Imágenes de páginas

is obvious that such an authority is ancillary to legislation, and without it an attempt to provide for varying details, and machinery to carry them out, might become oppressive or absolutely fail.

It was argued at the bar, that a legislature committing important regulations to agents or delegates, effaces itself. That is not so. It retains its powers intact, and can, whenever it pleases, destroy the agency it has created, and set up another, or take the matter directly into its own hands. How far it shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legislature and not for courts of law to decide."

In the still more recent case of Powell v. Apollo Candle Co. (m), the Judicial Committee of the Privy Council expressed their continued adherence to the opinions laid down in the earlier cases to which we have referred.

The power of the Dominion parliament to legislate for the peace, order, and good government of the North-West Territories (conferred by 34 & 35 Vic. c. 28, Imp.), was held to be the same plenary power of legislation as is possessed by the Imperial parliament (n).

Applying, then, the rule so clearly laid down by Lord Selborne in the earlier case (o), we have to look to those terms of the B. N. A. Act:

1. By which, affirmatively, the legislative powers are created.

2. By which, negatively, they are restricted ; and we have to note that affirmatively the legislative power is of very wide range, namely, to “make laws in relation to the various matters enumerated in the Act, and that of express negative restriction there is no sign within the four corners of the Act.

But as we are a Dominion under the Crown of the United Kingilom” (p), there must be in any Canadian

(in ) 10 App. Cas. 282.
(11) Riel v. Reg., 10 App. Cas. 675; see post.

(6) ante, p. 178. (p) See preamble to B. N. A. Act and nutes thereto, post.

legislation a saving of the sovereignty of England. In the Quebec Resolutions, upon which the B. N. A. Act is founded, this restriction is express (q); but in the Act itself it was no doubt deemed unnecessary to insert any words of express restriction upon this point, as it is an implied restriction upon all colonial legislation (). In a very early case (s), Chief Justice Vaughan, under the heading “What the purliament of Ireland cannot do," says:

1. It cannot alien itself, or any part of itself, from being under the dominion of England: nor change its subjection.

2. It cannot make itself not subject to the laws of and subordinate to the parliament of England (t).

3. It cannot change the law of having judgments there given, reversed for error in England; and others might be namned ()

4. It cannot dispose the Crown of Ireland to the King of England's second son, or any other but to the King of England.

And in a Canadian case it is laid down, that legislation inconsistent with its relation to the Empire of which it forms a part, would be “ unconstitutional ” and void ("").

The second and third propositions laid down by Chief Justice Vaughan, have been alreally discussed, with the exception of the question as to the prerogative right of the Crown to hear, in the Privy Council, appeals from Colonial judgments; this must be dealt with hereafter. Propositions 1 and 4 relate no doubt to extreme cases, which can hardly arise in this age, but there are many matters in respect to

(9) Resolution No. 29.

(*) Dicey •Law of the Const.' 105. (*) Craw v. Ramsay, Vaugh. 292. (t) See Chap. IV. ante.

(u) i.e., it cannot legislate in reference to the prerogative right of the Crown to hear and determine appeals from colonial courts; or change a law of express colonial application.

(1) International Bridge Co. v. Can. Southern Rv., 28 Grant, at p. 134; see also Tully v. Principal Officers of H. M. Ordnance, 5 V. C. Q. B. 6.

which we possess no legislative power because its exercise would be a usurpation of sovereignty in its international sense ().

There is a further implied restriction upon our legislative power, viz., that by the very terms of the grant that power is territorially limited (r); and this branch of our suloject is of so much importance that we must give it careful attention (y). It will help to a solution of our problem if we consider, first, the legislative powers, — territorially considered—of the Imperial parliament. That borly is the authorized exponent of the will of the nation in its international sense, and so far as other nations are concerned, its enactments are of course inoperative beyond the borders of the Empire, including within those borders, the “floating islands” of the British nary and mercantile marine (2).

In a work of recognizeil authority (a), certain canons of construction are laid down as applicable to Imperial statutes, which may be shortly stated. Prima facie, enactments of the parliament of the United Kingdom are operative only within the United Kingdom, and do not extend to the colonies (1), nor to British subjects (nor, a fortiori, to foreigners) out of the United Kingdom (c); unless there is the intention ** clearly expressed or to be inferred either from its

(ur) Səe B. N. A. Act, ss. 9 and 132.
(s) See 9'App. Cas. 117, passage quoted ante, p. 182.

(y) No text writer gives this matter more than a passing notice. See Dicey, “ Law of the Const.” p. 97, note (3).

(2) Reg. v. Anderson, L. R. 1 C. C. R. 161; Reg. v. Carr, L. R. 10 Q. B. D. 76.

(a) Maxwell, “ The Interpretation of Statutes,” Chap. VI. (!) See Chap. IV. ante, p. 57, et seq.

(c) Arnold v. Arnold, 2 Myl. & Cr. at p. 270; Jeffreys v. Boosey, 4 H. L. Cas. 815; Cope v.

Doherty, 2 DeG. & J. 614; ex parte Blain, L. R 12 Chy. D. 522. Laws as to į rocedure in actions, including the limitations of a time within which pryceedings are to be taken---leges jori-are of course binding on all litigants, subjects or foreigners; Lopez v Burs. lem, 4 Moo. P. C. 405.

language or from the object or subject matter or history of the enactment” (1/). The Colonial Laws Validity Act, 1865, gives the canon of construction in reference to Imperial enactments which are to be held to extend to a colonythere must be the “express worls or necessary intendment" of the Act. But in any case, if the language of an Imperial Act of parliament, unambiguously and without reasonably admitting of any other neaning, applies to foreigners abroal, courts of justice, the Empire over, must obey and administer it as it stands, for they cannot question the authority of the Imperial parliament or assign any limits to its powers (e). The entire ground would seem to be covered by the language of Brett, J., in delivering juilgmentin a late English case (1):

General words in a statute, have nerer, so far as I am aware, been interpreted so as to extend the action of the statute beyond the territorial authority of the legislature. All criminal statutes are in their terms general; but they apply only to offences committed within the territory, or by British subjects. When the legislature intends the statute to apply beyond the crdinary territorial authority of the country, it so states expressly in the statute, as in the Merchant Shipping Act, and in some of the Admiralty Acts. If the Legislature of England, in express terms, applies its legislation to matters beyond its legislatorial capacity, an English court must obey the English legislature, however contrary to international comity such legislation may be. But unless there be definite express terms to the contrary, the statute is to be interpreted as applicable, and as intended to apply only to matters within the jurisdiction of the legislature by which it is enacted." but we may be allowed to quote also from the opinions of

(d) Maxwell, 169-70; The Sussex Peerage Case, 11 Cl. & F. at p. 116; Jeffreys v. Boosey, 4 H. L. Cas. 815 ; Brook v. Brook. 9 H. L. Cas. 193 ; Cope v. Doherty, 2 DeG. & J. 614. And see Rez. v. Keyn, L. K. 2 Ex. D. 63 ; Routledge v. Low, L. R. 1 Chy App. 42, 3 E. & I. App. 113 ; Atty.Genl. of Hong-Kong v. Kwok-a-Sing, L. R. 5 P. C. 198.

(e) Maxwell, 179-80.
(1) Niboyet v. Niboyet, L. R. 4 P. D. at pp. 19-20.

two very eminent English Judges, --who in succession, occupied the position of Lord Chief Justice of England in a very celebrated case arising out of the sinking of the English steamer “Strathclyde” by the German steamer “ Franconia,” off Dover, in 1876 (9). Chief Justice Coleridge says:

• I do not of course forget that it is freely adınitted to be within the competency of parliament to extend the realm how far so ever it pleases to extend it by enactments, at least so as to bind the tribunals of the country.”

Chief Justice Cockburn says:

Now no proposition of law can be more incontestable, or more universally admitted, than that, according to the general law of nations, a foreigner though criminally responsible to the law of a nation not his own, for acts done by him while within the limits of its territory, cannot be made responsible to its law for acts done beyond such limits.

This rule must however be taken subject to this qualification, namely, that if the legislature of a particular country should think fit, by express enactment, to render foreigners subject to its law, with reference to offences committed beyoad the limits of its territory, it would be incumbent on the courts of such country to give effect to such enactment, leaving it to the state to settle the question of international law with the governments of other nations."

From these authorities, we may conclude that if the Imperial parliament should enact that any person, British subject or foreigner, committing such-and-such an act abroad, should, if found within British territory, suffer, upon conviction, a certain punishment(h); or that, in decidling a civil action in respect to contracts made abroad, to be performed abroad, English law should govern; there is on doubt, every British court of justice would be obliged to

(9) Reg. v. Keyn, L. R. 2 Ex. D. 63, at p. 152 and p. 160.

(h) See sec. 267 of the Meruhuat Shipping Act, 1854; Reg. v. Anderson, L, R. 1 C. C. R. 161. It required statutes to authorize a trial in one county of England for an offence committed in another county. See the valuable note to Keighley v. Bell, 1 F. & F. at p. 790.

« AnteriorContinuar »