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A. V. Dicey, Lord Watson, and the Law of the Canadian Constitution in the Late Nineteenth Century

Published online by Cambridge University Press:  28 October 2011


It is a well-accepted postulate of Canadian constitutional history that, in the years following the confederation of the colonies of British North America in 1867, the law of the Canadian constitution did not concern itself with individual rights. Rather, constitutional law in the late nineteenth century involved the division of legislative powers between the federal and provincial governments—disputes that neither addressed claims to individual liberty nor the power of an unbridled state. If liberties were at stake, they were subsumed under arguments about which level of government was authorized to legislate on the specific subject matter at issue. In this way, Canadian constitutionalism resembled the “well-regulated society” of the antebellum United States: in the pursuit of the common good, public power was authorized to regulate liberty and private property to the fullest extent possible.

Copyright © the American Society for Legal History, Inc. 1998

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1. See Lefroy, A. H. F., The Law of Legislative Power in Canada (Toronto: Toronto Law Book Publishing Co., 1897-1898), proposition 21, 279–86Google Scholar. For a modern restatement, see Hogg, Peter, Constitutional Law of Canada, 3d ed. (Scarborough: Carswell, 1992), 306.Google Scholar

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3. See Lochner v. New York, 198 U.S. 45 (1905) and discussion in Gillman, Howard, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993)Google Scholar.

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6. The Judicial Commitee of the Privy Council, or the Crown-in-Council, was constituted to advise the Crown in appeals from colonial courts and as advisor was not entitled to express any dissent from the majority opinion. Anson describes the Privy Council, as he does the House of Lords, as a “final court of appeal.” See Sir Anson, William R., The Law and Custom of the Constitution, pt. 2, 2d ed. (London: Henry Frowde, 1896), 463–72Google Scholar.

7. I do not have in mind such commentators as Alan Cairns and Pierre Trudeau, who have argued, post facto, that the Privy Council's jurisprudence of federalism was consistent with the modern needs of the Canadian federation. See Cairns, Alan C., “The Judicial Committee and its Critics,” in Constitution, Government, and Society in Canada, ed. Williams, Douglas E. (Toronto: McClelland & Stewart, 1988), 63Google Scholar; Trudeau, P. E., Federalism and the French Canadians (Toronto: Macmillan of Canada, 1968), 198Google Scholar.

8. (U.K.) 30 & 31 Vict., c. 3. Representative of these writings are Laskin, Bora, ‘“Peace, Order and Good Government’ Re-Examined,” in The Courts and the Canadian Constitution, ed. Lederman, W. R. (Toronto: McClelland & Stewart, 1964), 66Google Scholar; Scott, Frank R., “Centralization and Decentralization in Canadian Federalism,” in Essays on the Constitution: Aspects of Canadian Law and Politics (Toronto: University of Toronto Press, 1977), 251Google Scholar; Canada, Senate, Report Pursuant to the [1939] Resolution of the Senate to the Honourable Speaker by Parliamentary Counsel Relating to the British North America Act, 1867, by O'Connor, W. F., Legislative Counsel (Ottawa: Queen's Printer, 1961)Google Scholar.

9. Vipond, Robert C., Liberty and Community: Canadian Federalism and the Failure of the Constitution (Albany: State University Press of New York, 1991)Google Scholar; Risk and Vipond, “Rights Talk in Canada.” Also see the suggestive review of Vipond's book by Baker, G. Blaine, “The Province of Post-Confederation Rights,” University of Toronto Law Journal 45 (1995): 77100CrossRefGoogle Scholar.

Risk, R. C. B., “Canadian Courts Under the Influence,” University of Toronto Law Journal 40 (1990): 687737CrossRefGoogle Scholar; “Blake and Liberty,” in Canadian Constitutionalism: 1791-1991, ed. Ajzenstat, Janet (Ottawa: Canadian Study of Parliament Group, 1992), 195211Google Scholar; and A. H. F. Lefroy: Common Law Thought in Late Nineteenth Century Canada: On Burying One's Grandfather,” University of Toronto Law Journal 41 (1991): 307–11CrossRefGoogle Scholar; Risk and Vipond, “Rights Talk in Canada.”

Romney, Paul, Mr. Attorney: The Attorney General for Ontario in Court, Cabinet, and Legislature, 1791-1899 (Toronto: University of Toronto Press, 1986)Google Scholar; The Nature and Scope of Provincial Autonomy: Oliver Mowat, the Quebec Resolutions and the Construction of the British North America Act,” Canadian Journal of Political Science 25 (1992): 328CrossRefGoogle Scholar; and “Why Lord Watson Was Right,” in Canadian Constitutionalism, ed. Ajzenstat, 177-93.

10. A-G. Ont. v. A-G. Can., [1896] A.C. 348 (P.C.). See Romney, Mr. Attorney, 280, and “The Nature and Scope,” 4.

11. On the difficulty of studying the work of the judiciary and the socio-legal environment in which it operates, see the classic essay by Lerner, Max, “The Supreme Court and American Capitalism,” Yale Law Journal 42 (1932-1933): 698700Google Scholar. The ideological suppositions of the constitutional common law are explored in Schneiderman, David, “Constitutional Interpretation in An Age of Anxiety: A Reconsideration of the Local Prohibition Case,” McGill Law Journal 41 (1996): 411–60Google Scholar [hereinafter “Constitutional Interpretation”]. This earlier article explores the links between Canadian constitutional law and an ideology that favored the productivity of property, traceable back to Locke's “workmanship” model. The present effort is directed more narrowly at exploring the links between Dicey's version of constitutionalism and a particular result in Local Prohibition.

12. See Dicey, Albert Venn, Introduction to the Study of the Law of the Constitution, 3d ed. (London: Macmillan, 1889)Google Scholar [hereinafter L.C.]. One of the most influential texts of its time, The Law of the Constitution first appeared in 1885 and by 1897 had been through five editions. For a review of the various editions, see Lawson, F. H., “Dicey Revisited. I,” Political Studies 7 (1959): 109–26CrossRefGoogle Scholar, and for a discussion of the significance of Dicey's book for late nineteenth-century thought, see Collini, Stefan, Public Moralists: Political Thought and Intellectual Life in Britain, 1850-1930 (Oxford: Clarendon Press, 1991), 287301Google Scholar. Dicey's admiration for central authority makes Lord Watson's ruling not entirely consonant with Dicey's views. See Stapleton, Julia, “Dicey and His Legacy,” History of Political Thought 16 (1995): 239Google Scholar, and Tulloch, Hugh, “A. V. Dicey and the Irish Question: 1870-1922,” Irish Jurist, new ser., 15 (1980): 143.Google Scholar

13. This part of Watson's ruling has been the subject of critical commentary by Bora Laskin, “The Supreme Court of Canada: A Final Court of and for Canadians,” in The Courts and the Canadian Constitution, ed. W. Lederman, 135, and by Smith, Alexander, The Commerce Power in Canada and the United States (Toronto: Butterworths, 1963), 6668Google Scholar. Laskin, for example, wonders why the Privy Council would liken the division of legislative powers to the powers delegated to a municipality, but makes no connection to the constitutional thinking prevalent at the time. O'Connor is representative of the treatment accorded this aspect of the decision: he says nothing about it. See Report Pursuant to the [1939] Resolution, 9.

14. Greenwood identifies Dicey's description of the American model of federalism as one of the “vague influences” or “miscellaneous ideological factors” which may have swayed the Privy Council. See Greenwood, F. Murray, “Lord Watson, Institutional Self-interest, and the Decentralization of Canadian Federalism in the 1890's,” University of British Columbia Law Review 9 (1979): 257Google Scholar. On the boundary metaphor in legal thought, see Sugarman, David, “The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science,” Modern Law Review 46 (1983): 102–11Google Scholar; Horwitz, Morton J., The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (Cambridge, Mass.: Harvard University Press, 1992)Google Scholar; Kennedy, Duncan, “Towards a Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,” Research in Law & Sociology 3 (1980): 324Google Scholar.

15. See, for example, the discussion in Greenwood, “Lord Watson, Institutional Self-Interest.”

16. Mallory, James R., Social Credit and the Federal Power in Canada (Toronto: University of Toronto Press, 1954), 34.Google Scholar

17. Ibid., 30, 32. Similar insights are made in Mallory, , “The Courts and the Sovereignty of the Canadian Parliament,” Canadian Journal of Economics and Political Science 10 (1944): 167CrossRefGoogle Scholar.

18. Also influencing the Board, Risk writes, was an appreciation of the underlying purposes of the legislation, which, in this case, were moral and social. See Risk, “Canadian Courts Under the Influence,” 734. As I hope to show, the Privy Council also took the occasion to pronounce on legislative purposes which also were economic.

19. Vaughan, Frederick, “Critics of the Judicial Committee of the Privy Council: The New Orthodoxy and an Alternative Explanation,” Canadian Journal of Political Science 19 (1986): 513.CrossRefGoogle Scholar

20. Bagehot, Walter, The English Constitution, 2d ed. (London: Kegan, Paul, Trench, Trubner&Co., 1900), xxiii, xxGoogle Scholar.

21. Ibid., xxiii.

22. Ibid., xxxiv, xxix. This anxiety with “class legislation” was well understood to the readers of John Stuart Mill's Representative Government. Mill was concerned with designing a political regime in which no class, and “no combination of classes likely to combine, should be able to exercise a preponderant influence in the government.” See “Representative Government” in Mill, , Utilitarianism, Liberty & Representative Government (London: J. M. Dent & Sons, 1910), 254.Google Scholar

23. “The Balance of Classes” included among the 1867 Essays on Reform, reprinted in A Plea for Democracy, ed. Guttsman, W. L. (Bristol: McGibbon and Kee, 1967)Google Scholar.

24. Dicey, “The Balance of Classes,” 65. In a regime of self-government, Dicey wrote, “the rich must be the guides of the poor, the poor must put trust in the rich.” See Dicey, A. V., England's Case Against Home Rule (1886; reprint, Surrey: Richmond, 1973), 26Google Scholar.

25. “Why Englishmen Are Not Alarmed at the Political Crisis,” The Nation 1060 (22 Oct. 1885), 341.

26. Ibid.

27. On the “superb confidence” of the mid-Victorians, see Thompson, E. P., “The Peculiarities of the English,” in The Poverty of Theory and Other Essays (London: Merlin Books, 1978), 264Google Scholar.

28. Dicey, , “The Social Movement in England II,” The Nation 968 (17 Jan. 1884), 51.Google Scholar

29. Dicey, , “The Social Movement in England,” The Nation 967 (10 Jan. 1884), 30Google Scholar.

30. Ibid.

31. The Nation 1072 (14 Jan. 1886), 30.

32. Ibid.

33. Roach, John, “Liberalism and the Victorian Intelligentsia,” Cambridge Historical Journal 13 (1957): 59CrossRefGoogle Scholar. Hugh Tulloch characterizes this shift in public opinion as one that feared the “growing sway of numbers over informed opinion” and “which felt keenly democracy's threat to individual liberty” in Tulloch, “Changing British Attitudes,” 834; Tulloch, James Bryce's American Commonwealth. Also see Perkin, Harold, The Rise of Professional Society: England Since 1880 (London: Routledge, 1989), 45CrossRefGoogle Scholar; Perkin, , “Land Reform and Class Conflict in Victorian Britain,” in The Structured Crowd: Essays in English Social History (Sussex: The Harvester Press, 1981)Google Scholar.

34. Sir Maine, Henry Sumner, Popular Government (London: John Murray, 1909), 110Google Scholar.

35. Ibid., 248.

36. See Bryce, James, “Flexible and Rigid Constitutions,” in Studies in History and Jurisprudence (Oxford: Oxford University Press, 1901), 203Google Scholar, and An Age of Discontent,” Contemporary Review 59 (1891): 18Google Scholar.

37. Maine, Popular Government, 208.

38. See Sugarman, David, “‘A Hatred of Disorder’: Legal Science, Liberalism and Imperialism,” in Dangerous Supplements: Resistance and Renewal in Jurisprudence, ed. Fitzpatrick, Peter (Durham: Duke University Press, 1991), 62Google Scholar, and “The Legal Boundaries of Liberty.” For an exposition of American politics in English intellectual life in an earlier period, see Crook, David Paul, American Democracy in English Politics, 1815-1850 (Oxford: Clarendon Press, 1965)Google Scholar.

39. See Dicey, Edward, “The New American Imperialism,” The Nineteenth Century 44 (1898): 492Google Scholar (“To speak the plain truth, the magnum opus of Washington and his colleagues is nothing more nor less than an attempt to paraphrase in writing the unwritten Constitution of the mother country, the place of the constitutional King being replaced by that of the President and the House of Lords by the Senate”). See also Bryce, James, The American Commonwealth, vol. 1 (London: Macmillan, 1897)Google Scholar. And see Tulloch, “Changing British Attitudes,” 837-38, and Bryce's American Commonwealth, chap. 2, for the influence of E. A. Freeman on Bryce and Dicey. Professors at Harvard Law School also were, according to Dicey, “apostles of English law.” See Dicey, A. V., “The Teaching of English Law at Harvard,” Harvard Law Review 12 (1899-1900): 429Google Scholar.

40. Cooley, Thomas M., A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union, 1 st ed. (Boston: Little, Brown, 1868), 6061Google Scholar.

41. 83 U.S. 36 (1872). See the influential dissents of Justice Field (“The common law of England is the basis of the jurisprudence of the United States,” at 104) and Justice Bradley (“The people of this country brought with them to its shores the rights of Englishmen; the rights which had been wrested from English sovereigns at various periods of the nation's history,” at 114). See also Gillman, The Constitution Besieged.

42. For Spencer, see Social Statics (London: John Chapman, 1851)Google Scholar, referring to Justice Holmes's famous dissent in Lochner. On the impartial constitution, see Gillman, The Constitution Beseiged. For freedom of contract, see Forbath, William E., Law and the Shaping of the American Labor Movement (Cambridge, Mass.: Harvard University Press, 1991)Google Scholar. On the need to prevent externalities, see Hovenkamp, Herbert, Enterprise and American Law, 1836-1937 (Cambridge, Mass.: Harvard University Press, 1991)CrossRefGoogle Scholar.

43. Dicey, , “Americomania in English Politics,” The Nation 1073 (21 Jan. 1886), 5253Google Scholar.

44. Ibid., 53.

45. Ibid.

46. Dicey, A. V., “Federal Government,” Law Quarterly Review 1 (1885): 8099Google Scholar [hereinafter F.G.].

47. L.C., 130.

48. L.C., 131.

49. L.C., 135. See also Dicey, England's Case, 23.

50. L.C., 140; EG., 85.

51. L.C, 140, 164; EG., 85.

52. L.C., 154; EG., 93. Dicey, in later editions, replaced the word “probably” with the word “may have.” See Introduction to the Study of the Law of the Constitution, 8th ed. (Indianapolis: Liberty Fund, 1982 [reprint of 8th ed., 1915]), 92Google Scholar.

53. L.C., 148-89. It was not entirely inappropriate for Dicey to draw these comparisons. The doctrine of ultra vires was a recent development in the mid-1800s law of corporations. Although Blackstone had included the power to make by-laws as one of the incidents of a corporation, it was only with the advent of the railways that courts actively policed the boundaries of corporate power by declaring ultra vires acts of corporations beyond their capacities as defined in their terms of incorporation. It is telling that, at the very same time as the doctrine of ultra vires was being developed in the railway cases, the doctrine came to be applied in Canadian constitutional cases. See Caiman v. Eastern Counties Railway Company (1846), 16 L.J. 74 (Ch.); Ashbury Railway Carriage Co. v. Riche (1875), 7 L.R. 653 (H.L.); Brice, Seward, A Treatise on the Doctrine of Ultra Vires, 2d ed. (London: Stevens & Haynes, 1877)Google Scholar; Carr, C. T., The General Principles of the Law of Corporations (Cambridge: Cambridge University Press, 1905), 6471Google Scholar.

54. L.C., 155-56; F.G., 93. Dicey noted “one marked distinction” between the U.S. and Canadian constitutions. This concerned the residual power over unenumerated subjects: in the U.S. the residual power was reserved for the states, in Canada for the federal government (L.C., 142, n. 1). Dicey also mentioned that the “colonial legislatures” including the Domnion of Canada were, within their own spheres of jurisdiction, copies of the Imperial Parliament but subordinate to the Parliament of the United Kingdom (L.C., 102, 105).

55. L.C., 160-62; F.G., 95. Dicey modified this claim by adding the words “in its essential features.” See L.C., 8th ed., 98. Dicey's colleague and friend, James Bryce, provided compelling evidence to the contrary in his The American Commonwealth, vol. 1, 335-41 and contradicted this fiction, in Canada's case, in his Canada: An Actual Democracy (Toronto: The Macmillan Co., 1921)Google Scholar. Also see Laski, Harold J., The Foundations of Sovereignty and Other Essays (New York: Harcourt, Brace, 1921), 56Google Scholar.

56. L.C., 161-62; F.G., 96.

57. L.C., 160; EG., 95.

58. L.C., 162; EG., 96.

59. L.C., 165; F.G., 98 (Munn also is referred to at L.C., 153, n. 1; F.G., 87, 92). The case concerned the ability of the state of Illinois to set maximum rates for grain storage, as provided in the state constitution. Chief Justice Waite, for the Supreme Court, held that the state could regulate private property when it is “affected with a public interest” (94 U.S. 113 at 126 [1876]). Dicey also would have read about Munn and its progeny in Bryce's American Commonwealth, vol. 1, 267-68 (“they evidently represent a different view of the sacredness of private rights and of the powers of a legislature.… They reveal that current of opinion which now runs strongly in America against what are called monopolies and the powers of incorporated companies”).

60. L.C., 162; F.G., 96.

61. For Dicey, “to frame a written and rigid Constitution is not the work of a day or of a year.” See Ought the Referendum to Be Introduced into England?Contemporary Review 57 (1890): 489Google Scholar. Nor did he approve of federalism as a solution to the Irish demand for home rule. See England's Case, 160-97, and discussion in Tulloch, “A. V. Dicey and the Irish Question.”

62. See Dicey,"Ought the Referendum to Be Introduced into England?” 507 (“Meanwhile the Referendum, which might be introduced with comparative ease, and what is equally important, might be introduced as an experiment, supplies the very kind of safeguard which all true democrats feel to be required”).

63. See L.C, 175-84.

64. See F.G., 98-99. As one of his objections to home rule, he expressed concern whether such a spirit existed in the Irish leaders of his time. See Dicey, England's Case, 255.

65. Sugarman, “The Legal Boundaries of Liberty,” 109-10; Sugarman, “A Hatred of Disorder,” 55-59; and Hibbits, Bernard J., “The Politics of Principle: Albert Venn Dicey and the Rule of Law,” Anglo-American Law Review 23 (1994): 18Google Scholar.

66. L.C., 68.

67. L.C., 338. Dicey argued this point further in his Lectures on the Relation Between Law and Public Opinion in England During the Nineteenth Century, Lecture 11 (2d ed., London: Macmillan, 1948)Google Scholar. Craig argues that this branch of Dicey's rule of law had no teeth once discretionary acts took statutory form. I do not believe that this is an entirely accurate reading of Dicey (see below, text at notes 125-27). Indeed, Craig admits that, once in statutory form, judges could construe statutes restrictively, but he places little signficance on this function. See Craig, P. P., Public Law and Democracy in the U.K. and U.S.A. (Oxford: Clarendon Press, 1990), 3738Google Scholar.

68. L.C., 156; F.G., 93. For criticisms, see Jenkyns, H., “Remarks on Certain Points in Mr. Dicey's ‘Law of the Constitution,’” Law Quarterly Review 3 (1887): 206–7Google Scholar; Bourinot, J. G., “The Federal Constitution of Canada,” Juridical Review 2 (1890): 135–36Google Scholar; Bourinot, J. G., Canadian Studies in Comparative Politics (Montreal: Dawson Brothers, 1890), 2127Google Scholar; Meek, Edward, “Federal Government, and the Distribution of Powers in the Canadian Federal System,” American Law Review 30 (1896): 203–22Google Scholar; A. H. F. Lefroy, The Law of Legislative Power in Canada, lxv-lxvi, and A Century of Constitutional Development Upon the North American Continent,” Canada Law Journal, n.s., 42 (1906): 449–91Google Scholar; and discussion in Risk, “A. H.F. Lefroy,” 320-21.

69. See L.C., 8th ed., 93-94, n. 41. In England's Case, 176, Dicey went so far as to call the cabinet system a “defect” in the Canadian system of federalism.

70. “Death of Lord Watson,” The Times, 15 Sept. 1899, 6, col. a (this obituary is reprinted in part in The Law Times, 23 Sept. 1899, 462); The Late Lord Watson,” American Law Review 34 (1900): 100Google Scholar; and Obituary,” The Law Journal, 16 Sept. 1899, 490Google Scholar.

71. Manson, Edward, Builders of Our Law During the Reign of Queen Victoria, 2d ed. (London: Horace Cox, 1904), 441Google Scholar.

72. “Death of Lord Watson,” The Times, and “Obituary,” The Law Journal.

73. “Watson, William,” Dictionary of National Biography, vol. 22, supp. (London: Smith, Elder, 1909), 1380–81Google Scholar.

74. There was some controversy regarding Watson's election to the Deanship while holding the office of Solicitor-General. See The Deanship of the Faculty of Advocates,” Journal of Jurisprudence 19 (1875): 603–5Google Scholar. On his political career, see Stornmonth-Darling, Moir T., “Lord Watson,” Juridical Review 11 (1899): 275Google Scholar (“During the four years which he spent in the House of Commons he took little part in general politics, either within its walls or on the platform”).

75. The editor of the Journal of Jurisprudence and Scottish Law Magazine welcomed the appointment, writing that Watson “has proved himself a distinguished lawyer and able advocate… we may safely say that no man ever assumed the judicial ermine with greater prospects of success than does the Lord Advocate.” See The New Law Peer,” Journal of Jurisprudence 24 (1880): 216Google Scholar. On the appointment to Lord of Appeal in Ordinary, generally, see Anson, The Law and Custom of the Constitution, and Maitland, F. W., Justice and Police (London: Macmillan, 1885), 5765Google Scholar.

76. Haldane, R. B., “Lord Watson,” Juridical Review 11 (1899): 279Google Scholar.

77. “Death of Lord Watson,” The Times.

78. Macnaghten, , “Lord Watson,” Juridical Review 11 (1899): 271Google Scholar. Following Lord Mac naghten's advice that Lord Watson's opinions were worthy of study, Aberdeen Advocate Williamson, R. M. compiled Gleanings From the Wisdom of Lord Watson (Glasgow: William Hodge, 1902)Google Scholar.

79. “He was prone to interrupt the arguments of counsel, and his interruptions sometimes tended to assume proportions strongly reminiscent of a Scotch sermon of the olden time.” See “The Late Lord Watson,” American Law Review 34 (1900): 101Google Scholar; Macnaghten. “Lord Watson"; and J. C. B., “The Late Lord Watson,” The Times (19 Sept. 1899) 10, col. c.

80. The life of Lord Watson has yet to be written. The obituary in The Times, his entry in the Dictionary of National Biography, and tributes by Haldane, Macnaghten, and Storn-month-Darling in volume 11 of the Juridical Review are the best descriptions of his life available. One published paper appears as “The Repression of Crime” in Transactions of the National Association for the Promotion of Social Science: Aberdeen Meeting, 1877 (London: Longman, Green, 1878), 4455Google Scholar; another was published posthumously as Recent Legal Reform,” Juridical Review 13 (1901): 117Google Scholar.

81. Lord Watson,” Journal of Comparative Legislation (2nd) 4 (1902): 910Google Scholar.

82. See “Office Bearers, Council, and Committees of the Society of Comparative Legislation,” Journal of Comparative Legislation 1 (1896-1897): iii–vGoogle Scholar. The Society's foundation dates from a conference held at the Imperial Institute in London, December 19, 1894. See Brown, L. Neville, “A Century of Comparative Law in England: 1869-1899,” American Journal of Comparative Law 19 (1971): 234, n. 10.CrossRefGoogle Scholar

83. The editors noted that “[i]t is somewhat remarkable that there should not have long ago been founded a society for the scientific study and comparison of the very diverse laws brought before the Appellate Court of the colonies and possessions of the British Empire.” See “Office Bearers, Council, and Committees of the Society of Comparative Legislation,” vi-vii.

84. Macnaghten, “Lord Watson.”

85. (1882), 7A.C. 829 (PC).

86. Russell v. The Queen, 839, 842.

87. City of Fredericton v. The Queen (1880), 3 S.C.R. 505.

88. Ibid., 537, 542.

89. Citizen's Insurance Company v. Parsons (1881), 7 A.C. 96 (P.C.).

90. Ibid., 113.

91. Hodge v. The Queen (1883), 9 A.C. 117 (P.C.).

92. Ibid., 130.

93. As was the practice at the time, no written decision was issued in the reference. A transcript of the oral argument before the Supreme Court of Canada can be found in Canada, Sessional Papers (1885) no.85a, 42-244, and an edited version of the argument before the Privy Council can be found in Wheeler, Gerald John, Confederation Law in Canada (London: Eyre & Spottisgoode, 1896), 144–58Google Scholar. A good discussion of the arguments appears in Alexander Smith, The Commerce Power in Canada and the United States, 49-57.

94. Liquor License Act, S.C. 1883, 45 & 46 Viet., c. 30. See the discussion in Laskin, “The Supreme Court of Canada,” 136; Lefroy, The Law of Legislative Power in Canada, 407; and Smith, The Commerce Power in Canada and the United States, 57.

95. Local Option Act, 53 Vict., c. 56, s. 18. See references to Romney above, note 9. Two contradictory decisions from the Supreme Court of Canada required a final opinion from the Judicial Committee of the Privy Council. One decision was the result of a reference by the federal government to the Supreme Court, and the other arrived on appeal from the Ontario Court of Appeal. Different rulings resulted because different panels of the Court sat on each case. See Re Prohibitory Laws (1895), 24 S.C.R. 170 and Huson v. South Norwich (1895), 24 S.C.R. 145.

96. See the factum and transcript of argument in The Local Prohibition Appeal: An Appeal from the Supreme Court of Canada to her Majesty the Queen in Council (London: William Brown, 1895)Google Scholar [hereinafter L.P.A.] and the edited version reproduced in Wheeler, Confederation Law in Canada, 1045-64. The argument is also summarized in the report of the case, A-G. Ontario v. A-G. Canada, 351-55.

97. Municipal Corporation of City of Toronto v. Virgo, [1896] A.C. 88 (P.C.).

98. R.S.O. 1887, c.184, s.495.

99. Municipal Corporation of City of Toronto v. Virgo, 93.

100. Ibid.Expressio unius, exclusio alterius is the maxim of statutory interpretation that the mention of one thing means the exclusion of the other, that words or phrases take their meaning from the specific context in which they are used. Bryce prefers Lord Bacon's explanation of the maxim: “as exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.” See Bryce, American Commonwealth, 370.

101. A.-G. Ontario v. A-G. Canada, 360-61. In addition, Lord Watson explained that the federal general power could not “trench” upon valid provincial legislation. This was because the general power in section 91 was not included within the list of federal powers “deemed” not to fall within the list of provincial powers in section 92. See the discussion in Romney, “The Nature and Scope.”

102. See Risk, “Blake and Liberty.”

103. L.P.A., 224.

104. L.P.A., 313-14; Wheeler, Confederation Law in Canada, 1054-63.

105. L.P.A., 314.

106. L.P.A., 306.

107. L.P.A., 314.

108. See the discussion in Corwin, Edward S., “Congress's Power to Prohibit Commerce A Crucial Constitutional Issue,” Cornell Law Quarterly 18 (1933): 478Google Scholar.

109. L.P.A., 315-17.

110. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 at 227 (1824) (Johnson, J.).

111. See the discussion in Corwin, Edward S.. The Commerce Power Versus States Rights (Princeton: Princeton University Press, 1936), chap. 2Google Scholar; Corwin, , “Congress's Power to Prohibit Commerce A Crucial Constitutional Issue”; Groves v. Slaughter, 15 Pet. 449 (1891)Google Scholar; Argument of Robert J. Walker Esq. Before the Supreme Court of the United States, on the Mississippi Slave Question at January Term, 1841 Involving the Power of Congress and of the states to Prohibit the Inter-State Slave Trade (Philadelphia: John C. Clark, 1841)Google Scholar.

112. For a time during the Lochner era, the Supreme Court accepted the proposition that Congress did not have the power to prohibit trade. See Hammer v. Dagenhart, 247 U.S. 251 (1918), which ruled unconstitutional a federal law prohibiting the interstate traffic in goods produced by child labor. See Corwin, “Congress's Power to Prohibit Commerce.”

113. L.P.A., 179.

114. L.P.A., 226. Blake, at one point during argument, felt it unnecessary to argue this any further “after what fell from his Lordship the Lord Chancellor this morning” (306).

115. L.P.A., 306. See also the restatement by Blake of Watson's view at 314, where Watson, uncharacteristically, did not interrupt. Watson was in agreement with Blackstone's views about the public interest in certain laws that have the effect of impairing property rights. Blackstone offers, as an example of a law conducive to liberty, a statute of King Charles II that required the dead to be buried in woolens. This was a “law consistent with the staple trade, on which in great measure depends the universal good of the nation.” See Blackstone, William, Commentaries on the Laws of England, ed. Lewis, W. D. (Philadelphia: Dees Welsh), *126Google Scholar. See Schneiderman, “Constitutional Interpretation,” for a discussion of this ideology of productivity.

116. L.P.A., 353. But Watson remained unswayed by the American experience, which he found “are not of much weight here” (353).

117. A.-G. Ontario v. A-G. Canada, 363.

118. See Schneiderman, “Constitutional Interpretation.”

119. Lord Watson refers to Hodge only with respect to the issue of whether the power to license saloons and taverns (s.92[9]) empowers the province to abolish the sources from which revenue is raised. See A-G. Ontario v. A-G. Canada, 364.

120. Bank of Toronto v. Lambe (1887), 12 A.C. 575 (P.C.), 579. See the discussion regarding the prevalence of the rule in Lefroy, The Law of Legislative Power in Canada, 21-40; MacDonald, V. C., “Constitutional Interpretation and Extrinsic Evidence,” Canadian Bar Review 17 (1939): 7880Google Scholar, and The Constitution in a Changing World,” Canadian Bar Review 26 (1948): 31Google Scholar.

121. See, for example, Smith, Herbert A., “The Residue of Power in Canada,” Canadian Bar Review 4 (1926): 433Google Scholar; MacDonald, V. C., “Judicial Interpretation of the Canadian Constitution,University of Toronto Law Journal 1 (1936): 277CrossRefGoogle Scholar, and “Constitutional Interpretation and Extrinsic Evidence”; Kennedy, W. P. M., Some Aspects of the Theories and Workings of Constitutional Law (New York: Macmillan, 1932), 7172.Google Scholar

122. Maxwell on the Interpretation of Statutes, 3d ed. by Kemple, A. B. (London: Sweet & Maxwell, 1896), 399Google Scholar.

123. Wilberforce, Edward, Statute Law: The Principles Which Govern the Construction and Operation of Statutes (London: Stevens and Sons, 1881), 59Google Scholar.

124. Wilberforce, Statute Law, 245.

125. Metropolitan Asylum District v. Hill (1881), 6 A.C. 193 (H.L.), 213.

126. L.C., 330.

127. L.C., 273.

128. Regina v. Johnston (1876), 38 U.C. (Q.B.) 549.

129. For municipalities, see Keep v. Vestry of St. Mary's, Newington; Austin v. Vestry of St. Mary's, Newington, [1894] 2 Q.B. 524. For corporations, see The Calder and Hebble Navigation Co. v. Pilling (1845), 153 E.R. 396 (H.L.); Dick v. Badart (1882-83), 10 Q.B.D. 387.

130. Cairns, “The Judicial Committee and its Critics,” 54.

131. Greenwood, “Lord Watson, Institutional Self-interest,” 258.

132. This context provides, to use Skinner's words, an “ultimate framework”—a “sort of court of appeal”—for assessing the plausibility of the intentions I have ascribed to Watson. See Skinner, Quentin, “Meaning and Understanding in the History of Ideas,” in Meaning and Context: Quentin Skinner and His Critics, ed. Tully, James (Princeton: Princeton University Press, 1988), 64Google Scholar.

133. See Willis, , “Statute Interpretation in a Nutshell,” Canadian Bar Review 16 (1938): 17Google Scholar.

134. Dicey, A. V., “A Review of American Constitutions; The Relations of the Three Departments as Adjusted by a Century by Horace Davis (Baltimore: Johns Hopkins University Series, 1885),” Law Quarterly Review 2 (1886): 8889Google Scholar.

135. See Hamilton, , Madison, , and Jay, , The Federalist Papers, ed. Rossiter, C. (New York: New American Library, 1961), Nos. 46, 51CrossRefGoogle Scholar; Montesquieu, Baron de, The Spirit of the Laws, trans. Nugent, T. (London: G. Bell and Sons, 1994), bks. 9, 11Google Scholar; Proudhon, P.-J., The Principle of Federation, trans. Vernon, R. (Toronto: University of Toronto Press, 1979), 48.Google Scholar

136. See Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990), 147Google Scholar (“the structure of the institutions was such that it would be very difficult, though not impossible, for the people either to actually run the government or to implement policies for which they could mount a sustained, widespread demand”); Beer, Samuel, To Make a Nation: The Rediscovery of American Federalism (Cambridge, Mass.: Harvard University Press, 1993), 487Google Scholar (“the argument foremost in the minds of the framers which still holds greatest promise as a rationale for states is the argument from liberty”); Wilson, Woodrow, Congressional Government: A Study in American Politics (Boston: Houghton, Mifflin, 1885), 1314Google Scholar (federalism “was proposed to guard not against revolution, but against unrestrained exercise of questionable powers”).

137. L.C., 162; KG., 96.

138. Tocqueville referred to the American states as “little societies” in Tocqueville, Alexis de, Democracy in America, trans. Lawrence, G. (New York: Harper and Row, 1988), 161Google Scholar.

139. Bryce, American Commonwealth, 1:343.

140. Ibid, 345: “A nation so divided is like a ship built with water-tight compartments. When a leak is sprung in one compartment, the cargo stowed there may be damaged, but the other compartments remain dry and keep the ship afloat.” The watertight compartment metaphor was invoked by Lord Atkin (without reference to Bryce) forty years later in the Labor Conventions Case, [1937] A.C. 326, 354.

141. This amounts to an argument that federal authority is better divested of particular powers, which are preferably in the hands of subnational governments, so as to prevent the risk of abuse (i.e., authoritarianism). On this question, see Chemerinsky, Erwin, “The Values of Federalism,” Florida Law Review 47 (1995): 526–27Google Scholar, and Andrej Rapaczynski, “From Sovereignty to Process: The Jurisprudence of Federalism After Garcia,” The Supreme Court Review (1985): 388-89.

142. Vipond, Robert C., “Comment: Liberalism, Federalism and the Origins of Confederation,” Journal of Canadian Studies 26 (1991): 106CrossRefGoogle Scholar, and Alternative Pasts: Legal Liberalism and the Demise of the Disallowance Power,” University of New Brunswick Law Journal 39 (1990): 144–45Google Scholar.

143. See Vipond, Liberty and Community, 135, and Risk and Vipond, “Rights Talk in Canada,” 19-20. See also the instructive speech of Edward Blake in Canada, House of Commons, Debates (14 April 1882) 915 (brought to my attention by Risk in his “Blake and Liberty,” 205).

144. For business combinations, see P.A.T.A. v. A.-G. Can., [1931] A.C. 310 (P.C.). For tobacco advertising, see RJR MacDonald v. A.-G. Canada (1995), 127 D.L.R. (4th) 1 (S.C.C.).

145. Laskin's Canadian Constitutional Law, rev. 4th ed. Abel, Albert S. (Toronto: Carswell, 1975), 824Google Scholar.

146. See Re Validity of s.5(a) of Dairy Industry Act, [1949] S.C.R. 1; Can. Federation of Agriculture v. A.-G. Quebec, [1951] A.C. 179. For insurance regulation, see Armstrong, Christopher, “Federalism and Government Regulation: The Case of the Canadian Insurance Industry 1927-34,” Canadian Public Administration 19 (1976): 91CrossRefGoogle ScholarPubMed.

147. As Justice Rand warned, prohibition of trade for economic reasons is not part of the federal criminal law power, rather the object of the law must be tied to a “public purpose” related to the criminal law, such as “public peace, order, security, health and morality.” See Re Validity of s.5(a) of Dairy Industry Act, 50-53 and the more contemporary statement of the test in R v. Hydro-Québec (1997), 151 DLR (4th) 32 (SCC).

148. This is Greenwood's argument in “Lord Watson, Institutional Self-Interest.”

149. Watson, “Recent Legal Reform,” 16.

150. Ibid.; Dicey, Law and Public Opinion.