Page images
PDF
EPUB

Fourth: Conferences between the signatory powers shall be held from time to time to formulate and codify rules of international law, which, unless some signatory shall signify its dissent within a stated period, shall thereafter govern in the decisions of the Judicial Tribunal mentioned in Article One.

The League's address is 70 Fifth Avenue, New York, and they have published a book called "Enforced Peace," which gives the various addresses delivered at their first annual meeting in May, 1916, and in it one can see the questions involved discussed and criticisms answered.

Lawyers, above all people, are best able to judge of the value of force in ultimately carrying out the law of the land, both civil and criminal. Not even the most ardent pacifists have suggested the abolition of the police force, though they and all of us, I fancy, forget the debt the whole world owes to Sir Robert Peel.

Although neither a centralized international army nor the compulsory execution of the decrees of an international Court are proposed, yet the economic and military forces of a good number of the most powerful world-states could not more worthily be held in readiness, than for the purpose, not of aggression, nor even of individual or group defence, but to give instant, certain, and powerful sanction to a rule making for peace, namely, the preliminary hearing or public statement of the cause for which war is intended to be waged. Publicity, discussion, delay are the great handmaids of Peace, and will have a chance of getting in their beneficent work. May the lawyers of Canada give the scheme their careful consideration.

PERCIVAL B. WALMSLEY.

Port Cunnington, Ont.

A LEGAL PROPHET FROM AUSTRALIA.

The case of McCulloch v. Maryland,' decided by the Supreme Court of the United States nearly one hundred years ago is, from a constitutional standpoint, at least, the most important case ever decided by the American Courts; and the manner in which it has been followed in this country and subsequently repudiated by the same Courts, is an interesting chapter in Canadian judicial history.

The McCulloch case, it will be remembered, involved the power of a State to tax a bank incorporated by the American Congress, and the decision was that the States had no such power.

In Canada a similar question arose as to the power of the provinces to tax federal officials on their federal salaries and incomes, and the Canadian Courts held, following the analogy of the McCulloch case, that the provinces had no such authority. In the case of Leprohon v. Ottawa, the Ontario Court of Appeal adopted the reasoning of the McCulloch case without reservation.

"I have explained shortly the reasons which have led to this conclusion," said Chancellor Spragge, in this case, "without referring, so far, to the American cases upon like questions arising in the United States. Those cases, without being authorities in the sense that the decisions of the Courts in the mother country are authorities binding on us, are yet entitled to the highest respect. They are the judgments of very eminent jurists, whose minds have been trained to the consideration of these and cognate questions, from the frame of their Constitution with powers of government distributed, some to a federal authority, and some to governments of States, analogous generally to the allotment of powers with us, some to the Dominion and some to the provinces, with this differ

14 Wheat. 316.
22 O. A. R. 522.

ence that powers not specified reside in the several States, as well as those specifically committed to them, while only those specifically committed to the federal government belong to that authority. The converse is the case in our Constitution, and the difference makes the American decisions a fortiori in favour of the principle affirmed by them; perhaps I should rather say that the principle is, if anything, more free from difficulty in its application to our Constitution, than to that of the United States.

"I have examined these American cases with great attention, and could not fail to be struck with the great erudition and ability displayed in the masterly judgments delivered by the very learned judges, before whom they were heard and adjudicated upon

I do not propose myself to quote from the American cases, but content myself with expressing my high appreciation of their great merits and value; adding only this, that the process of reasoning upon which judges in these cases proceeded, is, in my humble judgment, uncontrovertible.'

In New Brunswick in Ex parte Owen, the Supreme Court of that province in a similar case adopted the reasoning of the Ontario case just mentioned, as appears by the following quotation from the judgment of Weldon, J., who delivered the leading judgment:"He" (referring to the counsel who argued in favour of the province) "was obliged, therefore, not only to deny the authority of the decision of the highest Court in Ontario, but also to dispute those principles of constitutional law propounded by the Supreme Court of the United States, even at a time when that Court was presided over by so eminent a constitutional lawyer as Chief Justice Marshall. No doubt it was quite competent for Dr. Tuck to do this; because neither of these Courts exercises appellate jurisdiction over us, and therefore we are not constrained to follow their decisions unless we approve of them. But I think that it was his duty to shew us

320 N. B. 487.

satisfactory grounds for disapproving of them. He should have been prepared to furnish us with cogent and convincing reasons for refusing our assent to the judgment of the Court of Appeals of Ontario; and for repudiating the principles of Constitutional law laid down by the Supreme Court of the United States. For I think, with Chief Justice Hagarty, that there is no practical difference between the principles which should be applied in discussing the relative powers and jurisdictions of the Dominion and local legislatures, under our Confederation Act, and those which have been declared to regulate the respective powers of the United States, and the several States of the Union. And that, barren of authorities upon the subject as our own books are, it is to the Marshalls and Storys of the neighbouring republic, and to their successors in that Court, which is still true to the traditions of the best age of American jurisprudence, that we have to look for guidance and assistance on a subject most familiar to them-most unfamiliar to

[merged small][ocr errors]

When the Australian Confederation was formed, naturally the Australian Courts were called upon to deal with the same question, and the High Court of Australia in d'Emden v. Pedder and Deakin v. Webb, applied the same rule.

None of the Canadian cases on the point, it will be noted, was carried to the Privy Council, but in 1907 one of the Australian cases was carried to that tribunal which held in Webb v. Outrim, that there was nothing in the Australian Constitution to prevent such officials from paying the income tax.

In the meantime the Supreme Court of New Brunswick had followed the Owen decision in a number of cases, but after the decision in the Webb case, the matter was again brought before the Supreme Court in 1908 in the case of the King v. St. John, and in view

[blocks in formation]

of the decision in Webb v. Outrim the Supreme Court of that province was asked to overrule their previous decisions.

Attorney-General McKeown, now Chief Justice of the King's Bench Division, argued the case, and relied upon the former decisions of the Court and the fact that in Australia the residuum of power between the State and the Commonwealth is with the State, while in Canada it is with the Federal Government.

The brief judgment of the Court delivered by Barker, C.J., is as follows:

"This application involves simply the question whether the salary of an official of the Dominion government is liable to taxation for municipal purposes in the city of St. John. Under previous decisions of this Court, following in that respect decisions in Ontario and elsewhere, this assessment should be quashed. It is, however, contended that the decision of the Judicial Committee of the Privy Council in Webb v. Outrim is contrary to the view hitherto entertained on this question, and that it, in fact, overrules the previous decisions of this Court. This application is made with a view of determining this somewhat important question. The case I have mentioned arose under a similar attempt at taxing an official of the Commonwealth of Australia on his official salary, and the Court of that country held that the assessment was illegal on the same grounds as have been put forward in Canada. This decision the Judicial Committee overruled in the case I have mentioned. We think there is no real distinction between that case and the present. It is true that in many respects the Constitution of Australia is copied from a somewhat different model from that adopted by the framers of the British North America Act. In the case of Australia general powers were carved out of the powers which the provinces had previous to federation and given to the federal parliament, the residuum of power remaining in the provinces. In Canada specific powers of legislation were given to the provinces, and the

« PreviousContinue »