A MAN'UAL 
 
 OF THE 
 
 CONSTITUTIONAL HISTORY 
 
 OF CANADA 
 
 FROM THE EARLIEST PERIOD TO THE YEAR 1888 
 
 INCLUDING THE BRITISH NoRTH AMERICA AcT, 1867, AND A DiGEST 
 
 OF Judicial Decisions on Questions op 
 Legislative Jurisdiction. 
 
 BY 
 
 JOHN GEOKGE BOUEmOT. LL.D., F.R.S. Can., 
 
 Clerk of the House of Commons of Canada, 
 
 Author or Parliamentary Practick and Procedure in Canada, 
 Local Government in Canada, Etc. 
 
 MOXTEEAL: 
 DAWSON BROTHERS, PUBLISHERS. 
 
 1888. 
 

 l2t I) p I n 6 r^ J 
 
 Entered according to Act of Parliament of Canada^ in 
 the year 2888, by Dawson BROTHERS, in the Office of the 
 Minister of Agriculture. 
 
 J 
 
To His Excellency the Most Noblb 
 
 THE MARQUESS OFLANSDOWJsE, G.C.M.G. 
 
 THIS LITTLE VOLUME IS RESPECTFULLY INSCRIBED BY 
 
 THE AUTHOE 
 
 IN TOKEN OF HIGH ESTEEM FOR A CONSTITUTIONAL GOVERNOR 
 
 WHO HAS WON GOLDEN OPINIONS DURING THE 
 
 ADMINISTRATION OF HIS HIGH OFFICB 
 
 IN CANADA. 
 
PEEFATOEY NOTE. 
 
 This trea+ise is in a large measure a revised republica- 
 tion of certain chapters of the author's large book on 
 Parliamentary Practice and Procedure in Canada. Those 
 parts of the work have been recently placed on the list 
 of books required Tor the study of Political Science in 
 the Univerfaity of Toronto ; and it has therefore been 
 thought desirable to publish a separate volume, with such 
 additions and alterations as will make the sketch of the 
 Canadian Constitution, as it appeared originally, com- 
 plete down to the present time. The author has much 
 hope that the publication of this little work in a cheap 
 and convenient form will be of some assistance to all 
 those persons who wish to study the general character 
 of the constitutional system of the Dominion, whose 
 institutions are now attracting considerable attention in 
 other countries. 
 
 HOTJSE OF COIVTMONS, 
 
 12th April 1888. 
 
CONTENTSL 
 
 CHAPTER I. 
 
 CANADA UNDER THE FRENCH REGIME. 
 
 Nature of first Government, pp. 1-3— Constitution of Supreme, 
 afterwards Superior, Council, pp. 3-4— No semblance of Muni- 
 cipal Government, pp. 4-5— Feudal Tenure, p. 5— Whole 
 System of Administration centred in the King, p. 6. 
 
 CHAPTER II. 
 
 GOVERNMENT FROM 1760 TO 1774. 
 
 Terms of Capitulation in P60, p. 7— Treaty of Paris, pp. 7-8— 
 Military Government ior Three Years, p. 8— Proclamation 
 of 1763, establishing- System of Government in Quebec, 
 pp. 8-10. No Assemblies called, p. 10— Unsettled State of 
 the Country, pp. 10-11— Uncertainty as to Laws in Force, 
 p. 11. 
 
 CHAPTER III. 
 
 QUEBEC ACT, 1774. 
 
 Intervention of Parliament in Canadian Affairs; Charter of 
 Government granted, p. 12 — Opposition to the Quebec 
 Act in the Province, p. 13— Details of the New Consti- 
 tution, p. 14— Legislative Council Established, pp. 14-15— 
 
VIII ^0^'TENTS. 
 
 Inauguration of the New Constitution, p, 16-— Formation of a 
 Privy Council, p. 16, 
 
 CHAPTER IV. 
 
 CONSTITUTIONAL ACT, 1791. 
 
 Two Provinces Established, p. 17 — Immigration of United 
 E.npire Loyalists, pp. 17-18— Legislative Institutions in Upper 
 and Lower Canada, pp- 19-23 — Meeting of the Legislature of 
 Lower Canada at Quebec, 17th December, 1792, p. 24 — of 
 Legislature of Upper Canada at Newark, 17cli September, 
 1792, p. 24 — A New Constitutional System intended as a 
 Transcript of the British Constitution, p. 25 — Description 
 of Ceremonial at first Opening of Legislature in Upper 
 Canada, p. 25. Political Difficulties, p. 25 — Dispute between 
 Executive and Assemblies with respect to Control of Supplies 
 and Civil List, p. 26 — Frequent Dissolutions of Quebec Legis- 
 lature, p. 26 — Political State of Provinces described, pp. 27-28 
 — Kebellion of 1837-8, p. 28— Suspension of the Quebec 
 Constitution, p. 29 — Arrival of Lord Durham as Governor- 
 General and High Commissioner, p. 30 — His Ordinance of 
 28th June, 1838, p 31. 
 
 CHAPTEPv V. 
 
 UNION ACT, 1840. 
 
 Lord Durham's elaborate Report on Political Difficulties, p. 32 — 
 Value of his Suggestions, pp. 32-33— Upper and Lower Canada 
 reunited, pp. 33-34 — Outline of the New Constitution, pp. 35- 
 36 — Commencement of new Era, p. 36 — Responsible Govern- 
 ment, pp. 37-38 — Arrival of Lord Elgin, p. 39 — Importance of 
 Legislation from 1841-1867, p. 40 — Municipal System, p. 40 — 
 Settlement of Clergy Reserves, pp. 41-42 — Abolition of Seig- 
 niorial Tennre, p. 43 — Civil Service, pp. 43-44 — Complete 
 Control over Civil List and Provincial Revenues, 45 — Freedom 
 of Trade, pp. 46-47 — Use of French Language in Records, etc, 
 p. 47 — Elective Legislative Council, pp. 47-48. 
 
CONTENTS. IX 
 
 CHAPTER VI. 
 
 FEDERAL UNION OF THE PROVINCES. 
 
 Political Difficulties, p. 49— Representation by Population, p. 
 50_Double Majority Theory, p. 51— Political Deadlock, p. 52 
 —Understanding betweeu Political Leaders, p. 53— Federal 
 Union, pp. 53-54— Adoption of Seventy -Two Resolutions as 
 Basis of Federal Union, pp. 54-55-Legi8lature of Canada 
 pass Address to Queen, p. 55-Delay in the Maritime 
 Provinces, pp. 55-56— New Constitution finally Adopted, p. 
 5C-Passage of Act of Union (B. N. A. Act, 1867) by Imperial 
 Parliament, pp. 56-57-Meeting of first Parliament of the 
 Dominion, p. 57-Acquisition of the North-West, p 58- Insur- 
 rection in Red River, p. 59-Estabhshment of Province of 
 Manitoba; Meeting of first Legislature; Representatives 
 take Seats in Parliament, p. 59— Admission of British Colum- 
 bia, p. 60-of Prince Edward Island, pp. 60-61-Newfound- 
 land declines to enter Confederation, p. 61— Imperial 
 Order-in-Council placing all British North America except 
 Newfoundland under control of Canada, pp. 61-62. 
 
 CHAPTER VIL. 
 
 CONSTITUTION OF THE GENERAL GOVERNMENT. 
 
 Wide Extent of the Dominion, p. 63-Executive Government, p. 
 64— Office of Governor-General, pp. 64-5-Advised by a Privy 
 Council, p. 68— Its Character and Functions, pp. 68-70— 
 Formation of first Ministry of the Dominion, p. 71— Func 
 tions of Ministers, pp. 71-72-Organization of Public Depart- 
 ments, pp. 72-74. 
 
 CHAPTER VIIL 
 
 CONSTITUTION OF PARLIAMENT. 
 
 Governor-General opens and prorogues Parliament; assents to 
 or reserves Bills, p. 75-dissolves Parliament, pp. 76-77- 
 General Features of the Senate or Upper House, pp. 77-81— of 
 
X CONTENTS. 
 
 the House of Commons, pp. 81-82 — Duration of Parliament, 
 pp. 82-83 — Representation, pp, 83-85 — The Franchise, pp. 86-87 
 — Control over Revenues and Duties, p. 88. 
 
 CHAPTER IX. 
 
 CONSTITUTION OF THE PROVINCIAL GOVERNMENTS AND ORGANIZATION 
 
 OF THE NORTH-WEST TERRITORIES. 
 
 Control of Greneral Government over Provinces, p. 90 — Lieuten- 
 ant-Governor appointed and removed by the Governor- 
 General in Council, p. 90 — His Duties and Responsibilities, 
 pp. 91-92 — Represents the Queen in the performance of certain 
 Executive Acts, p. 93 — Constitution of Local Legislature of 
 Ontario, pp. 93-94 — of Quebec, pp. 94-96— of Nova Scotia, pp. 
 96-97 — of New Brunswick, pp. 98, 99— of Prince Edward 
 Island, pp. 99, 100 — of Manitoba, p. 101 — of British Colum- 
 bia, pp. 101, 102 — Government of the North-West Territory, 
 pp. 103, 104 — Creation of Provincial District of Keewatin, 
 p. 104 — Imperial Legislation to remove doubts as to the 
 power of Canadi^.n Parliament to legislate with respect to 
 new Provinces in the Territories, etc., pp. 105, 106 — Local 
 Legislatures may amend Local Constitutions, except as re- 
 gards the Office of Lieutenant-Governor, p. 106. 
 
 CHAPTER X. 
 
 DISALLOWANCE OF PROVINCIAL ACTS. 
 
 Power of disallowance, pp. 108-110 — Disallowance of Streams 
 Act of Ontario Legislature, pp. 110-112— Of Act of Manitoba 
 legislature incorporating Winnipeg South-Eastem Railway 
 Company, pp. 112, 113— Powers and Responsibilities of Dom- 
 inion Government in this respect, pp. 113, 114. 
 
 CHAPTER XL 
 
 DISTRIBUTION OF LEGISLATIVE POWERS. 
 
 Object of the Framers of the Constitution, pp. 115, 116— Powers 
 
CONTENTS. XI 
 
 of the General Government, p. 116— Of the Provincial Gov- 
 ernments, p. 117— Exclusive powers of Legislatures respecting 
 Education, p. 117— Concurrent powers of Parliament and 
 Legislatures as to Immigration and Agriculture, pp. 117, 118 — 
 Difficulties as to Jurisdiction, p. 119. 
 
 CHAPTER XXL 
 
 TDiaAL DECISIONS ON QUESTIONS OF LEGISLATIVB JUBISDICTION. 
 
 On the Dominion Controverted Elections Act, pp. 121-123 — On 
 Insurance, pp. 123-128— On Acts respecting Temporalities 
 Fund of the Presbyterian Church, pp. 128-130— On Ontario Act 
 respecting Sale of Fermented or Spirituous Liquors, pp. 130, 131 
 — On Fishery Leases and Licenses, pp. 132-134. 
 
 CHAPTER XIIL 
 
 JUDiaAL DECISIONS— CONTINTTED. 
 
 On Canada Temperance Act, pp. 135-139— On Liquor License 
 Acts of Ontario and of the Dominion, pp. 139-146— On Escheats, 
 pp. 147-151. On Indian Titles to Lands {Re St. Catharine's 
 Milling and Lumber Co.), pp- 151-155— Judicial Committee 
 of the Privy Council on Quebec Tax imposed on Banks 
 and other Corporations, pp. 155, 156— Boundary Award, pp. 
 156-158. 
 
 CHAPTER XIV. 
 
 BULBS OP CONSTRUCTION AND CONSTITUTIONAL PRINCIPLBS EVOLVED 
 
 FROM JUDICIAL DECISIONS. 
 
 Rules laid down by the Judicial Committee of the Privy Coun- 
 cil of England, for the Construction and Interpretation of pro- 
 visions of B.N.A. Act relating to distribution of Legislative 
 Powers, pp. 159-163— Constitutional Principles deduced from 
 the decisions of High Judicial Authorities, and from the 
 operation of the fundamental Law, pp. 163 et seg. 
 
XII CONTENTS. 
 
 CHAPTER XV. 
 
 POSITION OF THE JUDICIAEY. 
 
 Laws in force in Canada, pp. 170, 171— Appointment of Judges; 
 their Tenure of Office, pp. 171, 172--How impeached, pp. 
 172, 173. 
 
 APPENDIX. 
 
 British North America Act, 1867, p. 179— British;North America 
 Act, 1871, p. 228— Parliament of Canada Act, 1875, p. 231. 
 
CHAPTEE I. 
 
 CANADA UNDER THE FRENCH R^QIME, 
 
 The history of parliamentary institutions in Canada 
 commences towards the close of the eighteenth century. 
 Whilst the country remained in possession of France, the 
 inhabitants were never represented in legislative assem- 
 blies, and never exercised any control over their purely 
 local aifalrs by frequent town meetings. In this respect 
 they occupied a position very diiferent from that of the 
 English colonists in America. The conspicuous features 
 of the New England system of government were the 
 extent of popular power and the almost entire indepen- 
 dence of the parent state in matters of provincial interest 
 and importance. All the freemen were accustomed to 
 assemble regularly in township meetings, and take part 
 in the debates and proceedings. The town, in fact, was 
 "the political unit," and was accordingly represented in 
 the legislature of the colony. Legislative assemblies,^ 
 
 * Story on the Constitution of the United States (4th ed. 
 Cooley), p.p. 113, 114, 193 n.; Bourinot's Local Government in 
 Canada, in Johns Hopkins University Studies in Historical and 
 Political Science. Baltimore, 1887. 
 
2 CONSTITUTIONAL HISTORY. 
 
 indeed, were the rule in all the old colonies of England 
 on this continent — even in proprietary governments like 
 that of Maryland. On the other hand, in the French 
 colony, a legislative system was never enjoyed by the 
 inhabitants. The first government which was established 
 by Samnel Champlain, the founder of Quebec, was in- 
 vested with largo authority.^ For over half a century, 
 whilst the country was practically under the control of 
 trading corporations, the governor exercised all the 
 powers of civil and military government, necessary for 
 the security and peace of the colony. Though he had 
 the assistance of a council, he was under no obligation 
 whatever to follow its advice, on all occasions. After 
 some years' experience of a system of government which 
 made the early governors almost absolute, Colbert effected 
 an entire change in the administration of colonial affairs. 
 From 1663, the government of Canada was brought more 
 directly under the control of the king, and made more 
 conformable to the requirements of a larger population. 
 But in all essential features the government resembled 
 that of a French province. The governor and intendant 
 were at the head of affairs and reported directly to the 
 king.^ Of these two high functionaries, the governor 
 
 1 Garneau I., 87 (Bell's Translation). The " Instructions " in 
 the early commissions ordered: "And according as affairs 
 occur, you shall, in person, with the advice of prudent and 
 capable persons, prescribe— subject to our good pleasure— all 
 laws, statutes and ordinances ; in so far as they may conform 
 to our own, in regard to such things and concernments as are 
 not provided for by these presents." 
 
 2 The governor was styled in his commission, *' Gpuverneur et 
 Lieutenant-General en Canada, Acadie, Isle de Terre Neuve, et 
 
THE FRENCH REGIME. 3 
 
 was the superior in position ; he commanded the troops, 
 made treaties with the Indians, and took precedence on 
 all occasions of state. The intendant came next to him 
 in rank, and, by virtue of his large powers, exercised 
 great influence in the colony. He presided at the council, 
 and had control of all expenditures of public money. His 
 commission also empowered him to exercise judicial func- 
 tions, and in certain cases to issue ordinances having the 
 force of law whenever it might be necessary.* 
 
 When the king reorganized the government of Canada, 
 in the month of April 1663, he decreed the establishment 
 of a supreme council at Quebec.^ This body, afterwards 
 called the superior council, consisted of the governor, the 
 bishop, the intendant and five councillors, subsequently 
 increased to seven,^ and eventually to twelve.^ This 
 council exercised legislative, executive and judicial 
 powers. It issued decrees for the civil, commercial, and 
 
 autres pays de la France Septentrionale ;" and the intendant, 
 " Intendant de la Justice, Police et Finances en Canada," etc. 
 Doutre et Lareau, Histoire du Droit Canadien I., 130. 
 
 * See Commissions of Intendants in Edits et Ordonnances^ III. 
 ^ Edit de criation du conseil souverain de QuebeCf lb I. 37. 
 
 ^ In 1675, when the king confirmed the decree of 1663 (I. lb. 
 83), and revoked the charter of the West India Co., to which 
 exclusive trading privileges had been conceded in 1664. Doutre 
 et LareaUj Histoire du Droit Canadian I., 118, 184. 
 
 * In 1703. The councillors were rarely changed, and usually 
 held office for life. They were eventually chosen by tlie king 
 from the inhabitants of the colony on the recommendation of 
 the governor and intendant. The West India Co. made 
 nominations for some years. The first council, after the edict 
 of 1663, was selected by tlie governor and bishop, but practically 
 by the latter, Monseigneur Laval. Parkman, pp. 135-6. 
 
4 - - CONSTITUTIONAL HISTOEY. 
 
 financial government of the colony, and gave judgment 
 in civil and criminal causes according to the royal ordi- 
 nances and the coutume de Paris, besides exercising the 
 function of registration borrowed from the Parliament 
 of Paris. An attorney-general sat in the council, which 
 was also empowered to establish subordinate courts 
 throughout the colony. From the decisions of the inten- 
 dant or the council there was no appeal except to the 
 king in his council of state. Local governors were 
 appointed at Montreal and Three Eivers, but their 
 authority was very limited j for they were forbidden to 
 fine or imprison any person without obtaining the neces- 
 sary order from Quebec. Neither the seigneur nor the 
 habitant had practically any voice whatever in the gov- 
 ernment ; and the royal governor called out the militia 
 whenever he saw fit, and placed over it what officers he 
 pleased. Public meetings for any purpose were jealous- 
 ly restricted, even when it was necessary to make parish 
 or market regulations.^ Ko semblance of municipal 
 government was allowed in the town and village com- 
 munities. Provision had been made in the constitution 
 
 ^ II ne laisse pas d'etre do tres grande consequence de ne pas 
 laisser la liberty au peuple de dire son sentiment (Meule-s au 
 Ministre, 1685.) Even "meetings held by parishioners under the 
 eye of the cur^ to estimate the cc st of a new church seem to 
 have required a special license from the intendant." (Parkman, 
 ^ The Old Regime in Canada, p. 280.) ** Not merely was the Cana- 
 dian colonist allowed no voice in the government of his pro- 
 vince or the choice of his rulers, but he was not even per- 
 mitted to associate with his neighbour for the regulation of 
 those municipal afiairs which the central authority neglected 
 under the pretext of managing." Lord Durham's R., p. 10. 
 
THE FRENCH REGIME. 5 
 
 of 1663 for the election of certain municipal officers 
 called syndics, to note any infraction of public rights in 
 the large communities; but, after a few futile attempts 
 to elect such functionaries, the government threw every 
 obstacle in the way of anything like a municipal system, 
 and the people finally were left without any control 
 whatever over their most trivial local affairs.^ The very 
 social fabric itself rested on feudal principles modified to 
 suit the condition of things in a new country. The 
 habitant held his lands on a tenure which, however 
 favourable to settlement, was based on the acknowledg- 
 ment of his dependence on the seigneur. But at the 
 same time, the lord of the manor, and the settler on his 
 estate, were on an equal footing to all intents and pur- 
 poses as respects any real influence in the administration 
 of the public affairs of the colony. The very name of 
 Parliament had to the French colonist none of that sig- 
 nificance it had to the Englishman, whether living in the 
 parent state or in its dependencies. The word in French 
 was applied only to a body whose ordinary functions were 
 of a judicial character, and whose very decrees bore the 
 impress continually of royal dictation. In Canada, as in 
 France, absolutism and centralization were the princi- 
 
 ^ Doutre et Lareau, Histoire du Droit Canadian, 138. The 
 regulations of 1647 show that such officers existed in Quebec, 
 Montreal and Three Rivers, but they had ceased to be ap- 
 pointed by 1661, The first elections held in 1663 were allowed 
 to miscarry, and from that time forward, says Garneau, " There 
 wag no further question of free municipal government in Can- 
 ada, so long as French dominion endured, although a nominal 
 syndicate existed for a short time after that now under re- 
 view." Garneau I., 189-90. 
 
6 CONSTITUTIONAL HISTORY. 
 
 plea on which the government was conducted. The 
 king administered public affairs through the governor 
 and intendant, who reported " him as frequently as it 
 was possible in those times of slow communication be- 
 tween the parent state and tho coiOny.^ The country 
 prospered or languished, according as the king was able 
 or disposed to take any interest in its affairs ; but even 
 under the most favourable circumstances, it was im- 
 possible that Canada could make any decided political or 
 material progress with a system of government which 
 centralized all real authority several thousand miles 
 distant.^ 
 
 * " The whole system of administration centred in the king, 
 who, to borrow the formula of his edicts, * in the fullness of our 
 power and our certain knowledge,' was supposed to direct the 
 whole machine, from its highest functions to its pettiest inter- 
 vention, in private affairs." Parkman, Old Regime, pp. 285-6. 
 
 2 For accounts of system of government in Canada till the 
 Conquest, see Garneau I., book iii., chap. iii. Parkman's Old 
 Regime in Canada, chap. xvi. Reports of Attorney-General 
 Thurlow (1773), and Solicitor-General Wedderbume (1772), cited 
 by Christie, I., chap. ii. 
 
CHAPTEE II. 
 
 GOVERNMENT FROM 1760 TO 1T74. 
 
 Canada became a possession of Great Britain by the 
 terms of cai^tulation signed on the 8th of September, 
 1*760.^ By these terms Great Britain bound herself to 
 allow the French-Canadians the free exercise of their 
 religion^ ; and certain specified fraternities, and all com- 
 munities of rellgieuses were guaranteed the possession of 
 their goods, constitutions and privileges, but a similar 
 favour was denied to the Jesuits, Franciscans or Ee- 
 collets and Sulpicians, until the King should be consulted 
 on the subject. The same reservation was made with 
 respect to the parochial clergy's tithes. These terms 
 were all included in the Treaty of Paris, signed on the 
 10th of February, 1763, by which France ceded to Great 
 Britain, Canada, and all the Laurentian isles, except 
 
 1 Atty.-Gen. Thurlow j Christie's Hist., I., p. 48. Gameau, II., 
 
 70. 
 
 2 The words " as far as the laws of Great Bntam permit, 
 appear in art. IV. of the Treaty of Paris. Doutre et Lareau, I., 
 329. They are also found in the Instructions given in 1763 to 
 Governor Murray. lb. 560. 
 
8 CONSTITUTIONAL HISTORY. 
 
 St. Pierre and Miquelon, insignificant islands oif the 
 southern coast of Newfoundland, which were required 
 for the prosecution of the French fisheries. In this 
 treaty, Great Britain bound herself to allow the Cana- 
 dians the free exercise of their religion, but no reference 
 was made in the document to the laws that were to pre- 
 vail throughout the conquered country.^ 
 
 For three years after the conquest, the governmen\3 of 
 Canada was entrusted to military chiefs, stationed at 
 Quebec, Montreal and Three Eivers, the headquarters 
 of the three departments into which General Amherst 
 divided the country.'-^ Military councils were established 
 to administer law, though, as a rule, the people did not 
 resort to such tribunals, but settled their difficulties 
 among themselves. In 1^63, the King, George III., 
 issued a proclamation establishing four new govern- 
 ments, of which Quebec w^as one.^ Labrador, from St 
 John's Eiver to Hudson's Bay, Anticosti, and the Mag- 
 dalen Islands, were placed under the jurisdiction of 
 Newfoundland, and the islands of St. John (or Prince 
 Edward Island, as it was afterwards called), and Cape 
 Breton (He Eoyalo), with the smaller islands adjacent 
 thereto, were added to the government of Nova Scotia. 
 
 * Atty.-Gen. Thurlow ; Christie, I., p. 48. Miles, History of 
 Canada under French E^gime, app. xvi. See also note 2, p. 7. 
 
 '^ These three divisions corresponded to the old ones under the 
 French regime. General Murray was stationed at Quebec; 
 General Gage at Montreal ; Colonel Burton at Three Rivers. 
 Garneau, II., 82. 
 
 ^ The others were East Florida, West Florida, and Grenada. 
 The boundaries of the several governments are set forth in the 
 proclamation. 
 
FROM 1760 TO 1774. 9 
 
 Express power was given to the governors, in the let- 
 ters-patent by which these governments were constitut- 
 ed, to summon general assemblies, with the advice and 
 consent of His Majesty's Council, "in such manner and 
 form as was usual in those colonies and provinces which 
 were under the King's immediate government." Author- 
 ity was also given to the governors, with the consent of 
 the councils, and the representatives of the people, to 
 make laws, statutes and ordinances for the peace, welfare 
 and good government of the colonies in question. The 
 governors were also empowered to establish, with the 
 consent of the councils, courts of judicature and public 
 justice, for the hearing of civil and criminal causes, ac- 
 cording to law and equity, and, as near as may be, agree- 
 able to the laws of England, with the right of appeal in 
 all civil cases to the Privy Council.^ General Murray,' 
 who was appointed governor of Quebec on the 21st No- 
 vember, 1^63, was commanded to execute his office ac- 
 cording to his commission and accompanying instruc- 
 tions, or such other instructions as he should receive 
 under His Majesty's signet and sign manual, or by His 
 
 * ProclamatioR of 7th October, 1763. Atty.-Gen. Thurlow's 
 Report ; Christie, I., pp. 49-50. In the debates on the Quebec, 
 Bill, the vagueness of this proclamation was sharply criti- 
 cised, and no one appears to have been willing to assume the 
 responsibility of having framed it for the King. Atty.-Gen. 
 Thurlow acknowledged that '-it certainly gave no order what- 
 ever with respect to the constitution of Canada; it certainly was 
 not a finished composition, etc." Cavendish's Debates, p. 29. 
 
 2 Sir Jeflfery Amherst was in reality the first, and Gen. Mur- 
 ray the second, governor-general of Canada. Gameau, IL, 87 ; 
 supra p. 8. 
 
10 CONSTITUTIONAL HISTORY. 
 
 Majesty's Order-in-Council, and according to laws made 
 with the advice and consent of the council and asKcmbly 
 — the latter to be summoned as soon as the situation 
 and circumstances of the province should admit. The 
 persons duly elected by the majority of the freeholders 
 of the respective parishes and places were required, be- 
 fore taking their seats in the proposed assemblies, to 
 take the oaths of allegiance and supremacy, and the de- 
 claration against transubstantiation.* All laws, in con- 
 formity with the letters-patent, were to be transmitted 
 in three months to the King for disallowance or ap- 
 proval. The governor was to have a negative voice, and 
 the power of adjourning, proroguing and dissolving all 
 general assemblies.^ 
 
 No assembly, however, ever met, as the French-Cana- 
 dian population were unwilling to take the test oath,^ 
 and the government of the province was carried on 
 solely by the governor-general, with the assistance of an 
 executive council, composed in the first instance of the 
 two lieutenant-governors of Montreal and Three Elvers, 
 the chief justice, the surveyor general of customs, and 
 
 * The oaths of allegiance, supremacy, ana abjuration were 
 formerly required to be taken by every member in the English 
 Commons undt r various statutes. By 29 and 30 Vici, c. 19, 
 and 31 and 32 Vict., c. 72, a single oath was prescribed for 
 members of all religious denominations ; May, 205. 30 Car. II., 
 si 2, c. 1, required members of both houses to subscribe a de- 
 claration against transubstantiation, the adoration of the Vir- 
 gin, and the sacrifice of the mass. Taswell-Langmead, Const. 
 Hist, 447, 632. 
 
 2 Atty.-Gen. Thurlow, in Christie, I., pp. 50-1. 
 
 * It was convoked pro forma, but never assembled. Gameau, 
 II., 92, 108. 
 
FROM 17G0 TO 1774. 11 
 
 eight others chosen from the leading residents in tho 
 colony.' F'rom 1763 to 17Y4 the province remained in a 
 very unsettled state, chiefly on account of tho uncer- 
 tainty that prevailed as to the Liws actually in force. 
 The " new subjects," or French Canadians, contended 
 that justice, so far as they were concerned, should bo ad- 
 ministered in accordance with their ancient customs and 
 usages, by which for a long series of years their civil 
 rights and property had been regulated, and which they 
 also maintained were secured to them by the terms of 
 the capitulation and tho subsequent treaty. On tho 
 other hand, " the old," or English subjtjcts, argued from 
 the proclamation of 1763 that it was His Majesty's inten- 
 tion at once to abolish the old established jurisprudence 
 of the country, and to establish English law in its place, 
 even with respect to the titles of lands, and the modes of 
 descent, alienation and settlement.^ 
 
 * Garneau IL, 87-S. Only one native French-Canadian was 
 admitted into this council. 
 
 2 Atty.-Gen. Thurlow, in Christie, I., pp. 51-63 ; also, Report 
 of Atty.-Gen. Yorke, and Sol.-Gen. De Grey, 14th April, 1766, 
 quoted by Thurlow, 55. The latter able lawyer expressed himself 
 very forcibly as to the rights of the French Canadians : " They 
 seem to have been strictly entitled by the jus gentium to their 
 property, as they possessed it upon the capitulation and treaty 
 ■)f peace, together with all its qualities and incidents by tenure 
 or otherwise, and also to their personal liberty. * * * * it 
 seems a necessary consequence that all tliose laws by which that 
 proi)erty was created, defined, and secured, must be continued to 
 them. To introduce any other, as Mr. Yorke and Mr. DeGrey 
 emphatically expressed it, tends to confound and subvert 
 rights, instead of supporting them." lb, 59, 
 
CHAPTER III. 
 
 THE QUEBEC ACT OF 17*74. 
 
 The province of Quebec remained for eleven years 
 under the system of government established by the pro- 
 clamation of 1763. In 1774, Parliament intervened for 
 the first time in Canadian affairs and made important 
 constitutional changes. The previous constitution had 
 been created by letters-patent under the great seal of 
 Great Britain, in the exercise of an unquestionable and 
 undisputed prerogative of the Crown. The colonial in- 
 stitutions of the old possessions of Great Britain, now 
 known as the United States of America, had their origin 
 in the same way.^ But in 1774, a system of government 
 was granted to Canada by the express authority of Par- 
 liament.'^ This constitution was known as the Quebec 
 
 ' Report of Committee of Council, 1st May, 1849, app. A., 
 vol. ii. Earl Grey's Colonial Policy. 
 
 ^ 14 Geo. III., c. 83, *' making more effectual provision for the 
 government of the province of Quebec, in North America." 
 The bill, on the motion for its passage, with amendments, in the 
 House of Commons, was carried by 56 yeas to 20 nays. In the 
 House of Lords it had a majority of 19; Contents 26, Non. Con, 
 7. Cav. Deb. iv., 296. 
 
QUEBEC ACT OF 1774. 1 
 
 rt 
 
 Act, and greatly extended the boundaries of the pro- 
 vince of Quebec, as defined in the proclamation of 1763. 
 On one side, the province extsnded to the frontiers of 
 New England, Pennsylvania, New York province, the 
 Ohio, and the left bank of the Mississippi ; on the other, 
 to the Hudson's Bay Territory. Labrador, and the 
 islands annexed to Newfoundland by the proclamation of 
 1163, were made part of the province of Quebec. 
 
 The bill was introduced in the House of Lords on the 
 2nd of May, 1714, by the Earl of Dartmouth, then 
 colonial secretary of state, and passed that body without 
 opposition. Much discussion, however, followed the bill 
 in its passage through the House of Commons, and on its 
 return to the Lords, the Earl of Chatham opposed it " as 
 a most cruel, oppressive, and odious measure, tearing up 
 justice and every good principle by the roots." The op- 
 position in the province was among the British in- 
 habitants, who sent over a petition for its repeal or 
 amendment. Their principal grievance was that it sub- 
 stituted the laws and usages of Canada for English law.^ 
 The Act of 1774 was exceedingly unpopular in England 
 and in the English-speaking colonies, then at the com- 
 mencement of the Eevolution.^ Parliament, however, 
 appears to have been influenced by a desire to adjust the 
 
 ^ Cav. Deb., preface, iii.-vi. 
 
 2 The American Congress, in an address to the people of 
 Great Britain, September 5, 1774, declared the act to be "unjust, 
 unconstitutional, and most dangerous and destructive of Ameri- 
 can rights." (Christie, I., 8-9.) In 1779, Mr. Masdres, formerly 
 attorney-general of Quebec, stated that ** it had not only of- 
 fended the inhabitants of the province, but alarmed all the 
 English provinces in America." Cav. Deb., v. 
 
14 CONSTITUTIONAL HISTORY. 
 
 goveniment of the province so as to conciliate the ma- 
 jority of the people.' In the royal speech closing the 
 session, the law was characterized as '' founded on the 
 plainest principles of justice and humanity, and would 
 have the best effect in quieting the minds and promoting 
 the happiness of our Canadian subjects."^ 
 
 The new constitution came into force in October, 
 1^74. The Act sets forth among the reasons for legis- 
 lation that the provisions made by the proclamation of 
 1763 were '' inapplicable to the state and circumstances 
 of the said province, the inhabitants whereof amounted 
 at the conquest, to above sixty-five thousand persons 
 professing the religion of the Church of Eome, and en- 
 joying an established form of constitution and system of 
 laws, by which their persons and property had been 
 protected, governed, and ordered for a long series of 
 years, from the first establishment of the province." 
 C'Onsequently, it is provided that Eoman Catholics should 
 be no longer obliged to take the test oath, but only the 
 oath of allegiance. The government of the province was 
 entrusted to a governor and a legislative council, ap- 
 pointed by the Crown, inasmuch as it was "inexpedient 
 to call an assembly."^ This council was to comprise not 
 more than twenty-three, and not less than seventeen 
 
 ^ Garneau, who represents French Canadian views in his 
 history, acknowledges that " the law of 1774 tended to reconcile 
 the Canadians to British rule." II., 125. 
 
 ^ Cav. Deb., iv. 
 
 ^ Fox contended for a representative assembly, but Lord 
 North expressed his opinion that it was not wise for a Protest- 
 ant government to delegate its powers to a Catholic assembly. 
 Cav. Deb., 246-8. 
 
QUEBEC ACT OF 1774. 15 
 
 members, and had the power, with the consent of the 
 governor or commander-in-chief for the time being, to 
 make ordinances for the peace, wehare, and goodgovei-n- 
 ment of the province. They had no authority, however, 
 to lay on any taxes or duties except such as the in- 
 habitants of any town or district might be authorized to 
 assess or levy within its precincts for roads and or- 
 dinary local sei-vices.' No ordinance could bo passed, 
 except by a majority of the council, and every one had 
 to be transmitted within six months after its enactment 
 to His Majesty for approval or disallowance. It was 
 also enacted that in all matters of controversy, relative 
 to property and civil rights, recourse should be had to 
 the French civil procedure, whilst the criminal law of 
 England should obtain to the exclusion of every other 
 criminal code which might have prevailed before 1-64 
 Both the civil and the criminal law might be modified 
 and amended by ordinances of the governor and legis- 
 lative council. Owners of lands, however, might be- 
 queath their property by will, to be executed either ac- 
 cordin<r to the laws of England or the forms prescribed 
 by the laws of England. The Act also expressly gave the 
 French Canadians additional assurancethat they would bo 
 
 secured in the rights guaranteed to them by the terms 
 of the canitulation and the subsequent treaty. Eoman 
 Catholics'were permitted to observe their religion with 
 
 » A supplementary till, passed in the session of 1774 {14 Geo. 
 Ill c 88) provided a revenue for defraying expenses of ad- 
 min'istrction of justice and civil government by imposing duties 
 on spirits and molasses, in place of old French colonial custom 
 dues. The deficiency in the expenses was supplied from the 
 imperial treasury. Christie, 1., 1-2. 
 
16 CONSTITUTIONAL HISTORY 
 
 perfect freedom, and their clergy were to enjoy their 
 "accustomed dues and rights " with respect to such per- 
 sons as professed that creed. Consequently, the Eomaa 
 Catholic poj)ulation of Canada were relieved of their dis- 
 abilities many years before people of the same belief in 
 Great Britain and Ireland received similar privileges. 
 
 The new constitution was inaugurated by Major 
 General Carleton, afterwards Lord Dorchester,^ who 
 nominated a legislative council of twenty-three members, 
 of whom eight were Eoman Catholics.^ This body sat, 
 as a rule, with closed doors f both languages were em- 
 ployed in the debates, and the ordinances agreed to were 
 drawn up in French and English. It was not able to sit 
 regularly, on account of the government being fully oc- 
 cupied with the defence of the province during the pro- 
 gress of the American war of independence.* In 1^76, the 
 governor-general called to his assistance a privy council 
 of five members, in accordance with the royal instruc- 
 tions accompanying his commission. This advisory, 
 not legislative, body, was composed of the lieutenant- 
 governor and four members of the legislative council.^ 
 
 ^ He was appointed Governor of Canada in 1772 ; in 177d 
 created a Knight of the Bath ; in 1786 raised to the peerage 
 with the above title. Caven. Deb., 100, no<e. 
 
 * Several were public functionaries. Garneau, IL, 166. 
 
 ^ Councillors were required to take the following oath : — " I 
 swear to keep close and secret all such matters as shall be 
 treated, debated, and resolved in Council, without disclosing or 
 publishing the same or any part thereof." Doutre et Lareau, 718. 
 
 * It did not meet during 1776. Garneau, IL, 165. 
 
 ^ Garneau, II., 169. Exception was taken to the legality of 
 this body by Chief- Justice Livius, who contended that the law 
 of 1774 only gave authority to establish a legislative council. 
 
CIIAPTEE lY. 
 
 CONSTITUTIONAL ACT, 1^91. 
 
 The constitution of 1114. remained in force until the 
 20th of December, 1^91, when two provinces were 
 established in Canada, and a more liberal system of 
 government was given to each section. Whilst the 
 American war of independence was in progress, the 
 French Canadian peox)le remained faithful to their al- 
 legiance, and resisted all the efforts of the Americans to 
 induce them to revolt against England.^ One very im- 
 portant result of the war was the immigration into 
 British North America of a large body of people who had 
 remained faithful to British connection throughout the 
 struggle in the old colonies, and were destined, with 
 their descendants, to exercise a great influence on the 
 material and political development of Canada. Some 
 forty thousand loyalists, as near as can be ascertained, 
 came into the British American provinces. The ma- 
 
 1 In 1775, General AVashington addressed a proclamation to 
 the French Canadians ; Baron D'Estaing, commander of the 
 French fleet, did the same in 1788. All such efforts were in- 
 effectual. Speech of Sir G. K Cartier, Confed. Deb., 57-60. 
 2 
 
18 CONSTITUTIONAL HISTORY. 
 
 jority settled in the maritime colony of Nova Scotia, 
 and founded the province of New Brunswick ; but a large 
 number, some ten thousand probably, established them- 
 selves in the country known as Upper Canada.* By 
 ITOO, the total population of Canada had reached, prob- 
 ably, over one hundred and sixty thousand souls.* In 
 1788, the governor created five judicial districts in 
 Upper and Lower Canada, in order to meet the require- 
 ments of the new population.^ It had by this time be- 
 come the opinion of English statesmen that it would be 
 advisable to make further constitutional changes in the 
 province, more consonant with the wishes of its large 
 population, of which the British element now formed a 
 very important part. The question of representative 
 
 * Introduction to Canada Census Statistics of 1871, vol. iv., 
 xxxviii.-xlii. 
 
 "^ The population of New France in 1760 was estimated at be- 
 tween 60,000 and 70,000, a considerable emigration to France 
 having taken place after the conquest. In 1775, the population 
 of all Canada was estimated at 90,000. In 1 790, Nova Scotia had 
 probably 30,000 inhabitants ; 1793, Cape Breton, 2,000 ; St. John 
 or Prince Edward Island, 4,500 in 1796; New Brunswick had 
 35,000 by 1806.— (Census Statistics of 1871, vol. iv.) Others 
 estimate the population of Canada in 1790 at only 135,000. 
 Garneau, II., 205. 
 
 3 The district in the province of Quebec was called Gasp^ ; the 
 other four in the upper section were called Luneburg, Mecklen- 
 burg, Nassau and Hesse, after great houses in Germany, allied 
 to the royal family of England. Luneburg extended from the 
 Ottawa to the Gananoque ; Mecklenburg, from the Gananoque 
 to the Trent ; Nassau, from the Trent to Long Point, on Lake 
 Erie ; and Hesse embraced the rest of Canada to ,the St. Clair. 
 Doutre et Lareau, Histoire du Droit Canadien,I., 744. Bourinot's 
 Local Government in Canada, 30. 
 
CONSTITUTIONAL ACT, 1791. 19 
 
 government agitated the province from 1783 to 1790, and 
 petitions and memorials, embodying the conflicting 
 views of the political parties into which the people were 
 divided, were presented to the home government, which 
 decided to deal with the question, after receiving a re- 
 port from Lord Dorchester, who had been authorized to 
 make full enquiry into the state of the colony. In the 
 session of 1791, George III. sent a message to the House 
 of Commons declaring that it would be for the benetit of 
 the people of the province if two distinct governments 
 were established therein under the names of Lower Can- 
 ada and Upper Canada.* The result was the passage 
 through Parliament of the Constitutional Act of 1791,* 
 which was introduced in the House of Commons by Mi\ 
 Pitt. This act created much discussion in Parliament 
 and in Canada, where the principal opposition came from 
 the British inhabitants of Lower Canada.^ Much jealousy 
 
 1 March 4, 1791. Christie, I., 68-8. 
 
 2 31 Geo. HI., c. 31. " In Upper and Lower Canada the three 
 estates of governor, council and assembly were established, not 
 by the Crown (as in the case of the old colonies), but by the ex- 
 press authority of Parliament. This deviation from the general 
 usage was unavoidable, because it was judged right to impart 
 to the Roman Catholic population of the Canadas privileges 
 which, in the year 1791, the Crown could not have legally con- 
 ferred upon them. There is also reason to believe that the set- 
 tlement of the Canadian constitution, not by a grant from the 
 Crown merely, but in virtue of a positive statute, was regarded 
 by the American loyalists as an important guarantee for the 
 secure enjoyment of their political franchises." Eep. of Com. of 
 Council, let May, 1849 ; Earl Grey's Colonial Policy, II., app. A. 
 
 * Mr. Adam Lymbumer, a Quebec merchant, was heard on 
 the 23rd March, 1791, at the bar of the House of Commona 
 against the bill Christie, I., 74-114. 
 
20 CONSTITUTIONAL HISTORY. 
 
 already existed between the two races, who were to be 
 Btill more divided from each other in the course of the 
 operation of the new constitution. The authors of the 
 new scheme of government, however, were of opinion 
 that the division of Canada into two provinces would 
 have the effect of creating harmony, since the French 
 would be left in the majority in one section, and the 
 British in the other.^ The Quebec Act, it was generally 
 admitted, had not promoted the prosperity or happiness 
 of the people. Great uncertainty still existed as to the 
 laws actually in force under the act. Although it had 
 been sixteen years in operation, neither the judges nor 
 the bar clearly understood the character of the laws of 
 Canada previous to the conquest. No certainty existed 
 in any matters of litigation except in the case of the pos- 
 session, transmission, or alienation of landed property, 
 where the custom of Paris was quite clear. The Can- 
 adian courts sometimes admitted, and at other times re- 
 jected, French law, without explaining the grounds of 
 their determination. In not a few cases, the judges were 
 confessedly ignorant of French Canadian jurisprudence.^ 
 The Constitutional Act of 1^91 established in each 
 province a legislative council and assembly, with power 
 
 ^ Mr. Pitt said : '* I hope this separation will put an end to the 
 competition between the old French inhabitants and the new 
 settlers from Britain and the British colonies." Edmund Burke 
 was of opinion that "to attempt to amalgamate two popula- 
 tions composed of races of men diverse in language, laws, and 
 customs, was a complete absurdity." For debates on bill see 
 Eng. Hans., Pari. Hist, vol. 28, p. 1271 ; vol. 29, pp. 104, 359-459, 
 655T Gameau, II., 198-203. Christie, 1, 66-114. 
 
 * Christie, I., 67. Mr. Lymburner, lb. 77-79 ; Report on Ad- 
 ministration of Justice, 1787. Gameau, II., 189-90. 
 
CONSTITUTIONAL ACT, 1791. 21 
 
 to make laws. The legislative council was to be ap- 
 pointed by the King for life— in Upper Canada to con- 
 Bist of not less than seven, and in Lower Canada of not 
 less than fifteen members. Members of the council and 
 assembly must be of the age of 21, and cither natural- 
 born subjects or naturalized by act of Parliament, or 
 subjects of the Crown by the conquest and cession ol 
 Canada. The sovereign might, if he thought proper, 
 annex hereditary titles of honour to the right of being 
 summoned to the legislative council in either province.^ 
 The speaker of the council was to be appointed by the 
 governor-general. The whole number of members in 
 the assembly of Upper Canada was not to be less than 
 sixteen; in Lower Canada not less than fifty ^— to be 
 chosen by a majority of votes in cither caso. The limits 
 of districts returning representatives, and the number 
 of representatives to each, were fixed by the governor- 
 
 1 No titles were ever conferred under the authority of the act 
 Colonel Pepperell was the first American colonist who was 
 made a baronet for his services in the capture of Louisbourg» 
 1745. Such distinctions were very rare in Canada during the 
 years previous to Confederation. Chief Justices James Stuart 
 and J. B. Robinson were both made baronets in the early times 
 of Canada. But, since 1867, the Queen has conferred special 
 marks of royal favour on not a few Canadians of merit. (See 
 Todd Pari. Govt, in the Colonies, 232 et seq.) The Order of St. 
 Michael and St. George was expressly enlarged with the view 
 of giving an Imperial recognitionof the services of distinguished 
 colonists in difierent parts of the Empira 
 
 2 Mr. Fox was of opinion that the assembly in Lower Canada 
 should have at least one hundred members ; he was also in 
 favour of an elective legislative council. 
 
22 CONSTITUTIONAL HISTORY. 
 
 general. The county members were elected by owners 
 of lands in freehold, or in fief or roture, to the value of 
 forty shillings sterling a year over and above all rents 
 and charges payable out of the same. Members for the 
 towns and townships were elected by persons having a 
 dwelling house and lot of ground therein of the yearly 
 value of £5 sterling or upwards, or who have resided in 
 the town for twelve months previous to the issue of the 
 election writ, should have bond fide paid one year's rent 
 for the dwelling-house in which ho shall have resided, at 
 the rate of £10 sterling a year or upwards. No legisla- 
 tive counc'Uor or clergyman could be elected to the as- 
 sembly in either province. The governor was authorized 
 to fix the time and place of holding the meeting of the 
 legislature, and to prorogue and dissolve it whenever he 
 deemed either course exj)edient; but it was also provided 
 that the legislature was to be called together once at 
 least every year, and that each assembly should continue 
 for four years, unless it should be sooner dissolved by the 
 governor. It was in the power of the governor to with- 
 hold as well as give the royal assent to all bills, and to 
 reserve such as he should think fit for the signification of 
 the pleasure of the Crown. The British Parliament re- 
 served to itself the right of providing regulations im- 
 posing, levying and collecting duties, for the regulation 
 of navigation and commerce to be carried on between the 
 two provinces, or between either of them and any other 
 part of the British dominions or any foreign country. 
 Parliament also reserved the power of appointing or 
 directing the payment of duties, but at the same time 
 left the exclusive apportionment of all moneys levied in 
 this way to the legislature, which could apply them to 
 
CONSTITTTIONAL ACT, 1791. 23 
 
 such public uses as it might deem expedient. It was 
 also provided in the new constitution that all public 
 functionaries, including the governor-general, should be 
 appointed by the Crown, and removable at the royal 
 pleasure. The free exercise of the Roman Catholic reli- 
 gion was guaranteed permanently. The king was to 
 have the right to set apart, for the use of the Protestant 
 clergy in the colony, a seventh part of all uncleared 
 crown-lands. The governors might also be emj^owered 
 to erect parsonages and endow them, and to present in- 
 cumbents or ministers of the Church of England, and 
 whilst power was given to the provincial legislatures to 
 amend the provisions respecting allotments for the aup- 
 port of the Protestant clergy, all bills of such a nature 
 could not be assented to until thirty days after they had 
 been laid before both houses of the Imperial Parliament.^ 
 The governor and executive council were to remain a 
 court of appeals until the legislatures of the provinces 
 might make other provisions.- The right of bequeathing 
 property, real and personal, was to bo absolute and unre- 
 stricted. All lands to be granted in Upper Canada were 
 to be in free and common socage, as well as in Lower 
 Canada, when the grantee desired it. English criminal 
 law was to obtain in both provinces. 
 
 A proclamation was issued on the 18th of !N'ovember, 
 
 1 The intent of these provisions was to preserve the rights and 
 interests of the established Church of England in both provinces 
 from invasion by their respective legislatures. Christie, 1. 122. 
 
 * An ordinance of the province of Quebec had so constituted 
 the Executive ; provision was made subsequently as required by 
 the Act* 
 
24 CONSTITUTIONAL HISTORY. 
 
 1791.^ On tho 1t\\ of May, 1792, Lower Canada was di- 
 vided into fifty electoral districts, returning altogether 
 fifty members. The legislature of that province was 
 called together by proclamation of tho 30th of Octobo»-, 
 and met for the first time accordingly at (Juebec on the 
 l*7th of December, 1792. Tho legislative council was 
 composed of fifteen members.'^ The government of Upper 
 Canada was organized at Kingston in July, 1792, when 
 the members of the executive and legislative councils 
 were sworn, and writs issued for tho election of the 
 assembly. The first meeting of the legislature of Upper 
 Canada — with seven members in tho legislative council 
 and sixteen in the assembly — was held at Newark (the 
 old name of Niagara) on the 17th of September, 1792, 
 and was formally opened by Lieutenant-Governor 
 Simcoe.'^ Both legislatures, even in those early times of 
 
 ^ By the lieutenant-governor, General A lured Clarke. The 
 governor-general, Lord Dorchester, was absent in England. 
 This proclamation 6et forth the division line between the pro- 
 vinces as stated in the order of council of the previous August — 
 the Ottawa River being tiie line as far as Lake Tomiscamingue. 
 Christie, I. 124. 
 
 ^ Hon. W. Smith, chief justice, was appointed speaker of the 
 legislative council of Lower Canada; J. A. Panet was elected 
 speaker of the legislative assembly. See Christie, I. 126-8, 
 Avhere names of members of both Houses are given. The 
 legislature met for some years in the building known as the old 
 Bishop's Palace, situated between the Grand Battery and Pres- 
 cott Gate. 
 
 ^ Hon. W. Osgoode, chief justice, speaker of legislative council ; 
 W. Macdonnell, speaker of legislative assembly. The first 
 meeting was in a rude frame house, about half a mile from the 
 village— it was not unusual for the members to assemble in the 
 
 \ 
 
CONSTITUTIONAL ACT, 1791. 25 
 
 the provinces, assembled with all tho formalities that are 
 observed at tho opening of tho Imperial Parliament.^ 
 Tho rules and orders adopted in each Icj^islature were 
 based, as far as i^racticablo in so new a country, on tho 
 rules and usages of its British prototype.* 
 
 Tho Constitutional Act of 1791 was framed with the 
 avowed object of ^'assimilating tho constitution of Can- 
 ada to that of Great Britain, as nearly as the difference 
 arising from tho manners of tho people, and from the 
 present situation of the province will admit."^ 
 
 For some years after tho inauguration of the new con- 
 stitution, ])olitical matters proceeded with more or less 
 harmony, but eventually a conflict arose between the 
 governors and the representatives in tho assombl}', as 
 well as between the latter and tho upper house, which 
 
 open air. (Scadding's Toronto, p. 20.) The legislature of Upper 
 Canada was removed to York, now Toronto, in 1797 — that town 
 having been founded and named by Governor Simcoe in 1794. 
 (Withrow, 292.) The provincial legislature met in a wooden 
 building on what is now known as Parliament street. (Scad- 
 ding's Toronto, pp. 26-7.) 
 
 ^ The Duke de la Rochefoucault-Liancourt, who was present at 
 an " opening " in 1795, at Newark, gives a brief account of the 
 ceremonial observed even amid the humble surroundings of the 
 first Parliament See vol. ii., p. 88. 
 
 * Chap, v., Bourinot's Parliamentary Practice and Procedure. 
 
 ^ Despatch of Lord Grenville to Lord Dorchester, 20th Oct, 
 1789, given in App, to Christie, VI., pp. 16-26. Lt.-Governor 
 Simcoe, in closing the first session of the legislature of Upper 
 Canada, said that it was the desire of the imperial government 
 to make the new constitutional system " an image and tran- 
 script of the British constitution." See Journals of U. C, 1792; 
 E. Commons Papers, 1839, vol. 33, p. 166. 
 
26 CONSTITUTIONAL HISTORY. 
 
 kept the people in the different provinces, especially in 
 Lower Canada, in a state of continual agitation. In 
 Upper and Lower Canada the official class was arrayed, 
 more or less, with the legislative council against the 
 majority in the assembly. In Lower Canada the dispute 
 was at last so aggi^avated as to prevent the harmonious 
 operation of the constitution. The assembly was con- 
 stantly fighting for the independence of Parliament, and 
 the exclusive control of the supplies and the civil list. 
 The control of " the casual and territorial revenues" was 
 a subject which provoked constant dispute between the 
 crown officials and the assemblies in all the provinces. 
 These revenues were not administered or appropriated 
 by the legislature, but by the governors and their officers. 
 At length, when the assemblies refused supplies, the ex- 
 ecutive government availed itself of these funds in order 
 to make itself independent of the legislature, and the 
 people through their representatives could not obtain 
 those reforms which they desired, nor exercise that influ- 
 ence over officials which is essential to good government.^ 
 The governor dissolved the Qr.ebec legislature with a 
 frequency unparalleled in political history, and was per- 
 sonally drawn into the conflict. Public officials were 
 harassed by impeachments. The assembly's bills of a 
 financial, as well as of a general character, were fre- 
 quently rejected by the legislative council, and the dis- 
 putes between the two branches of the legislature 
 eventually rendered it impossible to pass any useful 
 legislation. In this contest, the two races were found 
 
 * Mr. "W, Macdougall : Mercer v. Attorney-General for Ontario, 
 Canada Sup. Court Rep., vol. v., pp. 645-6. 
 
CONSTITUTIONAL ACT, 1791. 21 
 
 aiTayed against each other in the bitterest antagonism,' 
 Appeals to the home government were very common, 
 but no satisfactory results were attained as long as the 
 constitution of 1791 remained in force. In Upper Can- 
 ada the financial disputes, which were of so aggravated a 
 character in the lower province, were more easily ar- 
 ranged ; but nevertheless a great deal of irritation existed 
 on account of the patronage and political influence being 
 almost exclusively in the hands of the official class, which 
 practically controlled the executive and legislative coun- 
 cils.^ 
 
 In iNTova Scotia the majority of the house of assembly 
 were continually protesting against the composition of 
 the executive and legislative councils, and the preponder- 
 ance therein of certain interests which they conceived 
 to be unfavourable to reform.^ In New Brunswick, for 
 years, the disputes between the executive and legislative 
 powers were characterized by much acrimony, but even- 
 tually all the revenues of the province were conceded to 
 
 ^ " I expected to find a contest between a government and a 
 people ; I found two nations warring in the bosom of a single 
 state ; I found a struggle, not of principles, but of races." Lord 
 Durham's R , p. 7. 
 
 ^ Lord Durham's R., pp. 56-58. 
 
 ^ Mr. Young to Lord Durham, R., p. 75, and App. At the 
 time of the border difficulties with !Maine, the Nova Scotia legis- 
 lature voted the necessary supplies. "Yet," said Mr. Howe, 
 those who voted the money, who were responsible to their con- 
 stituents for its expenditure, and without w^hose consent (for 
 they formed two-thirds of the Commons) a shilling could not 
 have been drawn, had not a single man in the local cabinet, by 
 whom it was to be spent, and by whom, in that trying emer- 
 gency, the governor would be advised." 
 
28 CONSTITUTIONAL HISTORY. 
 
 tho assembly, and the government became more harmo- 
 nious from the moment it was confided to those who had 
 the confidence of the majority in the house.^ In Prince 
 Edward Island the political difficulty arose from the land 
 monopoly,^ which was not to disappear in its entirety 
 until the colony became a part of the confederation of 
 Canada. But when we come to review the political con- 
 dition of all the provinces, we find, as a rule, "represen- 
 tative government coupled with an irresponsible execu- 
 tive, the same abuse of the powers of the representative 
 bodies, owing to the anomaly of their position, aided by 
 the want of good municipal institutions ; and the same 
 constant interference of the imperial administration 
 in matters which should be left wholly to the pro- 
 vincial governments." ^ In Lower Canada, '*he dotcend- 
 ants of the people who had never been allowed by France 
 a voice in the administration of public affairs, had, after 
 some years* experience of representative institutions, en- 
 tered fully into their spirit and meaning, and could not 
 now be satisfied with the workings of a j)olitical system 
 which always ignored the wishes of the majority who 
 really rcj^resented the people in the legislature. Conse- 
 quently, the discontent at last assumed so formidable a 
 character, that legislat.on was completely obstructed. 
 Eventually, this discontent culminated in the rebellion of 
 1837-38,'^ which inflicted much injury on the province, 
 
 ^ Lord Durham's R., p. 74. 
 
 '^ Ibidf p. 75. 
 
 ^ Lord Durham's R., p. 74. 
 
 * For various accounts of this ill-advised rebellion in L. C, 
 see Garneau, 11. chaps, ii. and iii., Book 16, pp. 418-96'; Christie, 
 vols. iv. and v. ; Withrow, chap, xxvii. 
 
CONSTITUTIONAL ACT, 1791. 29 
 
 though happily it was confined to a very small part of the 
 people. An attempt at a rebellion was also made in the 
 upper province, but so unsuccessfully, that the leaders 
 we^'e obliged to fly almost simultaneously with the rising 
 of wiieir followers; ^ though it was not for many months 
 afterwards that the jDeople ceased to feel the injurious 
 effects of the agitation which the revolutionists and their 
 emissaries endeavoured to keep up in the provinc . In 
 the lower or maritime colonies, no disturbance occurred,^ 
 and the leaders of the popular party were among the first 
 to assist the authorities in their efforts to preserve the 
 public tranquillity, and to express themselves emphati- 
 cally in favour of British connection.^ 
 
 The result of these disturbances in the upper provinces 
 was another change in the constitution of the Canadas. 
 The imperial government was called upon to intervene 
 promptly in their affairs. Pr 3vious to the outbreak in 
 Canada the government had sent out royal commission- 
 ers with instructions to inquire fully into the state of 
 the province of Lower Canada, where the ruling party 
 in the assembly had formulated their grievances in the 
 shape of ninety-two resolutions, in which, among other 
 
 ^ Life of W. Lyon Mackenzie, C. Lindsey. Withrow, chap, 
 xxviii. 
 
 * *' If in these provinces there is less formidable discontent 
 and less obstruction to the regular course of government, it is 
 because in them there has been recently a considerable depar- 
 ture from the ordinary course of the colonial system, and a 
 nearer approach to sound constitutional practice." Lord 
 Durham's R., p. 74, 
 
 ^ See remarks of Mr. Joseph Howe at a public meeting held at 
 Halifax, N.S., in 1838. Howe's Life and Letters, L 171. 
 
30 CONSTITUTIONAL HISTORY. 
 
 things, they demanded an elective legislative council.* 
 Lord Gosford came out in 1835 as governor-general and 
 as head of the commission,^ but the result tended only to 
 intensify the discontent in the province. In 1837, Lord 
 John Eussell carried, in the House of Commons, by a 
 large majority, a series of resolutions, in which the de- 
 mand for an elective legislative council and other radical 
 changes was positively refused.^ In this public emer- 
 gency the Queen was called upon, on the 10th of Febru- 
 ary, 1838, to sanction a bill passed by the two houses, 
 suspending the constitution, and making temporary pro- 
 vision for the government of Lower Canada. This act* 
 was i3roclaimed in the Quebec Gazette on the 29th of 
 March in the same year, and, in accordance with its pro- 
 visions, Sir John Colborne appointed a special council.^ 
 which continued in office until the arrival of Lord 
 Durham, who superseded Lord Gosford as governor-gen- 
 eral,^ and was also entrusted with large powers as high 
 commissioner^ " for the adjustment of certain important 
 affairs, affecting the provinces of Upper and Lower 
 
 ^ Garneau, II. 415-5. Journals, L.C., 1834, p. 310. 
 ^ Withrow, 365. Sir C. Grey and Sir G. Gipps were associated 
 with Lord Gosford on the Commission. 
 3 Eng. Com. J. [92] 305 ; Mirror of P., 1243-4. 
 
 * 1 and 2 Vict., c. 9 ; 2 and 3 Vict., c. 53. 
 
 * Christie V., 51. The first ordinance suspended the Habeas 
 Corpus and declared that the enactment of the council should 
 take effect from date of passage. 
 
 ^ Christie, V. 48-9. Sir John Colborne was only administrator 
 at this time. 
 
 ' For instructions, in part, to Lord Durham and his remarks 
 in the House of Lords on accepting the office, see Christie V., 
 47-50. 
 
CONSTITUTIONAL ACT, 1791. 31 
 
 Canada." Immediately on Lord Durham's arrival ho 
 dissolved the special council just mentioned and ap- 
 pointed a new executive council.^ This distinguished 
 statesman continued at the head of affairs in the province 
 from the last of May, 1838, until the 3rd of November 
 in the same year, when he returned to England, where 
 his ordinance of the 28th of June, sentencing certain 
 British subjects in custody to transportation without a 
 form of trial, and subjecting them, and others not m 
 prison, to death in case of their return to the countiy 
 without permission of the authorities, had been most 
 severely censured in and out of Parliament as entirely 
 unwarranted by law.^ So strong was the feeling m the 
 Imperial Parliament on this question, that a bill was 
 passed to indemnify all those who had issued or acted m 
 putting the ordinance in force.^ 
 
 1 Christie, V. 150-51. 
 
 ' For debates on question, text of ordinance and accompany- 
 
 in<' proclamation, see Ibid. 158-83. 
 
 ?TIns bill was introduced by Lord Brougham, the severest 
 critic of Lord Durham's course in this matter. (1 and 2 Vict, 
 C 112 ) In admitting the questionable cliaracter of the ordi- 
 nance. Lord Durham's friends deprecated the attacks made 
 a<'ainst him, and showed that all his measures had been influ- 
 enced by an anxious desire to pacify the dissensions in the pro- 
 vinces. Christie, V. 183-94. 
 
CHAPTEE Y. 
 
 UNION ACT, 1840. 
 
 The immediate result of Lord Durham's mission was 
 an elaborate report/^ in which he fully reviewed the 
 political difficulties of the provinces, and recommended 
 imperial legislation with the view of remedying existing 
 evils and strengthening British connection. The most 
 important recommendation in the report was to the eifect 
 that '*no time should be lost in proposing to Parliament 
 a bill for restoring the union of the Canadas under ono 
 legislature, and reconstructing them as one province." 
 On no point did he dwell more strongly than on the ab- 
 solute necessity that existed for entrusting the govern- 
 ment to the hands of those in whom the representative 
 body had confidence.* He also proposed that the Crown 
 
 ^ Officially communicated to Parliament, 11th Feb., 1839. 
 
 ^ " I know not how it is possible to secure harmony in any 
 other way than by administering the government on those prin- 
 ciples which have been found perfectly efficacious in Great 
 Britain. I would not impair a single prerogative of the Crown . 
 on the contrary, I believe that the interests of the people of 
 these provinces require the protection of prerogatives which 
 
UNION ACT, 1840. 33 
 
 should give up its revenues, except those derived from 
 land sales, in exchange for an adequate civil list, that the 
 independence of the judges should bo secured, and that 
 municipal institutions should be established without 
 delay, " as a matter of vital importance.'* The first im- 
 mediate result of these suggestions was the presentation 
 to the Imperial Parliament, on tho 3rd of May, 1839, of 
 a royal message,^ recommending a union of the Canadas. 
 In tho month of June, in the same year. Lord John 
 Eussell introduced a bill to reunite the two province^, 
 but it was allowed, after its second reading, to lie over 
 for that session of Parliament, in order that the matter 
 might bo fully considered in Canada, and more informa- 
 tion obtained on the subject.^ Mr. Poulett Thomson" was 
 ai)pointed governor-general with tho avowed object of 
 carrying out the policy of the imperial government, and 
 immediately after his arrival at Montreal in November, 
 1839, ho called tho special council together, and ex- 
 
 have not hitherto been exercised. But the crown must, on the 
 other hand, submit to the necessary consequences of representa- 
 tive institutions ; and if it has to carry on the government in 
 unison with a representative body, it must consent to carry it 
 on by means of those in whom that representative body has 
 confidence." Page 106 of R. 
 
 * Mr. Poulett Thomson's remarks to special council, 11th Nov., 
 1839. Christie, V. 316. 
 
 3 Christie, V. 289-90. The opinion of the British Parliament 
 was decidedly favourable to the bill. 
 
 ' Mr. Thomson was a member of the Imperial Parliament, and 
 of decidedly advanced views in politics. Sir John Colbome was 
 governor in the interval between Lord Durham's retirement and 
 Mr. Thomson's appointment. 
 3 
 
34 CONSTITUTIONAL HISTORY. 
 
 plained to them " the anxious desire felt by Parliament 
 and the British people that a settlement of the questions 
 relating to the Canadas should be speedily arrived at." 
 The council passed an address in favour of a reunion of 
 the provinces under one legislature, as a measure of ^* in- 
 dis2)ensablo and urgent necessity."^ The governor- 
 general, in the month of December, met the legislature 
 of Upper Canada, and, after full consideration of the 
 question, both branches passed addresses in favour of 
 union, setting forth at the same time the terms which 
 would be considered most acceptable to the province."^ 
 
 It will be seen that the imperial government considered 
 it necessary to obtain the consent of the legislature of 
 Upper Canada, and of the special council of Lower Can- 
 ada, before asking Parliament to reunite the two pro- 
 vinces. Accordingly, Lord John Bussell, in the session 
 of 1840, again brought forward his bill entitled, ^' An Act 
 to reunite the provinces of Upper and Lower Canada, 
 and for the government of Canada,"^ which was assented 
 to on the 23rd of July, but did not come into effect until 
 the 10th of February in the following year, in accordance 
 
 1 Special Coun. J., Nov. 11, 12, 13, 14. airistie V., 316-22. 
 
 2 Leg. Coun. J. (1839-40) 14, &c. Leg. Ass. J. (1839-40), 16, 57, 
 G3, 66, 161, 164. Christie, V. 326-56. Previously, however, in 
 1838, a committee of the House of Assembly of Upper Canada 
 had declared itself in favour of the proposed union. Upp. Can. 
 Ass. J. (1838), 282. 
 
 3 3 and 4 Vict., c. 35. The bill passed with hardly any oppo- 
 sition in the Commons, but it was opposed in the Lords by the 
 Duke of Wellington, the Earl of Gosford, and the Earl of Ellen- 
 borough, besides others. 
 
UNION ACT, 1840. 35 
 
 with a suspending clause to that effect.* The act pro- 
 vided for a legislative council of not less than twenty 
 members, and for a legislative assembly in which each 
 section of the united pi-ovinces would be represented by 
 an equal number of members — that is to say, forty-two 
 for each, or eighty-four in all. The speaker of the coun- 
 cil was appointed by the Crown, and ten members, in- 
 cluding the speaker, constituted a quorum. A majority 
 of voices was to decide, and in case of an equality of 
 votes, the speaker had a casting vote. A legislative 
 councillor would vacate his seat by continuous absence 
 for two consecutive sessions. The number of represen- 
 tatives allotted to each province could not be changed 
 
 ^ Mr. Poulett Thomson, now created Lord Sydenham, issued 
 his proclamation on February 5, 1841, and took the oath on that 
 day as governor-general from Chief Justice Sir James Stuart at 
 Government House in Montreal. Mr. Thomson's title was 
 Baron Sydenham, of Sydenham in the County of Kent, and of 
 Toronto in Canada. (Christie V., 357-8.) The first Parliament 
 of the united Canadas vras held at Kingston, 14th June, 1841. 
 In 1844 it was removed to Montreal (tiien a city of 40,000 souls), 
 on address. Mr. Speaker Jameson and other Upper Canadian 
 legislative councillors left their seats rather than agree to the 
 vote for the change. The legislature remained at Montreal 
 until the riots of 1849, on the occasion of the E^hellion Losses 
 Bill, led to the adoption of the system, under which the legisla- 
 ture met alternately at Quebec and Toronto — the latter city 
 being first chosen by Lord Elgin. An address to the Queen to 
 select a permanent capital was agreed to in 1857, and Ottawa 
 finally chosen. The Canadian Parliament assembled for the 
 first time on the 8th June, 1866, in the new edifice constructed 
 in that city. The British North America Act, 1867, s. 16, made 
 that city the political capital of the Dominion, Turcotte, 1st 
 part, 71, 144 ; 2nd part, 119, 315-16. 
 
36 CONSTITUTIONAL HISTORY. 
 
 except with the concurrence of two-thirds of the mem- 
 bers of each house. The quorum of the assembly was to 
 be twenty, including the speaker. The speaker was 
 elected by the majority, and was to have a casting vote 
 in case of the votes being equal on a question. Xo 
 person could bo elected to the assembly unless he pos- 
 sessed a freehold of lands and tenements to the value of 
 five hundred pounds sterling over and above all debts 
 and mortgages. The English language alone was to be 
 used in the legislative records.^ A session of the legis- 
 lature should bo held once, at least, every year, and each 
 legislative assembly was to have i duration of four 
 yearSj unless sooner dissolved. Provision was made for 
 a consolidated revenue fund, on which the first charges 
 were expenses of collection, management, and receipt of 
 revenues, interest of public debt, payment of the clergy, 
 and civil list. The fund, once these payments were 
 made, could bo appropriated for the public service as the 
 legislature might think proper. All votes, resolutions or 
 bills involving the expenditure of public money were to 
 be first recommended by the governor-general.^ 
 The passage of the XJniQa Act of 1840 was the com- 
 
 ^ The address from the Upper Canada Assembly prayed for 
 the equal representation of each province, a permanent civil list, 
 the use of the English language in all judicial and legislative 
 records, as well as in the debates after a certain period, and that 
 the public debt of the province be charged on the joint revenues 
 of the United Canadas. These several propositions, except that 
 respecting the French language, were recommended in the 
 governor-general's messages. Christie, V. 334-48. 
 
 * See chapter on Supply. Bourinot's Parliamentary Practice 
 and Procedure. 
 
UNION ACT, 1840. 3^ 
 
 mencement of a new era in the constitutional history of 
 Canada as well as of the other provinces. The statesmen 
 ofGreat Britain had learned that the time had arrived 
 for enlarging the sphere of self-government in the colo- 
 nies of British I^orth America ; and, consequently, from 
 1840 we see them year by year making most liberal con- 
 cessions, which would never have been thought of under 
 the old system of restrictive colonial administration. 
 The most valuable result was the admission of the all 
 important principle that the ministry advising the gover- 
 nor should possess the confidence of the representatives 
 of the people assembled in parliament. Lord Durham, 
 in his report, had pointed out most forcibly the injurious 
 consequences of the very opposite system which had so 
 long prevailed in the provinces. Ilis views had such in- 
 fluence on the minds of the statesmen then at the head of 
 affairs, that Mr. Poulett Thomson (as he informed the 
 legislature of Upper Canada), '^received her Majesty's 
 commands to administer the government of these pro- 
 vinces in accordance with the well-understood wishes 
 and interests of the people." ^ Subsequently he commu- 
 nicated to the legislature of i,he united provinces two 
 despatches from Lord John Eussell," in which the gover- 
 
 ^ In answer to an address from the Assembly, 13th December, 
 1839. (Christie V., 353.) The views of the great body of Re- 
 formers [in Upper Canada) appear to have been limited, accord- 
 ing to their favourite expression, to making the colonial 
 constitution " an exact transcript " of that of Great Britain ; and 
 they only desired that the Crown should, in UpperCanada, as at 
 home, entrust the administration of affairs to men possessing 
 the confidence of the Assembly. Lord Durham's R- 58. 
 
 2 Lord J. Russell was colonial secretary from 1839 to 1841 ; the 
 
38 CONSTITUTIONAL HISTORY. 
 
 nor-general was instructed, in order ** to maintain the 
 utmost possible harmony/' to call to his counsels and to 
 employ in the public service *' those persons who, by 
 their position and character, have obtained the general 
 confidence and esteem of the inhabitants of the province." 
 He wished it to be generally made known by the gover- 
 nor-general that thereafter certain heads of departments 
 would be called upon ** to retire from the public service 
 as often as any sufficient motives of public policy might 
 suggest the expediency of that measure." ' During the 
 first session subsequent to the message conveying these 
 despatches to the legislature, the assembly agreed to 
 certain resolutions which authoritatively expressed the 
 views of the supporters of responsible government. It 
 was emphatically laid down, as the very essence of the 
 principle, that "in order to preserve between the differ- 
 ent branches of the jirovincial parliament that harmony 
 which is essential to the j^eace, welfare, and good gov- 
 ernment of the province, the chief advisers of the repre- 
 sentative of the sovereign, constituting a provincial 
 administration under him, ought to be men possessed 
 of the confidence of the representatives of the people, 
 
 office was afterwards held successively from 1841 to 1852 by 
 Lord Stanley, Mr. Gladstone, and Earl Grey. So that all these 
 eminent statesmen assisted in enlarging the sphere of self- 
 government in the colonies. Todd's Pari, Gov. in the Colo- 
 nies, 25. 
 
 ^ Can. Ass. J. (1841), App. BB. These papers were in response 
 to an address from the Assembly of 5th August, 1841. The in- 
 structions to the governor-general repeated substantially the 
 despatches on responsible government. Journals of Ass., 20th 
 August, 1841, 
 
UNION ACT, 1840. 39 
 
 thus affording a guarantee that the ^y ell-understood 
 wishes and interests of the people, which our Gracious 
 Sovereign has declared shall be the rule of the provincial 
 government, will, on all occasions, bo fiiithfully repre- 
 sented and advocated." ^ Nevertheless, during the six 
 years that elapsed after the passage of this formal expres- 
 sion of the views of the large majority in the legislature, 
 *' Eesponsible Government" did not always obtain in 
 the fullest sense of the phrase, and not a few misunder- 
 standings arose between the governors and the support- 
 ers of the principle as to the manner in which it should 
 be worked out." "^ In 1847, Lord Elgin was appointed 
 governor-general, and received positive instructions *' to 
 act generally upon the advice of his executive council, 
 and to receive as members of that body those persons 
 who might bo pointed out to him as entitled to do so by 
 their possessing the confidence of the Assembly." ^ No 
 Act of Parliament was necessary to effect this important 
 change ; the insertion and alteration of a few paragraphs 
 
 * The resolutions, >vliich were agreed to, were proposed by 
 Mr. Harrison, then provincial-secretary in the Draper-Ogden 
 ministry, in amendment to others of the same purport, proposed 
 by Mr. Baldwin. The resolution quoted in the text was carried 
 by 56 yeas to 7 nays ; the others passed without division. Jour- 
 nals of Ass., 1841, pp. 480-82. 
 
 2 Especially during the administration of Lord Metcalfe 
 (1843-45), who believed he could make appointments to office 
 without taking the advice of his Council. Dent's Canada since 
 the Union, vol. i., chap. xvi. 
 
 ' Grey, Colonial Policy, vol. i. pp. 206-34 ; Adderley, p. 31. 
 See also Colonial Reg., 57. Lord John Russell was premier, and 
 Earl Grey, colonial secretary, when Lord Elgin was appointed. 
 Todd, Pari. Gov. in the Colonies, 54-60. 
 
40 CONSTITUTIONAL HISTORY. 
 
 in the governor's instructions were sufficient.^ By 1848 
 the provinces of Canada, Xova Scotia, and New Bruns- 
 wick ^ were in the full enjoyment of the system of self- 
 government, ^vhich had been so long advocated by their 
 ablest public men ; and the results have proved emi- 
 nently favourable to their political as well as material 
 development. 
 
 From 1841 to 1867, during which period the new con- 
 stitution remained in force, many measures of a very 
 important character were passed by the legislature. The 
 independence of parliament was effectually secured, and 
 judges and officials prevented from fitting in either 
 house.^ An elaborate system of municipal institutions 
 was perfected in the course of a few years for Upper and 
 Lower Canada. It had been proposed to make such a 
 system a part of the constitution of 1840,^ but the clauses 
 on the subject were struck out of the bill during its pas- 
 sage in the House of Commons, on the ground that such 
 a purely local matter should bo left to the new legisla- 
 
 ^ Mr. Merivale, quoted in Creasy's Constitutions of the Britan- 
 nic Empire, 389. Lord John Bussell, in his instructions to Lord 
 Sydenham, expressly stated that it was " impossible to reduce 
 into the form of a positive enactment, a constitutional principle 
 of this nature." Journals of Assembly, 1841, p. 392. 
 
 2 Earl Grey was colonial secretary in 1848, when the system 
 was fully inaugurated in the maritime x>rovinces. E. Commons 
 Papers, 1847-8, vol. 42, pp. 51-88. 
 
 ^ Chap. ii. Bourinot's Parliamentary Practice and Procedure. 
 
 * Lord Durham so proposed it, B. 109. (Scrope's Life of Lord 
 Sydenham, 194.) The address of the Assembly of Upj^erCanada 
 to the governor-general in 1840 called attention to the necessity 
 of introducing a system into Lower Canada, in order to provide 
 for local taxation. Christie, Y. 347, 
 
UNION ACT, 1840. 41 
 
 ture.^ Lord Sydenham, who had very strong opinions 
 on the subject, directed the attention of the legislature 
 in the first session to the necessity of giving a more ex- 
 tended aj^plication to the principles of local self-govern- 
 ment, which already prevailed in the province of Upper 
 Canada; and the result was the introduction and passage 
 of a measure in that direction.'^ At this time there was 
 already in force an ordinance passed by the sj^ecial coun- 
 cil to establish a municipal system in Lower Canada — a 
 measm*e which created much dissatisfaction in the pro- 
 vince. Eventually the ordinance was revoked, and a 
 system established in both provinces which met with 
 general approval.'^ This measure demands special men- 
 tion, even in this chapter, inasmuch as it has had a most 
 valuable effect in educating the mass of the people in 
 self-government, besides relieving the legislature of a 
 large amount of business, which can be more satisfac- 
 torily disposed of in town or county organizations, as 
 provided for by law. In fact, the municipal system of 
 Canada lies at the very basis of its parliamentary insti- 
 tutions. 
 
 Among the distinguishing features of the important 
 legislation of this period was the passage of a measure 
 which may be jH'Operly noticed here, since it disposed of 
 ft vexatious question which had arisen out of the provi- 
 sions of the Constitutional Act of 1T91. It will be seen 
 
 ' Christie, V. 356. 
 
 ^ Introduced by Mr. Harrison ; 4 & 5 Vict, c. 10. 
 
 ' See Bourinot's Local Government in Canada ; Turcotte 1st 
 Part, 97, ISO ; 2nd Part, 200,384. Also, Cons. Stat, of Upper 
 cJanada, c. 54 ; of Lower Canada, c. 24. 
 
42 CONSTITUTIONAL HISTORY. 
 
 by reference to the summary given elsewhere of that Act 
 that it reserved certain lands for the support of a Protes- 
 tant clergy. The Church of England always claimed 
 the sole enjoyment of these lands, and, in 1835, Sir John 
 Col borne established a number of rectories which gave 
 much offence to the other Protestant denominations, who 
 had earnestly contended that these lands, under a strict 
 interpretation of the law, belonged equally to all Protes- 
 tants.^ The Chiu'ch of Scotland, however, was the only 
 other religious body that ever received any advantage 
 from these reserves. The Eeform party in Upper Can- 
 ada made this matter one of their principal grievances, 
 and ill 18313 the legislature passed an Act to dispose of 
 the question, but it fiiiled to receive the approval of the 
 imperial authorities. It was not until 1853 that the 
 British Parliament rccoicuized the right of the Canadian 
 legislature to dispose of the clergy reserves on the con- 
 dition that Till vested rights were respected. In 1854, the 
 Canadian legislature passed a measure making existing 
 claims a first charge on the funds, and dividing the 
 balance among the several municipalities in the province 
 according to population. Consequently, so far as the Act 
 of 1701 attempted to establish a connection between 
 Church and State in Canada, it signally failed."^ 
 
 * In fact, in 1840, the hi^^hest judicial authorities of England 
 gave it as their o[)inion that the words "a Protestant clergy " in 
 the Act of 1701 included other clergy than those of the Church 
 of England. Mirror of P., :May 4, 184vO. 
 
 2 See Lord Durham's P., 6Qy 83 ; Turcotte, II., pp. 137, 234 : 
 Cons. Stat, of Canada, c 25. The measure of 1854 (18 Vict. c. 2) 
 was in charge of Attorney General (now Sir John) M^cdonald, 
 then a member of the MacNab-Morin administration. Leg. 
 Ass. J. (1854-5) 193 et siri* 
 
UNION ACT, 1840. 43 
 
 Nor can the writer well leave out a brief reference to 
 the abolition of the seigniorial tenure, after an existence 
 of over two centuries, since the system deeply affected in 
 many ways the social and political life of the French 
 Canadian people. In the days of the French regime, this 
 system had certain advantages in assisting settlement and 
 promoting the comfort of the inhabitants ; but, as Lower 
 Canada became filled up by a large population, this relic 
 of feudal times became altogether unsui ted to the condi- 
 tion of the country, and it was finally decided to abolish 
 it in the session of 1854.^ 
 
 It was during this period that the Canadian legislature 
 dealt with the civil service, on whoso character and 
 ability so much depends in the working of parliamentary 
 institutions. During the time when responsible govern- 
 ment had no existence in Canada, the legislature had 
 virtually no control over public officials in the different 
 provinces, but their appointment rested with the homo 
 government and the governors. In the appointments, 
 Canadians were sj'stematically ignored, or a selection 
 made from particular classes, and the consequence was the 
 
 ^ Mr. Drummond, attorney-general in the MacNab Morin ad- 
 ministration, introduced the bill which became law, 18 Vict, c 
 3. A bill in the session of 1853 had been thrown out by the Le- 
 gislative Council. For historical account of this tenure see 
 Garneau, I., chap. iii. ; Parkman's Old Kegime, chap, xv.; 
 Turcotte, IL, 161, 203, 234: Cons. Stat, of Lower Canada, 
 chap. xli. The number of fiefs at the time of the passage of the 
 Act of 1854, was ascertained to be 220, possessed by 160 seigneun^, 
 and about 72,000 renturs. The entire superficial area of these 
 properties comprised 12,822,503 acres, about one-half of which 
 was found under rental. Garneau, I., 185, Report of Seigniorial 
 Commission. 
 
44 CONSTITUTIONAL HISTORY. 
 
 creationof a bureaucracy which exercised a large influ- 
 ence in public affairs, and was at the same time inde- 
 pendent of the popular branch. "When eelf-government 
 was entrusted to the provinces, the British authorities 
 declared that they had *' no wish to make tlie provinces 
 the resource for patronage at homo," but, on the contrary, 
 were earnestly intent on giving to the talent and char- 
 acter of leading persons in the colonies advantages 
 similar to those which talent and character cm2)loyed in 
 the public service obtain in the United Ivingdom."^ But 
 at the same time the British government, speaking 
 through the official medium of the secretary of state for 
 the colonies, always pressed on the Canadiaii authorities 
 the necessity of giving permanency and stability to the 
 public service, by retaining deserving public officers 
 without reference to a change of administration.^ The 
 consequence of observing this valuable British principle 
 has been to create a large body of public servants, on 
 whose ability and intelligence depends, in a large mea- 
 sure, the easy working of the machinery of government. 
 According as tho sphere of government expanded, and 
 the duties of administration became more compli- 
 cated, it was found necessary to mature a system better 
 
 ' Lord John Russell, 1839. Journals of Ass. U.C, App. B.B. 
 
 '^ Lord John Russell, 1839, App. B.B., Jour, of Ass., 1841. Earl 
 Grey to Lieut-Governor Harvey of Nova Scotia, 31 March, 1847. 
 E. Com. P. 1847-48, vol. 4L\ p. 77. In Nova Scotia, the advice 
 of the British government was never practically followed, and 
 public officers have been very frequently changed to meet the 
 necessities of politicians. See despatch of the Duke of Newcastle 
 to Governor Gordon, Feb. 22^ 1862, New Brunswick Jour., 1862, 
 p. 192. 
 
UNION ACT, 1840. 45 
 
 adapted to tho public exigencies. The first important 
 measure in this direction was tho bill of 1857, which has 
 been followed by other legislation in tho same direction 
 of improving tho machinery of administration/ 
 
 But in no respect have wo more forcible evidence of 
 the change in the colonial policy of tho imperial govern- 
 meut than in the amendments that wero eventually made 
 in the Union Act of 1 840. All those measures of reform, 
 for which Canadians had been struggling during nearly 
 half a century, were at last granted. The control of the 
 public revenues and tho civil list had been a matter of 
 serious dispute for years between tho colonies and tho 
 parent state ; but, six years after tho union, tho legisla- 
 ture obtained complete authority over tho civil list, with 
 the sanction of the imperial government, which gave up 
 every claim to dispose of provincial moneys."^ About the 
 
 ^ Mr. Spence, when postmaster general in tho Tache-Macdo- 
 nald administration, introduced the Act of 1857, appointing per- 
 manent deputy heads and grades in the departments. 20 Vict, 
 chap. 24. Cons. Stat, of Canada, c. 11. Since Confederation, 24 
 Vict., c. 34. See Reports of Civil Service Commission, presented 
 to Canadian Parliament, 18S0-SI and 1882, in which the pre- 
 sent condition of the service is fully set forth, Ses. Pap., No. 113. 
 (1880-81) and Sess. P., No. 32, (1882). In 1882, Parliament pas- 
 sed an Act to improve the efficiency of the service (45 Vict., c. 4), 
 which has been amended by 46 Vict, c. 7. See Rev. Stat of 
 Canada, c. 17. 
 
 ^ S.s, 50 to 57, respecting consolidated revenue fund and 
 charges thereon, and with the schedules therein referred to, 
 were repealed by the Imperial Act 10 and 11 Vict, c. 71, and 
 the Provincial Act 9 Vict, c. 114, brought into force under sec 9 
 of said Prov. Act, which provided a permanent Civil List in place 
 of that arranged by the Imperial authorities. See Cons. Stat 
 of Canada, c. 10. 
 
46 CONSTITUTIONAL HISTORY. 
 
 same time, the imperial government conceded to Canada 
 the full control of the post office, in accordance with the 
 wishes of the people as expressed in the legislature.* 
 The last tariff framed by the Imperial Parliament for the 
 British possessions in !N"orth America was mentioned in 
 the speech at the opening of the legislature in 1842,^ and 
 not long after that time, Canada found herself, as well as 
 the other provinces, completely free from imperial inter- 
 ference in all matters affecting trade and commerce. In 
 1846, the British Colonies in America were authorized by 
 an imperial statute ^ to reduce or repeal by their own 
 legislation duties imposed by imperial acts upon foreign 
 goods imported from foreign countries into the colonies 
 in question. Canada soon availed herself of this privi- 
 lege, which was granted to her as the logical sequence 
 of the free trade policy of Great Britain, and, from that 
 lime to the present, she has been enabled to legislate 
 very freely with regard to her own commercial interests. 
 In 1849, the Imperial Parliament, in response to addresses 
 of the legislature, and memorials from boards of trade 
 
 ^ See Speech of Lord Elgin, sess. of 1847, Jour, of Ass., p. 7 ; 
 Can. Stat, 13 and 14 Vict., c. 17, s. 2, and Cons. Stat, c. 31, s. 2, 
 under authority of Imperial Act, 12 and 13 Vict, c. 66, 
 
 ■^ Ass. Jour., 1842, p. 3. 
 
 8 Imp. Stat. 9 and 10 Vict, c. 94. Todd Pari. Gov. in the Col- 
 onies, 176-80. See speech of Lord Elgin, 1847, Jour. p. 7, m 
 which he refers to the power given to the colonial legislatures 
 to repeal differential duties heretofore imposed by the Colonies 
 in favour of British produce. In response, the legislature passed, 
 10 and 11 Vict, c. 30, the first measure necessary to meet " the 
 altered state of our colonial relations with the mother country." 
 Speech of Speaker of Assembly in presenting Supply BilL Jour, 
 p. 218. 
 
UNION ACT, 1840. 47 
 
 and merchants in Canada, repealed the navigation laws, 
 and allowed the river St. Lawrence to be used by ves- 
 sels of all nations.^ With the repeal of those old laws, 
 which had been first enacted in the days of the common- 
 wealth to impede the commercial enterprise of the Dutch, 
 Canadian trade and shipping received an additional im- 
 pulse. 
 
 No part of the constitution of 1840 gave greater offence 
 to the French Canadian population than the chiuse re- 
 stricting the use of the French language in the legisla- 
 ture. It was considered as a part of the policy, foi-eshar 
 dowed in Lord Durham's report,- to denationalize, if pos- 
 sible, the French Canadian province. The repeal of the 
 clause in 1848 was one evidence of the harmonious opera- 
 tion of the union, and of the better feeling between the 
 two sections of the population.^ Still later, provision 
 was made for an elective legislative council, so long and 
 earnestly demanded by the old legislature of Lower 
 
 1 Leg. Ass. J. (1849). 43, 48, 57; app. C. ; Imp. Acts, 12 and 13 
 Vict., c. 29, s. 5. The memorandum of the Canadian govern- 
 ment sets forth very clearly that since it was no longer the po- 
 licy of the Empire to give a preference to colonial products in 
 the markets of the United Kingdom, no reason could possibly 
 exist for monopolies and restrictions in favour of British ship- 
 ping. App. C. as above. 
 
 2 « Without effecting the change so rapidly or so roughly as to 
 shock the feelings and trample on the welfare of the existing 
 generation, it must henceforth be the first and steady purpose 
 of the British Government to establish an English population, 
 with Enghsh laws and language, in this province, and to trust 
 its government to have but a decidedly English legislature." 
 P. 110, et seq. 
 
 8 See chap, v., Bourino^'s Practice and Procedure. 
 
48 CONSTITUTIONAL HISTORY. 
 
 Canada. In 1854 the Imperial Parliament passed, in 
 response to an address of the legislative assembly, an Act 
 to empower the legislature to alter the constitution of 
 the legislative council.^ In 1856, the Canadian legisla- 
 tui'c passed a bill providing for an elective upper 
 house ; the province was divided into 48 electoral divi- 
 sions, 24 for each section ; twelve members were to be 
 elected every two years ; every councillor was to hold 
 real estate to tlie value of $8,000 within his electoral dis- 
 trict. The members were only to remain in the council 
 for eight years, but could of course bo reelected. Exist- 
 ing members were allowed to retain their seats during 
 their lives.'^ The speaker was appointed by the Crown 
 from the council until 1862, when he was elected by the 
 members from among their own number.^ The first 
 election of councillors under the new Act took place in 
 the summer of 1856. 
 
 1 Leg. Ass. J. (1853), 944; Imp. Act, 17 and 18 Vict., c. 118. In 
 the course of the debate the Duke of Newcastle said: "The 
 proper course to pursue was to legislate no more for the colo- 
 nies than we coukl possibly help; indeed, he believed that the 
 only legislation now required for the colonies consisted in un- 
 doing the bad legislation of former years." 134 E. Hans (3) 159. 
 22 and 23 Vict. c. 10, Imp. Stat. 
 
 2 19 and 20 Vict,, c 140 ; Cons. Stat, of Canada, c. 1. Mr. Cau- 
 chon, commissioner of Crown Lands, in the McNab-Tach^ Ad- 
 ministration, introduced the bill in the Assembly. 
 
 3 Can. Stat., 23 Vict, c. 3, repealed s, 26 of 19 and 20 Vict, c. 
 140. The Act made also provision for supplying the place of 
 the speaker in case of his being obliged to leave the chair from 
 illness, &c. The first election took place in 1862, March 20, 
 when Sir Allan McNab was chosen Speaker. 
 
CHAPTER YI. 
 Federal Union op the Provinces. 
 
 The union between Upper and Lower Canada lasted 
 until 1867, when the provinces of British North America 
 were brought more closely together in a federation and 
 entered on a new era in their constitutional history. For 
 many years previous to 1865, the administration of go- 
 vernment in Canada had become surrounded with poli- 
 tical difficulties of a very perplexing character. The 
 union had not at first been viewed with favour by the 
 majority of the French Canadians who regarded it as a 
 scheme to anglicize their province in the course of time. 
 One of their grievances ^ was the fact that the Act gave 
 each province the same representation in the legislature, 
 though Lower Canada had in 1840 the gi-eater popula- 
 
 1 See address of Mr. Lafontaine (Turcotte, L 60), in which he 
 laid before the electors of Terrebonne his opinion as to the 
 injustice of the Union Act : ** Lunion est un acte d^injustice et 
 de despotisme en ce qu*elle nous est impos^e sans notre consen- 
 tement; en ce qu'elle prive le Baa-Canada du nombre legitime 
 de ses repr^entants, etc** 
 
50 CONSTITUTIONAL HISTORY. 
 
 tion.^ But the largo immigration that flowed into Upper 
 Canada for many years after the union soon gave the 
 preponderance of population to that province, where in 
 the course of no long time a demand was made for a 
 representation in the legislature according to the poj)u- 
 lation. This demand was always strenuously resisted by 
 the Lower Canadian representatives as unjust in view of 
 the conditions under which they entered the union. The 
 Act itself afforded them sufficient protection inasmuch as 
 it embodied the proviso "^ that the governor could not 
 assent to any bill of the legislature to alter the repre- 
 sentation, Ui^less it should have been passed with the 
 concurrence of two-thirds of the members in each house. 
 This clause was, however, suddenly repealed by the Im- 
 perial Act of 1854, empowering the legislature to alter 
 the constitution of the legislative council, but no prac- 
 tical result ever followed in respect to the representa- 
 tion.^ 
 
 ^ In 1839, Lord Durham gave the population of Upper Canada 
 at 400,000, and that of Lower Canada at 600,000, of whom 450,000 
 were French, The census compiler of 1870 gives the population 
 of Upper Canada in 1840, at 432,159; of Nova Scotia in 1838, 
 202,575 ; of New^ Brunswick, in 1840, 156,162 ; of Assiniboia, 7,704 ; 
 of Prince Edward Island, 47,042 in 1841. No figures are given 
 for Lower Canada in 1840, but we find the number was 697,084 
 in 1844, The figures given by Lord Durham were as accurate 
 as they could be made at the time. 
 
 2 3 and 4 Vict., c. 35, s. 26. This clause was added to the bill 
 by the British Ministry to protect the French Canadian repre- 
 sentation. Garneau, II. 480. 
 
 ^ 17 and 18 Vict, c. 118, s. 5. The legislature had never asked 
 an amendment in this direction, and the history of the repeal 
 is a mystery. Garneau, in the edition of 1859, accused Sir Fran- 
 cis Hincks of having been the inspiring cause ; but in a pam- 
 
UNION OF THE PROVINCES. 51 
 
 It is interesting to note that one of the expedients by 
 which it was hoped to arrange the political conflict be- 
 tween the two sections was the principle of a double 
 majority. In the course of the first decade after the 
 union, prominent public men laid it down as necessary 
 to the harmonious operation of the constitution, that no 
 administration ought to continue in power unless it was 
 supported by a majority from each section of the united 
 provinces.^ As a matter of justice, it was un^ed, that no 
 measure touching the interests of a particular province 
 should be passed, except with the consent of a majority of 
 its representatives." The principle had more or less re- 
 cognition in the government and legislature after 1848.* 
 The very formation of the ministry, in which each pro- 
 vince was equally represented, was an acknowledgment 
 of the principle. But this acknowledgment, it was con- 
 tended, was of no substantial value so long as the ex- 
 ecutive councilloi'R taken from either section of the pro- 
 
 phlet published in 1877, he denied it most emphatically. In a 
 subsequent edition, the onus of the change is placed on Mr. 
 Henry John Boulton, a member of the Legislative Assembly, 
 who was in England in 1854,about the same time as Sir F. Hincks. 
 Garneau (ed. of 1882), III., 275,376. In 1854, the total number 
 of representatives In the Assembly was 130—65 from each pro- 
 vince. 16 Vict., 0.152. 
 
 1 Messrs. Lafontaine and Caron to Mr. Draper, 1845. Tur- 
 
 cotte I., 202-10. 
 
 2 Mr. Baldwin resigned in 1851 on a vote of the Upper Canada 
 representatives adverse to the court of chancery, Turcotte II., 
 171-3. See remarks of Sir John A. Macdonald, Confederation 
 
 Debates, 30. 
 
 3 See resolution moved by Mr. (now Sir Hector) Langevin, 
 
 19th of May, 1858. 
 
52 CONSTITUTIONAL HISTORY. 
 
 vince did not possess the confidence of the majority of 
 the representatives of that section in the assembly.^ The 
 principle, however specious in theory, was not at all 
 practicable in legislation, and even its most strenuous 
 supporters too often found that it could not be conveni- 
 ently carried out in certain political crises. Its obser- 
 vance was always, to a great extent, a matter of political 
 convenience, and it was at last abandoned even by its 
 former advocates, who had urged it as the only means of 
 doing justice to each province, and preserving the equal- 
 ity of representation provided in the constitution of 1840.* 
 The demands of the representatives from Upper Canada 
 for additional representation were made so persistently 
 that the time arrived when the administration of public 
 affairs became surrounded with the gravest embarrass- 
 ment. Parties at last were so equally balanced on ac- 
 count of the antagonism between the two sections, that 
 the vote of one member might decide the fate of an ad- 
 ministration, and the course of legislation for a year or 
 series of years. From the 2l8t of May, 1862, to the end 
 of June, 1864, there were no less than five different mi- 
 nistries in charge of the public business.^ Legislation, 
 
 ^ See amendment moved by Mr. Cauchon to Mr. Thibaudeau*s 
 motion. Jour. Ass. (1858) 145,876. Also lb. (1856), 566. 
 
 2 Mr. J. Sandfield Macdonald was always one of its warmest 
 supporters, on the ground that it did away with the necessity of 
 a change in the representation, as advocated by Mr. Brow^n and 
 his followers from Upper Canada; but he virtually gave it up 
 on the separate school question in 1863, when a majority of the 
 representatives of his own province pronounced against a mea- 
 sure to which he was pledged as the head of the Macdonald- 
 Sicotte Ministry. Turcotte II., 477-487. See Dent II., 429. 
 
 » Sir J. A. Macdonald. Con. Deb., p. 26 ; Sir E. P. Tache, ih. 9. 
 
:__ UNION OF THE PROVINCES. 63 
 
 in fact, was at last practically at a dead-lock, and it bo- 
 came an absolute political necessity to arrive at a prac- 
 tical solution of difficulties, which appeared to assume 
 more gravity with the progress of events. It was at 
 this critical juncture of affairs that the leaders of the 
 government and opposition, in the session of 1864, came 
 to a mutual understanding, after the most mature consi- 
 deration of the whole question. A coalition government 
 was formed on the basis of a federal union of all the 
 British American provinces, or of the two Canadas, in 
 case of the failure of the larger scheme.^ The union of 
 the provinces had been discussed more than once in the 
 legislatures of British North America since the appear- 
 ance of Lord Durham's report, in which it was urged 
 with great force that *' it would enable the provinces to 
 co-operate for all common purposes, and above all, it 
 would form a great and powerful people, possessing the 
 means of securing good and responsible government for 
 itself, and which, under the protection of the British 
 Empire, might, in some measure, counterbalance the 
 preponderant and increasing influence of the United 
 States on the American continent." Lord Durham even 
 went so far as to recommend that the " bill should con- 
 tain provisions by which any or all of the other iN'orth 
 American colonies may, on the application of the legis- 
 lature, be, with the consent of the two Canadas or their 
 united legislature, admitted into the union on such terms 
 
 * Sir J. A. Macdonald, Conf. Deb., 26-27. "The opposition and 
 government leaders arranged a larger and a smaller scheme ; ii 
 the larger failed, then they were to fall back upon the minor, 
 which provided for a federation of the two sections of the pro- 
 vince." Sir E. P. Tach^, lb. 9. 
 
54 CONSTITUTIONAL HISTORY. 
 
 as may be agreed on between them." ^ The expediency 
 of a union was made a part of the programme of the 
 Cartier-Macdonald government in 1858, and expressly 
 referred to in the governor's speech at the close of the 
 session ; '^ but no practical result was ever reached until 
 the political necessities of the provinces forced them to 
 take up the question and bring it to a satisfactory issue. 
 It was a happy coincidence that the legislatures of the 
 lower provinces were about considering a maritime union 
 at the time the leading statesmen of Canada had com- 
 bined to mature a plan of settling their political diffi- 
 culties. The Canadian ministry at once availed them- 
 selves of this fact to meet the maritime delegates at their 
 convention in Charlottetown, and the result was the deci- 
 sion to consider the question of the larger union at Que- 
 bec. Accordingly, on the 10th of October, 1864, dele- 
 gates from all the British North American provinces 
 assembled in conference, in *' the ancient capital," and 
 after very ample deliberations during eighteen days, 
 agreed to seventy-two resolutions, which form the basis 
 of the Act of Union.^ These resolutions were formally 
 submitted to the legislature of Canada in January, 1865, 
 
 ^ Rep. pp. 116-21. He preferred a legislative union. 
 
 2 Conf.^Deb., Sir G. E. Cartier, p. 53 ; Ass. J. (1858) 1043. See 
 also Mr. Brown's speech (pp. 110-24), in which he claimed that 
 the essence of the federation measure was found in the ** joint 
 authority " resolutions of the Reform Convention of 1859. 
 
 ' For historical accounts of initiation of confederation see 
 Doutre, Constitution of Canada, 15 ; Gray, Confederation of Can- 
 ada, vol. i. ; Turcotte II., 518-59 ; Confederation Debates, 1865, 
 especially speeches of Sir E. P. Tach^, Sir J. A. Macdonald, Sir 
 G. E. Caitier, Hon. Geo. Brown, and Sir A. Campbell. Canada 
 
UUION OF THE PROVINCES. 65 
 
 and after an elaborate debate which extended from the 
 3rd of February to the 14th of March, both houses agreed 
 by very large majorities to an address to her Majesty 
 praying her to submit a measure to the Imperial Par- 
 liament " for the purpose of uniting the provinces in ac- 
 cordance with the provisions of the Quebec resolutions.' 
 Some time, however, had to elapse before the union 
 could be consummated, in consequence of the strong op- 
 position that very soon exhibited itself in the maritime 
 provinces, more especially to the financial terms of the 
 scheme. In New Brunswick, there were two general 
 elections during 1865 and 1866, the latter of which re- 
 sulted in the return of a legislature favourable to union, 
 
 was represented by 12 delegates, 6 for each province New 
 Brunswick by 7, Nova Scotia by 5. P. E. Island by 7, and New- 
 fundland by 2 ; each province had a vote, and the convention 
 sat with closed doors. The delegates : Canada, Sir E. P. lacM, 
 Messrs. J. A. Macdonald, Cartier, Brown, Gait, Campbell, Cha- 
 pais, McGeo, Langevin, Mowat, McDougall and Cockburn. ^ova 
 Scotia, Messrs. Tupper, Henry, McCully, Archibald and Dickey. 
 New Brunswick, Messrs. TiUey, Mitchell, Fisher, Steeves, Gray, 
 Chandler and Johnson. P. E. Island, Messrs. Gray, Coles Ha,- 
 viland. Palmer, Macdonald, Whelan and Pope- Newfoundland, 
 Messrs. Shea and Carter, 
 
 ' The address was agreed to in the legislative council by 45 
 contents to 15 non-contents. Jour. (1805, Ut sess.). p. 130 ; in the 
 assembly bv 91 yeas to 33 nays, Jour., pp. 192-3; Confed. Debates, 
 1865 p. 962. Sir E. P. Tach6 introduced the resolu*'ons in the 
 council ; Atty-Gen. (now Sir J. A.) Macdonali moved, and Atty.- 
 Gen. (afterwards Sir) G. E. Cartier, seconded them in the ns- 
 semblv. Four members of the government went to England 
 after the session of 1865, in reference to confederation, the cession 
 ofthe North-West, and other important questions. Jour., iab&, 
 2nd sess., 7-16. 
 
56 CONSTITUTIONAL HISTORY. 
 
 and finally to the adoption of the measure. The ques- 
 tion was never submitted to the people at the polls in 
 Nova Scotia, but the legislature eventually, after months 
 of hesitation, agreed to the union, in view of the facts 
 that it was strongly approved by the imperial govern- 
 ment as in the interests of the Empire, that both Canada 
 and INew Brunswick had given their consent, and that it 
 was proposed to make such changes in the terms as 
 would be more favoui'able to the interests of the mai-i- 
 time provinces. The result of the action of the two pro- 
 vinces in question was another conference at London in 
 the fall of 1866, when a few changes were made in the 
 direction of maritime interests, chiefly in the financial 
 terms, and without disturbing the important features of 
 the Quebec resolutions, to which Canada had already 
 pledged herself in the session of 1865.^ The provinces 
 of Canada, Kova Scotia, and New Brunswick, being at 
 last in full accord, through the action of their respective 
 legislatures, the plan of union was submitted on the 12th 
 of February, 1867, to the Imperial Parliament, where it 
 met with the wai-m support of the statesmen of all par- 
 ties, and passed without amendment in the course 
 of a few weeks, the royal assent being given on the 29th 
 of March.* The new constitution came into force on the 
 
 * The Westminster Palace Conference was held in London, in 
 December, 1866, and the result was the Union Act of 1867. 
 
 * Imp. Act, 30 and 31 Vict, c. 3. ** An Act for the Union of 
 Canada, Nova Scotia and New Brunswick, and the government 
 thereof, and for purposes connected therewith." Lord Car- 
 narvon, then secretary of state for the colonies, had charge of 
 the measure in the Lords. Mr. Adderley, under-secTetary in 
 the Commons. 185 K Hans 3 (Lords), 557, 804, 1011- (Com- 
 mons) 1164, 1310, 1701. 
 
UNION OF THE PROVINCES. 57 
 
 first of July, 186*7, and tho first parliament of tho united 
 provinces met on November of the same year * — the Act 
 requiring it to assemble not later than six months after 
 the union.* 
 
 The confederation, as inaugurated in 1867, consisted 
 only of the fv/ur provinces of Ontario, Quebec, Nova 
 Scotia and New Brunswick.^ By the 146th section of 
 the Act of Union, provision was made for the admission 
 of other colonies on addresses from the parliament of 
 Canada, and from the respective legislatures of New- 
 foundland, Prince Edward Island, and British Columbia. 
 Eupcrt's Land and the North-West Territory might also 
 at any time be admitted into the union on the address of 
 the Canadian Parliament. Tho acquisition of the North- 
 West Territory had been for years the desire of tho people 
 of Canada, and was the subject of consultation with the 
 imperial government in 1865, when Canadian delegates 
 went to England.'* During the first session of the par- 
 
 ^ Her Majesty's proclamation, giving effect to the Union Act, 
 was issued on the 22nd May, 1867, declaring that on and after 
 the 1st July, 1867, the provinces of Canada, Nova Scotia and 
 New Brunswick shall form and be one Dominion, under the 
 name of Canada. The proclamation also contained names of first 
 senators. Jour. House of Commons of Canada, V- VI. B. N. A. 
 Act, 1867, ss. 3 and 25- Lord Monck was the first governor-general 
 of the Dominion. Com. Jour. (1867-8), VII. Parliament met 
 on the 7th November, and Hon. J. Cockburn was elected first 
 speaker of the Commons. Hon. J. Cauchon was first speaker of 
 the Senate. 
 
 'See. 19. - 
 
 ' B. N. A Act, 1867, ss. 5-7. 
 
 * Can. Com. J., 1865, 5 sess., pp. 12-13. For papers on the sub- 
 ject of the acquisition of the territory, see Can. Sess. P., 1867-8, 
 No. 19, and p. 367 of Journals. 
 
58 CONSTITUTIONAL HISTORY. 
 
 liament of Canada, an address was adopted praying her 
 Majesty to unite Eupert's Land and the North-West Ter- 
 ritory to the dominion.^ This address received a favour- 
 able response, but it was found necessary in the first 
 place to obtain from the Imperial Parliament authority 
 to transfer to Canada the territory in question. An Act 
 was passed in the month of July, 1868,^ and in accord- 
 ance with its provisions, negotiations took place between 
 Canadian delegates and the Hudson's Bay Company for 
 the surrender of the North-West to the Dominion. An 
 agreement was finally arrived at for the payment of 
 £300,000 sterling on condition of the surrender of 
 Hupcrt's Land to the Dominion — certain lands and privi- 
 leges at the same time being reserved to the company. 
 The terms were approved by the Canadian Parliament 
 in the session of ISGO,"^ and an Act at once passed for the 
 temporary government of Eupert's Land and the North- 
 West Territories when united with Canada.* The Act of 
 1869 provided for the appointment of of a lieutenant-gov- 
 ernor and council, to make provision for the administra- 
 tion of justice, and establish such laws and ordinances as 
 might be necessary for peace and good government in 
 the North-West Territories. In the autumn of 1869 an 
 
 * Can. Com. J. (1867-8), 67. 
 
 2 Imp. Stat., 31 and 32 Yict., c. 105 (Can. Stat, for 18G9), en- 
 titled " An Act for enabling her Majesty to accept the surrender 
 upon terms of the lands, privileges and rights of the governor 
 and company of adventurers of England trading into Hudson's 
 Bay, and for admitting the same into the dominion of Canada.'* 
 
 * Can. Com. (18G9), pp. 149-56, in which the negotiations for 
 the transfer are set forth in the address to her Majesty, accept- 
 ing the terms of agreement for the surrender of the territory. 
 
 * Can. Stat. 32 and 33 Vict., c. 3. 
 
UNION OF THE PROVINCES. 59 
 
 order in council was passed appointing the first lieuten- 
 ant-governor of the territories, but the outbreak of an 
 insurrection among the French half-breeds prevented the 
 former ever exercising his executive functions.' It was 
 not until the appearance of an armed force in the country 
 in the fall of 1870 that the remnant of the insurgents fed 
 from the territory ; but, during the twelve months that 
 preceded, means had been taken by the Canadian authori- 
 ties to arrange terms on which the people of the Eed 
 Eiver might enter confederation. In the session of 1870, 
 the Canadian parliament passed an Act ' to establish and 
 provide for the government of Manitoba— a new province 
 formed out of the i^orth-West Territory, to which was 
 given representation in the Senate and House of Com- 
 mons. Provision was also made for a local or provincial 
 government on the same basis as existed in the older 
 provinces. On the 30th of June, 1870, by an imperial 
 order in council,^ it was declared that after the 15th of 
 July, 1870, the Xorth-West Territory and Eupert^s Land 
 should form part of the dominion of Canada. The legis- 
 lature of Manitoba was elected in the early part of 1871, 
 and the provincial government regularly and peacefully 
 established.* The members for the House of Commons 
 took their seats in t he session of the same year,^'— the 
 
 1 Hon. W. McDougall. . 
 
 2 33 Vict c. 3. The limits of the province were enlarged in 
 1881 ; Can.' Stat. 44 Vict, c. 14. See Kev. Stat, of Can., c. 47. 
 A)so Man. Stat, 44 Vict., C.C. 1, 12, 13, 14. 
 
 3 In accordance with s. 146, B. N. A. Act, 1867 ; Can. Stat.. 
 
 1872, p. Ixiii. 
 
 * Annual Kegister, 1878, pp. 18-19. 
 
 5 Com. J. (1871), 154, 221, 226. Only three members were re- 
 turned ; a new election in one constituency being requisite ou 
 account of a tie. Jour. p. 152. 
 
60 CONSTITUTIONAL HISTORY. 
 
 new senators in the sessi'^n of 1872/ When we come to 
 consider the provincial constitutions we shall refer to 
 the local government of Manitoba as well as to the pro- 
 visions made in several statutory enactments for the 
 administration of affairs in the North- West. 
 
 In accordance with addresses from the Canadian par- 
 liament, and the legislative council of British Columbia, 
 that colony was formally admitted into the confederation 
 by imperial order in council declaring that from and 
 after the 20th of July, 1871, the colony should form part 
 of the dominion. The terms of union provided for re- 
 presentation in the Senate and House of Commons, and 
 responsible government in the province, as well as for 
 the construction of a transcontinental railway.' The 
 members for the province took their seats in the Senate 
 and House of Commons during the session of 1872.^ 
 
 The province of P. E. Island, had been represented in 
 the Quebec conference of 1864, but, owing to the opposi- 
 tion that existed to the union for some years, it was not 
 until the first session of 1873 that both the parliament of 
 Canada and the legislature of the island passed addresses 
 for the admission of the province into the confederation 
 on certain conditions which included representation in 
 the Senate and House of Commons, and the continuance 
 of the local government on the same basis as in the other 
 provinces.* A bill was also passed during the same ses- 
 
 ^ 5 Sen. J. (1872), 18. 
 
 ' Can. Com. J. (1871) ; 193-99 ; Pari. Deb., 1871. Can. Stat, for 
 1872, p. Ixxxiv. Also, as to preparatory eteps, Can. Seas. Pap., 
 No. 59, 1867-8, pp. 3-7. 
 
 « Sen. J. (1872) 18; (>)m. J. (1872) 4. The elections . for the 
 Commons were held in accordance with 34 Vict-, c. 20. 
 
 * Can. Com. J. (1873) 403. 
 
UNION OF THE PROVINCES. 61 
 
 sion, — ia anticipation of her Majesty's government 
 taking the necessary steps to admit the island — pro- 
 viding that certain Acts should come into force in the 
 province as soon as it was united to Canada.^ By an 
 imperial order in council, it was declared that from, and 
 after the first of July, 18*73, the colony should form part 
 of the dominion.' The members for the two houses took 
 their seats for the first time dui'ing the second session of 
 1873.3 
 
 Newfoundland was also represented at the Quebec con- 
 vention of 1864, but the general elections of 1865 re- 
 suited adversely to the union.* Subsequently the House 
 of Commons, in the session of 1869, went into committee 
 on certain resolutions providing for the admission of 
 Newfoundland, and an address was passed in accordance 
 therewith. The union was to take effect on such day as 
 " Her Majesty by order in council, on an address to that 
 effect, in terms of the 14:6th section of the British North 
 American Act, 1867, may direct;"^ but the legislature 
 of Newfoundland has so far refused to sanction the neces- 
 sary *address. * 
 
 In response to an address of the parliament of Canada, 
 in the session of 1878, an imperial order in council was 
 passed on the 31st of July, 1880, declaring that " from 
 and after the 1st of September, 1880, all British terri- 
 tories and possessions in North America, not already 
 included within the dominion of Canada, and all islands 
 
 1 36Vict,c.40. 
 
 * Can. Stat, for 1873, p. ix. 
 
 * Sen. J. 1873, 2nd session, p. 9. Com. J., lb, pp. 2-4. 
 
 * Turcotte II., 562. 
 
 * Can. Com. J. (1869), 221. 
 
62 CONSTITUTIONAL HISTORY. 
 
 adjacent to any of such territories or possessions shall 
 (with the exception of the colony of Newfoundland and 
 its dependencies) become and be annexed to and form 
 part of the said dominion of Canada; and become and be 
 subject to the laws, for the time being in force in the 
 said dominion, in so far as such laws may be applicable 
 thereto." This order in council was considered neces- 
 sary to remove doubts that existed regarding the north- 
 erly and north-easterly boundaries of the North- West 
 Territories and Eupert's Land, transferred to Canada by 
 order of council of the 23rd of June, 18Y0, and to place 
 beyond question the right of Canada to all of British 
 North America, with the exception of Newfoundland.^ 
 
 1 Can. Com. J. (1878), 256-7 ; Can. Stat. 1881, p. ix, Order in 
 Council. Can. Hans. (1878), 2386. (Mr. Mills.) 
 
CHAPTER Yir. 
 
 Constitution of the General Government and 
 
 Parliament. 
 
 The Dominion^ of Canada has, therefore, been extended 
 since 1867 over all the British possessions between the 
 Atlantic and Pacific oceans to the north of the United 
 States— the territory under the jurisdiction of the New- 
 foundland government alone excepted. The seven pro- 
 vinces embraced within this vast area of territory are 
 united in a federal union, the terms of which have been 
 arranged on *' principles just to the several provinces." 
 
 1 The title of Dominion (s- 3, ofB.N. A. Act, 1867), did not 
 appear in the Quebec resolutions. The 71st Res. i& to the effect 
 that " Her Majesty be solicited to determine the rank and name 
 of the federated Provinces." See remarks of Sir J. A. Mac- 
 donald, Confed. Deb., p. 43. The name was arranged at the con- 
 ference held in London in 1866, when the union bill was finally 
 drafted. This was not the first time the title was applied to 
 Canada; we find in the address of the old Colonies assembled 
 at Philadelphia, 1774, strong objection taken to the Act of 1774, 
 by which ** the dominion of Canada is to be so extended, mo- 
 delled and governed." Christie L, 9. The old commonwealth 
 of Virginia was known as ** the Old Dominion." 
 
64 CONSTITUTIONAL HISTORY. 
 
 In order "to protect the diversified interests of the 
 several provinces, and secui'e efficiency, harmony, and 
 permanency in the working of the union," the system of 
 government, as set forth in the Act of 1867, combines in 
 the first place a general government, " charged with mat- 
 ters of common interest to the whole country," and local 
 governments for each of the provinces, ** charged with 
 the control of local matters in their respective sections." 
 With a view to the perpetuation of our connection with 
 the mother country, the promotion of the best interests 
 of the people of these provinces,'* the constitution of the 
 general government has been so framed as "to follow 
 the model of the British constitution, so far as our cir- 
 cumstances will permit." Accordingly, " the executive 
 authority or government " is vested in express terms in 
 the " Sovereign of the United Kingdom of Great Britain 
 and Ireland," and is administered " according to the well 
 understood principles of the British Constitution." ^ 
 
 The sovereign is represented in the dominion by a 
 governor-general, appointed by letters patent under the 
 great seal. His jurisdiction and powers are defined by 
 the terms of his commission, and by the royal instruc- 
 tions which accompany the same.* He holds office during 
 the pleasure of the Crown, but he may exercise his func- 
 tions for at least six years from the time he has entered 
 
 * These quotations are from the Quebec resolutions, Can. Com. 
 J. (1865), 203. The preamble of the B. N. A. Act, 1867, declares, 
 " with a constitution similar in principle to that of the United 
 Kingdom." — Sec- 9. ** The executive government and authority 
 is hereby declared to continue and be vested in the Queen." 
 
 * See App. at end of this work for B. N. A, Act, 1867. 
 
THE GENERAL GOVERNMENT. 65 
 
 on hi8 duties.* In all his communications with the im- 
 perial government, of which he is an officer, he ad- 
 dresses the secretary of state for the colonies, the cons- 
 titutional avenue through which he must approach the 
 sovereign.' His first duty, when he enters on his duties, 
 is to take the necessary oaths of allegiance and office 
 before the chief justice, or any other judge of the supreme 
 court of the dominion, and at the same time to cause his 
 commission to be formally read.^ 
 
 In view of the larger measure of self-government con- 
 ceded to the dominion of Canada by the imperial legisla- 
 tion of 1867— in itself but the natural sequence of tho 
 new colonial policy inaugurated in 1840 -the letters 
 patent and instructions, which accompanied tho com- 
 mission given to the governor-general in 1878, have been 
 modified and altered in certain material features. The 
 measure of power now exercised by the government and 
 parliament of Canada is not merely ''relatively greater 
 than that now enjoyed by other colonies of the empire, 
 but absolutely more than had been previously intrusted 
 to Canada itself, dm^ing the administration of any for- 
 
 1 Colonial Reg. sec 7, Col. Office List, 1883, p. 254. Todd, 90. 
 Lord Lome held the position for only five years. Lord Dufferm 
 was appointed in the spring of 1872, and retired in the fall of 
 
 1878. 
 
 3 Todd, 9<. ; Col. Reg., sec 165, p. 265. ^ , q^^ -vr . . 
 
 3 Instructions to guvernor-general, Can. Sess- P. 1870, iNo. 14. 
 The Marquis of Lome was sworn in on the 25th of November 
 1878 in the old Province Building, Halifax, by acting Chief 
 Justice Ritchie. Annual Register for 1878, pp. 255-7. The 
 oath of office is given in same account of ceremomes on that 
 
 occasion. 
 5 
 
gg CONSTITUTIONAL HISTORY. 
 
 mer governor-general." ' Without entering at length into 
 this question, it is sufficient for present purposes to no- 
 tice that the governor-general is authorized, among other 
 things, to exercise all powers lawfully belonging to the 
 Queen, with respect to the summoning, proroguing or 
 dissolving of parliament ; ' to administer the oaths of alle- 
 giance and office ; ' to transmit to the imperial govern- 
 ment copies of all laws assented to by him or reserved 
 for the signification of the royal assent; ' to administer 
 the prerogative of pardon;^ to appoint all ministers of 
 state, judges, and other public officers, and to remove or 
 suspend them for sufficient cause.^ He may also appomt 
 a deputy or deputies to exercise certain of his powers 
 and functions.^ He may not leave the dominion upon 
 any pretence whatsoever without having first obtamed 
 permission to do so through one of the principal secre- 
 taries of state. « In case of the death, incapacity, 
 
 1 The modifications in these official instruments were thp> 
 result of the mission of Mr. Blake, whilst minister of justice, lo 
 En-land in 1S76. Tor full information on this subject, see Todd 
 76,;* seq., and Can. Sess.. P. (1877), No. 13 ; also chapter on bills 
 in Bourinot's Parliamentary Practice and Procedure For roya 
 commission, letters patent, and instructions to the Marqms of 
 Lome, Sess. P. (1879), No. 14 ; to Lord Monck, Sess. P. (1867-8), 
 No. 22 ; also to Lord Dufferin, Can. Com. J. (18/3), So. 
 
 2 Letters-Patent, 1878, s. 5. 
 
 3 Instructions, 1878, s. 2. 
 * lb. s. 4. 
 
 5 Ih. s. 5. See Todd, 271. 
 « Letters Patent, s.s. 3, 4. 
 
 ' Jh. s. 6 ; also B. N. Act, 1867, 8. 14. See chapter vi., lor ap- 
 pointment of deputy-governors since 1840. 
 8 Instructions, s. 6. 
 
THE GENERAL GOVERNMENT. 67 
 
 removal ^ or absence from Canada of the governor-general, 
 his powers are vested in a lieutenant-governor or adminis- 
 trator appointed by the Queen, under the royal sign- 
 manual ; or, if no such appointment has been made, in 
 the senior officer in command of the imperial troops in 
 the dominion. The adminish*<»tor must also be formally 
 sworn, as in the case of the governor-general.^ 
 
 The senior executive councillor frequently adminis- 
 tered the government in the absence of the governor- 
 general before the union of 1840.^ But whenever the 
 lieutenant-governor was in the country, during the 
 period in question, it was his duty to administer the 
 government.^ Since 1840, in the old province of Canada, 
 and in the dominion, the government has been adminis- 
 tered in the absence of the governor-general by the senior 
 officer in command of the imperial troops in accordance 
 with the letters patent issued by the Crown.^ 
 
 ^ It is always competent for the imperial government to re- 
 move the governors of colonies, who are appointed during plea- 
 sure. See memorable case of Governor Darling of Victoria. 
 Eng. Com. P. 1866, vol. 50, p. 701 ; Todd, 99. 
 
 ^ Letters-patent, 8. 7. Canada Gazette y Dec. 30, 1882. 
 
 ^ In 1805, when Sir R. Shore Milnes, lieutenant-governor, went 
 to England, Mr. Dunn assumed the government a3 *' President 
 and Commander-in-Chief;" he was one of the judges, ami .an 
 executive councillor. Christie I., 259. On the death of the Duke 
 of Richmond, in 1819, the government devolved on Mr. Mouk, 
 as senior executive councillor. Christie III., 322. 
 
 * General Prescott on departure of Lord Dorchester in 1 796, 
 Christie I., 173 ; Sir R. Shore Milnes in 1799, lb. 203 ; Sir F. Bur- 
 ton in 1824, lb. III. 55. No such official now exists in the domi- 
 nion, the functions of the present lieutenant-governors being 
 confined to the provinces to which they are appointed. 
 
 ^ In 1841, Sir R. D.Jackson; 1845, Lord Cathcart ; 1853, Lieut- 
 
68 CONSTITUTIONAL HISTORY. 
 
 The constitution provides for the appointment of a 
 council to aid and advise the representative of the sov- 
 ereign in the government of Canada. This body is styled 
 the Queen's Privy Council, and its members are chosen 
 and may be removed at any time by the governor- 
 general.^ In accordance with the principles of the British 
 constitutional system, this council represents the views 
 of the majority of the people's representatives in parlia- 
 ment, and can only hold office as long as its members 
 retain the confidence of the House of Commons. Tho 
 name chosen for this important body has been borrowed 
 from that ancient institution of England, which so long 
 discharged tho functions of advising the supreme execu- 
 tive of the kingdom in the government of the country.* 
 Since the revolution of 1688, the privy council of Eng- 
 land has had no longer tho direction of public affairs, 
 though it has still an existence as an honorary body, 
 limited in numbers, only liable to be convened on special 
 occasions, and only in theory an assembly of state ad- 
 visers.^ The system which has grown up in England 
 since 1688, and which has obtained its most perfect 
 realization during the past half century, now entrusts 
 the practical discharge of the functions of government 
 to a cabinet council, which is technically a committee of 
 
 Gen. Eowan; 1857, Sir W. Eyre; 1860, Lieut.-Gen. Williams; 
 1865. Lieut.-Gen. Michel; 1874, Major-Gen. O'Grady Haly ; 
 1878, 1881-2, and 1882-3, Sir P. L. McDougall. (See Canada Gazette, 
 Dec. 30, 1882.) 
 
 ^ B. N. A. Act, 1867, s. H. 
 
 * Blackstone's Com. I., 229-234. 
 
 » Todd, Pari. Gov. in England, II., 52, 53. 
 
THE GEKEEAL GOVEIiTsMENT. GO 
 
 the priv}^ council.* This cabinet is the ruling part of 
 the ministry or administration. The term "ministry" 
 properly includes all the ministers, but of these only a 
 select number — usually about twelve, brt liable to varia- 
 tion from time to time even in the same administration 
 — constitute the inner council of the Crown and incur 
 the higher responsibilities whilst they exercise the higher 
 powers of government. The rest of the ministry, al- 
 though closely connected with their brethren in the 
 cabinet, occupy a secondary and subordinate position.* 
 In Canada, however, there is as yet no such distinc- 
 tion ; for the term '' ministry" or ** cabinet" has been 
 indifferently applied to those members of the privy 
 council who might bo summoned by the governor- 
 general to aid and advise him in the government of the 
 do''ninion. But in the session of 1887 an act was passed 
 with the view of initiating the English system of 
 having political heads of departments, who will com- 
 mence their official career by holding certain offices 
 which will not necessarily give them a position in the 
 
 ^ Todd IL, 144. The cabinet council or ministry who hold 
 the principal offices of state, are first sworn in as privy council- 
 lors. May II., 79, Macaulay, c. 20. 
 
 ^ Taswell-Langmead, Cons. Hist., p. 679. And not only is 
 the existence of the cabinet council unknown to the law, but 
 the very names of the individuals who may comprise the same 
 at any given period are never officially communicated to the 
 public. The London Gazette announces that the Queen has been 
 pleased to appoint certain privy councillors to fill certain high 
 offices of state, but the fact of their having been called to seats 
 in the cabinet council is not formally promulgated, Todd II-, 
 144. 
 
'TO CONSTITUTIONAL HISTORY. 
 
 cabinet.^ The principles that prevail in the formation 
 of a cabinet in England obtain in the case of an admin- 
 istration in Canada. Its members must have places in 
 cither house of parliament, but the majority should, and 
 necessarily do, sit in the commons. 
 
 In the old province of Canada, the cabinet was always 
 known officially as the executive council.^ In 1865, this 
 body comprised in all twehe members, six from each 
 province : two attorneys-general, two solicitors-general, 
 a receiver-general (also minister of militia), minister of 
 finance, commissioner of crown lands, minister of agri- 
 culture and statistics, commissioner of public works, 
 president of council, provincial secretary, and post-mas- 
 ter-general.'^ In all the provinces of the dominion, the 
 official body advising the lieutenant-governor is still 
 authoritatively recognized as the executive council.^ 
 
 In 1867, a new ministry of thirteen members was 
 formed under the legal title of the privy council of 
 Canada, in which it was found expedient > consider the 
 claims of the several provinces of the dominion to repre- 
 sentation in the first cabinet. Accordingly, Ontario had 
 
 * Remarks of Sir J. A. Macdonald on the Department of Trade 
 and Commerce, Com. Hans. [1871], 862, 863. See infra, p. 74. 
 Up to the present time (April 1888), no steps have been taken 
 to give efiect to the laAv on the statute book. 
 
 2 Can. Cons. Stat., pp. 168, 169. 
 
 3 Confed. Debates, 1865, p. vii. Sir E. P. Tach^ was the pre- 
 mier of the Tache-^Iacdonald ministry, and held two offices, 
 receiver-general and minister of militia. 
 
 * B. N. A. Act, 1867, s.s. 63, 61 ; 45 Vict., c. 2, Quebec Stat. ; c. 
 13, Ont. Rev. Stat, ; Man. Cons. Stat., c. 6 ; 33 Vict^ c. 3, s. 7, 
 Can. Stat. ; British Colum. Cons. Stat., c. 4, s.s. 2, 3 ; P. E. Island, 
 Dom. Stat, 1873, p. xii. -- 
 
THE GENERAL GOVERNMENT. 71 
 
 five representatives in the privy council ; Quebec, four, 
 one of them a representative of the English section oi 
 the population ; Nova Scotia, two ; Xew Brunswick two. 
 The departments were reorganized, and new ones estab- 
 lished, to meet the changed conditions of things. The 
 privy council was composed of the following ministers : ' 
 minister of justice and attorney-general,^ minister oi 
 militia,^ minister of customs,^ minister of finance,^ minis- 
 ter of public works,^ minister of inland revenue/ minis* 
 ter of marine and fisheries,^ postmaster-general,^ minister 
 of agriculture,^^ secretary of state of Canada,^^ receiver- 
 general,^^ secretary of state for the provinces, president 
 of the privy council. ^^ In 1873, on a change of govern- 
 
 ^ Annual Register, 1S78, pp. 9-10 ; Canada Gazette. Their 
 salaries and designation are given in 31 Vict, c. 33, schedule. 
 Salaries of ministers were subsequently increased by 31 Vict., 
 
 C. ox, S. ^. 
 
 ^ Functions of department set forth in 31 Vict, c. 39. 
 
 3 31 Vict.,c.4a 
 
 * 31 Vict., c. 43. 
 
 ^ 31 Vict, c. 5 ; 32-33 Vict, c 4, and other acts relating to ex- 
 penditures and revenues. 
 
 « 31 Vict., c. 12. See i7^/ra, p. 73. 
 
 7 31 Vict, c. 49. 
 
 ^ 31 Vict, c. 57. In 1877, the management of certain piers, 
 harbours, and breakwaters, was transferred from the depart- 
 ment of public works to that of marine and fisheries. 40 Vict, 
 c. 17. 
 
 » 31 Vict, c. 10 ; 38 Vict, c. 7. 
 
 ^° 31 Vict, c 53. 
 
 " 31 Vict,c.42. 
 
 " The department of receiver-general was not provided for by 
 special act, but his duties are defined and referred to in various 
 acts. See 31 Vict, c. 5, etc. ' 
 
 ^^ Neither of those ofiicea was provided for by special act 
 
T2 CONSTITUTIONAL HISTORY. 
 
 tnent, the number of ministers was increased to fourteen, 
 two of them without portfolios/ but by subsequent re- 
 arrangement the number was reduced to thirteen as be- 
 fore, and P. E. Island, now a j^art of the confederation, 
 was represented by one member in the cabinet.^ On 
 two occasions since 18^8, the speaker of the Senate 
 received a seat in the council, though without portfolio,^ 
 and the number of members of government was conse- 
 quently increased again to fourteen. Since 1867, 
 several changes have taken jilace in the organization of 
 the departments. In 1873, the office of secretary of state 
 for the provinces was abolished, and a department of the 
 interior organized, with the control and management of 
 Indian affairs, dominion lands, geological survey, and 
 some other matters previously entrusted to the secretary 
 of state for Canada. The geological survey of Canada 
 forms a branch, and is under the charge of a director 
 who must necessarily be a man of high scientific attain- 
 ments.* The minister of the interior or the head of any 
 other department appointed for this purpose by the gov- 
 ernor in council, shall bo the superintendent-general of 
 
 1 Hon. E. Blake and Hon. R. W. Scott, Annual Register, 1878, 
 p. 30. 
 
 * lb. 30-31. P. E. Island has at present no representative in 
 the cabinet; nor have Manitoba and British Columbia. The 
 number of ministers in the cabinet is now 15 (in 1888), of whom 
 two are without portfolios. 
 
 8 Hon. Mr. Wilmot, in 1878 ; Hon. Mr. (now Sir David) Mc- 
 Pherson, in 1880, on appointment of former to lieutenant-gover- 
 norship of New Brunswick. See Canada Gazette, Nov'. 9, 1878 ; 
 J6., Feb. 12, 1880. _- __ -^ __ ____ 
 
 * Rev. Stat, of Can., o. c. 22, 23. \ ^ T~ 
 
THE GENERAL GOVERNMENT. "ra 
 
 Indian affairs.^ Tho department of secretary of state 
 for Canada remains in existence, bat its functions are 
 confined to state correspondence, the preservation of all 
 state records, and papers not specially transferred to 
 other departments, the registration of all instruments 
 of summons, proclamations, commissions, letters patent, 
 writs, and other documents issued under tho great seal 
 and requiring to be registered.- A department of public 
 printing and stationery was organized in 1886, and ia 
 under tho management for the time being of the secretary 
 of state.^ In 18*7 9, the office of receiver-general was 
 abolished, and the duties assigned to the finance minis- 
 ter.^ At the same time the department of public works 
 was divided into two sej^arato departments, presided 
 over by two ministers — one designated minister of rail- 
 ways and canals ; the other, minister of public works. 
 These changes were rendered necessary in the depart- 
 ment of the interior and that of public works ; in the 
 first place, by the transfer of the great North-West Terrl- 
 
 * Rev. Stat, of Can. c. 43. The Premier, Sir J. A. Macdonald, 
 while president of the council, held the office for some years. 
 Pari. Companion for 1885. 
 
 2 31 Vict., 0, 42; Rev. Stat, of Can., c. 26. 
 » 49 Vict., c. 22; Rev. Stat, of Can., c. 27. 
 
 * 42 Vict., c. 7 ; Rev. Stat, of Can., c. 28. Can. Hans. (1879), 
 1241. In the session of 1878, when the Mackenzie administra- 
 tion was at the head of affairs, a bill passed the Commons to 
 abolijh the receiver-generalship, and to subdivide the depart- 
 ment of justice, Eo that there would bo an attorney-general 
 with a seat in the cabinet, presiding conjointly with the 
 minister of justice over the Dominion law department Can. 
 Hans. (1878), 1204,1584,1811. It was, however, postponed in 
 the Senate. Sen. Deb. (1878), 681-695. -r-,'--^^ 
 
•74 CONSTITUTIONAL HISTORY. 
 
 tory to the Dominion, with its immense area of land 
 and numerous tribes of Indians ; and in the second place, 
 by the very large additional amount of responsibility 
 thrown on the other department by the construction of the 
 Canada Pacific Eailway, which had been at that time 
 undertaken by the government. In 1884, the depart- 
 ment of marine and fisheries was divided into a depart- 
 ment of marine, and a department of fisheries, presided 
 over by one minister and two deputies.^ 
 
 In the session of 1887 a new scheme of organization 
 was provided for several departments. In the first place, 
 there shall be a department of trade and commerce, 
 presided over by a minister. Then the departments of 
 customs and inland revenue respectively are to be 
 placed under the control and supervision of the minis- 
 ter in question or of the minister of finance, as the 
 governor-in-council from time to time directs.^ The 
 governor-in-council may appoint also a controller of 
 customs and a controller of inland revenue, each of 
 whom shall, under the general instructions of the 
 minister first mentioned, be the parliamentary head of 
 these departments.^ It is also provided that the 
 governor-in-council may appoint an officer who shall bo 
 called the solicitor-general of Canada, and who shall 
 assist the minister of justice in the counsel work of the 
 department of justice. He may hold a seat in either 
 house of parliament, provided he is elected while he 
 holds such ofiice and is not otherwise disqualified.* 
 
 —II ,1 — — J 
 
 1 47 Vict., c. 19; Rev. Stat, of Can., c. 25. 
 250-51 Vict. c. 10. ...,.._,___.- 4_^_„_.v.i^.,^ ^_, ^' ,_/ ;' -v :/ 
 '50-51 Vict, ell. " llC^^^r^^^^^^ - 
 
 * lb., c. 14. These several statutes have not been enforced up 
 to the time of the appearance of this work. 
 
CHAPTEE YIIL 
 
 CONSTITUTION OP PARLIAMENT. 
 
 The Constitution of 1867 provides that there shall bo 
 " one Parliament for Canada, consisting of the Queen, 
 an Upper House, styled the Senate, and the House of 
 Commons."^ Wo have already seen that the sovereign 
 is represented by a governor-general who, in person or 
 by deputy, opens and prorogues parliament.^ He also 
 assents to all bills in her Majesty's name,^ and may at 
 any time dissolve parliament,^ a prerogative of the 
 Crown exercised with great caution under the advice of 
 the privy council. In the times before the concession 
 of responsible government, when contests between the 
 executive and the assemblies were chronic, the governors 
 dulled the edge of this important instrument by its too 
 
 iB.N.A. Act, 1867, s. 17. 
 
 ^ See chap. vi. Bourinot's Parliamentary Practice and Pro- 
 cedure. 
 
 ^ Chapter on bills, /6i(f. 
 
 * Governor-General's letters-patent, 1878, s. 5 ; B. N. A. Act, 
 1867,8.50. 
 
T6 CONSTITUTIONAL HISTORY. 
 
 frequent use.* Under the present system of constitu- 
 tional government, such a condition of things cannot 
 possibly occur. The responsibility of deciding whether 
 in any particular case a dissolution should be granted, 
 must, under our constitution, " rest absolutely with the 
 representative of the sovereign."^ In coming to a con- 
 clusion, he is guided by considerations of public interest, 
 which will enable him always to judge of the value of 
 the advice given him by his constitutional advisers.^ 
 Occasions, however, can very rarely arise when he 
 should feel himself bound, for powerful public or con- 
 stitutional reasons, to refuse the advice of his council; 
 but there can be no doubt that it is the right and duty of 
 the Crown, under any circumstances, to control the 
 
 ^ From 1808 to 1810, the Quebec assembly was dissolved no 
 less than three times by Sir James Craig. See his remarkable 
 speech on one occasion, in which he soundly rated the as- 
 sembly before dissolving it. Christie I., 283. 
 
 2 Sir T. E. May, New South Wales Leg. Ass. V. and P., 1877- 
 78, vol. i., p. 451 ; Todd, Pari. Gov. in the Colonies, 561. 
 
 ^"The responsibility, which is a ^rave one, of deciding 
 whether in any particular case it is right and expedient, 
 having regard to the claims of the respective parties in parlia- 
 ment, and to the general interests of the colony, that a dissolu- 
 tion should be granted, must, under the constitution, rest with 
 the governor. In discharging this responsibility, he will, of 
 course, pay the greatest attention to any representations that 
 may be made to liim by those who, at the time, are his con- 
 stitutional advisers; but, if he should feel himself bound to 
 take the responsibility of not following his ministers* recom- 
 mendation, there can, I apprehend, be lo doubt that boti^ law 
 and practice empower him to do so." Sir Michael' Hicks- 
 Beach, Sec. of S. for Colonies ; New Zealand Pari P., 1878; App. 
 A. 2. p. 14 : New Zealand Gazette, 1878. pp. 911-14. 
 
CONSTITUTION OF PARLIAMENT. 77 
 
 exercise of one of the most valued prerogatives of tlio 
 sovereign. The relations between the representative 
 of the Crown and his advisers are now so thoroughly 
 understood, that a constitutional difficulty can hardly 
 arise which cannot be immediately solved. If the 
 Crown should feel compelled at any time to resort to 
 the extreme exercise of its undoubted prerogative right 
 of refusing the advice of its constitutional advisory coun- 
 cil of ministers, they must either submit or immediately 
 resign and give place to others who will be prepared to 
 accept the full responsibility of the sovereign's action, 
 which must be based on "* ^.e broadest grounds of the pub- 
 lic welfare.^ 
 
 In the constitution of the Senate adequate security 
 has been given to each of the provinces for the protec- 
 tion of its peculiar local interests, *'a protection which 
 it was believed might not be found in a house where the 
 representation was based upon numbers only."^ Conse- 
 quently, the dominion was divided into three sections, 
 representing distinct interests, — Ontario, Quebec and 
 the maritime provinces of Nova Scotia and New Bruns- 
 wick — to each of which was given an equal representa- 
 tion of twenty -four members. Provision was also made 
 for keeping the representation for the maritime pro- 
 vinces at the same number, after the entrance of Prince 
 Edward Island.^ An exception however, was made in 
 
 ^See mem. of Lieut-Governor Robitaille, Oct. 30, 1879, in a 
 Quebec constitutional crisis, in which he refused a dissolution 
 to Mr. Joly, who thereupon resigned. Todd, 565. See also lb, 
 573. 
 
 « Sir A. Campbell, Confed. Deb., p. 21. 
 
 • See infra f p. 79. -*^. 
 
TS CONSTITUTIONAL HISTORY. - -~— 
 
 the case of Newfoundland, " which has sectional claims 
 and interests of its own, and will, therefore, have a 
 separate representation in the Senate."^ Special regard 
 has also been had to the peculiar situation of the pro- 
 vince of Quebec, where the electoral divisions that existed 
 previous to 1867 are maintained, and a senator must 
 consequently have his real property qualification or be 
 resident in the district for which he is appointed, — a 
 provision that was not considered necessary for the other 
 provinces.- 
 
 When Parliament met for the first time in 1861, the 
 Senate consisted of 72 members, called senators — 24 for 
 Ontario, 24 for Quebec, and 24 for Nova Scotia and New 
 Brunswick, these two maritime provinces being consider- 
 ed one division.^ Subsequently, the provinces of Manitoba 
 and British Columbia were admitted into the confedera- 
 tion, and the number of senators has been increased to 78 
 in all — Manitoba having at present three members * and 
 
 ^ Sir J. A. Macdonald, Confed. Deb. 35. 
 
 ' Hon. G. Brown said in the debate on Confederation (p. 89) : 
 " Our Lower Canada friends felt that they had French Cana- 
 dian and British interests to be protected, and they conceived 
 that the existing system of electoral divisions would give pro- 
 tection to these separate interests." The principal object of 
 this provision was to give a representation to the English- 
 speaking population of Lower Canada, in the Eastern Townships 
 especially, which have now tw^o representatives in the Senate. 
 
 3 B, N. A. Act, 1S67, ss. 21 and 22. 
 
 * Under Dom Stat. 33 Vict. c. 3, s. 3, (Rev. Stat, of Can. c. 47,) 
 Manitoba is to have two members until it shall have a popula- 
 tion of 50,000, and then it shall have three ; and four, when 
 the population has reached 75,000 souls. The census of 1881 
 gave Manitoba a population of 65,954 and consequently another 
 member was added immediately to the Senate. 
 
CONSTITUTION OF PARLIAMENT. 79 
 
 British Columbia three.* Prince Edward Island has 
 also entered the union since 1867 and has a representa- 
 tion of four members, but as this province is comprised 
 in the maritime division of the Senate its admission has 
 not increased the number of senators in the aggregate.^ 
 Provision was made in 1887 for the addition of two 
 senators to represent the North-AVest Territories.^ The 
 senators, who are nominated by the Crown, must each 
 be of the full age of 30 years, natui'al-born or natural- 
 ized subjects, resident in the province for which they are 
 appointed, and must have real and personal property 
 worth $4,000 over and above all debts and liabilities. 
 In the case of Quebec a senator must have his real 
 property qualification in the electoral division for which 
 he is appointed, or be resident therein.* Every senator 
 must take the oath of allegiance and make a declaration 
 of his property qualification before taking his seat.^ 
 
 The Queen may, on the recommendation of the gov- 
 ernor-general, direct that three or six members be 
 added to the Senate, representing equally the three 
 
 1 Can. Com. J. (1871) 195. Dom. Stat for 1872, Order in 
 Council, Ixxxviii. 
 
 2 British N. A. Act, 1867, s. 147. This section provides that 
 after the admission of P. E. Island, " the representation of Nova 
 Scotia and New Brunswick in the Senate shall, as vacancies 
 occur, be reduced from twelve to ten members respectively, and 
 the representation of each of those provinces shall not be in- 
 creased at any time beyond ten, except under the provisions of 
 this act for the appointment of three or six additional senators 
 under the direction of the Queen." 
 
 = 50-5iyict.,c.3. '''' ' ''^ ''' ,^:.\.^--:r^^^'l 
 
 * B. N. A. Act, 1867, s. 23. See app. to this work. 
 ^^ »i6., S.128. ,^ 
 
80 CONSTITUTIONAL HISTORY. 
 
 divisions of Canada. In case of any such addition being 
 made, the governor-general shall not summon any new 
 member *' except on a further like direction by the 
 Queen on the like recommendation until each of the 
 three divisions of Canada are represented by 24 members 
 and no more."^ The number of senators is fixed by the 
 28th section of the British North America Act, 1867, at 
 t8, but on reference to the 147th section, it will be seen 
 that it is provided that " in case of the admission of 
 Newfoundland the normal number of senators shall be 
 76, and their maximum number shall be 82." Senators 
 hold their seats for life, subject to the provisions of this 
 act, but they may, at any time, resign by writing under 
 their hand, addressed to the governor-general. ^ The 
 place of senator shall become vacant, if he is absent for 
 two consecutive sessions, if he becomes a bankrupt, or 
 insolvent, or applies for the benefit of any law relating 
 
 1 B. N. A. Act, ss. 26-27. See Sen. Deb. (1877) 84-94; Com. 
 Deb. (1877) 371, lor discusi^ion on a case in which the Queen re- 
 fused to appoint additional senators under section 29. Also 
 Todd's Pari. G'^, in the Colonies, p. 164. The Earl of Kimber- 
 ley, in his despatch on the subject, stated that her Majesty 
 could not be advised to tako the responsibility of interfering 
 with the constitution of the Senate, except upon an occasion 
 when it had been made apparent that a difference had arisen 
 between the two houses of so serious and permanent a character 
 that the government could not be carried c without her inter- 
 vention, and when it conld be shown that lid limited creation 
 of senators allowed by the act would apply "n adequate 
 remedy." The Senate, on the receipt of this d ^ a,tch, passed 
 resolutions approving of the course pursued by her Majesty's 
 government. Jour. p.p. 130-4. 
 
 ' Ss. 29 and 30. 
 
COXSTITUTIOX OF PARLIAMENT. gl 
 
 to insolvent debtors or becomes a public defaulter ; if he 
 becomes a citizen or subject of any foreign power; if ho 
 is attainted of treason or convicted of any infamous 
 crime; if ho ceases to be qualified in respect of property 
 or residence ; provided that ho shall not be considered 
 disqualified in respect to residence on account of his re- 
 siding at the seat of government, while holding an office 
 in the administration. When a vacancy happens in the 
 Senate, by resignation, death or otherwise, the governor- 
 general shall, by summons to a fit and proper person, 
 fill the vacancy. If any question should at any time 
 arise respecting tho qualification of a senator or a 
 vacancy in tho Senate, tho same must bo heard and de- 
 termined by that house. * 
 
 In arranging tho representation of the House of Com- 
 mons, the question arose in the Quebec conference as to 
 the best mode of preventing tho difficulty in tho future 
 of too large a number of members. It was to be ex- 
 pected that in tho course of a few decades tho population 
 would lai-gely expand, not only in tho old provinces 
 which first composed tho dominion, but in tho new 
 provinces which would bo formed sooner or later out of 
 the vast North-West. Unless some definite principlo 
 was adopted to keep the representation within a certain 
 limit tho House of Commons might eventually become a 
 too cumbrous, unwieldy body. It was decided '' to ac^ 
 cept tho representation of Lower Canada as a fixed 
 standard — as a pivot on which tho whole would turn — 
 since that province was tho best suited for the purpose 
 
 ^ B. N. A. Act, es. 31, 32, 33. A peer who has been adjudged a 
 
 bankrupt cannot sit and vote in the House of Lords, 34 and 35 
 
 Vict., c. 50, Imp. Stat.; 104 Lords' J., 138, 206, 321, 322, 342, 429. 
 6 
 
82 CONSTITUTIONAL HISTORY. 
 
 on account of the comparatively permanent character of 
 its population, and from its having neither the largest 
 nor the least number of inhabitants."^ Hence the dan- 
 ger of an inconvenient increase, when the representation 
 is reviewed after each decennial census, has been prac- 
 tically reduced to a minimum. 
 
 The question of the dui^ation of parliament also ob- 
 tained much consideration when the Quebec resolutions 
 were under deliberation ; and it was finally decided to 
 follow the example of New Zealand and give the Can- 
 adian parliament a constitutional existence of five years * 
 "from the day of the return of the writs for choosing 
 the house," subject, of course, to be sooner dissolved by 
 the governor-general, acting under the advice of the 
 privy council. In this connection it is interesting to 
 note that in 1867, the writs for the dominion elections 
 were issued on the 7th of August, and made returnable 
 on the 24th of September, except those for Gasp^, and 
 Chicoutimi, and Saguenay, which were to be returned 
 on the 24th of October.^ The first parliament actually 
 assembled in the month of November, 1867, and lasted 
 until the 8th of July, 1872, when it was formally dis- 
 solved, having completed its constitutional limit of five 
 years, less a few weeks, from the return of all the writs. 
 In 1872, the writs were made returnable on the 3rd of 
 September, except those for Gasp^, Chicoutimi and 
 Saguenay, Manitoba and British Columbia, which were 
 to be returned on the 12th of October,* but parliament 
 
 1 Sir J. A. Macdonald, Confed. Deb., 1865, p. 38. 
 
 2 Sir J. A. Miicdonald, Confed. Deb., 1865, p. 39. 
 
 3 Jour. [1867-8.] vii-x. 
 * Jour. [1873.] vi-xi. 
 
CONSTITUTION OF PARLIAMENT. 83 
 
 did not actually assemble until the 5th of March, 18^3. 
 The second parliament continued in existence only until 
 the 2nd of January, 18*74, when it was dissolved, the 
 writs being generally made returnable on the 21st of 
 February, with the exception of those for the districts 
 and provinces just named, which had to be returned on 
 the 12th of March.^ The third parliament assembled on 
 the 26th of March and lasted until the 17th of August, 
 1878, when it was dissolved,^ having sat in five sessions of an 
 avei'age duration of nearly ten weeks, and its con- 
 stitutional existence having been about seven months less 
 than five years from the date of the return of all the 
 writs in 1874. In 1878 the writs generally were return- 
 able on the 21st of November, but parliament did not 
 actually assemble until the 13th of February, 1879. 
 Only four sessions were held of the fourth parliament, 
 which was dissolved in the month of May, 1882, having 
 been less than four years in existence since the dissolu- 
 tion of 1878. The fifth parliament assembled on the 8th 
 of February, 1883, and lasted until the 15tb. of January, 
 1887, when it was dissolved after a constitutional exis- 
 tence of about four years and five months from the date 
 of the return of the writs in 1882.^ 
 
 In 1867 the house consisted of 181 members in all, 
 who were distributed as follows : * 
 
 Ontario..., 82 members. 
 
 Quebec 65 '* 
 
 Nova Scotia 19 " 
 
 New Brunswick 15 " 
 
 t — ___^__^^_— ^^-^.^^^— — — — ^— — — ^— ^— ^— — ^— ^^^.^— ^ 
 
 ^ Jour. [1874] Proclamations v-ix. A separate proclamation had 
 to be issued for Algoma, writ also returnable on the 12xh of March. 
 '' Ibid [1879] vii-x. 
 8 Jour. [1883], vi. ; lb. [1887], ix. 
 * B. N. A. Act, 1867, s. 37. 
 
84 CONSTITUTIONAL HISTORY. 
 
 But the British North America Act, 1FG7, provides ^ for 
 additional representation under certain conditions. 
 Quebec shall have the fixed number of 65 members. Each 
 of the other provinces shall be assigned such a number of 
 members as will bear the same proportion to the number 
 of its population (ascertained at each decennial census) 
 as the number 65 bears to the number of the population 
 of Quebec. Only a fractional part exceeding one-half of 
 the whole number requisite to entitle the province to a 
 member shall bo regarded in computing tho members 
 for a province — such fractional part being considered 
 equivalent to the whole number. In case of readjust- 
 ment after a decennial census the number of members 
 for a province shall not bo reduced " unless the propor- 
 tion which tho number of the population of the province 
 bore to tho number of tho aggregate population of 
 Canada at tho then last preceding readjustment of 
 the number of members for the province is ascertained 
 at the then latest census to be diminished by one-twen- 
 tieth part or upwards." Such readjustment, however, 
 " shall not take effect until tho termination of the then 
 existing parliament." It is also provided that the number 
 of members may be from time to time increased provided 
 that the proportionate rep \.»sentation prescribed in the 
 act is not thereby disturbed.^ 
 
 In accordance with section 51, the representation of the 
 people in tho House of Commons was rearranged in 
 1872, after tho taking of tho decennial census of 1871. 
 Ontario received 6 additional members ; 'Nova Scotia, 2 ; 
 
 » B. N. A. Act, s. 51. 
 
 * lb, s. 52. 
 
CONSTITUTION OF PARLIAMENT. 85 
 
 New Brunswick, 1 ; Quebec remained the same.^ On the 
 admission of Manitoba,^ she received 4 members ; British 
 Columbia, 6 ^ ; Prince Edward Island, 6.* Consequently 
 until 1882 the total number of members in the Ilouse of 
 Commons was 206. In the session of 1882 the represen- 
 tation was again readjusted,"" and the province of Ontario 
 received 4 additional members, and the pi'ovince of Mani- 
 toba one. In 1886 provision was made for the represen- 
 tation of the North-West Territories in the IIouso of 
 Commons.® 
 
 In the session of 1885 Parliament, after a remarkably 
 prolonged debate in the House of Commons, passed an 
 act providing a uniform franchise for the dominion.^ 
 Previous to that act all persons qualified to vote for 
 members of the legislative assemblies of the several 
 
 1 35 Vict., c. 13, s. 1; Dom. Stat 
 
 ^ See lb. 8.1; 33 Vict., c. 3, s. 4, Dom. Stat. 
 
 3 Can. Com. J. [1871], 195 ; Dom. Stat 1872, Order in Council 
 Ixxxviii. 
 
 * Can. Com. J. [1873], 402 ; also, Order in Coun., Dom. Stat 1873, 
 xxiii. 
 
 ^ 45 Vict, c 3. The readjustment of the Ontario constituencies 
 was opposed in the Commons. See Hansard [1882], 1356 et seq. 
 A great number of amendments were proposed at various stages. 
 Journals, pp. 410-412. By this legislation the old boroughs of 
 Niagara and Cornwall were attached to the electoral districts of 
 Lincoln and Stormont respectively, s. 2, 8ub-ss. 1 and 19. See 
 Rev. Stat of Can., c. 6. 
 
 « 49 Vict, c. 24 ; Rev. Stat of Can., c. 7. Members of both 
 Houses receive $1,000 for a session of over 30 days; $10 a day, 
 under 30 days ; and mileage, 10c. a mile coming and going. 
 Rev. Stat of Can., c. 11, ss. 25-31. 
 
 ' Rev. Stat of Can., c. 5. 
 
86 CONSTITUTIONAL HISTORY. 
 
 proviDces of Canada voted for members of the House of 
 Commons. The franchise now established for the 
 dominion is extremely wide and liberal in its pro- 
 visions. Every male person registered in accordance 
 with the statute, of the full age of twenty-one years, 
 a British subject by birth or naturalization, and not dis- 
 qualified by any law of the dominion, can vote on 
 qualifications, of which a tabular analysis is given on 
 page 87. 
 
 The representation under the statutes as given on 
 pages 84, 85, is now distributed as follows : — 
 
 Ontario 92 members. 
 
 Quebec 65 " 
 
 Kova Scotia 21 " 
 
 !N'ew Brunswick 16 " 
 
 Manitoba 5 '^ 
 
 British Columbia 6 
 
 Prince Edward Island... 6 " 
 
 North-West Territories. 4 *' 
 
 Total number 215 members.^ 
 
 ^ This is a large representation for a population of 4,324,810 
 as compared with the 225 members who represent over 50,000,000 
 in Congress. The census of 1881 gave Ontario 1,923,218 souls ; 
 Quebec 1,359,027; Nova Scotia, 440,572; New Brunswick, 
 321,223; Manitoba, 65,954; British Columbia (including In* 
 dians), 49,459 ; Prince Edward Island, 108,891 ; N. W. T., 56,446. 
 
CONSTITUTION OF PARLIAMENT. 
 
 8t 
 
 Franchise uxdih the Dominion Act of 1885. 
 
 Title op Voters.* 
 
 Beat Property Franchise 
 
 (1) Oxoner'— 
 
 (a) in his own right.. . 
 ib) in right of wife.... 
 (c) his wife owner.. . . . 
 
 Occupation op 
 
 Premises, or Residence 
 
 IN the Electoral 
 
 Lustrict. 
 
 Value. 
 
 (2) Occupant— 
 
 (a) in his own right.. 
 (6) in right of wife.. . 
 (c) his wife occupant. 
 
 (3) Farmer's *Sc7j— 
 
 (a) Father owner — 
 
 (b) Mother owner — 
 
 (4) Owner's Son — 
 
 (a) Father owner 
 
 (6) Mother owner. . . . 
 
 (5) Tenant— 
 
 (6) Tenant-Farmer's Son— 
 
 (a) Father tenant- 
 (6) Mothertenant. 
 
 J 
 
 Ownership prior tol 
 or at the date of the 
 revision of the voters' 
 lists 
 
 Both occupation and 
 residence for one year 
 next before : (1) the 
 date of his being 
 placed upon the list ot 
 voters ; or (2) the date 
 of the application for 
 the placing of his 
 name on the list of 
 voters 
 
 Cities, $300. 
 Towns, $200. 
 Other places, $150. 
 
 (7) Fisherman (owner) ) ' Prior to or at the date 
 
 ,o\ T 1- [ of the revision of the 
 
 (8) Indian. ) voters' lists 
 
 (except in Manitoba,Brit 
 
 ish Columbia, Kee 
 wati^i or N.W.T.) 
 
 Income Franchise. 
 (9) Income 
 
 Prior to or at the date 
 of the revision of the 
 voters' lists and one 
 year's residence in Can- 
 ada. 
 
 Farm or other real 
 property, if equally di- 
 vided among the father 
 and Fons, or (if mother 
 the owner) among the 
 sons, sufficient, accord- 
 ing to the above values 
 to give each a vote. 
 
 r$2 monthly, or 
 J $6 quarterly, or 
 iS12 half-yearly, or 
 I $20 yearly. 
 
 S $150, land, boats, fish- 
 l ing tackle, &c. 
 
 $150 of improvement. 
 
 OO) Annuitant 
 
 $300 a year. 
 
 Residence for one year 
 prior to the revision of $100 a year, 
 the voters' lists. I 
 
 * This table is taken from the Manual on the Franchise Act by Mr. Thomas 
 Hodgins, Q.C., as it gives in a very small compass the main features of the 
 law regulating the dominioa franchise. 
 
88 CONSTITUTIONAL HISTORY. 
 
 Tho Canadian Statutes regulating the trial of contro- 
 verted elections, and providing for the prevention of 
 corrupt practices at elections, have closely followed the 
 English law on the subject, and in some respects are even 
 more rigid. The first effort to refer contested elections 
 to thejudicial tribunals was made by tho statute of 1873 ; 
 l)ut more ample and satisfactory provision was made 
 in the act of 1874, which is now, with a few subsequent 
 amendments, the law on the subject.^ The law providing 
 for the independence of parliament^ and the prevention 
 of corruption at elections ^ is very strict. 
 
 The provisions respecting the election of speaker, quo- 
 rum, privileges, elections, money votes, royal assent 
 and resei's^ed bills, oath of allegiance, use of the French 
 language, will be found in the British North America 
 Act, 1867, given in the appendix to this work. Parlia- 
 ment has full control of all dominion revenues and 
 duties, which form one consolidated revenue fund, to be 
 appropriated for the public service in the manner, and 
 subject to the charges provided in the Act of Union.'* The 
 first charge thereon is the cost incident to the collection 
 and management of the fund itself; the second charge is 
 the annual interest on the public debts of the several 
 provinces ; the third charge is the salary of the governor- 
 general, fixed at ten thousand pounds sterling, A bill 
 
 * Rev. Stat, of Can., c. 9. See Bourinot's Parliamentary Prac- 
 tice, pp. 117-121. 
 
 " Rev- Stat of Can., c. 10. 
 » Ih., c. 11. 
 
 * Sa. 102-126. Rev. Stat of Can., c. 29, respecting the conso- 
 lidated revenue fund, collection and management of ^he revenue 
 and auditing of public accounts. 
 
CONSTITUTION OF PARLIAMENT. 89 
 
 was passed in the first session, reducing this salary to 
 six thousand five hundred pounds, but it was reserved, 
 and subsequently disallowed on the ground *' that a le- 
 duction in the salary of the governor, would place the 
 office, as far as salary is a standard of recognition, in the 
 third class among colonial governments." ^ 
 
 1 Dom. Ses?. P., 1S69, No. 73. 
 
CHAPTER IX. 
 
 Constitution op the Provincial Governments and 
 Legislatures — Organization op the North- West 
 Territories. 
 
 Under the Act of 1867, the dominion government 
 assumed that control over the respective provinces which 
 was previously exorcised by the imperial government.^ 
 In each province there is a lieutenant-governor, appointed 
 by the governor-general in council, and holding office 
 for five years, but subject to removal at any time by the 
 governor-general for " cause assigned," which must bo 
 "communicated to him in writing within one month 
 after the order of his removal is made, and shall bo com- 
 municated by message to the Senate and to the House of 
 Commons within one week thereafter, if the parliament 
 is then sitting, and if not, then within one week after 
 
 * " The general government assumes towards the local govern- 
 ments precisely the same position that the imperial government 
 holds now with respect to each of the colonies." Sir J. A. Mac- 
 donald, Conf. Deb., 1865, p. 42. Also Todd, Pari. Qovt. in the 
 Colonies, 415. 
 
PROVINCIAL GOVERNMENTS. 91 
 
 the commencement of the next session of j»arl lament."^ 
 Every lieutenant-governor, on his appointment, takes 
 the same oaths of allegiance and office as are taken by 
 the governor-general.^ In all the provinces ho has the 
 assistance of an executive council to aid and advise him 
 in administering public affairs, and who, like the privy 
 council of Canada, are responsible to the people through 
 their representatives in the legislature. In case of the 
 absence, illness, or other inability of the lieutenant- 
 
 ^ B. N. A. Act, 1867, ss. 58-59. In the memorable case of Mr. 
 Letellier de St. Just, removed from the lieutenant-governorship 
 of Quebec in 1879, it has been decided that the governor-general 
 acts on the advice of his cabinet in considering the very delicate 
 question of the removal of so important an officer. The colonial 
 secretary, in a despatch of 5th July, 1879, lays it down dis- 
 tinctly " But it must be remembered that other powers, vested 
 in a similar way by the statute in the governor-general, were 
 clearly intended to be, and are in practice exercised by and 
 with the advice of ^his ministers, and though the position of a 
 governor-general would entitle his views on such a subject as 
 that now under consideration to peculiar weight, yet her Ma- 
 jesty's government do not find anything in the circumstances 
 which would justify him in departing in this instance from the 
 general rule, and declining to follow the decided and sustained 
 opinion of his ministers, "/ho are responsible for the peace and 
 good government of the whole dominion to the parliament to 
 which the cause must be communicated." Can. Sess. P., 1880, 
 No. 18, p. 8. For full particulars of this much vexed question 
 see Sen. and Com. Hans., 1878 and 1879 ; Can. Sess. P., 1878, 
 No. 68 ; lb., 1879, No. 19 ; 2b., 1880, No. 18. For communication 
 to parliament in accordance with law, Can. Com. Jour. (1880) 
 24;* Sen. J. (1880), 22-23. 
 
 * Sec. 61, B. N. A. Act, 1867. See form of oaths in Can. Sess. 
 P., 1884, No. 77. 
 
92 CONSTITUTIONAL HISTORY. 
 
 governor, the governor-general in council may appoint an 
 administrator to execute his office and functions.^ 
 
 In the exercise of his functions, the lieutenant-governor 
 of a province "should, of course, maintain that imparti- 
 ality towards political parties, which is essential to the 
 proper i^erformanco of the duties of his office, and for 
 any action he may take he is, under the fifty-ninth sec^ 
 lion of the act, directly responsible to the governor- 
 general."^ The only safe principle that he can adopt 
 for his general guidance is that pointed out to him by 
 the experience of the working of parliamentary institu- 
 tions : to give his confidence to his constitutional advisers 
 while they enjoy the support of the majority of the legis- 
 lature. 
 
 A question has been raised, how far a lieutenant-gov- 
 ernor can now be considered to represent the Crown.* It 
 is beyond dispute, however, that he is fully authorized 
 to exercise all tlie powers lawfully belonging to the 
 sovereign in respect of assembling or proroguing, and of 
 dissolving the legislative assemblies in the provinces.* A 
 high judicial authority has expressed the opinion that 
 "whilst it cannot for a moment be contended that the 
 lieutenant-governors under confederation represent the 
 Ci'own as the lieutenant-governors did before confedera- 
 
 1 B. N. A. Act, ss. 63, 65, 66, 67. 
 
 ' Despatch of the colonial secretary, 1879 ; Can. Sess. P. 1880 
 No. 18, p. 8. 
 
 ' ** They are officers of the dominion government — they are 
 not her Majesty's representatives." Taschereau, J., in Lenoir 
 vs, Kitchie. Can. Sup. Court R., vol. iii, p. 623, See also Ih,, 
 vol. V, Mercer vs. Att-Gen. of 0. 
 
 * Todd, pp. 392-93. 
 
PilOVmCIAL GOVERNMENTS. 93 
 
 tion, yet it must bo conceded that these high officials, 
 since confederation, do represent the Crown, though 
 doubtless in a modified manner. They represent tbo 
 Queen as lieutenant-governors did before confederation, 
 in the performance of all executive or administrative 
 acts now left to be performed by lieutenant-governors in 
 the name of the Queen.'* ^ 
 
 The forty-first resolution of the Quebec conference de- 
 clared that '' the local government and legislature of 
 each province shall be constructed in such manner as the 
 existing legislature of each such province shall provide." 
 Accordingly, in the last session of the old legislature of 
 Canada, an address was passed to the sovereign praying 
 her "to cause a measure to be submitted to the imperial 
 parliament to provide for the local government and 
 legislature of Lower and Upper Canada respectively." 2 
 In accordance with this address the constitutions of Que- 
 bec and Ontario were formally incorporated in the British 
 North America Act of 1867. The legislature of Ontario 
 consists of only the lieutenant-governor and one house, 
 named the legislative assembly, composed in the first 
 instance of eighty-two members, elected for the same 
 electoral districts which returned members to the House 
 of Commons.^ After the census of 1871, there was a re- 
 arrangement of constituencies, and the number of repre- 
 sentatives was increased to eighty-eight in all.* In 1885 
 
 J Ritchie, C. J., Mercer vs, Att.-Gen. of O., Can. Sup. Court R . 
 vol. V, pp. 637, 643. 
 ^ Leg. Ass. J. (1866), 362. 
 
 J^^' ^^^' ^* ^^^^^^ ^^^' resolution 12. B. N. A. Act, 1867, ss. 
 69, 70, 1st sch. 
 
 ' Chap. 8, Rev. Stat of 1877, (38 Vict, c. 2, s. 1.) in which 
 the electoral divisions are set forth. 
 
94 CONSTITUTIONAL HISTORY. 
 
 the representation was again enlarged to ninety mem- 
 bers, elected under a very liberal franchise.^ 
 
 The legislature of Quebec consists of a lieutenant- 
 governor, a legislative council, and a legislative assem- 
 bly. The legislative council comprises twenty-four 
 members, appointed for life by the lieutenant-governor 
 in the Queen's name, and representing the same electoral 
 districts from which senators are chosen.^ The qualifi- 
 cations of the legislative councillors of Quebec are the 
 same as those of the senators from the province.^ The 
 legislative assembly is composed of sixty-five members, 
 elected for the same electoral districts represented by 
 the members of the House of Commons for the province.'' 
 It is provided in the act that while it is always perfectly 
 competent for the legislature of Quebec tj alter these 
 districts, it can only change the limits of certain consti- 
 tuencies, especially mentioned, with the concurrence of 
 the majority of the members representing all those 
 electoral divisions.^ The legislative assembly in each 
 province is summoned by the lieutenant-governor in the 
 
 * 48 Vict., c. 2., Manhood suffrage qualified by residence. 
 
 2 Leg. Ass. J. (1866) 363; B. N. A. Act, 1867, s. 71, 72 and s. 
 22, subs. 3. Cons. Stat, of Canada, c. 1, Sch. A. 
 8 B. N. A. Act, ss. 73 and 23. 
 
 * Ss. 80 and 40 ; Doutre, p. 85. 
 
 ^ These districts are Pontiac, Ottawa, Argenteuil, Huntingdon, 
 Missisquoi, Brome, Sheflbrd, Stanstead, Compton, Wolfe and 
 Richmond, Megantic, town of Sherbrooke. Second Sched. B. N. 
 A. Act, 1867. In these districts there is a large English-speak- 
 ing and Protestant population, and it was considered expedient 
 to insert this proviso securing its rights ; but the provision was 
 opposed in the legislature, in 1866, as unnecessary. Turcotte, 
 II., 590. 
 
PROVINCIAL GOVERNMENTS. 95 
 
 Queen's name. It has a constitutional existence of four 
 years in Ontario/ and of five years in Quebec,' subject 
 to being dissolved at any time by the same authority 
 that calls them together. A session must be held once 
 at least in every year, *' so that twelve montL;:* shall not 
 intervene between the last sitting of the legislature in 
 each province in one session and its first sitting in the 
 next session."^ The provisions in the act respecting 
 election and duties of speaker, quorum, and mode of 
 voting, in the House of Commons, also apply to the 
 legislative assemblies of the provinces in question.^ By 
 
 1 The Ont. Stat, 42 Vict., (1879), c. 4, s. 3, provides that every 
 legislature of Ontario shall continue for four years from the 55th 
 day after the date of the writs for the election and no longer ; 
 that in case a meeting of the legislature is necessary before the 
 election for Algoma has taken place, the member elected for that 
 district at the previous election shall represent the same until 
 the new election therefor has been held and the return made in 
 due form ; that in such case the duration of the new assembly 
 shall be for four years from the day for which the assembly 
 shall be summoned to meet for the discharge of business and 
 no longer, subject to being sooner dissolved by the lieutenant- 
 governor. This provision was made to meet a constitutional 
 question that had arisen as to the exact duration of the legis- 
 lature — whether it could not last for four years from the date 
 of the return for Algoma, which is much later than for the rest 
 of the province. See Canadian Monthly j April, 1879, and ParL 
 Deb. of Ontario, 1879, as the curious controversy that arose on 
 this constitutional point In 18b'5 this act was amended (Ont. 
 Rev. Stat c. 11,) by dividing Algoma into two electoral districts. 
 ^ Extended from four to five years, in 1881, by the legislature 
 of Quebec, in accordance with subs. 1, s. 92 of B. N, A. Act ; 44- 
 45 Vict, c. 7. 
 
 * Sec. 86, 
 
 * Sec. 87. 
 
96 CONSTITUTIONAL HISTORY. 
 
 an act passed in 1882, the speaker of the legislative 
 council of Quebec remains in office during the legislature 
 to which ho has been nominated by the lieutenant- 
 governor, and may not be a member of the executive 
 council of the province.^ 
 
 The Act of 186Y provides that the constitution of the 
 executive authority as well as of the legislatures of the 
 provinces of Nova Scotia and New Brunswick shall con- 
 tinue as it existed at the time of the union until altered 
 under the authority of that act.^ These two colonies 
 had, for very many years, enjoyed the advantages of 
 representative institutions as liberal in all respects as 
 those of the larger provinces of Canada. Under the 
 French regime, and for some time after their conquest 
 by the English, these provinces were comprised in the 
 large, ill-defined territory known as Acadia.^ From 
 1713 to 1758 the provincial government consisted of a 
 
 * Quebec Stat. 45 Vic, c. 3. 
 
 ^ B.N. A. Act, ss. 64, 88. The power of amendment so conferred, 
 has not been exercised in Nova Sco'ia— > Gov. Archibald. Can. 
 1883, No. 70, p. 11. 
 
 ' Nova Scotia was formally ceded to England by the Treaty 
 of Utrecht, 11 April, 1713; but Cape Breton still remained a 
 possession of France until the conquest of Canada, and the 
 subsequent Treaty of Paris, which gave to Great Britain all the 
 French possessions in British North America except the islands 
 of St. Pierre, Miquelon and Langley on the . coast of Newfound- 
 land, reserved for carrying on the fisheries. The Island of Cape 
 Breton was under the government of Nova Scotia from 1766 to 
 1784, when it was given a separate government, consisting of a 
 lieutenant-governor and council. This constitution remained 
 in force until the re-annexation of the island to Nova Scotia in 
 1820. Can. Sess. P., 1883, No. 70, p. 10. 
 
PEOVINCIAL GOVERNMENTS. ^ ^ 
 
 governor or lieutenant-governor and a council supposed 
 to possess both legislative and executive powers. The 
 constitution of ;N ova Scotia has always been considered 
 '' as derived from the terms of the royal commissions to 
 the governors and lieutenant-governors, and from the 
 instructions accompanying the same, moulded from time 
 to time by despatches from secretaries of state, convey- 
 ing the will of the sovereign, and by acts of the local 
 legislature, assented to by the Crown : the whole to some 
 extent interpreted by uniform usage and custom in the 
 colony."^ A legislative assembly met for the first time 
 at Halifax^ on the 2nd of October, 1758, and consisted of 
 Iwenty-two members. It is interesting to note in this 
 connection that the assembly promptly asserted the 
 privileges of free speech, when a member's remarks had 
 been called into question, by declaring that " what he 
 had said was as a member of the assembly, and that he 
 was only accountable to them for what he had said."^ In 
 the same session a person was committed to the custody 
 of one of the messengers of the house for having 
 assaulted a member on his way from the assembly.* 
 
 In 1838 the executive authority was separated from 
 the legislative council, which became a distinct legisla- 
 tive branch only.^ In 1840, a practical recognition was 
 
 ^ Governor Archibald, in an interesting memorandum on the 
 early constitution of Nova Scotia, in answer to an address of 
 parliament. Can. Sess. P. 1883, No. 70, pp. 7-11. 
 
 2 Annapolis (Port Royal under the French regime) was the 
 seat of government until 1749, when Halifax was founded. 
 Murdoch's Hist, II. c. 11. 
 
 » Murdoch, II. 353. 
 
 * lb. 354. 
 
 * Can. Sess. P. 1883, No. 70, pp. 8, 39. 
 
98 CONSTITUTIONAL HISTORY. 
 
 given for the first time to the principle of responsible 
 government, in the formation of the executive council, 
 but in reality the system was not fully adopted until 
 1848.^ In 1867, before the Act of Union came into force, 
 the legislature of Nova Scotia passed an act limiting the 
 number of members in the assembly to thirty-eight,* and 
 at the same time an address was proposed to limit the 
 number of legislative councillors to eighteen.^ The 
 number now is twenty-one. 
 
 In 1Y84: the province of New Brunswick, which had 
 received large accessions of loyalists from the United 
 States, was formally created, and a government estab-. 
 lished, consisting of a council of twelve members, having 
 both executive and legislative functions, and of an assem- 
 bly of twenty-six members ; * but in 1832 it was deemed 
 expedient to follow the example of Nova Scotia and have 
 the executive authority quit ) distinct from the legisla- 
 
 ^ Howe's Speeches and Letters vol. I, pp. 553, 562-4 ; Todd, 
 60; Eng. Com. P. 1847-8, vol. 42, pp. 51-88. 
 
 2 Nova S. Stat, 30 Vict., c. 2 ; Rev. Stat. (5th series) c. 3. For 
 vacating of seats, lb. c 3. Duration of and representation in 
 general assembly, c. 3. Executive and legislative disabilities, 
 c. 3. 
 
 ^ Jour. Ass. (1867) 28. Efforts have been made in the Nova 
 Scotia assembly to abolish the legislative council as in Ontarioi 
 but so far fruitlessly on account of the opposition in the latter 
 body. An. Reg. (1879) 179-80. See Rev. Stat. (4th ser.) c. 2. 
 
 * The first governor was Colonel T. Carle ton, brother of Lord 
 Dorchester. The government was frequently administered by 
 presidents of the executive council, and by military chiefs. See 
 copy of the commission of governor, giving him power to ap- 
 point a council, create courts, and call an assembly, etc. Can. 
 Sess. P. 1883, No. 70, p. 47. 
 
PROVINCIAL GOVERNMENTa 99 
 
 tive council. In 1848 the principles of responsible gov- 
 ernment were formally carried out in accordance with 
 the colonial policy adopted by the British government 
 with respect to the British American provinces gener- 
 ally.^ In the Act of Union it was provided that the 
 house of assembly of the province, elected in 1866, 
 should, '' unless sooner dissolved, continue for the period 
 for which it was elected." ^ The legislature now consists 
 of a lieutenant-governor, a legislative council of eighteen 
 members,^ and an assembly of forty-one members elected 
 every four years.^ 
 
 The island of Prince Edward, formerly known as St. 
 John,5 formed part of the province of Nova Scotia until 
 1*769, when it was created a separate province with a 
 lieutenant-governor, a combined executive and legisla- 
 tive council, and eventually a legislative assembly of 
 eighteen members.^ The government of the province 
 was always largely influenced by the proprietors of the 
 lands of the island, distributed by the lords of trade and 
 plantations in the year 1Y67. Some of the lieutenant- 
 governors were in constant antagonism to the assembly, 
 and during one administration the island was practically 
 
 ^ Todd, Pari. Govt, in the Colonies, 60. 
 » Sec. 88. 
 
 3 New B. Cons. Stat. 1877, c. 3, s. 1. 
 * Ih. c. 4, s. 79. 
 
 ^ It was finally ceded to Great Britain by the Treaty of Paris, 
 1763. The name was changed in 1798 in honour of Edward, 
 Duke of Kent 
 
 ® Captain Walter Paterson, one of the original land owners of 
 the colony, was the first lieutenant-governor. See copy of his 
 commission, Can. Sess. P. 1883, No. 70, p. 2. 
 
100 CONSTITUTIONAL HISTORY. 
 
 without parliamentary government for ten years.* Ee- 
 sponsible government was not actually caiTiod out until 
 1850-51, when the assembly obtained complete control, 
 as in the other provinces, of the public revenues.* The 
 land monopoly was for many yeai s the question which 
 kept the public mind in a state of constant ferment, and 
 though many attempts were made, with the assistance of 
 the British government, to adjust the conflicting claims 
 of the proprietors and tenants/ it was not until the 
 admission of the island into the confederation in 1873 
 that a practical solution was reached in the agreement 
 of the dominion government to advance the funds neces- 
 sary to purchase the claims of the proprietors.'* It was 
 provided, in the Act of 1873 admitting the island, that 
 the constitution of the executive authority and of the 
 legislature should continue as at the time of the union 
 unless altered in accordance with the act of 1867, and 
 that the assembly existing in 1873 should continue for 
 the period for which it was elected.^ The legislature 
 now consists of a lieutenant-governor, an elective legisla- 
 
 ^ Campbell, 62. Mr. C. Douglas Smith was lieutenant-gover- 
 nor, and did not summon the legislature from 1814-1817. He 
 promptly dissolved three successive legislatures which proved 
 intractable. 
 
 2 Col. Office List, 1883, p. 38. 
 
 ' An imperial commission was appointed in 1860, but the re- 
 port, though accepted by the assembly, was rejected by the 
 imperial authorities as beyond the authority given the commis- 
 sioners. Campbell, 162. 
 
 * Com. Jour. (1873) 401 ; Dom. Stat, of 1873, p. xi. A compul- 
 sory Land Purchase Act passed the provincial legislature in 
 1875. Todd, 352-4 ; Eng. Com. P., 1875, vol. liii. pp. 764, 766-768. 
 
 * Dom. Stat 1873, p. xii. 
 
PROVINCIAL G3VERNMENTS. ^ lOJ 
 
 tive council of thirteen members/ and an assembly ol 
 thirty members.* 
 
 The local constitution arranged for the province ol 
 Manitoba by the Canadian parliament in 1870 provided 
 for a lieutenant-governor, an executive council of not less 
 than five persons in the first instance, a legislative council 
 of seven members, to be increased to twelve after four 
 years, and a legislative assembly of twenty-four mem- 
 bers elected to represent electoral districts set apart by 
 the lieutenant-governor.3 In 1876 Manitoba abolished 
 the legislative council, and the legislature consequently 
 now consists only of the lieutenant-governor and assem- 
 bly.'* The same provisions as in the other provinces 
 exist with respect to the duration of the legislature and 
 its meetings once a year. Either the French or English 
 language may be used in the records and debates. The 
 present assembly consists of 35 members.^ 
 
 By an act of the imperial parliament, passed in 1858, 
 British Columbia was created a distinct colonial govern- 
 ment, in order to maintain order among the people 
 attracted by the gold discoveries.^ In 1859 Vancouver 
 
 ' P. E. I. Rev. Stat, of 1862, c. 18. Several attempts have been 
 made to abolish the legislative council. P. E. L Jour. (1880), 
 278-9 ; Leg. Council debates (1882), 57-72. 
 
 ' Col. Office List, 1883, p. 38. 
 
 ' Supra p. 59 ; 33 Vic, c. 3. See Sess. P. 1871, No. 20, for mea- 
 sures taken to organize the provincial government. 
 
 * Man. Stat., 39 Vict, c. 28. Pari. Companion, 1878, p. 310 ; 
 Sees. Pap. 1876, No. 36. 
 
 * Pari. Companion, 1887. 
 
 * The Hudson's Bay Company's trading license was revoked 
 and a colony established in 1858, by 21 and 22 Vict- c 99. 
 
102 CONSTITUTIONAL HISTORY. 
 
 Island was granted a complete form of government.* In 
 1866 both colonies were united,' and in 18^1, as previ- 
 ously shown, they became part of the dominion of 
 Canada.^ Previous to the union, the province of British 
 Columbia was governed by a lieutenant-governor, and a 
 legislative council composed of heads of departments 
 and other public officers;* but it was expressly 
 declared in the terms of union that " the government of 
 the dominion will readily consent to the introduction of 
 responsible government when desired by the inhabitants 
 of British Columbia," and that it was the intention of the 
 governor of that province, under the authority of the 
 secretary of state for the colonies, " to amend the exist- 
 ing constitution of the legislature by providing that a 
 majority of its members shall be elective." ^ Since its 
 admission, British Columbia has a local constitution 
 similar to that of some of the other provinces ; a lieuten- 
 ant-governor, an executive council, responsible to the 
 legislature, and one house only, a legislative assembly of 
 twenty-seven members.^ 
 
 * Sir James Douglas, the local agent of the Hudson's Bay 
 Company, which had trading privileges over the island and 
 mainland until the establishment of colonies, became the first 
 governor. 
 
 » Col. Office L., 1883, p. 37. 
 ' Supra p. 60. 
 
 * A legislative council of 15 persons was first established in 
 1863, and was enlarged to 23 members on the union with Van- 
 couver Island. In 1870 other constitutional changes took place, 
 by which nine unofficial members were elected by the people. 
 Col. O. List, 1883, p. 37. 
 
 "^ Can. Seas. p. 1867-8, No. 59 ; Stat for 1872, p. Ixxxix. ; Col. 
 Office List, 1883, p. 37. 
 ® B. C. Con Stat , c. 42 ; two members added by 48 Vict, c 3. 
 
PROVINCIAL GOVERNMENTS. 103 
 
 Since the acquisition of the North- West the parliament 
 of Canada has provided a simple machinery for the gov- 
 ernment of that vast territory, preparatory to the forma- 
 tion of new provinces therein. The first act passed in 1869 
 was only of a temporary character, and, as previously 
 shown, it never practically came into operation ; ^ but in 
 the act of the following year, forming the new province of 
 Manitoba, provision was also made for the government of 
 that portion of Eupert's Land and the North-West Terri- 
 tory, not included within the limits of that province. 
 In subsequent sessions other acta were passed, and in 
 1886 all the legislation relating to the North- West Terri- 
 tories was consolidated into one statute.* The territories 
 are now governed by a lieutenant-governor, or adminis- 
 trator, appointed by the governor-general in council. 
 The law provides for a council, composed of the judges 
 of the supreme court in the territory and other persons, 
 appointed in the first instance by the governor-general, 
 with the advice of his ministry. The lieutenant-gov* 
 ernor in council may make ordinances for the govern- 
 ment of the North- West Tern tor/, within certain limita- 
 tions set forth in the act, and copies of such ordinances 
 must be mailed to the secretary of state within thirty 
 days after their passing ; the governor in council may 
 disallow such ordinances within one year after their re- 
 ceipt. The ordinances of the council, and all orders of 
 the governor in council disallowing any of them, must 
 always be laid formally before parliament as soon as it 
 can be conveniently done.' Provision is also made for 
 
 1 Supra p. 59 ; 32 and 33 Vict, c 3. 
 * Rev. Stat, of Can. c. 50. 
 »SeS8. P. 1879, No. 86. 
 
104 CONSTITUTIONAL HISTORY. 
 
 the erection of electoral districts and the election of 
 members of council, according as the territory increases 
 in population ; and a legislative assembly may be formed 
 in place of a council, as soon as the elected members of 
 any council amount in all to twenty-one. The assembly 
 must bo summoned at least once a year, and shall 
 present all bills to the lieutenant-governor for his as- 
 sent. The members are to hold their seats in the as- 
 sembly for two years. Electoral districts have been al- 
 ready formed in the territories and elections for the 
 council held in accordance with the act. The number of 
 members in the council is now twenty, of whom six are 
 nominated and the remainder elected. The lieutenant- 
 governor presides over the council and has a vote. 
 
 Pending the settlement of the western boundary of 
 Ontario, it was considered expedient in 1876 to create a 
 separate territory out of the eastern part of the North- 
 West.^ This territory is known as the district of Kee- 
 watin,' and is under the jurisdiction of the lieutenant- 
 governor of Manitoba, ex-officio, who may have the assist- 
 ance, if necessary, of a council, of not less than five per- 
 sons and not more than ten, to aid him in the administra- 
 tion of affairs, with such powers as may be conferred 
 npon them by order of the governor in council.^ This 
 arrangement of a separate district is altogether of a pro- 
 visional nature, and will come entirely to an end with 
 the rapid development of the North- West Territories.* 
 
 1 39 Vict, c. 21 ; Rev. Stat, of Can., c. 53. 
 ' Sometimes Keewaydin. 
 
 * No such orders now appear in the statutes of Canada. 
 *Can. Hans. (1876) 86, remarks of Mr. Mackenzie, then 
 premier, in introducing bilL 
 
PROVINCIAL GOVERN^VIENTS. 105 
 
 The district of Keewatin has been materially altered by 
 the extension of the limits of Manitoba, in accordance 
 with acts passed since 1876/ and by the extension of the 
 boundary of Ontario through the decision of the judicial 
 committee of the privy council in 1884.* 
 
 Before passing from this historical review of the 
 establishment of government in the North-West Terri- 
 tories, it is necessary to notice here the fact that it was 
 found expedient to obtain certain legislation in 1871 from 
 the imperial parliament in order to remove doubts that 
 were raised in the session of 1869, as to the power of 
 the Canadian legislature to pass the Manitoba Act, 
 especially the provisions giving representation to the 
 province in the Senate and House of Commons. It ap- 
 pears that the address passed in the first session of the 
 parliament of Canada contained no provisions with respect 
 to the future government of the country, whilst the 
 general purview of the British North America Act, 1867, 
 as respects representation in the Senate and House of 
 Commons, seems to be confined to the three provinces of 
 Canada, Nova Scotia and New Brunswick, originally 
 forming the dominion. Whilst the admission of New- 
 
 MO Vict, c. 6, defined new boundaries of the province of 
 Manitoba and Keewatin. By 44 Vict, c 14, the boundariea of 
 the province of Manitoba were extended. See Rev. Stat of 
 Can. c. 53. For debates as to boundary question, see Sen. Hana. 
 (1880-1) 606 et seq., Com. Hans. (1880-1) 2 vol. p. 1443 et seq. In 
 accordance with a resolution passed in the session of 1882 four 
 divisions were marked out in the North-West Territory for postal 
 and other purposes, viz. ; Alberta, Athabasca, Assiniboia, and 
 fiaskatchewan. Com. J. (1882) 509. Canada Ga^etU, Dec. 1882. 
 
 * See infra,f pp. 156. 
 
106 CONSTITUTIONAL HISTORY. 
 
 foundland and Prince Edward Island is provided for, no 
 reference is made to the future representation of Eupert'a 
 Land, and the North- West Territory, or British Columbia. 
 Under these circumstances an act was passed through 
 the imperial parliament substantially in accordance 
 with a report submitted by the Canadian minister of 
 justice to the privy council, and transmitted to the sec- 
 retary of state for the colonies by the governor-general. 
 This act gives the parliament of Canada power to 
 establish new provinces in any territories of the do- 
 minion of Canada, not already included in any province, 
 and to provide for the constitution and administration of 
 such provinces. Authority is also given to the Cana- 
 dian parliament to alter the limits of such provinces 
 with the consent of their legislatures. The previous 
 legislation of 1869 and 1870 respecting the province of 
 Manitoba and the North- West, was sanctioned formally 
 in the act. ^ 
 
 It is expressly provided in the British North America 
 Act that the local legislature may amend from time to 
 time the constitution of a province, except as regards 
 the oflSce of lieutenant-governor,'-' and the provinces of 
 British Columbia and Manitoba have already availed 
 themselves of the power thus conferred by abolishing 
 
 1 Imp. Stat. 34 and 35 Vict., c. 28; see Can. Stat, for 1872, p. 
 lii. For history of this question, Sess. P. 1871, No. 20; Com- 
 Jour. (1871), 136, 145, 291. The Imp. Act 31 and 32 Vict., c. 92, 
 enabled the legislature of New Zealand to withdraw part of a 
 territory from a province and form it into a county. 
 
 ' Sec. 92, sub-sec. 1, and as respects provinces coming in after 
 1867, see Can. Stat. 1870, c. 3, ss. 2. 10 ; 1872 p. Ixxxviii., ss. 10 
 and 14 ; 1873, pp. xii-xiii, &c. 
 
PROVINCIAL GOVERNMENTS. 10 . 
 
 the legislative council.^ The provisions in the act re- 
 lating to the speaker, quorum, mode of voting, appro- 
 priation and tax bills, money votes, assent to bills, dis- 
 allowance of acts and signification of pleasure on re- 
 served bills — that is to say, the provisions affecting the 
 parliament of Canada, extend to the legislatures of the 
 several provinces. In accordance with these provisions 
 any bill passed by a legislature of a province may now 
 be disallowed by the dominion government within one 
 year after its passage.^ The lieutenant-governor may 
 also reserve any bill for the " signification of the pleasure 
 of his Excellency the Governor-General," and it cannot 
 go into operation unless official intimation is received, 
 within one year of its having been approved.^ 
 
 * See supra p. 102, (British Columbia) ; p. 101, (Manitoba) ; also 
 p. 96, n. as to duration of Quebec legislature extended to five 
 yeais. 
 
 2 Ss. 87, 90. Also Manitoba Act, 33 Vict c. 3, ss. 2, 21 ; Brit- 
 ish Columbia, 1872, p. Ixxxviii, s. 10 ; P. E. Island, p. xxii. 
 
 ' See chapter respecting bills in Bourinot*s Pari. Practice and 
 Procedure. 
 
CHAPTER X. 
 
 DISALLOWANCE OF PROVINCIAL ACTS. 
 
 The same powers of disallowance that belonged to the 
 imperial government previously to 1867, with respect 
 to acts passed by colonial legislatures, have been con- 
 ferred by the British JS'orth America Act on the govern- 
 ment of the dominion. It is now admitted beyond dis- 
 pute that the i)Ower of confirming or disallowing pro- 
 vincial acts has been vested by law absolutely and ex- 
 clusively in the governor-general in council.^ In the 
 first years of the confederation it became, therefore, ne- 
 cessary to settle the course to be pursued in consequence 
 of the large responsibilities devolved on the general 
 
 ^ Can. Sess. P., 1877, No. 89, pp. 407, 432-34. In the Commons' 
 papers will be found the arguments advanced by Mr. Blake, 
 when minister of justice, to show that the Canadian ministry 
 must be directlj'^ and exclusively responsible to the dominion 
 parliament for the action taken by the governor in any and 
 every such case, and that a governor who thinks it necessary 
 that a provincial act should be disallowed, must find ministers 
 who will take the responsibility of advising its disallowance. 
 lb. (1876) No. 116, pp. 79, 83. lb, (1877) No. 89, pp. 449458. 
 
DISALLOWANCE OF PROVINCIAL ACTa 109 
 
 government. As it was considered of importance " that 
 the course of local legislation should be interfered with 
 as little as possible, and the power of disallowance exer- 
 cised with great caution, and only in cases where the 
 law and general interests of the dominion imperatively 
 demanded it," the minister of justice in 1868 laid down 
 certain principles of procedure, which have been generally 
 followed up to the present time. On the receipt of the acts 
 passed in any province, they are immediately referred 
 to the minister of justice. He thereupon reports those 
 acts which he considers free from objection of any kind, 
 and if his report is approved by the governor in council, 
 such approval is forthwith communicated to the provin- 
 cial government. He also makes separate reports on 
 those acts which he may consider : 
 
 1. As being altogether illegal or unconstitutional 
 
 2. As illegal or unconstitutional in part. 
 
 3. As, in cases of concurrent jurisdiction, clashing with 
 the legislation of the general parliament. 
 
 4. As affecting the interests of the dominion generally. 
 It has also been the practice, in the case of measures 
 
 only partially defective, not to disallow the act in the 
 first instance ; but, if the general interests permit such a 
 courae, to give the local government an opportunity of 
 considering the objections to such legislation and of re- 
 medying the defects therein.^ 
 
 Perhaps no power conferred upon the general govern- 
 ment is regarded with greater jealousy and restlessness 
 than this power of disallowing provincial enactments. So 
 far, this power has been exercised in relatively few cases 
 
 1 Report of Sir J. A. Macdonald, Can. Sess. P., 1870, No. 35, 
 pp. 6-7. 
 
110 CONSTITUTIONAL HISTORY. 
 
 out of the large number of acts passed since confedera- 
 tion by the legislatui^es of the provinces. Nearly 8,000 acts 
 have been passed from 186*7 to 1887, inclusive, but not 
 more than 45 altogether have been disallowed. This fact 
 goes to show that the power has been exercised, on the 
 whole, with caution and deliberation. A review, how- 
 ever, of the very voluminous papers relating to this 
 question proves that, whilst but few acts have been dis- 
 allowed, the legislation has been considered partially 
 objectionable in many cases by the law officers of the 
 dominion; but, in such cases generally, every oppor- 
 tunity has been given to the local governments to re- 
 move the objections pointed out by the minister of jus- 
 tice.^ 
 
 Considerable discussion has arisen, however, in and 
 out of parliament with respect to certain cases of disal- 
 lowance. The first of these cases was in connection 
 with "An Act for protecting the public interests in 
 rivers and streams" (Ontario Stat., 1881). It appears 
 that one McLaren, a lumberman, constructed certain 
 works on non-floatable streams, of which he claimed to 
 be seized in fee-simple, for the purpose of carrying his 
 logs to their destination. One Caldwell, carrying on 
 the same business higher up than the former, claimed 
 the right to use these streams under the first section of 
 chapter 115, E. S. O., as follows : '* All persons may, 
 during the spring, summer and autumn freshets, float 
 saw-logs, and other lumber, rafts and craft down all 
 streams." McLaren obtained an injunction from the 
 coui't of chancery, restraining Caldwell from making 
 
 1 Can. Sess. P., 1882, No. 141, pp. 2-29 ; Ih, 1886, Na 81. 
 
DISALLOWANCE OF PROVINCIAL ACTS. HI 
 
 use of the improvements in question, on the ground that 
 the words **all streams" only referred to those floatable 
 in a state of nature, and that the streams in question 
 were not navigable for saw-logs or other lumber without 
 artificial improvements.^ Subsequently, in 1881, the 
 legislature of Ontario passed an act re-enacting the sec- 
 tion cited above, and at the same time declaring that its 
 provisions shall extend to all streams and all construc- 
 tions and improvements thereon ; and that all persons 
 might make use of such improvements on paying a rea- 
 sonable toll (to be fixed by the lieutenant-governor in 
 council) to the person who has made these improve- 
 ments on the streams. An appeal was made to the go- 
 verno: -general in council to disallow the act on the 
 ground that it was unconstitutional, inasmuch as it de- 
 prived the petitioner of extensive and important private 
 rights without providing adequate compensation, and as 
 it embodied ex post facto legislation, contrary to all 
 sound principles that should govern in such cases. The 
 minister of justice advised, and the privy council con- 
 curred in the advice, that the act be disallowed for these 
 reasons principally : '* That the act seems to take away 
 the use of the owner's property and give it to another. 
 
 ^ The supreme court of Canada, in November, 1882, affirmed 
 the decree of the court of chancery, and reversed the decision 
 of the court of appeal of Ontario to the effect that the R. S. , 
 c. 115, s. 1, re-enacting C. S. U. C, c. 48, s. 15, made all streams, 
 whether artificially or naturally floatable, public waterways. 
 Can. Law Times, 1882, pp. 90-91. J6., 1883, p. 346. In 1884 the 
 privy council decided that the judgment of the supreme court 
 should be reversed and that of the court of appeal restored. 
 Leg. News, pp. 195, 203. 
 
1 1 2 CONSTITUTIONAL HISTORY. 
 
 forcing the owner practically to become a toll-keeper 
 against his will, if he wished to get any compensation 
 for being thus deprived of his rights. That the power 
 of the local legislatures to take away the rights of one 
 man and vest them in another, as is done in the act, is 
 exceedingly doubtful ; that, assuming such a right does 
 in strictness exist, it devolves upon the dominion go- 
 vernment to see that such power is not exercised in 
 flagrant violation of private rights and natural justice, 
 especially when, as in this case, in addition to interfer- 
 ing with private rights in the way alluded to, the act 
 over-rides a decision of a court of competent jurisdiction 
 by declaring retrospectively that the law always was, 
 and is, different from that laid down by the court." To 
 this decision strong objection was taken by the govern- 
 ment of Ontario, in an elaborate state-paper, in which 
 it is emphatically urged that the governor-general in 
 council should not assume to review any of the provisions 
 of an act passed by the provincial legislature on a sub- 
 ject within its competency under the British North 
 America act.^ The legislature of Ontaria subsequently 
 re-enacted the act of 1881, which was again disallowed 
 by the government of the dominion. 
 
 The act of the Manitoba legislature, incorporating the 
 Winnipeg South-Eastern Eailway Company, was disal- 
 lowed because it conflicted with '^ the settled policy of 
 the dominion, as evidenced by a clause in the contract 
 with the Canadian Pacific Eailway," which was ratified 
 by parliament in the session of 1880-81 j which clause is 
 to the effect that " for twenty yeai'S from the date hereof 
 
 ^ Can. Sess. P., 1882, No. 149a. Hans., pp. 876-926. 
 
DISALLOWANCE OF PROVINCIAL ACTS. 113 
 
 no line of railway shall be authorized by the dominion 
 parliament to be constructed south of the Canadian Pacific 
 Kailway, from any point at or near the Canadian Pacific 
 Railway, except such line as shall run south-west or to the 
 "Westward of south-west, nor to within fifteen miles of 
 latitude 49." The government of Manitoba contended at 
 the time that the act was ^' strictly within the jurisdic- 
 tion of the legislature of the province." ^ 
 
 These cases show the large power assumed by the 
 dominion government under the law giving them the 
 right of disallowing provincial enactments. The best 
 
 ^ Can. Sess. P., 1882, No. 166. The government of Canada has 
 also disallowed the acts of ^Manitoba to incorporate the Manitoba 
 Tramway Co-, to incorporate the Emerson and North- Western 
 RR. Co., and to encourage the building of railways in Manitoba, 
 on the ground also, that they were '* in conflict with the settled 
 policy of the dominion government in regard to the direction 
 and limits of railway construction in the territories of the domi- 
 nion." To this policy the government of the dominion has 
 strictly adhered for years. In 1886 they disallowed the charters 
 granted to the Manitoba Central Railway Company, and to 
 the Rock Lake,Souris Valley & Brandon R.R. Company, and in 
 1887 those to the Winnipeg and Southern Railway Company and 
 the Red River Valley R. R , in addition to the Emerson & N. W. 
 RR. Co. and the Manitoba Central R.R., previously disallowed. 
 Can. Sess. P., 1886, No. 81. Can. Gazette, 1887. In 1883 the acts 
 passed by the legislature of British Columbia *' to incorporate 
 the Eraser River Railway Company," and " to incorporate the 
 New Westminster Southern Railway Company," were disallowed 
 for the same reasons. Can. Sess. P., 1886, No. 29. Much irritation 
 has been felt in Manitoba on account of this policy, and at this 
 time of writing negotiations are in progress between the 
 dominion and the provincial government on the subject, and 
 it is understood a solution of the difficulty has been reached and 
 
 the monopoly practically removed. 
 8 
 
114 CONSTITUTIONAL HISTORY. 
 
 authorities concur in the wisdom of interfering with 
 provincial legislation only in cases where there is a clear 
 invasion of dominion jurisdiction, or where the vital 
 interests of Canada as a whole imperatively call for such 
 interference. The powers and responsibilities of the 
 general government in this matter have been well set 
 forth by a judicial authority : " There is no doubt of the 
 prerogative right of the Crown to veto any provincial 
 act, and to apply it even to a law over which the pro- 
 vincial legislature has complete jurisdiction. But it is 
 precisely on account of its extraordinary and exceptional 
 character that the exercise of this prerogative will al- 
 ways be a delicate matter. It will always be very dif- 
 ficult for the federal government to substitute its opinion 
 instead of that of the legislative assemblies, in regard to 
 matters within their jurisdiction, without exposing itself 
 to be reproached with threatening the independence of 
 the provinces." The injurious consequences that may 
 result in case a province re-enacts a law, are manifest : 
 " probably grave complications would follow." And in 
 any case, " under our system of government, the disal- 
 lowing of statutes passed by a local legislature after due 
 deliberation, asserting a right to exercise powers which 
 they claim to possess under the British North America 
 Act, will always be considered a harsh exercise of au- 
 thority, unless in cases of great and manifest necessity, 
 or where the act is so clearly beyond the powers of the 
 local legislature that the propriety of interfering would 
 at once be recognized." ^ 
 
 * Can. Sup. Court R., vol. 2, Richards C. J., p. 96 ; Fournier J., 
 p. 131. ' 
 
CIIAPTEE XL 
 
 DISTRIBUTION OF LEGISLATIVE POWERS. 
 
 In the distribution of the legislative powers entrusted 
 to the general parliament and the local legislatures res- 
 pectively, the constitution makes such an enumeration 
 as seems well adapted to secure the unity and stability 
 of the dominion and at the same time give every neces- 
 sary freedom to the several provinces in the manage- 
 ment of their local and municipal affairs. In arranging 
 this part of the constitution, its framers had before them 
 the experience of eighty years' working of the federal 
 system of the United States, and were able to judge in 
 what essential and fundamental respects that system ap- 
 peared to be defective.^ The doctrine of state sover- 
 eignty had been pressed to extreme lengths in the 
 United States, and had formed one of the most powerful 
 arguments of the advocates of secession. This doctrine 
 
 ^ Sir J. A. Macdonald, Conf. Deb., 1865, p. 32 : "I am strongly 
 of opinion that we have in a great measure avoided in this sys- 
 tem which we propose for the adoption of the people of Canada, 
 the defects which time and events have shown to exist in the 
 American constitution," &c. 
 
116 CONSTITUTIONAL HISTORY. 
 
 had its origin in the fact that all powers, not expressly 
 conferred upon the general government, are reserved in 
 the constitution to the states.^ Now, in the federal con- 
 stitution of Canada the very reverse principle obtains, 
 with the avowed object of strengthening the basis of the 
 confederation, and preventing conflict as far as practi- 
 cable between the provinces that compose the union.* 
 This constitution emanates from the sovereign authority 
 of the imperial parliament, which has acted in accord- 
 ance with the wishes of the people of the several prov- 
 inces, as expressed through the constitutional medium 
 of thvL respective legislatures. This imperial charter, 
 the emanation of the combined wisdom of the imperial 
 parliament and the subordinate legislatures of the several 
 provinces affected, confers upon the general government 
 the exclusive legislative authority over all matters res- 
 pecting the public debt, regulation of trade and com- 
 merce, postal service, navigation and shipping, Indians, 
 census and statistics, and all other matters of national 
 import and significance.^ On the other hand the local 
 
 ^ The 10th art. of the Am. Cons- reads : " The powers not dele- 
 gated to the United States by the constitution, nor prohibited 
 by it to the States, are reserved to the States respectively, or to 
 the people." This art. did not appear in the first constitution 
 of 1787, but was agreed to with other amendments by the first 
 congress in 1789, and subsequently ratified by the States- See 
 Smith's Cons., Manual and Digest, 4th ed., published by order of 
 Congress, 1877. 
 
 * Sir J. A. Macdonald, Conf. Deb., 1865, p. 33 : " We have thus 
 avoided that great source of weakness which has been the cause 
 ofthe disruption of the United States. We have avoided all 
 conflict of jurisdiction and authority," etc. 
 
 » B. N. A. Act, 1867, s. 91. See appendix to this work. 
 
LEGISLATIVE POWERS. 
 
 in 
 
 legislatures may exclusively make laws in relation to 
 municipal institutions, management and sale of public 
 lands belonging to the province, incorporation of com- 
 panies with provincial objects, property and civil rights 
 in the province, and "generally all m. ^ters of a merely 
 local or private nature in the province." ^ The provin- 
 cial legislatures have also exclusive powers of legislation 
 in educational matters, subject only to the right of the 
 dominion parliament to make remedial laws under cer- 
 tain circumstances.'' The object of this provision is to 
 secure, as far as practicable, by statute, to a religious 
 minority of a province, the same rights, privileges and 
 protection which it may have enjoyed at the time of the 
 union.^ The local legislatures may, however, legislate as 
 to separate schools, provided that the legislation be not 
 such as prejudicially affects the rights or privileges there- 
 tofore possessed by such schools, and they may pass laws 
 interfering with unimportant matters such as the 
 election of trustees, or the every-day detail of the work- 
 ing of such schools, as settled by statute prior to confed- 
 eration.^ The general parliament and local legislatures 
 have also concurrent powers of legislation respecting 
 
 1 B. N. A. Act, s. 92. 
 
 2 Sec. 93. 
 
 ^ See New Brunswick School Law Controversy. Todd, Pari. 
 Gov. in the Colonies, pp. 346-352, Can. Sess. P. 1877, No. 89. A 
 reference to the correspondence on this vexed question clearly 
 shows that both the imperial and dominion authorities con- 
 curred in the view that it is not proper for the federal authority 
 to attempt to interfere with the details or accessories of a mea- 
 sure of the local legislature, the principles and objects of which | 
 are entirely within its competency. 
 
 * Board of School Trustees vs. Granger et cd., 25 Grant, Ch. 570. 
 
118 CONSTITUTIONAL HISTORY. 
 
 agriculture and immigration, provided the provincial 
 law is not repugnant to any Act of the parliament of 
 Canada.^ The powers of the provincial governments are 
 distinctly specified in the Act of Union, whereas those of 
 the general government cover tho whole ground of 
 legislation not so expressly reserved to the provincial 
 authorities.^ The dominion government is authorized in 
 express terms " to make laws for the peace, order and 
 good government of Canada in relation to all matters 
 not coming within the classes of subjects by this act 
 assigned exclusively to the legislatures of the prov- 
 inces" ; * and in addition to this specific provision it is 
 enacted that ''any matter coming within any of the 
 classes of subjects enumerated in the section (that is, the 
 91st respecting the powers of the general parliament) 
 shall not be deemed to come within the class of matters 
 of a local or private nature comprised in the enumera- 
 tion of the classes of subjects assigned exclusively to tho 
 legislatures of the provinces." 
 
 It must necessarily happen that, from time to time, in 
 the operation of a written constitution like that of Can- 
 
 ^ B. N. A. Act, a. 95. 
 
 * " The government of the United States is one of enumerated 
 powers, and the governments of the States possess all the gen- 
 eral powers of legislation. Here (in Canada) we have the exact 
 opposite. The powers of the provincial governments are enu- 
 merated, and the dominion government possesses the general 
 powers of legislation." Ritchie C. J., Can. Sup. Court R., 13th 
 April, 1880, vol. iii., p. 536. 
 
 ' See injray p. 136. Judgment of privy council re " Canada 
 Temperance Act," showing the large powers given to the do- 
 minion government by this provision of the B. N. A. Act, 
 1867. 
 
LEGISLATIVE POWERS. ng 
 
 ada, doubts will arise as to the jurisdiction of the general 
 government and local legislatures over such matters as 
 are not very clearly defined in the sections enumerating 
 the powers of the respective legislative authorities. No 
 grave difficulty ^himld arise in arriving sooner or later, 
 as a rule, at a satisfactory solution by means of the deci- 
 sions of the judicial committee of the privy council, and 
 of the higher courts of the dominion. An act establish- 
 ing a supreme court for Canada was passed in the session 
 of 1875, in accordance with the 101st section of the 
 British North America Act, 1867, which provides " for 
 the constitution, maintenance and organization of a gen- 
 eral court of appeal for Canada." ^ This court has an 
 appellate jurisdiction in cases of controverted elections, 
 and may examine and report upon any private bill or 
 petition for the same. The governor in council may 
 refer any matter to this court for an opinion. It shall 
 also have jurisdiction in cases of controversies between 
 the dominion and the provinces, and between the prov- 
 inces themselves, on condition that the legislature of a 
 province shall pass an act agreeing to such jurisdiction.^ 
 
 Many important cases of doubt as to the construction 
 to be placed on the 91st and 92nd sections of the British 
 Korth America Act, 1867, have already been referred to 
 
 ^ 38 Vict, c. 11. Lord Durham, in his report (p. 123), recom- 
 mended the establishment of a "Supreme Court of Appeal for 
 all the North American colonies." The provincial courts have 
 equal power to declare any Canadian statute unconstitutional J 
 the supreme court is the court of appeal for all the provinces of 
 the dominion. 
 
 2 Ss. 52, 53, 54. The legislature of Ontario in 1877 passed 40 
 Vict, c. 5, authorizing such references. 
 
120 CONSTITUTIONAL HISTORY. 
 
 the privy council and to the supreme court of the do- 
 minion. Already in Canada, as in the United States, a 
 large amount of constitutional learning and research is 
 being brought every year to the consideration of the per- 
 plexing questions that must unavoidably arise in the 
 interpretation of a written constitution. It will be prob- 
 ably useful to cite some of the more important decisions 
 given by the high tribunals just mentioned, with the 
 view of showing the conclusions they have formed with 
 respect to the legislative powers of the dominion parlia- 
 ment. 
 
CKAPTEE XII. 
 
 DECISIONS OF THE PRIVY COUNCIL OF ENGLAND AND OF 
 
 THE SUPREME COTTRT OF CANADA ON QUESTIONS 
 
 OF LEGISLATIVE JURISDICTION. 
 
 In 1874, the dominion parliament passed an act im- 
 posing on the judges of the superior courts of the pro- 
 vinces the duty of trying controverted elections of mem- 
 bers of the House of Commons.^ The question wag 
 raised in the courts, whether the act contravenes that 
 particular provision of the 92nd section of the B. !N". A. 
 Act, which exclusively assigns to the provincial legis- 
 latures the power of legislating for the administration 
 of justice in the provinces, including the constitution, 
 maintenance and organization of provincial courts of 
 civil and criminal jurisdiction, and including procedure 
 in civil (not in criminal) matters in those courts. The 
 question came at last before the supreme court of Can- 
 ada, which, constituted as a full court of four judges, 
 unanimously held: 
 
 That whether the act established a dominion court or 
 not, the dominion parliament had a perfect right to give 
 
 1 " The Dominion Controverted Elections Act, 1874 "j 37 VicL 
 c. 10. 
 
122 CONSTITUTIONAL HISTORY. 
 
 to the superior courts of the respective provinces, and 
 the judges thereof, the power, and impose upon them the 
 duty, of trying controverted elections of members of 
 the House of Commons, and did not, in utilizing existing 
 judicial officers and established courts to discharge the 
 duties assigned to them by that act, in any particular 
 invade the rights of the local legislatures. That upon 
 the abandonment by the House of Commons of the 
 jijrisdiction exercised over controverted elections, with- 
 out express legislation thereon, the power of dealing 
 therewith would fall, ipso facto, within the jurisdiction 
 of the superior courts of the provinces by virtue of the 
 inherent original jurisdiction of such courts over civil 
 rights. That the dominion parliament has the right to 
 interfere with civil rights, when necessr^'v for 'he pur- 
 jioso of legislating generally and etFectually in relation 
 to matters confided to the parliament of Canada. That 
 the exclusive power of legislation given to provincial 
 legislatures by sub-s. 14: of s. 92 B. N. A. Act over pro- 
 cedure in civil matters, means procedure in civi! matters 
 within the powers of the provincial legislatures.^ 
 
 Application was made to the privy council for leave 
 to appeal from the foregoing judgment of the supreme 
 court. Their lordships, in refusing such leave, ex- 
 pressed these opinions: 
 
 — .... — — -, .... I . . . — I. ■ .. — , - . I- . — I .^M Ml I. I— ^. II. I ■■ ,,| Mil Ml, ,^ 
 
 ^ Can. Sup. Court R., vol- iii. Valin vs. Langlois. This case 
 came before the court on appeal from the judgment of Chief 
 Justice Meredith, of the superior court of Quebec, declaring the 
 act to be within the competency of the dominion parliament, 5 
 Q. L. R., No. 1. The Ontario court of common pleas in 1878 
 unanimously agreed that the act was binding on them. Ont. 
 Com. P. R. vol. xxix., p. 261. But certain judges of Quebec 
 held adverse opinions. Quebec L. R., vol. v., p. 191. 
 
JUDICIAL DECISIONS. 123 
 
 That there is no doubt about the power of the do- 
 minion parliament to impose new duties upon the exist- 
 ing provincial courts, or to give them new powers as to 
 matters which do not come within the classes of subjects 
 assigned exclusively to the legislatures of the provinces. 
 That the result of the whole argument offered to their 
 lordships had been to leave them under the impression 
 that there was here no substantial question requiring to 
 be determined, and that it would be much more likely 
 to unsettle the minds of her Majesty's subjects in the 
 dominion, and to disturb in an inconvenient manner the 
 legislative and other proceedings there, if they were to 
 grant the prayer of the petition and so throw a doubt on 
 the validity of the decision of the court of appeal below, 
 than if they were to advise her Majesty to refuse it.^ 
 
 In 1876, the legislature of Ontario passed an act^ inti- 
 tuled '* An act to secure i.niform conditions in policies of 
 fire insurance.'* This statute was imj)eached on the 
 ground mainly that the legislature of Ontario had no 
 power to deal with the general law of insurance ; that 
 the power to pass such enactments was within the legis- 
 lative authority of the dominion parliament, under s. 91, 
 8ub-s. 2, B. N. A. Act, *' regulation of trade and com- 
 merce." The question having come before the supreme 
 court of Canada, it held that the act in question was 
 within the competency of the Ontario legislature and is 
 applicable to insurance companies, whether foreign or 
 incorporated by the dominion.^ 
 
 * 5 App. Cas., 115. 
 
 ' 39 Vict, c. 24 ; Ont. Rev. Stat., [1877] c. 162. 
 
 ' Can. Sup. Court R., vol. iv., 215-349. The Citizens and the 
 Queen Ins. Co's. v. Parsons ; Western Insurance Co. v. Johnston. 
 The judgment of the supreme court affirmed tho judgments of 
 
124 CONSTITUTIONAL HISTORY. 
 
 The question came finally before the privy council on 
 appeal from the supreme court of Canada, and their lord- 
 ships decided : 
 
 That construing the words " regulation of trade and 
 commerce " by the various aids to their interpretation, 
 they would include political arrangements in regard to 
 trade and requiring the sanction of parliament, regula- 
 tion of trade in matters of inter-provincial concern, and 
 it may be that they would include general regulation of 
 trade affecting the whole dominion. Their lordships, 
 however, abstained from any attempt to define the 
 limits of the authority of the dominion parliament in 
 this direction. It was sufficient for the decision of the 
 case unrler review to say that, in their view, its authority 
 to legislate for the regulation of trade and commerce 
 does not comprehend the power to regulate by legisla- 
 tion the contracts of a particular business or trade, such 
 as the business of fire insurance, in a single province, 
 and therefore that its legislative authority did not in the 
 present case conflict or compete with the power over 
 property and civil rights assigned to the legislature of 
 Ontario by siib-s. 13 of s. 92. That the act in question, 
 so far as relates to insurance or property within the pro- 
 vince, may bind all fire insurance companies, whether 
 incorporated by imperial, dominion, provincial, colonial, 
 or foreign authority. That the act of the dominion par- 
 liament,4*equiring insurance companies to obtain licenses 
 from the minister of finance as a condition to their car- 
 
 the court of appeal for Ontario (4 App. Rep., Ont., 96, 103), 
 which had affirmed the judgments of the queen's bench ; 43 
 U.C.,Q.B. 261,271. 
 » 38 Vict, c. 20. 
 
JUDICIAL DECISIONS. 125 
 
 ryiDg on business in the dominion, is a general law ap- 
 plicable to foreign and domestic corporations, and in no 
 way interferes with the authority of the Ontario legis- 
 lature to legislate in relation to the contracts which cor- 
 porations may enter into in that province/ 
 
 Since the first session of the dominion parliament 
 until the end of that of 1886, between thirty and forty 
 statutes have been passed relating to insurance and 
 insurance companies. The local legislatures have also 
 during the same period granted acts of incorporation to 
 companies that do business within the limits of a 
 province. It is now authoritatively decided that the 
 terms of paragraph eleven of section 92 (giving powers 
 to provincial legislatures for provincial objects,) are con- 
 sidered sufficiently comprehensive to include insurance 
 companies, whose object is to transact business within 
 provincial limits. If a company desire to carry on 
 operations outside of the province, it will come under 
 the provisions of the general federal law, to which it 
 must conform, and which contains special provisions for 
 such purposes,^ The dominion parliament may give 
 power to contract for insurance against loss or damage 
 by fire, but the form of the contract, and the rights of 
 the parties thereunder, must depend upon the laws of 
 the country or province in which the business is done.^ 
 Policies of insui^ance being mere contracts of indemnity 
 against loss by fire, are, like any other personal con- 
 tracts against parties, governed by local or provincial 
 
 — „ , , , , „ 
 
 1 45 L. T. N. S. 721 ; Cartwright, 265. The atizens and Queen 
 Insurance Cos. v. Parsons. 
 
 * Fournier, J., Sup. Court R. vol. iv., p. 277. 
 
 • Harrison C. J., 43 U. C, Q. B. 261 ; Doutre, 267. 
 
126 CONSTITUTIONAL HISTORY, 
 
 laws. The provincial legislature has the power to regu- 
 late the legal incidents of contracts to be enforced 
 within its courts, and to prescribe the terms upon which 
 corporations, either foreign or domestic, shall be per- 
 mitted to transact business within the limits of the pro- 
 vince — the power being given to local legislatures by 
 the constitution to legislate upon civil rights and 
 property.* 
 
 The privy council, in their judgment, confirming that 
 of the Canadian courts, made special reference to the 
 fact that dominion legislation has distinctly recognized 
 the right of the provincial legislatures to incorporate 
 insurance companies for carrying on business within the 
 province itself. The statute passed in 1875 enacts 
 among other things: 
 
 " But nothing herein contained shall prevent any insurance 
 company incorporated by or under any act of the legislature of 
 the late province of Canada, or of any province of the dominion 
 of Canada, from carrying on any business of insurance within 
 the limits of the late province of Canada, or of such province 
 only, according to the powers granted to such insurance com- 
 pany within such limits as aforesaid, without such license as 
 hereinafter mentioned." 
 
 Section 28 of the act of 1877,^* consolidating certain 
 acts of the dominion parliament respecting insui'ance, 
 also sets forth : 
 
 *' This act shall not apply to any company within the exclu- 
 sive legislative control of any one of the provinces of Canada, 
 unless such company so desires ; and it shall be lawful for any 
 such company to avail itself of the provisions of this act ; and 
 if it do so avail itself, such company shall then have the power 
 of transacting its business of insurance throughout Canada.** 
 
 1 4 Ont App. 109. 
 ' 40 Vict., c. 42. 
 
JUDICIAL DECISIONS. 127 
 
 In the opinion of the privy council, this provision 
 contains a distinct declaration by the dominion parlia- 
 ment that each of the provinces had exclusive legislative 
 control over the insurance companies incorporated by 
 it; and therefore is an acknowledgment that such con- 
 trol was not deemed to be an infringement of the power 
 of the dominion parliament as to "the regulation of 
 trade and commerce.'* The privy council add that " the 
 declarations of the dominion parliament are not, of 
 course, conclusive upon the construction of the British 
 North America Act ; but when the proper construction 
 of the language used in that act to define the distribution 
 of legislative powers is doubtful, the interpretation put 
 upon it by the dominion parliament in its actual legis- 
 lation may properly be considered." 
 
 In this connection it is necessary to refer to the fact 
 that certain legislation in the province of Quebec affect- 
 ing insurance companies has been declared beyond the 
 competency of the local legislature. The act in question 
 (39 Yict., chap. "T) imposed a tax upon the policies of 
 such insurance companies as were doing business within 
 the province. The statute enacts : That every assurer 
 carrying on any business of assurance, other than that 
 of marine assurance exclusively, shall be bound to take 
 out a licensei in each year, and that the price of such 
 license shah consist in the payment to the Crown for 
 the use of the province at the time of the issue of any 
 policy, or making or delivery of each premium, receipt, 
 or renewal, of certain percentages on the amount 
 received as premium on renewal of assurance, such pay- 
 ments to be made by means of adhesive stamps to be 
 affixed on the pokey of assurance, receipts or renewals. 
 
128 CONSTITUTIONAL HISTORY. 
 
 For each contravention of the act a penalty of fifty dol- 
 lars is imposed. 
 
 The question of the constitutionality of the act camo 
 before the judicial committee of the privy council, who 
 decided : That the act was not authorized by sub-sections 
 two, and nine of section ninety-two of the B. N. A. Act 
 with respect to direct taxation and licenses for raising a 
 revenue for provincial, local or municipal purposes. 
 That a license act by which a licensee is compelled 
 neither to take out nor pay for a license, but which 
 merely providers that the price of a license shall consist 
 of an adhesive stamp, to be paid in respect of each trans- 
 action, not by the licensee, but by the person who deals 
 with him, is virtually a stamp act, and not a license act. 
 That the imposition of a stamp duty on policies, 
 renewals and receipts, with provisions for avoiding 
 the policy, renewal or receipt in a court of law, if 
 the stamjD is not aflSxed, is not warranted by the terms 
 of sub-section two of section ninety- two, which author- 
 izes the imposition of direct taxation within a province in 
 order to raise a revenue for provincial purposes/ 
 
 In pui^uance of authority given by the imperial act 
 (16 Yict., c. 21,) the province of Canada passed an act 
 (18 Yict., c. 82,) in consequence of which, in 1855, an 
 arrangement was made with the government for the 
 erection of a temporalities fund of the Presbyterian 
 
 * 3 A pp. Cas. 1090; Cartwright, 117. On appeal from a judg- 
 ment of the court of queen's bench of Quebec, affirming a 
 judgment of the superior court of Lower Canada that the act is 
 ultra tnres. 16 L. C. J., 198 ; 21 lb, 77 ; 22 lb. 307. See infra, p. 155 
 for a later decision upon a Quebec Statute imposing taxes on 
 commercial corporations. 
 
JUDICIAL DECISIONS. 129 
 
 Church of Canada in connection with the Church of 
 Scotland ;^ and an act of incorporation for tho manage- 
 ment thereof was obtained (22 Vict., c. 66) of the pro- 
 vince of Canada. In 187-4 it was decided to unite the 
 said church with three other churches. Subsequently in 
 the provinces of Ontario and Quebec, tho legislatures 
 passed two acts (38 Yict., c. 75, Out. Stat, and 38 Vict., 
 c. 62, Quebec Stat.), to give effect to this union. A.t the 
 same time the Quebec legislature passed an act (38 
 Vict, c. 64), to amend the act of the late province of 
 Canada (22 Vict., c. 66), with a view to the union of the 
 four churches, and to provide for tho administration of 
 the temporalities' fund. The union was subsequently 
 carried out in accordance with the views of the large 
 majority of the church in question : but a small minor- 
 ity protested against the union, and tested the validity 
 of the Quebec Act, 38 Vict., c. 61. Tho matter was 
 finally carried up to the privy council, which decided : 
 That the Act (22 Vict., c. 66) of the province of Canada, 
 which created a corporation having its corporate exist- 
 ence and rights in the provinces of Ontario and Quebec, 
 afterwards created by the B. N. A, Act, could not, after 
 the coming into force of that act, bo repealed or modi- 
 fied by the legislature of either of these provinces, or by 
 the conjoint operation of both provinciallegislatures, but 
 only by the parliament of the dominion. That the 
 Quebec Act of 1875 (48 Vict., c. 64), which assumed to 
 repeal and amend the act of the lata province of Canada, 
 
 ^ This church was entitled to share in the proceeds of the 
 clergy reserves funds by virtue of certain imperial statutes. See 
 suprGf p. 41. 
 
 9 
 
130 CONSTITUTIONAL HISTORY. 
 
 was invalid, inasmuch as its professed object and the 
 effect of its provisions was to destroy, in the first place, 
 a corporation which had been created by the legislature 
 of Canada before the union of 1867, and to substitute a 
 new corporation; and, in the second place, to alter 
 materially the class of persons interested in the coi-por- 
 ate funds, and not merely to impose conditions upon the 
 transaction of business by the corporation within the 
 province.* 
 
 The result of this judgment was the passage of an act 
 by the parliament of Canada in 1882, to amend the act 
 of the late province of Canada (22 Yict., c. 66), with 
 respect to the " management of the temporalities' fund 
 of the Presbyterian Church of Canada, in connection 
 with the Church of Scotland," and the acts amending 
 the same.* 
 
 In 1874, the legislature of Ontario passed an act 
 intituled, *' an act to amend and consolidate the law for 
 the sale of fermented or spirituous liquors."^ The pro- 
 visions of this act required that no person should *' sell 
 by wholesale or retail any spirituous, fermented, or other 
 manufactured liquors within the province of Ontario, 
 without having first obtained a license under this act, 
 authorising him to do so." The question was brought 
 before the courts whether the legislature of Ontario had 
 
 ^ 7 App. Cas. 136 : Cartwright, 351 ; Dobie v, the Temporali- 
 ties Board. Appeal on special leave from a judgment of the 
 court of queen's bench (3 L. N., 244), afiirming a judgment of 
 the superior court of the district of Montreal (3 L. N., 244) ; 
 Doutre, 247-265. 
 
 a 45 Vict, c. 124. Also, cc. 123 and 125. 
 
 » 37 Vict., c 32; Ont. Rev. Stat. (1877), c 181, ss.39, 40, 41. 
 
\ 
 
 JUDICIAL DECISIONS. 131 
 
 the power to pass the statute, under which certain pen- 
 alties were to be recovered, or to require brewers to 
 take out any license whatever for selling fermented or 
 malt liquors by wholesale. The matter came finally, on 
 appeal, before the supreme court of Canada, which 
 decided substantially as follows : 
 
 That it is not within the competency of a provincial 
 legislature to require brewers to take out a license for 
 the sale of fermented or malt liquors by wholesale; that 
 the power to tax and regulate the trade of a brewer, 
 being a matter of excise, the raising of money by 
 " taxation," as well as for the restraint and ''regulation 
 of trade and commerce," is comprised within the class of 
 subjects reserved by the ninety-first section of the British 
 North America Act, to the exclusive legislative author- 
 ity of the parliament of the dominion ; and that such a 
 license, imposed by a provincial statute, is a restraint 
 and regulation of trade, and not an exercise of municipal 
 or police power. That, under the 92nd section of the 
 imperial Act, local legislatui'es are empowered to deal 
 exclusively with such licenses only as are of a local or 
 municipal description. That the taxing power of a 
 provincial legislature is confined to direct taxation,^ in 
 order to raise a provincial revenue ; and to the grant of 
 licenses to shops, saloons, taverns, auctioneers, and 
 *' other licenses," for purely municipal and local objects, 
 for the purpose likewise of raising a revenue for provin- 
 cial, local, or municipal objects. That at the same time 
 
 ^ So affirmed by the judicial committee of the privy council, 
 Attorney-General of Quebec vs. The Queen Insurance Co., Law 
 Rep., 3 App., Cas. 1090. 
 
132 CONSTITUTIONAL HISTORY. 
 
 this taxing power of the local government must not be 
 exercised so as to encroach upon, or to conflict with, the 
 taxation in aid of dominion revenue, which is authorized 
 to bo exclusively imposed by the federal parliament.^ 
 
 By s. 2 of the Fisheries Act of 1868,- the minister of 
 marine and fisheries "may, where the exclusive right of 
 fishing does not already exist by law, issue, or authorize 
 to be issued, fishery leases and licenses for fisheries and 
 fishing wheresoever situated, or carried on, etc." In 
 18*74, the minister executed a lease of fishery of a 
 certain portion of a river in ]^ew Brunswick, which was 
 some forty or fifty miles above the ebb and flow of the 
 tide, though the stream for the greater part of that par- 
 ticular portion is navigable for canoes, small boats and 
 timber. Certain persons in New Brunswick, however, 
 claimed the exclusive right of fishing in this part of the 
 river, on the ground that they had i-eceived conveyances 
 thereof, and prevented the lessee of the dominion 
 government from enjoying the fishery under his lease. 
 The supremo court of Canada was at last called upon to 
 decide whether an exclusive right of fishing existed in 
 the parties who had received the conveyances. In other 
 words, the court was practically asked to decide the 
 question : Can the dominion parliament authorize the 
 minister of marine and fisheries to issue licenses to par- 
 ties to fish in rivers such as that described, where the 
 provincial government has before or after confederation 
 
 * Can. Sup. Court R., vol. ii., 70-142, Severn vs. The Queen. 
 On appeal from a judgment of the court of queen's bench for 
 Ontario. 
 
 « 31 Vict., c. 60. 
 
JUDICIAL DECISIONS. 133 
 
 granted lands that aro bounded on, or that extend across 
 such rivers ? The court decided : That the license 
 granted by the minister of marine and fisheries was 
 void, because the act in question only authorizes the 
 granting of leases *' where the exclusive right of fishing 
 does not already exist by law," and in this case the ex- 
 clusive right belonged to the owners of the land through 
 which that portion of the river flows. That the legis- 
 lation in regard to '' inland and sea fisheries " contem- 
 plated by the B. N. A. Act is not with reference to 
 property and civil rights — that is to say, not as to the 
 ownership of the beds of rivers or of the fisheries, or the 
 rights of individuals therein^ but to subjects affecting the 
 fisheries generally, tending to their regulation, protec- 
 tion and preservation, matters of a national and general 
 concern; in other words, all such general laws as enure 
 as well to the benefit of the owners of the fisheries as to 
 the public at large. That the parliament of the 
 dominion may properly exercise a general power for 
 the protection and regulation of the fisheries, and may 
 authorize the granting of licenses, where the property, 
 and therefore the right of fishing thereupon, belong to 
 the dominion, or where such rights do not already exist 
 by law ; but it may not interfere with existing exclusive 
 rights of fishing, whether provincial or private. That 
 consequently any lease granted by a dominion minister 
 to fish in freshwater non-tidal rivers, which are not the 
 property of the dominion, or in which the soil is not in 
 the dominion, is illegal ; that where the exclusive right 
 to fish has been acquired as incident to a grant of land 
 through which such river flows, the Canadian parlia- 
 ment has no power to grant a right to fish. That the 
 
134 CONSTITUTIONAL HISTORY. 
 
 ungranted lands in a province being in the Crown for 
 the benefit of the people, the exclusive right to fish fol- 
 lows as an incident, and is in the Crown as trustee for 
 the benefit of the people of the province, and therefore a 
 license by the minister of marine and fisheries would 
 be illegal.^ 
 
 ^ Can. Sup. Court R., vol. vi, pp. 52-143. The Queen vs. Robert- 
 son. On appeal from the exchequer court (Gwynne J.), which 
 held inter alia that the exclusive right of fishing existed in the 
 persons having the conveyances. The supreme court of New 
 Brunswick had also decided adversely to the exclusive right of 
 the lessee of the dominion government to fish under his lease. 
 ,2 Pug. and Bur., 580. 
 
CHAPTEE XIII. 
 
 JUDICIAL DECISIONS ON QUESTIONS OF JURISDICTION 
 CONTINUED. — BOUNDARY AWARD. 
 
 In 1878, the parliament of the dominion passed an 
 act cited as the " Canada Temperance Act, 1878.'* The 
 preamble sets forth " that it is very desirable to promote 
 temperance in the dominion, and that there should be 
 uniform legislation in all the provinces regarding the 
 traffic in intoxicating liquors." The act is divided into 
 three parts, the first of which relates to ''proceedings for 
 bringing the second part of this act into force ; '* the 
 second to " prohibition of traffic in intoxicating liquors ; " 
 and the third to ** penalties and prosecutions for offences 
 against the second part." The effect of the act when 
 brought into force in any county or town within the 
 dominion is, describing it generally, to prohibit the sale 
 of intoxicating liquors, except in wholesale quantities, 
 or for certain specified pui^poses, to regulate the traffic 
 in the excepted cases, and to make sales of liquors, in 
 violation of the prohibitions, and regulations contained 
 in the act, criminal offences punishable by fine, and for 
 the third or subsequent offence, by imprisonment. The 
 
136 CONSTITUTIONAL HISTORY. 
 
 supreme court of !N"ew Brunswick in 1879 decided^ 
 that the Act was ultra vires, but the supreme court of 
 Canada subsequently held that it was within the com- 
 petency of the parliament of Canada, and inter alia that 
 under the second sub-section of the 91st section of the 
 B. N. A. Act, *^ regulation of trade and commerce," par- 
 liament alone has the power of regulating the traffic in 
 intoxicating liquors in the dominion or any part of it.^ 
 The whole matter came finally before the privy council 
 who do not dissent from this opinion, but base their 
 decision on other grounds which render it unnecessary 
 to discuss the question of trade and commerce. Their 
 lordships considered fully the point whether the act falls 
 within any of the three classes of subjects enumerated 
 in section 92 and assigned exclusively to the provincial 
 legislatures, viz. : 
 
 9, Shop, saloon, tavern, auctioneer, and other licenses 
 in order to the raising of a revenue for provincial, local 
 or municipal purposes. 
 
 13. Property and civil rights in the province. 
 
 16. Generally, all matters of a merely local or private 
 nature in the province. 
 
 Their lordships decided that the act does not fall 
 within any of these classes of subjects, for the following 
 reasons : 
 
 The act is not a fiscal law — a law for raising revenue ; 
 on the contrary the effect of it may be to destroy or dim- 
 inish revenue ; and consequently could not have been 
 passed by the provincial legislature by virtue of any 
 
 ^ 3 Pug. and Bur., 139. 
 
 ' Can. Sup. Court R., vol. iii, pp. 505-574. 
 
JUDICIAL DECISIONS. I37 
 
 authority conferred ii]^on it by sub-section 9. And sup- 
 posing the effect of the act to be prejudicial to the 
 revenue derived by the municipality from licenses, it 
 does not follow that the dominion parliament might not 
 pass it by virtue of its general authority '' to make laws 
 for the peace, order and good government of Canada." 
 The act does not properly belong to the class of subjects, 
 "property and civil rights." It has in its legal aspect 
 an obvious and close similarity to laws which place 
 restrictions on the sale or custody of poisonous drugs, or 
 of dangerously explosive substances. The primary matter 
 dealt with is the public order and safety. Upon the 
 same considerations the act cannot be regarded as legis- 
 lation in relation to civil rights. In however large a 
 sense these words are used, it could not have been 
 intended to prevent the parliament of Canada from 
 declaring and enacting certain uses of property and cer- 
 tain acts in relation to property, to be criminal and 
 wrongful. Laws designed for the promotion of j^ublic 
 order, safety or morals, and which subject those who 
 contravene them to criminal procedure and punishment, 
 belong to the subject of public wrongs rather than to 
 that of civil rights. They are of a nature which fall 
 within the general authority of parliament, to make 
 laws for the order and good government of Canada, and 
 have direct relation to criminal law, which is one of the 
 enumerated classes of suDjects assigned exclusively to 
 the parliament of Canada. Few, if any, laws could be 
 made by the parliament for the peace, order and good 
 government of Canada which did not in some incidental 
 way affect property and civil rights ; and it would not 
 have been intended, when assuring to the provinces 
 
138 CONSTITUTIONAL HISTORY. 
 
 exclusive legislative autaority on the subject of property 
 and civil rights, to exciude the parliament from the 
 exercise of this general power whenever any such inci- 
 dental interference would result from it. Their lordships 
 cannot concur in the view that the act " which in effect 
 authorizes the inhabitants of each town or parish to 
 regulate the sale of liquor, and to direct for whom, for 
 what purposes and under what conditions spirituous 
 liquors may bo sold therein, deals with matters of a 
 merely local nature."^ On the contrary, the declared 
 object of parliament in passing the act is that there 
 should be uniform legislation in all the provinces respect- 
 ing the traffic in intoxicating liquors, with a view to 
 promote temperance in the dominion. The act as soon 
 as it was passed became a law for the whole dominion, 
 and the enactments of the first part relating to the 
 machinery for bringing the second part into force, took 
 effect and might be put into motion at once and every- 
 where within it. The conditional application of certain 
 parts of the act does not convert the act itself into 
 legislation affecting a purely local matter. The legisla- 
 tion in question is clearly meant to apply a remedy to 
 an evil which is assumed to exist throughout the domi- 
 nion, and the local option, as it is called, no more loca- 
 lizes the subject and scope of the act than a provision 
 in an act for the prevention of contagious diseases in 
 cattle that a public officer should proclaim in what dis- 
 tricts it should come into effect, would make the statute 
 itself a mere local law for each of these districts. In 
 statutes of this kind the legislation is general, and the 
 
 ^ Allen C. J., 3 Pug. and Bar., 139. 
 
JUDICIAL DECISIONS. 139 
 
 provision for the special application of it to particular 
 places does not alter its character.^ 
 
 The immediate effect of this important judgment on 
 the Temperance Act was the passage by the parlia- 
 ment of Canada, in the session of 1883, of *'an act 
 respecting the sale of intoxicating liquors and the issue 
 of licenses therefor." The preamble of the act sets forth 
 as the grounds for legislation that "it is desirable to 
 regulate the traffic in the sale of intoxicating liquors ; 
 that there should be a uniform law regulating the same 
 throughout the dominion ; that provision should be made 
 for the better preservation of peace and order." The 
 act provides for the issue of licenses to hotels, saloons, 
 shops, vessels, and wholesale dealers, and exacts only 
 such fees as are necessary to the executioii of the act.^ 
 
 Subsequent to the passage of this Act, the judicial 
 committee of the privy council rendered a judgment 
 which has a very important bearing on the question of 
 jurisdiction in the matter of the regulation of liquor 
 traffic in a province, and consequently on the constitu- 
 tionality of the measui-e just mentioned. The foui-th 
 
 ^ Judgment of the lords of the judicial committee of the privy 
 council on the appeal of Charles Russell vs- The QueeUj on the 
 information of Woodward, from the supreme court of New 
 Brunswick, delivered 2 3rd June, 1882. 7 App. Gas., 829. 
 
 * 46 Vict., c. 30; (see reference to subject in his Excellency's 
 speech, Jour., p. 14.) But strong objections were taken in the 
 House of Commons to the act on the ground (as set forth in a 
 resolution) that " the parliament of Canada should not assume 
 jurisdiction, as proposed by the said bill, until the question of 
 jurisdiction has been settled by the court of last resort." Can. 
 Com, J., May 22. See Can. Hans., May 16, 21 and 22. 
 
140 CONSTITUTIONAL HISTORY. 
 
 and fifth sections of the Liquor License Act* of Ontaino, 
 which has come under the review of the privy council on 
 the appeal of Hodge v. the Queen from the court of 
 appeal of the province, authorizes the appointment of 
 license commissioners to act in each municipality, and 
 empowers them to pass resolutions for defining the con- 
 ditions and qualifications requisite to obtain tavern or 
 shop licenses for sale by retail of spirituous liquors with- 
 in the municipality; for limiting the number of licenses; 
 for declaring that a limited number of persons qualified 
 to have tavern licenses may be exempted from having 
 all the tavern accommodation required by law; for regu- 
 lating licensed taverns and shops; for defining the duties 
 and powers of license inspectors. These commissioners 
 may also impose penalties for an infraction of their reso- 
 lutions. The sale of intoxicating liquors is also prohibited 
 in the act, under penalties, from Saturday evening, 7 
 o'clock, to Monday morning, 6 o'clock. 
 
 By virtue of this act, the license commissioners of 
 Toronto passed certain resolutions for the regulation of 
 taverns and shops in that city. Subsequently, Mr. Hodge, 
 a proprietor of an hotel, who was duly licensed to sell 
 liquor, and to keep a billiard saloon, was convicted and 
 fined before the police magistrate of Toronto, for unlaw- 
 fully permitting a billiard table to be used, and a game 
 to be played thereon, during the time prohibited by the 
 act, and by the resolution of the commissioners ; that is, 
 after ^ o'clock on Saturday night. The conviction was 
 quashed by the court of queen's bench as illegal. As- 
 suming the right of the legislature of Ontario to legislate 
 
 ^ R. S. O. [1877] c 181. 
 
JUDICIAL DECISIONS. 141 
 
 on the subject, the court held that it could not devolve or 
 delegate its powers to the discretion of a local board of 
 commissioners. The case was then taken to the court of 
 appeal for Ontario, which reversed the decision of the 
 queen's bench and affirmed the conviction. The court 
 decided substantially that the provincial legislature, and 
 it alone, had the power to pass laws for the infliction of 
 penalties or imprisonment for the enforcement of a law 
 of a province in relation to a matter coming within a 
 class of subjects with which alone the province had the 
 right to deal ; ^ and that the legislature had power to 
 delegate its authority as it had done in the matter in 
 question. 
 
 On the question at issue coming before the judicial 
 committee of the privy council, their lordships were of 
 opinion that the decision of the court of appeal of Ontario 
 should be affirmed, and the appeal dismissed with costs. 
 In their elaborate judgment, they state at the outset that 
 they do not consider it necessary in the present ease to 
 lay down any general rule or rules for the construction 
 of the British North America Act. They arc impressed 
 with the justice of an observation made by Chief Justice 
 Hagarty in delivering the unanimous judgment of the 
 court of queen's bench, "that in all these questions of 
 ultra vires, it is the wisest course not to widen the dis- 
 cussion by considerations not necessarily involved in the 
 decision of the point in controversy."^ They then pro- 
 ceed to notice the argument of the appellants that the 
 
 » See sub-8. 15, s. 92, B. N. A. Act, 1867. 
 
 * Their lordships also referred to what they had previously 
 recommended in determining such cases ; see in/ra, p. 163. 
 
142 CONSTITUTIONAL HISTORY. 
 
 legislature of Ontario had no power to pass any act to 
 regulate the liquor traffic ; that the whole power to pass 
 such an act was conferred on the dominion parliament, 
 and consequently taken from the provincial legislature 
 by section 91 of the British North America Act; and 
 that it did not come within any of the classes of subjects 
 assigned exclusively to the provincial legislatures by 
 section 92. The clause in section 91 which the Liquor 
 License Act, 187*7, was said to infringe was No. 2, '' the 
 regulation of trade and commerce;" and it was urged 
 that the decision of their lordships in Eussell v. the 
 Queen was conclusive — " that the whole subject of the 
 liquor traffic was given to the dominion parliament, and 
 consequently taken away from the provincial legisla- 
 tures." It appears, however, to their lordships that the 
 decision mentioned *'ha8 not the efiPect supposed, and 
 that, when properly considered, it should be taken rather 
 as an authority in support of the judgment of the court 
 of appeal." The sole question there was, "whether it 
 was competent for the dominion parliament, under its 
 general powers, to make laws for the peace, order, and 
 good government of the dominion, to pass the Canada 
 Temperance Act, 1878, which was intended to be applic- 
 able to the several provinces of the dominion, or to such 
 parts of the provinces as should locally adopt it." They 
 then proceed to quote portions of the previous judgment 
 in Russell and the Queen to show that the matter of the 
 act in question does not properly belong to the class of 
 subjects, ** property and civil rights," within the mean- 
 ing of sub-section 13, but is rather one of those matters 
 relating to public order and safety, which fall within the 
 general authority of parliament to make laws for the order 
 
JUDICIAL DECISIONa 143 
 
 and good government of Canada.^ It, therefore, appears to 
 their lordships that Kus83ll v. the Queen, when properly 
 understood, is not an authority in support of the aj^pel- 
 lant's contention, and their lordships do not intend to 
 vary or depart from the reasons expressed for their judg- 
 ment in that case. The principle which that case and 
 the case of the Citizens* Insurance Company illustrate is, 
 that subjects which in one aspect and for one i)uriD08e 
 fall within section 93, may in another aspect and for an- 
 other purpose fall within section 91.'"^ 
 
 In considering the subject-matter and legislative char- 
 acter of sections four and five of the License Act of On- 
 tario (as given in a previous page) their lordshijxs j^oint 
 out that the act " is so far confined in its operations to 
 municipalities in the province of Ontario, and is entirely 
 local in its character and operation/* The matters dealt 
 with in the sections mentioned " seem to be of a purely 
 local nature in the province, and to be similar to, though 
 not identical in all respects with, the powers then belong- 
 ing to municipal institutions under the previously exist- 
 ing laws passed by the local parliaments." Their lord- 
 
 * Supra, pp. 135-139. 
 
 ^ In the case of the corporation of Three Rivers and Suite, the 
 court of queen's bench of Quebec has given a decision, holding 
 precisely in principle what the privy council has held in the 
 Hodge case. See Mr. Justice Ramsay's judgment, 5 Legal News, 
 330. Also Poulin and the corporation of Quebec, 72 LR., 387; 
 5 Legal News, 334 ; 6 lb. 209, 214. In the first mentioned case 
 the supreme court of Canada (Rep. vol. xi. i>. 25.) sustained the 
 decision of the court of queen's bench of Quebec, and declared 
 the Qne])ec License Act (41 Vict., c- 33) intra vires of the legislature 
 of that province. The case of Hodge v. the Queen was considered 
 by the court to cover the constitutional ground. 
 
144 CONSTITUTIONAL HISTORY. 
 
 ships consequently decide : *' The powers intended to be 
 confeiTcd by the act in question, when properly under- 
 stood, are to make regulations in the nature of police or 
 municipal regulations of a merely local character for the 
 good government of taverns, etc., licensed for the sale of 
 liquors by retail, and such as are calculated to preserve, 
 in the municipality, peace and public decency, and re- 
 prees drunkenness and disorderly and riotous conduct. 
 As such they cannot be said to interfere with the general 
 regulation of trade and commerce which belongs to the 
 dominion parliament, and do not conflict with the pro- 
 visions of the Canada Temperance Act, which does not 
 appear to have as yet been locally adopted. The subjects 
 of legislation in the Ontano Act of 18t7, sections 4 and 
 5, seem to come within the heads 8, 15, and 16 ^ of section 
 92 of the British North America Act, 1867. Their lord- 
 ships are, therefore, of opinion that in relation to sections 
 4 and 5 of the act in question, the legislature of Ontario 
 acted within the powers conferred upon it by the Impe- 
 rial Act of 1867, and that in this respect there is no 
 conflict with the powers of the dominion parliament.'* 
 
 "We have cited, in the foregoing paragraph, the most 
 material part of the decision ; ^ but their lordships went 
 farther and considered the objection raised by the appel- 
 lant — that the imperial parliament had conferred no 
 
 *8. ** Municipal institutions in the province." 15. *' The im- 
 position of punishment by fine, penalty, or imprisonment, for 
 enforcing any law of the province made in relation to any matter 
 coming within any of the classes of subjects enumerated in this 
 section." 16. " Generally all matters of a merely local or private 
 nature in the province." 
 
 ' For text of judgment, see Legal Kews, January 19, 1884. 
 
JUDICIAL DECISIONS. 145 
 
 authority on the local legislature to delegate its powers 
 to the license commissioners or any other persons. In 
 other words, that the power conferred by the imperial 
 parliament on the local legislature should be exercised in 
 full by that body, and by it alone. This objection, in 
 their opinion, is founded on an entire misconception of 
 the true character and position of the provincial legisla- 
 tures, ^' which are in no sense delegates of, or acting 
 under any mandate from, the imperial parliament.'* 
 Their lordships say emphatically that when the British 
 North America Act enacted that there should be a legis- 
 lature for Ontario, and that its legislative assembly should 
 have exclusive authority to make laws for the provinces 
 and for provincial purposes in relation to the matters 
 enumerated in section 92, '' it conferred powers not in 
 any sense to be exercised by delegation from, or as agents 
 of the imperial parliament, but authority as plenary 
 and as ami)le within the limits prescribed by section 92, 
 as the imperial parliament, in the plenitude of its j^ower, 
 possessed and could bestow." Within these limits of 
 subjects and area, " the local legislature is supreme, and 
 has the same authority as the imperial parliament, or 
 the parliament of Canada would have had under like cir- 
 cumstances to confide to a municipal institution or a 
 body of its own creation, authority to make by-laws or 
 resolutions as to subjects specified in the enactment, and 
 with the view of carrying the enactment into operation 
 and effect." In their opinion such an authority is ancil- 
 lary to legislation, and without it an attempt to provide 
 for varying details and machinery to carry them out 
 might become oppressive, or absolutely fail. A legisla- 
 tui'o, in committing certain regulations to agents or dele- 
 10 
 
146 ' CX)XSTITUTIONAL HISTORY. 
 
 gates like license commissioners, retains its powers intact, 
 and can, whenever it pleases, destroy the agency it has 
 created, and set up another, or take the matter directly 
 into its own hands. 
 
 The result of this very important judgment was the 
 passage by the dominion parliament of an act which 
 referred the question of the constitutionality of the Liquor 
 License Act of 1883 to the supreme court of Canada.* 
 A special case containing the following questions was 
 accordingly referred by the governor-general in council 
 to the court : 
 
 * 1 Are the following acts in whole or in part within 
 the legislative authority of the parliament of Canada, 
 namely : 
 
 (1) "The Liquor License Act, 1883. 
 
 (2) *' An Act to amend * The Liquor License Act, 
 1883 ? ' 
 
 " 2. If the court is of opinion that a part or parts only 
 of said acts are within the legislative authority of the 
 parliament of Canada, what part or parts of said acts are 
 BO within such legislative authority ? ** 
 
 The court^ certified to the governor-general in council 
 that, in their opinion, the acts referred to them " are, 
 and each of them is, ultra vires of the legislative autho- 
 rity of the parliament of Canada, except in so far as the 
 said Acts respectively purport to legislate respecting 
 those licenses mentioned in section seven of the said 
 
 ' 47 Vict, c 32, s. 26. 
 
 ' See 48-49 Vict., c. 74, the schedule of which contains order of 
 reference to, and the judgment of, the supreme court. Mr. Justice 
 Henry was of opinion that "the said acts are vltra vires in 
 whole." 
 
JUDICIAL DEaSIONS. 147 
 
 "The Liquor License Act, 1883," which are there deno- 
 minated vessel licenses and wholesale licenses, and except 
 also in so far as the acts respectively relate to the carry- 
 ing into effect of the provisions of the Canada Tempe- 
 rance Act, 18*78." The result of this decision was the 
 suspension of the portions of the acts declared to be 
 ultra vires. Subsequently the matter came before the 
 judicial committee of the privy council, who maintained 
 the right of the provincial legislatures to deal with the 
 Bubject of licenses for the sale of liquors.^ 
 
 Among the matters that have come before the supreme 
 court of Canada and the judicial committee of the privy 
 council is the question, whether the government of 
 Canada or the government of a province is entitled to 
 estates escheated to the Crown for want of heirs. The 
 controversy on this question first arose in 1874, when 
 the legislature of Ontario passed an act ^ to amend the 
 law respecting escheats and forfeitures. This act was 
 disallowed by the governor-general in council, on the 
 report^ of the minister of justice (Mr. Fournier, now one 
 of the judges of the supreme coui-t) on the following 
 grounds : 
 
 1. " That escheat is a matter of prerogative which is 
 not by the British North America Act vested in a pro- 
 vincial government or legislature. 
 
 2. That it is not one of the subjects coming within the 
 enumeration of the subjects left exclusively to the pro- 
 vincial legislatures. 
 
 1 8 Legal News, 17, 26, 379,409. 
 ' 27 Vict., c. 8, Ont Stat, of 1874. 
 ^ Can. Sess. P., 1882, No. 141. 
 
148 CONSTITUTIONAL HISTORY. 
 
 3. That a provincial legislature, by its very statutable 
 position, has no power to deal with prerogatives of the 
 Crown. 
 
 4. That the lieutenant-governor has not under the 
 statute, or by his commission, any power to deal wUh 
 the prerogatives of the Crown ; and not being empowered 
 to assent in the Queen's name to any law of a provincial 
 legislature, he cannot bind her Majesty's prerogati70 
 
 rights." 
 
 Subsequently in 18^6, by a decision of the court of 
 queen's bench, of the province of Quebec, upon an appeal 
 from a lower court, the right of the province to the con- 
 trol of escheats and forfeitures, within the province, was 
 affirmed. Whereupon it was agreed between the domin- 
 ion and provincial governments that — until or unless 
 there should be a judicial decision establishing a con- 
 trary principle—'' lands and personal property in any 
 province, escheated or forfeited by reason of intestacy, 
 without lawful heirs or next of kin, or other parties 
 entitled to succeed, are subjects appertaining to the pro- 
 vince, and within its legislative competency," while, on 
 the other hand, " lands and personal property forfeited 
 to the Crown for treason, felony, or the like, are subjects 
 appertaining to the dominion, and within its legislative 
 
 competence." ^ 
 
 Accordingly the legislature of Ontario again passed an 
 act,2 which enables the attorney-general to take posses- 
 Bion of escheated lands or cause an action of ejectment 
 
 > Can. Sess. P., 1877, No. 89, pp. 88-105. 
 
 « R. S. 0. (1877), c 94 (40 Vict., c. 3). The legislature of New 
 Brunswick passed a law to the same effect in 1877, c. 9. 
 
JUDICIAL DECISIONS. I49 
 
 to be brought for the recovery thereof without any inqui- 
 sition being first necessary. The lieutenant-governor 
 may make grants of escheated or forfeited lands, or may 
 release forfeited property, or waive the forfeiture. He 
 may also make an assignment of personality to which 
 the Crown has become entitled. 
 
 The question of the validity of this statute was brought 
 before the courts in 1878, when the attorney-general of 
 Ontario filed an information in the court of chancery 
 for the purpose of obtaining possession of land in tho 
 city of Toronto, which was the property of one Andrew 
 Mercer, who had died intestate and without leaving any 
 heirs or next of kin, on the ground that it had escheated 
 to the Crown for the benefit of the province. Andrew 
 Mercer, a natural son of the deceased, demurred to this 
 information for want of equity, and the court of chancery 
 held that the Escheat Act of Ontario ^ was not ultra vires, 
 but that the escheated property accrued to the benefit of 
 Ontario. On appeal to the court of appeal for Ontario, 
 that court held that the provincial governments are 
 entitled, under the B. N. A. Act, to recover and appro- 
 priate escheats, and affirmed the ord'^r over-ruling the 
 said demurrer, and dismissed the aj^peal with costs. 
 Against this judgment the defendant, Andrew Mercer, 
 appealed to the supreme court, and the parties agreed 
 that the appeal should be limited to the broad question 
 whether the government of Canada or of a province is 
 entitled to estates escheated to the Crown. The dominion 
 government, concurring in the view of the appellant's 
 counsel, that the hereditary revenues of the Crown belong 
 
 1 R. S. 0. [1S77,] c. 94. 
 
150 CONSTITUTIONAL HISTORY. 
 
 to the dominion, intervened in order to have the question 
 determined. 
 
 The supreme court held that the province of Ontario 
 does not represent her Majesty in matters of escheat in 
 that province, and therefore the attorney general could 
 not appropriate the property escheated to the Crown in 
 this case for the purposes of the province, and that the 
 Escheat Act of Ontario was ultra vires} That any revenue 
 derived from escheats is by section 102 of the B. NT. A. 
 Act placed under the control of the parliament of Canada 
 as part of the consolidated revenue fund of Canada, 
 and no other part of the act exempts it from that dis- 
 position.^ 
 
 The case was brought finally before the privy council,^ 
 who came to the conclusion that the escheat in question 
 belongs to the province of Ontario. Their lordships base 
 their decision mainly on their interpretation of section 
 109, which is the only clause in the B. N. A. Act by 
 which any sources of revenue appear to be distinctly 
 reserved to the provinces, viz. : 
 
 " All lands, mines, lainerals, and royalties, belonging 
 to the several provinces of Canada, Nova Scotia, and 
 New Brunswick, at the union, and all sums then due or 
 payable for such lands, mines, minerals, or royalties, 
 shall belong to the several provinces of Ontario, Quebec, 
 Nova Scotia, and New Brunswick, in which the same 
 are situate or arise, subject to any trusts existing in res- 
 
 ^ 5 Can. Sup. Court R. 538. The chief justice and another 
 judge of the court dissented from the opinion of the majority. 
 * Per Fournier, Taschereau, and Gwynne, JJ. 
 " The attorney- general of Ontario r. Mercer ; July 18, 1883. 
 
JUDICIAL DECISIONS. 151 
 
 pect thereof, and to any interest other than that of the 
 province in the same." 
 
 The real question, in their lordships* opinion, is as to 
 the effect of the words *' lands, mines, minerals, and 
 royalties " taken together. They see 10 reason why the 
 word "royaicies" in the context should not have its 
 primary and appropriate sense as to all the subjects with 
 which it is here associated, — lands, as well as mines and 
 minerals. Even as to mines and minerals, it here neces- 
 sarily signifies rights belonging to the crown, /wra coronce. 
 The general subject of the section is of a high political 
 nature ; it is the attribution of royal territorial rights, 
 for the purposes of revenue and government, to the pro- 
 vinces in which they are situate or arise. In its primary 
 and natural sense, ''royalties" is merely the English 
 translation or equivalent of regalitateSj jura regalia^ jura 
 regia. It stands on the same footing as the right to 
 escheats, to the land between high and low watermark, 
 to treasure trove, and other analogous rights. Their 
 lordships find nothing in the subject or the context, or 
 in any other part of the act, to justify a restriction of 
 its sense to the exclusion of royalties, such as escheats, 
 in respect of lands. The larger interpretation (which 
 they regard as in itself the more proper and natural) 
 also seems to be that most consistent with the nature 
 and general objects of this particular enactment, which 
 certainly includes all other ordinary territorial revenues 
 of the crown arising within the respective provinces.^ 
 
 An important question came before the supreme court 
 of Canada in 1887, on an appeal of the Ontario court of 
 
 1 See 6 Legal News, 234, 244. Also Can. Sess. P., 1884, No. 117, 
 for papers respecting escheated lands. 
 
152 CONSTITUTIONAL HISTORY. 
 
 appeal, affirming a judgment of the chancery division, 
 Trhich restrained the St. Catharines Milling & Lumber Co. 
 from cutting timber on lands south of Wabigoon Lake in 
 Algoma, claimed to be public lands of the province.^ 
 Though the question at issue is not yet definitely decid- 
 ed, yet it is expedient to call attention to the main 
 points involved, inasmuch as all the courts in Canada to 
 which it has been referred have come to the same con- 
 clusion. The lands in question formed a portion of the 
 territory declared, under the Boundary Award,- to be 
 within the territorial limits of Ontario. In 1873 they 
 were surrendered by the Indians to the government of 
 Canada by the Korth-West Angle Treaty I^o. 3. In the 
 answer of the defendants it was pleaded that the lands 
 and timber thereon were, with other lands and timber in 
 the district, until quite recently claimed by the Indians 
 who inhabited that part of the dominion of Canada. 
 That the claims of such Indians have alwavs been 
 acknowledged by the various governments of Canada, 
 and that such claims are, as respects the lands in ques- 
 tion, paramount to the claim of the Crown as represent- 
 ed by the government of Ontario. That the govern- 
 ment of Canada have acquired the Indian title to these 
 lands in consideration of a large expenditure of money 
 for the benefit of these Indians, and have for that 
 
 1 Sup. Court R., vol. 13, pp. 577-677. Tlie St. Catharine's Mill- 
 ing & Lumber Co. (appellants), and the Queen, on the informa- 
 tion of the attorney - general for the province of Ontario 
 (respondent), on appeal from the court of appeal for Ontario. 
 The matter has been appealed to the judicial committee of the 
 privy council. 
 
 ^ See infra, pp. 156-158, for a brief account of this award. 
 
JUDICIAL DECISIONa 153 
 
 rea^^on and by virtue of the inherent right of the Crown 
 as represented by the government of Canada, alone the 
 right to grant licenses to cut timber on the tract in dis- 
 pute. The majority of the court^ decided that the 
 boundary of the territory in the north-west angle being 
 established, and the lands in question being found within 
 the province of Ontario, they necessarily form part of 
 the public domain of that section, and are public lands 
 belonging to the same by virtue of sub-sec. 5 of sec. 92, 
 and sec. 109 of the B.X. A. Act, as to lands, mines, 
 minerals and royalties, and of sec. 117, by which the 
 provinces are to retain all their property not otherwise 
 disposed of by that act, subject to the right of the do- 
 minion to assume any lands or public property required 
 for fortifications or for the defence of the country.^ Only 
 those lands specifically set apart and reserved for the 
 use of the Indians are '' lands reserved for Indians '' 
 within the meaning of sec. 91, item 24, of the B.X.A. 
 Act. In the course of their opinions, the majority of 
 the judges dwelt on certain points interesting to the 
 historical as well as legal student. They laid it down 
 that "on the discovery of the American continent, 
 the principle was asserted or acknowledged by all 
 European nations that discovery followed by active 
 possession gave title to the soil to the government 
 
 '• Ritchie C.J., Taschereau and Henry JJ.; Strong and 
 Gwynne JJ., dissenting. The most elaborate opinion in the 
 whole question is by Boyd C, in the Chancery division of the 
 high court of justice for Ontario (10 O.R., 196). The opinions 
 of Strong and Gwynne JJ., on the other side, merit a careful 
 st"dy. 
 
 ' See app. A. to this work for full text of these sections. 
 
15i CONSTITUTIONAL HISTORY. 
 
 by whose subjects, or by whose authority, it was 
 made, not only against other European governments, 
 but against the natives themselves. While the dif- 
 ferent nations of Europe respected the rights^ of the 
 natives as occupants, they all asserted the ultimate 
 dominion and title to the soil to be in themselves."^ That 
 such was the case with the French Government in Can- 
 ada, during its occuj^ancy thereof, is an incontrovertible 
 fact. The king was vested with the ownership of all 
 the ungranted lands in the colony as part of the crown 
 domain, and a royal grant conveyed the full estate and 
 entitled the grantee to possession.^ When by the treaty 
 of 1763, France ceded to Great Britain all her rights of 
 sovereignty, property and possession over Canada, it is 
 unquestionable that the full title of the territory ceded 
 become vested in the new sovereign, and that he there- 
 after owned it in allodium as part of the crown domain, 
 in as full and ample a manner as the king of France had 
 previously owned it. At no time had the sovereign of 
 Great Britain ever divested himself of the ownership of 
 the public lands to vest it in the Indians. For obvious 
 political reasons and motives of humanity and benevol- 
 ence, it has, no doubt, been the general policy of the 
 crown, as it had been at the times of the French 
 authorities, to respect the claims of the Indians. But 
 this, though it unquestionably gives them a title to the 
 favourable consideration of the government, does not give 
 
 * Judge Tascliereau very properly thinks ** claims" the proper 
 word here. 
 
 ^ Sup. Court of Louisiana, cited by Taschereau J., s. 4, La. 
 An. 141. 
 
 * Taschereau, J., 644. 
 
JUDICIAL DECISIONS. 155 
 
 them any title in law — any title that a court of justice 
 can recognize as against the crown. The Indians must 
 in the future, every one concedes it, be treated with the 
 same consideration for their just claims and demands 
 that they have received in the past, but it will not be be- 
 cause of any legal obligation to do so, but as a sacred 
 political obligation in the exe cution of which the State 
 must be free from judicial control.^ 
 
 In 1882 the Quebec legislatui'e passed a statute* "to 
 impose certain direct taxes " on banks, insurance com- 
 panies, and every incorporated company carrying on 
 any labour, trade or business in the province. Payment 
 was resisted of the taxes thereby imposed, and the 
 queen's bench reversed a decision of the superior court 
 that the Quebec legislature had no power to pass the 
 statute, on the grounds that the tax is a direct one 
 and that it is also a matter of a local or private nature in 
 the province, and so falls within the jurisdiction of the 
 provincial legislature. The case was carried before the 
 judicial committee of the privy council, who affirmed the 
 judgment of the queen's bench that the tax in question 
 was direct taxation within class two of section ninety- 
 two of the federation act. They also laid it down that a 
 corporation doing business in the province is subject to 
 taxation under section ninety-two, sub-section two, 
 though all the shareholders are domiciled or resident 
 out of the province.^ 
 
 ■^ ■■ ■' ' ■ ■■ - ' ' " — ■'■ ■ ' ' — •^ — ■'■■ l. - l.! II I. MM— ., ■ I ■ ■.-.■^,— ,. I ,1^ 
 
 * Taschereau J., 648, 649. See also opinion of Henry J., 630. 
 
 M5 Vict. (Q),c.22. 
 
 « 10 Leg. News, 259-264.— Their lordships add : " There is 
 nothing in the previous decisions on the question of direct taxa- 
 tion which is adverse to this view. In the case of the Queen 
 
156 CONSTITUTIONAL HISTORY. 
 
 Reference has been made, in connection with the case 
 just cited, to the dispute between the governments of On- 
 tario and Canada as to the boundary of the province on 
 the north and west. This question has given rise to a vast 
 amount of legal and political literature since the acquisi- 
 tion of the North-West Territories, and it is necessary 
 here to state briefly its present position. In 1878 three 
 arbitrators were chosei on behalf of the Dominion and 
 Ontario governments to come to a settlement of the 
 question.' They arrived subsequently at a unanimous 
 decision, but while the Ontario government accepted the 
 the award as satisfactory, the Dominion government 
 took no steps whatever in the matter. The subject re- 
 mained in abeyance until 1884: when a case was ar- 
 ranged for reference to the judicial committee of the 
 privy council, but before the case was argued, the do- 
 Insurance Company [3 App. Ca. 1090, supra, p. 127], the dis- 
 puted tax was imposed under cover of a license to be taken out 
 by insurers. But nothing was to be paid directly on the license, 
 nor was any penalty imposed upon failure lo take one. The 
 price of the license was to be a percentage on the premiums 
 received for insurances, each of which was to be stamped 
 accordingly. Such a tax would fall within any definition of 
 indirect taxation, and the form given to it was apparently with 
 the view of bringing it under class nine of section ninety-two, 
 which relates to licenses. In Reed's case (10 App. Ca. 141) the 
 tax was a stamp duty on exhibits produced in courts of law, 
 which in a great many, perhaps in most, instances would 
 certainly not be paid by the person first chargeable with it." 
 
 ^ Ann. Reg. 1878, pp. 187-194. The arbitrator for Ontario was 
 Chief Justice Harrison ; for the Dominion, Sir Frarcis Hincks; 
 Sir Edward Thornton, British Minister at Washington, was the 
 third, chosen by the two conjointly. 
 
JUDICIAL DECISIONS. 151 
 
 minion government withdrew, so that it went before 
 their lordshij^s only as affects the boundary between On- 
 tario and Manitoba. At an early stage of the proceed- 
 ings, their lordships decided that the award was not 
 binding, inasmuch as no legislation had taken place to 
 give effect to the same, but they found at the same time 
 that " so much of the boundary lines laid down by that 
 award as relates to the territory now in dispute between 
 Ontario and Manitoba to bo substantially correct." Ac- 
 cordingly they find "the true boundary between the 
 western part of the province of Ontario and the south- 
 eastern part of the province of Manitoba to be so much 
 of a line drawn to the Lake of the Woods, through the 
 waters eastward of that lake and west of Long Lake, 
 which divide British ^N'orth America from the territory 
 of the United States, and thence through the Lake of the 
 Woods to the most northwestern point of that lake as runs 
 northward from the United States boundary, and from the 
 most northwestern point of the Lake of the Woods a line 
 drawn due north, until it strikes the middle line of the 
 course of the river discharging the waters of the lake 
 called Lac Seul, or Lonely Lake, whether above or be- 
 low its confluence with the stream flowing from the 
 Lake of the Woods towards Lake Winnipeg ; and their 
 lordships find the true boundary between the same two 
 provinces to the north of Ontario and to the south of 
 Manitoba, proceeding eastward from the point at which 
 the before -mentioned line strikes the middle line of the 
 com-se of the river last aforesaid to be along the middle 
 line of the course of the same river (whether called by 
 the name of the English Eiver or as to the part below 
 the confluence by the name of the Eiver Winnipeg) up 
 
158 CONSTITUTIONAL HISTORY. 
 
 to Lac Seul, and thence along the middle line of Lac 
 Seul to the head of that lake, and thence by a straight 
 line to the nearest point of the middle line of the waters 
 of Lake St. Joseph, and thence along that middle lino 
 until it reaches the foot or outlet of that lake, and thence 
 along the middle line of the river by which the waters 
 of Lake St. Joseph discharge themselves, until it reaches 
 a line drawn due north from the confluence of the 
 Rivers Mississippi and Ohio, which forms the boundary 
 eastward of the province of Manitoba." Their lordships 
 do not express an opinion " as to the sufficiency or 
 otherwise of concurrent legislation of the provinces of 
 Ontario and Manitoba, and of the dominion of Canada, 
 but at the same time think it " desirable and most ex- 
 pedient that an imperial act of parliament should be 
 passed to make this decision binding and effectual."^ 
 From the foregoing decision it will be seen that it only 
 affects the question between Ontario and Manitoba, and 
 leaves the rest of the boundary to be still finally deter- 
 mined. The Ontario government has taken all the 
 measures necessary to establish their jurisdiction in the 
 territory given to them by the decision in question. 
 The whole matter, however, rests in statu quo so far as 
 the Dominion government is concerned. As we have 
 already seen, the question they subsequently raised with 
 respect to the title to the Indian lands in the disj)uted 
 territory, has been decided by the Canadian courts in 
 favour of Ontario.^ 
 
 1 L. N. 1884, pp. 281-282. See remarks of Mr. Blake, Can. 
 Hans. 1885, pp. 17, 18 ; and of Sir J. A. Macdonald, ibid, p. 23. 
 Also, April 13, 1888. 
 
 ^ See supmj pp. 151-155. 
 
CHAPTER XIV. 
 
 RULES OP CONSTRUCTION AND CONSTITUTIONAL PRINCIPLES 
 DEDUCED FROM JUDICIAL DECISIONS. 
 
 The most important questions which have come before 
 the privy council and the supreme court of Canada, 
 have arisen upon the provisions of the British North 
 America Act, relating to the distribution of legislative 
 powers between the parliament of Canada and the legis- 
 latures of the provinces, and in the words of the privy 
 council, *' owing to the very general language in which 
 some of these powers are described, the question is one 
 of considerable difficulty." A learned judge of the supreme 
 court observes that ^' in construing the act, no hard 
 and fast canon or rule of construction can be laid down 
 and adopted, by whiuh all acts passed, as well by the 
 parliament of Canada as by the local legislatures, upon 
 all and every question that may arise, can be effectually 
 tested as to their being or not being intra vires of the 
 legislature passing them." The nearest approach to a 
 rule of general application that has been attempted in 
 the courts of Canada, with a view to reconcile the appar- 
 ently conflicting legislative powers under the act, is 
 
IGO CO^'STITUTIONAL HISTORY. 
 
 with respect to property rnd civil rights, over which 
 exclusive legislative authority is given to the local legis- 
 latures : that, as there are many matters involving pro- 
 perty and civil rights expressly reserved to the dominion 
 parliament, the power of the local legislatures must, to 
 a certain extent, be subject lo the general and special 
 legislative powers of the dominion. But while the legis- 
 lative rights of the local legislatures are, in this sense, 
 subordinate to the rights of the dominion parliament, 
 these latter rights must be exercised, so far as may be, 
 consistently with the rights of the local legislatures, and 
 therefore the dominion parliament would only have the 
 right to interfere with property and civil rights in so 
 far as such interference may be necessary for the pur- 
 pose of legislating generally and effectually in relation 
 to matters confided to the parliament of Canada.'* On 
 this same point the privy council appears to take := 
 similar view : It is therefore to be presumed, indeed, it if» 
 a necessary implication, that the imperial statute, iii 
 assigning to the dominion parliament the subjecis of 
 bankruptcy and insolvency, intended to confer on it 
 legislative power to interfere with property, civil rights, 
 and procedure, within the province, so far as a general 
 law relating to those subjects might affect them.'^ 
 
 The judicial committee of the privy council have 
 endeavoured to lay down certain principles which should 
 guide those who are called upon to interpret the Union 
 Act. The first step to be taken, with a view to test the 
 
 ^ Ritchie, C. J., in The Queen v- Robertson, Can. Sup. Court 
 K., vol. vi, pp. 110-11. Also Valin v. Langlois, vol. iii, p. 15 ; 
 The Citizens Insurance Co. t: Parsons, vol. iv, p. 242. 
 
 2 Sir M. E. Smith in Cashing v, Dupuy, 5 App. Ca. 415. 
 
RULES OF CONSTRUCTION. 161 
 
 validity of an act of a provincial legislature is to con- 
 sider whether the subject-matter falls within any of the 
 classes of subjects enumerated in section ninety-two, 
 which states the legislative powers of the provincial 
 legislatures. If it does not come within any of such 
 classes, the provincial act is of no validity. If it does, 
 these further questions may arise, viz., whether the 
 subject of the act does not also fall within one of the 
 enumerated classes of subjects in section ninety-one, 
 which states the legislative powers of the dominion par- 
 liament, and whether the power of the provincial legis- 
 lature is, or is not, thereby overborne.^ 
 
 The same eminent authority has in another judgment - 
 expressed the following opinion : 
 
 ''That it must have been foreseen that some of the 
 classes of subjects assigned to the provincial legislatures 
 unavoidably ran into, and were embraced by, some of 
 the enumerated classes of subjects in section ninety-one; 
 
 ^ Dobie V. The Temporalities Board of the Presbyterian Church 
 in Canada, 7 App. Cas., 136 ; Cartwright, 367. In Steadman v, 
 Robertson (2 Pug. and Bur., 580) one of the judges of the supreme 
 court of New Brunswick expressed the opinion : " The B. N. A. 
 Act is distributive merely in respect to powers of legislation, 
 exercisable by the dominion parliament and by the local legis- 
 latures respectively, and the dominion parliament may not 
 intrench upon property and civil rights which are under the 
 guardianship and subject to the power of the local legislatures, 
 except to the extent that may be required to enable parliament 
 to 'work out' the legislation upon the particular subjects 
 specially delegated to it" 
 
 ^ The Citizens & Queen Insurance Ca, v. Parsons, Rep. 45, L, 
 T. N. S. 721 ; Cartwright, 272, 273. 
 11 
 
162 CONSTITUTIONAL HISTORY. 
 
 hence an endeavour appears to ha e been made to pro- 
 vide for cases of apparent conflict ; and it would seem 
 that with this object it was declared in the second branch 
 of the ninety-first section, ' for greater certainty, but not 
 so as to restrict the generality of the foregoing terms of 
 this section,' that (notwithstanding anything in the act) 
 the exclusive authority of the parliament of Canada 
 should extend to all matters coming within the classes 
 of subjects enumerated in that section. Notwithstanding 
 this endeavour to give preeminence to the dominion 
 parliament in cases of a conflict of powers, it is obvious 
 that in some cases where this apparent conflict exists, 
 the legislature could not have intended that the powers 
 exclusively assigned to the provincial legislature should 
 be absorbed in those given to the dominion parliament. 
 Take as one instance the subject ' marriage and divorce,* 
 contained in the enumeration of subjects in section ninety- 
 one. It is evident that solemnization of marriage would 
 come within this general description ; yet * solemnization 
 of marriage in the province ' is enumerated among the 
 classes of subjects in section ninety-two, and no one can 
 doubt, notwithstanding the general language of section 
 ninety-one, that this subject is still within the exclusive 
 authority of the legislatures of the provinces. So ' the 
 raising of money by any mode or system of taxation ' is 
 enumerated among the classes of subjects in section 
 ninety-one; but though the description is sufficiently 
 large and general to include * direct taxation within the 
 province, in order to the raising of a revenue for pro- 
 vincial purposes,' assigned to the provincial legislatures 
 by section ninety-two, it obviously could not have been 
 intended that, in this instance also, the general power 
 
RULES OF CONSTRUCTION. 163 
 
 should override the particular one. "With regard to 
 certain classes of subjects, therefore, generally described 
 in section ninety-one, legislative power may reside as to 
 some matters, falling within the general description of 
 these subjects, in the legislatures of the provinces. In 
 these cases, it is the duty of the courts, however difficult 
 it may be, to ascertain in what degree, and to what 
 extent, authority to deal with matters falling within 
 these classes of subjects exists in each legislature, and to 
 define, in the particular case before them, the limits of 
 their respective powers. It could not have been the 
 intention that a conflict should exist, and, in order to 
 prevent such a result, the language of the two sections 
 must be read together, and that of one interpreted and, 
 where necessary, modified by that of the other. In this 
 "vay it may, in most cases, be found possible to arrive 
 at a reasonable and practical construction of the lan- 
 guage of the sections, so as to reconcile the respective 
 powers they contain, and give effect to all of them. In 
 performing this difficult duty, it will be a wise course 
 for those on whom it is thrown to decide each case which 
 arises as best they can, without entering more largely 
 upon an interpretation of the statute than is necessary 
 for the decision of the particular question in hand." 
 
 In giving a digest of the most important judicial deci- 
 sions on questions of legislative jurisdiction, the writei* 
 has not so far attempted any comment upon the many 
 points that naturally suggest remarks, but has thought 
 it the wisest course in a work of this character to allow 
 the reader to study out each subject for himself and form 
 his own conclusions in matters of doubt. In reviewing 
 these decisions, however, certain constitutional prin- 
 
164 CONSTITUTIONAL HISTORY. 
 
 ciples may be evolved for the guidance of those engaged 
 in the working out of the federal system of the dominion, 
 and to some of these the writer may not inappropriately 
 refer. 
 
 The dominion parliament and provincial legislatures 
 are sovereign bodies within their respective constitutional 
 limits. While the dominion parliament has entrusted to 
 it a jurisdiction over matters of national import, and 
 possesses besides a general power to legislate on mat- 
 ters not specifically reserved to the local legislatures, the 
 latter, nevertheless, have had conferred upon them 
 powers as plenary and ample within the limits prescribed 
 by the constitutional law, as are possessed by the general 
 parliament.^ 
 
 In interpreting the constitution, prescribing the limits 
 of the respective legislative authorities in the dominion, 
 every care should be taken to consider each case as it 
 arises, and to determine the true nature and character 
 of the legislation in the particular instance under discus- 
 3ion in order to ascertain the cla. of subjects to which 
 it really belongs.- 
 
 In all cases, each legislative body should act within 
 the sphere of its clearly defined powers ; and the domi- 
 nion Parliament should no more extend the limits of its 
 jurisdiction by the generality of the application of its 
 law, than a local legislature should extend its jurisdiction 
 by localising the application of its own statute.^ 
 
 ^ Supra, p. 145. 
 
 2 lb., pp. 161-163. 
 
 ' Legal News on Hodge v. the Queen, Jan. 2C, 1884. " The 
 federal parliament cannot extend its own jurisdiction by a ter- 
 litcrial extension of its lawn, and legislate on subjects constitu- 
 
RULES OF CONSTRUCTION. 165 
 
 The parliament of Canada has a right to interfere with 
 matters of property, civil rights and procedure in a pro- 
 vince, when it is necessary for the purpose of legislating 
 generally and effectually in relation to matters which 
 fall properly within the jurisdiction of the general legis- 
 lature,^ 
 
 The federal parliament must have " a free and unfet- 
 tered exercise of its powers " with respect to matters 
 placed under its control, even though such exercise may 
 interfere with some of the powers left under provincial 
 control.^ The exercise of the powers of the local legisla- 
 tures, in those cases, must necessarily be subject to such 
 reg "ilationa as the dominion may lawfully prescribe.^ 
 
 Bui it is reasonable to assume that the right of the 
 federal parliament to legislate in this particular is limited 
 to such legislation as is absolutely necessary to give full 
 effect to its lawful powers. It cannot be argued from the 
 most strained interpretation of the constitution that the 
 federal legislatui'e should, in the exercise, for instance, of 
 its general power to regulate trade and commerce, or to 
 provide for the peace, order, or good government of 
 Canada, obliterate the jurisdiction of the local legisla- 
 
 tionally provincial, by enacting them for the whole dominion, 
 as a provincial legislature cannot extend its jurisdiction over 
 matters constitutionally federal, by a territorial limitat ion of its 
 laws, and legislate on matters left to the federal power, by enact- 
 ing them for the province only, as, for instance, incorporate a 
 bank for the province," Taschereau J., Can. Sup. Court R., 
 iv, 310. 
 
 ' *SMpra,pp. 126,137,160. 
 
 ' Can. Sup. Court R., iv, 308, Taschereau J. 
 
 8 lb. 242, Ritchie C. J. 
 
166 CONSTITUTIONAL HISTORY. 
 
 tures over matters of a purely provincial or municipal 
 character, or assume full control over civil rights and 
 property.^ 
 
 Parliament may, for instance, give powers to a rail- 
 way company to expropriate and hold lands, as a neces- 
 sary incident to its right to create such companies ; ^ but 
 it cannot lawfully prescribe the terms and conditions on 
 which the conveyance of real estate is to be made to a 
 corporate body, but should leave all laws in each pro- 
 vince to operate as to such conveyance.^ Nor does its 
 
 authority to legislate for the regulation of trade and 
 commerco comprehend the power to regulate by legisla- 
 tion thb contracts of a particular business or trade, as 
 such contracts are matters of civil rights which fall 
 within the jurisdiction of the provincial legislatures.* 
 
 Parliament itself has, on more than one occasion, recog- 
 nized the necessity of giving full scope to the powers of 
 the provincial legislatures. For instance, it has refused 
 to embody in an act such clauses as would practically 
 nullify the provisions of a local statute, wholly within 
 the jurisdiction of the local sovereignty, which had, in 
 the first instance, created the corporation.^ 
 
 On the other hand, the local legislatures, whose powers 
 are limited compared with those of the general parlia- 
 ment, must be careful to confine the exercise of these 
 to the particular subjects expressly placed under their 
 jurisdiction, and not to encroach upon subjects which, 
 
 * Can. Sup. Court, iv, 272, Fournier J. 
 •' Can. Hans. [1882], 434 (Mr. Blake). 
 ^ Bourinot's Procedure, 598. 
 
 * Supra, p. 155. 
 
 ^ Bourinot's Procedure, 602-604. 
 
EULES OF CONSTRUCTION. 167 
 
 being of national importance, are, for that very reason, 
 placed under the exclusive control of parliament.^ 
 
 No conflict of jurisdiction need arise because subjects 
 which, in one aspect and for one purpose, fall within the 
 powers of the dominion legislature, may, in another 
 aspect and for another purpose, fall within the powers 
 of the local legislatures.^ The general authority, for 
 instance, possessed by the dominion to make laws relat- 
 ing to public order and safety, or regulating trade and 
 commerce, does not prevent the local legislatures from 
 exercising its municipal powers with respect to the same 
 subjects. 
 
 Laws designed for the promotion of public order, safety, 
 or morals, belong to the subject of public wrongs rather 
 than to that of civil rights. The primary matter dealt 
 with by such legislation is the public order and safety — 
 a matter clearly failing within the general authority of 
 parliament to make laws for the order and good govern- 
 ment of Canada.'^ Consequently a uniform law passed 
 by the general legislature to promote temperance in the 
 dominion, does not conflict with the power possessed by 
 a local legislatui^e to pass an act authorizing the making 
 of such police or municipal regulations of a merely local 
 character as are necessary for the good government of 
 taverns and other places licensed to sell liquor by retail.^ 
 
 Where a power is specially granted to one legislatui^e, 
 that power will not be nullified by the fact that, indi- 
 
 ^ Can. Sup. Court R, iv, 348, Gwynne J. 
 
 ^ Supra, p. 143. 
 
 « lb. p. 137. 
 
 * lb. pp. 142, 144. 
 
168 CONSTITUTIONAL HISTORY. 
 
 rectly, it affects a special power granted to the other 
 legislature. ** This is incontestable,'* says a learned judge, 
 "as to the power granted to parliament (section 91, last 
 paragraph),^ and probably is equally so as to the power 
 granted to the local legislature. In other words, it is only 
 in the case of absolute incompatibility that the special 
 power granted to the local legislature gives way."^ Such 
 a principle seems absolutely necessary to the efficient 
 operation of the federal constitution. 
 
 In the inception of the confederation it was believed 
 by its authors that the care taken to define the respec- 
 tive powers of the several legislative bodies in the domi- 
 nion would prevent any troublesome or dangerous con- 
 flict of authority arising between the central and local 
 governments.^ The experience of the past twenty years 
 has proved that it is inevitable in the case of every 
 wi'itten constitution, especially in the operation of a 
 federal system, that there should arise, sooner or later, 
 perplexing questions of doubt as to where power exists 
 with respect to certain matters of legislation. It has been 
 sometimes urged in parliament * that committees should 
 be organised in both houses to lay down rules or prin- 
 
 ^ " And any matter coming within any of the classes of sub- 
 jects enumerated in this section shall not be deemed to come 
 within the class of matters of a local or private nature comprised 
 in the enumeration of the classes of subjects by this Act assigned 
 exclusively to the legislatures of the provinces." 
 
 ^ Meredith, C, J., cited by Ramsay J., 5 Leg. News, 333. 
 
 * See remarks of Sir John Macdonald in 1865, Conf. Deb. p. 32. 
 
 * The Senate rules provide for the reference of bills on which 
 the question of jurisdiction has been raised, to the committee of 
 standing orders and private bills- Bourinot's Parliamentary 
 Practice and Procedure, 605-607. 
 
RULES OF CONSTRUCTION. 169 
 
 ciples for legislation, in order to prevent, as far as pos- 
 sible, any conflict of jurisdiction. But it is questionable 
 if political bodies can ever be the safest interpreters of 
 constitutional law. It is in the courts that the solution 
 must be sought for the difficulties that arise in the work- 
 ing of a federal constitution. As long as the courts of 
 Canada continue to be respected as impartial, judicious 
 interpreters of the law, and her statesmen are influenced 
 by a desire to accord to each legislative authority in the 
 dominion its legitimate share in legislation, dongerous 
 complications can hardly arise to prevent the harmo- 
 nious operation of a constitutional system, whose basis 
 rests on the principle of giving due strength to the central 
 government and at the same time every necessary free- 
 dom to the different provinces which compose the con- 
 federation. 
 
CHAPTEE XY. 
 
 Position of the Judiciary. 
 
 Before closing this review of the constitution of Canada, 
 it is necessary to refer brhfly to the position of the judi- 
 ciary which occupies a peculiarly important status in 
 a country possessing a written constitution which must 
 necessarily require to be interpreted from time to time 
 by accepted author ities\ 
 
 The administration of justice in the provinces, includ- 
 ing the constitution, maintenance, and organization 
 of provincial courts, both of civil and criminal jurisdic- 
 
 * The supreme court of the United States is considered in the 
 Federalist, and the history of the American constitution proves 
 the truth of the words, " a bulwark of a limited constitution 
 against legislative encroachments." The meaning of the word 
 "Kmited " is explained by Alexander Hamilton : " By a limited 
 constitution, I understand one which contains certain specified 
 exceptions to legislative authority, such, for instance, as that it 
 shall pass no bill of attainder, no ex post facto law, and the like 
 limitations of this kind can be preserved in practice in no other 
 way than through the medium of the courts of justice, whose 
 duty it must be to declare all acts contrary to the manifest tenor 
 of the constitution void; without ihis, all the reservations of 
 particular rights and privileges would amount to nothing." 
 Federalist, Ixxviii. 
 
POSITION OF THE JUDICIARY. 1»71 
 
 tion, and including procedure in civil matters in these 
 courts, formsaclassof subjects placed by the fundamental 
 law^ within the exclusive control of the provincial 
 legislatui'es. In the province of Quebec the French law 
 derived from the Coutume de Paris, has come down from 
 the days of the French regime, and prevails in all civil 
 matters and the civil laws of that territorial division, in- 
 cluding those of procedure, have been duly codified as 
 the '' Civil Code of Lower Canada." 2 
 
 In the other provinces, the sources of law are the com- 
 mon law of England, brought naturally into the country 
 by the English settlers, and the statutory laws passed 
 from time to time by the legislative authorities. The 
 criminal law is generally uniform throughout the do- 
 minion, and is under the jurisdiction of the parliament 
 of Canada, except so far as relates to the constitution of 
 the courts.^ The governor-general in council appoints 
 the judges of the superior, district and county courts in 
 each province, except those of the courts of probate in 
 Nova Scotia and New Brunswick.^ The judges in On- 
 tario, Quebec, Nova Scotia, New Brunswick and Prince 
 Edward Island continue to bo selected from the Bar of 
 
 1 B.N.A. Act, 1867, sub-s. 14, s. 92. 
 
 2 See 29 Vic, c. 41, "An Act respecting the Civil Code of 
 Lower Canada. (Third volume of Revised Statutes of Canada, 
 1887.) Also, Code de Procedure Civile, mis au courant de la 
 legislation, par M. Lorrain, 1886. 
 
 8 B.N.A. Act, 1867, sub-s. 27, s. 91. 
 
 * lb. 96, justices of the peace, police and stipendiary magis- 
 trates are appointed in each province by the lieutenant-governor 
 in counciL 
 
1'72 CONSTITUTIONAL HISTORY. 
 
 their respective provinces.^ 
 
 The independence of the judiciary has been for very 
 many years recognized in Canada, as one of the funda- 
 mental principles necessary to the conservation of public 
 liberty. The judges are not dependent on the mere will 
 of the executive in any essential respect, nor on the 
 caprice of the people of a province for their nomination 
 and retention in office, as in many of the states of the 
 American republic. Their tenure is as assured in Canada 
 as in England, and their salaries are not voted annually, 
 but are charged permanently on the civil list. In case 
 it is necessary to provide a salary, or increase of salary, 
 for a judge, the proper course is for the government to 
 proceed by bill.^ The judges of the superior courts hold 
 office during good behaviour, and can only be removed 
 by the governor-general on address of the Senate and 
 House of Commons.^ In impeaching a judge for mis- 
 
 ^t^ I , . — - I II ■ ■ I. Ill ■■ -^ I .. , — . . I...... I — I. . ■ IMI I 1.1 .1 II ^^.^^M ,1, ■■ .^l. — ^ 
 
 ^ " Until the laws relative to property and civil rights in On- 
 iario, Nova Scotia and New Brunswick, and the procedure of 
 the courts in those provinces are made uniform, the judges of 
 the courts of those provinces appointed by the governor-general 
 shall be selected from the respective Bars of those provinces." 
 
 lb. s. 97. " The judges of the courts of Quebec shall be selec- 
 ted from the Bar of that province." lb. s. 98. 
 
 2 See 31 Vict, c. 31. (Rev. Stat of Can., c. 138). B. N. A. Act, 
 1867, s. 100. 
 
 * B. N. A. Act, 1867, s. 99. This section does not apply to 
 county court judges, whose removal for sufficient cause is pro- 
 vided for by 45 Vict., c 12. It is, however, always competent 
 for the house to address the governor-general for the removal of 
 such judicial officers, and the procedure in parliament should 
 be as in the case of the superior court judges. ,See case of W, 
 McDermott, asst barrister of Kerry. 150 E. Hans. (3), 1587, 
 1588 ; 90 Lords J., 221, 237, 239, 244, 251, 261. Also Mr. Kenrick's 
 
POSITION OF THE JUDICIARY. 173 
 
 conduct in office, the House of Commons discharges one 
 of the most delicate functions entrusted to it by law. In 
 such a matter it cannot proceed with too great caution 
 and deliberation. Whenever charges of a serious char- 
 acter have been brought against a judge, and responsible 
 persons have declared themselves prepared to support 
 such charges, it has been the practice to appoint a select 
 committee, to whom all the papers can be referred for a 
 thorough investigation. Since 1867 only two committees 
 of this character have been formally appointed, but in 
 neither case did the inquiry resul*-. in the removal of the 
 judge whose character was impugned.* It is usual to 
 have all the documents in the case printed in the first 
 instance without delay, so that the House and the per- 
 sons immediately interested may have duo cognizance 
 of the nature of the charges against the judge.^ Witnes- 
 ses should bo examined on oath in all such cases.^ All 
 the weight of authority in Canada, as in England, goes 
 to show that the House should only entertain charges 
 which, if proved, would justify the removal of the judge 
 from the bench. It will be for the House, and especially 
 
 case, 13 Pari. Deb., N. S., 1138, 1425, 1433 ; 14 J5., 500, 502, 511, 
 670-678. Also remarks of Sir J. A. Macdonald and Mr. Blake, 
 April 9, 1883, in the Bothwell case, Can- Hans. 
 
 1 Case of Judge Lafontaine, Can. Com. J. (1867-8), 297, 344, 
 398; i5. (1869), 135, 247. Of Judge Loranger, lb. (1877), 20, 25, 
 36, 132, 141, 258. A committee was asked for in 1882 in the case 
 of Chief Justice Wood, of Manitoba, but never appointed. 
 
 2 Can. Com. J. (1867-8), 400; 76. (1877), 25, 132; lb. (1882), 192. 
 Todd, Pari. Govt in England, II. 743. 
 
 * Can. Com. J. (1877), 86- At the time of the previous case, 
 select committees had no power to administer oaths to witnes- 
 ses- See Bourinot's Procedure, chap, on select committees. 
 
174 CONSTITUTIONAL HISTORY 
 
 for those responsible for the administration of justice, to 
 consider whether the allegations are of such a nature, 
 and supported hy such authority, as demand an investi- 
 gation at their hands.* The proper and most convenient 
 course is for the persons who feel called upon to attack 
 the character of a judge to proceed by petition in which 
 all the allegations are specifically stated so that the 
 judge may have full opportunity of answering the indict- 
 ment thus presented against him.' But the action of 
 Parliament may originate in other ways, if the public 
 interests demand it, and there is no objection to a mem- 
 ber's formulating charges on his own responsibility as a 
 member of the legislature having a grave duty to dis- 
 charge.^ The constitutional usage of the parent state 
 also requires that in any address asking for the removal 
 of a judge *' the acts of misconduct which have occasioned 
 the adoption thereof ought to be recapitulated, in order 
 to enable the sovereign to exercise a constitutional dis- 
 cretion in acting upon the advice of parliament. ''In 
 cases where this very proper rule has not been followed, 
 the Crown has refused to give effect to the address," 
 though passed by a colony enjoying responsible govern- 
 
 * See memorable cases of Baron Abinger and Sir Fitzroy Kelly, 
 cited by Todd, II., pp. 739, 740. In 1883 the Canadian house 
 refused a motion to inquire into the conduct of a judge in the 
 discharge of his duties in connection with a matter suhjiidice. 
 See remarks of Sir J. A. Macdonald in Bot -ell election case, 
 April 9, Can. Hans. 
 
 » Sir J. A. Macdonald, April 9, 1883, Can. H i. ., Both well 
 case. Cases o' Judge I ox and Judge Kenrick, cited in Todd, 
 II., 731, 734. 
 
 » Case of Baron McLeland, 74 E. Com. J., 493 ; 11 Pari Deb., 
 850-854. 
 
POSITION OF THE JUDICIAEY 175 
 
 ment, because "in dismissing a judge, in compliance 
 with addresses from a local legislature and in conformity 
 with law, the Queen is not performing a mere ministerial 
 act, but adopting a grave responsibility, which her 
 Majesty cannot be advised to incur without satisfactory 
 evidence that the dismissal is proper." ^ 
 
 We have now briefly reviewed the most important 
 phases in the development of the constitutioral system 
 of the dominion of Canada. We have seen how the 
 autocratic, illiberal government of New France, so 
 repressive of all individual energy and ambition, gave 
 place, after the conquest, to representative institutions 
 well calculated to stimulate human endeavour and devel- 
 op national character. Step by step we have followed 
 the progress of those free institutions which are now 
 in thorough unison with the expansion of the provinces 
 in wealth and population. At last we see all the pro- 
 vinces politically united in a confederation, on the 
 whole carefully conceived and matm^ed; enjoying res- 
 ponsible government in the completest sense, and carry- 
 ing out at the same time, as far as possible, those British 
 constitutional principles which give the best guarantee 
 for the liberties of a people. With a federal system 
 which combines at once central strength and local free- 
 dom of action ; with a permanent executive independent 
 of popular caprice and passion; with a judiciary on 
 whose integrity there is no blemish, and in whose learn- 
 ing there is every confidence ; with a civil service resting 
 
 ^ Todd II., 744, 763, Corresp. relative to Judge Boothby , 
 Eng. Com. P., 1G62, vol. xxxvii, pp. 180-184. 
 
176 CONSTITUTIONAL HISTORY. 
 
 on the firm basis of freedom from politics and of security 
 of tenure ; with a people who respect the law and fully 
 undei stand the workings of parliamentary institutions, 
 the dominion of Canada need not fear comparison with 
 any other country in those things which make a com- 
 munity truly happy and prosperous.^ 
 
 ^ The words of the Marquis of Lome, in reply to the farewell 
 address of the parliament of Canada, 25th May, 1883, may be 
 appropriately cited here as the impartial testimony of a governor- 
 general after some years experience of the working of Canadian 
 institutions : — 
 
 "A judicature above suspicion; self-governing communities 
 entrusting to a strong central government all national interests ; 
 the toleration of all faiths, with favour to none; a franchise 
 recognizing the rights of labour, by the exclusion only of the 
 idler ; the maintenance of a government not privileged to exist 
 for any fixed term, but ever susceptible to the change of public 
 opinion, and ever open, through a responsible ministry, to the 
 scrutiny of the people ; — these are the features of your rising 
 power." 
 
APPENDIX 
 
 A. British North America Act, 1867 , 179^ 
 
 Be An Act respecting the estabhshment of Provinces in the 
 Dominion of Canada (34-35 Vict., c. 28) 228, 
 
 C. An Act to remove certain doubts with respect to the 
 powers of the Parliament of Canada under sectoin 18 
 of the B.N. A. Act, 1867 (38-39 Vict., c. 38) 23t 
 
 •- 
 
 12 
 
APPENDIX A. 
 THE BRITISH NORTH AMERICA ACT, 1867. 
 
 ANNO TEICESIMO ET TRICESIMO-PRIMO VICTORLE EEGIN.E, 
 
 CAP. III. 
 
 An Act for the Union of Canada, Nova Scotia and New 
 Brunswickf and the Government thereof and for Pur- 
 poses connected therewith, 
 
 [29th March, 1867.] 
 
 WHEREAS the Provinces of Canada, Nova Scotia and 
 New Brunswick have expressed their Desire to be 
 federally united into One Dominion under the Crown of 
 the United Kingdom of Great Britain and Ireland, with 
 a Constitution similar in Principle to that of the United 
 Kingdom : 
 
 And whereas such a Union would conduce to the Wel- 
 fare of the Provinces and promote the Interests of the 
 British Empire : 
 
 And whereas on the EstabHshment of the Union by 
 Authority of Parliament, it is expedient, not only that 
 the Constitution of the Legislative Authority in the Do- 
 minion be provided for, but also that the Nature of the 
 Executive Government therein be declared : 
 
 And whereas it is expedient that Provision be made 
 for the eventual Admission into the Union of other Parts 
 of British North America : 
 
180 APPENDIX A. 
 
 Be it therefore enacted and declared by the Queen'a 
 Most Excellent Majesty, by and with the Advice and 
 Consent of the Lords Spiritual and Temporal, and Com- 
 mons, in this present Parliament assembled, and by the 
 Authority of the same, as follows : 
 
 I. — PRELIMINARY. 
 
 ehoTt Title. 1, This Act may be cited as the British North America 
 Act, 1867. 
 
 Applica- 2. The Provisions of this Act referring to Her Majesty 
 ▼Mions re- the Queen extend also to the Heirs and Successors of 
 SeQueen. ^^^ Majesty, Kings and Queens of the United Kingdom 
 of Great Britain and Ireland. 
 
 II. — UNION. 
 
 Declara 3. It shall be lawful for the Queen, by and with the 
 
 UbIo^ Advice of Her Majesty's Most Honourable Privy Council, 
 to declare by Proclamation that, on and after a Day 
 therein appointed, not being more than Six Months after 
 the passing of this Act, the Provinces of Canada, Nova 
 Scotia and New Brunswick shall form and be One Domi- 
 nion under the name of Canada; and on and after that 
 Day those Three Provinces shall form and be One Domi- 
 nion under that Name accordingly. 
 
 Cbnstrao- 4. The subsequent Provisions of this Act shall, unless 
 ^raen/^^" it is otherwise expressed or implied, commence and have 
 ftovisions effect on and after the Union; that is to say, on and after 
 * the Day appointed for the Union taking effect in the 
 Queen's Proclamation ; and in the same Provisions, un- 
 less it is otherwise expressed or implied, the Name Can- 
 ada shall bo taken to mean Canada as constituted under 
 this Act. 
 
 FonrPro- 5. Canada shall be divided into Four, Provinces, named 
 Tinccs. Ontario, Quebec, Nova Scotia, and New Brunswick. 
 
BRITISH NORTH AMERICA ACT. 181 
 
 6. The Parts of the Province of Canada (as it exists at Provincea 
 the passing of this A'^t) which formerly constituted re- andQuJEws. 
 spectively the Provinces of Upper Canada and Lower 
 Canada, shall be deemed to be severed, and shall form 
 
 Two Separate Provinces. The Part which formerly con- 
 stituted the Province of Upper Canada shall constitute 
 the Province of Ontario; and the Part which formerly 
 constituted the Province of Lower Canada shall consti- 
 tute the Province of Quebec. 
 
 7. The Provinces of Nova Scotia and New Brunswick Provinces 
 shall have the same Limits as at the passing of this Act. tiaVndNew 
 
 Brunswick. 
 
 8. In the general Census of the Population of Canada Decennial 
 which is hereby required to be taken in the Year One Census, 
 thousand eight hundred and seventy-one, and in every 
 Tenth Year thereafter, the respective Populations of the 
 
 Four Provinces shall be distinguished. 
 
 in. — EXECUTIVE POWER. 
 
 9. The Executive Government and Authority of and Dffclara- 
 over Canada is hereby declared to continue and be vested Executive 
 in the Queen. JhTQU°en. 
 
 10. The Provisions of this Act referring to the Governor- Applica- 
 General extend and apply to the Governor-General for provisions 
 the Time being of Canada, or other the Chief Executive [o^tlfe''"* 
 Officer or Administrator for the Time being carrying on Governor- 
 the Governmeuc of Canada on behalf and in the Name of 
 
 the Queen, by whatever title he is designated. 
 
 11. There shall be a Council to aid and advise in the Constitu- 
 
 tion of 
 
 Government of Canada, to be stvled the Queen's Privy Privy 
 Council for Canada ; and the Persons who are to be Mem- Canada, 
 bers of that Council shall be from Time to Time chosen 
 and summoned by the Governor-General and sworn in 
 as Privy Councillors, and Members thereof may be from 
 Time to Time removed by the Governor-General. 
 
182 
 
 APPENDIX A. 
 
 All Powers 
 cinder Acts 
 to be exer- 
 cised by 
 (lovernor 
 General 
 with advice 
 of Privy 
 Council, 
 or alone. 
 
 12. All Powers, Authorities, and Functions which under 
 any Act of the Parliament of Great Britain, or of the 
 Parliament of the United Kingdom of Great Britain and 
 Ireland, or of the Legislature of Upper Canada, Lower 
 Canada, Canada, Nova Scotia or New Brunswick, are at 
 the Union vested in or exercisable by the respective Go- 
 vernors or Lieutenant-Governors of those Provinces, with 
 the Advice, or with the Advice and Consent, of the res- 
 pective Executive Councils thereof, or in conjunction with 
 those Councils, or with any number of Members thereof, 
 or by those Governors or Lieutenant-Governors indivi- 
 dually, shall, as far as the same continue in existence 
 and capable of being exercised after the Union, in relation 
 to the Government of Canada, be vested in and exercis- 
 able by the Governor-General, with the Advice or with 
 the Advice and Consent of or in conjunction with the 
 Queen's Privy Council for Canada, or any Members 
 thereof, or by the Governor-General individually, as the 
 Case requires, subject nevertheless (except with respect to 
 such as exist under Acts of the Parliament of Great 
 Britain or of the Parliament of the United Kingdom of 
 Great Britain and Ireland) to be abolished or altered by 
 the Parliament of Canada. 
 
 Applica- 13. The Provisions of this Act, referring to the Gover- 
 Provisions nor-General in Council shall be construed as referring to 
 to Governor the Governor-General acting by and with the Advice of 
 Generni in the Queen's Privy Council for Canada. 
 
 Power 
 to Her 
 Majestjr to 
 authorize 
 Governor 
 General to 
 appoint 
 Deputies. 
 
 14. It shall be lawful for the Queen, if Her Majesty 
 thinks fit, to authorize the Governor-General from Time 
 to Time to appoint any Person or any Persons jointly or 
 severally to be his Deputy or Deputies within any Part 
 or Parts of Canad a, and in that Capacity to exercise 
 during the Pleasure of the Governor- General such of the 
 Powders, Authorities and Functions of the Governor-Gen- 
 eral as the Governor-General deems it necessary or expe- 
 dient to assign to him or them, subject to any Limitations 
 
BRITISH NORTH AMERICA ACT. 183 
 
 or Directions expressed or given by the Queen ; but the 
 Appointment of such a Deputy or Deputies, shall not 
 affect the Exercise by the Governor-General himself of 
 any Power, Authority, or Function. 
 
 15. The Command-in-Chief of the Land and Naval Commanfi 
 Militia, and of all Naval and Military Forces, of and in Forcc?to 
 Canada, is hereby declared to continue and be vested in be^vestedin 
 the Queen. the Queen. 
 
 16. Until the Queen otherwise directs, the Seat of Seat of 
 Government of Canada shall be Ottawa. ment of 
 
 Canada. 
 rV. — LEGISLATR^E POWER. 
 
 17. There shall be One Parliament for Canada, consist- Constitu- 
 ing of the Queen, an Upper House styled the Senate, and Parliament 
 the House of Commons. ^^ Canada. 
 
 18. The Privileges, Immunities, and Powers to be held. Privileges, 
 
 &C. 01 
 
 enjoyed and exercised by the Senate and by the House Houses, 
 of Commons, and by the Members thereof respectively, 
 shall be such as are from Time to Time defined by Act 
 of the Parliament of Canada, but so that the same shall 
 never exceed those at the passing of this Act held, enjoyed, 
 and exercised by the Commons House of Parliament of 
 the United Kingdom of Great Britain and Ireland, and 
 by the Members thereof. 
 
 19. The Parliament of Canada shall be called together sSrTof the 
 not later than Six months after the Union. ofcaS^d^a.^ 
 
 20. There shall be a Session of the Parliament of Canada Yearly Ses- 
 . ■, A ' -x-r ,1 rr^ 1 1 , -, sion 01 tno 
 
 once at least in every Year, so that Twelve months shall Parliament 
 
 not intervene between the last sitting of the Parliament C^°*<**' 
 in one Session and its first Sitting in the next Session. 
 
 TJie Senate, 
 
 21. The Senate shall, subject to the Provisions of this Number of 
 Act, consist of Seventy-two Members, who shall be styled 
 Senators. 
 
184 
 
 APPENDIX A. 
 
 Represent- 
 ntion of 
 Provinces 
 in Senate. 
 
 Qualifica- 
 tions of 
 Senator. 
 
 z2. In relation to the Constitution of the Senate, Canada 
 shall be deemed to consist of Three Divisions : — 
 
 (1.) Ontario; 
 
 (2.) Quebec; 
 
 (3.) The Maritime Provinces, Nova Scotia and New 
 Brunswick ; which Three Divisions shall (subject to the 
 Provisions of this Act) be equally represented in the Sen- 
 ate as follows : Ontario by Twenty-four Senators ; Quebec 
 by Twenty-four Senators ; and the Maritime Provinces by 
 Twenty-four Senators, Twelve thereof representing Nova 
 Scotia and Twelve thereof representing New Brunswick. 
 
 In the case of Quebec, each of the Twenty-four Senators 
 representing that Province shall be appointed for one of 
 the Twenty-four Electoral Divisions of Lower Canada spe- 
 cified in Schedule A, to Chapter One of Consolidated 
 Statutes of Canada. 
 
 23. The Qualifications of a Senator shall be as follows : — 
 
 (1.) He shall be of the full Age of Thirty years. 
 
 (2.) He shall be either a Natural-born Subject of the 
 Queen, or a Subject of the Queen naturalized by 
 an Act of the Parliament of Great Britain, or of the 
 Parliament of the United Kingdom of Great Britain 
 and Ireland, or of the Legislature of One of the Pro- 
 vinces of' Upper Canada, Lower Canada, Canada, 
 Nova Scotia, or New Brunswick, before the Union, 
 or of the Parliament of Canada after the Union. 
 
 (3.) He shall be legally or equitably seized as of Free- 
 hold for his own Use and Benefit of Lands or 
 Tenements held in free and Common Soccage, or 
 seized or possessed for his own Use and Benefit of 
 Lands or Tenements held in Franc-alleu or in Ro- 
 ture, within the Province for which he is appointed, 
 of the value of Four Thousand Dollars, over and 
 above all Rents, Dues, Debts, Charges, Mortgages 
 and Incumbrances due or payable oubof, or charged 
 on or afiecting the same ; 
 
BRITISH NORTH AMERICA ACT. 185 
 
 (4.) jIIh L^al and Personal Property shall be together 
 wort 1 1 four Thousand Dollars over and above his 
 Debts and Liabilities ; 
 
 (5) He shall be resident in the Province for which he 
 is appointed ; 
 
 (6.) In the Case of Quebec, he ihall have his Real Pro- 
 perty qualification in the Electoral Division for 
 which he is appointed, or shall be resident in that 
 Division. 
 
 24 . The Governor-General shall from Time to Time, in Summons 
 the Queen's Name, by Instrument under tlie Great Seal 
 
 of Canada, summon qualified persons to the Senate ; and, 
 subject to the Provisions of this Act, every person so sum- 
 moned shall become and be a Member of the Senate and 
 a Senator. 
 
 25. Such persons shall be first summoned to the Senate Summoni 
 as the Queen by Warrant under Her Majesty's Royal Body of 
 Sign Manual thinks fit to approve, and their Names shall Senators. 
 be inserted in the Queen's Proclamation of Union. 
 
 26. If at any Time, on the Recommendation of the Addition 
 Governor-General, the Queen thinks fit to direct that in certain 
 Three or Six Members be added to the Senate, the Gover- ^^^^ 
 nor-General may, by Summons to Three or Six Qualified 
 Persons (as the case may be), representing equally the 
 Three Divisions of Canada, add to the Senate accordingly. 
 
 27. In case of such Addition being at any Time made, Redactioa 
 the Governor-General shall not summon any Person toto^ra!al 
 the Senate, except on a further like Direction by the^^"^l>«'' 
 Queen on the like Recommendation, until each of the 
 
 Three Divisions of Canada is represented by Twenty-four 
 Senators, and no more. 
 
 28. The Number of Senators shall not at any time ex- Maximum 
 ceed Seventy-eight. SeSSSk*"' 
 
 29» A Senator shall, subject to the Provisions of this Tenure of 
 Act, hold his place in Uie Senate for life. fiS&tl 
 
186 
 
 APPENDIX A. 
 
 Resigna- 
 tion of 
 place in 
 Senate. 
 
 Disqualifi- 
 cation of 
 Senators. 
 
 30. A Senator may, by writing under his hand, ad- 
 dressed to the Governor-General, resign his place in the 
 Senate, and thereupon the same shall be vacant. 
 
 31. The Place of a Senator shall become vacant in any 
 of the following cases : — 
 
 (1.) If for Two Consecutive Sessions of the Parliament 
 he fails to give his Attendance in the Senate ; 
 
 (2.) If he takes an Oath or makes a Declaration or Ac- 
 knowledgment of Allegiance, Obedience or Adhe- 
 rence to a Foreign Power, or does an Act whereby 
 he becomes a Subject or Citizen, or entitled to the 
 Eights or Privileges of a Subject or Citizen of a 
 Foreign Power ; 
 
 (3.) If he is adjudged Bankrupt or Insolvent, or applies 
 for the benefit of any Law relating to Insolvent 
 debtors, or becomes a public defaulter ; 
 
 (4.) If he is attainted of Treason, or convicted of Felony 
 or of any infamous Crime ; 
 
 (5.) If he ceases to be qualified in respect of Property or 
 of Riesidence ; provided that a Senator shall not be 
 deemed to have ceased to be qualified in respect of 
 Residence by reason only of his residing at the 
 Seat of Government of Canada while holding an 
 Office under that Government requiring his Pre- 
 sence there. 
 
 Summons 32. When a Vacancy happens in the Senate, by Resig- 
 ?n SeSe?^ nation, Death or otherwise, the Governor-General shall, 
 by Summons to a fit and qualified Person, fill the Va- 
 cancy. 
 
 33. If any Question arises respecting the Qualification 
 of a Senator or a Vacancy in the Senate, the same shall be 
 heard and determined by the Senate. 
 
 34. The Governor-General may from Time to Time, by 
 Instrument under the Great Seal of Canada, appoint a 
 Senator to be Speaker of the Senate, and inay remove him 
 and appoint another in his stead. 
 
 Questions 
 as to quali- 
 fications 
 and vacan- 
 cies in 
 Senate. 
 
 Appoint- 
 ment of 
 Speaker of 
 Senate. 
 
BRITISH NORTH AMERICA ACT. 18T 
 
 35. Until the Parliament of Canada otherwise provides, Quorum of 
 the Presence of at least Fifteen Senators, inclading the ®^* ®* 
 Speaker, shall be necessary to constitute a Meeting of the 
 Senate for the exercise of its Powers. 
 
 36. Questions arising in the Senate shall be decided by Voting in 
 a majority of Voices, and the Speaker shall in all Cases 
 
 have a Vote, and when the voices are equal the Decision 
 shall be deemed to be in the Negative. 
 
 The House of Commons, 
 
 37. The House of Commons shall, subject to the Provi- Constitu- 
 sions of this Act, consist of One hundred and eighty-one j^^^^g^Qf 
 Members, of whom Eighty-two shall be elected for On- Commons 
 tario. Sixty-five for Quebec, Nineteen for Nova Scotia, and 
 Fifteen for New Brunswick. 
 
 38. The Governor-General shall from Time to Time, in Summon- 
 the Queen's Name, by Instrument under the Great Seal House of 
 of Canada, summon and call together the House of Com- Commons, 
 mens* 
 
 39. A Senator shall not be capable of being elected, or Senators 
 of sitting or voting as a Member of the House of Com-Ho^g^g^^^f^° 
 mons. Commons. 
 
 40. Until the Parliament of Canada otherwise provides. Electoral 
 Ontario, Quebec, Nova Scotia and New Brimswick shall, of ^he^fl^ur 
 for the Purposes of the Election of Members to serve in Provinces, 
 the House of Commons, be divided into Electoral Districts 
 
 as follows : — 
 
 I. — Ontario, 
 
 Ontario shall be divided into the Counties, Ridings of 
 Counties, Cities, Parts of Cities, and Towns enumerated 
 in the First Schedule to this Act, each whereof shall be 
 an Electoral District, each such District as numbered 
 in that Schedule being entitled to return One Member. 
 
188 APPENDIX A. 
 
 II. — Quehec, 
 
 Quebec shall be divided into Sixty-five Electoral Dis- 
 tricts, composed of the Sixty-five Electoral Divisions into 
 which Lower Canada is at the passing of this Act divided 
 under Chapter Two of the Consolidated Statutes of Can- 
 ada, Chapter Seventy-five of the Consolidated Statutes for 
 Lower Canada, and the Act of the Province of Canada of 
 the Twenty-third year of the Queen, Chapter One, or any 
 other Act amending the same in force at the Union, so 
 that each such Electoral Division shall be for the Purposes 
 of this Act an Electoral District entitled to return One 
 Member. 
 
 III. — Nova Scotia, 
 
 Each of the Eighteen Counties of Nova Scotia shall be 
 an Electoral District. The County of Halifax shall be 
 entitled to return Two Members, and each of the other 
 Counties One Member. 
 
 IV. — Neiv Brunswich 
 
 Each of the Fourteen Counties into which New Bruns- 
 wick is divided, including the City and County of St. 
 John, shall be an Electoral District The City of St John 
 shall also be a separate Electoral District Each of those 
 Fifteen Electoral Districts shall be entitled to return One 
 Member. 
 
 Continu- 41. Until the Parliament of Canada otherwise provides, 
 
 ance of ^11 Laws in force in the several Provinces at the Union 
 existing 
 
 Election _ relative to the following Matters or any of them, namely. 
 
 Parliament — the Qualifications and Disqualifications of Persons to be 
 
 otherwf^o^ elected or to sit or vote as Members of the House of As- 
 
 provides, sembly or Legislative Assembly in the several Provinces, 
 
 the Voters at Elections of such Members, the Oaths to be 
 
 taken by Voters, the Returning Officers, their Powers and 
 
 Duties, the Proceedings at Elections, the Periods during 
 
 which Elections may be continued, the Trial of Contro- 
 
BRITISH NORTH AMERICA ACT. 189 
 
 verted Elections and Proceedings, Incident thereto, the 
 vacating of Seats of Members, and the Execution of new 
 Writs, in case of Seats vacated otherwise than by Disso- 
 lution, — shall respectively apply to Elections of Members 
 to serve in the House of Commons for the same several 
 Provinces. 
 
 Provided that, until the Parliament of Canada other- Proviso as 
 wise provides, at any Election for a Member of the House ^^ Algoma. 
 of Commons for the District of Algoma, in ad lition to 
 Persons qualified by the Law of the Province of Canada 
 to vote, every male British Subject, aged Twenty-one 
 Years or upwards, being a Householder, shall have a 
 Vote. 
 
 42. For the First Election of Members to serve in the Writs for 
 House of Commons, the Governor-General shall cause 1,^^^.^^^ 
 Writs to be issued by such Person, in such Form and ad- 
 dressed to such Returning Officers as he thinks fit. 
 
 The Person issuing Writs under this Section shall have 
 the like Powers as are possessed at the Union by the 
 Officers charged with the issuing of Writs for the Election 
 of Members to serve in the respective House of Assembly 
 or Legislative Assembly of the Province of Canada, Nova 
 Scotia or New Brunswick ; and the Returning Officers to 
 whom Writs are directed under this Section shall have 
 the like Powers as are possessed at the Union by the Offi- 
 cers charged with the returning of Writs for the Election 
 of Members to serve in the same respective House of As- 
 sembly or Legislative Assembly. 
 
 43. In case a vacancy in the Representation in the As to 
 House of Commons of any Electoral District happens vacaifcies. 
 before the Meeting of the Parliament, or after the Meet- 
 ing of the Parliament before Provision is made by the 
 Parliament in this Behalf, the Provisions of the last fore- 
 going Section of this Act shall extend and apply to the 
 issuing and returning of a Writ in respect of such vacant 
 District. 
 
190 APPENDIX A. 
 
 M to Eleo- 44. The House of Commons, on its first assembling 
 ^eaker of a^ter a general Election, shall proceed with ill practicable 
 ^mmoM ^P®^ ^ ®^6^* ^^® 0^ ^^ Members to be Speaker. 
 As to filling 45. In case of a Vacancy happening in the Office of 
 Sf Office°oT Speaker, by Death, Resignation or otherwise, the House 
 Speaker, of Commons shall, with all practicable Speed, proceed to 
 elect another of its Members to be Speaker. 
 
 Speaker to 46. The Speaker shall preside at all meetings of the 
 preside. ^ ^ « ^~ 
 
 House of Commons. 
 
 kf case^of ^7. Until the Parliament of Canada otherwise provides, 
 absence of in case of the Absence, for any Reason, of the Speaker 
 from the Chair of the House of Commons for a period of 
 Forty-eight Consecutive Hours, the House may elect 
 another of its Members to act as Speaker, and the Mem- 
 ber so elected shall, during the Continuance of such Ab- 
 sence of the Speaker, have and execute all the Powers, 
 Privileges and Duties of Speaker. 
 
 Saorum of 48. The Presence of at least Twenty Members of the 
 ouse of "^ . 
 
 Commons. House of Commons shall be necessary to constitute a 
 Meeting of the House for the Exercise of its Powers ; 
 and for that Purpose the Speaker shall be reckoned as a 
 Member. 
 
 House^of ^^' Questions arising in the House of Commons shall 
 Commons, be decided by a Majority of Voices other than that of the 
 Speaker, and when the Voices are equal, but not other- 
 wise, the Speaker shall have a Vote. 
 
 House of ^^ ^^' ^^'®^y House of Commons shall continue for Five 
 Commons. Years from the day of the Return of the Writs for choos- 
 ing the House (subject to be sooner dissolved by the 
 Governor-General), and no longer. 
 
 Decennial 51, On the completion of the Census in the Year one 
 
 ment of thousand eight hundred and seventy-one, and of each 
 
 ationr^°*' subsequent decennial Census, the Representation of the 
 
 Four Provinces shall be readjusted by such Authority, 
 
BRITISH KORTH AMERICA ACT. 191 
 
 in such a manner, and from such time as the Parliament 
 of Canada from Time to 1 i me provides, subject and ac- 
 cording to the following Rules : — 
 
 (1.) Quebec shall have the fixed Number of Sixty-five 
 Members ; 
 
 (2.) There shall be assigned to each of the other Pro- 
 vinces such a number of Members as will bear the 
 same Proportion to the Number of its Population 
 (ascertained at such Census) as the Number Sixty- 
 five bears to the Number of the Population of 
 Quebec, (so ascertained) ; 
 
 (3.) In the Computation of the Number of Members 
 for a Province, a fractional Part not exceeding One- 
 half of the whole number requisite for entitling 
 the Province to a Member shall be disregarded; 
 but a fractional Part exceeding One-half of that 
 number shall be equivalent to the v/hole number ; 
 
 (4.) On any such Readjustment the Number of Mem- 
 bers for a Province shall not be reduced unless the 
 Proportion which the number of the Population of 
 the Province bore to the Number of the aggregate 
 population of Canada at the then last preceding 
 Readjustment of the Number of Members for the 
 Province is ascertained at the then latest Census 
 to be diminished by One-twentieth Part or upwards ; 
 
 (5.) Such Readjustment shall not take efiect until the 
 Termination of the then existing Parliament. 
 
 52. The Number of Members of the House of Commons increase of 
 may be from Time to Time increased by the Parliament number of 
 of Canada, provided the proportionate Representation of Commons, 
 the Province prescribed by this Act is not thereby dis- 
 turbed. 
 
 Money Votes ; Royal Assent 
 
 53. Bills for appropriating any part of the Public Re- Appropri- 
 venue, or for imposing any Tax or Impost, shall originate Tax^iUs. 
 in the House of Commons. — "~ 
 
192 
 
 APPENDIX A. 
 
 Becom- 
 mendation 
 of money 
 YOtes. 
 
 Boyal 
 Assent to 
 Bills, &c. 
 
 Disallow- 
 snceby 
 Order in 
 CSoanci! of 
 Act assent- 
 «ltoby 
 Governor 
 General. 
 
 Significa- 
 ti<Hi of 
 Queen's 
 pleasure 
 on Bill 
 reiKrved. 
 
 54. It shall not be lawful for the House of Commons to 
 adopt or pass any Vote, Resolution, Address, or Bill for 
 the Appropriation of any Part of the Public Revenue, or 
 of any Tax or Impost, to any Purpose, that has not been 
 first recommended to that House by Message of the Gover- 
 nor General in the Session in which such Vote, Resolution, 
 Address, or Bill is proposed. 
 
 55. Where a Bill passed by the Houses of the Parlia- 
 ment is presented to the Governor-General for the Queen's 
 Assent, he shall declare, according to his discretion, but 
 subject to the Provisions of this Act and to Her Majesty's 
 Instructions, either that he assents thereto in the Queen's 
 Name, or that he withholds the Queen's Assent, or that 
 he reserves the Bill for the Signification of the Queen's 
 Pleasure. 
 
 56. Where the Governor-General assents to a Bill in 
 the Queen's Name, he shall by the first convenient Op- 
 portunity send an authentic Copy of the Act to One of 
 Her Majesty's Principal Secretaries of State, and if the 
 Queen in Council within Two Years after receipt thereof 
 by the Secretary of State thinks fit to disallow the Act, 
 such Disallowance (with a certificate of the Secretary of 
 State of the Day on which the Act was received by him ) 
 being signified by the Governor-General, by speech or 
 Message to each of the Houses of the Parliament or by 
 Proclamation, shall annul the Act from and after the Day 
 of such Signification. 
 
 57. A Bill reserved for the Signification of the Queen's 
 Pleasure shall not have any Force unless and until within 
 Two Years from the day on which it was presented to the 
 Governor-General for the Queen's Assent, the Governor- 
 General signifies, by Speech or Message to each of the 
 Houses of the Parliament or by Proclamation, that it has 
 received the assent of the Queen in Council. 
 
 An Entry of every such Speech, Message, or Proclama- 
 tion shall be made in the Journal of each House, and a 
 
BRITISH NORTH AMERICA ACT. 193 i 
 
 Duplicate thereof duly attested ehall be delivered to the 
 proper officer to be kept among the Records of Cauada. 
 
 v.— PROVlNaAL CONSTITUTIONS. 
 
 Executive Power. 
 
 58. For each Province there shall be an Officer, styled ^pp^^°/- 
 the Lieutenant-Governor, appointed by the Governor- Lieutenant 
 General in Council by Instrument under the Great Seal of of*pro?°" 
 Canada. '^'^'^^^' 
 
 59. A Lieutenant-Governor shall hold Office during the Tenure of 
 Pleasure of the Governor-General ; but any Lieutenant- Lieutenant 
 Governor appointed after the Commencement of the First <^ovemor. 
 Sessionof the Parliament of Canada shall not be remov- 
 able within Five Years from bis Appointment, except for 
 
 cause assigned, which shall be communicated to him in 
 Writing within One Month after the Order for his Remo- 
 val is made, and shall be communicated by Message 
 to the Senate and to the House of Commons within 
 One Week thereafter if the Parliament is then sitting, 
 and if not then, within One Week after the Commence- 
 ment of the next Session of the Parliament. 
 
 60. The Salaries of the Lieutenant-Governors shall be Salaries of 
 fixed and provided by the Parliament of Canada. Govemora.* 
 
 61. Every Lieutenant-Governor shall, before assuming Oaths, Ac. 
 the Duties of his office, make and subscribe before the GovernoT 
 Governor-General or some Person authorized by him, 
 
 Oaths of Allegiance and Office similar to those taken by 
 the Governor-General. 
 
 62. The Provisions of this Act referring to the Lieuten-^ ,. .., 
 
 ant-Governor extend and apply to the Lieutenant-Gover- ofprovi- 
 
 nor for the Time being of each Province or other the rinS^^^®'* 
 
 Chief Executive Officer or Administrator for the Time Lieutenant 
 1 . . ^ 1 r-. - , Uovernor. 
 
 bemg carrymg on the Government of the Province, by 
 
 whatever Title he is designated. 
 13 
 
194 APPENDIX A. 
 
 Appoint- 63. The Executive Council of Ontario and Quebec shall 
 
 Executive ^^ composed of such Persons as the Lieutenant-Governor 
 
 Ontario [nd^^^^ Time to Time thir^.s fit, and in the first instance of 
 
 Quebec. the following Officers, xiamely, the Attorney-General, the 
 
 Secretary and Registrar of the Province, the Treasurer of 
 
 the Province, the Commissioner of Crown Lands, and the 
 
 Commissioner of Agriculture and Public Works, within 
 
 Quebec, the Speaker of the Legislative Council and the 
 
 Solicitor-General. 
 
 Executive 64. The Constitution of the Executive Authority in 
 ment of Ciich of the Provinces of Nova Scotia and New Brunswick 
 and New shall, subject to the Provisions of this Act, continue as it 
 Brunswick, exists at the Union, until altered under the Authority of 
 this Act 
 
 ?« Y3!!^ ^^ 65. All Powers, Authorities, and Functions which under 
 
 De exer~ 
 
 cised by any Act of the Parliament of Great Britain, or of the 
 Governor Parliament of the United Kingdom of Groat Britain and 
 or Quebec* Ireland, or of the Legislature of Upper Canada, Low^er 
 with advice Canada, or Canada, were or are before or at the U nion 
 vested in or exercisible by the respective Governors or 
 Lieutenant-Governors of those Provinces, with the Advice, 
 or with the Advice and Consent, of the respective Execu- 
 tive Councils thereof, or in conjunction with those Coun- 
 cils or with any Number of Members thereof, or by those 
 Governors or Lieutenant-Governors individually, shall, as 
 far as the same are capable of being exercised after the 
 Union in relation to the Government of Ontario and 
 Quebec respectively, be vested in and shall or may be 
 exercised by the Lieutenant-Governor of Ontario and 
 Quebec respectively, with the Advice, or with the Advice 
 and Consent of, or in conjunction with the respective 
 Executive Councils or any Members thereof, or by the 
 Lieutenant-Governor individually, as the case requires, 
 subject nevertheless, (except with respect to such as exist 
 under Acts of the Parliament of Great Britain, or of the 
 Parliament of the United Kingdom of Great Britain and 
 
BRITISH NORTH AMERICA ACT. 195 
 
 Ireland), to he abolished or altered by the respective Le- 
 gislatures of Ontario and Quebec. 
 
 66. The Provisions of this Act referring to the Lieuten- Applioa- 
 ant-Governor in Council shall be construed as referring to provisions 
 the Lieutenant-Governor of the Province acting by and ]2eu?enant 
 with the Advice of the Executive Council thereof. Governor in 
 
 Council. 
 
 67. The Governor-General in Council may from Time to Adminis- 
 Time appoint an Administrator to execute the Office and aij^encel^ 
 
 Functions of Lieutenant-Governor during his Absence, f'p-. of 
 _,- IT,.,. Lieutenant 
 
 Illness, or other Inability. Governor. 
 
 68. Unless and until the Executive Government of any Seats of 
 Province otherwise directs with respect to that Province, Govern^* 
 the Seats of Government of the Provinces shall be as fol- ment. 
 lows, namely, — of Ontario, the City of Toronto ; of Quebec , 
 
 the City of Quebec ; of Nova Scotia, the City of Halifax ; 
 and of New Biunswick, the City of Fredericton. 
 
 Legislative Power, 
 1. — Ontario, 
 
 69. There shall be a Legislature for Ontario, consisting Legislature 
 of the Lieutenant-Governor and of One House, styled the for Ontario. 
 Legislative Assembly of Ontario. 
 
 70. The Legislative Assembly of Ontario shall be com- Electoral 
 posed of Eighty-two Members, to be elected to represent 
 
 the Eighty-two Electoral Districts set forth in the First 
 Schedule to this Act. 
 
 2. — Quebec 
 
 71. There shall be a Legislature for Quebec, consisting Legislature 
 of the Lieutenant-Governor and Two Houses, styled the ^<^r Quebec. 
 Legislative Council of Quebec and the Legislative Assem- 
 bly of Quebec. 
 
 72. The Legislative Council of Quebec shall be com- 
 posed of twenty-four Members, to be appointed by the 
 
196 APPENDIX A. 
 
 ConBtitu- Lieutenant-Governor in the Queen's Name by Instrument 
 LeSSativo ^^d®^' ^^^ Great Seal of Quebec, one being appointed to 
 CounciL represent each of the Twenty-four Electoral Divisions of 
 Lower Canada in this Act referred to, and each holding 
 Office for the Term of his life, unless the Legislature of 
 Quebec otherwise provides under the Provisions of thia 
 Act. 
 
 8S?"f°^" ^^* ^^® Qualifications of the Legislative Councilbrs of 
 Legislative Quebec shall be the same as those of the Senators for 
 eiUors. Quebec. 
 
 Resigrna- 74- The Place of a Legislative Councillor of Quebec 
 qSifica- shall become vacant in the Cases, mutatis mutandis, in 
 tion, &e. -which the Place of Senator becomes vacant. 
 
 Vacancies. 75. When a vacancy happens in the Legislative Council 
 of Quebec by Resignation, Death, orotnerwise, the Lieu- 
 tenant-Governor, in the Queen's Name, by Instrument 
 under the Great Seal of Quebec, shall appoint a fit and 
 qualified Person to fill the Vacancy. 
 
 Qnestjons 76. If any Question arises respecting the Qualification 
 eancies, &c. of a Legislative Councillor of Quebec, or a vacancy in 
 the Legislative Council of Quebec, the same shall be heard 
 and determined by the Legislative Council. 
 
 Speaker of 77. The Lieutenant-Governor may, from Time to Time, 
 
 ^gislative ^y Instrument under the Great Seal of Quebec, appoint 
 
 a Member of the Legislative Council of Quebec to be 
 
 Speaker thereof, and may remove him and appoint 
 
 another in his Stead. 
 
 Qnorumof 78. Until the IjOgislature of Quebec otherwise pro- 
 Oowfcf/^^* vides, the Presence of at least Ten Members of the Legis- 
 lative Council, including the Speaker, shall be necessary 
 to constitute a Meeting for the Exercise of its Powers. 
 
 Voting m 79, Questions arising in the Legislative Council of Que- 
 
 C^cfl.^^* bee shall be decided by a Majority of Voices, and the 
 
 Speaker shall in all cases have a Vote, and when the 
 
BRITISH NORTH AMERICA ACT. 197 
 
 Voices are equal, the Decision shall be deemed to be in 
 the negative. 
 
 SO. The Legislative Assembly of Quebec shall be com- ^^J^^}^' 
 posed of Sixty-five Members, to be elected to represent Legislative 
 the Sixty- five Electoral Divisions or Districts of Lower o/Quebw. 
 Canada in this Act referred to, subject to Alteration 
 thereof by the Legislature of Quebec : Provided that it 
 shall not be lawful to present to the Lieutenant-Governor 
 of Quebec for Assent any Bill for altering the Limits of 
 any of the Electoral Divisions or Districts mentioned in 
 the Second Schedule to this Act, unless the Second and 
 Third Readings of such Bill have been passed in the Le- 
 gislative Assembly with the Concurrence of the Majority 
 of the Members representing all those Electoral Divisions 
 or Districts, and the Assent shall not be given to such 
 Bill unless an Address has been presented by the Legis- 
 lative Assembly to the Lieutenant-Governor, stating that 
 it has been so passed. 
 
 3. — Ontario and Quebec, 
 
 81. The T-iOgislatures of Ontario and Quebec respectively First Set 
 shall be called together not later than Six Months after ilegisla- 
 the Union. ^«'^«8- 
 
 82. The Lieutenant-Governor of Ontario and of Quebec Summoa- 
 shall, from time to time, in the Queen's Name, by Instru- Legislative 
 ment under the Great Seal of the Province, summon '^^®°^**^®^ 
 and call together the Legislative Assembly of the Pro- 
 
 vinca 
 
 83. Until the Legislature of Ontario or of Quebec other- Restrictioa 
 "Wise provides, a Person accepting or holding m Ontario or of hoidei* 
 in Quebec, any Office, Commission or Employment, per-®^ offices, 
 manent or temporary, at the nomination of the Lieuten- 
 ant-Governor, to which an annual Salary, or any Fee, 
 Allowance, Emolument or profit of any kind or Amount 
 "Whatever from the Province is attached, shall not be eli- 
 
198 APPENDIX A. 
 
 gible aa a Member of the Legislative Assembly of the 
 respective Province, nor shall he sit or vote as such ; but 
 nothing in this Section shall make ineligible any Person 
 being a member of the Executive Council of the respec- 
 tive Province, or holding any of the following offices, that 
 is to say, the offices of Attorney-General, Secretary and 
 Registrar of the Province, Treasurer of the Province, Com- 
 missioner of Crown Lands, and Commissioner of Agricul- 
 ture and Public "Works, and in Quebec, Solicitor-General, 
 or shall disqualify him to sit or vote in the House for 
 which he is elected, provided he is elected while holding 
 such office. 
 
 aS?e'o?* ^^* ^^^^^ *^® Legislatures of Ontario and Quebec re- 
 existing spectively otherwise provide, all Laws which at the Union 
 laws. are in force in those Provinces respectively, relative to the 
 
 following matters or any of them, namely, — the Qualifi- 
 cations and Disqualifications of Persons to be elected or to 
 sit or vote as Members of the Assembly of Canada, the 
 Qualifications or Disqualifications of Voters, the Oaths to 
 be taken by Voters, the Returning Officers, their Powers 
 and Duties, the Proceedings at Elections, the Periods 
 during which such Elections may be continued, and the 
 trial of Controverted Elections and the Proceedings inci- 
 dent thereto, the vacating of the Seats of Members, and 
 the issuing and execution of new Writs in case of Seats 
 vacated otherwise than by Dissolution, shall respectively 
 apply to Elections of Members to serve in the respective 
 Legislative Assemblies of Ontario and Quebec 
 
 Provided that until the Legislature of Ontario other- 
 wise provides, at any Election for a member of the Legis- 
 lative Assembly of Ontario for the District of Algoma, in 
 addition to persons qualified by the Law of the Province 
 of Canada to vote, every male British Subject aged Twenty- 
 one Years or upwards, being a Householder, shall have a 
 Vote. 
 Duration of 85. Every Legislative Assembly of Ontario and every 
 As^mblill Legislative Assembly of Quebec shall continue for Four 
 
BRITISH NORTH AMERICA ACT. 199 
 
 Years from the Day of the Return of the Writs for choos- 
 ing the same (subject, nevertheless, to either the Legisla- 
 tive Assembly of Ontario or the Legislative Assembly of 
 Quebec being sooner dissolved by the Lieutenant-Governor 
 of the Province), and no longer. 
 
 86. There shall be a Session of the Legislature of On- Yearly 
 tario and of that of Quebec, once at least in every Year, so |^^fgj".*'^ 
 that Twelve Months shall not intervene between the last ture. 
 Sitting of the Legislature in each Province in one Session 
 
 and its first sitting in the next Session. 
 
 87. The following Provisions of this Act respecting the Speaker, 
 House of Commons of Canada, shall extend and apply ^q ^"°^"™''*°* 
 the Legislative Assemblies of Ontario and Quebec, that 
 
 is to say, — the Provisions relating to the Election of a 
 Speaker originally and on Vacancies, the Duties of the 
 Speaker, the Absence of the Speaker, the Quorum, and to 
 the Mode of Voting, as if those Provisions were here re- 
 enacted and made applicable in terms to each such Legis- 
 lative Assembly. 
 
 4. — Nova Scotia and New Brunsndck, 
 
 88. The Constitution of the Legislature of each of the Constitu- 
 
 Provinces of Nova Scotia and New Brunswick shall, sub- \^^^? P^ 
 
 i*egisla- 
 
 ject to the Provisions of this Act, continue as it exists at turea of 
 the Union until altered under the Authority of this Act ; and New ^ 
 and the House of Assembly of New Brunswick existing ^"*°s^^°^- 
 at the passing of this Act shall, unless sooner dissolved, 
 con' *nue for the period for which it was elected. 
 
 5. — OntariOf Quebec and Nova Scotia, 
 
 89. Each of the Lieutenant-Governors of Ontario, Que- «. 
 
 bee, and Nova Scotia, shall cause Writs to be issued for eieotiona. 
 the first Election of Members of the Legislative Assembly 
 thereof in such Form and by such Person as he thinks fit, 
 and at such Time addressed to such Returning Officer as 
 
200 APPENDIX A. 
 
 the Governor-General directs, and so that the first Elec- 
 tion of Member of Assembly for any Electoral District or 
 any Subdivision thereof shall be held at the same Time 
 and at the same Places as the Election for a Member to 
 serve in the House of Commons of Canada for that Elec- 
 toral District. 
 
 6. — The Four Provinces, 
 
 Applica- 90. The following Provisions of this Act respecting the 
 iiegisla- Parliament ox Canada, namely, — the Provisions relating 
 tures 9f to Appropriation and Tax Bills, the Recommendation of 
 
 provisions a * * i 
 
 respecting Money Votes, the Assent to Bills, the Disallowance of 
 vx>tesf&c. -^^^s ^^^ the Signification of Pleasure on Bills reserved, 
 — shall extend and apply to the Legislatures of the several 
 Provinces as if those Provisions were here re-enacted and 
 made applicable in Terms to the respective Provinces and 
 the Legislatures thereof, with the Substitution of the 
 Lieutenant-Governor of the Province for the Governor- 
 General, of the Governor-General for the Queen, and for 
 a Secretary of State, of One Year for Two Years, and of 
 the Province for Canada. 
 
 VI. — DISTRIBUTION OF LEGISLATIVE POWERS. 
 
 Powers of the Parliament, 
 
 Legislative 91. It shall be lawful for the Queen, by and with the 
 
 Authori"^ " 
 of Parli) 
 ment of 
 Canada. 
 
 of^Parfia^ Advlce and Consent of the Senate and House of Commons, 
 
 f?<f "o^^^o^ to make Laws for the Peace, Order and Good Government 
 of Canada in relation to all Matters not coming within the 
 Classes of Subjects by this Act assigned exclusively to the 
 Legislatures of the Provinces ; and for greater certainty, 
 but not so as to restrict the Generality of the foregoing 
 Terms of this Section, it is hereby declared that (notwith- 
 standing anything in this Act) the exclusive Legislative 
 Authority of the Parliament of Canada extends to all 
 Matters coming within the Classes of Subjects next here- 
 inafter enumerated, that is to say : — 
 
BBITISH NORTH AMERICA ACT. 201 
 
 " 1. The Public Debt and Property. 
 
 2. The Regulation of Trade and Commerce. 
 
 3. The Raising of Money by any Mode or System of 
 
 Taxation 
 
 4. The borrowing of Money on the Public Credit. 
 
 \ 5. Postal Service. 
 
 6. The Census and Statistics. 
 
 7. Militia, Military and Naval Service and Defence. 
 
 8. The fixing of and providing for the Salaries and Al- 
 ^ lowances of Civil and other Officers of the Gov- 
 ernment of Canada. 
 
 \ 9. Beacons, Buoys, Lighthouses and Sable Island. 
 10. Navigation and Shipping. 
 ^ 11. Quarantine and the Establishment and Mainten- 
 ance of Marine Hospitals. 
 
 12. Sea Coast and Inland Fisheries. 
 
 13. Ferries between a Province and any British or 
 
 Foreign Country, or between Two Provinces. 
 
 14. Currency and Coinaga 
 
 r 15. Banking, IncorporationofBanks and the Issue of 
 
 Paper Money. 
 n16. Savings Banks. 
 jl7. Weights and Measures. 
 
 18. Bills of Exchange and Promissory Notes. 
 
 19. Interest. 
 
 20. Legal Tender. 
 
 21. Bankruptcy and Insolvency. 
 
 22. Patents of Invention and Discovery. 
 
 23. Copyrights. 
 
 . 24. Indians and Lands reserved for the Indians. 
 \ 25. Naturalization and Ahens. 
 
 26. Marriage and Divorce. 
 
 27. The Criminal Law, except the Constitution of the 
 
 Courts of Criminal Jurisdiction, but including 
 the Procedure in Criminal Matters. 
 
 28. The Establishment, Maintenance and Manage- 
 
 ment of Penitentiaries. 
 
202 APPENDIX A. 
 
 29. Such Classes of Subjects as are expressly excepted 
 in the Enumeration of the Classes of Subjects 
 by this Act assigned exclusively to the Legisla- 
 tures of the Provinces. 
 
 And any Matter coming within any of the Classes of 
 Subjects enumerated in this Section shall not be deemed 
 to come within the Class of Matters of a local or private 
 Nature comprised in the Enumeration of the Classes of 
 Subjects by this Act assigned exclusively to the Legisla- 
 tures of the Provinces. 
 
 Exclusive Powers of Provincial Legislatures, 
 
 Subjects of 92, In each Province the Legislature may exclusively 
 Proviuciai make Laws in relation to Matters coming within the 
 tioSf Classes of Subjects next hereinafter enumerated ; that is 
 to say : — 
 
 1. The Amendment from Time to Time, notwith- 
 
 standing anything in this Act, of the Constitu- 
 tion of the Province, except as regards the 
 Office of Lieutenant-Governor, 
 
 2. Direct Taxation within the Province in order to 
 
 the raising of a Revenue for Provincial Pur- 
 poses. 
 
 3. The borrowing of Money on the sole Credit of the 
 
 Province. 
 
 4. The Establishment and Tenure of Provincial 
 
 Offices, and the Appointment and Payment of 
 Provincial Officers. 
 
 5. The Management and Sale of the Public Lands 
 
 belonging to the Province, and of the Timber 
 and Wood thereon. 
 
 6. The Establishment, Maintenance, and Manage- 
 
 ment of Public and Reformatory 'Prisons in and 
 for the Province. 
 
BRITISH NORTH AMERICA ACT. 203 
 
 7. The Establishment, Maintenance, and Manage- 
 
 ment of Hospitals, Asylums, Charities and 
 Eleemosynary Institutions in and for the Pro- 
 vince, other than Marine Hospitals. 
 
 8. Municipal Institutions in the Province. 
 
 9. Shop, Saloon, Tavern, Auctioneer, and other 
 
 Licenses, in order to the raising of a Revenue 
 for Provincial, Local, or Municipal Purposes. 
 
 10. Local Works and Undertakings, other than such 
 
 as are of the following Classes, — 
 
 a. Lines of Steam or other Ships, Railways, Canals, 
 
 Telegraphs, and other Works and Undertak- 
 ings, connecting the Province with any other 
 or others of the Provinces, or extending beyond 
 the Limits of the Province : 
 
 b. Lines of Steamships between the Province and 
 
 any British or Foreign Country : 
 
 c. Such Works as, although wholly situate within 
 
 the Province, are before or after their Execution 
 declared by the Parliament of Canada to be for 
 the general Advantage of Canada or for the 
 Advantage of Two or more of the Provinces. 
 
 11. The Incorporation of Companies with Provincial 
 
 Objects. 
 
 12. Solemnization of Marriage in the Province. 
 
 13. Proi)erty and Civil Rights in the Province. 
 
 14. The Administration of Justice in the Province, 
 
 Including the Constitution, Maintenance, and 
 Organization of Provincial Courts, both of Civil 
 and of Criminal Jurisdiction, and including 
 Pi'ocedure in Civil Matters in those Courts. 
 
 15. The Imposition of Punishment by Fine, Penalty, 
 
 or Imprisonment for enforcing any Law of the 
 Province made in relation to any Matter com- 
 ing within an yof the Classes of subjects enume- 
 rated in this Section. 
 
204 APPENDIX A. 
 
 16. Generally all matters of a merely local or private 
 nature in the Province. 
 
 Education, 
 
 Legislation 93, In and for each Province the Legislature may ex- 
 respecting 
 education, clusively make Laws in relation to Education, subject and 
 
 according to the following Provisions : — 
 
 (1.) Nothing in any such Law shall prejudicially 
 affect any Right or Privilege with respect to 
 Denominational Schools which any Class of 
 Persons have by Law in the Province at the 
 Union; 
 
 (2.) All the Powers, Privileges, and Duties at the 
 Union by Law conferred and imposed in Upper 
 Canada on the Separate Schools and School 
 Trustees of the Queen's Roman Catholic Sub- 
 jects, shall be and the same are hereby extended 
 to the Dissentient Schools of the Que en's Protes- 
 tant and Roman Catholic Subjects in Quebec ; 
 
 (3.) Where in any Province a System of Separate or 
 Dissentient Schools exists by Law at the Union 
 or is thereafter established by the Legislature 
 of the Province, an Appeal shall lie to the Gov- 
 ernor-General in Council from any Act or Deci- 
 sion of any Provincial Authority affecting any 
 Right or Privilege of the Protestant or Roman 
 Catholic Minority of the Queen's Subjects in re- 
 lation to Education ; 
 
 (4.) In case any such Provincial Law as from Time 
 to Time seems to the Governor-General in Coun- 
 cil requisite for the due Execution of the Provi- 
 sions of this Section is not made, or in case any 
 Decision of the Governor-General in Council on 
 any Appeal under this Section is not duly ex- 
 ecuted by the proper Provincial Authority in 
 that behalf, then and in every such case, and as 
 
 I 
 
BRITISH KORTH AMERICA ACT. 205 
 
 far only as the circumstances of each case re- 
 quire, the Parliament of Canada may make re- 
 medial Laws for the due Execution of the 
 Provisions of this Section, and of any Decision 
 of the Governor-General in Council under this 
 Section. 
 
 Uniformity of Laws in Ontario, Nova Scotia and New 
 
 Brunmich, 
 
 94. Notwithstanding anything in this Act, the Parlia- ^^islation 
 ment of Canada may make Provision for the Uniformity fomity of 
 of all or any of the Laws relative to Property and Civil Jhrle" 
 Rights in Ontario, Nova Scotia and New Brunswick, and Provinces, 
 of the Procedure of all or any of the Courts in those Three 
 Provinces, and from and after the passing of any Act in 
 
 that behalf, the Power of the Parliament of Canada to 
 make Laws in relation to any matter comprised in any 
 such Act shall, notwithstanding anything in this Act, be 
 unrestricted ; but any Act of the Parliament of Canada 
 making Provision for such Uniformity, shall not have 
 effect in any Province unless and until it is adopted and 
 enacted as Law by the Legislature thereof. 
 
 Agriculture and Immigration, 
 
 95. In each Province the Legislature may make Laws Concurrent 
 in relation to Agriculture in the Province, and to Immi- fegTslSion 
 gration into the Province; and it is hereby declared that refpectiSS 
 the Parliament of Canada may from Time to Time make fc!'"'^^""' 
 Laws in relation to Agriculture in all or any of the Pro- 
 vinces, and to Immigration into all or any of the Pro- 
 vinces; and any Law of the Legislature of a Province, 
 relative to Agriculture or to Immigration, shall have effect 
 
 in and for the Province, as long and as far only as it is 
 not repugnant to any Act of the Parliament of Canada. 
 
 VIL — ^JUDICATURE, 
 
 96. The Govemor-General shall appoint the Judges of Appoint- 
 the Superior, District and County Courts in each Province, fX^ 
 
206 APPENDIX A. 
 
 except those of the Courts of Probate in Nova Scotia and 
 New Brunswick. 
 
 Selection of 97. Until the Laws relative to Property and Civil Rights 
 Ontario^&c ^^ Ontario, Nova Scotia and New Brunswick, and the 
 Procedure of the Courts in those Provinces, are made uni- 
 form, the Judges of the Courts of those Provinces appointed 
 by the Governor-General shall be selected from the re- 
 spective Bars of those Provinces. 
 
 Releotien of ^^* "^^^ Judges of the Courts of Quebec, shall be selected 
 
 Judges in from the Bar of that Province. 
 Qaeoeo. 
 
 Tenure of ^^* "^^^ Judges of the Superior Courts shall hold office 
 
 office of during good behaviour, but shall be removable by the 
 
 Superior Governor-General on Address of the Senate and House of 
 
 Courts. Commons. 
 
 Salaries, ^^^' ^^^ Salaries, Allowances and Pensions of the 
 J°^eL J^^iges of the Superior, District and County Courts (ex- 
 cept the Courts of Probate in Nova Scotia and New Bruns- 
 wick) and of the Admiralty Courts in cases Tvhere the 
 Judges thereof are for the time being paid by Salary, shall 
 be fixed and provided by the Parhament of Canada. 
 
 General 101. The Parliament of Canada may, notwithstanding 
 
 Appeal, &c. anything in this Act, from Time to Time, provide for the 
 Constitution, Maintenance and Organization of a General 
 Court of Appeal for Canada, and for the Estabhshment of 
 any additional Courts for the better Administration of the 
 Laws of Canada. 
 
 VIII. — EEVENTJES ; DEBTS ; ASSETS } TAXATION. 
 
 Creation of 102. All Duties and Revenues over which the respective 
 dated'^' Legislatures of Canada, Nova Scotia and New Brunswick 
 Fund"^^ before and at the Union, had and have power of Appro' 
 priation, except such Portions thereof as are by this Act 
 reserved to the respective Legislatures of the Provinces, 
 or are raised by them in accordance with the special 
 Powers conferred on them by this Act, s^all form One 
 
BRITISH NORTH AMERICA ACT. 201 
 
 Consolidated Revenue Fund, to be appropriated for the 
 Public Service of Canada in the Manner and subject to 
 the Charges in this Act provided. 
 
 103. The Consolidated Revenue Fund of Canada shall Expenses 
 be permanently charged with the Costs, Charges and t/on?&^cJ" 
 Expenses incident to the Collection, Management, and 
 Receipt thereof, and the same shall form the First Charge 
 thereon, subject to be reviewed and audited in such Man- 
 ner as shall be ordered by the Governor-General in Coun- 
 cil until the Parliament otherwise provides. 
 
 104. The annual Interest of the Public Debts of the Interest of 
 several Provinces of Canada, Nova Scotia, and New Bruns- pubHo°°^^ 
 wick at the Union shall form the Second Charge on the *^^^*^* 
 Consolidated Revenue Fund of Canada. 
 
 105. Unless altered by the Parliament of Canada, the Salary of 
 Salary of the Governor-General shall be Ten Thousand go^eJ'^or 
 Pounds Sterlmg Money of the United Kingdom of Great ^"^"^^ 
 Britain and Ireland, payable out of the Consolidated Re- 
 venue Fund of Canada, and the same shall form the Third 
 Charge thereon. 
 
 106. Subject to the several Payments by this Act Appro- 
 charged on the Consolidated Revenue Fund of Canada, From'thne 
 the same shall be appropriated by the ParUament oftotime."^^ 
 Canada for the Public Service. 
 
 107. All Stocks, Cash, Bankers' Balances, and Securities Transfer of 
 for Money belonging to each Province at the Time of the^*^^^''^*^* 
 Union, except as in this Act mentioned, shall be the Pro- 
 perty of Canada, and shall be taken in Reduction of the 
 amount of the respective Debts of the Provinces at the 
 
 Union. 
 
 108. The Public Works and Property of each Province Transfer of 
 enumerated in the Third Schedule to this Act shaU be the Wi^%''*'^ '"^ 
 Property of Canada. Schedule. 
 
 ^ 109. All Lands, Mines, Minerals, and Royalties belong- Property in 
 iHg to the several Provinces of Canada, Nova Scotia andS,<fec. 
 
208 APPENDIX A. 
 
 Kew Brunswick at the Union, and all sums then due or 
 payable for such Lands, Mines, Minerals, or Royalties, 
 shall belong to the several Provinces of Ontario, Quebec, 
 Nova Scotia and New Brunswick in which the same are 
 situate or arise, subject to any Trust existing in respect 
 thereof, and to any Interest other than that of the Pro- 
 vince in the same. 
 
 jL»ets con- HO. All Assets connected with such Portions of the 
 Provincial Public Debt of each Province as are assumed by that Pro- 
 debts, vince shall belong to that Province. 
 
 Canada to HI. Canada shall be liable for the Debts and Liabilities 
 be liable for . ,_ . . ,. . ., -ry • 
 
 Provincial 01 each Province existmg at the union, 
 iebts. 
 
 Debts of ^^^' Ontario and Quebec conjointly shall be liable to 
 gntario and Canada for the amount (if any) by which the Debt of the 
 Province of Canada exceeds at the Union Sixty-two mil- 
 lion five hundred thousand Dollars, and shall be charged 
 with Interest at the Rate of Five per centum per annum 
 thereon. 
 
 Assets of 113. The Assets enumerated in the Fourth Schedule to 
 <£ebec. this Act, belonging at the Union to the Province of Can- 
 ada, shall be the Property of Ontario and Quebec con- 
 jointly. 
 
 Debt of 114. Nova Scotia shall be liable to Canada for the 
 
 Scotia. Amount (if any) by which its Public Debt exceeds at the 
 
 Union Eight million Dollars, and shall be charged with 
 
 Interest at the rate of Five per centum per Annum 
 
 thereon. 
 
 Debt of 115. New Brunswick shall be liable to Canada for the 
 
 Branswick. Amount (if any) by which its Public Debt exceeds at 
 
 the Union Seven million Dollars, and shall be charged 
 
 with Interest at the rate of Five per centum per Annum 
 
 thereon. 
 
 Payment 116. In case the Public Debts of Nova Scotia and New 
 Joiiorr^* Brunswick do not at the Union amount to Eight million 
 
 Scotia and and Seven million Dollars respectively/ they shall re- 
 
 Wew 
 
 Brunswick. 
 
BRITISH NORTH AMERICA ACT. 209 ; 
 
 spectively receive, by half-yearly Payments in advance 
 from the Government of Canada, Interest at Five per 
 centum per Annum on the Difference between the actual 
 Amounts of their respective Debts and such stipulated 
 Amounts. 
 
 117. The several Provinces shall retain all their respec- Provincial 
 tive Public Property not otherwise disposed of in this Act, property, 
 subject to the Right of Canada to assume any Lands or 
 Public Property required for Fortifications or for the De- 
 fence of the country. 
 
 118. The following sums shall be paid yearly by Canada grants to 
 to the several Provinces for the support of their Govern- 
 ments and Legislatures : 
 
 LiOIXARS. 
 
 Ontano - Eighty thousand. 
 
 Quebec . - - Seventy thousand. 
 
 Nova Scotia --.--.- Sixty thousand. ( 
 
 New Brmiswick - - - - . Fifty thousand. ! 
 
 ! 
 
 Two hundred and Sixty thousand ; ■ 
 
 and an annual Grant in aid of each Province shall be 
 made, equal to Eighty cents per Head, of the Population 
 as ascertained by the Census of One Thousand eight hun- 
 dred and Sixty-one, and in tie case of Nova Scotia and 
 New Brunswick, by each subsequent Decennial Census 
 until the Population of each of those two Provinces 
 amounts to Four hundred thousand Souls, at which Rate 
 such Grant shall thereafter remain. Such Grant shall be 
 in full Settlement of all future Demands on Canada, and 
 shall be paid half- yearly in advance to each Province , 
 but the Government of Canada shall deduct from such 
 Grants, as against any Province, all Sums chargeable as 
 Interest on the Public Debt of that Province in excess of 
 the several amounts stipulated in this Act. 
 
 119. New Brunswick shall receive, by half-yearly Pay- Further 
 ments in advance from Canada, for the Period of Ten ffew 
 Years from the Union, an additional Allowance of Sixty- ^r^^^^s^ck- 
 
 14 
 
210 
 
 APPENDIX A, 
 
 Form of 
 payments. 
 
 three thousand Dollars per Annum ; but as long as the 
 Public Debt of that Province remains under Seven million 
 Dollars, a deduction equal to the Interest at Five per cen- 
 tum per Annum on such Deficiency shall be made from 
 that Allowance of Sixty-three thousand Dollars. 
 
 120. All Payments to be made under this Act, or in dis- 
 charge of Liabilities created under any Act of the Provinces 
 of Canada, Nova Scotia and New Brunswick, respectively, 
 and assumed by Canada, shall until the Parliament of 
 Canada otherwise directs, be made in such Form and 
 Manner as may from Time to Time be ordered by the 
 Governor-General in Council. 
 
 Canadian 121. All Articles of the Growth, Produce or Manufac- 
 
 tires*, &G, ^'"^"^ 'f ^^y one of the Provinces shall, from and after the 
 
 Union, be admitted free into each of the other Provinces. 
 
 Continu- 122. The Customs and Excise Laws of each Province 
 
 customs shall, subject to the Provisions of this Act, continue in 
 
 nnd excise force until altered by the Parhament of Canada, 
 laws. •' 
 
 Exporta 
 tiou and 
 
 ipc 
 be 
 
 as between 
 two Pro- 
 vinces. 
 
 123. Where Customs Duties are, at the Union, leviable 
 importation on any Goods, Wares or Merchandises in any Two Pro- 
 vinces, those Goods, Wares and Merchandises may, from 
 and after the Union, be imported from one of those Pro- 
 vinces into the other of them, on Proof of Payment of the 
 Customs Duty leviable thereon in the Province of Expor- 
 tation, and on payment of such further amount (if any) of 
 Customs Duty as is leviable thereon in the Province of Im- 
 portation. 
 
 Lumber ^^^* Nothing in this Act shall afiect the Right of Ne^v 
 
 dues inNew Brunswick to levy the Lumber Dues provided in Chapter 
 * Fifteen of Title Tiiree of the Revised Statutes of New 
 Brunswick, or in any Act amending that Act before or 
 after the Union, and not increasing the Amount of such 
 Dues ; but the Lumber of any of the Provinces other than 
 New Brunswick shall not be subject to such Dues. 
 
BRITISH NORTH AMERICA ACT. 211 
 
 125. No Lands or Property belonging to Canada or any Exemption 
 Province shall be liable to Taxation. fan'ds^&l 
 
 126. Such Portions of the Duties and Revenues over provincial 
 which tbe respective Legislatures of Canada, Nova Scotia j^^^j'^' 
 and New Brunswick had before the Union, Power of Ap- revenue 
 propriation, as are by this Act reserved to the respective " 
 Governments or Legislatures of the Provinces, and all 
 Duties and Revenues raised by them in accordance with 
 
 the Sp3cial Powers conferred upon them by this Act, 
 shall in each Province form One Consolidated Revenue 
 Fund to be appropriated for the Public Service of the 
 Province, 
 
 IX.— MISCELLANEOUS PROVISIONS. 
 
 General, 
 
 127. If any Person, being, at the passing of this Act, a As to 
 Member of the Legislative Council of Canada, Nova Scotia CounciUora 
 or New Brunswick, to whom a Place in the Senate is^.L^!!?' 
 
 ' winces 
 
 offered, does not within Thirty Days thereafter, by Writ- i;<coming 
 
 ing under his Hand, addressed to the Governor-General 
 
 of the Province of Canada or to the Lieutenant-Governor 
 
 of Nova Scotia or New Brunswick (as the case may be), 
 
 accept the same, he shall be deemed to have declined the 
 
 same ; and any Person who, being at the passing of this 
 
 Act a Member of the Legislative Council of Nova Scotia 
 
 or New Brunswick, accepts a Place in the Senate, shall 
 
 thereby vacate his seat in such Legislative Council. 
 
 128. Every Mamber of the Senate or House of Com-Oatho" 
 mens of Canada shall, before taking his Seat therein, Scq. °* 
 take and subscribe before the Governor-General or some 
 Person authorized by him, and every Member of a Legis- 
 lative Council or Legisl itive Assembly of any Province 
 
 shall, before taking his Seat therein, take and subscribe 
 before the Lieutenant-Governor of the Province, or some 
 Person authorized by him, the Oath of Allegiance con- 
 tained in the Fifth Schedule to this Act ; and every Mem- 
 ber of the Senate of Canada and every Member of the 
 
212 APPENDIX A. 
 
 Legislative Conncil of Quebec gball also, before taking bis 
 Seat tberein, take and subscribe before tbe Governor- 
 General, or some Person authorized by him, the Declara- 
 tion of Qualification contained in the same Schedule. 
 
 Continu- 129. Except as otherwise provided by this Act, all L^iws 
 existing ^^ force in Canada, Nova Scotia, or New Brunswick at the 
 court? Union, and all Courts of Civil and Criminal Jurisdiction, 
 officers, Ac and all Legal Commissions, Powers and Authorities, and 
 all Ofiicers, Judicial, Administrative, and Ministerial, ex- 
 isting therein at the Union, shall continue, in Ontario, 
 Quebec, Nova Scotia, and New Brunswick, respectively, 
 as if the Union had not been made ; subject nevertheless, 
 (except with respect to such as are enacted by or exist 
 under Acts of the Parliament of Great Britain or of the 
 Parliament of the United Kingdom of Great Britain and 
 Ireland), to be repealed, abolished, or ahered by the 
 Parliament of Canada, or by the Legislature of the respec- 
 tive Province, according to the Authority of the Parlia- 
 ment or of that Legislature under this Act. 
 
 Transfer of 130. Until the Parliament of Canada otherwise pro- 
 Canada. vides, all Officers of the several Provinces having Duties 
 to discharge in relation to Matters other than those com- 
 ing within the Classes of Subjects by this Act assigned 
 exclusively to the Legislatures of the Provinces, shall be 
 OfiEicers of Canada, and shall continue to discharge the 
 Duties of their respective Offices under the same Liabili- 
 ties, Responsibilities and Penalties, as if the Union had 
 not been made. 
 
 ment of " ^^^' ^"^^^ t^® Parliament of Canada otherwise provides, 
 
 new the Governor-General in Council may from Time to Time 
 
 officers 
 
 appoint such Officers as the Governor- General in Council 
 
 deems necessary or proper for the effectual Execution ol 
 
 this Act. 
 
 Treaty^ 132. The Parliament and Government of Canada shall 
 
 obligations. jj^yQ ^n Powers necessary or proper for performing the 
 
 Obligations of Canada or of any Province thereof, as Part 
 
BRITISH NORTH AMERICA ACT. 213 
 
 of the Britisli Empire, towards Foreign Countries, arising 
 under Treaties between tlie Empire and such Foreign 
 Countries. 
 
 133. Either the English or the French Language maylj^cof 
 be used by any Person in the Debates of the Houses of the ,u"f French 
 Parliament of Canada and of the Houses of the I^gisla- '^"»"^Kes. 
 ture of Quebec; and both those languages shall bo used 
 in the respective Records and Journals of those Houses ; 
 and either of those Languages may be used by any Person 
 or in any Pleading or Process in or issuing from any 
 Court of Canada established under this Act, and in or 
 from all or any of the Courts of Quebec. 
 
 The Acts of the Parliament of Canada and of the Legis- 
 lature of Quebec shall be printed and published in both 
 those Languages. 
 
 Ontario and Quebec, 
 
 134. Until the Legislature of Ontario or of Quebec Appoint 
 otherwise provides, the Lieutenant-Governors of Ontario "vecu?fve 
 and Quebec may each appoint under the Great Seal of ^^<'*^':^ ^"'•. 
 the Province, tlie following officers, to hold office during Quebec.**" 
 Pleasure, that is to say,— the Attorney-General, theSecre- 
 tary and Registrar of the Province, the Treasurer of the 
 Province, the Commissioner of Crown Lands and the 
 Commissioner of Agriculture and Public Works, and, in 
 the case of Quebec, the Solicitor-General, and may, by 
 Order of the Lieutenant-Governor in Council from Time 
 to Time prescribe the Duties of those Officers and of the 
 several Departments ever which they shall preside, or 
 to which they shall belong, and of the Officers and Clerks 
 thereof, and may also appoint other and additional Offi- 
 cers to hold Office during Pleasure, and may from Time 
 to Time prescribe the Duties of those Officers, and of the 
 several Departments over which they shall preside or to 
 which they shall belong, and of the Officers and Qerks 
 thereof. 
 
214 
 
 APPENDIX A. 
 
 Powers, 135. Until the Legislature of Ontario or Quebec other- 
 
 tfexecu-^" ^'^se provides, all Rights, Powers, Duties, Functions, Re- 
 tiveoflficers. sponsibilities, or Authorities at the passing of this Act 
 vested in or imposed on the Attorney-General, Solicitor- 
 General, Secretary and Registrar of the Province of 
 Canada, Minister of Finance, Commissioner of Crown 
 Lands, Commissioner of Public Works and Minister of 
 Agriculture and Receiver-General, by any Law, Statute 
 or Ordinance of Upper Canada, Lower Canada, or Canada, 
 and not repugnant to this Act, shall be vested in or im- 
 posed on any officer to be appointed by the Lieutenant • 
 Governor for the Discharge of the same or any of them , 
 and the Commissioner of Agriculture and Public Works 
 shall perform the Duties and Functions of the Office of 
 Minister of Agriculture at the passing of this Act imposed 
 by the Law of the Province of Canada as well as those of 
 the Commissioner of Public Works. 
 
 Great 
 Seals. 
 
 136. Until altered by the Lieutenant-Governor in Coun- 
 cil, the Great Seals of Ontario and Quebec respectively, 
 shall be tlie same or of the same Design, as those used in 
 the Provmces of Upper Canada and Lower Canada re- 
 spectively before their Union as the Province of Canada. 
 
 Construe- 137 The words " and from thence to the End of the 
 tion of , . r, • /. 1 T • 1 
 
 temporary then next ensuing Session of the Legislature, or words 
 
 ^^^' to the same effect used in any temporary Act of the Pro- 
 
 vince of Canada not expired before the Union, shall be 
 construed to extend and apply to the next Session of the 
 Parliament of Canada, if the subject-matter of the Act is 
 within the powers of the same as defined by this Act, or 
 to the next Sessions of the Legislatures of Ontario and 
 Quebec respectively, if the subject-matter of the Act is 
 within the powers of the same as defined by this Act. 
 
 As to errors 138. Prom and after the Union, the use of the words 
 m names, u Upper Canada '' instead of "Ontario," or •' Lower Canada '* 
 instead ot *• Quebec,' in any Deed, Writ, Process, Plead- 
 ing, Document, Matter 01 Thing, shall not invalidate the 
 same. 
 
BRITISH NORTH AMERICA ACT. 215 
 
 139. Any Proclamation under the Great Seal of the As to issue 
 Province of Canada^ issued before the Union, to take eflTect marfons*' 
 at a time which is oubsequent to the Union, whether re- before 
 lating to that Province or to Upper Canada, or to Lower commen(*o 
 Canada, and the several matters and things therein pro- unfon, 
 claimed, sliall be and continue of like force and effect as 
 if the Union had not been made. 
 
 140. Any Proclamation which is authorized by any Act As to issue 
 of the Legislature of the Province of Canada, to be issued ^atfons 
 under the Great Seal of the Province of Canada, wiiether ?/^?^ 
 relating to that Province or to Upper Canada, or to Lower 
 Canada, and which is not issued before the Union, may 
 be issued by the Lieutenant-Governor of Ontario or of 
 Quebec, as its subject-matter requires, under the Great 
 Seal thereof; and from and after the issue of such Procla- 
 mation, the same and the several matters and things 
 therein proclaimed, shall be and continue of the like force 
 and effect in Ontario or Quebec as if the Union had not 
 been made 
 
 141. The Penitentiary of the Province of Canada shall, Peniten- 
 until the Parliament of Canada otherwise provides, be ^^^^' 
 and continue the Penitentiary of Ontario and of Quebec. 
 
 142. The Division and Adjustment of the Debts, Credits, Arbitration 
 Liabilities, Properties and Assets of Upper Canada and debtsficf 
 Lower Canada shall be referred to the arbitrament of 
 Three Arbitrators, One chosen by the Government of 
 Ontario, One by the Government of Quebec, and One by 
 the Government of Canada; and the Selection of the Ar- 
 
 I bitrators shall not be made until the Parliament oi Canada 
 
 I and the Legislatures of Ontario and Quebec have met; 
 
 and the Arbitrator chosen by the Government of Canada 
 shall not be a resident either m Ontario or Quebec. 
 
 143. The Governor-General in Council may from Time Division of 
 to Time, order that such and so many of the Records, »"<2cords. 
 Books, and Documents ol the Province of Canada as lie 
 
216 APPENDIX A. 
 
 thinks fit shall be appropriated and delivered either to 
 Ontario or to Quebec, and the same shall thenceforth be 
 the prof)erty of that Province ; and any copy thereof or 
 extract therefrom, duly certified by the officer having 
 charge of the original thereof, shall be admitted as Evi- 
 dence. 
 
 tionllf^ 144. The Lieutenant-Governor of Quebec may from 
 townships Time to Time, by Proclamation under the Great Seal of 
 the Province, to take effect from a day to be appointed 
 therein, constitute Townships in those Parts of the Pro- 
 vince of Quebec in which Townships are not then already 
 constituted, and fix the Metes and Bounds thereof. 
 
 X. — INTERCOLONIAL RAILWAY. 
 
 Doty of 145. Inasmuch as the Provinces of Canada, Nova Scotia, 
 
 ment^and ^^^ New" Brunswick have joined in a Declaration that 
 
 Parliament i\^q Construction of the Intercolonial Railway -. essential 
 of Canada •' 
 
 to make to the Consolidation of the Union of British North Ameri- 
 h^reirr^ ca, and to the Assent thereto of Nova Scotia and New 
 described. Brunswick, and have consequently agreed that Provision 
 should be made for its immediate construction by the 
 Government of Canada : Therefore, in order to give ef- 
 fect to that Agreement, it shall be the Duty of the Gov- 
 ernment and Parliament of Canada to provide for the 
 Commencement, within Six Months after the Union, of 
 a Railway connecting the River St. Lawrence with the 
 City of Halifax in Nov a Scotia, and for the Construction 
 thereof without Intermission, and the Completion thereof 
 with all practicable Speed. 
 
 XI. — ADMISSION OF OTHER COLONIES. 
 
 Powers to 146. It shall be lawful for the Queen, by and with the 
 found!and,^dvice of Her Majesty's Most Honorable Privy Council, 
 Sie Union ^^ Addresses from the Houses of the Parliament of Can- 
 ada, and from the Houses of the respective Legislatures 
 of the Colonies or Provinces of Newfoundland, Prince 
 
BRITISH NORTH AMERICA ACT. glT 
 
 CoJon.es or Provinces, or any of then;, into the Union 
 
 Salt ;r-/r "'f ^^^""'^ ^^ ^^^ ^^m^ziz 
 
 ie..ns and Conditions m each Case as are in the Ad- 
 dresses expressed and as .he Queen thinks tit to anprovt 
 subject to the Provisions of this Act ; and the Pi^vS 
 
 JJr^j7 f ''T ^°^''^^ ^y »'•« i'arlianient of the 
 United Kingdom of Great Britain and Ireland 
 
 147. In case of the Admission of Newfoundland and a 
 
 enS to"%' ''''°' "' "'''''"' "'*'"^- -" ' Shan beRe- 
 Fonr M t ^''P^^^r'""""' '" "'^ Senate of Cana.ia, of ofA^" 
 ^ our Members, and (notvvithstanding anythin- in this ^'^/^'^'"^ 
 Ac ) in case of the Admission of Newfoundland the No 1"^"-"' 
 
 malrnrm^K^'f'^tT,^''^" "^ Seventy-siK ;nd the r iSl'» 
 maxmiumNninber shall be Eighty-.wo; but Prince Ed- 
 ward Is and when admitted, shall bo deemed to be com- 
 prised in the third of the Three Divisions into which 
 Canada is. in relation to the Constitution of tho Senate 
 
 of Pr nee Edward Island, whether Newfoundland is ad- 
 mitted or not the Representation of Nova Scotia and 
 New Brunswicj. m the Senate shall, as Vacancies occur 
 be re<Iuced from Twelve to Ten Members respecthei 
 and the Representation of each of those Provinces shall' 
 not be increased at any Time beyond Ten, except under 
 
 or\Z°'^uT °V^' ''''' '°' "'' Appointment of Three 
 or S^x additional Senators under the Direction of the 
 
 Queen. 
 
218 BRITISH NORTH AMERICA ACT. 
 
 SCHEDULES, 
 THE FIRST SCHED VLB, 
 
 ELECTORAL DISTRICTS OF ONIARfO. 
 
 A. 
 
 Existing Electoral Divisions, 
 
 COUNTIES 
 
 1. Prescott. 
 2 Glengarry. 
 
 3. Stormont. 
 
 4. Dundas. 
 
 5. Russell 
 
 6. Oarleton. 
 
 7- Prince Ecl\^ard. 
 
 8. Haiton. 
 
 9. Essex. 
 
 RIDINGS OF lOCNTIES, 
 
 10. North Riding of Lanark. 
 
 11. South Riding of Lanark. 
 
 12. North Riding of Leeds and North Riding of Gren- 
 
 villow 
 
 13. South Riding of Leeds. 
 
 14. South Riding of Grenville, 
 
 15. East Riding of Northumberland. 
 
 16. West Riding of Northumberland (excepting there- 
 
 from the Township of South Monaghan.) 
 
 17. East Riding of Durham. 
 
 18. West Riding of Durham. 
 
 19. North Riding ot Ontario. 
 
 20. South Riding of Ontario. 
 2L East Riding of Vork. 
 
 22. West Riding of Vork. 
 23« North Riding of York. 
 
 24. North Ruling of Wentworth, 
 
 25. Soutli Ridmg of Wentwortlu 
 
 26. East Riding of Elgin. 
 
SCHEDULES. 219 
 
 27. West Riding of Elcrin. 
 
 28. North Riding of Waterloo. 
 
 29. South Riding of Waterloo. 
 
 30. North Riding of Brant 
 
 31. South Riding of Brant. 
 
 32. North Riding of Oxford. 
 
 33. South Riding of Oxford. 
 
 34. East Riding of Middlesex. 
 
 CITIES, PARTS OF CITIES AND TOWNS. 
 
 35. West Toronto- 
 
 36. East Toronto. 
 
 37. Hamilton. 
 
 38. Ottawa. 
 
 39. Kingston. 
 
 40. London. 
 
 4L Town of Brockville, with the Township of Eliza- 
 bethtown thereto attached. 
 
 42. Town of Niagara, with the Township of Niagara 
 
 thereto attached. 
 
 43. Town of Cornwall, with the Township of Cornwall 
 
 thereto attached. 
 
 B, 
 
 NEW ELECTORAL DIVISIONS. 
 
 44. The Provisional Judicial District of Algoma. 
 
 The County of BKrcB, divided into two Ridings, to be 
 called respectively the North and South liRln-s 1 
 
 45. The North Riding of Bruce to consisi of the Town- 
 ships of Bury, Lindsay, Eastnor. Albemarle, Ama- 
 bel Arran Bruce. Eldershe, and Saugeen, and the 
 V illage of Southampton. 
 
 46. The South Riding of Bruce to consist of the Town- 
 ships of Kincardine (including the Viiiage of Kin- 
 cardine), Greenock, Brant, Huron, Kinloss, Cul- 
 ross. and Carrick. 
 
220 BRITISH NORTH AMERICA ACT. 
 
 The County of Huron, divided into Two Ridings to be 
 called respectively the North and South Ridmgs — 
 
 47. The North Riding to consist of the Townships of 
 
 Ash field, Wawanosh, Turnberry, Ho wick, Morris, 
 Grey, Colborne, Hullett (including the Village of 
 Clinton), and McKillop. 
 
 48. The South Riding to consist of the Town of Gode- 
 
 rich, and the townships of Goderich, Tuckersuiith. 
 Stanley, Hay, Usborne, and Stephen. 
 
 The County of Middlesex, divided into Three Ridings, 
 to be called respectively the North, West, and East 
 Ridings : — 
 
 49. The North Riding to consist of the Townships of 
 
 McGillivray and Biddnlph (taken from the County 
 of Huron), and Williams East, Williams West, 
 Adelaide and Lobo. 
 
 50. The West Riding to consist of the Townships of 
 Delaware, Caradoc, Metcalfe, Mosa and Ekfrid, 
 and the Village of Strathroy. 
 
 [The East Riding to consist of the Townships now em- 
 braced therein, and be bounded as it is at present.] 
 
 51. The County of Lambton to consist of the Townships 
 of Bosanquet, Warwick, Plyrnpton, Sarnia, Moore, 
 Enniskillen and Brooke, and the Town of Sarnia. 
 
 52. The County of Kent to consist of the Townships 
 of Chatham, Dover, East Tilbury, Romney, Ra- 
 leigh and Harwich, and the Town of Chatham. 
 
 53. The County of Bothwell, to consist of the Town- 
 
 ships of Sombra, Dawn and Euphemia (taken 
 from the County of Lambton), and the Town- 
 ships of Zone, Camden with the Gore thereof, 
 Orford and Howard (taken from the, county of 
 Kent). 
 
SCHEDULES. 221 
 
 The County of Grey, divided into Two Ridings, to be 
 called respectively the South and North Ridings : 
 
 54. The South Riding to consist of the Townships of 
 
 Bentinck, Glenelg, Artemesia, Osprey, Nor- 
 manby, Egremont, Proton and Melancthon. 
 
 55. The North Riding to consist of the Townships of 
 
 Collingwood, Euphrasia, Holland, St. Vincent. 
 Sydenham, Sullivan, Derby and Keppel, Sarawak 
 and Brooke, and the Town of Owen Sound. 
 
 The County of Perth, divided into Two Ridings, to be 
 called respectively the South and North Ridings.— 
 
 56. The North Riding to consist of the Townships of 
 
 Wallace, Elma, Logan, Ellice, Mornington,and 
 North Easthope, and the Town of Stratford. 
 
 57. The South Riding to consist of the Townships of 
 
 Blanchard, Downie, South Easthope, Fullarton, 
 Hibbert, and the Villages of Mitchell and Ste. 
 Marys. 
 
 The County of Wellington, divided into Three Rid- 
 ings, to be called respectively North, South and Centre 
 Ridings. 
 
 58. The North Riding to consist of the Townships of 
 
 Amaranth, Arthur, Luther, Minto, Maryborough, 
 Peel, and the Village of Mount Forest. 
 
 59. The Centre Riding to consist of the Townships of 
 
 Garafraxa, Erin, Eramosa, Nichol and Pilking- 
 ton, and the Villages of Fergus and Elora. 
 
 60. The South Riding to consist of the i'own of Guelph 
 
 and the Townships of Guelph and Puslinch. 
 
 The County of Norfolk, divided into Two Ridings, to 
 be called respectively the South and North Ridings — 
 
222 BRITISH NORTH AMERICA ACT. 
 
 61. The South Riding to consist of the Townships of 
 
 Charlotteville, Houghton, Walsingham and 
 Woodhouse, and with the Gore thereof. 
 
 62. The North Riding to consist of the Townships of 
 
 Middleton, Townsend and Windham, and the 
 Town of Simcoe. 
 
 63. The County of Hai-dimand to consist of the Town- 
 
 ships of Oneida, Seneca, Cayuga North, Cayuga 
 South, Rainham, Walpole and Dunn, 
 
 64. The County of Monck to consist of the Townships 
 
 of Canborough and Moulton, and Sherbrooke, 
 and the Village of Dunnville (taken from the 
 County of Haldimand), the Townships of Caister 
 and Gainsborough (taken from the County of 
 Lincoln), and the Townships of Pelham and 
 Wainfleet (taken from the County of Well and). 
 
 65. The County of Lincoln to consist of the Townships 
 
 of Clinton, Grantham, Grimsby and Louth, and 
 the Town of St. Catharines. 
 
 66. The County of Welland to consist of the Townships 
 
 of Bertie, Crowland, Humberstone, Stamford, 
 Thorold and Willoughby, and the Villages of Chip- 
 pewa, Clifton, Fort Erie, Thorold and Welland. 
 
 67. The ODunty of Peel to consist of the Townships of 
 
 Chinguacousy, Toronto and the Gore of Toronto, 
 and the Villages of Brampton and Streets ville. 
 
 68. The County of Card well to consist of the Town- 
 
 ships of Albion and Caledon (taken from the 
 County of Peel), and the Townships of Adjala 
 and Mono (taken from the County of Simcoe). 
 
 The County of Simcoe, divided into Two Ridings, to be 
 called respectively the South and the North Ridings: — 
 
SCHEDULES. 223 
 
 89. The South Riding to consist of the Townships of 
 West Gwillimbury, Tecumseth, Innisfil, Essa, 
 Tossorontio, Mulmur, and the Village of Bradford. 
 
 70. The North Riding to consist of the Townships of 
 
 Nottawasaga, Sunnidale, Vespra, Flos, Oro, Me- 
 donte, Orillia and Matchedash, Tiny and Tay, 
 Balaklava and Robinson, and the Towns of Bar- 
 rio and Collingwood. 
 
 The County of Victoria, divided into Two Ridings, to 
 be called respectively the South and North Ridings ;— 
 
 71. The South Riding to onsist of the Townships of 
 
 Ope, Mariposa, Emily, Verulam, and the Town 
 of Lindsay, 
 
 72 The North Riding to consist of the Townships of 
 Anson, Bexley, Garden, Dalton, Digby, Eldon, 
 Fenelon, Hindon, Laxton, Lutterworth, Macau- 
 lay and Draper, Sommerville and Morrison, 
 Muskoka, Monck and Watt (taken from the 
 County of Simcoe), and any other surveyed 
 Township lying to the North of the said North 
 Riding. 
 
 The County of Peterborough, divided into Two Rid- 
 ings, to be called respectively the West and East Ridings: 
 
 73. The West Riding to consist of the Townships of 
 South Monaghan (taken from the County of 
 Northumberland), North Monaghan, Smith and 
 Ennismore, and the Town of Peterborough. 
 
 r4. The East Riding to consist of the Townships of 
 Asphodel, Belmont and Methuen, Douro, Dum- 
 mer, Gaiway, Harvey, Minden, Stanhope and 
 Dysart, Otonabee and Snowden, and the Village 
 of Ashburnham, and any other surveyed Town- 
 ships lying to the North of the said East Riding. 
 
224 BRITISH NORTH AMERICA ACT. 
 
 The County of Hastings, divided into Three Ridings, 
 to be called Respectively the West, East, and North Rid- 
 ings : — 
 
 75. The West Riding to consist of the Town of Belle- 
 
 ville, the Township of Sydney, and the Village 
 of Trenton. 
 
 76. The East Riding to consist of the Townships of 
 
 Thurlow, Tyendinaga and Hungerford. 
 
 77. The North Riding to consist of the Townships of 
 
 Rawdon, Huntingdon, Madoc, Elzevir, Tudor, 
 Marmora and Lake, and the Village of Stirling, 
 and any other surveyed Townships lying to the 
 North of the said North Riding. 
 
 78. The County of Lennox to consist of the Townships 
 
 of Richmond, Adolphustown, North Fredericks- 
 burgh, South Fredericksburgh, Ernest Town 
 and Amherst Island, and the Village of Na- 
 panee. 
 
 79. The County of Addington to consist of the Town- 
 
 ships of Camden, Portland, Sheffield, Hinchin- 
 brooke, Kaladar, Kennebec, Olden, Oso, Angle- 
 sea, Barrie, Clarendon, Palmers ton, Effingham, 
 Abinger, Miller, Canonto, Denbigh, Lough- 
 borough and Bedford. 
 
 80. The County of Frontenac to consist of the Town- 
 
 ships of Kingston, AVolfe Island, Pittsburgh and 
 Howe Island and Storrington. 
 
 The County of Renfrew, divided into Two Ridings, to 
 be called respectively the South and North Ridings : — 
 
 SI, The South Riding to consist of the Townships of 
 McNab, Bagot, Blythfield, Brougham, Horton, 
 Adamston, Grattan, Matawatchan, Griffith, Lyn- 
 doch, Raglan, Radcliflfe, Brudenell, Sebastapoli 
 and the Villages of Arnprior and Renfrew. 
 
SCHEDULES. 225 
 
 82. The North Riding to consist of the Townships of 
 Ross, Bromley, Westmeatli, Stafford, Pembroke, 
 Wilberforce, Alice, Petawawa, Buchanan, South 
 Algona, North Algona, Eraser, McKay, Wylie, 
 Rolph, Head, Maria, Clara, Haggerty, Sherwood] 
 Burns, and Richards and any other surveyed 
 Townships lying North-westerly of the said 
 North Riding. 
 
 Every Town and incorporated Village existing at the 
 Union, not specially mentioned in this Schedule, is to be 
 taken as part of the County or Riding within which it is 
 locally situate. 
 
 THE SECOND SCHEDULE. 
 ELECTORAL DISTRICTS OF QUEBEC SPECIALLY FIXED. 
 
 COUNTIES OF 
 
 Pontiac. 
 
 Ottawa. 
 
 Argenteuil. 
 
 Huntingdon. 
 
 Missisquoi. 
 
 Shefford. 
 
 Stanstead. 
 
 Compton. 
 
 Wolfe and Richmond. 
 Megan tic. 
 
 ^^ome. ) Town of Sherbrooke. 
 
 THE THIRD SCHEDULE. 
 
 PEOVINCL^L PUBLIC WORKS AND PROPERTY TO BE THE 
 PROPERTY OF CANADA. 
 
 1. Canals with Lands and Water Power connected 
 
 therewith. 
 
 2. Public Harbours. 
 
 3. Lighthouses and Piers, and Sable Island. 
 
 4. Steamboats, Dredges, and Public Vessels. 
 
 5. Rivers and Lake Improvements. 
 
 15 
 
226 BRITISH NORTH AMERICA ACT. 
 
 6. Railways and Railway Stocks, Mortgages, and other 
 
 Debts due by Railway Companies. 
 
 7. Military Roads. 
 
 8. Custom Houses, Post Offices, and all other Public 
 
 Buildings, except such as the Government of Can- 
 ada appropriate for the Use of the Provincial Legis- 
 latures and Governments. 
 
 9. Property transferred by the Imperial Government, 
 
 and known as Ordnance Property. 
 
 10. Armouries, Drill Sheds, Military Clothing and Muni- 
 tions of War, and Lands set apart for General Pub- 
 lic Purposes. 
 
 . Lower Canada. 
 
 THE FOURl-H SCHEDULE. 
 
 Assets to he the Property of Ontario and Quebec conjointly. 
 
 Upper Canada Building Fund. 
 
 Lunatic Asylums. 
 
 Kormal Schools. 
 
 Court Houses in : 
 
 Aylmer. 
 
 Montreal. 
 
 Kamouraska. 
 
 Law Society, Upper Canada. 
 
 Montreal Turnpike Trust. 
 
 University Permanent Fund. 
 
 Royal Institution. 
 
 Consolidated Municipal Loan Fund, Upper Canada. 
 
 Consolidated Municipal Loan Fund, Lower Canada. 
 
 Agricultural Society, Upi:)er Canada. 
 
 Lower Canada Legislative Grant. 
 
 Quebec Fire Loan. 
 
 Temiscouata Advance Account. 
 
 Quebec Turnpike Trust. 
 

 SCHEDULE& 227 
 
 Education, East. 
 
 Building and Jury Fund, Lower Canada. 
 
 Municipalities Fund. 
 
 Lower Canada Superior Education Income Fund. 
 
 THE FIFTH SCHEDULE. 
 
 OATH OF ALLEGIANCE. 
 
 I, ^. B., do swear that I will be faithful and bear true 
 Allegiance to Her Majosty Queen Victoria. 
 
 »?/!7"~^\'^'""r/'^t^"'^°'' ^"^«»°/'''« United Kingclomof Great 
 flTl Z ^'•^'""^y^'- '^^ ^-* ^^na U to le sumt^Ued from Time to 
 Tin e, xcxth proper Tenm o/ Reference thereto, 
 
 DECLARATION OF QUALIFICATION. 
 
 I, A B., do declare and testify. That I am by Law duly 
 qualified to be appointed a Member of the Senate of Canada 
 [or as the case may be], and that I am legally or equitably 
 seized as of Freehold for my own Use and Benefit of Lands 
 or Tenements held in Free and Common Socage [or seized 
 or possessed for my own Use and Benefit of Lands or 
 Tenements held in Franc-alleu or in Roture (as the case 
 may 6^] m the Province of Nova Scotia [or as the case may 
 he] of the Value of Four Thousand Dollars over or above 
 all Rents, Dues, Debts, Mortgages, Charges, and Incum- 
 brances, due and payable out of or charged on or afiecting 
 the same, and that I have not collusively or colourably 
 obtained a title to or become possessed of the said LandB 
 and Tenements or any Part thereof for the Purpose of 
 enabhng me to become a Member of the Senate of Canada 
 ^r as the case may be], and that my Eeal and Personal 
 Property are together worth Four thousand Dollars over 
 and above my Debts and Liabilitiea 
 
APPENDIX B. 
 
 34 AND 35 VICTORIA. 
 
 CHAP. XXVIII. 
 
 An Act respecting the establishment of Provinces in the DomiU" 
 
 ion of Canada, 
 
 [29th June, 1871.J 
 
 WHEREAS doubts have been entertained respecting 
 the powers of the Parliament of Canada to estabHsii 
 Provinces in Territories admitted, or which may hereafter 
 be admitted into the Dominion of Canada, and to provide 
 for the representation of such Provinces in the said Par- 
 liament, and it is expedient to remove sucii doubts, and 
 to vest such powers in the said Parliament : — 
 
 Be it enacted by the Queen's most excellent Majesty, 
 by and with the advice and consent of the Lords Spiritual 
 and Temporal and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : 
 
 Short Title. 1. This Act may be cited for all purposes as " The Brit- 
 ish North America Act, 1871.'' 
 
 Parliament 2. The Parliament of Canada may from Time to Time 
 otCanadii establish new Provinces in any Territories forming for 
 
 may estab- , ^ o 
 
 lish new the time ueing part of the Dominion of Canada, but not 
 and^mMde ^^^^^^^^ ^^^ ^^Y ProvUico thereof, and may;at the time of 
 lKntS**^^"~such establishment, make provision for the constitution 
 Acthereof. and administration of any such Provmce, and for the pas- 
 
ESTABLISHMENT OF PROVINCES. 229 
 
 sing of laws for the peace, order, and good government of 
 such Province, and for its representation in the said 
 Parliament. 
 
 3. The Parliament of Canada may from Time to Time, Alteration 
 with the consent of the Legislature of any Province of the Provinces? 
 said Dominion, increase, diminish, or otherwise alter the 
 
 limits of such Province, upon such terms and conditions 
 as may be agreed to by the said Legislature, and may, 
 with the like consent, make provision respecting the efifoct 
 and operationof any such increase or diminution or alter- 
 ation of Territory in relation to any Province affected 
 thereby. 
 
 Parliament 
 
 4. The Parliament of Canada may from Time to Time ;;[a^>;;^^*. 
 make provision for the administration, peace, order, and j^:j|e for^^ 
 
 good government of any Territory not for the time being tory n t in- 
 t J 1 • T> • eluded in a 
 
 incluaed m any Provmce. Province. 
 
 5. The following Acts passed by the said Parliament of ^^onfi^rma- 
 Canada, and intitulea respectively : "An Act for the tern- Actsof Par- 
 " porary government of Rupert's Land and tlie North Wes- Ca^*d!i, 32 
 "tern Territory when united with Canada," and *' ^^^ (ofnajj Jn) 
 "Act to amend and continue the Act tliirty-two and cap. 3, :« V, 
 " thirty-three Victoria, chapter three, and to establish cap?! '^° ** 
 " and provide for the government of the Province of Mani- 
 
 *' toba," shall be and be deemed to have been valid and 
 effectual for all purposes whatsoever from the date at 
 which they respectively received the assent, in the 
 Queen's name, of the Governor-General of the said Domi- 
 nion of Canada. 
 
 6. Except as provided by the third section of this Act, Limitation 
 i t shall not be competent for the Parliament of Canada to of ¥*arlia- 
 alter the provisions of the last mentionetl Act of the said [f^ /,ad?ao 
 Parliament, in so far as it relates to the Province of Mani- legislate 
 
 oba, or of any other Act hereafter establishing new Pro- established 
 vinces in the said Dominion, Fubject always to the right ^^^^"<^® 
 of the Legislature of the Province of Manitoba to alter 
 
230 
 
 APPENDIX B. 
 
 from Time to Time the provisions of any law respecting 
 the qualification of electors and members of the Legisla- 
 tive Assembly, and to make laws respecting elections in 
 the said Province. 
 
APPENDIX C. 
 38-39 VICTORIA. 
 
 CHAP. XXXYIII. 
 
 An Act to remove certain doubts with respect to the powers of 
 
 the Parliament oj Canada under Section Eighteen of the 
 
 British North America Act, 1867. 
 
 \mh. July, 1875J 
 
 WHEREAS by Section Eighteen of the British North 30 and 31 
 America Act, 1867, it is provided as follows : — Vict., c. 3» 
 
 " The privileges, immunities and powers to be held, 
 *' enjoyed ?.nd exercised by the Senate and by the House 
 " of Commons, and by the Members thereof respectively, 
 *• shall be such as are from time to time defined by Act of 
 ** the Parliament of Canada, but so that the same shall 
 " never exceed those at the passing of this Act, held, en- 
 ** joyed and exercised by the Commons House of Par- 
 " liament of the United Kingdom of Great Britain and 
 " Ireland and by the members thereof." 
 
 And whereas doubts have arisen with regard to the 
 power of defining by an Act of the Parliament of Canada, 
 in pursuance of the said section, the said privileges, 
 powers, or immunities: and it is expedient to remove 
 such doubts: 
 
 Be it, therefore, enacted by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the 
 
232 APPENDIX C. 
 
 Lords, Spiritual and Temporal, and Commons, in this 
 present Parliament assembled, and by the authority of 
 the same, as follows : — 
 
 Substltu- 1. Section Eighteen of the British North America Act, 
 Section f 0^1 ^^7» is hereby repealed without prejudice to anything 
 of 'soTsi ^^^^ under that section, and the following section shall 
 Vict., c. 3. be substituted for the section so repealed. 
 
 The privileges, immunities and powers to be held, en- 
 joyed and exercised by the Senate and by the House of 
 Commons, and by the Members thereof, respectively, 
 shall be such as are from time to time defined by Act of 
 the Parliament of Canada, but so that any Act of the 
 Parliament of Canada defining such privileges, im- 
 munities ard powers shall not confer any privileses, im- 
 munities or power exceeding those at the jiassing of such 
 Act, held, enjoyed and exercised by the Commons House 
 of Parliament of the United Kingdom of Great Britain 
 and Ireland and by the Members thereof. 
 
 Confirma- ^' ^^^ -^^^ ^^ ^^^ Parliament of Canada passed in the 
 
 tion of Act thirty-first year of the Reign of Her present Majesty, 
 
 dianPar- chapter twenty-four, intituled "An Act to provide for 
 
 hament. Q^ths to witnesses being administered in certain cases 
 
 for the purposes of either House of Parliament " shall be 
 
 deemed to be valid, and to have been valid as from the 
 
 date at which the Royal assent was given thereto by the 
 
 Governor-General of the Dominion of Canada. 
 
 3. This Act may be cited as " The Parliament of Can- 
 ^•'""^■'•ada Act, 1875." 
 
INDEX . 
 
 Agriculture, Department of, 71. 
 
 Agriculture, concurrent powers of 
 parliament and legislatures respect- 
 ively, 118. 
 
 Annapolis ; formerly Port Royal ; 
 seat of government until 1749, 97 n. 
 
 Appendix to this work ; British North 
 America Act (1867) ; an act respect- 
 ing the establishment of provinces 
 in the dominion of Canada (34-35 
 Vict., c. 28) ; an act to remove 
 doubts with respect to the powers 
 of the parliament of Canada under 
 g. 18 of the B. N. A. Act (38-39 
 Vict., c 38). 
 
 Blaee, Hon, Mr. ; obtains modifica- 
 tions in letters patent and instruc- 
 tions to governor-general, 66 n. 
 
 Boundary Award ; the character of 
 the controversy between Ontario 
 and the Dominion ; decision of the 
 privy council, 156-158. 
 
 British Columbia, 
 British, 
 
 See Columbia 
 
 British North America Act,18ff7.— 
 (Appendix A of this worl: ; follow- 
 ing figures refer to sections of the 
 Act :) Preliminary, 1-2 ; union, 
 3-8 ; executive power, 9-16 ; consti- 
 tution of parliament, 17-20 ; of the 
 senate, 21-% ; of the house of 
 commons, 37-52 ; money votes, 53- 
 54 ; royal assent and disallowance 
 ana reservation of bills, 55-57. 
 Provincial constitutions : Execu- 
 tive power, 58-68 ; legislative pow- 
 er, in Ontario, 60-70 ; in Quebec, 
 71-80; legislatures of Ontario and 
 Quebec, summoned, continuance of 
 election laws, etc.. 81-87 ; constitu- 
 tions of Nova Scotia and New 
 Brunswick, 88 ; first elections in 
 
 British North Am. Act—C(mtinued. 
 
 {)rovinces, 89 ; application to legls- 
 atures of provisions respecting 
 money votes, etc. , 90. Distribution 
 of legislative powers : Of parlia- 
 ment, 91 ; of provincial legisla- 
 tures, 92 ; education, 93. Unifor- 
 mity of laws in Ontario, Nova Sco- 
 tia and New Brunswick, 94. Agri- 
 culture and immigration, 95. Judi- 
 cature, 96-101. Revenues, debts, 
 assets, taxation, 102-12o. Miscel- 
 laneous provisions: As to legisla- 
 tive councillors of provinces be- 
 coming senat()rs,127; oath ot allegi- 
 ance, how administered, 128 ; con- 
 tinuance of existing laws, courts, 
 officers, etc., 129 ; transfer of offi- 
 cers to Canada, 1-30; appointment 
 of new officers, 131 ; treaty obliga- 
 tions, 132; use of English and 
 French languages, 133; appoint- 
 ment of executive officers for On- 
 tario and Quebec. 134; powers and 
 duties of executive ofticers, 135 : 
 great seals, 136 ; construction of 
 temporary acts, 137 ; as to errors in 
 names, 138 ; as to issue of procla- 
 mations before union, to commence 
 after union, 139 ; as to issue of prq- 
 clamatiuns after union, 140 ; peni- 
 tentiary, 141 ; arbitration respect- 
 ing debts, 142: division of records, 
 143 : constitution of townships m 
 Quebec, 144. Intercolonial rail- 
 way, 14-5. Admission of other colo- 
 nies, 1-16-147. Schodules: I. Elec- 
 toral districts of Ontario , II. Elec- 
 toral districts of Quebec ; III. 
 Provincial public works and pro- 
 
 ferty to be the property of Canada : 
 v. Assets to bo the property of 
 Ontario and Quebec conjointly ; V. 
 Oath of allegiance and declaration 
 of qualification. Acts in amend- 
 ment thereof, 34-35 Vict., c. 28 ; 
 38-39 Vict., c. 38. 
 
234 
 
 INDEX. 
 
 Cape Breton ; ceded to Great Bri- 
 tain ; under goYemment of Nova 
 Scotia, 96, n, 
 
 Capitulation of Canada; terms of in 
 1760,7. 
 
 Censas of Canada ; in 1760-'90, 18 n ; 
 in 1839-44, 50 n / in 1881, 86 n. 
 
 Chatham, Earl of ; opposes Quebec 
 Act, 13. 
 
 Civil Code ; in province of Quebec, 
 170. 
 
 Gvil List ; control of, 33, 45, 
 
 Civil Service ; legislation respecting, 
 43-45. 
 
 Clergy Reserves ; their origin, 23 ; 
 question settled, 41-42. 
 
 Colborne, Sir John ; administrator, 
 30; establishes rectories, 42. 
 
 Colonies of Canada ; responsible gov- 
 ernment in, 36-40. 
 
 Columbia, British ; admission of, 60; 
 ronstituiion of local legislature, 
 101-102. 
 
 Common Law of England ; in use in 
 Canada, 171. 
 
 Commons, House of ; its constitution, 
 75 ; representation therein, 81-8(> ; 
 franchise for elections, 85, 87; 
 powers and privileges under Brit- 
 ish Morth America Act (see ss. ^^7- 
 62 B. N . A. A^'t, 18(37, app. to this 
 work) ; use of the French language 
 therein, 1 b. s. 133. 
 
 Confe deration of Canada; brief his- 
 tory of its origin, 52-61. 
 
 Congress, American ; declares against 
 Quebec Act, 13 n. 
 
 Consolidated Fund; charges on, 36 
 (Union Act, 1840) 88 (B.N. A. Act, 
 
 mi). 
 
 Constitution of the United States; 
 eomjinred with that of Canada, 
 11>116. 
 
 Constitutional Act, 1790 : provinces of 
 Upper and Lower Canada, e-tab- 
 lishcd by its provisiors, 17-25; 
 history of its operation, 25-29 ; sus- 
 
 Constitutional Act— Coniinucc?. 
 
 gension of constitution in Lower 
 anada, 29. 
 
 Controller of Customs, 74. 
 
 Controverted Elections Act ; judicial 
 decisions on questions of jurisdic- 
 tion respecting, 121-122. 
 
 County judges; their appointment 
 and removal, 172 n. 
 
 Coutume de Paris ; in use in French 
 Canada, 4; basis of civil law in 
 province of Quebec, 170 n. 
 
 Criminal laws; in the jurisdiction 
 of the parliament of Canada, 171. 
 
 Customs, Department of ; 71-74. 
 
 Crown, the ; represented by the 
 governor-general , 64 ; recommend- 
 ation as to votes of money (see 
 sec. 15i of B.N.A. Act, app. A to 
 this work). 
 
 De Grey, Solicitor General ; his 
 opinion m 1763 on rights of French 
 Canadians, 11 n- 
 
 Deputy- Governor, See Governor' 
 General* 
 
 Disallowance ; of provincial acts, 
 K 8-113 ; powers and responsibilities 
 of dominion government in this 
 respect, 114, 
 
 Distribution of legislative powers; 
 between general parliament and 
 local legislatures, 116-118. 
 
 Dominion ; origin of name, 63 n. 
 
 Double majority system; an ex- 
 pedient to arrange political con- 
 flicts between Upper and Lower 
 Canada, 51-52. 
 
 Dufferin, Lord; Governor-General of 
 Canada, 65 n. 
 
 Durham, Lord ; Governor-General of 
 Canada and High Commissioner, 
 30 ; his report on Canada, 32 ; re- 
 commends legislative union, 33; 
 establishment of a supreme court, 
 119 n. 
 
 Education ; exclusive powers of 
 
 provincial legislatures 
 
 pow 
 ,U7. 
 
INDEX, 
 
 235 
 
 Elections ; acts respecting, 85-87. 
 
 Escheats ; decision of privy council 
 respecting, 147-151. 
 
 Federalist, The. Sec Hamilton, A. 
 
 Federal union of the provinces ; con- 
 ference at Charlottetown, 54; at 
 Quebec in 1864, 54 ; passed by 
 provinces, 55-57 : passage of act ot' 
 union (see B.N.A. Act, 1867, app. 
 A) by Imperial Parliament, 56 ; 
 meeting of first parliament of 
 Canada, 57 ; acquisition of N.W.T., 
 57-60 : establishment of Manitoba, 
 59; admission of British Columbia, 
 60; rf p. E. Island, 60. Con- 
 stitution of the general govern- 
 ment and parliament, 63-89 ; of 
 the provincial government?, 9''- 
 107 ; distribution of legislative 
 powers, 115-119. 
 
 Fishery licenses and leases ; judicial 
 decision tLereon, 132-134. 
 
 Fox, Mr. ; favours a representative 
 assembly in 1774,14 u ; an elective 
 legislative council, 21 n. 
 
 Franchise Act ; passed by the do- 
 minion parliament for elections of 
 members of the Commons, 85, 87. 
 
 French language ; use of in the 
 legislature restricted by union jict, 
 1840 ; repeal of objectionable 
 clause, 47 ; used in law records 
 and journals of Canadian Parlia- 
 ment, occ 133, li.N.A. Act, app. A 
 to this work. 
 
 Geological Scbvet of Canada ; pro- 
 vided for, 73. 
 
 Governor-General : office of, 64 : 
 how appointed, 64 : appointment of 
 administrator in his absence. 67 ; 
 may be removed at any time, 67 rt ; 
 his salary, 88; advised by a privy 
 council, 68 ; opens and prorogues 
 parliament, 75; assents to or re- 
 serves^biUs, 75; dissolves parlia- 
 ment» 75-o ; appoints and removes 
 lieut-governor, with advice of h s 
 council, 90-91; deputy-governor, 66. 
 
 Gosford, Lord ; Governor-General of 
 Canada, 30. 
 
 Great Seal ; Governor-General ap- 
 pointed under, 64. 
 
 Halifax ; founded, 97 n. 
 
 Hamilton, Alexander ; his remarks 
 in the Fedendixt on the value of a 
 supreme court, 170 n. 
 
 House of Commons. See Commont 
 
 Howe, J. : his remarks on the ir- 
 responsibility of the executive in 
 Nova Scotia, 27 n. 
 
 Indemnity to members of Parlia- 
 ment, 85 n. 
 
 Independence of Parliament ; acts 
 
 respecting, 88. 
 
 Indian aflFairs ; department of, 73. 
 
 Indian titles : judicial decisions re- 
 specting, 151-155. 
 
 Inland Revenue, department of ; 
 71,74. 
 
 Instructions royal ; to Governor- 
 General, 65*67. 
 
 Insurance: judicial decisions on 
 question of juritdiction respecting, 
 123-128. 
 
 Intendant ; functions of, in French 
 Canada, 2-3. 
 
 Interior, department of ; formed, 73. 
 
 Interpretation of B.N.A. Act. 1867; 
 rules laid down respecting, 159-163. 
 
 Judges. See County Judges and 
 Judiciary. 
 
 Judiciary ; establishment of Supreme 
 Court of Cana'i;i, 119 ; decision.^ on 
 questions of It eislative jurisdiction: 
 Controverted Elections Act of 1S74, 
 121 ; Ontario License Act, 13<J : 
 Policies (»f insurance, 123; lit:heries 
 Act of lS<i8, 1 '2 ; Canadi Temper- 
 ance Acr, )36 ; Duninion Liquor 
 Lic»*nse Act. 140 : Indian Titles 
 to Lands, 151 ; rule^ laid down for 
 constructiuu of B.X.A Act, 15'J : 
 value of a supre > e court under u 
 federal system. 17) n : private bills 
 referred to that court by senate, 
 168 n ; bow appointed, 171: inde- 
 pendence of the judiciary, 171-172 ; 
 salaries permanently charged on 
 the civil list, 172: hold office^ 
 during good behaviour, 172 ; only 
 
236 
 
 INDEX. 
 
 JuDiciABY— Contintterf. 
 
 removed on address of two houses, 
 172 , county court judges removed 
 for sufficient cause by governor- 
 general, 172 n. 
 
 Justice ; department of, 71-74. 
 
 Justices of the peace ; how appoint- 
 ed, 171 n. 
 
 Keewatin; creation of provisional 
 district of, 104. 
 
 Land Question in P. Edw. Island ; 
 settled at entrance of island into 
 confederation, 100. 
 
 Legislative Council ; of Canada 
 (under Quebec Act), H : Upper 
 Canada, 21 ; Lower Canada, 241 ; 
 province of Canada (after 1840), 
 35 ; Quebec (after 1867), 94 ; Nova 
 Scotia, 98 ; New Brunswick, 99 ; 
 Prince Edward Island, 100 ; abol- 
 ished in Ontario, 93 ; in Manitoba, 
 101 ; in British Columbia, 102 ; its 
 relations with the old assemblies, 
 25-27. 
 
 Legislative powers ; distribution of. 
 See Chapter XI' 
 
 Letellier de St. Just ; dismissed from 
 the lieut.-governorship of Quebec, 
 
 91 7i. 
 
 License Acts respecting sale of in- 
 toxicating liquors: decisions of 
 Supreme Court of Canada re- 
 specting an Ontario Act, 130; Do- 
 minion Act for issue of licenses, 
 189, 146 ; Liquor License Act of On- 
 tario, 139 146. 
 
 Lieutenant-Governor ; before union 
 ot 1840 in Canada, 67 ; of each pro- 
 vince since Confederation, 90; may 
 be dismissed by governor- general 
 in council, 90 ; assembles and pro- 
 rogues legislature, etc., 92-93. 
 
 Lome, Marquis of ; governor-general 
 of Canada , his remarks on consti- 
 tution of Canada, 176 n. 
 
 Loyalists, U. E. ; immigration into 
 Canada, 17-18. 
 
 Macdonald, Sir John ; in charge of 
 clergy reserves bill, 42 n ; member 
 of Quebec conference, 55 n ; pre- 
 sents confederation resolutions in 
 
 Macdonald, Sir John— Conemucd. 
 
 legislative assembly, 55 n ,* his 
 opinions on constitutional and par- 
 liamentary questions, 63 n ; 70 n ; 
 109 n; 114n; 158 n. 
 
 Macdonnell, W. ; first speaker of 
 legislative assembly of Upper 
 Canada, 24 n. 
 
 Macpherson, Mr. Speaker; held seat 
 in cabinet, 72 n. 
 
 Manitoba ; establishment of pro- 
 vince, 59 ; meeting of first legisla- 
 ture, 60 ; representatives take seats 
 in parliament, 60 : constitution of 
 local legislature, 101 ; disallowance 
 of certain acts of, 112-113. 
 
 Marine and Fisheries : department 
 of, 71, 74. 
 
 Members of the Commons ; number, 
 86 ; election, 85 ; indemnity, 85 n. 
 
 Military councils ; established in 
 Canada, 8. 
 
 Military government in Canada: 
 established from 1760-1763, 8. 
 
 Militia ; department of, 71. 
 
 Ministers : members of the privy 
 council, 69. 
 
 Monck, Lord ; first governor-general 
 of the Dominion, 57 n. 
 
 Navigation Laws ; repealed, 47. 
 
 Newark (Niagara) ; legislature of 
 Upper Canada first assembles at, 
 24, 25 n. 
 
 New Brunswick ; first formed into a 
 province, 98 ; came into confedera- 
 tion, 57 ; local legislature of, 98-99. 
 
 Newfoundland ; refused to enter into 
 confederation, 61 ; representation 
 in Senate in case of admission. See 
 B. N. A. Actf 8. 147, app. A to this 
 xoork, 
 
 Niagara. See Newark. 
 
 North-West Territory ; acquisition 
 of, 57 ; insurrection in Red River, 
 59 ; establishment of province of 
 Manitoba, 59-^0 ; imperial order in 
 council placing all British North 
 
JSDEX. 
 
 237 
 
 North-West Territory— Confmxet/. 
 
 America, except Newfoundlaml. 
 under control of Canada, 61 ; go\ - 
 ernment of, 103 : creatitMi of provi- 
 sional district of Keewatin, 104 ; 
 imperial legislation to removo 
 doubts as to power of Canadian 
 parliament to legislate with respect 
 to new provinces in territories, 105 ; 
 representation of North-West Ter- 
 ritories in parliament, 86. 
 
 Nova Scotia ; constitution of local 
 legislature of, 96 98 ; enters into 
 confederation, 55-57. 
 
 Oath ; taken by the governor-gene- 
 ral, 65 ; by lieut.-goveruors, 91. 
 
 Ontario ; constitution of province of, 
 93 ; boundary of, 156-158. 
 
 Ontario Liquor License Act ; judicial 
 opinions thereon, 139-146. 
 
 Osgoode, Hon. W. ; first speaker of 
 legislative council in Upper Cana- 
 da, 24 71, 
 
 Ottawa; chosen as seat of govern- 
 ment of Canada, 35 /i, 
 
 Panet, J. A. ; Speaker of Lower 
 Canada Assembly in 1792, 24 n. 
 
 Parliament of Canada ; constitution 
 of » 75 ; duration of, 82 ; control 
 over revenues and duties, 88 ; 
 first meeting in the Dominion, 57; 
 Manitoba representatives take seats 
 in, 59 ; British Columbia represen- 
 tatives, 60; P. E. Island represen- 
 tatives, 61 ; N. W. T. representa- 
 tives, 85-86 ; imperial legislation to 
 remove doubts as to its power to 
 legislate with respect to new pro- 
 vinces in the territories, 105; its 
 legislative jurisdiction, 116-118, 
 
 Police Magistrates ; how appointed, 
 171 n. 
 
 Postmaster General ; department of, 
 71. 
 
 President of the Privy Council ; 71, 
 
 Prince Edward Island ; constitution 
 of province of. 99-101; admission 
 into the Confederation, 60. 
 
 Privileges and Powers of Parlia- 
 ment. See appendix C. to thi» 
 
 Privileges, etc. — Continued. 
 
 work, *' The Parliament of Canada 
 Act, 1875." 
 
 Proclamation of 1763 ; issued by 
 George HI., 8, 9 n. 
 
 Property qualification ; required for 
 senators ; declaration respecting,? 9, 
 
 Privy Council of Canada ; appointed 
 to aid and advise the Governor- 
 General, 63 ; origin of namOi 68-69 ; 
 the ministry, 69-71. 
 
 Privy Council, judicial committee 
 of; their decisions on questions of 
 legislative jurisdiction. See Chap' 
 tera XI l, XHL 
 
 Public Printing and Stationery ; de- 
 partment of, formed, 73. 
 
 Public Works ; department of, 73, 
 
 Quebec Act, 1774 ; parliament inter- 
 venes in Canadian affairs and 
 passes act, 12 ; its details, 14-16. 
 
 Quebec Conference ; resolutions for 
 Confederation of Canada passed 
 at, 54. 
 
 Quebec ; constitution of province of i 
 94-96. 
 
 Quorum ; in the old legislature of 
 Canada, 35, 36 ; in province of Can- 
 ada, etc. See 8S. of the BN.A. 
 Act, app. A. to this work, 35, 48, 78, 
 87. 
 
 Rupert's Land ; acquired by the Do- 
 minion, 59, 62. 
 
 Railways and Canals ; department 
 of, 73. 
 
 Rebellion of l<?37-'38 ; its origin, 25- 
 29 ; suspension of constitution of 
 Lower Canada, 30 ; arrival of Lord 
 Durham, 30 ; his ordinance of 1838, 
 31. 
 
 Receiver generalship ; abolished, 73. 
 
 Red River ; insurrection in, 59. 
 
 Representation in Parliament ; of 
 the provinces, 83-86. 
 
 Representation by population ; de* 
 manded by representatives ox 
 
238 
 
 INDEX, 
 
 Representation, ^ta.— Continued. 
 
 Upper Canada, previous to 1865, 
 49-51. 
 
 Responsible government ; Lord Dur- 
 ham's opinion thereon at time of 
 difficulties in Canada, 32 n ; its 
 establishment in Canada, 37-39; 
 in Neva Scotia, 40 ; in New Bruns- 
 wick, 40 ; in P. E. Island, 100. 
 
 Rochefoucault-Liancourt, Duke de 
 la ; describes ceremonies at open- 
 ing of U(*per Canadian legislature 
 in 1795, 25 n. 
 
 Roman Catholics in Canada ; only 
 required to take oath of allegiance, 
 14 ; relieved of their disabilities, 
 16. 
 
 Skcrrtart of Sva.tk op Canada ; 
 department of, 71, 73. 
 
 Seigniorial Tenure ; established, 5 ; 
 abolished, 43. 
 
 Senate ; its constitution, 75, 77, 78 ; 
 present organization, 78 ; qualifica- 
 tions of senators, 79 ; addition to 
 number, 79-80 ; vacancies, 80 ; in- 
 demnity to members, 85, n. See 
 fis. 21-36, 39 of £. JV. A. Act, app. A 
 to this work' 
 
 Simcoe, Lieut.-Govemor ; opens and 
 closes first session of legislature of 
 Upper Canada, 24, 25 n. 
 
 Smith, Hon. W. ; speaker of legis- 
 lative council of Lower Canada in 
 1792, 24 n. 
 
 Solicitor-General ; 70.74. 
 
 Speaker ; of the Senate, appointed by 
 the Cxovernor-Ueneral. bee sec- 34 
 of B. N. A. Act, app. A to this 
 xoork. In the Commons, by the 
 House. See t7»ic?, ss. 41-49. Speaker 
 of Legislative Council in Quebec* 
 not a member of the Executive 
 Council, 96. Before Confederation, 
 in Upper and Low jr Canada, 21, 24 ; 
 in Canada) 35-36. 
 
 St. Catherines Milling k Lumber Co. 
 V. the Queen ; decision of the 
 Supreme Court of Canada, 151-155. 
 
 Stipendiary Magistrates ; how ap- 
 pointed, Fl. 
 
 Streams' Act of Ontario ; disal- 
 lowed, 110. 
 
 Supplies ; dispute between executive 
 and assemblies with respect to 
 control of, 26. 
 
 Supreme Court of Canada. See 
 Judiciary. 
 
 Supreme or Superior Council ; estab- 
 lished in French Canada, 3. 
 
 Sydenham, Lord ; Governor-General 
 of Canada, .'i5 ; his opinion as to a 
 municipal system, 40 », 41. 
 
 Tax Bills op Quebec ; judicial de- 
 cisions on, 127, 155. 
 
 Temperance Act, Canada, of 1878 ; 
 judicial decisions respecting, 135- 
 139. 
 
 Temporalities Fund of Presbyterian 
 Church in Canada ; judicial de- 
 cision thereon, 128-130. 
 
 Thurlow, Attorney-General ; his 
 opinion on the Proclamation of 
 1 (63, 9 n ; on the rights of French 
 Canadians, 11. 
 
 Titles in Canada ; special marks of 
 royal favour conferred on eminent 
 Canadians ; order of St- Michael 
 and St. George enlarged, 21 n. 
 
 Trade and Commerce ; department 
 provided for, 74. 
 
 Treaty of Paris ; 7, 
 
 Unio^t Act, 1840 ; its origin, 32-35 ; 
 Poulett Thomson (Lord Syden- 
 ham), first governor of United Can- 
 ada, 35 n ; its leading provisions, 
 34-36 ; responsible government, 37- 
 40 ; importance of legislation from 
 1841-1867, 40-48 ; its repeal, 49. 
 
 VAycocvER Island ; constituted a 
 British colony, 101-102 ; united to 
 British Columbia, 102. See Cwfum- 
 6ta, Brititih. 
 
 WiLMOT, Mr. Speaker ; held seat in 
 cabinet, 72 n. 
 
 Winnipeg South-Eastera RR. Bill 
 disallowed ; 112. 
 
 YpRKE, Attorney-General ; his opin- 
 ion on risrhcs of French Canadians 
 in 1763, IL n.