It may seem odd at a crisis like this in the history of the empire and of mankind to be thinking and writing of academic questions of law, but the Editor has asked me to contribute an article to the University of Toronto Law Journal as a token of the sympathy and fellow-feeling of lawyers on both sides of the Atlantic. I am glad to be able to comply with his request and I do so also as a token of appreciation of the noble efforts that Canada is making for the cause which is so dear to the hearts of all of us. What Canada is doing is also being done by the other sister nations of the empire—the great Dominions—the colonies and India. All are united not by material or formal bonds, but by ties of kindred and by a common devotion to the cause of the free spirit and dignity of man, of the supremacy of law over tyranny, treachery, and brute force. The common law which binds together the English-speaking countries has been well called the law of the free peoples. We are confident that the forces of evil are ephemeral compared with that law. We can without impropriety forget for a brief space the pressing evils and dwell a little on that which will survive them, the common law.

In accepting the honour of writing an article for The Cambridge Law Journal, and in deciding to review some aspects of Canadian constitutional law, I realize that I must assume a good deal of knowledge on the part of my readers, otherwise it would be difficult to know where to begin, where to end, what to say, what to omit. For my immediate purposes it will be sufficient to point out that Canada is a federation of nine provinces created under the British North America Act, 1867, carrying on its executive, legislative, administrative and judicial activities in public and private law under that Act and its amendments and under the great landmarks of English constitutional law in so far as not modified or changed by validly enacted federal or provincial legislation. Legislative powers are divided between the federal and provincial legislatures in such a way as to exhaust the whole field, which is not fenced, as in the constitutional law of the United States, with any constitutional limitations. Granted the legislative power, the manner of its exercise cannot be questioned in the Courts by any arguments drawn from a Bill of Rights, or by the many refinements, moral, political or legal, which flow from ‘the privileges and immunities’ or ‘due process’ clauses of the American constitution. In Canada the doctrine of legislative supremacy prevails. Canadian legislative powers are distributed under the creating Act of 1867. To the provincial legislatures belong certain exclusive enumerated powers under section 92, while, under section 91, the undefined residue belongs to the parliament of the Dominion. For the moment detail is unnecessary. I purpose to view (a) the immediate historical evolution of these legislative powers in order to appreciate (b) the judicial process in relation to them. I shall not concern myself with the minutice of this process, fascinating as they are, but confine myself to certain aspects of it which have become fundamental. I shall conclude (c) with a short view of the treaty-making power, as already it is under further discussion in Canada in the hope of peace ahead. I have specially selected these points of view for a law journal, because federalism and federal law and the judicial process in relation to them are matters of perennial interest and are already in prominence in connexion with the proposed reconstructions of the world. In addition, the judicial process in relation to the British North America Act, 1867, provides an important chapter in the study of stautory interpretation—a subject of equal perennial interest. I refrain from adding anything of a comparative nature, for I have neither the space nor the qualifications to go beyond legal analysis and reach the economic and social life of other federations, without an expert knowledge of which comparative law is of little worth.

Works of fiction are often valuable as records of contemporary life, and may also be of peculiar interest to lawyers. ‘It is always difficult,’ says Sir William Holdsworth, ‘for a legal historian to reconstruct the atmosphere of the period with which he is dealing.’ Statutes, law reports and legal text-books are insufficient for this purpose because—with certain notable exceptions such as the earlier Year Books and the De Laudibus of Fortescue—they do not tell us much about the manner in which legal business was carried on, nor do they throw much light on the characteristics of judges and practitioners. A wealth of material of this kind is, however, to be found in the writings of our English novelists though only a select few can be relied upon to present a reliable picture of the law as it was in their time. The lay writer who ventures into the domain of the law must necessarily do so at his peril. Trollope was fully alive to this danger when he made the suggestion that ‘writers of fiction should among them keep a barrister in order that they may be set right on such legal points as will arise in their little narratives and thus avoid that exposure of their own ignorance of the law which now, alas! they make.’

One of the salient points made in Dr. Radzinowicz's article is that the government publications collectively and inaccurately known as ‘Blue books’ have been almost totally ignored in our histories of Criminal Law. But his point is equally valid with respect to the history of many other branches of the law. One reason for this neglect is the inadequate bibliography of these historical sources. No doubt there has been some improvement in this respect during the last generation, but my own experience in using them has been that, except for the series styled ‘British and Foreign State Papers’ and the Calendars of some ancient state documents, their indexing is very imperfect. Yet the wealth of historical material in them is inexhaustible. What Maitland said of the unprinted sources of legal history might be applied to the publications that have been printed by government authority.

The history of lunacy administration can be traced back with reasonable certainty to 1339, the assumed date of the Statute de Prerogativa Regis, which limited the King's jurisdiction (already existing) over the estates of idiots or natural fools, whose profits he was to take, but for whom he was to find necessaries. For anyone ‘that beforetime hath had his wit and memory’ and should ‘happen to fail of his wit’ or, as would now be said, became a lunatic or of unsound mind, the King was to keep his estate safe and maintain him and his household competently out of the profits, but the King was to take nothing for his own use. By the Statute 32 Hen. VIII, c. 46 (1540), which established the Court of the King's Wards, the residue on the lunatic's death was to be paid over to his Executors or Administrators.

Though Professor Chafee is best known in this country as an equity lawyer, he has won eminence in the United states as an upholder of civil liberties. His book on Freedom of Speech, which was published in 1920, vigorously denounced the use of war legislation to curb the expression of unpopular left-wing views, and he followed this up in 1928 with a collection of interesting essays called The Inquiring Mind. With two associates he prepared the famous Report on Lawlessness in Law Enforcement for the Wickersham Commission, and in 1932 the Mooney-Billings Report, which is recognized as an authoritative statement of the facts in that cause célèbre. Of the present work he says in the preface: ‘What I have done is to fuse in this book all my ideas past and present on freedom of speech.’