페이지 이미지


vice and protection, while relieving her property from his obligations and control, and may expose her to the contrivances of designing persons, who may persuade her to make bargains and dispositions of her property highly prejudicial to the joint interests of herself and her husband. At present it seems to me that the object of the Act will be sufficiently secured if the law should prove to be that she shall not have the power of disposition without the consent and intervention of her husband, so that he may have an interest recognized in law sufficient to enable him to prevent her making what may be improvident bargains in respect of it, and securing to her the same beneficial interest, as to the corpus, at least, of her personalty, as she has in her realty, which, notwithstanding that the word 'real' is coupled with personal' property in the Act, cannot be disposed of effectually otherwise than jointly with her husband. Such a construction I am inclined to think would be more conducive to the preservation of her true interests and the peace of the marriage state than one which would give to her absolute power of disposition without the consent, and it may be against the will and advice, of her husband."

About seven years after this judgment was delivered, an old London solicitor startled me by asking what effect the changed legal status of a married woman had had among us. He explained that he did not mean the vulgar perjury to save part of a shipwrecked fortune, and added: “ Several of us older men who have charge of the affairs of wealthy families have observed this result with regret. When formerly a wealthy woman married she found that the husband received and controlled the expenditure of her income, as head of the family. Now it is different, and with the difference we note a growing readiness to gratify personal passion. It is easy to do so now, and if people cannot live in England they can break all ties, and with plenty of money can live and enjoy it in some other part of the world.”

My old friend has passed away long ago, and I am still unable to answer his question, while the rights of wives to deal with their own estates have increased.

To return to Mr. Justice Gwynne's decisions. On this subject of husband and wife and the changing law consequent on the statute of 1859, he delivered the judgment of the Court in the case of McGuire v. McGuire, 23 C. P. 123, which decided against a married woman's right to recover her own goods from her husband, and which is worth reading over for the historical digest of the enactments and decisions which it contains. During this period of life he developed what may be called a judicial style of writing. Being a man of singularly upright character, who never swerved from the strictest truth and honour, he not only endeavoured to find out and apply the law to each case, but to explain the nature of the case, the pleadings, the evidence; to analyze these, and then the law applicable to each issue, as presented either on the pleadings or the evidence. The result to the litigants must have been satisfactory, in this at least, that they found that the Judge had given immense attention to their case, and to the counsel engaged it must have been equally so, as without any ambiguity he gave his judgment and the reasons for it; but to the reader it has a tedious effect. At this stage of his career an incident occurred which illustrates his character. He had been engaged at a town in eastern Ontario for some days on a long and intricate case, and at last, very tired, had sat down to a much needed dinner. A visitor intruded, who turned out to be the successful litigant, a man (from the States) who announced that he had called to thank the Judge for what he had done for him, and to say how ready he was if he would name a sum to do what was right. The incensed and astounded Judge was only able to thunder, “Leave the room this instant.” But beyond and far greater than the insult to his feelings as an Irish gentleman and a Canadian Judge, was the thought that, possibly, he had been imposed upon by manufactured evidence.

With his life at Ottawa began a new style of judicial work, of broader scope—appeals in serious matters from many Provinces and varying systems of jurisprudence; cases which were full of interest from historical, national causes, or varying social habits. Mr. Justice Gwynne seldom gave a con

curring judgment. Even if he agreed in the result with the rest of the Court, he frequently differed in the reasons by which he arrived at his conclusions.

To the questions which came before the Court on the interpretation of the Confederation Act he brought a mind informed, I understand, by consultation with the framers of the Act. Certainly he held strong convictions, which he expressed in plain language. He was the champion of the ideal of a strong central Government, and lived to find this ideal thrown down by an unsympathetic Privy Council.

In the case of Liquidators of the Maritime Bank v. Receiver-General of New Brunswick, [1892] A. C. 437, the judgment contains a very strong statement which must have grated on Mr. Justice Gwynne's ears when Mr. Edward Blake used portions of it in his argument in the Provincial Pardoning Power Case, 23 S. C. R. 458. Mr. Blake, quoting this judgment, said (p. 463):

“ The judgment in the case referred to at p. 441 of the report [1892] A. C., begins by pointing out that the appellants did not impeach the authority of the cases of The Queen y. The Bank of Nova Scotia and Exchange Bank of Canada v. The Queen; and they also conceded that until the passing of the British North America Act, 1867, there was precisely the same relation between the Crown and the Dominion. But they maintain that the effect of the statute has been to sever all connexion between the Crown and the Provinces; to make the Government of the Dominion the only Government of Her Majesty in North America; and to reduce the Provinces to the rank of independent municipal institutions.' In respect to this contention, their Lordships used this language, ‘For these propositions, which contain the sum and substance of the argument addressed to them in support of this appeal, their Lordships have been unable to find either principle or authority.' Then there is the authoritative statement that the British North America Act does not disturb the relation then existing between the Sovereign and the Provinces. The object of the Act was neither to weld the Provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented and trusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy. That object was accomplished by distributing between the Dominion and the Provinces all powers, executive and legislative, and all public property and revenues, which had previously belonged to the Provinces; so that the Dominion Government should be vested with such powers, property, and revenues, as were necessary for the due performance of its constitutional functions, and that the remainder should be retained by the Provinces for the purpose of provincial government. But in so far as regards those matters, which by s. 92 are specially reserved for provincial legislation, the legislature of each Province continues to be free from the control of the Dominion and as supreme as it was before the passing of the Act.??

But the litigation over the relative rights of the Dominion and the Province had begun long before Mr. Justice Gwynne became a member of the Supreme Court Bench, and very soon after he took his seat, and before the Parsons cases came before that tribunal, he had occasion, and he seized it, to give a full statement of his views. They are instructive, and are found in City of Fredericton v. The Queen, 3 S. C. R. 505. Beginning at p. 560, he says, among other things :

“Historically we know that the terms of a feasible scheme of union of all the B. N. A. Provinces, constitutes a subject which for many years engaged the attention of public men in those Provinces—that the matter became the subject of debate in the legislatures of the several Provinces--that eventually the views of public men of all political parties were moulded into the shape of resolutions, which, having been subjected to the most careful consideration and criticism in the Provincial Legislatures, and to the consideration also of the Imperial authorities, in consultation with delegates sent for the purpose to England, by the respective Provinces, were, after having been revised and amended, reduced into the form of a bill, which the Imperial Parliament, at the special request of the Provinces, passed into an Act.

"The object of this Act was, by the exercise of the sovereign Imperial power, called into action by the request of the then existing Provinces of Canada, Nova Scotia, and New Brunswick, to revoke the constitutions under which those Provinces then existed, and, as the preamble of the Act recites, to unite them federally into one Dominion, under the Crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdomto sow, in fact, the seed of the parent tree, which, growing up under the protecting shadow of the British Crown until it should attain perfect maturity, would in the progress of time become a nation, identical in its features and characteristics with that from which it had sprung, and to which, in the meantime, should be given the new name of ‘Dominion,' significant of the design conceived, and of the anticipated fortunes of this new creation.

“ The Act then proceeds to shew that the mode devised for founding this new 'Dominion, and for giving to it a constitution similar in principle to that of the United Kingdom, was to constitute it as a quasi Imperial sovereign power, invested with all the attributes of independence, as an appanage of the British Crown, whose executive and legislative authority should be similar to that of the United Kingdom, that is to say, as absolute, sovereign, and plenary as, consistently with its being a dependency of the British Crown, it could be, in all matters whatsoever, save only in respect of matters of a purely municipal, local, or private character-matters relating (to use the language of a statesman of the time) to the family life' (so to speak) of certain subordinate divisions, termed Provinces, carved out of the Dominion, and to which Provinces legislative jurisdiction limited to such matters was to be given.

“The inhabitants of those several Provinces being, as such, members of this quasi Imperial power termed the Dominion of Canada, might, in some matters, have interests, qua inhabitants of the particular Province in which they should live, distinct from or conflicting with the general interests which they would have as constituent members of the Dominion.

« 이전계속 »