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The reception of English law as a modern legal problem 1977

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THE RECEPTION OF ENGLISH LAW AS A MODERN LEGAL PROBLEM By JOAN SNAPE MARSHALL B.A. , LL.B., University of B r i t i s h Columbia, 1951, 1952 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS i n the Faculty of Graduate Studies (Faculty of Law) (C) JOAN SNAPE MARSHALL We accept this thesis as conforming to the required standard The University of B r i t i s h Columbia May, 19 77 Joan Snape Marshall, 1977 In presenting this thesis i n p a r t i a l f u l f i l m e n t of the requirements for an advanced degree at the University of B r i t i s h Columbia, I agree that the Library s h a l l make i t f r e e l y a v a i l a b l e for reference and study. I further agree that permission for extensive- copying of this thesis for scholarly purposes may be granted by the Head of my Faculty or by h i s representatives. I t i s understood that copying or p u b l i c a t - ion of this thesis f o r f i n a n c i a l gain s h a l l not be allowed without my wri t t e n permission. Faculty of Law The University of B r i t i s h Columbia 2075 Wesbrook Place Vancouver, Canada V6T 1W5 May 10, 19 77 i i ABSTRACT The reform of English law received i s a matter of some importance today when the volume of law, p a r t i c u l a r l y statute law, has created d i f f i c u l t i e s i n determining what the law i s i n respect of a p a r t i c u l a r f i e l d of i n t e r e s t . The reception of English Law problem i s stated within the B r i t i s h Columbia framework, but i t i s neither new or unique to B r i t i s h Columbia. I t i s timely, i n that the Courts have occasion to re f e r to i t with reasonable frequency on matters of some concern to in d i v i d u a l s and to the pu b l i c generally. I t i s timeless, i n that i t i s a factor i n the founding of the c o l o n i a l empire of England and the evolution and development of colonies as independent nations. The primary consideration i n this thesis i s to state the problems r e l a t i v e to reception and to present t h e i r r e s o l u t i o n by the Courts and by academics. What emerges i s a pattern of fragmentary statement without d e f i n i t e parameters. Much of what i s presented i s r e l a t i v e not only to B r i t i s h Columbia but also to any other common law j u r i s d i c t i o n where reform has not already been accomplished. History i s one parameter, but the problem i s not h i s t o r i c a l . The primary thrust of the reception problem i s to determine the impact of English Law i n any j u r i s d i c t i o n and what English Law remains i n force there. This i s a modern l e g a l problem, complicated i n Canada by the complexities of the Federal j u r i s d i c t i o n . Part I states the questions that have arisen as to i i i reception and the l e g i s l a t i v e h i s t o r y of the Province of B r i t i s h Columbia. Part II considers the reception of English law, as i t has been developed by j u d i c i a l reasoning and the i n t e r p r e t a t i o n of academics. P r i m a r i l y , cases which a f f e c t B r i t i s h Columbia have been considered, p a r t i c u l a r l y when they are at variance with the generally accepted p o s i t i o n . The problems which remain unanswered and the c o n f l i c t s presented i n the various decisions are postulated with a view to e s t a b l i s h i n g the need for l e g i s l a t i v e reform. Part I I I considers and summarizes the reform of the English Statutes and the reforms which have been effected i n other j u r i s d i c t i o n s . Their achievements and methods are referred to i n order to assess the options for reform presented and t h e i r value as authority i n another j u r i s d i c t i o n . Much scholarship has been devoted to this problem i n other j u r i s d i c t i o n s , p a r t i c u l a r l y i n A u s t r a l i a and i n A f r i c a . In A f r i c a , emerging nationalism has focused the attention of the l e g i s l a t u r e s on the problems as s o c i a t - ed with reception which are not generally p o l i t i c a l l y a t t r a c t i v e . R e l a t i v e l y l i t t l e has been done i n Canada to assess the impact of English Law and to e f f e c t such reform. The Conclusion recommends reform l e g i s l a t i o n . i v TABLE OF CONTENTS Part I - Introduction PAGE I. THE RECEPTION PROBLEM TODAY 1. The General Impact of English Law i n B r i t i s h Columbia 1 2. Problems of the reception of English Law 4 3. Reform of Reception Provisions 6 4. Prospectus for Reform 7 I I . PROVISIONS FOR CONTINUITY OF LAW IN BRITISH COLUMBIA 9 1. L e g i s l a t i v e h i s t o r y of B r i t i s h Columbia (a) Vancouver Island (formerly Vancouver's Island) 9 (b) B r i t i s h Columbia 1858 - 1866 12 (c) Stickeen t e r r i t o r i e s 15 (d) The United Colony of B r i t i s h Columbia 1866 - 1871 15 (e) Union with Canada 16 2. Special l e g i s l a t i v e provisions for reception i n B r i t i s h Columbia 17 FOOTNOTES (Part I) 19 Part II - The Reception of English Law I I I . GENERAL RULES FOR RECEPTION AND APPLICABILITY OF ENGLISH LAW 24 PAGE I I I . GENERAL RULES FOR RECEPTION AND APPLICABILITY OF ENGLISH LAW 1. The Royal p r e r o g a t i v e 24 2. How i s E n g l i s h Law received? (a) By conquest 25 (b) By settlement and p l a n t a t i o n 28 (c) By charters and s t a t u t e s 29 (d) By extension of the boundaries or by s e p a r a t i o n from a Colony 31 (e) By establishment of Courts 31 3. L e g i s l a t i o n i n force p r o p r i o v i g o r e (a) Background 32 (b) C o l o n i a l sovereignty before the Statut e of Westminster, 1931 33 (c) C o l o n i a l sovereignty a f t e r the S t a t u t e of Westminster, 1931 35 4. What parts of E n g l i s h Law are received? (a) Statutes 38 ( i ) Is there a c u t - o f f date? 39 ( i i ) Which E n g l i s h Statutes are received? 39 (b) Common Law 40 ( i ) Is there a c u t - o f f date f o r r e c e p t i o n of common law? 41 ( i i ) J u d i c i a l Development l i m i t i n g general acceptance of common law 43 5. What s p e c i a l p a r ts of E n g l i s h Law are received? 49 ( i ) Equity 49 ( i i ) E c c l e s i a s t i c a l Law 52 ( i i i ) L e g i s l a t i o n other than Acts of Parliament 53 ( i v ) C o n s t i t u t i o n a l Law 54 (v) Admiralty Law 56 ( v i ) Law Merchant 5i8 ( v i i ) P r a c t i c e and Procedure 58 IV. JUDICIAL INTERPRETATION AS • TO RECEPTION OF ENGLISH STATUTE LAW • - - - •••• • 1. A p p l i c a b i l i t y (a) Time to test a p p l i c a b i l i t y (i) i n England ( i i ) i n the Colony (b) What i s a statute of general application? (i ) a law of l o c a l p o l i c y 2. Local circumstances i n the Colony (a) D i f f e r e n t p h y s i c a l and s o c i a l conditions (b) Is the double negative phrasing as to l o c a l circum- stances a decisive parameter for B r i t i s h Columbia? (c) I n a p p l i c a b i l i t y due to procedural problems (i) a p p l i c a b i l i t y within the e x i s t i n g l o c a l machinery ( i i ) applicable but dormant ( i i i ) second substantive provision and procedure inap p l i c a b l e 3. Problems inherent i n a Federation (a) Is the Province of B r i t i s h Columbia j u s t i f i e d i n providing for a matter of Federal j u r i s d i c t i o n on the argument that the Federal government, having j u r i s d i c t i o n , has not made provision? (i ) Is the case of an English act i n force by v i r t u e of the reception statute d i f f e r e n t ? (b) Is a v a l i d law i n force i n B r i t i s h Columbia before Federal l e g i s l a t i o n was enacted, and superseded by Federal l e g i s l a t i o n , revived upon repeal without re*-=enactment by the Federal authority? (i ) An Act i n force by the operation of the . English Law -Act ( i i ) Ah"Act i n force as p r o p r i o r vigore l e g i s l a t i o n ; r v i i PAGE (c) Limitations of e x t r a - t e r r i t o r i a l i t y 82 (i) H i s t o r i c a l Background ( i i ) Provinces l i m i t e d as to e x t r a - t e r r i t o r i a l i t y , before and after 1931 83 ( i i i ) Federal P r o v i n c i a l c o n f l i c t 85 4. The role of the Courts (a) J u s t i f i c a t i o n (b) Are the Courts the appropriate body to provide for the matter? FOOTNOTES (Part II) Part I I I - Statute Law Revision and L e g i s l a t i v e Reform V. IMPERIAL STATUTE LAW REVISION AND REFORM 1. H i s t o r i c a l (a) The need f o r reform (b) The impetus f o r reform 116 (c) Statute law reform 117 2. Methods of Statute Law Reform 119 (i) Revision ( i i ) Indexing ( i i i ) Expurgation 120 (iv) Consolidation 122 (v) C o d i f i c a t i o n 123 3. The-Law Commission Act, 1965 126 4. "Forgotten amendments" to the Canadian Constitution 127 VI. THE REFORM OF PROVISIONS' FOR RECEPTION OF ENGLISH STATUTES BY LOCAL LEGISLATION 1. Incomplete reform: consolidation and l i s t i n g 129 v i i i PAGE (a) B r i t i s h Columbia 129 (i) R.S.B.C. 1911 ( i i ) Subsequent reform 132 ( i i i ) Law Reform Commission (b) Ontario 132 (i) 1902 Revision 134 ( i i ) Further consolidation 139 ( i i i ) Ontario Law Reform Commission 139 2. C o d i f i c a t i o n 141 (1) C o d i f i c a t i o n of p a r t i c u l a r aspects of law 141 (2) The American colonies (a) North Carolina: general p r o v i s i o n with a non-statutory l i s t authorized by the l e g i s l a t u r e 142 (b) New York: the re v i s i o n - r e p e a l method 144 (c) Repeal without complete s t a t u t o r y • r e v i s i o n 148 3. L i s t s of Statutes 149 (a) Alberta: I n s t i t u t e of Law Research and Reform 150 (b) Bahamas: Statutes expressly declared i n force 151 (c) G i b r a l t a r : Statutes declared i n force, with s p e c i f i c p r o v i s i o n to a l t e r (d) Ghana (formerly Gold Coast): Statutes s p e c i f i c a l l y excluded 152 (e) A p p l i c a t i o n of English Law Ordinance, Hong Kong 152 4. Complete Reform 152 (a) Western Nigeria 153 (b) V i c t o r i a (Australia) 154 (c) The legacy of the V i c t o r i a n l e g i s l a t i o n 162 (i) Report of the Law Reform Commission of New South Wales on the A p p l i c a t i o n of Imperial Acts i n New South Wales (L.R.C. 4) November, 1967 162 ( i i ) Report of the Law Reform Commission of the A u s t r a l i a n C a p i t a l T e r r i t o r y and Supplementary Report, 1973 ( i i i ) An unpublished report on English Statutes i n Papua New Guinea by Professor R. O'Regan, Professor of Law, Queensland Un i v e r s i t y , formerly of the Monash Law Faculty FOOTNOTES (Part III) VII. CONCLUSION: HAN THE IMPACT OF ENGLISH LAW BE ASSESSED ? BIBLIOGRAPHY APPENDIX A I The evolution of the English Law Act II The boundaries of the Province of B r i t i s h Columbia I I I P r o v i s i o n for the administration of J u s t i c e IV B r i t i s h North America Act, 1867 V The Interpretation Act, B r i t i s h Columbia VI Imperial L e g i s l a t i o n enlarging or defining the sphere of Col o n i a l l e g i s l a t i o n generally 1. C o l o n i a l Laws V a l i d i t y Act, 1865 2. Statute of Westminster, 1931 APPENDIX B VII Western Nigerian Statute VIII Bahamas Statutes , 1799 1957, Schedule VITA X ACKNOWLEDGMENT It i s d i f f i c u l t to adequately acknowledge the assistance given to me by my supervisor Dr. Richard F. Gosse and by Dr. George Curtis who read portions of the manuscript and gave advice and penetrating c r i t i c i s m of the d r a f t . Many of the suggestions of these gentlemen have been accepted and e f f e c t great improvement i n the manuscript. Mr. Arthur L. Close Counsel to the Law Reform Commission of B r i t i s h Columbia made available for research purposes several books from h i s private collection- and resource material which he had c o l l e c t e d , and which had been c o l l e c t e d by the Law Reform Commission of B r i t i s h Columbia. The l a t t e r were made available to me with the permission- of Mr. Leon Getz, Chairman of the Commission. Without Mr. Close's assistance, c r i t i c i s m and guidance, the research would have been less complete. 1 THE RECEPTION OF ENGLISH LAW AS A MODERN LEGAL PROBLEM Part I - Introduction I. THE RECEPTION PROBLEM TODAY 1. The General Impact of English Law i n B r i t i s h Columbia B r i t i s h Columbia as we know i t today was organized i n 1866 by Imperial Act.''" Two former Crown Colonies were joined i n one Colony: Vancouver Island and the mainland colony, B r i t i s h Columbia. The Stickeen t e r r i t o r i e s and various other B r i t i s h lands l y i n g west 2 of the Rockies not previously granted c o l o n i a l status had been previously attached to the mainland colony. This h i s t o r y w i l l be developed i n Chapter I I . In 1867, the B r i t i s h Columbia L e g i s l a t i v e Assembly enacted as law i n a l l parts of the Colony "the c i v i l and criminal Laws of England, as the same existed on the 19th day of November, 1858, and so far as the same are not from l o c a l circum- stances inapplicable In e f f e c t , t h i s enactment continued the p r o v i s i o n which had been made for the mainland colony of B r i t i s h Columbia at the time of i t s establishment by the November 19, 1858 Proclamation of Governor James Douglas. Substantially the same 4 provision i s i n force today as the English Law Act. A body of law takes many years to develop, unless i t i s taken from a system already operating i n another country. To avoid a vacuum i n a c o l o n i a l s i t u a t i o n and to continue the f a m i l i a r law of the parent nation, i t was the pr a c t i c e of England to extend i t s law to new lands s e t t l e d by In the case of a s e t t l e d colony, 2 i t was established as a rule of law at an early date that an Englishman going abroad took so much of the Law of England as at the date of settlement ' was su i t a b l e for the new land. A body of case law and l e g a l i n t e r p r e t a t i o n was immediately a v a i l a b l e and could be drawn upon to govern or guide as required. In the case of a conquered land, the law i n statu quo continued, subject to the conquering sovereign conferring only c e r t a i n English Law, p r i n c i p - a l l y i n the i n t e r e s t of uniformity and r e l a t i n g to commercial and criminal matters. In some cases the c o l o n i a l j u r i s d i c t i o n i t s e l f adopted English Law at a p a r t i c u l a r date. Such extension or adoption has been a common factor of the development and evolution of so c a l l e d "common-law j u r i s d i c t i o n s " associated i n the B r i t i s h Empire and Commonwealth and i n t h e i r emergence as independent nations, either associated or independent of Empire and Commonwealth. B r i t i s h Columbia adopted English Law by statute. The C i v i l and Criminal Laws of the parent nation at a precise date, 19 November, 1858, then formed the basis f or the c o l o n i a l development, subject to a l t e r a t i o n by the law then i n force i n the Colony, which included'law "in vf6rce by-' v i r t u e of settlement and c o l o n i a l l e g i s l a t i o n . The English Law Ordinance, 1867 ^preserved the e x i s t i n g law i n each portion of the Colony. E x i s t i n g law was d i f f e r e n t f o r each of the areas involved i n accordance with t h e i r divergent h i s t o r y and the d i f f e r e n t laws previously enacted i n each j u r i s - d i c t i o n . The 1867 Ordinance also defined English laws su i t a b l e 3 fo r the new land w i t h the words "... so f a r as the same are not from l o c a l circumstances i n a p p l i c a b l e E n g l i s h case law and the case law of the various c o l o n i a l j u r i s d i c t i o n s has developed i n t e r p r e t i v e r u l e s to determine the p r e c i s e meaning of t h i s and of s i m i l a r phrases i n other r e c e p t i o n s t a t u t e s and t h e i r e f f e c t on the p r e c i s e determin- a t i o n of what p o r t i o n of E n g l i s h Law was a c t u a l l y a p p l i c a b l e and rece i v e d . These matters w i l l be d e a l t w i t h i n Chapters I I I and IV. In a d d i t i o n to E n g l i s h Law received and a p p l i c a b l e by the p r o v i s i o n s of the E n g l i s h Law A c t , there i s a body of Imperial l e g i s - l a t i o n which i s a p p l i c a b l e p r o p r i o v i g o r e . These enactments are made by the supreme Parliament at Westminster f o r a p a r t i c u l a r colony or co l o n i e s and may apply i n England; they are a p p l i c a b l e whether or not they s a t i s f y the p r o v i s i o n s made i n the r e c e p t i o n s t a t u t e or i n t e r - p r e t a t i v e r u l e s w i t h regard thereto. They may be received and a p p l i c a b l e i n a colony whether or not the colony was known at the date of enactment and, u n t i l the Statute of Westminster, 1931,^ overbore repugnant p r o v i s i o n s of l o c a l l e g i s l a t i o n . These I m p e r i a l s t a t u t e s w i l l be discussed i n Chapter I I I . The E n g l i s h Law Ordinance, 1867, and p r o p r i o v i g o r e l e g i s - l a t i o n of the Imperial Parliament provide a foundation f o r the law of the Province of B r i t i s h Columbia. The L e g i s l a t u r e of B r i t i s h Columbia a n d , a f t e r B r i t i s h Columbia's union w i t h Canada, i n 1871, the P a r l i a - ment of Canada hase enacted a l a r g e body of s t a t u t o r y law. Some of t h i s l e g i s l a t i o n i s simply a-re^-enactment of E n g l i s h s t a t u t o r y law, or an adoption of E n g l i s h Law by reference,'' but often i t i s e n t i r e l y 4 innovative, and independent. 2. Problems of the reception of English Law The apparently f a c i l e provisions as to the reception of English Law i n a colony are i n keeping with the common law t r a d i t i o n of a d a p t a b i l i t y . R i g i d i t y i s avoided but p r e c i s i o n i s s a c r i f i c e d . The p r a c t i c a l a p p l i c a t i o n of these provisions raises the problems germane to reception. Their r e s o l u t i o n by the courts on an ad hoc basis as cases arise,provides a reception statement i n force today which i s f a r from s a t i s f a c t o r y . To analyze the law i n force as to reception, key issues the courts have already decided must be deter- mined and associated problems postulated. F i r s t a determination must be made as to whether the > colony i s a s e t t l e d or conquered colony, and then of the actual date of reception. Even where the date has been f i x e d by the Imperial or c o l o n i a l authority, as pro v i s i o n i s usually made preserving c o l o n i a l law i n force on that date, the actual settlement date may remain material and " s e t t l e r s ' law" may be i n force and be d i f f e r e n t from law received pursuant to the reception statute. Second, for B r i t i s h Columbia, a determination must be made of "the C i v i l and Criminal Laws of England" as at a p a r t i c u l a r date, 19 November, 1858. Questions have ar i s e n as to whether equity, as w e l l as the common law was included ither.ein., _ • and i s received law, and as to the actual date of the formulation of a common law p r i n - c i p l e . Special branches of law which once were separate, such as 5 commercial and e c c l e s i a s t i c law, present d i s t i n c t problems. Statute law presents i t s own problems. Parliament at West- minster l e g i s l a t e d in-two c a p a c i t i e s : for England; and for the c o l o n i a l empire. L e g i s l a t i o n .in i t s capacity as the supreme l e g i s l a t - ing body of the Empire (or of a s p e c i f i c colony), i s i n force i n a colony proprio vigore and was part of the law unaffected by the tests and body rules formulated with respect to the reception of English Law. However, the reception statute, or the common law provisions as to reception, dealt with l e g i s l a t i o n made for England and i n force i n England. I t i s possible to compile a l i s t of English statutes i n force at a precise date. From the statutes of th i s group must be excepted those of a purely domestic nature, having no general a p p l i c a b i l i t y out- side England, leaving for reception general laws equally applicable to any country governed by English Law. Third, a determination must be made as to a p p l i c a b i l i t y i n the colony. In the case of B r i t i s h Columbia, the'phrase "not from l o c a l circumstances i n a p p l i c a b l e " may be a decisive parameter d i s t i n g - guishing B r i t i s h Columbia from other j u r i s d i c t i o n s where a p o s i t i v e and not a double negative phrasing i s used. Received English Law must be s u i t a b l e to the circumstances i n the new land. I t i s modified by the l e g i s l a t i o n i n force i n the colony, provided such l e g i s l a t i o n i s not repugnant to the Law of England. What c r i t e r i a f o r s u i t - a b i l i t y w i l l -be applied and w i l l i t be a uniform standard for a l l English Law? Time i s a c r u c i a l parameter: at what date i s the determination of the circumstances i n the new land to be considered: 6 the reception date, or the date at which the issue before the court arose? The courts have been c a l l e d on to reconcile the often rudimentary state of the c o l o n i a l j u d i c i a l system and s o c i a l organ- i z a t i o n at the time of reception. The simpler' c o l o n i a l s tate has created i n t e r p r e t i v e questions requiring j u d i c i a l ingenuity to make the whole system work and appear l o g i c a l , within the needs of the p a r t i c u l a r case being considered by the court. The development of the c o l o n i a l s t a t e , i t s evolution toward independence, and the fe d e r a l form of union used i n several c o l o n i a l j u r i s d i c t i o n s , p a r t i c u l a r l y Canada and A u s t r a l i a , has created a d d i t i o n a l problems. The l e g i s l a t i v e heirarchy created i n the federated colonies introduced yet another l e g i s l a t i v e authority. In Canada, the union i s not s t r i c t l y i n accordance with the federal 1 0 p r i n c i p l e and co-operative federalism has evolved e f f e c t i n g a working compromise i n respect of the d i v i s i o n of l e g i s l a t i v e j u r i s - d i c t i o n between the federal and the p r o v i n c i a l j u r i s d i c t i o n s % made by 11 the B r i t i s h North America Act, 1867. The d i v i s i o n i t s e l f has given r i s e to i n t e r p r e t a t i v e problems as to j u r i s d i c t i o n and overlapping j u r i s d i c t i o n which further complicate the English Law question. This aspect of Canadian federalism w i l l be referred to i n Chapter IV. 3. Reform of reception provisions The problems of reception i n B r i t i s h Columbia are neither 7 new nor unique. As early as 1542, the I r i s h Parliament had p e t i t - ioned the King to p r i n t a c o l l e c t i o n of I r i s h statutes, proposing an examination of statute law, the repeal of obsolete enactments and 12 the p r i n t i n g of the remainder. However, i t was not u n t i l the nine- teenth century that a great deal of statute reform was undertaken i n England. This w i l l be referred to i n Chapter V. L e g i s l a t i v e refinement and r e v i s i o n has been proceeded with i n many j u r i s d i c t i o n s , either upon severing t h e i r t i e s with the Imp- e r i a l Parliament and emerging as an independent nation, or as a law reform measure. For example, the American colonies on separation did not attempt to do away with English Law but adopted l i m i t e d sections of i t i n various ways. The several Au s t r a l i a n states, while remaining wi t h i n the Empire, have undertaken s u b s t a n t i a l r e v i s i o n s , the most outstanding of which was the work of S i r Leo Cussen i n V i c t o r i a , which 13 found expression i n the Imperial Acts A p p l i c a t i o n Act 1922 . Today, i n Canada, Law Reform Commissions are i n v e s t i g a t i n g the problem and academics are stimulating reform action i n the i n t e r e s t of l e g a l pre- c i s i o n . A summary of what has been accomplished i n several other j u r i s d i c t i o n s and of th e i r methodology i s set out i n Chapter VI. The considerable achievement of these other j u r i s d i c t i o n s should not be disregarded insofar as i t i s relevant i n B r i t i s h Columbia. 4. Prospectus for reform It i s proposed to examine what English Law i s applicable and i s received i n B r i t i s h Columbia by v i r t u e of the reception statutes. 8 B r i t i s h Columbia's h i s t o r y , j u d i c i a l i n t e r p r e t a t i o n and l e g a l opinion r e l a t i n g to the subject w i l l be presented. The determination of applicable and received law, as a matter of some complexity, was foreseen by Lord Cranworth i n 1858, the year the Colony of B r i t i s h Columbia was established. He said i n Whicker v. Hume, "Nothing i s more d i f f i c u l t than to know which of our laws i s to be regarded as imported into our colonies ... Who i s to decide whether they are ^ adapted or not? That i s a very d i f f i c u l t question..." This question remains today to challenge the courts. Blackstone indicated an answer when he s a i d , "What s h a l l be admitted and what rejected, at what times, and under what r e s t r i c t i o n s , must i n cases of dispute, be decided i n the f i r s t instance by t h e i r own p r o v i n c i a l judicature, subject to the r e v i s i o n and control of the King i n Council; the whole of t h e i r c o n s t i t u t i o n being also l i a b l e to be new-modelled and reformed by the general superintending power of the l e g i s l a t u r e of the mother country." 15 The c o n s t i t u t i o n a l question has changed greatly i n the intervening years and the question today being considered by t h i s thesis i s : Can the problems r e l a t i n g to the reception of English Law be resolved by remedial l e g i s l a t i o n , without creating further i n t e r p r e t i v e problems for the B r i t i s h Columbia Courts? Although such reform i s not usually p o l i t i c a l l y s i g n i f i c a n t , defining and improving the applicable and received law of B r i t i s h Columbia i s a s u b s t a n t i a l matter i n view of the many c o n f l i c t i n g views which w i l l be presented. 9 I I . PROVISIONS FOR CONTINUITY OF LAW IN BRITISH COLUMBIA The determination as to whether p a r t i c u l a r E n g l i s h Law i s r eceived i n B r i t i s h Columbia i s made by c o n s i d e r i n g the h i s t o r y and p r o v i s i o n s of the p a r t i c u l a r law at i s s u e and by considering the h i s t o r y of the area as a B r i t i s h colony. The l e g i s l a t i v e foundation of the colony i s p a r t i c u l a r l y important. 1. L e g i s l a t i v e h i s t o r y of B r i t i s h Columbia (a) Vancouver I s l a n d (formerly Vancouver's Island) The I s l a n d was o r i g i n a l l y charted by Captain George Vancouver i n connection w i t h survey work undertaken i n 1792 and 1794.^ In 1821 the Crown granted to the Hudson's Bay Company e x c l u s i v e trade p r i v i l e g e s i n the north and north-west i n B r i t i s h t e r r i t o r i e s not included i n Quebec. In 1838, the Grant was extended f o r a f u r t h e r twenty y e a r s . T h e Company's traders and those of Russia and the United States of America continued to trade i n the area l a t e r known as B r i t i s h Columbia, and traded on Vancouver's I s l a n d . The expanding American f r o n t i e r and the settlement of the 18 boundary question at the 49th p a r a l l e l i n 1846 prompted the I m p e r i a l a u t h o r i t i e s to r e g u l a r i z e the s i t u a t i o n on the I s l a n d where a Hudson's Bay post had been e s t a b l i s h e d at V i c t o r i a i n 1843, by James Douglas."^ Settlement was to be the weapon used to prevent the t h r u s t of "Manifest Destiny" and the p o s s i b l e l o s s of the western B r i t i s h t e r r i t o r i e s . A f t e r c o n s i d e r i n g e s t a b l i s h i n g a Mormon colony and the 10 p o s s i b i l i t y of developing the Is l a n d as a penal colony, the Crown granted the I s l a n d to the Hudson's Bay Company. As settlement was of great importance i n t h i s period of American expansion, settlement 20 was made a c o n d i t i o n of the 1849 Grant. The Is l a n d was made a Crown Colony and a Governor was appointed. Governor Richard Blanchard a r r i v e d i n V i c t o r i a i n March 1850 and resigned i n November of that 21 year. He found no s e t t l e r s who were not a f f i l i a t e d w i t h or employed by the Company and t h e i r de f a c t o a l l e g i a n c e was to the Company and not to the Queen's Governor. In September, 1851, Governor Douglas 22 was named to succeed Blanchard. The Company s t i l l administered the I s l a n d and h e l d a l l revenues. The land grant to the Hudson's Bay Company was continued f o r a f u r t h e r f i v e years i n 1853 and during t h i s second period the f i r s t L e g i s l a t u r e convened and continued i n o f f i c e u n t i l the Grant 23 was terminated. Years of n e g o t i a t i o n followed to determine the indemnity f i g u r e payable to the Company, which had been provided f o r by the o r i g i n a l Grant>and when the matter was eve n t u a l l y r e s o l v e d , 24 the I s l a n d was reconveyed to the Crown on 3 A p r i l , 1867. Two Imp e r i a l s t a t u t e s of 1803 and 1821 had o r i g i n a l l y provided f o r the a d m i n i s t r a t i o n of j u s t i c e by the courts of Upper Canada i n the Hudson's Bay t e r r i t o r y . By Imp e r i a l s t a t u t e i n 1849, 25 p r o v i s i o n was made f o r Vancouver Island's own cour t s . Of the f i r s t f i v e appointees as j u s t i c e s of the peace, four were employed by the Hudson's Bay Company or i t s s u b s i d i a r y , the Puget Sound A g r i c u l t u r a l Company. The L e g i s l a t i v e C o u n c i l organized a Court of Petty Sessions 11 which proved inadequate when the commercial business of the Colony grew. The Cou n c i l then set up a high court of j u s t i c e , f i r s t d e s i g - nated a Court of Common Pleas and l a t e r , the Supreme Court of C i v i l J u s t i c e of Vancouver I s l a n d . This court was a permanent court of 26 r e c o r d , w i t h appeals to the Governor and C o u n c i l . I t s f i r s t Judge was David Cameron, who had been employed by the Hudson's Bay Company and was Douglas's b r o t h e r - i n - l a w . P e t i t i o n s were f i l e d i n p r o t e s t and i n support of the appointment which was s u c c e s s f u l l y defended to the C o l o n i a l O f f i c e by Douglas. Cameron l a t e r became Chief J u s t i c e of the Court. He i s c r e d i t e d w i t h compiling the f i r s t Rules of Court which were published i n 1858, the f i r s t book p r i n t e d on Vancouver I s l a n d . ^ No s p e c i a l p r o v i s i o n was made i n the 1849 Statute w i t h respect to E n g l i s h Law. E n g l i s h Law had been introduced w i t h s e t t l e - ment and remained i n fo r c e as s e t t l e r s ' law u n t i l the E n g l i s h Law 28 Ordinance, 1867, enacted a f t e r the Colony j o i n e d w i t h the mainland colony of B r i t i s h Columbia, proclaimed that E n g l i s h Law at 19 November, 1858, should be i n fo r c e . Vancouver I s l a n d i s a colony i n which i t i s d i f f i c u l t to determine the exact date of settlement. Although the Colony was founded i n 1843, the p r e c i s e date of settlement has not been agreed on by the c o u r t s , save f o r r e c o g n i t i o n that i t was before 1858, and prob- 29 ably before 1855. The 1849 Grant to the Hudson's Bay Company was made on c o n d i t i o n that the Company should e s t a b l i s h upon the I s l a n d a "settlement of re s i d e n t c o l o n i s t s , emigrants from Our United Kingdom of 12 Great B r i t a i n and I r e l a n d , or from other ... Dominions, and s h a l l dispose of the land there as may be necessary f o r the purposes of c o l o n i z a t i o n I t has been suggested that the consent of the 30 Crown i s necessary to c o n s t i t u t e "settlement", and that t a k i n g t i t l e 31 to land i s a f a c t o r . Both elements e x i s t e d i n the I s l a n d colony 32 a f t e r the f i r s t land s a l e . Such problems i n respect of settlement dates can be resolved by a r e c e p t i o n s t a t u t e which provides a d e f i n i t e date f o r re c e p t i o n . Such a s t a t u t e resolved the matter f o r Vancouver I s l a n d when the E n g l i s h Law Ordinance, 1867, provided 19 November, 1858, as the r e c e p t i o n date, continuing the p r o v i s i o n made f o r the mainland colony of B r i t i s h Columbia. (b) B r i t i s h Columbia 1858 - 1866 M a r t i n , J . , (as he then was) i n 1906 gave the f o l l o w i n g b r i e f h i s t o r y of the Colony: "The Colony of Vancouver I s l a n d was founded i n 1843 by the Hudson's Bay Company, w i t h the e r e c t i o n of the Fort of V i c t o r i a , but long before that time the same company had many permanent establishments west of the Rocky Mountains i n what i s now the mainland of t h i s P rovince; a l i s t of them may conveniently be seen i n the San Juan Boundary A r b i t r a t i o n Case, submitted to the German Emperor — B r i t i s h Case (1873), 2nd Statement, p. xxv. For t Langley i t s e l f , the f i r s t seat of Government of the new Colony of B r i t i s h Columbia was founded i n 1827, and the dates of the founding of many other f o r t s w i l l be found i n the B r i t i s h Columbia Year Book, 1897, p. 73. I mention these f a c t s to shew that the question does not depend, ... upon the h a b i t s or customs of miners, f o r E n g l i s h law was brought here by the e a r l y s e t t l e r s long before the discovery of the precious metals, f o r the various dates of which see 1 M.M.C., H i s t o r i c a l P r e f a c e , p. v. ..." 33 13 When gold was discovered on the Fraser i n 1858, Governor Douglas proclaimed the i n t e r e s t of the Crown and promulgated r e g u l - a t i o n s w i t h respect to revenue and maintaining order. This was done May 8, 1858, but h i s p o s i t i o n was not r e g u l a r i z e d u n t i l the g o l d f i e l d s area, w i t h other portions of the f u r t r a d i n g area known as New C a l - edonia, were granted the s t a t u s of a Crown Colony. I t was designated B r i t i s h Columbia, w i t h Douglas as i t s f i r s t G o v e r n o r . j 4 For l e g a l h i s t o r i a n s and those c o n s i d e r i n g received E n g l i s h Law i n B r i t i s h Columbia, the date 19 November, 1858, i s s a l i e n t . On that day the o f f i c i a l documents c r e a t i n g the p o l i t i c a l e n t i t y were promulgated. The scene i n Fort Langley on a r a i n y November day has been described many times and the various Proclamations l i s t e d : they are the foundation of the Province and of the E n g l i s h Law question as we know i t today. As the nearest r e p r e s e n t a t i v e of the Queen, Governor Douglas of Vancouver I s l a n d , swore Matthew B a i l l i e Begbie, a C o l o n i a l O f f i c e appointee, as Judge. The new Judge then administered the Governor's oaths of o f f i c e and a l l e g i a n c e f o r Douglas as Governor of B r i t i s h Columbia. The f i r s t act of Douglas as the Governor of B r i t i s h Colum- b i a was to read the r e v o c a t i o n of the e x c l u s i v e Licence to the Hud- 35 son's Bay Company i n respect of the Indian trade and then read three key Proclamations: Proclamation of An Act f o r the Government of B r i t i s h Columbia; J36 Proclamation having the f o r c e of Law to indemnify the 14 Governor ... f o r acts done before the establishment of any l e g i t i m a t e a u t h o r i t y i n B r i t i s h Columbia; 3,7 Proclamation having the force of Law to declare E n g l i s h Law i n f o r c e . 38 Judge Begbie i s c r e d i t e d w i t h the c r e a t i o n of the j u d i c i a l 39 system i n the Colony. Rules of Court were provided and the con- s t i t u t i o n of the high court of j u s t i c e of B r i t i s h Columbia was pro- n 40 mulgated by Proclamation of Governor Douglas, 8 June, 1859. The Court was designated as The Supreme Court of C i v i l J u s t i c e of B r i t i s h Columbia, e x e r c i s i n g j u r i s d i c t i o n i n a l l cases, c i v i l or c r i m i n a l , and observing the forms and process of the common law then p r e v a i l i n g •'4-1" i n England." Judge Begbie's s i t u a t i o n was c o l o u r f u l l y described i n a memorandum to the E a r l of Carnarvon, the C o l o n i a l Secretary, i n 1866. I t i s a timely d e s c r i p t i o n of the "... l o c a l circumstances ... i n a l l p arts of the Colony of B r i t i s h Columbia " I s h a l l venture to say that no E n g l i s h judge has perhaps ever been placed so u t t e r l y and e n t i r e l y alone, w i t h so many circumstances of p h y s i c a l and moral d i f - f i c u l t y and i r r i t a t i o n around him, f o r such a length of time, i n the w i l d e s t v i c i s s i t u d e s of excitement and r u i n . Secondly, that the c r i m i n a l s t a t i s t i c s of the colony appear h i g h l y favourable when placed beside those of any other gold producing country. Crimes of v i o l e n c e are extremely r a r e ; highway robberies almost unknown; I th i n k only 4 or 5 cases by white men s i n c e my f i r s t c i r c u i t i n 1859. The express has f o r years t r a v e l l e d c o n s t a n t l y over 500 miles of road, c h i e f l y through mountainous or f o r e s t country. I t c a r r i e s from $50,000 to $200,000 — protected I b e l i e v e by two armed men — I don't t h i n k i t has ever once been attacked. Stabbing and p i s t o l i n g , so common i n the adjacent t e r r i t o r i e s are almost unheard of on the B r i t i s h s i d e of the l i n e : although the p o p u l a t i o n i s composed of the same i n g r e d i e n t s . " 4;2 15 The area of B r i t i s h Columbia was gr a d u a l l y increased u n t i l i t i ncluded a l l the B r i t i s h t e r r i t o r i e s l y i n g west of the Rocky Moun- t a i n s , except the Crown Colony of Vancouver I s l a n d , which remained 43 separate u n t i l 1866. The Stickeen t e r r i t o r i e s were added i n 1862 44 and f u r t h e r boundary r e v i s i o n s were made by I m p e r i a l Statute i n 1863. (c) Stickeen t e r r i t o r i e s These t e r r i t o r i e s were s e t t l e d lands which had not been granted separate C o l o n i a l s t a t u s . They were however a d i s t i n c t area, l y i n g north from the mainland colony of B r i t i s h Columbia and were f o r a b r i e f p e r i o d provided w i t h a separate r e c e p t i o n date. By I m p e r i a l 45 Order i n C o u n c i l dated 19 J u l y 1862 i t was provided: 1. that the a d m i n i s t r a t i o n of j u s t i c e i n the area should be under the j u r i s d i c t i o n of the Supreme Court of C i v i l J u r i s d i c t i o n of B r i t i s h Columbia; 2. that the law i n force i n the s a i d t e r r i t o r i e s should be the Law of England as i t e x i s t e d on the 1st day of January, 1862; and 3. that the Stickeen lands should be annexed to B r i t i s h Columbia. (d) The United Colony of B r i t i s h Columbia 1866 - 1871 The s i t u a t i o n that p r e v a i l e d of the two s m a l l c o l o n i e s of Vancouver I s l a n d and mainland B r i t i s h Columbia w i t h separate admin- i s t r a t i o n s , although they shared f o r some years the same Governor, 46 was remedied i n 1866 when the two were j o i n e d by Imperial Statute. E n g l i s h Law i n the whole Colony, i n c l u d i n g the Stickeen t e r r i t o r i e s , 16 47 was provided f o r by the E n g l i s h Law Ordinance •, 1867, f i x i n g the date at 19 November, 1858. The a d m i n i s t r a t i o n of j u s t i c e was complicated f o r the f i r s t years as there were two Courts and two Chief J u s t i c e s . 48 The Supreme Courts Ordinance, 1869, provided f o r the c r e a t i o n of a new Supreme Court of B r i t i s h Columbia, f o r the whole Colony, to come i n t o operation when one of the Chief J u s t i c e s d i e d or resigned. This s o l u t i o n was perf e c t e d when the Chief J u s t i c e Needham of the I s l a n d Court resigned i n 1870 to become Chief J u s t i c e of T r i n i d a d , 49 and Chief J u s t i c e Begbie became Chief J u s t i c e f o r B r i t i s h Columbia. (e) Union w i t h Canada P r o v i s i o n had been made by Secti o n 146 of The B r i t i s h North America Act, 1867,"^ f o r B r i t i s h Columbia to j o i n the Union as a Province. This was e f f e c t e d by I m p e r i a l Order i n C o u n c i l dated 16 May, 1871, e f f e c t i v e 20 J u l y , 1871. The d i v i s i o n of j u r i s d i c t i o n i n The B r i t i s h North America Act, 1867, now operated to deprive B r i t i s h Columbia of l e g i s l a t i v e j u r i s d i c t i o n s p e c i f i c a l l y assigned to the Parliament of Canada which was supreme w i t h i n the l e g i s l a t i v e ambit assigned to i t by S e c t i o n 91, and not assigned to the Provinces by Secti o n 92. Upon Union, S e c t i o n 129 of The B r i t i s h North America Act, 1867, operated to continue i n force a l l B r i t i s h Columbia laws as i f Union had not occurred, subject to a l t e r a t i o n by the appropriate j u r i s d i c t i o n , f e d e r a l or p r o v i n c i a l , according to the l e g i s l a t i v e 17 d i v i s i o n of that Statute. The whole l e g i s l a t i v e context remained subject to p r o p r i o v i g o r e l e g i s l a t i o n . The j u d i c i a l system of B r i t i s h Columbia was preserved, subject to p r o v i s i o n f o r the c r e a t i o n of a general court of appeal f o r Canada."^ Supplementing these I m p e r i a l p r o v i s i o n s , the Federal govern- ment" enacted l e g i s l a t i o n s p e c i f i c a l l y d e l e t i n g from the E n g l i s h Law 52 Ordinance, 1867, the reference to c r i m i n a l laws and applying Federal law to B r i t i s h Columbia w i t h i n the l e g i s l a t i v e ambit of Section 91 of 53 The B r i t i s h North America A c t , 1867. This l e g i s l a t i o n was passed i n a n t i c i p a t i o n of B r i t i s h Columbia j o i n i n g the Union as a Province. 2. S p e c i a l l e g i s l a t i v e p r o v i s i o n s f o r r e c e p t i o n i n B r i t i s h Columbia I n order to assess the impact of E n g l i s h Law i n B r i t i s h Columbia, i t should be noted that i n a d d i t i o n to the general r e c e p t i o n s t a t u t e , the E n g l i s h Law A c t , s e v e r a l other instances occur i n the P r o v i n c i a l Statutes i n c o r p o r a t i n g E n g l i s h Law by reference. These are as f o l l o w s : (1) Rules promulgated under s e c t i o n 5 of the Replevin Act, p a r t i c u l a r l y r u l e 13, provides that the Law of England as at 5 December, 1859 a p p l i e s to the i s s u e of capias i n withernan i n respect of d i s t r a i n e d property. 54 (2) The Equal Guardianship of Infants A c t , by s e c t i o n 3(1), confers on a guardian such powers as any guardian appointed by w i l l or otherwise had on 19 May, 1917, i n England under the Acts 12, Charles I I , c. 24; c. 27, s e c t i o n 4; 55 (3) The Attorney General A c t , s. 3 ( e ) , provides that the Attorney General " i s entrusted w i t h the powers and ... duties which belong to the o f f i c e of the Attorney General and S o l i c i t o r General of England by law or usage, so f a r as the same powers and duties are 18 a p p l i c a b l e to the Province ..." Subject to at l e a s t these exceptions, the E n g l i s h Law Ordinance, 1867, f i x e d the date 19 November, 1858, as the c r u c i a l date at which to determine E n g l i s h Law f o r B r i t i s h Columbia. E n g l i s h Law was als o enacted as indigenous law when the l e g i s l a t u r e copied or modelled l e g i s l a t i o n on an E n g l i s h o r i g i n a l or adopted as t h e i r own enactment an E n g l i s h act then i n f o r c e . In many cases these are enactments which d u p l i c a t e or are s l i g h t l y a t variance w i t h E n g l i s h Law i n force by v i r t u e of the E n g l i s h Law A c t , as successor to the E n g l i s h Law Ordinance, 1867. Probably the most p e c u l i a r example of t h i s i s the purported enactment i n B r i t i s h C o l - umbia, a f t e r Union, of the Divorce and Matrimonial Causes Act, 1857, of England. The general r u l e s f o r r e c e p t i o n and a p p l i c a b i l i t y of E n g l i s h Law do not apply to such enactments. 19 FOOTNOTES (Part I) 1 29 & 30 V i c t . c. 67 (Imp.), 6 August, 1866, An Act for the Union of the Colony of Vancouver Island with the Colony of B r i t i s h Columbia, Appendix A II ( i i i ) . F a r r i s , C.J.B.C. summarizes much of the h i s t o r y i n Reference re Ownership of the Bed of the Straight of Georgia and related areas, [1977] 1 B.C.L.R. 97 @ 99 f f . 2 25 V i c t . : Order i n Council, 19 July, 1862, (Imp.). Vide. Appendix A II (v), 26 & 27 V i c t . c. '83 (Imp.) 28 July, 1863, An Act to define the Boundaries of the Colony of B r i t i s h Columbia, and to continue an Act to provide f o r the Government of the s a i d Colony, v, Appendix A II ( i v ) . 3 Douglas Proclamation, 19 November, 1858, B r i t i s h Columbia, A L i s t of Proclamations, 1858-64, (New Westminster, 1858-1864), p.15. v, Appendix A I (i ) . 4 R.S.B.C. 1960, ch. 129, s.2. Although the form today i s sub- s t a n t i a l l y the same as the English Law Ordinance, 1867, which replaced the Douglas Proclamation, the changes, p a r t i c u l a r l y verb changes are material to the English Law question. The various enactments are set out i n Schedule I, 1. and verb changes noted i n block c a p i t a l s . 5 The English Law Ordinance, 1867, No. 7 Laws of B r i t i s h Columbia, Columbia, 1867. v, Appendix I 1 ( i i ) J. E. Cote', "The Reception of English Law" (1977, No. 1), 15 Alberta Law Review, p. 29 @ 92, raises the question of the v a l i d i t y of enactments a f t e r Union, cf. C.S.B.C. 1888, ch. 69, s.2, Appendix A I ( i v ) . 6 22 Geo. V c. 4 (Imp.). 7 V, Chapter I I , 2, p.17. 8 This d i s t i n c t i o n w i l l be developed i n Chapter I I I , 2, v, p.25 et.seq. 9 This argument i s raised i n any colony where the reception statute applies a date subsequent to actual settlement. I t can be ra i s e d i n B r i t i s h Columbia i n respect of each of the d i f f e r e n t segments united to form the Province as we know i t today. 1 0 A t t o r n e y General B r i t i s h Columbia v. Attorney General for Canada, [1937] A.C. 277, at p.389, where Lord Atkin rejected as beyond Parliament's j u r i s d i c t i o n an early attempt at co-operation. As to l e g i s l a t i v e cooperation: Ec.A. Driedger, "The Interaction of Federal and P r o v i n c i a l Laws" (1976) , 54 The Canadian Bar Reviewy695, p., 713. ~ — ' ' 20 11 30 & 31 V i c t . c. 3 (Imp.), sections 91 and 92, v_, Appendix A, 12 Northern Ireland, Her Majesty's Stationery O f f i c e , The Statutes Revised NORTHERN IRELAND, 1956. Foreword of the Lord Chief J u s t i c e of Northern Ireland, the Rt. Hon. Lord MacDermott. Preface p . v i . f f . l i s t s Acts of Parliament not extended to Ireland, the others which a f f e c t Ireland are i n Part 2 of the Chronological Table (from 1226 to 1800) and Part 3 thereof (those from 1801 to 1960). The Revision i s being continued i n separate volumes, p. lxxxix f f . as to c r i t e r i a re Part 2 statutes. The determination \j£smade DY Dr. A.G. Donaldson of the Parliamentary Draftsmen's O f f i c e . 13 13 Geo. V. No. 3270 ( V i c t o r i a ) . 14 (1858) 7 H.L.C. 124, at 161; 11 E.R. 50. The case finds the Statute of Mortmain (9 Geo. II c. 36 (Imp.) not applicable to New South Wales. 15 Blackstone, W. , Commentaries, v23rd ed.- (London, 1854) v o l . I, p. '107, quoted and discussed, Cooper v. Stuart,'(1889) 58 L.J.P.C. 93, Lord Watson. 16 Cicely Lyons, SALMON: OUR HERITAGE The Story of a Province and an Industry (Vancouver: M i t c h e l l Press Limited, 1969), p. 11, 12, 25. Captain Vancouver was i n the area to accept the return of the assets of John Meares at Nootka which had been seized by two Spanish warships. The incident i s known as the Nootka A f f a i r . 17 _V, Preamble, 22 V i c : Revocation of Hudson's Bay Company's Licence of 30th May, 1838 ... (2 September, 1858), Printed B.C. Ordinances 1858-1864 (n.3), p.6, and R.S.B.C. 1911, v o l . IV (1913), p. 249. The d e s c r i p t i o n of B r i t i s h Columbia i n the second paragraph of the Preamble, although i t i s s i m i l a r to that i n 21 & 22 V i c t . c. 99 (v_, Appendix I, 2 ( i ) i s not a: verbatim reproduction of the des c r i p t i o n . Douglas MacKay, The Honourable Company: A History of the Hudson's Bay Company. Canadian Best-Seller Library (Toronto: McClelland and Stewart Limited, Second E d i t i o n revised by Shane MacKay, to 1966), p. 234 and p. 259ff. t e l l s of the House of Commons Committee appointed 5 February 1857 "to consider the state of those B r i t i s h Possessions i n North America which are under the administration of the Hudson's Bay Company, or over which they possess a Licence to trade," and at p. 273, of the Report from the Select Committee on the Hudson's Bay Company, 1857, r e c i t i n g the necessity of better government for Vancouver Island. 18 Treaty of Washington, 1846, s e t t l e d the Boundary. As to B r i t i s h Columbia boundary, a l l the judgments i n the S t r a i t of Georgia case, supra, n . l , p a r t i c u l a r l y p . l , 135. 21 19 Lyons, op. c i t . , p. 54. 20 Leonard A. Wrinch, Land P o l i c y i n the Colony of Vancouver I s l a n d 1849-1966 (unpublished M.A. t h e s i s , U n i v e r s i t y o f B r i t i s h Columbia, 1932) p. 6,-.--7 "and 53. 12 V i c t . : L e t t e r s Patent, Vancouver I s l a n d (13 January 1858) p r i n t e d R.S.B.C. 1911, v o l . IV (1913), p. 107ff, which r e c i t e s the h i s t o r y of the Hudson's Bay Company i n the area. As to the theory of American expansion promoting nationhood, af. Harold A. Innes, The Fur Trade i n Canada: An I n t r o d u c t i o n to Canadian Economic H i s t o r y , Canadian U n i v e r s i t y Paperbooks (based on Revised E d i t i o n 1956 by S.D. Cl a r k and W.T. Easterbrook: U n i v e r s i t y of Toronto P r e s s , P r i n t e d Forge V i l l a g e , Mass. The Murray P r i n t i n g Company, 4th P r i n t i n g , J u l y 1967), I n t r o d u c t i o n by Robin W. Winks @ x i v , e x p l a i n s I n n i s ' theory t h a t Canadian nationhood arose because of her geography: "created by an east- west l i n e of i m p e r i a l communications, a l i n e based on the S t . Lawrence R i v e r , the Great Lakes, and the western waterways and t r a i l s , Chapter I I I , at p. 43, which considers the s p e c i a l l e g a l considerations which were a p p l i e d to these highways of n a v i g a t i o n . 21 David M.L. F a r r , "The Organization of the J u d i c i a l System i n ths Colonies of Vancouver I s l a n d and B r i t i s h Columbia, 1849-1871" (1967 No. 1) 3 U.B.C. Law Review, 1 @ 2; Lyons, op. c i t . (n.16), p. 66. 22 R.G. Herbert, "A B r i e f H i s t o r y of the I n t r o d u c t i o n of E n g l i s h Law i n t o B r i t i s h Columbia" (1953) I I U.B.C. Legal Notes, p. 95. 23 22 V i c t . : Revocation of Hudson's Bay Company's Licence, supra • n.17. 24 30 V i c t . : Reconveyance of Vancouver I s l a n d (3 A p r i l , 1867) P r i n t e d , R.S.B.C. 1 9 1 1 v o l . IV (1913), p. 276ff. 25 43 Geo. I l l c. 138 (Imp.) and 1 & 2 Geo. IV c. 66 (Imp.) were replaced by 12 & 13 V i c t . c. 48 (Imp.) An Act to provide f o r the A d m i n i s t r a t i o n of J u s t i c e i n Vancouver's I s l a n d , v, Appendix A I I I , i , i i , i i i . 26 F a r r , op. c i t . , p. 7. 27 Loc. c i t . 28 Supra, n. 5. 22 29 Manson, J . , R. v. Columbia Paper Co. Ltd. (1954) 111 C.C.C. 48, at 51; also c i t e d as R. v. Crown Zellerbach Canada Ltd. [1955] 3 D.L.R. 399; Reynolds v. Vaughan, (1872) 1 B.C.R. 3 (prior to 1855); Wrinch, op; c i t . (n. 20), p. 26 (at l e a s t one family had s e t t l e d i n 1851). 30 The quotation i s from 12 V i c t . : Letters Patent, Vancouver Island, to Hudson's Bay Company, printed R.S.B.C. 1911, v o l . IV (1913), p. 107 (§ p. I l l , portions are reproduced Appendix A II (i) Wrinch, op. c i t . (n. 20), p. 22 f f . as to extinguishing Indian land claims. 31 "Settlement", see Hoggan v. Esquimalt and Nanaimo Railway Company [1894] A.C. 429, 435 (P.C. on appeal from S.C.C. , affirming F u l l Ct. B.C. which affirmed Walkem, J.) 32 Wrinch, op. c i t . , p. 76 f f . as to land sales; Proclamation re a c q u i s i t i o n of land, 21 March, 1861. 33 West Kootenay Power & Light Co. v. City of Nelson (1905), 12 B.C.R. 34 @ p. 51. 33A v. Appendix I I pp. 212-215. 34 21 & 22 V i c t . c. 99 (Imp.) An Act to provide f or the Government of B r i t i s h Columbia (2 August 1858). v. Appendix A II ( i i i ) . Wrinch, op. c i t . !(.n. 20), p. 191, quotes Lytton to Douglas, 30 December 1858: "I cannot conclude without expressing my c o r d i a l approval of the manner i n which you appear to have carried out the two objects which at the outset of such a colony should be stead- f a s t l y borne i n view — v i z . , a l i b e r a l and kin d l y welcome to a l l honest Immigrants and the unquestionable supremacy of B r i t i s h Sovereignty and Law." As to Governor, Martin, J . Sheppard v. Sheppard (1908) 13 B.C.R. 508, and his r e l a t i o n with Home Government. 35 Supra, n. 17. 36 B r i t i s h Columbia Ordinances 1858 - 1864 (op. c i t . ) n . 3), p. 9. 37 R.S.B.C. 1911 v o l . IV (1913) p. 251. 38 Supra, n. 3. 39 Farr, op. c i t . (n. 21), p. 17. 40 Farr, l o c . c i t . John C. Bouck and D a r r e l l W. Robertsj A Proposal for the Reform of the B r i t i s h Columbia Supreme Court Rules, 1961. Sponsored by The Foundation for Legal Research i n Canada and The Law Foundation ( B r i t i s h Columbia) (Vancouver: P r i c e ; P r i n t i n g , August 1972), p. 14. 41 Farr, l o c . c i t . 42 Farr, op. c i t . , p. 18. The phrase " l o c a l circumstances ... i n a l l parts of the Colony.of B r i t i s h Columbia" i s taken from the English Law Ordinance, 1867. Supra, n. 5. 43 Supra, n. 2, as to 25 V i c t . : Order i n Council, 19 July, 1862, 44 Supra, n. 2, as to 26 & 27 V i c t . c. 83 (Imp.). 45 Supra, n. 43 and 2. 46 Supra, n. 1. 29 & 30 V i c t . c. 67 (Imp.). In the case of B r i t i s h Columbia, the right to l e g i s l a t e had been delegated to the Governor and this was the s i t u a t i o n u n t i l the Colonies were joined i n 1866. 47 Supra, n. 5. 48 Printed 1877 C.S.B.C. c. 53 (Consecutive No. 318, R.S. 1971, No. 112). v_. Appendix A I I I ( v i i i ) . 49 Farr, op. c i t . (n. 21), p. 25. 50 Supra, n. 11. Note: combinations of colonies were not always a union, c.f. Federal Council of A u s t r a l a s i a , Oct. 1885 (48 & 49 V i c t , c. 60 (Imp.)) which preceeded.by some years The Commonwealth of A u s t r a l i a Constitution Act, 1900 (63 & 64 V i c t . c. 12 (Imp.)). 51 B r i t i s h North America Act, 1867, 30 & 31 V i c t . c. 3 (Imp.) v. Appendix A, p. 221, s. 101. v. Supreme Court Act, R.S.C. 1952, c. 259, as to Court of Appeal. A.-G..Ontario v. A.-G. Canada, [1947] A.C. 127, as to ri g h t to abolish appeals. 52 Supra, n.~ 5, amended by R.S.C. 1866, 49 V i c t . c. 4, s. 5 (2). 53 Supra, n. 11. 54 R.S.B.C. 1960 c. 339. 55 R.S.B.C. 1960 c. 130., 56 R.S.B.C. 1960 c, 21. 57 20 & 21 V i c t . , c. 85 (Imp.)(proclaimed i n force, January 1858); amended 21 & 22 V i c t . , c. 108 (Imp.) ( i n f f o r c e , August 2, 1858), R.S.B.C. 1897, c. 62. The h i s t o r y of the enactment i s given by Kerwin, C.J.C., @ p. 565, i n Densmore Case i n f r a n. 200, p. 108. 24 Part II - The Reception of English Law"*" I I I . GENERAL RULES FOR RECEPTION AND APPLICABILITY OF ENGLISH LAW When the c o l o n i a l period began, the common law formulated rules to govern the extension of the King's sovereignty and pre- rogative to new lands and the reception of English Law abroad. How the King acquired the lands was decisive. 1. The Royal prerogative Common law accepted from medieval times that the King could confer those laws which he chose on h i s various subjects outside England. Each part of the United Kingdom had been treated d i f f e r e n t l y : i n Wales, English Laws replaced the Welsh laws; i n Ireland, the l e g i s - l a t i o n of the English and the I r i s h parliaments i n d i f f e r e n t and over- lapping periods applied; and i n Scotland, Scots law p r i o r to the Union was preserved with minor exceptions as to trade, and a f t e r Union, the United Parliament at Westminster l e g i s l a t e d for both countries. The King maintained, even a f t e r he became the King i n Parliament, that the Parliament of England had no authority over the Crown's possessions out- side England, and he alone had power to declare what laws were to be i n 2 force and what the rights and duties of the conquered people were. This prerogative r i g h t to l e g i s l a t e , without the concurrence of P a r l i a - ment, survived the Restoration with respect to conquered countries but 3 not i n respect of s e t t l e d colonies. The royal prerogative with respect to s e t t l e d colonies was l e g i t i m i z e d by the B r i t i s h Settlements Act, 1843. 25 The r o y a l prerogative was extended to non-British t e r r i t o r - ies by the Foreign J u r i s d i c t i o n s Act, 1890."^ 2. How i s English Law received? (a) By conquest The p o s i t i o n as to conquered or ceded countries was that the e x i s t i n g system or code of law, except that portion repugnant to the new status as an English colony, was modified only by proprio vigore l e g i s - l a t i o n conferring the benefit of c e r t a i n English law, and by c o l o n i a l enactments v a l i d l y made by a l o c a l l e g i s l a t u r e a f t e r conquest. Lord Mans- f i e l d considered the law as to the conquest of Grenada i n Campbell v. H a l l . The propositions he formulated with respect to sovereignty, pre- rogative, and English Law are v a l i d today, with only a few exceptions. In 1774, Lord Mansfield stated s i x propositions "too c l e a r to be controverted", as follows: (1) "A country conquered by the B r i t i s h arms becomes a dominion of the King i n the r i g h t of h i s Crown; and, therefore, n e c e s s a r i l y subject to the Legislature, the Parliament of Great B r i t a i n . " (2) "that the conquered inhabitants once received under the King's protection, become subjects, and are to be u n i v e r s a l l y considered i n that l i g h t , not as enemies or a l i e n s . " 7 (3) "that the a r t i c l e s of c a p i t u l a t i o n upon which the country i s surrendered, and the a r t i c l e s of peace by which i t i s ceded, are sacred and i n v i o l a b l e according to t h e i r true intent and meaning." But such a r t i c l e s to be binding must be confirmed by treaty and t r e a t i e s have no domestic e f f e c t . They could not impinge upon Parliament's sovereign and exclusive 26 power to change law i n force i n a conquered country by statute. Lord Mansfield continued: (4) "that the law and l e g i s l a t i v e government of every dominion, equally a f f e c t s a l l persons and a l l property within the l i m i t s thereof; and i s the rule of decision for a l l questions which a r i s e there. Whoever purchases, l i v e s , or sues there, puts himself under the law of the place. An Englishman i n Ireland, Minorca, the I s l e of Man, or the plantations, has no p r i v i l e g e d i s t i n c t from the natives." Englishmen r e s i d i n g i n conquered lands often claimed the b e n e f i t of laws not a c t u a l l y conferred by the Royal prerogative and such 9 claims were to be one of the issues of the American Revolution. (5) "that the laws of a conquered country continue i n force, u n t i l they are altered by the conqueror: the absurd exception as to pagans, mentioned i n Calvin's case, shows the u n i v e r s a l i t y and antiquity of the maxim. For that d i s t i n c t i o n could not e x i s t before the C h r i s t i a n aera; and i n a l l p r o b a b i l i t y arose from the mad enthusiasm of the Croisades. In the present case the c a p i t u l a t i o n expressly provides and agrees, that they s h a l l continue to be governed by t h e i r own laws, u n t i l His Majesty's further pleasure be known." Cote notes two exceptions to this proposition: ( i ) Although pagan law as such can survive, and has i n fac t been provided for i n Asian communities with d u a l i t y of law, barbaric rules such as are against public p o l i c y or contrary to r e l i g i o n or anything malum i n se are abrogated; 10 and ( i i ) C o n s t i t u t i o n a l law of the former monarch cannot be retained, p a r t i c u l a r l y as i t a f f e c t s the Crown's p o s i t i o n i n respect of the Courts and government. 11 Some changes to English Law are necessary i n a conquered country. Cote raises two questions r e l a t i v e to t h i s . He asks f i r s t , who may a l t e r the law i n i t i a l l y i n force? 27. Parliament has sovereign power over B r i t i s h possessions as has the l o c a l l e g i s l a t u r e , and, some r e s i d u a l power remains to the conquering 12 King by v i r t u e of hi s r o y a l prerogative, l i m i t e d by proposition s i x of Lord Mansfield, which i s as follows: (6) "that i f the King (and when I say the King, I always mean the King without the concurrence of Parliament,) has a power to a l t e r the old and to introduce new laws i n a conquered country, this l e g i s l a t i o n being sub- ordinate, that i s , subordinate to h i s own authority i n Parliament, he cannot make any new changes contrary to fundamental p r i n c i p l e s : he cannot exempt an inhabitant from that p a r t i c u l a r dominion; as for instance, from the laws of trade, or from the power of Parliament, or give him p r i v i l e g e s exclusive of his other subjects; ..." Cote's second question i s : When are the prerogative powers transferred to Parliament? He l i s t s f i v e cases i n which this occurs, as follows: (i) when a conquered colony i s granted c o l o n i a l status; ( i i ) when a c o n s t i t u t i o n i s granted, unless the prerogative i s s p e c i f i c a l l y reserved; 13 ( i i i ) with a proclamation promising to c a l l an assembly, even though not yet i n s t i t u t e d ; 14 But he suggests that the prerogative may apply when the l o c a l assembly i s unable to act; ^ (iv) with a charter regulating the courts, an order i n council not being necessary; 16 or (v) with the appointment of a governor i f such delegation i s contained i n hi s commission or i n s t r u c t i o n s . But he notes that the appointment of a governor was not an automatic delegation, even i f the governor's i n i t i a t i v e s were 17 acquiesced i n by the King. 28 The Privy Council has ruled that the rules set out i n Campbell v. H a l l extended to colonies ceded by inhabitants, and not 18 by another r u l e r . Clearly i t i s not applicable to non-British t e r r i t o r i e s such as protectorates, which were r e a l l y i n t e r n a t i o n a l wardships. (b) By settlement and p l a n t a t i o n At common law, English Law was i n force i n s e t t l e d colonies by the fac t of settlement. The King's prerogative did not include the power to l e g i s l a t e f o r a s e t t l e d colony, although i t did include the power to e s t a b l i s h courts to administer English Law, yet another 20 method of reception. The law was stated i n 1693 i n Blankard v. Galdy, as follows: "... i n the case of an uninhabited country newly found out by English subjects, a l l laws i n force i n England are i n force there;" 21 Later, two exceptions were made to this general statement: (1) The requirement that proprio vigore l e g i s l a t i o n must name the foreign plantations i s c l e a r l y implied i n the following q u a l i f i c a t - ion which was formulated i n 1722: "...That i f there be a new and uninhabited country found out by English subjects, as the law i s the b i r t h r i g h t of every subject, so, whereever they go, they carry t h e i r laws with them, and therefore such new found country i s to be governed by the laws of England; though, a f t e r such country i s inhabited by the English, acts of parliament made i n England without naming the foreign plantations, w i l l not bind them..." 22 29.: . (2) An exception was made by Lord Mansfield i n 1769 with respect to s u i t a b i l i t y to the circumstances of a new colony. When considering the a p p l i c a b i l i t y of a p o l i c e statute to Jamaica, he excepted law that was: "... not adapted to the circumstances of a new colony; and therefore no part of that law of England which every colony, from necessity, i s supposed to carry with them at t h e i r f i r s t p l a n t a t i o n . " 23 This exception i s generally treated as two separate questions: What part of the law of England i s of necessity c a r r i e d to a colony? and What circumstances of a new colony are relevant? 24 One author, Dr. S. H. Z. Woinarski, views both as "equivalent i n substance" although d i f f e r e n t i n form. The f i r s t , p u tting the emphasis on English Law - dis t i n g u i s h i n g between what i s general and what i s only of l o c a l s i g n i f i c a n c e ; the other, placing emphasis on the circumstances i n a colony to determine a p p l i c a b i l i t y . The better opinion seems that the two matters should be considered * " 25 separately, p a r t i c u l a r l y i n respect of ;-a cr.eceptipn statute. The phrase "circumstances of a new colony" found a place 2 6 i n the p o l i t i c a l thinking and i n due course was incorporated into enabling charters and statutes providing f o r new colonies, the t h i r d 27 method of introducing English Law. (c) By charters and statutes The o r i g i n a l American colonies were organized^by Imperial 30.. . charters and statutes which usually provided that the laws of the colony should not be repugnant to the Law of England. Later, such documents were used ei t h e r to remove problems i n applying s e t t l e r ' s law, or to organize new colonies and provide f o r the reception of English Law i n such colonies. To determine the c o n s t i t u t i o n a l laws of colonies such as B r i t i s h Columbia, i t i s necessary to consider not only Acts of Parliament at Westminster, l o c a l l e g i s l a t i o n , but also statutory and prerogative instruments made by the Queen i n C o u n c i l . ^ Several problems are inherent i n this method of reception. (i) Some prerogative instruments which introduce English Law were not authorized by st a t u t e . This would r e l a t e to a reception date p r i o r to the 29 B r i t i s h Settlements Act, 1843, and not to a j u r i s d i c t i o n such as B r i t i s h Columbia with reception provisions of a subsequent date. ( i i ) There i s an overlap i n some cases with l e g i s l a t i o n i n force by r i g h t of settlement, but not i n force proprio vigore. In respect of the former Colony of Vancouver Island and the Stickeen t e r r i t o r i e s of B r i t i s h Columbia, discussed i n Chapter II of this t h e s i s , the date provided was a f t e r settlement had occurred. Although English Law would be i n force i n any event by v i r t u e of settlement, the dates are another• complication^. Cote poses a question which i s of some s i g n i f i c a n c e i n B r i t i s h Columbia, " I f at the time of this introduction, there are Imperial statutes i n force i n the colony, which are not i n force i n England; does the introduction of 31 English Law repeal them to the extent they are part of the colony's law?" 30 ( i i i ) Where l o c a l l e g i s l a t i o n has introduced English Law without mentioning statutes or equity what parts of English Law are i n force? 31 This problem i s one of i n t e r p r e t a t i o n . The statutes of introducing English Law are not uniform and each must be interpreted 32 according to i t s terms. In B r i t i s h Columbia the statute i s phrased i n the double negative and that phrasing has been interpreted 33 to a f f e c t the c r i t e r i a of a p p l i c a b i l i t y . (d) By extension of the boundaries or by separation from a Colony This i s a h i s t o r i c a l matter. In B r i t i s h Columbia, boundary extension appended c e r t a i n islands to the colony of Vancouver Island and the Stickeen lands and other lands west of the Rocky Mountains to 33A the o r i g i n a l mainland Colony. Examples of separation occur i n A u s t r a l i a where Queensland separated from New South Wales and Papua 34 New Guinea was separately constituted. New Zealand was both joined 35 with and separated from New South Wales. (e) By establishment of Courts L e g i s l a t i o n for the establishment of courts (as d i s t i n g u i s h - ed from l e g i s l a t i o n merely regulating or r e - e s t a b l i s h i n g courts i n and 36 f o r an e x i s t i n g colony) i s another means of reception. An example i : to be found i n providing that the Courts of Upper Canada should apply 37 to North America's fur trading lands. The Foreign J u r i s d i c t i o n Act, 38 1890, had a s i m i l a r e f f e c t i n respect ©£> protectorates. Such l e g i s - 32 l a t i o n must not be assumed to do more than was intended. L e g i s l a t i o n e s t a b l i s h i n g Vancouver Island's Courts d i d not change the a p p l i c a b l e 39 / law. Cote cautions: " . . . i n the absence of express words i n such l e g i s l a t i o n , there Is no need to read such words as being intended to upset the common-law r u l e s as to what law i s i n fo r c e i n a s e t t l e d or conquered colony. ... the p r e - r o g a t i v e extends to the establishment of courts but not to general l e g i s l a t i o n , e s p e c i a l l y i n a s e t t l e d colony. Therefore many of these instruments which were made under the p r e r o g a t i v e without any Act of Parliament probably could not change the law i n the colony even i f we were to i n t e r p r e t them as p u r p o r t i n g to do so." 40 3. L e g i s l a t i o n i n f o r c e p r o p r i o v i g o r e (a) Background C e r t a i n s t a t u t e s are part of the " I m p e r i a l c h a r a c t e r " ^ of Parliament at Westminster and are not s u b j e c t to i n t e r p r e t i v e r u l e s a p p l i e d to received law as such. Such l e g i s l a t i o n i s i n force i n a colony, or c o l o n i e s , by i t s own s t r e n g t h . P r o p r i o v i g o r e l e g i s l a t - i o n i t s e l f (or by other enabling s t a t u t e ) must provide "by express 42 words or necessary intendment" . that i t s h a l l so be i n f o r c e , whether or not i t i s i n f o r c e i n England and whether i t was enacted before a colony was known or a f t e r the r e c e p t i o n date. Two important s t a t u t e s of t h i s type, each made a p p l i c a b l e p r o p r i o v i g o r e to the whole l e g i s l a t i v e context of the c o l o n i a l empire, p r o s c r i b e the e f f e c t of p r o p r i o v i g o r e l e g i s l a t i o n . The f i r s t important s t a t u t e — An Act to Remove Doubts as to the V a l i d i t y of C o l o n i a l Laws, g e n e r a l l y known as the C o l o n i a l 43 Laws V a l i d i t y Act, 1865 — provided, i n t e r a l i a , that a c o l o n i a l 33 s t a t u t e would be found repugnant to an Imperial s t a t u t e a p p l i c a b l e to a colony p r o p r i o v i g o r e only to the extent of the repugnancy and rega r d l e s s of whether or not the c o l o n i a l s t a t u t e predated the Impe r i a l s t a t u t e . 44 The second s t a t u t e — the St a t u t e of Westminster, 1931 — was enacted i n c o n f i r m a t i o n of the growing autonomy of the c o l o n i e s and of s e v e r a l of them a t t a i n i n g Dominion status f o l l o w i n g the Imp e r i a l Conferences of 1926 and 1931. The S t a t u t e provided t h a t : 1. the C o l o n i a l Laws V a l i d i t y A c t , 1865, should no longer apply to any law made a f t e r the Statut e of Westminster, 1931, by the parliament of a Dominion or by any of the l e g i s l a t u r e s of the Provinces of Canada; 2. p r o p r i o v i g o r e l e g i s l a t i o n should not be enacted to extend to a Dominion or to any Province of Canada "unless i t i s expressly declared i n that Act that the Dominion (or Province) has requested and consented to the enactment thereof"; 3. the powers of a Dominion and of the Provinces of Canada were i n c r e a s e d , by g i v i n g them the power to r e p e a l or amend an Imp e r i a l Act i n so f a r as i t i s a part of t h e i r law p r o p r i o v i g o r e . Some p o s i t i v e step must be taken to p e r f e c t t h i s power. (b) C o l o n i a l sovereignty before the S t a t u t e of Westminster, 1931 The enacting of p r o p r i o v i g o r e l e g i s l a t i o n by Parliament at Westminster pro tanto l i m i t e d the c o n s t i t u t i o n a l power and i n - dependence of the a f f e c t e d c o l o n i e s . Such l e g i s l a t i o n a p p l i e d and the r e f o r e was received whether or not i t f u l f i l l e d the p r e r e q u i s i t e s f o r r e c e p t i o n of E n g l i s h Law and whether or not i t was i n force i n England. 34 The c o l o n i a l l e g i s l a t u r e s , p r i o r to attaining Dominion status, were subordinate to Parliament at Westminster, and t h e i r l e g i s l a t i o n 45 was, u n t i l the Statute of Westminster, 1931, l i m i t e d to s t r i c t l y t e r r i t o r i a l l i m i t s , subject to disallowance, and l i a b l e to be over- ridden by Imperial enactments. When the various colonies were united, the s i t u a t i o n was exactly the same. Begbie, C. J . stated the s i t u a t i o n for B r i t i s h Columbia a f t e r union with Canada: "The question of supremacy i n r e l a t i o n to subjects of l e g i s l a t i o n as d i s t r i b u t e d by the B r i t i s h North America Act arises only between the Dominion Parliament and the P r o v i n c i a l l e g i s l a t u r e . The ^ Imperial Parliament i s sovereign to both." Proprio vigore l e g i s l a t i o n may be received whether or not enacted before a s p e c i f i c colony was known. For example, the Court of Appeal of B r i t i s h Columbia found the Herbalists Act, 1542,^t:o be i n force, i t being extended to: "any parte of the realme of England or within any other the King's domynions". Another example of express words i s found i n the B i l l of Rights, 1688; which extended to "the Kingdoms of England, France and Ireland and the dominions thereunto belonging according to the resolution and desire of the s a i d lords and commons'.".' The presumption that acts of parliament made i n England a f t e r settlement w i l l not apply to the colonies, did not operate i n respect of proprio vigore l e g i s l a t i o n . Such l e g i s l a t i o n was received, even i f enacted after the reception date, provided that i t was applied 49 s p e c i f i c a l l y to the colony i n question, or to colonies generally. 35 The C o l o n i a l Laws V a l i d i t y Act, 1865, c l a r i f i e d this matter for the colonies. The Statute was enacted as a r e s u l t of the repug- nancy cases of South A u s t r a l i a . Boothby, J . " ^ had p e r s i s t e n t l y ruled that many c o l o n i a l enactments were i n v a l i d on the ground of repugnancy to the Law of England — not on the much less r e s t r i c t i v e ground of repugnancy to the l e g i s l a t i o n i n force proprio vigore. The e f f e c t of these judgments was to c r i p p l e the l o c a l l e g i s l a t u r e and the Imperial Parliament passed the 1865 Statute to c l a r i f y the s i t u a t i o n for A u s t r a l - i a and for a l l colonies. In other cases where repugnancy might be an issue, the Imperial Parliament has passed l e g i s l a t i o n declaring the c o l o n i a l act ...51 xn question to be v a l i d . (c) C o l o n i a l Sovereignty a f t e r the Statute of Westminster, 1931 52 By the Statute of Westminster, 1931, the Dominions and the Provinces of Canada — but not Tthe States of A u s t r a l i a — were given i n t e r a l i a the power to repeal proprio vigore l e g i s l a t i o n . To exercise 53 the power, some p o s i t i v e step i s required. Once the Federal or Prov- i n c i a l j u r i s d i c t i o n has l e g i s l a t e d , v a l i d l y occupying the f i e l d previously occupied by the Imperial l e g i s l a t i o n , the Imperial l e g i s - l a t i o n i s repealed, a l t e r e d , varied or modified by the l o c a l l e g i s l a t i o n . The Federal Parliament has removed the r i g h t of appeal to 54 the Privy Council, an appropriate Federal head of j u r i s d i c t i o n . However, reallignment of the l e g i s l a t i v e d i v i s i o n between the Federal and P r o v i n c i a l a u t h o r i t i e s , which were ex c l u s i v e l y provided for and 36 set up i n the B r i t i s h North America Act, 1867,"^ requires j o i n t 5 6 action by both the Parliament of Canada and Parliament at Westminster. Con s t i t u t i o n a l amendment f o r Canada i s a matter of some complexity. By convention, Parliament at Westminster i s precluded from enacting any amendment without formal request from the f e d e r a l Government, probably by j o i n t address of both Houses. The concurrence of the Provinces i s a matter of some concern which may not be s c r u t i n i z e d by the Imperial Parliament. If P r o v i n c i a l sovereignty were affected, and they had not been consulted, they would have recourse by protest. In such case, the appropriate channel for such protest i s through the Canadian government.^ I f the power conferred i s not exercised, the proprio vigore l e g i s l a t i o n remains i n force. 58 O t e r i and O t e r i v. R., a case heard by the Privy Council i n 19 76 on appeal from the F u l l Court of Western A u s t r a l i a , s p e c i a l leave having been granted by Order i n Council, i l l u s t r a t e s a problem which can a r i s e i f such l e g i s l a t i o n has "ambulatory e f f e c t " . A charge of theft 59 under the Theft Act, 1968 (Imp.) was l a i d i n Western A u s t r a l i a , the offence having occurred 22 miles from shore on a boat owned by the defendants, naturalized A u s t r a l i a n c i t i z e n s , who were resident i n Western A u s t r a l i a . Lord Diplock, delivered the judgment of the Board, dismissing the appeal and upholding the conviction, notwithstanding the Statute of Westminster, 1931, and the creation of separate A u s t r a l - i a n c i t i z e n s h i p by the B r i t i s h N a t i o n a l i t y Act, 1948 (Imp.^ The de c i s i o n depended on four propositions: 37 1. The ship was a B r i t i s h ship as she i s owned by " B r i t i s h s u b j e c t s " as defined by the B r i t i s h N a t i o n a l i t y A c t , 1948 (Imp.), s e c t i o n 2. The ship was not r e g i s t e r e d under the Merchant Shipping A c t , 1894 (Imp.),61 and was by s e c t i o n 72 deprived of the b e n e f i t s , p r i v i l e g e s , advantages and p r o t e c t i o n enjoyed by B r i t i s h s h i p s , but non-recognition d i d not deprive the ship of her B r i t i s h n a t i o n a l i t y . 61 2. The c r i m i n a l law of England extends to B r i t i s h ships on the "high seas". The Court s a i d : "... at common law a B r i t i s h ship f e l l under the p r o t e c t i o n of the sovereign; those on board her were w i t h i n the King's peace and subject to the c r i m i n a l law by which the King's peace was preserved. ... the a p p l i c a b i l i t y of E n g l i s h law to "treasons, felonyes, r o b b e r i e s , murders and confederacies ... committed upon the sea" was recognized by a s t a t u t e of 1536. "An Acte f o r the punysshement of Pyrotes and Robbers of the Sea". The Offences at Sea Act 1799 was but expository of the common law i n p r o v i d i n g "that a l l and every Offence and Offences, which a f t e r the passing of t h i s A c t , s h a l l be com- mitted upon the High Seas, out of the Body of any County of t h i s Realm, s h a l l be, and they are hereby declared to be Offences ... l i a b l e to the same punishments r e s p e c t i v e l y as i f they had been com- mitted upon the Shore." This i s the only p a r t of the Act of 1799 which was l e f t unrepealed by the C r i m i n a l Law Act 1967 (Imp.). I t i s s t i l l i n f o r c e i n Western A u s t r a l i a . I t i s , i n t h e i r Lordships' view, ambulatory i n i t s e f f e c t , w i t h the consequence that when a new offence i n En g l i s h law i s created by a s t a t u t e of the United Kingdom Parliament i t ipso f a c t o becomes an offence i f i t i s committed on a B r i t i s h s h i p unless the extension of the s t a t u t e to B r i t i s h ships i s excluded by express words or by necessary i m p l i c a t i o n . Such an i m p l i c a t i o n cannot, i n t h e i r Lordships' view be drawn from the f a c t that the Theft Act 1968 (Imp.) does not apply to Scotland or Northern I r e l a n d . As w i t h A u s t r a l i a , there i s not a s i n g l e c r i m i n a l law that i s common to the whole of the United Kingdom; and i t has always been the c r i m i n a l law of England that was a p p l i e d to persons on B r i t i s h ships w i t h i n the j u r i s d i c t i o n of the Admiralty. 38 "... a l l offences committed on board B r i t i s h ships on the high seas are w i t h i n the c r i m i n a l j u r i s d i c t i o n of the Admiralty — though i n the United Kingdom the Admiralty c r i m i n a l j u r i s d i c t i o n during the course of the nineteenth century became e x e r c i s a b l e through the ordinary c r i m i n a l c o u r t s 6 2 3. Offences which are committed on B r i t i s h ships are w i t h i n the c r i m i n a l j u r i s d i c t i o n of the Admiralty; and that t h i s was the case "though i n the United Kingdom the Admiralty c r i m i n a l j u r i s d i c t i o n during the course of the nineteenth century became e x e r c i s a b l e through the ordinary c r i m i n a l c o u r t s . " 63 4. In Western A u s t r a l i a , the e x e r c i s e of the j u r i s d i c t i o n i s regulated by the Admiralty Offences ( C o l o n i a l ) Act, 1849 (Imp.), 64 which i n e f f e c t provided that i f an offence were not punishable under the law of Western A u s t r a l i a , punishment would correspond most n e a r l y to the Punishment to which a person would have been l i a b l e i f the offence were t r i e d i n England. The "ambulatory e f f e c t " of the 1799 S t a t u t e 6 5 a p p l i e d a .1968 C r i m i n a l S t a t u t e , i n force i n England, to a s h i p which although r e g i s t e r e d i n A u s t r a l i a was not r e g i s t e r e d under the p r o v i s i o n s of the Merchant Shipping A c t , 1894 (Imp.). The v e h i c l e of a p p l i c a t i o n was the 1894 S t a t u t e and the B r i t i s h N a t i o n a l i t y Act, 19 48 (Imp.). Although the i s s u e i s r a i s e d w i t h respect to Western A u s t r a l i a , which was not granted powers of r e p e a l by the p r o v i s i o n s of the S t a t u t e 66 of Westminster, 1931, the r e s u l t would presumably be s i m i l a r where an empowered l e g i s l a t u r e , such as Canada and the p r o v i n c e s , has f a i l e d to act. The e f f e c t of t h i s case presents one of the best arguments f o r r e s o l v i n g the matters i n c i d e n t a l to the r e c e p t i o n of E n g l i s h Law. 4. What parts of E n g l i s h Law are received? (a) Statutes 39 (i) Is there a cut-off date? At what date i s statute law i n England to be ascertained: the date of settlement or foundation of the colony, the date of i n s t i t u t i o n of the f i r s t l e g i s l a t u r e , or the date chosen by l e g i s - l a t i o n ? The following general propositions are s e t t l e d : (1) Statutes enacted subsequent to the date of settlement do not apply, unless extended to the colony by act of Parliament, by order i n c o u n c i l , or by an a f f i r m a t i v e act of l o c a l l e g i s l a t i o n , such as the English Law Act. The following exceptions must be noted: 1. Statutes a f t e r the date of settlement merely re s t a t i n g the common law at the appropriate date w i l l be i n force; 67 and 2. Statutes a f t e r the date of settlement i n force i n a colony, and by reference contained i n a proprio vigore statute, when j u r i s d i c t i o n f o r the f i e l d has not been assumed pursuant to the powers granted by the Statute of Westminster, 1931-, w i l l apply. S i m i l a r l y , statutes with an "ambulatory e f f e c t " , must be s p e c i a l l y considered. 68 (2) The repeal i n England of a s t a t u t e does not e n t a i l i t s repeal elsewhere. The d e c i s i v e matter i s whether i t was i n force i n 69 England on the reception date. ( i i ) Which English Statutes are received? Assuming a precise date has been ascertained for reception, i t i s possible to determine a l l statutes of the Imperial Parliament i n force on that date. From this l i s t , to i s o l a t e the acts of general a p p l i c a t i o n i n force i n England, which must be considered for reception, 40 these groups must be extracted: 1. proprio vigore l e g i s l a t i o n r e l a t i n g to a s p e c i f i c colony or colonies, but not to the colony under consideration; 2. proprio vigore l e g i s l a t i o n extending to a l l colonies, and p a r t i c u l a r l y to the colony i n question. Any )( proprio vigore l e g i s l a t i o n , "ambulatory i n -its effect"70 should be s p e c i a l l y noted; and 3. l o c a l acts which are not of general a p p l i c a t i o n and re l a t e s o l e l y to l o c a l circumstances i n England and have no relevance outside England. The determination of whether an act i s of general a p p l i c a t i o n , the law of England which every colony from necessity receives, or whether i t i s a law of l o c a l p o l i c y which relates s o l e l y to l o c a l circumstances i n England,. having no relevance outside England, i s often considered i n conjunction with a discussion of circumstances and l o c a l conditions i n the c o l o n y . ^ (b) Common Law It has always been accepted that the common law was more re a d i l y received than statute law. I t was assumed that"'(a)n E n g l i s h - man going to found a colony may be supposed to know the common law, 72 by common sense...'.' Its reception has been described by Ha l l i b u r t o n , 73 C. J . i n Uniacke v. Dickson, a 1848 decision of the Nova Scotia Supreme Court i n these terms, "Among the colonists themselves there has generally existed a strong d i s p o s i t i o n to draw a d i s t i n c t i o n between the common and the statute law. As a code, they have been disposed to adopt the whole of the former, with the exception of such parts only as were obviously inconsistent with t h e i r new situa t i o n s ... 41 ...As i t respects the common law, any exclusion formed the exception; whereas i n the statute law, the reception formed the exception ... ... the d i s t i n c t i o n exists i n the very nature of things, and i s derived from the o r i g i n of the two codes. The common law had i t s foundation i n those general and immutable p r i n c i p l e s of j u s t i c e which should regulate the intercourse of men with men, wherever they reside. The statute law emanates from the wisdom of the l e g i s l a t u r e of the day, varies with varying circumstances and consists of enactments which may be b e n e f i c i a l at one time and injurious at another — which might advance the inter e s t s of one community, and prove ruinous to those who were d i f f e r e n t l y s i tuated ..." Various facts j u s t i f y this more general acceptance. The common law was prized by Englishmen not only f o r i t s a c c e s s i b i l - i t y , but also for i t s v e r s a t i l i t y i n adaptation by j u d i c i a l i n t e r - p r e t a t i o n even to c o l o n i a l s i t u a t i o n s , provided there was not "obvious inconsistency" i n the new colony. Moreover, the statutes 74 were p r o l i x and, p r i o r to 1870 when the f i r s t Index was published, were d i f f i c u l t to ascertain. They were l a r g e l y inaccessible i n the colonies, p a r t i c u l a r l y statutes passed a f t e r a distant colony was s e t t l e d . Two problems r e l a t i v e to the reception of common law have however emerged and been developed i n our Courts: (i ) Is there a cut-off date for reception of common law? Opinions d i f f e r as to whether there i s a cut-off date f o r the reception of common law. Two scholars, A l l o t t and P a r k ^ both w r i t i n g i n respect of A f r i c a n law (where the reception of English Law has received much att e n t i o n with recent developments 42 i n emerging n a t i o n a l i s m and accommodation of customary law) have r e s p e c t i v e l y presented the p o s i t i v e and negative answers to t h i s question. The p o s i t i v e argument of A l l o t t i s that the common law can be ascertained at a p a r t i c u l a r date and that t h i s should be done; Park says that such i s not the case. The f o l l o w i n g are f a c t o r s to be considered: 1. At the time the c o l o n i e s were c o n s t i t u t e d , i t was intended that appeal would be taken to England — to the King i n C o u n c i l , and l a t e r t^. the P r i v y C o u n c i l ; 2. The d o c t r i n e of precedent was i n f o r c e and remained i n f o r c e at l e a s t u n t i l 1949 ( f o r Canada). The o b l i g a t i o n to adhere to E n g l i s h d e c i s i o n s i s i n p o t e n t i a l c o n f l i c t w i t h the idea of a f i x e d date, unless an e a r l i e r d e c i s i o n to the same e f f e c t can be found. 77 3. No i n t e n t i o n e x i s t e d , apparently, to cut o f f t h i s access to the growth of the common law; 78 4. B r i t i s h Columbia and other c o l o n i a l j u r i s d i c t i o n s h a b i t u a l l y r e f e r to E n g l i s h d e c i s i o n s a f t e r the r e c e p t i o n date. These considerations support Park's argument, as do two B r i t i s h Columbia d e c i s i o n s . Wood, J . of the Supreme Court, expressed t h i s o p inion i n 1955: " I do not agree that the common law i s any 79 more s t a t i c i n B r i t i s h Columbia than i n England." A d e c i s i o n 80 of the same Court i n 1963, Re L o t z k a r , declared the r u l e i n Allhusen v. W h i t t e l l i n f o r c e , noting that the 1867 date of the case was i m m a t e r i a l , p a r t i c u l a r l y when the p r i n c i p l e behind the case had been enunciated p r i o r to the. date of the i n t r o d u c t i o n of E n g l i s h Law. This l a s t q u a l i f i c a t i o n somewhat weakens the a u t h o r i t y 43 of t h i s case i n support of Park's argument r e j e c t i n g a c u t - o f f date. Some support can be found f o r A l l o t t ' s argument that the c u t - o f f date i s the r e c e p t i o n date provided by s t a t u t e i n the A l b e r t a case, Rex v. Cyr. This 1918 d e c i s i o n of the A l b e r t a Supreme Court, Appeal D i v i s i o n , considered an appeal from a c o n v i c t i o n made by a woman magistrate (on grounds that a woman was i n e l i g i b l e f o r j u d i c i a l o f f i c e ) . S t u a r t , J . d i s t i n g u i s h e d the E n g l i s h decisions on the b a s i s of l o c a l circumstances but s a i d of the common law, "In my o p i n i o n i n a matter of t h i s k i n d the Courts of t h i s Province are not i n every case to be h e l d s t r i c t l y bound by the d e c i s i o n s of E n g l i s h Courts as t o the s t a t e of the common law of England i n 1870. We are at l i b e r t y to take cognizance of the d i f f e r e n t c o n d i t i o n s here, not merely our p h y s i c a l c o n d i t i o n s , but the general conditions of our p u b l i c a f f a i r s and the general a t t i t u d e of the community i n regard to the p a r t i c u l a r matter i n qu e s t i o n . " I t i s a p e c u l i a r i t y of cases where the r e c e p t i o n date i s adhered to and a common law p r i n c i p l e not a p p l i e d , post r e c e p t i o n date cases 82 are r e f e r r e d t o , due to the operation of the d o c t r i n e of precedent. The question may simply be resolved on the reasoning that i t i s not necessary to c u t - o f f the common law, and the respect f o r i t i s d e c i s i v e and overcomes the i n f l u e n c e of a re c e p t i o n 83 s t a t u t e . ( i i ) J u d i c i a l Development l i m i t i n g general acceptance of common law Although general acceptance of common law i s i m p l i c i t i n 84 most cases, the courts have l i m i t e d t h i s general acceptance f o r two reas ons: 44 (1) The exception noted by H a l l i b u r t o n , C. J . , "such parts only as were obviously i n c o n s i s t e n t w i t h t h e i r new s i t u a t i o n " 85 Ge n e r a l l y , t h i s exception has developed w i t h the reasoning that the law i s recei v e d but i s i n a p p l i c a b l e to the new s i t u a t i o n . Such obvious i n c o n s i s t e n c y has been found (a) i n the water cases: The p h y s i c a l d i f f e r e n c e s of Canadian r i v e r s and t h e i r 86 n a v i g a b i l i t y , and the extensive s i z e of the Canadian lakes have been the b a s i s f o r exceptions i n respect of the common law. 87 N a v i g a b i l i t y , and not the E n g l i s h d i v i s i o n of t i d a l and n o n - t i d a l , has become the d e c i s i v e f e a t u r e i n applying the common law pre- sumptions w i t h regard to water. The ad medium f i l u m aquae d o c t r i n e has been deemed i n a p p l i c a b l e to a "highway of t r a n s p o r t - 88 a t i o n " such as the Red River i n a 1921 Manitoba d e c i s i o n . This case d i s t i n g u i s h e d on the b a s i s of d i f f e r e n t r e c e p t i o n p r o v i s i o n s a previous Ontario d e c i s i o n , Keewatin Power Co. v. Town of Kenora, which had h e l d that the d o c t r i n e was i n fo r c e i n respect of a non- 89 t i d a l r i v e r , whether navigable or not. I n e f f e c t , the Manitoba Court adopted the t r i a l judgment of A n g l i n J . i n the Ontario case. In the Keewatin case, A n g l i n J . had found the E n g l i s h common law r u l e i n c o n s i s t e n t w i t h and u n s u i t a b l e to l o c a l c o n d i t i o n s , f o r reasons e q u a l l y p e r t i n e n t to 1792 (the Ontario r e c e p t i o n date) and 1907 (the date of the case). He found the common law r u l e arose i n England at a time when the t i t l e to beds of n o n - t i d a l r i v e r s had long s i n c e vested, a c o n d i t i o n not found i n On t a r i o , and r u l e d the Crown owned the alveus of the Winnipeg River, even though n o n - t i d a l . The decision was reversed on appeal on the grounds that English Law was introduced and was i n force, including the presumption that prima f a c i e adjoining owners owned ad medium fil u m aquae, i n non- t i d a l waters, notwithstanding the' n a v i g a b i l i t y of the r i v e r i n question. This decision of the Court of Appeal has been followed by the Supreme Court finding ownership i n the adjoining owner out to 90 the middle of the stream. In a B r i t i s h Columbia case, the doctrine was applied not- withstanding dissent on the grounds that although the ru l e was introduced i n B r i t i s h Columbia, which i s the pertinent point for thi s t h e s i s , i t was rebuttable where t i t l e had been taken under the 91 Torrens System, i n force by subsequent l o c a l l e g i s l a t i o n (the second exception). In Canada, such " s p e c i a l circumstances" have been dealt with by statute i n many cases, p a r t i c u l a r l y i n the numerous enact- 92 ments r e l a t i n g to water. The d i s t i n c t i o n made as to the n a v i g a b i l - i t y and ownership of beds of non-tidal r i v e r s i s s i m i l a r to that used to d i s t i n g u i s h highways i n Canada from those i n England. (b) i n the highway cases: 93 Fleming v; Atkinson, a 1959 Ontario case involved the f a i l u r e of a farmer with lands adjoining the highway to prevent h i s animals from straying thereon. As a r e s u l t , a user of the highway suffered i n j u r y . The r e s p o n s i b i l i t y for the highways was distinguished 46 by the Court on the basis of the d i f f e r e n t conditions i n England where the highways are dedicated, providing l i m i t e d r i g h ts to the user, and i n Ontario where the highways were created by survey and not dedicated. The majority decision was that the h i s t o r i c a l basis for the common law ru l e never existed. The Supreme Court of Canada agreed with the decision of the Court of Appeal but t h e i r reasoning was somewhat d i f f e r e n t i n considering the common law 'as stated i n the 1947 English 94 case, Searle v. Wallbank. The Court of Appeal distinguished the Searle case on the grounds that i t concerned a s i n g l e animal and not the herd that had strayed onto the Ontario highway, and then attached l i a b i l i t y for the herd to the adjoining owner. The Supreme Court distinguished the Searle case on the basis of the p e c u l i a r i t i e s of English highway dedication and also on the basis of modern t r a f f i c conditions creating a duty on the adjoining owner, to which the ordin- ary p r i n c i p l e s of negligence were applied. The Court did not s p e c i f - i c a l l y deal with the 1792 reception statute. I t should be noted that Rand, J. noted h i s t o r i c a l differences with respect to highway owner- ship but did not adopt the usual formula that the r u l e i s received, but i s not applicable due to d i f f e r e n t l o c a l circumstances. In the two dissenting judgments, Locke, J . sa i d he did not consider i t was necessary to rule on the matter, however Cartwright, J . s a i d , "I can f i n d no s u f f i c i e n t reason i n the h i s t o r i c a l differences between the ways i n which highways came into existence i n England and i n Ontario to warrant the formulation i n the two j u r i s d i c t i o n s of d i f f e r e n t rules of law as to the duty of the owner ... abutting a highway." 94^ 47 The various judgments ,therefore, do not support the case as strong authority f o r the s u i t a b i l i t y of l o c a l conditions being a governing factor. In B r i t i s h Columbia a s i m i l a r r e s u l t was reached more 95 strongly i n City of Vancouver v. William A. McPhalen. This 1911 case was an appeal from the B r i t i s h Columbia Court of Appeal. The Court dealt with the s p e c i f i c p r o v i s i o n i n the Douglas Proclamation and found "There can ... be l i t t l e doubt that the common law rule under which the inhabitants of parishes through which highways passed were responsible for t h e i r repair was never introduced i n t o B r i t i s h Columbia." Duff, J. considered the state of a f f a i r s at the date of the Proclam- ation, 1858, when the Government of necessity assumed the maintenance of the highways which had been b u i l t by a detachment of B r i t i s h engineers: the physi c a l d i f f i c u l t i e s of the country, sparse s e t t l e - ment, and the need f o r roads outside the municipal areas. The Court concluded that the common law rule "has never been acted upon and was, i n 1858, and s t i l l i s , from l o c a l circumstances i n a p p l i c a b l e " . In this case the Court again referred to many cases which had been heard i n England a f t e r 1858. Here i n 1858 and i n 1911 l o c a l circumstances were d i f f e r e n t from England. E l s e - M i t c h e l l has suggested that "... the t r a d i t i o n a l rights of the common law which Englishmen claimed as t h e i r b i r t h r i g h t were dormant rather than extinguished ..." i n the early days of c o l o n i a l development, and from time to time the occasion arose for invoking 96 them. This proposition would not of course apply where the l o c a l 48 l e g i s l a t u r e had enacted contrary p r o v i s i o n s , the second exception to the general acceptance of common law. (2) The exception u s u a l l y found i n the r e c e p t i o n s t a t u t e s , i n a p p l i c a b i l i t y of common law because of l o c a l l e g i s l a t i v e enactments. The matter was suggested by H a l l i b u r t o n , C.J., i n Uniacke v. Dickson, p r e v i o u s l y r e f e r r e d t o , when he s a i d : "Every year should render the Courts more cautious i n the adoption of laws that had never been p r e v i o u s l y introduced i n t o the colony, f o r prudent judges would remember that i t i s the province of the Courts to declare what is_ the law, and of the l e g i s l a t u r e to decide what i t s h a l l be." 97 Two A l b e r t a cases have decided to exclude the common law on the b a s i s of subsequent l e g i s l a t i v e enactments. In Quinn v. 98 Beales, a 1924 case, the Court found the reason f o r a common law r u l e i n England was destroyed by P r o v i n c i a l enactment. In re Simpson 99 Estate considered the case of a r u l e which was a c t u a l l y capable of being acted upon here, the Rule i n Sh e l l e y ' s Case. The A l b e r t a Court adopted the reasoning of Robinson, C.J. of The Court of Queen's Bench of O n t a r i o , who had s a i d , when co n s i d e r i n g the Mortmain A c t s , they were, "... a l l a c t u a l l y capable of being acted upon i n t h i s country, but which, having been passed upon grounds and f o r purposes p e c u l i a r to England and e i t h e r wholly or i n a great degree f o r e i g n to t h i s colony, have never been attempted to be enforced here, and have never been taken to apply to us...." 100 The Simpson Case found the Rule i n Shelley's Case was not " s u i t a b l e " and found that even i f the Rule had been introduced, i t 49 would be abrogated by the Local Acts i n Force i n Alberta i n 1927. 5. What s p e c i a l parts of English Law are received? Coke, w r i t i n g i n the early seventeenth 'century, referred to fourteen "divers lawes within the realme of England" and l i s t s them, including the law of the crown, of Parliament, of nature, statute law, customs, e c c l e s i a s t i c a l law, and the common law of England."^"*" Early c o l o n i a l charters provided that the c o l o n i a l 102 l e g i s l a t i o n should not be repugnant to English Law. At a l a t e r date, i t was the p r a c t i c e to apply English Law to the various colonies as at a s p e c i f i c date. This method of applying law to the colonies 103 has been c r i t i c i z e d : however, the status of the statute law i n 104 England i n the period before the Revision of 1865 was such that probably no other method was f e a s i b l e . The s p e c i f i c p r o v i s i o n f o r B r i t i s h Columbia was of "the C i v i l and Criminal Laws of England, as the same existed on the 19th day of November, 1858, and so f a r as the same are not from l o c a l circumstances inapplicable"."'"^ 5 What s p e c i a l parts of English Law are included i n this provision? ( i ) Equity Equity, l i k e common law, i s a case law system, which developed i n t o a w e l l established and reasonably ascertainable body of law. O r i g i n a l l y , i t was based on "fairness 1, 1 however i n l a t e r years the most di s t i n g u i s h i n g feature that remained was that i t was administered by the Chancellor i n h i s own chancery court. That s i t u a t i o n remained u n t i l 1875 when the two court systems i n England were combined. The reception provisions for B r i t i s h Columbia and the 50 provision of a s i n g l e court for the colony predate the Judicature 10 6 Act, 1873 which statute consolidated i n one court of judicature i n England and vested i n that court the j u r i s d i c t i o n previously vested i n the several merged courts: "the high court of chancery of England, the court of queen's bench, the court, of common pleas at Westminster, the court of exchequer, the high court of admiralty, the court of probate, the court of divorce and matrimonial causes, and the London court of bankruptcy" The Judicature Act contains the following p r o v i s i o n : "In every c i v i l cause or matter commenced i n the high court of j u s t i c e , law and equity s h a l l be administered by the high court of j u s t i c e and the court of appeal respectively Falcoribridge has suggested that the general reception of English Law did not include equity, unless chancery courts were e s t a b l i s h e d . ^ ^ An argument can be made that since 1615,^^ equity had become the law of the land i n England, although admin- i s t e r e d by separate courts. The Chancellor applying equitable p r i n c i p l e s to common law rules to e f f e c t b e t t e r j u s t i c e and prevent r i g i d i t y i n the common law. Cote argues i n t h i s vein, that "laws" can be interpreted to include equity and presents the view that Falconbridge i s wrong and that equity i s an i n t e g r a l part 109 of English Law, and the contrary i n t e r p r e t a t i o n i s unduly narrow. For a reception date p r i o r to 1873, the narrow view of Falconbridge may be more pr e c i s e , rebutted by the granting of chancery j u r i s d i c t i o n or by the establishment of chancery courts. 51 (a) What then i s the s i t u a t i o n i n B r i t i s h . Columbia? The various forms of the E n g l i s h Law Act introduced "the C i v i l and C r i m i n a l Laws of England,"^"^not merely common law. The Supreme Court of C i v i l J u s t i c e of the Colony of Vancouver I s l a n d , s p e c i f i c a l l y had j u r i s d i c t i o n i n a l l matters of law and equity."'""'""'' The Vancouver I s l a n d C i v i l Procedure Act, 1861,"'""'' introduced the E n g l i s h s t a t u t e s d e a l i n g w i t h common law procedure passed i n 1852, 1854 and 1860 i n England, and provided that the r u l e s of the E n g l i s h High Court of Chancery should r e g u l a t e the proceedings of the Supreme Court s i t t i n g i n Equity. The powers of the Chief J u s t i c e i n c l u d e d the power to amend such r u l e s i n s p e c i a l circum- stances at law or i n equ i t y . I n mainland B r i t i s h Columbia, the 1859 Proclamation provided, i n t e r a l i a , that The Supreme Court of C i v i l J u s t i c e of B r i t i s h Columbia, "... s h a l l have complete cognizance of a l l p l e a s , whatsoever, and s h a l l have j u r i s d i c t i o n i n a l l cases, c i v i l as w e l l as c r i m i n a l , a r i s i n g w i t h i n the s a i d Colony of B r i t i s h Columbia." 114 Such p r o v i s i o n s appear to rebutt Falconbridge's suggestion, i f i t i s i n f a c t v a l i d . I n the p e r i o d between 1888 and 1897, B r i t i s h Columbia's Consolidated Statutes included the Law and Equity A c t . I t s p r o v i s i o n s were based f o r the most pa r t on secti o n s which had been drawn from Imperial Statutes and the Ontario S t a t u t e . In the 189 7 R e v i s i o n of the s t a t u t e s , i t s p r o v i s i o n s were absorbed i n the Supreme 52 Court Act save for two sections which were transferred to the Insolvent Estates Act and the Aliens A c t . 1 1 6 ( i i ) E c c l e s i a s t i c a l Law Blackstone's view of the a p p l i c a b i l i t y of e c c l e s i a s t i c a l law was that "the mode of maintenance f o r the established clergy, the j u r i s d i c t i o n of s p i r i t u a l courts, and a multitude of other provisions, are neither necessary nor convenient f o r them and therefore are not i n force". A 1857 case, R. v. Eaton College determined that although by Royal prerogative the Queen could name Bishops, unless forbidden to do so by statute, i n colonies without established churches the Bishop so named had no s p e c i a l powers such as he would have had i f the church had been established. The Church of England was not established i n B r i t i s h Columbia. The Courts have indicated that the church l e g i s l a t i o n i n force i n England may not extend here, but there i s an i n d i c a t i o n that i n matters within the church, and not with r e l a t i o n to the church and the public generally, such l e g i s l a t i o n would be taken as 119 a guide. Begbie, C. J . i n Bishop of Columbia v. Cridge an 1874 case which asked the C i v i l Court to support a decision of an e c c l e s i a s - t i c a l inquiry commission, said when considering the Church D i s c i p l i n e 120 Act, that i t i s not law at l e a s t i n i t s e n t i r e t y , but pointed out that i t i s good law, good sense, and convenient law and that "the s p i r i t , though not the l e t t e r , of the Act i s to be adhered to. 53 ... i t i s to be taken as a guide". As e c c l e s i a s t i c a l courts handled probate and n u l l i t y 121 u n t i l 1857,s such j u r i s d i c t i o n was a problem for colonies with a p r i o r reception date. In the case of Vancouver Island, s p e c i f i c p r o v i s i o n was made giving the Court of Record j u r i s d i c t i o n " i n matters C i v i l and Criminal, and such equitable and e c c l e s i a s t i c a l J u r i s d i c t i o n i n 1848. These matters were therefore s p e c i f i c a l l y 122 provided for. Colonies such as B r i t i s h Columbia with a reception date a f t e r 1857, do not have such problems. ( i i i ) L e g i s l a t i o n other than Acts of Parliament The reception of statute law has been referred to general- ly and w i l l be discussed i n more d e t a i l i n Chapter IV. L e g i s l a t i o n other than Acts of Parliament presents another facet to the reception problem. Cote postulated this question, "Could v a l i d l e g i s l a t i o n under the prerogative, or subordinate l e g i s l a t i o n by delegated authority under an Act, be received?" 123 In Reynolds v. Vaughan, an 1872 decision, Begbie, C. J . ruled that an order-in-council issued i n England i n 1856, and not extended to the colony proprio vigore, was not i n force. He interpreted the words " c i v i l and criminal laws of England" to mean "common and statute law, and not orders-in-council, although issued under the authority of an Act of Parliament". He continued, "An Englishman going to found a Colony may be supposed to know the Common Law, by common sense, and to carry the Statutes ( i n the form of Chitty) 54 i n h i s hands. But Orders i n Council are something extra. I conceive that, though Statute laws may be taken to be i n force i n a colony proprio vigore, yet Orders i n Council under powers i n a statute, l i k e orders of Court under s i m i l a r powers, would require to be promulgated anew by the Legislature here, or by a General Order here." 124 An example of such a proprio vigore provision i s found 125 i n a 1863 Imperial order-in-coun c i l , which provides that Letters Patent take e f f e c t i n colonies when made known there. (iv) C o n s t i t u t i o n a l law Cons t i t u t i o n a l law applies i n both s e t t l e d and conquered colonies. However, i n respect of s e t t l e d colonies the better view as expressed by Cote' i s that a s e t t l e d colony receives the roy a l prerogatives, except those not e s s e n t i a l to Sovereignty, and except those unsuitable to the colony. With respect to the l e g i s l a t i v e d i s t r i b u t i o n which exists i n a fe d e r a l s t a t e , he notes "the Crown's rights undergo a s i m i l a r d i s t r i b u t i o n and the Crown i n each r i g h t receives the prerogatives and duties appropriate to i t s property ..126 and l e g i s l a t i v e competence . The d i s t i n c t i o n i s drawn by the Courts as to property which has vested, and that which has not. The judgments i n the recent Reference re the S t r a i t of Georgia to the B r i t i s h Columbia Court of Appeal follows the common law rules as to vesting of property i n 127 accordance with the d i v i s i o n between the two l e g i s l a t u r e s . This i s however to be distinguished from a case where a transfer i s made from one l e g i s l a t u r e to the other. The Courts, again i n accord with the Law of England, require that the i n t e n t i o n to transfer must be 55 expressed or necessarily implied. An example of this i s found i n a B r i t i s h Columbia case determining the e f f e c t of a conveyance of public lands to the Dominion and a finding that such conveyance did 12 8 not include the transfer of minerals. The Crown i n i t s various capacities i s represented by the Governor General and by the Lieutenant-Governor. The l a t t e r i s appointed by the Government of Canada, and not by the Sovereign, yet the appointment i s to represent the Sovereign w i t h i n the Province, and to carry out the duties of the Sovereign at the p r o v i n c i a l l e v e l 129 of r e s p o n s i b i l i t y . O r i g i n a l l y , the o f f i c e was the p r i n c i p a l federal check on the p r o v i n c i a l l e g i s l a t u r e s . In 1882 the Governor- General-in-Council, i n a Minute of Council transmitted to the Lieutenant-Governors, noted "The Lieutenant Governor i s not warranted i n reserving any measure for the assent of the Governor General on the advice of h i s Ministers. He should do so i n his capacity of a Dominion O f f i c e r only, and on i n s t r u c t i o n s from the Governor General. I t i s only i n a case of extreme necessity that a Lieutenant Governor should without such i n s t r u c t i o n s exercise his d i s c r e t i o n as a Dominion O f f i c e r i n reserving a b i l l . In f a c t , with f a c i l i t y of communication between the Dominion and p r o v i n c i a l governments such a necessity can seldom i f ever a r i s e . " 130 Thereafter, the reservation on grounds of c o n s t i t u t i o n a l v a l i d i t y has been deemed to be inappropriate, the matter being determined i n the Courts, unless of natio n a l i n t e r e s t . In August, 1958, the B r i t i s h Columbia Mineral Taxation A c t was considered by the Cabinet and i t was decided that the matter 56 was not of " n a t i o n a l i n t e r e s t " which the then M i n i s t e r of J u s t i c e , the Hon. E. Davie F u l t o n , noted must i n c l u d e "matters of p r a c t i c a l or p h y s i c a l e f f e c t " . 1 3 1 The case then went to the Courts f o r d e c i s i o n . (v) Admiralty Law In England the common law courts had j u r i s d i c t i o n w i t h i n 132 the c o u n t i e s , terminating at low water mark. The Admiralty had j u r i s d i c t i o n over the sea outside the county, although there was a concurrent j u r i s d i c t i o n i n parts at l e a s t of t i d a l creeks, e s t u a r i e s 133 and bays. The Sovereign could order the establishment of a V i c e - Admiralty Court i n any Colony, and d i d so i n respect of Vancouver 134 I s l a n d , and l a t e r , i n respect of B r i t i s h Columbia. When such courts were e s t a b l i s h e d , they were I m p e r i a l and not c o l o n i a l courts and administered the Law of England, which accorded w i t h i n t e r n a t i o n a l law. C o l o n i a l j u r i s d i c t i o n i n Admiralty has grown i n s e v e r a l stages. (1) In the f i r s t stage, c o l o n i a l governors were given powers of government that correspond w i t h the common law j u r i s d i c t i o n , Admiralty j u r i s d i c t i o n being reserved to the Lord High Admiral. At t h i s stage, the c o l o n i a l government has no Admiralty j u r i s d i c t i o n because t h i s had not been granted to i t . By L e t t e r s Patent, Vice-Admiralty Courts were created. 135 (2) The Vice-Admiralty Courts A c t , 1832 made s t a t u t o r y p r o v i s i o n f o r the Vice-Admiralty Courts. 136 (3) Admiralty j u r i s d i c t i o n was vested i n the c o l o n i a l courts as to c r i m i n a l matters by the Admiralty 57 Offences (Colonial) Act, 1849. 137 In 1883, consideration was given to the competence of the Canadian government to create Courts which should exercise j u r i s d i c t - i o n in. respect of matters a r i s i n g within the t e r r i t o r i a l waters, and i n some cases beyond. I t was the opinion of the Law O f f i c e r s and Admiralty Counsel that i t would not be within the power of the Canadian Parliament to create a Court which should possess complete Admiralty j u r i s d i c t i o n . The Opinion i s to the following e f f e c t , "The Admiralty Courts have to deal l a r g e l y with foreign ships and questions of i n t e r n a t i o n a l law, and there i s great advantage i n maintaining a uniformity of law and p r a c t i c e i n such matters throughout Her Majesty's Dominions." 138 Problems continued to a r i s e i n respect of the Vice-Admiralty and Admiralty j u r i s d i c t i o n , p a r t i c u l a r l y i n respect of the j u r i s d i c t i o n of the Vice-Admiralty Court which i n some cases was concurrent with the c o l o n i a l c i v i l courts, and as a r e s u l t (4) Admiralty c i v i l j u r i s d i c t i o n was vested i n the c o l o n i a l courts by the Colo n i a l Courts of Admiralty Act, 1890. 139 (5) Co l o n i a l l e g i s l a t i o n had no e x t r a - t e r r i t o r i a l e f f e c t , "except perhaps, i n l i m i t e d cases over i t s own denizens". 140 The Statute of Westminster, 1931, freed the Canadian Parliament but did not release the Canadian Provinces or other A u s t r a l i a n States from the r e s t r i c t i o n of t e r r i t o r i a l i t y i n respect of l e g i s l a t i v e enactments. 141 The whole matter of the reserve of j u r i s d i c t i o n to the Admira has been elaborated as i t i s material to the rel a t i o n s h i p between the Dominion and the p r o v i n c i a l governments and t h e i r divided sovereignty. 58 (vi) Law Merchant Like Admiralty Law, this branch of the law was drawn from i n t e r n a t i o n a l sources, but since the work of Lord Mansfield has been recognized as the Law of England. I t was received i n the colonies as such. ( v i i ) Practice and Procedure Vancouver Island and the o r i g i n a l mainland Colony of B r i t i s h Columbia provided Rules of Court. These Rules i n e f f e c t 144 adopted for the c o l o n i a l courts the pr a c t i c e of England. Af t e r Union the same prac t i c e rules continued. Practicioners i n the Province have p r i n c i p a l l y used the B r i t i s h p r a c t i c e Books, Bullen 145 and Leake and the White Book to supplement the Rules from time to time i n force. Rules of evidence, which, l i k e p r a c t i c e rules, are considered to be a d j e c t i v a l and not substantive, are sui t a b l e for 146 reception. At an early date however, an Evidence Act was pro- vided which made reference not only to the law i n force i n England, 147 but also to that i n force i n Ontario and Canada. Cote notes that p r a c t i c e and procedure of l e g i s l a t i v e 148 assemblies i s not automatically received. Provision was made i n the Colonies with respect to these at an early date and the Imperial Parliament r a t i f i e d at least once a Colo n i a l enactment amending the 149 co n s t i t u t i o n of such assemblies. 59 IV. JUDICIAL INTERPRETATION AS TO RECEPTION OF ENGLISH STATUTE LAW When a body of English Law i s imported e i t h e r by v i r t u e of settlement or by v i r t u e of a reception statute, three q u a l i f i c a t i o n s a f f e c t the reception of English statute law not i n force proprio 150 vigore: (1) s e t t l e r s take with them the law i n force at the date of settlement, not law subsequently enacted; 151 (2) only statutes of general a p p l i c a t i o n are received; and (3) received law i s given e f f e c t , subject to l i m i t a t i o n s and modification of l o c a l circumstances: (i ) of l o c a l statutes i n force; ( i i ) so far only as the circumstances of the t e r r i t o r y and of i t s inhabitants permit; ( i i i ) subject to such q u a l i f i c a t i o n s as l o c a l circumstance render necessary. 152 1. A p p l i c a b i l i t y Prima f a c i e , the more general the extent of the statute as declared by the Imperial Parliament, the more apt i t would be applicable to the colonies. I f a statute merely declares the common law, there i s strong reason to beli e v e i t would be i n force. S i m i l a r l y , remedial statutes which l i m i t , are i n derogation of, or abrogate the common law are generally received. 153 (a) Time to test a p p l i c a b i l i t y (i) In England The date may be the cut o f f date provided for reception (19 November, 1858) or the date the p a r t i c u l a r statute was enacted. The 6Q leading B r i t i s h . Columbia case, In re >lunshi Singh, favours the l a t t e r . In 1914 that case approved the ru l e as stated by Viscount Haldane, L.C. , "... In endeavouring to place the proper i n t e r - pretation on the sections of the statute before the House-sitting i n i t s j u d i c i a l capacity, I propose ... to exclude consideration of everything excepting the state of the law as i t was when the statute was passed, and the l i g h t to be got by reading i t as a whole, before attempting to con- strue any p a r t i c u l a r section. Subject to this consideration, I think that the only safe course i s to read the language of the statute i n what seems to be i t s n a t u r a l sense ..." 154 S i m i l a r l y i n Re Simpson E s t a t e , t h e appellate d i v i s i o n of the Supreme Court of Alberta has decided that the date of enact- ment i s material, because the essence of the problem i s whether the reason for the adoption of the English rule i n question would be equally applicable to conditions i n Alberta. Cote favours the date set for reception, "and therefore the reasons why the rule i n question was retained i n England rather than the reasons for i t s o r i g i n a l development". He also argues that i f the cutr-off date i s used i n England, and the same date i n the colony, the s o c i a l conditions i n both would be more s i m i l a r . What then are the autho r i t i e s f o r the cut-off date i n the colony?"'""'' ( i i ) Irt the colony Five dates may be used i n the colony a. the cut-off date, the date English Law was received, favoured by Blackstone; or b. the date the statute was introduced i n England; or 61 c. the date c o l o n i a l courts f i r s t considered E n g l i s h s t a t u t e ' s a p p l i c a b i l i t y ; or d. the date of the f a c t s g i v i n g r i s e to the issue, arose, which i s favoured by Cote; or e. the date of the proceedings. 157 The f i r s t , the date set f o r the r e c e p t i o n ^ i s important. I t l i m i t s the c l a s s of enactments which can be recei v e d to those i n f o r c e i n England at that time. Thisi view, that the d e c i s i o n date i s t i e d to the date of the r e c e p t i o n l e g i s l a t i o n , ( i n the case of B r i t i s h Columbia the 19th November, 1858) i s accepted i n A u s t r a l i a , as set out i n 1839 by Stephen J . i n Ex parte Lyons, In re Wilson, "... the question whether any p a r t i c u l a r s t a t u t e i s i n force may be determined ... w i t h reference to the date of the New South Wales Act alone. I cannot con- ceive that we are to determine the question, by n i c e e n q u i r i e s from time to time, as to the progress made by the colony i n wealth or otherwise ... there seems to be no ground f o r h o l d i n g , that the question of a p p l i c a b i l i t y was to have reference to the f u t u r e . On the c o n t r a r y , the meaning seems to me p l a i n ; that those laws only would compulsorily be a p p l i e d , which then, at the passing of the Act, be a p p l i e d . For the f u t u r e , as I conceive, a l o c a l l e g i s l a t u r e was created; by which, s t a t u t e s not then capable of a p p l i c a t i o n , were t h e r e a f t e r to be introduced e i t h e r wholly or i n p a r t , as that body might determine ..." I t i s supported by the f o l l o w i n g B r i t i s h Columbia cases: 159 In Brown v. Brown a 1909 case i n v o l v i n g the r i g h t of appeal i n di v o r c e , I r v i n g J . s a i d : "... the jurisprudence came i n as i t stood on 19 Nov- ember 1858 i n s o f a r as not i n a p p l i c a b l e on that p a r t i c - u l a r day and a r i g h t of appeal would be a matter to be de a l t w i t h by the law-making power when the Colony r e - quired a Court of Appeal ..." And i n 1970, i^^the -majority of the Court used 1858 as the date i n d i s t i n g u i s h i n g the I m p e r i a l Poor Laws as, "... a system which could be a p p l i e d only i n a s e t t l e d , organized country, having e s t a b l i s h e d parishes ..." and proceeded to examine l o c a l circumstances i n 1858. The d i s s e n t - i n g judgment of Taggart, J . A. r e f e r r e d t o l o c a l circumstances at both the r e c e p t i o n date and the time of the case, which "... were not November 19th, 1858, and are not now such as to render i n a p p l i c a b l e whole parts of the Poor R e l i e f Laws ..." 161 The use of the r e c e p t i o n date permits of a decisiveness as t o the law i n that a d e c i s i o n made r e l a t i v e to the r e c e p t i o n date i s d e c i s i v e as to r e c e p t i o n and a p p l i c a b i l i t y , subject only t o the c o n s i d e r a t i o n of subsequent l e g i s l a t i o n by the appropriate author- i t y . Kennedy supports t h i s view, "Counsel argues that a p p l i c a b i l i t y or i n a p p l i c a b i l i t y i s determined not as of 1858 when E n g l i s h Law was introduced i n t o B r i t i s h Columbia, but as of the p a r t i c u l a r moment the question comes before the court. The courts " n e i t h e r decide whether (the s t a t u t e ) was a p p l i c a b l e i n 1792 (Ontario) or i n 1858 (B.C.); nor do they assume to prophesy whether i t w i l l be or become a p p l i c a b l e at some future time". Counsel f u r t h e r s t a t e s that a d e c i s i o n holding E n g l i s h L e g i s - l a t i o n i n a p p l i c a b l e i n the colony speaks only as to i t s a p p l i c a b i l i t y "then" (at the time of the d e c i s i o n ) and does not b i n d f u t u r e courts i n d i f f e r e n t times. This p r o p o s i t i o n i s spoken of as "one that has been a c t u a l l y adopted by the courts". With great respect I cannot agree t h a t , i n e f f e c t , B r i t i s h C o l - umbia's E n g l i s h Law Act i s to be i n t e r p r e t e d as a l l o w i n g courts to f i n d that an E n g l i s h s t a t u t e of pre- 1858 vintage i s not " i n a p p l i c a b l e " one week, and i n a p p l i c a b l e the next." 162 63 There are some cases where the date the f a c t s of the case arose must be considered, that i s where a d e c i s i v e event occurred and the law must b e . i n t e r p r e t e d t n e n , 5 as f o r example w i t h respect to the question of harbours at the date of Union of B r i t i s h Columbia 163 w i t h Canada (1871). The Court p r o p e r l y considered l o c a l circum- stances as at the date of the Union (1871), "... at th a t time evidence shows no one there resid e n t ... a s t a t e of nature, compared w i t h the Vancouver Townsite ..." In the r e s u l t , E n g l i s h Bay was not a "harbour" as i t was not one at the date of Union ( 1 8 7 1 ) . t h e r e f o r e f t i t l e to the bed and foreshore remained i n the P r o v i n c e , not passing to the Federal Govern- ment. There was nc/'latent" e f f e c t , a t t a c h i n g to any harbour that becomes a p u b l i c harbour. Much support can be found, however, i n B r i t i s h Columbia de c i s i o n s f o r the other choices. Judges have looked not only to the r e c e p t i o n date, but to conditions i n the province s i n c e that date, and as at the date the issue before the courts arose. Examples supporting the date of the proceedings are, Manson, J . , i n R. v. Columbia Paper, a 1954 case, s a i d , " . . . I f i n d nothing i n the h i s t o r y of our province or of the I s l a n d that suggests there ever were such co n d i t i o n s e x i s t i n g i n B r i t i s h Columbia ..." 164 S i m i l a r l y , i n Sheppard v. Sheppard, i n 1908 he s a i d , w i t h respect to inadequate machinery on the r e c e p t i o n date, "... i f i t i s sound and the t e s t i s to be pinned down to a c e r t a i n and s i n g l e day, the same t e s t must i n e y i t a b l y be applied to a l l other statutes c i v i l and c r i m i n a l : there cannot be one s t r i c t test against the Divorce Act and another lax test i n favour of a l l other statutes; and i f that s t r i c t test i s to be generally applied, then the criminal laws of England, must, for the most part, go by the board, including t r i a l by jury ..." 165 -Bouck, J. i n The Horse and Carriage Inn Ltd., v. Fred B a r o n , 1 6 6 i n 1975 , having previously decided the Real Property Act, 1845"^^ had been replaced by B r i t i s h Columbia l e g i s l a t i o n , as an alternate reason for the decision that the Act was i n a p p l i c a b l e , referred to 168 the present tense i n the English Law Act and to the Interpretat- 169 ion Act, s. 23(d). -iHe concluded with respect to a set of facts i n 1972, the date of the facts giving r i s e to the issue before the Court arose, "... I do not b e l i e v e the l o c a l circumstances were or are such i n B r i t i s h Columbia that this archaic method of completing a contract should be preferred..."• Statute amendment i n B r i t i s h Columbia supports 'the: argu- ment put forward by Bouck, J. that the law must be regarded as always speaking. Verb tense changes effected i n the English Law Act may have permitted the i n t e r p r e t i v e change which has taken place, although such reason has not been s p e c i f i c a l l y noted. The words " C i v i l and Criminal Laws of England" have been joined to the various verb forms now l i s t e d , "are and w i l l remain i n f u l l force ..." by the 1858 Proclamation of Governor Douglas, "are, and s h a l l be i n force ..." 65 by the English Law Ordinance, 1867 " s h a l l be i n force ..." i n enactments between 1888 and 1948 of the English Law Act "are i n force " by the English Law Act, 1960. The present form of the Statute does not carry w i t h i t the imperative or f u t u r i t y q u a l i t y found i n the f i r s t two enactments. Certai n l y the Courts would have every reason to b e l i e v e that the l e g i s l a t u r e deleted the imperative enactment with remedial i n t e n t - ion. The change effected i n 1960 c e r t a i n l y removed any suggestion of the imperative. I t would appear therefore that, i n B r i t i s h Columbia, the reception date i s not decisive and a decision that an Act i s i n force i s not a precedent but only rebus s i c stantibus. Cote has raised a question as to the v a l i d i t y the English Law Act enacted a f t e r Union, i n 1871, due to the l e g i s l a t i v e loss imposed by the terms of the B r i t i s h North America Act, 1867. I f h i s argument can be supported, the 1888 Consolidation would s t i l l 171 be i n force with the imperative character of i t s verb,. (b) What i s a statute of general application? The test may be phrased i n various ways, Roberts-Wray suggests, "... the rules can be reduced to one p r i n c i p l e : that the imported English law i s to be applied with the l i m i t a t i o n s and modification required by l o c a l circumstances; 66 ... that the p r i n c i p l e has not only its. p o s i t i v e aspect, that English law must he. pruned or adapted i n the l i g h t of l o c a l circumstances, but also the negative aspect that the a p p l i c a t i o n of any given law-is to be e n t i r e l y rejected i f the circumstances which explain i t s o r i g i n - -,72 i n England have no relevance i n the country concerned .... or as suggested by Cote, "... one need only see why the law exists or existed i n England and what other e f f e c t i t would have there and then see whether the same s o c i a l or moral problems e x i s t i n the colony and whether the-rule would have any other side e f f e c t s i n the colony." 173 (i ) A law of l o c a l p o l i c y The judgment which forms the basis f o r the exclusion of a law of " l o c a l p o l i c y " , i s that of S i r William Grant, M.R. i n Attorney- 174 General v. Stewart,, an 1816 case which reads i n part: "Whether the statute of mortmain be i n force i n the i s l a n d of Granada, w i l l ... depend on this consideration — whether i t be a law of l o c a l p o l i c y adapted s o l e l y to the country i n which i t was made, or a general regulation of property equally applicable to any country i n which i t i s by the rules of English law that property i s governed. I conceive that the object of the statute of mortmain was wholly p o l i t i c a l — that i t grew out of l o c a l circumstances, and was meant to have a merely l o c a l operation. I t was passed to prevent what was deemed a public mischief, and not to regulate, as between ancestor and h e i r , the power of devising, or to prescribe, as between grantor and grantee, the forms of a l i e n a t i o n . I t i s i n c i d e n t a l l y only, and with reference to a p a r t i c u l a r object, that the exercise of the owner's dominion over h i s property i s abridged. ... framed as the Mortmain Act i s , I think i t i s quite i n a p p l i c - able to Granada, or to any other Colony, In i t s causes, i t s objects, i t s provisions, i t s q u a l i f i c a t i o n s and i t s exceptions, i t i s a law wholly English, calculated f o r purposes of l o c a l p o l i c y , complicated with l o c a l e s t a b l i s h - ments, and incapable, without great incongruity ^ n t h e e f f e c t of being transferred as i t stands into the code of any other country .. .." 175 67 176 This case has been approved i n B r i t i s h Columbia, i s followed, and i s accepted with respect to this Statute. In Ontario, an exception i s made on the basis of l o c a l l e g i s l a t i o n , i n these terms, ".. .The l e g i s l a t u r e i t i s admitted-,- are the best interpreters of t h e i r own laws; ... and they have shown i t to be t h e i r understanding, that without such express l e g i s l a t i v e authority the English Statutes of Mortmain would have restrained parties from making such a d i s p o s i t i o n , f o r they have added the words 'the Acts of Parliament commonly c a l l e d the Statutes of Mortmain or other acts, laws or usages to the contrary thereof notwithstanding'." 177 The B r i t i s h Columbia Courts have given the following reasons for deciding a statute was not of general a p p l i c a t i o n : a. "... only f o r the better administration of the laws of the poor i n England and Wales, and had nothing to do with the status of persons generally under English Law. The moment a person l e f t England and Wales, he was not l i a b l e to the administration of the poor laws of England ..." 178 when considering the Poor R e l i e f Act, 1601; b. i t was "... not a general act, but required a s p e c i a l act to make i t applicable to the I s l e of Man and the machinery by which the act i s to be worked out could not be applied here when considering 'the Crown Suits Act; 179 c. that the 1853 Stamp Act was not introduced i n that p o l i c e and revenue laws were s p e c i f i c a l l y excluded by Blackstone. 180 This case approved the decision i n Jex v. McKinney, 181 a case from B r i t i s h Honduras, p a r t i c u l a r l y the passage, "framed f o r reasons a f f e c t i n g the land and society of England, and not for reasons applying to a new colony ....11 68 2. Local circumstances i n the Colony (a) D i f f e r e n t p h y s i c a l and s o c i a l conditions Bouck, J . s a i d , as one of the reasons for not applying the Real Property Act, 1845, to B r i t i s h Columbia, "... I do not mean to be c r i t i c a l of the Act of 1845. History shows that i t was enacted to help solve d e f i c - iencies which had developed i n the English conveyancing pr a c t i c e . The comparison i s made to i l l u s t r a t e the danger of adopting as part of the law of B r i t i s h . Columbia a statute passed to remedy a f a u l t i n existence on that date by a Leg i s l a t u r e representing another soci e t y , i n another time 182 Here, he introduces not only the h i s t o r y of the statute, but also the society of B r i t i s h Columbia. Other references to B r i t i s h Columbia soc i e t y , or l o c a l circumstances, and d i f f e r e n t p h y s i c a l and s o c i a l conditions are found i n the following instances, where i t was determined that: a. a statute was ".. . i n a p p l i c a b l e to any state of things that ever existed here ... ." 183 b. "... No workhouses existed i n B r i t i s h Columbia i n 1858 nor was any attempt being made to administer this Act i n B r i t i s h Columbia 184 c; a statute as to l i c e n s i n g was concerned "... preeminently with l o c a l conditions i n England which are not found here ..." 185 d. and Manson, J. has approved the Ontario case of Shea v. Choat, 186 and p a r t i c u l a r l y the statement of Robinson, C. J . " I t cannot possibly admit of doubt that i t s provisions are ina p p l i c a b l e to any state of things that ever existed here; a clause here and there might be c a r r i e d into e f f e c t i n this colony, or anywhere, from the general nature of t h e i r provisions; but that i s not s u f f i c i e n t to make such a statute, part of our law, when the main object and tenor of i t s i s 69 wholly foreign to the nature of our i n s t i t u t i o n s , and i s therefore incapable of being c a r r i e d sub- s t a n t i a l l y and as a whole i n t o execution." (b) Is the double negative phrasing as to l o c a l circumstances a decisive parameter for B r i t i s h Columbia? Canadian cases generally, i n respect of s u i t a b i l i t y or a p p l i c a b i l i t y , impose a d i f f e r e n t c r i t e r i a of reception for common law and statute law. Common law applies to a Colony unless i t i s shown to be unsuitable and English statutes are generally not applied 187 unless shown to be s u i t a b l e . In B r i t i s h Columbia, the reception statute provides f o r the Laws of England "so f a r as they are not, from l o c a l circumstances, 188 i n a p p l i c a b l e " and the double negative phrasing may be decisive to make statutes applicable (as i s the common law) , unless c l e a r l y i n a p p l i c a b l e . 189 The double negative argument appears i n Watt v. Watt, a 1907 case. Clement, J . presents the argument i n the following way: "I am of the opinion — at a l l events I assume — that the use of the double negative throws the burden on him who asserts that a given English law, statute or other, of date p r i o r to 1858, was not introduced i n t o B r i t i s h Columbia. He must est a b l i s h the aff i r m a t i v e proposition that the law i n question was "from l o c a l circumstances" ina p p l i c a b l e to B r i t i s h Columbia ... That new right (divorce) was so inseparably i n c i d e n t a l to and bound up with the j u r i s d i c t i o n of an e s s e n t i a l l y l o c a l Court that I cannot bring myself to view i t as other than i t s e l f e s s e n t i a l l y l o c a l . I t i s impossible i n my opinion, to segregate the bare r i g h t to a j u d i c i a l decree from the l o c a l conditions as to i t s enforce- 70. ment.: These l o c a l conditions did not and could not e x i s t i n B r i t i s h Columbia ..." The case was reversed on appeal. The Appeal Court dealt with the reasoning of the second paragraph but not with the argument presented by' Clement, J . i n the f i r s t paragraph. The only other j u r i s d i c t i o n i n Canada having the double negative 190 i s New Brunswick. Clement i n h i s book The Canadian Constitution, comments on the New Brunswick a u t h o r i t i e s , " . . . I f any d i s t i n c t i o n i n p r i n c i p l e can be drawn between the decisions i n New Brunswick and those i n Nova Sco t i a , i t would appear to be t h i s : that B r i t i s h statutes have been denied operative force i n Nova Scotia unless c l e a r l y applicable, while i n New Brunswick the tendency, at least of e a r l i e r a u t h o r i t i e s , seems to have been not to re j e c t them unless c l e a r l y i n a p p l i c a b l e . At the same time i t must be confessed that this d i s t i n c t i o n cannot be c l e a r l y pointed out i n every case ..." The B r i t i s h Columbia Courts do not appear to have s p e c i a l l y provided for the double negative argument and r e f e r to cases i n other j u r i s d i c t i o n s having a d i f f e r e n t and p o s i t i v e wording as precedents. (c) I n a p p l i c a b i l i t y due to procedural problems Where a statute i s a statute of general application and i s applicable, but some procedural machinery i s lacking i n the colony, the courts must then consider the extent to which i t may be applied i n part. Such procedural problems are inherent i n the less developed c o l o n i a l s i t u a t i o n and i n the l e g i s l a t i v e d i v i s i o n of Canada. In B r i t i s h Columbia, the Courts have tended to separate procedural d i f f i c u l t i e s to permit the substantive provisions of a 71 p a r t i c u l a r Imperial statute to function. MacDonald, C.J., s a i d , i n response to an argument that law and procedure were d i f f e r e n t and procedure had not been introduced, "... The procedure i n the Act so far as applicable to the conditions i n B r i t i s h Columbia must be followed, and i f any of them are i n a p p l i c a b l e , which they p l a i n l y are, rules must be adopted by the Court which has inherent j u r i s d i c t i o n , i n analogy to the rules set out i n the Act " 191 Such procedural problems have been the p r i n c i p a l factor i n the Div- orce and Matrimonial Causes cases i n the Province of B r i t i s h Columbia. There i s perhaps no occasion f o r a p e t i t i o n e r to be so energetic i n pursuit of his goal than i n the matter of obtaining a divorce or n u l l i t y decree, and the cases have been pursued i n appeals with great d i l i g e n c e . I t had been decided' that at the period of these cases, the Imperial Divorce and Matrimonial Causes Act, 1857 as amended by the Act of 1858 was s u b s t a n t i a l l y i n force 192 i n the Province. The problems i n the divorce cases arose from two procedural l i m i t a t i o n s i n B r i t i s h Columbia, (1) the more simple structure of the P r o v i n c i a l courts i n the early c o l o n i a l period, as compared with those i n England and contemplated by the draftsman of the Divorce and Matrimonial Causes Act; and (2) the d i v i s i o n of l e g i s l a t i v e j u r i s d i c t i o n which operated when B r i t i s h Columbia entered Union with Canada deprived B r i t i s h Columbia of divorce j u r i s - d i c t i o n , except i n respect of procedural matters. Notwithstanding the fa c t that the Federal government had j u r i s d i c t i o n , the Province a f t e r Union enacted the English Act, s l i g h t l y amended, and'in 1938, by an apparently procedural amendment purported to r e s t r i c t remarriage of a divorced person. 193 This p r o h i b i t i o n was u t i l i z e d by those seeking a declara- t i o n that a second marriage, which had been made i n the period proscribed by the Statute as amended, was a n u l l i t y on the ground that the divorced person lacked the capacity to marry i n the proscribed period. 72 Kennedy has dealt with the procedural matters i n three d i v i s i o n s : ( i ) "Where a substantive provision i s found to be applicable, absence of i n c i d e n t a l machinery w i l l only r a r e l y r e s u l t i n "dormancy" or "abeyance" u n t i l the machinery i s provided. Usually the substantive provision i s held to be e f f e c t i v e and applicable within the e x i s t i n g l o c a l machinery 194 The d i f f i c u l t i e s of Judges i n C o l o n i a l s i t u a t i o n s , and t h e i r need to exercise greater powers than would be expected i n a s e t t i n g with a more developed j u d i c i a l hierarchy to make received law function i l l u s t r a t e s t h i s proposition. In Sheppard v. Sheppard the sole Judge of the Court found himself able to exercise j u r i s - d i c t i o n allocated to three judges i n England. Martin, J . (as he then was), a f t e r reviewing the a u t h o r i t i e s , reasoned that i t was unsound to wholly r e j e c t an Act i n the absence of machinery, so a compromise modifying i t s a p p l i c a t i o n by the circumstances e x i s t i n g i n the c o l o n i a l s i t u a t i o n must be chosen. He sai d , "I confess I cannot, with a l l due deference, quite comprehend how, i n the face of the foregoing facts and of such a venerable and ever increasing body of authority, i n the course of which no less than f i v e judges have i n reported judgments formally upheld this j u r i s d i c t i o n , any judge can refuse to exercise i t ; ..." 196 Two judges, Clement, J . , dissenting i n the Sheppard Case, and Begbie, C. J . , i n Watt v. Watt, had however refused to exercise the j u r i s d i c t i o n . The statement of Martin, J. i s i n accord with Gray, J . i n 73 198 S.,. y. S. which was followed i n Sheppard y. Sheppard. He s a i d , " I t would be Inconsistent to hold we adopt an English remedial law for l o c a l purposes but when you want to use the remedy you must go to England 199 the Privy Council decision i n Yeap Cheah \'eo v. Ong Cheng New, r e l a t i n g to the ap p l i c a t i o n of English Law to the S t r a i t s Settlements where the l e g i s l a t i o n applied "as f a r as circumstances w i l l admit". The Court ruled that the law must be taken to be "modified i n i t s a p p l i c a t i o n by these circum- stances"; and Rand, J. discussing Watts, v. W a t t s , ^ ^ i n the Densmore case, "The holding stands, as I view i t , f o r the enact- ment by adoption of those provisions as they are f a i r l y to be drawn from the statute, and that the law so adopted i s to be accommodated to the j u d i c i a l organs administering the law generally i n the province ... The governing fa c t i s the in t e n t i o n of the adopting l e g i s l a t u r e : ... the blanket law gathered up by the enactment was, by the p r i n c i p l e then and now applied, to be confirmed or rejected by the Courts, ... an act of j u d i c i a l l e g i s l a t i o n . . . . " The e f f e c t of these cases as summarized by Kennedy, was that English Law was "not from l o c a l circumstances i n a p p l i c a b l e " "... merely because the colony lacked judges or courts of the same quantity and name as those i n England. A decision otherwise would have been i n t o l e r a b l e , e s p e c i a l l y f o r c ° l o n i e s such as Vancouver Island and - B r i t i s h Cpluiribia/;where; the:-Supreme~Court was the only court "and was given 'complete cognizance of a l l pleas whatsoever' and j u r i s d i c t i o n ' i n a l l cases, c i v i l , as w e l l as criminal, a r i s i n g within' the colony...."201 Kennedy's second d i v i s i o n i s the applicable but dormant theory. ( i i ) "... where the substantive provision i s t i e d to procedural machinery of some sor t before i t can be e f f e c t i v e , and there i s no su i t a b l e machinery at a l l , then either i t i s applicable but dormant u n t i l the machinery a r r i v e s , or t o t a l l y i n a p p l i c a b l e . " 202 74 I f the substantive r i g h t (appeal) merely lacks a court to enforce i t , i t may be applicable but dormant, provided i t i s not i n a p p l i c - able for any other reason. The judgment of Rand, J. of the Supreme Court of Canada consider.^v the Densmore appeal, i n these terms: "... I take the provisions r e s t r a i n i n g remarriage pending appeal to have been introduced as a substantive measure and that i t remained proced- u r a l l y i n e f f i c a c i o u s u n t i l , by p r o v i n c i a l law, provision was made for appeal. ... the administrat- ion of j u s t i c e by the Province surely extends to the f i n a l determination within the Province of the judg- ments of i t s own Courts 203 Kennedy's a r t i c l e was published before the appeal was heard by the Supreme Court, and he was a c t u a l l y discussing the matter as i t had been ra i s e d i n the dissenting Court of Appeal judgment of Sidney Smith, J.A., "whether the s t r i k i n g out of the 'hereby' i n 1938 'created an incapacity to marry which did not previously e x i s t ' " A l i i applications of an English Act involve i t s being applied mutatis mutandis; and the necessity of omitting the word 'hereby' i n order to apply the se c t i o n i s as nothing to the incongruities that must be passed over to apply the Act for other purposes; ... So i f the r i g h t of appeal i n the Province had existed i n 1857, I would see no d i f f i c u l t y from the words 'hereby l i m i t e d ' . The question remains whether i t i s material that the remedy of appeal was only made available l a t e r , that i s , i n 1937 or 1938." The"- answer to that i s indicated by Martin J. i n Sheppard v. Sheppard. He states that even where machinery i s lacking to make an English Act operative here, s t i l l i t s provisions could 'be viewed as a p a r t i a l l y dormant or abeyant p r i n c i p l e of jurisprudence to become e f f e c t i v e l a t e r on as the machinery a r r i v e d " , and he p a r t i c u l a r l y related t h i s view to the subject of appeal." 204 75 The majority of the Supreme Court (Cartwright, Tas'cfrereau, and Faute.ux, JJ.) found the remarriage a n u l l i t y and t h a t the Act referred to appeal provisions which had no p r a c t i c a l e f f e c t i n 205 B r i t i s h Columbia u n t i l appeals were provided i n 1938: the provisions were dormant so long as no r i g h t of appeal existed, and became e f f e c t i v e when an appeal was provided. Cartwright, J . dealt with the dissenting judgment of Sidney Smith, J.A., as follows, "The main ground upon which Sidney Smith, J.A. proceeded was that the enactment and the amendment of s. 38 by the Legislature were unnecessary as s. 57 of the Imperial Act continues to operate i n B r i t i s h Columbia mutatis mutandis, that the incapacity to marry, u n t i l the time f o r appealing from a decree d i s - s o l v i n g a marriage has expired or i n the r e s u l t of any appeal a marriage has been declared dissolved, forms part of the substantive law of marriage and divorce i n B r i t i s h Columbia which, while dormant so long as there was no r i g h t of appeal, became e f f e c t i v e immediately upon that righ t coming into existence. I agree with this conclus- ion and with the reasons f o r i t given by the learned J u s t i c e of Appeal. I t appears to me to follow from the reasoning of Gray and Crease J J . i n S. v. S and that of Martin J . i n Sheppard v. Sheppard ..., approved by the J u d i c i a l Committee i n Watts & A.-G. B.C. v. Watts, 206 In some cases t h i s theory could not operate and the t h i r d option, t o t a l i n a p p l i c a b i l i t y would follow. ( i i i ) "... where the machinery which i s absent (machinery for appeals) i s connected with a substantive r i g h t which i s only absent (the r i g h t of appeal), and i t i s only i n c i d e n t a l l y connected with a d i f f e r e n t sub- stantive p r o v i s i o n (eg. the one i n question, a l i m i t - a tion upon the r i g h t to remarry), yet connected i n such a way by reason of the language of the l e g i s l a t i o n that the second substantive provision cannot operate without the machinery, the s o l u t i o n i s best found i n holding the second substantive p r o v i s i o n i s i n a p p l i c a b l e . 76 In support of this option, Kennedy poses the question, "Should the subsequent p r o v i s i o n of machinery for one purpose (appeals i n Divorce cases) have the ef f e c t of a l t e r i n g the substantive law i n an e n t i r e l y d i f f e r e n t area (the rig h t to remarry)?" 208 The Ontario case, Mercer v. Hewston i s a case where i n view of lack of machinery, the statutory p r o v i s i o n requiring " e n r o l l i n g " of deeds was held to be inapplicable as Ontario then had no Chancery Court. Kennedy notes that no suggestion was made that r e g i s t r a t i o n would be required i f a Court of Chancery were created i n Ontario, although some of the cases were a f t e r the Court was created. In the words of Martin, J. , commenting on the case, c!!'^. £hf negf-£e etthe Court of Chancery i t s e l f was dispensed with . 3. Problems inherent i n a Federation When B r i t i s h Columbia united with Canada i n 1871, the l e g i s - l a t i v e ambit of the Federal Parliament, assigned to i t by section 91 of 210 the B r i t i s h North America Act, 1867, operated to deprive the P r o v i n c i a l courts of j u r i s d i c t i o n . (a) Is the Province of B r i t i s h Columbia j u s t i f i e d i n providing for a matter of Federal j u r i s d i c t i o n on the argument that the Federal government, having.jurisdiction,.has not made provision? It would appear that i t may. The Province i s sovereign i n respect of the heads of j u r i s - d i c t i o n assigned to i t and enumerated i n s. 92. L e g i s l a t i o n by the Province i s competent unless and u n t i l the Federal Parliament enacts 211 c o n f l i c t i n g l e g i s l a t i o n , providing two conditions are met, (1) the subject of p r o v i n c i a l l e g i s l a t i b n merely i n c i d e n t a l l y affects one of the classes of subjects enumerated i n 77 s:" 91. as a f e d e r a l head of j u r i s d i c t i o n ; and (2) the l e g i s l a t i o n i s properly within one of the enumerated heads i n s. 92. In the following cases, such p r o v i n c i a l l e g i s l a t i o n has been e f f e c t i v e , (1) i n considering whether County Court j u d g e s , s i t t i n g as l o c a l judges of the Supreme Court, could grant a divorce, the Supreme Court of Canada decided that as the Federal government had not passed l e g i s l a t i o n ^ under s. 101 of the B r i t i s h North America Act, 1867, and therefore i t was competent for the Province to pass laws with respect to the c o n s t i t u t i o n , maintenance and organization of such courts and to confer the j u r i s d i c t - ion. The Court s a i d , "... the impugned l e g i s l a t i o n does not ... create any substantive r i g h t to make any change i n the law or j u r i s d i c t i o n i n that regard 213 (2) i n Burk v. Tuns t a l l i t was held that i t was competent f o r the Province of B r i t i s h Columbia to create mining courts and to f i x t h e i r j u r i s d i c t i o n , but not to appoint any o f f i c e r s thereof with other than m i n i s t e r i a l powers, j u d i c i a l powers being within the competence only of appointees of the Governor General. 214 (3) P r o v i n c i a l l i m i t a t i o n acts, as applied to and c u r t a i l i n g u ' the operation Federal statutory causes of action have been sustained on the ground that they are procedural i n nature. This view was expressed i n University of B r i t i s h Columbia v. Martin Forbes B a r t l e t t 215 where an action on a promissory note was barred by the B r i t i s h Columbia Statute of L i m i t a t i o n s , no l i m i t a t i o n period having been provided i n the Federal enactment. The contrary r e s u l t i s found, where a substantive enactment by the Province i s i n respect of a s . 91 head of j u r i s d i c t i o n . The problem i s i l l u s t r a t e d i n the divorce cases and the a l l o c a t i o n of divorce to the Federal government and procedure to the provinces. B r i t i s h Columbia further complicated the matter when, i n r e v i s i n g the 78 statutes i n 1897, i t reproduced i n part the Imperial Divorce Act of 1857 as a P r o v i n c i a l enactment. Kerwin, J . , dissenting i n Hellens v. Densmore, said "... i n view of s. 6 of c. 41 of the 1897 annual statutes of B r i t i s h Columbia, I cannot escape the conclusion that the B r i t i s h Columbia l e g i s l a t u r e did enact c. 62 of R.S.B.C-. 189 7 and i t therefore becomes necessary to consider the v a l i d i t y of s. 40 thereof. I f at that time i t was beyond the competence of the L e g i s l a t u r e i t cannot a f f e c t the matter that subsequently there was a Court i n the Province to which an appeal from a decree of divorce might be taken. In my view i t was u l t r a v i r e s . Under Head 26 ... This was not a mere matter of procedure, but one of substantive law and has no r e l a t i o n whatsoever to the solemnization of marriage 216 Kennedy has considered this problem and points out i t i s i t s place of i n c l u s i o n i n the Revised Statutes as an enactment that i s inappropriate, and the English Act should have been placed with those statutes "taken over from England and included i n an appendix for the * +u * • " 2 1 7 convenience of the profession .... The English Act was introduced by the reception statute before federation, so far as not i n a p p l i c a b l e , and has continued i n force there- a f t e r . (1)- Is the case of such an English act, introduced by the reception statute before federation so far as not i n a p p l i c a b l e and which had con-. tinued i n force thereafter, d i f f e r e n t ? "The fact that i t maybe said that the Parliament of Canada can, since the Union, alone, i n one sense, l e g i s - l a t e on matters r e l a t i n g to Divorce, and might i f i t saw f i t take away such j u r i s d i c t i o n from the Courts of the Province, does not i n the l e a s t . d e t r a c t from the s i g n i f i c a n c e of the declaration.of the Legislature of a Province as to the a p p l i c a b i l i t y of English laws to i t s own residents and circum- s tances .... 79 In B r i t i s h . Columbia, the Federal Parliament has so f a r been 'disposed 1 to leaye the exercise of that regulating j u r i s d i c t i o n to the P r o v i n c i a l l e g i s l a t u r e , i n doing which that l a t t e r i s j u s t as free to recognize the a p p l i c a b i l i t y of an Imperial statute as i t would be i f i t had the power to a l t e r the j u r i s d i c t i o n conferred thereby. This power to regulate has been so c l e a r l y recognized by the Privy Council i n the Fisheries case 218 Such a statute which now f e l l under -a fed e r a l head of 219 j u r i s d i c t i o n , and was not repealed e i t h e r (1) s p e c i f i c a l l y , i n 1886, when the Federal Parliament repealed a few provisions i n force i n B r i t i s h Columbia "so f ar as the said Acts and parts of Acts r e l a t e to matters w i t h i n the l e g i s l a t i v e authority of the Parliament of Canada ...." or (2) by impl i c a t i o n , by the Federal Parliament enacting a sub- s t a n t i a l body of law or code such as would constitute implied repeal, remains i n force for the Province u n t i l repealed. I t remains i n force by the j o i n t operation of s. 129 of the B r i t i s h North America Act, 1867, A MC 2 2 0 and s. 146. In the Federal l e g i s l a t i v e ambit of s. 91, English Law i n force i n each Province includes, (1) English Law,»common and statute^y as introduced as part of the law of that Province or t e r r i t o r y and not repealed by the Federal authority; and (2) English statutes made applicable proprio vigore to the Province or t e r r i t o r y , f a l l i n g w i t h i n a s . 91 head of j u r i s d i c t i o n , and not altered by the Federal government a f t e r 1931; and (3) English statutes made applicable to Canada proprio vigore, and not altered a f t e r 1931. ' 80 (b) Is a v a l i d law i n force i n B r i t i s h Columbia before Federal l e g i s l a t i o n was enacted, and superseded by Federal l e g i s l a t i o n , revived upon repeal without reenactment by the Federal authority? ( i ) An Act i n force by v i r t u e of the operation of the English Law Act 221 In Foley v. Webster, the question r e l a t e d to an English Act providing for i n t e r e s t on a judgment at four per cent which was "and continued to be law down to the passing of 49 V i c t . , c. 44 (Dominion Act) ....V Considering whether i t was i n force a f t e r the repeal of the Dominion Act i n 1890, Drake J . , s a i d "The contention that theerepeal ... i n fact repealed the r i g h t to recover i n t e r e s t at a l l on judgments i s not w e l l founded. These sections did not a f f e c t the p r i n c i p l e of allowing i n t e r e s t on judgments, but only increased the amount of such i n t e r e s t , and by t h e i r repeal the law as i t existed i n this province was not repealed and s t i l l l i s - the law here. The l e g i s l a t u r e never contemplated enacting a new law on the subject of judgments, but only a modification of a part of i t , which modification having been subsequently repealed, l e f t the old law as i t existed .. ..-" Several B r i t i s h Columbia cases have considered the e f f e c t of the Criminal Code provisions an&stheir e f f e c t on a s i m i l a r statute, 221A the Offences Against the Person Act, 1828 (iEmp.) The most 2 2 IB recent, Mclntyre v. Moon, was a 19 71 decision of Verchere, J. who s a i d , "In Sharkey v. Robertson (1969), 67 W.W.R. 712, 3 D.L.R. (3d) 745 (B.C.) Ruttan, J . had occasion to deal with an attack on those provisions s i m i l a r to the one made here, and i n the course of concluding that they were v a l i d , he gave i t as h i s opinion that the repeal of ss. 732-4 of the Criminal Code, R.S.O. 1906, c. 146 (which were f i r s t enacted i n 1892 and continued u n t i l t h e present Code came into being, when ss. 733 and 734 were dropped but the provisions of s. 732 r e - tained i n what became s. 699) did not repeal such l e g i s l a t i o n as may have existed i n the province before Confederation. I agree with that conclusion and with the further unstated, but I think, inherent conclusion that the enactment of ss. 732-4, or th e i r predecessor sections i n 1892, did not, by t h e i r enactment, procure the repeal of that l e g i s l a t i o n either. To what has already been s a i d I would add, however, that i n my oppinion (a) this i s not a case to which S;; 22 of The 80A I n t e r p e t a t i o n Act, R.S.B.C. 1960, c. 199, a p p l i e s , because c o n f l i c t between Canadian and p r o v i n c i a l l e g i s l a t i o n serves only t o suspend the l e g i s l a t i v e a u t h o r i t y of the province i n r e l a t i o n to the a f f e c t e d matter: see P r o v i n c i a l Secretary of P r i n c e Edward I s l a n d v. Egan, [1941] S.C.R. 396 at 402, 76 C.C.C. 227, [1941] 3 D.L.R. 305; A d i f f e r e n t r e s u l t would f o l l o w i f P r o v i n c i a l l e g i s l a t i o n were enacted r e p e a l i n g by i m p l i c a t i o n an Imp e r i a l Act i n force by the p r o v i s i o n s of the r e c e p t i o n s t a t u t e (or, a f t e r 1931, p r o p r i o v i g o r e ) . As such r e c e i v e d law i s i n force as law of the colony, and can be amended and d e a l t w i t h as such,. P r o v i n c i a l repeal would be e f f e c t i v e i n the usua l way i r r e s p e c t i v e of how the P r o v i n c i a l law came i n t o being. I t would not r e v i v e i f the Repealing s t a t u t e were i t s e l f subsequently repealed. The rep e a l would be i n accordance 221C w i t h the p r o v i s i o n s of the I n t e r p r e t a t i o n Act. l^Two other B r i t i s h Columbia cases considered the 1828 Im p e r i a l S t a t u t e and the e f f e c t on i t of the C r i m i n a l Code. They are: (1) . Maj.oryv. JMcCraney, an 189 7 case which went to the Supreme Court of Canada, appears at variance w i t h the accepted r u l e as s t a t e d i n the Mclntyre Case. However, the Chief J u s t i c e i n the Supreme Court d i d not make the r u l i n g that the 1828 Statute was no longer i n force i n B r i t i s h Columbia, and pointed out that even i f i t were i n f o r c e , the t r i a l judgment of the l a t e learned Chief J u s t i c e was wrong i n h i s c o n s t r u c t i o n of s. 12 of the Act. He a l s o says i t would not have a p p l i e d . a n c- the r e f o r e ijtswforcetwastQotamaterial. Tne judgment of Drake, J . , i n the Court appealed from had s a i d , "... the Act ... i s no longer i n f o r c e , and t h i s i s d e c i s i v e l y shewn by reference to the course of l e g i s l a t i o n d e a l i n g w i t h the c r i m i n a l law...." This judgment i s one at leastew which mention the enactment made by the Federal a u t h o r i t y i n 1886 d e l e t i n g the c r i m i n a l law p r o v i s i o n s from the E n g l i s h Law Act. 22JD (2) Sharkey v. Robertson, which case i s mentioned i n the p o r t i o n of the Mclntyre Gaseepreviously quoted. The Mclntyre Case 'awas^eonsidefea"but cdlatinguisn'ed V :Sn :'the : >•'••- fa c t s r e c e n t l y i n Saskatchewan. 4 81 ( i i ) Ah' Act i i i force as proprio yigore l e g i s l a t i o n U n t i l the Statute of Westminster, 1931, neither a Federal nor a P r o v i n c i a l enactment could repeal or amend l e g i s l a t i o n i n force proprio vigore. Castles has suggested, discussing the Commonwealth of A u s t r a l i a , "In some instances B r i t i s h Laws may no longer apply to the States because the Commonwealth Parliament has exercised i t s power over the subject matter of B r i t i s h laws which would otherwise apply by paramount force i n the States. But where the Commonwealth Parliament has no c o n s t i t u t i o n a l power to do t h i s , B r i t i s h laws s t i l l apply by paramount force." 222 The e f f e c t of a P r o v i n c i a l enactment on proprio vigore 223 l e g i s l a t i o n was considered i n Regina v. De Banou. The Herbalists Act, 1542, was i n force i n B r i t i s h Columbia proprio vigore i n that i t was extended to "any parte of the realme of England or w i t h i n any other the King's domynions" The case decided that s e c t i o n 71 of the Medical Act, by i m p l i c a t i o n , made the Herbalists Act, 1542,no longer e f f e c t i v e i n B r i t i s h Columbia, and the p r e s c r i p t i o n of a physiotherapist that would have been permitted under the English 1542 Statute was found to contravene the Medical Act provisions. The case makes the d i s t i n c t i o n between a consolidated act and an enactment, and the e f f e c t t h ereof,in order to f i x the date of the Medical Act. I t was enacted i n 1946,and was found not to be a mere r e - enactment of pre-1931 provisions, such as would exclude the e f f e c t of the Statute of Westminster, 1931. 82 (c) L i m i t a t i o n s Of e x t r a - t e r r i t o r i a l i t y ( i ) H i s t o r i c a l Background C o l o n i a l l e g i s l a t u r e s could only l e g i s l a t e f o r t h e i r own t e r r i t o r i e s -tlni. ( the nineteenth century, the C o l o n i a l B i l l s w i t h e x t r a - t e r r i t o r i a l e f f e c t were d i s a l l o w e d by the Law O f f i c e r s of the Crown, and by the Courts when they began c o n s i d e r i n g such c o l o n i a l 224 l e g i s l a t i o n . I m p e r i a l review of c o l o n i a l l e g i s l a t i o n — w h e t h e r approval, amendment or disallowance •— was a w e l l e s t a b l i s h e d p a r t of the Im p e r i a l a d m i n i s t r a t i v e process. I t was undertaken by the Committee of the P r i v y C o u n c i l f o r Trade and P l a n t a t i o n s , the Board of Trade, and the C o l o n i a l O f f i c e which O f f i c e was made a separate 225 department of s t a t e i n 1854. The K i n g - i n - C o u n c i l acted on the minute of the Secretary of State f o r the Colonies who was advised by l e g a l counsel i n both the C o l o n i a l department and i n the P r i v y C o u n c i l Committee f o r Trade and P l a n t a t i o n s . A f t e r c o n s i d e r i n g C o l o n i a l l e g i s l a t i o n , i t was the duty of these eminent counsel to report an op i n i o n 226 on such l e g i s l a t i o n " i n p o i n t of law". S e v e r a l c o l l e c t i o n s of Opin- ions are published and the a v a i l a b i l i t y of t h i s s ource i n the Colonies 227 g r e a t l y increased thereby. Although the o r i g i n of the d o c t r i n e i s obscure, i t was r a i s e d 228 i n the Canadian P r i s o n e r s Case, of 1839, when Lord Durham transported Canadian rebels to Bermuda. E x t r a - t e r r i t o r i a l i t y i s now conceded to the s e l f - g o v e r n i n g Dominions... by the Statut e of Westminster, 1931, but the P r o v i n c i a l L e g i s l a t u r e s are s t i l l confined to t e r r i t o r i a l l e g i s l a t i o n . 83 C o l o n i a l attempts were o r i g i n a l l y made to extend j u r i s - 230. d i c t i o n beyond the three m i l e l i m i t , i n matters of c r i m i n a l law and i n claims of the r i g h t to enforce the Crown's n e u t r a l i t y t h e r e i n by ordinance r e s t r i c t e d to three m i l e s and to act under the Foreign 231 Enlistment Act. The r i g h t to enact c o l o n i a l p i l o t a g e laws l i m i t e d to the t e r r i t o r i a l sea, before p i l o t a g e was regulated by the Merchant 232 Shipping A c t , 1894, was another aspect of the problem. Further opinions r e l a t e to c o l o n i a l trade and t r e a t y r e l a t i o n s , The I m p e r i a l Parliament showed reluctance to ov e r r i d e C o l o n i a l author- i t i e s w i t h respect to observance of t r e a t i e s , w i t h the r e s u l t that the Crown had d i f f e r e n t t r e a t y commitments f o r d i f f e r e n t possessions. E v e n t u a l l y a s o l u t i o n was reached i n t e r r i t o r i a l a p p l i c a t i o n to Colon- i e s only a f t e r they s i g n i f i e d t h e i r assent to be a f f e c t e d by the t r e a t y i n q u estion, and undertook to enact appropriate l e g i s l a t i o n . When colo n i e s federated, the continued a p p l i c a t i o n of a t r e a t y to a p o r t i o n of the f e d e r a t i o n was a problem, p a r t i c u l a r l y i f i t a f f e c t e d a f i e l d of 233 f e d e r a l competency. ( i i ) Provinces l i m i t e d as to e x t r a - t e r r i t o r i a l i t y , before and a f t e r 1931 C o l o n i a l l e g i s l a t i v e e f f o r t s to extend t e r r i t o r i a l i t y were l i m i t e d to the t e r r i t o r i a l sea ( l y i n g between low water mark and the three mile limit).,, as provided i n the C i r c u l a r Despatch of 16th December, 234 1842, which reads i n t e r a l i a , "... When the ope r a t i o n of a C o l o n i a l Act i s confined to a range not exceeding one league from the shore, and r e l a t e s to matters of l o c a l i n t e r e s t , the r e g u l a t i o n of 84 which.,'by', l o c a l enactment, i s indispensable to the welfare of the Colony, no objection w i l l be made to such an Act on the ground of the l o c a l range and extent of i t s operation exceeding the l i m i t s of the j u r i s d i c t i o n of the Colo n i a l L e g i s l a t u r e ; Examples of-such Acts are those r e l a t i n g to pilotage, to quarantine, to customs duties, and to f i s h e r i e s . But i f a Colonial Enactment be made to take e f f e c t on the high seas at a distance exceeding three miles from the shores of the Colony — that i s , i f i t s h a l l purport to regulate, to prevent, or punish any acts done on shipboard beyond those l i m i t s , such Enactments w i l l be n u l l and void. In what manner-of acts of that kind may be disposed of by Her Majesty, i s a<, question on which no one i n f l e x i b l e r u l e can be l a i d down. But i t may be stated, as a general r u l e , that the Queen w i l l , i n no case, be advised to confirm or sanction any such Enactment." The Provinces are s t i l l so l i m i t e d . In some instances however Prov- i n c i a l l e g i s l a t i o n has been found i n t r a v i res where the basis was property c i v i l rights within the Province and the ef f e c t on residents abroad was only i n c i d e n t a l , 235 (1) i n Workmen's Compensation Board v. C.P.R. a 1919 case, the v a l i d i t y of the pr o v i s i o n i n the Workmen's Compen- sation Act, 1916 (B.C.) extending benefits to a workman k i l l e d outside the Province was considered. The accident occurred when a ship floundered outside of t e r r i t o r i a l waters. I t was held that the r i g h t arose, not out of a to r t having a source outside the Province, but out of a contract of employment, made within the Province and the action i s to secure a c i v i l r i g h t within the Province. 236 (2) i n Gagen v. Gagen, a 1934 case, the provision i n the Deserted Wives' Maintenance Act whereby the B r i t i s h Columbia magistrate had j u r i s d i c t i o n and ordered service on a husband by registered mail to his new residence i n New Zealand was considered. Macdonald, C.J.I ruled> 1. that the Magistrate had j u r i s d i c t i o n by the operation of the i n t e r p r e t a t i o n s e c t i o n , and 2. the l e g i s l a t i o n was v a l i d and not e x t r a - t e r r i t o r i a l , but ruled that even i f i t were, the Magistrate had j u r i s - d i c t i o n , the desertion having taken place i n B r i t i s h Columbia. 85 This case i s based on the proposition that some powers extend 237 to c i t i z e n s abroad. ( i i i ) Federal P r o v i n c i a l c o n f l i c t F a r r i s , C.J.B.C. (with whom B u l l and McFarlane, J.J.A. agreed) i n the 19 76 Reference re Ownership of the Bed of the S t r a i t of Georgia 238 and r e l a t e d areas, i n determining B r i t i s h Columbia's j u r i s d i c t i o n f o r the waters i n question, approved the Reference re Offshore Mineral Rights 239 (B.C.) , and quoted the following passages: "So f a r , we are of the opinion that the. t e r r i t o r i a l sea lay outside the l i m i t s of the colony,of B r i t i s h Columbia i n 1871 and did not.become part of B r i t i s h Columbia following union with Canada. We are also of the opinion that B r i t i s h Columbia did not acquire j u r i s d i c t i o n over the t e r r i t o r i a l sea follow-, ing union with Canada ... " I t i s Canada which i s recognized by i n t e r n a t i o n a l law as having rights i n the t e r r i t o r i a l sea adjacent,to the province of B r i t i s h Columbia ... The t e r r i t o r i a l sea now claimed by Canada was defined i n the T e r r i t o r i a l Sea and Fishing Zones Act of 1964 referred to i n Q.l of the order i n council. The e f f e c t of that Act, coupled with the Geneva Convention of 1958, i s that Canada i s recognized i n i n t e r n a t i o n a l law as having sovereignty over a t e r r i t o r i a l sea three n a u t i c a l miles wide. I t i s part of the t e r r i t o r y of Canada." and concluded, "These passages make i t c l e a r that the court was dealing with rights i n the t e r r i t o r i a l sea adjacent to the Province of B r i t i s h Columbia. The waters of the Gulf of Georgia are not part of the t e r r i t o r i a l sea. I t may be noted that under A r t i c l e I of the Treaty of 1846, i t i s only i n respect of that portion of the Gulf of Georgia that l i e s south of the 49th p a r a l l e l that there i s a r i g h t of free navigation. The concept of closed.navigation i s inconsistent with the concept of a t e r r i t o r i a l sea. Indeed, counsel f o r the Attorney-General of Canada conceded that the waters involved.in t h i s reference are ' i n t e r n a l waters'. I am ... s a t i s f i e d that the d e c l - 86 s i o n i n the Offshore case i s not determinative of the is s u e i n t h i s case. That i s s u e was not even considered by the cou r t . " The d i s s e n t i n g judgment of Seaton, J.A., als o r e f e r r e d to the Offshore . . ' 240 op i n i o n , " B r i t i s h Columbia can only succeed on t h i s branch of the case i f i t i s found t h a t the solum was s i t u a t e i n B r i t i s h Columbia i n 1871 at the time of B r i t i s h Columbia's entry i n t o Confederation ... Canada, on Mie other hand, argues that i n 1871 at the time of B r i t i s h Columbia's entry i n t o the union, land below the low-water mark was regarded at common law as being outside the realm; that i t was not p a r t of the colony of B r i t i s h Columbia i n 1871, and that a t , or f o l l o w i n g union, i t d i d not become part of the province of B r i t i s h Columbia." 241 and concluded -•t-3at > "The court concluded that the land below the low water mark was outside the Colony of B r i t i s h Columbia i n 1871 and was never p a r t of the province. That reasoning i s a p p l i c a b l e here." 242 An appeal to the Supreme Court of Canada i s pending 242A ( i v ) The d i s t i n c t i o n between p r o p r i e t o r s h i p and j u r i s d i c t i o n 243 The d i s t i n c t i o n i s made by Seaton, J.A. between p r o p r i e t o r - s h i p and j u r i s d i c t i o n , "A number of the province's arguments s h i f t e d from sover-e i g n i t y and i n t e r n a t i o n a l law to p r o p r i e t o r s h i p and common law without r e c o g n i t i o n of the step. In my view, except i n so f a r as i n t e r n a t i o n a l law has i n f l u e n c e d domestic law, the law of nations does not concern us. I assume that these were B r i t i s h waters, that they are now Canadian waters and that they are now i n l a n d or i n t e r n a l waters i n an i n t e r n a t i o n a l law sense. But that does not advance B r i t i s h Columbia's p o s i - t i o n because ours i s not an i n t e r n a t i o n a l law question. I t i s a question of p r o p r i e t o r s h i p the answer to which w i l l be found i n the l e g i s l a t i o n and the common law. What we need to know i s whether or not these waters would have been described as par t of the county or part of the realm by 87 reason of t h e i r being inland waters as that term was. used at common law and whether or not they- were part of the colony. At common law the d e f i n i t i o n -of inland water was, and b a s i c a l l y s t i l l i s , geographic. To be Inland, waters must be i n t e r fauces terrae. The most accepted description of waters i n t e r fauces terrae i s that of Lord Hale [ i n De Jure Maris, p. 1, c. 4]: "That arm or branch of the sea which l i e s w i t h i n the fauces terrae, where a man may reasonably discern between shore and shore, i s , or at l e a s t may be, within the body of a county"." The Privy Council, p a r t i c u l a r l y the judgment of Lord Herschell consid- 244 ered t h i s matter i n Re P r o v i n c i a l F i s h e r i e s . In h i s judgment, sai d that whatever proprietary rights were vested i n the Province at Confederation remained there, except such as are by the express enact- ments of the B r i t i s h North America Act, 1867, transferred to the Dominion of Canada. The d i s t i n c t i o n i s a v a l i d one which i s also supported by the decisions i n respect of Indian lands. Lord Watson s a i d , "There can be no a p r i o r i p r o b a b i l i t y that the B r i t i s h Legislature, i n a branch of the statute which professes to deal only with the d i s t r i b u t i o n of l e g i s l a t i v e power, intended to deprive the Provinces of rights which are expressly given them i n that branch of i t which re l a t e s to the d i s t r i b u t i o n of revenues and assets. The fact that the power of l e g i s l a t i n g for Indians, and for lands which are reserved to t h e i r use, has been entrusted to the P a r l - iament of the Dominion i s not i n the l e a s t degree inconsistent with the r i g h t of the Provinces to a b e n e f i c i a l i n t e r e s t i n these lands, a v a i l a b l e to them as a source of revenue whenever the estate of the Crown i s disencumbered of the Indian t i t l e . " 245 he 4. The r o l e of the Courts (a) J u s t i f i c a t i o n e Courts have found j u s t i f i c a t i o n f o r what has been done 88 i n r u l i n g , upon grounds of p u b l i c p o l i c y and of avoiding confusion, that when a matter has been continued f o r some time, the remedy l i e s i n l e g i s l a t i o n and not i n j u d i c i a l r e v e r s a l of already decided matters. , " - 246 Martin, J . (as he then was), i n Sheppard v. Sheppard approved the judgment delivered by Chief J u s t i c e Marshall i n McKeen v. Delaricey, which reads i n part, "... Were th i s Act of 1715 now, for the f i r s t time, to be construed, the opinion of t h i s Court would c e r t a i n l y be, that the deed was not r e g u l a r l y proved • • • • But, i n construing the statutes of a state on which land t i t l e s depend, i n f i n i t e mischief would ensu|» should this Court observe a d i f f e r e n t r u l e from that which has been long established i n the state .... On this evidence the Court y i e l d s the construction which would be put on the words of the Act, to that which the Courts of the State have put on i t , and on which many t i t l e s may probably depend ...." Martin, J . also referred to the signing of rules of Court by a l l the 247 B r i t i s h Columbia judges i n 1906, for the express purpose of avoiding doubts as to j u r i s d i c t i o n and to the exercise of the j u r i s d i c t i o n and i t s acceptance i n other decisions. A f t e r considering that the enactments made by B r i t i s h Columbia had not been disallowed by the Governor General i n Council, and the Federal Parliament had not exercised i t s allocated j u r i s d i c t i o n , he concluded, "This l e g i s l a t i v e and j u d i c i a l i n v i t a t i o n ... to the people of B r i t i s h Columbia to resort to this Court f o r the exercise of i t s divorce j u r i s d i c t i o n presents to my mind the strongest possible case for non-interference with i t s continued exercise. ... here we have a j u r i s d i c t i o n of 31 years founded on a decision most care- f u l l y considered and a f t e r unusual precaution taken as to r u l e s , procedure:.and otherwise, with a f u l l r e a l i z a t i o n of the gravity 89 of the matter and for the- express object'• of removing any h e s i t a t i o n i n the pub l i c mind about resorting to the Court i n the future to obtain r e l i e f by way of divorce. Thirty-one years i s a period of time i n the short l i f e of a colony and Province so young as th i s which r e l a t i v e l y corresponds to a period of centuries i n so ancient a country as England. During the sa i d period many decrees f o r n u l l i t y and di s s o l u t i o n of marriage have been granted, which doubtless have been made absolute by this time .... Further, and of prime importance, many of those whose marriages have been dissolved have remarried i n th i s Province and i n other lands, and have c h i l d r e n of the second marriage .... The circumstances i n my opinion present the strongest possible ground i n the public i n t e r e s t f o r refusing, unless absolutely compelled to do so, to disturb this j u r i s d i c t i o n and br i n g about a s o c i a l and domestic calamity i n our midst 248 (b) Are the Courts the appropriate body to provide for the matter? We respect j u d i c i a l d e c i s i o n making as an objective and r a t i o n a l process, but i t does have l i m i t s which appear i n the process i t s e l f , "... I t i s objective i n that, to the extent that there i s s o c i a l consensus on a p a r t i c u l a r matter, i t w i l l enunciate that consensus. I t i s r a t i o n a l i n that the judge has the duty of integr a t i n g h i s decision with the rest of the law, and also i n that the judge must attempt r a t i o n a l l y to j u s t i f y even his value judgments. I t i s def e c t i v e l y r a t i o n a l only i n that, ...: "(T)he kind of reasoning involved i n the l e g a l process i s one i n which the c l a s s i f i c a t i o n changes as the c l a s s i f i c a t i o n i s made. The rules change as the rules are applied." I t i s i n this power of changing the rules while applying them that j u d i c i a l c r e a t i v i t y consists ...." 249 J u d i c i a l decision making as the vehic l e to int e r p r e t and determine reception of Imperial l e g i s l a t i o n requires f i r s t that the issue must be raised and l i t i g a t e d . The whole matter i s therefore dealt with only at i s o l a t e d times i n respect of i s o l a t e d statutes, as 90 they a f f e c t the l i t i g a t i o n i n question. The whole statement as to reception i s a growing and changing thing governed by this process, but always l i m i t e d by the cases before the Courts. Gray, J . i n a judgment pronounced i n 1877, foresaw no problem i n the non-user' of a p a r t i c u l a r statute u n t i l needed, "The a p p l i c a t i o n or non-application of a statute, or any p a r t i c u l a r part of i t , does not r e s t upon the view or opinion of any one person, however conscientious he may be, but upon the wants and n e c e s s i t i e s of the community; nor does i t depend upon the frequency or common nature of the subject l e g i s l a t e d upon. I t i s s u f f i c i e n t i f the e v i l occurs. The moment i t does, the statute applies. The mere fac t that there has been no c a l l for i t s a p p l i c a t i o n i n the p a r t i c u l a r d i r e c t i o n since the introduction of the statute i s no answer. Its powers may be dormant for years; lapse of time w i l l not destroy them. The occasion which requires the remedy, and the demand for i t , at once give the needed v i t a l i t y , unaffected by the provision of non-user.: 250 In the intervening century, the changes i n the English Law 251 Act and the consideration of a p p l i c a b i l i t y at the present time combine to the e f f e c t that an i n t e r p r e t a t i o n when made w i l l not necess- a r i l y be a precedent at a future time. This does lend f l e x i b i l i t y to the statute law of a developing community, but does so at the cost of a f i n a l i t y i n any determination made. The law i s to be considered as always speaking, but i f i n doing so a decision as to i n a p p l i c a b i l i t y i s always subject to being changed on the grounds of further s o c i a l development. What i s today regarded as a fragmentary mosaic of decisions w i l l become decisions rebus s i c stantibus. The further question a r i s e s , 91 Can we regard decisions that a statute i s not i n a p p l i c a b l e and i n force as binding, whereas a decision of i n a p p l i c a b i l i t y would leave the statute i n quest-ion with the "needed v i t a l i t y " described by Gray, J . 252 to be invoked at a l a t e r date when the occasion demands the remedy? This Chapter has not discussed a l l the B r i t i s h Columbia cases. Those selected for discussion have been chosen to i l l u s t r a t e the problems inherent i n and associated with the reception statute. Blackstone suggested that the c o l o n i a l Courts, subject to the super- intending power of the Imperial Parliament, should determine the answers to reception problems. The increased powers of c o l o n i a l l e g i s l a t u r e s and the growth of c o n s t i t u t i o n a l independence prompted the then Chief J u s t i c e of Ontario, i n 1845, to suggest, "We can hardly suppose a point more e s p e c i a l l y within the province of the l e g i s l a t u r e to decide, than whether a p a r t i c u l a r part of the statute law of England i s or i s not so f a r i n i t s nature applicable to the state of things i n t h i s province." 253 Many j u r i s d i c t i o n s with s i m i l a r l e g i s l a t i o n have undertaken and are advocating l e g i s l a t i v e reform as the only complete, d e f i n i t e way to resolve the problems inherent i n the reception statutes. These w i l l be examined following a consideration of the l e g i s l a t i v e reform that has taken place i n England. 92 FOOTNOTES (Part II) 1. Part II of this thesis has been organized to deal with the issues raised by Cote, op. c i t . (n. 5 p. 19) @ p. 29ff. His views are frequently referred to i n this Part. 2. Smith v. Brown, 2 Salk. 666; 91 E.R. 566, a case involving the sale of a negro i n V i r g i n i a , Holt, C.J. s a i d , "... the laws of England do not extend to V i r g i n i a , being a conquered country t h e i r law i s what the King pleases s i m i l a r l y , when considering the law of Jamaica, i n Blankard v. Galdy, (1693) 2 Salk. 411; 91 E.R. 356 (K.B.); but, read this subject to Lord Mansfield's s i x t h proposition, Campbell v. H a l l (1774), 1 Cowp. 204 @ 209; 98 E.R. 1045 @ 1049, discussed i n f r a , p. 27 3. CotS, op. c i t . pp. 48-9; R. E l s e - M i t c h e l l , "The Foundation of New South Wales and the Inheritance of the Common Law" (June, 1963) 49 Royal Au s t r a l i a n H i s t o r i c a l Society Journal, p. 1 @ 3-4. Prohibitions del Roy (1607) 12 Co. Rep. 29; 77 E.R. 1310, "the law and customs of England cannot be changed without an Act of Parliament, for t h i s , that the law and custom of England i s the inheritance of the subject, which he cannot be deprived of without h i s assent i n Parliament...." 4. 50 & 51 V i c t . , c. 54 (Imp.); Cote", op. c i t . p. 50 n. 125 l i s t s the exceptions: the exercise of the prerogative f i x i n g the date for reception for s e t t l e d colonies, the introduction of the courts, l e g i s l a t u r e s and corporations, what the pre- rogative allows i n England; and what the B r i t i s h Settlements Acts allow; Kenneth 0. Roberts-Wray, Commonwealth and C o l o n i a l Law, (New York, Frederick A. Praeger, Inc., 1966) p. 164 suggests two areas where prerogative may survive: (1) remote t e r r i t o r i e s , e.g. A n t a r t i c a ; and (2) annexed t e r r i t o r i e s where not occupied by B r i t i s h . T." Olawale E l i a s , B r i t i s h C o l o n i a l Law A Comparative study of the Interaction between English and Local Laws i n B r i t i s h Dependencies (London: Stevens & Sons. Limited, 1962) p. 49 l i s t s the cases of early s e t t l e d colonies that preceeded the B r i t i s h Settlements Act, 1843; including the Leeward Islands, Barbados, Bermuda, B r i t i s h Honduras and Bahamas. As to Barbados being a plan t a t i o n , Dutton V. Howell, (1693) Shower 31, 1 E.R. 21. 5. 53 & 54 V i c t . , c. 37 (Imp.); Roberts-Wray, op. c i t . p. 165ff. considers the e f f e c t of this group of enactments. 6. Supra, n. 2. 7. Except Protectorates, v. W.C. Ekow Daniels, The Common Law 93 i n West A f r i c a , Biitterworths A f r i c a n Law Series No. 9 (London: Butterwo'rths, 1964) p. 125ff, as to law i n protectorates and tr u s t t e r r i t o r i e s . 8 Cote'', op. c i t . (n. 5, p. 19), p. 43ff. ; Roberts-Wray, op. c i t . , p. 214, 541. Inhabitants cannot enforce t r e a t i e s i n municipal courts: V a j e s i n g j i J o r a v a r s i n g j i v. Secretary.of State for India- (1924) L.R. .52 (I.A.) p. 357 @ 360;_cf. inhabitants have benefited i n B r i t i s h Columbia where Indian tr e a t i e s made by.the Hudson's Bay Company were treated as " t r e a t i e s " Regina v. White and Bob (1965) 52 W.W.R. 193 @ 198, per Davey, J.A. deeming the H.B.C. to be an "instrument of Imperial p o l i c y " ; and @ 211ff. i n the judgment of No r r i s , J.A. who outlines the h i s t o r y of the area and discusses i t i n r e l a t i o n to ab o r i g i n a l r i g h t s . 9 Elizabeth Gaspar Brown.(in consultation with William Wirt Blume) B r i t i s h Statutes i n American Law 1776-1836 (Ann Arbor: The Univer- s i t y of Michigan Law School, 1964) p. 17ff. 10 Cote'', op. c i t . , p. 41,. 11 Loc. c i t . 12 I b i d . , p. 46. 13 I b i d . , p. 48. Crown's power l i m i t e d a f t e r l e g i s l a t i o n . See In re Bishop of Natal, 3 Moo. P.C. (N.S.) 115. 14 Campbell v. H a l l , supra n. 2. 15 Cotey op. c i t . , p. 46ff. 16 Loc. c i t . ; Jephson v. Riera 3 Knapp.130 @ 151, 2; 12 E.R. 598 @ 606. 17 Roberts-Wray, supra n. 4, p. 337-8. Dutton v. Howell, supra n. 4, as to the authority of the Governor not being a delegation of sovereignty. c f . Cameron v. Kyte (1835) 3 Knapp 332 (J.C.P.C.) where t o t a l sovereignty of a colony i s dele- gated to a Viceroy,.then h i s acts.are v a l i d although not i n conform- i t y with h i s i n s t r u c t i o n s . .Considering c o l o n i a l boundaries, Mclntyre, J.A. dissenting, S t r a i t of Georgia Case, supra (n. 1, p. 19) @ p. 135, deals with c o l o n i a l ..boundaries, "They have the e f f e c t of granting t e r r i t o r i e s ' t o colonial-governorship, and thus a f f e c t i n g the Royal prerogative." Transvaal Raid Case, Reg.v. Jamieson (1896)2 425 as to the governor exercising l e g i s l a t i v e power. 18 Jephson v. Reira, supra n. 16. 19 Foreign J u r i s d i c t i o n Act, 1890, supra n. 5. The Schedules to this Act consist of l i s t s of Statutes which may be extended to a t e r r i t o r y by Order i n Council; Acts which may be revoked or varied by Order i n Council; and a L i s t of Enactments repealed. 94 20. This w i l l be discussed i n part ( c ) , p. 29. 22 25 26 21 Supra, n. 2. Case 15. Anonymous (1722) 2 Peere Williams, 75, M.R.; 24 E.R. 646 (P.C.) . of ...Aliens, R. . v.. Valentine C1871) 10 S.C.R. (N.S.W.) 113^ Reg, v. Bur d e l l , 1 Old. 126 as to jury rights, 23. R. v. Vaughan (1769), 4 Burr. 2500; 98 E.R. 308 @ 311 (K.B.) 24 S. H. Z. Woinarski, "An Introduction to the History of Legal I n s t i t u t i o n s i n V i c t o r i a " (unpublished doctoral t h e s i s ) , discussed by Alex C Castles, "The Reception and Status of English Law i n A u s t r a l i a (1963-1966)"2 The Adelaide Law Review, p. 1 @ 20; and referred to by G. W. Patton, ed.' The Commonwealth of A u s t r a l i a (London: Stevens & Sons Limited, 1952) p. 4, (Volume I I of The B r i t i s h Commonwealth, the Development of i t s Laws and Constitution). S i r William Grant, A. G. v. Stewart, (1817) 2 Mer. 143; 35 E.R. 895 @ 900. Castle s ,l o c . c i t . ; Cote", o p . c i t . , p. 66, n. 259. Durham Report, House of Commons Paper No. 3 of 1839, Arthur Barriedale Keith, ed.,Speeches and Documents on B r i t i s h C o l o n i a l P o l i c y 1763 - 1917, (London: Oxford University Press, 1916) p. 115. 27 Provision was made i n th i s way for the o r i g i n a l mainland colony of B r i t i s h Columbia and for the Stickeen t e r r i t o r i e s . 28 Brown, supra n. 9, p. 4f f . 29 Supra, n. 4. Royal i n s t r u c t i o n s are p a r t i c u l a r l y mentioned i n s. 3 which deals with the power to delegate l e g i s l a t i v e power. 30 Cote, op. c i t . (n. 5 p. 19), p. 49. 31 This w i l l be discussed i n Section 5, p. 49ff. 32 c f . Macdonald v. Levy (1883) Legge 39, statute only intended to confirm the common law and not a l t e r i t . I t may be that reception statutes only provide a cut-off date for English statutes that may be applicable, v. i n f r a , as to New York, p. 147. 95 33 This w i l l be discussed at p. 69, 34 Castles, supra n. 2.4, p.- 94. Queensland separated i n 1859, as acknowledged' In the Supreme Court Act 1867 (.Queensland). Papua New Guinea: Papua was annexed to Queensland i n 1884 and transferred to the-Commonwealth i n 1906. New Guinea was made a mandate i n 1921. In 1973 i t became a separate State. 35 The h i s t o r y of New Zealand i s s i m i l a r l y complex, v_, J . L. L. Robson, gen. ed., New Zealand (London: Stevens & Sons Limited, 1954), p. 2 f f . (Volume IV of The B r i t i s h Commonwealth, the Development of i t s Laws and Co n s t i t u t i o n ) . New Zealand also provides for native customary law: Arani v. Public Trustee of New Zealand (1920) A.C. 198, a case referred to His Majesty i n accordance with the prerogative power to hear appeals from the Native Appellate Court of New Zealand.. New Zealand i s treated as a s e t t l e d colony and has English law as at 14 January, 1840, Roberts-Wray, supra n. 4,p. 629. 36 Cote, op. c i t . (n. 5 p. 19), p. 52ff. 37 43 Geo. I l l , c. 138 (Imp.) 1803; 1 & 2 Geo. IV, c. 66 (Imp.) 1821: v. Appendix A III (i) ( i i ) , P- 2 1 5 » i n f r a - 38 Supra n. 5. 39 An Act to provide f o r the Administration of J u s t i c e i n Vancou- ver's Island, 12 & 13 V i c t . , c. 48 (Imp.) 1849, v_. Appendix A I I I (iii)..,. p. P- 215, i n f r a . 40 Cote, l o c . c i t . 41 The phrase "imperial character" i s taken from a speech to Parliament at Westminster made by Edmund Burke, 19 A p r i l 1774, printed i n Problems of Parliamentary Government i n Colonies (London: The Hansard Society, 1953) p. 116. 42 The phrase i s taken from the Colo n i a l Laws V a l i d i t y Act, 1865 '29' &:'~302.Viet'iycVi63". (Imp?> v 3 A p p e n d - i v A, V T , l t p. 2 ^ 3 , i n t r a . 43 I M d . The Declaratory Act, 1766. 6 Geo. I l l , c. 12 (Imp.) which as- serts Parliament's sovereignty should not be overlooked. I t was not repealed u n t i l S.L.R. 1964. 44 30 & 31 V i c t . , c. 3 (Imp.) v. Appendix A, IV , p , 221. 45 Loc. c i t . 96 Roberts-Wray, supra n. 4, p. 254 as to disallowance which has not been exercised as to Canada since 1873. M e t h e r i l l v. Medical Council of B r i t i s h Columbia and Milne, (1892) 2 B.C.R. 186. 34 & 35 Henry VIII, c. 8 (Imp.) f ^ n > 53, i n f r a . 1 W. & M. sess. 2, c. 2 (Imp.) Cote, op. c i t . (n. 5 p. 19), pp. 32, 35. S i m i l a r l y as to repeal. Bank .of U.C. v Bethune, 4 U.C;0'.B. (O.S.) 165. Castles, s up ra, n. 24, p. 3.; E l i a s , supraai. 4, p. 51; cf . Roberts-Wray, op. c i t . , p. 50, treating Boothby, J. as not merely obstructive, but as making a contribution i n "provoking parliament i n t o enacting a charter of freedom f o r c o l o n i a l l e g i s l a t u r e s . . . . " , and at p. 39 8, summarizing the repugnancy cases. 25 & 26 V i c t . c. 11 (Imp.) and 53 & 54 V i c t . c. 26 (Imp.) re A u s t r a l i a ; Supra n. 44; Roberts-Wray, op. c i t . , p. 256, discusses the e f f e c t of the Statute and notes that only .. 2 s u b s t a n t i a l l y changes the law. The other provisions confer the status of Dominions which had been arri v e d at the Imperial Conference 1926 (Cmd. 2768 Imp.) and Imperial Conference 1930 (Cmd. 3717 p. 17-19, approving the Report of the 1929 Conference on the operation of Dominion Legislation.) v_. John Gough, Imperial Conferences 1887 - 1926 (unpublished paper, submitted f o r the Native Sons of Canada Scholarship, 1927-1928) has many i n t e r - esting aspects of the r i s e of dominion status i n Canada, and of the resistance thereto. R. v. DeBanou (1969) 2 D.L.R. (3d) 424; 67 W.W.R. 54; [1969] -3—/-Gv&rGT—157,considering 34 & 35 Hen.VIII c. 8 (Herbalists Act) B i l l 9, 1939, "An Act to Amend the Supreme Court Act," (R.S.C 1927 c. 35 s. 54 (Canada)), proclaimed i n force 23 December 1949. Attorney-General f or Ontario v. The Attorney General for Canada, [1947] A.C. 127. Supra, n. 11, p. 20. Roberts-Wray, op. c i t . , p. 832-3. Paul Gerin-Lajoie, C o n s t i t u t i o n a l Amendment i n Canada (Toronto: University of Toronto Press, 1950) p. 129ff; p r o v i n c i a l p a r t i c i p a t i o n , p. 153ff. 9 7 57 • O r i g i n a l l y the Governor General was the appropriate channel of communication. The Canadian Government now has the ri g h t of d i r e c t correspondence with the B r i t i s h Prime Minister. 58 (1976) 11 A.L.R. 142 (J.C.P.C.) 5 9 c. 60, 1968 (Imp.) 60 c. 56, 1948 (Imp.) 61 57 & 58 V i c t . , c. 60 (Imp.) 62 Supra, n. 58, at p. 147. Criminal Law Act, 1967 63 as to admiralty j u r i s d i c t i o n , The Admiralty Offences (Colonial) Act, 1849 12 & 13 V i c t . , c. 96 (Imp.); and the Act of 1860 23 & 24 V i c t . , c. 122. As to Admiralty law, v. i n f r a , p. 56ff. 64 Loc. c i t . 6 5 Offences at Sea Act, 1799 (39 Geo. I l l , c. 37 (Imp.)) The case referred to i s William Holyman & Sons. v. Eales [1947] Tas. S.R. 11, @ p. 12, a judgment of Morris, C.J., "I think the prosecution i s c l e a r l y maintainable only as a prosecution for an offence under English law.... The law of Tasmania does not run outside the t e r r i t o r i a l waters of the State, i . e . , the conventional three miles from the coast. ... The law applicable to her upon the high seas ... i s the law of England (the reference "her" i s to the ship i n question where the offence, cruelty to an i - mals under the Protection of Animals Act, 1911 (1 & 2 Geo. V, c. 27 (Imp.)) occurred.); @ p. 13, traces the Admirals' j u r i s d i c t i o n , l i m i t e d by 13 Rich. I I , c. 5 (Imp.) and 15 Rich. I I , c. 3 (Imp.) which was transferred by 28 Hen. 8, c. 15 (Imp.) to commissioners and the commissioners' j u r i s d i c t i o n was extended by 39 G e o . I l l , c. 37 (Imp.) 66 Supra n. 44 p. 95; the e f f e c t of the Statute, v_. supra p.33ff; 67 Roberts-Wray, supra n. 4 p. 92, pp. 555-6. 68 Lord Diplock, O t e r i Case, supra, n. 58,ipc.cit."ambulatory i n it s - "effect' 1-.—— - - ' 69 Cote, op. c i t . (n. 5 p. 19), p. 54; R. v. Roblin (1862) 21 U.C.Q.B. 352@ p. 354-5 (Ont.); K e l l y v. Jones (1852) 7 N.B.R. 473 @ 474 (N.B.) This i s d i s t i n c t from a-statutory p r o v i s i o n introducing law "from time to time"; cf. The Attorney General Act, (B.C) supra p. 17. 98 Supra n. 68. Such law i s received only In the absence of l o c a l l e g i s l a t i o n , v. i n f r a p. 59 as to A p p l i c a b i l i t y . A.G. v. Stewart, supra n. 24, "Whether i t be a law of l o c a l p o l i c y adapted s o l e l y to the country i n which i t was made, or a general regulation of property equally a p p l i c - able to any country i n which i t i s by the rules of English law that property i s governed. I conceive that the object of the statute of mortmain was wholly p o l i t i c a l — that i t grew out of l o c a l circumstances, and was meant to have merely a l o c a l operation." Reynolds v. Vaughan, (1772) 1 B.C.R. v, pp. 3-4. (1848) 2 N.S.R. 287 @ p. 289ff; this case has-been approv- ed by Manson, J . , R. v. Crown Zellerbach Canada Ltd., supra, n. 29 p. 22. Chronological Table and Index of Statutes, 1st. ed., (London: Queen's P r i n t e r , 1870) discussed i n Chapter V, i n f r a , n. 24. p. 119. CotS, op. c i t . (n. 5 p. 19), p. 56: Roberts-Wray, supra n. 4, p. 565ff, agree with A.E.W. Park, The Sources of Nigerian Law. (London: Sweet & Maxwell, 1963) @ p. 20, where he presents A l l o t t ' s argument, and rebutts i t . The reference i s to Anthony N. A l l o t t , Essays i n Af r i c a n Law, with s p e c i a l reference to the law of Ghana (Butter- worth's A f r i c a n Law Series No. 1) (London: Butterworth & Co. Publishers Ltd., 1960). Anthony N. A l l o t t , J u d i c i a l and Legal Systems i n A f r i c a (London: Butterworths, 1970 - 1st ed. 1962) (Butterworth's A f r i c a n Law Series No. 4), Preface, p. v i , discusses the re v i s i o n of the f i n a l appeals system "One of the factors which used to keep the l e g a l systems of common law A f r i c a n countries together has thus disappeared." cf. Hector Hughes, National Sovereignty and J u d i c i a l Autonomy i n the B r i t i s h Commonwealth of Nations. (London: P. S. King & Son, Ltd., 1931.) Mark R. MacGuigan, "Precedent and Po l i c y i n the Supreme Court, "Canadian Bar Review (1967) , v o l . 45, p. 627 @ p. 657. Attorney-General of Ontario v. Canada Temperance Federa- t i o n (1946) 62 T.L.R. 199, J u d i c i a l Committee not bound by previous judgments. Park, op. c i t . , p. 23,as to the J.C.P.C. i n respect of a Nigerian appeal (where the reception date i s 1900) i n the case of United A f r i c a Co. Ltd. v. Saka Owoade [1955] A.C.130, decided on the basis of the rule established i n Lloyd -v. Grace. Smith and Co. [1912] A.C. 716. He also notes that i t would be possible to preclude such reference, i f desired. 5 99 7;8 The " o l d " American colonies did proscribe case law a f t e r the revolution by statute, p a r t i c u l a r l y New Jersey, Kentucky, and Pennsylvania, v_. Brown supra n. 9 p. 41. cf. Cote, supra (n. 5 p. 19) @ p. 57 n. 185 regarding mer- c a n t i l e law. 79 R. v. Carriere, Martin & Bi e r , (1955) 113 C.C.C. 11. 80 [19633 40 D.L.R. (2d) 843 (B.C.S.C.), Verchere, J. @ 849. The case was appealed and the decision reversed on other grounds 50 D.L.R. (2d) 338 and [1966] S.C.R. 69. The Rule i s given (1867) L.R. 4 Eq. 295. 81 (1918) 38 D.L.R. 601; (1917) 3 W.W.R. 849 (Alta. S.C., App.Div.), where i t was decided that l o c a l conditions were an exception to the rule . cf. O'Keefe and Lynch of Canada Ltd. v. Toronto Insurance and Vessel Agency Ltd. [1926] 4 D.L.R. 477; 59 OiL.R. 235 H.Ct.) Rose, J . , who rejected a custom on the basis that i t had not been shown i t had been established before the reception date. Re Bataray's P r o h i b i t i o n Application, 51 W.W.R. (N.S.) 449 (S.C.C.) Simly. Keewatin Case Court of Appeal, v. n. 84 i n f r a . 82 v. n. 77. 83 Cote', loc. c i t . ; A l l o t t , p. 51; Roberts-Wray, op. c i t . , p. 572. cf. O'Keefe & Lynch v. Toronto Insurance Vessel Agency [1926] supra, n. 81. X - , >. 84 Keewatin v. Kenora (1908) 16 O.L.R. 184 (C.A.); 16 O.L.R. 184; Clarke v. City of Edmonton [1930] S.C.R. 137; (1929) 4 D.L.R. 1011; Polakoff v. Winters Garment Co., 62 O.L.R. 40; [1928] 2 D.L.R. 277; d i s t . Kuzych v. White, [1949] 4 D.L.R. 662- ; affirmed [1950] 2 W.W.R. 255. 85 Uniacke v. Dickson, supra n. 73. 86 The n a v i g a b i l i t y of Canadian r i v e r s , to the point of considering them to be a highway, has been developed i n h i s t o r y as w e l l as i n law, y_. Innes, op. c i t . , n. 20 p. 21. Ad medium filum presumption i s not i s not applicable to Lake E r i e , C a r r o l l v. Empire Limestone Co. (1919) 45 O.L.R. 121. 87 D. J. Thorn, "Riparian Rights," The Canadian Surveyor, (July, 1931, p. 7. The English law was applied, but the presumption of ownership re- butted by s i z e and n a v i g a b i l i t y . Re B r i t i s h Columbia Fisheries (1913), 47 S.C.R. 493; [1914] A.C. 153; 83 L.J.P.C. 169, law of England as to the rights of the p u b l i c to f i s h i n t i d a l waters i s the law of the Province. 88 B P T v P r f i n n •-anA .Rreatar Winnipeg Water D i s t r i c t (1921) 57 D.L.R. 185 (Manitoba C.A.) 100 89 (1907) 13 O.L.R. 237, appeal c i t a t i o n , n. 84; which case i s distinguished by the Iverson Case. 90 Canadian Exploration v. Rotter [1961] S.C.R. 15. Locke, J. traces English Law as to r i p a r i a n ownership. 91 Esquimalt Waterworks v. City of V i c t o r i a , (1906) 12 B.C.R. 302, Duff, J. (as he then was) was restored on appeal to the Privy-' Council [1907] A.C. 499. In re M i l s t e d (1907-8) 13 B.C.R. 364, r i p a r i a n rights e x i s t i n this Province, subject to being diminished or even wiped out by a water record granted under the Water Clauses Act. West Kootenay Power and Light Co. v. City of Nelson (1905) 12 B.C.-Rv 34, Martin, J. 92 At least,ten statutes, most of which have been amended several times, are i n force i n B r i t i s h Columbia as r e l a t e to water: •Ditches and 'Watercourses Act, R.S.B.C. 1960 c.117; Drainage Dyking and Development Act, R.S.B.C. 1960 c. 121; Energy Act, S.B.C. 1973 c. 29; E c o l o g i c a l Reserves 'Act,S.B.C. 1971 c. 16; Health Act. R.S.B.C. 1960 c. 170; Land Act, S.B.C. 1970 c. 17; P o l l u t i o n Control Act, R.S.B.C. 1960 c. 289; Power Act. R.S.B.C. 1960 c. 293; Water Act, R.S.B.C. 1960 c. 405; Water U t i l i t i e s Act S.B.C. 1973 c. 91. 93 [1959] S.C.R. 513, 18 D.L.R. (2d) 81,affirming [1956] O.Rj. 801, 5 D.L.R. (2d) 309, which was varied i n part, see [1955] O.R. 565, [1955] 4 D.L.R. 408. Not appld. C o r n e i l l i e v. Senkiw, 24 W.W.R. 152 (Manitoba); Followed, Rowan v. Mann and Mann, 19 D.L.R. (2d) 163. 94 [1947] A.C. 341, considered Atkinson v. Fleming, [1955] OvR. 565, and distinguished on appeal (n. 93); Applied Paterson v. Hardy 62 W.W.R. 219, and Lane v. B i e l , [1971] -:;2 W.W.R. 128. 94A [1959] S.C.R. 513, @531ff. He approves Noble v. Calder [1952] O.R. 577. cf. Anglin, J . i n Keewatin (n. 59) as to ri g h t of navigation jurae naturae i n Canadian navigable r i v e r s . ( c f . on appeal, n. 84). 95 (1910) 15 B.C.R. 367, Irvin g , J.A. 96 E l s e - M i t c h e l l , op. c i t . (n.3), p. 6. 97 Supra n. 73. v. Re Maclsaac and Beretanos et a l , (1972) 25 D.L.R. 25 D.L.R. (3d) 610 (Prov.Ct. B.C.) @ 136, Levy Prov. Ct. J . , as to s. 46 of former Landlord and Tenant Act (R.S.B.C. 1960, c. 207,s.46), "In l e g i s l a t i n g s. 46, the p r o v i n c i a l l e g i s l a t u r e must have con- ' sidered the common law ri g h t to privacy, and the need to incorporate that r i g h t i n a statute, thereby creating a statutory t o r t . " Dis- approved Peter Burns, "The Law and Privacy: The Canadian Experience," 54 The Canadian Bar Review (March 1976) p. H p . 25. The matter i s now regulated by Statute of the Province (S;B.C. 1968, c 39). 98 (1924) 4 D.L.R. 635 (Alberta S.C. App. C i v . ) , the reason f o r the rule has been destroyed. 99 In re Simpson Estate, [1927] 4 D.L.R. 817; (1927) 3 W.W.R. 543; 23 A l t a L.R. 374. The Rule i s found (1591) 1 Co. Rep. 93B; 76 E.R. 206. The Simpson case was affirmed on other grounds, [1928] 3 D.L.R. 773. 101 100 Doe. Anderson v. Todd (1845) 2 U.C.Q.B. 82. 101 Coke, S i r Edward, F i r s t Part of the I n s t i t u t e s of the Laws of England; or, Commentaries upon L i t t l e t o n . 1894 (15th ed.), 97, 142. 102 Brown, op. c i t . , passim. 103 Charles Kingsley Meek, Co l o n i a l Law (a Bibliography)(London: Oxford University Press, f o r N u f f i e l d College, 1948) Preface. 104 The r e v i s i o n of the English statutes w i l l be discussed i n Chapter V (Part III) i n f r a , p. 119. 105 The phrasing of the English Law Act, v_. Schedule A, I. 106 36 & 37 V i c t . , c. 66 (Imp.). See al s o : Appellate J u r i s d i c t i o n Act, 1876, 39 & 40 V i c t . , c. 59 (Imp.). 107 John Delatre Falconbridge, Banking and B i l l s of Exchange. (Toronto: Canada Law Book Company Limited, 1956, 6th ed.) 10-11. 108 E a r l of Exford's Case, (1615) 1 Ch. Rep. 1. 109 Cote, op. c i t . , (n. 5, p. 119), p. 58. 110 v. Appendix A, I, p. 209. 111 Farr, op. c i t . , p. 7. The Ordinance received Royal,assent Nov. 14, 1861. 112 Farr, op. c i t . , p. 7, n. 21; and Appendix A, I I I , p. 215. Vancouver Island Acts 1859-1863 ( V i c t o r i a , V. I.: Printed "Evening Express" o f f i c e . 1864), XXX The Vancouver Island C i v i l Procedure Act, 1861, p. 99ff. 113 Loc. c i t . 114 Douglas Proclamation 8 June, 1859, Appendix A, III v_. p. 216. 115 C.S.B.C. 1888, c. 68; This statute i s s p e c i f i c a l l y dealt with i n the Report'of Theodore Davie to His Honour Edgar Dewdney, Lieutenant Governor of B r i t i s h Columbia, Draft Revised Statutes of B r i t i s h Columbia 1896, p. 4, i n i n respect of l e g i s l a t i o n by reference. 116 being R.S.B.C. 1897, c. 56 (Supreme Court A c t ) ; R.S.B.C. 1897, c. 102 (Insolvent Estates A c t ) ; and R.S.B.C' 1897, c. 6 (Aliens Act). 117 Cote, op. c i t . p. 59ff. 118 (1857) 8 E. & B. 610; 120 E. R. 228 (Q.B.). 119 (1874) 1 B.C.R. 25, discussed W.H.P. Clement, The Law of" the Canadian Constitution (Toronto: The Carswell Company, Limited 1916 (Third Edition) p. 275. 102 120 3-4 V i c t . c. 86 (Imp.). 121 In some cases, the j u r i s d i c t i o n was given to the Governor to exercise. 122 Cote, l o c . c i t . , In the older colonies the Governor acted. 123 Cote*, op. c i t . , p. 60. 124 v. supra (n. 29, p. 22) @ p. 3-4. 125 S.B.C. 1871, Appendix, No. 35. 126 Cote, op. c i t . , p. 61. But the property rights and l e g i s l a t - ive competence may not always be i n some l e g i s l a t u r e , v. i n f r a p. 85. F a r r i s , C.J.B.C., Reference The S t r a i t of Georgia (B.C.) Supra (n. 1, p. 19), @ 102: " At the time that the present boundaries of B r i t i s h Columbia were established, the Crown i n the Right of the Colony owned i n fee a l l the unalienated land and a l l the mines and minerals therein: See A.G.B.C. v. A.G. Can. (1889), 14 App. Cas. 295 at 301: 'The t i t l e to the p u b l i c lands of B r i t i s h Columbia has a l l along been, and s t i l l i s , vested i n the Crown; but the r i g h t to administer and to dispose of those lands to s e t t l e r s , together with a l l r o y a l and t e r - r i t o r i a l revenues a r i s i n g therefrom, had been trans- ferred to the Province before i t s admission i n t o the fe d e r a l union.'" 127 Supra (n. 1, p. 19). 128 I f B g g e T g e f e l ^ Cas. 295, which has been approved and r e f e r r e d to several times. 1 2 9 B r i t i s h North America Act, 1867, supra (n. 11. p. .20).. Diefenbaker, John G., The Right Honourable, The Years of Achievement 1957-1962. One Canada, (Memoirs of John G. - Diefenbaker) (Toronto: Macmillan of Canada, 1976) p p.56ff. 103 130 Op. C i t . , p. 57. 131 I b i d . , p. 58. 132 R. v. Liverpool J u s t i c e s ; Ex. p.Molyneux [1972] 2 Q.B. 384; [1972] 2 A l l E.R. 471; Reference re Offshore Minerals (B.C.) 62 W.W.R. 21, [1967] S.C.R. 792, 65 D.L.R. (2d) 353 cf. Court of Appeal as to " i n t e r n a l waters" i n Reference re S t r a i t of Georgia, (B.C.) supra. 133 v. D.P. O'Connell and Ann Riordan, ed., Opinions on Imperial C o n s t i t - u t i o n a l Law. (Melbourne: The Law Book Company Limited, 1971), "Co l o n i a l Admiralty J u r i s d i c t i o n " , "Powers i n the T e r r i t o r i a l Sea", p a r t i c u l a r l y opinion of J.I.. Woodroffe, A. P h i l l i p s , 26 January, 1893, p. 202. 134 O r i g i n a l l y the Governor was appointed Vice Admiral and Douglas used t h i s as one of h i s t i t l e s i n the Vancouver Island Colony. 135 Loc. c i t . , p. 240, Note to Clause 8. O'Connell and Riordan, op. c i t . , p. 202, tracing the h i s t o r y of the admiral's j u r i s d i c t i o n , as does Wm; Holyman v. Eyles, [1947] S.R. (Tas.) 11. 136 3 & 4 Wm. IV, c. 41 (Imp.) Vice Admiralty Court. 137 12 & 13 V i c t . c. 96 (Imp.) 138 O'Connell and Riordan, Opinion (Canada) 1883, op. c i t . , n. 133, The Practice was i n the early c o l o n i a l period, to s c r u t i n i z e l e g i s - l a t i o n before i t came into operation, avoiding "the d i s s a t i s f a c t i o n created by amendment or repugnancy. In t h i s way uniformity and a measure of p o l i t i c a l c ontrol was effected, cf. s p e c i a l case of Can- adian l e g i s l a t u r e , Merivale to Desart, 6 March, 1852, "... on a somewhat d i f f e r e n t footing from those ordinary chartered colonies, under the provisions of the Canada Union Act. They require no confirmation by the Crown, except i n cases where they are s p e c i a l l y reserved for the Crown's assent." 139 The Co l o n i a l Courts of Admiralty Act 1890 53 & 54 V i c t . c. 27 (Imp.). 140 Opinion 27 May 1920 (Canada), O'Connell, op. c i t . , p. 109 @ 110. 141 v. Appendix A VI 2, p. 225, p a r t i c u l a r l y s. 3 and 6. 142 I n f r a , p. 82, 85. 143 Falconbridge, Banking and B i l l s of Exchange, op. c i t . , p. 426. 104 144 Supra, p. 51 145 White Book: The Annual P r a c t i c e F i r s t published i n 1883. Preface to Fourth ed. of Supreme Court P r a c t i c e , 1975, being 100th Anniversary of 1875 Judicature Act, (2 v. London, Sweet & Maxwell 1975) p. v i i . Bullen and Leake and Jacob's Precedents of Pleadings. The Common r Law. M.brary'_j'. No; 5" (London, Sweet and Maxwell 1975, )Foreward by v° Lb'rcTDenn:irig~M*.R?.' • F i r s t published 1860 as a c o l l e c t i o n of pleadings. 146 Cote, op. c i t . , p. 76. 147 I b i d . , p. 77. 148 I b i d . , p. 62. 149 r e l a t i n g to Upper Canada. 150 Supra, p. 32ff. 151 Supra, p. 28, n. 22. 152 Roberts-Wray, op. c i t . , p. 544. 153 W. C. Ekow Daniels, The Common Law i n -West A f r i c a , (Butterworth*s A f r i c a n Law series v o l . 9, London: Butterworths, 1964), p. 327. 154 (1914) 20 B.C. R, 243, approving Vacher [1913] A.C. 107 @ 113 Vicount Haldane, L. C. Also Bouck, J . , quoted p. 68 i n f r a . 155 [1927] 3 W.W.R. 534 ( A l t a . C.A.), affirmed f o r other reasons Simly, Re Budd (1958) 24 W.W.R. 383 (Alta. S.C.) [1928] S.C.R. 329, Cote', op. c i t . , p. 64, n. 248 re Doyle case. 156 Cot/, op. c i t . , p. 65, Roberts-Wray, op. c i t . , p. 546. 157 This i s the date chosen i n the most recent B r i t i s h Columbia case, The Horse and Carriage Inn Ltd. v. Baron (1975) 53 D.L.R. (3d) 426, discussed i h f r a p. 64ff. 158 (1839), Legge 140 at p. 153, '•- Stephen--j 105. 159 (1909) 14 B.C.R. 142. 160 MacKenzle v. MacKenzle (1970) 73- W.W.R. 206, McFarlane, J.A. @ pp. 210-211. S i m i l a r l y , Hock v. Hock (1970) 75 W.W.R. 87, McFarland, J . 1 f\ i t h i s i s a consideration of circumstances at the date of the case, and not at the reception date. 162 G i l b e r t D. Kennedy "Introduction of English Laws: So Far As The Same Are Not From Local Circumstances Inapplicable," U.B.C. Legal Notes(1953) v o l . 2, 419 @ 423. cf« Bouck, J. p. 64 af t e r English Law Act Amendment. 163 Attorney General of Canada v. R i t c h i e Contracting & Supply Co. et. a l . (1914) 20 B.C.R. 333 @ p. 359 M c P h i l l i p s , J.A. cf. Hunter, C. J. as to "latency" i n Attorney General B.C. v. Canadian P a c i f i c Railway.(1905) 11 B.C.R. 289 @ 296. 164 Supra (n. 29, p. 22), 111 c.c.c. @ p. 51. 165 (1908) 13 B.C.R. 486 @ 507. 166 Supra p. 157 167 8 & 9 V i c t . c. 106.(Imp.) 168 R.S.B.C. 1960, c. 129: v. Appendix A I as to various forms of English Law Act. 169 v. Appendix A V. Note p a r t i c u l a r l y that the 1872 Statute applied only to l e g i s l a t i o n enacted a f t e r 35 V i c t o r i a i n B r i t i s h Columbia. 170 As to i n t e r p r e t a t i o n i n B r i t i s h Columbia, c f . discussion of New South Wales Law, i n f r a p. 162. where the date of reception i s dec i s i v e . S i m i l a r l y Kennedy i n t e r p r e t a t i o n before 1960 Amendment. Supra, n. 162. 171 The various forms are set out i n Appendix A, I. 172 Roberts-Wray, bp. c i t . , p. 555. See also Wpinarski, supra n. 24, p. 29. As to being l o c a l as confined to a p a r t i c u l a r l o c a l i t y or i n s t i t u t i o n in-England, v. Clement supra (n. 119, p. 101) 2nd p. 51; Cote', supra (n. 5, p. 19) p. 71ff as to this question and as to c a p a b i l i t y of enforcing i n only a portion of the Province. 106 Cote, op. c i t . , pp. 68-9. (1816), 2 Mer. 143, considering, 9 Geo. II c. 36, (1735) (Imp.) As to criminal law: Clement, supra (n. 119, p. 101), p. 291, as -to eliminating a p p l i c a b i l i t y and leaving sole test "Is the Imperial Statute l o c a l i n the sense above indicated?" ' A f t e r 40 Geo. I l l c. 1 (U.C.), l a t e r superceded by Code. Ib i d . , p. 160. In re Pearse (1903) 10 B.C.R. 280, Drake, J. approving Jex v. McKinney (1889) 14 A.C. 77 ( B r i t i s h Honduras re Mortmain). & numerous other cases, unless provided d i f f e r e n t l y as i n Ontario. Doe. Anderson v. Todd, 2 U.C.Q.B. 82, @ p. 83, Robinson, C. J . Mercer v. HEWSTON (1859) 9 U.C. C P . -349. Re Creery, (1960) 39 W.W.R. 620 (B.C. Co.Ct.), Clearihue, C.C.J. Attorney General ex r e l . Kent v. Ruffner (1906) 12 B.C.R. 299, @ 301, Ir v i n g , J . Hinton E l e c t r i c Co. v. Bank of Montreal (1903) 9 B.C.R. 545, Hunter, C. J. considered 16-17, V i c t . c. 59 (Imp.). (1889) 14 App. Cos. 77; 58 L.J.P.C. 67 @ 69. Referred to i n Sheppai Supra n. 157, Bouck, J . @ p. 436. Horse & Carriage Inn Ltd. v. Baron [1975] 53 D.L.R. (3d) 426, Bouck, J. @ p. 433. Supra, n. 178 Penner v. Penner [1947] 4 D.L.R. 879, as to 4 Geo. IV c. 76 (Imp.) Robinson, C. J . i n Shea v. Choat (1846) 2 U.C.Q.B. 211 (C.A.) approved by Manson, J. Regina v. Columbia Paper Co. Ltd., supra, n. 29, p. 22. Clement, op. c i t . , (n. 119, p. 101) 2nd ed., p. 49 as to headnote th i s case being misleading. Uniake v. Dickson (1848) 2 N.S.R. 287, @ pp. 289-291. Appendix A, I., i n f r a p. 209. [1908] A.C. 573; 77 L.J.P.C. 121 sub nom. Watts v. Watts, reversing 13 B.C.R. 281. The quotation i s at p. 287. 107 19 Q. 193 194 196 199 llTT.L^W3- ^ ' J ; 1 9 ' P ' 101hmem±rd E d i t i o n p p . 2 8 2 , 297) 1904 (Second E d i t i o n p . 4 6 ) . 1 9 1 Bland v. Agnew 119321 3 W.W.R. 222 (B.C.C.A.) frfTXT^tt S-7^r 1 B - C - ( p t 3 ) P- 2 5 ̂  Scott v. Scott. 4 B.C.R. 316 Watt v. Watt (sub-nom Watts) - 1908, A.C. 573- 77 L.J P.C. 121, cf. dissenting judgment of Begbie, C, J . ' i n t> . V. o . . The Act ( s l i g h t l y amended) was f i r s t enacted i n 1897 and appeared as a B r i t i s h Columbia enactment y_. Kennedy supra• (n. 162, p. 105). p. 420: As to the p r o h i b i t i o n s e c t i o n , useless u n t i l 1938, was i t (1) as both machinery and the r i g h t of appeals missing, "from l o c a l circumstances -inapplicable" (Kennedy) or (2) applicable but dormant (C.A. Minority Densmore Brown v. Brown (1956), 20 W.W.R 321; 6 D.L.R. (2d) 693 (B.C.C.A.). This was the r e s u l t i n the Supreme Court of Canada, although they did not deal with the applicable but dormant theory. Kennedy, supra (n. 162, p. 105) p. 421. 195 Martin, J. (1908.) 13 B.C.R. 487 @ 491. .Sheppard v. Sheppard (1908) 13 B.C.R. 487 @ p. 496-7 (Martin J.,.as he then was). ' 197 L o c . • c i t . , @ p. 491ff discusses Begbie, C. J. "refuse to j o i n i n the exercise of the alleged j u r i s d i c t i o n " but a c t u a l l y d i d exercise i t ; also Clement, J . , dissenting judge i n Sharpe v. Sharpe, Martin J . , considered Begbie, C. J.'s bachelorhood a factor and the Roman Catholi c convictions of other judges. At p. 495 discusses the signing of the Divorce-rules. 198 Gray, J . , S. v. S., supra. n. 192, @ p. 31, followed i n Sheppard Case. Martin, J . @ p. 504, d i f f i c u l t y r e c o n c i l i n g Begbie, C. J . i n the Sharpe Case with h i s subsequent decision R. v. Ah Pow (1880), 1 B.C.R. (pt 1) p. 147. (1875), L.R. 6 P.C. -381 @ p. 393 approved Sheppard Case. Martin, J . , supra n. 196, @ p. 512.: — 108 200 Rand, J . , 10 D.L.R. (2d) 561 @ 567 (discussing Watts sub, nom. Watt) i n Hellens v. Densmore (1956) 5 D.L.R. (2d) 203; 19 W.W.R. 252 (B.C.C.A.); on appeal sub, nom. Hellens ( f a l s e l y c a l l e d Densmore)v. Densmore 10 D.L.R. (2d) 561 (S.C.C.). Dr. G i l b e r t Kennedy, "Case- and Comment: Densmore v. Densmore," " (1956) 34 Canadian Bar Review p. 825, @ 829-30. Dr. Kennedy further examined the problem, "Introduction of English Laws: 'So' Far as The Same Are Not From Local Circum- stances I n a p p l i c a b l e , " 1 supra (n. 162, p. 105). Note: The Densmore case was reversed by the Supreme Court of Canada a f t e r the p u b l i c a t i o n of these a r t i c l e s . 201 Kennedy, supra (n. 200) p. 830. 202 Kennedy, supra (n. 162, p. 105) p. 202. 203 10 D.L.R. (2d) 561 @ 568: 204 Densmore Case supra n. 200, r e f e r r i n g to the Sheppard Case 13 B.C.R. 487 @ p. 503-4. 205 Supra, n. 200, 10 D.L.R. (2d) 561. 206 Loc. c i t . , p. 580. 207 Kennedy, l o c . c i t . 208 (1959), 9 U.C.C.P. 349, discussed by Kennedy, o p . : c i t . @ 838 & 423, res p e c t i v e l y . 209 Martin, J . , Sheppard Case, supra n. 196 @ p. 511. 210 Supra (n. 11, p. 20). 210A E. A. Drieger, op c i t (n. 10, p. 19) p. 706 r e " p i t h and sub- stance" where a future p r o v i n c i a l statute i s involved (as com- pared with one already i n f o r c e ) . 211 Under a s . 91.head. Canada may more properly be described as having a unitary c o n s t i t u t i o n with f e d e r a l features, based on 109 the union of formerly autonomous colonies. The problems were forseen and are outlined by A. 11. F. Lefroy, The Law of L e g i s l a t i v e Power i n Canada, Toronto: The Toronto Law Book and'Publishing Company, Limited, 1897-1898. 212 Supra n. -11, p. 20 v. Appendix A IV. Robert H. Barrigan, "Time Limitations on Dominion Statutory Causes of Action," 40 Canadian Patent ReporterVJ964 82 @ p. 84. Nanaimo Community Hotel Ltd. v. Board-of Referees, 1945 2 W.W.R. 145, 61 B.C.R. -354, 1945 C.T.C. 125, affirming 60 B.C.R. 558, 1944 C.T.C. 105- 1944 4 D.L.R. 638 (sub, horn. Re Nanaimo Community Hotel Ltd.) C.A. as to the' Federal government e s t a b l i s h i n g Federal Courts under s. 101, notwith- standing s. 129 and 2. 92. 213 Re Co n s t i t u t i o n a l Questions Determination Act: Re Supreme Court Act Amendment Act, 1964, (1964) 50 W.W.R. 193 (B.C.C.A.) appealallowedS.C.C. (1965) 51 W.W.R. 528. The Quotation i s at p. 533, R i t c h i e , J. 214 (1890) 2 B.C.R. 12, a decision of Drake, J . 215 A decision of Ladner, CC.J., May 12, 1975, Reported i n B.C. Decisions, C i v i l Cases, v. 2. (#18829, Vancouver Registry). 216 Supra n. 200, Kerwin, C.J.C., @ p. 566. 217 Loc. c i t . 34 Canadian Bar Review, p. 826; Clement, J . i n Watt v. Watt (1907) B.C.R. 281 (reversed J.CP. C. approving Martin, J. [1908] A.C. 573, i n Sheppard v. Sheppard who had set out how i t was-enacted i n B r i t i s h Columbia but based decision on 1857 English Act. P u t,: Whittaker, J. Teagle v. Teagle (1952) 6 W.W.R. (NS) 377; [1952] 3 D.L.R. 843 applied B r i t i s h Columbia and not English Act. B r i t i s h Columbia began amending Act a f t e r 1936, with some j u s t i f i c a t i o n , where pro- cedural. 2 1 8 Sheppard v. Sheppard (1908) 13 B.C.R. 487 @ 518-9. The Fisheries case: Attorney General f or the Dominion of Canada v. Attorneys-General f o r the Provinces of Ontario, Quebec and Nova Scotia (1898) A.C. 700. 219 An Act respecting the Revised Statutes of Canada. 49 V i c t , c. 4 (Canada), see Appendix A I (iii)» i n t r a p.'210. 110 224 226 148, 220 Appendix A IV, Re Bowater's Newfoundland Pulp and Paper M i l l s Ltd,, 1950 S.C.R. 608, 1950 4 D.L.R. 65. 221 (1893) 3 B.C.R. 30. Drake, J . (B.C.S.C.) The P r o v i n c i a l law i n question was 1 & 2 V i c t . c. 110 s. 17. The Federal enactment i s 49 V i c t . c. 44 (Can,). Discussed by Kennedy, supra (n. 162, p. 105), p. 422 "... the p r o v i n c i a l l e g i s - l a t i o n was v a l i d l y i n force i n the province before the Federal l e g i s l a t i o n was enacted." 221A 20 & 21 V i c t . c. 54 s. 12 (Imp.) 221B [1971] 4 W.W,R, 221C as •to £:the;Interpretation Act,<a_vg,Appendix A,pp.223-4. p.151. 221D _y_. Appendix A , l i i i , p. 210.' 221E [1976] W.W.D. 41.*** 222 Castles, supra (n. 24, p. 3) @ p i 30. . . . . 223 Regina v. De Banou 67 M.R. -541; 1969 2 D.L.R. (3d) 424; 1969 3 C.C.C. 157 (B.C.C.A.). The Herbalists Act 1542 i s 34 & 35 Hen. VIII c. 8. *** o221E Sask. law: Nykiforuk v. t ? ° Kohut [1949] 1 W.W.R. S i r Frederic R u s s e l l , "Rough Notes on C o l o n i a l Relations w reference to Mr. Torrens' Motion," 25 A p r i l , 1870, CO. 885/3, O'Connell & Riordan, op. c i t . , p. 5 @ 5-7. 225 D. B. Swinfen, Imperial Control of Co l o n i a l L e g i s l a t i o n 1813- 1865. Oxford: Clarendon Press, 1970 (Copyright Oxford University Press, 1970), p. 1-2. Ib i d . , p. 12: "This 'old and established form of expression' was considered to mean that counsel was to report whether the acts were such that the governor was authorized by his Com- mission and Instructions to pass them; whether, i n the terms of 7'& 8 Wm. I l l , c. 22, s. 9, they were repugnant to any law made i n the kingdom 'so far as such law may mention or r e f e r to the plantations'; and whether each act was so framed as to give ' f u l l and e n t i r e e f f e c t to the purposes with which the c o l o n i a l l e g i s l a t u r e may have passed i t . ' " Chalmers , George, ed., Opinions of Eminent Lawyers on various points of English Jurisprudence C h i e f l y concerning the Colonies.... Collected and Digested from the o r i g i n a l s i n the Board of Trade, and other Depositories. (London, Printed for Reed and Hunter 1814)(Republished Farnborough: Gregg Int e r n a t i o n a l , 1971). D. P. O'Connell and Ann Riordan, Opinions on Imperial C o n s t i t u t i o n a l Law. Melbourne, A u s t r a l i a : The Law Book Company, 1971, p. 1. I l l 228 (1839) s St. 2 R. (N.S.) 963 @ p. 982.. 229 Supra (n. 44, p. 95) A. B. Harvey, Q.C. (1954) 32 Canadian Bar Review 333. A consideration based on the divorce cases; and B r i t i s h Columbia cases are analyzed. 230 J . T. Woodroffe, A. P h i l l i p s , Opinion of the Advocate General and the Standing Counsel to the Government of India, 26 January, 1893, Canada (India) CO. Law O f f i c e r s ' Opinions Vol. 5, No. 28a, O'Connell arid Riordan, op. c i t . , p. 202 @204: "The o r i g i n and nature of--... t e r r i t o r i a l j u r i s d i c t i o n have been f u l l y discussed, not only by the p u b l i c i s t s , but, i n the Franconia case (the Queen v. Keyn, L.R. 2, Exchequer D i v i s i o n 63) by a l l the greatest aut h o r i t i e s amongst the English Judges. Cockburn, C J . thus expresses himself: ' I t i s true that from an early period the Kings of England, possessing more ships than t h e i r opposite neighbours, and being thence able to sweep the channel, asserted the r i g h t of sovereignty over the narrow seas ... A l l these vain and extravagant pretensions have long since given way to the influence of reason and common sense. I f , J i n d e e d , the sovereignty thus asserted had a r e a l existence and could now be main- tained, i t would be, of course, independently of any question as to the three-mile zone, conclusive of the present case. But the claim to such sovereignty, at a l l times unfounded, has long since been abandoned '" Ib i d . , p. 85, an 1855 Opinion i s quoted: "We conceive that the c o l o n i a l l e g i s l a t u r e cannot l e g a l l y exercise i t s j u r i s d i c t i o n beyond i t s t e r r i t o r i a l l i m i t s — t h r e e miles from the s h o r e — o r , at the utmost, can only do this over persons domiciled i n the colony who may offend against i t s ordinances even beyond those l i m i t s , but not over other persons." Today the question of the e x t r a t e r r i t o r i a l rule i s important, p a r t i c u l a r l y with respect to l i t i g a t i o n pending between B r i t i s h Columbia and Canada. 231 33 & 34 V i c t o r i a c. 90 (Imp.) 112 57 & 58 V i c t . c. 60 (Imp.). This Act i s specially-provided for i n the Statute of Westminster, supra (n. 44, p. 95). B r i t i s h North America Act, 1867, s. 132 (supra n. 11, p. 20). Co l o n i a l O f f i c e C i r c u l a r Despatch, Edward George Stanley (14th E a r l of Derby), 16 December 1842. O'Connell and Riordan. op. c i t . , p. 89 . [1920] A.C. 184, [1919] 3 W.W.R. 167, 48 D.L.R. 218, rev. '27 B.C.R. 194, 47 D.L.R. 487, which affirmed [1919] 1 W.W.R. 1Q68 considering the Workmen's Compensation Act, 1916, c. 77. (B.C.) [1934] 3 W.W.R. 84, 48 B.C.R. 481, 62 C.C.C. 286,- [1934] 4 D.L.R. 409, affirming [1934] 1 W.W.R.-491, (C.A.) considering the Deserted Wives' Maintenance Act, R.S.B.C. 1924 c. 67 Leave to appeal to the' Supreme Court refused. The Law O f f i c e r ' s opinions deal extensively with this point. Supra n. 1, p. 19. Op. c i t . at p. 117, (quoting Offshore opinion at p. 27-8). He concluded..p. 117 as did Mclntyre, J.A., at p. 124, "The presumption must be that the colonies did not extend beyond low water. Then i t i s a matter of ex- amining the wording to see whether the presumption i s displaced. I have already expressed the view that the terms used are not h e l p f u l to the province's argument and that view i s supported by the recent decision i n New South Wales v. A u s t r a l i a . » v.M A. MacRae, "Extra- "^^^^^^n^W^^o^ialat±aa>" ( 1 9 3 2 ) -5*1 Loc. c i t . Loc. c i t . , Seaton, J.A., at p. 113-4, Settlement has been offered to the Eastern Maritime Provinces, except Newfoundland which was represented i n th i s case. v_. supra n. 126 (at p. 113-4). 113 2 4 4 Attorney General f o r Canada v. Attorneys General f o r Ontario, Quebec and Nova Scotia (1898) A.C. 700 ' on appeal from 26 S.C.R. 444. 245 246 St. Catherine's (Catharine's) M i l l i n g & Lbr. Co. v. R., (1888) 14 App. Cas. 46-,- 4 Cart. 1Q7, affirming 13 S.C.R. 577, which affirmed 13 O.A.R. 148, which affirmed 10 O.R. 196. S i m i l a r l y Ontario Mining Company v. Seybold, 1903 A.C. 73, affirming 31 O.R. 386. (1809) , 6 Cranch, 22, approved Sheppard case, Martin, J . supra (n. 196, p. ), @ p. 525. 247 Sheppard v. Sheppard (1908) 13 B.C.R. 487 @ 493. 248 Mark R. MacGuigan, op. c i t . , p. 665. The quotation i s from Edward H. L e v i , An Introduction to Legal Reasoning (1961) p. 3. 249 Jamieson v. T y t l e r [1935] 4 D.L.R. 706, a f t e r finding no j u r i s d i c t i o n to entertain Matrimonial appeals and r a i s i n g the question as to the soundness of the decision i n Scott v. Scott (1891) 4 B.C.R. 316, s a i d "... but i t has been given e f f e c t to f o r so long that, i n our opinion, we should not disturb i t t i l l our adoption of i t has 1been declared erroneous by a higher t r i b u n a l , or t i l l apt l e g i s l a t i o n has been passed making i t our duty to do so Clement, op. c i t . (n. 119, p. 101) 2nd ed., p. 51 as to acquescence and cases referred to Doe A. Anderson v. Todd. Mr. J u s t i c e Patterson, " I t has been acquiesced i n too long and has for too long a period governed t i t l e s to land i n this province to be now i n t e r f e r e d with by any authority short of l e g i s l a t i v e enactment ...." 250 Supra n. 198 cf. H a l l i b u r t o n , C. J . Uniacke case supra (n. 73, p. 98) loc . c i t . 251 v. In f r a Schedule A I. 252 Supra n. 198. • 114 Robinson, C. J . , Shea v. Choat, (1845) 2 U.C.Q.B. 211. B.C.: Frey v. Fedoruk [1949] 2 W.W.R. 604 (S.C.C.) Cart-wright, J - - i f any course of conduct i s now to be declared criminal, not up to the present so regarded, i t should be so declared by parliament and not by the Courts. 115 Part I I I - Statute Law Revision and ' L e g i s l a t i v e Reform V. IMPERIAL STATUTE LAW REVISION AND REFORM 1. H i s t o r i c a l (a) The need for reform The reception statutes r e l a t e p r i m a r i l y to the Law of England before any modernization took place. For B r i t i s h Columbia, the l e g i s l a t i o n to be considered f o r a p p l i c a b i l i t y spanned over s i x hundred years from 1225 to 1858 (the Statutes of the Parliament of England and Great B r i t a i n from the Third Year of King Edward the Second to the Twenty-second Year of Queen V i c t o r i a ) . I t was to be found i n ninety-eight volumes of the Statutes which were r a r e l y a v a i l a b l e i n the Colonies. Begbie, C. J . recognized the problem of a c c e s s i b i l i t y when he sa i d : "An Englishman going to found a Colony may be supposed to carry the Statutes ( i n the form of Chitty) i n his hands 1 2 Chitty's C o l l e c t i o n of Statutes with Notes thereon, containing " A l l the Statutes of P r a c t i c a l U t i l i t y i n the C i v i l and Criminal Administration of J u s t i c e to the present time" was f i r s t published i n 1829 by Joseph Chitty. Later editions were published by E d i t o r s , the Second i n 1853 and the Third i n 1865 being r e l a t i v e l y close to the reception date of 1858 fixed f o r B r i t i s h Columbia. Unless such a c o l l e c t i o n was used, i t was necessary to consult the Statutes of the Realm to research Acts of Parliament. In addition to this huge volume of l e g i s l a t i v e enactment, there were also Orders-in-Council 116 material to the Law of England to be considered. The a v a i l a b i l i t y and c e r t a i n t y of the Law of England was a problem i n England as w e l l as i n the colonies. (b) The impetus for reform In 1542 the I r i s h Parliament petitioned the King to 3 p r i n t a c o l l e c t i o n of I r i s h statutes. In England,.in 1549, the House of Commons proposed to 4 King Edward VI that the laws should be c o d i f i e d . In 1551, the King, when only a boy of fourteen, i n h i s Discourse ort the Reform- atio n of Abuses, proposed:, presumably as advised by his Law O f f i c e r s , "I have shewed my opinion heretofore what statutes I think most necessary to be enacted this session. Nevertheless, I would wish that beside them here- a f t e r , when time s h a l l serve, the superfluous and tedious statutes were brought i n t o one sum together, and made more p l a i n and short, to the intent that men might better understand them; which thing s h a l l much help to advance the p r o f i t of the commonwealth." 5 S i r Nicholas Bacon, Lord Keeper, i n the r e i g n of Elizabeth I proposed reducing, ordering and p r i n t i n g the statutes of the realm, i n terms which have been described as the f i r s t " c o d i f i c a t - i on movement" , as follows: " F i r s t , where many lawes be made for one thing, the same are to be reduced and established i n t o one lawe, and the former to be abrogated. Item, where there i s but one lawe for one thing, that these are to remain i n case as they be. Item, that a l l the Acts be digested into t i t l e s and printed according to the abridgement of the statutes. Item, where one part of the Acte standeth i n force and another part abrogated, there s h a l l be no more printed, but that that standeth i n force." 6 117 James I was sympathetic to reform, and i n a speech delivered i n 1607, he expressed the desire that "... by parliament our lawes might be cleared and made knowen to a l l the subiects ...." In 1609, he ref e r r e d to the matter of "divers crosse and cutting statutes, and some so penned that they may be taken i n divers, yea, contrary sences . ..."^ S i r Francis Bacon, then the Attorney General, submitted a proposal for the digest or recompiling of the common law g and reforming and recompiling of statute law. The reform contemplated was to be of great scope, p a r t i c u l a r l y as to statute law. A manuscript exists i n the B r i t i s h Museum a t t r i b u t e d to the Commission that was 9 appointed i n 1610. Further committees were appointed i n the time of the Commonwealth and many great names i n l e g a l reform were involved including S i r Matthew Hale and Ashley Cooper, Lord Shaftesbury. "^ (c) Statute law reform Although there has never been an o f f i c i a l l e g i s l a t i v e r e v i s i o n of statutes i n England, s u b s t a n t i a l e f f o r t s have been made from time to time to abridge the statute books and to make l e g i s l a t i o n more re a d i l y accessible. These e f f o r t s had a bearing on the a v a i l a b i l - i t y of statutory materials i n the colonies and also on developing a methodology of reform. The statutes c i r c u l a t e d o r i g i n a l l y i n manuscript form, but a f t e r the invention of the p r i n t i n g press many c o l l e c t i o n s of statutes were published, commencing i n 1485."'""'" In 1796, two reports of Committees of the House of Commons 118 c a l l e d attention again to the need f o r r e y i s i o n sand Parliament,four years later^appointed the F i r s t Commission of Public Records under 12 - whose- authority The Statutes of the Realm were published.. It i s the a u t h o r i t a t i v e e d i t i o n of the English statutes to the end of the Reign of Queen Anne, in c l u d i n g every law "as w e l l those- repealed or expired as those now i n force". This Commission distinguished for the f i r s t time between pu b l i c general Acts, l o c a l and personal Acts, and p r i v a t e Acts."'"3 14. " Ruffhead's E d i t i o n , '. a private e d i t i o n of the Statutes, extended from Magna Carta (which appears i n Ruffhead as 9 Henry III and i n the Statutes of the Realm as 25 Edward I) and i n i t i a l l y con- s i s t e d of 18 volumes to 1800. T h i r t y more volumes were added by various e d i t o r s , taking the e d i t i o n up to 1869. Ruffhead shared the view of the Commissioners of Public Records that a l l statutes should be printed and not merely those i n force. The e d i t i o n by the Record Commissioners, known as the Statutes of the Realm (to the end of the Reign of Queen Anne) and the Ruffhead E d i t i o n by Serjeant Runnington (to the end of the session of 25 George III) are the basis for the f i r s t r e v i s i o n of 15 statute law. There i s one period not included i n the Statutes of the 16 Realm, the period of the Interregnum, from 1640 to 1660. L e g i s l a t o r s , unlike judges,have not been required to f i t l e g i s l a t i o n within the e x i s t i n g framework ; '>." -jhe King sand l a t e r Parliament continued to pass Acts and repeal others without s u b s t a n t i a l consolidation or r e v i s i o n . P r o l i x i t y and fragmentation 119 of law were the r e s u l t , and reform was a complex matter. 2. Methods of Statute Law Reform (i) REVISION The Statute Law Committee was appointed i n 1865"^ to supervise the production of the Statutes Revised. Revision e n t a i l s examination of the Statute R o l l , e d i t i n g i t i n revised form, and omitting repealed statutes. Three editions of the Statutes Revised have been published with the authority of t h i s Committee.!;and i t s successors; 1. the f i r s t , to the end of 1878, consists of eighteen volumes, replacing the' 118 volumes then i n force, and was published between 1870 and 1873 and completed i n 1885; 18 2. the. second, to the end of 1886, consists of sixteen volumes and was published between 1888 and 1900. Eight more volumes were added i n 1909 and 1928, bringing the work up to the year 1920. 19 3. the t h i r d , published i n 1950, substituted 32 volumes for the statutes from 1235 to 1948. With index, the set comprises 35 volumes. 20 These revisions increased a s s e s s i b i l i t y to " l i v i n g " law, but are of l i m i t e d value to h i s t o r i a n s or those attempting to ascertain the law at a fixed date p r i o r to the r e v i s i o n . ( i i ) INDEXING In conjunction with the 1865 r e v i s i o n of the statutes, the Queen's P r i n t e r published i n 1870 a Chronological Table and 21 Index to the Statutes i n Force. P r i o r to this p u b l i c a t i o n , i t was v i r t u a l l y impossible to ascertain which statutes were i n force i n England i n any given year. The Chronological Table and Index of 120 22 Statutes i s s t i l l published today, i t s form c o n s i s t i n g of two p a r t s : 1. a C h r o n o l o g i c a l Table l i s t i n g both the s u b j e c t matter and the present s t a t u s of a l l the s t a t u t e s , showing t o t a l or p a r t i a l repeals thereof; and 2. an a l p h a b e t i c a l Index to the contents of the s t a t u t e books, arranged by s u b j e c t . From the Table and Index i t would be p o s s i b l e to d e t e r - mine the s t a t u t e law i n f o r c e i n England i n any p a r t i c u l a r year, subject to c o n s i d e r i n g O r d e r s - i n - C o u n c i l a f f e c t i n g the s t a t u t e law. This Table has an a d d i t i o n a l v a l u e , i n enabling one to assess the v a l i d i t y of work i n another j u r i s d i c t i o n f o r B r i t i s h Columbia. For example, a glance at the present s t a t u s column i n the C h r o n o l o g i c a l Table i n d i c a t e s that the work of the A l b e r t a 23 I n s t i t u t e of Law Research and Reform r e l a t i v e to an 1870 r e c e p t - . i o n date i s not e n t i r e l y v a l i d i n B r i t i s h Columbia as to s t a t u t e s i n f o r c e . Much work was done i n the 1860's i n expurgation, as a p a r t of the 1865 r e v i s i o n , and A l b e r t a has the b e n e f i t of t h i s expurgation. ( i i i ) EXPURGATION In 1856 the I m p e r i a l Parliament began d e l e t i o n from the S t a t u t e Books of s t a t u t e s which were not i n use. More than one 2 A hundred were e l i m i n a t e d i n the 1856 " s l e e p i n g s t a t u t e s " Act. How- ever, more than t h i r t y Statute R e v i s i o n Acts were passed between 1861 and 1898. The S t a t u t e Law R e v i s i o n A c t , 1 8 6 3 2 5 which became th e prototype of subsequent l e g i s l a t i o n , was introduced by Lord Westbury i n a speech which explained the p r i n c i p l e s of the Act and l a i d out the 121 rules to be followed by draftsmen to c l e a r the statute book of superfluous and unnecessary matter. The Act's preamble i s very wide: "whereas, with a view to the Revision of the Statute Law and p a r t i c u l a r l y to the Preparation of a revised E d i t i o n of the Statutes, i t i s expedient that c e r t a i n Enactments (mentioned i n the Schedule to this Act) which have ceased to be i n force otherwise than by express and s p e c i f i c Repeal, or have, by Lapse of Time and Change of Circumstances, become unnecessary, should be expressly and s p e c i f i c a l l y repealed:" Its ambit i s l i m i t e d to England by Section 2, and i n other respects by the wide protections r e s t r i c t i n g repeal by Section 1, as follows: "1. The enactments described i n the Schedule to this Act are hereby repealed, subject to the Exceptions i n the Schedule mentioned: Provided, that where any Enactment not comprised i n the Schedule has been confirmed, revived, or perpet- uated by any Enactment hereby repealed, such Confirm- at i o n , Revivor, or Perpetuation s h a l l not be affected by such Repeal; and the Repeal by this Act of any Enactment s h a l l not a f f e c t any Act i n which such Enactment has been applied, incorporated, or referred to; and this Act s h a l l not a f f e c t the V a l i d i t y or I n v a l i d i t y of anything already done or s u f f e r e d , — o r any Right or T i t l e already acquired or accrued, or any Remedy or Pro- ceeding i n respect t h e r e o f , — o r the Proof of any past Act or Thing; nor s h a l l this Act a f f e c t any P r i n c i p l e or Rule of Law or Equity, or established J u r i s d i c t i o n , Form or Course of Pleading, P r a c t i c e , or Procedure, or e x i s t i n g Usage, Franchise, L i b e r t y , Custom, P r i v i l e g e , R e s t r i c t i o n , Exempt- ion, O f f i c e , or Appointment, notwithstanding that the same respe c t i v e l y may have been i n any Manner affirmed, recogniz- ed, or derived by, i n , or from any Enactment hereby repealed; nor s h a l l t h i s Act revive or restore any J u r i s d i c t i o n , O f f i c e , Duty, Franchise, L i b e r t y , Custom, P r i v i l e g e , R e s t r i c t i o n , Exemption, Usage, or P r a c t i c e , not now e x i s t i n g or i n force." 26 122 Although a huge expurgation took place, no attempt was made to remove "any l i v i n g enactment". The philosophy of the wide ambit of the saving clause was formulated i n an 1891 Parliamentary Memorandum, as follows: "Although the Statute Law Revision Acts i n form s p e c i f i c a l l y repeal enactments, t h e i r p r i n c i p l e i s merely to authorize the omission from an authorized statute-book of enactments already dead. And this i s also t h e i r l e g a l e f f e c t , f o r not only have great pains been taken to leave untouched a l l enactments as to the present operation of which there was any reasonable doubt but each Act contains a saving clause of a very wide character. The terms of t h i s clause ... are so wide that, even i f a mistake were made of including i n a Statute Law Re- v i s i o n Act any l i v i n g enactment, the operation of the saving clause i n the Act would continue the e f f e c t of that enactment as a p r i n c i p l e to be recognized by the Courts of Law. I t may be s a i d that, i f this i s the operation, the Statute Law Revision Act i s useless as i t does not get r i d of the law. But th i s i s not so; the saving clause i s merely a precaution against a mistake ... . The statute law i s thus made more i n t e l l i g i b l e i n form and i s reduced to a more moderate compass without producing any r e a l change i n the law." 27 B r i t i s h Columbia does not ben e f i t from these Acts d i r e c t l y . How- ever, the immediate c l a s s i f i c a t i o n as "sleeping" of a statute i n force i n 1858 should have great weight i f a s i m i l a r e f f o r t were made i n this j u r i s d i c t i o n . (iv) CONSOLIDATION This i s not merely a mechanical process but involves r e c o n c i l i n g differences of language o b s c u r i t i e s and inconsistencies of d i f f e r e n t periods, i n statutes spanning seven centuries. The process i s laborious. The consolidator must consider both adaptat- 123 i o n to modern conditions and the e f f e c t s produced on the o p e r a t i o n of a s t a t u t e by changes i n the r u l e s of s u b s t a n t i v e law, r u l e s of procedure or of s o c i a l c o n d i t i o n s . The c o n s o l i d a t o r deals only w i t h l e g i s l a t i o n but considers the i n t e r p r e t a t i o n by j u d i c i a l d e c i s i o n "the work of c o n s o l i d a t i o n r e q u i r e s i n t i m a t e acquaintance w i t h past as w e l l as w i t h e x i s t i n g laws and i n s t i t u t i o n s ; i n v o l v e s the r e w r i t i n g , and not merely the p l a c i n g together of laws; the s u b s t i t u t i o n of modern f o r antiquated language and machinery, the harmonizing of i n c o n s i s t e n t enactments, and yet the performance of t h i s work i n such a way as to e f f e c t the minimum of change i n expressions which have been made the subject of j u d i c i a l d e c i s i o n s and on which a long course of p r a c t i c e has been based." 28 (v) CODIFICATION C o d i f i c a t i o n has had l i m i t e d success i n England, a s s o c i a t e d w i t h the names of S i r Mackenzie Chalmers and S i r F r e d e r i c k P o l l o c k 29 i n matters of a commercial nature. The f o l l o w i n g s t a t u t e s were the r e s u l t : B i l l s of Exchange A c t , 1882; P a r t n e r s h i p Act, 1890; Sale of Goods Act , 1893; and ^ Company Law C o n s o l i d a t i o n A c t , 1908. C o d i f i c a t i o n i s the process of c o l l e c t i n g and arranging i n systematic form the whole of the law.' as to a given s u b j e c t , whether found i n s t a t u t e s or i n case law. 31 The movement f o r c o d i f i c a t i o n was l e d by Jeremy Bentham who attacked the confusion of the s t a t u t e books and advocated reform by way of c o d i f i c a t i o n . He succeeded i n i n f l u e n c i n g the development of the C o n t i n e n t a l codes, having p a r t i c u l a r i n f l u e n c e w i t h respect to 124 the French Penal Code and the Russian C o d i f i c a t i o n movement. He had l i t t l e success i n England. I t has been said that f o r c o d i f i c a t i o n to be s u c c e s s f u l , two elements must be found: an enlightened sovereign, unhampered by the past; and a country powerful enough to exercise inescapable i n - 32 fluence over others and spread the Code's influence. Both elements were found i n France a f t e r the Revolution and are found i n modern A f r i c a n nations. This p o l i t i c a l climate was not to be found i n England where a deeply-rooted system of developing law had continued since the thirteenth century, combined with a r e l a t i v e l y stable monarchy. The c o d i f i c a t i o n movement has had some success i n colonies for s p e c i a l reasons which w i l l be noted i n Chapter VI. Bentham's d i s c i p l e s again r a i s e d the matter i n the l i b e r a l 33 climate of 1832 which produced the Reform Act. The then Lord Chancellor, Lord Brougham, appointed a Commission with i n s t r u c t i o n s : "(1) To digest i n t o one statute a l l the statutes and enactments touching crimes and the t r i a l and punish- ment thereof, and also to digest into one another statute a l l the provisions of the common or un- written law touching the same; (2) To inquire and report how f a r i t might be exped- ient to combine those statutes i n t o one body of the criminal law; and (3) Generally to i n q u i r e and report how f a r i t might be expedient to consolidate the other branches of the law of England." 34 This Commission made seven reports and eventually dissolved i n 1845. I t was succeeded by another that also made seven reports, the l a s t published i n 1849. A Criminal Law B i l l was twice presented to the 125 House by Lord Brougham who made the following plea on behalf of c o d i f i c a t i o n : "In England more than any other s t a t e , more even than i n Rome, when J u s t i n i a n began his labours at a time when the c i v i l law was sa i d to be a burden for many camels, t h i s process (of digesting the law) has become absolutely necessary, because our law, whether made by parliament, or e x i s t i n g i n t r a d i t i o n , or declared by the judges, has attained an unprecedented bulk. The reports of cases i n the courts f i l l 500 volumes, the statutes nearly 40, o;fv between t h i r t y and f o r t y quarto pages — while Napoleon's whole codes, f i v e i n number, crept i n t o 750 duodecimo pages. Well might he boast that he should descend to future times with h i s code i n his hand.'" 35 Inconceivable as i t now appears, i t was not u n t i l 1853 that the Judges were consulted with respect to the proposed digest of Criminal Law, which by then had taken the form of two B i l l s . Twenty years of work and great expense were to be f r u i t l e s s , with the Judges finding no uncertainty i n the law as i t was, nor need for such d r a s t i c 36 measures. In 1877, S i r James Fitzjames Stephen returned to England 37 having completed his Digest of Criminal Law for India. He was asked to draft a Criminal Code and a portion of t h i s d r a f t was i n t r o - duced i n the Commons i n 1878 as the Criminal Code (Indictable Offences) B i l l . I t met with an argument about abandoning l e g i s l a t i v e power: "To request the House to adopt the proposed changes i n the c r i m i n a l code on the f a i t h of three or four gentlemen, however eminent they might be, was, equivalent to asking the House to abandon i t s p o s i t i o n as representing and l e g i s l a t i n g for the country." 38 This argument succeeded i n d e f l e c t i n g the B i l l and generally bringing 126 the c o d i f i c a t i o n movement r e l a t i n g to the c r i m i n a l law to a h a l t . 3. The Law Commission Act, 1965 Statute reform continues today with progress being made i n expurgation and indexing. The Statute Law Committee continues to function and has adopted the modern p r a c t i c e of r e f e r r i n g a l l consol- i d a t i o n B i l l s to a Jo i n t Select Committee set up by both Houses; Minor amendments, corrections and improvements are now f a c i l i t a t e d by 39 the Enactments (Procedure) Act, 1949. The continuing work i s now stimulated by the Law Commission appointed pursuant to an enabling 40 Act passed i n 1965. The F i r s t Report of that Commission formulates the modern need of English Law i n these words, "English Law, i n i t s h i s t o r y and substance, exhibits a great respect f or both the concept and the a p p l i c a t i o n of the r u l e of law. I f our law i s to survive as one of the great l e g a l systems of the world, i t i s necessary that a proper balance be struck between that concept and the administrative techniques of a hig h l y developed i n d u s t r i a l s o c i e t y . " 41 The F i r s t Programme included p r o v i s i o n f o r resolving anomolies, obsolescent p r i n c i p l e s or archaic procedures; the modernization of the law of Northern Ireland; and the consideration of statutory i n t e r p r e t a t i o n . Its Tenth Report^for the period 1974 - 1975, records the work of the Commission i n the repeal of obsolescent Acts and i t s work with the Jo i n t Committee on B i l l s , but reports that the present pace of the consolidation programme does not keep abreast 42 of the impact of new l e g i s l a t i o n on the Statute Book. 12 7 4. "Forgotten amendments" to the Canadian Constitution I t would be expected that i n Canada the methods of Imperial statute law reform would be i n s t r u c t i v e , and that i f such reform were undertaken the "sleeping stat u t e " c l a s s i f i c a t i o n would be r e f l e c t e d i n our own l e g i s l a t i o n . One e f f e c t of the Statute Law Reform Acts of 1893, 1898, and 1927 was to amend the Canadian con- s t i t u t i o n by deleting provisions of The B r i t i s h North America Act, 1867. 4 3 Gerin-Lajoie i n h i s study C o n s t i t u t i o n a l Amendment i n 44 Canada, records that these amendments were made i t seems without Canadian knowledge and were overlooked u n t i l an A r t i c l e on the subject 45 was published i n 1942 by Scott. The safeguards of the Statute Law Reform Acts operate to prevent error as a r e s u l t of such amendment, but the very existence of these, apparently unpublished and unnoticed i n Ottawa, i s another reason for resolving and de f i n i n g Imperial statute law i n Canada. 128 VI. THE REFORM OF PROVISIONS FOR RECEPTION OF ENGLISH STATUTES BY LOCAL LEGISLATION Ascertaining which English statutes are received has always been a problem f o r lawyers i n the various j u r i s d i c t i o n s where English Law has been introduced. A determination of applicable English statutes i s complicated by the further necessity of considering the law i n force i n the p a r t i c u l a r j u r i s d i c t i o n at the reception date and subsequent l e g i s l a t i v e enactments. Even when these matters have been determined, the Courts may declare a p a r t i c u l a r statute i s not i n force due to l o c a l circumstances. Reform begins with a determination of which English statutes may be i n force. Several j u r i s d i c t i o n s have effected reform i n this way, combined i n some cases with a repeal of other English statutes. Complete repeal of a l l statutes save those provided i n the reform statute, has been undertaken i n V i c t o r i a , A u s t r a l i a on a most 46 comprehensive bas i s . Similar reform has been undertaken i n the 47 48 49 Bahamas, Western N i g e r i a , and G i b r a l t a r , and i n the following American States: North Carolina, Michigan, V i r g i n i a , New York, New 5 0 51 Jersey, Vermont, M i s s i s s i p p i , Tennessee, and South Carolina. Ontario has consolidated the statutes r e l a t i n g to property and c i v i l rights and made a l i s t i n g of proprio vigore l e g i s l a t i o n . In s t i l l other j u r i s d i c t i o n s , p a r t i a l reform has been effected with some Imperial statutes being repealed, and others incorporated i n t o l o c a l l e g i s - l a t i o n . The effectiveness depends on the decisiveness of the reform l e g i s l a t i o n . B r i t i s h Columbia i s such a j u r i s d i c t i o n . 129 1. Incomplete reform: consolidation and l i s t i n g (a) B r i t i s h Columbia B r i t i s h Columbia i s one of seven j u r i s d i c t i o n s i n Canada' that have a reception statute of general a p p l i c a t i o n . The h i s t o r y of the Province as i t i s today i s somewhat complex, and has been prev- 53 i o u s l y r eferred to. In 1896, i n connection with the r e v i s i o n and consolidation of the Laws of B r i t i s h Columbia, Theodore Davie was appointed a Com- missioner to revise and consolidate a new e d i t i o n of the Laws of B r i t i s h Columbia and of "the Statute Law of England i n force and task i s explained as, by im p l i c a t i o n , i s the i m p o s s i b i l i t y of i t s completion, i n his F i r s t Report, made i n 1896, " When i t was decided by the Le g i s l a t u r e to enter upon this r e v i s i o n , i t was believed that a s i m i l a r work sa i d to have been c a r r i e d i n t o execution i n the Colony of New Zealand would afford a precedent, and much f a c i l i t a t e the labours of the Commission, but i t appears that no such r e v i s i o n has been c a r r i e d out there. The "Revision of Statutes Act, 1879" (N.Z.) directed that the Commissioners appointed under that Statute should include i n a new e d i t i o n of Statutes "such enactments of the Imperial "Parliament i n force i n th i s Colony as, from t h e i r general i n t e r e s t and importance, the "Com- missioners may think i t desirable should be so included." The New Zealand Commissioners therefore c o l l e c t e d , with- out r e v i s i o n or change, c e r t a i n Imperial Statutes, occupying a book of about f i v e hundred pages." This Report indicated that the English Statutes would be dealt with i n two ways: (1) "... The enactment of law by mere reference to Statutes of the Imperial Parliament or otherwise has been complete- l y discarded. In those cases where the law Is now given by reference only to Imperial Statutes, the Statute or applicable to this Province". 54 The undertaking of this herculean 130 law, so formerly referred to, i t s e l f has been reproduced, with necessary v a r i a t i o n s (2) "... Some Imperial laws have been introduced with- out change, amongst which may be mentioned "Magna Cha-rta" and the "Companies Acts," the l a t t e r of which have been so introduced as preliminary to r e v i s i o n . " 55 (i) R.S.B.C. 1911 The Revised Statutes of the Province continued the work i n respect of the Imperial Statutes. A Table of Imperial Acts 56 Consolidated was published i n Volume IV, a further Volume of the 1911 Statutes published i n 1913, which consisted of two Parts: Part I, being "A c o l l e c t i o n of some English Statutes not consolidated with the "Revised Statutes of B r i t i s h Columbia, 1911," u s e f u l for reference and arranged c h r o n o l o g i c a l l y , and of ce r t a i n Orders i n Council and Proclamations." The following explanation i s given with respect to the l i s t : "Some of these Statutes were published i n an Appendix to the Revision of 1871. Others were published i n the preliminary part of the r e v i s i o n of 189 7. Others have been added by the Commissioners. This compilation does not purport to be an exhaustive- c o l l e c t i o n of English Acts that may be applicable i n the Province of B r i t i s h Columbia. The i n s e r t i o n of any Act or part of any Act i n this compilation, or the omission therefrom of Acts or parts of Acts, must not be taken as an expression of opinion on the part of the Commissioners with respect to the a p p l i c a b i l i t y of those inserted, or the i n a p p l i c a b i l i t y of the great number of Acts omitted. The j u d i c i a l tribunals of the country can alone determine these questions." 57 This explanation renders i t of l i t t l e value, other than as a r e f e r - ence l i s t as at 1913, and unfortunately, the explanation deprives i t of any value as a complete reference l i s t . 131 The 1911 Revision also dealt with C o l o n i a l and P r o v i n c i a l law. Part II of Volume IV i s described as "Consisting of a l i s t of Ordinances and Acts passed by the C o l o n i a l and P r o v i n c i a l Legislatures not repealed and not included i n the Revised Statutes, some of which Ordinances and Acts, being of a quasi- p u b l i c character, are printed i n f u l l ; the t i t l e s of the others with the date of t h e i r passing only being given." The following protection i s included with respect to Part I I : "Some of these Ordinances and Acts are possibly obsolete, others perhaps i n d i r e c t l y repealed, others again expired by e f f l u x i o n of time. In the opinion of the Commissioners the Courts or the L e g i s l a t u r e are the proper a u t h o r i t i e s to make any de c l a r a t i o n on the subject." 58 ing? What then i s the e f f e c t of the consolidation and l i s t - (1) the Imperial statutes incorporated i n the B r i t i s h Columbia enactments, l i s t e d i n the "Table of Imperial Enactments consolidated with the Revised Statutes, 1911" become law i n B r i t i s h Columbia, i f they were not previously. 59 A g§afmilar l i s t was published i n 1897. (2) The c o l l e c t i o n of.English statutes not consolidated, being Part I of Volume IV, i s neither complete nor au t h o r i t a t i v e . "The j u d i c i a l tribunals of the country alone can determine these questions. (3) The l i s t of Co l o n i a l and P r o v i n c i a l Ordinances and Acts i s a handy reference l i s t , but the provisions appended to the l i s t deprives i t of authority f o r any proposition except that those Ordinances and 132 Acts l i s t e d had not been repealed i n 1913.WJ" ( i i ) Subsequent reform Further reform was made i n the Obsolete Statutes Repeal Act, 1922, and i n the various changes i n wording to the English 6 3 Law Act which have been made at the time of various statute r e v i s - ions., presumably, under the umbrella authority of modernizing language. ( i i i ) Law Reform Commission The Law Reform Commission of B r i t i s h Columbia was established by the Law Reform Commission Act i n 1969 and began 64 , functioning i n 1970. The fourth general topic of the Commission s o r i g i n a l programme was the a p p l i c a b i l i t y of pre-!'.'1.85!8English statute law i n B r i t i s h Columbia. A "Perspective" published i n 1976 by the former D i r e c t o r of Research to the Commission comments with respect to this portion of the programme: "This has always been a project conducted by a member of the Commission's f u l l - t i m e s t a f f , and although circumstances' have never permitted i t to be accorded an urgent p r i o r i t y , work proceeds when time allows...." 65 (b) Ontario Like B r i t i s h Columbia, Ontario has made statutory p r o v i s i o n to supplement the rather complicated l e g i s l a t i v e h i s t o r y 66 of the Province. The present p r o v i s i o n f o r English Law i s found i n The Property and C i v i l Rights Act, 6^and i s i n these terms, "In a l l matters of controversy, r e l a t i v e to property and c i v i l r i g h t s , resort s h a l l be had to the laws of England as they stood on the 15th 133 day of October, 1792 u This provision succeeds a 1792 Statute which established English Law, i n the following terms: from the a f t e r the passing of th i s Act, i n a l l matters of controversy r e l a t i v e to property and c i v i l r i g h t s , resort s h a l l be had to the Laws of England as the r u l e f o r the decision of the same. Provided always, and be i t Enacted by the Authority aforesaid, That nothing i n t h i s Act contained, s h a l l vary, or i n t e r f e r e , or be construed to vary or i n t e r f e r e with any of the s u b s i s t i n g provisions respecting e c c l e s i a s t i c a l r i g h t s and dues w i t h i n t h i s Province or with the forms of proceedings i n c i v i l actions, or the j u r i s - d i c t i o n of the Courts already established, or to introduce any of the Laws of England respecting the maintena nce°f the poor, or respecting bankrupts," 68 Various other Statutes made pr o v i s i o n with respect to equity, chancery and surrogate matters. The complicated s i t u a t i o n i s sum- marized i n the Preamble to the 1902 Statute authorizing the Imperial Statutes r e l a t i n g to property and c i v i l rights to be incorporated into the Statute Law of Ontario: "WHEREAS under and by v i r t u e of divers Acts of the Pro- vinces of Upper Canada, Canada, and of th i s Province, cer- t a i n Imperial Statutes became part of, and were incorporated i n t o , the Statute Law of th i s Province so f a r as the same were applicable to the circumstances thereof; and whereas, since the incorporation of such Statutes some of the same have become obsolete, or have i n e f f e c t been superseded by subsequent l e g i s l a t i o n ; and some of the s a i d Statutes were enacted i n L a t i n , or Norman French, or i n language which has become antiquated and obscure; and whereas i t i s desirable that a l l such Imperial Statutes as r e l a t e to property and c i v i l r i g h t s should be revised, c l a s s i f i e d , and consolidated, as part of the Revised Statutes of Ontario; and whereas such r e v i s i o n , c l a s s i f i c a t i o n , and consolidation have been made accordingly; and whereas i t i s expedient to include In such consol i d a t i o n c e r t a i n statutes of the present session passed i n s u b s t i t u t i o n , or amendment, of c e r t a i n of the s a i d Imperial Statutes: - " 134 On, from and a f t e r such day the same s h a l l accordingly come in t o force and e f f e c t as law by the designation of "The Revised Statutes of Ontario, 189 7, Volume I I I , " to a l l intents as though the same were expressly embodied i n and enacted by th i s Act to come in t o force and have e f f e c t on-, from and a f t e r such day, and on, from and a f t e r such day a l l the enactments i n the sa i d several Acts and parts of Acts i n Schedule A to the said R o l l mentioned as repealed s h a l l stand and be repealed save only as he r e i n a f t e r i s provided."." 69 Several sections follow Section 6 making the usual provisions and protections i n respect of statute consolidation and r e v i s i o n and providing that the s a i d volume s h a l l not a f f e c t l e g i s l a t i o n already i n force i n the Province. (i) 1902 Revision By Proclamation, the Revised Statutes of Ontario, 189 7, Volume I I I , was proclaimed as having the force of law from and a f t e r 2 June, 1902, and provided a s o l u t i o n to the problem which had been described i n the Preamble of the 1902 S t a t u t e , ^ except as to proprio vigore l e g i s l a t i o n and l e g i s l a t i o n within the competency of the Federal government. Afte r the Revision, the law of Ontario included those Imperial enactments l i s t e d i n Schedule A which were enacted as Ontario 71 statutes, numbered as l i s t e d i n Schedule B. Those statutes l i s t e d i n Schedule C continued to have the same force as they had p r i o r to the Revision. The Volume was i n two parts but the statutes are dealt with i n three d i f f e r e n t ways: (a) Statutes of the Province of Ontario, Chapters 322 to 342 i n c l u s i v e were published, being the proposed r e v i s i o n and 135 c o n s o l i d a t i o n of a l l I m p e r i a l Statutes, r e l a t i n g to property and c i v i l r i g h t s which were incorporated i n t o the law of Ontario by v i r t u e of p r o v i n c i a l l e g i s l a t i o n . These were as f o l l o w s : S e c t i o n X V I I I . CONSTITUTIONAL RIGHTS AND LIBERTIES OF THE PEOPLE. c. 322 An Act r e s p e c t i n g c e r t a i n r i g h t s and l i b e r t i e s of the people 323 An Act concerning Monopolies, and d i s p e n s a t i o n w i t h penal laws, e t c . S e c t i o n XIX. ADMINISTRATION OF JUSTICE (2). 1. PROCEDURE IN CIVIL MATTERS. 324 A d m i n i s t r a t i o n of J u s t i c e 2. ADMINISTRATION OF JUSTICE IN CRIMINAL MATTERS. 325 J u s t i c e s of the Peace, power of, t o administer oaths 326 Constables, actions against S e c t i o n XX. MISCELLANEOUS OFFENCES 327 Champerty 328 Buying and s e l l i n g o f f i c e s 329 Excessive gaming Se c t i o n XXI. LAW OF PROPERTY C2). 330 Real Property 331 Uses and Trusts 332 Accumulation of P r o f i t s or produce of Real or Personal e s t a t e s . (Commonly c a l l e d "The Thellusson Act".) 333 Mortmain, and the d i s p o s i t i o n of land f o r c h a r i t a b l e us 334 Fraudulent deeds, g i f t s , d e vises, a l i e n a t i o n s , &c 335 D i s t r i b u t i o n of I n t e s t a t e s ' Estates 336 R e l i e f of Trustees 337 Executors, and A d m i n i s t r a t o r s S e c t i o n XXII. MERCANTILE LAW. 338 Prevention of Frauds and P e r j u r i e s 339 Insurance (2) S e c t i o n X X I I I . LAWS AFFECTING SPECIAL CLASSES OF PERSONS (2) 340 Infants (2) 341 Lunatics (2) 342 Landlord and Tenant (2) 136 These enactments were explained by l i s t i n g s i n SCHEDULE A "... Imperial Acts, and parts of Imperial Acts, r e l a t i n g to property and c i v i l r i g h t s appearing-to be i n force i n Ontario at the end of the year 1897, by v i r t u e of P r o v i n c i a l L e g i s l a t i o n , which have been revised, consolidated, and ( i f , and so far as they were i n force i n the Province of Ontario, and within the l e g i s l a t i v e authority of the Province) repealed from the day upon which the Consolidated Statutes comprised i n volume 3 of the Revised Statutes of Ontario, 1897, take e f f e c t , including Acts repealed by the Mortmain & Charitable Uses Act, 1902, and the Statute Law Revision Act, 1902." and 72 SCHEDULE B showing where the Acts l i s t e d i n Schedule A have been consolidated i n the Revised Statutes of.Ontario, 1897, Volume I I I . 73 In addition to the usual protections on consolidation and repeal, the Act authorizing The Revised Statutes, 1897, provided as follows: "12. The i n s e r t i o n of any Act i n the said Schedule A or B s h a l l not be construed as a declaration that such Act or any part of i t was, or was not, i n force immediately before the coming into force of the said Statutes." 74 However, a f t e r the 1902 Statute, the Schedules have the force of statutes, as provided by s e c t i o n 4: " So soon as the said incorporation of such Acts and parts of Acts with the said statutes ... the Lieutenant-Governor may cause a correct printed r o l l thereof ... which r o l l s h a l l be held to be the o r i g i n a l thereof and to embody the several Acts and parts of Acts mentioned as repealed i n the amended Schedule thereto annexed, and s h a l l be deemed to include and comprise a l l provisions contained i n any Imperial Statute r e l a t i n g to property and c i v i l r i g h t s which have heretofore been incorporated into the statute law of this Province, and which at the time of the passing of t h i s Act remained i n force except only those referred to i n Schedule C to the s a i d consolidated Acts annexed ...." 75 137 (b) SCHEDULE C l i s t s . "Imperial Acta, and parts, of Imperial Acts, r e l a t i n g to property and c i v i l r i g h t s appearing to be i n force i n Ontario by v i r t u e of P r o v i n c i a l L e g l i s l a t i o n which are 76 not repealed, revised or consolidated". The Schedule i s as follows: i i u <1) +J ft cfl T i t l e of Act Subject of Act 17 52 Hen. 3 (St. Marlbridge). 2 31 Car. 2. 5 7 Anne. 12 21 4 Geo. 2. 23 24 Geo. 2 21, ss.1,2 13 Geo. 3 49 21 Geo. 3 of Guardians i n Soccage. Habeas Corpus Act. B r i t i s h subjects born abroad. Ambassadors. B r i t i s h subjects born abroad. Correction of the Calendar. B r i t i s h subjects born abroad. The Lord's Day Act. In addition to the above, (1) a l l Acts or parts of Acts i n force r e l a t i n g to Marriage; and (2) a l l Acts or parts of Acts i n force r e l a t i n g to e c c l e s i a s t i c a l property, and the r i g h t s of persons therein. " The Habeas Corpus Act appears i n the Schedule C l i s t which i s i n force i n accordance with the provisions of s e c t i o n 4, and-appears i n Part I I I of the Appendix, where i t s provisions are extended 5with the following note: "This Act was introduced i n t o Upper Canada, and i s s t i l l i n force, but has not been revised, because i t deals only with cases of commitment or detainer for criminal or supposed c r i m i n a l matter ( s i c ) , (see preamble of R.S.O. c. 83). It i s therefore printed as the Act now appears i n the Imperial Revised Statutes, omitting only sections 10 - 14, which are i n a p p l i c a b l e . " 77 (c) The Appendix to The Revised Statutes of Ontario, 1897, 138 Volume I I I , i s i n four parts of which three r e l a t e to l e g i s l a t i o n i n force proprio vigore. Part I. l i s t s seven c o n s t i t u t i o n a l acts: The P e t i t i o n of Right The B i l l of Rights The Act of Settlement The Quebec Act The C o n s t i t u t i o n a l Act, 1791 Act to remove doubts as to V a l i d i t y of C o l o n i a l Laws Act respecting the establishment of Provinces i n the Dominion of Canada 78 Two things should be noted with respect to these: (i) they are a l l i n -force proprio vigore and the l i s t i s not complete. Subsequent re v i s i o n s of Statutes i n Ontario, including the 1970 Revision, r e f e r to a further l i s t published i n the 1859 Consolidated Statutes of Canada, and recommend that these too should be provided for i n Ontario l e g i s l a t i o n . ( i i ) the l i s t i n g i s duplicated i n the l i s t i n Part IV of the Appendix. Part I I . l i s t s seven further statutes i n force proprio vigore i n Ontario, a l l r e l a t i n g to Evidence and a l l duplicated i n the l i s t i n Part IV of the Appendix. Part I I I . i s the Habeas Corpus Act previously r e f e r r e d to. Part IV. i s a "TABLE OF IMPERIAL STATUTES (OTHER THAN THOSE RELATING TO CRIMINAL LAW INTRODUCED BY "THE QUEBEC ACT,"1774,) APPEARING TO BE IN FORCE IN CANADA EX PROPRIO VIGORE, AT THE END OF 1901". 79 with the following proviso: "NOTE.—This Table i s not to be considered as exhaustive, or exclusive. I t i s intended for convenience of reference." Volume 3 i s the work of Holmested, the Senior Registrar of the High Court, under the supervision of a Committee composed of 139 f i y e members. A contemporary reyiew presumes that the Committee made the decision as to what statutes were to be included and the, form of the r e v i s i o n . The review notes the need of a s i m i l a r r e v i s - 80 i o n by the Federal government i n respect of c r i m i n a l law. When the r e v i s i o n of cri m i n a l law was undertaken by the Federal govern- 81 ment, i t was i n the form of a Code, modelled on the Code which had been drafted for India. The enactment of chapters 322 to 342 i n c l u s i v e was i n fact a s i m i l a r consolidation of English Law, but was not a complete consolidation of Ontario law as i t did not at that time amalgamate these provisions with the Ontario l e g i s l a t i v e provisions then i n force. ( i i ) Further consolidation A further consolidation has taken place and only f i v e of the twenty-one chapters consolidated i n 1902 remain as a separate enactment. There appears to be no p a r t i c u l a r reason why these f i v e have not been incorporated into the Revised Statutes of Ontario as consolidated Statutes. They are: 322 An Act respecting c e r t a i n rights and l i b e r t i e s of the people 323 An Act concerning Monopolies, and dispensation with penal laws, etc. 327 Champerty 330 Real Property 331 Uses and Trusts ( i i i ) Ontario Law Reform Commission 82 Gosse, i n 1969, as Counsel for the Ontario Law Reform 83 Commission prepared a memorandum for the Commission as to the proposed study of the "App l i c a t i o n of Imperial Statutes i n Ontario". 140 He suggested three avenues which the study could take: "(a) a review of the 1902 treatment of Imperial Statutes to ensure that i t has done what i t purported to do; and (b) a review of the Imperial Statutes which were consol- idated i n 1902 with a view to r e v i s i n g outdated law or language; and (c) an i n v e s t i g a t i o n of those Imperial Statutes i n force ex proprio vigore i n Ontario, dealing with matters within p r o v i n c i a l j u r i s d i c t i o n , with a view to recommending repeal, r e v i s i o n and consolidation into the p r o v i n c i a l s t a t u t e s . " he added, " I t would be p o s s i b l e , of course, f o r such a study also to include an examination of Imperial Statutes which are i n force i n Canada but which r e l a t e to matters w i t h i n f e d e r a l j u r i s d i c t i o n . " 84 Gosse had previously considered "The Reception of English Property Law i n Ontario" and his unpublished material was made a v a i l a b l e to the Commission for t h e i r information, and..was . 85 re f e r r e d to i n the 1969 Memorandum. I t was h i s opinion that: (1) the 1902 Revision was a l l - i n c l u s i v e , and "... i t appears that an English statute which was overlooked i n the c l a s s i f i c a t i o n would not have continued to be law i n Ontario a f t e r 1902, ..."except those i n force ex proprio vigore and those statutes referred to i n Schedule C;8&idand (2) the e f f e c t of a statute included i n the 1902 consol- i d a t i o n , i f i t was not part of Ontario law before that date, by the operation of s. 5 and s. 6, was to be part of the Ontario law. Gosse noted however, one s i t u a t i o n at le a s t where Imperial Statutes may s t i l l be looked to, providing the example of the "Nullum Tempus Act of 1769 (9 Geo. I l l , c. 16, otherwise known as the CroWri Suits A c t ) , i s applicable i n actions between a subject and the Crown i n r i g h t of Canada. (See, 141 (for example, Attorney General of Canada y. Krause,jl956] O.R. 675 and also Anger and Konsb.erger. Canadian Law of Real Property, at p. 779.) The p r o v i n c i a l l e g i s l a t u r e cannot i n t e r f e r e with such r i g h t s . On the other hand, the Crown i n r i g h t of Ontario would be bound by the p r o v i n c i a l Limitations Act, which includes provisions from the Nullum Tempus Act which were incorporated into the former statute i n 1902."87 2- C o d i f i c a t i o n (1) C o d i f i c a t i o n of p a r t i c u l a r aspects of law Supersession by statute, or C o d i f i c a t i o n by the l o c a l l e g i s l a t u r e has been effected i n Canada with the Criminal Code and 89 i n India, with the Penal Code, Contracts Act, and Evidence Act. C o d i f i c a t i o n has been accomplished i n more l i m i t e d matters i n the Offences yu against the Person Ordinance enacted i n G i b r a l t a r i n 1934 and i n the 91 C i v i l Wrongs Law of Cyprus. (2) The American colonies I n i t i a l l y the American Colonies on separation from England adopted one of the following methods to deal with the B r i t i s h s t a t u t e s : 1. No reference to statutes, but p r o v i s i o n that the laws hereto- fore i n force (or i n force i n p r i o r j u r i s d i c t i o n ) to continue; 2. Provision that the common law and B r i t i s h statutes were or were to continue i n force; 3. Provision that the common law and B r i t i s h statutes as of a p a r t i c u l a r date were i n force; 4. Pr o v i s i o n that English statutes enacted p r i o r to 1607 "of a general nature" were the rule of decision; 5. P r o v i s i o n that the common law r e l a t i v e to crimes to be i n force 92: As the i n d i v i d u a l States were organized, some provisions for English Law changed, and the following were added: 6. Continuance of general p r o v i s i o n that common law and B r i t i s h statutes were i n force supplemented by non- statutory l i s t authorized by the l e g i s l a t u r e . 142 7. P r o v i s i o n repealing B r i t i s h Cor English) statutes upon completion of statutory r e v i s i o n 8. Pr o v i s i o n repealing English statutes without completion of statutory r e v i s i o n 93 Without developing a de t a i l e d h i s t o r y of the refinement of statute law i n the " o l d " American colonies, i t i s perhaps s u f f i c i e n t 9 to i n d i c a t e that the trend was i n general c o d i f i c a t i o n i n most States. One State, New York, where c o d i f i c a t i o n began a f t e r s e v e r a l preliminary l i s t i n g s had been made, i s of p a r t i c u l a r i n t e r e s t as i t i l l u s t r a t e s three tangents of the English Law question, (1) the problem of colonies wishing to adopt English Law passed a f t e r settlement or conquest. (New York, while a c t u a l l y being a conquered colony, has been always treated as i f i t had been settled.) (2) the procedure adopted i n what was intended to be a f u l l l e g i s l a t i v e reform of statute law (option 6); and (3) the d i f f i c u l t y of unseating s e t t l e r s ' law. (a) North Carolina: general p r o v i s i o n with a non-statutory l i s t authorized by the l e g i s l a t u r e North Carolina i n 1749 had attempted to incorporate many English Statutes into i t s law by reference. This Act was disallowed 95 i n 1754. A f t e r r e b e l l i o n , North Carolina f i r s t provided that the common law and B r i t i s h statutes were i n force, and they continued i n force between 1778 and 1837, when the Statutes were revised. Several l i s t s were published i n North Carolina i n th i s period: (1) In 1791, Francois-Xavier Martin was appointed and prepared a C o l l e c t i o n of the Statutes of the Parliament of England i n force i n the State of North Carolina. His l i s t was approved by the General Assembly i n 1804, but was disapproved i n the Preface to the Revised Statutes 143 1837 j as being; " . . . u t t e r l y unworthy of the talents and industry of the distinguished compiler, omitting many important statutes, always i n force, and i n s e r t i n g many others, which never were, and never could have been i n force, ei t h e r in--the' Province or i n the State of North Carolina "96 (2) A fragmentary l i s t was published i n 1814 and 1815. This l i s t , "An Abridgement of the Statute Law of G r e a t - B r i t a i n , Now i n Force i n North Carolina," i s not mentioned i n the Preface to the Revised Statutes of 1837. 97 (3) In 1817 the Assembly authorized and appointed Com- missioners to prepare another l i s t . The lengthy Report of the Commissioners was ordered published and "was not either sanctioned by law or disapproved " 98 The General Assembly i n the course of statutory r e v i s i o n of 1836-1837, enacted l e g i s l a t i o n which e f f e c t i v e l y repeals any English statutes i n force, "An Act Declaring What Parts of the Common Law S h a l l Be In Force In This State" declared: ... a l l such parts of the common law, as were hereto- fore i n force and use w i t h i n this State, or so much of the said common law as i s not destructive of, or repug- nant to, or inconsistent with, the freedom and independ- ence of this State and the form of government therein established, and which has not been otherwise provided for i n whole or i n part, not abrogated, repealed, or become obsolete, are hereby declared to be i n f u l l force within t h i s State. 99 and "An Act Concerning The Revised Statutes provided i n t e r a l i a , ... a l l the statutes of England or Great B r i t a i n hereto- fore i n use i n t h i s State, are hereby declared to be repealed and of no force and e f f e c t from and a f t e r the f i r s t date of January next 100 These provisions have apparently been more e f f e c t i v e than those made i n New York. 144 (b) New. York; the r e y i s i o n - r e p e a l method In view of the extensive r e v i s i o n and r e p e a l undertaken by New York, i t i s of i n t e r e s t that the Colony of 'New York Act of 1767,"^"'passed December 24, 1767, had purported to adopt a large quantity of English l e g i s l a t i o n not extended to the Colony. The 1767 Act was i n the following terms: " WHEREAS divers Acts of Parliament passed since the Establishment of a Legislature i n t h i s Colony, have nevertheless been pr a c t i s e d upon us extending to this colony; tho' they are not declared i n the said Acts to extend to the Plantations: and sundry Acts have been since passed, which i t would be expedient to extend to th i s Colony; Arid i t being conducive to the common Weal, as w e l l as agreeable to his Majesty's most gracious Intentions; that the Laws of this Colony should conform as nearly as Possible to the Laws of England; therefore and to prevent a l l Doubts and Scruples r e l a t i v e to former proceedings,whether Consonant to the Law as i t stood before or since the passing such modern Statutes. BE i t enacted by h i s Excellency the Governor, the Council and the General Assembly and i t i s hereby enacted by the Authority of the same; that the se v e r a l Acts of P a r l i a - ment or so much thereof as are her e i n a f t e r p a r t i c u l a r l y mentioned s h a l l be deemed to be i n f u l l Force and E f f e c t with- i n this Colony:" This Act was disallowed by Imperial Order i n Council of December 9, 1770. The Report of Richard Jackson, counsel to the Commissioners of Trade and Plantations reads i n part, "That nothing can be more obvious than that such a Cumulative Act deprives both the Crown and the Governor of that d i s t i n c t approbation or dis-approbation that i s e s s e n t i a l to the Constitution of the Province, and to a l l s i m i l a r constitutions and that the perusal of the Acts of Parlimenfcr(sic.) themselves, make i t palpable that such an introduction by way of reference w i l l frequently occasion great d i f f i c u l t i e s i n the Construct- ion, and those sometimes such as ought to be l e f t to a Court of J u s t i c e to decide." 102 145 After r e b e l l i o n , New York had made pro v i s i o n that the 103 common law and B r i t i s h statutes as of A p r i l 19, 1775, were i n force. This s i t u a t i o n prevailed between 1777 and 1788. On the 15th A p r i l , 1786, the New York l e g i s l a t u r e passed "An act for r e v i s i n g and digesting the laws of this s t a t e , " appoint- ing Samuel Jones and Richard Varick i n t e r a l i a "to c o l l e c t , and reduce into proper form, under c e r t a i n heads or t i t l e s of b i l l s , a l l the statutes, and lay the same b i l l s before the Legislature of this state, from time to time, as they s h a l l prepare the same; ...that such of them as shaLlbe approved of by the Legislature may be enact- ed into laws of this state; to the in t e n t that when the same s h a l l be completed, then, and from thenceforth, none of the statutes of England, or of Great B r i t a i n , s h a l l operate, or be considered as laws of this s t a t e . " 104 Several b i l l s were passed at the sessions i n 1787 and 1788, and the following English statutes were s a i d to be re-enacted: Quia emptores, as "An ACT concerning Tenures," 20 February 1787; the statutes of Marlbridge and Gloucester, i n "an ACT for preventing Waste," 30 January, 1787; Servants imbezzeling (sic) t h e i r masters goods to the value forty s h i l l i n g s , or above ... as "An ACT declaring i t to be a Felony i n Servants to embezzle t h e i r Master's Goods," February 7, 1787; and the Statute of Frauds, as "an ACT for the Prevention of Frauds." February 8, 1787; and An act to reduce the rate of i n t e r e s t ...as "An ACT f o r preventing Usury," February 8, 1787. 105 Two other enactments are believed to be based on English Law: "An ACT concerning Uses," and "An ACT concerning Amendments and J e o f a i l s . " 106 V i r g i n i a was the f i r s t State to i n i t i a t e a r e v i s a l - r e p e a l system of dealing with the English statutes. The method i s s a i d to 14 6 have originated with Thomas Jefferson who worked on the r e y i s i o n statutes f o r V i r g i n i a between 1776 and 1779.^^ V i r g i n i a did not complete the work u n t i l 1792, however, i n New York, the Le g i s l a t u r e passed "An Act f o r the Amendments of the Law, and the better Advance- ment of J u s t i c e , " on February 27, 1788. The f i r s t t h i r t y - f i v e s e c t - ions "dealt p r i m a r i l y with procedural matters in c l u d i n g the granting of bail', 1 with three sections modifying or repealing c e r t a i n t e c h n i c a l r e a l property p r a c t i c e s . The f i n a l s e c t i o n reads: And be i t further Enacted by the Authority aforesaid, That from and aft e r the f i r s t day of May next, none of the Statutes of England, or of Grea t - B r i t a i n , s h a l l operate or be considered as Laws of this State." 108 The New York Constitution of 1821 made reference to the amendment of law of the colony: "Such parts of the common law, and of the acts of the l e g i s l a t u r e of the Colony of New York, as together did form the law of the said colony on the nineteenth day of A p r i l , one thousand seven hundred and seventy-five, and the resolutions of the congress of the s a i d colony, ... which have not since expired, or been repealed or alt e r e d ; and such acts of the l e g i s l a t u r e of this State as are now i n force, s h a l l be and continue the law of this State, subject to such a l t e r a t i o n s .... But a l l such parts of the common law, and such of the s a i d acts or parts thereof as are repugnant to this c o n s t i t u t i o n , are hereby abrogated." 109 The Act of 27 February 1788 was with i n this d e f i n i t i o n and therefore was continued, subject to the proviso i n the c o n s t i t u t i o n . However, the l e g i s l a t u r e further enacted "An ACT concerning the Revised Statutes," 10 December, 1828, which provided: " 3. None of the statutes of England or Great B r i t a i n s h a l l be considered as laws of th i s state; nor s h a l l they be deemed to have any force and e f f e c t i n t h i s s t a t e , since the f i r s t of May i n the year one thousand seven hundred and eighty-eight. 147, 4. No statutes passed by the government of the l a t e colony of New York, s h a l l be considered as law In this s t a t e - 110 In 1833, i n Bogardus v. T r i n i t y Church, Chancellor Wal- worth, when considering a tenancy of the parties as tenants i n com- mon, created i n 1705, referred to two English statutes of l i m i t a t i o n i n force i n the colony of New York,in 1705, and s a i d , "...(These statutes have been) brought h i t h e r by our ancestors, who emigrated to t h i s country from England, where these statutes were then i n force, and s e t t l e d i n this state as an English colony. I t i s a n a t u r a l presumption, and therefore i s adopted as a r u l e of law, that on settlement ... they carry with them the general laws of the mother country which are applicable to the s i t u a t i o n of the c o l o n i s t s i n the new t e r r i t o r y ; ... The common law of the mother country as modified by p o s i t i v e enactements, together with the statute laws which are i n force at the time of the emigration of the c o l o n i s t s , become i n f a c t the common law, rather than the common and statute law of the colony. The statute law of the mother country, therefore, when introduced i n t o the colony of New York by common consent, because i t was applicable to the c o l o n i s t s i n t h e i r new s i t u a t i o n , and not l e g i s l a t i v e enactment, became a part of the common law of this province ...." 111 Brown notes the l o g i c a l consequence of this decision, the courts must consider the question of what English statutes could be considered to be i n force as part of the common law of the state at the time i t broke 112 away from Great B r i t a i n . What was the e f f e c t of the reenactment? This matter was considered i n the 1859 case Van Rensselaer v. Hayes, 113 where the statute being considered was the Statute of Quia Emptores, "The fact that the statute we are considering was reenacted i n this State i n 1787, has no tendency to show that i t had not the force of law p r i o r to that time. Indeed, the contrary inference i s nearly i r r e s i s t - i b l e , when i t i s seen how i t came to be reenacted. The compilation of statutes prepared by Jones and Varick, and 148 enacted by the Le g i s l a t u r e , ... was made i n pursuance of an act passed i n 1786... The Statute of tenures was not, therefore, understood as introducing a new law, but was the putting into a more s u i t a b l e form c e r t a i n enactments which i t was conceived had the force of law i n the Colony, and which the c o n s t i t u t i o n had made a part of the law of the State " 114 It would appear that, at le a s t i n New York, the term "common law" i n the 1821 c o n s t i t u t i o n included English statutes, which would j u s t i f y the enactment made i n 1828, which again, apparently i n e f f e c t u a l l y , sought to bar English statutes which were transmitted with the colonis t s and "so transmitted constituted the common law of the colonies ... and by c o n s t i t u t i o n a l adoption became the common law of this state ...." C o d i f i c a t i o n began i n 1846 and was o r i g i n a l l y the work of F i e l d . The Codes he prepared are the basis of New York's succ e s s f u l c o d i f i c a t i o n and h i s Code of Procedure which was the basis of pr a c t i c e for t h i r t y years. He i s credited with the success of the c o d i f i c a t i o n movement i n America. 116 (c) P r o v i s i o n repealing English statutes without completion of statutory r e v i s i o n The Northwest T e r r i t o r y , known as Ohio, continued the com- mon law i n 1784 and i n 1795 the Governor and Judges of the T e r r i t o r y i n the i r l e g i s l a t i v e capacity adopted s u b s t a n t i a l l y the pr o v i s i o n made for V i r g i n i a i n 1776, which stated: "The common law of England, a l l statutes or acts of the B r i t i s h parliament made i n aid of the common law, p r i o r to the fourth year of the reign of King James the f i r s t (and which are of a general nature, not l o c a l to that Kingdom) and also the several laws i n force i n this T e r r i t o r y , s h a l l be the rule of decision 117 In 1779 the General Assembly of the T e r r i t o r y i n two acts s p e c i f i - c a l l y repealed so much of the 1795 act r e l a t i n g to three English statutes;, 118 149 A f t e r Ohio was admitted as a state to the Union, the General Assemhly i n 18Q5 passed an Act that repealed the proyisdon xnade i n 1795 and continued by the f i r s t state c o n s t i t u t i o n , hut 1805 enactment was i n s u b s t a n t i a l l y the same terms".-"' In 1806 the General Assembly repealed so much of'the 1805 Act "... as declared the common law of England and the statutes or acts of the B r i t i s h Parliament made i n aid of the common law, p r i o r to the fourth year of the reign of King James the F i r s t , to-be i n force as the rule of decision i n th i s state 119} In 1848, the State Supreme Court commented on th i s repeal, "... The adoption of the law from V i r g i n i a and the two enactments of 1805 and 1806 by impl i c a t i o n , n e c e s s a r i l y show that the B r i t i s h statutes never had any force i n Ohio save that derived from t h e i r adoption by the Legis- l a t u r e . In a l l cases where the B r i t i s h statutes contra- vene or change the common law and are not so incorporated into i t as to have become part and parc e l of the system, i t i s supposed they have no force within this State independent of L e g i s l a t i v e enactments adopting them." 120, :3. L i s t s of Statutes The American colonies had used at least s i x methods of l i s t i n g English statutes. As these generally preceded complete c o d i f i c a t i o n , they have been dealt with under that heading. The various methods used were: (1) l e g i s l a t i v e adoption of a l i s t of named English statutes, or (2) of English statutes i n force at a p a r t i c u l a r date; (3) p a r t i a l reform i n v o l v i n g the continuance of the general provision that common law and B r i t i s h statutes were i n force, supplemented by a non-statutory l i s t authorized by the l e g i s l a t u r e , or . 150 (4) supplemented by a non-statutory l i s t published but not . authorized by the l e g i s l a t u r e ; C5) p r o v i s i o n repealing E n g l i s h statutes upon completion of f u l l statutory r e v i s i o n , or "121 (6) without completion of f u l l statutory r e v i s i o n . L i s t i n g therefore has been accepted as a s u i t a b l e method to, reduce the statutes to a manageable quantity. Each l i s t has v a l i d i t y for another j u r i s d i c t i o n only i f evaluated on the basis of the d e c i s i v e - ness of l e g i s l a t i o n , i f any, giving the l i s t force; the reception date; the date of the r e v i s i o n ; and the materials included i n the l i s t i n g made. For example, the l i s t does not always cut-of f at the reception date. (a) Alberta: I n s t i t u t e of Law Research arid Reform Alberta i s another Canadian j u r i s d i c t i o n that has a 122 reception statute of general a p p l i c a t i o n . The I n s t i t u t e of Law Research and Reform i n Alberta has recently prepared a l i s t of statutes which were i n force i n England at the reception date, 15 July, 1870. The l i s t was prepared by Cote and an Index i s being 123 prepared. The l a s t Report of the I n s t i t u t e indicates that the l i s t w i l l be published s h o r t l y . Cote' has himself anticipated the problem of v a l i d i t y f o r the Alberta l i s t when he s a i d , concerning reform "Intermediate or p a r t i a l schemes have been more common. One frequently adopted has been an o f f i c i a l l i s t of what English statutes are believed to be a p p l i c - able and i n force.' Such l i s t s usually have no l e g i s l a t i v e sanction whatever but the distinguished auspices under which they are prepared and the f a c t they are usually published as an appendix to the l o c a l volumes of statutes, have doubtless combined to give them considerable per- suasive authority." 124 1 5 1 The Alberta l i s t , when published, w i l l be a contribution to the determination of law for those provinces and t e r r i t o r i e s haying 125 the 15 July, 1870 reception date. I t should be noted however, that i t w i l l not a f f e c t the l e g i s l a t i v e ambit of the Federal government, and I t s e f f e c t on proprio vigore l e g i s l a t i o n i n force i n Alberta w i l l depend on the enacting l e g i s l a t i o n , i f any. There i s the need i f the l i s t eventually i s sanctioned by l e g i s l a t i o n to examine the terms of such statute c a r e f u l l y i n order to avoid "126 the s i t u a t i o n which pertained i n New York. (b) Bahamas: Statutes expressly declared i n force 127 The Declaratory Act, 1799, expressly declared i n force 1 f \ . " - ' Q P C . i -:_r- a l i s t of statutes f o r the period from 1225 to 1787. The l i s t has been subsequently increased and c e r t a i n portions of the common law excepted by the r e v i s i o n of 1957. The enumerated statutes, as revised i n 1957, now includes a number of scheduled acts which 128 extend to 56 & 57 V i c t o r i a , the year 1893. Each i s reproduced as a Chapter i n the Revised e d i t i o n of the Laws,"and a l l Acts r e l a t i n g to the prerogative of the Crown and the rights and l i b e r t i e s of the subject" are included. (c) G i b r a l t a r : Statutes declared i n force, with s p e c i f i c p r o v i s i o n to a l t e r . . . . . . In 1962, G i b r a l t a r enacted a l i s t of 136 English statutes, the enactment replacing the previous a p p l i c a t i o n of statutes of general a p p l i c a t i o n i n force i n England December 31, 1883 and making p r o v i s i o n that the l i s t may be a l t e r e d by r e s o l u t i o n of the L e g i s - 129 l a t i v e Council. 15 2: (d) Ghana (formerly Gold Coast): Statutes s p e c i f i c a l l y excluded The l i s t i n Ghana i s the reverse p r o v i s i o n : Acts which do not apply are l i s t e d . They were f i r s t l i s t e d i n 1893 and since that time, many others have been added. The 1960 Consti t u t i o n applies common law and customary law (as defined i n the Inter- 130: p r e t a t i o n Act 1960) ; and "enactments i n force immediately before the coming into operation of the Constitution". These enactments include, statutes of general a p p l i c a t i o n , which were i n force i n England on July 24, 1874, and United Kingdom Acts which applied proprio vigore, and both subject to: (1) the provisions of Ghana statutes, and (2) the o f f i c i a l l i s t of United Kingdom statutes which do not apply, as published i n 1893 and as revised i n 1951. I t should be noted, however, that these l i s t s are not complete, they have been added to by several Ghana statutes which exclude other statutes. 131 (e) A p p l i c a t i o n of English Law Ordinance, Hong Kong Hong Kong i s concerned with a reception date of 5 A p r i l 1843. The Ordinance adopted i s i n the form of a l i s t of English statutes which apply. The law of Hong Kong i s complicated by the reception of Chinese law and perhaps f o r this reason the l i s t i s not an extensive one. 132 4. Complete Reform Few colonies have had the courage to cut o f f access to the English statutes completely. Many of the l i s t i n g s made by the " o l d " colonies of North America were designed as preliminary steps to such 132A p r o v i s i o n . Delimiting English Statutes that may be re f e r r e d 153 to may be a s u f f i c i e n t complete reform. Western Nigeria's reform s t a r t e d with such d e l i m i t a t i o n , and, has now proceeded to a complete repeal of a l l applicable English Statutes, save those enacted as Western Nigerian law. V i c t o r i a , A u s t r a l i a , has made a complete pr o v i s i o n by combining several methods of l i s t i n g and enactment i n one magnificent and succinct reform statute. (a) Western Nigeria Nigeria was administered by B r i t a i n as the Colony and Protectorate of Nigeria u n t i l October 1, 1960, when i t became independ- ent. The Nigerian Independence Act, 1960, gave the Nigerian l e g i s l a t u r e s 133 power to repeal i n N i g e r i a any Imperial enactments. Western Nigeria's 1959 statute r e v i s i o n was the work of the Law Revision Commissioner, S i r John V e r i t y , who i n 1959, a f t e r examin- ing the English statute book from 1267 to 1899, published a c o l l e c t i o n 134 of revised enactments which he considered to be i n force i n the Region. The complete reform was effected i n two parts: 1. the l e g i s l a t u r e enacted twenty-one laws of the Region which were those English statutes which i t wished to r e t a i n . These were set out i n f u l l . Most, but not a l l , were pre-1900 statutes of general a p p l i c a t i o n . 135 2. the l e g i s l a t u r e enacted, to perfect the complete reform, the Law of England (Application) Law, which declared i n t e r a l i a that thereafter, "no Imperial Act h i t h e r t o i n force w i t h i n ' the 1Region,"shall Have-any force or .../effect-hereiri.:''--136 .The' Statute;;made:'the usual provisions, of. a ^ t r a h s i t i o n a l ."nature as are found i n such l e g i s l a t i o n . 15.4 Although the scheme Is apparently complete, i t i,s sutrject to the Federal j u r i s d i c t i o n of N i g e r i a , and the whole system embraces pro- v i s i o n for customary law. Park has considered the future of the law i n Nigeria, and h i s p r e d i c t i o n i s most i n t e r e s t i n g , "The case law w i l l comprise both common law and equity, and they w i l l be Nigerian, not English, common law and equity. Of course t h e i r rules w i l l , as a matter of .. h i s t o r y , have originated i n England, but i t may be ex- pected that before too long the courts w i l l cease to be required to apply the common law and equity of England, and w i l l be able to evolve t h e i r own developments based firml y on t h e i r own as w e l l as English decisions. Statutes w i l l probably provide the most important s i n g l e source of law, for they w i l l have been the p r i n c i p a l means of creating the u n i f i e d system. I t i s l i k e l y that every statute i n force w i l l be an enactment of a Nigerian l e g i s - l a t u r e . Imperial Orders i n Council that extend d i r e c t l y to Nigeria w i l l most c e r t a i n l y have been superceded by l o c a l enactments, and i t i s to be hoped that the other l e g i s l a t u r e s w i l l follow the example of that of the Western Region and eliminate from t h e i r law also pre-1900 English statutes of general a p p l i c a t i o n . Customary law as such w i l l cease to be a general source of law i n i t s own r i g h t , though some of i t s rules w i l l probably have been enacted i n statutory form." 137 138 Mid-Western Nigeria was carved from Western Ni g e r i a August 9, 1963. 139 N i g e r i a became a Republic on October 1, 1963. In a P o s t s c r i p t to h i s Book, Park noted that with the coming independence, the Constitutions would probably change, but he apparently saw no reason 140 to amend his p r e d i c t i o n as to the future of the statute law. (b) V i c t o r i a (Australia) In V i c t o r i a , an exhaustive study undertaken by His Honour S i r Leo Cussen formed the basis f o r the Imperial Acts Ap p l i c a t i o n Act, 1922. 141 Cussen had completed a r e v i s i o n and consolidation of the V i c t o r i a n 155 Statutes i n 1915, which, had been accepted by- the Legislature i n glbho. He continued f o r seyen years to study the reception of E n g l i s h s t a t u t e s , examining-the o r i g i n a l E n g l i s h l e g i s l a t i o n , considering the texts of 142 eminent l e g a l a u t h o r i t i e s , the text of l o c a l l e g i s l a t i o n , and the i n t e r p r e t a t i v e case law. The State of V i c t o r i a has a reception date as at 25 Ju l y , 1828, introduced by Imperial l e g i s l a t i o n . The reception statute was designed to c l a r i f y the matter of s e t t l e r s ' law, which was p a r t i c u l a r l y com- p l i c a t e d i n V i c t o r i a as the o r i g i n a l colony of New South Wales had been 143 a penal colony with very l i m i t e d c i v i l r i g h t s . The Statute declared, "... a l l laws and statutes i n force within the realm of England at the time of the passing of th i s Act ... s h a l l be applied i n the administration of j u s t i c e i n the courts ...." 144 The matter of a p p l i c a b i l i t y caused considerable l i t i g a t i o n i n A u s t r a l i a and i t has been calculated that i t was the subject matter of between one-quarter and one-third of the cases decided by the New South Wales 145 Courts between 1825 and 1862. The "Memorandum f o r the Honourable the Premier" submitted with the d r a f t B i l l s t a t e s , "The test whether any such Act i s i n force i n V i c t o r i a i s whether i t could reasonably have been applied to the Colony i n 1828, the date of the Act 9 Geo. IV c. 83 "146 U n t i l 1851, New South Wales had included V i c t o r i a i n i t s t e r r i t o r y , and the area was known as the Port P h i l l i p D i s t r i c t . On separation, the same law continued to be i n force. P r i o r to the 1922 Statute, enacted law i n force i n V i c t o r i a comprised: 15 6 CD Imperial l e g i s l a t i o n introduced in. 1828 i n t o New. South Wales; Cii) New South Wales l e g i s l a t i o n passed between 1828 and 1851j ( i i i ) V i c t o r i a n l e g i s l a t i o n from 1851 onward; (iv) CertaiMActs of the Imperial Parliament before and, since" 1828 i n i t s capacity as the supreme Le g i s l a t u r e , which operate by paramount force and which are imposed by express words or necessary intendment and which are not subject to repeal or amendment by the V i c t o r i a n Parliament; 147 ^ (v) L e g i s l a t i o n of the Commonwealth of A u s t r a l i a . The l e g i s l a t i o n of group ( i ) i s the subject matter of the 1922 Statute. Cussen conceptualized the problem i n V i c t o r i a as to this body of received law, "Over the operation of this body of law i n V i c t o r i a the Parliament of V i c t o r i a has c o n t r o l , both as to i t s substance and form. I t i s not r e a d i l y a v a i l a b l e i n V i c t o r i a , except to those wi t h i n reach of large l i b r a r i e s , and i t i s not characterized by any formal marks which r e a d i l y d i s t i n g u i s h i t on the one hand from l e g i s l a t i o n so obviously a r i s i n g out of purely English conditions as not to be applicable here, or on the other hand from some of the l e g i s l a t i o n which, being enacted by the Imperial Parliament i n i t s capacity as the supreme Leg i s l a t u r e , operates as of paramount force i n every part of the Dominions f a l l i n g w i t h i n i t s scope, l e g i s l a t i o n which the l o c a l L e g i s l a t u r e can neither repeal or vary...." 148 The general s i t u a t i o n i s the same as i t i s i n Canada. Upon int r o d u c t i o n , such law ceased to be "English Law" and was an enactment which could be repealed or amended by the l o c a l l e g i s l a t u r e , or by the Federal or Commonwealth l e g i s l a t u r e , each within t h e i r a l located powers. The Act divided such l e g i s l a t i o n into four parts: Three receptacles f o r l e g i s l a t i o n were provided, i n a d d i t i o n to the Part I I I consolidating provisions. These receptacles are: (1) Transcribed enactments: Clause 4, provides that those Imperial enactments mentioned i n the 15 7 F i r s t Schedule, to the extent that they are set out or transcribed i n Part I I , s h a l l continue to haye sxich. force and e f f e c t as they now have. The Report of the Select Committee s a i d w i t h respect to these, "These enactments, i t i s believed, are now In force i n this State, but for greater caution they are not s p e c i f i c a l l y r e - enacted, but are given whatever l e g a l force and e f f e c t they had on the 31 December, 1921." 149 Part II of the Act reprints those portions of the Imperial Acts preserved by Clause 4, and l i s t e d i n the F i r s t Schedule. The Explanatory Paper which accompanied the B i l l provides the explanation for these, "With respect to Imperial enactments not thus consolidated which may be held to be i n force by v i r t u e of the Act 9 George IV. c. LXXXIII., the B i l l enumerates i n chronological order i n the F i r s t Schedule and sets out i n a l p h a b e t i c a l order i n Fart II the greater part of such enactments. In many cases these have been j u d i c a i l l y declared to be i n force l o c a l l y , and i n the remaining cases i t seems possible, applying j u d i c i a l t e s t s , that they would be held to be i n force i n V i c t o r i a . " 150 (2) Repealed enactments: Clause 7, repeals a l l Imperial enactments i n force i n England at the time of 9 Geo. IV c. 83 "so far as they are i n force i n V i c t o r i a and so far as the V i c t o r i a n Parliament has power to repeal them," but there are excepted: the transcribed enactments, mentioned i n Clauses 5 and 6. (3) Exceptions to the repealed enactments: (a) Clause 5 exemption, embraces i n three groups those l e g i s l a t i v e matters i n which the State has no j u r i s d i c t i o n , (i ) as to l e g i s l a t i o n i n force proprio vigore; 151 ( i i ) as to l e g i s l a t i o n r e l a t i n g to the s e c u r i t y or safety of the sovereign "so far as they are i n force i n England at the passing of this Act"; 152 ( i i i ) as to any "enactment r e l a t i n g to naval or m i l i t a r y matters or to n a t u r a l i z a t i o n - n a t i o n a l i t y or aliens or to copyrights 158 patents, of inventions, or designs or trade marks or to any matter with respect to which the Parliament of the Commonwealth of A u s t r a l i a has made or hereafter makes any law with which a repeal i f effected by such section would be i n c o n s i s t e n t . " 153 (b) Clause 6 exemption, which excepts those s p e c i a l enactments mentioned i i i the f i r s t column of the Second Schedule of the J Act (except as otherwise provided i n the Schedule) to the extent that they were i n force i n England on the 31 December, 1921. 1 5 4. Clause 7 i s a general repeal for V i c t o r i a of a l l Imperial enactments not enumerated or set out i n the Act, apart from the excep- tions created by Clause 4, the transcribed enactments, and the exceptions created by Clauses 5 and 6. Those enactments mentioned i n the F i r s t Schedule (Clause 4) and the Second Schedule (Clause 6), may not be i n operation i n V i c t o r i a , and t h e i r e f f e c t i s l i m i t e d to whatsoever e f f e c t they had on the 31 December, 1921, 3 - 5 5 but nothing outside these Schedules may be invoked by the Courts of V i c t o r i a . The Explanatory Paper elaborates on the placing of an enactment i n A or B, "... generally ... the enactments i n the F i r s t Schedule are those which are of the greatest p r a c t i c a l importance and which at present can be conveniently transcribed. I t i s with respect to these that the greatest p r a c t i c a l d i f f i c u l t y , cuased by the i n a c c e s s i b i l i t y of authentic texts, a r i s e s . I t i s not intended by what i s ju s t stated to suggest that the enactments enumerated i n the Second Schedule are not of importance; i t i s intended merely to in d i c a t e that they do not c a l l for p r a c t i c a l consideration so frequently or so urgently as those enumerated i n the F i r s t Schedule." 156 Pr o v i s i o n i s made i n the Act to transfe r Acts from one Schedule to another. The f i n a l group of Statutes are those consolidated: 159 (4) Consolidated Provisions; Part I I I , Clauses 10. to 1Q0, i n c l u s i y e , are consolidated and consolidating provisions which r e v i s e , consolidate, and enact as indigenous law the English Statutes therein as set out. The Explanatory Paper states with respect to this Bart, that English l e g i s l a t i o n a f t e r the reception date was considered, and ind i c a t e s that further reform may be effected?""^ A Table i n d i c a t i n g the Repealed Enactments was placed at the end of the Explanatory Paper. The Explanatory Paper and the Table are not a part of the Statute. Six r e s t r i c t i o n s are placed on the Repealed Enactments Table, severely r e s t r i c t i n g i t s value for another j u r i s d i c t i o n , unless these were evaluated. The Act received Royal Assent 25 May, 1923 and was declared to be i n force at 1 September, 1923. V i c t o r i a has continued the work of r e v i s i o n and consolidation. The Statute i t s e l f has been amended twice and further consolidation has taken place incorporating the transcribed enactments i n t o such statutes as the Evidence Act, Juries Act, Justices Act, P o l i c e Offences Act, and the 159 Property Law Act, a l l enactments being made i n 1928. Part I I I of the Act has been s u b s t a n t i a l l y repealed by consolidations and enactments made i n 19 28, namely, Administration and Probate Act Constit u t i o n Act Amendement Act Crimes Act Employers and Employees Act Legal Profession P r a c t i c e Act Marriage Act Po l i c e Offences Act Religious Successory and Charitable Trusts Act, and the Supreme Court Act. - J ^ Q 160 A f t e r this s u b s t a n t i a l consolidation of 1928, only f i v e " sections remain i n Part I I I , which o r i g i n a l l y comprised ninety-one sections. Sections 42, 43, and 98 to 100 i n c l u s i v e , which a l l r e l a t e to c r i m i n a l matters, acts or offences remain. "^ "̂ Further review of the V i c t o r i a n Statute was undertaken by 162 Gretchen Kewley. Her review was undertaken i n June, 1973, for a period of two years; her mandate was to consider the 130 unrepealed Acts l i s t e d i n the F i r s t and Second Schedules of the Imperial Acts. Application Act, 1922, as amended. Kewley made two Interim Reports, i n the twelfth and twentieth month of her tenure. In a Progress Report as at December, 1973, she indicated that i n addition to studying a l l the V i c t o r i a n materials a v a i l a b l e , she had studied recent recommendations i n connection with reform i n England, New South Wales, Papua New Guinea and Hong Kong; the Report on the Imperial Acts i n force i n the A u s t r a l i a n C a p i t a l T e r r i t o r y issued by the Law Reform Commission of that T e r r i t o r y i n 1973 and the repeals effected i n England by the Criminal Law Act, 1967 and the Statute Law (Repeals) Acts of 1969 and 19 71. She also considered the Law Commission Reports which led to the passing of these Acts, with a view to determining whether the reason for repeal i n England applied i n V i c t o r i a . Kewley's f i n a l Report was presented 11th June, 1975. The Introduction notes that she has examined the 130 Imperial Acts which comprised her mandate, which dated from 1267, required examination. She discussed these under a l p h a b e t i c a l l y arranged subject heads, and reported 161 "Each unrepealed Act i n the F i r s t and Second Schedules has been examined i n d i v i d u a l l y to determine i t s present relevance i n the law of V i c t o r i a , and a recom- mendation has been made as to i t s retention or repeal based on the examination." 164 The Schedules to Kewley's Report are from the 1922 Act and comprise, i n e f f e c t , a Chronological Index to the Kewley recommendations and a short statement of her recommendations. The Statutes are considered i n d i v i d u a l l y i n the Report i n a l p h a b e t i c a l order. However, i n some cases groupings have been made. She states the object of her review i s "to c l e a r away as much as possible of the dead wood recommending for repeal those enactments which appear meaningless, unnecessary or uncertain i n t h e i r a p p l i c a - t i o n or adequately covered by present-day V i c t o r i a n law, and recommending for retention only those English Acts which are undoubtedly i n operation i n V i c t o r i a , or with which the V i c t o r i a n law i s so i n e x t r i c a b l y bound, that to repeal them would be impossible." 165 Those which are recommended for retention mainly r e l a t e to Criminal law. In addition to the retention of these Statutes, at l e a s t , Kewley has dealt with the others on the basis of (a) t h e i r repeal depends on a P o l i c y Decision: (b) they are unrepealable i n that V i c t o r i a does not have the power to repeal proprio vigore l e g i s l a t i o n ; (c) several i t i s suggested should be replaced i n whole or part; (d) the balance repealed. 166 Kewley also considered the Part I I sections of the 1922 Statute which remain i n force. 167 Sections 42 and 43 provide f o r c e r t a i n gaps i n Part II and Kewley advises that the future of these sections depends on the form a future Act may take. 162 Sections 98 to 100 i n c l u s i v e r e l a t e to the adoption f o r V i c t o r i a of the English Piracy Act, 1837; th i s must be preserved to operate i n conjunction with the two Piracy Acts of the Second Schedule, u n t i l replaced by modern l e g i s l a t i o n ; Preservation of the death penalty for c e r t a i n offences (s. 99) 168, and the common law offences of 7 & 8 V i c t . , c. 24 (1844, Imp.) as to badgering, engrossing, f o r e s t a l l i n g (s. 100) i s a p o l i c y decision to be decided by the l e g i s l a t u r e . The V i c t o r i a n material has been developed at length as i t i s the most exhaustive study that has been made. The resource material has been given greatest consideration and includes what i s apparently a l l the a v a i l - able authorities.' I f a study were proceeded with i n B r i t i s h Columbia, the V i c t o r i a n material and the material r e f e r r e d to by Kewley would provide a great deal of a u t h o r i t a t i v e scholarship as to i n d i v i d u a l statutes for the period before 1828, and indeed as to the s i t u a t i o n of the law of England at a much l a t e r date. The 1922 Statute has formed the basis of study for several 169 of the reports which were considered by Kewley. (c) The legacy of the V i c t o r i a n l e g i s l a t i o n ( i ) Report of the Daw Reform Commission of New South Wales on the Appli c a t i o n of Imperial Acts i n New South Wales (L.R.C. 4) \ November, 1967 The Law Reform Commission made this Report to the Attorney General pursuant to a reference by him to the Commission i n the following terms, d i r e c t i n g the Commission "To review a l l i m p e r i a l Acts i n force i n th i s State (as a f i r s t step towards general Statute Law Revision) and so f a r as p r a c t i c a b l e , the preparation of l e g i s l a t i o n to repeal them as Imperial Acjzs and re-enact such part of them as should remain part of the law of New South Wales." 170 163 The Report of the Commission to the Attorney General reviews the mandate, the h i s t o r y of the Colony, the substantive declarations i n the reception statute and advises i t has confined t h e i r study to those Imperial Acts i n force, or possibly i n force, i n New South Wales by v i r t u e of the Imperial Act 9, Geo. IV c. 83 s. 24, save for some i n c i d e n t a l matters r e l a t i n g thereto. They excepted consideration of the other two groups of statutes i n force i n New South Wales : "(1) ... by express words or necessary Intendment and by v i r t u e of the paramount l e g i s l a t i v e power of the Imperial Parliament (for example the Merchant Shipping Act, 1894) ; " They did however, deal with c e r t a i n of these i n Appendix III and provided for them i n section 6. "(3) ... because they have been adopted by l e g i s l a t i o n of Real Property L i m i t a t i o n Act, 1833). 171 The Report contains a b r i e f summary of the l e g a l i n t e r - p r e t a t i o n that has been placed on that Statute, noting that the Report has been prepared on the basis that the following cases c o r r e c t l y state the law: " f o r p r a c t i c a l purposes i t may be taken that Chief J u s t i c e Forbes'1 view "that the s e c t i o n did not introduce any new p r i n c i p l e but was merely declaratory of the common law" was correct, as Lord Watson, i n d e l i v e r - ing the opinion of the Privy Council i n Cooper v. Stuart (1889) 14 A.C. 286, treated New South Wales as an ordinary s e t t l e d colony." ... so f a r as the same can be applied, that i s , "can be reasonably applied". The test applicable was r e - stated by the High Court i n 1905, i n Quan Yick v. Hinds, 2 C.L.R. 345, as being whether the p a r t i c u l a r Imperial Act (or the part of i t which was i n question) was s u i t a b l e or unsuitable i n i t s nature to the needs of the Colony, and that the question must be determined by a consideration of the condition of the Colony i n 1828 (per G r i f f i t h C.J. at p. 356). 172 The resource material of the Commission i s referred to, •164 "Imperial Statutes i n force i n New South Wales" prepared -by the l a t e Mr. H.B. Bignold of the New South Wales Bar, ... the V i c t o r i a n statute known as the Imperial Acts Application Act 1922, prepared by S i r Leo Cussen, a Judge of the Supreme Court of V i c t o r i a , as a r e s u l t of what has been described as "years of patient and erudite labour". Before t h e i r time Alexander O l i v e r , parliamentary draftsman of New South Wales, had brought out what he c a l l e d "The Statute Index" i n 1894. This included a "Chronological Table of Statutes of the Imperial Le g i s l a t u r e (not s p e c i f i c a l l y adopted by l o c a l Acts) which r e l a t e to the Colony of New South Wales, or a f f e c t the Colony as part of Her Majesty's Possess- ions or Dominions; also of those j u d i c i a l l y decided or presumed to be i n force i n New South Wales. This table l i s t e d 214 statutes up to the time for the period from 9 Henry III c. 29, the Great Charter of Henry I I I of 1225 (a re-issue of Magna Carta of 1217) , up to the passing of 9 Geo. IV c. 83 173 Appendix IV of the Report i s a draft B i l l . 173A The Imperial Acts A p p l i c a t i o n Act, 1967, provides four receptacles for Acts (as did the V i c t o r i a n l e g i s l a t i o n ) : (1) substituted enactments: section 5 The provision i n Part I I I i s substituted for Acts as l i s t e d i n F i r s t Schedule. These are described i n Report Appendix I, as A. Acts i n force which should be continued i n force or s u b s t i t u t i o n , e i t h e r wholly or i n part. SUBSTITUTED ENACTMENTS are those which contain provisions the substance of which (so f a r as they were enforced i n England, 25 July 1828) should continue to be law., s nrge suggested new p r o v i s i o n w i l l be subject to the provisions of State Acts, which s h a l l p r e v a i l . 174 This section and Part I I I correspond to the V i c t o r i a n Act, Clause 4 and Part I I . preserved Imperial enactments: section 6 165 Those l i s t e d i n Part I of the Second Schedule and the portion mentioned i n the f i r s t column of the Imperial enactment mentioned i n the second column of Part II of the Second Schedule which were i n force i n England on the 28 July, 1928) i s declared to have remained i n force,, to be i n force and " s h a l l f r o m the commencement of this Act be i n force i n New South Wales and not be repealed by s. 8. These are described i n Report Appendix I as B. Those which i t i s impracticable to enact s u b s t i t u t - ed provisions but which i t i s desirable to continue i n force i n t h e i r ancient form: C o n s t i t u t i o n a l Enactments and also provisions as to treason, piracy and Imperial Acts before 25 July, 1828, applying i r r e s p e c t i v e of the recep- t i o n statute. 175 Enactments not affected by repeal: section 7 (a) "or any other Imperial enactment which indep- endently of the provisions of the Imperial Act 9 George IV, Chapter 83, i s made applicable to New South Wales by the express words or necessary intendment of any Imperial enactment." This s e c t i o n corresponds to the V i c t o r i a n Act, Clause 7. (b) Those l i s t e d i n the Third Schedule, which f a l l w i thin the d e f i n i t i o n of (a) i f the word "other" i s removed. 176 The Statutes before 25th July, 1828, applying i r r e s p e c t - ive of 9 George IV, c. 83, Appendix I I I , before discuss- ing these, explains, "Although the Commonwealth by the adoption i n 1942 of the Statute of Westminster 19 31 has been able to remove for i t s e l f the l e g a l l i m i t a t i o n s of c o l o n i a l status which occasionally f e t t e r e d the operations of C o l o n i a l or Dominion L e g i s l a t u r e s , the States are s t i l l subject to some of the l e g a l f e t t e r s of the c o l o n i a l era, although no doubt for p r a c t i c a l purposes the A u s t r a l i a n States are now autonomous p o l i t i c a l e n t i t i e s so far as the B r i t i s h Government i s concerned (Castles, Limitations on the Autonomy of the A u s t r a l i a n States, P u b l i c Law, 1962, p. 176). The States are l e g a l l y s t i l l bound by 166 Imperial Statutes before or a f t e r 1865, the year of the passing of the C o l o n i a l Laws V a l i d i t y Act, which apply to them by paramount force — by express words or necessary intendment SUBJECT to recommending the repeal of those l i s t e d i n the Third Schedule which must be effected by the Imperial Parliament (or by the Commonwealth i f within i t s ambit of j u r i s d i c t i o n . Schedule I I I Statutes are as follows: Sec. 7 Enactments applying i r r e s p e c t i v e of 9 George IV c. 83 (A) Criminal Law Enactments. (1698-9) 11 William I II c. 12 Crimes by Governors of Colonies. (1772) 12 George III c. 24 The Dockyards, &c. , Protection Act, 1772. (1802) 42 George III c. 85, s . l .. .. The Criminal J u r i s - d i c t i o n Act, 1802. (1812) 52 George I I I c. 156 The Prisoners of War (Escape) Act, 1812. (1824) 5 George IV c. 113 The Slave Trade Act, 1824. (B) Miscellaneous. (1813) 54 George I I I c. 15, s.4 The New South Wales (Debts) Act, 1813. (1819) 59 George III c. 60 The Ordinations f o r Colonies Act, 1819. (1821) 1 and 2 George IV c.121,ss.27-29 The Commissariat Accounts Act, 1821. This i s a deviation from the V i c t o r i a n Act, s. 5. 177 (4) Repealed enactments: Section 8 repeals a l l Imperial Enactments (commencing with the Statute of Merton, 20 Henry I I I A.D. 1235-6) in f o r c e i n England at the time of passing 9 Geo. IV c.83 "so f a r as they are i n force i n New South Wales", but they are excepted the provisions of sections 6 and 7. 178 This section corresponds to the V i c t o r i a Act. No. 3270, Clause 7. 167 The Report deals with many matters r e l a t i n g only to New South Wales, including^ (a) the adopted English statutes. A l i s t of these statutes was given i n Oliver's Statute Index of 1874-,. and numbered 214, to 1874- . 179 Appendix I I , which provides the reasons f o r repeal of the English statutes i n force reads i n part, • - r ^ . "We have not included Imperial enactments which have been held not to be i n force i n New South Wales, nor have we included those which have been repealed expressly or ( i n a l l cases) by implication. In some instances repeal by i m p l i c a - ti o n results from the same subject matter being dealt with by l o c a l l e g i s l a t i o n . An example is. the Imperial Act 14, Geo. I l l c. 78 (Fires Prevention (Metropolis) Act, 1774) which i s discussed i n HazlewOod v. Webber, 52 C.L.R. 268 at pp. 275-6..." 180 (b) the matters i n v o l v i n g government p o l i c y on which the s p e c i f i c d i r e c t i o n of the Attorney General was sought: "(a) The repeal of the residue of se c t i o n 4 of 29 Car. II c.3. (The Statute of Frauds, 1677). (b) Laws r e l a t i n g to p r i v i l e g e s of Parliament. (c) The repeal of 1 Geo. I St.2. C i 5 . (The Riot Act, 1714). (d) Laws r e l a t i n g to Habeas Corpus. (e) Laws r e l a t i n g to l o t t e r i e s and gaming. (f) Laws r e l a t i n g to the S h e r i f f . (g) Laws r e l a t i n g to disturbance of r e l i g i o u s worship and Sunday observance." 181 (c) the e f f e c t on present l e g i s l a t i o n i n New South Wales i s then considered. The following matters are of p a r t i c u l a r i n t e r e s t f o r other j u r i s d i c t i o n s : (d) section 9, the savings clause which i s drawn i n conformity with the savings clause of s. 38 of the Interpretation Act, 1889 (Imp.) and not the "Westbury savings", i s explained, " A s i m i l a r saving clause was adopted i n the three Statute Law Revision Acts passed i n New South Wales i n 1898, 1924 and 1937. The Commissioner f or 16'B the Consolidation and Revision of the Statute Law, His Honour, Judge Heydon, i n his memorandum to the B i l l of 1898 s a i d "Revision Acts of this character have been p e r i o d i c a l l y prepared and passed i n England for now a number of years back. To prevent the poss- i b i l i t y ; of any i n j u r y being done by these repeals, . a saving clause very c a r e f u l l y drawn has been i n s e r - ted i n every Revision Act, and has been found, under the test of actual use, to be quite s u f f i c i e n t for i t s purpose. I t has, therefore, been placed i n this B i l l . " This clause was also adopted i n s e c t i o n 7 of the Imperial Acts A p p l i c a t i o n Act 1922 of V i c t o r i a . (See S i r Leo Cussen's evidence. V i c t o r i a n Statutes, 1922,. p. 106.) The clause embodying the "Westbury savings" apparently has come to be considered to go too f a r , i t having been argued that the savings may operate to n u l l i f y the e f f e c t of a p a r t i c u l a r repeal. (Cf. Woodfall's Landlord and Tenant 24th E d i t i o n (1939), p.453.) The Westbury savings were discussed by Mr. C.H. Chorley, Parliamentary Counsel, i n h i s evidence before the J o i n t Select Committee of the House of Lords and the House of Commons i n May, 1958. (See 7th Report of the Joi n t Committee on Consolida- t i o n and Statute Law Revision' B i l l s f o r the Session 1957-58: H.L. Papers 1957-58, Nos 5-VI, 108-1 and H.C.Papers 1957-58, No. 209-1, c i t e d Hals, o p . c i t . , p.474.) I t was then decided to dispense with the Westbury savings and to r e l y on the general prov- i s i o n s i n the Interpretation Act, 1889, se c t i o n 38, and accordingly i n the Statute Law Revision Act of 1958 and l a t e r Statute Law Revision Acts, there i s no s p e c i a l saving clause. In j u s t i c e to the memory of Lord Westbury i t might be mentioned that a note to the B i l l for the Statute Law Revision Act,.1863, contains the f o l - lowing: "The ea r l y statutes stand i n a p e c u l i a r p o s i t i o n with r e l a t i o n to modern law. Many of t h e i r provisions remain, i n some sense, embodied i n the ex i s t i n g law, notwithstanding that t h e i r immediate subject matter may no longer e x i s t . (To mention one instance: 6 Ed . l Stat. Gloucester, c.5, respecting the Writ of Waste, forms part of the e x i s t i n g law as to waste, although the Writ of Waste has been abolished.) This p e c u l i a r i t y has always been borne i n mind i n the compilation- of the schedule and the very s p e c i a l terms of the saving i n the repealing clause of the B i l l have been adopted i n order to preclude any apprehension of a substantive alteration- of the law being produced by the repeal of any of these early s t a t u t e s . " Section 8 of our Interpretation Act of 189 7 169 resembles section 38 of the English I n t e r p r e t a t i o n Act of 1889 except that i t does not contain paragraph (a) of section 38 of the English Act, which provides that unless the contrary i n t e n t i o n appears the repeal s h a l l not revive anything not i n force or e x i s t i n g at the time at which the repeal takes effect.' Such a prov i s i o n i s e s s e n t i a l i n a B i l l such as t h i s . Accord- in g l y the provisions of section 38 of the Act of 1889 have been adopted i n the Draft B i l l . The "Westbury clauses" are, we think, inappropriate i n the B i l l for the following reasons - (1) The B i l l i s intended to make s u b s t a n t i a l a l t e r a t i o n i n the law (for example, by the repeal of the remaining provisions of the Statute Law Revision Act i s intended, i n general, merely to cut away statutory mat- e r i a l which has ceased to have a present e f f e c t . (2) The wider the saving clauses, the greater the problems w i l l be of ascertaining the extent of the repeal. (3) The wider the saving clauses, the more need there w i l l be to r e f e r to the repealed Imperial Acts. The u t i l i t y of the B i l l w i l l be measured by the extent to which i t makes such reference unnecessary. (4) , I f , despite the attention which we have given to the problems, the repeals turn out to have gone too f a r , the p o s i t i o n can be restored by proclamation under clause 11. This i s better than reliance on the neces- s a r i l y vague words of a saving clause. Clause 9 (2) (c) w i l l preserve the case law which may be o r i g i n a l l y based wholly or p a r t l y on any of the repealed Imperial enactments. (e) Following the example of S i r Leo Cussen, we have included i n clause 11 of the d r a f t B i l l a pro v i s i o n to empower the Governor i n Council to revive any Imperial enactment which the d r a f t B i l l would repeal. The purpose i s to enable any accidental omission from the F i r s t or Second Schedules to be cured without further l e g i s l a t i o n being required. ^ The statute was passed i n 1969 and was used extensively i n the Au s t r a l i a n C a p i t a l T e r r i t o r y Report. ( i i ) Report of the Law Reform Commission of the A u s t r a l i a n C a p i t a l T e r r i t o r y and Supplementary Report, 1973; This report was made to the Attorney-General of the 170 Commonwealth i s dated the 25th day of August, 1972. The r e f - e r r a l here was made on 17th September, 1971. "A review of the Imperial Acts that s t i l l apply in. the A u s t r a l i a n C a p i t a l T e r r i t o r y with a view to recommending — (a) which of those Acts i n t h e i r a p p l i c a t i o n to the A u s t r a l i a n C a p i t a l T e r r i t o r y should be repealed; (b) which should continue to apply i n the T e r r i t o r y ; and (c) which should be replaced by l e g i s l a t i o n i n more modern form." 183 The following statements of the Commission, which consisted of the Honourable Mr. J u s t i c e Blackburn as Chairman, and N.M. Macphillamy- and Professor P.S. Atiyah as Members, are material to appraising 1 84 this Report, (a) concerning the resource material used-, (1) the work of S i r Leo Cussen i n V i c t o r i a (2) the report of the Law Reform Commission of New South Wales "We have r e l i e d greatly on these two works, p a r t i c u l a r l y the l a t t e r . We are s a t i s f i e d that the l i s t of Imperial Acts which were treated by the New South Wales Commission as i n force i n New South Wales when that Commission reported, can be accepted as a s u b s t a n t i a l l y exhaustive l i s t of such Acts passed before the A u s t r a l i a n Courts Act 1828. We have found very few Acts indeed which that Commission did not mention, and we do not b e l i e v e that there are any-... of any importance." (3) some uncompleted work done i n this f i e l d by o f f i c e r s of your Department before the establishment of the Law Reform Commission of the A u s t r a l i a n C a p i t a l T e r r i t o r y (b) as to the objects of the reference, "We have assumed that the s i m p l i f i c a t i o n of statute law, and the reduction of the places where such law i s to be found, are desirable ends i n themselves, and that a l l applicable Imperial Acts for the 171 retention of which no s u f f i c i e n t reason can be shown should therefore be repealed. The l e g i s l a t i v e schemes " of both the I.A.A. Act of 1922- (Vic.) and the I.A.A. Act of 1969 (N.S.W.) are based upon t h i s p r i n c i p l e ; ' they provide for the repeal (with the necessary saving clauses of a l l applicable Imperial Acts with c e r t a i n express exceptions. We recommend the adoption of the same p r i n c i p l e .... (T)his obviates the necessity for absolute p r e c i s i o n .... We do not claim such a degree of p r e c i s i o n , but we are confident that none of any. s i g n i f i c a n c e has been overlooked^, We also b e l i e v e that we are not recommending the "repeal of any Act the e f f e c t of which there i s any s u b s t a n t i a l reason to preserve ...." ) summarizing; the law i n force i n the C a p i t a l T e r r i t o r y , ) enactments i n force by v i r u t e of t h e i r own express provisions or by necessary intendment, and of the parasir--.. - ount power of the successive Imperial Parliaments. The l i s t at present includes, for example, the Herbalists Act 1542, the-; Dockyards Protection Act 1772 the Commonwealth of A u s t r a l i a Constitution Act 1900, and the Statute of.Westminster 1931. The Law Reform Commission of New South Wales mentioned some of these Acts i n c i d e n t a l l y , pointing out that they were unrepealable by the Parliament of New South Wales, but "... ignored, for some reason, a l l such Acts passed a f t e r the A u s t r a l i a n Courts Act of 1828. But they are r e - - pealable by the Commonwealth Parliament, and may thus, by v i r t u e of an Ordinance be rendered i n a p p l i c a b l e to the A u s t r a l i a n C a p i t a l T e r r i t o r y .... We have therefore t r i e d to f i n d and consider a l l such Acts passed before 3 September 1939. This date i s that on which s. 4 of the Statute of Westminster 1931 came in t o force i n regard to A u s t r a l i a n l a w ; s e e s. 10 of the Statute, and s. 3 of the- :Statute of Westminster Adoption Act 1942 (Commonwealth) '.. 184 ) A f t e r 3 September 1939, the United Kingdom Parliament 17 2 i s competent to l e g i s l a t e f o r the Commonwealth, pro- vided the Commonwealth requests and consents to the enactment of the l e g i s l a t i o n i n question. The Commis- sion s a i d , " I f any such l e g i s l a t i o n has been so passed, i t would obviously not be f i t for repeal i n the A u s t r a l i a n C a p i t a l T e r r i t o r y . We therefore recommend that the provision e f f e c t i n g a 'residuary repeal' should be so expressed as not to apply to Acts passed on or a f t e r 3 September 1939"; 185 ( i i i ) which came in t o force upon the foundation of the Colony, or which came i n t o force by v i r t u e of s. 24 of the A u s t r a l i a n Courts Act,1928 and 1. having come into force i n the United Kingdom on or before 25 July 1828 and 2. were s t i l l so i n force immediately before 1 January 1911, and came i n t o force i n the A u s t r a l i a n C a p i t a l t e r r i t o r y by v i r t u e of s. 6 of the Seat of Govern- ment acceptance Act, 1909 and 3. have not since 1 January 1911, by l e g i s l a t i o n , been made ina p p l i c a b l e to the A u s t r a l i a n C a p i t a l T e r r i t o r y . as to statutory i n t e r p r e t a t i o n , (i) the doctrine of implied repeal- 186 This doctrine as exemplified i n Hazelwood v. Webber and expressed as follows: "The r e p e t i t i o n of this section by the c o l o n i a l l e g i s l a t i o n .operated as an implied repeal of the B r i t i s h enactment so f a r as i t applied to New South Wales...." The Report notes that i t may be confined to the r e p e t i t i o n c o l o n i a l l e g i s l a t i o n of the words of an Imperial enactment which 173 i s i n force by v i r t u e of the common law rule or the Act of 1828. They s a i d , "Moreover, the p r i n c i p l e i s a curious one. The idea of e a r l i e r l e g i s l a t i o n being.repealed b y , l a t e r inconsistent l e g i s l a t i o n i s we l l understood; t h i s i s . t h e opposite — r e p e a l by l a t e r con- s i s t e n t - l e g i s l a t i o n . Whether, i n any given case, the p r i n c i p l e applies may depend on whether the words of the e a r l i e r Act are 'transcribed', 'repeated without a l t e r a t i o n ' or 'exactly repro- duced' i n the l a t e r Act. The expressions quoted are a l l used i n the p r i n c i p a l -judgment i n Hazelwood v. Webber. But i n Reid v. Fi t z g e r a l d (1926) 48 W.N. (N.S.W.) 25, Harvey, C. J . i n Eq. applied the same p r i n c i p l e where there was 'an exact reproduction ... save for the accidental and immaterial omission of three words'. This judgment was ref e r r e d to with approval by the High Court i n Hazel- wood v. Webber. I f , therefore, the p r i n c i p l e i s not confined to the case of absolutely i d e n t i c a l wording, i t may be sometimes arguable whether or not,a.repeal has taken place. But the point i s probably not of importance i n view of the course we recommend, that of the repeal of a l l Imperial enactments, with, express ex- ceptions." 187 ( i i ) the p r a c t i c a l problems of one compendium statute The two options of one compendium statute, as opposed to amend- ing each relevant Ordinance i s discussed. They considered the statute i n the form provided i n New South Wales, which contains a l l replacement pro- v i s i o n s ; and i n the form of l i s t s and reference to the compendium statute i n tables and indices^ The matter was l e f t f o r the draftsman to decide, although some suggestions as to the form of statute are set out i n Appendix 3 188 to the Report. (e) as to c l a s s i f i c a t i o n of statutes The Report has three Appendices, of which the f i r s t two are'repos-, i t o r i e s for statutes. They are, , Appendix 1 Part A, Acts to be preserved These Acts are l e f t as they are and are not restated i n modern terms. (1) some are Acts of major c o n s t i t u t i o n a l s i g n i f i c a n c e and of 174 h i s t o r i c a l s i g n i f i c a n c e , which axe r a r e l y c i t e d but should nevertheless remain i n force, such as Magna Carta and the Commonwealth of A u s t r a l i a Constitution Act, 1900; (ii)some are preserved to avoid a difference i n law between the A u s t r a l i a n C a p i t a l T e r r i t o r y and that of the States i n a f i e l d of law which applies to a l l States and T e r r i t - o r i e s . In such cases, i f appeal i s thought expedient^' i t would be appropriate to do so throughout Australia... Such an Act i s the Merchant Shipping Act, 1894;'..' - (iii)some are preserved as they r e l a t e to topics on which new l e g i s l a t i o n i s under consideration (the example given i s criminal law) or i s badly needed and the old law i s of some complexity (the example given i s l i m i t a t i o n of a c t i o n s ) . Appendix 1 Part B, Acts to be repealed and replaced These Acts are to be repealed and replaced by provisions i n modern terms. The l i s t i s s i m i l a r , but not i d e n t i c a l , to the Appendix 1(A) 189 l i s t of the New South Wales Report. Appendix 2, Acts to be repealed This Appendix i s a complete l i s t of a l l Imperial Acts which are or may be i n force and which are recommended f o r repeal. These should cease to be applicable. 3" 9^ (f) recommendations f o r l e g i s l a t i o n (i) the savings clauses of the new South Wales Report are adopted. ( i i ) 19 Substituted Provisions are l i s t e d f o r attention. 175 The Commission confined i t s e l f to the task of removing what i t deemed obsolete, while r e t a i n i n g the law i n i t s present sense. I t refrained from recommending reforms which touched upon p o l i c y but considered anticipated changes i n the law i n the C a p i t a l T e r r i t o r y . As a r e s u l t of i t s work, i t i s o l a t e d areas which require consideration by the Commission, inc l u d i n g the law of l i m i t a t i o n of actions and of r e a l property conveyancing, concerning which separate submissions w i l l be made. In one or two cases repeal or other amendment having an e f f e c t wider than merely i n the A u s t r a l i a n C a p i t a l T e r r i t o r y i s recommended. A further Report of 24 January 1973 dealt with three Acts which had been omitted i n the f i r s t Report. ( i i i ) An unpublished report on English Statutes i n Papua New Guinea by Professor R. O'Regan, Professor of Law,Queensland University, formerly of the Monash Law Faculty This Report i s apparently based on the V i c t o r i a n l e g i s l a t i o n . In addition to the many problems occasioned by the complicated l e g i s l a t i v e h i s t o r y of Papua New Guinea which was f i r s t attached to Queensland and l a t e r to the A u s t r a l i a n Federation, and i s now an independent State within the federation, Papua New Guinea has 191 the matter of t r a d i t i o n a l law of the aborigines to accommodate. 176 FOOTNOTES (Part III) 1. Reynolds v. Vaughan, supra, n.72, p. 98.- 2. Joseph Chitty, C o l l e c t i o n of Statutes, with notes thereon, intended as a C i r c u i t and Court Companion, F i r s t e d i t i o n : London, 1829, Second and Third e d i t i o n s , W. N. Welsby and Edward Beavan, ed. London, S. Sweet, both editions 4 v o l s . 1854 and 1865. Further editions by other e d i t o r s , known as "Chitty's Statutes". 3. Supra, n. 12, p. 20. 4 Maurice EugenLang, C o d i f i c a t i o n In the B r i t i s h Empire and America,(Amsterdam, H.J. P a r i s , 1924,)p. 28. 5- Courtenay I l b e r t , The Mechanics of Law Making, New York, Columbia University Press, 1914, p. 25 6 Loc. c i t . S i r Nicholas i s the Father of S i r Francis Bacon. 7. I b i d . , p. 26. 8. Loc. c i t . , C.T. Carr, "Revised Statutes", (1929) 45 Law Quarterly Review, p. 168; Donald V e a l l , The Popular Movement for Law Reform 1640 - 1660, Oxford, Clarendon Press, 1970, p. 70ff. 9. I l b e r t , loc. c i t . 10,. V e a l l , op. c i t . , p. 79; I l b e r t , op. c i t . , p. 27. Edward_ Foss, Biographica J u r i d i c a , a . . Biographical Dictionary of the Judges of England, 1066-1870 (London: John Murray, 1870) (Photostatic re p r i n t Germany Meisenheim 1971) : S i r Matthew Hale was C.J.K.B. 1671-1676. His Analysis of Law i s s a i d to be the basis of Blackstone's Comment- aries : Ashley Cooper, Lord Shaftesbury,was o r i g i n a l l y a Royalist but l a t e r one of Cromwell's Chancery Judges. King Charles i s s a i d to have described him as "a chancellor that was master of more law than a l l h i s judges ... and more d i v i n i t y than a l l Bishops". 11 ., Joseph H. Beale, "The Early English Statutes", (1921-2). 35 Harvard Law Review, p. 519ff. Laws p r i o r to Magna Carta have been printed by command of King William IV, Ancient Laws and I n s t i t u t e s of England, i n 2 volumes, prepared under the d i r e c t i o n of The Commissioners on the P u b l i c Records of the Kingdom, 1840. 177 12 I l b e r t , • op.• c i t . , p. 28; Carr, op. c i t . , p. 169-170. 13. I l b e r t , l o c . c i t . 14. I b i d . 0. Ruffhead was formerly associated as editor with J. Cay of the Statutes at large from Magna Carta to 13 Geo. I l l i n c . , i n 9 volumes published 1758-73 of which Ruffhead did v. 7-9. Serjeant Runnington who edited Hale's Common Law, also edited the Ruffhead e d i t i o n 1786. 15 Chronological Table and Index of Statutes, Fourth E d i t i o n 1235 - 1877, Preface.(1878) London, Eyre and Spottiswoode Her Majesty's P r i n t e r s , 1878. i s t ed. , 1870, '.-.various e d i t o r s . The Preface to the various editions are most valuable resources as to work done to improve the Index. t p, v i i ( 4 t h ed.) 16. Acts and Ordinances of the Interregnum 1642 - 1660, 3 volumes. Collected and edited by CH. F i r t h & R. S. Rait for the Statute Law Commissioners, London, His Majesty's Stationary O f f i c e , 1911; (photoreproduced F l o r i d a , Wm. W. Gaunt & Sons, Inc..,1969.) 17. I l b e r t , op. c i t . , p. 42; C e c i l T. Carr, "The Statutes Revised, 1950", (1951) 67 Law Quarterly Review, p. 486. 18,. Carr (1951) , 16c. c i t . ; Carr (1929) •< supra n.8» pp. 176, 1777. 19 , Loc.. c i t . • 20- Carr (1951) , l o c . c i t . 21, J.E. Cotd, "The Introduction of English Law i n t o A l b e r t a " , (1964), 3,.Alberta Law Review, 262 @ p. 266, n. 27, re f i r s t Index. 22, Supra, n. 15. 23- The L i s t of Statutes prepared by Cotef i s to be published by the Alberta I n s t i t u t e of Law Research and Reform. Alherta , I n s t i t u t e of Law Research and Reform, .1975-6 Report. July, 1976,p.26. 24. I l b e r t , op. c i t . , p. 32. 25. 26 & 27 V i c t . c. 125, (Imp.) 28 July, 1863. This i s the o r i g i n of the "Westbury savings" clause. This clause i s discussed i n terms of modern reform. C e c i l T. Carr, "The Statutes Revised, 1950" (1951), 67 Law Quarterly Review, 485, n. 4 and New South Wales Report, supra, p.168. ^ 178 26 The Schedule preferred to i n section 1 proyides.; "This Schedule i s to be read as r e f e r r i n g to the E d i t i o n prepared under the D i r e c t i o n of the Record Commission, i n t i t u l e d "The Statutes of the Realm;:printed by-Command "of h i s Majesty King George the Third, " i n pursuance of an Address of the House of Commons of Great B r i t a i n . "From o r i g i n a l Records and authentic Manuscripts". The Dates and T i t l e s of the Statutes and Acts are taken from that E d i t i o n ; the Chapters (before the D i v i s i o n i n t o separate Acts) are described by the marginal Abstracts, and the Enactments c i t e d i n terms are c i t e d from the Tran s l a t i o n i n t o E n g l i s h , or the o r i g i n a l E nglish, given i n that E d i t i o n . The Repeal by the present Act of a part of a Statute or Act set out or r e f e r r e d to i n the Terms of the T r a n s l a t i o n given i n that E d i t i o n i s to operate on the o r i g i n a l L a t i n or Norman-French of which the Transla- t i o n i s set out or r e f e r r e d to, as i f the O r i g i n a l i t s e l f were i n l i k e manner set out or r e f e r r e d to. A Description or C i t a t i o n of a portion of a Statute or Act i s i n c l u s i v e of the Words, Section, or other part f i r s t or l a s t mentioned, or otherwise referred to as forming the beginning, or as forming the end, of the portion comprised i n the Description or C i t a t i o n . The E d i t i o n of Ruffhead referred to i s that by Serjeant Runnington, 1786. " 27. Carr, op. l o c . c i t . 28 I l b e r t , op. c i t . , p. 39. A summary of the work of consolida- t i o n i s given, p. 36-40. 29, Lang, op. c i t . , p. 58. 30.. B i l l s of Exchange Act, 1882; 45 & 46 V i c t . c. 61 (Imp.) Partnership Act, 1890, 53 & 54 V i c t . c. 39 (Imp.) Sale of Goods Act, 1893, 56 & 57 V i c t . c. 71 (Imp.) Company Law Consolidation Act, 1908, 8 Ed. 7, c. 69; Now repealed (1948, 11 & 12 Geo. 6 c. 38 & 1929, c. 23.) 31, Lang, op. c i t . , p. 31, 62. Jeremy Bentham (1748 - 1832), parliamentarian, r e f e r r e d to by S i r Courtenay I l b e r t as "perhaps the greatest of law reformers". 32 Rene David and John E. C. B r i e r l e y , Major Legal Systems i n the World Today (An Introduction to the Comparative Study of Law), London, Stevens and Sons, 1968, English E d i t i o n , p. 50. ( F i r s t E d i t i o n , Rene David, published i n France, 1964.) They r e f e r to the f a i l u r e of Prussian c o d i f i c a t i o n i n 1794 as to the 179 former and to the Austrian Code of 1811 as having l i m i t e d expansion. B r i t a i n f a l l s i n the f i r s t grouping, not being "unhampered by the past and w i l l i n g - even at the expense of the p r i v i l e g e s of an older order to e s t a b l i s h the new p r i n c i p l e s of j u s t i c e , l i b e r t y and dignity of the i n d i v i d - u a l which, p o l i t i c a l l y , the Natural Law School maintained must be the basis for' society". 33 2 Wm. IV, c. 45 34 As given by I l b e r t , op. c i t . , p. 29. 35 Lang, op. c i t . , pp. 21-2, Lord Brougham addressing the House of Lords on law-making. 36. I b i d . , pp. 47-52, 88. Lang explains the extension of the Criminal Code to other j u r i s d i c t i o n s by c o l o n i a l l e g i s l a - t i o n . 37. I b i d . , p. 55, and at p. 66 & 67 as to influence i n Canada i n respect of the C r i n i n a l Code. 38. I b i d . , p. 57, quoting from Hansard, v o l . CCXLV, p. 327. 39. 12 & 13 Geo.VI c. 33, £onsolx^at^jn^of Enactments (Procedure) 40. The Law Commission Act, 1965 41. F i r s t Programme of the Law Commission, London, H.M. Stationery o f f i c e , 1965, p. 3-4. 42- The Law Commission (Law. Comm. No. 71) Tenth Annual Report 1974-5, p. 3. 43 Supra, n. 44, p. 95 44, Paul Gerin-Lajoie, C o n s t i t u t i o n a l Amendment i n Canada, Toronto, University of Toronto Press, 1950, p. 129ff. 45. F.R. Scott, "Forgotten Amendments to the Canadian Constitution, 1942, Canadian Bar Review, v o l . 20, p.339ff. 46.. Infra VI, 3, (b),/p. 154. 47 I n f r a VI, 2, (b), p.151. 48 I n f r a VI, 2, ( c ) , p.153. 49 I n f r a VI, 2, ( c ) , p.151. 180 50 Brown, supra (n.9 p.93) passim; Cote 1977, supra (n. 5 p. 19), p. 85. North Carolina i n f r a VI, 2 (a), p. 142. New York i n f r a VI, 2 (b) , p. 144. 51 I n f r a , VI, 1 (b), p. 132 Cote, op. c i t . , pp 88-9. W.R. Jackett, "Foundations of Canadian Law i n History and Theory,". Lectures delivered to Faculty of Law, Queens University, Kingston, Ontario, March 26, 27, 1962 and published i n O.E. Lang (ed.), Contemporary Problems of Public Law i n Canada (Toronto: University of Toronto Press, 1968, p. 1) 52 Seven j u r i s d i c t i o n s i n Canada have a reception statute of general a p p l i c a t i o n : B r i t i s h Columbia, Ontario, Manitoba, the North-West T e r r i t o r i e s and the Yukon T e r r i t o r y , Saskatchewan and Alberta. 53 Supra p. 9. 54 Report of Theodore Davie to His Honour Edgar Dewdney, Lieutenant Governor of B r i t i s h Columbia, supra (n.115, p. 101). 55 I b i d . , p. 4. 56 The Revised Statutes of B r i t i s h Columbia, 1911 Published by Authority; Arranged chronologically by the Commissioners f o r the Revised Statutes, 1911 ( V i c t o r i a , B.C. : William H. C u l l i n , P r i n t e r to the King's Most Excellent Majesty, 1913). 57 Ib i d . , p. 3. 58 Ibid. , p. 317, 59 As enactments of B r i t i s h Columbia. 60 The quotation i s from the explanation i n f r a n. 57. 61 Supra n. 58. 62 13 Geo. V. c.71 (1922, B.C.). 63 v. Appendix A. I , i n f r a p. 209. 64 S.B.C. 1969 c. 14 (B.C.) July 1, 1969. 181 65 K.B. Farquhar, "The Law Reform Commission of B r i t i s h Columbia, A PerspectiveV(May, 1976) 3 The Dalhousle Law Journal, 275 @ p. 280. Mr. ; 'Arthur Close, Counsel to the Law Commission i s the person presently concerned. The matter i s dealt with i n the 1972 Report of the Commission",-, recommending the r e v i s i o n - r e p e a l 66 Jackett, op. c i t . (method.(Probably the method they (would adopt would eventually be 67 R.S.O. 1970, c. 367. ( i n the form of the V i c t o r i a Act.) 68, 32 Geo. I l l , c. 1 (U.C.) 69. 2 Edw. VII, c. 13 (Ont.), 17 March 1902, The Revised Statutes of Ontario, 189 7, volume I I I (Toronto: Printed by L. K. Cameron, Law P r i n t e r to the King's Most Excellent Majesty, 1902), p p . v i . f f . 70 Ibi d . , p. i i i , Proclamation, 29 May, 1902. 71.v. Ibid. , Schedule A, p. 3899; Schedule B, p. 3903 72,. Loc. c i t . , p. 3899. 73. I b i d . , p. 3903. 74, 2 Edw. VII, c.13 (Ont.) s. 12, p.ix..7 75. Ibid. , P • v i i . 76, Supra n. 69, p. 3915. 77- I b i d . , Part I I I , Appendix, p. v. 78 I b i d . , P- y ' i 79. Ibid . , Part IV, Appendix p. x l i i i . The proviso printed immediately following the t i t l e of the Part. 80. "Consolidation of Imperial Statutes i n force i n Ontario" (1902) 22 Canadian Law Times 62, and "Revised Statutes of Ontario, v o l . I l l , " (1902) 38 Canadian Law Journal, 65 @ 66. 81. Lang, supra. n. 4, p. 67ff as to the c o d i f i c a t i o n of the Criminal Law i n Canada. 182 Richard F. Gosse, Q.C. LLB. D.Phil., formerly Counsel to the Ontario Law Reform Commission. ' and l a t e r a Commissioner of the Law Reform Commission of B r i t i s h Columbia, i s presently a Professor of Law, University of B r i t i s h Columbia. Ontario Law Reform Commission Act, 1964, c. 78 (Ont.) assented to May 8, 1964. Gosse. Memorandum to the Commissioners, Ontario Law Reform Commission (unpublished) dated June 12, I9~69,p.3, which refers to a Gosse draft material "The Reception of English Property Law i n Ontario" prepared 1966 (un- dated) . P u b l i c a t i o n rights are reserved i n respect of this draft material, as yet unpublished. Loc. c i t . Loc. c i t . Gosse Memorandumop-., ci-.t. , p. 2. Supra n. 81 Lang, l o c . c i t . , and also at p. 82ff., as to Indian c o d i f i c a t i o n . G i b r a l t a r was a ceded colony, v. Jephson v. Riera 12 E.R. 598, @ 606. English Law i s i n force 31 Dec. 1883, i f not i n c o n f l i c t with overriding provisions, such as the Code. O r i g i n a l l y acquired from Turkey, Cyprus was annexed i n 1914. Brown, supra (n.9, p. 93), p. 25. Ibi d . , pp 42-3. Op. c i t . , p. 32ff.; Lang, op. c i t . , p. 99ff. Brown, op. c i t . , pp. 31, 40 n. 62, as to Order i n Council disapproving, which was dated Apr 8, 1754. The text of the Act i s given at p.360ff. I b i d . , p. 31, pp. 145-6. Ibi d . , p. 33 n. 26: Carolina Law Repository, 549-555 (1814), 4 North Carolina Reports, Part I I , p.294-303. 183 Brown, Ibid, p. 32. Brown, op. c i t . , p. 373ff. Loc,. c i t . I b i d . , pp. 18, 31. I b i d . , p. 18-19, n. 34. Supra n. 101. I b i d . , p. 69 f f . , the quotation i s at p. 70; Lang', supra (n. p. 176), p. 114ff. as to New York C o d i f i c a t i o n Movement. Feb. 20, 1787, 2 Jones & Varick 67; Jan.-30, 1787, 2 Jones & Varick 7; Feb. 7, 1788, 2 Jones & Varick, .214; and 2 Jones & Varick, 67, 7, 214, -88 and 20, r e s p e c t i v e l y , Brown, o p . c i t . , p. 71, n. 5-9. Loc. c i t . Feb. 20, 1787, 2 Jones & Varick, 68; Feb. 20, 1788, 2 Jones & Varick. '^Ibid. , . ! > V l 3 4 f f . ; ' ' ' '. I b i d . , p. 71ff. Loc. c i t . Dec. 10, 1828, Laws of the State of New York, McKinney's Consolidated Laws of New York (St. Paul, Minn.: West Publishing Co., 1971), Bk. 1 vii. , " R e p o r t of the Board of Statutory Consolidation"traces the h i s t o r y of the various consolidations up to c o d i f i c a t i o n : 1786 r e v i s i o n (Jones & V a r i c k ) ; Kent & R a d c l i f f Revision, published 1902; Van Ness & Woodworth Revision, published 1803; the revised statutes of 1821 and the new c o n s t i t u t i o n i n f r a , n. 109), culminating, i n the s p e c i a l session of the l e g i s l a t u r e which resulted i n the 3 volume Revised Statutes of 1829, l a t e r edited by various editors i n 9 e d i t i o n s . This Report also deals with the F i e l d Codes, i n f r a n. 1 The s p e c i a l l e g i s l a t i v e session i n New York held 1827-1828 is' discussed i n Carr 67 L.Q.R. (1951) 482; Again Carr emphasizes i t s influence was not f e l t i n England as condi- tions were not comparable, he s a i d "The New York Commissioners, as tha y g r a t e f u l l y recorded were sustained and cheered by the ready cooperation of the L e g i s l a t u r e ; the l e g i s l a t o r s d i d not grudge t h e i r time and were not d i s t r a c t e d by the controversies of party p o l i t i c s ; moreover New York judges were sympathetic and l i b e r a l i n t h e i r acceptance and construction of the new law. 184 111 4 Paige 178, 198-199 (1833) 112 Loc. c i t . 113 (1859) 19 N.Y. 68; (Quia Emptores, 18 Ed. I, (v. Brown, op. c i t . p. 71 n. 71) 114 (1859) 19 N.Y. 68, at pp. 73-5. 115 Brown, op. c i t . , p. 75. 116 Report, McKinney's Statutes, l o c . c i t . , n. 110; Lang, op. c i t . pp. 114ff. , as to F i e l d ' s contribution to American c o d i f i c a t i o n . 117 Brown, op. c i t . pp. 25, 43, 45, 158. 118 I b i d . , p. 158-9, as to English Statutes; 37 Hen. VII c. 9 (usury) 13 E l i z . c.8 (usury) 43 E l i z . c.6 (re prevention) 119 Loc. c i t . , gives quotations. 120 Loc. c i t . , Crawford v. Chapman, 17 O.S. 585, 590 (1885). These t e r r i t o r i e s had been one of the areas of contention between the American colon i s t s and England before the Revolution. The western expansion of the seaboard colonies, even before the Treaty of Peace of 1784, was i n c o n f l i c t with the B r i t i s h c o l o n i a l p o l i c y of u t i l i z - ing the lands for the b e n e f i t of the fur traders from Canada. State i n t e r e s t s were ceded to the United States between 1781 to 1786. I f these lands were not " s e t t l e d " by the B r i t i s h Traders, they were " s e t t l e d " as colonies of the American states of New York, V i r g i n i a , and Connecticut, which states a l l at the time of expansion had some English statutes i n force. Should not the English statutes i n force i n each of the colonies followed them as they became colonists? Cote, op. c i t . , p. 47 re Voortrekkers of South A f r i c a " extension of the t e r r i - tory of the colonies i n which they l i v e " . 121 I b i d . , p. 42-3, 45. 122 4&5 Ed. VII, c.3., 3 16 (Can.), v. Cote, supra (n. 5, p. 19), p. 91. 185 123 Op. c i t . , n. 23, p. 177. 124 Cote, op. c i t . , pp. 84-5. 125 Alberta, Saskatchewan, Manitoba, North West T e r r i t o r i e s and Yukon, v_. Cote, op. c i t . p. 89ff. 126 Supra n. 112, as to common law statutes. 127 Daniels, supra (n. 7 p. 92), p. 329, "An Act to declare how much of the laws of England are p r a c t i c a b l e within the Bahama Islands, and ought to be i n force within the same ", v. Appendix B, i n f r a p. 229. 128 Revised i n 1957, c. 2. Appendix B, VIII ( i i ) , i n f r a p. 231. 129 Roberts-Wray, op. c i t . (n. 4 p. 92), pp. 87, 306. G i b r a l t a r was ceded to B r i t a i n by Treaty of Utrecht i n 1713. A p p l i c a t i o n of English Law Ordinance, 1962, (Ordinance No. 17 of 1962). Sarawak has such a l i s t with power of General Counsel to a l t e r A p p l i c a t i o n of Laws Ordinance, Rev. Laws 1958, c. 2. 130 Roberts-Wray, op. c i t . p. 791. 131 A l i s t of English statutes which did not apply, Statute Law Revision Ordinance (Rev. Laws, 1951, c.3) Interpretation Act, (Rev. Laws, 1951, c. 4.) Park, op. c i t . (n. 75 p. 98), p. 4. 132 Roberts-Wray, op. c i t . , 698; A p p l i c a t i o n of English Law Ordinance, Revised E d i t i o n , 1970, c. 88. 132A Brown, op. c i t . pp. 43, 45, 157ff. 133 8 & 9 E l i z . II c. 55 (Imp.) 134 Law of England (Application). Law, 1959, Revised Laws, 1959, Cap. 60, i n f r a Appendix B, VII. The draftsman was S i r John V e r i t y , formerly Chief J u s t i c e of N i g e r i a . Park, op. c i t . , p. 45, gives Verity's accomplishment i n c o l l e c t i n g the law of the region of Western Nigeria. In 1959 he prepared, i n 7 volumes, the c o l - l e c t e d revised e d i t i o n of a l l statutes i n force i n Western N i g e r i a , (including p r o v i s i o n as to those i n force before, the federal system was introduced). 186 Park also explains: (1) an Exclusive L e g i s l a t i v e l i s t (2) a concurrent l e g i s l a t i v e L i s t ^published as Schedules to the Constitution of the Federation of Ni g e r i a , which Constitution i s the second schedule to Ni g e r i a (Constitut- ion) Order i n Council, 1960 (S.I. 1960/1962; L.N. 159 of 1960). 135 Op. c i t . , p. 41, 51-2 gives two i n t e r e s t i n g examples of laws since the reception date of 1900 which were included: Law Reform (Frustrated Contracts) Act, 1943 was enacted as part of the Contracts Law, Cap. 25, as an example of incorporating also c e r t a i n post-1900 Acts which had reformed and improved the previous law. Customary law as provided for i n many instances, eg. Married Women's Property Act, 1882, was enacted as part of the Married Women's Property Law, cap. 76, with the addi t i o n a l p r o v i s i o n excluding i t s operation from marriages i n accordance with customary law (Note: Marriage i s a federal head, except under customary law). 136 A l l o t t , supra (n. 75 p. 98) p. 53-4. 137 Park, op. c i t , p. 142-3. 138 Roberts-Wray, op. c i t , 794. Mid-Western Region Act, 1962 (No. 6 of 1962). 139 N i g e r i a Independence Act, 1960 (8 & 9 E l i z . II c. 55 (Imp.) Nig e r i a (Constitution) Order i n Council, I960,-v. 134. 140 .Far%y.;bp< .'Sit.,Postscript to Preface, p. v. 141 13 Geo. V. No. 3270, 1922 ( V i c t o r i a ) Proclaimed 25 May 1923; Amended 5722/19 70, 8137/1971. 142 Ink & P e n c i l annotations on Cussen's s p e c i a l l y bound copy of the Imperial Acts Application Act, 1922. transcribed for Mr. Arthur Close, l i s t the following authors'. Hale S i r Matthew Hale. The History of the Common Law of England (1739) Hawkins Pleas of the Crown Vol. I (8th ed. 1824) Holdsworth A History of English Law Vol. I Jenks Digest ) Jenks' Digest of English C i v i l Law Jenks C i v i l Law ) (2nd ed., 1921) 187 P..& M. Pollock and Maitland. A History of English Law (1st ed.) Plucknett Theodore F. T. Plucknett. Statutes and th e i r Interpretation i n the F i r s t Half of the Fourteenth Century (1922) In Evidence he also r e f e r r e d to, Bignold Bignold's Imperial Statutes i n force i n New South Wales This h i s t o r y i s given by Castles, supra (n.24 p.94 ') passlnu The A u s t r a l i a n Courts Act, 1828 (9 Geo. IV. c. 83 (Imp.) the foundation of law for New South Wales, Tasmania, Van Diemen's Land, V i c t o r i a , Queensland, Northern T e r r i t o r y , A u s t r a l i a n C a p i t a l T e r r i t o r y , Papua New Guinea. Castles, op. c i t . , p. 3, no". 12-15 i n c l . : South A u s t r a l i a , o r i g i n a l l y part of New South Wales, but date used i s December 28, 1836, on basis Ordinance No. 2 of 1843 and j u d i c i a l decisions given n. 13; Western A u s t r a l i a was provided with June 1, 1829 as the date that State " s h a l l be deemed to have been established" I n t e r p r e t a t i o n Act, 9 Geo. V No. xx, section 43. "The Reprinted Acts of the Parliament of Western A u s t r a l i a " , volume 6 (1954). W. Harrison Moore, K.B.E., C.M.G., LLD., "A Century of V i c t o r i a n Law, 16 Journal of Comparative L e g i s l a t i o n and International_L.aw (3rd s e r i e s ) 174 at 178, n. 4. "Memorandum for the Honourable The Premier #1597", p. 3 - 4 (Photocopy (undated) i n the C o l l e c t i o n of the Law Reform Commission of B r i t i s h Columbia). V i c t o r i a : Report from the J o i n t Select Committee of the L e g i s l a t i v e Council and L e g i s l a t i v e Assembly on the Imperial Acts A p p l i c a t i o n B i l l , 23 November 1922 (Ordered printed" by the L e g i s l a t i v e Assembly, 28 November, 1922.)(hereafter c a l l e d V i c t o r i a n Report) p. 3. I b i d . , p. 7, Statement of His Honour S i r Leo Cussen to the Committee on the Draft B i l l , p. 11, 11 August 1922. I b i d , p. 4 (Committee Report). Explanatory Paper, p. 75, This paper, in c l u d i n g the Table of some of the repealed enactments (subject to the reference de s c r i p t i o n i n the b i l l ) accompanied the B i l l of 1922 as printed with the Consolidated statute 5722/70. 188 The states do not have the power to repeal proprio vigore l e g i s l a t i o n , Kewley Report, p. 9 ( V i c t o r i a : Report ort The Imperial Acts A p p l i c a t i o n A c t , 1 9 2 2 , by Gretchen Kewley (11 June 19 75) Ordered printed by the L e g i s l a t i v e Assembly c. 3 , 7 0 8 2 / 7 5 ) (hereafter, Kewley Report) p. 9 . discussing New South Wales Report ( i n f r a p. 190 n. 174) and the e f f e c t of Imperial repeals effected by Statute Law (Repeals) Act, 1973-KLimited to England, on V i c t o r i a "... we are l e f t with obsolete Imperial Acts, no longer on the Statute Books at Westminster, but which are nevertheless unrepealable i n t h i s s t a t e . " Examples are given n. (a) p. 3 of Consolidated Act 5 7 2 2 / 7 0 . Federal heads of j u r i s d i c t i o n would be included Note: these are as of date of passing the Act - the State cannot l e g i s l a t e to change and they must be as at that date. I b i d . , n. (b) p. 3i The English Chronological Table and Index of the Statutes, supra n. 1 5 r p. 177 . i s r e f e r r e d to by footnote. I b i d . , n. (a) p. 4 , explains the Imperial Copyright Act of 1 9 1 1 , 1 & 2 Geo. V, c. 46 repeals the Acts of 1734 and 1888 and International Copyright Acts (exc. ss. 7 , 8 of 25 & 26 V i c t . c. 68) i n Dominions from coming in t o operation i n such part. The Commonwealth Act No. 20 of 1912 brought i t i n force i n A u s t r a l i a 1 July 1 9 1 2 . Clause 6: The date, presumably, at which t h e i r force was determined cf. date of coming i n force of Act elsewhere provided. cf. Clause 5 (2) the date here i s the date of the passing of the Act. Explanatory Paper, op. c i t . p. 7 9 . Loc. c i t . Ibid, p. 81 f f . ; The Table begins on p. 8 3 ; _y_. Cuss en. Evidence i n V i c t o r i a n Report, op. c i t . p. 1 6 . "... while the provisions set out i n the B i l l are of importance - of course I consider that i t s e f f e c t i n providing for the repeal of so many, together with the repeal of the sections, i s the most important part of the B i l l - i n a sense i t may be s a i d that the most important part of the B i l l i s what i s not there. That i s to say the exclusion of a l l those enactments, many of which --the more important of which - are set out i n the table at the end of the Explanatory Paper, which i s the great thing that the B i l l has accomplished." 189 159 No. 3270 was amended 5722/70 and 8137/71. Other consolidation and repeal was effected i n the various 1928 Statutes l i s t e d . This was contemplated i n the V i c t o r i a n Report, op. c i t . , p. 4 - 5. 160 Loc. c i t . contemplated these con s o l i d a t i o n s . e f f e c t e d i n groupings. 161 Gretchen Kewley, Report on The Imperial Acts A p p l i c a t i o n Act 1922 (c. 3, 7082/75) dated 11 June 1975, p. 117, explains why these sections have survived. 162 Loc. c i t . , Introduction, p. 7 f f . 163 Ibi d . 164 Ibi d , p. 8. 165 I b i d , p. 7 166 The schedules to the report are an index of recommendations, r e l a t i n g back to the page where the a u t h o r i t i e s are d i s - cussed. The Table of Contents i s arranged on the basis of groupings of statutes i n alphabetical order, by.subject matter. 167 Kewley Report, op. c i t . 117. 168 Op. C i t . . This information i s taken from p. 117 and the Schedules p. 121, 122. 169 Op. c i t . , l i s t p. 9 . 170 Report of the Law Reform Commission of New South Wales on the Ap p l i c a t i o n of Imperial Acts i n New South Wales (L.R.C. 4) November, 1967; p. 25. 171 Loc. c i t . 172 Op. c i t . , p. 28, c f . M i t c h e l l v. Scales 5 C.L.R. 405, "the view was expressed that i n considering whether an Imperial Act was introduced i n t o New South Wales by 9 Geo. IV. c. 83, regard must be had to s u i t a b i l i t y of the Imperial Act as a whole to l o c a l conditions." 173 Loc. c i t . 190 173A 174 175 176 177 178 179 180 181 182 183 Appendix IV New South Wales. Report of 1967, was enacted as Imperial Acts A p p l i c a t i o n Act 1969 (N.S.W.). Report of the Law Reform Commission on the A p p l i c a t i o n of Imperial Acts (L.R.C. 4) November, 1967 (hereafter NSW Report), Appendix I (A) p. 39ff; Appendix IV, d r a f t B i l l , Part I I I , s. 5(3), Part I I I s. 12-42, p. 147ff., as l i s t e d i n the F i r s t Schedule p. 163. NSW Report, Appendix I B, enactments to be continued, p. 59ff; Appendix IV, d r a f t B i l l , s. 6.' NSW Report, Appendix IV, draft B i l l , s. 7 some of which are l i s t e d i n the Third Schedule, set out i n f r a , P« ]_66. as explained i n Appendix I I I , p. 136 (from which page the explanation i s taken), a s i m i l a r explanation i s given i n the Report pp. 30, 31. Op. c i t . , Appendix IV, d r a f t B i l l , p. 166. These are out- side the j u r i s d i c t i o n of the State and are.not dealt with i n th i s way by the V i c t o r i a n Statute. Op. c i t . , Appendix IV d r a f t B i l l , p. 145. Imperial Acts proposed for repeal are explained i n Appendix I I , p. 70. Op. c i t . , p. 28. Alexander O l i v e r , parliamentary draftsman of New South Wales, "The Statute Index" prepared by him i n 1874. Ibid ., p. 31. Ibid ., p. 32. Ibid . , pp. 33, 34. The Westbury Savings have been previously mentioned i n respect of Imperial Statute Law Revision, supra p. 121. As to Clause 11, this p r o v i s i o n i n the V i c t o r i a n L e g i s l a t i o n has not been used. Law Reform Commission of the A u s t r a l i a n C a p i t a l T e r r i t o r y ; Report on Imperial Acts i n force i n the A u s t r a l i a n C a p i t a l T e r r i t o r y and Supplementary Report (Canberra: A u s t r a l i a n Government Publishing Service, 1973), p. 1 and quotations on p. 1-2. (A.C.T. Report dated 25 August 1972, A.C.T. Supplementary Report dated 24 January 1973). 191 184 . Op. c i t - , p. 2. The following authority i s given as to the powers of the Commonwealth Parliament (the words omitted i n the quotation) "...Go-operative Committee on Japanese Canadians v. A.-G. for Canada [1947] A.C. 87 at pp. 106-107, and has been treated as the law by the Governor-General i n Council as the l e g i s l a t i v e authority for the A u s t r a l i a n C a p i t a l T e r r i t o r y (e.g. L o t t e r i e s Ordinance 1964, s. 3(2)) " 185 186 191 L o c ^ _ c i t . Canada would need a s i m i l a r p r o v i s i o n , assuming the present c o n s t i t u t i o n a l arrangements remain. (1934) 52 C.L.R. 268; the quotation i s given i n A.C T Report, op. c i t . , p. 3. " ~ 187 Loc. c i t . This i s an i n t e r e s t i n g comparison with the B r i t i s h Columbia enactment of s u b s t a n t i a l l y the Divorce and Matrimonial Causes Act of 1857 as amended 1858, discussed supra, p.78. 188 I b i d . , p. 57. These are an appraisal of the effectiveness of the N.S.W. l e g i s l a t i o n upon which the A.C.T. Report r e l i e s greatly and a l i s t of suggested "Substituted P r o v i s - ions". Page 189 A.C.T. Appendix 1 Part A, Acts to be Report Preserved 3, 7 Second Schedule p. 60 Part B, Acts to be repealed and replaced 4, 12, 58ff "Substituted Provisions" F i r s t Schedule p. 60 Supplementary Report p. 75-6 190 Appendix 2 Acts to be repealed 4, 24 Referred to by Kewley i n her report reviewing the V i c t o r i a n l e g i s l a t i o n . The area has a complicated h i s t o r y , v.• i n f r a n. 35, p. 95 As to t r a d i t i o n a l law, v. Michelle Potter, T r a d i t i o n a l Law i n Papua New Guinea. An Annotated and Selected Bibliography. (Canberra: Department of Law Research, School of S o c i a l Sciences, A u s t r a l i a n National U n i v e r s i t y , 1973) 192 Conclusion VII CAN THE IMPACT OF ENGLISH LAW BE ASSESSED? What law i s i n force i n B r i t i s h Columbia today? Although everyone i s not presumed to know what the law i s , i t i s a w e l l established p r i n c i p l e of law that ignorance i of the law w i l l not excuse i t s breach. The law i n force i n B r i t i s h Columbia today includes, (i ) the law i n the Revised Statutes of B r i t i s h Columbia, incl u d i n g much adopted and copied from English Law; ( i i ) f ederal l e g i s l a t i o n which came on Union, under the heads of j u r i s d i c t i o n assigned to the fede r a l authority by the B r i t i s h North America Act, 1867, and that enacted since Union; ( i i i ) so far as i t i s not inconsistent with (i) and ( i i ) , "The C i v i l and Criminal Laws of England, as the same existed on the nineteenth day of November, 1858, and so far as the same are not from l o c a l circumstances i n a p p l i c a b l e , are i n force i n a l l parts of the Province; but the sa i d laws s h a l l be held to be modified and alt e r e d by a l l l e g i s l a t i o n having the force of law i n the Province, or i n any former Colony comprised within the s a i d geograph- i c a l l i m i t s thereof." (iv) the law of the former colonies of Vancouver Island and B r i t i s h Columbia, including both (a) statutes enacted by each j u r i s d i c t i o n as to that part, and (b) the common law which came with the s e t t l e r s , including English statutes i n force as part of the common law; (v) l e g i s l a t i o n i n force proprio vigore i n B r i t i s h Columbia and Canada, and not modified by either l e g i s l a t i v e authority, within i t s appropriate j u r i s d i c t i o n , since the Statute of Westminster, 1931. 193 This thesis has examined, p r i m a r i l y , the meaning of ( i i i ) , the seemingly simple statement of the English Law Act. This enactment provided a foundation for the growth of c o l o n i a l law i n B r i t i s h Columbia, but has not provided a f i n i t e n e s s as to what the law of B r i t i s h Columbia i s . Such a provision i s i n keeping with the great t r a d i t i o n of f l e x i b i l i t y i n the common law, but i s not n e c e s s a r i l y a s a t i s f a c t o r y provision. It' i s important to r e a l i z e that determining what English law was received i s a modern l e g a l problem, a f f e c t i n g the rights of the various l e v e l s of government i n Canada and t h e i r powers, and the rights of Canadian c i t i z e n s and residents who are subject to the law. The review of l e g i s l a t i v e h i s t o r y and of the h i s t o r y and j u d i c i a l i n t e r p r e t a t i o n of l e g i s l a t i o n which forms the basis for j u d i c i a l decisions r e l a t i v e to reception, raises the suggest- ion that this question i s of i n t e r e s t only to h i s t o r i a n s . Such i s not the case. Surely i t i s the duty of the l e g i s l a t u r e to provide a more d e f i n i t i v e and workable statement as to what the law i s . L e g i s l a t i v e r e v i s i o n i s a s u b s t a n t i a l matter i n cost and i n e f f e c t . The English have been a c t i v e l y pursuing reform of the statutes for over a century i n a period that i s almost i d e n t i c a l with the existence of the Province of B r i t i s h Columbia. Their e f f o r t s began with the r e v i s i o n of the statute book fn 1865, and the associated indexing, consolidation of Acts and the erasure of "sleeping statutes", from the statute book. C o l o n i a l j u r i s - d i c t i o n s have undertaken great reform. I t i s the conclusion of t h i s thesis that l e g i s l a t i v e reform i s the appropriate course f o r B r i t i s h Columbia. A l l of these matters have been described as they r e l a t e to the i d e n t i f i c a t i o n of the body of applicable law. Lord Cranworth said i n 1858, "Nothing i s more d i f f i c u l t than to know which of our laws i s to be regarded as imported into our colonies .... Who i s to decide whether-they are adapted or not?" This statement leads us to three p r i n c i p a l issues of reception: 1. Which English Laws were imported? 2. Are they to be adapted to the c o l o n i a l s i t u a t i o n ? 3. Who i s to decide? Superimposed on the many complexities of these questions, there i s the further problem of mountains of l e g i s l a t i o n enacted i n both B r i t i s h Columbia and Canada, complicating the law i n force. 1. Which English Laws were imported? This thesis has not attempted to l i s t every case or every reform accomplished i n other j u r i s d i c t i o n s . Those r e f e r - red to have been chosen, f i r s t , , to i l l u s t r a t e problems i n the d e f i n i t i o n and acertainment of which English statutes and law are i n force and, second, to i l l u s t r a t e , from the work of other j u r i s d i c t i o n s , the methods or combinations of methods, which are 195 a v a i l a b l e . Primarily the emphasis i s on statute law. This does not mean what was omitted was not important, but only that what was selected seemed more relevant. 2. Are they to be adapted to the c o l o n i a l s i t u a t i o n ? Preliminary to reform, i t would be necessary to determine: (a) Which statutes are i n force i n England; and (b) Which Ordinances were i n force i n Vancouver Island as at the reception date, 19 November, 1858; To f a c i l i t a t e such a determination, statements must be made as to established parameters, to provide a frame of reference. Decisions must also be made on the issues which have been i s o l a t e d , but are not decided. Such statments w i l l be i n the form of the New South Wales statement as to the "Westbury Savings" and that of A u s t r a l i a n C a p i t a l T e r r i t o r y statement as to the doctrine of implied repeal. These should r e l a t e to a decision as to the relevance of s e t t l e r ' s law; 'and a. s i m i l a r decision as to the date at which l o c a l circumstances w i l l be considered. This should be related to the numerous changes made i n the English Law Act, and the e f f e c t of j u d i c i a l i n t e r p r e t a t i o n - there on. This material would y i e l d a l i s t to be coordinated with the many l i s t s a v a i l a b l e to provide an annotated l i s t . 196 The annotated l i s t would then be considered i n terms of, (i) statutes passed i n B r i t i s h Columbia a f t e r 1858, and before Union, and ( i i ) statutes passed i n Vancouver Island before Union, with B r i t i s h Columbia, and ( i i i ) with j u d i c i a l decisions, to e s t a b l i s h the law as at Union with Canada from which time the Federal l e g i s l a t i v e heads must be considered separately i n that they l i m i t pro tanto the \ l e g i s l a t i v e powers of B r i t i s h Columbia. The 1911 Revision of the B r i t i s h Columbia Statutes must be next considered. F i r s t , the consolidated l i s t s provided i n R.S.B.C. i?97 an§ x191lT m u s t be checked with the statute book for accuracy.Thes.ethen should be co-ordinated with the annotated l i s t and the Federal material, and the consolidated material removed. A l i s t of proprio vigore statutes should be made up to 1931, and any subsequent repeals noted. These l i s t s would provide a basis for reform. They are presumably what the Alberta l i s t w i l l be and can be c r o s s - r e f e r - enced to the Alberta materials and to l i s t i n g s i n other j u r i s d i c t i o n s . What areas would reform include? At least these p o s s i b i l i t i e s can be considered: (a) a review of the 1911 l e g i s l a t i o n and of the consolidation ef f e c t e d with an appraisal of the work done at that time; r 19 7 (b) a preliminary determination as to what statutes are i n force i n England i n 1858, and may be i n force i n B r i t i s h Columbia, without considering subsequent l o c a l l e g i s l a t i o n .or perhaps considering i t only up to 1911. (c) an i n v e s t i g a t i o n of l e g i s l a t i o n i n force proprio vigore i n B r i t i s h Columbia, perhaps i n c l u d i n g those i n force and r e l a t i n g to f e d e r a l heads o f ' j u r i s d i c t i o n ; (d) a f u l l reform. 3. Who i s to decide? Is there j u s t i f i c a t i o n for l e g i s l a t i v e revision? In B r i t i s h Columbia the many problems which stimulate l e g i s l a t i v e i n t e r e s t have not been present. Native and customary law have not intruded to create a need to provide p l u r a l i s m i n the law. The native population was t r i b a l , without w r i t t e n laws. B r i t i s h Columbia, l i k e other s i m i l a r j u r i s d i c t i o n s , arrived at a s o l u t i o n for the protection of the native peoples by l e g i s l a t i v e p r o v i s i o n without making great concessions. * Nationalism, which has ; provided•• the?'Impetus for r e s o l u t i o n of the problem i n A f r i c a , has not done so here. Probably, most d e c i s i v e l y , we have never had a Boothby, J . who took a p o s i t i o n so strongly that he created a reform movement that culminated i n the C o l o n i a l Laws V a l i d i t y Act, 1865. Our J u d i c i a r y have taken a most progressive approach to the problem, giving care i n considering the issue to be 198 decided and often providing the research for this aspect of the law. The problem i s neither new nor unique to B r i t i s h Columbia ^ C o n s i d e r i n g r e p a t r i a t i o n of the c o n s t i t u t i o n i s not new. •$&9Spi!rf'9& sK&fftK1? would seem to be a p r a c t i c a l preliminary matter. The courts handle the ^sVu'es o n a n ad hoc b a s i s . However, i f the law i s to be regarded as always speaking, i t does so at the cost of f i n a l i t y being established on an issue ,even a f t e r j u d i c i a l decision. Although the l e g a l t r a d i t i o n may be merely regarded as a mosaic of i s o l a t e d events, with j u d i c i a l ingenuity making the whole f u n c t i o n ^ ,.it- must be remembered that j u d i c i a l ingenuity i s c a l l e d into operation only when the issue a r i s e s , and i n . t h e r e a r l y c o l o n i a l period often was r e l a t e d only to adapting English Law to the c o l o n i a l s i t u a t i o n . What form would reform i n B r i t i s h Columbia take? F i r s t , a l i s t i n g . Thereafter, the various reforms effected i n other j u r i s d i c t i o n s could be considered. This sort of reform i s not p o l i t i c a l l y expedient, and unless attention i s paid to the various aspects of the reception matter, i t i s generally regarded as a p a r t i c u l a r l y academic f i e l d of law. I t i s however an important and worthwhile f i e l d of research. Is i t a problem that can be conveniently forgotten, but exploring i t s ramifications c e r t a i n l y indicates that the repeal of the English Law Act 199 s i m p l i c i t e r i s not a s a t i s f a c t o r y s o l u t i o n . I f l e g i s l a t i v e reform i s not undertaken i t may be p r a c t i c a l to at l e a s t formulate rules to determine what English law i s a c t u a l l y i n force i n B r i t i s h Columbia, (1) i n the absence of statutory p r o v i s i o n , English j u d i c i a l decisions w i l l be looked at to a s c e r t a i n the common law. I t would appear that•the reception date i s not n e c e s s a r i l y a cut-off date; (2) English Statutes i n force would be determined at 19 November 1858; . (3) subsequent l e g i s l a t i o n i n force would be determined whether enacted by B r i t i s h Columbia, Canada or the Imperial Parliament, provided the j u r i s d i c t i o n i s appropriate; (4) relevant j u d i c i a l decisions would be considered, and (5) l o c a l conditions at the date the issue arose. Such rules y i e l d an answer of no certainty but merely a "best opinion". J u d i c i a l decisions are the end product of such a best opinion, f i t t e d into the o v e r a l l f a b r i c of l e g a l rules but always based on a malfunction and not providing an a l l i n c l u s i v e s t a t e - ment. J u d i c i a l decision i s based on Parliamentary law. Parliament has not a s i m i l a r o b l i g a t i o n to integrate l e g i s l a - t i o n into the e x i s t i n g l e g i s l a t i o n and the volume of enacted 200 l e g i s l a t i o n grows. Cussen s a i d that what was achieved i n h i s l e g i s l a t i o n was what was l e f t out. Reduction i n the volume of- law which may be. applicable i s i n i t s e l f an accomplishment had nothing else' been done. Law Reform Commissions have joined academics i n s t r e s s i n g the need for reform. The subject i s i n - cluded i n the F i r s t Programme of the Law Reform Commission of B r i t i s h Columbia. The Commission i n i t s Second Report has expressed the opinion that remedial l e g i s l a t i o n should be enacted. 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Table above.referred to i n d i c a t i n g some of the repealed enactments, p. 83, consolidation, 5722/70. . AMENDED, 8137/4 May, 1971. 3999/71. V i c t o r i a , A u s t r a l i a . L e g i s l a t i v e Assembly. Report on the Imperial Acts A p p l i c a t i o n Act 1922, by Gretchen Kewley, 11 June, 1975. Ordered by the L e g i s l a t i v e Assembly to be printed, 1974-1975, C H. Rixon, Government P r i n t e r , Melbourne. C.3. 7082/75. Progress Report, December, 1973 (unpublished); Draft Report, 15 August, 1974 (unpublished). 209 A P P E N D I X A The evolution of the E n g l i s h Law Act, R.S.B.C. I960, c. 129, s. 2. p. 1* P R O C L A M A T I O N having the F o r c e of Law to d e c l a r e that E n g l i s h Law is in f o r c e in B r i t i s h Columbia, 19 November, 1858, B r i t i s h C o l u m b i a Ordinances 1858-1866, p. 13 "... that the C i v i l and C r i m i n a l Laws of England, as the same existed at the date of the said P r o c l a m - ation of the said Act, and so far as they a r e not, f r o m l o c a l c i r c u m s t a n c e s , inapplicable to the Colony of B r i t i s h Columbia, A R E A N D W I L L R E M A I N IN F U L L F O R C E within the said Colony, t i l l such times as they s h a l l be a l t e r e d by H e r said M a j e s t y in H e r P r i v y C o u n c i l , or by me, the said Governor, or by such other L e g i s l a t i v e A u t h o r i t y as may here- after be l e g a l l y constituted in the said Colony; and that such Laws sh a l l be a d m i n i s t e r e d and enforced by a l l proper authorities against a l l persons c l a i m i n g protection of the same Laws. " 30 V i c t . : E n g l i s h Law Ordinance, 1867, 6 March, 1867. No. 7 (1867); printed No. 70 The Laws of B r i t i s h Colum- bia, 1871; C.S.B.C. 1877, c. 103, p. 384 (Consecutive No. 266) "Whereas it is expedient to a s s i m i l a t e the Law estab l i s h i n g the date of the app l i c a t i o n of E n g l i s h Law to a l l parts of the Colony of B r i t i s h Columbia: 2. F r o m and after the passing of this Ordinance, the c i v i l and c r i m i n a l laws of England, as the same existed on the 19th day of November, 1858, and so far as the same a r e not f r o m l o c a l c i r c u m s t a n c e s inapplicable, A R E AND S H A L L B E IN F O R C E in a l l parts of the Colony of B r i t i s h Columbia: Provided, however, that in applying this Ordinance to that part of the Colony previous to the union known as B r i t i s h Columbia, the said c i v i l and c r i m i n a l laws as the same existed at the date a f o r e s a i d s h a l l *The B l o c k capitals in the verb f o r m of the statutes of this section have been added for convenience and do not appear in the text. 210 be held to be modified and a l t e r e d by a l l past l e g i s - lation (of the said Colony of B r i t i s h C o l u m b i a before the Union, and of the Colony of B r i t i s h C o l u m b i a since the Union) affecting the said Colony of B r i t i s h C o l u m b i a as it existed before the Union. (iii) A n A c t r e s p e c t i n g the R e v i s e d Statutes of Canada, 49 V i c t , c. 4 (Can. ) Assented to 2 June 1886, s. 5(2) r e p e a l s enactments in Schedule A Schedule A, p. 19 "Acts and P a r t s of A c t s Repealed, f r o m the coming into f o r c e of the R e v i s e d Statutes of Canada, so f a r as the said A c t s and parts of A c t s relate to matters within the l e g i s l a t i v e authority of the P a r l i a m e n t of Canada . . . Laws of the separate colony of B r i t i s h C o l u m b i a . . . 70 A n Ordinance to a s s i m i l a t e the g e n e r a l a p p l i c a t i o n of E n g l i s h Law" Extent of Repeal "s. 2 so far as it r e l a t e s to the C r i m i n a l Law and sections 1 & 3. " s. 6 provides: "The r e p e a l of the said A c t s and parts of A c t s s h a l l not r e v i v e any A c t or p r o v i s i o n of law repealed by them; nor s h a l l the said r e p e a l prevent the effect of any saving clause i n the said A c t s and parts of Acts, or the app l i c a t i o n of any of the said A c t s or parts of Acts, or of any A c t or p r o v i s i o n of law f o r m e r l y in fo r c e , to any trans- action, matter or thing a n t e r i o r to the said repeal, to which they would otherwise apply. " (iv) E n g l i s h Law Act, Consolidated Acts, 1888, c. 69 s. 2; R. S. B. C. 1897 c. 115 s. 2: "The C i v i l L aws of England, as the same existed on the 19th day of November, 1858, and so fa r as the same are not f r o m l o c a l c i r c u m s t a n c e s inapplicable, S H A L L B E IN F O R C E in a l l parts of B r i t i s h Columbia: Pr o v i d e d , however, that the said Laws s h a l l be held to be mod i f i e d and a l t e r e d by a l l l e g i s l a t i o n s t i l l having the f o r c e of law, of the 211 P r o v i n c e of B r i t i s h C olumbia or of any f o r m e r Colony c o m p r i s e d within the geographical l i m i t s thereof. " (v) E n g l i s h Law Act, R.S.B.C. 1911, c. 75, s. 2: "The C i v i l and C r i m i n a l Laws of England, as the same existed on the nineteenth day of November, 1858, and so far as the same a r e not f r o m l o c a l c i r c u m s t a n c e s inapplicable, S H A L L B E IN F O R C E in a l l parts of the P r o v i n c e of B r i t i s h Columbia: Provided, however, that the said laws s h a l l be held to be modified and a l t e r e d by a l l l e g i s l a t i o n having the f o r c e of law in the P r o v i n c e of B r i t i s h Columbia, or in any f o r m e r Colony c o m p r i s e d within the said geographical l i m i t s thereof. " - this v e r b f o r m is repeated in the 1924, 1936 and 1948 R e v i s i o n of the Statutes. (vi) E n g l i s h Law Act, R.S.B.C. I960, c. 129, s. 2: "The C i v i l and C r i m i n a l Laws of England, as the same existed on the nineteenth day of November, 1858, and so f a r as the same are not f r o m l o c a l c i r c u m s t a n c e s inapplicable, A R E IN F O R C E in a l l parts of the P r o v i n c e ; but the said laws sh a l l be held to be modified and a l t e r e d by a l l l e g i s l a t i o n having the f o r c e of law in the P r o v i n c e , or in any f o r m e r Colony c o m p r i s e d within the said geograph- i c a l l i m i t s thereof. " (vii) A s to the Stickeen t e r r i t o r i e s see p r o v i s i o n for E n g l i s h Law: 25 V i c t . : O r d e r i n C o u n c i l 19 J u l y 1862 (Imp. ) P r i n t e d R.S.B.C. 1911, vo l . IV (1913), p. 254ff and at p. 189 of Appendix, 1871 Statutes: ". . . And it is f u r t h e r o r d e r e d that the law in force in the said t e r r i t o r i e s s h a l l be the law of England as it existed on the 1st day of January, 1862, so far as the same is applicable to the c i r c u m s t a n c e s of those t e r r i t o r i e s . " 212 The boundaries of the P r o v i n c e of B r i t i s h C o l u m b i a (a) Vancouver Island ( f o r m e r l y Vancouver's Island) 12 V i c t . : L e t t e r s Patent, Vancouver Island, 1849. (13 January 1849). P r i n t e d R.S.B.C. 1911, vol. IV (1913), p. 107ff. "And whereas by a treaty between O u r s e l v e s and the United States of A m e r i c a , f o r the settlement of the Oregon Boundary, ... it was agreed upon and concluded . . . That f r o m the point of the for t y - n i n t h p a r a l l e l of north latitude where the boundary l a i d down in existing t r e a t i e s . . . term- inated, the line of boundary between Our t e r r i t o r - ies and those of the United States should be contin- ued westward along the said p a r a l l e l of north latitude to the middle of the channel which separ- ates the continent f r o m Vancouver Island, and thence southerly through the middle of the said channel and of De Fuca's St r a i t s to the P a c i f i c Ocean: Provided, however, that the navigation of the whole of the said channel and s t r a i t s south of the fo r t y - n i n t h p a r a l l e l of north latitude should r e m a i n f r e e and open to both p a r t i e s : . . . We ... do by these presents, . . . give, grant, and c o n f i r m unto the said G o vernor and Company of A d v e n t u r e r s of England trading into Hudson's Bay, and their s u c c e s s o r s , a l l that the said Island c a l l e d Vancouver Island, together with a l l r o y a l t i e s of the seas upon these coasts within the l i m i t s a f o r e s a i d , and a l l mines r o y a l thereto belonging . . . " An A c t to provide for the A d m i n i s t r a t i o n of J u s t i c e in Vancouver's Island, 12 & 13 V i c t . c. 48. (28 J u l y 1849). P r i n t e d R. S.B. C. 1911, vol. IV (1913), p. 115ff. " 4. And be it enacted, That a l l such Islands adjacent to Vancouver's Island or to the Western Coast of No r t h A m e r i c a , and f o r m i n g P a r t of the Dominions of H e r Majesty, as a r e to the South- ward of the F i f t y - s e c o n d Degree of N o r t h Latitude, sh a l l be deemed P a r t of Vancouver's Island for the 213 P u r p o s e s of this Act. " (b) B r i t i s h C o l u m b i a (the o r i g i n a l mainland colony) A n A c t to provide for the Government of B r i t i s h Columbia, 21 & 22 V i c t . c. 99. (2 August 1858). P r i n t e d R.S.B.C. 1911, v o l . IV (1913), p. 245ff. " 1. B r i t i s h C o l u m b i a shall, f o r the P u r p o s e s of this Act, be held to c o m p r i s e a l l such T e r r i t o r i e s within the Dominions of H e r M a j e s t y as a r e bounded to the South by the F r o n t i e r of the United States of A m e r i c a , to the E a s t by the m a i n C h a i n of the Rocky Mountains, to the No r t h by Simpson's R i v e r and the F i n l a y B r a n c h of the Peace R i v e r , and to the West by the P a c i f i c Ocean, and s h a l l include Queen Charlotte's Island, and a l l other Islands adjacent to the said T e r r i t o r i e s , except as here i n - after excepted. 6. No P a r t of the Colony of Vancouver's Island, as at present established, s h a l l be c o m p r i s e d within B r i t i s h C o l u m b i a for the Pur p o s e of this A c t j . . . . Section 6 continues with p r o v i s i o n ". . . to annex the said Island to B r i t i s h Columbia, subject to such Conditions . . . . " B r i t i s h C olumbia boundaries redefined i n 1863: An A c t to define the Boundaries of the Colony of B r i t i s h Columbia, and to continue an A c t to provide for the Government of the said Colony, 26 &: 27 V i c t . c. 83 (28th July, 1863). P r i n t e d R.S.B.C. 1911, v o l . IV (1913), p. 266-267. " 3. B r i t i s h C olumbia s h a l l . . . be held to com- p r i s e a l l such T e r r i t o r i e s within the Dominions of H e r M a j e s t y as a r e bounded to the South by the T e r r i t o r i e s of the United States of A m e r i c a , to the West by the P a c i f i c Ocean and the F r o n t i e r of the R u s s i a n T e r r i t o r i e s i n No r t h A m e r i c a , to the N o r t h by the Sixtieth P a r a l l e l of N o r t h Latitude, 214 and to the East, f r o m the Boundary of the United States Northwards, by the Rocky Mountains and the One hundred and twentieth M e r i d i a n of West Long- itude, and s h a l l include Queen Charlotte's Island and a l l other Islands adjacent to the said T e r r i t o r - ies, except Vancouver's Island and the Islands adjac- ent thereto. " (c) Stickeen t e r r i t o r i e s had been defined in 1862: 25 V i c t . : O r d e r in Co u n c i l , 19th J u l y 1862. Supra Appendix A 1 (vii) ". . . And whereas it is n e c e s s a r y to provide for the government of c e r t a i n t e r r i t o r i e s adjacent to our colony of B r i t i s h Columbia, but not being with- in the j u r i s d i c t i o n of the L e g i s l a t i v e authority of any of H e r Majesty's p o s s e s s i o n s abroad, h e r e i n - after c a l l e d the Stickeen t e r r i t o r i e s . H e r Majesty, ... is pleased to order, . . . and it is hereby o r d e r e d accordingly, that the said Stickeen t e r r i t o r i e s s h a l l c o m p r i s e so much of the dominions of H e r Ma j e s t y as a r e bounded to the west and south-west by the f r o n t i e r of R u s s i a n A m e r i c a , to the south and south-east by the bound- a r y of B r i t i s h Columbia, to the east by the 125th m e r i d i a n of west longitude, and to the north by the 62nd p a r a l l e l of north latitude . . . . " (d) The United Colony of B r i t i s h C olumbia was provided for: The B r i t i s h C o l u m b i a Act, 1866, 29 & 30 V i c t . c. 67. (6 August 1866). P r i n t e d R. S.B. C. 1911, vol. IV (1913), p. 271-273. " 7. U n t i l the Union B r i t i s h C o l u m b i a s h a l l com- p r i s e a l l such T e r r i t o r i e s within the Dominions of Her M a j e s t y as a r e bounded to the South by the T e r r i t o r i e s of the United States of A m e r i c a , to the West by the P a c i f i c Ocean and the F r o n t i e r of the R u s s i a n T e r r i t o r i e s in No r t h A m e r i c a , to the Nor t h by the Sixtieth P a r a l l e l of No r t h Latitude, and to the E a s t f r o m the Boundary of the United 215 States Northwards by the Rocky Mountains and the One hundred and twentieth M e r i d i a n of West Long- itude; and s h a l l include Queen Charlotte's Island and a l l other Islands adjacent to the said T e r r i t o r - ies, except Vancouver Island and the Islands adjacent thereto. 8. A f t e r the Union B r i t i s h C olumbia s h a l l com- p r i s e a l l the T e r r i t o r i e s and Islands a f o r e s a i d and Vancouver Island and the Islands adjacent thereto . . . ." P r o v i s i o n f o r the a d m i n i s t r a t i o n of J u s t i c e (a) Vancouver Island ( f o r m e r l y Vancouver's Island) An A c t for extending the J u r i s d i c t i o n of the C o u r t s of J u s t i c e in the P r o v i n c e s of L o w e r and Upper Canada to the T r i a l and Punishment of P e r s o n s guilty of C r i m e s and Offences within c e r t a i n P a r t s of N o r t h A m e r i c a adjoining to the said P r o v i n c e s , 43 Geo. I l l , c. 138. (Imp.) 180 3, and A n A c t for the regulating the F u r Trade, and e s t a b l i s h - ing a C r i m i n a l and C i v i l J u r i s d i c t i o n , within c e r t a i n P a r t s of North A m e r i c a , 1 & 2 George IV, c. 66 (Imp. ) 1821, provided inter a l i a that the j u r i s d i c t i o n of the C o u r t s of Upper and L o w e r Canada should extend over B r i t i s h fur t e r r i t o r i e s . A n A c t to provide for the A d m i n i s t r a t i o n of J u s t i c e in Vancouver' s Island, 12 & 13 V i c t . c. 48 (Imp.) 28 J u l y 1849, Supra Appendix A, II (ii) ". . . Be it therefore enacted . . . That f r o m and after the P r o c l a m a t i o n of this A c t in Vancouver's Island the said A c t of the F o r t y - t h i r d Y e a r of K i n g George the T h i r d , and the said r e c i t e d P r o v i s i o n s of the Second Y e a r of K i n g George the F o u r t h . . . s h a l l cease to have F o r c e in and to be applicable to Vancouver's Island a f o r e s a i d ; and 216 it s h a l l be lawful f or H e r M a j e s t y f r o m T i m e to T i m e ... to make P r o v i s i o n for the A d m i n i s t r a t i o n of J u s t i c e in the said Island, and for that P u r p o s e to constitute such C o u r t or C o u r t s of R e c o r d and other Courts, with such J u r i s d i c t i o n in M a t t e r s C i v i l and C r i m i n a l , and such equitable and e c c l e s - i a s t i c a l J u r i s d i c t i o n , subject to such L i m i t a t i o n s and R e s t r i c t i o n s , and to appoint and remove, or provide for the Appointment and R e m o v a l of such Judges . . . 2. P r o v i d e d always, . . . That when ... a l o c a l L e g i s l a t u r e has been established in Vancouver's Island it s h a l l be lawful f or such L e g i s l a t u r e , . . . by any Law or Ordinance ... to make such A l t e r a t i o n s as to such L e g i s l a t u r e may seem meet in the Constitution or J u r i s d i c t i o n of the C o u r t s which may be established . . . and . . . for and concerning the A d m i n i s t r a t i o n of J u s t i c e in the said Island. 3. P r o v i d e d . . . That a l l Judgments given in any C i v i l Suit in the said Island s h a l l be subject to Appeal to H e r Ma j e s t y in C o u n c i l . . . . " Supreme C o u r t of C i v i l J u s t i c e c r e a t e d December 2, 1853, Minutes of the C o u n c i l of Vancouver Island, 1851-1861, is r e f e r r e d t o b y F a r r , op. cit . (n. 21 p. 21), p. 3 n. 9a: A r c h i v e s of B r i t i s h Columbia, M e m o i r No. 11, 18 (1918). (b) B r i t i s h C o l u m b i a Pursuant to the Autho r i t y of 21 & 22 V i c t o r i a , c. 99 (Imp. ), supra, Appendix A II (iii) G o vernor Douglas P r o c l a i m e d on 8 June, 1859, P r i n t e d 1877 C. S.B.C. c. 51 (Consecutive No. 141, R. S. 1871, No. 28): ". . . And whereas it is expedient to d e c l a r e the constitution of the C o u r t of J u s t i c e of B r i t i s h 217 Columbia, and to make p r o v i s i o n s with r e g a r d thereto: Now, therefore, I, the said J a m es Douglas, Governor of B r i t i s h Columbia, do hereby, by v i r - tue of the a f o r e s a i d authority and of every other authority enabling me in its behalf, enact and pro- c l a i m as follows, v i z : - 1. The C o u r t held before the said Matthew B a i l l i e Begbie, and his s u c c e s s o r s in office, s h a l l be ca l l e d and known as "The Supreme C o u r t of C i v i l J u s t i c e of B r i t i s h Columbia. " 2. The said Matthew B a i l l i e Begbie, s h a l l be the Judge the r e i n during H e r Majesty's pleasure. 3. The said C o u r t s h a l l be a C o u r t of R e c o r d by the name or style of "The Supreme C o u r t of C i v i l J u s t i c e of B r i t i s h Columbia. " 5. The said Supreme C o u r t of C i v i l J u s t i c e of B r i t i s h C o l u m b i a sh a l l have complete cognizance of a l l pleas, whatsoever, and s h a l l have j u r i s d i c t - ion in a l l cases, c i v i l as w e l l as c r i m i n a l , a r i s i n g within the said Colony of B r i t i s h Columbia. " (c) Stickeen t e r r i t o r i e s 25 V i c t . : O r d e r in Co u n c i l , 19th J u l y 1862. Supra, Appendix A I (vii) ". . . And it is o r d e r e d that the supreme court of c i v i l j u s t i c e in B r i t i s h C o l u m b i a s h a l l and may take cognizance of a l l or any suits, . . . which may a r i s e in r e s p e c t of any act or matter o c c u r r i n g within the said t e r r i t o r i e s , and . . . And it is furt h e r o r d e r e d that the judge of the said supreme court may make gen e r a l r u l e s of court to regulate the proceedings of any justice of the peace or o f f i c e r of court appointed under authority of this O r d e r in C o u n c i l . . . . " 218 (d) The United Colony of B r i t i s h C olumbia (vii) C o u r t s D e c l a r a t o r y Ordinance, 1868, 1 M a y 1868. P r i n t e d 1877 C. S. B. C. c. 52 (Consecutive No. 301, R.S. 1871, No. 99): " 1. A l l the j u r i s d i c t i o n , powers, and authorities which before the passing of the " B r i t i s h C o l u m b i a Act, 1866, " were by law vested in and had and e x e r c i s a b l e by the Supreme Court of C i v i l J u s t i c e of the Colony of Vancouver Island, and in and by the Ch i e f J u s t i c e thereof, both in c i v i l and c r i m i n a l matters and proceedings, s h a l l be deemed and taken to have continued so vested in, and to have been had and e x e r c i s a b l e by, the said C o u r t and the said C h i e f J u s t i c e thereof, as if the said A c t had not been passed. 2. Whenever, in any of the Ordinances made and passed in the l a s t S e s s i o n of the L e g i s l a t u r e of this Colony, the words "The Supreme Court, " "The Supreme C o u r t of C i v i l J u s t i c e , " "The Supreme C o u r t of C i v i l J u s t i c e of B r i t i s h Columbia, " "or other s u p e r i o r C o u r t s " s h a l l occur, the same s h a l l henceforward and unless repugnant to the pla i n sense of the context, be and be deemed to have been, f r o m the date of the p a s s i n g of such Ordinances r e s p e c t - ively, f o r the Mainland "The Supreme C o u r t of C i v i l J u s t i c e of B r i t i s h Columbia, " f o r Vancouver Island and its Dependencies "The Supreme C o u r t of C i v i l J u s t i c e of the Colony of Vancouver Island. " (viii) Supreme Co u r t s Ordinance, 1869, 1 March, 1869. P r i n t e d 1877 C. S.B.C. c. 53 (Consecutive No. 318, R.S. 1871, No. 112): " 4. The Supreme C o u r t es t a b l i s h e d under the name of "The Supreme Court of C i v i l J u s t i c e of the Colony of Vancouver Island" shall, f r o m and after the coming into operation of this Ordinance, be c a l l e d "The Supreme C o u r t of Vancouver Island, " and the present C h i e f J u s t i c e thereof s h a l l be c a l l e d and known by the. name and style of "The C h i e f J u s t i c e of Vancouver Island. " 219 5. The Supreme C o u r t established under the name of "The Supreme C o u r t of C i v i l J u s t i c e of B r i t i s h C o l u m b i a " shall, f r o m and after the coming into operation of this Ordinance, be c a l l e d "The Supreme Co u r t of the Mainland of B r i t i s h Columbia, " and the present Judge thereof s h a l l be c a l l e d and known by the name and style of the " C h i e f J u s t i c e of the M a i n - land of B r i t i s h Columbia. " 10. Provided, always, that upon the Ma i n l a n d of B r i t i s h C olumbia the C h i e f J u s t i c e of the Mainland of B r i t i s h Columbia, and upon Vancouver Island the C h i e f J u s t i c e of Vancouver Island, s h a l l have rank and precedence over the other C h i e f J u s t i c e . 11. Upon a vacancy being created by the death, resignation, or otherwise, of either of the present two C h i e f J u s t i c e s , the said Supreme C o u r t s of the Mainland of B r i t i s h C olumbia and of Vancouver Island s h a l l be merged into one Supreme Court, to be c a l l e d "The Supreme C o u r t of B r i t i s h Columbia, " and the s u r v i v i n g or r e m a i n i n g C h i e f J u s t i c e s h a l l p r e s i d e over the said Courts, and s h a l l be c a l l e d "The C h i e f J u s t i c e of B r i t i s h Columbia", " Co u r t s M e r g e r Ordinance, 1870, 22 A p r i l , 1870. P r i n t e d 1877 C. S. B. C. c. 54 (Consecutive No. 346, R. S. 1871, No. 135): " 1. The m e r g e r of the Supreme C o u r t of the Mainland of B r i t i s h Columbia, and of the Supreme C o u r t of Vancouver Island, into the Supreme C o u r t of B r i t i s h Columbia, under the "Supreme C o u r t s Ordinance, 1869," s h a l l be deemed and taken f o r a l l purposes whatsoever to have taken place as f r o m the twenty-ninth day of March, A. D. 1870, and s h a l l be so r e c o g n i z e d in judicature, and thereout, i n a l l proceedings, matters, and things by a l l persons and for a l l purposes whatsoever. " Supreme C o u r t F e e s Ordinance, 1870, 26 A p r i l , 1870. P r i n t e d 1877 C. S.B.C. c. 55 (Consecutive No. 236, 350, 435; R. S. 1871, Nos. 60, 139, r e s p e c t i v e l y , and 15 (1873) (e) Union with Canada 220 (xi) P uisne Judges Appointment Act, 1872, 11 A p r i l 1872. P r i n t e d 1877 C. S. B. C. c. 56 (Consecutive No. 404, No. 24 (1872)). (xii) C i r c u i t C o u r t s Act, 1872, 11 A p r i l , 1872. P r i n t e d 1877 C.S.B.C. c. 57 (Consecutive No. 398, No. 18(1872)). (xiii) A c t for enabling the Judges of the Supreme C o u r t to make ru l e s and o r d e r s , 1877, 18 A p r i l , 1877. P r i n t e d 1877 C.S.B.C. c. 58 (Consecutive No. 257, No. 21 (1877)). 221 B r i t i s h N o r t h A m e r i c a Act, 1867, 30 & 31 V i c t . c. 3 (Imp. ) [29 M a rch, 1867 ] P r o v i d e s inter a l i a : s. 91 It s h a l l be lawful for the Queen, by and with the A d v i c e and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in r e - lation to a l l M a t t e r s not coming within the C l a s s e s of Subjects by this A c t assigned e x c l u s i v e l y to the L e g i s l a t u r e s of the P r o v i n c e s ; and for g r e a t e r Certainty, but not so as to r e s t r i c t the G e n e r a l i t y of the foregoing T e r m s of this Section, it is hereby d e c l a r e d that . . . the e x c l u s i v e L e g i s l a t i v e A u t h o r i t y of the P a r l i a m e n t of Canada extends to a l l M a t t e r s coming within the C l a s s e s of subjects next he r e i n a f t e r enumerated; that is to say 1. Added by B r i t i s h N o r t h A m e r i c a (No. 2) Act, 1949, 13 Geo. VI, c. 81 (U. K. ) !'The amendment f r o m time to time of the Constitution of Canada, except as r e g a r d s matters coming within the c l a s s e s of subjects of this A c t assigned e x c l u s i v e l y to the L e g i s l a t u r e s of the provinces, or as r e g a r d s rights or p r i v i l e g e s by this or any other C o n s t i t u t i o n a l A c t granted or s e c u r e d to the L e g i s l a t u r e or the Govern- ment of a province, or to any c l a s s of persons with re s p e c t to schools or as r e g a r d s the use of the E n g l i s h or the F r e n c h language or as r e g a r d s the r e q u i r e m e n t s that there s h a l l be a s e s s i o n of the P a r l i a m e n t of Canada at l e a s t once each year, and that no House of Commons shal l continue for more than five y e a r s f r o m the day of the r e t u r n of the W r i t s for choosing the House: p r o v i d - ed, however, that a House of Commons may in time of r e a l or apprehended war, in v a s i o n or i n s u r r e c t i o n be continued by the P a r l i a m e n t of Canada if such continu- ation is not opposed by the votes of m o r e than one-third of the members of such House. " s. 92 In each P r o v i n c e the L e g i s l a t u r e may e x c l u s i v e l y make Laws in r e l a t i o n to M a t t e r s coming within the C l a s s e s of Sub- jects next h e r e i n - a f t e r enumerated .... s. 101. "The P a r l i a m e n t of Canada may, notwithstanding ainy- thing in this Act, f r o m T i m e to T i m e provide for the 222 Constitution, Maintenance, and O r g a n i z a t i o n of a G e n e r a l C o u r t of Appeal f o r Canada, and for the E s t a b l i s h m e n t of any additional C o u r t s for the better A d m i n i s t r a t i o n of the Laws of Canada. " s. 129 E x c e p t as otherwise provided by this Act, a l l Laws in f o r c e in Canada, Nova Scotia, or New B r u n s w i c k at the Union, and a l l C o u r t s of C i v i l and C r i m i n a l J u r i s d i c t i o n , and a l l l e g a l C o m m i s s i o n s , Powers, and A u t h o r i t i e s , and a l l O f f i c e r s , Jud- i c i a l , A d m i n i s t r a t i v e , and M i n i s t e r i a l , existing t h e r e i n at the Union, s h a l l continue in Ontario, Quebec, Nova Scotia, and New B r u n s w i c k r e s p e c t i v e l y , as if the Union had not been made; subject nevertheless (except with r e s p e c t to such as a r e enact- ed by or exist under A c t s of the P a r l i a m e n t of Great B r i t a i n or of the P a r l i a m e n t of the United K ingdom of G r e a t B r i t a i n and Ireland, ) to be repealed, abolished, or a l t e r e d by the P a r l i a - ment of Canada, or by the L e g i s l a t u r e of the r e s p e c t i v e P r o v - ince, a c c o r d i n g to the A u t h o r i t y of the P a r l i a m e n t or of that L e g i s l a t u r e under this Act. s. 146 It s h a l l be lawful for the Queen, ... on A d d r e s s e s f r o m the Houses of P a r l i a m e n t of Canada, and f r o m the Houses of the r e s p e c t i v e L e g i s l a t u r e s of the C o l o n i e s or P r o v i n c e s of New- foundland, P r i n c e E d ward Island, and B r i t i s h Columbia, to admit those C o l o n i e s or P r o v i n c e s , . . . into the Union, . . . on such T e r m s and Conditions in each C ase as a r e in the A d d r e s - ses e x p r e s s e d and as the Queen thinks fit to approve, subject to the P r o v i s i o n s of this Act; and the P r o v i s i o n s of any O r d e r in C o u n c i l in that B e h a l f s h a l l have effect as if theydhad been enacted by the P a r l i a m e n t of the United K ingdom of Great B r i t a i n and Ireland. 223 V The Interpretation Act, B r i t i s h C o l u m b i a (xiv) The Interpretation Act, 1872, S.B.C. 1877, ch. 2, s. 6, reads in part: "In construing this or any A c t of the L e g i s l a t u r e of B r i t i s h Columbia, unless it be otherwise provided, or there be something i n the context or other pro- v i s i o n s thereof indicating a different meaning, or c a l l i n g f o r a different construction: (1) The Law is to be co n s i d e r e d as always speaking, and whenever any matter or thing is ex p r e s s e d in the present tense, the same is to be applied to the c i r - cumstances as they a r i s e , so that effect may be given to each A c t and e v e r y part thereof a c c o r d i n g to its its s p i r i t , true intent, and meaning: (2) The word " s h a l l " is to be construed as imper- ative, and the word "may" as p e r m i s s i v e ; " Note: by s. 2, this A c t is applicable to those statutes passed after 1872, i . e. after 35 V i c t o r i a ( B r i t i s h Columbia); and by s. 9, the effect of 13 & 14 V i c t o r i a c. 2. , "An A c t for shortening the language used in A c t s of P a r l i a m e n t " is p r e s e r v e d . (xv) Interpretation Act, R.S.B.C. I960, c. 199, s. 23 (in part): "In construing this or any A c t of the L e g i s l a t u r e , unless it is otherwise provided, or there is some- thing in the context or other p r o v i s i o n s thereof indica t i n g a d i f f e r e n t meaning, or c a l l i n g f o r a different construction, (a) the word " s h a l l " is to be construed as imper- ative, and the word "may" .... 7 i (d) the law is to be c o n s i d e r e d as always speak- ing, and whenever any matter or thing is expre s s e d in the present tense, the same is to be applied to the c i r c u m s t a n c e s as they a r i s e , 224 so that effect may be given to each Act, and every part thereof, a c c o r d i n g to its s p i r i t , true intent, and meaning;" (f) ''every A c t and every p r o v i s i o n or enactment thereof s h a l l be deemed r e m e d i a l , whether its immediate purport be to d i r e c t the doing of any- thing that the L e g i s l a t u r e deems to be for the public good, or to prevent or punish the doing of anything that it deems c o n t r a r y to the public good; and sh a l l a c c o r d i n g l y r e c e i v e such f a i r , large, and l i b e r a l c o n s t r u c t i o n and int e r p r e t a t - ion as w i l l best ensure the attainment of the object of the Act, and of such p r o v i s i o n or en- actment, a c c o r d i n g to their true intent, meaning, and s p i r i t ; " s.22 The r e p e a l of any A c t or pa r t of an A c t s h a l l not rev i v e any A c t or p r o v i s i o n of law repeale d by such Act or pa r t of an Act, or prevent the effect of any saving clause t h e r e i n . (xvi) Interpretation Act, S.B.C. 1974, c. 42 ( p r o c l a i m e d effective J u l y 1, 1974) 22-23 E l i z . I I € . 4 2 . s.7(l) E v e r y enactment s h a l l be construed as always speaking. (2) Where a p r o v i s i o n i n an enactment i s e x p r e s s e d i n the pres e n t tense, the p r o v i s i o n applies to the c i r c u m s t a n c e s as they a r i s e . s.8 E v e r y enactment s h a l l be construed as being r e m e d i a l , and sh a l l be given such f a i r , l a r g e and l i b e r a l c o n s t r u c t i o n and i n t e r p r e t a t i o n as best ensures the attainment of its objects. s.30 p r o v i d e s , i n part, Where an enactment i s repe a l e d i n whole or i n part, the r e p e a l does not (a) r e v i v e an enactment or thing not in fo r c e or ex i s t i n g i m m e d i a t e l y before the time when the r e p e a l takes effect; o r . . . . s.31 sets out elaborate p r o v i s i o n s as to r e p e a l and replacement. 225 VI I m p e r i a l L e g i s l a t i o n e nlarging or defining the sphere of C o l o n i a l l e g i s l a t i o n g e n e r a l l y 1. C o l o n i a l Laws V a l i d i t y Act, 1865, j 29 June, 1865 ] 28 & 29 V i c t . c. 63 (Imp.) pro v i d e s inter a l i a : "An A c t of P a r l i a m e n t , or any P r o v i s i o n thereof, shall, in construing this Act, be said to extend to any Colony when it i s made applicable to such Colony by the express Words or n e c e s s a r y Intendment of any A c t of P a r l i a m e n t : . . . 2. Any C o l o n i a l L a w which is o r s h a l l be in any re s p e c t repugnant to the P r o v i s i o n s of any A c t of P a r l i a m e n t extending to the Colony to which such Law may relate, or repugnant to any O r d e r or Regulation made under the Au t h o r i t y of such A c t of P a r l i a m e n t , or having in the Colony the F o r c e and E f f e c t of Such Act, s h a l l be read subject to such Act, O r d e r , or Regulation, and shall , to the Extent of such Repugnancy, but not otherwise, be and r e m a i n absolutely void and i n - operative. 3. No C o l o n i a l Law s h a l l be or be deemed to have been void or inoperative on the Ground of Repugnancy to the Law of England, unless the same s h a l l be repugnant to the P r o v i s i o n s of some such A c t of Pa r l i a m e n t , O r d e r or Regulation as a f o r e s a i d ; " 2. Statute of Westminster, 1931, 22 Geo. V, c. 4 (Imp. ) [11 December, 1931 ] pro v i d e s inter a l i a : "2(1) The C o l o n i a l Laws V a l i d i t y Act, 1865, s h a l l not apply to any law made after the commencement of this A c t by the P a r l i a m e n t of a Dominion. (2) No law and no p r o v i s i o n of any law made after the commencement of this A c t by the P a r l i a m e n t of a Domi n i o n s h a l l be void or inoperative on the ground that it is repugnant to the law of England, or to the p r o v i s i o n s of any existing or future A c t of P a r l i a m e n t of the United Kingdom, or to any order, r u l e or 226 regulation made under any such Act, and the powers of the P a r l i a m e n t of a Dominion s h a l l include the power to r e p e a l or amend any such Act, order, rule or regulation in so far as the same is part of the law of the Dominion. 3 It i s hereby d e c l a r e d and enacted that the P a r l i a - ment of a Dominion has f u l l power to make laws having e x t r a - t e r r i t o r i a l operation. 4 No A c t of P a r l i a m e n t of the United K i ngdom passed after the commencement of this A c t s h a l l extend, or be deemed to extend, to a Dominion as part of the law of that Dominion, unless it is e x p r e s s l y d e c l a r e d in that A c t that the Dominion has requested, and consented to the enactment thereof. 5 Without prejudice to the g e n e r a l i t y of the foregoing p r o v i s i o n s of this Act, sections seven hundred and t h i r t y - five and seven hundred and t h i r t y - s i x of the M e r chant Shipping Act, 1894, s h a l l be construed as though r e f e r - ence t h e r e i n to the L e g i s l a t u r e of a B r i t i s h P o s s e s s i o n did not include r e f e r e n c e to the P a r l i a m e n t of a Dominion. " (Merchant Shipping Act, 1894, 57 & 58 V i c t . c. 60 (Imp. )) 6 excludes s. 4 & part of s. 7 of C o l o n i a l C o u r t s of A d m i r a l t y Act, 1 890, f r o m effect in any Dominion. (C o l o n i a l C o u r t s of A d m i r a l t y Act, 1890, 53 & 54 V i c t , c. 27 (Imp. )) "7(1) Nothing in this A c t s h a l l be deemed to apply to the repeal, amendment or a l t e r a t i o n of the B r i t i s h North A m e r i c a A c t s , 1876 to 1930, or any order, r u l e or r e g - ulation made thereunder. (2) The p r o v i s i o n s of section two of this A c t s h a l l extend to laws made by any of the P r o v i n c e s of Canada and to the powers of l e g i s l a t u r e s of such P r o v i n c e s . (3) The powers c o n f e r r e d by this A c t upon the P a r l i a m e n t of Canada or upon the l e g i s l a t u r e s of the P r o v i n c e s s h a l l be r e s t r i c t e d to the enactment of laws in r e l a t i o n to matters within the competence of the P a r l i a m e n t of Canada or of any 227 of the l e g i s l a t u r e s of the P r o v i n c e s r e s p e c t i v e l y . 11 Notwithstanding anything in the Interpretation Act, 1889, the e x p r e s s i o n "Colony" s h a l l not, i n any A c t of the P a r l i a m e n t of the United K i n g d o m passed after the commencement of this Act, include a Dominion or any P r o v i n c e or State f o r m i n g part of a Dominion. " Note: Interpretation Act, 1889, 52 & 53 V i c t . c. 63 (Imp.) 228 APPENDIX B VII T h e Law of England (Application) Law, Cap. 60, 1959 (Western N i g e r i a ) : " 3. F r o m and after the commencement of this Law and subject to the p r o v i s i o n s of any written law, the common law of England and the d o c t r i n e s of equity observed by H e r Majesty's H i g h C o u r t of J u s t i c e in England s h a l l be in f o r c e throughout the Region. 4. Subject to the p r o v i s i o n s of this Law no I m p e r i a l A c t hitherto in f o r c e within the Region s h a l l have any f o r c e or effect therein: P r o v i d e d that, subject to the express p r o v i s i o n s of any written law, this section s h a l l not -- (a) r e v i v e anything not in f o r c e or e x i s t i n g at the commencement of this Law; or (b) affect the previous operation of any I m p e r i a l A c t to which this section applies or anything duly done or suffered under any such Act; or (c) affect any right, p r i v i l e g e , obligation or l i a b i l i t y a c c r u e d or i n c u r r e d under any such Act; or (d) affect any penalty, f o r f e i t u r e or punish- ment i n c u r r e d in r e s p e c t of any offence committed against any such Act; or (e) affect any investigation, l e g a l proceeding or r emedy in r e s p e c t of any such right, p r i v i l e g e , obligation, l i a b i l i t y , penalty, f o r f e i t u r e or punishment as a f o r e s a i d ; and any such investigation, l e g a l proceeding or remedy may be instituted, continued or enforced and any such penalty, f o r f e i t u r e or punishment may be imposed as if this Law had not been passed: 229 P r o v i d e d that where the penalty, f o r f e i t u r e or punishment imposed by any such written law in fo r c e upon or after the commencement of this Law is heavier than that imposed by any such A c t as af o r e s a i d , the p r o v i s i o n s of such A c t where- by the l i g h t e r penalty, f o r f e i t u r e or punishment is imposed sha l l , unless such written law as a f o r e s a i d otherwise provides, be applied i f the court decides to i n f l i c t any punishment. " VIII B A H A M A S (i) D e c l a r a t o r y A c t of the Bahama Islands (1799) 40 Geo. 3 c. 2 (Bahamas) "An A c t to d e c l a r e how much of the laws of England are pr a c t i c a b l e within the Bahama Islands and ought to be in f o r c e within the same. " Pre a m b l e : The common law of England in a l l cases, where the same hath not been a l t e r e d by any of the A c t s or Statutes here- inafter enumerated, or by any A c t or A c t s of the A s s e m b l y of these islands, (except so much thereof as hath r e l a t i o n to the ancient feudal tenures, to outlawries in c i v i l suits, to the wager of law or of b a t a i l , appeals of felony, w r i t s of attaint, and e c c l e s i a s t i c a l matters) is and of right ought to be, in f u l l f o r c e within these islands, as the same now is i n that part of Gre a t B r i t a i n c a l l e d England. " s. 2 "The s e v e r a l statutes and A c t s of P a r l i a m e n t h e r e i n - after p a r t i c u l a r l y enumerated and mentioned, are, and of righ t ought to be, in f u l l f o r c e and v i r t u e within and throughout this Colony, as the same would be if the Bahama Islands were the r e i n e x p r e s s l y named, or as if the a f o r e s a i d A c t s and Statutes had been made and enacted by the G e n e r a l A s s e m b l y of these Islands. " The l i s t extends f r o m 1225 to 1787. s. 3 " A l l and e v e r y of the Ac t s , Statutes, and parts of A c t s and Statutes of the P a r l i a m e n t of England or Great B r i t a i n , which re l a t e to the pr e r o g a t i v e of the Crown, or to the alleg i a n c e of the people, a l s o such as r e q u i r e c e r t a i n oaths 230 (commonly c a l l e d the state oaths) and tests to be taken or s u b s c r i b e d by the people of Grea t B r i t a i n , a l s o such as d e c l a r e the rights, l i b e r t i e s , and p r i v i l e g e s of the subject are, and of right ought to be, of f u l l f o r c e and virtue within this Colony, as the same would be if the Bahama Islands were the r e i n e x p r e s s l y named, or as if the a f o r e s a i d A c t s and Statutes had been made and enacted by the G e n e r a l A s s e m b l y of these Islands. s. 7 declared, "That the s e v e r a l A c t s and Statutes hereby d e c l a r e d to be in f o r c e s h a l l be taken, construed and executed l i b e r a l l y and a c c o r d i n g to the substantial effect and meaning of the same and provided also, that nothing h e r e i n contained s h a l l extend, or abridge, a l t e r or r e p e a l any A c t or A c t s of the G e n e r a l A s s e m b l y of these Islands, or any a r t i c l e , clause, matter or thing h e r e i n contained. " 231 ( i i ) D e c l a r a t o r y Act, 1957, c. 2 (Bahamas) Schedule, P a r t 1 l i s t s A C T S AND S T A T U T E S O F T H E P A R L I A M E N T O F E N G L A N D AND O F T H E P A R L I A M E N T O F G R E A T B R I T A I N E X T E N D E D T O T H E C O L O N Y B Y 2 of 1799 Chapter in A c t s and Statutes Subject this E d i t i o n 27 H e n r y VIII. Ch. 10 Statute of U ses 200 13 E l i z a b e t h I. Ch. 5 Fraudulent Gifts 201 27 E l i z a b e t h I. Ch. 4 Fraudulent Conveyances 202 43 E l i z a b e t h I. Ch. 8 F r a u d u l e n t A d m i n i s t r a t i o n 226 21 James I. Ch. 16 L i m i t a t i o n of A c t i o n s 97 19 C h a r l e s II. Ch. 6 P r e s u m p t i o n of Death 98 22 & 23 C h a r l e s II. Ch. 10 Statute of D i s t r i b u t i o n s 227 29 C h a r l e s II. Ch. 3 Statute of F r a u d s 203 31 C h a r l e s II. Ch. 2 Habeas Corpus 99 3 W i l l i a m & Mary. Ch. 14 F r a u d u l e n t D e v i s e s 228 4 W i l l i a m & Mary. Ch. 16 Clandestine Mortgages 204 8 & 9 W i l l i a m III. Ch. 11 F r i v o l o u s and Vexatious Suits 100 10 & 11 W i l l i a m III. Ch. 16 Posthumous C h i l d r e n 229 8 Anne. Ch. 14 L a n d l o r d and Tenant 206 9 Anne. Ch. 14 Gaming 101 4 George II. Ch. 10 L u n a t i c s ' E s t a t e s 237 4 George II. Ch. 28 L a n d l o r d and Tenant (No. 2) 207 7 George II. Ch. 20 Mortgages 205 11 George II. Ch. 19 D i s t r e s for Rent (No. 2) 209 15 George II. Ch. 30 L u n a t i c s ' M a r r i a g e 238 N O T E . - - T h i s A c t d e c l a r e d 207 A c t s and Statutes in f o r c e in the Colony. Subsequent l e g i s l a t i o n has reduced this number to 20. E a c h of these A c t s and Statutes is i n s e r t e d in its appro- priate title and numbered as a chapter of this E d i t i o n as indicat- ed above. Schedule, P a r t II l i s t s A C T S AND S T A T U T E S O F T H E P A R L I A M E N T OF. E N G L A N D AND O F T H E P A R L I A M E N T O F G R E A T B R I T A I N A N D O F T H E PAR- L I A M E N T O F T H E U N I T E D K I N G D O M O F G R E A T B R I T A I N AN D I R E L A N D E X T E N D E D T O T H E C O L O N Y SI N C E T H E E N A C T M E N T O F T H E D E C L A R A T O R Y A C T (2 of 1799) and S T I L L IN F O R C E . 232 Chapter A c t s and Statutes Extending in this Extended Subject A c t E d i t i o n 2 W i l l i a m & M a r y Sess. 1. Ch. 5 D i s t r e s s f o r Rent 10 of 1872 208 57 George III. Ch. 52 De s e r t e d Tenements 10 of 1872 210 6 George IV. Ch. 129 Combination of Workmen 1 of 1839 293 1 W i l l i a m IV. Ch. 40 E x e c u t o r s 23 of 1860 232 2 & 3 W i l l i a m IV. Ch. 71 P r e s c r i p t i o n 9 of 1846 213 3 & 4 W i l l i a m IV. Ch. 27 R e a l P r o p e r t y L i m i t a t i o n 9 of 1846 214 3 k 4 W i l l i a m IV. Ch. 42 C i v i l P r o c e d u r e 33 of 1840 102 3 & 4 W i l l i a m IV. Ch. 106 Inheritance 15 of 1844 233 4 & 5 W i l l i a m IV. Ch. 22 Rent 10 of 1872 211 1 V i c t o r i a Ch. 26 W i l l s 23 of 1841 230 1 V i c t o r i a Ch. 28 R e a l P r o p e r t y L i m i t a t i o n 9 of 1846 215 6 & 7 V i c t o r i a Ch.96 L i b e l 8 of 1847 103 8 & 9 V i c t o r i a Ch. 106 R e a l P r o p e r t y 9 of 1846 217 9 & 10 V i c t o r i a Ch. 93 F a t a l A c c i d e n t s 7 of 1847 104 13 & 14 V i c t o r i a Ch. 28 T r u s t e e s Appointment 14 of 1903 105 15 & 16 V i c t o r i a Ch. 24 W i l l s 21 of 1854 231 18 & 19 V i c t o r i a Ch. 43 Infants' Settlements 23 of 1860 107 18 & 19 V i c t o r i a Ch. I l l B i l l s of L a d i n g 23 of 1860 151 19 & 20 V i c t o r i a Ch. 97 M e r c a n t i l e Law Am'dm't 23 of 1860 152 22 & 23 V i c t o r i a Ch. 35 P r o p e r t y and T r u s t e e s 23 of 1 860 218 25 & 26 V i c t o r i a Ch. 89(Part iv) Companies 4 of 1868 124 33 & 34 V i c t o r i a Ch. 23 C r i m i n a l F o r f e i t u r e s 7 of 1875 108 33 & 34 V i c t o r i a Ch. 35 Apportionment 10 of 1872 212 34 & 35 V i c t o r i a Ch. 79 Lo d g e r s ' Goods 10 of 1872 109 37 & 38 V i c t o r i a Ch. 57 R e a l P r o p e r t y L i m i t a t i o n 2 of 1877 216 45 & 46 V i c t o r i a Ch. 61 B i l l s of Exchange 5 of 1892 150 52 & 53 V i c t o r i a Ch. 49 A r b i t r a t i o n 20 of 1899 110 53 k 54 V i c t o r i a Ch. 19 T r u s t e e s Appointment 14 of 1903 106 56 & 57 V i c t o r i a Ch. 53 T r u s t e e s 20 of 1899 111 N O T E . - - E a c h of these A c t s and Statutes is i n s e r t e d in its appro- priate title and numbered as a chapter of this E d i t i o n as indicated above. T h e r e are in addition c e r t a i n A c t s of the United K i n g d o m P a r l i a - ment that apply in the Colony by v i r t u r e of their own p r o v i s i o n s . These a r e not printed in this E d i t i o n , but a r e f e r e n c e is made to them at the end of the Ta b l e of Statutes.

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