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exclusively to the colonies, and forming no part of the law of England, we must have held such statutes to be virtually repealed by the Quebec Act, 1774, giving us the criminal law of England, though clearly such an effect never could have been intended.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 nugatory. 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own original foundation, which they had no power to strengthen or weaken; and when the parliament of the Mother Country repealed the original and principal Bubble Act, declaring that it was expedient to leave such practices and schemes to be dealt with according to the common law, they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, Reg. v. Mount & Morris (ƒ). 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 convicted 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 be 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.

was intended to embrace sentences for offences tried in the colonies under the special jurisdiction conferred by 12 & 13 Vic., since there is no trace of any intention on the part of the legislature to change the policy of that Act, which orders these sentences to be passed according to the law of England.

"This construction creates no conflict between Imperial and colonial authority, and in no way affects the rights and privileges of the colonial legislatures. It simply affirms that the Imperial statute, which gave the courts of the colonies quoad offences committed upon the seas beyond their territorial limits, a jurisdiction which their own legislatures could not confer, was altered by a subsequent Imperial Act."

This case, as will be seen, is a pretty strong one, as the alteration of the previous Act (which alteration was held to have effect in the colonies) was an alteration by implication, and not by direct amendment or repeal.

It is beyond the scope of this work to enumerate even briefly the various Imperial Acts (g) which to-day lay down, on various matters, the law for our guidance and submission. The most that can be done is to indicate, with no pretence of exhaustive treatment, some of the subjects

(9) For other cases involving an enquiry whether or not some particular Imperial Act extends to Canada, see:

Routledge v. Low, L. R. 3 E. and I. App. 100-Copyright Act (5 & 6 Vic. c. 45).

In re Lyons, 6 U. C. Q. B. (O. S.) 627-An Act respecting Declarations in lieu of Oaths.

Hodgins v. McNeil, 9 Grant, 305-Lord Lyndhurst's Marriage Act (5 & 6 Wm. IV. c. 54). "The colonies are not mentioned in the Act, nor included by any necessary or even strong intendment."

Thompson v. Bennett, 22 U. C. C. P. 393—Orders in Lunacy (11 Geo. IV. and 1 Wm. IV. c. 60).

Re Squier, 46 U. C. Q. B. 474-Removal of Colonial Officers, (22 Geo. III. c. 75).

Georgian Bay Trans. Co. v. Fisher, 5 O. A. R. 383-Merchant Shipping Acts.

Mowat v. McPhee, 5 S. C. R. 66.

Allen v. Hanson, 18 S. C. R. 667, at p. 681-English Joint Stock Companies Acts.

on which the Imperial parliament does legislate for us. We have adverted, to some extent, to the general nature of such subjects in a previous chapter, and have indicated that they are subjects which are deemed to be of common concern to the whole Empire, but it will be advisable to defer any further remarks upon this branch until we come to treat of those sections of the B. N. A. Act which divide the field of colonial self-government allotted to Canada between the parliament of Canada on the one hand, and the Legislative Assemblies of the various provinces, on the other (h).

(h) The

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Chronological Index," published with the English Law Reports, affords a convenient method of tracing the fate of Imperial Acts. See sub. tit. "Colonies" and the various cross-references.

CHAPTER V.

THE SOURCES OF OUR LAW.

In the last chapter, we pointed out the necessity for a careful distinction between Imperial Acts which are in force in any particular colony because "made applicable to such colony by the express words or necessary intendment" thereof (a) and Acts which (as coming within the term English law, or the law of England) have been, by Imperial grant or colonial adoption, made the law of the colony. A constant guard must be maintained with reference to this distinction. In the last chapter, the extent to which we are subject to the law enacted in and by the former class of Imperial Acts was discussed. This chapter will deal with those Imperial Acts, and those only, which have no expressed reference to the colonies in general, or to any colony in particular, and the enquiry is to be-To what extent are such Acts to be held in force in Canada?

In entering upon this enquiry, it becomes at once apparent that there is a marked variety in the position of the various provinces of which the Dominion of Canada is composed; and that the extent to which English statutory law, of a general character, is in force in the different provinces, is by no means the same. The reasons for this variety are to be sought in the differences which mark their

(a) 28 & 29 Vic. c. 63, s. 1 (Imp.).