66

The question is then left to be determined whether the devise made by that will to a charitable use is void in this country under the provisions of the statute 9 Geo. II. c. 36; that it is of such a nature as to come within the terms of that statute, cannot be doubted, and the only point, therefore, to be determined is, whether the statute is in force in Upper Canada. If this had been a colony of that description, and not a conquered or ceded country, having already laws of its own, and if the question whether the statute 9 Geo. II. c. 36, could be regarded as in force or not, had turned wholly on the point whether, upon the principles of the common law, without the interposition of any legislative enactment, that statute formed part of the law binding upon all who settled in the colony or plantation, I think we should without difficulty have held that it did not, for the reasons expressed in this passage of the commentaries (o), and which received the sanction of a judicial decision, in the case of The Attorney. General v. Stuart, 2 Mer. 144. from a very eminent judge (Sir W. Grant), and in reference to the very statute now under consideration. But it is plain that the question does not rest here on that footing, and though the case of Attorney General v. Stuart may appear very material to its decision, it cannot be so upon the footing that this is a colony planted originally by British subjects, to which all who have come, have brought the law of England as their birthright, but it may be material as illustrating the extent and effect which should be given to the words of a provincial statute introducing the law of England, which statute, after all considerations are stated, must form the foundation of our decision. The country in which this question rises. formed part of the conquered province of Canada, ceded by the French government, by the Treaty of Paris, 10th July, 1763, and in which, therefore, after the cession, it was in the power of the Crown, independently of the legislature (p), to have introduced either the laws of England, or any other; but the laws before enjoyed by the conquered people would

(0) Of Blackstone, from which full extracts have already been taken; see ante, p. 78 et seq.

(p) See Chap. VI. post, for a reference to the contention to the contrary raised in Lower Canada.

prevail until such introduction. These principles are clearly and precisely stated by the Master of the Rolls (2 P. Wms. 75) to have been determined by the Lords of the Privy Council, on an appeal to the king in council from the foreign plantations. Lord C. J. Holt assents to them, in emphatic terms, in Smith v. Cooper, 1 Salk. 666, where he says, 'the laws of England do not extend to Virginia; being a conquered country, their law is what the king pleases.' I do not, however, understand in what sense his Lordship speaks of Virginia as a conquered country. In 1 Salk. 44, the principles we are considering are again stated by Lord C. J. Holt, and were elaborately set forth in modern times by Lord Mansfield, in the well-known case of Campbell v. Hall, 1 Cooper, 204. The proclamation of October, 1763, on the effect of which that judgment proceeded, was an act of the Sovereign, introducing the law of England, in general terms, into countries ceded by the Treaty of Paris; but, by some inadvertence, the territory which was then formed into the Province of Quebec, was so described in that proclamation as to exclude the greater part of Canada, in regard to which no provision was made for its civil government. This omission is noticed in the preamble to the British statute 14 Geo. III. c. 83. If the territory which lately formed Upper Canada, and in respect to which the question now before us has arisen, had been included within the limits given by that proclamation to the Province of Quebec, and if to this moment we had been left to the effect of that proclamation, which assured to the inhabitants the enjoyment of the benefit of the laws of England,' and directed that all causes, criminal and civil, should be determined according to law and equity, and as near as may be, agreeable to the laws of England, then the question would have been, whether in reason we should hold that any other laws were introduced by those general words than such laws as English colonists, planting a newly discovered country, would, on the principles of the common law, have carried with them; and, in considering that point, the observations of Sir William Grant, in Attorney-General v. Stuart, would have strongly applied, and might, indeed, have been taken as direct authority. Then, how does the question stand on the real facts of the case? The British statute 14 Geo. 1II. c. 83, noticing

the defect in the proclamation of the 7th of October, 1763, enlarged the limits there assigned to the Province of Quebec, and made them clearly embrace the country now involved in this question (if not the whole of Upper Canada); and parliament, by that Act, for the satisfaction of her Majesty's Canadian subjects, provided that within the whole of the territory thus defined, in all matters of controversy relative to property and civil rights (q), resort should be had to the laws of Canada (that is, the laws which prevailed in Canada before the conquest), for the decision of the same. This gave a new starting point with regard to the question, and puts an end to all doubts which might have arisen under the proclamation, which, in this respect, was wholly abrogated. The statute 31 Geo. III. c. 31, which divided the Province of Quebec, and gave to Upper Canada a distinct legislative body, and did not by anything contained in it affect the terms of this question, left the FrenchCanadian law in force, but it created a legislature, with power to make laws for the peace, welfare, and good government of the province, and which, under the very general terms of that authority, might alter or abrogate the existing law, if it thought proper. In the first statute passed by this legislature, 32 Geo. III. c. 1, that was done which, no doubt, was anticipated and intended as the consequence of erecting Upper Canada into a separate province. Reciting that the provision made by the 14 Geo. III. c. 83, had been manifestly intended for the accommodation of his Majesty's Canadian subjects,' and that the territory comprising Upper Canada had become inhabited principally by British subjects, unaccustomed to the law of Canada, it repealed the provision in the 14 Geo. III. c. 83, so far as it had the effect of introducing the French law into Upper Canada, and enacted, that from and after the passing of that Act, in all matters of controversy relative to property and civil rights, resort should be had to the laws of England, as the rule for the decision for the same. And that all matters relating to testimony and legal proof in the investigation of fact, and the forms thereof, in the several courts of law and equity within this province, shall be regulated by the rules of evidence established in England'; with a proviso that the (2) See Citizens v. Parsons, L. R. 7 App. Cas. 96.

Act should not be construed to interfere with the subsisting provisions respecting ecclesiastical rights or dues within the province, or with the forms of proceedings in civil actions, or the jurisdiction of the courts already established,' or to introduce any of the laws of England respecting the maintenance of the poor, or respecting bankrupts.' On this foundation rests our right to the enjoyment of the laws of England, except as regards the criminal law, which, having been introduced by the royal proclamation into the province of Quebec as there defined, was afterwards, by the statute 14 Geo. III. c. 83, extended to the whole territory (including Upper Canada), which was by that Act made to constitute the Province of Quebec, and has ever since been allowed to continue in force there; being expressly recognized in Upper Canada by 40 Geo. III. c. 1 (r), and modified by that and many subsequent statutes. Except for the purpose of tracing the history of the introduction of the laws which govern this colony, it was unnecessary to the decision of the point before us, to have gone further back than the statute 32 Geo. III. c. 1; whatever was done before cannot affect the question, though some things which have been done afterwards may. Then, looking in the first place at the words of this statute, it is my opinion that they do not place the introduction of the English law on a footing materially different, as regards the extent of the introduction, from what would have been, or rather from what was the effect of the proclamation of 7th October, 1763, in those territories to which it extended, or from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force on the principles of the common law, by reason of such colonies having been first inhabited and planted by British subjects. The restrictions intimated in the passage which I have cited from the commentaries and the reasons of Sir Wm. Grant, in the case of Attorney-General v. Stuart, apply, I think, in the case of an introduction by express enactment in such general terms, as well as in the other case. It would have been hardly possible for the legislature to have excepted, in special terms, all those British statutes which, being inapplicable to the con

(r) See post, p. 123 et seq.

dition of the colony, they might not wish to include as parts of the law of England. And it is impossible to allow that they could have intended, by the words they used, to embrace every provision in the British statute book which they did not specially except. It is true, indeed, that they have made some special exceptions; in their enactment they have been careful to provide that we are not, under the general words used by them, to take the English poor laws and bankrupt laws with the rest; these were both of them systems of law framed wholly by English statutes. It cannot be denied to be a maxim that mentio unius exclusio est alterius.' And it may be said that the legislature, in making these two exceptions, evinced their impression, that, if they had not made them, the poor laws and bankrupt laws would, under the words which they had used before in the statute, have been introduced into the province. The argument, consequently, applies quantum valeat; but I am of opinion that we cannot allow it so much force as to admit that every English statute of a general nature, not excepted, is in force because it was not excepted. The legislature, looking on the poor laws and bankrupt laws as unsuited to the condition of the colony, were determined to leave no room for doubt as to their exclusion; and, therefore, for greater caution, expressly excepted them; but if we were, therefore, now to hold that all statutes which they have not excepted, and which could by their nature be enforced here, must, therefore, be binding upon us, we should be making great, and, I fear, absurd, changes in our system of laws, as it has been always hitherto received and acted upon here. The game laws, for instance, are not excepted in the statute; nor the statutes which disable persons from using a trade who have not served seven years apprenticeship (s), nor any of the multitude of acts relating to certain trades and manufactures; and, indeed, it would be easy. to enumerate a long list of statutes, all actually capable of being acted upon in this country, but which, having been passed upon grounds and for purposes peculiar to England, and either wholly or in a great degree foreign to this colony, have never been attempted to be enforced here, and have never been taken to apply to us. And, indeed, several occasions have arisen in

(8) See ante, p. 98.