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Previous to "The British North America Act, 1867," the Provincial Courts did not consider they possessed the power of enquiring and deciding whether the laws of their respective Legislatures were constitutional or not. Occasional attempts were made to test the validity of statutes, but they were ineffectual in their results. It has been and is quite different under the Federal Act. The Supreme Court of Canada and the Privy Council in England, have both concurred in recognizing the right, assumed by the Provincial Courts of original and apellate jurisdiction, to pass upon the constitutionality of the laws enacted by the Provincial Legislatures and the Parliament of Canada. This was anticipated by the framers of the Act, as appears by the Debates in the House of Commons.
On the 4th of March, 1867, when the Bill was under discussion, in the Imperial Parliament, Mr. Cardwell said: "As matters now stand, if the Legislatures of Canada acted ultra vires, the question would first be raised in the Colonial Law Courts, and would ultimately be settled by the Privy Council at home."