Labour Act, the acts for the inspection and standardization of wheat and some other staples, the laws to prevent the adulteration of food and many others. In regard to some of the provisions in the Insurance Act and in some of the other acts passed under this power it is by no means certain that the Federal Parliament has not invaded the provincial field.

Again, the province has power to incorporate companies with provincial objects.

But what limitation is intended to be created by the words in italics? Does it mean that companies incorporated by a Provincial Legislature must confine their business. within the province which has given them a legal status? Upon this view an insurance company incorporated by a province would be debarred from taking risks outside that province. The great division of opinion among the Judges of the Supreme Court shows how hard it is to give an intelligble meaning to the words "with provincial objects," as determining a class of companies, and until a decision of the Privy Council has been obtained, the point will remain doubtful.20

Further, the province has exclusive power to legislate as to the solemnization of marriage in the province, while the Dominion has a similar power with regard to marriage and divorce. How is it possible to reconcile the two powers?. If, for example, the province enacts that the marriage of two Roman Catholics shall not be valid unless celebrated by the proper priest of their church, is this legislation which transcends solemnization and, by affecting the validity of the marriage, invades the sphere of Dominion legislation? Must laws dealing with solemnization be limited to laying down regulations as to banns, licenses, officiating persons, and the like, and imposing penalties for breach of such regulations, but always subject to the limitation that the marriage itself shall not be annulled if celebrated by any marriage officer? This contention has recently been rejected by the Privy Council, and it has been held that under the provincial law it may be a condition of the validity of the marriage that it should be performed by the priest or minister of the religion of the parties or one of them, though in the opinion of the

20

2o C. P. R. 7 v. Ottawa Fire Insur. Co. (1907) 39 S. C. R. 405.

1

Supreme Court this condition has not yet been imposed.21 These examples may serve to illustrate the difficulties of interpreting the sections of the British North America Act, which contain the distribution of legislative powers.

Under the Canadian constitution the whole field of legislative power is divided between the Federal and Provincial Parliaments. If the enactment is one which is to take effect within Canadian territory the power to pass it must reside either with the Dominion Parliament or with the Provincial Legislature. The only exception to which this statement is subject is the very rare case of the Act which has been passed being one which conflicts with an imperial statute dealing with the same matter and applying to Canada.22

There is not any written constitution for the Dominion, or for the separate provinces by which certain subjects are withdrawn from the legislative jurisdiction. This creates an important difference between our constitution and that of the United States. An American law may be held to be invalid because it is contrary to the constitution of the United States, or, in the case of a State law, because it is contrary either to the constitution of the United States or to that of the State in which it was passed. Thus, for example, Workmen's Compensation Acts have been held invalid on the ground that to make the employer liable without proof of fault was such a taking away of property without process of law as was forbidden by the constitution.23 Under our system this would be impossible, not because the Courts have less power than those of the United States, but because there is no constitution which restricts the freedom of the Legislatures. If the province has authority to pass laws dealing with the relation of employer and employed, any legislation which it passes, however, revolutionary in character, is perfectly valid. The constitutional doctrine of the sovereignty of Parliament is as applicable to the provincial Legislatures as to the Parliament of the Dominion, or even to the Imperial Parliament, provided always that "In re Marriage Laws (1912) 46 Can. S. C. R. 132.2. In re Marriage Legislation in Canada, [1912] 1 A. C. 880. The Privy Council found it unnecessary to express an opinion on the second point. Their judgment is not yet reported.

571.

21

22 Att.-Gen. for Ont. v. Att.-Gen, for Can., L. R. [1912] A. C.

23 See Ives V. South Buffalo Ry. Co. (1911) 201 N. Y. 271 and article of Prof. Wambaugh in 25 Harv. L. Rev. 129.

the province was dealing with a subject included in the field of legislation assigned to it.24

This principle is in no way affected by the administrative veto, a power in any case very sparingly exercised.

No description of the legal system of Quebec can be at all complete without some notice of the important difference which exists between that system and the English law in regard to the authority of judicial decisions.

Without attempting to state fully the English rules on the subject, it may be said that the judgments of a higher Court, by which a point of law is decided, are binding upon. all Courts of inferior jurisdiction when the point which has been so decided comes up before them in a subsequent case, and that the higher Court itself is bound to follow its own previous decision. As Gulliver rather cruelly expressed it "If once Judges go wrong they make it a rule never to come right."

All the systems of law based on that of Rome start with a principle fundamentally opposed to this. Non exemplis sed legibus judicandum est. President de Thous, speaking of the French law says Les arrêts sont bons pour ceux qui les obtiennent, il faut se garder de les invoquer comme une autorité décisive.

English and American Judges regularly support their opinions by reference to previous decisions, whereas in France a Judge is not allowed to give a previous case as one of the motifs of his judgment. The Courts of Quebec follow in principle the French and not the English rule in regard to the value of precedents, though, perhaps owing to English example and to the attitude of mind of Judges of the Supreme Court and of the Privy Council, previous judgments are treated with more respect in Quebec than is the case in France. In a recent case in Quebec the rule was thus stated by Cross, J.:

"The binding authority of precedents is characteristic of English law. With us the Code is the law whilst decisions are particular applications of the law."25

The English system undoubtedly leads to an occasional miscarriage of justice. The Court decides a question in a

"See Beardmore v. City of Toronto (1910) 21 Ont. L. R. 505. 25 Le Procureur General de la Province de Québec v. Maclaren (1911) R. J. Q. 21 K. B. 42, 58.

certain sense, not because it is convinced that this is the correct view, but because the point has been so decided by another Court. A volume might be compiled of "Cases reluctantly followed." In rare instances the Legislature may take action, but a remedial statute will rarely, if ever, be retroactive, and the defeated litigant has to be content with the satisfaction of knowing that the injustice done to him. has led to a legal reform.

On the other hand the English system has the virtue of greater certainty. It is possible to predict with more confidence in what sense a point will be decided, and lawyers and men of business can make their arrangements accordingly. If the French theory were carried to the logical extreme every Judge would be free to give his own interpretation of the law, and previous judgments would afford no guide. The judgments of the higher Courts would not necessarily carry any weight with Courts of inferior jurisdiction. But, apart from the fact, that a Court of Appeal which has decided a legal question is not likely within a short time to decide it in the opposite sense even though perfectly free to do so, the Courts of appeal recognize that it is their duty to settle the law so far as they can. This being so, inferior Courts are not disposed to give decisions which they know will be reversed on appeal if the case goes further, or, in unappealable cases to incur the suspicion of bias by giving a decision contrary to the known views of the higher Court. The result is that both in France and in Quebec, and indeed in all countries where a civil law system prevails, a working compromise is arrived at, that where there is a "jurisprudence upon a certain point this is not to be disturbed unless it be by a Court of higher jurisdiction than the Courts which created the "jurisprudence." And "jurisprudence is defined as "the habit of the Judges to decide or interpret a question in a well-defined sense."

In Quebec, it is admitted than an inferior Court may decline to follow one judgment or even two judgments of a superior Court in order to give that Court an opportunity to reconsider the matter. When, however, a superior Court has on several occasions reached the same conclusion there is a settled jurisprudence which ought to be followed both by that Court itself and by all Courts of inferior jurisdiction.26

See Guertin v. Molleur (1902) R. J. Q. 21 S. C. 261.

Where the Courts which pronounced the judgments relied upon were themselves divided in opinion it will be more easy to reach the conclusion that the jurisprudence is not settled.

In principle it would appear that the Supreme Court of Canada in cases from the province of Quebec has the same freedom in regard to previous decisions as the Courts of the province. The composition, however, of that Court, consisting as it does of five Judges trained in the common law, and two only from the province of Quebec, inclines it to a stricter view of the binding character of precedents. But, though the Supreme Court will very rarely overrule a previous decision of its own, it is not absolutely bound to follow it, in the sense in which the Court of Appeal or the House of Lords in England would be bound in similar circumstances.27

Montreal.

F. P. WALTON.

27 See Desormeaux v. Ste. Therese (1910) 43 Can. S. C. R. 82; Shawinigan Hydro Co. v. Shawinigan Water Co. (1910) 43 Can. S. C. R. 650.