Syndicate, but a few years after the decision of Smiles v. Belford came the remarkable series of decisions by the Judicial Committee of the Privy Council dealing with the status of colonial legislatures, beginning with the familiar case of Hodge v. The Queen, 9 App. Cas. 117. In that case the Judicial Committee took a very wide view of the powers delegated by the British North America Act. The Court declared that "when the British North America Act enacted that there should be a legislature for Ontario, and that its legislative assembly should have exclusive authority to make laws for the Province and for the provincial purposes in relation to the matters enumerated in s. 92, it conferred powers not in any sense to be exercised by delegation from, or as agents of, the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by s. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subject and area the local legislature is supreme and has the same authority as the Imperial Parliament or the Parliament of the Dominion would have had under like circumstances," etc.

In the Ontario Court of Appeal Mr. Justice Burton had in the same case used language very similar to that of their Lordships of the Judicial Committee above quoted. He declared that "it would seem a misapplication of terms to refer to the Provincial Legislature as exercising a delegated authority in the sense of being an agent or delegate of the Imperial Parliament. The Imperial Parliament has the power no doubt to pass laws such as those passed by the local legislature and affecting all her Majesty's subjects in the Province, but it is equally clear that it is a power existing in name only, and one which it would never attempt to exercise, and therefore the Parliament of the Province cannot in that sense be spoken of as exercising a delegated authority."

In the subsequent cases referred to-Harris v. Davies, 10 App. Cas. 279; Powell v. Appollo Candle Co., 10 App. Cas. 282; Riel v. The Queen, 10 App. Cas. 675-the Judicial Committee took occasion to reiterate this view, and to call attention to the fact that their decisions had "put an end to a

doctrine which appeared at one time to have had some currency that a colonial legislature is a delegate of the Imperial Legislature." Is not that now exploded "doctrine" the foundation upon which the Court of Appeal built its argument in Smiles v. Belford?

The decisions of the Privy Council, though not directed to the subject of copyright, are of course as applicable to that subject as to any other of the twenty-nine subjects enumerated in the 91st section of the British North America Act. They are, moreover, in entire harmony with the views of the constitutional writers. It will be sufficient to cite an extract or two from Todd's Parliamentary Government in the British Colonies. Mr. Todd declares that the extension to Canada and Australia of the principle of local self-government set the seal upon all former concessions and enlarged the bounds of freedom and independence in the determination of all questions of local concern by establishing in those colonies institutions which were expressly designed to be "the very image and transcript" of the parent state.

As an illustration of the complete abandonment by the Imperial Government of control over colonial legislation, Mr. Todd cites the reply made in 1859 by Sir Alexander Galt, the Canadian Minister of Finance, to a despatch from the Colonial Secretary conveying the protest of certain Sheffield manufacturers against the then lately enacted Canadian tariff. Sir Alexander wrote, that he deemed it to be his duty "distinctly to affirm the right of the Canadian legislature to adjust the taxation of the people in the way they deemed best, even if it should unfortunately happen to meet the disapproval of the Imperial ministry. Her Majesty cannot be advised to disallow such acts unless her advisers are prepared to assume the administration of the affairs of the colony." "This position," he added, "must be maintained by every Canadian minister." The Imperial Government did not attempt to question the soundness of the position taken by Canada in 1859.

The attitude of the Imperial Government in the matter of copyright is in its constitutional aspect precisely as though it were to insist that British patents of invention should run

throughout Canada, or were to enact a tariff law for Canada, or were to impose direct taxation on the people of Canada. It will, of course, be freely conceded that the Imperial Parliament might as a matter of technical law, without the request or consent of Canada ("limitations of good faith and national honour not being considered ") repeal the British North America Act, or impose direct taxation upon the people of this country, or an import duty on say tea, or an export duty on wheat or lumber. But Canadians have rights under the British constitution as well as Englishmen, and such laws while technically legal would, though enacted by the Imperial Parliament, beyond doubt, be unconstitutional: and if there were a British Court corresponding to the Supreme Court of the United States, they would, if enacted, be declared to be unconstitutional and void. In the absence of such a Court, the Imperial Parliament is, humanly speaking, and within the bounds of the British Empire, omnipotent. Not only so, but the Imperial Parliament of to-day cannot bind the Im-perial Parliament of to-morrow. The question, therefore, whether the attitude of the Imperial Parliament on the subject of copyright in Canada is constitutional or not is in a purely academic one. In other words, the attitude of the Imperial Parliament on a given subject may be uncon stitutional, but, whatever it is, it is necessarily legal: and if it be clear that it is the intention of the Imperial l'arliament that the Imperial copyright law shall extend to Canada, then the Courts must undoubtedly enforce the law as they find it. It is worth noting that the Privy Council cases above referred to do not appear to have been cited in the argument of Morang v. Publishers' Syndicate.

sense a

The mere circumstance that British governments have from time to time insisted upon a view inconsistent with the modern view of the legislative power of the self-governing colonies is of course in no way conclusive of the question. The government of the day has no authority to interpret the laws of Parliament.

Nor is it worth while arguing the question whether the existing British copyright law is a good or a bad law. The opinions of the latest writers on the subject, as we have

seen, is that the British law is in a "lamentable condition." But if it were a good law and well suited to Canada, the argument against it on its constitutional side would be just the same. It is not a question of detail as to the terms of the law; but of principle as to who shall make it. Perhaps the British Parliament could make a better tariff for Canada than our own Parliament. If any one is sanguine enough to believe that to be true, no one will, at all events, be foolish enough to suggest that Canada should relinquish to Great Britain her undoubted right to make her own tariff. Yet Canada's right to make her own tariff stands on no higher or different ground from her right to make her own copyright laws.

Toronto

W. E. RANEY.

RECENT CASES FROM THE TIMES REPORTS.*

Injunction.]-The Court of Appeal, while not disapprov ing, and one member expressly approving, the views, as to granting a mandatory injunction in cases of breach of covenant, expressed in Bickmore v. Dimmer, 18 T. L. R. 416, noted 22 C. L. T. 178, reversed the judgment on the ground that under the circumstances the erection of the clock in question was not an "alteration" of the demised premises, and therefore that no breach of the covenant against alteration had taken place.

Insurance. The policy of assurance in question in In re Browne's Policy, 19 T. L. R. 98, effected by a married man, was expressed to be "for the benefit of his wife and children." The wife living at this time having died, the assured married again, and at his death left him surviving the second wife and children by both marriages. Section 11 of the Married Women's Property Act, 1882, provides that "a policy of assurance effected by any man on his own life, and expressed to be for the benefit of his wife, or of his children, or of his wife and children, or any of them, shall create a trust in favour of the objects therein named." It was held that the policy should be construed as intending to make provision for all persons of the designated classes existing at the time of the assured's death, and therefore that the second wife and all the children took under it. The provisions of the Ontario Insurance Act, R. S. O. 1897 c. 203, s. 159, though more elaborate, are in many respects similar to those of the Imperial Act, and this case should be compared with Mearns v. Ancient Order of United Workmen, 22 O. R. 34, where under a policy by a widower payable to his "legal heirs," it was held that the second wife, who survived him, took nothing; and In re Eaton, 23 O. R. 593, where the second wife also failed in her claim to share, the Christian name of

*Including the cases in No. 7, Vol. 19, to 16th January, 1903.