« AnteriorContinuar »
quently, if effected, it must be by implication. I have already quoted the clause of our first Act, which, in furtherance of the previous clauses adopting the law of England, prescribes the rule of evidence and the forms thereof. Regarding the
whole scope and spirit of our provincial Act, from the first to the last, so far as respects the general adoption of the law of England, it appears to me that 5 Geo. II. c. 7, s. 1, was not repealed, but excluded from operation here by implication, especially by the 5th section introducing inconsistent provisions."
And he proceeds to intimate his opinion that the Imperial statute, 6 Geo. IV. c. 114, which declares void all laws, by-laws, usages, or customs, repugnant to that or other British Acts, referred only to 'laws, usages, etc., founded upon the old systems of colonial government by charter or otherwise,' and not to laws made by colonial assemblies constituted under an Imperial statute.
Chief Justice Robinson, in delivering the judgment of the court, says:
"As a general principle bearing on our introduction of the English law, civil and military, I think . . . that this general adoption (r) of them was not intended to supersede any particular provision that had before been made in respect to a certain matter, by a competent legislative authority, applying itself particularly to the colony. It was an Act to give a general rule in cases not specially provided for. On the other hand, I think this provision of 5 Geo. II. c. 7, does not come within the 46th section of 31 Geo. III. c. 31; and that if it depended on the question whether that clause (and that clause only) disabled our legislature from .repealing it, it would not now be in force. To receive such an affidavit in proof of debt at the trial does certainly militate against the rules of evidence as established in England, and, therefore, after the passing of our provincial statute, 32 Geo. III. cap. 1, it cannot be admitted, unless, 1st, it can be held that the repeal of the British statute, 5 Geo. II. c. 7, is not within the intention of the statute 32 Geo. III. cap. 1; or, 2nd, was not within the power of the colonial legislature."
(r) i.e. by 32 Geo. III. c. 1, (U. C.)
Then, upon a consideration of the provincial Act, 32 Geo. III. c. 1, he concludes that there is no evidence of intent to repeal; and proceeds:
"Secondly. If the legislature intended the repeal, had they the power?
"1st. The direct effect of such repeal would be to take from persons resident in Great Britain, conveniences secured by an express British Act of parliament to them, and them only; and I cannot conceive that 31 Geo. III. c. 31, gives to this legislature such a power. Nothing can be more repugnant to any Act than an attempted repeal of it, and the consequence of being illegal and void must follow, unless the effect of 31 Geo. III. c. 31, is to make our legislature independent of the provisions of the imperial statutes respecting 'repugnancy.' may be contended that it has that effect-1st, because parliament delegated the power to make laws for the colony to our legislature, having the concurrence of the King; and that all that is done by this delegated authority (within their scope) is to be regarded as if done by the British parliament on the principle of execution of powers. 2nd. By specifying certain exceptions to
this power, which do not embrace such a subject as that in question, we must take it there are to be no other exceptions, and that all laws passed in this province not coming within the exceptions and not repugnant to the constitutional Act which creates the power, must be within the competence of our colonial legislature. But to this, I answer-1st. That the power is to make laws to operate directly only on the peace, welfare, and good government of this province (though indirectly they may affect-which is inevitable-persons resident out of it), and that it does not reasonably extend to the repeal of an Act of the British parliament expressly passed to afford facilities to British subjects resident in England. . 3rd. That the British parliament did not mean to give to this colonial legislature, authority to repeal Acts of parliament prior to 31 Geo. III. expressly binding in the colony (and especially such as did not concern the colony merely), is evidenced in the strongest manner by 6 Geo. 1V. c. 114, s. 49 ..
for it provides expressly that all laws in force or practice in any
of the British possessions of America, which are in any wise repugnant to any Act of parliament made, or to be made, in the United Kingdom, so far as such Act shall relate to and mention the said possessions, are, and shall be null and void to all intents and purposes whatever (s).
"It is said that 32 Geo. III. c. 1, repeals the British statute 5 Geo. II. c. 7, in this particular. If it does, it must be repugnant to it. If it be repugnant to it, then it is an Act in force, or attempted to be put in force, in this British possession, repugnant to an Act of parliament made in the United Kingdom relating to and mentioning the British possessions in America; and, therefore, as to such Act, so far as it does relate to and mention such possessions, it is null and void under the Imperial statute 6 Geo. IV. c. 114. We have ascertained that in Lower Canada the Courts have uniformly held 5 Geo. II. c. 7, to be in force as respects the provisions now in question, notwithstanding that the ancient Canadian law, as the general rule of decision, is given by the British statute 14 Geo. III. c. 83 (t), which would make the argument stronger in favor of the supposed virtual repeal" (u).
Another Canadian case, illustrative of the want of full appreciation of our subjection to the supremacy of the Imperial parliament, arose in 1864,-the case of Reg. v. Schram & Anderson (v). These men were charged, under the Foreign Enlistment Act, 59 Geo. III. c. 69 (Imp.), with having tried to procure inhabitants of this province to enlist in the American army. Strange as it may seem, it was seriously argued, that in spite of express words making the Act applicable to all parts of the Empire, it was not in force here, because we had, at the time it was passed, a local legislature. And, although the judgment of the Court was that the Imperial Act in question was in force here, the reasons advanced, indicate no clear distinc
(*) See now 28 & 29 Vic. c. 63, supra. (t) The Quebec Act, 1774. (u) See also Smith v. McGowan, 11 U. C. Q. B. 399, and Gabriel v. Derbyshire, 1 U. C. C. P 422, as showing the judicial dislike of this section of 5 Geo. II. c. 7, and its extension by an Act of Wm. IV.
(v) 14 U. C. C. P. 318.
tion between the legal limits (or want of legal limits) to the legislative power of the Imperial parliament, and the "conventional" limits proper to be observed in the exercise of that power. We quote from the judgment of Chief
Justice Richards :
"The only ground on which we can hold that the statute, 59 Geo. III. is not in force in this country is because we have, and then had, a local parliament, and that enactments of this kind ought to be made by the authority of that parliament, and if not so made, they ought to be held not to be in force here.
By the Constitutional Act, 1791 (31 Geo. III. c. 31), a separate legislature was established in each section of the province, to make laws for the peace, welfare, and good government thereof, such laws not being repugnant to that Act. By the Union Act (3 & 4 Vic. cap. 35), these provinces were again united, and power given to the local legislature to pass laws for the peace, welfare, and good government of the province of Canada, such laws not being repuguant to that Act, or to such parts of the Constitutional Act, 1791, as were not repealed, or to any Act of the Imperial parliament made, or to be made, and not thereby repealed, which did, or should, by express enactment, or by necessary intendment, extend to the provinces of Upper or Lower Canada, or either of them. The very words of the statute seem to imply that the power to legislate on some matters, was, and is reserved to the Imperial parliament, though this province may be affected by such legislation.
"As long as it is admitted that the Home government, by whom the supreme power of the Empire is exercised, is the proper channel through which all our relations and intercourse with foreign governments are to be carried on, the power to pass laws to bind the whole nation, so far as regards those relations and, as necessarily arising out of them, the peace of the Empire, must rest with the Imperial parliament.
"Independently of the doctrine that our local legislature can only exercise such powers as are specially conferred upon it under the statutes passed by the Imperial parliament, there are other points of view in which the question may be considered. Though possessing a domestic legislature, we form part of a
vast Empire, having other colonies exercising similar legislative powers to our own. If any one colony, by passing laws, or refusing to pass laws, produced a state of things wlrich created difficulty with a foreign state, the whole nation might be involved in a calamitous war from the imprudence or recklessness of a very unimportant colony. Considered in this light, it appears to me that the statute which we are discussing relates to the conduct of citizens of the Empire towards foreign states and people, and is on a subject which must be disposed of and legislated upon by the Imperial parliament, as representing the supreme legislative power of the nation, and as to which it is necessary that all the subjects of the Crown should alike be bound. The very preamble of the Act states that the proceedings which the statute prohibits may be prejudicial to, and endanger the peace and welfare of the Kingdom."
And again, in Reg. v. Taylor (w), Chief Justice Draper, in considering the term "exclusive," in the 91st section of the B. N. A. Act, construed it as "intended as a more definite or extended renunciation, on the part of the parliament of Great Britain, of its powers over the internal affairs of the new Dominion than was contained in the Imperial statutes, 18 Geo. III. c. 12 (x), and 28 & 29 Vic. c. 63 (y)," overlooking apparently the fact that such a renunciation would be of no legal effect whatever in restraining future parliaments from legislative interference in the internal affairs of Canada, if so ill-advised as to take such an "unconventional" step. This interpretation of that term "exclusive" has, in subsequent cases, and by other judges, been very emphatically dissented from, and the general principle of the legislative supremacy of the Imperial parliament clearly laid down (≈).
(w) 36 U. C. Q. B. at p. 220.
(x) The celebrated Renunciation Act; see ante, p. 36. As to the legal effect of this renunciation, see charge of Blackburn, J., in Reg. v. Eyre, reported by Finlayson.
(y) The Colonial Laws Validity Act, 1865.
(z) Smiles v. Belford, 1 O. A. R. 436; Reg. v. Coll. of Phys. 44 U. C. Q. B. 564.