British -it is given to look with an eye that pays no regard Prop. 1-2 to the inter-provincial divisions, rivalries, or distemperatures existing previous to Confederation, and which that great measure was intended to cure. No judgment here will be biassed either way by such considerations. We do not ask or care what negotiations took place before Confederation, but what was the effect,-where the terms of the contract itself are clear,-of the contract of union itself on British Columbia? . . . And that can only be gained Columbia. by a careful study of the British North America Act itself. It seems strange at this day to be entering into an explanation of such a principle, that negotiations are but the necessary preliminaries to a contract; or that there is no proposition in law more accepted than that the preliminaries to a contract, which in itself is so clear and complete, are at once merged in the written contract itself; but the marked reference of the Attorney-General during the argu-B.N.A. Act. ment to speeches of the great promoters of Confederation make it necessary. The Act itself, and the terms of Confederation which it embodies, form the contract, the effect of which we have stated." And later on in the same judgment, at p. 208, Crease, J., quotes the words of Lord Selborne in Regina v. Burah,1 where, after saying that the Indian legislature has powers expressly limited by the Act of the Imperial parliament which created it, and can do nothing beyond the limits which circumscribe those powers, his lordship adds :-" The established courts of justice, when a question arises whether the prescribed limits have been exceeded, must of Per Lord necessity determine that question; and the only way Burah. in which they can properly do so is by looking to the terms of the instrument by which, affirmatively, 13 App. Cas. at p. 904, 3 Cart. at p. 428, (1878). Looks solely to Analogy from law of contract. Selborne in Courts of regard only terms of Constitution Prop. 1-2 the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it Justice can violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial parliament at variance with it), it is not for any court of justice to enquire further, or to enlarge constructively those conditions and restrictions." “Lord Selborne," observes Crease, J., "does not say you must enquire into all the previous negotiations which led up to its enactment, or that we must look to a previous compact and give our legal interpretation to the Act by the light of that." Cannot enlarge them construct. ively. Property and civil rights in the province. And before concluding this article we may notice that in the Queen v. The Mayor, etc., of Fredericton Fisher, J.,1 endeavours, in view of the history of the Union, and the way it was brought about, to import a sort of special significance to the provision in No. 13 of section 92 of the British North America Act, whereby jurisdiction over property and civil rights in the province is assigned to provincial legislatures. He is there discussing whether the 99th section of the Canada Temperance Act, 1878, trenches upon property and civil rights more than is necessary for the regulation of trade in intoxicating liquors, and says:-"Notwithstanding that all the exclusive powers of the parliament and local legislature are co-equal in their energy and authority, I have ever considered the power to deal with property and civil rights the least liable to assault, significance and the power of all others to be most sacredly guarded and maintained; property and civil rights No. 13, Special attributed to it by Fisher, J. 13 P. & B. at pp. 169-170, (1879). of the Union would appear to cover the whole field of enquiry Prop. 1-2 and legislation in the parliament, and the local legislature, the great bulwark around which clusters the interests and liberties of every individual within the limits of the Confederacy. Referring to the history of the Union of the confederated provinces and to their peculiar condition previous thereto, we know that while each province evinced a justifiable The history jealousy on this subject and a determination to reserve to the local legislature the exclusive right to deal with it, one province made it a condition upon which alone it would enter the Union, that its local legislature should exercise this power. To provide for this entire control, the English language was put into requisition to select terms or phrases which should then and in all coming time secure that object by defining the authority in the largest sense. This subject, the dealing with this power, the security it was designed to provide for in the different provinces, was the primary question to be solved before any terms of Union could be agreed upon. Other objects of importance were discussed and disposed of as incidental to the new state of things the Union would call into existence; but an inability to agree upon the question of property and civil rights would have rendered every effort for Essential Union abortive. Upon this branch of the enquiry condition of I should feel it my duty in construing this or any other Act, if I had any doubt as to its interfering," (sc., unnecessarily), "with property and civil rights, to give the benefit of that doubt to that authority, and for the reason I have stated." the Union. There does not, however, appear to be in the Sed quære. British North America Act itself, or in the decisions generally, anything to support the view that the provision in section 92 as to property and civil rights The B.N.A... 2 Prop. 1-2 has any greater sanctity or stands in any different position than that of any of the other provisions in sections 91 and 92 conferring legislative powers; though at the same time it may be true that, as is intimated in Citizens' Insurance Co. v. Parsons1 and in Re Windsor & Annapolis R.W. Co., the words property and civil rights" are to be understood in interpreted. their largest sense. In fact, as stated by Tessier, J., in Bank of Toronto v. Lambe3 :-"The Confederation Act was passed with the object of consolidating (concilier) the interests and rights of the pre-existing provinces; that Act should be liberally interpreted. It is but a federal alliance in which each province has been constituted with a regular government." 4 be liberally 17 App. Cas. at p. III, I Cart. at p. 276, (1881). 24 R. & G. at p. 321, 3 Cart. at p. 398, (1883). 3M.L. R. 1 Q.B. at p. 166, (1885), sub nom. 'North British and Mercantile, etc., Ins. Co. v. Lambe.' And see Proposition 3 and notes thereto. 4As to the theory of the continuance of the old provincial, or rather colonial constitution in Canada, see also the notes to Proposition 4, infra, esp. at p. 64, seq. PROPOSITION 3. 3. Courts of law must treat the provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes [of a similar character, that is to say, statutes conferring constitutional charters]. The British North America Act cannot be construed in a rigidly technical manner. Council. The opening words of the above Proposition, that is to say, "Courts of law must treat the The Privy provisions of the British North America Act by the same methods of construction and exposition which they apply to other statutes," are taken from the judgment of the Privy Council in The Bank of Toronto v. Lambe1, and it is well to notice the connection in which the words were used. They come at the very commencement of the judgment, which begins as follows:-"These appeals raise one of the many difficult questions which come up for judicial decision under those provisions of the British North America Act, 1867, which apportion legislative powers between the parliament of the Dominion and the legislatures of the provinces. It is undoubtedly a case of great constitutional importance, as the appellant's counsel have earnestly 112 App. Cas. at p. 579, 4 Cart. at p. 12, (1887). |