lawful for Her
Majesty, in manner aforesaid, to abolish the Legislative
Council of the said island as a distinct house or branch
of the Legislature thereof, and to authorize and empower
the members of the said Legislative Council to sit and
vote in the House of Assembly as members thereof, as
fully in all respects as the elected members of the said
House : Provided always, that the number of members
so to be authorized to sit and vote in the said House of
Assembly shall never be more than two-ﬁfths of the
whole number of the members of such House of Assem-
bly : Provided also, that it shall be competent to Her
Majesty again, in manner aforesaid, to re-establish the
Legislative Council as a separate House of the Legisla-
ture of the said island.
'7, And be it enacted, That any such future commis-
sion or instructions as aforesaid shall be laid before both
Houses of Parliament within thirty days next after the
date thereof, should Parliament then be in session, or if
not, then within thirty days next after the commence-
ment of the then next session of Parliament.
8, Provided always, and be it enacted, That no
change which shall be made in the constitution of the
said island under this Act shall continue for a longer
time than the ﬁrst day of September one thousand eight
hundred and forty-six, unless Parliament shall otherwise
order; but this enactment shall not be construed to
annul or aﬁect any laws, statutes, or ordinances made by
the Legislature of the said island as constituted under
the authority of this Act.
9, And be it declared and enacted, That nothing
herein contained shall extend or be construed to extend
to take away or diminish any right or prerogative vested
in Her Majesty of enlarging, as to Her Majesty shall
seem meet, any franchise heretofore granted by His late
Her Majesty
empowered to
abolish the
Council as a
distinct branch
of the Legisla-
ture ;
and to re-
establish it.
Future com-
missions to be
laid before
Parliament.
Change in
constitution
not to continue
beyond a limi-
ted time, unless
Parliament
shall otherwise
direct.
Act not to in-
terfere with
prerogative of
Her Majesty.
702 '7 a 8 vIo'r. c. 69.—AB.REST or FUGITIVES. [1844-
Majesty or hereafter to be granted by Her Majesty to
Her Majesty’s subjects in Newfoundland.
Ag tOA t 10, And be it enacted, That nothing herein-before
a cc 8 c _
2 8; 3 Will. 4- contained shall extend or be construed to extend to repeal
c. 8.
or alter the provisions of an Act passed in the third
year of the reign of His late Majesty King Willian the
Fourth, intitulec “ An Act to continue certain Acts
relating to the Island of Newfoundland, and to provide
for the Appropriation of all Duties which may hereafter
be raised within the said Island.”
Actmey be 11, And be it enacted, That this Act may be
amended, &c. . .
this session. amended or repealed by any Act to be passed during th1s
session of Parliament.
6 a 7 vrcr. (1848) c. 84.
Repealed by 44 8t 45 Vict. c. 69 s. 41.
This Act provided for the apprehension and sending
back oﬁenders escaping into the United Kingdom, or
nice oersii into the colonies. See 4A4 & 4L5 Vict. c. 69.
'7 8o 8 VICT. (1844) c. 12.
[See Copyright Acts, post]
7 a 8 VICT. (1844) c. 69.
Repealed as to certain words by S. L. R. Act,
1891, c. 67.
This Act enacted that it should be competent to Her
Majesty in Council to provide for the admission of
1849] 12 a 13 VIcT. c. 96.-—POWER or ADMIRALS. 703
appeals to herself in Council from any court within
any British colony or possession abroad. See ‘Appen-
dix B., Judicial Committee Acts.
10 a, 11 VICT. (1847) c. 95.
[See Copyright Acts, post]
12 a 13 VICT. (1849) c. 96.
Sec. 5 was, as regards the exception of the possessions
of the East India Company from the operation of the Act,
repealed by 23 85 244 Vict. c. 88. s. 1. Sec. 6 was re-
pealed by S. L. R. Act, 1878, All 85 442 Vict. c. 79. Sec. 5
from “ and the word ‘ Governor’ ” to the end of the
section, repealed by S. L. R. Act, 1.881, 444 & 445 Vict.
c. 59. Preamble, and sec. 1 to “ same tha ”; sec. 2;
sec. 3 to “ enacted, that,” and the word “that” before
“if any”; sec. ét to “enacted that”; see. 5 to “en-
acted, that,” repealed by S. L. R. Act, 1891, 54B & 55
Vict. c. 67.
This was “ An Act to provide for the Prosecution and
Trial in Her Majesty’s Colonies of Offences committed
within the Jurisdiction of the Admiralty.”
[1 Any. 1849.]
HEREAS by an Act passed in the eleventh year
of the reign of King William the Third, inti-
tuled “An Act for the more effectual suppression of 11Wi11-3-
Piracy,” it is enacted that all piracies, felonies, and rob- 0' 7'
beries committed on the sea or in any haven, river,
creek, or place where the admiral or admirals have power,
authority, or jurisdiction, may be examined, inquired of,
tried, heard, and determined and adjudged, in any
place at sea, or upon the land in any of His Majesty’s
islands, plantations, colonies, dominions, forts, or factories,
to be appointed for that purpose by the King’s commis-
704. 12 a 13 vIoT. c. 96.—CRIME ON THE SEA. [is-is.
46 Geo. 3.
c. 54.
sion, in the manner therein directed,1 and according to
the civil law and the method and rules of the Admiralty ;
and whereas by an Act passed in the forty-sixth year
of the reign of George the Third, intituled “ An Act
for the speedy Trial of Offences committed in distant
parts upon the Sea,” it is enacted, that all treasons, pira-
cies, felonies, robberies, murders, conspiracies, and other
offences of what nature or kind soever committed upon
the sea, or in any haven, river, creek, or place where
the admiral or admirals have power, authority, or juris-
diction, may be inquired of, tried, heard, determined and
adjudged, according to the common course of the laws
of this realm used for offences committed upon the
land within this realm, and not otherwise in any of his
Majesty’s islands, plantations, colonies, dominions, forts,
or factories, under and by virtue of the King’s commis-
sion or commissions under the great seal of Great
Britain to be directed to commissioners in the manner
and with the powers and authorities therein provided:
And. whereas it is expedient to make further and better,
provision for the apprehension, custody, and trial in Her
Majesty’s islands, plantations, colonies, dominions, forts,
and factories, of persons charged with the commission
1 Under 11 ‘Vill. 3. c. 7. (now
repealed as to the following by
S. L. R. Act, 1867) the king’s com-
mission, or a commission under the
great seal of England, or the seal
of the Admiralty of England, might
be directed to all or any of the
admirals, vice-admirals, rear-ad-
mirals, judges of vice-admiralties,
or commanders of any of Her
Majesty’s ships of war, and also to
all or any such person or persons,
officer or officers, by name, or for
the time being, which commissioners
were to have power jointly or
severally, by warrant under their
hand and seal, or any one of them,
to commit to safe custody any per-
son against whom imformation of
piracy, robbery, or felony upon the
sea shall be given upon oath (which
oath they‘or any one ‘of them were .
to have the full power and were
required to administer), and were
to call and assemble a court of ad-
mirally on shipboard or upon the
land, which court must consist of
seven persons at the least. That
any three of the aforesaid persons
(whereof the president, or chief of
some English factory, or the Go-
vernor, Lieutenant-Governor, or
member of His Majesty’s Council
in any of the plantations or colonies,
or the commander of one of Majesty’s ships was always to be
one) might call any person or per-
sons to make up the seven, the
persons qualiﬁed to sit being known
merchants, factors or planters, cap-
tains, lieutenants, or warrant otﬁcers
of His Majesty’s ships of war, or
captains, masters, and mates of some
English ship.
1849.] 12 a 13 Wei‘. 0. 96.—CRIME ON THE SEA. 705
of such offences upon the sea, or in any such haven,
river, creek, or place as aforesaid: Be it therefore
enacted by the Queen’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, That if
any person within any colony shall be charged with the
commission of any treason, piracy, felony, robbery,
murder, conspiracy, or other offence, of what nature or
kind soever, committed upon the sea or in any haven,
river, creek, or place where the admiral or admirals
have power, authority, or jurisdiction, or if any person
charged with the commission of any such offence upon
the sea, or in any such haven, river, creek, or place,
shall be brought for trial to any colony, then, and in
every such case, all magistrates, justices of the peace,
public prosecutors, juries, judges, courts, public officers
and other persons in such colony, shall have and exercise
the same jurisdiction and authorities for inquiring of,
trying, hearing, determining and adj udging such oiiences,
and they are hereby respectively authorized, empowered
and required to institute and carry on all such pro-
ceedings for the bringing of such persons so charged as
aforesaid to trial, and for and auxiliary to and conse-
quent upon the trial of any such person for any such
offence wherewith he may be charged as aforesaid, as by
the law of such colony would and ought to have been
had and exercised or instituted and carried on by them
respectively, if such oiience had been committed and
such ‘person had been charged with having committed
the same upon any waters situated within the limits
of any such colony, and Within the limits of the local
jurisdiction of the courts of criminal justice of such
colony.
2, Provided always, and be it enacted, That if any
person shall be convicted before any such court of any
such offence, such person so convicted shall be subject
All persons
charged in any
colony with
oﬁ'ences com-
mitted on the
sea may be
dealt with in
the same
manner as if
the offences had
been committed
on waters
within the
local jurisdic-
tion of the
courts of the
colony.
Persons con-
victed of such
offences shall
suffer the like
punishments
and liable to, and shall suffer all such and the same as in England‘
S .2340. Y Y
706 12 a 18 VICT. c. 96.—SEA & LOCAL JURISDIC. [1849.
pains, penalties, and forfeitures as by any law or laws
now in force, persons convicted of the same respectively
would be subject and liable to, in case such offence had
been committed and were inquired of, tried, heard,
determined, and adjudged in England, any law, statute,
or usage to the contrary notwithstanding.
flrgziignoior 3, And be it enacted, That where any person shall
murder and die in any colony of any stroke, poisoning, or hurt, such
33253215?“ person having been feloniously stricken, poisoned, or
31331155151 the hurt upon the sea, or in any haven, river, creek, or
ﬁﬁioggafr 11PM1 place where the admiral or admirals have power, autho-
rity, or jurisdiction, or at any place out of such colony,
every offence committed in respect of any such case,
whether the same shall amount to the offence of murder
or of manslaughter, or of being accessory before the
fact to murder, or after the fact to murder or man-
slaughter, may be dealt with, inquired of, tried, deter-
mined, and punished in such colony in the same manner
in all respects as if such offence had been wholly com-
mitted in that colony; and that if any person in any
colony shall be charged with any such offence as afore-
said in respect of the death of any person who, having
been feloniously stricken, poisoned, or otherwise hurt,
shall have died of such stroke, poisoning, or hurt upon
the sea, or in any haven, river, creek, or place where the
‘admiral or admirals have power, authority, or juris-
diction, such offence shall be held for the purpose of
this Act to have been wholly committed upon the sea.
Jurisdiction of By sec. 44 it was provided that nothing in the Act
the Supreme
Court of New should in any way abridge the jurisdiction of the Su-
South Wales .
preserved preme Court of New South Wales and Van Dlemen’s
9960-4' °' 83'? Land as established by 9 G60. 4. 0. 83-
gfittzrrrglgteiion 5. And be it enacted, That for the purposes of this
' Act the word “colony ” shall mean any island, planta-
tion, colony, dominion, fort, or factory of Her Majesty,
except any island within the United Kingdom, and the
1851.] 14 a 15 VICT. c. 63.—BOUNDARIES or CAN. &. N. B. 707
islands of Elan, Guernsey, Jersey, Alderney, and Saris,
and the islands adjacent thereto respectively, and except
also all parts and places as are under the government of
the East India Company [see above], and the word
“ Governor” shall mean the oﬁicer for the time being
administering the government of any colony.
Sec. 6 only contained a power to amend the Act.
14 a 15 vror. (1851) 5. 63.
Preamble and to “ as follows” repealed by S. L. R.
Act, 1892. Explained by 20 & 21 Vict. c. 34. post.
An Act for the Settlement of the Boundaries
between the Provinces of Canada and New
Brunswick. [7 Aug. 1851.]
' HEREAS certain disputes have existed respecting
the boundary line between the provinces of
Canada and New Brunswick in North America ; and
pending such disputes certain funds have arisen from
the disputed territory, and have been received by the
Governments of such provinces respectively: And
whereas, with a view to the settlement of such disputes,
the Governor-General of Canada and the Lieutenant-
_ Governor of New Brunswick, by the advice of their
respective Councils, agreed that the matter in dispute
should be referred to arbitrators, who should be directed
to report to Her Majesty’s Government, and that such
Governor-General and Lieutenant-Governor should each
name an arbitrator on behalf of the said respective
provinces, and that such arbitrators should name a third
arbitrator, the award to be made by the three arbitrators
or any two of them; and it was also agreed by such
Governor-General and Lieutenant-Governor, with the
advice aforesaid, that the net proceeds of the funds in
the hands of the said Governments arising from the
disputed territory should be applied, ﬁrst, to defray the
expenses of the arbitration, second, to defray the no-
cessary expenses of running the (boundary) line as
Act may be
amended.
Y Y 2
708 14. a 15 vIeT. c. 63.—FIXING BOUNDARIES. [1851.
Appointment
of arbitrators
between
Canada and
New Bruns-
wick.
Award of Dr.
Lushington
and Dr. Twiss,
17th April
1851.
settled, (in case such funds should prove insufficient,
the expenses to be borne equally by the respective
Governments,) and, third, the balance of such funds to
the improvement of the land and water commimication
between the great falls of the Saint John and the Saint
Lawrence: And whereas, in pursuance of the agreement
in this behalf, the Governor-General of Canada named
Thomas Falconer, Esquire, to be one of the said arbi-
trators, and the Lieutenant-Governor of New Brunswick
named Travers Twiss, Doctor of Laws, to be another
of the said arbitrators, and the said Thomas Falconer
and Travers Twiss named the Right Honourable
Stephen Lushington, Judge of the Admiralty Court,
to act as the third arbitrator: And whereas on the
seventeenth day of April, one thousand eight hundred
and ﬁfty-one, the said Stephen Lushington and Travers
Twiss made an award concerning the said boundary,
and transmitted the same, together with a plan therein
referred to, to the Right Honourable Earl Grey, one of
Her Majesty’s principal Secretaries of State, and such
award is in the following terms :
“ That New Brunswick shall be bounded on the west
by the boundary of the United States, as traced by
the Commissioners of Boundary under the Treaty of
Washington dated August 1842, from the source of the
Saint Croix to a point near the outlet of Lake Pech-la-
wee-kaa-co-nies or Lake Beau, marked A. in the accom-
panying copy of a part of plan 17 of the survey of the
boundary under the [above treaty; thence by a straight
line connecting that point with another point to be
determined at the distance of one mile due south from
the southernmost point of Long Lake; thence by a
straight line drawn to the southernmost point of the
ﬁefs Madawaska and Temiscouata, and along the south-
eastern boundary of those ﬁefs to the south-east angle
of the same; thence by a meridional line northwards
till it meets a line running east and west, and tangent
to the height of land dividing the waters flowing into
the River Rimouski from those tributary to the Saint
1851.] 14 & 15 VICT. c. 63.--BOUNDARY LANDS.
709
John; thence along this tangent line eastward until it
meets another meridional line tangent to the height of
land dividing waters ﬂowing into the River Bimouski
from those ﬂowing into the Restigouche River; thence
along this meridional line to the 418th parallel of
latitude; thence along that parallel to the Mistouche
River; and thence down the centre of the stream of
that river to the Restigouche; thence down the centre
of the stream of the Restigouche to its mouth in the
Bay of Chaleurs; and thence through the middle of
that Bay to the gulf of the Saint Lawrence ; the islands
in the said rivers Mistouche and Restigouche to the
mouth of the latter river at Dalhousie being given to
New Brunswick ”: And whereas it is expedient that
the said boundary should be settled in conformity with
the said award: now, therefore, be it enacted by the
Queen’s most Excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by
the authority of the same, as follows :
1. New Brunswick shall be bounded as in the said
award mentioned ; and it shall be lawful for one of Her
Majesty’s principal Secretaries of State to appoint such
person or persons as he may think ﬁt to ascertain, deﬁne,
and mark the boundary line between the said province
of New Brunswick and the said province of Canada,
according to the intent of the said award.
2, The net proceeds of the funds in the hands of the
local governments of the said provinces of Canada and
New Brunswick respectively arising from the territory
heretofore in dispute between such provinces shall be
applied according to the terms herein-before mentioned
of the said agreement concerning the same.JL
1 Held that the whole Bay of
Chaleurs is within the boundaries
of the provinces of Quebec and New
Brunswick, and within the Do-
minion of Canada, and. the opera-
tions of the Fisheries Act, 31 Vict.
(Dom) c. 60., although the offence
complained of—(lrifting for sal-
mon—took place more than three
miles from either shore. See
Mowat v. McFee, 5 S. C. R. 66;
19 S. C. N. B. (3 P. & B.) 252.
The line de—
scribed in the
award to be
the boundary,
and to be set
out accord-
ingly.
The funds
accrued from
the disputed
territory to
be applied
according to
the agreement.
710 18 a 17 VICT. c. 21.-owner RESERVES. [1853.
3 & 4 Vict.
c. 78.
Power to the
Legislature of
Canada to alter
the appropria-
tion of the
Clergy Re -
serves and the
proceeds
thereof, and to
make such
other pro- .
visions as shall
seem meet.
18 a. 17 vro'r. (1853) c. 21.
An Act to authorize the Legislature of the Pro-
vince of Canada to make Provision concerning
the Clergy Reserves in that Province, and the
Proceeds thereof. [9 M ay 1853.]
[See 3 & 4 Vict. c. 78.]
“ ' HEREAS the Act of the session of Parliament
holden in the third and fourth years of Her
Majesty, chapter seventy-eight, provides for the sale of
the lands called Clergy Reserves in the province of
Canada, and for the distribution of the proceeds thereof ;
and it is expedient that the Legislature of the said pro-
vince should be enabled to make further provisions in
relation to such Reserves and proceeds :” Be it enacted
by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Tem-
poral, and Commons, in this present Parliament assem-
bled, and by the authority of the same, as follows:
1, It shall be lawful for the Legislature of the
province of Canada, from time to time, by any Act or
Acts to be for that purpose made and enacted in the
manner and subject to the conditions required by the
Act of the said session of Parliament holden in the third
and fourth years of Her Majesty, chapter thirty-ﬁve,
sections thirty-seven, thirty-eight, and thirty-nine, in
respect of Acts made and enacted by such Legislature,
to vary or repeal all or any of the provisions of the said
ﬁrst-mentioned Act of Parliament for or concerning the
sale, alienation, and disposal of the said Clergy Reserves,
and for or concerning the investment of the proceeds
of all sales then made or thereafter to be made of such
reserves, and for or concerning the appropriation and
application of such proceeds and investments, and the
interest and dividends thereof, the interest accruing on
sales on credit of such reserves, the rent of such reserves
for the time being unsold, and all other the proﬁts of or
1854.] 17 & 18 VICT. e. 118.—ALTERING CONSTITUTN. 711
accruing from such reserves, and (notwithstanding the
said ﬁrst-mentioned Act of Parliament) to make such
other provisions for or concerning the sale, alienation,
or disposal of the said Clergy Reserves and such in-
vestments as aforesaid, and for or concerning the
appropriation and application of such Clergy Reserves,
proceeds, investments, interest, dividends, rents, and
proﬁts, as to the said Legislature may seem meet.
2. Provided, That it shall not be lawful for the said
Legislature, by any Act or Acts thereof as aforesaid, to
annul, suspend, or reduce any of the annual stipends or
allowances which have been already assigned and given
to the clergy of the Churches of England and Scotland,
or to any other religious bodies or denominations of
Christians, in Canada, (and to which the faith of
the Crown is pledged,) during the natural lives or
incumbencies of the parties now receiving the same,
to appropriate or apply to any other purposes such part
of the said proceeds, investments, interest, dividends,
rents, and proﬁts as may be required to provide for the
payment of such stipends and allowances during such
lives and incumbencies.
17 a 18 vrcr. (1854) 0.118.
[See B. N. A. Act, 1867 , which apparently repeals
this Act]
A11 Act to empower the Legislature of Canada to alter
the Constitution of the Legislative Council for that
Province, and for other Purposes. [11 Aug. 1854.]
“‘ , THEREAS an Act of the session of Parliament holden in the
WW third and fourth years of Her Majesty, chapter thirty-ﬁve,
‘ to reunite the provinces of Upper and Lower Canada, and for the Go-
vcrment of Canada,’ provides amongst other things for the establish-
ment of a Legislative Council in the province of Canada, consisting of
members summoned thereto by the Governor, under the authority of Her
Majesty as therein speciﬁed : And whereas it is expedient that the Legis-
lature of the said province should be empowered to alter the constitution
of the said Legislative Council: And whereas the said Act requires
amendment in other respect: ” Be it enacted by the ‘Queen’s most Excel-
lent Majesty, by and with the advice and consent of the Lords Spiritual
The said Legis-
lature not
authorized to
interfere with
existing in-
terests.
or'
712 17 a 18 VIC-T. c. 118.—-P()WER TO ALTER ACTS. [1854.
Power to the
Legislature
of Canada to
alter the con-
stitution of the
Legislative
Council.
Provisions of
former Acts of
Parliament to
apply to the
new Legislative
Council.
Power to the
Legislature of
Canada to vary
the provisions
of the Act or
Acts consti-
tuting the new
Legislative
Council ;
and to vary,
&c. the pro-
perty qualiﬁ-
cation of mem-
bers of Assem-
bly.
Proviso in
Section 26 of
3 & 4 Vict.
c. 35. repealed.
and Temporal, and Commons, in this present Parliament assembled, and
by the authority of the same, as follows :
1, It shall be lawful for the Legislature of Canada by any Act or Acts
to be hereafter for that purpose passed, to alter the manner of composing
the Legislative Council of the said province, and to make it consist of
such number of members appointed or to be appointed or elected by such
persons and in such manner as to the said Legislature may seem ﬁt, and
to ﬁx the qualiﬁcations of the persons capable of being so appointed or
elected, and by such Act or Acts to make provision, if they shall think
ﬁt, for the separate dissolution by the Governor of the said Legislative
Council and Legislative Assembly respectively, and for the purposes
aforesaid to vary and repeal in such manner as to them may seem ﬁt all
or any of the sections and provisions of the said recited Act, and of any
other Act of Parliament now in force which relate to the constitution of
the Legislative Council of Canada : Provided always, that any Bill or
Bills which shall be passed by the present Legislative Council and Assembly
of Canada for all or any of the purposes aforesaid shall be reserved by
the said Governor, unless he think ﬁt to withhold Her Majesty’s assent
thereto, for the signification of Her Majesty’s pleasure, and shall be
subject to the enactments of the said recited Act of the third and fourth
years of Her Majesty, chapter thirty-five, section thirty-nine, which relate
to Bills so reserved for the signiﬁcation of Her Majesty’s pleasure.
2, As soon as the constitution of the Legislative Council of the pro-
vince of Canada shall have been altered under such Act or Acts so
assented to by Her Majesty as aforesaid, all provisions of the said recited
Act of Parliament of the third and fourth years of Her Majesty, chapter
thirty-ﬁve, and of any other Act of Parliament now in force relating to
the Legislative Council of Canada shall be held to apply to the Legisla-
tive Council so altered, except so far as such provisions may have been
varied or repealed by such Act or Acts of the Legislature of Canada so
assented to as aforesaid.
3, It shall be lawful for the Legislature of Canada from time to time
to vary and repeal all or any of the provisions of the Act or Acts altering
the constitution of the said Legislative Council: Provided always, that
any Bill for any such purpose which shall vary the qualiﬁcation of
_ councillors, or the duration of oﬁice of such councillors, or the power of
the Governor to dissolve the Council or Assembly, shall be reserved
by the Governor for the signiﬁcation of Her Majesty’s pleasure in manner
aforesaid.
4, It shall be lawful for the Legislature of Canada by any Act or
Acts reserved for the signiﬁcation of Her Majesty’s pleasure, and whereto
Her Majesty shall have assented as herein-before provided, to vary or
repeal any of the provisions of the recited Act of Parliament of the third
and fourth years of Her Majesty which relate to the property qualiﬁ-
cation of members of the Legislative Assembly.
5, So much of the twenty-sixth section of the said recited Act of Parlia-
ment as provides that it shall not be lawful to present to the Governor of
the province of Canada for Her Majesty’s assent any Bill of the Legis-
lative Council and Assembly of the said province by which the number
of representatives in the Legislative Assembly may be altered unless the
second and third reading of such Bill in the Legislative Council and the
Legislative Assembly shall have been passed with the concurrence of
two-thirds of the members for the time being of the said Legislative
Council, and of two-thirds of the members for the time being of the said
1856.] 19 a 20 VIGT. <1. 23.—CANADA COMPANY ACT. 713
Legislative Assembly respectively, and that the assent of Her Majesty
shall not be given to any such Bill unless addresses shall have been
presented by the Legislative Council and the Legislative Assembly respec-
tively to the Governor stating that such Bill has been so passed, is hereby
repealed.
6, The forty-second section of the said recited Act of Parliament,
providing that in certain cases Bills of the Legislative Council and
Section 42 of
3 85 4 Vict.
Assembly of Canada shall be laid before both Houses of Parliament of c‘ 35‘ repealed‘
the United Kingdom, is hereby repealed; and, notwithstanding any-
thing in the said Act of Parliament or in any other Act of Parliament
contained, it shall be lawful for the Governor to declare that he assents
in Her Majesty’s name to any Bill of the Legislature of Canada, or
for Her Majesty to assent to any such Bill if reserved for the signiﬁca-
tion of her pleasure thereon, although such Bill shall not have been laid
before the said Houses of Parliament; and no Act heretofore passed or
to be passed by the Legislature of Canada shall be held invalid or
ineffectual by reason of the same not having been laid before the said
Houses, or by reason of the Legislative Council and Assembly not having
presented to the Governor such address as by the said Act of Parlia-
ment is required.
'7, That in this Act the word “ Governor” is to be understood as
comprehending the Governor, and in his absence the Lieutenant-Go-
vernor, or person authorized to execute the oﬁice or the functions of the
Governor of Canada.
is a 19 vIcT. (1855) c. 91.
Sec. 16 amended by 25 & 26 Vict. c. 63. s. 22. Sec. 13
repealed by 341 & 35 Vict. c. 110. s. 12. Sec. 14 amended
by 85 & 36 Vict. c. 73. s. 3, and as regards a few words
by S. L. R. Act, 1892, c. 19.
An Act to facilitate the erection and maintenance
of Colonial Lighthouses, and otherwise to
amend the Merchant Shipping Act, 1854.
[14th Aug. 1855.]
This Act was repealed and embodied in the Merchant
Shipping Act, 1894:‘, 57 & 5S Vict. c. 60. As to
colonial lighthouses, see ss. 670 to 675 inclusive. [See
post]
19 & 20 VICT. (1856) c. 23.
An Act for granting certain Additional Powers and
Authorities to the Canada Company.
[23rd June 1856.]
“ HEREAS by an Act of Parliament passed in the sixth year of
the reign of his late Majesty King George the Fourth, intituled,
‘ An Act to enable His Majesty to grant to a Company, to be incorporated
by Charter, to be called “ The Canada Company,” certain Lands in the
Interpretation
of terms.
6 G. 4. c. 75.
714 10 a 20 VICT. c. 23.—CHARTER on em. cc. [1856.
Charter, dated
19 August.
(7 G. 4.)
Province of Upper Canada, and to invest the said Company with certain
Powers and Privileges, and for other Purposes relating thereto,’ it was
enacted that in case his then Majesty should, within three years after the
passing of the Act now being recited, be pleased, by charter of incorpora-
tion under the great seal of Great Britain and Ireland, to declare and grant
that such and so many persons as should be named therein, and all and
every such other person or persons as from time to time should be duly
admitted members into their corporation, should be a body politic and cor—
porate by the name of ‘ The Canada Company,’ and to declare that the
said corporation so to be made and created should be established for the
purpose in the said Act mentioned, and for such other lawful purposes
as to His Majesty might seem meet, then and in that case His Majesty
should be authorized to grant to the said corporation certain lands therein
mentioned, and the said corporation should have certain powers and
privileges therein speciﬁed: And whereas by letters patent under the
great seal of Great Britain and Ireland, hearing date at W'estminster
on the nineteenth day of August in the seventh year of the reign of his
late Majesty King George the Fourth, and in all respects in accordance
with the said Act, his said Majesty was pleased to grant and declare that
certain persons in such charter named, together with such and so many
other person or persons, bodies politic or corporate, as had become or
should at any time thereafter become subscribers or shareholders of or
for the capital stock thereinafter mentioned, in manner thereinafter pro-
vided, and their respective successors, executors, administrators, and
assigns, should be one body politic and corporate by the name of ‘The
Canada Company,’ and by that name should have perpetual succession
and a common seal; and by the said charter it was declared, that the
said corporation was established for the purpose of purchasing, holding,
improving, clearing, settling, and disposing of waste and other lands in
the province of ([oper Canada, and for making advances of capital to
settlers on such lands, for the opening, making, improving, and main-
taining roads and other internal communications, for the beneﬁt thereof,
and for promoting the cultivation of such articles as could advantageously
be exported from the said province, and for the other purposes therein-
after mentioned, and that the present capital or joint stock of the said
company to be used and applied in establishing and carrying on the said
undertaking and for the purposes aforesaid should be a sum of not ex-
ceeding one million pounds sterling, to be raised in shares of one hundred
pounds each ; and in the said charter provision was made and power given
for the transfer and sale of shares in the company, and for making calls
thereon, and also for holding general courts and special general courts of
the proprietors of the said company, and for electing or appointing from
time to time a governor, deputy governor, and directors and other officers
of the said company, and for managing and directing the affairs of the
company, and, if necessary, for raising additional capital ; and it was by
such charter declared, that all sums of money paid and received in re-
spect of the shares of the said company, together with all acquisitions or
investments whatsoever, whether real or personal, whether vested in the
said company in their own name or in the names of trustees, or in what
manner soever the same should be vested, should form and constitute the
joint or capital stock of the said company and their successors for ever,
and should be liable and answerable for the debts, liabilities, and engage-
ments of the said company; and further, that it should be lawful for the
said company, not only to purchase, take, hold, sell, let, and dispose of
all such lands in the provinces of Upper Canada and Lower Canada as
aforesaid, and more especially any such lands as should be granted by
his Majesty in virtue of his Royal prerogative or by the authority of
1856.] 19 & 2ov1c'r. 5. 23.—CHARTER or can. co. 715
Parliament, but also to contract for, bargain, purchase, and export all
such merchandises, matters, and things as might be necessary or con-
venient for the cultivation, clearing, or improvement of the lands which
might be purchased by the said company, and should also be empowered
to import and receive, and to sell and dispose of, all goods and mer-
chandise which might be consigned or remitted to them from such their
lands in payment or satisfaction of any rent or purchase money arising
from the occupation or sale of any such lands, and to receive and nego-
tiate in England bills of exchange, promissory notes, or other negotiable
securities for money, which might be remitted to them on account of any
such rent or purchase money, and also to purchase, take, hold, sell, and
dispose of all lands, tenements, and hereditaments situate in Great
Britain and Ireland or in the provinces of Upper Canada and Lower
Canada, or elsewhere in His Majesty’s dominions, which it might be
necessary or convenient for the said company to acquire, in order to the
carrying the purposes of such charter into more complete effect; and
further, that interest, calculated to the tenth day of July one thousand
eight hundred and twenty-six, should, within one month from the date
of the said charter, be payable to the members of the said company, at
and after the rate of four per centum per annum, from the respective
periods at which the deposit and subsequent calls (if any) on their shares
should have been paid, to be calculated upon and in respect of such de—
posit and calls, and on the tenth day of January and tenth day of July
one thousand eight hundred and twenty-seven, and on each and every
tenth day of January and tenth day of July until and ending with the
tenth day of January one thousand eight hundred and thirty-one, further
interest at the like rate should be calculated and become payable to the
said members upon the said deposit and upon the amount of the several
calls which should have been made upon and paid by them, and from
and after the tenth day of January in the year one thousand eight hundred
and thirty-one it should be lawful to and for the court of proprietors,
twice in every year, in the said months of June and December, if the
state of the affairs of the said company should warrant the same, to de-
clare such dividend to and amongst the members of the said company for
the half-year ending on the tenth day of July and the tenth day of
January next succeeding such respective general court as to the said
court of proprietors should appear proper, in addition to such payment
of interest as aforesaid; and that in declaring such dividends respectively
due regard should be had to all the debts and engagements of the said
company, and the risks and contingencies aﬁecting their assets and
securities, and so as no dividend or interest after the said tenth day of
January one thousand eight hundred and thirty-one should be in any
case paid out of the capital of the said company, or otherwise than as
a division of the whole or part of the gains and proﬁts of the said com-
pany: And whereas an Act of Parliament was passed in the ninth year
of the reign of his said late Majesty King George the Fourth, intituled
‘ An Act to alter and amend an Act for enabling His Majesty to grant
to a Company to be incorporated by Charter, to be called the Canada
Company, certain Lands in the Province of Upper Canada,’ and thereby
certain additional powers were given to the said company: And whereas
the sum of thirty-two pounds ten shillings per share has been paid up on
each share, and the paid-up capital of the said company now consists of
the sum of two hundred and eighty-nine thousand seven hundred and
thirty-seven pounds ten shillings, divided into eight thousand nine hun-
dred and ﬁfteen shares: And whereas lands in the province of Upper
Canada to the extent of two millions four hundred and eighty-four
thousand four hundred and thirteen acres were purchased by the com-
9 G. 4. c. 61.
716 19 a 20 VIOT. c. 23.-cAN. eoY. POWERS. [1856.
Short Title.
For ascertain-
ing what shall
be deemed to
be the capital.
For ascertain-
ing what shall
be deemed pro-
ﬁts of the com-
pany.
No further
part of capital
to be called up.
pany, who expended large sums in improving the same, and a consider-
able portion of such lands have been sold at prices considerably exceeding
the moneys expended in purchasing and improving the same, but the
value of the unsold portion of such lands very far exceeds the amount of
the paid-up capital of the company, and of all the liabilities of the com~
pany, and the company hold mortgages and other securities for lands
sold or contracted to be‘ sold, and for other moneys owing to them, and
other securities for money: And whereas doubts have arisen whether
the company can divide as proﬁt the whole of the moneys arising from
the sale of lands in which the moneys of the company have been invested,
and it is desirable that such doubts should be removed, and that such
additional powers as after mentioned should be given to the company:
And whereas it is not in the contemplation of the company to purchase
additional land: And whereas such objects and purposes as aforesaid
cannot be effectually carried into elfect without the authority of Parlia-
ment : ” May it therefore please your Majesty that it may be enacted ;
and be it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords spiritual and temporal, and Com-
mons, in this present Parliament assembled, and by the authority of the
same, as follows; (that is to say),
1, In citing this Act for any purpose whatsoever it shall suﬂice to use
the expression, “The Canada Company’s Amendment Act, 1856.”
2, For the purpose of ascertaining the funds applicable to be divided
among the proprietors of the company as and by way of dividend, under
the provisions of the said charter of incorporation, it shall be lawful for
the court of directors of the said company from time to time to set apart
or reserve such part or parts of the lands of the said company, whether
contracted to be sold or not, and such part or parts of the mortgages and
other securities for money for the time being held by the said company,
as they in their judgment shall deem to be suﬁicient, having regard to
the value of the said lands, mortgages, and other securities, to be ascer-
tained by such estimates or valuations as to the said court of directors
shall be satisfactory, to answer the said sum of two hundred and eighty-
nine thousand seven hundred and thirty-seven pounds ten shillings, and
from time to time to alter and vary the lands, mortgages, and securities,
so set apart, for others, and without prejudice to the right of the com-
pany to realize and sell the same or any part thereof, and the land,
mortgages, and other securities, for the time being remaining so set apart
and reserved, and the proceeds thereof, shall for the purposes aforesaid
be deemed to be and to represent the capital of the company.
3, All moneys to arise from the annual rents and proﬁts of the lands,
and from the interest and proﬁts of the mortgages and other securities
of the company, including the lands, mortgages, and securities, for the
time being so set apart and reserved, and all the moneys to arise and be
received by sale or otherwise for and in respect of all other the lands,
property, and eﬁects of the company, other than and except what under
the provisions of this Act shall for the time being be set apart as repre-
senting the capital of the company, shall for all intents and purposes be
treated as gains and proﬁts of the company, and, after deducting and re-
taining thereout so much as may be necessary to meet the debts and
liabilities of the company, the residue thereof shall be applicable towards
payment of interest on the paid-up capital of the company, and the
dividends from time to time to be declared on the shares therein.
4;, It shall not be lawful for the directors to call up any further part
of the subscribed capital of the company.
1856.] 19 a 20 vic'r. c. 23.—CAN. coY. PROFITS. 717
5, It shall be lawful for the proprietors of the company, at a special Power to wind
general court called for the purpose, by a resolution to be passed by a 11P and dissolve
majority of votes given at such court by proprietors duly qualiﬁed to the Company‘
vote, and according to the number of shares held by them respectively,
in accordance with the provisions of the said charter, to direct that the
affairs of the said company shall be wound up, and that the company
shall be dissolved, which resolution shall be submitted to the proprietors
at a subsequent special general court to be also specially called for the
purpose, and held at an interval of not less than one calendar month nor
more than two calendar months from the special general court at which
the resolution shall have passed; and such second special general court
shall, if required by any nine proprietors present thereat, be adjourned
to a time and place to be then appointed by the chairman, for the pur-
pose only of taking the votes of the proprietors on such resolution; and
in case the said resolution shall be conﬁrmed by a majority of the votes
given at such second special general court or adjourned general court, as the
case may be, by proprietors duly qualiﬁed as aforesaid, the directors of
the company shall with all convenient speed pay and discharge all debts
and liabilities of the company, and sell and convert into money the land
and other property of the company then remaining undisposed of, and
from time to time distribute the moneys arising from such sales and con-
version, and the other moneys from time to time in their hands, amongst
the shareholders of the company, either by way of interest and divi—
dends, or by way of return of capital, according as the property from
which such moneys shall have arisen ought to be treated as gains and
proﬁts or capital of the company.
6, Notwithstanding such resolution for winding up the affairs of the Powers of the
company shall have been passed at such two general courts as aforesaid, Company to ,
the company shall remain incorporated; and all and every the powers Elonttnue ‘tum
. . . j . . . _ 1e same is
and authorities which by this Act and the said recited Acts, or any of Wound up.
them, or by the said charter, are given to the company, or to the direc-
tors or other officers thereof, or to the general courts or special general
courts of proprietors of the company, shall, subject to the restrictions
contained in this Act, remain in full force, and the shares in the said
company shall continue transferable, and interest and dividends shall be
payable, and the directors and other officers of the company shall con-
tinue to be appointed, until the passing such resolution as after men-
tioned.
'1, In case any resolution for winding 11p the affairs of the company Directors to
shall be passed at such two general courts as aforesaid, then and in that render ﬁnal
case, when and so soon as all the debts and liabilities of the company baht“? Shim
. . ‘ of liquidation.
shall have been paid and satisﬁed, and all the assets thereof shall have
been realized, and divided amongst the shareholders in the company, the
directors shall make outa ﬁnal balance sheet of the affairs of the company,
andsubmit the same for the approval of a general court of proprietors
specially called for the purpose of considering and approving such
balance sheet, and for authorizing the ﬁnal dissolution of the company;
and if such general court shall, by a resolution passed thereat by a
majority of votes given in accordance with the provisions of the said
charter, approve of the said balance sheet, and authorize the ﬁnal dis-
solution of the company, the company shall as on the day after the pass-
ing of such resolution be dissolved.
8, This Act shall extend to and be in force in the said provinces Public Act,
of Upper Canada and Lower Canada, as well as in the United King-
718 20 a 21 vrcr'o. 34.—--CAN. & N. B. BOUNDARY. [1887.
Expenses of
Act.
14 & l5 Vict.
c. 63.
(10111 of Great Britain and Ireland, and shall be judicially taken notice
of as such by all judges, justices, and others, in the said provinces as
well as in the United Kingdom aforesaid, without being specially
pleaded.
9, The costs, charges, and expenses of and incident to the obtaining
and passing of this Act shall be paid by the company.
20 a 21 vror. (1857) c. 84.
Preamble and to “of the same,” and in sec. 1 the
word “ That,” repealed byv S. L. R. Act, 1892, 55 & 56
Vict. c. 19. [See 14: 8t 15 Vict. c. 63. ante]
An Act to explain an Act for the Settlement of
Boundaries between the Provinces of Canada
and New Brunswick. [10th Aug. 1857.]
“ WHEREAS by an Act passed in the ﬁfteenth year
of the reign of Her Majesty, intituled ‘ An Act
for the Settlement of the Boundaries of the Provinces of
Canada and New Brunswick,’ it is provided that New
Brunswick shall be bounded as is mentioned in a
certain award made by Stephen Lushington, judge of
the Admiralty Court, and Travers Twiss, Doctor of Laws,
which award, as recited in the said Act, declares (among
other things) that New Brunswick shall be bounded from
a meridional line therein described along the forty-
eighth parallel of latitude ‘ to the Mistouche River, and
thence down the centre of that stream to the Restigouche,
the islands in the said river Mistouche and Restigouche
to the mouth of the latter river at Dalhousie being
given to New Brunswick ’: And whereas certain doubts
have arisen respecting the true meaning of the said
award in the parts above recited :” Be it therefore
enacted by the Queen’s most Excellent Majesty, by and
with the advice and consent of the Lords Spiritual and
Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same:
1857.] 20 a 21 VICT. c. 39.—C()L. ATTYS. & ENGLAND. 719
1. That the river named in the said award the “ River
Mistouche ” shall be taken to be the stream which
crosses the forty-eighth parallel of latitude, and from
thence ﬂows into the Restigouche, and which stream is
otherwise called the “ Patapedia.”
20 a 21 VICT. (1857) 5. 39.
See. 4 amended by 37 & 38 Vict. c. 41. The Act was
extended by 417 85 418 Vict. c. 241. Sec. 5 in part (as to
certain words) repealed by 51 and 52 Vict. c. 65. s. 20.
Preamble and to “ as follows” ; sec. 3, from “ and en-
rolled,” where those words last occur, to “England
and,” and the words “ of Chancery”; sec. 4.4, the words
“ attorney or,” where they ﬁrst occur; sec. 5, the words
“to act as,” where they ﬁrst occur; see. 6, the words
“ an attorney or,” “ attornies or,” and “ as the case may
be” ; sec. 7, the words “ attornies or,” repealed by
S. L. R. Act, 1892, 55 and 56 Vict. c. 19.
An Act to Regulate the Admission of Attornies and
Solicitors of Colonial Courts in Her Majesty’s Superior
Courts of Law and Equity in England in certain cases.
W THEREAS in certain of Her Majesty’s colonies and dependen-
' cies, including certain parts of the territories under the govern-
ment of the East India Company, the system of jurisprudence is founded
011 or assimilated to that administered in England, and the attornies and
solicitors of the superior courts of law and equity in England are ad-
mitted as attornies and solicitors in the courts of law and equity of such
colonies and dependencies, on production of their certiﬁcates of admission
in the English courts aforesaid; and it is considered just and expedient
to afford facilities to the attornies and solicitors of the superior courts
in certain colonies and dependencies for obtaining admission in Her
Majesty’s courts of law and equity in England. Be it therefore enacted,
&c., as follows :—
By sec. 1, the Act was to be cited as “The Colonial Attornies’
Relief Act.”
By sec. 2, the Act was not to come into operation in any colony or
dependency until an Order in Council.
By sec. 3, all persons who, being subjects of the British Crown,
have been or shall hereafter be duly admitted and enrolled as attornies
and solicitors in the superior courts of law and equity in those of Her
Majesty’s colonies or dependencies where the system of jurisprudence is
founded on or assimilated to the common law and principles of equity as
5: River
Mistouche”
deﬁned.
720 20 a 21 VIOT. c. 39.--THE BAR IN CANADA. [1857.
administered in England, and where full service under articles of clerk-
ship to an attorney-at-law for the space of ﬁve years at least, and an
examination to test the qualiﬁcation of candidates, are or may be re-
quired previous to such admission. save only the case of persons pre-
viously admitted as attornies or solicitors in the superior courts, &c., in
England, such colonies or dependencies to be from time to time speciﬁed
in and by Order in Council, as after provided, shall and may be admitted
and enrolled attornies in the courts in England, and solicitors in the
High Court of Chancery in England, subject as after provided.
By sec. 4 [see 37 and 38 Vict. c. 41.], no person was to be deemed
qualiﬁed to be admitted as attorney or solicitor under the provisions of
this Act unless he should pass an examination, and should produce of
such examination a certiﬁcate from the presiding judge of the superior
court of common law in the colony or dependency where such person
had been admitted an attorney and solicitor, and stating the amount of the
stamps which had been paid by such person on his articles of clerkship
and admission to practise in such colony, &c., in the form as contained
in a schedule to the Act; and should further make an aﬁidavit in such
manner as provided by the judges in England that he was resident within
the jurisdiction of the courts in England, and that he had ceased for
twelve months to practise as an attorney or solicitor in any colonial
court of law. [This last was repealed by 37 and 38 Vict. c. 41.]
By sec. 5, when any person shall seek to be admitted as an attorney
or solicitor, or as an attorney and solicitor, the common law and equity
judges in England and the Master of the Rolls might appoint examiners
and make orders for conducting examinations, and if by such examina-
tion any of the judges of the courts of common law should be satisﬁed of
such person’s ﬁtness, then any one of the said judges had authority to
administer to such person the oaths by law required to be administered
to attornies, &c., in England, which admission was to be written on parch-
ment signed by the judge and stamped with the stamps after mentioned.
By sec. 6, on the admission of any person as an attorney or solicitor
the stamp duties on admission of any person under the Act were to be
the stamps required to be impressed on the admission of attornies or
solicitors in England (as the case may be), and the admission ﬁrst
obtained was to be impressed with such further stamp as should, to-
gether with the amount of stamps paid on articles of clerkship and
admission in the colony, be equal in amount to the sum by law payable
on articles of clerkship in England.
By sec. 7, Her Majesty may from time to time by Order in Council
direct this Act to come into operation as to any one or more of Her
Majesty’s colonies or dependencies, and thereupon, but not otherwise,
the provisions of this Act were to apply to such persons as were duly
admitted as attornies and solicitors in the superior courts in such colo-
nies, &c. But no such Order in Council shall be made in respect of any
colony, except upon application made by the Governor or person exer-
cising the functions of Governor of such colony or dependency, and until
it shall be shown to the satisfaction of Her Majesty’s principal Secre»
tary of State for the Colonies, that the system of jurisprudence as ad-
ministered in such colony, &c., and the qualiﬁcation for admission as an
attorney or solicitor in the superior courts of law in such colony, &c.,
answer to and fulﬁl the conditions speciﬁed in sec. 3 above. And
also that the attornies or solicitors of the- superior courts of law and
1857.] 20 & 21 VICT. c. 39.—THE BAR IN CANADA.
721
equity in England are admitted as attornies and solicitors in the
superior courts of law and equity of such colony or dependency on
production of their certiﬁcates of admission in the English courts, with-
out service or examination in the colony or dependency.1
1 In Canada it is possible fora
solicitor to be also a barrister, and
vice versci, and the two professions
are generally combined.
Each province has its own law
society. The conditions regulating
the legal profession are arranged by
these societies and by the provin-
cial legislatures. In every case it
is necessary to obtain authority to
practise from the local society.
The formalities to be observed, and
the fees to be paid (which are
moderate), may be ascertained on
arrival. Where not otherwise men-
tioned, a barrister wishing to be-
come a solicitor, and vice versa,
must follow the usual conditions
prescribed for residents in the va-
rious provinces.
QUEBEC.—The difference be—
tween the English law and the old
French law prevailing in Quebec
obviously precludes any British
legal practitioner being admitted to
practise in this province without
having passed through the usual
course of study and examination
provided by the Quebec Law So-
ciety.
0NTAR10.—A British barrister
may be called, upon furnishing
proof of his call and good stand-
ing, and upon passing such ex-
aminations as may be prescribed.
If in actual practice in Ontario for
three years, he may be admitted as
a solicitor. A solicitor may be
called to the bar if he has had
actual practice in Great Britain,
upon passing certain examinations,
varying with the length of time
he has been in practice; and if he
has had ﬁve years’ practice, or has
served one year with an Ontario
solicitor, he may be admitted as a
solicitor upon passing the usual
ﬁnal examination.
Nova ScoTIA.—Barriste1's are-
admitted to practise in Nova Scotia
upon ﬁling satisfactory certiﬁcates
of status, and solicitors upon ﬁling
certiﬁcates and passing an exami-
nation.
NEW BRUNSWICK. — Solicitors
must serve for one year before
being admitted as attorneys, and
at the end of an additional year
may be called to the bar.
PRINCE EDWARD ISLAND.—
Barristers and solicitors may be
admitted after twelve months’ resi-
dence previous to ﬁling an appli-
cation for permission to practise
in Prince Edward Island.
MANITOBA.-—Barristers may be
called in Manitoba upon producing
evidence of call and standing. So-
licitors are admitted to practise on
passing an examination on the
statute law of the province and
practice of the provincial courts.
NORTH-WEST TERRITORIES.—
Barristers and solicitors are permit-
ted to practise on becoming resi-
dents in the territories.
BRITISH COLUMBIA.———B&I‘I‘lSt€I'S
may be called to the bar, and so-
licitors admitted to practise as such,
after a residence of twelve months
in the province, and passing an ex-
amination upon the statute law of
the province and the practice of
the provincial courts. [See Official
Handbook
21 a 22 VIoT. (1858) c. 99.
Sec. 1 repealed by 26 81} 27 Vict. c. 83., and Act con-
tinued; whole Act repealed by 29 & 30 Vict. c. 67. s. 9;
and S.L.R. Act, 1878; and see 33 & 341 Vict. c. 66.
S 2340.
ZZ
722 21 a 22 VICT. 0. 99-8. 0., GOVERNMENT or. [1858.
Boundaries
of British
Columbia.
Her Majesty
by Order in
Council may
make or pro-
vide for the
making of
laws for the
government of
Her Maj esty’s
subjects and
others in
British
Columbia.
An Act to provide for the Government of British
Columbia. [2nd Aug. 1858.]
“ HEREAS divers of Her Majesty’s subjects and
others have, by the license and consent of Her
Majesty, resorted to and settled on certain wild and
unoccupied territories on the north-west coast of North
America, commonly known by the designation of New
Caledonia, and from and after the passing of this Act to
be named British Columbia, and the islands adjacent,
for mining and other purposes ; and it is desirable to
make some temporary provision for the civil govern-
ment of such territories, until permanent settlements
shall be thereupon established, and the number of
colonists increased 2” Be it therefore enacted by the
Queen’s most Excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and
by the authority of the same, as follows :
1. British Columbia shall, for the purposes of this
Act, be held to comprise all such territories within
the dominions of Her Majesty as are bounded to the
south by the frontier of the United States of America,
to the east by the main chain of the Rocky Mountains,
to the north by Simpson’s River and the Finlay Branch
of the Peace River, and to the west by the Paciﬁc
Ocean, and shall include Queen Charlotte’s Island, and
all other islands adjacent to the said territories, except
as herein-after excepted.
2. It shall be lawful for Her Majesty, by any order
or orders to be by her from time to time made, with
the advice of her Privy Council, to make, ordain, and
establish, and (subject to such conditions or restrictions
as to her shall seem meet) to authorize and empower
such officer as she may from time to time appoint as
Governor of British Columbia, to make provision for
the administration of justice therein, and generally to
1858.] 21 a 22 VICT.c. 99.~-—CRIME IN INDIAN TER. 723
make, ordain, and establish all such laws, institutions, and
ordinances as may be necessary for the peace, order, and
good government of Her Majesty’s subjects and others
therein ; provided that all such Orders in Council,
and all laws and ordinances so to be made as aforesaid,
shall be laid before both Houses of Parliament as soon
as conveniently may be after the making and enact-
ment thereof respectively. ‘
3, Provided always, That it shall be lawful for Her
Majesty, so soon as she may deem it convenient, by any
such Order in CoImcil as aforesaid to constitute or to
authorize and empower such ofﬁcer to constitute a
Legislature to make laws for the peace, order, and good
government of British Columbia, such Legislature to
consist of the Governor and a Council, or Council and
Assembly, to be composed of such and so many persons,
and to be appointed or elected in such manner and for
such periods, and subject to such regulations, as to Her
Majesty may seem expedient.
4, “ And whereas an Act was passed in the
forty-third year of King George the Third, intituled
‘ An Act for extending the Jurisdiction of the Courts
of Justice in the Provinces of Lower and Upper
Canada to the Trial and Punishment of Persons guilty
of Crimes and Offences within certain Parts of North
America adjoining to the said Provinces :’ And whereas
by an Act passed in the second year of King George
the Fourth, intituled ‘An Act for regulating the Fur
Trade, and establishing a Criminal and Civil J uris-
diction within certain parts of North America,’
it was enacted, that from and after the passing of
that Act the Courts of Judicature then existing or
which might be thereafter established in the province
of Upper Canada should have the same civil jurisdiction,
power, and authority, within the Indian territories and
other parts of America, not within the limits of either
of the provinces of Lower or Upper Canada, or of any
Her Majesty
may establish a
local Legisla-
ture in British
Columbia.
Certain pro-
visions of
43 Geo. 3.
c.138.and
1 8t 2 Geo. 4.
0.66. as regards
British Colum-
bia. repealed.
z z 2
7 24¢ 21 a 22- vIcT. c. 99.--TRIAL or MURDER cAsEs. [1858.
civil government of the United States, as the said
courts had or were invested with within the limits of
the said provinces of Lower or Upper Canada respec-
tively, and that every contract, agreement, debt, liability
and demand made, entered into, incurred, or arising
within the said Indian territories and other parts of
America, and that every wrong and injury to the person
or to property committed or done within the same,
should be and be deemed to be of the same nature, and
be cognizable and be tried in the same manner, and
subject to the same consequences in all respects, as if
the same had been made, entered into, incurred, arisen.
committed, or done within the said province of Upper
Canada ; and in the same Act are contained provisions
for giving force, authority, and effect within the said
Indian territories and other parts of America to the
process and acts of the said Courts of Upper Canada ;
and it was thereby also enacted, that it should be lawful
for His Majesty, if he should deem it convenient so to do,
to issue a commission or commissions to any person or
persons to be and act as justices of the peace, within
such parts of America as aforesaid, as well within any
territories theretofore granted to the Company of Adven-
turers of England trading to Hndson’s Bay as within
the Indian territories of such other parts of America as
aforesaid ; and it was further enacted, that it should be
lawful for His Majesty from time to time by any com-
mission under the Great Seal to authorize and empower
any such persons so appointed justices of the peace as
aforesaid to sit and hold courts of‘ record for the trial of
criminal offences and misdemeanors, and also of civil
causes, and it should be lawful for His Majesty to order,
direct, and authorize the appointment of proper officers
to act in aid of such courts and justices within the
jurisdiction assigned to such courts and justices in any
such commission, provided that such courts should not
try any oifender upon any charge or indictment for any
felony made the subject of capital punishment, or for
any offence or passing sentence affecting the life of
1856.] 21 a 22 vIoT. c. 99.—RIGHT or APPEAL TO P. c. 725
any offender, or adjudge or cause any offender to suiIer
capital punishment or transportation, or take cognizance '
of or try any civil action or suit in which the cause of
such suit or action should exceed in value the amount or
sum of two hundred pounds, and in every case of any
oﬁence subjecting the person committing the same to
capital punishment or transportation, the court or any
judge of any such court, or any justice or justices of the
peace before whom any such offender should be brought,
should commit such oﬁender to safe custody, and cause
such offender to be sent in such custody for trial in the
court of the province of Upper Canada .'”
From and after the proclamation of this Act in
British Columbia the said Act of the forty-third year
of King George the Third, and the said recited provisions
of the said Act of the second year of King George the
Fourth, and the provisions contained in such Act for
giving force, authority, and eiiect within the Indian
territories and other parts of America to the process and
acts of the said courts of Upper Canada, shall cease to
have force in and to be applicable to British Columbia.
5, Provided always, that all judgments given in any
civil suit in British Colmnbia shall be subject to appeal
to Her Majesty in Council, in the manner and subject
to the regulations in and subject to which appeals are
now brought from the civil courts of Canada, and to
such further or other regulations as Her Majesty,
with the advice of her Privy Council, shall from time
to time appoint.
. 6. No part of the colony of Vancoaner’s Island, as
at present established, shall be comprised within British
Columbia for the purpose of this Act; but it shall be
lawful for Her Majesty, her heirs and successors, on
receiving at any time during the continuance of this
Act a joint address from the two Houses of the Legis-
Appeal from
judgments in
civil suits to
the Privy
Council.
Va-ncouver’s
Island, as at
present esta-
blished, not to
be included in
British
Columbia.
‘726 22 VICT. c. 28.-SUPERANNUAT10N8. [1858.
“ Governor.”
Act to con-
tinue in force
until Dec. 31,
1862.
Expiration of
Act not to
affect bounda-
ries, &c.
lature of Vancouver’s Island, praying for the incorpora-
tion of that island with British Columbia, by order to
be made as aforesaid, with the advice of her Privy
Council, to annex the said island to British Columbia,
subject to such conditions and regulations as to Her
Majesty shall seem expedient: and thereupon and from
the date of the publication of such order in the said
island, or such other date as may be ﬁxed in such order,
the provisions of this Act shall be held to apply to
Vancouoer’s Island.
7, In the construction of this Act the term “ Gov-
ernor” shall mean the person for the time being
lawfully administering the Government of British
Columbia.
8. This Act shall continue in force until the thirty-
ﬁrst day of December, one thousand eight hundred and
sixty-two, and thenceforth to the end of the then next
session of Parliament : Provided always, that the expir-
ation of this Act shall not aﬁect the boundaries
hereby deﬁned, or the right of appeal hereby given, or
any act done or right or title acquired under or by‘
virtue of this Act, nor shall the expiration of this Act
revive the Acts or parts of Acts hereby repealed.
22 VICT. (1859) c. 28.
[Sec 1 repealed by S. L. R. Act, 1875; amended by
23 & 244 Vict. c. 89. and 47 80449 Vict. c. 57 .; sec. 5 re-
pealed by 50 & 51 Vict. c. 67. 8. 14; certain words in
the Act and part of Schedule repealed by S. L. R. Act,
1892,o.19j
An Act to amend the Laws concerning Super-
annuations and other Allowances to Persons
having held Civil Oflices in the Public Service.
This Act and its amending Acts were applied to the
Colonial Civil Service by 50 & 51 Vict. c. 13. l
1859.] 22 a 23 vIo'r. 5. 10.—LEG. AssEM. SPEAKER. 727
22 a 25 vIoT. (1859) 5. 10.
[Repealed by S. L. R. Act, 1892, 55 85 56 Vict c. 19. ;
and see B. N. A. Act, 1867.]
An Act to empower the Legislature of Canada
to make Laws regulating the Appointment of a
Speaker of the Legislative Council.
[8th Aug. 1859.]
“ ‘ HEREAS by an Act passed in the session of
Parliament holden in the third and fourth
years of Her Majesty, chapter thirty-ﬁve, ‘to reunite
the Provinces of Upper and Lower Canada, and for the
Government of Canada,’ it is amongst other things
provided, that the governor of the province of Canada
shall have power and authority, from time to time, by
an instrument under the great seal of the said province,
to appoint one member of the said Legislative Council
to be speaker of the said Legislative Council, and to
remove him, and appoint another in his stead: And
whereas by an Act passed in the session of Parliament
holden in the seventeenth and eighteenth years of Her
esty, chapter one hundred and eighteen, ‘to empower
the Legislature of Canada to alter the constitution of
the Legislative Council for that province, and for other
purposes,’ power was given to the Legislature of Canada
to alter the manner of composing the Legislative Council
for that province, and to make it consist of such number
of persons appointed or to be appointed or elected by
such persons, and in such manner as to the said Legis-
lature may seem ﬁt, in the manner and subject to the
conditions by that Act provided, and for the purpose
aforesaid to vary and repeal, in such manner as to them
may seem ﬁt, all or any of the provisions of the ﬁrst-
recited Act, and of any other Act of Parliament now in
force which relate to the constitution of the Legislative
Council of Canada ; and it was thereby further enacted,
that the speaker of the Legislative Council should, as
3 85 4 Vict.
c. 35.
17 & 18 Vict.
c. 118.
728 22 a 23 VlCT..c. 10.--LAWS roe SPEAKER. [1859.
theretofore, be appointed by the Governor: And whereas
the said Legislature, in pursuance of the powers con-
ferred on them by the said last-recited Act, have, by an
Act of the province of Canada passed in the session of
the said Legislature holden in the nineteenth and twen-
aas‘nfocxifgi tieth years of Her Majesty, ‘ to change the Constitution
of the Legislative Council by rendering the same Elec-
tive,’ provided for the election of members of the said
Council, and for the gradual substitution of elective for
appointed members thereof: And whereas doubts have
been entertained whether it is lawful for the Legislature
of Canada, under the powers given to them by the said
last-recited Act of Parliament, to provide for the ap-
pointment or election of a Speaker of the Legislative
Council, and it is expedient that such doubts should be
removed :” Be it enacted by the Queen’s most excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :
The Leeisla- 1, It shall be lawful for the Legislature of Canada,
ture of Canada
empiovlreredto by any Act or Acts passed in the manner and subject to
ma 8 aws
touching the the conditions speciﬁed in the said last-recited Act of
Parliament, to alter the constitution of the Legislative
K858325556“ Council of the said province, by providing for the ap-
Coiwcil- pointment or election of a speaker of the said Council:
and for this purpose to vary and repeal, in such manner
as to them may seem ﬁt, so much of the herein-before
recited sections of the said Acts of Parliament, and of
the provisions of the said recited or any other Acts of
Parliament, as relates to the appointment of such speaker.
[See Deputy Speaker Act, 1895 ; sess. 2, c. 3.]
22 85 2e VICT. (1859) e. 2e.
.. [Preamble and to “ as follows ” repealed S. L. R. Act,
1892; 55 & 5e Vict. c. 19.] H
1859.] 22 a 23 VICT. c. 26.—JUSTICE IN N. w. T. 729
An Act to make further provision for the regu-
lation of the trade with the Indians, and for
the Administration of Justice in the North-
western territories of America.
[13th Aug. 1859.]
“ HEREAS an Act was passed in the 4113 Geo. 3.
c. 138 ‘ for extending the jurisdiction of the
Courts of Justice in the provinces of Lower and Upper
Canada, to the trial and punishment of persons guilty
of crimes and offences within certain parts of North
America adjoining to the said provinces,’ and an Act
was passed in the session holden in the ﬁrst and second
years of King George the Fourth (chapter sixty-six),
‘ for regulating the fur trade, and for establishing a
criminal and civil jurisdiction within certain parts of
North America’; and by the firstly herein mentioned
Act it was enacted, that all offences committed within
any of the Indian territories or parts of America not
within the limits of either of the provinces of Lower
or Upper Canada, or of any civil government of the
United States of America, should be and be deemed to
be oﬁences of the same nature, and should be tried in
the same manner, and subject to the same punishment,
as if the same had been committed within the provinces
of Lower or Upper Canada; and by the secondly
herein mentioned Act it was enacted, that it should be
lawful for His Majesty, if he should deem it convenient
so to do, to issue a commission or commissions to any
person or persons to be and act as Justices of the Peace
within such parts of America as aforesaid; and it was
also enacted, that it should be lawful for His Majesty,
by commission under the great seal, to authorize and
empower such persons so appointed justices to sit and
hold courts of record for the trial of criminal offences
and misdemeanors, and also of civil causes: And whereas
no courts of record have been established or authorized
as aforesaid, and it is expedient to make further provi-
sion for the administration of justice in criminal cases
43 Geo. 3.
c. 138.
1&2 Geo. 4.
_c. 66.
730 22 a 28 vIoT. c. 26.--J.P.’s 1N BRITISH AMER. [1859.
Justices of the
peace in the
British
American
Indian Territo-
ries authorized
to try offences
summarily, and
punish by ﬁne
or imprison-
ment.
in the said Indian territories, and such other parts as
aforesaid of America, and also to make provision for
better regulating trade with the Indians in the territories
and parts aforesaid :” Be it therefore enacted by the
Queen’s most Excellent Majesty, by and with the advice
and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by
the authority of the same, as follows : ‘ ‘
1, It shall be lawful for Her Majesty, by the com-
mission by which any justices of the peace are appointed
under the said Act of King George the Fourth, or by
any subsequent commission, or by any order in council,
from time to time to authorize any such justice or
justices to take cognizance of and try in a summary
way all crimes, misdemeanors, and offences whatsoever,
except as herein-after mentioned, within the local limits
of the jurisdiction of such justices (or such parts thereof
as Her Majesty may direct in this behalf), and to punish
such crimes, misdemeanors, and offences by ﬁne or im-
prisonment, or both; and it shall be lawful for Her
Majesty, in manner aforesaid, from time to time to
restrict or regulate the exercise of such jurisdiction as
she may think ﬁt, and to direct in what cases the same
may be exercised by one or by more than one of such
justices, and generally to make such provision concerning
the exercise of such jurisdiction as to Her Majesty may
seem expedient; and it shall also be lawful for Her
Majesty, in manner aforesaid, to order or authorize the
appointment of all proper oﬂicers to act in aid of such
justices, and the said justices respectively may do or
cause to be done all acts, matters, and things for the
execution of their sentences, and in aid of their juris-
diction under this Act, which might be done or caused
to be done by courts of record having jurisdiction in the
like cases: Provided always, that where the offence
with which any person is charged before any such
justice or justices is one which is punishable with death,
or one which in the opinion of such justice or justices
1859.] 22 a 23 vIcT. 5. 2e.-sALE or DRINK 731
ought, either on account of the inadequacy of the pun-
ishment which such justice or justices can inﬂict, or for
any other reason, to be made the subject of prosecution
in the ordinary way, rather than to be disposed of sum-
marily, such justice or justices shall commit the offender
to safe custody, and cause him to be sent in such custody
for trial to Upper Canada, as provided by the said Act
of King George the Fourth, or, where such justice or
justices may see ﬁt, to the colony of British Columbia;
and such oﬁender may be tried and dealt with by any
Court constituted in British Columbia having cognizance
of the like oﬁences committed there, and such court
shall have the like powers and authorities for this pur-
pose as under the said Acts are given to any Court in
Canada in the like cases.
2. Provided, That nothing herein-before contained GTsltlgbipsigerto
shall be taken to repeal or affect the provisions of the court:1 of
recor not to
said Act of King George the Fourth concerning the be erected,
establishment of courts of record in the said territories,
and where such courts are established any oﬁenders
within the limits of the jurisdiction thereof may be
committed for trial to such courts instead of the courts
of Canada or British Columbia.
3. It shall be lawful for Her Majesty, by and with lljierolgaiesty,
the advice of Her Privy Council, from time to time to cimnrairllily
. k ~ 1-
make such rules and regulations as she may deem ex-
Eoef’ihi
pedient for the conduct of the trade with the Indians, tlfgingiith the
and for diminishing or preventing the sale and distribu- '
tion of spirits to the Indians, or for promoting their
moral and religious improvement, to be in force in all
or any portions of the territories mentioned in the said
Act of King George the Fourth which may not be in-
cluded in any grant or licence for the time being in
force under that Act.
, _ . Hudson’s Bay
4. Nothmg herein contamed shall extend to the terr1- 09319129115’.
. British Colum—
tones heretofore granted to the company of adventurers bia, and van.
' ' ' - ’ I 1 . .
tradlng to Hudson’s Bay ; and nothing herein contamed itlivféesctegfna
732 28 a 27 VIOT. c. 7e._coL. LETTERS PATENT. [1863.
Letters Patent
not to take
effect in _
Colonies till
published, &c.,
but acts done
under them
valid.
Future Letters
Patent not to
take effect in
Colony till .
publication.
shall extend to the colony of British Columbia, save as
herein expressly provided, or to the colony of Vancouver’s
Island.
28 a 27 vIcT. (1863) e. 75.
[See a repealed by S. L. R. Act, 1875 ; preamble from
“ and it is expedient ” to “ same as follows,” and sec. 5,
repealed by S. L. R. Act, 1893, c. 141.]
An Act to determine the time at which Letters
Patent shall take effect in the Colonies.
[28th July 1863.]
“ HEREAS Her Majesty hath from time to time
caused to be made under the great seal of the
United Kingdom of Great Britain and Ireland divers
Letters Patent intended to take effect within Her Ma-
jesty’s colonies and possessions beyond the seas: And
whereas doubts are entertained respecting the period at
which such Letters Patent have taken or may hereafter
take elfect within such colonies and possessions, and it
is expedient that such doubts should be removed :” Be
it therefore enacted by the Queen’s most excellent Ma-
jesty, by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows : '
1, No such Letters Patent heretofore made shall
(unless otherwise provided therein or by other lawful
authority) be deemed to have taken or shall take eﬁect
in any such colony or possession as aforesaid until the
same were or shall be publicly made known or acted‘
upon therein : Provided that any act or thing heretofore
done or purporting to have been done in pursuance or
under authority of such Letters Patent shall be as valid’
and effectual as if the same Letters Patent had taken
effect at the date of the making thereof.
2. No such Letters Patent hereafter to be made shall
(unless otherwise provided therein or by other lawful
authority) take effect in any such colony or ‘possession
11863.] 26 a 27 VICT. c. 83._-B. c. BOUNDARIES. 783
until the making of the same shall have been signiﬁed
therein by proclamation or other public notice.
3. Any such Letters Patent by which any person may Amfinttments
. Y et ers
be hereafter appointed to any office or employment Patent to be
void unless
within any of such colonies or possessions shall (unless Published with-
in six or nine
otherwise provided therein or by other lawful authority) months
become null and void in respect of such colony, unless
the same shall be so signiﬁed as aforesaid within the
following period; that is to say, within nine calendar
months in case such colony or possession shall be to the
eastward of Bengal in the East Indies, or to the west
of Cape Horn in South America, or in any other case
within six months after the making thereof.
4;, The Act, chapter ninety-one, of the ninth and 9 & 10 Vict.
c. 91. repealed.
tenth years of Her Majesty, intituled “An Act to con-
tinue certain patent commissions until the exhibition of
the commissions revoking them,” is hereby repealed.
5, This Act shall take effect in each of Her Majesty’s Period of Act
. . coming into
colonies and possessions so soon as the same shall be Operation,
proclaimed therein by the ofﬁcer administering the
Government thereof.
26 a 27 vIoT. (1863) c. ss.
[Repealed by 29 85 3O Vict. c. 67
An Act to deﬁne the Boundaries of the ‘Colony of
British Columbia, and to continue an Act to
provide for the Government of the said Colony.
[28th July 1863.]
“ HEREAS it is desirable to amend and continue
an Act passed in the twenty-ﬁrst and twenty-
second year of Her Majesty, chapter ninety-nine, inti-
tuled, ‘An Act to provide for the Government of British 21 & 22 Vict-
Colambia ’: ” Be it therefore enacted by the Queen’s most 0' 99'
Excellent Majesty, by and with the advice and consent
of the Lords Spiritual and Temporal, and Commons, in
734 28 a 29 VICT. c. 14._ooL. NAVAL DEFENCE. [1885.
Sec. 1 of re-
cited Act re-
pealed.
Remaining
sections of re-
cited Act con-
tinued.
Boundaries of
British Colum-
bia.
this present Parliament assembled, and by the authority
of the same, as follows:
I. The ﬁrst section of the aforesaid Act is repealed.
2. The remaining sections of the said Act shall con-
tinue in force till the thirty-ﬁrst day of December one
thousand eight hundred and sixty-three, and no longer,
provided that the expiration of the said Act shall not
invalidate any Order in Council or other instrument
issued under authority of the said Act, nor any act done
or right or title acquired by virtue of the said Act, nor
affect the right of appeal thereby given, nor revive any
Acts or parts of Acts of Parliament thereby repealed.
3, British Columbia shall for the purposes of the said
Act, and for all other purposes, be held to comprise all
such territories within the dominions of Her Majesty as
are bounded to the south by the territories of the United
States of America, to the west by the Paciﬁc Ocean and
the frontier of the Russian territories in North America,
to the north by the sixt-ieth parallel of north latitude,
and to the east, from the boundary of the United States
northwards, by the Rocky Mountains and the one hun-
dred and twentieth meridian of west longitude, and shall
include Queen Charlotte’s Island and all other islands
adjacent to the said territories, except V ancouver’s
Island and the islands adjacent thereto. [See 29 85 30
Vict. c. 67. and 33 & 344 c. 66.]
28 a 29 vror. (1885) c. 14.
[Preamble and to “same as follows ” ; sec. 2 from “ the
term the Admiralty ” to the end of the section, repealed
by S. L. R. Act, 1893, 56 Vict. 0. 14k]
An Act to make better Provision for the Naval
Defence of the Colonies. [7th April 1865.]
“ _ HEREAS it is expedient to enable the several
colonial possessions of Her Majesty the Queen
to make better provision for naval defence, and to that
1865.] 28 a. 29 VICT. 5. 14._coL. NAvAL DEEENcE. 735
end to provide and man vessels of war, and also to raise
a volunteer force to form part of the Royal Naval Reserve
established under the Act of Parliament of 1859 ‘for
the Establishment of a Reserve Volunteer Force of Sea-
men, and for the government of the same,’ (hereafter in
this Act called the Act of 1859,) and accordingly to
be available for general service in the Royal Navy
in emergency :”
Be it therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :
1. This Act may be cited as the Colonial Naval Defence
Act, 1865.
2. In this Act—-
The term “colony” includes any plantation, island,
or other possession within Her Majesty’s dominions,
exclusive of the United Kingdom of Great Britain
and Ireland, and of the islands being immediate
dependencies thereof, and exclusive of India as
deﬁned by the Act of Parliament of 1858 “ for the
better government of India : ”
The term “the Admiralty” means the Lord High
Admiral of the United Kingdom, or the commis-
sioners for executing the office of Lord High Ad-
miral.
3, In any colony it shall be lawful for the proper
legislative authority, with the approval of Her Majesty
in Council, from time to time to make provision for
effecting at the expense of the colony all or any of the
purposes following :
(1.) For providing, maintaining, and using a vessel
or vessels of war, subject to such conditions
and for such purposes as Her Majesty in
Council from time to time approves :
22 85 23 Vict.
c. 40.
Short Title.
Interpretation.
Power for
colonies to
provide vessels,
raise men, and
commission
oﬂicers, &c.
736 28 a 29 vrcr. c. 14.-COL. NAVAL’ VOLS. [1865.
Volunteers to
form part of
Royal Naval
Reserve.
(
Power to
Admiralty to
issue special
commissions.
(2.) For raising and maintaining seamen and others
entered on the terms of being bound to serve
as ordered in any such vessel:
For raising and maintaining a body of volunteers
entered on. the terms of being bound to general
service in the Royal Navy in emergency, and,
if in any case the proper legislative authority
so directs, on the further terms of being bound
to serve as ordered in any such vessel as afore-
said :
(4.) For appointing commissioned, warrant, and other
ofﬁcers to train and command or serve as
oﬂicers with any such men ashore or aﬂoat,
on such terms and subject to such regulations
as Her Majesty in Council from time to time
approves :
(5.) For obtaining from the Admiralty the services of
commissioned, warrant, and other officers, and
of men of the Royal Navy for the last-men-
tioned purposes :
(6.) For enforcing good order and discipline among
the men and officers aforesaid while ashore or
aﬂoat within the limits of the colony :
(7.) For making the men and oﬂ‘icers aforesaid, while
ashore or aﬂoat within the limits of the colony
or elsewhere, subject to all enactments and
regulations for the time being in force for the
discipline of the Royal Navy.
4-, Volunteers raised as aforesaid in any colony shall
form part of the Royal Naval Reserve, in addition to
the volunteers who may be raised under the Act of 1859,
but, except as in this Act expressly provided, shall be
subject exclusively to the provisions made as aforesaid,
by the proper legislative authority of the colony.
5., It shall be lawful for Her Majesty in Council
from time to time as occasion requires, and on such
conditions as seem ﬁt, to authorize the Admiralty to
1865.] as a 29 VIC-'1‘. c. it—coL. WAR SHIPS. 737
issue to any officer of the Royal Navy volunteering for
the purpose a special commission for service in accord-
ance with the provisions of this Act.
6. It shall be lawful for Her Majesty in Council
from time to time as occasion requires, and on such
conditions as seem ﬁt, to authorize the Admiralty to
accept any offer for the time being made or to be made
by the Government of a colony, to place at Her Maj esty’s
disposal any vessel of war provided by that Government
and the men and ofﬁcers from time to time serving
therein; and while any vessel accepted by the Admiralty
under such authority is at the disposal of Her Majesty,
such vessel shall be deemed to all intents a vessel of war
of the Royal Navy, and the men and officers from time
to time serving in such vessel shall be deemed to all
intents men and oﬁicers of the Royal Navy, and shall
accordingly be subject to all enactments and regulations
for the time being in force for the discipline of the
Royal Navy.
'7, It shall be lawful for Her Majesty in Council
from time to time as occasion requires, and on such
conditions as seem ﬁt, to authorize the Admiralty to
accept any oﬁer for the time being made or to be made
by the Government of a colony, to place at Her esty’s
disposal for general service in the Royal Navy the whole
or any part of the body of volunteers with all or any of
the oﬁicers raised and appointed by that Government in
accordance with the provisions of this Act; and when
any such offer is accepted such of the provisions of the
Act of 1859 as relate to men of the Royal Naval Reserve
raised in the United Kingdom when in actual service
shall extend and apply to the volunteers whose services
are so accepted.
8, The Admiralty may, if they think ﬁt, from time
to time by warrant authorize any officer of Her Majesty’s
Navy of the rank of captain or of a higher rank to
exercise, in the name and on behalf of the Admiralty,
' 3 A
S 2340.
Placing of
colonial vessel
with men and
officers at Her
Majesty’s dis-
posal.
As to services
of volunteers
and oﬁicers in
Navy.
Delegation of
Admiralty
powers to
naval ofﬁcer.
7 38 28 a 20 vro'r. c. 63.—VALIDITY or con. LAWS. [1885.
Not to impose
charge on
Imperial
revenues, &c.
Not to affect
powers vested
in colonies.
in relation to any colony, for such time and subject to
such limitations, if any, as the Admiralty think ﬁt, any
power exerciseable by the Admiralty under this Act.
9, Nothing done under this Act by Order in Council, or
by the Admiralty, or otherwise, shall impose any charge
on the revenues of the United Kingdom without express
provision made by Parliament for meeting the same.
IO, Nothing in this Act shall take away or abridge
any power vested in or exerciseable by the Legislature
or Government of any colony.
28 a 29 VICT. (1885) c. 88.
[The Act may be extended by Order in Council,
41 a 42 Vict. c. 87. 4.] '
Preamble, and to “same as follows,”
S. L. R. Act, 1893, 56 Vict. c. 14:.
An Act to remove Doubts as to the Validity of
Colonial Laws. [29th J are 1865.]
repealed by
“ HEREAS doubts have been entertained re-
Deﬁnitions :
“ Colony :”
specting the validity of divers laws enacted
or purporting to have been enacted by the Legislatures
of certain of Her Majesty’s colonies, and respecting
the powers of such Legislatures, and it is expedient
that such doubts should be removed :”
Be it hereby enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows:
1, The term “ Colony” shall in this Act include all
of Her Majesty’s possessions abroad in which there shall
exist a Legislature, as herein-after deﬁned, except the
Channel Islands, the Isle of Man, and such territories
as may for the time being be vested in Her N'Iajesty
1865.] 28 a 29 VICT. 5. 63.—-'I‘ERM “ COL. LAW.” 739
under or by virtue of any Act of Parliament for the
Government of India: _
The terms “ Legislature” and “ Colonial Legislature ” I
shall severally signify the authority, other than the Legislature
Imperial Parliament or Her Majesty in Council, com-
petent to make laws for any colony:
The term “ Representative Legislature” shall signify any Colonial Legislature which shall comprise a legis- 151555 ;”
lative body of which one half are elected by inhabitants
of the colony:
The term “Colonial Law ’
for any colony either by such Legislature as aforesaid
or by Her Majesty in Council:
An Act of Parliament, or any provision thereof, shall, to
in construing this Act, he said to extend to any colony 5511555 i5
. . . colony when
when It 18 made apphcable to such colony by the ex- ,mdeappu-
press words or necessary intendment of any Act of gﬂiiytozsuch
Parliament :
The term “ Governor ” shall mean the ofﬁcer lawfully “G‘m‘nol‘ 1"
administering the government of any colony:
The term“ Letters Patent ” shall mean letters patent under the great seal of the United Kingdom of Great
Britain and Ireland.
’ shall include laws made Zeolfgniel
aw .
2, Any colonial law which is or sh all be in any $315112]???
respect repugnant to the provisions of any Act of Par- 551555555557.
liament extending to the colony to which such law may
relate, or repugnant to any order or regulation made
under authority of such Act of Parliament, or having in
the colony the force and effect of such Act, sliallbe read
subject to such Act, order, or regulation, and shall, to
the extent of such repugnancy, but not otherwise, be
and remain absolutely void and inoperative,
3, No colonial law shall be or be deemed to have Coloniallaw
7 . 1 . a . when not void
been vold 01 mopeiative on the ground of repugnancy forrepugnancy
to the law of England, unless the same shall be repug-
nant to the provisions of some such Act of Parliament,
order, or regulation as aforesaid.
3A2
7410 28 a 29 visa‘. 5. 63.--(‘-ERT. COPIES or LAWS. [1885.
Colonial law
not void for
inconsistency
with in-
structions.
Colonial Legis-
lature may
establish, &c.
courts of law.
Representative
Legislature
may alter con-
stitution.
Certiﬁed
copies of laws
to be evidence
that they are
properly
passed.
4, No colonial law, passed with the concurrence of
or assented to by the Governor of any colony, or to be
hereafter so passed or assented to, shall be or be deemed
to have been void or inoperative by reason only of any
instructions with reference to such law or the subject
thereof which may have been given to such Governor by
or on behalf of Her Majesty, by any instrument other
than the letters patent or instrument authorizing such
Governor to concur in passing or to assent to laws for
the peace, order, and good government of such colony,
even though such instructions may be referred to in
such letters patent or last-mentioned instrument.
5. Every Colonial Legislature shall have, and be
deemed at all times to have had, full power within its
jurisdiction to establish courts of judicature, and to
abolish and reconstitute the same, and to alter the con-
stitution. thereof, and to make provision for the adminis-
tration of justice therein; and every representative
Legislature shall, in respect to the colony under its
jurisdiction, have, and be deemed at all times to have
had, full power to make laws respecting the constitution,
powers, and procedure of such Legislature; provided
that such laws shall have been passed in such manner
and form as may from time to time be required by any
Act of Parliament, letters patent, Order in Council, or
colonial law for the time being in force in the said
colony.
6, The certiﬁcate of the clerk or other proper oﬂicer
of a legislative body in any colony to the effect that the
document to which it is attached is a true copy of any
colonial law assented to by the Governor of such colony,
or of any Bill reserved for the signiﬁcation of Her Ma-
jesty’s pleasure by the said Governor, shall be primti
facie evidence that the document so certiﬁed is a true
copy of such law or Bill, and, as the case may be, that
such law has been duly and properly passed and assented
to, or that such Bill has been duly and properly passed
and presented to the Governor; and any proclamation
1865.] 2a a 29 vIc'r. c. 64.—MARRIAGE LAWS. 7 411
purporting to be published by authority of the Governor
in any newspaper in the colony to which such law or
bill shall relate, and signifying Her Majesty’s disallow-
ance of any such colonial law, or Her Majesty’s assent
to any such reserved Bill as aforesaid, shall be primd
facie evidence of such disallowance or assent.
“ And whereas doubts are entertained respecting the
validity of certain Acts enacted or reputed to be enacted
by the Legislature of South Australia :” Be it further
enacted as follows :
'7. All laws or reputed laws enacted or purporting to
have been enacted by the said Legislature, or by persons
or bodies of persons for the time being acting as such
Legislature, which have received the assent of Her
Majesty in Council, or which have received the assent
of the Governor of the said colony in the name and on
behalf of Her Majesty, shall be and be deemed to have
been valid and effectual from the date of such assent
for all purposes whatever ; provided that nothing herein
contained shall be deemed to give eﬁect to any law or
reputed law which has been disallowed by Her Majesty,
or has expired, or has been lawfully repealed, or to pre-
vent the lawful disallowance or repeal of any law.1
1 See for deﬁnition of Colonial
Legislature, Long 22. The Bishop of
Cape Town, 1 M00. P.C. NS. 41 1;
In re Bishop of Natal, 3 M00. P.C.
NS. 115; Reg. 1). Burah, 3 App.
(Jas. 889; Hodge 11. Reg., 9 App.
Gas. 117 ; Powell 2). Apollo Can-
dle Coy, 10 App. Gas. 282; and
Strong, J ., in Merchants’ Bank of
Halifax r. Gillespie, lO S.C.R. p.
324; Att.-Gen. of Canada 1). Flint,
16 S.C.R. 707.
28 81; 29 VICT. c. 64:.
Preamble and to “ same as follows” repealed by
S. L. R. Act, 1893, 56 Vict. c. 141.
An Act to remove Doubts respecting the Validity
of certain Marriages contracted in Her Majesty’s
possessions abroad. [29th June 1865.]
“ HEREAS laws have from time to time been
made by the legislatures of divers of Her
Proclamation
to be evidence
of Assent and
Disallowance.
Certain Acts
enacted by
Legislature
of South
Australia to
be valid.
7445-2 28 a 28 VICT. c. 106.-AFFIRMING LAws. [1885.
Colonial laws
establishing
validity of
marriages to
have effect
throughout
Her Majesty’s
dominions.
Deﬁnition of
“ Legislature.”
Majesty’s possessions abroad for the purpose of esta-
blishing the validity of certain marriages previously
contracted therein, but doubts are entertained whether
such laws are in all respects effectual for the aforesaid
purpose beyond the limits of such possessions; ” Be it
therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows:
1. Every law made or to be made by the Legis-
lature of any such possession as aforesaid for the
purpose of establishing the validity of any marriage
or marriages contracted in such possession shall have
and be deemed to have had from the date of the
making of such law the same force and effect for the
purpose aforesaid within all parts of Her Majesty’s
dominions as such law may have had or may hereafter
have within the possession for which the same was
made: Provided that nothing in this law contained
shall give any effect or validity to any marriage unless
at the time of such marriage both of the parties thereto
were, according to the law of England, competent to
contract the same.
2. In this Act the word “ Legislature ” shall include
any authority competent to make laws for any of Her
Majesty’s possessions abroad, except the Parliament of
the United Kingdom and Her Majesty in Council. [As
to marriage at British Embassy in foreign countries, see
53 &. 5A Vict. c. 417 ., the Marriage Act, 1890.]
28 85 29 VICT. c. 106.
Preamble, and to “ same as follows ”; sec. 2 from
“The term the Admiralty ” to “ Admiral” where that
word last occurs ; the words “Commissioners of Her
Majesty’s ” wherever they occur in secs. 3, 6, and 13;
sec. 3 from the words “ under the ” to “ of them ”;
1855.] 28 a 29 VICT. 5. 113.--L()AN FOR DOC-KS. 743
the words “ the Governor and company of ” in secs. 4,
12, 13; and sec. 15, repealed by S. L. R. Act, 1893,
56 Vict. c. 14.
An Act to authorize Loans in Aid of the Construc-
tion of Docks for Vessels of the Royal Navy and
of greater dimensions. than requisite for commer-
cial purposes in British possessions except India.
28 85 29 VICT. (1865) c. 113.
Amended by 35 85 36 Vict. c. 29, and 50 85 51 Vict.
c. 13.
Preamble, and to “same as follows’’; see. 12, the
words “ the Lords Commissioners of ” and from “and
for the ” to the end of the section, repealed by
S. L. R. Act, 1893, 56 Vict. c. 14.
An Act to authorize the Payment of Retiring
Pensions to Colonial Governors.
28 a. 29 VICT. (1855) 5. 115.
This was “ An Act to explain the Foreign Jurisdiction
Act, 6 85 7 Vict. c. 94.,” and enacted that the term
“ British Colony ” should include any of Her Majesty’s
possessions out of the United Kingdom.
29 85 30 VICT. (1866) c. 65.
Repealed by 33 85 34 Vict. c. 10. s. 20.
Referring to establishment of colonial mints.
29 a so vIcT. (1866) 5. 57.
Sec. 9 and the Schedule repealed by S. L. R. Act, 1878, 41 85 ~12
Vict. c. 79.
The S. L. R. Act, 1893, 56 Vict. c. 14., repeals this Act as follows :—
“ In part, namely, from ‘Be it therefore,’ to ‘as follows’ ; sec. 3, to
‘ Columbia,’ where it ﬁrst occurs; sec. 4, to ‘ cease and,’ and the words
‘after the union,’ twice occurring; sec. 5, to ‘union,’ where it ﬁrst
occurs, and the Words ‘ Commissioners of Her Majesty’s’; sec. 7, to
‘ union’ ; sec. 8, to ‘ union.’ ”
By S. L. R. Act, 1894, 57 8s 58 Vict. c. 56., secs. 2 to 6 were repealed.
74.4 29 a so vIoT. c. 67.—UNION or B. o. ' [1866.
Short title.
“ Governor."
On proclama-
tion of this Act
in British
Columbia,
Vancouver
Island united
therewith.
As to govern~
ment of the
united colony.
Laws of the
separate
colonies to
continue ex-
cept as to
revenue of
customs.
Nothing to
restrict autho-
rity of Gover-
nor, &c.
Boundaries of
British Colum-
bia until union.
An Act for the Union of the Colony of Vancouver
Island with the Colony of British Columbia.
[6th Aug. 1866.]
BE it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords spiritual and temporal, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows :—
1, This Act may be cited as The British Columbia Act, 1866.
2. In this Act the term “ Governor ” means any ofﬁcer for the time
being lawfully administering the government.
3, From and immediately after the proclamation of this Act by the
Governor of British Columbia, the colony of Vancouver Island shall
be and the same is hereby united with the colony of British Columbia,
and thenceforth those two colonies shall form and be one colony, with
the name of British Columbia (which union is in this Act referred to
as the union).
4, ()n the union taking effect, the form of government existing in
Vancouver Island as a separate colony shall cease, and the power and
authority of the Executive Government and of the Legislature existing in
British Columbia shall extent to and over Vancouver Island; but in
order that provision may be made for the representation of Vancouver
Island in the Legislature of British Columbia after the union, the
maximum number of councillors in the legislative council of British
Columbia after the union shall, until it is otherwise provided by lawful
authority, be twenty-three instead of ﬁfteen.
5, After and notwithstanding the union the laws in force in the
separate colonies of British Columbia and Vancouver Island respec-
tively at the time of the union taking effect shall, until it is otherwise
provided by lawful authority, remain in force as if this Act had not been
passed or proclaimed ; save only that the laws relative to the revenue of
customs in force in British Columbia at the time of the union taking
effect shall, until it is otherwise provided by lawful authority, extend
and apply to Vancouver Island; and, until it is otherwise provided by
lawful authority, the Governor of British Columbia shall have, in re-
lation to the territory for the time being under his government, all the
powers and authorities for the time being vested, in relation to the
United Kingdom, in the Commissioners of Her Majesty’s Treasury or
in the Commissioners of Customs, with respect to the appointment of
warehousing ports, and the approval and appointment of warehouses or
places of security in such ports, and everything consequent thereon or
relative thereto.
6, Nothing in this Act shall take away or restrict the authority of the
Governor of British Columbia, with the advice and consent of the
Legislative Council thereof, to make laws for the peace, order, and good
government of British Columbia either before or after the union; nor
shall anything in this Act interfere with the exercise of any power that
would have been exerciseable by Her Majesty in Council if this Act had
not been passed. “
7, Until the union British Columbia shall comprise all such terri-
tories within the dominions of Her Majesty as are bounded to the south
by the territories of the United States of America, to the west by the
1866.] 29 a so vIcT. c. sr-BoUNDARIEs or B. o. 745
Paciﬁc Ocean and the frontier of the Russian territories in North
America, to the north by the sixtieth parallel of north latitude, and to
the east from the boundary of the United States northwards by the
Rocky ZlIou-ntains and the one hundred and twentieth meridian of west
longitude, and shall include Queen Charlotte’s Island and all other
islands adjacent to the said territories, except Vancouver Island and the
islands adjacent thereto.
8, After the union British Columbia shall comprise all the territories
and islands aforesaid and Vancouver Island and the islands adjacent
thereto.
9, The Acts described in the schedule to this Act are hereby repealed;
but this repeal shall not invalidate any Order in Council or other instru-
ment issued under the authority of those Acts or either of them, or any
act done or right or title acquired by virtue of those Acts or of either
of them or of any such order or instrument.
S C H E D U L E.
Acts repealed.

21 & 22 Vict. c. 99. - - - An Act to provide for the government of
British Columbia.
An Act to deﬁne the boundaries of the
colony of British Columbia, and to con-
tinuean Act to provide for the govern-
ment of the said colony. [See these
Acts and 33 & 34 Vict. c. 66.]
26 & 27 Vict. c. 83. - -


30 & 31 VICT. c. 3.
An Act for the Union of Canada, Nova Scotia, and New
Brunswick, and the Government thereof; and for
Purposes connected therewith.
[29th March 1867
This Act constituted the UNITY AND DOMINION or
CANADA. [See ante, pp. 1 to 553.]
Sec. 18 was repealed by 38 &. 39 Vict. c. 38. s. 1
[see ante, p. 11].
Secs. 21 and 37 amended by B. N. A. Act, 49 85 5O
Vict. c. 35. s. 2.
Preamble, from the words “Be it therefore” to
“same, as follows”; sec. 2; sec. 4, to “provisions”
where it last occurs; sec. 25; sees. 42, 413; sec. 51,
from “ of the census ” to “ seventy-one and,” and
the word “subsequent”; sec. 81; sec.
88, from .
Boundaries
of British
Columbia after
union.
Acts in sche-
dule repealed.
746 30 a 31 vrcr. c. 3.--QUEBEC RESL. [Res]. 1884.
~“ and the House” to the end of the section; sees.
89, 127, and 145, repealed by S. L. R. Act, 1893,
56 Vict. c. 141.
Qunnno RESOLUTIONS.
‘Before the above Act was passed, resolutions were
adopted by all the provinces of Canada; the Parlia-
mentary paper presented to both Houses of Parliament,
7 February 1865 (Par. Papers, Vol. 37), was as
follows :—
REPORT of REsoLU'noNs adopted at a Conference of Delegates from
the Provinces of Canada, Nova Scotia, and New Brunswick, and the
Colonies of Newfoundland and Prince Edward Island, held at the
city of Quebec, October 10, 1864-, as the Basis of a proposed Con-
federation of those Provinces and Colonies.
1. The best interests and present and future prosperity of British
North America will be promoted by a Federal Union under the Crown
of Great Britain, provided such union can be effected on principles just
to the several provinces.
2. In the federation of the British North American Provinces, the
system of government best adapted under existing circumstances to
protect the diversiﬁed interests of the several provinces, and secure
efficiency, harmony, and permanency in the working of the union, would
be a General Government charged with matters of common interest to
the whole country, and local Governments for each of the Canadas and
for the provinces of N ova Scotia, New Brunswick, and Prince Edward
Island, charged with the control of local matters in their respective
sections, provision being made for the admission into the union on
equitable terms of .Neufoundland, the North-west Territory, British
Columbia, and Vancouver
3. In framing a Constitution for the General Government, the Con-
ference, with a view to the perpetuation of our connexion with the
Mother Country, and to the promotion of the best interests of the people
.of these provinces, desire to follow the model of the British Constitution,
so far as our circumstances will permit.
4. The executive authority or Government shall be vested in the
Sovereign of the United Kingdom of Great Britain and Ireland, and be
administered according to the well-understood principles of the British
Constitution by the Sovereign personally, or by the representative of
the Sovereign duly authorized. _
5. The Sovereign or representative of the Sovereign shall be (10m-
mander-in-Chief of the Land and Naval Militia Forces.
6. There shall be a General Legislature or Parliament for the fede-
rated provinces, composed of a Legislative Council and a House of
Commons.
7. For the purpose of forming the Legislative Council, the federated
provinces shall be considered as consisting of three divisions z—lst,
_,' Upper Canada,- 2nd, Lower Canada; 3rd, Nova Scotia, New Brunswick
and Prince Edward Island; each division with an equal representation
' in the Legislative Council.
‘R551. 1854.] so a 31 vIc'r. 5. 3.—()RIGINAL REPRES. 7417
8. Upper Canada shall be represented in the Legislative Council by
24 members, Lower Canada by 24 members, and the three maritime
provinces by 24 members, of which Nova Scotia shall have 10, lVew
Brunswick 10, and Prince Edward Island four members.
9. The colony of Newfoundland shall be entitled to enter the proposed
union, with a representation in the Legislative Council of four members.
10. The North-west Territory, British Columbia, and Vancouver shall
be admitted into the union, on such terms and conditions as the Parr
liament of the federated provinces shall deem equitable, and as shall
receive the assent of Her Majesty; and in the case of the province of
British Columbia or Vancouver, as shall be agreed to by the Legislature
of such province.
11. The members of the Legislative Council shall be appointed by the
Crown under the great seal of the General Government, and shall hold
office during life; if any Legislative Councillor shall, for two consecutive
sessioris of Parliament, fail to give his attendance in the said Council,
his seat shall thereby become vacant.
12. The members of the Legislative Council shall be British subjects
by birth or naturalization, of the full age of 30 years, shall possess a
continuous real property qualiﬁcation of four thousand dollars over and
above all incumbrances, and shall be and continue worth that sum over
and above their debts and liabilities, but in the case of Newfoundland
and Prince Edward Island, the property may be either real or personal.
13. If any question shall arise as to the qualiﬁcation of 9. Legislative
Councillor, the same shall be determined by the Council.
14. The ﬁrst selection of the members of the Legislative Council shall
be made, except as regards Prince Edward Island, from the Legislative
Councils of the various provinces, so far as a sufﬁcient number be found
qualiﬁed and willing to serve. Such members shall be appointed by the
Crown at the recommendation of the General Executive Government,
upon the nomination of the respective local Governments; and in such
nomination due regard shall be had to the claims of the members of the
Legislative Council of the opposition in each province, so that all political
parties may as nearly as possible be fairly represented.
15. The Speaker of the Legislative Council (unless otherwise provided
by Parliament) shall be appointed by the Crown from among the mem-
bers of the Legislative Council, and shall hold office during pleasure,
and shall only be entitled to a casting vote on an equality of votes.
16. Each of the 24 Legislative Councillors representing Lower Canada
in the Legislative Council of the General Legislature shall be appointed
to represent one of the 24 electoral divisions mentioned in Schedule A.
of Chapter 1st of the Consolidated Statutes of Canada, and such Coun-
cillor shall reside or possess his qualiﬁcation in the division he is ap-
pointed to represent.
17. The basis of representation in the House of Commons shall be
population, as determined by the official census every 10 years; and
the number of members at ﬁrst shall be 194, distributed as follows:
Upper Canada - - ~ ~ - 82
Lower Canada - - - - - 65
Nova Scotia - - - - - 19
New Brunswick - - - - - 15
Newfoundland - - - - - 8
Prince Edward Island - - - 5
18. Until the official census of 1871 has been made up, there shall
be no change in the number of representatives from the several sections.
748 so a 31 VICT. c. 3.—SUBJEGTS TO DOM. [ResL 1864.
19. Immediately after the completion of the census of 1871, and
immediately after every decennial census thereafter, the representation
from each section in the House of Commons shall be re-adjusted on
the basis of population.
20. For the purpose of such re-adjustments, Lower Canada shall
always be assigned 65 members, and each of the other sections shall, at
each re-adjustment, receive, for the 10 years then next succeeding, the
number of members to which it will be entitled on the same ratio of
representation to population as Lower Canada will enjoy according to
the census last taken by having 65 members.
21. No reduction shall be made in the number of members returned
by any section, unless its population shall have decreased relatively to
the population of the whole Union, to the extent of ﬁve per centum.
22. In computing at each decennial period the number of members
to which each section is entitled, no fractional parts shall be considered,
unless when exceeding one-half the number entitling to a member, in
which case a member shall be given for each such fractional part.
23. The Legislature of each province shall divide such province into
the proper number of constituencies, and deﬁne the boundaries of each
of them.
24. The local Legislature of each province may, from time to time,
alter the electoral districts for the purposes of representation in the House
of Commons, and distribute the representatives to which the province is
entitled, in any manner such Legislature may think ﬁt.
25. The number of members may at any time be increased by the
General Parliament, regard being had to the proportionate rights then
existing.
26. Until provisions are made by the General Parliament, all the laws
which at the date of the proclamation constituting the union are in
force in the provinces respectively, relating to the qualiﬁcation and dis-
qualiﬁcation of any person to be elected or to sit or vote as a member of
the Assembly in the said provinces respectively,—-and relating to the
qualiﬁcation or disqualiﬁcation of voters, and to the oaths to be taken
by voters, and to returning oﬁicers and their powers and duties,--and
relating to the proceedings at elections,—and to the period during which
such elections may be continued,—and relating to the trial of contro-
verted elections, and the proceedings incident thereto,—and relating to
the vacating of seats of members,-—and the issuing and execution of
new writs in case of any seat being vacated otherwise than by a disso-
lution,—shall respectively apply to elections of members to serve in the
-House of Commons, for places situate in those provinces respectively.
27. Every House of Commons shall continue for ﬁve years from the
day of the return of the writs choosing the same, and no longer, subject,
nevertheless, to be sooner prorogued or dissolved by the Governor.
28. There shall be a session of the General Parliament once at least
in every year, so that a period of 12 calendar months shall not intervene
between the last sitting of the General Parliament in one session and the
ﬁrst sitting thereof in the next session.
29. The General Parliament shall have power to make laws for the
peace, welfare, and good government of the federated provinces (saving
the sovereignty of England), and especially laws respecting the following
subjects :— ‘ ‘ *
1. The public debt and property.
2. The regulation of trade and commerce.
3. The imposition or regulation of duties of customs on imports and
. exports, except on exports of timber, logs, masts, spars, deals,
and sawn lumber, and of coal and other minerals.
Reel. 1864.] so a 31 vro'r. c. a- GEN. cov. POWERS. 7419
CD\I¢D CHI-ll
lO.
3 l.
35.
36.
3'7.
. The imposition and regulation of excise duties.
. The raising of money by all or any other modes or systems of
taxation.
. The borrowing of money on the public credit.
. Postal service.
. Lines of steam or other ships, railways, canals, and other works,
connecting any two or more of the provinces together, or
extending beyond the limits of any province.
. Lines of steamships between the federated provinces and other
countries.
Telegraphic communication and the incorporation of telegraph
companies.
. All such works as shall, although lying wholly within any pro-
vince, be specially declared by the Acts authorizing them to be
for the general advantage.
. The census.
. Militia—military and naval service and defence.
. Beacons, buoys, and lighthouses.
. Navigation and shipping.
. Quarantine.
. Sea coast and inland ﬁsheries.
. Ferries between any province and a foreign country, or between
any two provinces.
. Currency and coinage.
. Banking, incorporation of banks, and the issue of paper money.
. Savings banks.
-. Weights and measures.
. Bills of exchange and promissory notes.
. Interest.
. Legal tender.
. Bankruptcy and insolvency.
. Patents of invention and discovery.
. Copyrights.
. Indians and lands reserved for the Indians.
. Naturalization and aliens.
. Marriage and divorce.
. The criminal law, excepting the constitution of courts of
criminal jurisdiction, but including the procedure in criminal
matters.
. Rendering uniform all or any of the laws relative to property and
civil rights in Upper Canada, Nova Scotia, New Brunswick,
Newfoundland, and Prince Edward Island, and rendering
uniform the procedure of all or any of the courts in these
provinces; but any statute for this purpose shall have no force
or authority in any province until sanctioned by the Legislature
thereof.
The establishment of a General Court of Appeal for the federated
provinces.
Immigration.
Agriculture.
And generally respecting all matters of a general character, not
specially and exclusively reserved for the local Governments
and Legislatures.
30. The General Government and Parliament shall have all powers
necessary or proper for performing the obligations of the federated pro-
vinces, as part of the British Empire, to foreign countries, arising under
treaties between Great Britain and such countries.
750 so a 21 VICT. c. 3.-LOG. eov. POWERS. [Resl 1864.
31. The General Parliament may also, from time to time, establish
additional courts, and the General Government may appoint judges and
oﬂicers thereof, when the same shall appear necessary or for the public
advantage, in order to the due execution of the laws of Parliament.
32. All courts, judges, and officers of the several provinces shall aid,
assist, and obey the General Government in the exercise of its rights and
powers, and for such purposes shall be held to be courts, judges, and
oﬂicers of the General Government.
33. The General Government shall appoint and pay the judges of the
superior courts in each province, and of the County Courts of Upper
Canada, and Parliament shall ﬁx their salaries.
34. Until the consolidation of the laws of Upper Canada, ZVew Bruns-
wick, .No'va Scotz'a, Neufoundland, and Prince Edward Island, the
judges of these provinces appointed by the General Government shall be
selected from their respective bars.
35. The judges of the courts of Lower Canada shall be selected from
the bar of Lower Canada.
36. The judges of the Court of Admiralty now receiving salaries shall
be paid by the General Government.
37. The judges of the superior courts shall hold their oflices during
good behaviour, and shall be removable only on the address of both
Houses of Parliament.
Local Government.
38. For each of the provinces there shall be an executive officer,
styled the Lieutenant-Governor who shall be appointed by the Governor-
General in Council, under the great seal of the federated provinces, during
pleasure; such pleasure not to be exercised before the expiration of the
ﬁrst ﬁve years, except for cause; such cause to be communicated in
writing to the Lieutenant-Governor immediately after the exercise of the
pleasure as aforesaid, and also by messages to both Houses of Parlia-
ment, within the ﬁrst week of the ﬁrst session afterwards.
39. The Lieutenant-Governor of each province shall be paid by the
General Government.
40. In undertaking to pay the salaries of the Lieutenant-Governors, the
Conference does not desire to prejudice the claim of Prince Edward
Island upon the Imperial Government for the amount now paid for the
salary of the Lieutenant-Governor thereof.
41. The local Government and Legislature of each province shall be
constructed in such manner as the existing Legislature of such province
shall provide.
42. The local Legislatures shall have power to alter or amend their
constitution from time to time.
43. The local Legislatures shall have power to make laws respecting
the following subjects :
1. Direct taxation and the imposition of duties on the export of
timber, logs, masts, spars, deals, and sawn lumber, and of coals
and other minerals.
. Borrowing money on the credit of the province.
. The establishment and tenure of local oﬁices, and the appoint-
ment and payment of local officers.
. Agriculture.
. Immigration.
. Education; saving the ‘rights and privileges which the Protestant
or Catholic minority in both Canadas may possess as to their
denominational schools, at the time when the union goes into
operation. -
ODUH-ii 00M
Resl. 1864.] 30 a 31 VICT. c. 3.—-POWER or PAR-DON. 751
7. The sale and management of public lands, excepting lands
belonging to the General Government.
8. Sea-coast and inland ﬁsheries.
9. The establishment, maintenance, and management of peni-
tentiaries, and of public and reformatory prisons.
10. The establishment, maintenance, and management of hospitals,
asylums, charities, and eleemosynary institutions.
11. Municipal institutions.
12. Shop, saloon, tavern, auctioneer, and other licences.
13. Local works.
14. The incorporation of private or local companies, except such as
relate to matters assigned to the General Parliament.
15. Property and civil rights, excepting those portions thereof
assigned to the General Parliament.
16. Inﬂicting punishment by ﬁne, penalties, imprisonment or
otherwise, for the breach of laws passed in relation to any
subject within their jurisdiction.
17 . The administration of justice, including the constitution,
maintenance, and organization of the courts——both of civil
and criminal jurisdiction, and including also the procedure
in civil matters.
18. And generally all matters of a private or local nature, not
assigned to the General Parliament.
44. The power of respiting, reprieving, and pardoning prisoners
convicted of crimes, and of commuting and remitting of sentences in
whole or in part, which belongs of right to the Crown, shall be admi-
nistered by the Lieutenant-Governor of each province in Council, subject
to any instructions he may from time to time receive from the General
Government, and subject to any provisions that may be made in this
behalf by the General Parliament.
.Mz'scellaneous.
45. In regard to all subjects over which jurisdiction belongs to both
the general and local Legislatures, the laws of the General Parliament
shall control and supersede those made by the local Legislature, and the
latter shall be void as far as they are repugnant to or inconsistent with
the former. I
Z16. Both the English and French languages may be employed in the
General Parliament and in its proceedings, and in the local Legislature
of Lower Canada, and also in the federal courts and in the courts of
Lower Canada. _ '
47. N 0 lands or property belonging to the general or localGovern-
ment shall be liable to taxation.
48. All Bills for appropriating any part of the public revenue, or
for imposing any new tax or impost, shall originate in the House of
Commons or the House of Assembly, as the case may be.
49. The House of Commons or House of Assembly shall not ori-
ginate or pass any vote, resolution, address or Bill for the appropriation
of any part of the public revenue, or of any tax or impost to any
purpose, not ﬁrst recommended by message of the Governor-General,
or the Lieutenant-Governor, as the case may be, during the session in
which such vote, resolution, address, or Bill is passed.
50. Any Bill of the General Parliament may be reserved in the usual
manner for Her Majesty’s assent, and any Bill of‘ the local Legislatures
may in like manner be reserved for the consideration of the Governor-
General.
752 so a 31 Wei‘. 0. a-M‘INEs & MINERALS. [Resl 1864.
51. Any Bill passed by the General Parliament shall be subject to
disallowance by Her Majesty within two years, as in the case of Bills
passed by the Legislatures of the said provinces hitherto, and in like
manner any Bill passed by a local Legislature shall be subject to dis-
allowance by the Governor-General within one year after the passing
thereof.
52. The seat of government of the federated provinces shall be
Ottawa, subject to the Royal Prerogative.
53. Subject to any future action of the respective local Governments,
the seat of the local Government in Upper Canada shall be Toronto ,-
of Lower Canada, Quebec; and the seats of the local Governments in
the other provinces shall be as at present.
Property and Liabilities.
54. All stocks, cash, bankers’ balances and securities for money
belonging to each province, at the time of the union, except as herein-
after mentioned, shall belong to the General Government.
55. The following public works and property of each province shall
belong to the General Government ; to wit :—
. Canals ;
. Public harbours;
. Lighthouses and piers;
Steamboats, dredges, and public vessels;
. River and lake improvements;
. Railway and railway stocks, mortgages, and other debts due by
railway companies;
Military roads;
. Custom houses, post oﬁices, and other public buildings, except
such as may be set aside by the General Government for
the use of the local Legislatures and Governments;
9. Property transferred by the Imperial Government, and known
as Ordnance property;
10. Armouries, drill sheds, military clothing, and munitions of
war; and
11. Lands set apart for public purposes.
oofq C'aOIj-Awwr-I
56. All lands, mines, minerals, and royalties vested in Her Majestyr
in the provinces of Upper Canada, Lower Canada, Nova Scotia, New
Brunswick, and Prince Edward Island, for the use of such provinces,
shall belong to the local Government of the territory in which the same
are so situate; subject to any trusts that may exist in respect to any of
such lands, or to any interest of other persons in respect of the same.
57. All sums due from purchasers or lessees of such lands, mines,
or minerals, at the time of the union, shall also belong to the local
Governments.
58. All assets connected with such portions of the public debt of any
province as are assumed by the local Governments, shall also belong to
those Governments respectively.
59. The several provinces shall retain all other public property therein,
subject to the right of the General Government to assume any lands or
public property required for fortiﬁcations or the defence of the country.
- 60. The General Government shall assume all the debts and liabilities
of each province. 8
Reel. 1864.] so a 31 VIOT. c. 3.--DEBTS or PRovs. 753
61. The debt of Canada not specially assumed by Upper and Lower
Canada respectively, shall not exceed at the time of the
union - - - — - - - - $62,500,000
Nova Scotia shall enter the union with a debt not
exceeding - - - - - - - 8,000,000
And New Brunswick, with a debt not exceeding - 7,000,000
62. In case IVova Scotia or New Brunswick do not incur liabilities
beyond those for which their Governments are now bound, and which
shall make their debts at the date of union less than $8,000,000 and
$7,000,000, respectively, they shall be entitled to interest at 5 per cent.
on the amount not so incurred, in like manner as is herein-after provided
for Ivewfoundland and Prince Edward Island ; the foregoing resolution
being in no respect intended to limit the powers given to the respective
Governments of those provinces by legislative authority, but only to
limit the maximum amount of charge to be assumed by the General
Government. Provided always that the powers so conferred by the
respective Legislatures shall be exercised within ﬁve years from this
date, or the same shall then lapse.
63. Newfoundland and Prince Edward Island, not having incurred
debts equal to those of the other provinces, shall be entitled to receive,
by half-yearly payments in advance from the General Government, the
interest at ﬁve per cent. on_ the difference between the actual amount of
their respective debts at the time of the union, and the average amount
of indebtedness per head of the population of Canada, Nova Scotia, and
New Brunswick.
64. In consideration of the transfer to the General Parliament of the
powers of taxation, an annual grant in aid of each province shall be
made, equal to 80 cents per head of the population, as established by
the census of 1861, the population of Newfoundland being estimated
at 130,000. Such aid shall be in full settlement of all future demands
upon the General Government for local purposes, and shall be paid half-
yearly in advance to each province.
65. The position of New Brunswick being such as to entail large
immediate charges upon her local revenues, it is agreed that for the
period of 10 years from the time when the union takes effect, an addi-
tional allowance of $63,000 per annum shall be made to that province.
But that so long as the liability of that province remains under
$7,000,000, a deduction equal to the interest on such deﬁciency shall
be made from the $63,000.
66. In consideration of the surrender to the General Government by
lVewfoundland of all its rights in mines and minerals, and of all the
ungranted and unoccupied lands of the Crown, it is agreed that the sum
of $150,000 shall each year be paid to that province by semi-annual
payments. Provided that that colony shall retain the right of opening,
constructing, and controlling roads and bridges through any of the said
lands, subject to any laws which the General Parliament may pass in
respect of the same.
67. All engagements that may, before the union, be entered into
with the Imperial Government for the defence of the country, shall be
assumed by the General Government.
68. The General Government shall secure, without delay, the com-
pletion of the Inter-colonial Railway from Riviere-du-Loup through,
New Brunswick to Truro in Nova Scotia.
69. The communications with the N orth-western Territory, and the
improvements required for the development of the trade of the Great
West with the seaboard, are regarded by this Conference as subjects of
s 2340. 3 B
{754. 31 a 32 "VICT. c. 294-s-MED. PRACTITIONERS.‘ Uses.
Short title.
Interpretation
of Act.
Power to
Colonial
Legislatures
to enforce
registration of
persons re-
gistered under
the highest importance to the federated provinces, and shall be pro-
secuted at the earliest possible period that the state of the ﬁnances will
permit.
70. The sanction of the Imperial and local Parliaments shall be
sought for the union of the provinces, on the principles adopted by the
Conference.
'71. That Her Majesty the Queen be solicited to determine the rank
and name of the federated provinces.
'7 2. The proceedings of the Conference shall be authenticated by the
signatures of the delegates and submitted by each delegation to its own
Government, and the chairman is authorized to submit a copy to the
Governor-General for transmission to the Secretary of State for the
Colonies.
I certify that the above is a true copy of the original
Report of Resolutions adopted in Conference.
E. P. TACHE, Chairman.
31 & 82 VICT. (1868) c. 29.
' Repealed by 419 81; 50 Vict. c. 48. sec. 28.
An Act to amend the Law relating to Medical Prac-
titioners in the Colonies. [29th May 1868.]
HEREAS by the thirty-ﬁrst section of “The Medical Act,”
passed in the session holden in the twenty-ﬁrst and twenty-
second years of Her Majesty, chapter ninety, it is enacted as follows:
“ Every person registered under this Act shall be entitled, according
to his qualiﬁcation or qualiﬁcations, to practise medicine or surgery,
or medicine and surgery, as the case may be, in any part of Her
Majesty’s dominions, and to demand and recover in any Court of
Law, with full costs of suit, reasonable charges for professional aid,
advice, and visits, and the cost of any medicines or other medical
or surgical appliances rendered or supplied by him to his patients :”
And whereas it is expedient to amend the said enactment: Be it enact-
ed by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of the same, as
follows:
1, This Act may be cited as “The Medical Act Amendment Act,
1868.”
2, The term “ Colony ” shall in this Act include all of Her Majesty’s
Possessions abroad in which there shall exist a Legislature as herein-
after deﬁned, except the Channel Islands and the Isle of Man.
The term “ Colonial Legislature ” shall signify the Authority other
than the Imperial Parliament or Her Majesty in Council competent to
make Laws for any Colony.
3, Every Colonial Legislature shall have full power from time to
time to make Laws for the purpose of enforcing the registration within
its jurisdiction of persons Who have been registered under “ The Medi-
cal Act,” anything in the said Act to the contrary notwithstanding:
rovided, however, that any person who has been duly registered under
“ The Medical Act ” shall be entitled to be registered in any colony,
1868.] 31 a 32 VICT. c. 105.--RUPERT’S LAND. 7555
upon payment of the fees (if any) required for such registration, and
upon proof, in such manner as the said Colonial Legislature shall direct,
of his registration under the said Act.
See Reg. '0. College of Physicians, Ontario, 1879; 44 U. C. Q. B. 564.
[see B. N. A. Act, ante, 367, sec. 93], where it was held that a medical
practitioner, registered in England under the Medical Act, was entitled
without examination to practise in Ontario on payment of the proper
fees. The second section of the above Act, 31 Vict. c. 29, extending the
Medical Act of 1858, 21 8t 22 Vict. c. 90, by giving the word “ Colonies ”
such an extension as embraced Canada [see 49 & 50 Vict. c. 48].
31 a 32 VICT. (1868) c. 105.
[Included in Sch. to S. L. R. Act, 1893, c. 14.]
An Act for enabling Her Majesty to accept a
surrender upon terms of the lands, privileges,
and rights of “the Governor and Company of
Adventurers of England trading into Hadson’s
Bay,” and for admitting the same into the
Dominion of Canada. [314% July 1868.]
“ HEREAS by certain letters patent granted by
His late Majesty King Charles the Second in
the twenty-second year of his reign certain persons therein
named were incorporated by the name of “The Governor
and Company of Adventurers of England trading into
Hadson’s Bay,” and certain lands and territories, rights
of government, and other rights, privileges, liberties,
franchises, powers, and authorities, were thereby granted
or purported to be granted to the said Governor and
Companv in His Majesty’s dominions in N ortli America,-
“ And whereas by the British North America Act,
1867, it was (amongst other things) enacted that it
should be lawful for Her Majesty, by and with the
advice of Her Majesty’s most honourable Privy Council,
on address from the Houses of the Parliament of
Canada, to admit Rapert’s Land and the north-western
territory, or either of them, into the Union on such
terms and conditions as are in the address expressed
and as Her Majesty thinks ﬁt to approve, subject to the
provisions of the said Act :
“ he Medical
Act.”
Recital of
charter of
Hudson’s Bay
Company, 22
Car. 2.
8 B 2
7 56 31 a 32 vIcT. c. 105.-'-SUR-. or RUPEBT’IS LAND. [1868.“
Recital of '
agreement of
surrender.
Short title.
Deﬁnition of
“ Rupert’s
Land.”
Power to Her
Majesty to
accept sur-
render of lands,
&c. of the Com
pany upon cer-
tain terms.
“And whereas for the purpose of carrying into eifect
the provisions of the said British North America Act,
1867, and of admitting Rapert’s Land into the said
dominion as aforesaid. upon such terms as Her Majesty
thinks ﬁt to approve, it is expedient that the said lands,
territories, rights, privileges, liberties, franchises, powers,
and authorities, so far as the same have been lawfully
granted to the said Company, should be surrendered to
Her Majesty, her heirs and successors, upon such terms
and conditions as may be agreed upon by and between
Her Majesty and the said Governor and Company
as herein-after mentioned :”
Be it therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :
1. This Act may be cited as “Rapert’s Land Act,
1868.”
2, For the purposes of this Act the term “ Raperzf’s
Land ” shall include the whole of the lands and terri-
tories held or claimed to be held by the said Governor
and Company.
3, It shall be competent for the said Governor and
Company to surrender to Her Majesty, and for Her
Majesty by any instrument under her sign manual and
signet to accept a surrender of all or any of the lands,
territories, rights, privileges, liberties, franchises, powers,
and authorities whatsoever granted or purported to be
granted by the said Letters Patent to the said Governor
and Company within Rapert’s Land, upon such terms
and conditions as shall be agreed upon by and between
Her Majesty and the said Governor and Company;
provided, however, that such surrender shall not be
accepted by Her Majesty until the terms and conditions
upon which Rupert’s Land shall be admitted into the
said Dominion of Canada shall have been approved of
1868.] 31 a 32 VIC'1‘.c. 106.__“TB.ADE AND COMMERCE.” 757
by Her Majesty, and embodied in an address to Her
Majesty from both the Houses of the Parliament of
Canada in pursuance of the one hundred and forty-
sixth section of the British North America Act, 1867 ;
and that the said surrender and acceptance thereof shall
be null and void unless within a month from the date
of such acceptance Her Majesty does by order in Council
under the provisions of the said last-recited Act admit
Bupert’s Land into the said Domini on ; provided further,
that no charge shall be imposed by such terms upon
the Consolidated Fund of the United Kingdom.
4:. Upon the acceptance by Her Majesty of such
surrender, all rights of government and proprietary
rights, and all other privileges, liberties, franchises,
powers, and authorities whatsoever, granted or purported
to be granted by the said Letters Patent to the said Gov-
ernor and Company within Rupert’s Land, and which
shall have been so surrendered, shall be absolutely ex-
tinguished; provided that nothing herein contained
shall prevent the said Governor and Company from con-
tinuing to carry on in Rupert’s Land or elsewhere trade
and commerce.
3. It shall be competent to Her Majesty by any such
order or orders in Council as aforesaid, on address from
the Houses of the Parliament of Canada, to declare that
Rupert’s Land shall, from a date to be therein mentioned,
be admitted into and become part of the Dominion of
- Canada ; and thereupon it shall be lawful for the Par-
liament of Canada from the date aforesaid to make,
ordain, and establish within the land and territory so
admitted as aforesaid all such laws, institutions, and
ordinances, and to constitute such courts and officers,
as may be necessary for the peace, order, and good
government of Her Maj esty’s subjects and others therein :
Provided that, until otherwise enacted by the said Par-
liament of Canada, all the powers, authorities, and juris-
diction of the several Courts of Justice now established
Extinguish-
ment of all
rights of the
Company.
Power to Her
Majesty by
order in Coun-
cil to admit
Rupert’s Land
into and form
part of the
Dominion of
Canada.
Jurisdiction of
present courts
and oﬂicers
continued.
758 - 31&32VIGT.c. 129.--C()L. suavevons. [1868.
Short title.
in Rnpert’s Land, and of the several oiﬁcers thereof,
and. of all magistrates and justices now acting within
the said limits, shall continue in full force and eﬁect
therein.
' [See 32 & 33 Vict. o. 101...]
31 a 32 Visit‘. (1868) c. 129.
[From “ Be it enacted ” to “ same as follows ”
repealed by S. L. R. Act, 1893, 56 Vict. c. 14.]
Repealed by Merchant Shipping Act, 1894, 57 & 58
Vict. c. 60., 22 schedule; but see secs. 90 & 727 of that
- Act, post, where this Act is in effect re-enacted.
This was an Act to amend the law relating to the
registration of ships in British possessions, and the
appointment of surveyors in the colonies.
32 a 33 VICT. (1869) c. 10.
Secs. 3 85 8 repealed by S. L. R. Act, 1883 (No. 1), 46
86 47 Vict. c. 39. Amended by 47 & 418 Vict. c. 31.
Preamble and to “ same, as follows” repealed by S. L. R.
Act, 1893 (No. 2), 56 80 57 Vict. c. 54:.
An Act for authorizing the Removal of Prisoners
from one Colony to another for the purposes of
Punishment. [13th May 1869.]
HEREAS it is expedient to amend the law re-
lating to the removal of prisoners from one colony
to another for the purposes of punishment :
Be it enacted by the Queen’s most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual
‘and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows:
This Act may‘ be cited for all purposes as “The
Celq‘yial V Prisoners Removal Act, 1869.”
1869.] 32 a 33 VICT. c. 10.-REMOVAL OFPRISONERS. 759
2. For the purposes of this Act—
' The term “ colony” shall not include any place
within the United Kingdom, the Isle of Man, or
the Channel Islands, or within such territories as
may for the time being be vested in Her Majesty
by virtue of any Act of Parliament for the govern-
ment of India, but shall include any plantation,
territory, or settlement situate elsewhere within
Her Majesty’s dominions, and subject to the same
local government; and for the purposes of this
Act all plantations, territories, and settlements
under a central legislature shall be deemed to be
one colony under the same local government:
The term “ governor” shall include the officer for
the time being administering the government of
any colony:
The term “legislative body ” shall mean any house
of assembly or other body of persons having legis-
lative powers in the colony, and where such body
of persons consists of two separate houses it shall
include both houses, and where there are local le-
gislative bodies as well as a central legislative body
shall mean the central legislative body only.
3, The fourth section of the Act passed in the sixth
year of the reign of His late Majesty King George the
Fourth, intituled “An Act for punishing offences com-
mitted by transports kept to labour in the colonies, and
better regulating the powers of justices of the peace in
New South Wales,” is hereby repealed, except so far as
may be necessary for supporting or continuing any pro-
ceedings taken thereunder.
4,, Any two colonies may, with the sanction of an
Order of Her Majesty in Council, agree for the removal
of any prisoners under sentence or order of transporta-
tion, imprisonment, or penal servitude from one of such
colonies to the other for the purpose of their rmdergoing
in such other colony the whole or any part of their
Deﬁnition of
terms :
“ Colony :”
“ Governor :”
“ Legislative
body.”
Sec. 4 of
6 Geo. 4. c. (39.
repealed.
Prisoners may",
be removed '
from one
colony to‘ '
another for
purposes of
punishment.
760 32 a 33 VIGT. c. 10.—REMOVAL or PRISONERS. [1869.
punishment, and for the return of such prisoners to the
former colony at the expiration of their punishment, or
at such other period as may be agreed upon, upon such
- _ terms and subject to such conditions as may seem good
Removal of
prisoners to to
by warrant.
Prisoner in
legal custody
during re-
moval.
to the said colonies.
The sanction of the Order of Her Majesty in Council
may be obtained, in the case of a colony having a legis-
lative body, on an address of such body to Her Majesty,
and in the case of any colony not having a legislative
body, on an address of the Governor of such colony ; and
such sanction shall be in force as soon as such Order in
Council has been published in the colony to which it
relates.
The agreement of any one colony with another shall
for the purposes of this Act be testified by a writing
under the hand of the Governor of such colony.
5. Where the sanction of Her Majesty has been given
to any such agreement as aforesaid relating to the re-
moval of prisoners from one colony to another for the
purpose of undergoing their punishment, any prisoners
under sentence or order of transportation, imprisonment,
cr penal servitude may be removed from such one colony
to the other under the authority of a warrant signed by
the Governor, and addressed to the master of any ship,
or any other person or persons; and the person or per-
sons to whom such warrant is addressed shall have power
to convey the prisoner therein named to such other
colony, and to deliver him when there into the custody
of any authority designated in such warrant, or em-
powered by the Governor of such last-mentioned colony
to receive such prisoner.
6, Every prisoner shall, from the time of his leaving
his prison in one colony ‘to the time of his reaching his
prison in the other colony, be deemed to be in the legal
custody of the person or persons empowered to remove
him, and to be subject to the same restraint, and, ill
the event of misbehaviour, to the same punishment, as
1869.] "32,83 33 VIGT. c. 10._“ LEGAL ” cns'ronv. 761
if he had continued in prison, and as, if the, person, or
persons ‘empowered to remove him were the ga‘oler or
gao-lers of such prison; and if he escape or attempt to
escape from such custody, such. prisoner and every'per-I
son aiding or attempting to aid him in such escape,-
shall be subject to the same punishment as if such
escape or attempt to escape were an escape or attempt
to escape from prison. a - -
A prison shall mean any place of conﬁnementor- any
place where the prisoners undergo punishment. ‘
Any person punishable under this section maybe
tried and punished either in the colony from which the
prisoner is being removed, or in the colony to which he
is being removed; and the law applicable to such per-
son shall be the law of the colony in which he is tried. ;
7. Every prisoner shall, upon his delivery to the
person having lawful authority to receive him in the
colony to which he is removed, be subject within such
colony to the same laws and regulations, and shall be
dealt with in all respects in the same manner, as if he
had been tried and received the same sentence in such
colony as the sentence which has been passed on him in
the colony from which he is removed.
8, And whereas from time to time divers prisoners
have been removed from one of Her Majesty’s colonies
to another, and doubts have been entertained whether
such removals were legal, and how far such prisoners
could be legally dealt with in the colonies to which they
have been removed, and it is expedient that such doubts
should be removed : Be it enacted as follows :
The removal of any prisoner heretofore made from
one colony to another by or under the authority of the
Governor of either of such colonies, and any act done in
relation to such removal by or under such authority,
and the detention, custody, and“ treatment in either
colony of the prisoner so removed,- - shall be deemed :to
53??!‘ been as lawful and.’ ‘effectual. for all}.li'ilrposéslw'liats
Liability of
prisoner In
colony to which
he is removed.
Removals here-
tofore made to
be valid for all
purposes.
762 32 a 33 VICT. c. 101.—RUPERT’S LAND LOAN. [1869.
soever as if this Act had been passed at the time of such
removal, and had been in force in respect of both the
colonies referred to in this section, and such removal
had been duly made in pursuance of this Act. [See post,
417 85 418 Vict. c. 31.]
32 80 33 VICT. (1869) o. 11.
Amended by 416 & 17 Vict. c. 41. Sec. 5 repealed
by S. L. It. 1883, and certain words repealed by
S. L. R. Act No. 2, 1893, c. 541. Finally whole Act re-
pealed by Merchant Shipping Act, 1894, 57 & 58 Vict.
c.60.
This was an Act for amending the Law relating to
the Coasting Trade and Merchant Shipping in British
Possessions, and its chief enactments were re-enacted in
the Merchant Shipping Act of 1894, secs. 736 and 102.
32 a 33 VICT. (1869) c. 101.
Preamble and to “ same as follows ” repealed by
S. L. It. Act No. 2, 1893, 56 & 57 Vict. c. 541.
An Act for authorizing a Guarantee of a Loan to be
raised by Canada for a payment in respect of the
transfer of Rupert’s Land. [111% Any. 1869.]
31 & 32 Vict, I HEREAS by the Rnpert’s Land Act, 1868, power was given for
c. 105. the Governor and Company of Adventurers of England trading
into Hndson’s Bay (in this Act referred to as the Hudson’s Bay Com-
pany) to surrender, and for Her Majesty to accept a surrender of
Rnperl’s Land (as therein deﬁned) for the purpose of admitting the same
into the dominion of Canada :
And whereas an arrangement has been made for the surrender by the
Hudson’s Bay Company of Rnpert’s Land and for the admission thereof
into the dominion of Canada .-
And whereas part of the terms of the said arrangement were the
payment of three hundred thousand pounds to the Hudson’s Bay
Company by the Government of Canada :
And whereas the Government of Canada propose to raise the said sum
of three hundred thousand pounds by way of loan, and it is expedient to
authorize the Commissioners of Her Majesty’s Treasury, in this Act
referred to as the Treasury, to guarantee the interest of such loan:
Be it enacted by theQueen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
1869.] 32- a 33 visit‘. 6. 101.—GUARANTY or LOAN. 763
in this present Parliament assembled, and by the authority of the same,
as follows:
1, This Act may be cited as “The Canada (Rapert’s Land) Loan
Act, 1869.”
2, The Treasury may guarantee, in such manner and form as they
think ﬁt, the payment of the interest, at a rate not exceeding four per
cent., on any principal money not exceeding the sum of three hundred
thousand pounds sterling to be raised by way of loan by the Government
Short title. '
Power to
Treasury to
guarantee loan.
of Canada for the purpose of the said payment to the Hudson’s Bay I
Company.
3, The Treasury shall not give any guarantee under this Act unless
and until provision is made by an Act of the Parliament of Canada or
otherwise to the satisfaction of the T reasury—
(1.) For raising and appropriating the said loan :
(2.) For charging the consolidated revenue fund of Canada with the
payment of the principal and interest of the said loan imme-
diately after the charge of the loan for fortiﬁcations created by
an Act of the Parliament of Canada of the year one thousand
eight hundred and sixty-eight, chapter forty-one, or to be
created by any subsequent Act in respect of sums paid out of
the Consolidated Fund of the United Kingdom on account of
such last-mentioned loan:
(3.) For payment by the Government of Canada of a sinking fund at
the rate of one per centum per annum on the entire amount of
the said loan, and for charging the consolidated revenue fund
of Canada with the payment of such sinking fund immediately
after the principal and interest of the said loan :
(4.) For charging the consolidated revenue fund of Canada with any
sum issued out of the Consolidated Fund of the United
Kingdom under this Act, with interest thereon at the rate of
ﬁve per centum per annum, immediately after the sinking fund
of the said loan :
(5.) For payment of the money raised by the said loan to four
trustees, nominated from time to time, two by the Treasury and
two by the Government of Canada, and for the application of
such money under the direction of those trustees:
(6.) For remitting to the Treasury the annual sums for the sinking
fund by equal half-yearly payments, in such manner as they
from time to time direct, and for the investment and accumula-
tion thereof under their direction in the names of four trustees
nominated from time to time, two by the Treasury and two by
the Government of Canada.
4:, The said sinking fund may be invested only in such securities as
the Government of Canada and the Treasury from time to time agree
upon, and shall be applied from time to time, under the direction of the
Treasury, in discharging the principal of the said loan and the interest
arising from such securities, and the resulting income thereof shall be
invested and applied as part of such sinking fund.
5, Every Act passed by the Parliament of Canada which in any way
impairs the priority of the charge upon the consolidated revenue fund of
Canada created by that Parliament of the said loan and the interest and
sinking fund thereof, and the sums paid out of the Consolidated Fund of
the United Kingdom and the interest thereon, shall, so far only as it
Conditions of
guarantee.
Application of
sinking fund.
Alteration of
Act relating to
guaranteed
loan.
764 .33 a 34 vIc'r. ‘c. 14.—ALIENS AS SUBJECTS. [1870.
Issuejo'utof .'.' f
Consolidated
Fund.
Certiﬁcate-of '_
amount paid
out of Con-
, solidated Fund.
Accounts to be
laid before
Parliament.
Short title.
Capacity of an .
alien as to‘ - - -
property.
~Vict. c. 102. [see next Act].
impairs such‘priority, be void, unless such Act has been reserved for the
signiﬁcation of Her Majesty’s pleasure.
*6, The Treasury are hereby authorized to cause to be issued from
time to time, out of the growing produce of the Consolidated Fund of
the United Kingdom, such sums of money as may at any time be
' if- required to be paid to fulﬁl the guarantee under this Act.
"1, The Treasury may, from time to time, certify to one of Her
Majesty’s Principal Secretaries of State the amount which has been paid
‘out of the Consolidated Fund of the United Kingdom to fulﬁl the
guarantee under this Act, and the date of such payment; such certiﬁcate
shall be communicated to the Governor of Canada, and shall be conclu-
sive evidence of the amount having been so paid and of the time when
the same was so paid.
8, The Treasury shall cause to be prepared and laid before both
houses of Parliament a statement of any guarantee given under this Act,
and an account of all sums issued out of the Consolidated Fund of the
I United Kingdom for the purposes of this Act, within one month after the
same are so given or issued, if Parliament be then sitting, or if Parliament
be notsitting, then Within fourteen days after the then next meeting of
Parliament.
as a s4. VIOT. (1870) c. 14..
,, .Two last paragraphs of sec. 11 amended by 33 & 341
Amended by 35 & 36
Vict. c. 39. Sec. 18 and Schedule repealed by S. L. R.
Act 1883, 46 85 42-7 Vict. c. 39. Preamble to “same
as follows”; Sec. 5 to “Act” and from “shall not”
to “bu ,” repealed by S. L. R. 1893, No. 2, 56 & 57
,Vict. c. 541.
[See-Canada’s Naturalization Act, R. S. C. 1886, c. 113., as being sub-
stantially the same as this Act]
THE IMPERIAL A01‘.
An Act to amend the Law relating to the legal condition
' of Aliens and British Subjects. [12th May 187 0.]
T HEREAS it is expedient to amend the law relating to the le al
/ . . . . . . g
cond1t1on of ahens and Br1t1sh subjects : '
Be it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of-the same,
as follows :
1, The Act may be cited for all purposes as “ The Naturalization Act,
1870.”
Status of Aliens in the United Kingdom.
2. Real and personal property of every description may be taken, ac-
-quired. held, ﬁnd; disposed. of-hy. .an_ .alien in the same manner :in ‘all
;-res_pec_t's as by- a natural~born British subject; and atitleftoireal and
1870.] 33 a 34 vIcT. c Pia—BBL SUBJ. AS ALIEN." 765
personal property of every description may be derived through, from, or
in succession to an alien, in the same manner in all respects as through,
from, or in succession to a natural-born British subject : Provided,—
(1.) That this section shall not confer any right on an alien to hold
real property situate out of the United Kingdom, and shall not
qualify an alien for any office or for any municipal, parliamen-
tary, or other franchise:
(2.) That this section shall not entitle an alien to any right or privilege
as a British subject, except such rights and privileges in respect
of property as are hereby expressly given to him :
That this section shall not affect any estate or interest in real or
personal property to which any person has or may become en-
titled, either mediately or immediately, in possession or expect-
ancy, in pursuance of any disposition made before the passing
of this Act, or in pursuance of any devolution by law on the
death of any person dying before the passing of this Act.
3, Where Her Majesty has entered into a convention with any foreign
state to the effect that the subjects or citizens of that state who have been
naturalized as British subjects may divest themselves of their status as
such subjects, it shall be lawful for Her Majesty, by Order in Council,
to declare that such convention has been entered into by Her Majesty;
and from and after the date of such Order in Council, any person being
originally a subject or citizen of the state referred to in such Order, who
has been naturalized as a British subject, may, within such limit of time
as may be provided in the convention, make a declaration of alienage, and
from and after the date of his so making such declaration such person
shall be regarded as an alien, and as a subject of the state ,to which he
originally belonged as aforesaid.
, A declaration of alienage may be made as follows ; that is to say,-—If
the declarant be in the United Kingdom in the presence of any justice
of the peace, if elsewhere in Her Majesty’s dominions in the presence of
any judge of any court of civil or criminal jurisdiction, of any justice of
the peace, or of any other officer for the time being authorised by law in
the place in which the declarant is to administer an oath for any judicial
or other legal purpose. If out of Her Majesty’s dominions in the presence
of any officer in the diplomatic or consular service of Her Majesty.
4:, Any person who by reason of his having been born within the
dominions of Her Majesty is a natural-born subject, but who also at the
time of his birth became under the law of any foreign state a subject of
such state, and is still such subject, may, if of full age and not under any
disability, make a declaration of alienage in manner aforesaid, and from
and after the making of such declaration of alienage such person shall
cease to be a British subject. Any person who is born out of Her Ma-
jesty’s dominions of a father being a British subject may, if of full age,
and not under any disability, make a declaration of alienage in manner
aforesaid, and from and after the making of such declaration shall cease
to be aBritish subject. [13. S. C. 1886, c. 113. sec. 6.]
5, From and after the passing of this Act,- an alien shall not be entitled
to be tried by a jury de medietate linguae, but shall be triable in the same
manner as if he were a natural-born subject.
Ezrpatrz'atz'on.
6, Any British subject who has at any time before, or may at any time
after the passing of this Act, when in any foreign state and not under
any disability voluntarily become naturalized in such state, shallfrom
Power of
naturalized
aliens to divest
themselves of
their status in
certain cases.
How British-
born subject
may cease to
be such.
Alien not
entitled to jury
de medietate
linguae.
Capacity of
British subject
to renounce
allegiance to
Her Majesty.
766 33 a 34 vIc'r. c. 14.-—ALIENS & BIRTHPLAGE. [1870;
and after the time of his so having become naturalized in such foreign
state, be deemed to have ceased to be a British subject and be regarded
as an alien; Provided,—
(1.) That where any British subject has before the passing of this Act
voluntarily become naturalized in a foreign state and yet is
desirous of remaining a British subject, he may, at any time
within two years after the passing of this Act, make a declara-
tion that he is desirous of remaining a British subject, and
upon such declaration herein-after referred to as a declaration
of British nationality being made, and upon his taking the oath
of allegiance, the declarant shall be deemed to be and to have
been continually a British subject; with this qualiﬁcation, that
he shall not, when within the limits of the foreign state in which
he has been naturalized, be deemed to be a British subject,
I unless he has ceased to be a subject of that state in pursuance
of the laws thereof, or in pursuance of a treaty to that effect:
(2.) A declaration of British nationality may be made, and the oath of
allegiance be taken as follows; that is to say,—-if the declarant
be in the United Kingdom in the presence of a justice of the
peace ; if elsewhere in Her Majesty’s dominions in the presence
of any judge of any court of civil or criminal jurisdiction, of
any justice of the peace, or of any other oﬁicer for the time
being authorized by law in the place in which the declarant is
to administer an oath for any judicial or other legal purpose.
If out of Her Majesty’s dominions in the presence of any
officer in the diplomatic or consular service of Her Majesty.
.Naturalz'zatz'on and resumption of British IVatz'onalz'ty.
Certiﬁcate of '1, An alien who, within such limited time before making the applica-
natumliza-tion- tion herein-after mentioned as may be allowed by one of Her Majesty’s
Principal Secretaries of State, either by general order or on any special
occasion, has resided in the United Kingdom for a term of not less than
ﬁve years, or has been in the service of the Crown for a term of not less
than ﬁve years, and intends, when naturalized, either to reside in the
United Kingdom, or to serve under the Crown, may apply to one of Her
Majesty’s Principal Secretaries of State for a certiﬁcate of natural-
ization.
The applicant shall adduce in support of his application such evidence
of his residence or service, and intention to reside or serve, as such
Secretary of State may require. The said Secretary of State, if satisﬁed
with the evidence adduced, shall take the case of the applicant into
consideration, and may, with or without assigning any reason, give or
withhold a certiﬁcate as he thinks most conducive to the public good, and
no appeal shall lie from his decision, but such certiﬁcate shall not take
effect until the applicant has taken the oath of allegiance.
An alien to whom a certiﬁcate of naturalization is granted shall in the
United Kingdom be entitled to all political and other rights, powers, and
privileges, and be subject to all obligations, to which a natural-born
British subject is entitled or subject in the United Kingdom, with this
qualiﬁcation, that he shall not, when within the limits of the foreign
state of which he was a subject previously to obtaining his certiﬁcate of
naturalization, be deemed to be a British subject unless he has ceased to
be a subject of that state in pursuance of the laws thereof, or in
pursuance of a treaty to that eﬁect.
- The said Secretary of State may in manner aforesaid grant a
special certiﬁcate of naturalization to any person with respect to whose
1870.] 33 a 34 VICT. c. 14.-—MARRIE1) WOMEN.
767
nationality as a British subject a doubt exists, and he may specify in
such certiﬁcate that the grant thereof is made for the purpose of quieting
doubts as to the right of such person to be a British subject, and the
grant of such special certiﬁcate shall not be deemed to be any admission
that the person to whom it was granted was not previously a British
subject.
An alien who has been naturalized previously to the passing of this
Act may apply to the Secretary of State for a certiﬁcate of naturaliza-
tion under this Act, and it shall be lawful for the said Secretary of State
to grant such certiﬁcate to such naturalized alien upon the same terms
and subject to the same conditions in and upon which such certificate
might have been granted if such alien had not been previously naturalized
in the United Kingdom.
8, A natural-born British subject who has become an alien in
pursuance of this Act, and is in this Act referred to as a statutory alien,
may, on performing the same conditions and adducing the same evidence
as is required in the case of an alien applying for a certiﬁcate of national-
ity, apply to one of Her Majesty’s Principal Secretaries of State for a
certiﬁcate herein-after referred to as a certiﬁcate of re-admission to
British nationality ; re-admitting him to the status of a British subject.
The said Secretary of State shall have the same discretion as to the
giving or withholding of the certiﬁcate as in the case of a certiﬁcate of
naturalization, and an oath of allegiance shall in like manner be
required previously to the issuing of the certiﬁcate.
A statutory alien to whom a certiﬁcate of re-admission to British
nationality has been granted shall, from the date of the certiﬁcate of re-
admission, but not in respect of any previous transaction, resume his
position as a British subject; with this qualiﬁcation, that within the
limits of the foreign state of which he became a subject he shall not be
deemed to be a British subject unless he has ceased to be a subject of
that foreign state according to the laws thereof or in pursuance of a treaty
to that eﬁect.
The jurisdiction by this Act conferred on the Secretary of State in the
United Kingdom in respect of the grant of a certiﬁcate of re-admission
to British nationality, in the case of any statutory alien being in any
British possession, may be exercised by the Governor of such possession ;
and residence in such possession shall, in the case of such person, be
deemed equivalent to residence in the United Kingdom,
9, The oath in this Act referred to as the oath of allegiance shall be
in the form following; that is to say,
“I do swear that I will be faithful and bear true
allegiance to Her Majesty Queen Victoria, her heirs and successors,
according to law. So help me God.” [The oath of allegiance given
in R. S. C. c. 113. Sch. A, is slightly different, following the form- of the
oath given in 31 Geo. 3. c. 31. and taking in the words “Dominion of
Canada.”]
National status of married women and infant children.
10, The following enactments shall be made with respect to the
national status of women and children :
(1.) A married woman shall be deemed to be a subject of the state of
which her husband is for the time being a subject :
(2.) A widow being a natural-born British subject, who has become
an alien by or in consequence of her marriage, shall be deemed
Certiﬁcate of
re-admission
to British
nationality,
Form of oath
of allegiance.
National status
of married
women and
infant children.
768 as 8534 vicr. c. 14.44am. BY sec. or STATE. [1870.1
to be a statutory alien, and may as such at any time during
widowhood obtain a certiﬁcate of re-admission to British
nationality in manner provided by this Act :
(3.) Where the father being a British subject, or the mother being a
- British subject and a widow, becomes an alien in pursuance of
this Act, every child of such father or mother who during
infancy has become resident in the country where the father or
mother is naturalized, and has, according to the laws of such
country, become naturalized therein, shall be deemed to be a
subject of the state of which the father or mother has become a
. subject, and not a British subject:
- Where the father, or the mother being a widow, has obtained a
certiﬁcate of re-admission to British nationality, every child
of such father or mother who during infancy has become
resident in the British dominions with such father or mother,
shall be deemed to have resumed the position of a British
subject to all intents :
’ Where the father, or the mother being a widow, has obtained a
certiﬁcate of naturalization in the United Kingdom, every
child of such father or mother who during infancy has become
resident with such father or mother in any part of the United
Kingdom, shall be deemed to be a naturalized British subject.
Supplemental Provisions.
Regulations 11, One of Her Majesty’s Principal Secretaries of State may by
:8 1;? r9818‘ regulation provide for the following matters :—]'See Canada Act R. S. C.
ra 1011- _
1886 c. 113. s. 28; Governor in Council may make these regulations]
(1.) The form and registration of declarations of British nationality :
(2.) The form and registration of certiﬁcates of naturalization in the
United Kingdom :
(3.) The form and registration of certiﬁcates of re-admission to
British nationality :
(4.) The form and registration of declarations of alienage:
The registration .by oﬁicers in the diplomatic or consular service
of Her Majesty of the births and deaths of British subjects who
may be born or die out of Her Majesty’s dominions, and of the
marriages of persons married at any of Her Majesty’s embassies
or legations:
(6.) The transmission to the United Kingdom for the purpose of
registration or safe keeping, or of being produced as evidence
of any declarations or certiﬁcates made in pursuance of this
Act out of the United Kingdom, or of any copies of such
declarations or certiﬁcates, also of copies of entries contained
in any register kept out of the United Kingdom in pursuance
of or for the purpose of carrying into eﬁect the provisions of
this Act:
(7 With the consent of the Treasury, the imposition and application
' of fees in respect of any registration authorized to be made by
this Act, and in respect of the making any declaration or the
grant of any certiﬁcate authorized to be made or granted by
this Act.
The said Secretary of State, by a further regulation, may repeal, alter,
or add to any regulation previously made by him in pursuance of this
section.
1370.] 33 a 34 VIOT. c1. 14.-—REG. ‘BY site. or STATE. 769
Any regulation made by the said Secretary of State in pursuance of
this section shall be deemed to be Within the powers conferred by this
Act, and shall be of the same force as if it had been enacted in this Act.
but shall not, so far as respects the imposition of fees, be in force in any
British possession, and shall not, so far as respects any other matter, be
in force in any British possession in which any Act or ordinance to the
contrary of or inconsistent with any such direction may for the time
being be in force.
12, The following regulations shall be made with respect to evidence
under this Act :—
(1.) Any declaration authorized to be made under this Act may be
proved in any legal proceeding by the production of the
original declaration, or of any copy thereof certiﬁed to be a
true copy by one of Her Majesty’s Principal Secretaries of
State, or by any person authorized by regulations of one of
Her Majesty’s Principal Secretaries of State to give certiﬁed
copies of such declaration, and the production of such declara-
tion or copy shall be evidence of the person therein named as
declarant having made the same at the date in the said declara-
tion mentioned.
(2.) A certiﬁcate of naturalization may be proved in any legal pro-
ceeding by the production of the original certiﬁcate, or of any
copy thereof certiﬁed to be a true copy by one of Her Majesty’s
Principal Secretaries of State, or by any person authorized by
regulations of one of Her Majesty’s Principal Secretaries of
State to give certiﬁed copies of such certificate.
A certiﬁcate of re-admission to British nationality may be proved
in any legal proceeding by the production of the original cer-
tiﬁcate, or of any copy thereof certiﬁed to be a true copy by
one of Her Majesty’s Principal Secretaries of State, or by any
person authorized by regulations of one of Her Majesty’s
Principal Secretaries of State to give certiﬁed copies of such
certiﬁcate.
Entries in any register authorized to be made in pursuance of
this Act shall be proved by such copies and certiﬁed in such
manner as may be directed by one of Her Majesty’s Principal
Secretaries of State, and the copies of such entries shall be
evidence of any matters by this Act or by any regulation of
the said Secretary of State authorized to be inserted in the
register.
The Documentary Evidence Act, 1868, shall apply to any regu-
lation made by a Secretary of State, in pursuance of or for
the purpose of carrying into effect any of the provisions of
this Act.
111273001 laneous.
13, Nothing in this Act contained shall affect the grant of letters of
denization by Her Majesty.
14:, Nothing in this Act contained shall qualify an alien to be the
owner of a British ship.
15, Where any British subject has in pursuance of this Act become
an alien, he shall not thereby be discharged from any liability in respect
of any acts done before the date of his so becoming an alien.
S 2340. 3 C
Regulations
as to evidence.
Saving of
letters of
denization.
Saving as to
British ships.
Saving of
allegiance
prior to ex-
patriation.
770
[1870.
33 & 34 VICT. c. 14.—DISABILITY.
Power of
colonies to
legislate with
respect to
naturalization.
Deﬁnition of
terms.
16, All laws, statutes, and ordinances which may be duly made by the
legislature of any British possession1 for imparting to any person the
privileges, or any of the privileges, of naturalization, to be enjoyed by
such person within the limits of such possession, shall within such limits
have the authority of law, but shall be subject to be conﬁrmed or dis-
allowed by Her Majesty in the same manner, and subject to the same
rules in and subject to which Her Majesty has power to conﬁrm or dis-
allow any other laws, statutes, or ordinances in that possession.
1 No question of naturalization
arises in connection with the emi-
gration of British subjects to Can-
ada. Settling in the dominion
makes no more change in this re-
spect than a removal from York,
Glasgow, Swansea, or Dublin, to
London, and a new arrival has all
the privileges of a Canadian-born
fellow-subject. This is very im-
portant when compared with the
position of a person who contem-
plates emigration from the United
Kingdom to the United States. For
example :——It is required that every-
one from the British Islands who
desires to become an American citi-
zen shall take two oaths, one of in-
tention and one of fact, the latter
after ﬁve years’ residence. The
effect of these oaths is pointedly
and speciﬁcally to renounce alle-
giance to the Queen, to give up
one’s British birthright, and, in the
event of war, to become an enemy
to the land of one’s birth. In some
of the States —-the great State of
New York, for instance—a British
subject cannot hold real estate
without taking such oaths, and can-
not in any of the States exercise
any of the political rights of Ameri-
can citizenship without so doing.
On the other hand, for foreigners
the Canadian naturalization laws
are marked by a spirit of liberality,
and such persons can transact any
business and hold real estate with-
out being naturalized. By residing
three years and taking the oath of
allegiance they become naturalized
British subjects. The oath is one
of simple allegiance, and does not
require any offensive renunciations.
Naturalization confers political and
all other rights—Oﬁcz'al Hand-
book, p. 7.
17, In this Act, if not inconsistent with the context or subject-matter
thereof,—
“ Disability” shall mean the status of being an infant, lunatic, idiot,
or married woman.
“ British possession” shall mean any colony, plantation, island,
territory, or settlement within Her Majesty’s dominions, and
not within the United Kingdom, and all territories and places
under one legislature are deemed to be one British possession
for the purposes of this Act.
“The Governor of any British possession” shall include any person
exercising the chief authority in such possession.
“ Officer in the diplomatic service of Her Majesty ” shall mean any
ambassador, minister, chargé d’aﬁaires, or secretary of legation,
or any person appointed by such ambassador, minister, charge
d’aﬁaires, or secretary of legation to execute any duties im-
posed by this Act on an officer in the diplomatic service of
Her Majesty.
“ Officer in the consular service of Her Majesty ” shall mean and
include consul-general, consul, vice-consul, and consular agent,
and any person for the time being discharging the duties of
consul-general, consul, vice-consul, and consular agent.
1870.] 33 a 34 VICT. C. 14.--NATURALIZATION. 771
Repeal of Acts'mentioned in Schedule.
18, The several Acts set forth in the ﬁrst and second parts of the Repeal of Acts.
schedule annexed hereto shall be wholly repealed, and the Acts set forth
in the third part of the said schedule shall be repealed to the extent
tlgferein mentioned; provided that the repeal enacted in this Act shall not
a ect—
(1.) Any right acquired or thing done before the passing of this Act.
(2.) Any liability accruing before the passing of this Act.
(3.) Any penalty, forfeiture, or other punishment incurred or to be.
incurred in respect of any offence committed before the passing
of this Act.
(4.) The institution of any investigation or legal proceeding or any
other remedy for ascertaining or enforcing any such li.bility,
penalty, forfeiture, or punishment as aforesaid.
SCHEDULE.
NOTE—Reference is made to the repeal of the “whole Act ” where
portions have been repealed before, in order to preclude henceforth
the necessity of looking back to previous Acts.
This Schedule, so far as respects Acts prior to the reign of George the
Second, other than Acts of the Irish Parliament, refers to the
edition prepared under the direction of the Record Commission,
intituled “ The Statutes of the Realm; printed by command of
His Majesty King George the Third, in pursuance of an Address
of the House of Commons of Great Britain. From original records
and authentic manuscript-s.”
PART 1.
Acre wnoLLY REPEALED, o'rnnn THAN AcTs on THE IRISH
PARLIAMENT.
Date. ' Title.
7 Jas. 1. c. 2. - An Act that all such as are to be naturalized or
restored in blood shall ﬁrst receive the sacra-
ment of the Lord’s Supper, and the oath of
allegiance, and the oath of supremacy.
11 Will. 3. c. 6.; A11 Act to enable His Majesty’s natural born sub_

11 & 12 Wm. 3. jects to inherit the estate of their ancestors, either
(Ruff) lineal or collateral, notwithstanding their father
or mother were aliens.
13 Geo. 2. c. 7. - An Act for naturalizing such foreign Protestants
and others therein mentioned, as are settled or
shall settle in any of His Majesty’s colonies in
America.
20 Geo. 2. c. 44. - An Act to extend the provisions of an Act made
in the thirteenth year of His present Majesty’s
reign, intituled “ An Act for naturalizing foreign
Protestants and others therein mentioned, as
are settled or shall settle in any of His Majesty’s
colonies in America, to other foreign Protestants
who conscientiously scruple the taking of an
oath.”
302
772 33 a 34 vIc'r. c. 14.-NATURALIZATION. [1370.
13 Geo. 3. c. 25. - An Act to explain two Acts of Parliament, one
of the thirteenth year of the reign of His late
Majesty, “for naturalizing such foreign Pro-
testants and others as are settled or shall settle
in any of His Majesty’s colonies in America,”
and the other of the second year of the reign
of His present Majesty, “for naturalizing such
foreign Protestants as have served or shall
serve as officers or soldiers in His Majesty’s
Royal American regiment, or as engineers in
America.”
14 Geo. 3. c. 84. - An Act to prevent certain inconveniences that
_ , may happen by bills of naturalization.
16 Geo. 3. c. 52-. - An Act to declare His Majesty’s natural-born
subjects inheritable to the estates of their an-
cestors, whether lineal or collateral, in that part
of Great Britain called Scotland, notwithstand-
ing their father or mother were aliens.
6 Geo. 4. c. 67. - An Act to alter and amend an Act passed in the
seventh year of the reign of His Majesty King
James the First, intituled “ An Act that all such
as are to be naturalized or restored in blood
shall ﬁrst receive the sacrament of the Lord’s
Supper and the oath of allegiance and the oath
of supremacy.”
'7 85 8 Vict. c. ('36. - An Act to amend the laws relating to aliens.
10 & ll Vic-t. c. 83. An Act for the naturalization of aliens.
PART II.
ACTS OF THE IRISH PARLIAMENT \VHOLLY REPEALED.

Date. Title.
14 8: 15 Chas. 2. An Act for encouraging Protestant strangers and
c. 13. other to inhabit and plant in the kingdom of
Ireland.
2 Anne 0. l4. - An Act for naturalizing of all Protestant strangers
in this kingdom.
1980 20 Geo. 3. c. 29. An Act for naturalizing such foreign merchants,
traders, artiﬁcers, artizans, manufacturers, work-
men, seamen, farmers, and others as shall settle
in this kingdom.
2380 24 Geo. 3. c. 38. An Act for extending the provisions of an Act
passed in this kingdom in the nineteenth and
twentieth years of His Majesty’s reign, intituled
“ An Act for naturalizing such foreign mer-
chants, traders, artiﬁcers, artizans, manufac-
turers, workmen, seamen, farmers, and others
as shall settle in this kingdom.”
36 Geo. 3. c. 48. - An Act to explain and amend an Act, intituled
“ An Act for naturalizing such foreign merchants,
traders, artiﬁcers, artizans, manufacturers, work-
men, seamen, farmers, and others who shall
settle in this kingdom.”
1870.] 33 a 34 VIC". c. 102.—-OATH REGULATIONS. 773
PA RT III.
ACTS PARTIALLY REPEALED.
Extent of repeal.

So far as it
makes per-
~l Geo. 1. c. 9. - An Act for reviving, continuing, and
(Act of Irish amending several statutes made in
Parliament.) this kingdom heretofore tempo- petual the
rary. Act of 2
Anne c. 14-1.
6 Gee. I. c. 50. - An Act for consolidating and amend- The whole of
ing the laws relative to Jurors and sec. ~17.
Juries.
3 A’: 4 Will. ~1. An Act consolidating and amend-
c. 91. ing the laws relating to Jurors and
J m'ies in Ireland.
[See post, 38 8c 39 Vict. c. 39., Convention with US. By despatch
(in 42 Vict., Dom. Acts, part 2, p. xii.) of Lord Kimberley, 18th May
1882, aliens naturalized in British possessions are to be on the same
footing as aliens naturalized in Great Britain]
The whole of
sec. 37.
33 a at VIGT. (1870) 0.102.
Preamble repealed by S.L.It. Act, 1893 (No. 2), 56 80 57’
Vict. c. 54.
An Act to amend the Law relating to the taking of
Oaths of Allegiance on Naturalization.
[10th Aug. 1870.]
HEREAS it is expedient to amend the law relating to the taking
of oaths of allegiance under the Naturalization Act, 1870:
Be it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows:
1, The power of making regulations vested in one of Her Majesty’s
Principal Secretaries of State by the Naniralization Act, 1870, shall
extend to prescribing as follows :
(1.) The persons by whom the oaths of allegiance may be admin-
, istered under that Act:
(2.) Whether or not such oaths are to be subscribed as well as
taken, and the form in which such taking and subscription are
to be attested:
The registration of such oaths:
The persons by WllOIIl certiﬁed copies of such oaths may be
given:
The transmission to the United Kingdom for the purpose of
registration or safe keeping or of being produced as eviderce
of any oaths taken in pursuance of the said Act, out of the
United Kingdom, or of any copies of such oaths, also of
copies of entries of such oaths contained in any register kept
out of the United Kingdom in pursuance of this Act:
The proof in any legal proceeding of such oaths :
(6)
33 31 Vict.
c. 14.
Regulations as
to oaths of
allegiance.
774: 33 8t 34 VICT. c. 52.-—-EXTRADITION. [1870.
Penalty on
making false
declaration.
Construction
and short title
of Act.
Short title.
Where ar-
rangement for
surrender of
criminals
made, Order in
Council to
apply Act.
(7 With the consent of the Treasury, the imposition and applica-
tion of fees in respect of the adminstration or registration
of any such oath :
The two last paragraphs in the eleventh section of the Naturaliza-
tion Act, 1870, shall apply to regulations made under this Act.
2, Any person wilfully and corruptly making or subscribing any
declaration under the Naturalization Act, 1870, knowing the same to be
untrue in any material particular, shall be guilty of a misdemeanor, and be
liable to imprisonment with or without hard labour for any term not
exceeding twelve months.
3, This Act shall be termed the Naturalization Oath Act, 1870,
and shall be construed as one with the Naturalization Act, 1870, and
may be cited together with that Act as the Naturalization Acts, 1870.
33 a 34 VICT. (1870) c. 52.
Amended by 36 80 37 Vict. c. 60. [win'ohsee]. First
Schedule extended to Slave Trade by 36 80 37 Vict.
c. 88., sec. 27 . Sec. 27, the last pain, repealed by SLR.
Act, 1883, 46 85 47 Vict. c. 39. Preamble and to
“same as follows”; Sec. 26, so far as it deﬁnes Secre-
tary of State; Third Schedule, so far as it relates to
6 80 7 Vict. c. 75. and 25 & 26 Vict. c. 70., repealed
by S.L.It. Act (No. 2), 1893, 0.54. [See Extradition
Act of Canada, R. S. C., 1886, c. 142.]
An Act for amending the Law relating to the Extra-
dition of Criminals. [9th Aug. 1870.]
“7 HEREAS it is expedient to amend the law relating to the
surrender to foreign states of persons accused or convicted of
the commission of certain crimes within the jurisdiction of such states,
and to the trial of criminals surrendered by foreign states to this
country:
Be it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows:
Preliminary.
1, This Act may be cited as “ The Extradition Act, 1870.”
2, Where an arrangement has been with any foreign state with
respect to the surrender to such state of any fugitive criminals, Her
Majesty may, by Order in Council, direct that this Act shall apply in
the case of such foreign state. [See sec. 3, R.S.C., s. 142.]
Her Majesty may, by the same or any subsequent order, limit the
operation of the order, and restrict the same to fugitive criminals who
are in or suspected of being in the part of Her Majesty’s dominions
speciﬁed in the order, and render the operation thereof subject to such
conditions, exceptions, and qualiﬁcations as may be deemed expedient.
1870.] 33 a 31 VICT. c. 52.—SUR. OF FUGITIVE. 775
Every such order shall recite or embody the terms of the arrangement,
and shall not remain in force for any longer period than the arrange-
ment.
Every such order shall be laid before both Houses of Parliament
within six weeks after it is made, or, if Parliament be not then sitting,
within six weeks after the then next meeting of Parliament, and shall
also be published in the London Gazette.
3, The following restrictions shall be observed with respect to the
surrender of fugitive criminals.
(1.) A fugitive criminal shall not be surrendered if the offence in
respect of which his surrender is demanded is one of a political
character, or if he prove to the satisfaction of the police
magistrate or the court before whom he is brought 011 habeas
corpus, or to the Secretary of State, that the requisition for
his surrender has in fact been made with a view to try or
punish him for an offence of a political character.
(2.) A fugitive criminal shall not be surrendered to a foreign state
unless provision is made by the law of that state, or by
arrrangement, that the fugitive criminal shall not, until he
has been restored or had. an opportunity of returning to Her
Majesty’s dominions, be detained or tried in that foreign state
for any oﬁence committed prior to his surrender other than
the extradition crime proved by the facts 011 which the sur-
render is grounded:
( A fugitive criminal who has been accused of some offence within
English jurisdiction not being the offence for which his sur-
render is asked, or is undergoing sentence under any conviction
in the United Kingdom, shall not be surrendered until after
he has been discharged, whether by acquittal or on expiration
of his sentence or otherwise :
(4.) A fugitive criminal shall not be surrendered until the expira—
tion of ﬁfteen days from the date of his being committed to
prison to await his surrender:
4, A11 Order in Council for applying this Act in the case of any
foreign state shall not be made unless the arrangement—-
(1) provides for the determination of it by either party to it after
the expiration of a notice not exceeding one year ; and,
(2) is in conformity with the provisions of this Act, and in particular
with the restrictions 011 the surrender of fugitive criminals con-
tained in this Act.
5, When an order applying this Act in the case of any foreign state
has been published in the London Gazette, this Act (after the date speci-
ﬁed in the order, or if no date is speciﬁed, after the date of the publica-
tion) shall, so long as the order remains in force, but subject to the-
limitations, restrictions, conditions, exceptions, and qualiﬁcations, if any,
contained in the order, apply in the case of such foreign state. A11
Order in Council shall be conclusive evidence that the. arrangement
therein referred to complies with the requisitions of this Act, and that
this Act applies in the case of the foreign state mentioned in the order,
and the validity of such order shall not be questioned in any legal pro-
ceedings whatever.
6, lVhere this Act applies in the case of any foreign state, every fugi-
tive criminal of that state who is in or suspected of being in any part of
Her Majesty’s dominions, or that part which is speciﬁed in the order
Restrictions on
surrender of
criminals.
Provisions of
arrangement
for surrender.
Publication
and effect of
order.
Liability of
criminal to
surrender.
.776 33 & 34VIO'1‘. c. 52.—EXAM. BEFORE r. M. [1370.
Order of
Secretary of
State for issue
‘of warrant in
United King-
dom if crime
is not of a
political cha-
ractcr.
Issue of war-
rant by police
magistrate,
justice, &c.
Hearing of
case and 'evi-
dence of poli-
tical character
of crime.
applying this Act (as the case may be), shall be liable to be apprehended
and surrendered in manner provided by this Act, whether the crime in
respect of which the surrender is sought was committed before or after
the date of the order, and whether there is or is not any concurrent juris-
diction in any court of Her Majesty’s dominions over that crime.
'7, A requisition for the surrender of a fugitive criminal of any foreign
state, who is in or suspected of being in the United Kingdom, shall be
made to a Secretary of State by some person recognised by the Secretary
of State as a diplomatic representative of that foreign state. A Secretary
of State may, by order under his hand and seal, signify to a police
magistrate that such requisition has been made, and require him to issue
his warrant for the apprehension of the fugitive criminal.
If the Secretary of State is of opinion that the offence one of a
political character, he may, if he think ﬁt, refuse to send any such order,
and may also at any time order a fugitive criminal accused or convicted
of such oifence to be discharged from custody.
8, A warrant for the apprehension of a fugitive criminal, whether
accused or convicted of crime, who is in or suspected of being in the
United Kingdom, may be issued—
(1) by a police magistrate on the receipt of the said order of the Secre-
tary of State, and on such evidence as would in his opinion justify
the issue of the warrant if the crime had been committed or the
criminal convicted in England; and
(2) by a police magistrate or any justice of the peace in any part of the
United Kingdom, on such information or complaint and such
evidence or after such proceedings as would in the opinion of the
person issuing the warrant justify the issue of a ‘warrant if the
crime had been committed or the criminal convicted in that part
of the United Kingdom in which he exercises jurisdiction.
Any person issuing a warrant under this section without an order from a
Secretary of State shall forthwith send a report of the fact of such issue,
together with the evidence and information or complaint, or certiﬁed
copies thereof, to a Secretary of State, who may if he think ﬁt order the
warrant to be cancelled, and the person who has been apprehended on
the warrant to be discharged.
A fugitive criminal, when apprehended on a warrant issued without
the order of a Secretary of State, shall be brought before some person
having power to issue a warrant under this section, who shall by warrant
order him to be brought and the prisoner shall accordingly be brought
before a police magistrate.
A fugitive criminal apprehended on a warrant issued without the order
of a Secretary of State shall be discharged by the police magistrate,
unless the police magistrate, within such reasonable time as, with
reference to the circumstances of the case, he may ﬁx, receives from
a Secretary of State an order signifying that a requisition has been made
for the surrender of such criminal. »
9, \Vhen a fugitive criminal is brought before the police magistrate,
the police magistrate shall hear the case in the same manner, and have
the same jurisdiction and powers, as near as maybe, as if the prisoner
were brought before him charged with an indictable offence committed
in England.
The police magistrate shall receive any evidence which may be
tendered to show that the crime of which the prisoner is accused or
alleged to have been convicted is an offence of a political character or is
not an extraditioln crime.
1870.] 33 a 31 VICT. C. sa-uaenas eonPUs. 777
10, In the case of a fugitive criminal accused of an extradition crime,
if the foreign warrant authorizing the arrest of such criminal is duly
authenticated, and such evidence is produced as (subject to the provisions
of this Act) would, according to the law of England, justify the com-
mittal for trial of the prisoner if the crime of which he is accused had
been committed in England, the police magistrate shall commit him to
prison, but otherwise shall order him to be discharged.
In the case of a fugitive criminal alleged to have been convicted of an
extradition crime, if such evidence is produced as (subject to the pro-
visions of this Act) would, according to the law of England, prove that
the prisoner was convicted of such crime, the police magistrate shall
commit him to prison, but otherwise shall order him to be discharged.
[See sec. 11. It. S. C. ch. 142.].
If he commits such criminal to prison, he shall commit him to the
Jlz'ddlcsea' House of Detention, or to some other prison in Middlesea",
there to await the warrant of a Secretary of State for his surrender, and
shall forthwith send to a Secretary of State a certiﬁcate of the committal,
and such report upon the case as he may think ﬁt.
11, If the police magistrate commits a fugitive criminal to prison, he
shall inform such criminal that he will not be surrendered until after the
expiration of ﬁfteen days, and that he has a right to apply for a writ of
habeas corpus. [See sec. 12 11.. S. C. ch. 142.]
Upon the expiration of the said ﬁfteen days, or, if a writ of habeas
corpus is issued, after the decision of the court upon the return to the
writ, as the case may be, or after such further period as may be allowed
in either case by a Secretary of State, it shall be lawful for a Secretary
of State, by warrant under his hand and seal, to order the fugitive crimi-
nal (if not delivered on the decision of the court) to be surrendered to
such person as may in his opinion be duly authorized to receive the
fugitive criminal by the foreign state from which the requisition for the
surrender proceeded, and such fugitive criminal shall be surrendered
accordingly.
It shall be lawful for any person to whom such warrant is directed and
for the person so authorized as aforesaid to receive, hold in custody, and
convey Within the jurisdiction of such foreign state the criminal men-
tioned in the warrant; and if the criminal escapes out of any custody to
which he may be delivered on or in pursuance of such warrant, it shall
be lawful to retake him in the same manner as any person accused of
any crime against the laws of that part of Her Majesty’s dominions to
which he escapes may be retaken upon an escape.
12, If the fugitive criminal who has been committed to prison is not
surrendered and conveyed out of the United Kingdom within two
months after such committal, or, if a writ of habeas corpus is issued,
after the decision of the court upon the return to the writ, it shall be
lawful for any judge of one of Her Majesty’s superior courts at VVest-
minster, upon application made to him by or 011 behalf of the criminal,
and upon proof that reasonable notice of the intention to make such
application has been given to a Secretary of State, to order the criminal
to be discharged out of custody, unless sufficient cause is shown to the
contrary.
13, The warrant of the police magistrate issued in pursuance of this
Act may be executed in any part of the United .Kingdom in the same
manner as if the same had been originally issued or subsequently
indorsed by a justice of the peace having jurisdiction in the place where
the sameis executed.
Committal or
discharge of
prisoner.
Surrender of
fugitive to
foreign state
by warrant of
Secretary of
State.
Discharge of
persons appre—
hended if not
conveyed out
of United
Kingdom
within two
months.
Execution of
warrant of
police magis-
trate.
778 33 a 34 vie'r. c. 52.-cnIMEs ()N THE SEA. [1870.
gerogsiltions to 14:, Depositions or statements on oath, taken in a foreign state, and
6 CV“ emf" copies of such original depositions or statements, and foreign certiﬁcates
'' 7" I I I 0 I Q 1 I o .
6 85 1‘ Rt- of or judicial documents stating the fact of convlction, may, if duly
0' 76' authenticated, be received 'in evidence in proceedings under this Act.
Aflthellticfltion 15, Foreign warrants and depositions or statements on oath, and
01 deposition? copies thereof, and certiﬁcates of or judicial documents stating the fact
undfva’rlliljts' of a conviction, shall be deemed duly authenticated for the purposes of
29 30 \‘ let" this Act if authenticated in manner provided for the time being by law
"i" L1‘ or authenticated as follows:
(1.) If the warrant purports to be signed by a judge, magistrate, or
officer of the foreign state where the same was issued ;
(2.) If the depositions or statements or the copies thereof purport to
be certiﬁed under the hand of a judge, magistrate, or officer of
the foreign state where the same were taken to be the original
depositions or statements, or to be true copies thereof, as the
case may require ; and
(3.) If the certiﬁcate of or judicial document stating the fact of
conviction purports to be certiﬁed by a judge, magistrate, or
ofﬁcer of the foreign state where the conviction took place ; and
if in every case the warrants, depositions, statements, copies, certiﬁcates,
and judicial documents (as the case may be) are authenticated by the
oath of some witness or by being sealed with the ofﬁcial seal of the
minister of justice, or some other minister of state: And all courts of
justice, justices, and magistrates shall take judicial notice of such oﬂicial
seal, and shall admit the documents so authenticated by it to be received
in evidence without further proof.
Crimes committed at sea.
Jurisdiction as 16. \Vhere the crime in respect of which the surrender of a fugitive
totrimcs com- criminal is sought was committed on board any vessel 011 the high seas
muted at Sea: which comes into any port of the United Kingdom, the following pro-
visions shall have effect :
1. This Act shall be construed as if any stipendiary magistrate in
England or Ireland, and any sheriﬁ or sheriff substitute in Scot-
land, were substituted for the police magistrate throughout this
Act, except the part relating to the execution of the warrant of
the police magistrate :
2. The criminal may be committed to any prison to which the person
committing him has power to commit persons accused of the like
crime: .
3. If the fugitive criminal is apprehended on a warrant issued without
the order of a Secretary of State, he shall be brought before the
stipendiary magistrate, sheriff, or sheriff substitute who issued
the warrant, or who has jurisdiction in the port where the vessel
lies, or in the place nearest to that port.
Eagltloe criminals in British Possessions.
Proceedings 17, This Act, when applied by Order in Council,
as to fugitive . . . .
criminals in shall, unless 1t 18 otherwlse provided by such Order,
British pos-
sessions, extend to every British possession in the same mannerv
as if throughout this Act the British possession were
substituted for the United Kingdom or England, as the
1870.] 33 a 34 VICT. c. 52.—-FUGITIVES 1N GOLONIES. 7 79
case may require, but with the following modiﬁcations ;
namely,
(1.) The requisition for the surrender of a fugitive
criminal who is in or suspected of being in a
British possession may be made to the Gover-
nor of that British possession by any person
recognised by that Governor as a consul-
general, consul, or vice-consul, or (if the fugi-
tive criminal has escaped from a colony or
dependency of the foreign state on behalf of
which the requisition is made) as the Gover-
nor of such colony or dependency:
(2.) No warrant of a Secretary of State shall be re-
quired, and all powers vested in or acts autho-
rized or required to be done under this Act
by the police magistrate and the Secretary of
State, or either of them, in relation to the
surrender of a fugitive criminal, may be done
by the Governor of the British possession
alone :
Any prison in the British possession may be
substituted for a prison in Micldlesex :
A judge of any court exercising in the British
possession the like powers as the Court of
Queen’s Bench exercises in England may
exercise the power of discharging a criminal
when not conveyed within two months out
of such British possession.
18, If by any law or ordinance, made before or Savingof laws
after the passing of this Act by the Legislature of any British possession, provision is made for carrying into
effect within such possession the surrender of fugitive
criminals who are in or suspected of being in such
British possession. Her Majesty may, by the Order in
Council. applying this Act in the case of any foreign
state, or by any subsequent order, either
suspend the operation within any such British
possession of this Act, or of any part thereof, so
780 33 a 34 VICT. c. 52.——TRIAL or OFFENDERS. [1870.
Criminal sur-
rendered by
foreign state
not triable for
previous
crime.
As to use of
forms 1n sc-
eond schedule.
Revocation, &c.
of Order in
Council.
Application
of Act in
Channel
Islands and
Isle of Man.
Saving for In-
dia-n treaties.
Power of
foreign state to
obtain evidence
in United
Kingdom.
far as it relates to such foreign state, and so long
as such law or ordinance continues in force there,
_ and no longer ;
or direct that such law or ordinance, or any part
thereof, shall have eﬁect in such British posses-
sion, with or Without modiﬁcations and alterations,
as if it were part of this Act.
General Provisions.
19, Where, in pursuance of any arrangement with a foreign state, any
person accused or convicted of any crime which, if committed in England,
would be one of the crimes described in the ﬁrst schedule to this Act is
surrendered by that foreign state, such person shall not, until he has
been restored or had an opportunity of returning to such foreign state,
he triable or tried for any offence committed prior to the surrender in
any part of Her Majesty’s dominions other than such of the said crimes
as may be proved by the facts on which the surrender is grounded.
20, The forms set forth in the second schedule to this Act, or forms as
near thereto as circumstances admit, may be used in all matters to which
such forms refer, and in the case of a British possession may be so used
mutatis mutandis, and when used shall be deemed to be valid and sutli-
cient in law.
21, Her Majesty may, by Order in Council, revoke or alter, subject to
the restrictions of this Act, any Order in Council made in pursuance of
this Act, and all the provisions of this Act with respect to the original
order shall (so far as applicable) apply, mutatis mutandis, to any such
new order.
22, This Act (except so far as relates to the execution of warrants in
the Channel Islands) shall extend to the Channel Islands and Isle of
Man in the same manner as if they were part of the United Kingdom;
and the royal courts of the Channel Islands are hereby respectively
authorised and required to register this Act.
23, Nothing in this Act shall affect the lawful powers of Her Majesty
or of the Governor-General of India in Council to make treaties for the
extradition of criminals with Indian native states, or with other Asiatic
states conterminous with British India, or to carry into execution the
provisions of any such treaties made either before or after the passing of
this Act.
24;, The testimony of any witness may be obtained in relation to any
criminal matter pending in any court or tribunal in a foreign state in
like manner as it may be obtained in relation to any civil matter under
the Act of the session of the nineteenth and twentieth years of the reign
of Her present Majesty, chapter one hundred and thirteen, intituled
“ An Act to provide for Taking Evidence in Her Majesty’s Dominions
in relation to civil and commercial matters pending before foreign
tribunals; ” and all the provisions of that Act shall be construed as if the
term civil matter included a criminal matter, and the term cause included
a proceeding against a criminal: Provided that nothing in this section
shallapply in the case of any criminal matter of a political character.
1870.] 33 a savior. c. 52.--DEFINITION or TERMS. 781
25, For the purposes of this Act, every colony, dependency, and con-
stituent part of a foreign state, and every vessel of that state, shall (ex-
cept where expressly mentioned as distinct in this Act) be deemed to be
within the jurisdiction of and to be part of such foreign state.
26, In this Act, unless the context otherwise requires [For Inter-
pretation of terms in Canadian Act, see sec. 2 of It. S. C. s. 142],—
The term “ British possession ” means any colony, plantation, island,
territory, or settlement within Her Majesty’s dominions, and not
within the United Kingdom, the Channel Islands, and Isle of [Van ,-
and all colonies, Jlantations, islands, territories, and settlements
under one legislature, as herein-after deﬁned, are deemed to be one
British possession:
The term “legislature ” means any person or persons who can
exercise legislative authority in a British possession, and where
there are local legislatures as well as a central legislature, means the
central legislature only :
The term “ Governor” means any person or persons administering the
government of a British possession, and includes the Governor of
any part of India :
The term “ extradition crime” means a crime which, if committed in
Englandor within English jurisdiction, would be one of the crimes
described in the ﬁrst schedule to this Act :
The terms “ conviction” and “ convicted” do not include or refer to
a conviction which under foreign law is a conviction for contumacy,
but the term “accused person” includes a person so convicted for
contumacy :
The term “fugitive criminal” means any person accused or convicted
of an extradition crime committed within the jurisdiction of any
foreign state who is in or is suspected of being in some part of Her
Majesty’s dominions; and the term “fugitive criminal of a foreign
state” means a fugitive criminal accused or convicted of an extra-
dition crime committed within the jurisdiction of that state :
The term“ Secretary of State” means one of Her Majesty’s Principal
Secretaries of State:
The term “police magistrate” means a chief magistrate of the metro-
politan police courts, or one of the other magistrates of the metro-
politan police court in Bow Street:
The term “justice of the peace” includes in Scotland any sheriff,
sheriﬁ’s substitute, or magistrate :
The term “warrant,” in the case of any foreign state, includes any
judicial document authorising the arrest of a person accused or
convicted of crime.
Repeal ofActs.
27, The Acts speciﬁed in the third schedule to this Act are hereby
repealed as to the whole of Her Majesty’s dominions: and this Act
(with the exception of anything contained in it which is inconsistent
with the treaties referred to in the Acts so repealed) shall apply (as
regards crimes committed either before or after the passing of this Act),
in the case of the foreign states with which those treaties are made, in
the same manner as if an Order in Council referring to such treaties had
been made in pursuance of this Act, and as if such order had directed
that every law and ordinance which is in force in any British possession
with respect to such treaties should have effect as part of this Act.
Foreign state
includes (le-
pendencies.
Deﬁnition of
terms.
“ British pos-
sessions :”
“ Legislature :”
“ Governor :”
“ Extradition
crime :”
“ Conviction :"
“ Fugitive
criminal :”
“ Fugitive
criminal of a
foreign state :"
“ Secretary of
State :”
“ Police ma-
gistrate :”
“ Justice of
the peace 2”
“ \Varrant.”
Repeal of Acts
in third sche-
dule.
782 33 a 34 vic'r. c. 52.—EXTRADITION CRIMES. [1870.
Provided that if any proceedings for or in relation to the surrender of
a fugitive criminal have been commenced under the said Acts previously
to the repeal thereof, such proceedings may be completed, and the fugitive
surrendered, in the same manner as if this Act had not passed.
SCHEDULES.
FIRST SCHEDULE.
MST on CRIMES.
The following list of crimes is to be construed according to the law
existing in England, or in a British possession (as the case may be), at
the date of the alleged crime, whether by common law or by statute
made before or after the passing of this Act:
[Numbered as in Canadian Act, R. S. C., 1886, c. 142., 1st Sch.
The brackets denote the additions in the Canadian Act.]
(1) Murder, and attempt and conspiracy to murder.
(2) Manslaughter.
(3) Counterfeiting and altering money, and uttering counterfeit or
altered money.
(4) Forgery, counterfeiting, and altering and uttering what is
forged or counterfeited or altered.
(5 & 6) Embezzlement and larceny.
('7) Obtaining money or goods by false pretences.
(8) Crimes by bankrupts against bankruptcy [or insolvency (Can.)]
law.
(9) Fraud by a bailee, banker, agent, factor, trustee, or director, or
member, or public officer of any company [to which fraud is
(Can.)] made criminal by any Act for the time being in force.
(10) Rape.
(11) Abduction.
(12) Child stealing.
(13) [Kidnapping in Canadian Act, see 36 81} 37 Vict. (Imp) c. 60.]
(14) [False imprisonment in Canadian Act.] '
(15) Burglary and housebreaking [or shop breaking]
(16) Arson.
(17) Robbery with violence [with violence not in Canadian Act].
(18) Threats by letter or otherwise with intent to extort.
(19) [Perjury or Subordination of perjury in Canadian Act.]
(20) Piracy by law of nations [or in Canadian Act, Piracy by
Municipal law or law of Nations committed on board of or
against‘a vessel of a foreign state].
(21) Sinking or destroying a vessel at sea, or attempting or con-
spiring to do so. [This runs in the Canadian Act :—
“ Criminal scuttling or destroying such a vessel at sea,
whether on the high seas or on the great lakes of North
America, or attempting or conspiring to do so.”
(22) Assaults on board a ship on the high seas with intent to destroy
life or to do grievous bodily harm. [In the Canadian Act,
“Assault on board such vessel at sea, Whether on the high
seas or on the great lakes of N orth America, with intent
to destroy life or do grievous bodily harm.”]
1870.] 33 & 34 VICT. c. 52.—-MUTINY. 783
(23) Revolt or conspiracy to revolt by two or more persons on board
a ship on the high seas against the authority of the master.
[The Canadian Act is, “Revolt or conspiracy to revolt by
two or more persons on board such a vessel at sea, whether
on the high seas or on the great lakes of lVortli America
against the authority of the master.”]
[See the following Imperial Act, 36 & 3'7 Vict., 1873, c. 60., for the
following additions numbered as follows in the Canadian]
(24) [The Canadian Act proceeds, “ Any offence under either of the
following Acts, and not included in any foregoing portion of
this schedule.
(a) “ An Act respecting oifences against the person.”
(b) “ The Larceny Act.”
(a) “ An Act respecting forgery.”
(a!) “ An Act respecting offences relating to the coin.”
(e) “ An Act respecting malicious injuries to property.”]
(25) [Any offence which is, in the case of the principal oﬁender,
included in ,any foregoing portion of this schedule, and for
which the fugitive criminal, though not the principal, is liable
to be tried or punished as if he were the principa1._'|
SECOND SCHEDULE.
Form of Order of Secretary of State to the Police Magistrate.
To the chief magistrate of the metropolitan police courts 01' other
magistrate of the metropolitan police court in Bow Street
[01' the stipendiary magistrate at
WHEREAS, in pursuance of an arrangement with
referred to in an Order of Her Majesty’s Council dated the
3
day of , a requisition has been made to me, ,
one of Her Majesty’s Principal Secretaries of State, by ,
the diplomatic representative of , for the surrender of
, late of , accused [or convicted]
of the commission of the crime of within the jurisdiction
of : N ow I hereby, by this my order under my hand
and seal, signify to you that such requisition has been made, and require
you to issue your warrant for the apprehension of such fugitive, provided
that the conditions of The Extradition Act, 1870, relating to the issue
of such warrant, are in your judgment complied with.
Given under the hand and seal of the undersigned, one of Her
Majesty’s Principal Secretaries of State, this
day of 18 .
Form of Warrant of Apprehension by Order of Secretary of State.
Metropolitan
P0llce dlsmct’ To all and each of the constables of the metropolitan
[or county or
borough of 1 police force [or of the county 01' borough of to wit. J
‘WHEREAS the Right Honourable one of Her
Majesty’s Principal Secretaries of State, by order under his hand and
seal, hath signiﬁed to me that requisition hath been duly made to him for
the surrender of late of accused [or
784. 33 a 34 vIoT. c. 52.—ENG-. & CANQ: FORMS. [1870.
convicted] of the commission of the crime of within the
jurisdiction of : This is therefore to command you
in Her Majesty’s name forthwith to apprehend the said
pursuant to The Extradition Act, 1870, wherever he may be found in
the United Kingdom or Isle of Man, and bring him before me or some
other [magistrate sitting in this court (alter as required)], to show cause
why he should not be surrendered in pursuance of the said Extradition
Act, for which this shall be your warrant.
Given under my hand and seal at [Bow Street (alter as required),
one of the police courts of the metropolis] this
day of , A.D.
J. P.
[NOTE—The Canadian Act contains “Form 1, 2, and 3,” and they
appear as printed in italics]
(Form 1, Canada Act) ,
Form of Warrant of Apprehension without Order of Secretary of State.
Metropolitan
Police district’ [ To all and each of the constables of the metropolitan
l
boggggflgéty 0" police force [or of the county or borough of
To wit. ,
lVhereas it has been shown to the undersigned [In Canadian Act, a
judge under “ The Ertradition Act ”]. one of her Majesty’s justices of
the peace in and for the metropolitan police district [or the said county
or borough of ], that late of
is accused [or convicted] of the commission of the crime of
within the jurisdiction of : This is therefore to command
you in Her JVIajest-g’s name forthwith to apprehend the said
and to bring him before me or some other [In Canadian Act, judge
under the said Act] magistrate sitting at this court [or one of Her
Majesty’s justices of the peace in and for the county [or borough] of
' ] to be further dealt with according to law,for
which this shall be your warrant.
Gil-en under my hand and seal at Bow Street, one of the police
courts of the metropolis, [or _ in the County 0,-
borough aforesaid] this dag of
J. P.
Form of Warrant for bringing Prisoner before the Police
Magistrate.
County [0,. bo_}'l‘o constable of the police force of
rough] of
to wit.
WHEREAS late of accused [or alleged
to be convicted of] the commission of the crime of within
the jurisdiction of has been apprehended and brought before
theaiiidersigned, one of Her Majesty’s justices of the peace in and for
the said county [or borough] of And whereas by The
Extradition Act, 1870, he is required to be brought before the chief
magistrate of the metropolitan police court, or one of the police magis-
trates of the metropolis sitting at Bow Street, within the metropolitan
and to all other peace oﬂicers in the
said county [or borough] of
police district [or the stipendiary magistrate for ] : This
is therefore to command you the said constable in Her Majesty’s name
forthwith to take and convey the said to the metropolitan
police district [or the said ] and there carry him before
1370.] 33 a 34 vicT. c. 52.—FORM FOR SURRENDER. 7 85
the said chief magistrate or one of the police magistrates of the metro-
polis sitting at Bow Street within the said district [or before a stipendiary
magistrate sitting in the said ] to show cause why he
should not be surrendered in pursuance of The Extradition Act, 1870,
and otherwise to be dealt with in accordance with law, for which this
shall be your warrant.
Given under my hand and seal at in the county [or
borough] aforesaid, this day of . .
J. P.
(Form 2 in Canadian Act.)
Form of W'arrant of Committal. '
Mfetl'opplit‘an To one of the constables of the metro-
lfgllcgoﬁlsgl‘étf politan police force [or of the police force of the
borough of‘ county or borough of ], and to the
To wit. heeper (f the at
Be it remembered, that on this day of
in the year of our Lord late of is brought
before me [In Canadian Act, a judge under “ The Extradition
Act”] [The Canadian Act goes on, who has been apprehended under
the said Act to be dealt with according to law, and forasmuch
as I have determined that he should be surrendered in pursuance
of the said Act on the ground of his being accused [or convicted]
of the crime of within the jurisdiction of
-—instead of the above words in italics the English form continues after
the words “ before me ” :—the chief magistrate of the metropolitan police
courts [or one of the police magistrates of the metropolis] sitting at the
police court in Bow Street, within the metropolitan police district [or a
stipendiary magistrate for ,] to show cause why he should not
be surrendered in pursuance of The Extradition Act, 1870, on the ground
of his being accused [or convicted] of the commission of the crime
of within the jurisdiction of , and fonts-
much as no sufficient cause has been shown to me why he should not be
surrendered in pursuance of the said Act:
[Then the following so far as is common to both forms] This is there-
fore to command you the said constable in Her .Majesty’s name forth-
with to convey and deliver the body of the said into
the custody of the said keeper of the at ,
and you the said keeper to receive the said into your
custody, and him there safely to keep until he is thence delivered pur-
suant to the provisions of the said Extradition Act, for which this shall
be your warrant.
Given under my hand and seal at Bow Street, one of the police
courts of the metropolis, [or at the said
this day of A.D.
J. P.
(Form 3 in Canadian Act.)
Form of Warrant of [Order of Minister of Justice] Secretary of
State for Surrender of Fugitive.‘
To the keeper of [the] [at] and to .
Whereas late of accused [or con-
victed] of the commission of the crime of within the
jurisdiction of , was delivered into the custody of you
the keeper of [the] [at]
by warrant dated pursuant to The Etvtradition Act, 1870;
Now I do hereby, in pursuance of the said Act, order you the said
s 2340. 3 D
786 as & 34v101‘.c. 66.—BRITISH COLUMBIA. [1870.
Preamble.
21 8t 22 Vict.
c. 99.
keeper to deliver the body of the said into the custody
of the said , and I command you the said
to receive the said into your custody, and to convey him
within the jurisdiction of the said , and there place him
in the custody of any person or persons [or of ] appointed
by the said to receive him, for which this shall be your
warrant.
Given under the hand and seal of the undersigned [in Canadian
Act, Minister of Justice of Canada], one of Her Majesty’s Principal
Secretaries of State, this day of .
THIRD SCHEDULE.

Year and Chapter. Title.

6 8t '7 Vict. c. 7 5. - An Act for giving effect to a convention between
Her Majesty and the King of the French for
the apprehension of certain oﬁenders.
An Act for giving effect to a treaty between Her
Majesty and the United States of America for
the apprehension of certain offenders.
2 An Act for facilitating execution of the treaties
'I with France and the United States of
' America for the apprehension of certain
! oﬁenders.
25 8t 26 Vict. c. 70. - " An Act for giving effect to aconvention between
' Her Majesty and the King of Denmark for
the mutual surrender of criminals.
An Act for the amendment of the law relating
to treaties of extradition.
6 & 7 Vict. c. 76. -

8 & 9 Vict. c. 120. -
29 & 3O Vict. c. 121.

33 & 341 VICT. (1870) c. 66.
Repealed by S. L. R. (1894) 57 80 58 Vict. c. 56.
An Act to make further provision for the Government
of British Columbia. [9th Aug. 1870.]
HEREAS in pursuance of the powers vested in Her Majesty
by an Act passed in the session holden in the twenty-ﬁrst and
twenty-second years of Her Majesty’s reign, intituled “An Act to pro-
vide for the government of British Columbia,” Her Majesty did, by an
Order in Council, bearing date the eleventh day of June one thousand
eight hundred and sixty-three, constitute a Legislature, consisting of
the Governor and a Legislative Council in the said colony of British
Columbia .-
And whereas by the British Columbia Act of 1866 Vancouver Island
was united to British Columbia and made subject to the said Legislature,
and the number of the Legislative Council was increased so as to provide
for the representation of Vancouver Island :
And whereas it is expedient to alter the constitution of the said
Legislature : w _
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
1370.] 33 a 34 VICT. c. 82.-LOAN FOR DEFENCE. 7 87
and Commons, in this present Parliament assembled, and by the authority
of the same, as follows :
1, This Act may be cited as “The British Columbia Government Short‘ title.
Act, 187 O.”
2, For the purposes of this Act, the term “ Governor ” shall mean Interpretation
the oﬂicer for the time being administering the government of British Zing???‘ GOV-
Columbia. '
3, Her Majesty may, by any Order or Orders in Council, revoke the Power to Her
said recited Order in Council, and may from time to time make, and Maiestyby
when made revoke or alter, Orders in Council for constituting a Legisla- (321523012:
ture consisting of the Governor and a Legislative Council for the said ,, Legislature,
colony, and may by any such Order make such provisions and regula-
tions respecting the constitution, powers, and proceedings of the said
legislature, or either branch thereof, the number, the appointment, and
election of the members of the Legislative Council, their tenure of
office, and generally in respect to such Legislature, or either branch
thereof, as may seem to her expedient.
4;, Her Majesty may from time to time, by any such Order or Orders Power to H01‘
in Council, empower the Governor of the said colony, with or without Male-‘Sty 13‘? dele-
any conditions or restrictions, by proclamation, to determine the qualiﬁ- gzigeiiriglllhe
cation of electors and of elective members of the Legislative Council, Eomm, (,f
and to make provision for the division of the said colony into convenient British Colum-
electoral districts; for the registration of persons qualiﬁed to vote, and bia‘-
the compilation and revision of lists of all such persons; for the appoint-
ment of returning ofﬁcers; for the issuing, executing, and returning the
necessary writs for the election of members to the said Legislative
Council ; for taking the poll thereat, and determining the validity of all
disputed returns; and generally for securing the orderly, effective, and
impartial conduct of such elections, and to revoke any proclamation
previously made. [See 21 80 22 Vict. c. 99.]
33 a 34 VICT. (1370) c. 82.
Repealed by 36 80 37 Vict. c. 435. s. 9. ; which Sec. 9
has been repealed by S. L. R. Act (1883), 46 85 4'7
Vict. c. 39.
An Act to authorise the Commissioners of Her Majesty’s
Treasury to guarantee the payment of a loan to be
raised by the Government of Canada for the con-
struction of fortiﬁcations in that cotmtry.
[9th Aug. 1870.]
HEREAS by an Act of the Parliament of Canada of the year
1868, chapter forty-one, the Governor in Council was authorised
to raise by way of loan upon the guarantee of the Commissioners of Her
Maj esty’s Treasury (in this Act referred to as “ the Treasury”), for the
purpose of the construction of the fortiﬁcations therein mentioned, sums
not exceeding one million one hundred thousand pounds, and the sums
so raised, with the interest thereon, and such sums as might be necessary
to repay the said loan, either by way of a sinking fund, not exceeding
3n2
7 88 33 8t 34 VICT. e. 82.-—LOAN FOR DEFENCE.
[1870.
Short title.
Power to the
Treasury to
guarantee loan.
Conditions of
guarantee.
Application of
sinking fund.
Alteration of
Act relating to
guaranteed
loan.
Issue out of
Consolidated
Fund.
Certiﬁcate of
amount paid
out of Consoli-
dated Fund.
one per cent, or in such other way and subject to such conditions as
the Governor in Council, with the assent of the Treasury, might deter-
mine, were charged on the Consolidated Revenue Fund of Canada next
after the appropriation for the construction of the Intercolonial Railway :
And whereas it is expedient to authorise the Treasury to give such
guarantee : _
Be it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and Com-
mons, in this present Parliament assembled, and by the authority of the
same, as follows:
1, This Act may be cited as “the Canada Defences Loan Act, 1870.”
2, The Treasury may guarantee, in such manner and form as they
think ﬁt, the payment of the principal of any loan raised by the Govern-
ment of Canada in pursuance of the said Act, and of interest thereon at
a rate not exceeding four per cent.
3, The Treasury shall not give any guarantee under this Act unless
and until provision is made to the satisfaction of the Treasury—
(1.) For the due payment, custody, and application of the money
raised by the loan, in such manner as the Treasury from
time to time direct:
(2.) For remitting to the Treasury the annual sums for the sinking
fund by equal half-yearly payments, in such manner as the
Treasury from time to time direct, and for the investment
and accumulation thereof, under their direction, in the names
of four trustees nominated from time to time, two by the
Treasury and two by the Government of Canada.
4:, The said sinking fund may be invested only in such securities as
the Government of Canada and the Treasury from time to time agree
upon, and shall, whether invested or not, be applied from time to time.
under the direction of the Treasury, in discharging the principal of the
said loan; and the interest arising from such securities (including the
interest accruing in respect of any part of the loan discharged by means
of the sinking fund), and the resulting income thereof, shall be invested
and applied as part of such sinking fund.
5, Every Act passed by the Parliament of Canada which in any way
impairs the priority of the charge upon the Consolidated Revenue Fund
of Canada created by that Parliament of the said loan and the interest
and sinking fund thereof, and the sums paid out of the Consolidated
Fund of the United Kingdom and the interest thereon, shall, so far only
as it impairs such priority, be void, unless such Act has been reserved
for the signiﬁcation of Her Majesty’s pleasure.
6, The Treasury are hereby authorised to cause to be issued from
time to time out of the growing produce of the Consolidated Fund
of the United Kingdom such sums of money as may at any time be
required to be paid to fulﬁl the guarantee under this Act in respect
either of principal or interest.
'7, The Treasury may from time to time certify to one of Her
Majesty’s Principal Secretaries of State the amount which has been
paid out of the Consolidated Fund of the United Kingdom to fulﬁl the
guarantee under this Act, and the date of such payment; such certiﬁcate
shall be communicated to the Governor of Canada, and shall be conclusive
evidence of the amount having been so paid and of the time when the
same was so paid.
1870.] 33 a 34 VIOT. c. 90.—-FOR. ENLIST. ACT. 789
8, The Treasury shall cause to be prepared, and laid before both A‘Fcounts to be
Houses of Parliament, a statement of any guarantee given under this Pl‘jlbefm’e
Act, and an account of all sums issued out of the Consolidated Fund of ‘u lament
the United Kingdom for the purposes of this Act within one month
after the same are so given or issued, if Parliament be then sitting, or,
if Parliament be not sitting, then within fourteen days after the then
next meeting of Parliament.
as a sa VIOT. (1870) c. 90.
Sec. 31 repealed by S. L. R. Act, 1888, 4.6 & 47 Vict.
c. 39. Preamble; Sec. 3, from “ shall come,” where
those words ﬁrst occur, to “thereof and”; Sec. 23, the
words “ Commissioners of ” ; Sec. 26, from “ or other ”
to “time being,” and the words “to the Lord Lieu-
tenant”; Sec. 30, so far as relates to the term “ The
Secretary of State,” repealed by S. L. R. Act, 1893
(No. 2), 56 80 57 Vict. c. 54.
An Act to Regulate the Conduct of Her Majesty’s sub-
jects during the Existence of Hostilities between
Foreign States with which Her Majesty is at
Peace. [91% Aug. 1870.]
HEBEAS it is expedient to make provision for the regulation
of the conduct of Her Majesty’s subjects during the existence
of hostilities between foreign states with which Her Majesty is at
peace :
Be it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows :
Preliminary.
1, This Act may be cited for all purposes as “The Foreign Enlist- Short title of
ment Act, 1870.” Act.
2, This Act shall extend to all the dominions of Her Majesty, includ- Application of
ing the adjacent territorial waters. Act.
3, This Act shall come into operation in the United Kingdom imme- Commence-
diately on the passing thereof, and shall be proclaimed in every British ment of Act’-
possession by the Governor thereof as soon as may be after he receives
notice of this Act, and shall come into operation in that British posses-
sion on the day of such proclamation, and the time at which this Act
comes into operation in any place is, as respects such place, in this Act
referred to as the commencement of this Act.
Illegal Enlistment.
4;, If any person, Without the licence of Her Majesty, being a British Penalty on_
subject, within or without Her Majesty’s dominions, accepts or agrees to enhstment 1“
a o ‘ n l 0 ‘ T. _' ‘ _' i accept any commission or engagement in the military 01 naval selvice of ioreign State,
7 90 33 a 34 VICT. c. 90.——ILLEGAL ENLISTING. [1870.
Penalty on
leaving Her
Majesty’s do-
minions with
intent to serve
a foreign state.
Penalty on
embarking
persons under
false represen-
tations as to
service.
Penalty on
taking illegally
enlisted persons
on board ship.
any foreign state at war with any foreign state at peace with Her
Majesty, and in this Act referred to as a friendly state, or whether a
British subject or not within Her Majesty’s dominions, induces any
other person to accept or agree to accept any commission or engage-
ment in the military or naval service of any such foreign state as afore-
said,—
He shall be guilty of an offence against this Act, and shall be
punishable by ﬁne and imprisonment, or either of such punish-
ments, at the discretion of the court before which the offender
is convicted; and imprisonment, if awarded, may be either
with or without hard labour.
5, If any person, without the licence of Her Majesty, being a British
subject, quits or goes on board any ship with a view of quitting Her
Majesty’s dominions, with intent to accept any commission or engage-
ment in the military or naval service of any foreign state at war with a
friendly state, or, whether a British subject or not, within Her Majesty’s
dominions, induces any other person to quit or to go on board any
ship with a view of quitting Her _Majesty’s dominions with the like
intent,—
He shall be guilty of an offence against this Act, and shall be
punishable by ﬁne and imprisonment, or either of such punish
ments, at the discretion of the court before which the offender
is convicted; and imprisonment, if awarded, may be either
with or without hard labour.
6, If any person induces any other person to quit Her Majesty’s
dominions or to embark on any ship within Her Majesty’s dominions
under a misrepresentation or false representation of the service in which
such person is to be engaged, with the intent or in order that such person
may accept or agree to accept any commission or engagement in the
military or naval service of any foreign state at war with a friendly
state,—
H e shall be guilty of an oﬁence against this Act, and shall be
punishable by ﬁne and imprisonment, or either of such punish-
ments, at the discretion of the court before which the offender
is convicted; and imprisonment, if awarded, may be either
with or without hard labour.
'1, If the master or owner of any ship, without the licence of Her
Majesty, knowingly either takes on board, or engages to take on board,
or has on board such ship within Her Majesty’s dominions, any of the
following persons, in this Act referred to as illegally enlisted persons;
that is to say,
(1.) Any person who, being a British subject within or without the
dominions of Her Majesty, has, without the licence of Her
Majesty, accepted or agreed to accept any commission or
engagement in the military or naval service of any foreign
state at war with any friendly state;
(2.) Any person, being a British subject, who, without the licence of
Her Majesty, is about to quit Her Majesty’s dominions with
intent to accept any commission or engagement in the military
or naval service of any foreign state at war with a friendly
state;
(3.) Any person who has been induced to embark under a misrepre-
sentation or false representation of the service in which such
person is to be engaged, with the intent or in order that such
1370.] 33 a 34 VICT. c. 90.—ILLEGAL SHIPBUILDING. 791
person may accept or agree to accept any commission or engage-
ment in the military or naval service of any foreign state at
war with a friendly state;
Such master or owner shall be guilty of an offence against this Act, and
the following consequences shall ensue; that is to say,
(1.) The offender shall be punishable by ﬁne and imprisonment, or
either of such punishments, at the discretion of the court
before which the oﬁender is convicted; and imprisonment,
if awarded, may be either with or Without hard labour ; and
(2.) Such ship shall be detained until the trial and conviction or
acquittal of the master or owner, and until all penalties inﬂicted
on the master or owner have been paid, or the master or
owner has given security for the payment of such penalties
to the satisfaction of two justices of the peace, or other
magistrate or magistrates having the authority of two justices
of the peace; and
(3.) All illegally enlisted persons shall immediately on the discovery
of the offence be taken on shore, and shall not be allowed to
return to the ship.
Illegal Shipbuilding and Illegal Eapeditions.
8, If any person within Her Majesty’s dominions, without the licence
of Her Majesty, does any of the following acts; that is to say,
(1.) Builds or agrees to build, or causes to be built any ship with
intent or knowledge, or having reasonable cause to believe
that the same shall or will be employed in the military or
naval service of any foreign state at war with any friendly
state; or
Issues or delivers any commission for any ship with intent or
knowledge, or having reasonable cause to believe that the same
shall or will be employed in the military or naval service of any
foreign state at war with any friendly state ; or
Equips any ship with intent or knowledge, or having reasonable
cause to believe that the same shall or will be employed in the
military or naval service of any foreign state at war with any
friendly state; or
(4.) Despatches, or causes or allows to be despatched, any ship with
intent or knowledge, or having reasonable cause to believe
that the same shall or will be employed in the military or naval
service of any foreign state at war with any friendly state ;
Such person shall be deemed to have committed an offence against this
Act, and the following consequences shall ensue :
(1.) The offender shall be punishable by ﬁne and imprisonment, or
either of such punishments, at the discretion of the court before
which the offender is convicted ; and imprisonment, if awarded,
may be either with or without hard labour ;
(2.) The ship in respect of which any such offence is committed, and
her equipment, shall be forfeited to Her Majesty:
Provided that a person building, causing to be built, or equipping a ship
in any of the cases aforesaid, in pursuance of a contract made before the
commencement of such war as aforesaid, shall not be liable to any of the
penalties imposed by this section in respect of such building or equipping
if he satisﬁes the conditions following ; that is to say,
(1.) If forthwith upon a proclamation of neutrality being issued by
Her Majesty, he gives notice to the Secretary of State that he
Penalty on
illegal ship-
building and
illegal expe-
ditions.
792 33 & 3-1 VICT. c. 90.-—PENALTIES FOR AIDING, &-c. [1870.
is so building, causing to be built, or equipping such ship, and
furnishes such particulars of the contract and of any matters
relating -to, or done, or to be done under the contract as may
be required by the Secretary of State :
(2.) If he gives such security, and takes and permits to be taken such
other measures, if any, as the Secretary of State may prescribe
for ensuring that such ship shall not be despatched, delivered,
or removed without the licence of Her Majesty until the termi-
nation of such war as aforesaid.
Presltmptlon as 9, Where any ship is built by order of or on behalf of any foreign
to evldence
in case of state when at war with a friendly state, or is delivered to or to the order
meg-(,1 ship, of such foreign state, or any person who to the knowledge of the person
building is an agent of such foreign state, or is paid for by such foreign
state or such agent, and is employed in the military or naval service of
such foreign state, such ship shall, until the contrary is proved, be
deemed to have been built with a view to being so employed, and the
burden shall lie on the builder of such ship of proving that he did not
know that the ship was intended to be so employed in the military or
naval service of such foreign state.
Pfﬂfelty 011 10, If any person within the dominions of Her Majesty, and without
aldljii the . the licence of Her Majesty,—
21:1; 0? igllgiilfn By adding to the number of the guns, or by changing those on board
Ships. D for other guns, or by the addition of any equipment for war, increases or
augments, or procures to be increased or augmented, or is knowingly
concerned in increasing or augmenting the warlike force of any ship
which at the time of her being within the dominions of Her Majesty was
a ship in the military or naval service of any foreign state at war with
any friendly state,—
Such person shall be guilty of an offence against this Act, and shall
be punishable by ﬁne and imprisonment, or either of such
punishments, at the discretion of the court before which the
offender is convicted; and imprisonment, if awarded, may be
either with or without hard labour.
Penalty on 11, If any person within the limits of Her Majesty’s dominions and
Eigglgoolflltnng without the licence of Her Majesty,—
tary “pug Prepares or ﬁts out any naval or military expedition to proceed
tions Without against the dominions of any friendly state, the following consequences
licence. shall ensue : '
(1.) Every person engaged in such preparation or ﬁtting out, or
assisting therein, or employed in any capacity in such expedi-
tion, shall be guilty of an offence against this Act, and shall be
punishable by ﬁne and imprisonment, or either of such punish-
ments, at the discretion of the court before which the offender
is convicted; and imprisonment, if awarded, may be either with
or without hard labour.
(2.) All ships, and their equipments, and all arms and munitions of
war, used in or forming part of such expedition, shall be
forfeited to Her Majesty.
Punishment of 12, Any person who aids, abets, counsels, or procures the commission
accessorles- of any offence against this Act shall be liable to be tried and punished as
a principal offender.
Limitation of 13. The term of imprisonment to be awarded in respect of any oﬁence
term of im— against this Act shall not exceed two years.
prisonment. _ i
1870.] 33 a 31. war. C. 90.--ILLEGAL PRIZE. 793
Illegal Prize.
14;, If, during the continuance of any war in which Her Majesty may
be neutral, any ship, goods, or merchandise captured as prize of war
within the territorial jurisdiction of Her Majesty, in violation of the
neutrality of this realm, or captured by any ship which may have been
built, equipped, commissioned, or despatched, or the force of which may
have been augmented, contrary to the provisions of this Act, are brought
within the limits of Her Maj esty’s dominions by the captor, or any agent
of the captor, or by any person having come into possession thereof with
knowledge that the same was prize of war so captured as aforesaid, it
shall be lawful for the original owner of such prize, or his agent or for
any person authorized in that behalf by the Government of the foreign
state to which such owner belongs, to make application to the Court of
Admiralty for seizure and detention of such prize, and the court shall, on
due proof of the facts, order such prize to be restored.
Every such order shall be executed and carried into effect in the same
manner, and subject to the same right of appeal, as in case of any’ order
made in the exercise of the ordinary jurisdiction of such court; and in
the meantime and until a ﬁnal order has been made on such application
the court shall have power to make all such provisional and other orders
as to the care or custody of such captured ship, goods, or merchandise,
and (if the same be of perishable nature, or incurring risk of deteriora-
tion) for the sale thereof, and with respect to the deposit or investment
of the proceeds of any such sale, as may be made by such court in the
exercise of its ordinary jurisdiction.
General Provision.
15, For the purposes of this Act, a licence by Her Majesty shall be
under the sign manual of Her Majesty, or be signiﬁed by Order in
Council or by proclamation of Her Majesty.
Leyal Procedure.
16, Any offence against this Act shall, for all purposes of and incidental
to the trial and punishment of any person guilty of any such oﬁ’ence, be
deemed to have been committed either in the place in which the oﬂ'ence
was wholly or partly committed, or in any place within Her Majesty’s
dominions in which the person who committed such oﬁence may be.
1'], Any offence against this Act may be described in any indictment
or other document relating to such oﬁence, in cases where the mode of
trial requires such a description, as having been committed at the place
where it was wholly or partly committed, or it may be averred generally
to have been committed within Her Majesty’s dominions, and the venue
or local description in the margin may be that of the county, city, or
place in which the trial is held.
18, The following authorities, that is to say, in the United Kingdom
any judge of a superior court, in any other place within the jurisdicmon
of any British court of justice, such court, or, if there are more courts
than one, the court having the highest criminal jurisdiction in that place,
may, by warrant or instrument in the nature of a warrant in this section
included in the term “ warrant,” direct that any offender charged with
an offence against this Act shall be removed to some other place in Her
Majesty’s dominions for trial in cases where it appears to the authority
granting the warrant that the removal of such offender would be con-
ducive to the interests of justice, and any prisoner so removed shall be
Illegal prize
brought into
British ports
restored.
Licence by
Her Majesty,
how granted.
Jurisdiction
in respect- of
offences by
persons agains
Act.
Venue in
respect of
oﬁfences by
persons.
24 85 25 Vict.
c. 97.
Power to re-
move oﬁ'cnders
for trial.
794. 33 a s4 VICT. c. 90.—LEGAL PROCEDURE. [1870.
Jurisdiction
in respect of
forfeiture of
ships for
oﬁ‘ences against
Act.
Regulations as
to proceedings
against the
offender and
against the
ship.
Cﬂicers autho-
rized to seize
offending
ships.
Powers of offi-
cers authorized
to seize ships.
triable at the place to which he is removed, in the same manner as if his
offence had been committed at such place.
Any warrant for the purposes of this section may be addressed to the
master of any ship or to any other person or persons, and the person or
persons to whom such warrant is addressed shall have power to convey
the prisoner therein named to any place or places named in such
warrant, and to deliver him, when arrived at such place or places, into
the custody of any authority designated by such warrant.
Every prisoner shall, during the time of his removal under any such
w arrant as aforesaid, be deemed to be in the legal custody of the person
or persons empowered to remove him.
19, All proceedings for the condemnation and forfeiture of a ship, or
ship and equipment, or arms and munitions of war, in pursuance of this
Act shall require the sanction of the Secretary of State or such chief
executive authority as is in this Act mentioned, and shall be had in the
Court of Admiralty, and not in any other court : and the Court of
Admiralty shall, in addition to any power given to the court by this Act,
have in respect of any ship or other matter brought before it in pursu-
ance of this Act all powers which it has in the case of a ship or matter
brought before it in the exercise of its ordinary jurisdiction.
20, Where any offence against this Act has been committed by any
person by reason whereof a ship, or ship and equipment, or arms and
munitions of war, has or have become liable to forfeiture, proceedings
3' may be instituted contemporaneously or not, as may be thought ﬁt,
against the offender in any court having jurisdiction of the offence, and
against the ship, or ship and equipment, or arms and munitions of war,
for the forfeiture in the Court of Admiralty ; but it shall not be necessary
to take proceedings against the offender because proceedings are insti-
tuted for the forfeiture, or to take proceedings for the forfeiture because
proceedings are taken against the offender.
21, The following officers, that is to say,
(1.) Any officer of customs in the United Kingdom, subject neverthe-
less to any special or general instructions from the Commis-
sioners of Customs, or any officer of the Board of Trade,
subject nevertheless to any special or general instructions from
the Board of Trade; ~
(2.) Any officer of customs or public oﬁicer in any British possession,
subject nevertheless to any special or general instructions from
the Governor of such possession;
(3.) Any commissioned officer on full pay in the military service of
the Crown, subject nevertheless to any special or general
instructions from his commanding ofﬁcer ;
Any commissioned ofﬁcer on full pay in the naval service of the
Crown, subject nevertheless to any special or general instruc-
tions from the Admiralty or his superior ofﬁcer,
may seize or detain any ship liable to be seized or detained in pursuance
of this Act, and such officers are in this Act referred to as the “local
authority ”; but nothing in this Act contained shall derogate from the
power of the Court of Admiralty to direct any ship to be seized or
detained by any oﬁicer by whom such court may have power under its
ordinary jurisdiction to direct a ship to be seized or detained.
22, Any oﬂicer authorized to seize or detain any ship in respect of any
oﬁence against this Act may, for the purpose of enforcing such seizure or
detention, call to his aid any constable or ofﬁcers of police, or any oﬂicers
1370.] 33 a 34 vIc'r. c. ee-smznve SHIPS. 795
of Her Majesty’s army or navy or marines, or any excise otﬁcers or
officers of customs, or any harbour-master or dock-master, or any ofﬁcers
having authority by law to make seizures of ships, and may put on board
any ship so seized or detained any one or more of such officers to take
charge of the same, and to enforce the provisions of this Act, and any
oﬁ’icer seizing or detaining any ship under this Act may use force, if
necessary, for the purpose of enforcing seizure or detention, and if any
person is killed or maimed by reason of his resisting such oﬁicer in the
execution of his duties, or any person acting under his orders, such
officer so seizing or detaining the ship, or other person, shall be freely
and fully indemniﬁed as well against the Queen’s Majesty, her heirs and
successors, as against all persons so killed, maimed, or hurt.
23, If the Secretary of State or the chief executive authority is satisﬁed
that there is a reasonable and probable cause for believing that a ship
within Her Majesty’s dominions has been or is being built, commissioned,
or equipped contrary to this Act, and is about to be taken beyond the
limits of such dominions, or that a ship is about to be despatched con-
trary to this Act, such Secretary of State or chief executive authority
shall have power to issue a warrant stating that there is reasonable and
probable cause for believing as aforesaid, and upon such warrant the
local authority shall have power to seize and search such ship, and to
detain the same until it has been either condemned or released by process
of law, or in manner herein-after mentioned.
The owner of the ship so detained, or his agent, may apply to the
Court of Admiralty for its release, and the court shall as soon as possible
put the matter of such seizure and detention in course of trial between
the applicant and the Crown.
If the applicant establish to the satisfaction of the court that the ship
was not and is not being built, commissioned, or equipped, or intended
to be despatched contrary to this Act, the ship shall be released and
restored.
If the applicant fail to establish to the satisfaction of the court that the
ship was not and is not being built, commissioned, or equipped, or
intended to be despatched contrary to this Act, then the ship shall be
detained till released by order of the Secretary of State or chief executive
authority.
The court may in cases where no proceedings are pending for its con-
demnation release any ship detained under this section on the owner
giving security to the satisfaction of the court that the ship shall not be
employed contrary to this Act, notwithstanding that the applicant may
have failed to establish to the satisfaction of the court that the ship was
not and is not being built, commissioned, or intended to be despatched
contrary to this Act. The Secretary of State or the chief executive
authority may likewise release any ship detained under this section on the
owner giving security to the satisfaction of such Secretary of State or
chief executive authority that the ship shall not be employed contrary to
this Act, or may release the ship without such security if the Secretary
of State or chief executive authority think ﬁt so to release the same.
If the court be of opinion that there was not reasonable and probable
cause for the detention, and if no such cause appear in the course of the
proceedings, the court shall have power to declare that the owner is to be
indemniﬁed by the payment of costs and damages in respect of the
detention, the amount thereof to be assessed by the court, and any
amount so assessed shall be payable by the Commissioners of the
Treasury out of any moneys legally applicable for that purpose. The
Court of Admiralty shall also have power to make a like order for the
Special power
of Secretary of
State or chief
executive
authority to
detain ship.
796 33 a 34 VICT. c. 90.—FOREIGN SHIPS. [1870.
Special power
of local autho~
rity to detain
ship.
Power of
Secretary of
State or execu-
tive authority
to grant search
warrant.
Exercise of
powers of
indemnity of the owner, on the application of such owner to the court,
in a summary way, in cases where the ship is released by the order of
the Secretary of State or the chief executive authority, before any appli-
cation is made by the owner or his agent to the court for such release.
Nothing in this section contained shall affect any proceedings instituted
or to be instituted for the condemnation of any ship detained under this
section where such ship is liable to forfeiture, subject to this provision,
that if such ship is restored in pursuance of this section all proceedings
for such condemnation shall he stayed; and where the court declares
that the owner is to be indemniﬁed by the payment of costs and damages
for the detainer, all costs, charges, and expenses incurred by such owner
in or about any proceedings for the condemnation of such ship shall be
added to the costs and damages payable to him in respect of the detention
of the ship.
Nothing in this section contained shall apply to any foreign non-com-
missioned ship despatched from any part of Her Majesty’s dominions
after having come within them under stress of weather or in the course
of a peaceful voyage, and upon which ship no ﬁtting out or equipping of
a warlike character has taken place in this country.
24, Where it is represented to any local authority, as deﬁned by this
Act, and such local authority believes the representation, that there is a
reasonable and probable cause for believing that a ship within Her
Majesty’s dominions has been or is being built, commissioned, or equipped
contrary to this Act, and is about to be taken beyond the limits of such
dominions, or that a ship is about to be despatched contrary to this Act,
it shall be the duty of such local authority to detain such ship, and forth-
with to communicate the fact of such detention to the Secretary of State
or chief executive authority.
Upon the receipt of such communication the Secretary of State or
chief executive authority may order the ship to be released if he thinks
there is no causefor detaining her, but if satisﬁed that there is reasonable
and probable cause for believing that such ship was built, commissioned,
or equipped or intended to be despatched in contravention of this Act, he
shall issue his warrant stating that there is reasonable and probable cause
for believing as aforesaid, and upon such warrant being issued further
proceedings shall be had as in cases where the seizure or detention has
taken place on a Warrant issued by the Secretary of State without any
communication from the local authority.
Where the Secretary of State or chief executive authority orders the
ship to be released on the receipt of a communication from the local
authority without issuing his warrant, the owner of the ship shall be in-
demniﬁed by the payment of costs and damages in respect of the
detention upon application to the Court of Admiralty in a summary way
in like manner as he is entitled to be indemniﬁed where the Secretary of
State having issued his warrant under this Act releases the ship before
any application is made by the owner or his agent to the court for such
release.
25, The Secretary of State or the chief executive authority may, by
warrant, empower any person to enter any dockyard or other place
within Her Majesty’s dominions and inquire as to the destination of any
ship which may appear to him to be intended to be employed in the
naval or military service of any foreign state at War with a friendly state,
and to search such ship.
26, Any powers or jurisdiction by this Act given to the Secretary of
State may be exercised by him throughout the dominions of Her Majesty,
1870.] 33 a 34 vrcr. c. 90.—INTERPRETATN. CLAUSE. 797
and such powers and jurisdiction may also be exercised by any of the
following oﬁicers, in this Act referred to as the chief executive authority,
within their respective jurisdictions; that is to say,
(1.) In Ireland by the Lord Lieutenant or other the chief governor or
governors of Ireland for the time being, or the Chief Secretary
to the Lord Lieutenant :
(2.) In Jersey by the Lieutenant Governor:
(3.) In Guernsey, Alderney, and Sark, and the dependent islands by
the Lieutenant Governor :
(4.) In the Isle of Man by the Lieutenant Governor:
(5.) In any British possession by the Governor.
A copy of any warrant issued by a Secretary of State or by any ofﬁeer
authorized in pursuance of this Act to issue such warrant in Ireland, the
Channel Islands, or the Isle of Man shall be laid before Parliament.
2'], An appeal may be had from any decision of a Court of Admiralty
under this Act to the same tribunal, and in the same manner to and in
which an appeal may be had in cases within the ordinary jurisdiction of
the court as a Court of Admiralty.
28, Subject to the provisions of this Act, providing for the award of
damages in certain cases, in respect of the seizure or detention of a
ship by the Court of Admiralty no damages shall be payable, and no
ofﬁcer or local authority shall be responsible, either civilly or criminally,
in respect of the seizure or detention of any ship in pursuance of this
Act. .
29, The Secretary of State shall not, nor shall the chief executive
authority be responsible in any action or other legal proceedings what-
soever for any warrant issued by him in pursuance of this Act, or be
examinable as a witness, except at his own request, in any court of
justice in respect of the circumstances which led to the issue of the
warrant. '
Interpretation Clause.
30, In this Act, if not inconsistent with the context, the following
terms have the meanings herein-after respectively assigned to them;
that is to say,
“ Foreign state ” includes any foreign prince, colony, province, or
part of any province or people, or any person or persons exer-
cising or assuming to exercise the powers of government in or
over any foreign country, colony, province, or part of any province
or people:
“ Military service ” shall include military telegraphy, and any other em-
ployment whatever, in or in connexion with any military operation :
“ Naval service” shall, as respects a person, include service as a marine,
employment as a pilot in piloting or directing the course of a
ship of war or other ship, when such ship of war or other ship is
being used in any military or naval operation, and any employment
whatever on board a ship of war, transport, store ship, privateer or
ship under letters of marque; and as respects a ship, include any
user of a ship as a transport, store ship, privateer or ship under
letters of marque:
“ United Kingdom ” includes the Isle of Man, the Channel Islands,
and other adjacent islands :
“British possession ” means any territory, colony, or place being part
of Her Majesty’s dominions, and not part of the United Kingdom
as deﬁned by this Act :
Secretary of
State or chief
executive
authority.
Appeal from
Court of Admi -
ralty.
Indemnity to
officers.
Indemnity to
Secretary of
State or chief
executive
authority.
Interpretation
of terms.
“ Foreign
state :”
“ Military
service :”
“ Naval
service 2”
“ United
Kingdom :”
“ British
possession :”
798 33 a s4 vIc'r. c. 90.-—REPEAL or ACTS. [1870.
“ The Secretary
of State :”
“ Governor :”
“ Court of
Admiralty :”
“Ship 2”
“ Building 2”
“ Equipping :”
“ Ship and
equipment :”
“ Master.”
Repeal of
Foreign En-
listment Act.
59 Geo. 3.
c. 69.
Saving as to
commissioned
foreign ships.
Penalties not
to extend to
persons en-
tering into
military service
in Asia.
59 Geo. 3. c.
69. s. 12.
“ The Secretary of State” shall mean any one of Her Majesty’s
Principal Secretaries of State:
“ The Governor ” shall as respects India mean the Governor General
or the Governor of any presidency, and where a British possession
consists of several constituent colonies, mean the Governor General
of the whole possession, or the Governor of any of the con-
stituent colonies, and as respects any other British possession, it
shall mean the officer for the time being administering the govern-
ment of such possession; also any person acting for or in the
capacity of a Governor shall be included under the term “ Go-
vernor ”:
“ Court of Admiralty ” shall mean the High Court of Admiralty of
England or Ireland, the Court of Session of Scotland, or any
Vice-Admiralty Court within Her Majesty’s dominions:
“ Ship ” shall include any description of boat, vessel, ﬂoating battery,
or ﬂoating craft; also any description of boat, vessel, or other craft
or battery, made to move either on the surface of or under water,
or sometimes on the surface of and sometimes under water:
“Building ” in relation to a ship shall include the doing any act
towards or incidental to the construction of a ship, and all words
having relation to building shall be construed accordingly :
“ Equipping” in relation to a ship shall include the furnishing a ship
with any tackle, apparel, furniture, provisions, arms, munitions, or
stores, or any other thing which is used in or about a ship for the
purpose of ﬁtting or adapting her for the sea or for naval service,
and all words relating to equipping shall be construed accordingly :
“ Ship and equipment” shall include a ship and everything in or
belonging to a ship:
“Master” shall include any person having the charge or command
of a ship.
Repeal of Acts, and Saving Clauses.
31, From and after the commencement of this Act, an Act passed in
the ﬁfty-ninth year of the reign of His late Majesty King George the
Third, chapter sixty-nine, intituled “ An Act to prevent the enlisting or
engagement of His Majesty’s subjects to serve in foreign service and
the ﬁtting out or equipping, in His Majesty’s dominions, vessels for
warlike purposes, without His Majesty’s license,” shall be repealed:
Provided that such repeal shall not atfect_any penalty, forfeiture, or
other punishment incurred or to be incurred in respect of any oﬁence
committed before this Act comes into operation, nor the institution of
any investigation or legal proceeding, or any other remedy for enforcing
any such penalty, forfeiture, or punishment as aforesaid.
32, Nothing in this Act contained shall subject to forfeiture any
commissioned ship of any foreign state, or give to any British court over
or in respect of any ship entitled to recognition as a commissioned ship
of any foreign state, any jurisdiction which it would not have had if this
Act had not passed.
33, Nothing in this Act contained shall extend or be construed to
extend to subject to any penalty any person who enters into the military
service of any prince, state, or potentate in Asia, with such leave or
license as is for the time being required by law in the case of subjects of
Her Majesty entering into the military service of princes, states, or
potentates in Asia.
1371.] 34 a 35 VICT. c. 28.—ESTABLISHING PBOVS. 799
33 & 341 VICT. (1870) c. 102.—-[See anlap. 773.]
34 a 35 VICT. (1371) c. 33.
Amended by 449 85 50 Vict. c. 35 [which see post].
Preamble from “ Be it enacted” to “ same as follows”
repealed by S. L. B. Act, 1893 (No. 2), 56 & 57 Vict.
c. 544.
An Act respecting the establishment of Provinces
in the Dominion of Canada. [29th Jane 1871.]
HEREAS doubts have been entertained respecting
the powers of the Parliament of Canada to
establish provinces in territories admitted, or which
may hereafter be admitted, into the Dominion of Canada,
and to provide for the representation of such provinces
in the said Parliament, and it is expedient to remove
such doubts, and to vest such powers in the said Par-
liament:
Be it enacted by the Queen’s most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows :
1. This Act may be cited for all purposes as “ The Shorttiﬂo-
British North America Act, 1871.”
2, The Parliament of Canada may from time to time Parliament of
. . . Q . . v . Canada may
establish new provinces in any territories forming for establish new
' ' ' ' Provinces and
the time being part of the Domimon of Canada, but Provije fprthe
not included in any province thereof, and may, at the Const‘tutlon’
_ . _ _ &c. thereof.
time of such establishment, make provision for the con-
stitution and administration of any such province, and
for the passing of laws for the peace, order, and good
government of such province, and for its representation
in the said Parliament.
3, The Parliament of Canada may from time to time, ﬁlters-tion of
0 , , 1mits of ro-
with the consent of the Legislature of any province of vinces. P
the said Dominion, increase, diminish, or otherwise alter
the limits of such province, upon such terms and con-
800 35 a 33 vIcT. c. 29.—HM. ON rownns or CAN. [1372.
Parliament of
Canada may
legislate for
any territory
not included in
a province.
Conﬁrmation of
Acts of Parlia-
ment of Ca-
nada.
32 & 33 Vict.
(Canadian)
cap. 3. 33 Vict.
(Canadian)
cap. 3. 1
Limitation of
powers of Par-
liament of
Canada to
legislate for an
established
province.
ditions as may be agreed to by the said Legislature, and
may, with the like consent, make provision respecting
the eﬁect and operation of any such increase or diminu-
tion or alteration of territory in relation to any province
affected thereby.
4-, The Parliament of Canada may from time to time
make provision for the administration, peace, order, and
good government of any territory not for the time being
included in any province.
5, The following Acts passed by the said Parliament
of Canada, and intituled respectively,—
“An Act for the temporary government of. Rapert’s
Land and the North Western Territory when
united with Canada ;” and
“An Act to amend and continue the Act thirty-two
and thirty-three Victoria, chapter three, and to
establish and provide for the government of the
province of Manitoba,”
shall be and be deemed to have been valid and effectual
for all purposes whatsoever from the date at which they
respectively received the assent, in the Queen’s name,
of the Governor-General of the said Dominion of Canada.
6, Except as provided by the third section of this
Act, it shall not be competent for the Parliament of
Canada to alter the provisions of the last-mentioned Act
of the said Parliament in so far as it relates to the
Province of Manitoba, or of any other Act hereafter
establishing new provinces in the said Dominion, subject
always to the right of the Legislature of the Province
of Manitoba to alter from time to time the provisions of
any law respecting the qualiﬁcation of electors and
members of the Legislative Assembly and to make laws
respecting elections in the said province.
35 a 36 nor. (1872) c. 29.
Amended by 39 854.0 vIoT. 0. i3. 50 a 51 VIC-T. c. 13.
An Act to amend the Act of the Session of the
twenty-eighth and twenty-ninth years of the
1872.] 35 a 36 VIeT. c. 39.-—NATURALIZATION. 801
reign of Her present Majesty, chapter one hun-
dred and thirteen._ intituled “ An Act to autho-
rize the Payment of Retiring Pensions to
Colonial Governors.”
This Act was amended by 39 & 410 Vict. c. 43 [Isleof
Man Act], and 50 & 51 Vict. c. 13. Part of preamble
repealed by S. L. It. Act, 1893 (No. 2), c. 541.
35 a 36 VIOT. (1872) (3. 39.
Preamble, and to “same as follows,” repealed by
S. L. It. Act, 1893 (No. 2), c. 548. [See ante, p. 764,
33 & 341 Vict. c. 141.] '
An Act for amending the Law in certain cases in rela-
tion to Naturalization. [25th July 187 2.]
HEREAS by a Convention between Her Majesty and the United
States of America, supplementary to the Convention of the thir-
teenth day of May one thousand eight hundred and seventy, respecting
naturalization, and signed at IVas/zington on the twenty-third day of
February one thousand eight hundred and seventy-one, and a copy of
which is contained in the schedule to this Act, provision is made in
relation to the renunciation by the citizens and subjects therein men-
tioned of naturalization or nationality in the presence of the officers
therein mentioned :
And whereas doubts are entertained whether such provisions are alto-
gether in accordance with the Naturalization Act, 1870: And whereas
other doubts have arisen with respect to the effect of “ The N aturaliza-
tion Act, 1870,” on the rights of women married before the passing of
that Act; and it is expedient to remove such doubts:
Be it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows :
1, This Act may be cited for all purposes as the Naturalization Act,
1872, and this Act and “ The Naturalization Act, 1870,” may be cited
together as “ The Naturalization Acts, 1870 and 1872.”
2, Any renunciation of naturalization or of nationality made in
manner provided by the said supplementary Convention by the persons
and under the circumstances in the said Convention in that behalf men-
tioned shall be valid to all intents, and shall be deemed to be authorized
by the said Naturalization Act, 1870. This section shall be deemed to
take effect from the date at which the said supplementary Convention
took eﬁect.
3, Nothing contained in “ The Naturalization ‘Act, 1870,” shall
deprive any married woman of any estate or interest in real or personal
property to which she may have become entitled previously to the passing
of that Act, or affect such estate or interest to her prejudice.
311
S 2340.
Short title.
Conﬁrmation
of renunciation
of nationality
under the Con-
Ventioii.
Saving clause
as to property
of married
women.
802 35 a 36 War. 0. 39.-Us. &. ENG. oI'rIzENs. [1872.
@-
SCHEDULE.
CONVENTION between Her Majesty and the United States of America
supplementary to the Convention of May 13, 187 O, respecting Naturali~
zation.
Signed at Washington, 23rd February 1871.
[Ratiﬁcations exchanged at W’ashington, May 4, 1871.]
Whereas by the second article of the Convention between Her Majesty
the Queen of the United Kingdom of Great Britain and Ireland and
the United Statesof America for regulating the citizenship of subjects
and citizens of the contracting parties who have emigrated or may
emigrate from the dominions of the one to those of the other party,
signed at London, on the 13th of May 1870, it was stipulated that the
manner in which the renunciation by such subjects and citizens of their
naturalization, and the resumption of their native allegiance, may be
made and publicly declared, should be agreed upon by the governments
of the respective countries; Her Majesty the Queen of the United
Kingdom of Great Britain and Ireland and the President of the United
States of America, for the purpose of eﬁecting such agreement, have
resolved to conclude a supplemental Convention, and have named as
their plenipotentiaries, that is to say; Her Majesty the Queen of the
United Kingdom of Great Britain and Ireland, Sir Edward Thornton,
Knight Commander of the Most Honourable Order of the Bath, and
Her Envoy Extraordinary and Minister Plenipotentiary to the United
States of America ; and the President of the United States of America,
Hamilton Fish, Secretary of State; who have agreed as follows:
ARTICLE I.
Any person being originally a citizen of the United States who had,
previously to May 13, 1870, been naturalized as a British subject, may
at any time before August 10, 187 2, and any British subject who, at the
date ﬁrst aforesaid, had been naturalized as a citizen within the United
States, may at any time before May 12, 187 2, publicly declare his renun-
ciation of such naturalization by subscribing an instrument in writing,
substantially in the form hereunto appended, and designated as Annex A.
Such renunciation by an original citizen of the United States, of
British nationality, shall, within the territories and jurisdiction of the
United States, be made in duplicate, in the presence of any court
authorized by law for the time being to admit aliens to naturalization, or
before the clerk or prothonotary of any such court: if the declarant be
beyond the territories of the United States, it shall be made in duplicate,
before any diplomatic or consular ofﬁcer of the United States. One of
such duplicates shall remain of record in the custody of the court or
officer in whose presence it was made; the other shall be, without delay,
transmitted to the department of State.
Such renunciation, if declared by an original British subject, of his
acquired nationality as a citizen of the United States, shall, if the
declarant be in the United Kingdom of Great Britain and Ireland, be
made in duplicate, in the presence of a justice of the peace; if elsewhere
in Her Britannic Majesty’s dominions, in triplicate, in the presence of
any judge of civil or criminal jurisdiction, of any justice of the peace,
or of any other officer for the time being authorized by law, in the place.
in which the declarant is, to administer an oath for any judicial or other
legal purpose; if out of Her Majesty’s dominions, in triplicate, in the
presence of any oﬂicer in the diplomatic or consular service of Her
Majesty.
1872.] 35 & 36 VICT. c. 45.—TREATY OF WASHINGTON. 803
ARTICLE II.
The contracting parties hereby engage to communicate each to the
other, from time to time, lists of the persons who, within their respective
dominions and territories, or before their diplomatic and consular officers,
have declared their renunciation of naturalization, with the dates and
places of making such declarations, and such information as to the abode
of the declarants, and the times and places of their naturalization, as they
may have furnished.
ARTICLE III.
The present Convention shall be ratiﬁed by Her Britannic Majesty,
and by the President of the United States by and with the advice and
consent of the Senate thereof, and the ratiﬁcations shall be exchanged at
Washington as soon as may be convenient.
ANNEX A.
I, A.B.,of [insert abode],being originally a citizen of the United
States of America [or a British subject], and having become naturalized
within the dominions of Her Britannic Majesty as a British subject [or
as a citizen within the United States ofAmerica], do hereby renounce
my naturalization as a British subject [or citizen of the United States],
and declare that it is my desire to resume my nationality as a citizen of
the United States [or British subject].
(Signed) A. B.
Made and subscribed before me . . . . in [insert country or other
sub-division, and state pro-vince, colony, legation or consulate] this. . .
day of . . 18 .
(Signed) E. F., Justice of the Peace [orother title].
L.S. L.S.
35 a 33 VICT. (1372) c. 45.
Preamble, and to “ same, as follows ” repealed by
S. L. It. Act, 1893 (No. 2), c. 543. See 38 8a 39 Vict. c. 52.
An Act to carry into effect a Treaty between Her
Majesty and the United States of America.
[6th Aug. 1872.] '
HEREAS a treaty between Her Majesty and the _
United States of America was signed at Wash-
ington on the eighth day of May one thousand eight
hundred and seventy-one, and was duly ratiﬁed on the
seventeenth day of June of that year, which, amongst
other things, contained the articles set out in the sche-
dule to this Act:
And whereas an Act intituled “ An Act relating to
the Treaty of PVashington, 1871,” has been passed by
' 3 E 2
8041 35 a 36 vIcT. c. 45.--TREATY or WASHINGTON. [1872.
Suspension
of Acts at
variance with
articles.
Provision for
extension of
articles to
Newfoundland.
the Parliament of Canada for the purpose of carrying
into operation the said articles :
And whereas an Act intituled “ An Act relating to
the Treaty of Washington, 1871,” has been passed by
the Legislature of Prince Edward’s Island for the pur-
pose of carrying into operation the said articles :
And whereas the Congress of the United States of
America have not as yet passed any Act for carrying
into operation on the part of the United States the said
articles [but see 38 8t 39 Vict. c. 52. Awarded sum
paid, and a balance of nearly 12,000l. paid into the
Bri. Ct. Oh. to await distribution]:
- And whereas it is expedient to make provision by A ct
of Parliament for carrying into operation the said articles :
Be it enacted by the Queen’s most Excellent Majesty,
by and with the advice and consent of the Lords Spiritual
and Temporal, and Commons, in this present Parliament
assembled, and by the authority of the same, as follows :
1. As soon as the law required to carry into operation,
on the part of the United States of America, the articles
set out in the schedule to this Act has been passed by
the Congress of the United States, and come into force,
all Acts of Parliament and laws which operate to pre-
vent the said articles from taking full effect shall, so far
as they so operate, be suspended and have no effect
during the period mentioned in the article numbered
thirty-three in the schedule to this Act.
2, Whenever the necessary laws have been passed by
the Legislature of Newfoundland and approved by Her
Majesty for carrying into operation the articles in the
schedule to this Act so far as they relate to Newfound-
land, it shall be lawful for the officer administering the
government of Newfoundland, at any time during the
suspension, in pursuance of this Act, of the above-men-
tioned Acts of Parliament and laws, by his proclamation,
to declare that, after a time ﬁxed in such proclamation
for that purpose, this Act and the articles in the schedule
to this Act shall extend, and the same accordingly shall
1872.] 35 st 36 nor c. 45.—LIBERTIES To EIsHERMEN. 805
extend to Newfoundland, so far as they are applicable
thereto.
3, This Act may be cited as “ The Treaty of Wash-
ington Act, 1872.”
SCHEDULE.
ARTICLES of the TREATY of WASHINGTON of the 8th May 1871
which are referred to in the foregoing Act.
ARTICLE XVIII.
It is agreed by the High Contracting Parties that, in addition to the
liberty secured to the United States ﬁshermen by the Convention
between Great Britain and the United States, signed at London on the
20th day of October 1818, of taking, curing, and drying ﬁsh on certain
coasts of the British North American colonies therein deﬁned, the
inhabitants of the United States shall have, in common with the subjects
of Her Britannic Majesty, the liberty, for the term of years mentioned
in Article XXXIII. of this treaty, to take ﬁsh of every kind, except
shell-ﬁsh, on the sea coasts and shores, and in the bays, harbours, and
creeks of the provinces of Quebec, rVcua Scotia, and New Brunswick,
and the colony of Prince Edward’s Island, and of the several islands
thereunto adjacent, without being restricted to any distance from the
shore, with permission to land upon the said coasts and shores and
islands, and also upon the IPIagdalen Islands, for the purpose of drying
their nets and curing their ﬁsh ; provided that, in so doing, they do not
interfere with the rights of private property, or with British ﬁshermen,
in the peaceable use of any part of the said coasts in their occupancy for
the same purpose.
It is understood that the above-mentioned liberty applies solely to the
sea ﬁshery, and that the salmon and shad ﬁsheries, and all other ﬁsheries
in rivers and the mouths of rivers, are hereby reserved exclusively for
British ﬁshermen.
ARTICLE XIX.
It is agreed by the High Contracting Parties that British subjects
shall have, in common with the citizens of the United States, the liberty,
for the term of years mentioned in Article XXXIII. of this treaty, to
take ﬁsh of every kind, except shell-ﬁsh, on the eastern sea-coasts and
shores of the United States north of the thirty-ninth parallel of north
latitude, and on the shores of the several islands thereunto adjacent,
and in the bays, harbours, and creeks of the said sea-coasts and shores
of the United States and of the said islands, without being restricted to
any distance from the shore, with permission to land upon the said
coasts of the United States and of the islands aforesaid, for the purpose
of drying their nets and curing their ﬁsh; provided that, in so doing,
they do not interfere with the rights of private property, or with the
ﬁshermen of the United States, in the peaceable use of any part of the
said coasts in their occupancy for the same purpose.
It is understood that the above-mentioned liberty applies solely to the
sea ﬁshery, and that salmon and shad ﬁsheries, and all other ﬁsheries,
in rivers and mouth of rivers are hereby reserved exclusively for ﬁsher~
men of the United States.
ARTICLE XX.
It is agreed that the places designated by the Commissioners appointed
under the ﬁrst article of the Treaty between Great Britain and the
Short title.
806 '35 a as VICT. c. 45.—PRIVILEGES T0 U.S.’s orrs. [1872.
United States,_concluded at I/Vashington on the 5th of June 1854:, upon
the coasts of Her Britannic Majesty’s dominions and the United States,
or places reserved from the common right of ﬁshing under that treaty,
shall be regarded as in like manner reserved from the common right of
ﬁshing under the preceding articles. In case any question should arise
between the Governments of Her Britannic Majesty and of the United
States as to the common right of ﬁshing, in places not thus designated as
reserved, it is agreed that a Commission shall be appointed to designate
such places, and shall be constituted in the same manner, and have the
same powers, duties, and authority as the Commission appointed under
the said ﬁrst Article of the Treaty of the 5th of June 1854.
ARTICLE XXI.
It is agreed that, for the term of years mentioned in Article XXXIII.
of this Treaty, ﬁsh oil and ﬁsh of all kinds (except ﬁsh of the inland
lakes, and of the rivers falling into them, and except ﬁsh preserved in
oil), being the produce of the ﬁsheries of the Dominion of Canada, or of
-Prince Edward’s Island, or of the United States, shall be admitted into
each country, respectively, free of duty.
ARTICLE XXII.
Inasmuch as it is asserted by the Government of Her Britannic
Majesty that the privileges accorded to the citizens of the United States
under Article XVIII. of this Treaty are of greater value than those
accorded by Articles XIX. and XXI. of this Treaty to the subjects of
Her Britannic Majesty, and this assertion is not admitted by the Govern-
ment of the United States; it is further agreed that Commissioners
shall be appointed to determine, having regard to the privileges accorded
by the United States to the subjects of Her Britannic Majesty, as stated
in Articles XIX. and XXI. of this Treaty, the amount of any compen-
pensation which, in their opinion, ought to be paid by the Government
of the United States to the Government of Her Britannic Majesty in
return for the privileges accorded to the citizens of the United States
under Article XVIII. of this Treaty; and that any sum of money
which the said Commissioners may so award shall be paid by the United
States Government, in a gross sum, within twelve months after such
award shall have been given.
ARTICLE XXIII.
The Commissioners referred to in the preceding Article shall be
appointed in the following manner, that is to say: one Commissioner
shall be named by Her Britannic Majesty, one by the President of the
United States, and a third by Her Britannic Majesty and the President
_of the United States conjointly; and in case the third Commissioner
shall not have been so named within a period of three months from the
date when this Article shall take effect, then the third Commissioner
shall be named by the Representative at London of His Majesty the
Emperor of Austria and King of Hungary. In case of the death,
absence, or incapacity of any Commissioner, or in the event of any
Commissioner omitting or ceasing to act, the vacancy shall be ﬁlled in
the manner herein-before provided for making the original appointment,
the period of three months in case of such substitution being calculated
from the date of the happening of the vacancy.
The Commissioners so named shall meet in the City of Halifar, in the
Province of rVova Scotia, at the earliest convenient period after they have
been respectively named, and shall, before proceeding to any business,
1872.] 35 a 36 vIc'r. c. 45.—-TRADING RIGHTS. 807
make and subscribe a solemn declaration that they will impartially and
carefully examine and decide the matters referred to them to the best of
their judgment, and according to ustice and equity ; and such declaration
shall be entered on the record of their proceedings.
Each of the High Contracting Parties shall also name one person to
attend the Commission as its Agent, to represent it generally in all matters
connected with the Commission. -
ARTICLE XXIV.
The proceedings shall be conducted in such order as the Commis-
sioners appointed under Articles XXII. and XXIII. of this Treaty
shall determine. They shall be bound to receive such oral or written
testimony as either Government may present. If either Party shall
offer oral testimony, the other Party shall have the right of cross-
examination, under such rules as the Commissioners shall prescribe.’
If in the case submitted to the Commissioners either Party shall have
speciﬁed or alluded to any report or document in its own exclusive pos-
session, without annexing a copy, such Party shall be bound, if the other
Party thinks proper to apply for it, to furnish that Party with a copy
thereof; and either Party may call upon the other, through the Com-
missioners, to produce the originals or certiﬁed copies of any papers
adduced as evidence, giving in each instance such reasonable notice as
the Commisioners may require. '
The case on either side shall be closed within a period of six months
from the date of the organization of the Commission, and the Commis-
sioners shall be requested to give their award as soon as possible there-
after. The aforesaid period of six months may be extended for three
months in case of a vacancy occurring among the Commissioners under
the circumstances contemplated in Article XXIII. of this Treaty.
ARTICLE XXV.
The Commissioners shall keep an accurate record and correct-minutes
or notes of all their proceedings, with the dates thereof, and may
appoint and employ a Secretary and any other necessary ofﬁcer or
officers to assist them in the transaction of the business which may
come before them.
Each of the High Contracting Parties shall pay its own Commissioner
and Agent or Counsel; all other expenses shall be defrayed by the
two Governments in equal moieties.
ARTICLE XXX.
It is agreed that, for the term of years mentioned in Article XXXIII.
of this Treaty, subjects of Her Britannic Majesty may carry in British
vessels, without payment of duty, goods, wares, or merchandize from
one port or place Within the territory of the United States upon the St.
Lawrence, the Great Lakes, and the rivers connecting the same, to
another port or place within the territory of the United States as afore-
said; Provided that a portion of such transportation is made through
the Dominion of Canada by land carriage and in bond, under such rules
and regulations as may be agreed upon between the Government of Her
Britannic Majesty and the Government of the United States.
Citizens of the United States may for the like period carry in United
States vessels, without payment of duty, goods, wares, or merchandize
from one port or place within the Possessions of Her Britannic
Majesty in 1V01'th A meriea, to another port or place within the said
Possessions; Provided that a portion of such transportation is made
808 35 a 36 vIcr. c. 45.--EXPORT DUTY ON LUMBER. [1872.
through the territory of the United States by land carriage and in
bond, under such rules and regulations as may be agreed upon between
the Government of Her Britannic Majesty and the Government of the
United States. '
The Government of the United States further engages not to impose
any export duties on goods, wares, or merchandize carried under this
Article through the territory of the United States ; and Her Majesty’s
Government engages to urge the Parliament of the Dominion of Canada
and the Legislatures of the other Colonies not to impose any export
duties on goods, wares, or merchandize carried under this Article; and
the Government of the United States may, in case such export duties
are imposed by the Dominion of Canada, suspend, during the period that
such duties are imposed, the right of carrying granted under this Article
in favour of the subjects of Her Britannic Majesty.
The Government of the United States may suspend the right of
carrying granted in favour of the subjects of Her Britannic Majesty
under this Article, in case the Dominion of Canada should at any time
deprive the citizens of the United States of the use of the canals in the
said Dominion on terms of equality with the inhabitants of the Do-
minion, as provided in Article XXVII.
ARTICLE XXXI.
The Government of Her Britannic Majesty further engages to urge
upon the Parliament of the Dominion of Canada, and the Legislature
of rVew Brunswick, that no export duty, or other duty, shall be levied
on lumber or timber of any kind cut on that portion of the American
territory in the State of Zlfaine watered by the river St. John and its
tributaries, and ﬂoated down that river to the sea, when the same is
shipped to the United States from the province of rVew Brunswick.
And, in case any such export or other duty continues to be levied after
the expiration of one year from the date of the exchange of the ratiﬁ-
cations of this Treaty, it is agreed that the Government of the United
States may suspend the right of carrying herein—before granted under
Article XXX. of this Treaty, for such period as such export or other
duty may be levied.
ARTICLE XXXII.
It is further agreed that the provisions and stipulations of Articles
XVIII. to XXV. of this Treaty, inclusive, shall extend to the Colony
of Newfoundland, so far as they are applicable. But if the Imperial
Parliament, the Legislature of Newfoundland, or the Congress of the
United States shall not embrace the Colony of iVewfoundland in their
laws enacted for carrying the foregoing Articles into effect, then this
Article shall be of no effect, but the omission to make provision by law to
give it effect, by either of the Legislative Bodies aforesaid, shall not in
any way impair any other Articles of this Treaty.
ARTICLE XXXIII.
The foregoing Articles XVIII. to XXV. inclusive, and Article XXX.
of this Treaty, shall take effect as soon as the laws required to carry
them into operation shall have been passed by the Imperial Parliament
of Great Britain, by the Parliament of Canada, and by the Legislature
of Prince Edward’s Island on the one hand, and by the Congress of the
Tnited States on the other. Such assent having been given, the said
Articles shall remain in force for the period of ten years from the date at
which they may come into operation, and further, until the expiration of
1878.] 36 a 37 vICT. c. 45.-PUBLIO woRKs LOAN. 809
two years after either of the High Contracting Parties shall have given
notice to the other of its wish to terminate the same; each of the High
Contracting Parties being at liberty to give such notice to the other at
the end of the said period of ten years or at any time afterwards.
36 a 87 VICT. (1873) c. is.
See. 9 repealed by S. L. R. Act, 1883. In the Title,
the words “ Commissioners of Her Majesty’s,” and
from “and to repeal,” to end of title; Preamble,
and to “ same as follows ” repealed by S. L. R. Act,
1893 (No. 2), c. 541.
An Act to authorise the Commissioners of Her esty’s
Treasury to guarantee the payment of a loan to be
raised by the Government of Canada for the con-
struction of public works in that country, and to
repeal the Canada Defences Loan Act, 1870.
[2lst July 1873.]
' HEREAS one of the terms and conditions on which the colony
of British Columbia was admitted into union with the Dominion
of Canada, by an order in Council of the 16th day of May 1871, was
that the Government of the Dominion should secure the construction of
a railway) (in this Act referred to as the Paciﬁc Railway) to connect the
seaboard of British Columbia with the Railway system of Canada, in
manner more particularly mentioned in the schedules to such Order:
And whereas the Government of the Dominion of Canada propose to
raise by way of loan for the purpose of the construction of the Pacific
Railway, and also for the improvement and enlargement of the Canadian
canals, a sum of money not exceeding eight million pounds :
And whereas by an Act of the Parliament of Canada of the year 1868,
chapter forty-one, the Governor in Council was authorised to raise by
way of loan upon the guarantee of the Commissioners of Her Majesty’s
Treasury (in this Act referred to as “the Treasury”), for the purpose
of the construction of the fortiﬁcations therein mentioned, sums not
exceeding one million one hundred thousand pounds:
And whereas by the Canada Defences Loan Act, 1870, the Treasury
were authorised to guarantee the payment. of the principal of such loan
and of interest thereon at a rate not exceeding four per cent. :
And whereas no portion of the last-mentioned loan has been raised,
and no such guarantee has been given :
And whereas it is expedient to authorise the Treasury to guarantee
a portion, not exceeding two millions ﬁve hundred thousand pounds, of
such loan of eight million pounds for the above-mentioned purposes, and
to guarantee a further portion of the said loan not exceeding one million
one hundred thousand pounds in substitution for a guarantee of a loan
under the Canada Defences Loan Act, 1870:
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
33 & 34 Vict.
c. 82.
810 36 a 37 VIOT. c. 45.-PUBLIO WORKS LOAN. [1873.
Short title.
Power to Trea-
sury to guaran-
tee loan.
Conditions of
guarantee.
Application of
sinking fund.
and Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows:
1, This Act may be cited as “The Canada (Public Works) Loan
Act,” 1873.”
2, The Treasury may guarantee, in such manner and form and on
such conditions as they think ﬁt, the payment of the principal of and
interest (at a rate not exceeding four per cent. per annum) on all or any
part of any loan raised by the Government of Canada for the purpose
of the construction of the Paciﬁc Railway, and the improvement and
enlargement of the Canadian canals, so that the total amount so gua-
ranteed from time to time do not exceed three million six hundred
thousand pounds.
3, The Treasury shall not give any guarantee under this Act unless
and until provision is made by an Act of the Parliament of Canada or
otherwise to the satisfaction of the Treasury-—
(1.) For raising and appropriating the said proposed loan of eight
million pounds :
(2.) For charging the consolidated revenue fund of Canada with
the payment of the principal and interest of any loan gua-
ranteed by the Treasury under this Act, immediately after
the charge of the loan for fortiﬁcations created by the said
Act of the Parliament of Canada of the year one thousand
eight hundred and sixty-eight, chapter forty-one:
(3.) For payment by the Government of Canada of a sinking fund
at the rate of one per cent. per annum on the entire amount
of the loan guaranteed by the Treasury under this Act, and
for charging the consolidated revenue fund of Canada with
the payment of such sinking fund immediately after the prin-
cipal and interest of the last-mentioned loan :
(4.) For charging the consolidated revenue fund of Canada with
any sum issued out of the Consolidated Fund of the United
Kingdom under this Act with interest thereon at the rate
of ﬁve per cent. per annum, immediately after the said
sinking fund : '
(5.) For the due payment and application of the money raised by
any loan guaranteed by the Treasury under this Act, in
such manner as the Treasury from time to time direct:
(6.) For remitting to the Treasury the annual sums for the sinking
fund by equal half-yearly payments, in such manner as they
from time to time direct, and for the investment and accu-
mulation thereof under their direction in the names of four
trustees nominated from time to time, two by the Treasury
and two by the Government of Canada.
The Treasury may guarantee the loan in such portions as they think
ﬁt, and, before guaranteeing any portion of the loan after the ﬁrst, shall
satisfy themselves that the portion of the loan previously guaranteed
(or an equal amount of any other loan of the Government of Canada),
together with an equal amount of that portion of the said loan of eight
million pounds which is not guaranteed by the Treasury, has been or is
in the course of being spent for the purposes mentioned in this Act.
4;, The said sinking fund may be invested only in such securities as
the Government of Canada and the Treasury from time to time agree
upon, and shall, Whether invested or not, be applied from time to time,
under the direction of the Treasury, in discharging the principal of the
loan guaranteed by the Treasury under this Act, and the interest arising
1874.] 37 a 38 vIoT. c. 26.—-CAN. BONDS. 811
from such securities (including the interest accruing in respect of any
part of any loan discharged by means of the sinking fund), and the
resulting income thereof shall be invested and applied as part of such
sinking fund.
5, Every Act passed by the Parliament of Canada which in any way Alteration of
impairs the priority of the charge upon the consolidated revenue fund of Act- l‘clating to
Canada created by that Parliament of the loan guaranteed under this guammtecd
Act, and the interest and sinking fund thereof, and the sums paid out of Dan‘
the Consolidated Fund of the United Kingdom and the interest thereon,
shall, so far only as it impairs such priority, be void, unless such Act has
been reserved for the signiﬁcation of Her Majesty’s pleasure.
6, The Treasury are hereby authorised to cause to be issued from Issue out of
time to time, out of the growing produce of the Consolidated Fund of Consolidated
the United Kingdom, such sums of money as may at any time be und'
required to be paid to fulﬁl the guarantee under this Act in respect
either of principal or interest.
'7, The Treasury may from time to time certify to one of Her Certiﬁcated
Majesty’s Principal Secretaries of State the amount which has been amount Pmd .
paid out of the Consolidated Fund of the United Kingdom to fulﬁl the egfFgggsoh'
guarantee under this Act, and the date of such payment; such certiﬁcate ( '
shall be communicated to the Governor of Canada, and shall be conclusive
evidence of the amount having been so paid and of the time when the
same was so paid.
8, The Treasury shall cause to be prepared and laid before both Accounts to
Houses of Parliament a statement of any guarantee given under this be 1%1‘1 before
Act, and an account of all sums issued out of the Consolidated Fund of Parhament'
the United Kingdom for the purposes of this Act, within one month
after the same are so given or issued, if Parliament be then sitting, or
if Parliament be not sitting, then within fourteen days after the then
next meeting of Parliament.
9, The Canada Defences Loan Act, 1870, is hereby repealed. Repeal of
33 & 34 Vict.
c. 82.
37 a as VICT. (1874.) c. 26.
Sec. 4 amended by 413 & 4A1 Vict. c. 20. s. 54, and by
415 & 416 Vict. c. 72. s. 17.
An Act to make provision respecting the Stamp Duty
on Transfers of Stock of the Government of Canada.
[30th Jane 1874.]
HEREAS certain stock of the Government of Canada, known
by the name of Canadian consolidated ﬁve per cent. stock, and
herein-after referred to as existing Canadian stock, is inscribed in books
kept in the United Kingdom, and it is expedient to reduce the stamp
duty payable on the transfer of such stock and of other stock of the
same Government which may hereafter be so inscribed, and to enable
the Government of Canada to compound for the stamp duty on such
transfers:
Be it enacted by the Queen’s most Excellent Majesty, by and with the
advice and consent of the Lords Spiritual and Temporal, and Commons,
in this present Parliament assembled, and by the authority of the same,
as follows :
‘ 1, This Act may be cited as “ The Canadian Stock Stamp Act, 1874.” Shm'ftitm
812 37 a 38 c. 26., 40 a 41 vIc'r. c. 59.—-BONDS, &c. [1874—7.
Stamp. duty on 2, In lieu of the stamp duty payable on the transfer of stock of the
calladla'n m‘ Government of Canada inscribed in books kept in the United Kingdom,
scribed stock‘ there shall be charged on every transfer of such stock, whether on sale
or otherwise, a stamp duty of two shillings and sixpence for every full
sum of one hundred pounds, and also for any fractional part of one
hundred pounds, of the nominal amount of stock transferred.
Composition 3, By way of composition for stamp duty chargeable on transfers of
fol‘ “$111113? existing Canadian stock, the Government of Canada may pay to the
“Ellis. erslo k Commissioners of Inland Revenue the sum of three thousand six hun-
exlbtmg “0° ' dred and ninet’ d ' ' ' 1 r 1
y-one poun s two shillings and sixpence, anc rom an(
after such payment transfers of such stock shall be exempted from stamp
duty.
Composition 4:, By way of composition for stamp duty chargeable on transfers of
fol‘ stamp on any stock of the Government of Canada which maybe hereafter inscribed
:Piznsfefi of; in books kept in the United Kingdom, the Government of Canada may
u ure 5 Oc ' pay to the Commissioners of Inland Revenue a sum calculated at the
rate of seven shillings and sixpence for every full sum of one hundred
pounds, and also for every fractional part of one hundred pounds of
stock inscribed in the name of each holder, and from and after such
payment transfers of such stock shall be exempted from stamp duty.(1)
1 See 40 & 41 Vict. c. 59. below. c. 20., and sec. 17 of 45 8t 46
And for the amendment of these Vict. c. 72. also given below,
Acts, sec. 54 of 43 8t 44 Vict. pp. 818, 819.
The following Acts are given here for convenience :—
4.0 a 4.1 vIc'r. (1877) c. 59.
The Words, “ Commissioners of Her Majesty’s,”
wherever they occur in secs. 1, 19, and 20; sec. 26
from “ The Act of the Session ” to “ 1835.” Repealed
by S. L. R. Act, 1894, 57 8t 58 Vict. c. 56.
An Act to amend the Law with respect to the Trans-
fer of Stock forming part of the Public Debt of any
Colony, and the Stamp Duty on such Transfer.
[14th Aug. 1877
BE it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows:
Application of Act.
Registration by 1. Where provision has been made by the legislature of a colony and
‘6010113’ .‘Ylth otherwise for the inscription and transfer in a register kept in the
of? £112,313: United Kingdom by some bank, colonial officer, or person (which bank,
venue of colo_ ofﬁcer, or person is in this Act referred to as the registrar) of any stock
ISM—7.] 37 a 38 c. 26., 40 a 41 vrc'r. c. 59.-BONDS, &c. 813
forming the whole or part of the public debt of such colony, and the
Government of such colony cause a declaration under the seal of such
colony, or by some person in that behalf authorised under that seal,
stating such provision, and identifying the stock with respect to which
it has been made, to be left with the Commissioners of Inland Revenue,
those Commissioners, upon payment of the proper fee, shall record the
same; and such record and declaration shall be open to inspection at all
reasonable times, in manner directed by the said Commissioners, upon
payment of the proper fee.
Upon such declaration being recorded, this Act shall apply to the
stock speciﬁed in the declaration, and this Act shall not apply to any
colonial stock not speciﬁed in a declaration recorded as provided by this
section.
The proper fee for the purposes of this section shall be such fee not
exceeding, in the case of recording a declaration, ﬁve pounds, and in
the case of inspection ﬁve shillings, as the Commissioners of Her
Majesty’s Treasury from time to time ﬁx, and shall be paid into the
Exchequer.
Stamp Duty on Colonial Stock to which this Act applies.
2, On the transfer in the register, whether on sale or otherwise, of
colonial stock to which this Act applies, there shall be charged in lieu of
any other stamp duty, a stamp duty of two shillings and sixpence for
every full sum of one hundred pounds, and also for every fraction less
than one hundred pounds, or over and above one hundred pounds or
a multiple of one hundred pounds, of the nominal amount of stock
transferred :
Provided that a transfer made for effecting the appointment of a new
trustee shall not be charged with any higher duty than ten shillings.
3, Upon payment to the Commissioners of Inland Revenue by the
government of a colony by way of composition for the stamp duty on
the transfer of the stock of that colony to which this Act applies, of
seven shillings and sixpence for every full sum of one hundred pounds,
and for every fraction less than one hundred pounds, or over and above
one hundred pounds or a multiple of one hundred pounds, of the nominal
amount of such stock inscribed in the name of each and every stock-
holder, transfers of the stock in respect of which such composition has
been paid shall be exempt from stamp duty.
The registrar shall from time to time give to the Commissioners of
Inland Revenue such information as they may require respecting the
stock of any colony inscribed in the register kept by him.
Transfers and Dividends.
4:, Colonial stock to which this Act applies, while inscribed in a
register kept in the United Kingdom, shall be transferred as follows :
(1.) The transfer shall be made only in the register, and shall be
signed by the transferor,—or, if he is absent, by his attorney
thereunto lawfully authorised by some writing executed under
his hand and seal and attested :
(2.) The transferee may, if he thinks ﬁt, underwrite his acceptance of
the transfer:
(3,) The executors or administrators of a deceased stockholder shall
alone be recognised by the registrar as having any title to the
stock or any dividend thereon :
nial stock to
which this Act
applies.
Stamp duty on
stock to-which
this Act ap~
plies.
Composition
for stamp duty
on transfer of
stock to which
this Act ap-
plies.
Transfer of
colonial stock
to which this
Act applies.
814 37- & 38 c. 26,, 40 a 41 vIc'r. c. 59.--BEARER cEETs. [1874-7.
case of infancy,
Stamp duty on
stock certiﬁcate
l
(4.) The person becoming entitled to any stock or dividend thereon in
consequence of the death, bankruptcy, or marriage of the stock-
holder, or of any devolution in law from the stockholder, or
otherwise than by transfer of the stock, shall produce such evi-
dence of his title as may be reasonably required by the regis-
trar, but the person _so becoming entitled to any stock may
transfer such stock to another person without being registered
himself.
5, The registrar may, for such period not exceeding fourteen days as
he may from time to time ﬁx previous to each payment of dividend on
any colonial stock to which this Act applies, close the register of that
stock as regards transfers, upon giving not less than seven days’ notice
of such closing by advertisement in some newspaper circulating generally
in the place where the register is kept.
The persons who on the day of such closing are inscribed as stock-
holders shall as between them and their transferees of colonial stock be
entitled to the dividend then next payable thereon.
6, Where colonial stock to which this Act applies is standing in the
name of an infant or person of unsound mind jointly with any person
not under legal disability, a letter of attorney for the receipt of the
dividends on the stock shall be sufficient authority in that behalf if given
under the hand and seal of the person not under disability, and attested.
The registrar, before acting on the letter of attorney, may require
proof to his satisfaction of the alleged infancy or unsoundness of mind
by the declaration of competent persons made under the Statutory
Declarations Act, 1835, or in such other manner as he may reasonably
require.
Stock Certiﬁcates to Bearer.
7, The registrar, if so authorised by the government of a colony
issuing stock to which this Act applies, shall on application and payment
of the fees and stamp duty, if any, chargeable in respect of the certiﬁcate,
grant to a stockholder a certiﬁcate (in this Act called a stock certiﬁcate
to bearer) which shall entitle the bearer to the stock therein described,
and shall be transferable by delivery.
There shall be attached to such certiﬁcate coupons entitling the bearer
of or person named in the coupons to the dividends on the stock for a
limited period.
Any stock in respect of which a stock certiﬁcate to bearer has been so
issued shall, so long as such certiﬁcate is outstanding, cease to be dealt
with through the medium of the register.
A coupon so issued shall be deemed to be a cheque on a banker within
the meaning of any law or enactment for the time being in force relating
to cheques other than any enactment relating to stamp duties.
8, Where a composition has not been paid in respect of the stamp
duty chargeable on the transfer of any stock to which this Act applies, a
stock certiﬁcate to bearer issued in respect of that stock shall be charged
with a stamp duty of two shillings and sixpence for every full sum of
one hundred pounds, and also for every fraction less than one hundred
pounds, or over and above one hundred pounds or a multiple of one
hundred pounds, of the nominal amount of stock described in such
certiﬁcate.
9, On the expiration of the period for which the coupons attached to
a stock certiﬁcate to bearer have been issued under this Act, the
certiﬁcate may be exchanged for another certiﬁcate with coupons for a
ism-7.] 37 a as c. 26., 40 a 4.1 vIeT. O. 59.—BOND REG. 815
further period: Provided, that the certiﬁcate issued in exchange, if the
stamp duty has not been compounded, shall be duly stamped, but in
such case the Commissioners of Inland Revenue shall on production to
them of both certiﬁcates duly stamped, and subject to such regulations
as they may from time to time make, grant allowance for the stamp on
the former certiﬁcate.
10, On delivery to the registrar of a stock certiﬁcate to bearer issued
under this Act, and of all unpaid coupons belonging thereto, the
registrar shall enter the bearer in the register as proprietor of the stock
described in the certiﬁcate, and thereupon that stock shall become
transferable and the dividends thereon payable as if no stock certiﬁcate
to bearer had been issued in respect of that stock.
11, If the bearer of a stock certiﬁcate to bearer issued under this Act
insert therein the name, address, and quality of some person, such
certiﬁcate shall cease to be transferable, and the person so named, or
some person deriving title from him by devolution in law, shall alone be
recognised by the registrar as entitled to the stock described ‘ in the
certiﬁcate, and shall be entitled to be entered in the register as proprietor
of that stock in like manner as if he were the bearer of a stock certiﬁcate
to bearer, but if deriving his title by devolution in law he shall produce
such evidence of his title as the registrar may reasonably require.
12, A trustee shall not apply for or hold a stock certiﬁcate to bearer
issued under this Act, unless expressly authorised to do so by the terms
of his trust. But this provision shall not impose on the registrar an
obligation to inquire whether a person applying for a stock certiﬁcate to
bearer is or is not a trustee, or subject the registrar to any liability in
the event of his issuing a stock certiﬁcate to bearer to a trustee, or
invalidate any stock certiﬁcate to bearer issued.
13, If any stock certiﬁcate to bearer issued under this Act is lost,
mislaid, or destroyed, the registrar shall, on such indemnity being given
as he may reasonably require, and on payment of the expense of the
issue, issue a fresh stock certiﬁcate to bearer in the place of the
certiﬁcate so lost, mislaid, or destroyed.
14:, Stock described in a stock certiﬁcate to bearer issued under this
Act shall, save as relates to the mode of transfer and payment of divi-
dends, be subject to the same incidents in all respects as if it had
continued to be transferable in the register.
Register.
15, No notice of any trust in respect of any colonial stock, or of any
certiﬁcate thereof, or of any coupon annexed to such certiﬁcate, shall be
entered in the register or receivable by the registrar or by the govern-
ment of the colony.
16, The registrar may, before the inscription of any stock, make with
respect to the transfer of such stock, or otherwise in relation to such
stock, reasonable regulations not inconsistent with the provisions of this
Act.
A printed copy of the documents containing the authority for and
conditions of the issue of stock to which this Act applies, and of all
regulations with respect to the transfer of such stock or otherwise in
relation to such stock, shall be entered in the register of the stock.
Conversion into
nominal stockv
of stock in
certiﬁcate to
bearer.
Conversion of
stock certiﬁcate
to bearer into
nominal certiﬁ-
cate.
Trustee not to
apply for stock
certiﬁcate to
bearer.
Loss of stock
certiﬁcate to
bearer.
Stock in certiﬁ-
cate to bearer
to have inci-
dents of other
stock, except as
to transfer, &c.
Notice of trust.
Entry in re-
gister of con-
ditions and
regulations.
816 3.7 a 33 c. 23., 40 a 41 vrc'r. c. 59.—BOND REG. [1374-7-
Register to be
evidence.
Information to
be given re-
specting regis-
ter.
Particulars to
be contained in
prospectus,
certiﬁcates, &c.
1'7, The register kept in pursuance of this Act shall on its mere
production from the custody of the registrar be evidence of all matters
entered therein, and, as regards persons entered therein as proprietors of
colonial stock to which this Act applies, of the title of those persons to
to that stock. '
18, The registrar shall keep in a separate book a list of the stock-
holders on whose stock the dividends have been unclaimed for ten years,
together with their registered addresses and description, and such list
shall be open for inspection at the usual hours of transfer upon payment
of such fee, not exceeding two shillings and Sixpence, as may be ﬁxed by
the regulations.
The registrar shall give Within a reasonable time after application a
certiﬁcate stating the following particulars in relation to any colonial
stock of which he is registrar, or any part of such stock, or such of those
particulars as may be required by the applicant, namely,—
(a.) The total amount issued by the colony, and the total inscribed in
the register; and
(b.) The total number of the persons in whose names the stock or part is
originally inscribed, or after the register of such stock or part
has been once closed as regards transfers, the total number of
the stockholders at the last preceding date at which the
transfer books were closed; and
(0.) The total number of each class of persons in whose names the
stock or part is originally inscribed, or after the register of the
stock or part has been once closed as regards transfers of each
class of stockholders at the last preceding date at which the
transfer books were closed, the classiﬁcation being according
to the amount held, omitting fractions of two hundred pounds;
and _
(d.) A copy or extract certiﬁed by the registrar or by some otﬁcer
appointed for the purpose to be a true copy or extract of any
conditions or regulations required by this Act to be entered
in the register.
Provided that the registrar shall not be required to give any such cer-
tiﬁcate in relation to any colonial stock, or part of such stock, until after
the expiration of one month after the stock or part of the stock to which
the certificate relates has been inscribed.
Within a reasonable time after the application of any person who is a
stockholder of any colonial stock to which this Act applies, the registrar
shall give him a list of the registered names and addresses of the stock-
holders of such stock at the last preceding date at which the register
was closed as regards transfers.
The registrar before giving a certiﬁcate or list under this section may
require payment of such fee not exceeding ﬁve shillings and a further
sum of twopence for every folio of seventy-two words, or in the case of
a list of names and addresses of sixpence for each name and address, as
the registrar may from time to time ﬁx.
Any certiﬁcate or list given under this section shall be admissible in
evidence.
Miscellaneous.
19, The declaration respecting colonial stock to which this Act
applies, recorded with the Commissioners of Inland Revenue, and the
document containing the conditions of the issue of the stock, and every
prospectus and notice inviting persons to subscribe for or take the stock,
and every stock certiﬁcate to bearer, and every coupon and dividend
1874—7.] 37 a as c. 26., 40 a 41 vIcT. c. 59.—REG. IN ENG. 817
warrant and every other certiﬁcate and document issued to a stockholder
in relation to stock held by him, shall state that the revenues of the
colony alone are liable in respect of the stock and the dividends thereon,
and that the Consolidated Fund of the United Kingdom and the Commis-
sioners of her Majesty’s Treasury are not directly or indirectly liable or
responsible for the payment of the stock or of the dividends thereon,
or for any matter relating thereto, and if the Commissioners of Her
Majesty’s Treasury require the statement to be made in any particular
terms, those terms shall be adopted.
A declaration not in conformity with this section shall not be recorded,
and every person publishing or issuing or entering in the register any
such document, prospectus, notice, stock certificate, coupon, warrant,
certiﬁcate or document as aforesaid not in conformity with this section
shall be liable to a penalty not exceeding ﬁfty pounds.
20, In any legal proceeding in a court in the United Kingdom in
relation to the register of colonial stock to which this Act applies, or to
an entry in or omission from such register, or to a right or title to or
interest in any such colonial stock, or any dividend thereon, the juris-
diction of such court shall not be objected to on the ground only that
the registrar is the agent of a colonial government, and the registrar,
whether a party or not to such proceeding, shall comply with any order
made by such court in relation to the matters aforesaid.
Any person claiming to be interested in colonial stock to which this
Act applies, or in any dividend thereon, may present a petition of right
in England in relation to such stock or dividend, and the like pro-
ceedings may be had upon such petition as in the case of any other
petition of right, subject to this qualiﬁcation, that the certiﬁcate of the
judgment, decree, rule, or order of the court may be left with the
registrar instead of with the Commissioners of Her Majesty’s Treasury,
and such judgment, decree, rule, or order shall be complied with by the
registrar or other agent of the colonial government having possession in
England of moneys of such government instead of by the Commissioners
of Her Majesty’s Treasury.
21, For the purposes of the Act of the session of the twenty-fourth
and twenty-ﬁfth years of the reign of Her present Majesty, chapter
ninety-eight, entitled“ An Act to consolidate and amend the Statute Law
of England relating to indictable oﬁences by forgery,” colonial stock
to which this Act applies shall be deemed to be capital stock of a body
corporate.
The Forgery Act, 187 0, shall apply to a stock certiﬁcate and a coupon
issued in pursuance of this Act, and to colonial stock to which this Act
applies, in like manner as if the same were a stock certiﬁcate, coupon,
or stock mentioned in that Act.
22, Colonial stock to which this Act applies shall be personal estate,
and shall not be liable to any foreign attachment by the custom of London
or otherwise.
23, The registrar may charge such fees (if any) in respect of any
certiﬁcate issued under this Act with reference to colonial stock and in
respect of any transfer thereof in the register, and otherwise in respect
of any act done by the registrar with respect to such stock, as may be
ﬁxed by the government issuing the stock, not exceeding in any case
ﬁve shillings.
All fees charged by the registrar in pursuance of this Act may be
retained by him for his own use.
3 r
S 2340.
Jurisdiction of
courts as to
colonial stock.
Forgery of
transfers of
stock and of
stock certiﬁ-
cates, and per-
sonation of
owners of
stock, 85C.
33 & 34 Vict.
c. 58.
Stock to which
Act applies to
be personal
estate.
Fees.
818 87 a 38 c. 26., 40 a 41 war. 0. 59.-DEF. TERMS. [1874—7.
Conﬁrol 0f diB- 24:, Any discretion or power vested by this Act in the registrar shall,
cfetlon of re‘ subject to any agreement between the registrar and the government of
glstmr' the colony issuing the stock inscribed in the register kept by such
registrar, be exercised subject to and in accordance with the direction
of that government. ‘
22255521, 25, Nothing in this Act shall prevent any colonial stock inscribed in
Stock to colony. the register being transferred upon the application of the stockholder to
a reg1ster 1n the colony or elsewhere.
Deﬁnitions- 26, In this Act, unless the context otherwise requires,
The expression “colony” means any dominion, colony, island, terri-
tory, province, or settlement situate within Her Majesty’s dominions,
but not within the United Kingdom, the Channel Islands, or Isle
of Man, and not forming part of India as deﬁned for the purposes
of the Acts for the time being in force relating to the Government of
India ; and for the purposes of this Act the whole of the dominion,
colonies, islands, territories, provinces, and settlements under one
central legislature, and also such part of the said dominion and
such of the said colonies, islands, territories, provinces, and settle-
ments as is under a local legislature is deemed to be a colony :
The expression “legislature ” means any bodies or body of persons or
person who can exercise legislative authority in a colony, and where
there are local legislatures as well as a central legislature, includes
both each of the local legislatures and the central legislature :
The expression “colonial stock ” includes any share or interest in
colonial stock:
The expression “register” includes any books kept by the registrar
for the purpose of colonial stock in which the names and addresses
of the several persons for the time being entitled to such stock, and
the amounts to which they are entitled, and the transfers thereof,
are entered :
The expression “ stockholder ” means a person holding colonial stock,
being entered as proprietor thereof in the register kept under this
Act :
The expression “person ” includes a corporation :
Statutory The Act of the session of the ﬁfth and sixth years of the reign of
22:1???“ Her present Majesty, chapter sixty-two, intituled “An Act to repeal
’ ' “ an Act of the present session of Parliament, intituled ‘ An Act for
‘ the more effectual abolition of oaths and aﬂirmations taken and
‘ made in various departments of the State, and to substitute de-
‘ clarations in lieu thereof, and for [the more entire suppression of
‘ voluntary and extra-judicial oaths and affidavits’; and to make
other provisions for the abolition of unnecessary oaths,” is in this
Act referred to, and may be cited in any declaration made thereunder
for the purposes of this Act, as The Statutory Declarations Act,
1835.
Short title- 2'], This Act may be cited as The Colonial Stock Act, 1877.
The Inland Revenue Act, 1880, 43 8t 44 Vict. c. 20.,
by sec. 54, made the following amendments to 37 8t
38 Vict. c. 26. and 40 &. 41 Vict. c. 59.
Amendment of
:mtmg ‘hits as 54, The sum to be paid by way of composition for stamp duty in the
fgrcgtlgggldsg following cases, that is to say,
37 55 38 Vict. Under sec. 4 of the Canadian Stock Stamp Act, 1874, on trans-
c. 26. fers of stock of the Government of Canada from time to time
1874.] 37 a as vio'r. C. 26.-STAMP DUTY ON BONDS. 819
inscribed after the passing of this Act in books kept in the
United Kingdom ; or .
(3.) Under sec. 3 of the Colonial Stock Act, 1877, on transfers of
colonial stock to which from time to time that Act is made to
apply after the passing of this Act,
shall be calculated as if the rates enacted by this Act for the composition
of the duty on transfers of stock created and issued by the council of
any municipal borough were substituted for the rate or sum of seven
shillings and sixpence in the said section respectively: Provided that
where the holders of the debentures of the Government of a colony have,
before the ﬁrst day of July one thousand eight hundred and eighty, had
an option given to them to exchange such debentures within twelve
months for colonial stock, to which the Colonial Stock Act, 1877,
applies, the composition for the stamp duty on transfers of colonial stock
issued in accordance with any option declared within the said twelve
months shall be the same as if this section had not been enacted.
[And 45 & 46 Vict. c.‘ 72., by sec. 17, amended the
above as follows :—
Sec. 17 : Whereas by the Canadian Stock Stamp Act, 1874, provision
was made for the Government of Canada paying capital sums, calculated
at the rate therein mentioned, as composition for stamp duty chargeable
on transfers of any stock of the Government of Canada inscribed in books
kept in the United Kingdom :
And whereas after the passing of the above Act, the Government of
Canada issued to the public, with the option of inscription at any time in
books kept in the United Kingdom, the loans mentioned in the Second
Schedule to this Act; and holders of the said loans before the passing of
the Inland Revenue Act, 1880, had exercised that option to the extent
in the said Schedule mentioned, and the Government of Canada had paid
composition for the stamp duty accordingly :
And whereas by sec. 54 of the Inland Revenue Act, 1880, the amount
of the composition for stamp duty chargeable on transfers of stock of
the Government of Canada and other stock was increased, subject to a
proviso that such increased composition should not apply for twelve
months in the case of the holders of debentures of the Government
of a colony who had an option to exchange such debentures within
twelve months for colonial stock, to which the Colonial Stock Act, 1877,
applied:
And whereas, having regard to the special circumstances connected
with the issue of the stock mentioned in the said Schedule, it is
expedient to make for the holders of that stock a similar provision to
that made by the above-mentioned proviso in the case of the holders of
colonial stock :
Be it therefore enacted as follows :
Where at any time since the passing of the Inland Revenue Act, 1880,
whether before or after the passing of this Act, but before the ﬁrst day
of April one thousand eight hundred and eighty-six, any part of the loans
of the Government of Canada mentioned in the Second Schedule to this
Act has been inscribed as stock in books kept in the United Kingdom,
the Government of Canada may pay to the Commissioners of Inland
Revenue, by way of composition for the stamp duty chargeable on
transfers of such stock, a sum calculated at the rate mentioned in the
Canadian Stock Stamp Act, 1874, instead of the rate mentioned in the
Inland Revenue Act, 1880.
40 & 41 Vict.
c. 59.
Provision for
composition for
stamp duty on
certain Cana-
dian loans.
37 8t 38 Vict.
c. 26.
43 & 44 Vict.
c. 20.
40 8t 41 Vict.
c. 59.
3 F 2
820 37 8t 38 VICT. c. 27.--COL. CTS. SENTENCES. [1874.
Short title.
Deﬁnition of
term “ colony.”
SECOND SCHEDULE.
DOMINION OF CANADA LoANs.
The following amounts of 4 per cent. loans were issued to the public
in the following years:
36
In 1874 - - - - 4,000,000
In 1875 - - - - - 1,000,000
In 1876 - - - - - 2,500,000
In 1878-9 - - - - 4,500,000
————- £l2,000,000
Of the above there were inscribed in
books kept in the United Kingdom up
to the ﬁrst day of May 1882 :
39
Of the loan of 1874 - - 1,831,200
,, ,, 1875 - - - 500,000
,, ,, 1876 - - 1,088,000
,, ,, 187 8-9 - - - 2,279,700
————— £5,698,900
Leaving in the hands of the public with
option of inscription - - - - £6,301,100
37 80 38 VICT. (1874) c. 27.
Preamble repealed by S. L. R. Act, 1893 (N o. 2), c. 54.
An Act to regulate the Sentences imposed by
Colonial Courts where jurisdiction to try is
conferred by Imperial Acts. [30th June 1874.]
HEREAS by certain Acts of Parliament juris-
diction is conferred on courts in Her Majesty’s
colonies to try persons charged with certain crimes or
oﬁences, and doubts have arisen as to the proper sen-
tences to be imposed upon conviction of such persons;
and it is expedient to remove such doubts :
Be it enacted by the Queen’s most Excellent Majesty,
by and with the advice and consent of the Lords Spirit-
ual and Temporal, and Commons, in this present Parlia-
ment assembled, and by the authority of the same, as
follows :
1, This Act may be cited for all purposes as The
Courts (Colonial) Jurisdiction Act, 187 4.
2, For the purposes of this Act—
The term “ colony ” shall not include any places within
1874.] 37 & 38 VICT. c. 41.-—COL. ATTORNIES. 821
the United Kingdom, the Isle of Man, or the
Channel Islands, but shall include such territories
as may for the time being be vested in Her Majesty
by virtue of an Act of Parliament for the Govern-
ment of India, and any plantation, territory, or
settlement situate elsewhere within Her Maj esty’s
dominions, and subject to the same local govern-
ment ; and for the purposes of this Act, all planta-
tions, territories, and settlements under a central
legislature shall be deemed to be one colony under
the same local government.
3. When, by virtue of any Act of Parliament now or
hereafter to be passed, a person is tried in a court of any
colony for any crime or offence committed upon the
high seas or elsewhere out of the territorial limits of
such colony 1 and of the local jurisdiction of such court,
or if committed within such local jurisdiction made
punishable by that Act, such person shall, upon con-
viction, be liable to such punishment as might have been
inﬂicted upon him if the crime or offence had been com-
mitted within the limits of such colony and of the local
jurisdiction of the court, and to no other, anything in
any Act to the contrary notwithstanding : Provided
always that if the crime or offence is a crime or olfence
not punishable by the law of the colony in which the
trial takes place, the person shall, on conviction, be liable
to such punishment (other than capital punishment) as
shall seem to the court most nearly to correspond to the
punishment to which such person would have been liable
in case such crime or oﬁence had been tried in England.
1 See Macleodv. Att.-Gen. of New South Wales ante, sec. 101, p. 417.
37 80 38 VIOT. (1874!) c. 41.
Preamble repealed by S. L. R. Act, 1893 (No. 2), 0. 54.
An Act to amend “ The Colonial Attornies Relief Act.”
[30th July 1874.]
At trials in any
colonial courts
by virtue of
Imperial Acts,
courts em_
powered to
pass sentences
as if crimes
had been com-
mitted in the
colony.
HEREAS by the Colonial Attornies Relief Act certain provisions 20 5, 21 Vict.
are made for regulating the admission of attornies and solicitors c. 39.
822 38 a 39 vrc'r. c. 138.—POWERS or CAN. Ho. [1875.
Examination
and ceasing
to practise
dispensed
with where
colonial
attorney and
solicitor has
actually
practised for
seven years,
and passed
examination
previous to
admission.
Short title.
30 & 31 Vict.
c. 3.
of Colonial Courts in Her Majesty’s Superior Courts of Law and Equity
in England in certain cases, and it is considered just and equitable to
amend the said Act :
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows:
1. So much of the Colonial Attornies Relief Act as enacts that no
person shall be deemed qualiﬁed to be admitted as attorney or solicitor
under the provisions of the said Act unless he shall pass an examination
to test his ﬁtness and capacity, and shall further make affidavit that he
has ceased for the space of twelve calendar months at the least to practise
as attorney or solicitor in any colonial court of law, and also so much of
the said Act and of any orders and regulations made thereunder as relate
to such examination, shall not apply to nor shall compliance therewith
respectively be required of any person seeking to be admitted as attorney
or solicitor under the provisions of the said Act who shall have been in
actual practice for the period of seven years at the least as attorney and
solicitor in any colony or dependency as to which an Order in Council
has been or may be made as mentioned in the said Act, and who shall
have served under articles and passed an examination previously to his
admission as attorney and solicitor in any such colony or dependency.
2, The expression “ The Colonial Attornies Relief Act” shall hence-
forth be deemed to include this Act.
37 a as vror. (1874) c. 77.
This Act referred to colonial and other clergy : but it
is not considered of sufﬁcient importance to give it.
as a 39 VICT. (1875) c. as.
Preamble and to “ same as follows ” and sec. 1 to
“ so repealed” repealed by S. L. R. Act (No. 2), 1893,
56 &I 57 Vict. c. 544.
An Act to remove certain doubts with respect to
the powers of the Parliament of Canada under
section eighteen of the British North America
Act, 1867. [19th July 1875.]
HEREAS by section eighteen of the British
North America Act, 1867, it is provided as
follows : “ The privileges, immunities, and powers to be
held, enjoyed, and exercised by the Senate and by the
House of’ Commons, and by the members thereof re-
spectively, shall be such as are from time to time deﬁned
1875.] 38 & 39 VICT. c. 38.-—POWERS OF CAN. -H.C. 823
by Act of the Parliament of Canada, but so that the
same shall never exceed those at the passing of this Act
held, enjoyed, and exercised by the Commons House of
Parliament of the United Kingdom of Great Britain
and Ireland, and by the members thereof ;”
And whereas doubts have arisen with regard to the
power of deﬁning by an Act of the Parliament of
Canada, in pursuance of the said section, the said
privileges, powers or immunities, and it is expedient to
remove such doubts;
Be it therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :—
1. Section eighteen of the British North America
Act, 1867 , is hereby repealed, without prejudice to any-
thing done under that section, and the following section
shall be substituted for the section so repealed :-—-
[See for this ante p, 11, where the new section is set
out in place of the section repealed]
2, The Act of the Parliament of Canada passed in
the thirty-ﬁrst year of the reign of Her present Majesty,
chapter twenty-four, intituled “An Act to provide for
oaths to witnesses being administered in certain cases
for the purposes of either House of Parliament,” shall
be deemed to be valid, and to have been valid as from
the date at which the royal assent was given thereto by
the Governor-General of the Dominion of Canada.
3, This Act may be cited as the Parliament of Canada
Act, 1875.
as a 39 vIoT. (1875) c. 53. '
An Act giving eifect to the Canadian Copyright Act
of 1875, 38 Vict. c. 88. [See International Copyright
Act of 1886, post]
Substitution of
new section for
section 18 of
30 & 31 Vict.
c. 3.
Conﬁrmation
of Act of Par-
liament of
Canada.
31 82: 32 Vict.
c. 24. 6
Short title.
824: 40 8t 41 VICT. c. 23.—FORTIFICATIONS. [1877.
Power by Order
in Council to
transfer colo-
nial fortiﬁca-
tions to gover-
nor of colony.
Saving for
other interests.
Deﬁnitions :
“ Colony: ”
“ Governor.”
Short title.
40 8t 41 VICT. (1877) c. 23.
In sec. 1 the words, “Commissioners of Her
Majesty’s,” repealed by S. L. R. Act, 1894, c. 56.
An Act to make better provision respecting fortiﬁca-
tions, works, buildings, and land situate in a Colony,
and held for the defence of the Colony.
[23rd July 1877
E it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows:
1, It shall be lawful for Her Majesty, on the representation of one of
Her Majesty’s Principal Secretaries of State and of the Commissioners
of Her Majesty’s Treasury that it is expedient so to do, by Order in
Council to vest any fortiﬁcations, works, buildings, or land in any
colony held in trust for the defence of that colony (whether vested in
Her Majesty, or in one of Her Majesty’s Principal Secretaries of State,
or in the principal oﬁicers of the Board of Ordnance, or in the com-
manding Royal Engineer, or other oiﬁcer), and the care and disposal of
such fortiﬁcations, Works, buildings, or land, in the governor of the
colony, for such estate and interest, and upon such terms and conditions,
and subject to such reservations, exceptions, and restrictions as are
speciﬁed in the Order; and the governor for the time being of the colony
shall, by virtue of this Act and the Order, take and hold (subject to the
provisions of the Order) the premises transferred to and vested in him
accordingly.
Every representation to Her Majesty proposed to be made in pursuance
of this Act shall be laid before both Houses of Parliament, and shall lie
for not less than forty days on the table of both Houses before it is sub-
mitted to Her Majesty.
2, Nothing in an Order made in pursuance of this Act shall affect any
estate, interest, right, or claim in or to any fortiﬁcations, works, buildings,
or land comprised in the Order other than such as at the date of the
Order was vested in or held in trust for Her Majesty.
3, In this Act, unless the context otherwise requires,—
The expression “ colony” means any dominion, colony, island, terri-
tory, province, or settlement situate within Her Majesty’s dominions,
but without the United Kingdom, the Channel Islands, and Isle of M an,
and not forming part of India as deﬁned for the purposes of the Act for
the time being in force relating to the Government of India; and for the
purposes of this Act the whole of the dominion, colonies, islands, terri-
tories, provinces, and settlements under one central legislature is deemed
to be a colony :
The expression “governor ” includes any lieutenant-governor or
oﬂicer administering the government of a colony, and any other person
deﬁned by an Order in Council under this Act to be the governor of the
colony.
4, This Act may be cited as “The Colonial Fortiﬁcations Act, 1877.”
1878.] 41 & 42 VICT. c. 67.-—FOREIGN JURISDICTION. 825
41 & 42 VICT. (1878) c. 67.
An Act for extending and amending the Foreign
Jurisdiction Acts.
Sec. 3 gives power to the Queen in Council to extend
the enactments or amending or substituted enactments
in force of 6 85 7 Vict. c. 34. (repealed by 44 8t 45
Vict. c. 69.) ; 12 &- 13 Vict. c. 96. ; 14 & 15 Vict. c. 99.
ss. 7, 11; 17 80 18 Vict. c. 104. Part K. [see Shipping Act
of 1894, part 13] ; 19 & 20 Vict. c. 113. ; 22 Vict. c. 20. ;
22 8t 23 Vict. c. 63.; 23 & 24 Vict. c. 122.; 24 8t 25
Vict. c. 11.; 3O & 3]- Vict. c. 124. s. 11.; 37 & 38 Vict.
c. 94. s. 51.; to any place to which the Foreign J uris-
diction Act, 1843, 6 & 7 Vict. c. 94. applies.
And see. 4, an Order in Council purporting to be
made in pursuance of the Foreign Jurisdiction Acts,
1843 to 1878, or any of them, shall be deemed a colonial
law within the Colonial Laws Validity Act, 1865, 28 80
29 Vict. c. 116. “to remove doubts as to the validity
of colonial laws,” and which enacted that the term
“British Colony” includes any of H.M.’s possessions
out of the U.K., and any country or place to which any
such order extends shall be deemed a colony within
that Act.
By sec. 7, every Order in Council made in pursuance
of the Foreign Jurisdiction Acts, 1843, 1878, shall be
laid before both Houses of Parliament.
By sec. 8, a limit of six months is ﬁxed Within which
any action for any cause against persons acting under
the Acts must be brought.
By sub-sec. 2, amends may be tendered, and money
paid into court.
This Act repealed 6 8c 7 Vict. c. 80. (China), and
sec. 7 of 6 & 7 Vict. c. 94.
44 &. 45 vIcT. (1881) c. 58.
The Army Act.
By sec. 159 any person subject to military law,
who within or without Her Majesty’s dominions com-
Power for the
Queen in Coun-
cil to extend
Acts to the
Colonies.
826 44 & 45 VICT. c. 69.—-FUGITIVE OFFENDERS. [1881.
Army Act,
trial of offen-
ders abroad.
Short title.
Liability of
fugitive to be
apprehcnded
and returned
Endorsing of
warrant for
apprehension
of fugitive.
mits any offence for which he is liable to be tried by
court-martial, may be tried and punished for such oﬁence
at any place (either within or without Her Majesty’s
dominions) which is within the jurisdiction of an officer
authorised to convene general courts-martial, and in
which the offender may for the time being be, in the same
manner as if the offence had been committed where the
trial by court-martial takes place, and the oﬁender were
under the command of the officer convening such court-
martial.
411 & 45 VICT. (1881) c. 69.
The Fugitive Offenders Act.
Sec.11 from “or Lords ” to “ Ireland” and the words
“of such Lord-Lieutenant”; sec. 39 so far it deﬁnes
Secretary of State ; sees. 40 & 111, and the Schedule,
repealed by S. L. R. Act, 1894:, c. 56.
The Act, by sec. 41, repeals 6 & 7 Vict. c. 341.
An Act to amend the Law with respect to Fugitive
Offenders in Her Majesty’ Dominions, and for other
Purposes connected with the Trial of Offenders.
[27th Aug. 1881.]
E it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows ; (that is to say,)
1, This Act may be cited as the Fugitive Offenders Act, 1881.
PART I.
RETURN OF FUGI'mvEs.
2, Where a person accused of having committed an offence (to which
this part of this Act applies) in one part of Her Majesty’s dominions
has left that part, such person (in this Act referred to as a fugitive from
that part), if found in another part of Her Majesty’s dominions, shall
be liable to be apprehended and returned in manner provided by this
Act to the part from which he is a fugitive.
A fugitive may be so apprehended under an endorsed warrant or a
provisional warrant.
3, Where a warrant has been issued in one part of Her Majesty’s
dominions for the apprehension of a fugitive from that part, any of the
following authorities in another part of Her Majesty’s dominions in or
on the way to which the fugitive is or is suspected to be; (that is to say,)
(1.) A judge of a superior court in such part; and
(2.) In the United Kingdom a Secretary of State and one of the
magistrates of the metropolitan police court in‘ Bow Street;
and
1881.] ~14 & 4.5 VICT. c. 69.-RIGHT TO ARREST. 827
(3.) In a British possession the governor of that possession,
if satisﬁed that the warrant was issued by some person having lawful
authority to issue the same, may endorse such warrant in manner pro-
vided by this Act, and the warrant so endorsed shall be a sufficient
authority to apprehend the fugitive in the part of Her Majesty’s do-
minions in which it is endorsed, and bring him before a magistrate.
4:, A magistrate of any part of Her Majesty’s dominions may issue
a provisional warrant for the apprehension of a fugitive who is or is
suspected of being in or on his way to that part on such information,
and under such circumstances, as would in his opinion justify the issue
of a warrant if the offence of which the fugitive is accused had been
committed within his jurisdiction, and such warrant may be backed and
executed accordingly.
A magistrate issuing a provisional warrant shall forthwith send a
report of the issue, together with the information or a certiﬁed copy
thereof, if he is in the United Kingdom, to a Secretary of State, and
if he is in a British possession, to the governor of that possession, and
the Secretary of State or Governor may, if he think ﬁt, discharge the
person apprehended under such warrant.
5, A fugitive when apprehended shall be brought before a magistrate,
who (subject to the provisions of this Act) shall hear the case in the
same manner and have the same jurisdiction and powers, as near as may
be (including the power to remand and admit to bail), as if the fugitive
were charged with an offence committed within his jurisdiction.
If the endorsed warrant for the apprehension of the fugitive is duly
authenticated, and such evidence is produced as (subject to the provi-
sions of this Act) according to the law ordinarily administered by the
magistrate raises a strong or probable presumption that the fugitive
committed the offence mentioned in the warrant, and that the offence is
one to which this part of this Act applies, the magistrate shall commit
the fugitive to prison to await his return, and shall forthwith send a
certiﬁcate of the committal and such report of the case as he may think
ﬁt, if in the United Kingdom to a Secretary of State, and if in 'a British
possession to the governor of that possession.
\Vhere the magistrate commits the fugitive to prison, he shall inform
the fugitive that he will not be surrendered until after the expiration of
ﬁfteen days, and that he has a right to apply for a writ of habeas corpus,
or other like process.
A fugitive apprehended on a provisional warrant may be from time
to time remanded for such reasonable time, not exceeding seven days at
any one time, as under the circumstances seems requisite for the pro-
duction of an endorsed warrant.
6, Upon the expiration of ﬁfteen days after a fugitive has been
committed to prison to await his return, or if a writ of habeas corpus
or other like process is issued with reference to such fugitive by a
superior court, after the ﬁnal decision of the court in the case,
(1.) if the fugitive is so committed in the United Kingdom, a
Secretary of State; and
(2.) if the fugitive is so committed in a British possession, the
governor of that possession,
may, if he thinks it just, by warrant under his hand order that fugitive
to be returned to the part of Her Majesty’s dominions from which he is
a fugitive, and for that purpose to be delivered into the custody of the
persons to whom the warrant is addressed, or some one or more of them,
and to be held in custody, and conveyed by sea or otherwise to the said
Provisional
warrant for
apprehension
of fugitive.
Dealing with
fugitive when
apprehended.
Return of
fugitive by
warrant.
828 44 8t 45 VICT. c. 69.--RETURNING FUGITIVE. [1881.
Discharge of
person appre-
hended if not
returned
within one
month.
Sending back
of persons
apprehended
if not prose—
cuted within
six months or
acquitted.
Offences to
which this
part of this
Act applies.
Powers of
superior court
to discharge
fugitive when
case frivolous
or return un—
just.
part of Her Majesty’s dominions, to be dealt with there in due course
of law as if he had been there apprehended, and such warrant shall be
forthwith executed according to the tenor thereof.
The governor or other chief officer of any prison, on request of any
person having the custody of a fugitive under any such warrant, and on
payment or tender of a reasonable amount of expenses, shall receive such
fugitive and detain him for such reasonable time as may be requested by
the said person for the purpose of the proper execution of the warrant.
7, If a fugitive who, in pursuance of this part of this Act, has been
committed to prison in any part of Her Majesty’s dominions to await
his return, is not conveyed out of that part within one month after such
committal, a superior court, upon application by or on behalf of the
fugitive, and upon proof that reasonable notice of the intention to make
such application has been given, if the said part is the United Kingdom
to a Secretary of State, and if the said part is a British possession to the
governor of the possession, may, unless sufficient cause is shown to the
contrary, order the fugitive to be discharged out of custody.
8, Where a person accused of an offence and returned in pursuance
of this part of this Act to any part of her Majesty’s dominions, either is
not. prosecuted for the said oﬁence within six months after his arrival in
that part, or is acquitted of the said offence, then if that part is the
United Kingdom a Secretary of State, and if that part is a British
possession the governor of that possession, may, if he think ﬁt, on the
request of such person, cause him to be sent back free of cost and with
as little delay as possible to the part of Her Majesty’s dominions in or
on his way to which he was apprehended.
9, This part of this Act shall apply to the following offences, namely,
to treason and piracy, and to every offence, whether called felony, mis-
demeanor, crime, or by any other name, which is for the time being
punishable in the part of Her Majesty’s dominions in which it was
committed, either on indictment or information, by imprisonment with
hard labour for a term of twelve months or more, or by any greater
punishment; and for the purposes of this section, rigorous imprisonment,
and any conﬁnement in a prison combined with labour, by whatever
name it is called, shall be deemed to be imprisonment with hard labour.
This part of this Act shall apply to an offence notwithstanding that
by the law of the part of Her Majesty’s dominions in or on his way to
which the fugitive is or is suspected of being it is not an offence, or not
an offence to which this part of this Act applies; and all the provisions
of this part of this Act, including those relating to a provisional warrant
and to a committal to prison, shall be construed as if the offence were in
such last-mentioned part of Her Majesty’s dominions an offence to
which this part of this Act applies.
10, Where it is made to appear to a superior court that by reason of
the trivial nature of the case, or by reason of the application for the
return of a fugitive not being made in good faith in the interests of
justice or otherwise, it would, having regard to the distance, to the
facilities for communication, and to all the circumstances of the case, be
unjust or oppressive or too severe a punishment to return the fugitive
either at all or until the expiration of a certain period, such court may
discharge the fugitive, either absolutely or on bail, or order that he shall
not be returned until after the expiration of the period named in the
order, or may make such other order in the premises as to the court
seems just.
1881.] 44 a 45 vIcT. c. 69.—SUM. WITNESS. 829
11, In Ireland the Lord-Lieutenant or Lords Justices or other chief 113911131‘ of Lord
governor or governors of Ireland, also the chief secretary of such Lord- Ilfsllﬁgam m
Lieutenant, ma as well as a Secretar of State, execute an ortion of '
Ya y y P
the powers by this part of this Act vested in a Secretary of State.
PART II.
INTER-COLONIAL BACKING or WARRANTS AND OFFENcEs.
Application of part of Act.
12, This part of this Act shall apply only to those groups of British Application of
possessions to which, by reason of their contiguity or otherwise, it may Part of Act to
seem expedient to Her Majesty to apply the same. g‘iggfgg
It shall be lawful for Her Majesty from time to time by Order in Sessions?
Council to direct that this part of this Act shall apply to the group of
British possessions mentioned in the Order, and by the same or any
subsequent Order to except certain offences from the application of
this part of this Act, and to limit the application of this part of this
Act by such conditions, exceptions, and qualiﬁcations as may be deemed
expedient.
Backing of Warrants.
13, Where in a British possession of a group to which this part of Backingﬂll
this Act applies a warrant has been issued for the apprehension of a one Brltlsh
person accused of an offence punishable by law in that possession, and Evgsrsrfgioigsigd
such person is or is suspected of being in or on the way to another in another of
British possession of the same group, a magistrate in the last-mentioned same group,
possession, if satisﬁed that the warrant was issued by a person having
lawful authority to issue the same, may endorse such warrant in manner
provided by this Act, and the warrant so endorsed shall be a sufficient
authority to apprehend, within the jurisdiction of the endorsing magi-
strate, the person named in the warrant, and bring him before the
endorsing magistrate or some other magistrate in the same British
possession.
14, The magistrate before whom a person so apprehended is brought, Return Of
if he is satisﬁed that the warrant is duly authenticated as directed by P11501191‘ d d
this Act, and was issued by a person having lawful authority to issue 33231520150,‘
the same, and is satisﬁed on oath that the prisoner is the person named waﬁ'anti
or otherwise described in the warrant, may order such prisoner to be
returned to the British possession in which the warrant was issued, and
for that purpose to be delivered into the custody of the persons to whom
the warrant is addressed, or any one or more of them, and to be held in
custody and conveyed by sea or otherwise into the British possession in
which the warrant was issued, there to be dealt with according to law as
if he had been there apprehended. Such order for return may be made
by warrant under the hand of the magistrate making it, and may be
executed according to the tenor thereof.
A magistrate shall, so far as is requisite for the exercise of the powers
of this section, have the same power, including the power to remand and
admit to bail a prisoner, as he has in the case of a person apprehended
under a warrant issued by him.
15, Where a person required to give evidence on behalf of the Backingin
prosecutor or defendant on a charge for an offence punishable by law one Bmflsh
in a British possession of a group to which this part of this Act applies, gsrsﬁigilosn 3:
is or is suspected of being in or on his way to any other British posses- of witnes; c'
sion of the same group, a judge. magistrate, or other officer who would issued in
830 44 a 45 VICT. c. 69.—N()LLE rRosEoUI. [1881.
another pos-
session of
same group.
Provisional
warrant in
group of
British pos-,
sessions.
Discharge of
prisoner not
returned with-
in one month
to British pos-
session of
same group.
Sending back
of prisoner not
prosecuted or
acquitted to
British pos-
session of
same group.
Refusal to
return prisoner
where oﬁ‘ence
too trivial.
have lawful authority to issue a summons, requiring the attendance of
such witness, if the witness were within his jurisdiction, may issue a
summons for the attendance of such witness, and a magistrate in any
other British possession of the same group, if satisﬁed that the summons
was issued by some judge, magistrate, or officer having lawful authority
as aforesaid, may endorse the summons with his name; and the witness,
on service in that possession of the summons, so endorsed, and on pay-
ment or tender of a reasonable amount for his expenses, shall obey the
summons, and in default shall be liable to be tried and punished either
in the possession in which he is served or in the possession in which the
summons was issued, and shall be liable to the punishment imposed by
the law of the possession in which he is tried for the failure of a witness
to obey such a summons. The expression “ summons ” in this section
includes any subpoena or other process for requiring the attendance of a
witness.
16, A magistrate in a British possession of a group to which this part
of this Act applies, before the endorsement in pursuance of this part of
this Act of a warrant for the apprehension of any person, may issue a
provisional warrant for the apprehension of that person, on such infor-
mation and under such circumstances as would in his opinion justify
the issue of a warrant if the offence of which such person is accused
were an oﬁence punishable by the law of the said possession, and had
been committed within his jurisdiction, and such warrant may be backed
and executed accordingly; provided that 5’ person arrested under such
provisional warrant shall be discharged unless the original warrant is
produced and endorsed within such reasonable time as may under the
circumstances seem requisite.
1'1, If a prisoner in a British possession whose return is authorised
in pursuance of this part of this Act is not conveyed out of that posses-
sion within one month after the date of the warrant ordering his return,
a magistrate or a superior court, upon application by or on behalf of the
prisoner, and upon proof that reasonable notice of the intention to make
such application has been given to the person holding the warrant and to
the chief officer of the police of such possession or of the province or
town where the prisoner is in custody, may, unless suﬂicient cause is
shown to the contrary, order such prisoner to be discharged out of
custody.
Any order or refusal to make an order of discharge by a magistrate
under this section shall be subject to appeal to a superior court.
18, Where a prisoner accused of an offence is returned in pursuance
of this part of this Act to a British possession, and either is not prose-
cuted for the said offence within six months after his arrival in that
possession or is acquitted of the said offence, the governor of that posses-
sion, if he thinks ﬁt, may, on the requisition of such person, cause him
to be sent back, free of cost, and with as little delay as possible, to
the British possession in or on his way to which he was apprehended.
19, Where the return of a prisoner is sought or ordered under this
part of this Act, and it is made to appear to a magistrate or to a superior
court that by reason of the trivial nature of the case, or by reason of the
application for the return of such prisoner not being made in good faith
in the interests of justice or otherwise, it would, having regard to the
distance, to the facilities of communication, and to all the circumstances
of the case, be unjust or oppressive, or too severe a punishment, to
return the prisoner either at all or until the expiration of a certain
1881.] 44 a 45 vic'r. C. 69.—ADJOINING- POSSESSIONS. 881
period, the court or magistrate may discharge the prisoner either
absolutely or on bail, or order that he shall not be returned until
after the expiration of the period named in the order, or may make
such other order in the premises as to the magistrate or court seems
just.
Any order or refusal to make an order of discharge by a magistrate
under this section shall be subject to an appeal to a superior court.
PART III.
T rial, <50. of Ofences.
20, Where two British possessions adjoin, a person accused of an
offence committed on or within the distance of ﬁve hundred yards from
the common boundary of such possessions may be apprehended, tried,
and punished in either of such possessions.
21, Where an oifence is committed on any person or in respect of any
property in or upon any carriage, cart, or vehicle whatsoever employed
in a journey, or on board any vessel whatsoever employed in a navigable
river, lake, canal, or inland navigation, the person accused of such
offence may be tried in any British possession through a part of which
such carriage, cart, vehicle, or vessel passed in the course of the journey
or voyage during which the oifence was committed ; and where the side,
bank, centre, or other part of the road, river, lake, canal, or inland
navigation along which the carriage, cart, vehicle, or vessel passed in the
course of such journey or voyage is the boundary of any British posses-
sion, a person may be tried for such offence in any British possession of
which it is the boundary :
Provided that nothing in this section shall authorise the trial for such
offence of a person who is not a British subject, where it is not shown
that the offence was committed in a British possession.
22, A person accused of the offence (under whatever name it is
known) of swearing or making any false deposition, or of giving or
fabricating any false evidence, for the purposes of this Act, may be tried
either in the part of Her Majesty’s dominions in which such deposition
or evidence is used, or in the part in which the same was sworn, made,
given, or fabricated, as the justice of the case may require.
23, Where any part of this Act provides for the place of trial of a person
accused of an offence, that offence shall, for all purposes of and inci-
dental to the apprehension, trial, and punishment of such person, and of
and incidental to any proceedings and matters preliminary, incidental to,
or consequential thereon, and of and incidental to the jurisdiction of any
court, constable, or oﬁicer with reference to such oifence, and to any per-
son accused of such offence, be deemed to have been committed in any
place in which the person accused of the offence can be tried for it; and
such person may be punished in accordance with the Courts (Colonial)
Jurisdiction Act, 1874.
24:, Where a warrant for the apprehension of a person accused of an
oﬁence has been endorsed in pursuance of any part of this Act in any
part of Her Majesty’s dominions, or where any part of the Act provides
for the place of trial of a person accused of an olfence, every court and
magistrate of the part in which the warrant is endorsed or the person
accusedjof the offence can be tried shall have the same power of issuing
a warrant to search for any property alleged to be stolen or to be other-
wise unlawfully taken or obtained by such person, or otherwise to be the
Oﬁ’ences com-
mitted on
boundary of
two adjoining
British pos-
sessions.
Oﬁ‘ences com-
mitted on
journey be-
tween two
British
possessions.
Trial of offence
of false swear-
ing or giving
false evidence.
Supplemental
provision as to
trial of person
in any place.
37 86 38 Vict.
c. 27.
Issue of search
warrant.
832 44 a 45 vIcT. c. 69—SHIP AND PRISONER. [1881.
subject of such oifence, as that court or magistrate would have if the pro-
perty had been stolen or otherwise unlawfully taken or obtained, or the
offence had been committed wholly within the jurisdiction of such court
or magistrate.
Removal of 25, Where a person is in legal custody in a British possession either
P11801161‘ by in pursuance of this Act or otherwise, and such person is required to be
Size??? or" removed in custody to another place in or belonging to the same British
gnome, possession, such person, if removed by sea in a vessel belonging to Her
Majesty or any of Her Majesty’s subjects, shall be deemed to continue in
legal custody until he reaches the place to which he is required to be
removed; and the provisions of this Act with respect to the retaking of a
prisoner who has escaped, and with respect to the trial and punishment
of a person guilty of the offence of escaping or attempting to escape, or
aiding or attempting to aid a prisoner to escape, shall apply to the case
of a prisoner escaping while being lawfully removed as aforesaid, in like
manner as if he were being removed in pursuance of a warrant endorsed
in pursuance of this Act. ‘
PART IV.
SUPPLEMENTAL.
Warrants and Escape.
Endorsement 26, An endorsement of a warrant in pursuance of this Act shall be
of Wanam- signed by the authority endorsing the same, and shall authorize all or any
of the persons named in the endorsement, and of the persons to whom
the warrant was originally directed, and also every constable, to execute
the warrant within the part of Her Majesty’s dominions or place within
which such endorsement is by this Act made a sufﬁcient authority, by
apprehending the person named in it, and bringing him before some
magistrate in the said part or place, whether the magistrate named in the
endorsement or some other.
For the purposes of this Act every warrant, summons, subpoena, and
process, and every endorsement made in pursuance of this Act thereon,
shall remain in force, notwithstanding that the person signing the War-
rant or such endorsement dies or ceases to hold oﬁice.
Conveyance of 27, Where a fugitive or prisoner is authorized to be returned to any
ﬁlsitives and part of Her Majesty’s dominions in pursuance of Part One or Part Two
wltnesses' of this Act, such fugitive or prisoner may be sent thither in any ship
belonging to Her Majesty or to any of her subjects.
For the purpose aforesaid, the authority signing the warrant for the
return may order the master of any ship belonging to any subject of Her
Majesty bound to the said part of Her Majesty’s dominions to receive
and afford a passage and subsistence during the voyage to such fugitive
or prisoner, and to the person having him in custody, and to the
witnesses, so that such master be not required to receive more than one
fugitive or prisoner for every hundred tons of his ship’s registered ton-
nage, or more than one witness for every ﬁfty tons of such tonnage.
The said authority shall endorse or cause to be endorsed upon the
agreement of the ship such particulars with respect to any fugitive
prisoner or witness sent in her as the Board of Trade from time to time
require.
Every such master shall, on his ship’s arrival in the said part of Her
Majesty’s dominions, cause such fugitive or prisoner, if he is not in the
custody of any person, to be given into the custody of some constable,
there to be dealt with according to law.
1881] , 44 a 45 vIcT. c. 69.—FINE oN CAPTAIN. 833
Every master who fails on payment or tender of a reasonable amount
for expenses to comply with an order made in‘ pursuance of this section,
or to cause a fugitive or prisoner committed to his charge to be given
into custody as required by this section, shall be liable on summary con-
viction to a ﬁne not exceeding ﬁfty pounds, which may be recovered in
any part of Her Majesty’s dominions in like manner as a penalty of the
same amount under the Merchant Shipping Act, 1854, and the Acts
amending the same. [See Act of 1894, post]
28, If a prisoner escape, by breach of prison or otherwise, out of the
custody of a person acting under a warrant issued or endorsed in pursu-
ance of this Act, he may be retaken in the same manner as a person
accused of a crime against the law of that part of Her Majesty’s
dominions to which he escapes may be retaken upon an escape.
A person guilty of the offence of escaping or of attempting to escape,
or of aiding or attempting to aid a prisoner to escape, by breach of prison
or. otherwise, from custody under any warrant issued or endorsed in pur-
suance of this Act, may be tried in any of the following parts of Her
Majesty’s dominions, namely, the part to which and the part from which
the prisoner is being removed, and the part in which the prisoner escapes
and the part in which the offender is found.
Evidence.
29, A magistrate may take depositions for the purposes of this Act
in the absence of a person accused of an offence in like manner as he
might take the same if such person were present and accused of the
offence before him.
Depositions (whether taken in the absence of the fugitive or otherwise)
and copies thereof, and oﬂicial certiﬁcates of or judicial documents stating
facts, may, if duly authenticated, be received in evidence in proceedings
under this Act.
Provided that nothing in this Act shall authorize the reception of any
such depositions, copies, certiﬁcates, or documents in evidence against a
person upon his trial for an offence.
Warrants and depositions, and copies thereof, and official certiﬁcates of
or judicial documents stating facts shall be deemed duly authenticated for
the purposes of this Act if they are authenticated in manner provided
for the time being by law, or if they purport to be signed by or authenti-
cated by the signature of a judge, magistrate, or otﬁcer of the part of
Her Majesty’s dominions in which the same are issued, taken, or made,
and are authenticated either by the oath of some witness, or by being
sealed with the oﬁ‘icial seal of a Secretary of State, or with the public
seal of a British possession, or with the oﬁ’icial seal of a Governor of a
British possession, or of a Colonial Secretary, or of some secretary or
minister administering a department of the Government of a British
possession.
And all courts and magistrates shall take judicial notice of every such
seal as is in this section mentioned, and shall admit in evidence without
further proof the documents authenticated by it.
Miscellaneous.
30, The jurisdiction under Part One of this Act to hear a case and com-
mit a fugitive to prison to await his return shall be exercised,—
(1.) In England, by a chief magistrate of the metropolitan police
courts or of one of the other magistrates of the metropolitan police
court at Bow Street; and
s 2340. 3 G
17 & 18 Vict.
c. 104.
Escape of
prisoner from
custody.
Depositions to
be evidence,
and authenti-
cation of
depositions and
warrants.
Provision as
to exercise of
jurisdiction by
magistrates.
‘834: 44 8t 45 VICT. c. 69.—TRIAL ANYWHERE. [1881.
(2.) In Scotland, by the sheriﬁ or sheriff substitute of the county of
Edinburgh; and
(3.) In Ireland, by one of the police magistrates of the Dublin metro-
politan police district; and
(4.) In a British possession, by any judge, justice of the peace, or
other oﬁicer having the like jurisdiction as one of the magistrates
of the metropolitan police court in Bow Street, or by such other
court, judge, or magistrate as may be from time to time provided
by an Act or ordinance passed by the legislature of that
possession.
If a fugitive is apprehended and brought before a magistrate who has
no power to exercise the jurisdiction under this Act in respect of that
fugitive, that magistrate shall order the fugitive to be brought before
some magistrate having that jurisdiction, and such order shall be
obeyed.
Power as to 31, It shall be lawful for Her Majesty in Council from time to time
making, andf to make Orders for the purposes of this Act, and to revoke and vary any
revoca Ion 0 Order so made, and every Order so made shall while it is in force have
8232131111 the same effect as if it were enacted in this Act.
An Order in Council made for the purposes of this Act shall be laid
before Parliament as soon as may be after it is made if Parliament is
then in session, or if not, as soon as may be after the commencement of
the then next session of Parliament.
Power Of 32, If the legislature of a British possession pass any Act or
leglilature of ordinance—
Sllglstifrlll 52,03,188 For deﬁning the oﬁences committed in that possession to which
laws for this Act or any part thereof is to apply ; or
carrying into For determining the court, judge, magistrate, oﬁicer, or person
effect this Act. by whom and the manner in which any jurisdiction or power
under this Act is to be exercised; or
(3.) For payment of the costs incurred in returning a fugitive or a
prisoner, or in sending him back if not prosecuted or if acquitted,
or otherwise in the execution of this Act; or
(4.) In any manner for the carrying of this Act or any part thereof
into effect in that possession,
it shall be lawful for Her Majesty by Order in Council to direct, if it
seems to Her Majesty in Council necessary or proper for carrying into
effect the objects of this Act, that such Act or, ordinance, or any part
thereof, shall, with or without modiﬁcation or alteration, be recognised
and given effect to throughout Her Majesty’s dominions and on the high
seas as if it were part of this Act.
Application of Act.
Application of 33, Where a person accused of an offence can, by reason of the
Act to Oﬁences nature of the oﬁence, or of the place in which it was committed, or
$863‘ 0.1‘ otherwise be, under this Act, or otherwise, tried for or in respect of the
rlable 1n . ’ . , . .
several Parts of offence 1n more than one part of Her Majesty s domlmons, a warrant
Her Majesty’s for the apprehension of such person may be issued in any part of Her
dominions. Majesty’s dominions in which he can, if he happens to be there, be tried;
and each part of this Act shall apply as if the offence had been committed
in the part of Her Majesty’s dominions where such warrant is issued,
and such person may be apprehended and returned in pursuance of this
Act, notwithstanding that in the place in which he is apprehended a
court has jurisdiction to try him :
Provided that if such person is apprehended in the United Kingdom
21 Secretary of State, and if he is apprehended in a British possession,
1881.] 4.4 a 45 vIcT. c. 69.—REMOVAL FOR TRIAL. 835
the Governor of such possession, may, if satisﬁed that, having regard to
the place where the witnesses for the prosecution and for the defence are
to be found, and to all the circumstances of the case, it would be con-
ducive to the interests of justice so to do, order such person to be tried
in the part of Her Majesty’s dominions in which he is apprehended, and
in such case any warrant previously issued for his return shall not be
executed.
34, Where a person convicted by a court in any part of Her Majesty’s
dominions of an offence committed either in Her Majesty’s dominions or
elsewhere, is unlawfully at large before the expiration of his sentence,
each part of this Act shall apply to such person, so far as is consistent
with the tenor thereof, in like manner as it applies to a person accused of
the like offence committed in the part of Her Majesty’s dominions in
which such person was convicted.
35, Where a person accused of an offence is in custody in some part
of Her Majesty’s dominions, and the oifence is one for or in respect of
which, by reason of the nature thereof or of the place in which it was
committed or otherwise, a person may under this Act or otherwise be
tried in some other part of Her Majesty’s dominions, in such case a
superior court, and also if such person is in the United Kingdom a
Secretary of State, and if he is in a British possession the Governor of
that possession, if satisﬁed that, having regard to the place Where the
Witnesses for the prosecution and for the defence are to be found, and to
all the circumstances of the case, it would be conducive to the interests
of justice so to do, may by warrant direct the removal of such offender
to some other part of Her Majesty’s dominions in which he can be tried,
and the offender may be returned, and, if not prosecuted or acquitted,
sent back free of cost in like manner as if he were a fugitive returned in
pursuance of Part One of this Act, and the warrant were a warrant for
the return of such fugitive, and the provisions of this Act shall apply
accordingly.
36, It shall be lawful for Her Majesty from time to time by Order
in Council to direct that this Act shall apply as if, subject to the con-
ditions, exceptions, and qualiﬁcations (if any) contained in the Order,
any place out of Her Majesty’s dominions in which Her Majesty has
jurisdiction, and which is named in the Order, were a British possession,
and to provide for carrying into effect such application.
3'], This Act shall extend to the Channel Islands and Isle of Man as
if they were part of England and of the United Kingdom, and the
United Kingdom and those islands shall be deemed for the purpose of
this Act to be one part of Her Majesty’s dominions; and a warrant
endorsed in pursuance of Part One of this Act may be executed in every
place in the United Kingdom and the said islands accordingly.
38, This Act shall apply where an oifence is committed before the
' commencement of this Act, or, in the case of Part Two of this Act,
before the application of that part to a British possession or to the
offence, in like manner as if such offence had been committed after such
commencement or application.
Definitions and Repeal.
39, In this Act, unless the context otherwise requires,—
The expression “ Secretary of State” means one of Her Majesty’s
Principal Secretaries of State :
Application of
Act to con-
victs.
Application of
Act to removal
of person
triable in
more than one
part of Her
Majesty’s
dominions.
Application of
Act to foreign
jurisdiction.
Application of
Act to, and
execution of
warrant in
United King-
dom, Channel
Islands, and
Isle of Man.
Application of
Act to past
offences.
Deﬁnition of
terms.
“ Secretary of
State : ”
3G2
836 44 & 45 VICT. c. 69.-—TERMS USED. [1881.
“British pos-
session :”
“Legislature : ”
“ Governor : ”
“ Constable : ”
“ Magistrate : ”
“ Offence
punishable on
indictment : "
“ Oath : ”
“ Deposition : ”
“ Superior
court.”
Commence-
ment of Act.
Repeal of Act _
in Schedule.
The expression “British possession” means any part of Her Ma-
jesty’s dominions, exclusive of the United Kingdom, the Channel
Islands, and Isle of Alan ; all territories and places within Her
Majesty’s dominions which are under one legislature shall be
deemed to be one British possession and one part of Her Majesty’s
dominions:
The expression “legislature,” where there are local legislatures as well
as a central legislature, means the central legislature only :
The expression “ Governor ” means any person or persons administer-
ing the government of a British possession, and includes the
Governor and Lieutenant-Governor of any part of India:
The expression “constable ” means, out of England, any policeman
or ofﬁcer having the like powers and duties as a constable in
England :
The expression “magistrate ” means, except in Scotland, any justice
of the peace, and in Scetland means a sheriff or sheriff substitute,
and in the C/zannel Islands, Isle of Alan, and a British possession
means any person having authority to issue a warrant for the appre-
hension of persons accused of oﬁences and to commit such persons
for trial :
The expression “ offence punishable on indictment ” means, as regards
India, an olfence punishable on a charge or otherwise:
The expression “ oath ” includes affirmation or declaration vin the case
of persons allowed by law to aﬁirm or declare instead of swearing,
and the expression “ swear ” and other words relating to an oath or
swearing shall be construed accordingly:
The expression “ deposition ” includes any aﬁidavit, affirmation, or
statement made upon oath as above deﬁned:
The expression “ superior court ” means:
( 1.) In England, Her Majesty’s Court of Appeal and High Court of
Justice; and
(2.) In Scotland, the High Court of J usticiary; and
( 3.) In Ireland, Her Majesty’s Court of Appeal and Her Majesty’s
High Court of Justice at Dublin ; and
(4.) In a British possession, any court having in that possession the
like criminal jurisdiction to that which is vested in the High
Court of Justice in England, or such court or judge as may
be determined‘ by any Act or ordinance of that possession.
40, This Act shall come into operation on the ﬁrst day of January
one thousand eight hundred and eighty-two, which date is in this Act
referred to as the commencement of this Act.
41, The Act speciﬁed in the Schedule to this Act is hereby repealed
as from the commencement of this Act:
Provided that this repeal shall not affect—
(a) Any warrant duly endorsed or issued, nor anything duly done
or suffered before the commencement of this Act ; nor
(6) Any obligation or liability incurred under an enactment hereby
repealed; nor
(0) Any penalty, forfeiture, or punishment incurred in respect of
any offence committed against any enactment hereby repealed ;
nor a
(d) Any legal proceeding or remedy in respect of any such warrant,
obligation, liability, penalty, forfeiture, or punishment as
aforesaid; and any such warrant may be endorsed and exe-
cuted, and any such legal proceeding and remedy may be
carried on, as if this Act had not passed.
1882.] 45 a 46 vIcT. c. 76.—COL. REG. or sTocKs. 837
SCHEDULE.
Year and Chapter. Title.

6 & 7 Vict. c. 34. - An Act for the better apprehension of certain
offenders.
45 a 46 VICT. (1882) c. 76.
The whole Act repealed by Merchant Shipping Act,
1894, c. 60.
An Act to amend the Merchant Shipping Acts, 1854
to 1880, with respect to colonial courts of inquiry ; and
its enactments have been incorporated in the above
repealing Act, secs. 477, 478, see post.
46 a 47 VIc'r. (1883) c. 30.
Sec. 7 amended by 52 _& 53 Vict. c. 42. s. 18.
An Act to authorize Companies registered under the
Companies Act, 1862, to keep Local Registers of their
Members in British Colonies. ‘ [20th Aug. 1883.]
HEREAS many companies registered under the Companies Act,
1862, carry on business in British colonies, and dealings in their
shares are frequent in such colonies, but delay, inconvenience, and
expense are occasioned by reason of the absence of any legal pro-
vision for keeping local registers of members, and it is expedient that
such provisions as this Act contains be made in that behalf:
Be ittherefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual Temporal, and
Commons, in this present Parliament assembled, and by the authority of
the same, as follows :
1, This Act may be cited for all purposes as the Companies (Colonial
Registers) Act, 1883; and this Act shall, so far as is consistent with
the tenor thereof, be construed as one with the Companies Acts, 1862
to 1880, and the said Acts-and this Act may be referred to as the Com-
panies Acts 1862- to 1883.
2, In this Act the term “ company ” means a company registered
under the Companies Act, 1862, and having a capital divided into shares;
the term “ shares ” includes stock; the term “ colony ” does not include
any place within the United Kingdom, the Isle ofillan, or the Channel
Islands, but includes such territories as may for the time being be vested
in Her Majesty by virtue of an Act of Parliament for the government
of India, and any plantation, territory, or settlement situate elsewhere
within Her Majesty’s dominions,
Short title and
construction.
Deﬁnitions.
838 46 & 47 VICT. c. 30.—COL. REGISTERS EVIDENCE. [1883.
Power for
companies to
keep colonial
registers.
25 & 26 Vict.
c. 89.
3, Any company whose objects comprise the transaction of
business in a colony may, if authorized so to do by its regulations as
originally framed, or as altered by special resolution, cause to be kept
in any colony in which it transacts business a branch register or registers
of members resident in such colony.
(2.) The company shall give to the registrar of joint stock companies
notice of the situation of the office where any such branch register (in
this Act called a colonial register) is kept, and of any change therein,
and of the discontinuance of any such oﬁice in the event of the same
being discontinued.
(3.) A colonial register shall, ‘as regards the particulars entered therein,
be deemed to be ‘a part of the company’s' register of members, and shall
be prima facie evidence of all particulars entered therein. Any such
register shall be kept in the manner provided by the Companies Acts,
1862 to 1880, with this qualiﬁcation, that the advertisement mentioned
in section thirty-three of the Companies Act, 1862, shall be inserted in
some newspaper circulating in the district wherein the register to be
closed is kept, and that any competent court in the colony where such
register is kept shall be entitled to exercise the same jurisdiction of
rectifying the same as is by section thirty-ﬁve of the Companies Act, 1862,
vested, as respects a register, in England and Ireland ‘in Her Majesty’s
superior courts of law or equity, and that all offences under section
thirty-two of the Companies Act, 1862, may, as regards a colonial register,
be prosecuted summarily before any tribunal in the colony where such
register is kept having summary criminal jurisdiction.
(4.) The company shall transmit to its registered oﬁice a copy of
every entry in its colonial register or registers as soon as may be after
such entry is made, and the company shall cause to be kept at its regis-
tered oﬁice, duly entered up from time to time, a duplicate or duplicates
of its colonial register or registers. The provisions of section thirty-
two of the Companies Act, 1862, shall apply to every such duplicate,
and every such duplicate shall, for all the purposes of the Companies
Acts, 1862 to 1880, be deemed to be part of the register of members of
the company.
(5.) Subject to the provisions of this Act with respect to the dupli-
cate register, the shares registered in a colonial register shall be dis-
tinguished from the shares registered in the principal register, and no
transaction with respect to any shares registered in a colonial register
shall, during the continuance of the registration of such shares in such
colonial register, be registered in any other register.
(6.) The company may discontinue to keep any colonial register, and
thereupon all entries in that register shall be transferred to some other
colonial register kept by the company in the same colony, or to the
register of members kept at the registered ofﬁce of the company.
(7 In relation to stamp duties the following provisions shall have
eﬁect :—
(a.) An instrument of transfer of a share registered in a colonial
register under this Act shall be deemed to be a transfer of
property situated out of the United Kingdom, and unless
executed in any part of the United Kingdom shall be exempt
from British stamp duty.
(6.) Upon the death of a member registered in a colonial register
under this Act, the share or other interest of the deceased
member shall for the purposes of this Act so far asrelates to
1883.]
839
46 & 47 VICT. c. 30.—COL. CONFERENCE.
British duties be deemed to be part of his estate and effects
situated in the United Kingdom, for or in respect of which
probate or letters of administration is or are to be granted,
or whereof an inventory is to be exhibited and recorded in
like manner as if he were registered in the register of
members kept at the registered otlice of the company.
(8.) Subject to the provisions of this Act, any company may, by its
regulations as originally framed, or as altered by special. resolution,
make such provisions as it may think ﬁt respecting the keeping of colonial
registers.
See letter of Lord Knutsford,
13th Sept. 1889, as follows :—
“I have the honour to transmit
to you a copy of the Imperial Act
of 1889 (52 80 53 Vict. c. 42.), and
to request that you will cause secs.
18 and 19 to be published for in-
formation in your colony under
your Government. During the sit--
ting of the Colonial Conference in
1887, the attention of H.M.’s gov-
ernment was called to the Companies
(Colonial Registers) Act, 1883 (46
& 47 Vict. c. 30.), which had the
effect of requiring probate or letters
of administration to be taken out
both in the colony and in this cou ntry
‘in respect of the wills or estates of
colonial shareholders holding shares
011 the colonial registers of banks
and other companies. The proceed-
ings on the subject at pp. 76-107 of
Par. Paper C. 5091, vol. 1, and the
papers then laid before the confer-
ence, are printed on pp. 47, 48, 49
of the Par. Paper C. 5091, vol. 2.
The promise given in the former
that this grievance should be reme-
died has now been redeemed by the
passing of sec. 18 (of 52 & 53 Vict.
c. 42) for the purpose.
A somewhat similar complaint
was brought to the notice of Her .
Majesty’s Government in connec-
tion with policies of life insurance
issued in the colonies by insurance
companies carrying on business in
the colonies, but having their head
office in the United Kingdom. The
sums recovered under such policies
were held to be assets situated in the
United Kingdom, and under sec.
11 of the Imperial Revenue Act,
1884 (47 8048 Vict. c. 62, seebelow)
the production of a grant of repre-
sentation from the court in theUnited
Kingdom, by probate, or letters of
administration, or conﬁrmation, was
necessary to establish the right to
recover or receive these amounts.
The hardship of this provision
upon persons who had no real con-
nection with the United Kingdom
has been recognised, and sec. 19
has been passed to remove it.
See therefore Revenue Act, 1889,
52 & 53 Vict. c. 42.; sees. 18, 19.
Secs. 18 and 19 of 52 85 53 Vict. (1889) c. 42. were as
follows :—-—
18, Notwithstanding provision (b) in section seven of the Companies Amendment of
(Colonial Registers) Act, 1883, the share or other interest of a deceased
member, registered in a colonial register under that Act, who shall have died
domiciled elsewhere than in the United Kingdom, shall, so far as relates
to British duties, not be deemed to be part of his estate and effects
situated in the United Kingdom, for or in respect of which probate or
letters of administration is or are to be granted, or whereof an inven-
tory is to be exhibited and recorded.
19, The proviso to section eleven of the Revenue Act, 1884 (see it
below), is hereby repealed, and that section shall be read as if the follow-
ing proviso were therein inserted in lieu of the repealed proviso ;
46 & 47 Vict.
c. 30. s. 7,
as to shares
in colonial
registers.
Amendment of
s. 11 of
47 82; 48 Vict.
c. 62.
84.0 47 a 48 VICT. c. 24.-COL. ATTORNEYS IN ENG. [1884.
Representation
in the United
Kingdom to
constitute the
title to assets
therein situate.
Provided that where a policy of life assurance has been effected with
any insurance company by a person who shall die domiciled elsewhere
than in the United Kingdom, the production of a grant of representa-
tion from a court in the United Kingdom shall not be necessary to
establish the right to receive the money payable in respect of such
policy.
Sec. 11 of 447 8a 418 Vict.
follows :—
(18841) c. 62. was as
11, Notwithstanding any provision to the contrary contained in any
local or private Act of Parliament, the production of a grant of repre-
sentation from a court in the United Kingdom by probate or letters of
administration or conﬁrmation shall be necessary to establish the right
to recover or receive any part of the personal estate and effects of any
deceased person situated in the United Kingdom. Provided that, where
any insurance company is authorized by a local or private Act of Par-
liament to pay money in respect of any policy of life insurance on pro-
duction of a grant of representation obtained in the empire of India or
in any of the COlODltS, the production of a grant of representation from a
court in the United Kingdom shall not be necessary in case the policy
was effected before the ﬁrst day of July one thousand eight hundred and
eighty-four. Nor shall such production be. necessary in case the policy
was effected on or after the said day if the company shall, before paying
such money, have deducted therefrom, and paid to the Commissioners
of Inland Revenue, the amount which would have been payable for duty
in respect of the money if there had been a grant of representation from
a court in the United Kingdom.
47 a 4.8 VICT. (18841) c. 24.
To amend the Colonial Attorneys Relief Acts—20 &
21 Vict. c. 39. s. 3; 37 80 38 Vict. c. Z.t1--—by extending
them to certain colonies.
The Act provided that upon application by the Gover-
nor of any colony, and after it has been shown that the
system of jurisprudence in such colony or dependency
fulﬁls the conditions speciﬁed in sec. 3 of 20 & 21 Vict.
c. 39., and that English attorneys are admitted to prac-
tise in such colony on production of their certiﬁcates
without examination, 850., except in the laws of the
colony so far as they differ from the law of England,
Her Majesty may by Order in Council direct the Colonial
Attorneys Relief Act to come into operation as to such
colony, &c., although persons may in certain cases be
admitted as attorneys in such colony or dependency
without possessing all the qualiﬁcations speciﬁed in
sec. 3 of the 20 & 21 Vict. c. 39. That is to say, no
1884.] 47 a 48 vre'r. 5. 31.—REMOVAL or GRIMS. 841
attorney or solicitor of such colony shall be admitted
as a solicitor of the Supreme Court in England, unless,
in addition to the requirements of the Colonial Attorneys
Relief Act, he prove by aﬁildavit that he has served for ﬁve
years under articles of clerkship and passed an examina-
tion, and, further, that he has since been in actual prac-
tice as attorney, &c. in such colony for seven years at
the least.
47 8t 48 Vict. (1884) c. 31.
An Act to make further provision respecting the Re-
moval of Prisoners and Criminal Lunatics from Her
Majesty’s possessions out of the United Kingdom.
- [28th July 1884.]
' HEREAS it is expedient to provide for the removal of prisoners
undergoing sentence, and of criminal lunatics from one British
possession to another British possession, or to the United Kingdom :
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows:
Preliminary.
1, This Act may be cited as the Colonial Prisoners Removal Act,
1884.
Prisoners removal.
2, Where as regards a prisoner undergoing sentence of imprisonment
in any British possession for any offence it appears to the removing
authority herein-after mentioned either—
(a) that it is likely that the life of the prisoner will be' endangered
or his health permanently injured by further imprisonment
in such British possession; or,
(b) that the prisoner belonged, at the time of committing the said
offence, to the Royal Navy or to Her Majesty’s regular
4 military forces; or,
(c) that the offence was committed wholly or partly beyond the
limits of the said British possession; or,
(d) that by reason of there being no prison in the said British
possession in which the prisoner can properly undergo his
sentence or otherwise, the removal of the prisoner is expe-
dient for his safer custody or for more efficiently carrying
his sentence into effect ; or,
(e) that the prisoner belongs to a class of persons who under the
law of the said British possession are subject to removal
under this Act ; '
in any such case the removing authority may, subject nevertheless to the
regulations in force under this Act, order such prisoner to be removed
to any British possession or to the United Kingdom to undergo his
sentence or the residue thereof.
Short title.
Removal of
prisoners from
British posses-
sions in certain
cases.
842 47 81:48 VICT. c. 31.—VARYING SENTENCE. [1884.
Return of
removed
prisoner.
Regulations as
to removal.
Removing
authority.
Evidence of act
of Government
of British pos-
session or See-
retary of State.
3,——(1.) Where a prisoner has been removed in pursuance of this Act,
a Secretary of State, or the Government of a British possession to which ,
the prisoner has been so removed, may order the prisoner, for the-
purpose of undergoing the residue of his sentence, to be returned to _
the British possession from which he was removed.
(2.) If a Secretary of State, or the Government of a British possession "
to which a prisoner is removed under this Act, requires the prisoner to
be returned for discharge to the British possession from which he was
removed, the prisoner shall, in accordance with the regulations under
this Act, be returned to the said British possession for the purpose of
being there discharged at the expiration of his sentence.
be entitled to be sent free of cost to the, British possession from which
he was removed;
Provided that where a prisoner at the date of his sentence belonged to
the Royal Navy or to Her Majesty’s regular military forces, nothing.
in this section shall require such prisoner to be returned to the British
possession from which he was removed, or entitle him to be sent there
free of cost.
4,—(1.) It shall be lawful for Her Majesty in Council from time to
time to make, and when made, revoke and vary regulations as to the
removal, return, and discharge of prisoners under this Act.
(2.) The regulations may provide for varying the conditions of a
sentence of imprisonment passed in a British possession, where they
differ from the conditions of a sentence of imprisonment in the part of
Her Majesty’s dominions to which the prisoner is removed, with a view
to bringing them into conformity with the latter conditions, but the
prisoner shall not by reason of such variation undergo an imprisonment
of any longer duration; and Where the latter conditions appear to a
Secretary of State to be more severe than the former conditions, the
Secretary of State may remit a portion of the imprisonment, so that the
punishment undergone by the prisoner shall not in the opinion of the
Secretary of State be more severe than the punishment to which the
prisoner was originally sentenced, and the sentence of imprisonment
shall, so long as the prisoner remains in the part of Her Majesty’s
dominions to which he is removed, be carried into effect as if the con-
ditions thereof as so varied were the conditions of the original sentence.
(3.) The regulations may also provide for the forms to be used under
this Act and generally for the execution of this Act.
(4.) All regulations made under this section shall be duly observed by
all persons, and shall be laid before both Houses of Parliament as soon
as may be after they are made.
5, The removing authority for the purposes of this Act shall be a
Secretary of State acting with the concurrence of the Government of
every British possession concerned. '
6,-—(1.) The concurrence of the Government of a British possession,
and any requisition by the Government of a British possession, may be
given or made by the Governor in Council or such other authority as
may be from time to time provided by the law of that possession, but
shall be signiﬁed by writing under the hand of the Governor or of the
Colonial Secretary or of any other officer appointed in this behalf by the
law of that possession.
(2.) Any writing purporting to give such concurrence or make such
requisition, and to be signed by the Governor or Colonial Secretary or
other officer for the time being, shall be conclusive evidence that the
In any other
case a prisoner when discharged at the expiration of his sentence shall‘
1884.] 47 a 48 VICT. c. 31.-.-O()NDITIONS. 843
concurrence of or requisition by the Government of the British posses-
sion has been duly given or made according to law; and any writing
purporting to be under the hand of a Secretary of State, and to order
the removal of a prisoner from a British possession, shall be conclusive
evidence that such order has been duly given by the Secretary of State,
and every such writing as above in this section mentioned shall be
admissible in evidence in any court in Her Majesty’s dominions without
further proof.
'7,—(1.) Where the removal of a prisoner from a British possession
is ordered in pursuance of this Act, a Secretary of State or the Governor
of the British, possession may by warrant under his hand direct the
prisoner to be removed to the part of Her Majesty’s dominions men-
tioned in the said order, and for that purpose to be delivered into the
custody of the persons named or described in the warrant or some one
or more of them, and to be held in custody and conveyed by sea or
otherwise to the said part of Her Majesty’s dominions, there to undergo
his sentence, or the residue thereof, until returned in pursuance of this
Act or discharged, and such warrant shall be forthwith executed accord-
ing to the tenor thereof.
(2.) Where a prisoner is to be returned to a British possession, a
Secretary of State, or the Governor of the possession in which he has
been undergoing his sentence, shall issue a like warrant, which shall be
duly executed according to the tenor thereof.
(3.) Every warrant purporting to be issued in pursuance of this Act,
and to be under the hand of a Secretary of State or Governor of a
British possession, shall be received in evidence in every court of justice
in Her Majesty’s dominions without further proof‘, and shall be evidence
of the facts therein stated, and all acts done in pursuance of such warrant
shall be deemed to have been authorized by law.
8,—~(1.) Every prisoner removed in pursuance of this Act shall, until
he is returned in pursuance of this Act, be dealt with in the part of Her
Majesty‘s dominions to which he is removed, in like manner as if his
sentence (with such variation, if any, of the conditions thereof as may
have been duly made in pursuance of regulations under this Act) had
been duly awarded in that part, and shall be subject accordingly to all
laws and regulations in force in that part, with the following qualiﬁca-
tions, that his conviction, judgment, and sentence may be questioned in
the part of Her Majesty’s dominions from which he has been removed
in the same manner as if he had not been removed, and that his sentence
may be remitted and his discharge ordered in the same manner and by
the same authority as if he had not been removed.
(2.) The ofﬁcer in charge of any prison, on request by any person
having the custody of a prisoner under a warrant issued in pursuance of
this Act, and on payment or tender of a reasonable amount for expenses,
shall receive such prisoner and detain him for such reasonable time as
may be requested by the said person for the purpose of the proper
execution of the warrant.
9,——-(1.) If a prisoner while in custody in pursuance of this Act, or
under a warrant issued in pursuance of this Act, escapes, by breach of
prison or otherwise, out of custody, he may be retaken in the same
manner as a person convicted of a crime against the law of the place to
which he escapes may be retaken upon an escape.
(2.) A person guilty of the offence of so escaping or of attempting so
to escape, or of aiding or attempting to aid any such prisoner so to
escape, may be tried in any of the following parts of Her Majesty’s
Warrant for
removal of
prisoner.
Dealing with
removed
prisoner.
Escape of
prisoner from
custody.
8414 47 & 48 VICT. c. 31.—-CR[M. LUNATICS. [1884.
dominions, namely, the part to which and the part from which the
prisoner is being removed or returned, and the part in which the prisoner
escapes, and the part in which the offender is found, and such oﬁence
shall be deemed to be an offence against the law of the part of Her
Majesty’s dominions in which he may be so tried, and for all purposes
of and incidental to the apprehension, trial, and punishment of the
person accused of such oﬁence, and of and incidental to any proceedings
and matters preliminary, incidental to, or consequential thereon, and of
and incidental to the jurisdiction of any court, constable, or oﬁicer with
reference to such offence, and to the person accused thereof, such offence
_ shall be deemed to have been committed in the said part, and such
37 8t 88 Vict. person may be punished in accordance with the Courts (Colonial) J uris-
0- 27- diction Act, 1874.
Criminal Lunatics.
Application 10.—(1.) The provisions of this Act shall apply to a person in custody
of Act to 1'6- as a criminal lunatic in like manner, so far as consistent with the tenor
3331:3112; luna_ thereof, as they apply to a prisoner undergoing sentence of_imprison_-
tics, ment; and separate regulations may be made by Her Majesty in Council
under this Act in relation to criminal lunatics, and (subject to those
regulations) all laws and regulations in force in the part of Her Majesty’s
dominions in which a criminal lunatic removed or returned is for the
time being in custody under a warrant issued in pursuance of this Act
shall apply to such criminal lunatic as if he had become a criminal lunatic
in that part.
(2.) Where a person who is a criminal lunatic by reason of being
unﬁt to be tried for an offence is removed in pursuance of this Act, and
a Secretary of State or the Government of the British possession to or
from which such person was removed considers that such person has
become sufficiently sane to be tried for the said offence, and requires
him to be returned for trial to the British possession from which he was
removed, he shall, in accordance with the regulations under this Act, he
returned as a prisoner to the said British possession for the purpose of
being there tried for the said offence, and shall be removed thither in
custody in like manner as if he had been arrested under a warrant (in a
charge for the said oﬁence.
Miscellaneous.
Cost of re- 11_—(l.) The cost of the removal of any prisoner or criminal lunatic
moval- under this Act and of his maintenance while in conﬁnement, and of his
return, and of his being sent after discharge to any place, shall be paid
in such manner as may be arranged between the Governments of the
British possessions concerned and the Secretary of State, subject, as
regards any cost to be paid out of moneys provided by Parliament‘, to
the consent of the Commissioners of Her Majesty’s Treasury.
(2.) Nothing in this Act shall affect any power to recover the expenses
of removing or returning any prisoner or criminal lunatic from the pro-
perty of such prisoner or criminal lunatic or otherwise.
Power of legis- 12, If the legislature of a British possession pass any law—
la'tlufe 0f (a) for determining the authority by whom and the manner in
221521;’: ESP'aSS which any jurisdiction, power, or concurrence under this
jaws for Act is to be exercised or given; or
carrying Act (b) for pay ment of the costs incurred in the removal, maintenance,
into effect. return, or sending back after discharge of a prisoner or
criminal lunatic ; or
1884.] ,47 a 48 VIGT. c; 31.—TERMS USED. 845
(c) for dealing in such possession with prisoners or criminal luna-
tics removed thereto in pursuance of this Act; or
(d) for making any class of prisoners subject to removal under
this Act; or
(8) otherwise in any manner for the carrying of this Act or any
part thereof into effect as regards the said possession,
it shall be lawful for Her Majesty in Council to direct that such law
or any part thereof shall with or without modiﬁcation or alteration be
recognised and given eﬁect to throughout Her Majesty’s dominions and
on the high seas as if it were part of this Act.
13,—(l.) It shall be lawful for Her Majesty in Council from time
to time to make Orders for the purposes of this Act, and to revoke and
vary any Order so made, and every Order so made shall while it is in
force have the same effect as if it were enacted in this Act.
(2.) An Order in Council made for the purposes of this Act shall be
laid before Parliament as soon as may be after it is made if Parliament
is then in session, or, if not, as soon as may be after the commencement
of the then next session of Parliament.
14:, This Act shall extend to the Channel Islands and Isle qfMan
as if they were part of England and the United Kingdom.
15, It shall be lawful for Her Majesty in Council from time to time
to direct that this Act shall apply as if, subject to the conditions, excep—
tions, and qualiﬁcations (if any) contained in the Order, any place out
of Her Majesty’s dominions in which Her Majesty has jurisdiction,
and which is named in the Order, were a British possession and part
of Her Majesty’s dominions, and to provide for carrying into effect such
application.
16,-—(1.) Nothing in this Act shall affect the provisions of the Army
Act, 1881.
(2.) This Act shall not affect any agreement made either before or
after the passing of this Act under the Colonial Prisoners Removal Act,
1869, nor any provisions contained in the Act of the session of the
fourteenth and ﬁfteenth years of the reign of Her present Majesty,
chapter eighty-one, intituled “An Act to authorize the Removal from
India of Insane Persons charged with Olfences, and to give better effect
to inquisitions of lunacy taken in India.”
1'1, This Act shall apply to a prisoner who has been convicted, and to
a criminal lunatic who has become a criminal lunatic before the passing
of this Act, in like manner as if he had been convicted and become a
criminal lunatic after the commencement of this Act.
18, In this Act,‘ unless the context otherwise requires, the following
expressions have the following meanings; that is to say,
The expression “British possession” does not include any place within
the United Kingdom, the Isle of Alan, or the Channel Islands, but
includes all other territories and places being part of Her Majesty’s
dominions, and all territories and places within Her Majesty’s dominions
which are not part of India and are under one legislature shall be deemed
to be one British possession, and any part of India under a Governor or
Lieutenant-Governor shall be deemed to be one British possession.
The expression “ India” means all territories and places within Her
Majesty’s dominions which are subject to the Governor-General of India
in Council.
Power as to
making and
revocation of
Orders in
Council.
Application of
Act to Channel
Islands and
Isle of Man.
Application of
Act to place
under foreign
jurisdiction
Acts.
See 41 & 42
Vict. c. 67.
Savings.
44 & 45 Vict.
c. 58.
32 8t 33 Vict.
c. 10.
Application of
Act to existing
prisoners and
criminal luna-
tics.
Deﬁnitions.
846 1 a 2 VICT. c. 59.-COPYRIGHT ACTS. ' [1834.
The expression “legislature,” where there are local legislatures as well
as a central legislature, means the central legislature only, and in every
part of India means the Governor-General in Council. '
The expression “Secretary of State” means one of Her Majesty’s -
Principal Secretaries of State.
The expression “ Governor” means any person or persons adminis-
tering the government of a British possession, and includes the Governor-
General of India and also the Governor and Lieutenant-Governor of any
part of India.
The expression “ Colonial Secretary” includes a person performing
the like duties as a Colonial Secretary, whether known as Government
Secretary, Chief Secretary to the Government, or by any other title.
The expression “prison” includes any place for the conﬁnement or
detention of prisoners whether convicted or unconvicted.
The expression “ sentence of imprisonment” means any sentence
involving conﬁnement in a prison, whether combined or not with labour,
and whether known as penal servitude, imprisonment with hard labour,
rigorous imprisonment, imprisonment, or otherwise, and includes a sen-
tence awarded by way of commutation as well as an original sentence
passed by the court.
The expression “criminal lunatic” means a person detained in custody
by reason of his having been charged with an offence, and either found
to have been insane at the time of such offence, or found or certiﬁed or
otherwise lawfully proved to be unﬁt on the ground of his insanity to be
tried for the same, and includes a person convicted of an offence and
afterwards certiﬁed or otherwise lawfully proved to be insane.
[For 48 and 49 Vict. (1885) c. 49., Protection of
Submarine Telegraph, and 50 85 51 Vict. c. 3., sec
Dom. Acts 48 & 5O Vict. respectively]
THE COPYRIGHT ACTS.
1 a 2 vIor. (1834) c. 59.
Repealed by 7 80 8 Vict. c. 12. [which see].
This Act was intituled ‘ ‘ An Act for Securing to Authors
in certain cases the Beneﬁt of International Copyright.”
5 a e vro'r. (1842) c. 45.
Secs. 1 and 30 repealed by S. L. R. Act, 1874 (No. 2), 37 81; 38 Vict.
c. 96. ; and S. L. R. 1888 (No. 2), 51 & 52 Vict. c. 57., repealed the
following parts, namely, the words “ And be it enacted that ” wherever
they occur (except in secs. 9, 27 , and 28), and the word “ that,” wherever
it occurs with reference to the introductory words so repealed. The
words “ And be it enacted,” in secs. 9, 27, and 28 ; sec. 13 to “ passing
of this Act ”; Sec. 16 to “ this Act”; Sec. 17 to “ passing of this Act.”
Preamble; Sec. 4 to "enact that”; Sec. 5 to “enact that,” and the
1842.]- 5a 6 vro'r. c. 45.—COPYRIGHT IN THE cots. 847
word “that” before “it shall”; Sec. 20 to “enact that” and the
word “that” before “the sole,” repealed by S. L. R. (No.2) 1890,
53 & 54 Vict. c. 51. Sec. 14 from “ Court of Common ” to “ vacation,”
from “ by a motion” to “as aforesaid,” and the words “or judge,”
occurring twice; Sec. 15, the words “after the passing of this Act”
repealed by S. L. R. Act, 1893, 56 Vict. c. 14.
This was an Act to amend the law of copyright. The
' preamble repealed 8 Anne, 0. 19.; 41 Geo. 3. c. 107. and
54 Geo. 3. c. 156. By sec. 2 it was enacted that in the
construction of the Act the word “ book” should include
every volume, part or division of a volume, pamphlet,
sheet of letter-press, sheet of music, map, chart, or plan
separately published: That the words “ dramatic piece ”
should include every tragedy, comedy, play, opera, farce,
or other scenic, musical, or dramatic entertainment;
that the word “copyright” should mean “the sole and
exclusive liberty of printing or otherwise multiplying
copies of any subject to which the said word is herein
applied.” That “ personal representative ” should mean
and include every executor, administrator, and next-of-
kin entitled to administration. That “ assigns ” should
mean every person in whom the interest of an author in
copyright shall be vested, whether derived from such
author before or after the publication of any book, and
whether acquired by sale, gift, bequest, or by operation
of law or otherwise. That the words “ British domi-
nions ” should be construed to mean and include all
parts of the United Kingdom of Great Britain and Ire-
land, the islands of Jersey and Guernsey, all parts of
the East and West Indies, and all the colonies, settle-
ments, and possessions of the Crown which now are, or
hereafter may be, acquired. Secs. 3 and 4 provided for
the endurance of the copyright. Sec. 5, that the Privy
Council might license the re-publication of books which
the proprietor of the copyright refused to re-publish
or to allow the re-publication of after the death of the
author. Secs. 6, 7, 8, 9, 10, 11, 12, 13, 14, referred
to delivery of copies to the libraries entitled to them,
and for registration of copyright, and sees. 15 and 16 for
remedy for piracy.
84.8 5 a 6 war 0. 45.-IMPORTED BOOKS. [1842.
No person)
except the pro-
prietor, &c.
shall import in-
to the British
Dominions, for
sale or hire,
any book ﬁrst
composed, &c.,
within the
United King-
dom and re-
printed else-
where, under
penalty of
forfeiture and
also £10 and
double the
value; and _
books may be
seized by
oﬁicers of cus-
toms or excise.
Sec. 17 was as follows : “And be it enacted, that after
the passing of this Act it shall not be lawful for any
person not being the proprietor of the copyright, or some
person authorised by him, to import into any part of the
United Kingdom, or into any other part of the British do-
minions, for sale or hire, any printed book ﬁrst composed
or written or printed and published in any part of the
said United Kingdom, wherein there shall be copyright,
and re-printed in any country or place whatsoever out of
the British dominions, or if any person, not being such
proprietor or person authorized as aforesaid, shall import
or bring, or cause to be imported or brought forjsale or
hire, any such printed book into any part of the British
dominions contrary to the true intent and meaning of
this Act, or shall knowingly sell, publish, or expose to
sale, or let to hire, or have in his possession for sale or
hire any such book, then every such book shall be for-
feited, and shall be seized by any ofﬁcer of customs or
excise, and the same shall be destroyed by such officer;
and every person so offending, being duly convicted
thereof before two justices of the peace for the county
or place in which such book shall be found, shall also for
every such offence forfeit the sum of £10, and double
the value of every copy of such book which he shall so
import or cause to be imported into any part of the
British dominions; or shall knowingly sell, publish, or
expose to sale or let to hire, or shall cause to be sold,
published, or exposed to sale or let to hire, or shall have
in his possession for sale or hire contrary to the true
intent and meaning of this Act £5 to the use of such oﬁicer
of customs or excise, and the remainder of the penalty
to the use of the proprietor of the copyright in such
book.”
Secs. 18, 19, 20, 21, 22 dealt with the right of copy-
right in encyclopaedias, periodicals, reviews or magazines,
‘special arrangements between publisher of articles and
writer; and with music compositions and dramatic
pieces and assignment thereof.
‘
1844.] 7 a 8 vIc'r. c. 12.—INTERNATIONAL COPYRIGHT. 849
Secs. 23 and 24 dealt with the property in pirated copies
and condition precedent to suing, namely, registration
of copyright.
Sec. 25, “And be it enacted that all copyright shall be
deemed personal property, and shall be transmissible by
bequest, or in case of intestacy shall be subject to the
same law of distribution as other personal property, and
in Scotland shall be deemed to be personal and moveable
estate.”
Secs. 26, 27 ,' and 28 dealt with the general issue and
limitation of actions saving the rights of the British
Museum and the other libraries entitled to copies.
Sec. 29, “ And be it enacted that this Act shall extend
to the United Kingdom of Great Britain and Ireland,
and to every part of the British dominions.” 1
By sec. 30 the Act might be amended in that session.
[See ante, p. 91.]
1 See the Canadian Acts with
reference to copyright, 4 8t 5 Vict.
(1841) c. 61; 10 85 11 Vict. (1847)
c. 28; C. S. C. (1859) c. 81; the
Copyright Act, 31 Vict. (1868)
c. 54 [this Act was reserved for
and obtained the assent of Her
Majesty in Council before it be-
came law]; the Copyright Act,
38 Vict- (1875) c. 88 [the ori-
ginal Act is c. 88 of the Canadian
Statutes of 1875, although there is
another Act passed in the same year
also called 0. 88]. See this Act in
R. S. C. c. 62, vol. 1., p.925, and
given as a note to 38 8c 39 Vict. c.
53, which Imperial Act gave eﬁect
to the 38 Vict. (1875) c. 88.
'7 a 8 VIOT. (1844) c. 12.
Sections 1 and 21 repealed by S. L. R. Act, 1874 (No. 2), 37 & 38
Vict. c. 96; sections 14, 17, and 18 repealed by 49 8c 50 Vict. (1886)
c. 33. s. 12, which see.
Preamble, the words “ And be it enacted that” wherever they occur,
except in secs. 6, 7, and 12. The words “ And be it enacted,” in secs.
6, 7, and 12; sec. 13 the word “that ” before “ the times” ; sec. 20 from
“ and the expression Her Majesty ” to “ Majesty,” where it next occurs,
repealed by S. L. R. Act, 1891, 54 8t 55 Vict. c. 57. '
This was an Act relating to International Copyright. .
The preamble and ﬁrst section after citing the Acts 1 & 2 Vict.
c. 59.; 5 & 6 Vict. c. 45.; 4 Will. 4. c. 15.; 8 Geo. 2. c. 13.; 7 Geo.3.
c. 38.; 17 Geo. 3. c. 57.; 6 & 7 Will. 4. c. 59.; 38 Geo. 3. c. 71.; and
54 Geo. 3. c. 56. continued “ And whereas the powers vested in Her
Majesty by the said International Copyright Act [1 & 2 Vict. c. 59.]
are insufficient to enable Her Majesty to confer upon authors of books
8 2340. 3 H
&
Copyright
shall be person-
al property.
Extent of Act.
850 _ 7 a 8 VICT. c 12.—FOREIGN COPYRIGHTS. [1844.
ﬁrst published in foreign countries copyright of like duration, and with
the like remedies for the infringement" thereof, which are conferred and
provided by the said Copyright Amendment Act with respect to authors
of books ﬁrst published in the British dominions, and the said Interna-
tional Copyright Act does not empower Her Majesty to confer any ex-
clusive right of representing or performing dramatic pieces or musical
compositions ﬁrst published in foreign countries upon the authors thereof,
nor to extend the privilege of copyright to prints and sculpture ﬁrst
published abroad, and it is expedient to vest increased powers in Her
Majesty in this respect.” The section then goes on to repeal the Inter-
national Copyright Act, 1 & 2 Vict. c. 59'. That being the main
object of the Act, a summary of its further sections may suffice.
By sec. 2, Her Majesty by Order in Council may direct that authors,
executors, &c., and assigns of such works [books, prints, articles of
sculpture, and other works of art] ﬁrst published in any foreign country
to be named should have copyright therein. The side note says “ within
Her dominions.” '
By sec. 3, if the order applies to books the Copyright Amendment Act
[5 8t 6 Vict. c. 45], and any other Act in force relating to copyright
in books ﬁrst published in this country shall apply to those to which the
order relates, and which shall have been registered in the same manner
as if such books were ﬁrst published in the United Kingdom.
By sec. 4, it was provided if the order applied to prints, articles of
sculpture, or to any such works of art, the Copyright law as to prints
and sculpture, &c. ﬁrst published in this country shall be applied to
those to which the order relates.
By sec. 5, an Order in Council may direct that authors of dramatic
piecesv and musical compositions ﬁrst publicly represented and per-
formed in any foreign countries shall have the sole liberty of repre-
senting in any part of the British dominions such dramatic pieces or
musical compositions during such period as shall be deﬁned in such
order, not exceeding the period allowed to authors, &c. of such works
within the United Kingdom.
By sec. 6, foreign authors were not to have the above privileges,
unless the book or work was registered at Stationers’ Hall, London, and
a copy, if printed, delivered. Secs. '7, 8, 9 referred to registration,
where the book was published anonymously, that the provisions given in
Copyright Amendment Act, 5 8t 6 Vict. c. 45. as to registration, should
apply, and that wrongful entry of ﬁrst publication might be expunged.
By sec. 10, copies of books wherein copyright is subsisting under
virtue of this Act, printed or re-printed in any country other than those
wherein the book was ﬁrst published, the same were absolutely prohibited
to be imported into any part of the British dominions, except with consent
of the registed proprietor, &c. of the copyright.
By sec. 11, Stationers’ Hall was to deliver books deposited there to
the British Museum. By sec. 12, a copy of any subsequent edition
need not be delivered to Stationers’ Hall unless it contain alterations.
By sec. 13, the Orders in Council may specify different periods for
different countries and Works. By sec. 14, no Order in Council was
to have effect unless it was stated, as the grounds for issuing the same,
that reciprocal protection has been secured for works ﬁrst published in
Her Majesty’s dominions. By sec. 15, Orders are to be published in
the -Gazett.c. By sec. 16, to be laid before Parliament. By sec. 17,
Orders may be revoked or altered from time to time. By sec. 18, it
was provided that nothing in this Act contained shall be construed to
preventrthe printing, publication, _or sale of any translation of any book,
1844.] 8 a 9 VICT. c. 93.-CUSTOMS AND BOOKS. 851.
the author whereof and his assigns may be entitled to the beneﬁt of this
Act. By sec. 19, authors of works ﬁrst published in foreign countries,
were not to have any copyright therein or exclusive right to representa-
tion, &c., otherwise than such as he may become entitled to under this
Act. See. 20 was the interpretation clause, and it enacted that in the
construction of this Act the word “ book ” shall be construed to include
“ volume,” “ pamphlet,” “ sheet of letter press,” “ sheet of music,”
“ map,” “ chart,” or “plan,” and the expression “articles of sculpture ”
shall mean all such sculptures, models, copies, and casts as are described
in the Sculpture Copyright Acts [38 Geo. 3. c. 71. and 54 Geo. 3. c. 56.],
and the words “printing” and “reprinting” shall include engraving
and any other method of multiplying copies. Then, after giving the
general interpretation of the meaning of the expressions “ Her Majesty ”
and “ Order of Her Majesty in Council,” “ ofﬁce of the Company of
Stationers,” the section enacted that any word importing the plural of
any person or thing shall mean also the singular, and vice versc'i, and
any word importing the masculine shall also mean the feminine gender.
By sec. 21 the Act might be amended in that session.
8 a 9 VICT. (1845) c. 93.
Repealed by 16 80 17 Vict. c. 107 . s. 358.
This was an Act to regulate the trade of British pos-
sessions abroad. By sec. 9 it was enacted, That any
books wherein the copyright shall be subsisting, ﬁrst
composed or written or printed in the United Kingdom,
and printed or re-printed in any other country, shall be
and are hereby absolutely prohibited to be imported into
British possessions abroad : Provided always, that no such
books shall be prohibited to be imported as aforesaid,
unless the proprietor of such copyright, or his agent,
shall have given notice in writing to the commissioners
of customs that such copyright subsists, and in such
notice shall have stated when the copyright will expire;
and the said commissioners shall cause to be made, and
to be publicly exposed at the several ports in the British
possessions abroad from time to time, printed lists of
books respecting which such notice shall have been
given, and all books imported contrary thereto shall be
forfeited.”
By sec. 63 it was enacted that all laws in force in
any of the British possessions in America repugnant to
this Act shall be void. See for full words of section,
10 & 11 Vict. c. 95.
3 H 2
852 10 & 11 VICT. c. 95.-—CUSTOMS BEG. [1847.
The 16 8t 17 Vict. c. 107. was a Customs Act, and
although it repealed 8 & 9 Vict. c. 93.; by sec. 4141 the
importation into the United Kingdom of the follow-
ing goods was absolutely prohibited: “ Books wherein
the copyright shall be ﬁrst subsisting, ﬁrst composed,
or written or printed in the United Kingdom, and
printed or reprinted in any other country, as to which
the proprietor of such copyright, or his agent, shall
have given to the Commissioners of Customs a notice
in writing that such copyright subsists, such notice
also stating when such copyright will expire.” And
by sec. 46 “ The Commissioners of Customs shall cause
to be made and publicly exposed at the several ports in
the United Kingdom and in Her Majesty’s possessions
abroad printed lists of all books wherein the copyright
shall be subsisting, and as to which ” the above notice has
been given. Re-enacted by 39 80 410 Vict. c. 36. ss. 42
and 441, but the notice to the several ports was conﬁned
to the United Kingdom. Sec. 412 of this Act was ex-
tended by 52 & 53 Vict. (1889) 0. 42. s. 1, by including
in the exclusion “books ﬁrst published in any country
or state, other than the United Kingdom, ‘wherein,
under the’ International Copyright Act, 1886, or any
other Act, or Order in Council made under the authority
of any Act, there is a subsisting copyright in the United
Kingdom, printed or reprinted in any country or state
other than the country or state in which they were ﬁrst
published, and as to which the owner of the copyright,
or his agent,” gives a notice as in sec. 441 of 39 & 410
Vict. c. 36. ' See US Copyright Act, 3 March, 1891.
Amended by tit. 60. c. 3. RS. US. 1878. p. 957.
ss. 49. 48. et seq.
10 a 11 VICT. (184.7) 0. 95.
Sec. 3 repealed by S. L. R. Act, 1875, 38 8t 39 Vict.
c. 66. Preamble and sec. 1 to “same that,” Sec. 2 to
“ enacted that” and the word “that” before “ a copy,”
repealed by S. L. R. Act, 1891, 511 & 55 Vict. c. 67.
1847.] 10 85 ll VICT. c. 95.—COLONIAL PROTECTION. 853
An Act to amend the Law relating to the Pro-
tection in the Colonies of Works entitled to
Copyright in the United Kingdom.
HEREAS by an Act passed in the session of Par-
liament holden in the ﬁfth and sixth years of Her
Majesty, intituled “An Act to amend the Law of Copy-
right,” it is amongst other things enacted that it shall
not be lawful for any person not being the proprietor of
the copyright, or some person authorized by him, to im-
port into any part of the United Kingdom, or into any
other part of the British dominions, for sale or hire, any
printed book ﬁrst composed or written or printed or pub-
lished in any part of the United Kingdom wherein there
shall be copyright, and reprinting in any country or
place whatsoever out of the British dominions : And
whereas by an Act passed in the session of Parliament
holden in the eighth and ninth years of the reign of Her
present Majesty, intituled “ An Act to Regulate the
Trade Oliéllllf) British Possessions abroad,” books wherein
the copyright is subsisting, ﬁrst composed, or written
or printed in the United Kingdom, and printed or re-
printed in any other country, are absolutely prohibited
to be imported into the British possessions abroad : And
whereas by the said last recited Act it is enacted [see
sec. 63], that “ all laws, bye-laws, usages or customs [at
this time or which hereafter shall be] in practice, or
endeavoured or pretended to be in force or practice in
any of the British possessions in America, which are in
any wise repugnant to the said Act [8 80 9 Vict. c. 93.],
or to any Act of Parliament made or [hereafter] to
be made in the United Kingdom, so far as such Act
shall relate to and mention the said possessions, are and
shall be null and void to all intents and purposes what-
soever.” -
Now be it enacted by the Queen’s
lent Majesty, by and with the advice of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same
5 8t 6 Vict.
c. 45.
8 8c 9 Vict.
c. 93.
Her Majesty
most Excel- may Suspend in
certain cases
the prohibition
against the ad-
mission of
books into the
colonies.
854 10 a 11 VIC-T. 8. 95.-PROH1B1TIONS SUSPENDED. [1847.
Orders in
Council to be
published in
the Gazette and
to be laid
before Par-
liament.
that in case the legislature or proper legislative autho-
rity in any British possession shall be disposed to make
due provision for securing or protecting the Rights of
British authors in such possession, and shall pass an Act
or make an ordinance for that purpose, and shall trans-
mit the same in the proper manner to the Secretary of
State, in order that it may be submitted to Her Majesty,
and in case Her Majesty shall be of opinion that such
Act or ordinance is sufficient for the purpose of securing
to British authors reasonable protection within such
possession, it shall be lawful for Her Majesty, if she
think ﬁt so to do, to express her royal approval of such
Act or ordinance, and thereupon to issue an Order in
Council declaring that so long as the provisions of such
Act or ordinance continue in force within such colony
the prohibitions contained in the aforesaid Acts and
herein-before recited, and any prohibitions contained in
the said Acts or in any other Acts, against the importing,
selling, letting out to hire, exposing for sale or hire, or
possessing foreign reprints of books ﬁrst composed,
written, printed, or published in the United Kingdom,
and entitled to copyright therein, shall be suspended so
far as regards such colony, and thereupon such Act or
ordinance shall come into operation, except so far as
may be otherwise provided therein, or as may be other-
wise directed by such Order in Council, anything in the
said last recited Act or in any other Act to the contrary
notwithstanding.
2. And be it enacted, That every such Order in Coun-
cil shall within one ‘week after the issuing thereof be
published in the London Gazette, and that a copy thereof
and of every such‘ Colonial Act or ordinance so approved
as aforesaid by Her Majesty shall be laid before both
Houses of Parliament within six weeks after the issuing
of such order, if Parliament be then sitting, or if Par-
liament be not then sitting, then within six weeks after
the opening of the next session of Parliament.
‘1875.)’ 38 8t 39 ‘VICT. c. 53.—COPYRIGHT AND CAN. LEG. 855
3. And be it enacted, That this Act may be amended $21381)’ be a"
or repealed by any Act to be passed in the present session
of Parliament. [See the next Act and 49 8t 50 Vict.
c. 33.]
38 a 39 vIoT. (1875) c. 53.
Preamble, and to “ same as follows” repealed by
S. L. R. Act 1893 (No. 2) c. 54.
An Act to give effect to an Act of Parliament of
the Dominion of Canada respecting Copyright.
- [2nd Aug. 1875.]
W HEREAS by an Order of Her Majesty in Council,
dated the 7th day of July 1868, it was ordered
that all prohibitions contained in Acts of the Imperial
Parliament against the importing into the Province of
Canada, or against the selling, letting out to hire, ex-
posing for sale or hire, or possessing therein foreign
reprints of books ﬁrst composed, written, printed, or
published in the United Kingdom, and entitled to copy-
right therein, should be suspended so far as regarded
Canada :
And whereas the Senate and House of Commons of
Canada did, in the second session of the third Parliament
of the Dominion of Canada, held in the thirty-eighth
year of Her Majesty’s reign, pass a Bill intituled “ An
Act respecting Copyrights,” which Bill has been re-
served by the Governor-General for the signiﬁcation of
Her Majesty’s pleasure thereon :
' And whereas by the said reserved Bill provision is
made, subject to such conditions as in the said Bill are
mentioned,‘ for securing in ‘Canada the rights of authors
in respect of matters of copyright, and for prohibiting
the importation into Canada of any work for which
copyright under the said reserved Bill has been secured;
and whereas doubts have arisen whether the said re-
served Bill may not be repugnant to the said Order in
d.
856 38 a 39 vrc'r. c. 53.-—AUTHORIZED cAN. ACT. [1875.
Short title of
Act.
Deﬁnition of
terms.
Her Majesty
may assent to
the Bill in.‘
schedule.
Colonial re-
prints not to
be imported
into United
Kingdom.
Council, and it is expedient to remove such doubts and
to conﬁrm the said Bill:
Be it enacted by the Queen’s most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows :
1. This Act may be cited for all purposes as “ The
Canada Copyright Act, 187 5.”
2, In the construction of this Act the words “ book ”
and “ copyright ” shall have respectively the samemean-
ing as in the Act of the ﬁfth and sixth years of Her
Majesty’s reign, chapter forty-ﬁve, intituled “ An Act
to amend the Law of Copyright.”
3, It shall be lawful for Her Majesty in Council to
assent to the said reserved Bill, as contained in the
schedule to this Act annexed, and if Her Majesty shall
be pleased to signify her assent thereto, the said Bill
shall come into operation at such time and in such
manner as Her Majesty may by Order in Council direct ;
anything in the Act of the twenty-eighth and twenty-
ninth years of the reign of Her Majesty, chapter
ninety-three, or in any other Act to the contrary not-
withstanding.
4, Where any book in which,'at the time when the
said reserved Bill comes into operation, there is copy-
right in the United Kingdom, or any book in which
thereafter there shall be such copyright, becomes en-
titled to copyright in Canada in pursuance of the pro-
visions of the said reserved Bill, it shall be unlawful
for any person, not being the owner, in the United
Kingdom, of the copyright in such book, or some person
authorized by him, to import into the United Kingdom
any copies of such book reprinted or republished in
Canada; and for the purposes of such importation the
seventeenth section of the said Act of the ﬁfth and sixth
1875.] 38 a 39 vrc'r. c. 53.-—UANADIAN ACT. 857
years of the reign of Her ~Majesty, chapter forty-ﬁve,
shall apply to all such books in the same manner as if
they had been reprinted out of the British dominions.
5, The said Order in Council, dated the seventh day
of July one thousand eight hundred and sixty-eight,
shall continue in force so far as relates to books which
are not entitled to copyright for the time being, in-pur-
suance of the said reserved Bill. '
See sub-sec. 23, sec. 91, B. N. A. Act, ante p. 91.
SCHEDULE.
An Act respecting Copyrights.
_ Her Majesty, by and with the advice and consent of
the Senate and House of Commons of Canada, enacts
as follows :—
1. The Minister of Agriculture shall cause to be kept
in his office books to be called the “ Registers of Copy-
rights,” in which proprietors of literary, scientiﬁc, and
artistic works or compositions may have the same regis-
tered in accordance with the provisions of this Act.
2. The Minister of Agriculture may, from time to
time, subject to the approval of the Governor in Council,
make such rules and regulations and prescribe such
forms as may appear to him necessary and expedient for
‘the purposes of this Act; such regulations and forms,
being circulated in print for the use of the public, shall
be deemed to be correct for the purposes of this Act,
and all documents executed and accepted. by the said
Minister of Agriculture shall be held valid so far as
relates to all ofﬁcial proceedings under this Act.
_ 3. If any person prints or publishes, or causes to be
printed or published, any manuscript whatever, the said
manuscript having not yet been printed in Canada or
elsewhere, without the consent of- the author or legal
proprietor ﬁrst obtained, such person shall be liable to
the author or proprietor‘ for all damages occasioned by
Order in
Council of 5.
7th July 1868
to continue in
force subject to
this Act.
858 38 & 39 VICT. c. 53.—CANADIAN COPYRIGHT. [1875.
such’ publication, to’ be recovered in any court of com-
petent jurisdiction. _ -
4. Any person domiciled in Canada, or in any part of
the British possessions, or being a‘citizen of any country
having an international copyright treaty with the United
Kingdom, who is the author of any book, map, chart, or _
musical composition, or of any original painting, drawing,
statue, sculpture, or photograph, or who invents, designs,
etches, engraves, or causes to be engraved, etched, or
made from his own design, any print or engraving, and
the legal representatives of such person, shall have the
sole right and liberty of printing, reprinting, publishing,
reproducing, and vending such literary, scientiﬁc, or
artistic works or compositions, in whole or in part, and
of allowing translations to be printed or reprinted and
sold, of such literary works from one language into other
languages, for the term of twenty-eight years from the
time of recording the copyright thereof in the manner
herein-after directed;
(2.) The condition for obtaining such copyright shall
be that the said literary, scientiﬁc, or artistic
works be printed and published, or reprinted
or republished in Canada, or in the case of
works of art that it be produced or reproduced
in Canada, whether they be so published or
produced for the ﬁrst time or contempora-
neously with or subsequently to publication or
production elsewhere: provided that in no
case the exclusive privilege in Canada shall
continue to exist after it has expired any-
where else.
(3.) No immoral, or licentious, or irreligious, or
treasonable, _or seditious literary, scientiﬁc, or
artistic work shall be the legitimate subject of
such registration or copyright.
5. ‘If at the expiration of the aforesaid term of twenty-
eight years, such author, or any of the authors when the
work has been originally composed and made by more
1875.] 38 a 39 vioT. c. 53.—RENEWAL IN CANADA. 859
than one person, be still living, or being dead has left a
widow or a child or children living, the same exclusive
right shall be continued to such author, or, if dead, then
to such widow and child or children (as the case may be)
for the further term of fourteen years ; but in such case
within one year after the expiration of the ﬁrst term the
title of the work secured shall be a second time recorded,
and all other regulations herein required to be observed
in regard I to original copyrights shall be complied with
in respect to such renewed copyright.
6. In all cases of renewal of copyright under this Act
the author or proprietor shall, within two months from
the date of such renewal, cause a copy of the record
thereof to be published once in the “ Canada Gazette.”
7. No person shall be entitled to the beneﬁt of this
Act unless he has. deposited in the office of the Minister
of Agriculture two copies of such book, map, chart,
musical composition, photograph, print, out, or engraving,
and in case of paintings, drawings, statuary, and sculp-
ture, unless he has furnished a written description of
such works of art, and the Minister of Agriculture shall
cause the copyright of the same to be recorded forthwith
in a book to be kept for that purpose, in the manner
adopted by the Minister of Agriculture, or prescribed by
the rules and forms which may be made from time to
time as herein-before provided.
8. The Minister of Agriculture shall cause one of the
two copies of such book, map, chart, musical composi-
tion, photograph, print, out, or engraving aforesaid, to
be deposited in the Library of the Parliament of Canada.
9. No person shall be entitled to the beneﬁt of this
Act, unless ‘he gives information of the copyright being
secured, by causing to be inserted in the several copies
" of every edition published during ‘the term secured, on
the title page, or the page immediately following, if it
be a book, or if a map, chart, musical composition, print,
out, engraving, or photograph, by’ causing to be im-
pressed on the face thereof, or if a volume of maps,
860 88 a 39 VICT. c. 53.--1NTER.IM COPYRIGHT. [1875.
charts, music, engravings, or photographs, upon the title
page or frontispiece thereof, the following words, that
is to say : “ Entered according to Act of Parliament of
Canada, in the year , by AB, in
the office of the Minister of Agriculture.” But as re-
gards paintings, drawings, statuary, and sculptures, the
signature of the artist shall be deemed a suﬁicient notice
of such proprietorship.
10. Pending the publication or republication in Canada
of a literary, scientiﬁc, or artistic work, the author, or
his legal representatives or assigns, may obtain an interim
copyright by depositing in the ofﬁce of the Minister of
Agriculture a copy of the title, or a designation of such
work intended for publication or republication in Canada,
the said title or designation to be registered in an interim
copyright register in the said oﬁice, to secure to the
author aforesaid, or his legal representatives or assigns,
the exclusive rights recognised by this Act, previous to
publication or republication in Canada ; the said interim
registration, however, not to endure for more than one
month from the date of the original publication else-
where, within which period the work shall be printed or
reprinted and published in Canada.
(2.) In all cases of interim registration under this
Act, the author or proprietor shall cause notice
of such registration to be inserted once in the
“ Canada Gazette.”
A literary work intended to be published in
pamphlet or book form, but which is ﬁrst pub-
lished in separate articles in a newspaper or
periodical, may be the subject of registration
within the meaning of this Act while it is so
preliminarily published, provided that the
title of the manuscript and a short analysis
of the work are deposited in the ofﬁce of
the Minister of Agriculture, and that every
separate article so published is preceded by
the words “ Registered in accordance with the
1875.] 38 a 39 vrcr. c. 53.--MAGAZINES FREE. 861
.lopyright Act of 1875:” but the work when
published in book or pamphlet form shall be
subject, besides, to the other requirements of
this Act.
(4.) The importation of newspapers and magazines
published in foreign countries, and containing,
together with foreign original matter, portions
of British copyright works republished with
the consent of the author or his assigns or
under the law of the country where such copy-
right exists, shall not be prohibited.
11. If any other person after the interim registration
of the title of any book according to this Act within the
term herein limited, or after .the copyright is secured,
and for the term or terms of its duration, prints, pub-
lishes, or reprints or republishes, or imports, or causes
to be so printed, publish ed, or imported, any copy or any
translation of such book without the consent of the
person legally entitled to the copyright thereof ﬁrst had
and obtained by assignment, or knowing the same to be
so printed or imported publishes, sells, or exposes for
sale, or causes to be published, sold, or exposed for sale,
any copy of such book without such consent, such offen-
der shall forfeit every copy of such book to the person
then legally entitled to the copyright thereof; and shall
forfeit and pay for every such copy which may be found
in his possession, either printed or printing, published,
imported, or exposed for sale, contrary to the intent of
this Act, such sum not being less than ten cents nor
more than one dollar as the court shall determine; of
which penalty one moiety shall be to the use of Her
Majesty, and the other to the legal owner of such copy-
right, and such penalty may be recovered in any court
of competent jurisdiction.
12. If any person after the recording of any painting,
drawing, statue, or other work of art within the term
or terms limited by this Act, reproduces in any manner,
or causes to be reproduced, made, or sold, in whole or
862 - 38 8t 39 VICT. c. 53.-—EVASION. [1875.
in part, copies of the said works of art without the con-
sent of the proprietor or proprietors, such offender or
offenders shall forfeit the plate or plates on which such
reproduction has been made, and also every sheet thereof
so copied, printed, or photographed, to the proprietor or
proprietors of the copyright thereof, and shall further
forfeit for every sheet of the same reproduction so pub-
lished- or exposed for sale, contrary to the true intent
and meaning of this Act, such sum, not being less than
ten cents nor more than one dollar, as the court shall
determine; and one moiety of such forfeiture shall go
to the proprietor or proprietors, and the other moiety to
the use of Her Majesty, and such forfeiture may be
recoveredin any court of competent jurisdiction.
13. ‘ If any person, after the recording of any print,
cut, or engraving, map, chart, musical composition, or
photograph, according to the provisions of this Act,
within the term or terms limited by this Act, engraves,
etches, or works, sells or copies, or causes to be engraved,
etched, or copied, made or sold, either in the whole or
by varying, adding to, or diminishing the main design
with intent to evade the law, or prints, or reprints, or
imports for sale, or causes to be so printed or imported
for sale, any such map, chart, musical composition, print,
out, or engraving, or any part thereof, without the con-
sent of the proprietor or proprietors of the copyright
thereof ﬁrst obtained as aforesaid, or knowing the same
to be so printed or imported without such consent, pub-
lishes, sells, or exposes for sale, or in any manner disposes
of any such map, chart, musical composition, engraving,
cut, photograph, or print without such consent as afore-
said, such offender or olfenders, shall forfeit the plate or
plates on which such map, chart, musical composition,
engraving, cut, photograph, or print has been copied,
and also every sheet thereof so copied or printed as
aforesaid, to the proprietor or proprietors of the‘ copy-
right thereof, and shall further forfeit for every sheet of
such map,‘ musical composition, print, out, or engraving
1875.] 38 a 39 VICT. c. 53.-PIRACY PENALTY. 863
which may be found, in his or their possession, printed
or published or exposed for sale contrary to the true
intent and meaning of this Act, such sum not being less
than ten cents nor more than one dollar as the court
shall determine; and one moiety of such forfeiture shall
go to the proprietor or proprietors, and the other moiety
to the use of Her Majesty, and such forfeiture may be
recovered in any court of competent jurisdiction.
14. Nothing herein ‘contained shall prejudice the right
of any person to represent any scene or object, notwith-
standing that there may be copyright in some other re-
presentation of such scene or object. 3
15. Works of which the copyright has been granted
and is subsisting in the United Kingdom, and copyright
of which is not secured or subsisting in Canada under
any Canadian or Provincial Act, shall, upon being printed
and published or reprinted and republished in Canada,
be entitled to copyright under this Act; but nothing in
this Act shall be held to prohibit the importation from
the United Kingdom of copies of such works legally
printed there. [See Smiles v. Belford, ante, p. 91.]
(2.) In the case of the reprinting of any such copy-
right work subsequent to its publication in the
United Kingdom, any person who may have
previous to the date of entry of such work
upon the registers of copyright imported any
foreign reprints, shall have the privilege of
disposing of such reprints by sale or otherwise;
the burden of proof, however, in such a case
will lie with such person to establish the extent
and regularity of the transaction.
16. Whenever the author of a literary, scientiﬁc, or
artistic work or composition which may be the subject
of copyright has executed the same for another person
or has sold the same to another person for due consider-
ation, such author shall not be entitled to obtain or to
retain the proprietorship of such copyright, which is
by the said transaction virtually transferred to the pin‘.
864: 38 & 39 VICT. c. 53.—FALSE ASSERTIONS. [1875.
chaser who may avail himself of such privilege, unless a
reserve of the said privilege is specially made by the
author or artist in a deed duly executed.
17. If any person, not having legally acquired the
copyright of a literary, scientiﬁc, or artistic work, inserts
in any copy thereof printed, produced, reproduced, or
imported, or impresses on any such copy that the same
hath been entered according to this Act, or words pur-
porting to assert the existence of a Canadian Copyright
in relation thereto, every person so offending shall incur
a penalty not exceeding three hundred dollars (one moiety
whereof shall be paid to the person who sues for the
same, and the other moiety to the use of Her Majesty),
to be recovered in any court of competent jurisdiction.
(2.) If any person causes any work to be inserted in
the Register of Interim Copyright and fails to
print and publish or reprint and republish the
same within the time prescribed, he shall incur
a penalty not exceeding one hundred dollars
(one moiety whereof shall be paid to the per-
son who sueth for the same, and the other
moiety to the use of Her Majesty), to be re-
covered in any court of competent jurisdiction.
18. The right of an author of a literary, scientiﬁc, or
artistic work to obtain a copyright, and the copyright
when obtained shall be assignable in law, either as to
the whole interest or any part thereof, by an instrument
in writing made in duplicate, and to be recorded in the
office of the Minister of Agriculture, on production of
both duplicates and payment of the fee herein-after pro-
vided. One of the duplicates shall be retained in the
oﬁice of the Minister of Agriculture, and the other re-
turned, with the certiﬁcate of registration, to the party
depositing it.
19. In case of any person making application to
register as his own the copyright of a literary, scientiﬁc,
or artistic work already registered in another person’s
name, or 'in case of simultaneous conﬂicting applications
1875.] 38 a 39 vIcT. c. 5a-rnoor or corms. 865
or of an application made by any person other than the
person entered as proprietor of a registered copyright,
to cancel the said copyright, the party so applying shall
be notiﬁed that the question is to be settled before a
court of competent jurisdiction, and no further proceed-
ings shall be had concerning the subject-before a judg-
ment is produced, maintaining, cancelling, or otherwise
settling the matter ; and this registration, or cancellation,
or adjustment of the said right shall then be made by
the Minister of Agriculture in accordance with such
decision.
20. Clerical errors happening in the framing or copy-
ing of any instrument drawn in the ofﬁce of the Minister
of Agriculture shall not be construed as invalidating the
same, but when discovered they may be corrected under
the authority of the Minister of Agriculture.
21. All copies or extracts certiﬁed from the ofﬁcer of
the Minister of Agriculture shall be received in evidence
without further proof, and without production of the
originals.
22. Should a work copyrighted in Canada become out
of print, a complaint may be lodged by any person with
the Minister of Agriculture, who, on the fact being as-
certained to his satisfaction, shall notify the copyright
owner of the complaint and of the fact; and if, within
a reasonable time, no remedy is applied by such owner,
the Minister of Agriculture may grant a license to any
person to publish a new edition or to import the work,
specifying the number of copies, and the royalty to be
paid on each to the copyright owner.
23. The application for the registration of an interim
copyright, of a temporary copyright, and of a copyright
may be made in the name of the author or of his legal
representative by any person purporting to be the agent
of the said author, and any fraudulent assumption of
such authority shall be a misdemeanor, and shall be
punished by ﬁne and imprisonment accordingly; and
any damage caused by a fraudulent or an erroneous
s 2340 3 I
866 38 & 39 VICT. c. 53.--FALSE ENTRIES. [1875.
assumption of such authority shall be recoverable before
any court of competent jurisdiction.
24. If any person shall wilfully make or cause to be
made any false entry in the registry books of the Min-
ister of Agriculture, or shall wilfully produce or cause
to be tendered in evidence any paper falsely purporting
to be a copy of an entry in the said books, he shall be
guilty of a misdemeanor, and shall be punished accor-
dingly.
25. If a book be published anonymously it shall be
sufﬁcient to enter it in the name of the ﬁrst publisher
thereof, either on behalf of the unnamed author or on
behalf of such ﬁrst publisher, as the case may be.
26. It shall not be requisite to deliver any printed
copy of the second or of any subsequent edition of any
book or books unless the same shall contain very impor-
tant alterations or additions.
27 . No act or prosecution for the recovery of any
penalty under this Act shall be commenced more than
two years after the cause of action arose.
The following fees shall be payable to the Minister of
Agriculture before an application for any of the purposes
herein-after mentioned shall be entertained; that is to
say,
Dol. c.
On registering a copyright - - 1 00
On registering an interim copyright - 0 50
On registering a temporary copyright - 0 50
On recording an assignment - - 1 00
On certiﬁed copy of registration - 0 50
On registering any decision of a court
of justice, for every folio - - O 50
On office copies of documents not above mentioned,
the following charges shall be made :
Del. 0.
For every single or ﬁrst folio certiﬁed ,
copy - - - - - - 0 5O
1875.] 38 a 39 VICT. c. 53.—-CANADIAN FEES. 861
D01. 0.
For every subsequent one hundred
words (fractions from and under
ﬁfty being not counted, and over
ﬁfty being counted for one hundred) 0 25
(2.) The said fees shall be in full of all services per-
formed under this Act by the Minister of
Agriculture, or by any person employed by him
in pursuance of this Act.
All fees received under this Act shall be paid
over to the Receiver General and form part
of the Consolidated Revenue Fund of Canada.
No fees shall be made the subject of exemption
in favour of any person, and no fee exacted by
this Act, once paid, shall be returned to the
person who paid it.
28. “ The Copyright Act of 1868,” [Dominion Act]
being the Act thirty-ﬁrst Victoria, chapter ﬁfty-four,
and all other Acts or parts of Acts inconsistent with the
provisions of this Act, are hereby repealed, subject to
the provisions of the next following section.
29. All copyrights heretofore acquired under the Acts
or parts of Acts repealed shall, in respect of the unex-
pired terms thereof, continue unimpaired, and shall have
the same force and effect as regards the province or
provinces to which they now extend, and shall be assign-
able and renewable, and all penalties and forfeitures in-
curred and to be incurred under the same may be sued
for and enforced, and all prosecutions commenced before
the passing of this Act for any such penalties or for-
feitures already incurred may be continued and com-
pleted as if such Acts were not repealed.
30. In citing this Act it shall be sufficient to call it
“The Copyright Act of 1875.” [See International
Copyright Act, 49 8t 50 Vict. c. 33. post]
3 I 2
868 49 a 50 VICT. c. 33.—INTER. coL. COPYRIGHT. [1886.
Short titles and
construction.
Amendment as
to extent and
effect of order
under Inter-
national
Copyright
Acts.
4.49 8t 50 VICT. c. 33.
An Act to amend the Law respecting International and
Colonial Copyright. [25 Jane 1886.]
HEREAS by the International Copyright Acts Her Majesty is
authorized by Order in Council to direct that as regards literary
and artistic works ﬁrst published in a foreign country the author shall
have copyright therein during the period speciﬁed in the order, not
exceeding the period during which authors of the like works ﬁrst pub-
lished in the United Kingdom have copyright:
And whereas at an international conference held at Berne in the
month of September one thousand eight hundred and eighty-ﬁve a draft
of a convention was agreed to for giving to authors of literary and
artistic works ﬁrst published in one of the countries parties to the con-
vention copyright in such works throughout the other countries parties
to the convention :
And whereas, without the authority of Parliament, such convention
cannot be carried into effect in Her Majesty’s dominions and conse-
quently Her Majesty cannot become a party thereto, and it is expedient
to enable Her Majesty to accede to the convention :
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows:
1,-—(1 This Act may be cited as the International Copyright Act,
1886.
(2.) The Acts speciﬁed in the ﬁrst part of the First Schedule to this
Act are in this Act referred to and may be cited by the short titles in
that schedule mentioned, and those Acts, together with the enactment
speciﬁed in the second part of the said schedule, are in this Act collec-
tively referred to as the International Copyright Acts.
The Acts speciﬁed in the Second Schedule to this Act may be cited
by the short titles in that schedule mentioned, and those Acts are in
this Act referred to, and may be cited collectively as the Copyright
Acts.
(3.) This Act and the International Copyright Acts shall be construed
together, and may be cited together as the International Copyright Acts,
1844: to 1886.
2, The following provisions shall apply to an Order in Council under
the International Copyright Acts :—
(1.) The order may extend to all the several foreign countries named
or described therein :
(2.) The order may exclude or limit the rights conferred by the Inter-
national Copyright Acts in the case of authors who are not sub-
jects or citizens of the foreign countries named or described in
that or any other order, and if the order contains such limitation
and the author of a literary or artistic work ﬁrst produced in one
of those foreign countries is not a British subject, nor a subject
or citizen of any of the foreign countries so named or described,
the publisher of such work, unless the order otherwise provides,
1886.] 49 a 50 VICT. c. 33.-FOREIGN PROTECTION. 869
shall for the purpose of any legal proceedings in the United
Kingdom for protecting any copyright in such work be deemed
to be entitled to such copyright as if he were the author, but
this enactment shall not prejudice the rights of such author and
publisher as between themselves:
The International Copyright Acts and an order made thereunder
shall not confer on any person any greater right or longer term
of copyright in any work than that enjoyed in the foreign country
in which such work was ﬁrst produced.
3,—(1.) An Order in Council under the International Copyright Acts
may provide for determining the country in which a literary or artistic
work ﬁrst produced simultaneously in two or more countries, is to be
deemed, for the purpose of copyright, to have been ﬁrst produced, and
for the purposes of this section “ country ” means the United Kingdom
and a country to which an order under the said Acts applies.
(2.) Where a work produced simultaneously in the United Kingdom,
and in some foreign country or countries is by virtue of an Order in
Council under the International Copyright Acts deemed for the purpose
of copyright to be ﬁrst produced in one of the said foreign countries,
and not in the United Kingdom, the copyright in the United Kingdom
shall be such only as exists by virtue of production in the said foreign
country, and shall not be such as would have been acquired if the work
had been ﬁrst produced in the United Kingdom.
4,—-(1.) Where an order respecting any foreign country is made
under the International Copyright Acts the provisions of those Acts with
respect to the registry and delivery of copies of works shall not apply
to works produced in such country except so far as provided by the
order.
(2.) Before making an Order in Council under the International Copy-
right Acts in respect of any foreign country, Her Majesty in Council
shall be satisﬁed that that foreign country has made such provisions (if
any) as it appears to Her Majesty expedient to require for the protec-
tion of authors of works ﬁrst produced in the United Kingdom.
5,—(l.) Where a work being a book or dramatic piece is ﬁrst pro_
duced in a foreign country to which an Order in Council under the
International Copyright Acts applies, the author or publisher, as the
case may he, shall, unless otherwise directed by the order, have the same
right of preventing the production in and importation into the United
Kingdom of any translation not authorised by him of the said work
as he has of preventing the production and importation of the original
work.
(2.) Provided that if after the expiration of ten years, or any other
term prescribed by the order, next after the end of the year in which
the work, or in the case of a book published in numbers each number
of the book, was ﬁrst produced, an authorised translation in the Erglish
language of such work or number has not been produced, the said right
to prevent the production in and importation into the United Kingdom
of an unauthorised translation of such work shall cease.
(3.) The law relating to copyright, including this Act, shall apply to
a lawfully produced translation of a work in like manner as if it were
an original work.
(4.) Such of the provisions of the International Copyright Act, 1852,
relating to translations as are unrepealed by this Act shall apply in like
manner as if they were re-enacted in this section.
Simultaneous
publication.
Modiﬁcation of
certain
provisions of
International
Copyright
Acts.
Restriction on
translation.
870 49 a 50 vrcr. c. 33.—EVIDENCE or FOREIGN. [1886.
Application of .
Act to existing
works.
Evidence of
foreign copy-
right.
Application of
Copyright Acts
to colonies.
6, Where an Order in Council is made under the International Copy-
right Acts with respect to any foreign country, the author and publisher
of any literary or artistic work ﬁrst produced before the date at which
such order comes into operation shall be entitled to the same rights
and remedies as if the said Acts and this Act and the said order had
applied to the said foreign country at the date of the said production:
Provided that where any person has before the date of the publication
of an Order in Council lawfully produced any work in the United
Kingdom, nothing in this section shall diminish or prejudice any rights
or interests arising from or in connexion with such production which
are subsisting and valuable at the said date.
'7, Where it is necessary to prove the existence or proprietorship of
the copyright of any work ﬁrst produced in a foreign country to which
an Order in Council under the International Copyright Acts applies, an
extract from a register, or a certiﬁcate, or other document stating the
existence of the copyright, or the person who is the proprietor of
such copyright, or is for the purpose of any legal proceedings in the
United Kingdom deemed to be entitled to such copyright, if authenicated
by the official seal of a Minister of State of the said foreign country,
or by the ofﬁcial seal or the signature of a British diplomatic or consular
officer acting in such country, shall be admissible as evidence of the
facts named therein, and all courts shall take judicial notice of every
such official seal and signature as is in this section mentioned, and
shall admit in evidence, without proof, the documents authenticated
by it.
8,——(1.) The Copyright Acts shall, subject to the provisions of this.
Act, apply to a literary or artistic work ﬁrst produced in a British pos-
session in like manner as they apply to a work ﬁrst produced in the
United Kingdom :
Provided that—-
(a) the enactments respecting the registry of the copyright in such
work shall not apply if the law of such possession provides
for the registration of such copyright ; and
(b) where such work is a book the delivery to any persons or body
of persons of a copy of any such work shall not be required.
(2.) Where a register of copyright in books is kept under the authority
of the government of a British possession, an extract from that register
purporting to be certiﬁed as a true copy by the ofﬁcer keeping it, and
authenticated by the public seal of the British possession, or by the
ofﬁcial seal or the signature of a governor of a British possession, or of
a colonial secretary, or of some secretary or minister administering a
department of the government of a British possession, shall be admis-
sible in evidence of the contents of that register, and all courts shall
take judicial notice of every such seal and signature, and shall admit in
evidence, without further proof, all documents authenticated by it.
(3.) Where before the passing of this Act an Act or ordinance has
been passed in any British possession respecting copyright in any literary
or artistic works, Her Majesty in Council may make an Order modifying
the Copyright Acts and this Act, so far as they apply to such British
possession, and to literary and artistic works ﬁrst produced therein, in
such manner as to Her Majesty in Council seems expedient.
(4.) Nothing in the Copyright Acts or this Act shall prevent the
passing in a British possession of any Act or ordinance respecting the
copyright within the limits of such possession of works ﬁrst produced
in that possession ' .
1886.] 49 a 50 vIoT. 5. 33.——MEANING or WORDS. 871
9, Where it appears to Her Majesty expedient that an Order in Application of
Council under the International Copyright Acts made after the passing Internftlonal
of this Act as respects any foreign country, should not apply to any gogyglght
British possession, it shall be lawful for Her Majesty by the same or any Co‘ifnig,
other Order in Council to declare that such Order and the International
Copyrights Act and this Act shall not, and the same shall not, apply to
such British possession, except so far as is necessary for preventing any
prejudice to any rights acquired previously to the date of such Order;
and the expressions in the said Acts relating to Her Majesty’s dominions
shall be construed accordingly ; but save as provided by such declaration
the said Acts and this Act shall apply to every British possession as if it
were part of the United Kingdom.1
10, It shall be lawful for Her Majesty from time to time to make Making. of
Orders in Council for the purposes of the International Copyright Acts Orders: "1
- - ~ - . - - a - Council.
and this Act, for revoking or alter-mg any Order in Council previously
made in pursuance of the said Acts, or any of them.
. (2.) Any such Order in Council shall not aﬁiect prejudicially any
rights acquired or accrued at the date of such Order coming into opera-
tion, and shall provide for the protection of such rights. a
11, In this Act, unless the context otherwise requires— Deﬁnitions.
The expression “ literary and artistic work ” means every book, print,
lithograph, article of sculpture, dramatic piece, musical composition,
painting, drawing, photograph, and other work of literature and art to
which the Copyright Acts or the International Copyright Acts, as the
case requires, extend.
The expression “ author” means the author, inventor, designer, en-
graver, or maker of any literary or artistic work, and includes any person
claiming through the author; and in the case of a posthumous work
means the proprietor of the manuscript of such work and any person
claiming through him; and in the case of an encyclopaedia, review, maga-
zine, periodical work, or work published in a series of books or parts,
includes the proprietor, projector, publisher, or conductor.
The expressions “performed ” and “ performance ” and similar words
include representation and similar words.
The expression “ produced ” means, as the case requires, published or
made, or, performed or represented, and the expression “production” is
to be construed accordingly.
The expression “book published in numbers” includes any review,
magazine, periodical work, work published in a series of books or parts,
transactions of a society or body, and other books of which different
volumes or parts are published at different times.
The expression ‘f treaty ” includes any convention or arrangement.
The expression “ British possession ” includes any part of Her Ma-
jesty’s dominions exclusive of. the United Kingdom; and where parts of
such dominions are under both a central and a local legislature, all parts
under one central legislature are for the purposes of this deﬁnition
deemed to be one British possession.
12, The Acts speciﬁed in the Third Schedule to this Act are hereby Repeal of
repealed as from the passing of this Act to the extent in the third column Acts.
of that schedule mentioned :
Provided as follows:
(a) Where an Order in Council has been made before the passing
of this Act under the said Acts as respects any foreign
1 See L.‘R. Digest for Orders in Council applying Foreign Copyrights to Great
Britain and her colonies.
872 49 a 50 VICT. c. 33.—INTERN. coPYRT. mm. [1886.
country the enactments hereby repealed shall continue in full
force as respects that country until the said Order is revoked.
(b.) The said repeal and revocation shall not prejudice any rights
acquired previously to such repeal or revocation, and such
rights shall continue and may be enforced in like manner as if
the said repeal or revocation had not been enacted or made.
FIRST SCHEDULE.
INTERNATIONAL COPYRIGHT AcTs.
PART I .

Session and Chapter. Title. Short Title.

7 & 8 Vict. l2. - A11 Act to amend the law re- The International
lating to International Copy- Copyright Act,
right. 1 844.
15 8t 16 Vict. c. 12. ! An Act to enable Her Majesty The International
to carry into eﬁect a conven- Copyright Act,
tion with France on the sub- 1852.
ject of copyright, to extend
and explain the Interna-
tional Copyright Acts, and j
to explain the Acts relating
‘ to copyright in engravings.
38 & 39 Vict. c. 12. An Act to amend the law re-

The International


lating to International Copy- 5 Copyright Act,
right. 187 5.
PART 11.
Session and Chapter. Title. Enactment referred to.

25 8t 26 Vict. c. 68. An Act for amending the law 5 Section twelve.
relating to copyright in .
works of the ﬁne arts, and
for repressing the commis-
sion of fraud in the produc-
tion and sale of such works.


lsseJ
873
49 8c 50 VICT. c. 33.-OLD COPYRIGHT ACTS.
SECOND SCHEDULE.
COPYRIGHT AoTs.
Session and Chapter.
Title.
Short Title.

8 Geo. 2. c. 13. - An Act for the encouragement
'7 Geo. 3. c. 38.
15 Geo. 3. c. 53.
17 Geo. 3. c. 57.

of the arts of designing, en- .
graving, and etching, histo-
rical, and other prints by
vesting the properties there-
of in the inventors and en-
gravers during the time
therein mentioned.
An Act to amend and render
more effectual an Act made i
in the eighth year of the
reign of King George the
Second, for encouragement
of the arts of designing, en- ‘
graving, and etching, histo-
rical and other prints, and ‘
for vesting in and securing
to Jane Hogarth, widow,
the property in certain
prints.
An Act for enabling the two
Universities in England, the
four Universities in Scot-
land, and the several Col-
leges of Eton, Westminster,
and l/Vz'nchester, to hold in
perpetuity their copyright in
books given or bequeathed
to-the said universities and
colleges for the advance-
ment of useful learning and
other purposes of education:
and for amending so much
of an Act of the eighth year
of the reign of Queen Anne,
as relates to the delivery of
books to the warehouse
keeper of the Stationers’
Company for the use of the
several libraries therein men-
tioned.
An Act for more effectually se-
curing the property of prints
to inventors and engravers
by enabling them to sue
for and recover penalties in
certain cases.


The Engraving
Copyright Act,
1 7 34.
The Engraving
Copyright Act,
1 766.
The Copyright
Act, 1 775.
The Prints Copy-
right .Act, 1777 .
874 49 a 50 VICT. c. 33.—-OLD oorvnrerrr ACTS.

[1886.
Second Schedule—Copyright Acts—cont.
Session and Chapter. Title. Short Title.
54 Geo. 3. c. 56. - An Act to amend and render The Sculpture
more eﬁectual an Act of His Copyright Act,
present Majesty for en- 1814.
couraging the art of making
new models and casts of
busts and other things there-
in mentioned, and for giving
further encouragement to
such arts.
3 Will. 4. c. 15. - An Act to amend the laws re- The Dramatic
5 80 6 Will 4. c. 65.
6 85 7 Will 4. c. 69.
6 & 7 Will.4. c. 110.
5 81; 6 Vict. c. 45.
10 & 11 Vict. c. 95.
25 80 26 Vict. c. 68.

lating to Dramatic Literary
property.
An Act for preventing the
publication of Lectures
without consent.
An Act to extend the protec-
tion of copyright in prints
and engravings to Ireland.
An Act to repeal so much of an
Act of the ﬁfty-fourth year
of King George the Third,
respecting copyrights, as re-
quires the delivery of a copy
of every published book to
the libraries of Sion College,
the four Universities of
Scotland, and of the Kin g’s
Inns in Dublin.
An Act to amend the law of
copyright.
An Act to amend the law re-
lating to the protection in
the Colonies of works en-
titled to copyright in the
United Kingdom.
An Act for amending the law
relating to copyright in
works of the ﬁne arts, and
for repressing the commis-
sion of fraud in the produc-
tion and sale of such works.

Copyright Act,
1833.
The Lectures
Copyright Act,
1835.
ThePrintsandEn-
gravings Copy-
right Act, 1836.
The Copyright
Act, 1836.
The Copyright
Act, 1842.
The Colonial
Copyright, Act,
1 847.
The Fine Arts
Copyright Act,
1862.

1891.] AMER. COPYRT.—LIBRARIAN or CONGRESS. 875
THIRD SCHEDULE.
AcTs REPEALED.


Session and Chapter. Extent of Repeal.

7 & 8 Vict. c. 12. - An Act to amend the law re- Sections fourteen,
lating to international copy- seventeen, and
right. eighteen.
15 & 16 Vict. c. 12. An Act to enable Her Majesty Sections one to ﬁve
to carry into effect a con— both inclusive,
vention with France on the and sections
subject of copyright, to ex- eightandeleven.
tend and explain the Inter-
national Copyright Acts, and
to explain the Acts relating
to copyright engravings.
An Act for amending the law
relating to copyright in
25 $8 26 Vict. c. 68. So much of section
twelve as incor-
works of the ﬁne arts, and
for repressing the commis-
sion of fraud in the produc-
porates any en-
actment repeal-
ed by this Act.
tion and sale of such works.


AMERICAN COPYRIG llT.
TITLE 60. 5. 3. R.S.U.S. (1878) 957.,
and 26 U.S. S. at L. p. 1107. a
As it stands amended by Act of 3 March 1891, Sess. 2.
c. 565., for the purpose of giving eﬁect to the Berne
International Copyright Convention.
4948. All records and other things relating to copy-
rights and required by law to be preserved, shall be under
the control of the Librarian of Congress, and kept and
preserved in. the Library of Congress ; and the Librarian
of Congress shall have the immediate care and super-
vision thereof, and, under the supervision of the Joint
Committee of Congress on the Library, shall perform all
acts and duties required by law touching copyrights,
Copyrights to
be under
charge of
Librarian of
Congress.
876 AMERIcAN COPYRIGHT-WAY TO OBTAIN. [1891.
Seal of ofﬁce.
Bond of
Librarian .
Annual report.
Persons and
publications
entitled to
copyright.
Term of
copyrights.
Further term
of exclusive
right.
494-9, The seal provided for the office of the
Librarian of Congress shall be the seal thereof, and by it
all records and papers issued from the ofﬁce and to be
used in evidence shall be authenticated.
4950, The Librarian of Congress shall give a bond,
with sureties, to the Treasurer of the United States in
the sum of .8 5000, with the condition that he will render
to the proper ofﬁcers of the Treasury a true account of
all moneys received by virtue of his office.
4951, The Librarian of Congress shall make an
annual report to Congress of the number and description
of copyright publications for which entries have been
made during the year.
4952. The author, inventor, designer, or proprietor
of any book, map, chart, dramatic or musical composi-
tion, engraving, cut, print, or photograph or negative
thereof, or of a painting, drawing, chromo, statue,
statuary, and of models or designs intended to be
perfected as works of the ﬁne arts, and the executors,
administrators, or assigns of any such person, shall, upon
complying with the provisions of this chapter, have the
sole liberty of printing, reprinting, publishing, com-
pleting, copying, executing, ﬁnishing, and vending the
same; and, in the case of dramatic composition, of
publicly performing or representing it or causing it to
be performed or represented by others; and authors or
their assigns shall have exclusive right to dramatize and
translate any of their works for which copyright shall
have been obtained under the laws of the United States.
4953. Copyrights shall be granted for the term of
28 years from the time of recording the title thereof, in
the manner hereinafter directed.
4954. The author, inventor, or designer, if he be
still living, or his widow or children, if he be dead, shall
have the same exclusive right continued for the further
term of 141 years, upon recording the title of the work‘
1891.] AMERICAN COPYRIGHT.-—ASSIGNABILITY or. 877
or description of the article so secured a second time,
and complying with all other regulations in regard to
original copyrights, within six months before the expira-
tion of the ﬁrst term; and such person shall, within two
months from the date of said renewal, cause a copy of
the record thereof to be published in one or more news-
papers printed in the United States for the space of four
weeks.
4955. Copyrights shall be assignable in law, by any
instrument of writing, and such assignment shall be
recorded in the ofﬁce of the Librarian of Congress within
60 days after its execution ; in default of which it shall
be void as against any subsequent purchaser or mortgagee
for a valuable consideration, without notice.
4956, No person shall be entitled to a copyright
unless he shall, on or before the day of publication in
this or any foreign country, deliver at the ofﬁce of the
Librarian of Congress, or deposit in the mail within the
United States, addressed to the Librarian of Congress, at
Washington, District of Columbia, a printed copy of the
title of the book, map, chart, dramatic or musical com-
position, engraving, cut, print, photograph, or chromo,
or a description of the painting, drawing, statue, statuary,
or a model or design for a work of the ﬁne arts for
which he desires a copyright, nor unless he shall also,
not later than the day of the publication thereof in
this or any foreign country, deliver at the office of
the Librarian of Congress, at Washington, District of
Columbia, or deposit in the mail within the United States,
addressed to the Librarian of Congress, at Washington,
District of Columbia, two copies of such copyright book,
map, chart, dramatic or musical composition, engraving,
chromo, cut, print, or photograph, or in case of a painting,
drawing, statue, statuary, model, or design for a work of
the ﬁne arts, a photograph of the same: Provided, that
in the case of a book, photograph, chromo, or lithograph,
the two copies of the same required to be delivered or
deposited as above shall be printed from type set within
Publication of
record.
Assignment of
copyrights and
recording.
Deposit of title
or description
before publi-
cation. 2.
Two copies of
work or
photograph
on day of
publication.
878 AMERICAN COPYRIGHT—FOREIGN PIRAOIES. [1891.
Provisoes to
be made in
the United
States.
Importation
of foreign
editions pro-
hibited.
Exceptions.
Record of
entry and
attested copy.
the limits of the United States, or from plates made
therefrom or from negatives or drawings on stone made
within the limits of the United States, or from transfers
made therefrom. During the existence of such copyright
the importation into the United States of any book,
chromo, lithograph, or photograph so copyrighted, or
any edition or editions thereof, or any plates of the same
not made from type set, negatives, or drawings on stone
made within the limits of the United States, shall be,
and it is hereby, prohibited, except in the cases speciﬁed
in paragraphs 512 to 516 inclusive in sec. 2 of the Act
entitled “ An Act to Reduce the Revenue and Equalize
the Duties on Imports, and for other purposes,” approved
October 1st, 1890 [see Revenue Act, Sess. 1. c.1244;
26 US. Statutes at Large, 1889-91, p, 604]; and
except in the case of persons purchasing for use and
not for sale, who import subject to the duty thereon
not more than two copies of such book at any one time;
and except in the case of newspapers and magazines,
not containing in whole or in part matters copy-
righted under the provisions of this Act, unauthorized
by the author, which are hereby exempted from
prohibition of importation. Provided, nevertheless, that
in the case of boohs in foreign languages, of which
only translations in English are copyrighted, the pro-
hibition of importation shall apply only to the translation
of the same, and the importation of the books in the
original language shall be permitted.
4,957, The Librarian of Congress shall record the
name of such copyright book or other article, forthwith,
in a book to be kept for that purpose, in the words
following :——“ Library of Congress, to wit: Be it remem-
bered that on the, day of , A.B. of
hath deposited in this oﬁice the title of a book
[map, chart, or otherwise, as the case may be, or descrip-
tion of the article], the title or description of which is
in the following words, to wit [here insert the title or
description], the right whereof he claims as author
1891.] AMERICAN COPYRIGHT—FEES IN U. s. 879
[originator or proprietor,as the case may be] in conformity
with the laws of the United States respecting copyrights.
C.D., Librarian of Congress.” And he shall give a copy
of the title or description, under the seal of the Librarian
of Congress, to the proprietor whenever he shall require it.
4958, The Librarian of Congress shall receive from
the persons to whom the services designated are rendered
the following fees :
First. For recording the title or description of any
copyright book or other article, 50 cents.
Second. For every copy under seal of such record
actually given to the person claiming the copyright, or
his assigns, 50 cents.
Third. For recording and certifying any instrument
of writing for the assignment of a copyright, $1.
Fourth. For every copy of an assignment, $1.
All fees so received shall be paid into the Treasury of
the United States; provided that the charge for recording
the title or description of any article entered for copy-
Fees.
Charge for
recording
production of
foreigner.
right, the production of a person not a citizen or resident ’
of the United States, shall be $1, to be paid as above
into the Treasury of the United States, to defray the
expenses of lists of copyrighted articles as hereinafter
provided for.
And it is hereby made the duty of the Librarian of
Congress to furnish to the Secretary of the Treasury
copies of the entries of titles of all books and other
articles wherein the copyright has been completed by
the deposit of two copies of such book printed from type
set within the limits of the United States, in accordance
with the provisions of this Act, and by the deposit of
two copies of such other article made or produced in the
United States; and the Secretary of the Treasury is
hereby directed to prepare and print, at intervals of not
more than a week, catalogues of such title entries for
distribution to the Collectors of Customs of the United
States, and to the postmasters of all post-oﬁfices receiving
foreign mails, and such weekly lists, as they are issued,
List of copy-
righted articles
to be furnished
to Treasury.
Weekly cata-
logues for
customs and
postal oﬁicials.
880 AMERICAN COPYRIGHT-SECOND EDITIONS. [1891.
Rules to pre-
vent prohibited
importations.
Copy of subse-
quent editions.
Additions by
foreign authors.
Penalty for
omission.
Postmasters to
give receipts.
Publication of
notice of
entry for copy-
right pre-
scribed.
shall be furnished to all parties desiring them, at a sum
not exceeding $5 per annum ; and the Secretary and the
Postmaster-General are hereby empowered and required
to make and enforce such rules and regulations as shall
prevent the importation into the United States, except
upon the conditions above speciﬁed, of all articles
prohibited by this Act.
4959, The proprietor of every copyright book or
other article shall deliver at the office of the Librarian
of Congress, or deposit in the mail, addressed to the
Librarian of Congress at Washington, District of Colum-
bid, a copy of every subsequent edition wherein any
substantial changes shall be made. Provided, however,
that the alterations, revisions, and additions made to
books by foreign authors, heretofore published, of which
new additions shall appear subsequently to the taking
eﬁect of this Act, shall be held and deemed capable of
being copyrighted as above provided for in this Act,
unless they form a part of the series in course of
publication at the time this Act shall take effect.
4960, For every failure on the part of the pro-
prietor of any copyright to deliver or deposit in the
mail either of the published copies, or descriptions, or
photograph, required by sections 4956 and 4959, the
proprietor of the copyright shall be liable to a penalty
of $25, to be recovered by the Librarian of Congress,
in the name of the United States, in an action in the
nature of an action of debt, in any district court of the
United States within the jurisdiction of which the
delinquent may reside or be found.
4961, The postmaster to whom such copyright
book, title, or other article is delivered shall, if re-
quested, give a receipt therefor; and when so de-
livered he shall mail it to its destination.
4962, No person shall maintain an action for the
infringement of his copyright unless he shall give
notice thereof by inserting in the several copies of every
1891.] AMERICAN COPYRIGHT—FALSE NOTICES. 881
edition published, on the title page or the page imme-
diately following, if it be a book; or if a map, chart,
musical composition, print, out, engraving, photograph,
painting, drawing, chromo, statue, statuary, or model
or design intended to be perfected and completed as a
work of the ﬁne arts, by inscribing upon some portion
of the face or front thereof, or on the face of the
substance on which the same shall be mounted, the
following words: “Entered according to Act of
Congress, in the year —-, by A. B., in the office of
the Librarian of Congress, at Washington.”
4963. Every person who shall insert or impress Penalty for
such notice, or words of the same import, in or upon Silfinnroyim
any book, map, chart, dramatic or musical composi-
tion, print, out engraving, or photograph, or other
article, for which he has not obtained a copyright, shall
be liable to a penalty of $100, recoverable one-half for
the person who shall sue for such penalty and one-half
to the use of the United States.
4964. Every person, who, after the recording of the title of any book and the depositing of two copies of booked
such book, as provided by this Act, shall contrary to the
provisions of this Act, within the term limited, and
without the consent of the proprietor of the copyright
ﬁrst obtained in writing, signed in presence of two
or more witnesses, print, publish, dramatize, translate,
or import, or knowing the same to be so printed,
published, dramatized, translated, or imported shall
sell or expose to sale any copy of such book, shall
forfeit every copy thereof to such proprietor, and shall
also forfeit and pay such damages as may be recovered in a civil action by such proprietor in any court of c
competent jurisdiction.
4965. If any person after the recording of the title Violations of
copyright of
of any map, chart, dramatic or musical composition, maps, charts,
- . prints, designs,
print, out, engraving, or photograph, or chromo, or of the 6,0,
description of any painting, drawing, statue, statuary, or
model or design intended to be perfected and executed as
s 2340. 3 K

882 AMERICAN COPYRIGHT—FORFEITURES/ [1891.
Forfeiture of
plates, sheets,
&e.
Honey penalty.
Disposition of
proceeds.
For violating
copyright of
dramatic
compositions.
Damages for
printing or
publishing any
manuscript-
without con-
sent of author.
Limitation of
. action in copy-
right cases.
a work of the ﬁne arts as provided by this Act, shall,
Within the term limited, contrary to the provisions of this
Act, and without the consent of the proprietor of the
copyright ﬁrst obtained in writing, signed in presence
of two or more witnesses, engrave, etch or work, copy,
print, publish, dramatize, translate, or import, either in
Whole or in part, or by varying the main design with
intent to evade the law, or, knowing the same to be
so printed, published, dramatized‘, translated, or im-
ported, shall sell or expose to sale any copy of such map
or other article as aforesaid, he shall forfeit to the pro-
prietor all the plates on which the same shall be copied
and every sheet thereof, either copied or printed, and.
shall further forfeit $1 for every sheet of the same found
in his possession, either printing, printed, copied, pub-
lished, imported, or exposed for sale, and in case of a
painting, statue, or statuary, he shall forfeit $10 for
every copy of the same in his possession, or by him sold
or exposed for sale ; one half thereof to the proprietor,
and the other half to the use of the United States.
4966, Any person publicly performing or represent-
ing any dramatic composition for Which a copyright has
been obtained, without the consent of the proprietor
thereof, or his heirs or assigns, shall be liable for
damages therefor; such damages in all cases to be
assessed at such sum, not less than $100 for the ﬁrst
and $50 for every subsequent performance, as to the
court shall appear to be just. [Boucicault '0. Fox,
5 Blatch 87. The Same 7). Hart, 13 Blatch 47.]
4967, Every person Who shall print or publish any
manuscript Whatever Without the consent of the author
or proprietor ﬁrst obtained shall be liable to the author
or proprietor for all damages occasioned by such injury.
4968. No action shall be maintained in any case of
forfeiture or penalty under the Copyright Laws unless
the same is commenced within two years after the cause
of action has arisen.
1891.] AMERICAN COPYRIGHT.—INJUNCTIONS. 883
4969. In all actions arising under the laws respect-
ing copyrights, the defendant may plead the general
issue, and give the special matter in evidence.
497C. The circuit courts, and district courts having
the jurisdiction of circuit courts, shall have power, upon
bill of equity, ﬁled by any party aggrieved, to grant
in] unctions to prevent the violation of any right secured
by the laws respecting copyrights, according to the
course and principles of courts of equity, on such terms
as the court may deem reasonable.
4971, which enacted that publications by aliens and
non-residents were not privileged, is, of course, now
repealed [sec. 10.] ’
Sec.11 of Sess. 2. c. 565. 3 March 1891 (26 US.
Stat. at Large p. 1109) was :
“ That for the purpose of this Act each volume of
a book in two or more volumes, when such volumes
are published separately, and the ﬁrst one shall not
have been issued before this Act shall take effect, and
each number of a periodical, shall be considered an
independent publication, subject to the form of copy-
righting as above.”
By Sec. 12 the Act came into force 1 July 1891.
See-13. That this Act shall only apply to a citizen
or subject of a foreign state or nation when such foreign
state or nation permits to citizens of the United States
of America the beneﬁt of copyright 011 substantially the
same basis as its own citizens; or when such foreign
state or nation is a party to an international agreement
which provides for reciprocity in the granting of copy-
right, by the terms of which agreement the United
States of America may, at its pleasure, become a party
to such agreement. The existence of either of the
conditions aforesaid shall be determined by the President
of the United States, by Proclamation made from time
to time as the purposes of this Act may require.
Defences in
action in copy-
right cases.
Injunctions in
copyright eases.
Volumes sepa-
rately copy—
ri gli ta 1 Fl 0 .
To take effect
1 July 1891.
Applicable to
citizens of
foreign coun-
tries permitting
similar rights.
Treaty stipula-
tions.
Proelamat ions.
3 K 2
884 49 a 50 VICT. c. 48.-MEDI_CAL mm. [1886.
Registration of
colonial
practitioner
with recognised
diploma.
By US. Act 3 March 1893, Sess. 2. c. 215., an exten-
sion of time to 1 March 1893 was granted for delivery
of copies to the Librarian of Congress where there had
been a failure to deliver copies.
And in 27 US Stat. at Large p. 981 is given a Procla-
mation by the US. extending the privileges of the Act
to citizens of Belgium, France, and Great Britain and
Switzerland, on the ground “ that satisfactory official
assurance have been given that in Belgium, France, Great
Britain, and the British possessions and Switzerland,
the law permits to citizens of the US. the beneﬁt of
copyright on substantially the same basis as the citizens
of those countries.” The beneﬁts are also extended to
Germany, ibid. p. 1021; and Italy, ibid. p. 1043.
49 VICT. (1883) c. 13.
Cape Race Lighthouse, Neuy‘oundland, transferred to
Canada.
49 a 50 VICT. (1886) c. 48.
An Act to amend the Medical Acts.
part of the Act enacted as follows :—
The Colonial
PART II.
CoLoNIAL AND FOREIGN PR-AcTn‘IoNEns.
11, On and after the prescribed day where a person shows to the
satisfaction of the registrar of the General Council that he holds some
recognised colonial medical diploma or diplomas (as hereinafter deﬁned)
granted to him in a British possession to which this Act applies, and
that he is of good character, and that he is by law entitled to practise
medicine, surgery, and midwifery in such British possession, he shall, 011
application to the said registrar, and on payment of such fee not exceed-
ing ﬁve pounds as the General Council may from time to time determine,
be entitled, without examination in the United Kingdom, to be registered
as a colonial practitioner in the medical register;
Provided that he proves to the satisfaction of the registrar any of the
following circumstances :—
(1.) That the said diploma or diplomas was or were granted to him at
a time when he was not domiciledin the United Kingdom, or in
the course of a period of not less than ﬁve years during the whole
of which he resided out of the United Kingdom ; or
That he was practising medicine or surgery or a branch of
medicine or surgery in the United Kingdom 011 the said pre-
1886.] 49 a 50 VICT. c. 48.--MEDIGAL DIPLoMAs. 885
scribed day, and that he has continuously practised the same
either in the United Kingdom or elsewhere for a period of not
less than ten years immediately preceding the said prescribed day.
12, On and after the said prescribed day where a person shows to Registration of
the satisfaction of the registrar of the General Council that he holds ffnjmgn P11510-
some recognised foreign medical diploma or diplomas (as herein-after iétggggsgllth
deﬁned) granted in a foreign country to which this Act applies, and that dimgma.
he is of good character, and that he is by law entitled to practise
medicine, surgery, and midwifery in such foreign country, he shall, on
application to the said registrar, and on payment of such fee not exceed-
ing ﬁve pounds as the General Council may from time to time determine,
be entitled, without examination in the United Kingdom, to be registered
as a foreign practitioner in the medical register ;
Provided that he proves to the satisfaction of the registrar any of the
following circumstances :—
(1.) That he is not a British subject; or
(2.) That, being a British subject, the said diploma or diplomas was
or were granted to him at a time when he was not domiciled in
the United Kingdom, or in the course of a period of not less
than ﬁve years during the whole of which he resided out of the
United Kingdom; or
That, being a British subject, he was practising medicine or
surgery, or a branch of medicine or surgery, in the United King-
dom on the said prescribed day, and that he has continuously
practised the same in the United Kingdom or elsewhere for a
period of not less than ten years immediately preceding the said
prescribed (lay.
13,-(1) The medical diploma or diplomas granted in a British Medical
possession or foreign country to which this Act applies, which is or are ‘11%310ln‘1‘0f1
to be deemed such recognised colonial or foreign medical diploma $81.22: or diplomas as is or are required for the purposes of this Act, shall be titionbel. 1Wh0n
such medical diploma or diplomas as may be recognised for the time deemed to be
being by the General Council as furnishing a suﬂicient guarantee of the l'ccognised-
possession of the requisite knowledge and skill for the eflicient practice
of medicine, surgery, and midwifery.
(2.) “There the General Council have refused to recognise as afore-
said any colonial or foreign medical diploma, the Privy Council, on
application being made to them, may, if they think ﬁt, after considering
such application, and after communication with the General Council,
order the General Council to recognise the said diploma, and such order
shall be duly obeyed.
(3.) If a person is refused registration as a colonial or foreign
practitioner on any other ground than that the medical diploma or
diplomas held by such person is or are not such recognised medical,
diploma or diplomas as above deﬁned, the registrar of the General
Council shall, if required, state in writing the reason for such refusal,
and the person so refused registration may appeal to the Privy Council,
and the Privy Council, after communication with the General Council,
may dismiss the appeal or may order the General Council to enter the
name of the appellant on the register.
(4.) A person may, if so entitled under this Act, be registered both as
a colonial and a foreign practitioner.
14:, The medical register shall contain a separate list of the names Separate list of
and addresses of the colonial practitioners, and also a separate list of the Colopial and
names and addresses of the foreign practitioners registered under this fol‘elgn Pmc‘
886 49 a savior. c. 48.—COL. MEDICALS. [1886.
titioners in
medical
register.
Medical titles
of colonial
and foreign
practitioners.
Registration of
foreign degrees
held by regis-
tered medical
practitioners.
Power of Her
Majesty in
Council to
deﬁne colonies
and foreign
countries to
which this part
of the Act
applies.
Amendment of
21 85 22 Vict.
c. 90. s. 36., as
to medical
officers in
ships.
Act; each list shall be made out alphabetically according to the sur-
names; and the provisions of the Medical Act, 1858, relating to persons
registered under that Act, and relating to the medical register and to
offences in respect thereof, shall, so far as may be, apply in the case of
colonial and foreign practitioners registered under this Act and of the
said lists of those practitioners, in the same way as such provisions
apply in the case of persons registered under the said Medical Act, 1858,
and of the register as kept under that Act.
15, On and after the appointed day it shall be lawful for any
registered medical practitioner who being on the list of colonial or
of foreign practitioners is on that day in possession of or thereafter
obtains any recognised colonial or foreign medical diploma granted in a
British possession or foreign country to which this Act applies to cause
a description of such diploma to be added to his name in the medical
register.
16, On and after the appointed day it shall be lawful for any
registered medical practitioner who, being on the medical register by
virtue of English, Scotch, or Irish qualiﬁcations, is in possession of a
foreign degree in medicine, to cause a description of such foreign
medical degree to be added to his name as an additional title in the
medical register, provided he shall satisfy the General, Council that he
obtained such degree after proper examination and prior to the passing
of this Act.
17,—(1.) Her Majesty may from time to time by Order in Council
declare that this part of this Act shall be deemed 011 and after a day to
be named in such Order to apply to any British possession or foreign
country which in the opinion of Her Majesty affords to the registered
medical practitioners of the United Kingdom such privileges of practising
in the said British possession or foreign country as to Her Majesty may
seem just; and from and after the day named in such Order in Council
such British possession or foreign country shall be deemed to be a
British possession or foreign country to which this Act applies within
the meaning of this part thereof; but until such Order in Council has
joeen made in respect of any British possession or foreign country, this
part of this Act shall not be deemed to apply to any such possession or
country, and the expression “ the prescribed day” as used in this part
of this Act means, as respects any British possession or foreign country,
the (lay on and after which this part of this Act is declared by Order
in Council to apply to such British possession or foreign country.
(2.) Her Majesty may from time to time by Order in Council revoke
and renew any Order made in pursuance of this section; and on the
revocation of such Order as respects any British possession or foreign
country, such possession or foreign country shall cease to be a possession
or country to which this part of this Act applies, without prejudice
nevertheless to the right of any persons whose names have been already
entered on the register.
18, Nothing in the Medical Act, 1858, shall prevent a person
holding a medical diploma entitling him to practise medicine or sur-
gery in a British possession to which this Act applies from holding an
appointment as a medical officer in any vessel registered in that pos—
session.
Sec. 27 contained the usual deﬁnition of the expression “British
possession.”
1888.] , 49 a 50 VICT. 8. 35.-NEW CAN. MP8. 887
49 a 50 VICT. (1888) c. 85.
An Act respecting the Representation in the Parlia-
ment of Canada of Territories which for the time
being form part of the Dominion of Canada, but
are not included in any Province. [25th Jane 1886.]
HEREAS it is expedient to empower the Parliament of Canada
to provide for the representation in the Senate and House of
Commons of Canada, or either of them, of any territory which for the
time being forms part of the Dominion of Canada, but is not included in
any province:
Be it therefore enacted by the Queen’s Most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the authority
of the same, as follows’:—
1, The Parliament of Canada may from time to time make provision
. for the representation in the Senate and House of Commons of Canada,
‘or in either of them, of any territories which for the time being form
part of the Dominion of Canada, but are not included in any province
thereof.
2, Any Act passed by the Parliament of Canada before the passing of
this Act for the purpose mentioned in this Act shall, if not disallowed
by the Queen, be, and shall be deemed to have been, valid and effectual
from the date at which it received the assent, in Her Majesty’s name, of
the Governor-General of Canada.
It is hereby declared that any Act passed by the Parliament of
Canada, whether before or after. the passing of this Act, for the
purpose mentioned in this Act or in the British North America Act,
1871, has effect, notwithstanding anything in the British North
America Act, 1867, and the number of senators or the number of
members of the House of Commons speciﬁed in the last-mentioned
Act is increased by the number of senators or of members, as the
case may be, provided by any such Act of the Parliament of Canada for
the representation of any provinces or territories of Canada.
3, This Act may be cited as the British North America Act, 1886.
This Act and the British North America Act, 1867, and the
British North America Act, 1871, shall be construed together, and
may be cited together as the British North America Acts, 1867 to
1886. , t
50 a 5i vier. (1887) C. 13.
This Act contained provisions which might be held
to extend to all Colonial Governors. It was for the
purpose of extending the 28 '85 29 Vict. c. 113., and
35 81; 36 c. 29. (Colonial Governors Pensions Acts,
1865 and 1872), to the High Commissioner of Cyprus.
Provision by
Parliament of
Canada for
representation
of territories.
Effect of Acts
of Parliament
of Canada.
34 S? 35 Vict.
c. 28.
30 85 31 Vict.
c. 3.
Short title and
construction.
30 86 31 Vict.
c. 3.
34 85 35 Vict.
c. 28.
888 51 & 52 VICT. c. 65.——COL. ATTORNEYS. [1888.
51. a 52 VICT. (1888) c. 65.
An Act to provide for the custody of the Roll
of Solicitors.
By sec. 20 of this Act and the schedule to the Act,
the Colonial Attorneys Relief Act, 1857, 20 85 21 Vict.
c. 39. [male p. 719] was repealed as follows. Sec. 5 from
the words “ for the judges ” to “ solicitor also and,” and
from “and not as an attorney ” to the ﬁrst “ required ” ;
and from “an attorney or solicitor” to “attorney and
solicitor”; and from “and if by any such” to ﬁrst
“ after mentionec ”; and from the second “ to ad-
minister ” to “ taken and”; and the words “ and
they,” and “ or they,” and “ or them,” wherever they
occur, and the words “in the Court of Chancery ”
‘and “ of such court.”
51 VICT. (1888) c. 70.
Appellate Jurisdiction Act. See Appendix B.
For Merchant Shipping Acts, 51 Yict. c. 62.; 52 & 53
‘Vict. c. 46. (tonnag'ﬁ), and (3- 68» K101331863 and G‘ 73"
use of ﬂags in British Merchant service, see 57 & 58
Vict. c. 60. post.
53 85 541 VICT. (1890) c. 27.
[This Act repealed the previous Vice-Admiralty
Courts Acts. See Sch. 2., and as to Prize Courts,
see 57 & 58 Vict. 0. 39120825.]
An Act to amend the Law respecting the exercise
of Admiralty Jurisdiction in Her Majesty’s
Dominions and elsewhere out of the United
Kingdom. [25th July 1890.]
E it enacted by the Queen’s most Excellent Majesty,
by and with the advice and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows :
1890.] 52 a 54 vIc'r. c. 27.-coun'rs 'oF ADM. 889
1. This Act may be cited as the Colonial Courts of Shorttiﬂe-
Admiralty Act, 1890.
2.-——(1.) Every court of law in a British possession, which is for the time being declared in pursuance of Admiralty.
this Act to be a court of Admiralty, or which, if no such
declaration is in force in the possession, has therein
original unlimited civil jurisdiction, shall be a court of '
Admiralty, with the jurisdiction in this Act mentioned, --
and may for the purpose of that jurisdiction exercise all
the powers which it possesses for the purpose of its other
civil jurisdiction, and such court in reference to the
jurisdiction conferred by this Act is in this Act referred
to as a Colonial Court of Admiralty. Where in a British
possession the Governor is the sole judicial authority,
the expression “ court of law ” for the purposes of this
section includes such Governor.
(2.) The jurisdiction of a Colonial Court of Admiralty
shall, subject to the provisions of this Act, be over the
like places, persons, matters, and things, as the Admiralty
jurisdiction of the High Court in England, whether
existing by virtue of any statute or otherwise, and the
Colonial Court of Admiralty may exercise such juris-
diction in like manner and to as full an extent as the
High Court in England, and shall have the same regard
as that Court to international law and the comity of
nations.
Subject to the provisions of this Act any enact-
ment referring to a Vice-Admiralty Court, which is
contained in an Act of the Imperial Parliament or in a
Colonial law, shall apply to a Colonial Court of Admiralty,
and be read eeee as if the expression “Colonial Court of
Admiralty” were therein substituted for “ Vice-Admi-
ralty Court” or for other expressions respectively
referring to such Vice-Admiralty Courts or the judge
thereof, and the Colonial Court of Admiralty shall have
jurisdiction accordingly.
Provided as follows :
(a.) Any enactment in an Act of the Imperial Par-
liament referring to the Admiralty jurisdiction
890
53 & 54 VICT. c. 27.—JUB. ADM. CT. [1890.
27 d? 28 Vict.
e. 25.
36 & 37 Vict.
c. 88.
Power of
colonial
- legislature as
to Admiralty
jurisdiction.
of the High Court in England, when applied
to a Colonial Court of Admiralty in a British
possession, shall be read as if the name of that
possession were therein substituted for England
and Wales ; and
((1.) A Colonial Court of Admiralty shall have under
the Naval Prize Act,-1864l, and under the Slave
Trade Act, 1873, and any enactment relating
to prize or the slave trade, the jurisdiction
thereby conferred on a Vice-Admiralty Court
and not the jurisdiction thereby conferred
exclusively on the High Court of Admiralty
or the High Court of Justice; but, unless for
the time being duly authorised, shall not by
virtue of this Act exercise any jurisdiction
under the Naval Prize Act, 1864, or otherwise
' in relation to prize ; and
(0.) A Colonial Court of Admiralty shall not have
jurisdiction under this Act to try or punish a
person for an offence which according to the
law of England is punishable on indictment;
and
A Colonial Court of Admiralty shall not have
any greater jurisdiction in relation to the laws
and regulations relating to Her Majesty’s
Navy at sea, or under any Act providing for
the discipline of Her Majesty’s Navy, than
may be from time to time conferred on such
court by Order in Council.
(41.) Where a Court in a British possession exercises
in respect of matters arising outside the body of a county
or other like part of a British possession any jurisdiction
exerciseable under this Act, that jurisdiction shall be
deemed to be exercised under this Act and not otherwise.
3. The legislature of a British possession may by any
Colonial law -
(a) declare any court of unlimited civil jurisdiction,
' whether original or appellate, in that posses-
1890.] 53 & 54 VICT. c. 27.—QUEEN’S SANCTION.
891
sion to be a Colonial Court of Admiralty, and
provide for the exercise by such court of its
jurisdiction under this Act, and limit terri-
torially, or otherwise, the extent of such juris-
diction; and
(b) confer upon any inferior or subordinate court
in that possession such partial or limited
Admiralty jurisdiction under such regulations
and With such appeal (if any) as may seem ﬁt :
Provided that any such Colonial laW shall not confer
any jurisdiction Which is not. by this Act conferred upon
a Colonial Court of Admiralty.
4, Every Colonial law Which is made in pursuance of
this Act, or affects the jurisdiction of or practice or pro-
cedure in any court of such possession in respect of the
jurisdiction conferred by this Act, or alters any such
Colonial law as above in this section mentioned, which
has been previously passed, shall, unless previously
approved by Her Majesty through a Secretary of State,
either be reserved for the signiﬁcation of Her Majesty’s
pleasure thereon, or contain a suspending clause pro-
viding that such law shall not come into operation until
Her Majesty’s pleasure‘ thereon has been publicly signi-
ﬁed in the British possession in which it has been passed.
5, Subject to rules of court under this Act, judgments
of a court in a British possession given or made in the
exercise of the jurisdiction conferred on it by this Act,
shall be subject to the like local appeal, if any, as judg-
ments of the court in the exercise of its ordinary civil
jurisdiction, and the court having cognizance of such
appeal shall for the purpose thereof possess all the ju-
risdiction by this Act conferred upon a Colonial Court
of Admiralty.
6,——(1.) The appeal from a judgment of any court
in a British possession in the exercise of the jurisdiction
conferred by this Act, either Where there is as of right
no local appeal or after a decision on local appeal, lies
to Her Majesty the Queen in Council.
Reservation of
Colonial law
for H er
Majesty '8
assent.
Local Admi-
ralty appeal.
Admiralty
appeal to the
Queen in
Council.
892 .53 a 54 VICT. c. 27.-APP. FROM ADM. 018. [1890.
(2.) Save as may be otherwise specially allowed in a
particular case by Her Majesty the Queen in Council,
an appeal under this section shall not be allowed——
(a) from any judgment not having the effect of a
deﬁnitive judgment unless the court appealed
from has given leave for such appeal, nor
([1) from any judgment unless the petition of appeal
has been lodged within the time prescribed by
rules, or if no time is prescribed within six
months from the date of the judgment ap-
pealed against, or if leave to appeal has been
given then from the date of such leave.
( For the purpose of appeals under this Act, Her
Majesty the Queen in Council and the Judicial Com-
mittee of the Privy Council shall, subject to rules under
this section, have all such powers for making and en-
forcing judgments, whether interlocutory or ﬁnal, for
punishing contempts,for requiring the payment of money
into court, or for any other purpose, as may be necessary,
or as were possessed by the High Court of Delegates
before the passing of the Act transferring the powers of
such court to Her Majesty in Council, or as are for the
time being possessed by the High Court in Englcmcl or
by the court appealed from in relation to the like matters
as those forming the subject of appeals under this Act.
All Orders of the Queen in Council or the J udi-
cial Committee of the Privy Council for the purposes
aforesaid or otherwise in relation to appeals under this
Act shall have full effect throughout Her Majesty’s
dominions, and in all places Where Her Majesty has
jurisdiction.
This section shall be in addition to and not in
derogation of the authority of Her Majesty in Council
or the Judicial Committee of the Privy Council arising
otherwise than under this Act, and all enactments re-
lating to appeals to Her Majesty in Council or to the
powers of Her Majesty in Council or the Judicial Com-
mittee of the Privy Council in relation to those appeals,
1890.] 53 a 54 VlCT. c. 27.-RULES or ADM. ers. 893
whether for making rules and orders or otherwise, shall
extend, save as otherwise directed by Her Majesty in
Council, to appeals to Her Majesty in Council under
this Act.
'7.-—(1.) Rules of court for regulating the procedure
and practice (including fees and costs) in a court in a
British possession in the exercise of the jurisdiction con-
ferred by this Act, whether original or appellate, may
be made by the same authority and in the same manner
as rules touching the practice, procedure, fees, and costs
in the said court in the exercise of its ordinary civil
jurisdiction respectively are made :
Provided that the rules under this section shall not,
save as provided by this Act, extend to matters relating
to the slave trade, and shall not (save as provided by
this section) come into operation until they have been
approved by Her Majesty in Council, but on coming
into operation shall have full effect as if enacted in this
Act, and any enactment inconsistent therewith shall, so
far as it is so inconsistent, be repealed.
(2.) It shall be lawful for Her Majesty in Council, in
approving rules made under this section, to declare that
the rules so made with respect to any matters which
appear to Her Majesty to be matters of detail or of local
concern may be revoked, varied, or added to without the
approval required by this section.
Such rules may provide for the exercise of any
jurisdiction conferred by this Act by the full court, or
by any judge or judges thereof, and subject to any
rules, where the ordinary civil jurisdiction of the court
can in any case be exercised by a single judge, and
jurisdiction conferred by this Act may in the like case
be exercised by a single judge.
8.—(l.) Subject to the provisions of this section
nothing in this Act shall alter the application of any
droits of Admiralty or droits of or forfeitures to the
Crown in a British possession; and such droits and for-
Rulcs of
court.
Droits of
Admiralty
and of the
Crown.
89411 53 a 54 nor. 0. 27.—VICE-ADM. 01s. [1890‘.
Power to
establish Vice-
Admiralty
Court.
feitures, when condemned by a court of a British pos-
session in the exercise of the jurisdiction conferred by
this Act, shall, save as is otherwise provided by any
other Act, be notiﬁed, accounted for, and dealt with in
such manner as the Treasury from time to time direct,
and the officers of every Colonial Court of Admiralty
and of every other court in a British possession exer-
cising Admiralty jurisdiction shall obey such directions
in respect of the said droits and forfeitures as may be
from time to time given by the Treasury.
(2.) It shall be lawful for Her Majesty the Queen in
Council by Order to directﬂthat, subject to any conditions,
exceptions, reservations, and regulations contained in
the Order, the said droits and forfeitures condemned by
a court in a British possession shall form part of the
revenues of that possession either for ever or for such
limited term or subject to such ‘revocation as may be
speciﬁed in the Order.
(3.) If and so long as any of such droits or forfeitures
by virtue of this or any other Act form part of the
revenues of the said possession the same shall, subject to
‘the provisions of any law for the time being applicable
thereto, be notiﬁed, accounted for, and dealt with in
manner directed by the Government of the possession,
and the Treasury shall not have any power in relation
thereto.
9,—(1.) It shall be lawful for Her Majesty, by com-
mission under the Great Seal, to empower the Admiralty
to establish in a British possession any Vice-Admiralty
Court or Courts.
(2.) Upon the establishment of a Vice-Admiralty
Court in a British possession, the Admiralty, by writing
under their hands and the seal of the ofﬁce of Admiralty,
in such form as the Admiralty direct, may appoint a
judge, registrar, marshal, and other officers of the court,
'. and may cancel any such appointment ; and in addition
to any other jurisdiction of such court, may (subject to
the limits imposed by this Act or the said commission
1890.] 53 a 54 vIc'r. c. 27.-RULES OF V.-ADM. ms. 895
from Her Majesty) vest in such court the Whole or any
part of the jurisdiction by or by virtue of this Act con-
ferred upon any courts of that British possession, and
may vary or revoke such vesting, and while such vesting
is in force the power of such last-mentioned courts to
exercise the jurisdiction so vested shall be suspended.
Provided that——
(a) nothing in this section shall authorise a Vice-Ad-
miralty Court so established in India or in
any British possession having a representative '
legislature, to exercise any jurisdiction, except
for some purpose relating to prize, to Her
Majesty’s Navy, to the slave trade, to the
matters dealt with by the Foreign Enlistment
Act, 1870, or the Paciﬁc Islanders Protection
Acts, 187 2 and 187 5, or to matters in which
questions arise relating to treaties or conven-
tions with foreign countries, or to international
law; and
(b) in the event of a vacancy in the ofﬁce of judge,
registrar, marshal, or other oﬁicer of any Vice-
Admiralty Court in a British possession, the
Governor of that possession may appoint a ﬁt
person to ﬁll the vacancy until an appointment
to the oﬁice is made by the Admiralty.
(3.) The provisions of this Act with respect to appeals
to Her Majesty in Council from courts in British pos-
sessions in the exercise, of the jurisdiction conferred by
this Act shall apply to appeals from Vice-Admiralty
Courts, but the rules and orders made in relation to
appeals from Vice-Admiralty Courts may diﬁer' from
the rules made in relation to appeals from the said
courts in British possessions.
(4.) If Her Majesty at any time by commission under
the Great Seal so directs, the Admiralty shall by Writing
under their hands and the seal of the ofﬁce of Admiralty
abolish a Vice-Admiralty Court established in any
British possession under this section, and upon such
abolition the jurisdiction of any Colonial Court of
33 8t 34 Vict.
c. 90.
35 & 36 Vict.
c. 19.
38 8: 39 Vict.
c. 51.
896 53 8t 54 VICT. c. 27.——WHO VICE-ADMIRAL.
[1890.
Power to
‘appoint a vice-
admiral.
Exception of
Channel
Islands and
other pos-
sessions. 1
Application of
Act to courts
under Foreign
Jurisdiction
Acts.
Rules for
procedure in
slave trade
matters.
36 & 37 Vict.
c. 59.
42 8t 43 Vict.
c. 38.
Admiralty in that possession which was previously
suspended shall be revived.
10, Nothing in this Act shall aﬁect any power of
appointing a vice-admiral in and for any British posses-
sion or any place therein; and whenever there is not a
formally appointed vice-admiral in a British possession
or any place therein, the Governor of the possession
shall be ex-oﬁlclo vice-admiral thereof.
11,-—(1.) The provisions of this Act with respect to
Colonial Courts of Admiralty shall not apply to the
Channel Islands.
(2.) It shall be lawful for the Queen in Council by
Order to declare, with respect to any British possession
which has not a representative legislature, that the
jurisdiction conferred by this Act on Colonial Courts of
Admiralty shall not be vested in any court of such
possession, or shall be vested only to the partial or
limited extent speciﬁed in the Order.
12, It shall be lawful for Her Majesty the Queen in
Council by Order to direct that this Act shall, subject
to the conditions, exceptions, and qualiﬁcations (if any)
contained in the Order, apply to any Court established
by Her Majesty for the exercise of jurisdiction in any
place out of Her Majesty’s dominions which is named
in the Order as if that Court were a Colonial Court of
Admiralty, and to provide for carrying into effect such
application.
13.—(1.) It shall be lawful for Her Majesty the
Queen in Council by Order to make rules as to the
practice and procedure (including fees and costs) to be
observed in and the returns to be made from Colonial
Courts of Admiralty and Vice'Admiralty Courts in the
exercise of their jurisdiction in matters relating to the
slave trade, and in and from East African Courts as
deﬁned by the Slave Trade (East African Courts) Acts,
1873 and 1879.
1890.] . 59 a 54. VIGT. c. 27.--SLAVE TRADE. 897
(2.) Except when inconsistent with such Order in
Council, the rules of court for the time being in force in
a Colonial Court of Admiralty or Vice-Admiralty Court
shall, so far as applicable, extend to proceedings in such
court in matters relating to the slave trade.
(3.) The provisions of this Act with respect to appeals
to Her Majesty in Council, from courts in British
possessions in the exercise of the jurisdiction conferred
by this Act, shall apply, with the necessary modiﬁcations
to appeals from judgments of any East African Court
made or purporting to be made in exercise of the juris-
diction under the Slave Trade (East African Courts)
Acts, 1873 and 1879.
14, It shall be lawful for Her Majesty in Council
from time to time to make Orders for the purposes
authorised by this Act, and to revoke and vary such
Orders, and every such Order while in operation shall
have effect as if it were part of this Act. [See for old
rules in re Admiralty appeals, &c., O. in C. 11 Dec.
1865; Weehlg Notes, 27 Jan. 1866, p. 41.]
15, In the construction of this Act, unless the context
otherwise requires,—
The expression “ representative legislature ” means,
in relation to a British possession, a legislature
comprising a legislative body of which at least one
half are elected by inhabitants of the British pos-
session.
The expression “ unlimited civil jurisdiction” means
civil jurisdiction unlimited as to the value of the
subject-matter at issue, or as to the amount that
may be claimed or recovered.
The expression “ judgment” includes a decree, order,
and sentence.
The expression “ appeal ” means any appeal, rehearing,-
or review; and the expression “local appeal” means
an appeal to any court inferior to Her Majesty in
Council.
8 2340. 3 L
Orders in
Council.
Interpretation.
898 53 a 54 vIcT. c. 27.—IN FORGE FROM. [1890-
The expression “ Colonial law ” means any Act, ordi-
nance, or other law having the force of legislative
enactment in a British possession and made by any
authority, other than the Imperial Parliament or
Her Majesty in Council, competent to make laws for
such possession.
g‘gftngtfnfc‘t 16,—(1.‘; This Act shall, save as otherwise in this
Act provided, come into force in’ every British possession
on the ﬁrst day of July one thousand eight hundred and
ninety-one. -
Provided that—
(a.) This Act shall not come into force in any of the
British possessions named in the First Schedule
to this Act until Her Majesty so directs by
Order in Council, and until the day named in
that behalf in such Order; and
(b ) If before any day above mentioned rules of court
for the Colonial Court of Admiralty in any
British possession have been approved by Her
Majesty in Council, this Act may be pro-
claimed in that possession by the Governor
thereof, and on such proclamation shall come
into force on the day named in the procla-
mation.
(2.) The day upon which this Act comes into force in
any British possession shall, as regards that British pos-
session, be deemed to be the commencement of this Act.
If, on the commencement of this Act in any
British possession, rules of court have not been approved
by Her Majesty in pursuance of this Act, the rules in
force at such commencement under the Vice-Admiralty
362g 27 Vict- Courts Act, 1868, and in India the rules in force at
' i such commencement regulating the respective Vice-
Admiralty Courts or Courts of Admiralty in India,
including any rules made with reference to proceedings
instituted on behalf of Her Majesty’s ships, shall, so far
as applicable, have eﬁect in the Colonial Court or Courts
of Admiralty of such possession, and in any Vice-
1890.] 53 a 54 vIcT. c. 27-.-coL. cT. FEES. 899
Admiralty Court established under this Act in that
possession, as rules of court under this Act, and may be
revoked and varied accordingly; and all fees payable
under such rules may be taken in such manner as the
Colonial Court may direct, so however that the amount
of each such fee shall so nearly as practicable be paid to
the same officer or person who but for the passing of
this Act would have been entitled to receive the same in
respect of like business. So far as any such rules are
inapplicable or do not extend, the rules of court for the
exercise by a court of its ordinary civil jurisdiction shall
have eﬁect as rules for the exercise by the same court
of the jurisdiction conferred by this Act.
(41.) At any time after the passing of this Act any
Colonial law may be passed, and any Vice-Admiralty
Court may be established and jurisdiction vested in such
Court, but any such law, establishment, or vesting shall
not come into eﬁect until the commencement of this Act.
17. On the commencement of this Act in any British
possession, but subject to the provisions of this Act,
every Vice-Admiralty Court in that possession shall be
abolished; subject as follows,—
(1.) All judgments of such Vice-Admiralty Court
shall be executed and may be appealed from in
like manner as if this Act had not passed, and
all appeals from any Vice-Admiralty Court
pending at the commencement of this Act
shall be heard and determined, and the judg-
ment thereon executed as nearly as may
be in like manner as if this Act had not
passed: *
(2.) All proceedings pending in the Vice-Admiralty
Court in any British possession at the com-
mencement of this Act shall, notwithstanding
the repeal of any enactment by this Act, be
continued in a Colonial Court of Admiralty
of the possession in manner directed by rules
of court, and, so far as no such rule extends,
Abolition of
Vice-Admiralty
Courts.
3 L 2
900 53 a 54 vIoT. c. 27.--GOMPENSATION. [1890.
Repeal.
in like manner, as nearly as may be, as if they
had been originally begun in such court :
(3.) Where any person holding an ofﬁce, whether that
of judge, registrar, or marshal, or any other
oﬁice in any such Vice-Admiralty Court in a
British possession, suﬁers any pecuniary loss
in consequence of the abolition of such court,
the Government of the British possession, on
complaint of such person, shall provide that
such person shall receive reasonable compensa-
tion (by way of an increase of salary or a
capital sum, or otherwise) in respect of his less,
subject nevertheless to the performance, if
required by the said Government, of the like
duties as before such abolition :
(4.) All books, papers, documents, ofﬁce furniture,
and other thin gs at the commencement of this
Act belonging, or appertaining to any Vice-
Admiralty Court, shall be delivered over to the
proper ofﬁcer of the Colonial Court of Ad-
miralty or be otherwise dealt with in such
manner as, subject to any directions from Her
Majesty, the Governor may direct :
(5.) Where, at the commencement of this Act in a
British possession, any person holds a commis-
sion to act as advocate in any Vice-Admiralty
Court abolished by this Act, either for Her
Majesty or for the Admiralty, such commission
shall be of the same avail in every court of
the same British possession exercising jurisdic-
tion under this Act, as if such court were the
court mentioned or referred to in such com-
mission.
18, The Acts speciﬁed in the Second Schedule to this
Act shall, to the extent mentioned in the third column
of that schedule, be repealed as respects any British
possession as from the commencement of this Act in
that possession, and as respects any . courts out of Her
1890.] 53 a 54 vIoT. c. 27.—:-REPEALS. 901
Majesty’s dominions as from the date of any Order
applying this Act: _ I "
Provided that-
(a.) Any appeal against a judgment made, before
the commencement of this Act may be brought
and any such appeal and any proceedings or
appeals pending at the commencement of this
Act may be carried on and completed and
carried into effect as if such ~repeal had not
been enacted; and
(b.) All enactments and rules at the passing of this
Act in force touching the practice, procedure,
fees, costs, and returns in matters relating to
the slave trade in Vice-Admiralty courts and
in East African courts shall have effect as
rules made in pursuance of this Act, and shall
apply to Colonial Courts of Admiralty, and
may be altered and revoked accordingly.
SCHEDULES.
FIRST SCHEDULE.
BRITISH PossEssIoNs IN WHICH OPERATION OF Ao'r IS DELAYED. Section 16.
New South Wales.
Victoria.
St. Helena.
British Honduras.
SECOND SCHEDULE. Section 18.
,ENACTMEN'I‘S REPEALnD.

Session and Chapter.

Title of Act. Extent of Repeal. _

56 Geo. 3. c. 82. - An Act to render valid The whole Act.
i the judicial Acts of
1 Surrogates of Vi ce-Ad-
! miralty Courts abroad,
' during vacancies in
, office of Judges of such
courts.
902
[1890.
~53 a 54 VICT. c. 27.-ACTS BEPEALED.
Second Schedule —Enactments Repealed—cont.

l
Session and Chapter.
Title of Act.
I
Extent of Report.

2 853 Will. 4. c. 51.
3 & 4..Will.4. c. 41.
6 & 7 Vict. c. 38. -~
.71&18TVsr¢¢<691:-
An Act to regulate the
practice and the fees
in the Vice-Admiralty
Courts abroad, and to
obviate doubts as to
their jurisdiction.
An Act for the better ad-
ministration of justice
in His Majesty’s Privy
Council.
An Act to make further
regulations for facili-
tating the hearing ap-
peals and other matters

5 Council.
An Act for amending an
' “Act passediin the fourth
year of the reign of His
late Majesty, intituled,
“ An Act for the bet-
“ ter administration of
“ justice in His Ma-
‘f jesty’s Privy Coun-
cil,” and to extend its


by the Judicial Com- 1
mittee of the Privy’

jurisdiction and powers]
The whole Act.
Section two.
In section two, the Words
“ or from any Admir-
“ alty or Vice-Admir-
“ alty Court,” and the
words “or the Lords
“ Commissioners of
“ Appeals in prize
“ causes or their sur-
“ rogates.”
section three, the
words “ and the High
“ Court of Admiralty
“ of England,”and the
words “ and from any
“ Admiralty or Vice—
“ Admiralty Court.”
In section ﬁve, from the
ﬁrst “ the High Court
“ of Admiralty,” to the
end of the section.
section seven, the
words “and from Ad-
“ miralty or Vice-Ad-
“ miralty Courts.”
Sections nine and ten,
so far as relates to
maritime causes.
In section twelve, the
words “or maritime.”
In section ﬁfteen, the
words “ and Admiralty
and Vice-Admiralty.”
In section twelve, the
words “ and‘from'Ad-
“ miralty and Vice-
“ Admiralty Courts,”
and so much of the
rest of the section as
relates to maritime
causes.
In
In
55 vIcT. c. 6.--GOL. PROBATES. 903
Second Schedule—Enactments Repealed—cont.
»- i‘&_‘_ ,

Session and Chapter. Title of Act. Extent of Report.


I
26 Vict. c. 24. - The Vice - Admiralty
Courts Act, 1863.
The Vice - Admiralty
; Courts Act Amend-
! ment Act, 1867 .
36 85 37 Vict. c. 59. l The Slave Trade (East
i African Courts) Act,
The whole Act.
30 8t 31 Vict. c. 45. The whole Act.
Sections four and ﬁve.
. 1873.
36 & 37 Vict. c. 88. I The Slave Trade Act, Section twenty as far as
l 187 3. relates to the taxation
of any costs, charges,
and expenses which
| can be taxed in pur-
‘ suance of this Act.
In section twenty-three,
the words “ under
j “ the Vice-Admiralty
“ Courts Act, 1863.”
So much of section six
as authorises Her Ma-
jesty to confer Admi-
ralty jurisdiction on
any court.
38 85 39 Vict. c. 51. ,' The Paciﬁc Islanders
Protection Act, 1875.

i
‘

55 vIcT. (1892) c. 6.
An Act to provide for the Recognition in the
United Kingdom of Probates and Letters of
Administration granted in British Possessions.
[20th May 1892.]
E it enacted by the Queen’s most Excellent Majesty,
by and with the advice-and consent of the Lords
Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same,
as follows : A
1. Her Majesty the Queen may, on being satisﬁed
that the legislature of any British possession has made
adequate provision for the recognition in that possession
of probates and letters of administration granted by the
Application
of Act by
Order in
Council.
‘"904
55 VICT. c. 6.—RECOG: OF PBOBATES. [1892.
Sealing in
United
Kingdom of
colonial pro-
hates and
letters of
administra—
tion.
courts of the United Kingdom, direct by Order in
Council that this Act shall, subject to any exceptions
and modiﬁcations speciﬁed in the Order, apply to that
possession, and thereupon, while the Order is in force,
this Act shall apply accordingly.
2,—(1.) Where a court of probate in a British pos-
session to which this Act applies has granted probate or
letters of administration in respect of the estate of a
deceased person, the probate or letters so granted may
on being produced to, and a copy thereof deposited with
a court of probate in the United Kingdom, be sealed
with the seal of that court, and, thereupon, shall be of
the like force and effect, and have the same operation in
the United Kingdom, as if granted by that court.
(2.) Provided that the court shall, before sealing a
probate or letters of administration under this section,
be satisﬁed— .
(an) that probate duty has been paid in respect of so
much (if any) of the estate as is liable to
probate duty in the United Kingdom ; and
(b.) in the case of letters of administration, that
security has been given in a sum sufficient in
amount to cover the property (if any) in the
United Kingdom to which the letters of ad-
ministration relate;
and may require such evidence, if any, as it thinks ﬁt
as to the domicile of the deceased person.
_ (3.) The court may also, if it thinks ﬁt, on the appli-
cation of any creditor, require, before sealing, that
adequate security be given for the payment of debts due
from the estate to creditors residing in the United
Kingdom.
(4.) For the purposes of this section, a duplicate of
any probate or letters of administration sealed with the
seal of the court granting the same, or a copy thereof
certiﬁed as correct by or under the authority of the
court granting the same, shall have the same effect as
the original. ' ’ ' ‘
1892.] 55 VlOT. c. 6.—-PROBATES 1N U. K. 905
(5.) Rules of court may be made for regulating the
procedure and practice, including fees and costs, in
courts of the United Kingdom, on and incidental to an
application for sealing a probate or letters of adminis-
tration granted in a British possession to which this Act
applies. Such rules shall, so far as they relate to
probate duty, be made with the consent of the Treasury,
and subject to any exceptions and modiﬁcations made
by such rules, the enactments for the time being in
force in relation to probate duty (including the penal
provisions thereof) shall apply as if the person
who applies for sealing under this section were a
person applying for probate or letters of adminis-
tration.
3. This Act shall extend to authorise the scaling in
the United Kingdom of any probate or letters of admin-
istration granted by a British court in a foreign country,
in like manner as it authorizes the sealing of a probate
or letters of administration granted in a British possession
to which this Act applies, and the provisions of this
Act shall apply accordingly with the necessary modiﬁ-
cations.
4,——(1.) Every Order in Council made under this
Act shall be laid before both Houses of Parliament as
soon as may be after it is made, and shall be published
under the authority of Her Majesty’s Stationery Oﬁice.
(2.) Her Majesty the Queen in Council may revoke
or alter any Order in Council previously made under
this Act.
Application
of Act to
British
courts in
foreign
countries.
Orders in
Council.
(3.) Where it appears to Her Majesty in Council that
the legislature of part of a British possession has power
to make the provision requisite for bringing this Act
into operation in that part, it shall be lawful for Her
Majesty to direct by Order in Council that this Act shall
apply to that part as if it were a separate British pos-
session, and thereupon, while the Order is in force, this
Act shall apply accordingly. - ~
906 55 a 56 W01‘. 5. 52.-—B. o. LOAN. [1892.
Application
of Act to
probates, &c.
already
granted.
Deﬁnitions.
Short title.
5. This Act when applied by an Order in Council to
a British possession shall, subject to the provisions of
the Order, apply to probates and letters of administration
granted in that possession either before or after the
passing of this Act.
6, In this Act——
The expression “ court of probate ” means any court ,
or authority, by whatever name designated, having
jurisdiction in matters of probate, and in Scotland
means the sheriff court of the county of Edinburgh :
The expressions “ probate” and “letters of adminis-
tration ” include conﬁrmation. in Scotland, and any
instrument having in a British possession the same
eﬁect which under English law is given to probate
and letters of administration respectively :
The expression “ probate duty” includes any duty
payable on the value of the estate and eﬁects for
which probate or letters of administration is or are
granted :
The expression “ British court in a foreign country”
means any British court having jurisdiction out of
the Queen’s dominions in pursuance of an Order in
Council, whether made under any Act or otherwise.
'7. This Act may be cited as the Colonial Probates
Act, 1892.
55 a 56 VICT. (1892) c. 52.
An Act to authorise an Advance to the Government of
the Province of British Columbia. [27th Jane 1892.]
HEREAS an arrangement has been made with the Government
of the Province of British Columbia for the transfer to and
settlement upon the sea coast and islands of that province of a number
of families from the parishes in Scotland to which the Crofters’ Holdings
(Scotland) Act, 1886, by virtue of a determination under section nine-
teen of that Act applies (in this Act referred to as “ crofter parishes ”),
and with a view to carrying into effect the arrangement, it is expedient to
authorise a temporary advance out of the Consolidated Fund of the
United Kingdom to the said Government :
1892.] 55 a 56 vrc'r. c. 52.-cnor'rnns’ LOAN. 907
And whereas by an Act of the Legislative Assembly of the said Pro-
vince the Lieutenant-Governor in Council is authorised to accept the said
Loan, and to pledge the credit of the Province for the repayment thereof :
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the autho-
rity of the same, as follows:
1, This Act may be cited as the British Columbia (Loan) Act, 1892.
2,-—(1.) In order to assist the Government of the Province of British
Columbia to transfer to and settle upon the sea coast and islands of that
Province families from the crofter parishes of Scotland, the Treasury
may, before the ﬁrst day of January one thousand eight hundred and
ninety-eight advance to the said Government, on the security herein-after
mentioned, any sum or sums not exceeding in the whole one hundred and
ﬁfty thousand pounds, which shall be applied by the said Government for
the purpose of effecting the said transfer and settlement on proper con-
ditions.
(2.) The said Government shall repay every sum advanced by equal
half-yearly instalments within thirty years from the date of its advance,
and the ﬁrst of such instalments shall be paid within ﬁve years from the
date of the advance.
(3.) The said Government shall pay interest half-yearly at the rate
of three per cent. per annum on the amounts advanced for the time
being and not repaid.
(4.) The Treasury may agree to add to an advance all or any part of
the interest accruing thereon in each of the ﬁrst ﬁve years, and the interest
so added in each year shall be deemed thereafter to form part of the
advance, but to be in addition to the maximum advance authorised by
this Act.
3,—(1.) The said loan shall be advanced in instalments of not more
than ﬁfty thousand pounds each.
(2.) Before advancing the ﬁrst instalment the Treasury shall be satis-
ﬁed, by such evidence as they require, that suitable arrangements are
made for the said purpose.
(3.) Before advancing any instalments after the ﬁrst the Treasury
shall be satisﬁed by such evidence as they require that the prior instal-
ment or instalments have been duly expended for the said purpose, and
that suitable arrangements have been made or are continued for the said
purpose. .
(4.) An advance in pursuance of this Act shall not be made until the
Government of the Province of British Columbia has deposited in such
manner as the Treasury require such number of the debentures herein-
after mentioned as in nominal amount are equal to the amount of the
advance, inclusive of any interest which is likely to be added to the
advance. .
(5.) The debentures shall be debentures of the said Government issued
in pursuance of Act number sixty-one of 1892 passed by the Legislative
Assembly of the. said Province, or ,of an Act to be hereafter passed by
the said Legislative Assembly, and shall bear interest at the rate of three
per cent. per annum, and have coupons attached for such' interest for‘not
less than thirty years: Provided that the Treasury shall notdispose of
any such debenture or coupon otherwise than by returning the same to
the said Government until default is made in payment of any principal
or interest for the time being. due from that Government in respect of
the advance. - '
Short title.
Advance of
150,000l. by
Treasury to
Government
of British
Columbia.
Conditions of
advance.
908 55 a 56 vIcT. c. 35.--ooL. s'rooK. [1892.
Law of the
Province not
to impair ,
validity of
charge.
Issue and
raising of
advances and
application of
sums repaid.
Extension of
29 86 30 Vict.
c. 25. to bonds.
Count of
advances.
(6.) If it appears to the Treasury that the purposes of this Act have
been abandoned before the whole of an advance or any part thereof
has been expended, they may require the Government of the Province
to repay the amount not so expended, and that Government shall repay
the same. '
4:, Every Act hereafter passed by the Legislature of the Province of
British Columbia. which in any way impairs the validity or priority of the
charge upon the revenues of the Province of the principal or interest of
any advance made or debenture deposited in pursuance of this Act shall,
so far as it impairs such validity or priority, be void unless the previous
consent of the Treasury has been obtained. '
5,——(1.) Every advance under this Act shall be charged on and issued
out of the Consolidated Fund of the United Kingdom or the growing
produce thereof. _
(2.) For the purpose of borrowing the amount of the advance, or
money to repay to the Consolidated Fund the advance, or of paying off
any money borrowed or security issued under this section, the Treasury
may, if they think ﬁt, issue exchequer bonds, or exchequer bills, or
treasury bills, or otherwise borrow on the credit of the charge created
by this Act on the Consolidated Fund, or do all of such things, and the
sum arising from such issue or borrowing shall be paid into the Ex-
chequer.
(3.) The principal and interest of all securities issued or sums bor-
rowed under this section shall be charged upon and issued out of the
Consolidated Fund of the United Kingdom or out of the growing produce
thereof.
(4.) Every exchequer bond issued in pursuance of this Act shall be
for a sum of not less than one hundred pounds, and shall provide for
the paying off of such bond at par at any period not exceeding ﬁve years
nor less than twelve months from the date of such bond.
(5.) All sums paid by the Government of the Province in respect of
the principal of or interest on any advance under this Act, and all sums
arising from the disposal of any debentures deposited in pursuance of
this Act or of the coupons thereof shall be paid into the Exchequer.
6, Section ﬁfteen of the Exchequer Bills and Bonds Act, 1866 (which
section relates to the forgery of exchequer bills) shall apply to all
exchequer bonds issued in pursuance of this Act in like manner as if it
were herein enacted with the substitution of exchequer bond for ex-
chequer bill.
'7, An account of all sums issued out of the Consolidated Fund in
pursuance of this Act, and of all sums paid by the Government of the
Province of British Columbia in respect of the interest or principal of
any advance in pursuance of this Act, shall be annually laid before
Parliament in such form as the Treasury direct, so long as any such
advance remains outstanding.
55 a 56 vIoT. (1892) c. 35.
An Act to amend the Colonial Stock Act, 1877, so far
as regards the mode of transfer of Stock to which
that Act applies. [27 th June 1892.]
BE it enacted by the Queen’s most Excellent Majesty, by and with
. the advice and consent of the Lords Spiritual and Temporal, and
1892.] 55 a 56 VIeT. c. 35.—STOCK TRANSFERRED. 909
Commons, in this present Parliament assembled, and by the authority of
the same, as follows:
1, This Act may be cited as the Colonial Stock Act, 1892, and this Short title._
Act and the Colonial Stock Act, 1877, may be cited together as the 40,85 41 Vlc’ﬁ-
Colonial Stock Acts, 1877 and 1892. C- 09-
2.—-(l.) Any stock issued after the passing of this Act to which the Amendment of
Colonial Stock Act, 1877, applies may, if so provided by regulations 40 86 41 Vict-
under section sixteen of that Act (which regulations the registrar is ‘159?: I
hereby authorised to make), be transferred by deed according to the form Zisgifngfgloég
in the schedule to this Act, or to the like effect, and such deed, when stock
duly executed by all parties, shall be delivered to the registrar and kept
by him, and a memorial thereof shall be entered in the register.
(2.) On demand of the holder of any stock transferable by deed the
registrar shall cause a certiﬁcate of the proprietorship thereof to be
delivered to each holder, and such certiﬁcate shall be prima, facie evi-
dence of the title of the holder to the stock therein speciﬁed ; neverthe-
less the want of such certiﬁcate shall not prevent the holder of any
stock from disposing thereof.
(3.) Where stock of a colony has been issued before the passing of
this Act, and the regulations for the transfer of such stock provide for
its transfer in like manner as is authorised by this Act, the Government
of the colony, if desirous that the Colonial Stock Act, 1877, as amended
by this Act, should apply to the said stock, may, by declaration made,
deposited, and recorded in like manner as a declaration adopting that Act,
declare such desire, and identify the stock with reference to which the
declaration is made and thereupon this ‘Act shall apply as if it had been
enacted before the issue of the stock and the said regulations had
been‘ made in pursuance of section sixteen of the Colonial Stock Act,
1877.
(4.) Section nineteen of the Colonial Stock Act, 1877, shall not apply
to any stock in respect to which the provisions of that section have not
been observed before the passing of that Act.
(5.) A declaration under this Act may be made whether there has or
has not been a prior declaration applying to the stock the Colonial Stock
Act, 1877 . '
3, This Act shall apply to the Isle of Alan in like manner as if section Application of
six of the Isle of Man Loans Act, 1880, referred to the Colonial Stock Act to 1516 of
Act, 187 7, as amended by this Act, and that section shall be deemed to gag‘ 44 Vic,
have authorised the Government of the Isle of lllan to provide for the c. 8. '
transfer of stock in manner provided by this Act.
SCHEDULE.
Srocx
[Here identify stock]
I, or we, Seller.
of
in consideration of the sum of £
paid by
being the consideration money for
pounds stock Money-
do hereby transfer the said stock [together with the interest accrued
thereon since the last half-yearly payment of such interest] to the said
transferee.
And the said transferee hereby accepts the transfer of the same Buyer.
subject to the conditions on which the transferor held the same.
910 i 57 VICT. c. 2Q—BEHRING ACT. [1894;
Witness our hands and seals this day of one thousand
eight hundred and ninety
Signed, sealed, and delivered by the above-named

in the presence of
Signature of }
witness -

Address
Occupation ,,
Signed, sealed, and delivered by the above-named

in the presence of
Signature of }
witness -
Address
Occupation_ a.

57 VICT. (1894!) c. 2.
Behring Sea Award Act.
An Act to provide for carrying into effect the
Award of the Tribunal of Arbitration con-
stituted under a Treaty between Her
Majesty the Queen and the United States
of America. [23rd April 1894.]
HEREAS by a treaty between Her Majesty the
Queen and the Government of the United
States of America various questions which had arisen
respecting the taking and preservation of the fur seal in
the North Paciﬁc were referred to Arbitrators as men-
tioned in the treaty :
And whereas the award of such arbitrators (in this
Act referred to as the Behring Sea Arbitration Award)
dated the ﬁfteenth day of August one thousand eight
hundred and ninety-three, contained the provisions set
out in the First Schedule to this Act; and it is ex-
pedient to. provide .for carrying the same into eifect:
1894.] 57 vIc'r. c. 2.-AGT KEPT ALIVE. 91].
Be it therefore enacted, by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :
1.—(1.) The provisions of the Behring Sea Arbitra-
tion Award set out in the First Schedule to this Act
shall have eﬁect as if those provisions (in this Act re-
ferred to as the scheduled provisions) were enacted by this
Act, and the acts directed by Articles one and two there-
of to- be forbidden were expressly forbidden by this Act.
(2.) If there is any contravention of this Act, any
person committing, procuring, aiding, or abetting such
contravention shall be guilty of a misdemeanor within
the meaning of the Merchant Shipping Act, 1854 (1), and
the ship employed in such contravention and her equip-
ment, and everything on board thereof, shall be liable
to be forfeited to Her Majesty as if an oﬁence had been
committed under section one hundred and three (2) of the
said Act ; Provided that the court, without prejudice to
any other power, may release the ship, equipment, or
thing, on payment of a ﬁne not exceeding ﬁve hundred
pounds
(3.) The provisions of the Merchant Shipping Act,
1854, with respect to ofﬁcial logs(3) (including the penal
provisions) shall apply to every vessel engaged in fur
seal ﬁshing.
(4.) Every person who forges or fraudulently alters
any licence or other document issued for the purpose of
Article four or of Article seven in the First Schedule to
this Act, or who procures any such licence or document
to be forged or fraudulently altered, or who knowing
any such licence or document to be forged or fraudu-
lently altered uses the same, or who aids in forging or
fraudulently altering any such licence or document,
(1) So far as necessary the Act of 1854 is kept alive by s. 745 (f) of 57 82: 58 Vict.
c. 60.
(2) See sees. 69 to 71 ; 67 (2) 85 76 of 57 8c 58 Vict. c. 60.
(3) Ss. 280 85 284 of above cited Act, and see 239, 241 of 57 85 58 Vict. c. 60.
Enactment of
articles of
arbitrators’
award re-
specting the
fur seal.
17 86 18 Vict.
c. 104.
912
57 VICT. c. 2.—SEIZURE OF SHIP. [1894.
17 8t 18 Vict.
c. 104.
39 85 40 Vict.
c. 80.
Provision as to
ship’s papers.
Orders in
Council.
shall be guilty of a misdemeanor within the meaning of
the Merchant Shipping Act, 1854.
(5.) Subject to this Act, the provisions of sections
one hundred and three(1) and one hundred and four and
Part Ten-(2) of the Merchant Shipping Act, 18541, and of
section thirty-four(3) of the Merchant Shipping Act, 187 6,
which are set out in the Second Schedule to this Act,
shall apply as if they were herein re-enacted, and in
terms made applicable to an offence and forfeiture under
this Act; and any commissioned ofﬁcer on full pay in
the naval service of Her Majesty the Queen may seize
the ship’s certiﬁcate of registry.
2,—-(1.) Where an ofﬁcer seizes, under this Act, a
ship’s certiﬁcate of registry, he shall either retain the
certiﬁcate and give a provisional certiﬁcate in lieu
thereof, or return the certiﬁcate with an indorsement of
the grounds on which it was seized, and in either case
shall direct the ship, by an addition to the provisional
certiﬁcate or to the indorsement, to proceed forthwith to
a speciﬁed port, being a port where there is a British
court having authority to adjudicate in the matter, and
if this direction is not complied with, the owner and
master of the ship shall, without prejudice to any other
liability, each be liable to a ﬁne not exceeding one
hundred pounds.
(2,) Where in pursuance of this section a provisional
certiﬁcate is given to a ship, or the ship’s certiﬁcate is
indorsed, any officer of customs in Her Majesty’s
dominions or British consular oﬁicer may detain the
ship until satisfactory security is given for her appear-
ance in any legal proceedings which may be taken
against her in pursuance of this Act.
3,-(1) Her Majesty the Queen in Council may
make, revoke, ‘and alter orders for carrying into effect
the scheduled provisions, and this Act, and every such
(I) s. 76 of 578558 Vict.c.60.
(2) Part 13 ibicl.
(3) s. 692 {5221.
1894.] 57 vIeT. c. 2.—U.S. &- BRIT. SUBJECTS. 913
Order shall be forthwith laid before both Houses of
Parliament and published in the London Gazette, and
shall have effect as if enacted in this Act.
(2.) If there is any contravention of any regulation
made by any such Order, any person committing,
procuring, aiding, or abetting such contravention
shall be liable to a penalty not exceeding one hundred
pounds.
(3.) An Order in Council under this Act may provide,
that such ofﬁcers of the United States of America as
are speciﬁed in the Order may, in respect of offences
under this Act, exercise the like powers under this Act
as may be exercised by a commissioned officer of Her
Majesty in relation to a British ship, and the equipment
and certiﬁcate thereof, or such of those powers as appear
to Her Majesty in Council to be exerciseable under the
law of the United States of America against; hips of the
United States; and that such British officers as are
speciﬁed in the Order may exercise the powers conferred
by this Act, with any necessary modiﬁcations speci-
ﬁed in the Order, in relation to a ship of the United
States of America, and the equipment and certiﬁcate
thereof.
4,—(1.) Where any offence under this Act has been
committed by some person belonging to a ship, or by
means of a ship, or the equipment of a ship, the master
of the ship shall be deemed guilty of such oﬁence, and
the ship and her equipment shall be liable to forfeiture
under this Act ;
(2.) Provided that if it is proved that the master
issued-proper orders for the observance, and used due
diligence to enforce the observance of this Act, and the
regulations in force thereunder, and that the offence in
question was actually committed by some other person
without his connivance, and that the actual oifender has
been convicted, or that he has taken all proper means
in his power to prosecute such offender, if alive, to con-
viction, the master or the ship shall not be liable to any
s 2340. 3 M
Liability of
master to
punishment.
914: '57 VICT. c. 2.—DURATION or ACT. [1894.
Deﬁnitions.
Short title.
C eminence-
ment of Act.
Duration of
Act.
penalty or forfeiture other than such sum as will prevent
any proﬁt accruing by reason of the offence to the
master or crew or owner of the ship.
5. The expression “ equipment ” in this Act includes
any boat, tackle, ﬁshing or shooting instruments, and
other things belonging to a ship.
6, This Act may be cited as the Behring Sea Award
Act, 1894.
'7,-—(1.) This Act shall come into operation on the
ﬁrst day of May one thousand eight hundred and ninety-
four, provided that Her Majesty in Council, if at any
time it appears expedient so to do, having regard to the
circumstances which have then arisen in relation to the
scheduled provisions or to the enforcement thereof, may
suspend the operation of this Act or any part thereof
during the period mentioned in the Order, and the same
shall be suspended accordingly.
(2.) Where on any proceeding in any court against a
person or ship in respect of any offence under this Act
it is proved that the ship sailed from its port of de-
parture before the provisions of the award mentioned in
the First Schedule to this Act were known there, and
that such person or the master of the ship did not,
after such sailing and before the alleged oifence,
become aware of those provisions, such person shall be
acquitted, and the ship shall be released and not for-
feited. '
8, This Act shall remain in force so long as-
the scheduled provisions remain in force and no
longer;
Provided that if by agreement between ' Her Majesty
the Queen and the Government of the United States of
America, the scheduled provisions are modiﬁed, then
Her Majesty in Council may order that this Act shall,
1894.] 57 VICT. c. 2.—-LICENCE TO KILL SEALS. 915
subject to any modiﬁcations speciﬁed in the order,
apply, and the same shall accordingly apply, to the
modiﬁed provisions in like manner as if they were set
out in the First Schedule to this Act.
SCHEDULES.
FIRST SCHEDULE.
Pnovrsroxs in AwAnn of the TRIBUNAL of ARBITRATION constituted
under the Treaty concluded at ‘Vashington on the 29th of
February 1892, between HER MAJESTY TIIE QUEEN and the
UNITED STATEs or AMERICA.
And whereas the aforesaid determination of the foregoing questions
as to the exclusive jurisdiction of the United States mentioned in
Article VI. leaves the subject in such a position that the concurrence of
Great Britain is necessary to the establishment of Regulations for the
proper protection and preservation of the fur-seal in or habitually
resorting to the Behring Sea, the Tribunal having decided by a majority
as to each Article of the following Regulations, we, the said Baron de
Courcel, Lord Hannen, Marquis Visconti Venosta, and Mr. Gregers
Gram, assenting to the whole of the nine Articles of the following Regu-
lations, and being a majority of the said arbitrators, do decide and
determine, in the mode provided by the Treaty that the following con-
current Regulations outside the jurisdictional limits of the respective
Governments are necessary, and that they should extend over the waters
herein-after mentioned; that is to say :—
Article 1. The Governments of the United States and of Great
Britain shall forbid their citizens and subjects respectively to kill,
capture, or pursue at any time and in any manner whatever, the
animals commonly called fur-seals, within a zone of 60 miles around
the Pribilqﬂ’ Islands, inclusive of the territorial waters.
The miles mentioned in the preceding paragraph are geographical
miles, of 60 to a degree of latitude.
Article 2. The two Governments shall forbid their citizens and sub-
jects respectively to kill, capture, or pursue, in any manner whatever,
during the season extending each year from the 1st May to the 3131;
July, both inclusive, the fur-seals on the high sea in the part of the
Paciﬁc Ocean, inclusive of the Behring Sea, which is situated to the
north of the 35th degree of north latitude, and eastward of the 180th
degree of longitude from Greenwich till it strikes the water boundary
described in Article I. of the Treaty of 1867 between the United States
and Russia, and following that line up to Behring Straits.
Article 3. During the period of time and in the waters in which the
fur-seal ﬁshing is allowed, only sailing vessels shall be permitted to
carry on or take part in fur-seal ﬁshing operations. They will,
however, be at liberty to avail themselves of the use of such canoes
or undecked boats, propelled by paddles, cars, or sails, as are in common
use as ﬁshing boats.
3M2
916 5'7 VICT. c. 2.—EXEMPTION. [1894.
Article 4.—. Each sailing vessel authorised to ﬁsh for fur-seals must be
provided with a special licence issued for that purpose by its Government,
and shall be required to carry a distinguishing ﬂag to be prescribed by
its Government.
Article 5. The masters of the vessels engaged in fur-seal ﬁshing shall
enter accurately in their official log-book the date and place of each fur-
seal ﬁshing operation, and also the number and sex of the seals captured
upon each day. These entries shall be communicated by each of the two
Governments to the other at the end of each ﬁshing season.
Article 6. The use of nets, ﬁre-arms, and explosives shall be forbidden
in the fur-seal ﬁshing. This restriction shall not apply to shot guns
when such ﬁshing takes place outside of Behring’s Sea during the season
when it may be lawfully carried on.
Article 7. The two Governments shall take measures to control the
ﬁtness of the men authorised to engage in fur-seal ﬁshing. These men
shall have been proved ﬁt to handle with suﬁicient skill the weapons by
means of which this ﬁshing may be carried on.
Article 8. The Regulations contained in the preceding Articles shall
not apply to Indians dwelling on the coasts of the territory of the United
States or of Great Britain and carrying on fur-seal ﬁshing in canoes or
undecked boats not transported by or used in connection with other
vessels, and propelled wholly by paddles, ears, or sails, and manned by
not more than ﬁve persons each in the way hitherto practised by the
Indians, provided such Indians are not in the employment of other per-
sons, and provided that, when so hunting in canoes or undecked boats,
they shall not hunt fur-seals outside of territorial waters under contract
for the delivery of the skins to any person.
This exemption shall not be construed to affect the municipal law of
either country, nor shall it extend to the waters of Behring Sea, or
the waters of the Aleutian Passes.
Nothing herein contained is intended to interfere with the employment
of Indians as hunters or otherwise in connection with fur-sealing vessels
as heretofore.
Article 9. The concurrent regulations hereby determined with a view
to the protection and preservation of the fur-seals, shall remain in force
until they have been, in whole or in part, abolished or modiﬁed by
common agreement between the Governments of the United States and
of Great Britain.
The said concurrent regulations shall be submitted every ﬁve years to
a new examination, so as to enable both interested Governments to con-
sider whether, in the light of past experience, there is occasion for any
modiﬁcation thereof.
SECOND SCHEDULE.
ENACTMENTS OF MERCHANT SHIPPING ACT
(17 8t 18 VICT. c. 104.) APPLIED.
SECTION 103. (1)
=3? =X= =15 =3? 5.?
And in order that the above provisions as to forfeitures may be carried
into effect, it shall be lawful for any commissioned ofﬁcer on full pay in
(1) See sec. 76 (1) (c) 57 & 58 Vict. c. 60. And see note p. 911.
1894.] 57 W01‘. c. 2.-sEcs. KEPT ALIVE. 917
the military or naval service of Her Majesty, or any British ollicer of
Customs, or any British Consular OlllCGl‘, to seize and detain any ship
which has, either wholly or as to any share therein, become subject to
forfeiture as aforesaid, and to bring her for adjudication before the High
Court of Admiralty in England or Ireland, or any Court having
Admiralty jurisdiction in Her Majesty’s dominions ; and such court may
thereupon make such order in the case as it may think ﬁt, and may
award to the officer bringing in the same for adjudication such portion
of the proceeds of the sale of any forfeited ship or share as it may think
right.
SECTION 104. (1)
No such officer as aforesaid shall be responsible, either civilly or
criminally, to any person Whomsoever, in respect of the seizure or deten-
tion of any ship that has been seized or detained by him in pursuance of
the provisions herein contained, notwithstanding that such ship is not
brought in for adjudication, or, if so brought in, is declared not to be
liable to forfeiture, if it is shown to the satisfactiol'l of the judge or court
before whom any trial relating to such ship or such seizure or detention
is held that there were reasonable grounds for such seizure or detention ;
but if no such grounds are shown, such judge or court may award pay-
ment of costs and damages to any party aggrieved, and make such other
order in the premises as it thinks just.
PAR’1 X.(2)—-LEGAL PROCEDURE.
Application.
SECTION 517. (3)
The Tenth Part of this Act shall in all cases where no particular
country is mentioned, apply to the whole of Her Majesty’s dominions.
Legal Procedure (General).
SEc'rIoN 518.0)
In all places within Her Majesty’s dominions except Scotland, the
offences herein-after mentioned shall be punished and penalties recovered
in manner following; (that is to say,) ' *
(1.) Every offence by this Act declared to be a misdemeanor shall be
punishable by ﬁne or imprisonment with or without hard labour,
and the court before which'such offence is tried may in England
make the same allowances and order payment of the same costs and
expenses if such misdemeanor had been enumerated in the Act
passed in the seventh year of His late Majesty King George the
Fourth, chapter sixty-four, or any other Act that may be passed for
(1) Sec. 76. (2). 57 & 58 Vict. c. 60.
(2) Part 13, ibicl.
(3) Sec. 712, ibid.
(4) Sec. 680, ibid.
Officer not
liable for any
seizure made
on reasonable
grounds.
Application.

Application
of Part X. of
the Act.
Legal
P1 oceda'rc
(General).
Punishment of
offences, and
recovery of
penalties.
7 Geo. 4.0. 64.
918
57 VICT. c. 2.—-LEGAL PROCEEDINGS. [1894.
Stipendiary
magistrate to
have same
power as two
justices.
Offence where
deemed to
have been
committed.
the like purpose, and may in any other part of Her Majesty’s
dominions make such allowances and order payment of such
costs and expenses (if any) as are payable or allowable upon
the trial of any misdemeanor under any existing Act or Ordinance
or as may be payable or allowable under any Act or law for
the time being in force therein :
(2.) Every offence declared by this Act to be a misdemeanor shall also
be deemed to be an offence hereby made punishable by imprison-
ment for any period not exceeding six months, with or without
hard labour, or by a penalty not exceeding one hundred pounds,
and may be prosecuted accordingly in a summary manner,
instead of being prosecuted a misdemeanor :
Every oifence hereby made punishable by imprisonment for any
period not exceeding six months, with or without hard labour,
or by any penalty not exceeding one hundred pounds, shall in
England and Ireland be prosecuted summarily before any two
or more ustices, as to England in the manner directed by the
Act of the eleventh and twelfth years of the reign of Her
Majesty Queen Victoria, chapter forty three, and as to Ireland
in the manner directed by the Act of the fourteenth and
ﬁfteenth years of the reign of Her Majesty Queen Victoria,
chapter ninety-three, or in such other manner as may be directed
by any Act or Acts that may be passed for like purposes:
And all provisions contained in the said Acts shall be applica-
ble to such prosecutions in the same manner as if the offences
in respect of which the same are instituted were hereby stated
to be oifences in respect of which two or more justices have
power to convict summarily or to make a summary order:
(4.) In all cases of summary convictions in England, where the sum
adjudged to be paid exceeds ﬁve pounds, or the period of im-
prisonment adjudged exceeds one month, any person who thinks
himself aggrieved by such conviction may appeal to the next
court of general or quarter sessions :
(iii All offences under this Act shall in any British possession be
punishable in any court or by any justice of the peace or
magistrate in which or by whom offences of a like character
are ordinarily punishable, or in such other manner, or by such‘
other courts, justices, or magistrates, as may from time to time
be determined by any Act or Ordinance duly made in such
possession in such manner as Acts and Ordinances in such
possession are required to be made in order to have the force
of law.
SEcTJON 519.(1)
Any stipendiary magistrate shall have full power to do alone whatever
two justices of the peace are by this Act authorized to do.
SECTION 520. (2)
For the purpose of giving jurisdiction under this Act, every offence
shall be deemed to have been committed, and every cause of complaint
(1) See sec. 681, 57 & 58 Vict. c. 60.
(2) Sec. 684, z'bz'd.
1891.] 57 VICT. c. 2.-PnNALTIEs. 919
to have arisen, either in the place in which the same actually was com-
mitted or arose, or in any place in which the offender or person complained
agamst may be.
SECTION 521(1)
In all cases where any district within which any court or justice of the
peace or other magistrate has jurisdiction, either under this Act or under
any other Act or at common law, for any purpose whatever, is situate on
the coast of any sea, or abutting on or projecting into any bay, channel,
lake, river, or other navigable water, every such court, justice of the
peace, or magistrate shall have jurisdiction over any ship or boat being
on or lying or passing off such coast, or being in or near such bay,
channel, lake, river, or navigable water as aforesaid, and over all persons
on board such ship or boat or for the time being belonging thereto, in the
same manner as if such ship, boat, or persons were within the limits of
the original urisdiction of such court, ustice, or magistrate.
SECTION 522.( 1")
Service of any summons or other matter in any legal proceeding under
this Act shall be good service, if made personally 011 the person to be
served, or at his last place of abode, or if made by leaving such summons
for him onboard any ship to which he may belong with the person being
or appearing to be in command or charge of such ship.
SECTION 523(3)
In all cases where any court, justice, or justices of the peace, or other
magistrate, has or have power to make an order directing payment to be
made of any seaman’s wages, penalties, or other sums of money, then, if
the party so directed to pay the same is the master or owner of a ship, and
the same is not paid atthe time and in manner prescribed in the order, the
court, ustice, or justices, or other magistrate, who made the order, may,
in addition to any other powers they or he may have for the purpose of
compelling payment, direct the amount remaining unpaid to be levied by
distress or poinding and sale of the said ship, her tackle, furniture, and
apparel.
SECTION 524. (4)
Any court, justice, or magistrate imposing any penalty under this Act,
for which no speciﬁc application is herein provided, may, if it or he
thinks ﬁt, direct the Whole or any part thereof to be applied in compen-
Sating any person for any wrong or damage which he may have sustained
by the act or default in respect of which such penalty is imposed, or to
be applied in or towards payment of the expenses of the proceedings;
and, subject to such directions or speciﬁc application as aforesaid, all
penalties recovered in the United Kingdom shall be paid into the receipt
of Her M ajesty’s Exchequer in such manner as the Treasury may direct,
and shall be carried to and form part of the Consolidated Fund of the
(1) Sec. 685, 57 a 58 Vict. c. 50.
' (2) Sec. 595 (5), an.
(3) Sec. 593M551.
(4) Sec. 599, and.
Jurisdiction
over ships
lying off the
coasts.
Service to be
good if made
personally, or
on board ship.
Sums ordered
to be paid
leviable by
distress on
ship.
Application of
penalties.
920
57 VICT. c. 2.-—-EVIDENCE. [1894.
Limitation of
time in sum-
mary proceed-
ings.
United Kingdom; and all penalties recovered in any British possession
shall be paid over into the public treasury of such possession, and form
part of the public revenue thereof.
SECTION 525. (1)
The time for instituting summary proceedings under this Act shall be
limited as follows; (that is to say,)
(1.) N o conviction for any offence shall be made under this Act in any
summary proceeding instituted in the United Kingdom, unless
such proceeding is commenced within six months after the
commission of the offence; or, if both or either of the parties
to such proceeding happen during such time to be out of the
United Kingdom, unless the same is commenced within two
months after they both ﬁrst happen to arrive or to be at one
time within the same : i
(2.) No conviction for any offence shall be made under this Act in any
proceeding instituted in any British possession, unless such
proceeding is commenced within six months after the com-
mission of the offence; or if both or either of the parties to
the proceeding happen during such time not to be within the
jurisdiction of any court capable of dealing with the case, unless
the same is commenced within two months after they both
ﬁrst happen to arrive or to be at one time within such juris-
diction:
No order for the payment of money shall be made under this Act
in any summary proceeding instituted in the United Kingdom,
unless such proceeding is commenced within six months after the
cause of complaint arises; or, if both or either of the parties
happen during such time to be out of the United Kingdom,
unless the same is commenced within six months after they
both ﬁrst happen to arrive or to be at one time within the
same:
(4 .) No order for the payment of money shall be made under this Act
in any summary proceeding instituted in any British possession,
unless such proceeding is commenced within six months after
the cause of complaint arises; or, if both or either of the parties
to the proceeding happen during such time not to be within
the jurisdiction of any court capable of dealing with the case,
unless the same is commenced within six months after they
both ﬁrst happen to arrive or be at one time within such
jurisdiction.
And no provision contained in any other Act or Acts, Ordinance or
Ordinances for limiting the time within which summary proceedings
may be instituted shall aﬁect any summary proceeding under this Act.
SECTION 526. (2)
_ Any document required by this Act to be executed in the presence of
Proved Wlthout or to be attested by any witness or Witnesses, may be proved by the
Document
calling attest-
ing witness.
(1) Sec. 683, 57 & 58 Vict. c. 60.
(2) Sec. 694, ibz'cl.
1891.] 57 VIGT. c. 2.--DETAINING SHIP. 921
evidence of any person who is able to bear witness to the requisite facts,
without calling the attesting witness or Witnesses or any of them.
SECTION 527. (1)
Whenever any injury has, in any part of the world, been caused to
any property belonging to Her Majesty or to any of Her Majesty’s sub-
jects by any foreign ship, if at any time thereafter such ship is found
in any port or river of the United Kingdom or within three miles of the
coast thereof, it shall be lawful for the judge of any court of record in
the United Kingdom, or for the judge of the High Court of Admiralty,
or in Scotland the Court of Session, or the sheriff of the county within
whose jurisdiction such ship may be, upon its being shown to him by any
person applying summarilyr that such injury was probably caused by the
misconduct or want of skill of the master or mariners of such ship, to
issue an order directed to any officer of Customs or other oﬁicer named
by such judge, requiring him to detain such ship until such time as the
owner, master, or consignee thereof has made satisfaction in respect of
such injury or has given security to be approved by the judge, to abide
the event of any action, suit, or other legal proceeding that may be
instituted in respect of such injury, and to pay all costs and damages
that may be awarded thereon; and any officer of Customs or other
oflicer to whom such order is directed shall detain such ship accordingly.
SECTION 528. (2)
In any case where it appears that before any application can be made
under the foregoing section such foreign ship will have departed be-
yond the limits therein mentioned, it shall be lawful for any commis-
sioned oflicer on full pay in the military or naval service of Her Majesty,
or any British officer of Customs or any British consular officer, to detain
such ship until such time as will allow such application to be made and
the result thereof to be communicated to him ; and no such ofiicer shall
be liable for any costs or damages in respect of such detention unless
the same is proved to have been made without reasonable grounds.
SECTION 529(3)
In any action, suit, or other proceeding in relation to such injury, the
person so giving security aforesaid shall be made defendant or defender
and shall be stated to be the owner of the ship that has occasioned such
damage; and the production of the order of the judge made in relation
to such security shall be conclusive evidence of the liability of such
defendant or defender to such action, suit, or other proceeding.
Legal Procedure (Scotland).
SECTION 530(4)
In Scotland every offence which by this Act is described as a felony or
misdemeanor may be prosecuted by indictment or criminal letters at the
(1) Sec. 688 (1), 57 & 58 Vict. c. 60.
('-‘) Sec. 688 (2), tbid.
(3) Sec. 688 (3), ibz'd.
(4) Sec. 702 ibid.
Power of judge
of court of
record or
Admiralty to
arrest foreign
ship that has
occasioned
damage.
Power ‘in cer-
tain cases to
detain ship
before appli-
cation made to
judge.
Who to be
defendant to
suit in such
cases.
Legal
Procedure
(Scotland
Oﬂences
punishable as
misdemeanors.

922 57 VICT. c. 2.——CITATION OF DEFT. [1894.
Summary pre-
cecdings.
Form of com-
plai nt.
Mode of
requiring-ap-
pearance of
defender and
witnesses.
instance of Her Majesty’s Advocate before the High Court of Justiciary,
or by criminal libel at the instance of the procurator ﬁscal of the county
before the sheriff, and shall be punishable with ﬁne and with imprison-
ment, with or without hard labour in default of payment, or with
imprisonment, with or without hard labour, or with both, as the court
may think ﬁt, or in the case of felony with penal servitude, where the
court is competent thereto; and such court may also, if it think ﬁt,
order payment by the offender of the costs and expenses of the pro-
secution.
SECTION 531. (1)
In Scotland, all prosecutions, complaints, actions, or proceedings under
this Act, other than prosecutions for felonies or misdemeanors, may be
brought in a summary form before the sheriff of the county, or before
any two justices of the peace of the county or burgh where the cause of
such prosecution or action arises, or where the offender or defender may
be for the time, and when of a criminal nature or for penalties, at the
instance of the procurator ﬁscal of court, or at the instance of any party
aggrieved, with concurrence of the procurator ﬁscal of court; and the
court may, if it think ﬁt, order payment by the offender or defender of
the costs of the prosecution or action.
SncrioN 532. (2)
In Scotland all prosecutions, complaints, actions, or other proceedings
under this Act may be brought either in a written or printed form,
or partly written and partly printed, and where such proceedings are
brought in a summary form it shall not be necessary in the complaint to
recite or set forth the clause or clauses of the Act on which such pro-
ceeding is founded, but it shall be sufficient to specify or refer to such
clause or clauses, and to set forth shortly the cause of complaint or
action, and the remedy sought; and when such complaint or action is
brought in whole or in part for the enforcement of a pecuniary debt
or demand, the complaint may contain a prz-tyer for warrant to arrest
upon the dependence.
SEc'rIoN 533. (3)
In Scotland, on any complaint or other proceeding brought in a
summary form under this Act being presented to the sheriff clerk orv
clerk of the peace, he shall grant warrant to cite the defender to appear
personally before the said sheriff or justices of the peace on a day ﬁxed,
and at the same time shall appoint a copy of the same to be delivered to
him by a sheriff oﬁicer or constable, as the case may be, along with the
citation; and such deliverance shall also contain a warrant for citing
witnesses and havers to compear at the same time and place to give
evidence and produce such writs as may be speciﬁed in their citation;
and where such warrant has been prayed for in the complaint or other
proceeding, the deliverance of the sheriff clerk or clerk of the peace
shall also contain warrant to arrest upon the dependence in common
(‘) Sec. 703, 57 & 58 Vict. c. 60.
(2) Sec. 704, ibid.
(3) Sec. 705, are.
1894.] 57 VICT. C. 13.—ARREST OF DEFENDANT. 923
form: Provided always, that where the apprehension of any party, with
or without a warrant, is authorized by this Act, such party may be
detained in custody until he can be brought at the earliest opportunity
before any two justices, or the sheriﬁ who may have jurisdiction in the
place, to be dealt with as this Act directs, and no citation or inducize
shall in such case be necessary.
SEcTIoN 534. (1) '
\Vhen it becomes necessary to execute such arrestment on the depend-
ence against goods or eifects of the defender within Scotland, but not
locally situated within the jurisdiction of the sheriff or justices of the
peace by whom the warrant to arrest has been granted, it shall be com-
petent to carry the warrant into execution on its beingr indorsed by the
sheriff clerk or clerk of the peace of the county or burgh respectively
within which such warrant comes to be executed.
SECTION 535.
In all proceedings under this Act in Scotland the sheriff or justices
of the peace shall have the same power of compelling attendance of
witnesses and havers as in cases falling under their ordinary jurisdiction.
SECTION 536.
The whole procedure in cases brought in a summary form before the
sheriff or justices of the peace in Scotland shall be conducted viva voce,
without written pleadings, and without taking down the evidence in
writing, and no record shall be kept of the proceedings other than the
complaint, and the sentence or decree pronounced thereon.
SECTION 537.
It shall be in the power of the sheriff or justices of the peace in
Scotland to adjourn the proceedings from time to time to any day or
days to be ﬁxed by them, in the event of absence of witnesses or of any
other cause which shall appear to them to render such adjournment
necessary.
SECTION 533(2)
In Scotland all sentences and decrees to be pronounced by the sheriff
or justices of the peace upon such sunnnary complaints shall be in
writing; and where there is a decreefor payment of any sum or sums
of money against a defender, such decree shall contain warrant for
arrestment, poinding, and imprisonment in default of payment, such
arrestment, poinding, or imprisonment to be carried into eifect by sherlﬁs’
oﬁicers or constables, as the case may be, in the same manner as in cases
arising under the ordinary jurisdiction in the sheriif or justices: Pro~
(1) Sec 706, 57 & 58 Vict. c. 60.
(2) Sec. 707, iln'cl.
Backing arrest-
ments.
Compelling
attendance of
witnesses.
Provisions to
be viva voce.
Power to
adjourn.
Sentence to be
in writing.
Imprisonment
to be inﬂicted
in default of
payment.
9241 57 VICT. c. 2.—DEFEOT IN FORM. [1894.
5 & 6 W. 4.
c. 70.
Sentence and
penalties in
default of
defender’s
appearance.
Warrant to
apprehend in
default of
appearance.
Backing
sentences or
decrees.
Orders not to
be quashed for
want of form;
and. to be ﬁnal.
vided always, that nothing herein contained shall be taken or construed
to repeal or affect an Act of the ﬁfth and sixth years of William the
Fourth, intituled “ An Act for abolishing, in Scotland, imprisonment
for civil debts of small amount.”
SECTION 539(1)
In all summary complaints and proceedings for recovery of any penalty
or sum of money in Scotland, if a defender who has been duly cited
shall not appear at the time and place required by the citation, he shall
be held as confessed, and sentence or decree shall be pronounced against
him in terms of the complaint, with such costs and expenses as to the
court shall seem ﬁt : Provided always, that he shall be entitled to obtain
himself reponed against any such decree at any time before the same be
fully implemented, by lodging with the clerk of court a reponing note,
and eonsigning in his hands the sum decerned for, and the costs which
had been awarded by the court, and on the same day delivering or
transmitting through the post to the pursuer or his agent a copy of such
reponing note ; and a certiﬁcate by the clerk of court of such note
having been lodged shall operate as a sist of diligence till the cause shall
have been reheard and ﬁnally disposed of, which shall be on the next
sitting of the court, or on any day to which the court shall then
adjourn it.
SECTION 540.
In all summary complaints or other proceedings not brought for the
recovery of any penalty or sum of money in Scotland, if a defender,
being duly cited, shall fail to appear, the sheriff or justices may grant
warrant to apprehend and bring him before the court.
SECTION 541 . (1")
In all cases where sentences or decrees of the sheriff or justices require
to be enforced within Scotland, but beyond the jurisdiction of the sheriff
or justices by whom such sentences or decrees have been pronounced,
it shall be competent to carry the same into execution upon the same
being endorsed by the sheriff clerk or clerk of the peace of the county
or burgh within which such execution is to take place.
SECTION 542. (3)
No order, decree, or sentence pronounced by any sheriff or justice of
the peace in Scotland under the authority of this Act shall be quashed or
vacated for any misnomer, informality, or defect of form ; and all orders,
decrees, and sentences so pronounced shall be ﬁnal and conclusive, and
not subject to suspension, advocation, reduction, or to any form of review
or stay of execution, except on the ground of corruption or malice on
the part of the sheriff or justices, in which case the suspension, advoca-
tion, or reduction must be brought within fourteen days of the date of
(1) Sec. 708, 57 & as Vict. c. 60.
(2) Sec. 706, ﬁnd.
(3) Sec. 709, Mid.
1894.] 57 a 58 vIeT. c. 30.—-DETENTION or SHIP. 925
the order, decree, or sentence complained of: Provided always, that no
stay of execution shall be competent to the effect of preventing immediate
execution of such order, decree, or sentence.
SECTION 543. (1)
Such of the general provisions with respect to jurisdiction, procedure
and penalties contained in this Act as are not inconsistent with the
special rules herein-before laid down for the conduct of legal proceedings
and the recovery of penalties in Scotland, shall, so far as the same are
applicable, extend to such last-mentioned proceedings and penalties :
Provided always, that nothing in this Act contained shall be held in any
way to annul or restrict the common law of‘Scotland with regard to the
prosecution or punishment of offences at the instance or by the direction
of the Lord Advocate, or the rights of owners or creditors in regard to
enforcing a judicial sale of any ship and tackle, or to give to the High
Court of Admiralty of England any jurisdiction in respect of salvage in
Scotland which it has not heretofore had or exercised.
ENAOTMENT OF MERCHANT SHIPPING ACT, 1876
(39 & 40 VICT. c. 80.), APPLIED.
[Note—The whole Act was repealed by Merchant Shipping Act, passed
25 Aug. 1894, 57 & 58 Vict. c. 60.; but nothing in that Act was to
affect the Behring Sea Award Act : sec. 745 (f
SECTION 34. (2)
Where under the Merchant Shipping Acts, 1854 to 1876, or any of
them, a ship is authorized or ordered to be detained, any commissioned
ofﬁcer on full pay in the naval or military service of Her Majesty, or
any officer of the Board of Trade or Customs, or any British consular
ofﬁcer may detain the ship, and if the ship after such detention or after
service on the master of any notice of or order for such detention proceeds
to sea before it is released by competent authority, the master of the
ship, and also the owner, and any person who sends the ship to sea, if
such owner or person be party or privy to the offence, shall forfeit and
pay to Her Majesty a penalty not exceeding one hundred pounds.
Where a ship so proceeding to sea takes to sea when on board thereof
in the execution of his duty any officer authorized to detain the ship, or
any surveyor or officer of the Board of Trade or Customs, the owner and
master of the ship shall each be liable to pay” all expenses of and
incidental to the officer or surveyor being so taken to sea, and also a
penalty not exceeding one hundred pounds, or, if the offence is not
prosecuted in a summary manner, not exceeding ten pounds for every
day until the oﬁicer or surveyor returns, or until such time as would
enable him after leaving the ship to return to the port from which he is
taken, and such expenses may be recovered in like manner as the penalty.
(1) Sec. 710, 57 & 58 Vict. c. 60.
('2) Sec. 692, 27nd.
General rules,
so far as appli-
cable, to extend
to penalties
and procooi lings
in Scotland.
Enforcing'
detention of
ship.
926 - 57 58 VICT. c. 39.—PRIZE COURTS. [1894.
57 a 58 nor. (1894) c. 30.
THE FINANCE ACT.
[31815 July 1894.]
British Possessions.
Exception as to 20.—-(l.) Where the commissioners are satisﬁed that in a British
PI’QPPPt-y in possession to which this section applies, duty is payable by reason of a
B22211. ‘ death in respect of any property situate in such possession, and passing
p “810% on such death, they shall allow a sum equal to the amount of that duty
to be deducted from the estate duty payable in respect of that property
on the same death.
(2.) Nothing in this Act shall be held to ‘create a charge for estate
duty on any property situate in a British possession, while so situate,
or to authorize the commissioners to take any proceedings in a British
possession for the recovery of any estate duty.
(3.) Her Majesty the Queen may, by Order in Council, apply this
section to any British possession where Her Majesty is satisﬁed that,
by the law of such possession, either no duty is leviable in respect of
property situate in the United Kingdom when passing on death, or that
the law of such possession as respects any duty so leviable is to the
like eﬂ’eot as the foregoing provisions of this section. .
(4.) Her Majesty in Council may revoke any such order, where it
appears that the law of the British possession has been so altered that it
would not authorize the making of an order under this section. See
LR. Dig. 1891—5, 255.
57 a 58 vror. (1894) c. 39.
An Act to make further provision for the establish-
ment of Prize Courts, and for other purposes con-
nected therewith. [17th Aug. 1894.]
E it enacted by the Queen’s most Excellent Majesty, by and with
_ the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows:
short title, 1, This Act may be cited as the Prize Courts Act, 1894.
Constitution 2_—(1.) Any commission, warrant, or instructions from Her Majesty
of prize courts the Queen or the Admiralty for the purpose of commissioning or regulating
in British the procedure of a prize court at any place in a British possession may,
Possesslons- notwithstanding the existence of peace, be issued at any time, with a
direction that the court shall act only upon such proclamation as herein-
after mentioned being made in the possession.
(2.) Where any such commission, warrant, or instructions have been
issued, then, subject to instructions from Her Majesty, the Vice-
Admiral of such possession may, when satisﬁed by information from
a Secretary of State or otherwise, that war has broken out between
Her Majesty and any foreign State, proclaim that war has so broken
out, and thereupon the said commission, warrant, and instructions shall
take eﬁect as if the same had been issued after the breaking out of such
war and such foreign State were named therein.
1894.] 57 & 58 VICT. e. 60.—MERCHANT SHIPPING. 927
(3.) The said commission and warrant may authorize either a Vice-
Admiralty Court or a Colonial Court of Admiralty, within the meaning
of the Colonial Courts of Admiralty Act, 1890, to act as a prize court, 53 8t 54 Vict.
C‘
N)
\I
and may establish a Vice-Admiralty Court for that purpose. -
(4.) Any such commission, warrant, or instructions may be revoked or
altered from time to time. -
(5.) A court duly authorized to act as a prize court during any war
shall after the conclusion of the war continue so to act in relation to, and
ﬁnally dispose of, all matters and things which arose during the war,
including all penalties and forfeitures incurred during the war.
3,—(1.) Her Majesty the Queen in Council may make rules of court Rules of
for regulating, subject to the provisions of the Naval Prize Act, 1864, court for
and this Act, the procedure and practice of prize courts within the ‘W1 “(i-"'1';
‘ pl’lZC (‘0111' 3.
meaning of that Act and the duties and conduct of the officers thereof . .. .v a ’ ’ 21A 28 \ let.
and of the practitioners therein, and for regulating the fees to be taken c. 25_
by the officers of the courts, and the costs, charges, and expenses to be
allowed to the practitioners therein.
Every rule so made shall, whenever made, take effect at the
time therein mentioned, and shall be laid before both Houses of Parlia-
ment, and shall be kept exhibited in a conspicuous place in each court
to which it relates.
(3.) This section shall be substituted for section thirteen of the Naval 27 8t 28 Vic-t.
25.
Prize Act, 1864, which section is hereby repealed. . 0.
(4.) If any Colonial Court of Admiralty within the meaning of the 53 g; 54 Vict
C‘.
Colonial Courts of Admiralty Act, 1890, is authorized under this Act or
otherwise to act as a prize court, all fees arising in respect of prize
business transacted in the court shall be ﬁxed, collected, and applied-
in like manner as the fees arising in respect of the Admiralty business of
the court under the said Act. _
4;, Her Majesty the Queen in Council may make rules of court As to Vice_
for regulating the procedure and practice, including fees and costs, in a Admiralty
Vice-Admiralty Court, whether under this Act or otherwise. Courts-
5, Section twenty-ﬁve of the Government of India Act, 1800, is Repeal of
hereby repealed. 39 & 40
Geo. 3. c. 79.
s. 25.
57 a as VICT. (1894.) c. 60.
[Summarised chieﬂy with a View to colonial, but also in
respect to general application]
An Act to consolidate Enactments relating to Merchant
Shipping.1 [25th Aug. 1894.]
PART 1.---This answers to Part 2 of 17 & 18 Vict. c. 104.
By Sect. 91 Part 1 is extended to the whole of Her Majesty’s
dominions.
REGISTRY.
1, A ship shall not be deemed to be a British ship unless owned Qualiﬁcation
wholly by persons of the following description: for Owning
(11.) N atural-born British subjects:
1 [Proposed by Bill in 1896 to be amended by applying to all contracts made for
the carriage of animals by sea, sect. 7 of the Railway Canal Traﬂic Regulation
Act 1854, 17 a 18 Vict. c. 31. - -
British ships.
928 57 a 58 VICT. c. 60.—REGISTRATION. [1894.
(6.) Persons naturalized by or in pursuance of an Act of Parliament
of the United Kingdom, or by or in pursuance of an Act or
ordinance of the proper legislative authority in a British pos~
session :
(0.) Persons made denizens by letters of denization ; and
(d) Bodies corporate established under and subject to the laws of
some part of Her Majesty’s dominions, and having their
principal place of business in those dominions :
Provided that any person who either— .
(i) being a natural-born British subject has taken the oath of
allegiance to a foreign sovereign or state or has otherwise
become a citizen or subject of a foreign state; or
(ii) has been naturalized or made a denizen as aforesaid ;
shall not be qualiﬁed to be owner of a British ship unless, after taking
the said oath, or becoming a citizen or subject of a foreign state, or on
or after being naturalizedor made denizen as aforesaid, he has taken the
oath of allegiance to Her Majesty the Queen, and is during the time he
is owner of the ship either resident in Her Majesty’s dominions, or partner
in a ﬁrm actually carrying on business in Her Majesty’s dominions.
2, 3, Every British ship must be registered (except exempted),
otherwise not recognised as a British ship, and may be detained until
certiﬁcate of registration is produced. The exempted ships were ships of
15 tons employed solely on rivers or coast of the United Kingdom or
on the rivers or coasts of some British possession within which the
managing owners are resident, and (2) ships not exceeding 30 tons and not
having a whole deck, and employed solely in ﬁshing and trading coastwise
on the shores of iVewfoundland or adjacent parts, or in the Gulf of St.
Lawrence or adjacent coasts of Canada. 17 & 18 Vict. c. 104, s. 19.
4:, The procedure for registration is given. This Sec. provides that at
any port in the United Kingdom or Isle of lllan the registrars of ships
shall be the chief officer of customs. In the Channel Islands the same,
together with the Governor : in Malta and Gibraltar the Governor: at
Calcutta, llladras, Bombay, the port oﬂicer. “ At any other port in
any British possession approved by the Governor of the possession for the
registry of ships, the chief officer of customs, or if there is no such officer
there resident, the Governor of the possession in which the port is
situate, or any ofﬁcer appointed for the purpose by the Governor.” At
a port of registry established by Order in Council persons of the descrip~
tion declared by the order.
(2.) “ Notwithstanding anything in this section Her Majesty may by
Order in Council declare with respect to any British possession named in
the Order, not being the Channel Islands or the Isle of If an, the descrip-
tion of persons who are to be registrars of British ships in that possession.”
A registrar is not to be liable for any damages unless he is in wilful default.
5, A register book is to be kept. The ship shall be divided into
64 shares : and not more than 64 individuals shall be entitled to be regis-
tered except where the Act provides for joint owners or owners by
transmission: that this rule was not to affect the beneﬁcial title of any
number of persons or of any company claiming through any registered or
joint owner. No one can be registered as owner of a fractional part of
a share, but any number of persons up to ﬁve may be registered as joint
owners of a ship or of any share or shares therein. Joint owners are
to be considered as constituting one person only as regards registration,
and cannot dispose in severalty of any interest in a ship, or in any share
therein. A corporation may be registered as owner in itsQcorporate name.
1894.] 57 ass VIOT. 'c. 60.—CERT. or REGISTER. 929
6, Every British ship shall before registry, be surveyed by a surveyor
of ships and her tonnage ascertained. For above, see 17 & 18 Vict.
c. 104. ss. 30, 32, 37, 36.
7, Every British ship shall be marked with her name on her bows
and the name of her port of registry on her stern; her official number
and tonnage on her main beam, and her draught of water on each side
of her stem and sternpost. 36 & 37 Vict. c. 85. s. 3.
8, Application for registry of a ship is to be made by the person
requiring to be registered as owner, or in the case of several individuals
or a corporation by their or its agent. 17 & 18 Vict. c. 104. s. 35.
9, A declaration of ownership is to be made by the person, or in ‘the
case of a corporation its agents, giving particulars of his qualiﬁcation or
the corporation’s constitution and business : the time and place when and
where the ship was built, 850. : the master’s name: the number of shares
held by him or the corporation : and a declaration that to the best of his
belief no unqualiﬁed person or body of persons is entitled as owner to
any legal or beneﬁcial right therein. 17 & l8 Vict. c. 104. s. 38.
10, On the ﬁrst registry, the following evidence is to be produced :—If
a British-built ship, a builder’s certiﬁcate containing a true account
of the proper denomination and tonnage as estimated by him, and
where and on whose account she was built; and if there has been any
sale, the bill of sale. In the case of a foreign-built ship, the above
particulars so far as known. If a condemned ship, an official copy of the
condemnation. And if a person in granting a builder’s certiﬁcate wilfully
makes a false statement he is liable to a penalty up to 100l. 1'7 & 18 Vict.
c. 104. ss. 40, 41.
11, All the above evidence is to be entered in the register book.
17 & 18 Vict. c. 104. s. 42.
12, O11 the registry of a ship, the registrar is to retain the sur-
veyor’s certiﬁcate, the builder’s certiﬁcate, any bill of sale previously
made, the copy of the condemnation (if any), and all declarations of
ownership. 17 & 18 Vict. c. 104. s. ()1-
13, The port at which a British ship is registered for the time being
shall be deemed her port of registry and to which she belongs.
14, On completion of registration the registrar is to grant acertiﬁcate
of registry, comprising the entries on the register and the name of the
master.
15, The certiﬁcate of register is to be used only for the lawful
navigation of the ship; and is notito be subject to detention by reason of
any title, lien, charge, or interest whatever. (2 ) If any person, whether
interested in the ship or not, refuses to deliver up the certiﬁcate to the
person entitled to its custody for the lawful navigation of the ship or ‘to
any registrar, oﬁ‘icer of customs, or other person entitled by law to require
such delivery, any justice or any court capable of taking cognlzance of
the matter may summon such person, and unless he shows there was
reasonable cause for such refusal the oﬁender shall be liable to a ﬁne not
exceeding 100l. (3) Or if the person so refusing absconds or persists in
his refusal to give up the certiﬁcate, the justice or the court shall certify
the fact, and proceedings may then be taken as, for a certiﬁcate mislaid,
lost, or destroyed. 17 8t 18 Vict. c. 104. ss. 50, 51. _
3 N
S 2340.
930 57 a 58 vIo'r. c. 60.—TRANS. or PROPERTY. [1894.
16, A penalty isimposed on wrongful use of the certiﬁcate. 17 8t 18
Vict. c. 104. s. 52.
1'7, 18, Powers are given with the approval of the Commissioners
of Customs to the registrar of the ship’s port to grant a new certiﬁcate
on delivery up of the old in lieu of an original certiﬁcate lost or destroyed.
If the ship is not at her port of registry, then the master or some person
having knowledge of the facts, is to make a declaration, and the registrar
or consular oﬁicer at that port is to grant a provisional certiﬁcate, which
is to be within 10 days after the arrival of the ship at her port, in the
United Kingdom, if the port of registry is there, or in a British possession,
or Order in Council port of registry, delivered up to the registrar of her
port of registry, and a new certiﬁcate obtained. 17 8t 18 Vict. c. 104. ss. 47,
48.
19, 20, An endorsement is to be made on the registry of the
last appointed master or any change of ownership. 17 & 18 Vict. c. 104.
ss. 45, 46.
21, Notice that a ship is lost or when she ceases to be British-owned
is to be given at her port of registry, and her certiﬁcate delivered up ; if
such event happens away from her port, then within 10 days of the
master’s arrival in port he is to deliver the certiﬁcate to the registrar, or
if none there, then to the British consular officer. And these persons
are to forward it to the registrar of the ship’s port. 17 80 18 Vict.
c.104.s.53.
22, A provisional certiﬁcate for a ship on her becoming British-
owned may be granted by British consular oﬁicer if the port is not within
Her Majesty’s dominions nor a port of registry by Order in Council.
17 8t 18 Vict. c. 104. s. 54.
. 23, Commissioners of Customs or Governor of a British possession
may for special reasons grant a temporary pass from one port to another
without the ship being previously registered. 17 & 18 Vict. c. 104. s. 98.
24—26, Transfer of ship or shares shall be by bill of sale containing
a description of the ship; and transferee shall make a declaration of his
qualiﬁcation to own a British ship; and every bill of sale shall be registered
in the register book of the ship’s port. 17 8c 18 Vict. c. 104. ss. 55, 56.
57 .
2'7 deals with transmission of property in ship on death, bank-
ruptcy, marriage, of registered owner. ‘ 17 85 18 Vict. c. 104. ss. 58, 59, 60.
28, Where the property or a share in a British ship is transferred by
such cause as in s. 27 to a person not qualiﬁed as owner. If the ship is
registered in England the High Court, in Scotland the Court of Session,
and in any British possession the principal civil urisdiction, may, on the
application of the unqualiﬁed person, order a sale and direct that the
proceeds be paid to the person entitled. Application for sale must be
made within four weeks after the event of transmission ; if not made, the
ship or share may be forfeited. 1'7 & 18 Vict. c. 104. ss. 62, 64.
29, Where the court orders the sale of the ship or share the order of
court shall contain a declaration vesting in some person named by the
court the right to transfer that ship or share. 17 & 18 Vict. c. 104.
s. 63. -
30, The court having the principal jurisdiction in the United
Kingdom or any British possession may prohibit transfer. 17 8t 18 V1ct.
c. 104. s. 65.
1894.] 57 a 58 vrc'r. c. 60.-ALTERATIONS IN SHIP. 931
31, 32, A mortgage of a ship or share may be made security for
a loan, and is to be in a certain form and registered. A note in the
register, where the mortgage is discharged, is also to be made. 17 & 18
Vict. c. 104. ss. 66, 6'7, 68.
33, If more than one, then priority of registration of mortgages
to prevail. 1'7 & 18 Vict. c. 104. s. 69. -
34, 35, Mortgagee is not to be treated as owner ; but to have power
of sale. 17 & 18 Vict. c. 104. ss. '70, '71.
36, A mortgage is not to be affected by the bankruptcy of the mort-
gagor after the date of the record of the mortgage. 17 & 18 Vict.
c.104.s.72.
37, 38, A registered mortgage in a ship or share can be transferred,
and the transfer is to be recorded in the register book, and the mortgage
may be transmitted by marriage, death, or bankruptcy, 85c. 17 & 18
Vict. c. 104. ss. 73, '74, '75.
39, Powers of mortgage and sale at any place out of the country in
which the port of register of the ship is, may be conferred by certiﬁcate
granted by the registrar. 17 &- 18 Vict c. 104. s. 76.
40, 41, Before a certiﬁcate of mortgage is granted the applicant must
state to the registrar the name of the person to exercise the powers, and
the amount of the charge to be created, &-c., the place and limit of time;
but (41) a certiﬁcate of mortgage shall not be granted “ so as to authorise
any mortgage or sale to be made—If the port of registry of the ship is
situated in the United Kingdom, at any place within the United Kingdom,
or, if the port of registry is situate within a British possession, at any
place within the same British possession: ” or at an Orderjin Council port,
&c., “ By any person not named in the certiﬁcate.” 17 8t 18 Vict.
c. 104. ss. 77, 78.
42, 43, 44, 45, 46 referred to contents of certiﬁcates of mort-
gage and sale : and rules to be observed therewith : renewal of the same
when lost; and revocation thereof. 17 8t 18 Vict. c. 104. ss. '79, 80,
81,82,83.
4'1 provided rules as to name of ship; amongst others, that a
change should not be made in the name of a ship without the permission
of the Board of Trade : and that where a foreign ship becomes a British
ship, she was not to be registered except by the name she bore unless the
Board of Trade gave leave. 34 81. 35 Vict. c. 110. S. 6.
48, 49, When a registered ship is so altered as not to correspond
with the particulars as relating to tonnage, &c., in the register book, then
if the alteration is made at any portrtheregistrar of that. port, or if none
there, the registrar at the ﬁrst port at which the ship arrives after the
alteration may on application and production of a certiﬁcate from the
proper surveyor cause the alteration to be registered. Then followed
regulations to be observed. 1'7 8: 18 Vict. c. 104. s. 84.
50, The registrar, not being the registrar of the ship’s port of registry,
may on an application as to an alteration in a ship, either grant a provisional
certiﬁcate, or endorse the particulars on the existing certiﬁcate. And every
provisional certiﬁcate, &c., shall, within 10 days after arrival at her port of
discharge, if in the United Kingdom, if there registered, or if registered in
a British possession at her port of discharge there, and the same as to
Order in Council port, be delivered up to the registrar, and that registrar
3N2
932 57 a 58 VIGTJc. 60.—INSPECTION or BOOKS. [1894.‘
shall cause the ship to be registered anew, and the registrar granting a
provisional certiﬁcate shall send particulars to the registrar of the ship’s
port. 17 85, 18 Vict. c. 104. part of ss. 85, 86.
51, 52, There may be registry anew on change of ownership, and any
unsatisﬁed mortgage or existing certiﬁcates of sale or mortgage entered
thereon shall be entered on the new register. 17 8t 18 Vict. c. 104. s. 88.
53, Registry of any ship maybe transferred from one port to another,
and the registrar of the old port is to send to the registrar of the
intended port every particular of the ship. 17 & 18 Vict. c. 104. ss. 89,
90, 91.
54;, When a ship has ceased to be a British ship she is not to be
re-registered until surveyed. 36 & 3T Vict. c. 85. s. 6.
55 dealt with incapacitated persons, such as infants and lunatics,
and gave power to the guardian or committee of such incapacitated
persons to make declarations, &c. 17 813 18 Vict. c. 104. s. 99.
. 56, 5'1 dealt with trusts and equitable rights. 17 81; 18 Vict. c. 104.
s. 43; 25 & 26 Vict. c. 63. s. 3.
58 made the beneﬁcial ‘owners as well as the registered owner either
jointly or separately liable. l7 & 18 Vict. c. 104. s. 100.
59, Ship’s managing owner, or if none the ship’s husband, e.g.
manager, is to be registered. 39 & 40 Vict. c. 80. s. 36.
60, Power is given to the registrar, with the approval of the Com-
missioners of Customs, to dispense with declarations. 17 85 18 Vict.
c. 104. s. 97.
61, Declarations were to be made before a registrar of British
ships, or a justice of the peace, or a commissioner for oaths, or a
British consular ofﬁcer, and may be made on the part of a corporation
by the secretary or other oﬂicer.
62, Fees taken under this part of the Act in the lfnited King-
dom were to.be towards the expense of carrying into effect this part of the
Act. Fees taken in aBritish possession are to be disposed of as the Execu-
tive Government there direct, and if at an Order in Council port as that
order directs. l7 & 18 Vict. c. 104. s. 95.
63-65 dealt with returns to be made by registrars in the United
Kingdom. Register books may be inspected for a fee of one shilling, or
less. Register books were to be admissible as evidence The forms
in the 2nd part of the 1st Schedule were to be used. The Commis-
sioners of Customs, with the consent of the Board of Trade, may give
instructions to their officers as to making entries, attestation of powers
of attorney, &c. 17 & 18 Vict. c. 104. ss. 92, 94. 35 & 36 Vict c. 73.
s. 4.
66, 6'7, Forgery of the register book, &c., declaration, bill of sale,
instrument of mortgage, certiﬁcate of mortgage, &c., was made felony ;
and, making a false statement concerning the title to a ship, &c.,
knowir)ig it to be false, a misdemeanor. 17 & 18 Vict. c. 104. ss. 10],
103 (4 .
68—‘13 provides that an officer of customs shall not grant a clearance
until the master declares the nation to which the ship belongs. Then
there are penalties for assuming the character of a British ship, or
concealing the British character or assumption of a foreign character.
1894.] 57 a 58 vIoT. eeo-ToNNAGE. 933
That the red ensign, without any defacement, is the proper national
colours for all ships belonging to any British subject, except in the case
of Her Majesty’s ships. If any colours usually Worn by Her Majesty’s
ships or pendant are hoisted on board any British ship without authority,
a tine up to 500i. may be incurred, and the colours may be seized, the ﬁne
being recoverable in the High Court, in the Court of Session, Scotland,
or in any Colonial Court. of Admiralty or Vice-Admiralty within Her
Majesty’s dominions: but if prosecuted summarily the ﬁne is not to be
higher than 1001. 17 81; 18 Vict. c. 104. ss. 102, 103, 104, 105, 106;
52 & 53 Vict. c. 73. s. 13.
'74, A ship belonging to a British subject is to hoist the proper
national colours 011 a signal from one of Her Majesty’s ships: on entering
or leaving any foreign port; or if 50 tons gross burden, on leaving any
British port, subject to a ﬁne of 1001. if not done. 52 & 53 Vict. c. 7 3.
s. 2.
'75, Rights of Admiralty saved.
'76, Where subject to forfeiture a ship may be seized and detained by
any commissioned oﬁicer on full pay in the military or naval forces of
Her Majesty, by an oﬁicer of customs in Her Majesty’s dominions, or
any British consular oﬁ'icer, and he or they shall not be liable, civilly or
criminally, for such detention if the court holds there were reasonable
grounds for such seizure, &c. 17 80 18 Vict. c. 104. s. 103. See 39 & 4O
Vict. c. 80. s. 34.
'77, Rules were laid down for ascertaining the tonnage of every ship
to be registered. 17 & 18 Vict c. 104. s. 21; 52 & 53 Vict. c. 43. s. 1.
'78, Allowance for space occupied by propelling power. 17 8: 18
Vict. c. 104. s. 23; 52 8t 53 Vict. c. 43. s. 2.
'79, Deductions for ascertaining tonnage, master’s accommodation and
crew ; space occupied by the helm, &c. ; chart room, and space occupied
by donkey engine; and if a sailing vessel, the sail room. These spaces
must be certiﬁed as reasonable in extent by surveyor. 52 & 53 Vict.
c. 43. s. 3.
80, Provisions as to deductions in case of certain screw steamers.
52 & 53 Vict. c. 43. s. 4.
81, Measurement of ships with double bottoms for water ballast,
the upper side to be taken as the ﬂoor. 52 & 53 Vict. c. 43. s. 5.
82, Tonnage once ascertained to be the tonnage of ship, unless form
or capacity of ship altered or tonnage erroneously computed. 17 - 8c 18.
Vict. c. 104. s. 26.
83, Fees for measurement to be paid into mercantile marine fund.
36 & 37 Vict c. 85. s. 30.
84:, Whenever ships of foreign countries adopt" tonnage regulations
of this Act, Her Majesty by Order in Council may order that ships of
that country shall be deemed of the tonnage denoted in their certiﬁcates.
52 & 53 Vict. c. 43. s. 6.
85, Space occupied by deck cargo in a British or foreign, other than
a home trade ship, to be added to ship’s registered tonnage, and ascertained
by an officer of the Board of Trade or of Customs; and tonnage dues
paid for that space occupied by goods. 39 & 40 Vict. c. 80. s. 23.
86, Surveyors and regulations for measurement for ships.
8'7, Levy of tonnage rates under Local Acts on the registered tonnage.
25 & 26 Vict. c. 63. s. .4.
934 57 a 58 vrcr. c. eo-c'oL. nn'ers'rav. [1894.
Powers of
Governors 1n
colonies.
Terminable
certiﬁcates of
registry for
small ships in
colonies.
88, A foreign port where Her Majesty exercises jurisdiction under
53 8t 54 Vict. c. 37. may be declared a port of registry. 36 & 37 Vict.
c. 85. s. 29.
Registry in Colonies.
89, In every British possession the Governor of the possession shall
occupy the place of the Commissioners of Customs with regard to the
performance of anything relating to the registry of a ship or of any
interest in a ship registered in that possession, and shall have power to
approve a port within the possession for the registry of ships. 17 8a 18
Vict. c. 104. s. 31.
90,—-—(1.) The Governor of a British possession may, with the
approval of a Secretary of State, make regulations providing that, on an
application for the registry under this Act in that possession of any ship
which does not exceed sixty tons burden, the registrar may grant, in lieu
of a certiﬁcate of registry as required by this Act, a certiﬁcate of registry
to be terminable at the end of six months or any longer period from the
. granting thereof, and all certiﬁcates of registry granted under any such
regulations shall be in such form and have effect subject to such condi-
tions as the regulations provide.
(2) Any ship to which a certiﬁcate is granted under any such regula-
tions shall, while that certiﬁcate is in force, and in relation to all things
done or omitted during that period, be deemed to be a registered British
ship. 31 & 32 Vict. c. 129. ss. 1, 2.
91, This part of the Act shall apply to the whole of Her Majesty’s
dominions, and to all places where Her Majesty has jurisdiction.
Part 2 (sees. 92 to 266) of the Act answers to Part 3 of 17 8t 18
Vict. c 104., and by sec. 264 may be made applicable to a British pos-
session by colonial legislative enactment.
92, Every British foreign-going and home trade passenger ship when
going to sea, and every foreign steamship carrying passengers between
places in the United Kingdom, shall be provided with officers duly
certiﬁed as competent. Then it gives a list of these. See 17 & 18 Vict.
c.104.s.136.
93, Grades of certiﬁcates of competency shall be granted to the
master, ﬁrst mate, second mate, and only mate of a foreign-going ship ;
master and mate of a home-trade passenger ship. First_class engineer,
second-class engineer. The certiﬁcate for foreign-going ship to be
deemed the higher grade.
94, 95, Examinations for certiﬁcates to be held by local marine
boards, &0. 17 8t 18 Vict. c. 104. s. 131.
96, For the purpose of obtaining engineers’ certiﬁcates of com-
petency, examinations may be held as the Board of Trade directs.
9'1 directed fees to be paid on examinations. 25 & 26 Vict. c. 63.
s. 6.
98, Grant of certiﬁcates on passing examinations, and giving evidence
of sobriety, experience, ability, and general good conduct.
99, Certiﬁcates of service to be given to Her Majesty’s naval oﬁicers,
lieutenants, &c., and otﬁcers of Indian Marine without examination, also
to engineers of the Royal Navy or Indian Marine.
1894.] v5'7 & 58 VICT. c. 60.—Gears. OF COMPETENGY. 935
100, 101, Certiﬁcates of competency to be made in duplicate, and a
record kept of them, and if a master, mate, or engineer proves he has
lost his certiﬁcate, a copy may be supplied to him. 17 & 18 Vict. c. 101.
ss. 138, 139.
102, Where the legislature of any British possession provides for the
examination of and grant of certiﬁcates of competency to persons
intending to act as masters, mates, or engineers on board ships, and the
Board of Trade report to Her Majesty that they are satisﬁed that the
examinations are so conducted as to be equally eﬁicient with the examina-
tions for the same purpose in the United Kingdom under this Act, and
that the certiﬁcates are granted on such principles as to show the like
qualiﬁcations and competency as those granted under this Act, and are
liable to be forfeited for the like reasons and in the like manner, Her
Majesty may by Order in Council—-
(i) declare that the said certiﬁcates shall be of the same force as if
they had been granted under this Act : and
(ii) declare that all or any of the provisions of this Act, which relate
to certiﬁcates of competency granted under this Act, shall
apply to the certiﬁcates referred to in the Order: and
(iii) impose such conditions and make such regulations with respect
to the certiﬁcates, and to the use, issue, delivery, cancellation,
and suspension thereof, as Her Majesty may think ﬁt, and
impose ﬁnes not exceeding ﬁfty pounds for the breach of
those conditions and regulations. 32 Vict. c. 11. s. 8.
103, The master of a foreign-going ship on signing the agreement
with the crew before a superintendent shall produce the certiﬁcates of com-
petency, also in the case of a running agreement. And such certiﬁcates
as the Act directs to be held shall be produced to some superintendent
within 21 days after 30 June and 31 December in every year, by the
master or owner of every home-trade passenger ship over 80 tons burden.
And the supe-rintendent’s certiﬁcate that this has been done is, on the
ship proceeding to sea, to be shown to the oﬂicer of customs.
104;. Forgery, &c., of certiﬁcate of competency.
105, Assistance is to be given by superintendents as to persons
desiring to apprentice boys to, or requiring apprentices for, the sea
service. 17 & 18 Vict. c. 104. s. 141.
106 dealt with apprenticeship of paupers in Great Britain and
Ireland. 17 & 18 Vict. c. 104. s. 144.
107, Attestation of pauper apprenticeship is to be before two justices
of the peace, who shall ascertain the consent of the boy and that he is
over 12. ‘
108, Apprenticeship to the sea service to be in duplicate, and steps be
taken to record it within seven days of its execution.
109, The master of a foreign-going ship shall, before carrying an
apprentice to sea, produce the boy and indenture before the superinten-
dent, and the apprentice’s name is to be entered on the agreement with the
crew. 17 & 18 Vict. c. 104:. s. 145. '
110, The Board of Trade may grant licences to persons to supply
seamen and apprentices. 17 & 18 Vict. c. 104. s. 146.
111 dealt with penalty for engaging seamen without licence. 17 & 18
Vict.. c. 104;. .s. 147.
Colonial cer-
tiﬁcates of
competency.
936 57 a 58 VICT. c. 60.—ENGAGEMENT or SEAMEN. [1894
112, Penalty for receiving remuneration other than fees under the Act
from seaman for ﬁnding him employment. 17 8t 18 Vict. c. 104. s. 148.
113, The master of every ship, except ships of less than 80 tons,
shall make an agreement with every seaman carried to sea as one of his
crew. 17 8t 18 Vict. c. 104. ss. 149, 157.
114: dealt with the form, period, and conditions of agreements with
the crew. 36 8t 37 Vict. c. 85. s. 7; 17 85 18 Vict c. 104. 149.
115, 116, Special provisions in case of foreign-going ship and home-
trade ships, as to agreements with crew, e.g., as to the signing by each
seaman, and reading over by superintendent to the crew. They dealt
also with running agreements, and agreements for service in two or more
ships. 17 85 18 Vict. c. 104. ss. 150, 151, 155, 156.
117, Changes in crew of foreign-going ships before ﬁnally sailing to
be sent to the nearest superintendent. 17 & 18 Vict. c. 104. s. 158.
118, 119 dealt with certiﬁcates to be granted by the superintendent
to the master, as to agreements with crew of foreign~going and home-
trade ships : lst, that such agreements have been made : 2nd, that notice of
agreements has been given within 21 days after 30 June and 31 Dec.
17 85 18 Vict. c. 104. ss. 161, 162.
120, A copy of agreement with the crew was to be posted up in the
ship where the crew could see it. 17 85 18 Vict. c. 104. 166.
121, 122 dealt with forgery, 81-0., of, and alterations, without consent,
made in the agreements with the crew. 17 8c 18 Vict. c. 104. ss. 164, 163.
123. Seamen can in any proceedings prove the agreement without
producing it. 17 85 18 Vict. c. 104. s. 165.
iggflienilgm of 124;,—(1.) With respect to the engagement of seamen abroad, the
colonial and following provisions shall have effect :—
foreign Ports “There the master of a ship engages a seaman in any British possession
other than that in which the ship is registered or at a port in which there
is a British consular officer, the provisions of this Act respecting agree-
ments with the crew made in the United Kingdom shall apply subject to
the following modiﬁcations :—
(a.) In any such British possession the master shall engage the seaman
before some oﬁicer being either a superintendent or, if there
is no such superintendent, an ‘officer of customs :
(b.) At any such port having a British consular officer, the master
shall, before carrying the seaman ‘to sea, procure the sanction
of the consular officer, and shall engage the seaman before
that officer:
(0.) The officer shall endorse upon the agreement an attestation to
the effect that the agreement has been signed in his‘presence
and otherwise made as required by this Act, and also, if the
oﬁicer is a British consular officer, that it has his sanction,
and if the attestation is not made the burden of proving that
the engagement was made as required by this Act shall lie
upon the master. '
(2) If a master fails to comply with this section he shall be liable for-
each offence to a ﬁne not exceeding ﬁve pounds. 17 8t 18 Vict. c. 104.
ss. 159, 160.
125 dealt with agreements with lascars. 18 85 19 Vict. c. 91. s. 23;
17 85 18 Vict. c. 104. s. 544.
126, The Rating of Seamen as AB. 43 8t 44 Vict. 0.16. s. 7.
1894.] 57 a 58 vIoT. c. 60.-ALLOTMENT OF WAGES. 937
127-130 dealt with the discharge of seamen, where they were
discharged in the presence of a superintendent, and the master shall
give a discharge, and return the seaman’s certiﬁcate of competency
if he had received it. And the master is also to sign a report of the
seaman’s conduct and qualiﬁcations—in fact, give him a character.
gigging a false character is to be punished. 17 8t 18 Vict. c. 104. ss. 172,
131, Where a seaman is discharged before a superintendent he shall
receive his wages through or in the presence of the latter. 17 & 18 Vict.
c. 104. s. 170.
132, The master is to deliver a full account of wages before he pays
off a seaman, and to state all deductions whatever. 17 & 18 Vict.
c. 104. s. 171, and 43 & 44 Vict. c. 16. s. 4.
133, Deductions from wages of seamen shall not be allowed unless
included in the account, except they arise after the account is delivered;
and the deductions are to be entered in a book during the voyage.
17 & 18 Vict. c. 104. s. 171.
134;, 135 dealt with time of payment of wages for foreign-going
and home-trade ships, and was in effect that the whole was to be paid
within two clear days after the seaman leaves the ship. For sec. 134
see & 44 Vict. c. 16. s. 4; and for sec. 135 see 17 8t 18 Vict. c. 104.
s. 1 .
136. \Vhere a seaman is discharged, and the settlement of his wages
is completed before a superintendent, he shall sign a receipt in release
of all claims. 17 & 18 Vict. c. 104. s. 175; 43 & 44 Vict. c. 16. s. 4.
137, If a dispute as to wages totalling under 51., the decision of the
questions may be left to the superintendent. 43 & 44 Vict. 0.16.
s. 4 (5); 17 85 18 Vict. c. 104. s. 173.
138, In any proceedings re wages claims or discharges before a
superintendent, the superintendent may require the production of the
ship’s papers, 800. 17 & 18 Vict. c. 104. s. 174.
139, Where a seaman has agreed for payment in British sterling, or
any other money, any payment on account of his wages, if made in any
other currency than that stated in the agreement, shall, notwithstanding
anything in the agreement, be made at the rate of exchange for the
money stated in the agreement for the time current at the place where
the payment is made. 52 & 53 Vict. c. 46. s. 4.
140 dealt with advance payments, which were restricted to one
month’s pay, paid on condition of his going to sea in pursuance of the
agreement; but, save as aforesaid, an agreement for payment of money
to the seaman conditionally on his going to sea from any port in the
United Kingdom was to be void. 17 & 18 Vict. c. 104. s. 149; 52 &
53 Vict. c. 46. s. 2 '
141, Stipulations as to allotment of wages during voyages were to be
inserted in the agreement, and near relative was deﬁned as wife, father,
mother, grandfather, grandmother, child, grandchild, brother or sister
of the seaman. 17 & l8 Vict. c. 104. ss. 168, 169; 43 & 44 Vict‘.
c. 16. s. 3.
142, Allotments through savings banks were to be paid out only
.on an application through a superintendent of the Board of Trade by the
seaman himself, or, if dead, to some person to whom his property, if under
1001., may be paid under the Act. 43 & 44 Vict. c. 16. s. 3
938 '57 a 58 vror. 5. 60.—DEOEASED’S'WAGES. [1894.
143, 144 dealt with the right of suing for sums allotted when and
as the same are made payable if not paid, but barred the wife from pay-
ment if she misconducted herself, and enacted that payment should begin
at the expiration of one month, or, if in favour of a savings bank, of
three months. 17 85 18 Vict. c. 104. s. 169; 43 85 44 Vict. c. 16.
s. 3
145, provides that the Board of Trade may make regulations concern-
ing seamen’s wages being remitted by money orders. 17 85 18 Vict.
c.104.s.177.
146, Power is given to the Board of Trade to pay amount of sea-
men’s money order when order is lost. 17 85 18 Vict. c. 104. s. 178.
14"] provides for penalty for issuing money orders with fraudulent
intent. 17 85 18 Vict. c. 104. s. 179; 54 85 55 Vict. c. 69. s. 1.
148, Power is given to the Board of Trade to maintain a central
seamen’s savings bank in London, and establish branch banks and make
regulations. 17 85 18 Vict..c. 104. s. 180; 18 85 19 Vict. c. 91. s. 17.
149, National Debt Commissioners may receive from and repay to
the Board of Trade deposits in seamen’s savings banks and invest the
money so received in the same way as deposits from trustee savings
banks. 17 85 18 Vict. c. 104. s. 180.
150, Deposits of any deceased depositor to be paid by the Board of
Trade as if they were deposits of deceased seaman received under pro-
visions of this Act. 17 85 18 Vict. c. 104. s. 199; 25 85 26 Vict. c. 63.
s. 21 (4).
151, Expenses of savings banks may be paid out of interest received
from National Debt Commissioners.
152 provides that annual accounts and copy of regulations of Board
of Trade be laid before Parliament.
153, Board of Trade oﬁicers to be exempt from legal proceedings,
except in case of wilful default.
154 enacted that forgery of documents, &c., for the purpose of obtain-
ing money in seaman’s savings bank shall be punished with penal servi-
tude. 17 85 18 Vict. c. 104. s. 203.
155, Right to wages, &c., shall be taken to begin either at the time
the seaman, &c., commences work, or at the time speciﬁed in his agree-
ment. 17 85 18 Vict. c. 104. s. 181.
156 provides that a seaman shall not by any agreement forfeit his
lien on the ship, or be deprived of any remedy for the recovery of his
wages, nor by agreement abandon his right to wages in the event of the
loss of the ship, or abandon any right he may have or obtain in the
nature of salvage; but nothing in the section was to apply to a stipulation
made by seamen belonging to a ship employed on salvage service.
17 85 18 Vict. c. 104. s. 182; 25 8t 26 Vict. c. 63. s. 18.
157. The right to wages shall not depend on earning freight; but in all
cases of wreck or loss of the ship, proof that the seaman has not exerted
himself to save the same shall bar his claim to wages. Deceased sea-
man’s wages are to be paid as if he died during avoyage. l7 .8: _18Vict.
c. 104. ss. 183, 184. .
158, Wages on termination of service by wreck or illness of seaman,
or his being leftabroad under a certiﬁcate of his unﬁtness to proceed on
the voyage, are only due to such time. 17 85 .18 Vict. c. 104. s. 185.
1894.] 57 a 58 v'rcr'. c. 60.—RECOVERY or WAGES. 939
159 provides that wages are not to accrue during any time a seaman
unlawfully refuses to work, or during imprisonment, unless the court
otherwise orders. 17 82; 18 Vict. c. 104. s. 186.
160, If a seaman’s illness incapacitating him from work is proved to
have been caused by his own default, he shall not be entitled to wages
for the time he was incapable of performing his duty. 30 86 31 Vict.
c. 124. s. 8.
161, The costs of procuring the punishment by a competent tribunal
of a seaman may be deducted from wages. 17 86 18 Vict. c. 104.
s. 251.
162 provides that where a seaman has signed an agreement, but is
discharged otherwise than in the terms thereof before the commencement
of the voyage, or before one month’s wages are earned, without fault
on his part, and without his consent, he shall be entitled, in addition to
the wages he has earned, to due compensation, not exceeding one
month’s wages, and may recover it in the same way as if it were wages
duly earned. 17 & 18 Vict. c. 101. s. 167.
163 provides that wages due to a seaman or apprentice to the sea service
shall not be subject to attachment or arrestment from any court. That
an assignment of the same made prior to the accruing thereof shall not
be binding. A power of attorney to receive the same shall not be irre-
vocable, and a payment of wages to the seaman or apprentice shall be
valid, notwithstanding any previous sale, assignment, attachment, incum-
brance, or arrestment thereof. 17 & 18 Vict. c. 104. s. 233. .
164:, Wages not exceeding 501. may be obtained by proceedings
before any court of summary jurisdiction in or near the place where the
discharge took place, or at any place where the person on whom the claim
is made resides, and the order made by the court is to be ﬁnal. 17 82 18
Vict. c. 104. s. 188.
165, A suit for wages not over 50L shall not be instituted on behalf
of any seaman or apprentice to the sea service in any superior court ‘of
record in Her Majesty’s dominions, nor as an Admiralty proceeding in
any court having Admiralty jurisdiction in, those dominions, except
(1) where the shipowner is adjudged bankrupt ; where the ship is under
arrest or sold by the authority of such court; (3) where a court of summary
jurisdiction refers the claim to any such court; or (4) where neither the
owner nor the master resides within 20 miles of the place where the
claimant is discharged or put ashore. 17 & 18 Vict. c. 104. s. 189.
166 provides that wages should not be recoverable abroad if the engage-
ment was for a voyage terminating in the United Kingdom, unless the
seaman is discharged with such sanction as is required by the Act, and
with the written consent of the master, or proves such ill-usage by the
master as warrants reasonable apprehension of danger to his life; and
secondly, if a seaman, on his return to the United Kingdom, proves that
the master or owner has been guilty of any such conduct which but for
this section would have entitled him to sue for wages before the
termination of the voyage, he shall be entitled to compensation not
exceeding 20L l7 & 18 Vict. c. 104. s. 190.
167 provides that a master shall have the same rights, liens, and
remedies for the recovery of his wages as a seaman, and he, and every
person lawfully acting as master of a ship by reason of the death or in-
capacity from illness of the master, shall, as far as possible, have the
940 57 ass mm. c. 60.—SEAMAN DYING ABROAD. [1894.
same rights for the recovery of disbursements properly made on account
of the ship; and thirdly, if in any Admiralty proceeding in any court
having Admiralty jurisdiction touching the claim of, a master, the
court may take notice of any counter-claim, and may settle all accounts
between the parties to the proceeding. 17 85 18 Vict. c. 104. s. 191;
52 85 53 Vict. c. 46. s. 1.
168, Power is given to any court in suits instituted before it to
rescind any contract between seaman, 850., and owner.
169, The property of seamen of aBritish ship who die during voyage
are to be taken charge of by the master, who may, if he think ﬁt, sell
them by auction, entering in his oﬁicial log book a description of the
articles: what each sold for : what wages were due, and what were the
deductions; which entry is to be signed by the master and attested by
the mate and some other member of the crew. 17 85 18 Vict. c. 104.
s. 194.
1'70, Where a seaman, 850., dies, and the ship remains 48 hours at
some port elsewhere than in the United Kingdom, the master shall report
the case to the British consular officer, or, if the port is a British posses-
sion, to the oﬂicer of customs there, who may require the property to be
delivered or paid to him, giving the master a receipt, which the master is
to produce to the superintendent 48 hours after his arrival at his port in
the United Kingdom. Where the ship proceeds at once to the United
Kingdom, or the said ofﬁcers do not require delivery of the property,
then within 48 hours of the ship’s arrival in the United Kingdom the
property is to be delivered or paid to the superintendent at that port,
with an account of the property, and no deduction is to be allowed unless
entered in the oﬂicial log book. 17 85 18 Vict. c. 104. s. 195.
1'71, If the master does not do the above things he is liable for the
property of the deceased seaman, and liable to a ﬁne not exceeding treble
the value of the property not accounted for, and if the master does not
deliver or account for the property the owner is liable in the same way
and to the same penalty, and the property may be recovered in the same
way as seaman’s wages. 17 85 18 Vict. c. 104. s. 196.
1'72 provides that if property of a deceased seaman is left abroad
but not on board ship, the chief oﬁicer of customs, in the case of a British
possession, and in other cases the British consular ofﬁcer, shall take
charge of the property. 17 85 18 Vict. c. 104. s. 197; 25 8t 26 Vict.
c. 63. s. 20.
1'73, A chief officer of customs in a British possession may sell any
of the property of a deceased seaman delivered to him, and shall render
accounts thereof quarterly, or as required, to the Board of Trade. 17 85
18 Vict. c. 104. s. 197.
1'74 dealt with the recovery of wages, 850., of seamen lost with their
ships. 25 85 26 Vict. c. 63. s. 21.
1'75 dealt with property of seamen dying at home. 17 85 18 Vict.
c.104.s.198.
1'76 dealt with the payment over of property of deceased seamen by
Board of Trade. 17 85 18 Vict. c. 104. s. 199.
177 provided for the dealing with deceased seaman’s property when
he leaves a will. 17 85 18 Vict. c. 104.-s. 200.
1'78, Claims by creditors. 17 85,18 Vict. -c. 104. s. 201. - < - '
1894.] 57 a 58 VIGT c. 80 —SEAMEN LEFT ABROAD. 9441
1'79, Dealing with unclaimed property of deceased seaman after
six years, where no claim to it. 17 81; 18 Vict. c. 104. s. 202.
180 dealt with the case of forgery of documents, &c., for the pur-
pose of obtaining property of deceased seamen. 17 8t 18 Vict. c. 104.
s. 203.
181 dealt with property of seamen discharged from Royal Navy and
dying on their way home in a merchant ship. 17 80 18 Vict. c. 104.
s. 204.
182 Relief to seamen’s families, to be chargeable on a certain pro-
portion of their wages. 17 & 18 Vict. c. 104. s. 192.
183, Boards of guardians may give notice to owner of ship whereon
seaman is serving of any claim, and may enforce the charge on seaman’s
return. 17 86 18 Vict. c. 104. s. 193.
184 dealt with penalties imposed on masters of ships leaving certain
seamen in distress in the United Kingdom, namely, seamen they had
brought from any foreign country not having a consular officer in the
United Kingdom. 17 80 18 Vict. c. 120. s. 16.
185 provides for the Secretary of State in Council of India taking
charge and sending home destitute lascars, and as to guardians giving
notice to the said Secretary of State of relief given to lascars, who is to
repay the guardians all money expended by them in the relief of destitute
lascars. 18 80 19 Vict. c. 91. s. 22.
186 provides for the case where a British ship is transferred at any
port outside Her Majesty’s dominions, and a seaman does not consent
to continue the voyage, or where the services of any seaman, &c.,
terminate at any port out of Her Majesty’s dominions; the master in
such cases is to pay the seaman’s wages, provide him with employment
on some British vessel homeward bound, or provide him or the consular
officer or head merchant of the place with the expenses of the seaman’s
passage home, otherwise these expenses, by whomsoever incurred, are to
be a charge upon the ship. 17 85 18 Vict. c. 104. s. 205.
187 provides that any master forcing seamen on shore, either in or
out of Her Majesty’s dominions, or leaving them behind, shall be
guilty of misdemeanor. 17 80 18 Vict. c. 104. s. 206.
188, Seaman, &c., are not to be discharged or left abroad, ashore or
at sea, unless the master previously obtains, endorsed on the agreement,
the sanction, or in the case of leaving behind the certiﬁcate, at any place
in a British possession, of a superintendent or chief officer of customs,
or elsewhere of a British consular officer, or in his absence of two
merchants, or if one there, that one; but this sanction was not to be
required if the discharge was in the British possession where the
seaman was shipped. If sanction, where necessary, is not obtained,
the master is guilty of misdemeanor. l7 & 18 Vict. c. 104. s. 207.
189, An account of wages and payment of the same is to be made to
the person signing the certiﬁcate, in the case of a seaman left abroad, in
or out of Her Majesty’s dominions, on the ground of the seaman’s
unﬁtness or inability to proceed on the voyage. If the seaman is left in
a British possession, the master shall pay the amount of wages to the
seaman so left, but if left elsewhere, to the British consular otﬁcer, and
where possible, the payment is to be made in money; if not by bill drawn
on the owner of the ship, the person signing the certiﬁcate is to endorse
942 57 a 58 vIo'r. 5. 60.—DISTRESSED SEAMEN. [1894.-
Provisions for
maintenance
and relief of
distressed
seamen.
the bill that the same is drawn for seaman’s Wages, and shall also endorse
on the agreement with the crew the amount of the bill, and the owner
shall be liable to pay holder or endorsee.
In regard to wages paid to the consular ofﬁcer, if the seaman
quits the port he shall deduct out of the sum the maintenance of the
seaman and hand him the balance ; if the seaman dies, he shall deal with
the sum as property of a deceased seaman ; and if the seaman is sent home
at the public expense, he shall account to the Board of Trade. 17 85 18
Vict. c. 104. s. 209; 25 & 26 Vict. c. 63. s. 19.
190, The Board of Trade may make regulations as to the relief,
maintenance, and sending home of distressed seamen.
191,-—(1.) The following authorities, that is to say, Governors of
British possessions, British consular otﬁcers, and other officers of Her
Majesty in foreign countries shall, and, in places where there are no such
ollicers, any two resident. British merchants, or if there is only one British
merchant so resident that merchant, may, in accordance with and on the
conditions prescribed by the distressed seamen regulations, provide for
the maintenance, until a passage home can be procured, of the following
seamen and apprentices (who are in this Act included in the term
distressed seamen) ; namely,—
(a. Seamen and apprentices to the sea service, whether subjects
of Her Majesty or not, who by reason of having been dis-
charged or left behind abroad or shipwrecked from any British
ship, or any of Her Majesty’s ships, are in distress in any
place abroad; and
(5.) Seaman and apprentices to the sea service, being subjects of
Her Majesty, who have been engaged by any person acting
either as principal or agent to serve in a ship belonging to
the Government or to a subject or citizen of a foreign
country, and are in distress in any place abroad.
(2.) For the purpose of providing a distressed seaman with a passage
home, the authority shall put him on board a British ship bound either
to the United Kingdom or to the British possession to which the seaman
belongs (as the case requires), which is in want of men to make up its
complement; or if there is no such ship, then the authority shall provide
the seaman with a passage home as soon as possible in any ship, British
or foreign, bound as aforesaid.
(3.) The authority shall endorse on the agreement with the crew of
the ship, if a British ship, on board of which a distressed seaman is
placed, the name of every person so placed on board, with any particulars
directed by the distressed seamen regulations to be endorsed.
(4.) The authority shall be paid in respect of the expenses of the
maintenance and conveyance of distressed seamen such sums as the
Board of Trade may allow, and those sums shall, on the production of
the bills of disbursements, with the proper vouchers, be paid as herein-
after provided. 25 85 26 Vict. c. 63. s. 22; 17 85 18 Vict. c. 104.
s. 211; 18 85 19 Vict. c. 91. s. 16.
192, Masters of ships are compelled to afford a passage to and main-
tain all distressed seamen whom it is required under this Act to take on
board not exceeding one for every 50 tons burden, and on production
of the certiﬁcate signed by the authority by whose direction any dis-
tressed seaman was received, and on a declaration made before a JP.
and veriﬁed by the Registrar-General of Shipping and Seamen, stating
the number of days’ maintenance, and stating full complement of his
crew and the actual number, he will be paid for the maintenance and
passage of every seaman so conveyed, exceeding the number, if any,
1894.] 57 a 58 vIcT. c. 60.—MEDICAL STORES. 943
wanted to make up the complement of his crew. If the master fails to
comply without reasonable cause he will be liable to a penalty of lOOZ.
l7 & l8 Vict. c. 104. s. 212.
193, Where any expenses, either with respect to any seaman belong-
ing to a British ship or with respect to a subject of Her Majesty engaged
to serve in a ship belonging to the government or subject or citizen of a
foreign country, either for the maintenance, clothing, conveyance home,
or burial, are incurred by or on behalf of the Crown or are incurred by
the government of a foreign country and repaid to that country by or on
behalf of the Crown, those expenses shall be a charge upon the ship,
whether British or foreign, to which such distressed seaman belonged,
and also, if the ship be a foreign ship, against the person, whether
principal or agent, who engaged the seaman, &c., for service. 17 80 18
Vict. c. 104. s. 213.; 18 85 19 Vict. c. 91. s. 16.
194;, All expenses paid by or on behalf of the Crown for relief of
distressed seamen shall be paid out of the mercantile marine fund, and
the sums received towards those expenses shall be carried to the credit
of that fund. 45 & 46 Vict. c. 55. s. 3 (6.).
195, 196, 197 dealt with seamen and their rights on leaving their
ship to forthwith enter the Royal Navy. 17 (Q6 18 Vict. c. 104. ss. 214,
215, 216, 217, 218, 219, 220.
198 provides for the complaints of three or more of the crew of
a British ship who consider the water for the use of the crew unﬁt for
use or deﬁcient in quantity :—That they might complain to either an
oﬂicer in command of one of Her Majesty’s ships, a British consular
officer, a superintendent or a chief oﬂicer of customs: and if the person
making the examination ﬁnds that the provisions or water are iinﬁt for
use or deﬁcient in quantity, he shall signify it in writing to the master;
and if the master does not provide other proper provisions or water
or uses any provisions or water so stated to be unﬁt for use, he shall be
liable to a ﬁne not exceeding 201. The person making the examination
shall enter his report in the otﬁcial log book; and if he certiﬁes there was
no reasonable ground for the complaint, each of the complainers shall be
liable to forfeit out of his wages a sum not exceeding one week’s wages.
l7 & l8 Vict. c. 104. ss. 221, 222.
199 dealt with an allowance to a seaman for short or bad provi-
sions. 17 & 18 Vict. c. 104. s. 223.
200, The Board of Trade is authorized to issue scales of medicines
and medical stores suitable for dilferent classes of ships and voyages.
3O & 31 Vict. c. 124. s. 4.
201, Proper weights and measures are to be kept on board.
17 85 18 Vict. c. 104. s. 225.
202 provided for the inspection of medicines, medical stores, and
ante-scorbutics. 17 & 18 Vict. c. 104. s. 224.
203, For the medical inspection of seamen.
10
204 provided for the appointment of medical inspectors.
Vict. c. 104. s. 226; 30 d5 31 Vict. c. 124. s. 10 (1.).
205, The Governor of a British possession shall have the power in
that possession—
(a) of appointing medical inspectors of seamen, of charging fees for
medical examinations by those inspectors, and of determining
the remuneration to be paid to those inspectors ; and,
30 85 31 Vict. c. 124.
178018
Appointment
of medical
inspector and
regulations as
to supply of
anti-scorbutics
in colonies.
0
944 57 & as VICT. c. 60.—HURT TO SEAMAN. . [1894.
(1).) subject to the laws of that possession, to make regulations con-
eerning the supply in that possession of anti-scorbutics for
the use of ships, and anti-scorbutics duly supplied in accord-
ance with those regulations shall be deemed to be ﬁt and
proper for the use of ships.
30 & 31 Vict. c. 124. s. 6.
206 provided for inspection of provisions and water for crew of
ships going through the Suez Canal or round the Cape of Good Hope.
20'], If the master of, or a seaman, or apprentice belonging to a ship
receives any hurt or injury in the service of the ship, the expense of pro-
viding the necessary surgical and medical attendance and medicine, and
also the expenses of the maintenance of the said injured persons until he is
cured or dies, or is brought back, if shipped in the United Kingdom to a
port in the United Kingdom, or if shipped in a British possession to a
port of that possession, and of his conveyance to the port, and in case of
death the expense of burial, shall be defrayed by the owner of the ship
without any deduction on that account from his wages. So also if he has to
be removed to avoid infection, or if the illness is brought on by bad pro-
visions or water. And the expenses of all medicines and attendance is
to be defrayed in the same manner. In all other cases the reasonable
expenses in respect to illness or burial, if proved, are to come out of the
seaman’s wages. l7 & 18 Vict. c. 104. s. 228 ; 30 & 31 Vict. c. 124. s. 7.
208, If any expenses attendant on the illness, hurt, or injury of asea-
man, &c., which are to be paid by the master or owner, are paid by any
British consular oﬂicer or other person on behalf of the Crown, these ex-
penses are to be repaid to that person by the master, and if not so repaid
are to be charged upon the ship ; and a certiﬁcate of the facts, signed by
such person, shall be sufﬁcient proof of such expense. 17 & 18 Vict.
c. 104. s. 229.
209, Every foreign-going ship having 100 persons on board is to
carry a medical practitioner on board. 17 & 18 Vict. c. 104. s. 230.
210 dealt with the accommodation for seamen. l7 & 18 Vict.
c. 104. s. 231; 30 8t 31 Vict. c. 124. s. 9.
211 dealt with the facilities to be allowed to seamen for making
complaint. 17 & 18 Vict. c. 104. s. 232.
212, Assignment or sale of salvage by a seaman made prior to the
accruing thereof is invalid, and a power of attorney for receipt of such
salvage is not irrevocable. 17 & 18 Vict. c. 104. part of s. 233.
213, No debt exceeding 58. incurred by any seaman after he is
engaged is recoverable until the service agreed for is concluded.
17 85 18 Vict. c. 104. s. 234.
214 dealt with seamen’s lodging-houses; and gave power to local
authorities to make bye-laws respecting the same, and the expenses may
come out of their funds as sanitary authorities. 46 & 47 Vict. c. 41.
s. 48.
215 provides for penalties for overcharges by lodging-house keepers.
17 8t 18 Vict. c. 104. s. 235.
216’ 21'] provide for penalty for detaining seamen’s eifects and
solicitations by lodging-house keepers. l7 & 18 Vict. c. 104. ss. 236,
237, 238.
1894.] 57 a 58 vIo'r. 5. 60.—ARREST 0E DESERTERS. 945
218, Penalty for being on board ship without permission before
seamen leave at the end of their engagement. 17 85 18 Vict. c. 104.
s. 237; 43 85 44 Vict. c. 16. s. 5.
219 extended the provisions of the last section to foreign ships where
the government of the country of those foreign ships has provided a
similar law. 43 85 44 Vict. c. 16. s. 6.
220 dealt with the punishment of master, seaman, or apprentice of
British ship who by wilful breach of duty or by neglect of duty endanger-
ing life or loss or serious damage to ship. 17 85 18 Vict. c. 104. s. 239.
221 dealt with desertion, and absence without leave, of seamen.
17 85 18 Vict. c. 104. s. 243.
222, A seaman deserter in the United Kingdom can be conveyed on
board ship, but if he so requires he may ﬁrst be taken before some court
capable of hearing the matter, and if such court thinks that the seaman
is being conveyed on board on insufficient grounds it may ﬁne up to 201.
the person guilty. 43 85 44 Vict. c. 16. s. 10.
223 provided for the case of a seaman out of the United Kingdom
during a voyage being guilty of desertion or absence without leave, and gave
power to the master, 85c., in any place in Her Majesty’s dominions, with
or without the assistance of the local police, and also out of Her
Majesty’s dominions in and so far as the laws in that place will admit, to
arrest him without ﬁrst procuring a warrant. He may be taken before a
court; or, if he does not desire it, or if there isno court, he can be conveyed
direct on board. If the court considers the arrest improper it can
impose a ﬁne up to 201., which ﬁne is to be a bar to any action for
false imprisonment. If out of the United Kingdom a seaman is suffer-
ing imprisonment for desertion or breach of discipline, and his services
are required on board ship, a .I.P. may, on the application of the master,
owner, or agent, notwithstanding the term of imprisonment is not at
an end, cause the seaman 850. to be conveyed on board his ship.
17 85 18 Vict. c. 104. ss. 148, 246.
224, Where a seaman is brought before a court out of the United
Kingdom for desertion, the court in lieu of imprisonment may cause the
offender to be conveyed on board ship for the purpose of proceeding
on his voyage. But if in the United Kingdom, a seaman intending to
absent himself from his duty may give the master notice, not less than
48 hours before he ought to be on board, and then the court is not to
exercise any of the powers given of having him conveyed on board.
17 85 18 Vict. c. 104. s. 247; 43 85 44 Vict. c. 16. part s. 10.
225 provides for the punishment of seamen 85c. lawfully engaged to the
sea service commiitting any offences against discipline. 17 85 18 Vict,
c. 104. s. 243 (3) to end. '1 ' ' 5 r ,.
226, Summary remedies of master are not to affect his remedies for
breach of contract.
227 provides for penalty for false statement by a seaman as to his last
ship or her name. 17 85 18 Vict. c. 104. s. 255.
228, All offences are to be entered in oﬁ'icial log-book, a copy being
furnished to the accused seaman, and produced in any future legal pro-
ceeding. 17 85 18 Vict. c. 104. s. 244.
229, If a seaman deserts his ship abroad, the master is to produce
the entry of the desertion to the person authorized to grant certiﬁcates
8 2430. 3 O
9416 57 a 58 VICT. c. eo-ronnren DESERTERS. [1894.
for leaving seamen behind, and that person is to transmit a copy to the
Registrar-General of Shipping, 850., England. 17 85 18 Vict. c. 104.
s. 249.
230 provided that a superintendent shall keep a register of deserters.
231, The entry in the oﬁicial log-book is good to prove desertion in
proceedings for forfeiture of wages. 17 & 18 Vict. c. 104. s. 250.
232, Forfeitures of wages and effects for desertion are to go towards
reimbursing expenses caused by the desertion, and the balance to be
paid into the exchequer. In any other case other than desertion, in the
absence of speciﬁc provision to the contrary, the forfeitures are to be
for the beneﬁt of the master or owner. 17 85 18 Vict. c. 104. 253.
233, Any questions of forfeiture or deductions from the wages of a
seaman may be determined in any proceedings instituted with respect to
those wages. 17 85 18 Vict. c. 104. s. 254.
234, Where the seaman contracts for wages by the voyage, run, or
share, the amount of forfeiture out of wages shall be an amount bearing
the same proportion to the whole wages or share, as a month or any
other period ﬁxed bears to the whole time spent in the voyage.
17 85 18 Vict. c. 104. s. 252.
235 dealt with deduction from wages: and payments to superinten-
dents of ﬁnes. 17 85 18 Vict. c. 104. s. 256.
236 dealt with penalties for enticing to desert and harbouring
deserters. 17 85 18 Vict. c. 104. s. 257.
237, Penalties on stowaways : the discipline of stowaways : and
seamen carried under compulsion. 17 85 18 Vict. c. 104. s. 258.
238, “There facilities are given by foreign governments for recovery
of seamen who desert from British merchant ships, Her Majesty may,
by Order in Council, declare this section to apply ; and where it applies in
the case of any foreign country, and a seaman or apprentice not being a
slave deserts when within any of Her Maj esty’s dominions from a merchant
ship belonging to a subject of that foreign country, any court, &c., that
would have cognisance of the matter if the seaman had deserted from a
British ship, shall, 011 application of a consular oﬁicer of the foreign
country, aid in the apprehension of the deserter, and may, on information
given on oath, issue a warrant, and on proof of the desertion order the
seaman to be conveyed on board the foreign ship. 15 & 16 Vict. c. 26.
s. 1.
239-243 dealt with official logs and the keeping of the same.
17 85 18 Vict. c. 104. ss. 280, 281, 282, 283, 284, 285, 286, 287.
244, 245 dealt with Local Marine Boards. 17 85 18 Vict. c. 104.
ss. 110, 119.
246-250, Mercantile marine oﬁicers. 17 85 18 Vict. c. 104. ss. 122,
123, 124, 127; 36 85 37 Vict. c. 85. s. 10; 25 85 26 Vict. c. 63. s. 16.
251, Establishment in the port of London, under the control of the
Board of Trade, of a general register and record oﬁice of seamen.
17 85 18 Vict. c. 104. s. 2'71.
252, 253, Register of seamen; lists of crew. 17 85 18 Vict. c. 104.
ss. 272 273, 274, 275.
254, Return of births and deaths in British ships. 17 85 18 Vict.
c. 104. s. 273 (8) (9); Registration of births and deaths at sea, 37 85 38
Vict. c. 88. s. 37. l
1894.] 57 a 58 VICT. 5. 60.—COL. APPLICATION. 9447
255, Return as to list of crew in case of transfer or loss of ship.
17 85 18 Vict. c. 104. s. 276. See also 36 85 37 Vict. c. 85. s. 22.
256, Transmission of documents to registrar by superintendents and
other officers. 17 8t 18 Vict. c. 104. s. 277.
257, Whenever a ship, in whatever part of Her Majesty’s do-
minions it is registered (except a passenger ship), arrives at a port in a
British possession, or at a port elsewhere at which there is a British
consular officer, and remains thereat for 48 hours, the master shall,
within 48 hours of the ship’s arrival, deliver to the chief officer of customs
or British consular otﬁcer the agreement with the crew, 850., or if the ship
is registered in a British possession such of these documents as the ship
is provided with, which are to be returned to the master on departure of
the ship with an endorsement of the time when delivered and returned,
and if it appears the laws have been transgressed the oﬁicer is to
make an endorsement to that eﬁect, and transmita copy to the Registrar-
General of Shipping and Seamen. 17 85 18 Vict. c. 104. 279.
V 258, If a master is removed or superseded during the progress of a
voyage he is to deliver to his successor the various documents relating
to the navigation of the ship and crew. 17 8t 18 Vict. c. 104. s. 259.
259, Corporations, 850., may grant sites for sailors’ homes. 17 85 18
Vict. c. 546.
260, 261 provided that Part 2 of the Act shall apply to ships
registered in the United Kingdom and elsewhere. 17 82 1.8 Vict. c. 104.
s. 109.
262, 263, Partial application of Part 2 to ships of lighthouse
authorities and pleasure yachts, and to ﬁshing boats.
264:, If the legislature of a British possession by any law apply or
adapt to any British ship registered at, trading with, or being at any port
in that possession, and to the owners, masters, and crews of those ships,
any provisions of this part of this Act which do not otherwise so apply,
‘such law shall have effect throughout Her Majesty’s dominions, and in
all places where Her Majesty has jurisdiction, in the same manner as if
it were enacted in this Act. 17 & 18 Vict. c. 104. s. 288.
265, Where in any matter relating to a ship or to a person belonging
to a ship there appears to be a conﬂict of laws, then, if there is in this
part of this Act any provision on the subject which is hereby expressly
made to extend to that ship, the case shall be governed by that provi-
sion, but if there is no such provision the case shall be O'overned by the
law of the port at which the ship is registered. 17 & 18 Vict, C, 10.1,
8.290.
266, Unregistered British ship deemed to be registered in the
United Kingdom for Part 2 purposes. 46 85 47 Vict. c. 41. s. 49.
PART 3 (secs. 267 to 368) accords with Parts 3 and 4 of 17 8:.
18 Vict. c. 104. and 18 85 19 Vict. c. 119. And secs. 365 and 366
show how far the Act is or may be applied to the colonies; and
sec. 735 how far this part of the Act may be repealed by the same,
267 gives the deﬁnition of “passenger ” and “ passenger steamer.”
18 8c 19 Vict. c. 119. s. 3; 26 8c 27 Vict. c. 51. s. 3; 52 85 53 Vict.
c. 29. s. 2.
Application of
Part 2 to
colony by
colonial
legislature.
Conﬂict of laws.
302
94,8 57 a 58 “VICT. c. 60.—COL. CERTIFICATES. [1894.
Deﬁnition of
colonial voyage.
Colonial certi-
ﬁcates for
passenger
steamers.
268 gives the meaning of “ emigrant ship ”; e.g., if it carry more than
50 steerage passengers or a greater number of steerage passengers than in
the proportion, if a sailing vessel, of one adult to 33 tons of ship’s registered
tonnage: if a steamship, one adult to every 20 tons. And “emigrant
ship ” includes a ship which, having proceeded from a port outside the
British Islands, takes on board at any port in the British Islands such
number of steerage passengers, whether British subjects or aliens
resident in the British Islands, as would with or without the steerage
passengers she has already on board constitute her an emigrant ship.
The section then set out how to distinguish “cabin” from' “steerage”
passenger. 26 8027 Vict. c. 51. s. 3; 18 & 19 Vict. c. 119. s. 3.
269, The scale for determining length of voyage may be one of
the Board of Trade’s scales. 18 85 19 Vict. c. 119. s. 30.
2'10, For the purposes of this part of the Act a colonial voyage
means a voyage from any port in a British possession, other than British
India and Hong Kong, to any port whatever, where the distance between
such ports exceeds four hundred miles, or the duration of the voyage, as
determined under this Part of this Act, exceeds three days. 18 & 19 Vict.
c.119.s.95.
2'11, An annual survey of passenger steamers which carried more
than 12 passengers was provided for. 18 8t 19 Vict. c. 119. s. 19.
2'12, 2'13 give the mode of survey and declaration of survey,
and transmission of declaration, &c. 17 & 18 Vict. c. 104. ss. 309, 310.
2'14, Issue of passenger steamer’s certiﬁcate. 17 & 18 Vict. c 104.
s. 312.
2'15 gives an appeal to a court of survey if any owner of a steamer
feels himself aggrieved by a survey by a shipwright or engineer surveyor.
39 8t 40 Vict. c. 80. s. 14
2'16 deals with transmission by Board of Trade of certiﬁcate in
duplicate to the port of the owner or where the steamer .is lying.
17 8t 18 Vict. c. 104. s. 313.
27'], 2'18 deal with fees for certiﬁcate and duration of certiﬁcate.
17 & 18 Vict. c. 104. s. 314, 315.
279-281, Cancellation, delivery, and posting up of certiﬁcate.
17 & l8 Vict. c. 104. s. 316.
282, Penalty for forgery of certiﬁcate.
s. 320.
283, Penalty on carrying passengers in excess of number allowed
by certiﬁcate. 17 & 18 Vict. c. 104. s. 319.
17 & 18 Vict. c. 104.
284, Where the legislature of any British possession provides for the
survey of, and grant of certiﬁcates for, passenger steamers, and the Board of
Trade report to Her Majesty the Queen that they are satisﬁed that the
certiﬁcates are to the like eifect and are granted after a like survey, and in
such manner as to be equally eﬁicient with the certiﬁcates granted for the
same purpose in the U.K. under this Act, Her Majesty in Council may :—
(1) declare that the certiﬁcates granted in the said British possession
shall be of the same force as if granted under this Act; and (2)
declare that all or any of the provisions of this part of this Act which
relate to passenger steamers’ certiﬁcates shall, either without modiﬁcation
or with such modiﬁcations as to Her Majesty may seem necessary,
1894.] 57 85 58 VICT. c. 60.—EMIGRANT SHIP. 94:9
apply to the certiﬁcates granted in the said British possession; and (3)
impose such conditions and make such regulations with respect to the
certiﬁcates and to the use, delivery, and cancellation thereof as to Her
Majesty may seem ﬁt, and impose ﬁnes not exceeding 501. for the breach
of those conditions and regulations. 39 85 40 Vict. c. 80. s. 17.
285 deals with equipment of passenger steamers; that they should
have compasses properly adjusted, hose, deck shelters, and safety valve on
each boiler out of the control of the engineer when steam is up. The
penalty for not having these things may be 1001. 17 85 18 Vict. c. 104.
301.
286 prohibited increasing the weight on the safety valve beyond the
limits ﬁxed by the surveyor. See s. 433. 17 85 18 Vict. c. 104. s. 302.
287 dealt with good behaviour of passengers on board and payment
of fares.
288, The master may exclude drunken or bad-mannered passengers
on home-bound steamers. 25 & 26 Vict. c. 63. ss. 35, 37.
3. EMIGRANT SHIPS.
Survey ofEmz'grant Ships.
[See secs. 365, 366. That this Part applies to the colonies]
289,-“ An emigrant ship, in respect of which a passenger
steamer’s certiﬁcate is not in force, shall not clear outwards or proceed
to sea 011 any voyage unless she has been surveyed under the direction of
the emigration officer at the port of clearance, but at the expense of the
owner or charterer thereof, by two or more competent surveyors to be
appointed at any ‘port in the British Islands where there is an emigration
officer by the Board of Trade, and at other ports by the Commissioners
of Customs, and has been reported by such surveyors to be in their
opinion seaworthy and ﬁt for her intended voyage.
“ The survey shall be made before any portion of the cargo is taken
on board, except so much as may be necessary for ballasting the ship, and
such portion of cargo if laden on board shall be shifted, if required by
the emigration oﬁicer or the surveyors, so as to expose to view succes-
sively every part of the frame of the ship.
“ If any such surveyors report that the ship is not seaworthy, or
not ﬁt for her intended voyage, the owner or charterer may, if he thinks
ﬁt, by writing under his hand require the emigration ofﬁcer to appoint
three other competent surveyors (of whom two at least must be ship-
Wrights) to survey the ship at the expense of the owner or charterer, and
the said officer shall thereupon appoint such surveyors, and they shall
survey the ship; and if by unanimous report under their hands, but not
otherwise, they declare the ship to be seaworthy and ﬁt for her intended
voyage, the ship shall for the purposes of this Part of the Act be deemed
seaworthy and ﬁt for that voyage.
“ If any requirement of this section is not complied with in the
case of any emigrant ship, the owner, charterer, or master of the ship or
any of them shall for each offence be liable to a ﬁne not exceeding one
hundred pounds.” 18 & 19 Vict. c. 119. s. 19.
Preliminary
survey of
emigrant ships.
950 57 a 58 V10T.e.60.—NEOESSARY FURNISHINGS. [1894.
Equipments.
Equipment 290,—“ (1) Every emigrant ship shall, in addition to any other
Wlth com“ requirement under this Act, be provided with the following articles;
passes, chrono— n‘lmel , __
meters, ﬁre ‘ ‘(i ’ T. . .
engine (55.) V1 1th at least three steering compasses, and one azimuth
anchors, &c. compass; and
“ If proceeding to any place north of the Equator, with at least
one chronometer; and
“ c.) If proceeding to any place south of the Equator, with at least
two chronometers; and
“ With a ﬁre-engine in proper working order and of such
description and power, and either with or without such
other apparatus for extinguishing ﬁre as the emigration
oﬁicer may approve; and
“ \Vith three bower anchors of such weight, and with cables of
such length, size, and material, as in the judgment of the
emigration officer are sufficient for the size of the ship;
and
“ ( f.) If a foreign ship, with four properly ﬁtted lifebuoys kept ready
at all times for immediate use; and
“ Adequate means, to be approved by the emigration otlicer at
the port of clearance, of making signals by night.
“ (2.) If any requirement of this section is not complied with in the
case of any emigrant ship, the master of that ship shall for each offence
be liable to a ﬁne not exceeding ﬁfty pounds.” 18 & l9 Vict. c. 119.
s. 27; 39 85 40 Vict. c. 80. 21.
Zvumbcr of, and Accommodation for, Passengers.
(See sec. 365.)
Regulations as 291,-“ A ship shall not carry passengers, whether cabin or
to Carrying of steerage passengers, on more than two decks, except that cabin pas~
sengers not exceeding one for every hundred tons of the ship’s registered
g n y‘ tonnage, and sick persons placed in hospital as hereinafter provided, may
be carried in a poop or deck-house, although passengers are carried on
two other decks.
“ If steerage passengers are carried under the poop, or in a round-
house, or deck-house, the poop, round-house, or deck-house shall be pro-
perly built and secured to the satisfaction of the emigration officer at the
port of clearance.
“(3.) If any requirement of this section is not complied with in the
case of any ship, the master of the ship shall for each offence be liable to
a ﬁne not exceeding ﬁve hundred pounds. 18 and 19 Vict. c. 119. s. 13.
Limit Of 292,--“ (1.) The number of steerage passengers carried in an emi-
number of grant ship shall not exceed the number limited by the regulations in the
steerage Pas‘ Tenth Schedule to this Act. [Same as in sec. and Act given below]
sengers to be
cmied on “ If there is on board any emigrant ship at or after the time of
emigrant Ships_ clearance a greater number of steerage passengers than the number so
limited (except as increased by births at sea), the master of the ship shall
be liable to a ﬁne not exceeding twenty pounds for each steerage pas-
senger constituting such excess.” 18 85 19 Vict. c. 119. s. 14.
Regulations as 293,—‘f The regulations to the accommodation for steerage
to accommoda- passengers in the Eleventh Schedule to this Act, relating to the construc-
1894.] 57 a 58 vioT. c. 60.—BERTHS a HOSPITALS. 951
tion of passenger decks, to berths, to hospitals, to privies, and t0 the tion Of steerage
Supply of light and ventilation, shall be observed in the case of all Passengers-
emigrant ships as if they were contained in this section.
“ If any requirement of this section is not complied with in the
case of any emigrant ship, the owner, charterer, or master of the ship,
or any of them, shall for each offence be liable to a ﬁne not exceeding
ﬁfty pounds, except that the master shall alone be liable to the ﬁne where
he is in any such regulation expressed to be alone liable.” 18 85 19 Vict.
c. 119. ss. 20 to 26. [From which the Eleventh Schedule is taken.)
294,-“ No part of the cargo or of the steerage passengers Stowage of
uggage, or of the provisions, water, or stores, whether for the use of goods-
the steerage passengers or of the crew, shall be carried on the upper
deck, or on the passenger decks, unless in the opinion of the emigra-
tion ofﬁcer at the port of clearance the same is so placed as not to
nnpede light or ventilation or to interfere with the comfort of the
steerage passengers, nor unless the same is stowed and secured to the
satisfaction of the emigration ofﬁcer; and the space thereby occupied or
rendered in the opinion of such oﬂicer unavailable for the accommoda-
tion of the steerage passengers, shall (unless occupied by the said steerage
passengers luggage) be deducted in calculating the space by which the
number of steerage passengers is regulated.
“ If any requirement of this section is not complied with in the
case of any emigrant ship, the owner, charterer, or master, or any of
them, shall for each offence be liable to a ﬁne not exceeding three
hundred pounds.” 18 & 19 Vict. c. 119. s. 29.
Provisions, I/Vater, and Zlfedical Stores.
[See sec. 365 (3).]
295,—“ T here shall be placed on board every emigrant ship, for Supply of
the steerage passengers, provisions and water of good and wholesome Provisions and
quality and in sweet and good condition, and in quantities suﬂicient to Water‘
secure throughout the voyage the issues required by this Part of this Act.
“ In addition to the allowance of pure water for each steerage
passenger, water shall be shipped for cooking purposes suﬂicient to
supply ten gallons for every day of the length of the voyage as deter-
mined undcr this Part of this Act for every one hundred statute adults
on board.
“ There shall also be shipped for the use of the crew and all other
persons on board an ample amount of wholesome provisions and pure
water, not inferior in quality to the provisions and water provided for the
steerage passengers.
“ (4.) All such water and provisions shall be provided and stowed away
by and at the expense of the owner, charterer, or master of the ship.
“ If any emigrant ship obtains a clearance without being provided
with the requisite quantities of water and provisions in accordance with
this section, the owner, charterer, or master of that ship, or any of
them, shall for each offence be liable to a ﬁne not exceeding three
hundred pounds.
“ Before an emigrant ship is cleared outwards, the emigration
oﬁicer at the port of clearance shall survey or cause to be surveyed by
some competent person the provisions and water by this Act required to
be placed on board for the steerage passengers, and shall satisfy himself
that the same are of good and wholesome quality and in sweet and good
condition, and in the quantities required by this Act. . .
952 57 a 58 vIoT. c. 60.—WATER ON EMIG. SHIPS. [1s94
Mode of
carrying water.
Provision for
touching at
intermediate
ports to take
in water.
Issue of water
or provisions
during voyage.
“ (7 If the emigration officer considers that any part of the provisions
or water is not of a good and Wholesome quality, or is not in sweet and
good condition, he may reject and mark the same, or the packages
or vessels in which it is contained, and direct the same to be forthwith
landed or emptied.
“ If the same are not forthwith landed or emptied, or if after being
landed the same or any part thereof are reshipped in the ship, the
owner, charterer, or master of the ship or any of them, or, if the
same are shipped in any other emigrant ship, then the person causing
the same to be so shipped, shall for each oﬁence be liable to a ﬁne not
exceeding one hundred pounds.” 18 & l9 Vict. c. 119. ss. 31, 32.
296,—-“ (l The water to be placed on board emigrant ships as herein-
before provided shall be carried in tanks or casks approved by the
emigration officer at the port of clearance, and the casks shall be sweet
and tight, of sufficient strength, and if of wood properly charred inside,
and the staves shall not be made of ﬁr, pine, or soft wood, and each
cask shall not be capable of containing more than three hundred gallons.
“ If any requirement of this section is not complied with in the
case of any emigrant ship, the owner, charterer, or master of the ship,
or any of them, shall for each offence be liable to a ﬁne not exceeding
ﬁfty pounds.”
297, “ If an emigrant ship is intended to call at any intermediate port
during the voyage for the purpose of taking in water, and if an engage-
ment to that effect is inserted in the master’s bond herein-after men-
tioned, it shall be sufficient to place on board at the port of clearance
such supply of water as is required by this Part of this Act for the
voyage to the intermediate port, subject to the following conditions;
(that is to say,)
“ (i.) The emigration oﬁicer at the port of clearance shall approve in
writing the arrangement, and the approval shall be carried
among the ship’s papers, and shall be exhibited at the
intermediate port, and delivered on the arrival of the ship
at her ﬁnal port of discharge to the chief oﬂicer of customs,
or British consular officer, as the case may be :
“(ii.) If the length of either portion of the voyage, whether to
the intermediate port, or from the intermediate port to the
ﬁnal port of discharge, is not determined under this Part
of this Act, the emigration officer at the port of clearance
shall declare the same in writing, as part of his said ap~
proval of the arrangement
“ (iii.) The ship shall have on board at the time of clearance such
tanks and water casks, of the description by this Part of
this Act required, as are sufficient for stowing the quantity
of water required for the longest of the aforesaid portions
of the voyage.” l8 & l9 Vict. c. 119. s. 34.
298,-“ The master of every emigrant ship shall during the
voyage, including the time of detention at any place before the termina-
tion thereof, issue to each steerage passenger, or Where the steerage pas-
sengers are divided into messes, to the head man for the time being of each
mess, on behalf and for the use of all the members thereof, an allowance of
pure water [3 quarts daily], and sweet and wholesome provisions [See
sec. 365 of good quality, in accordance with the dietary scales in the
Twelfth Schedule to this Act [taken from sec. quoted below], which shall
have eifect as if they were contained in this section.
1894.] 57 a 58 vIeT. c. 60.—~DIETARY seALE. 953
“ The Board of Trade may, by notice published in the London
Gazette, add to the dietary scales in the said schedule any dietary scale
which in their opinion contains in the whole the same amount of
wholesome nutriment as any scale in that schedule, and any dietary scale
so added, inclusive of any regulations relating thereto, shall have effect
as if they were contained in the said schedule as an alternative of the
dietary scales therein contained, and accordingly a master of a ship may
issue provisions according to the latter scales or to any scale so added,
Whichever is mentioned in the contract ticket of the steerage passengers.
“ If any requirement of this section is not complied with in the
case of any emigrant ship the master of the ship shall for each offence be
liable to a ﬁne not exceeding ﬁfty pounds.” 18 85 19 Vict. c. 119. s.
299, “ The Board of Trade, if satisﬁed that the food, space, accommo-
dation, or any other particular or thing provided in an emigrant ship for
any class of passengers,‘whether cabin or steerage, is superior to the food,
space, accommodation, or other particular or thing required by this Part
of this Act, may exempt that ship from any requirement of this Part of
this Act with respect to food, space, or accommodation, or other par-
ticular or thing, in such manner and upon such conditions as the Board
think ﬁt ”
3()(),-~“ (1.) The owner or charterer of every emigrant ship shall
provide for the use of the steerage passengers a supply of the following
things (in this Part of this Act referred to as medical stores), namely,
medicines, medical comforts, instruments disinfectants, and other things
proper and necessary for diseases and accidents incident to sea voyages
and for the medical treatment of the steerage passengers during the
voyage, with written directions for the use of such medical stores.
“ The medical stores shall, in the judgment of the emigration
officer at the port of clearance, be good in quality and suﬁicient in
quantity for the probable exigencies of the intended voyage, and shall be
properly packed, and placed under the charge of a the medical practitioner,
when there is one on board, to be used at his discretion.
“ If any of the above requirements of this section is not complied
with in the case of an emigrant ship, the master of the ship shall for each
offence be liable to a ﬁne not exceeding ﬁfty pounds.
“ An emigrant ship shall not clear outwards or proceed to sea
unless a medical practitioner appointed by the emigration officer at the
port of clearance has inspected the said medical stores, and certiﬁed to
the emigration oﬁicer that they are sufficient in quantity and quality, or
unless the emigration officer, in case he cannot on any particular occasion
obtain the attendance of a medical practitioner, gives written permission
for the purpose.
“ If an emigrant ship clears outwards or proceeds to sea without
such certiﬁcate or permission, the master of the ship shall for each
offence be liable to a ﬁne not exceeding one hundred pounds.” 18 85 19
Vict. c. 119. ss. 43, 44.
Dangerous Goods, and Carriage of Cattle.
301,—“ Subject to the provisions of this Part of this Act as to
military stores, an emigrant ship shall not clear outwards or proceed to
sea, ifthere is on board-
“ as cargo, any article which is an explosive within the meaning
of the Explosives Act, 187 5, or any vitriol, lucifer matches,
guano, or green hides, or
Power of Board
of Trade to
exempt ships.
Medical stores.
Regulations as
to carriage of
dangerous
goods, and of
horses and
cattle.
38 85 39 Vict.
c. 17.
9541 57 a 58 VICT. c. 60.—MEDICAL OFFICER. [1894.
Carriage of
military stores.
Medical
practitioners.
“ (b) either cargo or ballast, any article or number of articles
which by reason of the nature, quantity, or mode of stow-
age thereof are, either singly or collectively, in the opinion
of the emigration ofﬁcer at the port of clearance, likely to
endanger the health or lives of the steerage passengers or
the safety of the ship, or
“ (c) as cargo, horses or cattle or other animals mentioned in the
Thirteenth Schedule to this Act, except they are carried
on the conditions stated in that schedule, Which shall have
effect as if contained in this section.
“ If any requirement of this section is not complied with in the
case of any ship, the owner, charterer, or master of the ship or any of
them, shall for each offence be liable to a ﬁne not exceeding three
hundred pounds.” See 17 & 18 Vict. c. 104. s. 329 ;. 38 &7 39 c. 17.
302,-“ (1.) A Secretary of State may, by order under his hand,
authorize the carriage as cargo in any emigrant ship (subject to such
conditions and directions as may be speciﬁed in the order) of naval
and military stores for the public service, and those stores may be carried
accordingly.
“ The order shall be addressed to the emigration ofﬁcer and shall
be by him countersigned, and delivered to the master of the ship to which
it refers, and shall be delivered up by the master to the chief oﬁicer of
customs at the port where the stores are discharged.
“ The master shall comply with all the conditions and directions
in the order, and, if he fails to do so, shall for each offence be liable to a
ﬁne not exceeding three hundred pounds.” 33 & 34; Vict. c. 95. s. 3.
Medical Oﬂicer, Staﬂ‘, and Crew.
[See sec. 365.}
303,-“ Subject to any regulations made by Order in Council
under this Part of this Act, a duly authorized medical practitioner shall
be carried on board an emigrant ship-—
“ (a) where the number of steerage passengers on board exceeds
ﬁfty ; and also
“(11) Where the number of persons on board (including cabin pas-
sengers, officers, and crew) exceeds three hundred.
“ ( 2.) A medical practitioner shall not be considered to be duly autho-
rized for the purposes of this Act unless—-
“ (a) he is authorized by law to practise as a legally qualiﬁed medical
practitioner in some part of Her Majesty’s dominions, or,
in the case of a foreign ship, in the country to which that
ship belongs : and
“ (1;) his name has been notiﬁed to the emigration oﬁicer at the port
of clearance, and has not been objected to by him : and
“ (0) he is provided with proper surgical instruments to the satisfac-
tion of that oﬁicer.
“ When the majority of the steerage passengers in any emigrant
ship, or as many as three hundred of them, are foreigners, any medical
practitioner whether authorized or not may, if approved by the emigra-
tion officer, be carried therein.
“ (4.) Where a medical practitioner is carried on board an emigrant
' ship he shall be rated on the ship’s articles.
1894.] 57 a 58 VICT. 5. su-s'rnwanns AND onnw. 955
“ If any requirement of this section is not complied with in the
case of any emigrant ship, the master of the ship shall for each oifence
be liable to a ﬁne not exceeding one hundred pounds.
“ (6.) If any person proceeds or attempts to proceed as medical
practitioner in any emigrant ship without being duly authorized, or
contrary to the requirements of this section, that person and any person
aiding and abetting him shall for each oifence be liable to a ﬁne not
exceeding one hundred pounds.” 18 85 19 Vict c. 119. ss. 41, 42.
304,—“ (1.) Every emigrant ship, if carrying as many as one
hundred steerage passengers, shall carry a steerage steward, who shall be
a seafaring man, and rated in the ship’s articles as steerage steward, and
approved by the emigration officer at the port of clearance : he shall be
employed in messing and serving out the provisions to the steerage
passengers, and in assisting to maintain cleanliness, order, and good
discipline among them, and shall not assist in any way in navigating or
working the ship.
“ Every emigrant ship carrying as many as one hundred steerage
passengers shall also carry a steerage cook, and if carrying more than
three hundred statute adults two steerage cooks, who shall be seafaring
men, and be rated and approved as in the case of steerage stewards, and
shall. be employed in cooking the food of the steerage passengers.
“ In every such ship a convenient place for cooking shall be set
apart on deck, and a sufficient cooking apparatus, properly covered in and
arranged, shall be provided, to the satisfaction of the emigration officer
at the port of clearance, together with a proper supply of fuel adequate,
in his opinion, for the intended voyage.
“ Every foreign emigrant ship in which as many as one half of
the steerage passengers are British subjects, shall, unless the master and
oﬁicers or not less than three of them understand and speak intelligibly
the English language, carry, if the number of steerage passengers does
not exceed two hundred and ﬁfty, one person, and if it exceeds two
hundred and ﬁfty, two persons, who understand and speak intelligibly
the language spoken by the master and crew and also the English
language : those persons shall act as interpreters, and be employed
exclusively in attendance on the steerage passengers, and not in working
the ship; and any such ship shall not clear outwards or proceed to sea
without having such interpreter on board.
“ If any requirement of this section is not complied with in the
case of any emigrant ship, the master of the ship shall for each offence
be liable to a ﬁne not exceeding ﬁfty pounds.” 18 85 19 Vict. c. 119.
ss. 38, 39, 40.
305,——“ Every emigrant ship shall be manned with an eﬁicient
crew for her intended voyage, to the satisfaction of the emigration officer
from whom a certiﬁcate for clearance for such ship is demanded: after
the crew have been passed by the emigration officer, the strength of the
crew shall not be diminished nor any of the men changed without the
consent in writing either of that emigration oﬂicer or of the superinten-
dent at the port of clearance.
“ Where the consent of a superintendent has been obtained, it
shall, within twenty-four hours thereafter, be lodged with the said
emigration oﬂicer.
“ If the emigration oﬁicer considers the crew ineﬂicient, the owner
or charterer of the ship may appeal in writing to the Board of Trade,
and the Board shall, at the expense of the appellant, appoint two other
emigration oﬁicers or two competent persons to examine into the matter,
steerage
passen gers
stewards,
cooks, and
interpreters.
Crew of
emigrant ship.
956 57 & 58 VICT. c. 60.—INSPECTION BY DOCTOR. [1894.
Medical in-
spection of
steerage pas-
sengers and
crew.
E vidence of
bond.
and the unanimous opinion of the person so appointed, expressed under
their hands, shall be conclusive on the point. a
“ (4.) If any requirement of this section is not complied with in the
case of any emigrant ship, the master of that ship shall for each offence
be liable to a ﬁne not exceeding ﬁfty pounds.” 18 & l9 Vict. c. 119.
s. 28.
Zlfedz'cal Inspection.
[See see. 365.]
306,—“ An emigrant ship shall not clear outwards or proceed
to sea until— ‘
“ (at) either a medical practitioner, appointed by the emigration
ofﬁcer at the port of clearance, has inspected all the steerage
passengers and crew about to proceed in the ship, and
has certiﬁed to the emigration officer, and that oﬁicer is
satisﬁed, that none of the steerage passengers or crew
appear to be by reason of any bodily or mental disease
unﬁt to proceed, or likely to endanger the health or safety
of the other persons about to proceed in the ship; or
“ (b) the emigration oﬁicer, if he cannot on any particular occasion
obtain the attendance of a medical practitioner, grants
written permission for the purpose.
“ The inspection shall take place either on board the ship, or,
in the discretion of the emigration ofﬁcer, at such convenient place
on shore before embarkation, as he appoints, and the master, owner,
or charterer of the ship shall pay to the emigration ofﬁcer in respect
of the inspection such fee not exceeding twenty shillings for every
hundred persons or fraction of a hundred persons inspected, as the
Board of Trade determine.
“ If this section is not complied with in the case of any
emigrant ship, the master of the ship shall for each offence be liable
to a ﬁne not exceeding one hundred pounds.” 18 & 19 Vict. c. 119. s. 44.
307, Persons for medical reasons may be relanded. l8 & l9 Vict.
c. 119. ss. 45, 47.
308, Passage money to persons relanded for medical reasons may
be returned. 18 & 19 Vict. c. 119. s. 46; 26 8t 27 Vict. c. 51. s. 11.
309, Before an emigrant ship clears outwards or proceeds to sea,
the master, together with the owner or charterer, shall enter into a
joint and several bond (in the Act referred to as the master’s bond)
in the sum of two thousand pounds (ﬁve thousand if non-resident in the
British Islands) to the Crown, to safeguard the Crown from any expenses
in rescuing ships wrecked or distressed steerage passengers. 18 8t 19
Vict. c. 119. s. 63; 26 & 27 Vict. c. 51. s. 17.
310, \Vhere an emigrant ship is bound to a British possession the
chief ofﬁcer of customs at the port of clearance shall certify on one
part of the master’s bond that it has been duly executed, and shall for-
ward the same to the Governor of the said possession, and the certiﬁcate
shall, in any court of a British possession in which the bond may be
put in suit, be ‘conclusive evidence of the due execution of the bond;
but any such bond shall not be put in suit in a British possession after
the expiration of three months next after the arrival of the ship in that
possession, nor in the British Islands after the expiration of twelve
months next after the return of the ship. 18 & 19 Vict. c. 119. s. 64.
1894.] 57 a 58 vicr. 5. 60.—PUTTING BACK. 957
311, Passengers lists are to be made out before clearance. 18 85 19
Vict. c. 119. s. 16.
312, Lists of additional passengers embarked aft-er clearance are to
be made out. 18 85 19 Vict. c. 119. s. 17.
313, A penalty of 201. was imposed on anyone attempting to gain
a passage without payment, and any such person may be taken before a
justice. 18 85 19 Vict. c. 119. s. 18.
Certiﬁcate for Clearance.
314, A ship ﬁtted or intended for the carriage of steerage passen-
gers as an emigrant ship shall not clear outwards or proceed to sea
until the master has obtained from the emigration officer at the port
of clearance a certiﬁcate that all the requirements of this Part of the
Act have been complied with. And if refused such certiﬁcate the
owner or charterer may appeal to the Board of Trade. 18 85 19 Vict.
c. 119. S. 11.
315,—“ The master of every ship, whether an emigrant ship or
not, which is ﬁtting or intended for the carriage of steerage passengers, or
which carries steerage passengers on a voyage from the British Islands
to any port out of Europe and not within the Mediterranean Sea, or on
a colonial voyage as herein-before deﬁned, shall afford to the emigration
oﬁicer at any port in Her Majesty’s dominions, and, in the case of
British ships, to the British consular oﬁicer at any port elsewhere at
which the ship is or arrives, every facility for inspecting the ship and
for communicating with the steerage passengers and for ascertaining
that this part of this Act, so far as applicable to the ship, has been duly
complied with.
“ (2) If the master of any ship fails to comply with this section, he
shall for each offence be liable to a ﬁne not exceeding ﬁfty pounds.” 18
85 19 Vict. c. 119. s. 10.
316, If an emigrant ship, after clearance, is detained in port for
more than seven days, or puts into any port in the British Islands, she
shall not proceed to sea until she obtains a fresh supply of pure water,
850., to make up the quantity required by the Act to be on board.
18 85 19 Vict. c. 119. s. 50.
317, Any emigrant ship putting back after clearance is to report the
fact; and cause, in writing, within twelve hours to the emigration officer
of the port. 18 85 19 Vict. c. 119. s. 50.
318,—-“ If the owner of an emigrant ship is aggrieved by the
refusal by an emigration ofﬁcer of a certiﬁcatefor clearance, he ma
appeal to a court of survey for the port or dlstrict where the ship for
the time being is in manner directed by the rules of that court.
“ The judge of the court of survey shall report to the Board of
Trade on the question raised by the appeal, and that Board, if satisﬁed
that the requirements of the report and of this Part of this Act have
been complied with, may grant or direct the emigration officer to grant
a certiﬁcate for clearance.
“ Subject to any order made by the judge of the court of survey,
the costs of and incidental to the appeal shall follow the event.
“ Where a survey of a ship is made for the purpose of a certi-
ﬁcate for clearance, the person so appointed to make the survey shall, if
so required by the owner, be accompanied on the survey by some person
appointed by the owner, and in such case if the said two persons agree
Facilities to
be given for
the inspection
of ships.
Appeal to
court of
survey.
958 57a 58 VICT. c. 60.—STEERAGE 0. IN 0. [1894.
Discipline on
board.
Sale of spirits
prohibited on
emigrant
ships.
there shall be no appeal to the court of survey in pursuance of ‘this sec—
tion. 39 &40 Vict. c. 80. s. 14.
319,-(1) If any emigrant ship proceed to sea without the certiﬁcate
for clearance; or (6) put into port damaged, and leave with steerage
passengers without a proper certiﬁcate, the ship may be forfeited if found
within two years.
(2) The Board of Trade may release such forfeited ship on payment
of not more than two thousand pounds. 26 & 2'7 Vict. c. 51. s. 13.
320, Contract tickets for passengers proceeding from the British
Islands are to be in the form approved by the Board of Trade. 18 19
Vict. c. 119. s. 71.
321 gives a summary remedy for breach of any stipulation in a
contract ticket. 18 85 19 Vict. c. 119. s. 73.
322 imposed a penalty for failure to produce contract ticket. 18 &3 19
Vict. c. 119. s. '74.
323, Penalty for altering or rendering useless a contract ticket which
is evidence. 18 & 19 Vict. c. 119. 72.
Regulations as to Steeragc Passengers.
[See sec. 365 (1)
324: gave power to Her Majesty by Orders in Council to make
regulations for preserving order, promoting health, &c., on board
emigrant ships proceeding from the British Islands to any port in a
British possession; forbidding emigration during cholera or any epidemic
disease; reducing the number of steerage passengers allowed; and per-
mitting the use on board of water-distilling apparatus. 18 81; 19 Vict.
c.119.s.59.
325,--“ In every emigrant ship the medical practitioner aided by
the master or, in the absence of the medical practitioner, the master,
shall exact obedience to all regulations made by any such Order in
Council as aforesaid.
“ 2.) If any person on board—-
“ (a) fails without reasonable cause to obey, or oﬁends against, any
such regulation or any provision of this Part of this Act, or
“ (b) obstructs the master or medical practitioner in the execution of
any duty imposed upon him by any such regulation, or
“ (a) is guilty of riotous or insubordinate conduct,
that person shall for each oifence be liable to a ﬁne not exceeding two
pounds, and in addition to imprisonment for any period not exceeding
one month.” 18 & 19 Vict. c. 119. s. 60.
326,-“ ( 1.) Spirits shall not during the voyage be sold directly or in-
directly in any emigrant ship to any steerage passenger.
“ If any person acts in contravention of this section, he shall for
each oﬁence be liable to a ﬁne not exceeding twenty pounds.” 18 85 19
Vict. c. 119. s. 62. '
327 provides for maintenance of steerage passengers after arrival of
emigrant ship. [See sec. 365
328 provided for return of passage money and compensation to
passengers when passage not provided according to contract. 18 &1 19
Vict. c. 119. s. 48.
329, Subsistence in case of detention is provided for.
c. 119. s. 49.
18 & 19 Vict.
1894.] 57 & 58 VICT. c. 60.—WBEOKED PASSENGERS.
959
330, A penalty for landing steerage passengers at a wrong place was
imposed. The ﬁne not to be under 10!. or exceeding 501. 18 80 19 Vict.
c.119.s.56.
331, Provisions in case of an emigrant ship being wrecked or damaged
in or near British Islands. 18 & 19 Vict. c. 119. s. 51; 26 2'7 Vict.
c. 51. s. 14.
332, “ If any passenger, whether a cabin or a steerage passenger, is
either taken 05 any ship which is carrying any steerage passenger on a
voyage from any part of Her Majesty’s dominions and is damaged,
wrecked, sunk, or otherwise destroyed, or if any such passenger is picked
up at sea from any boat, raft, or otherwise, it shall be lawful—-
“ (a) if the port to which such passenger (in this Act referred to as a
‘ wrecked passenger ’) is conveyed is in the United King-
dom, for a Secretary of State; and
“ (b) if the port is in a British possession for the Governor of that
possession, or any person authorized by him for the pur-
pose; and
“ (c) if the port is elsewhere, for the British consular oﬁicer there;
to defray all or any part of the expenses thereby incurred.” 18 & 19 Vict.
c.119.s.52.
333,—-“ If any passenger, whether a cabin or a steerage passenger,
from any ship which is carrying any steerage passenger on a voyage
from any port in Her Majesty’s dominions ﬁnds himself without any
neglect or default of his own at any port outside the British Islands other
than the port for which the ship was originally bound, or at which he, or
the Board of Trade, or any public oﬂicer or other person on his behalf,
has contracted that he should land, it shall be lawful—-
“ (a) if the place is in a British possession, for the Governor of that
possession, or any person authorized by the Governor for
the purpose: and -
“ (b) if the place is elsewhere, for the British consular officer there ;
to forward the passenger to his intended destination, unless the master of
the ship within forty-eight hours of the arrival of the passenger gives to
the Governor or consular oilicer, as the case may be, a written under-
taking to forward or convey within six weeks thereafter the passenger
to his original destination, and forwards or conveys him accordingly
within that period.
“ (2.) A passenger so forwarded by or by the authority of a Governor or
a British consular oliicer shall not be entitled under this Part of this Act
to the return of his passage money, or to any compensation for loss of
passage.” 18 8t 19 Vict. c. 119. s. 53; 26 86 27 Vict. c. 51. s. 15.
334,—“ All expenses incurred under this Part of this Act by or
by the authority of a Secretary of State, Governor of a British possession,
or consular officer, in respect of a wrecked passenger, or forwarding of a
passenger to his destination, including the cost of maintaining the
passenger until forwarded to his destination, and of all necessary bedding,
provisions, and stores, shall be a joint and several debt to the Crown
from the owner, charterer, and master of the ship on board of which the
passenger had embarkec .” 26 & 27 Vict. c. 51. s. 16.
And (2) in any proceeding for the recovery of that debt a certiﬁcate
purporting to be _under the hand of a Secretar of State, Governor, or
consular officer, and stating the circumstances 0 the case, and the total
amount of the expenses, is to be sufficient.
335, A policy of assurance effected in respect of any steerage passage
is to be valid.
Expenses of
rescue and
conveyance of
wrecked
passengers.
Forwarding of
passengers by
Governors or
consuls.
Recovery of
expenses in-
curred in _
conveying
wrecked pas-
sengers and
forwarding
passengers.
960 57 a 58 vrer. c. 60.—EMIGRATION orrrceas. [1894.
336—338,—(1.) The master of every ship bringing steerage passengers
from any port not within the Mediterranean Sea is to give in a list of
steerage passengers brought to the British Islands.
339, Births and deaths are to be registered as in Part 2 on non-
British ships. See ante, s. 254.
340, Right of action on contract by steerage passenger was safe-
guarded.
341—346 deal with the granting of licences to passage brokers, &c.
18 & 19 Vict. c. 119. ss. 66, 67.
347, 348 deﬁne emigrant runner: and that he must be licensed;
and be supplied with a badge. 18 &5 l9 Vict. c. 119. s. 75.
349 deals with renewal of emigrant runner’s badge if lost. 18 & l9
Vict. c. 119. s. 79.
350 enacts penalties on persons acting without licence or badge:
using badge not lawfully issued; or employing unlicensed person. 18 & l9
Vict. c. 119. 75.
351 imposes penalties on emigrant runners for certain acts of mis-
conduct. 18 & 19 Vict. c. 119. s. 78.
352, Emigrant runner’s commissions and fees. I bid. 8. 80.
353 deals with frauds inducing any person to engage a steerage passage.
354, Penalty on person falsely assuming to act as agent of the Board
of Trade in connection with assisted emigration.
Emigration Oﬂ‘ieers.
Emigration 355.---“ In the British Islands the Board of Trade, and in a
Oﬁiflel‘s and British possession the Governor of that possession, may appoint and re-
ass'stm'ts- move such emigration officers and assistant emigration officers as seem
necessary for carrying this Part of this Act into execution, under the
direction of the Board or Governor, as the case may be.
“ All powers, functions, and duties to be exercised or performed,
and anything to be done in pursuance of this Part of this Act by, to, or
before an emigration officer, may be exercised, performed, and done by,
to, or before his assistant, or, at any port where there is no emigration
ofﬁcer or assistant, or in their absence, by, to, or before the chief officer
of customs for the time being at such port, and in any such case it shall
be the duty of the chief ofﬁcer of customs to do anything which it is the
duty of the emigration officer or his assistant to do.
“ A person~ lawfully acting as an emigration ofﬁcer under this Act
shall in no case be personally liable for the payment of any money or
costs or otherwise in respect of any contract made, or of any legal pro-
ceedings for anything done, by him in his oﬂicial capacity as an emigra-
tion oﬁicer and on the public service.” 18 8t 19 Vict. c. 119. ss. 7, 8, 9.
Legal Proceedings.
Recovery of 356, “ All ﬁnes and forfeitures under the provisions of this Part of this
ﬁnes. Act (other than the provisions relating to passenger steamers only) shall
be sued for by the following ofﬁcers; (that is to say,) [emigration officer
and chief oﬁicer of customs]
“ (d) In a British possession any person authorized by the Governor of
that possession, or any officer of customs authorized by the
Government department regulating the customs in that
possession.” 18 8t 19 Vict. c. 119. s. 84.
1894.] 57 a 58 VICT. 5. 60.—COLONIAL VOYAGES. 961
357, “ All sums of money made recoverable by this Part of this Act in Recovery of
respect of passage money, subsistence money, damages, compensation, or P385989 and
costs may be sued for and recovered before a court of summary juris- Subs'sytence
diction by any person entitled thereto, or by any of the oﬁicers in the last gleiggii’oiongld
preceding section mentioned on behalf of any one or more of such damages_’
persons, and in any case either by one or several proceedings.”
18 85 19 Vict. c. 119. s. 84.
358 gives protection to person executing the Act.
Supplemental.
359, The owner, in the absence of agreement, shall be ultimately re-
sponsible as between himself and the other persons rendered liable for
non-compliance with this Part of the Act.
360 deals with the forms to be used and rate of fees for survey of
emigrant ships.
361 provides that the Board of Trade shall prepare abstracts of this
Part of the Act to be supplied to the masters of emigrant ships, who are to
place them in a conspicuous place between decks. 18 85 19 Vict. c. 1 19. s. 61.
362 gives effect to byelaws by harbour authorities of any port in the
British Islands from which emigrant ships go. 18 85 19 Vict. c. 119. s. 82.
363 provides for the exemption from survey of foreign passenger
steamer or emigrant ship when the Board of Trade are satisﬁed the pro-
visions of the Act have been substantially complied with by an oﬁicial
foreign survey. 39 85 40 Vict. c. 80. s. 19.
A pplz'oatz'on of Part 3. as regards Emigrant Ships.
364, “The provisions of this Part of this Act respecting emigrant
ships shall apply to all voyages from the British Islands to any port out
of Europe and not within the Mediterranean Sea.”
365.——“ This Part of this Act, so far as the same is applicable, Limited appli-
shall apply to every ship carrying steerage passengers on a colonial cation of Part
voyage as deﬁned by this Part of this Act, provided that the enactments 3'10f to
thereof relating to-— s?) fmm.
4: , yages.
(a) master 8 bond ;
“ (b) steerage passengers contract tickets;
“ (c) Orders in Council regulating emigration from the British
Islands, or prescribing rules for promoting health, clean
liness, order, and ventilation;
“ passage brokers ,-
“ (e) emigrant runners; and
“ ( f) posting of abstracts, and production of a copy of this Part of
this Act,
shall not apply. 7
“ Where the duration of a colonial voyage (as determined under
this Part of this Act) is less than three weeks, the enactments relating
to——
“ (a) the regulations scheduled to this Act as to the accommodation
for steerage passengers;
“ (b) medical practitioner, stewards, cooks, cooking apparatus, and
manning with an efficient crew ; and
“ (c) maintenance of steerage passengers after arrival,
shall also not apply.
“ (3.) Where the duration of a colonial voyage (as determined under this
Part of this Act) is less than three Weeks, the enactments relating to
s 2340. 3 P
962 57 a 58 VICT. c. 60.—BEGS. BY GOVERNOR, [1894.
Modiﬁcation of
provisions of
Part 3. in
their applica—
tion to British
possessions.
the issue of provisions shall not, except as to the issue of water, apply to
any steerage passenger who has contracted to furnish his own provisions.”
18 & 19 Vict. c. 119. s. 96.
366,-—“ The Governor of a British possession may by proclama-
tion—
“ (a) determine what shall be deemed, for the purposes of this Part of
this Act, to be the length of the voyage of any ship carry-
ing steerage passengers from any port in that British pos-
session to any other port; and
“ ((2) ﬁx dietary scales for steerage passengers during the voyage ; and
“ (c) declare what medical stores shall be deemed necessary for the
medical treatment of the steerage passengers during the
voyage.
“ Every such proclamation shall take eﬁect from the issue thereof,
and Shall have effect without as well as within the possession, as if
enacted in this Bart of this Act.
“ (3.) The Governor of a British possession may authorize such persons
as he thinks ﬁt to make a like survey of emigrant ships sailing from that
possession as is by this Act required to be made by two or more com-
petent surveyors in the case of emigrant ships sailing from the British
Islands.
“ The Governor of a British possession may authorize any competent
person to act as medical practitioner on board an emigrant ship proceed-
ing on a colonial voyage.” 18 & 19 Vict. c. 119. ss. 97, 98.
367, The ﬁrst part deals with the power of Australian and New Zea-
land governors as to regulations in respect to the numbers of steerage
passengers.
Then (2), “ the Governor of any British possession may, if he thinks ﬁt,
declare by proclamation that ships intended to pass within the Tropics
from any port in such possession may convey steerage passengers, being
natives of Asia or A frica, after the rate of one for every twelve superﬁcial
feet of the passenger deck instead of after the rate speciﬁed in the Tenth
Schedule to this Act.”
(3.) “ Every such proclamation shall take effect from the issue thereof,
or such other day as may be named therein, and shall have effect without
as well as within the possession, as if it were enacted in this Part of this
Act in substitution as respects the said ships for the Tenth Schedule to
this Act.” Sub-sec. (4) refers to steerage passengers from Ceylon.
368 gives power to the legislature of India to apply Part 3. to
British India. 17 80 18 Vict. c. 104. s. 288.
Fishing Boats.
PART 4. is the merging of Merchant Shipping “ Fishing Boats ” Act,
(46 8t 47 Vict. c. 41), and Part 4. of 17 &. 18 Vict. c. 104. By
sec. 372, this Part of the Act is not applicable to the colonies or
Scotland.
369. Application of Part 4:. is—(a) to all ﬁshing boats and
to the whole ﬁshing service; and partly (b) to all ﬁshing boats of
25 tons tonnage and upwards; and partly (c) to ﬁshing boats being
trawlers of the same tonnage and upwards, and where so expressly pro-
vided, to ﬁshing boats being trawlers of whatever tonnage. 46 & 47 Vict.
c. 41. s. 3.
3'10 gives the deﬁnition of “ﬁshing boat,” “second hand,” and
“voyage.” 46 & 47 Vict. c. 41. ss. 3, 18.
1894.] 57 a 58 VICT. c. 60.—SEA-FISHING BOYS. 963
371, Ascertainment of tonnage of a ﬁshing boat. 50 Vict. sess. 2.
c. 4. s. 2.
372, “ This Part of the Act shall not, except where otherwise
expressly provided, apply to Scotland, or to any British possession.”
373-375 refer to registry of : and rules as to ﬁshing boats.
376 deals with discipline of: and offences by seamen and appren-
tices. 46 8t 47 Vict. c. 41. s. 28.
377 enacts that the civil right of remedy by action is to be un-
affected by the criminal provisions of the Act. 46 85 47 Vict. c. 41.
s. 29.
3'18 deals with the application of forfeitures. 46 & 47 Vict. c. 41.
s. 30.
379 enacts deserters and others may be sent back to their boats.
46 8t 47 Vict. c. 41. s. 31.
380, Apprehension of seamen guilty of desertion, absence without
leave, wilful disobedience, continued breach of duty and unlawful com-
bination. 46 & 47 Vict. c. 41. s. 32-.
381, Superintendent or principal Board of Trade oﬁ‘icer can deal
with seamen who refuses to proceed to sea. 46 & 47 Vict. c. 41. 32.
382, A seaman who intends to absent himself is to give notice to
skipper. 46 & 47 Vict. c. 41. s. 33.
383. Wages of skipper, seaman, or apprentice shall accrue from day
to day. 46 & 47 Vict. c. 41. s. 34.
384:, Facilities for proving desertion so far as concerns forfeiture of
wages are given. 46 8.5 47 Vict. c. 41. s. 35.
385, 386, Inquiries as to death, injuries, ill-treatment, punishment,
and casualties in ﬁshing boats are provided for. 46 A’; 47 Vict. c. 41.
secs. 43-45.
387 gives power to superintendent to settle disputes. 46 & 47 Vict.
c. 41. s. 46.
388, Accounts are to be rendered by owners for the purpose of
ascertaining proﬁts of ﬁshing boats. 50 Vict. sess. 2. c. 4. s. 6.
389 deals with agreements for ﬁshing vessels in Scotland.
390’ 391 deal with fees payable on engagement and discharge when
effected before a superintendent: and that superintendents were to obey
the orders of the Board of Trade.
( 2) Provisions applying to all ﬁshing boats of 25 tons tonnage
upwards apprenticeship and agreement with boys.
392, Restriction on apprenticeships and agreement in the case of
boys under 13.. 46 8047 Vict. e. 41. s. '6.
393, Boys under 16 must be properly apprenticed : or to have proper
agreements before being taken to sea. See 46 80 47 Vict. c. 41. s. 8.
394; orders all superintendents to give assistance in making inden-
tures of apprenticeships. 46 8t 47 Vict. c. 41. s. 11.
395, Apprenticeships and agreements with boys to the sea-ﬁshing
service are to be made before superintendent, who is to satisfy himself
that the Act is fulﬁlled: that the master is a ﬁt person: that the boy
is not under 13, is of suﬂicient health, &c., and that the nearest
relations or guardians of the boy assent. 46 8t 47 Vict. c. 41. s. 4.
3P2
964 57 a 58 vIc'r. c. 60.—SKIPPER’S CERTS. [1894.
Collision
regulations.
396, 397 give powers to superintendent in his own name to enforce
by proper legal proceedings sea-ﬁshing boys’ indentures or agreements.
46 85 47 Vict. c. 41. s. 10.
398 prohibits any person from taking money for apprenticeships and
boys’ agreements. 46 85 47 Vict. c. 41. s. 7.
399 deals with agreement with seamen on trawlers of 25 tons and
upwards. 46 85 47 Vict. c. 41. s. 13.
400, 401 deals with the form, period, condition, and mode of
entering into agreements. I bid. and s. 14.
402 agreements by owner, or for service of two or more ﬁshing boats.
46 85 47 Vict. c. 41. s. 15.
403 deals with “ running agreements,” where the voyage averages
less than six months. 46 85 47 Vict. c. 41. s. 16.
404, Endorsement of engagements and discharge 011 running agree-
ment. 46 85 47 Vict. c. 41. s. 17.
405, 406 provides for a report being made by the skipper and sent
to the superintendent within 48 hours of departure of composition of
crew, and reports of change of crew. 46 85 47 Vict. c- 41. ss. 19, 21.
407, Alterations, 850., in agreements are to be attested. 46 85 47
Vict. c. 41. s. 22.
408 deals with oﬁences as to agreement with crew; e.g., fraudulently
altering same, or uttering false copy of same. 46 85 47 Vict. c. 41. s. 23.
4:09, 412 deal with payment of wages and discharge of seamen.
46 85 47 Vict. c. 41. ss. 24, 27.
413, Skippers and second hands must hold certiﬁcates of com-
petency. 46 85 47 Vict. c. 41. s. 42.
414 provides certiﬁcate of competency to skipper and second hand
may be granted by Board of Trade in same manner as certiﬁcates of
competency as master or mate under second part of this Act. 46 85 47
Vict. c. 41. s. 37; 17 85 18 Vict. c. 104. s. 134. See ante, p. 934.
415, Certiﬁcate of service to be granted when skipper served before
1 September 1883, or second hand 1 July 1888, or if a person proves
to the Board of Trade he has been well conducted on board the boats he
has served. See 46 85 47 Vict. c. 41. s. 40.
416, A register of certiﬁcated skippers and second hands to be kept
by Board of Trade and admissible in evidence. 46 85 47 Vict. c. 41. s. 41.
417 provides for Board of Trade regulations as to conveyance of
ﬁsh from trawlers.
PART 5. (secs. 418 to 463) is a commingling of the Passengers Act
(18 85 19 Vict. c. 119); Merchant Shipping Acts, 1862 (25 85 26
Vict. c. 63), 1871 (34 85 35 Vict. c. 110.), 1873 (36 85 37 Vict.
c. 85.), 1876 (39 85 40 Vict. c. 80.), and 1890 (53 Vict. c. 9.).
As to application to colonies, see secs. 418 (2), 457 (5), 458 (b).
Safety—Prevention of Collisions.
4:18.—_“ (1) Her Majesty may, on the joint recommendation of
the Admiralty and the Board of Trade, by Order in Council, make
1894.] 57 & 58 VICT. c. 60.—REPT. OF COLLISIONS.
965
regulations for the prevention of collisions at sea, and may thereby
regulate the lights to be carried and exhibited, the fog signals to be
carried and used, and the steering and sailing rules to be observed by
ships, and those regulations (in this Act referred to as the collision regu-
lations) shall have effect as if enacted in this Act.
“ (2) The collision regulations, together with the provisions of this
Part of this Act relating thereto, or otherwise relating to collisions,
shall be observed by all foreign ships within British jurisdiction, and in
any case arising in a British court concerning matters arising within
British jurisdiction, foreign ships shall, so far as respects the col-
lision regulations and the said provisions of this Act, be treated as if
they were British ships.” 25 & 26 Vict. c. 63. ss. 25, 26.
419, All owners and masters of ships shall obey the collision regu-
lations. (2) A wilful default in this to be a misdemeanor. (3) Any
damage to person or property from non-observance of the collision regu-
lations is to be considered to be occasioned by the wilful default of
generally the person in charge of the deck at the time. Board of Trade
to furnish a copy of the regulations to every master or owner who
applies for it. 25 85 26 Vict. c. 63. s. 27. i‘
420 provides for a surveyor of ships inspecting any British or foreign
ship, to see that it has proper lights and fog signals, &c. 25 85 26 Vict.
c. 63. s. 30; 36 8t 37. c. 85. s. 12.
421, Local rules of navigation in harbours, rivers, or other inland
navigation, are saved, and to have full elfect notwithstanding this Act.
422 enacts that it is the duty of one vessel to assist the other in case
of collision,’ to stand by until assured it is in no further need of assist-
ance, and to give each other the name of their ship: her port of registry:
and from which port and to which she is bound. 36 & 37 Vict.
c. 85. s. 16.
423, Collisions are to be entered in the oﬁicial log.
c. 104. S. 328.
424, Whenever it is made to appear to Her Majesty in Council
that the Government of any foreign country is willing that the collision
regulations or the provisions of this Part of this Act relating thereto or
otherwise relating to collisions or any of those regulations or provisions
should apply to the ships of that country when beyond the limits of
British jurisdiction, Her Majesty may, by Order in Council, direct
that those regulations and provisions shall, subject to any limitation of
time conditions, and qualiﬁcations contained in the order, apply to the
ships of the said foreign country, Whether within British jurisdiction or
not, and that such ships shall, for the purpose of such regulations and
provisions, be treated as if they were British ships. 25 811 26 Vict. c. 63.
s. 58.
425, A report is to be sent Within 24 hours of the occurrence to the
Board of Trade of accidents involving loss of life or of serious personal
injury, or of injury affecting the steaniship’s seaworthiness. 17 8c 18
Vict. c. 104. s. 326.
426, Notice of the loss of any British ship is to be given to the
Board of Trade. 17 8t 18 Vict. c. 104. s. 327; 36 8t 37, c. 85. s. 22.
42'] deals with life-saving appliances and rules to be made by the
Board of Trade, which are to be laid before Parliament. But these
rules are not to apply to ﬁshing boats registered under Part 4.
17 8t 18 Vict.
Application
of collision
regulations to
foreign ships.
966 57 a 58 VICT. 5. 60.—DISTRESS SIGNALS. [1894.
428 provides it shall be the duty of the owner or master of every
British ship to see that his ship is provided, in accordance with the rules
for life-saving appliances, with such of those appliances as having regard
to the nature of the service on which the ship is employed are best adapted
for securing the safety of crew and passengers.
429, A consultative committee, to be appointed in accordance with
the 17 Sch., is to advise on the rules of life-saving appliances.
t
430 provided for non-compliance with the rules, the penalty being
a ﬁne up to lOOl.
431, A surveyor of ships may inspect life-saving appliances on any
ship. 51 8t 52 Vict. c. 24. ss. 3, 4, 5.
432 deals with adjustment of compasses from time to time, and
supply of hose. l7 & 18 Vict. c. 104. s. 301 (2),
433, No one shall place undue weight on safety valve. 17 &- 18
Vict. c. 104. 302. See ante, 286.
434 deals with signals of distress. Her Majesty in Council may
make rules as to what signals shall be signals of distress, and the signals
ﬁxed by those rules shall be deemed to be signals of distress. By sub-
sec. (2), any master or other person displaying signals of distress except
when the vessel is in distress shall pay compensation for any labour,
risk incurred or loss sustained by that signal being taken as a signal of
distress, e.g., that help was required. 36 8t 37 Vict. c. 85. 20, 18.
435, \V here a ship is a sea-going passenger steamer or emigrant ship
within the meaning of the third Part of this Act, the ship shall be pro-
vided to the satisfaction of the Board of Trade (a) with means for
making the said signals of distress at night, including means of making
ﬂames on the ship which are inextinguishable in water, or such other
means of making signals of distress as the Board of Trade may previously
approve; and (b) with a proper supply of lights inextinguishable in
water and ﬁtted for attachment to life-buoys. Sec. 2 imposes a penalty
of lOOl. on the owner, and 50l. on the master, of any such ship going to
sea from the United Kingdom without being provided as above. 39 &
4O Vict. c. 80. 21 ;" and see 18 & 19 Vict. c. 119. s. 27.
436, The Board of Trade may direct any person appointed by them
to record any sea going ship’s draught of water : and the master of every
British sea-going ship shall upon her leaving dock, port or harbour, &c.,
for the purpose of proceeding to sea, record the ship’s draught of water,
and extent of her clear side in the official log-book, and produce the
record when called on to any chief officer of customs: He shall also
permit the person appointed to record the ship’s draught to enter the
ship. Sub-sec. (5) deﬁnes “ clear side ” as the height from the water to
the upper side of the plank of the deck, from which the depth of bold
as stated in the register is measured, and the measurement of the clear
side is to be taken at the lowest part of the side. 34 85 35 Vict. c. 110.
s. 5; 36 80 37 Vict. c. 85. s. 4.
Marking of Deck and Load Lines.
Marking of 4:37. “ Every British ship (except ships under 80 tons register, em-
deckaines, , ployed solely in the coasting-trade, ships employed solely in ﬁshing,- and
P199811re Yachts’ and Ships‘ employed exclusively in trading or going‘from
place to place in any river or inland Water, the whole or part of which
1894.] 57 a 58 vIo'r. c. 60.—DECK-LINES DEFINED. 967
is in any British possession), shall be permanently and conspicuously
marked with lines (in this Act called deck-lines), of not less than 12 inches
in length, and one inch in breadth, painted longitudinally on each side
amidships, or as near thereto as is practicable, and indicating the position
of each deck which is above water.
“ (2.) The upper edge of each of the deck-lines must be level with the
upper side of the deck plank next the water way at the place of
marking.
“ The deck-lines must be white or yellow on a dark ground, or
black on a light ground.
“ In this section, the expression ‘ amidships ’ means the middle of
the length of the load water-line as measured from the fore side of the
stem to the aft side of the stern post. 39 86 4O Vict. c. 80. s. 25 ; 53 Vict.
c. 9. s. 5. ‘
4:38, “The owner of every British ship proceeding to sea from Marking Of
a port in the United Kingdom (except ships under 80 tons register, load'lme'
employed solely in the coasting-trade, ships employed solely in ﬁshing, and
pleasure yachts) shall, before the time herein-after mentioned, mark upon
each of her sides amidships, within the meaning of the last preceding
section, or as near thereto as is practicable, in white or yellow on a dark
ground, or in black on a light ground, a circular disc 12- inches in diameter,
with an horizontal line 18 inches in length drawn through its centre.
“ (2.) The centre of this disc shall be placed at such a level as may be
approved by the Board of Trade below the deck-line marked under this
Act, and speciﬁed in the certiﬁcate given thereunder, and shall indicate
tlllie maximum load-line in salt water to which it shall be lawful to load
t e ship.
(3.) “The position of the disc shall be ﬁxed in accordance with the
tables used at the time of the passing of this Act by the Board of Trade,
subject to such allowance as may be made necessary by any diﬁerence
between the position of the deck-line marked under this Act, and the
position of the line from which freeboard is measured under the said
tables, and subject also to such modiﬁcation, if any, of the tables'and
the application thereof as may be approved by the Board of Trade.”
39 & 4O Vict. c. 80. s. 26; 53 Vict. c. 9. s. 1.
By sub-sec. in approving any such modiﬁcation the Board of
Trade were to have regard to any representation made to them by any
corporation or association for the survey or registry of shipping for the
time being appointed or approved by the Board of Trade . . . for
the purpose of approving and certifying the position of the load-line.
439, Ships so loaded as to submerge in salt water the centre of the disc
indicating the load-line are to be deemed not safe, and that is a good cause
for detention.
440 provides for the time forWmarking-load-hne in case of foreign-
going ships. That is, that where a ship proceeds on a voyage from the
United Kingdom for which the owner is required to enter the ship
outwards, the disc is to be marked before entering her, or if not practic-
able as soon after as may be. And the owner upon entering her outwards
shall insert in the form of entry a statement of the distance in feet and
inches between the centre of this disc and the upper edge of each of the
deck-lines which is above that centre. If be default in this the ship may be
detained. (3), (4), (5) the statement shall appear in the crew agreement,
in the official log-book, and the disc so marked shall be retained on the
vessel until her next return to the United Kingdom. 39 8t 40 Vict.
c. 80.5.26. (3) '
968 57 8558 vre'r. 5. 60.—COL. sn'rrs & LOAD-LINES. [1894.
Provision as
to colonial
ships with
respect to
load-lines.
441 provides that where a ship employed in the coasting trade is
required to be marked with a load-line disc, she shall be so marked before
proceeding to sea from any port, and the owner is once in every 12 months
immediately before the ship proceeds to sea to transmit to the chief officer
of customs of the port of registry a statement in writing of the distance in
feet and inches between the centre of the disc and the upper edge of each
of the deck-lines which is above that centre. And on any renewal or
alteration of the disc a statement is to be sent. 39 85 40 Vict. c. 80.
s. 27.
442 provides a penalty for offences in relation to marking of load-
line. If the disc is not marked, or if the ship is so loaded as to submerge
the centre of the disc in salt water, or if the disc is concealed, removed,
altered or defaced, except lawfully done, or to escape capture by an enemy,
the ﬁne on the master of a British ship may be up to 100l., and on the
owner a like ﬁne. 39 85 40 Vict. c. 80. s. 28.
443. The Board of Trade shall appoint the committee of Lloyd’s
Register of British and Foreign Shipping, or, at the option of the owner
of the ship, any other corporation for the survey or registry of shipping,
or any officer of the Board of Trade specially selected by the Board to
approve and certify on their behalf from time to time the position of any
disc indicating the load-line, 850., and may appoint fees to be taken. And
the Board may make regulations determining the lines or marks to be
used in connection with the disc, in order to indicate the maximum load
line under different circumstances and at different seasons, and declaring
that this part of this Act is to have effect as if any such line were drawn
through the centre of the disc. (5) As to the mode of marking the disc.
(0) As to the mode of applying for certiﬁcates. (d) Requiring entries in
log-book and copies of such entries. 53 Vict. c. 8. s. 2.
Colonial Ship with respect to Load Lines.
444, “ 1Vhere the legislature of any British possession by any enact-
ment provides for the ﬁxing, marking, and certifying of load-lines on ships
registered in that possession, and it appears to Her Majesty the Queen
that that enactment is based on the same principles as the provisions of
this Part of this Act relating to load-lines, and is equally effective for
ascertaining and determining the maximum load-lines to which those ships
can be safely loaded in salt water, and for giving notice of the load-line
to persons interested, Her Majesty in Council may declare that any load—
line ﬁxed and marked, and any certificate given in pursuance of that
enactment, shall, with respect to ships so registered, have the same effect
as if it had been ﬁxed, marked or given in pursuance of this Part of this
Act.” 53 Vict. c. 9. s. 3,
445 provided that where the Board of Trade certify the laws and
regulations for the time beiu g in force in a foreign country and relating
to overloading and improper loading are equally effective with the provi-
sions of this Act relating thereto, Her Majesty in Council may direct
that on a proof of a ship of that country having complied with those laws
and regulations, she shall not when in a port in the United Kingdom be
liable to be detained for non-compliance with the said provisions of this
Act, nor be liable to any ﬁne which would otherwise arise fornon-
compliance with those provisions.
(2.) provided that this section was not to apply in the case of ships .of
any foreign country in which it appears to Her Majesty that correspond-
ing provisions are not extended to British ships. 53 Vict. c. 9. s. 4,.
1894.] 57 a 58 vIcT. c. 60.—DANGEROUS GOODS. 969
446, Dangerous goods are not to be attempted to be transmitted by
any vessel, British or foreign, without being distinctly labelled and the
nature of the goods notiﬁed to the master, “dangerous goods” being
deﬁned as “aquafortis,” “ vitriol,” “ naphtha,” “benzine,” “ gunpowder,”
“lucifer matches,” “nitro-glycerine,”v“ petroleum,” and any explosives
within the meaning of the Explosives Act, 1875 (38 86 39 Vict. c. 17
[The term “ explosive ” is said to mean gunpowder, nitro glycerine,
dynamite, gun-cotton, blasting powders, fulminate of mercury or of other
metals, coloured ﬁres, and every other substance used or manufactured with
a view to produce a practical effect by explosion, or a pyrotechnic effect.
(2.) It includes fog-signals, fireworks, fuzes, rockets, percussion caps,
detonators, cartridges and ammunition of all descriptions, and every
adaptation of an explosive, as deﬁned, and any other goods of a dangerous
nature] 36 & 37 Vict. c. 85. ss. 23, 24, 25, 26, 27, 28.
447 deals with penalty for misdescription of dangerous goods;
the ﬁne may be up to 500i. Ibid.
4:48 gives powers to master or owner of any vessel, British or
foreign, to refuse to take on board any package he suspects to contain
dangerous goods; and if brought on board without being properly marked,
and without notice of their contents, they may be thrown overboard
without incurring liability. Ibid.
449, Dangerous goods not properly sent may be forfeited, and
that, although the owner is not before the court decreeing the forfeiture.
450, None to be punished twice for the same offence. Ibz'd.
Loading of Timber.
451, If a ship, British or foreign, arrives between the last day of Loading of
October and the 16th day of April in any year at any port in the timber-
United Kingdom from any port out of the United Kingdom carrying as
deck cargo -that is to say in any uncovered space on deck, or in any covered
space not included in the cubical contents forming the ship’s registered
tonnage—any wood goods as hereinafter deﬁned, the master of that ship,
and also the owner if he is privy to the offence, shall be liable to a ﬁne not
exceeding 5l. for every hundred cubic feet of wood goods carried in con-
travention of this section. Provided that a master or owner shall not be
liable to any ﬁne under this section (a) in respect of any wood goods which
the master has considered it necessary to place or keep on deck during
the voyage on the account of the springing of any leak, or of any other
damage to the ship received or apprehended : or (b) if he proves that the
ship sailed from the port at which the wood goods were loaded as deck
cargo at such time before the last day of October as allowed a suﬂicient in-
ter val, according to the ordinary duration of the voyage, for the ship to arrive
before that day at the said port in the United Kingdom, but was prevented
from so arriving by stress of weather or circumstances beyond his control.
(a) If he proves that the ship sailed from the port at which the wood goods
were loaded as deck cargo at such time before the 16th April as allowed a
reasonable interval, according to the ordinary duration of the voyage,
for the ship to arrive after that day at the said port in the United
Kingdom, and by reason of an exceptionally favourable voyage arrived
before that day. (3.) For the purpose of this section the expression
“ woodv goods,” means (a) any square, round, waney, or other timber, or any
pitch-pine, mahogany, teak, or other heavy wood goods whatever, or (b)
any more than ﬁve spare spars or store spars whether or not made,
970 57 a 58 vrc'r. 5. 60.—GRAIN CARGOES. [1894.
Obligation to
take pre-
cautions to
prevent grain
cargo from
shifting.
Precautions
against shifting
of grain cargo
laden in port
in Mediterran-
ean or Black
Sea or 011
coast of North
America.
Notice by
master of kind
and quantity of -
grain cargo.
dressed, and ﬁnally prepared for use, or (c) any deals, battens, or light
wood goods of any description to a height exceeding three feet above
the deck. Nothing in this section was to affect any vessel which
comes into any port of the United Kingdom under stress of weather, or
for repairs, or for any other purpose than the delivery of her cargo.
39 8t 40 Vict. 80. s. 24.
Carriage of Grain.
452, Where a grain cargo is laden on board any British ship, all
necessary and reasonable precautions (whether mentioned in this Part of
this Act or not) shall be taken in order to prevent the cargo from shifting.
(2.) If those precautions have not been taken in the case of any
British ship, the master of the ship and any agent of the owner who
was charged with the loading of the ship, or the sending her to sea shall
each be liable to a ﬁne not exceeding 300l., and the owner of the ship
shall also be liable to the same ﬁne, unless he shows that he took all
reasonable means to enforce the observance of this section, and was not
privy to the breach thereof. 43 85 44 Vict. c. 43. s. 3.
453, Where a British ship laden with a grain cargo at any port in
the Mediterranean or Black Sea is bound to ports outside the Straits of
Gibraltar, or where a British ship is laden with a grain cargo on the
coast of N ortli America, the precautions to prevent the grain cargo from
shifting, set out in the 18th Schedule to this Act [also in 43 & 44 Vict.
c. 43. s. 4] shall be adopted, unless the ship is loaded in accordance with
regulations for the time being approved by the Board of Trade, or is
constructed and loaded in accordance with any plan approved by the
Board of Trade.
(2.) If this section is not complied with in the case of any ship,
reasonable precautions to prevent the grain cargo of that ship from shifting
shall de deemed not to have been taken, and the owner and master of the
ship, and any agent charged with loading her or sending her to sea,
shall be liable accordingly to a ﬁne under this Part of this Act.
(3.) Nothing in this section shall exempt a person from any liability,
civil or criminal, to which he would otherwise be subject for failing to
adopt any reasonable precautions which, although not mentioned in this
section, are reasonably required to prevent grain cargo from shifting.
454,-“ Before a British ship laden with grain cargo at any port
in the Mediterranean or Black Sea, and bound to ports outside the Straits
of Gibraltar, or laden with grain cargo on the coast of North America,
leaves her ﬁnal port of loading, or within forty-eight hours after leaving
that port, the master shall deliver or cause to be delivered to the British
consular oﬂicer, or, if the port is in a British possession, to the‘ chief
oﬁicer of customs, at that port, a notice stating——
“ (a) the draught of water and clear side, as deﬁned by this Part of
this Act, of the said ship after the loading of her cargo has
been completed at the said ﬁnal port of loading; and
“ (b) the following particulars in respect to the grain cargo :
namely,—
“ (i) the kind of grain and the quantity thereof, which
quantity may be stated in cubic feet, or in
quarters, or bushels, or in tons weight; and
“ (ii) the mode in which the grain cargo is stowed;
and v
“ (iii) the precautions taken against shifting.‘ '
1894.] 57 a 58 vic'r. c. 60.—UNSEAWOBTHY SHIP. 9'71
“ The master shall also deliver a similar notice to the proper officer
of customs in the United Kingdom, together with the report required to
be made by the Customs Consolidation Act, 187 6, on the arrival of the
ship in the United Kingdom.
“ Every such notice shall be sent to the Board of Trade, as soon as
practicable, by the officer receiving the same.
“ If the master fails to deliver any notice required by this section,
or if in any such notice he wilfully makes a false statement or wilfully
emits a material particular, he shall for each offence be liable to a ﬁne not
exceeding one hundred pounds.
“ The Board of Trade may, by notice published in the London
Gazelte, or in any such other way as the Board think expedient, exempt
ships laden at any particular port or any class of those ships from this
section.” 43 85 44 Vict. c. 43. s. 6.
455, “ For securing the observance of the provisions of this Part of
this Act with respect to grain cargo, any oﬂicer having authority in
that behalf from the Board of Trade, either general ‘or special, shall have
power to inspect any grain cargo, and the mode in which the same is
stowed, and for that purpose shall have all the powers of a Board of
Trade inspector under this Act.” 43 & 44 Vict. c. 43. s. 8.
456, “ For the purpose of the provisions of this Part of this Act with
respect to grain cargo--
“The expression ‘grain’ means any corn, rice, paddy, pulse, seeds,
nuts, or nut kernels.
“ The expression ‘ ship laden with grain cargo ’ means a ship carrying
a cargo of which the portion consisting of grain is more than one
third of the registered tonnage of the ship, and that third shall be
computed, where the grain is reckoned in measures of capacity, at
the rate of one hundred cubic feet for each ton of registered tonnage,
and where the grain is reckoned in measures of weight, at the rate
of two tons weight for each ton of registered tonnage.” 43 & 44
Vict. c. 43. s. 10.
Unseaworthy Ships.
457,-“ If any person sends or attempts to send, or is party to
sending or attempting to send, a British ship to sea in such an unsea—
worthy state that the life of any person is likely to be thereby endangered,
he shall in respect of each oﬁence be guilty of a misdemeanor, unless he
proves either that he used all reasonable means to ensure her being sent
to sea in a seaworthy state, or that her going to sea in such an unsea'
worthy state was, under the circumstances, reasonable and justiﬁable, and
for the purposeof giving that proof he may give evidence in the same
manner as any other witness.
“ If the master of a British ship knowingly takes the same to sea
in such an unseaworthy state that the life of any person is likely to be
thereby endangered, he shall in respect of each offence be guilty of a
misdemeanor, unless he proves that her going to sea in such an unsea-
worthy state was, under the circumstances, reasonable and justiﬁable, and
for the purpose of giving such proof he may give evidence in the same
manner as any other witness.
“ A prosecution under this section shall not, except in Scotland, be
instituted otherwise than by, or with the consent of, the Board of Trade,
or of the Governor of the British possession in which the prosecution
takes place.
39 86 40 Vict.
c. 36. SS. 50, 51 .
Power of Board
of Trade for
enforcing
provisions as
to carriage of
grain.
Deﬁnition of
grain, &e.
Sending un-
seaworthy
ship to sea a
misdemeanor.
972 57 a 58' VICT. 5. so-amramme SHIP. [1894.
“ A misdemeanor under this section shall not be punishable upon
summary conviction.
“ This section shall not apply to any ship employed exclusively
in trading or going from place to place in any river or inland water of
which the whole or part is in any British possession.” 34 85 35 Vict.
c. 110. s. 11; 39 85 40 Vict. c. 80. s. 4.
458, An obligation was placed on the shipowner and crew to use all
reasonable eﬁorts to secure seaworthiness. (b) Same as (5) above.
459, Where a British ship being in any port in the United Kingdom
is an unsafe ship by reason of the defective condition of her hull, equip-
ments, machinery, or because of improper loading or overloading, and
therefore unﬁt to proceed to sea without serious danger to human life,
she may be provisionally dealt with as follows The Board of
Trade may order an unsafe British ship to be detained for the
purpose of being surveyed. (b) When detained there shall be served
on the master a written statement of the grounds of detention. (c) The
Board of Trade on receiving the report may order the vessel to be
released, or ﬁnally detained, or detained only until the necessary
remedies are carried out, or the cargo unloaded or reloaded.
(d) Before the order for ﬁnal detention is made, a copy of the report
is to be served on master of ship, who within seven days after that
service may appeal to the court of survey for the port or district
where the ship is detained. (e) Before the survey is made the master
may require that a person selected out of the list of assessors should
accompany the surveyor, and if they agree, the ship shall be released
or detained accordingly ; if they differ, the Board of Trade may act
as if the requisition had not been made, the same right of appeal
against the report of the surveyor remaining. Where a ship is pro-
visionally detained, the Board of Trade may at any time refer the matter
to the court of survey. (g) The Board of Trade, if satisﬁed that the
ship is not unsafe, may order her to be released. (2.) Any person
appointed by the Board of Trade as a detaining oﬁicer shall have same
' power as the Board of Trade has of provisionally detaining a ship and
appointing a person to survey her; and if he thinks she is not unsafe,
he may order her release. A detaining officer is to report to the
Board of Trade any order made by him for detention or release. (4.) An
order detaining the ship, provisional or ﬁnal, is to be served as soon as
may be. A detained ship is not to be released by reason of her
British register beingl subsequently closed. (6.) Board of Trade may,
with the consent of the Treasury, appoint detaining oﬁicers, and may
remove the same, 850., and (7.) detaining officers are to have the same
power as a person appointed by a court of survey to survey a ship.
39 85 4O Vict. c. 80. s. 6.
460 deals with liability for costs and damages, e.g. costs following
the result. If there was no reasonable cause for the detention, then
costs and compensation are to be paid to the shipowner; if it appears that
the ship was unsafe at the time of detention, the owner of the ship is
liable to the Board of Trade for their costs incidental to the survey, which
may be recovered as salvage is. 39 85 40 Vict. c. 80. s. 10. b'ee also
33 85 34 Vict. c. 90. s. 23.
461 gives power to Board of Trade to require from persons complain-
ing that the ship was unsafe security for costs, except where complaint is
‘made by one-fourth (being not less than three) of the seamen of the
ship and is not a frivolous complaint. 39 85 40 Vict. c. 80. s. 11.
1894.] 57 a 58 vIor. c. 60.—SPECIAL SHIPPING mos. 973
4:62. The above provisions as to detention, are applicable to foreign
ships loading at a United Kingdom port, with the modiﬁcation that
notice is to be served on the consular officer of the ship’s country, and he
may select any person to accompany the surveyor, and when the owner
appeals to the court of survey the consular ofﬁcer may appoint a com-
petent person to be an assessor in lieu of the assessor appointed by the
Board of Trade. 39 85 4O Vict. c. 80. s. 13.
463, Where in any proceedings against a seaman or apprentice for
the offence of desertion, it is alleged by the seamen to the number of
one-fourth, or, if their number exceeds twenty, by not less than ﬁve
seamen, that the ship is unseaworthy,the survey of aship may be ordered
by the Board of Trade, costs and compensation to follow the results.
39 85 40-Vict. c. 80. s. 11 (2nd par); 34 85 35 Vict. c. 110. s. 7;
36 85 37 Vict. c. 85. s. 9.
PART 6 (secs. 464 to 491) adopts portions of Parts 3, 4, and 8 of
17 85 18 Vict. c. 104. ; 39 85 40 Vict. c. 80.; 45 85 46 Vict. c. 76.;
53 85 54 Vict. c. 27.
464, A special shipping inquiry into any shipping casualty may be
held in England, not only when the casualty takes place on the coast
of the United Kingdom, but also where a ship is lost in any part of the
world, and a witness is found in the United Kingdom. 17 85 18 Vict.
c. 104. s. 432; 39 & 4O Vict. c. 80. s. 29.
465, 466 deal with preliminary inquiry into and formal investigation
of shipping casualties. 17 85 18 Vict. c. 104. ss. 432-448; 39 85 4O
Vict. c. 80. s. 30.
46'] deals‘ with appointment of assessors for investigating shipping
casualties and their removal from oﬂice. Ibid.
468 deals with inquiry in cases of loss of life happening to or on
board any boat belonging to a ﬁshing vessel. And that Board of
Trade may order inquiry. See 46 85 47 Vict. c. 41. 45.
469, Power of Board of Trade to suspend or cancel the certiﬁcate of
any master, mate, or engineer convicted for any offence. 17 85 18 Vict.
c. 104. s. 242; 25 85 26 Vict. c. 63. s. 23.
4'10 gives power to the court of investigation, with the consent of
one assessor, to cancel or suspend the certiﬁcate of a master, mate, or
engineer. The decision to be stated in open court and a full report sent
to the Board of Trade. 17 85 18 Vict. c. 104. s. 242; 25 85 26 Vict.
c. 63. s. 23; 45 85 464Yict. c. 76. s. 5.
4'11 gives the Board of Trade power to cause an inquiry into the
conduct of a certiﬁcated ofﬁcer.
472, In England and Ireland the High Court, in Scotland the
Court of Session, elsewhere in Her Majesty’s dominions any colonial
court of Admiralty or Vice-Admiralty Court—may remove theimaster of
any Ship within the jurisdiction of that court, if that removal is shown
to the satisfaction of the court by evidence on oath to be necessary.
(2.) The removal may be made on the application of any owner of the
Ship or his agent, or of the consignee of the ship, or of any certiﬁed mate,
or of one-third or more of the crew of the ship.
Removal of
master by Ad-
miralty Court.
974 57 a as vIc'r. c. 60.—CANOELLING CERT. [1894.
Delivery of
certiﬁcate
cancelled or
suspended.
Power of
Board of Trade
to restore
certiﬁcate.
Authority for
colonial court
(3.) The court may appoint a new master in stead of the one removed;
but where the owner, agent, or consignee of the ship is within the juris-
diction of the court such an appointment shall not be made without the
consent of that owner, agent, or consignee.
(4.) The court may also make such order and require such security ‘in
respect of the costs of the matter as the court thinks ﬁt. See 17 & 18
Vict. c. 104. s. 240; 25_& 26 Vict. c. 63. s. 23.
473, A master, mate, or engineer Whose certiﬁcate is cancelled or
suspended by any court or by the Board of Trade shall deliver his
certiﬁcate-—
(a) if cancelled or suspended by a court to that court, on demand ;
(b) if not so demanded, or if it is cancelled or suspended by the
Board of Trade, to that Board, or as that Board direct.
(2.) If a master, mate, or engineer fail to comply with this section, he
shall for each oﬁence be liable to a ﬁne not exceeding 501. 25 85 26 Vict.
c. 63. s. 24.
4:74;, The Board of Trade may, if they think that the justice of the
case requires it, reissue and return the certiﬁcate of a master, mate, or
engineer which has been cancelled or suspended whether in the United
Kingdom or in a British possession, or shorten the time for which it is
suspended, or grant in place thereof a certiﬁcate of the same or any lower
grade. 25 80 26 Vict. c. 63. s. 23
475 gives power to the Board of Trade in any case where under this
Part of this Act aformal investigation into a shipping casualty or an
inquiry into the conduct of a master, mate, or engineer has been held, to
order a re-hearing on fresh and important evidence, or if they suspect there
has been a miscarriage of justice.
(2.) The Board of Trade may order the case to be re~heard either by
the court or authority by whom the case was heard in the ﬁrst instance,
or by the wreck commissioner, or in England and Ireland by the High
Court, or in Scotland by the senior Lord Ordinary or any other judge in
the Court of Session whom the Lord President of that court may appoint.
(3.) Where on any such investigation or inquiry a decision has been
given with respect to the cancelling or suspension of the certiﬁcate of a
master, mate, or engineer, and an application for a re-hearing under
this section has not been made or has been refused, an appeal shall lie
from the decision to the following courts: (a) If given in England_
or by a naval court, to the High Court; (6) if the decision is given in
Scotland, to either division of the Court of Session ; (c) if the decision is
given in Ireland, to the High Court in Ireland.
(4.) Any re-hearing or appeal under this section shall be subject to and
conducted in accordance with such conditions and regulations as may be
prescribed by rules made in relation thereto under the powers contained
in this Part of the Act. 42 & 43 Vict. c. '7 2. s. 2.
4:76 deals with investigations before a stipendiary magistrate.
18 Vict. c. 104. s. 435.
477, The Lord Chancellor may appoint and remove wreck commis-
sioners for the United Kingdom, there not being more than three at any
one time. And if it becomes necessary to appoint a wreck commissioner in
Ireland the Lord Chancellor of Ireland shall have the appointment and
power to remove that Commissioner. 39 & 110 Vict. c. 80. s. 29.
1780
478,-“ ‘The legislature of any British possession may authorize
any, court or tribunal to make inquiries as to shipwrecks, or other
1894.] 57 a 58 vicT. 5. 60.—COLONIAL INQUIRIES. 975
casualties affecting ships, or as to charges of incompetency or misconduct
on the part of masters, mates, or engineers of ships, in the following
cases; namely,—
“ Where a shipwreck or casualty occurs to a British ship on or
near the coasts of the British possession or to a British ship
in the course of a voyage to a port within the British pos-
session :
“ Where a shipwreck or casualty occurs in any part of the world
to a British ship registered in the British possession:
“ Where some of the crew of a British ship which has been wrecked
or to which a casualty has occurred, and who are competent
witnesses to the facts, are found in the British possession :
“ Where the incompetency or misconduct has occurred on board
a British ship on or near the coasts of the British posses-
sion, or on board a British ship in the course of a voyage
to a port within the British possession :
“ (49.) Where the incompetency or misconduct has occurred on board
a British ship registered in the British possession :
“ ( When the master, mate, or engineer of a British ship who is
charged with incompetency or misconduct on board that
British ship is found in the British possession.
“ A court or tribunal so authorized shall have the same jurisdiction
over the matter in question as if it had occurred within their ordinary
jurisdiction, but subject to all provisions, restrictions, and conditions
which would have been applicable if it had so occurred.
“ An inquiryshall not be held under this section into any matter
which has once been the subject of an investigation or inquiry and has
been reported on by a competent court or tribunal in any part of Her
Majesty’s dominions, or in respect of which the certiﬁcate of a master,
mate, or engineer has been cancelled or suspended by a naval court.
“ Where an investigation or inquiry has been commenced in the
United Kingdom with reference to any matter, an inquiry with refer-
ence to the same matter shall not be held, under this section, in a British
possession.
“ (5.) The court or tribunal holding an inquiry under this section shall
have the same powers of cancelling and suspending certiﬁcates, and shall
exercise those powers in the same manner as a court holding a similar
investigation or inquiry in the United Kingdom.
“ The Board of Trade may order the re-hearing of any inquiry
under this section in like manner as they may order the re-hearing of a
similar investigation or inquiry in the United Kingdom, but if _an ap-
plication for re-hearing either is not made or is refused, an appeal shall
lie from any order or ﬁnding of the court or tribunal holding the inquiry
to the High Court in England : Provided that an appeal shall not lie—
“ (a) from any order or ﬁnding on aninquiry into a casualty affecting
a ship registered in a British possession, or ' '
“ (b) from a decision affecting the certiﬁcate of a master, mate, or
engineer. if that certiﬁcate has not been granted either
in the United Kingdom or in a British possession, under
the authority of this Act.
“ (7 The appeal shall be conducted in accordance with such conditions
and regulations as may from time to time be prescribed by rules made
in relation thereto under the powers contained in this Part of this Act.”
45 & 46 Vict. c. 76. ss. 3, 5, 6. See ante, 53 & 54 Vict. c. 27. s. 6.
4'19, The Lord Chancellor may with the consent of the Treasury
(as to fees) make general rules for carrying into effect the enactments
to make
inquiries into
shipping
casualties and
conduct of
officers.
976 57 a 58 W01‘. 0. 60.—NAVAL cTs. or INQUIRY. [1894.
Application of
provisions as to
naval courts.
relating to formal investigations and to the re-hearing of, or an appeal
from any investigation, under this Part of the Act, and in particular
with respect to the appointment of assessors, procedure, and place
where these investigations are to be held. 39 85 40 Vict. c. 80. s. 30.
480 gives the cases in which naval courts may be summoned on the
high seas or abroad, e.g. that they may be summoned by any oﬁicer in
command of any of Her Majesty’s ships on any foreign station, or in the
absence of such an officer by any consular officer in the following cases :
Whenever a complaint which appears to require immediate investigation
is made by the master, certiﬁcated mate, or one or more seamen of a
British ship; whenever the interest of the owner of the ship or cargo seem
to require it; whenever any British ship is wrecked, abandoned, or lost
at or near the place where that ofﬁcer may be; or whenever any of the
crew of any British ship which has been wrecked, abandoned, or lost
arrive at that place. 17 85 18 Vict. c. 104. s. 260.
481 gives the constitution of naval courts as not more than ﬁve, nor
less than three members. If possible one to be an officer in the naval
service of Her Majesty not below the rank of lieutenant, one a consular
oﬁicer, and one amaster of a British merchant ship. But the court is
not to include the master or consignee of the ship to which the parties
complained of or complaining belong. 17 & l8 Vict. c. 104. s. 261.
482, The functions of a naval court are to investigate the cause of
the wreck, abandonment, or loss. And a naval court may administer an
oath. 17 85 18 Vict. c. 104. s. 262.
483, The powers of the naval court are set out.‘ It can remove the
master: or cancel the certiﬁcate of any master, mate, or engineer; dis-
charge a seaman ; decide any question as to wages, or ﬁnes, or forfeitures.
It may exercise the powers given to consular oﬁicers in Part 13. It
may punish a master or any of the crew, for any offence against this Act
which is punishable in a summary way. 17 &' 18 Vict. c. 104. 263,
264; 18 8519 Vict. c. 91. s. 18 ; 34 85 35 Vict. c. 110.8.
484, A report of all proceedings of naval courts is to be sent home
to the Board of Trade. 17 85 18 Vict. c. 104. s. 265.
485, A penalty is imposed on all preventing complaint or obstruct-
ing investigation to or by any naval courts. 17 85 18 Vict. c. 104. s. 266.
486, “ The provisions of this Part of this Act with regard to naval
courts on the high seas and abroad shall apply to all sea-going ships
registered in the United Kingdom (with the exception in their application,
elsewhere than in Scotland, of ﬁshing boats exclusively employed on the
coasts of the United Kingdom) and to all ships registered in a British
possession when these ships are out of the jurisdiction of their respective
Governments, and where they apply to a ship, shall apply to the owners,
master, and crew of that ship.”
(2.) For the purpose of the said provisions an unregistered British
ship shall be deemed to have been registered in the United Kingdom.
487-489 give the constitution of courts of survey, e.g. a judge I
sitting with two assessors. The judge, any assessor of the court, and
any person appointed by the judge may survey a ship or appoint any
competent person to do it; and report, and the judge is to have the
same power as the Board of Trade have to order a vessel to be
released or detained with concurrence of one assessor, and the Lord
Chancellor may make general rules to carry into effect this provision
and as to fees, &c. 39 85 40 Vict. c. 80. ss. 7, 8, 9.
1894.] 57 a 58 VICT. 5. 6i).-DLVRY. GOODS: FREIGHT. 977
490, Scientiﬁc referees. If the Board of Trade consider an appeal
to a court of survey involves a question of construction or design or of
scientiﬁc difficulty or important principle, they may refer the matter to
one or more out of a list of scientiﬁc referees approved by a Secretary
of State. The selection may be made by the Board of Trade and the
appellant; or if they differ, by a Secretary of State; and thereupon
the appeal is to be determined by the scientiﬁc referee or referees, who
are to have the same powers as the court of survey. 39 85 40 Vict.
c. 80. s. 15.
491, The Treasury is to appoint what payments are to be made to
any wreck commissioner, judge of a court of survey, assessor, registrar,
scientiﬁc referee, or any other ofﬁcer appointed. 39 85 4O Vict. c. 80.
s. 39.
PART 7 (secs. 492 to 501)-Delz'very of Goods and Men for
Freight.
492, The interpretation of terms used in this Part are given. See
25 85 26 Vict. c. 63. s. 66, and add “ wharﬁnger ” and “ warehouseman.”
493 gives power to shipowner to enter and land goods on default by
owner of goods to do so. 25 & 26 Vict. c. 63. s. 67.
494, The goods, though landed, are to continue subject to a lien for
freight if shipowner gives notice to that effect to warehouseman. 25 85 26
Vict. c. 63. s. 68.
495 provides for discharge of lien. 25 85 26 Vict. c. 63. ss. 69, 70.
496 gives provisions as to deposits by owners of goods of the sum
claimed by the shipowner, and as to notice within 15 days to retain it.
25 85 26 Vict. c. 63. ss. 71, 72.
49'], 498 deal with sale of goods by warehouscmen and application.
of proceeds. 25 85 26 Vict. c. 63. ss. 73, 74, 75.
499 gives to the Warehouseman a right to rent: and also at the
expense of the owner to do all things necessary for proper custody and
preservation of the goods. 25 85 26 V ict. c. 63. s. 76.
500 exonerated warehouseman from taking charge of any goods
which he was not liable to take charge of if this Act had not passed. Nor
is he bound to see to the validity of any lien claimed by any shipowner
under this Part of the Act. 25 85 26 Vict. c. 63. s. 77.
501 saved the powers given under local Acts to any harbour authority,
85c. 25 85 26 Vict. c. 63. s. 78.
PART 8 (secs. 502 to 509). See Part of 17 85 18 Vict. c. 104.
By sec. 509 this Part of this Act extends to the whole of Her
Majesty’s dominions unless the context otherwise requires.
Liability of Shipowners.
502, Limitation of shipowner’s liability for damage to goods; e.g.
where it happens without his actual fault or privity, where lost by ﬁre;
or where the goods are gold, silver, diamonds, 850., the true nature of
which have not been declared to the owner or shipper, are lost or
damaged by robbery, embezzlement, or secreting thereof. 17 85 18 Vict.
c. 104. s. 503.
s 2340. 3 Q
978 57 a as VICT. c. 60..-'.-LIABILITY or OWNER. [1894.
Power of Courts
to consolidate
claims against
owners.
503, Limitation of owner’s liability in certain cases of loss of life,
injury, or damage. 17 & 18 Vict. c. 104. ss. 504, 506; 25 & 25 Vict.
c. 63. s. 54.
504, “ Where any liability is alleged to have been incurred by the
owner of a British or foreign ship in respect of loss of life, personal
injury, or loss of or damage to vessel or goods, and several claims are
made and apprehended in respect of that liability, then the owner may
‘apply in England and Ireland to the High Court, or in Scotland to the
Court of Session, or in a British possession to any competent court, and
that court may determine the amount of the owner’s liability, and may
distribute that amount rateably among the several claimants, and may
stay any proceedings pending in any other court in relation to the same
matter, and may proceed in such manner and subject to such regulations
as to making persons interested parties to the proceedings, and as to
the exclusion of any claimants who do not come within a certain time,
and as to requiring security from the owner, and as to payment of any
costs, as the court thinks just.” 17 8t 18 Vict. c. 104. s. 514.
505, All sums paid on account of damages in respect of which the
liability of owners is limited, and all costs in relation thereto, may be
brought into account among part owners of the same ship. 17 85 18
Vict. c. 104. s. 515..
506, Insurance against liability of owner not to be invalid. 25 & 26
Vict. c. 63. s. 55.
507, The passengers list, in respect of loss of life &c., is proof of the
passengers on board ship. 25 & 26 Vict. c. 63. s. 56.
508, Nothing in this Part of the Act was to lessen the liability of the
master, &c., he being also part owner : or to extend to any British ship
which is not recognised as such within the meaning of the Act.
509. This Part of this Act shall, unless the context otherwise re-
quires, extend to the whole of Her Majesty’s dominions.
PART 9 (secs. 510 to 571) is taken from 17 8t 18 Vict. c. 104. (Part 8);
18 & 19 Vict. c. 91 ; 25 & 26 Vict. c. 63.; 39 & 40 Vict. c. 80.; and
40 and 41 Vict. c. 16.
Wreck and Salvagc.— Vessels z'n Distress.
510, The deﬁnition of “ wreck ” and “ salvage ” is given.
511, Designates the duty of the receiver of wreck where the vessel is
wrecked, stranded, or in distress on or near the coasts of the United
Kingdom. 17 80 18 Vict. c. 104. s. 441.
512, Power is given to the receiver of wreck in case of vessels in
distress to demand assistance from any persons or master of any vessel
or carts, &c., near at hand. 17 & 18 Vict. c. 104. s. 442.
513, Power is given to all persons to pass over adjoining lands for
the purpose of rendering assistance. 17 & 18 Vict. c. 104. s. 446.
514, Power is given to the receiver of wreck to suppress plunder and
disorder by force. 17 &3 18 Vict. c. 104. s. 444. -
515, Liability of inhabitants for damage in case of a vessel plundered.
The Blot (Damages) Act, 1886, s. 6; .17 8t 18 Vict. c. 104. s. 477.
4 v _r
1894.] 57 a 58 vrc'r. 5. 60.—CLAIMS TO wREcKs. 9'79
516, The powers of receiver of wreck in his absence may be exercised
by the chief ofﬁcer of customs, principal officer of coastguard, officer of
inland revenue, sheriff, J .P., or commissioned officer, naval or military;
and they become agent or agents for the receiver. 17 85 18 Vict. c. 104.
s. 445.
517 provides for examination in respect of ships in distress by
receiver of wreck or other person acting for him as soon as may be after
the casualty and making a report to the Board of Trade and Lloyd’s.
17 8c 18 Vict. c. 104. s. 448; 39 8t 40 Vict. c. 80. s. 31. ‘
518 provision as to dealing with wreck found in the United Kingdom.
17 & 18 Vict. c. 104. s. 450.
519, A penalty for taking wreck at time of casualty is imposed,
17 85 18 Vict. c. 104. s. 443. ~
520, When a receiver takes possession of any wreck he shall, within
48 hours, give notice of wreck at the nearest custom house, and the
value of the Wreck. 17 8c 18 Vict. c. 104. s. 452.
521, The owner of wreck is entitled to have it delivered to him, on
paying salvage fees, &c. ; and in the case of a foreign ship, in absence of
the owner, &c., the consular officer of that country is, as to custody of
the goods, to be deemed the owner. 17 8c 18 Vict. c. 104. s. 470; 18 82; 19
Vict. c. 91. s. 19.
522, Immediate sale of wreck by receiver in certain cases allowed
order, e.g., if under 5l. : if perishable: or if not of sufficient value to pay
for the warehousing. 17 8c 18 Vict. c. 104. s. 453.
523, Her Majesty and Her Royal successors are entitled to all
unclaimed wreck found in any part of Her Majesty’s dominions, except
in places were Her Majesty or any of Her Royal predecessors has granted
to any other person the right to that wreck.
524, Notice of unclaimed wreck is to be given to admirals, lords of
the manor, and other persons entitled. 17 & 18 Vict. c. 104. s. 471.
525, If not claimed within one year, the unclaimed wreck is to be
disposed of; if claimed by admiral, vice-admiral, lord of the manor,
&c., and the title is proved, it is to be delivered to that person. If not
claimed as above, then it is to be sold, and the proceeds after paying all
claims thereon paid over for the beneﬁt of the Crown, either to the
Duchy of Lancaster or Duchy of Cornwall, or, if not claimed by these
duchies, during life of Her Majesty, to Mercantile Marine Fund.
17 85 18 Vict. c. 104. 475; 25 85 26 Vict. c. 63. s. 53.
526 gives the mode by which disputes as to the title to unclaimed
wreck may be settled, either in a summary way, as in the case of salvage,
or in the courts. 17 86 18 Vict. c. 104. ss. 472, 473.
52'] provides that delivery of unclaimed wreck by receiver is not to
prejudice any other person’s title. 25 8t 26 Vict. c. 63. s. 52.
528 gives power to the Board of Trade to purchase rights to wreck.
17 85 18 Vict. c. 104. s. 474.
529, N o admiral exercising Admiralty jurisdiction is, as such, to
interfere with wreck except as authorised by the Act.
530-534 provide for removal of wrecks by Harbour or Conservancy
authority if any vessel is sunk : stranded: or abandoned in any harbour
or tidal waters under their control, and also by (sec. 531) lighthouse
authorities. If any question as to who is to do the work arises between
Right of the
Crown to
unclaimed
wreck.
3Q2
980 57 85 58 VICT. e. 60.—REWARDS SAVING LIFE. [1894.
Salvage payable
for saving life.
Salvage of life
from foreign
vessels.
these authorities (sec. 533) the Board of Trade is to decide. And these
powers are to be in addition to any other powers given for a like object
by the Act. 40 85 41 Vict. c. 16. ss. 4, 5, 6, 7, 8.
535-537 provide for punishment of offences in respect of taking
wreck to foreign port, interfering with wrecked vessel, impeding receiver,
secreting wreck, or when receiver suspects wreckage is secreted. 17 85 18
Vict. c. 104. ss. 479, 478 (2) (3), and 451.
538, 539 deal with marine store dealer. He is to have his name
and trade painted on his shop, and keep proper books. 17 85 18 Vict.
c. 104. s. 480 (l) 85 (2).
540, 541, Marine store dealer is not to purchase from persons under
sixteen; not on any pretence to cut up cable or such like article exceed-
ing ﬁve fathoms in length without a written permit; and to obtain a
permit to do so must make a declaration of how he acquired the cable,
850., before a JP. 17 85 18 Vict. c. 104. ss. 480, 481 (3)
542, The permit to marine store dealer to cut up cable, 850., must be
advertised before dealer proceeds to act thereon. 17 85 18 Vict. c. 104.
s. 482.
543, Every manufacturer of anchors shall mark them with his name
or initials and a progressive number. 17 85 18 Vict. c. 104. s. 483.
Salvage—Reward for saving Life all over the W'orld, if from
British Ship or Boat.
544, “ Where services are rendered wholly or in part within British
waters in saving life from any British or foreign vessel, or elsewhere in
saving life from any British vessel, there shall be payable to the salvor
by the owner of the vessel, cargo, or apparel saved, a reasonable amount
of salvage, to be determined, in case of dispute, in manner hereinafter
mentioned.
“ (2.) Salvage in respect of the preservation of life, when payable by the
owners of the vessel, shall be payable in priority to all other claims for
salvage.
“ Where the vessel, cargo, and apparel are destroyed, or the value
thereof is insuﬁicient after payment of the actual expenses incurred to
pay the amount of salvage payable in respect of the preservation of
life, the Board of Trade may, in their discretion, award to the salvor out
of the Mercantile Marine Fund such sum as they think ﬁt in whole or
part satisfaction of any amount of salvage so left unpaid.” [17 85 18 Vict.
c. 1.04. ss. 458, 459. Extended by 24 85 25 Vict. c. 10. s. 9 to salvage
from any British ship or boat wheresoe'ver rendered; and if salvage from
foreign vessels a reward is to be given, if service performed in British
waters]
545, “ When it is made to appear to Her Majesty that the
government of any foreign country is willing that salvage should be
awarded by British courts for services rendered in saving life from
ships belonging to that country, when, the ship is beyond the limits of
British jurisdiction, Her Majesty may, by Order in Council, direct that
the provisions of this Part of the Act with reference to salvage of life
shall, subject to any conditions and qualiﬁcations contained in the order,
apply; and those provisions shall accordingly apply to those services as
if they were rendered in saving life from ships within British jurisdic-
tion.” 25 85 26 Vict. c. 63. s. 59.
1894] 57 a as VIcT. 5. 60.—CLAIMS To SALVAGE. 981
546 provides on salvage of cargo or wreck, for compensation to any
person rendering assistance other than the receiver. 17 85 18 Vict. c. 104.
s.458.
547 provides for determination of salvage disputes, whether of life
or property. That if not settled by agreement, arbitration, or otherwise
shall be determined summarily in cases—(a) where parties consent; (6)
where the value of property does not exceed 1,000l. ; (e) in any case
where the amount claimed does not exceed in Great Britain 300l., and
in .Ireland 2001. Subject as aforesaid such disputes shall be determined
by the High Court in England and Ireland, or in Scotland the Court
of Session; but if the claimant does not recover more than 300l. in
Great Britain and 200l. in Ireland, then he is not to have his costs,
unless the court certiﬁes for them. (4) If the dispute is determined
summarily in England it is to be determined by a county court having
Admiralty jurisdiction, in Scotland by the sheriff’s court, in Ireland
by two justices, or a stipendiary magistrate or recorder of any borough
having a recorder, or the chairman of quarter sessions in any county.
17 85 18 Vict. c. 104. s. 460.
548, Disputes as to salvage which are to be determined summarily
shall—(a) where the dispute refers to salvage of wreck, be referred to a
court of arbitrators having jurisdiction near the place where the wreck is
found ; (b) where the dispute relates to salvage in case of services rendered
to any vessel, or to the cargo, or apparel, or in saving life therefrom, be
referred to a court or arbitrators at or near the place where the vessel is
lying, or at or near the port in the United Kingdom into which the
vessel is ﬁrst brought after the occurrence. 17 85 18 Vict. c. 104. s. 460.
549 provides for a right of appeal to any person dissatisﬁed with a
summary decision in Great Britain in like manner as in the case of any
other judgment in an Admiralty or maritime cause of the county court
and sheriff’s court; in Ireland to the High Court, but only if the sum
in dispute exceeds 50l. and notice given within 10 days. 17 85 18 Vict.
c. 104. s. 464.
550 deals with arbitrations in, and appointment of, justices in Ireland
by whom jurisdiction in salvage cases shall be exercised; and they are
to be named by the Lord Chancellor of Ireland.
551 deals with valuation of property by a valuer appointed by the
receiver if there is a dispute as to salvage. 25 85 26 Vict. c. 63. s. 50.
552, Receiver may detain the ship and property liable for salvage due
for assistance or in saving life: or release the ship, 850., on security being
given : or, if the claim for salvage exceed 200l. the courts may decide any
question as to sufficiency of the security. 17 85 18 Vict. c. 104. s. 468.
53, Receiver may sell property known to be detained where amount
not disputed and not paid within 20 days after the amount is due. Where
the amount is disputed, but no appeal lies from the ﬁrst court, and pay-
ment is not made within 20 days after that decision ; where appeal. lies, but
no proceedings are commenced for an appeal, nor payment made within 20
days of the decision of the ﬁrst court. 17 85 18 Vict. c. 104. ss. 469, 470.
554, “ Where services for which salvage is claimed are rendered either
by the commander or crew or part of the crew of any of Her Majesty’s
ships, or of any other ship, and the salvor voluntarily agrees to abandon
his lien upon the ship, cargo, and property alleged to be salved, then upon
the master entering into a written agreement, attested by two witnesses,
to abide the decision of the High Court in England, or of a Vice-
Admiralty Court or Colonial Court of Admiralty, and thereby giving
Agreement as
to salvage.
982 57 a 58 VICT. c.60.—SALVAGE BY H.M.’s srnrs. [1894.
Apportionment
of salvage by
Admiralty
Courts.
Salvage by Her
Majesty’s ships.
security in that behalf to an amount agreed on by the parties to the
agreement, that agreement shall bind the ship, and the cargo and freight
respectively, and the respective owners of the ship, cargo, and freight,
and their respective heirs, executors, and administrators for the salvage
which may be adjudged to be payable in respect of the ship, cargo,
and freight respectively to the extent of the security given.
“ (2.) Any agreement made under this section may be adjudicated on and
enforced in the same manner as a bond executed under the provisions of
this Part of this Act relating to salvage by Her Majesty’s ships; and
on any such agreement being made the salvor and the master shall
respectively make the statements required by this part of this Act to be
made in the case of the bond, but their statements need not be on oath.
(3) The salvor shall transmit the statements made, as soon as practicable,
to the court in which the agreement is to be adjudicated upon.” 17 & 18
Vict. c. 104. s. 497.
555, Where salvage ﬁnally awarded for service rendered in the United
Kingdom is under 200l., and several persons claim to participate in it,
the person liable to pay, may pay the sum to the receiver, who will give
him a certiﬁcate of discharge, and the receiver shall distribute among the
persons entitled to the same on such evidence and in such shares as he
thinks ﬁt, or retain any money to which any absent person appeared to
be entitled: and the receiver’s decision is to be ﬁnal and conclusive.
17 & 18 Vict. c. 104. ss. 466, 467.
556, “ Whenever the aggregate amount of salvage payable in respect
of salvage service rendered in the United Kingdom has been ﬁnally
ascertained and exceeds 200l., and whenever the aggregate amount of
salvage payable in respect of salvage services rendered elsewhere has been
ﬁnally ascertained whatever that amount may be, then, if any delay or
dispute arises as to the apportionment thereof, any court having Admiralty
jurisdiction may cause the same to be apportioned amongst the persons
entitled thereto in such manner as it thinks just, and may for that
purpose, if it thinks ﬁt, appoint any person to carry that apportionment
into effect, and may compel any person in whose hands or under whose
control the amount may be to distribute the same or to bring the same
into court, to be there dealt with as the court may direct, and may for
the purposes aforesaid issue such processes as it thinks ﬁt.” 17 8t 18 Vict.
c.- 498.
55'], Where salvage services are rendered by any ship belonging to
Her Majesty no claim shall be allowed for any loss caused to that ship
or her stores, &c., by reason of those services, and no claim for salvage
services by the commander or crew shall be ﬁnally adjudicated upon
unless the consent of the Admiralty to the prosecution is proved.
558, “ Where services are rendered at any place out of the limits of
the United Kingdom or the four seas adjoining thereto, by the com-
mander or any of the crew of any of Her Majesty’s ships in saving any
vessel, or cargo or property belonging to a vessel, the vessel, cargo, or
property alleged to be saved shall, if the salvor is justiﬁed by the cir-
cumstances of the case in detaining it, be taken to some port where there
is a consular oﬁicer, or a Colonial Court of Admiralty, or a Vice-Ad-
miralty Court.
“ The salvor and the master, or other person in charge of the vessel,
cargo, or property saved shall, within 24 hours after arriving at the port,
each deliver to the consular oﬂicer, or judge of the Colonial Court of
Admiralty or Vice-Admiralty Court, as the case may be, a statement on
oath, specifying so far as possible, and so far as those particulars are
1894.] 57 a 58 mm. c. 60.—BOND FOR SALVAGE; 983
applicable, the particulars set out in the lst part 1 of the 19th Schedule
to this Act : and also in the case of a master or other person his willing-
ness to execute a bond in the form, so far as circumstances will permit,
set out in the 2nd Part of that schedule.” '
1 This schedule requires almost identically the same information to be
given as see. 486, 17 8: 18 Vict. c. 104.
559, “ The bond shall be in such sum as the consular officer or judge Provisions as
thinks sufficient to answer the demand for salvage service, but the sum to 1301161130 be
ﬁxed shall not exceed one half of the amount which in the opinion of executed‘
the consular officer or judge is the value of the property in respect of
which salvage has been rendered.
“ Where the vessel, cargo, or property in respect of which salvage
services are rendered is not owned by persons domiciled in Her Majesty’s
dominions the master shall procure such secmiity for the due performance
of the bond as the consular oﬁicer or judge thinks sufﬁcient to be lodged
with that ofﬁcer or judge, or with that oﬂicer or judge and such other
person jointly as the salvor may appoint.
“ The consular oﬁicer or judge shall ﬁx the amount of the bond
within four days after the receipt of the statements required by this Part
of this Act, but if either of those statements is not delivered within the
time required by this Part of this Act, he may proceed ezv-parte.” (4.) A
consular ofﬁcer may for the purpose of this section take afﬁdavits.
(5.) Nothing in this section shall authorize the consular officer or judge
to require the cargo of any ship to be unladen. 17 8c 18 Vict. c. 104.
ss. 487-489.
560, The consular officer or judge, on ﬁxing the sum to be inserted Execution of
in the bond, shall send notice thereof to the salvor and master, and on 0nd‘
the execution of the bond by the master in the sum ﬁxed in the presence
of the consular officer or judge (who shall attest the same) and upon
delivery thereof to the salvor, and in cases where security is to be lodged,
on that security being duly lodged, the right of the salvor to detain the
vessel, cargo, or property shall cease.
(2.) The bond shall bind the respective owners of the vessel, cargo,
and freight, and their heirs, executors, and administrators, for the salvage
adjudged to be payable in respect of the vessel, cargo, and freight re-
spectively. 17 8t 18 Vict. c. 104. ss. 488-491.
561,-(1) The bond shall be adjudicated on and enforced in the High Enforcement
Court in England, unless the salvor or master agree at the time of the of bond'
execution of the bond that the bond may be adjudicated on and enforced
in any speciﬁed Colonial Court of Admiralty or Vice-Admiralty Court,
but that court shall in that case have the same power and authorities for
the purpose as the High Court in England.
(2.) The High Court in England shall have power to enforce any bond
given in pursuance of this Part of this Act in any Colonial Court of Ad-
miralty or Vice-Admiralty Court in any part of Her Maj esty’s dominions,
and any court exercising Admiralty jurisdiction in Scotland, Ireland, the
Isle of Man, or the Channel Islands, shall assist that court in enforcing
those bonds.
(3.) Where security has been given for the performance of a bond, the
persons with whom the security is lodged shall deal with the same as the
court adjudicating upon the bond direct.
(4.) The consular ofﬁcer or judge shall, at the earliest opportunity,
transmit the statements and documents delivered to him, and the notice of
the sum ﬁxed in the bond, to the High Court in England or the Colonial
Court of Admiralty or Vice-Admiralty Court in which the bond is to
be enforced, as the case may be. 17 8c 18 Vict. c. 104. ss. 492, 493, 490.
984 578558 VIGT.c. 60.—JURIS. OF HIGH COURT. [1894.
Saving for
other salvage
rights.
Jurisdiction of
High Court in
salvage.
562, “ Nothing contained in this Part of this Act shall prejudice the
right of the salvor where salvage services have been rendered by one of
Her Majesty’s ships or by the commander or any of the crew thereof to
proceed for the enforcement of the salvage claim otherwise than in the
manner provided by this Act, but the salvor shall have no right to detain
the vessel, cargo, or property saved unless he elects to proceed under this
Part of the Act.
“ (2) Nothing contained in this Part of this Act shall affect the right of
the salvor where salvage service has been rendered by one of Her
Majesty’s ships, or by the commander or any of the crew thereof in any
case which is not provided for therein." 17 85 18 Vict. c. 104. s. 494.
563, The bond, statement, agreement, or other document relating to
salvage by Her Majesty’s ships is to be exempt from stamp duty, if made
or executed out of the United Kingdom.
564, Punishment for forgery and false representation in any proceed-
ings under this Part of this Act relating to salvage by Her Majesty’s
Ships.
Jurisdiction of High Court in Salvage.
565, “ Subject to the provisions of this Act, the High Court, and in
Scotland the Court of Session, shall have jurisdiction to decide upon all
claims whatsoever relating to salvage, whether the services in respect of I
which salvage is claimed were performed on the high seas or within the
body of any country, or partly on the high seas and partly within the
body of any country, and whether the wreck in respect of which salvage
is claimed is found on the sea or on the land, or partly on the sea and
partly on the land.” 17 85 18 Vict. c. 104. s. 476.
566, Appointment of receiver of wreck to be in the Board of Trade,
and that body to have the general superintendence throughout United
Kingdom of all matters relating to wreck. 17 85 18 Vict. c. 104. s. 439.
567 deals with the fees to be paid to receivers of wreck, and provides
that any dispute as to the amount payable to any receiver is to be settled
by the Board of Trade, whose decision is ﬁnal. 17 85 18 Vict. c. 104.
ss. 455, 456, 457.
568 provides for payment of remuneration by the owner of wrecked
property for services by coast guard in watching and protecting ship-
wrecked property, but remuneration is not due if owner declined their
service, or if salvage has been awarded for those services. 18 85 19 Vict.
c. 91. s. 20.
569, All wrecks being foreign goods brought or coming into the
United Kingdom are to be- subject to the same duties as if the same had
been imported. (2) The Commissioners of Customs, on the revenue being
protected, may allow wrecked goods to be forwarded: or returned. Tariﬁ
Act, and 17 85 18 Vict. c. 104. ss. 499, 500.
5'10 gives the same powers to a sheriff in Scotland as are given by
the Act to a J .P. or court of summary jurisdiction. 17 85 18 Vict.
c. 104. s. 501.
571, The rights, jurisdiction, and powers of the Cinque Ports are saved.
PART 10 (secs. 572 to 633) is a re-enactment of Part 5 of 17 85 18
Vict. c. 104., with portions of 25 85 26 Vict. c. 63. It applies (see
sec. 572) only to the United Kingdom: but to all British and
foreign ships.
1894.] 57 a as war. 0. 60.—PILOT LICENCE. 985
Pilotage.
572. “ This Part of the Act extends to the United Kingdom and the APPlication 0f
Isle of Alan only, but applies to all ships British and foreign.” 17 85 18 Part 10'
Vict. c. 104. s. 330.
573 gives the deﬁnition of “ pilotage authority.”
574 continues existing pilotage authorities’ powers. 17 85 18 Vict.
c. 104. s. 331.
575, Board of Trade may constitute new pilotage authorities; and by
(2) there is to be no compulsory pilotage and no restriction on the powers
of duly qualiﬁed persons to obtain licences as pilots in any new pilotage
districts. 25 and 26 Vict. c. 63. s. 39 (3) ; 52 85 53 Vict. c. 68. s. 2 (b).
576 deals with the transfer of pilotage jurisdiction to local jurisdic-
tion. 25 85 26 Vict. c. 63. 39.
577 deals with direct representation of pilots and shipowners on the
pilotage authority of any district. 52 85 53 Vict. c. 68. s. 2
L; 578, “ The Board of Trade may by Provisional Order exempt the Exemption
master and owners of all ships or of any classes of ships from being from 90m-
obliged to employ pilots in any pilot district or in any part of any pilotage Pllllstory
district, or from being obliged to pay for pilots when not employing them pl 0 age‘
in any district or in any part of any pilotage district, and annex any
terms and conditions to those exemptions. 25 85 26 Vict. c. 63. s. 39
579, Power of Board of Trade to give facilities where the pilotage
is not compulsory with respect to licences, and to prevent the employ-
ment of unqualiﬁed pilots. 25 85 26 Vict. c. 63. s. 39 (5) (6) (7).
580 gives the mode of obtaining Provisional Orders from the Board
of Trade, 850. 25 85 26 Vict. c. 63. s. 40.
581, Every pilotage authority may do the same as in sec. 578
ante.
582 gives pilotage authorities power to make bye-laws for, inter alia,
regulating qualiﬁcations of licensed pilots. 17 85 18 Vict. c. 104. s. 333 ;
52 85 53 Vict. c. 68. s. 7; and 35 85 36 Vict. c. 73. s. 11.
583, Bye-laws are to be conﬁrmed by Order in Council. 17 85 18
Vict. c. 104. ss. 334, 335.
584, The majority of qualiﬁed pilots, local marine board, and
Where no board any number of persons not less than six, being masters,
owners, or insurers of ships, may appeal against any bye-law. l7 & 18
Vict. c. 104. s. 336.
585 provides for periodical returns to be made by every pilotage
authority to the Board of Trade. 17 85 18 Vict. c. 104. ss. 337, 338.
586 deals with licensing of pilots. 17 85 18 Vict. c. 104. s. 349.
587 provides that every qualiﬁed pilot is to have a copy of this Part
of the Act and the bye-laws of his pilotage, and to produce them to
every master of a ship who employs him if asked for. 17 85 18 Vict.
c. 104. s. 350.
588, Pilot licence to be produced to employer if required. 17 85 18
Vict. c. 104. s. 351.
589, A qualiﬁed pilot may be called upon to deliver up his licence;
also the licence of deceased qualiﬁed pilot is to be delivered up to the
pilotage authority who licensed him. 17 & 18 Vict. c. 104. s. 352.
590 imposes a penalty of 501. on a person not entitled to do so who
uses a pilot licence.
986 57 a 58 VICT. c. 60.—RIGHTS OF PILOT. [1894.
591 deals with recovery of pilotage dues; and provides that persons
liable for them may be the owner or master, or consignees or agents
7 __ who have made themselves liable to pay any other charges on account of
the ship in the port of her arrival or discharge if pilotage inwards,
and in port from which she clears out if pilotage outwards. 1'7 &
18 Vict. c. 104. ss. 363, 364. [See sec. 649 post]
592, Pilotage'rates established by law are only to be paid or de-
manded under a penalty of 10l. 17 & 18 Vict. c. 104. s. 358.
593, Pilotage rate for leading ships may be charged as if the pilot
was on board the led ship, if no other qualiﬁed pilot is on board. 17 85
18 Vict. c. 104. s. 356. -
594;, Extra allowance of 108. 6d. a day to pilot taken to sea through
necessity or without his consent out of his pilotage district, inclusive of
the day crossing the limit engaged for and the day of his leaving the,
ship: also including such day as will allow him to return to his own
district, and in the last case his reasonable travelling expenses.
17 8t 18 Vict. c. 104. s. 357.
595, A penalty is incurred by making a false declaration to pilots as
to draught of ship or altering fraudulently marks on ship. 17 & 18
Vict. c. 104. s. 359.
596, An unqualiﬁed pilot may, without incurring any penalty, take
charge of a ship (a) when no qualiﬁed pilot has offered or made a signal
that he will take charge of the ship ; (b) when a ship is in distress or
when master must secure the best assistance that he can; and (c) for
the purpose of changing the moorings of any ship in port, or taking her
into or out of any'dock where that can be done by an unqualiﬁed pilot
under the bye-laws or orders of the harbour master of such port or dock.
17 & 18 Vict. c. 104. s. 362.
597, A qualiﬁed pilot may, at any time, supersede an unqualiﬁed
pilot, the latter being paid out of the qualiﬁed pilot’s dues. Ibz'd. s. 360.
598 renders liable to a penalty of 50l. any unqualiﬁed pilot who
takes charge of a ship after a qualiﬁed pilot has offered to do so. 17 8: 18
Vict. c. 104. s. 361 ; 52 & 53 Vict. c. 68. s. 5.
599, Pilotage authority may grant a pilotage certiﬁcate to a master or
mate of any ship on payment of fees and examination as to competency.
'17 8t 18 Vict. c. 104. ss. 340, 341.
600 gives an appeal by master or mate to the Board of Trade if
a pilotage authority, without reasonable cause, refuse an examination:
or if the examination is unfairly conducted: or the conditions imposed
are unfair: or if the pilotage certiﬁcate has been improperly withdrawn.
l7 & 18 Vict. c. 104. s. 342.
601, The Board of Trade or any pilotage authority ‘may withdraw
any pilotage certiﬁcate for misconduct or incompetency. 17 & 18 Vict.
c. 104. s. 344. ‘
602 provides what fees are to be charged for pilotage certiﬁcates,
and what is to become of the surplus over expenses of examination,
e.g., generally to Pilots’ Superannuation Fund. 17 & 18 Vict. c. 104.
s. 343.
603, Compulsory pilotage, where existing, and exemptions from that
compulsory pilotage, is to remain subject to any alteration by the Board
of Trade or a pilotage authority. (2) The penalty _on themaster of an
1894.] 578558V10T. 5. eo-anes. AS 'ro PILOT FLAG. 987
unexempted ship, who does not hold a pilotage certiﬁcate, if he pilots his
ship within a compulsory pilotage district after a qualiﬁed pilot has offered
by signal or otherwise to take charge of the ship, is double the pilotage
dues that could be demanded for the conduct of the ship. 17 8o 18
Vict. c. 104. s. 353. ' ' -
604, Passenger ships to or from any place in the British Islands to
carry a pilot while within a pilot district. Masters of such ships may
obtain pilotage certiﬁcates. 17 8a 18 Vict. c. 104. ss. 354, 355.
605, Ships passing through a pilotage district on a voyage between
places both situate out of that district need not have a pilot, but the
exemption does not apply to ships loading or discharging at any place
within pilotage district or in a river situate above that district. 25 8o
26 Vict. c. 63. s. 41.
606-610 deal with offences and suspension and dismissals of pilots;
and appeals of pilots. 17 and 18 Vict. c. 104. ss. 365, 366, 367; and
52 81; 53 Vict. c. 68. ss. 3, 4.
611, Pilot boats to be approved by pilotage authority, who may
remove the master if necessary. 17 8c 18 Vict. c. 104. s. 345.
612, Characteristics of pilot boats: All pilot boats are to have the
name of the owner and port she belongs to painted on the stern, with the
number of her licence painted in White letters on each bow: and when
aﬂoat to have at each masthead a large flag of two colours, the upper
horizontal half white, and the lower red. Name, number, and ﬂag are
at all times to be kept clean, uncovered, and distinct. 17 8t 18 Vict.
c. 104. s. 346.
613, Pilot ﬂag when a pilot is on board a ship is to be displayed on
that ship under a penalty of 50l. on pilot; and also when the master or
mate on board holds a pilotage certiﬁcate and the ship is within a com-
pulsory pilot district the ﬂag is to be displayed. 17 8c 18 Vict. c. 104.
s. 347; 52 85 53 Vict. c. 68. s. 9.
614, A penalty is imposed on an ordinary boat displaying a ﬂag like a
pilot ﬂag without having a pilot, or master or mate holding a pilotage
certiﬁcate, on board. 52 8t 53 Vict. c. 68. s. 10.
615, Orders in Council may be made to signify what signals are to be
displayed by ship requiring a pilot: and all masters of ships are to use
those signals and to prevent them from being used for any other purpose.
36 8t 37 Vict. c. 85. ss. 20, 19.
616 reserves power to Trinity House to alter. regulations. 17 8t 18
Vict. c. 104. s. 368.
617 gives power to Trinity House to appoint sub-commissioners for
the examination of pilots. 17 8o 18 Vict. c. 104. s. 369.
618, Licensing of pilots by Trinity House within certain limits and
these districts deﬁned. 17 8t 18 Vict. c. 104. s. 370. .
619 provides for the publishing the names and addresses of licensed
pilots and their districts, e.g. at Trinity House, the Commissioners of
Customs, London, and the Customs House where the pilot is licensed‘;
and that every Trinity House pilot enter into a bond of 109l., and
yearly renew his licence. 17 8t 18 Vict. c. 104. ss. 371, 372, 374.
620, Trinity House pilot’s liability for neglect or want of skill on his
part limited to his lOOl. bond and his pilot dues.‘ 17 8c 18 Vict. c. 104.
s. 373. " ~
988 57 a 58 VICT. c. 60.—TRINITY HOUSE. [1894.
Limitation of
liability of
owner or
master where
pilotage com-
pu1sory.'
621, Power is given to Trinity House to revoke or to suspend the
licence of any‘ Trinity House pilot. 17 85 18 Vict. c. 104. s. 375.
622, Subject to exemptions, pilotage is compulsory in the districts of
Trinity House, e.g., London district and Trinity House outport district.
17 85 18 Vict. c. 104. s. 376.
623, Trinity House must keep a constant and sufficient day and
night supply of qualiﬁed pilots at or near Dnngeness .- always ready to
take charge of ships coming from the westward past Dungeness. 17 85 18
Vict. c. 104. s. 377.
624, The master of any ship coming from the westward past Dunge-
ness, bound to any place in the Thames or Medway (unless she has a
qualiﬁed pilot on board, or is exempt from compulsory pilotage) shall,
on the arrival of the ship off Dungeness, and until she has passed the
south buoy of the Brake, or until a qualiﬁed pilot comes aboard, display
the signal for a pilot, and shall take the ﬁrst pilot offering. 17 85 18
Vict. c. 104. s. 378.
625, Certain British, French, and Channel Islands coasting ships,
when not carrying passengers, may be exempt from compulsory pilotage
in Trinity House London and outport districts from carrying a pilot.
Colonial ships are not mentioned. 17 85 18 Vict. c. 104. s. 379(1) to
626 provides for rates of pilotage demanded by Trinity House pilots :
and that Trinity House may relax this Act (see sec. 592) so far as to
allow their pilots, by their authority, to receive any less sum than that
demanded by law. 17 85 18 Vict. c. 104. s. 380.
627, 628 deal with pilotage dues for foreign ships for port of
London, and their receipt and application. 17 85 18 Vict. c. 104.
ss. 381, 382, 383.
629 provides for the settlement of difference as to draught of any
ship trading to or from the port of London, e.g., Trinity House may
appoint a proper ofﬁcer to measure ship if inward bound before she dis-
charges her cargo; and if outward bound, before she quits her moorings,
the party in the wrong to pay to the oﬁicer measuring the ship, if the
ship be below the entrance to the London Docks, Wapping, ll. 1s., and if
above, 10s. 6d. 17 85 18 Vict. c. 104. s. 384.
630, 631 provide for the payment of a poundage on pilot’s earnings
and a licence fee to Trinity House: secondly, for a penalty on false
account of earnings: and thirdly for the application of the fund.
17 85 18 Vict. c. 104. ss. 385, 386,
632 deals with Hull and Newcastle Trinity Houses.
633, An owner or master of a ship shall not be answerable to any
person whatever for any loss or damage occasioned by the fault or
incapacity of any qualiﬁed pilot acting in charge of that ship within
any district where the employment of a qualiﬁed pilot is compulsory
by law. 17 85 18 Vict. c. 104. s. 388.
PART 11 (secs. 634 to 675) answers to Part 6 of 17 85 18 Vict.
c. 104. Secs. 670 to 675 apply to the colonies.
Lighthouses.
634 deals with management of lighthouses, buoys, and beacons; e.g.,
throughout England and Wales, Channel Islands, and adjacent seas and
1894.] 57 &58VIC’1.‘. 5. 60.—NORTHERN a inisH LIGHTS. 989
islands and at Gibraltar, to be in Trinity House : Throughout Scotland
and adjacent seas and islands and the Isle of Man, in the Northern Light-
houses Commissioners; Throughout Ireland and adjacent seas and islands,
in the Commissioners of Irish Lights. 17 85 18 Vict. c. 104. s. 389.
635, The general lighthouse authorities are to give at all times
to the Board of Trade returns, explanations, and information as to all
lighthouses, buoys, or beacons within their respective areas.
636 gives power to the Board of Trade to inspect and cause inquiry
to be made on complaint of any lighthouse, buoy, or beacon, 85c. 17 85 18
Vict. c. 104. s. 393.
637 gives power of inspection by Trinity House. 17 85 18 Vict.
c. 104. s. 392.
638 deals with the general power of lighthouse authorities to erect, add
to, or vary any lighthouse, buoy, or beacon. 17 85 18 Vict. c. 104. s. 404.
639, A general lighthouse authority may take and purchase land or
may sell land. 17 85 18 Vict. c. 104. s. 412.
640, When the Northern Lighthouses or Irish Lights Commissioners
propose to execute any of their lighthouse powers they are to submit
their scheme to Trinity House, who are to forward their report thereon
to the Board of Trade. 17 85 18 Vict. c. 104. ss. 405-407.
641, Trinity House may, with the sanction of the Board of Trade,
direct the Northern Lighthouses and Irish Lights Commissioners to have
certain works done in continuing a lighthouse, buoy, or beacon, to erect or
alter or remove any such existing, or to vary the character of or mode
of exhibiting lights therein. But before a decision is come to, a written
report is to be sent to the Board of Trade, and the Northern and Irish
Commissioners are to have an opportunity of making any representation
they choose. 17 85 18 Vict. c. 104. ss. 408,409.
642, Additions to lighthouses in the way of fog signals or light sirens
may be treated as a separate lighthouse. 50 85 51 Vict. c. 62. s. 5.
643, Light dues are continued. 17 85 18 Vict. c. 104. s. 396.
644, On completion of a lighthouse, buoy, or beacon, an Order in
Council may ﬁx the dues to be paid in respect thereof in the case of
any ship which passes the same or derives beneﬁt therefrom. These
dues are to be deemed light dues. 17 85 18 Vict. c. 104. s. 410.
645, An Order in Council may alter light dues: but dues of light-
houses 850. existing in 1855 are not to be raised higher than they could
be previous to May in 1855. 17 85 18 Vict. c. 104. s. 397.
646, A general lighthouse authority may, after obtaining an Order in
Council, exempt any ships or classes of ships from any light dues pay-
able to such authority: alter the time, and the mode of paying dues:
and substitute any other dues, by Way of annual payment or otherwise
in respect of any ships or classes of ships. But nothing was to affect
the Shipping Dues Exemption Act, 30 85 31 Vict. c. 15. See 17 85 18
Vict. c. 104. s. 398.
647, A table of all light dues is to be posted up in all customs houses
in the United Kingdom. 17 85 18 Vict. c. 104. s. 399.
648 deals with the application and collection of light dues. 17 & 18
Vict. c. 104. ss. 403, 402.
990 57 a 58 vro'r. c. 60..-PAYMENT LIGHT nuns.‘ [1894.
649 provides who is liable to pay the light dues, e.g., the owner or
master: or such consignees or agents as have paid or made themselves
liable to pay any other charges on account of the ships in the port of
her arrival or discharge. But (2) any consignee or agent, not being
the owner or master, who is hereby made liable for the light dues in
respect of any ship, may out of any moneys received by him on account
of that ship, or belonging to the owner thereof, retain the amount of the
light dues paid by him, with the expenses incurred by his having to pay‘
the light dues. 25 & 26 Vict. c. 63. ss. 44, 45. [Sceseo 591, ante, p. 986.]
"650' gives power to levy a distress on the goods, guns, tackle, or
anything belonging to or on board the ship for light dues unpaid;
and‘ if payment of the .light dues is not made within three days, the
collector may sell the distrained articles. 17 & 18 Vict. c. 104. s. 401.
651, The receipt for light dues must be shown on demand to the
proper ofﬁcer of customs at any port where light dues are payable.
17 8t 18 Vict. o. 104. s. 400.
652 provides that it shall be the duty of the general lighthouse
_ authorities and their oﬂicers to inspect all lighthouses, buoys, and beacons
situate within their area, and all oﬁicers and others having the charge of
lighthouses, buoys, and beacons, are to furnish all information required ;
and further, the general lighthouse authority shall communicate the
result of their inspection to the local lighthouse authority and make
a general report to the Board of Trade. 25 & 26 Vict. c. 63. s. 43.
653, The control of local lighthouse authorities—including the giving
directions to lay down buoys, vary lights, &c.--is given to the general
lighthouse authority of the district ; and if the local lighthouses are not
properly maintained, an Order in Council may transfer them to the
General Authority. 17 & 18 Vict. c. 104. ss. 394, 395.
654;, A local lighthouse authority may surrender or sell any light-
house, buoy, or beacon held by them to that district’s general lighthouse
authority, who are to receive the dues. 17 8t 18 Vict. c. 104. s. 413.
655, If any lighthouse, &c., is erected or reconstructed by a local
lighthouse authority, on application an Order in Council may ﬁx the
dues to be paid to that authority ; and see s. 657. 25 &3 26 Vict. c. 63.
s. 46.
656, All local light dues received are to be applied by the
authority by whom they are levied for the maintenance of the light-
houses, &c., in respect of which the dues are levied, and for no other
purpose: and an account of receipt and expenditure is to be kept.
25 & 26 Vict. c. 63. s. 47.
657, A local lighthouse authority may obtain an Order in Council
to reduce dues if they have not otherwise the power to do so.
658, Expenses of the General Lighthouse Authorities are to be paid
out of the Mercantile Marine Fund. 17 & 18 Vict. c. 104. s. 418 (3).
659. An Order in Council may ﬁx the establishments to be main-
tained by each of the General Lighthouse Authorities, and any increase of
the establishment must be sanctioned by Board of Trade. 17 & 18 Vict.
c. 104. s. 420.
660, 661, An estimate of all expenses to be incurred by a General
Lighthouse Authority in respect of lighthouses, buoys, and beacons,
other than expenses allowed under the Act, is to be sent to Board of
Trade; and advances by the Treasury may be made for extraordinary
1894.] 57 a 58 VICT. 5. 60.—COLONIAL LIGHTHOUSES. 991
expenses, such as reconstruction and repair. 17 & 18 Vict. c. 104.
ss. 422, 423, 424. >
662, Mercantile Marine Fund may be mortgaged by Board of
Trade for extraordinary expenditure on lighthouses, 850. 17 8t 18 Vict.
c. 104. s. 425.
663, And Public Works Loan Commissioners may for extraordinary
lighthouse expenses advance money upon the mortgage of the Mercantile
Marine Fund. 17 8t 18 Vict. c. 104. s. 426.
664, Each of the general lighthouse authorities are to account to
Board of Trade for receipts and expenditure. 17 8: 18 Vict. c. 104.
s. 427.
665, A general lighthouse authority may, with the sanction of the
Board of Trade, grant pensions to their employees. 17 8b 18 Vic. c. 104.
s. 421.
666, 667 deal with offences in connection with and injury to light-
houses, &c. 17 8o 18 Vict. c. 104. ss. 414, 415,416. See 24 85 25 Vict.
c. 97. s. 47.
668 give the persons holding certain oﬂices who are to be Commis-
sioners of Northern Lighthouses. 17 85' 18 Vict. c. 104. s. 390.
669, Trinity House is not to exercise the powers given by this Act
in the Channel Islands (except as to false lights and local lighthouses
surrendered or purchased) without an Order in Council, and no dues
are to be taken there without the consent of the respective States of
Guernsey and Jersey. 17 8t 18 Vict. c 104. s. 411.
Lighthouses, 80., in Colonies.
670,--“(1.) Where any lighthouse, buoy, or beacon has, either before
or after the passing of this Act, been erected or placed on or near the
coasts of any British possession by or with the consent of the legis-
lature of that possession, Her Majesty may by Order in Council ﬁx such‘
dues (in this Act referred to as colonial light dues) to be paid in respect
of that lighthouse, buoy, or beacon by the owner or master of
every ship which passes the same and derives beneﬁt therefrom, as Her
Majesty may deem reasonable, and may by like order increase, diminish,
or repeal such dues, and those dues shall from the time mentioned in
the order be leviable throughout Her Majesty’s dominions.” For this
and following sections see 18 85 19 Vict. c. 91. ss. 2, 3, 4, 5, 6, 7, 8.
“(2.) Colonial light dues shall not be levied in any British possession
unless the legislature of that possession has by address to the Crown,
or by Act or ordinance duly passed, signiﬁed its opinion that the dues
ought to be levied.”
671,-—“(1.) Colonial light dues shall in the United Kingdom be col-
lected and recovered so far as possible as light dues are collected and
recovered under this Part of this Act.
“(2.) Colonial light dues shall in each British possession be collected
by such persons as the Governor of that possession may appoint for the
purpose, and shall be collected by the same means, in the same manner,
and subject to the same conditions so far as circumstances permit, as
light dues under this Part of this Act, or by such other means, in such
other manner, and subject to such other conditions as the legislature of
the possession direct.”
672, “ Colonial light dues levied under this Act shall be paid over to
Her Majesty’s Paymaster-General at such times and in such manner as
Dues for
colonial light-
houses, 850.
Collection and
recovery of
colonial light
dues.
Payment of
colonial light
992 57 a 58 VIOT c. 60.—BOARD TRADE, coLoNIEs. [1894.
dues to Pay-
master-
G eneral .
Application of
colonial light
dues. ‘
Advances for
construction
and repair of
colonial light-
houses, &c.
Accounts of
colonial light
dues.
Prosecution of
offences.
the Board of Trade direct, and shall be applied, paid, and dealt with by
him for the purposes authorized by this Act, in such manner as that
Board direct.”
673. “ Colonial light dues shall, after deducting the expenses of col-
lection, be applied in payment of the expenses incurred in erecting and
maintaining the lighthouse, buoy, or beacon in respect of which they
are levied, and for no other purpose.”
674,-“ The Board of Trade may raise such sums as they think
ﬁt for the purpose of constructing or repairing any lighthouse, buoy, or
beacon in respect of which colonial light dues are levied or are to be
levied on the security of those dues so levied or to be levied.
“ (2.) Any sums so to be raised may be advanced by the Treasury out
of moneys provided by Parliament, or by the Public Works Loan Com-
missioners, or by any other persons, but any such advances shall be made
and secured in the same manner and subject to the same provisions as
similar advances for the purpose of lighthouses in the United Kingdom
under this part of this Act.”
6'75,—-“ Accounts shall be kept of all colonial light dues received
under this Act and of all sums expended in the construction, repair, or
maintenance of the lighthouse, buoy, or beacon in respect of which
those dues are received.
“ (2) These accounts shall be kept in such manner as the Board of
Trade direct, and shall be laid annually before Parliament and audited
in such manner as may be directed by Order in Council.”
PART 12 (secs. 676 to 679). See Part 7 of 17 & l8 Vict. c. 104.
Mercantile Marine Fund.
676, 6'17, Sums payable to the Mercantile Marine Fund; and the
application of the fund. 17 & 18 Vict. c. 104. ss. 417, 418; 45 & 46
Vict. c. 55. s. 3.
678 grants a subsidy from moneys provided by Parliament to the
Mercantile Marine Fund. 45 & 46 Vict. c. 55. s. 5.
6'19, Mercantile Marine Fund accounts to be public accounts, and
to be audited. 45 & 46 Vict. c. 55. s. 7.
PART 13 (secs. 680 to 712), from Part 10, 17 8t 18 Vict. c. 104.
As to application to the colonies, see sec. 711.
Legal Proceedinga—Prosecutwn of Oﬂ’ences.
680, “ Subject to any special provisions of this Act and to the
provisions hereinafter contained with respect to Scotland—
“ (a) An offence under this Act declared to be a misdemeanor shall
be punishable by ﬁne or by imprisonment not exceeding two
years, with or without hard labour, but may, instead of being
prosecuted as a misdemeanor, be prosecuted summarily in
manner provided by the Summary Jurisdiction Acts, and if
so prosecuted shall be punishable only with imprisonment
for a term not exceeding six months with or without hard
labour, or with a ﬁne not exceeding 1001.
1894.] 57 a 58 vioT. c. 60.—LIMITATION or ACTIONS. 993
“ An oﬁence under this Act made punishable with imprisonment
for any term not exceeding six months, with or without
hard labour, or by a ﬁne not exceeding 100l., shall be
prosecuted summarily in manner provided by the Summary
Jurisdiction Acts.
“ Any offence committed, or ﬁne recoverable under a bye-law made
in pursuance of this Act, may be prosecuted or recovered in the same
manner as an offence or ﬁne under this Act.” 17 85 18 Vict. c. 104. s. 518.
681, The Summary Jurisdiction Acts shall, so far as applicable, apply
to any proceeding under this Act before a court of summary urisdiction,
whether connected with an offence punishable on summary conviction
or not, and to the trial of any case before one J .P. where under this
Act such J.P. may try the case.
(2.) Where under this Act any sum may be recovered as a ﬁne,
that sum, if recovered before a court of summary jurisdiction, shall
in England be recovered as a civil debt in manner provided by the
Summary Jurisdiction Acts.
682, Where a person is convicted summarily in England of an Appealon
offence under this Act, and the ﬁne inﬂicted or the sum ordered to be Slimmer)’ con‘
paid exceeds ﬁve pounds in amount, that person may appeal to quarter Vlctlon'
sessions against‘ the conviction in manner provided by the Summary
Jurisdiction Acts.
683,-“ Subject to any special provisions of this ‘Act neither a Limitation of
conviction for an oﬁence nor an order for payment of money shall be tune 1°01‘
made under this Act in any summary proceeding instituted in the United Slimmagy
Kingdom, unless that proceeding is commenced within six months after P Ocee mgs'
the commission of the offence, or after the cause of complaint arises as
the case may be ; or, if both or either of the parties to the proceeding
happen during that time to be out of the United Kingdom, unless the
same is commenced, in the case of a summary conviction within two
months, and in the case of a summary order within six months, after
they both ﬁrst happen to arrive, or be at one time, within the United
Kingdom.
“ (2.) Subject to any special provisions of this Act neither a
conviction for an offence nor an order for payment of money shall be
made under this Act in any summary proceeding instituted in any British
possession, unless that proceeding is commenced within six months after
the commission of the offence, or after the cause of complaint arises as
the case may be; or if both or either of the parties to the proceeding
happen during that time not to be within the jurisdiction of any court
capable of dealing with the case.” “Unless the same is commenced
in the case of a summary conviction within two months, and in the case
of a summary order within six months after they both ﬁrst happen to
arrive or to be at one time within that jurisdiction.”
“ (3.) No law for the time being in force, under any Act, ordinance,
or otherwise, which limits the time within which summary proceedings
may be instituted shall affect any summary proceeding under this Act.”
(4.) Saves proceedings under Public Authorities Protection Act, 1893.
17 85 18 Vict. c. 104. s. 525.
684, “ For the purpose of giving jurisdiction under this Act, every Provisions as
offence shall be deemed to have been committed, and every cause of to jurisdiction
complaint to have arisen, either in the place in which the same actually 1'' case of
- - _ - h- h h if d offences.
was committed or arose, or in any place in w 1c t e 0 en or or
person complained against may be.” 17 85 18 Vict. c. 104. s. 520.
s 2340, 3 R
994 57 a 58 VICT. c. 60.—JURISDICTION. [1894.
Jurisdiction
over ships
lying oil‘ the
coast.
Jurisdiction in
case of offences
on board ship.
Conveyance of
offenders and
witnesses to
the United
Kingdom or
British
possession.
685,--(1.) Where any district within which any court, justice of the
peace, or other magistrate, has jurisdiction, either under this Act or
under any other Act or at common law, for any purpose whatever, is
situated on the coast of any sea, or abutting "on or projecting into any
bay, channel, lake, river, or other navigable water, every such court,
justice, or magistrate, shall have jurisdiction over any vessel being on,
or lying or passing oﬁ, that coast, or being in or near that bay, channel,
lake, river, or navigable water, and over all persons on board that vessel or
for the time being belonging thereto, in the same manner as if the vessel
or persons were within the limits of the original jurisdiction of the court,
justice, or magistrate.
(2.) The jurisdiction under this section shall be in addition to, and not
in derogation of, any jurisdiction or power of a court under the Summary
Jurisdiction Acts. 17 85 18 Vict. c. 104. s. 521.
686,—“ (1.) Where any person, being a British subject, is charged
with having committed any oﬁence on board any British ship on the high
seas, or in any foreign port or harbour or on board any foreign ship to
which he does not belong, or, not being a British subject, is charged
with having committed any offence on board any British ship on the high
seas, and that person is found within the jurisdiction of any court in
Her Majesty’s dominions which would have had cognizance of the
oﬁence if it had been committed on board aBritish ship within the limits
of its ordinary jurisdiction, that court shall have jurisdiction to try the
offence as if it had been so committed.
“ Nothing in this section shall affect the Admiralty Offences Colonial
Act, 1849.” [12 & 13 Vict. c. 96. An Act for the suppression of
piracies and treasons, &c., and that all persons accused of offences
committed on the high seas might be tried in any colony in the same
manner as if the offence had been committed on the waters within
the local jurisdiction of the court] 18 80 19 Vict. c. 91. s. 21 ; 30 8t 31
Vict. c. 124. s. 11.
687 provides that all offences committed by British seamen aﬂoat
out of Her Majesty’s dominions, who at the time of the offence were
employed on any British ship, or within three months previously, shall be
tried in the same manner as if those oﬁences were committed within the
jurisdiction of Her Maj esty’s Admiralty.
688 gives power to arrest any foreign ship that has occasioned
damage to any property belonging to Her Majesty or to any of Her
Majesty’s subjects.
689,—“ Whenever any complaint is made to any British consular oﬂicer
(0.) That any offence again st property or person has been committed
at any place either ashore or aﬂoat out of Her Majesty’s
dominions, by any master, seaman, or apprentice who at the
time when the offence was committed, or within three months
before that time, was employed in a British ship; or
(5.) That any offence on the high seas has been committed by any
master, seaman, or apprentice belonging to any British ship,
that consular ofﬁcer may inquire into the case upon oath, and may,
if the case so requires, take any steps in his power for the purpose of
placing the oﬁender under the necessary restraint, and of sending him as
soon as practicable in safe custody to the United Kingdom or to any
British possession in which there is a court capable of taking cognizance
of the offence, in any ship belonging to Her Majesty or to any of her
subjects, to be there proceeded against according to law.
1894.] 57 a 58 vIcT. 5. 60.—PRODUCTION OF EVIDENCE. 995
(2.) The consular officer may order the master of any ship belonging
to any subject of Her Majesty, bound to the United Kingdom-or to such
British possession as aforesaid, to receive and atford a passage and sub-
sistence during the voyage to any such offender as aforesaid and to the
witnesses, so that the master be not required to receive more than one
olfender for every 100 tons of the ship’s registered tonnage, or more than
one witness for every 50 tons of that tonnage; and the consular oﬁicer
shall endorse upon the agreement of the ship such particulars with
respect to any offenders sent in her as the Board of Trade require.”
Then, by sub-sec. (3), on arrival of the ship in the United Kingdom
or any such aforesaid British possession the offender is to be given into the
custody of some police officer, who shall take the offender before some
J.P. or magistrate capable of dealing with the matter, and such J.P. or
magistrate shall deal with the matter as in cases of offences committed
on the high seas.
(4.) If a master when required does not receive the offender and
witnesses, and does not deliver the offender as aforesaid, he is liable to a
50l. ﬁne. 17 85 I8 Vict. c. 104. s. 268.
(5.) The expense of imprisonment and conveyance of any offender
and the witnesses other than in the ship to which they belong, where
not paid as part of the costs of the prosecution, shall be paid out of
money provided by Parliament.
690, Where a case of death happens on heard any foreign-going
British ship the superintendent at the port where the crew of the ship is
discharged shall inquire into the cause of death and make an entry in
the oi‘ﬁcial log as to whether in his opinion the statement in the log is
true or not.
(2.) The superintendent is for this purpose to have the powers of a
Board of Trade inspector, and if it appears to him the death has been
caused by violence or other improper means, he shall either report the
matter to the Board of Trade, or, if the emergency require, take imme-
diate steps to bring the offender or offenders to justice.
(3.) The section does not apply except in Scotland to ﬁshing
boats, nor (6) to ships registered in a British possession when these
ships are within the jurisdiction of the Government of that possession;
nor (0) to pleasure yachts or to ships belonging to any of the three
general lighthouse authorities. 17 8c 18 Vict. c. 104. s. 269.
691, Whenever in the course of any legal proceedings instituted in
any part of Her Majesty’s dominions before any judge or magistrate,
or before any person authorised by law or by consent of parties to
receive evidence, the testimony of any witness is required in relation to
the subject-matter of that proceeding, then upon due proof, if the proceed-
ing is instituted in the United Kingdom, that the witness cannot be found
in that kingdom, or if in any British possession, that he cannot be found
in that possession, any deposition that the witness may have previously
made on oath, in relation to the same subject-matter, before any justice
or magistrate in Her Majesty’s dominions, or any British consular
officer elsewhere, shall be admissible in evidence. Provided that :
(a) if the deposition was made in the United Kingdom, it shall
not be admissible in any proceeding instituted in the United
Kingdom; and
(b) if the deposition was made in any British possession it shall not
be admissible in any‘ proceeding instituted in that British
possession; and
(c) if the proceeding is criminal it shall not be admissible unless
it was made in the presence of the person accused.
Depositions to
be received in
evidence when
witness cannot
be produced.
3R2
996 .57 8t 58 VICT. c. 60.—RIGHT TO DETAIN SHIP. [1894.
(2.) A deposition so made shall be authenticated by the signature of
the judge, magistrate, or consular ofﬁcer before whom it is made ; and the
judge, magistrate, or consular oﬂicer shall certify, if the fact is so, that
the accused was present at the taking thereof.
And then, by sub-sec. (3), the signature or official character of the
judge, &c., signing need not be proved, and in criminal proceedings the
certiﬁcate under this section is sufficient evidence of the accused having
been present, '
“ Nothing herein contained shall affect any case in which depo-
sitions taken in any proceedings are rendered admissible in evidence by
any Act of Parliament, or by any Act or ordinance of the legislature
of any colony, so far as regards that colony, or interfere with the power
of any legislature to make those depositions admissible in evidence, or
to interfere with the practice of any court in which depositions not
authenticated as hereinbefore mentioned are admissible.” 17 & 18 Vict.
c. 104. s. 270.
692, Where under this Act a ship is to be or may be detained,
any commissioned ofﬁcer on full pay in the naval or military service of
Her Majesty, or any officer of the Board of Trade, or any oﬂicer of
customs, or any British consular officer, may detain the ship; and if
after detention the ship goes to sea before it is released by competent
authority, the master, as also the owner, or any person who sends the
ship to sea, if privy to the offence, shall be liable to a ﬁne of IOOZ.
(2.) Where a ship so proceeding to sea takes to sea, when on board in
the execution of his duty, any officer authorized to detain the ship, or
any surveyor, &c., the owner and master shall each be liable to pay all
the expenses of and incident to the oﬁicer or surveyor being taken
to sea, and also a ﬁne not exceeding 1001.; or, if the oﬁence is not
prosecuted in a summary manner, not exceeding 101. per diem until the
officer, &c., returns, or until he can leave the ship to return; and the
expenses may be recovered in the same manner as the ﬁne.
(3.) Where under this Act a ship is detained, an ofﬁcer of customs
shall, and where she may be detained an oﬂicer of customs ma Y, refuse
to clear that ship outwards or to grant a transire to that ship.
(4.) Where any provision of this Act provides that a ship may be
detained until any document is produced by the proper oﬁ'icer, “proper
ofﬁcer ” shall mean, unless the context otherwise requires, the oﬁicer able
to grant a clearance or transire to such ship. 39 8t 40 Vict. c. 80. s. 34.
693, Where any court, J .P., or other magistrate has power to make
an order directing payment to be made of any seaman’s wages, ﬁnes,
or other sums of money, then, if the party so directed to pay the same
is the master or owner of a ship, and the same is not paid at the
time and in the manner prescribed in the order, the court, J.P., or
magistrate who made the order may, in addition to any other powers
they may have for the purpose of compelling payment, direct the
amount remaining unpaid to be levied by distress, or poinding, and
sale of the ship, her tackle, furniture, and apparel. See 17 8t 18 Vict.
c. 104. ss. 400, 401.
694:, Where a document is required to be attested the document
may be proved by the evidence of any person able to bear witness to
the requisite facts without calling the attesting witness. Hn'd. s. 526.
_ 695, Where a document by this Act is declared to be admissible
in evidence, production from the proper custody is suiﬁcient, and the
document is to be admissible in evidence in any court or before any
person having by law or consent authority to receive evidence, and’
1894.] 57 a 58 vioT. 5. 60.—PENALTIES AND cosTs. 997
subject to all just exceptions, shall be evidence of the matters stated
therein.
(2.) A copy of any such document or extract therefrom shall be
admissible if it purported to be a signed and certiﬁed or true copy by
the oﬁicer to whose custody the original document was entrusted, and
that officer shall, on payment of not exceeding 4d. for every folio of
ninety words, furnish a certiﬁed copy ; but on payment of Is. a person
can have a certiﬁed copy of the particulars entered by the registrar in
the register book on the registry of the ship, together with a statement
showing the ownership of the ship at the time being; and (b) a certiﬁed
copy of any declaration or document a copy of which is made evidence
by this Act. See ante, sec. 64, and 17 85 18 Vict. c. 104. s. 107; 18 85 19
Vict. c. 91. s. 15.
The section continues: (3.)—If any ofﬁcer wilfully certiﬁes any
document as being a true copy or extract, knowing the same not to be a
true copy, such offence is a misdemeanor punishable with 18 months’
imprisonment; and If any person forges the seal, stamp, or signature
of any document to which this section applies, or tenders in evidence any
such document with a false or counterfeit seal, stamp, or signature
knowing the same to be false, he shall for each offence be guilty of felony.
Punishment, not exceeding seven years’ penal servitude, or imprisonment
for two years with or without hard labour.
696 deals with service of documents, and imposes a penalty of IOL
on any person obstructing the service of any document relating to the
detention of any ship as unseaworthy, and if the owner or master is
privy to the obstruction he is guilty of a misdemeanor. 39 85 40 Vict.
c. 80. s. 35.
697, Any exception, exemption, proviso, excuse, or qualiﬁcation in rela-
tion to any offence under the Act may be proved by the defendant, but
need not be speciﬁed or negatived in any information or complaint.
698, Any declaration required to be taken before a J.P. or any
particular officer may be taken before a commissioner for oaths.
699 provides for the application of penalties and costs of prosecution.
Where any court, J .P., or other magistrate imposes a ﬁne under this
Act, for which no speciﬁc application is herein provided, that court
J.P., or magistrate may, if they think ﬁt, direct the whole or any part
of the ﬁne to be applied in compensating any person for any wrong
or damage which he may have sustained by the act or default in
respect of which the ﬁne is imposed, or to be applied in or towards
the expenses of the proceedings.
(2) Subject to any directions under this section, or to any speciﬁc
application provided under this Act, all ﬁnes under this Act shall,
notwithstanding anything in any other Act—-
(a) If recovered in the United Kingdom be paid into the Exchequer
in such manner as the Treasury may direct, and be carried to
and form part of the consolidated fund.
(6) If recovered in any British possession, be paid over into the
public treasury of that possession, and form part of the
public revenue thereof.
700, Where an offence under this Act is prosecuted as a misdemeanor
the court before whom the offence is prosecuted may in England make
the same allowances and order payment of the same costs and expenses
as if the offence were a felony.
And in any other part of Her Majesty’s dominions may make such
allowances and order payment of such costs and expenses as are payable
Colony.
Expenses of
prosecution of
misdemeanor.
' 998
57 & 58 VICT. c. 60.—BOARD OF TRADE. [1894.
Prosecution of
oﬁ'ences in
British
possessions.
Application of
Part 13.
Returns as to
merchant
shipping to
Board of Trade.
or allowable upon the trial of any misdemeanor or under any law for
the time being in force therein.
701, Such costs incidental to any prosecution for felony or misdemeanor
as are by law payable out of any county or local rate shall, where the felony
or misdemeanor has been committed within the jurisdiction of the
Admiralty of England, be paid in the same manner and subject to
the same regulations as if these crimes had been committed in the county
where the’ same is heard, or if heard at the Central Criminal Court, as
if the same had been committed in the County of London, and all sums
properly paid out of any county or other local rate in respect of those costs
and expenses shall be repaid out of the money provided by Parliament.
702-710 deal with the procedure in Scotland. 17 & 18 Vict.
c. 104. ss. 530 to 543.
Prosecution of Oﬂ’ences in the Colonies.
‘111, Any offence under this Act shall, in any British possession, be
punishable by any court or magistrate by whom an offence of a like
character is ordinarily punishable, or in such other manner as may be
determined by any Act or ordinance having the force of law in that
possession.
712, This Part of the Act shall, except where otherwise provided,
apply to the whole of Her Majesty’s dominions.
PART 14 (secs. 713 to 748) follows closely Part 1 of 17 85 18 Vict.
c. 104. The powers of the colonies are dealt with in secs. 735, 736.
General Control of Board of Trade.
713, The Board of Trade, except where otherwise provided in this
Act or other Acts in force, or so far as those Acts relate to revenue, are to
have the general superintendence of all matters relating to merchant
shipping and seamen. 17 & 18 Vict. c. 104. s. 6.
714;, All consular oﬁicers and ofﬁcers of customs abroad, and all
local marine boards and superintendents, shall make and send to the
Board of Trade such returns or reports on any matter relating to
British merchant shipping or seamen as the Board may require.
.715, All superintendents, when required, are to produce to the Board
of Trade all oﬂicial log-books and other documents which are delivered
to them.
I116, All fees, &c., under 2nd, 4th, and 5th Parts are to be carried to
the account of the Mercantile Marine Fund. (2) All ﬁnes coming into
the hands of the Board of Trade are to be paid into the exchequer of
the Treasury.
717, The Board may take any legal proceedings in the name of any
of their oﬁ’icers.
I118, Expenses incurred by Commissioners of Customs in conducting
suits or prosecutions are to be paid out of the revenues of customs, but the
Board of Trade may, with the consent of the Treasury, repay out of the
Mercantile Marine Fund all or any part of such expenses so paid as are
under this Act chargeable on that fund.
719, 720 deal with the proof of Board of Trade documents ; i.e., that
they be admlsslble 1n evidence; and with the power of the Board of Trade
to prescribe the forms to be used. 17 8t 18 Vict. c. 104. ss. 7, 8.
1894.] 57 a 58 vicT. 5. 60.—ENFORGING ACT. 999
721 enacts that the following instruments shall be exempt from stamp
duty : Instruments to carry into effect the lst Part of the Act ; those used
by the Board of Trade to carry into eﬁect 2nd, 5th, 11th, and 12th Parts;
and any instruments which are required to be in a form approved by
the Board of Trade, if made in that form. 17 8o 18 Vict. c. 104. ss. 9, 10.
722 provides for offences as to use of forms; z'.e., that if any person
forges: assists in: or procures to be forged, the seal, or any other dis-
tinguishing mark of the Board of Trade on any form issued by the
Board of Trade; or (b) fraudulently alters: or procures to be altered any
such form, that person is guilty of a misdemeanor.
(2.) If a person, (a) when a form approved by the Board of Trade
under the 2nd Part of this Act, required to be used, uses without reason-
able cause a form not purporting to be a form so approved: or (b)
prints, sells, or uses any document purporting to be a form approved by
the Board of Trade, knowing the same not to be the form approved for
the time being, or not having been prepared or issued by the Board of
Trade, that person shall be liable to a ﬁne of 10l.
723. Where any of the following ofﬁcers, namely,—
Any officer of the Board of Trade,
Any commissioned oﬁicer of any of Her Majesty’s ships on
full pay,
Any British consular officer,
The Registrar-General of Shipping and Seamen or his
assistant,
Any chief officer of customs in any place in Her Majesty’s
dominions, or
Any superintendent
has reason to suspect that the provisions of this Act, or any law for the
time being in force relating to merchant seamen or navigation, is not
complied with, that officer may (a) require the owner or master or any
of the crew of any British ship to produce any oﬁicial logsbooks or
otherv documents relating to the crew or any member thereof in their
respective possession or control; (1)) require any such master to pro-
duce a list of all persons on board his ship, and take copies of the
oﬁicial log-books or documents or of any part thereof; (0) muster the
crew of any ship; and (d) summon the master to appear and give
any explanation concerning the ship or her crew, or the official log-
books or documents produced or required to be produced. If any
person, on being duly required by an oﬁ’icer authorized under this section,
fails, without reasonable cause, to produce to that oﬁicer any such oﬁicial
log-book or document as he is required to produce under this section, or
refuses to allow the same to be inspected or copied, or impedes any
muster of the crew required under this section, or refuses or neglects to
give any explanation which he is required under this section to give, or
knowingly misleads or deceives’ any officer authorized under this section
to demand any such explanation, that person shall for each offence be
liable to a ﬁne not exceeding 20l. 17 85 18 Vict. c. 104. s. 13.
724:. Board of Trade may, at such ports as they think ﬁt, appoint
either generally or for special purposes a surveyor of ships, who may be
appointed either as a shipwright surveyor, or as an engineer surveyor, or
as both.
Laws,” or “ Dominion of the Sea,” at p. 297.]
(2.) Board of Trade may appoint a Surveyor~General of ships for the
United Kingdom, and may remove any surveyors of ships : ﬁx their
remuneration ; and make regulations as to their duties.
Powers for
seeing that Act
is complied
with.
[See Ord. Louis XIV., 1681, translated in “ Treatise of Sea ‘
1000 57 a as VICT. c. 60.—POWER TO ALTER ACT. [1894.
Appointment of
surveyor in
colonies.
Exemption
from rates.
Power of
colonial legis-
latures to alter
provisions of
Act.
(4.) A surveyor of ships demanding or receiving any fee or gratuity
otherwise than by direction of the Board of Trade is liable to a ﬁne
of 50l. 17 & 18 Vict. c. 104. ss. 305-8.
725, Power is given to surveyors for purpose of surveying ships to
go on board any steamship at all reasonable times. 17 & 18 Vict. c. 104.
s. 306, and ss. 15, 16.
726, Surveyors of ships are to make returns to the Board of Trade
as to the build, dimensions, draught, burden, rate of sailing, room for
fuel, and the nature and particulars of machinery and equipments of
ships surveyed by them; and (2) the owner, master, and engineer of the
ship so surveyed shall, on demand, give to the surveyors all such infor-
mation and assistance within his power as they require for the purpose
of those returns : the penalty for failing to give information and assistance
being (3) a ﬁne of 5l. for each oﬁence. 17 85 18 Vict. c. 104. s. 321.
727, The Governor of a British possession may appoint and remove
surveyors of ships within the limits of the possession, for any purposes of
this Act to be carried into effect in that possession.
728, Board of Trade may appoint any person as an inspector to make
a report (a) as to accident or damage to a ship: (6) whether the pro—
visions of the Act have been complied with: whether the hull and
machinery of any steamship are suflicient and in good condition.
729 deals with the powers of such inspectors.
d 730, Penalty for obstructing inspectors in the execution of their
uty.
731, “ All lighthouses, buoys, beacons, and all light dues and other
rates, fees, or payments accruing to or forming part of the Mercantile
Marine Fund, and all premises or property belonging to or occupied by
any of the General Lighthouse Authorities or by the Board of Trade,
which are used or applied for the purposes of any of the services for
which those dues, rates, fees and payments are received, and all instru-
ments or writings used by or under the direction of any of the General
Lighthouse Authorities or of the Board of Trade in carrying on those
services, shall be exempt from all public, parochial, and local taxes,
duties, and rates of every kind.”
732, All vessels used by any of the General Lighthouse Authorities
or the Board of Trade are to be exempt in the United Kingdom from
harbour dues.
733 deals with registration of private code of signals.
734, An Order in Council may, when any foreign country desires it,
direct any provisions of this Act to apply to the ships of that country, and
to the owners, masters, seamen, and apprentices of those ships, when not
locally within their own Government’s jurisdiction, in the same manner
as if those ships were British ships.
Power of Colonial Legislatures.
735, “ The legislature of any British possession may, by any Act or
ordinance conﬁrmed by Her Majesty in Council, repeal wholly or in part
any provisions of this Act (other than those of the 3rd Part thereof
which relate to emigrant ships), relating to ships registered in that
possession ; but any such Act or ordinance shall not take effect until the
approval of Her Majesty has been proclaimed in the possession, or until
1894.] 57 a 58 V101‘. c. 50.-con. OOASTING REGS. 1001
such time thereafter as may be ﬁxed by the Act or ordinance for the
purpose.
“ Where any Act or ordinance of the legislature of a British
possession has repealed in whole or in part, as respects that possession,
any provision of the Acts repealed by this Act, that Act or ordinance
shall have the same eﬁect in relation to the corresponding provisions
of this Act as it had in relation to the provision repealed by this
Act.” 17 85 18 Vict. c. 104. s. 547.
736. “The legislature of a British possession may by any Act or
ordinance regulate the coasting trade of that British possession,
subject in every case to the following conditions :—
“ (a.) The Act or ordinance shall contain a suspending clause pro-
viding that the Act or ordinance shall not come into
operation until Her Majesty’s pleasure thereon has been
publicly signiﬁed in the British possession in which it has
been passed.
“ The Act or ordinance shall treat all British ships (including
the ships of any other British possession) in exactly the
same manner as ships of the British possession in which it
is made.
“ (a.) \Vhere by treaty made before the passing of the Merchant
Shipping (Colonial) Act, 1869 (that is to say before the
13th May, 1869), Her Majesty has agreed to grant to
any ships of any foreign state any rights or privileges in
respect of the coasting trade of any British possession,
those rights and privileges shall be enjoyed by those ships
for so long as Her Majesty has already agreed or may
hereafter agree to grant the same, anything in the Act or
ordinance to the contrary notwithstanding.” 32 85 33 Vict.
c. 11. s. 4.
737 deals with foreign places where Her Majesty has jurisdiction,
and provides that where there is no consular officer, then such things as
may be done by, to, or before a consular officer, may be done, 850., by
such ofﬁcer as an Order in Council may direct.
738 gives power to alter Orders in Council made under this or any
amending Act; the new Order in Council being laid before Parliament
within one month, and published in London Gazette.
739, Where by this Act any notice, authority, order, direction or
other communication is required or authorized to be given or made by
the Board of Trade or the Commissioners of Customs or the Governor
of a British possession, or to any person not being an oﬁicer of such
Board, or Commissioners, or Governor, the same shall be given or made
in writing. And (2) such notice may be transmitted by post.
740, Where a document is required to be published in the London
Gazette, it will suﬁice if notice of it is published in accordance with the
(Statutory) Rules Publication Act, 1893, 56 85 57 Vict. c. 66. [i.e, that
a notice in the Gazette of the document having been made and where
copies of it can be obtained is to be a suﬁicient compliance with the Act]
741, “This Act shall not, except where specially provided, apply to
ships belonging to Her Majesty.”
742, The terms used in this Act are deﬁned, and inter alia “ a Colonial
Court of Admiralty” is to have the same meaning as in the Colonial
Courts of Admiralty Act, 1890, 53 8: 54 Vict. c. 27 ; “chief oﬁicer of
Regulation of
coasting trade
by colonial
legislature.
32 85 33 Vict.
c. 11.
1002
58 a 59 VICT. 5. 94-501.. BOUNDARIES. [1895.
Application of
Act to certain
ﬁshing vessels.
Alteration of
boundaries
of colony.
customs ” includes the collector, superintendent, principal coast ofﬁcer, or
other chief ofﬁcer of customs at each port; and “ superintendent” shall,
so far as respects a British possession, include any shipping master or
other officer discharging in that possession the duties of a superintendent.
743, The Act extends to ships propelled by electricity or other
mechanical power, with such modiﬁcations as the Board of Trade may
prescribe.
744. Ships engaged in the whale, seal, walrus, or Newfoundland cod
ﬁsheries shall be deemed to be foreign-going ships for the purpose of
this Act, and not ﬁshing boats, with the exception of ships engaged in
the Newfoundland cod ﬁsheries which belong to ports in Canada or
.Newfoundland.
‘145 repealed certain Acts, the repealed Acts being given in Schedule
22. But sub-sec. (f) provided that “ Nothing in this Act shall affect the
Behring Sea Award Act, 1894, and that Act shall have effect as if this
Act had not passed.”
‘146 saved the Chinese Passengers Act, 1855.
747 gives the title, i.e., “ Merchant Shipping Act, 1894.”
74:8,‘ The Act came into operation on lst January 1895.
The Schedules contain rules and regulations, as: 1st Schedule, forms of
mortgages, 85o; 2nd, rules for measurement of tonnage; 3rd, fees for
measurement ; 4th, fees for examination; 5th, regulations to be observed
re anti-scorbutics ; 6th, regulations to be observed as to accommodation
on board ship ; 7th, constitution of local marine boards; 8th, re birth at
sea; 9th, fees for passenger steamer certiﬁcate; 10th, regulations as
to number of passengers on emigrant ships; 11th, accommodation of
steerage passengers; 12th, water and provisions ; 13th, carriage of horses
and cattle in emigrant ships; 14th, forms under Part 3 (Passenger and
Emigrant Ships); 15th, form for entry of ﬁshing boats in register;
16th, fees for inspection of lights and fog signals; 17th, life-saving
appliances—committee; 18th, precaution as to grain cargo; 19th, state-
ments in salvage by Her Majesty’s ships; 20th, fees and remuneration
of receivers; 21st, pilotage rates ; 22nd, Acts repealed.
58 85 59 Vict. c. 34.
An Act to provide in certain cases for the Alteration of
the Boundaries of Colonies. [6th July 1895.]
"E it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :—-—
1,—--(l.) Where the boundaries of a colony have either before or
after the passing of this Act been altered by Her Majesty the Queen
by Order in Council or letters patent, the boundaries as so altered shall
be, and be deemed to have been from the date of the alteration, the
boundaries of the colony.
(2.) Provided that the consent of a self-governing colony shall be
required for the alteration of the boundaries thereof.
1895.] 59 vicT. Sess. 2. 5. 3.—OANADIAN SENATE. 1003
(3.) In this Act “self-governing colony ” means any of the colonies
speciﬁed in the schedule to this Act.

2, This Act may be cited as the Colonial Boundaries Act, 1895. Short title.
S C H E D U L E.
SELF-GOVERNING CoLoN1Es.
Canada. ‘Western Australia.
Newfoundland. Tasmania.
New South ‘Vales. New Zealand.
Victoria. Cape of Good Hope.
South Australia. Natal.
Queensland.
59 VICT. (1895) Sess. 2. c. 3.
An Act for removing Doubts as to the Validity
of an Act passed by the Parliament of the
Dominion of Canada respecting the Deputy-
Speaker of the Senate.
_ [5th September 1895.]
WHEREAS the Parliament of Canada have passed
an Act intituled “ An Act respecting the Speaker
of the Senate,” and providing for the appointment of a
deputy during the illness or absence of the Speaker of
the Senate, and containing a suspending clause to the
effect that the Act should not come into force until Her
Majesty’s pleasure thereon has been signiﬁed by procla-
mation in the Canada Gazette :
And whereas doubts have arisen as to the power of
the Parliament of Canada to pass that Act, and it is
expedient to remove those doubts.
Be it therefore enacted by the Queen’s most Excel-
lent Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows :
1, The Act of the Parliament of Canada passed in the Conﬁrmation
session held in the ﬁfty-seventh and ﬁfty-eighth years of 255C with
Her Majesty’s reign, entituled “ An Act respecting the $55,553,
anadian
Senate.
1004; .59 vro'r. Sess. 2. c’. 3.—DEPUTY SPEAKER. [1895.
Short title.
Speaker of the Senate,” shall be deemed to be valid,
and to have been valid, as from the date at which the
royal assent was given thereto by the Governor-General
of the Dominion of Canada.
2. This Act may ‘be cited as the Canadian Speaker
(Appointment of Deputy) Act, 1895, Session 2.

( 1005 )
APPENDIX B.

THE JUDICIAL COMMITTEE.
[The Acts compared with the Revised Statutes]
2 a 5 WILL. 4.. (1882) c. 92.
[The whole Act, except see. 3, repealed by S. L. R. Act, 1874, c. 35.
Sec. 3 to “thirty-three,” and the word “ that” wherever it occurs, re-
pealed by S. L. R. Act, 1888, c. 57.]
An Act 1 for Transferring the Powers of the High Court
of Delegates, both in Ecclesiastical and Maritime
Causes, to Her Majesty in Council.
[7th Aug. 1832.]
3, It shall be lawful to and for every person who might heretofore,
by virtue of either of the said recited Acts [25 H. 8. c. 19.; 8 Eliz.
c. 5.], have appealed or made suit to His Majesty in his High Court
of Chancery, to appeal or make suit to the King’s Majesty, his heirs
or successors, in Council, within such time, in such manner, and
subject to such rules, orders, and regulations for the due and more
convenient proceeding, as shall seem meet and necessary, and upon
such security, if any, as His Majesty, his heirs and successors, shall
from time to time by Order in Council direct; and the King’s Majesty,
his heirs and successors, in Council, shall thereupon have power to
proceed to hear and determine every appeal and suit so to be made by
virtue of this Act, and to make all such judgments, orders, and decrees in
the matter of such appeal or suit as might heretofore have been made by
His Majesty’s commissioners appointed by virtue of either of the herein-
before recited Acts, if this Act had not been passed; and every such
judgment, order, and decree so to be made by the King’s Majesty, his
heirs and successors, shall have such and the like force and eﬁect in all
respects whatsoever as the same respectively would have had if made and
pronounced by the foresaid High Court of Delegates; and every such
judgment, order, and decree shall be ﬁnal and deﬁnitive, and no com-
mission shall hereafter be granted or authorized to review any judgment
or decree to be made by virtue of this Act.
Chalmers’ Opns. v.; Scobell’s Acts,
1649, c. 21. p. 13). In 1660 [O. in
C. 4 July and Ls.P. 1 Dee] the
1 This Act repealed 25 H. 8. c. 19.
and 8 Eliz. c. 5., the former of which
established the High Court of Dele-
gates. During the ﬁrst age of the
colonies, 1606 to 1640, the Privy
Council both legislatively and execu-
tively superintended the colonies.
In 1640 an age of reform began, and
Parliament exercised Privy Council
jurisdiction (16 Cha. 1. c. 10.; 1
king’s ancient jurisdiction was
restored, and a Council of Trade
and Plantations was established.
This Council was abolished in 1674
[or 21 Dec. 1677], when the whole
affairs of trade and the colonies were
placed under a Committee of the
Powers of the
High Court of
Delegates
transferred to
the King in
Council from
1st February
1833.
1006 2 a 3 WILL. 4. c. 92.--EARLY CASES IN re. [1832.
Privy Council. In 1696 a Board
of Trade and Plantations was ap
pointed to deal with the distress of
British Commerce ; and distress in
the colonies. Soon after 1714 the
colonial Acts to be sanctioned be-
came very numerous, and a Standing
Committee was appointed. About
this time attacks were commenced on
the colonial charters. In 1690 the
charter of Maryland was assailed.
In 1711 the Pennsylvania charter
was attacked. In 1717 the charter
of the Bahamas was questioned. In
1752 the charter of Georgia was
surrendered. By O. in C. 11 March
1752, the Lords Commissioners
were directed to be careful in the
selection of Governors, &c., and to
draw up draft Commissions, War-
rants, and Instructions for the same.
[Col. Off. Lib.] In 1770, on the loss
of the 13 American colonies, the
Board of Trade and Plantations
was abolished (1 Chalmers’ Opns.
xiv.; 22 Geo. 3. c. 82.). In 1786
[O. in C. 24 and 25 Aug] a Com-
mittee of the Privy Council was
_ appointed to consider all matters
relating to trade and foreign planta-
tions. It appeared that the best
men would not act, and therefore
petitions to review the decisions of
this Committee were frequent.
Going back to the earliest period,
the jurisdiction of the Privy
Council seems to have commenced
by Admiralty causes (17 Rich. 2.
1393-4; 3 Rot. Parl. No. 49,
p. 322) and also by prize appeals
under treaties, such as that between
Henry 7. and Louis 12. in 14.98. See
12 Rymer 690 ; Lindo 21. Rodney,
2 Douglas 613-616 ; The Fabius,
2 C. Rob. 245. The Privy
Council also dealt with questions
of boundaries [as in a case like the
claim to the Marches of Wales]:
the limits of the fens of Sutton,
parcel of the possessions of the
Bishop of Ely: the Queen of Scots’
design: the Essex disaster; and
claims to an island, as the Earl of
Derby’s claim to the Isle of Man.
A controversy between two pro-
vinces: and claims to a province
[Lord Baltimore’s in 1690], also
came before it: New Hampshire
case [Livius 'v. Wentworth], Bel~
knap’s Hist. New Hamp. 347. This
case is said to have been heard
before the Lords of Trade 10 May,
and reheard before the Lords of
Committee of the Privy Council,
29 July; reported 26 Aug; O. in
C. 8 Oct. 1773: and that the judg-
ment was printed. Other early
cases were an appeal from Jersey,
13 May 1572, Macq. H. L. 686:
Gordon 1:. Lowther, from Barbados,
1726, 2 Ld. Raym. 1447 : Magoons
o. Dumaresque, ibid. 1448. See
also Lord Hardwicke, L.C., in
Penn '0. Lord Baltimore, 1750,
1 Ves. Sr. 446; and the cases New
York 1). New Hampshire, 20 July
1764, Belknap’s New Hamp. 325:
Earl Cardigan’s claim to the Island
of St. Vincent, 1764: The Massa-
chusetts Bay Co. 'v. The King,
1764 [the charter is to be seen at
Colonial Oﬁ‘ice Library], and Beck-
ford v. Wade, 1805, 17 Vesey 87.
3 a 4 WILL. 4. (1833) c. 41.
Preamble and sec. 1, to the words “ of the same that,” repealed by
S. L. R. Act, 1890 (53 8; 54 Vict. c. 33.). S. L. R. Act (No. 2), 1888
(51 8t 52 Vict. c. 57.), repealed in sec. 1 the words “the Lord High
Chancellor of Great Britain for the time being.” And from “Lord
Chief Justice,” where those words ﬁrst occur, to “bankruptcy.” And
from “or held” to “Britain.” And the words “ and be it further
enacted that,” and “ And be it enacted that,” wherever they occur
(except in sec. 31), and the word “ that” wherever it occurs with
reference to the introductory words so repealed. And, in sec. 31, the
Words “and be it enacted.” Secs. 1 and 30 amended by 50 8b 51 Vict.
1833.] 3 a 4 WILL. 4. c. 41.—JUD. COMMITTEE ACT. 1.007
c. 70. ss. 3, 4. Sec. 2 was repealed by 53 65 54 Vict. c. 27. [ante,
p. 902]. Sec. 5 was amended and repealed in part by 14 & 15 Vict.
c. 83. s. 16, which made the quorum 3. Secs. 22, 25, 26, and 27 repealed
by S. L. R. Act, 1861 (24 85 25 Vict. c. 101.). Sec. 28 repealed in part
by 6 857 Vict. c. 38. s. 6. Sec. 29 repealed by S. L. R. Act, 1875
(38 8t 39 Vict. c. 66).
An Act for the better Administration of Justice in His
Majesty’s Privy Council. [141th August 1833.]
HEREAS by virtue of an Act passed in a session of Parliament
of the second and third years of the reign of His present
Majesty, intituled “ An Act for transferring the Powers of the High Court
of Delegates, both in Ecclesiastical and Maritime Causes, to His Majesty
in Council,” it was enacted, that from and after the ﬁrst day of February
one thousand eight hundred and thirty-three it should be lawful for every
person who might theretofore, by virtue either of an Act passed in the
twenty-ﬁfth year of the reign of King Henry the Eighth, intituled “ The
Submission of the Clergy and Restraint of Appeals,” or of an Act passed
in the eighth year of the reign of Queen Elizabeth, intituled “ For the
avoiding of tedious Suits in Civil and Marine Causes,” have appealed or
made suit to His Majesty in his High Court of Chancery, to appeal or
make suit to the King’s Majesty, his heirs or successors, in Council,
Within such time, in such manner, and subject to such rules, orders, and
regulations for the due and more convenient proceeding, as should seem
meet and necessary, and upon such security, if any, as His Majesty, his
heirs and successors, should from time to time by Order in Council
direct : And whereas, by letters patent under the Great Seal of Great
Britain, certain persons, members of His Majesty’s Privy Council,
together with others, being judges and Barons of His Majesty’s courts
of Record at Westminster, have been from time to time appointed to be
His Majesty’s Commissioners for receiving, hearing, and determining
appeals from His Majesty’s Courts of Admiralty in causes of prize : And
whereas, from the decisions of various Courts of Judicature in the East
Indies, and in the plantations, colonies, and other dominions of His
Majesty abroad, an appeal lies to His Majesty in Council : And whereas
matters of appeal or petition to His Majesty in Council have usually been
heard before a Committee of the whole of His Majesty’s Privy Council,
who have made a report to His Majesty in Council, whereupon the ﬁnal
judgment or determination hath been given by His Majesty : And
whereas it is expedient to make certain provisions for the more effectual
hearing and reporting on appeals to His Majesty in Council and on other
matters, and to. give such powers and jurisdiction to His Majesty in
Council as herein-after mentioned : Be it therefore enacted by the King’s
most Excellent Majesty, by and with the advice and consent of the Lords
spiritual and temporal, and Commons, in this present Parliament as-
sembled, and by the authority of the same. [The above repealed; also
the following words in brackets]
The President for the time being of His Majesty’s Privy Council, [the
Lord High Chancellor of Great Britain for the time being], and such of
the members of His Majesty’s Privy Council as shall from time to time
hold any of the oﬁices following, that is to say, the office of Lord Keeper or
First Lord Commissioner of the Great Seal of Great Britain, [Lord Chief
Justice or Judge of the Court of King’s Bench, Master of the Rolls, Vice-
Chancellor of En gland, Lord Chief Justice or Judge of the Court of Com-
mon Pleas, Lord Chief Baron or Baron of the Court of Exchequer, Judge
of the Prerogative Court of the Lord Archbishop of Canterbury, Judge of
“ The Judicial
Committee Act,
1833.”
2 8c 3 W. 4.
c. 92.
25 H. 8.
c. 19.
8 Eliz. c. 5-
Certain per-
sons to form
a committee,
to be styled
“The Judicial
Committee of
the Privy
Council.”
1008 3 a 4 WILL. 4. c..41.-PRELIM. REQUISITES. [1,833.
the High Court of Admiralty, and Chief Judge of the Court in Bankruptcy]
and also all persons, members of His Majesty’s Privy Council, who
shall have been President thereof [or held the office of Lord Chancellor
of Great Britain], or shall have held any of the other oﬂices herein-
before mentioned, shall form a Committee of His Majesty’s said Privy
Council, and shall be styled “ The Judicial Committee of the Privy
Council”: Provided nevertheless, that it shall be lawful for His
Majesty from time to time, as and when he shall think ﬁt, by his sign
manual, to appoint any two other persons, being Privy Councillors, to
be members of the said Committee. _
[50 & 51 Vict. (1887) c. 70., by sec. 3, provides that the Judicial Com-
mittee “ Shall include such members of Her Majesty’s Privy Council as
are for the time being holding or have held any of the oﬁices in the
Appellate Jurisdiction Act, 1876, and this Act described as high
judicial offices.” See these Acts, post]
2, Repealed by the Colonial Courts of Admiralty Act, 1890. See
proviso to repeal ante, pp. 900-902.
All appeals 3, All appeals1 or complaints in the nature of appeals whatever,
from SePt'ence which either by virtue of this Act, or of any law, statute, or custom, may
350mg ﬁdge' be brought before His Majesty or His Majesty in Council from or in
reigned by respect of the determination, sentence, rule, or order of any court, judge,
His Majesty to or judicial oﬁicer, and all such appeals as are now pending and unheard,
the Committee, shall from and after the passing of this Act he referred by His Majesty
to report to the said Judicial Committee of his Privy Council, and such appeals,
thereon‘ causes, and matters shall be heard by the said Judicial Committee, and
a report or recommendation thereon shall be made to His Majesty in
Council for his decision thereon as heretofore, in the same manner and
form as has been heretofore the custom with respect to matters referred
by His Majesty to the whole of his Privy Council or a committee
thereof (the nature of such report or recommendation being always
stated in open court).
1 The time for an application to Judicial Committee. Execu-
be made to the colonial court for
leave to appeal from a ﬁnal judg-
ment is regulated in every colony
by the charter of their courts of
justice: instructions to the Gover-
nor: Orders of Her Majesty in
Council : or by the colon y’s own ordi-
nances. The limit of time ranges
from 14 days [West India Islands]
to six months [India], counted
from the day the judgment or
the decree complained of was pro-
nounced. (2) The subject-matter
of the appeal must be of a certain
value, running from 300l. in Bar-
bados, to, as in India, 10,000
rupees; or concern some Civil
Right, Duty, or Fee. (3) Security
to the satisfaction of the colonial
court must be given for the due
prosecution of the appeal; and to
meet any costs ordered by the
tion may he stayed on terms: or
the respondent may be ordered to
give security. (5) The appeal must
be prosecuted within a year. (6)
'When any colonial court allows an
appeal to the Privy Council, the
registrar or oﬁicer having the
custody of the records of the colo-
nial court is to send with all de-
spatch one certiﬁed copy of the
record in each cause to the registrar
of Her Majesty’s Privy Council.
Regulations as to this are printed at
length in the London Gazette, July
8, 1853, p. 1911, and 31 March
1855; and (7) on special grounds
leave may be given to appeal
from interlocutory judgments. (8)
The Judicial Committee may give
special leave to appeal. See such
cases, ante, p. 410 et seq.
I have looked up the Instruc-
1833.] 3 85 4 WILL. 4. c. 41.—APPEALS FROM COLS.
1009
tions to Governors: Charters: Ordi-
nances: and Orders in Council
respectively of the following colo-
nies, and “ P.” means that a peti-
tion for leave to appeal must be
presented to the colonial court
within the time given: and “V.”
means that the value of the subject-
matter of the appeal must be over
the amount given.
[The following are notes which
may be useful in putting enquirers I
on the track; but in any question
of difficulty it would be well to
personally see Mr. George Pearson
Wheeler, of the Judicial Depart-
ment of the Privy Council, Down-
ing Street, who has been there for
just twenty years, and has the
practice by heart]
Aden, Gulf of, through Bombay.
See Bengal.
Africa (Continent and Islands),
V. 100l., or Secretary of State’s
order. Appeal may be to any
prescribed S. C. of any African
possession of H. M. and S. C. of
Bombay [but not Cape Colony nor
Natal until provision is made by
the legislatures], and thence on
same conditions and amount as
any other decision of the same
court to the Judicial Commit-
tee. Consular Courts O. in C.
15 Oct. 1889, ss. 21, 82, Lon. Gaz.
5557; 18 H.’s T. 1. This O. in
C. excludes any place within- the
territorial jurisdiction of the courts
of any African possession of
H. M., or of the courts of any
possession of any other non-African
power, and the territories of
Morocco, Tunis, Liberia, Zanzibar,
South African Republic, Orange
Free State, and places controlled
by Egypt, and any place in which
any other O. in C. under the
Foreign Jurisdiction Act is in
force. But may extend to H. M.
Protectorate of Niger Districts, or
future protectorate, or to territories
under the International Association
of the Congo, and under the
Government of the Free States
subject to the Berlin Convention
of 16 Dec. 1884. See therefore as
S 2340.
to P. and V. West African Settle-
ments (Sierra Leone), Gold Coast,
and Bombay (Bengal) ; also 0. in
C. 17 July 1893, St. R. 308:
“Natives of any protectorate of
H. M. which is outside any local
jurisdiction constituted under the
Order of 1889 shall, when within
that local jurisdiction, be deemed to
be British protected persons within
the meaning of that Order.” See
O. in C. 28 June 1892, Foreigners
J usticiable, St. R. 486.
A jmere, same as Bengal. Cert.
of Commr. that s. 596 of C. of C.
P. xiv. of 1882 is complied with.
Antigua. See Leeward Is-
lands.
Anstralid—N. S. Wales, P. 14
days, V. 2,000l. Ch. of J.
13 Oct. 1823, St. of N.S.W.,
pp. 2193, 33ln. But by O. in C.
9 June 1860, appeala-ble value is
500l. And the Judicial Committee
would admit an appeal the sub-
ject-matter of which is over 500l.
See also Cl. Col. Law, 619, 636.
Queensland, P. 14 days, V. 500l.
O. in C. 30 June 1860; 24 85 25
Vict. c. 44. An appeal as to a
vacancy in the Legislative Council
is given to Her Majesty in Coun-
cil, 31 Vict. No. 38. s. 24.
South Australia, P. 14 days, V.
500l.: Laws of South Australia,
1855—6, No. 31, s. 19, p. 202. See
also O. in C. 9 June 1860, super-
seding Local Act, 7 Will. 4.; Cl.
Col. Law, 725; 4 85 5 Will. 4.
c. 95.;
Tasmania, Van Diemen’s Land-,P.
14 days, V. 1,000l. Ch. J. 4 March
1831 ; 9 Geo. 4. c. 83.;Cl. Col. Law,
653, 661; but O. in C. V. 500l.
Victoria, the old Port Phillip, se-
vered from N.S. W’, 13 85 14 Vict.
c. 59. P. 14 days, V. 500l. O. in C.
9 June 1860; 4 Vict. St. p. 2701.
Western Australia, P. 14 days, V.
500]. 24 Vict. No. 15, s. 29; St.
of W. Australia, p. 52.
Bahamas, P. 14 days; C1. C01.
Law, 378, gives V. 5001.; but see
1 Bah. L. p. 224.
Barbados, P. 14 days, V. 300l.
Royal Instructions; C1. C01. Laws,
35
5 85 6 Vict. c. 61. '
1010 '
[1838;
3 8t 4 WILL. 4. c. 41,-—APPEALS TO P. C. ' '
193. See 1 Bar. Law 38, Wind-
ward Islands Court of Appeal Act,
31 January 1857.
Basutoland disannexed, but
Cape of Good Hope law to be in
force, Pro. 1884.
Bechuanaland Protectorate.—
North ofB. B., P. 14 days, V. 500l.
See for old boundaries Os. in C.
27 January 1885, 17 H.’s T. 27;
30 June 1890, St. R., 18 H.’s T.
156. These revoked by O. in C.
9 May 1891, 19 H.’s T. 30, gave
the limits as “ The parts of South
Africa bounded by British Bechu-
analand, the German Protectorate,
the rivers Chobe and Zambesi, the
Portuguese possessions, and the
South African Republic.” Sec. 7
gave courts of B. B. as to matters
occurring within the limits of the
order the same jurisdiction, civil,
criminal, original, and appellate, as
they possess in respect to matters
occurring within B. B., and appeals
therefrom may be had and prose-
cuted as if the judgment had been
given under the ordinary j urisdic-
tion of the court. The B. B. O.
in C. gave a direct appeal to P. C.
See British Bechuanaland.
Bengal, P. 6 months. 13 Geo. 3.
c. 63. s. 18 ; Charter of Fort Wil-
liam, 26 March 1774; Rules and
Orders, S. Ct. Bengal, pp. 30, 31.
V. by charter 1,000 pagodas, the
value of which was 3% Rs. (Kelly’s
“Cambist,” pp. 88, 90), the sicca
rupee being then Worth about
28. 6d. Now petition for leave to
appeal to be presented within six
months, V. 10,000 Rs.; O. in C.
10 April 1838; Letters Patent,
constituting H. C. 14 May 1862,
re-enacted in O. in C. 28 Dec.
1865, were subject to the rules
then in force ; thus the time in the
charter is brought in. With re-
gard to the following, the Letters
Patent, as regards appeals, were
identical: Bengal, Madras, Bom-
bag, North - West Territory,
Singapore, and Malacca. The
L.s P. also gave power to the
High Court in civil causes to allow
an appeal when it thought the case
in question was ‘one ﬁt for an
appeal; and in criminal appeals
when a point of law had been re-
served; and the High Court con-
sidered the point was one ﬁt for
appeal; [See these Letters Patent
in “ O.s in C. 1866,” in the Inner
Temple] As to the charters of
Bombay and Madras, see for the
latter, “Charters H. Ct. Mad.”
pp. 109, HO, and as to the former
it is as near as may be a transcript
of the charter of Bengal. See also
Code of C. P. xiv. of 1882, ss. 595—
599; 21 Geo. 3. c. 70., and Regu-
lations xvi. s. 1797; 37 Geo. 3.
c. 142; 24 8t 25 Vict. c. 104; Limi-
tation Act xv. of 1877, s. 6 : Chow-
dry 4;. Mullick, 1 M00. Ind. App.
p. 361: Nathoobhoy Ramdass o.
Mooljee Madowdass, 2 M00. Ind.
App. p. 177; East India Coy. v.
Syed Ally, 7 M00. lnd. App. 568.
Berbice. See British Guiana.
Bermuda, P. 20 days, V. from
Ct. Error 500l., from Chan. Ct. P.
14 days, 300/. Bermuda Laws,
8 Act 1814, s. 9, and Act 1876, No.
382, respectively.
Bombay, P. 6 months, V. 10,000
Rs. Charter and Letters Pat. 28
Dec. 1865. See Bengal.
Borneo. See Straits Settle-
ments.
British Bechuanaland. Ap-
peals direct from Chief Magis,
P. 14 days, V. 500l. 50, 51, and
.52 of Cape Ch. of J us. to apply.
Appeals to be allowed to H. M. in
C. in all cases in which appeals are
allowed from S. C. Cape of Good
Hope. B. B. Procl. 1885, 1889,
pp. 15, 43. Laws in force in Cape
Colony proclaimed in B. B
6 Oct. 1885. Iln'd. No. 2,
and No. 9, 1886. B. B. annexed
to Cape Colony, 9 Nov. 1895.
British Central Africa Pro-
tectorate (late Nyassaland).—New
name, F. O. letter 22 Feb. 1893,
19 H.’s T. 8.
British Columbia. V. Probably
300l., same as Vancouver.
British Guiana, includes Ber—
bice, Demerara, Essequebo, P. 14
days, V. 5001. O. in C. 23 April
1885,.
1833J
1011
3 & 4 WILL. 4. c. 41.—APPEALS TO P. C.
and 20 June, 1831; C1. C01. Law,
271, 280; 1 Laws B. G. 35.
British Honduras. See Hon-
duras.
British New Guinea, in civil
actions V. 100l.; in Admiralty
actions irrespective of value; an
appeal is given to S. C. Queens-
land, Brisbane, and thence to
P. C. in the same manner as any
other decision of such Court. Us
in C. 1888, Par. Pap. [C. 5664];
18 H.’s T. 697; 24 Nov. 1891,
St. R. 23. See Australia.
British North Borneo.
Strait Settlements. _
Brunei (Borneo), P. 15 days,
V. 500l. from S. C. Straits Settle-
ments. 0. in C. 22 Nov. 1890,
art. 64 ; St. R. 685.
Burmah, appeals from Ron-
goon, V. 10,000 Rs. See Bengal.
Cert. from Recorder that s. 596 of
C. of C. of P. xiv. 1882 complied
with.
Canada. Sp. leave See the
Provinces. 54 Vict. (Can.) 0. 6.,
appeal allowed to I". C. on ﬁnan-
cial awards.
Cape of Good Hope, P. 14 days,
V. 500l. Cl. Col. Law, 487; St.
Law Cape, 1714 to 1853, p. 220.
Ceylon, P. 14 days, V. 500l.
Charter of Justice; C1. C01. Law,
563.
China, Japan, and Corea,
through S. C. Shanghai, which see.
Constantinople, S. C. C. See
Turkey.
Consular Courts, generally P.
15 days, V. 500l. O. in C.
27 January 1860. See infra and
Foreign Jurisdiction Act, 1890,
See
post.
Corea, through S. C. Shanghai.
O. in C. 26 June 1884, 17 H.’s T.
282; O. in C. 3 April 1886, Lon.
Gaz. 1655.
Cyprus, P. 14 days, V. 500l.
O. in C. 15 July, 1881, Lon. Gaz.
3589 ; C. in C. 30 Nov. 1882, art.
41, 18 H.’s T. 327. See C. O. and
Laws, 1878-92, p. 42.
Dominica. See Leeward Islands,
or may be direct. See Antigua
Acts, 1864, p. 284.
East Indies. See Bengal.
Egypt, P. 15 days, V. 500l.,
from H. B. M. C. C. to S. C. C.
Constantinople, and after a hearing
before the judge and additional
judge an appeal lies to P. C. O.
in C. 10 Nov. 1866; O. in C.
12 Dec. 1873; 14 H.’s T., 561,
617; and O. in C. 8 March 1895,
No. 139. See Turkey.
Falkland Islands. Appeal from
Magis. Ct. to Governor in C.; P.
14 days, and V. 100l. Ord. 1853,
No. 7 ; F. Islands Laws, 1884.
Fifi, P. 14 days, V. 500l. C).
in C. 22 February 1878 ; Fiji Ord.
1877-8. See also 0. in C. 15 March,
I893; 8611312.
Fort PVilliam. See Bengal.
Fort St. George, Madras. See
Bengal and illadras.
Gambia, through App. Ct.
Sierra Leone. 0. in C. 24 Nov.
1891, St. R. 24. See West
A friean Settlements.
Gambia Territories, adjacent.
See 0. in C. 23 Nov. 1893, St.
R. 311.
Gibraltar, P. within 14 days, V.
7,500 pesetas, or 300l., or, if less,
leave is in the discretion of the
Court. Ch. of Justice, 1 Sept. 1830;
C1. C01. Law 688; Gib. Laws 1888,
ss. 40-45. p. 512; and O. in C. 17
Nov. 1888, art. 42.
Gold Coast, P. 14 days, V. 500l.
O. in C. Oct. 23, 1877, Lon. Gaz.,
5850.
Gold Coast Territories, adja-
cent to. O. in C. 29 Dec. 1887;
17 H.’s T. 127. Appeal to Gold
Coast, which see.
Grenada. See Windward Is-
lands.
Grenadines. See I bid.
Griqualand West. Appeal
direct from High Court, Ordinance
No. 9 of 1875, or through the S. C.
Cape, which see. Gri. West Laws
1. vol. 13.; 2. vol. 163. Annexed
to the Cape, 1880, by Act 1877,
No. 39. But Van Zyl, J .P. Cape,
p. 527, says there is only one
appeal, i.e., through the S. C.
Cape Colony.
Guernsey, V. land 10l. a year,
3 s 2
1012
[1833.
3 8t 4 WILL. 4. c. 41.—APPEALS TO P. C.
or personalty of 200l. O. in C.
13 May 1823; C1. C01. Law, 708.
Honduras, British, P. within 8
days, V. 500l., through the S. Ct.
Jamaica, but may appeal direct.
British Honduras Laws, pp. 26,
571; Cl. Col. Law 337; 44 85 45
Vict. c. 36. O. in C. 30 Nov. 1882.
Halifax. Vice-Admiralty Court.
43 Geo. 3. 1813, c. 96.
Hong Kong. Instructions to
Lt.-Gov., 23 Dec. 1845; J ur. (for
C. and J.) to cease. O. in C.
9 March 1865, s. 160; 12 H.’s T.
316.
Isle of Man, P. 6 months. Lex
Scripta, 276; Mill. 245; I. M. St.
156,107.
Jamaica, P. within 14 days, V.
300l. O. in C. 14 April 1851,
Lon. Gaz.. 1039.
Japan, P. 15 days, V. $2,500.
O. in C. 9 March 1865, as altered
by O. in C. 14 Aug. 1878, creating
Her Britannic Majesty’s Court for
Japan, 12 8t 14 H.’s T. 281, 246.
Appeals through S. C. Shanghai.
Jersey (Channel Islands). P.
at time of judgment, V. land 5l. a
year, personalty 80l. ; or real pro-
perty 5 livres tournois a year, per-
sonalty 300 livres tournois; Le
Cras’ Laws, 83 ; Code of Laws, 168.
Labuan. See Straits Settle-
ments.
Lagos. Separate col. L. P.
13 Jan. 1886. P. 14 days, V.
500l. O. in C. 5 July 1889;
Lagos Laws, 953.
Lagos Territories, adjacent.
O. in C. 29 Dec. 1887; 17 H.’s
T. 128.
Leeward Islands, P. 14 days,
V. 300l. O. in C. 8 June 1854.
These colonies include Antigua,
Monserrat, St. Christopher, N eois,
Dominica, and Virgin Islands.
Federated for general government
purposes in 1871. 34 85 35 Vict.
c. 107. Right to appeal from the
Court of Appeal was given by 13
& 14 Vict. c. 15. s. 6 on such terms
as O. in C. shall direct.
Madras. Charter, 1800. P.
6 months, V. 10,000 Rs. Letters
Patent, 28 Dec. 1865. See Bengal.
Malacca. See Straits Settle-
ments.
Malta, P. 14 days, V. 1,000l.
Charter Justice, 18 Dec. 1824.
Man, Isle of. See Isle, &c.
Manitoba. O. in C.; Off. Can.
Gaz. Ap. 30, 1892, p. 2044. P.
within 14 days, V. 3001.
Mashonaland, same as next.
Matabeleland—If V. 100l. can
appeal to High Court, and from
H. C. to S. C. Cape Colony.
Thence to P. C. in the same
manner and on the same conditions
as S. C. appeals. O. in C. 18 July
1894, St. R. 133.
ZPIauritius, P. 14 days, V. 4,000
piastres, or 1,0001. Ch. of J .,
13 April 1831; Cl. Col. Law,
586,594.
Monserrat. See Leeward Is-
lands.
Morocco, through S. C. Gibral-
tar. O. in C. 28 Nov. 1889,
art. 105. No Crim. App. without
leave, art. 44; 18 H.’s T. 871,
L011. Gaz., 7163.
ZlIuscat, through S. C. Bombay.
See Bengal.
lVatal, P. 14 days, V. 500l.
Natal Laws, 1843-70, Vol. 1,
p. 226; Vol. 2 p. 1358; O. in C.
19 July 1870.
Nevis. See Leeward Islands.
New Brunswick, P. 14 days,
V. 300l. O. in C. 27 Nov.
1852 ; Lon. Gaz., p. 3575.
Newfoundland, V. 500l. Ct.
of Jus., 19 Sept. 1825 ; 5 Geo. 4.
c. 67. s. 20.
New Guinea. See British
N G.
New South Wales. See Aus-
tralia.
New Zealand. P. within 14 clear
days, V. 500l. O. in C. Nov. 30,
1864; O. in C. 16 May 1871;
N. Z. S. Ct. Practice, p. 204.
iViger Protectorate. F. O.
Letter, Lon. Gaz., June 5, 1858,
p. 2581. See Africa.
North- West Territories O. in C. Can. Gaz. March 5, 1892,
p. 1646. P. within 14 days, V.
300l.
North- Western Provinces (In-
1833.]
1013
3 & 4 WILL. 4. c. 41.—APPEALS TO P. O.
dia), P. Within 6 months, V.
10,000 Rs, subject to such rules
and orders as are in force. Letters
Patent, 17 March 1866. See
Bengal.
Nova Scotia, P. 14 days, V.
3001. O. in C. 20 March 1863.
Ngassaland, to be known as
British Central Africa Protec-
torate. F. O. L. 22 Feb. 1893;
St. R.
Ontario, V. $4,000. Ante, pp.
396, 399. 54 Vict. (Ont) c. 2.,
appeal allowed to P. O. on ﬁnancial
matters.
Ottoman Dominions. See Tur-
keg.
Oudh. Same as Ajmere and
Bengal.
Pacific Islands. See Western
Paciﬁc.
Persia, P. 15 days, V. 500l.,
from O.-Gr. O. O. in O. 13 Dec.
1889, art. 230, Lon. Gaz. 7459;
18 H.’s T. 945; O. in O. 3 Oct.
1895; St. R. N0. 408.
Persian Coasts and Islands,
through H. O. Bombay. O. in O.
13 Dec. 1889, arts. 23, 28; L011.
Gaz. 7459; 18 H.’s T. 1024.
Pondoland, annexed to Cape.
O. in C. 7 June 1894.
Prince Edward Island, ante,
p. 396. B. Ins. 13 Dec. 1838.
Prince of Wales Island. See
Straits Settlements.
Punjab. Same as Ajmere and
Bengal.
Quebec (Low. Can), V. 500l.
Ante, p. 397. 54 Vict. (Que)
c. 4., appeal allowed to P. O. on
ﬁnancial matters.
Queensland, P. 14 days, V. 500l.
See Australia. 0. in C. 30 June
1860. _
Rodrigues. See M auritius.
St. Christopher. See Leeward
Islands.
St. Helena, P. 14 days, V. 500l.
Security for costs to be entered
into within three months. See 0.
in O. 13 Feb. 1839; Par. Pap.
1857—8, No. 388.
St. Lucia. See Windward
Islands. _
St. Vincent. Ibid.
Sarawak [Borneo]. See Straits
Settlements. -
Seychelles. See Mauritius.
Shanghai, P. 15 days, V.
82,500. Security for costs within
one month. Discretion in the
court to suspend execution. O. in
O. 9 March 1865, s. 131; 12 H.’s
T. 281, 311.
Siam, P. Within 15 days, V.
500l. O. in O. 28 Nov. 1889, s.
64; 18 H.’s T. 1092. Through
Straits Settlements.
Sierra Leone and Gambia. See
West African Settlements.
Somali Coast and Gulf of Aden,
through S. O. Bombay. 0. in O.
13 Dec. 1889; 18 H.’s T. 91.
South Australia. See
tralia.
Straits Settlements, P. Within 6
months, V. $1,500. Ordinance N o.
12 of 1879, s. 41. They include
Singapore, Malacca, Labuan,
Borneo [British JVorth Borneo,
Brunei, and Sarawak], Prince of
Wales Island. [See 37 81; 38
Vict. C. 38.; 28 8D 29 Vict. (3. 115.;
and 21 & 22 Vict. c. 106.];
Siam included by Foreign Juris-
diction Act, 1856 (19 and 20
Vict. c. 113.) and Chiengmai,
Lahon, .and Lambouchi included
by O. in O. Lon. Gaz., 4 July
1884,p.3049.
Tasmania. See Australia.
Tonga. See Western Paciﬁc
Islands, and
Trinidad and Tobago, V. 5001.
[Pro. 19 June 1813]; O.’s in G.
April 23 and June 30, 1831.
Turkey.— Constantinople is the
S. O. O., and under Foreign J uris-
diction Act, P. within 15 days,
V. 500l. O. in O. 30 Nov. 1864;
O. in O. Dec. 12, 1873; 14 H.’s T.
557. Security for costs to be given
within one month from the ﬁling
of the motion paper for leave to
appeal; then, and not otherwise, the
S. Consular Ct. shall give leave to
appeal. In other cases the Court
may give leave to appeal if it con-
siders it just and expedient to do
so. The Order of 1873 includes
Adrianople, Brussa, Burgas,
Aus-
1014
[1833.
3 8t 4 WILL. 4' c. 41.—-APPEALS TO P. C.
His Majesty
may refer any
other matters
to Committee.
N o matter to
Dardanelles, Enos, Gallipoli,
Ghio, Ineboli, Lcnznos, Panorma,
Rhodes, Rodosto, Egg/pt, and ex-
tended by O. in C. 3 May 1882,
Lon. Gaz. 2209, to seas of Azod,
Adriatic, Egean, or Black Seas,
and Mediterranean. The Otto-
man Dominions (Courts) Order
(O. in C. 8 March 1895, No. 139,
Lon. Gaz. 1545) gives a rehearing
before a judge and additional
judge, except for Egyptian cases,
and then an appeal to P. C.
Egyptian appeals are to be heard
before the judge and additional
judge, and thence to P. C. See
‘Brunt ,
Turks and Caicos Islands were
severed from the Bahamas and
given to Jamaica. Charter, 1848 ;
O. in C. 1873, and 36 Vict. c. 6.
P. within 30 days. Laws of Turks
and Caicos Islands, p. 80.
Uganda Protectorate, com—
prising Usoga, Ungoro, Ankoli,
Kohl. F. O. L. 18 June 1894.
Vancouver Island, now part of
British Columbia. By O. in C.
4 April 1856, it was P. 21 days,
V. 300l.
Van Diemen’s Land. See Aus-
tralia, Tasmania, and C1. C01.
Law, 653, 661.
Victoria. See Australia.
Virgin Islands. See Leeward
Islands.
West African Settlements.—
Sierra Leone and Gambia. As
to Sierra Leone, P. within 14 days,
V. 300l.; Ch. of J. Oct. 1821
gives V. as 400l. See O. in C.
26 Feb. 1867. Territory adjacent
to: O. in C. 24 Aug. 1895; St.
R. No. 397; Laws of Gambia,
pp. 308, 310; and O. in C.
24 Nov. 1891, St. R. 24; African
Order, 15 Oct. 1889, Lon. Gaz.
5557. Application of Foreign
Jurisdiction Act to Old Calabar,
Bonny, Cameroons, New Calabar,
Brass, Oporo, New Borneo, and
Benin Rivers. See Africa.
West India Islands. See
Windward and Leeward Islands.
PVestern Australia. See Aus-
tralia.
Western Paci c, P. 14 days,
V. 500l., through S. C. Fiji. 0.8
in C. 1877, 1879, 1880; 14 H.’s
T. 871, 1245; 15 H.’s T. 752.
These O.s in C. are consolidated in
O. in C. 15 March 1893, St. R.
312, 341; 38 8t 39 Vict. c. 51.
They include Friendly, Naviga-
tors [subject to Samoa Berlin
Order, 14 June 1889], Union,
Phoenix, Ellice, Gilberts, Solomon
[parts not within German jurisdic-
tion], and Santa Cruz Islands.
Windward Islands include
Barbados, Grenada, Grenadines,
St. Lucia, and St. Vincent.
P. 14 days, V. 500l. 6 8t 7
Will. 4. c. 17. s. 12. See Par.
Pap. 23 April and 20 June 1832,
No. 432. St. Lucia, V. 300l.
Code of Civil Procedure of St.
Lucia, 1881, p. 166. The right
has been given to appeal from
S. C. St. Vincent in a case dealing
with land taken by the War
Dept. St. Vincent Laws, 1864,
398. Ct. of Appeal established
by 52 8t 53 Vict. c. 33.
Witu Protectorate. Adm. by
Sultan of Zanzibar. O. in C.
31 July 1893; 19 H.’s T. 14.
Zanzibar. See Bengal (Bom-
bag). Ind. law in force. 0. in
C. 29 Nov. 1884; 17 H.’s T. 1092,
Lon. Gaz. 5649.
Zululand, from Chief Magis. to
,P. C. Pro. 21 June 1887, art. 30;
18 H.’s T. 778.
4, It shall be lawful for His Majesty to refer to the said Judicial
Committee for hearing or consideration any such other matters whatso-
ever as His Majesty shall think ﬁt, and such Committee shall thereupon
hear or consider the same, and shall advise His Majesty thereon in
manner aforesaid.
5, No matter shall be heard, nor shall any order, report, or recommen-
be heard unless dation be made, by the said Judicial Committee, in pursuance of this Act,
1833.] 3 a 4. WILL. 4. c. 41.—EVIDENCE. 1015
unless in the presence of at least four members of the said Com-
mittee; and
No report or recommendation shall be made to His Majesty unless
a majority of the members of such Judicial Committee present at
the hearing shall concur in such report or recommendation: Provided
always, that nothing herein contained shall prevent His Majesty,
if he shall think ﬁt, from summoning any other of the members of
his said Privy Council to attend the meetings of the said Committee.
[See 14 85 15 Vict. c. 83. s. 16, which made the quorum three]
6, In case His Majesty shall be pleased, by directions under his
Sign Manual, to require the attendance at the said Committee for
the purposes of this Act of any member or members of the said
Privy Council who shall be a judge or judges of the Court of
King’s Bench, or of the Court of Common Pleas, or of the Court
of Exchequer, such arrangements for dispensing with the attend-
ance of such judge or judges upon his or their ordinary duties during the
time of such attendance at the Privy Council as aforesaid shall be made
by the judges of the court or courts to which such judge or judges shall
belong respectively in regard to the business of the court and by the
judges of the said three courts, or by any eight or more of such judges,
including the chiefs of the several courts, in regard to all other duties, as
may be necessary and consistent with the public service.
'7, It shall be lawful for the said Judicial Committee, in any
matter which shall be referred to such Committee, to examine
witnesses by word of mouth (and either before or after examination
by deposition), or to direct that the depositions of any witness shall
be taken in writing by the registrar of the said Privy Council to be
appointed by His Majesty as herein-after mentioned, or by such other
person or persons, and in such manner, order, and course, as His
Majesty in Council or the said Judicial Committee shall appoint and
direct; and the said registrar and such other person or persons so to
be appointed shall have the same powers as are now possessed by an
examiner of the High Court of Chancery or of any Court Ecclesiastical.
8, In any matter which shall come before the said Judicial Com-
mittee it shall be lawful for the said Committee to direct that such
witnesses shall be examined or re-examined, and as to such facts as
to the said Committee shall seem ﬁt, notwithstanding any such witness
may not have been examined, or no evidence may have been given on
any such facts in a previous stage of the matter; .and it shall also
be lawful for His Majesty in Council, on the recommendation of
the said Committee, upon any appeal, to remit the matter which shall be
the subject of such appeal to the court from the decision of which such
appeal shall have been made, and at the same time to direct that such
court shall rehear such matter, in such form, and either generally or
upon certain points only, and upon such rehearing take such additional
evidence, though before rejected, or reject such evidence before admitted,
as His Majesty in Council shall direct; and further, on any such remit-
ting or otherwise, it shall be lawful for His Majesty in Council to direct
that one or more feigned issue or issues shall be tried in any court in
any of His Majesty’s dominions abroad, for any purpose for which such
issue or issues shall to His Majesty in Council seem proper.
in presence of
four [now
three] members
of the Com-
mittee, nor
report to be
made unless
with concur-
rence of
majority
present.
In case the
King directs
the attendance
of any judge, a
member of the
Committee, the
other udges
of the court to
which he be-
longs to make
arrangements
with regard to
the business of
the court.
Evidence may
be taken viva
voce, or upon
written de-
positions.
Committee may
order any par-
ticular
witnesses to
be examined,
and as to any
particular facts,
and may remit
causes for re-
hearing.
9, Every witness who shall be examined in pursuance of this Act Witnesses to be
shall give his or her evidence upon oath, or if a Quaker or Moravian
examined on
‘1016 3 a 4 WILL. 4. c. 41.-NEW TRIALS. "[1833.
oath,‘ and to be
liable to
punishment
for perjury.
Committee
may direct an
‘ issue to try
any fact;
may, in certain
cases, direct
depositions to
be read at the
trial of the
issue ;
may make such
orders as to the
admission of
witnesses as are
made by the
Court of
Chancery ;
and may direct
new trials of
issues.
Powers, 850.
of 13 Geo. 3.
c. 63., and
1 Will. 4. c. 22.,
shall extend
to the Judicial
Committee.
upon solemn afﬁrmation, which oath and aﬂirmation respectively shall
be administered by the said Judicial Committee and registrar, and by
such other person or persons as His Majesty in Council or the said
Judicial Committee shall appoint; and that every such witness who
shall wilfully swear or aﬂirm falsely shall be deemed guilty of perjury,
and shall be punished accordingly.
10, It shall be lawful for the said Judicial Committee to direct one
or more feigned issue or issues to be tried in any court of common law,
and either at bar, before a judge of assize, or at the sittings for the
trial of issues in London or Middlesea’, and either by a special or
common jury, in like manner and for the same purpose as is now done
by the High Court of Chancery.
11, It shall be in the discretion of the said Judicial Committee to
direct that, on the trial of any such issue, the depositions already taken
of any witness who shall have died, or who shall be incapable to give
oral testimony, shall be received in evidence; and further, that such
deeds, evidences, and writings shall be produced, and that such facts
shall be admitted, as to the said Committee shall seem ﬁt.
12, It shall be lawful for the said Judicial Committee to make such
and the like orders respecting the admission of persons, whether parties
or others, to be examined as witnesses upon the trial of any such issues
as aforesaid, as the Lord High Chancellor or the Court of Chancery has
been used to make respecting the admission of witnesses upon the trial
of issues directed by the Lord Chancellor or the Court of Chancery.1
1 See J ephson 'v. Riera, 3 Knapp.
130. It appears right to petition
for leave to produce new evidence,
if it is considered necessary, but it
is very doubtful if the leave will be
granted. It was granted in Att.-
Gen. 1:. Meiklejohn, 2 Knapp. p.
330, in respect to the date of the exe-
cution of a will; but in Canepa v.
Larios, 2 Knapp. p. 278, the
Committee refused to hear any
argument on evidence printed in
the appendix, which had been
obtained after the trial in the
colony.
13, It shall be lawful for the said Judicial Committee to direct one
or more new trial or new trials of any issue, either generally or upon
certain points only; and in case any witness examined at a former
trial of the same issue shall have died, or have, through bodily or mental
disease or inﬁrmity, become incapable to repeat his testimony, it shall
be lawful for the said Committee to direct that parol evidence of the
testimony of such witness shall be received.
14, And whereas by an Act passed in the thirteenth year of his late
Majesty King George the Third, and intituled “ An Act for Establishing
certain Regulations for the better Management of the Affairs of the East
India Company, as well in India as in Europe, ” and by an Act passed
in the ﬁrst year of the reign of his present Majesty, and intituled “ An
Act to enable the Courts of Law to Order the Examination of Wit-
nesses upon Interrogatories and otherwise,” certain powers are given to
certain courts therein mentioned to enforce, and provisions are made for
the examination of witnesses by commission, upon interrogatories and
otherwise; be it therefore further enacted, That all the powers and
provisions contained in the two last-mentioned Acts, or either of them,
shall extend to and be exercised by the said Judicial Committee in all
respects as if such Committee had been therein named as one of His
Majesty’s courts of law at Westminster.
1833.] 3 a 4 WILL. 4. c. 41.—REFERENCE BY J. c. 1017
15, The costs incurred in the prosecution of any appeal or matter
referred to the said Judicial Committee, and of such issues as the same
Committee shall under this Act direct, shall be paid by such party or
parties, person or persons, and be taxed by the aforesaid registrar, or
such other person or persons, to be appointed by His Majesty in Council
or the said Judicial Committee, and in such manner as the said Committee
shall direct.
16, The orders or decrees of his Majesty in Council made in pursuance
of any recommendation of the said Judicial Committee, in any matter
of appeal from the judgment or order of any court or judge, shall be
enrolled, for safe custody, in such manner, and the same may be inspected
and copies thereof taken under such regulations as His Majesty in
Council shall direct.
1'], It shall be lawful for the said Committee to refer any matters to
be examined and reported on to the aforesaid registrar, or to such other
person or persons as shall be appointed by His Majesty in Council or by
the said Judicial Committee, in the same manner and for the like purposes
as matters are referred by the Court of Chancery to a master of the
said court; and for the purposes of this Act the said registrar and the
said person or persons so to be appointed shall have the same powers
and authorities as are now possessed by a master in Chancery.
18, It shall be lawful for His Majesty, under his sign manual, to
appoint any person to be the registrar of the said Privy Council, as
regards the purposes of this Act, and to direct what duties shall be
performed by the said registrar.
19, It shall be lawful for the President for the time being of the said
Privy Council to require the attendance of any witnesses, and the pro-
duction of any deeds, evidences, or writings, by writ to be issued by
such President in such and the same form, or as nearly as may be, as
that in which a writ of subpoena ad testiﬁcandum or of subpoena duces
tecum is now issued by His Majesty’s Court of King’s Bench at
Westminster ,- and every person disobeying any such writ so to be issued
by the said President shall be considered as in contempt of the said
Judicial Committee, and shall also be liable to such and the same
penalties and consequences as if such writ had issued out of the said
Court of King’s Bench, and may be sued for such penalties in the said
court.
20, All appeals to His Majesty in Council shall be made within
such times respectively within which the same may now be made, where
such time shall be ﬁxed by any law or usage, and where no such law
or usage shall exist, then within such time as shall be ordered by His
Majesty in Council; and, subject to any right subsisting under
an charter or constitution of any colony or plantation, it shall be
lawful for His Majesty in Council to alter any usage as to the time of
making appeals, and to make any order respecting the time of appealing
to His Majesty in Council.1
1 See Orphan Board '0. Van Reenen, 1 Knapp. 93 ; East India Co. 'v.
Syed Allsy, 7 M00. Ind. App. 568.
21, The order or decree of His Majesty in Council on any appeal
from the order, sentence, or decree of any court of justice in the East
Indies, or of any colony, plantation, or other His Majesty’s dominions
Costs to be in
the discretion
of the Com—
mittee.
Decrees to be
enrolled.
Committee
may refer
matters to
registrar in
same manner
as matters are
by Court of
Chancery re-
ferred to a
master.
The King may
appoint
registrar.
Attendance
of witnesses,
and produc-
tion of papers,
&c., may be
compelled by
subpoena.
Time of ap-
pealing.
Decrees on
appeals from
courts abroad
1018 3 a 4 WILL. 4. c. 41.--CONTEMPTS. [1833.
to be carried
into effect as
the King in
Council shall
direct.
Act not to
abridge powers
of Privy Coun-
cil.
Orders made
on such appeals
to have effect
notwithstand-
ing death of
parties, &c.
His Majesty
empowered to
make orders
for regulating
the mode &c.
of such appeals.
abroad, shall be carried into effect in such manner, and subject to
such limitations and conditions, as His Majesty in Council shall, on
the recommendation of the said Judicial Committee, direct; and it shall
be lawful for His Majesty in Council, on such recommendation, by
order, to direct that such court of justice shall carry the same into effect
accordingly, and thereupon such court of justice shall have the same
powers of carrying into effect and enforcing such order or decree as are
possessed by or are hereby given to His Majesty in Council: Provided
always, that nothing in this Act contained shall impeach or abridge the
powers, jurisdiction, or authority of His Maj esty’s Privy Council as here-
tofore exercised by such Council, or in anywise alter the constitution or
duties of the said Privy Council, except so far as the same are expressly
altered by this Act, and for the purposes aforesaid.
22, dealing with delayed appeals from the Sudder Dewanny Adawlut
courts, has been repealed.
23, In any case where any order shall have been made on any
such appeal as last 1 aforesaid, the same shall have full force and
effect notwithstanding the death of any of the parties interested therein;
but in all cases where any such appeal may have been withdrawn or
discontinued, or any compromise made in respect of the matter in dispute,
before the hearing thereof, then the determination of His Majesty in
Council in respect of such appeal shall have no effect.
1 Refers to sec. 21.
24:, It shall be lawful for His Majesty in Council from time to time
to make any such rules and orders as may be thought ﬁt for the
regulating the mode, form, and time of appeal to be made from the
decisions of the said courts of Sudder Dewanny Adawlut or any other
courts of judicature in India or elsewhere to the eastward of the
Cape of Good Hope (from the decisions of which an appeal lies to
His Majesty in Council), and in like manner from time to time to
make such other regulations for the preventing delays in the making or
hearing such appeals, and as to the expenses attending the said appeals,
and as to the amount or value of the property in respect of which any such
appeal may be made. -
25, Repealed.
26, Repealed.
2'1, Repealed.
28, The said Judicial Committee shall have and enjoy in all respects
such and the same power of punishing contempts and of compelling
appearances, and His Majesty in Council shall have and enjoy in all
respects such and the same powers of enforcing judgments, decrees, and
orders, as are now exercised by the High Court of Chancery, or the
Court of King’s Bench (and both in personam and in rem). . V [The
latter and deleted part of the section gave the same power of enforcing
decrees, &c., as had been given by 2 and 3 W. 4. c. 93. to any Ecclesi-
astical Court. This was repealed and other powers given, 6 8L '7 Vict.
c. 38. s. 6, s. 7 respectively. See sec. 7, p. 1020.]
29, Registrar of Court of Admiralty may attend the Judicial
Committee; repealed, S. L. R. Act, 1875.
1843.] e a 7 vrcr. c. 38.--REG. AS TO APPEALS. 13019
30, Two members of His Majesty’s Privy Council who shall have
held the ofﬁce of judge in the East Indies or any of His Majesty’s
dominions beyond the seas, and who, being appointed for that purpose
by His Majesty, shall attend the sittings of the Judicial Committee
of the Privy Council, shall severally be entitled to receive over and above
any annuity granted to them in respect of having held such ofﬁce as
aforesaid, the sum of four hundred pounds for every year during which
they shall so attend as aforesaid, as an indemnity for the expense which
they may thereby incur; and such sum of four hundred pounds shall
be chargeable upon and paid out of the Consolidated Fund of the
United Kingdom of Great Britain and Ireland.
[50 & 51 Vict. c. 70. 4 amended this section as follows :—“Any
person who shall in virtue of s. 30 of the Act 3 8t 4 Will. 4. c. 41. attend
the sitting of the Judicial Committee shall be deemed to be included
as a member of the said Committee for all purposes, and shall, if there
be only one such person, be entitled to receive the whole amount of the
sums by the said section provided, that is to say, 800l. for every year
during which he shall so attend; but if there shall at any time be two
such persons they shall severally be entitled to the sums provided in the
said section.”]
31, Provided always, and be it enacted, That nothing herein con-
.tained shall be held to impeach or render void any treaty or engagement
already entered into by or on behalf of His blajesty, or be taken to
restrain His Majesty from acceding to any treaty, with any foreign
prince, potentate, or power, in which treaty it shall be stipulated that
any person or persons other than the said Judicial Committee shall hear
and ﬁnally adjudicate appeals from His Majesty’s Courts of Admiralty
in causes of prize; but that the judgments, decrees, and orders of such
other person or persons so appointed by treaty shall be of the same force
and effect of which they would respectively have been if this Act had not
been passed.
6 a 7 vrcr. (1843) c. 38.
“Judicial Committee Act, 1843.”
Preamble and sec. 1; the words “ and be it enacted that,” wherever
they occur; sec. 12, to “enacted that”; see. 17, the Word “that,”
wherever it occurs, repealed by S. L. R. Act, 1891 (54 &. 55 Vict.
c. 67. .
Secg. 4, 6, 8, 16, repealed in whole; and sec. 11 from “ and from ” to
“westward thereof,” and from “ and all causes ” to “ appealed from,”
repealed by S. L. R. Act, No. 2, 1874, 37 8t 38 Vict. c. 96.; sec. 13
repealed by 42 8t 43 Vict. c. 59. ; and see, words repealed by sec. 18 and
Sch. to 53 8b 54 Vict. c. 27., ante, pp. 900, 902.
An Act to make further Regulations for facilitating
the hearing Appeals and other matters by the
Judicial Committee of the Privy Council.
[28th July 1843.]
2, In respect of all incidents, emergents, dependents, and things
adjoined to, arising out of, or connected with appeals from an
Ecclesiastical Court, [or from any Admiralty or Vice-Admiralty Court]
(save in giving a deﬁnitive sentence, or any interlocutory decree
Two retired
Indian or
colonial judges
attending the
Judicial Com-
mittee shall re—
ceive an al-
lowance.
Saving as
to treaties ap-
pointing cer-
tain persons to
hear prize
appeals.
Powers of the
Judicial Com-
mittee and
their surro-
1020 s a 7 VICT. c. 38.-PROCEDURE. [1843.
gates in respect
to appeals
from Ecclesias—
tical and Ad-
miralty Courts.
2&3W. 4.
c.91.
38c 4W. 4.
c. 41.
Who to be
surrogates and
examiners of
the Judicial
Committee in
Ecclesiastical
and Admiralty
appeals.
Manner of
conducting
appeals before
the Judicial
Committee.
Punishing
contempts,
compelling
appearances,
enforcing
judgments, &c.
in causes of
appeal.
having the force and effect of a deﬁnitive sentence), the said Judicial
Committee and their surrogates shall have full power, subject to such
rules, orders, and regulations as shall from time to time be made by
the said Judicial Committee (with the approval of Her Majesty in
Council), to make all such interlocutory orders and decrees, and to
administer all such oaths and affirmations, and to do all such things as
may be necessary, or the judges of the courts below appealed from or
their surrogates in the cases appealed, or the judges of the courts
appealed to or their surrogates, [or the Lords Commissioners of Appeals
in Prize Causes or their surrogates,] and the judges delegate or their
condelegates under commissions of appeal under the great seal in
ecclesiastical and maritime causes of appeal, would respectively have had
before an Act passed in the third year of the reign of his late
Majesty, intituled “ An Act for transferring the Powers of the High
Court of Delegates, both in ecclesiastical and maritime causes, to His
Majesty in Council,” and another Act passed in the following Session of
Parliament, intituled “ An Act for the better administration of Justice
in His Majesty’s Privy Council,” were passed. [Words repealed in
brackets, see ante, p. 902.]
3, The surrogates and examiners of the Arches Court of Canterbury
[and the High Court of Admiralty of England], and such persons
as shall from time to time be appointed surrogates or examiners of
the said Courts, shall be by virtue of this Act surrogates and examiners
respectively of the Judicial Committee of the Priiqr Council in all causes
of appeal from Ecclesiastical Courts [and from any Admiralty or Vice-
Admiralty Court] [Words repealed, p. 902.]
4, Repealed.
5, Subject to such rules and regulations as may from time to time
be made by the said Judicial Committee with the approval of Her
Majesty in Council, and save and in so much as the practice thereof
may be varied by the said Acts of the reign of his late Majesty or
by this Act, the said causes of appeal to Her Majesty in Council shall
be commenced within the same times, and conducted in the same form
and manner, and by the same persons and ofﬁcers, as if appeals in
the same causes had been made to the Queen in Chancery, [the High
Court of Admiralty of England, or the Lords Commissioners
of Appeals in Prize Causes respectively; and all things otherwise
lawfully done and expedited in the said causes of appeal by the registrar
of the High Court of Admiralty of England, his deputy or deputies, in
consequence of the passing of the said Acts of the reign of his late
Majesty, shall be deemed to be valid to all intents whatsoever.] [Words
repealed, p. 902.]
6, Repealed.
7, For better punishing contempts, compelling appearances, and
enforcing judgments of Her Majesty in Council, and all orders and
decrees of the said Judicial Committee or their surrogates, in all
causes of appeal from Ecclesiastical Courts [and from Admiralty or
Vice-Admiralty Courts,] Her Majesty in Council and the said Judicial
Committee and their surrogates shall have the same powers, by
attachment and committal of the person to any of Her Majesty’s
gaols, and subsequent discharge of any person so committed, as by an
statute, custom, or usage belong to the Judge of the High Court of
Admiralty of England; and the said Judicial Committee shall have the
same immunities and privileges as are conferred on the Judge of the
1843.] s a 7 VIcT. c. ss.-cows AND TAXATION. 1021
High Court of Admiralty of England under an Act passed in the fourth
year of the reign of Her Majesty, intituled “An Act to improve the
practice and extend the jurisdiction of the High Court of Admiralty of
England,” as fully as if the same had been thereby expressly given to
the said Judicial Committee. [Words repealed, p. 902.]
8, Orders, 850., may be enforced by sequestration against certain
persons pronounced contumacious and in contempt. [Repealed by
S. L. R., 1874, No. 2, and rendered unnecessary by 37 & 38 Vict. c. 85.
ss. 9, 12, 13.]
9, All inhibitions, citations, monitions, and other instruments inci-
dental to or arising out of such causes of appeal shall be issued in
the name of Her Majesty, and under seal of Her Majesty in ecclesiastical
[and maritime causes], and shall be of full authority in all places
throughout the dominions of Her Majesty. [Words repealed, p. 902.]
10, In all appeals in ecclesiastical [and maritime causes] to Her
Majesty in Council it shall be lawful for Her Majesty in Council,
and the said Judicial Committee or their surrogates, at the petition of
any person interested in the same, to decree monitions for the trans-
mission of any sum or sums of money respecting which any order
or decree may be made, or any questions may be depending arising
out of such causes, and the proceeds of all ships or vessels, goods,
and cargoes, respecting which any appeals may be depending, into the
registry of the High Court of Admiralty and Appeals, for the beneﬁt of
the person or persons who may be ultimately entltled thereto, or for
payment thereof to the person to whom the same may be lawfully due.
[Words repealed, p. 902.]
11, It shall be lawful for Her Majesty, by Order in Council, to
direct that all causes of appeal from Ecclesiastical Courts, and from
the Vice Admiralty Court of the Cape of Good Hope, and all
Vice-Admiralty Courts to the westward thereof, in which the appeal
and petition of reference to Her Majesty shall have been lodged
in the registry of the High Court of Admiralty and Appeals within
twelve calendar months from the giving or pronouncing of any order,
decree, or sentence appealed from, and all causes of appealfrom Vice-
Admiralty Courts to the eastward of the Cape of Good IIope, in
which the appeal and petition of reference to Her lllajesty shall have
been lodged in the registry of the High Court of Admiralty and
Appeals within eighteen calendar months from the giving or pro-
nouncing any order, decree, or sentence appealed from, shall be referred
to the Judicial Committee of the Privy Council, and the said Judicial
Committee and their surrogates shall have full power forthwith to
proceed in the said appeals, and the usual inhibition and citation shall be
decreed and issued, and all usual proceedings taken, as if the same had
been referred to the said Judicial Committee by a special order of her
Majesty in Council in each cause'respectively. [Words in italics repealed
by S. L. R. 1874, No. 2; and see Sch. to 26 80 27 Vict. c. 24.]
12, As well the costs of defending any decree _or sentence appealed
from as of prosecuting any appeal, or in any manner intervening in
any cause of appeal, and the costs on either side, or of any party,
in the court below, and the costs of opposing any matter which shall
be referred to the said Judicial Committee, and the costs of all such
issues as shall be tried by direction of the said Judicial Committee
respecting any such appeal or matter, shall be pa1d by Such Party
3 & 4 Vict.
c. 65.
Inhibitions, 860.
to be in Her
Majesty’s
name, and of
force through-
out the British
dominions.
Monitions for
payments into
the registry of
the Admiralty
Court under
orders, &0.
All appeals
from Eccle-
siastical [and
Admiralty
Courts] may be
referred to the
Judicial Com-
mittee by an
Order in Coun-
cil.
Costs may be
awarded by the
Judicial Com-
mittee, and
taxed.
1022 e a 7 VICT. c. 38.-CUSTODY or RECORDS. [1843.
8 & 4 Will. 4.
c. 41.
Appointment
of registrar and
assistant regis-
trar in eccle-
siastical and
maritime
causes.
3 & 4 Vict.
c. 66.
Custody of
records, &c. of
the Court of
Delegates and
Appeals.
Judicial Com-
mittee em—
powered to
make rules, &c.,
respecting
practice and
mode of pro-
ceeding in ap-
peals, &c.
Proviso.
Deﬁnition of
terms.
or parties, person or persons, as the said Judicial Committee shall
order, and such costs shall be taxed as in and by the said Act for
the better Administration of Justice in the Privy Council is directed
respecting the costs of prosecuting any appeal or matter referred by
Her Majesty under the authority of the said Act, save the costs arising
out of any ecclesiastical [or maritime] cause of appeal, which shall be
taxed by the registrar herein-after named, or his assistant registrar.
[See ante, p. 902.]
13, [That the registrar of the High Court of Admiralty of Eng—
land for the time being may be appointed by Her Majesty to be
registrar of Her Majesty in ecclesiastical and maritime causes, and
shall have power to appoint an assistant registrar, as provided by an
Act passed in the fourth year of the reign of Her Majesty, intituled
“ An Act to make Provision for the Judge, Registrar, and Marshal of
the High Court of Admiralty of England,” and shall during his good
behaviour, and while he shall be registrar of the said High Court of
Admiralty, hold his oﬂice of registrar of Her Majesty in ecclesiastical
and maritime causes, and shall do all such things, and shall have the
same powers and privileges in respect to the same, as belong to his pre-
decessors in the oﬂice of registrar of His Majesty in ecclesiastical and
maritime causes] Repealed.
14, All records, muniments, books, papers, wills, and other documents
remaining in the registry of the High Court of Admiralty and Appeals,
appertaining to the late High Court of Delegates and Appeals for Prizes,
shall be and remain in the custody and possession of the said registrar
of Her Majesty in ecclesiastical and maritime causes.
15, It shall be lawful for the said Judicial Committee from time to
time to make such rules, orders, and regulations respecting the practice
and mode of proceeding in all appeals from Ecclesiastical [and
Admiralty and Vice-Admiralty] Courts, and the conduct and duties
of the oﬂicers and practitioners therein, and to appoint such ofﬁcer
or officers as may be necessary for the execution of processes under
the said seal of Her Majesty, and in respect to all appeals and other
matters referred to them, as to them shall seem ﬁt, and from time to time
to repeal or alter such rules, orders, or regulations: Provided always, that
no such rules, orders, or regulations shall be of any force or effect until
the same shall have been approved by Her Majesty in Council. [Words
repealed, p. 902.]
16, Repealed.
1'], In this Act all words denoting a male person shall be taken
to include a female also, and all words denoting one person or thing
shall be taken to include also several persons or things, unless a
contrary sense shall clearly appear from the context; and the words
“Arches Court of Canterbury,” used in this Act, shall be construed
to extend to such court as shall exercise the jurisdiction of the said
court or be substituted for the same; and wherever the words
“ Ecclesiastical Court” have been used in this Act the same shall be
construed to extend to such court as shall exercise the jurisdiction
or any part of the jurisdiction exercised by any ecclesiastical court
or be substituted for the same; and the words “ecclesiastical and
maritime cause of appea ” shall be construed to extend to causes appealed
from ecclesiastical courts and such court as shall exercise the jurisdiction
or any part of the jurisdiction exercised by any ecclesiastical court or be
substituted for the same.
1844.] 7 & svrcr. c. (59.—ANY 001.. mm APPEAL. 1023
7 a 8 VICT. (1844) c. 69.
Preamble and sec. 1 to “ same, That ” ; the words “and be it enacted
that,” wherever they occur, except in sec. 8; sec. 8, the words “and
be it enacted”; sec. 9, the word “that” before “the said judicial,”
repealed by S. L. R. Act, 1891, c. 67.
Secs. 6, 7, l3 repealed by S. L. R. 1874, No. 2 (37 & 38 Vict. c. 96).
Secs. 2 to 5 inclusive repealed by 46 St 47 Vict. (1883) c. 57. sec. 113
and 3rd sch.
[And for words in sec. 12 repealed, see Sch. to 53 & 54 Vict.
c. 27., ante, p. 902.]
An Act for amending an Act passed in the Fourth Year
of the Reign of His late Majesty, intituled “ An
Act for the better Administration of Justice in His
Majesty’s Privy Council” ; and to extend its J uris-
diction and Powers. [6th August 1844.]
Preamble and sec. 1. This part of the Act narrated :—-—That by
certain “laws now in force in certain of Her Majesty’s colonies and
possessions abroad no appeal can be brought to Her Majesty in Council
for the reversal of the judgments, sentences, decrees, and orders of any
courts of justice within such colonies, save only of the courts of
error or courts of appeal within the same, and it is expedient that
Her Majesty in Council should be authorized to provide for the admis-
sion of appeals from other courts of justice within such colonies or
possessions.” The Act then provided :—
It shall be competent to Her Majesty, by any Order or Orders to be
from time to time for that purpose made with the advice of Her
Privy Council, to provide for the admission of any appeal or appeals
to Her Majesty in Council from any judgments, sentences, decrees, or
orders of any court of justice within any British colony or possession
abroad, although such court shall not be a court of errors or a court
of appeal within such colony or possession; and it shall also be
competent to Her Majesty, by any such Order or Orders as aforesaid, to
make all such provisions as to Her Majesty in Council shall seem meet
for the instituting and prosecuting any such appeals, and for carrying
into effect any such decisions or sentences as Her Majesty in Council
shall pronounce thereon: Provided always, that it shall be competent
to Her Maj esty in Council to revoke, alter, and amend any such Order
or Orders as aforesaid, as to Her Majesty in Council shall seem meet;
Provided also, that any such Order as aforesaid may be either general
and extending to all appeals to be brought from any such court of
justice as aforesaid, or special and extending only to any appeal to be
brought in any particular case : Provided also, that every such general
Order in Council as aforesaid shall be published in the London Gazette
within one calendar month next after the making thereof: Provided
also, that nothing herein contained shall be construed to extend to take
away or diminish any power now by law vested in Her Majesty for
regulating appeals to Her Majesty in Council from the judgments,
sentences, decrees, or orders of any courts of justice within any of Her
Majesty’s colonies or possessions abroad.
Secs. 2, 3, 4, 5, 6, 7, dealing with extension of letters patent, &c.,
repealed. [See head—notes]
Her Majesty,
by Order in
Council, may
provide for the
admission of an
appeal from
any colony,
although there
shall not be a
court of error
or of appeal in
such colony;
and may re-
voke such
orders.
Orders may be
either general
or special.
General orders
to be pub-
lished.
Nothing herein
to affect the
present powers
for regulating
appeals from
the colonies.
1024 7 a s VICT. c. 69.—SPECIAL REFERENCE. [1844.
Judicial Com-
mittee may
appoint clerk
of Privy Coun-
cil to take
proofs in
matters re-
ferred to them.
Judicial Com—
mittee may
proceed to
hearing of
appeals with-
out special
order of
reference.
Proviso.
Judicial Com—
mittee may re-
quire notes of
evidence taken
in the courts of
any colony, &c.
of the Crown.
Judicial Com-
mittee may
make rules to
be binding
upon such
courts re-
quiring judges’
notes of evi-
dence, reasons
for judgments,
&c.
In cases of
neglect to com-
ply with Order
of Council
persons so
neglecting may
be punished as
for contempt.
8, Provided always, and be it enacted, that in the case of any
matter or thing referred to the Judicial Committee, it shall be lawful
for the said Committee to appoint one or other of the clerks of the
Privy Council to take any formal proofs required to be taken in dealing
with the matter or thing so referred, and shall, if they so think ﬁt, pro-
ceed upon such clerk’s report to them as if such formal proofs had been
taken by and before the said Judicial Committee.
9, In case any petition of appeal whatever shall be presented,
addressed to Her Majesty in Council, and such petition shall be
duly lodged with the clerk of the Privy Council, it shall be lawful
for the said Judicial Committee to proceed in hearing and reporting
upon such appeal, without any special Order in Council referring the
samev to them, provided that Her Majesty in Council shall have, by
an Order in Council in the month of November, directed that
all appeals shall be referred to the said Judicial Committee, on which
petitions may be presented to Her Majesty in Council during the
twelve months next after the making of such Order; and the said
Judicial Committee shall proceed to hear and report upon all such
appeals in like manner as if each such appeal had been referred to the
said Judicial Committee by a special Order of Her Majesty in Council :
Provided always, that it shall be lawful for Her Majesty in Council at
any time to rescind any general order so made; and in case of such
Order being so rescinded, all petitions of appeals shall in the ﬁrst
instance be preferred to Her Majesty in Council, and shall not be
proceeded with by the said Judicial Committee without a special order
of reference.
10, It shall be lawful for the said Judicial Committee to make an
order or orders on any court in any colony or foreign settlement,
or foreign dominion of the Crown, requiring the judge or judges of
such court to transmit to the clerk of the Privy Council a copy of
the notes of evidence in any cause tried before such court, and of the
reasons given by the judge or judges for the judgment pronounced in
any case brought by appeal or by writ of error before the said Judicial
Committee.
11, It shall and may be lawful for the said Judicial Committee
to make any general rule or regulation, to be binding upon all courts
in the colonies and other foreign settlements of the Crown, requiring
the judges’ notes of the evidence taken before such court on any
cause appealed, and of the reasons given by the judges of such court,
or by any of them, for or against the judgment pronounced by such
court; which notes of evidence and reasons shall by such court
be transmitted to the clerk of the Privy Council within one calendar
month next after the leave given by such court to prosecute any appeal
to Her Majesty in Council; and such order of the said Committee shall
be binding upon all judges of such courts in the colonies or foreign settle-
ments of the Crown.
12, In all causes of appeal to Her Majesty in Council from Ecclesi-
astical Courts, [and from Admiralty or Vice-Admiralty Courts],
which now are or may hereafter be depending, in which any person
duly monished or cited or requested to comply with any lawful order
or decree of Her Majesty in Council, or of the Judicial Committee
of the Privy Council or their surrogates, made before or after the
passing of this Act, shall neglect or refuse to pay obedience to such
lawful order or decree, or shall commit any contempt of the process
1851.] 14.& 15 VIc'r. c. 83.-QUORUM OF J. c. 1025
under the seal of Her Majesty in ecclesiastical [and maritime] causes,
it shall be lawful for the said Judicial Committee or their surrogates to
pronounce such person to be contumacious and in contempt, and, after
he or she shall have been so pronounced contumacious and in contempt,
to cause process of sequestration to issue under the said seal of Her
Majesty against the real and personal estate, goods, chattels, and elfects,
wheresoever lying within the dominions of Her Majesty, of the person
against or upon whom such order or decree shall have been made, in
order to enforce obedience to the same and payment of the expenses
attending such sequestration, and all proceedings consequent thereon,
and to make such further order in respect of or consequent on such
sequestration, and in respect to such real and personal estates, goods,
chattels, and effects sequestrated thereby, as may be necessary, or for
payment of moneys arising from the same to the person to whom the
same may be due, or into the registry of the High Court of Admiralty
and Appeals, for the beneﬁt of those who may be ultimately entitled
thereto. [See words repealed, ante, p. 902.]
13, Repealed.
14 a 15 vIcT. (1851) 5. 83.
Amending 3 80 4 Will. 4. c. 41. as to the quorum of the Judicial
Committee.
Sec. 16 provided: “ No matter shall be heard, nor shall any order,
report, or recommendation be made by the Judicial Committee in
pursuance of any Act, unless in the presence of at least three members
of the said Committee, exclusive of the Lord President of Her Majesty’s
Privy Council for the time being.”
15 a 17 VIGT. (1853) 5. 85.
This Act gives the registrar of Her Majesty’s Privy Council power to
take affidavits and administer oaths; and provides for the appointment
of a deputy-registrar. [Under this Act Mr. Geo. Pearson Wheeler was
appointed deputy-registrar during absence of the registrar, Mr. Faber.]
34 a 35 VIO'I‘. (1871) 5. 91.
[Repealed by S. L. R. Act, 1893, c. 54.]
This statute gave power to Her Majesty within twelve months after
the passing of the Act, by warrant under her sign manual, to appoint
four persons qualiﬁed’ as in the Act mentioned, whether already members
of the Judicial Committee or not, to act as members of the Judicial
Committee. And further, it gave power to Her Majesty from time to
time, within two years after the passing of the Act, by a like warrant to
ﬁll any vacancies occasioned by death or otherwise in the oﬁices of the
persons so appointed.
Any person appointed under the Act was to be specially qualiﬁed as
being or having been one of the judges of one of Her Majesty’s superior
courts at Westminster, or a Chief Justice of the High Court at Fort
William in Bengal, Madras, or Bombay, or of the late Supreme Court
of Judicature at Fort William in Bengal.
8 2340. 3 T
1026 39 a 40 VICT. c. 59.—APPELLATE ACT. [1876.
Appointment of
Lords of Appeal
in Ordinary by
Her Majesty.
Where any person was appointed in pursuance of the Act, he was on
his appointment to vacate his ofﬁce as judge aforesaid; but as to pension
was to be in the same position as if no such appointment had been made.
Each judge was to have a salary of 5,0001, including any pension he
was entitled to.
36 a a7 VICT. (1873) c. 66.
Judicature Act of 1873.
This Act [sec. 18 transferred to the Court of Appeal all juris-
diction of the Judicial Committee upon appeal from any judgment or
order of the High Court of Admiralty [in England]; or from any
order in lunacy. And now appeals from the Admiralty Court go to the
Appeal Court, and from thence to the House of Lords.
[See 37 8c 38 Vict. c. 83. ; 38 8t 39 Vict. [Judicature Act of 1875]
c. 77., postponing parts of Act; and 39 85 4O Vict. c. 59. declaring what
appeals should go to the House of Lords, and repealing sees. 20 and 21
of the Judicature Act of 1873.] See note, ante, p. 405.
39 a 4.0 VICT. (1876) c. 59.
Appellate Jurisdiction Act, 1876.
6, For the purpose of aiding the House of Lords in the hearing and
determination of appeals Her Majesty may at any time . . . by
letters patent appoint two qualiﬁed persons to be Lords of Appeal in
Ordinary.
A person shall not be qualiﬁed to be appointed by Her Majesty
a Lord of Appeal in Ordinary unless he has been at or before the time
of his appointment the holder for a period of not less than two years of
some one or more of the ofﬁces in this Act described as high judicial
offices, or has been at or before such time as aforesaid for not less than
ﬁfteen years a practising barrister in England or Ireland, or a practising
advocate in Scotland.
Every Lord of Appeal in Ordinary shall hold his ofﬁce during good
behaviour, and shall continue to hold the same notwithstanding the demise
of the Crown, but he may be removed from such office on the address of
both Houses of Parliament.
There shall be paid to every Lord of Appeal in Ordinary a salary of
6,000l. a year.
Every Lord of Appeal in Ordinary, unless he is otherwise entitled to
sit as a member of the House of Lords, shall by virtue and according
to the date of his appointment be entitled during his life to rank as a
baron by such style as Her Majesty may be pleased to appoint, and
shall . be entitled to a writ of summons to attend and to sit and
vote in the House of Lords; his dignity of a Lord of Parliament shall
not descend to his heirs. [See 50 & 51 Vict. c. 70. s. 2, a right given to
sit and vote in the House of Lords during life]
On any Lord of Appeal in Ordinary vacating his ofﬁce by death,
resignation, or otherwise, Her Majesty may ﬁll up the vacancy by the
appointment of another qualiﬁed person.
A Lord of Appeal in Ordinary shall, if a Privy Councillor, be a
member of the Judicial Committee of the Privy Council, and, subject to
1876.] 39 a 40 VICT. c. 59.—LORDS IN ORDINARY. 1027
the due performance by a Lord of Appeal in Ordinary of his duties as
to the hearing and determining of appeals in the House of Lords, it
shall be his duty, being a Privy Councillor, to sit and act as a member
of the Judicial Committee of the Privy Council.
8, For preventing delay in the administration of justice the House Hearing and
of Lords may sit and act for the purpose of hearing and determining determination
appeals, and also for the purpose of Lords of Appeal in Ordinary taking 9f appeals ‘i111?’
their seats and the oaths, during any prorogation of Parliament at 1;;gP15f12155255 n
such time and in such manner as may be appointed by order of the '
House of Lords made during the preceding session of Parliament; and
all orders and proceedings of the said House in relation to appeals and
matters connected therewith during such prorogation shall be as valid
as if Parliament had been then sitting; but no business other than the
hearing and determination of appeals and the matters connected there-
with, and Lords of Appeal in Ordinary taking their seats and the oaths
as aforesaid, shall be transacted by such House during such prorogation.
[Words repealed by S. L. R. Act have been deleted, 57 8t 58 Vict. c. 56.]
Sec. 9 provided for the hearing and determination of appeals during
a dissolution of Parliament, and that “ It shall be lawful for Her Majesty,
by writing under her sign manual, to authorize the Lords of Appeal in
the name of the House of Lords to hear and determine appeals during
the dissolution of Parliament, and for that purpose to sit in the House
of Lords at such times as may be thought expedient; and upon such
authority as aforesaid being given by Her Majesty, the Lords of Appeal
may, during such dissolution, hear and determine appeals and act in all
matters in relation thereto in the same manner in all respects as if their
sittings were a continuation of the sittings of the House of Lords, and
may in the name of the House of Lords exercise the jurisdiction of the
House of Lords accordingly.”
14:, [Whereas by the Act of the session of the thirty-fourth and Amendment of
thirty-‘ﬁfth years of the reign of her present Majesty, chapter ninety- the 173% 0f34 86
one, intituled “An Act to make further provision for the despatch of 3fllllct' 2117"
business by the Judicial Committee of the Privy Council,” Her Majesty Zggsgirjlgltign O‘;
was empowered to appoint and did appoint four persons qualiﬁed as in the privy
that Act mentioned to act as members of the Judicial Committee of the Council.
Privy Council at such salaries as are in the said Act mentioned, in this
Act referred to as paid judges of the Judicial Committee of the Privy
Council:
And whereas the power given by the said Act of ﬁlling any vacancies
occasioned by death, or otherwise, in the oﬁices of the persons so
appointed, has lapsed by eﬁlux of time, and Her Majesty has no power
to ﬁll any such vacancies:
Be it enacted, That whenever any two of the paid judges of the
Judicial Committee of the Privy Council have died or resigned], Her
Majesty may appoint a third [Lord of Appeal in Ordinary in addition to
the Lords of Appeal in Ordinary herein-before authorized to be
appointed,] and [on the death or resignation of the remaining two paid
judges of the Judicial Committee of the Privy Council Her Majesty
may appoint] a fourth Lord of Appeal in Ordinary, in addltlon to the
Lords of Appeal in Ordinary aforesaid; and may from time to time ﬁll
up any vacancies occurring in the oﬁ‘ices of such third and fourth Lord
of Appeal in Ordinary. [Within brackets repealed by S. L. R. Act,
1894, c. 56.] .
Any Lord of Appeal in Ordinary appointed in pursuance of this
section shall be appointed in the same manner, hold his ofﬁce by the
3T2
1028 44 a 45 VICT. c. 3.—LORD JUS'I‘ICES. [1881.
same tenure, be entitled to the same salary and pension, and in all
respects be in the same position as if he were a Lord of Appeal in
Ordinary appointed in pursuance of the power in this Act before given
to Her Majesty.
Her Majesty may by Order in Council, with the advice of the
Judicial Committee of Her Majesty’s Privy Council or any ﬁve of them,
of whom the Lord Chancellor shall be one, and of the archbishops and
bishops being members of Her Majesty’s Privy Council, or any two of
them, make rules for the attendance, on the hearing of ecclesiastical
cases, as assessors of the said Committee, of such number of the arch-
bishops and bishops of the Church of England as may be determined by
such rules.
The rules may provide for the assessors being appointed for one or
more year or years, or by rotation or otherwise, and for ﬁlling up any
temporary or other vacancies in the office of assessor.
Any rule made in pursuance of this section shall be laid before each
House of Parliament within forty days after it is made if Parliament be
then sitting, or, if not then sitting, within forty days after the com-
mencement of the then next session of Parliament.
If either House of Parliament present an address to Her Majesty
within forty days after any such rule has been laid before such House,
praying that any such rule may be annulled, Her Majesty may there-
upon by Order in Council annul the same, and the rule so annulled shall
thenceforth become void, but without prejudice nevertheless to the
making of any other rule in its place, or to the validity of anything which
may in the meantime have been done under any such rule.
By sec. 24, sees. 20 and 21 of 36 &3 37 Vict. (1873) c. 66., which
attempted to abolish the House of Lords and the Judicial Committee as
supreme and ultimate appeal courts, were repealed.
By sec. 25, “ high judicial office ” means any of the following oﬂices :—
The ofﬁce of Lord Chancellor of Great Britain or Ireland or of
paid Judge of the Judicial Committee of the Privy Council, or of judge
of one of Her Majesty’s superior courts of Great Britain and Ireland.
And in the latter expression, “ Superior courts ” means, as to England,
Her Majesty’s High Court of Justice and Her Majesty’s Court of
Appeal, &c.; as to Ireland, the superior courts of law and equity at
Dublin; as to Scotland, the Court of Session.
This was amended by 50 8t 51 Vict. c. 7 0., which see below.
44 a 45 VICT. (1881) c. s.
1, Every person holding or who has held in England the ofﬁce of a
Lord Justice of Appeal shall, if a member of Her Majesty’s Privy
Council in England, be a member of the Judicial Committee of the
Privy Council.
46 85 47 VICT. (1883) c. 57.
Patents, Designs, and Trade Marks Act.
By Sec‘ 25’ the term of a Patent may be extended by the Judicial
Committee, .
1887.] 50 a 51 vIcT. 5. 70.—APPELLATE JUR. 1029
50 a 51 VIGT. (1887) 5. 70.
An Act to amend the Appellate Jurisdiction Act, 1876.
[16th September 1887
“I HEREAS it is expedient to amend the Appellate Jurisdiction
Act, 187 6.
Be it therefore enacted by the Queen’s most Excellent Majesty, by
and with the advice and consent of the Lords Spiritual and Temporal,
and Commons, in this present Parliament assembled, and by the autho
rity of the same, as follows:
1, Whereas it is expedient that any Lord of Appeal, as deﬁned by the
Appellate Jurisdiction Act, 1876, notwithstanding that he may not be a
Lord of Appeal in Ordinary within the meaning of that Act, should be
empowered to take his seat and the oaths at the sittings of the House of
Lords for hearing and determining appeals during the prorogation of
Parliament : Be it enacted that, notwithstanding anything in the eighth
section of the said Act contained, every Lord of Appeal shall be
empowered to take his seat and the oaths at any such sitting of the
House of Lords during prorogation.
2, The sixth section of the Appellate Jurisdiction Act, 1876, shall
be construed and take effect, as well in respect of any Lord of Appeal
in Ordinary heretofore appointed under that Act, as of any such Lord
hereafter appointed, so as to entitle any person so appointed to sit and
vote as a member of the House of Lords during his life as fully as if the
words “during the time that he continues in his office as a Lord of
Appeal in Ordinary, and no longer” had been omitted from the said
section.
3, The Judicial Committee of the Privy Council as formed under the
provisions of the ﬁrst section of the Act of the third and fourth WVilliam
the Fourth, chapter forty-one, intituled “ An Act for the better adminis-
tration of Justice in His Majesty’s Privy Council,” shall include such
members of Her Majesty’s Privy Council as are for the time being holding
or have held any of the oiﬁces in the Appellate Jurisdiction Act, 1876,
and this Act, described as high judicial offices.
4, Any person who shall in virtue of the thirtieth section of the Act
of the third and fourth William the Fourth, chapter forty-one, attend
the sittings of the Judicial Committee of the Privy Council, shall be
deemed to be included as a member of the said Committee for all
purposes, and shall, if there be only one such person, be entitled to
receive the whole amount of the sums by the said section provided, that
is to say, eight hundred pounds for every year during which he shall so
attend; but if there shall at any time be two such persons, they shall
severally be entitled to the sums provided in the said section.
5, The expression “ high judicial office ” as deﬁned in the twenty-
ﬁfth section of the Appellate Jurisdiction Act, 187 6, shall be deemed to
include the office of a Lord of Appeal in Ordinary and the oﬂice of a
member of the Judicial Committee of the Privy Council.
6, This Act may be cited as the Appellate Jurisdiction Act, 1887.
57 8t 58 VICT. c. 39.
The “Prize Courts ” Act, 1894, ante, p. 926.
39 82? 40 Vict.
c. 59.
Lord of Appeal
may take his
seat during
prorogation.
Retired Lord
of Appeal in
Ordinary may
sit in House of
Lords.
Amendment of
3 55 4 \V. 4.
c. 41.
Remuneration
in Judicial
Committee.
Amendment of
39 & 40 Vict.
c. 59. s. 25.
Short title.
1030 5a a 59 vro'r. c. ‘14.—COL. MEM. or r. o. [1895.
Provision as to
persons being
or having been
colonial Chief
Justices or
judges.
Short title.
58 a 59 vror. (1895) c. 4.4.
An Act to amend the Law relating to the Judicial
Committee of her Majesty’s Privy Council.
[6th July 1895.]
BE it enacted by the Queen’s most Excellent Majesty, by and with
the advice and consent of the Lords Spiritual and Temporal, and
Commons, in this present Parliament assembled, and by the authority
of the same, as follows :—
1,—q(l.) If any person being or having been Chief Justice or a judge
of the Supreme Court of the Dominion of Canada, or of a superior
court in any province of Canada, of any of the Australasian colonies
mentioned in the schedule to this Act, or of either of the South African
colonies mentioned in the said schedule, or of any other Superior Court
in Her Majesty’s dominions named in that behalf by Her Majesty in
Council, is a member of Her Majesty’s Privy Council, he shall be a
member of the Judicial Committee of the Privy Council.
(2.) The number of persons being members of the Judicial Com-
mittee by reason of this Act shall not exceed ﬁve at any one time.
(3.) The provisions of this Act shall be in addition to, and shall not
affect, any other enactment for the appointment of or relating to members
of the Judicial Committee.
2, This Act may be cited as the Judicial Committee Amendment Act,
1895.

SCHEDULE.
Australasian Colonies.
New South Wales; New Zealand; Queensland; South Australia;
Tasmania; Victoria; Western Australia.
South African Colonies.
Cape of Good Hope; Natal.
[The Lords of Appeal in Ordinary are :—Lord Watson, Lord Mac-
naghten, Lord Morris, and Lord Davey. The salary paid to each Lord
of Appeal in Ordinary is 6,000l.
The following frequently attend the meetings of the Judicial Commit-
tee when colonial, Indian, and Ecclesiastical appeals; Patent extensions
and Special References are heard: Lord Halsbury, Lord Chancellor;
Lord Herschell, ex-Lord Chancellor; Lord Penzance; Lord Hobhouse;
Lord Ashbourne, Lord Chancellor of Ireland, when not engaged in
Ireland; Lord Shand, retired Lord of Session, Scotland [a court
answering to the Court of Appeal in England]; Sir Richard Couch,
retired Indian judge; Lord Field; Hon. George Denman; the Master
of the Rolls; the Lord Chief Justice; and the President of the Divorce
Court; and lately Lord James of Hereford has sat. The Lord Justices
who are P. C.s can also be summoned.
The majority of these Lords also sit in the House of Lords on the
hearing of appeals. Judges, therefore, who decide ﬁnally the law for
England, Ireland, and Scotland; also, more or less, decide the law
ﬁnally for all the colonies, India, 850.] i
1890.] 53 a .54 VICT. c. 37.-ron. JURISDICTION ACT. 1031
53 a 54 vror. (1890) c. 37.
An Act to consolidate the Foreign Jurisdiction
Acts. [4th August 1890.]
_ [Authority exercised, see n., p. 1041.]
HEREAS by treaty,1 capitulation, grant, usage,
sufferance, and other lawful means, Her Majesty
the Queen has jurisdiction within divers foreign coun-
tries, and it is expedient to consolidate the Acts re-
lating to the exercise of Her Maj esty’s jurisdiction out
of her dominions :
Be it therefore enacted by the Queen’s most Excellent
Majesty, by and with the advice and consent of the
Lords Spiritual and Temporal, and Commons, in this
present Parliament assembled, and by the authority of
the same, as follows:
1, It is and shall be lawful for Her Majesty the
Queen to hold, exercise, and enjoy any jurisdiction
which Her Majesty now has or may at any time here-
1See Imperial Japanese G0-
vernment v. P. <5 0. St. IVaoi-
gation Coy. [1895], A. C. 644;
where the Judicial Committee held,
that as by treaty a Japanese can
only sue a British subject in the
British Consular Courts in Japan,
so also a counterclaim by a British
subject againsta Japanese can only
be heard in the Territorial Courts
of Japan.
Nor can a Japanese or Chinese
subject when sued by a British
subject in a Japanese or Chinese
Court claim to have his counter-
claim adjudicated upon in that
Court and in that action.
But the question depends on
the construction to be put on
each particular treaty which may
be in question.
The above case was one of
collision, in which, shortly, both
parties alleged that the other was
to blame. The British subject was
sued in Her Majesty’s Court for
Japan, and in reply lodged a coun-
terclaim, and asked that security
should be given by the Japanese
litigant to abide the result.
Lord Herschell, LC, in giving
judgment, said: “The defendant
[the British subject] has obtained,
' by virtue of a treaty made with his
Sovereign, complete immunity from
process in the Territorial Courts,
which would otherwise be open to
the plaintiff. It is difficult to see
on what grounds a British subject
can insist, when sued in his own
Consular Court, that the Court shall
take cognizance of, and adjudicate
upon, a claim which he makes
against a Japanese. It appears to
their lordships that it would be in
violation of the treaty, and in
excess of the jurisdiction which
the sovereign power of Japan, in
derogation of its own sovereign
rights, has granted to the British
Consular Courts, if it were to yield
to such a contention.”
Exercise of
jurisdiction
in foreign
country.
1032 53 a 54 VICT. c. 37.-—FOR. JURISDICTION ACT. [1890.
after have within a foreign country in the same and as
ample a manner as if Her Majesty had acquired that
jurisdiction by the cession or conquest of territory.
2. Where a foreign country is not subject to any
oval; Btritish government from whom Her Majesty the Queen might
lguifiiisein obtain jurisdiction in the manner recited by this Act,
Her Majesty shall by virtue of this Act have jurisdiction
over Her Majesty’s subjects for the time being resident
in or resorting to that country, and that jurisdiction
shall be jurisdiction of Her Majesty in a foreign country
within the meaning of the other provisions of this Act.
Xzildép’ngfin 3, Every act and thing done in pursuance of any
pursuance of jurisdiction of Her Majesty in a foreign country shall
Junsdmmn' be as valid as if it had been done according to the local
law then in force in that country.
Evidence as to 4, If in any proceeding, civil or criminal, in a court
existence or
extent ofjuris- in Her Majesty’s dominions or held under the authority
m of Her Majesty any question arises as to the existence
country‘ or extent of any jurisdiction of Her Majesty in a foreign
country, a Secretary of State shall, on the application
of the court, send to the court within a reasonable time
his decision on the question, and his decision shall for
the purposes of the proceeding be ﬁnal.
(2.) The court shall send to the Secretary of State, in
a document under the seal of the court, or signed by a
judge of the court, questions framed so as properly to
raise the question, and suﬂicient answers to those ques-
tions shall be returned by the Secretary of State to the
court, and those answers shall, on production thereof, be
conclusive evidence of the matters therein contained.
slack 5.—(1.) It shall be lawful for Her Majesty the
ments in First Queen in Council, if she thinks ﬁt, by Order to direct
Schedule‘ that all or any of the enactments described in the First
Schedule to this Act, or any enactments for the time
being in force amending or substituted for the same,
shall extend, with or without any exceptions, adapta-
1890.] 53 a 54 vrcr. 5. 37.—TRIAL or ACCUSED. 1033
tions, or modiﬁcations in the Order mentioned, to any
foreign country in which for the time being Her
Majesty has jurisdiction.
(2.) Thereupon those enactments shall, to the extent
of that jurisdiction, operate as if that country were a
British possession, and as if Her Majesty in Council
were the Legislature of that possession.
6.—(1.) Where a person is charged with an oﬁence
cognizable by a British court in a foreign country, any
person having authority derived from Her Majesty in
that behalf may, by warrant, cause the person so
charged to be sent for trial to any British possession
for the time being appointed in that behalf by Order in
Council, and upon the arrival of the person so charged
in that British possession, such criminal court of that
possession as is authoirzed in that behalf by Order in
Council, or if no court is so authorized, the supreme
criminal court of that possession, may cause him to be
kept in safe and proper custody, and so soon as con-
veniently may be may inquire of, try, and determine
the offence, and on conviction punish the offender
according to the laws in force in that behalf within that
possession in the same manner as if the offence had
been committed within the jurisdiction of that criminal
court.
Provided that——
(a.) A person so charged may, before being so sent
for trial, tender for examination to a British
court in the foreign country where the
offence is alleged to have been committed
any competent witness whose evidence he
deems material for his defence and whom he
alleges himself unable to produce at the trial
in the British possession:
(b.) In such case the British court in the foreign
country shall proceed in the examination
and cross-examination of the witness as
though he had been tendered at a trial
Power to send
persons charged
with oﬁ‘ences
for trial to
a British
possession.
1034. 53 a 54 vror. c. 37.—PUNISHMENT. [1890.
Provision as to
place of
punishment
of persons
convicted.
before that court, and shall cause the evi-
dence so taken to be reduced into writing,
and shall transmit to the criminal court of
the British possession by which the person
charged is to be tried a copy of the evidence,
certiﬁed as correct under the seal of the
court before which the evidence was taken,
or the signature of a judge of that court:
(0.) Thereupon the court of the British possession
before which the trial takes place shall
allow so much of the evidence so taken as
would have been admissible according to the
law and practice of that court, had the
witness been produced and examined at the
trial, to be read and received as legal evi-
dence at the trial:
(d.) The court of the British possession shall admit
and give effect to the law by which the
alleged offender would have been tried by
the British court in the foreign country in
which his oﬁence is alleged to have been
committed, so far as that law relates to the '
criminality of the act alleged to have been
committed, or the nature or degree of the
offence, or the punishment thereof, if the
law differs in those respects from the law in
force in that British possession.
(2.) Nothing in this section shall alter or repeal any
law, statute, or usage by virtue of which any offence
committed out of Her Majesty’s dominions may, irre-
spectively of this Act, be inquired of, tried, determined,
and punished within Her Majesty’s dominions, or any
part thereof.
7, Where an offender convicted before a British
court in a foreign country has been sentenced by that
court to suﬁer death, penal servitude, imprisonment, or
any other punishment, the sentence shall be carried into
effect in such place as may be directed by Order in
1890.] 53 a 54 VICT. c. 37.-vAL1n1TY or ACTS DONE. 1035
Council or be determined in accordance with directions
given by Order in Council, and the conviction and sen-
tence shall be of the same force in the place in which
the sentence is so carried into effect as if the conviction
had been made and the sentence passed by a competent
court in that place.
8. Where, by’ Order in Council made in pursuance of
this Act, any British court in a foreign country is
authorized to order the removal or deportation of any
person from that country, that removal or deportation,
and any detention for the purposes thereof, according
to the provisions of the Order in Council, shall be as
lawful as if the order of the court were to have effect
wholly within that country.
9. It shall be lawful for Her Majesty the Queen in
Council, by Order, to assign to or confer on any court
in any British possession, or held under the authority of
Her Majesty, any jurisdiction, civil or criminal, original
or appellate, which may lawfully by Order in Council
be assigned to or conferred on any British court in any
foreign country, and to make such provisions and
regulations as to Her Majesty in Council seem meet
respecting the exercise of the jurisdiction so assigned or
conferred, and respecting the enforcement and execution
of the judgments, decrees, orders, and sentences of any
such court, and respecting appeals therefrom.
10, It shall be lawful for Her Majesty the Queen in
Council to revoke or vary any Order in Council made in
pursuance of this Act.
11, Every Order in Council made in pursuance of this
Act shall be laid before both Houses of Parliament
forthwith after it is made, if Parliament be then in
session, and if not, forthwith after the commencement
of the then next session of Parliament, and shall have
effect as if it were enacted in this Act.
Validity of
acts done
under Order
in Council.
Power to
assign juris-
diction to
British courts
in cases within
Foreign
Jurisdiction
Act.
Power to
amend Orders
in Council.
Laying before
Parliament,
and eﬁ’ect of
Orders in
Council.
1036 53 8t 54 VICT. c. 37.—REPUGNANCY OF 0. IN C. [1890.
In what cases
Orders in
Council void
for repug-
nancy.
Provisions for
protection of
persons acting
under Foreign
Jurisdiction
Acts.
12,—(1.) If any Order in Council made in pursuance
of this Act as respects any foreign country is in any
respect repugnant to the provisions of any Act of Parlia-
ment extending to Her Majesty’s subjects in that
country, or repugnant to any order or regulation made
under the authority of any such Act of Parliament, or
having in that country the force and effect of any such
Act, it shall be read subject to that Act, order, or regu-
lation, and shall, to the extent of such repugnancy, but
not otherwise, be void.
(2.) An Order in Council made in pursuance of this
Act shall not be, or be deemed to have been, void on the
ground of repugnancy to the law of England unless it
is repugnant to the provisions of some such Act of
Parliament, order, or regulation as aforesaid.
13,—(1.) An action, suit, prosecution, or proceeding
against any person for any act done in pursuance or
execution or intended execution of this Act, or of any
enactment repealed by this Act, or of any Order in
Council made under this Act, or of any such jurisdiction
of Her Majesty as is mentioned in this Act, or in respect
of any alleged neglect or default in the execution of
this Act, or of any such enactment, Order in Council,
or jurisdiction as aforesaid, shall not lie or be instituted-—
(a) in any court within Her Majesty’s dominions,
unless it is commenced within six months next
after the act, neglect, or default complained of,
or in case of a continuance of injury or damage,
within six months next after the ceasing there-
of, or where the cause of action arose out of Her
Majesty’s dominions, within six months after
the parties to the action, suit, prosecution, or
proceeding have been within the juris-
diction of the court in which the same is in-
stituted; nor
any of Her Majesty’s courts without Her
Majesty’s dominions, unless the cause of action
arose within the jurisdiction of that court,
(5) in
1890.] 53 & 54 VICT. c. 37.—PROTECTED PERSONS.
1037
and the action is commenced within six months
next after the act, neglect, or default com-
plained of, or in case of a continuance of in-
jury or damage, within six months next after
the ceasing thereof.
(2.) In any such action, suit, or proceeding, tender of
amends before the same was commenced may be pleaded
in lieu of or in addition to any other plea. If the ac-
tion, suit, or proceeding was commenced after such
tender, or is proceeded with after payment into court of
any money in satisfaction of the plaintiff’s claim, and
the plaintiff does not recover more than the sum tendered
or paid, he shall not recover any costs incurred after
such tender or payment, and the defendant shall be
entitled to costs, to be taxed as between solicitor and
client, as from the time of such tender or payment; but
this provision shall not affect costs on any injunction in
the action, suit, or proceeding.
14. It shall be lawful for Her Majesty the Queen in
Council to make any law that may seem meet for the
government of Her Majesty’s subjects being in any
vessel at a distance of not more than one hundred miles
from the coast of China or Japan, as fully and effectually
as any such law might be made by Her Majesty in
Council for the government of Her Majesty’s subjects
being in China or in Japan.
Jurisdiction
over ships in
certain Eastern
seas.
15, Where any Order in Council made in pursuance Provision as to
of this Act extends to persons enjoying Her Majesty
protection, that expression shall include all subjects of
the several princes and states in India.
16, In this Act,—
The expression “ foreign country’ means any country
or place out of Her Majesty’s dominions :
3
The expression “ British court in a foreign coimtry ”
means any British court having jurisdiction out of
, subjects of
S Indian princes.
Deﬁnitions.
_1038 53 a 54 vIoT. 5. 37.—ACTS IN AID. [1890.
Her Majesty’s dominions in pursuance of an Order
in Council whether made under any Act or other-
wise:
The expression “jurisdiction ” includes power.
5,123‘ if my 17. The Acts mentioned in the Second Schedule to
A9“ in Second - this Act may be revoked or varied by Her Majesty by
Schedule. , .
Order 1n Council.
Repeal 18, The Acts mentioned in the Third Schedule to
this Act are hereby repealed to the extent in the third
column of that schedule mentioned : Provided that,—
(1) Any Order in Council, commission, or instruc-
. tions made or issued in pursuance of any enact-
ment repealed by this Act shall, if in force at
the passing of this Act, continue in force, until
altered or revoked by Her Majesty, as if made
in pursuance of this Act; and shall, for the
purposes of this Act, be deemed to have been
made or issued under and in pursuance of this
Act; and
(2.) Any enactment, Order in Council, or document
referring to any enactment repealed by this
Act shall be construed to refer to the cor-
responding enactment of this Act.
Short title -19,—(l.) This Act may be cited as the Foreign J uris-
diction Act, 1890.
(2.) The Acts whereof the short titles are given in
the First Schedule to this Act may be cited by the
respective short titles given in that schedule.

1890.] 53 a 54 VICT. c. 37.-AcTs IN AID. 1039


SCHEDULES.
FIRST SCHEDULE.
S . d Ehnatcltmentts) ession an - w 10 may 6 | -
Chapter. Tltle' , extended by Order 1 Short Title’
in Council.
12 8c 13 Vict. c. 96.- An Act to provide for the Pro- The whole Act 1 - I Admiralty Of-
secution and Trial in Her I fences(Colonial)
Majesty’s Colonies of Offences Act, 184,9,
committed within the juris- '
diction of the Admiralty. ]
148515 Vict. 0.99.- An Act to amend the law of Sectionssevenand ] Evidence Act,1851.
evidence. _ ] eleven.2 ]
17 8.118 Vict. 0.104. The Merchant Shippmg Act, I Part X? i
1854. l ‘
19 8020 Vict. c. 113. An Act to provide for taking The whole Act‘ - 3 Foreign Tribunals
evidence in Her Majesty’s Do- ‘ ] Evidence Act,
minions in relation to civil and 1856.
commercial matters pending
before Foreign tribunals.
22 Vict. c. 20.- - An Act to provide for taking The whole Act5 - Evidence by Com-
evidence in Suits and Proceed- mission Act,
ings pending before Tribunals 1859.
in Her Majesty’s Dominious,
in places out of the jurisdic-
tion of such tribunals.
22 8t 23 Vict. c. 63.- An Act to afford Facilities for The whole Act 6 - British Law Ascer-
the more certain Ascertain- tainment Act,
ment of the Law administered 1859.
in one part of Her Majesty’s
Dominions, when pleaded in
the Courts of another part '
thereof. _
28 & 24 Vict.c. 122. An Act to enable the Legisla- The whole Act7 - Admiralty O f-
tures of Her Majesty’s Posses- fences( Colonial)
sions Abroad to make enact- Act, 1860.
ments similar to the Enact—
ment of the Act ninth George
the Fourth, chapter thirty-one,
section eight. _
248025 Vict.c.1].- An Act to afford facilities for 1 The whole Act 8 - Foreign Law As-
the better ascertainment of l certainmentAct,
the Law of Foreign Countries 1861.
when pleaded in Courts within
Her Majesty’s Dominions. '
30 8t 31 Vict. c. 124. The Merchant Shipping Act, Section eleven.’
1867. .
37 8t 38 Vict. c. 94. - Tlke Conveyancing (Scotland) 1 Section ﬁfty-one 1°
Ct, 1874.
441 8: 45 Vict. c. 69.- Thes Fugitive Offenders Act, The whole Act.11
18 1.
48 8c 49 Vict. c. 74.- The Evidence by Commission The whole Act.12
Act, 1885. I

l
1 See ante, p. 703.
2 Proof of Foreign Statutes and Judgments.
3 See Part 8 of Act of 1894, ante, p. 977.
4 Citation of witnesses.
5 Sec. 6 extended by 48 8t 49 Vict. c. 74. s. 5. 4
6 One court can remit a case to another court for its opinion as to the law
applicable to the facts, but neither the RC. nor the H.L. need adopt that opinion.
7 9 Geo. 4. c. 31. offences against the person; see 24 8t 25 Vict. c. 100. and
amending Acts.
8 Power given to Sup. British Court by convention with foreign state to remit a
case with queries to a foreign court for its opinion, and vice versd.
9 See ante, p. 994, sec. 686, 57 80 58 Vict. c. 60.
10 Production of the probate of a will granted in any British colony or depen-
dency to be as effectual as production of the will.
11 Ante, p. 826.
12 Amend. 22 Vict. c. 20. Power to nominate a ﬁt person to take evidence outside
the jurisdiction.
Sections 5, 19.
1040 5a a 54 VICT. c. 37.--ACTS REPEALED. [1890.
Section 17 .
Section 18.
SECOND SCHEDULE.
Acts which may be revoked or varied by Order in Council.

Session and Chapter. Title. Extent of Repeal.

24 & 25 Vict. c. 31.- An Act for the prevention The whole Act.
and punishment of offences
committed by Her Ma-
jesty’s subjects within cer-
tain territories adjacent to
, the colony of Sierra
1 Leone.1
26 8t 27 Vict. c. 35.- l An Act for the prevention
1 and punishment of offences
committed by Her Ma-
jesty’s subjects in South
Africa.2
The whole Act.


THIRD SCHEDULE.
Enactments repealed.

Session and Chapter. Title or Short Title. Extent of Repeal.

6 8t 7 Vict. c. 94. - r The Forzieign J urisdictionAct, The whole Act.
‘ 1843.
An Act to conﬁrm an Order
in Council concerning the
exercise of jurisdiction in
matters arising within the
kingdom of Siam.4
The Foreign Jurisdiction Act
Amendment Act, 1865.5
The Foreign Jurisdiction Act
Amendment Act, 1866.6
20 & 21 Vict. c. 75.- The whole Act.
28 8t 29 Vict. c. 116. k The whole Act.


29 & 30 Vict. c. 87 .- The whole Act.
1 West African Settlements Act. Power to appoint magistrates in territory
adjacent to Sierra Leone, &c.
2 Power to punish crimes committed to the southward of 25 deg. of S. Lat. and
outside the jurisdiction of any civilized government in South Africa.
3 See p. 825.
4 Extending 6 8c 7 Vict. c. 94. to Siam, with power to British consul to hear civil
and criminal suit with an appeal to Singapore. See p. 1013 and n. 1 on next page.
'5 See n., p. 743.
6 Power given by O. in C. to confer on any court in any of Her Majesty’s posses-
sions out of UK. any jurisdiction, civil or criminal, original or appellate, which
H.M. in Council might by O. in C. confer on any court in any country out of
H.M.’s dominions within which H.M. has power or jurisdiction.
1890.] 53 a 54 VICT. 5. 37.-ACTS REPEALED. 1041
Third Schedule-_--Enactments repealed—cont.

Session and Chapter. Title or Short Title. Extent of Repeal.

l
l
33 & 34 Vict. c. 55.- i The Siam and Straits Settle- The whole Act.
{ ments Jurisdiction Act,
, 1870.1
38 & 39 Vict. c. 85.- 1 T heForeign Jurisdiction Act, The whole Act.
. 1875.2
39 -& 40 Vict. c. 46.-
An Act for more effectually Sections four and
' punishing offences against six.
the laws relating to the
slave trade.3
41 & 42 Vict. c. 67.- ! The Foreign Jurisdiction Act, The whole Act.
i 1878}
1 Explaining 20 8c 21 Vict. c. 75. and giving appeal to S.C. of Straits Settlements
in place of old S.C. of Singapore.
2 Validity of acts of magistrate, &c., exercising jurisdiction under O. in C. out of
Her Majesty’s dominions, removing or deporting or detaining any person from or in
that country. See 44 & 45 Vict. c. 69., ante, p. 826.
3 India.
4 A note of this Act is given ante, p. 825.

Norm—Authority exercised in Africa (continent and Madagascar), Brunei,
China, Japan, and Corea, C) prus, Egypt, Gold Coast (territories adjacent to),
Lagos (territories adjacent to), Morocco, Muscat, Persia, Persian coasts and
islands, Siam, Somali coast of the Gulf of Aden, South Africa, Tonga, Tripoli,
_ Turkey, Western Paciﬁc, Zanzibar. St. R. 1893.
The printed case of the Appellant, and of the Respondent to an appeal, must be
printed in a certain way. For directions for binding printed cases, and the number
(generally ﬁfty) of printed copies of the appeal to be lodged for the use of the
Judicial Committee, see liules and Regulations made under the Order in Council
dated 24 March 1871.
s 2340. 3. U
( 1042 )
Aug. 1, 2, 6, 7,
1895 ; May 9,
1896.
CASES (ante)
REFERRED To:
Citizens’ Ins.
Co. c. Parsons,
258; Cushing
'v. Dupuy, 80;
Tennant 2).
Union Bank,
295 ; Att.-Gen.
of Ontario '0.
Att.-Gen. of
Canada, 302;
Russell '0. Reg,
129; Hodge '0.
Reg. 135;
Dobie v.
Temporalities
Board, 272.
APPENDIX C.

ATT.-GEN. or ONTARIO . . Appellant.
ATT.-GEN. or THE DOMINION.
AND
THE DISTILLERS’ AND BREWERS’ Respondents-
ASSOCIATION .
Constitutional Law—Prohibition—Liquor Traﬁic— Conﬂict of
Laws—Relative Positions of Laws by Parliament of Canada
and Provincial Assemblies—Canada Temperance Act 1886
[R S.C. 1886, c. 106. p. 14~Ol]——Ontario Licence Laws, 53
Vict. c. 56. s. 18, explained by 54 Vict. c. 46.
Held :—
(1.) That Russell v. The Queen, in so far as it decided that the
Canada Temperance Act of 1878, which had been adopted by a district
of the province of New Brunswick, was within the competency of the
Dominion Parliament—as being an Act passed “ for the peace, order,
and good government of Canada,” within the meaning of the general
and introductory enactments of sec. 91, B.N.A. Act, 1867—and con-
stituted the paramount law within such district, is a precedent applicable
to the Canada Temperance Act of 1886.
(2.) That the Canada Temperance Act of 1886, not having been
adopted by any district of the province of Ontario, was not in force
within that province.
(3.) That the provincial legislature of Ontario, there being no enact_
ments of the Dominion Parliament upon the same subject in force
within the province, had authority under sec. 92 of B.N.A. Act 1867
to pass a prohibitory liquor law, the scope and objects of which were in’
their nature local and provincial.
(4.) That the enactments of sec. 18 of 53 Vict. c. 56. and of the
explanatory Act, 54 Vict. c. 46. were, in these circumstances within
the competency of the legislature of Ontario. ’
Among the reasons assigned for these conclusions, the following pro-
positions were stated :—
It is settled law, that according to the scheme of the B.N.A. Act, the
enactments of the Parliament of Canada, in so ‘far as they are within its
competency, must override provincial legislation. But that Parliament
has no authority conferred upon it to repeal directly any provincial
statute, whether it does or does not come within the limits of jurisdiction
prescribed by sec. 92.
B.N.A. ACT, 5. 92 (9)—LIQUOR PROHIBITION. 1043
The repeal of a provincial Act by the Parliament of Canada can only
be effected by repugnancy between its provisions and the enactments of
the Dominion; and if the existence of such repugnancy should become
matter of dispute, the controversy cannot be settled by the action of
. either the Dominion or the provincial legislature, but must be sub-
mitted to the judicial tribunals of the country.
Neither the Parliament of Canada nor the provincial legislatures have
authority to repeal statutes which they cannot directly enact. Nor can
the Parliament of Canada pass a prohibitory liquor law which does
not apply to the whole realm. -
The exception at the end of sec. 91, RNA. Act, 1867, includes
all the matters in the 16 sub-sections of sec. 92 : but it does not derogate
from the legislative powers given to provincial legislatures by_those
sub-sections, save to the extent of enabling the Parliament of Canada
to deal with matters, local or private, in those cases where such legislation
is necessarily incidental to the exercise of the powers conferred upon it
by the sub-sections of sec. 91.
The introductory enactment of sec. 91 relating to laws for the peace,
order, and good government of Canada not coming within the classes of
subjects assigned exclusively to the legislatures of the provinces, may
embrace matters not included in the sub-sections of sec. 91 , upon which
the Parliament of Canada has power to legislate, because they concern
the peace, order, and good government of Canada. But in legislating
on these matters the Parliament of Canada has no authority to encroach
upon any class of subjects which is exclusively assigned to the provincial
legislatures by sec. 92; therefore, the exercise of legislative power by
the Parliament of Canada in relation to all matters not enumerated in
sec. 91 ought to be strictly conﬁned to such matters as are unquestion-
ably of Canadian interest and importance, and ought ,not to trench upon
provincial legislation with respect to any of the classes of subjects
enumerated in sec. 92.
The Parliament of Canada derives no authority from the introductory
enactment of sec. 91 to deal with any matter which is in substance local
or provincial, and which does not truly affect the Dominion as a whole.
Sub-sec. 8 sec. 92 only gives a provincial legislature the right to
create a legal body for the management of municipal affairs.
Since the date of the confederation a provincial legislature cannot
delegate any power which it does not possess.
Sub-sec. 9 sec. 92 does not give provincial legislatures any right to
enact laws for the abolition of the liquor traﬁ‘ic.
Sub-sec. 16 sec. 92 has the same oﬁice which the general enactment,
with respect to matters concerning the peace, order, and good govern-
ment of Canada, so far as supplementary of the enumerated subjects,
fulﬁls in sec. 91.
A power to regulate a trade, under sub-sec. 2 sec. 91 B.N.A. Act,
implies the continued existence of that which is to be regulated or
governed; power to pass a prohibitory Act is not given by that sub-
section.
When the adoption of a Dominion Act is left to the option of a pro-
vince, or of a provincial district, until that option is exercised, there can
be no repugnancy between its provisions and those of a provincial Act
with the same objects.
The vice of intemperance may prevail in particular localities within
a province to such an extent as to constitute its cure by restricting or
prohibiting the sale of liquor a matter of a merely local and private
nature, falling primdfacie within sub-sec. 16 of sec. 92.
ATT.-GEN. or
Ox'mmo o.
ATT.-GEN. or
THE DOMINION.
3112
10441 B.N.A. ACT, s. 92 (9).—-LIQUOR PROHIBITION.
ATT.-GEN. or
ONTARIO ~v.
ATT.-GEN. or
THE DOMINION.
Some matters in their origin local and provincial may attain such
dimensions as to affect the body politic of the Dominion, and to justify
the Canadian Parliament in passing laws for their regulation or abolition.
But great caution must be observed in distinguishing between that which
is local and provincial, and that which has ceased to be merely local and
provincial, and has become matter of national concern.
The general scheme of the Canada Temperance Law of 1886, which
is applicable to all the provinces of Canada, is to give to the electors of
every county or city the option of adopting or declining to adopt the
prohibitions of the second part of the Act. If a majority of the electors
of the county or city are against the adoption, the question is not to be
introduced during the next three years. The second part, when
adopted, makes it unlawful for any person, or his agent, on any pretence
whatever, to sell any intoxicating liquor. In effect the Act, if and
when adopted, superseded the liquor-prohibiting clauses of the Act of
1864, passed by the old province of Upper Canada, now Ontario.
The 18th section of the Ontario Act, 53 Vict. c. 56., after reciting
previous legislation, and that the Temperance Act of 1864 had
been repealed in municipalities where not in force by the Canada
Temperance Act, and that it was expedient that municipalities should
have the powers by them formerly possessed, re-enacts the provisions
of the consolidated Municipal Act of 29 & 3O Vict. c. 51. s. 249,
sub-s. 9, which were similar to those of the Act of 1864, and which pro-
vided, inter alia, that, “ The Council of every township, city, town, and
incorporated village, may pass by-laws for prohibiting the sale by
retail of spirituous, fermented, or other manufactured liquors, in any
tavern, inn or other house or place of public entertainment, and for
prohibit-ing altogether the sale thereof in shops and places other than
houses of public entertainment; provided that the by-law before the
ﬁnal passing thereof has been duly approved of by the electors of the
municipality.” 54 Vict. c. 46. explained that 53 Vict. c. 56. was
only intended to apply to retail transactions.
Held, as above directly decided—That sec. 18 of the Ontario Act,
53 Vict. c. 56., is valid, subject to the qualiﬁcation that its provisions
are or will become inoperative in any district of the province which
has already adopted or may subsequently adopt the second part of the
Canada Temperance Act of 1886.
For the facts and opinions of the
judges in the Supreme Court, see
ante, p. 162. The appeal was heard
before the Judicial Committee, com-
posed of Lord Halsbury, L.C., Lord
Herschell, Lord Watson, Lord
Davey, and Sir R. Couch; Lord
Morris did not attend after the
second day. Maclellan and Barton,
J J . (Ontario), being present in
court, the Lord Chancellor sent
round Mr. Geo. Pearson Wheeler,
to invite their Lordships to seats
within the Bar; and they attended
every day‘.
Maclaren, QC. (of the Canadian
B.N.A. ACT, 5. 92 (9).-—LIQUOR PROHIBITION. 1045
Bar), and Haldane, Q.C., were for
the Att.-Gren. of Ontario, the for-
mer also being for the Att.-Gen. of
Manitoba. Newcome, QC. (of the
Canadian Bar), and H. W. Loehnis
for the Att.-Gren. of the Dominion.
The Hon. Edward Blake, Q.C.,
and Nesbitt (both of the Canadian
Bar) appeared for the Distillers’
and Brewers’ Association. The
two leaders for the respondents
only being heard.
Solicitors for Ontario, Fresh-
ﬁelds and Williams‘; for the Do-
minion of Canada, Bompas, Bis-
choﬁ, Dodgson, and Co.; for the
Distillers’ and Brewers’ Association
of Ontario, Linklater and Co.
Maclaren, Q.C.: There were
contrary decisions on the same day
in the S. C. on this question
[see ante, p. 162-4.], and we say the
Act is valid, and that the decision
of Sir Henry Strong, C.J., Four-
nier and Taschereau, Jl, was
right, and the decision of Gwynne,
Sedgewick, and King, J J ., was
wrong. We ask from this Board
an aﬂirmative answer to all the
questions [see ante, p. 163]. The
ﬁrst six are general, and do not
refer to any existing legislation.
The seventh is the important
query. It refers to the 18th section
of the Ontario Act of 1890 [see ante,
p. 162], which is an independent
piece of legislation, distinct from
the rest of that Act. That legis-
lation is comprised within the term
“ Municipal Institutions,” sub-
sec. 8, sec. 92. The B.N. A. Act
is based almost exclusively upon
the Quebec Resolutions (see parti-
cularly No. 43, ante, p. 750),
and in interpretating particular
expressions embodied in the Act.
Canadian legislation is useful in
deciding what these particular ex-
pressions mean. Now the term
“Municipal Institutions” is used
in the B. N. A. Act in the sense in
which those words were understood
in Canadian legislation existing at
the date of the B. N. A. Act. And
“ Municipal Institutions” involves
not only the right to create these
corporations, but also to give them
such powers as were understood to
have been within the meaning of the
phrase “ Municipal Institutions.”
The term was, so to speak, borrow-
ed from the legislation of Canada,
it not being used in the legislation
of Nova Scotia or New Brunswick,
so that it would be the powers
which were enjoyed in Canada:
and I say these powers were given
to the legislation of Nova Scotia
and New Brunswick if they saw ﬁt
to exercise them. There is no
doubt that out of the powers con-
ferred on municipal institutions
previous to confederation must be
taken, so far as local legislation
is concerned, all those subjects
assigned to the Dominion in sec. 91.
Citizens’ Insurance Co. v. Parsons
[see ante, p. 262, line 14; in P. C.
26 Nov. 1881, 7 App. Cas. 96;
51 L. J. P. C. 11; 45 L. T. 721];
Slavin v. Corp. of Orillia (1874:)
[36 U. C. Q. B. 175; ante, p. 213],
where Richards, C.J., was of
opinion the words “ Municipal In-
stitutions” were used in a general
sense, and included such powers
as had hitherto been understood
in Canada to belong to such
institutions prior to 1867, namely,
powers with respect to the traffic
in intoxicating liquors. The word
“ municipality” is not mentioned
in sec. 91. [Lord W'atson :
Practically, the whole power of
legislation is divided between the
Dominion and the provinces] See
Hodge v. The Queen [(mte,
p. 141 ; in P. C. Dec. 15, 1883, 9
App. Cas. 117; 53 L. J. P. C.
1; 5O L.T. 301] for what is com-
prised within “Municipal Institu-
tions.” It was there said:
“Their Lordships proceed now
to consider the subject-matter and
legislative character of secs. 4 and 5
of ‘The Liquor License Act of
1877, c. 181, Revised Statutes of
Ontario.’ That Act is so far con-
ﬁned in its operation to munici-
palities in the province of Ontario,
and is entirely local in its character
and operation. It authorizes the
1046 B.N.A.. ACT, 8. 92 (9).—LIQUOB PROHIBITION.
appointment of License Commis-
sioners to'act in each municipality,
and empowers them to pass, under
the name of resolutions, what we
know as by-laws, or rules to deﬁne
the conditions and qualiﬁcations
requisite for obtaining tavern or
shop licenses for sale by retail of
spirituous liquors within the muni-
cipality; for limiting the number
of licenses; for declaring that a
limited number of persons qualiﬁed
to have tavern licenses may be
exempted from haviu g all the tavern
accommodation required by law,
and for regulating licensed taverns
and shops, for deﬁning the duties
and powers of license inspectors,
and to impose penalties for infra-c-
tion of their resolutions. These
seem to be all matters of a merely
local nature in the province, and to
be similar to, though not identical
in all respects with, the powers
then belonging to municipal insti-
tutions under the previously exist-
ing laws passed by the local
parliaments.
“ Their Lordships consider that
the powers intended to be conferred
by the Act in question, when pro-
perly understood, are to make regu-
lations in the nature of police or
municipal regulations of a merely
local character for the good govern-
ment of taverns, &c., licensed for
the sale of liquors by retail, and
such as are calculated to preserve,
in the municipality, peace and
public decency, and repress drunk-
enness and disorderly and riotous
conduct. As such they cannot be
said to interfere with the general
regulation of trade and commerce
which belongs to the Dominion
Parliament, and do not conﬂict
with the provisions of the Canada
Temperance Act, which does not
appear to have as yet been locally
adopted.
“The subjects of legislation in
the Ontario Act of 1877, secs. 4
and 5, seem to come within the
heads Nos. 8, 15, and 16 of sec. 92
of British North America Statute,
1867.”
Therefore, in that case, this
Board gave a much wider meaning
to sub-sec. 8 of sec. 92 than the
mere creation of municipal corpora-
tions, and the conferring upon them
of such powers as are conferred
upon the local legislatures by the
other sections.
And the question can be
answered in our favour without in-
terfering with Russell 2:. The Queen.
That case settled the lawfulness of
the Canadian Temperance Act.
[Lord Davey : And consistent with
regulations by the municipalities for
regulation of police. Lord Hals-
bury, L.C.: And Russell 1). The
Queen depended upon the subject
matter being one which was in-
tended to be regulated according
to general orders throughout the
whole Dominion] Yes. [Lord
Watson : In that view the question
will come to be whether the Pro-
vincial Government have exceeded
their powers of regulation in pass-
ing that Act, whether it is regula-
tion at all or is in effect prohibi-
tion. Lord Herschell: If it is
within the speciﬁed subjects men-
tioned in sec. 91, then clearly all
matters although merely local, and
under sec. 91, are out of the power
of the provincial legislature. But
if it is not to be found in any of
the speciﬁed subjects in sec. 91,
and is merely local, then the ques-
tion arises whether there is any-
thing in sec. 91 to take it out of
the full operation of the Act.]
[Lord Watson: If you can show
that the enactments in question do
not go beyond “regulations,”
Russell c. The Queen [ante,
p. 129; in P. C. June 23, 1882,
7 App. Cas. 829; 51 L. J. P. C.
77; 46 L. T. 889] may be a judg-
ment in your favour, for that case
suggests that whilst laying down
the lines of trading is within the
competency of the Dominion Parlia-
ment, yet after these lines are laid
down there will remain with the
local legislatures the power of regu-
lating local sales; and one ques-
tion is, can you show that this
B.N.A. ACT, S. 92 (9).-LIQUOR PROHIBITION. 1047
see. 18 is a regulation of that cha-
racter P] Now before confederation,
the expression “Municipal Insti-
tutions ” had in various Acts of
Parliament been given a well-
deﬁned meaning. The following
Acts show the regulations which
had been in force in Canada on
this subject. The ﬁrst Municipal
Act in Canada was passed by the
province of Canada for Upper
Canada alone. The province had
the local Act of 1849, 12 Vict.
(1849) c. 81. The expression is
not used in that Act, but in that
Act of 1849 there are certain
municipalities created and certain
powers given. Then comes the Act
respecting the municipal institutions
of Upper Canada. That Act is 22
Vict. U. C. c. 99., and sec. 245 was:
“The council of every township,
city, town, and incorporated village
may respectively pass by-laws.”
And sub-sec. 6 : “ For prohibiting
the sale by retail of spirituous, fer-
mented, or manufactured liquors in
any inn or other house of public
entertainment ; and for prohibiting
the sale thereof in shops and places
other than houses of public enter-
tainment; provided the by-law
before the ﬁnal passing thereof
has been duly approved by the
electors of the municipality in the
manner provided by this Act.”
That shows the provinces did claim
such powers as we are now claim-
ing, and that the prohibitory
powers were theirs. See also C. S.
U. C. 1859, c. 54. s. 246; 2980 30
Vict. c. 51. s. 249. And as to
Lower Canada, 16 Vict. c. 214.;
18 Vict. 0.100. s. 23; 19 d: 20
Vict. c. 101. s. 11; L. C. C. S.
1861, c. 24. s. 26, sub. ss. 10, 11 ;
29 & 30 Vict. c. 32. s. 2. Then as
to Nova Scotia, see R. S. N. S.
(4th Ser.) 0. 75.; and as to New
Brunswick, Pub. S. N. B. 1854,
c. 15. s. 29. And the Temperance
Act of 1864 (Dunkin’s Act) was the
27 & 28 Vict. c. 18. See also Reg.
22. Taylor [ante, p. 55], 36 U. C.
Q. B. 218; Coey 'v. Corporation
of Brome, 14 L. N. 370, and Keefe
v. Maclennan, 11 N. S. (2 Russ.
& Ch.) 5, holding this kind of
provincial legislation was valid.
Burton, J., in In re Ontario Local
Option Act [ante, p. 209; 18
C. A. B’. 573], said under the Con-
federation Act the “Municipal
Institutions” in the province are
in the class of subjects within ex-
clusive provincial legislation. It
may be safely said that there is no
apparent intention in the Federation
Act to curtail or interfere with the
existing general powers of municipal
councils unless the Act plainly
transfers any existing powers to
the Dominion jurisdiction.” His
Lordship then considers the ques~
tion of its having an interference
with trade and commerce. See
also Lynch, J., in Lupine 2*.
Laurent, l7 Que. L. R. 226;
and T aschereau, J., in Huson v.
South Norwich, ante, p. ‘198.
This is not an Act of total pro-
hibition of sale by retail. They
can still sell provided they do not
sell under three gallons or one
dozen bottles at one time. The Act
is a matter merely of the withhold-
ing of Tavern and of Shop licenses.
As to see. 129, the provincial
legislature, having purported in
1869 to repeal these provisions, in
1890 passed this Act to re-enact
them. Under sec. 129,all existing
legislation was preserved. But
existing legislation could be altered
by the Dominion, if within one of
the Dominion classes of subjects.
[Lord Herschell: If there is no
power to make this enactment,
there seems strong argument in fa-
vour of there having been no power
to repeal it] [M r. Blake : The old
Act is repealed in away by the Do-
minion: See Schedule, Appendix
B., p. 3, R. S. C.] That brings the
question back to the same question,
is this within the jurisdiction of
the Dominion or the province?
[Lord Herschell: If it is not one
of the things speciﬁcally included
within sec. 91 ; and it is local in its
character ; and does not go beyond
the locality; why should it not be
1048
B.N.A. ACT, s. 92 (9).—LIQUOR PROHIBITION.
included in sub-sec. 16, sec. 92?
Dealing with the liquor tratﬁc,
might not both the Dominion and
the provinces deal with it? No
doubt the Dominion legislation
must override the provincial legis-
lation, but in a matter of this kind
this Board has evidently left open
the question whether the liquor
traﬁic could be dealt with
by the provinces in a manner
not inconsistent with Dominion
legislation. Russell’s case [av/ate,
p. 129, full reference above] did
not decide that the province might
not legislate within the province for
a thing which aﬁected only the
province] Yes. See L’Union St.
Jacques de Montreal 2). Dame Julie
Belisle [ante, p. 329; in P. C.
July 8, 1874, L. R. 6 P. C. 31;
31 L. .T. 111; 22- W. R. 933;
and Att.-Gen. of Ontario 1). Att.-
Gen. of the Dominion, ante, p. 302].
This Board has laid down the rule
that it is necessary to look at the
nature and character of the legisla-
tion in order to determine which
authority has the jurisdiction. Now
the difference between this legis-
lation and the Canada Temper-
ance Act is very marked. The
latter had nothing to do with muni-
cipal institutions, and it does not
cover the whole liquor traffic
ground, and, although on the
statute book, it does not practically
exist or possess the force of law
until the district has adopted it.
No doubt if the Canada Temper~
ance Act were put in force by Act
and Proclamation, in such a case
this legislation would be inopera-
tive. This is a mere local matter
simply regulating a matter of a
local and private nature in the
province, which the province may
legislate upon under sec. 92 until
that is overridden by Dominion
legislation which comes actively
into force. And this is very
much like the legislation con-
sidered in the two cases cited
above, namely that it was good
legislation on its own ground, so
long as there was no Dominion
legislation of a general nature over-
riding it.
That is all I would claim for
this law in the present case.
Then, as I have said, the nature
of the Act in Russell’s case—the
Canada Temperance Act ——was
entirely different. [Lord Her-
schell: In Russell’s case it was
held not to be excluded from the
Dominion jurisdiction as a local
matter, because the Dominion
Parliament might deal throughout
the whole of Canada with any sub-
ject that was not speciﬁcally de—
scribed in the heads of 92, wherever
they thought it was for the good of
the country there should be such
legislation, and then each province
could not say, “ You cannot do
that because it applies to us, and is
therefore a local matter.” That is
all that Russell’s case decided]
That is the eﬂect of the decision.
[Lord Herschell: Russell’s case
was an attempt to prevent the
Dominion legislature dealing with
a matter not within any of the
headings in sec. 92, because it was
a local matter. But their Lordships
said it was not a local matter.
They said, “Their Lordships can-
not concur in this view. The de-
clared object of Parliament in
passing the Act is that there should
be uniform legislation in all the
provinces respecting the traliic in
intoxicating liquors, with a view to
promote temperance in the Do-
minion. Parliament does not treat
the promotion of temperance as
desirable in one province more
than in another, but as desirable
everywhere throughout the Do-
minion. The Act, as soon as it
was passed, became a law for the
whole Dominion, and the enact-
ments of the ﬁrst part, relating to
the machinery for bringing the
second part into force, took ell'ect
and might be put in motion at once
and everywhere within it. It is
true that the prohibitory and penal
parts of the Act are only to come
into force in any county or city
upon the adoption of a petition to
B.N.A. ACT, s. 92 (9).-—LIQUOR PROHIBITION. 1049
that effect by a majority of electors,
but this conditional application of
these parts of the Act does not con-
vert the Act itself into legislation
in relation to a merely local matter.
The objects and scope of the legis-
lation are still general, viz., to
promote temperance by means of a
uniform law throughout the Do-
minion.] That is the extent of
that case. It was explained in
Hodge v. The Queen. “It ap-
pears to their Lordships that
Russell 1). The Queen when pro-
perly understood is not an authority
in support of the appellants’ con-
tention, and their Lordships do not
intend to vary or depart from the
reasons expressed for their judg-
ment in that case. The principle
which that case and the case of the
Citizens’ Insurance Company illus'
trates is, that subjects which in one
aspect and for one purpose fall
within sec. 92, may in another
aspect and for another purpose fall
within sec. 91.” Now I claim
the beneﬁt of that. They are dis-
cussing Russell 1). The Queen
and they say that the subject-
matter of Russell 2). The Queen is
one which in one aspect might fall
under Dominion authority, and in
the other aspect may fall under
provincial authority. S0 that
Russell '1). The Queen as explained
by Hodge v. The Queen goes to
support our contention that there
may be on the same subject valid
Dominion legislation and valid
provincial legislation. [Lord Her-
schell: Suppose the Dominion
Legislature had not passed any
legislation, would it be within
the power of the provinces to pass
legislation on such things as poi-
sons ?] The provinces are in the
same position as before the Union,
and until the Dominion legislates
the provinces can. Att—Gen. of
Ontario 22. Att.-Gen. of the Do-
minion [ante, p. 302; in P. C.
Feb. 24, [1894] A. C. 189; 63
L. J. P. C. 59]. [Lord Herschell:
The provision that poisons shall
not be sold except under certain
restrictions is a regulation with re-
gard to that particular trade, and
it is hardly conceivable that that
should be intended to be taken
away from the provinces and that
therc should be nothing at all done
except by an Act dealing with the
whole Dominion. Many other in—
stances could be put. The ques-
tion is, where is the line of demar-
cation between these matters of
local and general regulation to be
drawn P] We claim this is a valid
regulation; a regulation so well
known that there is no conﬂict
with the Dominion legislation.
[Lord \Vatson: Sir Montague
Smith said, in Parsons’ case [ante,
_ pp. 258, 263, full reference above],
that there may be three kinds of
regulation. It may belong exclu-
sively to the provinces. It may be
that the Dominion can exclude the
provinces from exercising some
statutory power, and it may also be
that the Dominion have the power
to override entirely the provincial
legislation. [Lord Herschell:
What this Board said in Russell '0.
The Queen [ante, pp. 129, 133, full
citation above] was that, although
it may be a local matter exclusively
within the province’s jurisdiction,
when legislating for its own pro-
vince, and the local legislation is
conﬁned to that, the legislation be-
comes a different matter, and not
merely a local matter—and, there-
fore, not excluded from the Do-
minion Parliament when it is dealt
with as a matter essentially with
regard to the peace, order, and
good government of the Dominion,
and therefore to be treated through-
out the Dominion alike. For in-
stance, a local Act with reference
to carrying ﬁrearms might be pure-
ly local, and that would be exclu-
sively for the local legislature. On
the other hand, you could not ex-
clude, nor could it be intended to
exclude, the right of the Dominion
Parliament, if it thought ﬁt and
necessary to take steps for the
safety of the whole community, to
make more stringent regulations,
1050 B.N.A. ACT, S. 92 (9).—LIQUOR PROHIBITION.
and to say, “ You shall not carry
ﬁrearms at all while war is going
on,” &c. That would make the
matter for the “ peace, order, and
good government ” of the whole
Dominion, and would not be in-
operative because of provincial regu-
lation within a province. That is,
you might have a matter of a local
nature, within sub-sec. 16, sec. 92,
and yet the same matter might be
overridden by the superior legisla-
tion of the Dominion Parliament,
under its general powers. The
view being this, if it is a matter in
which the Dominion is interested,
and which the Dominion Parlia—
ment so determines, then it ceases
to be a “ merely local matter ” in
the provinces, as long as Dominion
legislation exists about it] Then
came the question on the Dominion
—-the Liquor Licensing Acts of
1883—4, almost identical with this
Act. The Supreme Court to which
the questions were ﬁrst referred de-
cided that the Acts were ultra tires
as far as licenses were concerned, but
not as regards wholesale and vessel
licenses. That was brought before
this Board [ see argument and Or-
der in Council, ante, pp. 144, 158.]
[Lord Herschell: It seems clearly
to be involved in that decision that
this Board held that the Acts did
not come within the regulation of
“trade and commerce.” That Act
which the Board held to be ultra
vires was almost identical with this
Act. That case decided that “ the
words ‘ regulation, of trade and
commerce,’ in their unlimited sense,
are suﬁiciently wide, if uncontrolled
by the context and other parts of
the Act, to include every regulation
of trade ranging from political
arrangements in regard to trade
with foreign governments, requiring
the sanction of Parliament, down
to minute rules for regulating par-
ticular trades. But a consideration
of the Act shows that the words
were not used in. this unlimited
sense. In the ﬁrst place, the collo-
cation of No. 2, sec. 91, with classes
of subjects of national and general
concern aﬁords an indication that
regulations relating to general trade
and commerce were in the mind of
the legislature, when conferring
this power on the Dominion Parlia~
ment. If the words had been in_
tended to have the full scope of
which in their literal meaning they
are susceptible, the speciﬁc mention
of several of the other classes of
subjects enumerated in sec. 91
would have been unnecessary; as,
15, banking ; 1'7, weights and mea-
sures; 18, bills of exchange and
promissory notes; 19, interest;
and even 21, bankruptcy and insol—
vency.” [Lord Watson: I can-
not understand how the result
as to the Liquor Acts of 1883—4
[Gov-Gen. Dominion v. the Four
Provinces, ante, p. 144] was ar-
rived at, unless on the ground that
they did not come within “ Regu-
lation of Trade and Commerce.”]
Trade and commerce cannot be
taken literally; see Parson’s case
[(mte, p. 263, line 41 et seq]
[Lord Watson: They held it was
properly within sub-sec. 13.] [Lord
Herschell: It was very like re-
gulating] All that Ontario claims
is that, under sec. 92, the province
can delegate to municipal institu-
tions the regulation—not neces-
sarily the prohibition—of the liquor
tratﬁc [see Bank of Toronto 1'.
Lambe, ante, pp. 113, 118, line 5;
in P. C. July 9, 1887, 12 App.
Gas. 575; 56 L. J. P. C. 87; 57
L. T. 377] where this Board said,
“ It has been earnestly contended
that the taxation of banks would
unduly cut down the powers of the
parliament in relation to matters
falling within class 2, .namely, the
regulation of trade and commerce ;
and within class 15, namely, bank-
ing, and the incorporation of banks.
Their Lordships think that this
contention gives far too wide an
extent to the classes in question.
They cannot see how the power of
making banks contribute to the
public objects of the provinces
where they carry on business can
interfere at all with the power of
B.N.A. ACT, s. 92 (9).-LIQUOR PROHIBITION. 1051
making laws on the subject of
banking, or with the power of in-
corporating banks. The words
‘ regulation of trade and commerce’
are indeed very wide, and in
Severn’s case it was the view of
the Supreme Court that they oper-
ated to invalidate the license duty
which was there in question. But
since that case was decided the
question has been more completely
sifted before the Committee in
Parson’s case, '7 App. Cas. 96, and
it was found absolutely necessary
that the literal meaning of the
words should be restricted, in order
to aﬁord scope for powers which
are given exclusively to the pro-
vincial legislatures. It was there
thrown out that the power of regu-
lation given to the Parliament
meant some general or inter-pro-
vincial regulations. No further
attempt to deﬁne the subject need
now be made, because their Lord-
ships are clear that if they were to
hold that this power of regulation
prohibited any provincial taxation
on the persons or things regulated,
so far from restricting the expres-
sions, as was found necessary in
Parson’s case, they would be strain-
ing them to their widest conceivable
extent.” These cases go to show
that so far as this Board has dealt
with the subject, “Regulation of
Trade ” means general powers of
regulation over the whole Do-
minion,and not such speciﬁc matters
as might be involved in the Act
now in question. There might
be what was in fact a regulation
so extreme as really to interfere
with trade and commerce. Then
it would be beyond the line.
Haldane, Q.,C., followed: Your
Lordships in construing a Con-
federation Act have refused to
draw an abstract line, but there
are some landmarks which have
been settled by the authorities—
(1) The conferring the “Regu-
lation of Trade and Commerce”
upon the Dominion Parliament
does not include the whole of
the regulation of the liquor traﬁic.
The Gov-Gen. of the Dominion v.
The Four Provinces [ante, p. 144]
and Hodge v. The Queen [ante, pp.
135, 136], which make it clear that
certain things—at all events, in
connection with the liquor traffic--
are reserved to the provincial Par-
liaments; for instance, Sunday clos~
ing, regulation of the time of open-
ing ; and stoppage of sale altogether
on election days. In Att.-Cren. of
Ontario '0: Att.-Gen. of the Do—
minion [(tnte, p. 302] it was found
that there were a. number of provi-
sions passed by the province which
were appropriate to a general
Bankruptcy Statute; and it was
said on behalf of the Dominion
that these provisions ought not to
be passed by one province, but this
Board said: “ It is true these are
appropriate provisions for a general
Bankruptcy Act, but they are also
appropriate provisions with regard
to civil rights, and, in the absence
of special Dominion legislation,
they are proper to be included in
dealing with property and civil
rights.” So it may be here that there
are provisions which 011 general
application would be applicable to
a general prohibition law. [Lord
Watson mentioned Tennant 1'.
The Union Bank of Canada (ante,
p. 295) as a case in which the Do-
minion had also legislated, and the
validity of the Dominion Act was
sustained] In that state of the
law it is well to see exactly what
has been decided with regard to
the liquor trade, and we ﬁnd that
not only has the “ regulation ” of
it been decided to be in some as—
pects and for some purposes within
the provincial competence, but even
qualiﬁed prohibition has been de-
cided to be int'ra wires of the pro-
vince. [Lord Herschel]: Say that
it was thought that for the good of
Canada Ontario ought to be sober,
that would be legislation which
could be a good deal questioned.
But it is putting it too narrowly to
say the Dominion law must extend
to every province] [See discus.
sion, ante, p. .148, on Acts of
1052 B.N.A. ACT, s. 92 (9).—LIQUOB PROHIBITION.
18834.] Strong, J ., in this case,
said: To neither of the legislatures
is the subject of prohibitory liquor
laws in terms assigned. The ques-
tion is, have they concurrent power?
[See ante, p. 165.]
Newcome, Q.C., for the Do-
minion: The subject of the refer-
ence must be regarded as “ prohi-
bition,” but this Board in Russell
1). The Queen excluded the subject
of prohibition, as dealt with by
the Canada Temperance Act, from
provincial competency. [Lord
Herschell: This Board expressed
no opinion as to its coming within
the two. It founded its judgment
entirely upon the earlier part of the
section—its coming within the
general power to legislate for all
Canada. Now the provision at the
end of sec. 91 is to the effect that
the power of the provincial legis-
lature‘ to legislate on matters of a
merely local character shall be ex-
cluded and shall not be taken to
extend, where the limits of the
legislation be local only, to matters
coming within the enumerated pro-
visions of sec. 91.- This Board did
not decide that the prohibition of
liquor came within any of those
enumerated sections. It decided it
upon the ground that it came with-
in the ﬁrst provision. Now if you
read the words at the end of sec.
91, they imply that so far as their
limit is merely local and the effects
are merely local, the provincial
legislature may legislate on matters
with which nevertheless the Do—
minion Parliament may have power
to legislate generally as being a
matter for the peace or good
government of Canada. The very
express words at the end of sec. 91
appear to me to imply that there
may be cases in which you may
legislate locally by provincial legis-
lative authority, and nevertheless
the Parliament of Canada may legis-
late generally. Of course if they
had decided it on the ground that
it came within the regulation of
trade and commerce, one of the
enumerated things, then no doubt
that would have been a strong
point, but I am only speaking of
the scope of Russell 1). The Queen.
That case does not seem to go fur-
ther than that. That is why it does
not appear to me that the ground
upon which the decision in Russell
1). The Queen is based excludes
the provincial power from dealing
with the matter locally] The main
part of sec. 99 of the Canada T em-
perance Act is generally prohibitive,
and really prohibits the sale in those
localities into which it is brought
into force, with certain exceptions,
z'.e., in quantities of less than
10 galls. [reads the section, see ante,
p. 130.] [Lord Herschell: Take
sanitation for example; supposing
that the Dominion Parliament had,
with a view to the health of the
whole Dominion, passed certain re-
gulations, and supposing in a parti-
cular province a contagious disease
was raging which rendered it neces-
sary for the safety of all those with-
in the province that much more
stringent regulations as to the in-
habitants of the houses should come
into force. Why should not that
be considered a merely local matter P
If it is so, and you limit your regu-
lations to the locality, why is that
inconsistent with the legislation
which is on the same lines as that
which is in force in the Dominion
at large] Where Dominion legis-
lation has intended to occupy the
ﬁeld and cover the whole ground
with respect to a certain sub-
ject, it would be improper to
allow the provinces to interfere
also in the matter. [Lord _Her-
schell: One cannot help having
certain doubts whether the Parlia-
ment of Canada could legislate as
regards, say, sanitary arrangements
of the houses of a particular town
in a province under this general
power for the “peace, order, and
good government of Canada”—
which must mean Canada at large.
It might be a temporary measure
required to meet a local exigency
at a particular time and in a parti-
cular town in a province. And if
B.N.A. ACT, s. 92 (9).--LIQUOR PROHIBITION. 1053
for such the Dominion Parliament
cannot legislate, it is very difficult
to suppose that the provincial Par-
liament cannot] [Mn Newcome
read what was said in Russell 1’.
The Queen as to sub-sec. 16,
sec. 92; see ante, p. 134,1ine'7 (b),
and also read the quotations from
Allen, C.J Whatever ‘ is con-
ferred by the words in sub-sec. 16,
is a general grant which would
enable the provinces to deal with
matters which are merely local and
private. The word “ merely ” ac-
centuating the limited character of
the legislation. In the case of
L’Union St. Jacques de Montreal
'0. Belisle, a question was raised as
to legislation with regard to merely
local and private matters [reads
line 22 (a), ante, p. 330]. That is
an illustration of what would be a
private or local matter.
As to municipal institutions. the
exclusive power of the provincial
legislatures was not intended to go
further than to constitute or estab-
lish them ; and any authority which
they may validly confer upon
municipal institutions must be de-
rived through, or have regard to,
the other subjects enumerated in
sec. 92, which do not include the
power to prohibit. [See King, J.,
ante, p. 191, last line (a).] Then
we say that the subject of prohibi-
tion comes within the scope of the
Dominion authority as legislating
for the peace, order, and good go-
vernment of Canada, having regard
to the criminal law [reads Russell
'0. The Queen, ante, p. 133, line 42
(a).] See also Tennant 'v. The
Union Bank [ante, p. 301, line
32 (a)]. [Lord Watson: Do you
maintain that the terms of sub-
sec. 2, sec. 91, give to the Domi-
nion legislative power to prohibit
or abolish a particular trade P] Yes;
because it refers to all subjects of
trade and commerce. In dealing
with a general subject, “ Regulation
of Trade and Commerce” involves
abolition. [Lord Watson: If it
had been “Trade and Commerce,”
those words might imply abolition
as well as regulation, but where
the power given is expressly con-
ﬁned to “ regulation ” of the liquor
trade, could they abolish it? [The
learned counsel referred to the re-
marks of Ritchie, C.J., in Reg. v.
Justices of Kings, ante, p. 59, line
20 (a), as to “ Regulation of Trade
and Commerce” : to the same judge
in the City of Fredericton’s case,
and to Citizens’ Insurance Co. '0.
Parsons, ante, p. 263, line 41 (
Now, leaving the subject of
Trade and Commerce, we say, there
being Dominion legislation, the
ﬁeld is not open to the provinces.
Since the Union, part of the
Dominion revenue is derived from
the customs and excise duty on
alcoholic liquors. The Dominion
assumed the public debt and ex-
penses of the public services,
beside undertaking to pay large
subsidies to the provinces. If the
provinces have the right to. pro-
hibit the liquor traﬁic, the Domi-
nion as to customs and excise would
be affected. And the provinces
could not in effect repeal the cus-
toms laws by prohibiting the sale
of articles on which custom dues
were levied. [Lord Watson: The
provinces had no power to legislate
on “ bankruptcy,” yet it was allowed
to the provinces so to legislate as to
aﬁect preferences in bankruptcy
while the ﬁeld was clean] Should
an insolvency law be necessary for
Ontario, for instance, the Dominion
should present such a law. For
the Dominion might well legislate
on a particular subject for a par-
ticular part of the Dominion. How-
ever, this question might be re-
garded if the Dominion had not
legislated. The ﬁeld is occupied,
and there is no room for provincial
enactment on the subject. The
Canada Temperance Act had been
passed to obtain uniformity of the
law on the subject, and it would
be inconsistent to allow the pro-
vinces to create diverse legislation
on the same subject. If the pro-
vinces can supplement this system
or can enact prohibition, then you
1.054 B.N.A. ACT, s. 92 (9).--LIQUOB PROHIBITION.
have them defeating that which
was the declared object of Parlia-
ment.
[Lord Herschell: If the pro-
vincial legislatures had this power
down to the passing of the Canada
Temperance Act, You have to show
that that power is gone. Can it be
gone by anything but a law of the
Dominion, which would in another
enactment be inconsistent with it.
If the two could operate side by
side without any conflict of the one
with the other, how can their legis-
lative power have been taken away
by the Dominion passing the Canada
Temperance Act?
The Hon. Edward Blake, Q.C.,
for the Distillers’ and Brewers’ As-
sociation: The question is not
speculative, as the plebiscite car-
riedout under the Ontario Act of
1893 has resulted in a large ma_
jority in favour of immediate pro-
hibition. A similar result has
been arrived at in Manitoba. One
might suggest an Act in terms of
the questions, and then the same
ditﬁculty would arise. [Lord
Watson: The ﬁrst question in-
volves a substantial issue, is abso-
- lute prohibition within the com—
petence of the provinces? The
next raises the question, does the
legislation of the Canadian Par-
liament oust the jurisdiction of the
provincial legislature in those parts
of a province where the Canada
Temperance Act has not been
adopted and is not in force? The
next two questions are quite clear.
The ﬁfth is, if it has not power
to enact a total prohibition, has
the provincial legislature jurisdic-
tion to regulate retail sales so as to
prohibit liquor being sold by re-
tail in quantities less than those
speciﬁed in the statutes in force at
the time of confederation? The
sixth question, I understand to be,
if they are possessed of a limited
jurisdiction such as is indicated in
question ﬁve, have the provinces
- power, within those districts where
‘the Canada Temperance Act is
not in force, to enact a law which
will practically impose the provi-
sions of the Canada Temperance
Act upon that part of the province,
observing the limits of the Canada
Temperance Act, but merely apply-
ing that Act without its being
adopted in the manner speciﬁed
in the Act itself? Then comes the
seventh and most important ques-
tion relating to the 18th section,
which gives rise to this controversy.
One point which must be considered
is, whether the legislation on
these matters—the drink trafﬁc
prohibitions—enacted by the Do-
minion of Canada are in reality
and substance enactments for the
purpose of “Regulating Trade
and Commerce,” or are they enact-
ments passed for the “ welfare of
the inhabitants ” and with a view
to suppressing drunken habits,
under the ﬁrst general part of
sec. 91 which precedes the special
sub-sections. The distinction is
important, whether it is legislation _
under the general part of sec. 91,
or under sub-sec. 2, sec. 91, as
viewed in the light of the concluding
exception of sec. 91]. The legisla-
ture may treat a trade by prohibition,
because on social or moral grounds
it is bad for public morals, order,
or safety, which are all mentioned
in Russell 11. The Queen [ante,
p. 133, line 42 (a), full reference
above], or, secondly, because of
some ﬁscal, economic, or political
--including treaty—reasons. We
say that, both under the general
and under the enumerated powers
of the Dominion, the jurisdiction
to prohibit on any of these grounds
rests solely with the Dominion.
The second mode of treating a
trade may be by ordering it—as a
trade intended to exist—on any of
those grounds which have been
mentioned. Then there is a dis-
tribution of power. There may be,
to quote the language used in
Citizens’ Insurance Co. 1). Par-
sons [ante, p. 263, line 50 (6)],
“ minute rules for regulating par
ticular trades ”; or, as said in
Hodge 'v. The Queen [ante, p. 141,
B.N.A. ACT, S. 92 (9).-LIQUOR PROHIBITION. 1055
line 24 (5)], a police power varying
according to the condition of the
locality; and although it is very
diﬁ’icult in each case to draw the
line (when it comes to be drawn)
under Parsons’ case [ante, p. 258],
Hodge’s case [ante, p. 135], and
the Liquor License Acts, 1883-4
[ante, p. 144], I submit that the
power has been determined to be
exclusively provincial. In the case
in which this Board shall adjudicate
that it is a minute regulation affect-
ing a particular trade, there Par-
sons’ case says that it is local. In
the case in which it shall be decided
that it is within “' the police power,”
then in Hodge’s case your Lord-
ships have held that it is exclusively
local. Then, drawing that line
which is to be drawn in principle
in every case, and cutting off what
is exclusively provincial : what falls
within these two descriptions;
there are yet regulations which
march wider; which cut deeper;
which are of more general applica-
tion ; which go beyond minute regu-
lations aﬁccting a particular trade ;
which go beyond simple “ police mat-
ters ” ;——-and as to these, the Domi-
nion under both its powers, the
general and the special, has the sole
regulation. Thus when you draw the
line—which is not easy—and ﬁnd
where the provincial power stops,
and where the Dominion power
begins, you must ﬁnd that the latter
goes on to the end, even to the ex-
tent of prohibition, and this under
the regulating as well as under the
general power. Taking ﬁrst the
general power, the words of sec. 91 ,
are: “It shall be lawful” for the
Dominion “to make laws for the
peace, order, and good government
of Canada in relation to all matters
not coming within the classes of
subjects by this Act assigned ex-
clusively to the legislatures of the
provinces.” Now these general
words—leaving out the exception——
are extensive enough to grant all
powers, whether local or private, in
any part of Canada. Nothing so
minute; nothing so local; nothing
so great; nothing cutting so wide
or deep, but it is included within
these words, because they are the
common form of words under which
the general legislative power given
to self-governing colonies has been
granted for a long time; ﬁrst of all
in instructions and commissions to
Governors, and afterwards in Acts
of Parliament. These words are
deliberately chosen as expressing
in their generality the character of
the powers that are given to the
Dominion, and they are cut down
only by the expression “ in relation
to all matters. not coming within
the classes of subjects by this Act
assigned exclusively to the legis-
latures of the provinces.” There
is here, then, no idea of concurrence.
It was not expected that you would
ﬁnd it there, for sec. 95 gives ex-
pressly two particular subjects of
concurrent powers of legislation:
namely, with reference to agriculture
and immigration. Further, you ﬁnd
an express provision as to the degree
of validity which the provincial law
shall have in that case. It shall
have effect in, and, for the province
as long, and as far only, as it is not
repugnant to an Act of the Parlia-
ment of Canada. So that there is
power in each to legislate, and the
power of the province is subordi-
nated to the executed power of the
Dominion. Therefore we must not
expect to ﬁnd in other divisions of
the Act a scheme of concurrent
powers, either express or implied,
and we do not ﬁnd it here. Be-
cause, while there is a general power
given in these ﬁrst words to the
Parliament of Canada, for every‘
thing, that power is limited by cut-
ting out from it all these speciﬁed
powers which are assigned exclu-
sively to the legislatures of the
provinces. Therefore there is a
sharp line of division ; all the things
which are assigned to the provinces
belong to the provinces, all the rest
belong to the Dominion. [Lord
Watson: I quite agree ‘ that there
is no such thing conferred by these
two clauses as concurrent legislation
1056 BJNA. Aer, s. 92 (SDI—LIQUOR PROHIBITION.
upon the province. As I under-
stand the words concurrent legisla-
tion—the legislation to be eﬁective
must be by one or the other. I do not
think they are joined together, but
the result of recent judgments of
this Board have been to establish
that there are some powers of. legis-
lation which may be exercised by
the provincial legislatures, and so
long as not interfered with by the
Dominion Parliament their exer-
cise will be effectual. This Board
has held that these enactments may
be overridden by an Act of the
Dominion Parliament, competently
legislating within its own ﬁeld;
but while that Parliament could
override by an enactment that
comes into collision with the pro-
vincial enactment, the matter might
not be so exclusively within the
jurisdiction of the Dominion Parlia-
ment as to enable that Parliament
-to repeal the provincial law. It
might overpower it, but not repeal
it. Again, the subjects which give
rise to very difficult questions are
those which are assigned to the pro-
vinces under sub-secs. 13 and 16.
[Lord Herschel]: “Police regu-
lation ” is a very vague term. It
was used in Hodge’s case, but it
only means something conducive
to the good order of the Domi-
nion.] And when you come to
draw the line, you would ﬁnd it very
difficult to ﬁnd what is “ Police ” :
and what is not “Police” within
the sense in which that term is
used in Hodge’s case; and there-
fore ﬁnd it diﬂicult to determine
what is merely local: and what is
beyond it. [Lord Davey: In
Webster’s Dictionary “Police” is
said to be a French word, and to
mean regulation and government of
a city or county or union as re-
gards the inhabitants. That does
not carry one very far. Lord
Herschell. Supposing it was not
necessary as to the peace, order,
and good government of Canada,
but it was necessary for local pur-
poses that you should prohibit the
.. sale or the carrying of ﬁrearms, or
anything you please with regard to
them. It is difﬁcult to see why
the provincial Parliament should
not deal with it, if it was a merely
local matter; but it is diﬁicult, on
the other hand, to see why, because
they have dealt with it as a merely
local matter, when it was a local
matter, the Dominion Government,
when some provision with reference
to ﬁrearms became necessary for the
peace, order, and good government
of the whole Dominion, should be
thereby precluded from dealing
with it, or should be unable to deal
with it in that way. I can con-
ceive both dealing with it in that
way. A matter may be a merely
local question at one time, but the
state of the Dominion may make it
something much more than a local
matter at another time] It may
be suggested that there are turbu-
lent spirits in particular portions of
the Dominion, that there is a reck-
less habit of carrying ﬁrearms, that
there have been criminal offences
committed by the wanton use of
them, all these things point to the
conclusion that it is a matter for
Canadian action. [Lord Her—
schell: I do not see, if that is
the case, why the provisions dis-
cussed in Hodge 'v. The Queen
were not Canadian] The diﬁiculty
is in adopting the proposition, that
if your transaction is merely local
in its nature, and if there is the
exclusive power, if the fact that it
is local in Province A gives that
province the exclusive power of
dealing with it, is changed by the
fact that it turns out it exists also
locally in Province B, and that by
this occurrence it ceases to be local
and becomes general. [Lord Her-
schell: This Board said something
very like that in Russell’s case.
They indicated there that though
a thing might be merely local
viewed in relation to one particular
province, nevertheless it might be
necessary to have some general
legislation for the whole of Canada
for its peace, order, and good
government] May it not be
B.N.A. ACT, S. 92 (ss.-LIQUOR PROHIBITION. 1057
said to be general where there is
said to be a sort of danger of
contagion or disturbance spreading
over the whole Dominion? But
if the matter be merely local
and private, and the condition
which requires legislation exists in
one province only, it is contended
that the Dominion would not have
power to legislate. [Lord Her-
schell: Sanitary arrangements
prima‘ facie would be a matter
merely local, for which the pro-
vinces would have power to legis-
late, and yet there might be a
condition of things which rendered
some general sanitary legislation
necessary for the safety of the
whole Dominion. Lord Watson:
In one province there may exist
an evil peculiar to that province,
wholly local, and apparently sec. 92
gives the local legislature the right
to deal with'iit; then it may attain
such dimensions as to threaten
danger to the whole Dominion, and
in that case I should be sorry to
doubt that there is power given to
the Dominion Parliament to inter-
vene. There may be an evil of the
same nature which is local in each
and every one of the provinces, but
it is not so clear that the Domi-
nion would be justiﬁed in that
case in applying a uniform remedy
to the whole. Lord Herschell:
As to the prohibition of carrying
ﬁrearms. I do not think it has
been suggested that it could not be
dealt with by a general law if
thought necessary for the safety of
the Dominion; but do you deny
if not so thought that the province
might deal with it by a local law
on account of the local conditions
that did not exist elsewhere?] The
determination of the Dominion
Parliament as to whether legisla-
tion is beneﬁcial or otherwise on a
particular topic is not conclusive.
If the thing is within their power,
and they decide, as a matter of
policy, that they ought not to legis-
late, that does not diiferentiate the
cases. They may prefer that
Canada should be free rather than
S 2340.
sober. [Lord Herschell: Does
not sec. 91 point to this, that if it
can be brought within any of the
enumerated clauses, and it is legis-
lation conﬁned to the locality—it is
primz’i facie within the provincial
powers ? At the end of the clause
a distinction is drawn between
those enumerated clauses and the
general words at the beginning]
WVhere there is a distinct local
aspect, in which the local legisla-
ture deals with the subject, I agree
the local legislature has the juris-
diction. The difﬁculty I feel is
that where the aspect is the same
there is a double jurisdiction.
[Lord Herschell: We cannot in
this case lay down any proposition
in such terms as to cover all cases
and settle the conﬁnes of secs. 91
and 92.] The express object of
the last paragraph of sec. 91 is to
deal with the effect of enumeration,
and not to deal impliedly or indi-
rectly with the effect of that which
is outside of enumeration, and
within the general powers. The
very purpose for which enumera-
tion took place was to avoid doubt
and conﬂict on certain subjects
as to whether they fell within the
one or the other, and that purpose
would not be fully accomplished
without an express provision taking
the one set of speciﬁed provisions
out of the operation of the other.
[Lord Herschell: Take the case of
a postal service strictly conﬁned
within the limits of the province
from house to house. That would
be a merely local matter if anything
was; but, being a postal service, it
is not to be deemed to be merely
conﬁned to that. The object of
the paragraph at the end of sec. 91
was to exclude from sub-sec. 16 of
sec. 92 certain things that other-
wise would distinctly have been
Within it.] My argument does not
go so far that Canada could, by
legislating for all or more than one
province, deal with strictly provin-
cial topics, because that would be
absolutely destructive of the pro-
vincial powers. The principle is
3x
1058 B.N.A. ACT, S. 92 (Sly—LIQUOR PROHIBITION.
that there are two aspects and two
purposes of legislation. Hodge v.
The Queen [ante, p. 141, line 32].
For example, take the cases of
licenses for revenue. The express
power of sub-sec. 9 is for raising
a revenue, and it has been de-
cided that limits the power granted
in respect of licenses in that
aspect—that under sub-sec. 9 it
must be for the purpose of raising
a revenue. But. that leaves that
same subject-matter to be dealt
with under police power: and
leaves it to be dealt with under
a still different aspect by the Domi-
nion, either under the general or
under the enumerated powers.
How widely to be dealt with by
the Dominion is one of the points
to be disposed of. But the same
subject cannot be dealt with by
both under the same aspect. Under
sec. 95 a concurrent power is given,
but nowhere else in the Act.
[Lord Herschell: At present the
Dominion Parliament has power
to make laws for the purpose of
the “ order and good government-
of Canada,” in relation to all
matters not within the classes of
subjects. Now if a matter can
only be found in sec. 92 under
sub-sec. 16, and if you can show that
there is a Dominion purpose to be
served by dealing with something
existing throughout the Dominion,
then it comes within the general
Dominion power and could not
be within the class of subjects
prescribed, because it would not be
merely of a local nature, but yet it
might deal with the same subject
matter which the province could
deal with itself as being merely
local.] If you ﬁnd some purpose
or aspect, to use the phrase which
has been used [Hodge v. The Queen,
ante, p. 141, line 32 (a)], in which,
from a federal point of view, legis-
lation should take place different
from the purpose or aspect for
which it is suggested the province
should legislate under “ merely local
or private,” there is a right to
legislate, and there is no difficulty
about it. But when the purpose or
aspect in which you are dealing
with a subject is the same, there is
no right in both to legislate; and
if there is such a right, I fail there '
to ﬁnd any ground upon which to
say that the Dominion power shall
predominate. There is a provision
that if it is within the enumerated
powers that it shall predominate;
but there is no provision that if it
is within the general powers it
shall predominate, and therefore
you ﬁnd, and must grapple with the
fact that there is then a conﬂict.
If you grant the premises, that the
subject is within the jurisdiction of
the Dominion, the Dominion arm
is not so shortened but that it is
entitled to look at the condition
and circumstances of the people
throughout the whole or in any
part of the country, and if varying
circumstances exist with reference
to the evil requiring varying legis-
lation in different parts, it is en-
titled and bound to apply the proper
legislation for the remedy of the
general evil. [Lord Herschell:
That is a very difﬁcult question.
If there is anything clear, it is that
this legislation in secs. 91 and 92
was to give the provincial parlia-
ments power to legislate for things
within the province in so far as it
was necessary to keep them to a
provincial parliament. One can-
not shut one’s eyes to that, because
it is exclusively ex-liypothesi of a
merely local character] The Cana-
dian Parliament could provide for
the case of a particular province.
[Lord Herschell: The sale of in-
toxicating liquors was a matter
which had been in every one of these
confederated provinces before the
Union: There was legislation in
each one of the provinces; and if
it was a matter that was intended
to be taken from the provinces and
given to the Dominion, one would
have expected to ﬁnd it in one of
the speciﬁcally enumerated clauses
in sec. 91. It is not like a new
thing which has arisen] Yes, but
the general character of the legis-
B.N.A. ACT, s. 92 (9).--LIQUOR PROHIBITION. 1059
lation which was in each province
was for the regulation of the tratﬁc
or trade in connection with licensed
houses. The generally exclusive
character of the provincial power
must be recognized and upheld by
repudiating the doctrine of double
jurisdiction in the sense I have
indicated. Citizens’ Insurance Co.
1:. Parsons [ant-e, p. 264, line 9 (12),
full reference above] lays down the
principle which has been followed
since, that the scheme of the Act
was a scheme of mutually exclusive,
and not of concurrent or overriding
powers. [Lord Watson: Take the
case of bills of exchange and pro-
missory notes, do you suggest that
in the absence of legislation by the
Dominion Parliament the provin-
cial parliament‘could not give any
special rights to the holder of a bill
of exchange or of a promissory
note as against his debtor ?] I
do. That would come within the
head of sec. 91. “ Notwithstand~
ing anything in the Act contained,”
they are exclusively within the
power of the Parliament of Canada.
It happens with regard to this
that property and civil rights “ is
put into the other part of the Act,
but notwithstanding that by sec. 91
bills of exchange are exclusively
within the power of the Parliament
of Canada. The fundamental law
recognises a possible variety of
pre-existing provincial laws. It
recognises the fact that there were
different laws in the provinces, and
the fundamental charter provides
that until the Parliament of Canada
alter it, the provincial law shall
remain. Then there always was a
law: but by whom could that law
be changed: by whom could it be
repealed: by whom could it be
supplemented P By the Parliament
of Canada, and it alone. This
theory of construction is not
affected by such decisions as Cush-
ing '0. Dupuy [ante, p. 80], and
the later insolvency cases. [Lord
Davey mentioned L’Union St.
Jacques de Montreal c. Belisle as
being a case where it was held the
province could pass a law winding
up a particular company] Yes,
then Russell '0. The Queen [ante,
p. 129] gives us the concrete
case and the principle. There the
validity of the Canada Temperance
Act was established. It was held
that the subject did not fall with-
in any subjects assigned exclu-
sively to the provincial legislatures.
[See ante, p. 131, line 5 from bot-
tom (5), and pp. 132, 133.] [Lord
Herschell : Suppose that in a particu-
lar province there was a provision
that contagious-diseased animals
should not go to a particular market,
would that be extra-provincial be-
yond the power of the province P]
There is a general law on the sub-
ject; but, if there were not, there
might be many of these topics dealt
with within the proper limits of
local regulation. The line in each
case is drawn with reference to the
principle laid down in Hodge v.
The Queen, and, when once drawn,
you ﬁnd a purpose and aspect local
which gives urisdiction exclusively
to the province, and beyond that
purpose and aspect the subject is
within the Dominion jurisdiction
only. The aspect and purpose with
which the local legislature was ad-
judged to have a power in Hodge
v. The Queen was in reference to
the different local conditions aris-
ing in small communities, such as
cities, towns, and villages, for the
preservation of local order in minor
matters, and, although it may be
difficult to say that preservation
of local order is a minor and
minute regulation, and that it is
not engrafted upon the same view
which is directed to prevent
drunkenness, and the preservation
of decency, and which is directed
to a keeping up of morality, yet that
is the distinction upon which this
Board in Russell '0. The Queen and
Hodge 'v. The Queen held that pro-
hibition was within the Federal
regulation and police regulations
within the local power. Now the
Canada Temperance Act occupies
the ﬁeld, and it is impossible for
3x2
1060 B.N.A. ACT, s. 92 (9).-LIQUOR PROHIBITION.
the provincial legislature—it having
been competently legislated upon by
the Dominion Parliament—to legis-
late upon it again. [Lord Herschell :
But suppose the Dominion Parlia_
ment has come to the conclusion
that it is for the “ good order and
well-being ” of the whole of Canada
that the Temperance Act should be,
at least, promoted to a certain ex-
tent. Is it necessarily inconsistent
with that that a provincial legisla-
ture might supplement that legisla-
tion by other legislation because it
was considered that in some parti-
cular province there was more
urgent need ?] What this Board
has decided (by Russell 1). The
Queen) is, that the law which is
passed is a general law, notwith-
standing its adoptive nature; that
the opportunity of uniformity it
gives by making a provision under
which in various local communities
all through Canada it might be put
in force is a sufficient generality
and uniformity if generality and
uniformity are required in order
to the exercise of Canadian legisla-
tive power. The Canadian Tem-
perance Act is general and uni-
form, although it merely provides
a machinery by which diﬁerent
localities within the Dominion
may at their option and election
put the provisions into force.
It is adequately general and
uniform, though an facie it con-
templates that it will not be uni-
versally applied. Again, it is
adequately general and uniform
although it provides that unless the
test was successfully applied of
a local demand supported by a
majority at an election there ought
not to be this prohibition which
on these conditions, and on these
alone, it was intended should be
applied. Russeli’s case does not
decide that the power of Parliament
is limited. That point is expressly
reserved: but what is decided is
that the power of Parliament to be
competently ordained must be cap-
able of operation generally all over
the Dominion : yet that ‘this law,
whose practical and contemplated
operation was not general nor uni-
form in application and in opera-
tion, was a competent exercise of
that power. [Lord Herschell: Does
the fact that the Parliament of
Canada has said that wherever
people want to prohibit by a certain
majority there shall be prohibition;
render, in every place where they
do not adopt the’, Act, the local
legislature powerless to make
regulations of the liquor traffic
short of prohibition? Lord Wat-
son: The question then arises,
Is supplemental legislation a prac-
tical repeal of the option given by
the general law ?] The Act is
a decision of the Parliament of
Canada to take up a question and
legislate upon it. [Lord Herschell :
Has not Hodge 'v. The Queen
decided they have not done that,
because Hodge ,v. The Queen has
said that in districts where the Act
has never been adopted, and where
there is, therefore, not prohibition,
it is still competent for the provin-
cial legislature to enact regulations
as to time and places within which
drink may be supplied? That in
fact, where the Act has not been
adopted, has it not left open to
the local legislature everything
short of prohibition ?] That may
be so within certain limits. But
I contend that the Parliament of
Canada has done this as eﬁectuallv
as if it had said: “There shall
be no other interference and no
other condition imposed by any
other body with reference to this
matter.” One reason is that legis-
lation by the Parliament of Canada
excludes all others, and, secondly,
because it has declared that this
was a general matter, and no longer
merely local or private. In fact
the Parliament of Canada has ex-
haustively dealt with the whole
topic.
If the aspect and purport of
the legislature is to diminish drink-
ing and maintain the respect‘
ability of a licensed house, that is
one thing. That is to do with
B.N.A. ACT, s. 92 (9) .-LIQUOR PROHIBITION. 1061
' manufacture.
things which may incidentally
affect the consumption of liquor.
But that which is effectually and
substantially and largely restrictive
and practically prevents consump-
tion does prevent manufacture and
importation. It is impossible to
say manufacture is merely local or
private. Sec. 121 makes the whole
country one for commercial pur-
poses. If you stop the sale of an
article, you stop consumption and
It cannot be de-
clared that one province is so ex-
clusively interested in the prohibi-
tion of an article, which it has been
in the habit of importing from
another province, that it becomes
a subject merely local. It may
be a question in the future how
far, even with Hodge '0. The
Queen in their favour, the local
authorities can go in the way
of restrictions. [Lord Herschell:
I cannot draw the line between the
restrictions in Hodge v. The Queen
and the restrictions in the Ontario
Act. You say it virtually prohibits,
but it merely comes to this, that it
creates new obstacles in the way of
obtaining drink.] This particular
trade or commerce has always been
highly taxed, and is a large source
of revenue to the country. It is
regulated in the ﬁscal sensc; and a
very substantial portion of the
public revenue in the provinces
before confederated, and in the
Dominion since, was and is derived
from this source. Canada was
given a power to raise money by
any mode or system of taxation,
and she undertook to pay the
interest on the public debt of the
provinces, and also to pay yearly
a subsidy to the provinces, and this
she had to do out of these means
of raising revenue. Can it be
said then to be a merely local or
private matter within the province
to prohibit the sale or the manufac-
ture or the importation of a sub-
ject which is one of the principal
sources of revenue? That view,
apart from'anything else, excludes
this particular subject from the
general phrase a matter of “merely
local or private ” importance. Sup-
pose this was done in each province
and to other sources of revenue.
The power of the Parliament of
Canada to procure its revenue
might be fatally crippled. The
circumstances of the country are
such that no man can foresee the
time at which revenue can be
raised otherwise than indirectly,
that is, by duties of customs and
excise. It is of the most serious
import to the whole of the ﬁscal
system of Canada. If there be a
defeasible power in the provincial
legislature of dealing with the
matter locally, that power has been
defeated, because the Dominion has
acted. It has decided that the
proper way is to provide for pro-
hibition, and for a repeal of it, and
for a re-enactment of it, at intervals.
These are the methods the legisla-
ture considered competent to deal
with the general evil. It has not
deemed it to be the best way that
greater areas like a whole province
should by one act of the legislature,
or by a plebiscite, be subjected‘ to
total prohibition. It has obviously
decided the political question of
which it was sole and sovereign
judge that it would not do to let
so large an area dispose in every
part of that area of this question.
Probably it thought that there would
be an enormous majority adverse in
local areas, and that the results by
such an Act would work for bad
instead of good. Competent au-
thorities must be taken to have
decided that it will not help but
that it will hurt to go further than
this Dominion Act. As to previous
legislation, Dobie 'v. Board of Pres-
byterian Church [ante, p. 272]
decided that the local legislature
had no power either separately or by
concurrent action to deal with the‘
affairs of the corporation, and that
the Parliament of Canada, under
the general powers to make laws
for the peace, order, and good
government, was competent in an
appropriate case to deal with a
1062 RNA ACT, s. 92' (9).—LIQUOR PROHIBITION.
subject which does not affect the
whole of Canada.
As to “Regulation of Trade and
Commerce.” It is conceded if this
subject is embraced within this
enumeration it is withdrawn from
“ merely local or private ” by the
express terms at the close of sec. 91.
Now the extent of the power of
regulation was not settled in Citi-
zens’ Insurance Co. '2). Parsons
(ante, p. 264 (b) What is
there stated is that these words do
not embrace any minute rule for
the regulation of a particular trade
or the regulation of contracts in a
particular business or trade in a
single province. But it was ex-
pressly observed that no attempt is
made to deﬁne the limits of the
authority of Canada beyond the
extent to which, of course, that
exception which is expressly made
goes [reads ante, p. 263, 3rd pan;
reference also made to Sedgewick,
J., ante, p. 181, line 32 (b), for
the way in which the words
“ Trade and Commerce ” are used
in contemporaneous Acts] [Lord
Herschell: One cannot doubt that
great power of regulation of trade
must be included in “ Trade and
Commerce,” but it is another ques-
tion as to whether the local legisla-
ture cannot impose any restriction
upon the dealing in any particular
goods without infringing that power
of the Dominion Parliament.
Lord Watson: Remember, in
framing that section, they had not
smaller and purely local things in
view. Take, for instance, a dairy
in a province, and milk produced
at that dairy ; unless it is intended
for the market, that does not come
within the rule as to trade. I don’t
see why the province should not
pass a law appointing an inspector
to look after that milk before it
is consumed by the inhabitants.
Lord Halsbury: Suppose the
washing of butter in a particular
stream made it unﬁt for human
food, surely there is a provincial
right to prohibit its sale.] The
Dominion Government is not to
be deprived of its authority to
legislate in larger matters because
it is extremely hard to draw the
line between local and those larger
matters. Every enactment which
says you shall not carry on your
trade in a particular way and under
particular conditions and restric-
tions regulates the trade. [Reads
from Citizens’ Insurance Co. *0.
Parsons, the 2nd par., ante, p. 264,
as to “ Regulation of Trade,” Now what are the points these
words, it is suggested, would in-
clude? They would include poli_
tical arrangements with regard to
trade requiring the sanction of Par-
liament, but then that is expressly
provided. for by sec. 132, which
gives to the Parliament and Go-
vernment of Canada all the powers
necessary for performing the obli-
gations of Canada, or any province
or part towards foreign countries.
No political arrangement can be
made, except through the medium
of the supreme authority. The
local authority may be, and has
been of late years, recognised in
the making of these arrangements,
but for all that it is always a treaty
made by the supreme government,
which alone is a political arrange-
ment. [Lord Herschell: The
Board say distinctly they do not
include every particular dealing
with trade] All that Citizens’ In-
surance Co. 2). Parsons decided,
was that sub-sec. 2 sec. 91 did not
comprehend a particular trade in a
particular province. Then that
case and Hodge’s case do decide,
ﬁrst, that some things are too
minute, and secondly, that some
things are too local to come within
the phrase “ regulation of trade.”
The crucial part of the judgment
in Hodge *0. The Queen is that
the power of the provinces is
to make restrictions in the nature
of police and municipal regulations
of a~ merely local character for the
good government of taverns licensed
for the sale of liquor and so forth.
[See ante, p. 141, 2nd par. There it was not a general Act
nun. ACT, S. 92 (9).-LIQUOR PROHIBITION. 1068
dealing with the whole province,
but an Act remitting to the muni-
cipality certain powers to be exer-
cised locally. It is an entirely
diiferent proposition to say that
that involves necessarily or pro-
bably the view that they have the
right to give a power of prohibition
locally. Is it not clear that where
an Act more seriously affects those
larger considerations, of importa-
tion, sale, and taxation, it is a
deeper interference with trade and
commerce than this local regulation ?
Then it has been adjudged that to
prohibit upon social and moral, or
grounds of safety, order, and peace,
is within the Dominion Parliament :
and I maintain that that power of
dealing for that purpose is within
the “ Regulation of Trade and
Commerce” just as much as it is
within the general powers. That
there is no reason why you should
not regulate trade and commerce
with these objects which are higher
than ﬁscal: economic: or political
objects. Then on ﬁscal grounds
you may prohibit production and
you may prohibit manufacture, as
is shown in the instance of tobacco
in England, and which exists
with regard to methylated spirits
in Canada. Then there are so-
called economic goods, upon which,
under the powers of taxation, some
imports are pretty well taxed to
death. There is a conceivable pro-
hibition of a particular trade on the
ground of a greater general interest
in fostering something else to which
the existence of the general trade
is injurious. Therefore regulation
of trade and commerce does and
must include prohibition: and that
there is no inference against the
prohibition of a particular trade to
be drawn from the use of the word
regulation. It cannot be altogether
ignored what the Great Federal
Constitution of the United States
has for a long time discussed with
reference to this regulating power,
see Ritchie, C.J., in City of Frede-
ricton c. The Queen [ante, at p.
61, line 27 It would be
strange, indeed, that having the
sole legislative power over trade
and commerce, the Dominion Par-
liament could not prohibit the im~
portation or exportation of any
article of trade or commerce; or,
having the power, could not pro-
hibit the sale and traffic, if they
deemed such prohibition conducive
to the peace, order, and govern-
ment of Canada. There seems no
doubt on the point in the United
States, see Story on the U. S.
Consti., 4 ed., s. 1071.
After Hodge 'v. The Queen [see
infra] came the Liquor Licenses
Acts, 1883—4, case (argument
ante, p. 144), and though we have
no judgment to enlighten us as to
the grounds of decision, yet it seems
plain from the proceedings in that
case that the Dominion could not
generalise in a matter which was
purely local—purely local, as had
been decided by Hodge v. The
Queen. That their attempting to
deal with that subject, to appro-
priate it to themselves, it being a
local subject, by acting for the
whole Dominion and appointing
their own oﬁicers, did not alter the
character of the Act or deprive the
provinces of that power which they
had under “merely local or pri-
vate,” that it remained a local and
private subject, and therefore the
Dominion License Acts were void
while the local license Act was
maintained. There again you ﬁnd
another instance of there being no
concurrent jurisdiction. It was the
same thing in the same aspect, and
therefore the power did not exist
in both. Hodge v. The Queen had
decided the power was in the pro-
vince, and therefore it could not be
grasped by the Dominion by an
enlargement of the area. The
18th section is practically prohibi-
tion to those persons who frequent
public houses; for although by
subtle means the section may be got
round by clubbing together to buy
a dozen bottles, yet for all the pur-
poses with which the Dominion is
concerned it is prohil'ril‘ion.
1064 B.N.A. ACT, 9. 92 (9).—LIQUOR PROHIBITION.
Are-GEN. or
ONTARIO v.
ATT.-GEN. on
THE DOMINION.
Judgment.
Lord Watson.
McLaren, Q.C., in reply : The
provinces have a right to legislate
on any and all of the matters in-
trusted to them so long as they do
not affect subjects specially exempt.
And so long as the Dominion Par-
liament has not occupied the ﬁeld
the provinces can deal with matter
dealt with before confederation.
If it had been intended to exempt
the liquor trafﬁc from provincial
legislation it would have been ex~
pressly included in sec. 91 as com-
in g exclusively under the legislation
of the Dominion. As to custom
and revenue therefrom, the income
from shops and taverns already be-
long to the provinces, and the fact
that this legislation may impair
Dominion revenue is not a reason
for its rejection.
9 May 1896.
The judgment was read by Lord
Watson [there being also present
Lord Halsbury, L.C., Lord Her-
schell, Lord Davey, and Sir Richard
Couch].
Lord Watson: “ Their Lordships
think it expedient to deal, in the
ﬁrst instance, with the seventh
question, because it raises a practi-
cal issue, to which the able argu-
ments of counsel on both sides of
the Bar were chieﬂy directed, and
also because it involves considera-
tions which have a material bearing
upon the answers to be given to the
other six questions submitted in
this appeal. In order to appreciate
the merits of the controversy, it is
necessary to refer to certain laws
for the restriction or suppression
of the liquor traffic, which were
passed by the legislature of the old
province of Canada before the
Union, or have since been enacted
by the Parliament of the Dominion,
and by the legislature of Ontario,
respectively.
“ At the time when the British
‘North America Act of 1867 came
into operation, the statute book of
the old province contained two sets
of enactments applicable to Upper
Canada, which, though differing
in expression, were in substance
very similar.
“ The most recent of these enact-
ments were embodied in the Tem-
perance Act, 1864 (27 85 28 Vict.
c. 18.), which conferred upon the
municipal council of every county,
town, township, or incorporated
village, ‘besides the powers at
present conferred on it by law,’
power at any time to pass a by-law
prohibiting the sale of intoxicating
liquors, and the issue of licenses
therefor, within the limits of the
municipality. Such by-law was
not to take effect until submitted
to and approved by a majority of
the qualiﬁed electors; and provi-
sion was made for its subsequent
repeal, in deference to an adverse
vote of the electors.
“ The previous enactments relat-
ing to the same subject, which were
in force at the time of the Union,
were contained in the Consolidated
Municipal Act, 29 & 30 Vict. c.
51. They empowered the Council
of every township, town, and in-
corporated village, and the Com-
inissioners of Police in cities to
make by-laws for prohibiting the
sale by retail of spirituous, fer-
mented or other manufactured li-
quors, in any inn or other house of
public entertainment ; and for pro-
hibiting totally the sale thereof in
shops and places other than houses
of public entertainment; provided
the by-law, before the ﬁnal passing
thereof, had been duly approved by
the electors of the municipality in
the manner prescribed by the Act.
After the Union, the legislature
of Ontario inserted these enact-
ments in the Tavern and Shop
License Act, 32 Vict. c. 32. They
were purposely omitted from sub-
sequent consolidations of the Muni-
cipal and Liquor License Acts;
and, in the year 1886, when the
Canada Temperance Act was passed
by the Parliament of Canada, there
was no provincial law authorizing
the prohibition of liquor sales in
Ontario, save the Temperance Act,
1864.
B.N.A. ACT, s. 92 (9).-LIQUOR PROHIBITION. 1065
“The Canada Temperance Act
of 1886 (Revised Statutes of Cana-
da, 49 Vict. c. 106.) is applicable to
all the provinces of the Dominion.
Its general scheme is to give to the
electors of every county or city the
option of adopting, or declining to
adopt, the provisions of the second
part of the Act, which make it un-
lawful for any person ‘by himself,
his clerk, servant or agent, to ex-
pose or keep for sale, or directly
or indirectly, on any pretence or
upon any device, to sell or barter,
or in consideration of the pur-
chase of any other property, give
to any other person any intoxi-
cating , liquor.’ It expressly de-
clares that no violation of these en-
actments shall be made lawful by
reason of any licence of any de-
scription whatsoever. Certain re-
laxations are made in the case of '
sales of liquor for sacramental or
medicinal purposes, or for exclusive
use in some art, trade, or manufac-
ture. The prohibition does not
extend to manufacturers, importers
or wholesale traders who sell liquors
in quantities above a speciﬁed limit,
when they have good reason to be-
lieve that the purchasers will forth-
with carry their purchase beyond
the limits of the county or city, or
of any adjoining county or city in
which the provisions of the Act
are in force.
“For the purpose of bringing
the second part of the Act into
operation, an order of the Gover-
nor-General of Canada in Council
is required. The order must be
made on the petition of a county
or city, which cannot be granted
until it has been put to the vote of
the electors of such county or city.
When a majority of the ‘votes polled
are adverse to the petition, it must be
dismissed; and no similar applica-
tion can be made within the period
of three years from the day on
which the poll was taken. “Then
the vote is in favour of the petition,
and is followed by an Order in
Council, one fourth of the qualiﬁed
electors of the county or city may
apply to the Governor-General in
Council for a recall of the order,
which is to be granted, in the event
of a majority of the electors voting
ATT.-GEN. or
ONTARIO v.
ATT.-GEN. or
THE DOMINION.
Judgment.
in favour of the application. Power Lord Watson.
is given to the Governor-General
in Council to issue in the like man-
ner, and after similar procedure, an
order repealing any by-law passed
by any Municipal Council for the
application of the Temperance Act
of 1864.
“ The Dominion Act also contains
an express repeal of the prohibitory
clauses of the provincial Act of
1864, and of the machinery there-
by provided for bringing them into
operation, (1) as to every muni-
cipality within the limits of Ontario
in which, at the passing of the Act
of 1886, there was no municipal
by-law in force, (2) as to every
municipality within these limits in
which a prohibitive by-law then in
force shall be subsequently re-
pealed under the provisions of
either Act, and (3) as to every
municipality, having a municipal
by-law, which is included in the
limits of, or has the same limits
with, any county or city in which
the second part of the Canada-
Temperance Act is brought into
force before the repeal of the by-
law, which by-law, in that event, is
declared to be null and void.
“With the view of restoring to
municipalities within the province,
whose powers were affected by that
repeal, the right to make by-laws
which they had possessed under
the law of the old province, the
legislature of Ontario passed
sec. 18 of 53 Vict. c. 56., to
which the seventh question in this
case relates. The enacting words
of the clause are introduced by a
preamble which recites the previous
course of legislation, and the re-
peal by the Canada Temperance
Act of the Upper Canada Act of
1864 in municipalities where not in
force, and concludes thus,—‘ it is
expedient thatmunicipalities should
have the powers by them formerly
possessed.’ The enacting words of
1066 B.N.A. ACT, s. 92 (9).--LIQUOR PROHIBITION.
ATT.—GEN. 0F
ONTARIO v.
A.TT.-GEN. on
THE DoMINIoN.
Judgment.
Lord Watson.
the clause, with the exception of
one or two changes of expression
which do not affect its substance,
are a mere reproduction of the pro-
visions, not of the Temperance Act
of 1864, but of the kindred pro-
visions of the Municipal Act, 29 &
30 Vict. c. 51., which had been
omitted from the consolidated
statutes of the province. A new
proviso is added, to the effect that,
‘ nothing in this section contained
shall be construed into an exercise
of jurisdiction by the province of
Ontario beyond the revival of
provisions of law which were in
force at the date of the passing of
the British North America Act,
and which the subsequent legisla-
tion of this province purported to
repeal.’ The legislature of Ontario
subsequently passed an Act (54
Vict. c. 46.) for the purpose of ex-
plaining that see. 18 was not
meant to repeal by implication
certain provisions of the Muni-
cipal Act, 29 85 3O Vict. c. 51.,
which limit its application to retail
dealings.
“ The seventh question raises the
issue,—whether, in the circum-
stances which have just been de—
tailed, the provincial legislature had
authority to enact sec. 18? In
order to determine that issue, it
becomes necessary to consider, in
the ﬁrst place, whether the Parlia-
ment of Canada had jurisdiction
to enact the Canada Temperance
Act; and, if so, to consider in the
second place, whether, after that
Act became the law of each pro-
vince of the Dominion, there yet
remained power with the legisla-
ture of Ontario to enact the pro-
visions of sec. 18.
“ The authority of the Dominion
Parliament to make laws for the
suppression of liquor traffic in the
provinces is maintained, in the ﬁrst
place, upon the ground that such
legislation deals with matters affect-
ing ‘the peace, order, and good
government of Canada,’ within
the meaning of the introductory
and general enactments of sec.
91 of the British North America
Act; and, in the second place,
upon the ground that it concerns
‘ the regulation of trade and com-
merce,’ being No. 2 of the enume-
rated classes of subjects which are
placed under the exclusive juris-
diction of the federal Parliament
by that section. These sources of
jurisdiction are in themselves
distinct; and are to be found in
diﬁerent enactments.
“ It was apparently contemplated
by the framers of the Imperial Act
of 1867, that the due exercise of
the enumerated powers conferred
upon the Parliament of Canada
by sec. 91 might, occasionally
and incidentally, involve legislation
upon matters which are prima
facie committed exclusively to the
provincial legislatures by sec. 92.
In order to provide against that
contingency, the concluding part
of sec. 91 enacts that ‘any
matter coming within any of the
classes of subjects enumerated in
this section shall not be deemed to
come within the class of matters of
a local or private nature comprised
in the enumeration of the classes of
subjects by this Act assigned ex-
clusively to the legislatures of the
provinces.’ It was observed by
this Board in Citizens’ Insurance
Company of Canada a. Parsons (7
Ap. Ca. 108), that the paragraph
just quoted ‘applies in its gram-
matical construction only to No.
16 of sec. 92.’ The observation
was not material to the question
arising in that case, and it does not
appear to their Lordships to be
strictly accurate. It appears to
them, that the language of the
exception in sec. 91 was meant
to include, and correctly describes,
all the matters enumerated in the
16 heads of sec. 92, as being, from
a provincial point of view, of a
local or private nature. It also
appears to their Lordships that the
exception was not meant to dero-
gate from the legislative authority
given to provincial legislatures by
these 16 sub-sections, save to the
B.N.A. ACT, s. 92 (9).—LIQUOR PROHIBITION. 10.67
extent of enabling the Parliament
of Canada to deal with matters
local or private, in those cases
where such legislation is necessarily
incidental to the exercise of the
powers conferred upon it by the
enumerative heads of Clause 91.
That view was stated and illus-
trated by Sir Montague Smith in
Citizens Insurance Company of
Canada '0. Parsons ('7 Ap. Ca.
pp. 108, 109), and in Cushing v.
Dupuy (5 Ap. Ca. 415); and it
has been recognised by this Board
in Tennant 1’. Union Bank of
Canada (1894, Ap. Ca. 46) and in
Attorney-General of Ontario 1).
Attorney-General of the Dominion
(1894, Ap. Ca. 200).
“ The general authority given to
the Canadian Parliament, by the
introductory enactments of sec.
91, is, ‘ to make laws for the peace,
order and good government of
Canada, in relation to all matters
not coming within the classes of
subjects by this Act assigned ex-
clusively to the legislatures of the
provinces; ’ and it is declared, but
not so as to restrict the generality
of these words, that the exclusive
authority of the Parliament of Ca-
nada extends to all matters coming
within the classes of subjects which
are enumerated in the clause.
There may, therefore, be matters
not included in the enumeration,
upon which the Canadian Parlia-
ment has power to legislate, because
they concern the peace, order and
good government of the Dominion.
But to those matters which are not
speciﬁed among the enumerated
subjects of legislation, the excep-
tion from sec. 92, which is en~
acted by the concluding] words of
sec. 91, has no application ;
and, in legislating with regard to
such matters, the Dominion Parlia-
ment has no authority to encroach
upon any class of subjects which is
exclusively assigned to provincial
legislatures by sec. 92. These
enactments appear to their Lord-
ships to indicate, that the exercise
I of legislative power by the Parlia-
ment of Canada, in regard to all
matters not enumerated in sec. 91,
ought to be strictly conﬁned to such
matters as are unquestionably of
Canadian interest and importance,
and ought not to trench upon pro-
vincial legislation, with respect to
any of the classes of subjects
enumerated in sec. 92. To attach
any other construction to the
general power which, in supplement
of its enumerated powers, is con-
ferred upon the Parliament of
Canada by sec. 91, would, in their
Lordships’ opinion, not only be
contrary to the intendment of the
Act, but would practically destroy
the autonomy of the provinces. If
it were once conceded that the
Parliament of Canada has authority
to make laws applicable to the
whole Dominion, in relation to
matters which in each province are
substantially of local or private in-
terest, upon the assumption that
these matters also concern the
peace, order and good government
of the Dominion, there is hardly a
subject enumerated in sec. 92
upon which it might not legislate,
to the exclusion of the provincial
legislatures.
“In construing the introductory
enactments of sec. 91, with respect
to matters other than those enu-
merated, which concern the peace,
order and good government of
Canada, it must be kept in view
that see. 94, which empowers the
Parliament of Canada to make
provision for the uniformity of the
laws relative to property and civil
rights in Ontario, Nova Scotia, and
New Brunswick, does not extend
to the province of Quebec; and
also that the Dominion legislation
thereby authorized is expressly de-
clared to be of no effect, unless and
until it has been adopted and en-
acted by the provincial legislature.
These enactments would be idle
and abortive, if it were held that
the Parliament of Canada derives
jurisdiction from the introductory
provisions of sec. 91 to deal with
any matter which is in substance
ATT.-GEN. or
ONTARIO v.
A'r'r.-GEN. or
THE DOMINION.
Judgment.
Lord Watson.
1068 B.N.A. A0135. 92 (9).—-LIQUOR PROHIBITION.
ATT.-GEN. or
Ox'rniuo v.
Arr-GEN. or
THE DOMINION.
Judgment.
Lord Watson.
local or provincial, and does not
truly aﬁect the interest of the
Dominion as a whole. Their Lord-
ships do not doubt that some
matters, in their origin local and
provincial, might attain such di-
mensions as to affect the body politic
of the Dominion, and to justify the
Canadian Parliament in passing
laws for their regulation or abolition,
in the interest of the Dominion.
But great caution must be observed,
in distinguishing between that
which is local and provincial and
therefore within the jurisdiction of
the provincial legislatures, and that
which has ceased to be merely local
or provincial, and has become
matter of national concern, in such
sense as to bring it within the juris-
diction of the Parliament of
Canada. An Act restricting the
right to carry weapons of offence,
or their sale to young persons,
within the province, would be
within the authority of the pro-
vincial legislature. But traﬁic in
arms, or the possession of them
under such circumstances as to
raise a suspicion that they were to
be used for seditious purposes, or
against a foreign state, are matters
which, their Lordships conceive,
might be competently dealt with
by the Parliament of the Dominion.
“The judgment of this Board in
Russell 0. The Queen (7 Ap. Ca.
829) has relieved their Lordships
from the difficult duty of consider-
ing whether the Canada Temper-
ance Act of 1886 relates to the
peace, order and good government
of Canada, in such sense as to
bring its provisions within the com-
petency of the Canadian Parlia-
ment. In that case the controversy
related to the validity of the
Canada Temperance Act of 1878:
and neither the Dominion nor the
provinces were represented in the
argument. It arose between a
private prosecutor and a person who
had been convicted, at his instance,
of violating the provisions of the
Canadian Act, within a district of
New Brunswick in which the pro-
hibitory clauses of the Act had
been adopted. But the provisions
of the Act of 1878 were, in all
material respects, the same with
those which are now embodied in
the Canada Temperance Act of
1886; and the reasons which were
assigned for sustaining the validity
of the earlier, are, in their Lord-
ships’ opinion, equally applicable to
the latter Act. It therefore appears
to them that the decision in Russell
'0. The Queen must be accepted as
an authority to the extent to which
it goes, namely, that the restrictive
provisions of the Act of 1886,
when they have been duly brought
into operation in any provincial
area within the Dominion, must
receive effect as valid enactments,
relating to the peace, order and
good government of Canada.
“ That point being settled by
decision, it becomes necessary to
consider whether the Parliament
of Canada had authority to pass
the Temperance Act of 1886, as
being an Act for the ‘ regulation of
trade and commerce ’ within the
meaning of No. 2 of sec. 91.
If it were so, the Parliament of
Canada would, under the excep-
tion from sec. 92 which has
already been noticed, be at liberty
to exercise its legislative authority,
although, in so doing, it should
interfere with the jurisdiction of
the. provinces. The scope and
effect of No. 2 of sec. 91 were
discussed by this Board at some
length, in Citizens’ Insurance Com-
pany 1;. Parsons (7 Ap. Ca. 96),
where it was decided that, in the
absence of legislation upon the sub-
ject by the Canadian Parliament,
the legislature of Ontario had
authority to impose conditions, as
being matters of civil right, upon
the business of ﬁre insurance,
which was admitted to be a trade,
so long as those conditions only
affected provincial trade. Their
Lordships do not ﬁnd it necessary
to re-open that discussion in the
present case. The object of the
Canada Temperance Act of 1886 _
B.N.A. Aer, S. 92 (9).—LIQUOR PROHIBITION. 1069
is, not to regulate retail transac-
tions between those who trade in
liquor and their customers, but to
abolish all such transactions within
every provincial area in which its
enactments have been adopted by a
majority of the local electors. A
power to regulate, naturally, if not
necessarily, assumes, unless it is
enlarged by the context, the con-
servation of the thing which is to
be made the subject of regulation.
In that view, their Lordships are
unable to regard the prohibitive
enactments of the Canadian statute
of 1886 as regulations of trade and
commerce. They see no reason to
modify the opinion which was re-
cently expressed,on their behalf, by
Lord Davey,in Municipal Corpora-
tion of the City of Toronto '0. Virgo
([1896] A. C. 93, and see past), in
these terms :—‘ T heir Lordships
think there is marked distinction to
be drawn between the prohibition
or prevention of a trade and the
regulation or governance of it, and
indeed a power to regulate and
govern seems to imply the con-
tinued existence of that which is
to be regulated or governed.’
“ The authority of the legislature
of Ontario to enact sec. 18 of 53
Vict. c. 56. was asserted by the
Appellant on various grounds.
The ﬁrst of these, which was very
strongly insisted on, was to the
effect that the power given to each
province by No. 8 of sec. 92, to
create municipal institutions in the
province, necessarily implies the
right to endow these institutions
with all the administrative func-
tions which had been ordinarily
possessed and exercised by them
before the time of the Union.
Their Lordships can ﬁnd nothing
to support that contention in the
language of sec. 92, No. 8, which,
according to its natural meaning,
simply gives provincial legislatures
the right to create a legal body,
for the management of municipal
aﬁ’airs. Until confederation, the
legislature of each province as then
constituted could, if it chose, and
did in some cases, entrust to a
muncipality the execution of powers
which now belong exclusively to
the Parliament of Canada. Since
its date, a provincial legislature
cannot delegate any power which
it does not possess; and the extent
and nature of the functions which
it can commit to a municipal body
of its own creation must depend
upon the legislative authority which
it derives from the provisions of
sec. 92 other than No. 8.
“ Their Lordships are likewise of
opinion that see. 92, No. 9, does
not give provincial legislatures any
right to make laws for the abolition
of the liquor traffic. It assigns to
them ‘shop, saloon, tavern, auc-
tioneer and other licenses, in
order to the raising of a revenue
for provincial, local or municipal
purposes.’ It was held by this
Board, in Hodge v. The Queen (9
Ap. Ca. 117), to include the right
to impose reasonable conditions
upon the licensees, which are in the
nature of regulation; but it cannot,
with any show of reason, be con-
strued as authorizing the abolition
of the sources from which revenue
is to be raised.
“ The only enactments of sec. 92
which appear to their Lordships to
have any relation to the authority
of provincial legislatures to make
laws for the suppression of the
liquor tratﬁc are to be found in
Nos. 13 and 16, which assign to
their exclusive jurisdiction, (1)
‘property and civil rights in the
province,’ and (2) ‘generally all
matters of a merely local or
private nature in the province.’
A law which prohibits retail trans-
actions, and restricts the con-
sumption of liquor within the
ambit of the province, and does
not aﬁect transactions in liquor
between persons in the province
and persons in other provinces or
in foreign countries, concerns
property in the province which
would be the subject matter of the
transactions, if they were not pro-
hibited, and also the civil rights of
ATT.-GEN. or
ONTARIO v.
Arm-GEN. OF
THE DOMINION.
Judgment.
Lord Watson.
1070 B.N.A. ACT, s. 92 (9).—-LIQU()R PROHIBITION.
Arr-Gnu. or
ONTARIO v.
Arr-GEN. OF
THE DOMINION.
Judgment.
Lord Watson.
persons in the province. It is not
impossible that the vice of intem-
perance may prevail in particular
localities within a province, to such
an extent as to constitute its cure
by restricting or prohibiting the
sale of liquor a matter of a merely
local or private nature, and there-
fore falling prima facie within
No. 16. In that state of matters,
it is conceded that the Parliament
of Canada could not imperatively
enact a prohibitory law adapted
and conﬁned to the requirements
of localities within the province,
where prohibition was urgently
needed.
“It is not necessary, for the
purposes of the present appeal, to
determine whether provincial legis-
lation for the suppression of the
liquor traffic, conﬁned to matters
which are provincial or local within
the meaning of Nos. 13 and 16, is
authorized by the one or by the
other of these heads. It cannot, in
their Lordships’ opinion, be logically
held to fall within both of them.
In sec. 92, No. 16 appears to them
to have the same ofﬁce which the
general enactment, with respect to
matters concerning the peace, order,
and good government of Canada,
so far as supplementary of the
enumerated subject-s, fulﬁls in sec.
91. It assigns to the provincial
legislature all matters in a provin-
cial sense local or private, which
have been omitted from the pre-
ceding enumeration, and, although
its terms are wide enough to cover,
they were obviously not meant to
include provincial legislation in re-
lation to the classes of subjects
already enumerated.
“ In the able and elaborate argu-
ment addressed to their Lordships
on behalf of the Respondents, it
was practically conceded that a pro-
vincial legislature must have power
to deal with the restriction of the
liquor traﬁic from a local and pro-
vincial point of view, unless it be
held that the whole subject of re-
striction or abolition is exclusively
committed to the Parliament of
Canada, as being within the re~
gulation of trade and commerce.
In that case, the subject, in so far
at least as it had been regulated by
Canadian legislation, would, by vir-
tue of the concluding enactment
of sec. 91, be excepted from the
matters committed to provincial
legislatures by sec. 92. Upon the
assumption that see. 91 (2) does
not embrace the right to suppress
a trade, Mr. Blake maintained, that,
whilst the restriction of the liquor
traffic may be competently made
matter of legislation, in a provincial
as well as a Canadian aspect, yet
the Parliament of Canada has, by
enacting the Temperance Act of
1886, occupied the whole possible
ﬁeld of legislation in either aspect,
so as completely to exclude legisla-
tion by a province. That appears
to their Lordships to be the real
point of controversy raised by the
question with which they are at
present dealing; and, before dis-
cussing the point, it may be ex—
pedient to consider the relation in
which Dominion and provincial
legislation stand to each other.
“It has been frequently recog-
nised by this Board, and it may
now be regarded as settled law,
that according to the scheme of the
British North America Act, the
enactments of the Parliament of
Canada, in so far as these are
within its competency, must over-
ride provincial legislation. But the
Dominion Parliament has no autho-
rity conferred upon it by the Act
to repeal directly any provincial
statute, whether it does or does not
come within the limits of jurisdic-
tion prescribed by sec. 92. The
repeal of a provincial Act by the
Parliament of Canada can only be
effected by repugnancy between its
provisions and the enactments of
the Dominion; and if the existence
of such repugnancy should become
matter of dispute, the controversy
cannot be settled by the action
either of the Dominion or of the
provincial legislature, but must be
submitted to the judicial tribunals
B.N.A. Aer, S. 92 (synmeoon PROHIBITION.
1071
of the country. In their Lord-
ships’ opinion, the express repeal
of the old provincial Act of 1864
by the Canada Temperance Act of
1886 was not within the authority
of the Parliament of Canada. It
is true that the Upper Canada Act
of 1864 was continued in force
within Ontario, by sec. 129 of
the British North America Act,
‘ until repealed, abolished or altered
by the Parliament of Canada, or
by the provincial legislature,’ ac-
cording to the authority of that
Parliament, ‘ or of that legislature.’
It appears to their Lordships that
neither the Parliament of Canada,
nor the provincial legislatures, have
authority to repeal statutes which
they could not directly enact. Their
Lordships had occasion, in Dobie
v. the Temporalities Board (7 Ap.
Ca. 136), to consider the power of
repeal competent to the legislature
of a province. In that case, the
legislature of Quebec had repealed
a statute continued in force after
the Union by sec. 129, which had
this peculiarity, that its provisions
applied both to Quebec and to
Ontario, and were incapable of
being severed so as to make them
applicable to one of these provinces
only. Their Lordships held (7 Ap.
Ca. 147) that the powers conferred
‘ upon the provincial legislatures
of Ontario and Quebec to repeal
and alter the statutes of the old
parliament of the province of
Canada are made precisely co-
extensive with the powers of
direct legislation with which these
bodies are invested by the other
clauses of the Act of 1867’; and
that it was beyond the authority of
the legislature of Quebec to repeal
statutory enactments which affected
both Quebec and Ontario. The
same principle ought, in the opinion
of their Lordships, - to be applied
to the present case. The old Tem-
perance Act of 1864 was passed
for Upper Canada, or in other
words for the province of Ontario;
and its provisions, being conﬁned
to that province only, could not
have been directly enacted by the
Parliament of Canada. In the
present case, the Parliament of
Canada would have no power to
pass a prohibitory law for the pro-
vince of Ontario; and could there—
fore have no authority to repeal, in
express terms, an Act which is
limited in its operation to that pro-
vince. In like manner, the express
repeal, in the Canada Temperance
Act of 1886, of liquor prohibitions
adopted by a municipality in the
province of Ontario under the
sanction of provincial legislation,
does not appear to their Lordships
to be within the authority of the
Dominion Parliament.
“The question must next be con-
sidered, whether the provincial en-
actments of sec. 18, to any, and if
so to what extent, come into col-
lision with the provisions of the
Canadian Act of 1886 P In so far
as they do, provincial must yield
to Dominion legislation, and must
remain in abeyance unless and
until the Act of 1886 is repealed
by the parliament which passed it.
“The prohibitions of the Do-
minion Act have in some respects
an effect which may extend be-
yond the limits of a province;
and they are all of a very stringent
character. They draw an arbitrary
line, at eight gallons in the case of
beer, and at ten gallons in the case
of other intoxicating liquors, with
the view of discriminating between
wholesale and retail transactions.
Below the limit, sales within a
district which has adopted the Act
are absolutely forbidden, except to
the two nominees of the Lieutenant-
Governor of the province, who are
only allowed to dispose of their
purchases in small quantities, for
medicinal and other speciﬁed pur-
poses. In the case of sales above
the limit, the rule is different. The
manufacturers of pure native wines,
from grapes grown in Canada, have
special favour shown them. Manu-
facturers of other liquors within
the district, as also merchants duly
licensed, who carry on an ex-
A'r'r.-GEN. on
ONTARIO c.
ATTrGEN. or
THE DOMINION.
Judgment.
Lord Watson.
1072 B.N.A. ACT, s. 92 (9) .--LIQUOR PBOHIBITION.
Arm-Gnu. 0F
ONTARIO v.
ATT.-G'EN. OF
THE DOMINION.
Judgment.
Lord Watson.
clusively wholesale business, may
sell for delivery anywhere beyond
the district, unless such delivery is
to be made in an adjoining district
where the Act is in force. If the
adjoining district happened to be
in a different province, it appears
to their Lordships to be doubtful,
whether, even in the absence of
Dominion legislation, a restriction
of that kind could be enacted by a
provincial legislature.
“ On' the other hand, the pro-
hibitions which see. 18 authorizes
municipalities to impose within
their respective limits do not appear
to their Lordships to aﬁect any
transactions in liquor which have
not their beginning and their end
within the province of Ontario.
The ﬁrst branch of its prohibitory
enactments strikes against sales of
liquor by retail in any tavern, or
other house or other place of public
entertainment. The second extends
to sales in shops and places other
than houses of public entertain-
ment; but the context indicates
that it is only meant to apply to
retail transactions; and that inten-
tion is made clear by the terms of
the explanatory Act, 54 Vict. c. 46.,
which ﬁxes the line between
wholesale and retail at one dozen
of liquor in bottles, and ﬁve
gallons if sold in other receptacles.
The importer or manufacturer
can sell any quantity above that
limit; and any retail trader may
do the same, provided that he sells
the liquor in the original packages
in which it was received by
him from the importer or manu-
facturer.
“ It thus appears that, in their
local application within the pro—
vince of Ontario, there would be
considerable diﬁerence between the
two laws; but it is obvious that
their provisions could not be in
force within the same district or
province at one and the same time.
In the opinion of their Lordships,
the question of conﬂict between
their provisions which arises in this
case does not depend upon their
identity or non-identity, but upon
a feature which is common to both.
Neither statute is imperative, their
prohibitions being of no force or
effect until they have been volun-
tarily adopted and applied by the
vote of a majority of the electors
in a district or municipality. In
Russell *0. The Queen (7 Ap. Ca.
841), it was observed by this Board,
with reference to the Canada T em-
perance Act of 1878, ‘ The Act as
soon as it was passed became a law
for the whole Dominion, and the
enactments of the ﬁrst part, relat-
ing to the machinery for bringing
the second part into force, took
eﬁect and might be put in motion
at once and everywhere within it.’
No fault can be found with the
accuracy of that statement. it! ata-
tz's matandz's, it is equally true as a
description of the provisions of
sec. 18. But in neither case can
the statement mean more than this,
that on the passing of the Act, each
district or municipality within the
Dominion or the province, as the
case might he, became vested with
a right to adopt and enforce certain
prohibitions, if it thought ﬁt to do
so. But the prohibitions of these
Acts, which constitute their object
and their essence, cannot with the
least degree of accuracy be said to
be in force anywhere, until they
have been locally adopted.
“ If the prohibitions of the
Canada Temperance Act had been
made imperative throughout the
Dominion, their Lordships might
have been constrained by previous
authority to hold that the jurisdic-
tion of the legislature of Ontario to
pass sec. 18, or any similar law,
had been superseded. In that case,
no provincial prohibitions, such as
are sanctioned by sec. 18, could
have been enforced by a munici-
pality, without coming into con-
ﬂict with the paramount law of
Canada. For the same reason,
provincial prohibitions in force
within a particular district will
necessarily become inoperative,
whenever the prohibitory clauses of
B.N.A. ACT, s. 92 (9).--L1QUOR PROHIBITION.
1073
the Act of 1886 have been adopted
by that district. But their'Lord-
ships can discover no adequate
grounds for holding that there ex-
ists repugnancy between the two
laws in the districts of the province
of Ontario where the prohibitions
of the Canadian Act are not, and
may never be, in force. In a dis-
trict which has, by the votes of
its electors, rejected the second part
of the Canadian Act, the option is
abolished for three years from the
date of the poll; and it hardly
admits of doubt, that there could
be no repugnancy whilst the option
given by the Canadian Act was
suspended. The Parliament of
Canada has not, either expressly
or by implication, ‘enacted, that so
long as any district delays or refuses
to accept the prohibitions which it
has authorized, the provincial par-
liament is to be debarred from ex-
ercising the legislative authority
given it by sec. 92, for the suppres-
sion of the drink traﬁic as a local
evil. Any such legislation would
be unexampled; and it is a grave
question whether it would be law-
ful. Even if the provisions of sec.
18 had been imperative, they would
not have taken away or impaired
the right of any district in Ontario
to adopt, and thereby bring into
force, the prohibitions of the Cana-
dian Act.
“ Their Lordships, for these
reasons, give a general answer to
the seventh question in the affirma-
tive. They are of opinion that
the Ontario legislature had juris-
diction to enact sec. 18, subject to
this necessary qualiﬁcation, that its
provisions are or will become in-
operative in any district of the
province which has already ad-
opted, or may subsequently adopt,
the second part of the Canada
Temperance Act of 1886.
“ Their Lordships will now an-
swer brieﬂy, in their order, the
other questions submitted by the
Governor-General of Canada. So
far as they can ascertain from the
Record, these differ from the ques-
S 2340.
tion which has already been an-
swered, in this respect, that they
relate to matters which may pos-
sibly become litigious in the future,
but have not as yet given rise to
any real and present controversy.
Their Lordships must further ob-
serve that these questions, being in
their nature academic rather than
judicial, are better ﬁtted for the
consideration of the oﬂicers of the
Crown, than of a court of law. The
replies to be given to them will
necessarily ‘depend upon the cir-
cumstances in which they may
arise for decision; and these cir-
cumstances are in this case left to
speculation. It must therefore be
understood that the answers which
follow are not meant to have, and
cannot have, the weight of a
judicial determination, except in
so far as their Lordships may have
occasion to refer to the opinions
which they have already expressed
in discussing the seventh question.
“Answers to Questions I. and
II.—Their Lordships think it
suﬁicient to refer to the opinions
expressed by them in disposing of
the seventh question.
“Answer to Question TIL—In
the absence of conﬂicting legisla-
tion by the Parliament of Canada,
their Lordships are of opinion that
the provincial legislatures would
have jurisdiction to that effect, if
it were shown that the manufacture
was carried on under such circum-
stances and conditions as to make
its prohibition a merely local matter
in the province.
“Answer to Question IV. — Their
Lordships answer this question in
the negative. It appears to them
that the exercise by the provincial
legislature of such jurisdiction, in
the wide and general terms in which
it is expressed, would probably
trench upon the exclusive autho-
rity of the Dominion Parliament.
“Answers to Questions V. and
VI.—Their Lordships consider it
unnecessary to give a categorical
reply to either of these questions.
Their opinion upon the points
3v
ATT.-GEN. or
ONTARIO v.
Arr-Gas on
THE DOMINION.
Judgment.
Lord \Vatson.
1074 B.N.A. ACT, s. 92 (9).-—LIQUOR PROHIBITION.
Arn-Grnv. or
ONTARIO v.
AT'L—G'EN. or
THE DOMINION.
Order in
Council.
which the questions involve has
been sufficiently explained in their
answer to the seventh question.
“Their Lordships will humbly
advise Her Majesty to discharge
the order of the Supreme Court of
Canada, dated the 15 January,
1895, and to substitute therefor
the several answers to the seven
questions submitted by the Gover-
nor-General of Canada, which
have been already indicated.
“There will be no costs of this
appeal.”
The Order in Council giving effect to the above
judgment, after reciting the facts, was inter alia as
follows :—
“ Judgment of the Supreme Court of Canada, dated 15th J anuary 1895,
ought to be discharged; and in lieu thereof there ought to be substi-
tuted the following answers to the said seven questions1 hereinbefore
set forth, that is to say :—
“ 1. In answer to the 1st Question :--That a provincial legislature
has jurisdiction to restrict the sale within the Province of
intoxicating liquors so long as its legislation does not conﬂict
with any legislative provision which may be competently made
by the Parliament of Canada and which may be in force within
the province or any district thereof.
“2. In answer to the 2nd Question :-That in those portions of the
Province as to which the Canada Temperance Act 1866 is not
in operation the provincial legislature has such jurisdiction as
is indicated in the answer to the 1st Question.
“3. In answer to the 3rd Question :-—That in the absence of con-
ﬂicting legislation by the Parliament of Canada, a provincial
legislature has jurisdiction to prohibit the manufacture of
intoxicating liquors within the province if such manufacture
be carried on under such circumstances and conditions as to
make its prohibition a merely local matter in the province.
“ 4. In answer to the 4th Question :—No useful answer can be given
to this question in the absence of a precise statement of the
facts to which it is intended to apply. There may be some
circumstances in which a provincial legislature will and others
in which it will not have such jurisdiction.
“5 and 6. In answer to the 5th and 6th Questions :—The replies
falling to be made to these questions are sufﬁciently indicated
in the answers to the 1st and 7th Questions.
“ '7. In answer to the 7th Question :—-That the legislature of Ontario
had jurisdiction to enact section 18 of the Act 53 Victoria
cap. 56., as explained by sec. 1 of the Act 54 Victoria cap.
46., but that the said enactments are operative only in so
far as they are not in conﬂict with any statutory provision
competently made by the Parliament of Canada and being in
force within the province or any district thereof.
it >1? =1? =1? >18 3%
“ The parties to bear their own costs of this appea .”
1 See the Questions ante, p. 163.
MUNICIPAL POWERS. 1075
MUNICIPAL CORPORATION OF A' H t
THE CITY or TORONTO . . We ‘m 8'
AND
VIRGO .
Bylaws—Regulation or Prohibition—Pedlars and Hawkers Trading
in city streets—Municipality of Ontario—R.S.O. (1887) c. 184.
s. 495 (3)—-Municipal By-la'w 2453. see. 12; By-law 2934. s. 12. 2a.
Respondent.
A marked distinction is to be drawn between the prohibition or pre-
vention of a trade and the regulation or governance of it, and indeed a
power to regulate and govern seems to imply the continued existence of
that which is to be regulated or governed.
The Municipal Act of Ontario, 0. 184. s. 495, sub-s. (3), provides that
municipalities may make by-laws for ‘.‘ licensing, regulating, and govern-
ing hawkers or petty chapmen and other persons carrying on petty
trades who go from place to place or to other men’s houses on foot or
with any animal bearing or drawing any goods,” &c.
In 1890 the Corporation of Toronto made a by-law enacting that
licences should be taken out by hawkers, petty chapmen, and other
persons carrying on petty trades.
In 1891 an amending by-law was passed which in eﬁect provided
that no hawkers, petty chapmen, &c., should after a certain date pro-
secute their calling in substantially the leading thoroughfares of Toronto
which extended to ten miles. ‘
Held that the by-law was ultra vires, because a power to- make laws
to regulate, without express words of prohibition, gives no authority to a
municipality to make it unlawful to carry on a lawful trade in a lawful
manner.
Appeal from the Supreme Court, Canada [see 22 S. C. 447], revers-
inga decision of the Ontario Court of Appeal [20 O.A. 435], and the
decision of Galt, C.J. of the CB, Ontario.
The Municipality Act of Ontario, R.S.O., c. 184. s. 495,sub-s. (3),
passed in 1880; 43 Vict. (O.) c. 24. s. 13, and re-enacted in the Muni-
cipal Act of 1882-3 (46 Vict. c. 18. s. 495, sub-s.) (3) gave power inter
alia to the Council of a city to pass by-laws for licensing, regulating,
and governing hawkers or petty chapmen and other persons carrying
on petty trades who go from place to place or to other men’s houses on
foot or with any animal hearing or drawing any goods. (See the full
section given below in the judgment expressed by Lord Davey.)
By the by-law No. 2453, s. 12, sub-s. passed by the Municipal
Council of Toronto on 13 January, 1890, as amended, it was ordained
that licences should be taken out by hawkers, petty chapmen, or other
persons carrying on petty trades.
On 26 October, 1891, the same municipality passed the by-law
N o. 2934, which amended sec. 12. of by-law No. 2453 by adding
thereto sub-sec. 2a., which enacted that no person named and speciﬁed
in sub-sec. 2 of that section, i.e., 12 of No. 2453, whether a licensee or
not shall after the 1st July 1892 prosecute his calling or trade in any
of the following streets and portions of streets in the City of Toronto.
Then followed an enumeration of the leading thoroughfares in Toronto,
and which covered, in the aggregate, 10 miles.
An application to quash the by-law sub-sec. 2a. was made, with the
ultimate result (as set out above), that the Supreme Court held the by-
law to be ultra rvires.
Judgment
in P.C.,
16 November,
1895.
3 Y 2
1076
REGULATION OF TRADES.
MUNICIPAL
CORPORATION
or TORONTO r.
Vrneo.
Judgment.
Lord Davey.
On appeal to the Judicial Committee [16 November 1895] :—
Judgment was delivered by Lord
Davey as follows [there being also
present Lords W'atson, Macnagh-
ten, Morris, and Sir R. Couch] :--
This is an appeal from a judgment
of the Supreme Court of Canada,
reversing by a majority the previous
decisions of the Court of Appeal
for Ontario, and of Chief Justice
Sir Thomas Galt. The question
for decision is whether a section of
a by-law was competently and
validly made by the Corporation
of the City of Toronto.
The section in question is de-
signated as sub-sec. 2a of sec.
12 of by-law 2934, in amendment
of sec. 12 of by-law 2453.
The last-mentioned section as
amended requires a license to be
taken out by—
“ All hawkers, petty chapmen,
or other persons carrying on petty
trades, or who go from place to
place, or to other men’s houses, on
foot or with any animal hearing
or drawing any goods, wares, or
merchandise for sale, or in or with
any boat, vessel, or other craft, or
otherwise carry goods, wares, or
merchandise for sale; except that
no such license shall be required
for hawking, peddling, or selling
from any vehicle or other convey-
ance goods, wares, or merchandise
to any retail dealer, or for hawking
or peddling goods, wares, or mer-
chandise the growth, produce, or
manufacture of this province, not
being liquors within the meaning
of the law relating to taverns or
tavern licenses, if the same are
being hawked or peddled by the
manufacturer or producer of such
goods, wares, or merchandise, or by
his bon 7' ﬁde servants or employees,
having written authority in that
behalf, and such servant or em-
ployee shall produce and exhibit
his written authority when required
so to do by any municipal or peace
officer: nor from any pedlar of
ﬁsh, farm and garden produce, fruit
and coal oil, or other small articles
that can be carried in the hand or
in a small basket, nor from any
tinker, cooper, glazier, harness-
mender, or any person usuall
trading or mending kettles, tubs,
household goods or umbrellas, or
going about and carrying with
him proper materials for such
mending.”
Sec. 2a is the only part of
the by-law now complained of.
It is in the following words :—
“ N 0 person named and speci--
ﬁed in sub-sec. 2 of, this section
(whether a licensee or not) shall,
after the ﬁrst day of July 1892,
prosecute his calling or trade in
any of the following streets and
portions of streets in the City of
Toronto.”
Then follows an enumeration of
eight streets in the City of Tor-
onto. It is stated in the evidence
that these streets comprise the busi-
est and most important thorough-
fares of the City.
The statutory power under which
the Corporation claim to make this
by-law is contained in the Muni-
cipal Act of Ontario (0. 184. of the
Revised Statutes of Ontario of
1887), see. 495, which so far
as is material is in the following
words :—
“The Council of any county,
city and town separated from the
county for municipal purposes,
may pass by-laws for the follow-
ing purposes . . . . . .
“ ‘For licensing, regulating, and
governing hawkers or petty chap-
men, and other persons carrying
on petty trades, or who go from
place to place or to other men’s
houses, on foot or with any animal,
bearing or drawing any goods,
wares, or merchandise for sale, or
in or with any boat, vessel, or
other craft, or otherwise carrying
goods, wares, or merchandise for
sale, and for ﬁxing the sum to be
paid for a license for exercising
such calling within the county,
city, or town, and the time the
license shall be in force:
“‘ In case of counties, for pro-
REGULATION
or TRADES. 1077
viding, at the discretion of the
council, either the treasurer or clerk
of the county, or the clerk of any
municipality within the county, with
licenses, in this and the previous
sub-section mentioned, for sale to
parties applying for the same under
such regulations as may be pre-
scribed in such bye-laws : '
“ ‘ Provided always that no such
license shall be required for hawk-
ing, peddling, or selling from any
‘vehicle or other conveyance any
goods, wares, or merchandise, to
any retail dealer, or for hawking or
peddling any goods, wares, or mer-
chandise, the growth, produce, or
manufacture of this province, not
being liquors within the meaning
of the law relating to taverns or
tavern licences, if the same are
being hawked or peddled by the
manufacturer or producer of such
goods, wares, or merchandise, or by
his bond ﬁde servants or employees
having written authority in that
behalf; and such servant or em-
ployee shall produce and exhibit
his written authority when required
so to do by any municipal or peace
ofﬁcer: . . . .
“ (a) The word ‘hawkers’ in
this sub-section shall include all
persons who, being agents for per-
sons not resident within the county,
sell or oﬂer for sale tea, dry goods,
or jewellery, or carry and expose
samples or patterns of any of such
goods to be afterwards delivered
within the county to any person
not being a wholesale or retail
dealer in such goods, wares, or mer-
chandise.”
Reference was also made to see.
503 of the same Act, which occurs
under the rubric “ Markets.” This
section empowers the council of
every city, town, and incorporated
village subject to the restrictions
and exceptions contained in the last
preceding six sections to pass by-
laws for:—-1. Establishing markets.
2. Regulating markets. 3. “ Pre~
venting or regulating the sale by
retail in the public streets, or
vacant lots adjacent thereto, of any
meat, vegetables, grain, hay, fruit,
MUNICIPAL
beverages, smallware, and other CORPORATION
articles offered for sale.”
Their Lordships are not required
to construe this section, or to
whether the words “ adjacent there-
to” do not refer to both public
streets and vacant lots and mean
adjacent to a market. Having re~
gard to the previous sections under
the same rubric they think the
clause is one for the protection of
the market only, and of limited
application.
In the opinion of their Lordships
it cannot be relied on in justiﬁca-
tion of the section now in question,
and indeed the point was not pressed
by the learned counsel for the
appellants.
It appears to their Lordships that
the real question is whether under
a power to pass by-laws “for re-
gulating and governing” hawkers,
&c., the council may prohibit
hawkers from plying their trade at
all in a substantial and important
portion of the city, no question of
any apprehended nuisance being
raised. It was contended that the
by-law was ultra wires, and also in
restraint of trade and unreason-
able. The two questions run very
much into each other, and in the
view which their Lordships take it
is not necessary to consider the
second question separately.
N o doubt the regulation and
governance of a trade may involve
the imposition of restrictions on its
exercise both as to time and to a
certain extent as to place where
such restrictions are in the opinion
of the public authority necessary
to prevent a nuisance or for the
maintenance of order. But their
Lordships think there is marked
distinction to be drawn between
the prohibition or prevention of a
trade and the regulation or govern-
ance of it, and indeed a power
to regulate and govern seems to
imply the continued existence of
that which is to be regulated or
governed. An examination of other
sections of the Act conﬁrms their
or TonoN'ro v.
VIRGO.
Judgment.
say Lord Davey.
1078
REGUL ATION' OF TRADES.
MUNICIPAL
CORPORATION
or TORONTO v.
Vmeo.
Judgment.
Lord Davey.
Lordships’ view, for it shows that
when the legislature intended to
give power to prevent or prohibit it
did so by express words.
Their Lordships refer (amongst
others) to see. 489, sub-sees. 25,
26, 28, 29, 44, 46, 51,and sec. 496,
sub-secs. 3, 13, 14, and 15. The
language of these sub-sections—
“ preventing or regulating ” ; “ pre-
venting or regulating and licens-
ing ”-—tends to show that the
framers of the Act did not intend
to include a power to prevent or
prohibit in a power to regulate or
govern. Several cases in the Eng-
lish and Canadian reports were
referred to in illustration of the
respondent’s argument. None of
these cases are direct authorities,
because the statutes from which
authority was derived to make the
by-laws there in question were
framed in terms different from the
statute now under consideration.
But through all these cases the
general principle may be traced,
that a municipal power of regula-
tion or of making by-laws for good
government, without express words
of prohibition, does not authorize
the making it unlawful to carry on
a lawful trade in a lawful manner.
It is argued that the by-law
impugned does not amount to
prohibition, because hawkers and
chapmen may still carry on their
business in certain streets of the
city. Their Lordships cannot ac-
cede to this argument. The ques-
tion is one of substance, and should
be regarded from the point of view
as well of the public as of the
hawkers. The eﬁect of the by-
law is practically to deprive the
residents of what is admittedly the
most important part of the city of
buying their goods of or of trading
with the class of traders in ques-
tion. And this observation receives
additional force from the very wide
deﬁnition given to “hawkers” in
the Act. At the same time the
“ hawkers,” &c., are excluded from
exercising their trade in that part
of the city. There was no evi-
dence, and it is scarcely conceivable
that the trade cannot be carried on
without occasioning a nuisance.
The appellants in their printed
case wisely disclaim any intention
on the part of the council to dis
criminate against hawkers and
pedlars in favour of permanent
shopkeepers. No other explana-
tion of the object of the by-laws
is offered. The question therefore
is reduced to a bare question of
power.
Their Lordships on the whole
have come to the conclusion that it
was not the intention of the Act to
give this power to the Corporation.
They therefore agree with the
majority of the judges of the
Supreme Court, and will humbly
advise Her Majesty that this appeal
be dismissed with costs.
PRIVILEGES or PROVINCIAL PABLIAMEN’I‘S. 1079
FIELDING AND OTHERS
AND
Appellants.
THOMAS. . . . Respondent.
Privileges—House of Assembly—Contempt committed in face of the
House—Power to punish by imprisonment—Arrest of [Member——
The House of Assembly as a Court of Record--B. 1V. A. Act,
1867, s. 92, sub-s. 1 : 28 <5 29 Vict. c. 63. s. 5: 38 c} 39 Vict. c. 38.
s. 1 : R. S. N. S. (5th Ser.) 0. 3. ss. 20, 26, 29, 30, 31.
The independence of a Colonial Legislature from outside interference:
and the protection of members from insult while in the discharge of their
duties, are matters part of the constitution of the province.
A Provincial House of Assembly can be a court of record for the
punishment of contempt committed in the face of the House; and the
exercise of such jurisdiction does not enter the department of state known
as the criminal law.
A Colonial Legislature cannot confer on itself the privileges of the
House of Commons of the United Kingdom without express authorit
from the Imperial Parliament This authority is given by s. 5 of 28 & 29
Vict. c. 63., but a further step is required to give the right—namely, that
the provincial legislature should pass a law giving its own legislature
those privileges, immunities, and powers, &c.
It must now be admitted that the law has been laid down differently
from the decisions of Ministers of Justice [See ante, p. 12], and that the
provinces of Canada retain their independence, except as regards matters
aﬁecting the Peace, Order, and Good Government of Canada.
By sec. 92 of the British North America Act, 1867, powers to alter
their constitutions are conferred on the provincial legislatures of Canada ,-
this includes the power to pass Acts deﬁning the privileges, immunities,
and powers of their respective legislatures, and to exempt the members
from all actions for petitions, bills, or resolutions before either House
of Legislature. The lVova Scotia Legislature having passed such an
Act, a member of the House of Assembly committed contempt in
wilfully disobeying an order of the House to attend at the Bar to be
reprimanded. The House by resolution ordered him to be taken into
custody by the sergeant-at-arms, and committed under the Speaker’s
warrant to the common jail. Thereupon the offender brought an action
for false imprisonment against the Premier and others who voted for the
resolution, and obtained damages.
Held, by the Judicial Committee, reversing the judgment of the
Supreme Court of N ot'a Scotia [26. NS. 55], that the Legislature of N ova
Scotia had power to pass the Act, and the House of Assembly to commit
and punish such an oﬁender, and that the plea of indemnity against any
action at law for things done in the Provincial Legislature, relied on by
the Premier and other members of the House, was valid.
Burdett v. Abbot, 14 East, p. 65; and The Sheriﬂ' of Middlesex, 11
Adol. 86 El. 273, held to apply : Barton’ v. Taylor, 11 App. Cas. 197,
distinguished.
This was an action brought against the Hon. W. S. Fielding, Premier,
and other members of the House of Assembly of Nova Scotia for votes
given by them in the House to take the respondent David J. Thomas,
Judgment-
in BC,
28 July, 1896.
' Burdett v.
Abbot,
14 East, and
Sheriff of
Middlesex,
ll Adol. and
El. 273,
followed.
1080 CONTEMPT OF PARLIAMENT.
FIELDING v.
THOMAS.
Mayor of the town of T 7’Zt7'0, and a member of the House, into custody
of the sergeant-at-arms for refusing to obey an order of the House, and
subsequently for committing him to the common jail of the county of
Halifax for 48 hours.
It appeared that the respondent at the time of the transactions in
question was Mayor of the town of T 7167?), in the county of Colchester,
lVova Sootv'a. Frederick A. Laurence, one of the appellants, was Re-
corder and Stipendiary Magistrate of the town of T'rnro and also a
member of the House of Assembly for the county of Colo/tester. A Bill
entitled “ An Act to enable the town of Truro to borrow certain money ”
was prepared by the Town Council of Tru-ro early in the session of 1891,
and forwarded to Laurence to be introduced by him to the House of
Assembly. It was alleged that before introducing this Bill to the
Assembly, Laurence inserted two clauses therein increasing his own
salary as said Stipendiary Magistrate. The Bill was enacted as 54 Vict.,
Chapter 119. During the session of the legislature in 1892, the Town
Council prepared and forwarded to George Clarke, a second member of
the House of Assembly for the county of Cole/tester, a petition signed
by the respondent as Mayor, and by the other members of the said
Town Council, praying for the repeal by the legislature of the clauses
of the said Act which they alleged had been inserted therein without their
knowledge before the said Bill was introduced to the House. There was
attached as an exhibit to this petition a copy of certain articles of com-
plaint preferred against Laurence in certain proceedings then pending, for
the removal of the said Laurence from his otﬁce as Recorder of T ruro.
It was further alleged that subsequent to its transmission, but before
the petition was presented to the House, the informality of attaching an
exhibit thereto and a doubt as to the exhibit being proper in substance,
was brought to the attention of the respondent, and he thereupon re-
quested Clarke to return the petition. Instead of complying with this
request, Clarke gave the petition to Laurence, who laid it upon the table
of the House of Assembly. Thereupon the House of Assembly in the
absence of the respondent passed a resolution setting forth that the
respondent, having caused a libel reﬂecting upon a member of the
House to be printed and delivered to a member of the House, for the
purpose of being read in or presented to the House, was guilty of a breach of
the privileges of the House, and the respondent was thereupon summoned
to appear at the Bar of the House. The respondent accordingly ap-
peared at the Bar of the House on April 18th, 1892, and having asked
that the consideration of the case should be postponed until he had the
assistance of counsel, was directed to appear at the Bar of the House on
April 20th. The respondent did appear at the Bar of the House on
April 20th, and thereupon demurred to the jurisdiction of the House,
and stated that the acts which formed the subject of the complaint against
him were done by him in good faith in his capacity as Mayor of Tr'm'o,
and were not libellous, and that on being informed that there was
doubt whether the petition, with the document attached thereto, con-
formed with the rules of the House or parliamentary practice, he had
caused it to be withdrawn. He then requested to be excused from
further attendance. _
The respondent was then orally requested by the Speaker to with-
draw, and remain in attendance, and he withdrew.
The House then passed the following resolution :—
‘f That this House, while fully cognizant of its own authority, under
which David J. Thomas has appeared at the Bar of the House, and
prepared on all proper occasions to exercise it, does not deem the offence
ARREST OF MEMBER." 1081
committed by Mr. Thomas of suﬂicient gravity to call for any large FIELDING "-
exercise of authority; that, therefore, Mr. Thomas be reprimanded for THOMAS-
the breach of privilege which he has committed, and that such
reprimand be given by the reading of this resolution to Mr. Thomas
by the Speaker.” 1
Upon a further resolution of the said House, the Speaker then ordered
that the respondent should be again called in by the sergeant-at-arms
(Haliburton) .
The sergeant-at-arms accordingly communicated such order to the
respondent, who still remained in attendance, but he refused to obey such
order, and left the precincts of the House.
Upon the respondent’s said refusal and leaving being communicated
to the Speaker by the sergeant-at-arms, the House resolved and ordered
that the respondent should be taken into the custody of the sergeant-at-
arms, and that the Speaker should issue his warrant accordingly, which
the Speaker did.
On the 22nd April the respondent was arrested by the sergeant-at-
arms at Truro, and was thence taken to the Bar of the House, when
certain questions were put and answers made by him. Ultimately the
House resolved that the respondent should withdraw in custody of
the sergeant-at-arms, and should be detained in such custody, and
should be brought to the Bar of the House at 9.30 p.m. on 23rd
April, to be there dealt with as the House should direct, and the Speaker
ordered the sergeant-at-arms to act accordingly.
On the 23rd April the respondent was again brought by the sergeant-
at-arms to the Bar of the House. He was then asked whether he had
any statement to make before the House proceeded to adjudicate upon
the charge of contempt against him then pending before the House, and
replied in the negative.
He was then ordered to withdraw, and the House resolved “ That the
said David J. Thomas for his said offence be committed to the common
jail of the county of H alzlfarv, in the city of Halifax, for the space of
forty-eight hours.
“ Provided, however, that in the event of this legislature being
prorogued prior to the expiration of said term of forty-eight hours, the
said term of imprisonment shall on such prorogation forthwith de-
termine.
“ That Mr. Speaker do forthwith issue his warrant accordingly; and
in the meantime the said David J. Thomas remain in the custody of
the sergeant-at-arms.”
The respondent was then again brought to the Bar of the House by
the sergeant-at-arms, and such resolution was read to him, and he was
then ordered to withdraw in custody of the sergeant-at-arms. The
Speaker on the same day issued, pursuant to the said resolution, another
warrant under his hand and seal commanding the sergeant-at-arms to
convey the respondent to the said prison, and commanding the keeper
thereof to receive him. This was done, and on 25th April the re-
spondent was discharged upon a writ of Habeas Corpus issued by the
Supreme Court of Nova Scotia.
The writ of summons in this action was issued 27 April. On 30 April
1892 an Act (e. 42.) was passed to indemnify the Speaker and other officers
of the House of Assembly who assisted in preparing and executing the
warrants of April 20 and 23. The case was tried at Truro 15 June and
three following days, 1892, before Townshend, J and“ a jury. The
1 From printed Record, p. 66.
1082 PRIVILEGES or PARLIAMENT.
Finnnme v.
TnoMAs.
respondent claimed damages in respect of trespass, assault, and unlawful
imprisonment.- The main defence of the appellants was that by virtue
of the R.S.N.S. (5 ser.) 0. 3. s. 20 [see the Judgment below], the House
of Assembly held, enjoyed, and exercised the like privileges, immunities,
and powers as were enjoyed by the House of Commons of Canada, and by
the House of Commons of the United Kingdom. Secondly, that by virtue
of sees. 29, 30, and 31 [see the Judgment below], the House of Assembly
was a Court of Record, and had the rights and privileges of a Court of
Record to punish insults to, or libels upon, members of the House during
the session of the legislature, and that the acts complained of were done
by the House in the'exercise of such rights. Thirdly, they relied on their
privileges as judges of the said Court of Record so constituted under the
statute; and fourthly they relied on the 26th section of the statute, whereby
a member of the said House is exempt from, inter alia, any civil action
‘or damages for any matter or thing brought by him by petition, bill or
resolution, motion or otherwise, before such House.
The respondent pleaded that the several sections of the statute relied
on were ultra wires; that the summons of 14 April and warrants of 20
and 23 April were insuﬂﬁcient in law, and irregular and void, and issued
without jurisdiction; that the warrants did not disclose the oifence for
which the respondent was arrested; that the House acted without juris-
diction because the respondent was prevented from making a full answer
and from having counsel to assist him ; and that the House had no
jurisdiction to adjudicate upon the said libel or to commit the' respondent
to the common jail. He further denied that the House was sitting or
acting as a Court of Record.
Townshend, J ., ruled that the action must be dismissed as against the
oﬂicers of the House under the late Act. As against the appellants he
directed the jury that the provisions of the statute, R. S. N. S. c. 3.,
were not within the competency of the legislature of Nova Seotz'a. The
jury assessed the damages at $200, and judgment was entered for the
respondent for that sum and costs.
The appellants appealed to the Supreme Court to set aside the
verdict and judgment and enter it for them; and the respondent appealed
from the judgment dismissing the action against the oﬂicers of the House
and moved for a new trial on the ground of misdirection of the jury by
the judge on the question of damages. The appeal to the S. C. N. S. was
argued on '7, 8, 9, 10, and 11 February 1893. -
On 2 Dec. 1893 Graham, E. J ., McDonald, C.J., concurring, held
that the sections in question of R. S. N. S. c. 3. were ultra vires of the
local legislature, and that the House of Assembly were not indemniﬁed
against the action by sec. 26. Ritchie, J ., was for allowing the appellants’
appeal on the ground that the statute was not ultra wires; and further
that the House was sitting as a Court of Record trying a matter within
its jurisdiction, and that the members accordingly could not be sued for
acts done by them in their judicial capacity. Weatherbe, J ., was of
opinion that the statute should be construed as empowering the House
,to deal with charges of crime only as an incident of protecting members
inthe proceedings in question.1
The judges being equal in opinion, the verdict and judgment stood.
On ‘August 7 , 1894, the Judicial Committee, on the petition of the
appellants, recommended that special leave to prosecute the appeal he.
allowed.
The appeal was heard on 26 July 1895. Arthur Cohen, Q.C. ; Hon. J. Longley, Att.-Gen. ‘for Nova Scotz'a ; R. L. Borden, Q.C. (N. S. Bar);
“1 Reported under the name of Thomas v. Haliburton, 26 N.S. 55.
PRIVILEGES OF PARLIAMENT. 1083'
and J. C. Lewis Coward, were for the appellants; the solicitors being FIELDING v.
Hill, Son, and Rickards. Hon. Ed. Blake, Q.C., and T. T. Paine were
for the respondent, the solicitors being Paines, Blythe, and Huxtable.
THOMAS.
The following leading cases bear on the question z—Lowt/zer v. Earl of _
Radnor [1806, 8 East 113] ; Burdett v. Abbot [1811, 14 East, p. 138 :
There Lord Ellenborough said, in reference to the House of Commons
0f the United Kingdom, that independently of its power of removing
actual impediments to its proceedings, “ It must also have the power of
protecting itself against insult and indignity whenever offered, by
punishing those who offer it ”] ; The Sheriﬂ' of Zlficldlesear, 11 Adol. and
El. 273; In re Dansereau [ante, p. 36] ; Gosset v. Howard [1845—7,
10 Q. B. 359, 411 : Verbal order of arrest] ; Barton v. Taylor [1886, 11
App. Cas. 197 : Earl of Selborne—Powers in colonial legislatures,
except such as are necessary to their existence, must be by express grant] ;
Doyle v. Falconer [1866, LB. 1 BC. 328 : A colony under 28 8a 29 Vict.
c. 63.-has power to deﬁne its laws and privileges] ; Kiclley v. Carson
[4 M00. PC. 63]; Phillips v. Eyre [1870, DR. 6. QB. 1]; Wilson’s
case [1845, 7 QB. 984: Law of Jersey]; Dawkins v. Lora’ Rolzeby
[1875, LB. 7 Eng. & Ir. 744 : Lord Cairns—Protection of military
witnesses before military court] ; Calder v. Halkel [1839, 3 M00. BC.
28]; Royal Aquarium v. Parkinson [[1892], 1 QB. 431 : What is a
Court P]; Reg. v. London County Council [1891 [1892], 1 QB. 190];
Leeson v. General Council of M'edical Education [1889, 43 Ch. D.
p. 379].
28 July, 1896—JUDGMENT.
Present: Lord Halsbury, L.C.,
Lords Herschell, Watson, Mac-
naghten, Morris, Davey, and Sir
Richard Couch.
Lord Halsbury, L.C. : This is an
appeal from an order of the Supreme
Court of Nova Scotia dismissing the
application of the appellants for an
order that the verdict and judg-
ment entered for the present re-
spondent at the trial of the action
before Townshend, J ., might be set
aside, and judgment should be
entered for the appellants. By
the verdict and judgment in ques-
tion the appellants were found to
have unlawfully assaulted and im-
prisoned the respondent. The Su-
preme Court were equally divided.
McDonald, C.J., and Graham,
E.J., were in favour of conﬁrming
the judgment; whilst Ritchie, J .,
and Weatherbe, J ., held that judg—
ment should be entered for the
appellants. The judgment of Town-
shend, J .,therefore stood conﬁrmed.
The respondent was summoned
to attend at the Bar of the House
of Assembly to answer a breach
of the privileges of the House
in having published a libel re-
ﬂecting on a member or mem-
bers of the House (in connection
with their conduct as members
of the House). He attended on
two occasions, and on the second
occasion was ordered to withdraw
and remain in attendance during
the debate which took place. On
being called in by the sergeant-at-
arms by order of the Speaker, he
refused to obey the order and left
the precincts of the House.
It is not denied that the re-
spondent intentionally disobeyed
the order of the House. He was
thereupon arrested by order of the
House, and on being brought to the
Bar was adjudged to have been
guilty of a contempt of the House
committed in the face of the House,
and was committed to the common
jail of Halifax for 48 hours. Up-
on this he brought an action for
Judgment.
Lord
Halsbury, L.C.
1084!
PRIVILEGES OF PARLIAMENT.
FIELDING v.
THOMAS.
Judgment.
Lord
Halsbury, LC.
assault and imprisonment, and it is
from the judgment in that action
that the present appeal is brought.
The appellants are sought to be
made liable by reason of their hav-
ing voted as members of the House
of Assembly for the imprisonment
of the respondent.
The acts complained of were
justiﬁed under sees. 20, 29, 30, 31
of c. 3. of the Revised Statutes of
Nova Scotia, ﬁfth series. The ap-
pellants also relied on the indem- .,
nity given to members of the House
of Assembly by sec. 26 of the same
statute.
These sections are as follows :—
“ 20. In all matters and cases
not specially provided for by this
' chapter, or by any other statute of
this province, the Legislative Coun-
cil of this‘ province, and the com-
mittees and members thereof re-
spectively, shall at any time hold,
enjoy, and exercise such and the
like privileges, immunities, and
powers as shall be for the time be-
ing held, enjoyed, and exercised by
the Senate of the Dominion of
Canada, and by the respective com-
mittees and members thereof, and
the House of Assembly, and the
committees and members thereof,
respectively, shall, at any time,
hold, enjoy, and exercise such
and the like- privileges, immuni-
ties, and powers as shall for
the time being be held, enjoyed,
and exercised by the House of
Commons of Canada, and by the
respective committees and members
thereof; and such privileges, im-
munities, and powers, of both
Houses, shall be deemed to be, and
shall be, part of the general and
public law of Nova Scotia, and it
shall not be necessary to plead the
same, but the same shall in all
courts of justice in this province,
and by and before all justices and
others, be taken notice of judici-
ally.
“ 26. No member of either
House shall be liable to any civil
action or prosecution, arrest, im-
prisonment, or damages, by reason
of any matter or thing brought by
him by petition, bill, resolution,
motion, or otherwise, or said by
him before such House; and the
bringing of any such action or
prosecution, the causing _or eﬁect-
ing any such arrest or imprison-
ment, and the awarding of any such
damages, shall be deemed violations
of this Chapter.
“29. The following acts, mat-
ters, and things are prohibited,
and shall be deemed infringements
of this Chapter :—
“ 1. Insults to or assaults or
libels upon members of either
House during the session of
the legislature.”
The other provisions of the sec-
tion are immaterial to the present
purpose.
“ 30. Each House shall be a
court of record, and shall have all
the rights and privileges of a court
of record for the purpose of sum-
marily inquiring into and (after
the lapse of twenty-four hours)
punishing the acts, matters, and
things herein declared to be viola-
tions or infringements of this
Chapter; and for the purposes of
this Chapter each House is hereby
declared to possess all such powers
and jurisdiction as may be neces-
sary for inquiring into, judging,
and pronouncing uponjthe commis,
sion or doing of any such acts,
matters, or things, and awarding
and carrying into execution the
punishment thereof provided for by
this Chapter, and amongst other
things each House shall have power
to make such rules as may be
deemed necessary or proper for its
procedure as such court as afore-
said.
“31. Every person who shall
be guilty of an infringement or
violation of this Chapter shall be
liable therefor (in addition to any
other penalty or punishment to
which he may by law be subject)
to an imprisonment for such time
during the session of the legislature
then being held, as may be deter-
mined by the House before whom
PRIVILEGES OF PARLIAMENT.
1085
such infringement violation
shall be inquired into. The nature
of the oﬂence shall be succinctly
and clearly stated and set forth on
the face of any warrant issued
for a commitment under this sec-
tion.”
It should be mentioned that
by an Act (Revised Statutes of
Canada (1886) c. 11.) the Domi-
nion Parliament had already con-
ferred on themselves the privileges,
immunities, and powers of the
House of Commons of the United
Kingdom [31 Vict. 22].
If it was within the powers of
the Nova Scotia Legislature to
enact the provisions contained in
Sec. 20, and the privileges of the
Nova Scotia Legislature are the
same as those of the House of
Commons of the United Kingdom
as they existed at the date of the
passing of the British North
America Act, 1867, there can be
no doubt that the House of Assem-
bly had complete power to adjudi-
cate that the respondent had been
guilty of a breach of privilege and
contempt, and to punish that
breach by imprisonment. The
contempt complained of was a
wilful disobedience to a lawful
order of the House to attend.
The authorities summed up in
Burdett 'v. Abbot, 14 East 1, and
followed in the case of the Sheriff
of Middlesex, 11 Adol. and Ellis
273, establish beyond all possibility
of controversy the right of the
House of Commons of the United
Kingdom to protect itself against
insult and violence by its own pro-
cess without appealing to the ordi-
nary courts of law, and without
having its process interfered with
by those courts.
The respondent, however, ar-
gues that the Act of the provin-
cial legislature, which undoubtedly
creates the jurisdiction and further
indemniﬁed members of it against
any proceedings for their conduct
or votes in the House by the ordi-
nary courts of law, is ultra wires.
According to the decisions
OI‘
which have been given by this
Board, there is now no doubt that
the provincial legislature could not
confer on itself the privileges of
the House of Commons of the
United Kingdom, or the power to
punish the breach of those privi-
leges by imprisonment or com
mittal for contempt without ex-
press authority from the imperial
legislature. By sec. - 1 of 38
& 39 Vict. c. 38., which was
substituted for sec. 18 of the
British North America Act, 1867,
it was enacted that the privileges,
immunities, and powers to be held,
enjoyed, and exercised by the
Dominion House of Commons
should be such as should be from
time to time deﬁned by the Act of
the Parliament of Canada, but so
that any Act of the Parliament of
Canada deﬁning such privileges,
immunities, or powers should not
confer any privileges, immunities,
or powers exceeding those at the
passing of such Act, held, enjoyed,
and exercised by the Commons
House of Parliament of the United
Kingdom and by the members
thereof. There is no similar
enactment in the British North
America Act, 1867, relating to the
House of Assembly of Nova Scotia,
and it was argued therefore that it
was not the intention of the Im-
perial Parliament to confer such a
power on that legislature. But it
is to be observed that the House of
Commons of Canada was a legisla-
tive body, created for the ﬁrst time
by the British North America Act,
and it may have been thought ex-
pedient to make express provision
for the privileges, immunities, and
powers of the body so created,
which was not necessary in the
case of the existing legislature of
Nova Scotia. By sec. 88 [of the
B.N.A. Act, 1867] the constitu-
tion of the legislature of the
province of Nova Scotia was, sub-
ject to the provisions of the Act,
to continue as it existed at the
Union until altered by authority
of the Act. It was therefore an
FIELDING v.
THOMAS.
Judgment.
Lord
Halsbury, LC.
1086 POWERS or PROVINCIAL PARLIAMENTS.
Fintnmo 'v.
THOMAS.
Judgment.
Lord
Halsbury, LC.
existing legislature, subject only
to the provisions of the Act. By
sec. 5 of the Colonial Laws Validity
Act (28 & 29 Vict. c. 63.) it had at
that time full power to make laws
respecting its constitution, powers,
and procedure. It is difficult to
see how this power was taken away
from it, and the power seems
sufficient for the purpose.
Their Lordships are, however,
of opinion that the British North
America Act itself confers the
power (if it did not already exist)
to pass Acts for deﬁning the powers
and privileges of the provincial
legislature. TBy sec. 92 of that
Act the provincial legislatures may
exclusively make laws in relation
to matters coming within the classes
of subjects enumerated, inter alia
the amendment from time to time
of the constitution of the province,
with but one exception, namely, as
regards the oﬂice of Lieutenant-
Governor.
It surely cannot be contended
that the independence of the pro-
vincial legislatures from outside
interference, its protection, and the
protection of its members from in-
sult while in the discharge of their
duties, are not matters which may
be classed as part of the constitu-
tion of the province, or that legis-
lation on such matters would not
be aptly and properly described as
part of the constitutional law of
the province.
It is further argued that the
order which the respondent dis-
obeyed was not a lawful order or
one which he was under any
obligation to obey. The argument
seems to be that the original cause
of complaint was a libel; that
though the particular breach of
the Act complained of was the
disobedience to the orders of the
House, yet as those orders were
issued in reference to a certain
. petition presented to the House,
the contents of which were alleged
to be libellous, and during the in-
vestigation of the question who
was responsible for its presentation,
and as it must be assumed that a
libel is a matter beyond the juris-
diction of the House to be inquired
into, inasmuch as libel is a criminal
oifence, and the criminal law is
one of the matters reserved for
the exclusive jurisdiction of the
Dominion Parliament, the whole
matter was ultra tires, and both
the members who voted and the
oﬂicers who carried out the orders
of the House are responsible to an
ordinary action at law.
“ Their Lordships are unable
to acquiesce in any such conten-
tion. It is true that the criminal
law is one of the subjects reserved
by the British North America Act
for the Dominion Parliament, but
that does not prevent an inquiry
into and the punishment of an
interference with the powers con-
ferred upon the provincial legis-
latures by insult or violence. The
legislature has none the less a
right to prevent and punish ob-
struction to the business of legisla-
tion because the interference or
obstruction is of a character which
involves the commission of a crim-
inal offence or brings the offender
within reach of the criminal law.
Neither in the House of Commons
of the United Kingdom nor the
Nova Scotia Assembly could a
breach of the privileges of either
body be regarded as subjects
ordinarily included within that
department of State Government
which is known as the Criminal
Law.
The effort to drag such questions
before the ordinary Courts when
assaults or libels have been in
question in the British Houses of
Legislature have been invariably
unsuccessful, and it may be ob-
served that 1 Will. and Mary,
Sess. II., c. 2. s. 1, sub-sec. 9,
“ That the freedom of speech, and
debates or proceedings in Parlia-
ment, ought not to be impeached
or questioned in any court or place
out of Parliament,” is declaratory
and not enacting.
Their Lordships are therefore
. FREEDOM OF SPEECH IN PARLIAMENT.
1087
of opinion that the 20th section of
the provincial Act is not ultra
vireo, and affords a defence to the
action. It may be that sees 30,
31 of the provincial Act, if con-
strued literally and apart from their
context, would be ultra wires.
Their Lordships are disposed to
think that the House of Assembly
could not constitute itself a Court
of Record for the trial of criminal
oﬁences. But read in the light of
the other sections of this Act, and
having regard to the subject matter
with which the legislature was
dealing, their Lordships think that
those sections were merely intended
to give to the House the powers of
a Court of Record for the purpose
of dealing with breaches of privi-
lege and contempt by way of com-
mittal. If they mean more than
this, or if it be taken as a power to
try or punish criminal offences
otherwise than as incident to the
protection of members in their pro-
ceedings, sec. 30 could not be sup-
ported.
It is to be observed that in the
case of Barton r. Taylor, 11 L.R.
App. Cases Privy Council 197,
referred to by one of the learned
judges below, is no authority ‘in
favour of the contention here. No
statute was there relied upon, but
the Legislative Assembly itself in
that case had in pursuance of
statutory powers adopted certain
Standing Rules or Orders for the
orderly conduct of the business of
the Assembly. The trespasses
complained of were adjudged by
this Board not to be justiﬁable
under the Standing Orders. It
was then sought to justify the acts
in question as being within a power
incident to or inherent in a Colonial
Legislative Assembly. This Board
refused to adopt that contention, but
their Lordships expressly added :—
“ They think it proper to add
that they cannot agree with the
opinion which seems to have been
expressed by the Court below, that
the powers conferred upon the
Legislative Assembly by the Con-
stitution Act do not enable the
Assembly ‘to adopt from the
Imperial Parliament, or to pass by
its own authority, any Standing
Order giving itself the power to
punish an obstructing member, or
remove him from the Chamber, for
any longer period than the sitting
during which the obstruction
occurred.’ This, of course, could
not be done by the Assembly alone
without the assent of the Gover-
nor. But their Lordships are of
opinion that it might be done with
the Governor’s assent; and that
the express powers given by the
Constitution Act are not limited
by the principles of common law
applicable to those inherent powers,
which must be implied (without
express grant) from mere necessity,
according to the maxim, Quando
lea? aliquid cont-edit, concedere
'vz'oletur et illud, sine quo res ipsa
esse non potest. Their Lordships’
aﬂlrmance of the Judgment ap-
pealed from is founded on the view,
not that this could not have been
done, but that it was not done, and
that nothing appears on the record
which can give the resolution
suspending the respondent a
larger operation than that which
the Court below has ascribed to it ”
But independently of these
considerations, the provisions of
sec. 26 of the Act of the provincial
legislature would in their Lord-
ships’ opinion form a complete
answer to the action, even if the
act complained of had been in itself
actionable. Their Lordships are
here dealing with a civil action,
and they think it suﬂicient to say
that the legislature could relieve
members of the House from civil
liability for acts done and words
spoken in the House, whether
they could or could not do so
from liability to a criminal prosecu
tion.
N 0 such question as that which
arose in Barton 1). Taylor arises
here. All these matters—the ex-
press enactment of the privileges
of the House of Commons of the
FIELDING v.
THOMAS.
Judgment.
Lord
Halsbury, L.C.
1088 POWERS OF PROVINCIAL PARLIAMENTS.
Fmnnme 'v.
THOMAS.
Judgment.
Lord
Halsbury, LC.
United Kingdom -—the express
power to deal with such acts by
the Provincial Assembly—the ex-
press indemnity against any action
at law for things done in the Provin-
cial Parliament—are all explicitly
given, and the only arguable ques-
tion is that which their Lordships
have dealt with, namely, whether it
was Within the power of the pro-
vincial legislature to make such
laws.
For these reasons their Lord-
ships will humbly recommend to
Her Majesty that the judgment in
this case should be reversed and
judgment entered for the appel-
lants here (the defendants below)
with costs. The respondent must
pay the cost of this appeal.

(1%9)
INDEX.
A
PAGE
Abolishing of Seignorial and Fief Tenures 4, 650
Abolition of Liquor Trafﬁc and sub-sec. 9, sec. 92 . 1066
., of Powers of Lieutenant-Governors of Quebec and Ontario 33
Absorb, Dominion not to, Powers of Provinces 43
Academic Questions and a Court of Law , 1_o73
Access to Tidal Navigable River 493
Accounts of Colonial Lighthouse Dues. m 992
Act giving Power to Appeal 141
Acting by and with Advice of Privy Council _ 9
Acts of Provinces declared ultra vires . . 33
Additional Senators may be summoned _ _ 14
Additions to Act of 1867 made in London 186
jlden,IﬁghtofAmqmalﬁmn1.n .H ... n. . 1009
Adjacent Territories added .. I 3
Adjustment of Representation every Ten Years 23
Administration, Letters of, Recognition of 903
., of Indian Affairs 95
,, of Jusﬁce .H ... H. ... 308
H ,, in the Provinces, and Validity of Commissions 33, 34
,, of Law by the Courts ' .. 317
Admiralty Courts, Canada 395
Jurisdiction Act . v833
,, Local Courts 395
,, Courts in British Possessions 394
Adrianople, Right of Appeal from .. , 1013
Advances for Repair and Construction of Colonial Light-houses, H992
Advice, Governor-General ought to defer to, of his Minister 30
,, of Ministers, Lieutenant-Governor must act by 29
Advocates and Appeal to P. C. 420
Africa, Right of Appeal from _ 1009
Age of Senator 13
Agreement with Canada as to Copyrigh 2
Agriculture and Immigration 339
Alien and British Territory , . 328
Alienation of Fiefs and Seignories 4, 650
Aliens 100
,, holding Land in Manitoba 101
Allegiance Oath .;. I... 537
Allotment of Land to Protestant Clergy, Old Law 534
Allowance to Judge ' 394
Alteration of Act by Province and Dom. 240
S 2340.
1090 INDEX.
Alteration—cont PAGE
,, of Constitution, Power in Province 4, 100, 1086
,, of Powers of Lieutenant-Governors of Quebec and Ontario 33
Alterations in B.N.A. Act, 1867 745
Amendments to B.N.A. Act, 1867 745
American Constitution, Art. 1. ss. 2, 7, 12, 13, 15 69
,, Copyright Act .. 875
,, Duty in Licence Question 216
,, Divorce l 417, 447-
,, License Cases 101
Ample Power of Provincial Legislature . . . 142
Analogous example of Status of Provincial Legislatures 1
Ancient Jurisdiction of RC. 1005
Ancillary power ‘ 142
Anti-Confederation Laws... 55
Anticosti Company Case ,.. 307
Antigua, Right of Appeal from 1009
Antiquity of Lieutcnant~Governor’s Authority 9
Appeal, Advocate struck off the Rolls .. 414
,, allowed for special reasons . . . . 431
,, and imprisonment for alleged insanity .. .. 418
,, as to precedence of Queen’s Counsel 7, 11, 35
,, by order of Governor-General... 405
,, conﬂict between Codes ' 428
,, costs in any event 428
,, Court, Canada 394
,, Criminal, and Free Pardon 417, 418
,, Decision of Court below 425
,, from Certiorari 426
,, from India—Bengal a ~ 409,1010
,, from matter of fact 425, 428
,, from Supreme Court of Canada 404
,, grievance limited to Appellant... 408
,, in a claim to challenge Jury 418
,, in Arson case 420
,, in case of Forgery 419
,, in question of right to kill wild animals 419
,, Instalments, value of... 421
,, in taking Oysters 419
,, Interim Order 436
,, Interlocutory and Final Judgments 421
,, irregularly allowed .. 422, 423
,, leave given subject to competency being questioned .. . 413
,, leave to, Election Petition 45, 308 et seq.
,, leave to lodge Cross Appeal ' - 452
,, leave to, what necessary to show to obtain ‘ 19, 433, 442
,, may be brought from any Admiralty Court in British Possession to RC. 891
,, misstatements or concealment of fact i 430
,, not allowing Barrister to Practise . .. 420
,, of Barrister from ﬁne , - 414
,, on conditions - 418, 426, 427, 428
,, on questions of Mercantile Law - t - . 433
,, on refusal to allow Barrister to Practise 420
,, question being whether a negotiable instrument or not - . . 425
,, ' special arguments at the hearing of the application 426
,, special leave ...307, 410 et seq.
,, special leave, Privilege question - 436
INDEX. 11 )91
Appeal—cont PAGE
,, Special Reference cases 401
,, stay of Execution ..-. 436
,, struck out of the list if notice of appeal not complied with 482
,, time for Petitioning in Court below 1009
,, time for prosecuting 410
,, to Governor-General in Counci 333, 377, 384
,, to Parliament of Great Britain. Old Appeal as to right to be sum-
moned to Council .. 572
,, to P.C., Annual Rent, Fee, &c. 397, 400
,, ,, in Criminal Suit 409
,, ,, in Divorce Appeals 416, 417
,, ,, Printed Cases. See note 1041
,, ,, Sec Alphabetical List 1009
,, ,, Special reference through a Secretary of State 411
,, ,, Wide Discretion in Committee .. 412
,, under Insolvency Law .. . 80
,, value of Subject Matter, Ontari . . 396
,, where Advocate Disbarred 420
,, where Bar suspended from Practising 420
,, where J ury’s verdict of wilful murder was set asid 418
,, where special leave granted, sample of cases ._.. 449
., where Witnesses discredited I... ~ 424
,, word “Final” .. 82
,, wrong punishment inﬂicted . . 414
Appealafble amount, Interest added 424, 433
,, value, adding costs . 424
,, ,, amount claimed 424
,, ,, and construction of Act 424
,, ' ,, and Taxation 122
,, ,, cases summarized 420
,, ,, demanded, sum 405, 411, 424
,, ,, French Jurisprudence 434
,, ,, other actions involved 424
,, ,, See 1009 et seq.
,, ,, sum recovered .. 424, 432
Application of Colonial Lighthouse dues 992
Appointment of Administrator when Lieutenant-Governor absent or ill 35
,, of Canadian officers 541
,, of Governor-General 3
,. ofJudges 389
,, of Legislative Council of Quebec 36
Appropriation Bill and Governor-General 25
,, in Provinces 41
Arbitration re debts .. . 545
Argument in Governor-General 11. Four Provinces, Acts of 1883-4 145
,, in Liquor Prohibition Case 1044
Armed Forces of Canada vested in the Queen .. . 10
Arms, Carriage of, in time of public danger 146, 1068
,, prohibiting sale of 133, 151, 152, 1068
Arrest of M1’. 1079
Argon, appeal from question 0 , 420
Aspect of each case considered . 151, 17 4
Assemblies, Constitution of Nova Scotia and New Brunswick 41
,, Provincial, and Appropriation, Money, Tax, and other Bills 41
,, Quebec, Constitution of Legislative 38
Assembly, membership and holder of office of emolument 39
3Z2
1092 ' INDEX.
Assembly—cont. PAGE
' ,, of Nova Scot-ia and Contempt _ 1079
,, ' of Quebec and Contempt _ 36
,, summoning of 38
Assent to Bills in Provinces ..'. " 41
Assessment of Parish for Railway Company j 126, 225
Assets, prior claim of Crown to be paid out of 288, 292
,, Quebec and Ontario 532
Assignability of American Copyright 877
Assignment and Bankruptcy differentiated 305
Assignments Act of Ontario, validity of 258, 302
,, for beneﬁt of Creditors, effect of 79
Associations, Local, Act dealing with . 44, 329
,, Powers of, and Provincial rights 46
,, Provincial, Bill creating 42
,, with Dominion powers, but only carrying on business in a Province6 358
4 9
Assurance, Facts in Queen’s Insurance Company v. Parsons 270, 358
Assurer, Tax on .. 127
Asylums... 124
Athabasca, Increase to 554
Attorneys and Appeal to P.C. 420
,, ReliefAct .. 719, 821
Auctioneer License 52, 126
Australia, Right of Appeal from 1009
Authority conferred on License Commissioners 136
,, External and Legislative .. 49
,, for Local Administration . . 1, 142
,, of Governor-General i 8
,, of Governor, his Commission 10
,, of Government of Canada and Provincial Legislatures 1, 294 ,107 9
,, of Lieutenant-Governor 33, 34
,, Paramount .. 74
,, Plenary, bestowed on Provincial Legislatures 142
Author’s Copyright Case in Canada . . 91
Autonomy of each Province . 1, 31, 294
Azoﬂ, Sea of, Appeal and Foreign Jurisdiction Act 1014
B
Bahamas, Right of Appeal from .. 1009
Ballot Paper, Forgery of .. 107
Bank, Insolvent, and Dominion .. 75, 332
,, Notes Taxed by a Municipality 75
,, Trustees appointed by Dominion Act to wind up 7 5, 332
Banks and Insurance Companies, Tax on 68, 113
,, Capital Taxed by Province 68, 75, 113
,, Savings 76
Banking - .. 74
,, as against Civil Rights 301
,, Power to Legislate for, in Dominion ...65, 74
,, Provincial Tax on Capital 75, 113
Bankruptcy and Act to avoid that result . .. 76
,, and Insolvency... . 75, 78, 330
,, Law by both Dominion and Legislature ._., ._., 78, 1042
INDEX. 1093
Bankruptcy—cont. PAGE
,, Law of England examined 79
,, of Senator 15
,, Old Law examined 304
., Provincial Law on same subject 303
Baptist School .. 348
Barbados, Right of Appeal from . 1009
Baronets of Nova Scotia . . 5
Barristers and Appeal to RC. 420
,, and English and French Language .. 393
,, or Advocates, striking oﬁ the Roll in Colonies 414
,, Refusal of Court to allow, to Practise 420
Bars of Ontario, Nova Scotia, and New Brunswick 393
Basis of the Codes 289
Basutoland . 1010
Batonnier, the, and Provincial Bar, Precedence... 35
Beacons and Lighthouses 70
Bechuanaland, British, Appeal from... 1010
,, Protectorate, Appeal from . 1010
Behring Sea Award Act 910
,, ,, Tribunal, argument before 200
Beneﬁcial Interest of the Crown in all Lands within Provincial Boundaries 98
Bengal, Right of Appeal from 1010
Benin Rivers, Appeal from 1014
Berbice ,, ,, 1010
Bermuda, Right of Appeal from . 1010
Berne Convention Copyright Act 868
Bible, the, and Schools 351, 354-
Bill, Copy of, to be sent to England 26
,, Reserved for Assent, Limit of Time for Disallowance 26
,, Altering Limits of Electoral Divisions, Requisites 38
,, Disallowance by Lieutenant-Governor 41
,, Lieutenant-Governor reserving Consent to . . 42
,, Money, to originate in H. of C. 25
,, not assented to .. 42
,, of Appropriation, Money Votes, in the Provinces 41
,, of Exchange and Promissory Notes 76
,, of Provinces and Dissent by Governor-General 42
,, Old Right of Governor Refusing Assent to 579
,, Royal Assent to _ 26
Bombay, Right of Appeal from 1010
,, Suspension of Bar, Appeal 420
Bonny, Appeal from . 1014
Book, Meaning of, in Copyright Act 347
Books, English Reprint of, in Canada 91
,, how to obtain Copyright in America 875
,, Importing into U.K. 848
Boom in River, and Local Undertaking 66
Borneo, Appeal from .. . . 1010
BOI‘I‘OWiIIg Money 69, 123
Boundaries between Canada and New Brunswick, Old Act 707, 718
,, of British Columbia, Old Act 733
,, of Colonies, Alteration of... . _ 1002
Boyd, C., on Provincial Liquor Question 158
Brass, Appeal from i 1014
Breeding Fish, Protection of... ..- 73
Brewers’ Licenses ... ...
52,53,127
1‘094 ' INDEX.
Brewers’ Licenses—cont. PAGE
,, ,, in US. 160
,, ,, in Quebec 66
,, selling as retailers .. 158, 208.
,, Taxed 159
British and American Constitutions 168
,, Bechuanaland, Appeal from - 1010
,, Central Africa, Appeal from - 1010
,, Columbia Adjudication 323
a: ,, Appeal from 1010
,, ,, Barristers and Solicitors 721
,, ,, Boundaries, Old Act .. 733
,, ,, Government Acts 722-786
,, ,, History of... 5
,, ,, Judicature... 403
,, Guiana, Right of Appeal from . 1010
,, Honduras, Appeal from . 1011
,, North America Acts... . . 553
,, ,, ,, Act, amendments to 745
,, ,, Borneo, Appeal from . 1010
,, Parliament, Governor-General and Lieutenant-Governor, relative
position discussed 28
,, Possession, Provisional Warrant to arrest Fugitive Oﬁender 830
,, Ship, owner of 927
,, Subject and Counterclaim in Consular Court . 1031
,, Subjects, power over 417
,, Territory and alien 328
Brougham, Lord, opinion on Appeals... 408
Brunei, Appeal from . . 1011
Brussa, Appeal from . . 1013
Building Societies .. 234, 243
,, ,, Acts, Provincial and Dominion Company 47
Burden, Indians’ title to Canadian Land a mere... 99
,, on Dominion . 209
,, on Salary of Dominion Oﬂ‘icer imposed by Provinces 70
,, when clearly local, on Dominion to show not 85, 330
Burgas, Right of Appeal from . 1013
Burmah, Right of Appeal from . 1011
Burton, J. A., on Copyright . 92
,, ,, on Delegation of Powers 327
,, ,, on sub-sec. 8, sec. 92 210
Business, Provinces can legislate to prevent fraud in 106
Butter, and Dominion Legislation 323
By-La,w imposing License Tax on sale of meat 161
,, of Municipality, force 0 . 1075
,, Repeal of 126
,, requiring Power to Enforce .. . 142
,, Validity of, in question of Special Leave to Appeal 463
C
Cairns’; Lord, on Applications for Special Leave to Appeal 431, 441
,,, " on Prerogative of Crown, followed 83
Calabar', Old, Appeal from' ' . 1014
Canada, Appeal ‘from ’ ' 1011
' ,, and English Criminal Law” 4
and Liability foi'iProvincial Debts 526
1’
*mnnx. 1095
Canada-com. PAGE '
,, Company Old Acts ' ~ ' 653, 713
,, Federal Government of, meaning of 1
,, Stock, Transfer of, and Stamp Duty 812
,, Temperance Act, scheme of 1044
,, ,, and Ontario Act in the same Province 161, 1042
,, ,, and Provincial Act 103, 104, 129
,, ,, 1878, not a Fiscal Law... ' 32
,, ,. 1886, scheme of 1044, 1064
Canadian Act sanctioned by Imperial Act .. . 93
,, Census, when tobetaken ‘ 7
,, Copyright Act 857
,, ,, Agreement with‘the Government 92
,, ,, English Authors’ case 91
,, ,, Imperial Acts 846 et seq.
,, Extradition Act 542
,, H. C. Members, Number of 16
,, Judges, Listof 396
,, Liquor Acts 220
,, Naturalization .. 770
,, Naturalization Act... . . 764
,, PaciﬁcRailway .. 546
,, Paciﬁc Railway and Mines and Minerals .. . 123, 519, 520
,, Parliament and Exclusive Powers over Temperance 156, 1042
,, Rebellion, Lower 4
,, Union, Act of 1
Cape of Good Hope, Right of Appeal from . . 1011
Carnarvon, Earl, on School Question of New Brunswick . .. , . .. 336
,, on Governor-General acting on advice of Privy Council .. 8, 9
Carrying of Arms, Prohibition of ...~ . .. 133
Cases, Printing. See note 1041
Catholics and Protestants, old privileges 558
Cattle and Contagious Disease, Right to legislate o .. . 133
Ceding Territory for Settlement, meaning of .. . 99
Census and Statistics .. . 69
,, of Canada, when to be taken 7
Central Authority, none created 31, 293
,, Government of Canada, meaning of ...1, 293
,, Power and Municipal Institutions 150
Certiﬁcates of Competency of Master of Ship, &c., granted in the Colonies 935
Certiﬁed Copy of Record to be sent to RC. . . . 1008
Certiorari Appeal . 122, 426
,, or Prohibition Appeals 405
,, Writ, Chinese License 122, 426
Cession of Land for Settlement, &c., meaning of... 99
Ceylon, Right of Appeal from ' _ 1011
Character of Legislation, true motive of .. 134
,, in which Lieutenant-Governor reserves Bill . .. 42
Charities 124
Charter of the Canad 397, 566
~ ,, of Fort William (Bengal) 409, 1010
Charters and Appeals. See 1009 et seq.
,, of Bengal, Bombay, and Madras .. 1010
Cheege'and Supply of Milk, Laws of Dominion and Provinces 104, 105
Chief Executor, Oﬁicer, or Administrator and Lieutenant-Governor 30
1,, Oﬁcer of Canada ... 7
Children, Custody of, Special Leave where concerned 435
1096 ‘INDEX.
PAGE
China, Appeal from... 1011
Chinese and Indians Electoral Franchise 100
,, I Immigration Restriction‘ 63
,, Taxation 122
Christopher, Sit, Right of Appeal from 1013
Civil Action, Exemption from, of Members of Parliament-
1088
,, and Criminal Codes may be altered 4
,, ‘Matters in the Courts 308
,, Code of Procedure, Arts. 605, 607, 611, 1989, 1994, 2008, 2032, 2086 284, 397
n ,, Art. 998... ' 47
a’ ,, of Procedure, object of 286
,, Courts, old, establishment of 581
,, List of H.M. in Canada 96, 97
,, Rights and Property 257
,, ,, in the Provinces... 257
,, ,, meaning of, examined 62, 133, 262
,, Servants’ Salary in Canada 70
Claim of Crown '0. Creditor 284, 294
Clashing of Powers discussed 199
- ,, of Provincial Parliament and General Parliament 51
Clergy Lands, Final Act 694
,, ,, Sale of .. . 653
,, of Quebec and accustomed Dues 559
,, Reserves old Act and Proceeds 710
,, ,, History of 4
Coasting Trade, in British Possession and Merchant Shipping Act 1001
,, ,, Old Act 762
Code of Civil Procedure, Arts. 1124, 1178 397, 434
,, of Procedure, Art. 1178 397, 421
,, ofQuebec .. 244
Codes, Conﬂict between 291
,, ,, and Special Leave to Appeal . . 428
(lo-existing Powers 50, 120
Coinage 74
Coleridge, Sir J. T. on right of RC. in all cases Criminal and Civil to
allow Appeal 418
Collection of Consolidated Revenue Fund, Expenses of Collection 485
Colonial Acts and interference by Imperial Parliament 51
,, ,, ratiﬁed by Queen, force of 410
,, Advocates and Appeal to RC... 420
,, Appeals and Prerogative 411, 1009
,, ,, Special Court contemplated 405
,, Building and Investment Association '0. Att.-Gen. of Quebec 234, 258
,, Court Sentences 820
,, Doctors practising in England 884
,, Governor’s Commission .. . 10
,, ,, Pensions 801, 887
,, Laws . .. . . . . 409
,, ,, Validity of 738
,, Legislature and exclusive and ancient Powers of H. C. England 12
,, ,, Deﬁnition of 741
,, ,, and Rights of English Authors 94
,, Lighthouses 713
,, Mints, old Act 743
,, Possession and Prerogative of Queen w 31
-' Colonies, Admission of New, into Union 546
INDEX.
1097
Colonist, Appeal by, to British Parliament
Coming within sec. 91, what to prove
Commander in Chief, the Queen
Commerce and Navigation ,, Regulation of, in US. ,, Regulation of, \Varehouse receipts
,, Retail Sales
,4, and Trade considered
and Incorporation of Companies
Regulation
$7 ,7
H ”
,, with Indian Tribes Commercial Corporations and Provincial Taxation
,, Law in Canada... ,, System of U.S., what it has been employed for
Commission Governor’s Authority Commissioner, Appointment of Commissioners of the RC. and Instructions to Governors
Commissions of Inquiry appointed by Quebec Assembly ,, of Oyer and Terminer, and the Prerogative
Committal for Contempt, Power of Parliament
Committee, Judicial, and Election Petitions, hearing
Committees appointed by Quebec Legislature Common Defence of the Empire, Contribution from Canada
,, Interest of each Province
,, School Acts of New Brunswick... ..
,, ,, ,, Epitome of
,, Socage Commons of Canada, 110w summoned ,, Canada, Act to put an end to certain Proceeding
Community of Goods, Husband and Wife Companies, Incorporation of, and Trade and Commerce ,, by Provinces
with Provincial Objects .
H
H
Company, Canadian Act giving Power to summarily dispose of Right to Shares
,, Incorporated by Dominion, Acting in one Province only ,, Wound up in Canada, Incorporated by Imperial Statute Comparison of sees. 17 and 58 Competency and Validity of Dominion Act ,, of Parliament to Legislate on Trial of Election Petitions
,, of Provinces, exclusive Powers
Composition of Legislative Council of Quebec Comntables, meaning of Concealment of Facts on Appeal
Conception Bay, Right to -
Concurrent Judgments on Facts and Appeal
,, Legislation as to Criminal Laws
,, Powers in Dominion and Provinces
,, ,, in Provinces as to Taxation...
Conditional Prohibition Conditions, Appeal allowed on Confederation and Opinion of Statesme
,, Anti, Ontario... Effect on connection between Crown and Provinces...
Laws before ,, of Canada and U.S. compared
to be viewed as a Treaty
PAGE
29
43
10
591
58, 160
75, 295
166
151
2
51
62
54
181
62
10
391
. 1006
36
33
12
40,311
36
590, 591
1
334
342
561
17, 28
91
257
2
45, 234
18,20
44,
438,439
2
91
45
87
11
19
1042
36
289
430
74
106, 156
165, 166, 389
426, 427, 429, 434, 435,
53
156
451
168
55
31
72
60,119,173
Oil
168
1098 INDEX.
Conﬂict between Provincial and Dominion interests ,, of Laws of Quebec and other Provinces
,, of Legislation
,, of Laws or Codes
,, of Laws
,, to prevent, Act took a certain form Congress and States compared with Dominion and Provinces
,, Power of US. ,, A ,, as against Powers of States
Connection between Crown and Provinces
Conquest of Quebec Consents requisite to Provincial Railway crossing a Dominion Railway
Conservation of Fish, Inland and Sea, by Dominion Parliament
Consolidated Fund of Canada... . . Consolidation of Quebec and Ontario... Constantinople, Appeal from. See Turkey Constituted Authority for Local Administration .. .
Constitution of Canada compared with Constitution of the U.K. ,, ,, similar to U.K. ,, of a Province, power to alter
,, of Offence, keeping open and selling
,, of Legislative Assembly...
,, of Parliament of Canada .. ,, of States of US. and Provinces of Canada
,, Power to Amend that of Provinces
,, Provincial, meaning of, examined
_., Suspended
Constitutional Charter of the Canadas
,, Functions and Dominion Powers
,, Law ,, ,, of US. and Canada just the reverse
,, Questions and Appeals to RC. ,, Question lapsing
,, Right of Lieutenant-Governor to dismiss Minister Construction of an Imperial Act, Special Leave granted ,, of ss. 91, 92, Principle of, pointed out in Parsons’ Case
Consular Court and Treaty Rights .
,, Courts, Appeal from Contempt, Committing for, Power of Local Parliament
,, of Court, Appeal to RC. .
,, of Parliament
,, ,, Quebec Continuance of Legislatures of Nova Scotia and New Brunswick Contracts, all Legislation as to, not in the Dominion
Contrast between English H.C. and Quebec Assembly .
Controversies between Dominion and Provinces, Appeal to RC.
Controverted Election Petitions and Dominion Convention as to Naturalization with US. . Conveyance of Offender on High Seas to British Possession
Conviction in Hodge’s Case .. Co..ordj_na,te Authority of Dominion and Provinces
Copies of Printed Cases to be lodged. See note
Copyright ,-, International . . . - . . . ' . . . ‘ . . .
0 Burton, J., on ,_
,, English, extended to every part .of H.M. Possessions
PAGE
42
31, 293
48, 1042
000 428
46, 1042
54
119, 173
69
61
31
4
233
73
483
4
1013
. 1,27
27
l, 294
100, 1086
125
38
ll
61
111
27
4
566
1
1042
61, 118
405
308
29
452
131
1031
. 1011
. 1079
414, 420
36, 1079
400,401
45,308
802
994
136
31
1041
91
... 868
m 92
m 94
INDEX I
1099
—cont.
in America
in Canada, Fees Interim
Copyright
!1
,, Old Acts
Corea, Appeal from... Corporation, Ontario and Quebec Taxes
and Direct Taxation ,, Commercial, and Provincial Taxation
Corrupt Practices and hearing Election Petitions
Costs, Appealable Value, Costs not to be added ,_~ ,, Interest on Damages may be
Deposit, Appeal becoming abortive from not lodging
Irregular Appeal . .
Security for, ordered by PC. ..
,, when mis-statement, concealment, or inaccuracy in
Council, Old, for Quebec
,, to aid and advise Councillor of Quebec, Vacancy in place of
,, ,, Qualiﬁcations of
Counsel, Queen’s, Appointment of
selection of Judges from each Bar
,, to argue Special Reference Cases
Court below and PC. Appeal... .. ... Created without the incidence of Appeal to the Queen
Established in Canada by Imperial Authority, Dominion P
conferring Jurisdiction on Martial in the Colonies
of Appeal, Canada
of Record, New, what necessary
,, Parliament as
Supreme, Established ,, to Decide Constitutional Questions
Courts, Civil and Criminal, Old Dominion Parliament and Uniformity of Laws
Generally in Canada New Jurisdiction Committed to
of Admiralty in the Colonies Organization of
,, Prize, Establishment 0
Creating Municipalities
Credit, Power of Province to Borrow
Creditor, Crown and Provincial Bankruptcy Law
Provincial Government as
,, Right of ..
Crime and Power of Dominion
Crimes Committed at Sea
~ List of, in Extradition Act-
Postponement of Execution of C
,, and Judicial Committee
Jurisdiction in the Province...
Law
H
’’
9,
7,
H
,9
facts
H
to Create. . .
3’
Money 011
7,
i,
onvict Appellant ..
Criminal Case,
7!
and insult to House of Assembly
and Liquor Laws
and Ontario Licenses
H
II. .0.
9’
,9
PAGE
875
867
860
846, 872, 873
1011
122
116
54, 113
40, 311
424
424
462
423
122
430
562
8
37
37
35
393
401
425
311
arliament
68
826
394
. 21
. 1079
3, 394
406
537
388
395 et seq
396
20
888
308
926
142
123
284, 294
302
31, 294
78
105
778
782
416
34
308
.. =1 102
1079, 1087
161
104
I‘.
1100 ,INDEX.
Criminal Law—cont.
and Power of Dominion
’’ 7’
,, , and Sale of Gunpowder
,, ,, and Trial of Prisoners in Canada
,, ,, by Dominion and Provinces
in Canada and England
in sec. 91 means General Public Criminal Law
of England in Canada... of England to be in force, old Act .
sec. 15. s. 92 ,, Suit, Appeal to P.C., Lord Brougham
,, Trial in Canada, and Dom. Act
Crofters Loan to British Columbia Cross Appeal, allowed to be presented Crown and Dominion Right to Fish in Harbours
,, and Liability for seizing R-ailwa
,. Cases in Canada Preference of, in Bankruptcy
and Preference Payment . .. and Provinces, Confederation did not sever Connection
can Recall any Governor who fails in his duty
,, Lands in New Brunswick Crown’s Prerogative Power to hear Election Petition
Prerogative and Commissions of Oyer and Terminer
,, Prerogative Examined Currency". n. .“
Custom Duty and Direct Taxation
Customs and Dominion Excise ..
,, and Vice-Admiralty Courts
Cyprus, Appeal from
,2
I)
Damage, Quantum of, Judicial Committee may ﬁx
_ Dangerous Establishments, power in Province to Regulate by Law
,, to Public, example Dardanelles, Appeal from, through Consular Court
Debt, Action of, against Governor .
,, ofNew Brunswick
,, of Nova Scotia
,, of Ontario and Quebec
,, Public, and Property ..
,, of Canada ...
,, of Provinces and Assets
,, ,, Interest on Debtor and Assignment for Beneﬁt of Creditor .. .
Decision of the House of Lords on a Colonial Question Declaration of Union .
,, of Qualiﬁcation of Senator
Defence of the Country, Dominion’s Right to take Land
Deﬁnition, Mill’s, Examined. . . . .
a of Privileges, Powers, and Immunities of Senate, and Members
of Parliament of Canada and Provincial Parliaments
Delegates, High Court of .., .,.
,,.~ _ Provincial Legislaturesnot _ ...
PAGE
62, 102
104
547
33, 1087
12
106
4
561
Provincial, Canadian Temperance Act not within sub-
134
409
45
906
452
73
496
395
288,292
31,292
31
29
72
308
.H 33
309,409
74
116
535
69
. 1011
440,497
104
133
. 1014
10
.u 533
.H 533
.u 532
.u 51
483
.u 526
.H 485
79, 302
.u 346
.H j 3
.u 13
.u .533
.u 116
11, 1079
1005
Oil
INDEX. 1101
PAGE
Delegation of Canadian Parliament’s Powers 103, 131, 142, 1042
Denominational Rights and Education 357
,, Schools 332
,, ,, in Canada 341
,, ,, in Manitoba 374
,, ,, in New Brunswick 338
Depositor, Crown as, Payment of 31, 283, 292
Deputy Governor, Appointment of 9
,, ,, General, constituting Courts 34
,, ,, ,, and Governor-General, Exercise of Power always
can be by the latter 10
,, Speaker of Parliament of Canada .. 1003
,, Lieutenant-Governor . . . . .. ... .. . .. . 35
Derivation of Authority of Provincial Legislatures 1
,, of Governor's Authority 10
Derogation from Rights require express words... 74
Desertion and Divorce 250
Destroying Municipalities 142
Destruction of Fish, undue 73
Detention of Ship under Behring Sea Award 925
Diplomas, Medical, Colonial... .. 884
Direct and Indirect Taxation... 67
,, Tax, meaning of 114
,, ,, Person ﬁrst Charged with it to pay it 127, 129
,, Taxation .. 113,119
,, ,, Dominion and Provinces 48
,, ,, and Corporations ‘ 116
,, ,, in both Dominion and Provinces . . 53
Directions for Printing Appeal Cases. See note 1041
Disallowance of Acts, Ritchie, C.J., on the Power of 53
,, of Bills 41
,, of Provincial Acts 8, 9, 26
,, ,, ,, should be exercised with caution 51
Disbarring Advocate, Appeal 420
Discovery, Patents of Invention and 88
Discretion of Governor-General in Assent to Bills 26
Discrimination in imposition of Taxes 122
Discussion as to Powers of Lieutenant-Governor and Governor-General 9
,, as to Qualiﬁcation or Vacancy to be heard by Senate 16
Dismissal of Lieutenant-Governor by Governor-General 28, 29
,, of Ministry by Lieutenant-Governor... 28
Disqualiﬁcation of Senator 15
Dissentient Schools 333
Distinction between Dominion and Provincial Powers .. . 72
,, ,, Limitation and Prohibition 149
,, ,, Property in, and Regulation of 72
Distressed Seamen, Relief of . 942
Distribution of Powers between Provinces and Dominion 1, 292
,, of Legislative Powers 43
District not prepared to absolutely Prohibit 149, 1042
Division of Canada... 3
Divorce Appeals, Leave to Appeal 416
,, from Husband for Accusation of a Capital Crime 250
,, in Canada... 101
in Manitoba 250
in qqo '1- III It! '0! II!
1102
INDEX.
Divorce—90m-
,, in North-West Territories
,, in Nova Scotia
,, in Prince Edward Island-
,, in Quebec
,, Special Leave Docks, Loan to Construct, Act Doctors, English, Practising in Canada .
Documents, use of Old Names of Upper and Lower Canada in
Doherty, J., on Prohibiting Liquor Laws Doleance Petitions...
Domicile for Divorce, &c.
Dominica, Right of Appeal from
Dominion Act, additions made in London
and Provincial Act to give effect to it
,, ,, ,, ,, Adaptation authorising Company to Purchase Island
’, Y,
Disallowance of
for one Province
for two Provinces, Alteration of...
making Decisions in Q.B. Quebec ﬁnal
Object of
of Union
Preliminary
Provisions as to Queen...
Validity of
Crown Lands. .
General Power . . .
Incorporation of Companies
Insolvent Bank
Lieutenant-Governor
Legislation as to Perjury
,, ,, ,, on Marriage Licenses
Naturalization . . . . . .
Penalties and F orfeitures Legislation
Postal Service, Railways, National Defences
Provinces and Raising Money ,, ,, ,, Distribution of all Powers between
Provincial Acts
Bankruptcy Law Double Legislation Laws as to Frauds in supplying Milk
Powers under secs. 13-92 .
,, Rights Remedial Education Acts
Sale of Gunpowder
,, _., Tax in Provinces . . Bank Notes, Taxed by a Municipality
Bankruptcy Act overriding Provincial
Companies and Provincial Laws
candeal generally with the whole matter
can declare anything a Crime ,. Company, Validity of, and Questions to be raised
enacting that Decrees of Courts should be ﬁnal
,, Excluded from Provincial Powers
253, 257, 447
conferring Jurisdiction on Imperial Vice-Admiralty Court
Power of making Criminal Laws compared
PAGE
... 250
250
252
250
434
743
420
544
204
408
. 1011
133
35
124
307
394
9
H. 242
273,323
.H 31
31,292
1
2
2
300
97
2
2
332
42
107
253
770
107
433
43
43
253
302
50
103
43
33
494
334
104
155
75
78
235
147
105
43
303
152
INDEX.
1103
Dominion—cont.
PAGE
Exclusive Authority of 44
extending Jurisdiction of a Court 312
ﬁrst Occupying the Ground 147
ﬁrst Provinces forming .. . 3
Government and Provincial Acts of Prohibition 58, 1042
House of Commons, Members of 16
Hudson Bay Territory added 3
in 1895 .. .. 3
Insolvency Law . 78
Laws overriding Provincial Laws . 1042
Law for one Province . 1042
Law must be General Law 165, 1042
Legislation and Fish . 73
,, and all Contracts re Bills of Exchange 76
,, and Property 73
,, and Provincial Tax on Capital of Banks 75
,, as compared with Provincial 131, 132
,, overlapping 210
,, Value of, in Interpreting Act of 1867 2
,, and Fines . 107
Licensing Acts, 1883—4 145, 158
License for Carrying Gun 146
Parliament and Mining Companies in two Provinces 111
,, and Power to Alter its Constitution 111
,, and use of French and English Language 542
,, Legislation and Property 99
passing Laws overriding and inconsistent with Provincial Laws 148, 1042
Phrase “ Property of” or “ belong to ” explained 97
Power for Constitutional Functions 1
,, to Enact General Nuisance Law 104
,, to Prohibit Sale of Intoxicating Liquors 161
not to Absorb Provincial Powers 48
Object of 15o
Objects, how accomplished 1, 292
Officers and Taxation 7o
Ofﬁcials and Provincial Tax 123
passing Law and Local Association 45
Parliament Act putting an end to all Proceedings in certain Cases 91
,, Address re Imperial Legislation 336
,, and Insolvent Bank 75
,, and Queen’s Prerogative 82
,, and Uniformity of Laws 388
,, and Warehouse Receipts 75, 296
,, and Western Provinces Fishing 74
,, has full Control over the Election of Membe 18, 19
,, Imposing new Duties on Existing Provincial Courts 20
,, Paramount 74, 301
,, Powers of . 11, 322
,, no Exclusive Legislation over Temperance . .. 156
Penal Laws 322
and Provinces and Co-ordinate Authority 31
Railways and Provincial Railways - 233
Repeal of Provincial Act .. 1043, 1070
Supreme Court Act Reviewed 19
to decide how far a Trade may be Suppressed 193
Trenching on- Matters assigned to Provinces
44, 1043
1104 INDEX.
Dominion—cont. PAGE
,, Winding-up Act Examined... 321
Donations before Birth of Children 257
Double Legislation 50
,, Licenses 221
,, ,, Provision for 146
,, Offences .. 161
Doubt Entertained of Soundness of Decision Appealed from, and Special
Leave 22
Drugs, Sale of, considered . 133
Dues for Colonial Lighthouses 992
,, Lumber, New Brunswick 535
Duﬁ‘erin, Lord, on Parliaments 30
Duration of House of Commons 23
,, of Legislative Assembly 39
Duties and Revenues 483, 484
,, Levied in Newfoundland, Old Act 654
,, New, Imposed on Existing Courts by Dominion Parliament. 20
Duty of Executive and Bills 42
,, of Governor General and Assent to Bills 26
,, ,, ,, as Head of a Constitutional State 30
,, ,, ,, in all Cases to Protect Imperial Policy 42
,, ofJudges 390
,, of Judicial Committee on Advising Special Leave . 443
to Grant Leave if a Doubt of Soundness of the
” ,Decision Appealed from 22
,, of Lower'Court on Leave to Appeal being Granted 1008
,, of Ministry 42
,, of Minister, when duties are Executive merely 89
E
Early Cases in PC. 1006
East Florida, Appeal from 95
,, Indies, Right of Appeal from. See Bengal 1010
Edicts, French, of 1743, Examined 246
Education 332
,, and Sectarian majority 363, 364
,, Manitoba School cases 371-376
,, in Prince Edward Island 338
,, Laws prior to Union . ,, 365
,, Questions and Appeal 405
Eﬁ‘ect of Canadian Temperance Act 130
Egypt, Appeal from . . . . 1011
Election and Corrupt Practices, and Hearing in PC. 4o
,, Courts 312 et seq.
,, First, of Ontario, Quebec, and Nova Scotia Assemblies 22, 41
,, ofHoldersofOﬁice... 38
,, of Speaker of Legislative Assembly, and of H .0. Canada on same lines 40
,, Petitions and Leave to Appeal 45, 314, 414, 449
,, ,, and Prerogative of the Crown 40, 314, 408, 449
Elective Legislature constituted l6
Electoral District of New Brunswick 18
,, Divisions... 548
,, Law to apply, until altered by Dominion, to Election of MP. or M.H.C. 18
,, Limits, Bill altering, requisites 39
Eleemosynary Establishments ... I ... 124
INDEX. 1105
PAGE
Ellice Island 1014
Emolument, Office of, and Membership of Assembly 38
Empire, Unity of, List 4
Encroachment by Dominion 1043
Enforcing Licence where no Penalty 127
,, Temperance Act, 2nd Part 130
English and Foreign Languages 542
,, Bankruptcy Acts Examined .. . 79, 305
,, Companies in Canada, Winding up 87
,, Copyright in Canada 91
,, Criminal Law obtains in Canada 4
,, Liquidation in Canada 88
Enlistment Act, Foreign 789
Enos, Appeal from 1014
Enumerated Powers, Provinces 109
Error, Court of (Ontario) 400
Esoheats... 98
' ,, and sec. 102 484
,, and Provincial Rights 499, 513
Establishment of New Province 3
,, of Supreme Court (C) 394
Evidence, Dominion Act 50
,, same in two Actions, Appeal .. 457
Evil Existing in Society, can be inquired into by Quebec Legislature 36
,, growing into National Danger 1044
Examination of Powers by Strong, C.J. 165
,, of Witnesses on Oath by Assembly 36
Exemption of M.P.’s from Civil Actions for Votes 1088
Excepted Classes Clause 108
Exception from Legislation of House of Commons 43
Exchequer Court, Canada 395
Excise and Customs are Indirect Taxes 115
,, and Provincial Taxes 57
,, Laws ... 535
,, ,, and Provincial Legislation 54
Exclusion of Parliament of Canada 72
Exclusive and Ancient Powers of H.C. of England not in Provincial Parliaments 12
,, Authority of Parliament, meaning of 155
,, Legislative Authority of Parliament Examined 44
,, Legislative Authority of Dominion 56
,, Powers of Provincial Legislatures .. . 44, 109
“ Exclusively,” Word Examined 57, 199, 1043
Execution Pending Appeal . . 438
Executive Authority of Quebec, Ontario, Nova Scotia, and New Brunswick 27 -31
,, ,, possessed by Lieutenant-Governors... 9
,, Council... 34
,, ,, and holding office of Emolument ...38, 39
,, ,, of Quebec ... 30
,, ,, of Ontario 30
,, Duty, gives no Authority to Prohibit 89
,, Government, Seats of ..-. 35
,, Oﬂicers, Duties and Powers of 543
,, Power 7
,, Power of each Province 27
Exhibits in Court, Tax on 32
Existing Courts and New Duties 20
S 2340. 41 A
1106 INDEX.
Existing Law Expatriation of the French in Arcadia
,, of Senator . . _ Expenses of Collecting Consolidated Revenue Fund
Explosive Substances Sale considered Export Duty on Lumber, and Treaty with US. Exportation from Provinces Express Words required to take away Queen’s Prerogative
“ Extend beyond the limits of the Province," Examined
Extent of Exclusive Authority of Parliament
External Authority putting Law in force
Extinction of a Trade, Effect of
Extra Tax imposed for Delay
Extradition of Criminals
B‘
Facts, and appealing to RC. ,, in Hodge’s Case
,, in Russell’s Case
,, mis-lstatements on appeal
“ Fair Trial,” Earl Selborne on Falkland Islands, Right of Appeal from
False Statement, Punishment for . Federal Authority and Municipal Institutions ,, Government described
meaning of i ,, ,, and Provincial Judicature ,, Parliament and Divorce, Jurisdiction over
Power and Liquor Traﬁ‘ic
,, . Purposes and Navigation
,, Unit-y, Act of .
Fees for Canadian Copyright...
,, in Colonial Admiralty Courts
Felonies, Appeal in... Felony of Senator Ferries -
v ‘ n '
Fief and Seignory Lands may be charged to Common Socage tenure
Field not occupied, phrase
Fiji, Right of Appeal from Filling Vacancy in place of Councillor of Quebec
Final decision as to Patents in Canada... ,, is an apt word to exclude certain appeals ,, Judgments, Appeal ..
Finality of RC. Judgments Finance Act, Exception of Property ,, Provincial Assembly Money Bills Fine and Imprisonment, where given to Provincial Parliament
,, and Dominion Legislation
,, for breach of Liquor Laws
Filling a Barrister, Appeal
,, Judges
Fire Insurance Companies
First Parliament of Dominion
,, , Provinces forming Dominion
PAGE
537
5
15
485
133
535,808
535
82
227
44
49
194
126
774
425, 438
136
129
430
47
.H 1011
107
150
31
1
323
36, 250
197
66
1
866
899
409
15
74
624,650
106
. 1011
37
89
82
421
12,468
926
41
155
107,324
102
414
.. 394
55, 259
u 3
2
,, step to be taken in deciding subject-matter falls within sub-sections of 92 262
INDEX.
1107
Fiscal Law, Canadian Temperance Act not
Fish, Close Time Legislation in Dominion
I’
,7
in Public Harbours,
on the Union
Protection of
Fisher, J ., on Schools Question of New Brunswick
Fisheries and Provincial Legislation
7)
3’
!’
Inland
Police Regulations...
Trespass
Fishing by Indians, Regulation of
Treaty with US. Florida, East and West, in Canada Old Provinces
Force of Bills reserved for Royal Assent
Foreign Companies in Canada, winding up
Country and Printing English Books . .
,, and Treaties Corporations and Provincial Laws
,,
,2
7,
9!
,’
Enlistment Act
Jurisdiction Act
’’
Piracy of Ameri
.0.
Actions, Limitation of
Amends, Tender of
China and Japan, coast of
Costs
Death Sentences
... con .0. out ‘
Evidence may be tendered by accused
Examination of Witnesses
Extent of Jurisdiction, ascertaining
Foreign Law and. British Court
Indian Princes and subjects thereof
Jurisdiction over Ships in Eastern Seas Jurisdiction in a Foreign Country
Limitation of Actions. . .
Parliament and O. in C.
Power to send Person for Trial
Protection of Persons acting under Act
Punishment of Persons convicted
Repealed Acts
Repugnant O. in C.
Revoking O. in C.
Sea Limit, China and Japan
Ships in Eastern Seas ,_
Trial of Oﬂ‘ences committed outside H.M. Dominions
Trial of Person accused Validity of Acts done under 0. in C.
Warrant to Arrest Witnesses, Examining of
can Copyright
Protection to Copyrighted Book
Subject or Citizen as Senator Foreshore and Dominion Legislation
Property in
Forgery and Provincial Legislation
5:
Case, Appeal in
Forms, Extradition
Fort
St. George
PAGE
132
73
73
357
.u 72
... 72
71
73
74
100,916
805
96
26
87
91
541
244
789
.. 1031
“ 1036
.n 1036
1037
.H 1037
.H 1034
.H 1037
H. 1033
.H 1033
.n 1032
n. 1034
.H 1037
.H 1037
.N 1031
.n 1036
.n 1035
.H 1033
.n 1036
.H 1034
.n 1038
.n 1035
.n 1035
. 1037
1037
1034
.n 1033
.u 1035
.n 1033
. 1033
878
869
15
306
.n 498
107
419
784
. 1010
41A 2
1108 INDEX.
PAGE
Fort \Villiam . 1010
Fortiﬁcationsand Provincial Property 533
,, in Colonies 824
,, Loan for . 787
Franchise of Indians and Chinese 100
Franklin, New Provincial District 554
Fraud, Acts in Canada to prevent . 304
Frederickton Roman Catholic School 348
Free Schools in Nova Scotia 368
,, The New Brunswick 348
Freedom of Produce Travelling from Province to Province 535
Freight, Responsibility for 977
French and English Languages used in Dom. H. C. ...4, 542
,, Edicts 561
,, Law Examined . 289
,, ,, in Privy Council 425
,, ,, in Quebec and Preference Payments to the Crown ...31, 32, 288, 292
,, ,, prevails in Quebec 4
,, Revolution, Claims by British Subjects and RC. 412
,, Tax on Trades .. 119
Friendly Islands, Appeal from .. . 1014
Fugitive Criminals in British Possessions 7 78
,, Offenders... 826
Funds of Ontario Coporation taxed in Quebec 122
Fur Trade Act 596
G
Gallipoli, Appeal from 1014
Gambia, Right of Appeal from 1011
,, Territories, Appeal from o 1011
General Authority of Parliament 62
,, Court of Appeal, Canada 394
,, Law by Dominion must not be limited to any particular Province 168
,, Power given to Dominion 2
,, ,, overriding the Provincial 48
,, Purpose of Act by Dominion 157
,, Scheme of RNA. Act 1043, 1070
Generality of Terms not to be restricted 43
Generally all matters of a Local or Private Nature discussed 44, 85
,, matters merely Local, &c. 323
Ghio, Appeal from 1014
Gibraltar, Right of Appeal from 1011
Gilberts Island, Appeal from _ 1014
Gold Coast, Right of Appeal from 1011
Gold Mines in Provinces 519, 520, 521
Government, Executive, Seats of 35
,, Federal, meaning 1
,, Lower Canada, Temporary Act of 1837 654, 659
,, Ofﬁce and Membership of Assembl 38
Quebec, ﬁrst Act 556
,, Representative, Earl Grey on 28
,, Seat of 11
,, to be carried on in name of the Queen ., 7
INDEX.
1109
PAGE
Governor and Council, acting judicially, cannot be sued 10
,, ,, ,, Appeal to . 333, 377, 384
,, and Sovereign Power 10
,, Colonial, and English Sovereign Compared 28
,, in Council, meaning of 9
,, Lieutenant, Appointment of... 27
,, may be sued in this Country 10
,, of British Colony and British Parliament 2.8
,, of Colony suing therein 10
,, old Right of refusing consent to Bills 579
,, General bound to take Advice of Ministers in Office 8, 9
,, ,, and Assent to Bills 26
,, ,, and Appointment of Deputy 9
,, ,, and Deputy of Lieutenant-Governor 35
,, ,, and Lieutenant-Governor’s Authority, Antiquity of the latter 9
,, ,, and Loyal Assistance by his Counsels to his Ministers 30
,, ,, and New Officers 541
,, ,, and Oﬂice of Lieutenant-Governor 28
,, ,, and Provincial Acts... 51
,, ,, and Provincial Law... . '334
,, ,, and Unconstitutional Measures 43
,, ,, appointed by the Crown . 7
,, ,, appointing Queen’s Counsel 7
,, ,, Deputy, and Commissions of Oyer and Terminer... 34
,, ,, dissent to Provincial Bills and Imperial Instructions 42
,, ,, has general supervision over acts of Lieutenant-Governor 28
,, ,, may summon additional Senators . 14
n ,, must ﬁrst recommend appropriation of Public Revenue
before vote passed 25
,, ,, paid by Canada 485
,, ,, Power, Authority, and Function of 8
,, ,, Power in Crown to recall 29
,, ,, Power to dissolve 23
,, ,, Salary of 485
,, ,, should have no Political Friends .. 30
,, ,, Summons Senators 14
,, ,, to be guided by Advice of Ministers 30
Governor’s Authority derived from his Commission 10
Governors, Instructions to . 1006
Grammatical Construction of sub-sec. 16 of sec. 92 (Liquor Case) 47, 1066
Grant of Letters of Representation in England where Probate in the Colonies 839, 840
Grants to Provinces .. 533
,, to Schools 345
Granville, Earl, on Duty of Governor—General 42
,, ,, on Power to Legislate as to Marriage Licenses 256
Grave Question, and Special Leave to Appeal 441, 442
,, ,, withholding Sanction to Bill 43
Great Seal of Provinces .. 543
Grenada, Right of Appeal from 1011
,, in Canada .. 95
Grenadines, Appeal from .. 1011
Griqualand West, Appeal from 1011
Guernsey, Appeal from 1011
Guiana, British, Right of Appeal from 1010
Guidance of Governor-General 8, 9
Guiding Star in Canadian Politics 30
1110
INDEX.
Gunpowder, Sale of, and Provincial Laws
Guns, Trade in
Gwynne, J ., on the Decision
in Hodge 0. Reg.
Habeas Corpus and Extradition
Hagarty,
Halifax, Ap
Harbour, Property in Soil
Hard Labour for Breach of L
,J
,9
2,
Appeal in
reintroduced into Canada . C.J.O., on Dominion Law exemplifying Provincial Law
H
on Power of Municipalities
peal from
Harmless, Double Legislation
Hasty and Unwise Legislation and
iquor Laws
Dominion Power ... .. .
Head of Constitutional State, Governor-General Hereditary Titles to Legislative Councillors
Herschell, Lord, Quoted . .
on Manitoba School Acts
,9
9,
High Court of Delegates
,, Treason, Appeal to RC.
History,
,7
Brief, of Canada
of British Columbia
of Clergy Reserves
of Quebec
of the. Civil Code
of the
Union
9, ‘
Home Rule claimed
Honduras, British Appeal from
Hong Kong, Appeal from
Hospitals in Canada ,
Hotel Licenses by Dominion .. .
House of Assembly and Contempt ,, of Commons, Canada, and Dismissal of Lieutenant-Governor
39'
9,
9,
9,
2’
’>
of Roman Catholic Rights
PAGE
104
152
197
541
104,405
4
103
205
. 1012
493
102,135
.u 52
53,1070
30
539
187
. 373
n. 1005
533
3
5
4
4
95
290
131
199
. 1012
n 1012
124
145
36.1079
.n 23
and Laws for Peace, Order, and Good Government 43
. .of Assembly of New Brunswick, Continuance of
of Lords, Appeal to
and Provincial Representation, Adjustment of 24
and Senator sitting therein 17
Duration of . 23
First Election .. 22
how Summoned . 17
Increase of Representation . . . 24
Number of Members . . 4, 16
Number of Representatives 4
British Columbia. Nova Scotia.
Manitoba. Ontario.
New Brunswick. Prince Edward Island.
N orth-West Territories. Quebec.
Provincial Districts for 17
, Quorum of 23
Speaker, Election 0 23
when Voices equal, Speaker to have a Vote 23
.. 4 41
... ... ... 46, 411
INDEX. 1111
men
Hudson Bay Company cut up into Provinces 5
,, ,, Surrender of Rights, &c., of 755
,, ,, Territory added to Dominion 3
Hunting and Fishing by Indians, Regulation of 100
I
Illegal Measures, Duty of Governor-General 43
,, Provincial License 127
Illtreatment of Horses, Example 133
Immigration, Concurrent Powers 389
,, of Chinese 63, 122
Immunities of Canadian House of Commons 11
,, of Nova Scotia Assembly 1079
,, of Quebec Assembly 36
Imperial Acts, Not to be Altered by Provincial Act 32
,, Interests, and Assent to Bills... 42
,, Legislation and Provincial Legislation 336
,, Parliament and Colonial Legislature, Powers of Latter 22
,, ,, and Privileges Given 118
,, ,, and Quebec Assembly 36
,, ,, Interference by, Becoming Rare .. . 51
,, Power and Provincial Legislatures 142
,, Question, Direction to Crown to Intervene 95
Importance of Question in Special Leave to Appeal 19
Important Part of Canadian Temperance Act set out 130
Importation from Provinces 535
,, into Canada of Printed Copies of English Works from a Foreign
Country 91
Impost and Taxes, to originate in H. of C. 25
Imprisonment, False, Liquor Laws .. 56, 102
,, Imposition of 324
,, ,, for Contempt of Parliament 36, 1079
Income Tax compared with License Tax on Insurance 127
,, ,, in the US. 69
,, Meaning of... .. 75
Incorporated Company Acting for one Province only .. 45
Incorporation of Banks . . 74
,, ,, Provincial Tax on 75
,, of Companies 234
,, ,, with Provincial Objects . .. 2
Increase of Members of House of Commons of Canada 16,24
Indemnity, Contracts of, Not a Trade 263
Independence and Autonomy of each Province 1, 31, 293
India, Appeal from, in Criminal Suit 409
,, Acts and Appeal. See Bengal 1010
Indian and Chinese Electoral Franchise 100
,, Lands 94
,, ,, and Provincial Right 500, 519
,, ,, Purchase of, Requisite 96
,, Reserves 123
,, 'l‘radeAct 729
,, Tribes and US. 62
Indians, Prohibiting Selling of Liquor to 224
Indirect Tax, Converse of 119
1112 INDEX.
PAGE
Infamous Crime committed by Senator l5
Infringement of sub-sec. 9, sec. 92 , 155
Inland Fisheries 71
,, Navigation 610
,, Revenue Cases, Canadian tried, Court Established by Imperial
Authority .f. 59, 69
Inquiry, Commissions for, by Quebec Legislature 37
Inquisitorial Power of Quebec House of Assembly 36
Insalubrious Establishments, Power in Province to Pass Laws 104
Insanity, Imprisonment for, Right to Appeal 418
Insolvency .. - 78
,, and Bankruptcy... 330
,, Law in Canada Analagous to English Law 79
,, Law Quoted 165
,, Quebec and Final Judgments 80
Insolvents, Assignments by 78
Inspector of Fisheries going on Private Land 74
Inspectors, Raising Money to Pay 65
Institutions, Municipal, Examined . 54, 124, 150, 1043
,, ,, and Provincial Legislatures 1, 293
Instructions to Governor-General, and Provincial Bills 42, 1006
,, to Lieutenant-Governor, and Bills Passed . . 42
Instrument under Great Seal, Appointment of Lieutenant-Governor 27
Insurance in the Colonies and Probates 839
Intention of Statute as to sub-sec. 9, sec. 92 53
Inter-Colonial Railway 546
Interest 76
,, and Appealable Value 424
,, and Penalty for Non-payment of Tax 76
,, Imperial, Protecting 42
,, of Provincial Debts 485
,, Payable to Nova Scotia and New Brunswick 533
Interference with Dominion Law 65
Interim Notes of Insurance not a Policy of Insurance 271
,, Order pending Hearing of Appeal 436
Interlocutory Judgments . 421, 423, 428
International Copyright 849,868
Interpretation of Act of 1867 by Dominion Legislation .. 2
Intestates Dying without Heirs, and Right of Provinces .. 499 '
Introductory Enactment of sec. 91 Examined 56, 1066
Inventions 88
Irregular Appeals 422, 423
Isle of Man, Right of Appeal from 1012
J
Jamaica, Right of Appeal from 1012
Japan, Appeal from 1012
,, and Consular Courts, Action against British Subject 1031
Jersey, Right of Appeal from 1012
Judges, Appointment of 389
,, Attendance in RC. 1026
,, Duty of 390
,, Grossly Abusing Position, Appeal to RC. 414, 415, 416
,, in Canada 396
INDEX.
1113
Judges—cont. I’AGE
,, New Powers to 312
,, Removability of 394
,, Salary, &c., of 394
Judgment on the Liquor Law, 1883—4 157
,, in Liquor Prohibition Case... . 1064
,, Right, Special Leave refused 481
Judicature Act of Newfoundland (17 93) 594
,, Appointment of Judges 389
,, Provincial, and Dominion Legislatio . 323
Judicial Committee of the Privy Council, Acts in force 1005
,, ,, and Admiralty Courts .. 1019
,, ,, and Admission of Evidence . . 1015
,, ,, and Power to Hear Election Petitions 40
,, ,, and Questions between Governor-General and Lieu-
tenant-Governor 29
,, ,, and Security for Costs 438
,, ,, and Trial of Criminal Cases 34, 409, 413
a’ ,, Appeal from any Colony may be provided for 1023
,, ,, Appealing, Time for .. . 1008
,, ,, Appointment of Members of . 1026
,, ,, Assistant Registrar .. . 1025
,, ., Colonial Judges Sitting 1019, 1030
,, ,, Compelling Appearances 1015—1017
,, ,, Contempt, Punishing 1016, 1020, 1024
,, ,, Costs 1017,1021
,, ,, Custody of Records of High Court of Delegates . 1022
,, ,, Death of Parties . 1018
,, ,, Decrees to be carried into effect by Colonial Court . 1018
,, ,, Deﬁnition of Terms . 1022
,, ,, Depositions may be Ordered 1015, 1016
,, ,, Enforcing Decrees 1020
,, ,, Evidence .. . 1015
» u ,, taken in Court below , 1024
,, ,, Facts may be Remitted to Court in Colonies 1015, 1016
,, ,, Finality of Decisions 468
,, ,, Fixing Quantum of Damages 440
,, ,, Foreign Jurisdiction Act . 1031
,, ,, Hearing of Appeal . 1024
,, ,, “High Judicial Oﬁice,” meaning of .. . 1028
,, ,, Inhibitions 1021
,, ,, Indian Judges Sittin . 1019
,, ,, Issue may be directed to be tried 1016
,, ,, Judgments, enforcing 1020, 1024
,, ,, Judicature Act, 1873 . 1026
,, ,, ,, 1876 . 1026
,, ,, Lords of Appeal in Ordinary (Present) 1026, 1030
,, ,, Maritime Causes . 1026
,, ,, Monitions 1021
,, ,, Neglect to Obey Orders . 1024
,, ,, New Trial . 1016
,, ,, Orders made on Appeal and Death 0 1018
,, ,, Practice . 394, 1005
,, ,, Prize Appeals 927
,, ,, ‘Proceedings in Appeals 1018
,, ,, Production of Papers 1008, 1017
Proofs, taken by Clerk to RC. . 1024
1 114 INDEX.
Judicial Committee —cont.
PAGE
,, ,, Qualiﬁcation of a Lord of Appeal in Ordinary... 1028
,4 ,, Quorum . 1025
,, ,, Reference by O. in C. 1018
,, ,, Reference to Registrar 1017
,, ,, Registrar, Appointment of . 1017
,, ,, Rules, Power to make . .. 1022
,, ,, Salary of Lords of Appeal in Ordinary 1026, 1030
» ,, Surrogates 1020
,1 ,, Terms, Deﬁnition of 1022
,4 ,, Time for Appealing .. 1017
,, ,, Witnesses may be Punished for Perjury .. 1016
,, Tribunal for Patents in Canada, Minister of Agriculture 89
Jure Coronas 523
Jurisdiction, New, thrown on Old Courts, Competency of 20
,, of British Court .. 417
,, of Governor-General 388
,, of Judicial Committee . 1005
,, of various Courts in Canada, Glance at 396
,, of High Court in Salvage 984
Jury Decision . .. 446
,, ,, and Special Leave 449
,, Right to Challenge, Appeal 418
Justice, Administration of, Old Act 565
,, in the Province 308
Justices, Appointmentzof, in Indian Territories... 601
,, in Newfoundland, Act of 1824 627
,, in North-West Territories, Old Act 729
,, ' of the Peace, and Legislation therefor 390
K.
Keeping open on Sunday 125
Keewatin, Increase of Territory to 554
Kimberley, Earl, on Lieutenant-Governor Appointing Queen’s Counsel 35, 36
,,' ' ,, on New Brunswick School Question .. 337
King, J ., 011 Different Aspects of Subjects 192
King’s Commission to Admirals to try Offenders in any of the Plantations 704
Kingsdown, Lord, on Criminal Appeals . 415
Knutsford’s, Lord, Letters on Production of Probate in England 839
L
Labour, Hard, under Liquor Laws 135
Labrador, Résumé of History of 6
Labuan, Appeal from ... - . 1012
Lagos, Appeal from ' - . 1012
Lakes, Great, Property of Fish in 73
Lambe Cases 113
Land, Aliens, and Provincial Laws 307
,, and Provincial Legislation 71
,, and Provincial Property 499, 513
,, 'Allotted for Protestant Clergy 584
INDEX. 11 1 5
Land—cont- PAGE
,, Held in Fief and Seignory may be changed to Common Socage
Tenure 624, 650
,, ,, in a Province by a Dominion Company 46
Lands, Indian, Requisite to Purchase of 96
,, Public Management and Sale of 123
Language of Journals of HG. of Canada 542
Law by Province to carry into effect Act of Dominion, Validity of 65
,, Constitutional Powers of US. contrasted with Dominion and Provinces 61
n Criminal 12
,, correctly decided, chance of Appeal .. . 438
,, Limiting Liquor Licenses 66
,, re Liquor 129, 140,1064
,, Restriction on sale for sake of public safety is not a Law in relation to
Property 133
,, Society of Manitoba 393
,, Validity of Colonial Laws 738, 1079
Laws, Continuance of Existing 537
,, of Canada, Old 556
,, .on same subject by Dominion and Province ... 78
Leave to Appeal, Cases 406
,, ,, ,, Allowed ' 449
,, ,, ,, Refused 472
,, ,, Colonies, alphabetically arranged 1009
,, ,, Election Cases, none to be granted 19, 45, 308, 314
,, ,, if a doubt of the soundness of the decision, duty to grant 22
,, ,, Power of Queen to grant 82
,, ,, Question and Test on which granted 441, 447
,, ,, Special 122, 410 et seq.
,, ,, to Crown 476
Leeward Islands, Right of Appeal from 1012
Legal Estate in Crown Lands .. 97
,, Proceedings under Merchant Shipping Act 992
,, Rights and Schools 356
,, Tender .. . 78
Legislate, Power to, does not prove Property in the subject .. . 99
Legislation, Ancillary Power 142
,, and the Prerogative of the Crown .. . 33
,, by both Dominion and Provinces 104
,, by either Dominion or Province 44, 1064
,, by Dominion, Limit on 1043
,, by Provinces, &c., extent of their power 142
,, Conﬂict of 48
,, Double 50
,, Imperial .. -. 33
,, of Dominion modifying Provincial Legislation 302, 1070
,, Provincial 132
,, of Canadian Parliament, source of, as compared with Provincial
Legislation ... 132
,, Uniform _ 135
Legislative Assemblies, Meeting of 40
,, . Assembly and Elections 310
,, ,, of Ontario 35
,, v ,, Quebec, Constitution of ...35, 38
,, . ,, ,, and Punishment of Contempt 36
,, Authority of Parliament of Canada 43
Council of Quebec, Composition of 36
1116 INDEX.
Legislative—rom‘- PAGE
,, Council of Quebec, Quorum of 37
,, ,, Speaker of 37
,, ,, Old 568
,, Laws, Continuance of 39
,, Power, Ontario 35
,, ,, and Appointment of Lieutenant-Governors .. . 27
,, ,, and phrase used .. 27
,, ,, of Dominion Examined 56
,, ,, of Provinces strictly limited 384
,, Privileges jealously guarded . .. 109
Legislature acting by mandate from Imperial .. . 49
,, Colonial, powers of . 22
,, in Colonies, Power of, to alter Merchant Shipping Act 1000
,, of Nova Scotia, Continuance of 41
,, of Nova Scotia and New Brunswick, Continuance of 41
,, Provincial, and derivation of authority .. . ...1, 293
,, Provincial, not Delegates 1, 142, 293
Lemnos, Appeal from .. . 1014
Length of Office of Lieutenant-Governor 28
Letters Patent and revoking 460
,, ,, in the Colonies, Old Ac 732
Libel and Parliamentary Privilege 12, 36, 1079
,, Case, Appeal 417
,, Letters to Colonial Secretary 436
,, Privileged Communications 456
Liberties to Fishermen by Treaty with U.S. .. . 805
License by Dominion and Provinces 56
,, Burden of Proving 56
,, Cases 58
,, Commissioners and Authority from Provincial Legislatures 137
,, for Exposing Meat 161
,, for Vessels 151
,, is the machinery used to restrie 146, 1075
,, Liquor, U.S. .. 160
,, on Selling Intoxicating Liquor 161
,, to Brew, indirect Taxation .. 57
,, to Brewers 57, 127
,, to Fish and Legislature’s Powers 72
,, where no penalty on not taking it out 127
,, which would amount to a prohibition, Validity of 58
Licensee not bound to pay for the License 127
Licenses by Dominion 145
,, for Guns from both Dominion and Provinces 146
,, Liquor, Nova Scotia Act ... 126
,, Marriage, Legislation as to 256
,, Shop, Tavern,_and Petty Hawkers 52, 1075
Licensing and Prohibition, meaning of 190
,, Chinese... ... 122
,, not Commerce 214
,, Power 197
,, Sale of Meat 161
Lieutenant-Governor Acting ultra vz'r . .. 28
,, ,, and Dissolution of Legislative Assembly 40
,, ,, and Deputy 35
,, ,, and Higher Authority 9
,, ,, and Removal from Oﬂice 29
INDEX.
1117
Lieutenant-Governor—cont.
and Salary
and Supervision Appointing Queen’s Counsel
Appointment of
Appoints Councillors for Quebec
as a Corporation Sole
Dismissal of Holds the Queen’s Prerogative Power
of Executive Council the Same
Represents the Queen
Paid by Canada ..
Term of Service ,, , to Summon Legislative Assembly Life of Canadian H. of C. ,, and Property, Provinces can Legislate to Protect
Lighthouses in the Colonies
Limit of Prerogative of Queen
of Time within which Bill to be Disallowed
,, on Dominion Power Limitation and Prohibition, Distinction between of Provincial Powers, Tax on Dominion Oﬁicer
!
2’
,, on Issue of Licenses . . ,, on Powers of Congress ,, on Prerogative of Queen in Quebec
,, on the Power of Parliament of Canada
Limits of New Brunswick
,, of Nova Scotia
,, of Ontario
,, of Quebec Line of Railway to a State in US.
,, of Steamers between Provinces
Liquor Act, Nova Scotia
., ,, Old, Examined
Office by Pleasure of Governor-General
Reserves Bill in Capacity of ‘Oﬁicer of Dominion 42
.. 218, 220, 1066
PAGE
30
.n 28
7,11,35
27
36
33
.H 28
.u 23
in Council and Lieutenant-Governor acting with Advic
2s
38
.u 23
106,1043
991
31
.H 26
61,119,140
149,1075
70
65
61
31
800
ova—IQ
225
224
126
,, jLaws n. .u ... U. 129,140
,, ,, Attempt by Dominion to Institute Liquor Licences 145
,, ,, Brewer Selling on the Premises 153
,, ,, Cases. H odge’s 135
., .. .. Russell’s 129
,, ,, ,, Prohibition Case _ 1042
,, ,, of 1883-4. Judgment 157
,, ,, of New Brunswick . 162
,, ,, of Ontario, 1877, in Hodge’s Case 138
,, ,, Provisions of Ontario License Acts and Canadian Temperance
Act 161, 1064
,, ,, Repeal of 1042, 1064, 1070
,, License, and Sanction of, by Ratepayers... 162
,, ,, Limitation on Issue of 65
,, Prohibition and Special Leave to Appeal 467
,, Prohibition Case, 1895-6. Argument in PC. , 1044
,, ,, ,, Judgment in Canada 164
n ,, ,, ,, in BC. _ 1064
,, Selling to Indians _ 62, 224
,, Traﬂic 102, 161, 1042
1118 . INDEx.
Liquor—cont. ' PAGE
,. Trafﬁc and Abolition under sub-sec. 9, sec. 92 1069
,, ,, and Consolidation, of Laws 182
,, ,, Keeping Open on Sunday .. 125
,, ,, Provincial Delegation to Commissioners to Regulate, Valid 63
,, Tax, Old (Imperial) 565
,, ,, onWholesale ...‘ 159
Literal Meaning of the words “ Regulation of Trade and Commerce” must
be cutdown 118
Loan for Purchase of Rupert’s Land i 762
,, to Canada 809
,, to Province of British Columbia .. 906
Local Administration, Authority for .. 1
,, Acts and Imperial Acts 32
,, and Dominion Legislation 152
,, and Personal, Examined i 134
,, and Private Railway to US. Territory 67
,, and Provincial, and Power of Canadian Parliament 1042
,, Assembly and use of the word “ Parliament ” 11, 1079
,, ,, Protection of Members 1079
,, Courts of Admiralty 395, 888
,, Law and Corporations 244
,, Licenses, Imperial 220
,, Legislature, Power incidental to Close Public Houses on Sunday 161
,, Matter may become a General Matter 157
,, ‘Municipal Revenue and Canadian Temperance Act 132
,, Option _ w 134, 163, 1042, 1064
,, ,, Law compared with Law for Sick Animals 135
,, ,, Law Repealed by New Municipality 126
,, ‘or Private Matters 7 328
,, Purposes, Provinces can always impose Direct Taxation 67
,, ‘Revenue, raising ... 126
,, Societies ' 331
,, ~Wants 230
,, Works 224
,, Undertaking, what . 66
Lodging Printed Appeal Cases. See Note 1041
Lower and Upper Canada United 5
,, ,, ,, Severed 4, 6
,, Canada, Marriage Laws y 254
Lumber Dues, New Brunswick 535
,, in Province I 73
,,‘ Security 296
Lunatics, Removal of Crimin 841
M
Machinery of Limitation and Restriction is License 146
Macnaghten, Lord, on Manitoba Schools Acts 371
Madelaine Island 6
Madras, Appeal from. See Bengal 1010, 1014
,, _ School . _ , 347
Magazines and Copyright in Canada 86]
Maintenance of Prisons and Reformatories 123
Majority necessary in any Bill altering Electoral Limits 38
INDEX. . 1119*
PAGE
Malacca, Appeal from 1012
Male British Subject in Canada, Vote given to, in Algoma 39
Malta, Appeal from .. 1012
Man’ Isle of, Appeal from 1012
Management of Consolidated Fund 485
,, Rcformatories and Prisons . Y . 123
,, Public Lands Y 123
Mandamus in Liquor Case 161
Manitoba Act 369, 553
,, , Aliens holding Lands 101
,, and Barristers and Solicitors .. . 721
,, and Dominion Parliament . . 800
,, and Escheats 518
,, Appeal from 396,1012
,, History of 5
,, Judicature 403
,, Representatives in H.C. 4
,, Senators 13
,, Schools 372
,, ,, Act 333
,, ,, Catholic and Protestants Cases 371
,, State before Union 373
Manufactures in Canada _ 535
Marine Hospitals 71
Maritime Provinces, Senators 13
Marriage Acts .. 249,256
,, and Divorce, Expression as to 250
,, _ ,, Subjects Examined 48, 156
,. Licenses, Provincial Bills for 254
,, _ Solemnization of 249
,, V Validity Act 741
Marshall, C.J., on Constitution of the US. 118
Matabeleland, Appeal from 1012
Matrimonial Causes, Appeal to RC. 435
Matter within exclusive competency of Provincial Legislature 85
Mauritius, Appeal from 1012
Maximum Number of Senators 15
McCarthy Acts, 1883—4 188
Measures and Weights 76
Meat, Sale of, to be Licensed 161
Medical Act, Colonials Practising in England 884
,, Inspector on British Ship 943
,, Practitioners in Canada 368
,, ,, Colonies 754, 884
Meeting of Dominion Parliament 12
,, Legislatures of Ontario and Quebec 38
Members of H.C. Canada for New Brunswick .. 18
,, of H.C. Canada .. 16
,, of Legislative Assembly, Ontario 35
,_, ,, ,, Quebec 35
,, ,, ,, Question of Privilege 36, 1079, 1088
Mercantile Law Question, Appeal allowed 433
Merchant Shipping Act, 1894 :—
,Accidents, Report of 965
,Admiralty Jurisdiction over British Seamen in Foreign Port 994
Advance of Wages 937
1120
INDEX.
Merchant Shipping Act, 1894—com‘. PAGE
Agreement with Crew, Alterations in . 936
,, ,, Condition 936
,, ,, Copy of . 936
,, . ,, Foreign-going Ship 936
,, ,, Forgery of 936
,, ,, Form 936
,, ,, Home-going Ship 936
,, ,, need not produce 936
I) ” Period Of ... ,, with Lascars 936
Allotment Notes, Payment of Wages 937
,, ,, . Suing on 938
Alterations to Ship, Evidence of 931, 932
,, Returns as to . .. 932
Anti-Scorbutics, supply of, in Colonies 943
Appeal on Summary Conviction 993
,, Court of Survey 948
Apprentice .. . . . . 935
,, Pauper 935
Apprenticeship of Paupers 935
Arrest of Foreign Ship occasioning damage 994
,, Deserter . 945
Assignment of Salvage Rights 944
Bank, Savings, Allotment of Wages 937
Bankruptcy of Owner and Mortgagee 931
Beneﬁcial Owner 932
Births and Deaths, Registratio 946, 960
Board of Trade and Harbour Dues . 1000
,, and Savings Banks .. . 938
,, General Control of 998
,, Inspectors . ... 1090
,, Purchasing Wreck .. . 979
British Ship, ceasing to be, delivery up of Certiﬁcate 930
,, Prosecution of Offences 998
,, Seaman in Foreign Land 937
,, Ship, qualiﬁcation of Owner, Registry 927
Cancellationof Passenger Steamer Certiﬁcate 948
Cargo, Deck, Dues 933
,, Salvage of 981
Casualties, Inquiry Courts . 973
,, Certiﬁcate of Ofﬁcer 973
,, Removal of Master 973
Certiﬁcate, Colonial 935
,, Delivery up, when Ship lost 930
,, Endorsement on 930
,, Grant of 934
,, Loss of, of 'Competency . 935
,, New, Power to grant 930
,, of Competency 934
>9 9, Fees .. ,, . ,, Forgery of... 935
,, ,, Form 935
,, ,, Production of . .. ... 935
,, of Mortgage, Contents 931
,, ,, Loss of 931
,, ,, Revocation of
931
INDEX.
1121
Merchant Shipping Act, 1894—00nt.
Certiﬁcate of Mortgage, Rules as to
,, ,, Sale of
,, of Passenger Steamer’s Survey
,, of Registry ,, of Discharge of Seaman Abroad
,, Provisional
,, to Engineers . ..
,, using Improper Certiﬁcate Change of Ownership, Registry anew
Charge on Owner, Relief of Seaman’s Family
,, on Wages Coastguard, Remuneration on Wreck and Salvage '
Coasting Ship and Load Line Collision, Assistance ,, Duty to assist
,, Regulations . .
Colonial Certiﬁcates of Competency ,, Governors forwarding Emigrants, Expenses
,, Legislatures and Part 2 of Act
,, ,, Power of
,, Lighthouses . . .
,, Ports, Deposit of Document
,, ,, Engagement of Seamen
,, Registry .
,, Ships, Lead Line
,, Voyage, Deﬁnition
Colonies, Supply of Anti-Scorbutics
Colours, National, hoisting .. .
Compensation to Seamen, improper discharge
Competency, Certiﬁcate of
Colonial Certiﬁcates
,, Engineer’s
,, Forgery of Certiﬁcate of
,, Production of Certiﬁcate
,, Naval Ofﬁcer’s Certiﬁcate Complaints of Ship Unsafe
Compliance with Act, Power to enforce Conﬂict of Laws Corporations and Sailors’ Home
Court and Deserter
,, Power to Prohibit Transfer
Contracts, rescission of Consuls forwarding Emigrant Ship Passengers .. .
Costs, Unsafe Ship
,, Procuring Punishment of Seamen
Creditors and Deceased Seaman Crew, Certiﬁcates as to Agreement with
Changes in Foreign-going Ship
Copy of Agreement Engagement with ,
Forgery of Agreement Foreign-going Ship, Agreement with
Home—going Ship, Agreement with
,, List of Crown Claim to Wreck Customs, Legal Expenses by Commissioners
S 2340.
PAGE
1000, 1001
972,
931
931
948
929
941
931
934
930
932
941
939
984
968
965
965
964
935
959
947
991
947
936
934
968
948
943
933
939
934
935
934
935
935
934
973
999
947
947
945
930
939
959
972
939
940
936
936
936
936
936
936
936
946
979
998
INDEX.
Merchant Shipping Act, 1894—007325.
Custody of Certiﬁcate of Registry
Damages and Part Owners
Dangerous Goods
Deaths, Registration of
,, Return of Debt of Seaman, Recovery of _ Deceased Seaman and Will Creditors of ,, ,, Deposit .
,, ,, Property of Deck Cargo Dues Deck-lines, Marking Declarations, False, as to Registry of Alterations ,, respecting Alterations, Fees, Register
Deductions from Wages . . .
,, in ascertaining Tonnage
Deﬁnition, Passenger Ship
,, Terms . .. .
,, of Colonial Voyage Delivery up of Certiﬁcate
,, of Account Desert, Enticing to Deserter, Arrest of ,, Conveyance on Board
,, Forfeiture of Wages ,, from Foreign Ship ....
,, Imprisonment of '
Desertions Abroad
Destitute Seamen Detention of Property for Salvage
,, of Ship for Damages
Disbursements of Wages
Discharge of Seamen Abroad ,, Improper Seaman
,, Mortgage, Entry of
,, Seamen Discipline ,, of Stowaways Distress on Ship for Damage Distressed Seamen
Documents, and Forms ,
,, Transmission of, by post
Draught of Ship, Settlement of Dispute as to
Dues, Deck Cargo ,, Local Light
,, Lighthouse . .
Electricity, Ship Propelled by Emigrant Ships ,, ,, Abstract of Part 3 ,, ,, Accommodation of Steerage Passengers
Appeal to Court of Survey
Application of Part 3
9, ,7
a, n -
,, ,, Conveyance Wrecked Passengers . . .
,, ,, Carriage of Passengers .. .
,, ,, Clearance
,, ,, Dangerous Goods .. ...
PAGE
929
978
939
930
.n 943
944
940
940
933
940
933
933,937
931,932
932
937
933
947
. 1001
943
930
937
943
945
945
.n 943
.u 943
.U 945
945,943
941
931
993
939
.u 941
.u 939
.n 931
933
945
943
993
942
.n 993
. 1001
933
933
990
939,990
. 1002
947,949
931
950
957
931,932
.“ 959
950
957
953
INDEX. 1123
Merchant Shipping Act, 1894—cont.
PAGE
Emigrant Ships, Discipline on Board 958
,, ,, Exempt from Survey 961
,, ,, Forfeiture of 958
,, ,, Forms and Fees 961
,, ,, Governors forwarding Passengers 959
,, ,, Harbour By-laws .. 961
,, ,, Inspection of 957
,, ,, Insurance of Passenger Money 959
,, ,, Landing Passengers at Wrong Place 959
,, ,, List of Passengers 957
,, ,, Maintenance of Steerage Passengers 958
,, ,, Master’s Bond .. .. . 956
,, ,, Medical Inspector of Steerage Passengers and Crew 956
,, ,, Medical Staff ‘ 9.54, 955
,, ,, Military Stores .. . 954
,, ,, Number of Passengers 950
,, ,, Passenger Contracts 958
,, ,, Payment of Fare 957
,, ,, Provisions, Water, and Medical Stores 951-953
,, ,, Re-landing of Passengers 956
,, ,, Regulation of Steerage Passengers 958
,, ,, Report of Return 957
,, ,, Return of Passage-money 958
,, ,, Sale of Spirits 958
,, ,, Short of Provisions 957
,, ,, Stowage of Goods _ 951
,, ,, Subsistence of Passengers 958
,, ,, Wrecked , . 959
Emigration Frauds 960
Endorsement on Certiﬁcate 930
Engagement of Seamen 936
Engineer’s Certiﬁcate of Competency 934
Enticing Seamen to Desert . 946
Entry of Discharge of Ship from Mortgage 931
Equipment, Emigrant Ship’s 950
,, General 966
,, of Passenger Steamer . 949
Equitable Rights 932
Evidence and Wreck 979
,, Returns of Alteration 931
,, when Ship causes Damage 996, 997
Examination Fees 934
,, of Masters and Seamen 934
Excess Passenger, Penalty 948
False Name of Ship, Seaman giving 945
Family of Seaman and Relief 941
Fees on Examination for Certiﬁcate of Competenc 934
,, for Measurement . 933
,, Passenger Steamer Certiﬁcate . 948
,, Pilotage Certiﬁcates 986
,, Receivers of Wreck 984
Fishing Boats .. 962-964
,, ,, Application of Act to . .. . .. 1002
Fog and Light Signals 966
Forgery of Agreement with Crew 936
,, Um'tiﬁcate of Competency 935
4132
1124 INDEX.
Merchant Shipping Act, 1894—00nt. PAGE
Forgery of Passenger Steamer Certiﬁcate 948
:9 Transfer 932
,, Savings Bank Documents . .. 938
Foreign-going Ship, Agreement with Crew 936
,, ,, Payment of Wages 937
,, ,, Production of Apprentice’s Indentures 935
,, Ships and Load Line 967
,, ,, and Collision Regulations 965
,, ,, and Application of Act 1000
,, ,, Desertion from 946
,, ,, Load Line 968
,, ,, Occasioning Damage 994
,, ,, Pilotage Dues ‘ 988
,, ,, Unsafe, Detention 973
,, Countries, leaving Seamen in 941
,, Money, Payment of Wages in 937
,, Places where H.M. has Jurisdiction 1001
,, Ports, Engagement of Seamen in 936
,, ,, Deposit of Documents 947
,, ,, of Registry, Measurement 934
Foreigner and Certiﬁcates of Mortgage 931
Forfeiture of Wages, Illness of Seamen 939
,, of Wages and Desertion .-.. 946
,, ofShip 933
Frauds in Procuring Emigratio 960
Freight, Lien for 977
Grant of Certiﬁcate of Competency 934
Grades of Certiﬁcate of Competency 934
Grain Carriage 970, 971
Goods and Lien for Freight, Deﬁnition 977
,, Discharge of Lien 977
,, Lien for Freight 977
,, Provisions as to Deposits 977
,, Warehousemen selling 977
Home-going Ship, Agreement with Crew 936
,, Payment of Wages 937
Harbour, Local Rules and Collisions 965
H.M.’s ships, Exemption of 1001
Illness of Seamen, Wages 938
Imprisonment, Wages of Seamen 939
Incapacitated Persons 932
Indentures of Apprenticeship, Production of 935
Inquiry Courts in Shipping Casualties 973
Inspectors of Board of Trade 1000
Insurance of certain Risks .. . .. . 978
Interest in Mortgage, Transfer of 931
Jurisdiction of Admiralty over British Seamen in Foreign Parts 994
,, Provision as to, in case of Oﬁ'ence 993
,, Oﬁence on Board Ship 994
Lascars, Agreement with 936
,, Relief of Destitute 941
Last Ship or Name, Penalty for giving False .. . 945
Legislatures, Colonial, Power of 1000, 1001
Legal Proceedings . .. 992
Emigrants 960, 961
Liability of Beneﬁcial Owner 937
INDEX. 1125
Merchant Shipping Act, 1894—00nt. PAGE
License to Supply Seamen 960
Life Buoys 966
,, Loss of, Liability of Shipowner ... 978
,, -saving Appliances 966
Lighthouse Authorities, Expenses, Establishment, Estimate, Mort-
gages 988, 990, 991
,, Construction, and Powers as to Land, 830. 989
,, Dues ... ... 989, 990
,, in the Colonies 991
,, Offences 991
Limitation on Shipowner’s liability 978
List of Crew .. 946
Load—line and Deck-lines 966, 968
,, Regulations 966, 968
Loading Timber 969
Local Acts and Tonnage Rates 933
Lodging-house Keepers and Seamen . .. 944
Logs, Oﬁicial 946
Loss of Certiﬁcate of Mortgage 931
,, of Certiﬁcate 930
,, of Ship, Report of 965
Lost Ship, Seaman’s Wages 940
Managing Owner, Registration of 932
Marine Boards, Local 946
Marine Store Dealers 980
Master and Mate, Grant of Pilotage Certiﬁcates 986
,, and Pilot, Liability 988
,, Certiﬁcate of Competency 934
,, Change of 947
,, Penalty on leaving Destitute Seamen 941
,, Remedy for Wages 939
,, Removal of 973,976
,, to deliver Account 937
Measurement, Surveyor’s 933
Medical Attendance, Expenses of 944
,, Expenses, Recovery from Owner 944
Medicines, Inspection of 943
Medical Inspectors, Appointment of 943
,, Inspection 943
,, Practitioner to be carried 944
Medicine, Regulations as to 943
Measurement 933
,, Fees 933
Mercantile Marine Fund 992
Misconduct endangering Life or Ship 945
Money, Foreign, Payment of Wages 939
,, Order, Fraudulent 938
,, Orders to Seamen v . . 938
Mortgages not treated as Owner 931
,, Entry of Discharge 931
,, Priority... 931
Mortgage, Certiﬁcate of, contents 931
,, Loss of Certiﬁcate of 931
,, not affected by Bankruptcy 931
,, ofShip or Share 931
,, Restriction on Certiﬁcates of 931
1126 INDEX.
Merchant Shipping Act, 1894—001225. PAGE
Mortgage, Revocation of Certiﬁcate of 931
' ,, Rules as to Certiﬁcate of 931
,, Transfer of Interest in 931
Name of Ship, Rules as to 931
National Character 932
,, Debt Commissioners and Savings _Banks 938
Naval Court Abroad, Constitution of 976
,, ,, Obstructing Investigation 976
,, ,, Oﬁicers’ Payment 977
,, ,, Provisions applicable 976
,, ,, Referees 977
,, ,, Report of Proceedings 976
,, ,, Summoning Court 976
u ,, Survey .- . 976
,, Oiﬁcer’s Certiﬁcate 934
Navy, Volunteering into 943
New Certiﬁcate, Power to Grant 930
,, Registry, Ship altered 931
,, Registration on Change in Ship 932
Notes, Advance, Payment of Wages 937
Oifence, Abroad 994, 995
,, Entry in Log ..'. 945
,, Prosecution of, in British Possession 998
Offences on Board 945
Oﬂicer, Certiﬁcate of Competency 934
,, Public, and Legal Proceedings 938
Oﬁicers, Naval, Certiﬁcate of Competenc 934
Oﬁicial Log 946
,, Entry of Collision 965
O. in C., Alteration of .. 1001
,, and Application of Act to Foreign Ships 1000
Order for Sale of Ship 930
,, in Passenger Steamer 949
,, of Court Transferring Ship i 930
Owner’s Claim to Wreck 979
Owner and Pilot, Liability 988
,, Bankruptcy and Mortgage .. . ,. . 931
,, Beneﬁcial .. 932
,, British Ship, Qualiﬁcation of 927
,, Managing, Registration of 932
,, Medical Expenses 944
,, Mortgages not treated as 931
,, Responsible . 961
Ship, Consolidated Claim
,, 978
Part 1, 927; 2, 934; 3, 947, application of, 961, 962; 4, 962;
5, 964; 6, 973; 7, 977; 8, 977, extent of, 978; 9, 978; 10, 984;
11, 988 ; 12, 992; 13, application, 998, 992; 14, 998.
Passage Brokers 960
Passenger, Proof of, on board Ship 978
,, Ship, when Exempt from Survey 961
,, Steamer, Survey of... 948
,, ,, Keeping Order v 949
Passes, Temporary 930
Pauper Apprentices 935
Payment, Lost Money Order 938
Payment ofWages 937
INDEX. 1127
Merchant Shipping Act, 1894—cont. PAGE
Payment of Wages, Ship’s Papers 937
Penalties, Application of 997, 998
Penalty engaging Seamen without License .. 935
,, for being on Board Ship without Permission 945
,, for Detaining Seamen’s Eﬁ’ects 944
,, for Overcharge by Lodging-house Keepers .. 944
,, on Enticing Seamen to Desert 946
,, on Forcing Seamen ashore and Leaving Behind 941
,, on Masters, Destitute Seamen 941
,, Non-compliance with the Rules as to Deceased Seaman’s
Property .. . . . . 940
,, Sending Unseaworthy Ships to Sea 971
,, Using Improper Certiﬁcate 930
Pilot Boats and Signals 987
,, Dues, Recovery of 986
,, Fund 988
,, Licensing . 987, 988
,, Suspending License 988
Pilotage . . . . . . ... 985-988
,, Certiﬁcates of Masters and Mates 986
Compulsory .. . . . . 988
,, Exemption from Compulsory 985
,, Rates .. 988
Ports, Colonial and Foreign, engagement of Seamen 936
Priority of Mortgages 931
Procedure on New Registration 932
Proceedings, Suing for Wages 939
Production of Certiﬁcate of Competency 935 '
Property in Ship, Transmission of 930
Proof of Passengers on Board 978
Prosecution of Offences 992
Provisional Certiﬁcate, when Ship to be Registered Anew 930, 931
Provisions and Water .. 943, 951
,, as to Apprenticeship to Sea Service 935
,, Inspection of 944
Property of Deceased, Dealing with 940
,, ,, Seamen 940
,, ,, ,, left Abroad 940
,, ,, ,, dying at Home 940
,, ,, ,, and Board of Trade 940
,, of Seamen, Forgery ' 941
,, ,, dealing with Unclaimed 941
Power conferred by Certiﬁcate 931
,, of Colonial Legislatures 1000, 1001
,, of Court to Prohibit Transfer of Ship 930
,, of Sale by Mortgagee .. 931
,, of Superintendent 937
Publication of Documents 1001
Punishment, Costs and Wages 939
,, on sending Unseaworthy Ships to Sea 971
Rates of Pilotage 988
,, on Measurement of Tonnage 933
Rating of Seaman 936
Receivers of Wreck, Appointment of 934
,, ,, Fees 984
’,
Powers of 973
1128 INDEX.
Merchant Shipping Act, 1894—00m‘. PAGE
Recovery of Pilot Dues .. . 986
,, of Wages 939
Refusal to Work, Wages 939
Register British Ship, Obligation to .. 928
,, of Deserters 946
,, of Seamen 946
,, Transferof... 932
,, Tonnage, Rules for ascertaining 933
Registered Tonnage and Rates 933
Registration Procedure . .. . .. 928
,, of Alterations in Ship 931
Registry Anew when Ship Altered 931
,, Certiﬁcate 929
,, Custody of Certiﬁcate 929
,, in Colonies... 934
,, of Transfer of Ship or Share 930
,, on Change of Ownership 932
Regulation as to Load Line 968
,, for Measurement of Ship 933
,, New Registry on Alteration 931
,, to Avoid Collisions... 965
Re-hearing of Inquiries 974, 975
Relief to Seaman’s Family, Reimbursement 941
Remittance of Wages by Money Order 938
Rent, Warehousemen’s 977
Repeal ofActs 1002
Requisites for- Certiﬁcates of Mortgage 931
Re-registration of Abandoned Ship .. . 932
Return of Master’s Certiﬁcate 974
,, or register of Seamen 946
Returns, Evidence of Alteration 932
,, Forms of Master’s 932
Restriction on Certiﬁcates of Mortgage .. 931
Revocation of Certiﬁcate of Mortgage 931
Royal Navy and Property of Seaman . .. 941
Rules for ascertaining Measurement of Tonnage 933
,, as to Certiﬁcate of Mortgage 931
,, as to Foreign Money 937
,, as to Name of Ship 931
Safety, Collisions , 964
,,I A Valve 949,966
Sale by Mortgages 7 931
,, ‘Order of Court 930
,, ‘Order for,‘ on Transmission to Unqualiﬁed Person 930
,, Revocation of Certiﬁcate of 931
Sailors’ Home and Site ~ .. . 947
Salvage, Agreement as to ' 981
,, Appeal 981
,, Apportionment of 982
,, Arbitrators in 981
,, Assignment of, Sale of 944
,, Coast Guard Remuneration - ... 984
,, by H.M.’s Ships 982
u ,, Abroad 983
” ' ,, Bond 983
Enforcement of Bond 983
i’ 3!
INDEX.
1129
Merchant Shipping Act, 1894—00nt.
Salvage by H.M.’s Ships, False Representations
,, ,, Forgery
,, Detention of Property
,, Disputes ,, Exemption from Stamp Duty ,, Jurisdiction of High Court
,, of Cargo or Wreck
,, of Life Receivers of Wreck, Appointment of
,, Sale of Detained Property by Receiver
,, Saving Salvage Rights
,, Seaman’s Right to Receive
,, Valuation of Property
PAGE
984
984
981
981
984
984
981
980
984
981
983
938
981
Savings Bank Accounts 938
,, Allotment of Wages 937
,, Expenses of 938
,, Forgery of Documents 938
,, Board of Trade 938
Schedules of Act 1002
Scorbutics, Anti, Supply of, in Colonies... 943
Seamen, Accommodation 944
Sea Service, Apprenticeship Regulations 935
Seamen Carried under Compulsion, Discipline of 946
,, Certiﬁcate of Competency 934
,, Colonial Ports . 936
,, Debt of, Recovery of 944
,, Deceased, Deposit 933
,, ,, Property of... 940
,, Discharge of 936
,, Discharged Abroad, Certiﬁcate 941
,, Destitute, Penalty on Master 941
,, Forcing on Shore 941
,, Forfeiture of Wages 939
,, Left Abroad .. 941
,, License to Supply 935
,, Lost with Ship, Recovery of Wages 94o
,, Medical Inspection of 943
,, Money Orders 938
,, Protection of 944
,, Rating of . 936
,, Registration of 945
,, Right to recover Wages and Salvage 938
,, Wages, Right to, Commences 938
Sea Service Apprenticeship . .. . . . 935
Share, Transfer of 930
Settlement of Wages 937
Ship, Transfer of, or Share 930
,, Papers and Payment of Wages . 937
Shipowner, Consolidation of Claim 978
,, Landing Goods 977
,, Liability of 977
Signals of Distress 966
,, Private , looo
Solicitation of Lodging-house Keepers 944t
Steerage Passengers, Regulations as to 9,58
,, ,, Right of Contract 960
1130 INDEX.
Merchant Shipping Act, 1894—00nt. PAGE
Stowaways, Penalty on 946
Suing as to Allotment of \Vages > 937
Suits for Wages 939
Summary Conviction, Appeal 993
,, Jurisdiction Acts 992
,, Proceedings for Wages 939
,, ,, Limitation of Time 993
,, Remedies against Deserters 945
Superintendents and Payment of Wages 937
,, Assistance to Apprentice .. . 935
Supplying Seamen, License for 935
Surveyors 933
Survey Court, Appeal to 948
,, of Emigrant Ship 949
,, of Passenger Ship—Colonial 948
Surveyors of Ships 999
Timber Loading 969
Terms used, Deﬁnitions 1001
Temporary Passes 930
Tonnage Deductions Allowed 933
,, Levy ofRates 933
,, Measurement 933
,, of Ships, Fixed 933
Transfer of Interest in Mortgage 931
,, ofRegistry 932
,, of Ship by Order of Court 930
,, ,, or Share 930
,, ,, Power of Court to Prohibit 930
Transmission of Certiﬁcate of Survey of Passenger Ship 948
,, of Documents to Registrar by Superintendents 947
,, of Property in Ship 930
,, and Publication of Documents 1001
Trinity House 987
Trawlers 964
Trusts . 932
Unclaimed Property of Seamen 941
,, Wreck, Notice of .. 979
Unqualiﬁed Person, Transmission to 930
Unsafe Ships ‘ 967
,, ,, Costs and Damages 972
,, ,, Detaining 972
Unregistered Ship 928
Unseaworthy Ship, Sending to Sea 971
,, ,, Survey of 973
Volunteering into Navy 943
Voyage, Colonial 948
,, Length 948
Wages, Account of 937
,, Accruing, Imprisonment of Seamen 939
,, Advance Notes 937
,, Allotment Notes 937
,, Ascertaining Amount of Forfeiture 946
,, Charge on ' 939
,, Commencement of Right 938
,, Costs 939
,, Deductions from 937
INDEX. 1131
Merchant Shipping Act, 1894—cont. PAGE
Wages, Deductions, Payment to Superintendent 946
,, Foreign-going Ship 937
,, Forfeited for Desertion 946
,, Freight 938
,, Home-going Ship 937
,, Master’s Remedy 939
,, Payment 937
,, ,, before Superintendent 937
,, ,, Ship Papers 937
,, Questions aeﬁ‘cting Forfeiture 946
,, Recovery of, Seaman Lost with Ship 940
,, Remittance by Money Order 938
,, Restriction on Sale of 939
,, Right to Recover 938
,, Seamen Discharged Abroad 941
,, Settlement of... 937
,, Suing on Allotment Note 937
,, Suits for, Restriction on 939
., Summary Proceedings for 939
,, Superintendent and Payment of 937
,, Time of Payment 937
,, Wreck 938
Warehousemen’s Protection 977
,, Rent 977
,, Sale of Goods 977
Water, Provisions, as to 943
Weights and Measures on Board 943
Will of Deceased Seaman 940
Witnesses and Wreck 979
Wreck, Admiral Interfering 979
,, and Salvage .. 978
,, ,, Deﬁnition 0 978
,, ,, Duty of Receiver 978
,, Board of Trade Purchasing 97 9
,, Claim of Owner 979
,, Dealing with 979
,, Delivery of Unclaimed 979
,, Disputed Title to Unclaimed 979
' ,, Disposal of Unclaimed 979
,, Examination of Witnesses 97 9
,, Money Order, Payment Lost Order 938
,, Notice of Unclaimed 979
,, Notice to Receiver 979
,, Oﬁ’ences in Connection with 980
,, Passage over Land to Reach or Assist 978
,, Penalty on Taking 979
,, Powers of Receiver 978
,, Provisions as to 984
,, Receiver Absent, Exercise of Power 979
,, Right of Crown .._. 979
,, Sale of, by Receiver 979
,, Salvage of 981
,, Suppressing Plunder 978
,, Valuation of Salvage 981
Wages of Seamen 938
Merchant Shipping Act and Behring Sea Awar 917
1132 INDEX.
PAGE
Meredith, C. J ., on the Power to Prohibit Sale of Intoxicating Liquors 161
Message to H. C. of Canada on Dismissal of Lieutenant-Governor 28
Military Forces, Command of, in Queen 10
,, Services 69
Militia. 860 Military Forces.
Milk, Frauds in the Supply of, Dominion and Provincial Acts 323
Mill, John Stuart, quoted 115
Minerals and Railway Land .. . . . . 123
Mines and Minerals belonging to Provinces 499
,, ,, and Public Lands ... 123
Minister, Duty of, when Executive’ 89
,, of Agriculture and Patents 89
,, of Finance - 543
,, of Justice and Provincial Acts 51
,, ,, Opinion on Provincial Acts 33
' --,, of Ontario and Quebec 543
Ministry and Passing of Disapproved Bill 42
,, Illegally Dismissed by Lieutenant-Governor 28, 29
Minute Regulations of Trade 152
Miramiohi River Salmon Fishery . . . 72
Miscellaneous Provisions .. . .. . . . . . .. . . . 537
Misdemeanor, Offence created by Provincial Legislature, a Protest by Dominion 107
Mis.statements of Facts on Appeal 430
Money Bills and House of Lords in England 25
,, ,, Senate of U.S. 25
,, ,, to Originate in House of Commons 25
,, Borrowing 69, 123
,, Paper, &c. . . 74
,, Penalty for Selling Liquor .. . 144
,, Vote, before Passed must be Recommended by Governor-General 25
,, ,, in Provincial Assemblies 41
Monkswell, Lord, on Dominion Occupying the Ground First 147
Montserrat, Appeal from . . 1012
Morality, Offences against, Enacting Laws as to 106
Morocco, Appeal from 1012
Mortmain Law of Quebec 46, 238
Municipal Acts, Old ' 218
,, By-Laws, force of .. . 1075
,, Institutions and Tax, on Dominion, Oﬁicial 70
,, ,, Provincial Legislatures, Not 1, 293
,, ,, Sedgewick, J., on 187
,, ,, Strong, J., on 166
,, ,, sub-sec. 8, sec. 92 54, 124, 142, 150, 1069
,, Law of Quebec 245
,, ,, Closing Public Houses on Sunday .. . 161
,, Prohibition of Sale of Liquor 162
,, Revenue and Legislation by Canadian Parliament 132
,, Right to Impose Penalty for Delay 77, 126
,-, Revenue, Raising 126
,, Taxation - 75
Munioipalities in Quebec - ~ 201
,, Merged, Repeal of By-laws 126
Municipality, Adopting Canadian Temperance Act 123
,, Clause Examined by Gwynne, J. S. C. 178
Murder, Appeal from Conviction for 418
Muscat, Appeal from 1012
INDEX.
1133
Napoleon Code in Quebec
Natal, Appeal from National and General Concern, sec. 91 applies to
,, Defence "Works and Dominion
Naturalization
,, Act ,, and Treaty with US.
,, American Cases ,, by the Provinces
,, in Canada Naval Defence, Colonial~ Act of 1865 ,, Force, Command of, in the Queen
,, Volunteers in the Colonies Navigation and Commerce, Old Law ,, and Shipping ,, and Trade, Power over, and Chinese Immigration
,, Laws of Great Britain and the American Colonies
,, Obstruction to, and Dominion . ...
Negative Decision where Senators Equal .
Negligence of Railway Company and Appeal Negotiable Instruments, Timber Receipts
Nevis, Appeal from
New Dominion Court, Power to Establish
Provinces, Forming
,_. Territory and Senate
,, Trial
3,
,, ,, Ordered in Canada
New Brunswick, and Money Bills
,, and Solicitors Appeal from _
Continuance of Legislature of ..
Electoral District
Executive Authority
Grant to...
Judges and Judicature
,, ,, Lands
Limits and Boundary
Liquor Legislation Examined ,, ,, ,, License Conviction (Russell’s case)
Lumber Dues
Members for, in H.C. Canada
,, ,, Payment of Interest to ,, ,, Representation in H.C.
,, Seat of Executive Government A,
School Case, J udgment, of James, L.J.
School Question, Lord Carnarvon
Separated from Nova Scotia...
Senators...
District for returning M.P.s for H.C. Canada
. 1012
100, 764, 801
PAGE
4
106
486
100
802
101
101
770
734
11
734
591
70
64
64
66
16
423
297
. 1012
103
3
555
455, 456
434
41
721
396, 1012
41
18
18
31
534
402
72
7
194
129, 162
535
16
533
4
35
366
336
,, ,, Tax on Income
New Borneo, Appeal from
9’ $7
. . 1010
5
13
75
1134
INDEX.
Newfoundland, Appeal from
Bays ..
Constitutional Act, 1842 Entry into Union History of
Judicature Act
New Guinea, Appeal from New Hampshire Law as to Brewer’s License New South Wales, Appeal from
New Zealand, Appeal to RC. from
Niagara Waste Lands, Property in
Niger Protectorate, Appeal from
Non—Attendance of Senator ..
Non-seet,a,ria,n Schools North-west Territories (Can), Appeal to J .C. from
,, Barrister and Solicitors ,, History of
,, Justice in, Old Act
,, Power to make Ordinances
,, Representatives in H.C.
Senators
North-Western Provinces (India), Appeal from Noseitur a Sociis Rule
Notes Promissory .
I. on.
Notice of Dismissal of Lieutenant-Governor
,, ofAppeal
,, to various Persons in Special Reference Cases “ Notwithstanding anything in, &c.,” the Phrase
Nova, Scotia,’ Appeal to PC. . . Assembly and Punishment for Contempt
Barristers and Solicitors .
Baronets ' .. Constitution of Legislature of Debt... Districts for returning M.P. for H.C. Canada
Executive Authority . . . Expatriation of Inhabitants Grant to .
History of Judicature Limits of
Liquor Act
Money Bills
9,
Payment of Interest to Prohibition of Liquor Sales
Province of the Union
Representatives in H.C.
Seal, the Seat of Executive Government
Senators Shipping Acts
Nuisance, General Law, Power to pass by Dominion
Nyassaland, New Name
PAGE
396,1012
74
697
".3,546
6
594
. 1012
.H 130
.H 1009
. 1012
.n 524
. 1012
15
333-342
393,1012
721
5
729
368
4
. 13
. 1013
.u52,57
7e
23
432,1003
401
.u 44
393,1013
. 1079
721
.H 5
.u 41
533
17
u. 31
.H 5
534
5
402
7
123
41
533
133
. 104
1013
INDEX. 1135
0
PAGE
Oath ofAllegiance 537
,, ,, ,, Act 773
,, ,, Lieutenant-Governors 30
Object of RNA. Act 1, 31, 150, 293
Obstruction in Rivers ' 73
Occupation of Lands by Indians 100
Offence against Dominion and Provincial Temperance Acts 123, 161
,, ,, Public Morality 106
Offences in the Colonies, Prosecution of, under Merchant Shipping Act 998
,, on the High Seas, tried under Merchant Shipping Act 994
,, tried within Jurisdiction of Admiralty, Old Act 703
Offender under Behring Sea Award, Arrest of 923
Offenders and King’s Commission 704
Oﬁ'ice of Lieutenant-Governor, Dismissal from . .. 28
Ofﬁcers Appointed by Ontario and Quebec 542
,, Executive Powers of 543
,, New 541
,, (Provincial) Salaries 123
,, Transfer of, to Canada 541
Old Act, Power of Province as .to 74, 537, 1043
,, Acts, Appendix A 556
,, ,, Summary of 212
,, Bankruptcy Laws Examine 304
,, Boundaries of Quebec 556
,, Calabar, Appeal to Privy Council . 1014
,, Provinces of Canada .. 4
Ontario, Act imposing Restriction on Brewers not ultra vic'es 55
,, and Money Bills 41
,, ,, Quebec Clergy Case 275
,, ,, ,, Consolidation of 4
,, ,, ,, First Meeting of Legislatures 38
,, ,, ,, Debts 532
,, Appeal from 396, 1013
,, Appointment of Att.-General for 542
,, Assemblies, Yearly Session of 4o
,, Assets 532
,, Assignment and Insolvency Act .. . _ 78
,, Barrister refused to be allowed to Practise 420
,, Company in Liquidation 88
,, Districts returning M.P. H.C. Canada 17
,, English Solicitors 721
,, Executive Council .. .. 30
,, Grant to 534
,, Jurisprudence 399
,, Legislative Power 35
,, Legislature, Continuance of Laws 39
,, License Laws 1042
,, Limits 6
,, Liquor Law of 1890 Examined 1064
,, Members of H.C. Canada 16
,, Number of Legislative Members 35
1136 INDEX.
Ontario—cont. - PAGE
,, Penitentiary .. ,, Representatives in Dominion H.C. 4
,, Right to Timber growing on Indian Reserves 100
,, Seat of Executive Government 35
,, Senators 13
,, ‘ Speaker of Legislative Assembly, Election of 40
,, Supreme Court i 396
,, Temperance Act and Canadian, Similarity 153
,, ,, ,, ,, Dominion Temperance Act 161
,, Validity of Dissent to Acts of 42
Opinion of Canadian Minister on Aliens holding Land in Manitoba... 101
,, ,, ,, ,, on Chinese Immigration 64
,, ,, ,, ,, on Criminal Law 107
,, __ ,, ,, ,, on Disallowance of Provincial Acts 337
,, i ,, ,, ,, on Dominion Disallowing Acts 8, 42, 51
,,~ ,, ,,I ,, on Exclusion of Chinese and Indians Franchise 100
,, ,, ,, ,, on Fines on Judges 394
,, ,, ,, ,, on Fisheries 74
,, ,, ,, ,, on Forging Ballot Paper .. 107
,, ,, ,, ,, on Freight Act of Nova Scotia 71
,, ,, ,, ,, on Incorporation of Association 42
n ,9 as 9, on Languages Of Bar ... ... ... ,, ,, ,, ,, on Liquor Laws 163, 164
a‘ n u a, 7'3 Manitoba .831‘ H. ." ... ... ,, ,, ,, ,, on‘New Brunswick School Question 33
,, ‘,, ,, ,, on ‘N ova Scotia Liquor Law 126
,, ' ,, ,, ,, oniPaying Fines 485
,, ,, ,, ,, on Power of Local Legislature and Fines 324
,, ,, ,, ,, on Provincial Act dealing with Weights, &c. 76
,, ,, ,, ,, on Provincial Bar ' 35, 334
,, ,, ,, ,, on Provincial Legislature Passing Act as to
Liquidated Damages 108
,, ,, ,, ,, on Registration of Births 69
,, ,, ,, ,, on Removal of Lieutenant-Governor 28
,, ,, ,, ,, on Rights and Privileges of Provincial As-
semblies 11,12
,, ,, ,, ,, on Salary of Judges 389
,, ,, ,, ,, on Separate Schools 338
,, ,, ,, ,, on Solemnization of Marriage Laws 253, 254, 255
,, ,, ,, ,, on Stamp Fee 120
,, ,, ,, ,, on Tidal River Navigation 71
,, ,, ,, ,, on the Provinces Naturalizing Aliens 101
,, ,, ,, ,, as to Sittings of Court and Rules 325
,, ,, Court in Special Reference Cases 401
,, ,, Imperial Law Oﬁicers on Schools in New Brunswick 335
Opium, Power to Prohibit Sale of 199
Oporo, Appeals from _ 1014
Option, Local, Argument that Canadian Temperance Act was Local... 134
Order in Council, allowing Appeals on Conditions 423
,, ,, ,, and Disallowance of Bill 26
,, ,, ,, giving Eﬂ‘ect to the Judgment in the Liquor Prohibition Case 1074
,,i ,, ,p, on Liquor Law, 1883 158
,, ,, ,, Rewinding, allowing Appeal ' 430
Ordinances, Old, of Quebec i 563
,, French, of 1731 257
,, of Louis XV. Examined i 245
INDEX.
1137
Ottoman Dominions, Appeal from. See Turkey
Overlapping of Legislation Considered Owner of British Ship. See Merchant Shipping Act.
Oyer and Terminer and Prerogative of Crown
4,
Pagodas, Value of...
Panorma, Appeal from
Paper Money Paragraph in Citizens’ Insurance Company 0. Parsons dissented from
Pardon, Power of, Reference to, by Gwynne, J
Paris, ’l‘rea-ty of Parish Courts
,, Schools of New Brunswick
Parliament as a Court of Record
0.‘
,, of Canada and Deputy Speaker ,, ,, Appropriation of Public Funds
,, .. Composition of
Dufferin, Lord, and
Exclusive Authority of Laws for Agriculture and Immigration
Lieutenant-Governor’s Salary
Limitation of the Power of
Payment of Judges Privileges, Powers, and Immunities of
Protection of Fisheries Provincial Liquor Laws
Representation of New Territories in
,, ,, Seised of the Jurisdiction
,, ,, Western Lakes and
,, ,, Yearly Session of
,, Delegation of Powers
,, Existing, and Adjustment of Representation
,, How First Called Together
,, of Ontario, First
,, . of Paris, Jurisprudence of
,, Powers of
,, Protection of Persons Publishing Proceedings
Parliamentary Privilege and Libel Parsonages to be Erected, Old Law ..
Particulars absent, doubtful it Leave granted to Appeal Parties, Judicial Committee may direct other Parties to intervene
Party in Power, to them Governor-General is bound to give his Conﬁdence
Patent Laws a Matter of Policy
Patents Patterson, J ., on Parliament of Canada Legislation
Payment of Governor-General ,,
,, to Provinces, Form of Payment .
Peace, Order, and Good Government, Phrase examined
,, Laws for
,7 i,
S 2340.
61,151,1042,1067
Competency of Dom. to alter Criminal Law 45
.. . 129,140,1043
PAGE
. 1013
210
33
1010
1014
. 74
. 1066
169
391
.H 347
. 1079
1003
486
11
30
44
389
30
800
394
11
72
129,140
799
189
74
12
131
24
22
256
43
. 12
36,1079
585
443,444
95,460
30
90
88
321
3
534
1138
INDEX.
PAGE
Peacock, Sir Barnes, on the Phrase commencing “ Notwithstanding” 155
Pedlars and Hawkers, Prohibition of . . 1075
Penalties and Dominion Legislation 68
,, and Forfeitures, British Court and Dominion Act 107
,, Hard Labour for Selling Liquor without License 144
,, for Piracy of Copyright 863
,, for Selling Liquor without a License 126, 144
,, Imprisonment, &c., Imposition of 324
Penalty added to Tax not Interest 75
,, on Fraudulent Traders in Canada .. 88
Penitentiaries 108, 545
Pensions to Colonial Governors 743
Perjury, Appeal from Finding of 415
,, Punishment for, in Dominion 107
Persia, Appeal from ' . 1013
Persian Gulf, Appeal from .. , . 1013
Petition, Election, and Judicial Committee 19, 40, 308, 313, 314
,, of Doleance 408
,, of Rights 495, 526
,, Petition to Appeal, Time 1008
Phwnix Island, Appeal from... 1014
Phrase “ All matters,” &c., sec. 91 B.N.A. Act, Explained . 1067
,, commencing “Notwithstanding anything,” &c., Sir B. Peacock
on o o I o n I o o I I I O I l
,, Dominion Parliament ﬁrst occupying the ground
,, Dominion’s inclosure fenced in . . .
- ,, Federation Act exhausts whole range of legislative power
,, General scheme of the B.N.A. Act
,, In or for a province ,, Language read together and modiﬁed to agree, ,, of Selborne, Lord, on Jurisdiction of Dominion and Provinces
' ,, on what was clearly local and private
,, Peace, order, and good government
,, Promotion of public order, safety, and morals
,, Property of the Dominion ,, Raising of money by any system of taxation, direct or indirect
,, Settlement and Immigration of Land .
,, Straining them to their widest conceivable extent
' ,, Trench upon the exclusive authority of Parliament
Physicians, English, in Canada ..
Pilotage, Sec Merchant Shipping Act.
Plenary Authority bestowed on Provincial Legislatures ' ,, Powers of Legislatures .
,, ,, of Provinces Plenum Dominium in Crown in Indian Lands Poison, Power to Prohibit Sale of
Poisonous Drugs, Sale of, Considered...
Police of Fisheries .
,, Magistrate, Appointment of
,, Power wholly with Provinces
',, Regulations, Provincial Legislation
., Regulation and Keeping Open on Sundays Policies of ‘Life Insurance in the Colonies
,, of Insurance and Interim Notes
,, Tax on, ultra wires ..
Policy of Great Britain and US. before Separation
44, 155, 1068
147
.H 54
119
131
124
48
85
61
132
97
67
99
55
107
420
142
22, 50
109, 1079
96
199
133
73
324
188
104
125
839
271
68
64
INDEX. 1139
PAGE
Political Arrangements included in Trade and Commerce 55
,, Friends and Governor-General 30
,, Organization and Sovereignty 27
Poor Rate, Special Leave allowed 431
Population and Representation in H. of C. 23
Port Phillip, Old .. . 1009
Possessions of the Queen and her Prerogative 31
Postal Service I . 69
,, . ,, in the Dominion 486
Power Distribution of 43
,, Executive, of Canada 7
,, Legislative, Ontario 35
,, ,, Quebec 35
,, Negative Restriction 50
,, - of Canadian Parliament 11, 822
,, of Colonial Legislatures 22, 71, 107 9
,, ofDominion 152
,, ,, and Provinces Prohibiting a Trade 58, 1075
,, ofParliament 43
,, of Governor-General 8
,, of H.C. England and Colonial Legislatures 13, 1079
,, of Lieutenant-Governors of Quebec and Ontario 32
,, of Municipalities 202, 1042, 1075
,, of Provinces, Lord Selborne on 44
,, of Provincial Railway to Cross Dominion Railway 233
,, ,, Legislature 71
,, of Quebec Legislature, not merely a nude Power 36
,, of Sovereign and Governor 10
,, Regulation and Prohibition 61, 107 5
Practice, Canadian Solicitors Practising in England 719, 821
,, Suspending from, Advocates 414, 420
,, \Vords as to Education 370
Precedence of Counsel, The Batonnier 35
,, of Queen’s Counsel 7, 11, 35
Pre-eminence of Dominion 261, 1042
Pro-existing Powers of Governor and Lieutenant-Governor of Quebec and
Ontario Preserved 33
Preference by Insolvents, Act as to 78
,, Payments to Crown and French Law 32
Prerogative and Commissions of Oyer and Terminer 33
,, Allowing an Appeal .. . 34, 307, 410
,, of Crown 284, 309, 409
,, of the Crown and Election Petitions 40
,, ,, and Criminal Cases 34, 109, 409
” ,, to Appeal 476
,, of Mercy 327
,, of the Queen in each Province. 1
,, ,, when not Limited 31
,, Power and Lieutenant-Governor 28
,, to Deprive the Crown of its, the Legislation must be Irre-
sistible 33
Preservation of Good Order, Provinces may make Reasonable Police Regu-
lations 161,1043
Presumptions, none that Dom. Leg. has Exceeded its Powers 19
Prince Edward Island, Appeal to RC. 396, 1013
H ,, ,, Act Disallowed 71
402
11 10 INDEX.
Prince Edward Island—cont. PAGE
,, ,, ,, Admitted into the Union .. 5
',, ,, ,, Alewives Fisheries 74
,, ,, ,, Barristers and Solicitors... 721
,, ,, ,, History 5
,, ,, ,, Intestate’s Estate 568
,, ,, ,, Judicature 402
,, ,, ,, Public School Act 338
,, ,, ,, Representative in H.C. 4
,, ,, ,, Senators 13
Prince of Wales Island, Appeal from _ 1013
Principle of Canadian Constitution 1
,, of Construction Pointed out in Parsons’ Case 131
Priority of Crown over other Simple Contract Creditors 31, 293
Prisoner Appealing, and Release of same 417
Prisoners, Removal of, from one Colony to another 841
Prisons, in sec. 91 123
Printed Appeal Cases. See note 1041
Private and Local Act, what necessary to show by Dominion 43
,, Land and Inspector of Fishing 74
Privileged Communications, Special Leave to Appeal 436, 456
Privileges as Regards Education 332
_., Immunities, and Powers of Canadian Parliament not to Exceed
those of Imperial Parliament 11, 555
,, of Assembly, Quebec 12, 36
,, of Canadian Parliament 822
,, of Crown to Prior Payment 288, 293
,, of Dominion Parliament compared with Victorian Privileges 12
,, of Nova Scotia Assembly 1079
,, to U.S. Citizens 806
Privy Council, Appeal to 396,891, 1008
,, ,, Damages 440
,, ,, Leave to Appeal to 144, 416 et seq.
,, ,, of Canada, Chosen by Governor-General 8
,, ,, See Special Leave in Appeals.
Prize Courts, Establishment of 926
Probate Courts Judges .. 389
Probates Granted in British Possessions 903
,, in Newfoundland, Old Act 630
,, Production of, in England 839
Procedure Code, Main Principle of 291
,, Jurisdiction in the Provinces i 308
Proceedings in Local Parliaments, Protection of Publishers of 12
Proclamations after Union 544
,, before Union Saved 544
,, Declaring Union 3
Product ofTaX 155
Professional Practice in Canada 420
Proﬁt and Loss, Meaning of 75
Prohibition . . 42, 1042, 1075
,, Act, in Russell 2). Reg. 148
,, Against Hearing Action 161
,, and Licensing, Meaning of each 190
,, and Regulation... .. . 1075
_,, as to Liquor Sales in Nova Scotia, Quebec, Three Rivers, Upper
Canada 163
,, by Provinces ... ... 58
INDEX.
1141
Prohibition—cont-
,, Cases in US.
,, ,, no Guide for Canada
,, Catching Seals, Argument
,, Conditional . .
,, Liquor Case
,, of all Liquor Traffic
,, of Manufacture, Strong, C.J.
,, of Printing English Copyright Books in Canada
,, of Sale of Goods ..
Prohibitory Measures, Ratepayers deciding
Promissory Notes Promotion of Railway
,, of Temperance Proof of Provincial Tax ..
Properties, Assets between Upper and Lower Canada Settled by Arbitration
Property and Civil Rights, sec. 92 and Sale of Liquor Contrast with Patent Legislation
Controlled by Regulation of Commerce
,, Examined . .. .
Explained ... ...
in Quebec, Rules of French Law
,, and Dominion Legislation
,, and Life, Provinces can Legislate to Protect
,, as Distinct from Regulation of Fishing
,, Disqualiﬁcation of Senator
,, in British Possession and Finance Act
,, in Subject, and Power to Legislate for
,, of Fish in Great Lakes
,, of, Phrase Explained
,, Public Debt and
,, Taxation by Municipalities
,, Transferred from Provinces to Canada
Propositions of Confederation .
Prosecuting Appeal, Time Prosecution of Oﬁ‘ences under Merchant Shipping Act in the Colonies
Protection of Salmon Fishings ..
,, in’ the Colonies of Copyrigh ed Works
Protestant Clergy, Support of .. Protestants and Education Province and Turnpike Road Trust
Provinces and Crown ..
,, ,, Dominion, Beneﬁcial Interest of the Crown in all Lands within
its Boundaries
Co-ordinate Authority
Distribution of Powers between
Double Legislation Incorporating the same kind of Company
,, ,, ,, Marriage and Divorce
PAGE
126, 225
63, 238
133, 140
926
... 99
73
97
52
75
486
321
410
998
72
853
559
332
529
31
98
l, 293
43
50,165
46
48
,, ,, Land Companies ...
,, ,, Land for Agriculture and Immigration .. . ,, ,, Liquor Licenses, Nova Scotia Act
,, ,, Prerogative of Queen
,, ,, Naturalization
,, Autonomy of ,, Census of, to be distinguished
243
389
126
l, 293
101
1, 31, 293
7
11412
INDEX.
Provinces—cont
!,
PAGE
Common Interest 1, 293
Creating Courts ‘ 320
‘ Credit of . 123
Disallowance of Acts . . . . . . . . . 9
Dominion and Municipal Institutions, Rights debated 125
Executive Power 27
Exclusive Powers in, Lord Selborne 44
Federated with Common Independent Interest 1, 293
Forming New 3
in Canada, Establishment o r— 799
Independence of 1, 293
Legislate as to Dangerous Establishment 104
Legislative Assembly, Summoning 38
Legislature, Power to Amend 111
Privileges of Assembly . 36, 1079
“Property of,” Explained 97
Repealing Act affecting two 273
,, Territories outside 3
Provincial Act and Dominion Repeal of same .. 1070
and Dominion Character of Lieutenant-Governor clashing 42
Act and a Local matter 157
,, and Local Associations 44, 330
,, to carry out Dominion Act, Validity of 65
,, and Obstruction to Navigation 66
,, as to Railway beyond Boundary 67, 225
,, Repeal of .. .. 1042, 1070
Acts and Imperial Acts 32
,, and Governor-General 51
,, declared ultra vires 33
,, Validity of 48
Bankruptcy Law 78
Bar 393
Bills, Provincial Associations created by 42
Bills and non-assent .. ...41, 42
Company, Incorporated by Dominion 45
Companies, Incorporation of 234
Consolidated Revenue Fund 536
Constitutions 27
Courts 308
Criminal Law and Liquor Laws 134
Debts and Assets 526
Districts for Election of Members of H.C. 17
Ferries 74
Governments not subordinate to Dominion 31, 293
,, Right of Payment before other Creditors 31, 293
Jurisdiction, exclusively assigned 20
,, over Liquor Laws 162, 1042
Laws and Dominion Laws 235, 1042, 1064
,, ,, ,, Remedial Acts . 334
,, ,, Election Petitions, Hearing 40, 308
,, ,, Insult to Members of House of Assembly . 1079
,, ,, Sale or Storage of Gunpowder 104
,, Insalubrious Establishment, Power to Regulate 104
,, of Bankruptcy, Validity of 303
,, Limiting Licenses 66
,, Marriage Licenses 256
INDEX.
1143
Provincial—cont.
3,
Provision of Parliament of Canada applying to Legislatures of the Provinces 41
9,
Laws, Obstruction of River... ..
,, Protection of Fisheries ,, Railway Company
PAGE
66,71
4. 74
225,329
,, Sanctioned by Dominion Law, not a Delegation of Powers 103
Legislation .. . . . .
,, and Appeal creating Offences Misdemeanors
Criminal Law
Dominion P -
Forgery Imperial Legislation Prohibition of Sale of Liquor Salmon Fishing ..
,, as to Fines and Forfeitures
,, _ for Education
104, 132
405
108
107
210
4 107
. . 336
161
72
108
332
,, to Prevent Fraud in Trade, and Danger to Life or
Property ,, where no Dominion Legislation
Legislative Power strictly Limited
Legislatures and French and English Languages
,, ,, Imperial Power
,, ,, Mandates from Imperial Parliament
,, ,, Recovery of Debts
,, Delegating Authority to Commissioners
,, ,, ,, Municipalities
,, have a concurrent Power in Taxation
,, Sale of Arms
,, Status of
,, Their True Character
License for Gun Liquor Law and Canadian Temperance Act, in same Province
Objects, Boom in River ..
,, and Incorporation of Companies Oﬂicers’ Salary
Plenary Powers
Power of Taxing Deeds
,, to Repeal Acts ,, to Tax Capital of Banks
Powers, How to Examine ..
,, not to be Absorbed by Dominion
to Revive Old Acts...
,, under sees. 13 & 16, 92
Property Public Debts, Interest on
Purposes, Taxation Railway
,, becoming a Dominion Railway
Revenues, Raising Reformatories and Prisons Representation in H. of C., Adjusted every Ten Years ..
Repeal of Old Act
Revenue Right to Crown Lands in Province
Tax on Dominion Oﬁicer
made for Admitting other Provinces
106
44
334
542
50
142
78
138
70
53
.h 133
1,293
142
146
104
66
2
123
293
.n 120
384,1043
75
50
.u 48
74,1042
46,1069
533
435
113
225
111
.H 126
.u .123
.n,. 23
. 230
2122
94
7O
2, 799
1144 INDEX.
Provision—coat.
,, Similar, in Provincial and Dominion Act
Proviso saving Prerogative Public ‘and Right to Fish ..
,, Danger and Carriage of Arms ,, Debt and Property I
,, Funds and Appropriation by Parliament...
,, Harbours, Fish in ,, Lands, Management and Sale of
,, ,, of Canada and Taxation
,, ,, Sale of ,, Legislation and Provincial distinguished...
,, Money in Banks ..
,, Morality, General Laws on this subject in Dominion
,, School Act of Manitoba
9) n n a, a, analysed-
,, Service, Provincial Revenue Fund
,, Works Loan of Canada ,, Wrongs and Nuisances, Power to pass Laws
Punishment by F ine, Penalty, or Imprisonment
,, for Contempt by Assembly
,, for Selling without License . ..
,, of a Criminal Nature for Breach of Liquor Laws
,, on Prisoners tried in Colonial Courts
,, Wrong, inﬂicted, Appeal Purchase of an Island, Provincial or Dominion Act
,, of Indians’ Land, Requisites... .
Q
Qualiﬁcations of Legislative Councillors of Quebec
,, of Senator Quarantine and Marine Hospitals
QuebecaProvince ,, and English Solicitors ,, and Ontario Records .. .
Consolidation of . .
Use of Old Names in Documents ,, ,, Debt ,, Appointment of Att.-Gen. for ,, Appeal to RC. from ,, Assets
,3 9’
S, 2,
,, Assembly, Constitution of
,, ,, and Punishment for Contempt
,, Continuance of Legislative Laws
,, Conquest of...
,, Counsel, the Batonnier ,, District for returning M.P., H.C. Canada
,, Duration of Legislative Assembly of
,, Election of Speaker of Legislative Assembly
,, Executive Council
,, First Meeting of Legislature of
PAGE
50
83
73
146
... 52
486 '
.n 73
.n 123
535
123
.U 72
31,233,293
103
333
330
536
.H 309
52,104
.u 324
35,1079
123
102
320
414
307
93
37
13
71
3
721
545
4
544
532
.n 542
397,1013
532
33
35
39
4
35
.u 17
.H 39
40
30
33
INDEX. 1 145
Quebec—com. PAGE
,, French Language 4
,, History of ... 95
,, Judges 393
,, Law and Company Incorporation 235
,, ,, of Municipalities 201
,, ,, Prerogative Questions 40
,, Legislative Council of 36
,, ,, Councillors, Qualiﬁcations of 37
,, Legislature, Voting in . .. 37
_., ,, Power 35
,, Limits 6
,, Liquor Laws .. 163
,, Local and Private Act 43
,, Money Bills 41
,, Penitentiary 5'15
,_. Priority of Crown in, as to Simple Contract Debts 31, 283, 293
,, Prohibition of Liquor Sales 163
,, Quorum of Legislative Council... 37
,, Representatives in Dom. H.C. ... 4, l6
,, Resolutions... 746
,, Seat of Executive Government... 35
,, Senators 13
,, Speaker of Legislative Council... ... 37
,, Tax on Bank’s Goods 68
,, Taxes ... 32
,, ,, Ontario Funds 122
,, Townships 545
,, Vacancy in place of Councillor of 37
,, Voting in Legislature . . 37
,, Yearly Assembly 40
Queen and Governor-General . ., 7
,, and Her Heirs, Act extends to 2
,, and Lieutenant-Governor .. . .. . 7
,, Provisions as to, in Dominion Act 2
,, Senate, and House of Commons, Canada, to make Laws for Peace,
Order, and Good Government _ 43
,, the, Executive Authority over Canada 7
Queen’s Counsel and Precedence 7, 35
,, Direction Necessary to the Summoning of Additional Senators l4
,. Privy Council of Canada .. . 8
,, Representative, the Lieutenant-Governor is .. . 27
Queensland 1009,1013
Question as to Qualiﬁcations or Vacancy in Oﬂice of a Quebec Councillor to
be heard by Legislative Council 37
,, between Governor-General and Lieutenant-Governor, Proper Tribunal
to Decide 29
,, to be considered between Dominion and Provincial Acts 132, 135
,, to Judges in Liquor Prohibition Case and Answers of RC. 163, 1074
Quorum of House of Commons 23
,, Legislative Council, Quebec 37
,, of Senate... 16
1146 INDEX.
R
PAGE
Railways, Mines, and Minerals 123
,, and Steamships 224
,, becoming Dominion’s . . . - . . . 111
,, on Foreshore 306
,, beyond Province 67, 225
Raising Money by any Means 66
,, ‘ of Money in Dominion and Provinces 48
,, ' Revenue by Licenses 126
,, ,,‘ Provincial Powers 67, 225
Rangoon, Appeal from. See Burmah 1011
Ratepayers Sanctioning License 162
Ratiﬁcation of Colonial'Act 410
Rebellion in Lower Canada 4
Recall of Governor by the Crown 28
Receipts, Warehouse, sec. 19, sub-sec. 15 75, 296
Record, Court of, Parliament 36, 1079
Records, Delivery to Quebec or Ontari . .. - 545
,, ' of Canada and Reserved Bills 27
Red River Settlement, Rupert’s Land 5
Reduction of Representation in H. of C. 24
Reference, Special, to Courts -‘ 401
,, of Constitutional Questions, Supreme Court 395
Referring Case back to Court below . .. ' 466
Reformatories and Prisons 123
Register of Members of Companies in British Colonies 837
Registrar of Colonial Court, Duty to send Record on Appeal 1008
Registration of Foreign Degrees .. 886
,, Paper, Defacing, Provincial Law , 107
Registry of Ships in the Colonies. See Merchant Shipping Act.
Regulate a Trade, Extent of Power 1075
Regulation of Dominion Licenses 145
,, and Acts, 1883—4 148
,, assumes Conservation 1069, 1075
,, and Prohibition Cases in US. 58
,, ,, not Synonymous 55
,, of Commerce, used Imperially 591
,, of Trade and Commerce . 52, 151
,, ,, and Commerce, Warehouse Receipts 75
,, ,, and Shop Licenses 150
,, Provincial Taxation 55
,, Sale of Intoxicating Liquors, 2nd Part of Canadian Act 130
,, U.S. 66
Rejected Bills, Rc-introduction of 42
Religious Rights, History of 4, 559, 585, 695, 710
,, Teaching and Denominational 363
Remedial Laws, in Education Questions, by Dominion Parliament 334
Removal from Office of Lieutenant Governor 7' 29
,, of Criminal Lunatics .. ' 841
,, of a Member by the Legislature of New Brunswick ... 5
,, of Prisoner f 758
INDEX.
1147
Removal—cont-
,7
Renunciationv of Original Nationality
Repeal of Acts by Provincial Legislature
’’
Itepres
of Privy Councillor
of Speaker of H.C. Canada
of Acts, Strong, J ., on
,, Requisite
of By-laws -
of Parts of RNA. Act, 1867
of Provincial Act of Provincial Acts by Dominion .
entation H. of C. Adjusted every Ten Years
,, Increase of, in H. of C. ,, of New Territories in Parliament of Canada
,, of the Provinces in the Senate
Representative Government, Earl Grey on
,, of the Crown, Lieutenant Governor
Reprint of English Books in Canada ..
Repug'nanoy of Provincial Act Requisites for Dismissal of Lieutenant-Governo
Rescinding O. in C. allowing Appeal .
Order for Special Leave when Appeal not proceeded with
Reserved Bill, Old Procedure ..
)’
Bills for Queen’s Assent
Reserves, Indian Residence constituting Domicile for Divorce
Residential Disqualiﬁcation of Senator
Resignation of Ministry if Disapprove of Bill
of Senator . . .
Respondents, Direction that Others may Intervene
Restraint on Sale of Liquor ..
Restriction of the Liquor Traffic
7,
,,
Retail,
on Brewers
of Chinese Immigration
, on Generality of Terms
and Commerce License, 85c.
and Wholesale
Returning Fugitive
Reunited Canada Revenue and Appropriation
i,
and Duties .. Canadian Temperance Act not a Fiscal Law
from Saloons . ..
Fund, Creation of ..
,, of Provinces Raising, for Provincial Purposes
Vested in Crown ‘
,, Rights and Privileges as regards Education ..
7,
,, of Denominational Schools at the Union
Immunities, and Privileges of Assembly in Schools prejudicially Affected
of Appeal, Summary of Cases
'of Indians
- of Unity of Empire Children
198, 739, 1043
PAGE
8
16
100
...366,334,1043
166
93,1043
126
745
739, 1043
. 1070
91
28
430
122
580
26
94
448
15
42
15
95
102
166
55
63
43
166
151
828
663
25
483,484
132
150
483
536
113
295
332
347
36,1079
375
410
96
4
Ritchie, C.J., Contrasts Federation of Canada with U.S.
in Severn u. The Queen
on Interest
60
52
76
INDEX .
‘Ritchie, C.J.—cont. PAGE
,, on Lands Property of Province 72
,, on Powers of Dominion to Settle Affairs of Insolvent Bank 86
,, on Prohibition 307
River Act allowing Obstruction to Navigation 66
Rivers in Provinces and Fish 72
,, Obstruction in 73
Rod Fishing and Dominion License 74
Rodosto, Appeal from . 1014
Rodrigues . 1013
Roman Catholics and Education 332
,, ,, > and New Brunswick School Act 338
,, ,, from the Conquest of Quebec Free 4
,, ,, Religious Rights, History of 4
,, ,, School in St. J ohn’s 348
Royal Assent and Reserved Bills 26
,, to Bills 26
,, to H. of C. Money Votes 25
Royalist in Canada 4
Royalties and Escheats . . 99
,, and Provincial Right 499, 513, 517
Rule Ejusdem Generis .. . 52
Rules of Colonial Admiralty Courts .. . 893
,, to be observed in Sanctioning Provincial Acts 51
Rupert’s Land Loan . . 762
,, into Union 547
,, Part of North-West Territories 5
Revoking Letters Patent 460
S
Safety and Order .. 133
St, Andrew Roman Catholic School 348
St, Christopher, Appeal from 1013
St, Helena, Appeal from . 1013
St, John’s Roman Catholic School 348
St, Lucia, Appeal from . 1013
St, Stephen’s Roman Catholic School... 348
St, Vincent, Appeal from . 1013
Salary of Governor-General 485
,, of Judges 394
,, ,, Additions to 390
,, of Lieutenant- Governor 30
,, of Provincial Oiiicers 123
Sale of Arms, Prohibiting 133
,, of Goods, Prohibiting 178
,, of Liquor, Provincial Prohibition 162, 1042
,, or Storage of Gunpowder, and Provincial La 104
Salmon Fishing . 72
Saloon, sec. 92 126
,, Licenses by Dominic 145
980
Salvage for Saving Life
INDEX. 1149
PAGE
Sanction, Imperial, to Canada Act 93
,, of Ordinances .. 4
,, of Governor-General to Bills he Considers Unconstitutional 43
Sanctioning Provincial Acts, Rules .. . 51
Santa Cruz Island, Appeal from .. 1014 '
Sarawak (Borneo) Appeal from 1013
Saving Life, Salvage for 980
Scheme of B.N.A. Act 168, 1042, 1070
,, of Canada Temperance Act, 1886 1064
,, of secs. 91 & 92, Lord Selborne on 44
Schools Acts of Manitoba Compared 377
,, and the Bible 351,354
,, Protestant, Roman Catholic, and Dissentient 333
Scott Act, Russell’s Case 188
Sea Coasts 71
Seal, Great, of Quebec, when used 36, 37
,, ,, of Canada 543
,, ,, of Four Provinces 543
,, ,, of Nova Scotia . 543
Seamen, Engagement of, in Colonial Ports 936
Seas, Azoﬁ; Adriatic, Egean or Black Sea, Mediterranean, Appeal from 1014
Seat of Government, Canada . .. 11
Seats of Executive Governments 35
Secretary of State, and Advice to Governor-General 43
sectarian Majority 363
,, v Schools, History of, in Canada 341
,, Teaching 350
Security for Costs in RC. 122
,, ,, in Indian Courts 436
,, ,, in Ontario 400
,, ,, in Quebec 397
,, ,, in the Court below and Appeal 436
Sedgewick, J ., on Scope of Words “Municipal Institutions ” 187
,, on the Union 180
Seignorial Tenures Abolished 4
Seizing Salaries of Dominion Officials 70
Seizure of Ship under Behring Sea Award 912
Selborne, Earl, on Direct and Indirect Taxation 119
,, ,, on Duty of Judges 390
,, ,, on Jurisdiction of Dominion and Provincial 48
,, ,, on see. 92, sub-sec. 16 85, 330
,, ,, on secs.102 and 126 536
,, ,, on Phrase, Generally all matters of a local or private nature 44
,, ,, on sees. 91 and 92 ...19, 43
Selection of Judges... 391, 393
Self Government and Sovereignty 27
Selling and Keeping Open ... 125
,, Liquor without a License 123
,, Liquor on the Premises 158
Senate and Money Bills 25
,, and New Territory .. 555
,, H.C. and Members, Privileges, Powers, and Immunities Deﬁned 11, 1079
,, Representatives in, from Ontario, Quebec, and Maritime Provinces 13
,, Questions as to Qualiﬁcation of Senator, or as to Vacancy 16
,, Quorum 16
,, Vacancy in, how ﬁlled 16
1150 INDEX.
Senate—comf-
,, Voting in Senator Age of ,, Appointed for Life Senators and Legislative Councillors of Quebec, Same Qualiﬁcation
,, and Legislative Councillors, Nova Scotia and New Brunswick
,, Disqualiﬁcation of ,, First, were Summoned by Queen’s Warrant
_ ,, for Quebec, Property Qualiﬁcation .
,, How - Summoned .
,, Nominated for Life
,, Number of ,, of British Columbia
,, of Manitoba
,, of New Brunswick ,, r of Nova Scotia
,, of N orth-West Territories
of Prince Edwardlsland
,, of Quebec, how Appointed
,, 9 Property Requisite
,, Resignation of ,, Qualiﬁcation of ..
,, Sitting in Canadian H. of C.
,, - Summoning Additional,
,, Votes Equal, Negative has it
Sentences Imposed by Colonial Courts
Separate Schools -> -. Service of Lieutenant-Governors, Length of
Session of Canadian Parliament a Yearly one ,, > of Legislative Assemblies, Yearly Sessional Papers, Publication of, and Protection of Persons
Settlement of>Crofter Loan - . .
,, of Country,-Land Ceded for Settlement, Meaning of
severing of Quebec and Ontario Severn-‘s Case- .-
Seychelles, Appeal from
Shanghai, Appeal from
Sheriﬁ', Right of Ship, &c. See “ Merchant Shipping Act.”
Shipping and Navigation ,, Merchant, Act, Summarized
Shop, Raising a Revenue from
,, License by Dominion
,, Saloon, Difference between Licenses
Siam, Appeal from Sierra Leone, Appeal from Singapore, Appeal from. See Straits Settlements
Sittings of Supreme Court skimmed Milk and Dominion Legislation SlaveTrade and Colonial Admiralty Courts Smith, Sir Montague, on Laws for Peace, Order, and Good Government
on, Regulation of Trade followed
on Russell’s Case .on the Scheme of the B.N.A. Act
” .,, on Trade and Navigation Soeage Laws . Society in Embarrassed State
PAGE
16
13
15
37
537
15
14
14
14
15
12
13
13
13
13
13
13
13
13
15
13
17
14
16
820
333
.H 4,28
12
40
12
900
99
4,3
52,127
. 1013
. 1013
78
70
927
150
145
145
. 1013
. 1013
. 1013
395
323
897
62
65
146
47
.u 55
561,589
330
INDEX. - 1151
. PAGE
Solemnization of Marriage and Divorce, Sub-sections compared 48, 151
Solicitors and Appeal to PC. 420
,, and Practice in Canada 721
,, Relief Act 840
,, Roll Act _. 888
Solomon Island, Appeal from 1014
South Australia, Appeal from 1.009
Sovereign Power in Governor 10
Sovereignty and Political Organizatio 27
Speaker, Absence of 23
,, Appointment of 16
,, Deputy 23, 555, 1003
,, Election of, by each H. of C. 23
,, of H. of C. to have a Vote only when voices equa 23
,, of Legislative Assembly, Old Act 727
,, ,, Election of 40
,, ,, Quebec 37
,, Removal of ,16
Special Law of the Dominion 112
,, Leave to Appeal, Accounts 474
,, - ,, ,, - Accuracy of Statements of Fact to P.C. 430, 431
,, ,, ,, Actions depending on Result of Appeal 445
” H. ,, Advocate Disbarred .. . 420
,, ,, ,, Allowed 449
,, ,, ,, . By-law 463, 481
s, ,, ,, Argument on 426
,, ,, ,, Challenge of Jury 418
,, 3 ,, Code 3. .u .u u. .n 464
,, ,, ,, Commissioner’s Decision 431
,,= ,, ,, Complicated Partnership 463
,, ,, ,, Conditions attached 434
,, ,, ,, Conﬂict between Codes 428
,, ,, ,, Constitutional Question not raised 47 8
,, ,, ,, Contempt Cases 414
,, ,, ,, Conviction for Perjury 415
,, ,, ,, Costs to be paid by Appellant i any event 428
,, ,, ',, Criminal Cases ' 412
,, ,, ,, Crown Appeal ' 476
,, _ ,, ,, Custody of Children 435, 436
,, ,, ,, - Debentures, Refused 480
,, ,, ,, Different Laws 453
n ,, ,, Divorce 434
,, ,, ,, Dominion and Provincial Railway Acts 459
,, ,, ,, Duty to apply for, before Case lodged 423
,, ,, ,, If a doubt entertained by Judicial Committee of
soundness of Decision appealed from 22
,, ,, ,, Election Case 18
',, ,, ., English Judgments 464
,, ,, ,, Escheat 449
,, ,, ,, Fines - 414
,, ,, ., Government Grant - 466
,, ,, ,, Grounds for, to be stated 449
,, ,, ,5 ‘ ' Imperial Act ... ... 452
,, v ,, \,, Insane or no 474
4,, ,, - ,, Insurance Cases 459
,, ,, ,, Judgment standing against Appellant 47 2
1152
INDEX.
Special—cont. PAGE
,, Leave to Appeal, Libel Case 417
,, ,, ,, Manager’s Duty 477
,, ,, ,, Matrimonial Questions 435
,, ,, ,, New Districts 440
,, ,, ,, not to be lightly granted 19
,, ,, ,, Obstruction of Way 464
,, ,, ,, Ontario Statutes 466, 467
,, ,, ,, Peril of the Sea 458
,, ,, ,, Point of Law: cannot Change Front and Rely on
Facts only .. .. 462
,, ,, ,, Poor Rate 431
,, ,, , Privilege 436
,, ,, ,, Proper Person not Appealing .. 478
,, ,, ,, Question of Access to Harbour, Refused 481
,, ,, ,, Refused .. 472
,, ,, ,, Riel’s Case 538
,, ,, ,, Rules of Court below 431
,, ,, ,, Suggested Application for Leave 423
,, Facts, Roman Catholic Schools .. . 348
,, Reference to SC. Ontario 396
,, ,, through a Secretary of State .. . 411
Speedy Trials Act 324
Stamp Act, Pure and Simple, by Provincial Legislature 127
,, Duty on Canadian Stock 811
Stamps not Direct Taxation 121
State, meaning of 27
Statement, False .. 107
Statistics and Census .. . 69
Status of Executor pending Appeal 436
,, of Provincial Legislatures 1
Statutes cited :— PAGE Statutes cited—cont.
25 H. 8. c. 19. . 1005 14 G. 3. c. 33. 4, e, 53
33 H. 8. c. 39. 402 c. 84. 772
8 El. 0. 5. 1005 ,, c. 88. 218, 654
13 El. 0. 4. ... 402 15 G. 3. c. 31. 594
7 Jas. 1. c. 2. . 771 ,, c. 53. 873
14 8t 15 Ch. 2. c. 13. 772 16 G. 3. c. 4. 402
10 &11 W. 3. c. 25. 6 ,, c. 52. .. 772
11 W. 3. c. 6. 771 17 G. 3. c. 57. 849,873
11 W. 3. c. 7. 704 18 G. 3. 0.12. 56
11 & 12 W. 3. (Ruﬁi) 771 19 & 20 G. 3. c. 29. 772
2 Ann. 0. 14. 772 21 G. 3. c. 70. . 1010
8 Ann. 0. 19. 847 22 G. 3. c. 82. .. . 1006
4 G. l. c. 9. 773 23 85 24 G. 3. c. 38. 772
5 G. 2. c. 7. 477 26 G. 3. c. 11. 402
8 G. 2. c. 13. 849, 873 ,, c. 26. 594
13 G. 2. c. 7. 771 31 G. 3.c. 29. 594
20 G. 2. c. 44. 771 ,, c. 31. ...4, 56, 397, 407, 513,
7 G. 3. c. 38. 849, 873 _ 651, 697
7 G. 3. c. 46. 591 32 G. 3. c. 2. 399
13 G. 3. c. 3. 402 ,, c. 43. e, 594
,, c. 25. 772 33 G. 3. c. 5. 399
,, c. 53. 409,1010 ,, c. 73. 3, 594,595
INDEX. 1153
S 2340.
Statutes cited—cont. PAGE Statutes cited—cont. PAGE
34 G. 3. 0. 2. (11.0.) 399, 402 4 86 5 W. 4. 0. 95. 1009
,, 0.3. 400 5&6W.4.c.65. 874
,, 0. 6. 82, 397, 399, 6 & 7 W. 4. 0. 59. 849
407, 420 ,, 0. 69. 874
35 G. 3. (P.E.I.) 0. 7. 402 ,, 0.110. 874
.. ((3.) 0. 8. 201,223 7W. 4. & 1V. 0. 28. 452
36 G. 3. (U0) 0. 3. 212, 222 1& 2 V. 0. 9. 4
.. (0.) 0. 9. 526 ,, 0.59. 846,849,850
,, c. 48. 772 2 82; 3 V. c. 53. 659
37 G. 3. (0.0.) 0. 6. 400 3 v. (0.0.) 0. 9. 222
,, ,, 0.12. 218 ,, ,, 0.20. 212,222
,, 0.142. 1010 ,, ,, 0.21. 222
38 G. 3. 0. 71. 849,851 ,, ,, 0.22. 222
39 & 40 G. 3. 0. 79. 927 - ,, ,, 0.23. 222
40 G. 3. (U.C.) 0. 1. 400 3 & 4 V 0 35. 4, 94, 566,654,
41 G. 3.0. 107. 847 659, 663, 697
43 G. 3. 0. 138. 594 ,, 0.78. 585,653,710
49 G. 3. 0. 27. 6,594,596,650, 4V-(C-)@-17-
526
627, 652 4 & 5 V. (U.O.) 0. 21. 222
50 G. 3. (0.0.)0. 6. 222 Y .. 0. 61. 849
54 G. 3. 0. 156. 847 5 82; 6 V. 0. 36. 525
56 G. 3. (U.o.) 0. 34. 222 ,, 0. 45....91,92,93, 697, 846,
,, 0.82. 901 849,850,853, 874
57 G. 3.0.51. 6 ,, 0.61. . 1009
58 G. 3. (U.o.) 0. 5. 222 ,, 0.120. 6
59 G. 3. (11.0.) 0. 2. 212 6 86 7 V. 0. 34. 702, 825, 826
,, (P.E.I.) 0. 3. 402 ,, 0.38. 902, 1007
,, 0.38. .. 6 ,, 0.75. 774,786
- 3 G. 4.0. 119. 605,650 ,, 0.76. 778, 786
4 G. 4.0. 71. 409 ,, 0. 94 743, 825, 1040
5 G. 4. 0. 67. 594,596, 627,654, 7 & 8 V. 0. 12. 846, 849, 872
1012 ,, 0.66. 772
,, 0.68. 6,649, 654 ,, 0.69. 702,902
6 G. 4.0. 50. 773 ,, 0.110. 278
,, 0.59. 595,596,605, 627, 8 V. (0.) 0. 45. .. 526
649,653 ,, ,, 0. 55. 526
,, 0. 67. 772 8&9V. 0. 93. 851
,, 0.75. 653 ,, 0.120. 786
7 G. 4.0. 64. 917 9 V. 0. 93. . 852, 853
7 & 8 G. 4.0. 62 346,653,694, ,, 8,114, 508
‘ 695 9 & 10 V. 0. 3. 80 10 V. 0. 1. (Ni) 6
9 G. 4.0. 51. 652 ,, 0.93. 464
,, 0. 83. 706.1009 1080 11 V. 0. 28. 849
98810 G. 4.0. 27.... 52 ,, 0,71, 514
10 G. 4. 0. 17. 6. 627 ,, 0. 83. 772
1 & 2 w. 4. 0. 23. 565 ,, 0. 95. 92,94,703,851,
2 & 3 w. 4. 0. 51. 902 852, 874
,, c. 78. 6, 627, 649, 654 12V. (0.) 0. 5. 530,531
,, 0. 93.... 1018 ,, (P.E.I.) 0. 9. 402
,, 0. 92.... 1005,1007 ,, (11.050.630.40 400
3 W. 4. (P.E.I.) 0. 11. 402 ,, (N13,) 0, 65. 341
,, 0.15. 874 ,, (G) c.81. 205, 212, 220, 1047
3&4W. 4. C. 27 ... ... 452 n ” c,87,s.5 ,,, 450
.. c- 41-
411. 415. 902. 12 8013 V. 0.21. 6
1006,1022 ,, 0.96. 703, 825,994,
,, 0.91.... 773 1039
4D
11541 innnx.
Statutes cited—com‘. 'I’AGE
13 V. (N.B.) c. 2. 341
13 & 14 V. (U.C.) c. 7. 222
,, 5.15. 1012
,, (0.) c. 27. H 201
,, c. 59. ,f .. 1009
,, (0.) c. 35. ' . . 222
14_& 15 V. c. 33._ .._. 707, 713
,, c. 83. 1007
,, c. 99. 825, 1039
15 &16 V. c. 12. 875
,, c. 26. 946
,, c. 39. _ 514
16 V. c. 21. _, 273
,, c. 183. 212
,, ((1)5. 134. u 221
,, (0.) c. 235. 523
13& 17 V. 5. 21. 4, 535, 353,394, 710
,, 0.85. . 1025
,, c. 107. 85, 852
17 V. c. 15. 161
‘Statutes cited—cont.
17 & 18 V. c. 104.—cont.
211, p. 942; ss. ‘212, 213, 221,
222, 223, 224, 225, p. 943; s.
226, p. 943; ss. 228, 229, 230,
.231, 232,234, 235, p. 944; s.
233, p. 939; s. 237, p.945; ss.
236, 238, p. 944; s. 239, p. 945;
s. 242, p. ‘973; ss. 243, 244, 246,
247, p. 945; s. 251, p.939; ss.
249, 250, 252, 253, 254, P. 946;
s. 255, p. 945; ss. 256, C257, 258,
p. 946; s. :259,_p. 947; ss., 260, 261,
262, 263, 264, 265, p. 976 ; ss. 268,
269, p. 995; s. 270, p. 996; ss. 271,
, 272, 273, 274, 275, p. 946 ; ss. 276,
277, 279, p. 947; ss. 280, 281,
282, 284, 286,, 287, p. 946; s. 288,
p. 947; s. 288, p.962; 3. 290,
p.947; ss. 301, 302 (2), p. 966;
ss. 301, 302, p. 949; ss. 305-8,
321, p. 1000; ss. 309, 310, 312,
313, 314, 315, 316,319, 320, p.
948; 33.326, 327, 328, p. 965;
‘ss. 330,331, 337,, 333, p. 935;
17 .& 18 V. c. 104. Merchant Ship-
ping Act (See Act, p. 927)... ss. 6,
7, 8, p. 998; ss. 9, 10, 13,
p. 999; ss. 21,26, p. 933; s. 31,
p. 934; ss. 35, 38, 40, 41, 42,
p. 929; s. 43, p. 932; ss. 45,
46, p. 930; ss. 47, 48, 49, p.
930; ss. 50, 51, p. 929; s. 52,
p. 930; ss. 53, 54, p. 930;
ss. 55, 56, 57, p. 930; ss. 58, 59,
60, p. 930; ss. 60, 67, 68, p. 931 ;
ss. 62, 63, 64, 65, p. 930; ss. 66,
67, 68, 69, 70, 71, 72, 73, 74, 75,
77, 78, 79, 80, 81, 82, 83, 84, p.
931; ss. 85, 86, 88, 89, 90, 91, 92,
94, 95, 97, 99, 100, p. 932; s. 98,
p. 930; ss. 101, 103(4), p. 932;
ss. 102, 103, 104, 105, 106, p. 933;
s. 107, p. 997 ; s. 109, p. 947 ; ss.
110, 119, 122 to 127, p. 946; ss.
131, 136, p. 934; ss. 138,139, 141,
144, 145, 143, 147, P. 935; ss.
148, 149, 151, pp. 936, 937; ss.
150, 151, 155, 156, p. 936; ss.
158, 160, 161, 162, 163, 164, 165,
166, p. 936 ; s. 167, p.939; ss. 168,
139, p. 937; ss. 170,171, 173,
174, p. 987; s. 177, p. 938; ss. 178,
179, 180, 181, 182, 183, 184, 185,
p. 938; s. 186, p. 939; s. 187,
p. 937; ss. 188, 189, 190, p. 939;
s. 191, p. 940; ss. 192, 193, p.
941; ss. 194 to 199, p. 940; s.
199, p. 938; ss. 200, 201, p. 940;
s. 202, p. 941; s. 203, p. 938;
ss. 203 to 207, p. 941 ; ss. 209 to
ss. 340 to 344, p. 986; ss. 345,
346, p. 987; _s. 349, p. 985;
ss. 350, 351, 352, p. 985; ss.
‘353, 354, 355, p. 987; ss.
356 to 364, p. 986 ; s. 368, p.
987; ss. 365, 366, 367, p. 987;.
ss. 375 to 388, p.988; 3. 389, p.
989; s. 390, p. 991 ; ss. 392, 393,
396, 397, 398, 399, p. 989; ss.
394, 395, 413, p. 990; ss. 400,
401, p. 996; ss. 404 to 410, p.
939; ss.4ll,414, 415,413, p. 991;
ss. 417, 418, p.992; ss. 418, 420,
p. 990; ss. 421gto 427, p. 991;
ss. 432, 437 to 448, p. 973; s.
435, p. 974; 439, p. 984; ss.
441, 442, p‘. 978 ; s. 443, p. 979 ;
s, 444, p. 978; st 445, p. 979; s.
446, p. 978; ss. 448, 450, 452, 453,
p. 979; s. 451, p. 980; ss. 458,
459, p. 930; ss. 455, 453, 457,
p. 984; ss. 466, 467, p. 982;
ss. 458, 460, 464, 468, 470,
p. 981; ss. 471, 472, 473, p.
979; ss. 470, 471, 475,, p. 979;
s. 476, p. 984; s. 477, p. 978;
s. 474, p. 979; ss. 478 ‘(2), (3),
479, 480, 481, 482, 483, p.
980; s. _503, ‘pr-9,77; ss. '486,
487, 488, 489, 490, 491, 492, 493,
p. 983; S. 494, p. 984; ss. 497,
498, p. 982; ss. 499, 501, p.
INDEX.
1155
Statutes cited—cont.
17 85 18 V. c. 104.—cont.
984; ss. 504, 506, 514, p. 978;
_ ss. 518, 520, 525, p. 993; S. 546,
p. 947; s. 547, p. 1001.
N&18Ve1m. .u H1
13 V. (N.B.) c. 36. 194
” ((1)5.100.s.23. .u 201
1,3 & 19 V. (Via) c. 55. 12, 525
18 85 19 V. c. 91. ss. 2, 3, 4, 5, 6, 7,
8, p. 991; s. 15, p. 997; s. 16,
pp. 942, 943; s. 17, p. 938; s.
20, p. 984; 22, p. 941; s. 23,
_ p. 936.
18 85 19 V. c. 119. s. 3, p. 948;
s. 8, p. 960; ss. 10, 11, p. 957;
.s. 14, p.950; s. 16, pp. 957,
978; ss. 16, 17, 18, p. 957;
s. 19, pp. 948, 949; ss. 20, 26,
p. 951; s. 27, pp. 950, 966; 28, p. 956; s. 29, p. 951 ;
.ss. 31, 32, 33, 34, p. 952; s.
35, p. 953; ss. 38, 39, 40, 41,
43, 44, p. 955; $8.444, 45, 46,
47, p. 956; ss. 48, 49, p. 958;
s. 50, p.957; ss. 51, 52, 53, 56,
. p. 959; ss. 59, 60, p. 958; s. 61,
p. 961; s. 62, p. 958; ss. 63,
64, p. 956; ss. 66, 67, p. 960; 71, 72, 73, 74, p. 958; ss. 75 to 80,
.p. 960; s. 82, p. 961; s. 84, p.
960; ss. 96, 97, 98, p. 962.
1.9 V. c. 65. 347
19 85 20 V. c. 23. 713
. ,, c. 113. 825
20 V. (NB) 0. 1. 194
,, (C.) c. 125. 532
I ,, c. 129. .. 163
20<& 21 \K 6 34. 707,713
,, c. 39.... 719, 840
,, . e. 75. 1040
21 V. (N.B.) c. 9. 334, 339, 342,
344, 347, 348, 363
,, (N.S.) c. 47. 163
,, (N.S.) c. 57. 315, 347
21 85 22 V. c. 90... 368, 755, 886
,, c. 99... 5, 721
22 V. c. 20. 825, 1039
- ,, e. 26. 726
,, (C.) c. 66. .. 125, 273
,, c. 85. 433
,, (11.0.) c. 99. s. 245 ...163, 205
228523 V. c. 26. 728
,, c.10. 727
. ,, , 0.63. 825, 1039
238524 V. e. 89. 726
V. c. 122.... 825, 1039
7)
Statutes cited—cont.
24 V. No. 8 424
,, No.15. s. 29 1009
24 85 25 V. 0.10. s. 9. 980
,, c. 11. 825, 1039
,, c. 31. 1040
n 0.97. s. 47 991
,, c. 100.... 1039
,, 0.101.... 1007
,, c. 104. 1010
25 V. c. 19. 498
25 85 26 V. e. 63. s. 4, p. 933; s. 6,
p. 934; ss. 18, 19, p. 942; ss. 20,
21, pp. 938, 940; s. 22, pp. 713,
942; s. 23, p. 973; s. 24, p. 974;
ss. 25, 27, 30, 58, p. 965; SS. 35,
37,p.949;ss.43,44,45,46,47,
p. 990; ss. 52, 53, p. 979; ss. 39,
40, p. 985; ss. 54 to 56, p. 978;
ss. 66 to 78, p. 977.
25 85 26 V. c. 68. 872, 874, 875
,, c. 70. 774, 786
26 V. (NB) 0. 7. 341
,, (U.C.) c. 44. 103
26 85 27 V. c. 24. 898, 903, 1021
,, c. 35. 1040
,, c. 51. s. 3 947, 948
., c.51.s.11 956
,, c. 51. s. 13 958
,, c. 51. s. 14 959
,, c. 76. 732
,, c. 83. 5, 721, 733, 745
27 V. (N.B.) e. 43. 231
27 85 28 V. (C.) c. 3. 213
,, ,, c.13. 410
(11(1)0.18.".162,177,
205,541,1064
,7
,, c. 25. 890, 927
,, (U.C.) c. 58. 410
,, ,, c. 60. 431
28 V. cc. 28, 29. 365
28 85 29 V. c. 14. 734
n 0.63.... 92,733,1079
,, c. 63. s. 6 345
,, c. 64. 741
,, c. 106.... 742
,, c. 113.... 743, 887
,, c. 116.... 743, 1040
29 V. (N.S.) c. 30. 365
,, (C.) c. 34. 368
29 85 30 V. c. 25. 908
,, v (Q.) c. 32. 202, 1047
,, (ILCL)c.51.u.154,163,
177,203,210,
1044,1064
0.65.... .H 743
0.67.... 5,721,743
15156
.TNDEX.
Statutes cited_cont. PAGE Statutes cited—com‘. PAGE
‘ ‘ 29 & 30 V. 6. 37. . 1040 ' 33 V. (N.B.) 6. 47.... 67, 113, 225
~ ,, c. 121.... 778, 786 ,, c. 58 84, 85, 329
30 V. c. 3-
3 33 85 34 V. c. 10.s. 20 743
., (N.B.) 6. 6. 231 ,, 6. 14. 100,764,773,
= ,, ,, 0.12. 231 801
a H v 6.27.". n. 342 ” c,52.... u. 774
,, (N.S.) c. 36. 487 ,, c. 55. . 1041
30 a 31 V. 6. 3. 503,745,323, 337 ,, 6.53. .. 317
,, 6.15. 939 ,, 6.66. 721,745,736
,, 6.45. 903 ,, 6.75. .. 362
,, 6. 124. 325,1039 ,, 6.32. 737,309, 311
s. 4, p.943; ss. 6, ,, c. 90. 789, 895, 972
7,p. 944; s. 3, p. ,, 6. 95. 954
939; s. 9, p. 944; ,, c. 102.... 764, 773, 799
s. 10, p.943; 3. 11, 34 V. (N.B.) c. 1. 392
p. 994. ,, (0,.) 6. 2. 322
'31 V. (D.) c. 1. 84 ,, (D.) c. 5. . 75, 91
,, (0.) 6. 6. s. 2 .. 107 ,, (N.B.)6. 21. 334, 339, 342,
,, (D.) 6. 3. 54, 59, 68, 144 p 357, 360
,, c. 12. . 91 ,, (D.) c. 22. 101
,, (D.) 6. 17. 35, 91 ,, (0.) 6. 33. 233
,, 6. 23. 91 ,, ((3.) 6. 68. 204 .
,, c. 29. 367 34 82; 35 V. c. 28. ... 3, 11, 45, 369,
,, (0.) 6. 30. . 11, 392 533, 540,547,
- ,, (0166661.) N6. 33. 1009 553, 887
,, 6. 54. 349 ,, 6. 33. . 36
,, (D.) 6. 56. 93 ,, 6. 91. 1025
n ,, 0.58. 451 ” 0.110.". 713,964,966,
.. ,, 0. 60. 72, 74 973, 976
,, ,, c. 66. 101 ,, c. 107.... . 1012
.. ,, 6. 76. 50 35 V. (D.) 6. 5. 65
H ,, 0.94. .H U. 542 ,, 0.23. 91
31 a 32 V. 6. 29. 754, 755 ,. (D.) 6. 26. 33, 39
,, ~ 0. 101.... 547 ,, ,, c. 65. s. 6 233
,, c. 105. . 553 35 8t 36 V. c. 19. 895
,, 6. 129.... 753,934 ,, 6.29. 743,337
32 V. (Q) 6. 4. 12 ,, 6. 39. . . 100, 764, 301
,, (0.) 6. 6. 103, 392 ,, 6. 45. . 303
,, c. 11. 935 ,, c. 63 556, 565, 566
,, (0.) 6. 22. 390 ,, 6. 73. 713, 932,935
,, (0.) c. 27. 107 ,, c. 97. 595
,, ,, 0.32. H. 162,177,208, ” (IL)0.115. 307
1064 36 V. (0.) 6. 3. 392
,, (N.B.)C. 54. 231,232 ,, 6. 6. . 1014
,, (Q) 0. 55. 232 ,, c. 10. 58
,, (0.) 6. 92. 392 ,, (0.) 6. 21. 392
32 36 33 V. (D.) 6. 3. 333, 369, ,, (D.) 6. 23. 312
\ 547, 553, 300 ,, (0.) 6. 43. 177
,, c. 10. 758, 845 ,, (D.) c. 82. 232
,, 6. 11. 762, 963, 1001 36 & 37 V. 6. 45. 737, 309
,, - 6. 31. 102 ,, 6. 59. 896,903
6.52. 541 ,, 6.60. .. 542,774,733
. ,, - 6.101.... 547, 762 ,, 6.66. 1026
- 33 V. (Can.) 0. 3. 518, 553, 554, 800 ,, c. 85. 964
"7
,, (D.) c. 40.
c. 25. 100
85,86, 332
s. 3, p. 929; s. 7,
p. 936; s. 9, p. 973;
IND EX.
1157-
Statutes cited—cont.
36 & 37 V. c. 85.—com‘.
,, c. 88. ,, e. 91. 37 V. (O.) c. 7. ss. 32, 32
ss. 12, 16, p. 965;
ss. 4, 18, 20, p. 966;
ss. 19, 20, p. 987;
s. 22, pp. 947, 965;
ss. 23—28, p. 969;
s. 29, p. 934; s. 30,
p. 933.
774, 890, 903
649
453
,, (D.) 0. 10. 18,20, 48, 313, 394
,, ,, 0.16. 489,490, 491,494,
496
,, c. 20. 7
,, c. 21. 7
,, (Q) 0. 23. 452
,, (0.) 0. 30. 368
,, ,, c. 32. . 52, 55, 56, 58,
144, 158, 177
,, (Q) 0.51. 161
,, (D.) 0 103. 234,236
37 35 38 V. c. 26. 811, 818, 819
,, 0. 27. 820, 831, 844
,, 0.35. 596,605,649,
653, 654
,, 0.41. 719, 720, 821,840
,, c. 77. 822
,, 0. 83. .. . 1026
,, c. 85. .. . 1021
,, 0.88. 946
,, 0. 94. 825,1039
,, c. 96. 663, 694, 697,
846,849,1019,1023
38 V. (D.) p. ix. 347
,, (Q) 0. 8. 40,45, 83, 109
,, (D.)0.11. 19,52, 82,394,
395, 404, 405,
442,454
,, (M) 0. 12. .. 403
(D.) 0. 16. 80,81,307
,, ,, c. 20. 55, 265
,, ,, c. 49. 403
,, (D.) 0. 47. 104
,, ,, c. 49. 5, 403
,, (o) 0. 62. 274,278
,, ,, 0. 64. . 124, 232, 274,
328,538
,, (O.) c. 75. .. 232
,, c. 88. . 92, 93, 94,849
38 & 39 V. c. 12. 872
,, (0.) 0. 16. 108
,, c. 17. 953,954, 969
,, c. 38. 11, 555, 745,
822, 1079
,, c. 39. 773
PAGE
Statutes cited—cont.
PAGE
38 & 39 V. c. 51. 895,903
,, c. 52. 803, 804
,, (D.) c. 53....92, 93, 823,
849, 855
,, c. 66. 852, 1007
s: C. 77. ... .
,, c. 85. .. ... 1041
39 V. (Q.) c. 2. . 232
., (Q) 0.7. .. 120, 127
,, (N.B.) c. 8. 391
,, (D.) c. 18. 50
,, (0.) c. 24. ...47, 55, 278,459
,, c. 27. 493
,, (Q.) c. 52. 66
,, ,, c. 57. 452
,, ,, c. 61.. .. ~ 240
,, (0.) e. 93. 246
,, ,, c. 109. 473
39 8t 40 V. c. 36. 852, 971
,, c. 43. 801
,, c. 46. . 1041
,, c. 59. 1026, 1029
,, c. 80. 912,925, 964,978
ss. 4, 6, 10, 11, p.
972, ss. 7, 8, 9,
p. 976; ss. 11, 13,
p. 973; s. 14, pp.
948, 957, 958 ; s. 15,
p. 977; s. 17, p.
949; s. 19, p. 961;
s. 21, pp. 950, 966;
s. 24, p. 970; s.
25, p. 967; ss. 27,
28, p. 968; 0. 29,15.
973—4; 8. 30, pp.
973, 976; s. 31, p.
979; s. 34, pp. 933,
996; 0. 36, p.932;
8. 39, p. 977.
40 Vic. (N.S.) c. 2. - 543
,, (D.) c. 3. 543
,, ,, c. 21. 49
,, c. 25. .. 542
,, (D.) c. 41. 81, 308
,, ,, c. 45. 233
,, ,, c. 50. 240
,, e. 60. ss. 326, 327, 370 461
408541 V. c. 16. .. .978
,, ,, ss. 4, 5, 6, 7, 8 980
,, c. 23. 824
,, 0.59. 812, 818, 819,
909
41 V. c. 6. s. 2,6 442, 443
,, (Q) 0. 13. s. 1 235
,, ,, c. 20. 240
,, (0.) c. 69. 473
1158 INDEX.
Statutes cited—cont. PAGE Statutes cited—cont. ‘ PAGE
41 85 42 V. c. 67. 738, 825, 1041 46 83 47,V. c. 41—com‘.
,, c. 79. 703, 743 V 17, 19, p.964 ; s. 18,
42 V. (D.) c. 3. 243 p.962; ss. 21 to 24,
,, (13.0.) c. 12.... 322 27, p. 934; ss. 23,
,, (D) c, 14. 103 29, 31 to 35, p. 963;
,, c. 39. 404, 505 ss. 37, 40, p. 964;
,, (D.) c. 48. 240 ‘ ss. 43 to 45, p. 963 ;
,, c. 67. s. 41 845 s. 46, p. 973; s. 48,
42 8t 43 V. c. 38. .,, 896 p. 944.
,, c. 72. ss. 2, 4 974 ,, c. 57. 1023, 1023
43 V. (D.) c. 19. 33 47 v. (13.0.) c. 14. 500, 519, 521
,, ,, c. 22. ... 283 ,, (N.B.) 0.19. 120
,, (0.) ‘c. 24. 1075 .. (M) c. 23. 513
,, (D.) c. 25. 5,11, 45, 403, ,, (D.) c. 32. 34, 144, 153
538, 540, 547 ,, ,, c. 39. 87, 88
43 V. c. 32. 240, 243 47 85 48 V. c. 24. 719, 840
,, ,, c. 33. 243 ,, c. 31. 758,841
,, (D.) c. 34. 455 ,, c. 57. 726
,, ,, 0. 67. 241, 249 ,, c. 62. 839, 840
438544 V. c. 8. 909 488549 V. 0.7. 64
,, (Q.) c. 9. 32, 119 ,, c. 49. 343
43 8t 44 V. c. 16. s. 3, pp. 937, 938; ,, c. 74. 1039
s. 4, p. 937; ss. 5, 6, pp. 945, 49 V. c. 4. 71
971; s. 7, p. 936; s. 8, p. 971; ,, (D.) c. 9. 315
s. 10, pp. 945, 971; s. 16, p. 938. ,, c. 13. 884
43 & 44 V. c. 20. 311,312,313, 319 ,, c. 13. 1075
,, c. 43. s. 3 970 ,, (N.B.) c. 25. 107
44 V. (0.) c. 3. 103 ,, (Q.) c. 34. 35, 33
,, (D). c. 14. 5 ,, (M) c. 52. 76
,, (0.) c. 27. 137, 400 ,, (NS) 0. 56. 71
,, (0..) c. 32. 431 ., (D.) c. 103. 1035
44 8t 45 V. c. 3. 1028 49 8c 50 V. 0. 33. 849, 855, 867,868
,, c. 58. 825, 845 ,, c. 35. 3, 555, 799
,, c. 59. 703 ,, c. 48. 755, 884
,, c.69.702,826, 1039,1041 50 V. c. 4. ss. 141, 144 ...35, 33
45 V. cc. 20.85 21.... 542 ,, (N.B.) c. 4. 162
,, (Q.) o. 22. 113 ,, sess. 2.0. 4. ss. 2, 6 963
,, (D.) c. 23. 87, 88 ., (M.) c. 10. 76
,, (N.B.) c. 100. 33, 71 50 & 51 V. c. 3. 343
45 85 46 V. 0. 55. 943, 992 ,, c. 13. 743, 800,801,887
,, c. 72. 811, 819 ,, 0.67. ' 726
,, c. 76. 837, 973, 975. 4, c. 70. 1008, 1026, 1029
43 v. (N.S.W.) No. 17 417 51 V. (0.) c. 32. 105, 103, 323
,, (D.) 5. 24. 459 .. (D.) 5. 37. 404
,, (0)5. 45. 459 ,, ,, 0.47. 324
,, (D.) c. 120. 298 ,, c. 62. 888
43 & 47 V. (D.) c. 30. 144, 153, ,, c. 70. 333
5 837, 839 51 & 52 V. c. 24. 966
,, c. 39. 758, 764, 774, ,, c. 57. 650, 846, 1006
787, 789 ,, 0.65. 719
,, c. 41. 762 52 V. (0.) c. 15. 106
s. 3, p. 962; ss. 4, 6, ,, (D.) c. 43. 104
p.963; 3. 7, p. 964; 52 8t 53 V. c. 29. 947
s. 8, p. 963; s. 10, ,, c. 42. 837, 839, 852
p. 964; s. 11, p. ,, c. 43. ss. 1 to 6 933
963; ss. 13, 15, 16, ,, c. 46. 888, 937, 940
INDEX‘. 1159
Statutes cited—cont. PAGE Statutes cited—cont. PAGE
5285 53 V. c. 68. 888 54 85 55 V. c. 57. 849
' s. 2 (b), p. 985; ,, c. 67. 852, 1019
ss. 5, 7, p. 986; ss. ,, c. 69. 395, 938
3, 4, 9, 10, p.987. 55 & 56 V. 5. 19. 713, 719, 727,
,, c. 73. 933 - 728
5-3 V. (B.C.) c. 8. 323 - ,. 0.35. 908
,, 5. 9. 964, 967, 963 ,, 5. 52. 906
,, c. 13. 395, 396, 401 56 V. c. 14. 734, 738, 743, 746,
-,, ,, c. 18. 107, 162 758, 847
,, (111.) 5. 33. 371, 374 . . 5685 57V. 5. 54. ...753, 762, 764,
I ,, (C.) c. 56....164, 176, 195, 208, 773, 789, 799,
212,1042, 1065, 322
1069, 1073 - -,, c. 66. 1001
53 85 54 V. c. 27....69,395, 888, 927, 57 V. c. 2. 910
973, 975, 1007, ‘ 57 85 58 V. c. 30. 926
1019 - ,, c. 39. 926
,, c. 33. 596 ,, c. 56. 743, 786, 812
,, c. 37. 374, 934, 1031 r ,, c. 60....71, 451, 713, 758,
,, c. 51. 663, 694, 697, 762, 911, 912,916,
347 917, 913, 920, 921,
54 V. (0.) 5. 2. 1013 922, 923, 924,925,
,, ,, 5. 46. 163, 194, 203, 927, 1039
212,1042 4- 58 85 59 V. c. 34. 411, 1002
54 35 55 V. (D.)5.25....29, 163,323, ,, 5. 44. 1030
395, 404, 405, 434 59 V. (2nd sess.) c. 3. 555, 1003
,, c. 29. 395
REVISED Ac'rs REFERRED TO.
0.3.13.0. 5.25. 323 R. s. 0. (1886)c. 175. 324
,, 5.124.... 230 14.333435515559519. 163
C.S. C. 0.66. 233 ,, (4thser.)e.89. 402
,, 0.101. 324 i ,, (5th ser.) 0. 3. 1079
<3.s.1.<1 5.24.... .N 163 ;3.s.c1<1377)5.37. .n 400
,, 5.69. 240 ,, ,, 5.42. 391
,, (1861)c. 77. 393 ,, ,, 5.142. 368
,, ,, 5.33. 235 ,, ,, 5.167. 55
0. 3.11.0. (1359) 5. 13. 402 ,, ,, 5.131. .. 133,324,
‘ ,, ,, 5.19. 391 ' 400
,, ,, 5.53. ... 240 .. (1337) 5.41. 396,402
,, ,, 5.54. 205 ,, ,, 5.42. 400
as. 0. (1886) 5. 9.‘ 314 ,, ,, 5.44. 401
' ,, 5.106. 190 ,, ,, 5.124. 302
., 5.135. 395‘, 404, ,, ‘5.194. 153,212
' ’ 405 R. s. Q. (1333) ss. 1114,1115,
,, 5.157. _;. 107 11155, 11425, 1173, 11735,
,, i,,' 5.167. 107 6009, p.398.
,_,_ 5.174. 107
Statutory 0555 .
.. 144
,, Conditions and Insurance Companies 268
,, Construction of sees. 91 and 92 Examined 301
Steamers, Inter-Provincial - 66, 224
Stock,‘ Colonial, Transfer of 908
,, Holders, Register in Colonies 837
.1160 INDEX.
f_ " . , , PAGE
Stocks at Time, ‘of the Union ... 486
Straits Settlements, Appeal from 1013
Streams and Floating Timber ~ 451
, ,, in Provinces and Fish therein . 72
Strong, C.J., Examination of Russell '1'. Reg, Hodge 1'. Reg., and City of
. ' Fredericton 1‘. Reg... 165
,,~ ,, on License which would amount to a Prohibition .. . 58
,, . ,, on Prohibition of Manufacture 164
,,, ,, on sub-sec. 21,sec. 9 86
Subsidy to Railway , , _ 126, 229
Suing Governor of Colony‘ 10
Sum Demanded, Appealable Value 405
Summons of Senators 14
,, of Legislative Assembly 38
‘Sunday Closing 161, 199
Superannuation Acts .. 726
Supreme Court of Dominion, Establishment of 3, 394, 404
,, ,, and Severn’s Case 55
,, ,, of Newfoundland Act... 627
Surrender by Indians, Alternative Eﬁ'ect 99
Surveyor of Ships. See Merchant Shipping Act. .
Suspension of Constitution, Lower Canada 4
System of U.S. Commercial Law 62
T
Taney‘, J., on U.S. License Laws 4 216
Tasmania, Appeal from 1009
Tavern, in sec. 92 ... 126
,, ' Licenses and Exclusive Power of Provinces 59
Tax by Province on Otﬁcial Income of Dominion Oﬁicer ... 70
,, Income, and Provincial Stamp Act on Policies of Insurance 127
,, on Assurers ... 127
,, on Banks and Insurance Companies 68
,, on Brewers 53
,, on Exhibits in Courts of Justice 32, 320
,, on House of Public Entertainment ... 565
,, on Income, New Brunswick 75
,, on Policies of Insurance 68, 113
,, on Trades 119
,, on Wholesale Liquor Dealers ' 159
vTaxation, Additional, for N on-payment 76
' ' ,, ‘ by Municipalities, Extent of 75, 486
,, Direct, within the Province... ‘ 113
,, ,, in both Dominion and Provinces 53
,, ,, and Indirect Examined in Bank of Toronto 0. Lambs 114
,, extended so far as to cause Suspension of Business 118
,, of Public Lands in Canada 535
,, Point of, and Special Leave... 122
,, Power of, in U.S. 69
,, Stamps not Direct 121
a _ under Municipal Institutions 77
INDEX.
1161
PAGE
Taxes,-Dis0riminati0n in 122
Teaching, Sectarian , 350
Telegraph and Beds of Bays 74
Telegraphs, in sec. 91 224
Temperance Acts, 1883—4, Result of Argument 158
,, ,, of Canada and Ontario Act 162, 1042, 1064
Term of Lieutenant-Governor... 4, 28
Terms, Peace, Order, and Good Government not to be Restricted 43
Territorial Courts of Japan, Counterclaim , 1031
Territories outside a Province, Incorporation of 3
Territory Ceded for Settlement, meaning of 99
Test of Appeal _ 441
,, Appealable Amount 424
Three Rivers, Prohibition of Liquor Sales 163
Tidal Navigable River, Power to Obstruct 71
Timber and Streams in Canada _ 451
,, on Lands occupied by Indians... 100
Time, Limit of, between Meetings of Parliament _, 12
Tobago, Appeal from .. 1013
Tonga, Appeal from . 1013
Trade and Commerce in sec. 9 157, 1043, 1075
,, ,, Considered . 151, 1068
,, ,, includes, in Laws of Canada 181
,, ,, Incorporation of Companies 2, 263
,, ,, include Political Arrangements 53
,, ,, Power to Municipalities 207
, ,, Question left by J .C. undecided 63
,, ,, Regulation of, Examined by Ritchie, CJ. 52
,, Act of Old Provinces 605
,, Case on Interference with 66, 1075
,, Ratepayers 162
,, Sale or Storage of Gunpowder 104
,, Shop Licenses 150
,, in Guns .. 152
,, Navigation, and Immigration 'of Chinese 64
,, of British Possessions, Regulation Act . 851
,, Provinces can Legislate to Prevent Fraud in 106
,, - Eliminating Subject Matter from 175
,, Regulation of m H 1043, 1075
,, ‘Suppression of . 193
,, . Regulated throughout the whole Dominion may be within Dominion
power _ 157
,, Regulation of, and Commerce 52
,, . What is 263
Trader, Tax on, amount of Trade done 127
Traders and N on-Traders: Bankruptcy Act 79
,, in Canada defending Outside Creditors 83
,, Regulated in U.S. 66
Trading Rights and Treaty with U.S. 807
Transfer of Colonial Stock .. 908
,, of High Court of Delegates to King in Council , 1005
,, of Property in British Ship 930
,, of Stock and Transfer Duty 811, 812
Treason of Senator... 15
Treasury of Provinces 533
Provincial, and Product of Tax 155
H
1162 INDEX. '
PAGE
Treaty Ceding Land for Settlement and Immigration, meaning of 99
,, I Obligations... < . .. 541,1031
,, ofParis-
- - - 4
,, of Utrecht . . 5
,, of Washington, 1872... 535,803
,, with US. as to Fishing 805
,, Scheme of Confederationto be Vie-wed as 168
Trees in Province, Right to 73
Trenching on-Provincial-Matters .. 44, 1043, 1067
Trespass by Inspector of Fishing '74
,, to Cut Trees in Province 73
Trial by Jury- in Canada . - .. 45
,, of Fugitive Offender - - ~ 334
,, of Oﬁ'ender on High- Seas un er Merchant Shipping Act 994
,, ofRiel ‘ 12
Tribes, Indian, and Commerce with 62
Tribunal, Functions of - - 380
,, - Minister’s Court formed as .. 89
,, Parliamentary Contempt 1079
,, to hear Senate Question of Qualiﬁcation and Vacancies therein 16
Trustees, Dominion Acting as such 332
,, to carry on Bank, appointed by Dominion Act . 75
Turkey, Appeal from . 1013
Turks and Caicos Island, Appeal from... . 1014
Turnpike Road Trust Debts 526
U.
Ultra Vires Act of Lieutenant-Governor 28
,, ,, Disfranchising Candidates . 45
,, ~ I ,, Hearing Election Petitions ‘ 40, 308
,, ,, License on Assurers by Provincial Legislature 32
4,, ,, Tax, Exhibits in Court 127
Ungava, New-Territory marked out in Canada 554
Ungranted Lands in Province - 73
Uniform Legislation .. . I35, 388
Union Agreement of Canada Examined 218
,, "'Calling'together of Canadian Parliament... 12
,, ‘ ‘Judges who were Party to'the Canadian . 72
,, Laws and: Education . . - > 365
,, ' "of Churches, Canada 274
,, Declaration of 3
,, ' Proclamations after 3, 544
,, -' of Quebec and Ontario in 1840, Act: I 663
,, - ~Welfare of Provinces I - - . 2
United Kingdom and Constitution of Canada 1
,, ,, and Money Bills 25
,, - 1 ,, ' ' Use of Words as constituting a State‘ 27
' ,, States Brewer’s License ' - 160
I ,, ,, Commercial System - > _ ' 62
,, ,, Confederation and Canada 5 - 60, 173
,, ‘ ,, Constitution Examined
118
INDEX. 1163
United States—cont. PAGE
,, ,, Constitution Examined by Judicial Committee 116
,, ,, Income Tax . 69
,, ., Provincial Ferries . 74
,, ,, Railways from Canada 226
,, ,, Senate and Money Bills 25
,, ,, Territory, Railway to, matter merely Local and Private within
sub-sec. 10 of sec. 29 67
Unlimited Powers of States of America 61
Unorganised Tracts of Country and Administration of the Law 34
Upper Canada Marriage Laws . 254
,, ,, Old Formation 4, 6
,, ,, Old Province of 4
,, ,, Prohibition of Liquor Sale 163
,, and Lower Canada, United 5
,, ,, ,, Severed 4, 6
n n ,, Seal V
Vancouver Island, History of 5
,, ,, United to British Columbia 744
,, ,, Appeal from . 1014
Vacancy in place of Councillor of Quebec 37
,, in Senate by Death, &c., how ﬁlled .. 16
Van Diemen’s Land, Appeal from . 1009
Value of Subject Matter of Appeal. Sec 1009 at sag.
_., ,, ,, Debated Question 432
,, ,, ,. Raised by Interest 433
,, ,, ,, Question of Taxation 122
Varley School 347
Verdict Set Aside, not an Interlocutory Decision 423
Vessel, Liquor License to 146, 151
Viee- Admiralty Court and Jurisdiction 888
,, ,, Conferred by Dominion Act 69
,, ,, Newfoundland, Old Act 629
Viceroy, whether the Governor of a Colony is 10
Victoria Parliament, Privileges of 12
,, Appeal from . 1009
Virgin Islands, Appeal from . 1014
Vote ‘of Speaker of H. of C. 23
Votes, Money, by H. of C. 25
VOtiIIg in H. of C. Canada ... 23
,, in Senate 16
W.
Wages, Seamen’s. See “ Merchant Shipping.”
Warehouse Receipts Case ' 75, 296
Warrant for Arrest of Fugitives 827
,, Extradition . .. .. . .. . 7 84
1164 INDEX.
Washington, Treatyof, as to Fishing... Waste Lands in Provinces ..
Watson, Lord, on History of Quebec “ Weights and Measures ” Provincial Act
4 5,
“ Welfare ” of Dominion
,, sec. 91.
Wesleyan Academy and School
West African Settlements, Appeal fro
West Florida, 01d West India Trade, Old‘ Westbury, Lord, on Right of Appeal to RC.
Western Australia, Appeal from
,, Paciﬁc Islands, Appeal from
,, Provinces, Great Lakes, and Fish therein
Wetmore, J., on New Brunswick School Question Wholesale and Retail
,, Licenses .. .
9!
,1
,, Acts of 1883, 1884
Liquor Dealers taxed
Wild Animals, Killing, Appealable Value
Wilful Breach of Provincial Act
Wills to be executed according to Laws of Canada, Old Act
,, Probate of, in the Colonies to be recognised in
Winding up of Insolvent Bank, Trustees for windward Islands, Appeal from Witnesses discredited, No Reason for Appeal
Words, “ Book,” meaning of ,, ' “ By Practice ” in regard to Education ,, “Civil Rights” ,, “ Colonial Legislation .. . .. . .. . ,, “Comptables ” ,, “ Denominational” ,, “ Direct Tax ” ,, “Exclusive ” as regards Education ...
,, ,, ,, Liquor
,, “ Executive Power ” ,, "‘ Extend Beyond,” sec. 92, sub-sec. 10, Examined ,, General Power overriding particular Power ,, “‘ Good Government of”
,, “ Governor-General ” ..
,, ' “Income” Taxation ..
,, “ Legislative Power ,, “Licensing”... ,, “ Lieutenant-Governor " . . . . .. . . .
Wreck
“ Municipal Institutions ”
“ Overborne,” whether Provincial Legislation is, by Dominion
“ Parliament” . . . “ Peace, Order, and Good Government
“ Prohibition” “Public Lands” ..,_ “ Property and Civil Rights” . .. “Queen” “Revert” “Senate” ..
“ Settlement and Immigration ”
and Salvage. See “ Merchant Shipping.”
PAGE
305
519,524
.a 93
76
76
2
347
. 1014
95
011
413
. 1009
. 1014
74
331
151
53
143
159
419
125
501
903
. 75
.H 1014
424
347
370
133,257
733
234
303
.u 115
. 332
57,155,199
.H 7
227
.H 43
43,201
3
75
11
190
7
187
43,49
11,1033
1042,1007
190,1042
123
133,257
.“ 2
u. 513
".11g12
99
INDEi 1165
. men
writs for ﬁrst Elections 22
Wrongs by Governor, Liability to be Sued _ i-
10
Y
Yearly Session of Legislative Assemblies 40
Yukon, New Provincial District created 554
Z
Zanzibar, Appeal from 1014
Zululand, Appeal from 1014
EYRE AND SPOTTISWOODE,
Her Majesty’s Printers,
DOWNS PARK ROAD, HACKNEY, N.E.
liV'ERSlTY


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