phrase which might if literally interpreted include all forms of certifiable insanity.

Even where the tests as embodied in the Macnaghten rules have not been literally varied, it has become increasingly the practice for judges to direct the juries' attention to the prisoners' insanity, where that has been established by medical evidence, rather than to the formal tests. Indeed, whatever views are held in theory about "partial insanity" and the possible responsibility of insane persons for their acts, they are apt to crumble before a concrete case. It is recorded that the last woman executed for witchcraft in these islands was a demented old hag in the North of Scotland, who warmed her hands gleefully at the fire lit to consume her, and "chuckled to see the bonny blaze." Modern nerves are weaker. It is submitted that no jury would now deliberately send a man with definite symptoms of insanity to the gallows, and no Home Secretary would allow an insane man to go to execution. The English Law has come very close in practice to the simple terms of the French Code: "There can be no crime or offence if the accused was in a state of madness at the time." What the Court really wants to know is whether the prisoner did the act with which he is charged under the influence of insanity or not. It is difficult to see why the question should not be put to the jury directly in this direct form as a plain question of fact, all technical and irrelevant psychological tests being eliminated. By using the term

insanity" the great army of neurotics, hysterics, psychosthenics, neurasthenics, and others of the mentally abnormal who are yet capable of self-control would be excluded, as it is certainly desirable that they should be. But medical practitioners who have now to estimate, according to their skill, a patient's responsibility for his actions for the purpose of certification under the Lunacy Acts, would find their task of advising a Criminal Court immensely simplified if the same standard could be accepted by the criminal as by the civil law. Removal of the existing patent incongruities would enhance the dignity of English jurisprudence and in no way weaken the deterrent effect of the law on such criminals who are capable of being deterred. The verdict "Guilty, but insane" carries terrible and permanent consequences, but such mercy as it brings should be available for every criminal for whom its words imply that it is intended.

THE CANADIAN CONSTITUTION AND COMPANY LEGISLATION.

[Contributed by PROFESSOR BERRIEDALE KEITH, D.C.L.]

1

The Complexity of the Issue. --Discussion is still as active as ever in Canada on the problem of company legislation as affected by the constitutional powers of the Dominions and the Provinces. The framers of the British North America Act could not foresee the development of the creation of companies nor the manifold ramifications of their business, and thus they left wholly ambiguous the powers of the federation and the local governments in this regard. The Judicial Committee has by a series of recent decisions elucidated many of these points, but not, in the opinion of Canadian lawyers, without creating other and not less serious difficulties, which nothing except an amendment of the British North America Act can remove. But to such a consummation there is opposed the grave difficulty of securing agreement between the Dominion and the Provinces which is a constitutional necessity for any alteration of the federal pact. The Dominion and the Provincial Governments unfortunately are inclined to insist on their own rights rather than to unite in the evolution of a system more adapted to modern conditions, and apart from such feelings there are perfectly real difficulties in the way of any effective solution.

Dominion Powers of Incorporation. - The Dominion's authority to incorporate companies under s. 91 of the British North America Act is of two distinct kinds. In the first place it can incorporate companies to deal with matters which fall within its exclusive specific powers, such as companies for navigation and shipping, sea coast and inland fisheries, or such works as are by s. 92 (10) excluded from the sphere of the authority of the Provinces. The paramount character of this legislation is shown by the decision in La Compagnie hydraulique v. Continental Heat and Light Company, in which it was

decided that a Dominion Act incorporating a company with general powers as to heat and light prevailed over a Provincial Act, in itself perfectly valid, which purported to confer on a provincial company exclusive rights in a certain part of the Province. This exercise of Dominion power has been called in question by the Provinces, but it is plainly in accordance with the intention of the constitution. The second power of the Dominion is much more susceptible to objection. As the residual power in the Dominion rests with the federal Parliament, it possesses the general right of incorporating companies other than companies with provincial objects, the sole power to incorporate which is expressly given to the Provinces by s. 92 (11). The Dominion has interpreted this state of affairs as signifying that every company which desires to carry on business in more than one Province must receive incorporation from the Dominion, an interpretation now rejected by the Judicial Committee, but one at least excusable. But it has also adopted the much more indefensible position of incorporating companies which really mean to carry on business in one Province only, and which apply for Dominion incorporation merely because they wish to avoid incorporation in the Province in the hope thus of escaping the burden of provincial restorations.1

Provincial Powers over Dominion Companies. - The Provinces have naturally enough retaliated by constant attempts to bring Dominion companies under their legislative control. In the case of companies formed under exclusive specific Dominion powers, e.g. as to banking or interprovincial or international railways, the powers of the Provinces are definitely limited; they may not even in the exercise of their legitimate powers legislate so as in effect to deal with the heads allotted to the Dominion; how delicate the distinction may be between what is and what is not possible is shown by the fact that the Canadian Pacific Railway Company has been held liable to clean a ditch under a provincial Act, but not to fence its line. The real difficulty arises in regard to companies incorporated under the general residual authority of the Dominion. On one view, indeed, there would be hardly any such class of companies, since all commercial companies ought to be held to be formed under s. 91 (2), regulation of trade and commerce, and therefore to fall into the class of companies incorporated under specific powers. But this interpretation of the general terms of s. 91 (2) is inadmissible, for the

1 See In re Companies, 48 Can. S.C.R. 331, at p. 425, per Duff J.
• See Keith, Imperial Unity, p. 453.

Judicial Committee holds that the exclusive right of the Provinces under s. 92 (13) over civil rights in general is not to be whittled away by giving this wide sense to s. 91 (2). Hence it follows that the provisions of the Companies Act of Canada which permit a Dominion company to hold real property cannot override a general provincial law restricting or prohibiting the holding of such property by corporations generally. The same principle applies to any general provincial legislation; thus a Dominion company may be required to register and give information, and to pay fees not exceeding those payable by provincial companies'; it can be subjected to a system of licensing in order to secure the observation of some restriction as to contracts to be observed by the public generally in the Province, or the doing by the public of some act of a purely local character only under licence. Further, if a Province prohibits the carrying on of some trade, a Dominion company cannot evade that prohibition because of its Dominion status. On the other hand there are definite limits to provincial power. No Province can destroy a corporation which it did not create, and provincial acts claiming this power are clearly pro tanto of no effect. Nor, more generally, will a provincial Act be upheld which seeks to destroy the status and capacity of a Dominion company as opposed to regulating corporations in general. A Province may tax a Dominion company under its power of direct taxation, provided that it does not attempt in effect to levy indirect taxation under the guise of direct taxation, and provided that it does not discriminate between provincial and Dominion companies; but it may not enforce this taxation by any action which negates the Dominion company's status, e.g. by forbidding it to sue in the provincial Courts, nor can it impose such a penalty for failure to register, since in either case this would be to deny the company the juristic personality conferred by Dominion incorporation. While this doctrine has the authority of the Judicial Committee,' there is neither authority nor adequate ground for the further claim made on behalf of Dominion companies that in effect it is a negation of their status to exact from them fees based on the nominal capital when similar fees have already been paid to the Dominion, a contention which, if upheld, would inflict an obvious injustice on the Provinces.

1 John Deere Plow Co. v. Wharton, [1915] A.C. 330, at p. 340.
Great West Saddlery Co. v. The King, [1921] 2 A.C. 100, at p. 120.
John Deere Plow Co. v. Wharton, [1915] A.C. 330, at p. 343.
4 Great West Saddlery Co. v. The King, [1921] 2 A.C. at p. 120.
Great West Saddlery Co. v. The King, [1921] 2 A.C. at pp. 115, 123.

Provincial Powers of Incorporation. -The incorporation of companies with provincial objects is one of the exclusive powers of the Provinces, though, as seen above, the exclusive character of the power is annulled by the Dominion power and practice of incorporating companies, which in fact do not intend to carry on business in more than one Province. The essential difficulty, however, arises as to the result of the restriction implied in the words " provincial powers." The Dominion view of the Act was simple; the Provinces, it was held, should merely incorporate companies which were intended to carry on business in one Province, all other company incorporation belonging to the Dominion, and at one time this view was upheld by the process of disallowing or insisting on amendment of provincial Acts which disregarded this local restriction. The Provinces denied the Dominion claim; two main grounds were alleged in favour of the view that a provincial company need not be restricted to business within the province. In the first place provincial objects" might be held to denote objects not falling under the specific powers of the Dominion, so that a provincial company, e.g. dealing in grain, might do so in any province under its charter. But this interpretation must now be regarded as definitely impossible; the Judicial Committee evidently regard the limitation as local. Secondly, and more plausibly, it was contended that, while the powers conferred by the Province were local, the creation of the company brought about the existence of a juristic person, which by the comity of nations could be recognized by other Provinces or countries and carry on business there under its provincial incorporation. This contention was met by the argument that to act outside the Province must be ultra vires the company since it owed its existence to a provincial statute, which could only incorporate for provincial objects and which therefore could not possibly confer the capacity of exercising power beyond the provincial limits.*

The New Doctrine of the Judicial Committee. -The argument against the provincial claim rested in the main on the principle laid down by the House of Lords in Ashbury Carriage Co. v. Riche, defining the position of British statutory companies, and both sides to the controversy in Canada were agreed in regarding all Canadian companies, Dominion or provincial, as statutory. There were, however, three different methods in vogue as to creating companies :