Any penalty for a neglect of duty should fall on him, but even this would not be just, as he may be deceived by false evidence.

It cannot be assumed that the issuing of licenses is for revenue purposes. Such trifling with the most sacred rights of a community for such purpose would justify the denunciation of the tax as immoral. If the discipline of the several churches could make the publications of banns obligatory on all, then the simple remedy would be the adoption of that rule.

This the Church of Rome professes to do. Whether the law will recognize such a pretension is a point which is open to discussion, and brings up the consideration of the Law of Marriage in this Province.

I may on a future occasion discuss this question and close the present remarks, by stating that although the use of marriage licenses under the Quebec Act is restricted to Protestant ministers of the Gospel, their effect may extend beyond the Protestant people, and that mixed marriages and the marriage of Roman Catholics under Crown licenses may give an importance and an effect to this Act not contemplated by the Quebec Parliament.

W. B. LAMBE.

Montreal, 29th December, 1871.

RAILWAY GRANTS.

The construction of railroads as aids to the settlement of our public lands is an enterprise of the highest national importance, and as such ought to receive from the community and from the Government all the assistance which they can command. Every person must have seen with satisfaction the liberality with which our rural and urban municipalities have subscribed to the stock of the various companies now in process of organization or which are already pushing on the construction of new lines. The Provincial Legislatures have resolved to insure the success of these enterprises by granting to them large tracts of the public lands. Are these grants constitutional? Such is the question to which the writer purposes to draw public attention. This point of constitutional law would have been raised more opportunely before the incorporatiou of these companies; but it cannot be denied, even at the present time, that it is one of great practical importance. If the success of the present railway movement depends in great measure on the grant of those public lands; if the money votes of the municipalities have been given on the faith of these grants, it becomes necessary to ascertain that their legality cannot be called in question. If the constitution is defective in this respect, it must be amended, not violated. The following opinion is published only after a full discussion in the editorial committee of the Revue, and after having received the approbation of several confrères of the Montreal Bar.

By the common law, all the public lands are the property of the Crown. It was formerly a disputed question whether the Kings of England had the right to alienate the Crown Lands. In course of time the Kings certainly exercised the right of granting the Crown Lands at their pleasure. But the exercise of this prerogative having greatly impoverished the Crown, it has been restrained by several modern statutes.*

In the Province of Canada previous to 1867, the public lands were the property of the Crown for Provincial purposes and sub

* 5 Cruise's Dig., 46; 2 Greenleaf on Real Property, 39.

ject to many restrictions enumerated at length in chapters 22, 23 and 24 of the Consolidated Statutes of Canada. Certain free grants could even be made by the Governor in Council. As to the Legislature, its power over the public lands was unlimited.

Under the British North America Act of 1867, the tenure of the public lands has undergone very large modifications. The ownership is vested in the Dominion or in the Provinces, according to the nature and situation of the property. With regard to the Dominion, section 108 declares that "the Public Works and Property of each Province enumerated in the third schedule in this Act, shall be the property of Canada." This property comprises the canals, public harbours and fortifications, and others of a like nature.

The right of ownership in the Dominion of this property is absolute and free from all restriction. Section 91 enacts that the exclusive legislative authority of the Parliament of Canada extends to certains matters therein specified and particularly to "the public debt and property."

Is it thus with the right of ownership vested in the several Provinces? Section 109 declares: "All lands, mines, minerals and royalties belonging to the several Provinces of Canada, Nova Scotia and New Brunswick at the Union, and all sums then due and payable for such lands, mines, minerals and royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia and New Brunswick, in which the same are situate and arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same."

Thus, the public lands are the property of the Provinces, subject to the restrictions imposed by the law. There is no doubt that if the Imperial Parliament had not made any other provision, the Provincial Legislatures could dispose of the public lands in the same manner as the heretofore Province of Canada, subject to the trusts established by previous laws, such as the trusts in favour of the Clergy, the Indians and the Schools. But the constitution, adopting in this respect a policy wholly different from the one applied to the Dominion, has taken care to limit the exercise of the right of ownership of the Provinces to certain objects. It declares at section 92, par. 5, that the exclusive authority of their legislatures shall extend, not to the ownership of the public property or lands of the Province, but to "the management and sale of the public lands belonging to the Province and of the timber and wood thereon."

Thus, then, the Province is proprietor of the public lands; she can administer and sell them, but she cannot make a gift of them. Without this 5th paragraph, she might dispose of them according to her good pleasure by sale, gift or otherwise; but with these expressions the enumeration of the powers given ought to be interpreted as limiting and exclusive, according to the maxim qui dicit de uno negat de altero.

It cannot be asserted that the 16th paragraph, giving to the local legislature jurisdiction "generally in all matters of a merely local or private nature in the Province," gives to it by implication the right of making land grants. That paragraph, in fact, relates only to matters which have not been expressly provided for by the constitution. Now, as the public lands have been arranged in a certain way, it cannot be supposed that it was the intention of Parliament that the Local Legislature should dispose of them in a different way.

The intention of the Imperial Parliament appears to have been to ensure the permanency of the local revenues and to put the lands beyond the reach of great corporations religious or otherwise, like those railway companies which in the United States have become mighty political potentates through the aid of numerous land grants. There can be no doubt that it is in the highest degree dangerous to abandon the public domain in favor of any corporation which is not under the exclusive control of the Government. This question of high political importance,—the policy of grants of the public lands,—can have no place in the pages of a legal review. But it cannot be denied that the aim of the framers of the constitution was to prevent these grants, seeing that the prohibition bears only upon the public lands and forests, and does not touch the mines, minerals and other royal reserves of the Provinces, nor the property of the Dominion, over which the respective legislatures have absolute and unlimited control. It may be said that the intention of the Imperial Parliament was to confer upon the Dominion Parliament and the Provincial Legislatures the whole of the powers formerly enjoyed by the legislature of the Province of Canada. We can only say of the legislature with Lord Ellenborough in Rex v. Shone, quod voluit non dixit. "If the Legislature intended more," said Lord Denman in Haworth v. Ormerod, "we can only say, that according to our opinion, they have not expressed it."†

"A casus omissus," said Dwarris,* *"can in no case be supplied by a court of law; for that would be to make laws. Judges are bound to take the Act of Parliament as the Legislature have made it."

The grant of public lands by the Imperial Parliament to the Provinces must be strictly interpreted; it must, in fact, be regarded as a grant by the Crown; that is most favorably to the Imperial Parliament and against the Provinces. "A grant made by the King," says Blackstone, (lib. II, p. 347.) "at the suit of the grantee, shall be taken most beneficially for the King and against the party...... The King's grant shall not enure to any other intent than that which is precisely expressed in the grant." "The King's grant," says Cruise, vol. 5, p. 53, " are construed in a very different manner from conveyances made between private subjects; for being matter of record, they ought to contain the utmost truth and certainty; and as they chiefly proceed from the bounty of the Crown, they have at all times been construed most favorably for the King and against the grantee, contrary to the manner in which all other assurances are construed."

Story lays down as a rule of interpretation of the American Constitution-similar to ours in so many respects the following principle: "A rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic or even mischievous. If it be mischievous the power of redressing the evil lies with the people by an exercise of the power of amendment."† Further on (sec. 207) the learned commentator remarks: "It is often said that in an instrument a specification of particulars is the exclusion of another. Lord Bacon's remark that as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated, has been perpetually referred to as a fine illustration."

It has been also said, that a statute must be construed, if pos sible, so as to give sense and meaning to every part, and the maxim expressio unius est exclusio alterius is never better applicable than in the interpretation of a statute. ‡

Dwarris, p. 605, says: "The maxim is clear, expressum facit cessare tacitum, affirmative specification excludes implication."

Brown's Legal Maxims, p. 592; 9 Johns, U. S., 349.