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WHAT IMPERIAL ACTS AFFECT US ?
While we have, in the preceding chapters, endeavored to distinguish clearly between the law and the “ conventions” of the constitution, we have necessarily had to deal with both. In the light of the conventions of the constitution, the parliament of the United Kingdom has been described as a legislature possessed of a dual nature, partaking of the character both of an “ Imperial” parliament and of a “local” parliament for the United Kingdom. It must be again admitted, however, that although, by those usages and precepts of the constitution, the field of governmental action properly to be occupied by the Imperial parliament, is practically though not yet perhaps very definitely limited, the law of the constitution recognizes no limit capable of judicial enforcement.
For the whole British Empire, legislative sovereignty resides in the Imperial parliament, and when that body undertakes to legislate for the colonies generally, or for any one of them in particular, its enactments are a law unto such colony, binding on its inhabitants, and peremptorily requiring recognition by the judges in its courts (a); and no colonial legislature has power, directly or by a side wind, to alter, in one jot or tittle, any such Imperial enact
(a) Letter by Historicus, in London Times, June 1, 1879 ; Dicey, Law of the Const.; Clark, Colonial Law, 10.
ment (6). That, in certain instances, colonial legislatures have been empowered by Imperial legislation (c) to exclude their particular colony from the operation of some particular Act—usually upon terms—is the exception which proves the rule. It must be kept clearly in mind, that we are not now discussing the “conventional" limits set to this legislative sovereignty. For the judge and the lawyer, there are no limits; for them there is, in the performance of their respective duties, no escape from the “literary theory.” They have to do with legal rights; and, for Canada at least, legal rights are, in the ultimate analysis, founded upon Imperial enactment. By Imperial enactment, we enjoy representative government; by Imperial enactment, that enjoyment could be (as once indeed it has been) taken from us; by Imperial enactment, the legislative power conferred upon our parliaments, has been more or less limited'; by Imperial enactment only, can a change be effected in those limits. No power, even its own, can tie the hands of the Imperial parliament (1l); and the boundaries set to colonial freedom of action in one session of that parliament may be enlarged in the next, and again restricted in a third. And as in these larger matters, so in any the smallest question (e) involving the legal rights of the individual, if she will, she legally may, and every British judge, in every part of the British Empire, is bound to give effect to the expressed will of the Imperial parliament. So well settled is the paramount legislative authority of the Imperial parliament, that English judges have not hesitated to lay it down that:
"If the legislature of England in express terms applies its legislation to matters beyond its legislatorial capacity,
(6) Craw v. Ramsay, Vaugh., 292, See post, Chap. IX.
(c) E. g. 9 & 10 Vic. c. 94, empowering the colonies to repeal Imp. tariff Acts.
(d) Auchterarder case, Mac. & R. (H.L.) 238; Dicey, Law of the Const., 61.
(e) Such, for instance, as arose in Gordon v. Fuller, infra.
an English court must obey the English legislature, however contrary to international comity such legislation may be" (f).
It may perhaps seem that we have dwelt with undue emphasis on this point, but a glance at some Canadian authorities will make it apparent that, even on the bench, the legislative omnipotence of the Imperial parliament, perhaps we should rather say the legislative impotence of our colonial legislatures to alter an Imperial enactmenthas not been admitted in its entirety without much discussion. Moreover, a clear recognition of this fundamental fact in the structure of the Canadian constitution, should tend to make our statesmen all the more careful that the limits within which this omnipotence is to have "conventional” scope, are clearly defined. The ultimate legal power—whose mandates must be judicially enforcedresiding abroad, our right of self-government should not depend on uncertain usages, but on clearly expressed guarantees.
How are we to know when an Imperial Act extends by its own inherent force to a colony ? It was never contended that English statutes were operative beyond the bounds of the United Kingdom, unless, upon a reasonable construction, there appeared the intention that they should so operate (9). For a long time this question of construction was unaffected by any statutory enactinent, but at the present time the Imperial Act, 28 & 29 Vic. c. 63, provides the canon of construction—“An Act of parliament or any provision thereof shall be said to extend to any colony, when it is made applicable to such colony by the express words or necessary intendment of any Act of parliament.”
(f) Niboyet v. Niboyet, L. R. 4 P. D. 20; and see Reg. v. Keyn, L. R. 2 Ex. D. 152, 160, 207 ; Reg. v. Anderson, L. R. 1C.C. R. at p. 167.
(9) 1 Blackstone, 107, et seq.; Santos v. Illidge, 8 C. B. N. S. 869, 887 ; Routledge v. Low, L. R. 3, E. & I. App. 113; Penley v. Beacon Assce Co., 10 Grant 428; Sussex Peera ze Case, 11 Cl. & F. 146. See further on this point, post, Chap. IX.