Arbitration and International Courts of Justice. Need I speak of the League of Nations, which will apply to any controverted question calling for a juridical interpretation not the Common Law of England and the United States but the Common Law of Europe, i.e., Roman Law? Consider for a moment the implications of a "Mandate" under the League which may contain surprises for our home bred lawyers, who have not had occasion to study the relations of mandator and mandatarius."

The Second Department of my subject is whether the acceptance in Ontario of the intrinsic authority of English decisions has weakened or suppressed the otherwise natural evolution of Canadian legal thought. Owing to the fact that since 1791 when the Constitutional Act came into force, English Law has prevailed in what is now Ontario, the Civil Law of old France, which was in force from the passing of the Quebec Act in 1774, in all about eight years, had hardly time to take root. Consequently, as modified by statutes of old Canada, and of this Province and affected by local judicial determination, the same law has been administered in this Province as in England for over a century and a quarter. The result is what might be expected, and we have a body of law largely modelled on English precedent, and decisions which have usually followed those pronounced in similar questions in England. There are, however, in the early development of law in Upper Canada and Ontario, very strong evidences of independence of thought and a recognition of new conditions, in the judgments delivered in our Courts. I may mention a few, as interesting examples of some of the questions which cropped up early to be dealt with:

(1) Attorney-General v. Grasett, deciding that the power given by the Constitutional Act of 1791, and by the Royal Commission to Sir Jno. Colborne, Lieutenant-Governor of Upper Canada, to create and endow Rectories was not revoked or suspended by the politi

1856, 5 Gr. 412.

cal events which happened between the years 1826 and 1836 or by the lapse of 50 years during which the power was not exercised.

(2) The extradition of John Anderson, a fugitive slave charged with murder, as to whose surrender under the Ashburton Treaty the Courts of Queen's Bench and Common Pleas differed, while the English Court of Queen's Bench created a sensation by granting a writ of Habeas Corpus, which happily was never executed here.

(3) The case of The Queen v. Sharp,' involving the Provincial Criminal Jurisdiction over the Great Lakes.

(4) The important case of Norwich v. AttorneyGeneral, deciding that a municipality guaranteeing Railway Bonds was not released by a subsequent statute which released certain stock-holders and created new companies to build the railway on a different line.

(5) The right to tolls on an international bridge, by a company formed by the amalgamation of a New York and an Ontario Corporation: International Bridge Co. v. Can. Southern Ry. Co.'

Dealing with more modern times, let me suggest some illustrations which show, I think, that the authority of English decisions has not prevented development along our own lines. While the English Courts, including the House of Lords, are still struggling with whether or not an accident has happened through, and in the course of a workman's employment or within the scope of his duty, we have had for years the Workmen's Compensation Act, which has removed that from our Courts, and has produced system in this department of law, far in advance of that prevailing in England. Another instance is to be found in the Codification of the Criminal Law, which has apparently avoided the difficulties which generally attach to such

(1860) 11 C. P. 9, 20 U. C. R. 124, 3 Ell. & Ell. 487.

1869, 5 P. R. 135.

1865, 2 E. & A. 541.

1880, 28 Gr. 114.

an attempt and has proved a great boon in its administration. This is due to Canadian enterprise and ability and has never yet been accomplished in England, which has only progressed in that direction as far as to deal in separate Acts with the offences of Perjury, Forgery and Larceny. It is pointed out by a former Lord Chancellor that in the last edition of Russell on Crimes, 173 pages are devoted to the discussion of the law of homicide, and 27 pages to the law of conspiracy to commit or attempt murder, and to the law on the attempt to commit murder.

Bigham, J. (afterwards Lord Mersey), goes rather far when, speaking of codification, he says in Edelstein v. Schuler:10

"It is also to be remembered that the law merchant is not fixed or stereotyped: it has not been arrested in its growth by being moulded into a Code."

This paralysis has not yet become apparent in Canada.

The Revised Statutes of Canada and of Ontario represent a distinct advance upon anything done in England in that direction since 1878. Our Judicature Act is to be contrasted with the situation in the mother country where the statutory provisions regulating the Supreme Court of Judicature are scattered over some 47 volumes of the Statute Book.

In Constitutional Law, while the interpretation of the British North America Act has been largely determined by English jurists, and I think, much to our ultimate advantage, it cannot be denied that an enormous number of most interesting, intricate and important questions, in that and other fields of law, have been argued in the Privy Council by Canadian Counsel with marked originality and success. It was left, too, to an eminent Canadian Judge to place the law in regard to what is now known as ultimate negligence upon a reasonable footing, which has since been 10 (1902) 2 K. B. 144.

approved by some of the most learned Law Lords in England. The conditions in Western Canada have, as well, brought about a series of important decisions relating to contracts in which a lien on or title to the article sold is retained, and these form a large body of very important law, which is but slightly developed in England. Then, again, with regard to the sale of land, conditions in the West have resulted in the rights with respect to specific performance and the forfeiture of either the deposit or part of the purchase money paid being more closely considered than had hitherto been the case owing to the different methods of sale and conveyance in vogue in England. The Devolution of Estates Act and its kindred statutes marked an advance on English jurisprudence which has recently, in great measure, been followed in that colossal Act known as the Law of Property Act, 1922, which has surmounted difficulties in that department of law unmet with in our simpler system. I should also mention with the strongest commendation the excellent text books, of which there had been such a great lack in Ontario for many years, but which are now being supplied with great credit by their authors. I give a list of these at the end of this paper, and am astonished at its length and range.

Taking a survey of the condition of Ontario, and in fact Canadian, law in this regard, I cannot see any evidences of unreasonable subservience to English decisions or lack of initiative, but rather a thoughtful adoption of them so far as they apply to our conditions, coupled with such variations or amplifications as are necessary, owing to local circumstances or to our habits of thought or bent of mind.

The next and last Department is: "What is the Actual Authority of English Decision in the Courts of Ontario and the Wisdom of Continuing or Changing it?" The only tribunal in England, whose decisions are legally binding upon Canadian Courts, is the Judicial Committee of the Privy Council. At an early

date, however, after Confederation, that body made a suggestion which I quote (Trimble v. Hill," a case from New South Wales). Sir Montague Smith there said:

"Their Lordships think the Court in the colony might well have taken this decision as an authoritative construction of the statute. It is the judgment of the Court of Appeal, by which all the Courts in England are bound, until a contrary determination has been arrived at by the House of Lords. Their Lordships think that in colonies where a like enactment has been passed by the Legislature, the Colonial Courts should also govern themselves by it. The Judges of the Supreme Court, who differed from the Chief Justice, were evidently reluctant to depart from their own previous decision in a case of Hogan v. Curtis, but they might have yielded to the high authority of the Court of Appeal which decided the case of Diggle v. Higgs, as the English Court which decided Batty v. Marriott would have felt bound to do if a similar case had again come before it."

This suggestion has met in some quarters with a cold response.

In McDonald v. Elliott,12 Rose, J., referring to this case, said:

"If I felt bound to consider whether Sutton v. Sutton, 22 Ch. D. 511, should bind me, there are some questions of interest which I would wish to hear fully argued before arriving at a decision, but I find that Mr. Justice Proudfoot in Macdonald v. Macdonald, 11 O.R. 187, at p. 190, declined to follow Sutton v. Sutton, and followed Allan v. McTavish, 2 A.R. 278, as the decision of the highest appellate tribunal of this Province." "I think I ought to follow the course taken by Mr. Justice Proudfoot and especially so when I am disposing of a case in the Chancery Division, of which he is a member."

11 (1879) 5 A. C. 342.

12 (1886) 12 O. R. 98.