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In the Maritime provinces, where Imperial Acts relating to navigation were frequently invoked in the Vice-Admiralty Courts existing in those provinces, a clearer view seems to have prevailed as to the operation, within the colonies, of such Acts; and numerous cases are to be found in which, without question, effect was given to their provisions. It would appear, however, that the view was pressed in argument there, just as it was in the courts of the upper province, that a provincial Act, assented to by the Crown, was of equal validity with an Imperial Act, and if later in point of time than an Imperial Act with which it might appear to clash, it should be given effect to, in preference to such Imperial Act. In the case of “The Bermuda” (cl), an attempt was made to attach prize money in the hands of a prize agent, under the provisions of the Nova Scotia statute, 1 Geo. III. c. 8; but it was held by Dr. Croke that this could not be permitted; that the Nova Scotia statute was in this particular “repugnant” to the Imperial “Prize Act,” 49 Geo. III. c. 123, and therefore, to that extent, voil. He, however, notices the contention we have referred to, in favor of the validity of the Provincial Act, and thus disposes of it:
Considering it in another point of view, and giving it every possible validity, still the British Act must be allowed to be of equal authority, and then the provincial Act must be taken to be substantially repealed, so far as it is repugnant to the British Act, which is of a later date."
We may also refer to “The Providence,” in which the provisions of the English Navigation Act (12 Car. II. c. 18) -the second section of which was directed against alien traders-was enforced in Nova Scotia against an American trailer, in 1820 (1). That section, being of express colonial application, and not repealeil by any subsequent Imperial Act, was held by Dr. Croke to be still in force in Nova Scotia, “though not often acted upon."
(a) Stewart, 245.
(1) Stewart, 186.
And in like manner the English Bankruptcy Act (12 & 13 Vic. c. 106) was held to apply to Nova Scotia—so far as to discharge the bankrupt from debts there incurredand an attachment of debts due to him, issued after the fiat, was set aside (c).
When an Imperial Act, made applicable by express words or necessary intendment to any colony, is (even after the establishment of a legislature in such colony) repealed by an Imperial Act, such repeal is operative in the colony. This was one of the points for decision in the old case of Bank of Upper Canada v. Bethune (d), in which it was endeavored to subject the Bank to the disabilities imposed by the English Bubble Acts. The earlier one of these Acts had been repealed by an Act of the Imperial parliament, 6 Geo. IV. c. 91, and in pronouncing the judgment of the court, that by reason of such repeal the Bubble Acts were no longer in force in Upper Canada, Robinson, C.J., brings out clearly :
1st. That the Quebec Act, 1774, and the Provincial Act, 40 Geo. III. c. 1 (upon which two Acts our enjoyment of the criminal law (e) of England rests), were not intended to refer to Acts expressly, or by necessary intendment, made applicable to the colonies in general, or to Canada in particular.
2nd. That such Acts continued to be, as they had always been, in force here by their own inherent vigor alone: and
3rd. That a repeal by Imperial Act would wipe them out of the list of colonial laws. It goes without saying
(c) Hall v. Goodall, 3 Yurd. Epit. 119; Fraser v. Morrow, 2 Thomp. 232, and see also “ The Friends Adventure,” Stewart, 200; “ The Fuma," Stewart, 112; and Congdon’s N. S. Dig. 1336, et seq. , and Steven's Dig. N. B. sub. tit., “ British Statutes."
(d) 4 U.C. Q. B. (O. S.) 165.
(e) The argument is equally applicable in reference to the Act 32 Geo. III. c. 1 (U.C.), introducing English civil law.
that his views are very clearly expressed, and we venture therefore to quote somewhat at length from his opinion:
“My opinion is, that the first Bubble Act has not been in force in this province since the repeal of that statute by the Imperial parliament in their Act of 6 Geo. IV. c. 91. While it was in force, I think it derived its obligations in the colonies, first and principally, from the very words of the statute itself. It was passed in order that its provisions might extend, not merely to London and other parts of the Kingdom, but also to Ireland and other his Majesty's dominions.' It was in force in the colonies by the same act of legislative authority, and its obligation rested on the same foundation in the colonies as in Eng. land.
When, therefore, the legislature determined it to be expedient that the first Bubble Act, or rather those clauses of it which are now in question, should be repealed, and that the several undertakings, attempts, etc., therein prohibited should be left to be dealt with according to the common law, they did, in my opinion, absolve the application of that statute as plainly and as fully in the colonies as in other parts of the Empire where it had been in force. Of course, that must be the effect, unless some statute passed in England or in this colony since the first Bubble Act prevents it. The second Bubble Act, 14 Geo. II. c. 37, cannot, as I think, have that effect. It was never anything but a mere supplement to the first Bubble Act. Omne accessorium sequitur suum principale. The latter statute has nothing to stand upon if the former has been withdrawn. Then we must next consider the effect of “The Quebec Act, 1774," introducing the criminal law of England into the province of Quebec, and of our provincial statute, 10 Geo. III. c. 1, declaring that the criminal law of England, as it stood on 17th September, 1792, shall be the criminal law of this province. Neither of those enactments, in my opinion, were intended to affect, or can properly be construed to affect, the question whether the Bubble Acts are now in force in this province.
“ By the Quebec Act, 1774, the British parliament clearly designed to give to Canada the criminal law of England, as to those objects and in those matters for which no special provision
had before been made by parliament. That statute had no intended reference to Acts of parliament which, from their very terms, already were as much in force in the colonies as in England, and which consequently required no introduction at that period. It left those special laws as they stood. Upon any other principle, if there had been particular penal statutes then in force applying solely and exclusively to the colonies, and forming no part of the law of England, we must have held such statutes to be virtually repealed by the Quebec Act, 1774, giving us the criminal law of England, though clearly such an effect never could have been intended. The Bubble Acts were not peculiarly the law of England - they did not come to us as introduced by The Quebec Act, 1774; they were part of the criminal law of England, and of the other colonies before, and they continued to be so upon the same ground, and no other, after the Quebec Act was passed, as before.
Then, as to our statute 40 Geo. III. c. 1, the point is still more clear. Our colonial legislature, when they passed that Act, must be taken to have been using their discretion and choice in introducing the criminal law of England, in the whole or in part, with or without exception, as they judged best. Now, they had, at that time, no discretion to exercise in regard to these Bubble Acts, because they already formed part of our penal law, being expressly made to extend to this and other colonies by a power beyond that of the provincial legislature. If they had desired to except them they could not have done it, and; therefore, it cannot follow that because they did not except them, they adopted them ; they were not legislating with any view to laws already in force under a power superior to their own. If they had excluded them, the exclusion would have been illegal; if they had introduced them, their declaration to that effect would have been idle and nngatory. I understand the provincial legislature to have left them as they found them, standing upon their own original foundation, which they had no power to strengthen or Weaken; and when the parliament of the Mother Country repealed the original and principal Bubble Act, declaring that it Was expedient to leave such practices and schemes to be dealt with according to the common law, they did, in my opinion, undo all that they had done by that statute, and they neither meant
to leave it in force, nor did leave it in force, in any one part of the British dominions more than in any other."
The principle we are now discussing, namely, the operative force in a colony of an Imperial Act repealing a previous Imperial Act of express application to such colony, was recognized in a comparatively recent case which came before the Judicial Committee of the Privy Council, Rey. v. Mount & Morris (f). These men were tried before the Supreme Criminal Court of the colony of Victoria, upon the charge of murder, alleged to have been committed on board a British ship on the high seas, and were convicte of manslaughter. The jurisdiction to try persons charged with offences committed on the sea, within the jurisdiction of the admiralty, was for the first time conferred upon colonial courts, in 1849, by the Imperial Act 12 & 13 Vic. c. 96, the second section of which provided that convicted persons should be subject to the same punishment “as by any law now in force” persons convicted of the same offence would be liable to, had the offence been committed and the trial had in England.
At the time this Act was passed, the punishment for manslaughter in England was transportation for life. Afterwards, by an Imperial Act, punishment by transportation was abolished, penal servitude being substituted therefor. There was nothing in this Act expressly extending it to the colonies; but, notwithstanding this, the Committee held that the previous Act, 12 & 13 Vic. c. 96, which had conferred on colonial criminal courts the jurisdiction to try such offences as we have mentioned, must be held to be amended (in respect to the sentence to he imposed) by the Act which abolished transportation. Their view is thus expressed :
“When the Imperial legislature substituted penal servitude for transportation, it is reasonable to suppose that the alteration
(f) L. R. 6 P.C. 283.