made of their own body and blood, all of the powers they formerly possessed save certain which they reserved for themselves, the reservations being alike in the case of each province. But whatever powers they did not surrender to the Dominion they kept to themselves, and kept unimpaired, and no province abandoned in favour of any other province, still less in favour of any foreign country, any right or power which it formerly possessed.

Sections 91 and 92 do not purport to define what Canada or the provinces may do, or may not do, as a charter granted to a newly created corporation would define its powers; their purpose is not to create new powers or to restrict old ones; their sole function is to distribute between the Dominion and the provinces powers possessed prior to Confederation by the several provinces, and assumed to be known, and in no need of definition. The very first words of the Act shew that its object is to carry into effect the desire of the constituent provinces, which is the historical fact.

Take as an example the Nova Scotia case cited. Prior to Confederation Nova Scotia may or may not have had power to tax a resident with respect to his . property situate in Ontario or in New York. It may or may not have had power to tax movable property within its reach in Nova Scotia belonging to a resident of Ontario or of New York, but any powers which it then possessed, and which were not surrendered to the Dominion by the B. N. A. Act, these it may still exercise. Before 1867 had succession duty Acts been in force, Courts might have had to decide such questions, but they would have had to make their decisions without the help of the B. N. A. Act.

The point is that if it be admitted that the levying of succession duties, whether nominally on persons or on property, be not a matter surrendered to the Dominion (and none of the cases makes any such claim), then those same questions should still be answered

without reference to sections 91 and 92 of the B. N. A. Act, the simple reason being that the sections have to do with relations between the Dominion and the provinces, and with nothing else. If they do not give the power to levy succession duties to the Dominion of Canada, then the provinces still possess that power, and possess it in no way curtailed.1

Criticism such as is offered here is no doubt idle if the words of sections 91 and 92 accurately express limitations existing prior to Confederation. But do they?

The Act of 1840 uniting Ontario and Quebec, reads as follows: "Within the Province of Canada Her Majesty shall have power by and with the advice and consent of the said Legislative Council and Assembly to make laws for the peace, welfare and good government of the Province of Canada," not repugnant to any Act of the British Parliament. What does this mean, if not that, subject to the reserved veto, all powers of enacting legislation affecting persons and property in the Province of Canada then possessed by the British Parliament were surrendered to the newly created Legislature, to be thereafter exercised in Quebec instead of in England, save only in so far as the British Parliament might see fit to interfere by statute?

In this connection it would be well to bear in mind the words of Lord Watson in the Liquidators' case (1892), 61 L. J. P. C. 77: "In so far as regards those

1 It may be suggested that the words "in the Province," "Provincial," in the various sub-sections of 92 were inserted for the purpose of protecting the provinces against encroachment by one on the other, but it would be going a long way to draw such an inference when regard is had to the title "Distribution of Legislative Powers," and to the way in which the words quoted are used.

A reasonable interpretation of the words "taxation within the province," might be "taxation" (be it directed against persons or against property) "operative” (“or that can be made effective ") "within the province;" to treat them as simply emphasising the idea that the direct taxation reserved to a province is that which it has power to enforce within its own borders, but that direct taxation affecting the country as a whole remains with the Dominion; as indicating that no restriction was intended on 91-3, save with regard. to matters of a purely provincial interest.

matters which by section 92 are specially reserved for provincial legislation, the legislation of each prov ince continues to be free from the control of the Dominion, and as supreme as it was before the passing of the Act."

If then it be true (and no other view is consistent with Canada's claim to be a self-governing nation), that the wording of section 92 has no bearing on the powers of the provinces, except when a conflicting claim is made on behalf of the Dominion, is it not time to recognize that in testing the right of a province to pass a law, some such questions as the following should be asked:

1. Has the power claimed been surrendered to the Dominion?

2. Is the legislation repugnant to any statute of the British Parliament?

3. Is it a law for the peace, welfare, and good government of the province?

And that if the first be answered in the negative, further reference to section 92 is wholly irrelevant.

If within their several spheres the powers of Parliament and the powers of the legislatures are exactly similar in extent, it would seem to follow as a logical sequence that the test for the provinces should be exactly the same as the test for the Dominion.

As might be expected, the cases in which effort has been made to limit the powers of Parliament in matters admittedly not within the jurisdiction of the legislatures are much fewer in number (this may be because in section 91 there are no such words to rely upon as the words "in the province" of section 92), and consequently if any limitation is to be declared some other reason must be found.

Attempts have been made, but so far no decisions. have been rendered which would make it necessary to transfer the fight for the fullest recognition of Canada's status from the Courts to the British Parliament.

In Atty.-General of Canada v. Cain, 75 L. J. P. C. 81 (1906), in which the Privy Council said, quoting from an earlier case, that a Colonial Legislature has within the limits prescribed by the statute which created it "authority as plenary and as ample as the Imperial Parliament in the plenitude of its power possessed and could bestow," the right of Parliament to pass legislation open to the charge of being extraterritorial, though not repugnant to any British statute, was seriously questioned, and similar objection was raised in the Bigamy Case, 27 S. C. R. 461. In both cases the legislation was upheld, but not on the broad ground that inasmuch as Great Britain had conceded to Canada full power to govern herslf, the Court was limited to deciding whether the proper body to exercise that power was the Dominion Parliament or the Provincial Legislature. It is true that the reasons of Mr. Justice Gwynne, p. 479, go the whole way, but in the Cain Case (p. 82, reference to McLeod v. Atty.-Genl. of New South Wales), and in the Bonanza Co. Case (1916), 26 D. L. R., p. 284, expressions are used inconsistent with the stand taken by him.

If the powers possessed by the Dominion are powers surrendered by the provinces then, so far at least as Ontario and Quebec are concerned, they are the powers possessed by Ontario and Quebec granted, not by the B. N. A. Act, but by the Union Act, namely, to "make laws for the peace, welfare and good government of the province.”

The judgments in the cases referred to may be right or wrong, but it is clear in the provincial cases that the judges who rendered them were largely, if not chiefly, influenced in their decisions by the view that even where no claim of the Dominion is involved, section 92 sets limits to the powers of the provinces.

If it be true as here contended that the definition of the powers possessed by the provinces prior to Confederation is to be found in the Act of 1840, and not in the Act of 1867; and if it be also true that the later

Act is, as regards provincial powers of legislation, much narrower in its terms, then enough has been said to shew that reference to the B. N. A. Act, save only when conflicting claim is made for the Dominion, is a dangerous practice, and should be discredited. Such reference not only denies to the provinces rights. they never gave up, it also tends to forge a chain restricting Canada's freedom of action as a nation, for, to repeat what has already been said, it must not be forgotten that many things which Canada, as a selfgoverning country should have power to do, can be done only through the Provincial Legislatures.

Canadians who subscribe to the views set forth in the opening paragraph of this article should see to it that a power which Canada has successfully claimed in the political field is not defeated by judicial pronouncements, and should require our Governments consistently and continuously to oppose all attempts of Courts to set limits to Canada's power to enact, and within her own borders enforce as best she can, such legislation as seems good to her, and should on every possible occasion strive for the upholding of the position taken by Mr. Justice Gwynne in the Bigamy Case.

To sum up, it is submitted:

That the B. N. A. Act is in substance and reality not a concession by Great Britain to Canada, but the sanction of an agreement by which the provinces surrendered to the Dominion some of the powers previously possessed by them, and that the powers surrendered were not lessened in the transfer, and from those not surrendered nothing was taken away.

That so far at least as Ontario and Quebec are concerned the powers they possessed were powers "to make laws for the peace, welfare and good government" of these provinces not repugnant to British statutory enactments.

That the meaning and intent of these words was to grant power in all respects similar to that possessed