Mercer v. Attorney General for Ontario

Mercer v. Attorney General for Ontario
Collection
Supreme Court Judgments
Date
1881-11-14
Report
(1881) 5 SCR 538
Judges
Ritchie, William Johnstone; Strong, Samuel Henry; Fournier, Télesphore; Henry, William Alexander; Taschereau, Henri-Elzéar; Gwynne, John Wellington
On appeal from
Ontario
Subjects
Estates
Decision Content
Supreme Court of Canada
Mercer v. Attorney General for Ontario, (1881) 5 S.C.R. 538
Date: 1881-11-14
Andrew Mercer (Plaintiff) Appellant;
and
The Attorney General for the Province of Ontario (Defendant) Respondent.
1881: March 5, 7, 8; 1881: November 14.
Present: Sir W.J. Ritchie, Knight, C.J.; and Strong, Fournier, Henry, Taschereau and Gwynne, J.J.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Escheat—Hereditary revenue—The Escheat Act R.S.O., c. 94 ultra vires—B.N.A. Act, secs. 91, 92, 102 and 109.
On an information filed by the Attorney General of Ontario, for the purpose of obtaining possession of land in the city of Toronto, which was the property of one Andrew Mercer, who died intestate and without leaving any heirs or next of kin, on the ground that it had escheated to the crown for the benefit of the Province, and to which information A.M. the appellant, demurred for want of equity, the Court of Chancery held, overruling the demurrer, that the Escheat Act, c. 94 R.S.O., was not ultra vires, and that the escheated property in question accrued to the benefit of the Province of Ontario. From this decision A.F. appealed to the Court of Appeal for Ontario, and that court affirmed the order overruling the said demurrer and dismissed the appeal with costs. On an appeal to the Supreme Court the parties agreed that the appeal should be limited to the broad question, as to whether the government of Canada or the Province is entitled to estates escheated to the crown for want of heirs.
Held,—[Sir W.J. Ritchie, C.J., and Strong, J., dissenting,] that the Province of Ontario does not represent her Majesty in matters of escheat in said Province, and therefore the Attorney General for Ontario could not appropriate the property escheated to the crown in this case for the purposes of the Province, and that the Escheat Act, c. 94 R.S.O., was ultra vires.
Per Fournier, Taschereau and Gwynne, J.J.—That any revenue derived from escheats is by sec. 102 of the B.N.A. Act placed under the control of the Parliament of Canada as part of the Consolidated Revenue Fund of Canada, and no other part of the act exempts it from that disposition. APPEAL from a decision of the Court of Appeal for the Province of Ontario affirming the judgment of Proudfoot, V.C., on an appeal of the appellant to the said Court of Appeal, from the decision of the said Vice-Chancellor, over-ruling the demurrer of the appellant to the information of the Attorney-General for Ontario.
An information was filed in the Court of Chancery on the 28th September, 1878, by the Attorney-General of Ontario against Bridget O’Reilly, Andrew F. Mercer and Catharine Smith, stating that Andrew Mercer, late of the city of Toronto, died on the 13th day or June, 1871, intestate, and without leaving any heir or next of kin, whereby the estate of the said Andrew Mercer in Ontario became escheated to the Crown for the benefit of the province; that he died seized of certain specified real estate; that immediately upon his death the defendants entered into possession of it without permission or assent of her Majesty, and have continued in possession, and refused to give up possession to her Majesty; that possession was demanded on 21st Sept., 1878, but the defendants refuse to deliver up possession; and praying that the defendants be ordered to deliver, up possession of the said land, &c. The defendant Andrew F. Mercer, demurred to the said information for want of equity, and the demurrer was argued before Proudfoot, V.C. On the 7th January, 1879, the learned judge made an order overruling the said demurrer.
From this decision, the defendant, Andrew F. Mercer, appealed to the Court of Appeal lor Ontario, and that court held that the Provincial Governments are entitled, under the British North America Act, to recover and appropriate escheats, and affirmed the order overruling the said demurrer and dismissed the appeal with costs.
Against this judgment and order of the Court of Appeal, the defendant appealed to the Supreme Court, and the parties agreed that the appeal should be limited to the broad question as to whether the Grovernment of Canada or of the Province is entitled to estates escheated to the crown for want of heirs.
The Minister of Justice for the Dominion of Canada, concurring in the view of appellant’s counsel, that the hereditary revenues of the crown belong to the Dominion, intervened, and the case was argued before the full court in March, 1881—Mr. Lash, Q.C., for the Dominion Government, opened the case.
Mr. Lash, Q.C.:—
The Dominion Government have intervened in this case in order to have the question determined whether the government of the Dominion of Canada or the government of the Province of Ontario have the right to deal with the escheated property It is admitted that the land in question here did escheat, and the only question is to which government the land now belongs.
Andrew Mercer died 18th June, 1871; the crown patent for the land in question issued before confederation. It is, I think, necessary to decide what is the reason why land escheats. There are but two reasons given—1st. that the crown is the last heir (ultimus hæres) and takes by royal prerogative; 2nd. that in socage tenure of lands an estate remains in the crown, which, when the heirs of the tenant in fee simple fail, draws to it the fee simple, thus making the crown the owner.
Opinions differ as to which is the true reason. The case must therefore be argued in both views. That the crown is the last heir is the opinion of Lord Mansfield in Burgess v. Wheate[1]. This view is also supported by the provisions of the act of Edward II, concerning the prerogatives of the king[2], and also by Proudfoot, V.C., in his judgment in this case. That escheat is a consequence of the free and common socage tenure, see Blackstone Comm.[3]; Burgess v. Wheate and Middleton v. Spicer[4], and the judgment of Patterson J., in this case. By 31 Geo. 3, c. 31, Imp. stat., the lands in the province of Ontario are held in free and common socage. Now the effect of this Imperial statute, which is still in force, is that the allodial estate remains in the crown and, in the old province of Upper Canada, from 1791 to confederation, neither the provincial executive nor legislature had control over that tenure. Assuming then that escheat took place in either of the ways mentioned it was a royal revenue, and prior to the union act, 3 and 4 Vic., c. 35, sec. 54, belonged to the Crown and did not go to the consolidated revenue of the province. By that statute the territorial and other revenues of the Crown were surrendered to the provinces, not absolutely or unconditionally, but to the account of the consolidated revenue fund of Canada during the life of Her Majesty and for five years after the demise of Her Majesty. This section 54 is repealed by Imperial act 10 and 11 Vic., c. 71, and new provision of a similar kind is substituted by the Canadian act, 9 Vic., c. 114. Now if the word “revenue” as used in the Imperial statutes, included revenues from escheats, I contend the word revenue in sec. 102, B.N.A. Act, 1867, includes revenues from escheats and that such revenue passed to the control of the Dominion parliament. This section excepts only “such portions thereof as are by this act reserved to the respective legislatures of the province.” The question therefore arises whether the power of appropriation over revenues derived from escheats was by the B.N.A. Act “reserved to the respective legislatures of the provinces.” Assuming first that escheat is a royal prerogative, I contend that the B.N.A. Act gives no power over it to the provincial legislatures. In the recital of the act, we do not find a word said about the provinces to be created out of the Dominion and there is not a word about provincial constitutions till sec. 58. Section 5 merely relates to the territorial division of Canada. Section 9 continues the executive government of Canada in the Queen. I cannot find anywhere in the act provision for the appointment of a Governor General. This power exists in the Queen by common law. The first 57 sections and a few others respecting legislative authority would have been a sufficient constitution for Canada and would have entitled the Governor General, as representing the Queen, to do every thing which before the union the other governors could have done.
We now come to the provisions respecting the provincial constitutions. They are specific; the others are general. The effect, therefore, was to create each province a body politic—a quasi corporation, as distinct from her Majesty—so that whatever rights she held individually if now vested in the provinces must have been taken away from her Majesty and given to the provinces.
What rights possessed by the Queen have been taken away from her and handed over to the provinces? The Queen can come to Canada and rule in person, under the advice of her Canadian Privy Councillors. She can appoint a governor-general, but she cannot rule in the provinces with the advice of the provincial executive council. The lieutenant-governor must do that, and therefore she does not form part of the provincial legislature, as she does of the Dominion Parliament. The Queen, not being allowed to act either in the government or in the legislature of the province, the pro- vinces must be regarded as having a separate existence from and any rights possessed by them which the Queen previously possessed must have been taken out of the Queen and vested in them by the B.N.A Act. If the right of escheat, therefore, be a prerogative right where is it taken out of the Queen and vested in the province? Not by sec. 92, not by secs. 109 or 117, as this prerogative right is not lands or property.
The estate which, is granted, is the freehold and not the allodial estate, which must remain in her Majesty, represented by the Governor-General There is nothing in sec. 92 of the B.N.A. Act taking away this prerogative right. Section 109 did not change the tenure of the lands, for it expressly says: “subject to any interest other than that of the province in the same.” This allodial estate certainly did not belong to the province at the union, for the land had been granted and, under the imperial statute, it was in the Queen.
The only other section is sec. 129, which gives the right to alter and change existing laws, but laws existing in virtue of the Imperial statute, 1791, could not be altered by the legislatures in so far as the allodial estate of her Majesty is concerned. What was surrendered was the revenues, when they might arise, but not the prerogative right, which remains in her Majesty.
If this view is correct, then lands in the province of Ontario which escheat to the crown in right of the royal prerogative, whether as last heir or by reason of the socage tenure, are within the meaning of section 102 of the B.N.A. Act and belong to the Dominion, and the Attorney General of the Dominion, and not the Attorney General of the province, is the proper officer to represent her Majesty and to take proceedings in her name for the collection of these revenues. The following statutes and authorities were also cited by counsel in the course of his argument.
Imperial Statutes: 1 Will IV, c. 25; 1 and 2 Vic., c. 2, sec. 12; 31 Geo. III, c. 31; 3 and 4 Vic., c. 35 (union act), sec. 42, 53, 54, 57, 59; 10 and 11 Vic., c. 71; 30 and 31 Vic., c. 3 (B.N.A Act); 15 and 16 Vic., c. 39.
Dominion Statutes: 31 Vic., c. 5, sec. 12, 50; 31 Vic., c. 39, sec. 3.
New Brunswick Civil List Act: Revised statutes, N.B., vol. 1, c. 5, sec. 7. But see copy unrevised appendix journal U.C. assembly, 1857-8, p. 391.
Cases as to grants affecting Royal Prerogative: The case of Mines, Plowden, 3306; the King & Capper[5]; Cruise, vol. 5, p. 422-423; 17 Viner’s abg’t tit. prerogative, p. 126, 130; Touchstone, p. 76, 77, 245; Lenoir v. Ritchie[6].
Mr. Macdougall, Q.C., for appellant:
I appear as counsel for the appellant Mercer, the private party in this case. The judgment of the Ontario Court of Appeal, from which we have appealed to this court, after expressing doubts as to some of the technical questions relating to procedure which were raised in that appeal, maintained the jurisdiction of the provincial authorities in all cases where lands escheat in this country for want of heirs.
I will first ask your lordships to consider the position of the crown in respect to “waste lands” in Canada—and indeed in all the North American provinces—prior to the Union Act of 1840. But, before I enter upon that enquiry, I desire to explain my client’s position as between the two governments. His interest in this contest, is not, in my view, entirely a question of jurisdiction. It is a direct pecuniary interest, for if the local government administers this property he will get very little; if the Dominion government is entitled to represent her Majesty in the matter of escheats, he and his children will fare much better, because it has been the uniform practice in England, for a long period, for the crown to quit claim, or transfer escheated property, to the natural relatives of the deceased owner, where such relatives exist[7]. This has also been the practice in Canada and the other provinces; therefore, I say my client’s interest is not only a moral, but a legal interest, for in such matters custom makes the law. Even the Ontario Government admits that he is the natural son of the deceased Mercer, and if we succeed in proving that the jurisdiction is in the Dominion, I shall expect to receive from her Majesty’s representative in this country the same liberal treatment for my client that he would have received before Confederation.
Prior to 1837, the control of the waste lands of the crown, or, as they were called, “the casual and territorial revenues,” was a subject of discussion and dispute between the crown officials and the local assemblies in all the provinces. These revenues were not administered or appropriated by the local legislatures, but by the governor and his appointees. As settlement went on these revenues increased, and it was found that the executive government could be maintained at the expense of the crown without assistance from the legislatures, and that the people through their representatives could not obtain those reforms which they desired, nor exercise that influence which is now deemed essential to good government over officials who were practically independent of them. This was one of the subjects of dispute which culminated in the outbreak of 1837. The result was favorable to the popular demand, for Lord Sydenham was authorized to consent on behalf of her Majesty to a transfer or surrender of the casual and territorial revenues of the crown for a time, and on certain specific terms and conditions. In his speech to the Upper Canada Legislature, which will be found in the journals of the legislative council for 1839, he said: “I am commanded again to submit to you the surrender of the casual and territorial revenues of the crown in exchange for a civil list, and I shall take an early opportunity of explaining the grounds on which her Majesty’s government felt precluded from assenting to the settlement which you lately proposed.”
It appears that the Upper Canada assembly had proposed a transfer, without conditions which would have secured the salaries of the governor, the judges, and other high officials against the hostile action of a possibly disloyal or domineering majority in the popular branch of the legislature. I find that in the session of 1837-38 the assembly addressed the governor for a copy of an act which had been agreed to between the home authorities and the legislature of New Brunswick, regulating the collection and disbursement of the casual and territorial revenues in that province. Your lordships will find this act, or a copy of it, in the appendix to the Assembly journals of Upper Canada for 1837-38, p. 391. It is to be found also in the revised statutes of New Brunswick, but much abbreviated, though in substance the same. I call your lordships’ attention to the preamble, and especially to the 6th section of this act. It is a rule in the construction of statutes that they are to be interpreted by reference to former acts in pari materiâ, “for it is presumed,” says Maxwell[8], “that the legislature uses the same language in the same sense when dealing at different times with the same subject.”
[The learned counsel then read several passages to show: 1. That the waste lands of the crown in New Brunswick, and the hereditary revenues, including escheats, were not previously subject to the control of the provincial legislature. 2. That the transfer was conditional and for a limited time. 3. That the prerogative right of the sovereign to deal with escheats, to compromise, grant to relatives, or otherwise dispose of them, was expressly reserved. 4. That by the use of the words “lands, mines, minerals and royalties,” as distinct from hereditary revenues such as escheats, it is seen that the construction put upon the word “royalties” by the Quebec Court of Queen’s Bench, in the case of Fraser v. Atty. Gen.[9], is a mistake, for this New Brunswick act was, no doubt, prepared by the law officers of the crown in England.
A bill, founded on the New Brunswick precedent, was passed, but containing, as I believe it did, stipulations that would have infringed on the prerogative rights of the crown, it was not assented to. I have not been able to find a copy of the bill, but I think I have suggested the true explanation of the language used by Lord Sydenham. As regards Upper Canada, therefore, it is evident that prior to the Union Act of 1840, both the casual and the territorial revenues of the crown in that province were under the absolute control of the direct representative of her Majesty in Canada, and that her title to the waste lands jure coronœ and to the hereditary revenues from whatever source had not been, and constitutionally could not be, affected by any act of the provincial legislature without her Majesty’s consent, under the authority of an act of the Imperial parliament. We start then with the Union Act of 1840, to ascertain the nature and extent of local legislative authority over crown lands and crown revenues in Canada, before Confederation. The first point to be observed is the extreme care taken by the Imperial parliament to secure a permanent civil list, especially in respect to the salaries of the governor and judges, as fixed by schedule A of the act. The governor (sec. 53) might abolish any of the political offices, and vary the slims payable for then services, mentioned in schedule B, but the permanent offices could only be touched by an act of the legislature, which of course required the assent of the crown. But as regards the waste lands of the crown, we find this significant restraint on the power of legislation in the 42nd section:—
“Whenever any bill or bills shall be passed containing any provisions which shall in any manner relate to or affect her Majesty’s prerogative touching the granting of waste lands of the crown within the said Province, every such bill or bills shall, previously to any declaration or signification of her Majesty’s assent thereto, be laid before both houses of parliament,” for thirty days, and, if either house should think proper to address her Majesty asking her to withhold her assent, it would not thereafter be lawful for her to give it. Other formalities were required to prevent any covert legislation Which, if neglected, rendered such legislation ipso facto void. It will be seen that under these restrictions, in connection with those of the 57th section, preventing the legislature from passing any vote to appropriate any part of the surplus of the consolidated revenue fund, without “a message” from the governor, and in the 59th section, which requires the governor to exercise all his powers and authorities in conformity with instructions from her Majesty, any law divesting the crown of any of its prerogative rights, and vesting them in the provincial legislature, must emanate from, or be express- ly confirmed by, the Imperial parliament. Now, it will be for my learned friends to produce such a law prior to July 1867, if they can. I have failed to discover it. By the Imperial Act of 1791 the tenure of free and common socage was declared to be the tenure of lands in Upper Canada, when granted by the crown, but the fee, estate, or title of the sovereign in the ungranted lands, has never been divested or transferred to any other power, Imperial or local. I contend that the power of the Canadian Parliament before 1867, and the power of the local legislatures since, in respect to the public lands was and is simply a power of administration. I admit that an act of the old Canadian Parliament, sanctioned and approved by her Majesty, as required by the Union Act of 1840, might have transferred to the Canadian Government the absolute proprietorship, the prerogative right, of her Majesty in the public lands, as well as the power to manage and sell, and collect and account for, the proceeds, but no such act is to be found, and therefore the prerogative right remains as before. Such then is the general conclusion at which we arrive as to the legal and constitutional position and power of the Canadian Government prior to 1867, in respect to the prerogative rights of her Majesty in the casual and territorial revenues and waste lands of the crown. In addition to the sections I have cited from the Union Act of 1840, I refer your lordships to Forsyth’s cases and opinions[10], for the opinion of the law officers of the crown, that escheats, in the colonies, cannot be granted before they accrue; and the English Civil List Act 1 and 2 Vic, c. 2, and the Imperial Act, 15 and 16 Vic., c. 39, were passed to remove doubts as to whether hereditary revenues in the colonies had not been surrendered to the Imperial Consolidated Fund. From all these acts and authorities I contend it is clear that the jurisdiction of the Canadian Government, even when these lands and revenues were under the control of a governor who was a direct representative of the crown, was limited, conditional, fiduciary, and temporary; and that the power reserved by the 6th section of the New Brunswick Civil List. Act, and by the 12th section of the Imperial Civil List Act (which are almost identical in terms) was reserved in the case of Canada, and that her Majesty has never parted with her right to dispose of escheats by and through her representative, the Governor General. The 1st and 2nd Vic., c. 2, in terms extends to the colonies and foreign possessions of the crown, and the 15th and 16th Vic., c. 39, to remove doubts, confirms my contention, because it leaves the 1st and 2nd Vic. to its operation in the colonies, except as “to moneys arising from the sale of crown lands which might have been lawfully disposed of” if the Civil List Acts of William IV., c. 25 and 1st and 2ndvic.c. 2, had not been passed, and expressly provides that the surplus not applied to public purposes in the colonies “shall be carried to, and form part of, the said consolidated fund”[11]. The doubt‑removing act is limited to the revenue from the sale of crown lands; it leaves the hereditary revenues from other sources, and the prerogative powers of the crown, in the same position as before, in all the colonies. When in 1847 the Canadian Parliament desired to make some changes in the restrictive provisions of the Union Act, and passed an act for the purpose, what happened? It was reserved, and as it was expedient to pass it—the object not being contrary to the spirit of the compact between the Imperial and Colonial Governments—the law officers of the crown found that it would be necessary to repeal certain clauses of the Union Act before the Canadian Act could become law. This was done, and the Canadian Act was appended as a schedule, and became, therefore, an Imperial enactment, unalterable by colonial legislation.
In the case of William IV, and in the case of her Majesty (and those acts are still in force in Great Britain, and as far as they apply are in force in the colonies of Great Britain) we find that parliament expressly reserved to the sovereign, or in other words to the crown, the right as against parliament and the government of the day, in respect of these revenues, to grant escheats of this description to relatives of the deceased—to those who were not, under strict construction of law, entitled to enforce their rights as legitimate heirs. That right to evince the benevolent disposition of the crown towards the natural relatives of a deceased person who may have left his property subject to escheat, is reserved in express terms, and, in order to prevent any possibility of misconstruction, it is reiterated ex majori cautelâ that the reservation is made to the intent and for the purpose of enabling the crown independently of those acts, and of the disposition that was apparently made of all the hereditary revenues, to deal with this particular class of revenues as it should please the Royal will. The same discretion and power must be held to remain in her Majesty in respect to these revenues in the colonies, for that act, 1st and 2nd Vic., c. 2, relates to the colonies and foreign possessions of the crown, as well as to Great Britain and Ireland.
I now come to the British North America Act of 1867 The relative rights and powers of the Federal and Provincial Governments and Legislatures, and the qualified, conditional and temporary assignment or loan of the hereditary revenues—not prerogative rights, or even “lands”—but “revenues,” the “net produce” of which was to be “paid over” after all proper deductions (3 and 4 Vic. c. 35, sec. 54) to the consolidated fund of old Canada, have to be ascertained and considered in construing the Union Act of 1867. We must determine the effect and meaning of the provisions of the act of July, 1867, by ascertaining the legal and constitutional position of the subject-matter immediately before the passing of that act.
It is to be observed, in the first place, that the new legislative authority for the dominion is declared to be a “Parliament”—it was only a “Legislative Council and Assembly” before—and the “Queen” is eo nomine declared to be a part of that Parliament. It “consists” of the Queen, the Senate and the House of Commons. But she is not a part of any other corporation or legislative body under that act. The great powers of government are given to the Parliament of Canada, and only limited, enumerated, and definite powers of legislation, on local and municipal subjects, are given to the local assemblies.
The Lieutenant Governor is not the representative of the prerogatives of the crown in this country, except in a very limited sense. The Lieutenant Governor is appointed by the Governor General as other officers are appointed by him. He is a high official; he has important functions unquestionably, but among them is not included the power of representing the prerogative rights of her Majesty in respect to her hereditary revenues. As Lord Carnarvon stated in his despatch of January 7th, 1875, written under the advice of the law officers of the crown in England, he is a “part of the colonial administrative staff.” He is, therefore, subject to the direction of the Governor General, who is advised, in respect of questions of dominion import, by the responsible ministers of the crown in this country. He is appointed by the Governor General, not by the Queen; he is commissioned by the Governor General, not by the Queen; he is instructed by the Governor General, not by the Queen; he is subject, to dismissal, under certain circumstances, by the Governor General; he is not subject to dismissal by the Queen. And, if I am permitted to refer for the purpose of my argument and in illustration of my case to a recent political event, he is subject to dismissal in consequence of a vote of censure by the Parliament of Canada, even against the opinion, so far as it could be ascertained, of the Governor General himself. The correspondence in that case and the action that followed clearly prove that my construction of the act in regard to the office of the Lieutenant Governor, is the true one. We have not had a judicial decision upon the point, but, so far as executive action and official opinion are concerned, that case proves that the Lieutenant Governor is regarded as a local officer appointed by the Governor General, and in no manner subject to direction, approval, or disapproval by the Imperial authorities. He is to all intents and purposes a local colonial officer and nothing more. If that be so, it is absurd to suppose that he can, by virtue of his office, in any manner undertake to represent or exercise Imperial functions, or dispose of the revenues resulting from the exercise of the prerogative rights of the crown. If you could find in this act language which showed a clear intention on the part of the Imperial Parliament for convenience, or for any reason of state, to clothe this officer, appointed by the Governor General, with authority to deal with this particular property or revenue, I would in that case admit, as the power of the Imperial Parliament is supreme, that he was properly exercising the functions of his office in collecting and disposing of the revenues resulting from the enforcement of the hereditary right of the crown in the case of escheats. From the evidence of intention which we find in the act itself, from the judicial commentaries and expositions it has received, from the action of the Imperial Government through the Secretary of State, from the action of the Governor General in this country, from the action of our own Parliament—from all these, I contend, it is established that the Lieutenant Governor is a local and not an Imperial officer, and can in no way intervene in proceedings for the recovery of escheats.
By sec. 102, “all duties and revenues” over which the previous provincial legislatures had power of appropriation (except what is otherwise disposed of by the act) are to constitute a consolidated fund for the public service of Canada.
But for the exception in this clause there would be no doubt, I apprehend, as to the present position of the hereditary revenues of the crown in Canada. It would be clear—beyond question—that these “revenues” as well as the “duties” arising under existing laws from various sources, were transferred to, and intended to form part of the consolidated fund of the dominion, for the purposes of the dominion, and that conclusion would be all the more evident from a consideration of the special object for which this transference was made. It was made in order that the new government should have the means from the same sources as before, and in pursuance of an existing contract, of providing for certain services, for certain salaries, and for certain public establishments. That duty is transferred to the dominion. The Imperial act having cast upon the dominion the burden of these services, it would be only reasonable and natural to suppose that the framers of this act would provide the dominion with the means, from the same sources as had previously furnished them with funds to meet those charges. But the excepting clause, according to some authorities, raises the question involved in this case: “Except such portions thereof as are by this Act reserved to the respective legislatures of the provinces.” I call your lordships’ attention to the peculiar language of that clause. The act does not say that any revenues are reserved for appropriation by, or subject to, the control of the provinces or their local governments, but a portion is reserved to the “legislatures” of the provinces. The legislatures are the only power, newly constituted, to which this reservation is made; therefore, it is a legislative power. Their power of disposition or control is derived exclusively from their functions as a legislature. They must pass a law; they must dispose of whatever is under their control by an act of legislation. It is to them in their corporate, legislative capacity, that this power of control is given by the Imperial Act. When we look at the section of the act which assigns to them their legislative powers, we do not find, I contend, any sufficient words to convey to them the power to intermeddle with, or dispose of the hereditary revenues of the crown.
Now, I cannot understand the reasoning of the learned judges who say that by the word “land,” in the 109th section, the absolute estate and prerogative right of the crown—always theretofore reserved—in the waste lands of the crown have been granted to and vested in the provincial legislatures. It is clear, from the qualifying expression “belonging” to the provinces “at the Union,” that nothing more was intended to be given to the new, than had already been given to the old, provinces. Therefore, we come back to the proposition I have endeavored to establish, viz, that under the Union Act of 1840 the Queen’s prerogative right remained intact, and that neither the 109th nor any other section of the act of 1867 has infringed upon or divested it. If we look at the 92nd section, which enumerates and limits the legislative powers of the province, we find these significant words: “The management and sale of the public lands belonging to the province, and of the timber and wood thereon.” If it had been intended to extinguish the estate or title of the crown, and to vest in the legislature the absolute dominion over, and fee simple in, the public lands, why specify “the timber and wood thereon?” In this grant of legislative power every word suggests agency, trusteeship, and limitation; not absolute ownership or undivided authority.
As this is a question of interpretation and intention, and as we sometimes derive great advantage from the light which is thrown upon doubtful words and phrases in acts of parliament—though I see nothing obscure or doubtful here—by ascertaining the views, opinions, and intentions of the framers of those acts, and as the estate or title which “belonged” to the Province of Canada “at the Union” of 1867 is the estate or title which belongs to Ontario now with certain qualifications, I direct your lordships’ attention on this point to the explanations of Lord John Russell, who introduced and carried through parliament the Union Act of 1840. You will find the report in the Mirror of Parliament for 1840[12]. Lord Stanley, who had previously held the office of Colonial Secretary, though at the time in opposition, approved generally of Lord John Russell’s Union Bill.
We find there a commentary upon the land and revenue clauses of the act of 1840, by those who framed them, and explained their meaning to parliament. It supports my contention that, as Lord Stanley puts it, “it is not the crown lands themselves, but the revenue arising from them” that was transferred to the Canadian Legislature. It results from this view of the reservation of the prerogative right of the crown in the waste lands of the crown, under the Act of 1840, that the same right subsists, and was not intended to be granted to the local legislatures by the act of 1867. The judgment of the Court of Queen’s Bench for the province of Quebec, in the Fraser escheat case[13], to which I have before referred, and on which the respondents also rely as a decision in their favor, is based on the assumption that the word “royalties” in the 109th section of the British North America Act transfers to the provinces the hereditary revenues accruing from escheats. I admit that these revenues did belong to the old province of Canada, subject to the right of her Majesty to quit claim to or release them in favour of relatives, as I have already pointed out. But the “net produce” of these revenues was all that was granted by the act of 1840, and the 102nd section of the act of 1867, gives these revenues to the consolidated fund of the dominion, in express terms. The word “royalties” has no reference to these casual revenues, but to the rents or dues reserved for mining rights in the Maritime Provinces. “It is usual for the crown to reserve a royalty on minerals raised from waste lands in the colonies”[14]. Not only is this clear from the associate words, but the next sentence shows that such a construction was never contemplated by the framers of the act, “and all sums then due or payable for such lands, mines, minerals or royalties shall belong to” the provinces. What “sums” could possibly be then due or payable “for” the prerogative right to inherit, as ultimus hœres, the property of persons dying intestate and without heirs? Are the jura regalia of the crown things, commodities, that can be sold in the market place, and for which “sums” of money may be “due or payable” by private persons? Surely not; yet, my lords, the respondents quote the case of Dyke vs. Walford[15] to Support that proposition, for they say royalties here means the same thing as jura regalia there.
The Ontario Court of Appeal, though arriving at the same conclusion as to the jurisdiction, would not base their judgment on the word “royalties,” as the Quebec Court had done, but discovered an intention to transfer—I will not say, to sell—the prerogative to the local legislature, in the words “all lands.” But they overlook, or do not attempt to construe, the proviso at the end of section 109. The grant of “all lands,” etc., is subject expressly to “any trusts existing in respect thereof, and to any interest”—that of the sovereign, by virtue of her prerogative, as well as any—“other than that of the province in the same.” This proviso qualifies the whole section. Private as well as public rights had to be considered in handing over the administration of the public lands to local legislatures. Sales had been made and rights acquired, which it became necessary to protect against unjust treatment by an arbitrary majority in legislatures which did not then exist. That proviso was intended to give a legal remedy against these new powers if they attempted to take away, or affect injuriously, the existing rights of any of her Majesty’s subjects in the old provinces. I trust this court will not ignore the proviso.
The next point urged by the respondent, and recognized by the Ontario Court as a correct inference in law, from the word “lands,” is, 1st, that the estate, or interest of the crown in escheats in Canada, is a “reversion,” and, 2nd, that a grant of lands without more, in an act of parliament, conveys this reversion. I have tried in vain to find any authority for this doctrine as applied to lands in a colony. The respondent, in his reasons against appeal, mentions no cases. Remembering the commendation of my legal preceptor in favor of an old book, which he said was the great storehouse of cases on the law of real property in England, especially concerning tenures, I resorted to Touchstone, and this is what I find there:—
“Grant of an estate in being by the king must recite the previous estate or else the grant of the new estate will be void[16].”
“Misrecital of previous estate in a deed may pass the reversion in the case of a private person, but will be void in case of grant by the king[17].”
“By grant of land in possession reversion may pass, but by grant of reversion land in possession will not pass.” But this applies to private persons[18].
In Cruise’s digest[19] I find it laid down that “where a reversion is vested in the crown it could not be barred by common recovery, which barred reversions and estates tail,” and again, “the crown could not be deprived of any part of its property by ordinary conveyances which would divest subjects. An act of parliament expressly declaring that the reversion shall be divested out of the crown is necessary.” It is clear from all the authorities that nothing will be inferred or implied against the rights of the crown. The reigning sovereign cannot even abandon a prerogative unless authorized by statute to do so[20]. In the case of Mines[21] it was laid down, and has been followed as good law ever since, that if the king granted “lands and mines therein contained” it passes only certain mines, and not mines of gold and silver. The grantee will not take anything not expressly mentioned[22]. And as it is an equally well established rule that no act of parliament can affect or take away the crown’s prerogatives, unless by clear and express words, I do not see any justification in law or logic for the claim of the respondent in this case that the words “all lands” in the 109th section of the B.N.A. Act, even if they were not explained and limited by the succeeding words, include and were intended to grant away forever the prerogative right of the crown, whether you call it a royalty, a reversion, or a caducary succession.
The construction that is suggested respecting the Union Act of 1867, would utterly destroy the object and purpose of that reservation of authority in her Majesty with respect to escheats in Canada. It would place that kind of property which is expressly reserved by the crown in England, under the control absolutely of whom? Of the local assembly, the provincial representatives of the people. And how are they likely to exercise that control? What does this very example show of the disposition of such a body? In this case about $150,000 worth of private property belonging to the deceased, Mr. Mercer, accumulated by himself, not resulting from free grants or anything of that kind which might, perhaps, have justified a feeling in the public mind that his property ought to revert to the public for public purposes—but the private earnings and accumulations of this person, are taken from the possession of his own son by the local government, by the vote of a bare majority of the local legislature, and appropriated to public uses. The local officials, with a voracity that is revolting, seize it for the purpose of gaining credit to themselves with their partizans, and, ignoring the moral, and, as I contend, the rightful claims of the admitted son and four grand-children of this deceased person, appropriate their patrimony to the use of abandoned women, to the erection of an asylum, a reformatory for prostitutes—and, adding insult to injury, with cruel sarcasm, they give this reformatory the name of ANDREW MERGER! Now, my lords, I say that, looking through these Imperial statutes and the reports of transactions of this kind in Great Britain, we find that her Majesty has never acted in that spirit or in that manner in dealing with escheated property. I remember a case, and no doubt some of your lordships have met with it, which happened two or three years ago in England, where a person was killed by a railway accident. He happened to be without heirs. His estate consisted of personal property. I think he lived in the city of Bristol, and the property was taken possession of as an escheat of the crown. The money was, by order of her Majesty, appropriated for some public purpose in the town in which the man had lived. It was appropriated for the benefit of his neighbors and friends. Under the provisions of the Civil List Act, and under the influence of those moral considerations which have induced the crown to act leniently and unselfishly in matters of this kind, the money was given in that case, not to relatives, because the man had none, but it was devoted to public purposes in the town in which he had accumulated his property. It was not permitted to reach the public treasury. I refer to that case as showing the spirit which prevails, and the policy which directs in the disposition of such properties in England, and that the representatives of her Majesty in this country will, presumably, exercise this mild and generous prerogative power in dealing with properties of this kind which legally come to the crown in Canada. The argument of convenience and inconvenience is, I perceive, made use of by the respondents in this case, as if some weight ought to be given to it in a court of law. I think, therefore, I am justified in directing your attention to the public policy which is involved in this question, in view of the uniform practice of the Imperial authorities. At all events, it will operate to this extent—that it will cause your lordships to look into the matter with great care to discover the meaning and purpose intended, and the conditions imposed, in the transfer of these revenues to old Canada in 1840, and will sustain my contention that they were transferred to the jurisdiction and control of the Dominion Parliament by the act of 1867, under the same conditions. Now, I will call your lordships1 attention, at this stage, to a case decided in this court, which involved the question of authority to exercise the prerogative right of the crown under our present constitution: I refer to the case of Lenoir vs. Ritchie[23], and, although it bears upon another branch of the prerogative, yet the doctrines propounded, and cases cited by some of the learned judges who delivered judgments in that case are, I think, doctrines and authorities which are applicable to the question which is now under your consideration.
See also Chilty on prerogatives[24]. In looking over the cases bearing upon this question, I have met with a judgment pronounced by the Judicial Committee of the Privy Council in the case of Theberge vs. Landry[25], in which that doctrine is reaffirmed, although the court in that case distinguished as to the subject-matter, and refused to advise the exercise of her Majesty’s prerogative right to hear appeals. As it is the latest decision on the point, by the highest court in the empire, I ask your lordships to make a note of it.
This is a judgment upon the British North America Act, and supports my contention that when I have shown that the prerogative as to escheats existed in this country prior to 1867, precise words must be found in the Union Act of 1840 and in the Confederation Act of 1867 to take away that prerogative. Now, my lords, there are no such words in either of these acts. There is another point with reference to the Act of 1867: The 91st section of the B.N.A. Act declares that:— “It shall be lawful for the Queen, by and with the advice of the Senate and House of Commons, to make laws for the peace, order and good government of Canada in relation to all matters,”—no more comprehensive language could be used than this, but there is one exception—“to all matters not coming within the classes of subjects by this act assigned exclusively to the legislatures of the provinces.”
Now, my lords, it is the plain meaning of the language used by the Imperial Parliament in this section, that the Dominion Parliament should have, full, complete, and, so far as a subordinate legislature can have, absolute authority to deal with every matter of legislation in Canada, except those special matters that are assigned to these local bodies. The whole field of legislation, the whole scope of legislative power, is placed in the hands of the Dominion Parliament, and may be exercised over the lives, liberties and property of the people of this dominion, except in those special cases in which this subordinate sectional legislative power is conceded to the local legislatures. And to impress still more strongly and clearly on those who are to read this act, and the courts which are to interpret it, that they are not to question this general exclusive authority of the Dominion Parliament to legislate upon every matter concerning the people under its jurisdiction, except in those special cases in which certain questions are expressly assigned to provincial authorities, it is provided:—
“And for greater certainty, but not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that, notwithstanding anything in this act, the exclusive legislative authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated.”
And certain subjects are then enumerated for the pur- pose of explanation and suggestion to people about to be placed under a new constitutional system. It might have been inferred from the enumeration of excepted matters, if this first enumeration had been omitted from the act, that the powers of the general parliament would after all be largely limited; but with this enumeration they would see at a glance the great multiplicity of matters upon which the Dominion Parliament have unquestionably a right to legislate. And for fear that the specification of particular powers might, according to a well known rule, operate as a restriction of the Dominion Parliament, the following is added:—
“And any matter coming within any of the classes of subjects”—not the particular subjects, but the “classes” of subjects—“enumerated in this section shall not be deemed to come within the class of matters of a local or private nature, comprised in the enumeration of the classes of subjects by this act assigned exclusively to the legislatures of the provinces.” Although in the enumeration of local powers it might seem that some of those assigned to parliament were included, you are not to include them. The very first subject over which the Dominion Parliament is given exclusive authority is “the public debt, and,” as I interpolate, the public “property.” “The public debt and property” must be read as if the word “public” had been inserted before “property,” because no other property can be intended. That is the power with which the Dominion Parliament is endowed. It includes the “public property” of every kind which is not expressly assigned to the provinces. The 102nd section, as I have pointed out, covers everything so far as duties and “revenues” are concerned. The power to manage and sell the waste lands which were under provincial jurisdiction at the union, and collect the moneys or “sums” in respect of previous sales which were then uncollected, were under the 109th section, given to the provinces. So there is no difficulty about that. Now, that power of legislation conferred upon the Dominion Parliament by the 1st sub-section, taken in connection with the general authorization in the 91st section, and taken in connection with the 102nd section relating to “all duties and revenues” seems to me, my lords, to give to the Dominion Parliament, beyond any question whatever, the right to deal with the subject-matter involved in this case, unless it is found to have been conveyed or transferred to the local legislatures by some other section. With reference to that contention, I shall have to examine with some detail the judgments, in the first place, of the Queen’s Bench of Lower Canada, where this point was first decided. In the Fraser case to which I refer, it appears that in the first instance the question came before the learned judge who now so worthily fills his place upon this Supreme Court Bench Hon Justice Taschereau. The judgment given by him in that case affirmed the jurisdiction of the Dominion Parliament and the Dominion Government in matters of escheat. That was appealed against, and the case came before the Court of Appeal of Lower Canada. As I pointed out, the learned chief justice of that court admitted that he found nowhere in the B.N.A. Act of 1867, any direct and express transfer of lands or revenues escheating to the crown in Canada to the local legislatures.
[The learned counsel then reviewed the arguments and positions taken by Chief Justice Dorion in the Fraser case, and of the judges of the Court of Appeal of Ontario in the present case.]
Jurisdiction over every possible subject of legislation is, in general words, assigned to the Dominion Parliament, and the exception, so far as it extends, is something taken or carved out of that power, and is all that is given to the local legislatures. The entire legislative authority, as it existed in the various provinces before confederation, was dealt with by the Imperial Parliament. No one can doubt the power of the Imperial Parliament to have deprived Canada (so far as an Act of Parliament could do it) of representative government altogether. It might have converted, or reconverted, our provinces into crown colonies, with some new experimental system of colonial government. Probably it would not have been well received. They might have found Boers in Canada, as well as in South Africa; but, as a matter of law—as a matter of argument before a court of law—I contend that the whole subject was completely within the control of the Imperial Parliament. They could assign such powers of legislation for the future as they thought fit without respect to the “rights” of the past. There were no rights in the question which a court of law can recognize. The people of the four provinces, united together in the new form, were endowed with even greater rights and larger powers than before, but the legislative control and direction of affairs were placed under two distinct legislative bodies. The greater power was that of the Dominion. The full and complete exercise of that power was vested in the Parliament of the Dominion, but certain geographical distinctions were retained, and the provinces were allowed, under the machinery provided in the act, to legislate upon certain specified local subjects as a matter of convenience. Now, I cannot understand what the learned judge (Burton) means when he speaks of political rights which remained in, or belonged to the Province of Ontario. What rights could Ontario have had? There was no such political entity or corporation; there was no such province in a legal sense. It was a geographical expression. It is true you will find that our statutes from 1840 down, were applicable, some to Lower, and some to Upper Canada. The old distinction was kept up to limit the operation of certain statutes in consequence of local laws that had previously existed in the provinces. So far as the people of Lower Canada are concerned, I admit that from the peculiar circumstances under which the French inhabitants of Quebec were dealt with after what the English call the “conquest,” and they call the “cession,” certain privileges and rights were reserved or secured to them by a so-called treaty. But those rights were not secured to Quebec according to her present limitary lines. They were conceded to the French population who were scattered at that time over the whole northern part of this continent. The cession was not restricted to the Province of Quebec as bounded at present. These boundaries were established under English jurisdiction; the French never bounded their province on the north; therefore, when rights were reserved to the French inhabitants of this colony, they extended to the people, and not to any geographical or territorial circumscription or boundary. So, the pretence that there ever was any grant or reservation of particular rights to British immigrants who came to Canada since the cession, and are now living within territory formerly part of the Province of Quebec, is altogether unwarranted in the history or reason of the case.
Is escheat a reversion? The doctrine that it is a reversion in the ordinary sense, seems to be relied on both by Mr. Justice Burton and Mr. Justice Patterson, and it is also stated in the reasons against appeal, by the learned gentlemen who prepared the case, that they rely upon that doctrine of reversion. I am not going to occupy the attention of your lordships with a discussion upon tenures, because it seems to me the feudal relation is not involved in the argument here. I did go into that question at some length before the Court of Appeal. I had carefully examined the authorities, because it was a matter of some historical as well as legal interest. The origin of feudal tenure, the mode in which property was transferred under that tenure, the relation of lord and tenant, the rights of tenants, and the successive changes made by parliament as to these rights; first, their right to sell; secondly, their right to devise by will, destroying thereby the right to escheat in the lord to a great extent; and, lastly, the right of the crown in the absence of a mesne lord: all these questions were and are very interesting as a historical study, but it seems to me they have very little weight in this discussion, because in Canada we have a tenure, the character, incidents and bearings of which are well understood even by laymen, from the frequent discussions and expositions in the courts—I mean free and common socage. This was established in Upper Canada in 1791—and we have to deal with this question in the light of doctrines applicable to the tenure of free and common socage. I contend, as a matter of plain, elementary law, that it is neither in accordance with modern decisions nor the reason of the thing, to say that when the crown grants waste lands in a colony to private persons, or authorizes a colonial legislature to grant them, the rights of the crown as ullimus hœres, or, if you please, the reversionary right of the crown arising from escheats, is granted at the same time. That sovereign right is not granted; that is the “seigniory” which is always reserved. Let us suppose it to have been granted once in a particular case, and that a subsequent owner happen to die intestate and without heirs, what becomes of that seigniory? The crown having granted the reversion cannot resume it. It has ceased to exist. Therefore, the reversion here is not that kind of reversion which lies in grant. Lord Mansfield said, in the case of Burgess vs. Wheate[26], that it was a caducary succession, a “sort of reversion,” that is to say, it reverted, it came back to the lord or king, but in contemplation of law it was not the reversion which is granted, or may be granted by the owner of a prior estate, if he uses language to show that he intends to grant the reversion. It is not a part of the inheritance, it is something which springs into existence by accident, and is no part of the original estate or fee, which is always vested in some person, and may descend successively through unending generations. Therefore, I contend that the judges of the lower courts treating it as a part of the inheritance known as a reversion, have entirely mistaken the fundamental principle on which the doctrine of reversion is based. In the colonies that now form part of the United States, as well as these provinces, and also in India, the crown has always been treated as the ultimate heir, to whom property descends or passes that is vested in no one else, and it is by virtue of that doctrine that this property fell to, and is now vested in her Majesty. It is not vested under any doctrine of reversion found in the old books with reference to feudal tenure. Perhaps it will be as well at this point to give your lordships the authority on which I rely, and which, in my judgment, is conclusive. See Cruise’s Digest[27].
That expresses very clearly the doctrine with respect to title by escheat since the abolition of military tenures. In New Brunswick it was held, on the authority of the law officers of the crown, that the wild lands of that province belonged to the King, jure coronæ, and were disposable by the representative of the crown, and not by the provincial legislature[28]. I hold that the waste lands in Canada are still crown lands in the same sense, and that only the revenue has been granted to the provinces, and only “the management and sale” entrusted to their legislatures. The pretence that this land, which has come to the crown by the accident of escheat, was included or contemplated in the word “lands,” as used in the 109th section, cannot be sustained as a matter of law, in my humble opinion, for a single moment. That it was not conveyed or transferred under the word “royalties” I hope I have succeeded in convincing your lordships. The learned judges of the Court of Queen’s Bench were misled by Brown’s Law Dictionary. Their attention was not directed to the use of this word in the provincial statutes. Upon this point I would direct your lordships to an opinion expressed in another place by a distinguished lawyer and politician. I refer to the Premier of this Dominion, who was one of the framers of the B.N.A. Act. It will be found in the House of Commons debates for 1880, page 1185.
The opinion of a distinguished statesman, and one who has been conversant with legislation and political affairs in this country for a great many years; who was chairman of the convention which planned, elaborated, and finally succeeded, with the co-operation of the Imperial Government, in carrying through the Imperial Parliament the Confederation Act—that is an opinion which I venture to say is entitled to great weight even in a court of law. My learned friend who, as Minister of Justice, acquiesced in the decision of the Quebec Court, will contend, I presume, that their interpretation of the word “royalty” is according to the intention of this act, or that because the word happens to be found there, your lordships may by a large construction make it cover the royal prerogative of escheats. I submit that even if the word is capable of that meaning it cannot be held to include the hereditary revenue from escheats. It refers to the rents or charges for mines in Nova Scotia and New Brunswick. There were none reserved in Ontario and Quebec. Those who are familiar with the preliminary stages of the bill, are aware that the word “royalties” was inserted after the first draft, at the suggestion of gentlemen from Nova Scotia and New Brunswick, lest these rents or sums payable to the crown under the name of “royalties” should be held not to be included; and thus the word was added. By the well known maxim noscitur a sociis, you are to interpret words of this kind by reference to those with which they are associated; and according to the doctrine also that the prerogative rights of the Crown, cannot be conveyed or granted unless by express words, you must be satisfied that it was undoubtedly the intention of the Imperial Parliament to grant them in this case. Unless that is clear, you must give a limited signification to the word “royalty.” The court in Quebec based their judgment principally on that word. The court in Ontario founded their judgment upon the doctrine of reversion, being of opinion, as we must assume, that it was the intention of the Imperial Parliament to convey to the provinces by the use of the word “land” this so-called reversion. That construction, I submit, is in direct conflict with the old, and heretofore, unquestioned doctrine with respect to the prerogative rights of the crown in England and in the colonies. In Theberge vs. Landry, the doctrine that her Majesty’s prerogative in her colonies must not be infringed, must not, in any manner be affected by any Act of Parliament, except by precise words, is reaffirmed by the highest court in the empire. I contend that even her Majesty, without the express sanction of parliament, cannot grant away the hereditary revenues of the crown from her successor. In all the acts relating to that subject since parliament was established, there is evidence of extreme care when dealing with hereditary revenues of the crown, and prerogative rights of the crown, to preserve them intact for the successor; otherwise the crown would not be worth fighting for.
No subordinate power can touch the prerogative. If the Parliament of Great Britain should choose to turn the sovereign out and convert the country into a republic, as once happened, I suppose parliament could do it, but not without the consent of the sovereign. With that assent parliament is supreme. But, I apprehend, even my learned friends will agree that such an act must contain words which clearly evidence the intention of transferring her Majesty’s prerogative to the legislatures of the provinces. My lords, there is nothing to evidence that intention here. It is only an inference at best, and that inference is contradicted by all the expressed objects of the act.
Surely it is a trifling thing to allow the Queen’s representative in this country, as a matter of authority, as a proof of the existence of that authority, to dispose of any properties which may, by the death of the existing owners, be escheated. It is a light burden, and my learned friends wish to deprive us, not only of the fact, but even of the sentiment, which is inspired by the existence of the fact, and to cut the last—almost the last—link which binds Canada to the Mother Country. I say it would be a most fatal result if it should turn out that the Imperial Parliament meant to extinguish the sentiment of loyalty, where it has hitherto inspired to noble deeds, by removing forever from the eyes of our youth this sign, this badge of the royal authority. Certainly it is not the expressed meaning of Parliament. I am satisfied it was not the intention. My lords, if such an intention had been avowed, that act would never have passed the Parliament of Canada, much less the Parliament. of the Empire. My learned friends must go that far. They must admit that the surrender is for all time; that this act is perpetual; that it has no limitation; that it is a complete and final transfer to the subject, of the power of asserting the prerogative rights of the crown in Canada. They must say that the crown of England is no longer entitled to claim any rights whatever in the casual or territorial revenues which previously did accrue and belong to that crown, in Canada. I deny that there is a word in the act to support that construction. I leave the case there. It is an important one. Its importance is not by any means to be measured by the amount of money involved, or the private interests directly concerned. it is a question whose decision will settle the relative powers and rights of these two legislative systems in this country. It is the first case, so far as I have observed in looking through the judgments of this high court, in which the question of prerogative jurisdiction has been squarely presented. Though I am here representing private parties only, I have felt it my duty to draw your lordship’s attention—perhaps to a greater extent than would be warranted in an ordinary case—to the public interests involved in this case,
Mr. Blake, Q.C., for respondent:
While entirely agreeing with the learned counsel on the other side that the importance of the case far outweighs the amount involved, I am unable to agree with them when they claim that upon the decision of this case rests the ultimate fate of the scheme of Confederation. I fail to perceive how the connection of this country with the empire could depend upon the question, whether the property of an inhabitant of Ontario or Canada who died without heirs was to be disposed of by the Dominion Government or by the Provincial Government. If the connection depended upon that, it is hardly worth retaining.
I will first refer to the position of the provinces before the union. This right of escheat, which is improperly called a prerogative right, is an incident of tenure in socage—a species of reversion. This right of escheat fell to the lord; and not to the crown, unless the crown happened to be also the lord of whom the land was held.
This view is confirmed by 2 Cruise’s Digest[29].
See also in Attorney-General vs. Sands[30].
If a lord to whom the land reverted might be himself a subject, an escheat could not be called a prerogative right.
This was the old law.
In 1791, by the Imperial Act, 31 Geo. III., c. 31, the legislature of the province of Upper Canada was empowered to make laws for the “peace, welfare and good government” of Upper Canada; but there was a limitation as to the general power of making laws in any manner relating to or affecting “his Majesty’s prerogative touching the granting of waste lands” of the province, with regard to which no laws were to be made except with the sanction of the Imperial parliament. This limitation is to be found in section 42, and it is clear that if this proviso had not been inserted, the legislative body could have made a law affecting the prerogative of the king touching the granting of the waste lands of the province. By the 43rd section, the most pertinent to this question, all lands in Upper Canada were to be held in free and common socage, and legislative power was given to make “alterations with respect to the nature and consequences of such tenure of free and common socage.” Now, though this tenure involved the right of the crown as ultimate heir, it is as clear as day that the legislature could have altered that tenure, and such legislation would necessarily have interfered with the crown’s right in respect of escheat. Such legislation would, no doubt, have been subject to disallowance by the crown, but in this respect only were provincial rights curtailed. The provincial legislature could not, without the sanction of the Imperial parliament, have interfered with the prerogative with regard to “waste lands,” but they could deal with the subject of escheat in regard to all other lands. The act of union, 1840, 3 & 4 Vic., c. 35, gave the same powers and had the same reservations, and re-enacted section 42 of Geo III., c. 31.
By the act of 1854, 17 & 18 Vic, c. 118, “An act to empower the legislature of Canada to alter the constitution of the legislative council for that province, and for other purposes,” section 42 of the act of 1840, 3 & 4 Vic., c 35, was repealed; so that so far back as 1854 the only remaining prerogative of “granting waste lands” was abolished, and full power was given to the provincial legislature to deal with this] prerogative of granting waste lands, and with it power over escheat as respects such lands.
If it is found that by the acts of 1791 and 1854 absolute legislative power was given to the local legislature to deal with this subject matter, we approach without difficulty the distribution of legislative powers under the B.N.A. Act. But before considering the B.N.A. Act it is necessary to refer to the act of 1852, 15 & 16 Vic., c. 39, relied on by the other side. That act was passed “to remove doubts as to the lands and casual revenues of the crown in the colonies and foreign possessions of her Majesty,” and allowed those revenues and lands to be lawfully appropriated for the benefit of the colonies in which they existed. By the first section of the act it was declared, that “the provisions of the said recited acts in relation to the hereditary casual revenues of the crown shall not extend or be deemed to have extended to the moneys arising from the sale or other disposition of the lands of the crown in any of her Majesty’s colonies.” The phrase “hereditary casual revenues of the crown” is a general expression, used in connection with the words “sale or other disposition of the lands of the crown,” and would include all lands, whether waste lands or lands falling to the crown by escheat.
Then in a distinct phrase the act speaks of the moneys arising from the sale of the land. Here again is a clear legislative declaration that the subject-matter of the lands should hereafter be left under the exclusive control of the local power. And surely it was never intended, in the ever widening and deepening current of liberty of the colonies, that the management of these lands should continue to be under the control of the Imperial parliament.
Then again escheat is not a revenue, but a casual profit. What is revenue is the fruits of the escheat. Nor were escheats ever looked upon as revenues in the sense argued, for a custom had grown up to hand over the property to the connections of the person who had died; and the complaint here is that the Local Government have dealt differently with the fund, and that the whole was not given to the natural son of the deceased. If that be so, how much force is there in the argument that this fund was considered as a fund for paying salaries of the judges, or that Canada must depend on these revenues to pay the civil list?
It is also contended that these sums fell into the consolidated revenue fund; but on the 1st July, 1867, that fund terminated, for, as the learned counsel for the appellant had to admit, the legislative power over all lands was by the B.N.A. Act vested in the local legis- lature,not conditionally but absolutely, just as legislative powers were given to Canada over other subject-matters, not for the life of the sovereign and five years after, but for ever.
The principal point, the proper construction of the B.N.A. Act, remains for consideration. There can be no doubt that the act should be construed with due consideration to the condition of the different parties who entered into the compact of confederation.
Here when it is intended to grapple with the conjunction of four provinces and the establishment of separate legislative powers, and when it has been attempted to deal with all these subject-matters in a few printed pages, it would be a fatal error to stick to the letter of the act. It is the duty of this court to look around in order to get at the proper construction to be put on the different paragraphs of the act. The rule of general intent and the rule of public convenience are of vital consequence in dealing with this act.
There are some points which seem tolerably well admitted.
1. We need to know what were the rights of the different provinces before the union, because it is necessary to apprehend where these rights have gone If it is found that a subject-matter was before confederation a proprietary right of the provinces, it must be found existing in one of the identities which were created. There was no intention to surrender what had been granted by England to the provinces before confederation, and all proprietary rights existing before confederation must after confederation exist in the government either of Canada or the provinces.
2. It was the intention that each of the provinces should stand upon the same footing as to constitutional as well as proprietary rights, and what was done for Nova Scotia and New Brunswick was to be done for Quebec and Ontario. It is only because Ontario and Quebec had to be born, so to speak, that there are these different sets of powers. If that leading principle of construction is applied, all these sections can be made to harmonize in such a way as to give no more to Ontario and Quebec than to Nova Scotia and New Brunswick, Of course, it is not meant that provincial tenures were to be assimilated, but what is meant is that the power to deal with them was intended to be the same in each of the provinces.
If confederation is so regarded, the construction of the B.N.A. Act involves the question: What is the real nature of the union? One, section cannot be taken by itself, but all must be read together in order that, by a broad, liberal and quasi-political interpretation, the true meaning may be gathered. The preamble recites the desire for federal union, etc. Then there are some curious provisions. By the third section the provinces of Canada, Nova Scotia and New Brunswick are to be one dominion under the name of Canada; and then they are divided into four provinces. Then the twelfth section provides that “all powers, authorities and functions which, under any act of the parliament of Great Britain, or of the parliament of the United Kingdom of Great Britain and Ireland, or of the legislature of Upper Canada, Lower Canada, Canada, Nova Scotia or New Brunswick, are at the union vested in or exercisable by the respective governors or lieutenant-governors of those provinces, with the advice, or with the advice and consent of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by those governors or lieutenant‑governors individually, shall, as far as the same continue in existence and capable of being exercised after the union in relation to the government of Canada, be vested in and exercisable by the Governor-General, with the advice, or with the advice and consent of, or in conjunction with, the Queen’s Privy Council for Canada, or by the Governor-General individually, as the case requires, subject nevertheless (except with respect to such as exist under acts of the parliament of Great Britain or of the parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the parliament of Canada.” The sixty-fifth section vests the same powers in the Lieutenant‑Governors of Ontario and Quebec, as far as the same are capable of being exercised after the union.
It is clear, then, that whatever might have been done by any governor fell to the Governor‑General of Canada if the subject-matter related to the Dominion of Canada, and fell to the lieutenant-governor if the subject-matter related to the province. There is nothing said of Nova Scotia and New Brunswick, because the 64th section deals with them. The constitution of Nova Scotia and the constitution of New Brunswick were already created, and were simply continued. Sections 64 and 65 should be read together, for if Ontario and Quebec had been existing, section 65 would not have been inserted, and we would have found the lieutenant-governors having the right to exercise all the statutory powers they might have had. If the powers of the lieutenant-governors are interpreted by section 65 alone, see how narrow the words are. The constitution of the executive authority of each province is implied from the fact of its existence before the union. All the provinces are placed upon the same footing, and in Ontario and Quebec, as well as in Nova Scotia and New Brunswick, the power of dealing with all subjects which Nova Scotia and New Brunswick had prior to the union was continued, subject to the alterations made by the act. The consequence is that all the powers existing in the old provinces, except such as are taken away, are grafted upon the new-born provinces of Ontario and Quebec.
Then there is the distribution of the legislative bodies. It is quite true one is called a parliament and the other a legislature, but to both are given legislative powers. There is a general legislative power in the parliament of Canada, but the old province of Canada had larger powers than the parliament of Canada have now, because the power of the Dominion parliament is limited. In section 91 a general phrase is used excluding certain subject-matters: 1st, The public debt and property. The “public debt” is defined shortly afterwards. “Propperty,” also, is sufficiently defined in the act, for all that is given to Canada must be found in the act. Thus Indian lands, Sable Island and particular properties are the properties over which legislative authority is given to the parliament of Canada. True, it is provided that the particulars of 91 shall over-ride the particulars of section 92, but it is nowhere provided that if the two conflict the latter shall be superseded. This section has been wrongly interpreted, for it is not said matters enumerated in section 91 shall exclude matters enumerated in 92.
There is another mode of construing these sections; it is to interpret them as you would an ordinary grant. It is admitted that there is a general pr