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 YALE LECTURES ON THE 
 RESPONSIBILITIES OF CITIZENSHIP 
 
 THE CONSTITUTION OF CANADA IN ITS 
 HISTORY AND PRACTICAL WORKING
 
 The Constitution of Canada 
 
 IN ITS 
 
 History and Practical 
 Working 
 
 By 
 
 WILLIAM RENWICK RIDDELL, LL. D. 
 
 Jxiatice of the Suxyreme Court of Ontario 
 
 NEW HAVEN: YALE UNIVERSITY PRESS 
 
 LONDON: HUMPHREY MILFORD 
 
 OXFORD UNIVERSITY PRESS 
 
 MDCCCCXVII 
 
 69B28
 
 Copyright, 1917 
 By Yale University Press 
 
 First published, April, 1917
 
 T4- 
 
 TO 
 ANNA HESTER KIRSOP RIDDELL, 
 
 <fiL\Ta.Tr] TTaKTCDV, 
 
 KAAOKArA©HI.
 
 t 
 
 c 
 
 *0 
 
 v\ •i 
 
 N. 
 
 PREFACE 
 
 These four lectures in the Dodge Foundation 
 are not intended to give a formal and connected 
 fi account of the Constitution of Canada, but rather 
 S. a popular exposition in a manner likely to be 
 V more acceptable to a non-legal audience. 
 
 The subject was not of my own choosing, but 
 
 was adopted at the instance of friends in Yale 
 
 i University who were good enough to say that the 
 
 ^ ) Constitution of Canada might be made interesting 
 
 to the class of Americans whom these Lectures 
 
 are expected to reach. 
 
 Those desirous of a more extensive knowledge 
 of the subject are advised to consult such works 
 as the following: 
 
 "Parliamentary Government in the British 
 Colonies," by Alpheus Todd, C.M.G., etc., 2d 
 edition, London, Longmans, Green & Co., 1894. 
 
 "Parliamentary Government in England," by 
 the same learned and accurate writer, 2d edition, 
 London, Longmans, Green & Co., 1889. 
 
 "The Canadian Constitution," by E. R. Cam- 
 eron, K.C., Winnipeg, Butterworth & Co., 1915.
 
 X PREFACE 
 
 "Canada's Federal System," by A. H. F. 
 Lefroy, K.C., Carswell & Co., Toronto, 1913. 
 
 "The Law of the Canadian Constitution," by 
 Mr. Justice Clement, 3d edition, Carswell & Co., 
 Toronto, 1916. 
 
 "The Law of Legislative Power in Canada," by 
 A. H. F. Lefroy, K.C., Toronto Book & Publish- 
 ing Co., Toronto, 1897-1898. 
 
 "Parliamentary Procedure and Practice in the 
 Dominion of Canada," by Sir John Bourinot, 4th 
 edition (Dr. Flint's edition), Toronto, Canada 
 Law Book Company, 1916. 
 
 "The Hon. Alexander Mackenzie, His Life and 
 Times," by William Buckingham and (Sir) 
 George W. Ross, Rose Publishing Co., Toronto, 
 1892. 
 
 Any of the several Lives of Sir John A. 
 Macdonald. 
 
 The historical matter is to be found scattered 
 in many volumes. Kingsford's "History of 
 Canada," in ten volumes, Russell & Hutchinson, 
 Toronto, 1887 to 1898, is very useful but must 
 be read critically; it is not always accurate in 
 minutiae. 
 
 These Lectures are submitted in the hope that 
 they may tend a little toward increasing the 
 knowledge of our system by our friends and 
 neighbours to the South, and in the confident
 
 PREFACE xi 
 
 belief, born of many years' experience among both 
 peoples, that anything which makes the one better 
 known to the other will necessarily tend to the 
 increase of the feeling of brotherhood now happily 
 existing. 
 
 It has been the dream of many like-minded that 
 the English-speaking peoples might one day be 
 all as one in matters of world importance. It 
 may be that there never will be a treaty of paper 
 and ink between the two great English-speaking 
 nations ; nor as I think is it necessary or even 
 advisable that such should be. But to my mind 
 it is as certain as the immutable laws of morals, 
 as certain as the track of the planets around the 
 sun, as the stars in their courses, that these 
 peoples of kindred origin, kindred tongue, kindred 
 institutions, kindred aspirations, must be bound 
 together by a tie which is infinitely stronger than 
 a parchment bond, that they must stand and 
 march and, if need be, fight side by side for truth 
 and honour, justice and righteousness among the 
 nations. 
 
 William Ren wick Riddell,. 
 
 Osgoode Hall, Toronto, 
 February, 1917.
 
 
 
 CONTENTS 
 
 PAGE 
 
 Preface 
 
 
 ...... 
 
 ix 
 
 Lecture 
 
 I: 
 
 Historical .... 
 
 1 
 
 Lecture 
 
 II: 
 
 The Written Constitution 
 
 52 
 
 Lecture 
 
 III: 
 
 The Constitution in Its Actual 
 
 
 
 
 Working . . . 
 
 89 
 
 Lecture 
 
 IV: 
 
 A Comparative View 
 
 120 
 
 Index 
 
 
 
 
 161
 
 THE CONSTITUTION 
 OF CANADA 
 
 LECTURE I 
 HISTORICAL 
 
 The turning-point in the history of this Conti- 
 nent, if not indeed in the history of the world, 
 was the Conquest of Quebec by Wolfe in 1759. 
 
 Before that time the two Great Powers of 
 Western Europe, Great Britain and France, were 
 not very unequally matched in North America — 
 France being distinctly superior in her manage- 
 ment of the aboriginal inhabitants, Britain in the 
 occupation of territory to their exclusion. 
 
 The Conquest, followed by the formal cession 
 of Canada, determined for all time that France 
 should not be Mistress of the New World. It 
 was still more important in that by removing the 
 fear of a "natural enemy" to the North, it allowed 
 the English Colonists to pay the greater and the
 
 2 CONSTITUTION OF CANADA 
 
 more effective attention to their own affairs. 
 What many had prophesied, and all should have 
 foreseen, took place: the Colonists demanded self- 
 government as a right, and when they could not 
 have it within the British Empire they went out 
 from the Empire. 
 
 The Thirteen Colonies were by no means blind 
 to the advantage to be derived from Canada 
 joining them. A strong printed appeal in French 
 was circulated in Canada; the effect was negli- 
 gible, the ordinary habitant could not read and 
 such of the French-Canadians as were compelled 
 by their profession to be literate — I mean the 
 priesthood — the Continentalists seemed to take 
 pains to insult and antagonise. Armed force was 
 no more successful than printed persuasion ; the 
 skill, courage and endurance of Arnold and his 
 invaders in 1775-1776 — and no soldiers, profes- 
 sional or amateur, have ever shown more courage 
 and endurance since or before Xenophon's Ten 
 Thousand — were in vain against the adamant of 
 Quebec, the skill of Sir Guy Carleton and the 
 bravery of his soldiers, British and Canadian. 
 
 And so Canada remained true to the British 
 flag. 
 
 The loyalty of the French-Canadians to 
 Britain is, at least in part, to be attributed to 
 what is known as the Quebec Act of 1774.^
 
 HISTORICAL 3 
 
 At the time of the Conquest, the condition of 
 Canada was substantially that of a Province of 
 France; so far as the government was concerned, 
 New France was almost a transcript of the old 
 France across the sea.^ 
 
 "The King of France was represented by a 
 Governor appointed by the King — usually a noble 
 who desired to replenish his coffers from the 
 wealth of the new land; he had in Canada much 
 the same powers as the King in France; but he 
 had always with him a watchful guardian of the 
 interests of the King and of France — the Intend- 
 ant — and the Intendant had also very large 
 powers indeed, particularly in respect of finance, 
 police and justice. Then there was a Council, not 
 elected but appointed, who acted as a combination 
 of judge, lawyer and administrator — the King 
 however could disapprove and thereby nullify any 
 act of theirs. 
 
 "There was no such body as a Parliament in 
 the English sense, but the country was governed 
 on feudal principles." 
 
 In the country were the nobility — the no- 
 blesse — the seigniors who owned the land — every 
 Canadian noble was a seignior though some 
 seigniors were not noble. The seigniors paid 
 homage to the King or some intermediate superior,
 
 4 CONSTITUTION OF CANADA 
 
 for subinfeudation was by no means unknown; 
 they had under them the peasants, "habitants" 
 (or rather "habitans") as they called themselves, 
 to whom they leased land to be held on much the 
 same terms as the lands were held by the peas- 
 antry in France. This seignioral tenure was 
 introduced substantially by Richelieu in 1627, 
 and remained in great measure practically un- 
 changed in Lower Canada till 1854. 
 
 The commonalty called themselves "habitans," 
 as they did not like the word "censitaires" or 
 "roturiers" used in old France to denote those in 
 a similar condition there. These terms were con- 
 sidered to imply a greater degree of dependence 
 upon the feudal lord than the free Canadians were 
 willing to acknowledge themselves to be subject 
 to. We have no English word an exact equivalent 
 of either "censitaire" or "roturier" or "habitant," 
 but "tenant" perhaps comes nearest in meaning. 
 
 Not only did a seignior when he succeeded to 
 his estate pay homage to the King or other his 
 feudal superior, but when the seigniory changed 
 ownership by sale or gift or by inheritance other 
 than in the direct line, a part of its value, usually 
 (at least in theory) a fifth part, had to be paid 
 to such superior. It was the custom to remit 
 one-third of this amount so paid, but this custom 
 does not seem to have been enforceable at law.
 
 HISTORICAL 5 
 
 The seignior, if an individual and not, as some- 
 times happened, a religious order, also had the 
 privilege of being eligible to be appointed a 
 member of the Superior Council — if the authori- 
 ties saw fit, he might also have a commission in 
 the militia ; for in time of war all the inhabitants 
 of Canada might be called upon to do service in 
 the army under the Governor or other commander. 
 In all but a very few instances, he did not own his 
 land in the fullest sense — the Crown reserved 
 mines, minerals, oak-timber and masts for ship- 
 building, such lands as might be required for 
 military purposes, and the like. 
 
 In France, as a rule, the seignior had, as an 
 incident to the ownership of property, the right 
 of exercising judicial powers — in Canada the mere 
 ownership of a seigniory did not carry with it such 
 right. It could be obtained only by express grant. 
 Most of those who had seigniories granted after 
 1633 received such grant, and some exercised the 
 powers given. Sometimes the judicial power 
 extended to all grades of jurisdiction, high, mesne 
 and low {haute, moyenne ou basse justice) ^ some- 
 times only the mesne and low, and sometimes only 
 the low justice. 
 
 The seigniors whatever their powers very rarely 
 exercised the right of haute justice; cases of any 
 importance were generally left to the royal courts
 
 6 CONSTITUTION OF CANADA 
 
 to dispose of, whether civil or criminal. There is 
 no record of the death penalty having been 
 inflicted by any seignior, although very many had 
 the power in law to inflict capital punishment. 
 
 The habitant as "censitaire" (tenant) — I have 
 pointed out that the words are not precisely 
 synonymous — was under many feudal obligations 
 familiar to readers of Blackstone; for example, 
 he was bound to take his grain for domestic use 
 to be ground at the seignior's mill, and to pay for 
 such grinding usually one-fourteenth of the grain. 
 If he went to another mill, that did not relieve 
 him from paying liis seignior; and his punish- 
 ment might be even greater, for in one judgment 
 it was provided that a habitant who took grain 
 to any mill but his seignior s should be liable to 
 have both the grain and the vehicle carrying it 
 confiscated by the seignior. 
 
 In a few instances the droit de four banal also 
 existed: the seignior built an oven, and the habi- 
 tants had to bring their dough to be baked in the 
 oven, paying for the privilege, of course, usually 
 one-twenty-fourth of the bread. 
 
 In France there was a long list of "banalites" 
 which the seignior had as an incident to his 
 possession of a fief: but the grist-mill and bake- 
 oven banalities are all that were ever claimed in 
 Canada and thev seem to have been exercisable
 
 HISTORICAL 7 
 
 only because of a clause in the "leases" to the 
 habitants. 
 
 If a habitant, being the feudal inferior, desired 
 to dispose of the land which he held, he was obliged 
 to pay a substantial part of the purchase money 
 to the seignior; and worse, the seignior might 
 himself take the land within forty days of the sale. 
 He was liable to the corvee, or forced labour, for 
 his seignior, as in France ; he must in some 
 instances give the seignior one fish out of every 
 eleven of those caught in seigniorial waters ; wood 
 and stone might be taken from his land by the 
 seignior to build or repair manor-house, church 
 or mill. 
 
 But while the peasants had no part in the 
 government of the country, and were inferiors, 
 their lot was immensely superior to that of their 
 brethren in the old land, as they themselves were 
 essentially superior to the peasants of old France 
 in intelligence and manners. 
 
 They were free, bold and adventurous, frugal, 
 industrious and moral ; and made the very best of 
 soldiers for the kind of country in which they 
 were called upon to fight. 
 
 Next to, if not sometimes above, the seignior, 
 was the Cure — sometimes the only one in the 
 seigniory except (or possibly not excepting) the 
 seignior, who could read and write. The essen-
 
 8 CONSTITUTION OF CANADA 
 
 tially religious character of the French-Canadian 
 is seen in the high place the Cure is held in his 
 regard — a place which is but little, if any, lower 
 now than it was a century and a half ago. Indeed 
 it has been said that the Canadian Cure exercised 
 in Canada the power in France of the King, the 
 noble and the priest. 
 
 The members of the priesthood — in large meas- 
 ure from old France — were devoted sons of the 
 Church, their love for France not clashing with 
 or excelling their love for their spiritual mother. 
 But neither priest nor peasant had any part in 
 making the laws by which they both were 
 governed; their government was arbitrary and 
 military; they were accustomed to obey their 
 superiors — and anything more unlike a constitu- 
 tion in our latter-day sense than was the mode of 
 government of that happy, fearless, primitive 
 people it would be hard to find. 
 
 In 1759 Quebec was taken by Wolfe, and the 
 first period of Canadian Constitutional History 
 came to an end. All Canada in 1760 was under 
 the power of Britain, and the military commanders 
 in the army of the conquerors governed the land 
 as a conquered country. But the religion of the 
 Canadians was not interfered with; Catholics as 
 they were, and their conquerors belonging to a 
 Protestant nation, their law (speaking generally)^
 
 HISTORICAL 9 
 
 based upon the Civil Law of Rome was adminis- 
 tered by a conqueror whose law was based on the 
 Common Law of England.^ Their French customs 
 were respected, the only strange law imposed upon 
 them was the criminal law of England, which was 
 more merciful than their own, which permitted 
 torture, breaking on the wheel and arbitrary 
 imprisonment. 
 
 Except as modified by the legislation of Canada 
 herself, the English Criminal Law has ever since 
 been in force, and no complaint ever was heard 
 from the Canadians and no desire to return to 
 the French system. 
 
 The definitive treaty between Great Britain and 
 France — the Treaty of Paris signed 10th February, 
 1763 — placed the allegiance of Canada beyond any 
 doubt, as by that instrument France ceded her to 
 Great Britain. It was not, however, till October of 
 that year that any change was made in the govern- 
 ment of the new country, thereby inaugurating the 
 third period of our Constitutional history. On the 
 7th October, 1763, a Royal Proclamation was issued 
 establishing in "the extensive and valuable acquisi- 
 tion in America four distinct and separate Govern- 
 ments . . . Quebec, East Florida, West Florida and 
 Grenada."* 
 
 Quebec, with which alone we are concerned, is 
 defined in the Proclamation in such a way as to
 
 10 CONSTITUTION OF CANADA 
 
 make it wholly impossible to follow the descrip- 
 tion,^ and indeed no good end would be achieved 
 by ascertaining the precise meaning of the words 
 used. 
 
 Whatever may have been in the mind of the 
 draughtsman of this description, it was consid- 
 ered effective to form a "Government" called 
 Quebec as a political entity. By this Royal 
 Proclamation, the Governor was given power, with 
 the advice and consent of the Council, to summon 
 and call General Assemblies, and the Governor 
 with the consent of the Council and Representa- 
 tives was to make laws for the welfare and good 
 government of the Colony "as near as may be 
 agreeable to the laws of England." He was also, 
 with the advice of the Council, to erect Courts of 
 Justice to hear and determine all causes "as near 
 as may be agreeable to the laws of England" with 
 right of appeal to the Privy Council at West- 
 minster. 
 
 It will be at once apparent what a tremendous 
 change was intended to be brought about under 
 this Proclamation. The Canadian had lived 
 under a feudal system, looking up to and relying 
 upon his seignior or feudal lord ; there was now to 
 be an Assembly of Representatives, though few of 
 the Canadians could have any part in selecting 
 the members : the former civil law under which
 
 HISTORICAL 11 
 
 they were born and had lived was to be wholly 
 abolished and the English law introduced, old 
 customs were to become naught and all was to 
 be in confusion. Courts of King's Bench and 
 Common Pleas were in fact established and Jus- 
 tices of the Peace were appointed with inferior 
 jurisdiction. 
 
 While in name and theory, the English law was 
 in force in civil matters, in fact, it was found 
 impracticable to apply it to the full extent, and 
 great uncertainty prevailed. Many if not most 
 of the English-speaking inhabitants of Canada 
 came from the English colonies to the South, some, 
 too, came from England; and these, Anglo-Saxon 
 fashion, practically monopolised the control of 
 the country — and they appear to have "run" the 
 Courts as well. The many French-Canadians and 
 the few British-Canadians found it impossible to 
 agree ; complaint and countercomplaint were made 
 to the King. 
 
 An Executive Council was formed, consisting 
 of a group of officials appointed by the Governor 
 (this was not unlike the old regime) and in it, 
 many well-known men of the Canadian noblesse 
 found a place. 
 
 The French-Canadians ignored the provisions 
 for an Assembly and it seemed impossible to get 
 them to take any interest in a movement for such
 
 12 CONSTITUTION OF CANADA 
 
 a body : it was not thought practicable to institute 
 a representative chamber under such circum- 
 stances. Petitions were presented to the Governor 
 signed by the British residents only, asking for a 
 Legislative Assembly, but the Governor reported 
 to the Home Government that the Canadians had 
 refused to join in the petition. The main, though 
 not perhaps the only difficulty, lay in religion. 
 While the French had been by the Treaty of Paris 
 assured of the free exercise of their religion, it 
 was apparent that no Roman Catholic could be 
 admitted to a British Parliamentary body con- 
 sistently with the principles then professed in 
 reference to Parliament in the United King- 
 dom — while it would be absurd to expect that 
 the numerous French-Canadian Catholics would 
 submit to be governed by a handful of Protestants, 
 not one-hundredth of their number. The English 
 did not want an Assembly with Roman Catholics 
 in it; the French would not have one without. 
 
 The English-speaking part of the community, 
 of whom the early Governors sometimes speak in 
 no very flattering terms, objected even to the 
 French Catholics sitting on their own juries in 
 their own Courts, and often acted in a most 
 arbitrary and intolerant manner. The land was 
 in a state of chaos, and the whole legal machinery 
 paralysed. The Canadians did not like juries,
 
 HISTORICAL 13 
 
 expressing their wonder that the English should 
 think their property safer in the determination of 
 tailors and shoemakers than in that of their 
 Judges — besides jury trials cost too much; the 
 English had then the same firm belief in the jury 
 system which characterises some of their descend- 
 ants to this day.^ 
 
 Finally in June, 1774, the Quebec Act^ passed 
 the Houses of Parliament at Westminster, and the 
 fourth period began. Notwithstanding the vig- 
 orous protest of the Corporation of London, 
 ( influenced probably by the English in Quebec and 
 certainly affecting to act in their interest), "that 
 the Roman Catholic religion, which is known to 
 be idolatrous and bloody" was "established by this 
 bill"; and notwithstanding that the King was 
 reminded by them that his family had been called 
 to the throne in consequence of the exclusion of 
 the Roman Catholic ancient branch of the Stuart 
 line (and he was solemnly told that the failure to 
 provide in civil cases for jury trials, "that wonder- 
 ful effort of human reason," was a breach of the 
 promises made to British immigrants, and vio- 
 lated His Majesty's promises in His Proclamation 
 of 1763), George III signed the bill, and it became 
 law. 
 
 After the bill was passed it was petitioned 
 against and its repeal urged by "His Majesty's
 
 14 CONSTITUTION OF CANADA 
 
 most loyal and dutiful . . . ancient subjects set- 
 tled in the Province of Quebec," but in vain.* 
 
 This Act defined the Province of Quebec as 
 containing all the territory now the Provinces of 
 Quebec and Ontario and the "hinterland" of the 
 English colonies to the South, down the Missis- 
 sippi to Louisiana.^ The Proclamation of 1763 
 was annulled, Roman Catholics were permitted to 
 enjoy the free exercise of their religion and their 
 clergy to receive their accustomed dues — all 
 matters of property and civil rights were to be 
 decided according to the laws of Canada, i.e., 
 French-Canadian laws, but the criminal law of 
 England was to continue. A council appointed 
 by the King was provided for which should legis- 
 late for the Colony, and there was to be an 
 executive council of five as a Privy Council — the 
 scheme for a representative and elective assembly 
 contained in the Proclamation of 1763 was not 
 continued in the Statute, — the Statute, notwith- 
 standing Fox's protest, declaring it "inexpedient 
 to call an Assembly."^" 
 
 During the time the Quebec Act was in incuba- 
 tion, we see no signs of disloyalty on the part of 
 the French-Canadians ; and indeed there could 
 hardly be a real desire on their part to join the 
 discontented colonies. 
 
 It is hard to see how a French-Canadian Catho-
 
 HISTORICAL 15 
 
 lie could imagine that his lot would be bettered by 
 joining with the people of New England, the hated 
 Bastonais, his hereditary foes. We know that 
 in the Thirteen Colonies, both pulpit and Con- 
 gress expressed the greatest alarm at the tolera- 
 tion of popery, that "blood-thirsty, idolatrous 
 and hypocritical creed," and loudly denounced 
 the betrayal of Protestant principles, shown in 
 allowing the free exercise of their religion to the 
 Catholic Canadians. 
 
 Notwithstanding the Address of the Continental 
 Congress of 1774,^^ filled with philosophy and 
 appeals to Beccaria and Montesquieu, which was 
 signed by Henry Middleton, President, translated 
 into French and printed in that language in 
 Philadelphia, and then generally distributed 
 among the Canadians, they remained loyal to the 
 British Crown — Sir Guy Carleton "pursuing the 
 exact reverse in every particular of the infatuated 
 policy which alienated and lost to the Empire the 
 Thirteen Colonies." 
 
 Some of the seigniors who, at this time, en- 
 deavoured to exercise in favour of Britain their 
 feudal right to call the habitants of their 
 seigniories into the field, found them refractory: 
 they refused to bear arms for the conquering 
 British — but at the same time they did not join 
 the Americans in any considerable numbers.
 
 16 CONSTITUTION OF CANADA 
 
 There can be little, if any, doubt that the 
 Quebec Act helped to reconcile the leaders of the 
 Canadians to British rule and so played no small 
 part in assuring the loyalty of French-Canada to 
 the Empire. 
 
 The first Legislative Council under the new 
 system met in August, 1775, the Act coming into 
 force. May 1 of the same year. 
 
 The inhabitants of what is now called Quebec 
 remained in great part French; and as to those 
 in that part of Canada there was little trouble 
 arising from the provisions of the Quebec Act. 
 The English remained discontented for a time 
 with the change in the law in civil matters, but 
 experience showed that Canadian law, based as it 
 was on the Civil Law, was not much different from 
 the English law in commercial matters, which 
 were the concern of many of the English-speaking 
 inhabitants.^^ The English criminal law was not 
 objected to by the Frenchman, — bloody as it was, 
 it was less barbarous than his own. 
 
 In Lower Canada, the disputes between the old 
 and the new Canadians, the recent and the ancient 
 subjects of the Crown, had continued. Of the 
 twenty-two members who formed the first Legis- 
 lative Council, eight indeed were French and 
 Catholic, the Oath of Supremacy having been 
 waived in their favour ;^^ but the English persisted
 
 HISTORICAL 17 
 
 in their attempts to shew "the d d Frenchmen 
 
 the difference between the conquerors and the con- 
 quered" — they feared or pretended to fear their 
 loyalty, charged them semi-officially with being 
 "rank rebels" ; and in general acted as "patriots" 
 (self-styled) are wont to act. 
 
 That was not the only difficulty — the Revolu- 
 tionary War caused the immigration into the 
 western part of Canada, afterwards Canada 
 West,^* of a very large number of Loyalists who 
 had left home and property to follow their flag 
 and retain their allegiance. These were accus- 
 tomed to English law and customs, and fretted 
 under the foreign law to which they were subjected 
 in Canada. 
 
 The French law and customs seemed to these 
 vigorous and sturdy Anglo-Saxons absurd and 
 intolerable: and the Protestantism of the new- 
 comers was repulsive to the devout Catholic 
 French-Canadians. The United Empire Loyalists 
 had come from the New England States and else- 
 where in the Thirteen Colonies and had been accus- 
 tomed to freedom and a large measure of self- 
 government; they could not tolerate the irrespon- 
 sible control of an appointed council, and petition 
 after petition made its way to the King claiming 
 relief.
 
 18 CONSTITUTION OF CANADA 
 
 The Home authorities at length acceded to the 
 request of the new colonists in the West who by 
 1790 were more than 30,000 in number; and 
 what is generally known as the Constitutional 
 Act^^ was passed by the British Parliament in 
 1791. The Act was promoted by Pitt, and 
 naturally met with strong opposition. Before the 
 bar of the House of Commons there was heard a 
 representative of the English colonists in Quebec, 
 the well-known Adam Lymburner; he vigorously 
 protested against any division of the province, and 
 demanded instead, the repeal of the Quebec Act. 
 In the House were heard the usual arguments 
 against Roman Catholics being admitted to a 
 share of the government and against the imposi- 
 tion upon free-born Britons of foreign law which 
 determined rights by the agency of judges instead 
 of juries, whose rules were those derived from the 
 Roman law and not from the semi-divine Common 
 Law of England. The merchants in London 
 having trade relations with Canada also petitioned 
 against it. Fox attacked the bill as not liberal 
 enough — he thought that Canada should have a 
 constitution consistent with the principles of free- 
 dom. He also criticised the provision for the 
 setting aside of lands for the support of the 
 Protestant clergy, and objected to the division 
 of the Colony into two parts of which one would
 
 HISTORICAL 19 
 
 necessarily be almost wholly French, the other 
 English. 
 
 All opposition, however, was overborne by Pitt. 
 By this Act,^® which brought in the fifth period, 
 Canada was divided into two parts, Canada East 
 or Lower Canada, and Canada West or Upper 
 Canada (now Quebec and Ontario). To each 
 were given a Legislative Assembly to be elected 
 by the people and an upper house called the 
 Legislative Council, whose members were nomi- 
 nated for life by the Crown. The Crown also 
 appointed all the public officers, including the 
 members of the Executive Council for each Prov- 
 ince. The free exercise of the Roman Catholic 
 religion was once more guaranteed; and the 
 Crown agreed to set aside one-eighth part of all 
 unallotted Crown lands for the support of a 
 Protestant clergy. The Home authorities, also, 
 reserved the right to levy duties for the regulation 
 of navigation and commerce. 
 
 The object of this Act is described by Lord 
 Granville to be to "assimilate the Constitution of 
 Canada to that of Great Britain as nearly as the 
 difference arising from the manners of the people 
 and from the present situation of the Province, 
 will admit." 
 
 In Upper Canada the first Provincial Parlia- 
 ment met at Newark (now Niagara) in 1792: and
 
 20 CONSTITUTION OF CANADA 
 
 from that time onward the flood of legislation has 
 never failed. Courts were established, the laws of 
 England introduced, new laws made. The Colony 
 rapidly increased in population and wealth — in 
 twenty years the population of Upper Canada 
 was estimated to have risen to 77,000 — and there 
 were generally reasonable harmony and good will. 
 
 In Lower Canada, the English and French- 
 Canadians continued to quarrel till the War of 
 1812 brought about at least an external peace. 
 
 But in both Canadas, the curse of an appointed 
 and irresponsible executive became more apparent 
 as time went on, riches increased and affairs 
 became more complex — benevolent despotism does 
 not answer for any but the simplest communities. 
 
 In the Upper Province, the Executive Council 
 became an oligarchy, nominated by the Governor 
 from among public officers, judges, bishops, mem- 
 bers of the Legislative Council, etc. These were 
 a privileged class, monopolised the offices, obtained 
 large grants of land and generally acted as irre- 
 sponsible favourites of royalty are wont to act. 
 
 The Legislative Assembly fought against this 
 tyranny; but the placemen long bade defiance to 
 the popular body. 
 
 The nominated Legislative Council, too, formed 
 on the model of the House of Lords (but not 
 hereditary ),^^ claimed and exercised the right to
 
 HISTORICAL 21 
 
 reject and even to amend money bills — and as the 
 Crown had a permanent civil list, the Legislative 
 (i.e., the representative) Assembly was helpless/* 
 
 Fierce conflicts arose, the representative body 
 claiming that the Ministers of the Crown should 
 be responsible to them — but the body of oflBce- 
 holders, who were connected by social ties, common 
 interest and sometimes family relationship — and 
 who were accordingly called the "Family Com- 
 pact" — resisted all attacks. 
 
 A rebellion, largely due to the obstinate folly — 
 or worse — of the Governor, broke out at length 
 in 1837, but it was quickly quelled — Canadians 
 have always been too loyal to permit of the 
 success of a rebellion against the Crown. 
 
 In Lower Canada, matters had taken even a 
 worse course — the minority who were English in 
 blood and spirit had grown not only in numbers 
 but in influence — most of the Legislative and 
 Executive Councillors were selected by the Gov- 
 ernors from their ranks. The French-Canadians, 
 loyal as they were, were looked upon still as a 
 conquered people and were to be "kept in their 
 place." The Assembly was naturally almost 
 wholly French and Catholic — while the Councils 
 were largely English and Protestant. The Anglo- 
 Saxon never forgot his dearly prized superiority — 
 his race and language continued to be the very
 
 22 CONSTITUTION OF CANADA 
 
 best. When a Governor replied to the Address 
 from the Assembly in French before speaking in 
 English, he was roundly denounced by the English 
 press. His right to speak publicly any language 
 but his own was denied, and the precedence given 
 to the French language was "a base betrayal of 
 British sovereignty" and "would lead to the 
 degradation of the mother country." One of the 
 ablest of their advocates went so far as to say, 
 "Lower Canada must be English at the expense, 
 if necessary, of not being British" — language as 
 significant as it is intelligible. 
 
 Most of the troubles, however, were financial. 
 The Assembly made the same claims as its sister 
 Assembly in Upper Canada and with the like 
 success — or want of success. 
 
 Petitions were sent to the Home Government 
 by the outraged majority, but in vain. The Eng- 
 lish-Canadians openly expressed their purpose to 
 make Quebec an English colony — and in Lower 
 Canada also a rebellion broke out — and this also 
 was quickly quelled. The two movements were 
 largely independent of each other, although the 
 "Patriots," alias "Rebels," in each province were 
 in communication with those in the other. 
 
 At this stage, the Government at Westminster 
 induced John George Lambton, Lord Durham, to 
 go to Canada and make a thorough investigation
 
 HISTORICAL 23 
 
 into the causes of the troubles and to suggest a 
 remedy. Lord Durham's Report is still an inex- 
 haustible well of fact from which all future his- 
 torians, constitutional and otherwise, must draw. 
 His profound sympathy with all efforts toward 
 freedom, his knowledge of the Constitution of the 
 Motherland and his broad human outlook, all 
 fitted him for his task. It is not too much to say, 
 that all Canadians and all lovers of Constitutional 
 and Representative Government throughout the 
 British world, owe John George Lambton an 
 eternal debt of gratitude. 
 
 As the result of his efforts, the Queen's Message 
 in 1839 recommended the Union of Upper and 
 Lower Canada; but the Government got into 
 trouble, and moreover there was much difference 
 of opinion in Parliament. Finally, however, the 
 broad Imperial views of Lord Durham — because 
 Lord Durham was an Imperialist in the sense in 
 which we now use the term — made their impression 
 upon Lord John Russell and the Prime Minister; 
 and in 1840 the Union Bill drafted by Sir James 
 Stuart was introduced into the House of Commons 
 by Lord John. It was passed without much 
 change or opposition, received the Royal assent 
 July 23, 1840, and came into force in February, 
 1841, and thus began the sixth period. 
 
 The main characteristic of the constitution
 
 24 CONSTITUTION OF CANADA 
 
 given by this Act is that Responsible Government 
 was now at length granted — Her Majesty's 
 Government in Canada were responsible to the 
 people of Canada and not simply to the Home 
 authorities. Before this, while full legislative 
 powers were given to the Provinces, Responsible 
 Government was withheld — and the only remedy 
 the people had when their grievances grew acute, 
 was to refuse supply. 
 
 By the Union Act, however, much was to be 
 changed. The two Provinces became the Province 
 of Canada, for which a Legislative Assembly was 
 to be elected with forty-two members from each 
 section. A Legislative Council was to be nomi- 
 nated by the Governor, not less in number than 
 twenty, increased from time to time as should be 
 thought fit, the Councillors to hold office for life. 
 The Council was to be presided over by a Speaker 
 appointed by the Government; the Assembly was 
 to elect its own Speaker. All written and printed 
 documents referring to the election of members, 
 summoning and proroguing of the Legislature, 
 and proceedings of either House, were to be in 
 English alone. The laws in force in either section 
 of Canada were to continue in force until repealed 
 or amended ; and courts were continued, etc. The 
 territorial and other hereditary revenues of the 
 Crown were surrendered for a fixed sum — and it
 
 HISTORICAL 26 
 
 may be said in general that the new Constitution 
 was as exact a copy of that of the United King- 
 dom as circumstances would allow/^ Lord Dur- 
 ham wrote that it was not "possible to secure 
 harmony in any other way than by administering 
 the government on those principles which have 
 been found perfectly efficacious in Great Britain," 
 and while he would not "impair a single preroga- 
 tive of the Crown," and he believed "that the 
 interests of the people of these provinces require 
 the protection of prerogatives which have not 
 hitherto been exercised" — still "the Crown must 
 submit to the necessary consequences of repre- 
 sentative institutions." 
 
 The population of Lower Canada was at this 
 time about 630,000, while that of Upper Canada 
 was about 470,000 — the Lower Canadians felt 
 that it was an injustice that they should have no 
 more members than the Upper Province — those 
 in the Upper Province thought that three English- 
 speaking Canadians were worth at least four 
 French-Canadians, — this grievance, as we shall 
 see, changed face before many years. The French- 
 Canadians also felt aggrieved by the proscription 
 of their language. Their complaints were not 
 unnatural — the provisions complained of arose 
 from Lord Durham's view that it was necessary 
 to unite the two races on such terms that the
 
 26 CONSTITUTION OF CANADA 
 
 English would be given the domination. He said, 
 "without effecting the change so rapidly or so 
 roughly as to shock the feelings or to trample on 
 the welfare of the existing generation, it must 
 henceforth be the first and steady purpose of the 
 British Government to establish an English popu- 
 lation, with English law and language in this 
 Province, and to trust its government to none but 
 a decidedly English legislature." 
 
 This object wholly failed of fulfilment, — and I 
 venture to think it will continue to fail of fulfil- 
 ment, so long as the French-Canadian mother 
 continues to do her part as she has been doing 
 it — the French remained French and their in- 
 fluence in Parliament steadily increased. They 
 had been ostracised politically by the first Gov- 
 ernor, and the acceptance by his successor of a 
 Government with a French-Canadian at its head, 
 struck the High Tory Duke of Wellington with 
 horror and dismay. The first Legislative Council 
 of twenty-four members contained eight French- 
 Canadians. 
 
 At first the government was conducted on the 
 principle that the French were inferior; but this 
 idea speedily vanished, and before long, prominent 
 French-Canadians became not only members, but 
 in large measure masters of the Administration. 
 
 The Home administration had retained the
 
 HISTORICAL 27 
 
 power of veto upon all acts of the Legislature by 
 means of the Governor, an Imperial Officer ; and 
 it seemed as time went by almost impossible for 
 those in the Colonial Office (or indeed in any of 
 the offices of the Imperial Government) to learn 
 that Parliamentary Government meant the same 
 thing in Canada as in England, and that Cana- 
 dians, French or English, were much more capable 
 of understanding and deciding what was proper 
 for their country than any Islander in London 
 could be.^^ 
 
 The Governors in Canada came in conflict from 
 time to time with the Legislatures who claimed 
 all the rights of the British Parliament : but on 
 the whole, the new Constitution worked well; and 
 at length the responsibility of the administration 
 to the people's representatives was fully admitted. 
 
 The two parts of the Province were of such 
 different laws, manners, etc., that much of the 
 legislation was for one only of the Canadas ; and 
 gradually the working theory arose that a min- 
 istry must command a majority of the members 
 from each part. This produced endless difficul- 
 ties ; and it was the cause of much intrigue and 
 "log-rolling." 
 
 The Upper Province rapidly increased in wealth 
 and population, overtaking and passing the Lower 
 Province by 1850; and many of its public men
 
 28 CONSTITUTION OF CANADA 
 
 complained of the provision, formerly favourable 
 to their section, that each part should have the 
 same number of representatives. Representation 
 by Population — "Rep. by Pop.," as it was gen- 
 erally called — became a watchword of a whole 
 political party^** in Upper Canada. 
 
 When the Ashburton- Webster Treaty was made 
 in 1842 — the "Ashburton Capitulation," as Lord 
 Palmerston called it — and Maine was thrust like 
 a wedge between Canada and the British colony 
 to the east (without consulting either colony), 
 the attention of all British Americans was called 
 to the necessity of a highway between the divided 
 colonies ; this plan gave way to a scheme for a 
 railway, an "Intercolonial" railway; and in 1852 
 the Governments of Canada and New Brunswick 
 agreed to build a line down the valley of the 
 St. John. But this plan passed from an active 
 stage when the Colonial Minister at Westminster 
 refused to guarantee the cost. From th»t time 
 on, however, Canada, New Brunswick and Nova 
 Scotia never wholly lost sight of the project; and 
 various attempts were made to revive it. 
 
 These and other matters influenced statesmen 
 of all parties and provinces to seek a remedy : and 
 the plan of Lord Durham outlined in his Report, 
 for the Confederation of all the British American 
 Colonies was from time to time made the subject
 
 HISTORICAL 29 
 
 of discussion. He was the first man in a respon- 
 sible position to recommend the union of all the 
 British American Colonies. ^^ As early as 1858 a 
 responsible Minister of the Crown in Canada, Mr. 
 (afterwards Sir) Alexander T. Gait, openly advo- 
 cated it and moved for the appointment of a 
 committee to ascertain the views of the people of 
 the Lower Provinces and of the Imperial Govern- 
 ment. In 1861 Mr. (afterwards Sir) John A. 
 Macdonald (first Prime Minister of the Dominion 
 of Canada), while opposing the principle of "Rep. 
 by Pop.," said that the only feasible scheme as a 
 remedy for the evils complained of was a Confed- 
 eration of all the Provinces. And at length in 
 1864 he effected an agreement and a coalition 
 with his strongest political foe, Mr. George 
 Brown,^^ to secure this object. 
 
 Before this time the Colonial Secretary at 
 Westminster had assured the Governor-General 
 that any union, partial or complete, suggested 
 with the concurrence of the Colonies themselves, 
 would be most favourably considered by the Home 
 Government. 
 
 The Lower Provinces had tired of the fruitless 
 negotiations with Canada, and had in the session 
 of their respective Parliaments in 1864 authorised 
 the appointment of delegates to discuss and if 
 possible to bring about a union of the Maritime
 
 30 CONSTITUTION OF CANADA 
 
 Provinces, i.e., New Brunswick, Nova Scotia and 
 Prince Edward Island. A meeting of these dele- 
 gates had been set for September 1, 1864. The 
 Canadians felt that it would be advisable to take 
 advantage of this opportunity ; and accordingly 
 eight members of the Coalition Government of 
 both sides of politics, went to Charlottetown, 
 Prince Edward Island, met the Conference and 
 were asked to and did express their views. The 
 Maritime delegates are understood to have come 
 to the conclusion that a Maritime Union was im- 
 practicable, but that a union on the larger basis 
 might be effected. In order that the feasibility 
 of such a Confederation might be discussed and 
 considered from every point of view, the Charlotte- 
 town Conference was adjourned; and it was 
 agreed to hold another Conference at Quebec, to 
 be attended by delegates from all the provinces 
 interested. This Conference met in the Parlia- 
 ment Buildings, Quebec, October 10, 1864, and 
 was attended by delegates from Canada, New 
 Brunswick, Nova Scotia, Prince Edward Island 
 and Newfoundland; resolutions were adopted 
 which formed the basis of the British North 
 America Act subsequently passed, which estab- 
 lished the Dominion of Canada. 
 
 Beyond any question, the American Civil War 
 and the "Trent affair" of 1861 had much to do
 
 HISTORICAL 31 
 
 with hastening the movement for Union. So also 
 had the anticipated "revocation" of the Reci- 
 procity Treaty ; and when this Treaty was in fact 
 abrogated in 1866, its abrogation had no little 
 effect in hastening matters to a conclusion — but 
 into that I cannot enter here ; it is too complicated 
 and extensive a question. 
 
 The Imperial Government expressed their ap- 
 proval of the proposed scheme as soon as it was 
 brought to their notice (with two exceptions of 
 no moment for our present discussion). 
 
 Both Houses of Parliament in Canada approved 
 of the scheme in 1865 by large majorities; the 
 New Brunswick Government, however, met with 
 defeat at the polls when they ventured on an 
 appeal to the electorate without bringing the 
 question before the Legislature. The Nova Scotia 
 House of Assembly in 1866 gave their adherence 
 to the project by a majority vote of 31 to 19; 
 and in the same year the former Government in 
 New Brunswick were returned by a large majority 
 at a new election ; this new election had been 
 ordered by the Governor through what many 
 would consider a piece of sharp practice — the 
 whole story certainly makes amusing reading. 
 The House in that Colony then approved the plan 
 a large majority. 
 
 In 1865, and again in 1866, Prince Edward
 
 32 CONSTITUTION OF CANADA 
 
 Island by her Legislature in emphatic terms 
 refused to enter into the proposed Union. 
 Canada, New Brunswick and Nova Scotia sent 
 delegates to England for the necessary legislation 
 by the Imperial Parliament. Prince Edward 
 Island was again invited to join, and its repre- 
 sentative, the Premier, then in London, was 
 favourably impressed with the terms offered; but 
 on his return home, his Government was defeated. 
 Newfoundland declined to come into the Union. 
 
 Accordingly the British North America Act^^ 
 was passed by the Parliament at Westminster in 
 1867, creating the Dominion of Canada, com- 
 posed of four Provinces, Ontario (formerly Upper 
 Canada), Quebec (formerly Lower Canada), 
 Nova Scotia and New Brunswick. On July 1, 
 1867, was the first "Dominion Day" celebrated. 
 
 It will now be proper to go back and say a 
 word on the Constitutional History of the two 
 Maritime Provinces. 
 
 The French had been strangely blind to the 
 importance of the seaboard of North America: 
 and while they had some settlements on the Island 
 of Cape Breton, they left the Atlantic shore of 
 Nova Scotia in great measure to the English. A 
 considerable number of Acadians were settled in 
 the Annapolis Valley near Port Royal, and some 
 in other parts of Nova Scotia : and in these settle-
 
 HISTORICAL 33 
 
 ments the feudal system was in force as in Quebec, 
 but this was not the case where the English had 
 settled. 
 
 We may term the period of French rule the 
 first period also in Nova Scotia's Constitutional 
 History. There was no clean-cut period of mili- 
 tary rule as in Quebec and we may without 
 violence to language consider the second period 
 as beginning with the Commission from King 
 George I to Colonel Richard Phillips, dated July 
 9, 1719. For while there was much of Nova 
 Scotia still French, the regular rule of the English 
 was established at Annapolis Royal under that 
 instrument. 
 
 By this Commission, Colonel Phillips as Gov- 
 ernor was empowered to appoint fitting and 
 discreet persons not exceeding twelve in number 
 to form a Council for the Province, and in 1720 
 on his arrival, via Boston, at Annapolis, he ap- 
 pointed ten Councillors, all but one from those 
 officially connected with the garrison. An 
 Assembly was suggested by Governor Armstrong 
 as early as 1731 and again the following year; 
 and at length in 1748 Governor Shirley prepared 
 and submitted a plan for the government of the 
 Colony. This plan which contemplated a Charter 
 based upon that of Massachusetts failed to be 
 accepted. After the termination in 1748 of the
 
 34 CONSTITUTION OF CANADA 
 
 war between Britain and France, Halifax was 
 founded (in 1749) and became the seat of 
 Government; and while for some years the 
 Governor ruled with the assistance of a Council 
 alone, his instructions contemplated also an 
 Assembly elected by the people. Such an 
 Assembly met for the first time in 1758 with 
 nineteen members — ushering in the third period. 
 
 There were the usual quarrels between the 
 Houses over privilege, etc. Roman Catholics 
 were admitted in 1781 and as early as 1790 there 
 were disputes over money bills. As elsewhere the 
 popular House "daringly opposed the King's 
 Government," and shortly after the opening of 
 the century there seems to have been a kind of 
 "Family Compact" in the Council. As time went 
 by, the demand for Responsible Government which 
 had been at first somewhat inarticulate became 
 more and more insistent. 
 
 A real "Cabinet" makes its appearance by 
 1842 and by 1848 is thoroughly established 
 without change of the form of government by 
 legislation: and thus the third period with an 
 appointive Council and an elected Assembly but 
 with the principle of responsibility of the Admin- 
 istration to the lower House continued till Federa- 
 tion in 1867 under the British North America
 
 HISTORICAL . 36 
 
 Act of that year — when she began her fourth 
 period (fiat aeterna). 
 
 Nova Scotia or Acadie was composed originally 
 of what is now the peninsular part of Nova 
 Scotia, New Brunswick, part of Quebec south of 
 St. Lawrence and part of Maine down to the 
 Kennebec. Cape Breton was annexed to Nova 
 Scotia in 1820 having theretofore been a separate 
 Colony; and New Brunswick had been cut off in 
 1784. With New Brunswick went the portion 
 of Quebec and Maine. Members from part of 
 what became New Brunswick had, however, sat 
 in the Nova Scotia House of Assembly as early as 
 1765. 
 
 At the time of its separation from Nova Scotia, 
 New Brunswick had only about 16,000 inhabit- 
 ants : but a separate Government was formed, the 
 Governor (Thomas Carleton, brother of Sir Guy 
 Carleton, Lord Dorchester, but a different kind 
 of man), a Council of nine members and in 1786 
 a Legislative Assembly. 
 
 In New Brunswick the same kind of struggles 
 took place as in Canada and Nova Scotia: the 
 particular incidents were somewhat different but 
 the contending principles the same. By the time 
 of Confederation, however. New Brunswick was in 
 the same happy condition as its sister colonies. 
 
 New Brunswick accordingly had her five
 
 36 CONSTITUTION OF CANADA 
 
 periods — the first until 1719 under French rule, 
 the second 1719 to 1758 under Governor and 
 Council, the third from 1758 to 1784 in connec- 
 tion with and part of Nova Scotia, the fourth 
 from 1784 to 1867 as a separate colony, and the 
 fifth as a Province of Canada. 
 
 Although Prince Edward Island refused to 
 become part of the Dominion in 1867, Canada 
 did not despair: in 1869 another offer was made 
 to Prince Edward Island, but this was also 
 refused. Negotiations, however, renewed in 1872 
 were more successful, — they had got into financial 
 difficulties in that little Province, — and the Island 
 joined the Dominion as a Province, July 1, 
 1873, the formal Order-in-Council being dated at 
 Windsor, June 26, 1873. 
 
 Prince Edward Island was originally called 
 Isle of St. John. It was apparently discovered 
 by Cabot but was claimed by the French, who 
 established there a few fishing stations. After the 
 Treaty of Utrecht many Acadians made their 
 homes in the Island and brought their laws and 
 customs with them, but the British took posses- 
 sion in 1758 on the capture of Louisburg; in 1763 
 the Island was formally ceded to Britain and in 
 the same year placed under the government of 
 Nova Scotia. 
 
 Lord Egmont tried to get a grant of the
 
 HISTORICAL 37 
 
 Island but failed, and in 1767 it was practically 
 all granted to a number of persons on condition 
 of their bringing in settlers, etc. In 1769 it 
 was made a separate Colony and a Governor 
 appointed, arriving in 1770. He was commanded 
 in his instructions to call a "lower house of 
 representatives," and in 1773 the first Assembly 
 met. Before this from 1770 the Governor had 
 acted by and with the consent of a Council as in 
 the other Colonies. The main difficulties in this 
 Island arose from the land having been granted 
 to a few proprietors ; and these difficulties were 
 rather economical than constitutional. There 
 was, however, not a little of the same want of 
 harmony between the elected and the appointed 
 with the Governor and the Home authorities. 
 And well before 1867 Prince Edward Island (she 
 received this name in 1799) was abreast of her 
 sister colonies in Responsible Government."* 
 
 In the meantime the Dominion had in 1870 
 bought out the Hudson Bay Company; and out 
 of part of the territory so acquired was formed 
 the Province of Manitoba by Act of the Dominion 
 Parliament. ^^ 
 
 In the far West was the Island of Vancouver, 
 made a separate Colony in 1859, but reunited with 
 the mainland in the Colony of British Columbia 
 in 1866 (the mainland of British Columbia re- 
 
 6 
 
 ^ HQ <> Q
 
 38 CONSTITUTION OF CANADA 
 
 ceived Representative Government in 1858). In 
 1870 an arrangement was entered into that this 
 Colony should also join the Dominion upon 
 condition of the construction by Canada of the 
 Canadian Pacific Railway. The union was ef- 
 fected July 30, 1871, by an Order-in-Council at 
 Windsor, May 16, 1871. 
 
 More' recently two more Provinces have been 
 formed out of part of the enormous territory of 
 our Great West, viz.. Alberta and Saskatchewan, 
 constituted by the Acts of the Dominion Parlia- 
 ment,'*' coming into force September 1, 1905. 
 
 The remainder of the Continental British ter- 
 ritory is divided into the Yukon and Northwest 
 Territories under Territorial administration, and 
 Labrador, this last under the care of New- 
 foundland. 
 
 Newfoundland had been officially represented 
 at the Quebec Conference, and the resolutions of 
 the delegates to the Quebec Conference contained 
 a provision that she might enter the proposed 
 Union, and they set out the terms upon which she 
 might do so. The British North America Act 
 made provision for such a proceeding; and there 
 were negotiations of a more or less informal kind 
 looking to her coming into the Dominion. In 1868 
 terms of Union were arranged with the Govern- 
 ment of the Island, but that Government suffered
 
 HISTORICAL 39 
 
 defeat at the polls and the arrangement was not 
 carried out. At least once since that time, repre- 
 sentatives from the "Ancient Colony" have come 
 to Ottawa with a view to their country uniting 
 her fortunes with those of the Dominion; but the 
 negotiations proved abortive; and Newfoundland 
 still stands alone. 
 
 The Dominion of Canada has thus her nine 
 provinces, all of which have (speaking generally) 
 the same legislative rights and powers.^^
 
 NOTES TO LECTURE I 
 
 1 14 George III, c. 83. 
 
 2 The quotations following are from an address on The 
 Constitutional History of Canada by myself delivered 
 before the Canadian Club of Toronto, November 6, 1911. 
 
 3 1 say "speaking generally," but where laymen like 
 soldiers are called upon to decide cases at law, they are apt 
 to go by the light of nature or by what they have under- 
 stood to be law. In some instances the Commanders were 
 known, and in more suspected, to have decided according 
 to their own view of right or the law to which they had 
 been accustomed (as they understood it) rather than the 
 law and customs of the conquered people. That is to be 
 expected in every conquered country. 
 
 The terms of surrender are set out in Kingsford's 
 History of Canada, Vol. IV, pp. 400 sqq. 
 
 4 The fuU text of this Proclamation wiU be found in 
 Vol. Ill of the Report of the Canadian Archives, 1907, 
 "Documents relating to the Constitutional History of 
 Canada, 1759-1791," by Drs. Adam Shortt and Arthur G. 
 Doughty, pp. 119 sqq. (English edition). All but the 
 description of the three Provinces of East Florida, West 
 Florida and Grenada is given in Kingsford's History of 
 Canada, Vol. V, pp. 142-145. 
 
 5 "The Government of Quebec bounded on the Labrador 
 Coast by the River St. John, and from thence by a line 
 drawn from the head of that River through the lake St. 
 John to the South end of the Lake Nipissim; from thence 
 the Said Line crossing the River St. Lawrence and the 
 Lake Champlain in 45 degrees of North Latitude, passes 
 along the High Lands which divide the Rivers which empty 
 themselves into the said River St. Lawrence from those 
 which fall into the Sea; and also along the North Coast of
 
 NOTES TO LECTURE I 41 
 
 the Baye des Chaleurs and the Coast of the Gulph of St. 
 Lawrence by the West End of the Island of Anticosti, 
 terminates at the aforesaid River St. John." 
 
 The terminology "the Highlands which divide those 
 rivers that empty themselves into the river St. Lawrence 
 from those which fall into the Atlantic Ocean" is used to 
 express one of the boundary lines between the territory 
 of the United States and that of Britain in the Definitive 
 Treaty of Peace concluded September 3, 1783, Article II 
 following No. II of the Provisional Articles concluded 
 November 30, 1782. "Treaties and Conventions concluded 
 between the United States of America and other Powers 
 since July 4, 1776." (Washington, Government Printing 
 Office, 1889, pp. 370, 371, 376.) 
 
 As is well known there arose much difficulty in fixing 
 this line. In 1803 a Commission to settle it was agreed to 
 by Lord Hawkesbury (afterwards Earl of Liverpool) and 
 Rufus King, the American Minister; but this the Senate 
 of the United States refused to ratify. In the negotiations 
 at Ghent in 1814, the British Commissioners endeavoured 
 to have the line revised; but the American Commissioners 
 declined, and it was agreed by Article V of the Treaty of 
 Ghent ("Treaties," etc., p. 402) to leave the dispute to two 
 Commissioners, one on each side, named by the King and 
 the President respectively. If the Commissioners could not 
 agree they were to report to their Governments and the 
 matter was to be referred "to some friendly sovereign or 
 State." The King named Thomas Barclay of Annapolis, 
 Nova Scotia, a pupil of Jay's, who, born in New York State, 
 had fought on the Loyalist side during the Revolution and 
 attained the rank of Colonel. He afterwards practised law 
 in Nova Scotia, and became a member and Speaker of the 
 Legislative Assembly; he was also for a time British Consul 
 at New York: the American Commissioner was Cornelius 
 P. Van Ness, subsequently Chief Justice and Governor of 
 Vermont. They were unable to agree and so reported. It
 
 42 CONSTITUTION OF CANADA 
 
 therefore became proper to appeal to "some friendly sover- 
 eign or State." A convention was entered into September 
 29, 1827, under which WiUiam, King of the Netherlands, 
 was chosen arbitrator. January 10, 1831, he made an 
 award; the American Minister promptly protested against 
 it, and the British Government did not insist. The line 
 was afterwards settled by diplomatic negotiation by Ash- 
 burton and Webster, and is set out in the Ashburton 
 Treaty of August 9, 1842. 
 
 6 While in Canada everyone charged with a serious 
 criminal offence has a right to be tried by a jury if he so 
 desires, we in Ontario have got rid of trial by jury in the 
 vast majority of civil cases. In the Supreme Court not 25 
 per cent of civil cases are tried by a jury and in the inferior 
 Courts a still smaller percentage are so tried. Except in 
 a small class of cases, the trial Judge has the power con- 
 stantly exercised of striking out a jury notice even if one 
 party or the other desires trial by jury. There is no feeling 
 against the practice, and we are about in the state of the 
 French-Canadians of a century and a half ago in our 
 estimate of the comparative value of Judge and jury as a 
 trial tribunal, and expense is still a matter of consideration 
 to us. As I said to the Illinois Bar Association in an 
 address delivered at Chicago May 20, 1914: 
 
 "In more than thirty years' experience I have known of 
 only two appeals against the action of a trial judge in 
 striking out a jury notice — both unsuccessful. 
 
 "The saving of time — and wind — :is enormous. The 
 opening and closing speeches of counsel to the jury and the 
 charge of the judge are done away with; in argument there 
 are very few judges who care to be addressed like a public 
 meeting and quite as few who are influenced by mere 
 oratory — all indeed must ex offlcio be patient with the 
 tedious and suffer fools gladly. Vehement assertion, gross 
 personal attacks on witnesses or parties, invective, appeal 
 to the lower part of our nature, are all at a discount; and
 
 NOTES TO LECTURE I 43 
 
 in most cases justice is better attained, rights according 
 to law are better ensured. Moreover during the course 
 of a trial a very great deal of time is not uncommonly 
 wasted in petty objections to evidence, in dwelling upon 
 minor and almost irrelevant matters which may influence 
 the jury, wearisome cross-examination and reiteration, etc., 
 all of which are minimised before a judge. 
 
 "But it is never to be forgotten that the courts belong 
 to the people, and the wishes — even the prejudices — of the 
 people must be borne in mind. If for any reason the body 
 of the people were to come to the opinion that a judge 
 trial was not a just trial, justice would not be satisfactorily 
 administered if that form of trial were adopted." 
 
 Of course it has often been and occasionally still is said 
 that trial by jury is the Palladium of our liberties, but I 
 venture to think that if our liberties get in so bad a way 
 that it requires such a Palladium to save them, jury trial 
 will be quite as ineffective as the original Palladium was 
 to save Troy. 
 
 ^ The full text of this important Statute will be found 
 in the Report of the Canadian Archives already cited, pp. 
 401 sqq. Petitions of French and of English subjects, etc., 
 will be found pp. 354 sqq. Petitions for the repeal of the 
 Act, pp. 414 sqq. 
 
 8 "Ancient" subjects from the old land or the American 
 Colonies to distinguish them from the "new" subjects, the 
 French-Canadians. Zachary Macaulay, the father of the 
 celebrated Thomas Babington, Lord Macaulay, "was one 
 of the petitioners. 
 
 9 Those who have studied botany may have noticed 
 certain plants described as "Canadensis," "Canadense," 
 which are not found in what we now call Canada at all. 
 This is explained by the fact that when the botanical termi- 
 nology was fixed, Canada included practically all the terri- 
 tory bordering on the Mississippi down as far as Louisiana. 
 
 10 The fact is that it was not thought safe to trust power
 
 44 CONSTITUTION OF CANADA 
 
 to a Roman Catholic Legislature. Religious feud dies hard; 
 the A. P. A. is still alive even in this land of tolerance and 
 freedom. 
 
 11 An English translation of this address (the original 
 is in the Library of Congress) will be found in Kingsford's 
 History of Canada, Vol. V, pp. 262 sqq. The chief grounds 
 of complaint which Congress thinks the "Friends and 
 Fellow Subjects" in Canada have are having (1) no share 
 in the government, (2) no trial by jury, (3) no writ of 
 Habeas Corpus, (4) no tenure of land by easy rents, (5) no 
 freedom of the press. 
 
 In the Address by the Congress to the People of Eng- 
 land dated from Philadelphia, September 5, 1774, the 
 Quebec Act is said to be "hostile to British America." 
 The Address goes on: "We cannot help deploring the 
 unhappy condition to which it has reduced the many Eng- 
 lish settlers. . . . They are now the subjects of an arbi- 
 trary Government, deprived of trial by jury and when 
 imprisoned cannot claim the benefit of the habeas corpus 
 act, that great bulwark and palladium of English liberty; 
 nor can we suppress our astonishment that a British Par- 
 liament should ever consent to establish in that Country 
 (Canada) a religion that has deluged your island in blood, 
 and dispersed impiety, bigotry, persecution, murder and 
 rebellion through every part of the world." Kingsford's 
 History of Canada, Vol. V, pp. 246, 247, note. 
 
 It is a fact not noticed by many people that the nation 
 which boasts, and rightly boasts, that it has no established 
 church, but that all creeds are equally recognised in its 
 dominions, began its career by protesting against allow- 
 ing the French-Canadians to use their own religion in 
 Quebec, that "blood-thirsty, idolatrous and hypocritical 
 creed." 
 
 12 Except the law of real estate which in countries under 
 the Common Law of England is a "rubbish heap which has 
 been accumulating for hundreds of years and . . . is . . .
 
 NOTES TO LECTURE I 45 
 
 based upon feudal doctrines which no one (except pro- 
 fessors in law schools) understands," law is generally based 
 on common sense and justice — and most of the laws of all 
 civilised countries are very close to each other. 
 
 13 The Quebec Act, 14 George III, c. 83, provided "that 
 no Person, professing the Religion of the Church of Rome 
 and residing in the said Province shall be obliged to take 
 the oath required by the . . . Statute passed in the First 
 Year of the Reign of Queen Elizabeth (i.e., the Oath of 
 Supremacy) . . . but that every such person . . . shall be 
 obliged ... to take and subscribe" an oath of which the 
 form is given not objectionable to Roman Catholics. It 
 was in Canada that first in British territory since the 
 Reformation Roman Catholics were allowed to sit as 
 legislators. 
 
 14 The main lines of immigration were toward Cornwall 
 and Kingston on the St. Lawrence, Niagara across the 
 Niagara River and to the left bank of the River Detroit. 
 Of course a great many came to the southern part of what 
 is now the Province of Quebec, particularly to St. John 
 and the "Eastern Townships." 
 
 15 (1791) 31 George III, c. 31. See for the full text the 
 Archives Report already mentioned, pp. 694 sqq. 
 
 16 This is not strictly correct — speaking with strict legal 
 accuracy the division of the Province of Quebec into two 
 provinces, i.e.. Upper Canada and Lower Canada, was 
 effected by the Royal Prerogative. The message sent to 
 Parliament expressing the Royal intention is to be found 
 copied in the Ontario Archives Reports for 1906, p. 158. 
 After the passing of the Quebec Act, an Order in Council 
 was passed August 34, 1791 (Ontario Archives Reports for 
 1906, pp. 158 sqq.), dividing the Province of Quebec into 
 two provinces and under the provisions of section 48 of the 
 Act directing a Royal warrant to authorise "the Governor 
 or Lieutenant-Governor of the Province of Quebec or the 
 person administering the government there, to fix and
 
 46 CONSTITUTION OF CANADA 
 
 declare such day as they shall judge most advisable for the 
 commencement" of the effect of the legislation in the new 
 provinces, not later than December 31, 1791. Lord Dor- 
 chester (Sir Guy Carleton) was appointed September 12, 
 
 1791, Captain-General and Governor-in-Chief of both prov- 
 inces and he received a Royal warrant empowering him to 
 fix a day for the legislation becoming effective in the new 
 provinces (see Ontario Archives Reports for 1906, p. 168). 
 In the absence of Dorchester, General Alured Clarke, 
 Lieutenant-Governor of the Province of Quebec, issued, 
 November 18, 1791, a proclamation fixing Monday, Decem- 
 ber 26, 1791, as the day for the commencement of the said 
 legislature (Ontario Archives Reports for 1906, pp. 169- 
 171). Accordingly, technically and in law, the new province 
 was formed by Order-in-Council, August 24, 1791, but there 
 was no change in administration until December 26, 1791. 
 
 17 There was a very curious provision in the Act of 1791, 
 which might have proved mischievous: Section 6 authorised 
 the Crown to annex to any hereditary title of honour, rank 
 or dignity conferred by Letters Patent under the Great 
 Seal of the Province, an hereditary right of being sum- 
 moned to the Legislative Council. This right was never 
 exercised and the Canadas fortunately escaped an heredi- 
 tary second house of Parliament. 
 
 18 When the first Parliament of Upper Canada met at 
 Newark (Niagara-on-the-Lake), Monday, September 17, 
 
 1792, His Excellency the Lieutenant-Governor, Colonel John 
 Graves Simcoe, in the Speech from the Throne, said to the 
 members of the Legislative Council and Legislative 
 Assembly (or House of Commons) : 
 
 "I have summoned you together under the authority of 
 an Act of Parliament of Great Britain passed in the last 
 year and which has established the British Constitution, 
 and also the forms which secure and maintain it in this 
 distant country. 
 
 "The wisdom and beneficence of our Most Gracious
 
 NOTES TO LECTURE I 47 
 
 Sovereign and the British Parliament have been eminently- 
 proved, not only in the imparting to us the same form of 
 Government, but also in securing the benefit of the many 
 provisions that guard this memorable Act; so that the 
 blessings of our invaluable constitution thus protected and 
 amplified we may hope will be extended to the remotest 
 posterity . . ." 
 
 Both Houses made a most loyal address in answer, that 
 of the Council following closely the wording of the Speech 
 from the Throne. 
 
 In his Speech from the Throne closing this Session, 
 Simcoe said that the Constitution of the Province was "the 
 very image and transcript of that of Great Britain." 
 
 (The Speech from the Throne and the Answers will be 
 found in the Seventh Report of the Bureau of Archives, 
 Ontario, 1910, pp. 1-3; Sixth Report of the Bureau of 
 Archives, Ontario, pp. 2-3. The closing speech is on pages 
 11 and 18 respectively.) 
 
 From the very beginning of the two Provinces of 
 Canada it was contended that the Constitution was the 
 "very image and transcript" of that of Great Britain, and 
 most of the conflicts between Governors and Parliament, 
 and between the two Houses of Parliament arose from the 
 contention that the British Constitution was not followed 
 in the government of the Canadas. 
 
 The Union Act was (1840) 3 & 4 Vic, c. 35 (Imp.). 
 
 19 The intense conservatism — I am not using "conserva- 
 tism" in the political sense — of the average Home Minister 
 or official may not be considered strange when we see even 
 Gibbon, the learned historian, using such language as this: 
 
 "If you begin to improve the constitution you may be 
 driven step by step from the disfranchisement of Old 
 Sarum to the King in Newgate, the Lords voted useless, 
 the Bishops abolished and a House of Commons sans 
 culottes." Old Sarum was, you remember, a field, which 
 had sent members to the House of Commons in early times
 
 48 CONSTITUTION OF CANADA 
 
 when it was a city, and continued to do so when there were 
 no persons living there at all. The House of Lords has, 
 indeed, been in our own day at length, almost voted useless, 
 and as for the House of Commons, there is no member 
 there now in knee breeches, they are all found with long 
 trousers, and so are "sans culottes" in very fact. 
 
 Even greater men (perhaps) were subject to the same 
 horrifying fears, for we may notice the predictions of 
 Robert Southey. He was a poet and a man of great 
 capacity. They were collected long ago by Mr. PhiUips 
 of The Times. In 1803 Southey proclaimed that "the 
 Protestant Dissenters wUl die away. Destroy the test and 
 you kUl them." But it was the overthrow of Monarchy 
 which was always in his view. "The more I see, the more 
 I read, and the more I reflect," he writes in 1813, "the more 
 reason there appears to me to fear that our turn of revolu- 
 tion is hastening on." In 1815 he writes: "The foundations 
 of Government are undermined. The props may last during 
 your lifetime and mine, but I cannot conceal from myself 
 a conviction that at no very distant day the whole fabric 
 must fall." In 1816 he writes: "The only remedy (if even 
 that be not too late) is to check the press." In 1820: 
 "There is an infernal spirit abroad, and crushed it must be. 
 The question is whether it will be cut short in its course or 
 suffered to spend itself like a fever. In the latter case we 
 shall go on, through a bloodier revolution than that of 
 France to an iron military Government." In 1823: "The 
 repeal of the Test Act will be demanded, and must be 
 granted. The Dissenters will get into the corporations. 
 (That was at the time it was suggested that a man who 
 did not happen to belong to the Church of England might 
 possibly not be a bad member of Parliament. The idea that 
 a Baptist, a Unitarian, or an Anything-arian, should be 
 allowed to be a member of a municipal corporation, was 
 thought to be a terrible thing in those days.) Church 
 property will be attacked in Parliament. Reform in
 
 NOTES TO LECTURE I 49 
 
 Parliament will be carried; and then — FAREWELL, A 
 LONG FAREWELL, TO ALL OUR GREATNESS." 
 When the Catholic Relief Bill passed, he prophesied the 
 results: "The Protestant flag will be struck, the enemy 
 wUl march in with flying colours, the Irish Church wiU be 
 despoiled, the Irish Protestants will lose heart, and great 
 numbers will emigrate, flying while they can from the 
 wrath to come." In 1832 it was proposed to pass the 
 Reform Bill — "The direct consequence of Parliamentary 
 reform must be a new disposal of Church property, and 
 an equitable adjustment with the fund-holders — terms which 
 in both cases mean spoliation." He was disposed to pray 
 that "the cholera morbus may be sent us as a lighter plague 
 than that which we have chosen for ourselves." The King 
 threatens to make Peers! This also was suggested but the 
 other day. "Nothing then remains for us but to await the 
 course of revolution. I shall not live to see what sort of 
 edifice will be constructed out of the ruins, but I shall go to 
 rest in the sure confidence that God will provide as is best 
 for His Church and people." Later on, in 1838, he writes: 
 "I am not without strong apprehensions that before this 
 year passes away London will have its Three Days." And 
 so forth, and so forth. Robert Southey had not a keen 
 sense of humour. 
 
 20 The "Clear Grit," Liberal or Reform Party. 
 
 21 This had been recommended long before by Chief 
 Justice WiUiam Smith (a graduate of Yale) and by the 
 well-known agitator Robert Fleming Gouray — no doubt also 
 by others. 
 
 22 The Honourable George Brown of the Toronto Globe 
 was the leader of the "Clear Grit" Party and second to 
 Macdonald only (if to him) in personal influence. 
 
 23 (1567) 30-31 Vic, c. 3 (Imp.). 
 
 24 An incident in the early history of Prince Edward 
 Island may be of interest to Americans. In 1776 two 
 American armed vessels had been sent to the Gulf to
 
 50 CONSTITUTION OF CANADA 
 
 intercept British ordnance and store-ships. They landed 
 at Charlottetown, without opposition, took the Adminis- 
 trator and some of his civil officers prisoners and with the 
 Great Seal of the Island and such valuable booty as they 
 could lay their hands on, placed them on board ship and 
 took them to New England — the American has always 
 been thorough in all his undertakings. Washington had his 
 headquarters at Cambridge: when the exploit was reported 
 to him, he dismissed the principal officers, saying that they 
 had left undone what they were sent to do and done what 
 they should not have done. He did not accept the maxim, 
 "AU is fair in war," and even the carrying off of non- 
 combatant enemies without enslavement did not meet his 
 approval. O si sic omnia. 
 
 25 Canadian Act, 33 Vic, c. 3 (May 12, 1870). 
 
 26 Dominion Act (1905), 4 and 5 Edward VII, c. 3 and 
 c. 42. 
 
 27 Perhaps the following chronology may be of value — 
 or at least interesting: 
 
 1758 First Legislative Assembly in Nova Scotia; 
 
 1759-1760 Conquest of Canada; 
 
 1760 Military Rule in Canada; 
 
 1763 Formal Cession of Canada and Royal Proclama- 
 tion; 
 
 1769 Prince Edward Island formed into a separate 
 Province, being divided from Nova Scotia; 
 
 1773 First Parliament in Prince Edward Island; 
 
 1774 The Quebec Act; 
 
 1784 First Legislative Assembly in New Brunswick; 
 
 1791 Constitutional Act; 
 
 1792 First Legislative Assembly in Upper Canada and 
 in Lower Canada; 
 
 1832 Legislative Council formed in New Brunswick; 
 1837-1838 Rebellion in Upper and Lower Canada; 
 1838 Legislative Council formed in Nova Scotia sepa- 
 rate from Executive;
 
 NOTES TO LECTURE I 61 
 
 1840 Union Act; 
 
 1841 First Canadian Parliament for United Canada; 
 1848 Responsible Government fully recognised in New 
 
 Brunswick ; 
 
 1848 And in Nova Scotia, having been partially recog- 
 nised in 1840; 
 
 1850 Prince Edward Island obtains full Responsible 
 Government ; 
 
 1858 British Columbia a Crown Colony with Represen- 
 tative Government; 
 
 1866 British Columbia and Vancouver Island united as 
 one Colony; 
 
 1867 British North America Act; 
 1870 Province of Manitoba formed; 
 
 1870 N. W. Territories organised with a Lieutenant- 
 Governor and small nominated Council; 
 
 1871 British Columbia admitted into Dominion; 
 1873 Prince Edward Island admitted; 
 
 1873 Prince Edward Island abolished Legislative Coun- 
 cil; 
 
 1876 Manitoba abolished Legislative Council; 
 
 1888 N. W. Territories receive a Legislative Assembly; 
 
 1891 New Brunswick abolished Legislative Council; 
 
 1905 Provinces of Alberta and Saskatchewan formed. 
 
 The Constitutional History of Canada (using the word 
 "Canada" in its historical sense and not in the present 
 geographical sense) divides itself into seven periods: 
 (1) Before the Conquest, 1759-1760; (2) from the Conquest 
 to the Royal Proclamation of 1763; (3) from that Procla- 
 mation to the Quebec Act of 1774; (4) from the Quebec 
 Act to the Constitutional Act of 1791; (5) from the Con- 
 stitutional Act to the Union of the Canadas in 1841 ; 
 (6) from the Union of the Canadas to the formation of 
 the Dominion in 1867 under the British North America 
 Act; (7) since the formation of the Dominion.
 
 LECTURE II 
 THE WRITTEN CONSTITUTION 
 
 The word "Constitution" carries with it a 
 different connotation in English and in American 
 usage, and we in Canada follow the English. In 
 our usage, the Constitution is the totality of the 
 principles more or less vaguely and generally 
 stated upon which we think the people should 
 be governed: in American usage, the Constitution 
 is a written document containing so many words 
 and letters which authoritatively and without 
 appeal dictates what shall and what shall not be 
 done. With us anything unconstitutional is 
 wrong no matter how legal it may be; with the 
 American people anything unconstitutional is 
 illegal however right it may be — with the Ameri- 
 cans anything which is unconstitutional is illegal, 
 with us to say that a measure is unconstitutional 
 rather suggests that it is legal but inadvisable.^ 
 
 This difference of meaning necessarily arose 
 from the fact that the so-called Constitution of 
 England was unwritten,^ while the United States
 
 THE WRITTEN CONSTITUTION 53 
 
 began its career by formulating the rules by 
 which it should be governed. 
 
 In the ultimate analysis the difference arises from 
 the fact that the Fathers of this Union of States knew 
 how to write; and that having the power, they had 
 that desire to reduce their views to a written form 
 which characterises the philosopher. 
 
 In the mother country, the philosophic students of 
 the problems of politics also gave written expression 
 from time to time to their views — ^but these students 
 differed from those philosophers in that they had 
 no power to cause their writing to be adopted as a 
 binding document. No more profound studies have 
 ever been made in the theory of government and 
 concerning the balance of function of its various 
 departments than those of Enghshmen — but English- 
 men could give them only as speculations, they had 
 not the power to have their theories adopted by the 
 Nation at large. 
 
 The Fathers of this Nation, when they had drawn 
 from English and other sources what they conceived 
 to be the true principles upon which government 
 should be carried on, went further and formulated 
 their theories in a document framed with much skill: 
 and they had the fortune to have that document 
 declared binding not only upon the Nation as it then 
 existed, but also upon the Nation — speaking gen- 
 erally — as it was to be to the end of time.^
 
 54 CONSTITUTION OF CANADA 
 
 Canada stands between the two — we inherit the 
 constitutional rules of England and at the same 
 time we have laid down for us in writing much by 
 which we are bound. 
 
 Nor is this apparent for the first time in the 
 British North America Act. Leaving aside the 
 periods before 1763 (the French period and the 
 period of the forcible occupation of Canada by 
 the British) we find that in the third period (that 
 from the cession of Canada to the coming in force 
 of the Quebec Act, 1774) the Royal Instructions 
 to the Governors give directions in general terms 
 as to what is to be done. 
 
 In the Instructions to General James Murray, 
 "Our Captain General and Governor in Chief in 
 and over Our Province of Quebec in America and 
 of all Our Territories dependent thereupon — 
 Given at Our Court at St. James the seventh day 
 of December, 1763,"* he is directed to nominate 
 and establish a Council to assist him in the 
 administration of government, to be composed of 
 the Lieutenant-Governors of Montreal and of 
 Three Rivers, the Chief Justice of the Province, 
 the Surveyor-General of Customs (all of whom 
 were appointed by the Home Government) and 
 eight other persons to be chosen by Murray from 
 amongst the "most considerable of the Inhabi- 
 tants of or Persons of Property in our said
 
 THE WRITTEN CONSTITUTION 55 
 
 Province." He was also directed to summon a 
 General Assembly of the Freeholders of the 
 Province, as soon as the more pressing affairs of 
 government would allow him to pay attention to 
 this important object (we have seen that this was 
 not in fact done). In the meantime he was 
 instructed to make such Rules and Regulations, 
 by the advice of the Council, as should appear 
 to be necessary for the peace, order and good 
 government of the Province but not tending to 
 affect the life, limb or liberty of the subject or 
 to the imposing of any duty or tax. Explicit 
 instructions were given as to the form of the 
 "Laws, Statutes and Ordinances to be passed," 
 e.g., each different matter must be provided for 
 by a different law, no clause inserted foreign to 
 the title, no perpetual clause in a temporary law, 
 no alteration, repeal, etc., by general words. 
 
 All laws, statutes and ordinances were to be 
 transmitted to the Home Government: and none 
 affecting the Commerce or Shipping of the King- 
 dom or the Prerogatives of the Crown or the 
 property of British subjects was to be approved 
 by the Governor until His Majesty's pleasure 
 should be known. 
 
 The Assembly was not to be permitted to 
 arrogate privileges to which it was not entitled; 
 its members were not to be protected against suits
 
 56 CONSTITUTION OF CANADA 
 
 at law during their term of office;^ it was not to 
 adjourn except de die in diem, and was not to 
 assume the sole framing of money bills refusing 
 to allow the Council to alter or amend the same.® 
 
 The Governor was "not to admit of any Eccle- 
 siastical jurisdiction of the See of Rome or any 
 other foreign Ecclesiastical Jurisdiction whatso- 
 ever in the Province": but was to establish the 
 Church of England. The extent and conditions 
 of grants of land were specified, purchases of land 
 by individuals from Indians forbidden and many 
 other specific provisions made.^ 
 
 The Quebec Act of 1774 assured to Roman 
 Catholics the free exercise of their religion and 
 relieved Roman Catholic officials from taking the 
 Oath of Supremacy: it continued the English 
 criminal law subject to such alterations and 
 amendments as the Governor by and with the 
 advice and consent of the Legislative Council 
 should cause to be made, but provided that in 
 "all matters of controversy relative to property 
 and civil rights"® resort should be had to the 
 former French laws of Canada until they should 
 be varied or altered by ordinances passed by the 
 Governor by and with the advice of the Legis- 
 lative Council. 
 
 The Act^ further provided that no ordinance 
 should be passed unless a majority of the Council
 
 THE WRITTEN CONSTITUTION 57 
 
 should be present (with an exception in cases of 
 emergency between January 1 and May 1). 
 During the currency of this Act, the government 
 was the same as it had been in fact during the 
 preceding period by the Governor and his Council, 
 but the Council was now to consist of such persons 
 resident in the Province not less in number than 
 seventeen or more than twenty-three as His 
 Majesty should appoint under His Signet or Sign 
 Manual. 
 
 By the Act of 1791, as we have seen, the two 
 Provinces were to have separate legislatures,^" 
 each to consist of two Houses, the Legislative 
 Council and the Legislative Assembly. 
 
 Members of the Legislative Council were to be 
 summoned by the Governor or Lieutenant- 
 Governor under the Great Seal of the Province, 
 not fewer than seven for Upper or than fifteen 
 for Lower Canada and "a sufficient number of 
 discreet and proper persons." 
 
 A curious provision (never acted upon) was 
 contained in this Act, viz., that whenever the King 
 should confer any hereditary title of honour upon 
 any subject, he might annex thereto a hereditary 
 right to a seat in the Legislative Council — this 
 was of course by analogy with the House of 
 Lords." 
 
 The Assembly was to consist of a number of
 
 68 CONSTITUTION OF CANADA 
 
 persons elected by the people, the constituencies 
 and the number of representatives to be fixed by 
 the Governor or Lieutenant-Governor in the first 
 instance, the whole number in Upper Canada to 
 be not less than sixteen and in Lower Canada not 
 less than fifty. The electorate was to consist of 
 British subjects over twenty-one years of age 
 with certain property qualification. But the 
 number, constituencies, etc., could be at any time 
 altered by the Provincial Parliament. 
 
 The Council and Assembly were to be called 
 together at least once in every twelve calendar 
 months and the Assembly was to continue for four 
 years and no longer, but subject to dissolution 
 at any time by the Governor or Lieutenant- 
 Governor; the Legislative Council was perma- 
 nent, the members of that body being appointed 
 for life; the Speaker of the Council was ap- 
 pointed by the Governor or Lieutenant-Governor 
 in analogy with the Lord Chancellor (or Lord 
 Keeper), the Speaker of the House of Lords; the 
 Assembly elected its own Speaker as did the House 
 of Commons at Westminster. Any Act of the 
 Legislature might be reserved for His Majesty's 
 pleasure; the Governor or Lieutenant-Governor 
 might also withhold His Majesty's consent to any 
 Act. The King might also disallow any Bill to 
 which his assent had been given in the Province
 
 THE WRITTEN CONSTITUTION 59 
 
 within two years of the time at which it was 
 received at Westminster. 
 
 Full power was given to repeal or vary any 
 existing law — so that full legislative power was 
 entrusted to the local legislatures, subject to the 
 approval of the Governor^" and to the right of 
 the King (i.e., the Home Administration) to dis- 
 allow any statute within two years of its receipt. 
 
 It will be seen that the main features of this 
 "Constitution" followed the lines of the tradi- 
 tional form of government in England, and indeed 
 the first Lieutenant-Governor of Upper Canada 
 explicitly stated in his address dismissing the 
 legislators at the close of the first Parliament 
 that the Province had been given a Constitution 
 "the very image and transcript of that of Great 
 Britain." So far as legislative power was con- 
 cerned that was true, but the responsibility of 
 the Ministers of the Crown to the popular body 
 was not provided for. 
 
 While there was a clear intention that an 
 Executive Council should be formed in each 
 Province, there was no provision for the manner 
 in which it was to be constituted, what its duties 
 should be, etc., and in the absence of express 
 provision, disputes arose. An Executive Council 
 was in fact appointed at the beginning of Upper 
 (as well as Lower) Canada's separate existence
 
 60 CONSTITUTION OF CANADA 
 
 and the institution was continued without inter- 
 ruption. 
 
 In the two Provinces, the House of Assembly 
 claimed the rights and privileges of the British 
 House of Commons and (speaking generally) had 
 the claim allowed; the Legislative Council corre- 
 sponded to the House of Lords ; there was nothing 
 in the formal Constitution of England to which 
 the Executive Council could correspond but the 
 Privy Council; and nothing in the informal 
 Constitution but the Cabinet. 
 
 At the present time^^ there is little difficulty in 
 determining the relative functions and powers of 
 the Crown, the Houses of Parliament, and the 
 "Ministry"; but in 1792 the task was not so easy. 
 
 At the Common Law and before the Common- 
 wealth, the King did not only reign, he also 
 governed. He was master in theory; and in 
 practice he was as much and as far master as his 
 subjects would permit without successful armed 
 opposition. The Revolution changed both theory 
 and practice; thereafter both in theory and in 
 practice, the King must find a Minister who would 
 take upon himself the responsibility of the King's 
 acts. 
 
 While this was never forgotten. King George 
 III, in his long reign came perilously near the old 
 practice in some instances ; but he never failed
 
 THE WRITTEN CONSTITUTION 61 
 
 to find a Minister to father any of his acts, 
 however unwise. In every case the King was 
 considered blameless, "the King can do no wrong," 
 and the Minister was the culpable party. That 
 is Responsible Government, i.e., the Minister who 
 is responsible for the advice to the King is respon- 
 sible to the representatives of the people in 
 Parliament, for giving such advice. 
 
 In the Mother Country, these propositions were 
 acknowledged in theory and fairly well observed 
 in practice. 
 
 In Canada, there was no resident hereditary 
 head of the State, who could do no wrong. The 
 effective power at the head of affairs was an 
 officer appointed for a short term of years by the 
 King on the advice of the Home Administration, 
 not to reign, but to govern; he had specific 
 instructions as to many of his duties, and was 
 responsible to the authority which appointed him. 
 Unlike the King, he could do wrong; unlike the 
 Home Ministry, he was responsible not to the 
 people or their representatives, but to an author- 
 ity across the seas. It naturally followed that 
 those whom he appointed to carry on the business 
 of State were responsible to him alone and not to 
 Parliament; their advice he need not seek; if 
 sought and given, it might be neglected, and he
 
 62 CONSTITUTION OF CANADA 
 
 could not hide himself behind any officer or the 
 advice of any officer. 
 
 The Constitution of Canada, then, was far from 
 being the image and transcript of that of Great 
 Britain. 
 
 In the early days of the Colony, the inhabitants 
 were too much engaged in material matters, in 
 chopping down the forests, in clearing the land 
 and in making a home in the New World, to pay 
 much attention to the theory or indeed to the 
 practice of government. The Governor had 
 Crown Lands to draw upon and other revenues, 
 and did much as he pleased without interference 
 or complaint; Parliament had certain taxes im- 
 posed by its own authority and certain customs 
 duties, and this money was expended under the 
 order of Parliament. The money at the disposal 
 of the Governor tended rather to decrease than 
 to increase; that of the Parliament had the 
 reverse tendency; and it was inevitable that at 
 some time the Governor would desire to encroach 
 on the money of Parliament. And if money is not 
 the root of all evil, it is the root of most revolu- 
 tions and constitutional changes. 
 
 After a long agitation largely upon Responsible 
 Government, there was a short-lived Rebellion in 
 each Province, 1837-1838. Lord Durham made
 
 THE WRITTEN CONSTITUTION 63 
 
 an investigation and report which resulted in the 
 Union Act of 1840." 
 
 This provided for the union of the two Prov- 
 inces, for one Legislative Council and one 
 Assembly with power "within the Province of 
 Canada ... to make laws for the peace, welfare 
 and good government of the Province of Canada." 
 Legislative Councillors not fewer in number than 
 twenty were to be appointed for life by the 
 Governor under the Great Seal of the Province. 
 (In 1856, provision was made by the Canadian 
 Statute, 19-20 Vic, c. 140, for Legislative Coun- 
 cillors being elected, so that thereafter there were 
 two elected Chambers as in the United States: 
 but this produced no real change in the working 
 Constitution except somewhat to increase the 
 importance of the Legislative Council.) The 
 Governor also was to appoint the Speaker of the 
 Council. In the Assembly an equal number of 
 representatives was to come from each part, 
 formerly Upper Canada arid Lower Canada. 
 Constituencies were laid out . ith power reserved 
 to the Canadian Parliament to change constit- 
 uencies, alter the apportionment, etc. (the appor- 
 tionment not to be altered without a two-thirds 
 vote in each House). The Governor had still the 
 right to withhold the Royal assent and to reserve 
 any Bill for Her Majesty's pleasure and the
 
 64 CONSTITUTION OF CANADA 
 
 Queen might disallow any Bill to which the 
 Governor had given his consent within two years 
 of its receipt at Westminster. 
 
 The most important change that was made 
 was to surrender the hereditary revenues of the 
 Crown for a fixed sum of £45,000 to pay the 
 Governor's and Judges' salaries and another of 
 £30,000 to pay certain other officials. The 
 result was necessarily to take from the Governor 
 the means of defraying the expenses of govern- 
 ment, and thereby to force him to apply to Par- 
 liament for money — the purse-strings were held 
 by the Assembly and Responsible Government was 
 the necessary consequence. 
 
 But notwithstanding the broad terms of the 
 Act and the benevolent intentions of the Imperial 
 Parliament, full Home Rule could not be expected 
 at that time — accordingly we find it provided^^ 
 "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 Her Majesty shall 
 from time to time see fit to make or issue." 
 
 But though this provision looks like a for- 
 midable diminution of the responsibility of the 
 Ministry to the people of Canada alone, it was 
 not in fact of any consequence, the results were
 
 THE WRITTEN CONSTITUTION 65 
 
 practically negligible — no British administration 
 ever set itself against the will of Canada as 
 expressed in its Legislature, and for all practical 
 purposes the clause might have been omitted/^ 
 
 It took some time for the Canadas to settle 
 down under the Union Act: but on the whole the 
 Union worked well. 
 
 The present written "Constitution" is to be 
 found in the British North America Act of 1867, 
 with the amendments thereto. 
 
 The Preamble of the Statute expresses the 
 desire of the Provinces of Canada, Nova Scotia 
 and New Brunswick to be united into one 
 Dominion under the Crown of Great Britain and 
 Ireland "with a constitution similar in principle 
 to that of the United Kingdom," and adds that 
 it is expedient "not only that the Constitution 
 of the Legislative Authority in the Dominion be 
 provided for, but also the nature of the Executive 
 Government therein be declared." 
 
 A "Dominion of Canada" was authorised to be 
 composed of four Provinces, Ontario, Quebec, 
 Nova Scotia and New Brunswick, the boundaries 
 of which Provinces were to be the former bounda- 
 ries of Upper Canada and Lower Canada and the 
 existing boundaries of Nova Scotia and New 
 Brunswick, respectively, with provisions for the 
 admission of Newfoundland, Prince Edward
 
 66 CONSTITUTION OF CANADA 
 
 Island and British Columbia on the Address of 
 the Parliament of the Dominion and of the Par- 
 liament of the Colony to be admitted. There was 
 also a provision for the admission of Rupert's 
 Land and the Northwestern Territory or either 
 of them on the Address of the Parliament of the 
 Dominion. 
 
 (No power was given to the Dominion to 
 establish new Provinces, but this defect was 
 corrected by "The British North America Act, 
 1871."^^ The Act empowered the Parliament of 
 Canada to establish new Provinces in any part 
 of the territory of Canada not already in a 
 Province and make provision for the constitution 
 and administration of any such Province.^* The 
 same Act also provides for the Parliament of 
 Canada with the consent of the Provincial Legis- 
 lature increasing, diminishing or altering the 
 limits of any Province.) 
 
 Passing over the division between Dominion 
 and Provinces of the public property and the 
 adjustment of national debts, we note that the 
 Dominion as a whole was to have one Parliament 
 consisting of the Sovereign, an Upper House 
 called the Senate, and the House of Commons : 
 each of the Provinces was to have a Legislature, 
 in Ontario of one House (the Legislative Assem- 
 bly), in Quebec of two Houses (the Legislative
 
 THE WRITTEN CONSTITUTION 67 
 
 Council and the Legislative Assembly) and in 
 Nova Scotia and New Brunswick as they were on 
 the passing of the Act (i.e., with two Houses, the 
 Legislative Council and the Legislative Assembly). 
 
 The Provincial Legislatures were given power^® 
 to amend the Constitution of the Province except 
 as regards the office of Lieutenant-Governor: and 
 New Brunswick has got rid of her Legislative 
 Council.'" 
 
 Nova Scotia and Quebec retain their Legislative 
 Council and still have the bicameral system.'^ 
 
 Manitoba was organised in 1870^^ with two 
 Chambers but she early got rid of the Legislative 
 Council." 
 
 Prince Edward Island began in 1773 with an 
 elective Assembly and an appointed Council: in 
 1862, the Council was made elective also, and in 
 1893, the Council and the Assembly were com- 
 bined so as to form but one House — for each 
 of the fifteen constituencies there were to be 
 and are elected one Councillor and one Assembly- 
 man by voters of different qualifications; -but all 
 Councillors and Assemblymen sit and vote to- 
 gether. (This will remind the student of Parlia- 
 mentary History of the ancient Scottish Parlia- 
 ment.) 
 
 Prince Edward Island came into Confederation 
 with only one House.
 
 68 CONSTITUTION OF CANADA 
 
 British Columbia had one House called the 
 Legislative Council. She, in anticipation of being 
 admitted into the Dominion, changed the name 
 of her Chamber to Legislative Assembly.^* 
 
 When the Provinces of Alberta and Saskatch- 
 ewan were created by the Dominion^^ in 1905, it 
 was provided that the Legislature should have 
 only one Chamber called the Legislative Assembly. 
 
 The Yukon Territory has a "Territorial 
 Council" substantially the same as the Legislative 
 Assembly of the organised Provinces — the North 
 West Territories, comprising all British territo- 
 ries in this part of North America and all islands 
 adjacent thereto not included in any Province or 
 the Yukon Territory or Newfoundland and its 
 dependencies, has not as yet any Legislature. 
 
 While only two of the nine Provinces have now 
 two Houses, the Dominion retains the old system, 
 having still her Senate and House of Commons. 
 
 The Senate had originally seventy-two mem- 
 bers, twenty-four from Ontario, twenty-four from 
 Quebec, twelve from Nova Scotia and twelve from 
 New Brunswick. The number from Ontario and 
 Quebec remains the same but after Prince Edward 
 Island was admitted into the Dominion, Nova 
 Scotia and New Brunswick each lost two Senators 
 and the four Senators were allotted to the new 
 Province: Manitoba has four, British Columbia
 
 THE WRITTEN CONSTITUTION 69 
 
 three, and Alberta and Saskatchewan each four, 
 making eighty-seven in all."® 
 
 The Senator is appointed for life with power 
 to resign, and losing his seat if he fails for two 
 consecutive sessions to give his attendance in the 
 Senate, becomes bankrupt, etc. Modest quali- 
 fications are prescribed."^ 
 
 Power is reserved to the Sovereign on the 
 recommendation of the Governor-General to 
 direct that three or six members be added to the 
 Senate from the three divisions of Canada 
 equally;"^ but if this be done there are to be no 
 more appointments until the Senate has its 
 normal number of members. ^^ 
 
 The Speaker is appointed by the Government 
 of the day: he has a vote and in case of equality 
 of votes, the question passes in the negative. 
 
 The House of Commons is elected by the 
 people, the franchise being fixed by the Canadian 
 Parliament, and the representation is proportion- 
 ate to the population. 
 
 The original number of members from each 
 Province was fixed by the British North America 
 Act ; but thereafter the method prescribed was 
 as follows : A census is taken decennially ; Quebec 
 is given her fixed quota of sixty-five members and 
 the other Provinces are assigned a number of 
 members which will bear the same ratio to sixty-
 
 70 CONSTITUTION OF CANADA 
 
 five as its population bears to the population of 
 Quebec.^" 
 
 In the Provinces, members of the Legislative 
 Council (where such a body exists) are nominated 
 by the Government of the Province, the Dominion 
 having no authority in the premises; their tenure 
 of office is for life. The Speaker of this House 
 is appointed by the Local Government: and he 
 has the same powers as to voting, etc., as the 
 Speaker of the Senate. 
 
 The Legislative Assemblies are elected by the 
 people on a franchise and with constituencies 
 fixed by the Local Legislature, and the number of 
 representatives is also so fixed. 
 
 Every House of Commons has a life of five 
 years only^^ and is subject to be sooner dissolved 
 by the Governor-General ; each Legislative Assem- 
 bly has a life of four years only subject to 
 being sooner dissolved by the Lieutenant- 
 Governor; in no case is a period of twelve months 
 to intervene between the last sitting of Parlia- 
 ment or Legislature and its first sitting in the 
 next session. 
 
 We now come to functionaries whose office on 
 paper is exceedingly important — the Executive 
 Government in Canada being in the Sovereign, he 
 appoints an officer known as the Governor-General 
 as the chief executive officer for carrying on the
 
 THE WRITTEN CONSTITUTION 71 
 
 government in Canada on behalf and in the name 
 of the Sovereign: he has a Privy Council (but it 
 is His Majesty's Privy Council for Canada) to 
 aid and advise the government. 
 
 In the Provinces there is an officer called the 
 Lieutenant-Governor appointed by the Governor- 
 General in Council at Ottawa during pleasure, 
 but he cannot be removed within five years of his 
 appointment except for cause assigned ; his salary 
 is paid by the Dominion and he has an Executive 
 Council.^' 
 
 Money bills must originate in the House of 
 Commons and no appropriation or tax can be 
 voted for any purpose that has not first been 
 recommended to the House by message of the 
 Governor-General in that session — in the Legis- 
 lative Assemblies it is of course the Lieutenant- 
 Governor who must recommend. 
 
 The Legislative power is divided between 
 Dominion and Provinces, all classes of subjects 
 not specifically assigned to the Provinces falling 
 to the Dominion. 
 
 The Provincial Legislatures deal with local 
 affairs and "generally all matters of a merely 
 local or private nature within the Province" — 
 Section 92 enumerates the subjects of Provincial 
 legislation while the preceding section enumerates 
 the subjects of Dominion legislation.^^
 
 72 CONSTITUTION OF CANADA 
 
 Where a bill has been passed by the Houses of 
 Parliament and is presented to the Governor- 
 General, he may (1) assent to it in His Majesty's 
 name; (2) withhold His Majesty's assent, or 
 (3) reserve the bill for the King's pleasure — if 
 he gives assent, the bill may be disallowed by the 
 King in Council, i.e., the Home Administration, 
 within two years of its receipt — if the bill is re- 
 served it has no force unless within two years the 
 Governor-General sends a message to Parliament 
 that it has received His Majesty's assent. 
 
 The Lieutenant-Governor has the same power 
 in local legislation but he reserves, etc., for the 
 Governor-General in Council and the disallowance 
 of any bill assented to must be made by the 
 Governor-General in Council within one year. 
 
 No Province may legislate prejudicially affect- 
 ing any right or privilege with respect to denomi- 
 national schools which any class of persons had 
 by law at the time of the Union — the rights of 
 minorities in respect of separate schools are 
 strictly guarded.^* 
 
 All judges are appointed by the Dominion from 
 the Bar of the respective Provinces (Courts of 
 Probate in Nova Scotia and New Brunswick, and 
 Surrogate Courts of Probate in Ontario are 
 excepted). ^^
 
 THE WRITTEN CONSTITUTION 73 
 
 The Dominion pays annually to the Provinces 
 a fixed sum for the support of the local Govern- 
 ments: of course the local Governments have also 
 their own sources of revenue.
 
 NOTES TO LECTURE II 
 
 1 See my judgment in Bell v. Burlington (1915), 34 
 O. L. R., 619 at p. 622 (Appellate Division of the Supreme 
 Court of Ontario). 
 
 For example, in theory the Sovereign has the right to 
 refuse to assent to a biU which has passed both Houses of 
 Parliament. No Sovereign since Queen Anne has ventured 
 to do this — and the theoretical right is dead as Queen Anne 
 herself. No Sovereign would now dream of setting up his 
 wiU against that of his Parliament — to do so would be 
 unconstitutional. But there are many parts of the Consti- 
 tution by no means so well settled. If ten years ago, a 
 statesman or lawyer had been asked whether the House 
 of Lords could reject a budget passed by the Commons, 
 he would have answered, "The House of Lords no doubt 
 can, but it wUl not." And yet we know the House of 
 Lords did that very thing — with the result we know. 
 
 2 The recent legislation whereby the House of Commons 
 was enabled to make law without the assent of the House 
 of Lords has introduced a modification of this statement — 
 the "Constitution" of the Mother Country is now in part 
 written. 
 
 3 The quotation is from an Address delivered by myself 
 before the Iowa State Bar Association at Cedar Rapids, 
 Iowa, June 28, 1912. Prof. Hugo Miinsterberg says, "the 
 American people is in its thought conservative to the last 
 degree." "The Americans," London edition, Williams & 
 Norgate, 1916, at p. 217 ad init. 
 
 4 The fuU text of these Instructions wiU be found in 
 Shortt & Doughty, pp. 132 sqq. 
 
 5 The privilege of exemption from arrest on civU process
 
 NOTES TO LECTURE II 75 
 
 enjoyed by the members of the House of Commons at West- 
 minster was very highly prized. It was claimed and 
 eflfectively asserted by the first House of Parliament of 
 Upper Canada during its second session in 1793. We find 
 on Monday, June 17, this resolution carried: "That the 
 Speaker do inform W. B. Sheehan, Esquire, SheriflF of this 
 district, that the House entertain a strong sense of the 
 impropriety of his conduct towards a member of this House 
 in having served a Writ of Capias upon the said member 
 contrary to his privilege, and that the House has only 
 dispensed with the necessity of bringing him to their bar 
 to be further dealt with from a conviction that want of 
 reflection and not contempt made him guilty of an infringe- 
 ment upon the privileges of the House." 
 
 That the members of the Upper Canada House had the 
 same privilege from arrest as a member of the Imperial 
 House of Commons is certain — and that, not only during 
 the sittings of the House, but for forty days before and 
 forty days after is clear from Reg. v. Gamble and Boulton 
 (1832), 9 U. C. R. 546, and several other cases down to 
 Cox V. Prior (1899), 18 P. R. 492. 
 
 Accordingly the sheriff had reason to consider himself 
 lucky in escaping the fate of others who had been guilty 
 of somewhat similar acts. 
 
 Upon the first day of the first Parliament of James I in 
 1603, a complaint was made that Sir Thomas Shirley, who 
 had been elected a member of the House of Commons, was 
 arrested four days before the sitting of the Parliament and 
 imprisoned in the Fleet. A writ of Habeas Corpus was 
 issued and he was discharged. Precedents were looked into 
 and the plaintiff at whose suit and the sergeant by whom 
 the arrest was made were sent to the Tower. The Warden 
 of the Fleet, who had persisted in refusing to obey the 
 writ of Habeas Corpus and deliver up his prisoner, was 
 ordered to be committed "to the place called the Dungeon 
 or Little-Ease in the Tower." Afterwards "delivering his
 
 76 CONSTITUTION OF CANADA 
 
 prisoner" and "upon his knees confessing his error and 
 presumption and professing he was unfeignedly sorry, the 
 Speaker pronounced his pardon and discharge, paying 
 ordinary fees to the clerk and the sergeant." In February, 
 1606, an attorney who had procured the arrest of Mr. 
 James, a member of the House of Commons, and the officer 
 who had arrested him, were "for their contempt committed 
 to the custody of the sergeant for a month, whicli judgment 
 was pronounced against them kneeling at the bar, by Mr. 
 Speaker." 
 
 The episode in Upper Canada, however, was after the 
 Constitutional Act of 1791, and that was after Bunker HiU; 
 and the view taken in England of the rights of Colonists 
 had been seriously and beneficially modified. See a series 
 of articles, "Some Early Legislation and Legislation in 
 Upper Canada" in the Canadian Law Times for 1913: 33 
 Can. L. T., pp. 22, 96, 180. 
 
 6 In short, the House of Assembly was not to be a 
 duplicate of the Imperial House of Commons. We have 
 seen that the Canadian Houses of Assembly did later assert 
 their status to be that of the House of Commons. 
 
 7 The Instructions to Sir Guy Carleton (1768) wUl be 
 found in Shortt & Doughty, pp. 210 sqq. The tenor is much 
 the same. 
 
 s Particular attention should be paid to this expression, 
 "property and civil rights," now appearing for the first 
 time but continued in the legislation till the present time. 
 These words have been the cause of endless discussion and 
 litigation. 
 
 9 This Act (1774), 14 George III, c. 83, is printed in 
 full in Shortt & Doughty, pp. 401 sqq. 
 
 10 This Act (1791), 31 George III, c. 31, is printed in 
 full in Shortt & Doughty, pp. 649 sqq. It is well known to 
 have caused the historical and fateful rupture between 
 Burke and Fox. I add here a synopsis of its provisions:
 
 NOTES TO LECTURE II 77 
 
 Sec. 1 repeals much of the Quebec Act (1774), 14 George 
 III, cap. 83. 
 
 Sec. 2 provides for a Legislative Council and an 
 Assembly in each of the Provinces of Upper Canada and 
 Lower Canada, with power to pass legislation valid when 
 assented to by the Sovereign or the Governor or Lieutenant- 
 Governor appointed by the Sovereign. 
 
 (Sections 3 to 12, inclusive, contain the provisions as to 
 the Legislative Council.) 
 
 Sec. 3 gives power to the Sovereign to direct by Sign 
 Manual the Governor, etc., to summon to the Legislative 
 Council such persons not less than seven or more than 
 fifteen as should be selected by the Sovereign. 
 
 Sec. 4 provides that no one shall be summoned to the 
 Legislative Council under twenty-one years of age or not 
 a British subject by birth, naturalisation or conquest. 
 
 Sec. 5 makes the position of Legislative Councillor for 
 life, subject to vacation in cases thereafter mentioned. 
 
 Sec. 6 empowers the Sovereign to annex to any heredi- 
 tary title of honour in the Province, the hereditary right to 
 sit in the Legislative Council. (This was, of course, by 
 analogy to the House of Lords in the mother country; the 
 power has never been exercised.) 
 
 Sec. 7 provides for forfeiture of this hereditary right. 
 
 Sec. 8 — For loss of seat in the Legislative Council in cer- 
 tain specified cases. 
 
 Sec. 9 protects hereditary rights in certain cases of loss 
 of seat. 
 
 Sec. 10 declares all seats and all heredity forfeited for 
 treason. 
 
 Sec. 11 provides for determining contested rights to 
 seats. 
 
 Sec. 12 — The Governor, etc., is to appoint the Speaker. 
 
 (Sections 13 to 25, inclusive, contain the provisions as to 
 the Legislative Assembly.)
 
 78 CONSTITUTION OF CANADA 
 
 Sec. 13 empowers the Sovereign to direct the Governor, 
 etc., to call together an Assembly. 
 
 Sec. 14 — And to divide the Province into Ridings, ap- 
 point Returning Officers, etc., for an Election. 
 
 Sec. 15 — The R.O.'s to hold office for not more than two 
 years from the commencement of the Act. 
 
 Sec. 16 — No one to be compelled to be R.O. more than 
 once. 
 
 Sec. 17 — The whole number of representatives not to be 
 less than sixteen in Upper Canada or less than fifty in 
 Lower Canada. 
 
 Sees. 18 and 19 prescribe the Writs for Election and the 
 Return. 
 
 Sec. 20 — The electorate to consist of those owning land 
 worth not less than 40s. (Sterling) per annum in country 
 districts; in towns £5 (Sterling), or paying rent not less 
 than £10 (Sterling). 
 
 Sec. 21 prohibits Ministers, Priests, Ecclesiastics and 
 Teachers of any Church, or form of religious faith or wor- 
 ship from sitting in the Assembly. (This provision after- 
 wards proved troublesome to the Methodists — some of their 
 local preachers were compelled to vacate the seats in the 
 Assembly to which they had been elected.) 
 
 Sec. 22 — None under twenty-one or not a British subject 
 to be allowed to vote or be elected. 
 
 Sec. 23 — And no one attainted of treason or felony. 
 
 Sec. 24 — An oath for voters is provided. 
 
 Sec. 25 — Eight days' notice of the time of election to be 
 given. 
 
 Sec. 26 — And due notice of the sitting of Parliament. 
 
 Sec. 27 — Parliament to be called together at least once 
 every twelve months. 
 
 Sec. 28 — AU questions to be decided by a majority of 
 votes, the Speaker of Council or Assembly to have a casting 
 voice. 
 
 Sec. 29 — Oath for members of Council and Assembly.
 
 NOTES TO LECTURE II 79 
 
 Sec. 30 — The Governor, etc., authorised to withhold 
 assent to legislation or to reserve for His Majesty's 
 consideration. 
 
 Sec. 31 — The Governor, etc., to transmit to the Secretary 
 of State all Bills assented to; these may be disallowed by 
 His Majesty in Council any time within two years of their 
 receipt. 
 
 Sec. 32 — Bills reserved for His Majesty's pleasure not to 
 have any eflfect until approval communicated to Council 
 and Assembly. 
 
 Sec. 33 — Laws in force at the passing of the Act to 
 continue in force until repealed. 
 
 Sec. 34 — The Governor, etc., "with such Executive Coun- 
 cil as shall be appointed by His Majesty for the affairs of 
 such Province" to be a Court of Appeal. (This, curiously 
 enough, is the only mention of an Executive Council in the 
 Act except in Sees. 38 and 50. Troubles over the Executive 
 Council, its functions, power and responsibility soon devel- 
 oped and continued till after the Rebellion of 1837.) 
 
 Sec. 35 — Certain previous regulations, etc., in respect of 
 the Roman Catholic clergy to continue in force. 
 
 Sees. 36 and 37 — For the support, etc., "of a Protestant 
 Clergy," land to be allotted "equal in value to the seventh 
 part" of lands "granted by and under the authority of His 
 Majesty." 
 
 (The celebrated Clergy Reserves of one-eighth of the 
 ungranted lands of the Crown, not one-seventh, as ordina- 
 rily supposed, since the Reserve was to be one-seventh of 
 the land granted, i.e., one-eighth of the whole. What was 
 "a Protestant Clergy" was soon in dispute. The Church of 
 England claimed a monopoly of the title, but on the advice 
 of the Law Officers of the Home Government, the Church 
 of Scotland had its claim allowed as being an Established 
 Church, and as Protestant as the Church of England. 
 Other and Nonconformist Presbyterians, Methodists, and 
 some other religious bodies which believed themselves to be
 
 80 CONSTITUTION OF CANADA 
 
 Protestant Churches and to have a Protestant Clergy then 
 advanced claims, which were more or less assented to. At 
 length, after being for years a constant source of irritation 
 and contention, the "Clergy Reserves" remaining were 
 applied to education purposes.) 
 
 Sec. 38 — The Governor, with the advice of the Executive 
 Council, might erect Parsonages and endow them for the 
 Church of England. 
 
 Sec. 39 — And appoint incumbents. 
 
 Sec. 40 — Subject to the rights of institution, etc., of the 
 Bishop of Nova Scotia. 
 
 Sec. 41 — The provisions of Sees. 36 to 40, inclusive, to 
 be subject to repeal or variation by the Provincial Parlia- 
 ment. 
 
 Sec. 42 — Certain Acts to be laid before the Imperial 
 Parliament before receiving the Royal Assent. 
 
 Sec. 43 — Land in Upper Canada to be granted in free 
 and common soccage. 
 
 Sec. 44 — Existing grantees there may surrender their 
 grants and receive new ones in free and common soccage. 
 
 Sec. 45 — These new grants not to bar any existing right. 
 
 Sec. 46 — The Imperial Parliament not to levy any tax, 
 etc., except for the regulation of navigation, etc. 
 
 Sec. 47 — All taxes levied for navigation, etc., to be 
 applied to the use of the Province. 
 
 Sec. 48 — Act to begin not later than December 31, 1791. 
 
 Sec. 49 — Provincial Elections not later than December 
 31, 1792. 
 
 Sec. 50 — In the interim, Governor and Executive Council 
 may make temporary laws, regulations, etc. 
 
 11 Very few hereditary titles of honour have been con- 
 ferred upon Canadians, some five Peerages, Lords Strath- 
 cona, Mount Stephen, Shaughnessy, Beaverbrook and now 
 Graham, and a dozen or so of baronetcies — none of the 
 peerages and but a few of the baronetcies were created till 
 after the Act of 1791 had been repealed and in no case was
 
 NOTES TO LECTURE II 81 
 
 there attached thereto the right to sit in the Legislative 
 Council. The usual Imperial honour granted to Canadians 
 is a Knighthood, whether as Knight Bachelor or Knight of 
 one of the Orders; this is not hereditary but is confined 
 to the original donee. Where a baronetcy is given it is 
 generally (although not universally) given to one without 
 issue and without probability of issue. 
 
 12 There was a Governor-in-Chief of all Canada and a 
 Lieutenant-Governor for each Province. The Lieutenant- 
 Governor had all the powers of the Governor-in-Chief 
 (speaking generally) during the absence from the 
 Province of the Governor-in-Chief; during his presence, 
 the Lieutenant-Governor had no official functions. 
 
 13 I mean in times of peace; there is a certain dislocation 
 of the normal constitution at this time of war. 
 
 14 (1840), 3 and 4 Vic, c. 35 (Imp.). The continued 
 agitation for Responsible Government shows that the Cana- 
 dian like the rest of the British world and the American, 
 will consent to the rule of an oligarchy only so long as the 
 few owe their power to the vote of the many. 
 
 15 By section 59. 
 
 16 Such provisions are a survival of what were once 
 living realities, now atrophied for want of use: they do 
 no harm and are therefore tolerated just as the official 
 title of His Majesty which makes him King by the Grace 
 of God when everyone knows he is King by grace of an Act 
 of Parliament. He is quite too sensible to make a claim of 
 Divine Right — he may even be (like his grandmother. Queen 
 Victoria) a Jacobite but he will not abdicate for that 
 reason. 
 
 17 (1871), 34 Vic, c. 28 (Imp.), coming into force June 
 29, 1871. 
 
 IS It was under the powers given by this Act that the 
 Provinces of Manitoba, Saskatchewan and Alberta were 
 formed. 
 
 19 By section 92 (1).
 
 82 CONSTITUTION OF CANADA 
 
 20 By the New Brunswick Statute of 1891, 54 Vic, c. 9 
 (N. B.), passed April 16, 1891, and to become effective 
 after the closing of the first session of the Legislature 
 holden in 1894 or at the dissolution of the existing LrCgis- 
 lature — in fact, the Legislature ceased to exist and a new 
 Legislature was elected so that after April, 1892, there 
 was no legislation "by the Lieutenant-Governor, Legislative 
 Council and Assembly," but the new Legislature (in 1893) 
 had only one House and the legislation thereafter was "by 
 the Lieutenant-Governor and Legislative Assembly." 
 
 21 There have been several attempts to abolish the 
 Second Chamber in Nova Scotia and (it is said) more than 
 once gentlemen appointed to the Council under a pledge 
 to vote for its abolition have developed conscientious 
 scruples against keeping the promise, as it is unconstitu- 
 tional to pledge oneself in advance to vote in any particular 
 way. Members of other Second Chambers have been known 
 to discover constitutional obstacles against their voting in 
 the way they did not wish to vote. 
 
 22 By the Dominion Act (1870), 33 Vic, c 3 (Dom.). 
 
 23 The Act of 1870 gave Manitoba a Legislative Council 
 of seven members but it disappears after the session of 
 1876 (the second session of the Second Parliament) — it was 
 abolished by the Manitoba Act, 39 Vic, c 28. 
 
 24 See the Laws of British Columbia for 1871 (34 Vic), 
 No. 147. 
 
 25 (1905), 4 and 5 Edward VII, cc 3 and 42. 
 
 26 Pursuant to an Address from the Parliament of 
 Canada, the British North America Act, 1867, was 
 amended in 1915 by the Imperial Statute, 5 and 6 George 
 V, c 45, fixing the number of Senators at 96 — from Ontario, 
 24; from Quebec, 24; from Nova Scotia, 10; from New 
 Brunswick, 10; from Prince Edward Island, 4; from 
 Manitoba, 6; from British Columbia, 6; from Saskatchewan, 
 6; and from Alberta, 6 — 96 in all. This provision, however.
 
 NOTES TO LECTURE II 83 
 
 does not come into force until the termination of the exist- 
 ing Canadian Parliament. 
 
 2" The qualifications are prescribed by section 23: 
 "23. The qualifications of a Senator shall be as follows: 
 "(1.) He shall be of the full age of thirty years: 
 "(2.) He shall be either a natural-born subject of the 
 Queen, or a subject of the Queen naturalised by an Act 
 of the Parliament of Great Britain, or of the Parliament 
 of the United Kingdom of Great Britain and Ireland, or of 
 the Legislature of one of the Provinces of Upper Canada, 
 Lower Canada, Canada, Nova Scotia, or New Brunswick, 
 before the Union, or of the Parliament of Canada after the 
 Union. 
 
 "(3.) He shall be legally or equitably seised as of free- 
 hold for his own use and benefit of lands or tenements held 
 in free and common socage, or seised or possessed for his 
 own use and benefit of lands or tenements held in franc- 
 aleu or in roture, within the Province for which he is ap- 
 pointed, of the value of four thousand dollars, over and 
 above all rents, dues, debts, charges, mortgages, and incum- 
 brances due or payable out of or charged on or aflFecting 
 the same: 
 
 "(4.) His real and personal property shall be together 
 worth four thousand dollars over and above his debts and 
 liabilities : 
 
 "(5.) He shall be resident in the Province for which he 
 is appointed: 
 
 "(6.) In the case of Quebec he shall have his real prop- 
 erty qualification in the Electoral Division for which he is 
 appointed, or shall be resident in that Division." 
 
 28 After the present Canadian Parliament these numbers 
 will be four and eight respectively, representing equally 
 (1) Ontario, (2) Quebec, (3) the Maritime Provinces and 
 (4) the Western Provinces. 
 
 29 Originally the number of Senators was restricted to 
 78. Changes have been made from time to time and after
 
 84 CONSTITUTION OF CANADA 
 
 the present Canadian Parliament the maximum will be 104, 
 26 from each division (5 and 6 George V, c. 45, s. I, 1, v. 
 Imp.). 
 
 30 After the present Canadian Parliament the number 
 of members of Parliament from any Province must not be 
 less than the number of Senators to which it is entitled 
 (5 and 6 George V, c. 45, s. 2 Imp.). This change was 
 made by reason of the complaint of Prince Edward Island 
 that her representation in the Commons was reduced to 
 three members on the readjustment of 1914 following the 
 preceding census, although her Senators remained four in 
 number. 
 
 31 At the request of the two Houses of the Canadian 
 Parliament, the Imperial Parliament has extended the life 
 of the present Canadian Parliament for an extra year — this 
 was to avoid the necessity of a war-time election. 
 
 32 A curious "Constitutional" point has been mooted, 
 viz., is the King part of the Local Legislatures? 
 
 The British North America Act, 1867, makes the Par- 
 liament of Canada consist of the Queen, the Senate and the 
 House of Commons (sec. 17) ; but when it comes to define 
 the Legislature of the Province we find it "consisting of 
 the Lieutenant-Governor and of one House" (or two 
 Houses in the case of Quebec). It has been questioned 
 whether the King is part of the Provincial Legislature — 
 indeed, New Brunswick and Prince Edward Island have 
 their Statutes read "Be it enacted by the Lieutenant- 
 Governor and Legislative Assembly as follows," etc. 
 Ontario, Manitoba, British Columbia, Alberta and Sas- 
 katchewan use the terminology, "His Majesty by and with 
 the advice and consent of the Legislative Assembly of the 
 Province of Ontario (or as the case may be) enacts as 
 follows," etc. Quebec and Nova Scotia use the same ter- 
 minology but add the Legislative Council. 
 
 The point is of no practical importance — the Lieutenant- 
 Governor represents the King in his Province.
 
 NOTES TO LECTURE II 85 
 
 33 Sections 91 and 92 read as follows: 
 
 91. It shaU be lawful for the Queen, by and with the 
 advice and consent of the Senate and House of Commons, 
 to make laws for the peace, order, and good government 
 of Canada, in relation to aU matters not coming within the 
 classes of subjects by this Act assigned exclusively to the 
 Legislatures of the Provinces; and for greater certainty, 
 but not so as to restrict the generality of the foregoing 
 terms of this section, it is hereby declared that (notwith- 
 standing anything in this Act) the exclusive legislative 
 authority of the Parliament of Canada extends to all 
 matters coming within the classes of subjects next here- 
 inafter enumerated; that is to say: 
 
 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 
 allowances of civil and other oflBcers of the Government of 
 Canada. 
 
 9. Beacons, Buoys, Lighthouses, and Sable Island. 
 
 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.
 
 86 CONSTITUTION OF CANADA 
 
 18. Bills of Exchange and Promissory Notes. 
 
 19. Interest. 
 
 20. Legal tender. 
 
 21. Bankruptcy and Insolvency, 
 
 22. Patents of invention and discovery. 
 
 23. Copyrights. 
 
 24. Indians, and lands reserved for the Indians. 
 
 25. Naturalisation and Aliens. 
 
 26. Marriage and Divorce. 
 
 27. The Criminal Law, except the Constitution of 
 Courts of Criminal Jurisdiction, but including the Pro- 
 cedure in Criminal Matters. 
 
 28. The Establishment, Maintenance, and Management 
 of 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 Provinces. 
 And any matter coming within any of the classes of sub- 
 jects enumerated in this section shall not be deemed to 
 come within the class of matters of a local or private nature 
 comprised in the enumeration of the classes of subjects by 
 this Act assigned exclusively to the Legislatures of the 
 Provinces. 
 
 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 
 raising of a Revenue for Provincial purposes. 
 
 3. The borrowing of money on the sole credit of the 
 Province. 
 
 4. The establishment and tenure of Provincial offices 
 and the appointment and payment of Provincial officers.
 
 NOTES TO LECTURE II 87 
 
 5. The Management and Sale of the Public Lands 
 belonging to the Province and of the timber and wood 
 thereon. 
 
 6. The Establishment, Maintenance, and Management 
 of Public and Reformatory Prisons in and for the Province. 
 
 7. The Establishment, Maintenance, and Management 
 of Hospitals, Asylums, Charities, and Eleemosynary 
 Institutions in and for the Province, other than Marine 
 Hospitals. 
 
 8. Municipal Institutions in the Province. 
 
 9. Shop, Saloon, Tavern, Auctioneer, and other 
 Licences in order to the raising of a Revenue for Provin- 
 cial, local, or municipal purposes. 
 
 10. Local Works and Undertakings other than such as 
 are of the following classes, — 
 
 a. Lines of Steam or other Ships, Railways, Canals, 
 Telegraphs, and other works and undertakings connecting 
 the Province with any other or others of the Provinces, or 
 extending beyond the limits of the Province: 
 
 b. Lines of Steam Ships between the Province and any 
 British or Foreign Country: 
 
 c. Such works as, although whoUy situate within the 
 Province, are before or after their execution declared by 
 the Parliament of Canada to be for the general advantage 
 of Canada or for the advantage of two or more of the 
 Provinces. 
 
 11. The Incorporation of Companies with Provincial 
 objects. 
 
 12. The Solemnisation 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 Organisation 
 of Provincial Courts, both of Civil and of Criminal Juris- 
 diction, and including Procedure in Civil Matters in those 
 Courts. 
 
 15. The imposition of punishment by fine, penalty, or
 
 88 CONSTITUTION OF CANADA 
 
 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 aU matters of a merely local or private 
 nature in the Province. 
 
 34 The Roman Catholic minority in Ontario and the 
 Protestant minority in Quebec had the right to Separate 
 or Denominational Schools — the Provinces were forbidden 
 to take away or prejudicially aflfect these rights. 
 
 35 Although aU Judges are appointed by the Dominion, 
 the constitution of the Courts (including Courts of Crimi- 
 nal Jurisdiction) lies with the Province — the Province may 
 erect, abolish or modify any Court, civil or criminal. 
 Justices of the Peace are appointed by the Local Admin- 
 istration but they do not try civU actions: every civil dis- 
 pute of however small dimensions must in our system be 
 tried by a Barrister of some years' standing at his Bar and 
 appointed for life.
 
 LECTURE III 
 
 THE CONSTITUTION IN ITS ACTUAL 
 WORKING 
 
 The written Constitution as it has been dis- 
 played in the last Lecture would seem wholly to 
 justify the pity and sympathy so freely shown 
 us by some of our friends south of the Inter- 
 national line/ 
 
 A King across the sea ruling by the Grace of 
 God and with power not only to appoint the 
 Governor-General but also to disallow any legis- 
 lation the Dominion Parliament may pass — that 
 Governor-General (not responsible to the people 
 of Canada), with power to appoint the whole of 
 one of the Houses of Parliament, to refuse to 
 approve of any legislation he sees fit, to appoint 
 a Privy Council to advise him in the government 
 of the Dominion, to appoint all the Judges and 
 Civil Servants, to dissolve Parliament and while 
 it is In session to direct it as to what it may vote 
 money for — and generally to act the autocrat. 
 Why, Canada could not refuse to pay his salary 
 of £10,000 or even cut it down !
 
 90 CONSTITUTION OF CANADA 
 
 Then in the Provinces, the Lieutenant- 
 Governor himself appointed and removable by 
 the Governor-General, an autocrat in Provincial 
 where the Governor-General is in Dominion mat- 
 ters ; and the Legislature holding by the will of 
 the Lieutenant-Governor while ostensibly granted 
 power of legislation in certain matters is subject 
 to have its legislation reviewed and disallowed by 
 the Governor-General at Ottawa. 
 
 What an intolerable situation ! No citizen of 
 an American State would consent to the appoint- 
 ment of a Governor of his State by Woodrow 
 Wilson ; any American would be indignant if the 
 President of the United States were to assume 
 to review and disallow State legislation. 
 
 But we are not filled with discontent though we 
 have the same feeling as respects personal free- 
 dom and political independence as Americans. 
 
 The reason is to be found in the Constitution 
 (using the word in the English sense) which we 
 apply to the Constitution (using the word in the 
 American sense). 
 
 The King is a constitutional monarch reigning 
 by virtue of an Act of Parliament, who leaves 
 ruling to those whose constitutional duty it is — 
 the Ministry responsible to the people of the 
 British Isles. That Ministry has long ceased to 
 interfere with Canadian affairs and would not
 
 IN ITS ACTUAL WORKING 91 
 
 think of directing or even advising the people of 
 Canada or its Ministry what to do or to leave 
 undone. 
 
 Pains are taken that a Governor-General to 
 be appointed is acceptable to the Canadians ;^ 
 and those who are appointed know well what is 
 expected of them.^ 
 
 Like the King, the Governor-General leaves all 
 the ruling in the hands of his Ministry — like the 
 King, he must find a Ministry which will become 
 responsible for his Acts — if it should ever happen 
 that a Governor-General acted on his own respon- 
 sibility and could not find a Ministry to take the 
 responsibility, he could not remain, his usefulness 
 would be gone. 
 
 Accordingly, what is said to be done by the 
 Governor-General is in fact the act of the 
 Ministry, having the confidence for the time being 
 of the House of Commons elected by the people 
 of Canada. Mutatis mutandis, the same state- 
 ments apply to the Lieutenant-Governor. 
 
 What is the Ministry? The word does not 
 occur in the British North America Act but every 
 one knows what is meant. 
 
 In Canada the Party System is in full vigour* 
 and for very many years there have been but two 
 political parties.^ By a more or less informal 
 method, perhaps a caucus of the Members of
 
 92 CONSTITUTION OF CANADA 
 
 Parliament of the party/ a Leader of the Opposi- 
 tion is selected — when in course of time, that 
 party obtains a majority in the House of Com- 
 mons, the existing Ministry resigns,^ and the 
 Governor-General sends for the Leader of the 
 Opposition.* That gentleman sets out to form 
 a Ministry. All Ministers of the Crown must be 
 members of one of the Houses of Parliament. 
 
 If the Leader of the Opposition finds that he 
 cannot obtain Ministers to aid him in his admin- 
 istration of the affairs of the country, he declines 
 the task of forming a Ministry, and another must 
 be sent for — perhaps the former Prime Minister — 
 until some one is procured who can form a 
 Ministry with which he will undertake to carry 
 on the affairs of the country — he is Prime 
 Minister or Premier. He may not be satisfied 
 with the existing House of Commons, in that case 
 he demands and obtains a new election. 
 
 Whenever there is a Prime Minister with a 
 majority in the House of Commons, the Govern- 
 ment can go on, but not otherwise normally. 
 
 To give the people a chance to express an 
 opinion on the merits of any proposed Minister, 
 he must, if a member of the House of Commons, 
 on accepting an office with salary attached, go 
 back for re-election;^ if a Senator of course he 
 passes no such ordeal.
 
 IN ITS ACTUAL WORKING 93 
 
 The difference between the Prime Minister and 
 any other Minister is that when they cannot 
 agree and one must resign, it is that other and 
 not the Prime Minister who does it. 
 
 All the Ministers are sworn of the Privy 
 Council, the only body known to the written 
 Constitution. 
 
 Most of the Ministers are placed in charge of 
 a Department with a salary attached. ^° Some, 
 however, may be "Ministers without Portfolio" 
 and without salary. 
 
 There is a body quite unknown to the written 
 Constitution, i.e., "The Cabinet" ; this consists of 
 the Prime Minister and such of the members 
 of the Privy Council as he may choose, in Canada 
 generally all the Ministers — so that, speaking 
 broadly, the Cabinet and the Ministry are the 
 same.^^ 
 
 The Privy Council never meets as a body^" since 
 it contains the members of former administra- 
 tions — but the Cabinet is considered to consist 
 of such of the Privy Councillors (who are members 
 of Parliament) as best and most efficiently repre- 
 sent the views and policies of the dominant 
 political party, i.e., the party which has a ma- 
 jority in the House of Commons. ^^ 
 
 It is that part of the Privy Council called 
 the Cabinet which advises His Excellency — His
 
 94 CONSTITUTION OF CANADA 
 
 Excellency in fact signs the papers placed before 
 him. He may advise but he cannot command. 
 
 What has been said of the Governor-General 
 applies mutatis mutandis to the Lieutenant- 
 Governor. 
 
 As has been said, any act ostensibly of either 
 is the act of an Administration responsible to the 
 people's representatives in the popular House. 
 
 It may be that the Governor is not satisfied 
 with his Ministry; he may dismiss them, but if 
 he does he must find another Ministry to take the 
 responsibility of his act — there have been no dis- 
 missals of this kind in Dominion politics, but there 
 have been instances in the Provincial arena.^* 
 Moreover, where a Lieutenant-Governor acts in 
 this way he is responsible to the Governor- 
 General and the Governor-General may remove 
 him on the advice of his Ministers, the Dominion 
 Cabinet. 
 
 There have been several instances of Lieutenant- 
 Governors compelling Local Administrations to 
 have enquiries made by Royal Commissions ; 
 sometimes the investigations so made have been 
 fatal to the Government who either resigned or 
 were defeated at the succeeding election.^^ 
 
 But all these are abnormal ; nothing of the kind 
 has ever taken place in Ontario (for example) — 
 the normal course is for the Lieutenant-Governor
 
 IN ITS ACTUAL WORKING 95 
 
 to take the advice of his Ministers, though enough 
 has been said to show that he is not a mere roi 
 faineant. 
 
 Members of the Senate are appointed, in fact, 
 by the Administration and are in all instances 
 members of the dominant political party^'^ al- 
 though they may not have been active politicians. 
 
 The provision permitting the Sovereign on the 
 recommendation of the Governor-General to add 
 three or six (hereafter four or eight) persons to 
 the Senate was introduced, of course, to enable 
 a deadlock to be broken — as Peers are created in 
 England. This power has never been exercised, 
 and only once recommended;^^ the Home Govern- 
 ment will not interfere in Canadian politics and 
 it recognises that the power is only to be exercised 
 (if ever) when it is absolutely necessary for the 
 purpose of bringing the Senate into accord with 
 the popular House, in the event of an actual 
 collision of a serious and permanent character. 
 
 The provision that every bill for appropriating 
 any part of the public revenue or for imposing 
 any tax or import must originate in the House 
 of Commons is, of course, intended to crystallise 
 the constitutional practice at Westminster and 
 to make it plain that the people hold the purse- 
 strings ; while that which prevents the House 
 passing any such bill unless it shall first have
 
 96 CONSTITUTION OF CANADA 
 
 been recommended by message from the Governor- 
 General emphasises the responsibility of the 
 Ministry of the day for the expenditure of every 
 dollar of public money /^ 
 
 What is done is this : each Minister prepares 
 (or has prepared for him by his permanent 
 officers) an estimate of the expenditures required 
 for the coming year; these are all examined in 
 Council especially by the Finance Minister who 
 has to provide the money — for Governments like 
 all others must cut their coat according to their 
 cloth — and the whole Administration must assume 
 liability for every estimate and every item in it, 
 there being no such thing as divided responsibility. 
 
 The estimates are submitted by the Minister 
 whose estimates they are, at a convenient time 
 early in the Session, to the House of Commons 
 with a formal message from His Excellency. 
 
 Before discussing the division of legislative 
 power between Dominion and Provinces, it may 
 be well to consider briefly the power of dis- 
 allowance. 
 
 When a bill has passed both Houses of Parlia- 
 ment it is presented to the Governor-General for 
 the Royal assent; he may give the Assent at once 
 and in the vast majority of cases he does so, 
 acting on the advice of his Ministry for, of course, 
 the bill could not have passed the House of
 
 IN ITS ACTUAL WORKING 97 
 
 Commons without the approval of the Ministry 
 expressed or implied. If the assent is given, the 
 bill is sent to the Home Administration and there 
 examined; if found unobjectionable from an 
 Imperial point of view, no more is said of it. 
 
 The bill may, however, be found to contain 
 provisions thought not to be wholly consistent 
 with the good of the Empire and it may be dis- 
 allowed at any time within two years — one bill 
 has been thus disallowed but on the ground that 
 it was ultra vires^^ ("unconstitutional" in the 
 American sense). 
 
 The usual course, however, is for the Imperial 
 Government to communicate with the Canadian 
 Government to explain fully the objectionable 
 features, and then the Canadian Parliament at 
 the next session heals the defects. 
 
 In theory, the Governor-General may, as in 
 theory the King may, refuse the Royal assent — 
 he never does in fact ; if he has any doubts he may 
 reserve the bill for His Majesty's pleasure. One 
 such bill has been refused the Royal assent at 
 Westminster,^" all others have been assented to. 
 
 In Provincial matters the Lieutenant-Governor 
 has always acted upon the advice of his Ministers 
 and has never assumed to act on his own judg- 
 ment in cases in which the question of disallow- 
 ance of legislation has arisen.
 
 98 CONSTITUTION OF CANADA 
 
 For some time after Federation, it was the 
 theory at Ottawa that the Local Parliaments were 
 somewhat on a par with Municipal Councils — 
 "A big County Council" was the favourite way of 
 expressing the thought. There were many cases 
 of disallowance where the Dominion and the 
 Provincial Governments were of different politics, 
 some which can hardly justify themselves at the 
 bar of history ; about seventy Provincial Statutes 
 have been disallowed by the Dominion. But for 
 several years the practice has been settled for the 
 Dominion not to interfere except where the legis- 
 lation is plainly ultra vires the Provincial Par- 
 liament. It has been thought that the people of 
 each Province are the best judges of the laws 
 they are to be governed by; if they do not ap- 
 prove of any legislation, they have the remedy in 
 their own hands. We have Home [Rule fully 
 developed. 
 
 We come now to the division of legislative 
 power. 
 
 The whole domain of legislation, civil and 
 criminal, is covered by either Dominion or Prov- 
 ince, i.e., so far as it affects Canada : Canada has 
 not, like Britain, extra-territorial power. ^^ 
 
 Again, the Dominion Parliament and the Local 
 Legislatures have (within the ambit of their juris-
 
 IN ITS ACTUAL WORKING 99 
 
 diction) the same full and ample power which the 
 Imperial Parliament has. 
 
 The powers of the Legislature of the Province are 
 the same in intension, though not in extension as 
 those of the Imperial Parliament. The Legislature 
 is limited in the territory in which it may legislate 
 and in the subjects: the Imperial Parliament is not — 
 that is the whole difference. . . . The power and 
 jurisdiction of Parliament is so transcendent and 
 absolute that it cannot be confined either for causes 
 or persons within any bounds. ... It is a funda- 
 mental principle with English lawyers that Parlia- 
 ment can do everything but make a woman a man 
 and a man a woman. . . . An Act of Parliament can 
 do no wrong though it may do several things that 
 look pretty odd.-^ 
 
 This is the hardest saying for many Americans, 
 whose legislative bodies have their powers cribb'd, 
 cabined and confined by the letter of the Consti- 
 tution of the United States or of the particular 
 State — they are horrified to hear a Court say: 
 "The Legislature within its jurisdiction can do 
 everything which is not naturally impossible, and 
 is restrained by no rule human or divine. . . . 
 The prohibition 'Thou shalt not steal' has no 
 legal force upon the sovereign body, and there 
 would be no necessity for compensation to be 
 given.""
 
 100 CONSTITUTION OF CANADA 
 
 To put the matter in a sentence — the people 
 of the Dominion keep in their own hands the 
 power to legislate for themselves as they please; 
 if any one does not like that principle, he may 
 stay away or go away from the country. 
 
 And we do not propose to be bound by the ideas 
 of a past generation; no Parliament, Dominion 
 or Provincial, can bind any future Parliament 
 or even itself.^* 
 
 But while we do not allow a Court to set aside 
 legislation as unwise or unjust, opposed to 
 natural justice or what not, it is sometimes neces- 
 sary for the Courts to enquire whether particular 
 legislation of Dominion or Province comes within 
 the ambit of the powers conferred by the British 
 North America Act. We have seen that the 
 Dominion does not now disallow Provincial Legis- 
 lation unless in the opinion of the Dominion 
 Government it is ultra vires the Province. But 
 even if allowed by the Dominion to pass, it does 
 not always follow that it is intra vires — it may be 
 called in question by a private litigant and then 
 the Court is bound to determine whether the 
 Province had the right to deal with the subject- 
 matter of the litigation. If so "arguments 
 founded on alleged hardship or injustice can have 
 no weight" ;^^ if not the legislation is void, how- 
 ever valuable and benevolent it may be.^®
 
 IN ITS ACTUAL WORKING 101 
 
 Consideration of particular instances of deter- 
 mination of jurisdiction would lead us here too 
 far afield, and I do not now enter upon such an 
 enquiry. 
 
 It may not be out of place to say a word or 
 two concerning the practical working of the 
 bicameral system at Ottawa. 
 
 Because peculiar circumstances — perhaps the small 
 size of the Chapter House at Westminster — brought 
 about two Houses of Parliament in England, the 
 United States, the Dominion of Canada, all the States 
 of the Union, and two of the nine provinces of the 
 Dominion have two Houses in their Legislature; and 
 it is hard to convince some Americans and a few 
 Canadians that this is not the ideal state of things. 
 We in Ontario have got along for nearly fifty years 
 without feeling the need of an Upper House; but 
 then, of course, we are Radicals. Whether if any 
 one were set to it to frame a Constitution for a people 
 who never have had one, he would erect two houses 
 of legislation to correct each other's errors, every one 
 must decide for himself; we in Ontario want none of 
 it in Ontario. ^^ 
 
 In the Dominion Parliament (and also in two 
 of the Provinces) there are two Chambers with 
 sometimes odd results. 
 
 In the old Parliaments of the Provinces before 
 Confederation, particularly in early times, the
 
 102 CONSTITUTION OF CANADA 
 
 two Houses had many quarrels, generally, how- 
 ever, concerning the control by the Lower House 
 over the money of the Province, which really is the 
 essence of Responsible Government. 
 
 But the principle of Responsible Government 
 being firmly established by the time of Confed- 
 eration, the disputes since Confederation have 
 been not constitutional but (however disguised) 
 largely political. 
 
 Senators are appointed by the Administration 
 and from the same party — they are men as a rule 
 of mature years and their rate of mortality is 
 rather high (although it is said that the Senate 
 is conducive to longevity and at least one Senator 
 of Canada died over a hundred years of age).^® 
 
 The result is that if an Administration remains 
 long in power, there is a decided preponderance 
 in the Senate of members of that political party — 
 and the majority are disposed to be critical of 
 the measures of a Government displacing that of 
 their own party. As time goes by, deaths occur 
 and the pendulum swings the other way : the result 
 is that it is only during the first years of an 
 Administration that the Senate is to be feared,^* 
 in a very few years it supports the Government. 
 
 When the Senate is of the same political party 
 as the Commons, very little is heard of a move- 
 ment to abolish or amend it: when it is trouble-
 
 IN ITS ACTUAL WORKING 103 
 
 some by refusing to carry Government measures, 
 a cry is raised by some for its abolition or amend- 
 ment, but this is not continuous or influential. 
 While there are a few who consistently urge such 
 a scheme, however the Senate may be constituted, 
 they are only a few: in most cases, it is the 
 political creed of the voter which determines his 
 view of the usefulness of this second Chamber — 
 and in any case we escape the undemocratic result 
 of a second Chamber being always of one political 
 party.^" 
 
 The Legislative Councils in the two Provinces 
 which still retain them, are of little consequence — 
 they have the same opportunities for obstruction 
 and annoyance to an incoming Administration as 
 the Senate but do not seem to have taken much 
 advantage of them. 
 
 No Province with only one Chamber has ever 
 desired two ; while at least one of those with two 
 has groaned under the imposition. Nor has there 
 been found crudity or want of thought more in 
 the monocameral than in the bicameral Provinces.
 
 NOTES TO LECTURE III 
 
 1 There was a time when the misunderstanding by 
 many Americans of the true condition, politically and 
 constitutionally, of Canada and Canadians was the cause 
 of much annoyance and exasperation; but we have learned 
 better and now it rather amuses. 
 
 The several invasions of Canada by its neighbours from 
 the South have all been ostensibly to free Canadians from 
 bondage, and nothing could exceed the astonishment of the 
 would-be deliverers at the want of appreciation and grati- 
 tude on the part of the slaves they had come to set free. 
 
 Arnold and Montgomery in 1775-1776 were as benevolent 
 in their intentions as HuU in 1812. HuU in his Proclama- 
 tion (said to have been written by Lewis Cass and certainly 
 approved by him) told the Canadians: "I come to protect 
 not to injure you. . . , The arrival of an army of friends 
 must be hailed by you with a cordial welcome. You will 
 be emancipated from tyranny and oppression and restored 
 to the dignified station of freemen." After that, who can 
 be so suspicious as to attribute the invasion of Canada 
 to the schemes of conquest of Henry Clay and his War 
 Hawks? 
 
 General Thomas Jefferson Sutherland at the head of an 
 army of American "Sympathisers" in 1838 addressed the 
 unhappy Canadians thus: "You are called upon by the 
 voice of your bleeding country to join the Patriot forces 
 and free your land from tyranny. Hordes of worthless 
 parasites of the British Crown are quartered upon you to 
 devour your substance — to outrage your rights — to let 
 loose upon your defenceless wives and daughters a brutal 
 soldiery. Rally then, around the standard of liberty and 
 victory and a glorious future of independence will be 
 yours." And there is nothing to indicate that he was
 
 NOTES TO LECTURE III 105 
 
 not perfectly sincere. Even the Fenians in 1866 express 
 their desire to set Canada free from British tyranny. 
 
 On every occasion of invasion there was the intention 
 to raise the victims of monarchical oppression to the 
 glorious height of freedom assured by American citizen- 
 ship: and on every occasion Canadians resisted to the death. 
 
 "Who would be free themselves must strike the blow." 
 
 2 The list of Governors-General includes the names of 
 Viscount Monck, Lord Dufferin, the Marquis of Lome 
 (afterwards Duke of Argyle, son-in-law of Queen Victoria), 
 the Marquis of Lansdowne, Lord Minto, Lord Stanley of 
 Preston (afterwards Earl Derby), the Earl of Aberdeen, 
 the Duke of Connaught (the son of Queen Victoria and 
 uncle of the present King), and the Duke of Devonshire. 
 
 3 As indicating that many of the English people do not 
 understand the true position of the Governor-General, 
 reference may be made to the remarks of an English news- 
 paper when the present incumbent was appointed, that 
 "the Duke of Devonshire had all the qualifications for ruling 
 a colony." No Governor-General or Lieutenant-Governor 
 rules in Canada. 
 
 * It may seem strange to say that the Party system is 
 much more developed and mature in Canada than in the 
 United States: but I venture to assert that that is true. 
 In Canada, every great measure is the work of one or 
 other party (I except what is done in time of war when 
 all rules are disregarded). If it be said that the same is 
 the case in the L^nited States, I ask what Party is respon- 
 sible for Mr. Taft's proposed reciprocity measure? for the 
 Spanish War? for the recent "filibuster"? 
 
 5 Third parties have so far not been of much moment 
 in Canada — the most promising of them were perhaps 
 (1) the "Equal Rights Party" which came into existence 
 as a protest against the Province of Quebec being permitted 
 to pay to the Jesuits a certain amount of money for their 
 estates confiscated after the Conquest in 1759-1760 — this
 
 106 CONSTITUTION OF CANADA 
 
 was a Dominion Party which thought that the Provincial 
 Statute awarding the Jesuits compensation should have been 
 disallowed; (2) the "Grangers," rather a Provincial party 
 in Ontario with somewhat indefinite views as to the rights 
 of the farming community. These parties are now prac- 
 tically if not wholly defunct. No such spectacle was ever 
 exhibited in Canada as that presented at the Presidential 
 Election in the United States in 1912 and many previous 
 elections. 
 
 6 This was the method in which (Sir) Wilfrid Laurier 
 was selected as leader of the Reform (Grit) Party in 1887, 
 and (Sir) Robert Borden, leader of the Conservative 
 (Tory) Party in 1901. The present leader of the Opposi- 
 tion in Ontario was elected at a convention of the Reform 
 Party. 
 
 7 The Government sometimes instead of resigning ad- 
 vises the Governor-General to dissolve Parliament; he may 
 assent and if the party in power can obtain a majority in 
 the new House of Commons it retains the seals of office: 
 if it be defeated it must resign. The present practice is 
 for the Government to resign as soon as it is certain that 
 it is defeated at an election; but it cannot yet be called 
 unconstitutional for the defeated Government to hold office 
 tiU it is voted down in the House of Commons. 
 
 If the Governor-General refuse to allow a new election, 
 he must find some Ministry which wUl assume the respon- 
 sibility for such refusal — this he does by sending for the 
 Leader of the Opposition, and in most instances he will 
 demand and be granted an election. 
 
 8 There is no such body as "the Opposition" known in 
 the written Constitution and no such person as "the Leader 
 of the Opposition": but everybody knows them, and the 
 Leader of the Opposition at Ottawa is paid a salary of 
 $7,000 by the country— R. S. Can. (1906), c. 10, s. 39— in 
 addition to the sessional allowance of $2,500 given to all 
 Members of Parliament— R. S. Can. (1906), c. 10, s. 37.
 
 NOTES TO LECTURE III 107 
 
 This affords a not very remote analogy with the Advo- 
 catus Diaboli in Courts which are to pass upon the pro- 
 posed canonisation of a saint — and to the employment and 
 payment by the State of Counsel for an accused upon his 
 trial. 
 
 9 It is not unusual for the Opposition to allow a Minister 
 to be returned by acclamation: but this is by no means 
 universally the case, and, speaking generally, it may be 
 said that the Minister is opposed when there is good chance 
 of defeating him. 
 
 10 At present $7,000 (except the President of the Privy 
 Council, the Prime Minister, Sir Robert Borden, who re- 
 ceives $12,000). 
 
 11 This is not necessarily the case: till a short time ago 
 the Solicitor-General was not a member of the Cabinet: 
 in the British Isles it is the normal condition that several 
 Ministers are excluded from the Cabinet. 
 
 12 In England the Privy Council meets as a body only 
 on the demise of the Crown: in Canada, not even on that 
 event. 
 
 13 At present there are eighteen members of the Cabinet : 
 (1) Sir Robert Borden, President of the Privy Council; 
 the Ministers (2) of Trade and Commerce; (3) of Public 
 Works; (4) of Railways and Canals; (5) of Finance; 
 (6) of Marine and Fisheries; (7) of Justice; (8) of Militia 
 and Defence; (9) of the Interior and of Indian Affairs; 
 (10) of Labour; (11) of Customs; (12) of Agriculture; 
 (13) of Inland Revenue; (14) the Postmaster-General; 
 (15) Secretary of State — these are aU paid; (16) Solicitor- 
 General and two without portfolio (or salary). 
 
 14 His Honour Luc Letellier de St. Just, Lieutenant- 
 Governor of Quebec, in March, 1878, dismissed his Ministers 
 because they did not receive with due consideration his 
 recommendations, particularly in respect of a biU which in 
 his opinion would deprive Her Majesty's subjects in Quebec 
 of their undoubted right to the protection of the Courts of
 
 108 CONSTITUTION OF CANADA 
 
 Law. He sent for M. H. G. (afterwards Sir Henri) Joly, 
 the Leader of the Opposition, who formed a Ministry but 
 could not carry the Legislative Assembly (he was defeated 
 by 33 votes to 13) ; he then applied for and obtained a 
 dissolution. The new House was almost evenly divided, 
 and as the session proceeded the Ministry lost strength and 
 the Legislature was prorogued. 
 
 The existing Dominion Administration was of the same 
 politics as Joly: and a resolution was voted down in the 
 House of Commons (though it carried in the Senate) which 
 asserted that the action of LeteUier was opposed to the 
 principles of Constitutional Government. 
 
 The next Dominion Parliament saw the other party 
 returned to power, the resolution was passed and the 
 Governor-General was advised by his Ministry that "the 
 usefulness of Mr. LeteUier as Lieutenant-Governor of 
 Quebec was gone," and he was removed. 
 
 In 1891 an investigation by a Committee of the Senate 
 of Canada seemed to show that grave irregularities or worse 
 had taken place in the dealings of the Quebec Government 
 headed by M. Honore Mercier, the Lieutenant-Governor. 
 His Honour A. R. Angers insisted on the matter being 
 investigated by a Royal Commission of three judges, the 
 evidence before whom developed new and startling facts. 
 After an interim report by two of the judges (the third 
 being ill), the Lieutenant-Governor dismissed the Ministry 
 and sent for de Boucherville, the Leader of the Opposition 
 who formed a new Ministry. An election demanded by 
 the new Administration resulted in a complete victory, as 
 more than two-thirds of the new Assembly were supporters 
 of the Government. 
 
 15 Two years ago in Manitoba, grave charges were made 
 of frauds in public buildings being erected by the Prov- 
 ince: no sufficient enquiry could be made by the House as 
 the Government had there a considerable majority: the 
 Lieutenant-Governor, Sir Douglas Cameron, insisted on the
 
 NOTES TO LECTURE III 109 
 
 appointment of a Royal Commission to investigate — the 
 evidence before the Royal Commission showed over- 
 payments to the contractor with the knowledge of a 
 Government architect — the Government resigned and Mr. 
 Norris, the Leader of the Opposition, was sent for: he 
 formed a Ministry and at the ensuing election was over- 
 whelmingly successful. The contractor, Kelly, was con- 
 victed and sent to the penitentiary; the jury disagreed as 
 to the guilt of Sir Rodmond Roblin, the quondam Prime 
 Minister, and his surviving associates, and they have to be 
 tried again. 
 
 16 The appointments are not always (though frequently, 
 indeed generally) made for political services rendered or 
 because the appointee has been or is a political partisan — 
 for example, Mr. (afterwards Sir) James Robert Gowan, 
 a retired County Court Judge, was appointed in 1895 and 
 proved a most useful Senator. 
 
 Politics run as strong and party lines are as closely 
 drawn in Senate as in House. It is not whoUy without 
 precedent that a Senator has changed to the dominant 
 party: but it cannot be said that he increased his reputation 
 by the change. 
 
 1' On the admission of British Columbia into the 
 Dominion, it had been agreed that the Dominion should 
 build a transcontinental railway connecting British Col- 
 umbia with the remainder of Canada, work to begin in two 
 years, to be completed in ten. On the defeat of the 
 Macdonald Administration which had made this agreement, 
 Alexander Mackenzie came into power with a policy to 
 build the railway more slowly, utilising "the water- 
 stretches." British Columbia was insistent. Mr. (after- 
 wards Sir) James D. Edgar went out as agent of the 
 new Dominion Government, to arrange terms of compromise 
 if possible, but failed. The Dominion Administration hoped 
 to placate the angry British Columbians by building in their 
 Province a railway about sixty-five miles long, from
 
 no CONSTITUTION OF CANADA 
 
 Esquimau to Nanaimo: the House of Commons passed a 
 bill for this purpose but the Senate rejected it — the domi- 
 nant party in the Commons was the Reform (or Grit) 
 Party, but in the Senate the Conservatives (or Tories) were 
 in the majority. 
 
 Mackenzie's Government made an application to Her 
 Majesty to direct that six members should be added to the 
 Senate "in the public interests": but though it was not so 
 stated in the application, it was obvious that the real object 
 was to overcome the adverse majority of Conservatives in 
 the Senate, and the application was refused. 
 
 The British Government knows better than to assist 
 one Canadian party against the other — that would not be 
 constitutional though wholly legal. 
 
 18 Sections 53 and 54. Sometimes for convenience bills 
 involving public expenditures are introduced in the Senate: 
 the money sections are printed in the bill so as to make it 
 intelligible, but these sections are always struck out in 
 Committee. When the bill is sent up to the Commons, 
 these sections are in red ink or italics and supposed to 
 be blank and inserted in the Commons. 
 
 While by Rule of the House of Commons copied from 
 the celebrated Rxde passed by the Imperial House of 
 Commons, July 30, 1878 (9 E. Com. J. 235, 509), when the 
 House of Lords rejected the Paper Duties Bill, the "aid 
 and supplies granted to His Majesty . . . are the sole gift 
 of the House of Commons . . . and . . . such grants . . . 
 are not alterable by the Senate," instances have been 
 known, not many in number and "not to be drawn into a 
 precedent," that an amendment in the Senate has been 
 acquiesced in by the Commons — for example, when such a 
 course has been found necessary so as not to delay the 
 passage of a bill at a late period of the session. 
 
 The usual course, however, is to give the Senate an 
 opportunity of withdrawing its unconstitutional inter- 
 ference.
 
 NOTES TO LECTURE III 111 
 
 19 In May, 1873, a bill which had been passed by the 
 Canadian Parliament to provide for the examination on 
 oath of witnesses before Parliamentary Committees in 
 certain cases, was transmitted to Westminster with a 
 memorandum by the Minister of Justice expressing doubts 
 of the competency of the Canadian Parliament to pass the 
 biU. The Law Officers of the Crown advised Her Majesty 
 that the Act was ultra vires and it was disallowed, as the 
 Canadian Government had in effect invited. 
 
 20 In the first session of the first Parliament of the 
 Dominion, a bill was passed for reducing the salary of the 
 Governor-General from £10,000 to £6,500: this the 
 Governor-General, Viscount Monck, reserved for Her 
 Majesty's pleasure. The Secretary of State for the Colonies 
 notified Lord Monck that while it was with reluctance and 
 only on serious occasions that the Queen's Government 
 could advise Her Majesty to refuse assent to a biU passed 
 by the Canadian Parliament, the effect of this bill being 
 to reduce the Governor-General to the third-class of 
 Colonial Governors, it was thought it should not become 
 law. 
 
 In 1869 the Dominion Parliament fixed the salary at 
 £10,000 ($48,666.63). 
 
 The power of disallowance by the Home Government 
 began in very early Colonial times, indeed in the time of 
 the government of colonies by Chartered Companies. The 
 history of this power is given very fully in an Article, 
 "The Royal Disallowance," by Prof. Charles M. Andrews 
 of Yale University, in the Proceedings American Anti- 
 quarian Society, October, 1914. 
 
 There is also a valuable discussion in a publication of 
 the Department of History, etc.. Queen's University, Kings- 
 ton, Ontario, No. 22, January, 1917, "The Royal Disallow- 
 ance in Massachusetts," by Prof. A. G. Dorland of that 
 University. 
 
 21 For example, the Imperial Parliament could make
 
 112 CONSTITUTION OF CANADA 
 
 it a crime for a British subject to go to the top of Pike's 
 Peak: Canada could not: but she could make it a crime 
 for any one to go to the top of (say) the Mountain at 
 Montreal. 
 
 22 Language of my own in giving judgment in the case 
 of Smith V. City of London, (1909), 20 O. L. R., 131 at p. 
 137. 
 
 23 Language of my own in giving judgment in Florence 
 V. Cobalt, (1908), 18 O. L. R., 275 at p. 279. The Florence 
 Mining Company claimed that it had performed aU condi- 
 tions precedent to entitle it to the ownership of a valuable 
 mining claim, but the Ontario Government sold it to the 
 Cobalt Mining Company, and the Ontario Legislature 
 passed an Act confirming this sale. At the trial, I took it 
 as proven that the Florence Company had owned the claim 
 and held that the Legislature had the power to take it 
 away and give it to the Cobalt Company without compen- 
 sation. This decision created much dismay and some 
 indignation — Goldwin Smith was especially outraged by 
 it — but it was a mere commonplace. The Court of Appeal 
 for Ontario and the Judicial Committee of the Privy 
 Council both confirmed the judgment: both based their 
 judgment on the ground that the Florence Company was 
 not entitled to the claim, but both expressly approved of 
 the law as I had laid it down. 
 
 I have received within the month in which these lines 
 are written, a letter from a very prominent and public- 
 spirited American lawyer in which he asks me to modify 
 certain remarks made at the recent meeting of the "Ameri- 
 can Society for the Judicial Settlement of International 
 Disputes" on this subject; and he adds: 
 
 "My principal reason for the request is this: There are 
 in this country some men in the courts and in universities 
 who claim that exercise of the power to declare acts of the 
 legislature unconstitutional or — as your courts express it — 
 ultra vires, is a usurpation. They would take advantage
 
 NOTES TO LECTURE III 113 
 
 of your statement to fortify their argument, and without 
 reference to what you afterwards said will quote you as 
 saying that the Legislature of Canada had unrestricted 
 power and was not bound even by the Ten Commandments. 
 You would, I am sure, regret that you should furnish 
 ammunition for their mischievous campaign." 
 
 I could give my friend no comfort. 
 
 2i "The Legislature has no power to control by anticipa- 
 tion the actions of any future Legislature or of itself." 
 Smith V. City of London, 20 O. L. R. at p. 142. 
 
 25 The language of the late Sir Charles Moss, Chief 
 Justice of Ontario (vaJde deflendi), in Florence v. Cobalt, 
 18 O. L. R. at p. 293. 
 
 26 Where the question is raised of the power of the 
 Legislative body. Dominion or Provincial, to pass a Statute, 
 our Ontario Courts require the Attorneys-General of the 
 Dominion and of the Province to be notified so that they 
 can be heard before the question is disposed of. 
 
 Moreover, either before or after the passing of legis- 
 lation, the Government may require the opinion of the 
 Supreme Court of Dominion or Province, as the case may 
 be, as to the validity of such legislation proposed or actual. 
 Counsel are appointed and paid by the Government 
 (usually) to argue both sides. 
 
 2T The quotation is from an address by myself delivered 
 before the Wisconsin State Bar Association at Green Bay, 
 Wise, June 24, 1914, 
 
 28 The Honourable David Wark from Fredericton, New 
 Brunswick, who, born in 1804, was a member of the Senate 
 tiU 1905: Sir Mackenzie Bowell is still active in the Senate 
 in his ninety-fourth year. 
 
 29 The first Administration in Canada was the Con- 
 servative Administration of Sir John A. Macdonald: when 
 that was defeated in 1872, the incoming Reform Adminis- 
 tration of Alexander Mackenzie found an adverse majority
 
 114 CONSTITUTION OF CANADA 
 
 in the Senate. As at first constituted in 1867, it was fairly 
 divided between the political parties, but Macdonald had 
 seen to it that Conservatives were appointed to vacancies. 
 The Senate voted down the Government railway scheme, 
 and the Home Administration refused to add members to 
 the Senate. 
 
 One of the members of the Government proposed that 
 the Provinces should elect their own Senators, and that 
 their term should be limited — the House was not in favour 
 of abolishing the Senate altogether, and nothing had been 
 accomplished when Macdonald came into power again in 
 1878. No trouble was met with in the Senate tiU the Con- 
 servatives lost power in 1896; in the first session of the 
 new Administration of Sir WUfrid Laurier, a raUroad 
 scheme for opening up the Yukon Territory was voted 
 down by the Conservative majority in the Senate, and the 
 Senate proved troublesome in other respects. 
 
 But time heals all; Conservative Senators die as well 
 as Reformers — and only Reformers were appointed, so that 
 when Sir Wilfrid went out on the Reciprocity policy in 
 1911, the Reformers were in the majority. 
 
 Sir Robert Borden who succeeded Sir Wilfrid had his 
 troubles with the Reform Senate as Sir Wilfrid had with 
 the Conservative Senate. A biU to give ships of war to the 
 Fleet instead of Canada building and owning ships herself 
 was voted down; additional representation in the Senate 
 was delayed until after the present Parliament, etc. 
 
 But death has not been idle — and the present Govern- 
 ment may, when it wUl, have a clear majority in the Senate. 
 
 30 There does not seem to be a real movement of any 
 importance for the abolition of the Senate. Logically it is 
 hard to find an excuse for its existence, but we are not a 
 logical people — if an institution M^orks well or even does 
 no great harm, we are likely to leave it alone whatever we 
 might do if we were framing an entirely new scheme.
 
 NOTES TO LECTURE III 115 
 
 NOTE ON ADMINISTRATIONS (SINCE CONFED- 
 ERATION) IN THE DOMINION OF CANADA 
 AND THE PROVINCE OF ONTARIO 
 
 In the Domixion 
 
 1. The two political parties in "the Canadas" (i.e., the 
 United Province of Canada, composed of Upper and Lower 
 Canada) had in 1864. joined hands and formed a Coalition 
 Government under the Premiership of Mr. John A. Mac- 
 donald, for the purpose of bringing about a Confederation 
 of British America — this Government had been weakened 
 in 1866 by the withdrawal of George Brown, the most 
 influential and powerful of the leaders of the Reform 
 (Clear Grit) party. But others of that party remained 
 in the Government — when Confederation became a fact, a 
 Reform Party Convention in Upper Canada condemned 
 Coalition (except for a temporary purpose), but neverthe- 
 less these gentlemen accepted the invitation of Mr. Mac- 
 donald to join his Ministry for the Dominion. The first 
 election resulted in favour of the Coalition Government, 
 and the first Prime Minister of the Dominion (now become 
 Sir John A. Macdonald) had a large majority in the House 
 of Commons. 
 
 Macdonald had made his way, without early advantages, 
 to the leadership of the Conservative Party by sheer deter- 
 mination joined to unrivalled skill in political management 
 of men and no small amount of intellectual capacity. 
 Alexander Mackenzie, who had been a working stone-mason, 
 speedily established himself as Leader of the Opposition. 
 While the form of a Coalition was kept up, in fact the 
 Administration became in substance Conservative. 
 
 In November, 1873, the House of Commons passed a 
 vote of want of confidence in the Ministry — they had been 
 charged with receiving large sums of money from a 
 contractor for election purposes, "the Pacific Scandal." 
 The Ministry at once resigned. Mackenzie was sent for by 
 His Excellency: he formed a Ministry, and in January, 
 1874, went to the country. Since the defeat of Sir John 
 A. Macdonald there has never been any pretence of 
 Coalition or non-party government in the Dominion. 
 
 2. At the general election, the Reform Party obtained 
 an overwhelming majority, 161 Members in a House of 205. 
 But Macdonald remained Leader of the Conservative Party, 
 having been retained by a caucus of his followers, and at
 
 116 CONSTITUTION OF CANADA 
 
 the general election in 1878 that party obtained a majority, 
 having 146 Members in a House of 206, on the issue of 
 Protection, "the National Policy," as it was and stiU is 
 called. 
 
 Mackenzie resigned at once without waiting for an 
 adverse vote of the House; Macdonald was sent for and 
 formed a Ministry, purely Conservative. 
 
 3. Macdonald remained Prime Minister tiU his death, 
 having no rival in the affection and confidence of his Party. 
 Mackenzie, AprU, 1880, resigned his leadership of the 
 Opposition and was succeeded by Edward Blake (pre- 
 viously Prime Minister of Ontario and afterwards a 
 member of the Imperial House of Commons), who was 
 elected Leader of the Opposition at a caucus of the Liberal 
 Members of Parliament much against his own desire, it is 
 said. Mr. Blake remained Leader of the Opposition and 
 led the Reform forces at the General Elections of 1882 and 
 1887, but unsuccessfully. His health gave way and in June, 
 1887, he met his party in caucus and insisted that his 
 resignation should be accepted. For a short time the 
 leadership was "in commission," but June 7, 1887, Mr. 
 
 (now Sir) Wilfrid Laurier was chosen leader by the party 
 caucus: he has ever since been the leader of the Reform 
 Party whether in power or in opposition. 
 
 Sir John went to the country in 1891 and succeeded in 
 obtaining a majority, but he died June 6 of that year. 
 
 Mr. (afterwards Sir) John J. C. Abbott, a Senator and 
 a member of the Ministry without portfolio, was entrusted 
 with the duty of forming a Ministry, which he did by 
 continuing his colleagues in office and himself becoming 
 President of the Council. 
 
 4. The Abbott Administration, confessedly a stop-gap, 
 lasted tiU November, 1892, when Abbott resigned and Sir 
 John S. D. Thompson became Prime Minister. 
 
 5. He continued such till his death at Windsor Castle 
 in 1894. Senator Mackenzie Bowell, the senior Privy 
 Councillor and Minister of Railways in the Thompson 
 Government, succeeded December, 1894. 
 
 6. Sir Mackenzie's Administration had many dissen- 
 sions; Ministers deserted their chief and at length a 
 compromise was reached that he should be Prime Minister 
 tiU the end of the then current session (of 1896) and be 
 succeeded by Sir Charles Tupper, Bart., then the High 
 Commissioner in London and one of the most forceful and 
 able members of the Conservative Party. Sir Charles
 
 NOTES TO LECTURE III 117 
 
 entered the House of Commons as Leader of the Govern- 
 ment in> that House, and when Parliament was prorogued 
 he became Prime Minister and proceeded to reorganise the 
 Cabinet, which was sworn in May 1, 1896. 
 
 7. His Premiership was short: he must needs go to the 
 country as the term of this, the seventh Parliament, had 
 expired. The main issue at this election was whether the 
 Dominion should interfere with the legislation of the Prov- 
 ince of Manitoba which, it was claimed, interfered with 
 rights of Roman Catholics in respect of their separate 
 schools. The electorate gave a decided negative to the 
 proposition. At the election, June 23, 1896, there was a 
 debdcle comparable to that of 1878 but affecting the oppo- 
 site party — the Liberals returned 119 against 89 Conserva- 
 tives (there were 3 Patrons of Industry, "Grangers," and 
 2 Independents). Tupper resigned July 8, without waiting 
 for an adverse vote: Laurier was sent for and July 13 he 
 completed his Cabinet. 
 
 8. Laurier's Administration weathered the General 
 Election of November, 1900, with a majority of 53, that 
 of November, 1904, with a majority of 52, and that of 
 1908 with a majority of 47. In September, 1911, Sir 
 Wilfrid took the opinion of the electors on the reciprocity 
 offered by the United States — the vote was adverse, 133 to 
 88 — and he resigned the following month. 
 
 On the defeat of Sir Charles Tupper in 1896, he had 
 retired from Canadian public life and at a caucus of the 
 party in 1901, Robert Laird Borden was elected Leader of 
 the Opposition. 
 
 Mr. (now Sir) Robert Borden was sent for and formed 
 a Ministry. 
 
 9. Sir Robert Borden's Ministry is stUl in power. 
 
 The following then are the Prime Ministers of Canada 
 since Confederation: 
 
 1. Sir John Alexander Macdonald, July 1, 1867, to 
 November 7, 1873. 
 
 2. Hon. Alexander Mackenzie, to October 17, 1878. 
 
 3. Sir John Alexander Macdonald, to June, 1891. 
 
 4. Sir John J. C. Abbott, to December, 1892. 
 
 5. Sir John S. D. Thompson, to December, 1894. 
 
 6. Sir Mackenzie BoweU, to April, 1896. 
 
 7. Sir Charles Tupper, Bart., to July, 1896. 
 
 8. Sir Wilfrid Laurier, to October, 1911. 
 
 9. Sir Robert Laird Borden, to . 
 
 Sir Wilfrid Laurier is the Leader of the Opposition.
 
 118 CONSTITUTION OF CANADA 
 
 In the Provikce of Ontario 
 
 At Confederation, John Sandfield Macdonald was 
 entrusted with the formation of a Ministry for tlie Prov- 
 ince of Ontario. His Ministry was, like that of the 
 Dominion, ostensibly non-party: but the Liberal Party was 
 as little tolerant of such a Government in the Provincial 
 as in the larger field. It was not organised, however, and 
 the first General Election resulted in a majority for the 
 Government. 
 
 1. John Sandfield Macdonald had to contend with a 
 very active Opposition whose leaders were Edward Blake 
 and Alexander Mackenzie, both well known in the politics 
 of the Dominion. Of the 82 Members, 46 were nominally 
 Liberals and 36 Conservatives, but of the former 9 (after- 
 wards known as "The Nine Martyrs") supported the 
 Government. At the General Election of 1871 the numbers 
 were not far from equal: the Government suffered defeat 
 in the House and resigned, December, 1871. Mr. Blake was 
 sent for by His Honour and formed an Administration. 
 
 John Sandfield Macdonald refused to attend a Con- 
 servative caucus and Mr. M. C. Cameron was elected 
 Leader of the Opposition. 
 
 2. The Administration of Edward Blake did not last 
 long — legislation at Ottawa forbade "Dual Representation," 
 i.e., the same person being member of both the Dominion 
 and the Provincial Parliament. Mr. Blake and Mr. Mac- 
 kenzie resigned their seats in the Local House: and advised 
 His Honour to send for Mr. (afterwards Sir) Oliver 
 Mowat, then a Vice-ChanceUor of the Court of Chancery. 
 Mr. Mowat succeeded in forming a Ministry, October, 1872. 
 
 3. The Administration of (Sir) Oliver Mowat was the 
 longest in the history of Responsible Government in any 
 country, lasting as it did from 1872 to 1896, when he 
 resigned to take a place in the new Dominion Administra- 
 tion of (Sir) Wilfrid Laurier. He survived the General 
 Elections of 1875, 1879, 1883, 1886, 1890 and 1894. 
 
 On the resignation of Mowat, he was, in July, 1896, 
 succeeded by Arthur Sturgis Hardy. 
 
 4. Mr. Hardy held the reins of power until failing 
 health compelled him to retire from political life — he 
 resigned October, 1899, and was succeeded by Mr. (after- 
 wards Sir) George W. Ross, who had been his Minister 
 of Education. 
 
 5. Mr. Ross was defeated at the General Election, 
 January, 1905.
 
 NOTES TO LECTURE III 119 
 
 When Mr. M. C. Cameron went on the Bench as a 
 Justice of the King's Bench, he was succeeded by Mr. 
 W. H. Scott, Mr. (afterwards Sir) William Ralph Mere- 
 dith (now Chief Justice of Ontario), Mr. Marter, Mr. 
 Howland and finally by Mr. (afterwards Sir) James Pliny 
 Whitney in succession as Leaders of the Opposition. Mr. 
 Whitney was the Leader of the Opposition (chosen in 
 caucus) at the time of the defeat of the Ross Adminis- 
 tration: he was sent for and formed a Government. 
 
 6. His Government remained in power until liis death 
 in 1915, when he was succeeded by Mr. (now Sir) WUliam 
 H. Hearst. 
 
 7. Sir William Hearst is stiU at the helm of the Prov- 
 ince. 
 
 The Prime Ministers of Ontario then have been: 
 
 1. John Sandfield Macdonald, July 1, 1867, to Decem- 
 ber, 1871. 
 
 2. Edward Blake, to October, 1873. 
 
 3. Sir Oliver Mowat, to July, 1896. 
 
 4. Arthur Sturgis Hardy, to October, 1899. 
 
 5. Sir George W. Ross, to January, 1905. 
 
 6. Sir James Pliny Whitney, to 1915. 
 
 7. Sir William H. Hearst, to . 
 
 After the retirement of (Sir) George W. Ross from 
 Provincial politics, George Graham was elected Leader of 
 the Opposition in Ontario by a caucus of the Reform 
 Members of the Legislature; when Mr. Graham went to 
 Ottawa as a Minister in the Laurier Administration, 
 Alexander G. McKay, K.C., was elected in his stead by 
 the same body. The present Leader of the Opposition, 
 N. W. Rowell, K.C., was chosen at a Convention of the 
 Reform Party, to succeed Mr. McKay.
 
 LECTURE IV 
 A COMPARATIVE VIEW 
 
 The spectacle of two peoples growing up side 
 by side on the same Continent with substantially 
 the same conceptions of liberty and justice, with 
 substantially the same ancestry, with the same 
 language and religion, the same literary models, 
 and yet with diverse political methods, is one of 
 very great interest. 
 
 Whether it is better for a nation to attain self- 
 government by one stroke severing all political 
 and national connection with the mother country 
 or by steady pressure of a constitutional char- 
 acter gradually to achieve its rights without a 
 violent severing of old ties or abandonment of the 
 old flag, is a matter of opinion, of temperament, 
 perhaps of taste. 
 
 The English Colonies in the eighteenth century 
 followed the one, Canada the other course — and 
 this to a very large extent explains our resem- 
 blance in national matters to Britain. 
 
 The British North America Act is a Canadian 
 production as much as the Constitution of the
 
 A COMPARATIVE VIEW 121 
 
 United States is an American production; in 
 form it is the will of the Imperial Parliament, in 
 fact the will of Canadian representatives reduced 
 to the form of a Statute for formal, legal and 
 "constitutional" reasons. 
 
 Naturally, as we remain part of the British 
 Empire, the Sovereign is the head of our State: 
 he cannot be present in person and therefore has 
 a representative, the Governor-General, whose 
 powers^^ are much the same in Canada as those 
 of the King in the United Kingdom. 
 
 The real power, however, is in the Ministry, 
 responsible to the people's representatives in the 
 House of Commons. 
 
 The representation in the House of Commons 
 is on much the same principles in both Home 
 Country and Dominion — we have, however, gone 
 further in providing for representation by popu- 
 lation^ from the several parts of the Dominion, 
 resembling in that regard the United States. 
 
 In the Second Chamber there are fundamental 
 differences — a limit is placed on the number of 
 Senators and the principle of heredity is absent,^ 
 as it must be in a democratic nation. The limit 
 placed on the numbers was necessary or at least 
 was undoubtedly wise — the numbers from the 
 several parts of the Dominion being kept within 
 reasonable limits.
 
 122 CONSTITUTION OF CANADA 
 
 The most marked differences between the 
 Imperial and Dominion Parliaments arise from 
 the facts that the Imperial authorities must keep 
 within their own hands the international relations^ 
 of the Empire and that some authority must 
 exist to protect the interests of the Empire as 
 a whole. The Imperial Parliament must retain 
 power to deal with British subjects all over the 
 world: Canada is not specially concerned with 
 matters outside of her own boundaries.^ 
 
 The contrast between the United States and 
 Canada is more far-reaching than that between 
 the United Kingdom and Canada. 
 
 A monarch (called a President) elected, not 
 born and in consequence of birth succeeding under 
 an Act of Parliament, ruling'' for four years not 
 for life, taking not only an active but even a 
 determining part in the government of the 
 country, really and not simply in form selecting 
 his Ministry, a Ministry responsible to him and 
 not to the people or their representatives — it is 
 obvious that there is no real analogy between the 
 President and our King. Nor is the analogy 
 strengthened if we think of the Governor-General 
 instead of the King with whom to compare the 
 President. 
 
 The nearer analogy would be between President 
 and Prime Minister; but the President, although
 
 A COMPARATIVE VIEW 123 
 
 elected directly and immediately by the people 
 (for we may disregard the solemn farce of the 
 Electoral College) as the Prime Minister is 
 indirectly and immediately, has when elected a 
 fixed term of office; he is not bound to retain the 
 confidence of the people's representatives — nay, 
 he may in safety for months outrage the senti- 
 ments of the majority of the people and of their 
 representatives as Andrew Johnson did — for since 
 the failure of the proceedings for impeachment 
 in the case of Andrew Johnson, no President need 
 fear that bogy ; it is as dead as the Royal Veto. 
 
 The House of Representatives and the House 
 of Commons have a close analogy to each other: 
 but the House of Representatives once elected 
 need not fear that any power can dissolve it — its 
 term is fixed and no Prime Minister or other 
 person can send its members back to their con- 
 stituents before the time irrevocably determined. 
 
 In a word, there is no way of taking the opinion 
 of the people on any question. 
 
 In the second House, the American Senator is 
 elected, the Canadian appointed by the existing 
 Government; the former for a fixed term of years 
 after which he must submit his record to his 
 constituents, the latter for life, irremovable so 
 long as he keeps solvent and innocent of crime 
 and is able once in two years to attend his place
 
 124 CONSTITUTION OF CANADA 
 
 in Parliament — none in either Senate, however, 
 transmitting his seat and title to a descendant. 
 
 In legislation the great and overshadowing 
 difference between the United States and Canada 
 consists in the written Constitution of the former 
 limiting and defining legislative powers — i.e., in 
 what are called Constitutional Limitations. 
 
 "Littera scripta manet": the American may 
 say, "I stand upon the letter of the Constitution : 
 let the heathen rage and the people imagine a vain 
 thing.'" 
 
 And does all this not show that the Fathers of 
 the Union had not confidence in the wisdom and 
 justice of the people — the electorate? They were 
 not content to leave to the existing or to future 
 generations the power to act contrary to what 
 they, these fathers, thought just and right. If 
 it was not "No doubt but ye are the people and 
 wisdom shall die with you," was it not perilously 
 near to it.^* The result is that the people of the 
 United States of America are governed, in part 
 indeed, by the Legislatures elected by themselves, 
 but in no small measure by the hand and voice of 
 the dead.^ 
 
 This is the essence of what is so often made 
 a boast, namely, that its government is a govern- 
 ment of law and not of men. Wherever there is 
 a written Constitution limiting the powers of
 
 A COMPARATIVE VIEW, 125 
 
 legislative and executive bodies, there must of 
 necessity be a judicial body to interpret the 
 meaning of the Constitution; there must of neces- 
 sity be a tribunal to determine the meaning of the 
 document in case of dispute. That tribunal could 
 not well be the Legislature or the Executive itself, 
 but it must be a separate tribunal and can only 
 be a court. The absence of such a tribunal means 
 anarchy, the decision as to the limits of its own 
 power under a written Constitution by Legislature 
 or Executive means tyranny — neither of which 
 the Anglo-Saxon can bear. 
 
 I shall now give a few examples to shew how in 
 practice the written Constitutions in the United 
 States have hampered the free action of legis- 
 lation, with illustrations from our Canadian legis- 
 lation. 
 
 The Federal Constitution provides that no 
 State shall pass any law impairing the obligation 
 of contracts — this provision has had far-reaching 
 effects. A charter granted for a college (e.g.) is 
 considered a contract. For example, in 1769 the 
 King, George III, granted to the Trustees of 
 Dartmouth College in New Hampshire a charter 
 of incorporation as a private charitable insti- 
 tution. After the Revolution and in 1816, the 
 Legislature of the State of New Hampshire passed 
 an act taking away from the trustees the govern-
 
 126 CONSTITUTION OF CANADA 
 
 ment of this college and vesting it in the Executive 
 of the State — in other words, changing the college 
 from a private to a state institution. The act, 
 while continuing the trustees as a corporation as 
 Trustees of Dartmouth University, purported to 
 form a new body called a Board of Overseers, 
 of whom the President of the Senate and the 
 Speaker of the House of Representatives of 
 New Hampshire, the Governor and Lieutenant- 
 Governor of Vermont were ex-officio members — 
 and to this Board of Overseers was given the 
 power of confirming or vetoing the acts of the 
 trustees relating to the appointment and removal 
 of president, professors and permanent officers, 
 the determination of their salaries, the establish- 
 ment of professorships, the erection of new build- 
 ings, etc. The Legislature later on in the same 
 year passed another statute making it an offence 
 for any one to act as president, professor, etc., 
 except in conformity with the Act just named. 
 One Woodward had been secretary-treasurer of 
 the corporation before the passing of the Acts, 
 but he apparently took sides with the Legislature 
 (since he was removed by the Trustees of Dart- 
 mouth College before the last Act) and he was 
 reappointed by the Trustees of Dartmouth Uni- 
 versity organised under the new Acts. The old 
 board brought an action against him for taking
 
 A COMPARATIVE VIEW 127 
 
 possession of the books of their records. It will 
 be seen that the simple question was : Had the 
 new corporation of Trustees of Dartmouth Uni- 
 versity any power? That depended upon whether 
 the acts of the Legislature were valid. The 
 Supreme Court of New Hampshire decided that 
 the Legislature had not exceeded its authority, 
 and so dismissed the action: and an appeal was 
 taken to the Supreme Court of the United States. 
 The case for the old board was argued by the 
 celebrated Daniel Webster;^ and the Supreme 
 Court decided that the charter was a contract. 
 The Chief Justice, the well-known John Marshall, 
 says, "It can require no argument to prove that 
 the circumstances of this case constitute a con- 
 tract." Then the court proceeded to hold that 
 this charter was a contract of the kind protected 
 by the Constitution, and that the Legislature had 
 no right to change it in any way. 
 
 In Upper Canada, a Royal Charter was ob- 
 tained from George IV in 1827 for the University 
 of King's College at or near the town of York 
 (now Toronto). It contained provisions that the 
 Governor should be Chancellor, the Anglican 
 Bishop of Quebec should be Visitor and the Arch- 
 deacon of York should be President by virtue of 
 their offices, that all members of the Council should 
 be members of the Church of England and Ire-
 
 128 CONSTITUTION OF CANADA 
 
 land, and that students in divinity must take the 
 same oaths as were required at Oxford. The 
 Legislature of Upper Canada in 1837 took away 
 the visitorship from the Bishop, the presidency 
 from the Archdeacon and abolished all religious 
 tests whatsoever. 
 
 That, however, was nothing to what was done 
 twelve years later; in 1849, much of the charter 
 was repealed and amended, the whole constitution 
 was changed, the name became "The University 
 of Toronto," the Chancellor elective, and he was 
 not to be an ecclesiastic or minister of any faith.^° 
 The President was to be appointed by the Provin- 
 cial Administration, the Faculty of Divinity was 
 abolished, a Senate formed, and the property of 
 the University vested in a new board. No doubt 
 King's College was a small college and had those 
 who loved her, but no dramatic eloquence even of 
 a Daniel Webster would have induced a Canadian 
 court to hold that the Legislature had exceeded 
 its powers in such legislation. Very many such 
 instances are to be found, for example in New 
 Brunswick, "the University of New Brunswick," 
 in Nova Scotia, and elsewhere. So in the Domin- 
 ion, but the other day, the relation of the Queen's 
 University to the Presbyterian Church was radi- 
 cally changed. 
 
 In the provision that no State may pass a law
 
 A COMPARATIVE VIEW 129 
 
 impairing the obligation of contracts, "contracts" 
 is considered a very extensive and comprehensive 
 term. When the State of Georgia had granted 
 certain land, this grant was called a "contract" 
 by the Supreme Court, and an Act of the State 
 Legislature annulling the grant upon the ex- 
 pressed ground of fraud was held to be uncon- 
 stitutional.^^ In Canada no one doubts that the 
 decision would have been the other way. In 1897 
 and 1899 certain water rights were given on and 
 near the Kaministiquia River to one J. ; these were 
 in 1902 taken away from him and restored in 
 1904 — all by the Province of Ontario. 
 
 After a State has agreed to grant lands to a 
 company upon conditions, and the grantee has 
 fulfilled the conditions of the grant and so earned 
 the lands, it is not competent to pass further 
 legislation that the lands shall not be conveyed 
 to the company except upon a further condition.^^ 
 In Ontario,^^ a certain company claimed to have 
 fulfilled all the conditions necessary under the 
 statute to entitle it to the grant of certain mineral 
 rights. The Government disputed the right of 
 the company, and made a sale of these rights to 
 another company. An action was brought, but 
 pending the action, legislation was passed declar- 
 ing the latter company entitled. The action came 
 on for trial before myself and I declined to pass
 
 130 CONSTITUTION OF CANADA 
 
 explicitly upon the question whether the require- 
 ments of the statute had been fulfilled by the 
 original company, as I considered this quite 
 immaterial. I held that even supposing the first- 
 named company owned the land, the Legislature 
 had the power to take it away and give it to 
 another. This view of the law was approved 
 by the Court of Appeal, and by the Judicial 
 Committee of the Privy Council. The following 
 language was used in my judgment: 
 
 "If it be that the plaintiffs acquired any 
 rights . . . the Legislature had the power to 
 take them away. The prohibition 'Thou shalt 
 not steal' has no legal force upon the sovereign 
 body." 
 
 This decision made some commotion, and it was 
 attacked by some who should have known better. 
 They based their attack chiefly on the provisions 
 of Magna Charta, not knowing or not appre- 
 ciating that a British Legislature has the power 
 to repeal even Magna Charta so far as it affects 
 the territory subject to such Legislature; and, 
 indeed, most of Magna Charta is repealed in 
 Ontario.^* 
 
 An agreement by a State Legislature to bind 
 its own hands by a grant so as to preclude it from 
 exercising its sovereignty in that regard in the 
 future has been held by the Supreme Court to be
 
 A COMPARATIVE VIEW 131 
 
 valid in certain cases of taxation and exclusive 
 privileges. Whether the police power can be thus 
 alienated is a different and a difficult question. 
 But in Canada, "the Legislature has no power to 
 control by anticipation the actions of any future 
 Legislature or of itself."^^ 
 
 I have already indicated the powers of a Cana- 
 dian Legislature in respect of private property. 
 It may be said broadly that a Provincial Parlia- 
 ment has the power to say that Blackacre, now 
 the property of A, shall hereafter be the property 
 of B — and so it will be — and that without the 
 necessity of making compensation. The whole 
 learning as to Eminent Domain is of no interest 
 in Canada. The Legislature may, indeed, direct 
 compensation to be paid; but that is in no sense 
 necessary. 
 
 In many jurisdictions, e.g.. New York, Michi- 
 gan, Alabama, it has been considered that the 
 State cannot authorise owners of mill-privileges 
 to expropriate the land above in order to increase 
 the head. In Ontario, we have long had such 
 legislation, and no one has doubted its validity. 
 Compensation is, indeed, directed by the Act to 
 be paid: but that is not at all necessary for the 
 validity of the statute. 
 
 A statute of New York authorised any person 
 to take into his custody any animal trespassing
 
 132 CONSTITUTION OF CANADA 
 
 upon his lands and to give notice to the justice or 
 a commissioner of highways of the town, who 
 should proceed to sell the animal after posting 
 notices. This was held invalid in the Courts .^^ 
 In Ontario^^ any one may distrain a trespassing 
 animal on his land. If this animal be a horse, 
 cow, pig, etc., he may either take it to the 
 public pound or retain it, giving notice to the 
 clerk of the municipality. After certain notices, 
 the animal may be sold if not redeemed or 
 replevined. 
 
 The State Legislature cannot authorise the 
 compulsory extinguishment of ground rents on 
 payment of a sum in gross.^^ But in Prince 
 Edward Island, lands which had been in the 
 possession and ownership of "Proprietors" and 
 their predecessors in title for many years were 
 taken from them by the Act of 1874! upon pay- 
 ment into the Treasury by the Government of a 
 lump sum, determined by commissioners. This, 
 indeed, is not unlike "eminent domain," since the 
 act is passed for "the contentment and happiness 
 of the people," and there was "no reasonable hope 
 of" the Proprietors "voluntarily selling their 
 Township lands to the Government at moderate 
 prices." 
 
 In Quebec, as we have seen, the land was at first 
 held in seigniority, the seignior (generally a
 
 A COMPARATIVE VIEW 133 
 
 noble) had under him the censitaires or tenants, 
 "habitans" they called themselves, who were bound 
 to render certain services, pay certain rents, etc. 
 
 In 1854, the united Province of Canada directed 
 the value of all these rights to the seignior to be 
 determined by commissioners appointed by the 
 Governor, and upon their report being filed, and 
 notice thereof published in the Official Gazette, the 
 habitant was relieved of all duties, etc., except 
 the fixed yearly rent, and thereafter held his land 
 in franc-aleu roturier — at his option he might pay 
 a lump sum once for all. 
 
 In this instance all the feudal duties were 
 turned into a money payment — yearly, indeed, 
 unless the tenant paid a lump sum. No one 
 doubts that when the Legislature said that a lump 
 sum might be paid instead of the rente constituee, 
 it was perfectly valid legislation. 
 
 So at Westminster, in the Imperial Act of 1869, 
 by which the Irish Church was disestablished, 
 there was a provision taking away all right of 
 advowson or power of appointment to a church. 
 Such a right becomes effective only at certain — 
 or rather uncertain — intervals ; but the Parlia- 
 ment took it away entirely and directed the former 
 owner if he applied for compensation within 
 three years to be paid a lump sum fixed by 
 commissioners.
 
 134 CONSTITUTION OF CANADA 
 
 In the United States it is said the Legislature 
 cannot validate an invalid trust or will,^° or give 
 land absolutely to one who, under a will, received 
 it under a restraint against alienation.^^ In 
 Ontario Mr. Goodhue left a perfectly valid will, 
 the residuary estate to accumulate during the 
 lifetime of his widow; and he directed that if any 
 of his children died during the lifetime of the 
 widow, their children should take their parents' 
 share. This did not suit the children of the 
 decedent: they wanted their share at once and 
 they executed a deed whereby each of them was' 
 to have his share at once — in other words, they 
 tried to take away the possibility which the will 
 created in favour of grandchildren. The Legis- 
 lature in 1871 passed an Act declaring the deed 
 valid; and the court was forced to uphold the 
 transaction.^^ The court did not doubt the power 
 of the Legislature to pass statutes wherein "from 
 oversight or any other cause provisions should be 
 inserted of an o.bjectionable character, such as the 
 deprivation of innocent parties of actual or pos- 
 sible interest by retroactive legislation." 
 
 Drainage of agricultural lands across the lands 
 of others is a taking of private property for 
 private use and in violation of the Fourteenth 
 Amendment.^^ We have a whole series of acts
 
 A COMPARATIVE VIEW 135 
 
 allowing this very thing, and no Fourteenth 
 Amendment stands in the way. 
 
 Not far removed from the right of property 
 comes the right to bring an action. It is said 
 that Congress has no power to protect parties 
 assuming to act under the authority of the central 
 government during the Civil War by depriving 
 persons who had been illegally arrested of all 
 redress in the courts."* The Act of Congress 
 providing "that any order of the President or 
 under his authority, made at any time during the 
 present rebellion, shall be a defence in all courts 
 to any action or prosecution pending, or to com- 
 mence for any search, seizure, arrest, or imprison- 
 ment, made, done or committed . . ." was, ac- 
 cordingly, held to be invalid. 
 
 In Canada we have had statutes of indemnity; 
 e.g., in 1838, after the "Rebellion," an Act was 
 passed"^ which recited that before and during the 
 "insurrection" it became necessary for Justices 
 of the Peace, officers of the militia and others in 
 authority in the Province, and also for loyal 
 subjects, to apprehend persons charged or sus- 
 pected of joining in the insurrection. The Act 
 then provided that all proceedings brought for 
 such acts should be void, and the persons who 
 had committed them were indemnified; all such 
 proceedings were to be stayed, and if the plaintiffs
 
 136 CONSTITUTION OF CANADA 
 
 went on they should be liable for double costs. 
 No one had the slightest idea that this Act was 
 not perfectly valid. 
 
 So in Ireland, a similar Act was passed after 
 the Rebellion of 1798; and also in Cape Colony 
 in 1836, 1847 and 1853; in Ceylon in 1848; in 
 St. Vincent in 1862, and in New Zealand in 1865 
 and 1867. In Jamaica after the Rebellion of 
 1865, the Legislature passed an Act of Indemnity 
 which had the effect of preventing the prosecution 
 of actions against Governor Eyre. 
 
 It is, indeed, said that the people of a State, 
 by amendment of their Constitution, may validly 
 take away rights of action and other rights as it 
 is considered that they are not thereby imposing 
 a punishment or impairing the obligation of a 
 contract. This was done by the State of Mis- 
 souri and others ; all right of action for anything 
 done during the war by Federal or State troops 
 was taken away.^^ 
 
 Some of the differences between the two coun- 
 tries depend upon a principle to which the courts 
 in the United States pay much respect — the 
 principle of equal rights. One judge exclaims, 
 "Can it be supposed for a moment that if the 
 Legislature should pass a general law and add a 
 section by way of proviso that it should never 
 be construed to have any operation or effect upon
 
 A COMPARATIVE VIEW 137 
 
 the . . . rights, etc., of A. L. or J. G., such a 
 provision would receive the sanction or even the 
 countenance of a court of law?""^ 
 
 The Dominion Act of 1903,"^ gives jurisdiction 
 to the Exchequer Court of Canada to order the 
 sale of any railway at the instance of the Minister 
 of Railways or of any creditor, to appoint a 
 receiver, etc. ; but "Sec. 8 of this Act shall not 
 apply to or authorize proceedings against the 
 C. O. Railway . . ." 
 
 While in cases of succession duties an arbitrary 
 statutory exemption is sustainable,'^ yet if such 
 an arbitrary exemption is applied only to estates 
 lower in value while those which are larger have 
 no exemption at all, this is in some States void 
 and invalidates the whole statute,^" — but this 
 seems to be doubted in other courts : Tennessee 
 and Massachusetts.^^ In Ontario, all estates 
 under ten thousand dollars are absolutely exempt, 
 as are all passing to certain relatives under one 
 hundred thousand dollars; and the larger ones 
 have no exemption. 
 
 A statute of a State providing for service upon 
 the agent of a non-resident doing business in the 
 State has been held to be void.^" In Ontario, 
 every non-provincial company before procuring 
 a license, must have an agent within Ontario upon 
 whom service may be made: and every person who
 
 138 CONSTITUTION OF CANADA 
 
 within Ontario transacts or carries on any of the 
 business or any business for any corporation 
 whose chief place of business is without Ontario, 
 shall for the purpose of being served with "writ 
 of summons" be deemed the agent thereof. 
 
 A statute attempting to restrict the right of 
 banking to corporations is held in the United 
 States to be bad,^^ although apparently the re- 
 striction is good if the business be insurance, at 
 least in Pennsylvania.^* By a Dominion Act^^ it 
 is provided that every one who uses or assumes the 
 title of "bank," "banking company," "banking 
 house," "banking association," or "banking insti- 
 tution" without being authorised to do so is 
 guilty of an offence rendering him liable to a fine 
 of one thousand dollars, or imprisonment for five 
 years, or both; and only incorporated companies 
 are eligible for authorisation. 
 
 In the United States, it seems that an Act 
 requiring persons paying less than twenty-five 
 dollars in taxes to pay a licence fee will be held 
 bad,^® and a regulation limiting to transients only 
 requirement of a licence is equally obnoxious to 
 equality.®^ But such regulations are of daily 
 occurrence in Canada. 
 
 An Act providing for raising money to pay 
 bounties to private producers of beet sugar is 
 invalid in the United States.^® We have paid
 
 A COMPARATIVE VIEW 139 
 
 bounties to private producers of steel, pig-iron, 
 etc., and bounties to private producers of beet 
 sugar are not unknown. At the session of 1916, 
 a bounty was voted for the production of zinc. 
 
 No city, it is said in the United States, can be 
 allowed to raise taxes with which to aid manu- 
 facturing establishments.^^ We do it every day 
 and in most, if not all, of the cities and in many 
 of the towns and even the villages of Ontario. 
 
 In the United States, it is decided that taxes 
 must be for a public purpose and while the sup- 
 port of a State university is a public purpose, the 
 creation of free scholarships and allowances to 
 needy students is not, even though these should 
 be granted after public and competitive exami- 
 nation.*° We would have no difficulty in such a 
 case. 
 
 In Illinois and New Hampshire it seems that 
 owners of property cannot be compelled to keep 
 the sidewalk opposite their property clear of 
 snow.*^ But in Toronto many a citizen has found 
 his way to the police court because he has 
 neglected to obey an ordinance to that effect. 
 
 A railroad apparently cannot, with you, be 
 made liable for live-stock killed by it, in the 
 absence of negligence on its part.*" By our Rail- 
 way Act when any stock at large, whether upon 
 the highway or not, gets upon the property of
 
 140 CONSTITUTION OF CANADA 
 
 the railway and is killed or injured by a train, 
 the railway must pay unless it prove that the 
 stock got at large through the negligence of the 
 owner; and the company must pay for damage 
 to crops, etc., caused by fire, negligence or no 
 negligence. Not wholly dissimilar legislation has 
 been passed in several States, and apparently held 
 good.*^ 
 
 Some differences depend upon the hypothesis 
 that the Legislature is an agent, delegatus: and 
 of course, Bentham or no Bentham, delegatus non 
 potest delegare. For example, a State Legisla- 
 ture cannot authorise a board of health to make 
 general rules ; nor can it leave to an official finally 
 to determine what shall be done to make factories 
 and workshops sanitary, or the extent of expro- 
 priation for waterworks.** 
 
 In the Canadian "constitution," Parliament 
 and Legislatures are not considered "delegatus" 
 at all — not delegates even of the Imperial Par- 
 liament at Westminster, from whose statute the 
 Canadian Legislative bodies derive their powers. 
 The highest court in the Empire has said, "They 
 are in no sense delegates of or acting under any 
 mandate from the Imperial Parliament . . . the 
 Provincial Legislature having . . . the authority 
 to impose imprisonment with or without hard 
 labour, had also power to delegate similar
 
 A COMPARATIVE VIEW 141 
 
 authority to the body which it created, called the 
 License Commissioners. . . ."*^ "It was argued 
 at the bar that a Legislature committing impor- 
 tant regulations to agents and delegates, effaces 
 itself. That is not so. It retains its powers 
 intact, and can, whenever it pleases, destroy the 
 agency it has created and set up another, or take 
 the matter into its own hands. How far it shall 
 seek the aid of subordinate agencies, and how 
 long it shall continue them, are matters for each 
 Legislature and not for courts of law to deter- 
 mine." In fact, it may be said generally that 
 anything a Legislature can do itself, it can depute 
 to another subordinate body to do. I conse- 
 quently do not give particular instances or 
 further pursue this subject. 
 
 Where courts have given an interpretation to 
 the words of a statute, it is not open to the State 
 Legislature to put another construction upon 
 these words so as to have a retroactive effect.*® 
 No such limitation of the power of Parliament 
 or Legislature is thought of in Canada. Moreover 
 there are many statutes (e.g., in insurance) which 
 are expressly made applicable not only to future 
 but also to existing contracts. 
 
 The Legislatures in the United States cannot 
 validly provide that cases pending in the Courts 
 under an existing law shall be dismissed.*^ In
 
 142 CONSTITUTION OF CANADA 
 
 1909, the Legislature of the Province of Ontario 
 passed a statute*^ which provided that every 
 action theretofore brought wherein the validity 
 of a certain contract or any by-law passed or 
 purporting to be passed, authorising its execution 
 by a municipal corporation, was attacked, should 
 be "forever stayed." One of such actions came 
 on for trial before me — the evidence had been 
 taken before the passing of the Act but decision 
 not yet given when the Act was passed. I said:*® 
 
 This action it is plain comes within the letter as 
 well as the spirit of this Act. The Legislature has 
 said that this action shall be stayed. My duty is 
 "loyally to obey the order of the Legislature/' the 
 action is accordingly stayed. 
 
 While the wording of the statute is that the action 
 shall be "forever stayed," the Legislature has no 
 power to control by anticipation the actions of any 
 future Legislature or of itself; it may be that 
 this legislation may be repealed . . . the result is 
 that the stay ordered by the statute has the effect of 
 causing the Court to retain the action with no pro- 
 ceedings to be taken therein unless and until the 
 legislation is in some way got rid of. 
 
 This decision was affirmed on appeal, an appeal 
 hopeless from the very first.^° 
 
 An order to State officers not to engage in 
 politics and not to make public speeches is void.^^
 
 A COMPARATIVE VIEW 143 
 
 Our Canadian practice is to continue a man in 
 public office for life, but if he engages in politics 
 or makes public speeches, he is dismissed, at least 
 when the other party come into power — and no 
 one doubts that such an order as has been held 
 void in the United States would be perfectly valid 
 with us. 
 
 Then as to the Dominion and Provincial Courts. 
 The construction put upon the statutes of a State 
 by the State Courts is generally followed by the 
 Supreme Court of the United States. The 
 Supreme Court of Canada does not consider itself 
 at all bound by the Provincial Courts. In a case 
 tried by myself in which I gave judgment for the 
 plaintiff, the whole question was one of inter- 
 pretation of an Ontario statute — the Court of 
 Appeal for Ontario sustained my judgment. In 
 the Supreme Court, the two judges who had come 
 from Ontario agreed in that interpretation, but 
 three judges — one from Quebec, one from Prince 
 Edward Island and one from British Columbia — 
 took another view, and the appeal was allowed. 
 The Judicial Committee, indeed, restored the 
 original judgment. ^^ 
 
 But I think I have given sufficient instances 
 now to illustrate the radical difference in many 
 respects of the two Constitutions. 
 
 1. In the United States the President and the
 
 144 CONSTITUTION OF CANADA 
 
 Governors of the States (speaking generally) 
 have as much power as George III, and in some 
 respects more; the Governor-General and the 
 Lieutenant-Governors are like George V. 
 
 2. Times and seasons are set in the United 
 States for change of legislatures, none in Canada. 
 
 3. The Government of the United States can 
 claim no powers which are not granted by the 
 Constitution — it is a government of enumerated 
 powers: the Dominion of Canada has all the 
 powers not granted to the Provinces. 
 
 4. The Constitution of the United States 
 contains a hard and fast standard set by people 
 of one generation for their successors : that of 
 Canada may be changed in a day. 
 
 5. In the United States 
 
 The Moving Finger writes, and, having writ 
 Moves on: nor all your Piety nor Wit 
 Shall lure it back to cancel half a line, 
 Nor all your tears wash out a word of it. 
 
 Perhaps in University circles you would prefer 
 the Latin version — here it is : 
 
 It digitus, cerae scribuntur, scriptaque durat 
 littera: tu sapiens sis licet atque pius 
 "dimidium dele" frustra obtestabere "versum," 
 non fiet lacrimis ulla litura tuis.^^
 
 A COMPARATIVE VIEW 145 
 
 No interpretation by the courts of the meaning 
 of the words of the statutes, can the Legislature 
 correct: no contract created by legislation, how- 
 ever unwise, can be cancelled: no grant, however 
 improvident, can be recalled: no action based 
 upon existing law can be stayed or dismissed: no 
 gain, however ill-gotten, can be taken away from 
 one who obtained it by legal means however scaly : 
 no college can be brought under such governance 
 as the whole State may desire and perhaps need, 
 if it can appeal to some old charter or grant.^* 
 
 In the United States the courts are supreme: 
 in Canada, the people through their representa- 
 tives; in the one country a few men say to the 
 legislating bodies, "Thus far shall thou go and 
 no further," in the other the legislating bodies say 
 to the courts, "Thus far and thus shalt thou go 
 and no further or otherwise." 
 
 In the United States, half a dozen men sitting 
 up in a quiet chamber can paralyse the activity 
 of a Senate and House, may say that a measure 
 imperatively called for in the public interests 
 cannot be validly enacted: and the legislators, 
 the people, are helpless — that is called Republi- 
 canism, democratic government ; and there is 
 searching of soul and shaking of heads, when any 
 one suggests that the people be asked if that little 
 coterie have correctly interpreted the popular
 
 146 CONSTITUTION OF CANADA 
 
 will formerly and formally expressed in a State 
 Constitution. In Canada should the court fail to 
 apprehend the real intention of an enactment, any 
 government which can command the support of 
 the people can at once correct the error. 
 
 Paley, when speaking of a view held by some 
 writers concerning the Constitution of England, 
 says : "These points are wont to be approached 
 with a kind of awe: they are represented to the 
 mind as principles of the constitution, settled by 
 our ancestors, and being settled, to be no more 
 committed to innovation or debate, as foundations 
 never to be stirred, as the terms and conditions 
 of the social compact to which every citizen of the 
 State has engaged his fidelity by virtue of a 
 promise which he cannot now recall." Is not that 
 the point of view, the feeling of the American? 
 Paley adds, "Such reasons have no place in our 
 system." 
 
 The framers of the Constitution of the United 
 States have used every endeavour to ward off 
 what they consider the worst of all governments, 
 an unbalanced democracy which is supposed to be 
 necessarily pregnant with a democratical tyranny 
 (I use the words of Erskine) thinking (to use the 
 words of Locke) "that the people being ignorant 
 and always discontented, to lay the foundation of 
 government in the unsteady opinion and uncertain
 
 A COMPARATIVE VIEW 147 
 
 humour of the people, is to expose it to certain 
 ruin." It is in the power of the people to change 
 the Constitution indeed, but not at once — and the 
 "sober second thought" is what is so often spoken 
 of and so often appealed to. Is it always certain 
 that the first thought is wrong: and the second 
 thought right? 
 
 With Burke I say "If you ask me what a free 
 government is, I answer, That it is what the 
 people think so, and that they and not I are the 
 natural, lawful and competent judges of this 
 matter." And so I leave it. 
 
 No doubt some citizens of this Republic will 
 say : What a barbarous country is Canada ! the 
 courts are not secure in their jurisdiction, the 
 interpretation put upon statutes by the court 
 may be reversed by the Legislature, any man may 
 be deprived of his property without due course 
 of law — why, even a legislator after he has been 
 elected does not know how long he may continue 
 such. Surely property must be insecure, enter- 
 prise and industry at a discount, the courts an 
 object of contempt, the Government an object of 
 awe not unmixed with terror! What a country 
 for a white man to live in ! 
 
 So a Canadian who did not happen to know 
 better might exclaim. Why, what's the use of a 
 Senate and House of Representatives or House
 
 148 CONSTITUTION OF CANADA 
 
 of Assembly, when their hands are tied by the 
 letter which killeth, when they cannot even "boss" 
 a court? What kind of a country is it where no 
 matter how offensive and discreditable a govern- 
 ment may be, you cannot get rid of it till a time 
 fixed beyond control? What a paper-governed, 
 court-ridden country ! 
 
 And yet, have we not here an illustration of 
 the saying, "It is not so much the form of a con- 
 stitution as the spirit in which government is 
 carried on, not so much the law as the men who 
 administer it, which count"? 
 
 In your land as in mine the Government and 
 legislators respond pretty well to public senti- 
 ment — a little more quickly, a little more slowly — 
 both lands get the government they deserve. At 
 odd times, the courts will with you check for a 
 while useful legislation, but it gets enacted at last 
 some way or another. A lawyer trained in the 
 interpretation of Constitutions, the "Philadelphia 
 lawyer" of proverbial note, can see much differ- 
 ence between "tweedledum and tweedledee"; and 
 a method can always be found, without giving 
 the court or the Constitution too cruel a jolt, for 
 allowing to the people what they really demand 
 and insist upon. 
 
 In Canada, nobody is at all afraid that his 
 property will be taken from him; it never is, in
 
 A COMPARATIVE VIEW 149 
 
 the ordinary case. Our people are honest as 
 peoples go, and would not for a moment support 
 a government which did actually steal ; a new 
 government would be voted into power and the 
 wrong righted. We will not submit to have our 
 great public works delayed by cranks or the 
 litigious, but even a crank or litigious person 
 must be paid a full price for his property; our 
 courts I venture to think are as much respected — 
 (excluding myself) are as worthy of respect — 
 as those of any country in the world; many of 
 our best men, men of high type, seek election to 
 the House of Commons and the Legislatures; and 
 if any Government in the United States could be 
 treated to more railing accusations and with more 
 contempt than Canadian Governments are by their 
 political opponents, I should marvel at it. An 
 American feels himself at home at once in Canada, 
 a Canadian crossing the border does not feel that 
 he is entering a foreign or a strange land ; neither 
 can notice any difference in the law any more 
 than in the language or in the habits of the people. 
 Once he escapes the custom-house either feels him- 
 self a native — unless he is a fool either by nature 
 or through misplaced or spurious patriotism. 
 
 Indeed, we are in all but the accident of political 
 allegiance, one people: we have lived together in 
 peace with an international boundary of thousands
 
 150 CONSTITUTION OF CANADA 
 
 of miles, for more than a century (may that peace 
 be eternal), our aims are the same, justice to all 
 under the law, good will to all men, peace and 
 righteousness. With these aims in common, we 
 are working and shall work out our destiny side 
 by side and in much the same way, an example 
 and a blessing to humanity.
 
 NOTES TO LECTURE IV 
 
 1 It has, indeed, been more than suggested that the 
 powers of the Governor-General in Canada are in some 
 cases in excess of the powers of His Majesty at West- 
 minster — the matter is of no importance but is largely 
 academic. 
 
 In one particular the Governor-General is at a dis- 
 advantage — he cannot confer knighthoods, etc.; he can only 
 recommend the Imperial authorities to have the honour 
 conferred. The constitutional position of the Governor- 
 General in recommending for such honours does not seem 
 well determined (the Cabinet has been known to disclaim 
 responsibility for a recommendation), but an appointment 
 distasteful to the Cabinet would scarcely be made, while 
 it is probable that the Governor-General would not refuse 
 to recommend for such an honour one whom he was asked 
 by the Prime Minister to recommend. 
 
 Knighthoods may, perhaps, be compared to University 
 Honorary Degrees — if the President recommends any one 
 for such a degree, it requires rather strong objection on 
 the part of the Senatus Academicus to prevent the recom- 
 mendation carrying; but he would not force a distasteful 
 candidate on the University. Knighthoods are State 
 Honorary Degrees, and carry with them the incidental 
 advantage that the wife acquires also a title for life; the 
 advantages (if any) are purely social and have no political 
 significance. 
 
 2 Representation by Population, "Rep. by Pop.," we have 
 seen had much to do with the creation of the Dominion. 
 See ante. Lecture I, p. 28. 
 
 3 The power to make the membership in the Second 
 Chamber hereditary, contained in the Canada Act of 1791,
 
 152 CONSTITUTION OF CANADA 
 
 31 George III, c. 31 (see ante, pp. 57, 77, 80, 81), was 
 never exercised, and the provision was not repeated in 
 subsequent Acts. 
 
 4 Even in dealings with the United States, we utilise 
 the British Ambassador at Washington; we conduct our 
 own negotiations, but aU treaties, etc., are in the name of 
 the King. 
 
 5 Of course she is interested in common with all the 
 rest of the Empire in aU that affects the Empire, but her 
 special concern is Canada. 
 
 6 The difference between King and President has been 
 tersely put thus — the King reigns but does not rule, the 
 President rules but does not reign. 
 
 7 Much of what follows is practically the same as what 
 will be found in my Address before the Iowa State Bar 
 Association at Cedar Rapids, Iowa, June 28, 1912. 
 
 8 Of course there is the power of adding Amendments 
 to the Constitution of the United States — and the State 
 Constitutions are amended from time to time, but that does 
 not affect the truth of what I have said. 
 
 9 At the banquet of the Illinois State Bar Association 
 at Chicago, May 28, 1914, Mr. Henry M. Bates, Dean of the 
 Faculty of Law in the State University of Michigan, said: 
 
 "Mr. Justice Riddell remarked that perhaps it would 
 have been as well if the Dartmouth College Case had been 
 decided contrary to the doctrine which we lawyers have 
 struggled with so long. I daresay he is quite right about 
 that, for it seems to be rather the consensus of opinion, 
 that Daniel Webster overdid the matter. Now I was some- 
 what surprised a while ago when a colleague in the depart- 
 ment of history in the University of Michigan informed 
 me that he had recently seen a letter written by Daniel 
 Webster before he undertook the case, a letter to the other 
 side asking to be retained on that side of the question." 
 Proceedings of the Illinois State Bar Association (1914<), 
 p. 300.
 
 NOTES TO LECTURE IV 153 
 
 What I had said was this: 
 
 "Not many years ago, in conversation with a retired 
 Justice of the Supreme Court of the United States, I ven- 
 tured to express the opinion that no harm would have 
 accrued if two-thirds of the cases in that court had been 
 decided the other way; he answered, 'If you leave out the 
 constitutional cases I should agree, and indeed I think you 
 might increase the percentage considerably.' The modesty 
 of one not thoroughly acquainted with the Constitutions of 
 the United States and of the States of the Union, one who 
 lives in a country without a Constitution (and likes it), 
 prevented me when speaking to an authority on these, from 
 questioning my friend's exception. I venture, however, here 
 to submit to you the consideration — What harm would have 
 been done if Daniel Webster had failed in the Dartmouth 
 College case? Your law would have been different, but 
 would it have been worse? Is your law better for the people 
 at large — and it is the people it must always have in its 
 care — than if it were as in England and Ontario? Are 
 even your corporations during the sittings of Congress and 
 Legislature any more comfortable than ours or those in 
 England? And after all, has. the effect been much more 
 than to oblige legislatures to introduce into private charters 
 a clause reserving the power to repeal or alter them — just 
 as it is said that practically the whole effect of the Statute 
 of Uses was to introduce five words into conveyances? 
 
 "Did the decisions, or either of them, on the constitu- 
 tionality of taxation of incomes do any good? and would 
 any harm have been done if they had been the other way? 
 No constitutional amendment would have been necessary, 
 but what of it? Would any one have been injured if he 
 were validly taxed under the Constitution as it stood, rather 
 than under an amendment? And does it feel any more 
 pleasant or hurt any less to pay an income tax than if it 
 had been levied under the document of the Fathers? 
 
 "Did the 'Dred Scott' decision settle anything? Perhaps
 
 154 CONSTITUTION OF CANADA 
 
 it hastened an inevitable conflict, but did it do more? Was 
 the conflict not inevitable under any decision, and was it 
 rendered less intense, costly, bloody, terrible, by the decision 
 actually given? 
 
 "Most hesitatingly and meekly (as becomes an outsider) 
 I venture to suggest to you that aU the decisions of the 
 Supreme Court are overborne in importance by the one 
 decision of the Senate of the United States when that body 
 refused to dismiss Andrew Johnson; for in all human 
 probability there will never be another impeachment of a 
 President of the United States for the reason that he does 
 not agree with the majority of the people or of Congress; 
 the President is as firmly seated on his throne and is as 
 truly a monarch for the term for which he is elected as 
 any king or emperor in Christendom. Benjamin Robbins 
 Curtis' success before that tribunal was of vastly more 
 significance and of vastly greater importance to the United 
 States and its people than would have been success in the 
 Supreme Court when he delivered the superb dissenting 
 judgment which wiU continue to be the greatest glory of 
 his name so long as Courts endure and lawyers reason. 
 
 "Does not the decision of the New York Court of 
 Impeachment that a Governor of that State, their two-year 
 King, must behave himself according to their views of 
 honesty and propriety before as well as after his inaugura- 
 tion, overtop in importance the decision of the unconsti- 
 tutionality of employers' liability legislation? Did this do 
 more than call for an amendment, inevitable if the people 
 wanted it? And what possible harm could have been done 
 had the decision been the other way?" Proceedings of the 
 Illinois State Bar Association (1914), pp. 357, 358. 
 
 10 The Church of England did not "lie down," but 
 formed "Trinity University," which but tlie other day sus- 
 pended its University powers and came into our University 
 of Toronto Federation as an Arts College. 
 
 11 Fletcher v. Peck, 6 Cranch 87, 136.
 
 NOTES TO LECTURE IV 155 
 
 12 De Groff v. St. Paul, etc., R. R. Co., 23 Minn. 144. 
 
 13 This case has already been mentioned ante, pp. 99, 112, 
 but is here repeated for convenience of reference, Florence 
 V. Cobalt (1908), 18 O. L. R. 275. 
 
 14 See Smith v. London (1909), 20 O. L. R. at pp. 140, 
 
 141. 
 
 15 See Smith v. London (1909), 20 O. L. R. at p. 142. 
 
 16 Rockwell V. Nearny, 35 N. Y. 307. 
 
 17 See the Revised Statutes of Ontario (1914), c. 247. 
 
 18 Palairet's Appeal, 67 Pa. St. 479. 
 i9Frewen v. Frewen (1875), 10 Ch. Ap. 610. 
 
 20 Hilliard v. Paul, 10 Pa. St. 326. 
 
 21 Spink V. Brown, 61 Pa. St. 327; Atter's Appeal, 67 
 Pa. St. 341. 
 
 22 Re Goodhue (1872), 19 Grant's Chancery Reports 
 (Ontario), 366. 
 
 Scarcely a session of the Ontario L,egislature passes 
 without legislation changing the dispositions made by will 
 or settlement. The proposed Statute is, in practice, sub- 
 mitted to two Judges of the Supreme Court of Ontario- 
 all Judges of the Supreme Court are paid $1,000 by the 
 Province per annum for this and other services not purely 
 judicial. The Judges take all the circumstances into con- 
 sideration and advise the Legislature upon the bill, its 
 fairness and justice. Without a favourable report, the bill 
 does not pass in Committee. 
 
 23 Re TuthiU, 163 N. Y, 133. 
 
 24 Griffin v. Wilcox, 21 Ind. 370: Johnson v. Jury, 44 
 lU. 142. 
 
 25 (1838) I Vic, c. 12 (U. C). 
 
 26 Dupman v. Shetel, 41 Mo. 1&4, 8 Wall. 645. 
 
 27 Lewis V. Webb, 3 Mo. 326. 
 
 28 (1903) 3 Edward VII, c. 21 (Dom.). 
 
 29 State V. FurneU, 39 L. R. A. 170. 
 
 30 State V. Ferris, 53 Ohio St. 34: 30 L. R. A. 218. 
 
 31 See 26 L. R. A. 259: 28 L. R. A. 178.
 
 156 CONSTITUTION OF CANADA 
 
 32 Calanne v. Grat, 92 N. W. 461. 
 
 33 State V. Scangal, 15 L. R. A. 4T4: 44 Am. St. 756. 
 
 34 Commonwealth v. Vrooman, 164 Pa. 306: 25 L. R. A. 
 250. 
 
 35 Revised Statutes of Canada (1906), c. 29, ss. 156, 157. 
 
 36 State V. Mitchell, 53 Atl. 887. 
 
 37McGrand v. Marion, 98 Ky. 673: Kinsely v. Cotterel, 
 196 Pa. St. 614. 
 
 38 Michigan Sugar Co. v. Auditor General, 124 Mich. 674. 
 
 39 Parkersburg v. Brown, 106 U. S. 687: Cole v. La 
 Grange, 113 U. S. 1. 
 
 40 State V. Switzer, 143 Md. 287. 
 
 41 Gridley v. Bloomington, 88 111. 554: State v. Jackman, 
 69 N. H. 318. See 44 Pa. 438. 
 
 42 Jensen v. Union Pacific R. Co., 21 Pac. Rep. 994. 
 
 43 Frazer v. Pere Marquette (1906), 180 L. R. 589, 
 
 44 State V. Burdge, 95 Wise. 390: Schaezlein v. Cahannis, 
 135 Cal. 466: Stearns v. Barre, 73 Vt. 281. 
 
 45 Hodge V. the Queen (1883), 9 A. C. at pp. 132, 133, 
 134. 
 
 46 Greenough v. Greenough, 11 Pa. St. 489. 
 
 47 State V. Adams, 44 Mo. 570. 
 
 48 (1909) 9 Edward VII, c. 19 (Ont.). 
 
 49 Smith V. London (1909), 20 O. L. R. at p. 142. 
 
 50 The boy in the story said, "What mother says is so, 
 is so if it isn't so"; we say, "What the Legislature says is 
 law, is law if it isn't law." 
 
 51 Lonthan v. Conn., 79 Va. 196. 
 
 52 Thompson v. Equity Insurance Company, (1910), 
 A. C. 592: (1909) 41 Can. Sup. Ct. Rep. 491. 
 
 53 Not my version — I wish I could claim it. 
 
 54 The late Prof. Hugo Miinsterberg, with that acute 
 appreciation of the psychology of others which character- 
 ised him, says of the American, "his democratic belief in 
 the power of black and white is unlimited." If that be so, 
 it will explain much which the Canadian is as yet unable
 
 NOTES TO LECTURE IV 157 
 
 to understand. ("The Americans," Williams & Norgate, 
 London, 1916, p. 377.) 
 
 I may be permitted to add here an extract from my 
 Address on "The Administration of Justice" before the 
 Illinois State Bar Association, 1914 (Proceedings, etc., pp. 
 8, 9): 
 
 "The Court is not (at least in my country) the master 
 of the people, but their servant, supported by them for their 
 own use and in their service; the judge is paid by the 
 people to do their work, and just as soon as the Court 
 is not worth, directly or indirectly, what it costs, it should 
 be abolished — directly in adjudicating upon the rights of 
 litigants, indirectly in preventing civil wrongs, turmoil, 
 assaults, thefts, trespasses, in the time-honored phrase 
 'maintaining the King's peace.' 
 
 "A Court does not exist for itself; it is not an end in 
 itself. A Court is an evil and the less it is called into play 
 the better for the community unless the evils arising from 
 this course will be greater than those arising from the more 
 frequent exercise of its functions. 
 
 "When Congress was proposing to give American coast- 
 ing vessels a privilege in the Panama Canal not granted to 
 other ships, and Britain made a protest, basing her claims 
 upon treaty (I am not going to discuss the rights and the 
 wrongs of the matter, the American people are guardians 
 of their own honour and need no advice or opinion from me 
 or any other non-American), my friend of the United States 
 Supreme Court said to me, 'I hope that question will go to 
 The Hague.' I answered, 'I hope not' ; and when he wonder- 
 ingly asked why, I said: 'I hope there wUl be no necessity, 
 I hope that the nations wiU settle the matter without liti- 
 gation; there is no saying what heart-burnings and discon- 
 tents may arise over the decision; we in Canada stiU 
 remember the Alaska Boundary Award, and no one has a 
 right to expect a repetition of the extraordinary good for- 
 tune which followed the Fishery Award at The Hague the
 
 168 CONSTITUTION OF CANADA 
 
 other day when each party claimed substantial victory. 
 A settlement between the parties themselves is infinitely 
 to be preferred to a reference or litigation of any kind.' 
 My friend was not wholly convinced; he was an American 
 and consequently thought that 'there is nothing like a 
 Court.' "
 
 INDEX
 
 INDEX 
 
 Abbott, Sir John J. C, Prime Minister of Canada, his 
 Administration, 116 
 
 Alberta, Province of, formed (1905), 38 
 
 Ashburton-Webster Treaty (1842), 28, 42 
 
 Assembly, House of, ordered by Instructions (1763), 9, 54, 
 55, 57, 58; not desired by French-Canadians, 11; why? 
 12; under Constitutional Act (1791), 19, 21, 22, 57, 58, 
 59, 60, 63; under Union Act (1840), 24, 63; under 
 B. N. A. Act, (Provincial House), 66, 67, 68, 70 
 
 Authorities on Canadian Constitution (Preface) 
 
 B 
 
 Banalites under French-Canadian Law, 6, 7 
 
 Banks and Banking, restricted in Canada, 138 
 
 Barclay, Hon. Thomas, British Commissioner on Maine 
 
 Boundary, 41 
 "Bastonais" (Bostonians, New Englanders), natural enemies 
 
 of the French-Canadians, 15 
 Blake, Hon. Edward, Leader of Opposition at Ottawa, 116; 
 
 do. at Toronto, 118; Prime Minister of Ontario, 118, 
 
 119; M. P. at Westminster, 118 
 Borden, Sir Robert Laird, Leader of Opposition at 
 
 Ottawa, 105; Prime Minister, 107, 114, 117 
 Bowell, Sir Mackenzie, Senator, 113; Prime Minister at 
 
 Ottawa, 116, 117 
 British Columbia, history of, 37, 38; joins Dominion (1871), 
 
 38
 
 162 INDEX 
 
 British North America Act (1867), a Canadian production, 
 
 120, 121; passed, 32, 65; provisions of, 65 sqq.; 
 
 amended, 66 
 Brown, Hon. George, Leader of Reform (Liberal or Grit) 
 
 Party, 49; urged "Rep. by Pop.," 29, 49; Coalition 
 
 with Macdonald, 29, 115 
 Burke, Edmund, on Free Government, 147 
 
 
 
 "Cabinet," what, 93 
 
 Cameron, Sir Matthew Crooks, Leader of Opposition at 
 
 Toronto, 118 
 Canada, conquest and cession of, 1; invasion by Arnold, 2; 
 condition before Conquest, 3; criminal law of, 4, 5; 
 Province of, formed by Union Act (1840), 24; 
 Dominion of, formed by B. N. A. Act (1867), 32, 65 
 Canada East (Lower Canada), formed in 1791, 19; popu- 
 lation in 1840, 25; in 1850, 28 
 Canada West (Upper Canada), formed in 1791, 19; first 
 Parliament (1792), 19; Executive Council, an oli- 
 garchy, 20; population in 1840, 25; in 1850, 28 
 Carleton, Sir Guy, Lord Dorchester, Governor of Canada, 
 
 2, 15, 46 
 Carleton, Thomas, Governor of New Brunswick, 35 
 Church of England to be established in Quebec, 56 
 Civil Law of Rome basis of French-Canadian Law, 9 
 Civil War in U. S. A., efiFect on Confederation, 30 
 Clarke, Sir Alured, Lieutenant-Governor of Quebec, 45 
 "Clergy Reserves" under Act of 1791, opposed by Fox, 18 
 Colonies, The Thirteen, rebellion, 2; desire to have Canada 
 join, 2; alarm at tolerance of Roman Catholicism, 15, 44 
 Commons, House of (Dominion), 66, Q9, 70; money bills, 71; 
 
 compared with House of Representatives, 123 
 Confederation, motion for in Canadian Parliament, 29; 
 coalition looking to, 29; Charlottetown Conference, 30; 
 Quebec Conference, 30; Civil War and "Trent aflfair,"
 
 INDEX 163 
 
 effect of, 30; Reciprocity Treaty, 31; approved by 
 Imperial Government, 31; by Canada, 31; by Nova 
 Scotia, 31; rejected and then approved by New Bruns- 
 wick, 31; Prince Edward Island rejects, 32; effected 
 by B. N. A. Act (1867), 32 
 
 Conference at Charlottetown (1864), 30; at Quebec (1864), 
 30 
 
 Congress, Continental, Address of to Canadians, 2, 15, 44; 
 to People of England, 44 
 
 "Constitution," what, in English usage, 52, 74, 90; in 
 American, 52, 53; in Canadian, 52, 53, 54, 74, 91 
 
 "Constitutional (or Canada) Act" (1791) passed, 18; pro- 
 visions of, 19 
 
 Contracts, inviolability of, 125-129, 152, 153 
 
 Corvee, in French Canada, 7 
 
 Council in French Canada, 5; under Royal Proclamation of 
 1763, 10, 11, 54; under Quebec Act (1774), 14, 16; 
 under Constitutional Act (1791), 59, 60, 61 
 
 Council, Executive, for Provinces of Dominion, 71 
 
 Council, Legislative, under Constitutional Act (1791), 19, 
 57; hereditary? 46, 57; under Union Act (1840), 24, 63; 
 contained French-Canadians, 26; elective in 1856, 63; 
 in Provinces of Dominion, 67, 68, 70, 103 
 
 Council, Privy, for Canada, 71; what, 93; does not sit, 
 93, 107 
 
 Courts, power of to declare legislation "unconstitutional," 
 100 sqq.; Dominion Courts not bound by Provincial 
 Courts, 143 
 
 D 
 
 Dartmouth College Case, 125, 126, 152, 153 
 Disallowance of Dominion Acts, 96, 97, 111; do. 
 
 of Provincial Acts, 97, 98, 100 
 Durham, Lord, Governor-General of Canada, 22 ; his Report, 
 23, 63; his character, 23; recommends Responsible 
 Government, 25; and Confederation of British North 
 American Colonies, 28, 29
 
 164 INDEX 
 
 E 
 
 "Eminent Domain," learning of, practically useless in 
 
 Canada, 131, 133 
 "Equal Rights" principle in U. S. Courts, 136, 137 
 "Equal Rights Party" in Canada, 105, 106 
 
 "Family Compact" in Upper Canada, what, 21 
 "Fourteenth Amendment," effect of in U. S., 134 
 Fox, Charles James, opposed Constitutional Act (1791), 18 
 French-Canadians, loyalty of in 1775-1776, 2 
 
 G 
 
 Gait, Sir Alexander Tulloch, moved in Canadian Assembly 
 
 for Commission on Confederation, 29 
 Gibbon, Edward, the historian, his conservatism, 48 
 Governor-General of Canada, 70; his powers, 72, 91, 93, 94, 
 
 121, 151 
 Governor (Lieutenant) of Province, 70; his powers, 72, 91, 
 
 94; responsible to Dominion Administration, 94, 107, 
 
 108 
 Graham, Hon. George, Leader of the Opposition in Ontario, 
 
 119 
 "Grangers" (Patrons of Industry), political party, 106, 107 
 
 H 
 
 "Habitans," what, 4 
 
 Hardy, Hon. Arthur Sturgis, Prime Minister of Ontario, 
 
 118, 119 
 Hearst, Sir William H., Prime Minister of Ontario, 119 
 Howland, Oliver, Leader of the Opposition in Ontario, 119
 
 INDEX 165 
 
 "Jesuits' Estate Act," see Equal Rights Party- 
 Judges, appointment of, 72 
 
 Jury System, disliked by French-Canadians, 12, 13; insisted 
 on by English, 13, 18; present practice in Ontario, 42 
 
 K 
 
 King's College, Toronto, Charter revoked, 127, 128 
 Knighthoods, 81; how granted, 151 
 
 Labrador, under care of Newfoundland, 38 
 
 Laurier, Sir Wilfrid, Leader of Opposition at Ottawa, 105, 
 
 116; Prime Minister of Canada, 114, 117 
 Law: civU law of French Canada based on Roman CivU 
 
 Law, 8, 9, 56 
 Criminal law of French Canada barbarous, 9; replaced by 
 
 English criminal law, 9, 56 
 "Leader of the Opposition," what, 92; how chosen, 92, 106, 
 
 115, 116, 117, 119 
 Legislative Power of Dominion, 84, 85, 98, 100, 111, 112, 
 
 113, 130-142; of Provinces, 85, 98, 99, 100, 112, 113, 
 
 130-142 
 Locke on Free Government, 146 
 Lymburner, Adam, represented the English settlers in 
 
 Quebec before House of Commons (1791), 18 
 
 M 
 
 Magna Charta, power of Dominion and Province to repeal, 
 
 130 
 Marter, Mr. G. S., Leader of the Opposition in Ontario, 
 
 119 
 Meredith, Sir William Ralph, Leader of the Opposition in 
 
 Ontario, 119
 
 166 INDEX 
 
 Minister, Prime (or Premier), what, 92, 93 
 
 "Ministry," what, 91, 92, 93, 94; actually rule, 91, 121; 
 
 collective responsibility, 96 
 Money bUls, originate in House of Commons, 71, 95, 96, 100 
 Mowat, Sir Oliver, Prime Minister of Ontario, 118, 119 
 Miinsterberg, Prof. Hugo, on Americans, 156 
 Murray, General James, Governor of Quebec, Instructions 
 
 to (1763), 54 
 
 Mc 
 
 Macaulay, Thomas Babington, Lord, mentioned, 43 
 Macaulay, Zachary, a petitioner against Quebec Act, 43 
 Macdonald, Sir John Alexander, opposed "Rep. by Pop.," 
 
 29; formed Coalition to effect Confederation, 29; his 
 
 Administrations, 115; death, 116 
 Macdonald, John Sandfield, Prime Minister of Ontario, 118 
 McKay, Hon. A. G., Leader of the Opposition in Ontario, 
 
 119 
 Mackenzie, Alexander, Leader of Opposition at Ottawa, 
 
 115; his Administration, 109, 110, 114 
 
 N 
 
 New Brunswick formed (1784), 35; part of Dominion 
 
 (1867), 36 
 Newfoundland declined to enter Dominion, 38, 39 
 Northwest Territories, how governed, 38, 68 
 Nova Scotia, settled by English, 32; first Council (1720), 
 
 33; first Assembly (1758), 34; part of Dominion 
 
 (1867), 32, 34 
 
 O 
 
 Oath of Supremacy waived for Roman Catholics, 16, 45, 56 
 Opposition, Leader of, what and how chosen, 91, 92, 106, 
 115, 116, 117, 119
 
 INDEX 167 
 
 Paley, William, on the Constitution of England, 146 
 
 Party System in full force in Canada, 91 
 
 Party, "Equal Rights," 105, 106 
 
 Party, "Grangers" (Patrons of Industry), 106, 107 
 
 "Patrons of Industry," see "Grangers," 106, 107 
 
 Pitt, WiUiam (Jr.), passed Constitutional Act (1791), 18 
 
 President of the United States, compared with King, 122, 
 
 144, 152; with the Governor-General of Canada, 122, 
 
 123, 144; Impeachment of, 123 
 Prince Edward Island, history of, 36, 37; incident in early 
 
 history, 49, 50; refused to join Dominion of Canada, 
 
 32; admitted (1873), 36 
 Provinces of Dominion of Canada, 32, 36, 37, 38 
 Provincial Legislatures, 66, 67, 68 
 
 Q 
 
 Quebec, conquest of (1759), turning point in American 
 history, 1, 8; siege of by Arnold, 2 
 "Government" of, formed by Royal Proclamation (1763), 
 
 9, 10; extent of "Government," 40 
 Province of, formed by B. N. A. Act (1867), 14 
 "Quebec Act" (1774), passed, 2, 13; contents of, 14; effect 
 
 of, 16 
 Queen's University, Kingston, Ontario, affected by legis- 
 lation of Dominion, 128 
 
 R 
 
 Railway, Intercolonial, desire for, a cause of union of 
 
 British N. A. Provinces, 28 
 Rebellion of 1837-1838, causes of, 21, 22, 62, 135 
 Religion of French-Canadians not interfered with, 8, 12, 
 14, 56; "idolatrous and bloody," 13; (see Roman Catho- 
 lics in Parliament, infra)
 
 168 INDEX 
 
 "Rep. by Pop.," what, and eflFect in inducing union of Brit- 
 ish N. A. Provinces, 28, 121, 151 
 
 Responsible Government, what, 61, 102; claimed in Canada, 
 20, 21, 22; granted, 24, 64; recommended by Lord 
 Durham, 25; claimed in Nova Scotia and obtained, 34; 
 in New Brunswick, 35; in Prince Edward Island, 37; 
 in British Columbia, 38, 39 
 
 Richelieu, Cardinal, introduces French Feudal System in 
 Canada (1627), 4 
 
 Roman Catholics in Parliament in Canada, 12, 18, 45; in 
 Nova Scotia, 34 
 
 Ross, Sir George W., Prime Minister of Ontario, 118, 119 
 
 RoweU, Newton W., Leader of Opposition in Ontario, 119 
 
 Royal Proclamation (1763), occasion and effect, 9, 10, 40; 
 annulled (1774), 14 
 
 RusseU, Lord John, Colonial Secretary, passes Union Act 
 (1840), 23 
 
 "Sarum, Old," before Reform Bill, 47, 48 
 
 Saskatchewan, Province of, formed (1905), 38 
 
 Schools, Denominational or Separate, protected by B. N. A. 
 
 Act (1867), 72, 117 
 Scott, W. H., Leader of the Opposition in Ontario, 119 
 Seigniorial Tenure described, 3-7; introduced into Canada 
 
 by Richelieu (1627), 4; abolished (1854), 4, 132, 133 
 Senate of Dominion of Canada, 66, 68, 69; how members 
 appointed in fact, 95; qualifications of members, 83, 
 83; increase of number, 109, 110; movement to abolish, 
 102, 103, 114; utility of, 102, 114; compared with House 
 of Lords, 123; with Senate of U. S., 123 
 Simcoe, Colonel John Graves, first Lieutenant-Governor of 
 Upper Canada, Address of, to the first Upper Canadian 
 ParUament (1792), 47 
 Smith, William, Chief Justice of Quebec, proposal of, to 
 unite British North America, 49
 
 INDEX 169 
 
 Southey, Robert, Poet Laureate, conservatism of, 48 
 Speaker of House of Assembly how chosen, 24, 38 
 
 of Legislative Council how chosen, 24, 58, 70 
 
 of House of Commons how chosen, 58 
 
 of Senate of Canada how chosen, 69 
 Stuart, Sir James, Bart., afterwards Chief Justice of 
 (Lower) Canada, drafts Union Act (1840), 23 
 
 Territories, Northwest, what and how governed, 38, 68 
 Thompson, Sir John Sparrow David, Prime Minister of 
 
 Canada, 116 
 Treaty of Paris (1763), provisions of, 9, 12 
 Definitive (1783), provisions of, 41 
 of Ghent (1814), provisions of, 41 
 Ashburton-Webster (1842), provisions of, 28, 42 
 "Trent Affair," effect of, on Confederation, 30 
 Tupper, Sir Charles, Bart., Prime Minister of Canada, 116, 
 117; defeated at Polls, 117 
 
 U 
 
 "United Empire Loyalists" in Western Canada, 17; chief 
 
 settlements, 45 
 Union Act of 1840, passed, 23; effect, 24 
 University of Toronto, chartered, 128 
 of New Bruns\vick, affected by Provincial legislation, 128 
 Queen's, Kingston, Ontario, affected by Dominion legis- 
 lation, 128 
 
 Vancouver Island (see British Columbia) 
 Van Ness, Cornelius P., U. S. Commissioner on Maine 
 Boundary, 41
 
 170 INDEX 
 
 W 
 
 Wark, Hon. David, centenarian Senator, 113 
 
 Washington, George, incident in life of, 50 
 
 Webster, Daniel, negotiated Treaty of 1842, 42; Dartmouth 
 CoUege Case, 127, 128, 152, 153 
 
 Whitney, Sir James PUny, Leader of Opposition in Ontario, 
 119; Prime Minister of Ontario, 119 
 
 Wills may be affected by Provincial legislation, 134 
 
 William, King of Netherlands, arbitrator on Maine Bound- 
 ary dispute (1827), his award unsatisfactory (1831), 41 
 
 Y 
 
 Yukon Territory, what, 38; how governed, 68
 
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