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peace, order, and good government, that they would Prop. 17 be entitled to regard any statute directed to these objects, but which a Court should think likely to fail of that effect, as ultra vires and beyond the competency of the Dominion parliament to enact. Their lordships are of the opinion that there is not

discretion of

the least colour for such a contention. The words Are words authorizing of the statute are apt to authorize the utmost the utmost discretion of enactment for the attainment of the enactment. objects pointed to. They are words under which the widest departure from criminal procedure, as it is known and practised in this country, has been authorized in Her Majesty's Indian Empire. Forms of procedure unknown to the English common law have there been established and acted upon, and to throw the least doubt upon the validity of powers conveyed by those words would be of widely mischievous consequences."1

Now, this supremacy of the legislature under our constitution is one of the points in which, in the words of the preamble of the British North America Canada Act, it is a "constitution similar in principle to constitution that of the United Kingdom."2 For as Professor principle to

has a

similar in

that of the United Kingdom.

1And thus in Re Goodhue, 19 Gr. at p. 386, 1 Cart. at p. 569, (1872), Draper, C.J., aptly quotes the words of Mr. Justice Willes in Phillips v. Eyre, L. R. 6 Q.B. at p. 20:-"A confirmed Act of the local Phillips v. legislature lawfully constituted, whether in a settled or conquered Eyre. colony, has, as to matters within its competence and the limits of its jurisdiction, the operation and force of sovereign legislation, though subject to be controlled by the Imperial parliament." See, also, per Gwynne, J., in City of Fredericton v. The Queen, 3 S.C.R. at p. 561, 2 Cart. at p. 54, (1880), and in The Queen v. Robertson, 6 S. Č. R. at p. 65, 2 Cart. at p. 119, (1882); per Ritchie, C.J., in Lynch v. The Canada North-West Land Co., 19 S.C. R. at p. 212, (1891); per Boyd, C., in Reg. v. Brierly, 14 O. R. at pp. 532-3, (1887); per Spragge, C.J., in Reg. v. Hodge, 7 O.A.R. at p. 251, 3 Cart. at p. 167, (1882); per Burton, J. A., S.C., 7 O.A. R. at p. 274, 3 Cart. at p. 179; per Begbie, C.J., in Attorney-General of British Columbia v. City of Victoria, 2 B.C. (Hunter) at p. 5, (1890).

2See per Draper, C.J., in Re Goodhue, 19 Gr. at p. 382, 1 Cart. at p. 566, (1872).

Prop. 17 Dicey says in his Law of the Constitution :-"The The sovereignty of Parliament is (from a legal point of sovereignty view) the dominant characteristic of our," (sc., Parliament. English), "political institutions "1; again, he calls

Professor
Dicey.

5

it "the very keystone of the law of the constitution "2; and he speaks of it as "this marked peculiarity in our institutions." The sovereignty of colonial legislatures, however, is necessarily exercisible only within prescribed limits. As Professor Dicey expresses it1:—“ Colonial legislatures are within their own sphere copies of the Imperial parliament. They are within their own sphere sovereign bodies; but their freedom of action is controlled by their subordination to the parliament of the United Kingdom"; and in Attorney-General of Canada v. Attorney-General of Ontario, Boyd, C., thus defines the position of Canadian legislatures Per Boyd,c. in this matter:-"In relation to the supreme authority of the British parliament, Canada, in its composite character, forms a complete and separate subordinate government, possessing a 'central legislature' for the whole Dominion, and 'local legislatures' for the several members of the colonial Union. These various legislatures hold, in subdivision among them, powers applicable to all classes of subjects and to every purpose of government required for the entire territory and its several provincial parts; but as between the Dominion and the provinces each is an incomplete or limited government, having exclusive jurisdiction

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over certain enumerated classes of subjects, defined Prop. 17 in general terms by the Imperial Constitutional Act. Barring, however, this delimitation of area, the parliament of the Dominion and legislatures of the provinces enjoy each in its own sphere and territory, delegations of sovereign power sufficient for all purposes of effective self-government."

States

And so, even in the United States, although the The United State legislatures are not as independent of Congress legislatures. as our local legislatures are of the Dominion parliament, and although it is there held that the State legislatures possess only a delegated power, and that, as delegata potestas non delegatur, they cannot delegate their powers to any other person or body,2 it is nevertheless said by Redfield, Ch.J., in Thorpe v. Rutland and Burlington R.W. Co.:-" It has never been questioned, so far as I know, that the American legislatures have the same unlimited power in regard to legislation which resides in the British parliament, except where they are restrained by written constitutions. That must be conceded, I think, to be a fundamental principle in the political organization of the American States"; upon which Mr. Bryce thus comments in his Mr. Bryce. American Commonwealth':-"It must not, however, be supposed from these dicta that even if the States were independent commonwealths, the Federal government having disappeared, their legislatures would enjoy anything approaching the

1See as to this the notes to Proposition 61.

2See Bryce's Amer. Comm. (two-volume edition), Vol. 1, p. 451. See also the notes to Proposition 63.

327 Verm. at p. 142; quoted by Cooley on Constitutional Limitations, 6th ed., at pp. 105-6.

4Vol. 1, at p. 429, (two-volume edition).

The omnipotence

of the

British

6

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Prop. 17 omnipotence of the British parliament, whose power and jurisdiction' is, says Sir Edward Coke, so transcendent and absolute that it cannot be parliament. confined, either for persons or causes, within any bounds.' . . Parliament being absolutely sovereign can command, or extinguish and swallow up, the executive and the judiciary, appropriating to itself their functions. But in America a legislature is a legislature, and nothing more. The same instrument which creates it, creates also the executive governor restricted by and the judges. They hold by a title as good as its fundamental own. If the legislature should pass a law depriving

American

legislatures

the

law.

So, also, are the Canadian legislatures.

the governor of an executive function conferred by the constitution, that law would be void. If the legislature attempted to interfere with the jurisdiction of the Courts, their action would be even more palpably illegal and ineffectual."1

The Canadian parliament and local legislatures have more unfettered powers, as has been shown in the notes to Propositions 8 and 9, but neither can override the provisions of the British North America Act, and this is illustrated by a passage in the recent judgment of the Privy Council in the Manitoba school case, Brophy v. The AttorneyGeneral of Manitoba.2 The question there was whether, certain rights and privileges in relation to The Privy education acquired by the Roman Catholic minority the in Manitoba under provincial Acts subsequent to school case. the Union having been affected by a still later Act

Council in

Manitoba

1See supra pp. 124-6. In Murray v. Hoboken Co., 18 How. at p. 284, the Court say:-"We do not consider Congress can either withdraw from judicial cognizance any matter which, from its nature, is the subject of a suit at the common law, or in equity, or admiralty ; nor, on the other hand, can it bring under the judicial power a matter which, from its nature, is not a subject for judicial determination." See, also, Fong Yue Ting v. United States, 149 U.S. at p. 715.

211 R. 35, at pp. 49.50; 11 Times L. R. at pp. 200-1, (1895).

repealing the former Acts, an appeal lay to the Prop. 17 Governor-General under either sub-section 3 of section 93 of the British North America Act, 1867, or under sub-section 2 of section 22 of the Manitoba Act, confirmed as the latter had been by the British North America Act, 1871. Their lordships. say: "The Chief Justice of the Supreme Court was much pressed by the consideration that there was an inherent right in a legislature to repeal its own legislative Acts, and that every presumption. must be made in favour of the constitutional right of a legislative body to repeal the laws which it has itself enacted.'. . Their lordships are unable to concur in the view that there is any presumption which ought to influence the mind one way or the other. It must be remembered that the provincial legislature is not in all respects supreme within the province. Its legislative power is strictly limited. It can deal only with matters declared to be within its cognizance by the British North America Act, as varied by the Manitoba Act. . . It may be said to be anomalous that such a restriction as that in question should be imposed on the free action of a legislature, but is it more anomalous than to grant to a minority who are aggrieved by legislation an appeal from the legislature to the executive authority? And yet. that right is expressly and beyond all controversy conferred. If, upon the natural construction of the language used, it should appear that an appeal was permitted in circumstances involving a fetter upon the power of a provincial legislature to repeal its own enactments, their lordships see no justification for a leaning against that contention, nor do they think that it makes any difference whether the fetter is imposed by express words or by necessary implication."

1See 22 S.C. R. at pp. 654-6.

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