CHAPTER IX.

COLONIAL LEGISLATIVE POWER.

We have now pointed out that, in common with other British colonies, legislative power in Canada is subject to certain limitations, arising from the colonial relationship. Not only must the assent of the Crown as a constituent branch of the legislature be given (@); the Act so assented to must run the gauntlet of the Home Government (); having done so, it may still, by judicial decision, be declared absolutely void and inoperative by reason, and to the extent, of its "repugnancy" to Imperial legislation having the force of law in Canada (b).

Much must be hereafter said in reference to the division, in Canada, of the subject matters proper for legislative action, between the parliament of Canada on the one hand, and the legislative assemblies of the respective provinces on the other; but for the purpose of the enquiry to which this chapter is to be devoted, this division of the field may be disregarded. We desire to treat of the power of legislation as a totality, and to ascertain what, if any, further bounds are set to that power in this British colony.

It may be argued that this question is settled by the Colonial Laws Validity Act, 1865 (c), and that as any colonial law is to be held inoperative to the extent of its

(a) See Chap. VII. ante, p. 147. (b) See Chap. IV. ante, p. 58, et sey. (c) 28 & 29 Vic. c. 63 (Imp.).

repugnancy, but not otherwise, it impliedly follows that all colonial laws not open to the charge of repugnancy must be held operative, and that therefore the power of legislation is-subject only to the limitations already adverted to -as full as that of the Imperial parliament, and that colonial laws are equally obligatory on courts of justice. But a proposition formerly («) laid down must not be overlooked; namely, that in the last analysis our rights, legally speaking, are held under Imperial grant, and to our right to legislate this proposition is particularly applicable. In other words, we must always refer to the colonial “Charter" -proclamation, commission, or Imperial Act-containing the grant of legislative power, to ascertain its extent; and beyond the limits therein laid down, the power cannot extend. For us, this, Charter is the B. N. A. Act, and the terms of the grant are of the widest possible description (saving always Imperial sovereignty), and—subject to the division of the field between the Dominion and the provinces and subject always to the checks to which we have referred-the power of legislation is supreme in relation to all matters within the limits of colonial legislative power. This principle is fully recognized in the judgment of the Judicial Committee of the Privy Council in a case involving consideration of the position of the Legislature in IndiaQueen v. Burah (e). Lord Selborne, delivering the unanimous opinion of the Committee, referred to the judgment of the court below, as in effect treating the Indian Legislature as an agent or delegate, acting under a mandate from the Imperial parliament, and dissented from that judgment in the following forcible language:

"But their Lordships are of opinion that the doctrine of the majority of the court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has powers expressly limited by the Act of the Imperial parliament which created it, and it can, of course, do (d) Chap. IV. ante, p. 56. (e) L. R. 3 App. Cas. 904.

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nothing beyond the limits which circumscribe these powers. But when acting within those limits, it is not in any sense an agent or delegate of the Imperial parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established courts of justice when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would of course be included any act of the Imperial parliament at variance with it) it is not for any court of justice to inquire further, or to enlarge constructively those conditions and restrictions" (1).

In an earlier case in the Court of Queen's Bench, and afterwards, on appeal, in the Exchequer Chamber-the cause celebre of Phillips v. Eyre ()-the judges of those courts had to consider the position and powers of a colonial legislature, and the extent of the operation of colonial enactments. As a defence to the action, which was brought in England, for trespasses alleged to have been committed in Jamaica, the defendant, governor of the island, pleaded an Act of Indemnity passed by the Jamaica Legislative Assembly. The plea was demurred to, and the question was thus raised, (1) as to the power of the colonial assembly to pass an Act of Indemnity, and (2) as to the extra territorial operation of that Act. For the defendant it was argued that by the law of England the legislature of a colony is supreme within the boundary of the colony; that the courts in this country are bound to recognize the laws

(f) Compare the language of Marshall, C.J., in McCulloch v. Maryland, 4 Wheat. 421 (United States S. C. Rep.), quoted at p. 92 of the Mich. University Lectures of 1889, published sub. tit. "Const. Hist. as seen in American Law."

(9) L. R. 4 Q. B. 225; 6 Q. B. 1.

which the colonial legislature make as part of the English law: that the Crown may refuse its consent to a colonial Act: the Imperial parliament may interfere, and the laws which the colonial legislature make must not be "repugnant" to the law of England, as that word is explained in 28 & 29 Vic. c. 63; but, subject to those qualifications, the laws passed by the colonial legislature and made with reference to acts committed within their jurisdiction, are as binding as the laws of the Imperial parliament; that English courts recognize them, not through international courtesy, but because they must be taken to be part of the law of England (); and that it may well be, that the colonial legislature have no power to take away a remedy from a British subject, but they may discharge a cause of action which has accrued within the limits of their territory.

In delivering the unanimous judgment of the Court of Queen's Bench, Chief Justice Cockburn says:

It cannot be disputed that the Jamaica Legislature, having full legislative authority within the limits of the colony, subject only to the assent of the Crown, had full power to pass the statute in question, so far as to take away the right of action before the local tribunals but it is contended on the part of the plaintiff, that a right of action being given before the courts here, in respect of personal wrongs committed in a colony, this right cannot be taken away by an Act having no legislative effect beyond the limits of the local authority. It may be useful to consider what would have been the effect if, instead of legislating er post facto, the Legislature of Jamaica in anticipation of future events, had passed a statute authorizing the acts which have given rise to this action. We cannot doubt that in such a case, no right of action would arise here. . It remains to be seen how far this principle will apply where an act, admitted to have been unlawful when done, is legalized and divested of its tortious. -character, and immunity is afforded to the wrongdoer in respect

(1) See Redpath v. Allen, cited post.

of it, by ex post facto legislation. We are, however, of opinion that the same principle which we have stated to be applicable to an act made lawful by former legislation, is equally applicable to an act originally wrongful, but legalized by an ex post facto law. Local Legislatures having been established in our colonies with plenary powers of legislation, the same comity which obtains between nations, should be extended to them by the tribunals of this country, when their law conflicts with ours, in respect of acts done within their jurisdiction. . . . Plenary power to make laws having been conferred on the local legis lature, subject to the assent of the sovereign, it cannot be disputed that it was within its competence to pass the law referred to in the plea, and the only question is, whether the effect of it is to deprive the plaintiff of the right which he would otherwise have had, of maintaining an action in this country. For the reasons we have given, we are of opinion that such is its effect, and consequently that on the demurrer to the plea, our judgment must be for the defendant."

In the Exchequer Chamber (i), the court was again unanimous, and Mr. Justice Willes, in delivering the judgment of the seven judges of which the court was composed,

says:

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It seems to be plainly within the competence of the legislature, which could have authorized by antecedent legislation the acts done as necessary or proper for preserving the public peace, upon due consideration of the circumstances to adopt and ratify like acts when done, or in the language of the law under consideration, to enact that they shall be made and declared lawful and confirmed.' Such is the effect of the Act of Indemnity in question, which follows the example of similar legislation in the mother country, and the other dominions and colonies of the Crown.. .. The Crown has in numerous instances granted charters under which houses of assembly, and legislative councils, have been established for the government of colonies. whether conquered or settled; and such councils and assemblies have from time to time made laws suited to the emergencies

(i) L. R. 6 Q. B. 1. Counsel for the plaintiff referred to the B. N. A Act as conferring supreme powers.