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was intended to embrace sentences for offences tried in the colonies under the special jurisdiction conferred by 12 & 13 Vic., since there is no trace of any intention on the part of the legislature to change the policy of that Act, which orders these sentences to be passed according to the law of England.
"This construction creates no conflict between Imperial and colonial authority, and in no way affects the rights and privileges of the colonial legislatures. It simply affirms that the Imperial statute, which gave the courts of the colonies quoad offences committed upon the seas beyond their territorial limits, a jurisdiction which their own legislatures could not confer, was altered by a subsequent Imperial Act.” This
case, as will be seen, is a pretty strong one, as the alteration of the previous Act (which alteration was held to have effect in the colonies) was an alteration by implication, and not by direct amendment or repeal.
It is beyond the scope of this work to enumerate even briefly the various Imperial Acts (g) which to-day lay down, on various matters, the law for our guidance and submission. The most that can be done is to indicate, with no pretence of exhaustive treatment, some of the subjects
(9) For other cases involving an enquiry whether or not some particular Imperial Act extends to Canada, see:Routledge v. Low, L. R. 3 E. and I. App. 100—Copyright Act (5 & 6
Vic. c. 45).
Lyons, 6 U.C. Q. B. (O. S.) 627-An Act respecting Declarations
in lieu of Oaths.
v. McNeil, 9 Grant, 305—Lord Lyndhurst's Marriage Act 5 & 6 Wm. IV. c. 54). "The colonies are not mentioned in the Act, nor included by any necessary or even strong intendment.”
v. Bennett, 22 U. C. C. P. 393—Orders in Lunacy (11 Geo. IV. and i Wm. IV. c. 60).
Re Squier, 46 U. C. Q. B. 474—Removal of Colonial Officers, (22 Geo.
III. c. 75).
Georgian Bay Trans. Co. v. Fisher, 5 0. d. R. 383—Merchant
Mowat v. McPhee, 5 S. C. R. 66.
Hanson, 18 S. C. R. 667, at p. 681-English Joint Stock
on which the Imperial parliament does legislate for us. We have adverted, to some extent, to the general nature of such subjects in a previous chapter, and have indicated that they are subjects which are deemed to be of common concern to the whole Empire, but it will be advisable to defer any further remarks upon this branch until we come to treat of those sections of the B. N. A. Act which divide the field of colonial self-government allotted to Canada between the parliament of Canada on the one hand, and the Legislative Assemblies of the various provinces, on the other (h).
(h) The “Chronological Index,” published with the English Law Reports, affords a convenient method of tracing the fate of Imperial Acts. See sub. tit. “Colonies " and the various cross-references.
THE SOURCES OF OUR LAW.
In the last chapter, we pointed out the necessity for a careful distinction between Imperial Acts which are in force in any particular colony because “made applicable to such colony by the express words or necessary intendment” thereof (a) and Acts which (as coming within the term English law, or the law of England) have been, by Imperial grant or colonial adoption, made the law of the colony. A constant guard must be maintained with reference to this distinction. In the last chapter, the extent to which we are subject to the law enacted in and by the former class of Imperial Acts was discussed. This chapter will deal with those Imperial Acts, and those only, which have no expressed reference to the colonies in general, or
any colony in particular, and the enquiry is to be—To what extent are such Acts to be held in force in Canada ?
In entering upon this enquiry, it becomes at once apparent that there is a marked variety in the position of the various provinces of which the Dominion of Canada is composed; and that the extent to which English statutory law, of a general character, is in force in the different provinces, is by no means the same. The reasons for this variety are to be sought in the differences which mark their
(u) 23 & 29 Vic. c. 63, s. 1 (Imp.).
early history as separate colonies of Great Britain–differences as to the mode by which they attained that distinction–differences in the methods employed by Imperial authority, in determining what system of jurisprudence should be given to such of them as had that question settled for them by Imperial authority—differences in the extent to which English law was adopted by such of them as determined the question for themselves—differences as to the point of time in reference to which the introduction took place.
A question of this kind,” said Chief Justice Robinson, in 1845, “ arising in any British colony, must depend upon the manner in which the law of England has become the law of that particular colony; whether it has been merely assumed to be in force upon common law principles, as in the case of new and uninhabited lands found and planted by British subjects; or whether it has been introduced by some positive-enactment of the Mother Country, or of the colony, or (as may be done in the case of a conquered country) imposed by the mere act or regulation of the King, in the exercise of his royal prerogative” (b).
It may be said that in Canada there are, among the provinces, representatives of each of the classes of colonies referred to by the eminent Chief Justice whose words we have quoted; and an apology, therefore, is hardly in order for making our inquiry, so to speak, by provinces.
The reader should, perhaps, be warned that many of the English statutes, upon which discussions have taken place and decisions been given to the effect that they must be held to be in force here, are not, at this date, in force in Canada, and for the reason that the subject with which they leal has, since they were under judicial scrutiny, received attention at the hands of our parliaments. It cannot be too carefully kept in mind that it is only in the absence of Canadian or provincial legislation
(b) See post, Chap. VI.
(as the case may be) on the subject, that any question can arise as to the effect here of an Imperial enactment, passed before the date in reference to which, English law is to be taken as a fixed “body” of law, and as such introduced into the different provinces. The cases are collected and reviewed in order to enable the reader to fully grasp, if possible, the principles on which the decision must rest, which admits or denies any Imperial statute as operative here, rather than as showing what particular Imperial enactments are to-day in force in the different provinces of Canada.
Seniores priores. —Nova SCOTIA, as the oldest of the provinces, is entitled to the first consideration. We have alreadly referred to the claim made by the General Assembly of that province in 1759, that Nova Scotia “did always of right belong to the Crown of England, both by priority of discovery and ancient possession” (€)
. By the Nova Scotia courts, this claim would appear to have been recognized; to this extent, at all events, that Nova Scotia has always been treated as a colony by settlement as distinguished from a colony obtained by conquest or cession. Owing to the absence of reports of the early decisions in that province, we are unable, by direct reference to decided cases, to show the way in which this question-how far English law was leemed to be introduced-was treated in the earlier years of its history. There is, however, one decision in that province which may be considered classic upon this question, and subsequent decisions have practically been but the application of the principles enunciated in that case. The decision to which we refer is that of the Supreme Court of Nova Scotia, in the case of Uniacke v. Dickson (sl). Chief Justice Halliburton, who then presided over the court, haud, at the time this decision was given (19th February, 18+8), Occupied a seat on the bench for over forty years. Both on account of the exhaustive treatment of the whole ques
(c) ante, p. 26.
(d) James, 287.