1 attributes. By the British North America Act, Prop. 1-2 1867, has been reconveyed to the separate provinces by the central power some of these rights and revenues, and only from such reconveyance can the provinces derive their right and title: title: Reg. v. Taylor, 36 U.C.R. 191.” Contrary Loranger, J. However, in his pamphlet entitled Letters upon the Interpretation of the Federal Constitution, (first letter), Mr. Justice Loranger says, at p. 40:-" It is one of the points of the doctrine hostile to local powers view of that, in entering into Confederation, the provinces returned to the Imperial government all the rights theretofore possessed by them, as well as all their property, so that a new distribution thereof might be made between them and the Federal government. This doctrine, which exhibits the imagination of its inventors, does not, in an equal degree, show the solidity of their powers of reasoning, for not only do we not find one word in the resolutions of the conference, the parliamentary discussion, or the Union Act, which might be construed into such a voluntary renunciation of their autonomy by the provinces, but this supposition is contrary to all the political events which preceded, accompanied, and followed Confederation; it is altogether improbable, and we must say is repugnant to common sense." In the Thrasher Case Crease, J., speaks as though per the surrender had been to the Dominion parliament. 1In a speech of the Hon. Geo. Brown, in 1864, he said :--“ There was one point to which he was desirous of calling particular attention, namely, to the fact that in framing their constitution they had carefully avoided what had proved a great evil in the United States, and that is the acknowledgment of an inherent sovereign power in the separate States, causing a collision of authority between the General and State governments, which, in time of trial, had been found to interfere gravely with the efficient administration of public affairs :" Gray on Confederation, p. 122. 2Quebec, 1884. See Proposition 64. 31 B.C. (Irving) at p. 199, (1882). Crease, rights merged in Canada. Prop. 1-2 He says:-" Everything the colony could give up, consistently with its Imperial allegiance, was vested Provincial absolutely in Canada, and redistributed or reserved to Dominion or Province respectively by the provisions of the British North America Act." He afterwards observes that perhaps he should substitute the word "merged " for "vested absolutely in Canada," and adds:-" The province had parted with all her rights in order to take some of them again in a different and (except when otherwise specifically prescribed) in a subordinate shape." Per Gray, J. And Gray, J.,' speaks in much the same way. The learned judges, however, were referring more especially to British Columbia, and it may be thought more accurate to speak of her surrendering her powers to the Dominion when entering Confederation than it would be to speak of the provinces first confederated having done so. Per Spragge, C.J. The Act extinguished some provincial powers. Loranger, J.'s view. 2 It cannot be disputed that, as pointed out by Spragge, C. J., in Hodge v. The Queen, the effect of the British North America Act was more and other than a distribution of legislative power, it was an extinction of legislative power in regard to some subjects which, up to Confederation, had been subjects for provincial legislation. But it is easy to understand the point of view of Mr. Justice Loranger, in his pamphlet just referred to, where he says:"In the case of the Canadian confederation the provinces did not attribute to the federal government powers of a nature different from those that 11 B.C. (Irving) at p. 224. 27 O.A. R. at p. 254, 3 Cart. at p. 169, (1882). At p. 44-5. provinces the certain each before possessed. They delegated to it a por- Prop. 1-2 tion only of their local powers to form a central power, that is to say, they allowed it the management of their affairs of a general character, but retained their own government for their local affairs. It was a concession of existing powers that was The made to it and not a distribution of new powers. conceded to The powers of the central government came from Dominion the provinces, as those of an ordinary partnership powers. come from the partners; to invert the order and state that the powers of the provinces come from the central government would be to reverse the natural order of things, place the effect where the cause should be, and have the cause governed by the effect." And in his Parliamentary Government in the British Colonies,1 Mr. Todd says:-" For the purpose of enabling the central government to view. undertake the supreme authority of control and general legislation in and over the entire Dominion of Canada, the provinces agreed to surrender to the federal parliament the exclusive right to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned (by the British North America Act) exclusively to the legislatures of the provinces." Mr. Todd's theory. However, with submission, the correct view in The legal legal theory is indicated by the Propositions under discussion, namely, that neither does the Dominion parliament get its powers from the provinces, nor the provincial legislatures theirs from the Dominion, but both alike derive their powers from the Imperial parliament under the British North America Act. 12nd ed., at p. 432. Prop. 1-2 Per In Regina v. Hodge, in the Ontario Court of Queen's Bench, Hagarty,C.J., uses words confirmatory of our leading Propositions, saying :-"The British North America Act completely rearranged our Constitution The B.N.A. and established the Dominion and provincial gov Hagarty, C.J. Act a com plete rearrangement. And a new ernments with defined powers and duties;" and in Leprohon v. The City of Ottawa the same learned judge expressed the view that "we must take the Confederation Act as a wholly new point of departure. The paramount authority of the Imperial departure. parliament created all the now existing legislatures, defining and limiting the jurisdiction of each. The Dominion government and the provincial governments alike spring from the same source.' And in the same way, though not so strongly, in Ex parte Owen, Weldon, J., says :-" The British North America Act is the commencement of a great change,-a new point of departure in our legislation takes place." Per Ramsay, J. 3 In Bank of Toronto v. Lambe, Ramsay, J., says "I do not hesitate to say that to pretend Acts of 1774 that the Acts of 1774 and 1791 have any direct bearing on the interpretation to be given to the and 1791 have no direct bearing on B.N.A. Act. 146 U.C. R. at p. 149, 3 Cart. 187, (1881). In an article on Federal Government in Canada, 9 C. L.T. at p. 220, Mr. Bourinot cites this dictum of Hagarty, C.J., and also that of Strong, J., in St. Catharines Milling and Lumber Co. v. The Queen, quoted supra pp. 5-6, but says:-" But by no reasoning from the structure of the Act can this contention which makes the provinces the mere creations of the statute, and practically leaves them only such powers as are specially stated in the Act, be justified. If it were so there must have been for an instant a legislative union, and a wiping out of all old powers and functions of the provincial organizations, and then a re-division into four provinces with only such powers as are directly provided in the Act.' But besides the authorities cited in the notes to this Proposition, see also Proposition 66 and the notes thereto. 22 O. A. R. at p. 532, 1 Cart. at p. 604, (1878). 34 P. & B. (20 N. B.) at p. 490, (1881). 4M. L. R. I Q.B. at p. 168, 4 Cart. at p. 61, (1885), sub nom. 'The North British and Mercantile Fire and Life Ins. Co. v. Lambe.' But see the words of Mr. Justice Loranger, infra pp. 15-16. J. British North America Act appears to me to be Prop. 1-2 3 the old con Gray, J. And to refer again to the Thrasher Case, Gray, So, too, per J., there says:-"This Act has hitherto been considered by all Courts, all judges, all statesmen, and public men as a new departure in the Constitution of Canada, as well as of the several provinces forming the Dominion. The authorities are so numerous that the position may be assumed as a tional recognized axiom of constitutional law, when applied to Canada or its constituent parts." And he then quotes the words of Hagarty, C.J., above cited, in Leprohon v. The City of Ottawa. A constitu axiom. And, lastly, some words of Holroyd, J., in the interesting Australian case of Musgrove v. Toy, a case An also alluded to in the notes to Proposition 9, are analogy. in point here. He says: "Whatever measure 13 S.C.R. at p. 560-1, 2 Cart. at p. 54, (1880). See, also, per Gwynne, J., in Mercer v. Attorney-General for Ontario, 5 S.C.R. at p. 711, 3 Cart. at p. 83-4, (1881). 31 B.C. (Irving) at p. 224, (1882). 414 V.L.R. at p. 428, (1888). Australian |