Imágenes de páginas

A very different question this, from the question, how far English statutory law, of no expressed colonial application, has been, by Imperial grant or colonial adoption, embodied in the legal system of a colony. We are now dealing with Acts of the Imperial parliament, which, when passed, were, by "express words or necessary intendment," made applicable to our colony. The former question will be found treated in subsequent pages; but it may now be mentioned that, as a general rule, it is limited to a consideration of the English statutory law as it existed at the time of the introduction of English law into the colony. Imperial enactments of a general character, passed subsequently to such introduction, are not operative within the colony (h). But it follows from what has already been laid down, that there can be no time limit with regard to the class of Imperial enactments now under discussion. Of course, in the case of statutes passed prior to the acquisition of a colony, there must be the "express words or necessary intendment" requisite to make such enactment applicable to colonies to be thereafter acquired; but it is simply a question of construction-an enquiry as to the intention of the Imperial parliament.

It also necessarily follows from what we have said, that any colonial enactment inconsistent with an Imperial enactment on the same subject-which is the earlier and which the later, makes no difference is inoperative; and so far did the English authorities carry this doctrine of repugnancy," that colonial enactments inconsistent with the principles of the English common law, as well as those inconsistent with Imperial enactments (of the class we are now discussing), were considered inoperative; and "repugnancy," in one portion even, was considered to invalidate

[ocr errors]

(h) Harrison v. Spencer, 15 O. R. 692—the “Thellusson Act," 39 & 40 Geo. III. c. 9 (Imp.); Rex v. Vaughan, 4 Burr, 2500; and cases cited in last note; and see James v. McLean, 3 Allen, 161 (Nova Scotia), in which 2 Geo. II. c. 23 (Imp.), was held not to apply to a colony settled before the Act was passed.

the whole of a colonial enactment. It cannot be said that the authorities were clear to the extent mentioned, but there was a respectable opinion tending in that direction (i). The Act to which we have already referred (commonly known as "The Colonial Laws Validity Act, 1865,") was passed to clear away these uncertainties. It recites that doubt had been entertained respecting the validity of divers laws enacted, or purporting to be enacted, by colonial legislatures, and respecting the powers of such legislatures, and after laying down the canon of construction already quoted it enacts:

"II. Any colonial law, which is or shall be repugnant to the provisions of any Act of parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of parliament, or having in the colony the force or effect of such Act, shall be read, subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.

"III. No colonial law shall be, or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of parliament, order, or regulation, as aforesaid" (j).

Commenting on this Act, Willes, J. (in delivering the unanimous judgment of the seven judges of the Exchequer Chamber, in Phillips v. Eyre, involving a consideration of a certain “Act of Indemnity" passed by the legislature of Jamaica), says (k):

"It was further argued that the Act in question was contrary to the principles of English law (1), and, therefore, void. This

(i) Bowman v. Middleton, 1 Bay, 252. This limitation has even been suggested as applying to Imperial legislation-12 Rep. 76; see Dicey, Law of the Const., 59, note 1.

(j) 28 & 29 Vic. c. 63 (Imp.). (k) L. R. 6 Q. B. at p. 20.

(1) Because ex post facto legislation. See In re Goodhue, 19 Grant, 366; and post, Chap. IX.

is a vague expression, and must mean, either contrary to some positive law of England, or to some principle of natural justice, the violation of which would induce the Court to decline giving effect even to the law of a foreign sovereign state. In the former point of view, it is clear that the repugnancy to English law which avoids a colonial Act means repugnancy to an Imperial statute, or order made by authority of such statute, applicable to the colony by express words or necessary intendment; and that, so far as such repugnancy extends, and no further, the colonial Act is void. To what Act, order, or regulation, then, is the Jamaica Act of Indemnity and oblivion repugnant? (m) It was further objected that the colonial law was contrary to natural justice, as being retrospective in its character, and taking away a right of action once vested, and that for this reason, like a foreign law against natural justice, it could have no extra-territorial force."

[ocr errors]

This objection, too, was overruled; but, as we shall have to touch upon this particular class of objection to colonial legislation at a later stage, we omit further comment here.

As we have already intimated, it has been seriously contended in the courts of this country that, under what is known as the Constitutional Act, 1791 (n), the Imperial parliament had so far, at least, as concerns Imperial statutes of a date prior to its passage-given to the legislatures of Upper and Lower Canada power to annul, by direct repeal or inconsistent enactment, Imperial legislation of express colonial application.

In 1836, in the case of Gordon v. Fuller (0), it was decided that the first section of the Imperial Act, 5 Geo II., c. 7 (to the fourth section of which we trace our fi. fa,

(m) See further, as to what constitutes "repugnancy," Reg. v. Sherman, 17 U. C. C. P. 167. Reg. v. Slavin, ib. 205, seems to lay down bad law (pp. 210-11), that, because a Canadian Act is later than an Imperial Act, "the question as to any conflict between them does not arise." Reg. v. Sherman seems to foreshadow this error.

(n) 31 Geo. III. c. 31 (Imp.). (0) 5 U. C. Q. B. (O. S.) 174.

lands) (p), respecting affidavits to be made in England for proof of debts sued for in this colony, was not repealed by the provincial Act, (32 Geo. III. c. 1, s. 5), but from the judgment of the court, Mr. Justice-afterward Chief Justice -Macaulay dissented; and, in order to appreciate the force of the opinion delivered by Chief Justice Robinson in support of the judgment of the court, we quote first from that dissenting opinion; and, as these earlier opinions contain a large amount of clear and instructive historical statement in reference to the early constitutional history of this country, we venture to give them somewhat at length. Mr. Justice Macaulay says:

"In 1791, the 31 Geo. III. c. 31, in contemplation of a division of the provinces, provided the present constitution, and forms the source from which the powers and authorities of our provincial statutes flow. It authorized the formation of local legislatures, and enacted that his Majesty should have power, with the advice and consent of the legislative council and assembly in each province, to make laws for the peace, welfare, and good government thereof, not being repugnant to that Act. All which laws are thereby declared to be, by virtue of and under the authority of that Act, valid and binding to all intents and purposes whatever, within the provinces respectively. The two principle questions are-1st. Whether the provincial legislature possessed the power to subject suitors in actions for money demands, resident in England, to the lex loci in this respect to the same rules of evidence prescribed for the inhabitants of the colony and all others; in other words, to remove the operation of 5 Geo. II. c. 7, from this province as a rule in such cases, or to introduce incompatible regulations on the same subject. And if so-2ndly, whether by implication (for it is not done in express terms) such effect has been accomplished. The statute 5 Geo. II. does not include all suitors and witnesses living in England, but extends only to cases of debt or account, and

(p) See the very interesting case, Gardiner v. Gardiner, 2 U. C. Q. B. (O. S.) 554, in which the right of a creditor to sue out a fi. fa. lands, is exhaustively discussed.


[ocr errors]
[ocr errors]

perhaps contemplated only those contracted in England. First, as to the power: I consider it imparted by 31 Geo. III. c. 31, which is very comprehensive, and almost unlimited in its Subject to the exceptions therein expressed, I do not see that the powers of the colonial legislatures are otherwise abridged, so far at least as respects the laws in force at the time it was first organized, however liable to control by subsequent Imperial statutes, naming the province, or including it in a more general allusion to the North American possessions .. The King has almost unqualified power to make laws, binding upon and within the province, with the advice and consent of the legislative council and assembly; not as a mere prerogative right, or under a system of government established by commission as a royal government emanating from the grace and prerogative powers of the Crown, but by virtue of a British statute, which says that all laws so made (if not repugnant thereto) shall, by virtue of that Act, be valid and binding; and in order not to abridge the superintending control of his Majesty's government, a double negative is granted to his Majesty, who may annul and disallow Acts, although assented too in his name by the governor or lieutenant-governor representing him in his provincial parliament here. With these and other such qualifications and safeguards as the Imperial parliament deemed expedient, free scope is given to the action of the colonial legislature in all other respects; so much so, that I cannot but regard the provincial statute, when duly passed, of equal force within the province with British statutes, when not repugnant to 31 Geo. III. c. 31. In other words, I feel constrained to read the fifth section of our first Act () as if it had been incorporated in 31 Geo. III. c. 31, and formed one of its provisions, and conceive it competent to the provincial parliament (as a mere question of power) to exclude the operation of 5 Geo. II. c. 7, in any or in all respects by an Act duly assented to by or on behalf of his Majesty; and, if so, to produce the same effect by implication arising from the introduction of incompatible or other contradictory regulations. . . . The second inquiry-whether this clause of it has been excluded. No provincial Act mentions it by name, and, conse

(q) 32 Geo. III. c. 1 (U. C.), introducing English law into Upper Canada.

« AnteriorContinuar »