Prop. 1-2 of self-government has been imparted to the colony, we must search for it in the statute law, and collect and consolidate it as best we may. Nobody can have studied the development of selfgovernment in the Australian colonies without having observed the tentative and cautious manner in which British statesmen have proceeded in their arduous task. The impulse which has warmed them into action has always been supplied from the colonies themselves. But we must not forget this, that it is the parliament of the United Kingdom, guided by the statesmen of the mother country, that has granted to this colony the whole measure of self-government which it possesses. It was the parliament of the United Kingdom which authorized Her Majesty to give the royal assent to the Constitution Act, and it is the intention of the parliament of the United Kingdom, as disclosed in the Constitution Act of which it approved, that we must set ourselves to discover." Must discover the intent of the Imperial parliament. Opposing dicta. There are, however, dicta which may seem opposed to the views expressed in the leading Propositions. Thus in Bank of Toronto v. Lambe,1 Per Jette, J. Jette, J., says :—“ To reach a sound interpretation of our Constitution we must here, (sc., in considering the British North America Act), as in the interpresider tation of our ordinary contracts, seek, above all, the provincial meaning which must have been intended by the delegates. Must con intention of Per representatives of the confederated provinces." And 2 1M.L. R. I S.C. at p. 41, 4 Cart. at p. 97, (1884), sub nom. The North British and Mercantile Fire and Life Ins. Co. v. Lambe.' See p. 4, supra. 23 S.C. R. at p. 548, 2 Cart. at p. 44, (1880). And position before Con saying: "In order properly to construe the British Prop. 1-2 North America Act, it is necessary and proper to consider the position of the united provinces before of provinces the Union. Each had what may be properly called federation. plenary powers of legislation in respect to provincial subjects. In the agreement for the Union provision was made for the general powers of Parliament and the local legislatures, as well as for the 'ways and means' by which each was to be sustained. It was by a surrender of the local legislative power, to the extent agreed upon, that the powers of Parliament were agreed to be given. It was in the nature of a solemn compact, to be inviolably kept, that the compact. rights and prerogatives of both were adopted, and the agreements entered into were intended to be carried out by the Act mentioned. That that compact cannot be changed by one, any more than another of the contracting parties, is a proposition. embodied in despatches from the Imperial government, and one which I think cannot be gainsaid. It is, therefore, only permissible to construe the Act in conformity with that consideration." The Act a And a contract. In like manner, in Molson v. Chapleau, 1Papineau, J., observes :-"The terms themselves of the preamble of the Act demonstrate that, if there is a union, it is a federal union: Whereas the provinces of Canada, Nova Scotia, and New Bruns- solemn wick, have expressed their desire to be federally united, etc.,' her Majesty and her Parliament have passed the Act of 1867 to carry out this desire. The provinces also have granted to the Dominion a large part of the powers which belonged to them at the moment of union. But they have kept some. powers which belong to them, to the exclusion of 16 L.N. at p. 224, 3 Cart. at p. 367, (1883). Cf. Belanger v. Caron, 5 Q.L.R. at p. 21, (1879). Prop. 1-2 the Dominion which they have wished to form, and for which they have expressed the desire to contract their union. The Imperial parliament only acts to give effect to the contract, the conditions of which were settled in conferences of the provincial deleinterpreted gates. The Imperial Act is only the solemn contract accordingly. establishing the articles agreed to by the provinces in the conferences which preceded the confederation. It ought then to be interpreted without losing sight of this historical fact." Must be So per Spragge, C.J. And again in Regina v. Frawley1 Spragge, C.J., referring to No. 15 of section 92, whereby provincial legislatures can make laws in relation to the imposition of punishment by fine, penalty, or imprisonment, for enforcing any law of the province, etc., and after stating that in order to the enforcing of by-laws of municipal corporations, imprisonment with hard labour was one of the means authorized by the law of Upper Canada before Confederation, says:"The Act," (sc., the British North America Act), "as has been often said, was the fruit of a compact. Is it reasonable to read the Act as if intended to fetter the provincial legislatures in their discretion as to the kind of imprisonment which they should judge to be reasonable and proper for an infraction of their laws, even to abridge the power in matters of police regulation-matters peculiarly within their province-which they already possessed? . . It is safe to say that the word 'imprisonment' could not have been received in that sense by the parties chiefly interested in the compact,-the provinces." This mode of reasoning may be permissible, but, if our second leading proposition expresses the correct view of the matter and the British North America Act 17 O.A. R. at p. 267, 2 Cart. at p. 585, (1882). ante-Con constitutions abrogated. Peters, J. support in B.N.A. Act. is to be regarded as a new departure, it can scarcely Prop. 1-2 be correct to say, as Peters, J., does in Kelly v. Sulivan:-"This Island had a constitution similar to that of the other British North American View that provinces when it entered the confederacy. . . . federation The British North America Act of 1867 does not not abrogate these provincial constitutions, but merely withdraws from them the power of making laws regarding certain matters, enumerated in the 91st Per section, over which they previously had jurisdiction. But as to all matters not so withdrawn, the provinces remain in possession of their old dominion,' and retain their jurisdiction over them Has some in the same plight as it previously existed;" al- sec. 64 of though section 64 of the British North America Act, which provides that the executive authority of Nova Scotia and New Brunswick shall continue as at the Union until altered under the authority of the Act, may seem to lend some countenance to the theory of the continuance of the ante-Confederation constitutions. The argument in favour of the view thus expressed by Peters, J., will be found elaborated by Mr. Justice Loranger in his "Letters upon the Loranger, J. Interpretation of the Federal Constitution," already Letters on referred to. At p. 14 he says:-"The constitution Federal Conof the provinces of Upper and Lower Canada had come to them by the Constitutional Act of 1791, which was not repealed by the Union Act of 1840, but simply modified to make it harmonize with the new system. It is therefore to the Constitutional Act of 1791 that we must look for the origin and 1840. of the powers of these legislatures which were 12 P.E.I., at pp. 91-2, (1875). For documents relating to the early constitution of the maritime provinces, see Can. Sess. Pap. 1883, No. 70. See, also, Clement's Canadian Constitution, p. 25, seq. 2See the notes to Propositions 26 and 66. SP. 18, seq. Per stitution. Acts of 1791 Prop. 1-2 in force at the time of Confederation." Provinces retained constitu modified. Part of these powers, he contends, (p. 62), "they" (sc., the provinces) "ceded to the Federal parliament to exercise them in their common interest and for their former purposes of general utility, keeping the rest, which tions, though they left to be exercised by their legislatures, acting in their provincial sphere, according to their former constitutions, under certain modifications of form, established by the federal compact." But see Proposition 66 and the notes thereto. Moreover, the Union Act of 1840 does (Imp. 3-4 Vict., c. 35, sec. 2) repeal so much of the Act of 1791 "as provides for constituting and composing a legislative council and assembly, and for the making of laws." Prop. 66. Mr. Loranger, J. Mr. Bourinot, however, seems to favour the same agrees with view. He follows the passage already quoted from his article on Federal government in Canada,1 by saying:-" The weight of authority appears to rest with those who have always contended that on entering into the Federal compact, the provinces never intended to renounce their separate and distinct existence as provinces when they became part of Confederation." And he refers with approval to the argument of Mr. Edward Blake in St. Catharines Milling and Lumber Co. v. The Queen, from which an extract in point will be found contained in the latter part of the notes to Proposition 64, infra. But we find a useful warning against attaching too much importance in construing the British North America Act to the state of things before Confederation J., contra.' in the words of Crease, J., in the Thrasher Case": "To us in British Columbia,-penitus toto orbe divisos, Per Crease, 19 C. L. T. at p. 220. See supra p. 10, n. I. 21 B.C. (Irving) at p. 195, (1882). |