taining to the subject as administered in the English and Scottish courts. The problems dealt with by the author are chiefly those which arise when there is some foreign element to be taken into account in ascertaining the powers of the court. Speaking of Domicile he says at p. 2, "it is of secondary importance in an ordinary personal action. In England we find the original rule to be that whenever you could serve a writ, then there was jurisdiction; in Scotland, more logically, the possibility of serving a summons was (and is) dependent on whether or not there was jurisdiction." That, of course, is technically correct, but it is not a lucid statement of the English rule which, logically enough, proceeds upon the theory that the presence of the defendant within the realm ought to make him amenable to the law of the realm as administered by the courts. That is to say, his presence within the jurisdiction and not the service upon him of the writ is the fact to which jurisdiction attaches. And then with reference to the Scottish rule as stated by the author is it good logic to insist upon the question of the amenability of the defendant to the jurisdiction being disposed of before he is brought into court? It would seem to be the logical way to summon the defendant and let the court say whether it has the right or authority, ie., Jurisdiction, to proceed with the trial of the claim against him. The author fully discusses the question of "Jurisdiction arising from presence of the Defendant in England at the time of service of the Writ," at p. 15 seq., where his statement of the reason of the rule is more in consonance with our own view than what he has to say about it in the earlier passage referred to. The book as a whole is not without its value in Canada.

C. M.

Constitutional Law. A Brief Text with Leading and Illustrative Cases. By Charles W. Gerstenberg, Professor of Constitutional Law, Brooklyn Law School of St. Lawrence University. New York: Prentice-Hall, Inc. 1926. Price $5.75.

Professor Gerstenberg tells us in his preface that the object in view in compiling this book was to obtain material for teaching a short course in American Constitutional Law. He desires that "the text material should be regarded not at all as a commentary, but as a brief outline setting forth the minimum information to be retained by the well-informed graduate." We think the book answers the purpose for which it was prepared in a very complete way. In the opening chapter the student will find a short but illuminating survey of the various steps in the political history of the American colonies leading up to the adoption of the Constitution by the United States, and an exposition of its basic principles and their development by legislative amendment and by judicial interpretation and custom. Part 1. consists of a brief outline of the various branches of the law of the Constitution, and in Part II. the leading cases by which the Constitution has been interpreted from the beginning down to our own time are collected under appropriate heads.

The book will be of use to teachers of law in Canada as well as in the United States.

C. M.

THE CANADIAN BAR

REVIEW

VOL. IV.

TORONTO, SEPTEMBER, 1926.

No. 7

DELEGATION OF POWERS OF PARLIAMENT.

Every Canadian lawyer understands the power in a British country of a legislative body in matters within its jurisdiction to delegate its authority to a body of its own creation (1).

This is part of our inheritance from England, and is wholly repugnant to the conceptions of the other great branch of the English speaking people with their rigid and formal written Constitution (2).

It may be of interest to give an account of an early exercise of this power in England-the earliest that I have been able to trace: it was near the end of the 14th century. The young King, Richard II., after his most creditable and, indeed, marvellous success in dealing with Wat Tyler's followers, seems to have lost his head altogether and to have launched out into wild extravagances in temper as well as in finance. In 1386, the country through Parliament, led by his uncle, the Duke of Gloucester, called him to time and compelled him to put the administration of his affairs for at year in the hands of Commissioners named by Parliament. This was effected by Statute and a Royal Commission issued to eleven persons therein named (3).

While this has been considered by some a delegation of legislative powers('), a careful perusal of the documents themselves will show that such is not the case; what was delegated was administrative and executive, not legislative power.

The King and his favorites endeavored to get rid of the Commission by Sir Robert Tresilian, Chief Justice of the King's Bench, procuring an extrajudicial opinion from some of the Judges-a perfectly regular proceeding (5)—that the Commission was a nullity and the Commissioners were traitors.

28--C.B.R.-VOL. IV.

But one of the Judges (") informed the Commissioners who immediately raised an army, and compelled the King to call a Parliament

This Parliament, the "Merciless Parliament " or " Wonder Working Parliament," meeting in 1388, began by hanging Tresilian and went on to exile to Ireland the other four offending Judges. The Commission, however, came to an end by efflux of time.

But a real delegation of legislative power was shortly to come: the power of the "v lordis ", as Gloucester and the other leaders of his faction were often called, waned and disappeared. In 1397, the Parliament solemnly enacted that the Judges were right in 1387, when they considered the Statute and Commission of 1386 treasonous; but that Parliament, the "Grete Parlement" or "Great Parliament," itself went much further.

The old Chronicler informs us: "fferthirmore the Kyng made alle the men of this parlement coumpromitte in to xij diuers personez continuyng the said parlement that where and whanne it likid thayme thay myghte make statutis aftir thair owen ordennance; and made alle the lordis swere vpon saint Edwardis shryne, forto kepe with a thair myghte the statutis of the same parlement; and at request of the parlement, alle the Bisshoppis acursid at Poulis cros alle who dede ayens the said statutis and ordenaunces." Then we are told: "And whanne this was ydo, the Kyng wente in to the west cuntre" (7).

The Statute justifies the description thus given of it (8). It begins by reciting that diverse petitions by special persons and others could not be properly attended to (ne purroient bonement estre terminez) during the short time Parliament sat; then it ordained that certain persons (9) named should examine, answer and fully dispose of the said petitions and the matters therein contained as to them should seem best. Of course in those days all legislation was, at least in theory, on petition to the King.

It is a far cry from 1397 to 1877 and from the “xij lordis and vj communes" of the second King Richard's time to the License Commissioners of Toronto of Queen Victoria's-but the principle is the same. Just one more instance of the splendid continuity of our institutions.

1

Toronto.

WILLIAM RENWICK RIDDELL.

Hodge v. The Queen (1883). 9 A.C. 117: Township of Sandwich East V. Union National Gas Co. (1924), 56 O.L.R. 399 (1925), 57 O.L.R. 656.

2

7th ed.,

Cooley: A Treatise on the Constitutional Limitations Boston, 1903, at p. 163. "One of the settled maxims in constitutional law is that the power conferred upon the legislature to make laws can not be delegated by that department to any other body or authority ." See Black: Handbook of American Constitutional Law, 3rd ed., St. Paul, 1910, p. 374: my Constitution of Canada, Dodge Lectures, Yale University, 1917, p. 140,

etc.

The Statute is (1386) IC Ric. II., c. 1, not printed in its place in the Statutes at Large; but in the Appendix in vol. 10, pp. 46-48 it is given in Law French and is not translated: the Commission is in Rotuli Parliam., 10 Ric. II., pt. I, M7, it is translated in 1 Cobbett's Parliamentary History 191-193, and in part in 1 State Trials, 94, note (c).

* For example in the notes to An English Chronicle written before the year, 1471 . . . Camden Society, 1856, the very learned editor, the Rev. John Silvester Davies, M.A., (whose annotations are very helpful), says p. 147, 'In the parliament at Westminster, Oct. 1st, 1386, the Commons impeached Michael de la Pole the Chancellor, and placed the legislative power in the hands of fourteen commissioners selected by themselves with the King's sanction for one year (Knyghton, 2684, 2685: Rot. Parl. iii, 216-220: Stat. Realm, ii, 40-46." The number of the Commissioners named in the documents is only eleven-the Archbishops of (1) Canterbury and (2) York, the Dukes of (3) Gloucester and (4) York, the Bishops of (5) Westminster and (6) Exeter, the Abbot of (7) Waltham, (8) the Earl of Arundel, (9) Sir John Cobham, 10) Sir Richard Lescrop and (11) Sir John Devereux. "A third Council belonging to the King are his Judges of the Courts of Law, for law matters Blackstone: Commentary on the Laws of England, Bk. 1, p. 229. The practice of consulting the Judges on matters of law has long been obsolete: but it was frequently resorted to in ancient times. The best known instance is when Charles I. at the instance of Chief Justice Finch obtained an extrajudicial opinion on the legality of Writs of Ship Money.

The Council of Richard II. was held first at Shrewsbury-the Judges were summoned to Nottingham, August 25, 1387-they found not only the Questions but also the Answers all prepared by Tresilian; and on being threatened with death if they refused, they signed and sealed.

The Questions and Answers will be found in Lord Campbell's Lives of the Chief Justices, vol. 1, pp. 98-100: 1 Parl. Hist. 194-196: Statute (1397) 21 Ric. II., c. 12: Ruffhead's Statutes at Large, vol. 1, pp. 419-421.

* Sir Roger Fulthorpe, Justice of the Court of Common Bench.

* An Old English Chronicle, ut suprâ, p. 12. compromit, "to commit to, leave to the decision of .. to delegate to some other person or persons." New English Dictionary, sub voc. See the use of the word in the examples given The Statute justifying the Judges is (1397) 21 Ric. II., c. 12.

This Statute is (1397) 21 Ric. II., c. 16: it is in Law French and is not translated. It is intituled "Authority given by Parliament to certain Commissioners to examine and answer Petitions addressed to the King."

'The Dukes of Lancaster. York, Albemarle. Surrey and Exeter, the Marquess of Dorset, the Earls de la Marche, of Salisbury, Northumberland, Gloucester, Worcester and Wilts or any six of them-watching for the Commons. John Buffy. Henry Green, John Russell, Richard Chelmeswyk, Robert Teye and John Golofre, Knights, or any three of them: a miniature Lords and Commons.

All the Acts of the Session of 1397 were repealed by (1399) 1 Hen. IV., c. 3.

THE RESIDUE OF POWER IN CANADA.

Between the interpretation of statutes and the interpretation of other legal documents the practice of our courts in the nineteenth century has drawn a distinction which cannot be defended either in strict logic or by ordinary common sense. In both cases the sound rule prevails that, where the written words are clear and unambiguous, extrinsic evidence to vary their meaning cannot be admitted. If, for example, a testator expresses himself in unambiguous words, these words must be given their full effect, even though evidence may be available to show that the testator did not mean exactly what he said. The same rule is applicable to contracts, statutes, and to all forms of written instruments.

But the difficulties of interpretation begin when words are not unambiguous, and it is at this point that our practice has drawn an arbitrary distinction between statutes and all other legal documents. In interpreting an obscure clause in a contract the court will take into consideration the whole of the previous correspondence between the parties and any words or conduct which may throw light upon their intentions. So again, if the words of a will are capable of two or more meanings, evidence is freely admitted to show what was passing in the testator's mind when he wrote those words. In all these cases our law is in accordance with common sense and with the ordinary practice of historical and literary criticism in other branches of learning.

If the application of this rule were extended to the interpretation of statutes it would follow that obscure clauses could be elucidated by studying the debates in Parliament and the considered public utterances of statesmen responsible for the introduction of the new law. Clearly such a practice would be in accordance with the wellknown rules of construction laid down by the Court of Exchequer in Heydon's Case,1 where it was ruled that the points for consideration are: (a) What was the common law before the making of the Act (b) What was the mischief and defect against which the common law did not provide (c) What remedy the Parliament hath resolved and appointed to cure the disease of the Commonwealth (d) The true reason of the remedy. It is obvious that for three

12 Co. Rep. 7b., p. 19.