19

leave or no leave. He, however, began to hedge and said that all he meant in his former opinion was that regularly the Attorney-General's Fiat was necessary, but that if Great Seals "did not pass in ancient form they were voidable in law, which is a very different thing from that being ipso facto illegal;" this called out the obvious and crushing retort from Gore, "It cannot be imagined that any gentleman much less the King's Representative should sanction by his name. any Act which he knows from the best legal opinion to be voidable."20

Firth did not wait for leave, but being at Cornwall in September, 1811, he wrote to Liverpool complaining of his treatment and left the Province to embark at Quebec with his family, wife and two little daughters."1

Leaving him on his way to England, we shall mention some other incidents of his life in Upper Canada.

The abolition of the local Courts of Common Pleas and the institution of one central Court of King's Bench in their stead was displeasing to many in the Province especially in places remote from the Capital. The wretched roads made it an intolerable burden to attend the Court in Term from the ends of the Province. The fate of Mr. Justice Cochran and SolicitorGeneral Gray gave a vivid example of the dangers of the water ways. The Eastern District particularly complained and at length two members of the House brought the matter squarely up for determination. Mr. Samuel Sherwood, member for Grenville (always somewhat radical and a little later suspected or more than suspected of disaffection), seconded by Mr. Peter Howard, member for Leeds, obtained leave,

19 Letter Firth to Holton, July 22, 1811, Can. Arch. Q. 314, p. 116. 20 Letter Firth to Halton, July 22, 1811, Can. Arch. Q. 314, p. 123. Letter Gore to Liverpool July 29, 1811, Can. Arch. Q. 314, p. 116. Gore said that he would appoint an acting Attorney-General if Firth carried out his expressed intention. Can. Arch. Q. 314. p. 116.

"Letter Firth to Liverpool, from Cornwall, September 15, 1811. Can. Arch. 314, p. 249. Letter Gore to Liverpool, York, September 30, 1811, Can. Arch. Q. 314. p. 135.

The opinion of Sir Vicary Gibbs, Attorney-General, and Sir Thomas Plumer. Solicitor-General, Lincoln's Inn, August 9, 1811, Can. Arch, Q. 314, p. 238.

February 2, 1808, to introduce a Bill "for establishing a Court of Common Pleas in each and every District of this Province." The Bill was introduced and read the first time on the following day; it had its second reading and went to Committee of the Whole sitting on February 8. On February 8 the motion was voted down by 10 to 2, the only two supporters being David McGregor Rogers, of Hastings and Northumberland, and Thomas Dorland of Lennox and Addington, the Solicitor-General, D'Arcy Boulton, voting with the majority.

Firth, not expecting to have a hearing, on February 6 took the extraordinary course of appealing direct to the Under Secretary of State in Downing Street. He attacked the provisions of the Bill, said it was intended

"to have for Judges herdsmen from the woods (Bubulci Judices) to be selected from a few unlearned (native) Barristers without

any but a Yanky education."

His strongest argument, however, was

"I believe it to be the first step to the Province declaring its independency, it being a perfect Republican Bill abolishing the English Law and Practice and substituting a crude, undigested. incongruous mass of error and injustice

instead. ''22

22 It will be remembered that in 1794, when Hamilton in the Legislative Council opposed Simcoe's scheme for abolishing the Courts of Common Pleas and erecting the Court of King's Bench, Simcoe called him a "Republican." The letter referred to in the text is a P.S. to one of February 6, 1808, by Firth to Edward Cooke, Under-Secretary of State for War and Colonies, Can. Arch. Q. 311, p. 416. It is worth quoting in full, as showing Firth's conception of a perfectly simple Provincial measure.

"P.S. It was intention to have informed you (in the body of my letter) of a Bill which ye House of Assembly are bringing here, and which I think will have a very injurious and evil tendency both with regard to ye rights and prerogatives of ye Crown and ye final welfare of ye King's Subjects of ye Province. It is a Bill to establish a Court of Common Pleas in every District of ye Province, to have a universal Jurisdiction in holding all civil pleas, and ye decision is to be final, without appeal in all Causes (that in 19 out of 20) where ye sum recvd does not exceed £50. The

The Bill pursued the usual course and finally February 11, 1808, passed the third reading by a majority of 12 to 2, Joseph Willcocks, a notorious malcontent and David McGregor Rogers alone voting nay. In the Council the Bill failed to get through Committee of the Whole and no more was heard of it.23

Judges are to be appointed by ye Lt. Govr. with a suitable salary to be paid by ye Province. The manifest tendency (and that is ye intention in my mind of ye member bringing it in) of ye Bill is to make ye Office of Judges appd. by ye King a mere sinecure place, and to have for Judges Herdsmen from the woods (Bublci Judices) to be selected from a few unlearned (native) Barristers, made so by a Provincial Act, without any but a Yanky Education, I believe it to be ye 1st step to ye Province declarg its independency, it being a perfect Republican Bill, abolishg ye English Law and Practice, and substitutg a crude, indigested, incongruous mass of error and injustice instead.

I yesterday (as Atty. Genl.) petitioned ye House against ye Bill prayg to be heard at ye Bar.

I do not think they will grant me a hearg-The Lt. Govr. has desired my opinion on ye Bill which if he follows, will be peremptorily to refuse ye Royal assent-Indeed were it a Bill expedt to be passed, I think it one of so revolutionary a nature, that it is included in ye 14th Clause of his Instructions amg those Acts wch he is inhibited givg his assent to, till ye King's pleasure be known. W. F.

Addressed to

Cook Esqr

Secretary of State's Office

Downing St.

"For proceedings in the House, see 7 Ont. Arch. Rep. (1910), pp. 201, 205, 206, 207, 208, 210, 212, 213: in the Legislative Council, 6 Ont. Arch. Rep. (1909), pp. 307, 311-318.

(To be continued.)

C.B.R.-VOL. I.-22

EXTRA-TERRITORIAL LEGISLATION.

BY HERBERT A. SMITH, M.A. (Oxon.). Professor of Common Law in McGill University.

To the competence of every legislative body, whether great or small, there is one natural limitation. This limitation is to be found in the obvious fact that no statute can ever be effective except in so far as it can be enforced by the judicial and executive organs of the community. For example, the English law provides that treason, murder, manslaughter, and bigamy, shall be treated as crimes against the law of England, if they have been committed by a British subject beyond the limits of the British Dominions. What these statutes mean in effect is that persons committing these offences can be punished, if and when they come within reach of the British executive arm. If Parliament were to enact that a Frenchman committing murder in France were to be punishable in England, the same principle would apply, and there would be no legal difficulty either in the enactment or in the enforcement of such a law. The fact that such statutes are not enacted is due to reasons of international comity, and not to any lack of legislative competence.

All other limitations upon the competence of a legislature must be artificial in their nature. For example, under our Federal system all the legislative bodies of Canada are limited by the Colonial Laws Validity Act of 1865, and also by the express distribution of powers laid down in the British North America Act. In the United States there is a somewhat similar distribution, and the competence of the various legislatures is further limited by the fact that the Constitution imposes a total prohibition upon certain types of law-making, a principle which also finds expression in the Constitutions of Australia and of Ireland. All such restrictions are essentially artificial and the auth

ority for them must be found in the text of the constitutional documents governing each case.

If this simple principle had been steadily borne in mind we should never have been confronted with any special difficulties arising out of extra-territorial statutes enacted by colonial assemblies, and we should have been spared a certain amount of intricate and confusing legislation. In this respect the needs of a Dominion or a colony are precisely similar to those of the mother country. In the case of every community it is equally necessary, if the work of the State is to function effectively, that the law should in certain instances attach legal consequences within the frontiers to acts which take place beyond them. For example, every Province of Canada makes certain provisions for the service of legal process outside its own boundaries. Thus by the Quebec Code of Civil Procedure the legal rights of a litigant in the Quebec Courts may in certain defined cases depend upon an act, namely the service of a writ, which takes place under the authority of the Quebec legislature in the Province of Ontario. Is there any reason why the legal liability of a Canadian to suffer punishment in Canada should not similarly be made to depend upon an act which he has committed beyond the frontiers of Canada?

In principle there is obviously no distinction between the two cases, and if courts were always guided by principle the question of extra-territorial legislation would never have presented any difficulties. Unfortunately the application of the principle has been quite needlessly confused by the interference of an undefined and imperfectly analysed idea, which has sometimes been expressed in the old Latin tag, Extra territorium jus dicenti impune non paretur. Like most maxims of its kind the phrase is of little practical help in the solution of actual legal problems. If it means that laws may be disobeyed with impunity where the executive power to enforce them does not extend, the statement is perfectly true, but somewhat obvious. If