CHAPTER III.

WHAT IMPERIAL ACTS AFFECT A COLONY?

The subject divides itself into two branches:

(1) Imperial Acts which extend to a colony because made. applicable to such colony by express words or necessary intendment;

(2) Imperial Acts which, as part of the law of England, have been carried to a colony by its first settlers or which by the action of the Home authorities or by colonial adoption have been established as the basic law of the colony.

An Imperial statute of the first class, whatever its date, is in force in a colony proprio vigore as an enactment of the sovereign legislature of the Empire; it cannot be repealed or amended by the colonial legislature; and any colonial legislation repugnant to it is, to the extent of such repugnancy, absolutely void and inoperative.

Imperial statutes of the second class are necessarily of date anterior to the introduction of English law into the colony, and are in force only by the sufferance of the colonial legislature, which may repeal or amend them (so far as relates to their colonial operation) either directly or by repugnant legislation.

(1) Imperial Acts which extend to a colony because made applicable to such colony by express words or necessary intendment.

For the whole British Empire legislative sovereignty resides in the parliament of the United Kingdom.1 No power,

1 Reg. v. Marais, (1902) A. C. 51; 71 L. J. P. C. 32; Algoma Central Ry. Co. v. Reg. (1902) 7 Exch. Ct. R. 239; New Zealand Loan Co. v. Morrison, (1898) A. C. 349; 67 L. J. P. C. 10; Metherell v. Coll. of Phys., (1892) 2 B. C. 189; Callender v. Col. Secy. Lagos, (1891) A. C. 460; 60 L. J. P. C. 33; Ex p. Renaud, 1 Pug. (N.B.) 273; 2 Cart. 445; Reg. v. Coll. of Phys., (1879) 44 U. C. Q. B. 564; 1 Cart. 761; Smiles v. Belford (1876) 1 O. A. R. 436; 23 Grant 590; 1 Cart. 576; Routledge v. Low, (1868) L. R. 3 E. & I. App. 113; 37 L. J. Chy. 454; Craw v. Ramsay, Vaugh. 292.

not even its own,2 can tie its hands; no court within the Empire can pronounce its Acts ultra vires. Prima facie, indeed, its enactments are for the United Kingdom only, but as a mere question of power it may legislate for the colonies either generally or in particular to whatever extent it may think proper. It may even extend its legislation to foreigners and foreign property beyond the bounds of the Empire and to acts committed abroad.®

The British parliament has often affirmed its legislative supremacy over the colonies, both by direct declaration' and by statutes making void repugnant colonial legislation. Apart from legislative affirmance, however, the principle is now thoroughly established in the constitutional law of the Empire.

How far the Imperial parliament should pass laws framed to operate directly in the colonies is a question of

'Auchterarder Case, Mac. & R. (H. L.) 238; Algoma Central Ry. Co. v. Reg., ubi supra.

Cooke v. Chas. A. Vogeler Co., (1901) A. C. 102; 70 L. J. K. B. 181; 69 L. J. Q. B. 375; Colquhoun v. Brooks, (1888) L. R. 21 Q. B. D. 65; 57 L. J. Q. B. 439; Niboyet v. Niboyet, (1878) L. R. 4 P. D. 20; 48 L. J. P. 1; Reg. v. Keyn, (1876) L. R. 2 Ex. D. 152; 46 L. J. M. C. 17; Reg. v. Anderson, (1868) L. R. 1 C. C. R. 167; 38 L. J. M. C. 12.

Reg. v. Jameson, (1896) 2 Q. B. 425; 65 L. J. M. C. 218; Ex. p. Pearson (1892) 2 Q. B. 263; 61 L. J. Q. B. 585; Colquhoun v. Brooks, ubi supra; Ex p. Blain (1879) L. R. 10 Chy. D. 522; Routledge v. Low, (1868) ubi supra; Brook v. Brook, (1860) 9 H. L. Cas. 193; Penley v. Beacon Ass'ce Co. (1864) 10 Grant. 428; Cope v. Doherty, (1858) 2 DeG. & J. 614; 27 L. J. Chy. 600; Jeffrey v. Boosey, (1855) 5 H. L. Cas. 815; 24 L. J. Ex. 81; Arnold v. Arnold, (1837) 2 My. & Cr. 256; 6 L. J. Chy. 218.

5 Cases noted ante, p. 25.

Extra-territorial imperial legislation must be discussed later in connection with the question as to the powers of colonial legislatures in this regard. See post, Chap. IV., p. 62, et seq.

E.g. 6 Geo. III., c. 11, 12; and see May "Const. Hist. of Eng. land," 7th ed., vol. iii., p. 349.

7 & 8 Wm. III. c. 22; 6 Geo. IV. c. 114; 28-29 Vic. c. 63 (the Colonial Laws Validity Act, 1865; see Appendix B.). The only serious question raised has been as to the power of the British parliament to tax the internal trade of the colonies. By the celebrated Renunciation Act (18 Geo. III. c. 12), the Imperial parliament declared that it would not again attempt to do so. See note ante, p. 11.

policy more or less delicate according to circumstances. No doubt has been suggested that if such laws are passed they must be held valid in colonial courts of law." "

It necessarily follows that any colonial legislation inconsistent with an Imperial statute extending to the colony must be inoperative. In the old colonial charters 10 and the earlier Constitution Acts for some of the colonies1 the legislative power conferred was hedged about with some such proviso as that no law passed by the colonial assembly should be repugnant to the law of England, and the earlier "repugnancy" Acts declared void "to all intents and purposes whatsoever" colonial legislation repugnant to Imperial statutes extending to the colonies. These very general and sweeping expressions would, if applied literally, confine colonial legislative power within very narrow limits, and repugnancy in one portion even would render a whole Act void. To remove these difficulties the Colonial Laws Validity Act, 1865,5 enacts:

4

"II. Any colonial law, which is or shall be repugnant to the provisions of any Act of parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, order, or regulation,

9

Per Lord Hobhouse in Callender v. Col. Sec'y Lagos (1891) A. C. 460; 60 L. J. P. C. 33.

10 See ante, p. 8; also Egerton's

Policy," pp. 17, 27, etc.

"Short Hist. of Brit. Col.

E.g., 5 & 6 Vic. c. 76, s. 29 (New South Wales). Compare the Constitutional Act (Canada) of 1791, 31 Geo. III., c. 31, and the Union Act (Canada) of 1840, 3 & 4 Vic. c. 35.

2 See Becquet v. McCarthy, 2 B. & Ad. 951; and Phillips v. Eyre, (1870) L. R. 6 Q. B. 20; 40 L. J. Q. B. 28, in both of which cases colonial legislation was attacked on the ground of repugnancy to "natural justice." The same limitation has been suggested as applying even to Imperial legislation; 12 Rep. 76. See Dicey. Law of the Const.," p. 59, note 1.

37 & 8 Wm. III. c. 22; 6 Geo. IV. c. 114.

4 Reg. v. Marais, (1902) A. C. 51; 71 L. J. P. C. 32; and see the argument of defendant's counsel in Phillips v. Eyre (ubi supra). 528 & 29 Vic. c. 63 (Imp.). See Appendix B.

and shall, to the extent of such repugnancy, but not otherwise,. be and remain absolutely void and inoperative.

"III. No colonial law shall be, or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England unless the same shall be repugnant to the provisions of some such Act of parliament, order, or regulation, as aforesaid."

These sections are retrospective and their effect is: (1) The repugnancy to the law of England which is to make void a colonial Act must be repugnancy to an Imperial statute extending to the colony, and (2) a colonial Act repugnant in part only is to be void "to the extent of such repugnancy and not otherwise." A colonial legislature, therefore, may legislate upon the subject matters of Imperial statutes which extend to the colony so long as the colonial Acts are not inconsistent with the Imperial."

8

The Colonial Laws Validity Act also lays down the rule of interpretation now to be applied in determining whether or not any given Imperial Act extends by its own inherent force to a colony. It must be "made applicable to such colony by the express words or necessary intendment" of the Act itself or of some other Imperial Act. These words, however, would seem to be declaratory merely. The authorities before the Act lay down the same rule as do those since the Act.

It is beyond the scope of this work to enumerate the various Imperial Acts which extend to Canada. A brief review of the authorities upon some leading topics-copyright, bankruptcy, companies' Acts, and marriage-will suffice to indicate the leading principles of interpretation which have guided the courts of last resort in their decisions upon this subject.

Phillips v. Eyre (1870) L. R. 6 Q. B. 20; 40 L. J. Q. B. 28; Reg. v. Marais, (1902) A. C. 51; 71 L. J. P. C. 32.

7

Atty.-Gen. v. Flint, (1884) 16 S. C. R. 707; 4 Cart. 288. Per Fournier, J.: Allen v. Hanson, (1890) 18 S. C. R. 667; 4 Cart. 470; The Farewell, 7 Q. L. R. 380; 2 Cart. 378; Smiles v. Belford, 1 O. A. R. 436; 1 Cart. 576.

8 In s. 1; see Appendix B.

Imperial Copyright Legislation.

To what extent the Imperial Copyright Act of 18429 was operative in Canada was considered by the House of Lords in 1868.10 The precise case, as stated by the Lord Chancellor (Lord Cairns), was whether an alien friend publishing a work in England during the time of his or her temporary sojourn in a British colony was entitled to the protection given by the Act. The facts were that an American authoress had crossed into Canada and her book was published in London during her few days' stay in Montreal. Three questions were considered: First, where must the publication take place? Secondly, what is the area over which the protection of the Act extends? Thirdly, who is entitled to that protection? Although the Act expressly provides 1 that it shall extend to "every part of the British Dominions," it was held to protect those works only which were published in the United Kingdom for reasons thus summed up by Lord Westbury: "This results from various provisions and conditions contained in the Act which could not possibly be complied with if the first publication was to take place in distant parts of the British Empire." As to the area over which the protection afforded by the Act was to extend, the language of the statute 2 was express that the copyright when created should extend to every part of the British dominions. The third question as to what authors could procure the protection of the Act involved a four-fold inquiry: To whom is this protection given-to a .native born subject of the Crown wherever resident? to an alien friend sojourning in the United Kingdom? to an alien friend sojourning in a British colony? to an alien friend resident wholly abroad? It was unanimously held that an alien friend sojourning in any part of the Empire at the date of publication was entitled to the protection of the Act. It was not necessary to decide whether that protection extended to a British subject wherever resident and there was apparently some difference of opinion

10

5 & 6 Vic. c. 45.

Routledge v. Low, L. R. 3 E. & I. App. 113; 37 L. J. Chy. 454. 1 Section 29.

2 Sections 15 and 29.