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Prop. 12 the above point, while Burton and Patterson, JJ., are also mentioned as having concurred.

Case of "The Royal."

repeal by

Act of part

Merchant

In the case of "The Royal," moreover, in the Vice-Admiralty Court, Quebec, it was held that section 189 of the Imperial Merchant Shipping Act, 1854, (17-18 Vict., c. 104), which provides that no suit for wages under £50 shall be brought by any seaman in any Court of Vice-Admiralty, unless in certain cases mentioned, had been repealed pro tanto, Supposed by section 56 of the Dominion Seamen's Act, 1873, Dominion (36-37 Vict., c. 104, D.), which placed the limit at of Imperial $200 in the case of any seaman belonging to any Shipping ship registered in the provinces of Quebec, Nova Scotia, New Brunswick, and British Columbia, and this although section 109 of the Imperial Act enacts that that part of the Act which includes section 189 shall apply to all ships registered in any part of Her Majesty's Dominions abroad.2 Holmes. And in Holmes v. Temple, Chauveau, J., in Sessions of the Peace, Quebec, also appears to have interpreted the word "exclusive," in section. 91 of the British North America Act, as meaning exclusive not only of the provincial legislatures, but of the Imperial parliament itself.

Act, 1854.

Temple.

3

19 Q.L.R. 148, (1883). See especially at p. 151.

66

2It may be added that section 5 of the Dominion Seamen's Act, 1873, expressly provides that so much of the provisions of the Imperial Merchant Shipping Act, 1854, and of any Act of the parliament of the United Kingdom amending the same, relating to ships registered in the above four provinces of the Dominion, as is inconsistent with this Act, shall be repealed." This Dominion Act was reserved for Her Majesty's pleasure on May 23rd, 1873, and was assented to on November 20th, 1873. Note, however, that the intended repeal was of the provisions of Imperial Acts passed prior to Confederation. see infra pp. 223-30. See, also, infra p. 230, n. I.

38 Q. L. R. 351, 2 Cart. 396, (1882).

And

Belford

such a view.

However, the Ontario case of Smiles v. Belford1 Prop. 12 is directly opposed to such a view, and the words. of Draper, C.J., in Regina v. Taylor are there ex- Smiles v. pressly commented on. Smiles v. Belford was an opposed to application for an injunction on behalf of the holder of an English copyright under the Imperial Act, 5-6 Vict., c. 45, to restrain the defendants from publishing a reprint of the plaintiff's work in Canada. Section 15 of the Imperial Act above referred to prohibited Her Majesty's colonial subjects from printing or publishing in the colonies without the consent of the proprietor of the copyright any work Copyright. in which there was copyright in the United Kingdom. By section 29 the Act was extended to every part. of the British Dominions. But the point was raised in this case, or at all events suggested,3 though, as it would appear, afterwards abandoned by counsel on the argument before the Court of Appeal, that the Imperial parliament by No. 23 of section. 91 of the British North America Act, had divested. itself of all power respecting British copyright in Canada, and that the Canada Copyright Act, 1875, 38-39 Vict., c. 53, had superseded the Imperial Copyright Act above mentioned, and required all authors desirous of obtaining copyright in Canada to print and publish and register under the Act, which the plaintiffs had not done. But Proudfoot, V.C., repudi- Per Proudated such a view, and granted the injunction asked for. He says":-" There is nothing indicating any intention of the Imperial parliament to abdicate its

123 Gr. 590, I O.A.R. 436, 1 Cart. 576, (1876).

236 U.C.R. 183.

31 O.A.R. at pp. 446-7, 1 Cart. at pp. 582-3.

41 O.A.R. at p. 444, I Cart. at pp. 579-80.

523 Gr. at p. 602, 1 Cart. at p. 589.

foot, V.C.

Imperial parliament has not abdicated its powers of legislating

on such

subjects as copyright.

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Prop. 12 power of legislating on matters of this kind. The parliament of Canada is authorized to make laws, 'for the peace, order,1 and good government of Canada.' The 14 Geo. III., c. 83, s. 12, enabled the Council to be appointed under that Act, 'to make ordinances for the peace, welfare, and good government of the province of Quebec,' and the 31 Geo. III., c. 31, created a legislative assembly in Upper Canada and in Lower Canada with power to make laws for the peace, welfare, and good government thereof.' And the 3-4 Vict., c. 35, s. 3, which united the provinces, gave to the legislative council and assembly of Canada power in similar terms to make laws for the 'peace, welfare, and good government' of Canada. Under these earlier Acts it was never contended,at all events it is not now contended,-that the provincial legislature could make laws at variance with those which the Imperial parliament might choose to pass, and declare to have effect throughout the British dominions; and the language of the 91st section of the last Act has no more ample phrases to indicate larger powers. The legislature of Canada since the British North America Act recognizes the previous Imperial legislation on the subject of copyright as still in force in Canada," citing 31 Vict., c. 7, Sch. C., and 31 Vict., c. 56. On appeal to the Ontario Court of Appeal this decision was affirmed. Bur

1The significance of the word "order" here, which, it will be ob served, does not occur in the other Acts referred to, is worthy of special notice. It places in the hands of the Federal power of the Dominion the right and responsibility of maintaining public order throughout the whole country. The want of a similar provision in the constitution of the United States has been described as "the capital defect of the American constitution," "where the preservation of law and order is not primarily and directly the affair of the government of the United States": The Spectator, for July 14th, 1894. The difficulties and dangers resulting therefrom were illustrated by the great railway strike disturbances in Chicago in the summer of 1894. See, also, 14 C.L.T. at pp. 86, 219.

3

J.A.

view of

ton, J.A., said1 he entirely concurred in the view of Prop. 12 Proudfoot, V.C., and referred to Routledge v. Low," in which it had been unsuccessfully contended that Per Burton, inasmuch as Canada had a legislature of her own and was not directly governed by legislation from England, she was not included in the general words of section 29 of the Imperial Act, 5-6 Vict., c. 45, whereby that Act was extended to every part of the British dominions. And as to the words of Draper, C.J., in Regina v. Taylor, he observes that they Criticises were wholly unnecessary to the decision of that case, Draper, C.J. and were not concurred in by other members of the Court, and that what the British North America Act "intended to effect was to place the right of dealing with colonial copyright within the Dominion under the exclusive control of the parliament of Canada, as distinguished from the provincial legislatures, in the same way as it has transferred the power to deal with banking, bankruptcy and insolvency, and other specified subjects, from the local legislatures, and placed them under the exclusive jurisdiction and control of the Dominion. I entirely concur with the learned Vice-Chancellor in the opinion he has expressed, that under that Act no greater powers were conferred upon the parliament of the Dominion to deal with this subject than had been previously enjoyed by the local legislatures."5

So, likewise, Moss, J. A., says ":" It must be taken to be beyond all doubt that our legislature had

11 O.A.R. at p. 443, 1 Cart. at p. 578, (1877).

2L. R. 3 H.L. 100, (1868).

3 Supra p. 211.

41 O.A. R. at p. 442, I Cart. at p. 578.

5 As to the interpretation of No. 23 of section 91 of the British North America Act, see further infra pp. 223-4, n. 2; and p. 231, n. I. 61 O.A.R. at p. 447-8, I Cart. at p. 583-4.

So, also, per Moss, J.A.

Prop. 12 no authority to pass any laws opposed to statutes which the Imperial parliament had made applicable to the whole Empire. . . The Canadian Copyright Act of 1875, if adopted by the two branches of the legislature and assented to by the Crown in the usual manner, would have been wholly powerless to abridge his," (sc., the plaintiff's), "existing right. He would still have been entitled by virtue of his British copyright to restrain any Canadian reprint." And as to Draper, C.J.'s, dicta, he says1:-"I believe that his lordship did not deliberately entertain the opinion which these expressions have been taken to intend. He simply threw out a suggestion in that direction, but further consideration led him to adopt the view that the Act did not curtail the paramount authority of the Imperial parliament, but merely conferred exclusive jurisdiction upon the Dominion parliament as between itself and the provincial legislatures."

So, also,

per Gray, J.

Maguire.

2

So, again, in the British Columbia case of Tai Sing v. Maguire, Gray, J., after remarking that it is difficult to see the foundation for the conclusion at which Draper, C.J., arrived in Regina v. Taylor, continues:-"The British North America Act, 1867, was framed, not as altering or defining Tai Sing v. the changed or relative positions of the provinces towards the Imperial government, but solely as between themselves. It was a written compact by which, for the future, their mutual relations were to be governed. In consideration of the concessions of the provinces to the general government, and for the purpose of enabling the latter to carry out the responsibilities assumed on behalf of the former,

11 O.A. R. at pp. 447-8, 1 Cart. at pp. 583-4.

21 B.C. (Irving) at p. 107, (1878).

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