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for a legislative body must be held to intend to keep within its powers. No stronger instance of the application of this principle of interpretation could be cited than that afforded by the very recent case which came before the Judicial Committee of the Privy Council, from New South Wales (w). The legislature of that colony had enacted:
“ Whosoever being married, marries another person during the life of the former husband or wife, wheresoever such second marriage takes place, shall be liable to penal servitude for seven years."
The Lord Chancellor (Lord Halsbury), in delivering the judgment of the Committee, says:
In the first place it is necessary to construe the word .whosoever'; and in its proper meaning it comprehends all persons all over the world, natives of whatever country. The next word which is to be construed is · wheresoever.' There is no limit of person according to one construction of “whosoever,' and the word · wherescever,' is equally universal in its application. Therefore, if their Lordships construe the statute as it stands, and upon the bare words, any person married to any other person, who marries. a second time anywhere in the habitable globe, is amenable to the criminal jurisdiction of New South Wales, if he can be caught in that colony. That seems to their Lordslips to be an impossible construction of the statute; the colony can have no such jurisdiction, and their Lordships do not desire to attribute to the colonial legislature an effort to enlarge their jurisdiction to such an extent as would be inconsistent with the powers committed to a colony, and, indeed, inconsistent with the most. familiar principles of international law. It therefore becomes necessary to search for limitations to see what would be the reasonable limitation to apply to words so general ; and their Lordships take it, that the words, whosoever being married,' mean, whosoever being married, and who is amenable, at the time of the offence committed, to the jurisdiction of the colony of New South Wales.' .
Wheresoerer ' may be read, “wheresoever in this colony
. . It appears to their Lordships that the effect of giving the wider interpretation
(10) Macleod v. Atty.-Genl. of N. S. W., A. C. (1891) 455.
to this statute would be
that the statute was ultra rires of the colonial legislature to pass. Their Lordships are far from suggesting that the legislature of the colony did mean to give to themselves so wide a jurisdiction." a neat way of " letting them down easy!” What the colonial legislature did really intend can hardly be matter of doubt, but, in favor of validity, it was held that they could not be even supposed to have intended to go beyond the limits of their legislative competence (x).
The B. N. A. Act, as we all know, is largely founded on the resolutions of the Quebec Conference, and the question naturally arises, how far may these resolutions be looked at in interpreting the B. N. A. Act? Canadian judges have frequently quoted from the resolutions, and have utilized them to aid in the construction of doubtful passages in the Act; but it is worthy of note that the tribunal of last resort-the Judicial Committee of the Privy Council-has never made reference to them in its judgments. In the decision of questions strictly legalsuch as would come before the courts rather than before the legislatures—these resolutions can afford, at all events at this date, very little assistance, and at the most only in the absence of all light from other parts of the statute, or in cases perhaps where these resolutions might clearly support or negative one of two possible interpretations. The fact that the B. N. A. Act must be judicially interpreted as expressing the will of the Imperial parliament, rather than of the federating provinces, tends to make it very doubtful
(r) See, also, Atty. Genl. for Canada v. Atty. Genl. of Ontario. 20 0. R. at pp. 245.6, and 19 (). A. R. at p. 33. Many other canons of construction will be found throughout the cases which have involved consideration of the B. N. A. Act. See notes to the various sections, post. In this place we have endeavored to gather into one chapter the most important of those rules which aid in the determination of the line of division between the Dominion and the Provinces. It should perhaps be noticed here that the Judicial Committee of the Privy Council have not been unmindful of the large political character of the B. N. A. Act. See Atty. Genl. of Ont. v. Mercer, 8 App. Cas. at p. 778.
how far, if at all, it is proper to refer to these resolutions. The fact, too, that they were subjected to revision by the delegates from the various provinces, at London, renders them still more unreliable as legal guides to the interpretation of the B. N. A. Act.
There is another matter which merits mention in this place, the extent, namely, to which we may avail ourselves of the judicial decisions of the American Courts-particularly of the Supreme Court of the United States—upon cases involving inquiry as to the powers of Congress and the State legislatures respectively. They are not, of course, authorities binding upon our courts, but under proper safeguards, are very valuable aids to the study of our Act (y). The real difficulty, the risk even, in utilizing them for purposes of illustration, arises from the difference not only in the principle, but also in the method of division. There are certain matters on which neither the Dominion parliament, nor a provincial legislature can legislate (2); and so, under the American system, there are certain laws which neither Congress nor a State legislature can pass. But there is not the slightest ground for comparison as to the nature and character of the subjects which are withheld from the legislative competency of our legislatures and theirs, respectively. We are debarred from legislating upon certain matters, because those matters are deemed to be of Imperial concern, while, on the contrary, the legislative power of both Congress and the State legislatures is circumscribed in favor of individual liberty (a); and in some of the State constitutions, more lately adopted, the limitations on the legislative power of the State legislature certainly go to very extreme lengths (6). It cannot be said, therefore, in reference to the American system, that
(y) See the remarks of Hagarty, C.J., in Leprohon v. Ottawa, 2 0. A. R. at p. 533.
(z) See Chap. IX. ante. (a) See Art. I. secs. 9 and 10. (1) Bryce's “ American Common vealth,” Appx.
if power over a certain subject matter is not with Congress it must be with the State legislatures, for it may be with neither. The “people of the United States," as a grand aggregate, have limited the power of Congress, and the people of the individual states, viewed as smaller aggregates, have likewise limited the sphere of authority of the different State legislatures. The matters allotted to Congress are, in a sense, specially enumerated, the unenumerated residuum being reserved (subject to certain prohibitions set out in the Constitution of the United States) (c) to the States or to the people; but the State legislatures again may be, and in many cases are, under the State constitutions, bodies with specially enumerated powers.
In short, in the American system there are matters over which no body has legislative power, matters held in reserve, as it were, by the people of the United States, or by the people of the respective States. Contining our attention to Congress, we have to point out, what has been before referred to (il), that after the enumeration of the special matters (themselves described in very comprehensive terms) over which Congress is to have legislative power, there follows this clause (c):
- To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof”: and under this clause, as construed by Marshall and his successors, the powers of Congress in relation to the National government of the United States can hardly be said to be specially enumerated powers only.
Nothing short of the most thorough mastery of the United States constitutional system would warrant one in drawing analogies between the line of division they have ailopted and that drawn by the B. N. A. Act. The Judicial Committee of the Privy Council, while not slow to express
(c) Art. I., sec. 10.
(d) Ante, p. 9.
(e) Art. I., sec. 8.
their admiration for the Supreme Court of the United States, and the eminent jurists who from time to time have occupied seats in that tribunal, have always deprecated any attempt to draw analogies between the Canadian and the American systems. The view of the Committee is thus expressed in a late case (f): “Their Lordships have been invited
to apply to the construction of the Federation Act the principles laid down for the United States by Chief Justice Marshall. Every one would gladly accept the guidance of that great judge in a parallel case. But he was dealing with the constitution of the United States. Under that constitution, as their Lordships understand, each State may make laws for itself, uncontrolled by the Federal power, and subject only to the limits placed by law on the range of subjects within its jurisdiction. In such a constitution, Chief Justice Marshall found one of those limits at the point at which the action of the state legislature came into conflict with the power vested in Congress. The appellant invokes that principle to support the conclusion that the Federation Act, must be so construed as to allow no power to the provincial legislatures, under section 92, which may by possibility, and if exercised in some extravagant way, interfere with the objects of the Dominion in exercising their powers under section 91. It is quite impossible to argue from the one case to the other."
This passage suggests that, in the view of the Committee, the absence of the power of disallowing State legislation may have led the United States courts to scrutinize that legislation more closely, and may have caused the adoption of the wide interpretation of the article of the “ Constitution" above quoted.
(f) Bank of Toronto v. Lambe, 12 App. Cas. at p. 587.