32 PROCEEDINGS OF THE CANADIAN INSTITUTE. 



So much for the Legislative power. The judicial power is totally 

 different from what obtains in England. In the main — except as to 

 certain powers of the Supreme Court at Washington it is analogous, 

 to the judicial power in the United States. A judge in England 

 cannot ignore a statute so long as it is on the books. It binds him — 

 he may evade it or misinterpret it, but before the Constitution he has 

 no power to query it. Such is not the case here or in the United 

 States. 



With us, as with them, the Constitution is the basis of legislative 

 authority ; it lies at the foundation of all law, and is a rule and 

 commission by which both legislators and judges are to proceed. Tf 

 the legislatures transgress their constitutional bounds the courts must 

 correct them. But the judiciary has no control over legislature, and 

 no power whatever to question its purpose or animus so long as such 

 legislation is kept within its defined limits. The judiciary is, there- 

 fore, not a subordinate but a co-ordinate branch of the government 

 of this country. It may keep the executive even within its authority 

 by refusing to give the sanction of law to whatever it may do beyond 

 it, and by holding the agents and instruments of its unlawful action 

 to strict accountability. 



A judge in a Division Court, as well as a judge in the Supreme 

 Court, may be bound to ignore a statute, if not passed by the proper 

 Legislature or Parliament. Every act of any of our legislatures 

 repugnant to the Constitution is absolutely void, and cannot become 

 law of the land. There is a presumption in favour of its validity, 

 however, until the contrary is established. 



The executive power in Canada is peculiar and merits a remark. 

 Whilst the legislative powers of the Provinces and the Dominion are 

 sharply defined, and whilst the judicial or administrative powers are 

 little capable of creating a difference of opinion, it is impossible to 

 say that the Act of 1867 is " not conflicting," or at least embarrassing 

 in respect of the executive. In the British Constitution the sovereign 

 is the apex of authority ; the King or Queen theoretically summons 

 the Parliament, which makes or is responsible for all the laws in the 

 realm — appoints the jiidges who administer these laws, and the execu- 

 tive authority is vested in- her. The same Queen in Canada is the 

 same power, and summons the Parliament at Ottawa, appoints the 

 judges as a general rule, with one trifling exception, and the executive 

 government and authority of and over Canada is vested in her. This, 



