7

been acted upon without question, as also the Act of Henry VIII. against the buying of pretended titles.

8

Upon a review of the Nova Scotia decisions, it appears that the admission of Imperial statutes has been the exception; those which have been held to be in force being, in the main, statutes in amelioration of the rigors of the common law, Acts in curtailment of prerogative, or in enlargement of the liberty of the subject. To a greater extent than has been the case in either New Brunswick or Ontario, the judges of Nova Scotia have deemed it the office of legislation rather than of judicial decision to bring into operation within the province the provisions of Imperial statutes not originally capable of being made operative, but which might be thought suitable to the changed circumstances of the colony. And in the same spirit it was laid down that where an English Act is held to be in force the courts "will not give it a further extension than it received in the land of its origin." The operation of an English statute might be confined within narrower bounds by the circumstances and situation of the colony; but it could never become a statute of greater effect or more enlarged construction. "This is the office of legislation alone."

IN NEW BRUNSWICK an early case,10 in which the Supreme Court of that province had to consider whether the Statute of Uses and its companion-the Statute of Enrolment—were or were not in force in the province, has had a very large controlling influence. Chipman, C.J., quotes with approval the language of Sir W. Grant,1 and takes as his guide the principle enunciated in that case. As to the Statute of Uses no doubt whatever was expressed; the fact that it had been generally, if not universally, considered to be in force in the old American colonies was treated as indicative of the general understanding that the statute was carried by emi

Tarratt v. Sawyer, 1 Thomp. 46 (2nd ed.); Moore v. Moore,

1 R. & G. 525; and Graham v. Bell, 5 R. & G. 90.

* Wheelock v. Morrison, 1 N. S. D. 337; Scott v. Henderson, 2 Thomp. 115.

9

Freeman v. Morton, 2 Thomp. 352, per Bliss, J.

10 Doe dem. Hanington v. McFadden, Berton, 153.

1 Atty.-Gen. v. Stewart, 2 Mer. 143; see ante, p. 40.

grating colonists as part of the law of England relating to real property. As to the Statute of Enrolment more hesitation seems to have been expressed; but all the judges concurred in treating the two statutes as practically one. Although the Statute of Enrolment might be somewhat difficult of application in New Brunswick, it seems to have been considered that the machinery of the provincial courts could be utilized in this respect. The extension to the province of statutes which are in terms confined to the courts of the mother country is not by any means without precedent. Several of such statutes, regulative of the practice in "Her Majesty's Courts at Westminster," have always been treated as operative within the province in relation to the superior courts there.2

Although it is difficult to classify the New Brunswick authorities upon this question, in every case the judges of the courts there have exercised their best judgment as to the applicability of the Imperial statute to the circumstances of the colony. If any distinction in principle can be drawn between the decisions in New Brunswick and those in Nova Scotia, it would appear to be this: that Imperial statutes have been denied operative force in Nova Scotia unless clearly applicable, while in New Brunswick the tendency, at least of earlier authorities, seems to have been not to reject them unless clearly inapplicable. At the same time it must be confessed that this distinction cannot be clearly pointed out in every case.

24 Anne, c. 16 (assignment of bail-bonds); 14 Geo. II. c. 17 (judgment of nonsuit): and see Kelly v. Jones, 2 Allen, 473 (43 Eliz. c. 6-certificate as to costs), and Gilbert v. Sayre, ib. 512 (13 Car. II. c. 2-double costs on affirmance in error). See Hesketh v. Ward, 17 U. C. C. P. 667.

3 Compare the "English Law" Acts of Manitoba and the N. W. T. with the British Columbia Act. See post, pp. 53, 54, 56.

4

For other New Brunswick cases, see Ex parte Ritchie, 2 Kerr. 75, and Ex parte Bustin, 2 Allen, 211, in which the English statutes as to certiorari were held not in force: Wilson v. Jones, 1 Allen, 658, in which I Rich. II. c. 12, giving a creditor an action of debt against a sheriff on an escape, was (following an early unreported decision) held not in force, although it was acted upon in Nova Scotia and the older American colonies; and see James v. McLean, 3 Allen, 164, and Doe d. Allen v. Murray, 2 Kerr. 359.

ONTARIO falls within the class of colonies into whose legal system English law has been introduced by the will of the colony itself, as expressed in legislative enactment.

In 1774, the parliament of Great Britain, by giving to the inhabitants of Canada, then almost exclusively French, the law in accordance with which they had been accustomed to regulate their daily lives, secured their cordial adherence. to British connection despite the enticing words of Washington and his French allies. In like manner, in 1791, they established the new immigration in content in the upper province by giving them an assembly of their own with the power to adopt such system of laws as they might deem best calculated to secure and advance their own material and religious welfare. In the very first parliament of Upper Canada, by the first Act of its first session," that was done which no doubt was anticipated and intended as a consequence of erecting Upper Canada into a separate province.' It was enacted that " from and after the passing of this Act, in all matters of controversy relative to property and civil rights, resort should be had to the laws of England as the rule for the decision of the same."

The criminal law of England had been in force in the old province, and no legislation was deemed necessary by the legislature of Upper Canada beyond naming a day, in reference to which the English criminal law was to be considered fixed. This date was fixed by 40 Geo. III. c. 1 (U. C.), which enacted: "The criminal law of England, as it stood on the 17th day of September, 1792, shall be, and the same is hereby declared to be, the criminal law of this province," subject to any variations therein effected by ordinances of the old province of Quebec passed after the Quebec Act of 1774. Owing to the difference in the phraseology of the two Acts of 32 and 40 Geo. III. a marked difference in effect has been attributed to these two enactments.

p. 108.

See Confed. Deb., p. 606, and the author's "History of Canada,"

32 Geo. III. c. 1 (U.C.).

'Per Robinson, C.J., in Doe d. Anderson v. Todd, 2 U. C. Q. B. 82

In the province of Ontario, therefore, the whole question. turns upon the effect which should be given to these, our own enactments. So far as concerns the law relative to property and civil rights, it will be found that, owing to the construction placed upon the English Law Act of 17928 by the courts of Upper Canada, the same method of enquiry has been followed in that province (now Ontario) as in the Maritime Provinces.

1

9

Throughout the law reports of Upper Canada (Ontario) numerous cases will be found in which laws passed by the parliament of England, and in force there in 1792, were without question acted upon as being the law of Upper Canada. In the very first volume of reported cases, by Taylor, several of such instances appear, and so on through the reports to the present time. For instance, no question seems to have ever been raised as to the Statute of Uses,10 the Statute of Frauds, the Acts of Elizabeth's time as to fraudulent and voluntary conveyances,2 and a casual glance at our Digests will reveal many others as to which no doubt has ever found a reporter. As being in affirmance of the common law, or in amendment of some defect in that law working general detriment, their position as practically part and parcel of general English law was too fully recognized to be questioned. A statute of Elizabeth making void, in the interest of the guilds, articles of apprenticeship for a less term than seven years was the first statute upon which argument seems to have been had, and in three early cases3 it received consideration. In two of these it was held not part of the law of Upper Canada. "That Act was obsolete in England even before the statute which repealed it. We consider the statute as a local Act, which was probably adapted to the state of society in England three hundred years ago, but is not now, and never

932 Geo. III. c. 1 (U.C.).

3

9

Taylor, 546.

10 27 Hen. VIII. c. 10.

129 Car. II. c. 3.

* 12 Eliz. c. 5; 27 Eliz. c. 4.

Fish v. Doyle, (1831) Drap. 328: Dillingham v. Wilson, (1841)

6 U. C. Q. B. (O.S.) 85; Shea v. Choat, (1845) 2 U. C. Q. B. 211.

was, adapted to the population of a colony, and was never in force here."4

In the third case it was broadly contended that the question of applicability was not open under the Upper Canadian statute; that all English statute law of 1792 had been introduced by it except the poor and bankruptcy laws. The court, however, held that a recognition must be accorded to the differences of environment, and that the courts of Upper Canada. should consider the question of the adaptability of any English Act" to the nature of our institutions." To some extent this view of the effect of 32 Geo. III. c. 1 has not met with entire approval by individual judges in subsequent cases; but the decided tendency of the authorities has been to support the principle just laid down.

The English statute 9 Geo. II. c. 36-commonly classed as one of the Mortmain Acts has been under review in a number of decided cases; and in the argument of counsel and the opinions of the judges will be found all the considerations which can be urged in support of the two different views.

In the result the statute was decided to be in force in Upper Canada, but only on the ground of its implied recognition by our colonial legislature; the view of a decided majority being that it was not introduced by the sole force of 32 Geo. III. c. 1. The courts of Upper Canada (Ontario) have practically adopted the view of Robinson, C.J., that the terms of the Act of 1792 (U.C.), " do not place the introduction of the English law on a footing materially different from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force, on the principles of

Per Sherwood, J., in Dillingham v. Wilson.

5 Shea v. Choat. The head-note is misleading. In speaking of 20 Geo. II. c. 19, Robinson, C.J., says: "My inclination at present is that that statute in its present scope and bearing is not applicable to this province;" but he decided that, even if in force, the pleading could not be supported, not showing a case within the statute.

Expressly excepted by s. 6.

"The latest is Whitby v. Lipscombe, 23 Grant 1, in which all the earlier cases are reviewed. See also Smith v. Meth. Church, 16

O. R. 199; Butland v. Gillespie, ib., 486.

CAN. CON-4