IMAGE EVALUATION TEST TARGET (MT-3) O / y. 1.0 l.i lii |28 |2.5 •'' 12-^ 1112 2 12.0 1.8 125 1.4 1.6 ■• 6" ► % <^ /2 ^ -^ ^ * ^, 'i* // '/ /^ Hiotographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY I4S80 (716) 872-4S03 ^ iV V \\ ^s-* *> <>.'. % O^ \<^4^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Histo.ical Microreproductions / Institut Canadian de microreproductions historiques Tachnical and Bibliographic Notat/Nota* tachniquaa at bibliographiquat Tha inatituta haa attamptad to obtain tha baat original copy availabia for filming. Faaturaa of this copy which may IM bibiiographicaily uniqua, which may aKar any of tha imagaa in tha raproduction. or which may aignificantly changa tha uaual mathod of filming, ara chackad balow. 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Tous las autras axamplairas originaux sont filmAs an comman9ant par la pramiAra paga qui comporta una amprainta d'imprassion ou d'illustration at an tarminant par la darnlAra paga qui comporta una taila amprainta. Un das symbolas suivants apparaltra sur la darniira imaga da chaqua microficha. salon la cas: la symbols — ik> signifia "A 8UIVRE". la symbols ▼ signifia "hIN". Las cartas, planchas. tablaaux. ate, pauvant Atra filmAs k das taux da rMuction diffArants. Lorsqua la documant ast trop grand pour Atra raproduit an un saul ciich*. il ast filmA A partir da I'angla supAriaur gaucha. da gaucha * droita. at da haut an bas. ^n pranant la nombra d'imagas nAcassaira. Las diagrammas suivants illustrant la mAthoda. irrata to peiure, n A D 32X 1 2 3 1 2 3 4 5 6 ffplpp ^h<^ GOVERNMBNT IN CANADA. THE PRINCIPLES AND INSTITUTIONS OF OUR FEDERAL AND PROVINCIAL CONSTITUTIONS. THE B. N. A. ACT. 1807, COMPARKl) WITH THK UNITED HTATE8 CONSTITUTION. WITH A SKKTIH OF THK CONHTITITIONAL HISTORY OF CANADA; BY D. A. O'SULLIVAN, M.A., D.C.L. O/ Omtwiilf Hall, Barrutfr-at-Lnie. Sekotar-in-Latr in f'niveriitji ut Toronto, Hon. I). C. L. Laval. AUTHOB OK "PIIACTICAL fdNVEVANCINd," "HOW To OIIAW A SIMPI.K WILL," "KMATB ON TREATIES AFFKCTINfi CANADA AND THK UMTKl) HTATKH," ETO. SECOND EDITION; ENLAKOKD AND IMPHOVED. TORONTO : CAR8WELL & CO.. PUBLISHERS, 1887. 160880 0%Ul~l-i l//<^H/ / Hnterod according to Act of Parliaiiient of C'aiii iii, in the year one tliousand eight hunilrtid niiil eUihty-Bovon, l>y I). A. O'.icu.iTAN, iu the offloe of tbe Minister of Agriculture. PBINTBD BT IfooBB & Co., Law Pbinteb*, aO AOBLAISB BT. EaBT, TOBOMTO. J "SThis motk 18. lousand 3 of the BY KIND PERMI8SION. KESPECTFULLY INSCRIBED To THK HON. EDWARD BLAKE, BT The Althok. ADVERTISEMENT TO THE SECOND EDITION. rpHE writer took advantage of the long vacation of the -^ present year to prepare the second edition of this work for the press. The order of the edition of 1879 has been retained but the book has been entirely re-written and en- larged to fully twice its original size. The B. N. A. Act and its amendments have been made the text of three fourths of the present volume ; no section has been omitted and in every necessary case the corresponding sections in the U. S. Constitution have been referred to. The chapters on the People and their Rights and the Courts and their Procedure will, it is trusted, be of use to the general public. The chapter on Criminal Law received many useful additions and suggestions from Mr. Irving Q. C. of the Ontario bar and the writer is glad to acknowledge this assistance from such an experienced and distinguished counsel. The history of former governments in Part II is an amplification of the in- troductory sketch in the former edition. It would be out- side the design of the book to make this as conj^plete as it should be. The writer may on some future occasion arrange the mnterials provided for this Part in a constitutional history of Canada. During a period of twenty years the constitution of Canada has been put to many tests. It is less difticult to say now than it was ten years ago, that our federal constitution may turn out to be something different from what the framers of it intended. It cannot be at one and the same time a federation and the reproduction of a constitutional mon- archy. If the provinces are not absolute within their ) Tt ADVERTISEMENT TO THE SECOND EDITION. own legislative liinits, but subject to a veto from the central government, then there in theoretically only one Legislature in Canada. If the central government absorbs all the executive of the government " of and over Canada," there can be none left for the provinces. But the writer hopes to shew in these pugcu that the federation is not endangered by a veto held over the provinces, as a similar one is held over the Dominion, or that the executive power is not as readily at hand for the one as the other. Over each of our governments there is one paramount authority and the administration that would strike at the legislative authority of the provinces is liable to have its own lule applied to its own legislation. The veto is an accident of the Canadian federation as it has been of other leagues, but it no more affects the principles of a federal union than does the absence of sovereignty. A number of tenants may unite as well as a number of landlords. On the question of the executive power the reader will notice that in the U. S. constitution it is vested in the President. That is the executive for the United States. There writs and process run in the name of The People, and Congresi) enacts in that way just as we use the name «f the Queen. The individual or separate States have their executive also in The People, and their process is tested in that way, their legislation is enacted in that way, and still there is not a word about it in the United States constitu- tion. With us the executive power " of and over " Canada is vested in the Queen and it is contended in these pages that the Queen's name is as warranted in provincial mat- ters as it is in matters in the Dominion. On one other point the writer may be permitted to make a remark. That is as to the reserve powers in Canadian legislatures. It will be seen in the chapter on the distri- bution of legislative power (page 95) that there is no analogy ADVERTISEMENT TU THE SECOND EDITION. ▼ii at all between our constitution and that of the American union on the delegation of powers. Two elaborate classes of subjects were prepared by the framers of our union — one to go to the central government, another to the local. It was felt thnt notwithstanding the particularity of these classes there might be something over and above th'jm in both cases What the 91st and !)2nd sections then pro* vided was that any subject not in the central class assigned to the Dominion should go to the Dominion government if it related to the peace, order and good government of all the provinces ; and that any subject not on the local list if for any matter within the provinces should go to the locnl government. The reader will also see that there is no analogy between the judicial power in the United States and the judicial power in Canada, though the practical working of the two judica- tures is the same so far as declaring unconstitutional laws to be void. The courts in Canada are Queen's Courts testing all Dominion and provincial legislation by the standard of an Imperial Statute — the Constitution of Canada. In the United States the judicial power is vested in the Supreme Court and that power is independent of the President and of Congress. These are some of the points that will be found in detail in this volume. The writer studied the United States consti- tution with many aids, but he took the text of the Canadian constitution as his best guide. It is impossible to reconcile many of the judgments of the courts on our side of the line, tile reader will not easily form an opinion from decided cases. But when the whole Act of 18(57 is viewed in its his- tory, its intentions and its lan;^u:i<^e, there is no substantial desire of its promoters that ujuy not be effected by, it. It is, like every federal charter, liable to drift into pure centralism on the one hand or to exaggerated claims for State rights on vm ADVERTISEMENT TO THE BBCUNP EDITION. the other ; over and above this it is liable to be lost in the principles of monarchy and the cxerciso of the veto ))o\ver. Dangers such as these have been met and overcome in the American Union and they can be met and overcome in our own. The writer hopes that this volume will l)e acceptable to the Canadian public as a UHeful book on the constitution. He does not flatter himself that the sale of the former large edition was due to anything more than the pressing neces- sity for some work on the subject ; but he hopoH that the present edition will deserve some of the praise that its predecessor received. He is, however, willing to commit it to the public on its merits, and will be glad to learn from any one who is able or entitled to speak on the subject. The writer is under obligations to Mr. Houston, librarian of the legislative assembly of Ontario, and to Mr. Bain, of the Toronto public library, and gladly avails himself of this opportunity to acknowledge the courtesies extended by them. The index of this edition has been prepared by Mr. W. McBrady, B. A., student-at-law, and the proof sheets com- pared and corrected by him. The Long Vacation, Toronto, 1887. rilEFACE TO THE FIRHT EDITION. TN the compilation ot the foHov m^i; pages the writer has -^ endeavoured to make a fair U8'! if such mater ialH as were within hiH reach, in order tr ffect the oh'*. ;t he intemiud. Preceded hy no writer on the h.hjr,..,, and dcHirouB of rejecting such contempoiary opinit/ iis wan neither judicial nor otlicial nor otherwise authoritative, he lias found the task not at all an easy one. Fr .n the nunihcr of dis- tinguished constitutional lawyers in Canada, .:inl esnecially in this province, one might have heen justified in the expectation that something more permanent than i speech at the hustings or a pamphlet in some V)arty issue would have remained as instructive reading on the subject. As to contemporary opinion, very little of it is entitled to grave consideration. It is needless to say that the writer has carefully avoided using any public expression of opinion, no matter how authoritative it might appear, unless it bore the stamp of .some authority upon it. In regard to decisions of the courts and judicial dkta on the subject, the former must of course bo taken to bo law ; the latter carry weight proportionate to the reputation and ability of the particular judge pronouncing them. It must be admitted that a judge, in construing our Constitutional Act or any section of it or any statute in fact, familiarizes himself necessarily with the spirit of the Act ; and if he goes out of his way to express nn uncalled for opinion, or what may X PREFACE TO THE FIRST EDITION. be deemed uncalled for, it is certainly because on that point he has no doubt whatevi r. Judges have plenty to do in deciding the disputes immediately before them ; and it is to be expected that before commenting on any foreign subject they generally will have entertained strong views on it. The writer makes no apology for regarding such dicta as entitled to great consideration ; and only regrets that he was unable to find more judicial utterances in the law reports than are incorporated herein. The utterances of any of our public men, speaking ia their official capacity as servants of the crown and country, are deserving of consideration next only to what must be regarded as settled law. The writer has faith in the political morality of our leading statesmen to the extent^ at least, that no one of them, acting in an official or, as may be said, a judicial position — as advisers of the crown, as trustees of the constitution — would permit his judgment to be biased by a mere party spirit, or for a temporary party triumph. If it be otherwise in Canada, then it is time we were governed wiiiiout party, as that term is now understood. Accordingly, all official papers and correspondence, both of English and Canadian ministers while in office, bearing on the subject, have been freely used. None of the other sources need comment. In his task the writer has consulted no one and asked no one's opinion. It is only fair to state this, as it may well happen that in a work which was the joint production of the writer and others, any excellence in it would be attributed to them and the defects to himself. Whatever there is in this book deserving cither of praise or blame is attachable to the writer and to no other person. !li: PREFACE TO THE FIRST EDITION. xl It was originally intended to make the work complete for each province as to the executive departments and to add the courts of law thereto. This was abandoned, partly because some necessary information from professional gentlemen in the other provinces did not come to hand in time, and also because, if rumor be true, a description of the courts in Ontario as they are now constituted may not apply for any length of time. Some other alterations were made in the plan of the work after portions of it were in type. The indulgence of the public will have to be asked in regard to any errors in this edition. Though in con- templation for some time, it was entirely remodeled and re-written within the past two months and it was put through the press very rapidly. The writer acknowledges with pleasure the assistance he has received, both in the preparation of the index and otherwise, from Mr. C. L. Mahoney and Mr. A. A. Archbold, students-at-law. Toronto, December, 1879. LIST OF AUTHORITIES USED IN THE IMMRDIATB BRRPAUATICN OF THIS WORK. i«' Bagehot — The English Constitution. Blackstone's Commentaries. Bourne's Story of Our Colonies. Chalmeu's Opinions of Bistinguishetl Lawyers. CiiiTTY on the Prerogatives of the Crown. Clark's Colonial Law. Coolky's Constitutional Limitations. Cox's liritish Commonwealth. FiNLAYs )n's History of the Privy Council. Hallam's Constitutional History of England. Hodgin's Voters' Lists. Lattey's l*rivy Council Practice. Macfie's British Columbia and Vancouver's Island. Martin on the Colonies. McDonald's ]3riti8h Columbia and Vancouver Island. McGregor's British America. Orders in Council — Imperial, Dominion and Provincial. Pomeroy's Constitutional Law. Beports of English and Canadian cases in the Privy Council, Supreme and Provincial Courts. BuLEs of the Senate, Commons, and the Provincial Assem- blies. Sedgwick's Constitutional Law. Sessional Papers — Dominion and Provincial. State Papers and Opinions of Officials on Constitutional points. Statutes — Imperial, Dominion and Provincial. Watson's Constitutional History of Canada. CONTENTS. PART I. THE CONSTITUTION AS IT IS. CHAPTElt I. PAGES 1-14 THK MONARCHICAL I'KDEHATION. The intention of the provinces in forminR ii nnion — The preamble of the H. N. A. Act — General view of the Act— Theexecntive— Hovereinnty — What in a federal union — The division of jiowersin it— What is the British constitution— The unity of the powers in it— ()i>inion of Mr. Blake — Mr. Dicey and others. CHAPTER II 15-25 THE CONSTITUTION OF CANADA. The constitution, the agreement of the provinces — Federal union with monarchic principles — Executive "of and over Canada'" in tlie Queen — A parliament with two houses constituted and uncliiin^eable — A privy council jurisdiction of parliament limited lenisiatively— Provincial jurisdiction defined — The executive power follows the lefjislative power in a K deration— The provincial constitutions and their alteration — The judicature and its peculiar functions. CHAPTEB Tir 2G-39 THE PARLIAMENT OF CANADA.— THE QUEEN. The Queen — The first estate— The fiovernorCieneral — His Deputy— ^ Death of Hovereign — Kununons senators, speaker of senate — Calls tojjcther parliament -Other Duties — Judges -I^ieutcnHiit-Ciovtrnors —Statutory Powers -.Vets of 171(1, IHIU, IH.'A, lH(i7— Royal instruc- tions -Mr. Rlake and Earl Carnarvon— Duties of Governor — Mr. Todd's views— Duke of Newcastle's instructions. mfTM I XIV CHAPTER IV. CONTENTS. PA0B8. 40-50 THE PARLIAMENT OF CANADA.— THE SENATE. Composition of the senate — Limited to 78 — The three divisions— Qualifi- cations of a senator — How the seat becomes vacant — Title and pre- cedence — Number in the cabinet — Speaker — Quorum — Privileges — The House of Lords — Additional senators— Rule in such a case — Reason for a second chamber — Mr. Smith's view — Mr. Todd's. CHAPTER V. 51-58 • • THE PARLIAMENT OF CANADA— THE COMMONS. Former and present composition of the Commons — Who may not be members — Who may and who may not vote for members — Election trials — Duration of the Commons— Speaker — Quorum — Privileges of the house, of its members. CHAPTER VI 59-06 THE QUEEN'S PRIVY COUNCIL FOR CANADA. Who are privy councillors and who cabinet councillors— Oath and office and duties— Number — Portfolios— Carry on administrative govern- ment with approval of parliament — Cabinet questions —Relation to executive and to legislature — Privy council a peculiarly British insti- tution. CHAPTER VII 67-82 THE PRIVY COUNCIL— DEPARTMENTAL ADMINISTRATION AT OTTAWA. Ministers with portfolios — Salaries — Power of investigation — Depart- ment of justice, powers, duties, officers— Finance revenue, currency, banks — Agriculture, immigration, manufactures, patent office, copy- right, statistics — Secretary of State, writs, commissions, proclama- tions, N. W. mounte4 police— Marine and fisheries, pilots, light houses, shipwrecks— Militia and defence, classes of militia, districts, exemptions, ^lensions. CHAPTER VIII 83-95 THE PRIVY COUNCIL — ADMINISTRATIVE (Continued.) GOVERNMENT. Ill The department of customs — Inland revenue, excise, weights and mea- sures, stamps, tolls — Interior, Indian affairs, crown lands, geological survey, N. W. mounted police — Post office, powers and duties, postal union, money orders, letters — Public works, officers, works — Rail- ways and canals — Public printing and stationery, Queen's printer, statutes, Canada Gazette — Indian department — Trade and commerce — The high commissioner for Canada. CONTENTS. XT PAGES CHAPTER IX :... 96-113 THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. Provincial and Dominion 80verei);nties, opinions of eminent Canadian judges— Sovereignty in the United States, classes in the i)Ist section — Classes in the 92nd section — Education— Concurrent jurisdiction — Grouping of subjects assigned to the Dominion — Assigned to the provinces — Disputed jurisdiction— Cases— Reserve powers, distribu- tion of powers — Comparison with American union — Mr. Dicey on the principle of distribution — General powers of parliament — The Territories. CHAPTER X 114-119 DISTRIBUTION OF REVENUE, ASSETS AND DEBTS. Dominion assets, public works schedule, duties, revenues, stocks — Debts, consolidated revenue fund, charges on it— Provincial assets, lands, mines, etc. CHAPTER XI 120-125 PROCEDURE IN PARLIAMENT-BILLS. Kummoning parliament — Speaker of the commons — Speech from the throne — Business of the houses — Privileges of members — Different stages of a bill, conferences, how a bill becomes an Act, peculiar bills, supply, divorce, private bills, deposits — Prorogation, dissolution. CHAPTER XII 126-138 CONSTITUTION OF THE PROVINCES. Less particularity in describing the provincial constitutions than the Dominion — Comparison with U. 8. constitution — Veto— Statutory description of the provinces, executives — Ontario and Quebec, Nova Scotia and New Brunswick — Powers common to all — Disallowance — Strict and relaxed views of the constitution. Mr. Justice Gwynne — Chief Justice Sir William Ritchie, provincial autonomy. CHAPTER Xm 189-146 THE PROVINCIAL LEGISLATURES. Lieutenant-Governors, in Ontario and Quebec, in other provinces — Former governors — Powers, dismissal, opinions of Earl Kimberly, of Sir John Macdonald, Mr. Justice Gwynne- Legislative assem- blies, procedure, — Extent of disallowance, Mr. Lash's memorandum. XVI CHAPTER XIV. CONTENTS. PAGES 147-164 THE PROVINCES— ONTARIO. Legislature, how composed, one Iiouse, members' qualifications — Speaker, quorum,'procedare — Executive council, departments — Attorney-Gen- eral—Provincial treasurer, agriculture— Commissioner of crown lands — Commissioner of public works — Minister of education. CHAPTER XV 165-17^ THE PROVINCE OF QUEBEC AND OTHER PROVINCES— THE TERRITORIES. Quebec, two houses, members, otherwise similar to Ontario, Judges — Adjustnient l)etween the old Canadas— Nova Scotia and New Bruns- wick unchanged — Manitoba created — British Columbia — Prince Ed- ward Island— The North West Territories— Keewatiii. CHAPTER XVI 176183 THE JUDICATURE. Defects of written constitutions, imperfect description of boundaries to legislative powers— Position of the courts — Different sources of laws — The judicial power in the United States, in Canada, similar duties but dissimilar origin. :il CHAPTER XVII 184-195 THE COURTS. The judicial commlLtcc of the privy council, composition, jurisdiction, discretion as to appeals, procedure, judgment— The supreme court of Canada, jurisdiction, court of last resort, sittings, practice and pro- cedure—The exchequer court of Canada, new constitution, jurisdic- tion, to follow English practice, sittings, writs run tlirough Canada — The maritime court of Ontario, jurisdiction, judge, practice. CHAPTER XVIII 196-20r) PROVINCIAL COURTS, CIVIL PROCEDURE. OFI THE LAW. ERS OF Procedure in civil matters belongs to the provinces— In criminal matters to tlie Dominion — Want of uniformity in laws and procedure as to projierty and civil rights, old divisions of English courts, appeal courts — Equity and common law courts, cases heard in lirst instance, superior and inferior courts — Object of procedure and pleadings — Writs, statements, record, issue, — Trial, verdict, e.xecution —Officers of the law, attorneys, solicitors, counsel, notaries, sheriffs, coroners. CONTENTS. XTll CHAPTER XIX. WAGES 206-222 PROCEDURE DEFINED BY THE DOMINION PARLIAMENT- CRIMINAL LAW AND ITS OFFICERS. Criminal law, Ontario, Quebec, etc — Information, inquisition, present- ment — Criminal information, leave to file — Procedure to trial, accu- sation, evidence, committal — Grand jury, bill, petit jury, trial, sentence — Extradition— Justices of the peace, ex officio justices, summons, warrant, conviction, certiorari, committal, felony, police magistrates — Coroners, appointment, functions, investigation, jury, finding, committal, inquisition — County attorney, duties — Crown counsel. CHAPTER XX 223-231 THE PEOPLE— SUBJECTS, ALIENS, DENIZENS. \Vho is a subject— Who an alien — Residents, domicile, capacity of alien, subjects by birth, by naturalization, oath of residence, of allegiance — Denizens — Titles under confederation, governors, privy councillors, senators, sjieakers, provincial councillors — Rank of the foregoing, judges, bishops, army and navy officers, retired judges. CHAPTER XXI 282-244 THE PEOPLE, THEIR RIGHTS. Representation, franchise, suffrage, basis of representation — Qualifica- tions in the Dominion and the provinces — Ontario — Public meetings, liow called, riot act — Petitions, when necessary, how prepared, how presented — The press, libel, civil and criminal, Ontario Act, retrac- tation — Commissions of enquiry — Local government, municipalities, townships, counties, villages, towns, cities, by-laws, control of the courts— Religious freedom, equality of all denominations, no estab- lished church, the Church of England, the Roman Catholic Church, public worship protected, statutes, Christianity part of the law of the land. ft XVUl CONTENTS. illi PART II. FORMER GOVERNMENTS IN CANADA AND IN THE PROVINCES. PAGES. INTRODUCTION 245-248 CHAPTER 1 249-268 EARLY DIVISIONS OF THE CONTINENT— CANADA. Three claimants of the continent, England cast of the Mississippi, France west of it and north of the lakes, Spain to the south and west — Treaties, Ryswick, Utrecht, Aix-la-Chapclle, Paris, 1763, Versailles, 1783 — Boundaries— French regime, Seven years' war, fail of Quebec, of Montreal, capitulationS'-Military government, 1759-1763. CHAPTER II 259-267 THE TREATY OF PARIS-1763 TO 1774. ;;ili Fourth section of the treaty — Clause as to religious freedom, opinions — Royal proclamation of 1703. islands given to Nova Scotia, to New- foundland — Assembly promised — Governors, laws, courts, commis- sions — Petition for an assembly, politics in England when Quebec Act was submitted. n CHAPTER III 268-277 THE QUEBEC ACT— 1774 TO 1791. Petitions for the bill, Mr. Masercs, reports of the debates — Boundaries of Quebec — Provisions as to religious worship, civil law of Canada to prevail, criminal law of I'higland in force— Feeling in the other colonies in America— Government by advising council, no assembly — I'^atablishmcnt of courts, liabeas corpus— Sir Guy Carleton, com- missions issueil, division of Western Canada, discontent under the government, preparations for a change in mode of government. CONTENTS. aiAPTERIV THE DIVIDED CANADA8.-1791 TO 1841. XIX PAGES 278-285 retitioiiB preceding this Act, Mr. LymborKer's desire to rt'iieal Quebec Act, for a new constitution, for one province -Entflish population, ^^>KX 335 PLAN OF THE WORK. I. — PUKSKNT FoilM OF GOVKUNMENT. Page. The Parliament of Canada 1-67 Administrative Government at Ottawa 67-96 Distribution of Legislative Powers 96-113 Pievenuo Assets, etc., of the Dominion 114-120 Procedure in Parliament 120-126 Constitution of the Provinces and Territories 126-176 The Judicature and Procedure 176-223 The People— their rights, etc 223-244 II. — FoRMRU Governments. Early History 249-25B The Treaty of Paris 259-268 The Quebec Act 268-278 • The Constitutional Act, 1791 278-286 The Union Act, 1840 286-292 The United States Constitution, the Canadian Con- stitution of 1867, the principal sections of the Quebec Resolutions — the B. N. A. Act of 1871 and the Parliament of Canada Act 1875 are given in the Appendix 296-334 ii| GOVERNMENT IN CANADA. PART I. THE CONSTITUTION AS IT IS. CHAPTER I. THE MONARCHIC FEDERATION. The intention of the provinces in forming a union— The preamble of the B. N. A. Act-General view of the Act— The executive— Sovereignty— What is a federal union—The division of powers in it— What is the British constitution— The unity of the poivers in it- Opinion of Mr. Blake— Mr. Dicey and others. The present constitution of Canada was framed with a view of protecting the diversified interests of the several provinces composing it and of securing efficiency, harmony and permanency, in the working of a union of these pro- vmces. With that view representatn-ps of those colonies which originally formed the union, agreed to a general government charged with matters of common interest to the whole country, and local governments charged with 8. a.C. a liHI' 3 OOVERNMENT IN CANADA. the control of local matters within their respective Hections, for each of the provinces. It was desired as far as the cir- cumstances would permit, to follow the British constitution as a model ; and the executive authority' or government was agreed to he vested in the Sovereign of Great Britain and Ireland and to he administered according to the principles of the British constitution. There was to be a general legislature or parliament for the federated provinces, empowered to make laws for the peace, welfare and good government of the federation — so far as a colony could go — but to have no legislative control over a class of speci- fied subjects. This excepted class of subjects was reserved t) the legislatures of the provinces, and these legislatures were to have exclusive control over them. The local gov- ernments and legislatures were created at the same time and were to have the power of constructing their own constitutions as they thought best ; the local legislatures were to have the power of amending them from time to time. "Where concurrent jurisdiction obtained over any one subject, the laws of the general parliament were to prevail over those of the local legislature (a ). These wishes of the representatives of the provinces were ilrafted into an Imperial statute called " The British North America Act, 1867, " and came into force on the 1st of July of that year. The preamble of the Act states that, "Whereas the provinces of Canada, Nova Scotia and New Brunswick have expressed their desire to be federally united into one Dominion, under the crown of the United Kingdom of Great Britain and Ireland, with a constitution similar in principle to that of the United Kingdom, and " Whereas such a union would conduce to the welfare of the provinces and promote the interests of the British Empire, (a) See Quebec Besolutiona, 1 to 7. THB MONARCHIC FRDERATION. 9 " And Whereas on the estahUHhinent of the union by authority of parliament it is expedient not only that the constitution of the legislative authority in the Dominion be provided for, but also that the nature of the executive government therein be declared, " And Whereas it is expedient that provision be made for fhc eventual admission mto the union of other parts of British North America, " Be it therefore enacted, etc. " Then follow the terms of the union — the executive gov- ernment and authority of and over Canada, the privy council, the Governor-General, the legislative powers of the parliament of Canada — occupying some fifty-seven sec- tions of the Act ; then the executive and legislative powers of the provinces, and the last third of the Act to matters of common interest, to the judicature, assets, etc., of the Dominion and the provinces. The preamble of the Act has been given in its exact words, because there are two ideas in it that mUst be kept constantly in view in any discussion upon it (/>). (a) The provinces desire to be federally united ; with (h) A constitution similar in principle to that of the United Kingdom of Great Britain and Ireland. (b) Mr. Dicey in hia " Law of the Constitution " SHys : Tlie pre- amble to the British North America Act, 18r>7. auscrts with official mendacity that the provinces of the present Dominion have expressed their desire to unite into one Dominion, with a constitution similar in principle tothatof the United Kingdom. Jf preambles were intended to express the truth, for the word " Kingdom," ought to liave been substituted " States. " Mr. H. Jenkins, C. B., undertakes to answer Mr. Dicey, {Mint- ing out that " the executive is not elected by the people, nor is it inde- pendent of parliament, in the way in which the President of the United States is independent of congress, v.'ith ministers who cannot sit there. On the contrary the executive is carried on by means of ministers, re- sponsible to parliament just as it is in England." — Law Quarterly lieview, April, 1887. If ill! 1> 4 GOVERNMENT IN CANADA. It is not a little remarkable that the enacting part of the British North America Act should, notwithstanding the language of its preamble, contain no reference to the pro- vinces being federally united, or to the Act itself being the consummation of a federal union. The word union however occurs very often in the pre- amble and in the Act, and it must be taken to mean a federal union with a constitution similar to that of the United Kingdom, because the second recital of the ,>reamble refers to " such a union," etc. The union is effected by a proclamation on a certain day ; and the Act declares that " the provinces of Canada, Nova Scotia and New Bruns- wick shall form ^nd be one Dominion under the name of Canada, and on and after that day those three provinces shall form and be one Dominion accordingly." The fifth section is as follows : Canada shall be divideu into four provinces named Ontario, Quebec, Nova Scotia and New Brunswick. Canada^before the passing of the Act was itself a union of two provinces, but it did not come, as a union, into the new union : it was " deemed to be severed and shall form two separate provinces " as is the language of the sixth section, — Upper Canada constituted the province of Ontario and Lower Canada the province of Quebec. The other two provinces retained their former names and limits. The Act then proceeds in some forty subsequent sections to deal with the new Canada, giving it a constitution similar to that of Great Britain — executive, the Queen represent- ed by a Governor-General, a privy council, and two houses of parliament. In the twelfth section it collects together all the powers, authorities, and functions of the late Governors or Lieu- tenant-Governors of the three provinces forming the union, THE MONARCHIC FEDEBATION. and vests these in the Governor-General of Canada, " as far as the same continue in existence and capable of being exercised after the union in relation to the government of Canada." There is nothing in this one third of the British North America Act in regard to any distribution of legislative power, nor indeed anything to show that there is to be a limitation on any of the powers of the government of Canada. By the seventeenth section " there shall be one parliament for Canada consisting of the Queen, an upper house styled the senate, and the house of commons." The legislative powers of this parliament are given by the ninety-first section, and in the preceding sections the pro- vincial constitutions are set out in detail. The executive power in the provinces does not appear to be so clearly brought out as is the executive power over Canada. Whatever may have been in the minds of the framers of the Act this part of it is curiously worded. Even the printing is significant. The whole Act is divided in this way : Preamble. I. Preliminary, [yame of the Act, application to the Queen.] II. Union. [Uniting the Provinces; diiiding Canada into Provinces.] III. Executive Power. Vested in the Queen ; Privy Council ; Governor.] m IV. Legislative Power. [Parliament at Ottawa ; Queen, Senate, and Commons.] V. Provincial Constitutions. Executive Power. 6 GOVERNMENT IN CANADA. ii M VI. D'siributionoftbe Legislative Power. Powers of the Parliament; exclusive powers of the Provincial Legislatures. VII. Judicature. VIII. Revenue; Debts; Assets; Taxation. IX. Miscellaneous Provisions. X. Intercolonial Railway. XL Admission of other Colonies. It is worthy of note that the first three heads seem to apply to Canada as made up of the provinces, not so evidently the Canada of one parliament. The parliament is con- stituted in IV., and although the Queen is named in that head as the first element of parliament, the executive authority of and over Canada is vested in her by a preced- ing section. This authority is also " continued " in the Queen, an expression that should apparently refer to something having a previous existence. Now the Canada of the Act had no previous existence, but was created by it. It would therefore not be a strained construction to refer the preceding section nine, to the provinces as well as to the Dominion. ( The first question we have to consider is, • WHAT IS A FEDERAL UNION ? It would appear from the preamble of the Act that the principles involved in a federation were to be of the essence of the compact, and that the principles of the British con- stitution were to be adjusted to that state of affairs so far as they were applicable. This will be the more apparent when a consideration of federal principles is fully under- stood. These are quite new in British institutions and we must look elsewhere for any experience in their workings. I'll' III II THE MONARCniO FEDERATION. 7 The United States of America is offered as a convenient example of a federal union though strictly it is not a federal union. In the year 1776 the old thirteen colonies declai'ed themselves independent sovereign states. They soon after formed a confederation but without giving it much execu- tive power, and after an experience of ten years they found how useless it was and how necessary some adequate executive was over the whole people. In 1787 a convention met and settled the present constitution of the United States — nine states adopting it at the time and the others coming in subsequently. The States were theretofore sovereign states — they conferred certain powers on the central government and they reserved all others to them- selves. Many of the ablest men in the union were of opinion that b' reason of the reserved powers and for other reasons the States remained sovereign states and could go out of the union as they pleased. It took a war to decide that this was not the case — that they were only one people (c). " We the people of the United States," are the opening words of the constitution, and these were fatal to state secession just as soon as the people of the United States vested the executive power in the President of the United States : the constitution in all its provisions looked to an indestruct- ible union composed of indestructible states. A federal union then means two perfectly independent co-ordinate powers in the same state. The powers of each are equally sovereign and neither are derived from the other. The state governments are not subordinate to the general government, nor the general government to the state gov- ernments. They are co-ordinate governments standing on the same level and deriving their powers from the same (e) It is not pretended that the war of 18()0-()4 decided the question judicially. 8 GOVERNMENT IN CANADA. sovereign authority. In their respective spheres neither yields to the other. Each is independent and complete in its own work ; incomplete and dependent on the other for the complete work of government, (d). In every federal union there are these two powers oper- ating over the same territory and over the same people. The power of one legislature to make laws on one class of subjects for every one in its own territory, is quite consis- tent with the power of another legislature to make laws for the same people on all other subjects. The power of making laws is useless without an executive power to carry them out, and it follows that in every federal union there must be a division of the executive power similar to that in the legislative power. Such a division is unknown in the British constitution, where the executive power centres in the Queen. In our constitution " the executive govern- ment and authority of and over Canada is," by the Act of the Union, "declared to continue and bo vested in the Queen ;" but that is no more mutatis mutandis tlfan the expression : "We, the people of the United States, " so far as the government of that country is concerned. The United States government and the individual state governments have each an executive, making up in the aggregate the sovereign power of the people ; the central government sovereign in one set of subjects everywhere ; the state (d) Brownson's Works, vol. 18, Politics, pp. 1'2(), 272. Mr. Freeman gives this definition : Two requisites seem necessary to constitute a federal government in its most perfect form. On the one hand each of the members of the union must be wholly independent in these matters which concern each member only. On the other hand all must be sub- ject to a common power in those matters which concern the whole body of members collectively. Federal government is in its essence a com- promise between two opposite political systems. It is one that forms a single state in its relations to other nations, but which consists of many states with regard to its internal government Elsewhere Mr. Freeman describes a federation as having " a govern- ment co-ordinate with the state governments, sovereign in its own sphere, as they are sovereign in their sphere." THE MONARCHIC FEDERATION. 9 governments sovereign in all others within their own terri- torial limits. In a colony such as the old Canada was, and the present Canada is, it makes no difference whatever, for the appli- cation of these federal principles, that we are short of the sovei'eign power to begin with. We are not concerned with sovereignty but only with executive power (c). The imperial parliament has a portion of this sovereign power, the provinces have another portion, and the Dom- inion government has the remainder. From a federal point of view there are two divisions in the executive, as in the legislative branches of government. In the United States no difficulty is experienced in the executive of the nation, as contra-distinguished from the executive of the states, but with us it has been denied that the ex- ecutive in the provinces is the Queen. The provinces of Ontario, Quebec, Manitoba, and British Columbia head (f) Sovereignty under a federal system does not reside eitlier in the general or in the local governments; in the United States it does not reside in fact in both of these, but is in the Convention which moves the constitution. All the American constitutional writers speak of a divided sovereignty, while the English writers from Austin down regard this as a contradiction in terms. Executive power may be divided, and the difficulty in Canada is in accepting any federal doctrine on a point so patent under British principles as the unity of the executive. See Chap- ter in the Powers of Parliament, jmat. Mr. Jenkyns, who criticizes Mr. Dicey, brings himself however to this remarkable concession: — "A truer position would therefore seem to be to recognize that sovereignty may be divided, and that with a rigid con- stitution such as that of the United States each of two or more different bodies may within limits assigned to its jurisdiction be legally sov- ereign." Daniel Webster says : — " The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe sov- ereignty is of feudal origin and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives and powers. But with us, all power is with the people. They alone are sovereign; and they erect what governments they please, and confer on them such powers as they please. None oF these governments is sov- ereign, in the European sense of the word, all being restrained by written constitutions." Il'l,::l| \li 10 GOVERNMENT IN CANADA. their statutes " Her Majesty, by and with the advice and consent &c., enacts as follows" : shewing that the govern- ments in these provinces believe Her Majesty to be a part of their legislatures. On the other hand, there are many judges and statesmen who regard this as unwar- ranted and unauthorized; as yet no settlement of this divergence of opinion has been arrived at. The constitutions of the provincial executive authority in Nova Scotia and New Brunswick remained as before the union, while in Ontario and Quebec the new Lieutenant-Governors, though appointed by the Governor-General of Canada, have the same powers, authorities and functions as their predecessors, 80 far as provincial legislation goes. Besides the heading on the provincial statutes, which remains as before 1867, the grants of public lands, always made by the crown, come within the executive of the province ; and this is only one of the many instances where the crown would seem to bo of necessity acting immediately in the affairs reserved to the provinces (/). It would seem then that the constitution of Canada is to be taken as on the federal basis, but that the principles of the British constitution are to be applied to the working out of government whenever and wherever such principles can be applied. It is to be a federal union " with a constitution similar in principle to that of the United Kingdom. " It is difficult to conceive of forms of governmeat more radi- cally opposed to each other tha-n a federal union and a constitutional monarchy. " The whole British system," says Mr. Blake, " is in contradiction to the federal system. Their system is one of legislative union ; it is based upon the omnipotence of the sole and central parliament." The first thing that presents itself is, that in a federation, (/) Mr. Mowat is of opinion that " it is easy to demonstrate that far more of what is prerogative falls within the acknowledged authority of the provinces than within the authority assigned to the Dominion. " MONABCHIC FEDEBATIOK. 11 there being two sets of powers in the state, there must, of necespity, be two sets of legislatures, and consequently be two constitutions. Are both of these constitutions to be "similar in principle to that of the United Kingdom ?" Or which one of them, if not both? The central government is managed by a parliament, of which the Queen is expressly one of the component parts ; but in view of the fact that the local governments have had legislatures, with officers and machinery very like a parliament, is the Queen necessarily excluded from being a part of their constitutions? But however that may be, is not this certain, — " the executive power of and over Ca'^ada is vested in the Queen ;" the cen- tral government has a portion only of the legislative power, and can wield only a corresponding portion of the execu- tive ; now what power has the right to say that it is the Queen, is the executive, for the remainder ? The conclusion seems to be irresistible, that for whatever purpose the executive of the legislature of a province requires the Queen, the Queen is there as amply and as necessarily as she is in the Dominion. Whatever doubt there may be as to the executive powers, it must be conceded that all similarity between a federation and a constitutional monarchy vanishes as one comes to consider the other functions of government ; it is express that the law-making function is the opposite of what ob- tains in England, and it is undeniable the law-interpreting function is unheard of there. The judicature in a federal constitution has very important powers and duties, and stands towards the legislatures in a way altogether unknown under the British constitution. The courts not only de- cide the rights of litigants before the law, but they declare whether or not any particular statute has been enacted by the legislature having the authority to pass that statute. It is their duty if an Act does not come from the proper legis- lature, to say that it is void, it is unconstitutional. They / 12 OOVEHNMENT IN CANADA. place an authoritative interpretation and construction upon the acts of the legislatures, judge when a given state of facts does or does not come within the purview of the law, and they decide not only as between the powers of the legislatures themselves, but also declare as between their legislation and the paramount law of the constitution whether it be compatible with the ultimate authority in the empire. " The question never arose, '' said Mr. Blake in his speech on the Supreme and Exchequer Courts Acts, " never could arise, to British statesmen or a British judge, whether an Act of the British parliament, affecting British subjects, is within the competency of that parliament or not. Such a notion is to them preposterous. It is to them incredible that such a question could be raised. " III :!iiii PRINCIPLES OF THE BRITISH CONSTITUTION. The chief features of the British constitution are very well known. Briefly, they are the unity of its executive, the omnipotence of its legislature, and the unqualified subor- dination of the judicature to the statute law. The Queen is the executive and the apex of constitutional power. This executive is one and indivisible, it is the head of the legislature, it is the source of the judicature. " Very few propositions in politics," says Macaulay, " can be so per- fectly demonstrated as this, that parliamentary govern- ment cannot be carried on by two really equal and inde- pendent powers in one empire." The British legislature has no division of its powers, it legislates on all classes of subjects and there is no limit to its powers. In a sense it is omnipotent — that is it can do whatever is not impossible ; it directs the executive in practice, it is practically the parliament. It rules by a MONARCHIC FEDERATION. 13 committee called the privy or cabinet council, its measures must be interpreted by the judicature and carried into effect by the executive. In Great Britain the constitution imposes no restriction on the power of government ; in the United States of America, as with us, the constitution divides the powers conceded by the people to government between the general government and the particular state governments. Strictly the government is one and its powers only are divided and exercised by two sets of agents or ministries. The American system is not founded on antagonism of classes, estates or interests, and is in no sense a system of checks and balances : the British constitution trusts to that antagonism to preserve the government from pure centralism ( years from his appointment, on assigning cause for such removal. In March 1878, M. Letellier was Lieutena*^*- Governor of Quebec and complaining that his ministers not accept his recommendations, he dismissed tlicm, sum- moned others and reported the case to the Governor- General. The dismissed premier, M. de Boucherville, sent in a counter-statement, and subsequently a petition came from certain members of the ex-ministry. The government in power at Ottawa took no action, but in the following year Sir John Macdonald, as chief minister, advised tbe re- moval of M. Letellier from ofl&ce, as his usefulness was gone. (Sessional paper 1878-9). The Governor-General in council may disallow Acts of a provincial legislature within one year after their enactment in the same way ns a disallow- ance of an Act of the parliament of Canada is signified England, except that in the latter case two years } allowed to pass instead of one. The power of vhe Governor-General in council to disallow a provincial Act is as absolute as the power of the Queen to disallow a Dominion Act, and is in each case to be the result of the exercise of a sound discretion, for which exercise of discretion the executive council for the time people, mu8t be done on the advice of his council, no matter whether so expressed or not. See Sir John A. Macdonald's letter to Sir Michael Hicks Beach on the Letellier question, and the Hon. Edward Blake on the Royal instructions to Lord Dufferin as to exercise of prerogative of pardon by a Governor-General. Sir John Macdonald says : " Long before confederation, the principle of what is known as ' responsible govern- ment ' had been conceded to the colonies, now united in the Dominion. Whether, therefore in any case power is given to the Governor-General to act individually, or with the aid of his council, the act as one within the scope of the Canadian constitution must be on the advice of a re- sponsible minister. The distinction drawn in the statute between the act of a Governor and an act of a Governor in council is a technical one, and arose from the fact, that in Canada for a long period before con- federation, certain acts of administration were required by law to bo done under the sanction of an order in council, while others did not require that formality. In both cases, however, since responsible govern- ment has been conceded, such acts have always been performed under the advice of a responsible ministry." THE PARLIAMENT OF CANADA. 81 bein^ is, in cither case, to be responsible, as for other acts of executive administration, {e). The twelfth section of the British North America Act relates to the general powers of the Governor-General and is as follows : " All powers, authorities, and functions which, under any Act of the parliament of Great Britain, or of the parliament of the United Kingdom of Great Britain and Ireland, or of the legisluture of Upper Canada, Lower Canada, Canada, Nova Scotia or New Brunswick, are at the Union vested in or exerciseable by the respective Governors or Lieutenant-Governors of those provinces, with the advice, or with the adv e and consent, of the respective executive councils thereof, or in conjunction with those councils, or with any number of members thereof, or by those Governors or Lieutenant-Governors individually, shall, as fur as the same continue in existence and capable of being exercised after the union in relation to the govern- ment of Canada, be vested in and exerciseable by the Governor-General, with the advice or with the advice and consent of or in conjunction with the Queen's privy council for Canada, or any members thereof, or by the Governor-General individually, as the case requires, sub- ject nevertheless (except with respect to such as exist under Acts of the parliament of Great Britain or of the par- liament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the parliament of Canada." The Acts of the parliament of Great Britain which could relate to this subject are 14 Geo. III., cap. 83, and 31 Geo. III., cap. 31, both of which have already been referred to as the Quebec Act of 1774 and the constitutional Act of 1791. (e) Per C. J. Harrison in I.eprohon v. Ottawa, 40 U. C. R. And sea valuable memorandum of Mr. Lash the late Deputy Minister of Justice, post. 32 GOVERNMENT IN CANADA. There ia nothing in the Quebec Act further than repeal- ing the proclamation of October, 1763, as to the provisional government and all the powers and authorities given to the governors. In the constitutional Act, 1791, there is for the first time a Governor or Lieutenant-Governor given to the provinces of Upper and Lower Canada, into which the former pro- vince of Quebec was divided. The powers of the Governor or Lieutenant-Governor under this Act were as follows : (1) Bills passed by the Legislative Council and Assembly of the Provinces, were, before becoming law, to be assented to by His Majesty, or, in his name, by the Governor or Lieutenant-Governor of the provinces. (2) It was lawful for His Majesty, bj' instrument under the sign manual, to authorize and direct the Governor or Lieutenant-Governor to summon the members of the legis- lative council — seven in Upper Canada and fifteen in Lower Canada — and also such other persons to the council as he may think fit. (3) It was lawful for him to summon and call together the legislative assembly. (4) It was lawful for him to divide the provinces into districts, to appoint returning officers and the time and place of holding elections. As to assenting ' ^ bills, he declared such assent accord- ing to his discre<^ , but only subject to the Act. He could withhold his asL-nt, or reserve it for His Majesty's con- sideration. A feature of this Act is that the Royal instructions to three of the former Governors — Guy Carlton, Sir Frederick Haldimand and Lord Dorchest^^r — in reference to tithes and the support of clergy were incorporated into the Act. THE CONSTITUTION OP CANADA. 88 The Union Act 3 & 4 Victoria cap. 36 (1840), an Act of the Parliament of Great Britain and Ireland, has two sections bearing upon this subject. Sec. 40, as to the authority of the Governor is as follows : "Nothing herein contained shall be construed to limit or restrain the exercise of Her Majesty's prerogative in author- izing, and not withstanding this Act, and any other Act or Acts passed in the parliament of Great Britain, or in the parliament of the United Kingdom of Great Britain and Ireland, or of the legislature of the province of Quebec, or of the provinces of Upper or Lower Canada respectively, it shall be lawful for Her Majesty to authorize the Lieutenant- Governor of the province of Canada to exercise and execute, within such parts of the said province as Her Majesty shall think fit, notwithstanding the presence of the Governor within the province, such of the powers, functions, and authority, as well judicial as other which before and at the time of the passing of -this Act were and are vested in the Governor, Lieutenant-Governor or Person administering the government of the provinces of Upper Canada and Lower Canada respectively, or of either of them, and which from and after the said re-union of the said two provinces shall become vested in the Governor of the province of Canada ; and to authorize the Governor of the province of Canada to assign, depute, substitute, and appoint any per- son or persons, jointly or severally, to be his deputy or deputies within any pr.vt or parts of the province of Canada, and in that capacity to exercise, perform and execute during the pleasure of the said Governor such of the powers, func- tions and authorities, as well judicial as other, as before and at the time of the passing of this Act were and are vested in the Governor, Lieutenant-Governor or person ad- ministering the government of the provinces of Upper and Lower Canada respectively, and which from and after the union of the said provinces shall become vested in the Governor of the province of Canada, as the Governor of the province of Canada shall deem to be necessary or expedient; provided always, that by the appointment of a deputy or deputies as aforesaid, the power and authority of the Gove- nor of the province of Canada shall not be abridged, altered, o's.o.c. 4 84 GOVERNMENT IN CANADA. or in any way aflfected, otherwise than as Her Majesty shall think proper to direct." Sec. 59 of the same Act reads : " All powers and authorities expressed in this Act, to be given to the Governor of the province of Canada, shall be exercised by such Governor in conformity with and subject to such orders, instructions and directions, as Y Majesty shall from time to time see fit to make or issue. The imperial enactment, 17 and 18 Vic, cap. 118 (1854), which altered the Union Act, has no important reference to the powers of Governor. It defines the word " Governor " as comprehending the Governor, and in his absence, the Lieutenant-Governor, or person authorized to execute the office, or the functions of the Governor of Canada. Of the numerous references made to the Governor of the late province of Canada in the statutes from the union till confederation, no detailed statement need be made here. They refer to the necessary duties of the chief executive officer of the province, entrusted with carrying on the government under the constitution. In one place we find him made a corporation sole — empowered to issue proclamations, com- missions, &c. In 1845 an Act was passed relating to com- missions, in the first section of which it was enacted that on the demise of the Crown no new commissions need issue, but a proclamation continuing all public officers in their place should be sufficient. Section 2 is as follows : — "No- thing in the next preceding section shall prejudice, or in any way affect the rights or prerogative of the Crown, with respect to any office or appointment, derived or held by authority from it, nor prejudice, or affect the rights, or prerogatives thereof in any other respect whatsoever." Power is expressly reserved to Her Majesty in an Act passed in the same year to prorogue or dissolve the provincial parliament of Canada on the demise of the Crown. ■^ u THE CONSTITUTION OF CANADA. 85 The foregoing will give some idea of the statute law, on the powers of a Governor-General ; and it is to this, rather than to anything else, that recourse must be had in order to discover what are his powers, authorities and functions. Such prerogative rights of the Crown in England as are called personal rights of the sovereign, are conveyed to Governors of Colonies only by express delegation. The royal commission and royal instructions generally con- tained the extent of these,' and they are now virtually reduced to nothing. The Governor of a British colony is in general invested with royal authority, and is the representative and deputy of the British sovereign. The sovereign alone exercises the prerogatives of the Crown, and these royal rights and powers cannot be vested in two persons at the same time. They may and are, however, delegated to colonial Gover- nors either by the charter governments of the colony or by the royal commission and instructions, but onlv by express terms. The fundamental rights and principles upon which the royal authority rests, and which are necessary to main- tain it, extend to the colonies. The Queen is sovereign of Great Britain and of the colonies as well. She has per- petuity, and can do no wrong constitutionally within the British Dominions. The local prerogatives in England, unless by express grant, do not extend to the colonies ; but it seems on good authority that the minor prerogatives and interests of the Crown may be taken up and dealt with by the colonial legislatures. Until that happens the pre- rogative in England prevails. (/") This occurred in Ontario where a Lieutenant Governor was, unless ard until authorized by his legislature, held in- capable of creating Queen's Counsel — the prerogative of (/) Chitty on Prerogatives of the Crown. 36 GOVERNMENT IN CANADA. fountain of honor not being within his power under the British North America Act. (g) This prerogative is, however, vested in the Governor General, he being the Queen's representative in Canada, and he is competent to appoint Queen's Counsel The law on the question of pre- rogative is laid down in Cbalmer's Opinions of Eminent Lawyers : "The prerogative in the colonies, unless where it is alridged by grants, etc., made to the inhabitants, is that power over the subjects considered either separately or collectively, which by the common law of England ab- stracted from Acts of parliament, and grants of liberties, &c., from the Crown to the subject, the King could right- fully exercise in England." The Common Law of England on the question of prerogative is, therefore, the common law of the colonies on that subject — unless where the charter or royal com- mission interposes to extend or restrict it — and this law is set out in 17 Edward IL, cap.l, a statute simply declaratory of the common law. The Governor-General is the repre- sentative of the Qaeeu, and the Queen is part of our constitution. Whatever rights are necessary or exerciseable in a colony must vest in him as royal representative, and it is not so obviously material that they are statutory rather than prerogative rights. The royal commission and royal instructions are now reduced to the most general terms, and contain no express delegation of any prerogative rights. In 1875 a corres- pondence began between Earl Carnarvon and Mr. Blake, {g\ The judges of the supreme court appear to differ on this point with the law officers of the Crown in England. The latter are of opinion that any provincial legislature might authorize by statute the Lieutenant- Governor to piake such appointments. An arrangement seems to have been entered into in this matter, between the federal and provincial authorities. See sess. papers, Canada, 1873, No. 60. Lenoir v. Ritchie, 5 8. C. R. 575. THFi CONSTITUTION OF CANADA. 37 minister of justice, upon the commission and instructions to governors. The word colony was objected to and removed, and 'ordinances' was deemed unsuitable to a government carried on by " law. " The prerogative of pardon was for a long time in dispute but finally was left as all other matters to the Governor acting on the advice of his ministers. This correspondence is very interesting and may be seen in the sessional papers of 1876, and on a return made in 1879. Not only Canada but all the British Colonies owe a debt of gratitude to the distinguishsd minis- ter of justice who successfully pleaded their cause before the Colonial Secretary on this occasion. See also the correspondence on the question of disallowance of legisla- tion, except on the advice of ministers. Sess. papers 1877, No. 89. When the Governor-General has dismissed one set of ministers, and is about to choose another, then, and then only, does he appear to stand alone under our constitution. Even in this case, the new ministry is responsible — the Crown is never responsible. The Crown is not supposed to have ministers unless it accepts their advice. Its indepen- dent judgment seems to be called into requisition when the question is, to what party shall the reins of power be entrusted. Once having made a selection, its acts are the acts of the new ministry — it is no longer on the Governor- General's advice, but on theirs, that the country is gov- erned . (/i) So far as legislative powers are concerned, the Governor- General possesses only a negative voice. The Queen herself (h) Undoubtedly that theory is that the minister chosen by the King is himself responsible for every circumstance or act which led to his ap- pointment. This principle was established in the fullest manner, in 1834, when Sir Robert Peel admitted his entire responsibility for the dismissal of Lord Melbourne, by King William IV., though it was notori- ous that he was in Italy at the time and had not been consulted on the matter. — Yonge's Cotutitutional History, Chap. I. 88 GOVERNMENT IN CANADA. cannot be said but by fiction to possess any such powers, as the first estate in parHament would seem to imply. A measure becomes law in England, it is true, with her assent, but she would not now refuse her assent on a measure passed in both houses. The two houses of par- liament could send up a bill deposing her, or altering the succession, and she would be obliged to sign it ; and if one sovereign refused his or her assent, another could be got to grant it. As a late vigorous, but rather rough and plain- spoken, writer puts it : " She must sign her own death- warrant, if the two houses unanimously send it up to her. " (i) The Governor-General has in the reservation of bills a certain power, but beyond this and his instructions, and an undoubted right to refuse advice tendered by ministers, the principle of the British constitution leaves in him as the Queen's representative no positive legislative powers what- ever. Mr. Todd considers that a Governor must be regarded as a representative of the crown, and as the embodiment of the monarchical element in a colony. He also regards him as the source of all executive authority in a colony. But it is manifest that the Governor is not the source but the representative of executive authority in Canada. It may be otherwise in crown colonies, but certainly not in this Dominion. The duties of a Governor may be summed up in three heads : he must always act through advisers approved of by parliament ; he must refrain from personal interference with the ministers in their direction of local affairs except to uphold the law or protect the people ; and he must con- sent to all acts of government except in extreme cases. (t) Bagehot, on the English constitution. I THE CONSTITUTION OF CANADA. 89 The Duke of Newcastle as colonial secretary in 1862, wrote to the governor of Queensland in this way : " The general principle by which the governor of a colony pos- sessing responsible government is to be guided is this : that when imperial interests are concerned he is to consider himself the guardian of these interests ; but in matters of purely local politics, except in extreme cases, to follow the advice of a ministry which appears to possess the confidence of the legislature. But extreme cases are those which can- not be reduced to any recognized principle arising in cir- cumstances which it is impossible or unwise to anticipate, and of which the full force can, in general be estimated only by persons in immediate contact with them." (j) ( j) See Todd, Parliamentary Government in the Colonies, pp. 432, 440. 40 OOVERNMENT IK CANADA. CHAPTER IV. THE PARLIAMENT OF CANADA — THE SENATE. Composition of the senate — Limited to 78 — The three divisions — Qiudifications of a senator — How the seat becomes vacant — Title and precedence — Number in the cabinet — Speaker — Quorum — Privileges — The House of Lords — Additional senators — Rule in such a case — Reason for a second chamber — Mr. Smith's view — Mr. Todd's. The senate or upper house is the second element in the parliament of Canada, and was composed of 72 members when first summoned at Confederation — 24 from Ontario, 24 from Quebec, and 24 from the Maritime Provinces of Nova Scotia and New Brunswick. This number from the Maritime Provinces included their share in the senate whenever Prince Edward Island should be thereafter ad- mitted. This happened in 1873. In relation to the senate, Canada was deemed to consist of three divisions equally represented by senators selected from these sections. It is only in Quebec that the senators represent particular localities. Since confederation, in 1871, British Columbia has been admitted, and sends three members. Manitoba, admitted in 1870, sent two members until its population, according to a decennial census, attained 50,000 inhabitants, and it now sends three; and when the population reaches 75,000 it will be entitled to four representatives in the senate. The Territories are not yet represented. When Newfound- land is admitted it will be entitled to send four senators '^ j^i- .•v^ \^^ Ctu, ^«^u*- '^^^^ W -tt'oW''''^ 'J rsp AL<-,-^ / / THE PARUAMENT OF CA1 ! i ;i llM:li 04 GOVERNMENT IN CANADA. the cabinet is to be composed. It is their loss or gain, and is their choice by right. The crown approves with, cut interfering, (e) When a ministry resigns, the crown stands alone with no adviser known to the constitution. Its first step taken towards the formation of a new ministry is one taken on advice. A member accepting the position of leader of a new government is by the theory of the constitution advis- ing the Governor-General to that step. The new leader advises by accepting. ' . Probably the only instance in which a Governor must act on his own independent advice is when he conceives for the moment that the policy of his present advisers is not such as the country would uphold if the elective branch were dissolved and the country left to decide the question. This new ministry would, however, have to shoulder the responsibility of this extraordinary course. This, however, may not happen, with a series of Gov- ernors, in the space of a century. His ministry for the time being, represent the people ; and it is more reason- able that he should take their advice than that they take his, and the responsibility of it, at the same time. They cannot avoid the responsibility ; and they would be ridicu- lous and inconsistent in saying the advice was not theirs, but was the Governor's. He is not responsible to the people, but his ministry is ; and it is generally better for the people to have a Governor who will follow his advisers, than to have one looking for advisers. In the ordinary course of events, there could be no hesitancy in preferring the advice of a responsible ministry to that of an irrespon- sible Governor. (c) See Chap. 111. ditte on the uncloubted power of the Governor-Gen- eral to dismiss one set of cabinet ministers and select another. THE QUEEN S PRIVY COUNCIL FOR CANADA. 65 The people decide at the polls who is to rule them for a term of years at a time. Their choice may have been un- fortunate, but there appears no way of recalling it, unless the Governor fancies he can safely dissolve the house on the strength of what he believes the public sentiment to be. This may sometimes be necessary and expedient ; but it is a dangerous experiment, and appears to be contrary to the spirit of the British constitution in modern times. The crown is satisfied at the choice the people have made in the last election — it does not speculate, as to what choice they may make in the next election. The fact is, that some set of ministers must take the responsibility of every official act of the Governor-General, either the outgoing or incoming ministers, and this applies to a change of government as well as to all other acts. The moment any one accepts the leadership, he tenders advice as to the choice. The privy council is an institution peculiar to the Eng- lish form of government. There is nothing at all similar to it in the United States. The constitution of Canada has provided for its existence in the government of this country by an express section (11.), and the executive is aided and advised by it. It is probable that the 17th section which creates a parliament for Canada, would of itself have been sufficient to bring with it a privy or cabinet council, as the mode of government peculiar to the imperial parliament. It is the feature of all others that suggests the prin- ciples of the British constitution. Following the declara- tion as to executive power in the early part of the Act, it precedes the provisions as to a parliament. Those who drafted the Act of Union were determined that the federal side of the constitution was not to absorb the principles of a monarchy and the characteristics of parliamentary gov- ernment. Government under the federal system in the o's.G.c. ft m i WM 1 i 1 ! 66 OOVERNMENT IN CANADA. ■I I 'I i! American union is not conducted by a committee of both houses, such as is the Queen's privy council ; the executive power is vested in the President of the United States, and he really holds and exercises it. He is not appointed to office as is the Governor of Canada, he does not hold it by virtue of hereditary right as does the Queen of England, lie is elected by the people for a term of years ; he has large powers of veto, he has no constitutional advisers who pre- vent him from going wrong ; he is entrusted with large powers, and he has to bear the responsibility of using them. On all these points the government of Canada is modeled on other principles and the constitution has put at rest any controversy regarding them. The machinery and procedure of government in Canada is indisputably British ; and the existence of a privy council is one of the best evidences of that fact. ill: GOVERNMENT IN CANADA. 67 CHAPTER VII. THE PRIVY COUNCIL. — DEPARTMENTAL ADMINISTRATION AT OTTAWA. Ministers toith portfolios — Salaries — Power of investigation — Department of justice, powers, duties, officers — Finance revenue, currency, banks — Agriculture, immigration, manufactures, patent office, copyright, statistics — Secre- tary of State, writs, commissiotis, proclamations, N. W. mounted jiolice — Marine and fisheries, pilots, light houses, shipwrecks — Militia and defence, classes of militia, districts, exemptions, pensions. Attention will now be d irected to the individual duties of ministers of the cabinet in the departmental work of government at Ottawa. The task of administering the public affairs of Canada is divided into fifteen depart- ments, each presided over by a minister of the crown ; and each minister, by command of the Governor-General, makes an annual report to parliament of the affairs confided to his management. These reports and the other information issued by the government form the voluminous Blue Book literature — official information that is eagerly enquired for if not ready, and is very generally disregarded after it is issued. The substance of the inisters' reports is the work of the year in their departments and the manner in which they and their deputies and assistants have carried it out. Parliament and the people see how their work is being done — how the country is being governed, and if this is not to their satisfaction the task ma,y be assigned to another set of ministers. ^■■m 68 OOVERNMENT IN CANADA. i I The foUowinf; are the departments in the Dominion Government : 1. The department of justice and attorney-general. 2. The department of finance and receiver-general. 3. The department of agriculture. 4. The department of the secretary of state for Canada. 5. The department of militia and defence. 6. The department of customs. > 7. The department of inland revenue. 8. The department of the interior. r-.} 9. The department of public works. n 10. The department of railways and canals. -S 11. The post office department. 12. The department of marine and fisheries. \j^ The department of public printing and stationery, (a) *14. The department of Indian affairs. f 15. The department of trade and commerce. ' \ .^ ^ The president of the council sometimes has no depart- ment in the public service ; he presides over the meetings of the privy council. Each minister is paid $7,000 per annum as compensa- tion for his labor. The ministers in the different depart- ments at Ottawa are assisted by deputies and assistants who form the civil service of Canada. Any minister presiding over any department may appoint one or more commissioners to investigate and report upon the state and management of the business or any part of it in his department, or the official conduct of any person in his service. Very full powers are given to these com- missioners who may summon any person before them to give evidence on oath or take evidence by commission for the purposes of the investigation. (a) This department is presided over by the secretary of state, and the Indian afifairs by the minister of the interior. -, --^ -^ » v-^^K DEPAHTMENTAL ADMINISTRATION AT OTTAWA. 69 1. DEPARTMENT OF JUSTICE. This department of the civil service is presided over by the minister of justice for Canada, who is appointed by the Governor-General, by commission under the great seal, and who holds office during pleasure — that is, so long as the government, of which he is a member, retains office. The minister of justice is by virtue of his office attorney- general of Canada, and in this regard he is entrusted with til e same powers and charged with the same duties, which belong to the office of attorney-general for England, by law, or usage, so far as the same powers and duties are appli- cable to Canada; and also with such powers and duties as belonged to that office, prior to 18B7, in the provinces, in order that the provisions of the Confederation Act may be carried out by the government of the Dominion. He is the official legal adviser of the Governor-General, and the legal member of the privy council. He must see that the administration of public affairs is in accordance with law. He has the superintendence of all matters con- nected with the administration of justice in Canada, that do not fall within the jurisdiction of the provinces. He must advise upon the legislative Acts and proceedings of the provinces, and must advise the crown generally upon all matters of law referred to him. He advises the heads of the other departments upon all matters of law connected with their departments. He settles and approves of all instruments issued under the great seal of Canada, has the conduct and regulation of all litigation for or against the crown, or any public department., in matters within the authority and jurisdiction of the Dominion ; and he may have to advise on other matters referred to him by the Governor in council. He has also the superintendence of penitentiaries and the prison system of the Dominion, and '4' P :■ ',> r. ^l r !l ! i- 70 GOVERNMENT IN CANADA. returns are made to him every year from penitentiaries, gaols, lunatic asylums and reformatories The Governor appoints a deputy oi the minister of jus- tice, who is charged with the performance of these depart- mental duties, under the minister. He has the control and management of the officers, clerks and servants of the department, who are appointed hy the Governor, and he may have other powers and duties assigned him hy the Governor in council. He is now assisted by the solicitor- general of Canada. The minister of justice is a member of the treasury board. The attorney-general of the province, and not the attor- ney-general of the Dominion, is the proper party to file an information when the complaint is not of an injury to property vested in the crown as representing the govern- ment of the Dominion, but of a violation of the rights of the public of the province, even though such rights are created by an Act of the parliament of the Dominion, {h) 2. THE DEPARTMENT OF FINANCE. This department of the civil service is presided over by the minister of finance and receiver-general, appointed and holding office like the minister of justice and the other ministers of the crown. This department has the supervision, control and direc- tion of all matters relating to the financial affairs, public accounts, revenue and expenditure, of the Dominion, except- ing such of these matters as may be assigned to other departments, as customs, etc. The Governor-General appoints a deputy minister of finance and receiver-general, who is deputy head of the department and secretary of the treasury board. For- (b) AtVy-Gen. v. The Niagara Falls International Bridge Co'y, 20 Gr. 34. DEPARTMENTAL ADMINIBTIIATION AT OTTAWA. 71 raerly the auditor-general and an officer called the deputy inspector-general were officers of this department. A board called the treasury board, consisting of the minister of finance and receiver-general, the minister of justice, the minister of customs, the minister of inland revenue, the secretary of state of Canada, and one other minister, is a committee of the privy council on all matters mentioned as belonging to this department — finance, revenue and ex- penditure or public accounts; and the board may call the attention of the council to any of these matters, or the council ma; refer any of them to the board. The board has power to require from any public department, board or officer, or other person or party bound by law to furnish the ^ same to the government, any account, return, statement, document, or information which the board may think necessary for the due performance of its duties. By the word revenue in this department is meant revenue of the Dominion of Canada and all branches thereof, and all public moneys, whether arising from duties of customs or other duties, or from the post office, or from tolls on canals, rail- ways or other public works, or from penalties or forfeitures, or rents or dues, or other source whatever, and whether the money belongs to or is collected by the Dominion in trust for any province or for Great Britain. The Governor in council determines what officers are necessary in the col- lection of the revenue, divides up Canada into posts and districts for revenue purposes, and makes all necessary regulations for payment of and accounting for the revenue. No money is paid out of the public chest unless by cheque on some bank upon the warrant of the Governor in council, and signed by the minister of finance and receiver-general and countersigned by his deputy. t: { For the more complete examination of the public accounts, and for the reporting thereon, the Governor-General may, 4 ■ it IMAGE EVALUATION TEST TARGET (MT-3) ^/ ^ ^ c^. #/. ^ V^^^ V ^ 1.0 ;r '« I I.I 1.25 25 IK m Uk 22 ^!!2.0 IJ4 Photographic Sciences Corporation <^^ ^^^' 73 WeST MAIN STREET WEBSTER, NY. MSSO (7161 873-4503 '^ ^ <> J I i 4b^ ^ O^ 1 p : i : n OOVERHMENT IN CANADA. under the great seal, appoint an auditor-general of Canada, who holds office till removed by the Governor-General on the addrefls of tlie seimto and com Dions. He issues all cheques under the parliamentary appropriation, and unless in theue cases no cheque of the iinance minister shall issue unless u|)on his certiiicaie. Ho certilies and reports as to the public accounts presented to parliament by the minister. This departwt'nt Iirk to deal with banks isHuing dominion notes in place of tlicir own, and also with the issue of dominion notes, and with the currency generally. All public moneys, from whatever source of revenue derived, shall be paid to the credit of the account of the minister of iinance and receiver-general through such officers, banks or persons, and in such manner as Ihe said minister from time to time, directs and appoints. The denominations of money in the currency of Canada are dollars, cents and mills, — the cent being one hundredth part of a dollar, and the mill one tenth part of a cent. The currency of Canada is such, that the British sovereign of the weigh* uiul fineness now prescribed by the laws of the I'nited Kingdom, is equal to and passes current for four dollars eighty-six cents and two-thirds of a cent of the currency of Canada, and the half sovereign of propor- tionate weight and like fineness for one-half the said sum. All public accounts throughout Canada must be kept in such currency ; and in any statement as to money or L.oney value, in any indictment or legal proceeding, the same shall be stated in such currency : and in all private accounts and agreements rendered or entered into on or titbieqtietit to the first day of July, one thousand eiyht hun- dred and icrentycne, all sums mentioned shall be under- DEPARTMENTAL ADMINISTRATION AT OTTAWA. 78 stood to be in such currenc}', unlesei some other is clearly expressed, or must, from the circumstances of the case, have been intended by the parties The deputy of the minister shall keep the accounts with the financial agents of the Dominion in England and with the banks paying or receiving public money, and accounts of money paid for interest on Canadian stock, debentures or other Canadian securities. He shall countersign all debentures and keep a debenture book, an interest book respecting them, and an appropriation book, and shall keep the public accounts of the Dominion, and have control and direction of its financial affairs, public accounts, revenue and expenditure under the minister. He prepares and submits to the ministers the public accounts to be laid before parliament, (c) The Governor in council may authorize the issue of Dominion notes to a specified amount, and such Dominion notes may be of such denominational values and in such form, and signed by such persons and in such manner, by lithograph, printing or otherwise as he from time to time directs, and such notes Hlmll be redeemable in specie on presentation at branch otHces established in certain cities in Canada. The expression *' specie " means coin current by law in Ciiiiadti, at the rates and subject to the provisions of the law in that behalf, or bullion of equal value according to its weight and fineness. The amount of Dominion notes issued and outstanding at any time may, by order in council, founded on u report ((■) The manner of (leali.it; with thiH nioHt ini|)urtMnt imrtuf the public afTuira in the finance department nt t coniphcated to ({ive even u HCH. ral idea of its workintjH within a Minall Hpace. The reader niiiHt be referreil to Public AccountH Audit Act. 1K7H, and itH amoiidmentK to hco the former workintJH of thin de{iartnient and the dutien of the board of audit, now superaedod by later provinionH. See aluu the Act of 1H87. 74 GOVERNMENT IN CANADA. _ ^^^^Aj^x r^ of the treasury board, be increased to, but sball not exceed twenty million dollars, by amounts not exceeding one million dollars at one time, and not exceeding four million dollars in any one year : 8. THE DErAHTMENT OF AORIClLTlIiE. {(I) This department is presided over by the minister of agriculture, who, with a deputy minister, has charge of the management and direction of the department. The duties and powers of the minister of agi'iculture, extend to the execution of the laws enacted by the parlia- mentVof Canada, and of the orders of the Governor in coimbil relating to the following subjects, which are con- traUed and directed by the department. 1. Agriculture. 2. Immigi'ation and emigration. 8. Public health and quarantine. 4. The marine and immigrant hospital at Quebec. 5. Arts and manufactures. 6. The census, statistics and the registration of statis- tics. 7. Patents of invention. 8. Copyright. 9. Industrial designs and trade marks. 10. Experimental farm stations. Any of these powers and duties may be assigned to other members of the privy council by the Governor in council, and the same power may also assign additional duties to the minister of agriculture than those above enumerated. The minister is bound to make his annual report to both houses of parliament within twenty-one days after the commencement of the session. (d) See Act of 1887 D. chap. 12. DEPARTMENTAL ADMINIBTRATION AT OTTA>\'A. 75 Each of the provinces has power to legislate in relation to agriculture within its own limits, ond also in relation to immigration into such province. The Dominion has power to legislate, in relation to these same subjects, in all or any of the provinces ; ivnd the provincial law takes etfect so long and so far only as it is not repugnant to any Act of the parliament of Canada. These two subjects of agriculture and immigration into the provinces are the only subjects in which Canada and the provinces have con- current jurisdiction. Canada maintains immigration offices in Great Britain and in Canada. Arrangements are entered into by which the dominion and provincial govern- ments assis^> each other in this particular and conferences of the delegates of both governments are convened from time to time in the office of this department. Minute statutory regulations are made in regard to immigrants, quarantine, &c. ; and the Governor in council is empowered to make regulations to carry out the quarantine Act or pro- hibit the landing of vicious immigrants, etc. (e) The minister of agriculture keeps a register of copyrights, in which proprietors of literary, scientific and artistic works or compositions may register the same under the copyright Act of 1875. The minister has power to make rules and regulations and prescribe forms for this purpose. Tbe term of copyright is for twenty-eight years, and may, under certain circumstances, be renewed for fourteen years after the expiration of that time. Two copies of the work are deposited in this office, one of which is forwarded to the library of parliament. Notice that a copyright has been ob- tained must appear in the work itself in a prescribed form. The rules and regulations are laid down by an order of the privy council dated 7th December, 1875. (,/') The regulations (<•) See duties of the lliuh CommisBioner for Canada, hij'ra. (/) See SmilfH v Itedford, 1 App. Ont. 430. 76 GOVERNMENT IN CANADA. n I' \! i M m " 1.1 4 lit! as to trade-marks and designs were laid down by statute in 1879. Patents of invention and copyright may now be transferred to the secretary of state. The minister of agriculture receives returns of crimi- nal statistics every year up to the 80th September from the proper officers of the courts administering criminal justice, and from wardens and sheriffs and justices of the peace ; and records of the same are kept in his department. He receives also such returns as to the exercise of the pre- rogative of mercy as are furnislied by the secretary of state. These statistics and returns are abstracted and printed yearly. The census shall be taken in 1891, and at the beginning of every tenth year thereafter. The details of the census shall be directed by the Governor in council ; and this de partment shall prepare all forms and instructions necessar; for that purpose, and examine into the returns and records, and lay before parliament such abstracts and tabular re- turns shewing the results of the census as accurately and fully as possible. The minister of agriculture is, under the approval of the Governor in council, from time to time to collect, abstract, tabulate and publish the vital, agricultural, commercial, criminal and other statistics of the country ; and he has all the necessary powers to provide himcelf with all the proper officers aiid assistants for that purpose. Regulations as to contagious diseases in cattle issue from this department by order of the Governor in council. See Act of 1887, D. cap. 12. 4. THE DEPARTMENT OF THE SECRETARY OF STATE OF CANADA. This department is presided over by the secretary of state of Canada and managed under his direction. The DBPARTUENTAL ADMtNIBTRATION AT OTTAWA. 77 Governor in council may also appoint an "under secretary of state " and other necessary officers. The duty of this minister is to have charge of the state correspondence, to keep all state records and papers not specially transferred to other departments, and to perform such other duties as may he assigned him. He is the registrar-general of Canada, and, as such, registcrB all in- struments of summons, proclamations, commisdionH, letters patent, writ and other instruments issued under the gnat seal and all honds, warrants of extradition, warrants for removal of prisoners, leases, releases, deeds of sale, and all other inetruments requiring registration. The deputy registrar-general of Canada, may sign and certify the registration of all instruments and documents required to he registered, and may issue certified or authenticated copies of these or any records in the office which may be bo required. The department of the interior now takes charge of In- dian affairs, of crown lands being the property of Canada, of ordnance and admiralty lands, and other public lands formerly entrusted to this department. The charge of the North-West mounted police was also transferred to that department, but is now in the Indian department. The secretary of state reports annually to parliament within ten days after its commencement. The secretary of state has charge of the state correspon- dence with the provinces, as there is now no secretary of state for the provinces. The Act of 1887, cap. 12. D. must be read in connection with this department, ig) {g) See departmeat of public printing and stationery. i ' ■■\ < li^ ^ ' '!| 1 ¥• 1 % 78 OOVERNMBNT IN CANADA. 6. THE DEPARTMENT OF MARINE AND FISHERIES. The minister of marine and fisheries has the manage- ment and direction of this public department under his control. His deputy directs and oversees the other officers and servants of the department, and has general control of its business in the absence of the minister. The following are the matters within the control of this department, under any existing laws in reference thereto: (h) 1. ScQ, coast and inland Bsheries, and the management, regulation and protection thereof, and anything relating thereto ; also the administration of any laws relating to pilots and pilotage, and decayed pilots' funds ; 2. Beacons, buoys, lights, light-houses, and their main- Jenance ; 3. Harbors, ports, piers and wharves, steamers and ves- sels beloni^ing to the Government of Canada, except gun- boats or other vessels of war ; 4. Harbor commissioners and harbor masters ; 5. Classification of vessels, examination of and granting of certificates to masters aud mates and others in the merchant service ; 6. Shipping masters and shipping officers ; 7. Inspection of steamboats and boards of steamboat inspection ; 8. Enquiries into causes of shipwrecks ; 9. Establishment, regulation and maintenance of marine and seamen hospitals and care of distressed seamen, and (/i) See Quten v. Robertton, 6, S. C. R. 52. DEPARTMENTAL ADMINIHTRATION AT OTTAWA. 79 (^t'oerally such matters as refer to the marine and navi- (;:ition of Canada. Orders in council regulate the close seasons for fish in the different provinces, and are made on the recommend* ation of the minister of this department. The Governor in council may at any time, by proclama- tion, transfer from this department to the department of public works the construction and repair of light houses. 1. All harbors, wharvcj, piers and breakwaters con- structed or completed at the expense of Canada, or other- wise the property of Canada, except only such as are on or connected with canals shall be under the control and management of the minister of marine and fisheries re- specting the use» maintenance and ordinary repairs thereof, the making and enforcing of regulations concerning such use, maintenance and ordinary repairs, and the collection of tolls and dues for such tise ; 2. The construction and repairs, and the works connected therewith, other than maintenance and ordinary repairs, shall be under the control and direction of the minister of public works. 6. DEPAUTMENT OF MILITIA AND DEFENCE. The minister of militia and defence is charged with and responsible for the administration of militia affairs, includ- ing p11 matters involving expenditure, and of the fortifica- tions, gunboats, ordnance, ammunition, arms, armories, stores, munitions, and habiliments of, war belonging to Canada. He has also the initative in all militia affairs involving the expenditure of money. The Governor in council may appoint a deputy to this minister, and such 4 if T. • I III 80 OOVERNMENT IN CANADA. r i iff 1 III other officers as may be necessary, and prescribe their duties, (t) The Cotnmand-in-chief of the land and naval militia, and of all navul and military forces of and in Canada, is vested in the Queen, and shall he exercised and administered hy Her Majesty personally, or by the (lovernor-Cleneral as her representative. The militia consists of all the male inhabitants over eij^hteen years of age and under sixty, not exempted or dis- qualified hy law, and being British subjects by birth or naturalization. There are four classes of militia as follows : 1. 18 and over 18, and under 30 years, who are un- married or widowers without children. These will be called upon to serve first. 2. Those of 30 and upwards, but under 45, unmarried, or widowers, without children. These will be called after the first class. 3. Those of 18 and upwards, but under 45, who are married, or widowers with children. These are next liable to be called. 4. Those of 45 and upwards, but under 60. These are not called until the others are serving. Her Majesty may, however, in the case of a general ris- ing, or rebellion, require all the male inhabitants of the Dominion, capable of bearing arms, to serve in the militia. The militia shall be divided into active and reserve militia — land force; and active and reserve militia — marine force : (i) See Holmes v. Temple, Queb. L. R. 351 DEPARTMENTAL ADMINISTRATION AT OTTAWA. 81 The active militia — land force — shall be composed of :— (a) Corps raised by voluntary enlistment; (b) Corps raised by ballot ; (c) Corps composed of men raised by voluntary enlist* ment and men balloted to serve ; The active militia — marine force — to be raised similarly, shall be composed of seamen, sailors and persons whose usual occupation is upon any steam or sailing craft, navigating the waters of Canada : The reserve militia— land and marine— shall consist of the whole of the men who are not serving in the active militia for the time being. 46 V., c. 11, s. (i. Canada is divided into twelve military districts : Ontario 4 ; Quebec 3 ; Nova Scotia, New Brunswick, Manitoba, British Columbia, Prince Edward Island, one each. Schools of instruction arc established in garrison towns in Canada ; and the staff of instructors, under the superin- tendence of a military othcer called a commandant, is appointed by the (iovernor in council. The regulations for admission, etc., are laid down by order in council. The department of militia and defence pays those on the pension list, and enquires who are entitled to pensions. EXEMi'TIONS. The following persons only, between the ages of eighteen and sixty years, shall be exempt from enrolment and from actual services at any time : — The judges of all the courts of justice in the Dominion of Canada ; o's.o.c. 7 I 1! 82 OOVRRNMRNT IN CANADA. The clergy and nfinistcrH of nil reliKiouH denomiDations ; The profcBHorH in every college and university and all teachcrH in rulifjiouH orderH ; OfficerH and perHons regularly employed in the collectioii or nianiigeiuentof the revenue, or in accounting for the same ; The warden and all otKcerH and Hervants employed permanently in the penitentiaries, and the otlicers, keepers and guards of nil public lunatic asylums ; Persons disabled hy bodily intirmity ; The only son of a widow, being her only support ; 2. The following, though enrolled, shall be exempt from actual service at any time except in case of war, invasion or insurrection ; Half-pay and retired oflicerb of Her Majesty's army or navy; Seafaring men and sailors actually employed in their calling ; Pilots and apprentice pilots during the season of naviga- tion ; Masters of public and common schools actually engaged in teaching ; \ 8. Any person bearing a certificate from the society or ^ Quakers, Meunonites or Tunkers, or any inhabitant of ^ Canada, of any religious denomination, otherwise subject \ to military duty, who, from the doctrines of bis religion, J y.i is averse to bearing arms and rtaises personal military service, shall be exempt from such service when balloted in i^ time of peace or war, upon such conditions and under such regulations as the Governor in council may from time to time, prescribe. \ •OVERNMRNT IN CANADA. CHAPTEa VIII. THE PRIVY COUNCIL — ADMINISTRATIVE GOVERNMENT. (Continued.) The department of emtom* — Inland revenue, excise, n\ifiht» and meatures, stamps, tolls — Interior, Indent ajfairs, crown lands, ijeoloijical siirieif, X. W. mouti.d ^toUee — Post J' powers and duties, postal union, moneif c. lers, letters — Public works, officers, works — liailiutifs and canals — Public printing and stationery, Qwens printer, statutes, Canada Gazette — Indian department— Trade and commerce — The hiijh commissioner /or (Janada. 7. THE DEI'AUTMENT OF CUSTOMS, (a) The department of customs is presided over by the min- iRt( r of customs appointed under the great seal and holding office during pleasure. The Governor-General appoints a commissioner of customs and an assistant commissioner of customs. These have certain powers and perform cer- tain duties assigned them by the Governor-General or by the minister of customs. This department has control and management : 1. Of the collection of the duties of customs and of mat- ters incident thereto, and of the officers and servants em- ployed in that service. (a) See Act of 1887, chap 11 D. by which the departments of Customs and Inland Revenue are placed under the control of the Minister of Trade and Commerce, and the Minister of Finance. The Act is not yet in force. Tf 84 GOVERNMENT IN CANADA. I "I The Governor-General may appoint a board of examiners for all employees in this department, and these may classify the persons employed and grant certificates accordingly. The minister of customs reports annually to parliament on the transactions and aifairs of his department within 15 days after parliament opens. 8. THE DEPARTMENT OF INLAND REVENUE. This department is presided over by the minister of in- land revenue, He is assisted by a commissioner of inland revenue who is deputy of the minister, and by an assistant commissioner, who is the inspector of inland revenue, in performing such duties as are assigned to them by the Governor-General or by the minister in charge. This department has the control and management : — 1. Of the collection of all duties of excise ; 2. Of the collection of stamp duties and the preparation and issue of stamps and stamped paper, except postage stamps ; 8. Of internal taxes ; I 4. Of standard weights and measures ; 5. Of the administration of the laws affecting the culling and measurement of timber, masts, spars, n^als, staves and other articles of a like nature, and iLo collection of slidage and boomage dues ; 6. Of the collection of bridge and ferry tolls and rents ; 7. Of the collection of tolls on the public canals, and of matters incident thereto, and of the officers and persons employed in that service ; I liff ADMINISTRATm: GOVERNMENT. 85 Subject always to the provisions of tho Acts relating to the said subjects and matters connected therewith. The regulations as to balances and weighing machines are laid down by an order of the privy council dated 10th July, 1877. Under a previous order Canada was divided into ten districts, under the Act respecting weights and measures ; four for Ontario ; two for Quebec ; and one for each of the other provinces, except Prince Edward Island. In this office regulations are made for the inspection, verifi- cation and testing of gas, and for analyzing food, under the Acts to prevent the adulteration of food. The weights and measures Act of 1879 provides for uniformity of weights and measures, and prescribes standards therefor as deposited in this department. The Governor-Geu'ral may appoint officers and other persons to carry out all Acts relating to the department of inland revenue, or anj' orders in council, or regulations made thereunder. A board of examiners may be consti- tuted in this department, as in that of customs. The minister leports annually to parliament, within fif- teen days after the house opens. 9. THE DEPARTMENT OF THE INTERIOR. This department of the civil service is presided over by the minister of the interior. Ke has the control and management of the affairs of the Xorth-West Territories- He is the superintendent general of Indian affairs and has the control and management of their lands and property in Canada, {b) He has als ) the c(3ntrol anl mma^ijiuent of all crown lands, being the property of aie Dominion, in- cluding those known as ordnance and admiralty lands, and (l> See Church v. Fi-iiton, 28 U. C. 0. P. 384. iW3 8iB wk f( H'r' I 1 86 GOVERNMENT IN CANADA. all other public lands not specially under the control of the public works department, the department of railways pnd canals, or of that of militia and defence (and excepting also marine hospitals and light houses, and land connected therewith, and St. Paul's, Sable and Portage Islands). He is substituted for the former commissioner of crown land^ as regards ordnance and admiralty lands transfer- red to the late province of Canada and lying in Ontario and Quebec. He takes the place of the secretary of state in regard to Dominion lands, and has all the powers, attributes, functions, restrictions and duties necessary to the enforcement of the provisions of the Dominion Lands Act, R. S. C. cap. 54. There is a deputy minister in this department who has charge, under the minister, of the performance of the departmental duties, and the control and management of the orticers, agents, clerks and servants in the department. The minister of the interior has the control and manage- ment of the geological survey of Canada, and there is a branch of the department of the interior known as the geo- logical survey branch, which is under the control of the minister and takes charge of and conducts the geological survey of Canada. The objects and purposes of the survey and museum are to elucidate the geology and mineralogy of Canada and to make a full and scientific examination of the various strata, soils, ores, coals, oils and mineral waters, and of its recent fauna and //on/, so as to afford to the mining, metallurgical and other interests of the countrv, correct and full infor- niation as to its character and resources. 10. THE DEPARTMENT OF INDIAN AFFAIRS. This department has the management, charge and direc- tion of Indian affairs. It is presided over by the superin- ADMINISTRATIVE OOVKUNMENT. 87 tendent-Rt'neral of Indian affairs, and the minister of the interior is at present appointed to that office. The Governor-General in council appoints a deputy superinten- dent-general and such other offit-ers, clerks and servants as are recjuisite for the jnoper conduct and management of the department. An Indian commissioner maybe appointed for Manitoba, Keewatin, and the North-Wt-fit Territories, or for one or two of these, and an Indian superintendent for Jiritish Colum- bia who may have certain duties assigned them. The Indian Act, K. S. C. cap. 43, amends and consoli- dates the law relating to Indians. It defines who they are, what lands they hold and are entitled to, the i)rotection the law affords them, and the disabilities they labor under. The Governor in council may, however, exempt Indians from any portion of the operations of the Act. The Chancellor of Ontario has recently given an elaborate judg- tnent as to the position occupied by the Dominion and Ontario governments on Indian lands. The territorial jurisdiction of the Dominion is held to extend only to lands reserved for Indians. The same judgment contains a hriefly sketched history of the public lands of Ontario from the time of their acquisition by the crown till they became subject to provincial legislative control, (c) The law relating to the administration and man- gement of the Dominion lands is amended and consolidated by an Act passed in 1H71> ( ^z. 81 1 ; and these are under the con- trol of the minister of the interior in a branch of this department called "the Dominion lands office." This Act provides for the survey and disposal of these lands, (c) Ih'ijina v. The St. Catharinen MilUiKj and Lunibfr Coy., 10. Ont. Reports V.H), affirmed in 13 Ontario appeals, and now entered on the privy council appeals. (■*.l If ijj ! ■ '' 1 ,> M i! ' 1 N i i i 1 ' I i^: 88 GOVERNMENT IN CANADA. makes regulations as to homesteads, mining and coal fields, timber lands, and licenses thereon, and for the issue of patents to these lands. The minister of this department has charge of the North- West mounted police. 11. POST OFFICE DEPARTMENT. There is at the seat of Government, w ith the other public departments, a post office department, for the superinten- dence and management of the postal service of Canada, under the direction of a postmaster-general. He is appointed, like the other ministers, by commission under the great seal, and holds office, as they do, during pleasure. He has power to appoint postmasters having permanent salaiies in towns and cities. He may also subject to the Acts in force: (d) 1. Establish and close post offices, and post routes. 2. Appoint and suspend postmasters, and other officers and servants. 8. Make mail contracts or other business as to the; post office, regulate what is mailable matter as to size and weight, prohibit dangerous or improper or other articles being sent, establish rates, unless others are laid down by parliament therefor in Canada, and arrange for these outside Canada. 4. Prepare stamps, stamped envelopes, post cards, wrap- pers, etc., and provide for the sale of the same, establish a money order system, and make necessary regulations as to registration. (d) This is an abridgement of the eighteen sub-sections in the Acts. ADMINISTRATIVE GOVERNMENT. 89 # 5. Establish street, letter, or pillar boxes ; and generally make such regulations as he deems necessary for the due and effective ^^orking of the department. A deputy postmaster-general is appointed by the Gov- ernor in council, who has control of the department, under the minister. The rate of postage on letters, newspapers and periodical publications, and what are called book and parcel post, are laid down by statute, and the postmaster-general has no power over these. The " General Post Union, " formed under a treaty taking effect on the 1st of July, 1875, regulates the under- standing had between Great Britain, Germany, Austro- Hungary, Belgium, Denmark, Egypt, Spain, the United States of America, France, Greece, Italy, Luxembourg, Norway, the Netherlands, Portugal, lloumania, Russia, Servia, Sweden, Switzerland and Turkey. Postal arrangements and a money order system are ar- ranged between Canada and the United States. The postmaster-general has the sole and exclusive privi- lege of sending and delivering letters in Canada ; and any person who infringes upon this privilege, except as provided, is liable to a penalty of at least §20 for every letter de- livered or found in his possession. The exceptions pro- vided are letters sent by a private friend, or by a messenger sent on purpose, on private affairs of the sender, or receiver, or sent by a private vessel to a place out of Canada, or letters brought into Canada, and immediately posted ; or letters sent with goods, but without pay or return and commissions, or other papers, issuing out of a court of ustice. () Mr. Justice (now Chief Justice) Wilson, in Qiuin v. Taylor, 30 U. C. K. (c) Imperial Act, 28 and 21) Vic. cap. G3. A colonial Act is not void merely because it is inconsistent with the royal instructions to the Governor-General. O S.G.C. 8 98 GOVERNMENT IN CANADA. :i 1'^ I i' ■/- '■ There is at least one limitation to the provincial sover- eigntj', to adopt rhe language parallel to that of federal writers, (d) Another high judicial authority speaking of the provincial legislature says : " The power« of their legislatures are not conferred on them by their own provinces, but by the people of Canada, with the consent of the sovereign po ver of Great Britain ; and these provinces cannot confer a sovereignty which will extend over them, and they cannot be regarded as sovereign states. " (e) The limitation on the Dominion parliament by reason of imperial authority, is, however, mt much more than the nominal subjection of a colony to the mother country. Assuming that no laws will be passed in Canada, repug- nant to those in Great Britain, there is very little subjection in that qu«iiter beyond the fact of paramou ' authority in reserve. The Act of 28 and 29 Victoria could be repealed by the British parliament, and so could the Act of Union of the following session, but unless the people of Canada so desire it, these are only speculative possibilities. The late Chief Justice Draper was of opinion that the parliament of Canada has the right to legislate on the subjects mentioned in the 91st section of the Act to the exclusion of the Im- perial parliament. The exclusive authority mentioned in that section as belonging to Canada does not, he says, refer to the subordinate provincial authorities, whose powers were not then conferred on them, but refers to the matters on which the imperial parliament has renounced its right to legislate. In support of this he refers to the two constitutions given to Canada in the reign of Geo. III., which empower the colonial legislature to make laws for the (d) The power of disallowance of a provinciiil statute rests solely with the government of Canada. The imperial authorities have de<^lined to deal with a power given to the Governor-General of Canada. (e) Chief Justice Hagarty, in Leprohon v. Ottawa, 2 App. Ont. B THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADV. 99 "peace, w^iiare, and good government" of Canada. The present constitution sets out specifically the subject < which the parliament of Canada can deal with, and which m ly be supposed to comprise all subjects within the " peace, order, and good government" of Canada; and in regard to these the English legislature has no concern, and has deprived itself of the right of ever interfering. (/) The 9l8t section, to which the learned chief justice refers, is as follows : " It shall be lawful for the Queen, by and with the advice and consent of the senate and house of commons, t'^ make laws for the peace, order, and good government of Ciina la, in relation to all matters not coming within the cla ses of subjects by this Act, assigned exclusively to the legislature of the provinces ; and for greater certainty, biit not so as to restrict the generality of the foregoing terms of this section, it is hereby declared that (notwithstanding any- thing in this Act) the axclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say : (1). The public debt and property. (2). The regulation of trade and commerce. (3). The raising of money by any mode or system of taxation. (4). The borrowing of money on the public credit. (5). Postal service. (6). The census and statistics. (7). Militia, military and naval service, and defence. (8). The fixing of and providing for the salaries and allow- ances of civil and other officers of the government of Canada. (9). Beacons, buoys, lighthouses, and Sable Island. (f) Regina v. Tatflor, 30 U. C. R. See also Crombie v. Jack$on, per "Wilson, J. ("now C.J.) ■ J t '5': sir i. H '■^- ' A 100 GOVERNMilNT IN CANADA. ii! h w (10). Navigation and shipping. (11). Quarantine, and the establishment and maintenance of marine hospitals. (12). Sea, coast and inland fisheries. (13). Ferries between a province and any British or foreign country, or between two provinces. (14). Currency and 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). i'atents of invention and discovery. (23). Copyrights. (24). Indians and lands reserved for the Indians. (25). Naturalization and aliens. (26). Marriage and divorce. (27). The criminal law, except the constitution of courts of criminal jurisdiction, but including the procedure in criminal matters. (28). The establishment, maintenance and management cf penitentiaries. (29). Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the pro- vinces. And any matter coming within any of the classes of sub- jects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the legislatures of the pro- vinces. THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 101 The matters refened to in the last of these enumerated powers as expressly excepted in the provincial list of powers are comprised in three heads : (1). The office of Lieutenant-Governor. (2). Marine hospitals. (3). Local public works or undertakings set out in the 10th class of subjects assigned to the provinces comprising (a) inter or extra provincial or foreign lines of steam or other ships, railways canals, telegraphs and other works and undertakings ; (b) lines of steamships be- tween the provinces and any British or foreign country ; (c) provincial works for the advantage of Canada in more than one province. The 92nd section is in these words : EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES. 92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, that is to say — * (1). The amendment from time to time, notwithstanding anything in this Act, of the constitution of the province, except as regards the office of Lieutenant-Governor. (2). Direct taxation within the province in order to the rais- ing of a revenue for provincial purposes. (3). The borrowing of money on the sole credit of the pro- vinces. (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 belong- ing to the province, and of the timber and wood thereon. (6). The establishment, maintenance and management of public and reformatory prisons in and for the province. ii. % L 102 GOVERNMENT IN CANADA. i I i '' 1 ) I ' \ w (7). The establishment, maintenance and management of hospitals, asylums, charities, and eleemosynary insti- tutions in and for the province, other than marine hospitals. (8). Municipal institutions in the province. (9). Shop, saloon, tavern, auctioneer, and other licenses, in order to the raising of a revenue for provincial, local, or municipal purpose. (10). Local work and undertakings, other than : — a. Lines of steam or other ships, railways, canals, tele- graphs, and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the provinces : h. Lines of steamships between the province and any British or foreign country : c. Such works, as, though wholly situate within the pro- vinces, are before or after their execution declared by the parliament of Canada to be for the general advan- tage of Canada, or for the advantage of two or more of the provinces. (11). The incorporationof companies with provincial objects. (12). The solemnization of marriage in the province. (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 criminal juris- diction, and including procedure in civil matters in those courts. " (16). The imposition of punishment by fine, penalty, or imprisonment, for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in this section. (16). Generally all matters of a merely local or private nature in the province. ill THE DISTRIBUTION OF LEQISLATIVK POWERS IN CANADA. 103 The l)3rd section gives to the province the exclusive right of making laws in relation to education, preserving the then existing rights and privileges of any denominational schools. Whatever powers, privileges and duties had been conferred or imposed on separate schools in Uj^per Canada, were extended to dissentient schools in Quebec, and provision was made for an appeal to the Governor-General in regard to these schools in any province. The 94th section provides for the uniformity of laws in the four provinces by means of an Act of the parliament of Canada ; but as the Act does not take effect '* until it is adopted and enacted as law by the legislature " of the province, it is only a power by consent of the two legisla- tures. The 95th section is the only other one that confers a law-making power on the Dominion parliament. The par- liament of Canada and the provincial legislatures way from time to time make laws in relation to agriculture and im- migration, the provincial laws taking effect so long as they are not repugnant to Acts of parliament of the Dominion. These two matters are in reality the only ones over which there is concurrent jurisdiction. The public works are sometimes said to be under concurrent jurisdiction, but the Dominion and provincial works are distinct, and each belongs to and is managed by one authority, {(j) Although there are many other powers conferred by the B. N. A. Act and by subsequent imperial legislation, all of which will be noticed presently, the foregoing classes of subjects are the basis of legislative authority for the Canadian union and for the provinces. {(f) Earl Carnarvon places the concurrent powers over these three subjects. If 104 GOVERNMENT IN CANADA. '\\ In glancing over the classes of subjects assigned to the government of Canada it is easy to recognize them as sub- jects common to all the provinces, and which are properly left to the central government, the intention being to make laws (fenerally for the peace, order and good government of Canada. These may bt arranged as follows : 1. To provide means to carry on the work of government. Raising money by taxation (3); borrowing money on public credit (4) ; paying salaries (8). All this in the foundation of a certain amount of public debt and property (1). {h) il 2. Subjects obviously common to all. The postal service (5) ; the militia and defence (7) ; naturalization and aliens (25) ; the census and statistics (6) ; the criminal law (27) ; peniten- tiaries (28) ; patents of invention (22) ; copy- right (23) ; currency (14) ; banking and paper money (15) ; inter or extra-provincial ferries (13) ; navigation and shipping (10) ; legal tender (20) ; bankruptcy (21). 3. Subjects where uniformity is desirable. Eegulation of trade and commerce (2) ; savings banks (16) ; bills and notes (18): weights and measures (17) ; interest (19) ; care of the In- dians (24) ; quarantine (11) ; marriage and di- vorce (26) ; fisheries (12). Subjects w^here the expense should be borne in common. Lighthouses (9) ; quarantine and marine hospi- tals (11) ; the public debt (1). {Uf Ihe public property is given in the third schedule to the Act. There are also the revenues and stocks mentioned in sections 102 and 107 belonging to Canada. ii THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 105 In section 92, if we proceed on a like classification — keeping in view that the intention was generally to reserve all matters of a merely local or private nature to the provinces. 1. To provide means to carry on the work of government. Direct taxation ('2) ; borrowing money on permanent credit (3) ; paying salaries (4) ; shop, saloon and other licenses (9). 2. Subjects obviously belonging to the provinces. Local and private matters (16) ; property and civil rights (13) ; municipal institutions (8) ; public lands and the timber ana wood on them (5) ; local public works and undertakings (10) ; the adminis- tration of justice — the courts (14) ; hospitals, asylums and charities (7) ; prisons (5) ; incorpo- ration of companies with provincial objects (11) ; solemnization of marriage (12). (t) 3. Exceptional powers. Amendment of the provincial constitution (except as to Lieutenant-Governor) (1) ; enforcement of provincial powers by line, penalty or imprison- ment (15). It might have been easy to predict that some of the sub- jects in the 91st section given over to Canadian control would rolate clearly to subjects under provincial jurisdic- tion. Thus in section (1) of the former, the extent of the public property given to Canada is to be traced only by a careful survey of the schedule already referred to, and by reading it with several sections of the Act. It has been held that lands escheating to the Crown for want of heirs do not revert to Canada, but to the province wherein the lands are situate. (/) Again lands reserved to Indians by (i) Education is by special sections reserved to the provinces. (j) Attorney -Genera! v. Mercer, L.V. 8 App. P. C. 176. 1 ?■^' ''I 1 Si 100 GOVERNMENT IN CANADA. the 24th section are, ao far as the litigation has yet gone, to he considered as owned by the province but managed by the government of Canada as trustees for the Indians, (k) The regulation of trade and commerce given in the second class of tlie Olst section has been opposed by the tenth and other classes in the 92nd section. (/) The right to legis- late on licenses gave rise to two enactments, one by the Ontario government and another by the Dominion govern- ment known respectively as the Crooks Act and the McCarthy Act, in which the provincial jurisdiction was upheld, (w) The jurisdictipn of the provinces to a certain extent over rivers and streams was questioned several times but was finally upheld ; {n) as was also the right of a local legislature to attach uniform conditions to policies of insurance. The law as to insolvency and a ratable distribution of an insol- vent's estate is one that may appear to come within property and civil rights; just as the regulation of insurance policies is close to the subject of trade and commerce. These are some of the difficulties that arise under a sys- tem where the legislative power is divided between two enacting bodies — both claiming exclusive jurisdiction over the subject in dispute. The general legislative control of the parliament of Canada cannot be determined but by a careful elimination of the provincial jurisdiction over the general local government of the provinces. The Acts of the provincial legislature which conflict with the powers conferred specitically or generally upon the general govern- ment are ultra vires ; so on the other hand Acts of the Dominion parliament or government conflicting with powers (h) Attorney-General v. The St. Catharines Milling Coy. 13. O. A. 148. (/) Severn v. The Queen, 2 Can. S. C. 77. Queen v. Taylor, 36 U. C. 2. B. 218. (m) Russell v. The Queen— S. C— and The Queen v. Hodije, R. L. 9 App. (P. C.) 117. (h) McLaren v. Caldwell, L. C. 9 App. (P. C.) 392. THB DISTRIBTTTION OF LEOISLAXrVE P0WEB8 IN CANADA. 107 conferred exclusively upon the provincial legislature would be ultra vires, would be acts of usurpation. This must re- sult from eafVi being creatures of the nnp nowpr — onoh deriving its authority from the same source, (o) Within their respective limits each legislature is complete, absolute and supreme. The Dominion parliament has no more authority to interfere with or regulate matters specially assigned to the provinces than the provincial legislatures to regulate matters within the jurisdiction of the Dominion parliament. (j>) It has been usual to say that the legislative powers under the 92nd section given to the provinces are enumerated powers, and that the powers in the preceding section given to the parliament of Canada are the reserve, the general powers. It has been also said that a federal law is presum- ably valid unless on the list assigned to the provinces ; a provincial law is presumably void unless in the enumerated list. The provinces can claim nothing in the way of legis- lative powers except what is expressly given to them ; the Dominion can claim everything except what is expressly taken away from it. * This, however true it may be, is the language of American writers \Vith regard to the central and the state govern- ments of their Union ; and it is language that, from their point of view, cannot be objected to. Section 8 of the United States constitution begins as follows : Congress shall have power, — (1) To lay and collect taxes, etc." (o) Per Chancellor Spragge in Leprohon v. Ottawa, 2 Ont. app. 524. (p) Per Mr. Justice Burton in Parsom v. The Citizen's Insurance Co., 4 Ont. App. 96, and see also Chief Justice Harrison in Leprohon v. Ottawa, in 40 U. C. R. 48(5. fi If t 108 OOVKRNMENT IN CANADA. Ill I' * B ^ And then follow sixteen other sections enumerating the powers of the government of the United States. Section (9) imposes some restrictions on congress, and the follow- ing section prohibits the states from entering into any treaty, alliance or confederation, or laying any imposts or duties except what may be necessary for executing their respective laws. This is the extent of the enumeration ; and by the ninth amendment to the constitution it is not to be construed to deny or disparage others retained by the people. The tenth amendment, passed in 1791, is as follows : The powers not delegated to the United States by the constitution, nor prohibited by it to the states are reserved to the states respectively, or to the people. Compare the foregoing with the language of the 91st and 92nd sections of the B. N. A. Act, and there is a wide diflfer- ence. Of the seventeen subjects given to the United States government six refer to the army, navy, militia and the declaration of war ; commerce, currency, naturalization and the postal service form four others ; while the remainder are taken up with the powers of borrowing money, collecting taxes, the promotion of science, and some necessary pro- visions for the maintenance of any government. There is nothing in the first draft of the constitution in regard to the states except that they were guaranteed a republican form of government. Now, the United States government has such powers only as are to be found delegated to it by the 8th sec- tion, and its legislation is presumably valid if within its scope, and presumably void if not within it. The states can claim every subject, unless those within the 8th section, and have every power except what that section takes from them. THE DISTRinUTION OF LROI8LATIVE POWERS IN CANADA. 109 In the Canadian union, imder the B. N. A. Act, the legislative powers are strictly not powers conceded and powers withheld ; they are not enumerated as opposed to non-enumerated powers; there isno^rantand reservation. The fact was the provinces agreed to divide the powers into two classes, giving one to the central government, and retaining the other class for themselves. The mother country ratilied the arrangement exactly in this way, so that the legislation corresponds with the facts and circum- stances that brought it about. The sixth division of the Act is as follows : VI. DISTRIBUTION OF LEGISLATIVE POWERS. Powers of the Parliament. By the 91st section " the exclusive legislative authority of the parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated;" and then follow the 29 classes of subjects. In the 92nd section the language is varied in this way : Exclusive powers of provincial lef/islatures. 92. In each province the legislature may exclusively make laws in relation to matters coming within the classes of subjects next hereinafter enumerated, etc., And as in the preceding section the classes — 16 in all — as- signed to the provinces, follow. In the Dominion, the classes of subjects do not restrict the powers of the legisla- ture to deal with any law necessary for the peace, order or good government of Canada ; and it must be taken to be the case that the parliament of Canada can legislate in reference thereto if the case was not already met with in the provincial powers. To this extent it is correct to say that the reserve powers are in the Dominion government — that is the reserve after the two classes in sections 91 and 92 are taken into account. If: 1 II u \M 110 GOVERN MB NT IN CANADA. Still another limitation must be put on these reserve poworH. They must not refer to anything of a merely local or private nature in the provinces because clause (16) of section 02 absolutely and exclusively confers these on the provinces. The fact is that in drafting the constitution the framers put every conceivable subject for legislative action into forty- five classes ; the provinces retained sixteen of these, being fifteen enumerated and one general sub-section to cover every unenumerated residue of jurisdiction ; while the Do- minion took the remaining twenty-nine subjects with a corresponding proviso including everything over and above the twenty-nine subjects required for the peace, order and pood government of Canada. There is, if one keeps the different areas of the legislatures in view, as much in reserve for the provinces in their own sphere, as there is for the Dominion in its sphere. It is easy to see that great par- ticularity was necessary and that such was indeed used in the adjustment of these classes. There is something in reserve in each over and above the enumerated classes ; but they may be said to exhaust very completely the re- spective powers of each legislature. It is like what is often seen in deeds of grant ; A conveys 100 acres of land more or less, but for greater particularity mta it out by metes and bounds shewing 99^ acres, which n: ly generally be accepted as the size of the lot ; thougb if it should happen to be more the owner could take tiie benefit of it. In a federal constitution the owners of legislative power look to the classes of subjects when they are favorable to them- selves, and when they are not favorable they fall back on the general terms of the grant. Under this state of facts it is not so accurate to say that the enumerated subjects are assigned to the provinces, and the non-enumerated ones to the Dominion. It is not an V THK DIHTHIHUTION OF LEGISLATIVE POWERS IN CANADA. Ill exactly parallel case to the reserve powers in the states of the American union. Tlio distribution of powers that took place in Canada was intended to be some such division, as Mr. Dicey points out should be in every federation. •* The details of this division vary under every different federal constitution, but the general principle on which it should rest is obvious. Whatever concerns the nation as ii whole should be placed under the control of the national government. All matters which are not primarily of com- mon interest should remain in the hands of the several states. " And again Mr. Dicey says : *' The distribution of powers is an essential feature of federation. The object for which a federal state is formed involves a division of authority between the national Gov- ernment and the separate states. The powers given to the nation form in effect so many limitations upon the authority of the separate states, and as it is not intended that the central government should have the opportunity of encroaching upon the rights retained by the states, its sphere of action necesaarily becomes the object of rigorous definition. The constitution, for instance, of the United States delegates specially and closely defined powers to the executive, to the legislature, and to the judiciary of the union, or in effect to the union itself, whilst it provides that the powers " not delegated to the United States by the constitution, nor prohibited by it to the states are re- served to the states respectively or to the people. This is all the amount of division which is essential to a federal constitution. " The enumeration of the subjects, the apparent desire to include everything in them, the use of general words in both classes, and the manifest carefulness to provide for m fi" It ■1' m Hi 112 GOVERNMENT IN CANADA. the provinces, offer bo many difficulties over and above those presented by the wording of the United States constitution. When one section enacts that the central government shall generally have the power of making laws for Canada on all subjects, with the exception of those classes of subjects reserved to the provinces, and the next section enacts that each province shall have exclusive control of all civil rights, and generally of all local matters in the province, there is certainly not wanting a large field to be claimed with equal earnestness and equal sincerity by both authorities. Parliament has other powers besides those enumerated in section 91. It has established a general court of ap- peal — the Supreme Court of Canada — for all the provinces — an exchequer and maritime courts, and may establish any additional courts for the better administration of the laws of Canada, (q) It fixes the salaries of the Lieutenant- Governors, and provides for their payment, and fixes and provides salaries for nearly all the judges of Canada. In the removal of judges the parliament can take action on addresses p^'esented to it for that purpose. Although the appointment of the judges vests technically in the Governor-General, it is, of course, in the control of the ministry as representing parliament, and the parliament has a r ledy for the removal of incompetent ones, (r) It has all necessary and proper powers with the govern- ment, for performing the obligations of Canada or any of its provinces, as part of the British Empire, towards foreign countries, arising under treaties, between the em- pire and such foreign countries, (s) It has in its hands the power of deciding to whom the administration of 07)'Sec, 101. • (;•) Sees. 9G-100. («) Sec. 132. THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 113 government shall be entrusted. In other words it has the power of change of ministry ; for no ministry can carry on a government for any length of time unless supported by a majority in parliament. The duties and powers of an administration have already been referred to under the head of administrative government. It is noted for the l)resent, as one of the consequential ^jowers of parliament. Parliament, by enacting private bills, such as incorporating companies, conferring privileges, or removing restraints, etc., deals largely in legislation of a judicial character, which forms the greater bulk of its work and is of great importance to the country. By an imperial Act passed in 1871, power was given to the parliament of Canada from time to time, to establish new provinces in any territories forming for the time being part of the Dominion, and at the time of such establish- ment make provision! for the constitution and administra- tion of any such province, and for the passing of laws for the peace, order and good government of such province, and for its representation in parliament. Similar power was given to deal with the government of any territory not for the time being included in any province. O 9.Q.C. 9 $ 114 GOVERNMENT IN CANADA. i CHAPTER X. DISTRIBUTION OF REVENUE, ASSETS AND DEBTS. Dominion assets, public irorks schedule, duties, revenues, stocks — Debts, consolidated revenue fund, charges on it — Provincial assets, lands, mines, etc. Twenty-five sections of the B. N. A. Act are taken up with the property and liabilities of the Dominion and of the provinces. These are sections 102 to 126, both in- cluded. Other sections, such as the 91st and the 92nd, containing the distribution of powers, must also be looked at in connection with this matter. The several provinces retained all their respective public property not otherwise disposed of by the Act, allowing only the right to the Dominion to assume any lands or public property required for fortifications or for the defence of the country, (a) It is likely that lands assumed in this way would have to be purchased as in the case of appro- priated lands. The 13th sub-section of the 92nd section gives to the provinces property and civil rights, while the 1st. sub-section of the 91st. section of the Act gives to the Dominion the public debt and property. The public works and property of each province, as enumerated in the fol- (a) Section 117, Mr. Justice Burton says in the Mercer case, " I find no warrant in the Act for the assertion so frequently made ^hat all rights of property, not expressly given to the province, pass to the Dominion. On the contrary, I take it to be clear that the provinces re- tained all property and rights which were previously vested in them, nndc the constitutional Acts then in force, except those which by the confederation Act are taken from them and transferred to the Domin- ion. " I DISTRIBUTION OF BEVENUE, ASSETS AND DEBTS. 115 lowing schedule, are the property of Canada, within the meaning of this sub-section : {b) (1). Canals, with lands and water power connected there- with. (2). Public harbours. (8). Lighthouses and piers, and Sable Island. (4). Steamboats, dredges and public vessels. (5). Eivers and lake improvements. (6). Railways and railway stocks, mortgages, and other debts due by railway companies. (7). Military roads. (8). Custom houses, post offices, and all other public build- ings, except such as the government of Canada appropriates for the use of the provincial legis- latures and governments. (9). Property transferred by the imperial government, and known as ordnance property. (10). Armouries, drill sheds, military clothing, munitions of war, and lands set apart for general public purposes. Canada took over all duties and revenues of the old pro- vinces except such portions thereof as were by the Act reserved to their legislatures ; and there was formed out of them a consolidated revenue fund, (c) All stocks, cash, bankers' balances and securities for money belonging to each pro- vince at the time of the union, unless expressly reserved by the Act, were also placed to the credit of Canada, and went to reduce the provincial debts of the respective pro- vinces, (d) (b) Sec. 108. (e) Sec. 102. Bee the able argatnent, by the Hon. W. MacdongaU, C. B., reported specially in the Mercer Escheat ease, 1681. (d) Sec. 107. i: 116 GOVERNMENT IN CANADA. Although Canada assumed the debts and liabilities of the provinces, (e) they were settled at a certain sum, and if beyond, the provinces were to pay Canada interest on the excess at 5 per centum per annum. These sums were as follows : (/) Ontario and Quebec, liable to Canada, if their debt was over $65,500,000 Nova Scotia 8,000,000 New Brunswick 7,000,000 If the debts of the latter two provinces were not up to these respective amounts, they were to get the same rate of interest in half yearly payments in advance on the diifer- ence. Canada was to pay towards the expenses of the provincial governments the following sums : Ontario $80,000 Quebec 70,000 Nova Scotia 60,000 New Brunswick 50,000 besides an annual grant determinable on the population, and a special grant to New Brunswick, (g) This was the basis of the consolidated revenue fund of Canada in 1867 ; and the balance of the duties and revenues not appropriated were, along with all duties and revenues raised in accordance with special provincial powers, formed into provincial funds called the consolidated revenue fund of the province. * (e) Sec. 111. (f) Sec. 113, 114, 116, 116, 117. See R. S. C. cap. 46, as to additional Bubsidies, increasing these iigures about one-eightn. ( Tar as the commons is concerned, within the period of five years from its com- mencement. By section 20 of the B. N. A. Act, there must be a session at least once in every year, so that twelve months shall not intervene between the last sitting of the parliament in one session and its first sitting in the next session. The senate and commons are summoned by proclama- tion to attend at Ottawa on a certain day, usually in Feb- ruary, " for the despatch of business ; to treat, do, act and conclude upon those things which in our said parliament of Canada, by the common council of our said Dominion, may by the favour of God be ordained." The parliament is opened by the Governor in person in the senate chamber. The senators being assembled, the speaker commands the gentleman usher of the black rod to proceed to the commons and acquaint that bouse that " it is his Excellency's pleasure that they attend him im- mediately in this house." The commons then proceed in PROCEDURE IN PARLIAMENT — BILLS. 121 a body to the bar of the senate, and, if at the beginning of a new parliament, are instructed to choose a speaker for their house. They then return to their own house, and having chosen a speaker, are again summoned to the senate, usually on the following day, and the speaker is then pre- sented to the Governor-General. The speaker is the official means of communication between him and the commons, and is the first commoner in the Dominion. At the beginning of each parliament, and of each of its subsequent sessions, the Governor General opens the session with a gracious speech to both houses, which is reported to them by the speaker of the senate. This address is pre- pared by the ministers of the crown, and is supposed to contain the leading points of proposed legislation on the part of the government. Before it is reported, however, some bill is read pro forma. This is to assert the right of the parlia- ment to proceed with their work notwithstanding the fact that the crown may not have suggested to them any legis- lation. Afterwards the speech is discussed in the house, and, if the policy proposed in it is acceptable, it is adopted and a reply presented to the Governor- General. The legis- lation of the session is then taken up. English and French may be used in the debates in both houses, and the journals of the debates are entered in these languages. The rules of the house form quite a code of its kind. Members are not limited to time in their speeches, but they are not allowed to read them, though they may use notes and may cite extracts. Nothing disrespectful of Her Majesty or the royal family is permitted. It is not proper to refer to the other house or to previous debates, or to call a member by name, or to question the meaning he puts on his own words, (a) {a) Unless it cuti be established that the parliament of Canada has the power, by express grant, to adopt the cloture, such a power is not inlierent in a colonial legislature. The fact that the houses here in Canada may ;ll:!l'^ 122 GOVERNMENT IN CANADA. !:|: ' ■. t The house ordinarily meets every day at three o'clock except on Saturdays, and if sufficient members are present to form a quorum, proceeds to the despatch of business. This number, as has been remarked, is fifteen in the senate and twenty in the commons, of which number the speaker in each may be reckoned as one. Certain routine business, such as presenting and receiving petitions, and presenting reports of the different committees in the house, and motions are taken up every day as they occur, and after- wards the orders of the day, which are different every day, are read and proceeded with. A day or more in the week is usually reserved lO the government, in view of the large amount of business in its hands. Every member is privileged to bring in a motion or bill ; but in the commons he must give notice of his intention to bring in a bill. When a bill is brought in the house it is read simply without discussion. On the second reading the principles of the bill are discussed. If not interrupted at this or towards the next stage, the bill is committed ; that is, it is taken into consideration in a committee of the house. When the house goes into committee the speaker leaves the chair, and the mace, which represents royal authority, is put under the table. The house may then appoint any member as chairman, and the strict rules of debate observed in parliament are relaxed. There are three classes of committees : 1. Committees of the whole house ; 2. Select or special committees, which do not sit in the house, but in another room when the house is not sitting ; 3. Joint committees composed of members of both houses. adopt the rules of the imperial parliament does not of itself bring with it all future changes in the imperial parliament. See the case of liarfou V. Taylor, L. R. 11 App. Cuses, 11)7. ^ ri PROCEDURE IN PARLIAMENT — BILLS. 128 In committee each clause of the bill is considered and voted upon. If the committee have not time to get through they ask leave to sit again. When ready to report, or when the committee must rise, the speaker lesumes the chair and the house proceeds to business. If ready, the bill is then read a third time. The only parts usually left for a fourth reading are the preamble and ti^le, which are always the last things considered. The bill, having gone through these different stages in the house where it originates, is sent to the other house, where it passes through the same stages as to readings. Those in favour of the bill in the senate are the " contents " ; those opposing it the *' non- contents." In the commons the members vote by *' ayes " and " noes." In all unprovided cases the senate follows the rules, usages and forms of the house of Lords in Eng- land, and the commons in such cases follows the English commons. The duties of the speakers have been already referred to. (b) In case of amendments by one house to a bill sent from the other, the senate arranges conferences to bring about an agreement. For this purpose each house appoints its own bearers of messages. One of the clerks of either house may be a bearer from one house to another, and the master in chancery, attending the senate, is received as their messenger to the commons. Messages may also be brought up by one or more members of the commons to the senate. A committee of either house does not receive a messaj;/' from the other. The speaker takes the chair; and the message, after being received at the bar, is delivered to the speaker, who reports the same to the house — the answer is sent and received with corresponding formality. If no agreement as to amendment is arrived at, the bill is lost. v.. . y v5 {b) See ante, chaps. IV. and V. 124 GOVERNMENT IN CANADA. I l!l f, ii. After having been passed by both houses, it only requires the assent of the Governor-General to make it an Act of parliament. When a bill passed by both houses is present- ed to His Excellency, he has three courses constitutionally open to him. He may assent to the bill, in the Queen's name ; he may withhold the Queen's assent ; or he may reserve the bill for the signification of the Queen's pleasure. The Queen's assent is seldom withheld : but not unfre- quently bills are reserved for the signification of Her pleasure. The royal instructions to the Governor-General set out specifically certain bills, such as divorce, etc., which must be reserved. When the bill is assented to by the Queen's representative it becomes an Act of parliament — a part of the statute law. (c) All bills, except the supply bill, are supposed to come from the senate to the crown. The supply bill being essentially a bill of the house of commons, is assented to specially by the Governo.. -General, thanking them for aflbrding the funds necessary for carrying on the govern- ment of the country. The crown suggests the supplies ; and probably if the case should arise in this country the crown would originate a bill for a general pardon in ana- logy to British precedent. Beyond this, all measures originate indifferently either in the senate or commons. Some bills are left to be originated in select committees, some in committees of the whole house. The public bills affect the whole Dominion — private bills affect individuals, companies, or corporations. These latter bills, before be- ing entertained, require a deposit of $100 in the senate and $200 in the commons, and the costs of printing and translating the copies sent in. This is in order to cover (c) The old distinction between an Act of parliament and a statute was this, that an Act of parliament was an Act of two houses and that it became a statute only when the Queen assented to it. This distinction is now forgotten or lost sight of. ntOCEDURE IN PARLIAMENT— UlLLH. 125 the necessary expenses ; and private bills must also be advertised in the Canada Gazette, the official journal of the government, for two months before the house opens. When the work of the session is concluded, parliament is prorogued. The speaker of the senate is informed that the Governor-General will proceed to the senate chamber at a certain day and hour and close the session. At the proper time when the two houses are in session the com- mons is acquainted that it is His Excellency's pleasure that they attend him in the senate. The speaker in the com- mons and the members proceed to the bar of the senate and after the titles of the bills are read by the clerk in chancery, and the bills assented or reserved as the case may be, the supply bill is presented by the speaker of the commons. His Excellency replies, assents to the supply bill of the faithful commons, and declares the parliament prorogued. The session is then concluded and nothing can be done with any bill or proceeding till another session with the usual formalities has been commenced. This is the distinction between a prorogation and an adjournment — the latter simply continuing the work from day to day or to a day named, while a prorogation is from session to session. A dissolution on the other hand is the termination of the house of commons as composed of the actual mem- bers representing their constituencies. It does not affect the senate much more than a prorogation, except that it brings about a new set of members and possibly a change of ministry. A dissolution of parliament virtually means dissolving the commons. 126 GOVERNMENT IN CANADA. CHAPTER XII. CONSTITUTIONS OF THE PROVINCES. Less particularity in describing the provincial constitutions than the Dominion — Comparison with U. S. constitution — Veto — Statutory description of the provinces, execu- tives — Ontario and Quebec, ^^ova Scotia and New Bruns- wick — Poivers common to all — Disallowance — Strict and relaxed rietcs of the constitution, Mr. Justice Gwynne — Chief Justice Sir William Ritchie, provincial autonomy. It will be seen from the foregoing chapters with what particularity the Act of Union provides for the establish- ment, the jurisdiction, and the maintenance of the general government of Canada. It was a new creation, and digni- fied in express terms with the name of a parliament, {a) supplied with a certain amount of property and the power to acquire the other British provinces and territories adjoining it. The new government undertook to watch over the general interests of those colonies that entered the union ; the legislative and °cutive control were as sharply defined as could be wit' .n resorting to the codifi- cation of all subjects ; while tLo form and composition of the machinery of government were so detailed and compre- hensive as to leave that part of it little open to conjecture. (rt) Whether any British possession in America evei had a parliament before the Dominion of Canada got one, is a question that the reader can find discussed elsewhere and from opposite points of view, xs o plantation or colony ever received it in so many words, although it was certainly assumed to be reproduced under the constitutions of 1791 and 1840 in the Canadas. CONSTITUTIONS OF THE PROVINCES. 127 The provinces however remained ; two of them closely connected in their past history and very anxious about their old position ; two others not so anxious for a union, but equally tenacious of their former rights and liberties. When the representatives of these lour provinces came to terms concerning the new parliament for all of them, they did not apparently assume that everything would remain as theretofore in the provinces. In that respect the Canadian and United States constitutions differ very materially. In the latter case the individual states, so far as the constitution goes, are to be guaranteed a republican form of government. (/>) Eenouncing their right to deal with the powers delegated to the general government they purcued their way as individual states, leaving it to the courts to say whether they and the central governments kept within their respective limits. What took place in the Canadian union was very differ- ent from this. The powers were distributed between the general government and the state or provincial govern- ments, with a general reservation to the central govern- ment on all subjects extending over all the provinces, and a corresponding reservation to the' local governments on all domestic subjects connected with the provinces. Both these governments are liable to a veto in the exercise of their powers, but the provincial legislature is subject to the veto of the dominion government, while the dominion legislation is free from any provincial control except the common one of the courts. The veto, it is true, does not in practice extend to anything beyond the competency of the local legislature to pass any particular statute ; but it is made occasionally in judicial and political language to assume the form of control over provincial affairs. This power and the supplying of an executive officer called a \ X J V (6) Sec. 4, Act IV. I I I 128 GOVERNMENT IS CANADA. Lieutenant-Governor are the two circumstances common to all the provinces and about which the central and local governments are always and necessarily in connection with each other. The Lieutenant-Governor is assumed to be the chief of each local legislature, but it was only in On- tario and Quebec that his position and duties were expressly defined by the Act. The constitution and executive author- ity in Nova Scotia and New Brunswick were unaffected by the Act and continued as they were before 1867. (c) The same was the case with the constitution of their legisla- tures ; {(1) but the duties of their chief executive officers were not set out in detail as was the case in Ontario and (Quebec, (e) In all the provinces the provisions as to appropriation and tax bills, the recommendation of money votes, the disallowance of Acts, and the signification of pleasure on bills reserved apply equally and are the same as in the Dominion of Canada with the substitution of one year instead of two years in regard to the disallowance or reservation of bills. Ontario and Quebec were not content with retaining the constitution of their predecessors, as was the case with the other provinces. They had inserted in the Act of Union a number of provisions as to their executive, the executive council, Lieutenant-Governor in council, the great seal, the executive officers, with their powers and duties, the summoning of their assemblies in the Queen's name, the continuance of existing laws as to elections, etc., the yearly session of their legislatures and a number of details as to a speaker and the mode of voting in the house of assembly. (/) All the provinces have equal (c) Sec. 64.' (d) Sec. 88. (e) Sec. 65. (/) Sees. 63, 65, 66. 134-&-6 and 69 to 87 both included. For those who contend that the legislatures in Ontario and Quebec are " the heirs at law " of the old parliaments of Upper and Lower Canada, there must be something supei^uous in these sections. I CONSTITUTIONS OF THE PROVINCES. 129 control over their own constitutions, and they can amend them from time to time except as regards the office of Lieutenant-Governor. The establishment and tenure of provincial offices and the appointment and payment of provincial officers are also within their exclusive jurisdic- tion, ig) All articles grown, produced or manufac- tured in any one of tliem are admitted free of duty by all of the others ; (/t) their lands and property, as is the case with Canada, are exempt from taxation ; (i) and all laws in force at the time of the union, all courts, legal commissions, powers and authorities and all officers judicial, administrative and ministerial existing at the union con- tinued as if no union had been effected, subject to be repealed, abolished or altered by the proper authority. (,/) This is the substance of the various provisions of the B. N. A. Act as regards the provinces. If the power of disallowance of provincial legislation is strictly viewed, there is an end to a Canadian federal union. It is essential to a federation, as has been already seen, that each government should be supreme within its own limits, (k) The Dominion government has the power of disallowance of provincial statutes within one year after they are enacted. There is no limitation as to this dis- allowance, except that the Governor-General exercises the right on the responsibility of ministers who are elected to office by the people of the provinces. This power is not so destructive of provincial rights as it might appear from the wording of the 90th section, (l) All legislation in * io) Sec. 92, S.S. 1 and 4. (//) Sec. 1-21. (() Sec. 12.5. U) S^c. 12!). (fc) Autc, page H. ' (/) Lord Carnarvon stated officially to Lord Dufferin during the vexed controversy over the New Brunswick School Act : — " The constitution of Canada does not contemplate any interference O'S.G.C. iO 130 GOVERNMENT IN CANADA. li Canada is subject to disallowance from imperial authorities, and it was thought desirable to allow the responsibility of BO grave an act to rest on the people immediately affected, and to be exercised by the local advisers of the crown, who might be expected to be more familiar with the lines of distribution between provincial and Dominion power than are the advisers of the crown in England. In the United States the supreme court is thought sufficient to keep the legislatures within their limits. In Belgium there is not any constitutional cheek, but with us the aggressiveness ot the provinces was subject to a two-fold restraint. However, it could scarcely be expected that a power of disallowance would be held over the larger government and none over the others ; and there was much force in leaving all local questions to be settled by the Canadian people themselves. After a statute of the local legislature has been enacted and disallowed for several successive sessions, the subject in dispute, as in the case of the Streams Bill of Ontario, comes before the judicial committee of the privy council in some way, and the limits of jurisdiction are thus defined. There would be less contradiction in the preamble of the Act if the sovereign authority of the Empire was held equally , over the two governments, and exercised in exactly the same way. A federal union should secure to its constituent states an absolutely independent sphere of action within their assigned limits ; otherwise there is no federation, hn) With the written constitution in a way not quite in pur- suance of the history and intention of it, one may expect to have two very decided and contradictory views in regard to the provinces and the scope of provincial authority. with provincial legislation, on a subject within the competence of the local legislature, by the Dominion parliament, or, as a consequence, by Dominion ministers," (/») See post as to principles upon which the power of disallowance is exercised. CONSTITUTIONS OF THE PROVINCES. 131 One of these emanates from the strict, literal interpretation of the B. N. A. Act, construed exactly as any other statute is construed, and with steadfast adherence to the principles of the British constitution ; the other is the result of close regard to what is understood by a federal union seen in the light of a relaxed rule of interpretation. If the decisions of the English court of appeal had not overborne, to some ex- tent, certain extreme views of Canadian judges and states- men, the result would have been one party viewing the Canadian union from a federal or central standpoint, and another party regarding the union from a provincial point of view. The advocates of these aids to discovering the meaning of our written constitution, are probably not con- cerned by any decision that conflicts with their own view of it ; but it has become apparent within the last half-dozen years that a strictly legal interpretation is not the one con- genial to the lords of the privy council. On the other hand, the idea of a federation is not or was not allowed to have much weight in very many instances with the judges of our own courts. To have a federal union is one thing and not impossible, and the same is, of course, true of a consti- tutional monarchy ; but any attempt to combine both of these in one country can only end in the partial or com- plete extinction of one or the other. It must be understood, both as a historical fact and as the fair reading of the B. N. A. Act, that the Canadian union is, and was intended to be, a federation. It has all the essentials of a federal union. The Act of union, however, recites that the federal union shall have a constitution similar in principle to a constitutional monarchy. The difficulty then arises whether the federation is to neutralize the British principles of monarchical government or to be neutralized by them. The view taken in these pages is that in applying the principles of British government.they must be subordinated 132 GOVERNMENT IN CANADA. to the federation whenever their application would be fatal to the existence of a federation. This view accords with the historical fact and is not an improper rendering of the words of the statute of 1867 : a federal union with British principles, if possible, but a federal union at all events. It is in regard to the provinces that these principles of British government have met with the greatest difficulties and opposition. The early sections of the Act of Union set out with great particularity a parliament for the Dom- inion — the Queen and two houses — a privy council appar- ently for the sole use of the Dominion ; and then follows a very large grant of legislative power, in words very like what were used in preceding constitutions, but with just such a reservation to the provinces as was necessary to the existence of a federation. Except this limit to legislative power all these sections pointed to a reproduction of a government on British principles. There is no difficulty in the central power being as monarchical as needs be. It was copied and moulded on British principles. The question virtually arose whether or not this reproduc- tion of a British parliament would not suffice for the provinces as well as for the Dominion, especially as there is very little in the Act to lead one to suppose that a copy- ing of English forms and procedure was to be carried into every provincial legislature. The provinces, regarding themselves as the factors of the union, were not disposed to be relegated to the unimportant position of municipal councils, and from the beginning they asserted their co- ordinate jurisdiction and the perpetuation of their ancient prerogatives. Looking at the historical side of the case they regarded the central power as one created by them- selves, having such duties and jurisdiction as they thought tit to bestow on it, and reserving to themselves whatever was too important or valuable to be given away. The ':i ;:i! CONSTITUTIONS OF THE PROVINCES. 183 m central authorities, on the other hand, point to the statute and the unity in the principles of British government, and they say, " We have the sole parliament, you have no parliament ; our executive is the Queen, the Queen is no part of your constitution, you are no longer colonies of the empire, you are our provinces, and the imperial govern- ment or the Queen will not notice you except through us ; you arc only the provinces of a colony ; we have the power to disallow your Acts ; we provide you with Lieutenant- Governors and you have no control over us except through appeal to the paramount law of the constitutiori. " It is not eas}' to define, in a few words, the exact position of the provinces comprising the Dominion of Canada. The strictly legal view of the Act of Union is that in 1867 three existing provinces desired to be federally united into one Dominion ; and they were so united, and formed thereafter Canada. The three provinces merged their existence in Canada. They were then lost sight of, and in their stead Canada appeared, and was immediately afterwards divided up into four provinces, with the power of legislating on certain limited subjects under the supervision of the par- liament of Canada. The late province of Canada, with Nova Scotia and New Brunswick, voluntarily terminated its existence as a distinct portion of the British possessions or colonies. They were to be thereafter known under a new name collectively, and with a new constitution. Had the new political division one legislature only for all purposes, there would be little difficulty in defining the new situation. But the duty of legislating for all parts of the new Dominion was deemed by the framers of its constitu- tion so great that one central parliament could not satis- factorily accomplish that task. Accordingly, in almost the very next section of the Act of 1867 uniting the three provinces into Canada, it is declared that Canada shall be 134 GOVERNMENT IN CANADA. i I divided into four provinces, with territorial areas the snmc- as they had been prior to the union, with exchisive but curtailed powers of legislation, and with their chief execu- tive otlicei's provided by and representinj^ the government of Canada. The Act of Union divided the Canadas as they were before 1840, and the old provinces retained their geographical boundaries. They were merged in the Dominion, and then re-created and given another set of names — Ontario, Quebec, Nova Scotia and New Brunswick. Those who contend for a strict interpretation, insist that there is a great difference between the present and past position of these provinces. Formerly they were colonies of the empire, and possessed governors or lieutenant- governors, who were the immediate representatives of the crown in their provinces. Now their chief executive officers are members of the colonial admmistration staff, and are but lieutenants of the Governor-General of Canada : the provinces are no longer colonies, but provinces of a colon}'. Under the former constitution they had, subject to imperial authority, the right to make laws for the peace, order and good government of their provinces ; now their legislative power is limited to a prescribed set of subjects ; and though they may be supreme within these constitutional limits, the imperial authority has entrusted to the government of Canada the control of keeping them within such limits. Whether wisely or foolishly, the provinces have surrendered a large portion of their rights to the determination of the federal government at Ottawa. Any attempted assumption of authority beyond the rights retained by the provinces, if not vetoed by the Governor-General, is liable to be declared unconstitutional by the provincial or by the Dominion courts. ^ Again, it is said that the lieutenant-governors, being deputies of the Governor-General, and not of the Queen, CONSTITUTIONS OF THE PROVINCES. 135 have no power to give the Queen's sanction to any Act of the legislature. They assent on behalf of the Governor- General, {n) They have not the power to do so under the written constitution ; and there is certainly something anomalous in the case of the Governor-General, the Queen's deputy, disallowing an Act passed in the provincial legis- lature by the Queen's Most Excellent Majesty. An objec- tion was formerly raised in the American colonies in the corresponding case of a Governor-General who was unques- tionably the royal representative, but it was over-ruled. On the matter being referred to England an opinion was given in these words : — " I have heard objections drawn from the style of this Act. ' It is enacted by the King's Most Excellent Majesty,' etc., but I think this objection of little weight. The King is here named in his royal and politic capacity, which, at the time of making the Act, was to this purpose residing in his Governor, who there enjoyed and exercised the func- tions of it in this province, and the personal assent was not necessary to the Act." (o) " The Queen," says Mr. Justice Gwynne, " forms no part of the provincial legislatures, as she does of the Dominion parliament. * * The use of her Majesty's name by these provincial authorities is by the Act confined to the sum- moning and calling together the legislatures ; and, singular as it seems, this is by the 82nd section, rather by accident, I apprehend, than design, confined to the Lieutenant- Governors of Ontario and Quebec." (p) " By the 91st section it is declared that the Acts of the Dominion parliament shall be made by the Queen, by and (n) Per Draper, C J., in re (ioodhue, 19 Grant. (o) Chalmer's Opinions. (/}) The case of Lenoir v. Ritchie, decided at Ottawa in 1879, contains some strong views on these points. 136 GOVERNMENT IN CANADA. I ! I with the atlvice of the senate and commons, treating the Queen herself as an intej^ral part of the parliament ; whilst the 92n(l section enacts that the *' Legislatures " of the respective provinces, that is, the Lieutenant-Governor and the legislative assemhly in provinces having hut onehcusf, and the Lieutenant-Governor and the legislative council and assemhly in provinces having two houses, shall make laws in relation to matters coming within certain enumer- ated classes of subjects, to which their jurisdiction is limited. Nothing can be plainer, as it seems to me, than that the several provinces are subordinate to the Dominion government ; and that the Queen is no party to the laws made by those local legislatures, and that no Act of any such legislatures can in any manner impair or affect Her Majesty's right to the exclusive exercise of all her prero- gative powers, which she continues to enjoy untrammeled, except in so far as we are obliged to hold that, by the ex- press terms of the British North American Act, or by irresistible inference from what is there expressed, she has by that Act consented to be divested of any part of such prerogative." (q) « The foregoing will give an idea of the case from a federal point of view ; the provinces, however, have not allowed their case to go by default. They maintain that the Act of Union was passed at the request of the provinces and that so far as the provinces are concerned, whatever has not been expressly delegated to the Dominion has been re- served to themselves. Whatever the provinces had under former constitutions they shall have unless it can be pointed out in the Confederation Act as taken away from them. The old constitutional Acts were not repealed. As to land and property, everything has been retained except what is contained in the sections and schedules of the Act. (q) Lenoir v. Ritchie, 3 S. C. Can. 634. t CONSTITUTIONS OF THE PROVINCKS. 137 It is decided tliat escheated land falls to the provinces, and an appeal is now pending from the decision of five eminent judges in Ontario, who hold that Indian lands helong to the provinces. The provinces retained the administration of justice, civil rights, the municipal system, the constitu- tion of the courts and everything of a local and private nature. The scope of the legislative work assigned to the provinces is relatively of greater importance to the people than is the work allotted to the Dominion. Tlieir powers are derived from the same source and are on the same plane — the Queen disallowing directly or secondarily dominion or provincial laws. Whatever the Dominion is, the i^ro- vinces have made her such, and they could unmake her hy the same process. If they withdraw their support and adhesion the structure falls to the ground. A recurrence to the history of events leading up to con- federation is not generally allowahle in the legal construc- tion of the statute. The intention is to he gathered from the words of the Act. But the British statesmen and judges are disposed to rega-rd the Act of Union as a compact — a treaty — and to adopt a rule of interpretation in the light of preceding events. That is favorable to the provincial view. The strict rendering of the B. N. A. Act, in regard to the execu- tive, is somewhat shaken by the decision in the Mercer escheat case, decided since Lenoir v. Rxtclde, and the ten- dency of the courts has been rather in favour of the provincial view of the question. The late chief justice of the supreme court. Sir William Johnston Kitchie, says (r) : " When it is claimed that a Lieutenant-Governor and council are not competent to deal with a matter, or to do an executive administrative Act (r) Mercer v. The Attorney-General of Ontario, a S. C, 637. 138 OOVERNMENT IN CANADA. that was within their competency before confederation, the burthen is cast on those putting forward such a claim to show clearly from the B.N. A. Act that by express language or by necessary implication the local governments have been deprived of that authority, and the power has been placed in the executive authority of the Dominion. To say that the Lieutenant-Oovernors because appointed by the Governor-General do not in any sense represent the Queen in the government of these provinces is, in my opinion, a fallacy ; they represent the Queen as Lieutenant- Governors did before confederation, in the performance of all executive or administrative Acts now left to be performed by Lieutenant-Governors in the provinces, in the name of Ihe Queen. " The same learned judge says : " Special pains appear to me to have been taken to preserve the autonomy of the provinces so far as it could be consistently, with a federal union. " WOVKRN.MF.NT IN CANADA. 180 CHAPTEH XII r. I TIIK l-IiOVINCIAL LEOISLATIRKS. Li<'iit('niiHt-Gi)rern()rs, in Ontario oml (Jiiehcc, in other prorincen — Former non'morn — Ponwra, diHiniasul, opin- ions of Knrl Kimberh'i/, of Sir John Macdonald, Mr. Justice Gn-ipine — Lepixlotire dssenihlies, proccilnre, — Kxtent of diHaUownnce, Mr. Lash's memorandum. The provincial legislatures are not framed on any uni- form plan. The Dominion government supplies the execu- tive officer — the Lieutenant-Governor — and the provinces by virtue of the Act of union provide the house or houses of assembly. In Ontario the legislature consists of the Lieutenant-Governor and one house — a legislative as- embly. {a) In Quebec there are two houses — a legislative council as well as an assembly, — and the Lieutenant-Gover- nor is also part of their legislature by the Act. {h) In Nova Scotia and New Brunswick the legislatures were allowed to continue as before the union, subject to the provisions of it. So far as the constitution of these legislatures is con- cerned, they were afl'ected to the extent of having a Lieu- tenant-Governor sent them by the Dominion and not by the imperial government. The Act defines nothing as to their powers, authorities and functions beyond the recom- mendation as to money votes, and provisions as to assent, disallowance and reservation of bills, which are the same as the provisions for the other Lieutenant-Governors. (a) Sec. (",!). (b) Sec. (!;■). ji»»l (i 140 GOVERNMENT IN CANADA. The provision of the Act as to the Lieutenant-Governor in council means "acting by and with the advice of the executive council " of the province, (c) but this is the only section in the Act that applies generally to all the lieuten- ant-governors except some unimportant provisions as to the oatb, and tenure of office, salary, administration, etc. {d) In Ontario and Quebec the case is different. By the OSth Sec. " All powers, authorities, and functions which under any Act of the parliament of Great Britain, or of the parlia- ment of the United Kingdom of Great Britain and Ireland, or of the legislature of Upper Canada, Lower Canada or Canada, were or are before or at the union vested in or exerciseable by the respective governors or lieutenant- governors ot those provinces, with the advice and consent, of the respective executive councils thereof, or in conjunc- tion with those councils, or with any number of members thereof, or by those governors or lieutenant-governors in- dividually, shall, as far as the same are capable of being exercised after the union in relation to the government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Lieutenant-Governor of Ontario and Quebec respectively, with the advice or with the advice and consent of or in conjunction with the respective executive councils, or any members thereof, or by the Lieutenant-Governor individually, as the case recjuires, subject nevertheless (except with respect to such as exist under Acts of the parliament of Great Britain, or the par- liament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the respective legislatures of Ontario and Quebec." Bearing in mind the differences in the powers of the chief executive officers in Ontario and Quebec from those in the other provinces in the union, the mode of appoint- {(■) Sec. () Ci. (d) Sees. •)!) to 02. THE PROVINCIAL LEGJSLATURES. 141 ment and other particulars which are common to all may be enquired into. The Governor in council appoints a Lieutenant-Governor for each province, by instrument under the great seal of Canada. Under the federal system of government the chief execu- tive officers in the province are now members of the civil service of Canada, and not as formerly, members of the civil service of England. They are neither appointed nor removed by the crown, but by the Governor-General of Canada : they are local not imperial officers. The Lieu- tenant-Governor is head of the legislature, or rather the legislature is composed of a Lieutenant-Governor and a house of assembly, either with or without a legislative council. He is essential to the legislature, and is chief of the executive in the provinces. His assent to all bills in behalf of the Governor-General is necessary before they become law ; and he has a negative voice, probably the same as the crown, in all legislative Acts. In 1875 the secretary of stt-te for the colonies wrote : " The Lieutenant-Governors of the provinces of the Dominion, however important locally their functions may be, are a part of the colonial administration staff, and are more immediately responsible to the Governor-General in council. They do not hold commissions from the crown ; and neither in power nor privilege resemble these governors of colonies, to whom, after special consideration of their fitness, the Queen under the great seal and her own hand and signet delegates portions of her prerogatives, and issue her own instructions." Sir John A. Macdonald, in his report as to marriage licenses in 1869, speaking of Lieutenant-Governors, says : " They do not hold their appointment directly from the Queen, but are appointed by the Governor General in 142 GOVERNMENT IN CANADA. council pursuant to the 58th section of the Act. Their powers are simply those conferred on them by statute, and they have no right to deal with matters of prerogative as representatives of the sovereign." The effect of Earl Kimberley's reply to the Dominion government in the Queen's Counsel case, 1872, would indi- cate that the powers of a Lieutenant-Governor since 1867 are not so great as they were formerly. He says : " The Governor-General has now power as her Majesty's representative to appoint Queen's counsel, but a Lieutenant- Governor appointed since the union came into effect (1867) has no such power of appointment." («) A Lieutenant-Governor holds office during the pleasure of the Governor-General ; but the usual length of his term of office is five years. (/) He cannot be removed within that period without cause assigned. This cause is to be com- municated to him in writing within one month after the order for his removal is made ; and shall be communicated by message to the senate and to the house of commons within one week thereafter, if the parliament is then sitting ; and if not, then within one week after the commencement of the next session of the Parliament. {(/) The senate and commons must be the judges as to sufficiency of the cause alleged. It appears that it is sufficient for the ministry at Ottawa that parliament has passed a censure on his con- (!». THE PROVINCIAL LEGISLATURES. 143 duct. Whenever it is felt by tbe Dominion government that it is for the public interest that a Lieutenant-Governor should be displaced, then he is and ought to be removable. He has no vested right to his office for the full term ; nor does he hold office for the full term ; nor does he hold office during good behavior, like our judges, (h) He is answer- able to the Governor in council, just the same as that officer is answerable to the imperial government ; and the administration of the day must take the responsibility of his removal precisely the same as of any other adminis- trative act. The cause may be insufficient or unreasonable ; but when the cause is assigned for his removal, and the parliament expresses itself thereon, the constitutional powers of the Governor-General to dismiss the Lieutenant- Governor of a province cannot be questioned. The legislatures are composed of one or two houses, as the different provinces may think desirable. In Nova Scotia and New Brunswick they were to remain as before confederation ; while many particulars are mentioned in the Act in reference to the constitutions of Ontario and Quebec. A single house in Ontario, with 82 members, is provided by the 69th and 70th sections of the Act. Two houses were assigned to Qinibec, with 65 members in the elective assembly and 24 le;: jlative councillors, (i) the latter to have the same qualifications as the senators of the province of Quebec, and like them to hold office for life. The legislative assembly is called together in the Queen's name by instrument under the great seal of the province. The limit set for each assembly was four years, and a yearly session, as is required by the parliament of Canada, is necessary in the case of these provinces. A special provision as to the first elections (/() Sir John A. MacdonalcVs memorandum to the Governor-General in the Leftf/Zw case. (0 Sec. 71 to 81. M 144 GOVERNMENT IN CANADA. (extending also to Nova Scotia) provided for the first summoning after the union, and the provincial capitals or seats of government are given in an early section, (j) These are Toronto for Ontario, Quehec for Quehec, Halifax for Nova Scotia, and Fredericton for New Brunswick. The procedure in provincial legislation is almost as intri- cate and elaborate as in the parliament at Ottawa. In those provinces which have no legislative council, the bills have of course to pass through the usual stages in one house only. The provisions relating to the election of a speaker originally, and on vacancies, to the duties of the speaker, the absence of the speaker, the quorum, and the manner of voting, are the same in the Ontario and Quebec legislatures as in the Canadiau house of commons. The provisions in the Act relating to appropriations and tax bills, the recommendation of money votes, the assent, allowance and reservation of bills, apply to all the provinces substituting the Lieutenant-Governor for Governor-General, and the Governor-General for the Queen. The Lieutenant- Governors, on a bill being presented to them, shall, accord- ing to their discretion, but subject to the provisions of the Act, declare that they assent thereto in the Governor-Gene- ral's name, or that they withhold the Governor-General's assent, or that they reserve the bill for the signification of the Governor-General's pleasure, (k) A bill reserved by the Lieutenant-Governor for the signi- fication of the pleasure of the Governor-General in council shall not have any force unless and until, within one year from the day on which it was presented to the Lieutenant- Governor for the assent of the Governor-General, the Lieutenant-Governor signifies by si^eech or message to the house or houses of his legislature, or by proclamation, that (j) Sec. <)8. (k) Sec. 87. r^^ THE PROVINCIAL LEGISLATURES. 145 it has received the assent of the Governor-General in council. Bills assented to by the Lieutenant-Governor may be annulled by the Governor-General in council within one year after an authentic copy of the Act has been sent to him. The Governor in council in the. Dominion parliament is said on very high authority to have the same controlling power over the provincial legislatures that the imperial parliament has over the Dominion. The extent of provin- cial subordination, however, is not to be misunderstood. Both the provinces and the Dominion have their own de- fined, ascertained limits ; and so long as they keep within these they can constitutionally enact what laws they please without reference to each other. The power of disallowing provincial Acts rests with the central and not with the im- perial government, as in the case of disallowing Dominion Acts ; but this will always be considered a harsh exercise of power unless in cases of great and manifest necessity, or where the Act is so clearly beyond the powers of the local legislatures that the propriety of interfering would at once be recognized. (/) It will always be very difficult for the federal government to substitute its opinions instead of that of the legislative assemblies in regard to matters within their provinces without exposing itself to be reproached with threatening the independence of the provinces, (m) Mr. Lash, Q.C, late deputy of the minister of justice, prepared a memorandum on the subject of disallowance in which, after sheving the very small number of cases in which it was exercised and ]iow reluctantlv it was done, he stated that it was the practice, before taking such an ex- treme course with respect to any Act, to call the attention of the provincial government to its objectionable features, (/) Per 0. J. Richtirds, in Si'vern v. the Queen 2 S. C. Reports ittJ. (Ill) Sirrni v. t]ie Qiwcn, 2 S. C. Reports 70. OS.G.C. 11 NJ ;? i ^•^ i "i^^ f V i i 1 i| m '■ '1 1 \i ^ >), I N : !! ■ v^\ 146 GOVERNMENT IN CANADA. I \l: and give them an opportunity of promoting its repeal or amendment. Occasionally however, from the very nature of the Act itself or from the shortness of time for disallow- ance, it has been thought necessary to disallow it without waiting for its repeal . . .If any Act be in its main features, clearly beyond the powers of the provincial legis- lature, it would seem to be the duty of the Dominion authorities to disallow it, unless within a limited time, it be repealed or so amended as to remove these objectionable features. It is often very doubtful whether an Act be within or beyond the powers of a provincial legislature ; and very often Acts, which in their main provisions, are clearly valid, contain some provision beyond the competence of the legis- lature. Moreover in the character of the enactments which may be beyond the powers of the local body, there is often a vast diflference. Though all such provisions are alike void, some of them may without inconvenience be passe4 over without interference by the Dominion govern- ment, while to take the same course as to others might produce serious embarrassment and confusion. It is there- fore in each particular case a question to be decided, whether an Act though containing some void provisions, should be disallowed or left to its operation. In deciding as to the disallowance of an Act, the govern- ment is not confined to considering its validity in a legal point of view. The power of disallowance is a general one ; and in arriving at a conclusion as to its exercise, the gov- ernment has undoubtedly the right to take into consider- ation other matters than those affecting merely the validity of the Act. For instance, they may and should consider whether it affects imperial or Dominion interests. The same principles (among others) would apply in deciding as to giving or withholding assent to a reserved bill. . . . GOVERNMENT IN CANADA. 147 I n CHAPTER XIV. THE PROVINCES — ONTARIO. Legislature, how composed, one house, members' qualifications —Speaker, quorum, procedure — Executive council, depart- ments — Attorney-General — Provincial secretary — Pro- vincial treasurer, agriculture — Commissioner of crown lands — Commissioner of public works — Minister of edu- cation. The Lieutenant-Governor and the legislative assembly of Ontario form the legislature of this province. The Lieutenant-Governoi' is appointed by the Governor- General in council, and holds office for five years, unless sooner removed for cause assigned. He is the chief officer of the executive in the provinces and the heat^. of the legislature. The provincial legislature has no power over him or his office, although he acts only upon its advice. He is a corporation sole, and may appoint a deputy for certain purposes, such as executing marriage licenses, money warrants, and commissions under any provincial statute. As advised by the executive council of the province, he nominates such proper persons, in number not exceeding six, to the departmental offices. In his absence, illness, or other inability, the Governor-General may appoint an administrator to execute his office and functions. Acting on the advice of the executive, he summons and calls together the legislature in the Queen's name, and may dissolve the same within the four years of its duration. The assemltly is now composed of ninetyf members ; and for the purposes of representation the province ia I; 148 GOVERNMENT IN CANADA. 1 A divided up into eig hty e i gh t electoral districts or ridings, Toronto returning mm members from one district. These do not correspond to the electoral districts in Ontario which send members of parliament to the house of com- mons at Ottawa ; and, again, neither of these divisions corresponds with the division of the province into counties for municipal or judicial purposes. Every county is a county for municipal purposes (to be noticed hei'eafter"), and sends at least one member to the local and federal house, while sometimes two or more counties are united for judicial purposes. Members of the local legislature require no real property qualification, and are elected for four years. No senator, privy councillor of the Dominion who is a member of the commons, nor any member of the commons, can hold a seat in this house ; no person accepting or holding any office, commission or employment under the crown by provincial or dominion appointment, and to which office any salary or fee, allowance, or emolument in lieu of salary, is attach- ed, can be a member — except those members of the execu- tive office who are the members of the government of the province ; and with these exceptions, no person accepting or holding such office, commission or employment of profit whether under provincial or dominion appointment, or under any head of a department in the provincial govern- ment, is eligible, no matter whether such profit be payable or not out of the public funds. But any army, navy or militia officers (except militia staff officers receiving permanent salaries), and any justice of the peace, and any notary public, may, unless otherwise disqualified, be members of the legislative assembly. No public contractor is eligible to sit or vote in the house ; and any disqualified person who does so shall forfeit the sum of §2,000 per day for so doing. THE PROVINCES — ONTARIO. 149 The house meets every year at Toronto, and is presided over by a speaker appointed by the members. Not more than twelve months must intervene between the last sitting in one session and the first sitting in the next session. (86th sec. B. N. A. Act.) Twenty members in the house are the smallest number capable of transacting business or forming a quorum. The speaker may be one of the number. The conduct of busi- ness, the rules of debate, the regulation and management of the house, questions of proceedings, etc. are regulated by the house ; and in all unprovided cpscs the rules, usages and forms of the house of commons in England are followed. The provisions relating to the election of speaker, the absence of the speaker, quorum, and mode of voting, are the same in the provincial legislature of Ontario as in the house of commons for Canada. (87th sec.) The house is not organized till the speaker is chosen ; and there is no vacancy in the office till such choice has been made and the office has been filled. In the first meet- ing of the assembly after a general election the speaker is elected. Before the election of speaker the clerk of the house is substituted for the speaker, but the clerk has no casting vote in case of an equality of votes for speaker. No one can vote in the election of speaker but a member of the assembly. In case the house were equally divided in the election of a speaker, no one would be appointed, (a) The procedure as to bills, orders, etc., is as nearly simi- lar to that in the house of commons as can be. A bill here has to pass through the same stages, though only through one assembly, there being no upper house or legislative coun- cil in this province. The Lieutenant-Governor then may assent to a bill, or diss .nit from it, or reserve it for the con- {ii) Opinion of the late Hon. J. H. Cameron. 150 GOVERNMENT IN CANADA. sideration of the Governor-General, as Las been already explained. He recommends all money votes, opens, pro- rogues, and dissolves the house, issues orders in council, proclamations, etc. (90th see.) The executive council of Ontario is composed of six members, who are appointed under the grent seal of the province, and hold office during pleasure. The ministers have charge of the following offices, some one member al- ways taking two departments, {b) • 1. Attorney-General for the province. 2. A secretary and registrar of the province. 3. A ti"«a8urer of the province. 4. A commissioner of crown lands. 5. A commissioner of agriculture. 6. A commissioner of public works. 7. A minister of education. Any of the powers and duties assigned by law to any of the officers constituting the executive council may, by order of the Lieutenant-Governor in council, be transferred to any of the other officers, by name or otherwise. No member of this council can sit or vote as a member of the commons of Canada without forfeiting his office as councillor. The executive councillors are the administration or ministry of the province — the provincial privy council so to speak — and they form the government of the day. They must have the support of a majority in the legislative assembly. They hold office during pleasure of both the Lieutenant-Governor and the assembly ; but the choice of the assembly is the choice of the Lieutenant-Governor. (b) By Sec. 134 of the B. N. A. Act the number was placed at five with power to add others. By the following section all the " rights, powers, functions, responsibilities, or authorities " as vested in such offices before confederation, passed to the provincial executive councillors so far as these duties, etc., were not repugnant to the Act. T THE PROVINCES — ONTARIO. Iftli He has the undouhted right to dissolve the house and to dismiss ministers having a majority of the memhers at their hack ; hut he does that always at great risk to him- self, and prohahly with serious results to his province. The procedure and line of conduct of the local legislatures has heen copied so diligently from the parliaments of Canada and Great Britain, that in ease a Lieutenant-Gov- ernor follows the analogous power of the crown in these places, he will content himself to follow the advice of his responsihle ministers rather than attempt to find ministers supporting his own opinions. He has in fact no opinions. The ministers are the choice of the provincial memhers and answerahle to the people — he is neither answerahle to the province nor its choice. If it he a question who is to rule on any occasion, the people affected have no right to complain if the determination of it is left in the hands of their own representatives. Assuming, therefore, that the provincial government is carried on by its executive under the advice of an executive council, the principles in regard to a change of government, the responsibility of the ministry, its relations to the execu- tive and to the assembly, and all other matters peculiar to a privy or executive council apply equally in the provin- cial as well as in the dominion government. Laws are enacted and enforced. Except as otherwise provided by the Act, all laws in for_ce_in the late province of Canada^jall courts of civil and criminal jurisdiction, and all legal com- missions, powers and authorities, and all officers, judicial, administrative and ministerial, co ntinue in jOntajjo, as well as^in the other provinces, as if the union had not beea_ made, subject to imperial legislation, to be repealed^ ftdSoiished or altered by the parliament of Canada, or the ISgisTature of the province, according as either one possesses) (^Hejgower. (c) (c) Sec. 129. ■II 152 GOVERNMENT IN CANADA. DEPAUTMKNTAL ADMINISTIIATION AT TOOONTO. The following are the departments in Ontario and a summary of the work done in them. ATTORNEY-GENERAL 8 DEPAUTMKNT. There are no statutory regulations as to the duties of the attorney-general of Ontario, or the work performed in his office or department. He is the legal adviser of the crown, and of the execu- tive council or ministry, and also of the departments of the ex,ecutive government of the province ; and all legislation for the province is conducted in his name and under his responsihility. He makes all appointments connected with the administration of justice, such as police and stipen- diary magistrates, justices of the peace, county attorneys, sheriffs, and other officers of the courts, and he advises them in all matters of such administration. Hence he has to deal with cases of hail and its forfeiture, the discharge of prisoners on a habeas corpus, or the quashing of convic- tions. He considers applications for writs of error, for leave to file petitions of right, to tile informations, to allow criminals as Queen's evidence, and other matters in con- nection with the administration of puhlic justice. He is the proper person to complain of the violation of public rights. He appears on behalf of the crown in civil and criminal cases ; and he is the proper officer to enforce criminal laws by prosecution in the Queen's name in courts of justice in the province. The attorney-general of this province is the officer of the crown who must be considered to be present in the courts of the province to assert the rights of the crown and those who are under its protection, {d) (d) Mr. Justice Strong;; (as Vice-Cliancellor) in Attorney -Getieml v. Niagara Falln llridi/e Compaiiij, '20 Cliy. M. THE PROVINCES — ONTARIO. 153 His duties are somewhat analogous to those of the minister of justice at Ottawa ; and he has all the rights, powers, duties, functions, responsibilities and authorities which, up to 18()7, were vested in or imposed on the attorno\'-geueral or solicitor-general of tlu; province of Canada by virtue of any law, statute, or ordnance of Upper Canada or Canada, and not repugnant to the Confederation Act of that year. This also applies to the other executive officers in regard to their respective departments as men- tioned hereafter, both in Ontario and Quebec. 2. THE SKCUETAUY AN'D RKOISTUAU OF THE PROVINCE 01' ONTARIO. This office is under the control of the provincial secre- tary, but no express statute has constituted it a depart- ment, (e) Reports on the asylums, prisons and public charities of the province are returned to this department every year ; reports on the common gaols, prisons and reformatories ; the Ontario institution for the education and instruction of the deaf and dumb, at Belleville, and a similar institution at Brantford for the blind; the hospitals of Ontario; houses of refuge, orphan and magdalene asylums ; also reports ri.iating to tavern and shop licenses. The inspector of division courts reports to this depart- ment, and it is the provincial department of immigration. The bonds and securities required to be given by public officers are registered in the registrar's department, and returns made also in regard to them. The other matters upon which returns are made are the following : i ((') Sees. 184 and lUo continue the office %vliicli succeeds to that of the secretary and registrar of the province of Canada. ! 164 GOVERNMENT IN CANADA. The state cf the fee fund, the expenses of the adminis- tration of justice, the number of marriages, births and deaths, copies of all returns from the clerks of the various municipalities as to the population, real property, assess- ments, income and expenditure, liabiliiies, assets and pro- perty of their respective corporations. A statement of the indebtedness of eacli municipal corporation at the close of each year is made to tlie Lieutenant-Governor through the provincial secretary ; and a return also made to him from the sworn returns of the clerks of each municipality of the number of resident ratepayers of the different counties and cities, and such towns as are separated from counties. Commissions under the great and prissy seals are pre- pared and issued by this department ; warrants for the removal to the asylums from the county gaols of persons found insane and dangerous ; appointments to office gazetted ; proclamations, letters patent, notarial certifi- cates, commissions and marriage licenses issued ; and returns of patented lands made to the different county registrars of the province. 3. THK PROVINCIAL TREASURER'S DEI>ARTMKNT. (/) All public moneys, from whatever source of revenue derived, and all moneys forming part of special funds administered by the provincial government, are paid in to the credit of the provincial treasurer. These revenues form what is called the consolidated revenue fund of Ontario ; and it is on the strength of the supplies of this fund that the Lieutenant-Governor in council can invest in Dominion securities or debentures whenever any surplus is not re- quired for the public use of the province. (/) This office is continned by the 134 and liJo sectionH of the Act succeediiif^ apparently to the minister of finance of the former ^jovern- ment of Canada. n THE PROVIN'CES — ONTARIO. 155 The treasurer of the i)rovince lays every year before the house a financial statement as to the assets and liabilities of the province. He reports to the Lieutenant-Governor from the sworn returns of the clerk of each municipality (except county clerks) as to the number of resident rate- payers and their indebtedness to the municipal loan fund. He also reports as to tlie taxable property and the resources and liabilities of each municipal corporation. The executive government has charge of all fees and charges under the Act relating to law stamps ; and the pro- vincial treasurer procures the necessary stamps under the Act, keeps an account of all stamps, sells the same, and allows or may allow a commission of five per cent, to those taking more than five dollars' worth. The treasurer has also certain statutory duties in refer- ence to the land tax in Algoma. The moneys arising from the clergy reserves form a separate fund called " The Ontario Municipalities' Fund :" and Jtre paid into the provincial treasurer's office, and paid out by him under orders in council, or under the Act re- specting clergy reserves, to the different municipalities in Ontario, in proportion to their resident rate-payers, pur- suant to the returns already referred to. The provincial board of health is a branch of this department, as is also the department of agriculture and arts. 5. THE DEPARTMENT OF AGRICULTURE. (^.L V>A.U> ^ 1 1 [ : ! i i; «»i^»>*^: 1 15G GOVERNMENT IN CANADA. \ .\ :v\ The bureau of agriculture and arts, now called the bureau of industries, is attached to this department ; and the Lieutenant-Governor in coimcil appoints a secretary, known as the secretary of the bureau of agriculture and arts, who conducts the correspondence of the department and such other business as may be assigned him b}' the commissioner. The commissioner institutes enquiries and collects useful facts and statistics relating to the agricultural, mechanical and manufacturing interests of the province, and adopts measures for disseminating or publishing the same in such manner and form as he finds best adapted to promote improvement within the province, and to encourage immi- gration from other countries. He may appoint persons to inspect the books and accounts of any society receiving government aid, and may examine witnesses and have documents produced in reference thereto. The societies in connection with the department are : the agricultural and arts association, all agricultural and horticultural societies, the fruit growers' association of Ontario, the entoiaological society of Ontario, the poultry association, t)ie Ontario creameries' association, the bee- keepers' association, and the dairymen's associations of Ontario. . These make returns to this department' and supply information on questions submitted to them. The agricultural college and model farm at Guelph, and a library and museum in connection with it, are under the control of the commissioner ; and a veterniary college is established under prescribed rules of the council of the agri- cultural and arts association, which also holds an annual provincial fair or exhibition. The commissioner reports to the house of assembh', within 30 days after the opening of the session, giving a detailed account of the proceedings in his department. ^ c> 0(vx.^. THE PROVINCES ONTARIO. 157 4. THE DEPARTMENT OF CROWN LANDS, (/i) The commissioner of crown lands presides over this de- partment, and has the management and sale of the public lands and forests belonging to the province. An assistant commissionor, appointed by the Lieutenant- Governor in council, has charge of the department in the absence of the commissioner, or when a vacancy occurs in that office ; and he performs such duties in the department as may be assigned to him by the Lieutenant-Governor in couiicil, or the commissioner of crown lands. Other officers may also be appointed in the same manner as the assistant commissioner. The deijartment and office of the surveyor-general are now transferred to this department ; and the commissioner exercises and performs such powers and duties as were assigned to or vested in that officer before the 17th March, 1845. The commissioner of crown lands reports to the legisla- tive assembly, within ten days after the meeting of the house, the proceedings, transactions and affairs of his office, during the preceding year — sales of lands, revenues of woods and forests, reports of surveys, colonization roads, free grants, etc. The public lands of the province are under the control of this department. These are the crown lands, school lands, clergy lands, and mineral lands. The Lieutenant- Governor in council fixes the price, the terms and condi- tions of sale, and of settlement and payment, of the pul)lie lands ; and the sales and appropriations of water lots, licenses of occupation, and all assignments and the issue and cancellation of patents, are issued, registered and (/() This i.s ii (k'))uitineiit by proviiiciiil Btiittite, but is vecogni/xd iiiid continued by tiie Jl. N. A. Act, stcs. 18-4, liJo. ii 1; Ml i '.) 158 GOVERNMENT IN CANADA. effected by the commissioner, with other departmental business. He, or his assistant, may issue commissions, and may authorize those in the employ of the department to take affidavits in reference to the business of the depart- ment, or regarding which it is interested. He causes lists of patented lands to be forwarded to the different treasurers in the province in the month of February in each year ; and also a list of lands leased or licensed, or located as free grant. He advertises, if he thinks fit, lists of public lands for sale, and furnishes such other information as may be desirable. If a patent has issued to the wrong person through mis- take in the department or has a wrong description of the land or contains any clerical error or misnomer, the com- missioner, if there is no adverse claim, may direct the de- fective patent to be cancelled and a correct one of the same date to be issued. If a patent has issued through fraud or in error or improvidence the complaining party may insti- tute a suit in the high court of justice and have the patent declared void. The commissioner may also cancel any sale, grant, location, lease or license if there has been fraud or imposition or violation of any of the conditions of sale, etc. by the purchaser or his assignee. As to the free grant lands, the Lieutenant-Governor in council almost exclusively deals with these. The Act relat- ing to free grants and homesteads does not interfere with the power of the commissioner to grant timber licenses on these lands. The free grant territory lies within the districts of Algoma and Nipissing, and certain lands lying between the Ottawa river and the Georgian Bay. (See Act of 1886 as to tlie Rainy river district.) The department looks alter all trespasses on public lands, and has very full statutory instructions in regard thereto. It deals with the mining lands of the province, 8ul»ject to ■ !■! THE PROVINCES — ONTARIO. 159 such orders in council as may be made in reference to them and under the provisions of the General Mining Act. This department has charge of crown, municipal and mineral surveys, and contracts and repairs on colonization roads. By an Act called the Ontario Fisheries Act 1885, the commissioner of crown lands may grant and issue fishery leases and tishing licenses under certain conditions, regu- lations and restrictions, but not over any lands or waters where an exclusive right of fishing already exists by law. The leases are for not more than five years and only grant- ed to the highest bidder after public competition. The Act applies to such of the waters of any lake, river, stream or ■water-course wholly or partly within said province, as flow over or cover any of its crown or public lands or crown domain. (?) A recent order in council dated 5th May, 1887, has issued under this Act. . When a claim is made by any person as heir, devisee, or assignee of the nominee of the crown, to the right to a patent, special commissioners are appointed to decide there- on. These form wliat is called the heir and devisee commission, which is one of the courts of law in Ontario. But now under an order in council matters of this sort are reported on by the law-clerk of the department to the com- missioner who decides tliem without reference to the com- missioners. G. THK DKPARTMHNT OF PUniJC WOlUvK. (/) This department is presided over by the commissioner of public works, appointed by commission under tbe great seal. (/) See the Queen v. liohertnon, Supreme Court App-als, pa^e i'>2. (j) This office is also ci'eated a clepartmeut by provincial statute. See ante, agriculture. ffid I nri; 100 GOVERNMENT IN CANADA. The other officers, who are appointed by the Lieutenant- Governor, are an architect, an engineer, a secretary, a hiw- clerk, an accountant, and such others, whether their ap- pointment be temporary or otherwise, as may be necessary. The duties of the architect, engineer, secretary, law-clerk, and accountant are laid down by statute. The commissioner has management of the department ; and it is liis duty to oversee and direct the other officers and servants ; and he may have other duties also assigned him by the Lieutenant-Governor in council. The department has control of all land, streams, water- courses, and property, real and personal, heretofore or hereafter acquired for the use of public works ; all canals, locks, dams, hydraulic works, harbour piers, and other works for improving the navigation of any water; all slides, dams, piers, booms, and other works for facilitating the transmission of timber; all hydraulic powers created by the construction of any public works ; all roads and bridges ; all public buildings; all railways and rolling stock thereon ; all vessels, dredges, scows, tools, implements and machinery for the improvement of navigation ; all drains and drainage works ; and all property heretofore or here- after acquired, constructed, repaired, maintained, or im- proved, at the expense of the province, and not under the control of the Dominion government. These are declared to be vested 'n Her Majesty, and under the control of this department. Any other property, and any of these works, roads, etc., purchased or constructed at the public expense, may, by proclamation of the Lieutenant-Governor, be vested in Her Majesty, and subject to this depavtment. Any property not required for the use of the public works may be leased or sold, under the authority of the Lieuten- ] ] THE PROVINCES — ONTARIO. 1(51 i ant-Governor ; and for the purposes of the department the commissioner may acquire and take possession of any land or real estate, streams, waters, water-courses, fences and walls, for specified purposes and under certain restrictions. The commissioner has also the necessary powers as to drainage of land, and the construction of slides in mill-dams or embankments ; and he acts under the " Ontario Drainage Act " in reference to drains within municipalities, on the request of their councils, as provided by that Act. In case any township desire to undertake such work, after the plans and estimates are submitted to the department, he can report thereon as to the investment of a portion of the public money in debentures for the construction of such drainage for the benefit of such township. All expenses connected with the provisions for preventing riots near public works are paid through the commissioner under the statute respecting riots near public works. The sale of liquors near public works is prohibited by stringent provisions. The commissioner of public works must within twenty- one days after the commencement of each session, make and submit to the Lieutenant-Governor an annual report on all the works under his control, shewing the state of each work, and the receipts and expenditure thereon, with such further information as may enable the assembly to judge of the working of the department. His report includes the expenses and repairs of the government house, parliament b. tidings, asylums, refor- matories, prisons, institutes for the blind, deaf and dumb, the agricultural college, the educational department, schools under the government control, and Osgoode Hall ; also the inspection, repair and construction of lock-ups, goals, court rooms and registry offices in the districts of o's.G.c. 12 1 162 GOVKRNMENT IN CANADA. ' Algoma, Muskoka, NipisBing and other unorganized dis- tricts. The engineer of the department reports on the slides, dams, crib works, piers, bridges, dredging, locks and other such matters as come within this department. The department is charged with the duty of seeing that the conditions on which aid has been granted to railways out of the provincial treasury are complied with before the funds are paid over and has a similar duty in respect to drainage works. Where it is necessary for a provincial railway in Ontario to cross a dominion railway the company desiring to effect such crossing must procure the approval of the commis- sioner of public works as well as the approval of the railway committee of the privy council of Canada, and the railway companies cannot waive the provision by agreement, {k) 7. DEPARTMENT OF EDUCATION, (l) This department consists of the executive council of the province, or a committee out of that number. One of the executive council is nominated to the office of minister of education by the Lieutenant-Governor. The minister of education may hold any other office in the executive council, and he may be a member of the leg- islative assembly and sit and vote therein. • This department supersedes the council of public instruc- tion, which was suspended on the 10th of February, 1876 ; and all the duties of that council are transferred to this department, with a minister instead of the chief superin- tendent of education at its head. :^- (A) Credit Valley Ry. v. the G. W. Ry., 25 Gr. 507. (/) This department is created by statute of the province, amongst the offices mentioned in B. N. A. Act, sec. 134, 135. It is not THE PROVINCES — ONTARIO. 168 It superintends the studies and regulations of high schools, the organization, government and discipline of public schools and the classification of schools and teachers. It provides for the efficiency of the normal and public schools, examines and grants certificates to teachers, de- fines the qualifications of inspectors and examiners, and has the approval of all text, prize and library books. The statutory duties of the minister include the distribution of the legislative grants among the different public and high schools, and the general superintendence of normal schools and the conduct of teachers. The Acts relating to public and high schools give him extensive powers in the manage- ment of this department. Schools coming within the range of the Separate Schools Act are subject to inspection by the minister of education, and also to such regulations as may be imposed on them from time to time by the education department. The minister may also certify regarding any proposed industrial school in cities, that it is a fit and proper one for the reception of children and the school shall thereupon be deemed a certified industrial school. The police magistrate may send there such children as apparently are under 14 years of age if they are found begging, or receiving alms, ov are found wandering without any visible means of support, and having no home, or guardian, or any lawful business, or being destitute, either as an orphan, or one whose parent is imprisoned, or whose parents are so vicious that thej' are under no proper con- trol or education ; or if such children are so unmanageable that the parents or guardians cannot control them. The rules of such school are to be approved of by the minister. The minister o*' education has power to decide upon all disputes and complaints laid before him, the settlement of 1 *ii 164 oovern:\ient in canaiu. which is not otherwise provided for by law, and upon all appeals made to hira from the decision of any ir specter or other school officer. In cases in the division court, in which school inspectors, trustees, teachers or other persons under these Acts are parties, an appeal is allowed to the superior courts of law in Ontario. This exceptional proceeding; is for the purpose of securing uniformity of decision in school matters. The minister has power also to submit a case to any judge of these courts for the opinion or decision of the court therein. The mintster of education is, ex officio, a member of the senate of the University of Toronto, which senate has the management of and superintendency over the affairs and business of the university. The Lieutenant-Governor appoints the president and all other officers, and approves of the statutes of the senate. The Ontario society of artists, and the mechanics insti- tutes are by an Act of 1886 transferred to the educational department. The minister of education reports every year to the Lieutenant-Governor in council, up to the 31st of December, the actual state of the normal, model, high and public schools, and collegiate institutes, showing the expenditure and sources of revenue, with such statements and sugges- tions, in reference to the improvement of the schools and the school law, and promoting education, as he may deem useful and expedient. GOVERNMENT IN CANADA. 165 CHAPTER XV. ,/ THE PROVINCE OF QUEHKC AND OTHER PROVINCES — THE TERRITORIES. Quebec, two houses, members, otherwise similar to Ontario, Judf/es — Adjustment between the old Canadas — Xora Scotia avJ New Brunswick unchanrjcd — Manitoba created — British Columbia — Prince Edward Island — The North West 'J erritories — Keewatin. QUEBEC. The legislature of Quebec consists of a Lieutenant-Gover- nor and two houses styled the legislative council of Quebec and the legislative assembly of Quebec, (a) The legislative council is composed of 24 members, who were appointed by the first Lieutenant-Governor of the province in the Queen's name by instrument under the great seal of Quebec. These hold office during life, unless the legislature otherwise provides, subject to the Act of 1867. Their qualifications are the same as those of the Quebec senators, which differ from those of other senators in one respect — that is in this way : Quebec was divided into 24 electoral divisions before confederation ; and each of these sent a senator to Ottawa, and a legislative coun- cillor to Quebec, both senators and councillors residing or having their real property qualification in the division they represented. The regulations as to vacancies in the place (a) The constitution of the province of Quebec differs from that of Ontario only in tlie addition of a second house in the former province and in the different numbers of members in the assemblies. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ffii Ki I.I 1.25 ^ % om y J .^ Photographic Sciences Corporation *. as WIS1 MAIN SIMIT WflSTH,N.Y. MSIO (7161 •72.4503 4S^. 4^ % 166 OOVKRMMENT IN CANADA. of a legislative councillor are the aamo as apply to senators ; and vacant seats are filled by the Lieutenant-Qovernor in the same way as the first councillors were appointed. Questions as to qualifications and vacancies in the legis- lative council are beard and determined by that body. The Lieutenant-Governor appoints their speaker, and may re- move him and appoint another. Ten members, including the speaker, are a sufficient number to constitute a meeting for the exercise of its poweri;. The speaker has a vote ; and when the votes are equal, the motion is declared in the negative, (b) Every legislative councillor, berore taking his seat, must take and subscribe before the Governor-General, or some one authorized by him, the oath of allegiance, and the declaration of qualification, prescribed for senators as well, and which has already been referred to under the chapter on the senate, (r) The legislative assembly of Quebec is composed of 65 members, until altered by the legislature of the province ; and even then the second and third readings of a bill for altering the limits of certain electoral divisions cannot be presented to tue Lieutenant-Governor for his assent unless with the concurrence of the majority of the members representing all these divisions, und an address presented by the assembly stating that the bill has been so passed. Those electoral districts of Quebec, specially fixed, are the counties of Pontiac, Ottawa, Argenteuil, Huntington, Mis- sisquoi, Beauce, Shefford, Stanstead, Compton, Wolfe and Bichmond, Megantic, and the town of Sherbrooke. (d) The seat ot government is at Quebec ; and the executive council is composed of the same number of ministers (6) Sera. Ti vnd 80. (c) Hec. 138. «> 8«c. 80. THB PROVINOB OF QUBBBC, ITO. 167 as in Ontario, except that in Quebec the speaker of the legislative council and the eolicitor-general are included in the executive. In Ontario there are no offices for such persons, {e) All the other provisions in the Act of 1867 relating to the constitution and legislative powers of Quebec are the same as have been set out in regard to Ontario. The judges of the Quebec courts must be selected from the bar of that province ; but when the laws relating to property and civil rights in Ontario, Nova Scotia and New Brunswick, are made uniform, the Governor-General may appoint judges for these provinces from any one of them. (/) The powers, authorities and functions of the Lieutenant- Governors are the same in both provinces, except possibly in so far as the legislatures of Upper and Lower Canada, prior to 1840, may have vested their re£i)ective Governors or Lieutenant-Governors with different powers, authorities and functions. The legislature of Lower Canada was sus- pended at one time by Imperial Act, a circumstance which did not happen to Upper Canada ; but it is unlikely that this caused any very material difference in the statutory powers of their Governors. The Lieutenant-Governor of Quebec may, b}' proclama- tion, constitute townships in those parts of his province not already constituted, and fix the metes and bounds thereof, {g) The executive government, as was seen, is carried on by the same number of members as in Ontario, except that {e) Sec. 134. (f) SecB. 97 and 98. Sec. 91 provides for the continf^ency of uniform laws, but it does not extend to Quebec. {g) Sec. 144. 168 OOTERNMENT IN CANADA. tbey hiive no minister of education ; but they have addi- tional officers in the persons of the solicitor general and speaker of the legislative council. The office of agriculture and public works is under one miniHtur, and there ha» been a commissioner of railwuvn, but the oltice is now abolished. (/<) The officers in charge of the departments in Quebec succeed to all powers, duties, functions, etc., of those officers in the government of the late province of Canada, or of Lower Canada, in the same way as the departmental officers in Ontario do. The departmental offices in the two provinces agree in their main points, and are different chiefly in matters of detail ; and it is not necessary to enter into a separate consideration of them as regards the pro- vince of Quebec. The division and adjustment of the debts, credits, lia- bilities, properties and assets of Upper and Lower Canada was referred at confederation to three arbitrators, one chosen by each government of the provinces and one by the government of Canada ; and the Governor-General in council may order a division of the records, books and docu- ments of the late province of Canada between the present provinces of Ontario and Quebec, (t) NOVA SCOTIA AND NEW BRUNSWICK. The Act of 18G7 uniting the provinces did not alter the legislatures of either Nova Scotia or New Brunswick. Sub- ject to the provisions of this Act, they continued as they wert before that date, and remain so until altered under the authority of the Act. {j} The same applies to the {h) Quebec Btatntea, 1886, cap. IV. (i) Bees. 14'2-143. (j) Sec. 88. THE PROVINCE OF QUEBEC, ETC. 169 executive power of these provinces, which was also un- changed, {k) They were restricted to legislating only on the prescribed class of subjects assigned to the provinces by such machinery as they always possessed. The mode of appointing the governora was changed — it thereafter rested with the Governor-Genoral of Canada. Nothing is Kiiid as to tiie powers, authorities and functions of any Lieutenant-Governors, except those of Ontario and Quebec. Ah of them recommend to their respective houses by mes- sage, appropriations, tax bills and all money votes. They can assent to bills, disallow them, or reserve them for the signification of the Governor-General's pleasure. These provinces have the exceptional privilege of ap- pointing judges to their own courts of probate. (/) Nova Scotia and New Brunswick, like Quebec, have two houses — a legislative council and a legislative assembly. The house of assembly in Nova Scotia is composed of 38 members, and in New Brunswick of 41 members — the legislative councils of 16 and 18 respectively, (m) V A'' (A) Sec. M. (I) Sec. {Hi. (w) In 187!>, a measure to do away with the upper house in Nova Scotiii pasHed the assembly, but was rejected in the legislative council. The assembly then presented an addrcHs to the Queen, asking; that the B. N. A. Act be amended so that new councillors mi^ht be added to carry the measure in the other house. The le^'islutive councillors presentetl a counter address, and the executive council a memorandum showing its approval of the action of the assembly. Tho colonial secretary replieil ('i">th June, lS7!t), declininjL, to advise any action in tho matter. C'on- sideraule correspondence is to be found in the years lw><0 HI on this cjuestion. The secretary of stateof C-uuida advised tlie local government tinit a full opiKjrtunity had not arrived in order to re8teratiun of tlie other maritime provinces in the hojie of freeing themselves from their legislative conncils. The matter was strongly urged Insfore the Dominion govonmient. but nothing came of it. In lHH'2, a bill in the aKsembly in Nova hcotia to abolish the council was, on its second reacling, defeated by 12 to i». 170 ^OQVBRNHENT IN CANADA. ./ \ The execativib council in Nova Scotia is at present com- posed of o c w a members, of which only three have port- folios — that is the provincial secretary, the attorney-general and the commissioner of public works and mines. In New Brunswick the number of the executive council is seven also ; but here they have an attorney-general, a provincial secretary and receiver-general, a chief com- missioner of the public works, and a solicitor-general. MANITOBA. By an Imperial Act passed in 1871, the parliament of Canada may from time to time establish new provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may at the time of such establishment make provision for the constitution and administration of any such province and for the passing of laws for the peace, order and good government of such province and for its representation in the said parliament, (u) This Act was passed to confirm the Dominion Act, establishing the pro- vince of Manitoba. This province and the territories hereafter mentioned were part of Rupert's Land and the North-West Territory before they were admitted into the union in 1870. This was affected by proclamation pursuant to order in council at Ottawa. The boundary of Manitoba was defined then, but has been altered since, in 1877, by the parliament of C inada, with the consent of the legislature of Manitoba, (o) All the provisions of the British North America Act which apply to the whole of the provinces are applicable to Mani- (n) 34 and 35 Vic. cap. 28 ; see sec. U(i B. N. A. Act. (o) The prewnt b sundariee are sot out in R. B. C chiip. 47. The eastern boundary is a line due north from the point where the western boundary of Ontario intersects the international boundary with the U. 8. THB PROVINCE OF QUEBEC, ETC. 171 toba as if it had been one of the provinces originally united by that Act. The Act admitting this province defines the qualifieation nf voters — the duration of the assembly to be four years with a yearly session, as in Ontario, and the seat of government to be at Fort Garry, or withLn a mile of that place. Fort Garry is now the city of Winnipeg. The constitution originally given to Manitoba provided for a Lieutenant-Governor and two houses, as in Quebec ; but in 1876 the legislative council was abolished by the local legislature. The legislative assembly, which, with the Lieutenant- Governor, now forms the legislature, is composed of thirty- five members, representing the districts into which the province is divided, (p) The executive council is composed of such persons ami under such designations as shall seem fit to the Lieuten- ant-Governor. It at present consists of five persons— a provincial treasurer, a provincial secretary, minister of public works, the attorney-general and a minister of agricul- ture, statistics and health. The provisions regarding the speaker originally, and in vacancies, the duties of speaker, the absence of speaker, and the mode of voting, are the same as in the house of commons at Ottawa. Canada assumes and defrays a large portion of the expenses of the province. Almost every year since its admission a number of Acts have been passed in the par- liament of Canada applying to Manitoba ; but except as to the limits of that province (and only then by consent of the Manitoba legislature,) the parliament of Canada has no power to alter the provisions of the Act originally estab- lishing that province. ( vi^ 170 OOVKRNMKNT IN CANADA. CHAPTER XVI. THE JinUATrilE. Df'fi'ctH of icritlen ionHtitiitioiin, imperfect ih'scription oj hinuuhirin to leifiilatire ponem — Position of the eoitrts — Difleveut nourees of laivs — The judicial power in the I'nited States, in Canada, /similar duties but disnimilar orirn- monts were endowed with large legislative powers. All the laws were to be interpreted by the court-, but in- terpreted so as not to conflict with the imperial laws, which must be executed before all others. Our courts, there- fore, are bound to determine what laws are in force. A Canadian law which is repugnant to any imperial enact- ment nuist be declared void by the courts — a higher than Canadian power has said that it is no law n.t all. Again, the Dominion parliament may usurp provincial rights, or a province assume to deal with dominion matters •, the courts still sitting under the constitution, the imperial enactment must refuse to accept such attempted legislation as valid law. The courts in Canada are still the Queen's courts and bound to interpret such law as is in force, and equally bound to declare that the Acts of any of our legislatures, when transcending their limits, are unconstitutional and void. The courts, so long as they are permitted to exist, are not the creatures of either the provincial or federal legis- («) Marbury v. Madinoti, 1 Craneh 177. o's.o.c. 13 178 GOVERNMENT IN CANADA. lature ; they are of courso subordinate to constitutional legislation, but they are co-ordinate and in effect superior to that which is not constitutional. In Great Britain the legislature is the chief power in the land. There being no written constitutioii, no plain speak- ing and indexible statute of paramount law, under, which the government of the country is carried on, tjie constitu- tionality of its acts cannot be questioned by the courts in the same way as in those countries wherein there is a government with divided powers. The acts of the legis- lature form the law, and these acts its courts must construe without questioning their validity or testing them with the constitution. The British people speak in each legislative enactment through one parliament with plenary power; and their latest utterance is the guide for their courts, which are always subordinate to t'.iis legislature, and exist solely by its permission. In our federal government it is the duty ' f the judiciary, as the appropriate means of securing tc> tiie people safety from legislative aggression, to annul ail legislative action without the pale of the written constitution. In matters of conflict between the powers of the local and central legislatures, the position of the judiciary is not that of a subo'-dinate, but of a co-ordinate branch of tlie govern- ment , and it must declare every act of the legislature which is repugnant to the constitution to be abs. lutely void. This power is not confined to any particular court, but extends to all courts both dominion and provincial. The courts are the custodians of the constitution. These courts are also bound to declare what laws are in force in the Dominion, whether they are enacted by the parliament of the Dominion or by the local legislatures. The provincial courts are no mere local courts for the isa THE JUDICATURK. 171) administration of the laws passed by the legislatures of the provinces in which they are organized. The union of the provinces in 1807 did not in itself effect any alteration in these courts in this respect. The powers of the courts are ones to be exercised with the most de- liberate cnution. Unless it is clear that the legislature has transcended its authority, the courts will net interfere. No court can pronounce any Act of the legislature void for any supposed inequality or injustice in its operation, provided it be on a subject matter purely within the scope of legislative authority, and the provisions of the law in general. This being, it is apprehended, the position of our judici- ary in Canuda, the laws to be considered necessarily refer to three sources — the imperial, the dominion and the pro- vincial. What is known as the common or the unwritten law of England was largely imported into all parts of the Do- minion in virtue not only of British subjects bringing part of this law with them of necessity, but also by means of its express introduction by statute. The introduction of Eng- lish law in these various ways brouglit with it the dtcisiona of the courts in Great Britain in reference to the same ; and these decisions or precedents are another source of laws. The introduction of the criminal law of England to the old province of Quebec in 1774 introduced all these sources of law at once. In the province of Ontario a few references will show how extensively the laws of England nave been adopted here. In 1702 all the amendments made in England to tlie criminal law since 1774 were transferred to Upper Canada ; and in the same year the law as to property, civil rights, , 180 GOVERNMENT IN CANADA. and trial by jury as it then stood, ^vas declared to be the law for the province. On the establishment of the Court of Chancery, the law of England, as it stood in 1837, regarding the English Court of Chancery was, unless other- wise provided, to be in force here ; and the rights, incidents and privileges of the courts of common law in England in 1851) were transferred to our Superior Courts of law. In British Columbia the criminal law of England as it stood on th(! null of November, 1858, subject to local legislation, is the criminal law of that province. The local legislatures may delegate to municipal or other corporation.s the power of making laws. This is effected by the by-laws of these bodies, which are as much the law of the land as any legislative Acts ; and, as another ex- ample, may be mentioned the powers of the Governors in Council under statute regulations to promulgate orders having the force of laws. When it is remembered that all the different sources of the laws, their application and their meaning, have to be considered and determined by the courts, it will be seen how important is the judicial department of government, and how imperious and absolute is the necessity of securing its independence, (n) It bears the whole stress of the constitution. Mr. Duer, writing on the constitution of the United States, says : "Whoever attentively considers the diflferent departments of power, must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least danger- ous to the political rights secured by the constitution, because it will have the least capacity to invade or injure {a\ In the United States, tlie jnd^^es of the Bupreme iind inferior courts hold their ofHces during good behavior. mmmmm :hb judicature. 181 them. The executive power not only dispenses the honors, but wields the sword of the community. The legislature not only holds the public purse, but prescribes the rules by which the rights and duties of every citizen are to be en- joyed and regulated. But the judicial power has no com- mand over the sword or the purse ; — no direction, either of the strength or the wealth of the society and can take no active resolution whatsoever. It has been truly and em- phatically said to have ' neither force nor will, but merely judgment ; " (h) and even for the practical exercise of this faculty, it must depend on the protection and support of the executive arm." There is only one section in the B. N. A. Act that refers to any court not already in existence in the provinces. The lOlst section is as follows : The parliament of Canada may notwithstanding anything in this Act, from time to time, provide for the constitution, maintenance and organization of a general court of appeal for Canada and for the establishment of any additional courts for the better administration of the laws of Canada. The creation of the court of appeal does not in itself give to that court any power not possessed by the courts appeal- I'd from. It would have no inherent jurisdiction, it would simply settle more authoritatively quest'ons of law from the courts in the provinces. As a court of appeal it has no more power than is possessed by the provincial courts already in existence. Under Ih.e last part of section 101, (b) The Federalist' No. 78. When the Supreme Court cannot count uiran tlie support of the e.\ecutive, its judgments may be without force in the United btates, tliough this cuuld not arise under our government. There the executive force being in tlie President, and being a real force, the latter may if so minded refuse to carry out the law. When C. .1. Marshall had delivered a judgment obnoxious to President Jefiferson. the latter is reported to have said, in republican simplicity of language, 'slohu Marshall has delivered his judgment, let him now execute it — if he can." L 182 GOVERNMENT IN CANADA. it could be invested with new powers and endowed with original as well as appellate jurisdiction. But if this sec- tion had been omitted from the Act, the other courts would still have the same position they now occupy. They derive no assistance and receive no new powers from the Act. They are simply made subject to an appeal court which it was hoped would take the place of an appeal to England. It does not take away any of their rights and duties and does not divert the judicial power from the Crown. The judicature in Canada as in England points to the Queen as its source. There is no change in that respect under our federal system, and the principles of the British constitu- tion have been adhered to so far as the judicature is con- cerned. In the American union the position of the judicature ia very different. By the 1st section of Article III. The judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behaviour ; and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office. By the United States constitution , the j udicial i)ower is vest- ed in the supreme court just as much as the executive power is vested in the president or the legislative power is vested in the congress. Under this state of things there is no common source of pcwer such as is the first estate under the British constitution. The three divisions of govern- ment are three coordinate powers — one making the laws, another interpreting them and another executing them. These powers are not only co-ordinate but they are dis- tinctly separated in theory and in practice. In the United Kingdom they are united in theory and in i^ractice. The L THE Jl'DICATUnE. 183 Queen acting under the advice of a prime minister is in the first instance, the legislative, the executive and the judicial power. It is not to be imagined that in the judicial department the prime minister does more than create the courts and supply them with judges and everything needful in that respect : the distinction between the two forms of government is that in the United States the judicial power is independent of the congress and the president ; while in Great Britain the judicial powers and all other powers are in the control of the executive. In the Canadian union the theory and practice follow the principles of the British constitution. The supreme court in this country has no position at all analogous to that of the United States supreme court. Here it is a court of appeal for the provinces. It has no more power to declare an act of one of the legislatures unconstitutional than has the lowest court in the land. It is co-ordinate with the legislatures just as the other courts of Her Majesty are co-ordinate. There is no judicial power vested in it or in them, they are all equally under the constitution and bound to construe all legislative and executive Acts in accordance with that supreme law. There is therefore no analogy between the origin of the judicial power in Canada and in the United States : but the exercise of judicial power in Canada is analogous to its exercise in the American union in deciding whether the legislatures have kept within their proper limits. In Canada that means in effect whether the im- perial Act of 18(57 is not transgressed by any statute of the Canadian legislatures. It is not the supreme court or the authority to create courts that permits when necessary such legislation to be declared void, but it is the fact that the same power that decreed the constitution, created the courts ; and their duty is to see that no Canadian statute is at variance with that standard of government and of laws — the Confederation Act. ill t.u 184 OOVERNMENI IN CANADA. CHAPTER XVII. THE COUnTS. The judicial committee of the privy council, composition, juris ■ diction, discretion as to appeals, procedure, judgment— The supreme court of Canada, jurisdiction, court of last resort, sittings, practice and procedure— The exchequer court of Canada, new constitution, jurisdiction, to follow English jwactice, sittings, writs run through Canada- The maritime court of Ontario, jurisdiction, judge, jtractice. THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. This court is the last resort of a colonial British subject in appeal from the laws of his own colony. The privy council in England is composeu of a lavge number of distinguished persons. Most of tiie principal judges, the speaker of the house of commons, the Queen's ambassadors and those formerly holding offices in the min- istry, besides the archbishops and some bishops, are mem- bers of this body. One distinguished committee forms the cabinet ; another, with which only we have to deal here, formsajudicialcomraittee.thefunctionsof which are todecide all matters that can judicially come by appeal or by com- plaint in the nature of appeal before the Queen, or the Queen in council. On hearing the case argued this com- mittee reports to the Queen in council its recommendation for her decision. ■ L THE COURTS. isr> This court is composed of such privy councillors as are or were its presidents, judges of the chief courts of equity and common law, the judges of the admiralty, of the pre- rogative court of Canterbury, bishops and archbishops, two retired East Indian or Colonial Judges, and two others, (a) The committee has the ordinary powers of the superior courts in England as to witnesses, juries, process, etc. ; and cases may be heard by three of its members and the lord president. The court holds throe sittings in the year, generally in February, June and November, and lasting about six weeks. The jurisdiction of the judicial committee is divided into two heads — one comprising appeals allowed by right, and the other those cases where leave to appeal is iirst of all necessary. The crown may, in Acts of its colonial legisla- tures, shut out the right to appeal — it may abrogate its prerogative. Where the right of the crown is not reserved, or where the fair construction of the colonial Act is that no appeal will lie to the privy council, then the judgment of a colonial court under the provisions of such an Act, assented to by the crown, is final. The crown, by assenting, takes away the right of appeal. The Quebec controverted elections Act of 1875, states that the judgment of the court *' shall not be susceptible of appeal;" and an appeal to the privy council was refused in a case coming under the Act. (b) The Dominion Act establishing the supreme court at Ottawa in 1875, made its judgments final without appeal, saving any right which Her Majesty may exercise in virtue of the royal prerogative. (a) Cox's British Conitnonwealth. (b) Theberije v. Landry, 2 App. Cas. ir.2. I, I m m 1 180 OOVBRNMBNT IM CANADA. Lord Cairns, in constructing the section of the supreme court Act containing these words, laid down the rule that the judicial committee of the privy council would have no hesitation in a proper case of advising Her Majesty to per- mit an appeal from the judgment of this court. The dis- cretion of fio allowing an appeal to be heard would not be exercised where the amount involved was small, and where tbc issue between the parties related simply to the legal construction of a particular contract, or where no general principle was involved, or where no other cases were necessarily affected by the decision complained of. (r) Appeals lie as a matter of right from the provinces, but, 80 far as colonial cases are concerned, it is said that no appeal lies in any case of felony. When the last court is reached in criminal matters the condemned has the right to sue for pardon at the loot of the throne. Formerly the pardoning power was supposed to be or was in reality, in the [ n'sonal discretion of the Governor-General, (d) Appeals to Her Majesty in her privy council are enter- tained from the court of appeal in Ontario, where the mat- ter in controversy exceeds the sum or value of $4,000, and in cases relating; to the taking of any annual or other rent, customary or other duty or fee, or any like demand of a general or public nature affecting future rights, no matter (r) Johnston v. Tin- MiuiMcr and Trustee* of St. Andrew's Church, Mon- treal, 3 App. Cas. 1;V.(. (rf) The iiiHtructioiiB as to pardon are now to this effect : " The (rovemor-General is not to pardon or reprieve any offender who may t>e tried withni the Dominion without first receiving in capital cases the advice of the privy council, and in other case^ the advice of at least one minister. And in cases in which such pardon or reprieve might directly affect the interests of the empire, or of any country or place be- yond the jurisdiction of the government of the Dominion, the said Governor-General shall before deciding as to either pardon or reprieve, take these interests specially into his own personal consideration in con- junction with such advice as aforesaid." Instructions to his Excellency the Manjuis of Lome. / THE COURTS. 187 what the amount in question may be. Beyond these nu appeals lie from the court of appeal in Ontario to the judi- cial committee of the privy council. / All cases of appeal are commenced by petition addressed to Her Majesty in council ; and this is the first step in their prosecution. Afterwards certified copies of the record from the court appealed from are sent to En^^land and deposited in the council office ; and an appearance having been entered by the respondent, each side makes up its own case if it is allowed to be heard. Security to the amount of $2,000 must be given in such cases. Earl Carnarvon, in 1874, intimated to the Governor- General of Canada that in order to bring appeals from the supreme court of Canada, a petition for that purpose in order to obtain leave to appeal should be brought before the judicial committee of the privy council, and not trans- mitted through the secretary of state to the Queen in council. He also intimated as the practice, that the respondent must enter an appearance before any answer is returned by the judicial committee in reference to the petition. The Gover- nor-General hereafter is to decline transmitting applications in a private suit to the secretary of state for the colonies, but is to inform the petitioner what steps to take in the matter. The circular dispatch of Earl Carnarvon, though directed to the practice in appeals, is an indication tbat the royal prerogative as to allowing them from Canada will be exercised on the recommendation of the judicial committee itself. In effect it would seem to be similar to an applica- tion to any appellate court for leave to appeal, where such leave is necessary. The judicial committee has unlimited powers in the way 188 GOVERNMENT IN CANADA. of procedure, and if* not bound by the rules in the court below. The case is argued by senior and junior counsel, the appellant's counsel having the right to reply : and the judgment of the court is delivered by one judge only, and need not be unanimous — a majority being sufficient, (e) The judgment, after being delivered, is reported by the committee, and submitted to the Queen in council for approval. The order made thereupon is the last proceeding in the case and the judicial rights of the parties are there- by finally determined. THE SUrREMK COIRT OF CANADA. This court is the highest court of appeal within Canada, and entertains appeals, civil and criminal, within and throughout the Dominion from the last court of resort in the provinces. By consent of the parties appeals may be directly made from a superior court, and by leave the court may hear an appeal from any decree, decretal order, or order made by a court of equity, or in an equity proceeding, or any final judgment of the superior courts, other than those of Qiiebec, without intermediate appeal to such last provincial court, providing the case originally commenced in such superior court. In certain cases in election peti. tions an appeal in the same way will lie to this court. In equity cases, and in proceedings in the nature of equity, (<>) Some years ago it was discussed in Eii^jland whether a dissenting member of the committee could declare his dissent. A great deal of learning and lustorical research were expended on another question out of which this arose, that is, whether or not the judicial committee of the privy council is a court at all, or merely a coimultatire body. If a court, then each member would have the right to express a dissenting opinion or judgment ; bat if the usages and traditions of the privy council were to govern, then there could be no dissent, at least in expression. THE cor UTS. 18!) an appeal will lie to this court even from orders made in the exercise of judicial discretion. The court can also hear special cases, review judgments on j)oints reserved at the trial, on motions for a new trial, on motions to set aside an award, on applications in hdlxaa < »jtHH, mniidamua, or municipal hv-laws. It entertains K;)pealH from the exche(pier courts, the uuiritinie court of Dntario, and cashes under the Dominion Elections Act and the Windiu};- up Act. The intention of the Act estahlishiuj; the supreme and excheipier courts is that all orders, decretal orders, decrees and decisions of any superior court made in any such cause, matter or other judicial procecdin;^ in cfjuity, or in any action, cause, suit, matter or other judicial proceeding:; in the nature of a suit or proceediuf; in ecpiity, are and always have heen proper suhjects of appeal to this court. In Quehec cases, the appeal must always come from the Court of Queens Bench ; and the matter in controversy must he at least $2,000, unless it involves the validity of a dominion or local Act of. the legislature or of any Act or ordinance of the territories or districts of Canada, or any fee of ofltice, duty, rent, revenue, or any sum of money pay- able to her Majesty, or any title to any lands or tenements, or annual rents, if brought in the court mentioned. The court has jui'isdiction in criminal as well as in civil matters ; but in respect of any indictable ofTence, no appeal is allowed, if the judgment of the lower court was unani- mous in afidrming the conviction. This court of last resort in the provinces does not mean the individual judges who may be authorized to sit in these courts, but the tribunals from which the appeal" ".re to come, or the respective courts themselves, without reference to the number of judges; provided always the court be duly 190 UOVBRNMRNT IN CANADA. couHtitutcil by the presence of a Huflicicnt number of judges to make a legal court, whatever that number raay be. { /) The judgment of two or even of one judge, where the courtH may be couRtituted ot these numbers respectively, is not appealable. An appeal lies only where there is a dissenting judgiiunt in the court appealed from, {(j) No appeal lies to this court from the judgment of a court granting a new trial on the ground that the verdict was against the weight of evidence — that being a matter of discretion. (/*) The Governor- General may refer any matter to the judges of the supreme court for hearing or consideration, and they shall certify their opinion thereon to the Governor in Council ; and either house of parliament may refer any private bill or petition thereto. Controversies arising between the Dominion and the pro- vinces, or between the provinces themselves, may, with the consent of the provinces, be determined by the supreme or the exchequer court of Canada. The province of Ontario has placed herself within this jurisdiction by enacting that the supreme court may entertain controversies between the Dominion and the provinces, and also controversies between Ontario and any other province submitting to the jurisdic- tion of the court. In such actions and proceedings in On- tario, where the parties thereto by their pleadings raised the question of the validity of any Dominion or provincial Act, if in the opinion of the judge the question is material, the case may be ordered by the judge, either with or with- out the request of the parties, to be removed to the supreme court. ( /■) Per Mr. Justice (now Chief Justice) Sir Wrn. Ritchie in Amer v. The Queen, 2 H. C. o) The court, or any judge, may also order the issue of a writ of certiorari to hring up papers or proceedings necessary with a view to any enquiry, appeal, or other proceeding before such court or judge. The supreme court sits three times a year ; on the third Tuesday of Ft' '.iry, the first Tuesday in May, and the fourth Tuesday ;a October, at Ottawa, and is presided over by a chief justice and live associate judges, who hold otlice during good behaviour. Any live of the judges are com- petent to hold court in term. The judges are incapable of holding any office of emolument under the Dominion or provincial governments. lUiles in relation to appeals are laid down by order in council, and the judges of the courts can make rules and orders for the purpose of carrying out the actn establishing this court. All barristers or advocates, attorneys or solici- tors in any of the provinces, shall have the right to practise as counsel, solicitors, etc., in this and in the exchequer court ; and all such practitioners are officers of these courts. A registrar and reporter of the court are appointed by the Governor in Council. The proceedings in this court are regulated by rules approved of by the court. The first proceedings in appeals, after the notice of appeal is given and the security perfected, is the filing of a case (i) No appeal is allowed in any case of proceedings for or upon a writ of habeas corpus arising out of any claim for extradition made under any treaty. B. S. C. cap. 135, sec. 31. B ■B 192 OOVRUNMENT IN CANADA. I » h' stated by the parties, setting forth the judgment objected to and so much of the pleadings, evidence, atfidavits and documents as may be necessar}' to raise the question for the decision of the court. The case must also, if possible, contain a transcript of all the opinions or reasons delivered by the judj^^es in tiio courts below ; and must be accotupanipd by a certiticatf! that proper security to the extent of $500 has been given by the appellant in the court appealed from. Twenty-tivc c(>pi<>s of the case are printed in a prescribed form, and these, with certitied copies of ori;j;inal documents, deposited with the registrar of the court. Notice of hearing is served at least a month before the next session of the jourt, at which time each party deposits in court copies of the factum or points for argument in appeal. This con- tains a concise statemei>t of facts, the points of law and "^'je arguments and authorities in the case, and is printed and distributed in the same way as the case or appeal. They are put in under seal and when deposited are exchanged with the opposite party. When the rules of court are com- plied with the appeals are set down for hearing, and the case is heard with not more than two counsel for each side — one only in reply. These rules do not apply to criminal appeals or to haJx'aa corpus cases, in which a certified written ease is all that is necessary in order to bring them before the court. In election appeals the record or the necessary part of it is printed under the direction of the registrar of the court, but each factum is prepared just aa in ordinarj' cases. ( /) (,/■) In Ontario, a snfiicient number of appeal books are printed tor the court of appeal and for the supreme court at Ottawa, when the appeal )i prepared in tiie first instance. When the judf^ments of the court of appeal for Ontario are f?iven, the unsuccessful party can have these printed and added to the appeal books, making the necessary alterations in the title and index, and use tliis for the supreme court at Ottawa. Th^/dctum is prepared, but the case is entered with iuuch less expense in printing. THE COURTS. 198 THE EXCHEQUER COURT OF CANADA. The Act of 1875 estahlisbing the supreme and exchequer courts of Canada has, so far as the latter court is concerned, been superseded by the Act of 1887. The court of ex- chequer is continued under its former name but its judge is not one of the judges of the supreme court and the court is completely detached from that court. The practice and procedure of the exchequer court are regulated by the practice and procedure, so far as they are applicable in similar suits, in the high court of justice in England. The court has exclusive jurisdiction in the following matters : — Every claim against the crown for property taken for any public purpose. Every claim against the crown for damage to property, injuriously affected by the construction of any public work. Every claim against the crown arising out of any death or injury to the person or to property on any public work, resulting from the negligence of any officer or servant of the crown wliile acting within the scope of his duties or employment. Every claim against the crown arising under any law of Canada or any regulation made by the Governor in Council. Every set-oif, counter claim, claim for damages, whether liquidated or unliquidated, or other demand whatsoever, ou the part of the crown against any person making claim against the crown. It has concurrent jurisdiction In all cases relating to the revenue in which it is sought to enforce any law of Canada, including actions, suits and o.'s.G.c. 14 ^ i !! 194 GOVERNMENT IN CANAwA. proceedings by way of information to enlorce penalties, and proceedings by way of information to information in rem and as well in qui tarn suits for penalties or forfeitures as when the suit is on behalf of the crown alone. In all cases in which it is sought at the instance of the attorney-general of Canada, to impeach or annul any patent of invention, or any patent, lease, or other instrument respecting lands. In all cases in which demand is made or relief sought against any officer of the crown for anything done or omitted to be done in the performance of his duty as such officer. In all other actions and suits of a civil nature at common law or equity in which the crown is plaintiff or petitioner. The court sits at any place in Canada, and the sheriffs and coroners of the different counties are officers of this court. In Ontario a judge of the exchequer court had, in regard to the use of the court house and other buildings set apart in the county for the administration of justice, the same authority in all respects as a judge at uisi prius. Execution can issue out of this court to enforce its own decrees — the writs issuing in the name of the judge, and its process runs throughout Canada. There are the usual officers appointed for this court, (k) THE MARITIME COURT OF ONTARIO. The parliament of Canada has established a superior court of maritime jurisdiction in the province of Ontario and conferred on it all such jurisdiction as generally be- longs to any existing British vice-admiralty court in similar (k) This Act is uot yet iu force, SO-51 Vic. cap. IG. THE COURTS. 195 matters within the reach of its process. It has to deal with matters of contract and of tort, proceedings in rem and in personam, arising out of or connected with navigation, ship- ping, trade or commerce on any river, lake, canal or inland water, of which the whole or part is in the province of Ontario. It has jurisdiction touching the ownership, posses- sion, employment or earnings of ships. The corresponding court in the lower province is the vice-admiralty court at Quebec, (l) The county judge of the County of York residing at Toronto is the judge in this court. All barristers and ad- vocates may plead in this court and solicitors when prac- tising therein are known as proctors of the court. The practice follows, as far as is applicable, the instance side of the high court of admiralty in England. An appeal lies from the maritime court of Ontario to the supreme court of Canada. (/) See article "Vice-admiralty jurisdiction," by Mr. Lash, Q.C. and. Mr. B. G. Cox, in the Canadian Law Times, Vol. VII, page 21. i 196 GOVERNMENT IN CANADA. CHAPTER XVIII. PROVINCIAL COURTS, CIViL PROCKDIRE, OFFICERS OK THE LAW. Procedure in civil matters belonf/s to the provinces — In criminal matters to the Dominion — Want of uniformity in lau'8 and procedure as to properti/ and civil rights, old divisions of English courts, appeal courts — Equity and common law courts, cases heard in jirst instance, superior and inferior courts — Object of procedure and pleadings — Writs, statements, record, issue, — Trial, verdict, exe- cution — Officers of the law, attorneys, solicitors, counsel, notaries, sheriff's, coroners. THE COURTS. i By the 14th sub-section of section 92 of the B. N. A. Act : The administration of justice in the provinces, including the constitution, maintenance, and organization of provin- cial courts both of civil and criminal jurisdiction, and including procedure in civil matters in these courts, forms a class of subjects within the exclusive control of the pro- vincial legislatures. The 27th sub-section of section 91 allots " the procedure in criminal matters " to the parlia- ment of Canada. The provinces having therefore to deal with procedure in civil matters, it is to be expected that there will be great diversity in civil trials. There is not much uniformity in the provincial laws ; but the framers of the Act were in hopes that the English speaking provin- ces might make provision for uniform laws as to property PROVINCIAL COURTS, CIVIL PROCEDrRE, ETC. 197 and civil rights, and they accordingly inserted a section to meet that expectation, (a) In Quebec where the old ^ French law — the Coiitiime de Paris is the basis of all civil _ matters, and where a code obtains as to procedure, with no great likelihood of any change, the Act is silent as to the prospect of uniformity or as to the prospect of the judges for that province being appointed from the bar of any other province. (/>) The remaining provinces have a system of laws and a procedure and practice founded on English law ; and it may be possible to give the unprofessional reader some idea of the courts and of the general procedure in a civil case such as obtains in England and in some of the provinces. In all the provinces there is some ultimate court of appeal to which suitors who are not satisfied with the decisions of the superior courts of law and equity can resort for a more authoritative disposition of their oases. This corresponds to the house of lords court in England, which hears and determines appeals from the English courts. Formerly there were three common law courts, the Queen's bench, the common pleas and the exchequer court, aud one court of equity called the high court of chancery. The exchequer court was not usually transplanted into the colo- nies but the other three were generally reproduced. The colonial courts of appeal were sometimes composed of the judges of all the superior courts sitting as one court, and sometimes composed of other judges as is the present court of appeal for Ontario. An appeal lay from these courts of ultimate authority in the province to the judicial committee in England, the ultimate authority for such matters in the empire. The provincial courts of appeal do not as a rule entertain cases in the first instance — axcept some election (a) Sec. 94. (ft) Sec. \)'7 and 98. S T hi !l 198 O0VKRNMEN-" IN CANADA. petitions ; they uit to determine appeals fron^ lower courts. The superior courts of law and equity in Ontario, following the analogous legislation in England, have been merged into one high court of justice with divisions in it named after the time-honored nomenclature of Queen's bench, chancery and common pleas, and with changes very impor- tant in the constitution of these courts. Formerly the chancery court had its own special work ; equity as distin- guished from law was a source of perplexity in procedure and interposed a division of some sort in the administration of common justice. Ancientl}' in England the common pleas heard civil disputes only ; the Queen's bench criminal matters exclusively, and the exchequer court concerned itself solely with the revenue. Many of these distinctions have been removed, and generally each of these divisions has now the power of any one of them. These are the superior courts — they sit for the whole province or country, and two or more judges sit in term, at stated times in the year, to review cases heard in the first instance by a single judge. The court, wherever a case is heard in the first instance before p, single judge and with or without a jury, is properly known as the assize court, or the court of nisi priHs. (c) From the fact that the criminal cases are heard at the same time and place and the gaol emptied, this (f) In England the court of assizes was a court of 12 judges — three from each of the four divisions already mentioned— empowered to try twice in the year in their respective circuits, all causes civil and criminal in every county in England, except London and Middlesex only. There were six circuits, and two judges were appointed for each. Under the commission of assize they tooK the verdicts of a peculiar ''pecies of jury called an assize, and summoned for the trial of landed c .sputes. The judges p -t <"^ v-all under four other commissions. (1) A court of gaol df'ii ^ • ri) The session of the peace. (S) The court of oyer and u. n' ■; i riie court of Hist /jciHs. The first of these and tlie court i • '-VH : iner dealt with criminal cases, to deliver prisioners, and •j" 'ij. lot.- and determine" all treasons, felonies and misdemea- 1 Mi ji • , - t found at the same assize. The session of the peace was 1. . . f . ' ■ ' : 'les in the year, hearing cases under authority of Acts of parliaineui uiid the commission of the peace. Several justices may sit in this and in the court of oyer and terminer but there must be one PROVINCIAL COURTS, CIVIL PROCEDURE, ETC. 199 court is also called the court of oyer and terminer and general q(^\ delivery. In these courts the evidence is heard and the judgment or verdict or sentence rendered or pronounced at the time. The courts in term sit in review of the decisions thu.^ arrived at ; the provincial court of appeal, or the supreme court of Canada at Ottawa may review the judgments of the court in term. Besides these courts of general jurisdiction there are county courts having to deal with local cases of less im- portance ; and there are also smaller courts graded down to those of justice of the peace or police magistrate who have jurisdiction over a few civil matters. These courts are of inferior jurisdiction and they ?.. in most cases con- trolled in a modified way by the superior courts. Writs may issue out of the superior courts directing the lower courts by mandamus to do certain things, or by prohibition to refrain from taking certain steps, or by procedendo to continue in the prescribed course. These extraordinary remedies are however very rarely resorted to, both because the lower courts keep within their own constitutions and duties, and the other courts will not interfere unless in the plainest cases. The county courts and their judges also hear criminal cases of a less grave nature than those tried at the assizes — these are the quarter sessions or the general sessions of the peace or the county judge's criminal court. • ( ft I t of the qiKiriim in each court. This was theoriij;in of the ylirase "justices of the qitonim,'" -the commission hein;;; athiressed to tlie assize judges one iclioni would take the particular circuit. In London and Middlesex the commission of assize directed the trial of all matters in dispute at Westminster Hall, and a writ of h/s/ priw<, (unless before) was attached to the commission. This commission called upon all suitors in the kinj.;dom to repair thither for the disposition of these cases, k/z/ci*' before a, certain day, a court for the trial would be held in the circuit towns. The court lield in the circuits in this way was the court of nini priiin, and it dates back to the liJth year of Edward I. Formerly there were nine courts of common law ; the same number of ecclesiastical courts ; fourteen courts of special jurisdiction ; sixteen of criminal juris- diction ; besides equity, military and maritime courts. 200 GOVERNMENT IN CANADA. But at the sessions justices of the peace may and do sit with the county judge for the disposal of oflfenders. These are the courts for all purposes, and for all laws ; and the provincial legislatures have control over their constitu- tion maintenance and organization. The Dominion govern- ment controls the criminal procedure ; that will he referred to in the next chapter. A word or two may he said of procedure in civil matters ; but as it varies in all the provinces, only a few general features can be referred to. ! i PROCEDURE. The procedure in any action is the mode by which the dispute between two or more i)arties is brought into court to be tried and settled. The case of each side is set out in what is called a pleading; these pleadings come into court in the form of a record — which is the guide of the presiding judge as to the matter in dispute. To get the parties be- fore the court with a full and complete statement of their claims and defences is the object of all pleadings ; and it is substantially the same under every form of procedure though the practice of the courts in each particular, may be as different as can be imagined. In the old chancery procedure the plaintiff formulated all his charges and grievances against the defendants in an elaborate document called a bill 'of complaint, depositing one copy with the court for the hearing and serving others on the defendants. The defendants replied on oath by an equally elaborately worded answer, and if the parties were at issue they went to trial. That mode of proceeding has almost disappeared and the procedure now begins generally with a writ of summons containing the substance of the plaintiff's claim, and calling on the defendant to appear within so many days. When the appearance is entered the plaintiff files and serves a statement of claim and the defendant simi- ill PROVINCIAL COURTS, CIVIL PROCEDURE, ETC. 201 larly formulates his defence. When they are at issue on questions of laxv or of fact, the case is tried hefore some judge of one of the courts and a judgment entered, upon which the successful party is entitled to get the relief which the court has afforded him. The unsuccessful litigant has generally the right to appeal. If the amount at stake is considerable or if any principle of law is involved, he can usually go to the ultimate court in his own province and then to the supreme court or to the judicial committee of the privy council in England. The practice and procedure in bringing any case to trial, are too elaborate to admit of any generalization beyond what has been already given. The necessary parties, the proper court, the valid legal claim or defence, the language in which it is presented to the court, are some of the difficulties in the procedure of a civil case : but assuming that a plaintiff has a good claim in law and that it is not negatived by some valid objection on the part of the defend- ant, the action would proceed generally in the manner indicated, until the final court was reached. The successful party then obtains payment of his claim or the performance of such duty as he was entitled to either by the submission of the opposing party, or through process by the sheriff. 'Ihis process is a writ either of execution to sell goods and lands, or a writ of possession, or of assistance, or as the nature of the judgment or decree or order of the court may direct. Every person is allowed to conduct his own case in per- son either as plaintiff or as defendant ; to issue his own writ or appear to one issued against him ; he can prepare and file his pleadings and go into court and argue his own case. In other words he can be his own attorney or solicitor, and counsel, {d) But no one is allowed to act thus for another (d) It was usual to speak of an attorney in actions at law and solicitor in cliancery cases ; solicitor is the term now in Ontario. I i 'r 202 OOVERNMKNT IN CANADA. I i unless he in n member of tlie legal profession. He is then an officer of the court, and subject to its summary jurisdic- tion. He must be declared by some law society specially charged with that task, to be duly qualified for suca duties. The different provinces of the Dominion make their own regulations under legislative authority as to who are and who are not legally qualified practitioners, and their powers, duties and obligations. Reference will here be made to the chief officers of the law engaged in the prosecution of a suit civil or criminal, and to such persons as are entrusted with the execution of the process of the courts. OFFICERS OF THE LAW. In Ontario the treasurer and benchers of The Law Society of Upper Cannda form a corporation ; and they and their successors in office regulate the government of the society, the appointment of officers, the legal education of students and the term of studentship, and the admission of appli- cants as barristers-at-law or as attorneys and solicitors into the law society. The benchers have the appointment of reporters to the superior courts, and tix the amount of their salaries. No one can practise at the bar in Her Majesty's courts of law or equity in Ontario unless he has been entered and admitted into the law society under its rules as a barrister. The attorney-general for the Dominion ranks first in precedence in the Ontario bar, then the attorney-general for the province, then previous attorney-generals according to seniority of appointment. After these solicitor-generals and such Queen's counsel as were appointed before con- PROVINCIAL COURTS, CIVIL PROCEDURE, ETC. 203 1 federation, in the Bame order. Other members rank in the order of the call to the bar. (e) Attorneys and solicitorB are admitted into the law society under rules similar to those for barristers, and must not practise without paying an annual fee and obtaining a certificate. They may be struck off the roll of any of the courts by a superior court judge on application being made in a proper case. It is usual to speak of members of the legal profession as attorneys when conducting actions or suits in the common law courts, and solicitors in the chancery or insolvency courts. In the maritime court they are styled proctors. The profession of barrister in Ontario, though not so distinct as in England from the office of solicitor or attorney, is yet separate from the latter. Generally barristers here are members of both professions — if indeed there can be said to be two profes- sions in the province. A number of solicitors, however, are not barristers, and therefore not entitled to plead in court. On the other hand, a barrister who is not an attorney or solicitor as well, is not privileged to act in any other capacity than that of arguing in court the cases which the attorneys or solicitors prepare tor him. The judges of the superior courts are selected from barristers of at least ten years standing. In other courts the length of time varies with the court. In Quebec all advocates, barristers, attorneys, solicitors and proctors-at-law, form a corporation called The Bur of the Produce of Quebec. {/) A certain number of officers of each of the sections into which the corporation is divided constitutes a council with powers somewhat analogous to (e) The appointment of Queen's counsel is now left to the Dominion government— that is, the provincial authorities are not in the habit of making such appointments. See ante page 35. (/) See Act of 18SG of Quebec, consolidating the law on this subject. f 204 OOVERNMKNT IM CANADA. the Law Society of Upper Canada. They entertain mat- ters, however, an.onp; the raorahers of the profesHion not dealt with in Ontario by the Law Society, noticeably the pronouncing of censures, through the Jidtonnier, for any breach of discipHne or action derogatory to the honour of the bar. Members may be suspended by this ofticer, sub- ject to approval of the council. Notaries public in Quebec form a separate profession, being divided into a number of bodies corporate under Acts very similar to those relating to the bar of the province. Their duties not only embrace the certifying and protesting of documents, but includes nearly all of what is understood in English practice by conveyancing. In Ontario a notary public is appointed by the Lieutenant-Governor, and may protest bills of exchange and promissory notes ; and may draw, pass, keep and issue all deeds and contracts, charter parties, and other mercantile transactions in this province, may give certifi- cates as to copies of instruments, and has some other undefined duties. They form no profession and are part of none, though the commission is usually granted to mem hers of the legal profession as of course. Any person not a barrister or attorney must, however, pass an examination as to his qualification for the office before his county judge, or before some one appointed for that purpose by the Lieutenant-Governor, and produce a certi5u;''te that on examination he is found qualified for the office ; jwid further, that in the examiner's opinion a notary pTiLju: is needed in the place where the applicant intends to carry on business. Formerly they could administer oaths or affirmations only under certain statutes ; usually the courts of Queen's Bench and Common Pleas appoint commissioners for taking affi- davits for this purpose, who have power within the county in which they reside. Under the Ontario Act of 1885 (cap. 16), all notaries public now appointed or to be ap- pointed hereafter have all the powers of commissioners to PROVINCIAL COrRTS, CIVIL PROCKDl'RK, KTC. 2or. take aftidavits and declarations in all courts in any part of the province. They are now olHcers of the high court of justice for Ontario. Slieriffs are otiicers of the courts appointed by the Lieutenant-Crovernor under the great seal, one for each county, and hold otVice durinj:; pleasure. This oflice is one of the oldest and most honourable in the gift of the crown. Formerly he held a court for his shire or county, and the word sheriff means a reei'e of the shire. He attended the King's court and looked after the peace of the county. He is yet the chief executive officer of the courts, attends the judge in circuit, summons the juries, has charge of the gaols, and executes all writs and sentences of the courts up to the execution of a criminal — the extreme penalty of the law. Where the sheriff is personally interested in a case, or where he cannot or will not execute the process of the court, the writs may be addressed to the principal coroner of the county, (g) [g) See Oflice of Coroner, etc.. punt. m 206 GOVERNMENT IN CANADA. CHAPTER XIX. PROCEDURE DEFINED BY THE DOMINION PARLIAMENT CRIMINAL LAW AND ITS OFFICERS. Criminal law, Ontario, Quebec, etc — Information, inquisition, jrresentment — Criminal information, leave to file — Pro- cedure to trial, accusation, exndence, committal — Grand jury, hill, petit jury, trial, sentence — Extradition — Justices of the peace, ex officio justices, summons, warrant, convictinn, itrtiorari, committal, felony, police muifiiilrates — Coroners, appointment, functions, inves- tigation, jury, finding, committal, inquisition — County attorney, duties — Crown counsel. CRIMINAL '-AW AND PROCEDURE, (or) | , The criminal law of Canada is defined by the Acts of the Dominion parliament constrnedby the common law of England. In Quebec it is the criminal law of England as intioduced in 176'^ and re-affirmed in 1775 ; in Ontario it is the criminal law / England as it stood on the 17th Sep- tember, 1792 ; in British Columbia it is the criminal law of England as it stood on the lOtli November, 1858 ; except as the same may have been modified by the respective legis- (rt) Since the repeal of the insolvency laws this is the only subject where the procedure is not regulated by the provincial laws— except Dominion controverted election cases and sucli proceedings as may be in an appli- cation for a divorce before the senate. C ises relating to bills of exchange and promissory notes, interest, legal tanJjr or bmks, are not regulated by procelure different from the ordinary civil procedure. The jurisdio- tion of the m iritiins and excharjuer courts his b33ii referred to and alao the originu,! jurisdiction of the aupremj court of Canada, PROCEDURE DEFINED BY THE DOMINION PARLIAMENT, ETC. 207 latures of the said provinces before the same formed provinces of Canada (i). In the other provinces the law of England was introduced at different periods before con- federation, though it is not so evident that its introduction was effected in the same way as in the three provinces mentioned. In Manitoba, the criminal law of Canada was introduced by various provisions since 1870 The procedure in criminal law is directed by Acts of the Dominion parliament, and is generally uniform in its application to all the provinces ; but the Dominion Acts recognize differences in certain cases, founded generally on -dixTeTences of procedure having existed before the provinces formed provinces of the union. In criminal trials, as it is the public that is wronged, the action is said to be brought bj the Queen or King against the accused. The case under our statutes is commenced either on information laid before a justice of the peace, or police magistrate, the inquisition of a coroner's jury or the presentment of a grand jury. A criminal information, on leave being obtained, may be filed in any of the superior courts of original jurisdiction for misdemeanors only, in cases of general public impor- tance, or, as affecting libellously upon some high public functionary or body. Informations of this latter class it is the tendency of the courts of Ontario to discourage. A criminal information known as an information ex officio may be filed by the attorney-gt-'ueral without leave of the court against an offender in all cases of misdemeanor immediately att'ecting the Queen or her government. No criminal information will lie in regard to a felony or high treason. The procedure only applies to those misdemeanors (b) Revised Statutes, D. page 138, sections 1 aud 2. I 208 GOVERNMENT IN CANADA. upon which an indictment would He before a justice of the peace. Leave to file a criminal information rests in the discretion of the court, and is a proceeding of an extraor- dinary character in criminal matters. In England it is granted when the matter complained of is of public impor- tance, and that a speedy remedy is desired and necessary ; or where some important official or superior person is the subject of grave charges ; but the tendency of the courts here would seem to be to discourage the practice of granting leave for such informations. It is the only instance where proceedings are begun in a superior court of justice. WTien an indictable offence is laid before a justice of the peace, if the evidence is sufficient to put the accused on his trial, the justice must either send him to gaol to await the next sitting of the court or admit him to bail. A number of cases are also sent up to the county crown attorney or other officer from the coroners of the different counties, (c) In cases where manslaughter or murder has been com- mitted, the coroner empanels a jury, and their verdict or inquest is transmitted to the crown attorney as in the case of justices' committals. The county attorney, or whoever the proper official may be, attends with these informations and inquisitions at the next sitting of the court of compe- tent jurisdiction and prefers them to the grand jury for their opinion as to whether or not the evidence is sufficient to put the accused on his trial. A grand jury is composed of not less than twelve or not more than twenty-three persons selected to be grand jurors ; ((') lu cases of iniirdei* or manslaughter upon a verdict incriminating; any person by a jury empannelled by a coroner, the party charged may be tried with the ' 'xme effect as on an indictment found by a grand jury against him. le PROCEDURE DEFINED BY THE DOMINION PARLIAMENT, ETC. 209 and their duty is to judge whether the prisoner ought to be put on his trial or not. In certain cases, such as perjury, subornation of perjury, conspiracy, obtaining money or other property by false pretences, keeping a gambling house, keeping a disorderly house, or any indecent assault, no presentment to or finding by the jury is made without the person making the accu- sation first giving a bond to prosecute or give evidence in the matter ; unless the accused is committed, or is in cus- tody, or that the indictment is preferred by the attorney or solicitor-general of the province, or by a judge competent to give such a direction or try the oflfence. The grand jury judge nothing of the guilt or innocence of the accused ; that is left to another jury. In the finding which the grand jury makes to the presiding judge, if in their opinion the accused ought to be put on his trial they write " true bill " on the back of the information or inqui- sition ; and if not they write " no bill," and the accused is discharged without trial, but not properly until the court is about to rise. The grand jury also presents a statement in reference to the state of the county jails, asylums, etc., which is called a presentment, and in this they can take notice of certain crimes and have the accused put on his trial ; but such presentments are by no means necessary. After the grand jury brings in a true bill the accused pleads guilty or not guilty ; or in the event of his silence, the court can plead not guilty for him. In capital offences the accused can object to or challenge not more than twenty jurors. In other cases of felony not more than twelve jurors, and in all other cases four jurors. These may be objected to without any reason given. Any o's.a.c. 15 V 210 GOVERNMENT IN CANADA. number may be objected to on cause assigned. The crown has the right to challenge four jurors peremptorily, and has also the right to cause any juror to stand aside until the panel has been gone through, and has the same rights as the accused aa to challenge for cause. In the provinces of Quebec and Manitoba there are special provisions where- by the person accused in certain cases may be tried by a jury half EngKsh and half French (d). w The accused, after the close of the case for the crown, can make full answer and defence to any indictment pre- ferred against him, and be heard by his counsel on his behalf. But the modern practice permits the accused, in addition to the defence by counsel, to give any explanation to the court which he may think proper, and usually before counsel representing the crown has summed up the whole case. The judge, on the finding of the jury, sentences the accused or discharges him as the case may be. From this there is no appeal. The judge may reserve any question of law to any of the superior courts. But in case the judge refuses to reserve a point of law, or could not have reserved it, a writ of error may issue so as to bring the matter under the consideration of superior courts If the conviction is bad for any cause, the whole trial is a nullity, and a new trial may be granted in such cases. In the absence of reprieve or pardon by the crown the sentence of the law .is carried out by the various punishments of death, iuiprison- ment, etc., provided by the statutes in that behalf. The appeals to the supreme court, as well as the exercise of pardon, have been adverted to heretofore. (d) R. 8. D. cap. 168, sec. l(i6-()7. llMiiillM PKOCEDURK DEFINED BY THE DOMINION PARLIAMENT, ETC. 211 In cases of offences committed in a foreign state when the guilty parties have taken refuge in Canada, the extradition Act, R. S. C, governs the classes of crimes for which the two governments subject to any extradition arrange- ment, have agreed to hand over the offenders. These are as follows : (1.) Murder, or attempt or conspiracy to murder; (2.) Manslaughter ; (3.) Counterfeiting or uttering counterfeit money ; (4.) Forgery ; (5.) Larceny; (6.) Embezzlement ; (7.) Obtaining money or goods under false pretences ; (8.) Crimes against bankruptcy or insolvency law ; (9.) Fraud by bankers, agents, trustees, directors and officers of companies, etc. ; (10.) Rape ; (11.) Abduction ; • ' (12.) Child stealing; (lb.) Kidnapping; (14.) P'alse imprisonment ; (15.) Burglary, housebreaking or shopbreaking ; (16.) Arson ; (17.) Robbery; (18.) Threats with intent to extort ; (19.) Perjury or subornation of perjury ; (•20 ) Piracy on board or against a vessel of a foreign state ; (21.) Criminal scuttling or destroyinsj such a vessel at sea, or attempting or conspiring to do so : (22.) Assault on board such vessel, v,'ith intent to destroy life or do grievous bodily harm ; ■ 212 GOVERNMENT IN CANADA. (23.) Bevolt or conspiracy to revolt on boar(? such a vessel against the authority of the master ; (24.) Any offence under either of the following Acts and not included in any foregoing portion of this schedule ; (a) " An Act respecting offences against the person ;" {b) " The Larceny Act ;" (c) " An Act respecting Forgery ;" (ntreal, capitulations — Military government, 17o0 to 1763. The North American continent from its discovery was claimed by several Em'opean nations, but chieliy by the French and the English. Tlie French owned all north of the Eiver and Gulf of St. Lawrence and of the great lakes, and also Michigan, Ohio, and the territory lying westward of the Mississippi river as far south as New Orleans. The English owned everything to the south and east of this somewhat indefinite bouiulary except Florida, which was owned by the Spaniards. The British possessions were originally by royal grant divided into two provinces, North and South Virginia, but afterwards they were subdivided until they numbered thirteen. These were the old thirteen colonies that declared their independence in th(! year 177(5. The western boundary of these English colonies was con- veniently placed at the IMississipp, 'iver. though the early » ' \v %> ; l',)| ■' :! ! 11 250 GOVERNMENT IN CANADA. maps are not very uniform on that point ; the northern boundary', where the great lakes interposed no natural barrier, was not so readily accepted ; the boundary on the north-east was changed several times, (a) The circumstances which led to the conquest of Canada by the British in the last years of the reign of George II and the formal cession of the country in the subsequent reign are matters of general history, and not so obviously within the range of that species of history which has for its object the noting of changes in the manner of our govern- ment. Nevertheless there is a Canada before the cession of 1763, and a Cnnada thereafter; the one French — the other English ; there are the contending owners, France and England, and the terms of their settlement. From the discovery of Canada by Cartier in 1534 down to the end of the sixteenth century, there is nothing of any special interest. There was a formal taking possession of the country in the name of France. Champlain was appointed liist Governor by Condo under Louis XIII. His t^ (a) The 45th parallel of latitude was adopted for nearly one-half of the distance from the St. Lawrence to the Bcaboiird, throuj^h what was then Massachusetts ; after that " the high lands dividing the waters falling into the Atlantic from those emptying themselves into the St. Lawrence " were taken as sufficient to indicate the limits of both countries. The boundaries of the British provinces were not altered by the war of 1812- 11 between England and the United States, whicli was terminated by the treaty of Ghent in 1814. The difficulty of determining the boundary in the east, where the 45111 parallel was no longer considered as a guide, gave rise to a good deal of negotiation between the contending parties. In 1827 it was referred to the King of the Netherlands whose award was deemed highly unfavourable to the United States. That power refused to accept it. Afterwards, when fresh diHiculties arose in 1842, Lord Ashburton and Daniel Webster were appointed commissioners to define the boundary. This is known as the Ashburton treaty It recognized the 4")th parallel to the high lands in New Hamp^'iire as the northern boundary of New York and Vermont States, and traced out the line between Now Hampshire and Mamy to the south and east of Lower Canada and New Brunswick. Beginning at the Facilic in the west the 4;)tli parallel was adopted to the Ijake of the Woods, and from that the central line of the lakes and river St, Lawrence to complete the boundary to the 4oth parallel. l! EARLY DIVISIONS OF THE COKTINENT — CANADA. 251 French subjects numbered sixty. In 1629, by the fortunes of war, Canada passed into the hands of the British, who, three years later, returned it to the original owners, (b) Cardinal llichelieu then took the infant colony in charge an-l the company of the One Hundred Associates was formed. This company was replaced in 1663 by a royal government and the change is one by which some interest is awakened, because it establislied an order of things which i:' isted till the cession in 1760, a period of nearly 100 years. Louis XIV. was ruler in France and Colbert his minister. The hundred associates, reduced by more than one half, were superseded by a royal government under n. supreme council. The royal government was con- stitulcu similarly to the parliament of Paris, the principal functionaries being appointed by the king and responsible to him. The co'ony was practically ruled, however, by a trium- rate composed of the governor, the bishop and the royal intendant. There were a number of councillors varying from five to seven, and then to twelve, with an attorney- general and a chief clerk. This sovereign or supreme council had charge of all the affairs and business of Canada, formed a court of appeal, collected the revenues, but had no power to levy taxes except with the king's permission. The country was divided for judicial and other purposes into three divisions, which are still maintained, viz., Quebec, Montreal and Three Ilivers. M. de Mesy was the first governor and Monseigneur Laval the first bishop. The royal government was acceptjible to the inhabitants b) This was by the treaty of St. Germain-en-Laye, 1632. - f-);^ f'i ■ i'p & 252 GOVERNMENT IN CANADA. $ of Quebec and they lived happily under it. It was suited, and justly so, to Frenchmen and to Roman Catholics, and one of the great causes of discontent, after the cession, was that it was not and could not be suital)le or acceptable to Englishmen or to Protestants. At its basis for land tenure were the feudal laws of the preceding centuries ; the Coutame de Paris, the ancient laws of France, were its guide in legal matters; and the Catholic religion, as the religion of the inhabitants, was recognized by the law of the land. The earliest treaty between France and England affect- ing American territory is that of St. Germain-en-Laye, 1(332. The English in IG'iO made a descent on Quebec and kept it for three years. They then gave it back, Canada, New France and Acadia, without limits ; and it is a peculiarity of all the treaties down to the Treaty of Paris, 1763, that the boundaries were not assigned. After the Treaty of St. Gerraain-en-Laye, we find, in \ J.670, the Charter of Charles II. granting territory to the Hudson Bay Company ; but this did not include any lands tluai " possessed by the subjects of any other Christian Prince or State." The treaty of Eyswick was concluded twenty-seven years after the date of this charter, and by it the forts and factories of Hudson Bay were restored to the French — these having been taken from them by the English in the preceding wars. Whatever territory that might embrace was given back again to the English by the treaty of Utrecht in 1713, — " the bay and straits of Hudson, togetlier with all lands, seas, coasts, rivers, and places situate in the bay and straits and which belong thereto." The treaty of Ilyswick has an assertion on the part of the French that the Kennebec is the eastern boundary between them and Massachusetts ; the slice of territory between that river and the St. Croix is now i 1 ,1 ,1. EARLY DIVISIONS OF THE CONTINENT — CANADA. 253 within the United States. The entire eastern coast, Nova Scotia, Cape Breton, St. John (now, Prince Edward Island), Newfoundland, Lahrador and Hudson Bay remained to the French hy the treaty. By the treaty to Utrecht, Nova Scotia, then called Acadia, according to its ancient limits, together with the whole of Newfoundland, was given up to England. The French retained some reservations as to the English fisheries in Newfoundland, and the English secured the fur trade of the Hudson Bay. The treaty of Aix la Chapelle in 1749 restored Cape Breton with the islands of St. Pierre and Michelon to France. Three years prior to this Cape Breton had heen taken by the Englisli colonists. It is the only other treaty down to the great treaty of 1763 that is taken up with the shufiliing of territory between these two powers. In 175(5 the seven years' war began in Europe, and it could not be expected that the colonists of France and England in America would be unati'ected by it. The English colonists met at Albany to adopt a line of com- mon defence ; the French under the Marquis de Vaudreuil were equally active in opposing them. Thus the war began in the colonies, and after a pro- tracted struggle, in which success now leaned to one side and now to another, the chief strongholds of the French were taken by the English, first Quebec and subsequently Montreal. On the 18th of September, 1759, Admiral Saunders, General Townshead and M. de Ilamezay signed the articles of capitulation of Quebec. The principal terms were as follows : — " The land forces, marines, and sailors of the garrison to be accorded the honours of war, and to be con- I 1 ' 4 A ^r in 254 GOVERNMENT IN CANADA. Vfiyed in British ships to the nearest port of France ; the property of the inhabitants, as well as that of the officers, both of those present and absent, to be inviolate and their customary privileges to. be preserved ; the free exercise of the Eoman Catholic religion to be permitted, and safe- guards granted to all religious persons, including the Bishop, until the possession of Canada should be decided between the Kings of England and France, and guards to be posted at the churches, convents, and principal habita- tions ; the sick and wounded of both sides to be equally cared for, and the physicians and attendants upon them to have every facility and assistance in the discharge of their duties ; the artillery and public stores to be faithfully given up, and a proper inventory taken." (c) After the fall of Quebec the war continued for a whole year. On the 8th of September, 1760, Montreal capitu- lated to General Amherst. The capitulation was signed by him and M. de Vaudreuil, the French Governor, and contains fifty-five articles. The first ten of these refer to the possession of the city, the disposition of the troops, the magazines and munitions of war and the care of the sick. The next sixteen are taken up chiefly with the governors and officers of the French King and their conduct to France. The twenty- seventh and the sdven following artcles refer to religion and the religious ccmmuuities. (d) Articles 27 and 28 are as follows : — Article 27. — The free exercise of the Catholic, Apos- tolic and Eoman religion shall subsist entire, in such (f) Miles' History of Canada gives this summary. Vol. I., page 420. (d) It is somewhat reiiarkable that in the 4urrender of Champlain to Sir David Kirkt in Ki'il , the terms of capitulation at Quebec and Mon- treal in 1759-60, the treaty of Paris in ITCc , the Quebec Act in 1774, and the Constitutional Act of 1791, there shoi.ld be assurances for freedom of worship. itttmg EARLY DIVISIONS OF THE CONTINENT — CANADA 255 manner that all the states and people of the towns and country places and distant posts fthall continue to assemble in the churches, and to frequent the sacraments as here- tofore, without being molested in any manner, directly or indirectly. These people shall be obliged by the English government to pay to the priests the tithes and all the taxes tliey were used to pay, under the government of his most christian majesty. Answer. — Granted, as to the free exercise of their religion. The obligation of paying the tithes to the priests will depend on the king's pleasure. Article 28. — The chapter, priests, cures, and missionaries shall continue, with an entire liberty, the exercise and functions in the parishes of the towns and country. Answer. — Granted. The remaining articles are devoted chiefly to different classes of people — French, Canadians, Acadians, Indians and others ; and except the 42nd article are not of great importance. In this article it was desired by the French commander that " the French and Canadian indabitants should con- tinue to be governed according to the custom of Paris and the laws and usages established for this country." The reply to this was that they should become subjects to the king, which reply Attorney-General Maseres interpreted to mean that these subjects were put on the same footing as English subjects generally. Fortunately for the peace of Canada, General Murray interpreted it in a much more liberal sense. Attorney-General Thur' w in reporting on the state of Canada refers to the capitulation in these terms : — *' On the 8th of September, 1760, the country capitu- lated in terms which gave to your Majesty all that belonged to the French king, and preserved all their property, real ^ 11. :i! ^hif i\i .\ ;' nl "i /;f» > li t I 250 GOVKRNMENT IN CANADA. iM i ! m and personal, in the fullest extent, not only to private individuals, but to the corporation of the West India com- pany, and to the missionaries, i)riests, canons, convents, etc., with liberty to dispose of it by sale if they should want to ieave- the countrv. The free exercise of their relij^'ion uy the laity, and of tlieir function by the clerj^y was also reserved. " There are those who think that the law of England, in all its branches, is actually established, and in force in Quebec. * * Others are of opinion that the Canadian laws are unrepealed. * * Others again have thought that the effect of the above mentioned proclamation i 17th October, ITOli] and the acts which followed upon it, was to introduce the criminal laws of England and to coniirm the civil law of Canada. In this number were two persons of great authority and esteem : Mr. Yorke and Mr. De Grey, then attorney and solicitor-general, as I recollect from their report of the 14th of April, 1706. * * There is not, they observe, a maxim of the common law more certain than that a conquered people retain their ancient customs till the conqueror shall declare new laws. To change at once the laws and manners of a settled country must be attended with hardships and violence. * * It is the more material that this policy should be pursued in Canada, because it is a great and ancient colony, being settled and much cultivated by French subjects who now inhabit it to the number of eighty or one hundred thousand." Although Quebec and Montreal surrendered in this way, it by no means followed that Canada had definitely changed masters. The fate of Canada depended upon the termina- tion of the war in Europe. The article, of surrender were the interim terms for the adjustment of an international difficulty, the result of which no one could confidently Si EARLY DIVISIONS OF THE CONTINENT — CANADA. 257 predict. The capitulations were to govern in the mean- time, and both of them refer to the possible contingency of Canada remaining a French colony, {e) Canada was thus dealt with as betn'een two commanders on the field of battle. The consequent occupation was mili- tary not diplomatic. In the same j'ear France and Spain entered into a secret alliance to make war on England, and it was not till 1763 that the definitive treaty was signed that effectually disposed of Canada. In the interval very little alteration was made in the political complexion of affairs. General Amherst, who was the flrst English Governor General, recognized the division of the province into three districts, and left Gen- eral Murray in command at Quebec, General Gage at Montreal, aud Colonel Burton at Three Rivers. The *' new subjects," as the French were called, were tranquil under a state of things which differed only slightly from their former state. Both English and French regarded the military rule as a violation of the terms of capitulation which insured to them the rights of British subjects, " rights by which their persons were not to be disposed of by any but their natural judges with their own con- sent." " It fell out," says Garneau, " tbat when they hoped to enjoy legality under peaceful sway, ihey saw their tribu- nals abolished, their judges expelled, and their whole social organization upset, to make room for the most insupportable of all tyranny, that of courts martial. Nothing did more to isolate the government and alienate the people from it than this conduct, long since repu- diated by the law and customs of nations. Yet the colony (e) The treaty tliat finally adjusted the differences of the French and Ens^lish is called a definitive treaty. m O S.G.C. 18 m } '.;i 258 GOVERNMENT IN CANADA. remained four years under martial law. This epoch in our aanals is designated as the " reign of the 8oldie^y."(/) The military rule continued in effect until atter the publication of the treaty of Paris and was abolished by a royal proclamation dated 17th October, 1763 — an impor- tant state document which will be discussed in connection with the treaty itself. (/) Garneau's History of Canada. Vol. II., paf,'e 309. ^.'^ \A kj l^ & .^1 '.) -^ i^}- r^j VA i)r \ .uX' H) il^v\^^' ^'.rf /! 5^ :K^ \..- J GOVERNMENT IN CANADA. 250 in /) be a ir- on CHAPTER II. THE TREATY OF PARIS. — 1763 TO 1774. 4th section of the treaty — Clause as to religions freedom, opinions — Eoifal p, oclamation of 170'i, islands (fivcn to Nova Scotia, to Newfoundland — Assembly promised — Governors, laws, courts, commissions — Petition for an assembly, politics in England ichen Quebec Act was submitted. By the treaty of Paris, 1763, the seven years' war was ended and the disputes of western Europe adjusted. By it also the war between the English and French colonists in America was terminated. The treaty was concluded on the 10th of February, 1763, and signed by the representatives of England, France and Spain : Portugal assented to it. The fourth section is as follows : " His most Christian Majesty renounces all pretensions which he has heretofore formed, or might form, to Nova Scotia or Acadia, in all its parts, and guarantees the whole of it, and all its dependencies, to the King of Great Britain. " Moreover his most Christian Majesty cedes and guar- antees to his said Britannic Majesty, in full right, Canada, with all its dependencies, as well as the island of Cape Breton, and all the other islands and coasts in the Gulf and Eiver of St. Lawrence, and, in general, every thing that '- I I ^ h M rti IMAGE EVALUATION TEST TARGET (MT-3) 4 /. ^ 1.0 I.I 11.25 Ui |2£ |2.S ''' 1^ 12.2 12.0 1.4 1.6 Photographic Sciences Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14SS0 (716) S73-4S03 iV .^\^ 4 L1? <^ 4 o^ Sf 6^ 1 260 GOVERNMENT IN CANADA. .1 I 4. ^0^ depends on the said countries, lands, islands and coasts, with the sovereignty, property, possession, and all rights acquired hy treaty or otherwise, which the most Christian King and the crown of Franco have had, till now, over the said countries, islands, lands, places, coasts, and their inhabitants, so that the most Christian King cedes and makes over the whole to the said King, and to the crown of Great Britain, and that in the most ample manner and form, without restriction, and without any liberty to depart from the Raid guaranty, under any pretence, or to disturb Great Britain in the possession above mentioned. '* His Britannic Majesty, on his side, agrees to grant the liberty of thr Catholic religion to the inhabitants of Canada : he will consequently give the most efTectual orders, that his new Roman (>atholic subjects may profess the worship of tlieir religion, according to the rites of the Romish church, as far as the laws of Great Britain permit. *' His Britannic Majesty further agrees, that the French inhabitants, or others, who had been the subjects of the most Qiristian King in Canada, may retire with all safety and freedom wherever they shall think proper, and may sell their estates, provided it be to subjects of his Britannic Majesty, and bring away their effects, as well as their per- sons, without being restrained in their emigration, under any pretence whatsoever, except that of debts, or of criminal prosecutions : the term limited for this emigration shall be fixed to the Bp&or of eighteen months, to be computed from tbe day of the exchange of the ratification of the present treaty." This treaty superseded the terms of the capitulation at Montreal, and is to be regarded as of binding authority for all time to come, so long as the law and honour of nations are to be observed. (cof;nizeo\ver to make laws for the "pu')lic peace, welfare and goi)d government" of the inhabitants, as near as may be agreeable to the laws of (/<) See Cavendish's debates on the Quebec Act and opinions of Lord Thurlow and Lord Luu^hbwu*»t. Later on, when Lord Botkingham became minister a second time in 1781) , a resolution was passed that expul- tf,i~i<^i'^\^ sion does not incapacitate a member from immediate re-election. One good resulting from these agitations of the powers of the commons was the publication of the debates in full. In 1771, the house enquired into the unfairness of reports and many printers were imprisoned for presuming to make known the proceedings. After a time the government ceased punishing and silently acquiesced in the publication while retaining a standing order to deal with the question as might be necessary. It was in such times and with these men as rulers, tliat England assumed the management of Canada and its dependencies. 268 OOVERNMBNT IN CANADA. CIIAITEU III. THE grEHKC ACT. — 1774 TO 171H. ViiitionH for the hill, Mr. Mtiin'ren, reports of the dehata — linumhtrica of Qnehrc — l*rovi»ion» an to rfliijionii icor- ship, riril Uiw of Ciinnilii to jtrrvail, crimimtl hiiv of rjuijhtud in j'orvr — tWIiinj iit thr other colouifi in America — (iorernnwnt hif mlrisinij ronnvil, »*<» assembly — Kstahlishment of eottrts, hahean corput — iS'ir (Intf Carleton, eonunixsions isnneil, tli vision of Western Canada, iliseontent nmler the ijovernment, preparations for a ehanye in mode of ijovernment. Attorney-General (afterwards Baro?i) Maseres prepared a draft Act for the government of Canada, but it was deemed unsuitable to tbe needs of tbe people by tbe Gover- nor, Sir Guy Carleton, and was disregarded by tbe Britisb ministry. It was framed on a narrow and injudicious plan practically excluding every Frencbmau from baving any sbare in tbe government. Tbere were at tbis time about 70,000 inlmbitants in tbe colony, of wbom possibly not 500 were Englisbmen. (a) It was unreasonable to suppose tbat tbe rigbts of tbe ancient subjects could be entirely disregarded. Tbe Britisb ministers bad no lack of materia! for tbe Quebec Act. A number of petitions were sent from (a) Tho actual number given ia 3r>0. THC QURDEC ACT. 260 Quebec by the French and KngliHh inhabitantB, and one l)'* the Loudon Board of Trade. Lord North aHHumed the charge of the hill in the comraonH and the Earl of J)art- mouth in the Lords. The dehatea on the paHHa^e of the bill aio reported in a volume of 800 pages and named Sir Henry CavendiHh's Report. (/>) Sir Guy Caileton was examined in reference to the subject of the bill, as was also Chief Justice Hey and one Dr. Marriott. Lord Lough- borough (the solicitor-general), Mr. Charles Fox, Lord North, Edmund Jiurke and many others took part in the discussion. The bill was carried by a large majority — 810 to ns — and became law on the Ist of May, 1775. It begins by reciting the treaty of Paris, 17ealed the proclamation of 1763 and all commissions and ordinances thereunder, referring at the same time to the fact that the civil government so estab- lished was inapplicable to the state and circumstances of the province. It then enacts " That His Majesty's subjects professing the religion of the Church of Home of and in the said province of Quebec may have, hold and enjoy the free exer- cise of the religion of the Church of Rome subject to the King's supremacy declared and established in the first year of the reign of Queen Elizabeth, and the clergy of the said church may hold, receive and enjoy their accustomed dues and rights with respect to such persons only as sbrJl profess the said religion. \ ^ ^ THE QUBBKO ACT. v^fi- " Provided, nevertholess, that it shall bo lawful for Hirf Majesty, his heirs and successors to make such proviHion out of the rest of the accustomed dues and rights for the encouragenieni of the Protestant religion, and for the maintenance and support of a Protestant clergy within the said province, as he or they shall, from time to time, think necessary and expedient." Then follows an oath in substitution of the oath required for Catholics under the Act of Elizabc^^. and which is virtually the present oath of allegiance. 'J! statute im- posed no insuperable difficulty ; it require 1 nil priesta and other ecclesiastical persons to take ^'i oath, but a; the event of their refusing, it annexed no pena(^v beyond the deprivation of their benefi -es or other spir-tu.: promotions. The pext section goes on to confirm all Ills Majesty's subjects (the religious orders and communities only excepted) in their property and possessions and in nil their civil rights, regarding which all controversies bhould be decided by the laws of Canada. The criminal law of England, as well in the description and quality of the offence as in the method of prosecution and trial and the punishments and forfeiture thereby inflicted, was continued in the province. The Act then recited that it would be inexpedient at that time to summon an assembly and so made provision for a council not exceeding 23 or less than 17 which might make ordinances with the consent of the Governor ; depriv- ing it however of any authority to levy taxes excei)t for roads or public buildings. A few unimportant provisions followed as to the passing and approbation of tbese ordinances, with an e\i)r(ss clause that no ordinance respecting religion was to be in M'^ 272 GOVERNMENT IN CANADA. force without His Majesty's approbation. There was also a saving clause as to the right of the crown to establish civil, criminal and ecclesiastical courts. The Act closes with a declaration that all Acts of parliament in reference to the trade and commerce of the American plantations are in force in the province of Quebec. This Act was passed in June 1774, but the revocation and annulling of the commissions and ordinances under the royal proclamation were not to take effect till the 1st of May, 1775. It will be seen that the Act was framed largely to meet the wishes of the French Canadians. It was directly opposed to a number of petitions from the English inhabi- tants of Quebec and their friends in London. It was opposed also to the arguments, reports and letters of Mr. Maseres, who had left Canada in 1769, and who was the warm though injudicious advocate of the cause of the minority in Canada, (c) A few months after the Quebec Act was passed the first symptoms of the American revolution appeared ; the Act itself was pointed at by the other colonists as an indication of the injustice of the mother country. The principal features of the Quebec Act are the enlarg- ing of tlie boundaries of that province, the re-introduction of French or Canadian law and the recognition of the Catholic Church. The criminal law of England was retained. No assembly was granted, but in its stead an advising council. The province of Quebec as enlarged by this Act included not only Ontario and Quebec as they now exist but five (c) The reader will find a full account of " The proceedings of the Hritish and other Protestant inhabitants of the province of Quebec in North America, in order to obtain a House of Assembly in the province " in a book so entitled, a copy of which is in the Toronto Public Library THE QUEBEC ACT. 273 states of the American union and part of a sixth viz., Ohio, Indiana, Illinois, Michigan, Wisconsin and that portion of Minnesota north of the Mississippi river and east of the meridian line passing through the source of that river, probahly the 95th degree of longitude west from Green- wich. {(I) The other features of the Act, especially ns regards the civil law, were fruitful sources of discontent in the pro- vince. In 1775 the American congress addressed a proclamation to the Canadians asking them to seize the favorable opportunity presented to them " to play their part in the glorious conquest of American independence." Delegates, among whom was the celebrated Dr. Franklin, were sent as commissioners to incite the people against their new rulers and to join in the revolution. " The Canadians could not but remember," says Garneau, speaking of Franklin, " how eager he was to stimulate the British people to make a conquest of their country some 15 years before. He soon perceived that the quest he was sent on would prove bootless." The council on account of the war did no business in 1776, but there was a session with closed doors in the following year; twenty-three members were present, lifteen English and eight Canadians, and was taken up chiefly with applications on personal business. The first ordinance passed under the Quebec Act is dated February 1777 ; it establishes the civil courts of judicature in the province ot Quebec. The province is divided into two "reat districts named Montreal and li i 111 m {(i) As settled by the judicial committee of the privy council in the Ontario Boundary Case. o's.o.c. 19 274 GOVERNMENT IN CANADA. Quebec and a court of common pleas established in each. An appeal lay from these courts to the court of appeal, which was composed of the Governor in council or chief justice presiding, and at least five members of the executive council. An appeal lay from this court to the privy council in England. Other ordinances regulate the procedure in the courts, the establishment of a court of king's bench for criminal justice, and matters varying from the regula- tion of the rate of interest, the conduct of sales, the weight of bread and the sale of liquors, to the provincial currency and the formation of a militia. In 1776, a difficulty arose between C. J. Livius and Governor Carleton which led to the resignation of the former. The question was as to the constitution of the privy council and the irregularity of proceedings in the province. Tlie result was that after addresses and peti- tions the chief justice, though exonerated, refused to return to Canada. One effect of the American revolution was an Act passed in the eighteenth year of Geo. III., and which is suffi- ciently indicated by its title. It was " an Act for remov- ing all doubts and apprehensions concerning taxation by the parliament of Great Britain in any of the colonies, provinces, and plantations in North America and the West Indies ; and for repealing so much of an Act made in the seventh year of the reign of his present Majesty, as im- poses a duty on tea imported from Great Britain into any colony or plantation in America, or relates thereto." In 1778 Sir Guy Carleton, feeling aggrieved at not being appointed to the place accorded to General Bnrgoyne in the colonial command, retired and was succeeded by General Haldimand. He was enjoined by his commission to proclaim in the colony the writ of Habeas Corpus, and THE QUEBEC ACT. 275 he was forbidden even in time of trouble to confine any subject without the advice and approbation of the legislative co*incil. But Haldimand was an old soldier imperious and severe, and believed he could maintain obedience only by inflexible rigour, and the result was that he imprisoned citizens by the hundreds without distinction and whether they were innocent or guilty, (e) His last oflicial act was in 1785 to publish an ordinance under autbority of an Imperial Act of the previous year introducing the writ of Habeas Corpus such as it is in England, and it is in virtue of this that the Act is still in force. The term of othco of this military governor was not witbout some points of interest. He caused a census to be taken in which the population in 1784 is put down at 113,032. He had a dispute with an ancient subject Du Calvet, as his prodo- cessor had with a former chief justice, and a violent and acrimonious controversy about the administration of justice. (/) In 1780, General Carleton under the title of Lord Dorchester returned to Canada as Govornor-fiencral, and shortly afterwards took the title of vice-admiral which is still retained. He appointed committees of enquiry into the state of the laws of commerce, of police and of education : and the information received in this wav laid the foundation of the Con^.titutional Act of a few years later. The Governor turned his attention io the western part of his province. What is now the province of Ontario had received a I;irge accession to its numljers by the influx of the New England loyalists. In 1788, he divided m (e) Ro it is stated by suvenil writcrn ; some say timt the first Act of Henry Hiimilton, the successor of Ilaldimiind, was tlie ptiblicatiunof the introduction of Habeas Coriuis. (/) For a very fair epitome of l)u Calvel's propositions sec Dm-.tre and Lareau's History of the French law. Ciarneau is very full on the same subject. if 976 OOVERNMENT IN CANADA. the country into five districts which may be roughly set down as follows : From Lancaster west toGananoque, West of this to the river Trent, AVest of this as far as Long Point, on Lake Erio, All the remaining part of what is now the province of Ontario, South of the St. Lawrence and east of Cape Chat. lusenburo. Meciilesbiko. Nassau. Hesse. Gaspe. The Council during the ten j'ears since his last term of office had been of little account, and all parties wore now looking to England for a constitutional form of government. The II((liC(i8 Corpus Act had been a great step in introducing English law, but a large majority of the council presented an address to the King, praying that hu would maintain intact the Quebec Act. This was in 17H4, and the English government thought the country was not yet in a lit state to elect members to a popular assembly. The people, however, proceeded from petitions to demands, and the most conllicting views reached London es to what was the best form of government for Canada. Tl;e British ministry directed Lord Dorchester to collect information and report on the state of the colony. As may be expected, this was not obtained without great difference of opinion. There were reports on the administration of justice, on trade, on the manner of holding landed jiroperty, on edu- cation and on other subjects. There was a difference of opinion between the chief justice and a former attorney- general, M. Maseres, as to whether the English laws were in force, though the chief justice found himself in a minority. The view was presented that the English laws generally were not binding under the statutes. THE QUEBEC ACT. 277 The reports of the several committees were sent to the ministry in Enpfhind, though it was over two years hefore the Act was taken into consideration. In 1789, Lord Grenville, as colonial minister, sent out a draft constitution to Lord Dorchester in order to get his advice and suggestion?. The Governor reported against the division of the province of Quebec, but, aa will be seen, the English ministry deemed it advisable to separate the two races. The Quebec Act, as a charter of government, was in force about sixteen years ; the next change was the Constitutional Act of 171)L 1 lip Si M 278 GOVERNMENT I» CANADA. ^ /V^^ CHAPTER IV. THE DIVIDED CANADAS. — 1791 TO 1841. Petitions prcccdiiKi this Art, Mr. Lyuihinjcr's desire to repenl Quebec Act, for a iieic constitution, for one province — Enfflish pojndation, disnpjiointment — Kini/'s inessd e, principid parts of the Act, ilirision into Upper and Lower Canada, lerjislative connril and Icfiislatire assenddy for each, courts, tenure of land, reservation (f certain hills, clertjy reserves — Provisions for Protestant clenjy, for Roman Catholic clerfiy, tith>-s — Discontent, cimncillors, governors, suspension of constitution in Lower Canada, rebellion — Reports, Lord Durham. What Mr. Maseres did for his friends in 1774 Mr. Adam Lymber<;er did for his iu 1791. Thhs gentleman was the agent for the English colonists and appeared in their l)ehalf before tbe bar of the house of commons. When the bill was introduced, he desired a repeal of the Quebec Act ; he opposed a division of the province and he asked for a new constitution " unclogged and unembarrassed with any laws prior to it." He considered that the Erench Canadians being over thirty years under British rule had an oppor- tunity to acquire more of th.e customs and manners of his constituents, and that therefore having studied the ICnglish •onstitution and its laws they were able to appreciate them. He put forward witli great eloquence the claims of the loyalists of 1785. He considered it the duty of the .i THE DIVIDED CANADA8. 279 government, in kindness to its subjects to weed out gently and by degrees, certain prejudices of tbe French Canadians. He inainuited that the government was formerly misled by the French Canadians and their petitions when the Quebec Act was passed, and having glanced at the uncertainty of the laws in force, requested the introduction of the laws of England with some variations that occurred to him as being best for all parties. In fact he supplied to Mr. Fox and others of the opposition a great part of their arguments as far as they opposed the bill. Compared with the opposition used against the passing of the Quebec Act he was consistent and reasonable. The English colonists had increased to about 100,000 — the French numbered 225,000, — so that it was not the claims of a few hundreds he was putting forward. He did not ask, as the Maseres party did, that the French should be excluded from all othces and all representation in the assembly and council. He objected to two legislatures and to the division of the provinces, though it was specially asked that the common law of England should be the rule in what was afterwards Upper Canada, in case a division were made. The chief object was undoubtedly to get a repeal of the Quebec Act and of all the laws under it. It cannot be said that Mr. Lymberger was successful. Mr. Pitt's government divided the province — it did not repeal the Quebec Act, it gave no new constitution, but allowed each province to deal with that question within its own boundaries. In February 1791, the King sent a message to the house of commons to the elfect tbat a division of the province of Quebec was for the benefit of his subjects, and that one part be named Upper and the other Lower Canada ; he recommended a permanent appropria- tion of lands for the support and maintenance of a Protestant clergy, "and it is His Majesty's desire that ^fl ^' 11 i^t m I '1 it It 280 OOVERXJfEST IN CANADA. such provision may be made with respect to all future grants of lanil within the said provinces respectively, as may best conduce to the same object," consenting that the house may make regulations therefor. The bill was prcsente*! within a few days of the message and in the month of March the petitions against it were heard and the discussion upon it took place. The Bill passed into law on the 10th of June 171)1, and is entitled " An Act to repeal certain parts of an Act passed in the 14th year of His Majesty's reign entitled 'an Act for making more effectual provision for the government of the province of Quebec, in North America,' and to make further provision for the government of the said province." The 1 -oamble of the Act recites that the Quebec Act was in many respects inapplicable to the present condition and circumstances of the province and that further provision was necessary for its good government and prosperity. It then repealed that portion of the Act relating to the appoint ment of u council having power to make ordinances for " the peace, welfare and good government of the province," and proceede) This reservation was abolished in 1840 and the provisions as to parsonages and incumbencies were repealed in 1851. ^ 'it Provision was made in regard to the lloman Catholic clergy, continuing and enforcing "their accustomed dues and rights with respect to such persons only as should profess the said religion," as declared in the Quebec Act, and in pursuance of the instructions to Sir Guy Carleton and Sir Frederick Hamilton, two of the previous Governors. The instructions were to protect Protestants from being liable to pay tithes for the support of the lloman Catholic clergy. The Act of 17t)l applied their tithes to their own clergy. Tithes were enforceable in Upper as well as in Lower (/f the Point au Haudet, in the limit between the townsliip of Lancaster and the seigniory of New Longueil ; running along the said limit in the direction of north. 'M degrees west to the westermost angle of the said seigniory of New Longueil ; thence along the north-west boundary of the seitjniory of Vaudreuil, running north 25 degrees east, until it strikes the (,)ttawa river ; to ascend the said river into Lake Temiscaming : and from the head of the said lake by a line drawn due north until it strikes the boundary line of Hudson's Bay ; including all the territory to the westward and southward of the said line, to the utmost extent of the country commonly called or known by the name of Canada." THK niVIDED CANADA8. 288 a speaker and of the lan{:;tia(;o of tho houHe, and it roHiiltcd in a comproniiHe, the adoption of hoth hinguageH. M. Panel was the speaker at Quebec, Mr. McDoncll at Newark. The Beat of government in Upper Cana(hi remained at Newark for three years, and in 1791) it was removed to York. Mr. ^Filos writin{? of the .^ct of 1701 snys : " The first 15 or 10 years' experience of the new consti- tution was rather encouraginp; as those concerned in working:; it out during that period exerted tliemselves in keeping out of sight the causes of discord. Tlirough tho accession of ot!ic(?rs of the army and disbandod sohliers, as well as the intlux of iunuigrants from the British Isles, the population increased rapidly, especially in r|)per Cana(hi, where it exceeded 80,000 in the year 180/5. Jiut, as has been already mentioned, the constitution of 17!>1 did not secure the extinction of former causes of dissension, while it introduced new elements of discord. In each province there was ci'eated an irresponsible body, which the Ciovernor or Lieutenant-CTOvernor was empowered to establish under the title of an crerKtive cniinril, and which was in fact, constituted by the selection chieHy of members of tho legislative council. Home were judges and men receiving salaries as public officers. In Lower Canada in addition to the fact that legislative councillors and paid pul)lic officials formed the great majority of the executive council, natives of the province were very seldom admitted, nor, as respects religion, were the lloman Catholics represented, although a seat was conferred on the chief i)rotestant ecclesiastic while the members of his communion did not form one-twentieth part of the population. These circum- stances, so opposite in principle to the poiicy of represen- tative government which has since prevailed in Canada, gave much otfcnce to the majority of the inhabitants and ■'I i ■li-:l '# I 284 (JOVKUNMKNT IN ('ANADA. rt'inurt'd harmony impossible. Former ft'clinRs of njiiino- »i!y were revived," III liower CiidikIii, niso, the popnhir representation re- gulted (jeiierally in the exchision of KM;,'lislimen ; the h-^^is- lature and executive eouncils as generally exchided Freneh- inen. The governors iiad the eouneillors on their side and had the popular party against them. In this state of aflfairs as early as 1H()(> it heeame almost impossible to govern the province. The war of 1812-14 turned the attention of all parties to the external enemies; hut after it was settled, (el the former dilticuMies presented tliein- selves and new causes of strife were iiit'"0(liued. It was soon evident that, notwitlistiindinj^ the ample luacliinery of (government provided by the Act, the people were not in possession of the controlling power. The power was centred practically in the governors iind their execu- tives. In the eastern province the disputes between the elected and the nominated branches of the legislature begun early ; but the sister province had grievances that culmi- iiateil about the same lime and in the same way — in rebellion. The struggle in both was for the same objects — for responsible government — for liberty to enact laws in accord with the popular wish — for restraining the power of irresiwusible governors. [/) in By tlie treaty of Ghent, 8:t,'ned December 24, 1814. I /i Asrefiards tlie i>rivile(,'es of the Houses of Parliament or Assemblies under the constitutional Act of 17itl, a few cases ajiijcar. In IHI'2, Mr. McDonell. member for Glen;4arry, complained of a breach of i)rivile;»e inasmuch ns that the Dei)Uty Clerk of the Crown issued a writ to have hioi ai rested ; freedom from arrest of a member was claimed The offeudin^: attorney was dismissed fromoflice but was almost immetliately reinstated. In the same season Mr. Nichol was arrested under the speaker's warrant and committed to uaol. hut the Chief Justice had him set at liberty. The Assembly then turned its attention again a<>ainst the Chief Justice and f;ave vent to its feelings by i>etitions to the throne, which the Adnural Major-General Brock assured them would be laid before the Prince Rei:«nt. So other encroachments on the privileges of the members arose till 182B, when the Adjutaut-Geueral of the .Militia and the superintendent THE DIVIDKI) CANADAH. 286 Th(.' variouH RovernorH Imd resorted to the conKtitutioniil renietly of (lissolviiiir tho h^f^iHliitures when their proccecUni^rt Vile (liHtnHtefiil to thetn. The result was that they ren- dered theniHelvesand their eouncillorH extremely unpopular. H7,()()0 persons petitioned for tho removal of Lord Dal- housle : '24,000 isif^natures were sent for the removal of Sir John C'(»ll)()rne. In IHIU, ninety-two resolutions were sent from thn lower province, w ith the effect that a comniiHsion was appointed to report on tlio atVairs of that province. In 18H:- high commissioner was sent from Huf^land to tho uppe. province. This was Lord Durham, whcso report is one of the features of our constitutional history. ( ;/) Tho outcome of these reports was that the two provinces, after a separation of half a century were aj^ain united. Tho population at that time may ho rou<^hly set down at onu million almost equally divided in race and relif^ion. of Indian affiiirs put tluMust'lvcH in c()nt(iini>t by not iii)))i'arint; before tlio Har of the House. Kotli of these were fonnd ^^niltv. anil warrants wero issued for tlieir arrcfst, under wliieli tliey remained tliree days in prison wliun the prorogation of tlie House set thenn at li))erty. Sir l'er<'t;rini! iMaitland, in otiicial ianu'ua^je declared tiiat on all future oocNisions if the propriety of this j)roc«'edintJ is oontirnied by His .Majesty, "no one wili))e more ready than himself to reco^jnize the privilet;e in question and to en- force its observance Ijy all whom it is his duty to control." Ifeiiry .John Hoi'.lton. Solicitor-Clenoral, fell under the displeasure of the House in re- fusing to answer certain ipiestions put to liim by a committee. He was lidnKunslie'l and discharged In the followini; year Mr. (afterwaids Sir) Allan ISIcNab liavint^ re- fused to answer certain ipiestions was <'omniitted to tjaol. This case was brou^jht into the Courts ami Chief .lustico Itobinson upheld the committal. The Le^'isiature of the L')wer I'rovince was not behindliand in assert- ing like powers and privile;^es. As early as the sec^oml year of tho Con- stitution (ilikecasetothat of ^Ir. McDonell as to freedom from arrest arose in the case of Mr. .lohn Yount,'. He was arrested and reported the in- ditjnity to the Hoiisi' of Asseniblv. The House declared that tlie arrest of one of its mt^nbers was a direct violation of one of its undoubted rij^hts ; aijolo'tiy was demanded 'rom the sheriff and inserted in the jour- nals of tho Assembly. The sheriff and his bailiff a))))eared at the Har of the House and satisfied the wounded honor of Mr. S'ounji. In a 8u))sci{uent session certain members objected to serving on a jury panel, and the House absolved them from it. They expelled one member who was convicted of the crimt; of conspiracy, and anotlier charged with perjury. Tho Le),'islative Council was held by the court to have the ri^ht to commit for publication of libellous matter. (fr) Mr. Mills liaa said of it that "it laid the foundation of the political success and social prosperity not only of Canada but of all the other important colonies.' ' •'K' tH-d m 286 GOVERNMENT IN CANADA. i. ^^ CHAPTER V. THE UNITED CANADAS, OTHER COLONIES. — 1840 TO 1867. ^^^ Lord Durhayn's report, recommendations — Act of Union, one Icijislature, two houses, legislative council, legislative assemhhi, duration, speakers — Governort:, pioivers, laivs continued — Amendments, elective councillors, scat of government — Former governments in Nova Scotia, in N>uv Brunswick, in Prince Edwaru ^-:land, in British Gohimhia — Conventions at Charlottetown, at Quebec — Confederation. The year 1841 marks the beginning of representative government in Canada. The Act of Union passed in the preceding year was founded on the report of Lord Durham, and it not only established a new order of things for Canada, but also served as a model for colonial govern- ment generally. It recommended that as far as possible the colonists should be allowed to govern themselves, that they should make and execute their own laws, that the provinces should be united, and that the races and districts should be represented in one legislature. It looked lorward to a complete system of municipal institutions and to the independence of the judges. All provincial officers except the Governor should be responsible to the people and all questions of internal goverment dealt with by the local legislature. Trade, foreign relations, the disposal of the public lands and the constitution of the country he recom- 1 THE UNITED CANAi>A8, ETC. 287 ijended should be left to imperial management ; the law as it stood in regard to clergy reserves should be repealed. The prospect of a union of the other provinces was fore- shadowed, but, it was a legislative rather than a federal union. Though all the recommendations of the dis- tinguished commissioner were not carried into effect by the subsequent Act of Union, it embodied the chief features of the report. The Imperial Act, 3 and 4 Vict., cap. 35, came into force in 1841 and declared that the provinces of Upper and Lower Canada should by virtue of a proclamation form one province to be called Canada. One legislative council and an assembly were constituted, to be called " The Legislative Council and Assembly of Canada " ; and within the pro- vince her Majesty, by and with the advice and consent of this body, was empowered to make laws for the peace, welfare and good government of the same, such laws no*; being repugnant to such portions of former constitutionnl Acts as remained unrepealed. Legislative councillors, not fewer than twenty, were to be appointed. They were required to be of the full age of twenty-one years and natural born or naturalized subjects of her Majesty. They held office for life. Provision was made for vacancies by resignation, absence, adhesion to a foreign state, bankruptcy, etc., leaving the trial of any ques- tion on these points to the Goveinor and the council. The Governor appointed the speaker and might remo\e him and appoint another. Ten members, including the speaker, formed a quorum, and when the voices were equal the speaker had a c?,sting vote. The assembly was summoned by instrument under the great seal in the Queen's name. The legislative assembly was composed of an equal num- ber of representatives from Upper and Lower Canada — 288 GOVE.;NMENT IN CANADA. ..I:' fort3'-two from each province. Power was given to alter the representation by a two-thirds vote in each house. The qualifications of a member were limited to property in free- hold land to the value of five hundred pounds over and above any charges on it, and provision was made in regard to elections, vacancies, etc. Every assembly continued for four years, unless sooner dissolved, and a yearly session, as obtains at present in the Dominion parliament, was necessary. The members elected their own speaker and twenty members, including the speaker, formed a quorum for the exercise of the powers of the assembly. He had a casting vote as the speaker of the other chamber. The powers, authorities and functions of former governors so far as they were not repugnant to the Act, were vested in the governor with the executive council, or in the gov- ernor alone where "the advice, consent, or concurrence of the executive council is not required." All existing laws were to remain in force until altered ; and all courts of jus- tice, commissions, powers and authorities of officers, judi- cial, administrative or ministerial were continued as if the Act had not been passed. This is the substance of the Act, as far as it need be referred to. A clause requiring that all writs, proclama- tions and instruments for summoning or proroguing the assembly, or writs or summons in relation to elections and other public documents should be in English was subsequently repealed in 18-18. The only substantial addition to the Act was passed in 1854, by which power was given to the legislature of Canada to alter the constitution of the legis- lative council so as to make it elective, and to repeal or vary the property qualification of members of the assembly. In pursuance of this statute, the provinces were divided into 48 electoral districts with one representative councillor for each, twelve to retire at the end of every two years. / r '^^ m IH^> THE UNITED CANADAS, ETC. 289 The seat of government was, up to 1844, part of the time in Toronto and part in Kingston ; it was located afterwards in Montreal, but in 1849 the assembly sat alternately in Toronto and Quebec until the provinces were united in 1867. Lord Sydenham was the first Governor-General under the Union Act and Lord Monck the last, (a) The other provinces may be conveniently referred to in this place. The Treaty of Utrecht signed in 1713 has alrea^^y come under the attention of the reader. By it Nova Scotia was formally ceded by France to England. It was called Acadia by its former owners and included New Brunswick until the year 1784. Cape Breton remained a possession of France after the Treaty of Utrecht, but came under British rule by the Treaty of Paris in 1763. Three years later it was annexed to the government of Nova Scotia, br.L together with New Jirunswick was separated from it in the same year. In 1820 it again returned to its former partner and remained a part ot it until confed- eration. Nova Scotia during the first half century of British rule contented itself with a Lieutenant-Governor and a council, but in 1758 a constitution was granted to it and a legislative assembly of 22 members provided for. This form of government lasted until the year 1838 wben a separation was etfected between tiie legislative and the executive authorities. After a lapse of ten years, a limit was placed to the number composing the assembly — 38 being allowed ; and under this form of government the people of Nova Scotia entered the union in 1867. New Brunswick after her separation from Nova Scotia in 1784, was governed by a Lieutenant-Governor with a (a) Lord Monck was also the first Governor-General of the Dominion of Canada. The Governors after Lord Sydenham were Sir Charles Bagot, Lord Metcalf, Lord Cathcart, Lord Elgin and Sir E. W. Head. O.'s.G.C. 20 290 GOVERNMENT IN CANADA. council of 12 members possessing legislative as well as executive functions. In 1832 this anomaly was removed and New Brunswick entered the union in the same way as her sister province. Prince Edward Island was known as 8t. John under the French rule; the English took possession of it in 1758. By the Treaty of Paris it fell to the English and was assigned to the government of Nova Scotia, where it remained until 1769. It then separated from that province and so remained up to the date of its admission into the union in 1873. It was provided with a constitution and has had a government similar to that of the other mari- time provinces, {h) British Columbia and Vancouver's Island were formerly part of the Hudson Bay Territory. The latter in 1848 was assigned to the company for ten years, and about the end of that time it and the mainland were taken away from the Hudson Bay Company and formed into separate colonies. In 18GG they were united under one adminis- tration. Previously in 18()3 a royal governor was sent out and a government formed, one half of the advising council being composed of government officials and the other half elected by the people of the colony. 'Wmm'' Manitoba and the North- West Territories had no separate political existence before forming part of Canada. They were portions of Prince Rupert's Land ceded to Canada by the home government. (/;) The Governor of Canada was Captain General of British America, but (lid not interfere with tlie administration of the other colonies. These were presided over by what were called lientenant-tzovernors, thou}»h they were jiovernors in evurythin>^ but name, bein'^ commanders- in-chief within their provinces and taking precedence next after the Gov- ernor of Canada. THE UNITED CAXADAS, ETC. 291 The project of uniting the colonies of British North America is one that dates back to the first years of tlie century. It was not uubeanl of before Lord Durham's time. In 1800, 1814, 1822 and 1825 there were projects of a union and the idea revived in 1857. Nova Scotia took the first legislative step by a resolution in 1801. A conference of the maritime provinces was arranged early in 1804, and towards the end of the year delegates from the Canadas joined the eastern delegates at a convention in Charlottetown. Newfoundland was not repre8ent V-/ ^ a c A, ~A}^ \L ii^-tTf^J a^^t GOVERNMENT IN CANADA. 293 CHAPTER YI. CONCLUSION. The constitution under which we in Canada live and are governed is a new departure in the history of colonial government. We have ^lanced over the various experi- ments made by the provinces now composing the Dominion of Canada in the solution of satisfactory government ; and they are generally seen to be composed of a governor, a legislative council and a legislative assembly for each colony or province. Most of these colonial possessions were heretofore outlying fragments of the empire, with no cohesion and no nationality, with nothing in common except the tie to the mother country. The scheme of uniting the provinces had been long in contemplation. It was felt that at least everything which they had in common might well be decided in one central legislature ; and that if one body could not direct all the aflfairs of the different provinces, it could manage such interests as were not antagonistic. There was at hand as evidence of the success or at least the possibility of a federacy, the example of a great and prosperous republic, where each state managed its own local concerns, but delegated certain powers to a central govern- ment, to be held and exercised by them in trust for the whole union. There were, on the other hand, the traditions of the government of Great Britain, which are the inheri- tance of her present and past colonies. The present 'I 'i m Illj ■ :!: s . it i 3 . I ! lit I 4 i 294 OOVERXMEXT IN CANADA. constitution is the result — the unintentional result, per- liaps— of a federal system souaewliat analogous to that of the United States, so far as the distribution of legislative power is concerned, and yet very different from it in the underlying principle of its constitution. Like the states of the Union, the provinces of the Dominion are united for some purposes and separated for others. There is a federacy — a union for matters of general and, one might say, national interest ; there is a separation for matters of local or internal interest. The fact that the constitution of Canada provides one central government for all the provinces and a local one for each of them, as in the United States, and also that the constitution is in principle similar to that of Great Britain, makes the study of the government in each of these countries necessary to the Canadian student, (a) Canada, considered in point of territory, has a good deal of similarity to the Unite^l States ; and it cannot be said that in copying the constitution of that country to the extent that she has done, any mistake was committed. Local concerns in a large country are managed most satis- factorily by local administration. It is true that Canada, with a population somewhat exceeding that of the city of London, has a system of governments as elaborate as that of the United States for a population of ten times that number. We have a central government with powers largely in advance, comparatively speaking, of that at Washington ; and we have provincial governments which, even if their limits are narrowly hedged in, are yet each year asserting the necessity of their exis- tence by volumes of statutory enactments. If this leg- (a) The full text of the United States Constitution is given in the Appendix. CONCLUSION. 295 ibiation be all necessary, and it must be assumed tbat it is, the central government mi^bt sit at Ottawa all the year through and not do one-half of it at all — and i)robably not do a tenth of it sufficiently A house of over '^00 members is cumbrous nuichiner}' for le<:ji8latinr; on any subjects, but totally inadecjuate for the local ctmcerns of remote provinces. The i)rovinces are too scattered and their interests too diverse to admit of the possibility of legislatiuf; for all the ordinary means of two houses of parliament. The members may understand the legislation proposed or needed for their own province ; but they could not be expected to fully understand and be interested in the legislation needed a thousand miles off. A little consideration will show that the people of the Dominion cannot be legislated for in the same way as live or six millions of people may be in a thickly settled or con- fined district. There is a strip of the broadest part of the continent extending from ocean to ocean. There are ditferent modes of life among its inhabitants — in Nova Scotia, in Manitoba, in British Columbia — each re(iuiring special local legislation ; different customs, races and religions even in the twin provinces of Ontario and Quebec, different features everywhere. The complex system of government that obtains amongst us must therefore be regarded as a necessity : we have the territory if we have not the population to justify its exist- ence. It is some consolation, however, that when our provinces and territories number a great many millions more than they do at present, the constitution supplies ample machinery for their government. m •(fi '^TH THE END. 296 APPENDIX. APPENDIX. r 'it' ii '' CONSTITUTION OF THE UNITE I STATES. Thf (.'onxtitation framed for the I'nited Stuti's of America, hij a Conrenliun o; lU'pnties from the Statm of Seir Hampshire, Mamachunelts, Couitfcticut, AVir York,Seic Jeriiey, Pennnijlrania, helairare, Maryland, Virginia, Sorth Carolina, South Carolina, anii (ieorgia, at a seggion heijnn May 25th and ended September 17, 1887. We, the i)eople of tlie United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the coniinon defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America. ARTICLE I. SKCTION I. All Legislative powers herein grantetl shall be vested in a Congress of the United States, which shall consist of a Senate and House of Repre- sentatives. SKCTIOX II. 1. The House of Representatives shall be com|)osed of members chosen every second year, by the i)eople of the several States ; and the electors in each State shall have the qualifications retjuisite for electors of the most numerous branch of the State Legislature. 2. No person shall be a Representative who shall not have attained to the ago of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant ot that State in which he shall be chosen. 3. Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free jjersons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States ; and, within every subse- quent term of ten years, in such manner as they shall by law direct. The APPFNDIX. 297 number of KepreHeiitativeB Hhall not exceed one for every thirty tliouHand ; but each Ktato hIwiII liavo at IciiHt one UeiircHeiitative; an(l, until Huch enumeration Bhall be made, the State of New IIani|)HhireHliall be entitled to chooHe three; MuHaacliusettH, ei^lit ; Rhode iRland and I'rovidence I'lantatiouH, one; Clonnecticut, Ave; New York, nix ; New .lerHty, four ; PeiuiBylvania, ei))ht ; Delaware, one ; Maryland, nix ; Virginia, ten ; North Caiolina, five ; South (Carolina, live ; and Georgia, three. 4. When vacaiiciea hap]ien in the representation from any State, the executive authority thereof hIirU iHHue writs of election to till HUch vacancies. r>. The House of Representatives shall choose their speaker and other ofticers, and shall have the sole [wwer of impeachment. SKCTION HI. 1. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote. 2. Immediately after they shall be assembled, in consequence of the first election, they shall be divided, as equally as may be, into three classes. The seats of the Senators of the first class shall be vacated at the exj)iration of the second year ; of the second class, at the ex|nrRtion of the fourth year ; aJid of the third class, at the expiration if tlie (tixtii year ; so that one third may be chosen every second year. And if vacancies happen, by resijjnation or otherwise, during,' the recess of the Legislature of any State, the J']xocutive thereof may make temporarily uppointmei:t until the next meeting of the Legislature, which shall then fill such vacancies. 3. No person shall be a Senator wlio shall not have attained to the age of thirty years, and been nine years a citizen of the ITnited States. and wlio shall not, when elected be an inhabitant of that State for which he shall be chosen. •1. The Vice-President of the United States shall be President of the Senate, but shall have no vote unless they be e<|ually divided. 5. The Senate shall choose their other officers, and also a President pro-tempori' in the absence of the Vice-President, or when he shall e.xercise the office of President of the United States. 6. The Senate shall have the sole power to try all impeachments. When sittin<» for that purpose, they shall be on oath or attirmation. When the President of the United States is tried, the Chief Justice slnill preside ; and no })erson shall be convicted without the concurrence of two thirds of the members present. 7. Judgment, in cases of impeachment, shall not extend further than to removal from office, and disqualification to hold and enjoy any ofiiice of honor, trust, or profit under the United States. But the i)arty convicteil shall, nevertheless, be liable and subject to indictment, trial, judgment and punishment, according to law. 'I SECTION IV. L The times, places, and manner of holding electionp for Senators and Representatives shall be prescribed in each State by the Legislature 299 APPKNDIX. ;3 f I thereof; bat the Cniif^rcHK may, at any time, l>.v Itiw, imiki! or alter hiicIi retjnUtioim, except an t.i the placeH of cliiM)HiM^' ^clllltljl'H. 'i. Tlio CoiiurertH hIihII iiHmMiihlc tit IciiHt mice in every yt'iir ; imd hucIi metftin^HHlinli Ik- lield on the (irst Muiiday in Deetinher, mih'SH they slnill, by Ltw, H|i|>(iiiit a (iitTereiit day. SKI'TION V. 1. Ktich IIoiiHo sliiill hj the jud^io iif tlie elections, retnrnH, and iiniilili- CJitionH of its own members ; and a untjority of each nliall l)econsidi reel a auoruin to do hiiKinesH; hiif a Hnuiller nninher niiiy adjonrn from diiy to ay. Hiid may btt antlmriztMl to compel the attendance of absent memi)ers, in sucli manner aneacc, be privile),'ed from arrest dnrmt" their attendance at the session of their respective Houses, and in t^oinj^ to and returnint! from the same : for any speech or debate in either House, they shall not be quc-sti(jnell otVice, under the authority of the United States, whicn shall have been tioated, or the emoluments whereof shall liave btvn increased, duri'it^ sucis iime; and no person lioldin<5 any office under the I'nited States sha'I br a member of either house durint; his cxjntinuauce in otiice. SECTION Vli. 1. All bills for raisinj* revenue shall originate in the House of Repre- sentatives; but the Senate may propose or concur with amendments, as on other bills. 2. Kvery bill which shall have passed the House of Representatives and the Senate shall, before it becomes law, be presented to the Presi- dent of the United States. If he approve it, he shall sij^n it ; but if not, he shall return it, with his objections, to that house in which it shall have originated, who .shall enter the objections at lart^e on their journal, and proceed to reconsider it. If after such reconsideration, two thirds of that house shall agree to pass the bill, it shail be sent, together with the objections, to the other House, by which it shall likewise be reconsidered : and, if approved by two thirds of that House, it shall become a law. ; APPENHIX. 20! > Hut in ull Hueli cdHfis tlu' voti'Hof butli llnurtcH hIiiiII biMlf'termiiicil liy yoiiH find iiKyH ; and tlin 'ii'iicn of tin- porMoim vi)tiii){ for iiinl iiuaitiHt tlic hill, hIihII 1«j iMitcri'il on i' ! journiil of i-iicli House rcHiu'ctivcly. If imy hill hIiiiII not he rfturn<'(l hy tlw I'rcHidcnt within feu iJiiyH |Sundiiyx»'Xi'('|iti>d) lifter it xiiiill inive Ix-en presiMitcd to liini, tlie Hiiiue nIuiII hu ii liiw in liko nninner hh if he IukI Hi^ned it, uuIchm tiii' ( 'nnynsH hy their iidjourninent, prevent itn ruturn ; in which (mhi> it Mlnili not he a law. H. Mvery order, rcHolution, or voto to which the concnrronro of tlio Senate and Houhc of Hepre.-ient»ti\cK nniy he necessary, (except on a ipu'Htion of adjonmnient.) hIwiH he prewented to the rrcHident of the I'nited Htutec, and. hefore the sanw hIuiII take effect, nhali he ii|iproved hy hini, or heint! diHapprovcd hy him, hIuiI! he re-|iaKi-'('d hy two tliinis of tho Senate and tlonse of ItepresentativeH, iiccor(tin>{ to the ruli'H and linii- tatiouH prescrihed in the ciine of a hill. HKCTIOX VIII. Tho Cont^rosB Hliall Imve power, I. To lay and collect taxes, duticH. inipostH, and excises to pay the dcl)tH and prosido for the coniinon defence and general welfai-e of the I'nited Siat(:K ; hut all duties, iinjiostH, and excises shall he uniform throut,'hout tho United States : '2. To borrow money on the credit of tho United States : ;i. To re^^ulate commerce with foreij^n nations, ami anion<{ the several StateH, and with the Indian tribes : 4. To CRtablish a uniform rule of naturali/atiou, and uniform laws on the subject of bankruptcies throuj^hout the United StateH : 5, To coin money, ro<^ulato the value thereof, and of foreitjn coin, and fix the standar>.tt; ; and all such laws shall be subject to the revision and control of the Conf^ress. ;•$. No State shall, without the consent of Couf^ress, lay any duty of tonnaf^e, keep troops or ships of war in time of peace, enter into any at^reement or compact with another State, or with a foreif^n power, or euf^a-^e in war, unless actually invaded or in such innninent danj^er as will not admit of delay. ARTIJLE II. SECTION I. 1. The Executive power shall bo vested in a President f)f the United States of America. He shall hold his office durinj^ the term of four years, and tout if there should remain two or more who have equal votes, the Senate shall choose from them by ballot, the Vice-President. 4. The Congress may determine the time (.f clioosin;,' the lOlectors, and the day on which they shall ^'i\e tlieir votes; whicii day shall lie the same throughout the Unitoil States. 5. Nc person, e.xcept a natural-born citizen, or a citizen of the United States at the time of the adoption of this ( 'onstitution, shall be eligible to the oflice of President ; neither shall ai.y [lersoii i)e eligible to that olfice who shall not have attained to the aye of tl)irtyli\e years, and been four- teen vears a resident within the United States. ^m m 802 APPENDIX. li i :ii 6. In case of the removal of the Prosidont from office, or of his death, resif^iuition, or inability to dischars^e tho powers and duties of the said office, tlie samo shall develop on the Vice-President; and tho Congress may by law provide for the case of removal, death, resignation, or inability, both of tho President and Vice- President, declaring what officer shall then act as President, and such officer shall act accordingly, until the disability be removed, or a President shall be elected. 8. The President sliall, at stated times, receive for his services a com- pensation, which sliall neither be increased nor diminished during the period for whicJi he shall have been elected, and he shall not receive within that period any other emolument from the United States, or any of them, 8. Before he enter on the execution of his office, he shall take the fol- lowing oath or affirmation : — " T do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States ; and will, to the best of my ability, jireserve, protect, and defend the Constitution of the United States." SECTION II. 1. The President shall be commander-in-chief of tho army and nivy of the United States, and of the mihtia of the several States when called into the actual service of the United States ; he may require the opinion, in writing, of the ))rincipal officer in each of the Executive dejxirtments, upon any subject relating to the duties of their respective t)fflces, and he shall have power to grant reprieves and ])ardons for offences against the United States, except in cases of impeachment. 2. He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present con- cur ; and he sliuil nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers, and consuls, judges of the Suiireme Court, and all other officers of the United States wliose appointments ai'e not herein otherwise provided for, and whioli shall bo established by law ; but the Congress may by law vest the appointment of such inferior officers as they think proper in the President alone, in the courts of law, or in the heads of departments. 3. The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session. SKCTION III. He shall, from time to time, give to the Congress information of the State of tlio Union, and recommend to their consideration such measures as he shall judge necessary and expedient; he may, on extraordinary occa- sions, convene both Houses, oreitlierof them, and in case of disagreement between tiiem witli respect to the time of adj(jurnnient. he may adjourn them to such time as lie shall think proper ; ho shall receive ambassadors and other public ministers ; he sliall take care tnat the laws be faithfully executed, and shall commission all the ofi'icers of the Ignited States. SECTION IV. Tho President, Vice-President, and all civil officers of tho United States, shall be removed from office on impeachment for, and conviction of treason, bribery, or other high crimes end misdemeanors. APPENDIX. 303 ARTICLE III. SECTION I. Ths Judicial power of United States shall be vested in one Supreme Court, and in such inferior courts as the Con^^ress may, from time to time, ordain and establish. The judfjes, both of the supreme and inferior courts, shall hold their oflices during good behaviour, and shall, at stated times, receive for tlieir services, a compensation which shall not be diminished during their continuance in oiitice. SECTION II. 1. The judicial power shall extend to all cases in law and equity aris- ing under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority ; to all cases affect- ing ambassadors ; other public ministers, and consuls ; to all cases of admiralty and maritime jurisdiction ; to controversies to which the United States shall be a party ; to controversies between two or more States ; between a State and citizens of another State ; between citizens of different States ; between citizens of the same State claiming lands under grants of different States ; and between a State, or the citizens thereof and foreign States, citizens, or subjects. •2. In all cases affecting ambassadors, other public ministers, and consuls, and those in whicli a State shall be a party, the Supreme C^ourt shall iiave original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress bhall make. 3. The trial of all crimes, excej)! in cases of impeachment, shall be by jury, and such trial shall be held in the State where the said crimes shall have been committed ; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. SECTION" III. 1. Treason against the United States shall consist only in levying war against them, or in adhering to tlioir enemies, giving them aid and com- fort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court. 2. The Congress shall have power to declare the punishment of treason ; but no attainder of treason shall work corruption of blood or forfeiture, except during the life of the person attainted. -.m ARTICLE IV. SECTION I. Full faith and credit shall be given, in eacli State, to the public acts, records, and judicial proceedings of every otlier State. And the Congress may, by general laws, prescribe the nuinner in which such acts, records, and proceedings shall be proved, (uul the effect tlierof. SECTION II. 1. The citizens of eacli State shall be entitled to all privileges and immunities of citizens in the several States. I 304 APPENDIX. ;t: 2. A person charged in any state with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime. 3. No person, held to service or labor in one State under tlie laws thereof, escaping into anotiier, shall, in conse(iuence of any law or regulation therein, be discharged from such service or labor ; but shall be delivered up on claim of the party to whom such service or labor may be due. SECTION in. 1. New States may be admitted by the Congress into this Union ; but no new States shall be formed or erected within the jurisdiction of any other State ; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislature of the States concerned, as well as of the Congress. 2. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to t)ie United States ; and nothing in this Constitution sliall be so con- strued as to prejudice any claims of the United States, or of any particu- lar State. SECTION IV. The United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion ; and on application of the Legislature, or of the Executive, (when the Legislature cannot be convened,) against domestic violence. '3 ARTICLE V. The Congress, whenever two thirds of both Houses shall deem it necessary, shall jiropose ainendnients to this Constitution, or, on the application of the legislatures of two thirds of the several States, shall call a convention for pro])osing amendments; which, in either case, shall be valid to all intents and purjioses, as part of this Constitution, when ratified by the legislatures of three fourths of the several States, or by conventions in three fourths thereof, as the one or the other mode of ratifi- cation may be proposed by the Congress : Provided that no amendment which may be made ))rior to the year one thousand tight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article ; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate. ARTICLE VI. 1. All debts contracted, and engagements entered into before the adop- tion of this Constitution, shall be as valid against the United States under this constitution as under the Confederation. 2. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, any- thing in the Constitution or laws of any State to the contrary iiotwith- standing. APPKXDIX. 805 3. The Senators and Representatives before mentioned, and the mem- bers of the several State Lejrislatures. and all Executive and Judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution ; but no religious test shall ever be reeace. be quartered in any house with- out the cinsent of the owner ; nor in time of war, but in a manner to be prescribed by law The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue, but upon probable cause, supported by oath o- affirmation, and particularly describing the place to be searched, and the ]>ersons or things to be seized. o.'s.o.c. 21 If * I "Si i-3i : I 306 APPENDIX. V. No person shall be held to answer for a capital or otherwise infam- ous crime, unless on a presentment or indictment of a grand-jury, except in cases arising in the land or i aval forces, or in the militia, when in actual service, in time of war, or public danger ; nor shall any person be subject, for the same offence to be tv ice put in jeopardy of life or limb ; nor shall be comiielled, in any criminal case, to be witness against him- self ; nor be deprived of life, liberty, or j)roperty. without due process of law ; nor shall private property be taken for public use, without just com- pensation. VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the State and district whertin the rrime shall have been committed ; which district shall have been px'cviouslv ascertained by law ; and to be informed of the nature and cause of ''e a'^ vtion ; to he confronted with the witnesses against him ; to 'iitvc ^ ..pulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence. VII. In suits ?on. i law where the value in controversy shall exceed twenty doiiars, cut rij^i't of trial by jury shall be preserved ; and no fact tried by a jury shall be otiierwise re-examined in any court of the United States than according to the rules of the common law. VIII. Excessive bail shall not be required, nor excessive fines be im- posed, nor cruel and unusual punishments inflicted. IX. The enumeration in the Constitution of certain rights shall not be, construed to deny or disparage others retained by the people. X. The powers not delegated to the United States by the Constitution, n'3r prohibited by it to the States, are reserved to the States respectively or to the peojile. : XI. The Judicial power of the Ui^.ited States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens oi another State, or by citizens or sub- jects of any foreign State. XII. S 1. The electors shall meet in Mieir respective States, and vote by ballot for President and Vice-President, one of whom at least, shall not oe an inhabitant of the same State with themselves ; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President ; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which list they shall sign and certify, and transmit sealed to the Government of the United States, directed to the President of the Senate ; the President of the Senate shall, in the presence of the Senate and House of Kepre- eentatives, open all the certificates, and the votes shall then be counted ; the person having the greatest number of votes for President shall be the President, if such number be a majority of the whole number of the Electors appointed ; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of I APPENDIX. 307 those voted for as President, the House ot Representatives shall choose immediately, by ballot, the President. But, in choosinj; the President, the votes shall be taken by States, the representation from each State liaving one vote ; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Hepresentatives shall not choose a President whenever the ri^jht of clioico shall devolve upon them, before the fourth day , then the Vice-President shall act as President, as in the case of the death or other constitutional disability of the President. S 2. Tlie person having the greatest number of votes as Vic .-President shall be Vice-President, if such number be a majority of the whole number of Electors appointed ; and if no person have i\ majority, then from the two highest numbers on the list the Senate p'iall choose the Vice-1'resident ; a cjuorum for the pur- pose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. § 3. But no ))erson constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States. :': i! XIII — 1. Neither slavery nor involuntary servitude, except as a punish- ment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. XIV — 1. All persons bom or naturalized in the United States, and sub- ject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. No State shall raaks or enforce any law which shall abridge the privileges or immunities of citizens of the United States ; nor shall any State deprive any person of life, liberty, or pro- perty, without due process of law ; nor deny to any person within its jurisdiction the equal protection of the laws. 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed ; but, whenever the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age and citizens of the United States, or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State. .3. No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or mili- tary, under the United States, or uiulcr any State, who, having previ- ously taken an oath as a member of Congress, or as an ofticiT of the Ignited States, eras a member of any State legislature, or as an executive or judicial officer of any State, to supi)ort the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof; but (,'ongress may, by a vote of two-thirds of each House, remove such disability. A\X ■:.;iii 808 APPENDIX. 4. The validity of the public debt of the United States authorized by law, including debts incnrred for the payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be ques- tioned. But neither the United States, nor any State, sl'all assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave ; but all such debts, obligations und claims shall be held illegal and void. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. XV — 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, colour, or previous condition of servitude. 2. The Congress shall have power to enforce this article by appropriate legislation. APPENDIX. 809 THE CONSTITUTION OF CANADA. IMP. ACT 30-31 VICT. c. 3. An Act for the Union of Canada, Nova Scotia, and New Branswick, and the Government thereof ; and for purposes connected therewith. 1 mth Mitrch, 1867.] Wliereas the Provinces of Canada, Nova Scotia, and New Brunswick, have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom : And whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire : II And whereas on the establishment of the Union by authority of Parlia- ment it is expedient, not only that the Constitution of the Legislative Authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared : And whereas it is expedient that provision be made for the eventual admission into the Union of other parts of British North America : Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : (a) (a) The Quebec Resolutions were adopted by the Canadas, New Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland in October, 1864. Compare the preamble with the following : The best interests and present and future prosperity of British North America will be promoted by a Federal Union under the Crown of Great Britain, provided such union can be affected on principles just to the several Provinces. In the 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 310 APPENDIX. I. — Preliminary. I. This Act may be cited as " The Britiah North America Act, 1867." 2> The provisions of this Act referring; to Her Majesty the Queen extend also to the heirs and successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland. II.— Union. 3. It shall be lawful for the Queen, by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by proclamation that on and after a diiy therein appointed not being more than six months after the passing of this .-Vet. the provinces of Canada, Nova Scotia and New Brunswick shall form and be one Dominion under the name of Canada; and on and after that day those three provinces shall form and be one Dominion under that name accordingly. 4. The subsequent provisions of this Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the Union taking effect in the Queen's pro- clamation ; and in the same provisions, unless it is otherwise expressed or implied, Uie name Canada shall be taken to mean Canada as consti- tuted under this Act. 6« Canada shall be divided into four provinces, Quebec, Nova Scotia, and New Brunswick. named Ontario. 6« The parts of the province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the provinces of Upjier Canada and Lower Canada shall be deemed to be severed, and shall form two separate provinces. The part which formerly constituted the province of Upper Canada shall constitute the province of Ontario ; and the part which formerly constituted the province of Lower Canada shall constitute the province of Quebec. eflSciency, harmony and permanency in the working of the L'nion, would be a General Government ci-arged 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, — provision being made for the admission into the Union, on equitable terms, of Newfoundland, the North- West Territory, British Columbia and Vancouver. In framing a Constitution for the general government, the conference, with a view to the perjjetuation 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 will permit. The sanction of the Imperial and Local Parliaments shall be sought for the Union of the provinces, on the principles adopted by the Conference. (Resolutions 1, 2, 3, and 90.) APPENDIX. 811 7. The provinces of Nova Scotia and New Brunswick shall have the same limitn as at the passing; of this Act. 8« In the general census of the population of Canaria which is hereby required to be taken in the year ouv. thousand ei^lit hundred and seventy- one, and in every tenth year thereafter, the respective populations of the four provinces shall be distinguished; III. — EXFI;PT1VK PowEU. {b) 9. The executive government and authority of and over Canada is hereby declared to continue and be vested in the Queen. I0« The provisions of this Act referring to the Governor-General extend and apply to the Governor-General for the time being of Canada, or other the chief executive otticer or administrator for the time being carrying on the government of Canada on behalf and in the name of the Queen, by whatever title he is designated. II. There shall be a council to aid and advise in the government of Canada, to be styled the Queen's Privy Council for Canada; and the persons who are to be members of that council sliall be from time to time chosen and summoned by the Governoi-Geiieriil and sworn in as privy councillors, and members thei'eof may be from time to time removed by the Governor-General. I2> (.SVf thin xectioii, untc, piuje 31). 13. The provisions of this Act referring to the Governor-General in council shall be construed as referring to the (j^vernor-Cieneral acting by and with the advice of the Queen's Privy CJouncil for Canada. 14. It shall be lawful for the Queen, if Her ilajesty thinks fit, to authorize the Gi)verni>r-Gonor:il fr )m time to time to appoint any person or any persons jointly or severally to be his deputy or deputies witiiin any part or parts of Canadu, and in that cai)ucity to exercise during the pleasure of the Governor-General such of the powers, authorities, and functions of the (Jovernor-Geur-ral as the Governor-General deems it necessary or expedient to assign to him or them, subject to any limita- tions or directions exi)rcssed orgi\en by the Queen; but t'lv is,ppoint- ment of such a doputy or d >puties ahull not affect the e" ;;sj by the Governor-General himaelf of any power, authority or function. 16. The commander-ni-chief of the land and naval militia, and of all naval and military forces, of and in Canada, is hereby declared to con- tinue and be vested in the Queen. (h) The Executive Authority or Government shall be vested in the Sovereign of the United Kingdom of Great Britain and Ireland, and be administered according to the well underHtood principles of the British Constitution, by the Sovereign personally, or by the Representative of the Sovereign duly authorized. (Resolution 4.) 312 APPKNDIX. I#« Until the Queen otherwise direct, the seat of (;overnment of C«uadA shall be Ottawa. IV. — LkOISLATIVK I'oWKR. I7« There shall be one parliiimcnt for Canada, consisting of tlm Queen, an Upper House, styled the Senate, and the House of Cuni- mons. (c) 'Stetion 18 uan repfiileil lij Imperial Ad 38 d 39 Vict. c. 38, and tin- follotcing tection nubntitiiled thi-rej'or, I8> The privileges, immnnities, and lowers to be lield, enjoyed and exercised by the Senate and by the HrmHo of CominonHund by tJie mem- bers thereof respectively shuli be such as are from time to time defined by Act of tlie Parliament of Canada, but so that any Act of the Parlia- ment of Canada defining such privilefjes, immunities and powers shall not confer any i)rivile{je«, immunities or powers exceedinHi>ntin(i that province shall be appointed for one of the twenty-four electoral divisions of Lower Canada specified in Hchedule A. to chapter one of the (.'onsolidated Htatutes of Canada. 93. (.s A senator shall, subject to the provisions of this Act, hold his place in the senate for life. 30> A senator may by writing under his hand addressed to the Governor- General resign his place in the senate, and thereupon the same shall be vacant. 3I« (See ante, page 42). 32. When a vacancy happens in the senate by resignation, death, or otherwise, the Governor-General shall by summons to a fit and qualified person fill the vacancy. 33> If any question arises respecting the qualification of a senator or a vacancy in the senate the same shall be heard and determined by the senate. 314 APPENDIX. 84>. The Governor-General may from time to time, by instrument under the Great Seal of Canada, appoint a senator to be speaker of the senate, and may remove him and appoint another in his stead. 3B> Until the parliament of Canada otherwise provides, the presence of at least fifteen senators, including the speaker, shall be necesary to constitute a meeting of the senate for the exercise of its powers. 38. Questions arising in the senate shall be decided by a majority of voices, and the speaker shall in all cases have a vote and when the voices are equal the decision shall be deemed to be in the negative. !■: The Home of Vomnions. 37. The House of Commons shall, subject to the provisions of this Act, consist of one hundred and eighty-one members, of whom eighty- two shall be elected for Ontario, sixty-live for Quebec, nineteen for Nova Scotia, and fifteen for New Brunswick, (e) 38. The Governor-General shall from time to time, in the Queen's name, by instrument under the Great Seal of Canada, summon and call together the House of Commons. 39. A senator shall not be capable of being elected or of sitting or voting as a member of the House of Commons. 40. Until the parliament of Canada otherwise provides, Ontario, Quebec, Nova Scotia and New Brunswick shall, for the purposes of the election of members to serve in the House of Commons, be divided into electoral districts as follows : — (/') 41. Until the parliament of Canada otherwise provides, all laws in force in the several provinces at the union relate to the following matters or any of them, namely,- -tlie (jualitications and disqualifications of persons to be elected or to sit or vote as members of the House of Assembly or Legislative Assembly in the several provinces, the voters at elections of such members, the oaths to be taken by voters, the return- ing officers, tlicir powers and duties, thg proceedings at elections, the periods during wliich electio"s may be continued, the trial of contro- verted elections, and proceedinf"« incident thereto, the vacating of seats of members, and the executi' f new writs in cass of seats vacated ((') The basis of represen ion in the House of Commons shall be population, as determined by the otticial census every ten yeais; and the number of members at first shall be 11)1, distributed as follows: UppiT Canada 82 Lower Canada CA Nova Scotia 19 New Brunswick lii Newfoundland 8 Prince Edward Island 5 (Resolution 17.) (f) As this has been changed it is unnscessary to insert it here. r APPENDIX. 31i otherwise than by dissolution — shall reppectively apply to elections of members to serve in the House of Commons for the same several provinces. Provided that, until the parliament of Canada otherwise provides, at any election for a member of the House of Commons for the district of Algoma, in addition to persons qualified by the law of the province of Canada to vote, every male British subject aged twenty-one years and upwards, being a householder, shall have a vote. 42. For lie first election of members to serve in the House of Commons the Governor-General shall cause writs to be issued by such persons, in such form, and addressed to such returning officers as he thinks lit. The person issuing writs under this section shall have the like powers aa are possessed at the union by the officers charged with the issuing of writs for the election of members to serve in the respective House of Assembly or Legislative Assembly of the province of Canada, Nova Scotia, or New Brunswick; and the returning officers to whom writs are directed under this section shall have the like powers as are jJOSseRsed at the union by the officers cluirged with the returning of writs for the elec- tion of members to serve in the same respective House of Assembly or Legislative Assembly. 43. In case a vacancy in the representation in the House of Com- moiis of any electoral district happens before the meeting of the parlia- ment, or after the meeting of the parliament before the provision is made by the parliament in this behalf, the provision of the last foregoing section of this Act shall extend and apply to the issuing and returning of a writ in respect of such vacant district. 44. The House of Commons on its first assembling after a general election shall proceed with all practical speed to elect one of its members to be speaker. 46. In case of a viicancy happening in the office of speaker by death. reKif^nation or otherwise, the Ilouse of ('ommons shall with all practic- able speed proceed to elect another of its members to be speaker. 46. The speaker shall preside at all meetings of the House of Com- mons. 47. Until the parlnunent of C'linada otherwise provides, in case of the absence for any reason of the speaker from Lhe cliairof the Ilouse of Commons for a period of forty-eight consecutive hours, tlie Houhc niity elect another of its members to act as speaker, and the member so elected shall during the continuances of such absence of t)ie sjieaker have and execute all the powers, privileges, and duties of speaker. 48. The presence of at least twenty members of the House of Com- mons shall be necessary to constitute a meeting of the IloiiKt; for the exercise of its powers, and for that purpose the speaker shall be reckoned as a member. M m 5*11 i 316 APPENDIX. 49. Questions arising in the House of Commons shall be decided by a majority of voices other than that of the speaker and when the voices are equal, but not otherwise, the speaker shall have a vote. 60. Every House of Commons shall continue for five years from the day of the return of the writs for choosing the House (subject to be sooner dissolved by the Governor-General), and no longer. Bi. On the completion of the census in the year one thousa ight hundred and seventy-one, and of each subsecjuent decennia) ^nsus the representation of the four provinces sliall be readjusted by such authority, in such manner and from such time as the parliament of Canada from time to time provides subject and according to tlie follow- ing rules : — (1.) Quebec shall have the fixed number of sixty -five members. (2.) There shall be assigned to each of the other provinces such a number of members as will bear the same pioportion to the number of its population (ascertained at such census) as the number sixty-five bears to the immber of the population of Quebec (so ascertained). (3.) In the computation of the number of members for a province a fractional part not exceeding one half of the whole number requisite for entitling the province to a member shall be disre- garded ; but a fractional part exceeding one half of that number shall be equivalent to the whole number. •7(4.) On any such readjustment the number of members for a i)rovince shall not be reduced unless the proportion which the number of tlie population of the province bore to the number of the aggi'e- gate population of Canada at the then last preceding re-adjust- menJi of the number of members for the province's ascertained at the then last census to be diminished by one twentieth part or upwards. {').) Such re-adjustment shall not take effect until Uie termination of the then existing parliament. 62« The number of members of the House of Commons may be from time to time increased by the Parliament of Canada, provided the pro- portionate representation of the provinces pri^scribed by this Act is not thereby disturbed. Money I'o/cs .• Uoyal AxKeiit. B3« Bills for appropriating any part of the public I'evenue, or for imposing any tax or impost, shall originate in the House of Commons. B4. It shall not be lawful for the House of Commons to adopt or pass any vote, resolution, address, or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not APPENDIX. 817 been first recommended to that liouse by message of the Governor- General in the session in which such vote, resolution, address, or bill is proposed. 66« Where a bill passed by the Houses of the Parliament is presented to the Governor-General for the Queer's assent, he shall declare, accdrding to his discretion, but subject to the provisions of this Act and to Her Majesty's instructions, either that he assents thereto iu the Queen's name, or that he withholds the Queen's assent, or that he reserves the bill for the signification of the Queen's pleasure. 66. Where the Governor-General assents to a bill in the Queen's name, he shall by the first convenient opportunity send an authentic copy of the Act to one of Her Majesty's principal secretaries of state; and if the Queen in council within two years after the receipt thereof by the secretary of state of the day on which the Act was received by him) being signified by tne Governor- General, by speech or message to each of the Houses of the Parliarrent, or by proclamation, shall annul the Act from and after the day of such signification. 67a A bill reserved for the signification of the Queen's pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen's assent, the Governor-General signifies by speech or message to each of the Houses of the Parliament or by proclamation, that it has received the assent of the Queen in council. An entry of every such speech, message, or proclamation shall be made in the journal of each House, and a duplicate thereof duly attested shall be delivered to the proper officer to be kept among the records of Canada. V. — Pkovin'cial Constixctions. ( For each province there shall be an officer, styled the Lieutenant- Governor, appointed by the Governor-General in council by instrument under the Great Seal of Canada. (f{) The Local Government and Legislature of each province shall be constructed in such niunner as the exiiting Legislature of each such province shall provide, The Local Legislature shall have power to alter or amend their Constitution from time to time. The power of respiting, 'cprieving, and pardoning prisoners convicted of crimes, and of comini'iing and remitting of sentences in whole or in part, which belongs of right to the Crown, shall be administered by the Lieutenant-Governor of each province in council, subject to any instruc- tions he may, from time to time receive from the General Government, and subject to any provisions that may be made in this behalf by the General Parliament. (Resolutions 41, 42 and 44.) 1! M! 318 APPENDIX. B9< A Lieutenant-Governor shall hold office (luring the pleasure of the Governor-General ; but any Lieutenant-Governor appointed after the commencement of the flrst session of the Parliament of Canada shall not be removable within five years from his appointment, except for cause assi<;ned, which shall be communicated to him in writinj? within one month after the order for his removal is made, and shall be communicated by messaf^e to the Senate and to the House of Commons within one week thereafter if the I'arliament is then sitting, and if not then within one week after the commencement of the next session of the Parliament. 60. The salaries of the Lieutenant-Governors shall be fixed and provided by the Parliament of Canada. 81. Every Lieutenant-Governor shall, before assuming the duties of his office, make and subscribe before the Governor-General or some person authorized by him, oaths of allegiance and office similar to those taken by the Governor-General. 82. The provisions of this Act referring to the Lieutenant-Governor extep''. and apply to the Lieutenant-Governor for the time being of each province or other the chief executive officer or administrator for the time being carrying on the government of the province, by whatever title he is designated. 83. The executive council of Ontario and of Quebec shall be composed of such persons as the Lieutenant-Governor from time to time thinks fit, and in the flrst instance of the following officers, namely : — the attorney-general, the secretary and registrar of the province, the commissioner of crown lands, and the commissioner of agriculture and public works, within Quebec, the speaker of the legislative council and the solicitor-general. 84. The Constitution of the executive authority in each of the Provinces of Nova Scotia and New Brunswick shall, subject to the pro- visions of this Act, continue as it exists at the Union until altered under the authority of this Act. 86> {See ante, page liO). 86> The provisions of this Act referring to the Lieutenant-Governor in Council shall be construed as referring to the Lieutenant-' Jovernor of the Province acting by and with the advice of the Executive Council thereof. 87. The Governor-General in Council may from time to time appoint an administrator to execute the office and functions of Lieutenant- Governor during his absence, illness, or other inability. 68. Unless and until the ExecutiveGovernment of any Province other- wise directs with respect to that Province, the seats of (jlovt'rnment of the Provinces shall he as follows, namely,— of Ontario, the ( 'ity of Toronto ; of Quebec, the City of Quehec ; of Nova Scotia, the City of Halifax ; and of New Brunswick, the City ^t Fredericton. APPENDIX. 819 Legitlatire Powers. (/<) 1.— ONTARIO. 69. There shall be a legislature for Ontario consisting of the Lieuten- ant-Governor and of one House, styled the Legislative Assembly of Ontario. 70. The Legislative Assembly of Ontario shall be composed of feighty- two members, to be elected to represent the eighty-two electoral districts set forth in the tirst schedule to the Act. 2-QUEBEC. 71. There shall be a Legislature for Quebec consisting of the Lieu- tenant-Governor and of two iouses. styled the Legislative Council of Quebec and the Legislative Assembly of Quebec. 72. The Legislative Council of Qtiebec shall be composed of twenty- four members, to be appointed by the Lieutenant-Governor in the Queen's name, by instrument under the Great Seal of Quebec, one being appointed to represent each of the twenty-four electoral divisions of Lower Canada, in this Act referred to, and each holding office for the term of his life, unless the Legislature of Quebec otlierwise provides under the provisions of this Act. 7 3. The qualifications of the Legislative Coimcillors of Quebec shall be the same as those of the Senators for Quebec. 74. The place of a Legislative Councillor of Quebec shall become vacant in the cases mutatii mutaiidin, ia which the place of Senator becomes vacant. 73. When a vacancy happens in the Legislative Council of Quebec, by resignation, death, or otherwise, the Lieutenant-Governor, in the Queen's name by instrument under the Great Seal of Quebec, shall appoint a fit and qualified person to fill the vacancy. 76. If any question arises respecting the qualification of a Legislative Councillor of Quebec, or a vacancy in the Legislative Council of Quebec, the same shall be heard aud determined by the Legislative Council. 77. The Lieutenant-GoTernor may from time to time, by instrument under the Great Seal of Quebec, appoint a member of the Legislative Council of Quebec to be Speaker thereof, and may remove him and ap- point another in his stead. (h) The resolutions are silent as to the matters from sees. GO to 'JO both inclusive and 184 to 144 also. 320 APPENDIX. i: I ii I 78. Until the Loj^islature of Quebec otlierwise provides, the presence of at least ten members of the Legislative Council, including the Speaker, shall be necessary to constitute a meeting for the exercise of its powers. 7©. Questions arising in the Legislative Council of Quebec shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal the decisions shall be deemed to be in the negative. 80. The Legislative Assembly of Quebec shall be composed of sixty- five members, to be elected to represent the sixty live electoral divisions or disiricts of Lower Canada in this Act referred to, subject to alteration thereof by the Legislature of Quebec : Provided that it shall not.be lawful to present to the Lieutenant-Ciovernor of Quebec for assent any bill for altering the limits of any of the electoral divisions or districts mentioned in the second schedule to this Act, unless the second and third reading* of such bill liave been passed in the Legislative Assembly with the con- currence of the majority of the members representing all those electoral divisions or districts, and the assent shall not be given to such bill unless an address has been presented by the Legislative Assembly to the Lieu- tenant-Governor stating that it has been so ))assed. (r/) 3.- ONTARIO AND QUEBEC. 81* The Legislatures of Ontario and Quebec respectively shall bo called together not later than six months after the Union. 82. The Lieutenant-Governor of Ontario and of Quebec shall from time to time, in the Queen's name, by instrument of the Great Seal of the Province, summon and call together the Legislative Assembly of the Province. 83. Until the Legislature of Ontario or of Quebec otherwise provides, a person accepting or holding in Ontario or Quebec any office, commission, or employment, permanent or temporary, at the nomination of the Lieutenant-Governor, to which an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever, from the Province is attached, shall not be eligible as a member of the Legislative Assembly of the respective Province, nor shall he sit or vote as such ; but nothing in this section shall make eligible any person being a member of the Executive Council of thr res^jective Province, or holding any of the fol- lowing offices, that ia to say, the offices of Attorney Ge?ieral, Secretary and Registrar of the Province, Treasurer of the Province, t/n.^inil'sioner of Crown Lands, and Commissioner of Agriculture and Public Works, and in Quebec, Solicitor-General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such office. 84. Until the Legislatures of Ontario and Quebec respectively other- wise pi'ovide, all laws which at the Union are in force in those Provinces respectively, relate to the following matters, or any of them, namely, — the qualification and disqualifications of persons to be elected or to sit or vote as members of the Assembly of <^;anada, the ((ualifications or dis- qualifications of voters, the oaths to be taken by voters, the returning APPENDIX. J321 officers, their powers and duties, the proceedings at elections, the period during which sucli elections may be continued, and the trial of contro- verted elections and the proceedings incident thereto, the vacating of the seats of members and the issuing and execution .iew writs in case of seats vacated otherwisa tlian by dissolution shall respectively apply to elections i>f merabors to serve in the re8p32tive Legislative Assemblies of Ontario ;ind Quebec. Provided that until the Legislature of Ontario otherwise provides, at any election for a member of the Legislative Assembly of Ontario for the District of Algoma, in addition to persons (|ualified by the law -of the Province of Canada to vote, every male British subject, aged twenty-one years or upwards, being a householder, shall have a vote. 66. Every Legislative Assembly of Ontario and every Legislative Assembly of Quebec shall continue for four years from the day of the return of the writs for choosing the same (subject nevertheless to either the Legislative Assembly of (Ontario or the Legislative Assembly of (Quebec being sooner dissolved by the Lieutenant-Governor of the Pro- vince), and no longer. 86. There shall be a Session of the Legislature of Ontario and of that of Quebec once at least in every year, so that twelve months shall not intervene between the last sitting of the Legislature in eacii Province in one session and its first sitting in the next Session. 87. The following provision of this Vet respecting the House of Commons of Canada shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to say, — the provisions relating to the election of a Speaker originally and on vacancies, the duties of the Speaker, the absence of the Speaker, the quorum, the mode of voting, as if those provisions were here re-enacted and made applicable in terms to each such Legislative Assembly. 4. -NOVA SCOTIA AMD NEW BRUNSWICK. 88. The constitution of the Legislature of each of the Provinces of Mova Scotia and New Brunswick shall, subject to the provisions of tliis Act, continue as it exists at the Union until altered under the authority of this Act ; and the House of Assembly of New Brunswick existing at the passing of this Act shall, unless sooner dissolved, continue for the period for which it was elected. 5.— ONTARIO, QUEBEC, AND NOVA SCOTIA. 89- Each of the Lieutenant-Govn-nors of Ontario, Quebec and Nova Kuotia shall cause writs to be issued for the first election of members of the Legislative Assembly tliereof in such form and by such person as he thinks fit, and at such time and advlrcss to such Returning Officer as the Governor-General directs, and so that the first election of member of Assembly for any Electoral District or any sub-division thereof shall be held at the same time and at the same places as the election for a mem- })er to iarve in the House of Commons of Canada for that electoral dis- trict. O S. G. C. 22 B22 AIPKNDIX. «•>.— THE FOUR PROVINCES. 90. The following provisions of this Act respecting the Parliament of ("ansiilii. namely, — the provisions relatinf^ to appropriation and tax bills, the recommetiilation of money votes, the assent to bills, the disal- lowance of Acts, an 1 the signification of pleasure on bills reserved, — shall extend and apply to the lesjislatures of the several provinces as if those provisions were re-enacted and made applicable in terms to the resi)ective provinces and the legislatures thereof, with the substitution of the Lieutenant-Governors of tl>e Province, for the Governor-General, of the (iovernor-Genen^l for the Qu<.-en and for a Secretary of State, of one year for two years, and of the Province for Canada. 91. See page 99 for this and the next section. (/) (() 20th Resolution is as follows : The General Parliament shall hare ix)wer to make laws for the peace, welfare and good government of the federated provinces (saving the Sovereignty of England) and especially laws respecting the following subjects : ( Then follows a list not differing materially from the classes in sec. 01; the last one being as follows:] And generally respecting all matters of a general character, not specially and exclusively reserved for the Local Government and Legislatures. The 48rd resolution is as fo'lows : The Local Legislatures shall have power to make laws respecting the following subjects: 1. Direct taxation, and in New Brunswick the imposition of duties on the export of timber, logs, masts, spars, deals and sawn lumber ; and in Nova Scotia, of coals and other minerals. 2. Borrowing money on the credit of the province. 3. The establishment and tenure of local oflices, and the appointment and payment of local officers. 4. Agriculture. 5. Immigration. 6. Education ; saving the rights and privileges which the Protestant or Catholic minority in l>oth Canadas may possess as to their denominational schools, at the time when the union goes into operation 7. The sale and management of both public lands, excepting lands belonging to the general government. 8. Sea coast and inland fisheries. 0. The establishment, maintenance and management of penitentiaries and public and refo matory prisons. 10. The establishment, maintenance and management of hospitals. asylums, charities, and ek-eniosynary institutions. 11. Municipal institnticns. 12. Shop, saloon, tavern, auctioneer and other licenses. 13. Local works. 14. The incoriwration of private or local companies, except such as relate to matters assigned to the general parliament. I APPExnix. 323 Kducatioii. {j) 93. Ill and for eiich province the loj^islature may pxcliiHivcly make laws in relation to education, subject and according to tiie following pro- visious : — (1.) Nothing in any such la%v shall prejur privilege with respect to denominational schools which any cla.-iS of iwrsons have by-law in the Province at the Union : — (•J.) All i>owers, privileges, and duties at the Union by law conferred and imposed in Upper Canada on the separate schools and school trustees of the Queen's Roman Catholic subjects shall be and the same are hereby extended to the dissential schools of tlie Queen's Protestant and lioman Catholic subjects in Quebec. (3). Where in any Province a system of separate or dissentient schools exists by law at the Union or is thereafter establishcr any of the Provinces. :ind to immigration into all or any of thu Provinces ; and any law of the Legislature of a Province relative to agriculture or to immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. VIL — JcDICATrRE. 96. The Go\ernor-General shall appoint the judges of the Superior, District and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. 97. Until the laws relative to property and civil rights in Ontario. Nova Scotia, and New Brunswick, and the procedure of the courts in those Provinces, are made uniform, the judges of the courts of those Provinces appointed by the Governor-General shall be selected from the respective bars of those Provinces. 98. The Judges of the Courts of Quebec shall be selected from the Bar of that J^rovince. 99- The Judges of the Superior Courts shall hold office during good behaviour, but shall be i-emovable by the Governor-General on address of the Senate and House of Commons. 100. The salaries, allowances and i)ensions of the Judges of the Superior, District and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick,) and of the Admiralty Courts in cases where the Judges thereof are for the time being paid by salary, shall be tixed and provided by the Parliament of Canada. 101. See page 181, ante. VIII. — !!evexces; Debts; Assets; Taxation. 102. All duties and revenues over which the respective Legislatures of Canada, Nova Scotia and New Brunswick before and at the Union had and have power of appropriation, except such jwrtions thereof as are by tin's Act reserved to the respective legislatures of the province, or are APPENDIX. 825 raised by them in accordance with the special powers conferred on them by this Act, shall foim one consolidated revenue fund, to be appropriated for the public service of Canada in the manner and subject to the charf^es in this Act provided. I08> The consolidated revenue fund of Canada shall be permanently charjjed with the costs, charfjes, and expenses incident to the collection, management, and receipt tliereof, and the same shall form the first charjie thereon, subject to be reviewed and audited in such manner as shall be ordered by the Governor-General in Council until the Parliament otherwise provides. I04. The annual interest of the public debt of the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, shall form tiie second charge on the consolidated revenue fund of Canada. 108. Unless altered by the Parliament of Canada, the salary of the Governor-General shall he ten thousand pounds sterling money of the United Kingdom of Great Britain and Ireland, payable out of the con soli'.lated Revenue Fund of Canada, and the same shall form the third charge thereon. 1*6. Subject to the several payments by this Act charged on the con- solidated revenue fund of Canada, the same shall be appropriated by the Parliament of Canada for the public service. es of had e by [• are 107. All stocks, cash, banker's balances, and securities for money be- longing to each Province at the time of the Union, except as in this Act mentioned, shall be the property of Canada, and shall be taken in reduc- tion of the amount of the respective debts of the Provinces at tlie Union. 108. The public works and property of each province enumerated in the third schedule to this Act, shall be the property of Canada, (h) 109. All lands, mines, minerals, and royalties belonging to the several Provinces of Canada, Nova Scotia and Now Brunswick at the Union, and all sums tlien due or imyable for such lands, mines, mincials, or royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the province in the same. 110. All assets connected with such portion of the public debt of each Province as are assumed by that Province shall belong to that Province. Hi. Canada shall be liable for the debts and liabilities of each Province existing at the Union. 112. Ontario and Quebec conjointly shall be liable to Canada for the amount (if, any by which the debt of the Province of Canada exceeds at the Union sixty-two million live hundred thousand dollars, and shall be charged with interest at the rate of five per centum per annum thereon. (k) See ante, page 115 for this schedule. 826 APPKSmX. 118. Tilt' (iHKL'tH ciiiiincriitid in the fourtli Rthvduli! tn tlio Act I t^lcnj;. inn "t the Inioii ti> tlio I'rcivincc of Ciiiiuihi hIuiI! he tin; proptrty amount (if nr.v) hy whicli its pnlilif (Icht L-xceedK atthr t'nion cif^ht uiillioM dolhirH, aiKlnliull be churned with interest lit therateof live per centum per annum thereon. IIS. New BriiUHwickHhull he liiihle to Canada for the amount (if any) by which its puhliii dehtu exceeds at the Union seven million dolhiis, and shall he char<.;cd with interest at the nite of five per centum per annum. 116- In case the public debt of Nova i'cotia and New Urunswick do not at the I'nion amount to ei^'ht million and seven million dollars resijectively, they shall respectively receive by half-yearly ixiymciits in advance from the Cjoveriiment of Canada interest at live per ceiitiiin per annum on the difference between the actual amounts of their retipcctivo debts aii the addresses expressed and as the Queen thinks lit to approve, sab) ■ to the jirovisions of this Act ; and the pro- visions of any order in council in that behalf shall have effect as if they had been enacted by the I'arliament of the United Kingdom of (ireat Britain a.id Ireland. 147. In case of the admission of Newfoundland and Prince Ivlward Island, or either of them, each shall be entitled to a representation in the Senate of Canada of four members, and Inotwithstandiiig anything in this Act) in case of the admission of Newfoundland the normal number of Senators shall be seventy-six and their mnxinium number shall be eighty-two ; but Prince Kdward Island when admitted shall be deemed to be comprised in the third of the three divisions into which Canada is, in relation to the constitution of the Senate, divided by this Act, and accordingly, after the admission of Prince Kdward Island, whether Newfoundland is admitted or not, the representation of each of those Provinces shall not be increased at any time beyond ten, except under the provisions of this Act for the appointment of three or six additional Senators under the direction of the Queen. 832 APPENDIX. THE B. N. A. AC I', 34-35 VICT. c. 28. An Act respecting the est^vblishment of Provinces in the Dominion of Canada. [2dth June, 1871.] Wliereas doubts have been entertained respecting the powers of the Parliament of Canada to establish provinces in Territories admitted, or which may hereafter be admitted into the Dominion of Canada, and to pi'ovide for tlie representation of such i)rovinces in the said parHamcnt, and it is expedient to remove such doubts, and to vest such powers in the said parUament : Be it enacted by the Queen's most excellent Majesty, by and with the advice and consent of the Lords S])iritual and Temporal, and Commons, in til is present parliament assembled, and by the authority of the same, as fftllows : I. This Act may be cited for all purposes as the " British Nortli America Act, 1871." 2. The parliament of Canada may f^om time to time establisli new pi'ovinces in any territories forming for the time being part of the Dominion of Canada, but not included in any province thereof, and may, at tlie time of such establishment, make provision for the constitution and administration of any such province, and for the passing of laws for the jieace, order, and good government of such province, and for its representation in the said parliament. 3. The parliament of Canada may from time to time, with the consent of the Legislature of any province of the said Dominion, increase, diminish, or otherwise alter the limits of such province, upon such terms and conditions as may he agreed to by tlie said Legislature, and may, with the like consent, make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any province iif'fected thereby. 4. The parliameiit of Canada may from time to time make provision foi' tlie a(hninistration, peace, order and good government of any territory not for the time being included in any province. 6. The following Acts passed by the said parliament of Canada, and intituled respectfully : " An Act for the temporary government of Rupert's Land and the North-Western Territory when united with Canada," and " An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to establish and provide for the government of the province of Manitoba," shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent, in the Queen's name, of the Governor- General of the said Dominion of Canada. APPENDIX. 333 6. Except as provided by the third section of this Act, it shall not be competent for the parliament of Canada to alter the provisions of the last mentioned Act of the said parliament, in so far as it relates to the province of Manitoba, or of any other Act hereafter establishinfi new provinces in the said Dominion, subject always to the rif,'ht of the Legislature of the province of Manitoba to alter from time to time the provisions of any law resiJecting the qualification of electors and mem- bers of the Legislative Assembly, and to make laws respecting elections in the said province. THE PARLL\MENT OF CANADA ACT, 187.->. This Act was passed to amend section 18 of the B. N. A. Act of 18i)7 already referred to in that Act, section 2 is as follows : The Act of the parliament of Canada passed in the thirty-first year of the reign of Her present Majesty, chapter twenty-four, intituled 'An Act to provide for oaths to witnesses being administered in certain cases for the purposes of either House of Parliament " shall be deemed to be valid, and to have been valid as from the date at which the Knyal Assent was given thereto by the Governor-General of the Dominion of Canada. / •■«R.. & 's, . ■ /■(y^> v~^~- ^■^M.-it^^i,^^»_;^ Y'-^ •>_.-•»-. /•— Y UvCt iA^t/- Z^-^f^-eJZ . t_/ I .*--i/V--<^' i /"l-iM' ■>— k { 1/ l^ s^ i(<— tc*^ - » t»»— <_i /i o-fi^ ""^-^ui fYUtM^ J /'...U^o AIJ Q,, .^1 '->,^..>-.-«, \ ^-^-4 r A-'' '^KX'i -.. .. ■/ Ot^-v^J { ^ ,. ' ^.../ 4./ ..>, . fVvi {* l^v ,.f ^ . ).~ ^ l-^-., ...vY -ft^'. it^ZA^Xy,,^^ ■ '-'''"■•: W" ?^ -' - / > Fft/TvSi t4\J/\J X-A-^V^v-. u^ .1 I N DEX. / A ^j Uaj(^ i Alt, Tiik B. N. a., ;{09— Mr. Dicey on, H divisions of, 5 general view of, 2 preamble of, 3 A(JniCUI,TURE — (See department of) department of, in Ontario, 155 AlJhXS — Position and rights of, 223. ArPKAiiS — When allowable, 197 AxTonN-icYs— (See ofifioers of the law) Attdiiney-Gexekai. — Department and duties of, 152 America — Three claimants to continent of, 24!) Auditou-Genehal — Appointment and duties of, 72 Autonomy of Pkovinces — C. J. Ritchie on, 138 Baoehot- B On English constitution, 3S BAIililSTEIlS- BlLLS — BlAKE, Ml!. Appointmelit of, etc., 202 Different stages of, 123 Origin of different kinds, 121 Supply, 21 !. On powers of British Parliament, 12 336 INDEX. BiiiTiBH Columbia — Admission of. to anion, 172 Legislature of, 172 Cahinet, The (See Privy Council) Cabinet questions, 62 Canada — Ceded to Britain by Treaty of Paris, 17 divided by Lord Carletoii, '271) early jiovernments of, 2.')0 first held by France, 250 government of, previous to Quebec Act, 2(55 invited to join in American revolution, 27ii old province of, divided, 4 Canada Gazette. 74 Canadas. the divided. 278 Canadas. the United, 28G Census, when taken, 76 Christianity recognized by law. 244 Church not established in Canada. 243 Civil matters, procedure in. belongs to provinces, 196 Cleroy, tithes of the Roman Catholic, 281 reserves, 281 Colonies, sovereign power always divided in, 20" Commerce, (see department of trade and commerce.) Commissions of enquirj-, 240 Commons, House of — how constituted. 51 importance of. 18 ])ay of members of, 53 persons entitled to vote for members of, 64 persons ineligible as members of, 53 powers of, 58 privileges of members of, 5'J Confederation, 291 Conference, between Senate and Commons, 123 Constitution, of Canada, 309 Consideration of. 293 defined by B. N. A. Act, 15 different views of. 131 modelled on that of Great Britain, 2, 10 on a federal basis, 10 resulted from agreeTient of provinces, 15 of Great Britain, principles of, 12 unity of powers in, 10 of United States, 296 INDKX. 837 CoiKT.S IN ('anaha — Compared with IJritisli uml V . K. coiirts. '!'» Decide in i:iist's of oontlictiu;^ laws, 177 decide on couHtitutioimlity of statutes, 11 interpret le.qislation, 177 jurisdiction of county courts, I'Jl) of appeal, l'.t7 powers of, '25 Provincial, the. 106 CoKONEKS — Duties of, 218 iiKjuests held by, '220 Criminal — inforinationa, '207 Law of Enj^land introduced into Canada. 20r> matters, procedure in, retiuhited by Dominion, •207 Crown, The — Represented in Canada by Governor-General. 17 Powers and duties of. 17 Refuses or grants asstnt to bills, 10 Ckown Attokneys — Appointment and duties of. 222 CrRRKNCY of Canada, 72 Custom's (Bee department of) Commissioner of, 83 D Debts of Provinces assumed by Dominion, llti Denizens, position and rijL^hts of, 227 Departmental administration at Ottawa, i«7 Dep.uitment of Agriculture, 71 Customs, 83 Finance. 70 Inland Revenue, HI Justice, (11) Marine and Fisheries, 7S Militia and Defence, 70 Public Printing and Stalionerv, '.i."> . Public Works, 01 TJie Interior, 80 The Post Office, 88 Railways and Canals. 00 Secretary of State, 7li Trade and Commerce, 01 DiFEERENCEs between Senate and Commons, is DiFFicrLTiEs of divided legislative powers. lOli Disputes between Senate and Commons, how ailjusted, O'S.G.C. 47 'I'.i 338 INDKX. Disallowance, tlie power o(, 1'2'.» of provincial lejiishitioii, extent of, H't Mr. Lush on, 1 >•'> Division of lu<{i8lative jjowers in C'linada, 22 Dominion, powers of, not limited, 20 Mr. Blttke on. 24 Education — Under provincial control, IflU Department and minister of, H»2 Elections, provisions in rejjard to bribery at, o5 Enol.\nd, first iKJssessions of, in America, 21'.t Political history of, before Quebec Act, 200 proclamation dividing territories of, in America, 263 Escheated lands belon{{ to provinces, 137 Excise, 84 exciieqcek cocbt— Constitution and jurisdiction of, 193 Executive AcTHoniTv — In the provinces, '.) must be divided in a federal union, 8 vested in sovereign by agreement, 2 Extradition — When allowed, 211 , Fedek.u^ Union — Mr. Freeman on a, 8 meaning of a, not expressly provided, 4 Federation and monarchy com))are(l, 11 with monarchic principles, opinions of, 14 Government, Mr. Blake ou British system of, 10 Different kinds of, in Canada, 292 Governors, powers of, under Constitutional Act, 1791, 32 Unioa Act ou powers of, 33 INDKX. aau GovKiiNoh-OKNKiui. Tlio, iippoiiitH jiulj,'t'M, 28 appoiiitH liieutcnant-CiovernorH. 2i( aiipoiiitH SiMMikerof Henate, '27 death of, tloes not diKBolve Purliainent, 27 (liitiea of, f^cuerally, iiH Duke of NewcHHtlo f)ii diitii's f)f, H!» liaH only a noj^ativo voicn in i ('►{iHlation, .'J7 may appoint deputieH, '2(> may disallow rrovincial ActH, HO nuiy f^rant, rcfuHcor reHcrviiQuecn'H aHKenttobillH, 28 poworH of, f^enerally, 2'.) over provinccH, 20 statutory, it I acts rcferrinj^ to, 'M roprescnts llu" (!ro\vii in Canada, 2('» summons senators, 27 summons andmav dissolve commons, 28 Todd, Mr. on, :tH ' vested witli powers of late t^overnors. 4, Id when alone under our f(3nstitution, 'M H Ha)ikas Coui'us introduced into Canada, 27;") Hkiu and devisee commissions, l;V,t High CommisBioner of Canada, '.)^> Hudson Bay Territory bought. Hit I iNConroRATioN of towns, etc., 241 Indian affairs, 77, 78 ' lands under Dominion control, 118 Industkial schools, 163 Inland revenue, (See department of) Interior, (See department of) Intuoduction to part II, 2iJ > JUDICATURK — Powers and duties of, in a federation, 11 powers of, in En^lai d, IH ))Osition and powers of, in Canada, 177 JuDictAii powers in United States, 182 (Janada, 183 Juries, powers and duties of, 208 Jurisdiction of different courts, 1'.I7 Concurrent, of Dominion and Provinces, 75, 101 Of magistrates, lOU :{!() INDKX, .lorni:, (Hic (lf|)iirtnu'nt nf) .ICHTK rS K Laniis esclu'ivtiii;^ to ('lowii ljfli.vtivk i)o\veis imperfectly dotined in the Conrftitntion, 17*) Leois(,vti'1!ks of provinces, liow c:tnipoiol, 1 liJ Procednre in 1-44 LETTEns, privile^je of L'arryinjj, ny Lii;:;i., actions for. '23V» LlEflEXANT-GoVKUNOl! — Appoint'.'d by the Governor-General, 141 esbentiul to jirovincial leyishitures, 1-11 held inL".i]Kil)le of cixiitin^' (^)iiei'n"s counsel, iii> ;,'ivin^ Queen's sanction to legislation, Wt jjo'vers of, in Ontario and Quebec, 110 HUi)plied by Dominion. 1 1(1 the head of the pnivinci;il legislature, 2'ii C. J. Kitchie on, i;i7 Karl Kimberley on. 142 Mr. Justice Gwynne on. 112 Sir Jolm A. Macdonuld on, 1 11 M Macaui.ay on parliamentary f^overnment, 12 3Iaxitoba, made a province. 170 lef^islature of, 171 Mahine and fisheries (Kee dop.irtmt'ut of) Mauitime court of Ontariti. jurisdiction etc., of, 104 !klASEKEs, Attorney-General, draft act of. 2(').S Militia and Defeneo {Hee department of) Mii.iTiv. how classified, 80 Itersons exoirjjt from service in. Hi INDKX. l\4\ MtMHii;iiM, (Kuc ili'juirtiiiciils) - Kiiliirii'H of, ('(H IjowocH of iiiv((siti;,'ati()ii of, (17 MiNlH'iiiY, alwiiVH i'osi)()iiHil)lc, I'll Curry on tlic work of ;{overiuiiL'iil, l!) MofNTi:!) l'oli(:c, tilt! N. \V., 77 Mrsicii'Ai.tTiKs iiinl iiiiiiiicipal (corporations, '_M'J N Noui'iiWKST TorritorioH admitted into Dominion, 11!) Adminintrntion in, 17.{ NoTAUY Public, ollict! and duties of a, ■_'l)l Nov\ Sdi.tia and Now IJrunswick, nnnaintnl as bufori; Confodoriition, 12H Lc'f.'isiatnres of, ItiH o Oxrji of allegiance, 22(') residence, 2'2'> Officers of tlie law, '20'2 Ontario, assembly of, 147 Clauses of J{. N. A. Act eonccrnin^', 128 Executive council of, loi) Letjislature of, I'M, 1.17 Lieutenant-Governor of, 1-17 procedure in assembly of, 1 1;» ' qualifications of members in, UH Ontario drainage Act, Itil fisheries Act, loK Municipalities' fund, l">j Ownership of mail matter Hi) Parliament — General powers of, 112 powers of, not restricted in Great Britain, IH Parliament of Canaha — Can establish new provinces, 113, 170 committees of, 122 dissolution of, VJ'i established by Ji. N. A. A(!t, 15 functions of, mainly le^'islative, 20 how constituted, 1('; powers of, iKi powers of, C. J. Draper on, <)H peocednre in, 120 prorogation of, 12') sessions of, 120 subjects for legislation of, iC.l summoning of, 120 342 INDKX. PaiV^'t.-. oi jin'oiitiou, 7(i Pktitions to I'arliiinioiit, 2'.ix P()i,ici': Maj^istrate, powers of, 217 Pohtmasti;k-Gi:nki!Ai,, oftice of, Hs Post Offhk (See depavtmeiit of) "General Post [liiion," H'.l PoWKDS or LKdIKIiATION — (yanarlian division of, compared with Americiiu, 108 how distriljiited in CJunada, 10!) Mr Dicey, on distribution of. 111 PuKCEDEXCE, table of, in Canadii, •i'ilt PuKUO(iATivKS OK CiiowN — liow v(^stod ill t,'ovt'riiors, ll"» Chalmer on, .'(() PiiKss, liberty of the, etc., '2'M) PiUNOK Edward Island, legislature of, 172 Phinteu, the Queen's, IHl PitivY Corxcii, the, advises crown, (il carries on adniinistrativo t,'overnment, OS compared witii executive of United States, (Ki constitution of, ;")'.) has no judicial functions, (')2 judicial committee of, in England, 184 peculiar to English form of government, (').■) qualifications of members of, Gl relation of, to the executive and legislature, G3 Pbocedube in trials, 200 Pbovinces, the — Compared with States of American Union, 127 constitution of, 22 constitutions of, imperfectly defined, 12G executiTes of , 128 executive power in, 22 intentions of, in forming a union, 1 Legislatures of, may be dissolved on demise of the crown, 34 position of, 133 powers common to all the, 128 powers of, enumerated C, J. Ritchie on, sovereignty of. C. J. Hagarty on. 98 statutory description of, 127 sums paid by Dominion to, 11(5 Provincial legislatures, Mr. .Justice Gwynno on, 13;') Public meetinf;s, how caih.d, etc., 239 Public printing and stationery, (see department of) Public Wobks, (see depurtment of) Department of, in Ontario, ir)9 list of, belonging to ('anada, ll.'i property required for, vested in the crown, 93 INDEX. 343 QUEBKC — Bar of the jn-oviiice of, 'JOH clauses of B. N. A. Act rcf^ardiii^^, 128 composition of legislature of, 1(55 judges of, 107 legislative assembly of, IMi council of, 1(15 legislature of, 13!) Lieutenant-Governor of, l(i7 Quebec Act, materials for, '2(58 provisions of, 200 R EaiiiWays and canals, (See department of) Reoistrau-Genehal, (See Secretary of State) Religious liberty, a recognized principle of law, 24;^ Reports of ministers, 07 Representation in parliament, 232 Riot Act, The. 237 Royal instructions to governors, Mr. Blake and Earl Carnarvon on, 36 Rupert's Land (See N. W. Territories) Admission of, to Dominion, 119 vn, 34 Secretary and Registrar of Ojitario, 1,73 Secretary of State, (See department of) Senate The, addition of members to, 47 Compared with House of Lords, 17 constitution of, 40 functions ami powers of, 4.'), 47 Goldwin Smith on, 48 Mr. Freenmn on, 4'.t object of, 18 reasons for, 47 vacancies in, 42 why nominated, 4i( Senators, how first appointed, 42 may be members of ministry, 43 privileges and immunities of, 45 ((ualitications of, 41 title and precedence of, 43 SjiKRiFt's, appointment and oHice of, 43 Solicitors, 203 r mmmmm 344 INHKX. SovKUKUi.N OK (iitK.vr JJiiiTAiN Llic Ill-it rloiiiuul ol' C:uuuliiui piirliainuiit, "Jfi SovKUEKiNTY, Uauiol Webster on, '.t Division of, in Caniula, it, '20 Ainerican union, '21 ill llnitea States, '.17 Mr. Jenkins on, it SovEKEioNTiKH, provincial and DoininiDii, '.•'> Speakeu of Coninions, ;").") Heiiate, It Statistics of Minister of Agriciilttue, 7(1 Subjects, definitions or, 2"2:{ for Dominion le.t^islation, f,'roiii)iii,^ of, H'l provincial " " '• lO.") Supreme Court of Canada, jurisdiction of, etc, 18.j practice and procL'ilure of, 188 Tekritories, the, powers of parlianiont over, li:5 Titles under confederation, 228 Trade and commerce (see department of) Treasurer of Ontario, department and duties of, J ")} Treaties affecting Canada, 2.V2 Treaty of Paris — Freedom of worship giuiranteed to Catliolics by, 2til u Union the, act of, 28() n V Veto, how exerciseable, 127 Vote, persons entitled to, at Dominion elections, ;1i persons entitled to, at Ontario elections, '2'M persons not entitled to, at (Ontario elections, ■j;}.') w Whit of execution, 201 It, -Jl) ■\