case. They only demonstrate that in those countries, as well as in Canada, the legislator has deemed it necessary to restrict the disposal of property by will for charitable and useful purposes, and notwithstanding the enlightment and progress of civilisation still maintain them as necessary.

The Respondents further pretend that the legacy is valid inasmuch as it is made to trustees who have power to take under art. 869 of our Code.

The Appellants believe that no answer has been given on this point to the argument offered by them. The article 869 could not have the effect of introducing the whole system of English trusts, but limits the appointment of trustees as fiduciary legatees for merely charitable purposes, or other lawful purposes within the limits permitted by law. These terms "fiduciary legatees prove that there was no intention on the part of the codifiers to introduce a different system than the one recognized by our laws, and it allows no fiducie without the existence of the party who is seized of the property, and towards whom the fiduciary stands in the position of a mere agent. And again the proviso" within the limits permitted by law," necessarily subjects any such disposition to existing laws, and amongst others to this edict, if it has not been abrogated. Under the old French system, and our own before the code, a testator could unquestionably make a bequest to the parish priest, or to a friend, for distribution amongst the poor. In such a case the legatee was a simple ministre or The terms used with such restrictions cannot therefore indicate a determination on the part of the codifiers to operate a revolution in our system by introducing the English trusts in Canada. The absolute liberty of disposing by will cannot require for its exercise the overthrow of all the rules of law concerning the transmission of property.

trustee.

It is useless to make answer on the comments of the Counsel upon the cases wherein the existence of this edict was asserted. The Appellants are not prepared to criticise or defend every opinion given by the Judges in these judgments; but as a matter of jurisprudence, the main fact resulting from these decisions which the Counsel for Respondents cannot overcome, is the existence of the edict, and its application by all the tribunals of the country. since more than half a century, and the last of these judgments rendered by this Court after the code, not more than eighteen months ago. How can it be pretended in presence of such facts

that the edict has fallen into disuse? Have we not moreover the proviso of the statute of 1801 embodied in our Consolidated Statutes, published in 1861 ? declaring that the right of devising shall not extend to a devise by will and testament, in favor of a corporation, or other persons in mortmain. Can this be considered as an abandonment of the edict?

The principles of this law, and their application, are admitted by most of the civilized countries for the protection of the community. The learned Counsel might have saved themselves the trouble of quoting the opinions of various writers as to the opportunity of reason of laws of mortmain such as ours. If they are contrary to the well-being of society, let them be abrogated, but how can the learned Counsel explain that in England and in France no attempts have yet been made to effect any change, and that there they are still subject to these erroneous and absurd dispositions. We find, not later than in the year 1871, a case reported in the Law Journal, vol. 1, p. 24, of Hawkins v. Allen, where the question of a donation for as good and as useful an object as the establishment of a library was brought before the Court of Chancery in England and set aside as being contrary to the laws of mortmain. The facts are given as follows, in the heading of the report:

On the 24th March, 1866, D. gave a cheque for 50007. to trustees for the purpose of building an hospital. The money was received and immediately invested in stock, in the names of trustees, who, on the 3rd April, 1866, executed a declaration of trust to that effect, which was not communicated to the donor. D. died on the 7th April, 1866. Held that the gift was void under the mortmain act, and that the next of kin was entitled to the 50007.

In this case the Judge, Malins V.C., is reported to have stated:

"I take it to be perfectly clear, and indeed it has not been disputed, that whenever money is, by will, given for charitable purposes, for the purpose of building, unless land in mortmain is pointed out, the trust to build, necessarily involving the acquisition whereon to build, falls within the mortmain act, and is void. If, therefore, this lady had given 50007, for the purpose of building a fever hospital at Cheltenham, that would have been within the mortmain act, and absolutely void, and the property would have been held for the next of kin or personal representative.

"I am of opinion," says the Judge, "that this is within the express enactment of the statute, as it is within its policy and objeet; and although in this particular case, I should have been most anxious, if I could have seen my way, to carry the benevolent object of this lady into effect, and to establish an hospital in the town in which she lived, yet when I see it is impossible for me to do so, without an infringement of the law, as I find it; and I am clearly of opinion the gift is invalid.”

A. CROSS, Q.C.

R. LAFLAMME, Q.C.
ED. BARNARD.

CONTEMPTS, AND THE PRESERVATION OF ORDER IN COLONIAL PARLIAMENTS.

The powers of Colonial Parliaments to imprison for contempts, do not seem to be generally understood. In a case which occurred at the last session of the Ontario Legislature, it was thought by some that the House of Assembly in this Province had such powers, while others maintained a contrary opinion.

The constitution of the various Parliamentary bodies in the Dominion is derived wholly from the British North America Act, 1867. By this Act we have been granted a new Constitution, similar in principle to that of the United Kingdom. Whatever may have been the powers of the different Parliamentary bodies in this country prior to Confederation, it is submitted that since Confederation they can only exercise the privileges, immunities and powers granted by this Act.

On the creation of a Colonial House of Assembly, no power to imprison for contempt attaches by analogy to the lex et consuetado parliamenti as part of the common law inherent in the two Houses of Parliament in the United Kingdom. The privileges of the House of Commons, that of punishing for contempt being one, belong to it by virtue of this law, which is peculiar to and inherent in the two Houses of Parliament in the United Kingdom; Doyle v. Falconer, L. R. 1 P. C. Appeals, 339, per Sir J. W. Colville; and therefore they do not extend to the Colonies. The power to imprison for contempt is a judicial power, and as a Colonial House of Assembly has no judicial functions, it cannot claim to exercise the power by analogy to a Court of Justice,

for the latter is a court of record, in which the power is inherent. Nor does the power to imprison for contempt attach as a necessary incident in the creation of a Colonial House of Assembly; ib. 328; Kielley v. Carson, 4 Moore's P. C. Cases 63; Fenton v. Hampton, 11 Moore's P. C. Cases, 347; Hill v. Weldon, 3 Kerr 1 et seq.

Prior to Confederation, it was decided in the Provinces of Ontario and Quebec respectively, that the Colonial Legislatures then existing in these Provinces had powers to imprison for contempt. See McNab v. Bidwell, Draper 152; Re Tracey, Stuart's L. C. Appeals, 479.

These cases having been decided before the British North America Act was passed, cannot now be regarded as of any weight, and even if this Act had not been passed, they would have been virtually overruled by the cases before referred to in the Privy Council.

The question at once arises, what powers has the British North America Act, 1867, conferred on the Dominion and respective Local Legislatures in regard to imprisoning for contempts and preserving order in the House? and what is the difference between the Dominion and Local Legislatures in this respect?

S. 18 provides that "the privileges, immunities and powers to be held, employed and exercised by the Senate and by the House of Commons, and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, engaged and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the members thereof." This section empowers the Parliament of Canada to define the privileges, immunities and powers of the Senate and House of Commons and the members thereof.

In pursuance of this power the 31 Vic. c. 23, s. 1, enacts that "The Senate and the House of Commons respectively and the members thereof respectively, shall hold, enjoy and exercise such and the like privileges, immunities and powers as at the time of the passing of the British North America Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland, and by the members thereof, so far as the same are consistent with and not repugnant to the said Act.”

This section confers on the Senate and House of Commons in Canada the privileges, immunities and powers enjoyed by the Commons House of Parliament of the United Kingdom, including the power of imprisoning for contempt; and it is submitted that incident to this power there is vested in the Dominion Parliament the right of judging for itself what constitutes a contempt and of ordering the commitment to prison of persons adjudged by the House to be guilty of a contempt and breach of privilege, by a general warrant stating simply that a contempt has been .committed, without setting out the specific grounds of the commitment. See The Speaker of the Legislative Assembly of Victoria v. Glass, L. R. 3 P. C. Appeals, 560.

In addition to this no doubt the Dominion Parliament possesses all the powers of preserving order in the House which are en. joyed by the Local Legislatures as hereinafter shewn. The power of imprisoning for contempt inherent in the House of Commons in England by virtue of the law and custom of Parliament, can only be conferred on Colonial Assemblies by express grant; ib. Doyle v. Falconer supra.

It has been already shewn that the British North America Act, 1867, and the 31 Vic. c. 23, grant this power to the Senate and House of Commons. But the grant seems restricted to them, and the writer is not aware of any other Imperial statute granting the power of imprisoning for contempt to the Local Legislotures in the several Provinces of the Dominion. As therefore no such grant has been made to these Legislatures, it would seem that they do not possess the powers enjoyed in this respect by the Senate and House of Commons, for as already shewn, there is no ground upon which the power can be exercised. The power being peculiar to the House of Commons in England, does not pass as a necessary incident on the creation of a Colonial House of Assembly. But even where there is no express grant to a Colonial House of Assembly of the right to imprison for contempt, the power to preserve order and remove obstructions in the House being necessary for self-preservation, attaches as a necessary incident. We must distinguish between the power which is preventive and that which is primitive. The former power being essential to the existence of the House, follows as a necessary incident, and although the Local Legislatures in the several Provinces of the Dominion have no power to imprison by way of punishing a contempt, yet if a member of any