Page:Harvard Law Review Volume 8.djvu/513

Rh — A recent case before the judicial committee of the Privy Council, Brophy v. Attorney General of Manitoba, II The Times Law Reports, 198, furnishes some interesting suggestions upon a point which might well have been a burning question of our own constitutional law and history. It is well known that it was seriously proposed and advocated, at one time even agreed upon, in the Convention of 1787, to give to the national legislature power "to negative all State laws contravening," in its opinion, the Federal Constitution. Madison Papers, Elliott's Ed. of 1866, pp. 139, 321. Such a provision is, in substance, to be found in the constitutional statute which defines the powers of the Provincial government of Manitoba, for § 22 of ch. 3 of Canadian Statutes of 1880 provides for an appeal to the Dominion Cabinet from any act of the Legislature " affecting any right or privilege of the Protestant or Roman Catholic minority. . . in relation to education." The decision on appeal to be carried out in the last resort, but " as far only as the circumstances of each case require," by the Dominion Parliament. After prolonged litigation, having for its object a declaration of the unconstitutionality of the Manitoba Education Act of I890, it was finally declared to be intra vires, or, as an American would say, constitutional. Winnipeg v. Barrett, L. R. [1892] Cr. C., 445 The dissentients then appealed to the Cabinet, and the question framed to secure the opinion of judges upon the power which the Cabinet had finally reached the Privy Council, whose judgment was delivered by Lord Herschell, L. C., Brophy v. Attorney General, ut supra. Two points make it of interest in the United States. In the first place, the question whether the conditions have been fulfilled which authorize an appeal is quietly but clearly treated as a judicial question, not as a political question for the Cabinet to decide for itself, or even where its mere decision in the first instance is of weight. In the second place, the right of appeal covers, as the express decisions show, ground not covered by the power of the courts to declare acts unconstitutional. This, though due to the language of the Manitoba Constitution, might, it would seem, have happened if the provision had been inserted in our own, for the provision proposed was a power "to negative all laws . . . contravening in the opinion of the national legislature," the Federal Constitution. Manitoba has taken the Dominion's negative, with bad grace. And with Us a negative would probably have created friction and bad blood where the action of the courts is accepted quietly.

—— The recent English reports furnish two interesting cases involving the venerable and now somewhat decrepit tort of maintenance. In Alabaster v. Harness ('95, i Q. B. D. 339), the defendant was shown to have maintained one Tibbits in an action of libel brought against the present plaintiff. The defence set up in the present case was that the libel was directed against and affected the defendant Harness quite as much as Tibbits. The court held that this was not such a "common interest" as came within the exception to the rule against maintenance.

In Grant v. Thompson (II The Times L. R. 207) the facts were as follows. Thompson, wishing to injure one Shibley, procured the plaintiff, solicitor, to prosecute Shibley for larceny. The plaintiff did so unsuccess- fully, and now sues the defendant on his promise to guarantee the plaintiff to the extent of £20. It was objected that the contract was tainted