V How Canada is Governed A SHORT ACCOUNT OF ITS KXFXUTIVE, LEGISLATIVE, JUDICIAL AND MUNICIPAL INSTITUTIONS WITH AN HISTORICAL OUTLINE OF THEIR ORIGIN AND DEVELOPMENT WITH NUMEROUS ILLUSTRATIONS BY J. G. BOURINOT, C.M.G., LL.D., D.C.L., D.L. Clerk of thk Caxapian Hot-sb of Commoxs, ArxiiOR of a Manial of CoNSTiTirrioxAi. History, Pakma.vikmaky rHAcncR and PRocKniRK in Canada, amd OTHER Works ox tiik Government and Constitition OF THE Dominion Toronto THE COPP, CLARK COMPANY, LIMITED 1895 Ii4 Entered according to Act of the Parliament of Canada, in the year one thousand eiffht hundred and ninety-five, l)y Tiik Coit, Clark Company, Limited, Toronto, Ontario, in the Office of the Alin-'ster of Agriculture. 2)eMcate& TO MY FRIKND OK MANY YHARS, DR. GEORGE STEWART, OF QUEBEC. PREFATORY NOTE. 'Y'HIS little volume is intended to present such a succinct review of the public institutions of Canada as will be easily understood by all classes of her people. The first duty of citizens in every country is to make themselves thoroughly acquainted with the nature and operation of the system of government under which they live. Without such a knowledge, a man is very imperfectly ecpiipped for the performance of the serious responsibilities which devolve upon him in a country where the people rule. No amount of so-called "practical experience" can compensate a man for ignorance of the ele- mentary principles of political science, and of the origin, development and methods of his own government. I have kept steadily in view the requirements of that great mass of people, old and young, men and women, who have few opportunities of obtaining special knowledge of institutions of government. I have avoided all technical language wher- ev^er it is possible, and in every case have explained such words and phrases which, although in general use. are not always understood even by those on whose lips they are most frequent. I have attempted to make this citizen's manual as complete as possible within the limited space at my disj.osal. ] have borne m mind the fact that a Canadian is not merely a citizen VI PREFATORY NOTE. of Canada, and as such has duties and obligations to discharge within the Dominion and Province, but that he is also a citizen of the greatest and noblest empire that the world has ever seen. Consequently one of the most important parts of this book is devoted to a brief account of the onerous functions of the sovereign, who, through her national councils, executive and legislative, administers the affiiirs of Great Britain and Ireland, and of her many colonies and dependencies. The third part describes the nature and methods of the general government of the Dominion ; the fourth part deals with the powers of the several provincial authorities that compose the federal union, and with the organization and procedure of the courts of law; the fifth part outlines the working of the municipal system, in which all classes of citizens should be so deeply interested ; the sixth part indicates the manner in which our public schools are administered by the government and people in every pro- vince; the seventh part briefly explains the mode in which the territorial districts of the Northwest are governed before they have reached the dignity of provinces in the full possession of responsible government. In the Appendix I give the text of the constitution or British North America Act of 1867, ^^^ amending acts in full. At the end of each Part of the volume I add references to such authorities as will be most useful to those persons who wish to go thoroughly into the study of institutions. In closing the book I say a few words with respect to the duties and resi:)onsibilities that devolve upon all classes of Canadians as citizens of a selfgoverning country. These words are very inadequate when we consider the wide scope PREFATORY NOTE. vii and importance of the subject, and all I can pretend to hope IS that they may serve to stimulate thoughtful men and women —especially those young men just assuming the obligations of citizenship— to think deeply on the problems of government which are every day presenting themselves for solution, and perhaps encourage them in a desire to perform their full share in the active affairs of a Dominion yet in the early stages of its national life, J. G. BOURINOT. Ottawa : Queen's Birthday, 1895. CONTENTS. MAP OF THE POLITICAL DIVISIONS OF THE DOMLNION OF CANADA. FIRST PART. Growth of the Constituiton. chapter. pagh. I.— Definitions of Words and Phrases used in this IJook. i II.— Poliiical Growth of Canada lo III.— V. — Historical OiitHne 13 VI. — Federal Union 35 Bibhographical Note 42 SECOND PART. Imperial Government. 1. — Kxecutive Power 45 II. — Legislative Power 55 III. — Judicial Power 62 IV. - Imperial Control over Canada 64 Bibliographical Note 68 [ixj X CONTENTS. THIRD PART. The Dominion Government. CHAPTER. PA(;R. I. — Executive Power I'S n. — v.— Legislative Power 93 VI. — Judicial Power 128 VII. — Revenue and Expenditure i33 VIII.— Militia and Defence 138 Bibliographical Note M ' FOURTH PART. The Provincial Governments. I. — Executive Power .... '45 II. — Legislative Power 155 III. — Matters of Provincial Legislation 163 lV.~Judicial Power 170 v.— VI.— Courts of Law ^'^11 VII.— Trial of Civil and Criminal Cases i97 VIII. — Provincial Revenues 211 Bibliographical Note 216 FIFTH PART. Municipal Government in the Provinces. I. — n. — Nature of the Municipal Systems in the Provinces',. 219 Bibliographical Note 240 CONTENTS. Xi SIXTH PART. School Government in the Provinces. CHAPTER. FACiK. I. — Public Schools in Ontario and Quebec 243 II. — Public Schools in Nova Scotia, New Brunswick and Prince Edward Island 254 III. — Public Schools in Manitoba and British Columbia 261 Bibliographical Note 264 SEVENTH PART. Government in the Northwest Territories. I. — Government 269 1 1. — Public Lands and Indians 275 Bibliographical Note 280 CONXLUSION. The Duties and Responsibilities of Canadian Citizens 281 APPENDIX. The Constitution of the Dominion of Canada or the British North America Aci, 1867, and Amending Acts 289 ANALYTICAL INDEX. LIST OF ILLUSTRATIONS AND AUTOBRAPHS. PAGE. 1. Autograph of Samuel Champlain 13 2. Autograph of Governor-General Murray 15 3. Old Bishop's Palace, Quebec, where I'irst Parliament of Lower Canada met in 1792 iS 4. First Parliament Building, Toronto, 1796-1813 20 5. Autograph of Lord Durham 23 6. Nova Scotia Province Building 28 7. Prince Edward Island Province Building 30 8. Legislative Building of Newfoundland 31 9. Autographs of I elegates to Quebec Federal Conference of 1 864 36-37 10. The Royal Standard of Great Britain and Ireland 46 1 1. Westminster Palace 56 1 2. Autograph of Queen Victoria 60 13. Autographs of Governors-General since 1867 75 14. The Great Seal of Canada 87 I 5. Dominion Coat of Arms 89 16. Red Ensign of Canada 90 1 7. Flag of the Governor-General 90 18. Parliament Building at Ottawa 92 19. Interior of the Ottawa House of Commons 96 20. Dominion Ballot Paper 103 21. Legislative Building of Ontario 146 22. Legislative Building of Quebec 150 23. Flag of Lieutenant-Governor of Ontario 153 24. Provincial Arms 1 54 [ xiii ] xiv LIST OF ILLUSTRATIONS AND AUTOGRAPHS. PAGE. 25. Manitoba Legislative Building • 158 26. British Columbia Legislative Building 162 27. New BrunswicK Legislative Building 166 28. Osgoode Hall, Toronto 186 29. City and County Buildings, Toronto 22 1 30. City Hall, Montreal . , ... 227 ^r. City Hall, Winnipeg 235 32. Upper Canada College, Toronto 244 33. Entrance to Toronto University 249 34. Harbord Street Collegiate Institute, Toronto 256 35. Ryerson Public School, Hamilton 262 36. Diagrams of Land Sections in the Northwest 275-276 FIRST PART Growth of the Constitution CHAPTER J'AGK I. — Definitions of Words and Phrases used in this Book i II. — Political Growth of Canada lo III. — V. — Historical Outline 13 VI. — Federal Union 33 Aap of the Domi ENGRAVE » f How Canada BY D^J -C-BOUR The Copp- Clark TORON 140 130 110 100 90 \^L ^S, 1/ irSA/'fiC'^f ' %.m \^ -drc^'-' Tw,'' ^^i iATHf "120 ~ u'-V-<^ MINION OF GANADA lAVED FOR .DA IS Governed." BY )URlNOT, C.M.C. Cla^k Co., Limited. TORONTO. HOW CANADA IS GOVERNED CHAPTER I. DEFINITIONS OF WORDS AND PHRASES USED IN THIS BOOK. /. Inirodiictio7i. — 2. Government. — ^?. Law of the Land. — 4. Ex- ecutwe^ Legislative and Judicial Powers. — 5. Administration. — 6. Parliament. — 7. Coftclusion. 1 . —Introduction. In the course of this book it will be necessary to use certain words and phrases which are constantly in the mouths of those who speak of the institutions of government in a country. Among these words are "government," "law," "constitution," "administration," "parliament," "executive power," "legislative power," and "judicial power," the meaning of which it is important to explain at the very commencement, so that the reader may thoroughly understand the subjects which this book professes to treat. It is always difficult — indeed in some respects impossible — to give a short and exact definition of terms of government which cover so vast a ground of human experience as those in ques- tion. All that I shall attempt to do is to g\vQ such explanations as will suffice for the intelligent reading of a book which is not written for the scholar, or lawyer, or [1] ^ DEFINITIONS. professor, who has mastered these subjects, but for the student entering on the study of Canadian government and for that large body of people who are absorbed in the engrossing employments of life and have But few opportunities for reading of this class. 2.— Government. In every organized society or community of persons like the Dominion of Canada, there must be some machinery, or system of rules, by which the individual actions of the members composing that society, and their relations with one another can be regulated for the good of one and all. The machinery or system of rules which performs this all important work is called The Govern- ment, which, followed to its old Greek origin, means to steer the ship. To steer " the ship of state " — that is to say, of a nation or people — means to govern or direct its movements. The instrument of direction has, by the usage of centuries, come to signify " the government." The true object of this directing power is the security of life and property, the well-being and happiness of the whole community. The forms that government takes are numerous. There is no more interesting study than that which traces the development of different stages of government ; from the earliest of all, the family, in which the parent rules, down to the composite forms which have grown up in the course of thousands of years to meet the varied conditions of modern society. It is sufficient for our purpose to show that Canada affords the most remarkable example that the history of the world has offered — in fact it has had no parallel — of the various forms of government th.it can and do exist in a com- GOVERN MKNT. 3 m unity which is still in a state of dependency — that is to say, still dependent in certain matters on the parent or imperial state — and nevertheless exercises most extensive powers of self-government. In the first place, Canada is under a monarcJiical form of government, because at the head of her affairs and of the whole empire is a sovereign, not chosen from time to time by popular vote, but wear- ing the crown by legal right, and removed from all con- ditions of political conflict. In the second place, Canada is under a parliamentary or responsible form of govern- ment, because the sovereign or her representative in the Dominion does not exercise any power, legislative or executive, except through a legislature which makes the law, and an executive which is practically chosen by that legislature to carry out that law. In the third place, Canada is under a representative form of government, because the people— that is to say, all British subjects living in Canada and having rights under the law — choose from time to time a certain number of men to legislate for them in parliaments or legislatures or repre- sentative bodies. In the fourth place, Canada is under a federal {ovm of government because she comprises within her territorial limits a number of provinces, or separate political communities, exercising distinct powers of government for provincial objects, and at the same time combining for general purposes for the promotion of the advantage of all those provinces. Each province has a local government, carried on according to prescribed forms. The whole of Canada has a federal or general government, conducted under prescribed forms. Nor are these the only forms of government of which we hear constantly. In every province there is a form of 4 DEFINITIONS. municipal government which provides for the comfort, convenience and security of the inhabitants of cities, towns, villages and other municipal divisions. All the schools of a province, which are supported by provincial moneys and municipal taxes, are also subject to a system of well-considered rules or machinery of government. Accordingly from the supreme government in England, which administers or superintends the affairs of the whole empire, down to the little village council in a province, which imposes taxes and provides for the general necessities of the citizens within its municipal control, we see how many forms enter into the machinery of the government of Canada. 3.— Law of the Land. The principal duty of every government is to execute or carry out The laiv of the land. In its general sense the law is a collection of rules and orders, imposed by an established and recognized authority for the conduct of persons living in a political society or community. The fact that there is a government or power behind this law to enforce it, whenever necessary, is what really gives it strength. The law may be either written or unwritten, and it is both in Canada. The law which regulates the system of federal union, generally known as the written constitution, or British North America Act, is a written law or statute passed in 1867 by the supreme power of the empire, the parliament of Great Britain and Ireland. In addition to that written constitutional law, there are numerous constitutional rules, usages, and understandings, which have the force of law since they are accepted by common consent for EXECUTIVE, LEGISLATIVE AND JUDICIAL POWERS. 5 the direction of parliamentary or responsible government; which regulate the formation or resignation of a ministry, for instance, as the writer shall explain fully hereafter (see TJiird Part, c. i, sec. 6). All the methods of government which have been briefly described above, monarchical, parliamentary, representative, federal, are secured and regulated by this elaborate system of written and unwritten law and rules, which forms the constiUitioii of the Dominion — in other words, a body of principles constituted or established by the supreme authority of the imperial state in accordance with the wishes of the people of Canada. Then there is the statutory law of the land, made up of the numerous statutes or legally ordered acts * of the legislative bodies on the many subjects under their control. Then there is that vast body of rules and usages and judicial decisions which have come to us from England and comprise the common law of the country (see FourtJi Pari). The system of law which we possess is consequently very complicated and the result of the experiences of many centuries. Both England and France have contributed their experiences to our system, and we have built on that foundation a large body of rules adapted to the conditions of a new country. 4.— Executive, Legislative, and Judicial Powers. The law regulates the division of the powers of govern- ment into what are known as the executive, legislative, and judicial departments. The executive power carries * Statute comes from the Latin word statutits, meaning ordered, established, set up. 6 DEFINITIONS. out and enforces the law ot the hind by the machinery which that law affords. From the governor-general in council of the Dominion and the lieutenant-governor in council of every province — or the supreme executive powers of Canada — down to the humble constable or peace officer executing a writ or order of a court, there is a large body of public officers engaged every day in enforcing the law of the land in accordance with the rules and usages laid down for their direction in every case. The legislative power makes law and alters it in Canada in accordance with the powers granted by the constitution or fundamental law (see above p. 5). In the Dominion there is a central legislative power or law- making body called a parliament — a name we derive from England (see beloiv p. 7) — and in every province there is also a legislature with law-making rights, as well as municipal councils having certain legislative powers within their municipal divisions (see Fifth Part). The judicial power applies and gives a meaning to the law whenever disputes come before the judges in due form. This judicial power is represented by judges and courts duly authorized to administer justice and explain the law in such forms as the law has ordered. 5. —Administration. Another word which is sometimes used for "executive" is administrative. The body of men who carry on the government is often called the " administration," and with some reason, since it is their duty to see that the duties of their respective departments or branches of government are carried out in accordance with law. For instance, it is ^hc duty of the minister of customs, and the collectors at PARLIAMENT. 7 every port of Canada, to administer the law passed by parliament for the regulation and collection of duties of customs on goods coming into Canada from other countries. It is the duty of the minister of public works, and of the engineers, architects and clerks under his control, to look after the construction, repairs and main- tenance of public buildings, like post offices and custom houses, and administer the affairs of the department generally. It is the duty of the commissioner of crown lands in a province to carry out the regulations for the sale of public lands and the licensing of " timber limits," and to administer all the functions devolving upon his department by law. It is the duty of the warden, mayor or other head of a municipal council to see that the affairs of his municipal division are administered in accordance with the general municipal law and the special statutes or by-laws (see FiftJi Part) governing municipal divisions. A public official, in administering the law, acts of course on his own motion, in accordance with its rules ; a judge, in administering the law, does not act until he is called upon to do so by a case or proceeding which comes before him in his court in such form as the law directs. 6.— Parliament. The name of that great legislative body which has performed so remarkable a part in the history of England, and given a designation to the principal law-making body of Canada, is said by one of the highest authorities, Professor Freeman, to be simply the Norman French translation of an old phrase which goes back to the time 9f William the Conqueror. That king is said in an old 8 DEFINITIONS. English record or chronicle to have had " very deep speech" — parlement — with his national, or common council (in Latin, cofnmuiie concilmrn). This deep speech, or parlenif.nt was " consequently a distinguishing fea- ture of a meeting between king and people, and in the end it gave its name to the assembly," which has, in the course of time, assumed the somewhat changed form of parliament (in low Latin parliamentuni). The name of the House of Commons — that body where political power now mainly rests— does not at all mean that the great mass of the people of England, " the commonalty," was ever represented in the early national assemblies. On the contrary, the word " commons " was restricted in meaning to a small and special representation of knights of shires or counties, and of burgesses or citizens of a {q\^ towns or boroughs, and cities, whose local bodies — called conimunitates in legal Latin documents, because their members had certain privileges in common — elected the representatives in question. Gradually the term " commons " came, as a matter of convenience, to mean those classes of the people who were not lords of parliament, and were not summoned to the upper house, but could be elected to the lower or commons branch. Even the sons of lords of parliament became commoners — identified with the mass of people. In this way, there grew up two houses of parliament : one representing the classes or estates called "lords spiritual and temporal," — peers, archbishops and bishops, — and the other, that estate which takes in so many people and is now called the Commons of Great Britain and Ireland. In Canada there has never been such distinctions of "estates" or classes. The legislative councils of the PARLIAMENT. provinces, and the present senate of the Dominion, or upper houses of our parhaments, differ from the lower or commons' houses of Canada only in consequence of their appointment by the governors, representing the queen, and of their not being elected by the people who have a right to vote for representatives. Under the laws that now prevail throughout Canada for the qualification of voters, all classes and interests can be represented in our legislative bodies. In fact, the representation of the commons or the people is far more liberal than that in the parent state, despite the great advances that have been made in this direction during the last sixty years — the period of the reform of the English parliament. 7.— Conclusion. However imperfect the foregoing explanations may be, it will be well for my reader to bear them in mind and to refer to them whilst studying this short review of the governmental institutions of Canada. Other words and phrases that apply to the details of government will be more conveniently explained according as each branch of the general subject comes up in its proper place. CHAPTER II. POLITICAL GROWTH OF CANADA.* /. The Dominion of Canada.- 2. Pla7t of the Book. — j. Periods of Political Develop))ient. 1.— The Dominion of Canada. The Dominion of Canada forms one of the most im- portant dependencies of the most remarkable empire known to the history of the world. It is properly called a dependency because its government, though complete within itself, is necessarily dependent on and subordinate to the supreme authority of Great Britain, whose queen and parliament preside over the whole empire. This Dominion comprises at the present time the provinces of Prince Edward Island, New Brunswick, Nova Scotia, Quebec, Ontario, Manitoba and British Columbia, as well as a vast area of territory in the Northwest divided into five districts of government. These provinces and terri- tories are closely connected by a political system called a federal iiniofi, to which, as a whole, has been given the name of a Domhiion from the fact that it forms a part of the dominions or dependencies subject to the government of the queen and parliament of England. It has a population of five millions of souls, of whom two millions and a quarter live in the English province of Ontario, formerly known as Upper Canada ; a million and a half * The word Canada is a memorial of the time when the P'rench discovert r, Jacques Cartier, found that the Indian inhabitants on the banlis of the St. I^aw.ence called their villages Kanuatay or a collection of huts. [10] PLAN UF THIS WORK. II in the French province of Quebec, formerly known as Lower Canada ; ne.aly a million in the maritime pro- vinces of Prince Edward Island, New Brunswick and Nova Scotia ; one hundred and seventy thousand in the province of Manitoba, one hundred thousand in the pro- vince of British Columbia, and about the same number in the Northwest Territories. In the province of Quebec there is n French population of about a million and a quarter of souls. In the maritime provinces there is also a French Acadian population of over a hundred thou- sand souls. The remaining and larger population of Canada is almost entirely of English, Scotch or Irish origin. Of the whole population of Canada, nearly two millions of souls are Roman Catholics, of whom two- thirds live in the province of Quebec. Nearly three millions are Protestants. 2 -Plan of this Book. I propose to show the nature of the government of this federal union of provinces ; in other words, the nature of the political machinery which regulates that political society or community of people, who live in these several provinces and territories. My object is simply to give such a concise and impartial account of the nature and working of the executive, legislative and judicial machinery of government as will be easily under- stood by the whole community, old and young, men and women, and at the same time show them all that the institutions of Canada are calculated to render the people, irrespective of race or religion, happy and prosperous as long as those institutions are worked out, honestly and wisely by those who have been chosen by 12 POLITICAL GROWTH. the people for the administration or management of public affairs throughout this self-governing dependency of the empire. 3.— Periods of Political Development. It is necessary that I should at the outset briefly trace the most important steps in the political development of the several provinces comprised in the present Dominion, so that every one may the more clearly understand the origin and nature of the system of government which Canadians now possess. I shall first refer to the political history of the large country generally known as Canada until 1867, and now divided into the two provinces of Quebec and Ontario. So far there have been four complete Periods in the political history of those provinces : 1. The Period of French rule, from 1608 to 1759-60 or the Period of absolute government. 2. The Period from i "j^o to 1 79 1 , when representative and legislative institutions were established. 3. The Period from 1791 to 1840, when representative institutions were slowly developing into respon- sible or complete local self-government. 4. The Period from 1840 to 1867, during which responsible government was established in the fullest sense of the phrase, and the federal union was finally accomplished as the natural result of the extended liberties of the people. Since 1867 Canada has entered on the Fifth Period of her political history as a federation, the nature of ^vhose institutions of government will be explained in the chap- ters following the historical review, CHAPTER III. HISTORICAL OUTLINE. I. French rule, 1608 — lydo. — 2. English rulc^ lydo — //p/. French Rule, 1608-1759-60. The country watered by the St. Lawrence and the Great Lakes of the West, and now divided into the pro- vinces of Quebec and Ontario, and known as Upper and Lower Canada before Confederation, became the col- onial possession of France by the right of first discovery and later settlement. Jacques (James) Cartier, a bold sailor of St. Malo, in France, landed at Gaspe in 1534 and sailed up the St. Lawrence in 1535, or more than forty years after the discovery of America by Columbus. It was not until 1608, however, that Samuel Champlain, of Brouage, on the Bay of Biscay, commenced the build- ing of a town amid the rocks of ancient Stadacone — the name of a famous Indian hamlet of the days of Cartier — and actually laid the foundations of the colony which has developed into the province of Quebec. Canada was for some years under the control of com- mercial companies to whom the king of France gave exclusive rights over the fur trade. By 1664, however, [13] 14 HISTORICAL outline:. the rule of commercial companies came to an end and the king established a regular government in Canada which became a mere province of France. In Canada as in France the head of the province had only such powers as were expressly given him by the king who, jealous of all authority in others, kept him strictly subordinate to himself. The governor had command of the militia and troops ; the intendant was an official, almost equal to him in rank, and of larger authority in the colony, since he managed its financial affairs, and acted also as judge and legislator. A council, exercising legislative and judicial powers, assis;.ed the governor and intendant, and acted as a colonial court of appeal in civil and criminal cases — the king himself in council being the supreme court of last resort or reference. Justice vvas administered in cases of property and the rights of individuals in accordance with the custom of Paris, or the French system of law which is still one of the institutions of French Canada. (See Fourth Part.) Tlie bishop was a member of the council, and the Roman Catholic Church became established by the decrees and ordinances of the government. The parish became a district for local as well as church purposes. Tithes or regular charges for the support of clergy and church were imposed and regu- lated by the ordinances or statutes of the government. All education was under the control of the church and its numerous religious bodies. An effort was made to establish a class of nobles by the granting of large tracts of land to lords (seigneurs) who leased them to cultivators of the soil (habitans) on condition of receiving certain payments. The king and council of state kept a strict supervision over the government of the colony. tNGLISII kULE. 15 We look in vain for evidence of popular freedom in those days. Canada was never allowed representative government. Public meetings of all kinds were steadily repressed. No system of municipal government was established, and government was in every respect autocratic. 2.-Englisli Rule in Canada, 1760-1791. From the surrender of Quebec and Montreal in 1759- 1760 to the English military forces dates the commence- ment of a new area of political liberty in the history of French Canada. Canada formally became a possession of England by the Treaty of Paris, of 1763, which allowed the French Canadians the free exercise of their religion. From 1760 t::> 1763 there w.is a military government as 2^^^ a necessary result of the unsettled condition of things in a country that had suffered so much from war. Then King George III. issued a proclamation — a formal announcement of the royal will — which established the first system of English government in the new possession of England. The people were to have the right to elect representatives to an assembly, but the time was not yet ripe for so large a measure of public liberty, if indeed it had been possible under the instructions to Governor- l6 HISTORICAL OUTLINE. General Murray which required Roman Catholics — then the great majority, and in fact the people generally of Canada — to take the same oath which prevented their co- religionists in England sitting in parliament. The government of the province was carried on for ten years by a governor-general, aided by an executive or advising council, composed of a few English officials and inhabitants, and only one French Canadian. The ordinances * or laws, passed by the governor and council, created much discontent among the French Canadians, since they practically laid aside the French legal system to which they had been always accustomed, and established the common law of England. In 1774 the parliament of England passed the Quebec Act, which gave the first constitution to the new province. The government was entrusted to a governor and legislative council appointed by the king, and the scheme of an elected assembly was postponed as " inexpedient," under existing conditions. The French Canadians were not yet prepared for representative institutions of whose working they had never any practical knowledge, and were quite content for the time being with a system which brought some of their leading men into the legislative council. But what made the act so popular in French Canada was the fact that it placed the French * Ordinance is an old French word, which itself comes from the Latin ordinare^ to order or regulate, and is generally applied in Canadian constitutional history to a legal order of the governor and council — a legislative body of only one house — common to all the colonies before the concession of a complete system ot representative government. The acts of the Northwest lieutenant-governor and assembly are still called ordi- nances (see Seventh Part). ENGLISH RULE. I7 Canadians or Roman Catholic population on the same footing as English Canadians or Protestants, confirmed tlicir right to full freedom of worship, allowed the church as a body to retain their valuable property, and restored the French civil law with respect to property and individual rights. The criminal law of England was, however, to prevail throughout the province. In the legislative council both English and French were used, and the ordinances were drawn up in the same languages. The ^governor-general was assisted in the work of governn^ent by an advisory body of five persons — chiefly members of the legislative council — who were chosen by himself and called a privy council, in imitation of the council that so long surrounded the English king. (See Second Part^ c. i, sec. 3.) [i8i CHAPTER IV. HISTORICAL '^nXINE— C^„/^«;,^,/. J. rmmigration of United Empire Loyalists.— 4. Representati^'e Institutions in Upper and Ijnuer Canada, ijg2-iS40.— 3. Period of Responsible Go7>ernment, 1S40-186J. 3.— Immigration of the U. B. Loyalists. While the Quebec Act continued in force, there was a very important immigration into British North America of some forty thousand persons known as United Empire Loyah'sts— that is to say, men loyal toBritish connection— who decided to leave the old English Thirteen Colonies (now a portion of the United States), when they declared themselves independent of England. These men laid the foundations of the provinces now known as New Bruns- wick and Ontario, settled a considerable portion of Nova Scotia, and exercised a large influence on the development of representative institutions in their new homes. 4.-Representative Institutions in Upper and Lower Canada, 1792-1840. The Quebec Act lasted from 1 774 to 1791, when the English government again interfered in the affairs of the provinces. By this time there was a rapidly increasing English population in the western parts of the country, and difficulties were constantly arising between English and French Canadians on account of the legal [19] 20 HISTORICAL OUTLINE. system not being inadc sufficiently clear. The British government con.'*idcred it the wisest policy to form two separate provinces, in which the two races could work out their own future, as far as practicable, apart from each other. By the " Constitutional Act," passed by the imperial parliament in 1791, the people were represented for the first time in an assembly elected by themsek^es. The act provided for a governor-general in Lower Canada and a lieutenant-governor in Upper Canada, both appointed by the sovereign. In each province there was an executive or advisory body, chosen by the governor of the province ; a legislative council chosen in the same way, and an assembly elected by the people in certain districts on a restricted franchise. Members of both houses had to hold property to a fixed amount or lose their secits. First Parliament HriLDiNGS, Toronto, 1796-1813. The great object of the act was to give to both Upper and Lower Canada a constitution resembling that of England as far as the circumstances of the country could permit. After an experience of some years, however, it was clear that the constitution of 1791, though giving CONSTITUTIONAL ACT OF 1 79 1. 21 many privileges, had one source of weakness since it professed to be an imitation of the Engh'sh system, but failed in that all-important principle which the experi- ence of England has proved to be necessary for the satisfactory working of the several branches of govern- ment ; that is to say, the principle which requires the advisers or ministers of the head of the executive — in other words, of the queen in England, and of a governor- general or lieutenant-governor in Canada — to be chosen from the political body that has a majority of the people's representatives in the elected assembly, and to be responsible at once to the queen, or governor-general, or lieutenant-governor, and to the people's assembly, for the work of administration and legislation. The English Canadians in Upper Canada eventually understood and pressed for the adoption of this principle, but the French Canadian popular leaders appeared to consider the radi- cal remedy was the election of the appointed legislative council which was generally in French or Lower Canada in conflict with the elected assemblv. For some years, previous to 1 840, when a new constitu- tion was given to the two Canadas, there was a " war of races " in Lower or French Canada, where the French and elected element predomiiiated in the assembly, and the English and official or ruling clement in the legisla- tive council. The executive government and legislative council, both nominated by the crown, were virtually the same body in those days. The ruling spirits in the one were tlie ruling spirits in the other. In this contest of race, rLligion and politics, the passions of men becajne bitterly inflamed and an impartial historian must depre- cate the mistakes and faults that were committed on 22 HISTORICAL OUTLINE. both sides. But looking at the record from a purely constitutional point, it must be admitted that the majority in the assembly were right in contending for the control of the public expenditures in accordance with the principles of English parliamentary government. The voting of money is essentially the privilege of a people's house, though no measure can become law with- out the consent of the upper house, which may reject, but cannot change, a taxation or money bill. Another grievance was the sitting of judges in both houses. It was not until the assembly deluged the imperial parlia- ment with addresses on the subject, that this grievous defect disappeared from the political system. In Upper Canada the political difficulties never assumed so serious an aspect as in the French Canadian section. No difference of race could arise in the western province, and the question of money and expenditure gradually arranged itself more satisfactorily than in Lower Canada, but nevertheless the people at large had their grievances. An official class, called sarcasti- cally "a family compact," held within its control practi- cally the government of the province. The " clergy reserves question," which grew out of the grant to the Protestant Church of Canada of large tracts of land by the Constitutional Act of 1791, was long a burning question in the contest of parties. The Church of England and the Church of Scotland alone derived advantages from this valuable source of revenue. In those times of popular agitation, the great danger arose from the hostility of the two races in the political field as well as in their social and public relations. At last, the political difficulties in French Canada ended POLITICAL CONFLICTS, 1792-1840. 23 in the rebellion of iS}y-^S, led by Louis Joseph Papineau, and Wolfred Nelson, the leaders of the popular party. This insurrection never extended over any large section of the French province, but was very soon repressed by the vigorous measures taken by the civil and military authorities. In Upper Canada, the popular leader, William Lyon Mackenzie, attempted to excite a rising of the people against the government, but it never made any headway, and he was obliged to find refuge in the states of the American federal republic. The result was the suspension of the representative constitu- tion given to Lower Canada by the act of 1791, and the government of the province from 1838 to 1840 by a governor-general and a special council appointed by himself. The most important fact of this time, on account of its influence on later constitutional changes, was the mission of Lord Durham, a distinguished English statesman, who was authorized by the imperial govern- ment to inquire into the state of the country as governor- general and high commissioner with large powers. Few state papers in English history have had greater influence on the political development of the colonies than the report which was the result of his judicial survey of the political condition of all the provinces of British North America. On no point did he dwell more strongly than on the necessity that existed for entrusting the government to the hands of those in whom the representative body, or people's house, had 24 HISTORICAL OUTLINE. confidence. The final issue of the Inquiries made by the imperial government into the affairs of the country was the passage of another act in the English parliament providing for a very important constitutional change in Canada. 5.— Period of Responsible Government in Canada, 1840-1867. The act of 1840, which reunited the provinces of Upper and Lower Canada under one government, was the commencement of that Fourth Period of political development which lasted until 1867. The French Canadians looked upon the act at first with much suspicion. The fact that the French language was no longer placed on the same footing as English, in official documents and parliamentary proceedings, together with the fact that Upper Canada had the same representation as Lower Canada in the assembly, despite the larger population of the latter section at the time of union, was considered an injustice to the French Canadians, against which they did not fail to remonstrate for years. But so far from the act of 1840, which united the Canadas, acting unfavourably to the French Canadian people, it gave them eventually a predominance in the councils of the country and prepared the way for the larger constitution of 1 867 which has handed over to them the control of their own province. French soon became the official language by an amendment of the union act, and the clause providing for equality of representation proved a security to French Canada when the upper province increased more largely in population than the French Canadian section. The act of 1840 was framed on the RESPONSIBLE GOVERNiMENT. 2$ principle of giving larger political privileges to the Canadians and was accompanied by instructions to the governor-general, Mr. Poulett Thomson, afterwards Lord Sydenham, which laid the foundation of responsible government. It took several years to give full effect to the leading principles of parliamentary government, and it was not until the arrival in 1847 of Lord Elgin, one of the ablest governors-general Canada has ever had, that the people enjoyed in its completeness that system of the responsibility of the cabinet to parliament without which our constitution would be unworkable. The Canadian legislature was given full control of taxation, supply and expenditure in accordance with English constitutional principles. The clergy reserves difficulty was settled and the lands sold for public or municipal purposes, the interest of existing rectors and incumbents being guarded. The great land question of Canada, the seigniorial tenure of Lower Canada, was disposed of by buying off the claims of the seigniors, and the people of Lower Canada were freed from exactions which had become not so much onerous as vexatious, and were placed on the free footing of settlers in all the English communities of America. Municipal institutions of a liberal nature, especially in the province of Ontario, were established and the people of the two provinces enabled to have that control over their local affairs in the counties, townships, cities and parishes, which is necessary to carry out public works indispensable to the comfort, health and convenience of the community, and to supplement the efforts made by the legislature, from time to time, to provide for the general education of the country. The civil service, which necessarily plays so 26 HISTORICAL OUTLINE. important a part in the administration of government, was placed on a permanent basis. The legislative union did its work until the political conditions of Canada again demanded another radical change in keeping with the material and political development of the country, and capable of removing the difficulties that had arisen in the operation of the act of 1840. The claims of Upper Canada to larger represent- ation — equal to its increased population since 1840, owing to the great immigration which naturally sought a rich and fertile province — were steadily resisted by the French Canadians as an undue interference with the security guaranteed to them under the act. This resistance gave rise to great irritation in Upper Canada where a powerful party made representation by population their platform, and government at last became practically impossible on account of the close political divisions for years in the assembly. The time had come for the accomplishment of a great change foreshadowed by Lord Durham, Chief Justice Sewell of Quebec, Mr. Howe of Nova Scotia, Sir Alexander Gait of Canada, and other public men : the union of the provinces of British North America, But before I proceed to refer to the results of the convention of British American statesmen that met at Quebec in 1864, and framed a system of federal union, it is necessary that I should first refer to the progress of popular government in the maritime provinces, so that this historical sketch may be made complete until 1867. CHx^PTER V. HISTORICAL OUTLINE — Concluded, 6.— Maritime Provinces: Nova Scotia^ New Brunsiuick, P II Island^ and Cape Breton^ 1714-1867.-7. Newfoundland. 6.— Maritime Provinces, 1714-1867. Nova Scotia, New Brunswick, and Prince Edward Island were formerly portions of the French domain in America. John Cabot, a Venetian in the employ of Henry VII. of England, appears to have discovered Cape Breton and Nova Scotia in 1497 and 1498, but the French were the first to make a settlement in 1605 on the banks of the Annapolis Basin. Nova Scotia, New Brunswick and a considerable part of Maine were in the days of French rule known as ' Acadie,* an Indian name. The present maritime provinces became the possession of England by the treaties of Utrecht (17 13) and of Paris (1763). None of these provinces w^ere ever given written constitutions by the parliament of Great Britain, as was the case with old Canada; but to all intents and purposes they enjoyed, previous to 1867, as complete a system of self-government as that large province. Their constitutions must be sought in the commissions of the lieutenant-governors, despatches of Akdde means a place, and was always used in connection with another Indian word showing some feature of the locality. Thus Anagwakade is White Place or Point. [27] 28 HISTORICAL OUTLINE. the colonial secretary of state, imperial statutes, ai^d various official documents, which granted in the course of time a legislative system and responsible government. In Nova Scotia, from 17 13 to 1758, the provincial government consisted of a governor or lieutenant- governor and a council possessing both legislative and executive powers. A legislative assembly sat for the first time at Halifax on the 2nd October, 1758, or thirty- four years before representative assemblies met at New- ark (now Niagara), the capital of Upper Canada for several years, and at Quebec, the capital of Lower Canada. Nova Scotia Province Building. New Brunswick, founded by Loyalists, was separated from Nova Scotia, and created a distinct provincejn 1784. Its first government consisted of a lieutenant-governor. MxVRITLME PROVINCES. 29 and a council having both legislative and executive func:?ons, and an assembly elected by the people. At the time of the outbreaks in Upper and Lower Canada, 1837-8, there was still a considerable amount of dissatisfartion in the maritime provinces, arising from the existence of an irresponsible council exercising execu- tive, legislative and even judicial powers, the constant interference of the imperial government in purely local matters, and the abuse of the powers of the representa- tive and executive bodies ; but if there was in those sections less discontent and less obstruction to the regular course of government, it was because in them there was a nearer approach to sound constitutional practice. In New Brunswick especially, the political controversies that had been extremely bitter between the executive and legislative authorities were, to a great extent, ended by the grant of all the revenues to the assembly. Before 1840 the legislative council in the two provinces was no longer allowed to exercise both execu- tive and judicial functions. By 1848 the principles of responsible government were formally carried out as in the province of Canada. The island of Cape Breton, known also as Isle Royale in French Canadian history, was not ceded to England until 1763. It was under the government of Nova Scotia from 1763 to 1784 when it was given a separate government consisting of a lieutenant-governor and council having very limited legislative as well as execu- tive functions. This constitution remained in force until the reannexation of the island in 1820 to Nova Scotia of which it still forms a part. 30 HISTORICAL OUTLINE. The island of Prince Edward, formerly known as St. John, formed a part of Nova Scotia until 1769, when it was created a separate province, with a government con- sisting of a lieutenant-governor and a combined execu- tive and legislative council. In 1773 ^" assembly was elected. Some of the lieutenant-governors were for years, in the early history of the island, in constant con- flict with the assembly, and during one administration the island was practically without representative govern- Prince Edward Island Province Building. ment for ten years. The political situation was made much worse by the fatal mistake at the very commence- ment of its history, of handing over all the public lands — in fact the whole island — to a few absentee proprietors, and it was not until the admission of the province into the confederation that this burning question was satis- factorily settled by the purchase of the claims of the NEWFOUNDLAND. 31 landlords. Responsible government was not actually carried out until 1850-51, when the assembly obtained full control, like the other provinces, of its public revenues, and was allowed to manage its purely local affairs. 7.— Newfoundland. The great island of Newfoundland, which stands at the very gateway of the Dominion of Canada, became a possession of England by virtue of the discoveries of John Cabot in 1497, and of Sir Humphrey Gilbert in r Legislaiive Bi;iLDi.\(i of Newfoundland. 1583 — the latter having formally received permission to assert English jurisdiction over the island. For very many years the island was only a resort for the fisher- 32 HISTORICAL OUTLINE. men of all nations and the scene of conflict between France and England. In 1713 the island was finally ceded to England, and English fishermen commenced to form settlements around its shores. Until 1832 the system of government was most arbitrary, and a few wealthy merchants in England and their agents in the colony practically controlled affairs. In that year representative institutions were allowed the people, and the government consisted of a lieutenant-governor assisted by an appointed council, with both legislative and executive functions, and an elected assembly. In 1854 responsible government was conceded. The government is placed in the hands of a lieutenant-governor appointed by the queen ; of an executive or advisory council of seven ministers ; of a legislative council of fifteen members, appointed by the governor-in-council ; of an assembly of thirty-six members, elected every four years by manhood suffrage by ballot. While the province is a colonial possession of England, France by virtue of the Treaty of Utrecht (171 3), o( Paris (1763), of Versailles (1783), and of Paris again (181 5), enjoys certain fishery rights on a wide extent of the western and north-easterly coast, which have always prevented immigration and created difficulties which must be settled by the entire removal of those concessions if the province is ever to form a contented and prosperous portion of the Dominion of Canada. CHAPTER VI. FEDERAL UNION. I. Stimviary of Poliiical Rights. —2. Federal U7iion, iS6y.~ J. Adimssioji of nrilish CohnRlna.~4. Acquisiiio?! of the Northu'est Territories.- 3. Three leadi?7g principles of Federal Union.— 6. IIo^u Canada is Governed; Division of Authorities of Go7>ernmc7it. 1. -Summary of Political Rights, 1867. As the previous pages show, when it was decided in 1864 to have a meetincr of representatives of the British North American provinces to consider the feasibility of a union, all these countries were in possession of a complete system of local self-government, consisting of a governor-general in Canada, and a lieutenant-governor in each of the other provinces ; of an executive or advisory council, appointed by the governor-general, or lieutenant- governor, and dependent on the support of the majority in the elected assembly ; of a legislative council, ap- pointed by the lieutenant-governor, with the advice of his council, in Nova Scotia and New Brunswick, but elective in Canada and Prince Edward Island ; and of an assembly, elected by the people. As we look back over the century that had passed between the Treaty of Paris, which ceded Canada to England in 1763, and the Quebec convention of 1864, we can see that the struggles of the statesmen and people of British North America had won from England 3 lli^ 34 FEDERAL UNION, for all the provinces the concession of the following principles, which lie at the foundation of our whole politi- cal structure : 1. The establishment at an early period of Canadian history, of the principle of religious toleration and equality of sects. 2. The guarantees given to the French Canadians for the preservation of their law and language. 3. The adoption of the English criminal law in the French as well as the English provinces. 4. The establishment of representative institutions in every province. 5. The independence of the judiciary and its com- plete isolation from political influences and conflicts. 6. Complete provincial control over all local reven- ues and expenditures through the people's assembly. 7. The right of Canadian legislatures to manage their purely local affairs without imperial interference. 8. The establishment of municipal institutions, and the consequent increase of public spirit in all the local divisions of the old provinces of Upper and Lower Canada. 9. The adoption of the English principle of respon- sibility to the legislative assembly, under which a ministry or executive council can only hold office while its members have seats in that body and possess the confidence of a "majority of tlie people's elected representatives. FEDERAL UNION, 1 867. 35 2— Federal Union, 1867. Having had many years' experience of local self-gov- ernment, having shown their ability to govern themselves, having recognized the necessity for a union which would give them greater strength within the Empire, and afford larger facilities for commercial relations between each other, and with the rest of the world, the governments of the several provinces, whose constitutional history we have briefly reviewed, united with the leaders of the opposition in the different legislative bodies, with the object of carrying out this great measure. A convention of thirty-three representative men was held in the autumn of 1864 in the historic city of Quebec, and after a deliberation of several weeks the result was the unani- mous adoption of a set of seventy-two resolutions embodying the terms on which the provinces through their delegates agreed to a federal union. These resolutions had to be laid before the various legislatures and adopted in the shape of addresses to the queen whose sanction was necessary to embody the wishes of the provinces in an imperial statute. In the early part of 1867 the imperial parliament, without a division, passed the statute known as the " British North America Act, 1867," which united in the first instance the province of Canada, now divided into Ontario and Quebec, with Nova Scotia and New Brunswick, and made provisions for the coming in of the other provinces of Prince Edward Island, Newfoundland, British Columbia, and the admission of Rupert's Land and the great Northwest v!^\30LoX5gV. * S/['^cc<^^ S^M^S-y-^' (2)^^ X\jO>3a s>g.oV VOL. ^^'fi^Oz^r}7i^ * The delegates to the Quebec conference, whose autogmrhs I give above, held the following positions in their respective provinces :- Canada: Hon. Sir Etienne P. Tache, M L.C, premier; Hon. John A^ Macdonald, M.P.P., attorney-general of VF'^;,^^W^ Hc^^^^ Geo-e Etienne Cartier, M.P.P., attorney-general of l^^^e Canada ^^^^^^^'^^ ^ii^;^:of^ ^i±^j^-^ ^:::.^^;J^:i sioner of public works ; Hon. Ihomas i> /vrcy mc c ' ,. ■ ' | f„r Hon. Tames Cockburn, M.P.P., solicitor-general for Upper Canada, Hon. Oliver Mowat, M.P.P., postmaster-general. _ Nova Scotia: Hon. Charles Tupper, M.P.P., provincial secretary and prenTe Hon. William A. Hemy, M.P.P., ^ttorney-general ; Hon. KrtB. Dickey, M.L.C.; Hon. Adams G. Archibald, M.P.P.; Hon. Jonathan McCully, M. L.C. •' [36] >\xVC> X> X VVW^VVtxA^ . C v/—r^^^^ ^^^t^..^^==^-^ * ^» — ^r ^ ■J. lCc vvvv5\o,^;^ . -H ^^^^^ M.I', p. M.P.P.; Neiv Brimmmk: Hon. Samuel L. Tillev, M I' p ,„ovin.;oi on. Wlhanj H. .Sieves, M.L.C.; Hon. John Ilamiiton iU^^' ' Prince Edward Island: Hon. John Hamilton Gray M P P nr.^v,; I on. George Cole.s, M.P.P.; Hon. Thomas Heath Ha vihnd M P p' Hon. Edward Palmer, MP. P., attornev-enenl ■ Hon An 'a V'/; ' Macdonald M.L.C./Hon. Edward V^h^ritLx" HofwUhfn;''; ' Pope, M.P.P., provincial .secretary. v>iiiiam H, Netv/oimdland : H(,n. Frederick B. T. Carter, M.P.P speaker of th house of assembly; Hon. Ambrose Shea, M.P.P. ''Peaker of the [37] 38 FEDERAL UNION. Newfoundland took no steps to promote union after the convention of 1864, which two of her representatives attended. Prince Edward Island joined in 1873. 3.— Admission of British Columbia. British Columbia, which took no part in the convention, came into the federation in 1871. For many years the mainland was separate from Vancouver Island. That island was held in 1843 by the fur-trading corporation, known as the Hudson's Bay Company, and nominally made a crown colony in 1849, or a colony without representative institutions, in which the whole power rests in a governor and appointed officials. The official authority continued practically in the hands of the trading company for some years later. In 1856 an assembly was called, despite the very small population of the island. The island was united with British Columbia in 1866, and the latter name given to the united colonies. The mainland, known as New Caledonia and British Columbia previously to 1866, was also long a domain of the Hudson's Bay Company, and it was not until 1858 that it became a crown colony. In 1863 a legislative council was at first organized by the crown and was partly appointed by the governor, and partly elected by the people. By the act of 1866, uniting the island of Vancouver to the government of British Columbia, the authority of the executive government and legislature of the latter colony extended over both colonies. Until 1 87 1, when the province of British Columbia entered the federal union of Canada, it was governed by a lieutenant- governor, appointed by the sovereign, and a legislative ACQUISITION OF THE NORTHWEST. 39 council, composed of heads of public departments and several elected members. Responsible government was not introduced into the province until after 1871. 4.-Acquisition of the Northwest and Formation of Manitoba. Previous to the union of 1867 that vast country known as Rupert's Land and the Northwest Territory was under the control of the Hudson's Bay Company, who held exclusive trading rights given by Charles II. to his cousin Pnnce Rupert and "the company of adventurers" trading in that region. It was not until 1869 that the rights of that monopoly were purchased and the region formally transferred to the government of the Dominion of Canada. In 1870 a new province was formed under the name of Manitoba and invested with all the functions of self-government possessed by the older provinces Subsequently the Northwest Territories were divided into the districts of Keewatin, Assiniboia, Saslcatchewan Alberta and Athabasca for purposes of administration and government. 5. -Three Leading Principles of Federal Union. I have given a brief historical sketch of the constitu- tional development of the countries that compose the federal union of Canada, and I shall now proceed to direct attention to the framework of the government of that union. The Canadian constitution, or British North America Act of 1867, is a statute of the parliament of Great Britain, before whom as the supreme legislative authority of the empire the provinces of Canada had to come and 40 FEDERAL UNION. express their desire to be federally united. In the addresses to the queen containing the resolutions of the Quebec conference of 1864, the legislatures of the provinces set forth that in a federation of the British North American provinces " the system of government best adapted under existing circumstances to protect the diversified interests of the several provinces, and secure harmony and permanency in the working of the union, would be a general government charged with matters of common interest to the whole country, and local governments for each of the Canadas, and for the provinces of Nova Scotia, New Brunswick and Prince Edward Island, charged with the control of local matters in their respective sections.'* In the third paragraph the resolutions declare that " in framing a constitution for the general government, the conference, with a view to the perpetuation of our connection with the mother country, and the promotion of the best interests of the people of these provinces, desire to follow the model of the British constitution so far as our circumstances permit." In the fourth paragraph it sets forth : " The executive authority or government shall be vested in the sovereign of the United Kingdom of Great Britain and Ireland, and be administered accord- ing to the well -understood principles of the British constitution, by a sovereign personally, or by the representative of the sovereign duly authorized." In these three paragraphs we see clearly expressed the leading principles on which our system of government rests : A federation tvith a central government exercising general powers over all the members of the union, and a HOW CANADA IS GOVERNED. 41 number of local govcrmnents having the control afid management of certain matters naturally and conveniently belonging to them, while each government is administered in accordance zvith the British system of parliamentary institutions. These are the leading principles which were made law by the British North America Act of 1867, and which I propose to explain in the course of the following pages. 6.— How Canada is Governed. As the most intelligible mode of explaining the nature of the somewhat complicated constitution of the Dominion, I shall divide the whole subject— How Canada is Governed— into several Parts which will set forth in order the functions and responsibilities that belono- to the following authorities, governing the Dominion as a dependency of England, and as a federation of provinces. 1. The Imperial Government, exercising executive legislative and judicial supremacy over the dependency through a sovereign acting by and with the advice of a responsible council, a judicial committee of the privy council, and a parliament. 2. The Dcminion Govenmient, whose executive, Ico^is- lative and judicial powers as the central authority of the federation are exercised through a governor-general appointed by the sovereign, or crown,* as legally stated, and acting by and with the advice of a responsible council a parliament, and a supreme court. * The word crown, wliere used in this work or any other, means the reign- ing sovereign, king or queen, ^vho is represented by the governor-general of the Dominion and the lieutenant-governors of the provinces for purposes of executive government. 42 FEDERAL UNION. 3. The Provincial Governments, exercising executive, legislative and judicial jurisdiction within their con- stitutional limits, through a lieutenant-governor, appointed by the governor-general in council, an advisory or executive council, a legislature, and a judiciary. In the course of these chapters I shall necessarily explain the nature of the relations between the Imperial and Dominion governments, and between the Dominion and Provincial governments. I shall also give, as a matter of convenience, a special place to the government of the territories though it falls, strictly speaking, under the second division of powers, and to the government of municipalities and schools, though it also belongs to the third division of provincial authorities. BIBLIOGRAPHICAL NOTE. I give at the conclusion of each Part of this book references to a few works which are most accessible to those students who wish to devote more attention to the subjects to which I have merely introduced my readers. For instance : Bourinot's Manual of the Constitutional History of Canada (Montreal, 1888), which is a text book in a number of colleges, and gives the constitution or British North America Act in full at the end. Houston's Constitutional Documents of Canada (Toronto, 1891), has the text of the Quebec Act of 1774, the Constitutional Act of 1791, of the Union Act of 1840, and of otlier statutes and official documents relating to the constitutional development of the provinces from 1760 to 1867. Dent's Canada Since the Union of 1 841 (Toronto, (1880-81), is correct. So is L. Turcotte's Canada Sous l^ Union (Quebec, 187 1), for readers of P'rench. Professor Ashley's Lectures on the Earlier Constitutional History of Canada (Toronto, 1889), are useful. The official record of the Parliatnentary Debates on Confederation in the legislature of Canada in 1865 (Quebec, 1865), should be carefully read. Every legislative and public library in Canada has copies of tliis book, containing the speeches of the fathers of Confederation in old Canada, SECOND PART. Imperial Government. CHAPTER. PAGB. I. — Executive Power 45 II. — Legislative. Power 55 III. — Judicial Power 62 IV. — Imperial Control over Canada 64 48 CHAPTER I. THE IMPERIAL GOVERNMENT: EXECUTIVE POWER. /. hitrflduction.—2. The Sovereign.— 3. Origin of the Cabinet or Royal Adi'isory Council. — 4. Working oj the Cabinet System and Aleaning of " (2ueen in Council. ^^ 1 . —Introduction. As the system of parliamentary government which Canada possesses is derived from that of England, it is important that we should clearly understand the princi- ples on which that government rests. For the purposes of this book it is only necessary to refer briefly to the following supreme authorities of the empire : The Sovereign, Privy Council, Judicial Committee of the Privy Council, Parliament. 2.— The Sovereign. In accordance with the constitutional usages and rules which have grown up in the course of centuries, the reigning sovereign of England, at present a queen, per- forms all executive acts through her privy or executive council, administers justice by her courts, and makes laws for the whole empire in her great legislature or parliament. [453 46 EXECUTIVE POWER. The crown is hereditary by English law. A statute passed during the reign of William and Mary, and called the Act of Settlement, settled the succession to the throne, vacated by James II., on the heirs of the Princess Sophia of Hanover — a German state — the granddaughter of James II. Her Majesty the Queen is a lineal de- A The Royal Standard. scendant of this princess. The titles of her majesty at the beginning of her reign were '' Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith." In 1877 she was proclaimed Empress of India. *The Royal Standard, or personal banner of the sovereign, displays the arms of England (three lions ''passant" or walking) ; of Scotland (a lion "rampant," or erect as if attacking); of Ireland (a harp,)— the English arms being repeated on the fourth quarter in accordance with the rules governing such heraldic devices. xHE SOVEREIGN. 47 On the death of the sovereign the crown descends to a male heir, and failing a son or son's son to a daughter or to a daughter's son or daughter. An uncle, nephew or male cousin of the sovereign only succeeds when there are no sons or daughters of the sovereign. The probable successor to the throne at the present time — the " heir apparent" as he is legally called — is the Prince of Wales, eldest son of the queen, who has a male heir, the Duke of York, to follow him. Though the crown is hereditary in the family of the present sovereign, it is at the same time subject to the authority of parliament — that is to say, of the sovereign, the lords and the commons, acting together as a supreme legislature. From the earliest times in the history of England we see the evidences of the supreme authority of the English national councils in their as- sertion of the right to limit and regulate the succession to the throne in a national emergency. The great council of early English days, the Witenagemot or assembly of the wise men — Witan meaning wise men, and gemot, an assembly in Anglo-Saxon — elected the king, who was the chief among the nobles of the land, — the choice falling as a rule on a member of the family of the deceased sovereign. Even William of Normandy, the conqueror of England, felt it necessary to give some show of title to his claim to the throne by being chosen by a national council he called together. In later times kings were deposed and chosen by the will of similar councils of the kingdom. The revolution ol 1688, which deposed James II. for his violation of the recognized or fundamental laws and rights of the people of England, and placed William and Mary of Orange on the throne, 4S EXECUTIVE POWER. was the last example our history gives us of parliament asserting its right to regulate the succession to the crown. The laws of England declare that it is treason for any one to say that the parliament — that is to say, the king or queen, in conjunction with the two houses — is not able to make statutes of sufficient force to limit and bind the crown, and regulate and determine the descent, inheritance and government of the same. Every sovereign, at his or her coronation, solemnly promises and swears " to govern the people of this kingdom and the dominions thereto belonging according to the statutes in parliament agreed on, and the respective laws and customs of the same." As the queen is by law the head of the executive power, all acts of government must be carried out in her name. It is by her will and pleasure that parliament is called together for the despatch of business., or is pro- rogued — that is, a session closed — or is dissolved, — that is, a new house of commons elected by the people. She is "the fountain of justice," since she is represented in her courts by her judges ; she alone can confer titles, distinctions and honours, she alone can pardon offenders against the law — this last being her highest attribute of sovereignty. All these and other prerogatives — that is to say, the ancient rights and privileges belonging to the sovereign as the head of the kingdom by law and usage — are not now immediately exercised by herself in person on her own responsibility. Every one has heard the maxim " The Queen can do no wrong." The meaning of this phrase must be sought in the constitutional history of the council who are directly responsible for the acts of the sovereign. ORIGIN OF CABINET. 49 3.— Origin of the Cabinet or Royal Advisory Council. From the earliest times of our history — for England's is Canada's history too — there were always councils around the sovereign whom he summoned to assist him by their advice. The several councils grac^ually de- veloped with the growth of the kingdom into a parlia- ment of two houses in which the commons had a representation, into law courts, and into a privy council. The latter was a oermanent or continual council of officials and nobles, the confidential counsellors of the king. The sovereign for centuries, as late as the time of George I., sat in council. This was the executive body, as distinguished from tho legislative body or parlia- ment of which the king was the first branch, and which he alone could summon, prorogue or dissolve. This privy council became at last too large for purposes of consultation, and King Charles I. selected from its mem- bers a committee who were named a Cabinet Council because they met in the king's private chamber. In later times it was called also a " Cabal," or club of in- triguers, in terms of derision. This smaller council had no special authority behind it — the privy council as a body was alone recognized by the law as the responsible executive council — but King Charles I. found it most convenient for his purposes in times uhen he was intri- guing against parliament. In the quarrels of the Stuarts with the commons they were constantly asserting prero- gatives in violation of the acknowledged rights of the people, and this council became very unpopular as the secret conclave, or cabal, for the king and his instru- ments. It owed no responsibility to any one but the 4 50 EXECUTIVE POWER. king himself. It was not necessary that its members should have seats in the popular house. The practice of forming a committee out of the large body of privy councillors as a special or inner body of advisers of the crown has continued to the present time, and the term " Cabinet," once so unpopular, is now a title of honour and dignity. But the modern cabinet council is not the irresponsible instrument of the royal will and pleasure that it was in the days of the Stuarts. Since the revolution of 1688, when James II. was deposed, there has been gradually developed the principle that the cabinet must be composed of privy councillors not only chosen by and responsible to the sovereign, but selected from those men who have seats in parliament and have the confidence of the majority of the people's representa- tives in the house of commons, the elected body of the great legislative council of the nation. As long as they keep the confidence of this house they remain the counsellors or ministers of the king, and are responsible for the work of administration and legislation, but the moment they lose that confidence the sovereign must choose another set of advisers or ministers, who also must be privy councillors— for England has always clung to her old names and ancient institutions — and must have the support of the popular house. Sometimes a ministry, defeated in parliament, will be allowed by the sovereign to ask the opinion of the people at a general election. If they are supported at the polls and have a majority of the people's representatives, they remain in office. Otherwise they must give way to the men who have obtained the popular majority. Elsewhere, when I come to speak of the Canadian methods of government, THE CA15INET SYSTEM. 5 I which are copied from those of England, I shall explain how the prime minister or head of the cabinet or ministry, and the members of that body are chosen, (see p. 81). 4.— Working of the Cabinet System and Meaning of ** Queen in Council." From the foregoing necessarily imperfect summary three leading facts in the working of the constitutional system of England may be gathered : 1. That the privy council is, strictly speaking, the only body known to law and usage in England as the sovereign's council. 2. That in order to keep up old customs and main- tain the law, the cabinet, or responsible council, is chosen from the large body of privy council- lors. 3. That this responsible council must be members and have the confidence of parliament. When members of the house of commons, who are not privy councillors, are called upon to form a ministry, they must be first sworn of the privy council* Then they are called to the ministry or cabinet, and placed in charge of certain departments or offices of the govern- ment One of these departments is entrusted with the supervision of the affairs of the colonial empire, and is called the secretary of state for the colonies (see below, p. 65). The cabinet, or inner council, is the body that discusses * English privy councillors are always styled " Rlj^ht Honourable." 52 EXECUTIVI': POWER. and decides all questions of public policy : i.e.y the nature of the measures to be introduced into parliament, the relations of England with foreign countries, treaties of peace, declarations of war, questions affecting the govern- ment of Great Britain and Ireland, India, and the dependencies, important appointments, and the countless matters that devolve on the government of a great nation. Its deliberations are held in secret, and when it reaches a conclusion, we see the results in executive, administrative and legislative action, according to the well understood methods of the British constitution. When the action of the head of the executive — that is of the sovereign — is necessary on any question of state, she is advised by the premier or responsible minister. When the sovereign has given her consent an order-in- council is passed, and has the effect of law. In other cases, the signature of the sovereign must also be given to the acts of the council — such as certain appointments by commission,* and other acts of royal authority. In all cases any document, which is an act of the executive, must be countersigned by a responsible minister or official and have the " great seal " or official evidence of the royal will affixed (see beloiv, p. 86, for Canada's great seal). All orders-in-council, or other acts of executive power, are considered to be passed by the privy council — order-in-council means an order passed by the sovereign by and with the advice of the privy council — the only body known from old times as the permanent or advisory * A commission is an authority or order to perform certain duties ; all public officials, actinij under the crown, have such an authority. It conies from the Latin word committere, to place or trust a thinj^ somewhere. QUEEN IN COUNCIL. 53 body around the sovereign. The queen never acts alone. What she does in administration she does through the aid of a minister or ministry, — who are members of the privy council. In fact every act of the sovereign in her executive and royal capacity is done on the advice of a sworn counsellor. If the advice is wrong, or in violation of the law, the minister or ministry who gave it is open to the censure of parliament, or a particular minister may be brought before the ordinary courts of law. Consequently the maxim that " the Queen can do no wrong " has arisen from the adoption of the following constitutional principles ; 1. That by no proceeding known to the law can the queen, herself the head of justice as she is of all branches of government, be made person- ally responsible for any act done by her in her executive capacity. 2. That every executive act is the result of the deliberation of a sworn council, who advise the queen thereon and are alone responsible for the advice. 3. That no minister of the crown can bring forward an order of the crown as a defence or justifica- tion of an act that is in violation of law. 4. That the minister who gives the advice becomes responsible and liable to punishment for mis- leading the crown. The sovereign, it is well to mention here, has never sat in council with the cabinet since the days of George 54 EXECUTIVE POWER. the First, who departed from the practice of his royal predecessors on account of his ignorance of the EngHsh language. What was in his case a matter of convenience has ever since become the settled practice. Now the sovereign — and the same is true of the governor-general of the Dominion and a lieutenant-governor of a province — is informed of the results of the deliberations of council, and acts on the advice of a responsible minister. CHAPTER II. THE IMPERIAL GOVERNMENT : LEGISLATIVE POWER. /. Sovereign in Parliament.— 2. Origin of Parliament.— 3. Char- ters of English and Canadian Constitutional Liberties.— 4. Strength of Parliamentary Government.— 5, The Queen's Onerous Duties as a Sovereign. 1.— The Sovereign in Parliament. Every statute or law passed by the supreme legislature or parliament of Great Britain and Ireland commences with these words : "That it be enacted [that is, made law] 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 parHament assembled, and by the authority of the same as follows." Here follow the provisions of the law or act of parliament. I have copied these words because they show that the sovereign is still understood in law to legislate for her realm in a great legislative council known as a parlia- ment, whilst she acts in her executive capacity in a privy council. The legislation she assents to as the first branch of parliament she executes or carries cut in her executive capacity, through and by the advice of her sworn counsellors and officers appointed and sworn to execute and administer the law justly and faithfully, as I have shown above. [553 < < a '-t z i H en [561 ORIGIN OF PARLIAMENT. 57 2.— Origin of Parliament. The origin of parliament must be sought in the early assemblies of our English ancestors, who were Teutons or Germans who came from the sea-coast of northern Germany and of Denmark. The Witenagemot of old times, before the Norman conquest, was a national assembly of great nobles, and ecclesiastical dignitaries, summoned by the sovereign to consult and deliberate on the affairs of the kingdom. After the Norman conquest it became known as the "Great Council," and was practi- cally the house of lords. It had executive, legislative, and judicial powers. The king's special or permanent council to w^hich I have referred above, and the king's advisory law court (curia regis) became part of this great council at certain times, and together formed a common council of the whole realm. Eventually, the estates of the realm, the archbishops and bishops or the lords spiritual, the nobles of the kingdom or the lords tem- poral, and the commons, formed a parliament (for mean- ing, see above^ p. 7). It was a great noble, Simon de Montfort, of Leicester — a statesman much in advance of his age — who overthrew King Henry III. on the battle- field of Lewes, and first summoned representatives of the towns and counties to meet bishops and nobles in a parliament in 1265. This scheme of Simon de Montfort was adopted by King Edward I. in 1295, and has ever since formed the mode! of the parliament of England. Edward accepted this great council, always thereafter known as parliament, as a most convenient instrument for raising taxes ; it being the immemorial right of Englishmen to be taxed only with their own consent 58 LEGISLATIVE POWER. through their own representatives. The representative principle, as applied to goverr ::nt, is essentially English. Its origin can be traced to the "motes" or assemblies of the local divisions of England in early English times. In the municipal system of Canada, as I shall show later (see Fifth Part), we have copied the names of those local divisions and of their public officers. 3.— Charters of English and Canadian Constitutional Liberties. From the days of Edward I., a wise monarch, there was for centuries a constant struggle between sovereign and commons for the mastery. The necessity for raising money by public taxation forced the most arbitrary sovereigns to summon parliament sooner or later. At all times we find nobles and commons united to resist the unconstitutional efforts of kings to reign without the assistance of his national council. Magna Charta, one of the great statutes of English liberty, wrung from King John, on the field of Runny mede in 12 15, affirmed the fundamental principle of the constitution that English- men could not be taxed without the consent of the national council as then constituted. Another great statute, known as the Petition of Right, grudgingly as- sented to by Charles I. four centuries later, when he could not resist the demands of parliament, again affirmed that no tax of any sort might be exacted without the consent of parliament. The Bill of Rights, passed in 1689, when William and Mary became joint king and queen of England, was a strong declaration of the original .rights of the people, violated by James II., who had fled the STRENGTH OF PARLIAMENTARY GOVERNMENT. 59 kingdom. This famous charter of constitutional liberty set forth among other things : That it is illegal for the sovereign to suspend or exe- cute laws without the consent of parliament. That it is illegal for the sovereign to dispense with laws. That it is illegal to levy money without the consent of parliament. That petitions to parliament are legal and punish- ments for them illegal. That parliamentary elections ought to be free. That freedom of speech and debate in parliament is subject to parliamentary control only. That parliaments ought to be frequently held. These are the fundamental principles of parliamentary government in England as in all the dependencies of the crown. 4.— Strength of Parliamentary G-overnment. The great object of parliament is taxation in order to meet the needs of government. English sovereigns soon recognized the fact that Englishmen through their re- presentatives in parliament must control all the taxes and expenditures of the realm. From* the days of the revolution of 1688 the struggle betw^een sovereign and the commons practically came to an end. With the development of the principle of ministerial responsi- bility — the presence in parliament of a body of ministers responsible at once to sovereign, commons and people — harmony was created between the executive and legisla- Go LEGISLATIVE POWER. tive departments. The cabinet is now the connecting link between the monarch and the people through their representatives in parliament. As advisers of the crown, as heads of the great departments of state constituting the government, as the recognized heads of the political party or combination of parties having a majority in parliament, this cabinet, which is legally a committee of the ancient privy council, are able to administer public affairs without that friction and conflict between execu- tive and parliament which was the leading feature of old times of irresponsible councils and the personal rule of sovereigns. When we come to consider the government of Canada we shall see carried out all the English methods and principles explained above. The queen in council, the cabinet, the parliament, are all to be found working pre- cisely in the same way in Canada. 5.— The Queen's Laborious Duties as a Sovereign. Although the queen performs all executive acts through responsible ministers dependent on the will of parliament and people, it must not be supposed that her functions as a sovereign are purely ornamental. On the contrary, so high an authority as Mr. Gladstone, who has had a larger experience of government than any other living Englishman, tells us that "no head of a de- THE queen's laborious DUTIES. 6 1 partment performs more laborious duties than those which fall to the sovereign of this country." No despatch " is received from abroad, nor any sent from the country, which is not submitted to the queen." Her signature "has never been placed to any public document of which she did not approve." Cabinet councils "are reported and communicated on their termination by the minister to the sovereign and they often call from her remarks that are critical, and necessarily require considerable attention." In fact " such complete mastery of what has occurred in this country, and of the great important subjects of state policy, foreign and domestic," for the last fifty years is possessed by the queen " that he must be a wise man who could not profit by her judgment and experience." To these explanations of the active life of a great sovereign, it is well to add a fact not generally known to Canadians, that every governor-general is instructed to communicate directly to her majesty, from time to time, the fullest information on all questions of moment to Canada and the empire. CHAPTER III. THE IMPERIAL GOVERNMENT : JUDICIAL POWER. I. — Origin of Courts of Justice. — 2. Judicial Committee of the Privy Council. 1.— Origin of the Courts of Justice. We now come to the third division of government — the judicial authority. The queen is the fountain of justice, and it is administered in her name. In old times, before government assumed its present forms and methods of action, the sovereign dispensed justice immediately and personally in a great council or court. The nobles, lay and ecclesiastic, the great judicial officers of the realm, the chief justice or justiciar — next to the king in authority — and the chancellor formed a national supreme court of law {curia regis\ over which the sovereign presided. In the course of many years after the conquest courts of law were formed out of the great court or council of the kingdom. The old names of these courts still exist in English law, as I shall show when I come to refer to Canadian courts (see below, p. 177). With the development of parliamentary government, after the revolution of 1688, the judiciary were made practically independent of the crown, and of all political influences. Their tenure of office was made one of good behaviour, and they can now be removed only on an address -to the crown by the two houses of parliament, after formal [62] THE JUDICIAL COMMITTEE. 63 impeachment * for grave offences and after full investi- gation of any charges made against them. 2.— The Judicial Committee of the Privy Council of England. With the constitution and procedure of the courts of law of Eng^land Canadians have no direct connection. Justice is administered in their own courts, which have full jurisdiction over all matters of Canadian concern, and the queen is in theory as much present in Canadian as in English courts. But over the empire there is one great court of appeal, .to which reference can be made in cases of important controversy and doubt. The origin of this court, called the judicial committee of the privy council, must be sought in the fact that even after the formation of the regular courts out of the great court or council of the sovereign in early times (see above, p. 49), some of the judicial powers still remained and were exercised in the permanent or continual council of the sovereign. The great council became the house of lords, which still has a remnant of its judicial powers, while the permanent council became the privy council. This latter was eventually divided into committees, which still discharge some of their old functions. One of these committees is the judicial committee, or supreme court of the empire (see beloiv, p. 65). It is now regu- lated by statute and composed of the lord high chan- cellor and other legal functionaries, who must all be members of the queen's privy council. Here, again, we see the tendency of Englishmen to preserve the form of ancient institutions. * To " impeach " means to prefer grave charges of official misconduct against a judge or other functionary, but its origin is obscure. CHAPTER IV. NATURE OF IMPERIAL CONTROL OVER CANADA. I. Introduction.— 2. Govcr7ior-Gencral.—3. Secretary of State for the Colonies.— 4. fudicial Committee.—^. Canadian Rights of Self-Govcrttmeiit. — 6. Making of Treaties.— 'j. When Canadian Legislative Acts may be Disalioived. 1 . —Introduction. With these explanations of the leading principles of the supreme government of the empire, I come now to explain to my readers in what manner and to what extent this imperial government can and does exercise authority or control over this dependency of Canada. The following principles and methods of procedure may be laid down as governing the relations between the imperial and dominion governments : 2.— The Governor-General. The queen, as the head of the executive authority of the empire, acts through a governor-general appointed in council, and consequently an imperial officer. It is throuo-h him all communications between the imperial and Canadian government must pass. When the Cana- dian parliament requires any legislation that properly falls within the jurisdiction of the imperial legislature, addresses to the queen are passed by the former bodV; setting forth the nature of this legislation— such as an [64] SECRETARY OF STATE FOR THE COLONIES. 65 amendment or necessary change in the fundamental law of the Dominion or British North America Act of 1867, which is an imperial statute, and can only be amended in certain respects by the same authority that gave it. This address is forwarded by the Canadian governor- general with such remarks as are necessary, to one of her majesty's ministers. 3.— The Secretary of State for the Colonies. This minister, or privy councillor, is the head of the department of colonial affairs and known as the sec- retary of state for the colonies, — all possessions of the crown, except India, being designated colonies. It is for this important minister, who has always a seat in the inner council or cabinet, to bring the address or other matter requiring the action of the queen and council before that body in the manner required by usage. The council on his advice will agree to introduce and pass such legislation in parliament as will meet the difficulty that has occurred in the Dominion. By the constant interchange of communications between the imperial and dominion governments, agreements are come to, as a rule, on every question which requires adjustment, and any friction in the relations of the two governments prevented. 4.— The Judicial Committee. The queen's courts in Canada administer justice in all cases affec'.ing Canadians, whether of a criminal or civil nature, in accordance with the rights of self-government accorded by law to the Dominion. Appeals arc, how- ever, made from the supreme and superior courts of the 66 NATURE OF IMPERIAL CONTROL. Dominion to the judicial committee of the privy council under such conch'tions as have been laid down by that body under the law. The appellants, or parties who are not satisfied with the decision of the Canadian courts, petition the queen in council for leave to appeal, and if the appeal is allowed — for there are cases where the appeal may be refused — the whole case, as it appears on the record, is submitted to the judicial committee, com- posed of eminent judges — generally four, though three are a quorum — who hear arguments and finally report their decision to the queen in council. This decision is authoritative and settles the case. Criminal cases can- not be appealed from Canada to this court. Nor will the judicial committee admit an appeal from the supreme court of Canada, save where the case is of gravity (see beloiv, p. 130). 5. -Canadian Rights of Self-Government. Tt is a fundamental principle of the English constitu- tion, as I have shown above, that a people under English government can be taxed only with their own consent, through their representatives, under the forms prescribed by law. The imperial state having granted to Canada a complete system of local self-government, with full control over taxation and expenditure, it is only in Canadian parliaments — and I here include provincial legislatures — that Canadian taxes can be imposed and Canadian moneys expended. If at any time Canada requires imperial legislation, on any subject not within her executive or legislative control, she applies to the queen in council in the way I have described above (see p. 64). The imperial parliament cannot of its own MAKING OF TREATIES. ^J motion constitutionally interfere with rifjhts of local self- government granted to the dependency. 6.— Making- of Treaties with Foreign Powers. The queen's government alone, as the supreme execu- tive of the empire, can commence and negotiate treaties with foreign sovereign nations. Canada being only a dependency cannot of her own motion or action give validit}' to a treaty with a sovereign nation. It is through the imperial government and its representatives that all treaties immediately affecting her must be made. It is, however, now an understanding, or even maxim of the policy governing the relations between England and the Canadian Dominion, that Canadian representatives shall be chosen and clothed with all necessary authority by the queen in council to arrange treaties immediately affecting Canada, and all such treaties must be ratified by the Canadian parliament. 7.- "When Canadian Legislative Acts may be " Disallowed." It is still a provision of the Canadian constitution that every act passed by ihe parliament of Canada should be submitted by the governor-general to the queen in council. This is a declaration of the sovereign authority of the imperial government, and only means in practice that it is within the power of the queen in council, re- sponsible for the unity and security of the whole empire, to refuse to consent to, or in the constitutional words, "disallow," an act (see helozv, p. 163) which is in conflict with the interests of the empire at large, may threaten its integrity, and is at variance with treaties with England, a 68 NATURE OF IMPERIAL CONTROL. foreign nation, or with Imperial legislation. It would be unconstitutional, however, for the imperial government to interfere in any matter clearly and exclusively within the authority of the dominion government. When the imperial parliament gave Canada a federal union and a complete system of local self-government, and the right to legislate on certain subjects set forth in the funda- mental law of the constitution (the British North America Act of 1867), it gave her full control of all such matters, and constitutionally withdrew from all interference in the strictly local concerns of the Dominion. It is only when the interests of the empire are in direct conflict with the [)rivileges extended to tne dependency that the sovereign authority of England should be brought into action. This sovereign authority should never be arbi- trarily or indiscreetly exercised, but should be the result of full discussion between the governments of England and the dependency, so that the interests of the two may be brought, as far as possible, into harmony with each other. BIBLIOGRAPHICAL NOTE. A useful elementary book on English constitutional history is David Watson Rannie's Historical Outline of the English Constitution (New York, 1881). Valuable books and articles for more advanced students are the following: Ewald's " The Crown and Its Ailvise7'S^\; or, QueeUy Ministers, Lords and Commons (Edinburgh and London, 1870), Professor Freeman's Groivth of the English Constitution from the Earliest Times (London and New York, 1884), Dicey's History of the Privy Council (London and New York, 1887), Mr. Reeve's article on The Cabinet in the 9th edition of the Encyclopccdia Britannica, Professor Freeman's article on the History of England \\\ the same work, vol. viii., pn. 263-368, with an index at entl of subjects treated in tiie paper ; Professor Woodrow Wilson's BIBLIOGRAPHICAL NOTE. 69 sketch of the institutional history and administration of England, in pp. 651-821, The State (Boston, 1889). Carmichael's edition of Taswell- Langmead's English Constitutional History (London, 1890), is the best history for students in general, since it is both readable, intelligible and correct. Bagehot's English Constitution (London and New York, 1884), is a very clear treatise on the practical operation of parliamentary govern- ment. It was the first successful attempt to show the defects of the consti- tutional system of the federal republic of the United States, arising out of the absence of a political cabinet responsible for the work of administration and legislation, and having seats in congress. THIRD PART. THE DOMINION Government. PAGK. CHAPTKR. I. — Executive Power 73 II. _V.— Legislative Power 93 VI. --Judicial Powek ^28 VII. —Revenue and Expenditure i33 VIIL— Militia AND Defence U^ [7x] CHAPTER I. THE DOMINION GOVERNMENT : EXECUTIVE POWER. /. Introduction. — 2. The Governor-General. — j. Privy Council for Canada : Heads of Departments of Gover?tincnt. — 4. Ministers not in the Cabinet.—^. The Premier. — 6. Rules and Usages of Parliamentary Gover?tme?tt. — 7. Governor- General itt Council. — 8. Civil Service. — g. Great Seal of Canada. — 10. Dominion Coat of Arms.—ii. Dominion Flags. 1 . —Introduction. In the previous chapter, I have given a short summary of the different authorities that govern the empire as a whole, and now come to the government of the Dominion itself. This government is divided among the following authorities : The sovereign, as the head of the executive, repre- sented by a governor-general. A cabinet selected from the members of the privy council for Canada, and forining the responsible advisory council of the sovereign's representa- tive. A parliament, exercising legislative functions over the whole of Canada. A supreme court, exercising judicial functions as a court of appeal from the courts of the pro- vinces, and for the settlement of constitutional difficulties. [73] 74 EXFA UTIVE POWER. The duties of these separate authorities will now be explained. 2.— The Governor-General. The queen is the head of the executive government of Catiada. She is as much the sovereign of Canada as of England or of Scotland, or of Ireland, and her supremacy can be alone acknowledged in all executive or legislative acts of this dependency. As she is unable to be present in person in Canada she is represented by a governor- general appointed by her majesty in council. This functionary, generally chosen from public men of high standing in England, has double responsibilities, for he^s at once the governor-in-chief of a great dependency, who acts under \he advice of a ministry responsible to parliament, and at the same time the guardian of imperial interests. He is bound by the terms of his commission, and can only exercise such authority as is expressly or impliedly entrusted to him by the queen. He must report regularly on all those imperial and other matters on which the secretary of state for the colonies should be informed, (see above, p. 64). In bills reserved for the consideration of the imperial government he forwards them to the secretary of state with his reasons for reserving them. The British North America Act provides that copies of all acts of the Canadian parliament shall be sent by him to the secretary of state for the colonies, that they may be duly considered and disallowed within two years in case they are found to conflict with imperial interests and are beyond the legitimate powers of Canada as a dependency. The governor-general, as the acting head of the executive of Canada, assembles, ^^<^^5^ .^s-^2^ /a^e4,cJi>u/t^^H^ A ^r2Uc^^ ^^a^ Autographs of Governors-General since 1S67. *Sir John Young was created Baron Lisgar in 1870, while governor- general. [75] ^5 EXECUTIVE POWER. prorogues and dissolves parliament and assents to or reserves bills in the name of her majesty ; but, in the discharge of these and all other executive duties, he acts entirely by and with the advice of his council who must always have the support of the house of commons. Even in matters of imperial interest affecting Canada he consults with the council and submits their views to the colonial secretary of state in England. On Canadian questions clearly within the constitutional jurisdiction of the Dominion he cannot act apart from his advisers, but is bound by their advice. Should he differ from them on some vital questions of principle or policy he must either recede from his own position or be prepared to accept the great responsibility of dismissing them ; but a dis- missal of a ministry is an extreme exercise of authority and not in consonance with the general constitutional practice of modern times, when his advisers have a majority in the popular branch of the legislature. Should he, however, feel compelled by very exceptional circum- stances to resort to the extreme exercise of the royal prerogative, he must be prepired to find another body of advisers ready to assume the full responsibility of his action and justify it before the house and country. For every act of the crown, in Canada and in England, there must be some one immediately responsible, apart from the crown itself But a governor, like any other subject, cannot be " freed from the responsibility for his acts nor be allowed to excuse a violation of the law on the plea of having followed the counsels of evil advisers." Cases may arise when the governor-general will hesitate to come to a speedy conclusion on a matter involving important consequences, and then it is quite proper for THE GOVERNOR-GENERAL. 77 him to seek advice from his official chief, the secretary of state for the colonies, even if it be a matter not imme- diately involving imperial interests. The royal prerogative of mercy is no longer exercised on the sole judgment and responsibility of the governor- general, but is administered pursuant to the advice of the minister of justice. With respect to the allowance or disallowance of provincial acts, ever since the coming into force of the British North America Act, the governor-general has invariably decided on the advice of his ministers, and has never asserted a right to decide otherwise. Even in the exercise of the all-important prerogative of dissolution, which essentially rests in the crown, he acts on the advice of his advisers. Mutual consultation, as a rule, brings councillors of the crown into perfect harmony with their constitutional head. Occupying a position of neutrality between opposing political parties, and having no possible object in view except to promote the usefulness and dignity of his \{\nnt hosD ta s, census, statistics, ana regional 7:;:i::^:p-nronnlt,o;, cop^Hght, maustnal designs and trade marks, experimental farms. 6 Secretary of State, who has charge of all the correspondence betetn'e government and the provinces, and on all other offica n ers reHttig to government generally ; registers all documents "sted ,nde he gr at seal (see belo^, P- 86) ; has charge of pubhc prtfng and of tlt^ pnrcl,ase and distribution of stat.onery for all the departments of the public service. 7 Minister of Marine ami Fisheries, who has supervision, under the laws o Canada, of the sea-coast and inland fishe"es, hgh - houses beacons, harbours and piers, steamers and vessels be- tngi- to The government, exannnation of masters and mates o less s inspection of steamers, establishment and regulatmn of „::rine hospitals, and generally such matters as are connected w.th the marine, fisheries and navigation of Canada. 8 Minister of Militi'^ and Defence, who is responsible for the alinlt In of miht.a affairs, including fortificat.ons, armour.es adm mst.ation instruction, military college at rir ° U::<:rtn: i;:maJor.ge„eral, chosen from the regular military service of England. o Minister of the Interior, who has control an management of the'affrrof the Northwest Territories, of the Indians, and of aU 'public "nds belonging to the government, and of the geological survey of Canada. ,o Postnmster Gcteral, who has the management of the post offices and all arrangements relating to the postal service m Canada, and between her and all other parts of the world. „ Minister of Public Works, ^\^o h^.s charge of the construc- tion,' rfjahs and .maintenance of all public buildings and works (except railways and canals). ,. Minister of Railways and Canals, who has charge of the inte; Jr:f Luway between the city of Quebec, Halifax, and St. MINISTKRS NOT IN THE CAIilN'ET. Si John, and all matters which the law entrusts to him in connection with railways throughout the Dominion. All the canals of Canada are also under his direction and superintendence. Under all these political heads of departments, there are deputy ministers, permanent and non-political, appointed by the governor-general in council, and also a large body of clerks and officials, who are appointed and promoted in accordance with the rules of the civil service of Canada (see de/ozu p. 84). 4.— Ministers not in the Cabinet. In 1892 a step was taken in the direction of the . English practice of having ministers with seats in parliament, but not in the cabinet. At the present time there is a controller of customs in charge of the depart- ment of customs, and a controller of inland revenue, acting under the general instructions of the minister of trade and commerce. These ministers go out of office when the government of which they form a portion are defeated at a general election or in parliament. A solicitor-general, who is assistant attorney-general of Canada, has also a seat in parliament and is in the same political position as the two controllers. These three ministers are by royal authority styled " honourable " during their term of office. Privy councillors, whether in or out of the cabinet, have always a right to bear this title. 5.— The Premier of the Cabinet. As the members of a cabinet only occupy office while they retain the confidence of the lower house, the majority necessarily sit in that body, though there is always a certain representation (from four to two), in the 6 82 KXICCUTIVH I'OWKk. upper branch or senate. Since the commons hold the purse strings, and directly represent the people, all the most important departments, especially of finance and revenue, must necessarily be represented in that branch. The ministry, then, is practically a committee of the two houses. Its head is known as the "premier" or prime minister, who, as the leader of a political party, and from his commanding influence and ability, is in a position to lead the houses and control the government of the country. His title, however, is one unknown to the law, though borrowed from the English political system. It originates from the fact that he is first called upon by the sovereign (or, in Canada, by her representative) to form a ministry. The moment he is entrusted with this high responsibility it is for him to choose such members of his party as are likely to bring strength to the government as a political body, and capacity to the administration of public affairs. The governor-general, on his recommendation, appoints these men to the ministry. As a rule, on all matters of important public policy the communications between the cabinet and governor take place through the premier, its official head. Every minister, however, has a right to com- municate with the governor-general on ordinary depart- mental matters. If the premier dies or resigns the cabinet is dissolved, and the ministers can only hold office until a new premier is called to the public councils by the representative of the crown. It is for the new premier then to ask them to remain in office, or to accept their resignation. In case a government is defeated in parliament, the premier must either resign or else convince the governor-general that he is entitled THE (;(ni:Rx\()k-(.EM:kAL i\ council. 83 to a dissolution or general election on the ground that the vote of censure does not represent the sentiment of the country. 6.- Rules and Usages of Parliamentary Government. In the rules governing the formation of the cabinet, its dissolution by death of the premier, its resignation when defeated in the commons, and the relations between the governor-general and his advisers, we see the operation of the conventions, understandings and maxims that have grown up in the course of time, and make parliamentary government workable. These con- ventions, rules and usages are not "rules of law'' in the strict sense of the phrase. We do not find them laid down in the British xNorth America Act, or in an>' statute or law of England or of Canada. 1 he courts can hear and decide any case or action arising out of the provisions of the written law of the constitution, but they could not be asked to decide on such a matter as the propriety of a ministry resigning on a hostile vote in the people's house. These conventions and under standings have now entered into the practice of parlia- mentary government as absolutely essential to its operation, and have now as much force in England and the self-governing dependencies as any legal enactment, since they have the sanction of public approval. 7.— The Governor-General in Council. All orders in council, commissions, proclamations, and other acts of executive authority, follow the course of English precedent (see above, p. 52). The governor- general in council means the governor-oreneral actin"- 84 EXKCUTIVK POWER. by and with the advice of his committee of the privy council of Canada — that is to say, the cabinet. Procla- mations summoning, proroguing and dissolving parlia- ment, writs of election, and commissions to office must be signed by the governor-general, countersigned by a minister or other proper officer, and bear the great seal of Canada (see belozv, p. %G). On every executive act there must be the evidence of ministerial responsibility and authority. 8.— Civil Service. The effectiveness of administration largely depends on the conduct and ability of the civil service of Canada, which is the term generally applied to all classes of public officials and employees in the several departments of the executive government. " Civil service" is an old I{nglish phrase, used to distinguish the subordinates in the civil government from the naval and military services of the country. All public officials are appointed by the governor on the recommendation of the ministry of the day. All appointments are "during pleasure" — practically, during " good behaviour " — and the great body of clerks and employees below the rank of deputy head (see above, p. 8i) iTiust pass an examination on their admission and serve a term of probation or trial of not less than six months before finally placed on the staff of a department. A board of examiners is appointed by the governor- general in council to examine all candidates for admission and give certificates of competency to those persons who pass an examination successfully. Promotions are made under special examination in the departments of the THE CIVIL SERVICE. 85 public service. But city postmasters, inspectors of post offices, inspectors, collectors and preventive* officers in the customs, mspectors of weights and measures, deputy collectors, and preventive officers in the inland revenue department, may be and are generally appointed without examination. These offices are given as rewards for political services. The moment, however, these men are appointed and show themselves capable in the discharge of their duties, they become the servants of the people at large, and not of a particular party or administration. Recognizing their obligations in this respect, the public officials of the Dominion must keep aloof from party conflict and intrigue, and confine theinselves to the legitimate functions devolving upon them. When they have attained a certain age, or become incapable of performing their duties, they are allowed a fair super- annuation or retiring allowance under the conditions laid down in the law. Civil servants and officers of the senate and house of commons must have served for not less than ten )ears, and have attained the age of sixty at least, though in practice over sixty-five is the mini- mum, except in case of incapacity. The allowance is calculated on the average )'early salary for the last three years of service. In case of special professional qualifications, the governor-in-council may add ten years to the actual term of service. A reduction of two per cent annually is made from the salaries of officials toward meeting the expenditures for superannuation. The revenue does not meet the cost of this allowance so * Preventive officers are those wliose duties arc to prevent smuj;gling uf goods into Canada, thai is to say, without paymg the duty required by law S6 EXECUTIVE POWER. far. Whatever defects may still exist in the rules and practices that regulate the public service, it is not too much to say that the permai.^nt officials of Canada are, as a body, an industrious and efficient class, whose services are indispensable to the administration of public affairs. 9.— Great Seal of Canada. By her majesty's command the government of the Dominion of Canada has authority to use a special great seal, composed of the royal effigy, with appropriate armorial surroundings and a combination of the arms of the four provinces that first entered into a federal union. The provincial arms are not arranged on a shield in four divisions, or "quarterly" as set forth in the royal order, but the seal is actually composed as follows : The queen seated upon the throne, crowned, and with orb and sceptre in her hands. Placed, apparently, upon the straight stems of two young oak trees on either side of her, the leaves and acorns showing between the shields, are four separate shields ; upon her right hand hangs the coat of arms of Ontario, that of Nova Scotia beneath it ; on her left the shield of Quebec, with that of New Brunswick below. Beneath her feet is a shield displaying her own coat of arms, without supporters, crown, or motto ; in the tracery above the throne or chair of state is the motto "Dieu et mon droit" (God and my Right). In the circular margin of the whole seal, in large letters : " Victoria Dei Gratia Britanniar. ReginaF. I) In Canada Sigillum. (Victoria by the grace of God queen of Britain, defender of the Faith. Seal in Canada.") The illustration on the opposite page will give a better idea of the seal than a mere verbal description This seal, in accordance with the usages of English law, is the emblem of the royal authority in Canada, the ^V^fesx^^^^ [873 88 EXECUTIVE POWER. evidence of the royal will and prerogative exercised under the constitutional forms peculiar to our system of government. We can trace the use of such a seal to very early times in English history. Its keeper always was and is still the lord high chancellor of England — the highe it judicial officer of the crown — who origi- nally WAS one of the clerks or secretaries of the king, by whose order he affixed the seal to all official documents of royal command. Absolute faith is given to every paper that bears this seal. In Canada it is affixed to proclamations summoning, proroguing and dissolving parliament ; to writs of election, commissions of lieutenant-governors, judges, members of the privy council, departmental ministers, speaker and members of the senate, chief clerks of the two houses, deputy minis- ters, and numerous other public officers ; and in short to all official and executive acts of the queen, done under the authority of the governor-general in council. All documents bearing the great seal must be counter- signed by a cro vvn officer or secretary of state. 10.— Dominion Coat of Arms. The arms of the Dominion are composed of the arms of the four original provinces — Ontario, Quebec, Nova Scotia and New Brunswick — quartered or combined in one shield, as is shown next page and on flag of gover- nor-general on another page (see below, p. 90). It is not unusual to add the armorial bearings of the other provinces that have been brought into the union since 1867* — Prince Edward Island, Manitoba and British * All the arms of the provinces are given in the Fourth Part of this work. DOMINION FLAGS. 89 Columbia — but this cannot be done without express Dominion Coat of Arms. royal authority, and until this is so ordered the correct and legal Dominion shield of arms is as stated above. 11.— Dominion Flags. The famous English flag commonly called the " union jack " is flown from all the fortresses and garrisons of Canada, whether under the charge of imperial military authorities or colonial militia forces. The union jack is a combination of three flags. The red cross on the white ground is for England, the white cross with the arms placed diagonally on a blue ground for Scotland, and the red cross with the arms placed die gonally on a white ground for Ireland. It is seen on the flags of Canada illustrated on the following page. go EXl'X'UTIVE POWER. The Dominion of Canada has also authority to dis- play on all public occasions a national flag, viz., the red or blue ensign, a flag of plain red or blue having the ^liPiiiiiiiiiismia; The Red Ensign of Canada. union jack in the upper " canton," or corner next the mast, and the Dominion coat of arms in the "fly'' or field of the flag. ^ Flag of the Governor-General. The red ensign is displayed at the opening and closing of parliament, and on national occasions. The blue DOMINION FLAGS. 9I ensign is a distinguishing flag of the government vessels of Canada ; the mercantile marine of the Dominion has a right to use the red ensign. The governor-general has authority to use a plain uni jn jack in the centre of which are the Dominion arms, surrounded by a garland of maple leaves and sur- mounted by a crown, as we show on the preceding page. 19-21 CHAPTER II. THE DOMINION GOVERNMENT : LEGISLATIVE POWER. I. Senate. — 2. House of Commons.—^. Speaker of tJie House of Commons. — ^. Officers of the Houses. We have now to review the nature of the functions of the senate and house of commons, who, with the queen (represented by a governor-general), constitute the parlia- ment of Canada. 1.— The Senate. Two houses always formed part of the provincial legislatures of British North America from 1791 until 1867, when Ontario, whose example has been followed by the majority of the other provinces of the confederation, decided to confine her legislature to an elected assembly and the lieutenant-governor. The upper house or senate of the Canadian parliament bears a name which goes back to the days of ancient Rome, and also invites comparison with the distinguished body which forms so important a part of the congress or national legislature of the United States ; but neither in its constitution nor in other respects does it resemble those great assemblies. Three great divisions of Canada, (i) Maritime Pro- vinces, (2) Ontario, and (3) Quebec, were in 1867 each given an equal representation of twenty-four members with the hope of affording a special protection to their [93] 94 LEGISLATIVE POWER. representative interests in the upper house. Since 1867 the entrance of other provinces and the division of the Northwest Territories into districts has disturbed this equaHty and brou<^ht the number of senators up to seventy-eight in all, but at no time can the greatest number exceed eighty-four, even should it be necessary to resort to the constitutional provision of the law allowing the addition of three or six new members to meet a grave emergency, such as a deadlock in a political crisis. The senators are appointed under the great seal of Canada by the governor-general on the recommendation of his privy council, and must be of the full age of thirty years, and have real and personal property worth four thousand dollars over and above their liabilities. The president or speaker of the house is appointed by the governor-general in council. In legislation the senate has the same powers as the house of commons, except with respect to bills or measures imposing taxes, or expending the public moneys which are the proceeds of taxes on the people. Such measures should commence in the lower or commons' house (see beloiv, p. 117) and the senate cannot even amend or make changes therein. Divorce bills are always presented first in the senate, but this is simply as a matter of con- venience ; it has no greater legal power in this respect than the commons. The senators of the province of Quebec must reside in the divisions for which they are chosen, or have their property qualification therein — a provision intended to maintain French Canadian repre- sentation in the upper house— but in the case of tKe other provinces the law^ simply requires that members reside within their province. If a member becomes bankrupt, HOUSE OF COMMONS. 95 or if he is absent for two sessions, or if he becomes a citizen of another country, or if he is convicted of crime, his seat will be declared vacant. 2.— House of Commons. It is in the commons or elected house of parliament that political power rests. Its majority makes and unmakes cabinets. No ministry can remain in office without its support and confidence. For some years the number of members representing all the provinces amounted to two hundred and fifteen, but by a law, passed in 1892 after the taking of the last census of the population of Canada, the representation has been re- arranged as follows : — Ple, section 4). 6 When a tenant or occupant of real property, who has been in possession of the same one year before being placed on the list, and pays a rental of $2 monthly, $6 quarterly, $12 half-yearly, or $20 yearly. 7 When a fisherman, resident in the electoral district and owner of real property and boats, nets, fishing gear and tackle, or share or shares in a registered ship to the actual value of at least $150. 8 When an Indian (except in Manitoba, Keewatin, British Columbia or the Northwest Territories, where the Indians have no votes) in possession and occupation of a distinct tract of land in an Indian reserve, the improvements on which are valued at fully $150, or who is otherwise quahfied under the law. The judges of all courts, whose appointments rest with the governor-general, cannot vote— that is to say, ail HOW ELECTIONS ARE HELD. lOi superior and county court judges. Revising officers, returning officers, and election clerks, all counsel, agents, attorneys and clerks of candidates who may be paid for their services, cannot vote in the electoral district in which they have been so engaged, but they may do so elsewhere. Deputy returning officers, poll clerks, con- stables and unpaid agents may vote. A returning offi- cer, in case the votes are equal between two candidates at an election — in other words, in a tie — can vote. Mon- golians or Chinese cannot vote (for Indians, see above^ section 8). Voting throughout the Dominion is by ballot ; electors can vote in more than one district when they are duly qualified to do so. 6.— How Elections are Held. General elections are held on the same day throughout the Dominion ; exception, however, is made in the case of such large, remote districts as Algoma and Nipissing in the province of Ontario, of Gaspe, Chicoutimi and Saguenay in the province of Quebec, and of Cariboo in the province of British Columbia, where the returning officers shall fix the day as the law provides — the object being to give all the electors in those constituencies full opportunity to record their votes. When a general election has been decided on at a cabinet meeting, the premier so advises the governor- general, and if the latter sees no constitutional objection (see above, p. ^6)^ parliament is dissolved by a procla- mation in the name of the queen, the head of the executive authority, who alone can summon, prorogue, or dissolve the legislature. Another proclamation authorizes the issue of the writs of election, or order to 102 LEGISLATIVE POWER. the returning officer in each constituency or district that elects a member, fixing the dale of the nomination of candidates. Any twenty-five electors (see franchise act, above, p. 99), may nominate a candidate for the house of commons by signing a paper in the form required by law, and depositing $200 with the returning officer, who shall return the same to the candidate in case of his election or of his obtaining at least one half of the votes polled in favour of the candidate elected, but otherwise the deposit goes into the public revenues. When there is no opposition to a candidate he is declared duly returned by the returning officer at the close of the time allowed for nominations. In case of an election, it takes place, except in the remote and thinly settled districts mentioned above (see p. 101), on the seventh day after nomination day, or on the following day when the seventh is Sunday or a statutory holiday. The places where the votes are taken are duly advertised under the law, and proper means taken to secure a full and correct poll. All votes are taken by ballot. In each polling place or station there is a register of persons qualified to vote at the election, and when the name of a person presenting himself to vote is found therein, he receives a ballot paper from the deputy returning officer, on the back of which the latter has put his initials previously, so that they can be seen when the ballot is folded. On the counterfoil (see form of ballot beloiv, p. 103) attached to each ballot there is placed a number corresponding with one placed opposite the voter's name in the poll book. now ELECTIONS ARE HELD. 103 The following is now the legal form of a ballot paper for the dominion elections : " Dominion Ballot Paper. '* Election for the electoral district of 18 ■ HHHHHIHHHH HB^V^^H 1 DOE John Doe, Township of Nepean, County of Car- leton, yeoman. W J ■ HilHHHHIHI^Hl ^^^Bi^^^B 1 2 KOE Richard Roe, of Town of I^rescott, County of Gren- ville. Merchant. wL ^ H ■ HUHHHHHi^HiHi ^^^^pl^^^B 1 3 .STILES Geoffrey Stiles, of 10 Sparks Street, Ottawa, Physician. t J ■ HHIHHIHIHI^Hl ^^^HI^^^H 1 4 STILES John Stiles, of 3 Elgin Street, Ottawa, Barrister- at-law. t J 1 HHHHBHHHHi HHHh % The names of the candidates in a ballot paper are as in the nom- ination paper. All portions of the ballot paper are coloured dark except the divisions containing the names of the candidates and the ^irgular spaces opposite, which are to be white, as shown in the I04 LEGISLATIVE POWER. above form. The elector, as above, is supposed to have marked his ballot paper in favour of Richard Roe. The dotted line is a line of perforations for easily detaching the counterfoil on which the deputy returning officer has previously placed a number (see above, p. 102), The elector then proceeds alone into one of the com- partments of the station, where he can secretly mark his ballot paper. He makes a cross with his pencil on the white round part of the ballot paper opposite to the division containing the name of the candidate for whom he has decided to vote. In case there are more than one member to be returned for the district— as in the city of Ottawa, for instance — he makes a mark opposite each name of his chosen candidates. He then folds up the ballot paper so that the initials placed on the back by the returning officer can be seen without opening it. He must hand the paper, so folded, to the returning officer, who shall examine the initials and the number on the counterfoil, so that he may ascertain if it is the same paper he gave the elector. If it be so, he shall tear off and destroy the counterfoil, place the ballot paper in the ballot box provided for that purpose, and always kept locked during the voting, in the presence of the voter. At the close of the poll or voting, which is fixed by law from 9 o'clock in the morning, without interruption, until 5 o'clock in the afternoon of election day, the deputy returning officer in each polling place must count the ballots in the manner prescribed by law, and place his statement of the number of ballot papers and all papers in his possession relating to the election, in the ballot box, which will be locked and sealed and sent to the chief returning officer. The latter will open all the MEETING OF PARLIAMENT. 105 boxes and sum up the votes for each candidate as given in the statements of his deputies. He will declare the candidate having the majority of votes duly elected ; but in case of an equality or tie of votes, he shall give an additional or casting vote to decide an election. Immedi- ately after the sixth day after the final addition of votes of the respective candidates, unless before that time he receives notice there is to be a recount of votes by a judge, as provided by the law, he must transmit his return to the clerk of the crown in chancery at Ottawa, that a certain candidate or candidates have been elected. The clerk of the crown must publish the names of such mem- bers elect in the Canada Gazette or official paper of the Dominion as soon as he receives them. 7.— Meeting of Parliament. The proclamation of the governor-general ordering a general election (see above, p. 10 1) sets forth the date w^hen all the writs of election must be returned by the returning officers to whom they have been sent. Parlia- ment is called together for the " despatch of business " in another proclamation from the governor general by the advice of his council. The crown's action is guided in this respect by the provision in the constitutional act of 1867 that there must be a session of parliament once at least in every year. In other words, twelve months cannot pass between the close of one session and the beginning of another session of parliament. The length of a parliament, that is to say, of all its sessions — can- not exceed five years altogether. But the crown may dissolve at any time during the five years when it I06 LEGISLATIVE POWER. is deemed expedient to appeal to the people, but this power should not be rashly or indiscreetly exercised. 8.— Elections after a General Election. In the foregoing paragraphs I have given some ex- planations as to the way a general election is conducted. In case a member, after a general election, resigns or dies, or his seat is declared vacant by a court of law (see beloiv, p. 107), the crown does not issue a writ of election until the speaker of the commons, or other authority fixed by law, has issued a warrant— that is, an order to the clerk of the crown in chancery to issue a writ for an election. This writ goes to a returning officer appointed, as in all cases, by the governor-general in council. The proceedings with respect to nomination, election, voting by ballot, certificate of return of successful candidate, are the same in a special case as in that of a general election, described above. 9.— Oath of Allegiance. All members elected to the house of commons, as well as senators appointed by the governor-general, are required by the law to take the following oath of allegiance before they can sit in either house of parlia- ment : — " I, A.B., do swear that I will be faithful and bear true allegiance to her majesty Queen Victoria." Each new^ member of the senate and commons signs a roll with his name after taking the oath. The clerk and certain officers of the two houses are authorized by a commission from the governor-general to administer this oath. INDEPENDENCE OF PARLIAMENT. lO/ 10.— Laws Respecting Independence of Parliament and Corrupt Practices at Elections. The laws for the preservation of the independence of parliament and the prevention of corrupt practices at elections are very strict, and practically in principle and details those in force in England. The acceptance by a member of the house of commons of an office of emolument or profit from the crown shall thereby vacate his seat. Members of that house, when called to the government as heads of departments, must at once resign their seats and be re-elected, though an exchange of offices can take place between ministers after their election under the conditions laid down in the law. All officers of the public service and contractors with the government are forbidden to sit in parliament — an exception being made, as in England, of officers in the military service. Since 1874 the house has given up its jurisdiction over the trial of controverted or disputed elections, which previously had been considered by committees exposed to all the insidious influences of purely political bodies. The courts in the several provinces are now the tribunals for the trial of all such contested elections ; and the results have so far in Canada, as in England, been decidedly in the public interests. The laws for the prevention of bribery and corruption are exceedingly strict; and members are constantly unseated for the most trivial breaches of the law, often committed by their agents through ignorance or carelessness. The expenses of candidates must be published by their legal agents after the election. The whole intent of the law is to make elections as econoniical I08 LEGISLATIVE TOWER. as possible, and diminish corruption. A candidate may- be disqualified from sitting in the commons, or voting, or holding any office in the gift of the crown, for seven years, when he is proved personally guilty of bribery, and the voters in a constituency may be also severely punished when corruption is proved against them. CHAPTER IV. THE DOMINION GOVERNMENT: LEGISLATIVE POWER — Continued. II. Methods of Conducting Business and Debate : Motions^ Debate^ Adjournmetit, Divisions, Petitions^ Previous Question, Bills, Money Matters, The Budget, Going into Supply, Select Committees,— 12. Prorogation. 11 —Methods of Conducting Business and Debate in Parliament. The methods of business which the houses follow are intended to promote the despatch and efficiency of legislation. Their rules and usages are, in all essential particulars, derived from those of the English parliament. On the day parliament has been summoned by the crown to meet, the governor-general, either in person or by deputy — generally the chief justice of Canada, or other judge of the supreme court of Canada — proceeds to the upper chamber and there, seated on the throne, reads in the two languages the speech, in which his government set forth the principal measures which they purpose to present during the session. This speech, which is generally a concise and short document, is con- sidered as soon as possible in the two houses. As soon as the formal answer to the address has been passed, the houses proceed to appoint the committees, and commence the regular business of the session. The proceedings commence every day with prayers, taken [109] no LECISLATIVE I'OWER. from the Church of Enj^land liturj^y, and are read by the speaker of the commons in English or French according to his nationaHty, and by a paid chaplain in the senate. The rules of the two houses do not vary much with respect to the conduct of business. THE FOLLOWING LS A SUMMARY OF THE LEADING RULES AND USAGES OF PARLIAMENT : — Motions. — When a member wishes to obtain the opinion of the house on a question, he gives notice of a motion which appears after two days on the daily order of business. It must state clearly the nature of the question, and be seconded by another member. When it has been proposed, or in other words read, by the speaker from the chair, it is open to amendment and debate. An amendment is also a motion, but no notice need be given of it. Only two amendments to a motion can be under consideration at one time, but if one is rejected by the house another can be proposed, provided it is not the same as that on which the house has already expressed its opinion. Debate. — The rules with respect to debate are neces sarily strict. No member can speak except to ix motion which is in regular form before the house — thav is to say, read by the speaker from the chair, when it becomes a " question " for debate. A reply is only allowed, by courtesy, to the member who has proposed a distinct motion or question, and not to one who has made an amendment. But directly a new question has been proposed, as " that this house adjourn," "the previous question," or an amendment, members METHOD OF HUSINKSS. Ill are allowed to speak again, as the rule only applies strictly to the prevention of more than one speech to each separate question proposed. Members, as a rule, sit with their hats on or ofif as they may please, but the moment they rise to speak they must uncover and address themselves to the chair. If any member should inadvertently say "Gentlemen," instead of "Mr. Speaker,'* he will be called to order, though in the senate a speaker addresses himself to " Honourable Gentlemen." Whilst a men:ber is speaking no one is allowed to interrupt him, except with his own consent, or he has infringed a point of order, and no one should pass between him and the chair, because he is supposed to be addressing him- self particularly to the speaker. Any offensive allusions against the house, or any member thereof, are not per- missible. No member must be referred to by name, but every one disappears for the time being under the title of "honourable member for Toronto," or whatever the name of his constituency may be, and this rule, like so many others, has for its objects the repression of per- sonalities, and the temperate, calm conduct of debate. No reflection must be cast on the upper house. Many other rules exist, having for their object the keeping of debate within moderate bounds, but it is not possible to review them in a brief sketch of this character. Adjournment of House or Debate. — The motion " That the house do now adjourn" is always in order, and if carried sets aside the question under discussion. The motion " That the debate be adjourned^' is also in order when a "question" is under debate, and if it is carried the " question " goes over until another day. 112 LEGISLATIVE POWER. But if a motion for the adjournment of the house or of the debate is lost, then the debate on the question con- tinues as if the former had never been made. But these motions can be renewed when a new question or motion is proposed at the same sitting of the house. Putting the Question and Dividing the House. — When the debate on a motion or question is at an end, the speaker calls for the opinion of the house. He " puts " the question in this way : he will first read the motion and then say : "Is it the pleasure of the house to adopt the motion (or amendment as the case may be)?" Those who are in favour of the motion (or amendment) will say "yea" (" content " in the senate) ; those who are of the contrary opinion will say "nay" ("non-content" in the senate). Members then call out "yea" or "nay" ("content" or " non-content " in the senate), and the speaker will decide from those voices — "I think that the 'yeas' (' contents ') have it," or " I think that the * na}'s ' (' non- contents ') have it." Or, if he is in doubt, he will say, " I cannot decide. " Then a division takes place. Members are called in by the serjeant-at-arms and messengers, and when they are in their places the speaker again reads the question and says : " Those who are in favour of the motion will stand up. A clerk then calls the name of each member as he stands up in his place, and it is recorded by the chief clerk at the table on a printed list before him. When the " yeas " are all recorded in this way, the speaker METHOD OF BUSINESS. II3 calls upon the "nays" to rise, and when they are all duly entered, the chief clerk counts up the votes on both sides, and calls out the total number. The speaker then declares the question " lost " or " carried," accordinsr as the house has decided by the number of votes recorded. If there is a main motion or first question, an amend- ment thereto, or second question, and also an amend- ment to that amendment, or third question, the speaker takes the opinion of the house, first on the amendment to the amendment, or third question ; second, if that be lost, then on the amendment, or second question, and third, if that be lost, on the main motion or first ques- tion proposed to the house. Petitions. — Every person has a right to petition parlia- ment in respectful language on any question which comes within the right of parliament to deal with. Such petitions are presented by a member in his place, and must be signed by the person petitioning on the same sheet containing the prayer of the petition. If there are more than three petitioners then the names of three must appear on the sheet having the prayer. Every signature must be written by the person applying to parliament, but the petition itself may be printed in French or English. No appendices or papers can be attached thereto ; no words can be rubbed out, or written between the lines. Every petition to the two houses should commence with this form : " To the honourable the senate (or house of commons, as the case may be) in parliament assembled. **The petition of the undersigned humbly sheweth." 8 114 LFXilSLATIVE POWER. Then follows the nature of the petition. The conclusion should be a prayer, or a statement shortly summing up the previous part in these words : " Wherefore your petitionerb humbly pray that your honourable house will (here sum up object of petition). "And your petitioners as in duty bound will ever pray." Then come the signatures. In case a petitioner requires a grant of money from the government he should send a petition, not to the house, which cannot receive such petitions, but " To his excellency the governor-general in council," etc. This memorial or petition should follow the foregoing form. It should be sent to the member for <-he electoral district interested, to forward to " The honourable the secretary of state for Canada, Ottawa." or the petitioner can send it direct himself to the minister in question. Petitions, however, framed in general terms, and not asking a money grant in direct terms, can be sent to the two houses through a member. Previous Question, — This proceeding is an ingenious, though to many persons a perplexing, method of pre- venting an amendment being moved to a motion, and of coming to or avoiding a direct vote on that motion. It is proposed in the form, "That the question {i.e., the motion undci consideration) be noiu put." The debate then continuf^- as before on the original or main question, and when it is concluded a vote is taken on the " pre- vious question," as just stated. I f the " previous question " is decided in the affirmative, a vote must be taken METHOD OF BUSINESS. II5 immediately on the original question. If the " previous question" is decided in the negative, no vote can be taken on the original question, which disappears for the time being, since the house has decided by its v^te that the question shall not noiv be put. The important distinction between the " previous question " in the Canadian parliament and the United States con- gress is that in the latter debate is closed when it is ordered, while in the former body discussion still con- tinues on the question at issue. Bills. — A mere resolution of the house only binds itself, and when it is necessary to make a law obligatory upon all the people of Canada, a bill must be introduced, and passed through several stages in the tv/o chambers. Then it receives the assent of the queen, through the governor-general, and becomes a statute or legal enact- ment. A bill is, generally speaking, divided into several distinct parts : (i) the title ; (2) the preamble and state- ment of the enacting authority ; (3) the body of the act, consisting of one or more propositions, known as clauses or sections; (4) the schedules— the latter containing legal forms, documents, etc., mentioned in the body of the bill, and only necessary in certain cases. Bills are either public— -th^i is to say, dealing with matters of a public or general nature ; or private~\h^i is to say, relating to the affairs of corporations, companies, or individuals. The former class are introduced on motion in the ordinary way, " That leave be given to introduce a bill " (here follows title) ; but the latter must be brought up after a petition and a notice in the Gazette and local papers in accordance with strict rules, intended to give all persons Il6 LEGISLATIVE POWER. interested in the scheme full knowledge of the proposed legislation. Private bills, when presented, must also be rigidly subject to the scrutiny of select committees for the reason just stated ; and these committees consequently are clothed with a certain judicial character in cases of controversy. But all bills, public and private, must be read three limes in each house, as well as considered in committee of the whole. The second reading is the stage when the principle or policy or necessity of the measure is discussed in the case of public bills — though not necessarily so as respects private bills — while the committee of the whole allows a free and full discussion of the clauses or provisions, without a limitation of the number of speeches on one question or motion. When a bill has passed the commons it is sent to the senate for its agreement, and as soon as that body has also subjected it to the stages mentioned above, it is ready for the assent of the crown. In case of amendments by one house they must be agreed to by the other. If there is no such agreement, the bill drops for the session. As a rule, an interval of a day should elapse between the different stages of a bill, especially when it involves a tax or money vote. When it is finally passed and becomes law, it bears the signatures of the clerks of the two houses and of his excellency the governor- general on the back. Money Matters. — The most important duties of the house are in connection with money matters. Here the constitution and the rules of parliament have imposed many guards and checks upon hasty expenditures or the imposition of taxes without due notice and consideration. METHOD OF BUSINESS. II7 By the Union Act any measures for appropriating any part of the public revenue, or for imposing any tax or impost, must originate in the house of commons. The house itself is restrained by the same act. It cannot 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 the house by a message of the governor- general." A rule of the house itself declares that if any motion be made in the house for any public aid or charge upon the people, " the consideration or debate thereof may not be presently (immediately) entered upon, but shall be adjourned until such further day as the house shall think fit to appoint ; and then it shall be referred to a committee of the whole house before any resolution or vote of the house do pass thereon." It follows from what precedes that no private member is permitted to propose a dominion tax upon the people, or to introduce a bill providing for a public grant ; such measures must be commenced by ministers of the crov/n in the shape of resolutions which are to be considered, in committee of the whole, and when adopted form the foundation of a bill. The committees of supply and ways and means are the constitutional mode of providing for public expendi- tures. These committees are appointed at the beginning of every session, when an address has been passed in answer to the governor's speech. As soon as the com- mittee of supply has been formed, and the government are ready, they bring down a message from his excel- lency with the estimates of the sums required for the Il8 LEGISLATIVE POWER. public service for the next financial year, which com- mences on the 1st of July and ends on the next 30th June. These estimates contain several hundred votes arranged in the order of the various public services. For instance — expenses of departments of government, militia, peniten- tiaries, administration of justice, immigration, Indians, public works, railways and canals, quarantine and the nu- merous other subjects for which parliament votes annu- ally large sums of the public money. These estimates contain the expenditures for the current and the previous year in parallel columns, for purposes of comparison, and it is the duty of the minister responsible for a particular expenditure to give full explanations on the subject when they are demanded by the house. As every vote is carefully considered a very considerable part of the session is occupied by debates on this important com- mittee, over which a permanent chairman, who is also the deputy speaker, or another member in his absence, presides. The rules for proceeding in the committees of supply and ways and means are precisely similar to those observed in other committees of the whole house. Mem- bers are not confined to one speech, but may address the committee as often as they please on a particular reso- ludon. The chairman acts as speaker and decides all questions of order. After the budget (see next page) is formally before the house, and the leading members on both sides have made their speeches on the commercial and financial state of the country, the committee of supply meets regularly and disposes of a large amount METHOD OF BUSINESS. IIQ of money at every session ; but every vote is very care- fully scrutinized and the fullest explanations are demand- ed from the government, who, on such occasions, have to perform the most difficult and wearisome part of their legislative duties. Resolutions agreed to in committee are leported to the house, but they are not received until a later day. When the committee of supply has finished its labours, and all the money votes have been adopted by the house, the committee of ways and means passes certain resolutions which provide for the grants shown to be necessary by the first-mentioned committee ; and then a bill, called the supply or appropriation bill, is introduced by the government to carry out the resolu- tions. When this important bill has passed the usual stages, it is sent up to the senate, where, however, it is never altered, in accordance with constitutional usage. On its return to the commons, it is carried up by the speaker to the senate chamber. When his excellency has assented to the bills passed by parliament during the session (always in the queen's name), the speaker of the commons addresses his excellency, and asks for an assent to the supply bill, and this assent is granted with the usual formula : "In her majesty's name, his excellency the governor-general thanks her loyal sub- jects, accepts their benevolence, and assents to this bill." The Budget. — When the estimates have been brought in it is the duty of the finance minister to make his financial statement, or, in parliamentary phrase, present the " budget." This familiar word is derived from the French and means "a bag;" in making his statement, the finance minister opens the money bag of the people, 120 LEGISLATIVE POWER. as it were, and shows them its contents, and what is most important hoiv best to fill it. He will on this occasion review the expenditure of the past, and esti- mate that for the following year, give his opinion on the financial situation, and lay before the house a state- ment of any scheme of taxation that the government may have decided on, or of any changes that may be deemed necessary in the existing tariff. One of the most important and interesting debates of the session generally takes place after the delivery of this speech. Questicis and Motions on going into Supply. — From the beginning of the session, members ask questions of the government on every imaginable public topic, and make formal motions for papers relating to matters of general or local interest. All such motions and inquiries are made after two days' notice ; for the rules are very properly framed so as to prevent surprises, and give the house due information of the business to come daily before it. But in the Canadian house there are certain methods which enable members to move motions or ask questions without number, and even without notice. It is always open to a member to bring up an important question immediately — except, of course, when there is a subject under consideration — and debate it at any length on a motion for the adjournment of the house. Then, as soon as committee of supply is moved on any day, a member may make a motion on any question he wishes, unless it refers to the votes to be discussed in supply. As the rules do not permit any amendment to be made to a motion at such a stage, "the previous ques- tion," in the English parlia'nentary sense, is practically in force and it is possible to get a direct vote on an issue, METHOD OF BUSINESS. 121 without the evasions that amendments offer on other occasions. While in the case of all bills and other motions, amendments must be relevant to the question members can here bring up any subject they please. This is a practice which has its historical origin in the fact that in old times, when the English parliamentary system was developing itself, the people's representatives laid down the principle that the king must redress their grievances before they should grant him the supply he asked from the nation. Those times have long since passed away and the people now fully control all taxes and expenditures, but the crown still asks for money through the ministers, and the commons grant it in due form. It is no longer necessary to threaten the crown with a refusal of supplies unless the people's grievances are redressed ; but still they can refuse it to an unfaithful govern- ment should the necessity arise. As a matter of fact, should the government be defeated in a session before supply fs voted, the house would pass only such votes as are necessary to meet the actual wants of the public service, and leave the whole question of supply open until the crisis is over and there is in office a ministry which has the confidence of the house and country. Select Committees. — Much of the business of the two houses is first discussed and deliberately considered in small bodies of members, varying in number, and chosen on a motion duly made and seconded. Bills, public and private, are sent to these committees, which must report for or against them in all cases. In these select bodies, no bill or question can be considered except it is referred to them by the house. Members can speak as often as 122 LEGISLATIVE POWER. they like, but otherwise the rules of debate in the house itself prev.iil. Questions are put as in the house, and the chairman, who is always elected at the first meeting, only votes in case of a tie, eft equality of votes. In private bill (see above^ p. 115) committees, however, the chairman can vote as a member, and give a casting vote when there i.i a tie. All committees must report to the house the result of their conclusions on a bill or other subject. Witnesses can be examined under oath when necessary. 1 2. — Prorogation . When the business of parliament is closed, the gov- ernor-general comes down and assents to the bills as stated above (p. 116). He then reads a speech shortly reviewing the business of the session, and when he has finished, the speaker of the senate rises and says : " It is his excellency the governor-geneial's will and pleasure that this parliament be prorogued until (date), to be then here holden ; and this parliament is accordingly prorogued (date)J'^ The commons then retire, and the session is at end according to law. If parliament is not called together " for the despatch of business" by the date mentioned in the foregoing speech — a very unlikely event under ordinary circum- stances — a royal proclamation is issued from time to time in the Canada Gazette, further proroguing the legislature. The legal effect of a prorogation is to put an end to all bills and other proceedings of parliament in whatever state they are in at the time, and they must be commenced anew, in the next session, exactly as if they had never been begun. CHAPTER V. THE DOMINION GOVERNMENT: LEGISLATIVE POW KR ~ Co fi/ in uirf. ij. Distribution of Legislatiite Powers under a Federal Union. — 14.. Subjects of Dominion Legislation. 13.— Distribution of Legislative Powers. An essential characteristic of a federal union is the division or distribution of legislative powers between the government of the union as a whole, and the several countries that compose that union. Accordingly, the British North America Act or constitution of Canada gives to the dominion or central government at Ottawa the control of certain matters of a general or national character, and to the provincial governments the control of certain matters of a provincial or local importance. When we come to consider the nature of the provincial governments (see below, p. 158) I shall set forth the subjects under their control. At present we have under consideration the duties and powers of the dominion government. 14.— Subjects of Dominion Legislation. The 91st clause of the constitution gives to the parlia- ment of Canada the sole or exclusive right of making laws on the following subjects : 1 . The public debt and property. 2, The regulation of trade and commerce. [123] 124 LEGISLATIVE I'OWEK. 3. The raising of money by any mode or system of taxation. 4. Tlie borrowing of money on the public credit. 5. Postal service 6. '['he census and statistics. 7. Militia, military and naval service and defence. 8. The fixing and providing for the salaries and allowances of civil and other officers of the government of Canada. 9. Beacons, buoys, lighthouses and Sable Island. 10. Navigation and shipping. 1 1 . Quarantine and the establishment and maintenance of marine hospitals. 12. Sea-coast and inland fisheries. 13. Ferries between a province and a British or foreign country, or between two provinces. 14. Currency and coinage. 15. Banking, incorporation of banks and the issue of paper money. 16. Savings-banks. 17. 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 aliens. 26. Marriage and divorce. [But the provincial governments con- trol the solemnization or celebration of marriage, see below, p. 1 59]. 27. The criminal law, except the constitution of the courts of criminal jurisdiction, but including the procedure in criminal matters [see below, p. 1 66]. 28. The establishment, maintenance, and management of 'peni- tentiaries. SUnjtXTS OK DOMINION LEGISLATION. I25 29. Such classes of subjects as are expressly excepted in the enumeration of the classes of suojects by this act assigned exclu- sively to the legislatures of the provinces. The subjects just mentioned in sub-section 29 are (see beloiv, p. 159) lines of steam or other ships, railways, canals, telegraphs and other works and undertakings ex- tending beyond the limits of a province, o** declared to be " for the general advantage of Canada," or of more than one province, by the Canadian parliament. A steamer running from Montreal to Pictou, in Nova Scotia, a railway between Nova Scotia and New Bruns- wick, a bridge over the Ottawa river, which divides the two provinces of Ontario and Quebec, are among the works that come under this clause. In order to lessen doubts, the constitution also pro- vides that any of the foregoing subjects shall not come within the class of matters of a local or private character over which the provincial governments have sole legisla- tive power (see belotv, p. 158). In the case of other matters not coming within the class of subjects belong- ing to the provinces, the parliament of Canada has alone power to make laws for the peace, order and good government of the Dominion. In short, the respective powers of the parliament of the Dominion and the legislatures of the provinces are stated in express terms in the constitution ; any subject that does not fall within the powers of the provincial governments belongs to the Dominion. This is intended to prevent disputes, as far as possible, as respects the powers of the separate governments. The subject of education belongs exclusively to the provinces, but in case certain rights enjoyed by religious 126 LEGISLATIVE POWER. minorities in the provinces are prejudicially affected by the laws of those provinces, the parliament of Canada may interpose and pass such legislation as will remedy an act of injustice that the provincial governments refuse to repeal. This is, however, a subject which falls pro- perly to a later page (see below, p. i6o). The dominion and local governments also exercise certain rights in common. The dominion parliament may make laws on the subjects of agriculture and immi- gration for any and all of the provinces, and each legislature may do the same for the province over which it has jurisdiction, provided no provincial act is in conflict with any dominion act. Both these authorities are equally interested in the promotion of matters so deeply affecting the development of the natural resources of all sections The provinces, excepting Manitoba, have the control of their lands and mines, while the Dominion is interested in the opening up of the vast territorial area which it has in the Northw^est. The dominion government have, by the constitution, a general power of vetoing or disallowing any act of a legislature within one year after its receipt from the government of a province. The conditions under which this important power should be exercised are explained on another page (see below, p. 162). The constitutional law, as I have shown, has been framed with the object of setting forth, as clearly as possible, the powers given to the dominion and provincial governments, but the experience of twenty- seven years shows no written law, however carefully framed, can prevent differences of opinion as to its SUBJECTS OF DOMINION LEGISLATION. 12/ meaning. The dominion government may read the language of a section in one way, and the provincial government, or the person whose rights are in question, another way. Language, at best, is imperfect when it comes to define rights. In the following section I shall explain the methods provided by the constitution for the removing of doubts as to the meaning of its provisions, preventing conflicts between the dominion and provincial authorities, and at the same time doing justice, as far as possible, in all cases where rights are affected. CHAPTER VI. THE DOMINION GOVERNMENT: JUDICIAL POWER. 7. Methods of Iftterpreiing the Written Constitution.— 2. Supreme Court.— 3. Exchequer Court,— 4. Admiralty Court.— s. Judi- cial Tenure of Office, l.-Methods of Interpreting- or Explaining the Written Constitution. The federal union of Canada derives its existence from a constitution, known as the British North America Act, just as a municipal body, or any incorporated com- pany, obtains its powers from the law bringing it into existence. Consequently every power, executive, legis- lative or judicial, exercised by the dominion or provin- cial governments, is subject to the constitution. This constitution comes under the conditions applied to all statutes or laws. Its meaning must be construed or explained by the judges who are its authorized inter- preters. The judges of the courts of the provinces, from the lowest to the highest courts, can and do constantly decide on the constitutionality of statutes passed by the legislative authorities of the Dominion. They do so, in their capacity as judges and interpreters of the law, and not because they have any special commission to 'that effect, or are invested with any political duties or powers by the constitution. The judges of the provinces are appomted and paid by the dominion government, but [128] THE SUPREME COURT OF CANADA. 129 the constitution, maintenance and organization of their courts are placed under the provincial governments. The judges decide on cases that arise under the laws govern- ing their respective provinces. Such cases frequently relate to the constitutional rights of the Dominion and of a province. The decision of provincial judges is not final, for the constitution has provided for the establish- ment of a supreme court of the Dominion, to v/hom appeals can be taken from the inferior courts of the provinces. 2.— The Supreme Court of Canada. In 1875 it was deemed advisable to pass an act providing for the establishment of a supreme court of Canada. But this court is only a general court of appeal for Canada in a limited sense, since the existing right of appeal in the various provinces to the privy council has been left untouched. Nor can it be called a final court of appeal for Canada, since the privy council of England entertains appeals from its judgments (see above, p. 65). This court consists of a chief justice and five " puisne judges," — puisne meaning simply inferior in rank — two of whom, at least, must be appointed from the bench or bar of the province of Quebec — a provision intended to give the court the assistance of men specially acquainted with French Canadian law. Under the conditions set forth in the act, an appeal can be taken to this court from the highest court of final resort in a province in civil and criminal cases. The decisions of the superior courts of the provinces in cases of controverted elections may also be reviewed by the court. In Quebec cases the appeal must alwa)'s come from the court of 9 130 JUDICIAL I'OWER. queen's bench, and the matter in dispute must amount to at least $2,000, unless the validity of a statute of the Dominion or of a province is in question. The governor-general in council may also refer to the supreme court, for hearing or consideration, important questions relating to legislation of the provinces, or of the Dominion, education, or any other matter of a con- stitutional nature on which it is necessary to obtain a judicial opinion. Constitutional controversies between the Dominion and any province, and between the pro- vinces themselves, can be referred to the court when the legislature of a province has passed an act providing for such useful references — useful, because they help to pre- vent friction in the working of the federal machinery. This court is intended to be, as far as practicable, a court for the settlement of controversies that arise in the working of the constitutional system of Canada. The judicial committee of the privy council entertains appeals from the supreme court only when the case is of gravity, involving questions of public interest or some important point of law, or is of a very substantial character. 3.— The Exchequer Court of Canada. Another court having authority throughout the Dominion is the exchequer, which originally formed part of the supreme court of Canada. The two courts were separated in 1887, and a judge especially appointed by the governor-general in council to preside over the exchequer court. The name of this court carries us back to early English times. The king's treasury was in charge of an important officer, called " hoarder," or treasurer, because he took care of the " hoard " or royal ADMIRALTY COURT OF CANADA. I^I supply of money. As the king's revenues increased in amount, and disputes grew up in connection with their collection and management, it was necessary to divide the duties between two departments, one administrative and the other judicial. The chancellor of the exchequer — the finance minister — is still the most important mem- ber of the cabinet of England. When the English courts of justice were formed out of the great council or supreme court of the king (see above, p. 57), questions affecting the revenue were referred to a committee or court called the exchequer, which derived its name originally from a chequered cloth which covered the table at which the accounts were considered, and suggested to the looker-on the idea of a game of chess between the taxpayer and the royal officials. The duties of the court grew in importance, and were extended to all suits or actions in which the crown was interested. The Canadian court has authority to hear and decide those cases in which the revenues or property, or other interests of the crown are involved. It hears claims against the dominion government when any person suffers injury from the construction or operation of a public work, and can award damages to such persons. 4.— Admiralty Court of Canada. The dominion government have also, under the authority of an imperial statute, conferred on the exchequer court the powers of an admiralty court to hear and determine all civil questions relating to con- tracts or claims in respect of necessaries and wages, and other matters arising out of navigation, shipping, trade and commerce, in Canadian waters, tidal and non- 13^ JUDICIAL POWER. tidal. The governor-general may appoint a judge of a superior court, or of a county court, or any barrister of not less than seven years' standing, to be a " local judge in admiralty " of the exchequer court in such districts as may be necessary for the purposes of the act. The provinces of Quebec, Nova Scotia, New Brunswick, Prince Edward Island and British Columbia constitute such districts. The maritime court of Ontario has been abolished, and the admiralty jurisdiction of the exchequer court is exercised in what is known as the Toronto admiralty district. 5.— Judicial Tenure of Office. The judges of the supreme and exchequer courts, and any other dominion courts, hereafter established, hold office, like all the judges of the superior courts in the provinces, during good behaviour, and can only be removed on an address passed by the senate and house of commons to the governor-general, after full investi- gation into any charges that may be made against them. In this way the judiciary is practically independent of political or popular caprice or passion, and able to dis- charge their high functions with fidelity and partiality. The judges of these supreme and exchequer courts are appointed from the superior courts of the provinces or from barristers or advocates of distinction and of at least ten years' standing at the bar. CHAPTER VII. THE DOMINION GOVERNMENT: REVENUE AND EXPENDITURE. I. Duties of Ci(sto7ns a?id Excise. — 2. Cost of Go7'er?i?nefit. — J. Consolidated Revenue Fund. — 4. Canadian Currency. 1.— Duties of Customs and Excise. I have now given my readers a summary of the principal duties of the executive, legislative and judicial departments of the Canadian government The question will now occur to every one who has followed me so far, How does this government meet its expenses? The answer is, chiefly by a system of taxation, presented and carried in the parliament of the Dominion in the man- ner described above (p. 116). The system is not direct taxation — that is to say, it is not a certain amount taxed, as in cities and other municipal divisions, on everyone's property and collected from the great body of the people individually. It is indirect taxation — that is to say, imposed on the goods brought into the country by merchants and traders, who alone pay the duties directly and add such charges to their expenses and necessary profits. These taxes are called " customs duties," from an old Norman French word, cousttinie^ meaning a customary or usual tax of the country, which has come to be generally applied to any duty on foreign goods* The people in the end, who are consumers of such goods, pay these duties to a greater or less extent. Competition among merchants tends to keep prices to the lowest [ 133] 134 REVENUE AND EXPENDITURE. point compatible with the profit which every merchant must make. In addition to the duties imposed on goods brought or imported from other countries, Hke spirits, tobacco, woollens, cottons, silks, hardware, furniture, pianos and the countless articles purchased by the people which make up the great proportion of dominion tax- ation, there is a large sum collected directly from persons engaged in the manufacture of be^r, whiskey, tobacco, and cigars, known as " excise duties " — the word excise coming from an old French word meaning an assessment or tax. Customs duties may be either ad valorem or specific ; the first meaning the levying of a certain per- centage of duty on the marketable value {ad valorem) of the goods at the original place of shipment, as sworn to by the owner or importer, and verified by the customs appraisers or valuators; "specific" meaning a definite or fixed duty collected on goods of a particular kind, or upon a specified quantity of a commodity, entered at the custom-house. In 1894 the duties collected on imports used in the country were $19,198,1 14 altogether ; the amount of excise duties was $8,381,088; other re- venues, from the sale of public lands, tolls on canals and other works, post office and other sources, amounted to $8,795,489. The total revenue consequently in that year was $36,374,691, mostly from customs and excise duties. I cite these figures simply to show the import- ance of such taxes in the government of a country. 2.— Oost of Dominion Government. These taxes and revenues arc necessary to meet : I. The charge on the public debt which was on the 30th June, 1894, $308,348,023. This is, however, the COST OF DOMINION GOVERNMENT. 135 gross debt, and from which are generally deducted certain assets or interest-bearing investments, loans, cash and banking accounts, which bring the net debt down to $246,183,029 at the same date. The debt has been prin- cipally created by the construction of public works, canals and railways ; subsidies to railways, assumption of provincial debts under the terms of confederation. 2. Legislation, senate and house of commons, franchise act, election expenses, etc. 3. Civil government, or salaries of governor-general lieutenant-governors, the departments of the public ser- vice, Northvvcst government, etc. 4. Public works, including buildings of all kinds, piers and harbours, experimental farms, etc. 5. Railways and canals. 6. Administration of justice, mounted police, light- house and coast service, militia and defence, immigration and quarantine, geological survey, superannuation, fish- eries, Indians, ocean and river steam service, peniten- tiaries, mail subsidies, post office, and a great variety of other services necessary for the government of the Dominion. The total ordinary expenditure in 1894 was $37,585,- 025, as against $13,486,092 in 1868, in the infancy of the development of the confederation and before the con- struction of public works of national importance. 3. —The Consolidated Fund of Canada. All taxes and other revenues of Canada are paid into the treasury in accordance with the law^ and form what 136 REVENUE AND EXPENDITURE. is generally known as "the consolidated fund of Canada," out of which are paid all the charges and expenses inci- dent to the collection and management of this fund, and all the expenses of government. These expenses are annually voted by parliament in the mode explained above (see p. 1 17). While certain sums are authorized annually by the appropriation act — which comprises the annual grants voted every session in supply — other payments are made under the sanction of statutes. These statutes, which are permanent and can only be repealed or amended by another act o(^ parliament, provide for salaries of the governor-general, lieutenant-governors, ministers of the crown, judges, and other high functionaries, whose com- pensation, it is agreed, should not depend on annual votes, though it is always competent for any member to move to reduce them in the shape of a bill, which may become an act or law if the two houses agree to pass it. All moneys are paid out of the treasury under certain forms required by statute. A thorough system of audit by a public officer, the auditor-general, who can only be removed on an address of the senate and house of commons to the governor-general, has the effect of preventing any public expenditure not authorized by parliament. Large sums are borrowed from time to time by the government on terms which must be ap- proved by parliament. 4.— The Currency of Canada. The treasury also issues a number of notes, of which the sum of four dollars is the highest denomination^ but the dominion issue in any one year may not exceed CURRENCY OF CANADA. I37 four million dollars, and the total amount issued and outstanding, at any time, may not exceed twenty-five millions, secured for redemption by gold and Canadian guaranteed securities. The banks of Canada may also issue notes — five dollars being the value of the lowest — the payment of which is secured, as far as possible, by making the pay- ment of the notes a first charge on the assets of a bank, and by other provisions of a well devised general bank- ing act intended to guard the monetary interests of the public. Canada has no " mint " or establishment to coin gold, silver and copper money. The Canadian silver and copper coin in general circulation has been " minted " in England for the use of this country. The silver coin in use are of the value of fifty, twenty-five, twenty (very few now), ten and five cents. Canada has no gold coin of her own. CHAPTER VIII. THE DOMINION GOVERNMENT : MILITIA AND DEFENCE. The Lritish North America Act places under the control of the dominion government the militia, naval service, and defence of Canada. The command-in-chief of the land and naval forces of and in Canada, however, continues to be vested in the queen. A department of the dominion government, called the department of militia and defence (see above^ p. 80), has the superin- tendence of this important part of the public service. Since confederation English troops have been removed from all places in Canada except Halifax, which is a strongly fortified military post, and the headquarters of the North if\merican squadron, under the command of a vice or rear admiral. On the Pacific side Esquimalt, on the island of Vancouver, is also being fortified, and will be garrisoned by imperial troops. The withdrawal of English troops to so great an extent from Canada has necessarily thrown large respon- sibilities upon the Canadian government since 1867 for the protection of a confederation extending over so immense a territory between two oceans. Canada has attempted to fulfil her obligations in this respect by the expenditure of a large sum of money during twenty-seven years for the drill, instruction and arming of an effective militia, drawn from the great body of the people. In this way a spirit of self-reliance has been stimulated [ 138] MILITIA AND DEFENCE. 1 39 from one end of Canada to the other, and on more than one emergency the national forces have proved their ca- pacity to secure peace and order and put down rebellion. By the law of Canada the militia consists of all the male inhabitants of Canada of the age of eighteen years or u[)wards and under sixty, not exempted or disqualified by law; the population being divided into four classes, as follows : The first class comprises those aged eighteen or up- wards and under thirty, being unmarried or widowers without children. The second class comprises those between the ages of thirty and forty-five, being unmarried or widowers with- out children. The third class comprises those between eighteen and forty-five, being married or widowers with children. The fourth class comprises those between forty-five and sixty. And those liable to serve shall be called upon in the foregoing order. The following persons are exempt from enrolment and actual service at any time : judges, clergymen and ministers of all religious denominations, professors in colleges and teachers in religious orders, persons engaged in the collection or management of the revenue, the wardens and officials of all penitentiaries and lunatic asylums, persons physically disabled, and any person being the only son of a widow and her only support. Half-pay and retired officers of the imperial forces, sailors actually employed in their calling, pilots during I40 MILITIA AND DEFENCE. the season of navigation, and masters of schools are exempt from service, except in case of war. Quakers, Mennonites and others may be exempted altogether under regulations prescribed by the governor-general in council. The militia is divided into active and reserve, land and marine forces. The land force is composed of corps raised either by voluntary enlistment or ballot. The active marine force shall be raised in the same way, and composed of seamen, sailors and persons whose occupa- tion is on vessels navigating the waters of Canada, and the reserve force, land and marine, consists of the whole of the men not serving in the active militia for the time being. The period of service in the militia is three years. The number of men to be trained and drilled annually is limited to forty-five thousand, except as specially author- ized, and the period of drill is to be sixteen days, and not less than eight days each year. The Dominion is divided into twelve military districts, in each of which a permanent military staff is main- tained, under command of a deputy adjutant-general. The permanent corps and schools of instruction consist of royal Canadian dragoons, royal Canadian artillery, garrison artillery and a royal regiment of Canadian in- fantry. The total strength of these permanent corps is limited by the militia law to a thousand men. The royal military college at Kingston, which is under the control of the militia department, was founded in 1875, and has proved on the whole a most successful institution. Of the total number of cadets who have Militia and defence. 14! graduated, a large number have been gazetted to com- missions in the imperial army. Four commissions are annually offered by the imperial government, and in 1888 six others were offered. Heretofore an imperial officer has been chosen from the regular English military force and given the rank of a major-general in Canada, to command the militia and supervise their instruction and equipment, under the control of the minister of militia, who is responsible to parliament for the efficiency of this department. So far no active marine militia has been organized in the Dominion, but the naval defences continue exclusively under the care of the imperial government. In the Northwest Territories peace and order have been se- cured for years by the employment of a most efficient body of mounted police (see Seventh Part), BIBLIOGRAPHICAL NOTE. My readers should consult the following i)ook.s on the nature and workino- of dominion government : Bourinot's Manual of Constitutional History (Montreal, 1884) ; his Canadian Studies in Comparative Politics (Montreal, 1890), and in the " Transactions of the Royal Society of Canada," 1892, 9,Qcuox\ 2 ',h.\s Par lianientary Government in Canada, in the "Papers of the American Historical Association "' (Washington, 1892) • his Federal Government in Canada, in "Johns Hopkins' University Studie. " (Balti- more, 1889). Dr. Todd's Parliamentary Go7>ernment in the Colonies, 2nd ed. (London, 1894), should be studied by advanced students. The works mentioned in tiie bibliographical note at end of the Second Part of this book (see above, p. 68) with reference to the cabinet and parliamentary government in England also apply to the dominion government. For a clear explana- *4^ MILITIA AND DEFENCE tion of the rules, usages and understandings which govern the practice of parhamentary government, see Professor Dicey's Law of the Constitution chap. XIV, 3rd ed. (London and New York, 1889). For rules and usages governing proceedings of legislative bodies, see Bourinot's Procedtire of Public Meetings (Toronto, 1894), Pp. 26-57. More anibiiious students can consult his largest work on Parliamentary Procedure, 2nd ed. (Montreal 1892), which also reproduces the author's short constitutional history men- tioned above (p. 42), with additions to end of 1891. The last chapter of this work should be read by students, since it is devoted to General Obser- vations on the Practical Operation of Parliamentary Government in Canada. Bagehot's work on the English constitution (see a/w, p. 69) is very valuable in this connection. The author may also refer to a paper of his own, published by the American Historical Association (Washington 1891), on Canada and the United States : a Study in Comparative Politics It shows the advantages which Canadians contend that their cabinet and parliamentary system of government possesses over the irresponsible system ol their neighbours in the United States. The best work that shows the inferiority of the congressional government of the republic compared with parliamentary government is that by Professor Woodrow Wilson, on Congressional Government (Boston, 1887). In the Canadian Almanac for 1894 (Toronto) there is an article by Mr ^ u^Tl^f °" '^'^ ^^""^^ ^''^ ^''''" «^ *^^^ Dominion and provinces, which will be interesting to those who wish to study the subject intelli- gently. In the same publication for 1895. there is additional information m an article on Imperial and Canadian Flags. For full information on Revenue and Expenditure, Trade and Commerce Mihtia and Defence, Customs and Excise, Public Debt, Currency and other matters relating to the government of Canada, reference must be made to the official "blue books," known as Public Accounts, Trade and Navigation Returns, Report of Minister of Militia, etc., and to the Statisti- cal \ ear Book of Canada, all of which are published yearly at Ottawa bv the Queen s Printer. ^ FOURTH PART The Provincial Governments CHAPTKR p^^^ I.— Executive Power. i^r II.— Legislative Power icc III.— Matters of Provincial Legislation 163 IV.— Judicial Power ,70 v.— VI.— Courts of Law ,77 VIL— Trial of Civil and Criminal Cases 197 VIII.— Provincial Revenues 211 run CHAPTER I. EXECUTIVE POWER IN THE PROVINCES. /. Introduction. — 2. Lieutenant-Governor.— j. Executive or Ad- visory Council.— 4. List of Executive Councils in the Provinces. —J. Provincial Arms.— 6. Elags of Lieutenant- Governors. 1.— Introduction. The provinces of Nova Scotia, New Brunswick, Prince Edward Island, Quebec, Ontario, Manitoba and British Columbia, are so many political divisions, all enjoying extensive powers of local government and forming parts of a Dominion whose government possesses certain national attributes essential to the security, successful working, and permanence of the federal union, estab- lished by the British North America Act of 1867. In all the provinces at the present time, there is a very complete system of local self-government, admin- istered under the authority of the British North America Act, by means of the following machinery : - A lieutenant-governor appointed by the governor- general in council ; An executive or advisory council, responsible to the legislature ; A legislature, consisting of an elective house in all cases, with the addition of an upper chamber appointed by the crown in two provinces only ; 10 [T45] S^' [146] THE LIEUTENANT-GOVERNOR. 147 A judiciary, composed of several courts in each pro- vince, the judges of which are appointed and paid by the dominion government ; A civil service, with officers appointed by the provin- cial government, holding office during good behaviour, and not removed for political reasons ; A municipal system of councils, composed of mayors, wardens, reeves and councillors, to provide for the purely local requirements of the cities, towns, town- ships, parishes and counties of every province ; A complete system of local self-government in every municipality of a province, to provide for the manage- ment and support of free schools for all classes of the people. 2.— The Lieutenant-Governor. ^ The lieutenant-governor, who holds his office in prac- tice for five years, is appointed by the governor-general in council, by whom he can be dismissed for '* cause assigned," which, under the constitution, must be com- municated to parliament. He is therefore an officer of the Dominion, as well as the head of the executive government of a province, and possesses, within his constitutional sphere, all the authority of a lieutenant- governor before 1867. He acts in accordance with the rules, usages and conventions that govern the relations between the governor-general and his privy council (see above, p. 82). He appoints his executive council and is guided by their advice so long as they retain the con- fidence of the legislature. In the discharge of all the executive and admini:-^trative functions that devolve constitutionally upon him and require the action of the 148 EXECUTIVE POWER. crown in a province, the lieutenant-governor has all the necessary authority. He can summon, prorogue and dissolve the legislature, make appointments to office, and perform all those executive acts by the advice of his advisory council which are necessary for the govern- ment of the province. The remarks given above with respect to the governor-general in council apply with equal force to the lieutenant-governor in council (see above y p. 83). 3.— The Executive or Advisory Council. The executive council, which is the name now given to the body of men composing the administration of each province, a name borrowed from the old provincial systems of government, varies from eight members in Ontario to five in British Columbia, holding, as a rule, various provincial offices as heads of departments. Their titles vary in some cases, but generally there is in every executive council an attorney-general, whose duties are to act as law adviser of the government and its depart- ments, enforce the law by prosecution in th' criminal courts, and perform other acts in connection with the administration of justice in a province. All the mines and minerals, public lands and forests thereon, except in Manitoba, belong to the provincial governments, which derive from them — especially in Ontario and Quebec — a large revenue. In each province, consequently, there is a commissioner of crown lands, whose duty it is to look after their sale, lease "limits" for the cutting of timber, supervise mining lands under special regulations, and exercise general authority over the public domain. « In Nova Scotia and British Columbia, where the mines and THE EXECUTIVE COUNCIL. I49 minerals are very valuable, there is a department speci- ally entrusted with the management of those sources of provincial wealth. In every province there is a minister generally called treasurer, whose special function it is to administer its financial affairs ; a commissioner to look after its public works ; a secretary and registrar to manage the correspondence of the government, register all com- missions under the provincial seal, as well as bonds and securities given by public officers. In some of the provinces there is also a minister who collects useful information relating to the agricultural, mechanical and manufacturing interests of the province, has control of model farms and agricultural colleges — wherever estab- lished, as in Ontario — and encourages all societies and exhibitions connected with the interests of agriculture, horticulture, fruit raising and dairying, and other indus- tries of the same class. In the Ontario cabinet there is also a minister of education, since that branch of the public service is of exceptional importance in that province in view of the great expenditure and large number of common and grammar schools, collegiate institutes, normal and model schools, besides the pro- vincial university in Toronto. All the members of the executive council, who hold departmental and salaried offices, must vacate their seats and be re-elected as in the case of the dominion ministry. The principle of ministerial responsibility to the lieutenant-governor and to the legislature is observed in the fullest sense. All the conventions and under- standings that govern the relations between the governor c/T O s >-] > < en [150] LIST OF EXECUTIVE COLINCILS. 151 general and his ministers apply with equal force to the relations between a lieutenant-governor of a province and his councillors (see above, p. S2), 3.— List of the Executive Councils in 1895. In British Columbia: — President of Council. Attorney-General (Premier). Chief Commissi jner of Lands and Works. Minister of Finance and Agriculture. ^ Minister of Education and Immigration. \ Provincial Secretary and Minister of Mines. In Manitoba: — \ President of Council and Minister of Agriculture (Premier). \ Railway Commissioner, Attorney-General and Land Commissioner. Minister of Public Works. Provincial Secretary. Provincial Treasurer. /;/ Ontario : — Attorney- General (Premier). Secretary and Registrar. Treasurer. Commissioner of Crown Lands. Commissioner of Agriculture. Commissioner of Public Works. Minister of Education. One member of Council without a department or office. In Quebec: — President of the Council (Premier). Commissioner of Crown Lands. Commissioner of Agriculture and Colonization. Attorney-General. Commissioner of Public Works. Treasurer. Secretary and Registrar. One member of Council without office. 152 EXECUTIVE rOVVER. //; New Brunsivick : — Attoiney-( General (Premier). Provincial Secretary. Surveyor-General. Chief Commissioner of Public Works. Solicitor-General. Two members of Council without office. In Nova Scotia : — President of Council and Provincial Secretary (Premiei). Attorney-General. Commissioner of Works and Mines. Four members of Council without office. In Prince Edward Island : — Attorney-General (Premier). Commissioner of Public Works. Provincial Secretary and Treasurer. Five members of Council without office. This list shows tliat the premier generally chooses the attorney-generalship when he belongs to the legal profes- sion, but there is no rule on the subject, and he may select any position he prefers. In five of the provinces there are councillors who have no departmental office, and consequently receive no special salary, their ex- penses while attending meetings of the council being alone paid. The crow^n has always the right to summon whom it pleases to the cabinet. Not unfrequently, as it will be seen by reference to the offices bracketed in the foregoing list, a member of the council will be entrusted with the responsibilities of more than one department of the government. Executive councillors are called " honourable," but only while they are members of the council. FLAGS OF TIIK LIEUTENANT-GOVERNORS. 153 4.— Provincial Seals and Coats of Arms. All the provinces have arms of their own, which appear on their great seals, or on any ensigns they have a right to use. Each provincial seal is composed as follows : In the centre the royal arms, without supporters, but surmounted by the crown ; surrounding the shield, the motto " Dieu et mon droit." Below this shield a somewhat smaller one, containing the provincial coat of arms. Surrounding the whole : "The seal of the province of Ontario " (or whatever the province may be). On the following page we give a sketch of all the arms of the provinces as they are composed at present. 5.- Flags of the Lieutenant-Governors. The lieutenant-governors of the provinces have each a flag, displaying the provincial arms (see p. 154) sur- rounded by a wreath of maple leaves— but without the crown — on the white ground of a union jack. " TWE LIEUTKNANT-GOVERNOR OF ONTARIO, »■ . Ill l l l t'lll J AffMS orOA/77\RfO. Jl7?M^ orQunBTc, JLrm^ orI/j:w2^Nu/^^^v/cK, 'AjfMS urJ/o\/A Scot/ A • ^ ^ 7 PARVASueiNCENTL JJpi^S OF o/f^MS OF ^RMS OF Na a// toba . Br/ T/5H Coi omb/a . P.E. I si a nd . [154I CHAPTER II. LEGISLATIVE POWER IN THE PROVINCES. I. Lecrislatures. — 2. Number of Members therein. — j. Voter ^ Qualifications in all the Provinces. 1.— The Legislatures. The legislatures of the provinces are composed of a lieutenant-governor, a legislative council and a legislative assembly in the provinces of Nova Scotia and Quebec ; of a lieutenant-governor and a legislative assembly only in the other five provinces. In Prince Edward Island, however, there is an assembly elected on a basis different from the other provinces. The legislative council, elected for many years on a property qualification, was abolished as a separate house in 1893 and united with the assembly. The fifteen constituencies now return each a councillor elected on a real estate qualifica- tion, to the value of $325 ; and a member elected on the general franchise (see beloiv, p. 161) for the province. The legislative councillors in Quebec and Nova Scotia are appointed by the crown, and must have a property qualification. The president or speaker is also appointed by the lieutenant-governor in council and holds office during pleasure. Members of the council retain their positions during life, unless they become bankrupt, convicted of crime, absent for two sessions consecutively (in Quebec only), or otherwise disqualified [155] 156 LEGISLATIVE POWER. by law. The council of Quebec consists of twenty-four members ; that of Nova Scotia of about twenty. Their legislative rights are similar to those of the senate of Canada. They can commence or amend all classes of legislation except money or taxation bills (see above, 94). While they may reject such bills as a whole, they can- not amend them. The legislative assemblies of the provinces are elected by the people on a very liberal franchise— manhood suffrage in Ontario, New Brunswick, Manitoba and British Columbia, and practically so in Prince Edward Island. A property basis still prevails in Nova Scotia and Quebec (see below, pp. 160, 161). The number of members varies from ninety-four in Ontario to thirty in Prince Edward Island. They do not require any pro- perty qualification, but must be British born or naturalized subjects of the queen, and male citizens of the age of twenty-one years not disqualified by law. They are paid a certain compensation during a session, varying from $800 in Quebec to $160 in Prince Edwa'-d Island, with the addition of a small sum or a milea^ .ate, ten cents each way in some cases, to pay travelling expenses. Members are nominated and elected on the same day in the provinces, and the vote is by ballot, except in Prince Edward Island. The methods of conducting elections, from the time of a dissolution until the return of writs for a new leg'slature, are practically the same as those for the dominion parliament. The lieutenant-governor, by the advice of his council^ issues a proclamation duly dissolving the old legislature and appointing the day for the return of writs, and calling the new legislature together. Returning officers receive the writs and fix THK LFXilSLATURES. 1 5/ the day for nomination and voting according to law. Voters mark and deposit their ballots in the same secresy as at a dominion election (see above^ p. 104). The provincial laws providing for the independence of the legislature, like those of the Dominion, prevent contractors and persons who receive salaries and emoluments from the dominion or provincial govern- ments from sitting in the assemblies. The statutes against bribery and corruption are as strict as those for the Dominion. In all cases the provincial judges try cases of disputed elections, with the same satisfactory experience that has been the result of a similar system in the dominion elections. The legislatures of the provinces have a duration of four years — in Quebec, of five — unless sooner dissolved by the lieutenant-governor. They are governed by the constitutional principles that obtain at Ottawa. The lieutenant-governor opens and prorogues the assembly, as in Ontario, New Brunswick, Prince Edward Island, Manitoba and British Columbia, or the assembly and the legislative council in Nova Scotia and Quebec, with the usual formality of a speech. A speaker is elected by the majority in each assembly, or is appointed by the crown in the upper chamber. The rules and usages that govern their proceedings are derived from those of England, and do not differ in any material respect from the procedure in the dominion parliament (see above, p. i lO). The rules with respect to private bill legislation arc also equally restrictive. The British North America Act requires that the legislatures of Ontario and Quebec must sit once in every twelve months, like the dominion parliament (see [158] NUMBER OF JMEMBERS. 159 abovCy p. 105), but even without this constitutional direction the fact that supplies for the public service must be voted every year before a fixed day — either the first of July or the first of January in the different provinces — ^forces the several legislative bodies to meet before the expiration of a financial year. If they did not meet to pass a new supply or appropriation bill (see above, p. 119) before the end of that year, the pro- vince would be without money to meet the payment of the majority of public salaries, and expenditure on public works or other matters of provincial necessity. 2.— Number of Members in the Legislatures of Canada. • The legislative assemblies of the provinces have the following number of members, all of whom are required to take the oath of allegiance required for members of the senate and house of commons of the dominion parliament (see above, p. 106). Provinces. Mhmkers. British Columbia 33 Manitoba 40 Ontario 94 Quebec , 73 New Brunswick 41 Nova Scotia 38 Prince Edward Island , 30 Total number in provincial assemblies. . 349 Legislative councillors in Quebec and Nova Scotia 44 Legal maximum of senators and members in the dominion parliament in 1895 293 Northwest assembly 26 Total number of members in the legisla- tive bodies of Canada 712 or one representative for about every 7,000 souls of the population c*'the Dcminion. l6o LEGISLATIVE POWER, 3.— Voting Qualifications or Electoral Franchise in the Provinces. In the provinces every native-born Canadian, or sub- ject of her majesty by birth or naturaHzation, who is a male person of the age of twenty-one years, not insane, not convicted of crime, nor otherwise disquahfied by any law, and who is duly entered on the official list of voters, can vote at leijislative elections within their respective provinces on the following conditions : Ifz British Columbia. — Residents in the province for twelve months, and in an electoral district for two months of that time. Chinese and Indians have no vote. The system is consequently manhood suffrage. hi Manitoba. — Residents in the province for six months, and in the electoral division for one month Ijefore the issue of proclama- tion appointing the registration clerk therein. The system here is also manhood suffrage. Indians and persons of Indian blood receiving an annuity or treaty money from the crown, and all persons receiving salaries or fees from the dominion or provincial governments to amount of $350 a year and upwards, have no votes. /// Ofttario. — Residents in the province for nine months before the time fixed by law for beginning to make the assessment roll in which they should be entered as qualified to vote, providing they are at the time actually residing in the municipal district in which they vote. The system here, too, is manhood suffrage. Enfran- chised Indians — those who have obtained by law all the privileges of citizens — can vote on the same conditions as other voters ; unenfranchised Indians, not residing on an Indian reserve, or among Indians, can vote on a property qualification. Ift Quebec. —Owners or occupants of real estate valued in cities at $300, or $200 in other municipalities, or which yields a value of $20 a year. Tenants paying an annual rental for real estate of at least $30 in a city, and $20 in any other municipal division: Also teachers under the control of school commissioners or trustees ; VOTING QUALIFICATIONS. l6l rentiers^ or retired farmers, with a rental of at least $ioo yearly ; farmers* sons working on their parents' farms, if divided equally between them as co-proprietors ; sons of owners of real property residing with parents, on similar conditions as last ; fishermen, owners or occupants of real property and boats, fishing gear, or of shares in a ship of actual value of at least $150. The system is consequently based on property, and is more restrictive than in any of the provinces, except Nova Scotia, whose franchise is very much the same. /// New Brunswick. — Residents in a district for twelve months before the making up of voters' lists. Persons assessed for the year on real estate to the value of $100, or on personal and real property together to the amount of $400, whether residents or not. Priests or other christian ministers, or school teachers, or professors in colleges. The system is manhood suffrage. In Ncn'a Scotia. — Persons assessed on real property valued at $150, or on personal, or on personal and real property together, valued at $300. Persons exempted from, taxation, when in possession of the property just stated. Tenants, yearly, of similar property. Sons of foregoing persons, or of widows, in possession of enough property to qualify as stated above, and actually residing on such property. Persons having an annual income of $250. Fishermen with fishing gear, boats, and real estate, assessed at an actual value of $150, provided that such property is within the county where the vote is given. Dominion officials generally, and some provincial employees, cannot vote at provincial elections. /;/ Pri?tce Edward Is/and. — Residents in an electoral division who have performed statute labour for twelve months before an election. Owners or occupants of real estate, within the electoral district, of the clear yearly value of $6, provided they have occupied such property six months before election. Residents in Charlotte- town and Summerside who have paid a provincial poll tax, or twenty-five cents on such civic poll tax for year preceding election. Owners or occupants of at least eight acres of certain reserved land for six months in Georgetown. The system is manhood suffrage to all intents and purposes. Certain dominion officials cannot vote at provincial elections. a [I62] CHAPTER III. MATTERS OF PROVINCIAL LEGISLATION. I. Legal Enumeration of Subjects of Proi'tnciai Legislation . 2. Education. — j. Dominion Power of Disallowance. 1.— Legal Enumeration of Subjects of Provincial Legislation. The subjects that fall within the legislative authority of the provincial governments are very numerous and affect immediately every man, woman and child in a province. Comfort and convenience, liberty and life, all the rights of citizens with respect to property, the endless matters that daily affect a community, are under the control of the provincial authorities. The legislature may, in each province, " exclusively make laws " in relation to the classes of subjects enu- merated as follows: 1. The amendment, from time to time, notwithstanding anything in the British North America Act, of the constitution of the pro- vince, except as regards the office of heutenant-governor. 2. Direct taxation within the province in order to the raising of a revenue for provincial purposes. 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. [In the case of Manitoba, which was made a province after 1.S67, the public lands, 164 MATTERS OF PROVINCIAL LFifHSLATION. as well as those of the Northwest generally, belong to the dominion government.] 6. The establishment, maintenance and management of public and reformatory prisons in and for the province. 7. The establishment, maintenance and management of hospitals, asylums, charities and eleemosynary institutions in and for the province, other than marine hospitals. 8. Municipal institutions in the province. 9. Shop, saloon, tavern, and 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 undertakings 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 (see above^ p. 125, for explanations). 11. The incorporation of companies with provincial objects. 12. Solemnization of marriage in the province. Marriage and divorce, however, belong to the dominion government (see above^ p. 124). 13. Property 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 procedure in civil matters in those courts. EDUCATION. 165 15. The imposition of punishment by fine, penalty or imprison- ment 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. A careful consideration of the foregoing subjects will .show how large and important a measure of local self- government is given to all the provincial members of the confederation. Provincial legislation in every way more nearly affects the daily life and interests of the people of a province than the more general and national legislation of the Dominion. For instance, indirect taxation on imports does not come home to all classes in every day life like those taxes which are imposed by municipalities on the authority of provincial statutes. 2.— Education. It will be seen above, however, that the all-important question of education does not fall within the enumera- tion of matters belonging to provincial legislation, but that it was considered necessary to devote a special clause to this subject in the constitutional act of 1867. The reason for this must be sought in the political history of the question. While the different provinces before confederc tion were perfecting their respective systems of education, the question of separate schools attained much promin- ence. The Protestant minority in Lower Canada, and the Roman Catholic minority in Upper Canada, earnestly contended for such an educational system as would give the Protestants in the former, and the Roman Catholics in '•i-.- .. i4 U 25 > o [166] EDUCAIION. 167 the latter province, control of their own schools. Finally, in those two provitices, separate schools obtained at the time of the union, and it accordin C U o 03 -^ o o O [186 J IIL:IK AM) DfcVISKE COURT, ETC. 187 all testamentary matters and causes, subject to the revision of the supc-rior courts — the chancery division of the high court of justice in Ontario. In Quebec the jurisdiction in probate rests witli the superior court. In British Columbia the county courts have jurisdiction up to matters involving $2,500, and the supreme court beyond that amount. In Ontario and Manitoba the county judges are surrogate judges. 6.— Heir and Devisee Court in Ontario. This court has power to determine claims to land in the province where the crown has issued no patent in favour of the proper claimants. Commissions under the great seal are issued, when necessary, to commissioners, the judges of the superior courts or other persons, to deal with such cases as they arise. 7. —Courts for Trial of Controverted Elections. In the case of controverted or disputed elections for the dominion parliament or the provincial legislatures, the statutory law of the Dominion and of each province gives jurisdiction to the judges of tlie superior courts to try and determine them. In provincial contested elec- tions one judge is sufficient ; but the dominion law requires that two judges preside at a trial of every election petition. Appeals lie to the supreme court of appeal of a province in case of a provincial, and to the suprem.e court of Canada in case of a dominion election. 8.— Courts of Revision of Assessment Rolls and Voters' Lists. The county or district judges in Ontario and other provinces also act as a court of appeal from the first l88 COURTS OF LAW IN THE rROVINCFS. court of revision held by a municipality in matters of disputed assessment (see Fi/l/i Part, sec. lo). They also act for the revision of voters' lists for provincial elections. Revising officers of the lists of voters for dominion elections are, in all the provinces except Quebec and British Columbia, a county or district judge or a barrister of five years' standing at the bar, as the governor-general in council may choose to appoint. In Quebec he must be a judge of the superior court or an advocate of five years' standing ; in British Columbia, a judge of a superior or county or district court, or a stipendiary magistrate or a barrister of five years' stand- ing. This revising court can compel the attendance of witnesses, the production of papers and books, and exercise all the powers of the superior courts of a pro- vince necessary to enable it to carry out the provisions of the franchise law. 9.— Courts of Divorce. In the provinces of Nova Scotia, New Brunswick, and Prince Edward Island there are courts with power to dissolve a marriage between parties for such causes as the law allows. In the case of British Columbia, the supreme court of that province holds that it possesses all the jurisdiction conferred on the court of divorce in England. By the British North America Act the parlia- ment of Canada has sole power to deal with the subject of marriage and divorce, and can alone grant divorce by special legislation on each case that comes before it from Quebec, Ontario, Manitoba, and the Northwest Territories, where no courts have been established by its authority. The courts in the maritime provinces existed SUPREME COURTS OF APPEAL. 1 89 before 1867, and continue to exercise their powers in the absence of dominion lc*^islation. The senate, where bills of divorce are first presented by usage (see above, p. 94), has a special committee and special rules on the subject. 10.— Supreme Courts of Appeal in the Provinces. In all the provinces there are the following courts of highest jurisdiction, to which appeals can be made from the judgment of a court, presided over by one or more judges: In Ontario. — One of the divisions of the supreme court of judi- cature, called the court of appeal, composed of a chief justice and three justices. It hears appeals from the three divisions of the high court of justice, queen's bench, common pl<,'as and chancery, within the limitations fixed by the judicature act. In cases of an appeal from a divisional court of the high court of justice, four members must sit as a court ; from a single judge three are a quorum. In case of illness or unavoidable absence of a judge, the vacancy may be filled by a judge of the high court, so as to make a quorum. The court of appeal may sit in two divisions at the same time, with the assistance of such number of judges of the high court as may be necessary at the time. Below the court of appeal are the divisional courts of the high court of justice of Ontario. Appeals are allowed to one of those divisional courts — each of which is composed of three judges — but limitations are imposed on the right of subsequent appeal to the chief court of appeal. An act of 1895 provides that there shall not be more than one appeal in the province from any judgment or order made in any action or matter save at the instance of the crown, or in a case in which the crown is concerned, or in such cases as are specified in the statute. Appeal upon special leave from a divisional court to the chief court of appeal shall not be allowed unless the matter in controversy exceeds the sum or value of $1,000, exclusive of costs, or involves indirectly or otherwise that sum or value ; or involves the validity of a patent ; or where the 190 COURTS OK LAW IN THE PROVINCKS. judgment or order involves a question of law or practice on which there have been conflicting decisions or opinions by the high court of justice, or by judges thereof; or where a judgment or order is in regard to a matter of practice, but affects the ultimate rights of pjirties to the action to the extent of the said sum or value ; or where there are other sufficient special reasons for treating the case as exceptional and allowing a further appeal. In case a party appeals to a divisional court of the high court in a case in which an appeal lies to the court of appeal, the party so appealing shall not be entitled to aftei wards appeal from the said divisional court to the court of appeal, but any other party to the action or matter may appeal to the court of appeal from the judgment or order of the divisional court. No judge shall sit as a judge on the hearing of an appeal from any judgment or order made by himself. /;/ Quebec. — The court of queen's bench \vhich hears appeals from the superio*- court in civil cases. It also hears appeals on points of law un('er the criminal code (see above., p. 17.'). As a court of appeal, four jndgcs constitute a competent court, though five, and no more, can sit. A minor court of appeal is the court of review, consisting of three judges of the superior court, and review- ing judgments given by a single judge of that tribunal. If this court of review confirm the fn st judgment, an appeal can be made only to the supreme court of Canada, or to the judicial committee of the privy council. If the judgment is reversed by the court of review, an appeal is alowed to the queen s bench, appeal side. I7i New Brunswick. — The supreme court sitting as a full court, but of whom four justices form a quorum. In NflTii Sco/ia. — The supreme court, sitting /;/ banco^ or a full court, of whom four — or three in case of illness— form a quorum. In Prince Edward Island. — The supreme court sitting as a full court, and having jurisdiction in appealed chancery cases. In Manitoba. — The court of queen's bench, sitting as a full court, of whom three form a quorum. In British Columbia. — The supreme court, sitting as a full court, of whom three shall be a quorum. pkotKss. 191 From the judgments of the foreq^oinfr provincial courts of appeal there are appeals to the supreme court of Canada (see above, p. 129) and finally to the ju«.. icial committee of the privy council under the limitations and conditions laid down for such an appeal (see above, p. 66). Appeals are allowed to the supreme court of Canada in criminal cases only when the court of appeal in a province is not unanimous. No appeal can be brought in any criminal case from any judgment or order of any court of Canada to the judicia' committee of the privy council (see above, p. 66). 11.— Process Every court gives effect to its powers by forms of proceeding (process) set forth in the statute defining its jurisdiction and in its rules of practice. In civil actions, process is of various kinds: i. A writ of summons to compel a defendant to appear before a court. 2. Sub- poena, or summons to witnesses to appear and give evi- dence in a suit or be subject to a penalty or punishment (which is the translation of subpcena). 3. Summons to jurors to appear at a trial. 4. Execution of a judg- ment or order of a court, besides other proceedings not necessary to mention here. A warrant is a guarantee or protection (the original meaning of an old French word warant) to the person executing it that he has authority for so doing. It is by warrants that persons charged with crime are brought before a magistrate and com- mitted to prison, and other processes necessary in civil and criminal cases executed. 192 COURTS OF LAW IN THE PROVINCES. 12.— Sheriff and Officers of the Courts. The most important officer in the execution of process of law is the sheriff, who is appointed by the Heutenant- governor in council in the provinces, and by the governor-general in the territories. One sheriff is appointed for every county or judicial district in a province. Here again we have another example of our close adherence to old English names. The sheriff was in Saxon times the judicial president of the scir-gemoU or assembly (gemot) of the shire (scir), one of the divi- sions of the English kingdoms. He was the " reeve " or headman of the shire, the scir-gerefa, which has in the course of centuries been softened to sheriff. In Norman times the shire became a county, and its government, judicial, military, and financial, was practically executed by the sheriff, who was directly responsible to the kmg. In the course of time he was deprived of his large powers, and became a purely civil ofRcer. He is now in Canada an officer of dignity, connected with the superior courts, whose orders, sentences and judgments arc carried out under his direction, even to the execution of a criminal. He summons juries, has charge of the jails and their keepers. He appoints his own deputies and officers, and is responsible for their misconduct and negligence in executing the process of the courts. He gives security for the proper performance of his onerous duties. In connection with the courts there is also a large body of officers, known as county attorneys, clerks of the peace, deputy clerks of the crown, county court clerks, registrars of high or surrogate courts, and others, all of OFFICE OF CORONER. I93 whom are appointed by the government of a province to perform special duties in connection with the adminis- tration of justice. Every process of a court is duly issued, and registered in the records of the court, by the proper officer. The prothonotaries* in Quebec and else- where are the clerks of the superior courts, who issue writs, keep the archives and records, and enter judgments. In Quebec they have the right to appoint tutors and render judgments in certain uncontested commercial cases. The name of constable, now the lowest in the judicial machinery, goes back to early Norman times, when it represented an office of high dignity, which nobles were proud to hold. The constables of the superior court are generally known as bailiffs. All constables are "peace officers" who serve the summons and warrants of the proper courts. In cities they are known as policemen. They can arrest persons who break the law in their presence, and bring them before the proper court at the earliest possible moment. Otherwise they act only under an order from a magistrate, sheriff, or court. In times of threatened riot or disturbance, special constables are appointed by justices to preserve the peace. Con- stables are appointed by the judges of sessions or magistrates, or municipal councils, or police commission- ers, as the law provides in each case in a province. 13. -Office of Coroner. The office of coroner goes also back to early English times, when he was a royal officer specially appointed to From two Greek words, meaning a first notary or clerk. 13 194 COURTS OF LAW IN THE PROVINCES. look after the peace and interests of the crown (Latin corona^ thence coroner) in a special district allotted to him. It is now his duty to inquire into the cause of the death of a person who is killed or dies suddenly, or in prison. When the circumstances of the case require an investigation, he summons a jury, calls witnesses, and holds an " inquest " on view of the body at the place where it was found. Upon the facts disclosed a verdict is given by the jury. Persons may be charged with murder, manslaughter, or culpable negligence, according to the nature of the death. When a coroner's "in- quisition " (inquiry or investigation) charges a person with manslaughter or murder, he must issue his warrant to bring the accused immediately before a magistrate or justice, who will proceed to make inquiry into the case as the law provides. Coroners can also investigate the origin of fires, when the circumstances point to in- cendiarism or criminal design. 14.— The Legal Profession. In each of the provinces there is a law society, incor- porated by statute, for the promotion of the interests of the legal profession, and the regulation of the study necessary before admission to the practice of law. In nearly all the provinces every person must be entered as a student-at-law, according to the rules of the several law societies, for five years before he can be admitted to the bar. But an exception is made in the case of one who has taken a degree in arts or law in a recognized univer- sity. In Ontario, Manitoba and British Columbia, the term of studies for a barrister is then reduced to three years. In Quebec, only one year is taken off for admission as " an advocate " — the general designation of a lawyer NOTARIES. 195 in this province — when a student has received a degree in law in a university. In Nova Scotia and New Bruns- wick, four years' study is required for admission as an attorney, but one year is taken off in the case of a uni- versity graduate. Then a man can be admitted as a barrister one year after becoming an attorney. In Prince Edward Island, five years' study is necessary for an attorney and one year later he can be admitted as a barrister, but two years are taken off for a university graduate. An attorney is one who does not plead in court, but prepares " the brief," or case for the barrister, who can alone plead and argue before the judge. In Ontario, attorneys are now called solicitors, and they must study as clerks in the office of a practising solicitor for five years, but two years are also taken off in case of a graduate of a university. In all the provinces exam- inations are necessary before a man can be admitted to the study and practice of law, under the regulations of the different law societies. The universities of the pro- vinces now, generally speaking, have regular courses of lectures and examinations in law, and confer degrees of bachelor and doctor of laws. The attorney-general of a province has precedence at the bar over all other members, but he ranks below the minister of justice as attorney-general of the Dominion. Both the dominion and provincial governments appoint queen's counsel, who have a certain precedence at the bar, and ought to be always men of high legal standing. 15.— Notaries. In Quebec, notaries form a distinct profession, and are incorporated. They are public officers, whose special 196 COURTS OF LAW IN THE PROVINCES. duty it is to draw up and execute legal deeds, assure the date thereof, preserve the same in safe keeping, and deliver copies and extracts of the same, for certain fees regulated by law. No advocate or physician can hold the position. A course of five years' study is required before admission. In the other provinces, notaries are generally lawyers, appointed for that special purpose by the lieutenant-governor in council. Other persons, not members of the legal profession, can be appointed when thjey have the qualifications required by law. A notary — generally called " notary public," — as in Quebec, certi- fies deeds and other writings, or copies of the same, and his seal and certificate give them validity at home and abroad. Their most common duty is in the "protesting" of notes and bills of exchange — in other words, a legal declaration necessary when such commercial paper or liability is not paid at the time and place required under the law governing these matters. CHAPTER VII. TRIAL OF CIVIL AND CRIMINAL CASES. /. Origin of Courts of Assise, Nisi Prius, Oyer and Terminer, etc.~2. Trial by Jiiry.-~3. Ttial of Civil Actio?is.~4. Trial of Criminal Offe)ices.~5. Appeals in Criminal Cases.— 6. speedy Trial of Criminal Offences.— 7. Extradition of Crimi- nals. — 8. Writ of Habeas Corpus. l.-Origin of Courts of Assize, Nisi Prius, Oyer and Terminer, etc. The judges of the high courts of justice, whether called supreme or superior, or high courts, make what are called " circuits " of a province at least twice a year, and hold courts for the trial of civil and criminal cases not limited in their nature. These are the courts in which life and property are most deeply involved. Here we see in full operation that system of trial by jury which has always been the distinguishing feature of English law and justice, as compared with the methods of France and other nations. These courts have long been known as courts of assize, nisi prius, of oyer and terminer, of general jail delivery. In their origm and methods of procedure we see the example of England as in all our institutions of government. When it became necessary to separate the original king's court {euria regis) of early Norman days into branches to meet the increasing demands of the people for justice, three divisions were formed : (ij The exchequer attended to revenue and [1973 198 TRIAL OF CIVIL AND CRIMINAL CASES. fiscal matters ; (2) common pleas, to all matters of a civil nature ; (3) the king's bench, to criminal and all other business not given to the other courts. In the course of time another court arose, known as the chan- cery, to provide redress for petitioners who could not readily obtain it under the rules of law and procedure that obtained in the common law courts. Justices also were sent on the circuit of the kingdom to admin- ister justice in counties. It seems to have been always a fundamental principle of the administration of law in England that cases, whether civil or criminal, should be tried in local courts or in the presence of the county and people where the suitors or accused lived, and not in a distant or unknown tribunal. It was as an expansion of this principle that trial by jury arose in the judicial system of England. In olden times, for a long while after the Norman conquest, it was customary to summon tw^elve persons who lived in the immediate neighbour- hood where a dispute had arisen, and to swear them to tell the truth according to their knowledge of the facts, or by their " recognition," as it was called. In fact, they were simply witnesses who acted to the best of their knowledge and belief, and represented the opinions of the district where they lived. Eventually there arose out of this primitive method of coming to a conclusion on a disputed case, the practice of calling witnesses, and of summoning twelve men of the neighbourhood to decide on the facts as set forth in the evidence. In the words jury, assize, nisi prius, oyer and terminer, we see the evidences of Norman influence in the courts of England and her colonial possessions. " Jury " comes from an old French word meaning to " swear," and was TRIAL BY JURY IN CANADA. I9Q applied to the body, because the ordinance or " assize " that first summoned them required each member to take an oath. "Assize" is also derived from the Norman French, and was used originally to desi.irnate the sittings or sessions of a judicial or even legislative body, and subsequently even to the ordinance or law of such an assembly. " Nisi prius " is also a phrase of old legal proceedings. Formerly the sheriff of a county was commanded to bring a jury to Westminster — the central tribunal of the kingdom — on a certain day unless before (the translation of " nisi prius") that time the justices of assizes came into the district. Now a trial at nisi prius means simply when an action is tried before a judge and jury. The words ''oyer and terminer" (hear and determine) are also relics of the days when English statutes and the proceedings of the courts were in Norman French. Consequently when we hear of the judges holding such courts we know that it means that they come clothed with authority to hold sittings at which they will hear and judge all cases brought before them. Then there is a general jail delivery. The jails then must deliver up their prisoners for trial before a jury of sworn men chosen from the neighbourhood, as in old English times. Below I explain the method of choosing a jury on a criminal trial (p. 205). Persons on bail must come forward and surrender themselves for trial, or else their securities will have to pay the penalties the law has required. 2.— Trial by Jury in Canada. Trial by jury, which never existed under French rule, was established in Canada in 1785 in matters of 200 TRIAL OF CIVIL AND CRIMINAL CASES. commerce and personal wrong. Of course the system formed part of the criminal law which was introduced into Canada after the cession in 1763, and the king instructed the governor-general, Murray, to pass an ordinance to permit French as well as English to sit as jurymen. Gradually it came very generally into operation, even in matters under the civil law. At present, jurymen in all the provinces except Manitoba and British Columbia require to be British subjects who are on the assessment roll of a county or other district where they serve, and to possess a certain amount of real or personal property. In Manitoba and British Columbia they need only be actual residents and electors in a district. In Quebec and Nova Scotia grand jurors need a higher qualification than petty jurymen. Jurymen are chosen by ballot by selectors — certain officials of a county — in Ontario and some of the other provinces, but the process is too complicated to explain it here intelligently. The complete list of jurors chosen for a sitting of a court or assize is called a " panel," from the fact that originally the list was written on a little slip or piece {panel in old French) of parchment. The men selected for particular trials are said to be "impan- nelled," entered or enrolled on the list. In civil cases of disputed facts juries are still required in the majority of the provinces, but of late years the tendency has been to allow the judge himself to decide on the evidence in matters where there are nice and com- plicated points of law at issue, and juries are now be- coming less common. As a general principle, however, in the determination of actions at law the judge decides the law, and the jury the facts of the case. In all criminal CIVIL ACTIONS. 201 cases before the court an accused has a right to a jury of twelve men, and the verdict must be unanimous for con- viction. It is optional for him to be summarily tried by a county judge or justice (see above, p. 176) in certain cases. In the trial of issues of fact in civil actions it is no longer necessary to have a jury of twelve or to have their unanimous verdict. In Ontario, the number of a jury is twelve, or eleven under certain circumstances, and the number required for a verH'ct is ten. In the other pro- vinces the respective numbers are as follows : Quebec, twelve in all and nine for a verdict ; Nova Scotia, nine in all and seven for a verdict after four hours' deliberation ; in New Brunswick, seven in all and five for a verdict in the supreme court, but five in all and four for a verdict in the county court; in Prince Edward Island, seven in all and five for a verdict ; in Manitoba, twelve in all but nine for a verdict, though parties may agree to a jury of nine ; in British Columbia, eight in all in the supreme court, with three-fourths for a verdict in the same court, but five in all and three-fourths for a verdict in the county court, when in either case they have been in deliberation for three hours and are not unanimous in all respects. 3. -Trial of Civil Actions. In actions between persons for the settlement of a dispute, the one who commences the suit for redress is called the plaintiff (from the French word meaning 07ie who complains), and the other who is asked to give that redress or to defend his refusal is the defendant (from a French and Latin word meaning to ward off, or contest). The plaintiff obtains from an officer of a court 202 TRIAL OF CIVIL AND CRIMINAL CASES. a writ of summons containing a statement of the claim, and this is served on the defendant, who has to put his defence in the form required by law. The case is placed before the court in a pleading, the object of w^hich is to get from both parties d full statement of the claim and defence. When the case is ready for trial, and is called by the officer of the court, the counsel for the plaintiff opens the pleadings, or explains the nature of the claim at issue. He then calls upon his witnesses, who are examined one after the other by himself under the rules of evidence, and cross-examined by the defendant's counse'^ ^^ break down their testimony, if possible, or bring out some points in favour of the defendant's side. Then, when the evidence for the plaintiff is all in, the defendant may call and examine his witnesses, who are cross-examined in turn by the plaintiffs counsel. If there are no witnesses for the defence the plaintiff's counsel sums up his evidence, and the defendant's coun- sel replies. Sometimes the judge may order a "non- suit " ; i.e.^ on the ground that the plaintiff has failed to make out his case. But when evidence is given on both sides, the counsel for the defendant sums up, and the counsel for the plaintiff replies. If the case is one for a jury, the judge reads the evidence and makes such observations as law and usage allow him, and instructs the jury as to the law of the case. The jury then retire to their room to consider their verdict, which will be based on the facts, the law of the case they must take from the judge. If they have decided (see above, p. 201) for the plaintiff or defendant they return, and through their foreman state its nature. If they cannot agree, and the judge is of opinion that there is no probability of their CRIMINAL OFFENCES. 203 coming to an agreement, they are discharged from attendance, and the case has to be tried at another time before a new jury. Speaking generally, the costs are paid by the person who has lost his suit. These are, however, matters of detail to be decided by the court accordinnf to its discretion and the circumstances of the case. The law gives suitors in civil cases every possible opportunity of appeal to the court above (see above, p. 182). A plaintiff or defendant may conduct his own case, but when neither is a lawyer the wise course is to employ a professional man. A person charged with a criminal offence has also the right to defend himself 4— Trial of Criminal Offences. In criminal cases, involving life and liberty, justice proceeds with great deliberation. It is the duty of the crown prosecutor — a county crown attorney in Ontario — to take all the steps that the law requires for the trial of a prisoner committed to jail by a magistrate (see abovey p. 175) on a criminal offence. Before the person can be tried before the court of assizes he must be indicted — that is, the court must have before it a statement showing in strictly legal form, but in explicit and popular language, the nature of the offence for w^hich he is to be tried. This indictment must be prepared by the crown counsel or attorney authorized by the attorney-general of a province to look after the preliminaries of crown cases. It is his duty to submit the " information " (see above, p. 175) and all other papers setting forth the cause of commitment before what is called a grand jury, which is composed of, in the provinces, not less than twelve and not more than twenty-four persons chosen specially 204 TRIAL OF CIVIL AND CRIMINAL CASES. from a carefully selected panel or list of jurymen (see above, p. 200). The grand jury do not "try" an accused. No witnesses in support of the prisoner are examined, buc the jury simply come to a conclusion whether thc/e is sufficient evidence before them to put the prisoner on his trial. If the jury decide that there is a case against the prisoner, then their foreman writes a " true bill " on the bill of indictment or the information laid before them. If there is no such case, he writes " no case," and the accused is entitled to his liberty unless there is another bill of indictment in his case to be considered. A dominion law now provides that seven grand jurors may find a true bill in any province where the " panel " is rrot more than thirteen, but the governor must first proclaim or officially announce the day when this provision comes into force, and this has been done in Ontario. A Manitoba statute requires the assent of at least eight jurors out of the fifteen summoned on the panel. In Manitoba two-thirds of the jury must speak English and one-third French ; in Quebec and Montreal one-half must speak English and the other half French. In the case of a " true bill," the accused is put on his trial before a petty (from the French petit) or common jury, chosen from the panel for that sitting of the court (see above^ p. 200). The counsel for the crown is always a prominent barrister and queen's counsel learned in the law, chosen to conduct the prosecution by the attorney-general of the province. In all criminal cases the crown, or the reigning king or queen, is the prosecutor, and in. his or her name all actions are brought against those who CRIMINAL OFFENCES. 20$ commit a criminal offence. Her representative in a province is the attorney-general, whose duty it is to protect the interests of the crown and people in all criminal cases affecting life, liberty and property. When the prisoner is standing in the dock,* in the presence of the court, the indictment must be read to him, and he is called upon to plead " guilty," or " not guilty " as it most invariably happens. The next step is to choose twelve jurors from the panel. Each juryman is called by name and address, but before he is sworn, both crown and accused, acting through their respective counsel, can "challenge" (or object to) a juryman serving on the trial. This objection may be without cause assigned ("peremptory") or for some special cause, as that he has expressed or is known to have an opinion on the case, that he is a particular friend of the accused, or is otherwise likely to be influenced one way or the other, The number of "challenges" are regulated by the law. chiefly with respect to the gravity of the offence. The following is the procedure in calling a jury to try a prisoner : The name and number of each juror on the panel, and the place of his abode, are written on separate pieces of card, each of equal size. These cards are handed to the proper officer of the court by the sheriff or his deputy, or other person having the panel in his charge, placed in a box provided for that purpose, and then well shaken together. The officer of the court drawls one card at a time, and calls out the name and number on the same, until such a number of persons * Probably from an old Dutch word, meaning a cage. A prisoner is placed in the dock for felonious offences, or in other words for grave crimes. 206 TRIAL OF CIVIL AND CRIMINAL CASES. have answered to their names as will probably be sufficient to provide a full jury of twelve, after allowing for challenges. The officer then proceeds to swear each juror in the order in which his name is called, provided he is not challenged or obliged to stand by. Provision is made for mixed juries of English and French speaking persons in Quebec and Manitoba, when necessary. The twelve men at last selected and sworn in this way compose the jury to try the prisoner on the indictment presented by the crown. Then the crown couns^^' states the case against the accused, and points out the nature of the evidence to be produced. Witnesses for the crown are called one after the other, and when each has sworn or " affirmed " " to tell the truth and nothing but the truth," he or she is duly examined by the crown counsel. Sometimes the court orders, in important cases and under special circumstances, that witnesses be kept out of the court room and separately examined. Counsel for the defence can cross-examine the witnesses. At the close of the case for the prosecution the counsel for the defence must declare whether he intends to present evidence on his side, and if he replies in the negative the counsel for the crown may at once address the jury, and the counsel for the defence shall have the privilege of speaking last. But when the counsel for the defence has evidence to adduce, he has the right to open his case, and then to examine his witnesses. Any person charged with an offence may give evidence in his own behalf. When the evidence for the defence is closed, the counsel can sum up. The crown counsel has the right to reply, and the judge finally reviews the evidence — but not' so as to sway the jury by partial statements — and explains the APPEALS IN CRIMINAL CASES. 2o; law as in civil suits (see above, p. 202). The jury then retire in charge of an officer of the court to consider their verdict. When they have decided they come into court, and after each has answered to his name, the foreman declares whether the prisoner is "guilty," or "not guilty." When they cannot agree, and the court is satisfied that it is useless to keep them longer, they are discharged from attendance, and a new jury may be drawn from the panel or the trial postponed on such conditions as justice may require. Sometimes in giving a verdict of guilty on a case of capital punishment the jury may consider some circumstances justify them in adding a recommendation of mercy, but this fact cannot prevent the passing of the sentence, though the judge must report the recommendation to the crown. Sometimes the judge has it in his discretion not to impose the highest penalty of the law, but to lessen its severity. But in cases of high treason or murder he has no such discretion. 5.— Appeals in Criminal Cases. The law allows appeals to a higher court in criminal cases under special circumstances, and on the conditions laid down in the code. Points of law may be taken to the court of appeal. If that court gives a final decision on the question submitted, it is final ; but if any of the judges dissent, the case may go to the supreme court of Canada- Sentence may be postponed until the point at issue has been decided. A new trial may be allowed, or other order given in the interests of justice. The court of appeal or the minister of justice may also order a new jury when the court before which the trial took place gives 2o8 TRIAL OF CIVIL AND CRIMINAL CASES. leave to the prisoner's counsel to apply to the appeal court on the ground that the verdict was against the weight of evidence, or when the minister of justice him- self entertains a doubt as to the justice of the conviction. If no appeal is allowed, or no new trial ordered, the verdict and sentence of the first court hold good, and the convicted person must suffer the punishment that the law has awarded him, unless indeed at the last moment the governor-general is advised under extraordinary and exceptional circumstances, that cannot well be defined here, to exercise the royal prerogative of mercy, and modify the sentence, or pardon the prisoner. 6.— Speedy Trial of Criminal Offences. In the case of persons committed to jail "-^^ trial for certain minor criminal offences, they may elect — state their preference — to be tried at once without a jury by the following judicial functionaries out of the regular term or sittings of the court, at which they w^ould be tried in the due course of law. /n Ontario^ county judges. In Quebec, judges of sessions, or district magistrates, or sheriff where there are no such magistrates. In Nova Scotia and Prince Edward Island, county judges. In Manitoba, judges of the queen's bench or county courts. /;/ British Columbia, ]i\d.ges of the supreme or county courts. 7.— Extradition of Criminals. Treaties exist between England and several foreign countries — the United States being one — for the extra- dition (surrender) of persons who have fled to Canada after committing certain criminal offences in those countries. A judge may issue his warrant for the arrest WRITS OF HABEAS CORPUS. 209 of a fugitive on a foreign warrant, or on an information or complaint laid before him. The judge may hear the case in the same manner, as nearly as may be, as if the fugitive were brought before a justice of the peace, (see above, p. 175) charged with committing a criminal offence in Canada. When he commits a fugitive to prison he shall transmit all the papers in the case to the minister of justice, who, after inquiry, may order his surrender to the officer authorized by a foreign state to receive him. I^e cannot be surrendered until the end of fifteen days after committal, and he can in the mean- time apply for a writ of habeas corpus (see belotv). The crimes for which a person may be surrendered are of a grave character: murder, forgery, larceny, embezzle- ment, abduction, arson, robbery, perjury, obtaining goods by false pretenses, and many others ; but no person can be given up for a purely political offence. 8.— Writs of Habeas Corpus. This famous writ, like so many proceedings in old English times, was written in Latin, and is now recog- nized by words that appeared therein, meaning "you have the body to answer" {habeas corpus ad subjiciendum). It is closely associated with the liberties of Englishmen, and its origin must be sought in the principles of the common law, which forbade the commitment of any person to prison without sufficient cause. This principle was embodied in Magna Charta (see above, p. 58), but it was not until the reign of King Charles If. that power was given to any court to issue the writ in cases of persons imprisoned on a criminal charge in England, or the colonies, or other countries, and not until 1816— or 14 2IO TRIAL OF CIVIL AND CRIMINAL CASES. nearly 140 years later — was it extended to commitment on civil charges. In French Canada no such law was ever in force, and it was only after the cession of Canada to England that it was introduced as a part of the English criminal law, and incorporated into an ordinance to prevent doubts as to its operation. Now the law permits any person who is in prison on a criminal charge, and believes he has a right to his personal Hberty, to obtain a writ or command of a superior court to the jailer to bring him before that court, when his case may be fully argued on the points raised ; and if he can show that he is unlawfully detained the court will order him to be discharged from custody. It is now chiefly useful in proceedings for the surrender of a criminal fugitive to the authorities ol another country (see above, p. 208). CHAPTER VIII. PROVINCIAL REVENUES. /. Sources of R^-!c?me.— 2. Provincial Subsidies.— j. Crown Lands. 1.— Sources of Revenue. The revenues of the provinces are chiefly derived from the proceeds of royalties from mines (very vakiable in Nova Scotia), the sales of crown lands, timber and minerals, and the subsidies or annual allowances made by the domiiuon government under the authority of the British North America Act, for the purpose of enabling them to carry on their government (see beloiv, p. 213). The ninety-second section authorizes the legislatures to impose direct taxation on the province in order to raise a revenue for provincial purposes, to borrow money en the sole credit of the province, and to raise money from shop, saloon, tavern and auctioneer licenses, in order to the raising of a revenue for provincial, local, or muni- cipal purposes. When the Quebec convention sat, this question of provincial revenue was one that gave the delegates greatest difficulty. In all the provinces the sources of revenue were chieflv customs and excise duties which had to be set apart for the general govern- ment. Some of the delegates from Ontario, where there had been for many years an admirable system of municipal government in existence which provided funds for education and local improvements, saw many I211] 212 PROVINCIAL REVENUES. advantages in direct taxatio!i ; but the representatives of the other provinces could not consent to such a pro- position, especially in the case of Nova Scotia, New Brunswick and Prince Edward Island, where there was no municipal system, and the people depended almost exclusively on the annual grants of the legislature for the means to meet their local necessities. All of the dele- gates, in fact, felt that to force the provinces to resort to direct taxation as tiie only method of carrying on their government, would be probably fatal to the success of the scheme, and it was finally decided that the central government should grant annual subsidies, based on population, the relative debts, the financial position, and such other facts as sh )uld be brouglit fairly into the con- sideration of the case. These financial arrangements were incorporated with the act of union, and necessarily entail a heavy expense annually on the exchequer of the Dominion. In consequence of the demand that arose in Nova Scotia for " better terms." previous to and after the union, the parliament of the Dominion, in the session of 1869, legislated so as to meet the difficulty that had arisen, and it was accordingly decided to grant addi- tional allowances to the provinces, calculated on increased amounts of debt as compared with what they were allowed in the British North America Act of 1867 to enter the union. Manitoba, British Coluinbia, and Prince Edward Island also obtained annual subsidies in accordance with the creneral basis laid down in the con- stitution. it is from these subsidies that all the provinces derive the greater part of their annual revenues. Nova Scotia has a considerable fund from the proceeds of " royalty," or a tax levied on the quantity of coal and PROVINCIAL SUBSIDIES. 213 Other minerals raised at the mines. Ontario is in the most favourable position from the very considerable revenue raised from lands and timber dues, and from the admir- able system of municipal government, which has during half a century given such a stimulus to local improve- ments. In none of the provinces has there been a general system of direct taxation adopted for provincial purposes. In the maritime provinces the extension of a system of municipal government, within a few years, will probably in the course of time relieve the provincial governments of some local expenditures that have been defrayed out of the general funds. 2.— Provincial Subsidies. The subsidies and allowances paid in 1893-4 by the dominion government to the several {provincial authorities in accordance w ith law are as follows :— Ontario $1,339,28; Quebec 1,086,713 Nova Scotia 432,814 New Brunswick 483,569 Manitoba 437,6oo British Columbia 243,585 Prince Edward Island 221,051 Total $4,244,619 3.— Crown Lands in the Provinces. In all the provinces there are large tracts of public, unsettled lands, called crown lands. By the British North America Act all the lands, mines and minerals 214 PROVINCIAL REVENUES. that belonged to Canada, Nova Scotia and New Bruns- wick at the union remained in possession of the govern- ments of those provinces. The terms of union with Prince Edward Island in 1873 enabled its government to purchase the claims of the proprietors to whom all the lands of the province had been granted by the imperial authorities in 1767. In this way the government of the island became at last owners of a small tract of crown lands not occupied by the inhabitants who, for the most part, had been only tenants before the purchase in question. The British Columbia government, on enter- ing the federation in 1871, retained their public lands with the exception of what is known as the " railway belt," which they conveyed to the Dominion for the con- struction of the Canadian Pacific railway. In Manitoba and the Northwest Territories the public lands remain under the control of the dominion goxernment. All these dominion and provincial lands can be granted only by the crown ; that is to say, by the govern- ments of Canada and of each province. The history of tenure of land in England and her colonial posses- sions goes back to many centuries ago. In earliest English times, all land that was not held by individuals belonged to the nation, and was called " folk-land." It could be disposed of only by consent of the people's council, the witenagemot, or assembly of the wisemen. Gradually as the king's power increased, and he came to be regarded as the nation's representative, the public land was looked upon as his own. At first, he asked the assent of the council before granting it, but eventually he dispensed with that form altogether. With the com.ing of Norman William the principles of feudalism — from CROWN LANDS IN THE PROVINCES. 21 5 "feod/'an estate — which had so long prevailed in France and Germany, were established in England. Feudalism was based on the principle of a lord giving protection to an inferior, or vassal or tenant, for a certain service. This tenant or vassal received land from his lord in return for personal military service, or money or men. The absolute proprietorship in the soil, however, rested in the lord who could resume it on a failure of the tenant or vassal to perform his obligations. The king gave land to nobles or lords for a certain service ; they again divided those lands among their own retainers also on certain conditions of homaije or service. But the kinij of England from William's time was the supreme lord to whom the barons and nobles, as well as the tenants under them, alone owed allegiance and service. " Folk-land " became now " crown land." The whole soil of England, except the ecclesiastical domain, fell into the king's possession as a result of the conquest, and he granted it to those whom he chose. No land henceforth could be held as a grant except from him. In the course of centuries all the military conditions of land tenure and other aids which the king claimed as lord paramount of the kingdom were swept away, and the public or crown lands became a portion of the national revenue. The sovereign has given up his ancient hereditary revenues, of which the crown lands were a part, in return for a "civil list," or a fixed sum of money granted by parlia- ment for the support of government and the maintenance of the dignity of the crown. In this way the crown land. has again become practically the folk -land. The convey- ance of land in Encfland is still remarkablv encumbered by the conditions of old feudal tenure, but Canada a« 2l6 PROVINCIAL REVENUES. a new country is free from all such difficulties. The seigniorial tenure of French Canada was a simple form of feudalism, but it was abolished forty years ago, and every man can now hold his land as the sole proprietor (see above, p. 25). In the present mode of granting the public domain, however, we see a relic of feudalism. The crown is still theoretically the owner, and in its name alone can the public land be granted away. The crown, however, now means the government of the Dominion, or the government of a province, according as the lands lie in the one or the other, and they convey and grant land by a legal document called a "patent." In all the provinces, and in the Dominion (see above, pp. ^o, 144), some member of the government has the supervision and management of this branch of the public service. Throughout Canada there are registry offices under the charge of officials whose special duty it is, in return for a small fixed fee, to record all grants, titles and mortgages, and all other matters touching the sale, conveyance, and encumbrances of real estate, and to supply every infor- mation that may be required at any time on such matters. BIBLIOGRAPHICAL NOTE. The references in the bibliographical note at end of Part Three {^t^ above, p. 141) apply to this Part; especially Bourinot's Constitutional Works, and Todd's Parliaiiientary Government in the Colonies, where a review is given of the constitutional systems of the different provinces. In all these books comments are made on the operation of the dominion veto of provincial legislation, and the great usefulness of the decisions of the courts in cases of constitutional doubt and difficulty. All the books on the cabinet system of England, mentioned in the previous bibliogrrq^hical notes (see above, pp. 68, 141) can be consulted in connection with pro- vincial government. FIFTH FART. IMUNICIPAL GOVHRNMEN IN THE PROVLN'CES. CHAPTKR. l'Af;K. I- II.-Natcre of the Municipal Systhms of the Proving ES . 219 [217] CHAPTER I. NATURE OK THE MUNICIPAL SYSTEMS Oh THE PROVINCES. /. Growth of Local Sclf.Government.^2. Statutory La^v GovcrniiiQ Municipal lustituti-.ns.—j. Municipal Divisions.— 4. Consti- tution 0/ Councils. 1.— Growth of Local Self-Go vernment. We have now to consider the important place occupied by local self-^^o vernment in the provincial structure. In the days of French rule, as my readers ha\e already been told (see above, p. 15) the most insionificant matters of local concern were kept under the direct con- trol of the council and especially of the intendant at Quebec. Until 1841 the legislature of Quebec was practically a municipal council for the \\h(jle province, and the objection of the habitants to an\- measure of local taxation prevented the adoption of a workable municipal system. In Upper Canada, however, the legislature was gradually relieved of many works and matters of local interest by measures of local govern- ment which infused a spirit of energy and enterprise in the various counties, towns and cities. The union of 1 84 1 led to the introduction of municipal institutions in both the provinces, in conformity with the political and material development of the country. By 1867 there was a liberal system in operation in Upper and Lower Canada, but the same cannot be said of the maritime [219] 220 THE MUNICIPAL SYSTEMS. provinc(^s. It has been only within a few years that the legislatures of Nova Scotia and New Brunswick have organized a municipal system on the basis of that so successfully adopted in the larger provinces. In Prince Edward Island, however, matters remain much as they were half a century ago, and the legislature is practically a municipal council for the whole island. Charlottetown and Summerside have special acts of incorporation giving them elected mayors and councils, with the right of taxation for municipal purposes as in other provinces. At the present time all the provinces, with this one exception, have an excellent municipal code, which enables every defined district, large or small, to carry on efficiently all those public improvements essential to the comfort, convenience, and general necessities of its in- habitants. Even in the territories of the Northwest every facility is given to the people in every populous district, or town, to organize a system equal to all their local requirements (see Seventh Part). > ^^^^^ .- 2 —Statutory Law Governing Municipal Institutions. The ninety-second section of the British North America Act (see above, y>. 159), gives to the legislature of every province full control over municipal institutions. The legislature can consequently establish, amend, and even abolish a municipal system within tiie provincial territory. While every province has a general law regu- lating its municipal dixisions and their councils, there are also numerous special statutes relating to the corpor- ations or municipal councils of cities and towns. All councils exercise their powers in accordance with statu- tory enactment, and when they exceed them at any time !fNre I f I rr rn; t ^ '*_'__'■ f til ^, •"^ G —-•-.S!^-: lA.^^ City and County Buildings (under Construction), ToRONTf) [221 J 222 THE MUNICIPAL SYSTEMS. they can be restrained by the courts, should the matter be brought before them, by legal process. 3 —The Municipal Divisions. While there are many differences in the details of the machinery, all the municipal systems of the provinces are distinguished by certain leading characteristics. The municipal divisions common to all provinces are county, city, town, tow nship and village. In Quebec the parish, which is first an ecclesiastical or church district, can also be formed b)- the civil authority at the request of the inhabitants into a municipality. In New Brunswick, the parish dates back to the closing days of the last century and still remains a civil division, but it is also now applied in statutes to incorporated towns and cities. The county in all the provinces is the largest municipal division, and is really made up of the townships (or par- ishes as in Quebec and New Brunswick) within its terri- torial limits. 4.— Constitution of Councils in the Provinces. In Ontario the county councils are composed of reeves and deputy reeves of the townships and villages within the coimty, and of any towns which have not withdrawn from its jurisdiction. The reeves and deputy reeves annuall}' elect from among themselves a warden as head of the council. In township and village councils there are a ree\e or head, and four council Icsis ; but when there are five hundred electors within anv such division then each receives a reeve, deputy reeve and three councillors; and for every five hundred additional names another deputy reeve takes the place of a councillor. In this CONSTITUTION OF COUNCILS. 223 way a village or a township rccei\cs larger representation in the county council. Reeves, deputy reeves and coun- cillors are yearly elected by a general vote in villages and townships when such divisions are not dixided into wards like cities ; in case of such a division, councillors elect deputy reeves or reeves. The council of every town consists of a mayor or head of the same (annually elected by general vote), and three councillors annually elected for e\ery ward where there are less than fixe wards, and of two councillors for every ward where there are five or more wards, and if a town has not withdrawn from the jurisdiction of the council of the county in which it lies, then a reeve is added ; and if a town has the names of five hundred persons entitled to vote at municipal elections on the last rexised xoters' list then a deputy reeve is added, and for exery fix e hundred addi- tional names of persons so entitled to vote on such list there must be elected an additional deputy reeve. But the laxv also provides for a reduction of councillors in towns when the electors pass a bylaxv to that effect. The council of every city is composed of a maxor, xvho is the head of the same, and of three aldermen for each xx^ard. Ma>'ors are annually elected by a general vote of the ratepayers in the cit>', and the aldermen by the rate- payers of the respective wards. The laxv also makes arrangements for the formation of a '* provisional council" whenever a junior county of a union of counties wishes to form a distinct municipal division. In such a case a temporary council is formed of the reeves and deputy reeves within the countx^ until a permanent organization is effected under the laxv. The council elect a provisional warden for one year under these circumstances 224 THE MUNICIPAL SYSTEMS. /;/ Quebec the county councils arc composed of all the mayors in the " local municipalities" in the county. These miayors are called " county councillors " in the county council and choose the head or warden every year from among their number. The " local municipal- ities " comprise parishes, townships, towns and villages, which are governed by councils, each of which is com- posed of seven councillors elected by the ratepayers in each municipal district, or appointed by the lieutenant- governor of the province in case of a failure to elect. A councillor remains in office for three years, but subject to the condition that two councillors must be elected or appointed two years consecutively and three every three years. The mayor or head of council is elected by a majority — a quorum — of the whole council and holds office for a year. Cities and many of the towns have special acts of incorporation, and aldermen and council- lors are in all cases elected by a general vote of rate- payers. In the majority of cities the mayors are elected by a general vote ; in some, b}- the board of aldermen. /;/ Nova Scotia the county councils consist of council- lors annually elected by the ratepayers — one for each polling dix'ision of a county electing a member to the house of assembly — and of a head or warden, appointed by the council every year. Town councils are composed of a mayor and not less than six councillors, elected by the ratepayers. Many of the towns have special acts of incorporation but all are now subject to a general act. The mayor is elected annually, and a councillor for two years. In Halifax, which has a special charter, the mayor is elected annually, the eighteen aldermen for three years, one-third being elected every year. CONSTITUTION OF COUNCILS. 225 In Neiv Bninsivick the county councils consist of two councillors elected annually for every parish-except in special cases provided for by law-and of a warden appointed annually by the council. Cities have special acts of incorporation, and elect their mayor and alder- men. /// Manitoba the city councils consist of a mayor or head, and of two aldermen for each ward. The town council, of a mayor and two councillors for each ward Ihe village council, of a mayor and four councillors A council in a rural municipality consists of the reeve (or head) and of such a number of councillors— not ex- ceeding six, and not less than four-as the bylaw of the district may fix. Mayors, aldermen, reeves and council- lors are annually elected by the ratepayers. One alder- man for each city ward is elected for two years. In British Columbia the city councils consist of a mayor, and of not more than twelve and not less than seven aldermen, except in the cities of Nanaimo and New Westminster, which may increase the number to thirteen, including the mayor. Mayors and aldermen are elected annually. Township and district councils con- sist of not more than seven, and not less than four councillors, and a reeve (or head), all elected annually The number may be increased to eight in all. including the reeve, by a unanimous vote of the council. 16 CHAPTER II. NATURE OF THE MUNICIPAL SYSTENTS OF THK PROVINCES. Continued. 5. How a Council Exercises its Poiuers.—d. Election of Councils. — 7. Heads and Officers. - S. Meetings. — g. Bylaws. - 10. Municipal Assessment or Taxation. — 11. Bo}rowinir Powers of Councils.— 12. Historic Origin of Names of Municipal Di7'isions^ etc. 5.— How a Council Exercises its Powers. " After this short summary of the municipal councils in each province we may now continue a review of the features common to the systems of all the provinces. The inhabitants of each of the municipalities described in the foregoing chapter, form a " body corporate " whose powers are exercised by their respective councils under the municipal law. The name of such corporate bodies is " the corporation of the county, city, town, etc.," or, as in Quebec, "the municipality of the county," or "parish," or "town," as the case may be. This legal name should be used on all occasions and in all docu- ments affecting the corporation. The council— generally known as " the council of the city of Ottawa," or " the county of Carleton," as the case may be— has powers only within the limits of its municipal district, except in special cases where the law extends its authority. Its orders within its legal powers must be obeyed by all [226] •«5- - -^s^s.-^ Ciiv Hall, Montreal. [227] 228 THE MUNICIPAL SYSTEMS. persons subject to its jurisdiction. It can acquire real and personal property b)- purchase, sell or lease the same, enter into contracts, and sue and be sued in any cause and before any court like any private and incorpor- ated company or individual. 6.— Election of Councils. All councils are elected by the ratepayers in their respective municipal divisions ; that is to say, by electors rated on real or personal property on the assessment roll. In Ontario, Manitoba and British Columbia, farmers' sons resident with their parents can vote. In Manitoba and British Columbia, persons holding '* homesteads " under the dominion law (see belozv, p. 277) can also vote. In the majority of the provinces, all taxes must be paid before an elector can vote. In all cases, an elector must be a British subject, of the age of twenty-one, and not a criminal or insane. Widows and unmarried women, rated on the assessment roll, can vote in Ontario ; in Manitoba and British Columbia, all women who are taxed in their own right can vote. Wardens, mayors, aldermen, reeves and councillors must in all cases be British subjects and possess a certain amount of real property, varying in the provinces. They must take an oath or make a declar- ation of office and qualification before assuming their seats. The elections are held at such times as the law provides in each province — generally in the first part of January in each year. Nominations of candidates are made by a certain number of electors on a day fixed by the law before such elections. In all the provinces, except Quebec, the voting is by ballot. The laws of the provinces generally — those of Ontario being most OFFICERS OF COUNCILS. 229 complete — provide for the contestation of any municipal election on the ground of violence, fraud or corruption, or incapacity, or informality in the proceedini^s. Corrupt practices can be severely punished. Judges, police or stipendiary magistrates, sheriff and sheriff's officers, jailers, constables, officers of the courts, officers of the councils, persons having contracts with a council, solicitor or attorney of the corporation, cannot sit in any municipal council of the provinces. In Ontario, Quebec, and some other provinces the disqualification extends to tavern- keepers and persons engaged in the sale of liquors by retail. In Quebec no priest or clergyman can sit in the council ; in the other provinces it is optional for them. All persons over sixty years of age, members of parlia- ment, members of government, all persons in the civil serv^ice of the crown, professors of universities, and teachers in schools, firemen and fire companies, are exempted in Ontario and other provinces from being appointed to a council or any other municipal office. In all these cases of exemptions and disqualifications the law in each province must be consulted as it is impossible to give here more than those common to all the pr®vinces. 7-^ Heads and OflBcers of Councils. The head of a council, as shown above, (pp. 222, 223) is a warden, or mayor, or reeve. He is chief executive ofificer of the corporation. He presides over the meetings of the council, signs, seals, and executes, in the name of the council, all debentures, contracts, agreements or deeds made and passed by the corporation, unless the council otherwise provides. It is his duty to be vigilant in exe- cuting the laws for the goverament of the municipality ; 230 THE MUNICIPAL SYSTEMS. to supervise the conduct of all subordinate officers as far as lies in his power ; to cause all positive neglect of duty to be punished ; to recommend to the council such measures as may conduce to the improvement of the finances, health, security, cleanliness, comfort and orna- ment of the municipality. All heads of councils, as well as aldermen in cities are, by virtue of their othce, justices of the peace within their respective municipal divisions as long as they are in office, for purposes arising under the municipal law. Connected with every municipal corpor- ation is a large body of officials, appointed in all cases by the councils, and holding their offices during pleasure. Such officers as clerks, and treasurers, are permanent in their nature, but the majority of others, like assessors, valuators, auditors, road commissioners, or surveyors, pathmasters, poundkeepers, are, as a rule, appointed from year to year. The practice is to continue efficient men in office as long as they are willing to serve. The most important officer of every council is the clerk, whose duty it is to record the proceedings of the council, keep all the books, publish bylaws, and perform numerous other duties regulated by law^ or the bylaws or resolutions of the appointing body. The treasurer receives and keeps all corporation moneys, and pays out the same as the law or the regulations of the council direct. In Quebec and some other provinces the duties of clerk and treasurer are practically combined in an official called secretary- treasurer. One or more auditors, from time to time, review the accounts of all receipts and payments of the officials of the municipality, and report to the council. Other important officers of councils are these: solicitors, to advise councils in all matters of legal doubt or contro- OFFICKKS OF COUNCILS. 23I versy — called recorders in Nova Scotia* ; engineers, in cities to look after public works like \vate*-\vorks, sewai^e, and other matters of public necessity and convenience ; assessors, or valuators, or commissioners (in cities), to make annual lists of all the ratable property, on which the councils can fix the yearly rates levied on the tax- payers of a municipality; collectors, to collect these taxes or rites and pay them to the treasurer; tire wardens and firemen, for the prevention of fires ; fence viewers, or inspectors to regulate boundary and other fences ; pound- keepers, to receive and retain in safe keeping all stra\- animals, which may be restored to the owners on pay- ment of expenses, or else sold by auction after a proper delay ; pathmasters, or road survev'ors, o ' overseers of highways, to look after the condition of public roads, enforce statute labour, and perform other services in connection with the public roads and bridges. The council of any municipality ma\' at any time by bylaw appoint other officers to cany out the provisions of any act of the legislature, or enforce a bylaw of the corpora- tion. The law provides for the establishment of health officers and the taking of proper measures to prevent the spread of contagious or infectious diseases. Provision is made by the existing statutes for the appointment of constables in rural districts and policemen in cities for the preservation of peace and order, and the due execution of the law. In Ontario there is ample pro- vision made for the establishment in cities and towns of courts presided over by police magistrates (see above, p. 174). The councils must first establish police offices, See above, j). 176 note. 232 THE MUNICIPAL SYSTEMS. and affirm the expediency of appointinij salaried police magistrates, and provide for the whole or part of their salary. The lieutenant-governor in council appoints such officers in all provinces except Nova Scotia, v/here cities and town councils appoint. Councils throughout Canada also make provision for the establishment and maintenance of jails, lock-ups, city or town halls in their respective municipal divisions, as the law in such cases provides. 8.— Meetings of Councils. The time for the first meeting of a new council is fixed by the municipal law of each province — generally some time in the first month of the year — but all subse- quent meetings can be held in accordance with the regulations of each council unless otherwise provided. All meetings are held openly, except under special cir- cumstances as defined by the regulations. The head of the council presides over a meeting, and in his absence some member of the council, as the law or regulations order. He maintains order and decorum, but an appeal may be made to the council against his rulings. A quorum or a majority of the v/hole council is necessary for a meeting for ^he transaction of business, but a majority of such a quorum can pass any order, resolution or bylaw, or perform any other act within the powers of the council. As a rule open voting prevails, but in British Columbia the election of officers is by ballot. The regulations generally provide that no member can vote on a question in which he has a direct personal pecuniary interest— the common parliamentary law in such cases. Minutes of proceedings of a meeting must BYLAWS OF COUNCILS. 233 be always read, confirmed, and si^nicd by the chairman at a subsequent meeting. In the provinces of Ontario, British Columbia, Nova Scotia and New Brunswick the head of tlie council votes as a member, and when there is a tie or equality of votes the matter or question under discussion is lost or negatived. In Quebec he can vote on every question, and has also a casting vote in case of a tie. In Manitoba he votes only when there is a tie. Select committees are appointed, as in parliament, for the consideration of special matters of municipal busi- ness, and they must report their results to the council. All the rules of councils are based on those of the house of commons and legislative assemblies of Canada. In all matters of doubt reference is made to the regulations and usages of parliament, directing the conduct of de- bate, divisions, and other matters of order and procedure (see above, p. 109). 9. -Bylaws of Councils. The legislative powers of all councils are exercised by bylaws when not otherwise authorized by statute. A bylaw is a special law of a corporation or municipalit>% which it has a right to pass in a certain form for a local or municipal purpose defined by the general statutory law establishing municipalities. Every council may also make regulations for governing the proceedings of the council, the conduct of its mem- bers, the appointing or calling of special meetings, and generally all such other regulations as the good of the inhabitants of the municipality requires, and may repeal, alter or amend its bylaws. Every such bylaw, to have legal force, must be under the seal of the corporation, 234 THE MUNICIPAL SYSTEMS. siirned by the head, or by the presiding officer of the meeting at which it was passed, and by the clerk or secretary-treasurer of the corporation. The power of passing bylaws gives to the various municipal councils of the provinces a decided legislative character. The subjects embraced within their jurisdic- tion are set forth with more or less distinctness in the municipal acts of the majority of the provinces, especially of Ontario and Quebec — those of Nova Scotia and New Brunswick being less perfectly defined. The council of every city, town or incorporated village may pass by- laws for the construction and maintenance of waterworks, the amounts required to be collected under local improve- ment bylaws, licensing and regulating transient traders, the purchase of real property for the erection of public school -houses thereon, cemeteries, their improvement and protection, cruelty to animals, fences, exhibitions and places of amusement, planting and preservation of trees, gas and water companies, shows, exhibitions, tavern and sliop licenses, public morals, giving intoxicat- ing liquor to minors, nuisances, sewage and drainage, inspection of meat and milk', the weight of bread, conta- gious diseases, fevers, prevention of accidents by fire, aiding schools, endowing fellowships, markets, police, industrial farms, parks, bathing houses, cab stands, tele- graph poles, prevention of fires, construction of buildings, public libraries, charities and numerous other subjects immediately connected vrith the security and comfort of the people in every community. All bylaws must be printed and advertised in one or more newspapers, and posted in public places. In case of aid to railways or waterworks, or the pledge of the CuY Ham., Winnipeg. 235 236 THE MUNICIPAL SYSTEMS. municipal credit for certain other public purposes, defined in the municipal la'.^^ of Ontario, Quebec and other pro- vinces, a vote of the ratepayers and property holders must be taken. In Ontario, where the law is very clear and explicit, the assent of one-third of all the taxpayers of a municipal division is required to give legal force to a bylaw giving aid in any shape to a railway or other company, or raising upon the credit of the municipality any money not required for its ordinary expenditures, and not payable within the same municipal year. In Ontario, British Columbia and Manitoba, the vote is always by ballot, and any resident or other person inter- ested in a bylaw, order or resolution of a council may take proceedings in the courts to quash the same for illegality. The reference of bylaws of municipalities to the ratepayers of a municipal division for their accept- ance or refusal is the only example which our system of government offers of what is known in Switzerland as the referendum (reference) of laws to the vote of the whole people before they can come into operation. 10.— Municipal Assessment or Taxation. The most important duty of every municipal council is the raising of money for local purposes by direct taxation. The burden of taxation is on real property — that is to say, on buildings, land, machinery, trees on lands, mines and minerals, except where they belong to the crown. In British Columbia, improvements on land are exempted up to a certain amount. Incomes are taxable in the majority of the provinces, and, so are bonds, securities, and other personal propert)- within the limitations fi>:ed by the law in each case. The following MUNICIPAL ASSESSMENT. 237 classes of property are free from municipal taxation in the provinces generally: imperial, dominion, provincial and municipal property; Indian lands, churches, par- sonages, and lands immediately connected therewith (except in Manitoba); educational, charitable, scientific and literary institutions; agricultural and horticultural societies ; incomes of the governor-general and lieuten- ant-governors ; household effects and tools in use. In Ontario, also, incomes up to $700 when derived from personal earnings, those up to $400 w hen not so derived, and those of farmers from his farm, are all free of taxes. In British Columbia, also, incomes up to $1,500 are exempt ; in Quebec and Nova Scotia to $400. In some of the provinces special interests are protected. For instance, in Ontario, British Columbia and Manitoba, the produce of the farm in store or warehouse on the way to sale, live stock and implements in use ; in Nova Scotia and New Brunswick, fishermen's boats, nets and outfit to $200. But in all these matters of taxation there are so many differences in the provinces that it is impossible to do more here than refer generally to the subject. Reference must be had to the assessment laws of the provinces in all cases. All municipal, local or direct taxes are raised and levied upon the real or personal taxable property ac- cording to the value given in the roll of the assessors, or valuators, or assessment commissioners appointed by each municipality in the different provinces for such purposes. The council of a municipality assesses and levies upon this taxable property a sufficient sum in each year to pay all debts and meet all legal expendi- 238 TIIK MUNICIPAL SYSTEMS. tures. The laws of the provinces restrain, as far as practicable, the powers of the cor{)orations in this par- ticular, and any person can ascertain by referring to the general law governing municipal bodies, or to a special charter of a city or town, the extent of authority of a council in lewincf a rate and creatinjj debt. In case a person considers he is rated too high on an assessment, or is treated excc[)tionally or unjustly, he can have an appeal to a court of revision, composed of members of the council as a rule, and finally to the courts — the county court in Ontario, Manitoba and British Columbia, and the circuit court in Quebec. In New Brunswick there is a board of valuators to whom an appeal can be made, and leave is also given under exceptional circum- stances to have recourse to the supreme court. In Nova Scotia there is an assessment court of appeal in towns, and thence to the council under certain conditions. 11. -Borrowing' Powers of Councils • All councils have power under the formalities required by the law of each province to borrow money, and to levy special rates for the payment of such debts on the ratable property of the municipality. All bylaws for borrowing money must receive the assent of the ratepayers before they can be enforced. Municipal de- bentures — or legal certificates of a debt clue by the muni- cipality — can be issued to secure the repayment of sums borrowed in accordance with the strict provisions of the law governing such ca-es. All municipal property is liable for the redemption of such debentures and the payment of municipal liabilities. MUNICIPAL DIVISIONS. 239 12.— Historic Origin of Names of Municipal Divisions and of their Officers. In the names of the municipal divisions and of the machinery of municipal administration, we see again some examples of the closeness with which Canadians cling to the names and usages of primitive times of English government. The "township" carries us back to the early days when our luiglish forefathers lived in their village communities, of which the " tun " or rough fence or hedge that surrounded them was a feature. The chief officer or headman of this township was the reeve, who as an "active" or "excellent" member of his community took part in the various assemblies (moots) of the people. The " alderman "—from " ealdorman " or elder man —is a link connecting us with the early gov- ernment of shires (for shire, see above, p. 192), and was an office of high dignity, still represented by the English lord-lieutenant of present times. In Ontario there remains in the legislative electoral divisions a district known as the '' ridinij,"' which is a changed form of "thriding" or '• triding," or a local district made and named by the Danes in English Yorkshire. The ancient English shire, which was under an "ealdorman" for civil and military purposes, became a "county" in Norman times because a count (comte) or earl replaced the former functionary. Our representative body for the local government of a county is no longer called the "folk moot" but the "council," which comes to us from the Normans, who again adopted it from the Latin con- cilinm (or a " collection " of people). The mayor was an important officer connected with the ro}'al palace of 240 THE MUNICIPAL SYSTEMS. France and has also come to us from Norman times — its original meaning of "greater" (major) having been gradually applied to the principal officer of a local com- munity or municipality. The " parish " has its origin in a Greek word, first applied in early English and French times to a " circuit " or district, presided over by a priest or vicar, and which for convenience sake w^as formed into a civil division. Bylaw means simply the law made for the government of a "" bye," which was a name given by the Danes to the old English " tun " or township. BIBLIOGRAPHICAL NOTE. The reader may consult Bourinot's Local Goz'ern?ne>it in Canada, in Johns Hopkins' University Studies, (Baltimore, 1887), and "Transactions of the Royal Society of Canada," 1887, section 2, for a short account of the ori as treasurer or accountant. All accounts and payments are duly audited — two auditors being appointed by cc ancils of Charlottetovvn and Summerside, and one elected by a school district in other cases. The duties of trustees are the same as those in Ontario and other provinces. CHAPTER III. THE PUBLIC SCHOOLS IN MANITOBA AND BRITISH COLUMBIA. /. The Public Schools in Manitoba.— 2. In British Columbia. 1.— I'ublic Schools in Manitoba. In this province there is a department of education composed of the executive council (see above, p. 151) or a committee thereof. It appoints and fixes salaries of inspectors, teachers of provincial, normal and model schools, and directors of teachers' institutes. An advisory board of seven members — four appointed by the depart- ment for two years, two elected by public and high school teachers, and one chosen by the council of the university of Manitoba — determine qualifications of teachers and inspectors, prescribe forms of religious exercises, classify and organize normal, model and high schools, appoint examiners and perform other important duties. Inspectors cannot be teachers or trustees of a public or high school. All education is now free and undenominational by the provincial legislation of 1890 -the Roman Catholics having previously enjoyed denominational schools under the law. All persons in rural municipalities between five and sixteen, and in cities between six and sixteen, are required to attend. Religious exercises are conducted according to the regulations of the advisory board, but pupils whose parents object need not remain. In any .'*'?\ o X o o K u en u Pi i5 o C/3 ai >< 2< :d K H 1 262] PUBLIC SCHOOLS IN MANITOBA. 263 case religious exercises are entirely at the option of the trustees of a school. Three trustees are elected for three years after the first election in a rural district. A secre- tary-treasurer receives and disburses all moneys at the order of the board. In cities, towns and villages two trustees are elected for each ward. One trustee for each ward, as determined by ballot, retires annually ; the other continues one year longer. In every village, not divided into wards, there are three trustees. The schools are supported by grants from the legis- lature, from the proceeds of the sale of public lands granted for that purpose by the dominion government, and taxes levied on the ratepayers of the municipalities under the conditions provided in the law. The taxes are levied by the municipal council on the requisition of the trustees. Collegiate departments for more advanced education are connected with the public schools at Win- nipeg and Brandon, and larger towns whenever practi- cable. A normal school has been established. All teachers must hold certificates of the first, second or third class as issued under the regulations of the depart- ment of education or advisory board. The university of Manitoba is a provincial institution, under the direction of a council, named by the provincial colleges with which it is affiliated, by the convocation, and by the board of education. It is only an examining and degree-conferring body. 2.— The Public Schools in British Columbia. In this province the minister of education and other members of the executive council (see above, p. 151) 264 PUBLIC SCHOOLS IN MANITOBA. constitute a council of public instruction. The govern- ment appoint a superintendent of education, who is also secretary of the council. The schools are free and undenominational, but "the highest morality shall be inculcated and the Lord's prayer may be used at the opening or closing." A provincial board of examiners grant certificates to teachers, which must always be signed by the superintendent. The council appoint one or more qualified inspectors. Schools are divided into common, graded, and high schools. The law contem- plates the establishment of a normal school. In each rural district there is a board of three trustees elected by the householders and freeholders, including wives of such. In city districts there is a board of six trustees, elected by duly qualified electors. To each board is attached a secretary-treasurer to collect and disburse moneys for school purposes. Schools are supported in rural districts entirely by the government. In cities the salaries of teachers and all other expenses incurred by the trustees are borne and paid by the municipal corporations. The government pay a grant of ten dollars per head a year, based on the average actual daily attendance of the public school pupils, to each of the municipal corporations of the cities. Every child from seven to twelve must attend some school or be otherwise educated for six months in every year. BIBLIOCRArillCAL NOTE. The machinery that regulates the public school system of a province can only be thoroughly understood by a close study of its law, and by j^ractical experience of its working. This law is generally compiled and printed in topveni^Ot jnanuals publish^cl by the departments of education. These BIBLIOGRAPHICAL NOTE. 265 manuals also contain the regulations with respect to teachers, examinations, classification of schools, and course of studies m every class of school. The report of Mr. Miller, deputy minister of education for Ontario, on the educational system of his province, is especially worthy of mention in this connection, since it gives a summary which interests the general reader. The following compilations also have been found extremely useful by the writer: The "Code of Public Instruction," compiled and annotated by Mr. Paul de Cazes, F.R.S.C, D.L., secretary of the department in Quebec; a "Manual of the School Law of Quebec, under the regulations of the Protestant committee," by Rev. Elson I. Rexford, B.A., rector of the high school of Montreal; a "Conspectus of the Public Free School System of Nova Scotia," prepared for the Chicago exposition, by Dr. A. H. MacKay, F.R.S.C, superintendent of education. Mr Rexford has added to the value of his manual by giving an historical outline of school organization in the province of Quebec, from 1615 to the present time. These several works, when studied in connection with the very full reports annually published by the educational departments of the provinces, enable us to understand the actual position and practical working of the public schools in every section. The present writer has to express the obligations he is under to the superintendents of education in all the provinces for the facilities they have given him for the preparation of what is necessarily in so small a volume but a meagre summary of the educational system of the Dominion. SEVENTH PART. Government in the Northwest TERRITORIES. CHAFTHR, PAGE. I. — Government 269 II. — Public Lands and Indians 275 [2671 CHAPTER I. GOVERNMENT OF THE NORTHWEST TERRITORIES. I. Territorial Area. — 2. Go7>ernmenf. — j. Administration of Justice. — ^. Municipal Govern}}ient. — 5. School Governjnent- 1.— Territorial Area. The territories of Canada comprise a vast region stretching from the province of Manitoba to the Rocky- mountains, and from the frontier of the United States to the waters of the north. It embraces more than two- thirds of the Dominion, 2,460,000 square miles. This region came into the possession of Canada by the purchase of the rights of the Hudson's Bay company, who had so long enjoyed a monopoly of the fur trade, and used their best efforts to keep it an unknown land. The government of the Dominion now holds complete jurisdiction over the territory\ The provisional dis- trict of Keewatin was fonned some years ago out of the eastern portion until the settlement of the boundary dispute betw^een Ontario and the Dominion : but since that question was settled it has only a nominal existence, while it still remains under the supervision of the lieu- tenant-governor of the province of Manitoba. In 1S82 a large portion of the northwest region w^as divided into four districts for administrative purposes, Assiniboia, now the most populous district, contains about 89,000 square miles, Saskatchewan 101,000, Alberta 105,300, [269] 2/0 GOVERNMENT OF THE TERRITORIES. Athabasca 122,000. Beyond these districts h'es an immense and relatively mknown re