ciled in the province, seeking to avail himself of the peculiar privileges of the Crown, in order to the assertion of his own private interests, and the Master in Chambers desired that he should not be understood as speaking of a case where the Crown itself seeks to avoid a patent.

In Re The Bell Telephone Co. (z), it was held to be a proper exercise of the powers of the Dominion parliament under this Act, to provide that in case of dispute arising as to the validity of a patent, such dispute should be settled by the Minister of Agriculture, or his Deputy, whose decision should be final. It was held that by the Act a court or judicial tribunal was constituted, and that the Dominion parliament had power to constitute such a court, under section 101 (see post). This question has been already discussed to some extent in chapter XI., ante, p. 230, and further reference to it will be found in the notes to section 101.

23. Copyrights.

This is hardly the place to discuss the somewhat peculiar position in which, under the combined operation of Imperial and Canadian legislation, Canada is placed in relation to this question of copyright. Our power along this line is subject to limitations owing to the existence of Imperial legislation in force in Canada. Smiles v. Belford (a), in which the situation is graphically described by Moss, J.A. (afterwards C.J.O.), is of importance to our subject in another aspect, namely, as affirming the legal supremacy of the Imperial parliament, even over colonies possessed of legislatures of their own, and as limiting the term "exclusive" in this section 91 of the B. N. A. Act, as referable merely to the power of the Dominion parliament as distinguished from that of the provincial legislatures (b). It is hardly (z) 7 O. R. 605.

(a) 1 O. A. R. 436; see also Anglo Canadian Music Publishers v. Suckling, 17 O. R. 239.

(b) See ante, p. 67, and note (x) to sec. 91, ante, p. 350.

conceivable that any question can arise as between the Dominion and the provinces upon this subject, except, perhaps, in relation to "procedure" in copyright litigation, should the Dominion parliament legislate along this line. See note to the last sub-section (22).

24. Indians and lands reserved for the Indians.

The proclamation (a) which followed upon the Treaty of Paris contained provisions designed to protect the aborigines "in the possession of such parts of our dominions and territories as, not having been ceded to us, are reserved to them, or any of them, as their hunting grounds." In the celebrated case of the St. Catharines Milling Co. v. The Queen (b), it was held by the Judicial Committee of the Privy Council, that the interest of the Indians under this proclamation was a personal and usufructuary right, dependent upon the good will of the sovereign.

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." From time to time Indian tribes had surrendered their title to portions of this reserved territory, usually upon terms which secured to them a more definite right of occupation of some small subdivision of it. These smaller tracts were known as "Indian reserves." In Church v. Fenton (c), it was held by all our courts that the above sub-section 24 applied only to these, and not to the larger indefinite areas covered by the proclamation of 1763; but this view is distinctly negatived by the Committee in the case above referred to. Under the holding of that tribunal, the power of the Dominion government is a power of legislation and admin

(a) See Houston, "Const. Doc. of Canada," p. 67.

(b) 14 App. Cas. 46.

(c) 5 S. C. R. 239; 4 O. A. R. 159; 28 U. C. C. P. 384.

istration in respect of Indians, and the lands reserved for them over both these larger areas and the more restricted areas of the "Indian reserves" (so called) until the surrender and extinguishment of the Indian title. The chief matter in dispute in the case was as to the beneficial interest in these lands after such surrender and extinguishment. The Committee gave effect to the contention put forward on behalf of the province of Ontario, that to the provinces accrued the right to "a beneficial interest in these lands, available to them as a source of revenue whenever the estate of the Crown is disencumbered of the Indian title." Upon such surrender they fall into the category of "public lands belonging to the province," mentioned in sub-section 5 of section 92. It would appear, however, that where, upon a surrender, certain rights of hunting and fishing throughout the surrendered territory were still reserved to the Indians, "with the exception of those portions of it which may, from time to time, be required or taken up for purposes of settlement, mining, lumbering, or other purposes,' the question of "the right to determine to what extent, and at what periods, the disputed territory, over which the Indians still exercise their avocations of hunting and fishing, is to be taken up for settlement or other purposes," is still an open one. In that case, there was no pretence of a reservation to the Indians of any right to timber in the territory surrendered, and a permit to cut timber issued by the Dominion government was held invalid. It occurs to one, however, that it would be an easy matter to arrange such terms of conditional surrender, with such reservations of beneficial interest to the Indians, as would practically prevent the provinces from dealing with the land; but whatever is surrendered accrues to the benefit of the province in which the territory is situated. Subject to the burden of the Indian title (with whatever legislative and administrative powers exist in the Dominion government by reason of the existence of that Indian title) the beneficial interest in these lands passed on Confedera

tion to the provinces, the fee, of course, remaining in the Crown. See further notes to section 102, et seq.

25. Naturalization and aliens.

By the Imperial Naturalization Act, 1870, it is enacted that "all laws, statutes, and ordinances which may be duly made by the legislature of any British possession 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.

While, therefore, as between the Dominion and the provinces, this subject is, by this sub-section, exclusively with the former, no legislation by the parliament of Canada can make an alien a British subject quoad the Empire: it can do no more than give him, within the confines of the Dominion, the privileges or some of the privileges of naturalization. Where any question arises as to the national status of a person domiciled in a colony, such question must be determined by the law of England, whilst the rights and liabilities incident to that status must, in Canada, be determined by laws passed by the parliament of Canada (d). The power of a provincial legislature to make laws relative to "property and civil rights in the province" must obviously be read subject to Dominion legislation under this sub-section. It is for the Dominion government to say whether or not, within Canada, an alien. is to lie under any disability and that government can insist that throughout the Dominion an alien may, upon conforming to the provisions of any Act in that behalf passed by the parliament of Canada, become, quoad Canada, a naturalized British subject and enjoy all the privileges accorded by the laws of the provinces to British subjects.

(d) Donegani v. Donegani, 3 Knapp, P. C C. 63; re Adam, 1 Moo. P. C. C. 460.

Connected with this subject is the question of the territorial operation of Canadian legislation discussed in chapter IX., ante, p. 185, et seq. Just as Canadian legislation cannot invest an alien with the character of a British subject outside Canada, so it cannot visit upon natural born British subjects resident in Canada any penalty for acts committed without the Dominion; for, without the Dominion, they are-quoad Canada-British subjects only and their status as citizens of Canada is nought. A fortiori, legislation in reference to the acts of aliens abroad would be invalid.

26. Marriage and Divorce.

Compare section 92, sub-section 12. No case has arisen in our courts in reference to the. line of division between the Dominion parliament and the local legislatures on this subject of marriage; but this sub-section and sub-section 12 of section 92, will be found frequently compared and contrasted, and inferences drawn therefrom as to the proper principles of interpretation to be applied to the various other sub-sections of sections 91 and 92 (e). Judging from provincial legislation since Confederation, it would appear to be conceded that the scope of the first branch of this subsection is limited to legislation as to the status merely of husband, wife, and issue. So far, the scope of the second branch has been limited in practice to private bills legislation. No court for the trial of matrimonial causes has yet been established.

27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.

It will be advisable to defer consideration of the exception-the constitution of courts of criminal jurisdiction—

(e) See Citizens v. Parsons, 7 App. Cas. 96; City of Fredericton v. The Queen, 3 S. C. R. 505.