¹ Kinnane, , Anglo-American Law 191 (2d ed. 1952).Google Scholar

² Pollock, I and Maitland, , The History of English Law 460 (2d ed. 1959).Google Scholar

³ IX Holdsworth, , History of English Law 73 (3rd ed. 1944).Google Scholar

⁴ Supra note 2, at 460.

⁵ Chapter 41.

⁶ Supra note 2, at 462.

⁷ Ibid., 463.

⁸ I Commentaries 372.

⁹ Coke on Littleton, 8a.

¹⁰ Ibid.

¹¹ 25 Edw. III, stat. 2.

¹² 42 Edw. III, c. 10.

¹³ For example, he was incapable of becoming a Privy Councillor, a Member of Parliament, the holder of a public office, or receiving from the Crown a grant of land in Great Britain or Ireland: 1 Geo. I, c. 4; 12–13 Will. III, c. 2.

¹⁴ 27 Edw. III, c. 2; 28 Edw. III, c. 13.

¹⁵ Chapter 13.

¹⁶ The status of the Jewish trader is distinct. As related by Bracton: “The Jew can have nothing that is his own, for whatever he acquires, he acquires not for himself, but for the king.” The servility of the Jew extended only to the king, however, not to others. Certain dispensations were permitted him, chiefly the charging of interest on money lent (denied at that time to Christians). If the king’s interests were not involved, the Jew’s relationships with Gentiles were determined by law. The Jewish community was permitted to arrange its own affairs according to Hebrew law. See Pollock and Maitland, op. cit. supra note 2, at 468–475. Thus in a sense a separate body of law existed for the Jew just as the Romans used a separate body of law for the foreigner.

¹⁷ Select Cases in the Star Chamber (Seldom Society, Vol. 16) I, cxxxviii. And see Beardwood, , Alien Merchants in England, 1350 to 1377, Their Legal and Economic Position (Cambridge, Mass., 1931).Google Scholar

¹⁸ “The Alien in Legal History,” (1927) 163 The Law Times 497.

¹⁹ (1609), 7 Co. Rep. 1.

²⁰ Proceedings against Aeneas Macdonald (1747), 18 Howell’s State Trials 858, 859.

²¹ Report of the Naturalization Commission, Parliamentary Papers (1868–1869), v.

²² 33 Vict., c. 66.

²³ Ibid., s. 7.

²⁴ Ibid., s. 4.

²⁵ An Act Introducing English Civil Law into Upper Canada; Statutes of Upper Canada, 32 Geo. III, c. 1.

²⁶ Malloy, I, Treaties, Conventions, etc. 580.Google Scholar

²⁷ For ease of reference, the word “Americans” will be used to describe all former residents of the thirteen colonies who moved north into Upper Canada in the period 1783 to 1820, United Empire Loyalists excepted.

²⁸ 4 Geo. II, c. 2t. The statute also clarified still another act, 7 Anne, c. 5 (1708).

²⁹ Supra note 12.

³⁰ 13 Geo. III, c. 21.

³¹ See supra note 21.

³² See Proclamation dated April 6, 1796 by John G. Simcoe, Lieutenant-Governor of Upper Canada; Fraser, , Fourth Report of the Bureau of Archives for the Province of Ontario, 1906, at 184–85 (Toronto, 1907),Google Scholar and Proclamation dated December 15, 1798 by Peter Russell, President of Council: ibid., 196–97.

³³ See Smith, Michael, A Geographical View of the Province of Upper Canada 61 (Hartford, 1813).Google Scholar

³¹ See supra, note 21.

³⁵ 13 Geo. II, c. 7.

³⁶ “If there is any social threat more disturbing than the threat to a man’s ownership of his own property, it is hard to imagine what it is, yet thousands of people who had been in the province for over thirty-five years now found themselves under it.… Here was as divisive an issue as could well arise; it arose directly out of the War of 1812 and it had a good deal to do with preparing the soil out of which grew the rebellion of 1837.” Lower, A.R.M., Canadians in the Making 184 (Toronto, 1958).Google Scholar

³⁷ 30 Geo. III, c. 27.

³⁸ Ibid., sec. 1.

³⁹ See Doughty, and Story, , Documents Relating to the Constitutional History of Canada 1819–1898, at 5–6 (Ottawa, 1935).Google Scholar

⁴⁰ Ibid., 7. The Attorney-General’s reasoning appears fallacious. If these persons were British subjects throughout, then bearing arms against His Majesty in the War of 1812 would certainly be treasonable conduct.

⁴¹ Ibid., 8.

⁴² Ibid.

⁴³ Craig, G.M., Upper Canada: The Formative Years, 1784–1841, at 115 (Toronto, 1963).Google Scholar

⁴⁴ Statutes of Upper Canada, a Geo. IV, c. 4.

⁴⁵ See supra note 39, at 159–60.

⁴⁶ Ibid., 234–5.

⁴⁷ Doe d. Thomas v. Acklam (1824), 2 B. & C. 779.

⁴⁸ Supra note 46.

⁴⁹ Supra note 39, at 296. In the same address, the Assembly stressed that the 1790 Statute — 30 Geo. Ill, c. 27 — was passed to encourage emigration from the United States and that it contained no provisions for naturalization.

⁵⁰ Supra note 39, at 272–3. For the reaction of the government of Upper Canada to this despatch, see the proceedings of the Executive Council at its meeting of February 3, 1826: ibid., 303–05.

⁵¹ See the Naturalization Bill, Upper Canada, ibid., 351–55.

⁵² Letter, Aberdeen to Ashburton dated June 3, 1842: see Ward, and Gooch, , The Cambridge History of British Foreign Policy, vol. 2, 250–51 (Cambridge, 1923).Google Scholar

⁵³ Supra note 39, at 362–3.

⁵⁴ See letter from Lord Goderich to Sir Peregrine Maitland (Lieutenant-Governor of Upper Canada) dated July 10, 1827: ibid., 363–6.

⁵⁵ 9 Geo. IV, c. 21 (U.C.). Discussed in Iler v. Elliott (1872), 32 U.C.Q.B. 434.

⁵⁶ Other statutes were passed in Upper Canada concerning the right of aliens to hold land, but these created little controversy. In 1814 and 1818 two acts providing for the forfeiture of alien estates on grounds of treason had become law. By 2 Will. IV, c. 7 (1832), titles derived through aliens were confirmed. (For a discussion of this statute, see Iler v. Elliott, supra note 55.) By 4 & 5 Vict., c. 7 (1841), aliens domiciled in the province for 7 years either prior or subsequent to 1841 were deemed to be natural-born subjects. The right to hold and convey realty commenced from the date that residence began. Finally, in 1849, an act providing that “on and from the 23 day of November 1849, every alien shall be deemed to have had and shall hereafter have the same capacity to take by gift, conveyance, descent, devise, or otherwise howsoever, and to hold, possess, enjoy, claim, recover, convey, devise, impart and transmit real estate in this Province, as natural born or naturalized subjects of His Majesty”: 12 Vict., c. 197, sec. 12. (For a discussion of this statute, see Murray v. Heron (1859), 7 Gr. 177.) The effect of this 1849 statute was to remove forever one of the chief disabilities attaching to aliens: the right to own, inherit, and otherwise deal in land. The period of residence was later reduced from 7 to 5 years by 18 Vict., c. 6 in 1854.

⁵⁷ Supra note 47, at 798.

⁵⁸ Ibid., 786.

⁵⁹ Ibid.

⁶⁰ 6 Morrisons Diet, of Decisions 4649.

⁶¹ Salter v. Hughes (1864), 5 N.S.R. 409.

⁶² This reference is to the preliminary Treaty of Peace, dated November 30, 1782. The Treaty became definitive September 3, 1783.

⁶³ Supra note 61, at 411 (italics added). A Canadian court was later to decide that those statutes dealing with subjects were quite distinct from those addressed to foreign immigrants. In Doe d. Hay v. Hunt (1854), 11 U.C.Q.B. 367, Robinson C. J. said at 387: “We think it… clear there is nothing in the statute 13 George II, ch. 7 [1740], or 13 George III, ch. 21 [1773]3 or any other statute, which makes the civil rights of the children of natural-born subjects born abroad, and which they can claim under the 4 George II, ch. 21 [1730], at all depending upon their taking the oaths and the sacrament, and making the declaration required of foreign Protestants, who are to be naturalized under the former acts. The provisions respecting the two classes of persons are perfectly distinct and independent of each other.”

⁶⁴ Doe d. Auchmuty v. Mulcaster (1826 5 B. & C. 771. The facts of this case were somewhat similar to those in the Canadian case Salter v. Hughes, supra note 61.

⁶⁵ Treaty of amity, commerce and navigation between the United States and Great Britain. Signed at London November 19, 1794. 8 U.S. Stat. 116; T.S. No. 105; Malloy, I, Treaties, Conventions, etc., 590 Google Scholar; Martens, V, Recueil 640.Google Scholar

⁶⁶ The effect of this provision was considered by the Upper Canada Court of Queen’s Bench in an inheritance action entitled Doe d. Hay v. Hunt, supra note 63.

⁶⁷ Treaty for the Cession of Louisiana, April 30, 1803, 8 U.S. Stat. 200; T.S. No. 86; Malloy, I, Treaties, Conventions, etc., 508.Google Scholar

⁶⁸ Letter from Downing Street to Lieutenant-Governor Maitland dated May 10, 1828. Doughty and Story, op. cit. supra note 39, at 428.

⁶⁹ Randall, , “Nationality and Naturalization,” (1924) 40 L.Q.R. 18, 24.Google Scholar

⁷⁰ Supra note 36.

⁷¹ 30–31 Vict., c. 3.

⁷² Angus, H.F., “The Legal Status in British Columbia of Residents of Oriental Race and their Descendants,” (1931) 9 Can. Bar Rev. 1, 3.Google Scholar

⁷³ See Howay, F.W., British Columbia, The Making of a Province 262 (Toronto, Ryerson Press, 1928).Google Scholar

⁷⁴ See Ormsby, Margaret A., British Columbia: A History 351 (MacMillan, 1958).Google Scholar

⁷⁵ Ibid., 370.

⁷⁶ Ibid., 350.

⁷⁷ See Union Colliery Company of British Columbia v. Bryden, [1899] A.C. 580, 581.

⁷⁸ Chinese Tax Act, Stat. B.C. 1878, c. 35. This statute was held ultra vires the authority of the province in Tai Sing v. Maguire (1878), 1 B.C.R., Pt. I, 101.

⁷⁹ Coal Mines Regulation Act, R.S.B.C. 1897, c. 138. This legislation was declared ultra vires in In re Coal Mines Regulation Act (1904), 10 B.C.R. 408. The same result was sought again later in The Metalliferous Mines Regulation Act, R.S.B.C. 1936, c. 189.

⁸⁰ Supra note 77.

⁸¹ Cunningham and Attorney-General for British Columbia v. Torney Homma, [1903] A.C. 151.

⁸² Both the professions of law (Law Society of B.C. Rules) and pharmacy (Pharmacy Act, R.S.B.C. 1936, c. 215) used this device.

⁸³ Forest Act, R.S.B.C. 1936, c. 102.

⁸⁴ B.C. Liquor Control Board Regulations (1925), Rule 28.

⁸⁵ Brooks-Bidlake and Whittall Ltd. v. Attorney-General for British Columbia, [1923] A.C. 450.

⁸⁶ Treaty of Commerce and Navigation between the United Kingdom and Japan. Signed at London April 3, J911. 104 British and Foreign State Papers, 159; VIII Martens, N.R.G. 3d. ser., 413.

⁸⁷ The Japanese Treaty Act, 1913, S.C. 1913, c. 27.

⁸⁸ Re The Japanese Treaty Act, 1913, (1921), 56 D.L.R. 69; In re Employment of Aliens Act (1921–22), 63 S.C.R. 293.

⁸⁹ S. 132: “The Parliament and Government of Canada shall have all Powers necessary or proper for performing the Obligations of Canada or of any Province thereof, as Part of the British Empire, towards Foreign Countries arising under Treaties between the Empire and such Foreign Countries.”

⁹⁰ Provincial Home Act, R.S.B.C. 1936, c. 228.

⁹¹ B.C. Public Works Contract, clause 45.

⁹² 1925 Sess. Paper No. 29, at 52.

⁹³ Stat. Sask. 1912, c. 17.

⁹⁴ Quong Wing v. The King (1914), 49 S.C.R. 440.

⁹⁵ Ibid., 444.

⁹⁶ Ibid., 448.

⁹⁷ Ibid., 465.

⁹⁸ Ibid., 452.

⁹⁹ Ibid., 456.

¹⁰⁰ It may be argued that this statement is an exercise in semantics. The Alien Labour Act, a federal statute, first passed in 1897 (60–61 Vict., c. 11) is still in force in Canada (R.S.C. 1952, c. 7). This act makes it unlawful for anyone “in any manner to prepay the transportation or in any way to assist, encourage or solicit the importation or immigration of any alien or foreigner into Canada, under contract or agreement, parole or special, express or implied, made previous to the importation or immigration of such alien or foreigner, to perform labour or service of any kind in Canada” : s. 2. The statute was passed under British Columbia pressure in an effort to stop the flow of immigrants from Asia. It is something of an empty phrase to say that no economic discriminatory legislation exists if in fact no Asian aliens are permitted to enter the country; this is not far from the present Canadian position. The Alien Labour Act provoked a rash of prosecutions in many parts of the country: see, for example, in B.C.— Downie v. Vancouver Engineering Works (1904), 10 B.C.R. 367; in Man. — Murray v. Henderson (1910), 14 W.L.R. 170; in N.B. — Rex v. Forbes (1906), 37 N.B.R. 402; in Ont.— Rex v. Corby Distillery Co. (1907), 9 O.W.R. 762; in Que. — Windsor Hotel Co. v. Hinton (No. 1) (1912), 5 D.L.R. 224.

¹⁰¹ The rebellion, led by William Lyon Mackenzie, was the culmination of the several grievances of the, people against the establishment. This revolt, and another in Lower Canada, led to the despatch to Canada in 1838 of Lord Durham, to his famous report in 1839, and to the Act of Union bringing the two provinces together in 1840 (3 and 4 Vict., c. 35).

¹⁰² Robinet v. Lewis (1829), Draper 44.

¹⁰³ Doe d. Patterson v. Davis (1837), 5 O.S. 494.

¹⁰⁴ Doe Richardson v. Dickson (1832), 2 O.S. 292b.

¹⁰⁵ Wood v. Campbell (1847), 3 U.C.Q.B. 269.

¹⁰⁶ Tai Sing v. Maguire ( 1878), 1 B.C.R., Pt. I, 101.

¹⁰⁷ In re Kanamura (1904), 10 B.C.R. 354.

¹⁰⁸ Baxter v. Jacobs (1889), 1 B.C.R., Pt. II, 373.

¹⁰⁹ Merritt v. Copper Crown Mining Co. (1901), 34 N.S.R. 416.

¹¹⁰ Franke v. McGrath (1883), 22 N.B.R. 456.

¹¹¹ Re Varesick and British Columbia Copper Co. (1906), 5 W.L.R. 56, 58.

¹¹² Krzus v. Crow’s Nest Pass Coal Co., [1912] A.C. 590.

¹¹³ Ibid., 594.

¹¹⁴ Supra note 112. In contrast with the B.C. attitude, the Quebec Supreme Court construed a workmen’s compensation statute in an exceedingly liberal fashion in Mathilda Johansdotter v. Canadian Pacific Railway Co. (1915), 47 Que. S.C. 76. The court awarded judgment under the Workmen’s Compensation Act of Alberta to a non-resident alien on the basis of the death of her son, killed in Alberta while in the employ of the defendant company. The defendant was found to be properly before the court because its head office was in Montreal. The court further waived all limitation periods in the act, saying that the absence of the plaintiff in a foreign country was justification for the delay of some 18 months in commencing the proceedings.

¹¹⁵ Lord Campbell’s Act, R.S.O. 1897, c. 166.

¹¹⁶ Gyorgy v. Dawson (1907), 13 O.L.R. 381.

¹¹⁷ Ibid., 383.

¹¹⁸ Angustino v. Canadian Northwestern Railway Company, [1927] 3 W.W.R. 321.

¹¹⁹ [1928] 1 W.W.R. 481, 483.

¹²⁰ Ibid. Harvey C.J.A. also distinguished decisions from Manitoba on the basis of the provisions of the Manitoba King’s Bench Act, R.S.M. 1913, c. 46, s. il, which varied from the relevant parts of the Consolidated Rules of the Supreme Court of Alberta.

¹²¹ In re Daniluk Estate, [1935] 1 W.W.R. 142.

¹²² Ibid., 143.

¹²³ Ibid., 144.

¹²⁴ Ibid.

¹²⁵ Re Kvasnak, [1951] 3 D.L.R. 412. (The Dependant’s Relief Act, R.S.S. 1940, c. 111).

¹²⁶ Ibid., 418.

¹²⁷ Re Lukac; Hayzel et al v. Public Trustee (1963), 40 D.L.R. (2d) 120.

¹²⁸ Family Relief Act, R.S.A. 1955, c. 109.

¹²⁹ Supra note 127, at 124.

¹³⁰ Ibid.

¹³¹ Zajac v. Zwarycz, Supreme Court of Ontario, judgment of Grant J. dated April io, 1963.

¹³² R.S.O. 1960, c. 104.

¹³³ Supra note 131, at 1 a of the judgment.

¹³⁴ U.S.C. (1946 ed.) Title 31, #133; 31 U.S.C.A. #123.

¹³⁵ 331 Mass. 33; 116 N.E. 2d 854 (1954).

¹³⁶ An important distinction should be noted between the Mazurowski case and the judgment of Grant J. in Zajac v. Zwarycz, supra note 131. In the latter case the alien’s application was dismissed absolutely, thus depriving him of any further claim. In the former, albeit under different circumstances, the court refused only to release the moneys, and regarded its action in so doing not as a deprivation of the petitioner’s property but as a protection of it in contemplation of the day when circumstances would permit the moneys to be released to the petitioner.

¹³⁷ Sovietskoye Gosudarstvo i Pravo.

¹³⁸ As reported in The New York Times, July 17, 1961, at 21, col. 1.

¹³⁹ An example of this temper of a legislature is a private act of the Legislative Assembly of Alberta, “An Act respecting Annie Sidlowich and the Estate of James Popiw, deceased,” Stat. Alta. 1961, c. 101, passed to prevent the possible transfer of assets out of Alberta to a prospective claimant resident behind the iron curtain. This was not the first time that the Alberta legislature had acted to defeat a claim from behind the iron curtain. In 1939 the Intestate Succession Act, Stat. Alta. 1928, c. 17, had been amended (Stat. Alta. 1939, c. 76) in order to permit illegitimate children within the province to gain priority over next-of-kin without. The amendment was challenged in the Supreme Court of Alberta on the ground that it interfered with civil rights by changing priorities of claimants retrospectively. The court held the legislation to be intra vires: In re Oleksa O gal Estate, [1940] ι W.W.R. 665.

¹⁴⁰ R.S.C. 1952, c. 23, s. 24.

¹⁴¹ S.C. 1960, c. 44, s. 1: “It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms.…” S. i(a) talks about “enjoyment of property.” Whether this would safeguard the economic interests of a resident alien from a discriminatory, but constitutional, statute, however, is far from certain.

¹⁴² See, for example, reports on the International Conference on the Treatment of Foreigners, Paris, 1939, in 24 Am. J. Int’l. L. 570, 748 (1930); Cutler, , “Treatment of Foreigners,” 27 Am. J. Int’l. L. 227 (1933).Google Scholar