exceptions specified in the Act, and with other exceptions, though not specified, of such laws as are clearly not applicable to the state of things existing in the colony, of which various examples might be cited.

"We consider that our adoption of the law of England to the extent and with the exceptions just mentioned, included the law generally which related to marriage. The statute 26 Geo. II. c. 33, being in force in England when our statute was passed, was adopted, as well as other statutes, so far as it consisted with our civil institutions, being part of the law of England at that time relative to civil rights'; that is, to the civil rights which an inhabitant of Upper Canada may claim as a husband or wife, or as lawful issue of a marriage alleged to have been solemnized in Upper Canada.

"The legislature of Upper Canada have so regarded this matter, as appears by the statute 33 Geo. III. c. 5, secs. 1, 3 and 6; 38 Geo. III. c. 4, s. 4; and 11 Geo. IV. c. 36, in which they have recognized the English Marriage Act, in effect, though not in express terms, as having the force of law here in a general sense, and controlling the manner in which marriage is to be solemnized."-P'er Robinson, C.J., in Regina v. Roblin (m).

"No doubt the Act of the 32nd of the late King, introduced all the law of marriage as it existed in England at that date, excepting, perhaps, some clauses of the 26 Geo. II. c. 33. It introduced the Acts 25 Hen. VIII. c. 22; 28 Hen. VIII. c. 7 & 16; and 32 Hen. VIII. c. 38, so far as they remained in force, and so much of the canon law as had been adopted by the law of England."-Per Esten, V.C., in Hodgins v. McNeil (n).

"The legislature of this province has repeatedly recognized that Act as being in force in this province, by from time to time passing laws modifying and qualifying its provisions. See 33 Geo. III. c. 5; 38 Geo. III. c. 4; 2 Geo. IV. c. 11; 11 Geo. IV. c. 36.

66

Having regard to the provisions of the Acts 32 Geo. III. c. 1, and 40 Geo. III. c. 1, to the cases above referred to, and to the recognition thereof by the legislature of this province, as above mentioned, I am clearly of opinion that the Act 26 Geo. II. c. 33, was brought into force in this province by the Acts (n) 9 Grant, at p. 309.

(m) 21 U. C. Q. B. at p. 355.

32 Geo. III. c. 1, and 40 Geo. III. c. 1, so far as its provisions were applicable to the circumstances of this province, and were not inconsistent with the civil institutions thereof; and that, at all events (which is all that I am concerned with in this case), the provision thereof making all marriages which should be solemnized without publication of banns or license of marriage from a person or persons having authority to grant the same, first had and obtained, null and void to all intents and purposes whatsoever, was brought into force.

Unless this provision was so brought into force in this province, there is no provision in this province making void a marriage so solemnized, and the fact that the legislature of this province has never deemed it necessary to make any such provision, is cogent evidence that it considered it unnecessary to do so; because this provision of 26 Geo. II. c. 33, was treated by it as being in force in this province."—Per Armour, C.J., in O'Connor v. Kennedy (o).

From the above cases it will be seen that in reference to Lord Hardwicke's Marriage Act the same principles were invoked as in reference to the Mortmain Acts. In each case the court considered:

1st. Is the British statute one which can be considered as so applicable to the circumstances of this colony, that the legislature must have intended to introduce it by the intrinsic effect of their Act 32 Geo. III. c. 1? This question, in the case of the Mortmain Acts, does not seem to have been unanimously answered by Canadian judges, but the weight of authority would appear to be for a negative answer-in conformity, as will have been noticed, with English decisions. As to the Marriage Act of Lord Hardwicke, there seems to have been no difference of opinionall agreeing in the result arrived at, in favor of an affirmative answer, except as to the 11th and 12th clauses.

2nd. Has there been subsequent legislative recognition by the provincial parliament, of the binding force here of the Act in question? As to both Acts, the answer has been (0) 15 O. R. at p. 22.

unanimously in the affirmative. To these considerations may be added:

3rd. Have the decisions of provincial courts proceeded so clearly upon one line, and for such a length of time, as to have established a rule of law in regard to dealings with property, or in regard to the status of particular classes of persons? In the later cases there can be no doubt this consideration operated most powerfully. In Whitby v. Liscombe (p), in 1876, Mr. Justice Burton uses this language: "Where solemn determinations which establish a rule of property have been acquiesced in for so long a period, a court even of last resort should require very strong grounds for interfering with them"; and Mr. Justice Patterson, speaking of Doe Anderson v. Todd, says: "It has been acquiesced in too long, and has for too long a period governed titles to land in this province to be now interfered with by any authority short of legislative enactment"; and we have already quoted the opinion of Mr. Justice (afterwards Chief Justice) Moss, in which the same. rule of expediency is expressed in those polished periods by which his written opinions are always characterized.

The case Hesketh v. Ward (q), brings into prominence another question proper for consideration, in deciding whether or not a particular Imperial Act (we are of course dealing with Acts in force in England on 15th October, 1792) is in force in Ontario, namely, the question-Is the Act one of general application in England, or is it local, in the sense of being confined to some particular locality or local institution in England? Upon a review of the cases. already mentioned, this consideration will appear to have been always present to some extent, but in Hesketh v. Ward it was the real point for decision. The Acts in question there, were 1 Anne (st. 2) c. 6, and 5 Anne, c. 9, making certain provisions in reference, amongst other matters, to escape warrants. Richards, C.J., after a careful

(p) 23 Grant, 1.

(a) 17 U. C. C. P. 667. See ante, p. 93.

consideration of the first-mentioned statute, decided that it was not part of our law, because “passed with reference to the peculiar position of the officers of the prisons "—the Marshalsea and the Fleet-" to which it referred, and the evils recited in the preamble, which state of things has not, and is not likely to exist in this country"; and again because “in terms it is only applicable to the two English prisons named in it; to remedy evils which the preamble ... refers to as peculiar to persons of the descriptions there referred to, and as to which no apparent necessity exists in this country." The dissenting opinion of Mr. Justice Wilson (afterwards Chief Justice Sir Adam Wilson) is not a dissent in principle, but a joiner of issue on the facts. After a lengthy historical discussion, showing his usual painstaking research, he points out that, " Although it may have a limited application in England to the two special and peculiar prisons of the courts, it is nevertheless general law, and a beneficial one, and an amendment of the law, and as there are no special prisons of the courts here, but all the gaols of the province are equally the prisons of the court, the statute, being such general law by the declaration of the statute itself, has an operation here upon all the prisons of the courts" (7).

a

In a series of cases it was held that the provisions of 14 Geo. III. c. 78, relating to the liability of persons upon whose premises a fire accidently starts, for damages resulting from its spreading to the premises of another, are part of our law, because they were part of the general law of England, introduced by 32 Geo. III. c. 1, and were not of local application there in the sense before referred to (s).

courts

(r) On this principle, many English statutes referring to, e.g., the "at Westminster" have been held to be part of general English law, and as such in force here in relation to our Superior Courts. See 43 Eliz. c. 6, and 13 Car. II. c. 2, as to costs in certain cases, and note the New Brunswick decisions on this point, ante, p. 93.

(s) Gaston v. Wald, 19 U. C. Q. B. 586; Stinson v. Pennock, 14 Grant, 604; Carr v. Fire Ass., 14 O. R. 487; C. S R. v. Phelps, 14

The cases heretofore considered have had relation to the effect of 32 Geo. III. c. 1, and the phraseology employed in that Act, has been relied on in support of the contention for a limited introduction of the English statutory law relating to property and civil rights. We now turn to the Provincial Acts, by which the English criminal law was introduced into this province, and the limits of its applicability defined. As has been already noticed, the Quebec Act, 1774, (14 Geo. III. c. 83), while re-introducing the law of Canada-i.e., the French law in force at the conquestinto the Province of Quebec, as described by the Act, provided for a continuation therein of the criminal law of England.

"XI. And whereas the certainty and lenity of the criminal law of England, and the benefits and advantages resulting from the use of it, have been sensibly felt by the inhabitants from an experience of more than nine years, during which it has been uniformly administered; be it, therefore, further enacted by the authority aforesaid, that the same shall continue to be 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 1764 ;

S. C. R. 132. For other cases in Upper Canada (Ontario) on this subject, see Torrance v. Smith, 3 U. C. C. P. 411, and Hearle v. Ross, 15 U. C. Q. B. 259, in which 26 Geo. III. c. 86, exempting vessel owners from liability for loss through fire, was held to be part of our law; Reg. v. McCormick, 18 U. C. Q. B. 131-Nullum Tempus Act (9 Geo. III. c. 16), in force here; Dunn v. O'Rielly, 11 U. C. C. P. 404, in which the clauses in 22 Geo. II. c. 46, relating to attorneys, were held to be in force here, although other parts of the Act inapplicable (a veritable witches' cauldron, this!); Reg. v. Row, 14 U. C. C. P. 307, in which 28 Geo. III. c. 49, s. 4 (enabling a magistrate for a county-at-large to sit within a city, itself a county, within the boundaries of the county-at-large), was held not to be in force, being local in its character; Bleeker v. Myers, 6 U. C. Q. B. 134; Hart v. Meyers, 7 U. C. Q. B. 416; Garrett v. Roberts, 10 O. A. R. 650-18 Eliz. c. 5, as to suits by informers, in force here.