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Ferguson v. Gibson (c) follows the above authorities without discussing whether the Act is in force or not.”
The whole matter came finally before the Court of Appeal for Ontario in the case of Whitby v. Liscombe (d). The opinions delivered by the eminent judges who decided the case show the same marked difference of opinion as was apparent in the early case-a decided difference in principle -although the judgment of the court was unanimous that the statute is in force in Ontario, because all agreed in holding that the legislative recognition of its binding force here (particularly since 1845) was sufficient to incorporate it amongst the laws of Ontario (c).
Chief Justice Draper expresses a clear opinion that the provincial statute 32 Geo. III. c. 1, was sufficient, per se, to introduce the Mortmain Acts, and from his language it might even be argued that he considered the question of applicability not open: The question before us is whether our legislature have not made it part of our laws; and but for the case of Attorney-General v. Stewart, I should never have entertained a doubt on this point.” And again, referring to the English laws as to the poor and to bankruptcy, and another statute subsequently excluded, he says: “The reason given, that the provisions of those Acts were inapplicable to this province, is virtually one of the reasons for Sir W. Grant's judgment in the Attorney-General v. Stewart; but our legislature evidently did not doubt that their first Act had introduced both these British statutes into Upper Canada.” On the other hand, Mr. Justice-afterwards Chief JusticeMoss, agreed fully with the view expressed by Robinson, C.J., in the early case, that by the effect of our provincial Act 32 Geo. III. c. 1, per se, the Act in question was not in force. Reviewing that case, he said:
(C) 22 Grant, 36. (d) 23 Grant 1.
(e) Only on this ground is Reg. v. Gamble and Boulton, 9 U.C. Q. B. 516, supportable. See notes to B. N. A. Act, ss. 18 and 69 post.
“The question of principal interest in this case is whether the statute commonly called the Mortmain Act is in force in this province. More than thirty years ago the Court of Queen's Bench, upon full consideration, held that it was in force. Since that time, in express deference to that authority, the Courts of Common Law and the Court of Chancery have decided many cases, and many devises and bequests to charitable uses, otherwise unimpeachable, have been adjudged invalid. The point is now for the first time raised in a Court of Appeal. So many estates have been administered and so many titles have been acquired upon the assumption of the correctness of a decision which had been followed so often by courts of co-ordinate jurisdiction, and remained so long unchallenged on appeal, that its reversal would be attended with serious consequences.
Under such circumstances, it would deserve consideration whether the case was not a fitting one for the application of the rule—stare derisis. If the only question was whether Doe Anderson v. Todd was well decided, I should hesitate long before holding in the affirmative. The points then presented for determination were, whether the provincial statute 32 Geo. III. c. 1, should have been judicially interpreted to have the effect of introducing the Mortmain Act, and, if not, whether subsequent legislation had effected a change in the law. Robinson, C.J., was of opinion that but for subsequent legislative exposition, the true interpretation of the statute of Geo. III, excluded the Mortmain Act, while the other members of the court seemed to have entertained a different view. The reasoning of the Chief Justice appears to me to be unanswerable—at least, if the decision of Sir Wm. Grant, in Attorney-General v. Stewart, is correct, and, apart from its intrinsic force, it would be hopeless to impugn this, after its approval by the House of Lords, in Whicker v. Hume (f). It was attempted in the argument of this appeal to distinguish Doe Anderson v. Todd, and withdraw it from the application of the principles enunciated in the two English cases. I do not think the attempt was attended with success. It proceeded upon the differences in the terms employed in introducing the laws of England into this province, and into Grenada and New South Wales respectively. Our statute enacted that
() 16 Jur, 39.
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.' In Grenada, justice was to be administered, as near as might be, according to the laws of England. In New South Wales, the laws in force in England,
so far as they can be applied within the said colonies,' were introduced. Sir Wm. Grant held that the question of whether the statute was in force in Grenada depended upon this consid eration-whether it be a law of local policy, adapted solely to the country in which it was made, or a general regulation of property, equally applicable to any country in which it is by the rules of English law that property is governed ;' and, having discussed the scope of the statute, he decided it to be local in its character, and not a general regulation of property. In Whicker v. Hume, Lord Cranworth emphatically says: With regard to this statute of Mortmain, ordinarily so called, I cannot have the least doubt that that cannot be regarded as applicable to the colonies.' This being the construction placed npon the statute by such high authorities, the respondents were forced to the broad construction, that all the laws of England relative to property and civil rights, whatever might be their historical origin, or however political their character, or however clearly they grew out of local circumstances, or were meant to have a local operation, were introduced. The observations of the Chief Justice, in Doe Anderson v. Todd, seem to me to effectually dispose of this proposition. As he points out, the language of the statute does not expressly introduce the whole civil law of England, but seems to be limited to the purpose of giving the principles of the English law as the rule of decision for settling questions, as they might arise, relative to property and civil rights. If this be the correct view, I cannot perceive that any substantial distinction can be founded upon the differences of language to which I have referred.”
He, however, doubted the propriety of the decision in that Case, as founded on too slight a legislative recognition of the Imperial Act as being in force here, and concluded his opinion by saying: “It is upon the ground of this subsequent legislative recognition that I wish to place my
judgment, that the statute must now be held to be in force in this province” (9).
Stırk v. Ford (1) is the rather amusing record of an unsuccessful attempt to subject a Canadian judge to the penalties provided in the Act“ for abolishing the Court of Star Chamber," 16 Car. I. c. 10. Upon examination of the statute, Robinson, C.J., points out that its whole scope was to forever put a stop to the unconstitutional usurpation of judicial functions by the Court of Star Chamber, and ridiculed the idea of extending it to a judge alleged to have acted illegally in the exercise of his assigned duties.
At the date of the passing of the Provincial Act, :32 G III. c. 1. the law of marriage_both as to the forms to be observed, and as to the disabilities which would prevent its solemnization in certain cases-in force in Great Britain, was regulated by the statute commonly known as Lord Hardwicke's Act, 26 Geo. II. c. 33. Since 1792, many provincial statutes have made provisions on many, if not most, of the matters legislated upon by Lord Hardwicke’s Act (i); but, as late as 1887, the latter statute has been expressly recognized as introduced-as a whole-hy our tirst provincial Act. The reasons given for so considering it in force, constitute the material matter for us in this enquiry, and by way of contrast we may note the reasons given for holding—as has in 1889 been finally held—that section 11 of the Act was never introduced into our law.
“That section rendered such marriage by license"-.l., of a minor without consent of parent or guardian-"absolutely void, without any sentence of the court; and length of cohabita
(9) See Smith v. Methodist Church, 16 0. R. 199; Butland v. Gillespie, ib. 486.
(h) 11 U. C. Q. B. 363. (i) The whole matter has never been taken up by our legislatures because of the differences in religious view on the question in Upper and Lower Canada respectively ; and note the division of the subject between the Dominion and the provinces under the B. N. A. Act, s. 91, s.s. 26, and s 92, s.s, 12.
tion and birth of children afforded no ground of exemption (j); and consent subsequently given would not avail to validate. This rigorous law was soon after repealed in England, and no judge has regarded with faror the proposal to hold it applicable to this country. Judicial opinion as reported is all the other way." -- Per Boyu, C., in Lawless v. Chamberlain (k). Whether the 11th section of the Act containing that provision was ever part of the law of this province, by virtue of our adoption of the law of England, may fairly be questioned. If it erer was, it must be so still, as we have already mentioned, because the English statute repealing it is of too modern a date to be binding upon us by virtue of our statute 32 Geo. III. c. 1, and it has no relation to the colonies; but it would be difficult to satisfy ourselves, we think, that it ever has been in force in Upper Canada, on account of the impossibility of applying the 12th clause to the condition of things here. We could not therefore have the enactment respecting the consent of parents in its integrity, and as it would work great hardship to have the 11th clause in force without the 12th or any other provision as a substitute for it, we shall, perhaps, if we find it necessary in any case to determine the point, find it right to determine that neither of these clauses could be taken to form part of our law of marriage under our own adoption of the law of England by 32 Geo. III. c. 1."- Per Robinson, C.J., in Reg. v. Roblin (1).
The reasons given on the other hand for holding the Act, other than the clauses in question, to be introduced here, will appear in the following passages extracted from the opinions of Robinson, C.J., Esten, V.C., and Armour, C.J., in three cases in which those judges had the question under consideration :
When by our statute 32 Geo. III. c. 1, the provincial legislature adopted the law of England as the rule of decision
they adopted to the extent mentioned, not merely the common law of England, but also the statute law, with the
(j) Johnstone v. Parker, 3 Phill. 41.
(k) 18 O. R. at p. 309. (l) 21 U. C. Q. B. at p. 356. See Reg. v. Secker, 14 U. C. Q. B. 604, and Reg. v. Bell, 15 U. C. Q. B. 287.