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.