if power over a certain subject matter is not with Congress it must be with the State legislatures, for it may be with neither. The "people of the United States," as a grand aggregate, have limited the power of Congress, and the people of the individual states, viewed as smaller aggregates, have likewise limited the sphere of authority of the different State legislatures. The matters allotted to Congress are, in a sense, specially enumerated, the unenumerated residuum being reserved (subject to certain prohibitions set out in the Constitution of the United States) (c) to the States or to the people; but the State legislatures again may be, and in many cases are, under the State constitutions, bodies with specially enumerated powers. In short, in the American system there are matters over which no body has legislative power, matters held in reserve, as it were, by the people of the United States, or by the people of the respective States. Confining our attention to Congress, we have to point out, what has been before referred to (d), that after the enumeration of the special matters (themselves described in very comprehensive terms) over which Congress is to have legislative power, there follows this clause (e):

"To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof ":

and under this clause, as construed by Marshall and his successors, the powers of Congress in relation to the National government of the United States can hardly be said to be specially enumerated powers only.

Nothing short of the most thorough mastery of the United States constitutional system would warrant one in drawing analogies between the line of division they have adopted and that drawn by the B. N. A. Act. The Judicial Committee of the Privy Council, while not slow to express

(c) Art. I., sec. 10.

(d) Ante, p. 9.

(e) Art. I, sec. 8.

their admiration for the Supreme Court of the United States, and the eminent jurists who from time to time have occupied seats in that tribunal, have always deprecated any attempt to draw analogies between the Canadian and the American systems. The view of the Committee is thus expressed in a late case (ƒ):

"Their Lordships have been invited

to apply to the construction of the Federation Act the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. But he was dealing with the constitution of the United States. Under that constitution, as their Lordships understand, each State may make laws for itself, uncontrolled by the Federal power, and subject only to the limits placed by law on the range of subjects within its jurisdiction. In such a constitution, Chief Justice Marshall found one of those limits at the point at which the action of the state legislature came into conflict with the power vested in Congress. The appellant invokes that principle to support the conclusion that the Federation Act, must be so construed as to allow no power to the provincial legislatures, under section 92, which may by possibility, and if exercised in some extravagant way, interfere with the objects of the Dominion in exercising their powers under section 91. It is quite impossible to argue from the one case to the other."

This passage suggests that, in the view of the Committee, the absence of the power of disallowing State legislation may have led the United States courts to scrutinize that legislation more closely, and may have caused the adoption of the wide interpretation of the article of the "Constitution" above quoted.

(f) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587.

CHAPTER XI.

OUR JUDICIAL SYSTEM.

We have thus far treated of government as divisible into two chief departments-law-making and law-executing --and have not deemed it expedient to complicate the discussion by reference to any further sub-divisions of these two departments. There is however a very distinct division. of the executive department into branches, administrative and judicial; the former concerned with what we may call the ordinary administration of public affairs, while upon the latter devolves the duty of expounding, applying and enforcing law between litigants («).

Tribunals for the administration of justice are an indispensable adjunct of any system of civilized government, and if there can be degrees of importance in connection with such a matter, we would say that in every country where government is a government-according-to-law, due recognition of the authority of the courts is of vital importance to good government; and particularly is this the case where the field for the exercise of the functions of government, both legislative and executive, is divided, and

(a) Of late years there is apparent a tendency to clothe the judiciary with what may be termed "advisory" functions, in aid of the Executive. See R. S. C. c. 135, ss. 37 and 38, and cases noted in Cassel's Dig.; R. S. O. c. 44, s. 52, s-s. 2; Attorney-General for Canada v. Attorney-General for Ontario, 20 O. R. 222; 19 O. R. 31. Also see R. S. O. c. 225; In re R. C. Separate Schools, 18 O. R. 606. The policy of this innovation is questionable. The Courts of the United States have steadily declined to exercise any such functions. See Mich. Univ. Law Lectures, 1889.

where, in consequence, the courts have necessarily to decide on the validity or invalidity of legislative enactments, and of executive action founded thereon (b).

The decision of any case which may come before a court of law, involves the application of law to the facts as they may be admitted, or judicially determined, to exist. Out of every fact, or set of facts there arise "legal relations," and, as was pointed out in the last chapter (c), there can be no conflict of law in reference to any given legal relation, for the law applicable to any given circumstancesto any stated facts-is presumedly capable of definite exposition. It may happen, therefore, that in a case arising in a Canadian court, the law which governs the legal relations which arise out of the facts of the case may be, not the law laid down in either Dominion or Provincial statutes; not, strictly speakly (7), the law of Canada at all: not even Imperial law; but the law of a foreign country. In accordance with that comity between nations, which is now recognized by the tribunals of all civilized countries, those tribunals do not, where the facts out of which the litigation arose occurred in a foreign country, limit the enquiry to what is the law which would govern in case those facts had occured within its own territory. Indeed, in criminal matters, that is to say, where a person is being prosecuted for acts committed abroad, English courts have laid down the rule that such prosecution can only be had in the country where the crime was committed. The administration of international justice, if we may use the expression, is secured in such a case, by handing over the alleged offender to the officers of the country in which the offence is alleged to have been committed: and the jurisdiction of English tribunals has been limited to a preliminary enquiry as to the existence of a prima facie case. With regard to civil matters, the tribunals of most civilized states do not (b) See ante, p. 172. (c) See ante, p. 214. (d) In a sense, the rules of international law are part of the jurisprudence of nearly every civilized state.

recognize any such local venue for their trial. It is beyond the scope of this work to enumerate the various conditions precedent to jurisdiction, laid down in the jurisprudence of the different civilized states, but in all such actions as the courts do entertain, they give effect to legal rights and obligations which may arise out of transactions occurring abroad; and it may happen, therefore, that any modern tribunal may be called upon, at times, to determine, and practically to administer, the law of a foreign country (e).

Every tribunal is, in a sense, subject to territorial limits of jurisdiction. It would be inconsistent with the sovereignty of the different states into which this world is divided, were the judgments of the courts of any one state enforcible, proprio vigore, in the others. But, even within the same state, the territorial jurisdiction of courts of law may be limited. Their jurisdiction, too, may be in many other ways limited and defined, by reason of the subject matter in litigation. Some courts may have jurisdiction over all classes of matters, and throughout the entire territory of the state; others again may have the same wide territorial jurisdiction, but may be restricted to matters of minor importance, or involving smaller amounts. But, however their jurisdiction may be limited, territorially or otherwise, there may arise for determination by them, cases in which the law to be applied is not law laid down by the power to which they owe their creation.

There is hardly any line of division founded upon the nature of the subject matter in litigation, which may not be, or has not been, adopted in some one country or another; but it is not of importance here to pursue this general inquiry further. It is of importance to note that, both in the United States and in Canada, the jurisdiction of a court may be, and in many cases in the former is,

(e) What is the foreign law in such cases is, in British jurisprudence, enquired into as a matter of fact, and must be proved by the evidence of experts versed in such foreign law.

CAN. CON.-15