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tion contained in the opinions of the Chief Justice and Mr. Justice Hill, and because the case is a fitting introduction to our whole subject, we venture to quote somewhat fully from those opinions.
The action was an action on a mortgage, in which the Attorney-General for the province intervened, claiming a charge in priority to that of the plaintiff, by reason of certain debts which were due to the Crown by the mortgagor. The claim was based upon Imperial statutes, 33 Hen. VIII. c. 39, and 13 Eliz. c. 4, the general tenor of which, is sufficiently indicated in the judgments : HALLIBURTON, C.J.
To what extent the laws of the mother country prevail in the colonies settled by her descendants, is a question which has occasioned much discussion without producing any rule approaching to precision for our guidance.
“ The language of elementary writers upon this subject is couched in such general terms and qualified by such numerous exceptions, that they perplex rather than enlighten us.
“Our excellent Blackstone, for instance, says, in his commentaries (1st vol. 101), it hath been held that if an uninhabited country be discovered and planted by English subjects, all the English laws then in being (which are the birth-right of every subject) are immediately there in force.' Had the learned commentator stopped here, he would indeed have laid down a rule so broad as to embrace every case and remove all difficulty ; no distinction is alluded to between the common and statute law, but all the laws then in force in England are to be at once transplanted into the infant colony. His own good sense, however, at once pointed out to him the absurdity of such a position, and he immediately adds: “But this must be understood with very many and very great restrictions; they carry with them only so much of the English law as is applicable to their own situation and the condition of an infant colony'; and among his exceptions, he particularly mentions the laws of police and revenue.
· Among the colonists themselves there has generally existed a strong disposition to draw a distinction between the common
and the statute law. As a code, they have been disposed to adopt the whole of the former, with the exception of such parts only as were obviously inconsistent with their new situations, whilst, far from being inclined to adopt the whole body of the statute law, they thought that such parts of them only were in force among them as were obviously applicable to, and necessary for, them.
“ As it respects the common law, any exclusion formed the exception ; whereas, in the statute law, the reception formed the exception.
“Now, although this view of the subject leads us to nothing very precise, yet, if we adopt it, and I think it wise and safe to do so, we must hold it to be quite clear that an English statute is applicable and necessary for us before we decide that it is in force here,
"The language of C.J. Chipman, in the case of the King v. McLaughlin (e), might induce us to suppose that he did not recognize this distinction, for he says: 'As to the distinction attempted to be drawn by the counsel for the claimants, between the common law and the statute law extending to the colonies, other statutes than those mentioned by the Solicitor-General are daily acted upon’; but when I turn to the expression of this able judge at the commencement of his opinion, I think he sanctions the distinction. He there says: • Each colony, at its settlement, takes with it the common law and all the statute law applicable to its colonial condition. Indeed, the distinction exists in the very nature of things, and is derived from the origin of the two codes. The common law has its foundation in those general and immutable principles of justice which regulate the intercourse of men with men, wherever they may reside. The statute law emanates from the wisdom of the legislature of the day, varies with varying circumstances, and consists of enactments which may be beneficial at one time and
(e) There does not seem to be any printed report of this case, beyond a note of it in Stevens' Dig. (N. B.). It involved the same Imperial Act as was in question in Uniacke v. Dickson ; but, in New Brunswick, the Act was held to be in force. As will be noticed hereafter, the courts of that province have been more liberal in their recognition of the binding force in the province of British Acts; see post.
injurious at another—which might advance the interests of one community, and prove ruinous to those who were differently situated.
“My venerable predecessor, C.J. Blowers, who presided so ably in the Supreme Court for many years, inclined to the opinion, that those statutes only which were in amelioration of the common law, and increased the liberty of the subject, were in force here; and though (as we have no reports of the decisions) my memory does not enable me to mention any particular case which he decided upon that principle, I well recollect that he was invariably influenced by it in all cases to which it was applicable.
* It has been contended that the 33rd of Henry VIII. is in amendment of the common law, and I observe that Mr. Justice Botsford, in the case I have alluded to (Rex. v. McLaughlin), gave a reluctant assent to the adoption of it in New Brunswick upon that ground. The 74th section, to which he particularly alluded, may, perhaps, be deemed to have that tendency, although conflicting decisions have been given in cases arising upon it, in Westminster Hall; but surely, taking the statute
a whole, it never can be considered in that light. But without excluding either statute upon that ground alone, let us, inquire upon what ground they are now, for the first time, to be adopted, when we have had a local legislature for nearly a century, fully empowered to make such laws as the interests of the colony has required..
"In continuing his observations upon the extension of the laws of England to the colonies of the Empire, Blackstone says, in the same page from which I have already quoted, • What shall be admitted and what rejected, at what times and under what restrictions, must, in case of dispute, be decided, in the first . instance, by their own provincial judicature, subject to the revision and control of the King in Council. It is not contended that either of these statutes has ever received this sanction in Nova Scotia. The attempt to enforce them here is now, for the first time, made ; and it appears to me to be incumbent upon those who preside in the respective courts of judicature in this province gravely to consider whether the adoption of their
provisions, if it be judicious to adopt them, is not now rather the province of the legislature than the courts.
"In the early settlement of a colony, when the local legislature has just been called into existence, and has its attention engrossed by the immediate wants of the infant community in their new situation, the courts of judicature would naturally look for guidance, in deciding upon the claims of litigants, to the general laws of the mother country, and would exercise greater latitude in the adoption of them than they would be entitled to do as their local legislature, in the gradual development of its powers, assumed its proper position. Erery year should render the courts more cautious in the adoption of laws that had never been preriously introduced into the colony, for prudent judges would remember that it is the province of the courts to declare what is the law, and of the legislature to decide what it shall be.
"Impressed with this view of the distinct functions of the legislature and the courts at this period of our colonial existence, it does appear to me that if additional fiscal regulations are necessary to assure the due collection and payment of our provincial revenue, it would be more proper to apply to the legislature to adopt such as they may deem prudent, than to require from the courts the adoption of English statutes which were passed centuries ago, under sovereigos who were sufficiently careful of the preservation of their power, and by parliaments who, to say the least, paid as much attention to the prerogatives of the Crown as they did to the privileges of the people statutes, the rigours of which have been diminished in the mother country during the reign of our present gracious Queen, (5 Victoria, c. 11).
"Should this course be pursued, our legislature can introduce similar ameliorations of these statutes, if they think it right to adopt them. The courts have no such power; but, if they adopt them at all, must adopt then in all their rigour.
“The 33rd of Henry VIII., if enforced here as it now stands in the English statute book, would, to a great extent, be destructive of that security to purchasers of real estate which our registry Acts were passed to ensure.
“ The 13th of Elizabeth would partially have that effect also, but not so mischievously, because the officers liable to its provisions would be generally known. But bonds to the Crown, in security for the payment of duties, are given all over the province by persons engaged in the trade and others, and no one could be sure that he was safe in purchasing real estate if that statute should be now adopted.
“There is another objection to the adoption of these statutes which I think has some weight. The Supreme Court has generally considered that when the local legislature has legislated upon any particular subject, relative to which English statutes had previously existed, the colonial courts are to be guided by the provincial and not the English statutes in deciding questions upon such subjects. Thus, upon a claim of a mother to succeed to the personal estate of her deceased child, to the exclusion of her other children, the Supreme Court of this province decided that she was entitled to do so, because our legislature had re-enacted the provisions of the statutes of Charles II. upon that subject, but had not at that time (although they have since) re-enacted those of 1 James II., which latter statute had passed before we had a local legislature.
“Now, our legislature have had the subject of the securities necessary to be given for the safe collection of the revenue, under their consideration, and have passed laws upon that subject, which direct that the officers appointed to collect it shall give bonds, in which they shall be joined by sureties, for the faithful discharge of their duties; and that those who import goods liable to pay duties to the Crown, under the Acts of this province, shall not only give bonds for the payment of those duties as they become due, but shall also give warrants of attorney to confess judgment upon those bonds; a measure that would have been unnecessary if the statute of Henry VIII. was in force here, for that statute would have made the bonds themselves debts of record. If these sureties are not sufficient, the legislature, and not the courts, should be applied to, to remedy the evil.
“For these reasons I am of the opinion that these statutes, on which the Attorney-General has founded the right of the Crown