No. 2]
NOTES
The Indian Act, the Supremacy of Parliament, and
the Equal Protection of the Laws
A purely interpretive measure, or one by which legislation might
be invalidated? That was the central question concerning the effect
of section 2 of the Canadian Bill of Rights.1 The decision in Reg.
v. Drybones2 which answers the question in the latter sense touches
not one but several issues of fundamental constitutional importance.
It is noteworthy enough that the Court has held that existing legis-
lation may be rendered inoperative because of conflict with the
Bill of Rights. Of even greater importance are the issues which
the decision raises concerning the content of section 1 (b)
thereof,
which recognises and declares the right of the individual to equality
before the law and the protection of the law. These rights, evocative
of protections contained in the United States and Indian constitutions, 3
having been given substantive content in Canada may, in the light
of the Supreme Court’s decision, be made into substantial impediments
to the competence of Parliament. For the Bill of Rights will now
invalidate prior legislation. It is difficult in the light of the de-
finition contained in section 5(2) thereof to deny it the office of
acting as an impediment to future legislation. We are, if this is
so, firmly in the arena of “manner and form” limitations to the
supremacy of Parliament.
The facts in Reg. v. Drybones were simple. Drybones, a North
American Indian, was charged with being unlawfully intoxicated
off a reserve, contrary to section 94(b) of the Indian Act. 4 That
section makes it an offence for an Indian to be, inter alia, intoxicated
off a, reserve. Unlike the Territorial Liquor Ordinance5 the section
is directed explicitly towards Indians. Again, unlike the Ordinance,
section 94 (b) of the Indian Act makes provision both for a minimum
1 See Tarnopolsky, The Canadiati Bill of Rights, (1066) at pp. 90-98; Laskin,
Canada’s Bill of Rights, (1962), 11 I.C.L.Q. 519; Pavley, Some Aspects of the
Canadian Bill of Rights: an Anverican View, (1066), 4 Osgoode HSU L.T. 36;
Driedger, The Canadian Bill of Rights in Lang, (ed.) Contemporary Problems
of Public Law in Canada, (1068); Bowker, (1-970), 8 Alberta L.R. 409.
2 (.1070), 9 D.L.R. (Sd) 473, affirming (1967), 64 D.L.R. (2d) 260, aff. (.1967),
60 W.W.R. 321. The decision of ithe Court of Appeal is noted by Lysyk in (1.968),
46 Can. Bar Rev. 141.
3 The Constitution of the United States, 5th and 14th amendments; the Consti-
tution of India, article 14.
4 R.S.C. 1952, c. 149.
5R.O.N.W.T. 1956, c. 60.
McGILL LAW JOURNAL
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and a higher maximum penalty. The respondent’s argument was
simply that section 94(b) denied to Indians in the North-West
Territories, by reason of their race, equality before the law; that
section 94(b) therefore authorised the abrogation, abridgment or
infringement of one of the human rights recognized and declared
in the Bill of Rights as existing in Canada without discrimination
by reason of race; and that as a result of the conflict between section
94(b) of the Indian Act and the Canadian Bill of Rights, section
94(b) was rendered inoperative. In order to uphold this argument
the Court, as Cartwright, C.J.C. pointed out, was obliged to hold
that an infringement of a freedom recognized by section (1) but
not specially dealt with by section (2) of the Bill of Rights, could
render the inconsistent legislation inoperative.6
On the first question, that of repugnancy, a majority of the
Court held that the Bill of Rights could render inconsistent legis-
lation inoperative. Ritchie, J. (with whom Fauteux, Martland, Jud-
son, Spence and Hall, JJ. concurred on this issue 7) considered that
the opening words of section 2:
“2. Every law of Canada shall, unless it is expressly declared by an Act of
the Parliament of Canada that it shall operate notwithstanding the Canadian
Bill of Rights, be so construed and applied as not to abrogate… any of the
rights or freedoms herein recognised…”8
applied both to the freedoms recognized in section 1 and to those
aspects of the freedoms specially dealt with in section 2. If a statut’
or part thereof does purport to have this forbidden effect, the
offending provision becomes inoperative. While the Court might,
by analogy from cases on the construction of section 91 of the
B.N.A. Act 1867 have driven a wedge between the general words
of section 1 and the enumerations in section 2, it is hard to see
any warrant for any such holding.9 There is much to be said for
this construction. There can be no doubt that the Bill of Rights was
intended to apply to prior legislation. Had it been intended as a
purely interpretative measure, section 2 would surely have been
more narrowly drafted, since section 1 contains such general lan-
6 (1969), 9 D.L.R. (3d) 473, at p. 475 citing a passage from the judgment of
Davey, J.A. in Reg. v. Gonzales (1962), 32 D.L.R.
(2d) 290, at p. 292.
7 Hall, J. further elaborated his reasons in a separate concurring judgment.
8 Italics mine, Ritchie, J. italicizes the same passage at 9 D.L.R. (3d) 473, at
p. 482.
9 Professor Tarnopolsky, op. cit. at p. 94, recognised this danger. It may have
been a line of reasoning which Cartwright, C.J.C. was prepared to adopt, but
as to this, sed quaere. Cartwright, C.J.C. simply relies on a part of the judgment
of Davey, J.A. in Reg. v. Gonzales, supra at n. 7, in which this distinction appears.
His lordship does not appear to support the distinction as such.
No. 2]
NOTES
guage as the Bill of Rights contains. Indeed, it appears that the
Government, in introducing the Bill, did intend to give it an over-
riding effect. 10 To the majority of the Court, following the reasons
of Cartwright, C.J.C. in his dissenting judgment in Robertson and
Rosetanni V. The Queen,” the effect of sections 1, 2 and 5(2) of
the Bill of Rights is to make it clear that where there is an unre-
conciliable conflict between the Canadian Bill of Rights and another
Act of Parliament, the Bill of Rights must prevail. Ritchie, J. relies
strongly on the words of section 2 which refer to a declaration by
Parliament that an Act may operate notwithstanding the Bill of
Rights provided that there is an express declaration in the Act to
that effect. These words, would, in his Lordship’s view be super-
fluous if section 2 of the Bill of Rights were merely an interpre-
tative measure. The argument is a formidable one, as Pigeon, J.
(dissenting) conceded. In the result the Court rejects the holding
of Davey, J.A. in Reg. v. Gonzales 12 that section 2 of the Bill of
Rights is an interpretative measure only, and holds explicitly that
the effect of inconsistency between the Bill of Rights and an Act
of Parliament is, in the absence of a declaration to the contrary,
inoperative.
The dissenting judgments are, in a sense, difficult to explain.
Cartwright, C.J.C. who resiled from his former position in Robert-
son and Rosatanni V. The Queen13 based himself on the reasoning
of Davey, J.A. in Reg. v. Gonzales.’4 So apparently did Abbott, J.
To Davey, J.A. and now to Cartwright, C.J.C., the words of section 2
impose an imperative duty to construe and apply prior legislation
inconsistent with the Bill of Rights; that is, a duty ultimately to
apply the law even if it infringes one of the declared rights or
freedoms. The difficulty with this view, as Pigeon, J. ruled, is that
the exception in section 2:
“unless it is expressly declared by an Act of the Parliament of Canada that
it shall operate notwithstanding the Canadian Bill of Rights” is thereby
deprived of any practical meaning. It cannot be denied that the operation
of a rule of construction is not normally subject to such a qualification.1 4a
‘0 Bowker, loc. cit., n. 1 at p. 414 refers to the proceedings in Parliament. See
also Dredger, loc. cit., n. 1.
11 [1063] S.C.R. 651.
12 (19&2), 32 D.L.R. (2d) 290.
13 Supra, n. 11.
14 Supra, n. 12.
14a Supra, n. 2, at p. 490.
McGILL LAW JOURNAL
[Vol. 16
This point is attractive.15 It is perhaps not conclusive. If one took
the view (and no member of the Court explicitly did so) that some
legislation would under the Bill of Rights, require to be restrictively
construed because of its discriminatory character, but that it was
desirable that it be widely construed because the discrimination
amounted to a paternalistic or protective measure,”0 or was con-
sidered to be a necessary, if objectionable, war measure, 17 one might
by declaration wish to except the legislation from the (interpre-
tative) impact of section 2. We would again return to the realm of
ambiguity.’8 Pigeon, J. tried to avoid making a choice of this char-
acter by construing section 2 subject to section 1 (which must surely
be correct), but then holding that the freedoms recognized by section
1 exist only to the extent that existing laws conferred or did not
limit them. The result of this scheme is said to be that:
nothing more than proper construction of existing laws in accordance with
the Bill is required to accomplish the intended result. There can never be
any necessity for declaring any of them inoperative as coming into conflict
with the rights and freedoms defined in the Bill seeing that these are de-
clared in them.19
Even if this reasoning as to existing laws were admitted, and the
concededly vague character of the rights and freedoms recognized
makes it difficult to do so, the argument would settle nothing con-
cerning the effect of section 2 on future laws. Furthermore, Pigeon,
J.’s analysis is difficult to reconcile with the references in the Bill
of Rights to the War Measures Act.2 0 Cartwright, C.J.C. and Abbott,
J. did not adopt Pigeon, J.’s approach.
A further, but related argument adopted by Pigeon, J. is that
to read section 2 in such a way as to hold existing legislation inoper-
ative amounts to a radical departure from accepted constitutional
theory which can only be justified by plain words in the statute.
Allied to this is the fear of the unknown which might stem from
so fundamental a departure from existing law. To the extent that
ambiguity is present, Pigeon, J.’s argument is perfectly justified.
t;It is paaticulaxly relied on by Lysyk, (.10,68), 46 Can. Bar Rev. 141, at pp.
144-45.
Hirabayashi v. United States, 320 U.S. 91 (1943), dealt with at pp ………
1’ As for example, sec. 94 (b) of the Indian Act.
17 As for example the U.S. Emergency regulations dealt with in such cases as
post.
I8 Even further circumstances of ambiguity can be suggested. Suppose, for
example, the word “construed” in section 2 applied to the judicial function, while
“applied” were taken to refer to the executive function ?
‘9 (10-70), 9 D.L.R. (3d) 474, at p. 490.
20 Canadian Bill of Rights 1960, c. 44, sec. 6.
No. 2]
NOTES
But it cannot be said that the dissentients fully exploited those
elements of ambiguity which section 2, in my submission, presents.
Even in the light of Reg. v. Binus 21 giving the Supreme Court pow-
er to depart from its prior decisions, this may appear to be a threshing
of old straw. Granted the majority decision on this aspect of the
case, we now enter the era of manner and form limitations to the
supremacy of Parliament.22 This possibility once so radical in ap-
pearance, now seems relatively commonplace in Commonwealth juris-
dictions, though not in England. 23 . In Bribery Commissioner v. Ra-
nansinghe24 the Privy Council held that procedural restraints which
apply only the forms of lawmaking cannot be ignored by the legisla-
ture upon which they are imposed. Admittedly, the limitations which
these cases discuss derived from the constitutional instrument which
created the legislature.0 5 Nonetheless, there can be little doubt that the
legal rule of recognition, once altered so as to recognize procedural
limitations to the competence of Parliament, could extend to proce-
dural limitations in any document which the Court was prepared to
consider as of constitutional importance.26 The Canadian Bill of Rights
can be so characterized without doing violence to the spirit of judicial
pronouncements on the suject. In this respect section 2 of the Ca-
nadian Bill of Rights does provide machinery by which Parliament
can declare that a statute overrides the Bill of Rights. The limitation
to Parliament’s competence is thus formal in character. It would
appear that the Supreme Court has modified its theory of Parlia-
mentary supremacy, though within bounds no wider than those which
obtain in some Commonwealth jurisdictions and, conceivably, the
United Kingdom.27 And yet it is surprising that no member of the
Court explicitly refers to a debate which has now endured for twenty
years.
21 [1967] S.C.R. 594.
22 This indeed was a reason why Laskin, loc. cit. at note 1 above considered
that the Bill of Rights was interpretative only.
2 3 E.g. Bribery Commissioner v. Ranasinghe [1964] 2 W.L.R. 150 (P.C.); Akar
v. A.G. of Sierra Leone [,1969] 3 W.LR. 970 (P.C.); and of course Harris V.
Minister of the Interior 1952(2) S.A. 428.
24 At n. 23 above.
25 This is a circumstance much relied on by Wade Chitty’s in The Basis of
Legal Sovereignty [1055] C.L.J. 172 for asserting that manner and form limita-
tions could not apply to the United Kingdom. Cf. J.D.B. Mitchel, Constitutional
Law, (2 ad. 1968).
2 0 Or indeed, to any document. But this would require a very considerable
departure indeed from the rule of recognition, and a dangerous one.
2 7 See further Marshall, Parliamentary Sovereignty: A Recent Development
(.1966), 1 McGill L.$. 523.
McGILL LAW JOURNAL
[‘Vol. 16
The most extensive debate however, is likely to take place over
the extent to which section 1(b) of the Bill of Rights recognizes
the right of the individual to equality before the law and the pro-
tection of the law. These phrases had been narrowly construed in
Reg. v. Gonzales,2s and the narrow construction given in other recent
cases to the concept of religious freedom 29 would have led one to
assume that the Court would choose a narrow interpretation. In
fact, Ritchie, J. applied the phrase without enunciating any formal
limitations. In Robertson and Rosetanni v. The Queen 3 o it was said
that the Bill of Rights is not concerned with rights and freedoms
in an abstract sense, but rather with such rights and freedoms as
they existed in Canada immediately before the statute was enacted.
In the instant case Ritchie, J. finds that this characterization of
the issue did not conclude the debate because, as there was no con-
flict between freedom of religion and the Lords Day Act, the ques-
tion of repugnancy did not then arise. Having thus disposed of his
former judment, Ritchie, J. turns to the judgment of Tysoe, J.A. in
Reg. v. Gonzales 31 and in particular to the statement therein that
legislation directed at a racial group which treats all the members
thereof equally does not violate the guarantee to the individual of
equality before the law and the equal protection of the law. This
suggestion Ritchie, J. demolishes. It would, as his Lordship remarks,
require the most glaring discriminatory legislation against a group
to be enforced provided that each individual member of the group
were being discriminated against in the same way. But it is not
clear how widely Ritchie, J. would construe section 1 (b) of the Bill
of Rights. It means at least that no individual or group is to be
treated more harshly than another under the law. Ritchie, J. con-
cludes that an individual is denied equality before the law if it is
made an offence punishable at law on account of his race for him
to do something which others can do without having committed an
offence or being subjected to a penalty. Hall, J. in discussing this
issue, drew support for his conclusion from Brown v. Board of Edv-
cation,22 the case which, in the United States, destroyed the “sepa-
rate but equal” doctrine. The relevance of these decisions is to show
that the Canadian Bill of Rights is not fulfilled simply by treating
Indians equally with other Indians. In language which goes beyond
28 (1062), 32 D.L.R. (2d) 290.
29 E.g. Walter v. A.G. of Alberta, (1969), 66 W.W.R. 513 (Can. S.C.).
80 [1963] S.C.R. 571.
31 (1962), S2 D.L.R. (.2d) 290, at p. 296.
32 347 U.S. 483 (1953) overruling Plessey v. Ferguson, 153 U.S. 537 (1896).
No. 2]
NOTES
that of Ritchie, J., Hall, J. concludes that the Bill of Rights has
meaning.
… only when, subject to the single exception set out in s. 2, it is seen to
repudiate discrimination in every law of Canada by reason of race, national
origin, colour, religion or sex in respect of the human rights and funda-
mental freedoms set out in s. 1 in whatever way that discrimination may
manifest itself not only as between Indian and Indian, but as between all
Canadians, whether Indian or non-Indian. 3
There can be little doubt that the key to the importance of Reg. v.
Drybones will be in the way in which sections (1) and (2) are con-
strued. The remarks which follow are restricted to section 1(b).
Ritchie, J. seems in fact to construe the section quite narrowly, as
applying to situations where discriminatory legislation creates an
offence to which a particular class of individuals alone is subject.
Hall, J.’s approach is much broader. By relying, at least by way
of analogy on American decisions relating to the due process and
equal protection guarantees, the possibility is created of the Bill of
Rights extending beyond discriminatory penal provisions, into the
area of discriminatory civil disabilities as well. And this area now
comprehends a wide range of governmental activities. Certainly in
the United States and in India, the constitutional guarantees cover
the totality of government functions, including in America the con-
tent of legislation and its local enforcement. 34 In the United States
legislative classifications or discriminations based on race alone
have long been void as contravening the equal protection clause.
Similarly, a conviction founded on the discriminatory enforcement
of a law cannot stand.35 In wartime cases the Supreme Court in
upholding discriminatory restrictions against Japanese Americans
upheld them as relevant to the constitutionally recognized purpose
of defence.3 6 In one highly significant respect the Supreme Court
has gone far beyond this position. It now seems likely that discrimi-
natory classifications which involve race must be proven to be re-
lated to a legitimate purpose. The test for classification is whether
the impugned classification relates to the achievement of a valid
33 (1970), 9 D.L.R. (3d) 473, at pp. 486-7.
34 For india, see Seervai, Constitutional Law of India, (1967), at pp. 188 ff.
35 E.g. Yiek Wo v. Hopkins, 1dB U.S. 2-21 (1886).
3 GHerabayashi v. United States, 320 U.S. 81 (1043); Korematsa v. United
States, 89 L. Ed. 194, at p. 199 (1943) ; Re Erdo, 89 L. Ed. 243. In these cases the
“due process” clause of the 5th Amendment which applies to the Federal power
was in issue. But there is an overlap between the due process and equal protection
guarantees, the latter of which under the 14th amendment applies only to the
States. See Bolling v. Sharpe, 347 U.S. 497 (1954).
McGILL LAW JOURNAL
[Vol. 16
State purpose.3 7 The assumption which a majority of the Court
passed in wartime with the argument of military necessity was pre-
pared to make in favour of the executive it will not make today.38
Furthermore, it is difficult to see how a racial classification can
relate to an overriding legitimate purpose. Certainly the prevention
of misconception has been held not to be such a purpose. Justice
Steward indeed goes so far as to hold that a State law can never
be valid where it makes the criminality of an Act depend upon the
race of the actor.39
The potential relevance of all this is evident enough. It is further
relevant to an argument advanced in both Reg. v. Gonzales 40 and
Reg. V. Drybones41 that section 94(b) of the Indian Act -does not
contravene the Bill of Rights because its purpose is protective. This
argument evidently appealed to Pigeon, J. Mr. W.F. Bowker, Q.C.
to whose learned note I am indebted would also support section
94(b) on this footing.42 Mr. Bowker rightly contends that the ma-
jority decision in Reg. v. Drybones implies that legislation imposing
penalties on Indians qu4 Indians is discriminatory and therefore a
denial of equality. He further notes that the decision of the Court
of Appeal, unlike that of Ritchie, J. deals not simply with intoxi-
cants, but with the provisions of the Indian Act generally. In Mr.
Bowker’s view such legislation, being protective, is not discrimina-
tory, and ought not therefore to be held inoperative as contravening
section 1(b) of the Bill of Rights. In developing his argument, Mr.
Bowker relies extensively on American doctrine which, inevitably,
will have an increasing role to play in this area.
The problems, or potential problems with this argument are two-
fold. First, even a protective measure may be discriminatory, at
least viewed from the standpoint of the individual rather than the
group. If the constitutional protections enure to the benefit of indi-
viduals (and the Canadian Bill of Rights is so drafted) then much
discrimination in the interests of the group may be invalid, how-
ever benign the intent underlying it. 43 If rights are individual, then
37 See in general Forkosch, Constitutional Law, (1063) pp. 467 ff.
38 Thus for example the facts concerning separate education were investigated
in Brown v. Board of Education, 347 U.S. 483 (.1053).
39 Loving v. Virginia, 888 U.S. 1; 18 L.Ed. 2d. 101.0 (1967); McLaughlin V.
Florida, 379 U.S. 184 (1064).
40 (L92), 32 D.L.R. (2d) 290.
41 (1970), 9 D.J.R. (Sd) 473.
42 (190), 8 Alberta L;R. 400.
43 On an analogous point, also involving equality before the law, see Hellerstein,
The Benign Quota (1063’), 17 Rutgers L. Rev. 51.
No. 2]
NOTES
any individual in a protected group is entitled to repudiate the
protective measure as discriminatory. He need not accept govern-
mental paternalism where this restricts him in exercising rights
which others enjoy. Of course these remarks will not fit all cases.
If for example land were conveyed to a group, only the members
of which could occupy it, and none of whom was granted a separate
interest which he could alienate, the restraint upon him would not
amount to invalid discrimination. The right and the restriction arise
uno flatu.
Secondly, and of equal importance is the evident reluctance of
American Courts to assume the existence of racial characteristics
warranting protective legislation. Like Mr. Bowker, Justice Douglas
has written of the devastating effect of liquor on the North Ameri-
can Indian as providing a constitutional basis for discriminatory
legislation. 44 In the past this has proven to be sufficient justifica-
tion for discriminatory federal liquor laws.45 In this respect it should
be noted that while the United States Constitution contains no single
provision corresponding to section 91(24) of the B.N.A. Act 1867,
Congress enjoys plenary powers over Indians, deriving from the
commerce and treaty powers. Such powers are of course subject to
the American Bill of Rights.48 Today however, in particular since
the American Indians obtained citizenship, the United States has
taken the view that legislation curtailing the liquor traffic with
Indians may be unconstitutionally discriminatory and has limited
drastically the impact of the Indian Liquor laws. 47 Furthermore,
cases like Brown v. Board of Education 48 show that American fed-
eral courts are simply not prepared to assume that particular racial
groups labour under innate disadvantages which warrant the apyli-
cation to them of protective or segregating measures. Classification on
segregation of students by educational criteria for example, is per-
44 We the Judges, (1956), p. 399, cited in Lockhart, Kamisar, Chopper The
American Constitution, (1564). Mr. Bowker cites Committee findings in support
of the claim that Indians still have difficulty in coping with liquor. This, but
for the instant case, would appear to give colour of right to the Indian Act, sec.
94(b).
45 U.S. v. McGowan, 392 U.S. 535, 82 L. Ed. 410 (1938); U.S. V. Sandoval,
231 U.S. 28, 58 L. Ed. 107.
46 Stephens v. Cherokee Natioi, 174 U.S. 445, -at p. 478 (1899) ; Shoshone Tribe
of Indians v. United States, 299 U.S. 476 (1937).
47 Federal Indian Law, (1958) p. 382, and see 67 Stats. 586.
48 347 U.S. 483 (1953).
McGILL LAW JOURNAL
[Vol. 16
mitted. Race is not recognized as an apt criterion.4 9 Nor is racial clas-
sification permitted in relation to the employment or assignment of
teachers 5 0 or their promotion. 51 If this doctrine were followed in
Canada, and the possibility arises from the judgment of Hall, J.
and is not excluded by Ritchie, J., it might well be that even con-
ceding the plenitude of Federal power over Indians under section
91(24) of the BNA Act 1867, protective legislation would require
an express declaration that it was intended to operate notwithstand-
ing the Canadian Bill of Rights. There is nothing surprising in this.
In India where a doctrine of classification taken from the United
States operates, 52 article 15(4) was explicitly inserted in the Con-
stitution in order to permit favourable discrimination in the interests
of socially and educationally backword classes of citizens or for the
Scheduled Castes or Scheduled Tribes.
It is clear, as Pigeon, J. and Mr. Bowker point out, that the
protective provisions of the Indian Act extend beyond the sections
dealing with liquor. The importance of Reg. v. Drybones extends
beyond the Indian Act. A glance at a standard American casebook 13
for example, discloses that the equal protection doctrine extends to
education, the right to marry and the franchise. And the reach of
due process can overlap.54 While some of these areas are within
provincial competence in Canada, other areas such as employment
in the Federal service or in federally controlled agencies governed
by statute may well appear at some time or other to be subject to
the operation of the Bill of Rights. In the result, Canadian consti-
tutional law has lost some certainty. It has gained in interest and,
some would say, in humanity.
L.H. LEIGH
49 Hobson v. Hansen, 269 F. Supp. 401 (1967). It is probably right to say that
no showing that segregation would reflect innate abilities would prevail. See
United States v. School District 151 of Cooke County Ill., 301 F. Supp. 201
(1069); Moore v. Tangepahoa Parish School Board, 304 F. Supp. 244 (1969) at
p. 249.
50 Wall v. Stanly County Board of Education, 378 F. 2d. 275 (1967); Smith v.
Board of Education, 365 F. 2d. 770 (1,966).
51 Porcelli v. Titus, 302 F. Supp. 726 (1969).
52 Seervai, op. cit. at note 34 above; Dalmia v. Shri Justice Tendolkar, [1959]
S.C.R. 3278
t pp. 298-300.
53 Barrett, Bruton and Honnold, Constitutional Law, (3rd. ed. 1968) Chapter 9.
S4 E.g. Loving v. Virginia 388 U.S. 1; 18 L.Ed. 2d. 1010 (1917); Bolling v.
Sharpe, 347 U.S. 497; 98 L.Ed. 884 (1954).
* Reader in English law, London School of Economics and Political Science.
This piece was originally a case note. Thanks to the complexity of the subject
it grew somewhat. But it is only a preliminary examination of the subject and
purports to be no more.
