APPENDIX No. 5. (See Page 213.) Of the relation of judicial power to unconstitutional legislation according to the constitution of the Canadian Dominion. In connection with the subject, it will be useful to consider the present constitution of the Canadian dominion or union of colonial provinces. It dates from 1867, being the act of the parliament of Great Britain, known as "the British North America Act, 1867." This instrument is thus both imperial legislation and a colonial constitution. The legal results of thirteen years of constitutional history are exhibited in a valuable work by Mr. Doutre, Q. C., of Montreal. It is entitled: "Constitution of Canada. The British North America "Act, 1867; its Interpretation, etc., by Joseph Doutre, Q. "C., of the Montreal Bar. (Montreal, 1880)." The following extracts from the preface are of great interest to common law jurists in all parts of the world. "The design of this work is not to be a commentary upon "the text of the Federal compact, but, to bring together, "by the side of the text, the decisions of the courts, with "the dicta of judges and statesmen; and to discover the "principles which will aid those engaged in framing fed❝eral or provincial laws, and the legal profession generally "in the interpretation of the constitution of the country. "Previous to The British North America Act, 1867, "the provincial courts did not consider they possessed the "power of enquiring and deciding whether the laws of "their respective legislatures were constitutional or not. "Occasional attempts were made to test the validity of statutes, but they were ineffectual in their results. It "has been and is quite different under the Federal act. "The Supreme Court of Canada and the privy council in England, have both concurred in recognizing the right, 66 "assumed by the provincial courts of original and appellate "jurisdiction, to pass upon the constitutionality of the laws "enacted by the provincial legislatures and the Parlia"ment of Canada. This was anticipated by the framers of "the act, as appears by the debates in the House of Com66 mons. 66 'On the 4th of March, 1867, when the bill was under "discussion, in the Imperial Parliament, Mr. Cardwell "said: 'As matters now stand, if the Legislatures of "Canada acted ultra vires, the question would first be "raised in the colonial law courts, and would ultimately "be settled by the privy council at home.' "Important decisions of the privy council, of the Su"preme Court of Canada, and of the various provincial "courts, have been already reported, pronouncing upon the "validity of the Dominion and Provincial statute laws, "and, on many points settling the principles that should "be applied in the construction of the confederation act, "and defining the limit and scope of Federal and pro"vincial legislation. It may be thought by some, inadvisable, to have noted "so many decisions of the Federal Court of the United "States, but it will be remarked, how frequently our judges "have been compelled, in the absence of other precedents, "to look to the decisions of the highest court of that Con"federacy; for, that Republic also consists of a Federal "Union of separate sovereign States with a written consti"tution prescribing the sphere of action of the central gov"ernment and of the local governments; and this neces"sarily required continual appeals to the judiciary to "define, determine and settle, the line of demarkation "between these two jurisdictions. Several cases have been "reported more at length than many may, at first sight, "deem expedient or desirable for a work of this kind; "but it must be borne in mind that these are recent and "important cases, involving many issues of great moment, "which have been discussed with great ability by the "judges of the court of last resort in this Dominion. "But, for those who do not lose sight of the fact that we "are on the threshold of a new system of national exist"ence, and from want of an experience that time alone can “give, are deprived of any great number of judicial de"cisions, no apology will be necessary. "The Quebec resolutions of 1864, and the Constitution of "the United States have been added, for the reason, that a "ready reference to them is useful, if not necessary, in the "study of the constitutional act of Canada." APPENDIX No. 6. Letter of Richard Dobbs Spaight to James Iredell. PHILADELPHIA, August, 12th, 1787. DEAR SIR: * * * The late determination of our judges at Newbern, must, in my opinion, produce the most serious reflections in the breast of every thinking man, and of every well-wisher to his country. It cannot be denied, but that the Assembly have passed laws unjust in themselves, and militating in their principles against the Constitution, in more instances than one, and in my opinion of a more alarming and destructive nature than the one which the judges, by their own authority, thought proper to set aside and delare void. The laws I allude to are the tender laws, and the laws for increasing the jurisdiction of the justices of the peace out of court; the latter they have allowed to operate without censure or opposition; the former they have openly and avowedly supported, to the great disgrace of their characters. I do not pretend to vindicate the law, which has been the subject of controversy; it is immaterial what law they have declared void; it is their usurpation of the authority to do it, that I complain of, as I do most positively deny that they have any such power; nor can they find anything in the Constitution, either directly or impliedly, that will support them, or give them any color of right to exercise that authority. Besides, it would have been absurd, and contrary to the practice of all the world, had the Constitution vested such powers in them, as they would have operated as an absolute negative on the proceedings of the legislature, which no judiciary ought ever to possess, and the State, instead of being governed by the representatives in General Assembly would be subject to the will of three individuals, who united in their own persons the legislative and judiciary powers, which no monarch in Europe enjoys, and which would be more despotic than the Roman Decemvirate, and equally insufferable. If they possessed the power what check or control would there be to their proceedings? or who is there to take the same liberty with them that they have taken with the legislature, and declare their opinions to be erroneous? None that I know of. In consequence of which, whenever the judges should become corrupt, they might at pleasure set aside every law, however just or consistent with the Constitution, to answer their designs; and the persons and property of every individual would be completely at their disposal. Many instances might be brought to show the absurdity and impropriety of such a power being lodged with the judges. It must be acknowledged that our Constitution, unfortunately, has not provided a sufficient check to prevent the intemperate and unjust proceedings of our legislature, though such a check would be very beneficial, and, I think, absolutely necessary to our well-being; the only one that I know of, is the annual election, which, by leaving out such members as have supported improper measures, will in some degree remedy, though it cannot prevent, such evils as may arise. I should not have intruded this subject upon you, but as it must certainly undergo a public discussion, I wish to know what is the general opinion on that transaction. RICHARD DOBBS SPAIGHT. * * *Life and Correspondence of James Iredell, by G. J. McRee, Vol. 2 pp. 169–70. APPENDIX No. 7. (See Page 283.) Wednesday, March 21, 1787. Congress assembled: Present as yesterday. On the report of the Secretary of the United States for the department of foreign affairs, to whom was referred a letter of 4th March, 1786, from Mr. J. Adams, minister plenipotentiary of the United States of America at the court of London, together with the memorial of the said minister, dated the 30th November, 1785, and presented by him on the 8th of December following, to his Britannic Majesty's Secretary of State; and the answer received by Mr. Adams to the said memorial, and contained in a letter from the said Secretary of State, dated at "St. James's, February 28, 1786," and other papers accompanying the same: Congress unanimously agreed to the following resolutions: Resolved, That the Legislatures of the several states cannot of right pass any act or acts, for interpreting, explain ing, or construing a national treaty or any part or clause of it; nor for restraining, limiting or in any manner impeding, retarding or counteracting the operation and execution of the same, for that on being constitutionally made, ratified and published, they become in virtue of the confederation, part of the law of the land, and are not only independent of the will and power of such legislatures, but also binding and obligatory on them. Resolved, That all such acts or parts of acts as may be now existing in any of the States, repugnant to the treaty of peace, ought to be forthwith repealed, as well to prevent their continuing to be regarded as violations of that treaty, as to avoid the disagreeable necessity there might otherwise be of raising and discussing questions touching their validity and obligation. |