By an Order in Council following the 33 Vic. c. 3, the Province of Manitoba was formed out of the territories referred to in the above statutes, and by a statute of the Parliament of Canada (34 Vic. c. 14) the entire body of the modern criminal law of England, as existing in the rest of the Dominion, has been extended to this Province (a). Under the latter statute, the Imperial enactments above referred to, have been superseded as to the Province of Manitoba, and the justices in that Province have the same power and jurisdiction over persons charged with indictable offences committed therein, as justices in other parts of the Dominion have over persons committing offences within their several jurisdictions.

By s. 2, the Court known as the General Court has power to hear, try and determine, in due course of law, all treasons, felonies and indictable offences committed in any part of the said Province or in the territory which has now become the said Province. This statute assimilates the procedure in criminal cases to that existing in the other Provinces and obviates the necessity for any recourse to the Imperial statutes before mentioned.

Indeed it would seem that under this statute, and the British North America Act, 1867, the officers and courts in Manitoba have now exclusive jurisdiction over all offences committed therein.

It may be observed, before proceeding to treat of the representative assemblies existing in the several Provinces of the Dominion, that the Crown has power to create a local Legislative Assembly in a colony, whether conquered, ceded, or settled. (b)

In 1791, by the Imperial Act 31 Geo. 3, c. 31, the former Province of Quebec was divided into the two Pro

(a) See charge of Mr. Justice Johnson to the Grand Jury, Spring Assizes, 1871. (b) Phillips v. Eyre, L. R. 7 Q. B. 1. (Ex. Chr.)

vinces of Upper and Lower Canada, a separate Constitution and independent powers of legislation were granted to each, this power of legislation being vested in the Legislative Council and Assembly of each Province, and requiring the assent of the Crown, expressed through the Governor, to any measure becoming law. Prior to the passing of this statute, the legislative power was vested in the Governor and Council. In 1840, the 3 & 4 Vic. c. 35, made provision for the re-union of the Provinces of Upper and Lower Canada, and repealed the 31 Geo. 3, c. 31, as to the grant of a separate Constitution and legislative powers. It enacted that there should be within the Province of Canada one Legislative Council and one Assembly, to be called, "The Legislative Council and Assembly of Canada," and provided that Her Majesty should have power, by and with the advice and consent of the said Legislative Council and Assembly, to make laws for the peace, welfare, and good government of Canada, subject to certain limitations contained in the Act. From 1840 till the 1st of July, 1867, the right of legislation in the Provinces of Ontario and Quebec was founded on the Act of Union. On the 2nd of October, 1758, a Legislative General Assembly, having independent powers of legislation, was granted to the Province of Nova Scotia, of which New Brunswick then formed a part, (a) and on the 16th of August, 1784, a separate and distinct Legislative General Assembly, with the like rights, privileges and powers as had been before conferred on and enjoyed by the House of Assembly in Nova Scotia was granted to New Brunswick. (b)

By the British North America Act, 1867, the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick,

(a) Hill v. Weldon, 3 Kerr, 43 per Chipman, C. J.

(b) Ib, 44, per Chipman, C. J.

were federally united into one Dominion, under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution, to a great extent a written one, (a) and similar in principle to that of England. By this Act power is given to the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada. The right to legislate as to the criminal law, including also the procedure in criminal matters, is vested in the Dominion Parliament, to the exclusion of the Local Legislatures of the several Provinces. The Act has, in this respect, entirely changed the Legislative Constitution of each Province; the Imperial Parliament has intervened, and, by virtue of its supreme legislative power, has taken from the subordinate legislative bodies of the Provinces the plenary powers to make laws which they formerly possessed. Where, under the terms of this Act, the power of legislation is granted to be exercised exclusively by one body, the subject so exclusively assigned is as completely taken from the others as if they had been expressly forbidden to act on it, and if they do legislate beyond their powers, or in defiance of the restrictions placed on them, their enactments are no more binding than rules or regulations promulgated by any other unauthorized body. (b) When, however, the Local Legislatures have power to legislate on any particular subject, it does not follow that they have no power to make any violation of their provisions in relation thereto a crime even in the technical sense of the term. No doubt it was intended that the Local Legislatures should not only have the power, but the exclusive right, to legislate on some subjects; and they have power to

(a) Reg. v. Chandler, 1 Hannay, 54, per Ritchie, C. J.

(b) Ib. 557, per Ritchie, C. J.

legislate so as to impose punishment, by way of fine or imprisonment, for enforcing the laws they make in relation to those subjects, although such legislation makes the act prohibited a crime. (a) In this case it was held that under s. 92, Nos. 9 and 16, of the British North America Act, 1867, the Local Legislature not only had the power but the exclusive right to legislate in relation to shop, tavern, and other licenses, in order to raise a revenue, and that, having such right of legislation on this subject, they had also power under No. 15 to enact that any person who, having violated any of the provisions of the Act, should compromise the offence, and any person who should be a party to such compromise should, on conviction, be imprisoned in the common gaol for three months, and that such enactment was not opposed to s. 91, No. 27, by which the criminal law is assigned exclusively to the Dominion Parliament. (b) But under No. 15, the punishment imposed by the Local Legislatures cannot be cumulative. It must be either fine, penalty, or imprisonment, and it cannot be both fine and imprisonment. (c)

In another case it has been held that, notwithstanding this section, an indictment signed by an advocate prosecuting for the crown, and as representing the AttorneyGeneral for the Province of Quebec, and not as representing the Minister of Justice for the Dominion, is valid. (d)

By the 33 Vic. c. 3, a Constitution similar to that existing in the other Provinces was granted to Manitoba, a Legislative Council and Assembly were created, and certain powers of legislation conferred on them.

While on the subject of our new Constitution and the

(a) Reg. v. Boardman, 30 U. C. Q. B. 555-6, per Richards, C. J.

(b) Ib. 553.

(c) Ex parte Papin, 8 C. L. J. N. 122.

(d) Reg. v. Downey, 13 L. C. J. 193; see also Reg. v. Reno and Anderson, 4 U. C. P. R. 281; Clemens, q. t. v. Bemer, 7 C. L. J. N. S. 126. Reg. v. Pattee, 5 U. C. P. R. 292.

British North America Act, 1867, we may be permitted to treat of the powers which this Act confers on the Parliament of Canada to imprison for contempt, this being, in fact, a consideration of the English parliamentary law prevailing in the colonies. Under s. 18, taken in connection with the 31 Vic. c. 23, the Senate, House of Commons, and the members thereof respectively, now hold, exercise and enjoy the like privileges, immunities and powers enjoyed by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland at the time of the passing of the Act, including the power of imprisoning for contempt (a): and incident to this power there is vested in the Dominion Parliament the right of judging for itself what constitutes a contempt, and of ordering the commitment to prison of persons adjudged by the House to be guilty of a contempt and breach of privilege, by a general warrant, stating simply that a contempt has been committed, without setting forth the specific grounds of the commitment. (b)

The power of imprisoning for contempt inherent in the House of Commons in England, by virtue of the law and custom of Parliament, can only be conferred on colonial Assemblies by express grant. (c) As, therefore, no such grant has been made to the Local Legislatures of the several Provinces of the Dominion, they do not possess the powers enjoyed in this respect by the Senate and House of Commons.

There is no power to imprison for contempt annexed as a necessary incident essential to the existence of a Colonial House of Assembly, by the grant of a Constitution and independent legislative powers, nor is this

(a) See The Speaker of the Legislative Assembly of Victoria, v. Glass, L. R. 3 P. C. App. 560.

(b) Ib.

(c) Ib; Doyle v. Falconer, L. R. 1 P. C. App. 328.