Lord despatch as Colonial so far as it deals with the subjects given to the parlia- Prop. 12 ment of Canada, as amendatory of the British North. America Act." He then refers in support of his Refers to view to the cases mentioned by Mr. Bourinot in his Carnarvon's article referred to above, and also mentions a to Canadian Copyright despatch of Lord Carnarvon of June 15th, 1874, Act of 1872. with reference to the Dominion Copyright Act of 1872, which stated that he had been unable to advise Her Majesty to assent to the Act, and that the effect of the British North America Act was "to enable the parliament of Canada to deal with the colonial copyrights within the Dominion," and that "it is clear that it was not contemplated to interfere with the rights secured to authors by the Imperial Act of 5-6 Vict., c. 45, or to override the provisions. of that Act," remarking:-"The opinion of Lord And the Carnarvon seems to have been based on a strict view Laws Validity taken of the Imperial statute known as the Validity of Act. Colonial Laws Act, 28-29 Vict., c. 63, which declared that colonial statutes should be void and inoperative if they should be repugnant to the provisions of any Act of parliament extending to the colonies, or repugnant to the provisions of any order or regulation made under the authority of such Act, and having in such colony the force and effect of such Act. There may be grounds for argument that, as the British North America Act was passed subsequently to the statute, it confers a constitution more liberal than those to which the statute applied. Another view which may be urged is, that the repugnancy, in order to have the effect indicated, must exist in relation to some statute passed after the creation of the legislature of a colony. The statute does not seem, certainly, to have been construed by the judicial decisions in the manner 1See supra p. 223, n. 2. Prop. 12 indicated by Lord Carnarvon. If the view which his lordship takes is correct, it will be impossible for the parliament of Canada to make laws in regard to any one of the twenty-one subjects which constitute the 'area' of the Canadian parliament, (to adopt the phrase used in the decision of Hodge v. The Queen in relation to the Ontario legislature1), when such legislation is repugnant to any legislation which existed previously, applicable to these subjects in the colonies. There undoubtedly did exist Im perial legislation as regards all those subjects in the colonies at a time long anterior to the gift of representative institutions, and it was never supposed to be necessary that Canada, or the provinces now constituting Canada before the Union, should obtain the repeal of that legislation by the Imperial parliament, before they proceeded to adopt such measures as became necessary, from time to time, in the government of the country. It is respectfully submitted that, in respect to all these subjects, the parliament of Canada must be considered to have the plenary powers of the Imperial government (to quote the words of the Judicial Committee), subject only to such control as the Imperial government may exercise from time to time, and subject also to Her Majesty's right of disallowance, which the British North America Act reserves to her, and which, no one doubts, will always be exercised with full regard to constitutional principles and in the best interests of the Empire when exercised at all." Plenary powers of Dominion parliament. A Return of further correspondence was made to Parliament in 1892, from which it appears that in July, 1890, Sir John Thompson had an opportunity 1See 9 App. Cas. at p. 132, 3 Cart. at p. 162. 2Dom. Sess. Pap., 1892, Vol. 12, No. 81. See, also, ibid., 1894, No. 50, and infra p. 231, n. I. Knutsford's of urging his views in personal conversation with Prop. 12 Lord Knutsford, Secretary of State for the Colonies, and in a report to the Governor-General of December 15th, 1890, he says, referring to this conversation:-"Lord Knutsford was unfavourable to the Lord view which I had put forward, as to the powers view. of the parliament of Canada, in my report to your Excellency dated August 3rd, 1889. This matter formed the ground of much argument between his lordship and myself, resulting in neither party changing his opinion. Lord Knutsford concluded the discussion by remarking that unless the constitutional question should be decided in our favour by the Judicial Committee of the Privy Council, he thought it would not be practicable to get the British parliament to pass an Act to set the colonies free as to legislation on the subject of copyright."1 Conceding, however, Sir J. Thompson's contention The position to be unsound, the fact remains that it is difficult matter. to draw any essential distinction between holding. the great self-governing colonies to the provisions of Imperial Acts extending to them, but passed prior to the grant of self-government, and the Imperial parliament now passing an Act of the same character embracing such colonies within its scope. The exercise of Imperial authority is as strong in the one case as in the other. On the other hand, there would appear to be nothing to show that in conferring self-governing powers upon the colonies, it ever was the intention of the Imperial Crown and Parliament to lessen or detract from the right It appears, from the statements made on February 7th, 1895, by Sir Mackenzie Bowell, the Premier, and Sir C. H. Tupper, the Minister of Justice, to a deputation of members of the Copyright Association of Canada, that their government was fully resolved to adhere to the contention as to the powers of the Dominion parliament raised by Sir J. Thompson: (reported in The Daily Mail and Empire of February 8th, 1895). of the Prop. 12 of the latter to include such colonies within the scope of an Imperial Act extending to them, upon any subject, save only taxation for the purpose of raising a revenue, in respect to which the Declaratory Act, 18 Geo. III., c. 12, is, of course, explicit. But the policy of such legislation, and how it would now be regarded by the inhabitants of the colonial possessions affected by it, is a different question.1 Whence comes power over such Imperial Statutes of In conclusion, a question may present itself to the mind as to how it is that a colonial legislature Acts as the can have power to amend or repeal in respect to Elizabeth the colony an Imperial statute such as the wellknown statutes of 27 Eliz., c. 4, and 13 Eliz., c. 5, the former of which, for example, purports to be amended, and the meaning of the latter declared by Ontario Acts. In Sir George Cornewall Lewis' Essay on the Government of Dependencies a theory and explanation is advanced on the point as follows:-"In an English Dependency which has explanation. been colonized by Englishmen, the laws of the mother country are in force so far as they suit the condition of the colony; and an English Dependency acquired by treaty or conquest retains generally the laws which it possessed at the time of the acquisition. But the laws just mentioned are not considered as being among the laws of the supreme government, which the subordinate government Sir G. C. Lewis' 1See Dicey's Law of the Constitution, 3rd ed., p. 102, who remarks:-"No Victorian Act would be valid that legalized the slave trade in the face of 5 Geo. IV., c. 113, which prohibits slave trading throughout the British dominions; nor would Acts passed by the Victorian parliament be valid which repealed, or invalidated, several provisions of the Merchant Shipping Acts meant to apply to the colonies, or which deprived a discharge under the English Bankruptcy Act of the effect which in virtue of the Imperial statute it has as a release from debts contracted in any part whatever of the British dominions. No colonial legislature, in short, can override Imperial legislation which is intended to apply to the colonies." See, also, per Proudfoot, V.C., supra pp. 213-4; also, see supra p. 212. 2Ed. 1891, at p. 201. cannot alter; probably because they are considered Prop. 12 to have been established directly by the express or tacit authority of the immediate government of the Dependency, although they were so established with the tacit consent of the supreme government. The laws of the supreme government, which, according to the English practice, the subordinate government is unable to alter, are the written laws of the supreme government which apply explicitly to the Dependency, and were, therefore, passed at the time or subsequent to its colonization or acquisition, or they are the written laws of the supreme government passed before or after its colonization or acquisition, which apply to the Dependency by a general description."1 By way of supplement to what is above stated in reference to copyright laws (supra pp. 225-30), it may be added that in a Return to Parliament in 1894, (Dom. Sess. Pap., 1894, No. 50), is printed the report of the departmental representatives (of the colonial office, foreign office, board of trade, and parliamentary counsel's office) appointed to consider the Dominion Copyright Act of 1889, and this report states (at p. 7):-"On January 5th, 1889, the law officers advised that, in their opinion, the then existing powers of colonial legislatures to pass local laws on the subject of copyright in books were probably limited to enactments for registration and for the imposition of penalties with a view to the more effectual prevention of piracy, and to enactments within sub-section 4 of section 8 of the International Copyright Act, 1886, with reference to works first produced in a colony.' And at p. 10, it is also stated :-"On the question of the competency of the Canadian parliament to pass the Act of 1889, Lord Knutsford took the opinion of the law officers of the Crown, who reported on December 31st, 1889, that in their opinion the powers of legislation conferred on the Dominion parliament by the British North America Act, 1867, do not authorize that parliament to amend or repeal, so far as it relates to Canada, an Imperial Act conferring privileges within Canada, and that, in their opinion, Her Majesty should withhold her assent to the Canadian Act of 1889. On the 25th of March, 1890, Lord Knutsford sent a despatch to Lord Stanley of Preston, the Governor-General of Canada, in which he expressed his regrets that he was unable to authorize the Governor-General to issue a proclamation to bring the Canadian Act of 1889 into force. Lord Knutsford referred to the advice of the law officers as to the competency of the Dominion parliament to pass the Act." It may be further added that in this despatch of March 29th, 1890, which the writer has seen, special reference is made to the decision in Smiles v. Belford, mentioned supra pp. 213-16. |