L'UNION ST. BELISLE Court to be sound, does this Act transgress the Dominion Act? It is argued, and with considerable force, I think, that only Q. B., Quebec. general legislation on insolvency was reserved to the Dominion or Federal Parliament, and that this Act not possessing that character, Monk, J. it does not come within the prohibition. The law, however, does not, expressly or by clear implication, make that distinction, and, in that case, this Court would not probably feel justified in doing 80. The local Act says in plain English that the Union St. Jacques, being insolvent, unable to meet its liabilities and engagements, and not being able to induce the respondent and other ladies to accept a composition, the power of the Local Parliament is invoked to legalize a reduction of the claims-in other words, to compel the interested parties to accept a forced composition. All this is said and enacted, in less precise, in milder words, yet, this is a concise statement of the case. The whole Act means insolvency and forced composition; nothing more and nothing less. If this be true, then the letter of the Imperial Act is plainly violated, and although I have some doubts as to whether that statute meant to prohibit the Local Parliament from legislating on insolvency in matters of the nature brought before us, yet there is a judgment of the Court below, and my doubts are not strong enough to induce me to disturb it, more especially under the circumstances of this case. DRUMMOND, J. :— This is a case deserving more than ordinary consideration, not from the amount of money at stake, but from the importance of the constitutional question involved in it-namely, whether the Courts of this country have power, I would not say, in formal terms, to annul, but to refuse obedience to the commands of the manifold Legislative Bodies of this Dominion when they issue in matters with which the Imperial Parliament has given them no authority to deal, or inhibited them from interfering." To explain the facts of the case and the grounds upon which the judgment appealed from was given, I avail myself of the observations made by his Honour Mr. Justice Torrance, because they express my opinion, my view of the whole matter, in clear and concise terms. (His Honour read the remarks of TORRANCE, J., for which see 15 L. C. Jurist, p. 212.) JACQUES v. BELISLE. Remains the question, as to how the tribunals of Federal Govern- L'UNION ST. ments should deal with enactments made by the divers Legislatures beyond the limits of the legislative powers assigned to them respectively, by the Charters or Constitutions to which they owe their Q. B., Quebec. existence. I do not hesitate to say that the duty of the Courts is Drummond, J. to disregard, or refuse obedience to, all such enactments, as null and void. In support of this position, I quote, in the first place, the opinions of some great publicists and jurisconsults who have defined the duties of judges, in relation to the conflicting laws of Federal, or Composite Governments, organized by social compact between Independent States. Austin, one of the most profound of all writers in the English language on the philosophy of Law and Jurisprudence, says : "To illustrate the nature of a composite state, I will add the following remark to the foregoing general description: Neither the immediate tribunals of the common or general government, nor the immediate tribunals of the several united governments are bound, or empowered, to administer or execute every command that it may issue. The political powers of the common or general government are merely those portions of their several sovereignties which the several united governments, as parties to the Federal compact, have relinquished and conferred upon it. Consequently, its competence to make laws and to issue other commands, may and ought to be examined by its own immediate tribunals, and also by the immediate tribunals of the several united governments; and if, in making a law or issuing a particular command, it exceed the limited powers which it derives from the Federal compact, all those various tribunals are empowered and bound to disobey. "And since each of the united governments, as a party to a Federal compact, has relinquished a portion of its sovereignty, neither the immediate tribunals of the common or general government, nor the immediate tribunals of the other united governments, nor even the tribunals which itself immediately appoints, are bound, or empowered, to administer or execute every command that it may issue. Since each of the united governments, as a party to the Federal compact, has relinquished a portion of its sovereignty, its competence to make laws and to issue other commands may and ought to be examined by all those various tribunals. And if it enact a law or issue a particular command, as exercising the sovereign powers which it has relinquished by the compact, all those L'UNION ST. Various tribunals are empowered and bound to disobey. JACQUES V. BELISLE. For every political power conferred on the general government is subtracted from the several sovereignties of the several united Q. B., Quebec. governments. From the sovereignty of that aggregate body, Drummond, J. We may deduce, as a necessary consequence, the fact that I have mentioned above: namely, that the competence of the general government, and of any of the united governments, may and ought to be examined by the immediate tribunals of the former, and also by the immediate tribunals of any of the latter. For since the general government, and also the united governments, are subject to that aggregate body, the respective Courts of Justice which they respectively appoint, ultimately derive their powers from that sovereign and ultimate Legislature. Consequently those Courts are ministers and trustees of that sovereign and ultimate Legislature, as well as of the subject Legislatures by which they are immediately appointed; and consequently those Courts are empowered, and are even bound to disobey, wherever those subject Legislatures exceed the limited powers which that sovereign and ultimate Legislature has granted or left them." [Vol. II., p. 261.] Alexander Hamilton-one of the most eminent statesmen and publicists this Continent has produced-in No. 78 of the "Federalist," wrote: "There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised is void. No legislative Act, therefore, contrary to the Constitution can be valid. To deny this would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers authorize, but what they forbid." In the case of Marbury v. Madison, (1) Marshall, C. J. of the Supreme Court of the United States, made use of the following expressions in giving judgment: The original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. "The Government of the United States is of the latter description. The powers of the Legislature are defined and limited, and that those limits may not be mistaken or forgotten, the Constitution (1) 1 Cranch, 137. JACQUES v. is written. To what purpose are powers limited, and to what pur- L'UNION ST. whom they act. "Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means; or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the Legislature shall please to alter it. "If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. "Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an Act of the Legislature repugnant to the Constitution is void. "This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject." Having established the supremacy of the Constitution, and the nullity of all legislative acts passed in contravention of its principles, Marshall, C.J., thus continued his judgment: "If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory; and would seem at first view an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration. "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret the rule. If two L'UNION ST. laws conflict with each other, the Courts must decide on the operaJACQUES น. BELISLE. tion of each. "So if a law be in opposition to the Constitution; if both the Q. B., Quebec. law and the Constitution apply to a particular case, so that the Court Drummond, J. must either decide that case conformably to the law disregarding the Constitution; or conformably to the Constitution disregarding the law; the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. "If then the Courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply. "Those then who controvert the principle that the Constitution is to be considered in Court as a paramount law, are reduced to the necessity of maintaining that Courts must close their eyes on the Constitution and see only the law. "This doctrine would subvert the very foundation of all written Constitutions. It would declare that an act which according to the principles and theory of our government is entirely void, is yet in practice completely obligatory. It would declare that if the Legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibitition, is in reality effectual. It would be giving to the Legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure." These incontrovertible propositions, admitted as undoubted by Kent, Sedgwick, by-in one word-all the great legal writers of the neighbouring Republic,-seem to acquire, if possible, more force when applied to exorbitant Acts which English Colonial Legislatures assume to pass in defiance of the restricted charters granted to them, not by mutual concessions, but by the behest of the Imperial Parliament, the source of all power,-executive, legislative and judicial, within the realm. And that sovereign power, in its supremacy, has said to each of the Legislatures of this Dominion :-- -"Thus far shalt thou go, and no farther." On the few occasions when the judges of the Dominion have been called upon to decide this question, they have been unanimous, with one exception. I therefore, in the second place, refer to the opinions pronounced by them in similar cases. In New Brunswick, in the case of The Queen v. Chandler, in re |