in that law, working general detriment, their position, as practically part and parcel of general English law, was too fully recognized to be questioned. But-not to mention many English Acts, whose non-applicability (if that be sound ground for rejection) is debateable-many old enactments, some regulative of medieval men by medieval methods, some but parliamentary tombstones, marking the graves of local (English) evils of a temporary character, have been invoked in Canadian litigation-put forward as having been introduced here by colonial enactment, 32 Geo. III. c. 1.

Somewhat of this sort, was the statute passed in 5 Eliz. (c. 4), making void, in the interests of the guilds, articles of apprenticeship for a less term than seven years. It was the first statute upon which argument seems to have been had, and in three early cases it received consideration. In the first (g) of these cases, Robinson, C.J., said: "The provisions of the statute are no longer part of the law of England; they have been repealed (1) as impolitic, even in the condition of that populous country. In my opinion, these provisions were never part of the law of this province." In the second (i), Sherwood, J. (delivering the judgment of the court), says, after referring to the terms of 32 Geo. III. c. 1 (U. C.):

"The intention and meaning of the legislature undoubtedly was, that resort should be had to such of the laws of England as are applicable to the state of society in a British colony, which is very different in many respects from the state of society in England. Courts of justice are to decide on the applicability of the law to any particular case, when doubts arise on the subject; and upon the same principle, they must decide upon the adaptability of any particular law of England to this province, in a general point of view. The statute 5 Eliz. c. 4, is entitled, "An Act containing divers orders for artificers, laborers,

(g) Fish v. Doyle, Drap. 328 (1831).

(h) By 59 Geo. III. c. 96.

(i) Dillingham v. Wilson, 6 U. C. Q. B. (O. S.) 85 (1841).

servants of husbandry, and apprentices"; and the Act itself, from beginning to end, contains internal evidence that no resort can be properly had to it, within the scope and meaning of our Provincial Act already mentioned, as a rule for deciding the manner in which apprentices are to be bound in this province, and the legal effect of such binding. That Act was obsolete in England even before the statute which repealed it. We consider the statute of 5 Eliz. c. 4, as a local Act, which was probably adapted to the state of society in England three hundred years ago, but is not now, and never was, adapted to the population of a colony, and was never in force here."

In the third case (j), it was broadly contended: “The court can not say, that these statutes are not in force; it is not a question of their applicability that is to be decided, the decision must be on the express words of a statute. When the law is to be given to a colony settled and planted by British subjects, we can understand that only such parts of the English statute law as are applicable shall be declared to be in force; but when the statute law is introduced by legislative enactment, there can be no question about the applicability of statutes, as the legislature have shown that their determination was to introduce them all, with the exception of those parts which are expressly excepted." In delivering the judgment of the court, Chief Justice Robinson says:

It cannot possibly admit of doubt that its provisions are inapplicable to any state of things that ever existed here; a clause here and there might be carried into effect in this colony, or anywhere, from the general nature of their provisions; but that is not sufficient to make such a statute part of our law, when the main object and tenor of it, is wholly foreign to the nature of our institutions, and it is there

(j) Shea v. Choat, 2 U. C. Q. B. 211 (1845). The head-note is misleading. In speaking of 20 Geo. II. c. 19, Robinson, C.J., says: My inclination at present is that that statute in its present scope and bearing is not applicable to this province"; but he decided that, even if in force, the pleading could not be supported, not showing a case within the statute.

fore incapable of being carried, substantially and as a whole, into execution."

These cases distinctly affirm, that (leaving out of consideration the Poor and Bankruptcy laws) (k) not every English statute in force in England in 1792, even though such statute was, in a sense, of general application in England, is in force here under the terms of 32 Geo. III. c. 1-that a recognition must be accorded, so to speak, to the differences of environment, and that the courts of Upper Canada should consider the question of the adaptability of any English Act "to the nature of our institutions." To some extent, this view of the effect of 32 Geo. III. c. 1, has not met with entire approval by individual judges in subsequent cases; but, as will be seen, the decided tendency of the authorities has been to support the principle laid down in these three cases.

Baldwin v. Roddy (1) involved the question as to the English Act "for the removal of causes from inferior courts" (19 Geo. III. c. 70). That Act "seemed designed in England to supply a defect which parliament occasioned when they took away arrest from inferior courts in cases. under £10"-the process of those courts could be evaded by the removal of a debtor's effects from the limits of their jurisdiction-and it was held by Robinson, C.J., to be intro ́duced here. "It is a reasonable and good provision, general in its nature; not confined as to locality; not confined to certain courts, or to any amount of judgment, nor incumbered with any forms or requisitions inapplicable to the nature of our courts."

In 1836, the question arose (m), whether the British statute (22 Geo. II. c. 40), for the more effectually

(k) Expressly excepted by 32 Geo. III. c. 1 (U. C.) s. 6.

(1) 3 U. C. Q. B. (O. S.) 166; and see Gregory v. Flanagan, 2 U. C. Q. B. (O. S.) 552.

(m) In Leith v. Willis, 5 U. C. Q. B. (O. S.) 101; followed in Heartly v. Hearns, 6 U. C. Q. B. (O. S.) 452.

restraining the retailing of distilled spirituous liquors,” the 12th section of which denied all right of action to any one selling less than 20 shillings worth at one time, was to be considered in force in Upper Canada or not. The Act contained 32 clauses, as to all of which (other than the 12th section) Robinson, C.J., said: "Not one with any reason can be considered as applicable to this province"; and as to that section he said:

"Upon a view of the whole case, though I feel it difficult to rest a decision upon a perfectly clear ground, I am of opinion that the British Act does not prevent the plaintiff recovering. It was passed in England to meet a particular evil, which was stated to be increasing there of late among a particular class of the inhabitants. We cannot say judicially that the circumstances so far correspond in this province, as to make it a reasonable intendment that a statute passed to meet such exigency in England, is to be treated as a part of the general statute law of England, intended to be introduced into this province."

upon the further ground, too, that the Provincial Act 3 William IV. c. 1, made provisions inconsistent with the provisions of the British Act-probably the safer ground for decision upon fixed principle-the latter was held not in force here.

The English statute 9 Geo. II. c. 36-commonly classed as one of the Mortmain Acts-has been under review in a number of decided cases; and in the argument of counsel and the opinions of the judges, will be found all the considerations which can be urged in support of the two different views-those who would uphold the Act as being introduced here by the Provincial Act 32 Geo. III. c. 1, urging that because the English laws relating to the poor and to bankruptcy, were in terms excluded, the maxim "expressio unius exclusio est alterius" should be applied, and all other English Acts of general application in England, held to be in force in Upper Canada; while those who denied the binding force

of the statute here argued for a more limited introduction of the English law. The latter view clearly prevailed, and the various considerations urged in its support, will appear from a review of the cases. In the result, the statute was decided to be in force in Upper Canada, but only on the ground of its implied recognition by our colonial legislature; the view of a decided majority being, that it was not introduced by the sole force of 32 Geo. III. c. 1. In deciding in favor of the propriety of making comparison between the different situations, material and social, of the mother country and the colony, as well as in treating colonial recognition as a good ground for holding an Imperial Act in force in a colony, the courts of Upper Canada (Ontario) have practically adopted the view of Robinson, C.J., that the terms of the Act 32 Geo. III. c. 1 (U. C.), “do not place the introduction of the English law on a footing materially different from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force, on the principles of the common law, by reason of such colonies having been first inhabited and planted by British subjects" (n). This is the construction to which reference was a short time ago made, as placing Ontario upon the same line in this matter as the maritime provinces, and (as we shall point out) the more lately acquired provinces of the Dominion of Canada.

The leading case, as to this statute of Mortmain, is Doe dem Anderson v. Todd, decided in 1845, from which we have already quoted, and which has been followed in a number of subsequent cases up to 1876, when the Court of Appeal for Ontario, upon a careful consideration of the whole subject, established the decision in the earlier case. To attempt to set forth the views of Robinson, C.J., in language other than his own, would so weaken their effect, that we feel constrained to quote his opinion somewhat at length:

(n) Doe d. Anderson v. Todd, 2 U. C. Q. B. at p. 86.