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Legislature had no power to make such a law as that passed last session with regard to the Union St. Jacques."*

Mr. Assistant Justice Ramsay whilst holding the Court of Queen's Bench, Crown side at Sherbrooke, in the case of Pope and Griffith, said, in giving judgment dismissing the appeal: "The grounds of the appeal are substantially that the conviction is not supported by the evidence, and that the Act in so far as it prescribes any criminal procedure is beyond the powers of the Legislature of the Province of Quebec.

"With regard to the second of these questions, I have no doubt that it is competent for this Court, or indeed for any Court in this Province, incidentally to determine whether any Act passed by the Legislature of the Province be an Act in excess of its powers. This is a necessary incident of the partition of the Legislative power under the British North America Act, without reserving to any special Court the jurisdiction to decide as to the constitutionality of an Act of any of the Legislatures."

Applying the authorities quoted to the Constitution of Canada and to Canadian Courts, it can hardly be doubted that not only is it within the jurisdiction of Courts of Justice throughout the Dominion to declare Federal or Provincial Statutes unconstitutional, but that it is their duty to decide as to the constitutionality or unconstitutionality of such Statutes in all cases coming before them wherein such question arises or is raised. And as a consequence, if any Statute, or any provision of a Statute, be in their opinion unconstitutional, to disregard such Statute or such provision.

In Canada many of the difficulties which beset Courts in the United States in coming to the universal conclusion now there admitted, are wanting. The supremacy of the Creator of the Constitution cannot be doubted. The impotence generally of Colonial Acts to vary or change the provisions of Imperial Acts, is not only generally admitted but is specially declared by 7 & 8 Wm. 3, c. 22. The power to repeal or alter any of the laws in force in the Provinces at Confederation, by the Parliament of Canada or the Legislature of the respective Province, is expressly denied and refused by s. 129 of the British North America Act, 1867, save according to the authority of the Parliament or of the Legislature under that Act, with the special exception from all power to repeal, &c., of all laws in force enacted by, or existing

* 1 Revue Critique, 119.

under, Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland.

Thus then in Canada the powers of Parliament and of the Provincial Legislatures are clearly defined. If either Parliament or Legislature passes a Statute in excess of its powers, it is an attempt to change a valid existing law otherwise than according to the authority of the Parliament or of the particular Legislature under the British North America Act, 1867. Such Statute iз consequently in violation of an Act of the Imperial Parliament, and of the Constitution, and is void.

But little remains to be added to this article. It is hardly possible to suppose that judges are ignorant of the first duty of their office. As ministers of the law they are bound to administer the law. They cannot administer as law that which is not law; consequently in every case the first duty of a judge is to apply the particular provisions of the law governing the facts proved before him. In so doing, if there are many Statutes applying to such facts, he must single out and apply the one which actually governs the case and reject the others. In Canada with a written Constitution of supreme authority, against which Parliament and Legislatures may dash their Statutes for ever without producing either alteration or change, are we to be told that the climax of absurdity has been reached by our Courts declaring that that which is impossible in the nature of things has been effected, and that a Corporation can repeal its own Act of Incorporation; that judges are bound to accept as law that which is not law-to bow to usurped authority—to declare that to be binding which is illegal, and in lieu of basing their decisions upon the law of the land, that they are bound to ignore that law, and found their judgments on void and illegal Statutes. An example perhaps is the best way of testing the question. The Quebec Legislature passes an Act by which playing marbles on Sunday is created a capital offence. That Act is not disallowed. A person plays marbles on Sunday, is convicted, and sentenced to be hanged. He obtains a writ of error on the ground that the Legislature of Quebec cannot under s. 92 of the B. N. A. Act, 1867, impose punishment other than by fine, penalty, or imprisonment. Would the judges of the Queen's Bench say, that it was their duty to allow the convicted man to be hanged under the provisions of such Act of the Quebec Legislature, made and passed in gross violation of the provisions of the B. N. A. Act, 1867?

WILLIAM H. KERR.

THE ALABAMA INDIRECT CLAIMS.

When during the past year the Treaty of Washington was discussed by the press and the parliament of Great Britain, it was regarded as a fair and honourable solution of the long pending controversies between Great Britain and the United States. The concession of the three ex post fucto rules of neutrality, if mentioned at all, was passed over as lightly as possible; it was strenuously denied that any apology had been made; it was loudly proclaimed that the Alabama claims had been narrowed. down and strictly confined to the measure of the direct damages, and finally, the Canadians were assured that their interests had been faithfully guarded in the deliberations of the Joint High Commission. But within the last three months the indirect claims have reappeared in all the vast proportions of a war indemnity, and the British Government finds itself forced to appeal to the large concessions which it has made for the sake of peace, and even to confess that the claims advanced by Canada for damages arising out of the Fenian incursions have been finally abandoned. Such an avowal is highly important to Canada, inasmuch as she is henceforth reduced to press her claims for satisfaction, not upon the American but upon the British Government. Mr. Gladstone summing up in Parliament the long series of concessions made to the United States, said: "Another concession not undeserving of notice, was that with regard to the claims which Her Majesty's Government might have made in regard to the Fenian invasions of Canada, upon the United States. When the United States demanded arbitration in the case of the Alabama, who could have blamed England if she had said, we grant it, on condition of your going into arbitration on the Fenian claims? Well, this was conceded, and a remarkable concession it was." In what has this remarkable concession resulted? Like all the concessions which preceeded or accompanied it, it has resulted in fresh demands on the part of the United States, more extravagant, if possible, than any hitherto put forward.

The Alabama claims are summed up in the American factum or case, as follows: "1. The claims for direct losses growing out

of the destruction of vessels and their cargoes by the insurgent cruisers. 2. The national expenditure in the pursuit of those cruisers. 3. The loss in the transfer of the American commercial marine to the British flag. 4. The enhanced payments of insurance. 5. The prolongation of the war, and the addition of a large sum to the cost of the war, and the suppression of the Rebellion."

The production of these claims was received in England with the deepest indignation; the entire press, without distinction of party, denounced it as a contemptible imposition which left to the British Government no alternative but to withdraw imme diately from the arbitration. At the moment when the excitement was at its height, Parliament assembled. The course which Her Majesty's Government should take was watched with deep anxiety on both sides of the Atlantic. The speech from the Throne alluded to the matter in the following calm and courteous language: "Cases have been laid before the arbitrators on behalf of each party to the Treaty. In the case submitted on behalf of the United States Government, claims have been included which were understood on my part not to be within the province of the arbitrators." A friendly note addressed at the same time to the Washington Government completely tranquillized the public agitation, and since that time the question of the admissibility of the indirect claims has been left to the slow and silent operations of diplomacy.

The view held by the American Government seems to be that the parties to the Treaty of Washington appear before the Tribunal of Geneva, in the position of two litigants in a court of justice; that they may rightly or wrongly set up the most extensive claims, which may be in turn rejected by the arbitrators, if not falling within the meaning and the object of the Treaty.

It cannot be denied that the Tribunal of Geneva differs widely in its attributes from an ordinary court of justice. The courts of every country exercise a full and general jurisdiction over all suits or demands which its citizens may bring forward, while the jurisdiction of an arbitrator does not extend beyond the case submitted to him, under penalty of the nullity of his award, at least as regards matters not included in the submission. In private causes, this nullity is pronounced by the higher courts; but in cases of international arbitration there is no higher jurisdiction, no court to which an appeal can be made. The Geneva Commis

sion, therefore, can take no notice of matters which have not been clearly defined by the parties, and in case of doubt as to the admissibility of any matter they cannot decide, as in so doing they might mistake the meaning of the Treaty and ascribe to themselves an extent of jurisdiction which the parties had never contemplated giving them. Nothing, therefore, except the formal and mutual consent of the parties, can justify the admission of matters foreign to the arbitration or obscurely defined in the Treaty.* A qualified or conditioned consent, v. g., a consent under protest, as suggested to the British Government, would not be sufficient. The aggrieved party would remain free to withdraw, even after the rendering of the final award; and indeed it was thus that the United States acted after the question of the north eastern boundary between Canada and the State of Maine had been decided by the King of the Netherlands. And when to all these considerations is added the magnitude of the interests that are at stake, it is manifest that it is of the greatest importance to the contracting parties to avoid assuming any position which would not be amply authorized by the spirit and the letter of the Treaty. The whole question, then, may be reduced to the following form: Do the Alabama Indirect Claims clearly fall within the scope of the Treaty?

If the Treaty is ambiguous on this point, we must apply to its interpretation the maxim, that in case of doubt a contract must be construed favorably to the party bound by it. In the present case, Great Britain is the party who promises to pay; she is the party bound, the promissor; she must consequently be given the benefit of the doubt.

Grotius says that in the interpretation of promises, the intention is more important than the terms in which it is couched, or as Cicero expresses it, Semper autem in fide quid senseris, non quid deceris cogitandum. Modern science does not go so far: it regards the words as the expression of the will, but calls the intention to its aid to discover the meaning of the words. Was it the intention of the high contracting parties to submit the indirect claims to arbitration?

Before the nomination of the Joint High Commission, the indirect claims had been repeatedly presented and as often withdrawn by the American Government, but it is an equally certain fact

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