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Full text of "Opinion of Judge Steadman, of the York County Court [microform] : delivered in 1868, upon the power of the judiciary to determine the constitutionality of a law enacted by the Parliament of Canada or a provincial legislature, with his reason therefor ; also, observations upon two cases involving the same question since determined by the Supreme Court of New Brunswick"

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OPINION OF 

Jl T)(iK STEADMAN. 

OF THE YORK COUNTY COURT, 

Delivered in lS(iS, upon the 

POWER OF THE JUDICIARY 

TO 

DETERMINE THE CONSTITUTIONALITY 

of -I Law enacted bv the Parliament of Canada or a Provincial Legislature, 
with his reasons therelor. 

Also — observations upon two casrs involving the same question since deter- 
mined by the Supreme Court of New Hriinswick. 

FRII-TTEID B"Vr ORDER, OF THE I_.BOISL.A.XtJRE. 



OPINION OF 

a"TJiDa-E STEA.nDiyi:A.isr, 

OF THE YORK COUNTY COURT, 

Delivered in 1868 , upon the power of the Judiciary to determine the 
Constitutionality of a Law enacted by the Parliament of Canada 
or a Provincial Legislature, with his reasons therefor. 

Also — observations upon two cases involving the same question 
since determined by the Supreme Court of N. 6. 



A QUESTION touching the constitutionality and binding force of laws 
enacted^ by the Parliament of Canada and the Provincial Legislatures having 
been raised before the legal tribunals in soma of the Provinces, and an appli"- 
cation involving the legality of a law passed by the Legislature of this Pro- 
vince in the Session of 1868 in amendment of the Insolvent Confined Debtors 
law, having been made before me, and I having declined to take jurisdiction 
to determine a question of that nature, I now propose to state the reasons, 
in as brief a manner as the great importance of the subject will admit, which 
influenced my judgment upon that occasion, with a few general observations 
upon two cases involving the same question, which have since been determined 
by the Supreme Court of this Province. 

In stating my views I desire it to be understood, that I do so with the 
greatest possible respect for the admitted legal abihty of the Court, and also 
with a proper deference to the opinions of a number of eminent legal gentle- 
men at the Bar who differ from me. But speaking respectfully, as I have 
not yet heard any reason advanced sufficient to convince me that the conclu- 
sion at which I first arrived was erroneous, I am induced to state the prin- 
ciples and reasons which it still seems to me ought to obtain in the determination 
of this (to the people of the Dominion) most important question. 

It is necessary in order to a correct understanding of the nature of the 
question involved, first, to inquire in what character we are to view the 
British North America Act. Is it in the nature of a written constitution, 
adopted by the people of the Dominion as the foundation and basis of a new 
Government, by which several distinct bodies of Executive and Legislative 
authority are created, with Umited and exclusive powers granted to each, and 
each executing its authoiity independent of the other, providing also for a 
judiciary, with extraordinary powers, reserving to themselves all other powers 
and authority not expressly granted ? 



Is it in the nature of an Act of Parliament by which the loi^ established 
political rights and legislative authority of the people are swept away, and new 
and limited powers granted, and investing the judiciary with extraordinary 
powers, establishing a system of government different in its character from 
the British Parliamentary system ? 

Or shall we viow it as an Act of Parliament not granting any new political 
rights or legislative powers not previously possessed by the people, but 
rather as establishing an additional body of Executive and Legislative authority, 
having relation to that already existing through the negative legislative power 
of the Governor General, and distributing the legislative authority between 
the Dominion and Provincial Legislatures for the greater convenience of each 
in the work of legislating for the peace, good order and government of the 
Dominion and Provinces, leaving the judicial power as it was before the 
passing of tie Act, viz: an authority subordinate to the legislative, created 
for the purpose of interpreting and administering the laws ? 

It will scarcely be contended that the British North America Act should 
be regarded in the character stated in either of the first two propositions, but 
rather in that stated in the last proposition ; that is to say, as an Act of Par- 
liament passed for the purpose of reorganizing the several Provincial consti- 
tutions and governments then in existence, each possessed of complete and 
ample powers of legislation within the respective Provinces. 

Viewing it then in this light, it is necessary to examine what were the 
powers of the several Provincial Legislatures, prior to the Act coming into 
force, and whether the legislative was in any way subordinate to the judicial 
authority. 

The Parliament of Great Britain, consisting of the Queen, Lords and Com- 
mons, is the Supreme power of the nation, and whatever Parliament does no 
other power can undo. The Colonial Legislature, before Confederation, 
consisted of the Governor, Legislative Council and House of Assembly as 
the affirmative legislative authority within the colony, with the negative legis- 
lative power in the Sovereign, These four branches constituted the supreme 
legislative authority of the colony, possessed of the same power within the 
colony that the Parliament of Great Britain possessed within the United 
Kingdom, and whatever the legislative authority enacted, no other power 
within the colony could refuse to give effect to ; the negative legislative 
supremacy of the Sovereign being always presumed in the affirmative, until 
si^ified to the contrary. The judiciary of the colony could no more assume 
negative jurisdiction over the laws enacted by the Legislature than the judiciary 
of England, Ireland and Scotland could assume a negative jurisdiction oveJ' 
the laws enacted by Parliament. 

The Royal Commission to the Governor, prior to Confederation, and the 
Royal Instructions accompanying it, (an authority not to be questioned ), estab- 
lish this proposition too plainly to be controverted. The Royal Commission 



r 



« I 



authonzid the Lieutenant Governor, by and with the advice and consent of the 
Legislative Council and Assembly, to constitute and ordain laws, statutes and 
ordinances, for the public peace, welfare and good government of the colony 
and the people and inhabitants thereof, &c, which said laws, statutes, and 
ordinances were not to be repugnant, but as near as local circumstances would 
admit agreeable to the laws and stutnies of the kingdom. 

♦ "^^5 f°yt^.I"^''^^''^io»^ expressly declare what the Imperial authorities in - 
tenaed by this statement of legislative powers contained in the Royal Com- 
mission, and the authority by which alone the Legislature was to be restrained 
in the exercise of such powers, and is expressed in the following words •— 
' Whereas great mischief may arise, from passing Bills of an unusual and ex- 
traordinary nature and importance in our Plantations, which Bills remain in 
force there , from the tme ,J enacting until our pleasure be signified to the contrary 
we do will and require you, not to give your assent to any Bill or Bills of an 
unusual or extraordinary nature and importance wherein our Prerogative or 
the property of our subjects may be prejudiced, or the trade and shipmnB: of 
our Kingdom in any way affected, until you shall have transmitted unto us 
n-n"^ Tl n °'''' P^'icipal Secretaries of State the draft of such Bill or 
iiills, and shall have received Our Royal pleasure thereupon, unless you take 
care that there be a clause inserted therein suspending and defe ring the execution 
fnereoj until our pleasure shall be known concerning the same." Trade and 
Shipping were always regulated by laws enacted by the Imperial Parliament 
applying to and leaving force in all the colonies. Yet by this authority either 
Qt them might have been affected by laws enacted by the Colonial Legislatures 
ft nV^ ■', T ??^'' ''^ ^"'^''' *°^ Amyotts on Statutes "that all laws of 
the Colonial Legislature remain in force within the colony until disallowed 
by the Sovereign." The clause in the Royal Commission " which laws statute 
etc., are not to be repugnant but as near as local circumstances will mil 
agreeable to the laws and statutes of the Kingdom," is only directory, ana .'u. 
Colonia Legislature is to judge in the first place of the necessity according to 
the local circumstances of the Colony, subject to the approval or disapproval 
oi the sovereign. *^*^ 

There is no instance on record in any of the Provinces, that I am aware 
ot, where the Courts before Confederation assumed jurisdiction to declare the 
!iovereign mil and to disallow a law enacted by the Legislature. On the 
contrary the Courts in New Brunswick have recognized and acted under a 
law passed by the Legislature in 1850, which, after reciting a section of an 
Act ot Parliament, having force in this Province, in express words declared 
It to be repealed and of no force or effect within the Province. It did not 
occur to any one at that time, not even the law officers of the crown, by whom 
all colonial laws are carefully examined, that the legislature had no power to 
legislate in that way, that is, by expressly repealing an Act of Parliament 
so lar as it related to the Province. In the case of the Queen vs Kerr — 
determmed by the Supreme Court of this Province, the late Chief Justice 
Ohipman m deliyenng the judgement of the Courts, peaking of laws passed 



by the Provimial Lcgis aturc said : «« It Is a thing unheard of und*r British 
institution, or a judicial tribunal to question the validity, or binding ?oce 
to h/Z^^ Z \"^u" t^^ ''^''''^' ' ^'^ «° P-«^d goes^into force. LbTect 
uthorl V n?Th [ '^" Sovereign." This fourth branch of the legislative 
™ n '?°"^ was incorporated into the colonial constitution for the 

Z xTnJrl '^''' f preventing mischief or injury to the general interest, of 
rnlon-Tf°'"-' w? unnecessary conflict with the laws of Parliament. But the 
Colonial Legislative authority has often and repeatedly been exerted to alter 
and repeal laws enact.^l by Parliament, so far as they related to the colony 
whenever It was deemed necessary in the interests of the colony. If the' 

cS X-n^nf ^°^ '° ^'' *'^" ''''' ^°"^^ '^ "° - '^ '^-^ - 
By the comity of nations, the laws of the country where a contract is made 
and upon which an action is brought in a foreignc ountry, govern the JuTcial 

oy me l^ourts in England, and if an action be brought in England uoon a 
contract made m any of the colonies, the law of that colony wWe the con- 
tract was made obtain., unless it be repugnant to some law of Pa Wn 
made in regard to such colony, then the comity is denied and the law of the 

Ltd"' Ztl. 1 '""". v^ '\' ""1 ' ^ '' ^- "I ' '' - -de void "nEng. 

It is well established that no statute of the Imperial Parliament extends to 

fZrT^ZT ut'' '' '' '""^'"''^y '' ^''^^''^- The Act 7 and 8 Wm III 
enacts that all laws, usages and customs which shall be in pactice in any of the 
Plantations repugnant to any law made or to be made inlhis kingSomM ,t! 
to thesa^dplantatzori shall be utterly void and of no effect. B^t it does not 
ay It shall be utterly void and of no effect within th: Plantation and therefore 

nower'of !?'."" "-'^ '^'' '^'' ^ " '""'''^'''^ ^^'^ '^' S^P^eme consitSal 
power of the Sovereign to enact laws with the advice of the Legislature to be 
m force within such colony. Nor was it ever supposed that If couM be in! 
ferred from the provisions of that Act that Parliament had invested the 
colonial legal tribunals, from the highest to the lowest, with juri SLt on over 
the Acts of the Supreme legislative authority of the colony, wh ch Dos^essed 
the power to constitute such courts and to add to and take' fTom thei fi^'s 
diction as might be considered necessary or expedient. their juns- 

It is laid down as the rule by the Commission of Legal Enquiry for the 
Colonies, that " no colonial law can be disallowed excepc by order o;^^7qu^)1 
amal and when disallowed, and so signified by the mode pointed oi^Ttl^ 
Royal Instructions, it is void within the colony, as well as in EWfand Tht 

ba ed wtrdn t^T^^ fr'' "^T-"^^^^ *^^ ^^^^^ insTrulns^at 
Trih 7 / , .t^ *^^' ^^'"^^ P^^*-^^ '"^ ''^e ^''i'^nij remain in force th^re 

untdihe rleasu>e of the Crow,, is s^.nified to the contrary; the Governor bebe 
directed not to jjive his asspnf- fr^ »«,. r;ii« ^c "^ T '^"**'^°0'^ oemg 

natore or affecting trade andThireing' °' '° """"""' "' """"'i-'y 



fi 



i 



\5 

in f/ 7° ^'« w^^'l'ff '"* ^^'!^'^ ^'^ ^''- '^" ^"'•^ " repugnant" as used 
m the 7 and 8, Wm. III. is explained, and it is therein declared that laws of 
a colony rq>ugnant to an Imperial Statute relating to the colony shall be 
Imerial Statute '''''''"' °^ '""'^ repugnancy, and shall be read subject to the 

The Legislature of Upper Canada, in the year 1839, passed an Act provid- 
ing for the sale and disposal ot the Clergy Reserves, making provision for the 
application of the money arising from the sale thereof. Numerous petitions 
froni the clergy and others interested were presented to the House of Lords 
m the osssion of Parliament 1840, praying that House to pass an Addrecs to 
Her Majesty that the Act of the Legislature be disallowed. Four questions 
were submitted by the House of Lords to the Judges of England, one of which 
was, whether the Act so passed was repugnant to the provisions of the 7 & 
8, Cieo. IV, and consequently void, The Judges answered that it was, but 
did not say, neither were they asked to say, whether if the Queen did not de- 
Clare her dissent to the law passed by the Legislature of Upper Canada, but 
left it to I/* operation, it would be of binding force or void in that Province — 
Her Majesty disallowed the law and so declared it void wilhin th. Province ot 
Upper Canada. ' 

In an action brought in the Court of Queens Bench, England, against the 
late Governor of Jamaica, on account of excesses alleged to have been com- 
mitted by him in quelling the rebellion that took place in that colony during 
hiB administration, under the Act of Parliament 11 & 12, Wm. Ill which 
rendered him liable to an action in England for oppressive acts corimitted 
upon Her Majesty s subjects in the Colony while Governor thereof The 
Legislature of Jamaica, after the rebellion, had passed an Act of Indemnity 
relieving the Governor and all others from all actions brought against them tbr 
or on account of any act committed in putting down the rebellion. But it was 
contended on the part of the Plaintiff that the Act of Indemnity was repugnant 
to the Imperial Statute 11 and 12, Wm, !:i, giving the Plaintiff aright of 
action, in England, and must therefore I read by the Court subject to that 
Act, according to the provisions of 28 & 29 Vic, and not according to the 
rule of comity. It was never contended that the Act of indemnity was void 
in Jamaica because repugnant to the 11 and 12 Wm. Ill, or that it must 
be read by the Courts in Jamaica subject to the Imperial Act, had an action 
been brought there against any party engaged in quelling the rebellion. It 
was admitted that the Act would be an answer to any action brought in the 
Colony The Court decided, as did the Court of Exchequer Chamber on 
appeal from the Queen's Bench " that the Crown as well as Parliament Lad 
power to establish a Colonial Legislature with supreme Legislative powers 
within the Colony over all acts done or to be done within its territorial iuris- 
diction. That the comity extended to the law of foreign nations must be ex- 
tended to the law of the colony. But if a law passed by the Colonial Leeis- 
lature was repugnant to an Imperial Statute relating to that Colony, it mUst 
be read by the Courts in England by the 28 and 29 Vic, subject to each 



in any colonial court be taken by anneal tl ,h«^ r , • Z'^" '''^''" ^'■°"»^>* 
Privy Council, the controversy wHl KeterrnJn. 1 i Committee of the 

and the law of the colony wherj the ca.l f ?• "^'=°^^'"? »» 'he cotJvity, 
and not the law as in Engird "'''°" '"'""^'^ ^^" ^' ^PV^^^^ 

^z^^j:^::,::::^^^^ ^^t -ythi„g i„ the Bntish 

in conjunction with the SoS„ a VI^^^^^ 

laws passed by either of the leSite bSlso^^^^^^^^^ ^'''''^^' ^^^^ 

nor be of binding force ? '^^'''^''''^ ^'''^'^' ^^ 'he Dominion shall or shall 

It is true that the Royal CommissJnn tr. tu n 
which the two Houses of the Sa ure werP ^^^^^''^^^"^ « colony, under 
legislative powers. The subject! nrelrTlo 'TT^"^' '°°^^''^^'^ S^^^^^l 
desirable the legislature shoSrna « any^lll J ''^ •' ^"^^ "°' considerable 

Instructions accLpanying the VorniLln '^L^The'Il^'h^Nith'; ^°^*' 
Act names the particular subjects exclu8>elv«««;r«^f "ntish North America 
bodies. Although the rule th h .ovrns the ^1 ^^ ' ^ ^^Si^i^Hye 

kw is that " what is exclusively gfventoVn;:^^^^^^^^^^ of ordinary statute 

hibited to all others." still withou^t express iurfsdicti;ni« ^%"^T'"^^ P^^' 
judiciary. it is not within their provf^e o d^^^^^^^^^ "P°" ^^e 

mg the constitutional exercise of thi authon>v R !u' "1""'*^°" ^"^°1^- 
legislativ^. power of the sovereign was preserved L / "' ^^' ""'«'''''' 

liament of Canada, transferring tie faTe noijT T ^^'"'^ ^^ '^'^'" 
over laws passed by the ProvinLl LgisktuJes I I / 1^°'"°°''. ^''''''^ 
jurisdiction cannot be taken by one fw It • • ''^^^'' P"°ciple, that 
upon another and a higher tribunalwhich ho ^'' '' '' 'Y'^'^y ^^^^^^^ed 
ing power to create a juaiciary It 7s nt t • J'f'^" ^^^'''''y ''' Po««es8- 
of a supreme sovereign'tribunTto the nv t IToTo^f ITY'^''' J"'^'"-' 
however competent it may be to determketC question^ ^"^^''^'^^^^ *"bunal, 

The British North America Act i'<! n«f fi, 
the constitution of the UnTted States s^hestl"^'T' ^-'^ '"^ '^' '''''' '^^^ 
i. supreme in as much as it is th u hL^t ^whTch t^e dV'^' '^T''^'''' '' 
of our Confederate government are organized Tnd th. .. fT"' ^'P^'"^'^^ 
9nd to which each must look for the authori^v wK' Cv °^'^' P°^^^ ^''eate^^ 
which each department must, under the restrainW^^^ ^t^V°/f ^^^^^' ^'^^ by 
be governed in the exercise of its narticlrf ^ ?°''°^ °J tbe prerogative, 
supreme law in the sense that it cJntroL t^o ' h °".'' ^"' '' '' '^^^ '^^ 
udiciary. all Statute Law of the Zmiln P "l ^ ^'^hereut authority in the 
tares. It could not be such lithoutTkr. fr ^^'^'p -«d Provincial Legisla- 
wWch affirms the supremacy of the Lgtkfiv Tut^^^^^^^^^^ 
of the Act . not to restrict the legislate prer^gSwIf th^lo^fe^tT 



* s 



J. 



• 1 



extend that power The legislative authority of the Dominion therefore can 
alter the British North America Act, as it can any other Act of Parliament. 
80 far as It affects the internal government of the Dominion or any Province 
thereof, if not, self-government, the most vital principle of the British colonial 
system of government, is taken away. If Parliament had intended the British 
JNorth America Act to work such a change in our Constitution, and to make 
It the standard by which the legal tribunals were to judge and determine all 
statute law, it would have been considored a matter of sufficient Importance to 
have been made a subject of special enactment as involving a principle so 
entirely adverse to the theory of all British instil itions. If the provisions 
contained in that Act had been enacted by each of the Provincial Legislatures 
instead of by Parliament, and had received the assent of the Sovereign and 
the government of the Dominion had been organized under such laws', the 
judiciary would not have possessed any inherent power to place any limit to 
the legislative authority. Nor can it be argued that the Provincial Legisla- 
tures did not possess the right and authority with the assent of the Sovereign 
to organize of themselves the confederacy as now established, or in other words 
that the Crown had not power to establish the Parliament and Government of 
Canada. That the Crown possesses co-ordinate power with Parliament to 
establish a Legislature in any Province of the Empire is fully stated in the 
case of Phihps vs. Eyre. Surely then since it is established they have not lost 
the right, subject to the same assent, to alter or amend its constitution. There 
18 no restriction in the Act. It was not from want of power in the Provinces 
that application was made to Parliament to pass the British North America 
Act, It was because of the great difficulty of bringing so many minds to agree 
upon the details of so important a subject. 

^ By the Act of the Imperial Parliament for the Union of Upper and Lower 
Canada it was delared that each Province should have an equal number of 
representatives in the House of Assembly, with a proviso that the legislature 
of Canada, might alter the number if the Bill proposing such alteration should 
be adopted by a two-thirds vote of the members of the Legislative Council 
and House of Assembly. But for fear this restriction might not be sufficient 
It was further enacted that it should not be lawful for the Governor to assen't 
m Her Majesty's name to any Bill altering the number of representatives unless 
It was passed on the second and third reading with the concurrence of the 
two-thirds majority, and upon addresses of the Legislative Council and House 
of Assembly declaring that the Bill had been so passed. It was also provided 
S-11 i"^*^-' °^ ^^°^°°' *^^^' ^®' Majesty's assent should not be given to any 
Bill relating to Ecclesiastical rights and matters, waste lands of the Crown 
etc., until such Bills were laid before Parliament. What was the object of 
these restrictions upon the Governor General ? they must have been intended 
to serve some usefal purpose. Is it not a recognition by the Imperial Parlia- 
ment of the supreme legislative power of the Soverei^u to enact any law with 
•tv'^T^ ^°^ consent of the Legislative Council and Assembly, to be in force 
within the Province of Canada ? Were it noc for these restrictions, had 
the Legislative Council and Houae of Assembly, though not by a two-thirds 



signified her dissent, it would have wLt l • ^^^^^"g'^ ^ot afterwards- 
likely that either the GoTernt or Her E ^J^r ^^T^' ''"^ '' " "°* ^' -" 
of that nature so passed. The ho tX p W J ^'^ould'have assented to a Bill 
question of representation cou d n^faffJrT o 11" ^^^«\?-^?'^^e« on the 
matter of such vital importance '^""^ ^"^'^'"Sf ^» ^^"bt in a 

Council, not because the iSatu e was withonr°'*^'"'^°\°^*^^ Legislative 
sovereign, to effect such chair BuTfo^^ ft ^^'''''u^''^ '^' ^^«^^' of the 
Queen could not be had to a R," 11 '■^^'°'' ^^^"^ ^^e assent of the 

opposed to the theo./upn which allSH ' l'^'^ ^'' °' ^'^^-' ^^ - 
based, without the auUio^ity of pL Wn^^^^^ institutions are 

alw^s the result of a partj triu^l^^.^^S^^^^^^^^^^ ':^^ ^^^ 

^^^zt^:z::z^^^^^ -^^> ^-ught to 

writ of Mandamus to do an official act wkhir Z^^\ ^' compelled by a 
must follow that bv a wrif nf i-u-!- , ^^' °^oial authority. If so it 

penalties not to^fc aTl^^nd^h'^^^^^^^^^^^^ undJrpaLVam 

the judiciary power of the United Ss though t' "*?^- ?' ?^ '^"« ^'^ 
declare a statute law void, have never P^^rlf^ possessmg jurisdiction to 

acts of the Chief Magistrate of IL Sta e Br^^^''"" ''^ " """' '^' °®'^*^ 
pressly conferred by the Constitution In^ ^ jurisdiction there is ex- 

the official acta of tb^ Chief MaSa^e Buf'Z- :f.^'"'i\J'^"sdiction over 
V^herent in the original and coSu^^al p'o^e 3'" '^ 1?"^' ^' 

a natural result, the Supreme JudiVJ^l T.,' K ^ • , J^^'^iary. If so, as a 

applicable to minicipalloTernZ^s^^^^^^^^^^ "'"^^ ^'^t'^^ ^°*^' ^°^ 'he'rule 

and executive authorit e^s Th^re ^n be no^Z^VT^'' ^""^ ^^^ ^^^i^l^^i-e 
diction to declare a law made bv anv m„nf • ^^ u^"''^" J^^^^^^^^^as juris- 
the law of the land, and That the Zr^r?^-'''???"^ '''^' i^ repugnant to 
over the official Acts of the chief mu„S o£": ^f ""^'^ ^^^^ jurisdiction 
^-ny official act within their authTrkv 3 ,n ' ^"^jnay compel them to do 
not within their authorkv Now hlrP f P'""'"' '^'"^ ^'""^ ^^^"g ^^7 act 
why if the Courts can t^ke pfrt of^h s , "^^7 ^'""^ ''^^^'^ *° be assigned 
lative. they should notLkeTa ap^ i aSf ^^^^^ 'PP^^^^^'^ *° '^« 1^^- 

viuce an that ^el.LJ^Z.'^Z br^sTn^fSeSur ^''^■ 

sayf :. Tt'pTnp'fe? o^he^ dX^' ^- '^ ^^ •^''°?"^^°^ °^ ^^- United St... 
p -pnety ot the ac.eguuon of jurisdiction in cases arisirig undVr 



\' 



ng Eocle- 
ifter wards 
not at all 
I to a Bill 
es on the 
loubt in a 

'., autho- 
egislative 
;ut of the 
at of the 
a, and so 
tions are 
sures are 
ng party 

ought to 
3, by the 
aggested 
ed by a 

If so it 
ains and 
rue that 
ction to 
5 official 

is ex- 
on over 
imed as 

so, as a 
:he rule 
islative 
8 juris- 
nant to 
diction 
1 to do 
iny act 
signed 

legis- 
ty and 
iciples 
con- 
I. 

States^ 
under 



n 



the constitution, rests on the obvious consideration that there ousht always to 
^ some constitutional method of giving effect to constitutional provi^ons. 
What, for instance, would avail i^strictions on the authority of the State 
Legislatures without some constitutional mode of enforcing the observance of 
them. Ihe btates are by the Constitution prohibited from doin^ a variety of 

n^h^'' l.-wr \.u * , ,* ^° '^^'^ °^ «^°*« ^iS believe fhat 

such prohibitions would be scrupulously regarded without some effectual power 
in the government to restrain or correct the infractions of them. T/i/power 
must be ctfher a rhre.t negalive on ihe Sta'.e laws, or an authonty in the naiional 
counsto override such a^ shall minifestli, be in contravention to the Constitution 
ihe latter course was thought by the convention to be preferable to the for- 
mer : and it is without question by far the most acceptable to the States The 
same reasoning Che saysj applies with equal force to cases arising under the 
laws of the United States." The soundness of the reason here given for some 
power in the Constitution capable of restraining the several legislative bodies 
within the constitutional Hmits cannot be questi-ned. But the reason which 
influenced the members of the United State.- mvention when framing the 
Constitution, lor vesting t hit power in the judiciary, instead of the highest 
executive authority of the nation, is not applicable to 'the British Parliamentai-y 
constit tion, or to the British Colonial constitution. The preroc^ative power 
vestei m the Sovereign, hfis always been found sufficient to restrain the colo- 
nial legislatures within proper limits, and to prevent unnecessary conflict witH 
the laws of Parhament. In these days ot constitutional government the pre- 
rogative is only exercised in the best interests of the people. If under the 
British North America Act the Judiciary can assume this negative jurisdiction 
then we have two separate restraining authorities instead of one as heretofore! 

_ It will be observed that the reason assigned by Mr. Justice Story for vest- 
ing in the judiciary of the United States, the jurisdiction to declare laws 
enacted by either of the legislative bodies void, when in contravention of the 
constitution, was the absence of any negative power in the constitution. If 
there had been any such power, and no express jurisdiction conferred upon 
the judiciary, it is quite clear from his reasoning that the courts would not 
have assumed it. This is a power greater than the legislative power and 
cannot hi exercised by judicial supremacy. The question involved cannot be 
considered in the light of a conflict of laws, nor as a conflict between muni- 
cipal authorities. A conflict of laws arises only where there is found to exist 
in different countries, or in diff'erent localities of the same country, rules of law 
conflicting with each other upon the same subject, or where two statutes are 
found in conflict in prescribing a rule of law in respect to the same matter 
Now the British North America Act establishes no rule of law upon any of 
the subjects of legislation named iu the Act. It only declares what authority 
may enact a rule of law .n regard to such subjecis. And until two differ^ent 
laws are enacted concerning some one subject, there can be no conflict. The 
conflict raised ie. purely on the question of legislative authority between the 
Parliament of Canada and the Provincial Legislature, and not a conflict with 



10 

f^i'^^l^r:::'^^' - -^^ ^ iaw ana must bedete. 
finally enacted. ^ J^S'^'ative power; m cases of doubt before the lawL 

^^^^^::^:^:^f'r^:^!^' the prerogative power in the coo-. 
pertainty the binding Lee of aUstaLpl' '^'°l"*t °^^^^^^ ^°' ^^^S with 
jurisdiction is to he^JrM%'T,t:it^^^^^ be if^a final 

may be enacted which in the iud^m Jf^? .u "°''^': ^^'^ instance, a law 
within the authority as declared fc P .^^^^Jf ^^e tribunal is entirely 
public accept it as law, r„drWdualI nves^^'^ ^°^^ ^™«"^^ Act: the 
jmportantinterests become in vdved-aC^^ ''f ^^^'^-^^ «nd 

ladmdual anxious to avoid a responsibil v /^ ^^V^^'T '' '^'''^ ^y some 
into question before the Courts anrnrl!^ * '^^^^i^'tr of the law is brought 
of the judges it is in contravention of trr^"^^ joid because in the opinfon 
ess to say that in such Hase ^at in^.L" °"i^ °^ '^' ^''' I* » ^eed- 
mdividuals with great public njSrL ZrlZT^l^"'^ °^^ °^ P'^P^r^X to 
0. say that the best or only remeSv for sucH 1 ^-^ '• "« ^^^ffi^ient answer 
legislature keeping strictl/wW^L^thrdeTeeat^H "S!'^" *° ^' ^^""'^ ^^ the 
an impossibility Legislators like u^^^^^^^^ that is next to 

the question must be determined Cfere oninl 5 a"'? "" ™b'«' ^°d 
mmds may arrive at verv different coSsian,TT' *^ ^'^^' ""^ ^^«'«°t 
legi. ators and the Sovereign power mav be fn t ^°rrf' ^««ous then the 
provisions, they can only elercle fheTr L«^ - a''^ ""'^^'^ ^^^ constitutional 

th°r r.'^^ ^'l^ °P^"-" °f the Cour^ wiut i? 1^^^^^^^ '* " ^'"P-'^^e to 
the validity of their Act. '*^ *^*"^^ ^^^ to pronounce upon 

illutrsXThi::]^^^^ t^s province completely 

the inhabitants of that' town t issu^ bond^t " • ^""^ ' ^^" ^"*b°"-°^ 
Sr-f \-' the Houlton Branch Ra"!wa/ and /^^^^^^^ '''T^ »-d apply thf 
the inhabitants from time to time inrth^^' ^^tjiorized assessments upon 

mate redemption of the deb^ Thfbondfr- °' u *b^i°terest and the u^U° 

w-« ordered. A case was brought beJore the 'J^fn ^^^V''^"'^ ^"^ ^"^^^^^'^t 
tion for a writ of certiorari vv\th. J I Supreme Court, on an apnlica- 

that the law was .CS a^nf the^X^oif Th T""^".^°" '^^^^^^^ 
^was void and ordered the writ to i! ue A« J^- ?°"'' determined that 
Dominion Parliament for a remed al StJ;,f.f ^PPhcation was made to the 
with the bond holders ParUrml/ f T *° ^"^^^^ the Town to keep faith 

•ne of which was thl^L's'^tlved fn fhT aT^^^ '°^^^"-« --- ^ 
withm the powers of the PrnvL.;!] t • V^ '^'" '° ^"^^tion was sntirelv 
Parliament 4tertaining a^ o^nl 75 ff^^^^^^^^^^ ablest legal minS 

preme Court. Now if thp S^ '^''^^'^^"t from that expressed bv our S., 

^risdictlon, and the lat as deXTinTir' V"^' "^^-'^ - regtrdtothe" 
been done for which the S ut on an^^^^^^^^^^ 

oases must frequently occur if the SL "Vr' i -"^ °° «medy, and such 
of judicial investigation. The plerf-- .k T" '.° ^e made a subiect 

xne p.^ers ^.vcn ^ the Dominion Parliament to 



• » 



11 

levy taxes is confined to raising money for the general purposes of the Do- 
mimon. ihe power of levying taxes for a local purpose is exclusively assigned 
to the ProviDcial Legislatures. By the rule of construction adopted by the 
Court in the case referred to, any law enacted by Parliament in regard to local 
taxation must also be declared void. 

Another reason why the courts should not asssume this jurisdiction is to be 
taundin.the fact that it must often bring them in direct collision with the 
legislative authority, certainly a state of things not very desirable. In the 
case of the Queen w. Chandler, which arose under a law passed by the Legis- 
lature of this Province, in amendment of the Insolvent Confined Debtors Law, 
in which the Supreme Court granted a prohibition to Judge Chandler, foi- 
bidding him to discharge a confined debtor under the authority of the amended 
Act, tor the reason that it was ultra vires, and therefore void. The Lecrislature 
being determined to defeat the action of the Court, passed another law requir- 
!i°L u I . /°^ ^*°'®" to discharge from their custody all orisoners for 
debt who had been confined for a period of two years and upwards An Act 
was also passed whereby all officers were indemnified from all actions or 
suits on account of such discharge, or of any other act done in pursuance of 
the authority and direction of the first Act. An injunction was granted for- 
bidding the Sheriff of the City and County of St. John to discharge a debtor 
in his custody under the authority of that law. The Sheriff, however, did 
discharge the debtor m defiance of the injunction, and I think it was dis- 
covered thu. the Court was unable to enforce obedience or to effectually 
impose any penalties for the disobedience to its writ. It is hardly to be 
supposed that the legislature in such a case would be disposed to invest the 
Court with the necessary power of enforcement. Such a conflict of authority 
between the judiciary and the legislature ought never to occur. If it does 
occur It must cease whenever the latter chooses to assert its supremacy. If the 
egislature in the case of the Town of St. Stephen, should pass a law declaring 
the judgment of the Court void, and without force, (for which a precedent can 
be found m Imperial Legislation), and as in the case under the Insolvent 
Confined Debtors Law, pass an act of indemnity, and restrain the Court in 
the exercise of jurisdiction by injunction, or otherwise, and such law should 
receive the assent of the Governor General (of which there could be no doubt. 
His Jfixcellency having already sustained the authority of the legislature by 
the assent to the first law) the Court would be powerless to interpose and 
prevent the collection of the assessment, or the application of the money. 
Ihis IS a proceeding that ought never to be resorted to unle.'s the emergencv 
of the case justifies it. In this case the bon^olders have no right of appeal to 
the Judicial Committee of the Privy Council, the local authorities may not 
desire it, and the only Court of Appeal open by right to the creditors of the 
lown, 18 the Provincial Legislature. In this view then of the case any 
attempt on the part of the judiciary to restrain the legislative authority must 
tail lor any useful or practical purpose. 

Questions of great public importance must often arise in the legislation of 
tne Parliament of Canada, as well as in t^.o Provincial Legislatures, in which 



12 

determined by the lei? trih,?!»l •. '"'" ''^ ^ '^^^^^ °^ uncertainty unti - 

convenience, Ud it lay t?n the?. T"""^ •' ^f ^ ^° -"^-^ P^bHc in- 

legisbtivealwaysTdiSletrtribun.1 " .T°"^ ^'-^'^ T^ ''^'^ ' '^' 

comroi oy^the LSir^nTrcom "^ ')' J"f^V^^^ powe/exerciL's a 
(tliough it may be rilht\ i;M )? i, °, °^ ^'^^hority occurs, the former 

stated; and Zk was fthe Uni^pV^.^'^K '^ '° ^^^^ ^^ ^" ^^^ ^^«« I have 
CVart in regard To the duties to h. 7 ^"'ZT ^r^'''' '""'^ '^' Supreme 
Courts. Is'irwse then unir ^' ^''^T'^ \'^^ Judges in the Circuit 
jurisdiction oyeTthX^^^^^^^^ '^' judiciary to assume 

Wish North TmeriL Act trnr^^^^^ the Dominion, especially as the 

the legislative tTy capfwe of r^I^ f ' "'" "t'^^-'J^ ""^^^^'^ independent of 
monsTor, to adop^ th^WuaJeS rS^f ?'V''nu" '^'' ^-^^^^^tional pro- 
Sovereign a lemslative Lw.fZ- . Y "'^''"P^^P"^'"' '^ '^^^'"^^ '° the 
bpdie8in^^.A'|^a^;/;T:;^^^^^^^^^ ''^^^ °^ the legislative 

t&e juaiciHry to dSe a W v 'A ^ T'^^''' ^^^"^"^'««- Jurisdiction in 
tlie Britishiorfh Iterica Aa his IZ "^{.t ^"'""^^ "P°" ^^^ ^^^^y *hat 
Dominion to the cWac er anS pIV'^ f '^r '''^'''^"^^ legislatures of the 
«• t^e Superior CoureantaLtZ ?^ ?'^d^"^7„"^unicipal governments. 

tM all inferior court^rsttaL^^a^^^^^ '' ^"" •^^" ^ '"'-^"^^ °f ^°»"« 

fprce of every leZlatiractmJhK ^^ ^^- constitutionality and binding 
the Peace ex^erclng cTvirc^r^^mtnal^ question before a Justice !i 

Judges of the Supefior CourN wn K J""i'^^^°^' '"^"d the Justice like the 
judgement wheSTL^e^^^^^^^^^^ determine according to his 

or whether it is beyond thaf n„.K^ v a , ^f ^"^ive legislative authority, 
W unseemi; inTju ^icl of X^^^ so «W«j./, M It would appeJ; 
legislative authority, voTd but f the Lw T *^'t''^ ! ^r' '^^^^^'^ ^y the 
j:&diction,eV«,.,,^^r.;/b c^y tlZjrtv'"^- '^' ''''''' ^^^^ *^i« 
in a J-ustice of the Peace tihgwha? hroathrfoffi? ^'""° --/ ""-emly 
decide what the law is apcn-ST I- I •/ ^^''^ requires of him, viz: 
iHe Supreme CW^lr • ^ his best judgement, than in the Judges of 

ParhSt TuteS sotTeia^^^^^ ""^^ ^^ "^>' ^^ *»^'^^ *^^ I-Peria 

0/ Canada and of tLp?oy1ShT.'f ?'"'"' ''^ '"'^ P°^''* °^ '^' Parliament 
powers subordinatlL the uH^^^^^^^^ ?' '° '""^^^ *^^ ^^^^"^^ °f their 

S^the legal tZnals of thr Do -^ k^' IT' °' *^^ ^^^^est in authority 
advanced! nor have I been abETS-^"' ^"' ^ ^'^'^ "°^ ^^^ ^^'-^''^ ^ reason 
assumption can be bounded. '' '^^ '"'^^^^"^ "^^^^ ^^^^^'^^^ ^'^^h an 

i- i^^ "_°l^ "^^'^ *^ ^^^^^''^ anything that might have the ^npe.ranr-^ of -d''cule 
|^«i=.u,.nga great question like this; but I cannot fc^LarTayinglttt 






an 



13 

does not tend to elevate the character of the Provincial Legislature to hear 
Uunsel learned m the law arguing before a legal tribunal upon the constitu- 
tionality of a permissive liquor license law passed by the Provincial Legisla- 
ture, urging upon the court the profound argument, " that to prohibit the 
granting of a hcense to a country tavern, to sell liquor within the municipal 
authoniy, interferes with the regulations of trade and commerce, the right to 
export and to import, to buy and sell, in the foreign market ; that it affected 
the general revenues of the Dominion and robbed the government of Canada 
of Its just dues, That to impose a pecuniary penalty for selling liquor without 
« license, and imprisonment for its non-payment when imposed, was making 
the offence of so selling in a legal sense a criminal act under the term Crimi- 
nal Law in the British North America Act, and therefore void." Truly 
weighty arguments to advance upon such a question, apparently forgetting 
tnat all trade and barter within the Province must necessarily be governed by 
the laws relating to pioperty and civil rights, and that the only principle in- 
volved in such a law is the civil right of the subject to sell within the muni- 
cipal jurisdiction ; a civil right the most im'portant of all tights, and forgettincr 
also the sound principle that the greater right must never be merged iu the 
mmor right. If the two rights are inseparable, the minor must merge in the 
greater, which the Provincial Legislature has. Such occasions lead one to 
imagine that the Provincial Legislature is reduced to a mere Parochial Gov- 
ernment, instituted for the sole purpose of regulating the sale of int oxicating 
liquors and hke subjects within the limits of its Parochial Authority, and with 
very doubtful powers for even that. 

The Dominion Parliament is supposed to pass no law except necessary in 
the general interests of the Dominion and of like effect in all the Provinces 
except m a few instances in the case of Quebec. There ought, therefore, to 
be no arbitrary rule laid down by which any desired alteration in the laws of 
any Province could not be effected by its legislature, though such alteration 
in the opinion of some legal minds encroached upon the powers delegated to 
gie Parliament of Canada, if, in the opinion of the tribunal invested by the 
Wntish North America Act with the negative jurisdiction, such alteration did 
not infringe upon the powers so delegated. It experience should subsequently 
prove that the nature of any such alteration had been misapprehended, it 
would be in the power of either legislative body to correct the error, as was 
done m the case of a law passed by the legislature of this Province in regard 
to the Central Bank, which being lound to conflict with the authority assigned 
to Parhament was repealed at^he next session of the legislature. 

Where a Bill is passed by the Legislative Council and House of Assembly, it is 
the duty of the Lieutenant Governor to declare that he assents thereto, or that he 
witholds his assent, according to his discretion, subject to the provisions of the 
British JNorth America Act, that is as stated in Sections 91 and 92 He is 
required first to determine, which he does with the aid of the Attorney Gen- 
ral, whether the Bill so presented for his assent is in contravention of the 
authonty as declared in the two sections named. If so his duty is plain 



14 

either to declare his dissent or reserve it for th. • j • 
Genera . When a Bill so reserveTor aLt. ^^^^^^^^ the Governor 

General, he also is roquired fn/nr.? 7 1 *° ^' presented to the Governor 
doe, wieh .he aid of thrMTitTjtioe'L&V"' "''7 '■'"• ^^' 
m hks manner according to his discretion »n^-.u'^ ^'"'"°'' ""d determines 
h.8 dissent. In the lansua^of S T r -?u-*™"'' *"'«'' " declares 
assented to and duly enfcte'd ft „„r ■ ■'"'T Chipman, when a Bill i, ,„ 
and the legal tribunals a fboundTrirff'?'^ J"'" '""">' -""^ '" "."«. 
words of the Act as it was before Confrd. f .'"• " "■ *»»<>»ed (by the 
sage to the legislature, if i„ session or bt.°°^' • """' ^' ^^nMod by Ves! 
to be null after ,/« ,/ ' of,^kli^i7 ^ P'o^'^'Won, and the Act is deckr/d 

wftb ?i! '■pn,'""' ''°"" i° ">" Royal In tructrns * ll '"""P'"»'i''g i-«o the 
w«h the B,lls passed by the Senate and H™. fn" """^ ""'" '» adopted 
General acting with the aid of "he MM., f,"*^ Commons, the Governor 
gnant Governor and the lotdg^, XtJ l"'T.V'"f "'' °' *^ J^'"" 
Crown, and the Queen's Privy CouMilT ns'ead oLV"" '"" °«'^''™ "^ '>>e 

render valid^t l^'^iZ-^lZjTlr Tr'F^^^"^^ 

legislative jurisdiction The office „d„urt' °' T-d'"? "r nJ^^gZ 
determme what is within the powers conferrM ^ '^^ ^'i^"^ power is to 
this jurisdiction in the Sovereign md n„.'^ ^"'^ ""' •*« having placed 
« the proposition does n^a^rL By Ih^r °?T'- ^ «"^'''''" i"S 
affirmed to be within the authoritv ,Ia T°' ""= '""' « declared and 

Act or invested with iurisdta^n ,?' ''° ?*" """""^l « created bvtEl 

It.ia wholly a q-stiofo ttwa.L':rtWv' ".T'"^'^ "' 'hat dedii™ 

the country should arisc^id f^Tr wLicVn"o T'm"" '^«'''''"'^ P"""" of 
tainty, confusion and injury would rlsuTt "^ " «°°''' •"" ""S" ""oer- 

a .njga^j^ri™ :il*;«rr ttr ' --^ -' »--<> ^y Pamament with 
will over laws passed by the L„L° , ^"'T^ "^ exercising an ibitrarv 

consistent to su'pposo thJtXXiniTet-'" '"l"'^'- I'«oldS 
each legislative body. Parliament w^^M^ f'" ^^<^'>»sive authority uDon 
might be intended that anv aM clll l-^' ""^ "'"'«'• Power by whicH : 

trarily defeated. It is mucV mo^M^o^ t" "°'' "J""^'^ ™"'d t arb 

=/."h^Xol°r<;;;Si£^^^^^^^ 

--.declared ,y .he'^™i:tiS;:ih:—i-^^^^ 



-..«liJlltfJ,W»-,S,^_ 






15 

or declaring their dissent, and thereby settle all doubt and finally determine 
that question. It is not the personal will of the Sovereign or of the Governor 
Gyneral that they are authorized by the Act to signify. It is the sovereign 
will of the people declared by express authority of Parliament, and when so 
declared it must remain until Imperial enactment, or the legislative authority 
within the Dominion, chooses to alter it. 

It is said that the sections of the British North America Act relating to the 
allowance and disallowance of Bills only apply to such as the legislative body 
is empowered to pass. But this does not affect the argument.' It is still a 
question of legislative jurisdiction which the negative legislative power, as before 
stated, is_ authorized to determine. If the Act had not preserved this power 
the judiciary could not assume jurisdiction to say what was or was not wiihin 
the legislative authority, and to declare void a law which in the opinion 
of the Judges was ultra vires. The British North America Act is not declared 
to be the supreme law within the Dominion, not to be changed or altered 
except by the authority which enacted it. It is as before stated like all other 
statutes relating to the colonies subject to alteration in so far as it reh;tes to 
the Dominion and the government thereof by the legislative authority of the 
Dominion, restrained only by the prerogative power. It is a question of a 
political nature, growing out of a conflict between %islative authorities, and 
therefore not within the sphere of ordinary judicial inquiry or judicial control. 

Assuming for the sake of argument that if Parliament intended by the use 
of the word " exclusive" in the ninety first and ninety second sections of the 
Act, that all laws passed by either legislative body which in any way encroached 
upon the subjects of legislation so exclusively assigned to the other should be 
void, the legal tribunals would be called upon to ascertain and declare what 
law was void and what valid. Let us see whether we can be justified in 
implying such an intention in the absence of any express declaration to that 
effect. If that was the intention of Parliament the general rule of law which 
governs the courts in such cases is that '« when exclusive authority is given to 
one person to do an act it cannot be executed by another," and when the same 
law confers exclusive authority upon one person to do a particular act and 
upon another person authority to do some other act, each is confined to the 
execution of his own authority, and cannot, as incident thereto, execute anv part 
of the authority so exclusively given to the other. There is another rule that 
where a law directs a thing to be done in a particular manner, the direction 
must be implicitly followed. To this rule, however, there are some excep- 
tions. For instance, if the law relates to an authority already held and ex- 
ercised, and is only declaratory of another mode of executing some of such 
powers, any act done though not in strict conformity with the direction of the 
law, would not be void unless so expressly declared, or some strong negative 
words are used that necessarily render it void. The word " exclusive" in a 
law only declaratory of Lhe authority is not sufficient. But there is another 
reason why the word "exclusive" does not render a law void because ultra 
vires. Parliament has expressly stated for what purpose the word is used. In 



16 

the ninety.first section it is stated, " and for greater certainty, but not so as 
to restrict * * * it is hereby declared that the exclusive authority 
of the Parliament of Canada extends etc., etc." The word is not therefori 
used ior the purpose of rendering a law void not enacted strictly within the 
letter of the authority, nor in the vain hope of securing absolute certainty, but 
to enable each legislative body to ascertain with a greater degree ofcerlaimu, 
what may or may not be fairly and reasonably within its authority — 
55urely It is not used for the purpose of rendering the binding force of all law 
uncertain. Ihe unavoidable uncertainty in the interpretation of the law is 
enough, we should not unnecessarily add thereto. The last named rule then 
IS the one to be applied in the construction of the British North America 
Act. It IS evident that Parliament did not intend that all laws should be void 
not enacted strictly within the authority conferred, for the reason that in the 
subjects assigned to the Parliament of Canada, such only were selected in 
regard to which a uniformity of law was deemed requisite. But if the ninety- 
first and ninety second sections of the Act are construed according to the two 
first named rules, it must follow that in regard to many of the subiecta 
assigned to Parliament no uniform law can Lj enacted. In order to do so 
the authority must be exercised in con;unction with some of the powers 
expressly assigned to the Provincial Legislatures. In regard to ''Bank- 
ruptcy and Insolvency" t*e Dominion Parliament could not exercise authority 
over " Property and civil rights" as incident to the enactment of a uniform 
law upon the former subject, the latter being exclusively assigned to the 
Provincial Legislatures. It would be compelled to confine legislation upon 
that subject to declaring what persons should be subject to the Bankrupt and 
Insolvent laws, what acts by such persons should be deemed acts of Bank- 
ruptcy, and what acts by bankrupt or insolvent debtors should be deemed cri- 
minal, leaving the respective Provincial Legislatures to deal with the liberty of 
the person and subsequently acquired property of a Bankrupt whose estate had 
been subjected to compulsory liquidation by the law of Parliament. The power 
to make laws relating to Bankruptcy and Insolvency cannot be construed into aft 
authority to take away the right of a creditor who is neither Bankrupt or In- 
solvent, to pursue his remedy to recover his debt against either the person of 
his Bankrupt debtor or his future assets. What may be taken as incident to any 
subject under the last clause of the nineiy-first section of the Act is a question 
thai would necessarily lead to great diversity of opinion and endless legal con^ 
fiict, if It be left subject to judicial inquiry. 

Laws relating to " property and civil rights" are the most important and 
most sacred of all temporal laws by which a people are governed, and include 
more than all the other subjects named. The laws relating to bankruptcy 
and insolvency are so vastly inferior^ in importance, it cannot be contended' 
for a moment that authority to deal with the latter -subject can take with it> ' 
as incident thereto, the right to make laws upon the former subject j the minor 
right cannot merge the greater. The application then, of the two first men- 
tioned rules of construction, would entirely defeat the clear iatcution vf 
Parliament. 



17 

There is one case stated in the British North America Act, which renders 
a law enacted by either Legislative body null and void, viz : where a law 
passed by the Parliament of Canada is disallowed by the Sovereign, and 
where a law passed by any Provincial Legislature is disallowed by the 
Governor General ; then such disallowance being signified to the legislature 
or by proclamation within the time stated in the Act, the law in each case is 
declared to be null from and after the day of such signification. In regard 
to the power given to the Parliament of Canada to provide for a uniform law 
in the three Provinces upon the subject of property and civil rights, it is ex- 
pressly declared by the ninety-fourth section, that no law providing for such 
uniformity shall have any effect in any Province until the legislature thereof 
shall have enacted such law. Now it is not unreasonable to suppooe that 
in an Act of the peculiar nature of the British North America Act, if Parlia- 
ment had intended that laws enacted by either legislative body should in any 
other case be absolutely void and of no effect, it would have been stated. If 
the negative power is left to determine the question of legislative authority, 
that tribunal would not necessarily be bound by the construction which the 
judiciary might feel compelled to adopt, and would treat the sections named 
as declaratory only, and not in restraint of the general powers of legislation. 
Under this construction, it would be competent for the Parliament of Canada 
to deal with property and civil rights in the enactment of a uniform law on 
any of the subjects assigned to that body. But whichever construction may 
be considered most in accordance with the general rule for construing statutes, 
if there be any reasonable doubt of the intention of Parliament in regard to 
what laws should be void, or of the authority to determine what laws enacted 
are, or are not within the scope of the legislative authority, then I say 
public interest and public convenience require that such doubt should be 
given in favor of the legislative jurisdiction. By the legislative jurisdiction, 
I naean the negative power of the Sovereign and the Governor General, 
which Chief Justice Chipman in the case before cited said, was in the nature 
of a legislative power, retained for the express purpose of restraining and 
controlling the colonial legislatures. 

There is another reason why we should not give to the word " exclusive" the 
full legal force claimed for it. We must not mistake the real nature of the 
authority conferred by the British North America Act upon the Parliament of 
Canada and the Provincial Legislature. It is not an authority to enact laws. 
It is only an " exclusive" right and authority to the Senate and House of 
Commons for the Dominion, and the respective Legislative Councils and 
Auemblies of the Provinces to tender advice and consent to the Sovereign to 
enact laws, in regard to the subjects named in the Act. The Sovereign ever 
did by the legislative prerogative power enact all law for the United Kingdom 
by the advice and consent of the Lords and Commons, and for the Provinces 
by the advice and consent of the Legislative Council and Assembly. The 
Utter always had the right to give such advice and consent. No grant was 
therefore required lor that purpose. The Lieutenant Governor now, as for- 
merly, assents to Bills passed by the Legislative ' ^ncil and An^jmbly in the 



18 

name of the Queen in the same manner as the Governor General by authority 
of the fifty-fifth and ninetieth sections of the Act. 

In Cooley, on Constitutional Limitations, it is stated " where by the theory 
of any government, complete sovereignty is vested in the same individual or 
body to enact law, any law enacted could not be void, but if it conflicted with 
any existing constitutional principle must have the effect to modify or abro- 
gate such principle instead of being nullified by it. This must be so in Great 
Britain, with every law not in harmony with pre-existing constitutional prin- 
ciples." ^ This is an admirable illustration of the law making power under the 
British Constitution. Let us see how far it is applicable to the Dominion 
under the British North America Act. The same sovereign authority enacts 
all law for the United Kingdom, the Dominion, and the Provinces. In exer- 
cising the legislative prerogative power of enacting laws fur the United King- 
dom, the Sovereign is governed by the advise and consent of the Lords and 
Commons ; for the Dominion, the Senate and House of ( Jommons ; for any 
Province by the Legislative Council and Assembly. Though the advice and 
consent is tendered by "exclusive" right and authority by respec;ive legis- 
lative bodies of the Empire, the sole enacting power is centred in one and 
the same sovereignty. Hence whatever law is enacted by that sovereign 
authority either modifies or abrogates any pre-existing constitutional principle 
or law relating thereto. The Legislative prerogative pouer of the Sovereign 
can no more be subject to judicial supremacy when enacting laws for the 
Dominion or any Province, than when in enacting' laws for the United Kingdom. 
If we give to the word " exclusive" the full force claimed for it, it would 
carry us farther than any would be willing to go. The Lords and Commons 
by the British North America Act advised and consented that the Queen 
should^confer upon the Senatp and House of Commons for Canada the "ex- 
clusive" right and authority to advise and consent to the enactment of laws to 
be m force within the Dominion, and i?t a legal sense these two Houses of 
Parliament are as much excluded from the right to tender that advice and 
consent as the Legislative Councils and Assemblies in the respective Provinces, 
and cannot of strict legal right resume it. Therefore if a law enacted bv the 
advice and consent of the Legislative Council and Assembly or Senate' and 
House of Commons is subject to judicial supremacy, because repugnant to any 
" exclusive" authority conferred, the law enacted by the advice and consent 
of the Lords and Commons, alike repugnant, must also be subject to judicial 
supremacy. This is the fair legal result of the claim on behalf of the judiciary, 
not only to declare what the law is, but to restrain the sovereign authority 
which alone can declare what shall be the law. There are certain acts per- 
formed by virtue of the prerogative sibject to judicial inquiry, but that of 
enactinrr laws is not one of them. There is nothing in the British North 
Amfcuiou Act that can be construed to render it so subject. On the contrary, 
the sovereign prerogative to enact the law in the fullest sense, to dissent frrm 
and declare null a law passed by either of the legislative authorities within 
the Dom-inion,_is expressly preserved and confirmed by Parliament. If Par- 
liament had said it shall not be lawful for the Queen to enact laws with the 



19 

advice and consent of tho Legislative Council and Assembly of any Province, 
except upon the subjects assigned to each, and had not preserved the negative 
power for the purpose of detorminintj what was within the subjects so exclu- 
sively as^signcd, there miu;ht he some force in the claim put forth on behalf of 
the judiciary to assume tliat jurisdiction. 

None will deny that it is most desirable for each legislative body to confine 
its legislation to the subjects assi.ned to it by the British North America Act, 
6 far as it is possible to do so, consistent with the {"general .^interest of the 
Duminion, or of any Province. But it would be very unwise in the c om- 
mencement ol our confederate system of government to surround the consti- 
tution with a legal buiiil rendering it unable to yield to any public necessity 
or public pressure, save only that capable of rending it assunder and reducing it 
to its original fragments. It is not a sufficient answer to say that a remedy can 
be found to meet sucli a difficulty in an application to the Imperial Parliament. 
The people of the Dominion, through the Legislative authority, always did, and 
do now, possess the power within themselves necessary to effect any change they 
may deem desirable in the constitution or laws, and no other power within the 
constitution other than the negative power can prevent them. 

The Constitution of the United States is a grant of executive and legislative 
and judicial powers and authority to these three departments of the Govern- 
ment organized under its authority, with certain specified subjects upon which 
no law is to bo enacted, and reserving all other powers not expressly granted. 
It provides the mode of appointing and electing all officers of the state, and 
among a great variety of provisions an article is inserted declaring that the 
Constitution is the supreme law of the land. It ma*kes special provisions in 
regard to the mode of proposing and effecting amendments to the constitution 
by the people through delegates elected for that pupose, and so depriving the 
legidaiive axUhonty of any such power it expressly requires that the judiciary 
shall determine all questions according to the authority as declared by the 
constitution. The oath of office taken by the Judges before entering upon 
their judicial duties, compels them to decide every question by the standard 
of the constitution as the supreme laiv. The legislature under that constitution 
does not represent the people in the same sense in which Parliament represents 
the people under the British constitution, nor in the sense in which a colonial 
legislature represents the people under the colonial constitution. A rule of 
construction therefore applied to the former in regard to its restraining powers 
must not be applied to the British North America Act That Act does not 
contain a grant of powers from the people to the legislatures, nor from the 
Imperial Parliament acting on their behalf to the legislatures, for the reason 
that Parliament does not act in its dealings with the colonies in a representa- 
tive capacity, but as a sovereign power. The people of the colonies are not 
repre^ented in Parliament. But the action of Parliament in regard to the 
colonies is governed by the same principles, as if it acted in a representative 
capacity, and therefore subject to be altered or repealed by the legislative 
authority of the colony to which it relates, in so far as it affects the internal 



interests of that cfW«hyr The theory of the British Constitution is that 
Parlmment reprw-nts th« y ^ple in the fulh .t possible sense, and can do 
whatever the peopl. tiD^mseives could do were they personally present. 
Parhament can add to or Ink^ from the constitution whatever it deems proper 
The law enacted by the i,over<.ig« with the advice and col nt of the two 
Houses of Parliament is the sup,. me law. The colonial legislature in like 
manner represents the people and may add to or take from the Colonial Con- 
stitution. AH laws enacted by the Queen, (represented by the Governor) 
with the advice and consent of the Legislative Council and Assembly i. the 
supreme law within the Colony. ^ 

The seventeenth section of the British North America Act says, " there shall 
be one Parliament for Canada," meaning for the people of CaLda. Ne ther 
the term "Parliament ' in the ninety-first section, nor t'he term " legislature'Mn 
the ninety-second section is used to designate a body distinct from, but as a body 
representing he people, and must br- read in the same sense a if the words 

^tAl7 T Y'^'^'f r*^ '^' ""^^' *' ^^^ P-P^« - the IgislaTu;' 
had been used. Inasmuch, therefore, as all the powers of legislation men- 
tioned in the Act were possessed before and at !he time of its enactment 
these so, as a., not to be taken as granting powers already possessed nor' 
n »n arburary u. . ne as restraining the exercise of such powers. Whatever 
language IS used fo express it, it must be taken as declaratory onh in pointine 
out for the purpose of greater convenience, the particular subject/ upon which 
«n?h"7 ; *k'°"^^ e^ch legislative body, are to exercise the WisTat ve 
authority, to be controlled only by the negative legislative power ^of the 
Sovereign. In reading the Act then we must not treat Parliament or he 
legislature as distinct from the people, but like all statutes involvinTthe rLhtJ 
of the subject or the public good, it must receive the most full^and liS 
construction the language and intention of the legislature will admit o and 
best to attain that end. No man will be found to say that the pubHc interests 
or the rights of the subject will be best promoted b/ the judiciary exercS 
jurisdiction to declare an act - i the legislative authority void, tWeby ren? 

thfCT'-UuX^^^'''^ ^"^^^ °^ ^" ''''-'' ^''-- All must agree hat 
both objects will be best attained if that question be determined as heretofore 
by the negative authority, and the binding force of the law, when enacted 
rendered certain. Certainty in the binding character of the awsTs a maUer 
of the greatest importance in every well governed country. The iudidarv 
ought not, therefore, to attempt to restrict the powers of Parliament ir ofTe 

rstfof'tr' T'^«\^«-^ ''^^^-ch restriction is necessary in the n! 
terests of the people, or the liben. ;f the subject. 

senllt^ves7n 'P^ r ' ^^^^ ^^^^^^'^ '°^ ' ' ^ l^o^^^ ^'^nnot rely upon their repre- 
sentatives in Parliament to protect <h.:.. p^v.nal liberties, their "property 
and civil rights" from unjust or oppr ■ ,. e -.ws. but . . compelled to flee o 
thejudicial authority for protection, depc.d upon it despotism reigns Zat 

sTitutbn -^^ '''"''^' *'°'''^''' '' ^'' "*^ ^^^^^g PJ^<^« i'^ °"r Con- 



I 



. 



31 

aJr^^A r^'*""! '•*^'*"'^. °f *^* ^™P"''' ' I'^rliamet.t will be as well 
gUMded irom intrusion, and the interests ot the nation as well nroterted in 

^l llT^ °^^ ^T'" »" and Queen's Privy Courcil. as in the^koep n. of 
exercise or he royal veto upon the act of the Parliament of Canada, the con! 

ml n?r J°' °? T-'"'' °^ ^ J"^'"^^ ^«^°- '^'he authority of he "a Hu- 
raeut of Canada and the interests of the Dominion will be as carefully watched 
over and preserved from all undue interference by His Exc 'uency th 

?ZnT V"°''' P' '"-^ '^' 9".f 1'^ P"^y ^^^°""^'l for Canada, as by the lotl 
rA.?n f" 1*"' P'^?^"^^ .«°tif that high authority in the Dominion .ind m 
reasor for the exercise of the Royal veto by the Governor General upon tlu Ac 
of the . ^"ovincia Legidature, the British North America Act requifes „o /.t 
veto to be exercised b;r riie Courts. requues no legal 

No Provincial Court can arrogate to itself authority to declare void any 

or tCr H ^ '^' ^'%^' '^''^. '}"' ''''''''' °f '^' two Houses of Parli une7c 
or the two Houses of a Provincial Legislature, without assuming a jurisdiaio, 
and responsibility neither called for nor justified by the constitution. t is 

«n?K. •! % !u D ^"P'^'^Tr ^^'^'^"^^^^ ^^y by its legislation override the 
authority of the Provincial Legislatures. The negative legislative power of 
the Sovereign oyer the Parliament of Canada (which has .vfr been ex ed to 
protect the weak and maintain the right) will not permit any encirchment 
injurious to the Provincial authority, or to the interests of the people of any 
thrr* J"''^'' '^1 ^'°r e«^ ^^^y ^^^^b- re\y upon each other I pro e"^ 

un! IdT I'' ^ Zf '' '^''' "^"'"^^ ''''"''''' '^' letter not created bu 
united by the confederate compact. Their representatives constitute the 
Parliament of Canada, and it must be that the safety and permanency of the 

rTZ ir' ^'P'"'^'' 'T^'""'!^ ^/ '' ''' "P'^'^ the protecfion affoid/d to he 
rights and powers secured to each of the several Provincial governments It 
18 asking too great a sacrifice of the legislative powers of the^ople to I'm 

JonTr' "^ «uch negative jurisdiction in the judicial tribunals, in addi- 
tion to the negative legislative power of the Sovereign. 

rlw'7 ".°f ^^^"'.^^'^ ""^'^^ P'^ovides a constitutional system of government 
combined with a direct executive responsibility, the judiciary is never ZZd 
upon to say what Parliament is or is no^ authorized to do, but Simply to n 
terpret and determine upon what Parliament has done. The SLge of 

t?^hat nfTp^^^"'" ^\'^ 'PP^f^ '° °"^ confederate constitution, as if was 

hJ ni • ^' Province at the time h. gave utterance to it If it be ^sked how 

L H^^ 7k .'*'' 'Pf ^ ''''^'' ,^ constitution where the legislative authority 

w divided between two several bodies, each possessing certain desiccated 

LTci T"".: ^^V"''l'^ ^^' '^' °°^ ^^ ^'^^^'^ be ifconflict w th'alaw 
,Sw- \* '• °'\''' '^' ""^^^"^ '^ P^«^"- '^'be question of legislativ" 
junsdiction having been mce settled by the authority before point! d out! 
there can be no good reason assigned whv the rulfiapnUp^ f^AiffL^^. -«m,-' 
enacted by the same legislative body, should not be appifed Wefa^^rpX! 



22 

ence given to that law which is found to be last in order of time. If it should 
happen that any public inconvenience is occasioned by the passage of laws 
subsequently found to be in conflict, the legislative authority is, and always 
will be, the best adapted to remedy the difficulty, as was done in regard to 
the law relating to the Central Bank before referred to. If it be asked what 
rule is to be applied if an action should be brought in the Courts of this Pro- 
vince upon a contract made in Nova Scotia, if the hiw of Nova Scotia, by 
which it was claimed the matter in dispute should be determined, was found 
to be in conflict with the law of the Dominion, then, I think, as there is 
nothing in the British North America Act to restrain the Courts, the Comity 
should be extended to the law of Nova Scotia, and the cause determined 
according to the law in that Province ; that in turn we may have justice ad- 
ministered to us by the Courts in Nova Scotia upon contracts made here 
according to the law as in New Brunswick. 

The necessity for the adoption of this rule by the legal tribunals is obvious, 
that the conflict of law, which must inevitably occur, may be rendered as little 
burdensome and as little uncertain to the people of the Dominion in the prose- 
cution of their individual rights as the constitution will admit. 

There is nothing in the view which I have taken in regard to the supremacy 
of the colonial legislature within the colony, that derrogates in the slightest 
degree from the supreme legislative power of the Imperial Parliament over 
the colonies or over the Dominion of Canada. That Parliament may, if it 
choose, deprive the sovereign of the power to assent to a Bill passed by a 
colonial legislature repugnant to an Imperial Statute, as it did in the case of 
the Act 3rd and 4th Vic. for the Union of the two Provinces of Canada. It 
may enact any law upon any subject and declare that it shall be in force and 
binding upon the inhabitants of the Dominion. It may, if it will, repeal the 
Act of Confederation and all other laws in force in the Dominion. In short 
destroy all law and ordej and reduce society to a state of chaos. The sovereit^n 
is possessed of the same constitutional right to refuse to enact into a law any 
Bill passed by the two Houses of the Imperial Parliament, as any bill passed 
by the two Houses of the Parliament of Canada or the two Houses of any 
Provincial Legislature, and if the Lords and Commons of Great Britain should 
pass a Bill to overrule any law enacted or in force in the Dominion, Her 
Majesty may withhold Her assent, and protect from the power of the Imperial 
Parliament the rights of the people and legislature of the Dominion. The 
propriety of doing so might be questioned ; not the constitutional right. And 
when a Bill is passed by the Senate and House of Commons of Canada or 
by the Legislative Council and House of Assembly in any Province, repugnant 
to an Imperial Senate, relating to the Donunion, the Queen may either enact 
into a law or withhold Her assent, and as before the propriety of the act in 
either case may be questioned, not the constitutional right. 

But we need not be alarmed at this sovereign power. Thj wisdom of 
Parliament W/'.lbend its future policy towards the Dominion in ntjite a different 
direction. The Imperial Parliament will not be likely to take the trouble of 



t 
c 



t: 

s 

p 



II I 



23 

legislating for the Dominion unless desired by the legislative authority thereof 
Witt Si 1 ' ^"'- '^"''^'"'"'^ '^' ^^^^^'^^^^ °f British North Amer^^rf LS 
r l5^' 1 r'"''1 P°^''^"' ''''^'''' ''' ^^"'i^^^i^l li'^its, and will W it to 
Lh ifvv f .r'^°'^'^ '' ^^'P^ ^"^ '^^'''' ^'^ internal policy and iJesc ibe 
W t .' 'i ' ^•'^^^•""^^'^^ °f the inhabitants thereof, as may fzom time to 
time be deemed necessary, unrestrained by any imaginary power in any sub 
ordinate department of the government. ^ ^ ^ '^ ^"'"^^^ "^ "^^Y si*b- 

Itisa poUtical axiom that the judiciary power of any well constitutpd 
flZX7\ '"^? ^' —tensive with the legislative powl, and tust be 

ana laws. While we admit the truth and force of this axiom we must not 
orget the vast difference there is between interpreting and administeX the 

ioTpretJbr^S;^^'^'-"^^ f '^T ^'^. --k- authorityTdfrfha 
Kmeit .nd the VwfH'' exclusively within the province of the Houses of 
railiame^nt and the two Houses of the respective Provincial Legislatures. 
The legislative power is always the supreme and the creative power ia anv 

ltl7:TfT'''''^T. '^'^^ j^^^^^^^l i^ ^ P°-«^- <=reated by ani ubor^ 
d mate to the legislative. It does not appertain to the created power to make 

the law "k' Z ty ■''' '^'^ ^T'"^' '' "^^^'^P-^"^^ and'admidst" "g 
n nV ; -A ^ i'^'^'^'^^y can declare a law enacted by the legislature 

?ot:lp7be'rbir"r^^v°^^^^^ ^^^^.^^■^^^- p--' -^ ^^^z 

^uow capable of being enforced in opposition to the legislative authoritv 

the'abilkv r ^' ^'"""^i^^ ^""^'"'''y "^"^^ ^^P--l "P- the legisLtre for* 
United S^^^^^^^^ ''' ^'T'- ?''' jurisdiction in the judiciary of the 

necessary under^t^^^^^^^ ''""^'''f ^^ '^' constitution and ^deemed 

?o accent T lU t ^ '^^ Tu"^ °^ government the courts were bound 
because he Sunrlr. T ''ft u ^' '"^ ^""^''''"^ °"^^ '^' ^tate Legislatures, 
government ^^1^7, '^r''^'^^ ^^ '^'^ ^^ '^' ^"'^'^ '^ 'hf national 
fourtTutttlvhTr^ l^^^^^ '^'' power is given by the constitution, the 

'o^e Cnt ^m^ r"" "''''''''^ ''' '^^^'^"^^ ^'^ "PP^^^tion to that of the 

goveinment. Whensver Congress asserts its authority the corrt must yield 
whatever the opinion of the Judges may be of the constitut i 1 TiAt^ It' 
must submit to the power without the aid of which it cannot enforce its 

C^nrT T' ^tJ^"^"' ?^ ""^^ '^'^'''^ the will of the nat onal Le4 la 
no n. tl, "^- .^h^! J^^"«diction in the judicial-- is admittedly a weak 

point m the constitution, because it cannot always be enforced, and it renders 
the bmding character of the laws uncertain. It can only be remedied by in 

ot government, v z a negacive legislative power in the Executive Head of 

uLT^teTb^^^^^ ''rr^ ''^'''''^'''' ^-^ °f thf modes 

suggested by Chief Justice btory), and the principle of direct Executive res- 
ponsibihty m the national government. ^veouave res 

; J„^!_?"_'^!'^ North America Act does not confer this jurisdiction upon the 
jiuauax^-, nor could it be enforced if it did. The legislative authoritv of the 
Proymce always had, and still has the power to Constitute ^urls for the 



24 

junsdiction as it may choose to confer "°"'^ ""* '"* 

?rir„:^"trat-^^ 

department, of the government is bound to give effect t^^^^^^^ " ^^"' ^^'^^^^'-^ 
of the judgment o a^y ProvS^^ a good ground for the reversal 

constitution, iould yLd a Sn'^mV .w'^o'ttr '" "'''rf %>» 'he 

and provide the neceLry autho'-Sy' «o "nt he judgrtroAhf^^^^^^^^^ 
be put into exprntinn Rill if ,uJ • j- • • . J""6"*"=nis 01 tne (courts to 

au,L,y shonTd^ers; .^ llnU t:Tat" : ''dXed'trf ■?"•" 

authority, M-e need not bp <»,irnr,-=o;> if .u i • i "^cmrea by the legislaUve 

of ,he cL,ry. rhiTdVtd'crra n dt S^ t'/S "r 'L'"' '•?""" 
u. adm,niB,..a,ion wi.hou. any question of the .mWrS^ihtl'i r^rd" 
lea.mg ihul lo be determined by the only .tt,hori.> knownlo t^o cSi 



to abolish 
with such 

ted by the 
stration of 
lorn of the 

judiciary 
any act of 
chich they 
1 the legal 
:• original 
dual will 

power of 
sign head 
aijd every 

f Appeal 
luire the 
lacted by 

in order 

reversal 
ivith any 
)bey the 
I created 
le Court 
itutional 
It in the 
It seems 
. firstly, 
rinciple, 
!i autho- 
luse the 

If the 
though 
Quid be 
ion had 

to the 
Fudges, 
lurts to 
uch an 
islative 
iterests 
it upon 
snated, 
olonial 



25 

'k 
constitution and the one provided by the Act for that purpose This is a 

jurisdiction peculiar to the judiciary of the United Stales under \\ie\x constitution, 
in which the prerogative power as known to our constitution forms no part. 
The written constitution is 'he prerogative authority through which the people 
have declared their will, which is paramount to that of their representa- 
tives expressed in any law. This high authority is not claimed by the 
Judges by virtue of judicial supremacy, but as administruiors of the public will. 
This judicial jurisdiction is a theory altogether foreign to the spirit of the 
British constitution, by virtue of which the sovereign declares th*? will of the 
people in every law enacted in regard to the subjects embraced therein. 
Hence when the Judges in any Province claim to exercise this high authority 
by virtue of judicial supremacy, they act not as administrators of the public 
will but as restrainers of that will, declared by the only authority through which 
the people speak. 

In conclusion, to use the language of Blackstone, " what Parliament does 
no pow^r on earth can undo," and so what the Parliament of Canada does or 
the Legislature of any Province does, no power within the Dominion, save 
Ihfc lygislative, can undo or successfully resist. 



JAMES STE ADMAN. 



Fredericton, Februarv, 1873.