Julianus' opinions, and not only in his Notes to him, and tries to limit their efficacy (see e. g. fr. 27, § 3, h. t.). In composing fr. 11 Ulpianus had under his eyes Julianus' text preserved to us in fr. 51, h. t., and this is proved by the fact that the quotation from Julianus in fr. 11, § 2 corresponds to § 1 in fr. 51. Besides Julianus is quoted in all paragraphs of fr. 11, except the § 3 from which the question arises. The opinion maintained in this paragraph is attributed to Celsus and Marcellus, so it is very difficult to suppose that Julianus acceded to it, the more so considering that Ulpian's fragment, even in the form it has in the Corpus Juris, preserves vestiges of an ancient controversy : quod et Marcello videtur ET EST PROBABILIUS. If the opinion adopted by Marcellus was the more probable, there must have been another opinion which Ulpian thought less probable. At least in reading fr. 51 pr. it is very easy to perceive that Julian was expounding a theory of his own, of which he tries to persuade the reader.' It is strange that after collecting so clearly the main arguments in favour of the prevalent opinion the clever Romanist should repel it. He is induced to disregard the arguments collected because of fr. 15, § 1; but, it being proved, as he himself admits, that in fr. 15 another case is considered, how can they be disregarded? Professor Ferrini's new theory is supported by arguments by far less convincing, and cannot be maintained against Pernice's any more than Grueber's earlier theory. The two recent writers have then thrown no new light on the matter, and our opinion may still live prosperously in spite of the premature death knell1. G. PACCHIONI. The practical solution of the controversy is quite different from the scientific in regard to Justinian's compilation. The writers are generally inclined to accept Ulpian's opinion, but considering the progress of medicine in our age we think Julian's theory is to be preferred. See Castellari, Arch. Giur. xxii. p. 356 and following. [I am not sufficiently versed in the Digest to have a decided opinion as to what Julianus was capable of. But I cannot help thinking that a Roman lawyer who held that an action would lie for killing a man before the man was dead would have seemed to his colleagues capable de tout; and, with all deference to specialists in Roman law, I submit that we ought to have stronger and less ambiguous evidence before we attribute such a view to any lawyer of the classical period.-EDITOR.] 185 THE CANADIAN CONSTITUTION 1. HE Dominion of Canada consists of seven organized provinces, inhabited, and known as the North West Territories. The area and population of the different provinces vary very widely as the following table shows: Area in 101,731 440,572 Manitoba British Columbia ... Prince Edward's Island District of Keewatin North West Territories The union of the Canadian Colonies in a federation was a favourite idea with individual statesmen from time to time. It was advocated by Lord Durham in the Durham Report. More than once the subject was debated in one or other of the legislatures, and in 1858 it was part of the policy of the Cartier-Macdonald administration, but it was not until 1861 that any definite steps were taken to carry the suggestion into practical effect. In that year the legislature of Nova Scotia passed a resolution in favour of the union of the maritime provinces. This resolution was transmitted to the Duke of Newcastle, then Secretary of State for the Colonies, and by him it was forwarded to the Governor-General and the Lieutenant-Governors of the other North American colonies. The Lieutenant-Governors communicated the resolution to their respective legislatures, and the legislature of each maritime province resolved that delegates should be appointed to confer with delegates of the other provinces, 'for the purpose of discussing the expediency of a union of the three provinces under one government and legislature.' Up to this point the important and leading colony of Canada had held aloof from the proposed union, but a few of the leading politicians fortunately saw that a union offered an opening from the deadlock that had occurred in party government in the colony. When Upper and Lower Canada 1 A portion of a forthcoming work on 'The Canadian Constitution.' were united in 1840, Lower Canada possessed the larger population, but in a few years, owing to constant immigration, the population of Upper Canada came to exceed that of Lower Canada by 250,000. A demand arose in the former province for a re-adjustment of representation in the legislature, and 'representation in proportion to population' became the important political question of the day. Parties at length became so balanced that from the 21st May, 1862, to the end of June, 1864, there were no less than five different ministries in office, and the efficient conduct of public business became impossible. In the meantime the Nova Scotia proposal had been communicated to the legislature, and on the defeat of the Taché-Macdonald ministry in 1864 overtures were made by the opposition to Sir John Macdonald, which resulted in the formation of a coalition ministry pledged to the adoption of a federal union of the colonies. Permission was asked and given to attend the meeting of the delegates of the maritime provinces, which was held soon after at Charlottetown. The conference came to the conclusion that a union of the maritime provinces by themselves was impracticable, but that a union of all the colonies was possible and desirable. In order to discuss this wider issue a second conference met at Quebec on the 10th October, 1864. Twelve delegates were present from Canada, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward's Island, and two from Newfoundland. After eighteen days' deliberations, 72 resolutions were agreed upon as the basis of union, the delegates undertaking to submit the resolutions to their respective legislatures, and to use every legitimate means to ensure the adoption of the scheme. Early in the year 1865, the Canadian legislature expressed its approval of the Union by votes of 45 to 15 in the Council, and 91 to 33 in the Assembly. In New Brunswick the general election of 1865 resulted in the return of an Assembly hostile to the proposal. The Council in the following year declared for the Union: the ministry resigned and a general election followed, and the new Assembly adopted the scheme. The hostility of New Brunswick affected Nova Scotia, but in 1866 the Assembly adopted the Quebec resolutions by a large majority. Prince Edward's Island and Newfoundland declined to enter the Union. Three provinces had now given their consent subject to certain modifications desired by the two maritime provinces. All differences were adjusted at a Conference held in London in Dec. 1866, and in Feb. 1867 Lord Carnarvon introduced a bill for the union of Canada, Nova Scotia, and New Brunswick and the government thereof and for purposes connected therewith.' The measure obtained the support of all parties, and received the royal assent on the 29th March. The Act authorized Her Majesty in Council to declare by proclamation that on and after a certain day the provinces of Canada, Nova Scotia, and New Brunswick should form one Dominion under the name of Canada. Such proclamation was issued on the 22nd May, 1867, and the 1st day of July of that year was fixed as the date from which the Union should take effect. The Act made provision for the admission of Prince Edward's Island, British Columbia, Newfoundland and the North West Territories into the Union. British Columbia was admitted by Order in Council, dated the 16th day of May, 1871, as from the 20th July, 1871. Prince Edward's Island was admitted by Order in Council dated the 26th June, 1873, as from the 1st day of July, 1873. The North West Territories were ceded to Canada by Order in Council, dated the 24th June, 1870. Some doubt existed as to the power of the Dominion Parliament to form new provinces out of these territories, and the Imperial Act, 34 & 35 Vict. c. 28, was passed to confer such power. A further Imperial Act (49 & 50 Vict. c. 35) was passed in 1886 to enable the Dominion to provide for the representation of territories not forming part of any province in the Senate and House of Commons of Canada. These last mentioned Acts have greatly increased the legislative powers of the Dominion. Under their provisions the new province of Manitoba was created in 1870, and provision has been made for the government of the North West Territories. Five districts have been organized in the Territories, viz. Keewatin, which has been placed under the Lieutenant-Governor of Manitoba and Assinboia, Saskatchewan, Alberta, and Athabasca, forming that portion of the territories lying between Manitoba and British Columbia. It is impossible in the limits of one article to give a detailed account of the Canadian Constitution. There is a popular impression that an adequate description of that Constitution can be found within the four corners of the Union Act of 1867, when as a matter of fact the student must gather his information from six different sources. (1) English Statute Law. Reference has already been made to important statutes relating to Canada and passed after 1867. (2) Canadian Statutes. The qualification of electors to the House of Commons, the qualification of members, the constitution of the North West Territories, the organization of the departments of state and the constitution of Courts of Justice are, for instance, regulated by Canadian Statutes. (3) Provincial Statutes. Though the leading features of the constitutions of Ontario and Quebec are found in the Act of Union, many details of the constitutions of the other provinces are only to be found in the Statutes of the Provinces, e. g. the law relating to the franchise. (4) Imperial Orders in Council. The most important Imperial Orders in Council are those already referred to, admitting British Columbia, Prince Edward's Island, and the North West Territories into the Union. (5) Dominion and Provincial Orders in Council. These sometimes contain important regulations. The Government of the North West Territories is, subject to the provisions of the statute-law, carried on by a Lieutenant-Governor and Council, subject to Orders in Council issued by the Governor-General in Council. (6) Orders and rules of the Dominion Parliament and Provincial Legislatures. (7) Usages. These orders, rules and usages govern the procedure in the Dominion Parliament and the provincial legislatures from day to day, and regulate the method of legislation. I. DISTRIBUTION OF LEGISLATIVE POWER. The framers of the Canadian Constitution in distributing the legislative power have not followed the United States principle of reserving certain specific subjects to the central legislature, and leaving what remains to the provincial legislatures. Nor have they adopted the opposite principle of delegating specific subjects only to the provinces. Both methods have been partially followed, and an attempt has been made to enumerate the respective powers of the Dominion and the Province. The framework of the Act is briefly as follows. The Dominion Parliament has a general power to make laws for the peace, order, and good government of Canada, and certain subjects are in addition specifically assigned to it. This legislative power is limited in two ways: (1) by the indirect reservation of certain matters to the Imperial Parliament; and (2) by the powers assigned to the Provincial Legislatures. Whenever a dispute arises regarding the validity of a provincial Act, the first question the Court has to decide is this :-Does the subject-matter fall within any of the matters assigned to the provinces? If it does not, then the Act is ultra vires; but if it does, then this second. question arises :-Whether the prima facie right of the province to pass the Act is not overborne by the powers given to the Dominion', or reserved indirectly to the Imperial Parliament? That the whole sphere of legislation has not been surrendered by the Imperial Parliament is clear from the following restrictions on the legislative powers of the Dominion and the provinces : 1. The Dominion has only a limited power of altering its Constitution2. It cannot apparently abolish either of the Houses of 1 Citizens Insurance Co. v. Parsons, 45 L. T. N. S. 721; Bank of Toronto v. Lambe, L. R. 12 App. Cas. 575. 2 See post, p. 190. |