must rest with the Imperial Parliament. Independently of the doctrine that our Local Legislature can only exercise such powers as are specially conferred upon it under the statutes passed by the Imperial Parliament, there are other points of view in which the question may be considered. Though possessing a domestic Legislature, we form part of a vast empire having other colonies exercising similar legislative powers to our own. If any one colony by passing laws, or refusing to pass laws, produced a state of things which created difficulty with a foreign state, the whole nation might be involved in a calamitous war from the imprudence or recklessness of an unimportant colony." The question, in this case was whether the Imp. Stat. 59 Geo. 3, c. 69 could be held to apply here, and the learned Judge went on to say: "Considered in the above view, it appears to me that the statute which we are discussing relates to the conduct of citizens of the empire towards foreign states and peoples, and is on a subject which must be disposed of and legislated upon by the Imperial Parliament, as representing the supreme legislative power of the nation, and as to which it is necessary that all the subjects of the Crown should alike be bound." (a) In this case the defendants were convicted of a misdemeanor under the above statute, 59 Geo. 3, c. 69, for procuring and endeavouring to procure enlistments in this country for the army of the United States, and upon motion for a new trial it was held that although at the time of the passing of the statute we had a Local Parliament and separate powers of legislation, yet it was in force in this. Province, and the conviction was sustained and the statute held to apply here. (b)

If, after the grant of a Constitution and independent

(a) 14 U. C. C. P. 322.

(b) Ib 318; see also Reg. v. Sherman, 17 U. C. C. P, 166.

powers of legislation, an English statute is introduced into a colony, though afterwards repealed in England, it will still continue to apply in the colony. (a) The reason is that none of the provisions of the repealing statute, which are substituted for the repealed statute, extend to the colony (b): Imperial statutes not extending thereto, unless expressly named, or the statute is of such universal application as manifestly to apply therein. (c)

In the early settlement of a colony, when the Local Legislature has been just called into existence, and has its attention engrossed by the immediate wants of the members of the infant community in their new situation, the courts of judicature would naturally look for guidance, in deciding upon the claims of litigants, to the general laws of the mother country, and would exercise greater latitude in the adoption of them than they would be entitled to do as their Local Legislature, in the gradual development of its powers, assumed its proper position. Every year should render the courts more cautious in the adoption of laws that had never been previously introduced into the colony (d): and in accordance with these principles it was held in this case that increasing lapse of time since the settlement of the colony should render courts more cautious in recognizing English statutes which have not been previously intro-duced. (e) It is suggested as even worthy of grave consideration whether, after the existence of an independent legislature for nearly a century, the adoption of English statutes is not rather the province of the legislature than of the courts. (f)

(a) Dunne v. O'Reilly, 11 U. C. C. P. 404; Reg. v. Roblin; 21 U. C. Q. B. 352; Kelly v. Jones, 2 Allen, 473.

(b) Kerr v. Burns, 4 Allen, 609; following James v. McLean, 3 Allen, 164. (c) See Imp. Stat. 28 & 29 Vic. c. 63.

(d) Uniacke v. Dickson, 1 James, 291; per Haliburton, C. J.

(e) Ib. 287.

(ƒ) Ib. 291, per Haliburton, C. J.

There is no precise or defined rule, nor any direct decision as to what Imperial statutes extend to the colonies. This must of necessity be left open for decision in each particular colony and case by the courts established in those colonies, subject to an appeal to Her Majesty in Privy Council. (a) The courts are not, in deciding, to proceed upon any arbitrary exercise of their will, but upon the best views which they can take of arguments which cannot in their nature lead to any clear and incontestible. conclusions, and they are to so decide, subject to the revision and control of the Queen in Council, and subject also to any express provision which the Legislature of the mother country or the colony may think fit to make. (b) The ultimate and final forum to decide as to what particular laws are in force is the Privy Council. (c)

When the law of England is introduced into a colony by some positive enactment of the mother country, or, as may be done in the case of a conquered country, imposed by the mere act or regulation of the Queen in the exercise of her royal prerogative, the extent of its introduction must depend upon the terms of the Act or regu lation introducing it (d): but the 32 Geo. 3, c. 1, introducing the civil law of England into the Province of Ontario does not place its introduction on a footing materially different, as regards extent of introduction, from what was the effect of the proclamation of the 7th October, 1763, in those territories to which it extended, or from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force on the principles of the common law, by

(a) Uniacke v. Dickson, 1 James, 299, per Hill, J.; Ex parte Rousse, S. L. C. A. 322 per Sewell, C. J.; Dillingham v. Wilson, 6 U. C. Q. B., O. S. 86, per Sherwood, J.

(b) Doe dem Anderson, v. Todd, 2 U. C. Q. B. 87-8, per Robinson, C. J.

(c) Ib. Uniacke v. Dickson, 1 James, 287.

(d) Doe dem Anderson v. Todd, 2 U. C. Q. B. 83; per Robinson, C. J.

reason of such colonies having been first inhabited and planted by British subjects. (a) It would seem, therefore, we may reasonably assume the 14 Geo. 3, c. 83, and the 40 Geo. 3, c. 1, do not introduce the English criminal law to any other or greater extent than it was introduced, by the proclamation of 1763, into the Province of Quebec or than the English civil law was introduced by the 32 Geo. 3, c. 1, into the Province of Ontario; and that as to extent of introduction there is no material difference between colonies in which it is held to be in force on common law principles and those in which it is introduced by an express statute or proclamation. In each case only such laws as are of general and universal application, and adapted to the circumstances of the colony, can be held to be in force. (b) We may therefore conclude that the several Provinces of the Dominion stand on pretty much the same footing in regard to the extent of the introduction of the English criminal laws.

There seems to be a distinction between the common and the statute law extending to the colonies. As a code colonists have been disposed to adopt the whole of the former, with the exception of such parts only as are obviously inconsistent with their new situation; whilst far from being inclined to adopt the whole body of the statute law, they hold that such parts only are in force as are obviously applicable to and necessary for them. As respects the common law, the exclusion forms the exception, whereas as to the statute law the reception forms the exception. (c) It must, therefore, be quite clear that an English statute is applicable and necessary in a colony before it is held to be in force. (d) In this case it was ac

(a) Ib. 86; per Robinson, C. J.

(b) Ib. 86; per Robinson, C. J.

(c) Uniacke v. Dickson, 1 James, 289, per Halliburton, C. J. (d) Ib. 289 per Halliburton, C. J.

B

cordingly held that the whole of the English common law will be recognized as in force, excepting such parts as are obviously inconsistent with the circumstances of the country, while on the other hand none of the statute law will be received except such parts as are obviously applicable and necessary. (a)

The learned Chief Justice goes on to remark that this distinction rests in the very nature of things, and is derived from the origin of the two codes. The common law has its foundation in those general and immutable principles of justice which should regulate the intercourse of men with men wherever they reside. The statute law emanates from the wisdom of the legislature of the day, varies with varying circumstances, and consists of enactments which may be beneficial at one time and injurious at another-which might advance the interests of one community and prove ruinous to those who were differently situated. (b)

Whether the several Provinces of the Dominion be considered as acquired by occupancy or cession, it is quite clear, from numerous authorities, that only such laws as are applicable and necessary to the circumstances and condition of the colonies have been introduced. (e) Local statutes adapted solely to England, or such as have been passed upon grounds or for reasons peculiar to the mother country, do not apply here. (d)

English statutes of general and universal application, regulating the ordinary affairs of life, apply to the colo

(a) Ib. 287

(b) Ib. 290.

(c) Shea v. Choat, 2 U. C. Q. B. 211; Wilson v. Jones, 1 Allen, 658; Kerr v. Burns, 4 Allen, 605; Smyth v. McDonald, 1 Oldright, 274; Leith v. Willis, 5 U. C. Q. B. O. S. 102-3; per Robinson, C. J.; Dillingham v. Wilson, 6 U. C. Q, B. O. S. 85; Uniacke v. Dickson, 1 James, 287; Doe dem. Anderson v. Todd, 2 U. C. Q. B. 82.

(d) Reg. v. Row, 14 U. C. C. P. 307; Ex parte Rousse, S. L. C. A. 321; Doe dem. Anderson v Todd, supra, Kavanagh v. Phelon, 1 Kerr, 472-6; Doe dem. Hannington v. McFadden, Berton, 153,