« AnteriorContinuar »
that the legislature of the colony did mean to give to themselves so wile a jurisdiction. The more reasonable theory to adopt is, that the language was used subject to the well-known and wellconsidered limitation, that they were only legislating for those who were actually within their jurisdiction, and within the limits of the colony."
It will be noticed, perhaps, that the report of this case does not disclose whether or not the appellant was British subject, or whether he was, or was not, a resident of the colony. His first marriage took place in New South Wales, and it would appear that in the United States, where the second marriage was celebrated, he had in some way procured a divorce from his first wife. As to his nationality, the name is perhaps suggestive. It may therefore be thought that there is still room for argument as to the power of a colonial legislature to affix criminal character to acts done abroad by a British subject, whose domicile is in the colony, but there is nothing in the judgment of the Committee to support such a view.
In this connection it may be remarked that in regard to Imperial Acts, the question is one of construction inerely; with us, it is a question of jurisdiction, or of construction to save jurisdiction. If the jurisdiction be wanting, the legislation is void—is not law—and would have to be judicially so held (ir). Such an Act would be unconstitutional, in the proper sense of that term--i.e., contrary to our constitution—and the very same doctrine which lays down, that it is the right and duty of a Canadian judge to declare void an Act of a provincial legislative assembly, trenching upon ground sacred to the parliament of Canada, lays down with equal force, that it is also his right and duty to declare void—as ultra viresany Act, provincial or Dominion, which in its territorial scope exceeds the power of a colonial legislature (y).
(3) See Reg. v. Brierly, 14 O. R. 525.
(y) See the judgment of Marshall, C.J., in Marbury v. Madison, 1 Cranch, 137 ; Political Science Lectures, 1889, University of Michigan, p. 77, et seq.; re Goodhue, 19 Grant, at p. 452.
All the limitations upon our legislative power (always considered as to its sum total) have now probably been adverted to, and we may again refer to the position formerly taken (2), and may summarize by saying: Within the limits laid down, expressly or impliedly, by our charter -the B. X. A. Act—and subject always to Imperial control as before indicated (a), the powers of legislation possessed by the various legislative bodies existing in Canada, are plenary powers, and that, “ jurisdiction conceded, the will of the legislature is omnipotent according to British theory, and knows no superior”(b). Paraphrasing the language of Chief Justice Marshall in a very celebrated case which came before the Supreme Court of the United States (C), we a Imit, as all must admit, that the powers of a colonial government are limited, and that its limits are not to be transcen:led; but the sound construction of the B. N. A. Act, must allow to the legislatures, that discretion with respect to the means by which these powers, conferred by it, are to be carried into execution, which will enable those bodies to perform the high duties assigned to them in the manner deemed most beneficial to the people. Let the end be legitimate, let it be within the scope of the constitution, and all means which are not prohibited but consistent with the letter and spirit of the constitution, are legal. Where the law is not prohibited, to undertake to enquire into the (z) Ante, p. 177.
(1) Antr, Chap. VII. (1) Per Mowat, A G., arguendo, Reg. v. Severn, 2 S. C. R. at p. 81. The theory is not exclusively British, for, jurisdiction conceded, the same rule applies to Acts of Congress and of the State Legislatures in the adjoining Republic.
(0) McCulloch v. Maryland, 4 Wheat, 421. Note that Congress is given certain “enumerated powers
and also power
" to make all laws which shall be necessary and proper for carrying into execution those powers, etc. The B. N. A. Act gives to each legislature power to make laws “ in relation to " the various matters as distributed between the various legislative bodies. If there is a:ay distinction, ours is the wider phrase, and the principle of the decisions of the U. S. Supreme Court on this subject of “ implied powers" is applicable a fortiori to the powers of our legislatures.
-legree of its necessity, would be to pass the line which circumscribes the judicial department, and to tread on legislative ground.
In courts of justice in England and other British colonies, our law (statutory and common) is entitled to at least as full recognition and effect as the laws of any foreign nation
-in accordance with the principles of comity («l). On appeals to Her Majesty in Her Privy Council, judicial recognition is, of course, accorded them (e); in other cases, they must be proved as fact, but it should be observed that in regard to the proof of our law, as embodied in legislative enactment, the 6th section (f) of the Colonial Laws Validity Act, 1865, provides for a simple method of proof, viz., a copy of the Act, certified as such by the proper officer of the legislature whose enactment it is.
In a late case (9) before the Judicial Committee of the Privy Council, it was very broadly laid down by Sir R. Phillimore, in delivering the judgment of the Committee, that the law contained in an Act of the legislature of a colony, and ratified by the express sanction of her Majesty, is, in every case to which it is applicable, of binding authority, equally in the Queen's High Courts in England, and in Vice-Admiralty Courts in the colonies. We are safe therefore in saying that in an action in an English court, or the court of another colony, the law of Canada, statutory or common law, wouldl, on proof in the manner before indicated, be given effect to, either on the doctrine of comity, or on the stronger doctrine enunciated in Redpath V. Allen.
(d) Phillips v. Eyre, L. R. 4 Q. B. at p. 241 ; Reg. v. Brierly, 14 O. R. at p. 534.
(e) Cameron v. Kyte, 3 Knapp, P. C. at p. 345.
(1) 28 & 29 Vic. c. 63 (Imp.). Is this section in force in the colonies ? or does it merely affect the method of proof in the English courts ?
(11) Redpath v. Allen, L. R. 4 P. C. 511.