The function is the same. But differences arise in the manner of its performance from the differences between the Constitutions of the three countries.

It is unnecessary to labour this point in its application to the Canadian or Australian Constitution. It is, indeed, little more than an expression of the distinction between the legislative, executive and judicial powers of government, which has already been referred to in the chapter on "the powers of the Central Government." And the nature of the distinction between the legislative and the judicial power is defined in more detail at the end of this chapter. But the following extract from a judgment of Henry, J.,* puts the duty of the Supreme Court of Canada in Canada. performing its functions so clearly that it may be quoted here :—

"It has been properly said that it is a serious matter to consider and decide that an act of à legislature is ultra vires; but it is much more serious and unfortunate, by any judicial decision, to destroy the Constitution of a country. The importance of our decision arises, not nearly so much from any effect it may have upon the Act in question, which in itself claims from us the most patient and deliberate consideration, but from the general result, in view of the Constitutional relations established by the Imperial Act in question."† And the importance of the duty of the Supreme Court of Canada in performing its functions, as affecting the rights of individuals, was insisted upon by O'Connor, J.‡ in the following words :

"It is the privilege of every man to insist that his rights and interests shall be regulated by laws of undoubted validity. The sooner, then, a statute which is seriously believed by many, and especially by a considerable portion of the legal profession, to be unconstitutional is authoritatively pronounced upon the better. The public interest requires that proceedings under such a statute should be stayed if it be void; or, if possessed of the authority it purports to have, it is necessary, or at least advisable, that doubts respecting it should be set at rest by a declaration of the proper tribunal, clothed with the necessary authority."§

Exactly the same principle applies to the exercise of its functions by the High Court of Australia. The real difference between the Limits to Judicial Power. functions of the Central Judicature of the United States and that of Canada or Australia is that whereas those of the Supreme Court Canada and of the United States depend upon and are exercised under the Australia. Constitution without interference from any other department of the Government; those of the Central Judicature in Canada and Australia are exercised subject to the influence of the Executive Department of the Government, which can be brought to bear in two ways. The first of these ways, by which the direct influence of the Executive can be brought to bear on the Judicature, has been already referred to. It is through the exercise of the Royal prerogative of granting leave to appeal to the Privy Council. The second, by which the functions of the Central Judicature of Canada or Australia are indirectly invaded, is the right of the Sovereign-acting either as the King in Council, or through a Governor-to veto legislation passed by either the Central or the City of Fredericton vs. the Queen. 3 S.C.R. at p. 545. Quoted by Lefroy: "Leg. Power in Canada," p. 266. Gibson vs. Macdonald : Ontario Appeal Rep. at p. 416. § Quoted by Lefroy: "Leg. Power in Canada," p. 267.

L

Judicature and
Legislature.

Local Legislature. This power of veto has been fully discussed in the chapter on "the Governor-General." As far as its influence upon the performance of the functions of the Central Judicature in Canada and Australia goes, it is rather an invasion of, than a limitation on, the functions of those Central Judicatures-as compared with the functions of the Central Judicature of the United States-inasmuch as it introduces an element which is quite foreign to the United States Constitution.

III. Distinction between Judicial and Legislative Functions.

It is difficult to draw the line between judicial and legislative functions in particular instances though the principle is clear :

"It is said that that which distinguishes a judicial from a legislative act is that the one is a determination of what the existing law is in relation to some existing thing already done or happened, while the other is a pre-determination of what the law shall be for the regulation of all future cases falling under its provisions."*

But though this definition is clear so far as it goes, it does not completely cover the ground; for plainly a law which declares or modifies existing rights, or which is retrospective, may have in practice the effect of a judicial decision. Messrs. Quick and Garran [Ann. Const. Aust. Comm., p. 721] give a very concise and clear summary of the practical difficulties which have arisen from the confusion of the legislative with the judicial functions of government. They point out that in the United States the matter is further complicated by those specific limitations on the judicial power-contained in the Constitution of the United States-to which reference has already been made in this chapter. As far as the judicial power in the United States is concerned," the practical result is that retrospective or declaratory Acts [of the Legislature] have usually been held void, apart altogether from the question of invasion of the judicial power, so far as they disturbed existing rights."

But these specific limitations have not been included in the Constitution either of Canada or Australia. The question, therefore, which arises, as far as the relations of the judicial and legislative powers under those Constitutions are concerned, is :-What is the application of the principle stated above to a case where the Courts have interpreted the existing law in one way, and the Legislature afterwards, by a declaratory enactment, has in effect declared the judicial interpretation to be unfounded and unwarrantable?" And

here:

"The simple rule would seem to be that, just as the Legislature cannot directly reverse the judgment of the Court, so it cannot by a declaratory law affect the rights of the parties in whose case the judgment was given. That is to say, the Legislature may over-rule a decision, though it may not reverse it; it may declare the rule of law to be different from what the Courts have adjudged it to be and may give a retrospective operation to its declaration, except so far as the rights of parties to a judicial decision are concerned. In other words, the sound rule of legislation, that the fruits of victory ought not

* Cooley : "Constitutional Limitations,” p. 91. Quoted in "Ann. Const. Aust. Comm.,” p. 721.

to be snatched from the successful litigant, is elevated into a constitutional requirement; but the general question of retrospective legislation is left to the discretion of the Legislature.'

"On the other hand, the Courts cannot be clothed with legislative or executive powers; or decide questions which in their nature are not judicial but political." Thus there have been several instances in the United States of a refusal by the Court to interfere with the exercise of political discretion by the Executive. "The Congress is the legislative department of the Government; the President is the executive department. Neither can be restrained in its action by the judicial department, though the acts of both, when performed, are, in proper cases, subject to its cognizance."

"The distinction between the judicial and political powers has received recognition by English Courts. Thus it has been decided that political treaties between a foreign State and a subject of the Crown acting as an independent State under powers granted by charter are not subject to Municipal jurisdiction, and a bill founded on such treaties was dismissed."‡

IV. Performance of the functions of the Central Judicature :

Though the two functions of a Central Judicature are essential Performance of Functions. elements of government under a written Constitution, the whole tendency of the way in which those functions are performed is to conceal the fact of their being so performed. Thus Professor Moores points out that "the duty of passing [judgment] upon the validity of Acts, whether of the Commonwealth or of the State Parliaments, exists purely as an incident of the judicial power. . . . It is the duty of every Court to administer the law, of which the Constitution is a part and a superior part." And he quotes from Dicey || the following passage, which puts the essence of the theory of judicial action very clearly:

"The Judges of the United States control the action of the Constitution, but they perform purely judicial functions, since they never decide anything but the cases before them. It is natural to say that the Supreme Court pronounces Acts of Congress invalid, but in fact this is not so. The Court never directly pronounces any opinion whatever upon an Act of Congress. What the Court does is simply to determine that in a given case A is or is not entitled to recover judgment against X ; but in determining that case, the Court may decide that an Act of Congress is not to be taken into account, since it is an Act beyond the constitutional powers of Congress.”

Professor Moore goes on to point out that the Court will not decide a case which is merely fictitious and got up for the purpose of eliciting a decision upon the constitutionality of any Statute. In fact the Supreme Court of the United States has gone even further than that, and has decided that it cannot hear what is known as a "friendly" or "test" case, i.e., "one in which are present all the facts which ordinarily give jurisdiction to the Courts and raise an issue but [in which] there is a substantial identity of interest

Ann. Const. Aust. Comm.," p. 722.

fi.e., the ordinary jurisdiction of English Courts.

Nabob of Cainatica vs. East Ind. Co. 1 Ves. Jun., 375-393; 2 id., 56-60.
"The Commonwealth of Australia, p. 236.
"Law of the Constitution," p. 155.

Judicature as
Adviser.

of the parties, or the acts which give rise to the action have been done for the purpose of creating an issue to be tried." The English Courts, on the other hand, have frequently heard and decided such friendly" suits. The reason for the different attitude of the English and American Courts is no doubt the fact that the English Courts have only to determine the construction or meaning of a law about whose constitutionality there can be no question; whereas the American Courts are constantly asked to say in effect whether a given law passed by the Legislature is constitutional or not. And here again the position of a Court established under a Union of British. Colonies is between that of the United States and the British Courts. Thus in Canada the practice has arisen of questions affecting the constitutionality of legislative enactments being taken up by the public authorities. For instance, Professor Moore cites the case of The Attorney-General for Ontario vs. Mercer, "where the contest was virtually as to whether certain prerogative rights in land belonged to the Crown in right of Ontario or of the Dominion of Canada. The defendant was content with the judgment of the Court of first instance, but the Dominion of Canada appealed in the name of the defendant, and was heard in the Supreme Court and in the Judicial Committee [of the Privy Council]. The latter treated the public character of the case as reason for making no order as to costs."

Closely related to this point of Canadian practice is the question whether either the Legislative or Executive departments of government can take the advice of the Judicature as to their constitutional powers. In Great Britain the House of Lords has power to consult the Judges, and the Crown can refer to the Judicial Committee of the Privy Council for hearing or consideration any matters which may seem fit. In Canada, also, as is stated in Appendix C, the GovernorGeneral in Council, as well as either House of Parliament, may refer to the Supreme Court certain specific matters. The hearing of such a reference by the Dominion Supreme Court takes the form of a judicial proceeding; parties interested may be represented by counsel, and the finding of the Court is practically a declaratory judgment, on which an appeal may be taken to the Queen in Council." In certain States of the United States a similar provision for reference to the Judicature has been made. But "such opinions [says Professor Moore] are never regarded by the Judges themselves as authoritative, and may be departed from by the Courts even when constituted by the Judges who have given the opinion; they are given under an obvious disadvantage, since the Judges have not the assistance of the arguments of counsel." On the other hand, the Supreme Court of the United States has set its face against the decision of matters brought before it merely on reference; and Professor Moore is of the opinion that in the Commonwealth [of Australia], as in the United States, it is judicial power which is vested in the Courts, and it is clear that the advisory function is not included in that power, even when the Court may hear evidence and arguments to aid it in giving advice."†

* 1883. A.C., 767.

"The Commonwealth of Australia," p. 242

CHAPTER XI.

ESTABLISHMENT AND JURISDICTION OF A CENTRAL JUDICATURE.

1. ESTABLISHMENT:

The Canadian Constitution contains no provision for the actual Canada. establishment of Central Courts, though Sec. 101 of the British North America Act says that the Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance, and organisation of a general Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the laws of Canada.'

Under the power given by this Section, the Supreme Court of Supreme Court. Canada was established in 1875 by the Dominion Act 38 Vict., cap. II. [Since amended by the Revised Statutes of the Dominion of Canada, 1886, cap. 135, and by 54 and 55 Vict., cap. 25.]* It holds its sittings three times a year at Ottawa-in February, May and October. It is presided over by a Chief Justice and five Puisne Judges, two of whom must have been members of the Quebec Bar, and all of whom must reside within five miles of the city of Ottawa. Its jurisdiction is detailed in Appendix C.

"The Exchequer Court is presided over by a single Judge, and Exchequer can sit anywhere in Canada. It is also a Colonial Court of Court. Admiralty [54 and 55 Vict. (Dom.) c. 29], having jurisdiction throughout Canada and its waters, whether tidal or non-tidal, or naturally navigable or artificially made so, and all persons shall have all rights and remedies in all matters connected with navigation, shipping, trade or commerce, as may be had or enforced in any Colonial Court of Admiralty under the Imperial Colonial Court of Admiralty Act, 1890, 53 and 54 Vict., c. 27. Local Courts of Admiralty have been established in accordance with the Dominion Act in Quebec, Nova Scotia, New Brunswick, British Columbia and Toronto district, the limits of which are elastic and may be altered by the Governor-in-Council." [Wheeler: "Confederation Law of Canada," p. 395.j

In contrast to that of Canada, the Constitutions of the United United States States and of Australia specifically provide for the establishment and Australia. of Central Courts. Thus Article III., Sec. 1 of the United States Constitution says that :

*A summary of the history, constitution and powers of the Provincial Courts in Canada is given by Wheeler: "Confederation Law of Canada' PP. 390-404.