to be brought for the recovery thereof without any inquisition being first necessary. The lieutenant-governor may make grants of escheated or forfeited lands, or may release forfeited property, or waive the forfeiture. He may also make an assignment of personality to which the Crown has become entitled.

3

The question of the validity of this statute was brought before the courts in 1878, when the attorney-general of Ontario filed an information in the court of chancery for the purpose of obtaining possession of land in the city of Toronto, which was the property of one Andrew Mercer, who had died intestate and without leaving any heirs or next of kin, on the ground that it had escheated to the Crown for the benefit of the province. Andrew Mercer, a natural son of the deceased, demurred to this information for want of equity, and the court of chancery held that the Escheat Act of Ontario was not ultra vires, but that the escheated property accrued to the benefit of Ontario. On appeal to the court of appeal for Ontario, that court held that the provincial governments are entitled, under the B. N. A. Act, to recover and appropriate escheats, and affirmed the order over-ruling the said demurrer, and dismissed the appeal with costs. Against this judgment the defendant, Andrew Mercer, appealed to the supreme court, and the parties agreed that the appeal should be limited to the broad question whether the government of Canada or of a province is entitled to estates escheated to the Crown. The dominion government, concurring in the view of the appellant's counsel, that the hereditary revenues of the Crown belong

1 R. S. . [1877,] c. 94.

to the dominion, intervened in order to have the question determined.

The supreme court held that the province of Ontario does not represent her Majesty in matters of escheat in that province, and therefore the attorney general could not appropriate the property escheated to the Crown in this case for the purposes of the province, and that the Escheat Act of Ontario was ultra vires.1 That any revenue derived from escheats is by section 102 of the B. N. A. Act placed under the control of the parliament of Canada as part of the consolidated revenue fund of Canada, and no other part of the act exempts it from that disposition.2

The case was brought finally before the privy council,3 who came to the conclusion that the escheat in question belongs to the province of Ontario. Their lordships base their decision mainly on their interpretation of section 109, which is the only clause in the B. N. A. Act by which any sources of revenue appear to be distinctly reserved to the provinces, viz.:

"All lands, mines, minerals, and royalties, belonging to the several provinces of Canada, Nova Scotia, and New Brunswick, at the union, and all sums then due or payable for such lands, mines, minerals, or royalties, shall belong to the several provinces of Ontario, Quebec, Nova Scotia, and New Brunswick, in which the same are situate or arise, subject to any trusts existing in res

15 Can. Sup. Court R. 538. The chief justice and another judge of the court dissented from the opinion of the majority. Per Fournier, Taschereau, and Gwynne, JJ.

The attorney-general of Ontario v. Mercer; July 18, 1883.

pect thereof, and to any interest other than that of the province in the same."

The real question, in their lordships' opinion, is as to the effect of the words "lands, mines, minerals, and royalties" taken together. They see no reason why the word "royalties" in the context should not have its primary and appropriate sense as to all the subjects with which it is here associated,-lands, as well as mines and minerals. Even as to mines and minerals, it here necessarily signifies rights belonging to the crown, jura coronæ. The general subject of the section is of a high political nature; it is the attribution of royal territorial rights, for the purposes of revenue and government, to the provinces in which they are situate or arise. In its primary and natural sense, "royalties" is merely the English translation or equivalent of regalitates, jura regalia, jura regia. It stands on the same footing as the right to escheats, to the land between high and low watermark, to treasure trove, and other analogous rights. Their lordships find nothing in the subject or the context, or in any other part of the act, to justify a restriction of its sense to the exclusion of royalties, such as escheats, in respect of lands. The larger interpretation (which they regard as in itself the more proper and natural) also seems to be that most consistent with the nature and general objects of this particular enactment, which certainly includes all other ordinary territorial revenues. of the crown arising within the respective provinces.1

An important question came before the supreme court of Canada in 1887, on an appeal of the Ontario court of

1 See 6 Legal News, 234, 244. Also Can. Sess. P., 1884, No. 117, for papers respecting escheated lands.

appeal, affirming a judgment of the chancery division, which restrained the St. Catharines Milling & Lumber Co. from cutting timber on lands south of Wabigoon Lake in Algoma, claimed to be public lands of the province.1 Though the question at issue is not yet definitely decided, yet it is expedient to call attention to the main points involved, inasmuch as all the courts in Canada to which it has been referred have come to the same conclusion. The lands in question formed a portion of the territory declared, under the Boundary Award,' to be within the territorial limits of Ontario. In 1873 they were surrendered by the Indians to the government of Canada by the North-West Angle Treaty No. 3. In the answer of the defendants it was pleaded that the lands and timber thereon were, with other lands and timber in the district, until quite recently claimed by the Indians who inhabited that part of the dominion of Canada. That the claims of such Indians have always been acknowledged by the various governments of Canada, and that such claims are, as respects the lands in question, paramount to the claim of the Crown as represented by the government of Ontario. That the government of Canada have acquired the Indian title to these lands in consideration of a large expenditure of money for the benefit of these Indians, and have for that

1

Sup. Court R., vol. 13, pp. 577-677. The St. Catharine's Milling & Lumber Co. (appellants), and the Queen, on the information of the attorney - general for the province of Ontario (respondent), on appeal from the court of appeal for Ontario. The matter has been appealed to the judicial committee of the privy council.

2 See infra, pp. 156-158, for a brief account of this award.

reason and by virtue of the inherent right of the Crown as represented by the government of Canada, alone the right to grant licenses to cut timber on the tract in dispute. The majority of the court decided that the boundary of the territory in the north-west angle being established, and the lands in question being found within the province of Ontario, they necessarily form part of the public domain of that section, and are public lands belonging to the same by virtue of sub-sec. 5 of sec. 92, and sec. 109 of the B. N. A. Act, as to lands, mines, minerals and royalties, and of sec. 117, by which the provinces are to retain all their property not otherwise disposed of by that act, subject to the right of the dominion to assume any lands or public property required for fortifications or for the defence of the country. Only those lands specifically set apart and reserved for the use of the Indians are "lands reserved for Indians " within the meaning of sec. 91, item 24, of the B.N.A. Act. In the course of their opinions, the majority of the judges dwelt on certain points interesting to the historical as well as legal student. They laid it down that "on the discovery of the American continent, the principle was asserted or acknowledged by all European nations that discovery followed by active possession gave title to the soil to the government

1 Ritchie C.J., Taschereau and Henry JJ.; Strong and Gwynne JJ., dissenting. The most elaborate opinion in the whole question is by Boyd C., in the Chancery division of the high court of justice for Ontario (10 O.R., 196). The opinions of Strong and Gwynne JJ., on the other side, merit a careful study.

2 See app. A. to this work for full text of these sections.