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 MANUAL OF THE 
 
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 THE UNIVERSITY 
 
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 A MANUAL 
 
 OF THK 
 
 CONSTITUTIONAL HISTORY OF CANADA 
 
 FROM THE EAllLIEST PERIOD TO 1901 
 
 INCLUDING THE BRITISH NORTH AMERICA ACT OF 1867, A DIGEST OF 
 
 JUDICIAL DECISIONS ON IMPORTANT QUESTIONS OF LEGISLATIVE 
 
 JURISDICTION, AND OBSERVATIONS ON THE WORKING 
 
 OF PARLIAMENTARY GOVERNMENT 
 
 BY 
 
 SIR J. a. BOURINOT, K.C.M.G., LL.D., D.C.L.; 
 
 AUTHOR OF " PARLIAMKNTAKV PROCEDURE IN CANADA," "HOW CANADA IS 
 GOVERNKD," "CANADA UNDER BKITIS}! RULE," AND OTHER 
 WORKS ON THE GOVERNMENT AND HISTORY 
 OF THE DOMINION 
 
 KEW EDITION, REVISED AND ENLARGED 
 
 TORONTO 
 THE COPP, CLARK COMPANY, LIMITED 
 
 1901
 
 Entered according to Act of the Parliament of Canada, by Sir John George Bourinot, in the 
 Office of the Minister of Agriculture, in the year one thousand nine hundred and one.
 
 Jl 
 
 15 
 
 1^0 I 
 
 PREFATORY NOTE. 
 
 The present edition of this book, first pubHshed in 1888, 
 has been thoroughly revised in order to make it as useful as 
 possible to those students in our universities and colleges who 
 are now required to consult it in their studies of our constitu- 
 tional history. I have completed to date the summary of 
 those judicial decisions which have so far laid down important 
 principles for the interpretation of a constitution which has 
 evoked much learned argument in our courts and legislatures. 
 In the performance of this task I have not attempted to 
 include any opinions or comments of my own, but have simply 
 condensed the essential points of each decision in the language 
 of the learned judges, as far as practicable, and left the student 
 to seek further elucidation in the works of such conscientious 
 commentators as Mr. Lefroy. I have also added a chapter on 
 the practical operation of the principles of parliamentar}'- 
 government in the Dominion, for the information of those 
 readers who have neither time nor opportunity to study the 
 elaborate treatises of Todd, May, and Anson. The text of the 
 British North America Act, and of the amending imperial 
 statutes, is given in full at the end of the book. A complete 
 list of the many authorities, cited in the text of this volume, 
 will also be found useful to students wdio wish to investigate 
 our constitutional histoiy in the most tliorough manner. , 
 
 JNO. GEO. BOUKINOT. 
 
 House of Commons, Ottawa. 
 iJoniinion Day, 1901. 
 
 1252338
 
 CONTENTS. 
 
 CHAPTER I. 
 
 A HISTORICAL REVIEW OF 
 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 I. Canada under the French Regime, p. 1. — II. Government from 1760 to 
 1774, p. 5.— III. Quebec Act, 1774, p. 9. — IV. Constitutional Act, 1791, 
 p. 13.— V. Union Act^ 1840, p. 24.— VI. Federal Union of the Provinces, 
 p. 37, British North America Act, 1867, p. 43. — VII. Constitution of the 
 General Government, p. 47. — VIII. Constitution of Parliament, p. 57. — 
 
 IX. Constitution of the Provincial Governments and Legislatures, p. 62. — 
 
 X. Organization of the Northwest Territory, p. 73. — XI. Boundary Ques- 
 tion, p. 77. — XII. Constitutional Provisions respecting Provinces, p. 79. 
 
 CHAPTER IL 
 
 A REVIEW OF QUESTION^ OF 
 LEGISLATIVE JURISDICTION. 
 
 I. Di.stribution of Legislative Powers, p. 80. — II. Decisions of the Privy 
 Council of England, and of the Courts of Canada, on Questions of Legislative 
 Jurisdiction : Controverted Elections, p. 85 ; Fire Insurance, p. 87 ; Tempo- 
 ralities Fund of tlie Presbyterian Church, p. 90 ; Sale, Manufacture, Pro- 
 hibition and Regulation of Intoxicating Liijuors, p. 92 ; Coiujx'tpncy of a 
 Provincial Legislature to License Brewers to Sell Liquors by the Wiiolesale, 
 p. 92 ; Canada Temperance Act, p. 94 ; Liquor Traffic in the Provinces, p. 97 ; 
 Prohibition of Sale of Lifjuors, p. 103 ; Fisjiciics, Hai-bours, and Navigable 
 Waters, p. 109; ]']scheats, ]>. 11."; Precious Metals Case, p. 118; Questions 
 respecting Indian Lands, ji. ll!t; Indian Claims Ca.se, p. 122; Taxes on 
 Incorporated Companies, p. 124 ; Eilueation, p. 125 ; Powers and Privileges 
 of the fiovcrnments and Legislatures of tiic Provinces, p. 127 ; Piivileges of 
 Provincial Legislatun'S, p. 130. — III. Rules of Construction and Constitu- 
 tional Privileges laid down by Courts, p. 133. — IV. Disallowance of 
 Provincial Acts, p. 142. — V. Position of the Judiciary, p. 140. 
 
 V
 
 VI CO.\TENTS. 
 
 CHAPTER III. 
 
 GENERAL OBSERVATIONS ON THE PRACTICAL OPERATION 
 OF PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 I. Prefatory, -p. 154. — II. Constitutional Relations between Great Britain and 
 Canada, p. 155. — III. The Written and Unwritten Law of the Constitution, 
 p. 159. — IV. Constitution of the Executive Government of the Dominion, 
 p. 162. — V. Formation of a Ministry, p. 165. — VI. Responsibility of Min- 
 isters for Administration and Legislation, p. 171. — VII. Orders-in-Council, 
 p. 181. — VIII. Procedure on Resignation of Ministers, p. 183. — IX. The 
 Law and Usage of Parliament, p. 186. Conclusion, p. 188.
 
 APPENDIX. 
 
 A. British North America Act, 1867 191 
 
 B. An Act Respecting the establishment of Provinces in the Dominion 
 
 of Canada (34-35 Vict., c. 28) 231 
 
 C. An Act to remove certain doubts with respect to the powers of the 
 
 Parliament of Canada under section 18 of the B. N. A. Act, 1867 
 (38-39 Vict., c. 38) 232 
 
 D. An Act respecting the representation in the Parliament of Canada of 
 
 Territories which, for the time being, form part of the Dominion of 
 Canada, but are not included in any Province (49-50 Vict., c. 35).. . . 234 
 
 vu
 
 LIST OF PRINCIPAL AUTHORITIES CITED IN THIS WORK. 
 
 Anson. — Law and Custom of the Constitution, 3d ed., by Sir W. R. Anson, 
 
 1897. 
 Bellefeuille, de.— Le Code Civil du Bas-Canada, 1889. 
 
 Blackmore. — Decisions of Speakers Denison, Brand and Peel, by Mr. Black- 
 more, of the South Australian Legislature, 7 vols., 1881-1895. 
 Blackstone. — Commentaries on tiie Laws of England, by Sir W. Blackstone. 
 Bourinot. — Federal Government in Canada, Johns Hopkins University Studies, 
 
 1889 ; Canadian Studies in Comparative Politics, Trans, of Roy. Soc. of 
 
 Can., 1890 ; Local Government in Canada, lb., 1886 ; Canada under British 
 
 Rule, 1900 ; How Canada is Governed, 1895. 
 Bourke. — Decisions of Mr. Speaker Lefevre, by'Mr. Bourke, 1857. 
 Bramwell — Proceedings on Bills in the House of Commons, by G. Bramwell, 
 
 1833. 
 Campbell. — History of Prince Edward Island, by D. Campbell. 
 Canadian Archives, by D. Br^'mner, 1884-1900. 
 Can. Hans. — Canadian Hansard, Commons, 1875-1901. 
 Can. Law J. — Canada Law Journal. 
 Can. L. T. — Canadian Law Times. 
 
 Can. Com. J. — Journals of tlie House of Commons of Canada, 1867-1901. 
 Can. Sp. D. — Decisions of Canadian Speakers, 1841-1900. 
 Can. Sess. P. — Canadian Sessional Papers, 1841-1900. 
 Can. Sup. Court R.— Reports of the Supreme Court of Canada. 
 Cartwright. — Cases decided on the B. N. A. Act, collected by Mr. Cartwright, 
 
 deputy attorney -general of Ontario, 5 vols., 1882-1896. 
 Cas.sels. — Practice of the Supreme Comt of Canada, by Robert Cassels, 1888. 
 Cav. Deb. — Debates, 1768-1770, by Sir H. Cavendish. Debates on the Quebec 
 
 Act, publisiied in 1839. 
 Christie. — History of Lower Canada, by R. Christie, 6 vols. 
 Colcliester. — Diary and Correspondence of Lord 'Colchester. 
 Col. OfT. List. — Colonial Ofhce List, pul)lished yearly. 
 Conf. Deb. — Confederation l^ebates, 1865. 
 Coke. — Institutes of the Laws of England, by Sir E. Coke. 
 Cons. Stat. — Consolidated Statutes of Canada, Upper Canada and Lower 
 
 Canada, 1859 and 1801 ; of New Brunswick, 1877. 
 Cooley. — A Treatise on the Constitutional Limitations which rest upon the 
 
 Legislative Power of the States of the American Union, by T. M. Cooley, 
 
 fjth cd., 1K90. 
 Cox, — The Institutions of the English Government, hy llomcrsham Cox. 
 
 ix
 
 X LIST OF A UTHOEITIES CITED. 
 
 Creasj\ — Imperial and Colonial Constitutions, by Sir E. Creas}\ 
 
 Gushing. — Law and Practice of Legislative Assemblies, by L. S. Gushing, 1856. 
 
 DeLolme. — The Constitution of England. 
 
 Dent. — Forty Years since the Union of 1841, by J. C. Dent, 2 vols. 
 
 D'Ewes. — Journals of Parliaments of Elizabeth, by Sir S. D'Ewes, 1682. 
 
 Dicey.— The Law of the Constitution, by A. V. Dicey, 3d ed., 1889. 
 
 Doutre. — Constitution of Canada, by Joseph Doutre, 1880. 
 
 Doutre et Lareau. — Histoire du droit Ganadien, by Doutre et Lareau. 
 
 Dwarris. — Dwarris on Statutes, 1848. 
 
 E. Com. J. — Journals of the English House of Commons. 
 
 Edits, Ordonnances Royaux et Declarations eoncernant le Canada, 3 vols., 
 
 1854-56, Quebec. 
 E. Hans. — Hansard's Parliamentary Debates, 3 series; vols. 1 to 21, of the 
 
 first series, were published as Cobbett's. 
 English Law Reports. — Douglass; Knapp ; Perry and Knapp ; Meeson and 
 Welsby ; Carrington and Kirwan ; Appeal Cases, Judicial Committee of 
 Privy Council (Apix Gas.); Lord Kenyon (Lord Ken.); Strange; Taunton 
 (Taunt.); Chitty ; Law Journals (L. J.); Wilson (Wils.); Russell and 
 Mylne (R. and ^L) ; Espinasse (Esp. ) ; East. 
 English Standing Orders, &c. (Eng. S. 0.) — 1. Of the Houses of Lords and 
 Commons relative to Private Bills, 1882. 2. Of the House of Lords except 
 as to Local and Personal Bills, 1889. 3. Of the House of Commons relating 
 to Public Business, 1707-1888. 4. Rules, Orders and Forms of Procedure, 
 9th ed., 1891, edited and enlarged by Sir R. F. D. Palgrave, Clerk of the 
 House of Commons. 
 Federalist. — A Commentary on the Constitution of the United States, by 
 
 Hamilton, Jay and Madison. 
 Garneau. ^Histoire du Canada, by F. X. Garneau, new French ed. in 4 vols. , 
 
 1882, and Bell's Translation, 2 vols. 
 Gemmill on Divorce. — The Practice of the Parliament of Canada upon Bills of 
 
 Divorce, etc., by J. A. Gemmill, 1889. 
 Graj'. — Confederation of Canada, by Hon. J. H. Gray. 
 Grey. — Colonial PoUcy of Lord John Russell's administration, by Earl Grey, 
 
 2 vols., 1853. 
 Grey. — Grey's Debates after the Restoration, 10 vols. 
 Hale on P. — Listitution, Power and Jurisdiction of Parliament, by Lord Chief 
 
 Justice Hale. 
 Hallani.— Constitutional History of England, by Henry Hallam ; 3 vols., new 
 
 English edition, 1881. 
 Hatsell. —Precedents of Proceedings in the House of Commons, In* John 
 
 Hatsell, 4 vols., 1818. 
 Hearn. — Government of England, by W. E. Hearn, 2nd ed., 1887. 
 Hodgins. — Reports of Ministers of Justice and Orders-in-Council on the 
 
 subject of Provincial Legislation, 1867-87, 2 vols., by W. E. Hodgins. 
 Houston. — Constitutional Documents of Canada, by W. Houston, 1891. 
 Howe. — Letters and speeches of the Hon. Joseph Howe, by W. Annand. 
 Howells, St. Tr.— State trials, by T. B. and T. J. Howells.
 
 IIST OF A UTHORITIES CITED. xi 
 
 Jefferson. —Jefferson's Manual of Parliamentary Practice, published periodi- 
 cally with the rules of the two Houses of the Congress of the United States. 
 
 Kingsford. — History of Canada, 10 vols. 
 
 Lareau. — Histoire du Droit Canadian, 2 vols. 
 
 Lefroj'. — Legislative Power in Canada, by A. H. F. Lefroy, 1897-8. 
 
 L. R. App. Cas. — Law Reports, Appeal Cases. 
 
 L. T. X. S. , Law Times, New Series. 
 
 Leg. Ass. J. and Leg. Coun. J. — Journals of the Legislature of Canada, 1841- 
 . 1866. 
 
 Lex Pari. — Lex Parliamentaria. 
 
 Lieber. — Civil Liberty and Self-Governnient, b\- Francis Lieber, 1859. 
 
 Lindsej'. — Life and Times of W. Lyon MacKenzie, by Charles Lindsej-. 
 
 L. C. J. — Lower Canada Jurist. 
 
 L. C. R. — Lower Canada Reports. 
 
 L. X.^Legal Xews, Montreal, edited b}' James Kirby. 
 
 Low. Can. J. — Journals of the Legislature of Lower Canada, 1792-1837. 
 
 Lord Durham's R. — Lord Durham's Report on the State of Canada, 1839. 
 
 Lords' J. — Journals of the House of Lords. 
 
 May. — Constitutional History of England, bj^ Sir T. E. May, 3 vols., 6th 
 Engli.sh ed., 1878. A Treatise on the Law, Privileges, Proceedings and 
 Usage of Parliament, by Sir T. Erskine May, 10th ed., 1893, edited by Sir 
 R. F. D. Palgrave. 
 
 Min. of P. — Minutes of Proceedings of the Senate, 1867-1901. 
 
 Mirror of P.— Mirror of Parliament, 1828-1841. 
 
 Murdoch. — Histor\- of Xova Scotia, by B. Murdoch, 3 vols. 
 
 Orders-in-Council. — Consolidated Orders-in-Council of Canada, by H. H. Bligh, 
 2 vols., 1889. 
 
 Ordinances of the Northwest Territories. 
 
 Palgrave. — Chairman's Handbook, by Reginald F. D. Palgrave, clerk of the 
 English Hou.se of Commons, new ed., 1887. Also the House of Commons : 
 niustrations of its Hi.story and Practice, by the same author. 
 
 Parkman. — Old Regime in Canada, by Francis Parkman. 
 
 Pari. Comp. — The Canadian Parliamentarj' Companion, issued since 1867 at 
 intervals. 
 
 Pari. Hist.— Parliamentary History of England, 1066-1803. Cobbett's, and 
 Hansard's Parliamentary Debates follow this work in order. 
 
 Pari. Reg. — Parliamentary Register, 2 series. 
 
 Pari. Deb. — Canailiaii Parliamentary I)el)ates until 1875, compiled from 
 newspapers, in the Parliamentary Library. 
 
 Pug. and Bur. — Pugsley and Kurbidge's Reports of New Brunswick Cases. 
 
 Rev. Ord. of N. W. T. — Revi.sed Ordinances of tiiu Nort Invest Territories of 
 Canada, 1888. 
 
 Rev. Stat. — 1. Revised Statutes of Canada, 1886. 2. Of Nova Scotia, 1884. 
 3. Of Ontario, 1897. 4. Of Quebec, 1888. 5. Of British Columbia, 1897. 
 6. Of Manitoba, ISO J. 
 
 Scrope. — Life of Lord Sydenham, by G. Poulett Scrope.
 
 XII LIST OF AUTHORITIES CITED. 
 
 Sedgwick. — Rules of tlie Interpretation and Application of Statutory and 
 
 Constitutional Law, by Theodore Sedgwick, 1874. 
 Sen. Deb. — Senate Debates, 1870-1901. 
 Sen. J. — Journals of the Senate of Canada, 1867-1901. 
 Sen. R. and Com. R. — Rules and Orders of the Senate and House of Commons 
 
 of Canada, 1900. 
 Smith's Digest. — Constitution, Manual and Digest, by H. Smith, Journal 
 
 clerk of tlie House of Representatives of the U. S. 
 Sp. Coun. L. C. — Journals of the Special Council of Lower Canada, 1838-1840. 
 Statistical Year Book of Canada, by Geo. Johnson, Dominion Statistician. 
 Stephen. — Commentaries on the Laws of England, by H. J. Stephen, 11th ed. 
 Story. — Commentaries on the Constitution of the United States, by Joseph 
 
 Story, 2 vols., 4th ed., 1873, by T. M. Cooley. 
 Taswell-Langmead. — English Constitutional History, by J. P. Taswell-Lang- 
 
 mead, 4th ed., 1890. 
 Taylor. — Are Legislatures Parliaments ? by Fennings Taylor. 
 Todd. — Parliamentary Government in England, Alpheus Todd, 2 vols., 2nd 
 
 ed., 1889. Parliamentary Government in the British Colonies, by Alpheus 
 
 Todd, 2nd ed., 1894. Private Bill Practice, by Alfred Todd. 
 Turcotte. — Canada sous I'Union, by L. P. Turcotte. 
 Upp. Can. J. — Journals of the Legislatures of Upper Canada, 1792-1840. 
 U. C. C. P. — Upper Canada Commons Pleas Reports. 
 U. C. Q. B. — Upper Canada Queen's Bench Reports. 
 V. and P. — Votes and Proceedings of the House of Commons, 1867-1901. 
 Wilson. — Congressional Government, by Woodrow Wilson, 1884.
 
 CHAPTER I. 
 
 A HISTORICAL REVIEW OF 
 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 L Canada under the French Regime, p. 1.— II. Government from 1760 to 
 1774, p. 5.— ni. Quebec Act, 1774, p. 9.— IV. Constitutional Act, 1791, 
 p. 13. _V. Union Act, 1840, p. 24.— VI. Federal Union of the Provinces, 
 p. 37, British North America Act, 1867, p. 43.— VII. Constitution of the 
 General Government, p. 47.— VIII. Constitution of Parliament, p. 57.— 
 
 IX. Constitution of the Provincial Governments and Legislatures, p. 62.— 
 
 X. Organization of the Northwest Territory, p. 73.— XI. Boundary Ques- 
 tion, p. 77. — XII. Constitutional Pro\-isions respecting Provinces, p. 79. 
 
 I. Canada under the French Regime — The history of parlia- 
 mentary institutions in Canada only commences towards the 
 close of the eighteenth century. Whilst the country remained 
 in the possession of France, the inhabitants were never repre- 
 sented in legislative assemblies and never exercised any 
 control over their purely local affairs by frequent town meet- 
 in o-s. In this respect they occupied a position very different 
 from that of the English colonists in America. The conspicu- 
 ous features of the New England system of government were 
 the wide diffusion of popular power and the almost entire 
 independence of the parent state in matters of purely pro- 
 vincial interest and importance. All the freemen were 
 accustomed to assemble regularly in township meetings, and 
 take part in their debates and proceedings. The town, in 
 fact, was " the political unit," and was accordingly represented 
 in the legislature of the colony. Legislative assemblies,^ 
 indeed, were the rule in all the old colonies of England on 
 this continent — even in proprietary governments like that of 
 Maryland. On the other hand, in tlie French colony, a 
 legislative system was never enjoyed by the inhabitants. 
 
 'Story on the Constitution of the United States (4th ed. Cooley), i. 113, 
 
 114, 193 n. ; Bourinot's I^fical fJov. in Canada, in John.s Hopkins Uni. Stud. 
 
 in Hist, and Pol. S., Baltimore, 1887. 
 
 1
 
 2 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 The first government which ayes established by Samuel 
 Champlain, the founder of Quebec, was invested with large 
 authority.^ For over half a century, whilst the country was 
 practically under the control of trading corporations, the 
 governor exercised all the powers of civil and military 
 government necessary for the security and peace of the 
 colony. Though he had the assistance of a council, he was 
 under no obligation whatever to follow its advice, on all 
 occasions. After some years' experience of conditions of gov- 
 ernment which made tlie early governors almost absolute, 
 Louis XIV., on the advice of Colbert, determined to effect an 
 entire change in the administration of colonial affairs. From 
 1663, the government of Canada was made more conformable 
 to the requirements of a larger population. But in all 
 essential features the government resembled that of a French 
 province. The governor and intendant were at the head of 
 affairs and reported directly to the king.^ Of these two 
 high functionaries, the governor was the superior in position ; 
 he commanded the troops, made treaties with the Indians, and 
 took precedence on all occasions of state. The intendant came 
 next to him in rank, and, by virtue of his large powers, ex- 
 ercised great influence in the colony. He presided at the 
 council, and had control of all expenditures of public money. 
 His commission also empowered him to exercise judicial 
 functions, and in certain cases to issue ordinances having 
 the force of law whenever it might be necessary.^ 
 
 When the king reorganized the government of Canada, in 
 
 ^Garneau i. 87 (Bell's Translation). The "Instructions" iii the early 
 commissions ordered : "And according as affairs occur, you shall, in person, 
 with the advice of prudent and capable persons, prescribe — subject to our 
 good pleasure — all laws, statutes and ordinances ; in so far as they may 
 conform to our own, in regard to such things and concernments as are not 
 provided for by these presents." 
 
 * The governor was styled in his commission, "Gouverneur et Lieutenant- 
 General en Canada, Acadie, Isle de Terre-Neuve, et autres pays de la France 
 Septentrionale ;" and the intendant, "Intendant de la Justice, Police et 
 Finance du Canada," etc. Doutre et Lareau, Histoire du Droit Canadien, 130. 
 
 'See Commissions of Intendauts in Edits et Ordonnances, iii.
 
 CANADA UNDER THE FRENCH REGIME. 3 
 
 the month of April, 1663, he decreed the establishment of a 
 supreme council at Quebec.^ This body, afterwards called the 
 superior council, consisted of the governor, the bishop, the 
 intendant and five councillors, subsequently increased to 
 seven,- and eventually to twelve.^ This council exercised 
 legislative, executive and judicial powers. It issued decrees 
 for the civil, commercial, and financial government of the 
 colony, and gave judgment in civil and criminal causes accord- 
 ing to the royal ordinances and the coutume de Paris, besides 
 exercisinor the function of registration borrowed from the 
 Parliament of Paris. An attorney-general sat in the council, 
 which was also empowered to establish subordinate courts 
 throughout the colony. From the decisions of the intendant 
 or the council there was no appeal except to the king in his 
 council of state. Local governors were appointed at Montreal 
 and Three Rivers, but their authority was very limited ; for 
 tliey were forbidden to fine or imprison any person without 
 obtaining the necessary order from Quebec. Neither the 
 seigneur nor the hahitant had practically any voice whatever 
 in the government ; and the royal governor called out the 
 militia whenever he saw fit, and placed over it what officers 
 lie pleased. Public meetings for any purpose were jealously 
 restricted, even wdien it was necessary to make parish or 
 market regulations.* No semblance of municipal government 
 
 * Ed'U de crdation du conseil souverain de QvAbec, lb. i. 37. 
 
 *In 1675, when the king confirmed the decree of 1663 {lb. i. 83), and 
 revokerl the charter of the West India Co., to wliich exclusive trading privi- 
 leges had been conceded in 1664. Doutre et Lareau, Histoire du Droit 
 Canadien, 118, 184. 
 
 ' In 1703. Tlie councillors were rarely changed, and u.suall3' held office for 
 life. Tliey were eventually chosen hy tlie king from tlie inhahitants of the 
 colony on tlie recommendation of the governor and intendant. The West 
 India Co. made nominations for some years. The first council, after the edict of 
 1063, was selected by the governor and bishop. Parkman, Old Regime, 135-6. 
 
 * II no laisse pas d'etre de tres grande conseijuence de ne pas laisser laliberte 
 au peui)le de dire son sentiment. (Meules au Mhiistre, 1685.) Even "meet- 
 ings held by parishioners under the eye of the cur6 to estimate the cost of a 
 new church seem to have recjuired a special license from the intendant." 
 (Parkman, The Old R('gime in Canada, 280.) "Not merely was the Canadian
 
 4 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 was allowed in the town and village communities. Provision 
 had been made in the constitution of 1663 for the election of 
 certain municipal officers called syndics, to note any infraction 
 of public rights in the large communities; but, after a few 
 futile attempts to elect such functionaries, the government 
 threw every obstacle in the way of anything like a municipal 
 system, and the people finally were left without any control 
 whatever over their most trivial local affairs.'^ 
 
 The bishop exercised from the very outset large influence in 
 public affairs, and the Roman Catholic Church became estab- 
 lished by the decrees and ordinances of the government. The 
 parish was organized as a district for local as well as ecclesi- 
 astical purposes. Tithes for the support of the clergy were 
 imposed and regulated by the ordinances of the government.^ 
 All education was under the control of the church and its 
 numerous religious societies.^ The very social fabric itself 
 rested on feudal principles modified to suit the condition of 
 things in a new country. The habitant held his lands on a 
 tenure which, however favourable to settlement, was based on 
 the acknowledgment of his dependence on the seigneur. But 
 at the same time, the lord of the manor, and the settler on his 
 estate, were on equal footing to all intents and purposes as 
 
 colonist allowed no voice in the government of his province or the choice of 
 his rulers, but he was not even permitted to associate with his neighbour for 
 the regulation of those municipal affairs which the central authority neglected 
 under the pretext of managing." Lord Durham's R., 10. 
 
 1 Doutre et Lareau, Histoire du Droit Canadien, 138. The regulations of 
 1647 show that such officers existed in Quebec, Montreal and Three Rivers, 
 but they had ceased to be appointed by 1661. The first elections held in 1663 
 were allowed to miscarry, and from that time forward, says Garneau, " There 
 was no further question of free municipal government in Canada, so long as 
 French dominion endured, although a nominal syndicate existed for a short 
 time after that now under review." Garneau, i. 189-90. 
 
 * Tithes were first established by Bishop Laval in favour of Quebec Seminary 
 on March 26, 1663. An ordinance of Governor de Tracy, in 1677, made the 
 tithes obligatory. See Lareau, Histoire du Droit Canadien, i. 463-467. A 
 royal ordinance respecting titles and cures was issued in 1679. Edits et Ord., 
 i. 232. 
 
 2 Bourinot's Canada under British Rule, p. 33.
 
 GOVERNMENT FROM 1760 TO 1774. ^ 
 
 respects any real influence in the administration of the public 
 affairs of the colony. The very name of parliament had to the 
 French colonist none of that significance it had to the English- 
 man, whether living in the parent state or in its dependencies. 
 The word in French was applied only to a body whose 
 ordinary functions were of a judicial character, and whose 
 very decrees bore the impress continually of royal dictation. 
 In Canada as in France, absolutism and centralization were 
 the principles on which the government was conducted. The 
 king administered public afiairs through the governor and 
 intendant, who reported to him as frequently as it was 
 possible in those times of slow communication between the 
 parent state and the colony.^ The country prospered or 
 languished, according as the king was able or disposed to take 
 any interest in its affairs ; but even under the most favourable 
 circumstances, it was impossible that Canada could make any 
 decided political or material progress with a system of 
 government whicli centralized all real authority several 
 thousand miles distant.- 
 
 II. Government from 1760 to 1774.— Canada came into the pos- 
 session of Great Britain by the terms of capitulation signed 
 on the 8th of September, 1760.^ By these terms Great 
 Britain bound herself to allow the French Canadians the free 
 exercise of their religion ; and certain specified fraternities, 
 and all communities of religieuses were guaranteed the pos- 
 session of their goods, constitutions and privileges, but a 
 similar favour was denied to the Jesuits, Franciscans or 
 Recollets, and Sulpicians, until tlie king should be consulted 
 
 ' "Tlie wliole system of administration centered in tlie king, who, to borrow 
 the forwiula of his edicts, ' in the fullness of our power and our certain knowl- 
 edge,' was supposed to direct the whole machine, from its iiighcst functions 
 to its pettiest intervention in private aifairs." Parkman, Old Regime, 28o-G. 
 
 'For accounts of system of government in Canada till the conquest, see 
 CJarneau, i. book iii., ciiap. iii. Parkman's Old R^-gime in Canada, chap. xvi. 
 Piourinot's Canada under P>ritish Rule, chap. i. sec. .'). Reports of Attorney- 
 Oencral Thurlow (177:^), and Solicitor-General Wedderburne (177-), cited by 
 Christie, i. chap. ii. 
 
 ^Atty.-Gen. Thurlow ; Christie's Hist., i. 48. Oarneau, ii. 70.
 
 6 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 on the subject. The same reservation was made with respect 
 to tlie parochial clergy's tithes.^ These terms were all in- 
 cluded in the treaty of Paris, signed on the 10th of February, 
 1763, by which France ceded to Great Britain, Canada, and 
 all the Laurentian isles, except St. Pierre and Miquelon, in- 
 siofnificant islands off the southern coast of Newfoundland, 
 which were required for the prosecution of the French 
 fisheries. In this treaty Great Britain bound herself to allow 
 the Canadians the free exercise of their religion, " as far as the 
 laws of Great Britain permit," ^ but no reference was made in 
 the document to the legal system that was to prevail through- 
 out the conquered country.^ 
 
 For nearly four years after the conquest, the government of- 
 Canada was entrusted to military chiefs, stationed at Quebec, 
 Montreal and Three Rivers, the headquarters of the three 
 departments into which General Amherst divided the country .^ 
 Military councils were established to administer law, though, 
 as a rule, the people did not resort to such tribunals, but 
 settled their difficulties among themselves. In 1763, the king, 
 George III., issued a proclamation establishing four new 
 governments, of which Quebec was one.^ Labrador, from St. 
 John's River to Hudson's Bay, Anticosti, and the Magdalen 
 Islands, were placed under the jurisdiction of Newfoundland, 
 and the islands of St. John (or Prince Edward Island, as it 
 was afterwards called), and Cape Breton (He Royale), with 
 
 1 For text of terms of capitulation of Montreal, see Houston's Constitutional 
 Documents of Canada, 32-60. 
 
 2 These words, " as far as the laws of Great Britain permit," appear only in 
 Art. IV. of the treatj^ of Paris, and not in the terms of capitulation. They 
 are also found in the Instructions given in 1763 to Ciovernor Murray. Doutre 
 et Lareau, pp. 328, 560. 
 
 3 Atty.-Gen. Thurlow ; Christie, i. 48. For text of the treaty of Paris, see 
 Houston, 61-65. 
 
 * These three divisions corresponded to the old ones under the French 
 regime. General Murray was stationed at Quebec ; General Gage at Montreal ; 
 Colonel Burton at Three Rivers. Garneau, ii. 82. 
 
 5 The others were East Florida, West Florida, and Grenada. The boun- 
 daries of the several governments are set forth in the proclamatiom ,
 
 GOVERNMENT FROM 1760 TO 1774. ^ 
 
 the smaller islands adjacent thereto, \vere added to the gov- 
 ernment of Nova Scotia. Express power was given to the 
 governors, in the letters-patent by which these governments 
 were constituted, to summon general assemblies, with the 
 advice and consent of his Majesty's council, " in such manner 
 and form as was usual in those colonies and provinces which 
 were under the king's immediate government." Authority 
 was also given to the governors, with the consent of the 
 councils, and the representatives of the people, to make laws 
 and ordinances for the peace, welfare and good government of 
 the colonies in question. The governors were also empowered 
 to establish, with the consent of the councils, courts of judi- 
 cature and public justice, for the hearing of civil and criminal 
 causes, according to law and equity, and, as near as may be, 
 agreeable to the laws of England, with the right of appeal in 
 all civil cases to the privy council.^ General Murray,^ who 
 was appointed governor of Quebec on the 21st November, 
 1763, was commanded to execute his office according to his 
 commission and instructions, under his Majesty's signet and 
 sign manual, or by his Majesty's order-in-council, and accord- 
 ing to laws made with the advice and consent of the council 
 and assembly — the latter to be summoned as soon as the 
 situation and circumstances of the province should admit. 
 The persons duly elected by the majority of the freeholders of 
 the respective parishes and places were required, before taking 
 their seats in the proposed assemblies, to take the oaths of 
 allegiance and supremacy, and the declaration against tran- 
 
 ' Proclamation of 7th October, 1763. Atty.-Oen. Thurlow's Report; 
 Christie, i. 49-50. Houston, 67-09. In the debates on tlie Quebec Bill, the 
 vagueness of this proclamation was sharply criticised, and no one appears to 
 have been willing to assume the responsibility of having framed it for the 
 king. Atty. -Gen. Thurlow acknowletlgcd that "it certainly gave no order 
 whatever with respect to the constitution of Canada; it certainly was not a 
 finished composition, etc." Cavendish's Debates, 29. 
 
 'Sir Jeffery Amherst was in reality the first, and Gen. Murray the second, 
 governor-general of Canada. Garncau, ii. 87 ; »U]tra, 6.
 
 8 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 substantiation.^ All laws, in conformity with the letters- 
 patent, were to be transmitted in three months to the king 
 for disallowance or approval. The governor was to have a 
 negative voice and the power of adjourning, proroguing and 
 dissolving all general assemblies.^ Not the least important 
 feature of the proclamation was the fact that it established 
 equitable methods of dealing with the Indians within the 
 limits of British sovereignty. No person was allowed to 
 purchase lands directly from the Indians. The government 
 itself thenceforth could alone give a legal title to Indian 
 lands, which must, in the first place, be secured by treaty 
 with their Indian claimants. This was the beginning of a 
 policy which has obtained for England the confidence of the 
 Indian nations from Cape Breton to Vancouver.^ 
 
 No assembly ever met in Canada, as the French population 
 were unwilling to take the test oath,^ and the government of 
 the province was carried on solely by the governor-general, 
 with the assistance of an executive council, composed in the 
 first instance of the two lieutenant-governors of Montreal and 
 Three Rivers, the chief -justice, the surveyor-general of customs, 
 and eight others chosen from the leading residents in the 
 colony.^ From 1763 to 1774 the province remained in a very 
 
 ^ The oaths of allegiance, supremacy, and abjuration were formerly required 
 to be taken by every member in the English Commons under various statutes. 
 30 Car. II., st. 2, c. 1, required members of both houses to subscribe a declar- 
 ation against transubstantiation. the adoration of the Virgin, and the sacrifice 
 of the mass. Taswell-Langmead, Const. Hist. , 656, 657. By 29 and 30 Vict. , 
 c. 19, and 31 and 32 Vict., c. 72, a single oath was prescribed for members of 
 all religious denominations ; May, 156. By the Bill of Rights, and the later 
 Act of Settlement, the sovereign of Great Britain, on succeeding to the 
 throne, is required to make a declaration against transubstantiation at the 
 first m.eeting of parliament or at the coronation. Anson's Law and Custom 
 of the Constitution, Part II. , 65. Since the accession of Edward VII. to the 
 throne the Roman Catholics of the Empire have made a remonstrance against 
 the continuance of an act legalized under very different conditions. See 
 debate in Can. Commons, March 1-2, 1901. 
 
 ^Atty.-Gen. Thurlow, Christie, i. 50-1. 
 
 'See Kingsford's Hist, of C, v. 127. 
 
 *It was convoked pro/ormd, but never assembled. Garneau, ii. 92, 108. 
 
 ^Garneau, ii. 87-8. Only one native French Canadian was admitted into 
 this council.
 
 THE QUEBEC ACT OF 1774. 9 
 
 unsettled state, chiefly on account of the uncertainty that 
 prevailed as to the laws actually in force. The "new sub- 
 jects," or French Canadians, contended that justice, so far as 
 they were concerned, should be administered in accordance 
 with their ancient customs and usages, by which for a long 
 series of years their civil rights and property had been regu- 
 lated, and which they also maintained were secured to them 
 by the terms of the capitulation and the subsequent treaty. 
 On the other hand, " the old," or English subjects, argued from 
 the proclamation of 1763 that it was his Majesty's intention 
 at once to abolish the old established jurisprudence of the 
 country, and to establish English law in its place, even with 
 respect to the titles of lands, and the modes of descent, alien- 
 ation and settlement.^ 
 
 Ill, The Quebec Act of 1774.— The province of Quebec remained 
 for eleven years under the unsatisfactory system of govern- 
 ment established by the proclamation of 1763. In 1774, 
 Parliament intervened for the first time in Canadian affairs 
 and made important constitutional changes. The previous 
 constitution had been created by letters-patent under the 
 great seal of Great Britain, in the exercise of an unquestion- 
 able and undisputed prerogative of the Crown. The colonial 
 institutions of the old possessions of Great Britain, now 
 known as the United States of America, had their origin in 
 the same way.^ But in 1774, a system of government "vvas 
 
 'Atty.-Oen. Thurlow, in Christie, i. 51-G3 ; also Report of Atty.-Gen. 
 Yorke, and Sol. -Gen. De Grey, 14th April, 1766, quoted by Thurlow, 55. 
 The latter able lawyer expressed himself very forcibly as to tlie rights of the 
 French Canadians: " Tliey seem to have been strictly entitled h^^ the jus 
 (jfiiliuni to their property, as they possessed it upon the capitulation and 
 treaty of peace, together with all its qualities and incidents hy tenure or 
 otherwise, and also to their personal liherty. * * » ♦ Jt seems a neces- 
 sary conse(|uence tliat all those laws hy whicli that property was created, 
 defined, and secured, must be contiinied to them. To introduce any other, 
 as Mr. Yorke and Mr. I)(.- Grey empliatically expressed it, tends to confound 
 anil s\d)vcrt rights, instead of supp(jiting tiicm." See Bourinot's Canada 
 under iiiitish Kule, pp. 42-45. 
 
 * Report of Committee of Council, 1st Maj-, 184!), a[)p. A., vol. ii. Karl 
 Grey's Colonial Policy.
 
 10 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 granted to Canada by the express authority of parliament.^ 
 This constitution was known as the Quebec Act, and greatly 
 extended the boundaries of the province of Quebec, as defined 
 in the proclamation of 1763, On one side, the 'province 
 extended to the frontiers of New England, Pennsylvania, New 
 York province, the Ohio, and the left bank of the Mississippi ; 
 on the other, to the Hudson Bay Territory. Labrador, and 
 the islands annexed to Newfoundland by the proclamation 
 of 1763, were made part of the province of Quebec. 
 
 The bill was introduced in the House of Lords on the 2nd 
 of May, 1774, by the Earl of Dartmouth, then colonial secre- 
 tary of state, and passed that body without opposition. 
 Much discussion, however, followed the bill in its passage 
 throusrh the House of Commons, and on its return to the 
 Lords, the Earl of Chatham opposed it " as a most cruel, 
 oppressive, and odious measure, tearing up justice and every 
 good principle by the roots." The opposition in the province 
 was among the British inhabitants, who sent over a petition 
 for its repeal or amendment. Their .principal grievance was 
 that it substituted the laws and usages of Canada for English 
 law,2 The act of 1774 was exceedingly unpopular in England 
 and in the English-speaking colonies, then at the commence- 
 ment of the Revolution.^ Parliament, however, appears to 
 have been influenced by a desire to adjust the government of 
 
 ^14 Geo. III., c. 83, "making more effectual provision for the government 
 of the province of Quebec, in North America." The bill, on the motion for 
 its passage, with amendments, in the House of Commons, was carried by 56 
 yeas to 20 naj's. In the House of Lords it had a majority of 19 ; Contents 26, 
 kon. Con. 7. Cav. Deb., iv. 296. 
 
 ^Cav. Deb., preface, iii-vi. 
 
 ^ The American Congress, in an address to the people of Great Britain, Sep- 
 tember 5, 1774, declared the act to be unjust, unconstitutional, and most 
 dangerous and destructive of American rights. (Christie, i. 8-9.) In 1779, 
 Mr. Maseres, formerly attorney -general of Quebec, stated that " it had not 
 only offended the inhabitants of the province, but alarmed all the English 
 pro^-inces in America." Cav. Deb., v. See report for 1890 on Canadian 
 Archives, by Douglas Br3''mner, xx-xxii.
 
 THE QUEBEC ACT OF 1774. H 
 
 the province so as to conciliate the majority of the people.^ 
 In the royal speech closing the session, the law was character- 
 ized as "founded on the plainest principles of justice and 
 humanity, and would have the best effect in quieting the 
 minds and promoting the happiness of our Canadian sub- 
 jects." ^ 
 
 The new constitution came into force in October, 1774. 
 The act sets forth among the reasons for legislation that the 
 provisions made by the proclamation of 1763 were " inappli- 
 cable to the state and circumstances of the said province, the 
 inhabitants whereof amounted at the conquest, to about sixty- 
 five thousand persons professing the religion of the Church 
 of Rome, and enjoying an established form of constitution 
 and system of laws, by which their persons and property had 
 been protected, governed, and ordered for a long series of 
 years, from the first establishment of the province." Con- 
 sequently, it is provided that Roman Catholics should be no 
 longer obliged to take the test oath, but only the oath of 
 allegiance. The government of the province was entrusted 
 to a governor and a legislative council, appointed by the 
 Crown, inasmuch as it was " inexpedient to call an assembly."^ 
 This council was to comprise not more than twenty-three, and 
 not less than seventeen members, and had the power, with the 
 consent of the governor or commander-in-chief for the time 
 being, to make ordinances for the peace, welfare, and good 
 government of the province. They had no authority, how- 
 ever, to lay on any taxes or duties except such as the inhab- 
 itants of any town or district might be authorized to assess or 
 levy within its precincts for roads and ordinary local services.^ 
 
 'fJameau, ii. 12o, who represents French Canadian views in iiis historj^ 
 acknowledges that "the law of 1774 tended to reconcile the Canadians to 
 British rule." 
 
 »Cav. Deb., iv. 
 
 * Fox contended for a representative assembly, but Lord North expressed 
 his opinion that it was not wise for a Protestant government to delegate its 
 powers to a Catholic assembly. Cav. Deb. *24(5-S. 
 
 * A supplementary bill, passed in the session of 1774 (14 (ieo. lll.,c. 88),
 
 12 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 No ordinance could be passed, except by a majority of the 
 council, and every one had to be transmitted within six 
 months after its enactment to his Majesty for approval or 
 disallowance. It was also enacted that in all matters of con- 
 troversy, relative to property and civil rights, recourse should 
 be had to the French civil procedure, whilst the criminal law 
 of England should obtain to the exclusion of every other 
 criminal code which might have prevailed before 1764. Both 
 the civil and the criminal law might be modified and amended 
 by ordinances of the governor and legislative council. Owners 
 of lands, however, might bequeath their property by will, to 
 be executed either according to the laws of Canada or the 
 forms prescribed by the laws of England. The act also 
 expressly gave the French Canadians additional assurance 
 that they would be secured in the rights guaranteed to them 
 by the terms of the capitulation and the subsequent treaty. 
 Roman Catholics were permitted to observe their religion 
 with perfect freedom, and their clergy were to enjoy their 
 " accustomed dues and rights " with respect to such persons as 
 professed that creed. Consequently, tlie Roman Catholic 
 population of Canada were relieved of their disabilities many 
 years before people of the same belief in Great Britain and 
 Ireland received similar privileges.^ 
 
 The new constitution was inaugurated by Major-General 
 Carleton, afterwards Lord Dorchester,^ who nominated a 
 legislative council of twenty-three members, of whom eight 
 were Roman Catholics.^ This body sat, as a rule, with closed 
 
 provided a revenue for defraying expenses of administration of justice and 
 civil government by imposing duties on spirits and molasses, in place of old 
 French colonial custom dues. The deficiency in the expenses was supplied 
 from the imperial treasury. Christie, i. 1-2. Houston, 97. 
 
 * For Quebec Act, see Houston, 90-96. Consult Bourinot's Canada under 
 British Rule, chap, ii., sec. 1. 
 
 ^ He was appointed governor of Canada in 1772; in 1776 created a knight 
 of the bath ; in 1786 raised to the peerage with the above title. Caven. Deb., 
 100, 7wte. 
 
 'Several were public 'functionaries. Garneau, ii. 166.
 
 CONSTITUTIONAL ACT, 1791. 13 
 
 doors ; ^ both languages were employed in the debates, and the 
 ordinances agreed to were drawn up in French and English. 
 It was not able to sit regularly, on account of the government 
 being fully occupied with the defence of the province during 
 the progress of the American war of independence.- In 1776, 
 the governor-general called to his assistance a privy council 
 of live members, in accordance ,- with the royal instructions 
 accompanying his commission. This advisory, not legislative, 
 body, was composed of the lieutenant-governor and four 
 members of the legislative council.^ 
 
 IV. Constitutional Act, I791.-The constitution of 1774 re- 
 mained in force until the 20th of December, 1791, when two 
 provinces were established in Canada, and a more liberal 
 system of government was given to each section. Whilst the 
 American war of independence was in progress, the French 
 Canadian people remained faithful to their allegiance, and 
 resisted all the eftbrts of the Americans to induce them to 
 revolt against England.'* One very important result of the 
 war was the immigration into British North America of a 
 large body of people who had remained faithful to British 
 connection tliroughout the struggle in the old colonies, and 
 were destined, with their descendants, to exercise a great 
 influence on the material and political development of Canada. 
 Some forty thousand loyalists, as near as can be ascertained, 
 came into the British American provinces. The majority 
 
 'Councillors were required to take the follo\ving oath : — " I swear to keep 
 close and secret all such matters as shall be treated, debated and resolved in 
 Council, witliout disclosing or publishing the same or any part thereof." 
 Doutre et Lareau, 719. 
 
 ^It did not meet during 1770. Garneau, ii. 165. 
 
 'Gameau, ii. 169. Exception was taken to the legality of this body by 
 Chief-Justice Livius, who contended that the law of 1774 only gave authoritj' 
 to establi.sli a h-gi.slativc council. He was sustained by the law officers of the 
 Crown in England. Kingsford's Hist, of Canada, vi. 4G6-7. 
 
 *In 1775, General Washington addressed a proclamation to tlic French 
 Canadians ; Baron D'Estaing, commander of the French fleet, did tlic same in 
 1788. All such efforts were ineffectual. Speech of Sir G. E. Cartier, Confcd. 
 Deb., 57-60.
 
 14 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 migrated to the maritime colony of Nova Scotia, and founded 
 the province of New Brunswick ; but a large number, some 
 ten thousand probably, established themselves in the countrj^ 
 known as Upper Canada.^ By 1790, the total population of 
 Canada had reached, probably, over one hundred and sixty 
 thousand souls.^ In 1788, the governor-general created five 
 judicial districts in Upper and Lower Canada, in order to 
 meet the requirements of the new population.^ It had by this 
 time become the opinion of English statesmen that it would be 
 advisable to make further constitutional changes in the prov- 
 ince, more consonant with the wishes of its large population, 
 of which the British element now formed a very important 
 part. The question of representative government agitated 
 the province from 1783 to 1790, and petitions and memorials, 
 embodying the conflicting views of the political parties into 
 which the people were divided, were presented to the home 
 government, which decided to deal with the question, after 
 receiving a report from Lord Dorchester, who had been 
 authorized to make full inquiry into the state of the colony. 
 In the session of 1791, George III. sent a message to the 
 House of Commons declaring that it would be for the benefit 
 of the people of the province if two distinct governments were 
 
 ^Introduction to Canada Census Statistics of 1871, vol. iv., xxx\iii.-xlii. 
 Canada under British Rule, chap, iii., sec. 73. 
 
 2 The population of New France in 1760 was estimated at between 60,000 
 and 70,000, a considerable emigration to France having taken place after the 
 conquest. In 1775, the population of all Canada was estimated at 90,000. In 
 1790, Nova iScotia had probably 30,000 inhabitants ; 1793, Cape Breton, 2,000; 
 St. John or Prince Edward Island, 4,500 in 1796 ; New Brunswick had 35,000 
 b}- 1806. — (Census Statistics of 1871, vol. iv. ) Others estimate the population 
 of Canada in 1790 at only 135,000. Garneau, ii. 205. 
 
 2 The district in the province of Quebec was called Gasp^ ; the other four in 
 the upper section were called Luneburg, Mecklenburg, Nassau and Hesse, 
 after great houses in Germany, allied to the roj-al family of England. Lune- 
 burg extended from the Ottawa to the Gananoque ; Mecklenburg, from the 
 Gananoque to the Trent ; Nassau, from the Trent to Long Point, on Lake 
 Erie ; and Hesse embraced the rest of Canada to the St. Clair. Doutre et 
 Lareau, Histoire du Droit Canadien, 744. Bourinot's Local Government in 
 Canada. 30. Luneburg was the German term, first used.
 
 CONSTITUTIONAL ACT, 1791. 15 
 
 established therein under the names of Lower Canada and 
 Upper Canada.^ The result was the passage through parlia- 
 ment of the Constitutional Act of 1791,- which was introduced 
 in the House of Commons by Mr. Pitt. . This act created much 
 discussion in Parliament and in Canada, where the principal 
 opposition came from the British inhabitants of Lower 
 Canada.^ ]\Iuch jealous}'- already existed between the two 
 races, who were to be still more divided from each other in 
 the course of the operation of the new constitution. The 
 authors of the new scheme of government, however, were of 
 opinion that the division of Canada into two provinces would 
 have the effect of creating harmony, since the French would 
 be left in the majority in one section, and the British in the 
 other.'' The Quebec Act, it was generally admitted, had not 
 promoted the prosperity or happiness of the people. Great 
 uncertainty still existed as to the laws actually in force under 
 the act. Although it had been sixteen years in operation, 
 neither the judges nor the bar clearly understood the character 
 of tlie laws of Canada previous to the conquest. No certainty 
 
 'Marcli 4, 1791. Christie, i. 68-69. 
 
 *31 Geo. III., c. 31. "In Upper and Lower Canada the three estates of 
 governor, council and assembly were established, not by the Crown (as in the 
 case of the old colonies), but by the express authoritj' of Parliament. This 
 deviation from the general usage was luiavoidable, liccause it was judged riglit 
 to impart to the Roman Catholic popuhition of tlie Canadas privileges wliicli, 
 in the year 1791, tiie Crown could not have legally conferred upon them. 
 There is also reason to believe that the .settlement of the Canadian constitu- 
 tion, not by a grant from the Crown merely, but in virtue of a positive statute, 
 was regarded l)v the American loyalists as an important guarantee for tlie 
 necure enjoyment of their political franchises." Rep. of Com. of Council, 
 1st May, 1H49 ; Karl firey's Colonial Policy, ii., app. A. 
 
 *Mr. Adam Lyniltumer, a Quebec merchant, was heard on tiie 2lird Marcii, 
 1701, at the l>ar of the House of Commons against the l)ill. Christie, i. 74-114. 
 
 * Mr. Pitt said : " I hope this separation will put an end to the competition 
 between the old French inlialjitants and the new settlers from Britain and the 
 British colonies." Edminid Burke was of opinion tliat " to attempt to 
 amalgamate two populations composed of races of men diverse in languages, 
 laws, and customs, was a complete absurdity'." For debates on bill see Kng. 
 Hans. Pari. Hist. vol. 2S, j). 1271 ; vol. 20, i)p. 104, 309-459, 655. Garneau, 
 ii. 198-203. Christie, i. 00-114.
 
 16 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 existed in any matters of litigation except in the case of the 
 possession, transmission, or alienation of landed ' property, 
 where the custom of Paris was quite clear. The Canadian 
 courts sometimes admitted, and at other times rejected, French 
 law, without explaining the grounds of their determination. 
 In not a few cases, the judges were confessedly ignorant of 
 French Canadian jurisprudence.^ 
 
 The Constitutional Act of 1791 established in each province 
 a legislative council and assembly, with power to make laws. 
 The legislative council was to be appointed by the king for 
 life — in Upper Canada to consist of not less than seven, and in 
 Lower Canada of not less than fifteen members. Members of 
 the council and assembly must be twenty-one years old, and 
 either natural-born subjects or naturalized by act of parlia- 
 ment, or subjects of the Crown by the conquest and cession of 
 Canada. The sovereign might, if he thought proper, annex 
 hereditary titles of honour to the right of being summoned to 
 the legislative council in either province.^ The speaker of 
 the council was to be appointed by the governor-general. The 
 whole number of members in the assembly of Upper Canada 
 was not to be less than sixteen ; in Lower Canada not less than 
 fifty — to be chosen by a majority of votes in either case. 
 The limits of districts returning representatives, and the 
 number of representatives to each, were fixed by the governor- 
 general. The county members were elected by owners of 
 lands in freehold, or in fief or roture, to the value of forty 
 
 ^ Christie, i. 67. Mr. Lymburner, lb. 77-79 ; Report on Administration of 
 Justice, 1787. Garneau, ii. 189-90. 
 
 ^No titles were ever conferred under the authority of the act. Colonel 
 Pepperrell was the first American colonist who was made a baronet for his 
 services in the capture of Louisbourg, 1745. Such distinctions were very rare 
 in Canada during the years previous to Confederation. Chief Justices James 
 Stuart and J. B. Robinson were both made baronets in the early times of Can- 
 ada. But, since 1867, the Queen has conferred special marks of royal favour on 
 Canadians. (See Todd Parh Govt, in B. C, 2nd ed., 322.) The order' of St. 
 Michael and St. George has been expressly enlarged with a view of giving an 
 imperial recognition of the services of distinguished colonists in different 
 parts of the Empire. The Crown alone can confer titles.
 
 CONSTITUTIONAL ACT, 1791. 17 
 
 shillings sterling a year over and above all rents and charges 
 paj^able out of the same. Members for the towns and town- 
 ships were elected by persons having a dwelling house and lot 
 of ground therein of the yearly value of £5 sterling or up- 
 wards, or who, having resided in the town for twelve months 
 previous to the issue of the election writ, should have bond 
 fide paid one year's rent for the dwelling-house in which he 
 shall have resided, at the rate of £10 sterling a year or up- 
 wards. No legislative councillor or clergyman could be elected 
 to the assembly in either province. The governor was auth- 
 orized to fix the time and place of holding the meeting of the 
 legislature and to prorogue and dissolve it whenever he 
 deemed either course expedient ; but it was also provided that 
 the legislature was to be called together once at least every 
 year, and that each assembly should continue for four years, 
 unless it should be sooner dissolved by the governor. It was 
 in the power of the governor to withhold as well as give the 
 royal assent to all bills, and to reserve such as he should 
 think fit for the signification of the pleasure of the Crown. 
 The British parliament reserved to itself the right of pro- 
 viding regulations, imposing, levying and collecting duties, for 
 the regulation of na vitiation and commerce to be carried on 
 between the two provinces, or between either of them and any 
 other part of the British dominions or any foreign country. 
 Parliament also reserved the power of appointing or directing 
 the payment of duties, but at the same time left the exclusive 
 apportionment of all moneys levied in this way to the legis- 
 lature, which could apply them to such public uses as it might 
 deem expedient. It was also provided in the new constitution 
 that all public functionaries, including the governor-general, 
 should be appointed by the Crown, and removable at the 
 royal pleasure. The free exercise of the Roman Catholic 
 religion was guaranteed permanently. The king was to have 
 the right to set apart, ioi- tlie use of the Protestant clei-gy in 
 the colony, a seventh part of all unclcaird Crown lands. The 
 governors might also be empowered to erect parsonages and 
 
 endow them, and to present incumbents or ministers of the 
 2
 
 18 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 Church of England, and whilst power was given to the pro- 
 vincial legislatures to amend the provisions resj^ecting allot- 
 ments for the support of the Protestant clergy, all bills of such 
 a nature could not be assented to until thirty days after they 
 had been laid before both houses of the imperial parliament.^ 
 The governor and executive council were to remain a court of 
 appeals until the legislatures of the provinces might make 
 other provisions.- The right of bequeathing property, real and 
 personal, was to be absolute and unrestricted. All lands to 
 be granted in Upper Canada were to be in free and common 
 socage, as well as in Lower Canada, when the grantee desired 
 it. English criminal law was to obtain in both provinces.^ 
 
 A proclamation was issued on the 18th of November, 1791.* 
 On the 7th of May, 1792, Lower Canada was divided into 
 fifty electoral districts, returning altogether fifty members. 
 The legislature of that province was called together by pro- 
 clamation on the 30th of October, and met for the first time 
 accordingly at Quebec on the 17th of December, 1792. The 
 legislative council was composed of fifteen members.^ The 
 government of Upper Canada w^as organized at Kingston, in 
 July, 1792, when the members of the executive and legislative 
 
 ^ The intent of these provisions was to preserve the rights and interests of 
 the established Church of England in both provinces from invasion by their 
 respective legislatures. Christie, i. 122. 
 
 * An ordinance of the province of Quebec had so constituted the executive. 
 See Doutre et Lareau, 713. 
 
 3 For Constitutional Act of 1791 and of supplementarj' Acts, see Houston, 
 112-148. 
 
 *By the lieutenant-governor, General Alured Clarke. The governor-gen- 
 eral. Lord Dorchester, was absent in England. This proclamation set forth 
 the division line between the provinces as stated in the order of council 
 of the previous August — the Ottawa river being the line as far as Lake 
 Temiscamingue. Christie, i. 124. 
 
 *Hon. W. Smith, chief justice, was appointed speaker of the legislative 
 council of Lower Canada ; J. A. Panet was elected speaker of the legislative 
 assembly. See Christie, i. 126-8, where names of members of both houses are 
 given. The legislature met for some years in the building known as the old 
 Bishop's Palace, situated between the Grand Battery and Prescott Gate. 
 See Hawkins's Pictures of Quebec.
 
 CONSTITUTIONAL ACT, 1791. 19 
 
 council were sworn, and writs issued for the election of the 
 assembly. Tlie first meeting of the legislature of Upper 
 Canada — with seven members in the legislative council and 
 sixteen in the assembly — was held at Newark (the old name 
 of Niagara) on the 17th day of September, 1792, and was 
 formally opened by Lieutenant-Governor Simcoe.^ Both 
 legislatures, even in those early times of the provinces, 
 assembled with the formalities that are observed at the open- 
 ing of the imperial parliament.- Tlie rules and orders 
 adopted in each legislature were based, as far as practicable in 
 so new a countr}^ on the rules and usages of its British 
 prototype. 
 
 The Constitutional Act of 1791 was framed with the avowed 
 object of " assimilating 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." ^ 
 
 For some years after the inauguration of the new constitu- 
 tion, political matters proceeded with more or less harmony, 
 but eventually a conflict arose between the governors and the 
 representatives in the assembly, as well as between the latter 
 
 ' Hon. W. Osgoode, cliief justice, speaker of legislative council ; W. Mac- 
 donnell, speaker of legislative assembly. The first meeting was in a rude 
 frame house, about half a mile from the village — it was not unusual for the 
 members to assemble in a tent. (Scadding's Toronto, 29. Bourinot's Canada 
 under British Rule, pp. 93, 94.) The legislature of Upper Canada was 
 removed to Yoik, now Toronto, in 1797 — that town iuiving boon founded and 
 named by Governor Simcoe in 1794. {Ih. 101.) The provincial legislature 
 met in a wooden building on what is now known as Parliament Street. 
 Scaflding's Toronto, 26-7. 
 
 'The Duke rlc la Rochcfoucault-Liancourt, who was present at an "opening" 
 in 179.'>, at Newark, gives a brief account of the ceremonial observed even 
 amid the )iuml)le surroundings of the first parliament. See vol. ii. 88. 
 
 'Despatch of Lord Grenville to Lord Dorchester, 20th Oct., 1789, given in 
 Ai)[). to Cliristie, vi. lG-24. Lt. -Governor Simcoe, in closing the first session 
 of the legislature of Upj)er Canada, said that it was the desire of the imperial 
 govcnnnent to make the new constitutional system "an image and transcript 
 of the British constitution." See Jour, of U. C, 1792 ; E. Com. P., 1839, vol. 
 .33, p. 100
 
 20 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 and the upper house, which kept the people in the different 
 provinces, especially in Lower Canada, in a state of continual 
 agitation. In Upper and Lower Canada the official class was 
 arrayed, more or less, with the legislative council against the 
 majority in the assembly. In Lower Canada the dispute was 
 at last so aggravated as to prevent the harmonious operation 
 of the constitution. ~ The assembly was constantly fighting for 
 the independence of parliament, and the exclusive control of 
 the supplies and the civil list. The control of "the casual and 
 territorial revenues " was a subject which provoked constant 
 dispute between the crown officials and the assemblies in all 
 the provinces. These revenues were not administered or 
 appropriated by the legislature, but by the governors and 
 their officers. At length, when the assemblies refused supplies, 
 the executive government availed itself of these funds in 
 order to make itself independent of the legislature, and the 
 people through their representatives could not obtain those 
 reforms which they desired, nor exercise that influence over 
 officials which is essential to good government.^ The governor 
 dissolved the Quebec legislature with a frequency unparalleled 
 in political history, and was personally drawn into the 
 conflict. The majority in the assembly persistently advocated 
 an elective legislative council, which would necessarily increase 
 the influence of the French Canadians, and were too often 
 intemperate in the expression of their opinions. Public 
 officials were harassed by impeachments. The assembly's bills 
 of a financial, as well as of a general character, were frequently 
 rejected by the legislative council, and the disputes between 
 the two branches of the legislature eventually rendered it 
 impossible to pass any useful legislation. In this contest the 
 two races were found arrayed against each other in the 
 bitterest antagonism.^ Appeals to the home government were 
 
 ^ Mr. W. Macdougall : Mercer v. Attorney-General for Ontario, Can. Sup. 
 C. E,., vol. V. 54.5-6. 
 
 ^ " I expected to find a contest between a government and a people; I found 
 two nations warring in the bosom of a single state ; I found a struggle, not of 
 principles, but of races." Lord Durham's R., 7
 
 CONSTITUTIONAL ACT, 1791. 21 
 
 very common, but no satisfactory results were attained as 
 long as the constitution of 1791 remained in force. In Upper 
 Canada the financial disputes, which were of so aggravated a 
 character in the lower province, were more easily arranged ; 
 but nevertheless a great deal of irritation existed on account 
 of the patronage and political influence being almost exclus- 
 ively in the hands of the official class — derisively called a 
 "family compact" — which practically controlled the executive 
 and legislative councils.^ Religious passion was also aroused 
 on account of the large grants of public land to the Anglican 
 Church (see infra, p. 32), which was all powerful in the 
 government of the province. 
 
 In Nova Scotia the majority of the house of assembly were 
 continually protesting against the composition of the execu- 
 tive and legislative councils, and the preponderance therein of 
 certain interests which they conceived to be unfavourable to 
 reform.- In New Brunswick, for years, the disputes between 
 tlie executive and legislative powers were characterized by 
 much acrimony, but eventually all the revenues of the prov- 
 ince were conceded to the assembly, and the government 
 became more harmonious from the moment it was conflded to 
 those who had the confidence of the majority in the house.^ 
 In Prince Edward Island the political difficulty arose from the 
 land monopoly,^ which was not to disappear in its entirety 
 until tiie colony became a part of the confederation of Canada. 
 But when we come to review the political condition of all the 
 provinces, we find, as a rule, " representative government 
 
 'Lord Durham's R., 56-58. 
 
 'Mr. Vmiri},' to Lord Durham, R. , 75, and App. At the time of the border 
 ditlioultieH with Maine, the Nova Scotia legislature voted the necessary sup- 
 plies. " Yet," said Mr. Howe, " those who voted the money, who were 
 reHponHil)Ic to their constituents for its expenditure, and without whose con- 
 sent (for tlicy formed two-thirds of the Coninions) a shillinif could !iot have 
 licen drawn, liad not a sinylt; man in the local cahinct, hy whom it was to be 
 .spent, and by whnni, in that trying emergency, the governor would be ad- 
 viHod." Howe's Spijeches and Public Letters, ii. 275. 
 
 'Lord Durham's R., 74. 
 
 ♦ //-;</. 75.
 
 22 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 coupled with an irresponsible executive, the same abuse of the 
 powers of the repi'esentative bodies, owing to the anomaly of 
 their position, aided by the want of good municipal institu- 
 tions; and the same constant interference of the imperial 
 administration in matters which should be left wholly to the 
 provincial governments."^ In Lower Canada, the descendants 
 of the people who had never been allowed by France a voice 
 in the administration of public affairs, had, after some years' 
 experience of representative institutions, entered fully into 
 their spirit and meaning, and could not now be satisfied with 
 the workings of a political system which always ignored the 
 wishes of the majority who really represented the people in 
 the legislature. Consequently the discontent at last assumed 
 so formidable a character that legislation was completely 
 obstructed. Eventually this discontent culminated in the 
 rebellion of 1837-38,- which inflicted much injury on the 
 province, though happily it was confined to a very small part 
 of the people. An attempt at a rebellion was also made in 
 the upper province, but so unsuccessfully that the leaders 
 were obliged to fly almost simultaneously with the rising of 
 their followers;^ though it was not for many months after- 
 wards that the people ceased to feel the injurious effects of the 
 aofitation which the revolutionists and their emissaries endeav- 
 oured to keep up in the province. In the lower or maritime 
 colonies, no disturbance occurred,* and the leaders of the popu- 
 lar party were among the first to assist the authorities in 
 
 ^Lord Durham's R.., 74. 
 
 ^ For various accounts of this ill-advised rebellion in Lower Canada, and of 
 the political controversies which preceded it, see Garneau, ii. , chaps, ii. and 
 iii., Book 16, pp. 418-96 ; Christie, vols. iv. and v. ; Bourinot's Canada under 
 British Rule, chap. vi. 
 
 ^Ib. pp. 134, 153 ; Lindsay's Life of AV. Lyon Mackenzie. 
 
 * " If in these provinces there is less formidable discontent and less obstruc- 
 tion to the regular course of government, it is because in them there has been 
 recently a considerable departure from the ordinary course of the colonial 
 svstem, and a nearer approach to sound constitutional practice." Lord Dur- 
 ham's R., 74.
 
 CONSTITUTIONAL ACT, 1791. 23 
 
 their efforts to preserve the public tranquillity, and to express 
 themselves emphatically in favour of British connection.^ 
 
 The result of these disturbances in the upper provinces was 
 another change in the constitution of the Canadas. The im- 
 perial government was called upon to intervene promptly in 
 their affairs. Previous to the outbreak in Canada the govern- 
 ment had sent out royal commissioners with instructions to 
 inquire fully into the state of the province of Lower Canada, 
 whei-e the ruling party in the assembly had formulated their 
 grievances in the shape of ninety-two resolutions, in which, 
 among other things, they gave emphasis to their demand for an 
 elective legislative council.^ Lord Gosford came out in 1835 
 as governor -general and as head of the commission,^ but the 
 result tended only to intensify the discontent in the province. 
 In 1837, Lord John Russell carried in the House of Commons, 
 by a large majority, a series of resolutions, in which the 
 demand for an elective legislative council and other radical 
 changes was positively refused^ — a rebellion almost immedi- 
 ately followed by rebellion. In this public emergency the 
 Queen was called upon, on the 10th of February, 1838, to 
 sanction a bill passed by the two houses, suspending the con- 
 stitution, and making temporary provision for the government 
 of Lower Canada. This act ^ was proclaimed in the Quebec 
 Gazette on the 29th of March in the same year, and, in 
 accordance with its provisions. Sir John Colborne appointed a 
 special council,*' which continued in office until the arrival of 
 Lord Durham, who superseded Lord Gosford as governor- 
 
 ' See remarks of Mr. Joseph Howe at a ))ul)li(: meeting held at Halifax, N.S., 
 in 1838. Howe's Letters and Speeches, i. 171, 17!). 
 
 Hiarneau, ii. 414. Journals, L. C, 1834, j). 310. Kingafonl, ix. 529. 
 
 'SirC. flrcy and Sir (i. fiipps were associated with T.oid (losfmil on (ho 
 Cominission. Kingsford, ix. ~M). 
 
 *Kng. Com. J. [9'2] 305; Mirmr .,f !'., 1J43-4. 
 
 5 1 and 2 Vict., c. ; 2 aii<l 3 Vu-X., c. 5.3. 
 
 ^Christie, v. 51. Tin: first ordinance Huspendi-d ihu llaheaH Cor/iiis and 
 declarc<l that the enactment of tiie council sliould take effect from date of 
 passage.
 
 24 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 general,^ and was also entrusted with large powers as high 
 commissioner^ "for the adjustment of certain important 
 affairs, affecting the provinces of Upper and Lower Canada." 
 Immediately on Lord Durham's arrival he dissolved the 
 special council just mentioned and appointed a new executive 
 council.' This distinguished statesman continued at the head 
 of affairs in. the province from the last of May, 1838, until the 
 3rd of November in the same year, when he returned to 
 England, where his ordinance of the 28th of June, sentencing 
 certain British subjects in custody to transportation without a 
 form of trial, and subjecting them and others, not in prison, 
 to death in case of their return to the country without per- 
 mission of the authorities, had been severely censured in and 
 out of Parliament as not warranted by law.^ So strong was 
 the feeling in the Imperial Parliament on this question, that a 
 bill was passed to indemnify all those who had issued or 
 acted in enforcing an ordinance really enacted in the interest of 
 peace and clem en cy.^ 
 
 V. Union Act, 1840.— The immediate result of Lord Durham's 
 mission was an elaborate report,*' in which he fully reviewed 
 the political difficulties of the provinces, and recommended 
 imperial legislation with the view of remedying existing evils 
 and strengtliening British connection. The most important 
 
 ^ Christie, v. 47-9. Sir John Colborne was only administrator at this time. 
 
 ^For instructions, in part, to Lord Durham and his remarks in the House of 
 Lords on accepting the office, see Christie, v. 47-50. 
 
 ^Christie, v. 150-5L After the departuie of Lord Durham a "special 
 council " was again appointed. Jh. 240. 
 
 * For debates on question, text of ordinance and accompanying proclamation, 
 see Christie, v. 158-83. 
 
 ^This bill was introduced by Lord Brougham, a personal enemy and the 
 severest critic of Lord Durham's course in this matter. (1 and 2 Vict., c. 112.) 
 In admitting, the questionable character of the ordinance, Lord Durham's 
 friends deprecated the attacks made against him, and showed that all his 
 measures had been influenced by an anxious desire to pacify tlie dissensions in 
 the provinces. Christie, v. 183-94. Bourinot's Canada under British Rule, 
 pp. 136-138. Kingsford, x. 143, et seq. 
 
 ^Officially communicated to Parliament, 11th Feb., 1839.
 
 UNION ACT, 1840. 25 
 
 recommendation in the report was to the effect that " no time 
 should be lost in proposing to Parliament a bill for restoring 
 the union of the Canadas under one legislature, and recon- 
 structing them as one province." On no point did he dwell 
 more strongly than on the absolute necessity that existed for 
 entrusting the government to the hands of those in whom the 
 representative body had confidence.^ He also proposed that 
 the Crown should give up its revenues, except those derived 
 from land sales, in exchange for an adequate civil list, that the 
 independence of the judges should be secured, and that muni- 
 cipal institutions should be established without delay, "as a 
 matter of vital importance." The first immediate result of 
 these suggestions was the presentation to the Imperial Parlia- 
 ment, on the 3rd of May, 1839, of the royal message,- recom- 
 mending a union of the Canadas. In the month of June, in 
 the same year. Lord John Russell introduced a bill to reunite 
 the two provinces, but it was allowed, after its second reading, 
 to lie over for that session of Parliament, in order that the 
 matter might be fully considered in Canada, and more inform- 
 ation obtained on the subject.^ Mr. Poulett Thomson* was 
 appointed governor-general with the avowed object of carry- 
 
 ' " I know not how it is possible to secure harmony in any other way than 
 by administering the government on those principles which have been found 
 pei-fectly etiicacious in Great Britain. I would not impair a single preroga- 
 tive of the Crown ; on the contrary, I believe that the interests of the people 
 of th<.-.se provinces rwjuire tlie protection of prerogatives wliich have not 
 hitherto been exercised. But the Crown must, on the other hand, submit to 
 tlie necessary consequences of representative institutions ; and if it has to 
 carry on the govenmient in unison with a representative body, it nuist consent 
 to (Jirry it on by means of those in whom that representative body has 
 confidence." Page 100 of R. 
 
 *Mr. I'oulett Tliomson's remarks to special council, 11th Nov., 1839. Chris- 
 tie, V. lilC}. 
 
 ^Cluistie, v. •jH!(-!>(). Tlie o|)ini(in of llic British Parliament was decidedly 
 favourable to the bill. 
 
 *Mr. Thomson was a distinguislicd statesman and mcniljcr of the lm|)erial 
 Parliament, and of decidedly advanced views in politics. See Kingsford, x. 
 r)(»!l, olO. Sir John C<tll)orne was governor in tiic interval between Lord Dur- 
 ham's retirement and Mr. Thomson's appointment.
 
 26 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 ing out the policy of the imperial government, and immedi- 
 ately after his arrival at Montreal in November, 1839, he 
 called the special council together, and explained to them "the 
 anxious desire felt by Parliament and the British people that 
 a settlement of the questions relating to the Canadas should 
 be speedily arrived at." The council passed an address in 
 favour of a reunion of the provinces under one legislature, as 
 a measure of indispensable and urgent necessity.^ The gov- 
 ernor-general, in the month of December, met the legislature 
 of Upper Canada, and, after full consideration of the question, 
 both branches passed addresses in favour of union, setting 
 forth at the same time the terms which would be considered 
 most acceptable to the province.^ 
 
 It will be seen tliat the imperial government considered it 
 necessary, as a matter of form, to obtain the consent of the 
 legislature of Upper Canada, and of the special council of 
 Lower Canada, before asking Parliament to reunite the two 
 provinces. Accordingly^, Lord John Russell, in the session of 
 1840, again brought forward his bill entitled, " An Act to 
 reunite the provinces of Upper and Lower Canada, and for 
 the government of Canada,"" which was assented to on the 
 23rd of July, but did not come into effect until the 10th of 
 February in the following year, in accordance with a suspend- 
 ing clause to that effect.'^ The act provided for a legislative 
 
 1 Special Coun. J., Nov. 11, 12, 13, 14. Christie, v. 316-22. 
 
 2 Leg. Coun. J. (1839-40) 14, &c. Leg. Ass. J. (1889-40), 16, 57, 63, 66, 161, 
 164. Christie, v. 326-56. Previously, however, in 1838, a committee of the 
 house of assembly of Upper Canada had declared itself in favour of the pro- 
 posed union. Upp. Can. Ass. J. (1838), 282. 
 
 * 3 and 4 Vict. , c. 35. The Ijill passed with hardly any opposition in the 
 Commons, but it w'as opposed in the Lords by the Duke of Wellington, the 
 Earl of Gosford, the Earl of EUenborough, and others. 
 
 ■'Mr. Poulett Thomson, now created Lord Sydenham, issued his proclama- 
 tion on February 5, 1841, and took the oath on that day as governor-general 
 from Chief Justice Sir James Stuart at Government House in Montreal. Mr. 
 Thomson's title was Baron Sydenham, of Sydenham in the County of Kent, 
 and of Toronto in Canada. (Christie v. 357-8. ) The first parliament of the 
 lonited Canadas was held at Kingston, 14th June, 1841. In 1844 it was 
 removed to Montreal (then a city of 40,000 souls), on address. Mr. Speaker
 
 UNION ACT, mo. 27 
 
 council of not less than twenty members, and for a legislative 
 assembly in whicli each section of the united provinces would 
 be represented by an equal number of members — that is to 
 say, forty-two for each, or eighty-four in all. The speaker of 
 the council was appointed by the Crown, and ten members, 
 including the speaker, constituted a quorum. A majority of 
 voices was to decide, and in case of an equality of votes, the 
 speaker had a casting vote. A legislative councillor would 
 vacate his seat by continuous absence for two consecutive 
 sessions. The number of representatives allotted to each 
 province could not be changed except with the concurrence of 
 two-thirds of the members of each house. The quorum of 
 the assembly was to be twenty, including the speaker. The 
 speaker was elected by the majority, and was to have a 
 casting vote in case of the votes being equal on a question. 
 No person could be elected to the assembly unless he possessed 
 a freehold of lands and tenements to the value of five hundred 
 pounds sterling over and above all debts and mortgages. The 
 Enffiish language alone was to be used in the legislative 
 records.^ A session of the legislature should be held once, at 
 least, every year, and each legislative assembly Avas to have a 
 duration of four years, unless sooner dissolved. Provision 
 was made for a consolidated revenue fund, on which the first 
 
 Jameson and other Upper Canadian legislative councillors left their seats 
 rather than agree to the vote for the change. The legislature remained at 
 Montreal until the riots of 1849, on the occasion of the Rebellion Losses Bill, 
 led to the adoption of the sj'stem, under which the legislature met alternately 
 at Quel>ec and Toronto — the latter city being first chosen by Loixl Elgin. An 
 address to the Queen to select a permanent capital M'as agreed to in 1857, and 
 Ottawa finally chosen. The Canadian parliament assembled for the first time 
 on tlie 8tii June, 1866, in the new edifice constructed in tliat city. The Brit- 
 ish North America Act, 1867, s. 16, made that city the political capital of the 
 Dominion. Turcotte, Ist part, 71, 144 ; 2nd part, 119, 315-16. 
 
 'The address from tlie Upper Canada assembly y)i'aycd for the e(|ual repro- 
 Hcntation of eacli province, a pernianent civil list, the use of tlie Knglish 
 language in all judicial and legislative records, as well as in the debates after 
 a certain period, and tliat tlie public debt of the province bo charged on the 
 joint revenues of the united Canadas. These several propositions, except 
 that respecting the French language, were recommended in the governor- 
 general's messages. Christie, v, 334-48.
 
 28 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 charges were expenses of collection, management, and receipt 
 of revenues, interest of public debt, payment of the clergy, 
 and civil list. The fund, once these payments were made, 
 could be appropriated for the public service as the legislature 
 might think projDer. All votes, resolutions or bills involving 
 the expenditure of public money were to be first recommended 
 by the governor-general.^ 
 
 The passage of the Union Act of 1840 was the commence- 
 ment of a new era in the constitutional history of Canada, as 
 well as of the other provinces. The statesmen of Great 
 Britain had at last learned that the time had arrived for 
 enlarging the sphere of self-government in the colonies of 
 British North America ; and, consequently, from 1840 we see 
 them year by year making most liberal concessions, which 
 would never have been thought of under the old system 
 of restrictive colonial administration. The most valuable 
 result was the admission of the all important principle that 
 the ministry advising the governor should possess the confi- 
 dence of the representatives of the people assembled in 
 parliament. Lord Durham, in his report, had pointed out 
 most forcibly the injurious consequences of the very opposite 
 system which had so long prevailed in the provinces. His 
 views had such influence on the minds of the statesmen then 
 at the head of aflfairs, that Mr. Poulett Thomson (as he 
 informed the legislature of Upper Canada), "received her 
 Majesty's commands to administer the government of these 
 provinces in accordance with the well-understood wishes and 
 interests of the people." ^ Subsequently he communicated to 
 the legislature of the united provinces two despatches from 
 
 ^For Union Act and supplementary Acts, see Houston, 149-185. 
 
 2 In answer to an address from the assembh^ 13th December, 1839. (Christie, 
 V. 353. ) The views of the great body of Reformers (in Upper Canada) appear 
 to have been limited, according to their favourite expression, to making the 
 colonial constitution "an exact transcript" of that of Great Britain; and they 
 only desired that the Crown should, in Upper Canada, as at home, entrust 
 the administration of afif'airs to men possessing the confidence of the 
 assemblv. Lord Durham's R., 58.
 
 UNION ACT, 1840. 29 
 
 Lord John Russell,^ in which the governor-general was 
 instructed, in order "to maintain the utmost possible har- 
 mony," to call to his counsels and to employ in the public 
 service "those persons who, by their position and character, 
 have obtained the general contidence and esteem of the inhab- 
 itants of the province." He wished it to be generally made 
 known by the governor-general that thereafter certain heads 
 of departments would be called upon " to retire from the 
 public service as often as any sufficient motives of public 
 policy might suggest the expediency of that measure." - 
 During the first session subsequent to the message conveying 
 these despatches to* the legislature, the assembly agreed to 
 certain resolutions which authoritatively expressed the views 
 of the supporters of responsible government. It was emphati- 
 cally laid down, as the very essence of the principle, that " in 
 order to preserve between the difierent branches of the pro- 
 vincial parliament that harmony which is essential to the peace^ 
 welfare, and good government of the province, the chief 
 advisers of the representative of the sovereign, constituting a 
 provincial administration under him, ought to be men pos- 
 sessed of the confidence of the representatives of the people 
 thus affording a guarantee that the well-understood wishes 
 and interests of the people, which our gracious sovereign has 
 declared shall be the rule of the provincial government, will, 
 on all occasions, be faithfully represented and advocated."^ 
 
 * Lord J. Russell was colenial secretary from 1S39 to 1S41 ; the office was 
 afterwards held successively from 1841 to 1852 by Lord Stanley, Mr. Glad- 
 stone, an<l Karl CJrey. iSo that all these eminent statesmen assisted in enlarg- 
 ing the sphere of self-government in the colonies. Todd's Pari. Gov. in B. 
 C, 26. 
 
 '^Can. Aks. J. (1841), App. BB. These papers were in response to an address 
 from the assembly of 5th August, 1841. 'i'he instructions to the governor- 
 general repeated substantially the despatches on re.sponsibIe government. 
 Journal of Ass., 20th August, 1841. 
 
 'The rc.xolutions, which were agreed to, M'ere proposed by Mr. Harrison, 
 then provincial secretary in the Draper-Ogdcn ministry, in amendment to 
 others of the same puqwrt, proposed by Mr. Baldwin. The resolution quoted 
 in the text was carried by 56 yeas to 7 nays ; the others passed without 
 division. Jour, of Ass., 1K41, pp. 480-82.
 
 30 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 Nevertheless, during the six years that elapsed after the pas- 
 sage of this formal expression of the views of the large 
 majority in the legislature, " responsible government " did not 
 always obtain in the fullest sense of the phrase, and not a few 
 misunderstandings arose between the governors and the sup- 
 porters of the principle as to the manner in which it should 
 be worked out.^ In 1847, Lord Elgin was appointed gov- 
 ernor-general, and received positive instructions " to act gener- 
 ally upon the advice of his executive council, and to receive 
 as members of that body those persons who niig^it be pointed 
 out to him as entitled to do so by their possessing the confi- 
 dence of the assembly."^ No act of parliament was necessary 
 to effect this important change ; the insertion and alteration 
 of a few paragraphs in the governor's instructions were suffi- 
 cient.^ By 1848 the provinces of Canada, Nova Scotia and 
 New Brunswick* were in the full enjoyment of the system of 
 self-government, which had been so long advocated by their 
 ablest public men ; and the results have proved eminently 
 favourable to their political as well as material development.^ 
 From 1841 to 1867, during which period the new constitu- 
 tion remained in force, many measures of a very important 
 character were passed by the legislature. The independence 
 of parliament was effectually secured, and judges and officials 
 
 'Especialh' during the administration of Lord Metcalfe (1843-45), who 
 believed he could make appointments to office without taking the advice of his 
 council. Dent's Canada since the Union, vol. i. , chap. xvi. 
 
 ^Grey, Colonial Policy, vol. i. 206-34 ; Adderley, 31. See also Colonial Reg., 
 57. Lord John Russell was premier, and Earl Grey, colonial secretary, Avhen 
 Lord Elgin was appointed. Todd, Pari. Gov. in B.C., 2nd ed. , 73. Bourinot's 
 Can. Studies in Comp. Pol., 18 n. 
 
 'Mr. Merivale, quoted in Creasj-'s Constitutions of the Britannic Empire, 
 389. Lord John Russell, in his instructions to Lord Sydenham, expressly 
 stated that it was ' ' impossible to reduce into the form of a positive enactment, 
 a constitutional principle of this nature." Journals of Assembly, 1841, p. 392. 
 
 * Earl Grey was colonial secretary in 1848, when the system was fully in- 
 augurated in the maritime provinces. E. Commons papers, 1847-48, vol. 42, 
 pp. 51-88. 
 
 "For a short history of the beginnings of responsible government, see 
 Bourinot's Canada under British Rule, c. vii.
 
 UNION ACT, mo. 31 / 
 
 prevented from sitting in either house. An elaborate system 
 of municipal institutions was perfected in the course of a few 
 years for Upper and Lower Canada. It had been proposed to 
 make such a system a part of the constitution of 1840/ but 
 the clauses on the subject were struck out of the bill during 
 its passage in the House of Commons, on the ground that 
 such a purely local matter should be left to the new legisla- 
 ture.2 Lord Sydenham, who had very strong opinions on the 
 subject, directed the attention of the legislature in the first 
 session to the necessity of giving a more extended application 
 to the principles of local self-government, which already 
 prevailed in the province of Upper Canada; and the result 
 was the introduction and passage of a measure in that direc- 
 tion.^ At this time there was already in force an ordinance 
 passed by the special council to establish a municipal system 
 in Lower Canada — a measure which created much dissatisfac- 
 tion in the province. Eventually the ordinance was revoked, 
 and a system established in both provinces which met with 
 general approval.^ This measure demands special mention, 
 even in this chapter, inasmuch as it has had a most valuable 
 effect in educating the mass of the people in self-government, 
 besides relieving the legislature of a large amount of business, 
 which can be more satisfactorily disposed of in town or county 
 organizations, as provided for by law. In fact, the municipal 
 system of Canada lies at the very basis of its parliamentary 
 institutions. 
 
 Among the distinguishing features of the important legisla- 
 tion of this period was the passage of a measure which may 
 be properly noticed here, since it disposed of a vexatious 
 
 ' Ix>rfl Diirliam ho proposed it, R. 109. (Sorope's Life of Lord Sydcnlmni, 
 194.) Tliu .'nldrcKs of tin; assembly of Upper Canada to the governor-general 
 in 1840 called attention to the necessity of introducing a system into Lower 
 Canada, in order to provide for local taxation. Christie, v. 347, 356. 
 
 'Bourinot's Loc. fJov. in Canada, 32. 
 
 'Introduced hy Mr. Harrison ; 4 & .'j Vict., c. 10. 
 
 *Ree liourinot'.s Loc. Oov. in Canada; Turcotte, 1st Part, 07, ISO; 2nil 
 Part, 200, 384. Also, Cons. Stat, of Upper Canada, c, 54 ; of Lower Canada, 
 0.24.
 
 32 FARLIAMENTAEY INSTITUTIONS IN CANADA. 
 
 question which had arisen out of the provisions of the Con- 
 stitutional Act of 1791. It will be seen by reference to the 
 summary given elsewhere of that act that it reserved certain 
 lands for the support of a Protestant clergy. The Church of 
 England always claimed the sole enjoyment of these lands, 
 and in 1835, Sir John Coiborne established a number of 
 rectories which gave much offence to the other Protestant 
 denominations, who had earnestly contended that these lands, 
 under a strict interpretation of the law, belonged equally to 
 all Protestants.^ The Church of Scotland, however, was the 
 only other religious body that ever received any advantage 
 from these reserves. The Reform party in Upper Canada 
 made this matter one of their princijDal gi'ievances, and in 
 1839 the legislature passed an act to dispose of the question, 
 but it failed to receive the approval of the imperial authorities. 
 It was not until 1853 that the British Parliament recognized 
 the right of the Canadian legislature to dispose of the clergy 
 reserves on the condition that all vested rights were respected. 
 In 1854, the Canadian legislature passed a measure making 
 existing claims of the clergy a first charge on the funds, and 
 dividing the balance among the several municipalities in the 
 province according to population. Consequently, so far as 
 the act of 1791 attempted to establish a connection between 
 Church and State in Canada, it signally failed.^ 
 
 Nor can the writer well leave out a brief reference to the 
 abolition of the seigniorial tenure, after an existence of over 
 two centuries, since the system deeply affected in many ways 
 the social and political life of the French Canadian people. 
 In the days of the French regime, this system had certain 
 advantages in assisting settlement and promoting the comfort 
 
 1 In fact, in 1840, the highest judicial authorities of England gave it as their 
 opinion that the words "a Protestant clergy" in the act of 1791 included 
 other clergy than those of the Church of England. Mirror of P., May 4, 
 1840 
 
 2 See Lord Durham's R., 66, 83; Turcotte, ii., 1.37, 234; Cons. Stat, of 
 Canada, c. 25. The measure of 1854 (18 Vict., c. 2) was in charge of 
 Attorney-General (afterwards the Rt. -Hon. Sir John) Macdonald, then a mem- 
 ber of the McXab-Morin administration. Leg. Ass. J. (1854-5) 193 et seq.
 
 UNION ACT, mo. 33 
 
 of the inhabitants ; but, as Lower Canada became filled up by 
 a large population, this relic of feudal times became altogether 
 unsuited to the condition of the country, and it was finally 
 decided to abolish it in the session of 1854.^ 
 
 It was during this period that the Canadian legislature dealt 
 with the civil service, on whose character and ability so much 
 depends in the working of parliamentary institutions. During 
 the time when responsible government had no existence in 
 Canada, the legislature had virtually no control over public 
 ofiicials in the different provinces, but their appointment 
 rested with the home government and the governors. In the 
 appointments, Canadians were systematically ignored, or a 
 selection made from particular classes, and the consequence 
 was the creation of a bureaucracy which exercised a large 
 influence in public afiairs, and was at the same time inde- 
 pendent of the popular branch. When self-government was 
 entrusted to the provinces, the British authorities declared 
 that they had " no wish to make the provinces the resource 
 for patronage at home," but, on the contrary, were earnestly 
 intent on "giving to the talent and character of leading 
 persons in the colonies advantages similar to those which 
 talent and character employed in the public service obtain in 
 the United Kintrdom."- But at the same time the British 
 government, speaking tlirough the official medium of the 
 secretary of state for the colonies, always pressed on the 
 Canadian authorities the necessity of giving permanency and 
 stability to the public service, by retaining deserving public 
 
 ^ Mr. Dnimmond, attorney-general in tlie McNab-Morin administration, 
 introtluf'cd the hill which became law, 18 Vict., c. 3. A bill in tiie session of 
 XH't'.i had been thrown out by the legislative council. For historical account 
 of this tenure see Gameau, i., chap. iii. ; I'arkman's Old Regime, chap. xv. ; 
 Turcottc, ii., 101, 20.3, 234; Cons. Stat, of Lower Canada, chap. xli. Tiic 
 number of fiefs at the time of the pas.sage of the Act of 1854, was ascertained 
 to be 220, possessed by 160 seifjneurs, and about 72,000 rentiers. The entire 
 superficial area of these properties comprised 12, 822, .'503 acres, al)Out one-half 
 of which was found under rental. Garneau, i., ISo. Report of Seigniorial 
 Commission. 
 
 'Lord John Russell, 1839. Journals of Ass. U.C, App. B.B. 
 3
 
 34 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 officers without reference to a change of administration.' 
 The consequence of observing this valuable British principle 
 has been to create a large body of public servants, on whose 
 ability and intelligence depends, in a large measure, the easy 
 working of the machinery of government. According as the 
 sphere of government expanded, and the duties of administra- 
 tion became more complicated, it was found necessary to 
 mature a system better adapted to the public exigencies. The 
 first important measure in this direction was the bill of 1857, 
 which has been followed by other legislation in the same 
 direction of improving the machinery of administration.^ 
 
 But in no respect have we moi'e forcible evidence of the 
 change in the colonial policy of the imperial government than 
 in the amendments that were eventually made in the Union 
 Act of 1840. All those measures of reform for which Cana- 
 dians had been struggling during nearly half a century, were 
 at last granted. The control of the public revenues and the 
 civil list had been a matter of serious dispute for years 
 between the colonies and the parent state ; but, six years after 
 the union, the legislature obtained complete authority over the 
 civil list, with the sanction of the imperial government, which 
 gave up every claim to dispose of provincial moneys.^ About 
 
 1 LordJohn Russell, 1839. App. B.B., Jour, of Ass., 1841. Earl Grey to 
 Lieut. -Governor Harv'ey of Nova Scotia, March 31, 1847. E. Com. P., 1847- 
 48, vol. 42, p. 77. In Nova Scotia, the advice of the British government was 
 never practically followed, and public officers were for years frequently 
 changed to meet the necessities of politicians. See despatch of the Duke of 
 Newcastle to Governor Gordon, Feb. 22, 1862, New Brunswick Jour., 1862, p. 
 192. 
 
 *Mr. Spence, when postmaster-general in the Tache-Macdonald administra- 
 tion, introduced the act of 1857, appointing permanent deputy heads and 
 grades in the departments. 20 Vict., chap. 24. Cons. Stat, of Canada, c. 11. 
 See Reports of Civil Service Commission, presented to Canadian Parliament, 
 1880-81 and 1882, in which the present condition of the service is fully set 
 forth, Sess. Pap., No. 113 (1880-81), and Sess. Pap., No. 32 (1882). In 1882, 
 Parliament passed an act to improve the efficiency of the service (45 Vict. , c. 
 4), which has been amended by later legislation. See Rev. Stat, of Canada, 
 c. 17. 
 
 *Ss. 50 to 57, respecting con.solidated revenue fund and charges thereon, 
 and with the schedules therein referred to, were repealed by the imperial act
 
 UNION ACT, mo. 35 
 
 the same time, the imperial government conceded to Canada 
 the full control of the post-office, in accordance with the 
 •wishes of the people as expressed in the legislature.^ The 
 last tariff framed by the imperial parliament for the British 
 possessions in North America was mentioned in the speech at 
 the opening of the legislature in 1842,- and not long after that 
 time, Canada found herself, as well as the other provinces, 
 completely free from imperial interference in all matters 
 affectincr trade and commerce. In 1846, the British colonies 
 in America were authorized by an imperial statute^ to reduce 
 or repeal by their own legislation duties imposed by imperial 
 acts upon foreign goods imported from foreign countries into 
 the colonies in question. Canada soon availed herself of this 
 privilege, which was granted to her as the logical sequence 
 of the free trade policy of Great Britain, and, from that time 
 to the present, she has- been enabled to legislate very freely 
 with regard to her own commercial interests. In 1849, the 
 imperial parliament, in response to addresses of the legisla- 
 ture, and memorials from boards of trade and merchants in 
 Canada, repealed the navigation laws, and allowed the river 
 St. Lawrence to be used by vessels of all nations. With the 
 repeal of those old laws, Canadian trade and shipping received 
 a valuable impulse.* 
 
 10 and 11 Vict., c. 71, and the provincial act 9 Vict., c. 114, was brought into 
 force, and duly provided a permanent civil list in place of that arranged bj' 
 the imperial authorities. See Cons. Stat, of Canada, c. 10. 
 
 'See speech of Lord Elgin, sess. of 1847, Journal of Ass., p. 7 ; Can. Stat. 
 13 and 14 Vict., c. 17, s. 2, and Cons. Stat., c. 31, s. 2, under authority of 
 imiJC'rial act, 12 and 13 Vict., o. 66. 
 
 »Ab8. Jour., 1842, p. 3. 
 
 Mrnp. Slat. 9 an<l 10 Vict., c. 94. Todd, Pari. Oov. in B. C, 222-224. 
 See speech of Lfjrd Klgiii, 1H47, Jour. 7, in which he refers to the power 
 given to the colonial legislatures to repeal differential duties heretofore im- 
 pf>s4'd by the colonies in favour of British produce. In response the legis- 
 lature passe<l, 10 and 11 Vict., c. 30, the first measure necessary to meet " the 
 altered state of our colonial relations with the mother country." Speech of 
 Speaker of Assembly in presenting Supply Bill ; Jour. 218. 
 
 *Leg. A.S.S. J. (1S49), 43, 48, and App. C. ; Imp. Act, 12 and 13 Vict., c. 29, 
 8. .5. The memorandum of the Cana<lian government sets fortli very clearly
 
 36 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 No part of the constitution of 1840 gave greater offence to 
 the French Canadian population than the clause restricting 
 the use of the French language in the legislature. It was 
 considered as a part of the policy, foreshadowed in Lord 
 Durham's report/ to denationalize, if possible, the French 
 Canadian province. The repeal of the clause in 1848 was one 
 evidence of the harmonious operation of the union, and of 
 the better feeling between the two sections of the population.^ 
 Still later, provision was made for an elective legislative 
 council, so long and earnestly demanded by the old legislature 
 of Lower Canada. In 1854 the imperial parliament passed, 
 in response to an address of the legislative assembly, an act to 
 empower the legislature to alter the constitution of the legis- 
 lative council.^ In 1856, the Canadian legislature passed a 
 bill providing for an elective upper house ; the province was 
 divided into 48 electoral divisions, 24 for each section ; twelve 
 members were to be elected every two years ; every councillor 
 was to hold real estate to the value of $8,000 within his 
 electoral district. The mxcmbers were only to remain in the 
 council for eight years, but could of course be re-elected. Ex- 
 
 that since it was no longer the policy of the empire to give a preference to 
 colonial products in the markets of the United Kingdom, no reason could pos- 
 sibly exist for monopolies and restrictions in favour of* British shipping. See 
 Bourinot's Canada under British Rule, pp. 87, 189, for allusions to Canada's 
 unfortunate position after England's adoption of free trade, and the derange- 
 ment of colonial trade that existed until the British navigation laws were 
 repealed and foreign shipping allowed access to the St. Lawrence. 
 
 ^ ' ' Without effecting the change so rapidly or so roughly as to shock the 
 feelings and trample on the welfare of the existing generation, it must hence- 
 forth be the first and steady purpose of the British government to establish 
 an English population, with English laws and language, in this province, and 
 to trust its government to none but a decidedlj' English legislature." P. 110, 
 et seq. 
 
 ^Imp. Stat. 11 and 12 Vict. c. 56, s. 1. See Houston, 175. 
 
 2 Leg. Ass. J. (1853), 944 ; Imp. Act, 17 and 18 Vict., c. 118. In the course 
 of the debate the Duke of Newcastle said : " The proper course to pursue was 
 to legislate no more for the colonies than we could possibly help ; indeed, he 
 believed that the only legislation now required for the colonies consisted in 
 undoing the bad legislation of former years." 134 E. Hans. (3) 159. See Imp. 
 Stat. 22 and 23 Vict. , c. 10, with reference to speaker of L. C.
 
 FEDERAL UNION OF TEE PROVINCES. 37 
 
 istino- members were allowed to retain their seats during their 
 lives.i The speaker was appointed by the Crown from the 
 council until 1862, when he was elected by the members from 
 among their own number.- The first election of councillors 
 under the new act took place in the summer of 1856. 
 
 VI. Federal Union of the Provinces.— The union between 
 Upper and Lower Canada lasted until 1867, when the prov- 
 inces of British North America were brought more closely 
 tocrether in a federation, and entered on a new era in their 
 constitutional history. For many years previous to 1865, the 
 administration of government in Canada had become sur- 
 rounded with political difficulties of a very perplexing 
 character. The union had not at first been viewed with 
 favour by the majority of the French Canadians, who 
 regarded it as a scheme to anglicize their province in the 
 course of time. One of their grievances^ was the fact that 
 the act gave to each province the same representation in the 
 legislature, though Lower Canada had in 1840 the greater 
 population."* But the large immigration that flowed into 
 Upper Canada for many years after the union soon gave the 
 
 ' 19 and 20 Vict. , c. 140; Cons. Stat, of Canada, c. 1. Mr. Caiichon, com- 
 missioner of crowTQ lands, in the McNab-Tache administration, introduced 
 the bill in the assembly. 
 
 «Can. Stat., 23 Vict., c. 3, repealed s. 26 of 19 and 20 Vict., c. 140. The 
 act made also provision for supplying the place of the speaker in case of his 
 being obliged to leave the chair from illness, etc. The first election took place 
 in 1802, March 20, when Sir Allan McNab was chosen speaker. 
 
 ^See afldrcss of Mr. Lafontaine (Turcotte, i. 60), in which he laid before 
 the electors of Terrel>i)nne iiis opinion as to the injustice of tlie Union Act : 
 " L'union est un actc d'injustice ct de despotisme en ce qu'elie nous est 
 im{K>s^ san.s notre consentcment ; en ce qu'elie prive le Bas-Canada du 
 nombre legitime dc ses rcpr^sentanta," etc. 
 
 ••In 1S.19, Lord Durliam gave tlie population of Upper Canada at 400,000, 
 and tliat of Lower Canada at GO<J,000, of wliom 450,000 were Frcncli. The 
 census compiler of 1S70 gives the population of Upper Canada in 1840, at 
 432,159; of Nova Scotia, in 18.38, 202,. 575 ; of New Brunswick, in 1840, 
 1.")(1J02 ; of Assiniboia, 7,704 ; of Prince Edward Island, 47,042, in 1S41. No 
 figiues are given for Lower Canada in 1840, l)nt we fin<l llie number was 
 697,084, in 1844. The figures given by Lord Durham were as accurate as they 
 could be maile at the time.
 
 38 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 preponderance of population to that province, where in the 
 course of no long time a demand was made for a representa- 
 tion in the legislature according to the population. This 
 demand w^as always strenuously resisted by the Lower 
 Canadian representatives as unjust in view of the conditions 
 under which they entered the union. The act itself afforded 
 them sufficient protection, inasmuch as it embodied the pro- 
 viso^ that the governor could not assent to any bill of the 
 legislature to alter the representation, unless it should have 
 been passed with the concurrence of two-thirds of the 
 members in each house. This clause was, however, suddenly 
 repealed by the imperial act of 1854, empowering the legisla- 
 ture to alter the constitution of the legislative council, but no 
 practical result ever followed in respect to the representa- 
 tion.2 
 
 It is interesting to note that one of the expedients by 
 which it was hoped to arrange the political conflict between 
 the two sections was the principle of a double majority. In 
 the course of the first decade after the union, prominent 
 public men laid it down as necessary to the harmonious opera- 
 tion of the constitution, that no administration ought to 
 continue in power unless it was supported by a majority from 
 each section of the united provinces.^ As a matter of justice, 
 it was urged, no measure touching the interests of a particular 
 province should be passed, except with the consent of a 
 
 ^ .3 and 4 Vict. , c. 35, s. 26. This clause was added to the bill by the 
 British ministry to protect the French Canadian representation. Garneau, ii. 
 480. \ 
 
 ^17 and 18 Vict., c. 118, s. 5. The legislature had never asked an amend- 
 ment in this direction, and the history of the repeal is a mystery. Garneau, 
 in the edition of 1859, accused Sir Francis Hincks of having been the inspiring 
 cause : but in a pamphlet published in 1877, the latter denied it most 
 emphatically. In a subsequent edition, the onus of the change is placed on 
 Mr. Henry John Boulton, a member of the legislative assembly, who was in 
 England in 1854, about the same time as Sir F. Hincks. Garneau (ed. of 
 1882), iii., 275, 376. In 1854, the total number of representatives in the 
 assembly was 130, 65 from each province. 16 Vict., c. 152. 
 
 3 Messrs. Lafontaine and Caron to Mr. Draper, 1845. Turcotte, i., 202-10.
 
 FEDERAL VXION OF THE PROVINCES. 39 
 
 majority of its representatives. ^ The principle had more or 
 less recognition in the government and legislature after 1848.- 
 The very formation of the ministry, in which each province 
 was equally represented, was an acknowledgment of the 
 principle. But this acknowledgment, it was contended, was 
 of no substantial value so long as the executive councillors 
 taken from either section of the province did not possess the 
 contidence of the majority of the representatives of that 
 section in the assembly.^ The principle, however specious in 
 theory, was not at all practicable in legislation, and even its 
 most strenuous supporters too often found that it could not be 
 conveniently carried out in certain political crises. Its ob- 
 servance was always, to a great extent, a matter of political 
 convenience, and it was at last abandoned even by its former 
 advocates, who had urged it as the only means of doing justice 
 to each province, and preserving the equality of representa- 
 tion provided in the constitution of 1840.* 
 
 The demands of the representatives from Upper Canada for 
 additional representation were made so persistently that the 
 time arrived when the administration of public affairs became 
 surrounded with the i^ravest embarrassment. Parties at last 
 were so equally balanced on account of the antagonism 
 between the two sections, that the vote of one member might 
 decide the fate of an administration, and the course of legisla- 
 
 ' Mr. Baldwin resigned in 1851 on a vote of the Upper Canada representa- 
 tives a<lv(Tse to tlic court of chancery, Turcotte, ii., 171-3. See remarks of Sir 
 Joiin A. Macdonald, Confederation Debates, 30. 
 
 *See resolution moved by Mr. (now Sir Hector) Langevin, 19th of May, 
 18o8. 
 
 ■Sec amendment moved by Mr. Cauchon to Mr. Thibaudeaii's motion. 
 Jour. Ah.s. (1858) 145, 876. Also Jh. (1856), 566. 
 
 *Mr. J. Sandfield Macdonald was always one of its warmest supporters, on 
 the ground that it did away with the iiccessit}' of a change in tiio rcjjrcsenta- 
 tion, as advocated by Mr. Brown and liis followers fr(jni Upper Canada ; hut 
 ho virtually gave it uf) on tiie separuto hoIkjoI (jucstion in ISO.'?, wlicn a 
 majority of tlie reprcscntativea of his own pnjvince pronounced against a 
 measure to which he was pledged as the head of the Macdonald-Sicotte 
 Ministry. Turcotte, ii., 477-487. See Dent, ii., 429.
 
 40 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 tion for a year or series of years. From the 21st of May, 
 1862, to the end of June, 1864, there were no less than five 
 different ministries in charge of the public business.^ Legis- 
 lation, in fact, was at last practically at a dead-lock, and it 
 became an absolute political necessity to arrive at a practical 
 solution of difficulties, which appeared to assume more gravity 
 with the progress of events. It was at this critical juncture 
 of affairs that the leaders of the government and opposition, 
 in the session of 1864, came to a mutual understanding, after 
 the most mature consideration of the whole question. A 
 coalition government was formed on the basis of a federal 
 union of all the British American provinces, or of the two 
 Canadas, in case of the failure of the larger scheme.^ The 
 union of the provinces had been discussed more than once in 
 the legislatures of British North America since the appearance 
 of Lord Durham's report, in which it was urged with great 
 force tliat " it would enable the provinces to co-operate for all 
 common purposes, and above all, it would form a great and 
 powerful people, possessing the means of securing good and 
 responsible government for itself, and which, under the pro- 
 tection of the British Empire, might, in some measure, coun- 
 terbalance the preponderant and increasing influence of the 
 United States on the American continent." Lord Durham 
 even went so far as to recommend that the " bill should 
 contain provisions by which any or all of the other North 
 American colonies may, on the application of the legislature, 
 be, with the consent of the two Canadas or their united 
 legislature, admitted into the union on such terms as may be 
 agreed on between them."^ The expediency of a union was 
 
 »Sir J. A. Macdouald. Con. Deb., 26 ; Sir E. P. Tache, Jb. 9. 
 
 ''Sir J. A. Macdonald, Con. Deb., 26-27. "The opposition and government 
 leaders arranged a larger and a smaller scheme ; if the larger failed, then they 
 were to fall back upon the minor, which provided for a federation of the two 
 sections of the province." Sir E. P. Tache, Jb. 9. 
 
 ^Rep., 116-21. He preferred a legislative union. See for various schemes 
 of union, Brymner's report on Canadian archives for 1890, pp. 23-24 ; and 
 Bourinot's Canada under British Rule, chap, viii., sec. 1. The first resolution 
 in favour of union was passed in 1854 by the Assembly of Nova Scotia. For
 
 FEDERAL UNION OF THE PROVINCES. 41 
 
 made a part of the programme of the Cartier-Macdonald 
 government in 1858, and expressly referred to in the gover- 
 nor's speech at the close of the session;^ but no practical 
 result was ever reached until the political necessities of the 
 provinces forced them to take up the question and bring it to 
 a satisfactory issue. It was a happy coincidence that the 
 legislatures of the lower provinces were about considering a 
 maritime union at the time the leading statesmen of Canada 
 had combined to mature a plan of settling their political 
 difficulties. The Canadian ministry at once availed them- 
 selves of this fact to meet the maritime delegates at their 
 convention in Charlottetown, and the result was the decision 
 to consider the question of the larger union at Quebec. 
 Accordingly, on the 10th of October, 18C4, delegates from all 
 the British North American provinces assembled in conference, 
 in " the ancient capital," and after very ample deliberations 
 during eighteen days, agreed to seventy-two resolutions, which 
 form the basis of the Act of Union.- These resolutions were 
 formally submitted to the legislature of Canada in January, 
 
 speeches of Hon. ^Messrs. Howe and Johnston on that occasion, see Bourinot's 
 Builders of Nova Scotia, App. I and J. 
 
 iConf. Deb., Sir G. E. Cartier, 53; Ass. J. (1858) 1043. See also Mr. 
 Brown's speech (110-24), in which he claimed that the essence of the federa- 
 tion measure was found in the "joint authority" resolutions of a Reform 
 Convention of 1859. 
 
 *For historical accounts of initiation of confederation see Gray, Confedera- 
 tion of Canada, vol. i. ; Turcotte, ii., 518-59; Bourinot's Canada under British 
 Rule, chap. viii. ; Life of Sir John Macdonald, by Joseph Pope ; Pope's Con- 
 federation Documents ; Confederation Debates, 18G5, especially speeches of 
 Sir E. P. Taclie, Sir J. A. Macdonald, Sir G. I']. Cartier, Hon. Geo. Brown and 
 Sir A. Campbell. Canada was represented by 12 delegates, 6 for each pro- 
 vince, New Brunswick by 7, Nova Scotia by 5, P. E. Island by 7, and New- 
 foundland by 2 ; eacli province had a vote, and the convention sat witii closed 
 doors. The delegates : Canada, Sir E. P. Tache, Messrs. J. A. Macdonald, 
 Cartier, Brown, Gait, Campbell, Chapais, McGee, Langevin, Mowat, Mc- 
 Dougall and Cockburn. Nova Scotia, Messrs. Tupper, Heniy, McCully, 
 Arcliibald and Dickey. New Brunswick, Messrs. Tillcy, Mitcliell, Fisher, 
 Steeves, Gray, Cliandlcr and Johnson. P. K. Island, Messrs. Gray, Coles, 
 Haviland, Palmer, Macdonald, Whalen and Pope. Newfoundland, Messrs. 
 Shea and Carter.
 
 42 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 1865, and after an elaborate debate which extended from the 
 3rd of February to the 14th of March, both houses agreed by 
 very large majorities to an address to her Majesty praying 
 her to submit a measure to the imperial parliament " for the 
 purpose of uniting the provinces in accordance with the pro- 
 visions of the Quebec resolutions."^ Some time, however, had 
 to elapse before the union could be consummated, in consequence 
 of the strong opposition that very soon exhibited itself in the 
 maritime provinces, more especially to the financial terms of 
 the scheme. In New Brunswick, there were two general 
 elections during 1865 and 1866, the latter of which resulted 
 in the return of a legislature favourable to union, and finally 
 to the adoption of the measure. The question was never 
 submitted to the people at the polls in Nova Scotia, but the 
 legislature eventuallj^, after months of hesitation, agreed to 
 the union, in view of the facts that it was strongly approved 
 by the imperial government as in the interests of the Empire, 
 that both Canada and New Brunswick had given their con- 
 sent, and that it was proposed to make such changes in the 
 terms as would be more favourable to the interests of the 
 maritime provinces. The result of the action of the two 
 provinces in question was another conference at London in 
 the fall of 1866, when a few changes were made in the direc- 
 tion of maritime interests, chiefly in the financial terms, and 
 without disturbing the important features of the Quebec 
 resolutions, to which Canada had already pledged herself in 
 the session of 1865.^ The provinces of Canada, Nova Scotia 
 
 ^The address was agreed to in the legislative council by 45 contents to 15 
 non-contents, Jour. (1895, 1st sess. ), 130 ; in the assembly by 91 yeas to 33 
 nays, Jour., 192-3; Confed. Debates, 1865, p. 962. Sir E. V. Tache intro- 
 duced the resolutions in the council ; Atty.-fJen. (now Sir J. A.) Macdonald 
 moved, and Atty. -Gen. (afterwards Sir) G. E. Cartier, seconded them in the 
 assembly. Four members of the government went to England after the 
 session of 1865, in reference to confederation, the cession of the Northwest, 
 and other important questions. Jour. 1865, 2nd sess., 7-16 ; Bourinot's 
 Canada under British Rule, pp. 210, 211. 
 
 ^Tlie Westminster Palace Conference was held in London, in December, 
 1866, and the result was the Union Act of 1867.
 
 FEDERAL UXIOX OF THE PROVINCES. 43 
 
 and New Brunswick, being at last in full accord, through the 
 action of their respective legislatures, the plan of union was 
 submitted on the 12tli of February, 1867, to the imperial 
 parliament, where it met with the warm support of the 
 statesmen of all parties, and passed without amendment in 
 the course of a few weeks, the roj-al assent being given on 
 the 29th of March.^ The new constitution came into force on 
 the first of July, 1867, and the first pai'liament of the united 
 provinces met on November of the same year- — the act 
 requiring it to assemble not later than six months after the 
 union.^ 
 
 The confederation, as inaugurated in 1867, consisted only of 
 the four provinces of Ontario, Quebec, Nova Scotia and New 
 Brunswick.^ B}^ the 14Gth section of the Act of Union, 
 provision was made for the admission of other colonies on 
 addresses from the parliament of Canada, and from the respec- 
 tive legislatures of Newfoundland, Prince Edward Island, and 
 British Cohnnbia. Rupert's Land and the Northwest Terri- 
 torv mi<;ht also at any time be admitted into the union on the 
 address of the Canadian P.irliament. The acquisition of the 
 Northwest Territory had been for years the desire of the 
 people of Canada, and was the subject of consultation witli 
 
 ' Imp. Act 30 and 31 Vict., c. 3. " An Act for the Union of Canada, Nova 
 Scotia and New lirunswick, and tlie government thereof, and for purposes 
 connected tlierewith." Lord Carnarvon, tlien secretary of state for the 
 colonies, ha<I charge of the measure in the Lords. Mr. Adderley, under- 
 secn-Uiry, in tlie Ci)mnions. 18.5 E. Hans. 3 (Lords), 557, 804, 1011 ; (Com- 
 mons) lUA, 1310, 1701. 
 
 * Her Majesty's proclamation, giving effect to the Union Act, was issued on 
 the 22nd May, 1807, declaring that on and after tlio 1st July, 1867, the 
 provinffH of Canada, Nova Scotia and New IJrunswick sliall form and he (ine 
 I)(iminion (mcc infra, p. 47, ".), unih^r tiie name of Canada. The proclamation 
 also contained names of first senators. Join-. House of Commons of Canada, 
 v-vi. n. N. A. Act, l8f)7, ss. 3 and 25. Lord Mon<k w.is the first governor- 
 gj-ncral of tin; Dominion. Com. Jour. (1807-8), vii. I'arliament met on the 
 7th NovemlK;r, anrl Hr)n. J. Cockliurn was elected first speaker of the 
 Commons. Hon. J. Cauchon was first speaker of the iSenato. 
 
 •fi. N. A. Act, 8.S. 19. (App. A infra). 
 
 •B. N. A. Act, sa. 5-7. (App. A infra).
 
 44 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 the imperial government in 1865, when Canadian delegates 
 went to England.^ During the first session of the parliament 
 of Canada, an address was adopted praying her Majesty to 
 unite Rupert's Land and the Northwest Territory to the 
 Dominion.'^ Tliis address received a favourable response, but 
 it was found necessary in the first place to obtain from the 
 imperial parliament authority to transfer to Canada the ter- 
 ritory in question. An act was passed in the month of July, 
 1868,^ and in accordance with its provisions, negotiations took 
 place between Canadian delegates a.nd the Hudson's Bay 
 Company for the surrender of the Northwest to the Dominion. 
 An agreement was finally arrived at for the payment of 
 £300,000 sterling on condition of the surrender of Rupert's 
 Land to the Dominion — certain lands and privileges at the 
 same time being reserved to the company. The terms were 
 approved by the Canadian parliament in the session of 1869,^ 
 and an act at once passed for the temporary government of 
 Rupert's Land and the Northwest Territories when united 
 with Canada.^ This act provided for a lieutenant-governor 
 and council, to make provision for the administration of 
 justice, and establish such laws and ordinances as might be 
 necessary for peace and good government in the Northwest 
 Territories. In the autumn of 1869 an order-in-council was 
 passed for the appointment of a provisional lieutenant-gov- 
 ernor of the territories, but the outbreak of an insurrection 
 
 ^Leg. Ass. J., 1865, 2n(l sess., 12-13. For papers on the subject of the 
 acquisition of the territory, see Can. Sess. P., 1867-8, Xo. 19, and p. 367 of 
 Journals. 
 
 2 Can. Com. J. (1867-8), 67. 
 
 3Imp. Stat., 31 and 32 Vict., c. 105 (Can. Stat, for 1869), entitled "An act 
 for enabling her Majesty to accept the surrender upon terms of the lands, 
 privileges and rights of the governor and company of adventurers of England 
 trading into Hudson's Bay, and for admitting the same into the Dominion of 
 Canada. " 
 
 *Can. Com. J. (1869), 149-56, in which the negotiations for the transfer are 
 set forth in the address to her Majesty, accepting the terms of agreement for 
 the surrender of the territory. 
 
 5 Can. Stat. 32 and 33 Vict., c. 3.
 
 FEDERAL UNION OF THE PROVINCES. 45 
 
 among the French half-breeds prevented the former from 
 exercising any executive functions.^ It was not until the 
 appearance of an armed force in the country in the fall of 
 1870 that the remnant of the insurgents fled from the terri- 
 tory; but, during the twelve months that preceded, the 
 territories were formally transferred to the Dominion, and 
 means taken by the Canadian authorities to arrange terms on 
 which the people of the Red River might enter confederation. 
 In the session of 1870, the Canadian parliament passed an act^ 
 to establish and provide for the government of Manitoba — a 
 new province formed out of the Northwest Territory, to 
 which was given representation in the Senate and House of 
 Commons. Provision was also made for a local or provincial 
 government on the same basis as existed in the older 
 provinces. On the SOtli of June, 1870, by an imperial order- 
 in-council,^ it was declared that after the loth of July, 1870, 
 the Northwest Territory and Rupert's Land should form part 
 of the Dominion of Canada. The legislature of Manitoba was 
 elected in the early part of 1871, and the provincial govern- 
 ment regularly and peacefully established.^ The members for 
 the House of Commons took their seats in the session of the 
 same year,^ — the new' senators in the session of 1872.^ When 
 I come to consider the provincial constitutions {infra, p. 71) 
 I shall refer to the nature of the local government of Mani- 
 
 ^ Hon. W. McDougall. He was not to act in an official capacity until he 
 was notified of tlie legal transfer of tlie countrv' to Canada ; but he appears to 
 have di8oV>eyed his instructions and attempted to set up a government by a 
 coup lie vKiin before the formal transfer. >Sce Bourinot's Canada under 
 British Rule, pp. 227, 228. Pope'.s Life of Sir J. Macdonald, ii. 49-55. 
 
 '.'i3 Vict., c. 3. The limits of the province were enlarged in 1881 ; Can. Stat. 
 44 Vict, c. 14. See Rev. Stat, of Can., c. 47. Also Man. Stat., 44 Vict., 
 c.c. 1, 12, 1.3, 14. Also, Imp. Stat. 34-35 Vict., c. 28. 
 
 8 In accordance with s. 146, B. N. A. Act, 1867 ; Canada Stat. 1872, p. Ixiii. 
 
 * Annual Register, 1878, pp. 18-19. 
 
 *Can. Com. .J. (1H71 ), 154, 221, 226. Only three members were returned ; a 
 new election in one constituency being requisite on account of a tie. Jour. 
 152. 
 
 «Sen. J. (1872), 18.
 
 46 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 toba, as well as to the statutory provisions made by the 
 Dominion parliament for the administration of the Northwest. 
 
 In accordance with addresses from the Canadian parlia- 
 ment, and the legislative council of British Columbia, that 
 colony was formally admitted into the confederation by 
 imperial order-in-council declaring that from and after tlie 
 20t]i of July, 1871, the colony should form part of the 
 Dominion. The terms of union provided for representation 
 in the Senate and House of Commons, and responsible gov- 
 ernment in the province, as well as for tlie construction of a 
 transcontinental railway.^ The members for the province 
 took their seats in the Senate and House of Commons during 
 the session of 1872.- 
 
 The province of P. E. Island had been represented in the 
 Quebec conference of 1864, but, owing to the opposition that 
 existed to the union for some years, it was not until the first 
 session of 1873 that both the parliament of Canada and the 
 legislature of the island passed addresses for the admission of 
 the province into the confederation on certain conditions 
 which included representation in the Senate and House of 
 Commons, and the continuance of the local government on 
 the same basis as in the other provinces.^ A bill was also 
 passed during the same session, — in anticipation of her 
 Majesty's government taking the necessary steps to admit the 
 island — providing that certain acts should come into force in 
 the province as soon as it was united to Canada.^ By an 
 imperial order-in-council, it was declared that from and after 
 the first of July, 1873, the colony should form part of the 
 Dominion.^ The members for the two houses took their seats 
 for the first time during the second session of 1873.^ 
 
 iCan. Com. J. (1871), 193-99 ; Pari. Deb., 1871. Can. Stat, for 1872, Ixxxiv. 
 Also as to preparatory steps, Can. Sess. Pap., No. 59, 1867-8, pp. 3-7. 
 
 *Sen. J. (1872) 18 ; Com. J. (1872) 4. The elections for the Commons were 
 held in accordance with 34 Vict., c. 20. 
 
 'Can. Com. J. (1873) 401-403. 
 
 4 36 Vict., c. 40. 
 
 6 Can. Stat, for 1873, p. ix. 
 
 6 Sen. J., 1873, 2nd session, 9. Com. J., lb. 2-4.
 
 CONSTITUTION OF THE GENERAL GOVERNMENT. 47 
 
 Newfoundland was also represented at the Quebec conven- 
 tion of 1864, but the general elections of 1865 resulted ad- 
 versely to the union.^ Subsequently the House of Commons, 
 in the session of 1869, went into committee on certain resolu- 
 tions providing for the admission of Newfoundland, and an 
 address was passed in accordance therewith. The union was 
 to take effect on such day as " her Majesty by order-in-council, 
 on an address to that effect, in terms of the 146th section of 
 the British North America Act, 1867, may direct; "^ but the 
 legislature of Newfoundland has so far shown no disposition 
 to enter the confederation of Canada. 
 
 In response to an address of the parliament of Canada, in 
 the session of 1878, an imperial order-in-council was passed 
 on the 31st of Julv, 1880, declarino- that " from and after the 
 l.st of September, 1880, all British territories and possessions 
 in North America, not already included within the Dominion 
 of Canada, and all islands adjacent to any of such territories 
 or possessions shall (with the exception of the colony of New- 
 foundland and its dependencies) become and be annexed to 
 and form part of the said Dominion of Canada ; and become 
 and be subject to the laws, for the time being in force in the 
 said DoDiinion, in so far as such laws may be applicable there- 
 to." This order-in-council was considered necessary to remove 
 doubts that existed regarding the northerly and north-easterly 
 boundaries of the Northwest Territories and Rupert's Land, 
 transferred to Canada by order of council of the 23rd June, 
 1870, and to place bej^ond question the right of Canada to all 
 of British North America, with the exception of Newfound- 
 land.^ 
 
 VII. Constitution of the General Government and Parliament.— 
 The Dominion^ of Canada has, therefore, been extended since 
 
 ' Turcotte, ii. , 562. 
 
 »Can. Com. J. (18(J9), 221. 
 
 •Can. Com. J. (1878), 2.')f)-7 ; Can. Stat. 1881, p. ix., Order-in-Council, Can. 
 Hans. (1878), 2.'?86 (.Mr. Mills). 
 
 *Thc title of Dominion (s. 3, B. N. A. Act of 18(57) <li(l not ui)pcar in tlio 
 Quebec resolutions. The name was arranged at the conference held in London
 
 48 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 18G7 over all the British possessions between the Atlantic 
 and Pacific oceans to the north of the United States — the 
 teiTitory under the jurisdiction of the Newfoundland govern- 
 ment alone excepted. The seven provinces embraced within 
 this vast area of territory are united in a federal union, the 
 terms of which have been arranged on " principles just to the 
 several provinces." 
 
 In order " to protect the diversified interests of the several 
 provinces, and secure efficiency, harmony, and permanency in 
 the working' of the union," the system of government as set 
 forth in the act of 1867, combines in the first place a general 
 government, " charged wath matters of common interest to 
 the whole country," and local governments for each of the 
 provinces, " charged with the control of local matters in their 
 respective sections." With a view to the perpetuation of our 
 connection with the mother country, and the promotion of 
 the best interests of the people of these provinces," the con- 
 stitution of the general government has been so framed as " to 
 follow the model of the British constitution, so far as our 
 circumstances will permit." Accordingly, "the executive 
 authority or government " is vested in express terms in the 
 " Sovereign of the United Kingdom of Great Britain and 
 Ireland," and is administered " according to the w^ell under- 
 stood principles of the British constitution." i 
 
 The sovereign is represented in the Dominion by a governor- 
 general, appointed by letters-patent under the great seal. 
 
 in 1866-7, when the union bill was finally drafted. " In the fourth draft of 
 the bill the united provinces were desis;nated the ' Kingdom of Canada,' but 
 the phrase was struck out at the instigation of Lord Derb\', then foreign 
 minister, who feared it would wound the sensibilities of the United States." 
 See Pope's Life of Sir J. Macdonald, i. 313 ; Pope's Confederation Documents, 
 p. 177. This was not the first time the title was applied to Canada ; we find 
 in the address of the old colonies assembled at Philadelphia, 1774, strong 
 objection was taken to the act of 1774, by which the " Dominion of Canada is 
 to be so extended, modelled and governed." Christie, i. 9. The old common- 
 wealth of Virginia was knowTi as "the Old Dominion." 
 
 •^ These quotations are from the Quebec resolutions, Can. Leg. Ass. J. (1865), 
 202. Houston, 305. The preamble of the B. N. A. Act, 1867, declares, 
 " with a constitution similar in principle to that of the United Kingdom."
 
 CONSTITUTION OF THE GENERAL GOVERNMENT. 49 
 
 His jurisdiction and powers are defined by the terms of his 
 ccmmission, and by the royal instructions which accompany 
 the same.^ He holds office during the pleasure of the Crown, 
 but he may exercise his functions for at least six years from 
 the time he has entered on his duties.- In all his communi- 
 cations with the imperial government, of which he is an officer, 
 he addresses the secretary of state for the colonies, the con- 
 stitutional avenue through which he must approach the 
 sovereign.3 His first duty, when he enters on his duties, is to 
 take the necessary oaths of allegiance and office before the 
 chief justice, or any other judge of the supreme court of the 
 Dominion, and at the same time to cause his commission to be 
 formally read."* In case of the demise of the Crown, and the 
 accession of a king or queen, the governor-general must again 
 take the oath of allegiance.^ 
 
 In view of the larger measure of self-government conceded 
 to the Dominion of Canada by the imperial legislation' of 1867 
 — in itself but the natural sequence of the new colonial policy 
 inaugurated in 1840 — the letters-patent and instructions, 
 which accompanied the commission given to the governor- 
 general in 1878, have been modified and altered in certain 
 material features. Tlie measure of power now exercised by 
 
 ' " A colonial governor is not a viceroy, but possesses only such authority as 
 is given him by statutory enactment or by the terms of his commission and 
 instructions from the Crown and its advisers." Musgrave v. Pulido, L. R. 5, 
 App. Cas. 102 ; Todd's Pari. Gov. in B. C, 2nd ed., 35, 36. 
 
 'Colonial Reg., sec. 7. Col, Office List, 1889, p. 322. Todd, 90. Lord 
 Lome held the position for only five years. Lord Uufferin was appointed in 
 the spring of 1872, and retired in the fall of 1878. 
 
 »To<ld, 90 ; Col. Reg., sec. 165. 
 
 *InHtruftions to governor-general, Can. Scss. P. 1870, No. 14. Tlic Marquis 
 of lyonie w.'iH Kworn in on tlio 2.")tli of Novcml)or, 1878, in the old Province 
 Building, Halifax, by acting Chief Justice Ritchie. Aiuiual Register for 1878, 
 pp. 2;').l-7. The oath of office is given in same account of ceremonies on tliat 
 occanion. 
 
 'The Earl of Minto^ February 2.'{, llKIl, on dcatli of Quciii \'ictoria and 
 accension of King Edward \il. {seo Otlaiva Citizen, January 24, 1901, 
 also iiifrn, p. 1S(J), wlio was proclaimed on the same day. Can. Oazelte Extra, 
 January 23, H)01. 
 4
 
 50 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 the government and parliament of Canada is not merely 
 " relatively greater than that now enjoyed by other colonies 
 of the empire, but absolutely more than had been previously 
 intrusted to Canada itself, during the administration of any 
 former governor-general." ^ Without entering at length into 
 this question, it is sufficient for present purposes to notice 
 that the governor-general is authorized, among other things, 
 to exercise all powers lawfully belonging to the Queen, with 
 respect to the summoning, proroguing or, dissolving of parlia- 
 ment ; ^ to administer the oaths of allegiance and office ; ^ to 
 transmit to the imperial government copies of all laws 
 assented to by him or reserved for the signification of the 
 royal assent ; ^ to administer the prerogative of pardon ; ^ to 
 appoint all ministers of state, judges, and other public officers, 
 and to remove or suspend them for sufficient cause.'' He may 
 also appoint a deputy or deputies to exercise certain of his 
 powers and functions." He may not leave the Dominion upon 
 any pretence whatsoever, without having first obtained permis- 
 
 ^ The modifications in these official instruments were the result of the 
 mission of Mr. Blake, whilst minister of justice, to England in 1876. For 
 full information on this subject, see Todd's Pari. Govt, in B. C. , 2nd ed., 
 110-119, and Can. Sess. P. (1877), No. 13 ; also chap, on Public Bills (sec. 25) 
 in Bourinot's Pari. Proced. For royal commission, letters-patent, and in- 
 structions to the Marquis of Lome, Sess. P. (1879), No. 14; to Lord Monck, 
 Sess. P. (1867-8), No. 22; also to Lord Dufferin, Can. Com. J. (1873), 85. 
 
 ^Letters-patent, 1878, s. 5. 
 
 * Instructions, 1878, s. 2. 
 
 *Ib. s. 4. 
 
 5/6. s. 5. By the amended instructions to the Marquis of Lome (see 
 Bourinot's Pari. Proced., App. E. 2), "The independent judgment and 
 personal responsibility of the governor-general of Canada as an imperial 
 officer are relied upon to decide finally, after consultation with his ministers, 
 in all cases of imperial interest or which might directly affect any country or 
 place outside of Canada ; while he is at liberty to defer to the judgment of 
 his ministers in all cases of merely local concern." Todd's Pari. Gov. in B.C., 
 2nd ed., 366. 
 
 ^Letters-patent, s.s. 3, 4. 
 
 '' lb. s. 6 ; also B. N. Act, 1867, s. 14. This power is constantly exercised 
 for the public convenience.
 
 CONSTITUTION OF THE GENERAL GOVERNMENT. 51 
 
 sion to do so through one of the principal secretaries of state.^ 
 In case of the death, incapacity, removal^ or absence from 
 Canada of the governor-general, his powers are vested in a 
 lieutenant-governor or administrator appointed by the Queen, 
 under the roj'^al sign-manual ; or, if no such appointment has 
 been made, in the senior officer in command of the imperial 
 troops in the Dominion. The administrator must also be 
 formally sworn, as in the case of the governor-general.^ 
 
 The senior executive councillor frequently administered the 
 government in the absence of the governor-general before the 
 union of 1840.* But whenever the lieutenant-governor was 
 in the country", during the period in question, it was his duty 
 to administer the government.^ Since 1840, in the old 
 province of Canada, and in the Dominion, the government has 
 been administered in the absence of the governor-general by 
 the senior officer in command of the imperial troops, in 
 accordance with the letters-patent issued by the Crown.*' 
 
 The constitution provides for the appointment of a council 
 to aid and advise tlie representative of the sovereign in the ^ 
 
 'Instructions, s. 6. 
 
 'It is always competent for tlie imperial government to remove the gover- 
 nors of colonies, who are appointed during pleasure. See memorable case of 
 fJovemor Darling of Victoria. Eng. Com. P. 1866, vol. 1., 701 ; Todd's Pari. 
 Gov. ;n B. C, 2nd ed., 1.36-140. 
 
 ' Letters-patent, s. 7. Canada Gazette, December 30, 1882. 
 
 *In 1H0.5, when Sir R. Shore Milnes, lieutenant-governor, went to England, 
 Mr. Dunn assumed the government as "President and Commander-in-Chief;' 
 he was one of the judges, and an executive councillor. Cliristie, i., 259. On 
 the death of the Duke of Richmond, in ISH), the government devolved on 
 Mr. Monk, as senior executive councillor. Christie, ii. , 322. 
 
 'fienerul Prcscott, on departure of Lord Dorchester in 1796, Christie, i., 173 ; 
 Sir R. Shore .Miln.s in 1799, Ih. 203 ; Sir ¥. Burton in 1S24, Jh., iii., 5;!. No 
 Htich ofiicial now exists in the I^ominion, the functions of the present lieutenant- 
 governors being confined to the provinces to which they arc appointed, in 
 accordance with the B. N. A. Act, 1867. 
 
 •In 1841, Sir R. D. Jackson; 1845, I^rd Cathcart ; 1853, Licut.-Gen, 
 Rowan; 1857, Sir VV. P^yre ; IH60, I^ieut. -Gen. Williams ; 1865, Lieut. -Gen. 
 Sir John Michel ; 1H74, Major-tJen. O'Crady Haly ; 187H, 1881-2, and 1882-3, 
 Sir P. L. McDougall. Soe Canada Gazelle, Dec. 30, 1882.
 
 52 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 government of Canada. This body is styled the Queen's Privy 
 Council, and its members are chosen and may be removed at 
 any time by the governor-general.^ In accordance with the 
 principles of the British constitutional S3^stem, this council 
 represents the views of the majority of the people's repre- 
 sentatives in parliament, and can only hold office as long 
 as its members retain the confidence of the House of 
 Commons. The name chosen for this important body has 
 been borrowed from that ancient institution of England, 
 which so long discharged the functions of advising the 
 supreme executive of the kingdom in the government of 
 the country.- Since the revolution of 1688, the privy council 
 of England has had no longer the direction of public affairs, 
 though it has still an existence as an honorary body, 
 limited in numbers, only liable to be convened on special 
 occasions, and only in theory an assembly of state advisers.^ 
 The system which has grown up in England since 1688, and 
 which has obtained its most perfect realization during the past 
 half century, now entrusts the practical discharge of the 
 functions of government to a cabinet council, which is tech- 
 nically a committee of the privy council.* This cabinet is the 
 ruling part of the ministry or administration. The term 
 " ministry" properly includes all the ministers, but of these 
 only a select number — usually about twelve, but liable to 
 variation from time to time even in the same administration 
 — constitute the inner council of the Crown and incur the 
 higher responsibilities whilst they exercise the higher powers 
 of government. The rest of the ministry, although closely 
 connected with their brethren in the cabinet, occupy a second- 
 ary and subordinate position.^ In Canada, however, there is 
 
 ^B. N". A. Act, 1867, s. 11. 
 
 » Blackstone's Com. i. , 229-234. 
 
 3Todd\s Pari. Gov. in England, ii., 79. 
 
 * lb., ii., 179. The cabinet council or ministry who hold the principal offices 
 of state, are first sworn in as privy councillors. May, ii., 79. Macaulay, c. 20. 
 
 * Taswell-Langmead, Cons. Hist., 707. And not only is the existence of the 
 cabinet council unknown to the law, but the very names of the individuals
 
 CONSTITUTION OF THE GENERAL GOVERNMENT. 53 
 
 no such distinction; for the term "ministry" or "cabinet" has 
 been always indifferently applied to those members of the 
 privy council who have been summoned by the governor- 
 general to aid and advise him in the government of the 
 Dominion. In the session of 1887 an act was passed with the 
 view of initiating the English system of having political heads 
 of departments, who would commence their official career by 
 holding certain offices which did not necessarily give them a 
 position in the cabinet,^ but the statute was repealed in 1897, 
 after a short and unsatisfactory experience of the change.^ The 
 principles that prevail in the formation of a cabinet in Eng- 
 land obtain in the case of an administration in Canada. Its 
 members must have places in either houses of parliament, but 
 the majority should, and necessarily do, sit in the commons. 
 
 In the old province of Canada, the cabinet was always 
 known officially as the executive council.^ In 1867, a new 
 ministry of thirteen members was formed under the legal title 
 of the privy council of Canada, in which it was found ex- 
 pedient to consider the claims of the several provinces of the 
 Dominion to representation in the first federal cabinet. Ac- 
 cordingly, Ontario had five representatives in the privy 
 council ; Quebec, four, one of them a representative of the 
 Engli.sh section of tlie population ; Nova Scotia, two ; New 
 Brunswick, two. The departments were reorganized, and new 
 ones established, to meet the changed conditions of things. 
 The privy council was composed of the following ministers:* 
 
 who may comprise the same at any given period are never officially communi- 
 cated to the public. The London Gazette announces that the Queen has been 
 pleaflod to appoint certain privy councillors to fill certain high offices of state, 
 but the fact of their liavin;; bicn called to Beats in the cabinet council is not 
 formally promulgated. Todii, ii., 181. 
 
 ^ Remarks of Sir J. A. Mac<lonald on the establishment of a department of 
 tra*le and commerce, Com. Hans. [1887], 8G2, 863. 
 
 ''See infra, .50, .'57. 
 
 •Can. Cons, Stat., 1G8, 1G9. 
 
 * Annual Register, 1878, itj). 0-10 ; Canada Gazette. Tlicir first salaries and 
 designation are given in .31 Vi(!t., c. .33, schedule. Salaries of ministers were 
 Bubsequently increased by 30 Vict., c. 31, s. 2; 4'2 Viet., c. 7, s. 13 in imrl.
 
 54 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 minister of justice and attorney-general,^ minister of niilitia,^ 
 minister of customs,^ minister of finance,* minister of public 
 works,^ minister of inland revenue,^ minister of marine and 
 fisheries," postmaster-general,^ minister of agriculture,^ secre- 
 tary of state of Canada,^^ receiver-general,^^ secretary of state 
 for the provinces, president of the privy council.^'^ In 1873, 
 on a chancre of government, the number of ministers was 
 increased to fourteen, tAA'o of them without portfolios,^^ but 
 by subsequent rearrangement the number was reduced to 
 thirteen as before, and Prince Edward Island, now a part of 
 the confederation, was represented by one member.^* On two 
 occasions since 1878, the speaker of the senate received a seat 
 in the council, though without portfolio,^^ and the number of 
 members of government was consequently increased again to 
 fourteen. Since 1867, several changes have taken place in 
 the organization of the departments. In 1873, the ofiice of 
 secretary of state for the provinces was abolished, and a 
 
 ^Functions of department set forth in 31 Vict., c. 39. 
 
 =^31 Vict., 0. 40. 
 
 '31 Vict., 0. 43. 
 
 *31 Vict., c. 5; 32-33 Vict., c. 4, and other acts relating to expenditures 
 and revenues. 
 6 31 Vict., c. 12. 
 
 631 Vict., c. 49. 
 
 '31 Vict., c. 57. In 1877, the management of certain piers, harbours and 
 breakwaters, was transferred from the department of public works to that of 
 marine and fisheries. 40 Vict., c. 17. 
 
 8 31 Vict., c. 10; 38 Vict., c. 7. 
 
 931 Vict., c. 53. 
 
 10 31 Vict., c. 42. 
 
 ^* The department of receiver-general was not provided for by special act, 
 but his duties are defined and referred to in various acts. See 31 Vict., c. 5, 
 etc. 
 
 ^^ Neither of those offices was provided for by special act. 
 
 "Hon. E. Blake and Hon. R. W. Scott, Annual Register, 1878, p. 30. 
 
 "76. 30-31. 
 
 ''Hon. Mr. Wilmot, in 1878; Hon. Mr. (afterwards Sir David) Macpherson, 
 in 1880, on appointment of former to lieutenant-governorship of New Bruns- 
 wick. See Canada Gazette, Nov. 9, 1878 ; lb., Feb. 12, 1880.
 
 CONSTITUTION OF THE GENERAL GOVERNMENT. 55 
 
 department of the interior orc^anized, with the control and 
 manao-ement of Indian affairs, Dominion lands, and some other 
 matters previously entrusted to the secretary of state for 
 Canada. The geological survey of Canada is also a depart- 
 ment presided over at present by the minister of the interior ; 
 it is under the charge of a director, who must necessarily be a 
 man of high scientific attainments.^ Immigration was trans- 
 ferred in 1892 from the department of agriculture to the 
 department of the interior.^ The minister of the interior or 
 the head of any other department appointed for this purpose 
 by the governor-in-council, is the superintendent-general of 
 Indian affairs.^ The department of secretary of state for 
 Canada remains in existence, but its functions embrace chiefly 
 state correspondence, the preservation of records, and papers 
 not specially transferred to other departments, the registration 
 of all instruments of summons, proclamations, commissions, 
 letters-patent, writs, and other documents issued under the 
 great seal and requiring to be registered.* A department of 
 public printing and stationery was organized in 1886, and 
 placed under the management of the secretary of state.^ In 
 1879, the office of receiver-general was abolished, and the 
 duties assififned to the finance minister.*' At the same time 
 the department of public works was divided into two separate 
 departments, presided over by two ministers — one designated 
 minister of raihva^^s and canals ; the other, minister of public 
 works. These changes were rendered necessary in the de- 
 partments of the interior and of public works; in the first 
 place, by the transfer of the great Korthwest Territor}^ to the 
 
 ' Rev. Stat, of Can., c.c. 22, 23 ; amen, by 53 Vict. (1890), c. 91, and 5.5-56, 
 Vict. (18f>2), c. 10, M'hich provides that the governor-in-council names a 
 mininter to preside from time to time over the survey. 
 
 'By order-in-council ; see s. 5, c. 24, Stat, of 1872. 
 
 3 Rev. Stat, of Can., c. 43. The premier. Sir J. A. Macdonald, wliile 
 president of tlic council, licld the oHice for some years. Pari. Companion for 
 1885. 
 
 *3l Vict., c. 42 ; Rev. Stat, of Can., c. 26. 
 
 *49 Vict., c. 22; Rev. Stat, of Can., c. 27. 
 
 •42 Vict., c. 7 ; Rev. Stat, of Can., c. 28. Can. Hans. (1879), 1241.
 
 56 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 Dominion, with its immense area of land and numerous tribes 
 of Indians ; and in the second place, by the very large addi- 
 tional amount of responsibility thrown on the other depart- 
 ment by the construction of the Canada Pacific Railway, 
 which had been at that time undertalcen by the government. 
 In 1884, the department of marine and fisheries was divided 
 into a department of marine and a department of fisheries, 
 administered by one minister and two deput:"es,^ but in 1892 
 the department was practically restored to its original position 
 with only one deputy.^ In 1901 the cabinet comprised four- 
 teen ministers, holding the departments given above, and two 
 members without portfolio.^ 
 
 In 1887, parliament constituted a department of trade and 
 commerce, presided over by a minister and having control and 
 supervision of the departments of customs and inland revenue. 
 Provision was made for the appointment of a controller of 
 customs and a controller of inland revenue, each of whom 
 was to be the parliamentary head of those departments under 
 the general instructions of the minister of trade.* The object 
 was, as stated in 1887,^ to follow as far as possible the British 
 system of political under secretaries of state, who would belong 
 to the government, but not to the cabinet.*^ In 1892, the new 
 ministerial organization was carried out and the new control- 
 lers went back to their constituencies for re-election as is 
 necessary in the case of ministers accepting an office of 
 emolument under the Crown. These controllers occupied 
 nominally subordinate positions under the department of trade 
 and commerce until late in 1895, when they were made privy 
 councillors and members of the cabinet — a preferment not 
 
 1 47 Vict., c. 19 (Rev. Stat, of Can., c. 25). 
 
 2 55-56 Vict., c. 17. 
 
 3 See Can. Almanac for 1901 ; Statistical Year Book of Canada gives lists of 
 governments since 1867. 
 
 * 50-51 Vict., c. 10. 
 5 50-51 Vict., c. 11. 
 
 * Remarks of Sir John Macdonald in introducing the bills. Com. Hans. 
 (1887), vol. 2, pp. 862-863.
 
 CONSTITUTION OF PARLIAMENT. 57 
 
 justified by the statutes under which these officers held office 
 or by the intention of their framers.^ When Sir Wilfrid 
 Laurier's government came into office in 1896, the act relating 
 to the controllers was repealed and the old departments of 
 customs and inland revenue restored to their former legal 
 status, with two ministers occupying the same position as 
 other members of the cabinet.^ 
 
 In 1887, provision was also made for a solicitor-general, who 
 is appointed by the governor-general-in-council, to assist the 
 minister of justice in the counsel work of his department. 
 He holds a seat in parliament, provided he is elected when 
 appointed to the office, but he is not a member of the cabinet/'^ 
 A department of labour was organized in 1900 and placed 
 under the supervision of one of the ministers of the regular 
 departments.* 
 
 VIII Constitution of Parliament.— Tlie constitution of 1867 
 provides that there shall be "one Parliament for Canada, 
 consisting of the Queen [now a King], an Upper House styled 
 the Senate, and the House of Commons."^ We have already 
 seen that the sovereign is represented by a governor-general 
 who, in person or b}'- deputy, opens and prorogues parHament.*^ 
 He also assents to all bills in his Majestj'-'s name,'^ and may at 
 
 'Com. Hans. (1896), vol. 1., p. 1065 et seq. 
 
 * 60-61 Vict., c. 18. See remarks of Mr. (afterwards Sir) W. Laurier, Com. 
 Hans. (1896), August 24th. Also deljates on bill, on June loth, 1897, Com. 
 Hans., vol. 2, pp. 4122-4130. Tlie salaries of tliese ministers -were restored in 
 1899 to the same amount paid other ministers ($7,000 each). See 62-63 Vict., 
 cc. 23, 24. 
 
 '.W-ol Vict., c. 14. Tlie solicitor-general is entitled to be called "honour- 
 able" while holding office ; the same was true of the controllers until 189."), wiicn 
 they were made privy councillors and con.sequently entitled to the designation 
 after retiring from office. See Pari. Comp. for 1897, whicli gives list of 
 memlKjrs entitled to "honourable," and having a special precedence on state 
 occasions. 
 
 * 63-64 Vict., c. 24, s. 10. 
 
 MJ. N. A. Act, 1867, s. 17. 
 
 * Supra, r>0. 
 
 'B N. A. Act, 1867, s.s. .'■,.5-.'57.
 
 58 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 any time dissolve parliament/ a prerogative of the Crown to 
 be exercised with caution under the advice of the privy 
 council. In the times before the concession of responsible 
 government, when contests between the executive and the 
 assemblies were chronic, the governors dulled the edge of this 
 important instrument by its too frequent use.' Under the 
 present system of constitutional government, such a condition 
 of things cannot possibly occur. The responsibility of decid- 
 ing whether in any particular case a dissolution should be 
 granted, must, under our constitution, " rest absolutely with 
 the representative of the sovereign." ^ In coming to a conclu- 
 sion, he is guided by considerations of public interests, which 
 will enable him always to judge of the value of the advice 
 given him by his constitutional advisers.^ Occasions, how- 
 ever, can very rarely arise when he should feel himself bound, 
 for powerful public or constitutional reasons, to refuse the 
 advice of his council ; but there can be no doubt that it is the 
 right and duty of the Crown, under any circumstances, to 
 control the exercise of one of the most valued prerogatives 
 of the sovereign. The relations between the representative of 
 the Crown and his advisers are now so thoroughly understood, 
 
 1 Governor-General's letters-patent, 1878, s. 5 ; B. N. A. Act, 1867, s. 50. 
 
 '^From 1808 to 1810, the Quebec assembly was dissolved no less than three 
 times by Sir James Craig. See his remarkable speech on one occasion, in 
 which he soundly rated the assembly before dissolving it. Christie, i. 283. 
 
 3 Sir T. E. May, New South Wales Leg. Ass. Votes and Proceedings, 
 .1877-78, vol. i. 451 ; Todd, Pari. Gov. in B. C, 2nd ed., 818. 
 
 *"The responsibility, which is a grave one, of deciding whether in any 
 particular case it is right and expedient, having regard to the claims of the 
 respective parties in parliament, and to the general interests of the colonjs 
 that a dissolution should be granted, must, under the constitution, rest with 
 the governor. In discharging this responsibility, he will, of course, pay the 
 greatest attention to any representations that may be made to him by those 
 who, at the time, are his constitutional advisers ; but if he should feel himself 
 boimd to take the responsibility of not following his minister's recommenda- 
 tion, there can, I apprehend, be no doubt that both law and practice 
 empower him to do so." Sir Michael Hicks Beach, sec. of s. for colonies; 
 New Zealand Pari. Papers, 1878 ; App. A. 2, p. 14 ; New Zealand Gazette, 
 1878, pp. 911-14.
 
 CONSTITUTION OF PARLIAMENT. 59 
 
 that a constitutional difficulty can hardly arise which cannot 
 be immediately solved. If the Crown should be compelled at 
 any time to resort to the extreme exercise of its undoubted 
 prerogative right of refusing the advice of its constitutional 
 advisory council of ministers, they must either submit or 
 immediately resign and give place to others who will be 
 prepared to accept the full responsibility of the sovereign's 
 action, which must be based on the broadest ground of the 
 public welfare.! 
 
 In the constitution of the Senate some security has been 
 given to each of the provinces for the protection of its peculiar 
 local interests, " a protection which it was believed might not 
 be found in a house where the representation was based upon 
 numbers only,"- Consequently, the Dominion was divided 
 into three sections, representing distinct interests, — Ontario, 
 Quebec and the maritime provinces of Nova Scotia and New 
 Brunswick — to each of which was given an equal representa- 
 tion of twenty-four members. Provision was also made for 
 keeping the representation for the maritime provinces at the 
 same number, after tlie entrance of Prince Edward Island.^ 
 An exception, however, was made in tlie case of Newfound- 
 land, " which has sectional claims and interests of its own, and 
 will therefore have a separate representation in the Senate."^ 
 More than that, in order to prevent that body being swamped 
 at any time for political reasons, the constitution expressly 
 limits the number that can sit therein.^ Special regnrd haS 
 also been had to the peculiar situation of the province of 
 Quebec, where the electoral divisions that existed previous to 
 
 'See mem. of Lt.-Oovernor Robitaille, Oct. 30, 1879, in a Quebec constitu- 
 tional criHis, in wliich ho refused a disHolution to Mr. J0I3', who tiierc'U])on 
 reHigncd. Todd's Pari. C;f>v. in B.C., '2nd i-d., TOil-S. Also Bouiiiiot's Fed. 
 f»ov. in Canada (.lohns Hoj)kins Uni. St., 7th series), 83. Uitey's Law of tiic 
 Constitution, 3 ed., 3r)()-.S61. 
 
 'Sir A. Campbell, Confed. Deb., 21. 
 
 »B. N. A. Act, 1807, s. 147. 
 
 *Sir.J. A. Macdonald, Confed. Deb., 3.'). 
 
 ^Il>. m ; n. N. A. Act, 1807, SB. '20, '27, '2H, 147.
 
 60 PARLIAME^^TABY INSTITUTIONS IN CANADA. 
 
 1867 are maintained, and a senator must consequently have 
 his real property qualitieation, or be resident in the district 
 for which he is appointed — a provision that was not considered 
 necessary for the other provinces.^ Since 1867 new provinces 
 and the territories of the Northwest have obtained repre- 
 sentation in the Senate, which now consists of 81 members 
 when full. 
 
 The House of Commons, as first organized under the Act of 
 Union, comprised one hundred and eighty -one members, but 
 the number since the census of 1891 consists of two hundred 
 and thirteen, in accordance with the principle of representa- 
 tion laid down in the federal constitution.^ In arranging the 
 representation of the House of Commons, the question arose 
 in the Quebec conference as to the best mode of preventing 
 the difficulty in the future of too large a number of members. 
 It was to be expected that in the course of a few decades the 
 population would largely expand, not only in the old provinces 
 which first composed the Dominion, but in the new provinces 
 which would be formed sooner or later out of the vast North- 
 west. Unless some definite principle was adopted to keep the 
 representation within a certain limit, the House of Commons 
 might eventually become a too cumbrous, unwieldy body. It 
 was decided " to accept the representation of Lower Canada 
 as a fixed standard — as a pivot on which the whole would 
 turn — since that province was the best suited for the purpose, 
 on account of the comparatively permanent character of its 
 population, and from its having neither the largest nor the 
 least number of inhabitants. "^ Hence the danc^er of an incon- 
 
 ^Hon. G. Brown said in the debate on Confederation (90): "Our Lower 
 Canada friends felt that they had French Canadian interests and British 
 interests to be protected, and they conceived that the existing system of 
 electoral divisions would give protection to those separate interests." The 
 principal oVjject of this provision was to give a representation to the English- 
 speaking population of Lower Canada, in the Eastern Townships especially, 
 which have now two representatives in the Senate. 
 
 ^5.5-56 Vict. (1892), c. 2, s. 1. See Bourinot's How Canada is Governed, 
 p. 95. 
 'Sir J. A. Macdonald, Conf. Deb., 38.
 
 CONSTITUTION OF PARLIAMENT. 61 
 
 venient increase, when the representation is reviewed after 
 each decennial census, has been practically reduced to a 
 minimum. 
 
 From 1867 until 1885 members of the house were chosen 
 by the electors qualified to elect representatives to the pro- 
 vincial assemblies, but in 1885 parliament provided a uniform 
 franchise for the Dominion.^ In 1898 the act was repealed, 
 and the provincial lists again adopted.^ Manhood suffrage, 
 qualified by residence and British citizenship, exists in all the 
 provinces and territories except in Quebec and Nova Scotia, 
 where the franchise is based on a small property condition, 
 although it is also extended to fishermen, teachers, and other 
 classes. 
 
 The question of the duration of parliament also obtained 
 much consideration when the Quebec resolutions were under 
 deliberation ; and it was finally decided to follow the example 
 of New Zealand, and give the Canadian parliament a consti- 
 tutional existence of five years^ "from the day of the return of 
 the writs for choosing the house," subject, of course, to be 
 sooner dissolved by the governor-general, acting under the 
 advice of the privy council. Eight parliaments have been 
 called toofether since 1867, and the ninth assembled on the 6th 
 February, 1901. In 1896 the seventh parliament was pro- 
 rogued on the 23rd April, and dissolved by the governor- 
 general, Lord Aberdeen, on the 24th April, or twenty-four 
 hours before the termination of its legal duration of five 
 years, according to a strict interpretation of section 50 cited 
 above.'* The longest session since 1867 was held in 1885, 
 
 ' Rev. Stat, of Can. , c. o. 
 
 Mil Vic, c. 14. 
 
 'Sir J. A. Macdonald, Conf. Deb., 39 ; B. N. A. Act, 1867, s. 50. 
 
 *Corn. J. for 1S91 ntnl 1890, wlii-ie tlic proclamations diHsolviiig j)ailiivment 
 for tho.se years aio given fit tlie beginning of tiio volumes. See Com. Jlans., 
 Mareli 16th, 1896, for a (lel)atc on a curious controversy that arose as to the 
 actual duration of tlie seventh jiarlianient, on account of llie fact tliat a writ 
 had been returned for Algoma about 39 days after tlio 2.")lh April, wlien tiie 
 writs were made returnable by the royal proclamation of dissolution. The
 
 62 PARLIAMENTARY INSTITUTIONS IN CANADA. ■ 
 
 when it reached 173 days; the shortest, in the autumn of 
 1873 — the second session tliat year — when there occurred a 
 ministerial crisis, and parhament closed, after sitting for only 
 sixteen days.^ 
 
 The provisions respecting the election of speaker, quorum, 
 privileges, elections, money votes, royal assent, reserved bills, 
 oaths of allegiance, and use of the French language, will be 
 found in the British North America Act, 1867, given in the 
 appendix to this book. Parliament has full control of all 
 Dominion revenues and duties, which form one consolidated 
 revenue fund, to be appropriated for the public service in the 
 manner, and subject to the charges provided in the Act of 
 TJnion.'^ The first charge thereon is the cost incident to the 
 collection and management of the fund itself ; the second 
 charge is the annual interest on the public debts of the several 
 provinces ; the third charge is the salary of the governor- 
 general, fixed at ten thousand pounds sterling. A bill was 
 passed in the first session, reducing this salary to six thousand 
 five hundred pounds, but it was reserved, and subsequently 
 disallowed on the ground " that a reduction in the salary of 
 the governor would place the office, so far as salary is a 
 standard of recognition, in the third class among colonial 
 governments." ^ 
 
 IX. Constitution of the Provincial Qovernments and Legislatures— 
 
 Under the act of 1867, tlie Dominion government assumed 
 that control over the respective provinces which was previously 
 
 government decided subsequentlj' to construe the constitutional law strictly, 
 and dissolve parliament at the date mentioned above. See infra, 66 n. , for a 
 somewhat analogous case that occuiTed in Ontario. 
 
 * See Appendix M, at end of Bourinot's Pari. Proc, where is given a tabular 
 statement of length of each session, time of opening and prorogation, date of 
 dissolution, and duration of each parliament since confederation. Also " The 
 Statistical Year Book of Canada," which gives similar statistics, including the 
 legislatures of the provinces. 
 
 'Ss. 102-126. See Rev. Stat, of Can., c. 29, respecting the consolidated 
 revenue fund, collection and. management of the revenue and auditing of 
 public accounts. 
 
 »Dom. Bess. P., 1869, No. 73.
 
 FROriNCIAL CONSTITUTIONS. 63 
 
 exercised by the imperial government.^ In each province 
 mere is a lieutenant-governor, appointed by the governor- 
 general-in-council, and holding office for five years, but subject 
 to removal at any time by the governor-general for "cause 
 9.ssigned," which must be "communicated to him in writing 
 within one month after the order of his removal is made, and 
 shall be communicated by message to the Senate and to the 
 House of Commons within one week thereafter, if the parlia- 
 ment is then sitting, and if not, then within one week after 
 the commencement of the next session of parliament.'"^ 
 Every lieutenant-governor, on his appointment, takes the 
 same oaths of allegiance and office as are taken by the gover- 
 nor-general.'' In all the provinces he has the assistance of an 
 
 ^ " The general government assumes toward the local governments precisely 
 the same position that the imperial government holds now with respect to 
 each of the colonies." Sir J. A. Macdonald, Conf. Deb., 1865, p. 42. Also 
 Todd's Pari. Govt, in B. C, 2nd ed., CIO. 
 
 - B. N. A. Act, 1867, ss. 58-59. In the memorable case of Mr. Letellier de 
 
 St. Just, removed from the lieutenant-governorship of Quebec in 1879, it has 
 
 been decided tliat the governor-general acts on the advice of his cabinet in 
 
 considering the very delicate question of the removal of so important an 
 
 officer. The colonial secretary, in a despatch of 5th Jul}-, 1879, lays it down 
 
 distinctly. "But it must be remembered that other powers, vested in a 
 
 similar way by the statute in the governor-general, were clearly intended to 
 
 be, and are in practice exercised by and with the advice of his ministers, and 
 
 though the position of a governor-general would entitle his views on such a 
 
 subject as that now under consideration to peculiar weight, j'et her Majesty's 
 
 government do not find anything in tlio circumstances which would justify 
 
 him in departing in this instance from the general rule, and declining to 
 
 follow the decided and sustained opinion of his ministers, who are responsible 
 
 for tlie peace and good goveriiiiient of tlie whole Dominion to the pailiament 
 
 to wliich tlie cause must be coiniimnicatcd." Can. Sess. V., IS.SO, No. 18, p. 
 
 8. I*'or full particulars of this much vexed question see Sen. and Com. Hans., 
 
 1878 and 1879 ; Can. Sess. V., 1878, No. 68 ; /h., 1879, No. 19; //>., 1880, No. 
 
 18. Todfl's Pari. Govt, in B. C, 2nd cd., 601-622. For comnninioation to 
 
 parliament in accordance with law. Can. Com. Jour. (1880) 24 ; Sen. J. (1880), 
 
 22-23. In 1900 Mr. Mclinies, lieutenant-governor of British Columbia, was 
 
 removed for cause. Sec Brinritiot's Canada under British Piilf, pp. 246-8, 
 
 where these two cases of removal are Ijrielly reviewed. 
 
 "Sec. 61, B. N. A. Act, 1867. Sec form of oaths in Can. Sess. P., 1884, 
 No. 77.
 
 64 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 executive council^ to aid and advise him in administering 
 public affairs, and who, Hke the privy council of Canada, are 
 responsible to the people through their representatives in 
 the legislature. In ease of the absence, illness, or other in- 
 ability of the lieutenant-governor, the governor-general-in- 
 council may appoint an administrator to execute his office and 
 functions."^ 
 
 In the exercise of his functions, the lieutenant-governor of 
 a province "should, of course, maintain that impartiality 
 towards political parties which is essential to the proper per- 
 formance of the duties of his office," and for any action he may 
 take he is, under the fifty-ninth section of the act, directly 
 responsible to the governor-general.-^ The only safe principle 
 that he can adopt for his general guidance is that pointed out 
 to him by the experience of the working of parliamentary 
 institutions; to give his confidence to his constitutional 
 advisers while they enjoy the support of the majority of the 
 legislature. 
 
 A question has been raised on several occasions since 1867 
 how far a lieutenant-governor can be considered to repre- 
 sent the Crown. It is now beyond dispute that he is fully 
 authorized to exercise all the powers lawfully belonging 
 to the sovereign in respect of assembling or proroguing, and 
 of dissolving the legislative assemblies in the provinces.* A 
 high judicial authority has also authoritatively stated " they 
 represent the Queen as lieutenant-governors did before con- 
 federation, in the performance of all executive or administra- 
 tive acts now left to be performed by lieutenant-governors in 
 the name of the Queen."^ Later the judicial committee of the 
 
 1 Quebec Stat. 60 Vict. (1897), c. 21; O. Rev. Stat. (1897), c. 14; Rev. 
 Stat, of B. C. (1897), c. 47, ss. 9-18; Rev. Stat, of Man. (1891), c. 54. For 
 Maritime P., see Nova Scotia and New Brunswick, infra, p. 67; P. E. 
 Island, s. 13, p. xxii., Stat, of Can. for 1873. 
 
 * B. N. A. Act, s. 67. 
 
 3 Despatch of the colonial secretary, 1879 ; Can. Sess. 1880, No. 18, p. 8. 
 
 * Todd's Pari. Govt, in B. C, 2nd ed., 583, 584. 
 
 5 Ritchie, C. J., Mercer t;«. Att.-Gen. of Ontario, Can. Sup. Court R., voL 
 v., 637, 643.
 
 PROVINCIAL CONSTITUTIONS. 65 
 
 privy council decided that a lieutenant-governor is within his 
 provincial sphere as much a representative of the Crown as 
 the governor-general himself within the larger Dominion 
 limit 
 
 1 
 
 The forty-first resolution of the Quebec conference declared 
 that " the local government and legislature of each province 
 shall be constructed in such manner as the existing legislature 
 of each such province shall provide." Accordingly, in the last 
 session of the old legislature of Canada, an address was passed 
 to the sovereign praying her " to cause a measure to be sub- 
 mitted to the imperial parliament to provide for the local 
 government and legislature of Lower and Upper Canada 
 respectively." - In accordance with this address the constitu- 
 tions of Quebec and Ontario were formally incorporated in 
 the British North America Act of 1867. The legislature of 
 Ontario consists of only the lieutenant-governor and one 
 house, named the legislative assembly, composed in the first 
 instance of eighty-two members, elected for the same electoral 
 districts which returned members to the House of Commons.^ 
 Since 1867 constituencies have been re-arranged on several 
 occasions, and the representation has been increased to ninety- 
 four members, elected by manhood suffrage qualified by 
 residence* 
 
 The legislature of Quebec consists of a lieutenant-governor, 
 a legislative council, and a legislative assembly. The legis- 
 lative council comprises twenty-four members, appointed for 
 life by the lieutenant-governor in the Queen's name, and 
 representing the same electoral districts from which senators 
 are chosen.^ The qualifications of tlie legislative councillors 
 
 ' See vifia, 128. 
 
 »Leg. Ass. J. (1866), 362. 
 
 »Lcg. Ass. J. (1866), 363, resolution 12. B. N. A. Act, 1867, ss. 69, 70, 
 Ist sch. 
 
 *See chap. 6, Rev. Stat, of Ont. for 1897, in which the electoral divisions are 
 set forth. Eacli of the ninety-three districts return one member, with the 
 exception of Ottawa, which has two representatives. Jh., s. 18. 
 
 ^Liig. Ass. J. (1866), 363 ; li. N. A. Act, 1867, 88. 71, 72 and 8. 22, Hubs. 3. 
 Cons. Stat, of Canada, c. 1, sch. A. 
 6
 
 66 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 of Quebec are the same as those of the senators from the 
 province.^ The legislative assembly was originally composed 
 of sixty-five members, elected until 1890 for the same electoral 
 districts represented by the members of the House of Com- 
 mons for the province." It is provided in the act that while 
 it is always perfectly competent for the legislature of Quebec 
 to alter these districts, it can only change the limits of certain 
 constituencies, especially mentioned, with the concurrence of 
 the majority of the members representing all those electoral 
 divisions.^ In the session of 1890, the territorial limits of 
 certain counties and electoral districts were modified, and the 
 representation increased and distributed " in a more equitable 
 manner." The total number of representatives in the 
 assembly of Quebec is now seventy-three.^ 
 
 The legislative assembly in each province is summoned by 
 the lieutenant-governor in the king's name. It has a constitu- 
 tional existence of four years in Ontario,^ and of five years in 
 
 1 B. N. A. Act, ss. 23 and 73. 
 
 "Ss. 40 and 80 ; Doutre, 85. Quebec Rev. Stat. (1888), arts. 60, 64, 90. 
 
 ^ These districts are Pontiac, Ottawa, Argenteuil, Hiintingdon, Missisquoi, 
 Brome, Shefford, Stanstead, Compton, Wolfe and Riclimond, Megantic, town 
 of Sherbrooke. Second sched. B. N. A. Act, 18G7. In these districts there 
 is a large English-speaking and Protestant population, and it was considered 
 expedient to insert this pro\4so securing its rights ; but the provision was 
 opposed in the legislature, in 1866, as unnecessar}-. Turcotte, ii., 590. 
 
 * See Quebec Stat. , 53 Vict. , c. c. 2 and 3. 
 
 ^In 1879 it was necessary to pro\ade in Ontario (42 Vict., c. 4, s. 3) that 
 every legislature should continue for four j'ears from the 55th day after the 
 date of the writs for the election and no longer ; that in case a meeting of the 
 legislature is necessary before the election for Algoma has taken place, the 
 member elected for that district at the pre\aous election shall represent the 
 same until the new election therefor has been held and the return made in 
 due form ; that in such case the duration of the new assembly shall be for four 
 years from the day for which the assembly shall be summoned to meet for the 
 discharge of business and no longer, subject to being sooner dissolved by the 
 lieutenant-governor. This provision was made to meet a constitutional 
 question that had arisen as to the exact duration of the legislature — whether 
 it could not last for four years from the date of the return for Algoma, which 
 was then much later than for the rest of the province. See Canadian Monthly, 
 April, 1879, and Pari. Deb. of Ontario, 1879, as to the curious controversy 
 that arose on this constitutional point. In 1885 the foregoing act was amended
 
 PROVINCIAL CONSTITUTIONS. 67 
 
 Quebec,^ subject to being dissolved at any time by the same 
 authority that calls them together, a constitutional provision 
 which holds good in the case of all the provincial legislatures. 
 A session must be held once at least in every year, " so that 
 twelve months shall not intervene between the last sittinsf of 
 the legislature in each province in one session and its first sit- 
 ting in the next session." ^ The provisions in the act respecting 
 election and duties of speaker, quorum, and mode of voting, 
 in the House of Connnons, also apply to the legislative 
 assemblies of the provinces in question.^ The speaker of the 
 legislative council is appointed by the lieutenant-go vernor-in- 
 council, and may be a member of the executive council.'^ 
 
 Tlie Act of 1867 provides that the constitution of the execu- 
 tive authority as well as of the legislatures of the provinces of 
 Kova Scotia and New Brunswick shall continue as it existed 
 at the time of the union, until altered under the authority of 
 that act.5 These two colonies had, for very many years, 
 enjoyed the advantages of representative institutions as 
 liberal in all respects as those of the larger provinces in 
 Canada. Under the French regime, and for some time after 
 their conquest by the English, these provinces were comprised 
 in the large, ill-defined territory known as Acadia.*' From 
 
 by dividing Algonia into two electoral districts and provision made to prevent 
 any question arising in the immediate future. Ont. Rev. Stat, of 1887, c. 11, s. 3. 
 This provision vas oidy temporary and was not re-enacted in the Rev. Stat. 
 of 1897, s. 3. In 1001 it was enacted that the existing "legislative assembly, 
 if in session at the expiration of tlie term fixed by s. 3 of The Act Respecting 
 The Legislative Assembly, shall continue until prorogued by the lieutenant- 
 governor, and for ten days thereafter and no longer." Tliis legislation was 
 intended to prevent an inconvenient interruption of public business by the 
 effluxion of time, such as happened in the case of the Dominion Commons in 
 1896 ; see nupra, 01. 
 
 ' Extended from four to five years, in 1881. Quebec, Rev. Stat. (1888), art. 110. 
 
 »B. N. A. Act. 1867, s. 86. 
 
 »//^,8. 87. 
 
 ♦Quebec Stat., 52 Vict., c. 3 ; Ih. 5H Vict., c. 13. 
 
 ^ B. N. A. Act, 8s. 64, 88. The power of amendment so conferred has not 
 been exercised in Nova Scotia. — Gov. Archibald, Can. Sess. P., 1883, No. 70, 
 p. 11. 
 
 *Nova Scotia was formally ceded to England by tlie treaty of Utrecht, 1 Itli
 
 68 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 1713 to 1758 the provincial government consisted of a 
 o-overnor or lieutenant-oovernor and a council supposed to 
 possess both legislative and executive powers. The constitu- 
 tion of Nova Scotia has always been considered " as derived 
 from the terms of the royal commissions to the governors and 
 lieutenant-governors, and from the instructions accompanying 
 the same, moulded from time to time by despatches from 
 secretaries of state, conveying the will of the sovereign, and 
 by acts of the local legislature, assented to by the Crown : the 
 whole to some extent interpreted by uniform usage and 
 custom in the colony."^ A legislative assembly met for the 
 first time at Halifax" on the second of October, 1758, and 
 consisted of twenty -two members.^ 
 
 In 1838 the executive authority was separated from the 
 legislative council, which became a distinct legislative branch 
 only.^ In 1840 a practical recognition was given for the first 
 time to the principle of responsible government, in the forma- 
 tion of the executive council, but in reality the system was 
 not fully adopted until 1848.^ In 1867, before the act of 
 union came into force, the legislature of Nova Scotia passed 
 
 April, 1713 (Houston, 3) ; but Cape Breton still remained a possession of 
 France until the conquest of Canada, and the subsequent treaty of Paris, 
 which gave to Great Britain all the French possessions in British North 
 America, except the islands of St. Pierre, Miquelon and Langley on the coast 
 of Newfoundland, reserved for carrying on the fisheries. The island of Cape 
 Breton was under the government of Nova Scotia from 1766 to 1784, when it 
 was given a separate government, consisting of a lieutenant-governor and 
 council. This constitution remained in force until the re-annexation of the 
 island to Nova Scotia in 1820. Can. Sess. P., 1883, No. 70, p. 10. 
 
 ^ Governor Archibald, in an interesting memorandum on the early constitu- 
 tion of Nova Scotia, in answer to an address of jjarliament. Can. Sess. P. , 
 1883, No. 70, pp. 7-11. 
 
 * Annapolis (Port Royal under the French regime) was the seat of govern- 
 ment until 1749, when Halifax was founded. Murdoch's Hist., ii., c. 11. 
 Bourinot's Builders of Nova Scotia, 12, 122. 
 
 s Murdoch, ii., 353 ; Bourinot's Builders, 22-24, and app. G. 
 
 *Can. Sess. P., 1883, No. 70, pp. 8, 39; Bourinot's Canada under British 
 Rule, p. 174. 
 
 5 Howe's Speeches and Letters, voh i., 553, 562-4; Todd's Pari. Govt, in 
 B. C, 2nd ed., 73, 80 ; Eng. Com. P., 1847-8, vol. 42, pp. 51-88.
 
 PROVINCIAL CONSTITUTIONS. 69 
 
 an act limiting the number of members in the assembly to 
 thirty-eiglit/ and at the same time an address to limit the 
 number of legislative councillors to eighteen failed to pass.^ 
 The number now varies from twenty-one to eighteen. The 
 assembly has a constitutional existence of five years, since 
 1897, unless sooner dissolved. 
 
 In 1784 the province of New Brunswick, which had received 
 large accessions of loyalists from the United States, was for- 
 mally created, and a government established, consisting of a 
 council of twelve members, having both executive and legisla- 
 tive functions, and of an assembly of twenty-six members ;^ 
 but in 1832 the executive authority was made quite distinct 
 from the legislative council.^ In 1848 the principles of 
 responsible government were formally carried out in accord- 
 ance with the liberal policy adopted by the British govern- 
 ment with respect to the British American provinces gener- 
 ally.'' In the act of union it was provided that the house 
 of assembly of the province, elected in 1866, should, " unless 
 sooner dissolved, continue for the period for which it was 
 elected."" The lei^islature now consists of a lieutenant- 
 governor, and an assembly of forty-six members, elected for 
 
 ^Rev. Stat. (1900), c. 2, s. 4. For vacating of seats, Ih. ss. 5-8. Duration of 
 general assembly, ss. 4, 9. Executive and legislative disabilities, c. 2, ss. 
 11-17. Previous to 1897, the legislative term was four years. 
 
 2. Jour. Ass. (1867) 28. Efforts have been made in the Nova Scotia assembly 
 to abolish the legislative council, as in Ontario, but so far fruitlessly on 
 account of the opposition in the latter body. An. Reg. (1879) 179-80. See 
 Trans. Roy. Soc. Can., vol. ii., new series, s. 2, for an article by the present 
 author on the constitution of the council. 
 
 'The first governor was Colonel T. Carleton, brother of Lord Dorchester. 
 See cojjy of the ff>mniission of governor, giving hitn ])ower to a])point a 
 council, create courts, and call an assembly, etc., in Can. Sess. 1\ 1883, No. 70, 
 p. 47 ; Houston, 22. 
 
 *Lord Glenelg's despatch of 30tli April, 1837; see Howe's Speeches and 
 PuVjlic Letters, ii., 522. 
 
 * Todd's Pari. fJovt. in R C, 2nd ed., 80. 
 
 "See. 88.
 
 70 PABLIAMENTARY INSTITUTIONS IN CANADA. 
 
 four years and two months.^ The leg-islative council that 
 formerly existed in this province was abolished in 1891.- 
 
 The island of Prince Edward, formerly known as St. John,^ 
 formed part of the province of Nova Scotia until 1769, when 
 it was created a separate province with a lieutenant-governor, 
 a combined executive and legislative council, and eventually a 
 legislative assembly of eighteen members.* The government 
 of the province was always largely influenced by the proprie- 
 tors of the lands of tlie island, distributed by the lords of 
 trade and plantations in the year 1767. Some of the lieuten- 
 ant-governors were in constant antagonism to the assembly, 
 and during one administration the island was practically 
 without parliamentary government for ten years.^ Responsi- 
 ble government was not actually carried out until 1850-51, 
 when the assembly obtained complete control, as in the other 
 provinces, of the public revenues.^ The land monopoly was 
 for many years the question which kept the public mind in a 
 state of constant ferment, and though many attempts were 
 made, with the assistance of the British government, to adjust 
 the conflicting claims of tlie proprietors and tenants,'' it was 
 not until the admission of the island into the confederation in 
 1873 that a practical solution was reached in the agreement 
 of the Dominion government to advance the funds necessary 
 
 ' X. B. Stat. (1889), c. 3., s. 98, am. by Ih. (1896), c. v. 
 
 ^ lb. 54 Vict. , c. ix. 
 
 ^ It was finall}' ceded to Great Britain by the treaty of Paris, 1763. The 
 name was changed in 1799, in honour of Edward, Duke of Kent. J. Stewart's 
 account of P. E. Island, 247. 
 
 * Captain Walter Paterson, one of the original land owners of the colony, 
 was the first lieutenant-governor. See copy of liis commission, Can. Sess. P. 
 1883, No. 70, p. 2 ; Houston, 21. The assembly first met in 1773. Stewart's 
 P. E. Island, 177. 
 
 5 Campbell, 82. Mr. C. Douglas Smith was lieutenant-governor, and did 
 not summon the legislature from 1814-1817. He dissolved three successive 
 legislatures which proved intractable, and he was removed in 1824. 
 
 « Col. Office List, 1900, p. 55. Bourinot's Canada under British Rule, p. 180. 
 
 'Campbell, 162.
 
 PROVINCIAL CONSTITUTIONS. 71 
 
 to purchase the claims of the proprietors.^ It was provided, 
 in the act of 1873 admitting the island, that the constitution 
 of the executive authority and of the legislature should con- 
 tinue as at the time of the union, unless altered in accordance 
 with the act of 1867, and that the assembly existing in 1873 
 should continue for the period for which it was elected." The 
 legislative council, elected for many years on a property 
 qualification, was abolished in 1893 as a separate house, and 
 united with the assembly. The fifteen constituencies of the 
 island now return each a councillor elected on a real estate 
 qualification, to the value of $325, and a member elected on 
 the general franchise, practically manhood suftrage.^ The 
 leo-islatui'e consequently now consists of a lieutenant-governor 
 and an assembly of thirty members, elected for four years. 
 
 The local constitution arranged for the province of Mani- 
 toba by the Canadian parliament in 1870 provided for a 
 lieutenant-sfovernor, an executive council of not less than five 
 persons in the first instance, a legislative council of seven 
 members to be increased to twelve after four j^ears, and a 
 legislative assembly of twenty-four members elected to repre- 
 sent electoral districts set apart by the lieutenant-governor.* 
 In 1876, Manitoba abolished the legislative council, and the 
 legislature consequently now consists only of the lieutenant- 
 governor and assembly.^ The same provisions as in the other 
 provinces exist with respect to the duration of the legislature 
 and its meetings once a year. By act of the legislature in 
 1890, the Etiirlish lanfruaire alone is to be used in the records 
 and journals of tlie assembly, and in the process and pleadings 
 
 'Com. Jour. (1873) 401 ; Doin. Stat, of 1873, p. xi. A compulsoiy land 
 purcliaso act paH.scd tlio provincial legislature in 1870. IVxld'a Pail. Gov. in 
 B. C, 2nd ed., 479. Eng. Com. P., 1875, vol. liii, 764, 7G6-7G8. 
 
 »Can. Stat. 1873, p. xii. 
 
 •Sec Bourinot'H "How Canada i.s CJoverncd," ]>]). IT)"), Ifil ; V. K. I. Stat. 
 for 1893, c. 1. 
 
 ♦33 Vict., c. 3. Seo Schs. I'. 1871, No. '20, for measures taken to organize 
 the provincial government. 
 
 *Man. Stat., 39 Vict., c. 28 (Rev. Stat, of Man., 1891, c 84, s. 3). Pari. 
 Companion, 1878, p. 310; Sesa. Pap. 187«, No. 3(i.
 
 72 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 of the courts.^ The present assembly now consists of forty 
 members elected by manhood suffrage.^ 
 
 Like Rupert's Land and the Northwest Territories, Van- 
 couver Island and the mainland, first known as New Caledonia, 
 were for many years under the control of the Hudson's Bay 
 Company. Vancouver Island was nominally made a Crown 
 colony in 1849 ; that is, a colony without representative institu- 
 tions, in which the government is carried on by a governor 
 and council, appointed by the Crown.^ In 1856 an assembly 
 was called, despite the insignificant population of the island. 
 In 1858 New Caledonia was organized as a Crown colony 
 under the name of British Columbia, as a consequence of the 
 gold discoveries which brought in many people.^ In 1866, 
 the colony was united with Vancouver Island under the general 
 designation of British Columbia.^ When the province entered 
 the confederation of Canada in 1871, it was governed by a 
 lieutenant-governor appointed by the Crown, a legislature 
 composed of heads of the public departments and several 
 elected members ; but it was expressly declared in the terms 
 of union that " the government of the Dominion will readily 
 consent to the introduction of responsible government when 
 desired by the inhabitants of British Columbia." *^ Since its 
 admission, British Columbia has a local constitution similar to 
 that of the majority of the other provinces : a lieutenant- 
 governor, an executive council, responsible to the legislature, 
 
 ^ See Rev. Stat, of Man. for 1891, p. Iv., where the words "as far as the 
 legislature has power to enact " are added in italics by the revisers of the 
 statutes. 
 
 *Rev. Stat, of M. (1891), c. 50, am. by 55 Vict. c. 13, constituting forty 
 electoral divisions. 
 
 ' The company's officer. Sir James Douglas, was appointed governor. See 
 Colonial Office List, 1900, p. 53. Bourinot's Canada under British Rule, pp. 
 231, 232. 
 
 *See Imp. Stat. 21-22 Vict., c. 99 ; Rev. Stat, of B. C. (1897), p. Ixi. 
 
 5 Imp. Stat. 29-30 Vict., c. 67 ; Rev. Stat, of B. C. (1897), p. Ixvii. 
 
 « Can. Sess. P. , 1867-8, No. 59 ; Stat, for 1872, p. Ixxxix. ; Rev. Stat, of 
 B. C. (1897), p. ciii.
 
 ORGANIZATION OF THE NORTHWEST. 73 
 
 and one house only, a legislative assembly of thirty-eigb^^ 
 members, elected for four years, on manhood suffrage.^ 
 
 X. Organization of the Northwest Territories.— After the acquisi- 
 tion of the Northwest, the parliament of Canada provided a 
 simple machinery for the government of that vast territory, 
 preparatory to the formation of new provinces therein. The 
 first act passed in 1869 was only of a temporary character, 
 and as previously shown, it never practically came into opera- 
 tion ; but in the act of the following year, forming the new 
 province of Manitoba, provision was also made for the govern- 
 ment of that portion of Rupert's Land and the Northwest 
 Territory not included within the limits of that province.^ 
 
 For some years the territories were governed by a simple 
 machinery adapted to their small population : a lieutenant- 
 governor appointed by the governor-general-in-council, and 
 acting under its instructions, a small council composed of the 
 judges of the supreme court of the territories and other 
 persons appointed by the governor-general-in-council. The 
 lieutenant-governor-in-council could make ordinances for the 
 government of the Northwest within certain limitations. 
 The right to elect a proportion of the council was the first 
 concession made in the direction of a more popular form of 
 government. In 1888 a legislativ^e assembly of twenty-two 
 members was created with the powers and duties of the old 
 council. This assembly had for some time the assistance of 
 the three judges of the supreme court of the territories as 
 legal experts, who could take part in the debates, but not vote. 
 The lieutenant-governor had also the aid of an advisory 
 council on matters of finance, who held office during pleasure. 
 From 1888 until 1900, other changes were made in the 
 government of the Northwest. At the present time it is 
 composed of a lieutenant-governor, who holds office during 
 pleasure, but practically for five years, as in the provinces ; of 
 an executive council cho.sen by the lieutenant-governor fioni 
 
 'See Rev. Stat, of B.C. (1897), c. 47. " An act respecting the constitution 
 of the province," am. hy 8. 2, c. 38, statutes of 1898. 
 
 'Supra, 44.
 
 74 PABLIAMENTARY INSTITUTIONS IN CANADA. 
 
 members of the assembly, and holding office on the same 
 tenure as in the provinces; of an assembly of thirty-one 
 members elected by British subjects who are actual male 
 residents of adult age for twelve months before an election. 
 This assembly has a duration of four years, unless sooner 
 dissolved by the lieutenant-governor, and has power to make 
 ordinances with reference to all matters of a private or local 
 nature in the territories, with some limitations practically the 
 same legislative power possessed by the' provinces. Justice is 
 administered by a chief justice and four puisnd judges. Legal 
 experts are no longer appointed.^ 
 
 In accordance with a resolution passed by the Canadian 
 House of Commons in 1882, an order-in-council marked out in 
 the Northwest the following provisional divisions for ad- 
 ministrative and legislative purposes: Alberta, Athabasca, 
 Assiniboia and Saskatchewan.- By proclamation of the 2nd 
 of October, 1895, the following additional districts were estab- 
 lished in the unorganized and unsettled territories : Ungava, 
 Franklin, Mackenzie and Yukon.^ 
 
 The discovery of gold in the provisional Yukon district and 
 the consequent migration of a large population into the 
 country subsequently required special legislation in the 
 Dominion parliament. The district is now governed by a 
 commissioner, appointed by the governor-general-in-council, 
 
 1 For legislation respecting territories until 1900, see Dom. Rev. Stat. 1886, 
 c. 50 ; 51 Vict. (1888), c. 19; 54-55 Vict. (1891), c. 22; 57-58 Vict. (1894), c. 
 17; 60-61 Vict. (1897), c. 28; 61 Vict. (1898), c. 5; 63-64 Vict. (1900), c. 44. 
 In explaining the act of 1897, Mr. Sifton, minister of the interior, said : "The 
 bill will give the people of the territories a government which shall not have 
 the full powers of a provincial government, but in so far as they have power 
 to deal with any subjects they shall do it in the same way as the other 
 provinces. They will have ministers who are responsible to the legislature, 
 and the rules and precedents which apply to the provincial governments will 
 apply to the governments of the territories." Can. Com. Hans. (1897), vol. 
 2, p. 4115. 
 
 'Can. Com. J. (1882), 509; Canada Gazette, Dec, 1882. Regina, in Assini- 
 boia, is the capital. 
 
 3 See for boundaries of all the provisional districts in the Northwest, Col, 
 Off. List for 1900, pp. 56 and 57.
 
 ORGANIZATION OF THE NOETHWEST. 75 
 
 and acting under instructions from Ottawa ; a council, partly 
 elected by the people, and partly appointed by the Crown, 
 with power to make ordinances for the good government of 
 the territory within the limitations set forth by the law; a 
 superior court of record comprised of one or more judges, from 
 whose judgments an appeal can be made to the supreme court 
 of British Columbia and to the supreme court of Canada.^ 
 The boundary line between the Yukon district and the terri- 
 tory of Alaska is a matter of controversy between the gov- 
 ernments of Great Britain and the United States, and a 
 provisional boundary has been arranged by authorized geo- 
 graphical experts until such time as the questions at issue can 
 be finally adjusted.^ 
 
 The acquisition of the Northwest brought a large number 
 of Indian tribes under the jurisdiction of the Canadian 
 government, who have faithfully carried out the policy first 
 laid down in the proclamation of 1763.^ Between 1871 and 
 1877 seven treaties were made by the Canadian government 
 with the Crees, Chippewas, Salteaux, Ojibways, Blackfeet, 
 Bloods and Piegans, who received certain reserves of land, 
 annual payments of money and other benefits, as compensation 
 for making over to Canada their title to the vast country 
 where they had been so long the masters.* From that day to 
 this the Indians have become the wards of the government, 
 who have always treated them with justice and discretion. 
 
 Pending the settlement of the western boundary of Ontario, 
 it was considered expedient in 1876 to create a separate terri- 
 tory out of the eastern part of the Northwest.^ This territory 
 
 ^For proclamation of Aug. 16, 1897, see Canada Oazctle, vol. 31, p. S.W. 
 For legislation rcHpecting Vukon, seo Canada Stat., 61 Vict., c. 6; 62-63 
 Vict., c. 11. 
 
 2 Consult Bourinot's Canada nnil<r Ilritisii Rule, pp. 310-313, also remarks 
 of Sir W. Laurier, prime minister, Ful). lltli, 1901. 
 
 •See supra, 8. 
 
 *See Lt.-(iov. Morris's Treaties of Canada with the Indians of Manitoba aud 
 N. W. T., 1880. 
 
 *39Vict., c. 21 ; Rev. Stat, of Can., c. 53; infra, 11, for settlement of 
 boundary question.
 
 76 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 is known as the district of Keewatin, and is under the juris- 
 diction of the lieutenant-governor of Manitoba, ex-officio, who 
 may have the assistance, if necessary, of a council, of not less 
 than five persons and not more than ten, to aid him in the 
 administration of affairs, with such powers as may be confer- 
 red upon them by order of the governor-in-council.^ This 
 arrangement of a separate district is altogether of a provisional 
 nature, and will come entirely to an end with the rapid de- 
 velopment of the Northwest Territories.^ The district of 
 Keewatin has been materially altered by the extension of the 
 limits of Manitoba, in accordance, with acts passed since 1876,^ 
 and by the extension of the boundary of Ontario through the 
 decision of the judicial committee of the privy council in 1884.^ 
 In 1871 it w^as found expedient to obtain certain legislation 
 from the imperial parliament in order to remove doubts that 
 were raised in the session of 1869, as to the power of the 
 Canadian legislature to pass the Manitoba Act, especially the 
 provisions giving representation to the province in the Senate 
 and House of Commons. It appears that the address passed 
 in the first session of the parliament of Canada contained no 
 provisions with respect to the future government of the 
 country, whilst the general purview of the British North 
 America Act, 1867, as respects representation in the Senate 
 and House of Commons, seems to be confined to the three 
 provinces of Canada, Nova Scotia and New Brunswick, 
 originally forming the Dominion. Whilst the admission of 
 Newfoundland and Prince Edward Island is provided for, no 
 
 ^ No such orders now appear in the statutes of Canada. 
 
 ''Can. Hans. (1876), 86, remarks of Mr. Mackenzie, then premier, in 
 introducing bill. 
 
 3 40 Vict., c. 6, defined new boundaries of the provinces of Manitoba and 
 Keewatin. By 44 Vict., c. 14, the boundaries of the province of Manitoba 
 were extended. See Rev. Stat, of Can., c. 53. For debates as to boundary 
 question, see Sen. Hans. (1880-81), 606 et seq., Com. Hans. (1880-1), 2 vol., 
 p. 1443 et seq. The northwestern, northern and northeastern limits of the 
 pro%'ince of Quebec are determined by c. 6 of Quebec Stat, of 1898, and c. 3 
 of Dom. Stat, of 1898. 
 
 * See infra, 77.
 
 BOUNDARY QUESTION. 77 
 
 reference is made to the future representation of Rupert's 
 Land and the Northwest Territory, or of British Columbia. 
 Under these circumstances an act was passed through the 
 imperial parliament substantially in accordance with a report 
 submitted by the Canadian minister of justice to the privy 
 council, and transmitted to the secretary of state for the 
 colonies by the governor-general. This act gives the parlia- 
 ment of Canada power to establish new provinces in any 
 territories of the Dominion of Canada, not already included in 
 any province, and to provide for the constitution and adminis- 
 tration of such provinces. Authority is also given to the 
 Canadian parliament to alter the limits of such provinces 
 with the consent of their legislatures. The previous legisla- 
 tion of 18G9 and 1870 respecting the province of Manitoba 
 and the Northwest, was sanctioned formally in the act.^ 
 
 In 1886, the imperial parliament, on addresses of the 
 Canadian parliament, also passed an act empowering the 
 latter body to provide for the representation in the Senate 
 and House of Commons, of any territories which may form 
 part of the Dominion, but are not included in any regularly 
 organized province. This measure was necessary to remove 
 doubts as to the validity of the Canadian act of 188(1, giving 
 representation to the territories in the Canadian parliament.'-^ 
 
 XI. Boundary Question.— For a number of years there was a 
 complicated dispute between the governments of Ontario and 
 Canada as to the boundary of the province on the north and 
 west. This question has given rise to a vast amount of legal 
 and political literature since tlie acquisition of the Nortlnvest 
 Territories, and it is necessary liere to state briefly its nature. 
 In 1878 three arbitrators were chosen on l)eliair of tlic 
 Dominion and Ontario governments to come to a settlement 
 
 'Imp. Stat. 34 and .3.j Vict., c. 28 ; sco App. B. For liislory of this ques- 
 tion, Sess. P. 1871, No. 20; Com. Jour. (1871), 130, M."), 201. Tlic Imp. Act 
 31 and 32 Vict., c. 92, cnahlfd tlio legislature of N<w Zealand to withdraw 
 a part of a territory from a province and form it into a county. 
 
 Miiip. Stat. 40 .-.0 Vict., c. 3.-., Aj.p. 1). ; Can. Stat., 49 Vict., c. 24. Tlio 
 N. VV. T. have now two niemhcrs in Senate, and four in Commons.
 
 78 PARLIAMENTARY INSTITUTIONS IN CANADA. 
 
 of the question.! They arrived subsequently at a unanimous 
 decision, but while the Ontario legislature accepted the award 
 as satisfactory and passed an act giving effect to the same, so 
 far as laid in the power of the province,^ the Dominion gov- 
 ernment took no steps whatever in the matter. The subject 
 remained in abeyance until 1884, when a case was arranged 
 for reference to the judicial committee of the privy council, 
 but before the case was argued, the Dominion government 
 withdrew, so that it went before their lordships only as affects 
 the boundary between Ontario and Manitoba. At an early 
 stage of the proceedings, their lordships decided that the 
 award was not binding, inasmuch as no legislation had taken 
 place to give effect to the same, but they found at the same 
 time that " so much of the boundary lines laid down by that 
 award as relates to the territory now in dispute between 
 Ontario and Manitoba to be substantially correct." Their 
 lordships did not express an opinion " as to the sufficiency or 
 otherwise of concurrent legislation of the provinces of Ontario 
 and Manitoba, and of the Dominion of Canada," but at the same 
 time think it " desirable and most expedient that an imperial 
 act of parliament should be passed to make this decision bind- 
 ing and effectual." ^ The result of this decision was a final 
 settlement of this vexed public question. Tiie Ontario govern- 
 ment has taken all the measures necessary to establish its 
 jurisdiction in the territory given to it by the decision in 
 question. As shown in another page, the question that was 
 subsequently raised with respect to the title to the Indian 
 lands in the disputed territory was decided by the courts in 
 favour of Ontario.^ In 1889 the imperial parliament passed 
 
 ^Ann. Reg. 1878, pp. 189-194. The arbitrator for Ontario was Chief Justice 
 Harrison ; for the Dominion, Sir Francis Hincks ; Sir Edward Thornton, 
 British Minister at Washington, was the third, chosen by the two conjointly. 
 See Ont. Sess. P., 1872-1887, for copious reports on this complicated question ; 
 especially the one by Hon. D. Mills, M.P., which contains instructive maps 
 compiled from authoritative sources. 
 
 ^See Ont. Stat. 42 Vict., c. 2. (Rev. Stat, of 1887, c 4.) 
 
 3L. N. 1884, pp. 281-282. See remarks of Mr. Blake, Can. Hans., 1885, pp. 
 17, 18 ; and of Sir J. A. Macdonald, lb., 23. Also April 13, 1888. 
 
 *See m/ra, 122.
 
 PEO VISIONS RESPECTING PROVINCES. 79 
 
 ijQ. act, in accordance with an address from the Canadian parlia- 
 ment, declaring the westerly, northerly, and easterly boundaries 
 of Ontario and carryinoj out ths decision of the privy council.^ 
 
 XII. Constitutional Provisions Respecting Provinces. — It is 
 provided in the British North America Act that the local 
 legislature may amend the constitution of a province, except 
 as regards the office of lieutenant-governor,^ and some pro- 
 vinces have availed themselves of the power thus conferred 
 by abolishing the legislative council, and extending the 
 duration of the legislature.^ The provisions relating to 
 the speaker, quorum, mode of voting, appropriation and tax 
 bills, money votes, assent to bills, disallowance of acts and 
 signification of pleasure on reserved bills — that is to say, the 
 provisions affecting the parliament of Canada extend to the 
 legislatures of the several provinces. Accordingly, any bill 
 passed by a legislature of a province may now be disallowed 
 by the Dominion government within one year after its receipt. 
 The lieutenant-governor may also reserve any bill for the 
 " signification of the pleasure of his excellency the governor- 
 general," and it cannot go into operation unless official inti- 
 mation is received within one year of its having been 
 approved.* 
 
 J Imp. Stat. 52-53 Vict., c. 28 (at beginning of Can. Stat. 1S90), and Ont. 
 Rev. Stat, for 1897 ; Can. Com. J. (1889), 385 ; Can. Hans. (1889), 1654-1658. 
 See Ont. Rev. Stat. (1887), c. 4. 
 
 ^Sec. 92, sub-sec. 1, and as respects provinces coming in after 1867, see Can. 
 Stat. 1870,0. 3, ss. 2, 10; 1872, p. Ixxxviii., ss. 10 and 14; 1873,pp. xii., xiii, etc. 
 
 "See mipra (British Columbia) 72; (Manitoba) 71 ; New Brunswick, 70; 
 Prince Edward Island, 71 ; also 66, 67, as to duration of Quebec legislature 
 extended to five jcars, and as to clianges in tlie representation in the legislar 
 tive assgmbly of the province ; 67 n. as to Ontario ; 69 as to Nova Scotia. 
 
 ♦Ss. 87, 90. Also Manitoba Act, 33 Vict., c. 3, ss. 2, 21 ; British Columbia, 
 1872, p. Ixxxviii., s. 10 ; V. ¥1. Island, p. xxii.
 
 CHAPTER II. 
 
 A REVIEW OF QUESTIONS OF 
 LEGISLATIVE JURISDICTION. 
 
 I. Distribution of Legislative Powers, p. 80. — II. Decisions of the Privy 
 Council of England, and of the Courts of Canada, on Questions of Legislative 
 Jurisdiction : Controverted Elections, p. 85 ; Fire Insui'ance, p. 87 ; Tempo- 
 ralities Fund of the Presb^'terian Church, p. 90 ; Sale, Manufacture, Pro- 
 hibition and Regulation of Intoxicating Liquors, p. 92 ; Competency of a 
 Provincial Legislature to License Brewers to Sell Liquors by the Wholesale, 
 p. 92; Canada Temperance Act, p. 94; Liquor Traffic in the Provinces, p. 97; 
 Prohibition of Sale of Liquors, p. 103 ; Fisheries, Harbours, and Navigable 
 Waters, p. 109 ; Escheats, p. 115 ; Precious Metals Case, p. 118 ; Questions 
 respecting Indian Lands, p. 119; Indian Claims Case, p. 122; Taxes on 
 Incorporated Companies, p. 124 ; Education, p. 125 ; Powers and Privileges 
 of the Governments and Legislatures of the Provinces, p. 127 ; Pi'ivileges of 
 Provincial Legislatures, p. 130. — III. Rules of Construction and Constitu- 
 tional Privileges laid down by Courts, p. 133. — IV. Disallowance of 
 Provincial Acts, p. 142. — V, Position of the Judiciary, p. 149. 
 
 I. Distribution of Legislative Powers.— In the distribution of 
 the legislative powers entrusted to the general parliament and 
 the local legislatures respectively, the constitution makes such 
 an enumeration as seems well adapted on the whole to secure 
 the unity and stability of the Dominion and at the same time 
 gives every necessary freedom to the several provinces in the 
 management of their local and municipal affairs. In arrang- 
 ing this part of the constitution, its framers had before them 
 the experience of eighty years' working of the federal system 
 of the United States, and were able to judge in what essential 
 and fundamental respects that system appeared to be* defec- 
 tive.^ The doctrine of state sovereignty had been pressed to 
 extreme lengths in the United States, and had formed one of 
 the most powerful arguments of the advocates of secession. 
 This doctrine had its origin in the fact that all powers, not 
 
 iSir J. A. Macdonald, Conf. Deb., 1865, p. 32. 
 
 80
 
 DISTRIBUTION OF LEGISLATIVE POWERS. 81 
 
 expressly conferred upon the general government, are reserved 
 by the constitution to the states.^ Kow, the federal constitu- 
 tion of Canada follows the very reverse principle, with the 
 avowed object of strengthening the basis of the confederation, 
 and preventing conflict as far as practicable between the pro- 
 vinces that compose the union.- This constitution emanates 
 from the sovereign authority of the imperial parliament, 
 which has acted in accordance with the wishes of the people 
 of the several provinces, as expressed through the constitu- 
 tional medium of their respective legislatures. This imperial 
 charter, the emanation of the combined wisdom of the imperial 
 parliament and the subordinate legislatures of the several 
 provinces aflected, confers upon the general government the 
 exclusive legislative authority over all matters respecting the 
 public debt, regulation of trade and commerce, postal service, 
 navigation and shipping, Indians, census and statistics, and 
 all other matters of Dominion import and significance.^ On 
 the other hand the local legislatures may exclusively make 
 laws in relation to municipal institutions, management and 
 sale of public lands belonging to the provinces, incorpora- 
 tion of companies with provincial objects, property and 
 civil rights in the province, and "generally all matters of a 
 merely local or private nature in the province."* The pro- 
 vincial legislatures have also exclusive powers of legislation 
 in educational matters, subject only to the right of the 
 
 'The 10th art. of tlie constitution of the U. S. reads: "The powers not 
 delegateil to the United States by the constitution, nor proiiibited by it to 
 the states, are reserved to the states respectively, or to the people." This 
 art. did not appear in the first constitution of 17S7, but was agreed to witli 
 other amendments by tlie first congress in 17S0, and sub.so(|ui'ntly ratified by 
 the states. See Smith's Cons. Manual and Digest, published by order of 
 Coni,'reHs, 1877. Also, Story on tlie Constitution (Cooley's 4th ed. ), ss. 1906- 
 1909 ; liourinot's Can. Studies in Comp. Politics, 44-48. 
 
 ^Sir.J. A. Macdonald, Conf. Deb., 1865, p. 33: "Wo have thus avoided 
 that great source of weakness which has been the cause of the disruption 
 of the United States. We have avnidcl nil cotiflicl of junsdictioii and 
 authority," etc. 
 
 ■"'B. N. A. Act, 1867, s. 91. See appendix to this lM>ok. 
 *n. N. A. Act, H. 92. 
 6
 
 82 LEGISLATIVE JURISDICTION. 
 
 Dominion parliament to make remedial laws under certain 
 circumstances.^ The object of this provision is to secure, as 
 far as practicable, by statute, to a religious minority of a 
 province, the same rights, privileges and protection which it 
 may have enjoyed at the time of the union.^ The local legis- 
 latures may, however, legislate as to separate schools, provided 
 that the legislation be not such as prejudicially affects the 
 rights or privileges theretofore possessed by such schools, and 
 they may pass laws interfering with unimportant matters 
 such as the election of trustees, or the every-day detail of the 
 working of such schools, as settled by statute prior to con- 
 f ederation.3 The . general parliament and local legislatures 
 have also concurrent powers of legislation respecting agi'icul- 
 ture and immigration, provided the provincial law is not 
 repugnant to any act of the parliament of Canada.* The 
 powers of the provincial governments are distinctly specified 
 in the act of union, whereas those of the general government 
 cover the whole ground of legislation not so expressly reserved 
 to the provincial authorities.^ The Dominion government is 
 authorized in express terms " to make laws for the peace, 
 order and good government of Canada in relation to all 
 matters not coming within the classes of subjects by this act 
 
 IB. N. A. Act, s. 93. 
 
 2 See New Brunswick school law controversy, Todd, Pari. Gov. in B. C, 
 2nd ed., 458 ; Can. Sess. P., 1877, No. 89. A reference to the correspondence 
 on this vexed question clearly shows that both the Imperial and Dominion 
 authorities concurred in the view that it is not proper for the federal authority 
 to attempt to interfere with the details or accessories of a measure of the local 
 legislature, the principles and objects of wliich are entirely within its com- 
 petency. See Manitoba school question, infra, p. 125 et seq. 
 
 3 Board of School Trustees v. Grainger et al, 25 Grant's Chan. R., 570. 
 * B. N. A. Act, s. 95. 
 
 5 "The government of the United States is one of enumerated powers, and 
 the governments of the states possess all the general powers of legislation. 
 Here (in Canada) we have the exact opposite. The powers of the provincial 
 governments are enumerated, and the Dominion government possesses the 
 general powers of legislation." Ritchie, C. J., Can. Sup. C. R., iii. 536.
 
 DISTRIBUTION OF LEGISLATIVE POWERS. 83 
 
 assigned exclusively to the legislatures of the provinces";^ and 
 in addition to this specific provision it is enacted that " any 
 matter coming within any of the classes of subjects enume- 
 rated in this section [that is, the 91st, respecting the powers 
 of general parliament] 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 assigned exclusively to 
 the legislatures of the provinces." 
 
 It must necessarily happen that, from time to time, in the 
 operation of a written constitution like that of Canada, doubts 
 will arise as to the jurisdiction of the general government 
 and local legislatures over such matters as are not very clearly 
 defined in the sections enumerating the powers of the respec- 
 tive legislative authorities. No grave difficulty should arise 
 in arriving sooner or later, as a rule, at a satisfactory solution 
 by means of the decisions of the judicial committee of the 
 privy council, and of the higher courts of the Dominion. An 
 act establishing a supreme court for Canada was passed in the 
 session of 1875, in accordance with the 101st section of the 
 British North America Act, 1867, which provides " for the 
 constitution, maintenance and organization of a general court 
 of appeal for Canada."^ This court has an appellate jurisdic- 
 tion in the case of controverted elections,^ and may examine 
 and report on any private bill or petition for the same.^ 
 It has also jurisdiction in cases of controversies between the 
 Dominion and the provinces themselves, on condition that the 
 legislature of a province sliall pass an act agreeing to such 
 legislation.^ In 1891, in order to meet cases of constitutional 
 
 ^HcQ infrit, 94; judgment of privy council re "Canad.a Temperance Act," 
 showing llie large jKjwers given to the Dominion government liy this provision 
 of tlie ]}. N. A. Act, 1H(;7. 
 
 * 38 Vict. , c. 11. 'I'iie provincial courts have equal power to declare any 
 Canadian statute unconstitutional ; tlie Kuj)reme court is a couit of appeal .ior 
 all the provinces and territories of the Dominion. 
 
 » fii/ra, 85. 
 
 *8en. J. (1870), 155, 206, 207 ; /l>. (1882), 143, 158-9, 273, 301-2. 
 
 6 Can. Rev. Stat. (1886), c. 135, sa. 72-74. The provincial legislatures have 
 passed acts to facilitate such references to the supreme court.
 
 84 LEGISLATIVE JURISDICTION. 
 
 difficulty that were frequently arising in the operation of the 
 British North America Act, 1867, parliament enlarged the 
 scope of the jurisdiction of the supreme court by allowing a 
 reference to that body by the governor-in-council, of import- 
 ant questions of law or fact touching provincial legislation or 
 the constitutionality of any legislation of the parliament of 
 Canada. The court can give reasons for its opinions on any 
 question referred to them, as in the case of a judgment upon 
 an appeal in the ordinary way. The opinion of the court, 
 although advisory only, shall, for all purposes of appeal to his 
 Majesty's council, be treated as a final judgment of the court 
 between parties.^ The supreme court of Canada, however, 
 can be considered a general court of appeal for the Dominion 
 in only a limited sense, for in addition to the power of appeal- 
 ing from the supreme court itself to the privy council of 
 England, there exists in every province the right of an appeal 
 direct from its appellate tribunals to the same imperial 
 tribunal. It is the continued practice of the judicial commit- 
 tee of the privy council "to entertain appeals from the 
 supreme court where it is considered that any error of 
 law has been made, and substantial interests have been 
 involved." ^ 
 
 II. Decisions of the Privy Council of England and of the Courts of 
 Canada on Questions of Legislative Jurisdiction.— Many important 
 cases of doubt as to the construction to be placed on the 91st 
 and 92nd sections of the British North America Act, 1867, 
 have already been referred to the privy council and to the 
 
 ^ 54-55 Vict. , c. 25. This provision is in accordance with suggestions made 
 by Mr. Edward Blake and other eminent constitutional authorities, who for 
 years recognized the necessity for a reasoned opinion of the supreme court on 
 important questions of law or fact. See Com. Hans., 1890, vol. 2, pp. 4083- 
 4094, for remarks of Sir John Macdonald and Mr. Blake ; also remarks of Sir 
 John Thompson, March 6, 1893, pp. 1790-1819, Com. Hans. 
 
 2 See Cassells, 4, 75, 76 ; L. N. (1889), 281, 283. Can. Rev. Stat. (1886), c. 
 135. The judgment of the supreme court is now final in criminal matters. 
 See 51 Vict., 43, repealing 50-51 Vict., c. 50, s. 1, sub-s. 5. By 50-51 Vict., c. 16, 
 all original exchequer court jurisdiction was taken away from the supreme court 
 judges, and an exchequer court, composed of one judge, specially constituted.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 85 
 
 supreme court of the Dominion. Already in Canada, as in the 
 United States, a hirge amount of constitutional learning and 
 research is being brought every year to the consideration of 
 the perplexing questions that must unavoidably arise in the 
 interpretation of a written constitution.^ In the following 
 pages I cite some of the more important decisions given by the 
 high tribunals just mentioned, with the view of showing the 
 conclusions they have formed with respect to certain legis- 
 lative powers of the Dominion parliament and provincial 
 legislatures. 
 
 Controverted Elections. 
 
 In 1874, the Dominion parliament passed an act imposing 
 on the judges of the superior courts of the provinces the duty 
 of trying controverted elections of members of the House of 
 Common.s.^ The question was raised in the courts, whether 
 the act contravenes that particular provision of the 92nd 
 section of the B. N. A. Act which exclusively assigns to the 
 provincial legislatures the power of legislating for the admin- 
 istration of justice in the provinces, including the constitution, 
 maintenance and organization of provincial courts of civil 
 and criminal jurisdiction, and including procedui'e in civil (not 
 in criminal) matters in those courts. The question came at 
 last before the supreme court of Canada, which unanimously 
 held : 
 
 That whether the act established a Dominion court or not, 
 the Dominitm parliaincnt had a perfect right to give to the 
 superior courts of the respective provinces, and the judges 
 then.'oi', the power, and impose upon them the duty, of trying 
 controverted elections of members of the House of Commons, 
 and did not, in utilizing existing judicial officers and estab- 
 lished courts to discharge the duties assigned to tlieTn by that 
 act, in any particular invade the rights oi" tlie local legis- 
 
 ' See Cartwright'H cases iiiidir lln' Ti. N. A. Act of 1867, n vols., already 
 issind fioii) 1882 to 1890. 
 
 ^"'I'lio Dominion Controverted Kkction.s Act, 1S7J": .'{7 Vict., c. 10. 
 (Rev. Stat, of lSS(i, e. 9).
 
 86 LEGISLA TIVE J URISDIGTION. 
 
 latures. That the Dominion parliament has the ri^ht to 
 interfere with civil rights, when necessary for the purpose of 
 legislating generally and efTectually in relation to matters 
 contided to the parliament of Canada. That the exclusive 
 power of legislation given to provincial legislatures by sub-s. 
 14 of s. 92, B. N. A. Act, over procedure in civil matters, means 
 procedure in civil matters within the powers of the provincial 
 legislatures.^ 
 
 Application was made to the privy council for leave to 
 appeal from the foregoing judgment of the supreme court. 
 Their lordships, in refusing such leave, expressed these opin- 
 ions: That there is no doubt about the power of the Dominion 
 parliament to impose new duties upon the existing provincial 
 courts, or to give them new powers as to matters wdiich do 
 not come within the classes of subjects assigned exclusively to 
 the legislatures of the provinces. That the result of the 
 wdiole argument offered to their lordships had been to leave 
 them under the impression that there was here no substantial 
 question requiring to be determined, and that it would be 
 much more likely to unsettle the minds of her Majesty's 
 subjects in the Dominion, and to disturb in an inconvenient 
 manner the legislative and other proceedings there, if they 
 were to grant the prayer of the petition and so throw a doubt 
 on the validity of the decision of the court of appeal below, 
 than if they were to advise her Majesty to refuse it.^ 
 
 In a later case it was decided that no appeal from the 
 decision of the supreme court of Canada in a controverted 
 election case wall be entertained by the privy council of 
 England. In giving their judgment their lordships stated that 
 there are strong reasons why such matters should be decided 
 
 ^ Can. Sup. C. R. , iii. 1 ( Valin v. Langlois). This case came before the 
 court on appeal from the judgment of Chief Justice Meredith, of the superior 
 court of Quebec, declaring the act to be within the competency of the Dominion 
 parliament, 5 Q. L. R., No. 1. The Ontario court of common pleas in 1878 
 unanimously agreed that the act was binding on them. Ont. Com. P. R., 
 vol. xxix. , 261. But certain judges of Quebec held adverse opinions. Quebec 
 L. R., vol. v., p. 191. 
 
 25 App. Cas. 115 ; Cart., i. 158.
 
 DECISIONS ON QUESTIONS OF JUPdSDICTION. 87 
 
 within a colony, especially it is " most important that no long 
 time should elapse before the constitution of the body is 
 known ; and yet if the Crown is to entertain appeals in such 
 cases, the necessary delays attending such appeals would 
 greatly extend the time of uncertainty — which the legislature 
 has striven to limit." ^ 
 
 Fire Insurance. 
 
 In 1876, the legislature of Ontario passed an act ^ inti- 
 tuled " An act to secure uniform conditions in policies of fire 
 insurance." This statute was impeached on the ground mainly 
 that the legislature of Ontario had no power to deal with the 
 general law of insurance ; that the power to pass such enact- 
 ments was within the legislative authority of the Dominion 
 parliament, under s. 91, sub-s. 2, B. N. A. Act, " regulation 
 of trade and connnerce." The question having come before 
 the supreme court of Canada, it held that the act in question 
 was within the competency of the Ontario legislature, and is 
 applicable to insurance companies, whether foreign or incor- 
 porated by the Dominion.^ 
 
 The question came finally before the privy council on appeal 
 from the supreme court of Canada, and their lordships decided : 
 That constiniing the words " regulation of trade and commerce " 
 by the various aids to their interpretation, they would include 
 political arrangements in regard to trade and requiring the 
 sanction of parliament, regulation of trade in matters of 
 inter-provincial concern, and it may be that they would include 
 general regulation of trade afiecting the whole Dominion. 
 Their lordships, however, abstained from any attempt to define 
 
 * f Jlengarry Case, Kennedy v. Piircell, 7th July, 1888. See Cassells's Practice, 
 86; Can. Sup. C. R., xiv. 453-;}ir). 
 
 »39 Vict., c. 24 ; Oni. Rev. Stat., c. 167. 
 
 'Can. Sup. C. R., iv. 215. The Citizenw and tlie l^ucen Ins. Cos. v. Paraons, 
 Western Insurance Co. v. Johnston. Tliis ju<lj5inent of the supremo court 
 aflTirmed the judgnifiitH of the court of appeal for Ontario (4 App. Hep., Out., 
 96, lO.S), which had affirmed the judgments of the queen's bench ; 43 U. C, 
 Q.B.,2G1, 271.
 
 88 LEGISLATIVE JURISDICTION. 
 
 the limits of the authority of the Dominion parliament in this 
 direction. It is sufficient for the decision of the case under 
 review to say that, in their view, its authority to legislate for 
 the regulation of trade and commerce does not comprehend 
 the power to regulate by legislation the contracts of a particular 
 business or trade, such as the business of fire insurance, in a 
 single province, and therefore that its legislative authority 
 did not in the present case conflict or compete with the power 
 over property and civil rights assigned to the legislature of 
 Ontai-io by sub-section 13 of section 92. That the act in ques- 
 tion, so far as relates to insurance or property within the 
 province, may bind all fire insurance companies, whether 
 incorporated by imperial, dominion, provincial, colonial or 
 foreign authority. That the act of the Dominion parliament,^ 
 requiring insurance companies to obtain licenses from the 
 minister of finance as a condition to their carrying on business 
 in the Dominion, is a general law applicable to foreign and 
 domestic corporations, and in no way interferes with the 
 authority of the Ontario legislature to legislate in relation to 
 the contracts which corporations may enter into in that 
 province.^ 
 
 Since the first session of the Dominion parliament many 
 statutes have been passed relating to insurance and insurance 
 companies. The local legislatures have also granted acts of 
 incorporation to companies that do business within the limits of 
 a province. It is now authoritatively decided that the terms 
 of paragraph eleven of section 92 (giving powers to provincial 
 legislatures for provincial objects), are considered sufficiently 
 comprehensive to include insurance companies, whose object is 
 to transact business within provincial limits. If a company 
 desire to carry on operations outside of the province, it will 
 come under the provisions of the general federal law, to which 
 it must conform, and which contains special provisions for 
 
 1.38 Vict, c. 20. 
 
 ^4~) L. T. N. S. 721 ; Cart., i. 265. The Citizens and Queen Insurance Cos. 
 V. Parsons.
 
 DECISIOXS ON QUESTIONS OF JURISDICTION. 89 
 
 such purposes.^ The Dominion parliament may give power to 
 contract for insurance against loss or damage by fire, but the 
 form of the contract, and the rights of the parties thereunder, 
 must depend upon the laws of the country or province in 
 which the business is done.^ Policies of insurance being mere 
 contracts of indemnity against loss by fire, are, like any other 
 personal contracts against parties, governed by local or provin- 
 cial laws. The provincial legislature has the power to regulate 
 the leofal incidents of contracts to be enforced within its courts, 
 and to prescribe the terms upon which corporations, either 
 foreign or domestic, shall be permitted to transact business 
 within the limits of the province — the power being given to 
 local legislatures by the constitution to legislate upon civil 
 rights and property.^ 
 
 The privy council, in their judgment, confirming that of the 
 Canadian courts, made special reference to the fact that 
 Dominion legislation has distinctly recognized the right of the 
 provincial legislatures to incorporate insurance companies for 
 caiTying on business within the province itself.'* 
 
 In this connection it is necessary to refer to the fact that 
 certain legislation in the province of Quebec affecting insurance 
 companies has been declared beyond the competency of the 
 local legislature. The act in question (39 Vict., chap. 7) imposed 
 a tax upon the policies of such insurance companies as were 
 doing business within the province. The statute enacts : That 
 every assurer carrying on any business of assurance, other 
 tlian that of marine assurance exclu.sively, shall be bound to 
 take out a license in each year, and that the price of such 
 license shall consi.st in the payment to the Crown for the use 
 of the province at the time of the i.ssue of nn}' policy or 
 making ov delivery of each premium, receipt, or renewal, of 
 certain percentages on the amount received as priininin on 
 
 'Fournier, J., Can. Sup. C. R., iv. 277, 278. 
 
 •Harrison, C.J., 43 U. C. Q.B. 2r,l ; Doutre, 207. 
 
 »4 0nt. App. 109. 
 
 *See 40 Vict., c. 42, s. 28 ; Rev. Stat, of Can., c. 124, 8. 3.
 
 90 LEGISLATIVE JURISDICTION. 
 
 renewal of assurance, such payments to be made by means of 
 adhesive stamps to be affixed on the policy of assurance, 
 receipts, or renewals. For each contravention of the act a 
 penalty of fifty dollars is imposed. 
 
 The question of the constitutionality of the act came before 
 the judicial committee of the privy council, who decided : That 
 the act was not authorized by sub-sections two and nine of 
 section ninety-two of the B. N. A. Act with respect to direct 
 taxation and licenses for raising a revenue for provincial, local 
 or municipal purposes. That a license act by which a licensee 
 is compelled neither to take out nor pay for a license, but 
 which merely provides that the price of a license shall consist 
 of an adhesive stamp, to be paid in respect of each transaction, 
 not by the licensee, but by the person who deals with him, is 
 virtually a stamp act, and not a license act. That the imposi- 
 tion of a stamp duty on policies, renewals and receipts, with 
 provisions for avoiding the policy, renewal or receipt in a 
 court of law, if the stamp is not affixed, is not warranted by 
 the terms of sub-section two of section ninety-two, which 
 authorizes the imposition of direct taxation within a province 
 in order to raise a revenue for provincial purposes.^ 
 
 Tetnporalities Fund of the Presbyterian Church. 
 
 In pursuance of authority given by the imperial act (16 
 Vict., c. 21), the province of Canada passed an act (18 Vict., c. 
 82), in consequence of which, in 1855, an aiTangement was 
 made with the government for the erection of a temporalities 
 fund of the Presbyterian church of Canada in connection with 
 the church of Scotland ;2 and an act of incorporation for the 
 management thereof was obtained (22 Vict., c. 66) of the 
 
 ^3 App. Cas. 1090 ; Cart., i. 117. On appeal from a judgment of the court 
 of queen's Vjench of Quebec, affirming a judgment of the superior court of 
 Lower Canada that the act is ultra vires. 16 L. C. J., 198 ; 21 lb. 77 ; 22 lb. 
 307. See hifra, 124, for a later decision upon a Quebec statute imposing taxes 
 on commercial corporations. 
 
 ' This church was entitled to share in the proceeds of the clergy reserves 
 funds by virtue of certain imperial statutes. See supra, 32.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 91 
 
 province of Canada. In 1874 it was decided to unite the said 
 cliurch "svith three other churches. Subsequently in the pro- 
 vinces of Ontario and Quebec, the leo'islatures passed two acts 
 (38 Vict., c. 75, Ont. Stat., and 38 Vict., c. 62, Quebec Stat.), to 
 give effect to this union. At the same time the Quebec legis- 
 hiture passed an act (38 Vict., c. 64) to amend the act of the 
 kite province of Canada (22 Vict., c. 66), with a view to the 
 union of the four churches, and to provide for the administra- 
 tion of the temporalities fund. The union was subsequently 
 carried out in accordance with the views of the large majority 
 of the church in question ; but a small minority protested 
 against the union, and tested the validity of the Quebec act 
 (38 Vict., c. 64). The matter was finally carried up to the 
 privy council, which decided : That the act (22 Vict., c. 66) of 
 the province of Canada, which created a corporation having its 
 corporate existence and rights in the provinces of Ontario and 
 Quebec, afterwards created by the B. N. A. Act, could not, 
 after the coming into force of that act, be repealed or modified 
 by the legislature of either of these provinces, or by the con- 
 joint operation of both provincial legislatures, but only by the 
 pai'liament of the Dominion. That the Quebec act of 1875 (38 
 Vict., c. 64), which assumed to repeal and amend the act of 
 the late province of Canada, was invalid, inasmuch as its pro- 
 fessed oljject and the effect of its provisions was to destroy, in 
 the first place, a coi*poration which had been created by the 
 legislature of Canada before the union of 1867, and to substi- 
 tute a new corpoi-ation ; and, in the second place, to alter 
 materially the class of persons interested in the corporate 
 funds, and not merely to impose conditions upon the transac- 
 tion of business by the corporation within the province.^ 
 
 The result of this judgment was the passage of an act by 
 the parliament of Canada in 1882, to amend the act of the 
 late province of Canada (22 Vict., c. 66), with respect to the 
 
 '7 App. Cas. 1.36: Cart., i. .351; Dobio v. tho Temporalities Board. 
 Appeal on Hpecial leave from a jiidgmciit of tho court of (jueen'H heiicli (.S L. 
 N. , 244), affirming a judgment of the superior court of the district of Mont- 
 real (3 L. N., 244) ; Doutre, 247.
 
 92 LEGISLATIVE JUEISDICTION. 
 
 "management of the temporalities fund of the Presbyterian 
 church of Canada, in connection with the church of Scotland," 
 and the acts amending the same.^ 
 
 The Sale, Manufacture, Prohibition and Regulation of 
 
 Intoxicating Liquors. 
 
 « 
 
 Among the most perplexing questions that have come for 
 adjudication before the courts of Canada and judicial com- 
 mittee of the privy council, are controversies as to the powers 
 of the Dominion parliament and the provincial legislatures 
 with respect to the manufacture, sale, prohibition, and regu- 
 lation of intoxicating liquors. I give below in liistorical 
 order the most authoritative decisions which have so far been 
 delivered by the courts of last resort with respect to these 
 intricate subjects. 
 
 The Competency of a Provincial Legislature to License 
 Brewers to Sell Liquor by Wholesale. 
 
 In 1874, the legislature of Ontario passed an act intituled 
 "An act to amend and consolidate the law for the sale of 
 fermented or spirituous liquors." ^ The provisions of this act 
 required that no person should "sell by wholesale or retail 
 any spirituous, fermented, or otlier manufactured liquors 
 within the province of Ontario, without having first obtained 
 a license under this act, authorizing him to do so." The 
 question was brought before the courts, whether the legisla- 
 ture of Ontario had the power to pass the statute, under which 
 certain penalties were to be recovered, or to require brewers 
 to take out any license whatever for selling fermented or 
 malt liquors by wholesale. The matter came finally, on 
 appeal, before the supreme court of Canada,^ which decided 
 substantially as follows: 
 
 145 Vict., c. 124. Also, cc. 123 and 125. 
 237 Vict., c. 32 ; Ont. Rev. Stat. (1877), c. 181, ss. 39, 40, 41. 
 ^ Severn v. the Queen, on appeal from queen's bench of Ont. ; Can. Sup. C. 
 R., ii., 70; 36 U. C. Q. B., 218.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 93 
 
 That it is not within the competency of a provincial legisla- 
 ture to require brewers to take out a license for the sale of 
 fermented or malt liquors by wholesale ; that the power to 
 tax and regulate the trade of a brewer, being a matter of 
 excise, the raising of money by " taxation," as well as for the 
 restraint and "regulation of trade and commerce," is comprised 
 within the class of subjects reserved by the ninety-first section 
 of the British North America Act, to the exclusive legislative 
 authority of the parliament of the Dominion; and that such a 
 license, imposed by a provincial statute, is a restraint and 
 recrulation of trade, and not an exercise of municipal or police 
 power. That the taxing power of a provincial legislature is 
 confined to direct taxation^ (sub-s. 2, s. 92), in order to raise 
 a provincial revenue, and to the granting of licenses to shops, 
 saloons, taverns, auctioneers, and " other licenses " for purely 
 local and municipal objects. The majority of the court applied 
 the rule ejusclem generis to the foregoing subjects, and were 
 of opinion that the words " other licenses " should be limited 
 to licenses which might be required for objects whicli were 
 merely municipal or local in their character. 
 
 Tliis decision was regarded as binding on all courts in the 
 Dominion until the privy council gave judgment in 1897 in 
 the Brewers' and Maltsters' Association case,^ wherein they 
 held that an Ontario statute (R. S. O., c. 194, s. 51, sub-s. 2) 
 requiring every brewer, distiller or other person, though duly 
 licensed by the government of Canada for the manufacture 
 and sale of fermented, spirituous and other liquors, to take out 
 licenses to sell the liquors manufactured by them, and pay a 
 license therefor, was ultra vires. Their lordsliii)S not only 
 decided that the license fee imposed upon brewers and dis- 
 tillers which they were dealing with was a direct tax, but 
 went on to say: — Their lordships were not satislicd by the 
 argument of the learned counsel for the aj)pellants, that the 
 license which the enactment renders necessary (sc, a license 
 
 ^So affirmed by the judicial cominitteo of the privy founcil, Attorney- 
 General of Quebec x\ the Queen Insurance Co., L. R. 3 App. Cas. 1090. 
 
 *A. C. (1897), 2.31, afTirming the judgment of tho Ont. Court of Appeal, 
 Jan. 4, 1896. Sec Lefro}-, 679, n.
 
 94 LEGISLATIVE JURISDICTION. 
 
 on brewers and distillers within the province to sell whole- 
 sale) is not a license within the meaning of sub-section 9 of 
 section 92. They do not doubt that general words may be 
 restrained to things of the same kind as those particularized, 
 but they are unable to see which is the genus which would 
 include "shop, saloon, tavern and auctioneers' licenses, and 
 which would exclude brewers' and distillers' licenses;" "and 
 thus," adds aptly a legal critic, " they destroy the authority of 
 Severn v. the Queen upon the one point on which, if any, its 
 authority remains unimpaired."-^ 
 
 Canada Temperance Act. 
 
 In 1878, the parliament of the Dominion passed an act cited 
 as the "Canada Temperance Act, 1878." ^ The preamble sets 
 forth " that it is very desirable to promote temperance in the 
 Dominion, and that there should be uniform legislation in 
 all the provinces regarding the traffic in intoxicating liquors." 
 The act is divided into three parts, the first of which relates 
 to " proceedings for bringing the second part of this act into 
 force;" the second to "prohibition of traffic in intoxicating 
 liquors;" and the third to "penalties and prosecutions for 
 offences against the second part." The effect of the act when 
 brought into force in any county or town within the Dominion 
 is, describing it generally, to prohibit the sale of intoxicating 
 liquors, except in wholesale quantities, or for certain specified 
 purposes, to regulate the traffic in the excepted cases, and to 
 make sales of liquors, in violation of the prohibitions and 
 regulations contained in the act, criminal offences punishable 
 by fine, and for the third or subsequent offence, by imprison- 
 ment. The supreme court of New Brunswick in 1879 
 decided ^ that the act was ultra vires, but the supreme court 
 of Canada subsequently held that it was within the compet- 
 ency of the parliament of Canada, and inter alia that under 
 the second sub-section of the 91st section of the B. N. A. Act, 
 
 1 See Lefroy, 27 «, 679, 72.3-726. 
 
 241 Vict. c. 16 ; Rev. Stat, of Can. c. 106. 
 
 3 3 Pug. and Bur., 1.39.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 95 
 
 "regulation of trade and commerce," parliament alone has the 
 
 power of regulating the trafl&c in intoxicating liquors in the 
 
 Dominion or any part of it.^ The whole matter came finally 
 
 before the privy council, who base their decision on grounds 
 
 which render it unnecessary to discuss the question of trade 
 
 and commerce. Their lordships considered fully the point 
 
 whether the act falls within any of the three classes of 
 
 subjects enumerated in section 92 and assigned exclusively to 
 
 the provincial legislatures, viz. : 
 
 9. Shop, saloon, tavern, auctioneer, and other licenses in order to the 
 raising of a revenue for provincial, local or municipal purposes. 
 
 13. Property and civil rights in the province. 
 
 16. Generally, all matters of a merely local or private nature in the 
 province. 
 
 Their lordships decided that the act does not fall within 
 any of these classes of subjects, for the following reasons: The 
 act is not a fiscal law — a law for raising revenue ; on the con- 
 trary the effect of it may be to destroy or diminish revenue ; 
 and consequently could not have been passed by the provincial 
 legislature by virtue of any authority conferred upon it by 
 sub-section 9. And supposing the effect of the act to be 
 prejudicial to the revenue derived by the nmnicipality from 
 licenses, it does not follow that the Dominion parliament 
 might not pass it by virtue of its general authority " to 
 make laws for the peace, order and good government of 
 Canada." The act does' not properly belong to the class of 
 subjects, "property and civil rights," It has in its legal aspect 
 an obvious and close similarity to laws which place restrictions 
 on the sale or custody of poisonous drugs, or of dangerously 
 explosive substances. The primary matter dealt with is the 
 public order and safety. Upon the same considerations 
 tiie act cannot be regarded as legislation in relation to civil 
 riglits. In however large a sense these words are used, it 
 could not have been intended to prevent the parliament of 
 Canada from d(!c]aring and enacting cci'tain uses of property 
 and certain acts in relation to property, to be criminal and 
 
 »Can. Sup. C. R., vol. iii. 505,
 
 96 LEGISLATIVE JURISDICTION. 
 
 wrono-ful. Laws designed for the promotion of public order, 
 safety or morals, and which subject those who contravene 
 them to criminal procedure and punishment, belong to the 
 subject of public wrongs rather than to that of civil rights. 
 They are of a nature which fall within the general authority 
 of parliament, to make laws for the order and good govern- 
 ment of Canada, and have direct relation to criminal law, 
 which is one of the enumerated classes of subjects assigned 
 exclusively to the parliament of Canada. Few, if any, laws 
 could be made by the parliament for the peace, order and 
 ' good government of Canada which did not in some incidental 
 way affect property and civil rights ; and it would not have 
 been intended, when assuring to the provinces exclusive legis- 
 lative authority on the subject of property and civil rights, 
 to exclude the parliament from the exercise of this general 
 power, whenever any such incidental interference would result 
 from it. Their lordships cannot concur in the view that the 
 act "which in effect authorizes the inhabitants of each town 
 or parish to regulate the sale of liquor, and to direct for whom, 
 for what purposes and under what conditions spirituous 
 liquors may be sold therein, deals with matters of a merely 
 local nature." On the contrary, the declared object of, parlia- 
 ment in passing the act is that there should be uniform 
 legislation in all the provinces respecting the traffic in intoxi- 
 cating liquors, with a view to promote temperance in the 
 Dominion. The act as soon as it was passed became a law for 
 the whole Dominion, and the enactments of the first part 
 relating to the machinery for bringing the second part into 
 force, took effect and might be put into motion at once and 
 everywhere within it. The conditional application of certain 
 parts of the act does not convert the act itself into legislation 
 affecting a purely local matter.^ The legislation in question 
 is clearly meant to apply a remedy to an evil which is assumed 
 to exist throughout the Dominion, and the local option, as it is 
 called, no more localizes the subject and scope of the act than 
 a provision in an act for the prevention of contagious diseases 
 
 1 See judgment of Allen, C. J., 3 Pug. and Bur., 139.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 97 
 
 in cattle that a public officer should proclaim in what districts 
 it should come into effect, would make the statute itself a 
 mere local law for each of these districts. In statutes of this 
 kind the legislation is general, and the provision for the 
 special application of it to particular places does not alter 
 its character.^ 
 
 Liquor Trajffic in the Provinces. 
 
 The immediate effect of this important judgment on the 
 Temperance Act was the passage by the parliament of Canada, 
 in the session of 1883, of "An act respecting the sale of 
 intoxicating liquors and the issue of licenses therefor." The 
 preamble of the act set forth as the grounds for legislation 
 that "it is desirable to regulate the traffic in the sale of 
 intoxicating liquors; that there should be a uniform law 
 regulating the same throughout the Dominion ; that provision 
 should be made for the better preservation of peace and 
 order." The act provided for the issue of licenses to hotels, 
 saloons, shops, vessels and wholesale dealers, and exacted only 
 such fees as are necessary to the execution of the act.^ 
 
 Subsequent to the passage of this act, the judicial committee 
 of tiie privy council rendered a judgment which had a very 
 important bearing on the question of jurisdiction in the 
 matter of the regulation of liquor traffic in a province, and 
 consequently on the constitutionality of the measure just 
 mentioned. The fourth and fifth sections of the liquor 
 license act ^ of Ontario, which came under the review of the 
 
 * Judgment of the lords of tlie judicial committee of the privy council on the 
 appeal of Charles Russell v. the Queen, on the information of Woodward, from 
 tho supreme court of New Brunswick, delivered '2:h<l June, 1882. 7 App. 
 Cas., 829; Cart., ii. 12. 
 
 *46 Vict., c. 30 ; (see reference to subject in His Excellency's speech, Jour., 
 1883, p. 14). Uut strong objections were taken in the House of Commons to 
 the act, on tlic j^round (as set fortli in a resolution) tliat " IIh^ pailiaiMciit of 
 Canada slionld not asHunio jurisdiction, as proposed l)y the said bill, until tlie 
 question of jurisdiction had been settled by the court of last resort." Can. 
 Com. J., 1883, May 22. See Can. Hans., May 16, 21 and 22. 
 
 8R. 8. 0. (1877)0. 181. 
 7
 
 98 LEGISLATIVE JURISDICTION. 
 
 privy council on the appeal of Hodge v. the Queen from the 
 court of appeal of the province, authorized the appointment 
 of license commissioners to act in each municipality, and em- 
 powered them to pass resolutions for defining the conditions 
 and qualifications requisite to obtain tavern or shop licenses 
 for sale by retail of spirituous liquors within the municipality ; 
 for limiting the number of licenses ; for declaring that a 
 limited number of persons qualified to have tavern licenses 
 may be exempted from having all the tavern accommodation 
 required by law; for regulating licensed taverns and shops; 
 for defining the duties and powers of license inspectors. 
 These commissioners might also impose penalties for an in- 
 fraction of their resolutions. The sale of intoxicating liquors 
 was also prohibited in the act, under penalties, from Saturday 
 evening, 7 o'clock, to Monday morning, 6 o'clock. 
 
 By virtue of this act, the license commissioners of Toronto 
 passed certain resolutions for the regulation of taverns and 
 shops in that city. Subsequently, Mr. Hodge, a proprietor of 
 an hotel, who was duly licensed to sell liquor, and to keep a 
 billiard saloon, was convicted and fined before the police 
 magistrate of Toronto, for unlawfully permitting a billiard 
 table to be used, and a game to be played thereon, during the 
 time prohibited by the act, and by the resolution of the com- 
 missioners ; that is, after 7 o'clock on Saturday night. The 
 conviction was quashed by the court of queen's bench as 
 illegal. Assuming the right of the legislature of Ontario to 
 legislate on the subject, the court held that it could not 
 devolve or delegate its powers to the discretion of a local 
 board of commissioners. The case was then taken to the 
 court of appeal for Ontario, which reversed the decision of the 
 queen's bench and afiirmed the conviction. The court decided 
 substantially that the provincial legislature, and it alone, had 
 the power to pass laws for the infliction of penalties or im- 
 prisonment for the enforcement of a law of a province in 
 relation to a matter coming within a class of subjects with 
 which alone the province had the right to deal ; and that the
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 99 
 
 legislature had power to delegate its authority as it had done 
 in the matter in question.^ 
 
 On the question at issue coming before the judicial com- 
 mittee of the privy council, their lordships were of opinion 
 that the decision of the court of appeal of Ontario should be 
 affirmed, and the appeal dismissed with costs. They first 
 reviewed the argument of the appellants that the legislature 
 of Ontario had no power to pass any act to regufete the liquor 
 traffic ; that the whole power to pass such an act was con- 
 ferred on the Dominion parliament, and consequently taken 
 from the provincial legislature by section 91 of the British 
 North America Act; and that it did not come within any of 
 the classes of subjects assigned exclusively to the provincial 
 legislatures by section 92. The clause in section 91 which the 
 liquor license act, 1877, was said to infringe, was No. 2, " the 
 regulation of trade and commerce ; " and it was urged that 
 the decision of their lordships in Russell v. the Queen was 
 conclusive — " that the whole subject of the liquor traffic was 
 given to the Dominion parliament, and consequently taken 
 away from the provincial legislatures." It appeared, however, 
 to their lordships that the decision mentioned " has not the 
 effect supposed, and that, when properly considered, it should 
 be taken rather as an authority in support of the judgment of 
 the court of appeal." Tlie sole question there was, " whether 
 it was competent for the Dominion parliament, under its 
 general powers, to make laws for the peace, order and good 
 government of the Dominion, to pass the Canada Temperance 
 Act, 1878, which was intended to be applicable to the several 
 provinces of the Dominion, or to such parts of the provinces as 
 should locally adojjt it." They then proceed to (luote portions 
 of the previous judgment in Russell and the Queen to show 
 that the matter of the act in question does not properly belong 
 to the class of subjects " property and civil rights," within the 
 meaning of sub-section 13, Ijut is rather one of those matters 
 relating to public order and safety, whicli fall within the gen- 
 eral authority of parliament to make laws for the order and 
 
 'See 7 Ont. App. Rep., 246 ; 46 U. C. Q. B., 141.
 
 100 LEGISLATIVE JURISDICTION. 
 
 good government of Canada.^ It therefore appeared to their 
 lordships that Russell v. the Queen, when properly understood, 
 is not an authority in support of the appellant's contention, 
 and their lordships did not intend to vary or depart from the 
 reasons expressed for their judgment in that case. The 
 principle which that case and the case of the Citizens' Insur- 
 ance Company illustrate is, that "subjects which in one aspect 
 and for one purpose fall within section 93, may in another 
 aspect and for another purpose fall within section 91." ^ 
 
 In considering the subject-matter and legislative character 
 of sections four and five of the License Act of Ontario (as 
 given in a previous page) their lordships pointed out that 
 the act " is so far confined in its operations to municipalities 
 in the province of Ontario, and is entirely local in its character 
 and operation." The matters dealt with in the sections men- 
 tioned " seem to be of a purely local nature in the province, 
 and to be similar to, though not identical in all respects with, 
 the powers then belonging to municipal institutions under the 
 previously existing laws passed by the local parliaments." 
 Their lordships consequently decided : " The powers intended 
 to be conferred by the act in question, when properly under- 
 stood, are to make regulations in the nature of police or muni- 
 cipal regulations of a merely local character for the good 
 government of taverns, etc., licensed for the sale of liquors by 
 retail, and such as are calculated to preserve, in the municipality, 
 peace and public decency, and repress drunkenness and dis- 
 orderly and riotous conduct. As such they cannot be said to 
 interfere with the general regulation of trade and commerce 
 
 ^ Supra, 95. 
 
 *In the case of the corporation of Three Rivers and Suite, the court of 
 queen's bench of Quebec has given a decision, holding precisely in principle 
 what the privy council has held in the Hodge case. See Mr. Justice Ramsaj-'s 
 judgment, 5 L. N., 330. Also Poulin and the corporation of Quebec, 72 
 Q. L. R., 387 ; 5 L. N., 3,334 ; 6 lb. 209, 214. In the first mentioned case the 
 supreme court of Canada (Rep. vol. xi. 25,) sustained the decision of the court 
 of queen's bench of Quebec, and declared the Quebec License Act (41 Vict., 
 c. 3) intra vires of the legislature of that province. The case of Hodge v. the 
 Queen was considered by the court to cover the constitutional ground.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 101 
 
 which belongs to the Dominion parliament, and do not conflict 
 with the provisions of the Canada Temperance Act, which does 
 not appear to have as yet been locally adopted. The subjects 
 of legislation in the Ontario Act of 1877, sections 4 and 5, seem 
 to come within the heads 8, 15 and 16^ of section 92 of the 
 British North America Act, 1867. Their lordships are, there- 
 fore, of opinion that in relation to sections 4 and 5 of the act 
 in question, the legislature of Ontario acted within the powers 
 conferred upon it by the imperial act of 1867, and that in this 
 respect there is no conflict with the powers of the Dominion 
 parliament." 
 
 We have cited, in the foregoing paragraph, the most material 
 part of the decision ; but their lordsliips went further^ and 
 considered the objection raised by the appellant — that the 
 imperial parliament had conferred no authority on the local 
 legislature to delegate its powers to the license commissioners 
 or any other persons. In other words, that the powers con- 
 ferred by the imperial parliament on the local legislature 
 should be exercised in full by that body, and by it alone. 
 This objection, in their opinion, is founded on an entire mis- 
 conception of the true chai-acter and position of the provincial 
 legislatures, " wliich are in no sense delecjates of, or actino- 
 under any mandate from, the imperial parliament." Their 
 lordships stated emphatically that when the British North 
 America Act enacted that there should be a legislature for 
 Ontario, and that its legislative assembly should have exclu- 
 sive authority to make laws for the provinces and for 
 provincial purposes in relation to the matters enumerated 
 in section 92, "it conferred powers not in any sense to be 
 exercised by dc.'legation from, or as agents of the imperial 
 parliament, but authority as plenary and as ample within the 
 limits presci'ibcd by section 92, as the imperial parliament, 
 
 '8. "Municipal institutioiiH in the province." 15. "The imposition of 
 punishment by fine, penalty, or inijjriHonnient, for enforcing any law of the 
 province made in relation to any matter coming witliin any of the classes of 
 Hul.jccts enumeratcfl in tliis section." 16. "Generally all matters of a merely 
 local or private nature in the province." 
 
 'For text of judgment, see L. N. , January 17, 1884 ; 9 App. Cas., 117.
 
 102 LEGISLATIVE JURISDICTION. 
 
 in the plenitude of its power, possessed and could bestow.* 
 Within these limits of subjects and area, " the local legislature 
 is supreme, and has, the same authority as the imperial 
 parliament, or the parliament of Canada would have had 
 under like circumstances to confide to a municipal institution 
 or a body of its own creation, authority to make by-laws or 
 resolutions as to subjects specified in the enactment, and with 
 the view of carrying the enactment into operation and effect." 
 In their opinion such an authority is ancillary to legislation, 
 and without it an attempt to provide for varying details and 
 machinery to carry them out might become oppressive, or 
 absolutely fail. A legislature, in committing certain regula- 
 tions to agents or delegates like license commissioners, retains 
 its powers intact, and can, whenever it pleases, destroy the 
 agency it has created, and set up another, or take the matter 
 directly into its own hands. 
 
 The result of this very important judgment was the passage 
 by the Dominion parliament of an act which referred the 
 question of the constitutionality of the Liquor License Act of 
 1883 to the supreme court of Canada.^ A special case con- 
 taining the following questions was accordingly referred by 
 the governor-general in council to the court : 
 
 "1. Are the following acts in ■whole or in part within the legislative 
 authority of the parliament of Canada, namely : 
 
 (1) "The Liquor License Act, 1883 ? 
 
 (2) " An Act to amend ' The Liquor License Act, 1883 ? ' 
 
 "2. If the court is of opinion that a part or parts only of said acts are 
 within the legislative authority of the parliament of Canada, what part or 
 parts of said acts are so within such legislative authority ? " 
 
 The court^ certified to the governor-general-in-council that, 
 in their opinion, the acts referred to them " are, and each of 
 them is, ultra vires of the legislative authority of the parlia- 
 ment of Canada, except in so far as the said acts respectively 
 
 147 Vict., c. 32, s. 26. 
 
 2 See 48-49 Vict. , c. 74, the schedule of which contains order of reference to, 
 and the judgment of, the supreme court. Mr. Justice Henry was of opinion 
 that ' ' the said acts are ultra vires in whole. "
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 103 
 
 purport to legislate respecting those licenses mentioned in 
 section seven of the said 'The Liquor License Act, 1883/ 
 which are there denominated vessel licenses and wholesale 
 licenses, and except also in so far as the acts respectively 
 relate to the carrying into effect of the provisions of 'The 
 Canada Temperance Act, 1878.'" The immediate result of 
 this decision was the suspension of those parts of the 
 Dominion acts declared to be ultra vires} Subsequently the 
 question came before the privy council, who decided in favour 
 of the right of the provincial legislatures to deal with the 
 subject-matter of licenses for the sale of liquors.^ 
 
 Tlie Prohibition of the Sale of Liquors. 
 
 At a later time cognate questions came up for judicial 
 decision. In 1893 the governor-general of Canada submitted^ 
 to the supreme court of Canada, for hearing and consideration, 
 the following questions, viz. : — 
 
 1. Has a provincial legislature jurisdiction to prohibit the 
 sale within the province of spirituous, fermented or other 
 intoxicating liquors ? 
 
 2. Or has the legislature such iurisdiction resfardinof such 
 portions of the province as to which tiie Canada Temperance 
 Act is not in operation ? 
 
 3. Has a provincial legislature jurisdiction to prohibit the 
 manufacture of such liquors within the province ? 
 
 4. Has a provincial legislature jurisdiction to prohibit the 
 importation of such liquors into the province ? 
 
 5. If a provincial legislature has not jurisdiction to prohibit 
 8ale.s of sucli liquors, irrespective of quantity, has such legis- 
 lature jurisdiction to prohibit the .sale by retail according to 
 the definition of a sale by retail, either in statutes in force 
 in tlie province at the time of confederation, or any other 
 definition thereof ? 
 
 »Dom. Stat. (188.5), 48-49 Vict, c. 74. 
 
 *8L. N., 17, 26, .379, 409. 
 
 •Pursuant to Rev. Stat. c. 13.5, a.s am. by s. 4, c. 25, 54-55 Vict. ; supra, 84.
 
 10-i LEGISLATIVE JURISDICTION. 
 
 6. If a provincial legislature has a limited jurisdiction only 
 as regards the prohibition of sales, has the legislature juris- 
 diction to prohibit sales subject to the limits provided by the 
 several sub-sections of the 99th section of the Canada Tem- 
 perance Act or any of them (Revised Statutes of Canada, 
 chapter 106, section 99) ? 
 
 And 7. Had the Ontario legislature jurisdiction to enact the 
 18th section of the act passed by the legislature of Ontario in 
 the 53rd year of her Majesty's reign, and intituled " An Act 
 to improve the Liquor License Acts," as said section is ex- 
 plained by the act passed by the said legislature in the 54th 
 year of her Majesty's reign and intituled " An Act respecting 
 local option in the matter of liquor selling " ? 
 
 The 18th section of the Ontario Act provided : " The council 
 of every township, city, town and incorporated village may 
 pass by-laws for prohibiting the sale by retail of spirituous, 
 fermented or other manufactured liquors in any tavern, inn or 
 other house or place of public entertainment, and for pro- 
 hibiting altogether the sale thereof in shops and places other 
 than houses of public entertainment. Provided that the by- 
 law before the final passing thereof has been duly approved of 
 by the electors of the municipality in the manner provided by 
 the sections in that behalf of the Municipal Act. Provided 
 further that nothino; in this section contained shall be con- 
 strued into an exercise of jurisdiction by the legislature of the 
 province of Ontario beyond the revival of provisions of law 
 which were in force at the date of the passing of the British 
 North America Act, and which the subsequent legislation of 
 this province purported to repeal." The Ontario Act, 54 Vict., 
 sec. 40, provided that the last mentioned 18th section did not 
 intend to affect the provisions of section 252 of the Consoli- 
 dated Municipal Act of Canada, 29 and 30 Vict., c. 51, which 
 enacted that "no tavern or shop license shall be necessary for 
 selling any liquors in the original packages in which the same 
 have been received from the importer or manufacturer, pro- 
 vided such packages contain respectively not less than five 
 gallons or one dozen bottles, save in so far as the said section
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 105 
 
 252 may have been affected by the 9th sub-section of 249 of 
 the same act, and save in so far as licenses for sales in such 
 quantities are required by the Liquor License Act ; and the 
 said section 18 and all by-laws which have heretofore been 
 made or shall hereafter be made under the said section 18, 
 and purporting to prohibit the sale by retail of spirituous, 
 fermented or other manufactured liquors, in any tavern, inn 
 or other house or place of public entertainment, and prohibit- 
 ing altogether the sale thereof in shops and places other than 
 houses of public entertainment, are to be construed as not 
 purporting or intended to affect the provisions contained in 
 the said section 252, save as aforesaid, and as if the said 
 section and the said by-laws had expressly so declared." The 
 matter was heard before five judges of the supreme court, and 
 the questions were all answered in the negative by three of 
 the judges, the otlier two judges being of opinion that all 
 should be answered in the affirmative except questions 3 
 and 4.1 
 
 The lords of the judicial committee of the privy council, to 
 whom the questions at issue were finally submitted, gave a 
 general answer to the seventh question in the aflfirmative.^ 
 They were of opinion that the Ontario legislature had juris- 
 diction to enact section 18, but subject to tliis necessary 
 qualification — that its provisions "are or will become inopera- 
 tive in any district of the province which has already adopted, 
 or may subseciuently adopt, the second part of the Canada 
 Temperance Act of 1886." (See supra, p. 94). With respect 
 to the other questions submitted to them their lordships 
 observed that sucli (juestions, being in their nature academic 
 rather than judicial, were better fitted for tlie consideration of 
 the officers of the Crown than of a court of law. The replies 
 to be given to them necessarily depend upon the circumstances 
 in which they may arise for decision, and these circumstances 
 are in tliis ca.se left to speculation. It must, therefore, be 
 understood that the an.swei's which follow ai-e not meant to 
 
 » 24 Can. Sup. C. R., 170. 
 '19 L. N., 185, 199.
 
 106 LEGISLATIVE JURISDICTION. 
 
 have, and cannot have, the weight of a judicial determination 
 except in so far as their lordships might have occasion to 
 refer to the opinions which they had already expressed in 
 discussing the seventh question. 
 
 Answers to questions 1 and 2. Their lordships think it 
 sufficient to refer to the opinion expressed by them in dispos- 
 ing of the seventh question. 
 
 Answer to question 3. In the absence of conflicting legisla- 
 tion by the parliament of Canada, their lordships are of 
 opinion that the provincial legislatures would have jurisdiction 
 to that effect if it were shown that the manufacture was 
 carried on under such circumstances and conditions as to make 
 its prohibition a merely local matter in the province. 
 
 Answer to question 4. Their lordships answer this question 
 in the negative. It appears to them that the exercise by the 
 provincial legislature of such jurisdiction in the wide and 
 general terms in which it is expressed, would probably trench 
 upon the exclusive authority of the Dominion parliament. 
 
 Answers to questions 5 and 6. Their lordships consider it 
 unnecessary to give a categorical reply to either of these 
 questions. Their opinions upon the points which the ques- 
 tions involve have been sufficiently explained in their answer 
 to the seventh question. 
 
 In giving their judgment on the questions arising out of sec- 
 tion 18 of the Ontario liquor license law, their lordships were 
 guided by the following reasons : The Dominion parliament 
 has certain powers of legislation for the peace, order and good 
 government of Canada, over and above its enumerated powers 
 specified in- section 91, but whereas in the case of its latter 
 powers it is free to deal with any of the matters assigned to 
 the provinces in section 92 — all of which are from a provincial 
 point of view, of a local or private nature — wherever such 
 legislation is necessarily incidental to the exercise of its said 
 enumerated powers when legislating under its general power, 
 it may not encroach upon any class of subjects which is exclu- 
 sively assigned to the provincial legislatures by the said section
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 107 
 
 92. If, then, such prohibitory liquor legislation as was that of 
 the Canada Temperance Acts of 1878 and 1886, fell within the 
 enumerated Dominion power for the " regulation of trade and 
 commerce," the Dominion parliament would have the exclu- 
 sive power so to legislate, although in so doing it should inter- 
 fere with the jurisdiction of the provinces. The object of the 
 Canada Temperance Act, 1886, is not to regulate retail trans- 
 actions between those who trade in liquor and their customers, 
 but to abolish all such transactions within every provincial 
 area in which the enactments have been adopted by a majority 
 of the local electors. A power to regulate naturally, if not 
 necessarily, assumes, unless it is enlarged by the context, the 
 conservation of the thing which is to be made the subject of 
 regulation. In that view their lordships are unable to regard 
 the prohibitive enactments of the Canadian statute of 1886 as 
 regulations of trade and commerce. They see no reason to 
 modify the opinion which was recently expressed on their 
 behalf by Lord Davey in Municipal Corporation of the City 
 of Toronto v. Virgo (1896, App. Cas. 93), in these terms : — 
 " Their lordships think thei'e is a marked distinction to be 
 drawn between the prohibition or prevention of a trade and 
 the regulation or governance of it, and indeed, a power to 
 regulate and govern seems to imply the continued existence of 
 that which is to be regulated or governed." 
 
 As held in Russell v. The Queen, it is under its general 
 residuary power of legislation tliat the Dominion parliament 
 can so legislate. But this being so, such power of legislation 
 does not detract from any provincial power there may be under 
 section 92 to pass a restrictive licjuor law. Sucli a power there 
 is, for " a law whicli pi-oliibits retail transaction and restricts 
 tlie consumption of licpior within tlie amljit of the province, 
 and does not affect transactions in liquor between persons in 
 the province and persons in other provinces or foreign coun- 
 tries, concerns property in the province which would be the 
 subject-matter of the transactions, if they were not proliibitory, 
 and also the civil rights of persons in the province," and such 
 legislation probably falls within No. 13 of section 92, " property
 
 108 LEGISLATIVE JURISDICTION. 
 
 and civil rights in the province " ; but if not it would certainly- 
 come within No. 16 of section 92, " matters of a merely local 
 or private nature in the province." Such an enactment was 
 section 18 of the Ontario liquor license law, 53 Vict., cap. 
 56. But as is now settled law, the enactments of the Domin- 
 ion parliament, in so far as they are within its competency, 
 override provincial legislation, and therefore if, and in so far 
 as the said provincial liquor license law comes into collision 
 w^ith the provisions of the Canada Temperance Act, it must 
 yield to the Dominion act and remain in abeyance until such 
 Dominion act is repealed. Now the provisions of these two 
 pieces of legislation do so conflict that it is obvious that their 
 provisions could not be enforced within the same district or 
 province at one and the same time ; and therefore if the 
 prohibitions of the Canada Temperance Act had been made 
 imperative throughout the Dominion, it might have been 
 necessary to hold that the jurisdiction of the Ontario legisla- 
 ture to pass the act above referred to had been superseded. 
 But by reason of the system of local option embodied in the 
 Canada Temperance Act, this necessity is removed as to districts 
 which have not adopted the Canada Temperance Act, for " The 
 parliament of Canada has not either expressly or by implica- 
 tion enacted that so long as any district delays or refuses to 
 accept the prohibitions which it has authorized, the provincial 
 parliament is to be debarred from exercising the legislative 
 authority given it by section 92 for the suppression of the 
 drink traffic as a local evil. Any such legislation would be 
 unexampled, and it is a great question whether it would be 
 lawful." Even if the provisions of section 18 had been impera- 
 tive they could not have taken away or impaired the right of 
 any district in Ontario to adopt and thereby bring into force 
 the prohibitions of the Canadian Act.^ 
 
 ^ See able article in Can. L. T. (June, 1896), by Mr. Lefroy. The impossi- 
 bility of enforcing the Canada Temperance Act has led to an agitation for the 
 passage of prohibitory liquor legislation. The legislature of Ontario in 1893 
 passed an act (56 Vict., c. 35) to obtain an expression of public opinion with 
 respect to the liquor traffic, and the result was a large majority in favour of 
 prohibition. Both Prince Edward Island and Nova Scotia also gave conclusive
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 109 
 
 Fisheries, Harbours and Navigable Waters. 
 
 By sec. 2 of the Fisheries Act of 1868/ the minister of 
 marine and fisheries "may, where the exclusive right of fishing 
 does not akeady exist by law, issue, or authorize to be issued, 
 fishery leases and licenses for fisheries and fishing wheresoever 
 situated, or carried on," etc. In 1874 the minister executed a 
 lease of fishery of a certain portion of a river in New Bruns- 
 wick which was some forty or fifty miles above the ebb and 
 flow of the tide, though the stream for the greater part of that 
 particular portion is navigable for canoes, small boats and 
 timber. Certain persons in New Brunswick, however, claimed 
 the exclusive right of fishing in this part of the river, on the 
 ground that they had received conveyances thereof, and pre- 
 vented the lessee of the Dominion government from enjoying 
 the fishery under his lease. The supreme court of Canada 
 was at last called upon to decide whether an exclusive right 
 of fishing existed in the parties who had received the convey- 
 ances. In other words, the court was practically asked to 
 decide the question : Can the Dominion parliament authorize 
 the minister of marine and fisheries to issue licenses to parties 
 
 majorities in the same way. (For majorities see "Short History" in Johnson's 
 •'Statistical Year Book of Canada.") In 1898 the Canadian parliament also 
 submitted the question (under 61 Vict., c. r)l) to the electors of the provinces, 
 and the result was a majority of only 14,000 votes in favour of prohibition out 
 of a total vote of 54.3,049, polled throughout the Dominion. The province of 
 Quebec declared itself against the measure by an overwhelming vote. The 
 prime minister stated to the House of Commons in March, 1899, "that tho 
 voice of the electorate, which has been pronounced in favour of prohibition — 
 only twenty-three per cent of the total electoral vote of the Dominion — is not 
 such as to justify the government in introducing a prohibitory law." In tlie 
 premier's opinion the governnient would not be justilied in following such a 
 course "unless at least one-half of the electorate declared itself at the polls in 
 its favour." (Com. Hans. 1899, i. 9.j). In the province of Manitoba, where tho 
 pco{)lc have pronounced themselves conclusively in favour of prohibition, tho 
 legislature has also quite recently passed an act (Man. Stat, for 1900, c. 22), 
 which has been declared ultra vires by the court of king's bench unanimously, 
 and is now (May, 1901,) before the privy council. In fact, despite the various 
 juilicial decisions respecting the manufacture, sale and regulation of the liquor 
 traffic, the exact legal rights of the Dominion and tho provinces are still 
 involved in much obscurity. 
 '31 Vict , c. f)0.
 
 110 LEGISLATIVE JURISDICTION. 
 
 to fish in rivers such as that described, where the provincial 
 government has before or after* confederation granted lands 
 that are bounded on, or that extend across such rivers ? 
 The court decided : That the license granted by the minister 
 of marine and fisheries was void, because the act in question 
 only authorizes the granting of leases "where the exclusive 
 right of fishing does not already exist by law," and in this 
 case the exclusive right belonged to the owners of the land 
 through which that portion of the river flows. That the 
 leofislation in rec^ard to " inland and sea fisheries " contem- 
 plated by the B. N. A. Act is not with reference to property and 
 civil rights — tliat is to say, not as to the ownership of the beds 
 of rivers or of the fisheries, or the rights of individuals therein, 
 but to subjects affecting the fisheries generally, tending to 
 their regulation, protection and preservation, matters of a 
 national and general concern ; in other words, all such general 
 laws as enure as well as to the benefit of the owners of the 
 fisheries as to the public at large. That the parliament of the 
 Dominion may properly exercise a general power for the pro- 
 tection and regulation of the fisheries, and may authorize the 
 granting of licenses, where the property, and therefore the 
 right of fishing thereupon, belong to the Dominion, or where 
 such rights do not already exist by law; but it may not 
 interfere with existing exclusive rights of fishing, whether 
 provincial or private. That consequently any lease granted 
 by a Dominion minister to fish in freshwater non-tidal rivers, 
 which are not the property of the Dominion, or in which the 
 soil is not in the Dominion, is illegal; that where the exclusive 
 right to fish has been acquired as incident to a grant of land 
 through which such river flows, the Canadian parliament has 
 no power to grant a right to fish. That the ungranted lands 
 in a province being in the Crown for the benefit of the people, 
 the exclusive right to fish follows as an incident, and is in the 
 Crown as trustee for the benefit of the people of the province, 
 and therefore a license by the minister of marine and fisheries 
 would be illecral.^ 
 
 ^Can, Sup. C. R., vi. 52 (Queen v. Robertson).
 
 DECISIONS ON QUESTIONS OF JURISDICTION. Ill 
 
 But this decision did not by any means settle the various 
 perplexing questions of jurisdiction with respect to fisheries. 
 In 1898 the supreme court of Canada was again called upon 
 to answer certain questions submitted to them by the gover- 
 nor-general-in-council with respect to the jurisdiction of the 
 Dominion parliament to authorize the giving by lease, license, 
 or otherwise, of the right of fishing in navigable or non- 
 navigable lakes, rivers, streams or waters, the beds of which 
 had been granted to private proprietors before confederation, 
 or not having been so granted, are assigned to the provinces 
 under the British North America Act of 1867. As in the case 
 above mentioned, the court held that the legislative authority 
 of the Dominion parliament under section 91, sub-section 12, 
 of the act, is limited to tlie regulation and conservation of sea 
 coast and inland fisheries, under which it may require that no 
 person shall fish in public waters without a license from the 
 department of marine and fisheries, may impose fees for such 
 license and prohibit all fishing without it, and may prohibit 
 particular classes, such as foreigners, unconditionally from 
 fishing. The license as required, pursuant to Dom. Rev. 
 Stat., c 135, as amended by 55-55 Vict., c. 25, ss. 1, 4, will, 
 however, be merely conferring personal qualification, and will 
 give no exclusive right to fish in a particular locality.^ But 
 the court reaffirmed their decision in a previous case,'- that 
 the beds of all harbours are the property of the Dominion, 
 
 "Can. Sup., C. R., vol. 26, pp. 444-578. 
 
 ''Holman v. Green, lb., vol. 6, p. 707. In" this case the court decided that 
 when a grant of part of the foreshore of a natural liarhour, used as such by 
 the public, was made by the provincial government of I'rineo Edward Island, 
 Hulisequent to the admission of that province into the union, the grant was 
 held to be invalid. In 1898, when the judicial committee gave answers to 
 certain questions with respect to the fislicries, on appeal from the ."supreme 
 court of Canada (App. Ca8.,p. 712), tlieir lordships were " of opinion tiiat it 
 does not follow that because the foreslmie on thi' margin of a hai Ixmr is Crown 
 property, it necessarily forms part of a liai hour. It may or may not do so 
 according to circumstances. If, for example, it had actually been used for 
 harV)our purposes, Buch as anchoring ships or landing goods, it would, no 
 doubt, form part of the harbour, but there are other cases in which, in their 
 lordsliips' opinion, it would bo equally clear that it did not form part of it."
 
 112 LEGISLATIVE JURISDICTION. 
 
 and that as such proprietor the Dominion became the owner 
 of the soil and of the fisheries therein. " The same rule," said 
 Girouard, J., " should be applied to canals, lighthouses, piers. 
 Sable Island ordnance property, lands set apart for general 
 public purposes, and other public works enumerated in the 
 third schedule of the act, and also all lands or public property 
 assumed by the Dominion for fortifications or for the defence 
 of the country under section 117." 
 
 The questions at issue between the Dominion and the 
 provinces with respect to harbours and inland fisheries were 
 finally^ brought before the judicial committee, who decided 
 as follows : 
 
 " That whatever proprietary rights were vested in the pro- 
 vinces at the date of the British North America Act, 1867, 
 remained so unless transferred by its express enactments, to 
 the Dominion. Such transfer is not to be presumed from the 
 grant of legislative jurisdiction to the Dominion in respect of 
 the subject-matter of those proprietary rights." 
 
 That the transfer by section 108,^ the third clause of the 
 schedule of the act of the Dominion of " Rivers and Lakes 
 Improvements," operates on its true construction in regard to 
 the improvements only both of rivers and lakes, and not in 
 regard to the entire rivers. Such construction, in their lord- 
 ships' opinion, does no violence to the language employed, and 
 is reasonably and probably in accordance with the intention of 
 the legislature. 
 
 That the transfer of " public harbours " operates on what- 
 ever is property comprised in that term, having regard to the 
 circumstances of each case, and is not limited merely to those 
 portions on which public works had been erected. 
 
 With regard to fisheries and fishing rights their lordships 
 held :— 
 
 'L. R. App. Cas., 1898, pp., 700, et seq. 
 
 ^108. " The public works and property of each province enumerated in the 
 third schedule of this act shall be the property of Canada." See App. to this 
 book for schedule 3, given incorrectly " schedule 5," in L. R. App. Cas., p. 700.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 113 
 
 That section 91 did not convey to the Dominion any- 
 proprietary rights therein, although the legislative jurisdiction 
 confen'ed by the section enables it to affect those rights to an 
 unlimited extent, short of transferring them to others. 
 
 That a tax by way of license as a condition of the right to 
 fish is within the powers conferred by sub-ss. 3 and 12.^ 
 
 That the same power is conferred on the provincial legisla- 
 ture by s. 92. 
 
 That Revised Statutes of Canada, c. 95, s. 4,^ so far as it 
 empowers the grant of exclusive fishing rights over provincial 
 property, is ultra vires of the Dominion. 
 
 That Revised Statutes of Ontario, c. 24, s. 47,^ is intra vires 
 the province, except in so far as it relates to land in the 
 harbours and canals, if any of the latter be included in the 
 words " other navigable waters of Ontario." 
 
 That as regards Ontario Act (1892),^ the regulations therein 
 which control the manner of fishing are ultra vires. Fishing 
 regulations and restrictions are within the exclusive compe- 
 tence of the Dominion, inasmuch as the exclusive legislative 
 authority "of the parliament of Canada extends to sea-coast 
 and inland fisheries" under sub-s. 12, s. 91. But while in 
 their lordships' opinion all restrictions or limitations by which 
 
 ' Sub-8. 3, "The raising of money by a.i\y mode or system of taxation." 
 (Incorrectly given as sub-s. 4 in Law Reports, App. Cas., pp. 701-713). Sub-s. 
 12, " Sea-coast and Inland Fisheries." 
 
 * "The minister of marine and fisheries may, wherever the exclusive right of 
 fi.shing does not already exist by law, issue or authorize to be issued fishery 
 leases and licenses for fisheries and fishing wheresoever situated or carried on ; 
 V)ut leases and licenses for any term exceeding nine 5ears shall be issued only 
 under authority of tlie governor-in-council." See 31 Vict., c. 60, s. 2. 
 
 ' "It has been heretofore and it shall hereafter be lawful for the lieutcnant- 
 govemor-in-council to authorize sales or appropriations of land covered with 
 water in the harbours, rivers f)r other navi>,'able waters in Ontario, under such 
 conditions as it has been or may l)e deemed retjuisite to imjxwe, but not so as 
 to interfere witli the use of any harbour as a harbour, or with the navigation 
 of any harbour, river or other navigable water." See R. S. O. (1897), e. 28, 
 s. 49. 
 
 *5o Vict.,c. 10, "An Act for the protection of Provincial Fisheries." See 
 now R. S. 0. (1897), c. 288. 
 8
 
 114 LEGISLATIVE JURISDICTION. 
 
 public rights of fishing are souglit to be limited or controlled 
 can be the subject of Dominion legislation only, the provincial 
 legislatures are competent to prescribe the mode in which a 
 private fishery is to be conveyed or otherwise disposed of, as 
 falling under the heading of "property and civil rights," 
 within s. 92. So, too, the terms and conditions upon which 
 the fisheries, which are the property of the province, may be 
 granted, leased or otherwise disposed of, and the rights which, 
 consistently with any general regulations respecting fisheries 
 enacted by the Dominion parliament, may be conferred there- 
 in, appear proper subjects for provincial legislation, either 
 under class 5 of s. 92, " the management and sale of public 
 lands," or under the class " property and civil rights." Such 
 legislation deals directly with property, its disposal, and the 
 rights to be enjoyed in respect to it, and was not intended to 
 be within the scope of the class "fisheries" as that word is 
 used in s. 91.^ In conclusion, their lordships ruled that they 
 entertain no doubt that the Dominion parliament had power 
 to pass the act intituled "An act respecting certain works 
 constructed in or over navigable waters," inasmuch as it is, in 
 their opinion, clearly legislation relating to navigation.- As a 
 result of this decision the governments of Ontario and Quebec, 
 where the inland fisheries are very valuable, have issued 
 licenses, but in other provinces the Dominion authorities 
 continue to administer all fisheries.^ 
 
 ^ Incorrecth^ given as s. 92 in L. R. App. Cas., p. 716. 
 
 2 See Dom. Rev. Stat., c. 92. Also sub-s. 10, s. 91, B. N. A. Act, 1867. 
 
 ^ In 1899, the minister of marine and fisheries stated in repl}^ to a question 
 put him in the House of Commons with respect to the practical result of the 
 decision reviewed above : "Speaking broadl}', it might be taken for granted 
 that while the Dominion government has the exclusive right of making 
 regulations so far as the inland fisheries are concerned, they have no power to 
 issue licenses whatever. Ontario is giving licenses entirely within the boun- 
 daries of that province. The province of Quebec is doing the same. With 
 Nova Scotia and New Brunswick an arrangement has been made under which, 
 pending submission of a case to the court to determine the relative powers of 
 the pro\'inces and the Dominion in the waters adjacent to the sea coast — that 
 is, below water mark — we should continue to administer the fisheries this ^■ear 
 in those two provinces as we did last." See Com. Hans, for 1899, vol. i., 
 pp. 2910-11.
 
 LECISIOIfS ON QUESTIONS OF JURISDICTION. 115 
 
 Escheats. 
 
 Among the matters that have come before the supreme court 
 of Canada and the judicial committee of the privy council, is 
 the question whether the government of Canada or the gov- 
 ernment of a province is entitled to estates escheated to the 
 Crown for want of heirs. The controversy on this question 
 first arose in 1874, when the legislature of Ontario passed an 
 act^ to amend the law respecting escheats and forfeitures. 
 This act was disallowed by the governor-general-in-council, 
 on the report- of the minister of justice (Mr. Fournier, later 
 one of the judges of the supreme court) on the following 
 cjrounds : 
 
 1. "That escheat is a matter of prerogative which is not by the British 
 North America Act vested in a provincial government or legislature. 
 
 2. "That it is not one of the subjects coming within the enumeration 
 of the subjects left exchisively to the provincial legislatures. 
 
 3. " That a provincial legislature, by its very statutable position, has 
 no power to deal with prerogatives of the Crown. 
 
 4. " That the lieutenant-governor has not under the statute, or by his 
 commission, any power to deal with the prerogatives of the Crown ; and 
 not Ijeing empowered to assent in the Queen's name to any law of a pro- 
 vincial legislature, he cannot Ijind her Majesty's prerogative rights." 
 
 Subsequently in 1876, by a decision of the court of queen's 
 bench of the province of Quebec, upon an appeal from a lower 
 court, the right of the province to the control of escheats and 
 forfeitures, within the province, was affirmed. Whereupon it 
 was agreed between the Dominion and provincial govenmients 
 tliat — until or unless there should be a judicial decision estab- 
 lishing a contrary principle — "lands and personal property in 
 any province, escheated or forfeited by reason of intestacy, 
 without lawful heirs or next of kin, or otlier parties entitled 
 to succeed, are subjects appertaining to the province, and 
 within its legislative competency," while, on the other hand, 
 "lands and personal property forfeited to the Crown for 
 
 1 37 Vict., (•. 8. 
 
 2 Can. Sess. P., 1882, No. 141.
 
 116 LEGISLA TIVE J URISDIGTION. 
 
 treason, felony, or the like, are subjects appertaining to the 
 Dominion, and within its legislative competence."^ 
 
 Accordingly the legislature of Ontario again passed an act,^ 
 which enables the attorney-general to take possession of 
 escheated lands or cause an action of ejectment to be brought 
 for the recovery thereof, without any inquisition being first 
 necessary. The lieutenant-governor may make grants of 
 escheated or forfeited lands, or may release forfeited property, 
 or waive the forfeiture. He may also make an assignment of 
 personalty to which the Crown has become entitled. 
 
 The question of the validity of this statute was brought 
 before the courts in 1878, when the attorney-general of 
 Ontario filed an information in the court of chancery for the 
 purpose of obtaining possession of land in the city of Toronto, 
 which was the property of one Andrew Mercer, who had died 
 intestate and without leaving any heirs or next of kin, on the 
 ground that it had escheated to the Crown for the benefit of 
 the province. Andrew F. Mercer, a natural son of the de- 
 ceased, demurred to this information for want of equity, and 
 the court of chancery held that the Escheat Act of Ontario^ 
 was not ultra vires, but that the escheated jDroperty accrued 
 to the benefit of Ontario. On appeal to the court of appeal 
 for Ontario, that court held that the provincial governments 
 are entitled, under the B. N. A. Act, to recover and appro- 
 priate escheats, and affirmed the order over-ruling the said 
 demurrer, and dismissed the appeal with costs. Against this 
 judgment the defendant, Andrew F. Mercer, appealed to the 
 supreme court, and the parties agreed that the appeal should 
 be limited to the broad question whether the government of 
 Canada or of a province is entitled to estates escheated to the 
 Crown. The Dominion government, concurring in the view 
 
 iCan. Sess. P., 1877, No. 89, pp. 88-105. 
 
 2R. S. 0. (1877), c. 94 (40 Vict., c. 3). The legislature of New Brunswck 
 passed a law to the same eiFect in 1877, c. 9. See also Quebec Act, 48 Vict., 
 c. 10 (Rev. Stat, of 1888, ss. 1369-1373), passed after the privy council's 
 decision stated in the text. Also Nova Scotia Rev. Stat., 5th series, c. 127. 
 
 3 R. S. 0. (1877), c. 94.
 
 Di:CISIOXS ON QUESTIONS OF JURISDICTION. 117 
 
 of the appellant's counsel, that the hereditary revenues of the 
 Crown belong to the Dominion, intervened in order to have 
 the question determined. 
 
 The supreme court held that the province of Ontario does 
 not represent her Majesty in matters of escheat in that 
 province, and therefore the attorney-general could not appro- 
 priate the property escheated to the Crown in this case for 
 the purposes of the province, and that the Escheat Act of 
 Ontario was ultra vires} That any revenue derived from 
 escheats is by section 102 of the B. N. A. Act placed under the 
 control of the parliament of Canada, as part of the consoli- 
 dated revenue fund of Canada, and no other part of the act 
 exempts it from that disposition.^ 
 
 The case was brought finally before the privy council,'' who 
 
 came to the conclusion that the escheat in question belongs to 
 
 the province of Ontario. Their lordships base their decision 
 
 mainly on their interpretation of section 109, which is the 
 
 only clause in the B. N. A. Act by which any sources of 
 
 revenue appear to be distinctly reserved to the provinces, viz : 
 
 "All lands, mines, minerals and royalties belonging to the several 
 provinces of Canada, NoVa Scotia and New Brunswick, at the union, and 
 all sums then due or payable for such lands, mines, minerals, or royalties, 
 shall belong to the several provinces of Ontario, Quebec, Nova Scotia and 
 New Brunswick, in which the same are situate or arise, subject to any 
 trusts e.xisting in respect thereof, and to any interest other than that of 
 the province in the same." 
 
 The real question, in their lordships' opinion, is as to the 
 effect of the words "lands, mines, minerals and royalties" 
 taken togetlier. They see no reason why tiie word "royalties" 
 in the .cont«?xt should not have its primary and appropriate 
 sen.se as to all the suhtjects with which it is here a.ssociated — 
 lands, as well as mines and minerals. Even as to mines and 
 minerals, it here necessarily signifies rights belonging to the 
 Crown, jure coronru. Tlic general subject of the section is of 
 
 ' Can. Sup. C. R. v., .'i.SS. The cliief justice and another judge of the court 
 dissented from tliu opinion of tlio majority. 
 
 'Per Foumicr, Taschcrcau and Cwynne, J. J. 
 
 *The attorney-general of Ontario v. Mercer ; July 18, 1883.
 
 118 LEGISLATIVE JURISDICTION. 
 
 a high political nature; it is the attribution of royal territorial 
 rights, for the purposes of revenue and government, to the 
 provinces in which they are situate or arise. In its primary 
 and natural sense, " royalties " is merely the English transla- 
 tion or equivalent of regalitates, jura regalia, jura regia. It 
 stands on the same footing as the right to escheats, to the 
 land between high and low watennark, to treasure trove and 
 other analogous rights. Their lordships find nothing in the 
 subject or the context, or in any other part of the act, to 
 justify a restriction of its sense to the exclusion of royalties, 
 such as escheats in respect of lands. The larger interpreta- 
 tion, in their opinion, certainly includes all other ordinary 
 territorial revenues of the Crown arising within the respective 
 provinces.^ 
 
 Precious Metals' Case. 
 
 An analogous question came before the judicial committee in 
 1889, in connection with the above-mentioned case.^ Here their 
 lordships held : — That British Columbia, having agreed by the 
 11th article of union, to convey, and having accordingly granted 
 by statute to the Dominion parliament, certain "public lands" 
 in trust to be appropriated in furtherance of the construction 
 of the Canadian Pacific Railway — this not being matter of a 
 separate and independent compact, but part of the general sta- 
 tutory arrangement, of which the leading enactment was that 
 on its admission to the federal union, British Columbia should 
 retain all the rights and interests assigned to it by the pro- 
 visions of the British North America Act, 1867, which govern 
 the distribution of provincial property and revenue between 
 the province and the Dominion, the 11th article of union being 
 nothing more than an exception from these provisions, though 
 the expression " land " admittedly carried with it the baser 
 metals, they being incidents of lands — it should be interpreted 
 under the circumstances as derogating from the provincial 
 right to " royalties " connected with mines and minerals, e.g., 
 
 1 6 L. N. 233, 244. Also Can. Sess. P., 1884. 
 214 App. Cas. 295 ; Cart. (1889), iv., 241.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 119 
 
 mines of gold and other precious metals. Therefore the}' held 
 tliat the precious metals within the lands in question remained 
 vested in the Crown, subject to the control and disposal of the 
 government of British Columbia. • 
 
 Question respecting Indian Lands. 
 
 An important question came before the supreme court of 
 Canada in 1887, on the appeal of the Ontario court of appeal, 
 affirming a judgment of the chancery division, which restrained 
 the St. Catharines Milling & Lumber Co. from cutting timber 
 on lands south of Wabigoon Lake in Algoma, claimed to be 
 public lands of the province.^ The question was really whether 
 certain lands admittedly within the boundaries of Ontario 
 belonged to that province or to the Dominion of Canada. By 
 royal proclamation in 1763," possession was granted to certain 
 Indian tribes of these lands, " of such parts of our dominion 
 and territories," as not having been ceded or purchased by the 
 Crown, were reserved, " for the present," to them as their 
 liunting grounds. The proclamation further enacted that all 
 purcliases from the Indians of lands reserved to them must 
 be made on behalf of the Crown by the governor of the colony 
 in which the lands lie, and not by any private person. In 
 1873 the lands in suit, situate in Ontario, which had been in 
 Indian occupation until the date under the foregoing pro- 
 clamation, were, to the extent of the w^hole right and title of 
 the Indian inliabitants thereto, surrendered to the government 
 of the Dominion for the Crown, subject to a certain qualified 
 privilege of hunting and fishing.^ In the answer of the 
 defendants it was pleaded that tiie lands and timber thereon 
 were, with other lands and timber in the district, until quite 
 
 'Sup. Can. R., vol. l.S, pp. 577-f)77. I'll'- >St. Catliarincs Milliiij^ & Lumber 
 Co. (appoUarits), aii<l tin; Queen, on Uki infonnatioii of tlie attoi'ney-gfiieral 
 for the pnjvincc of Ontario (respondent), on appeal from the eourt of appeal 
 for Ontario. 
 
 ^Siiprd, 8. 
 
 *Tli(He lands formed a portion of the territory declared under the Boundary 
 Awaid to he in Ontario, su/>r<t, 77.
 
 120 LEGISLATIVE JURISDICTION. 
 
 recently claimed by the Indians who inhabited that part of 
 the Dominion of Canada. That the claims of such Indians 
 have always been acknowledged by the various governments 
 of Canada, and that such claims are, as respects the lands in 
 question, paramount to the claim of the Crown as represented 
 by the government of Ontario. That the government of 
 Canada have acquired the Indian title to these lands in con- 
 sideration of a large expenditure of money for the benefit of 
 these Indians, and have for that reason and by virtue of the 
 inherent right of the Crown as represented by the government 
 of Canada, alone the right to grant licenses to cut timber on 
 the tract in dispute. For the province of Ontario it was 
 contended that both before and after the treaty of 1873 the 
 title to the lands in suit was in the Crown and not in the 
 Indians. The lands being within the province, the beneficial 
 interest therein passed to the province under the act of 1867, 
 and the Dominion obtained thereunder no such interest as it 
 claimed in the suit. Even if they were lands reserved for the 
 Indians within the meaning of the act, the Dominion gained 
 thereunder only a power of legislating in respect to them; 
 it did not gain ownership or a right to become owner by pur- 
 chase from the Indians. The majority of the court ^ decided 
 that the boundary of the territory in the northwest angle 
 being established, and the lands in question being found 
 within the province of Ontario, they necessarily form part 
 of the public domain of that section, and are public lands 
 belonging to the same by virtue of sub-sec. 5 of sec. 92, 
 and sec. 109 of the B. N. A. Act, as to lands, mines, minerals 
 and royalties, and of sec. 117, by which the provinces are 
 to retain all their property not otherwise disposed of by 
 that act, subject to the right of the Dominion to assume any 
 lands or public property required for fortifications or for the 
 
 ^Ritchie, C. J., Taschereau and Henry, J.J. ; Strong and Gwynne, J. J., 
 dissenting. The most elaborate opinion on the whole question is by Boyd, C, 
 in the chancery division in the high court of justice for Ontario (10 O.R., 196). 
 The opinions of Strong and Gwynne, J. J., on the other side merit a careful 
 study.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 121 
 
 defence of the country.^ Only those lands specifically set 
 apart and reserved for the use of the Indians are " lands 
 reserved for Indians" within the meaning of sec. 91, item 24, of 
 the B. X. A. Act. In the course of their opinions, the majority of 
 the judges dwelt on certain points interesting .to the historical 
 as well as to the legal student. They laid it down that " on 
 the discovery of the American continent, the principle was 
 asserted or acknowledged by all European nations that dis- 
 covery followed by active possession gave title to the soil to 
 the government by whose subjects, or by whose authority, it 
 was made, not only against other European governments, but 
 aorainst the natives themselves. While the different nations 
 of Europe respected the rights- of the natives as occupants, 
 they all asserted the ultimate dominion and title to the soil to 
 be in themselves." ^ That such was the case with the French 
 government in Canada, during its occupancy thereof, is an 
 incontrovertible fact. The king was vested with the owner- 
 ship of all the ungranted lands in the colony as part of the 
 Crown domain, and a royal grant conveyed the full estate and 
 entitled the grantee to possession.* When, by the treaty 
 of 1763, France ceded to Great Britain all her rights of 
 sovereignty, property and possession over Canada, it is 
 unquestionable that the full title of the territory ceded 
 became vested in the new sovereign, and that he thereafter 
 owned it in allodium as part of the Crown domain, in as full 
 and ample a manner as the king of France had previously 
 owned it. At no time had the sovereign of Great Britain 
 ever divested himself of tlie ownersliip of tlie public lands to 
 vest it in the Indians. For obvious political reasons and 
 motives of Immanity and benevolence, it has, no doubt, been 
 the general poHcy of the Crown, as it li.id Ixcn at tlie times 
 of the French authorities, to respect the claims of the Indians. 
 
 ^ See app. A to this work for text of these sections. 
 
 ^. Judge Taschereau (643) very properly thought " claiins" Iho jiioper word 
 here. 
 
 'Sup. Court of Louisiana (cited by Taachereau, .T.), 4, La. An. 14L 
 ••Taschereau, J., 644.
 
 122 LEGISLATIVE JUIUSDICTION. 
 
 But this, though it unquestionably gives them a title to the 
 favourable consideration of the government, does not give 
 them any title in law — any title that a court of justice can 
 recognize as against the Crown.^ 
 
 The privy council, in affirming the judgment of the supreme 
 court of Canada, held tliat by force of the proclamation of 
 1763 the tenure of the Indians was a personal and usufruc- 
 tuary right dependent upon the good will of the Crown ; that 
 the lands were, thereby, and at the time of the union, vested 
 in the Crown, subject to the Indian title, which was "an 
 interest other than that of the province in the same," within 
 the meaning of section 109. Their lordships also held that by 
 force of the surrender in 1873 the entire beneficial interest in 
 the lands subject to the privilege was transmitted to the 
 province in terms of section 109 ; and that the Dominion 
 power of legislation over lands reserved for the Indians is not 
 inconsistent with the beneficial interest of the province 
 therein. The treaty of 1873 " left the Indians no right what- 
 ever to the timber growing upon the lands which they gave 
 up, wdiich is now fully invested in the Crown, all revenues 
 derivable from the sale of such portions of it as are situate 
 within the boundaries of Ontario being the property of that 
 province." 
 
 Indian Claims' Case. 
 
 It is useful to constitutional students to notice here that in 
 the Indian claims' ^ case, which involved the interpretation of 
 the words of section 109 (see supra, p. 117), "subject to any 
 trusts existing in respect thereof and to any interest other 
 than that of the province " in the same, their lordships held : 
 
 1 Taschereau, J., 648, 649. See also opinion of Henry, J., 639. 
 
 'App. Cas. (1896); Lefroy, 612-614. In the course of the argument Lord 
 Watson expressed the opinion : "If the Crown right was subject to a burden 
 upon the land, the interest is to pass to the province under that burden. 
 There was to be no change in the jjosition of the Crown. I think the whole 
 effect of this clause (109) is to appropriate to the province of Ontario all the 
 interest in lands within that province as vested in the Crown, subject to all 
 the conditions under which they were vested in the Crown." lb. 612 n.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 123 
 
 " The expressions, ' subject to any trusts in respect thereof ' and 
 ' subject to any interest other than that of the province,' 
 appear to their lordships to be intended to refer to different 
 classes of riglit. Their lordships are not prepared to hold 
 that the woi'd ' trust ' was meant by the legislature to be 
 strictly limited to such proper trusts as a court of equity 
 would undertake to administer ; but, in their opinion, must at 
 least have been intended to signify the existence of a con- 
 tractual or legal duty, incumbent upon the holder of the 
 beneficial estate or its proceeds, to make pa3^ment out of one 
 or other of these of the debt due to the creditors to whom 
 that duty ought to be fulfilled. On the other hand, ' an 
 interest other than that of the province in the same,' appears 
 to them to denote some right or interest in a third party, 
 independent and capable of being vindicated in competition 
 with the beneficial interest of tlie whole province. Their 
 lordships have been unable to discover any reasonable grounds 
 for holding that by the terms of the treaties any indej^endent 
 interest of that kind was conferred upon the Indian com- 
 munities , . . Their lordships have had no diflSculty in 
 coming to the conclusion that under the treaties the Indians 
 obtained no right to their annuities, whether orif^^inal or 
 augmented, beyond a promise and agreement, which was 
 nothing more than a personal obligation by its governor, as 
 representing the old province, that the latter should pay the 
 anmiities as and when they became due ; that the Indians 
 obtained no riglit which gave them any interest in the terri- 
 tory wliich they surrendered other than that of the province, 
 and that no duty was imposed upon the province, wlicther in 
 the nature of a trust, obligation or otherwise, to apply the 
 revenue derived from the surrendered land.s in payment of the 
 annuities.^ 
 
 ' 14 App. Ca.s. v., 4G-61. iSccirig that the benefit of the KUiTeiiiler accrues to 
 Ontario, their lonlHliipa gave their opiiiioii tliat tiiat province must, "of 
 course, relieve tlie Crown, and tlio Dominion, of all oliligalions involving the 
 payment of money wliich were undertaken l>y her MajcHty, and wliicli are 
 said to have been in jmrt fulfilled by the Dominion government."
 
 124 LEGISLATIVE JURISDICTION. 
 
 Taxes on Incorporated Companies. 
 
 In 1882 the Quebec legislature passed a statute^ "to impose 
 certain direct taxes " on banks, insurance companies, and 
 every incorporated company carrying on any labour, trade or 
 business in the province. Payment was resisted of the taxes 
 thereby imposed, and the queen's bench reversed a decision of 
 the superior court that the Quebec legislature had no power 
 to pass -the statute, on the grounds that the tax is a direct 
 one and that it is also a matter of a local or private nature in 
 the province, and so falls within the jurisdiction of the pro- 
 vincial legislature. The case was carried before the judicial 
 committee of the privy council, who affirmed the judgment of 
 the queen's bench that the tax in question was direct taxation 
 within class two of section ninety-two of the federation act. 
 They also laid it down that a corporation doing business in 
 the province is subject to taxation under section 92, ss. 2, 
 thouo-h all the shareholders are domiciled or resident out of 
 the province. 
 
 In giving their opinion in answer to an argument that a 
 legislature might lay taxes so heavy as to crush a bank and 
 nullify the power of parliament to establish such institutions, 
 their lordships said : " People who are trusted with the great 
 power of making laws for property and civil rights may well 
 be trusted to levy taxes ; they have to construe the express 
 words of an act of parliament which makes an elaborate dis- 
 tribution of tlie whole field of legislative authority between 
 two legislative bodies, and at the same time provide for the 
 * federated provinces a carefully balanced constitution, under 
 which no one of the parts can make laws for itself, except under 
 the control of the whole acting through the governor-general. 
 And the question they have to answer is whether the one 
 body or the other has power to make a given law. If they 
 find that on the due consideration of the act a legislative 
 power falls within section 92, it would be quite wrong of 
 them to deny its existence because by some possibility it may 
 
 MSVict. (Q.), c. 22.
 
 DECISIOXS ON QUESTIONS OF JURISDICTION. 125 
 
 be abused or may limit the range which otherwise would be 
 open to the Dominion parliament."^ 
 
 Education. 
 
 Among the difficult questions that have been discussed in 
 parliament and argued before the courts are those arising out 
 of the provisions in the British North America Act relating 
 to education.- This act allows the legislature of each pro- 
 vince to make laws exclusively in relation to education, but at 
 the same time protects denominational or dissentient schools 
 by giving authority to the Dominion government to disallow 
 an act clearly infringing the rights or privileges of a religious 
 minority, or to obtain remedial legislation from parliament, 
 according to the circumstances of the case. From 1871 until 
 1875 the Dominion government was pressed by the Roman 
 Catholic inhabitants of New Brunswick to disallow an act 
 passed by the provincial legislature in relation to common 
 schools, on the ground that it was an infringement of certain 
 rights which they enjoyed as a religious body at the time of 
 confederation. The question not only came before the courts 
 of New Brunswick and the Canadian House of Commons, but 
 was also submitted to the judicial committee of the imperial 
 privy council, but only with the result of showing beyond 
 question that the objectionable legislation was clearly within 
 the jurisdiction of the legislature of New Brunswick, and 
 could not be constitutionally disallowed by tlie Dominion 
 government on the ground tliat it violated any right or 
 privilege enjoyed by the Roman Catholics at the time of 
 union. ^ 
 
 A far more difficult question respecting education arose in 
 Manitoba. It appears that, prior to the formation of Mani- 
 toba in 1870, there wjis not in the province any public system 
 
 ' Bank of Toronto, et a/., v. Lanibe, 12 App. Cas., 587 ; 4 Cart. (1887), 23, 
 Lefroy reviews tins important case in all its aspects. 
 
 * Sec app. A , s. 9.3. 
 
 'For a succinct review of this case see Todd's Pari. Govt, in B. C, 2nd ed., 
 pp. 458-463.
 
 126 LEGISLATIVE JURISDICTION. 
 
 of education, but the several religious denominations had 
 established such schools as they thought fit to maintain by 
 means of funds voluntarily contributed by members of their 
 own communion. In 1871 the legislature of Manitoba estab- 
 lished an educational system distinctly denominational. In 
 1890 this law was repealed, and the legislature established a 
 system of strictly non-sectarian schools. The Roman Catholic 
 minority of the province was deeply aggrieved at what they 
 considered a violation of the rights and privileges which they 
 enjoyed under the terms of union adopted in 1870. The first 
 sub-section of the twenty-second section of the act of 1870 set 
 forth that the legislature of the province could not pass any 
 law with regard to schools which might " prejudicially affect 
 any right or privilege with respect to denominational schools 
 which any class of persons have, by law or practice, in the 
 province at the time of union." The dispute was brought 
 before the courts of Canada, and finally before the judicial 
 committee of the privy council, which decided that the legis- 
 lation of 1890 was constitutional, inasmuch as the only right 
 or privilege which the Roman Catholics then possessed " b}' 
 law or practice " was the right or privilege of establishing and 
 maintainino- for the use of members of their own church such 
 schools as they pleased. The Roman Catholic minority then 
 availed themselves of another provision of the twenty-second 
 section of the Manitoba act, which allows an appeal to the 
 governor-in-council " from any act or decision of the legisla- 
 ture of the province or of any provincial authority, affecting 
 any right or privilege of the Protestant or Roman Catholic 
 minority of the Queen's subjects in relation to education." 
 
 The ultimate result of this reference was a judgment of the 
 judicial committee to the effect that the appeal was well 
 founded, and that the governor-in-council had jurisdiction in 
 the premises, but the committee added that " the particular 
 course to be pursued must be determined by the authorities to 
 whom it has been committed by the statute." The third sub- 
 section of the twenty-second section of the Manitoba Act — a 
 repetition of the provision of the British North America Act
 
 DECISIOXS ON QUESTIONS OF JURISDICTION. 127 
 
 with respect to denominational schools in the old provinces — 
 provides not only for the action of the governor-in-council 
 in case a remedy is not supplied by the proper provincial 
 authority for the removal of a grievance on the part of a 
 religious minority, but also for the making of "remedial laws" 
 by the parliament of Canada for the " due execution " of the 
 provision protecting denominational schools. In accordance 
 "vvith this provision Sir Mackenzie Bowell's government passed 
 an order-in-council on the 21st March, 1895, calling upon the 
 government of Manitoba to take the necessary measures to 
 restore to the Roman Catholic minority such rights and privi- 
 leges as were declared by the highest court of the empire to 
 have been taken away from them. The Manitoba government 
 not only refused to move in the matter, but expressed its 
 determination "to resist unitedly by every constitutional 
 means any such attempt to interfere with their provincial 
 autonomy." The government introduced a remedial bill in the 
 House of Commons during tlie first session of 1896, but it was 
 opposed with great earnestness and never became law.^ The 
 elections that followed led to a change of government and the 
 passage of a statute by the Manitoba legislature in the direc- 
 tion of giving the French Catholics of the province some 
 facilities for learnint; their lanijuaore and receivins: reliofious 
 in.struction in the public schools.- 
 
 Powers and Privileges of the Governments and Legislatures 
 
 of the Provinces. 
 
 Since 1867, the courts have given several important de- 
 cisions which have settled doubts which had arisen as to the 
 status of tlie lieutenant-governors, and as to the powers and 
 privileges of the legislatures of the provinces. In one nota])le 
 case the question how far a lieutenant-governor is the repre- 
 
 *For history- of tin's vexed question rco Todd's Pari. Gov. in B. C, 2nd ud., 
 pji. 46o-47S ; Can. Com. Schs. P., 1895, wliich iiicltidcs remedial order ; Com. 
 Hans, for 18(MJ. 
 
 ''Man. Stat, for 1897, 60 Vict., c. 27. Sec remarks of Sir W. Laurier (prime 
 minister) on this compromise, in Com. Hans, for 1897, jip. f>.S-(iG
 
 128 LEGISLATIVE JURISDICTION. 
 
 sentative of the sovereign was considered and placed beyond 
 dispute. The judicial committee of the privy council have 
 set forth : That by section 58 of the British North America 
 Act, 1867, the appointment of a provincial governor is made 
 by the governor-general-in-council, by instrument under the 
 great seal of Canada, or in other words, by the executive 
 government of the Dominion, which is, by section 9, expressly 
 declared " to continue and be vested in the Queen." There is 
 no constitutional anomaly in an executive officer of the Crown 
 receiving his appointment at the hands of a governing body 
 who have no power and no functions except as representa- 
 tives of the Crown. The act of the governor-general and hfs 
 council in making the appointment was, within the statute, 
 the act of the Crown ; and a lieutenant-governor, when ap- 
 pointed, is as much the representative of the Crown for all 
 purposes of provincial government as the governor-genera/. 
 himself is for all purposes of Dominion government.^ 
 
 This 'decision of the privy council has also a direct applica* 
 tion to a legal controversy which existed for several years 
 between the Dominion and provincial governments, as to the 
 right of making queen's (now king's) counsel — the exclusive 
 right having been claimed by the Dominion government as a 
 prerogative of the Crown, to be exercised by the governor- 
 general, and so upheld by some of the judges of the supreme 
 court of Canada in the case of Lenoir and Kitchie in 1879.2 
 The question came before the judicial committee of the privy 
 council in 1897, on appeal from a judgment of the court of 
 appeal of Ontario, who had decided unanimously in favour of 
 the provincial view. Their lordships held that, according to 
 
 ^ See Privy Council in " The Liquidators of the Maritime Bank of Canada v. 
 The Receiver-General of New Brunswick." App. Cas. (1892), 443; Lefroy 
 93, 94. 
 
 ''Can. Sup. C. R., iii., 575 ; Cart., i., 488. See a report of Sir Oliver Mowat, 
 when minister of justice in 1896 (L. N., 1896, p. 284), recommending the 
 rescinding of certain appointments made by a previous government, and the 
 deferring of all appointments until a judicial decision was attained on the 
 question at issue.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 129 
 
 the true construction of the British North America Act, 1867, 
 s. 92, sub-ss. I., 4, 14,1 chapter 39 of the Revised Statutes 
 of Ontario, 1877, which empowers the lieutenant-governor of 
 the province to confer precedence by patents upon such 
 members of the bar of the province as he may think fit to 
 select, was intra vires of the provincial legislature.- As a 
 result of this decision the federal government's power to ap- 
 point king's counsel is confined to the federal courts, while the 
 provincial governments' power is limited to the provincial 
 courts. 
 
 In the Pai-doning Power case it has been held that the 
 Ontario Act, 51 Vict, c. 5, which purports to vest in the 
 lieutenant-governor for the time being, amongst other powers, 
 the power of commuting and remitting sentences for ofiences 
 against the law of the province, or offences over which the 
 legislative authority of tlie province extends, was intra vires? 
 The supreme court of Canada, before whom the question of 
 the validity of the Ontario act came for argument, were in- 
 fluenced by the decision in the case of the Maritime Bank, 
 which practically settles doubts as to the right of a lieutenant- 
 governor to represent the Crown. The court dismissed the 
 appeal mainly on the ground that in view of the terms and 
 conditions of the act in doubt " it was impossible to say that 
 the powers to be exercised under that act by the lieutenant- 
 governor are unconstitutional."^ 
 
 — s . 
 
 ' S. 92, 8iib-8. 1: "The amendment from time to time, notwithstanding 
 anything in this act, of tlie constitution of the province, except as regards the 
 ofhce of lieutenant-governor." Suh-s. 4: " Tiie establislnnent and tenure of 
 provincial offices, anrl tlie appointment and paj-ment of provincial officers." 
 Sul)-8. 14 : "The administration of justice in the province, including the con- 
 stitution, maintenance and organi/,ation of provincial courts, both of civil and 
 criminal jurisdiction, and including jjrocedure in civil matters in those courts." 
 
 ^L. K., App. Cas. (lHfl8), 247-200. 
 
 » Boyd, Chancellor, 20 Ont. Rep. (1890), 254 ; affirmed by the Ontario Court 
 of Appeal, « A. H, :!l. 
 
 *Can. 8up. C. R. xxiii., 458. 
 9
 
 130 LEGISLATIVE JURISDICTION. 
 
 Privileges of Provincial Legislatures. 
 
 The question of the extent of the privileges of the legislative 
 assemblies of the provinces of Canada has also come before the 
 courts of the Dominion and the privy council. Immediatelj'- 
 after confederation, the legislatures of Ontario and Quebec 
 passed acts to give the respective houses such privileges and 
 powers as are held by the Senate and House of Commons of 
 Canada.^ When these statutes were disallowed as ultra vires 
 by the governor-general-in-council,^ the legislatures passed 
 other acts more clearly defining their respective privileges.^ 
 These acts were left to go into effect, and the court of queen's 
 bench in Quebec decided that the statute of that province M^as 
 ultra vires} In 1874 a Manitoba act was disallowed, but a 
 subsequent statute was permitted to come into operation.^ 
 
 The action of the respective provincial legislatures in passing 
 statutes respecting their privileges and powers was subse- 
 quently justified by a decision of the supreme court of Canada 
 with respect to a difficulty that arose in the house of assembly 
 of Nova Scotia. It appears that Mr. Woodworth, a member 
 of the house of assembly of Nova Scotia, on the 16th of April, 
 1874, charged the provincial secretary of the day — without 
 being called to order for doing so — with having falsified a 
 record. The charge was subsequently investigated by a 
 committee of the house, who reported that it was unfounded. 
 Two days later the house resolved that in preferring the 
 charge without sufficient evidence to sustain it, Mr. Woodworth 
 was guilty of a breach of privilege. On the 30th of April, 
 Mr. Woodworth was ordered to make an apology dictated by 
 
 1 Ont. Stat., 32 Vict., c. 3. Quebec Stcat., 32 Vict., c. 4. 
 
 "Can. Sess. P. (1877), No. 89, pp. 202-212, 221 ; Todd's Pari. Govt, in B. C, 
 2nd ed. , 522 et neq. 
 
 3 Ont. Stat., 39 Vict., c. 9. Quebec Stat., 33 Vict., c. 5. See Q. Rev. Stat,, 
 art. 128, am. by 61 Vict., c. 12. 
 
 ^Dansereau, ex parte; 19 L C. J. 210, Cart., ii., 165. Consult also Can. Sess. 
 P., 1877, No. 89, pp. 108-14, 201, for opinions of Dominion authorities. 
 
 5 Man Stat. (1873), c. 2; lb. (1876), c. 12; Can. Sess. P., 1877, No. 89, pp. 
 44-47, 106-9.
 
 DECISIONS ON QUESTIONS OF JURISDICTION. 131 
 
 the house, and, having refused to do so, was declared, by 
 anotlier resolution, guilty of a contempt of the house, and 
 requested forthwith to withdraw until such apology should be 
 made. Mr. Woodworth declined to withdraw, whereupon 
 another resolution was passed ordering the removal of Mr. 
 Woodworth from the house by the serjeant-at-arms, who with 
 his assistant, enforced the order and removed Mr. Woodworth, 
 who soon afterwards brought an action of trespass for assault 
 against the speaker and certain members of the house, and 
 obtained a verdict of $500 damages. The supreme court held, 
 on appeal, affirming the judgment of the supreme court of 
 Nova Scotia, that the legislative assembly of Nova Scotia had 
 no power to punish for any offence not an immediate obstruc- 
 tion to the due course of its proceedings, and the proper 
 exercise of its functions, such power not being an essential 
 attribute, nor essentially necessary for the exercise of its 
 functions by a local legislature, and not belonging to it as a 
 necessary or legal incident ; and that, without prescription or 
 statute, local legislatures have not the privileges whicli belong 
 to the House of Commons of Great Britain by the lex et 
 consuetudo Parliamenti. The allegations and circumstances 
 shown in tlie case in question afforded, in its opinion, no 
 justification for the plaintiff's removal ; he was not then guilty 
 of disorderly conduct in the house, or interfering with or in 
 any way obstructing the deliberations or business, or prevent- 
 ing tlie proper action of the house, or doing any act rendering 
 it necessary, f(jr self-preservation or maintenance of good order, 
 that he should be removed.^ 
 
 An act passed by tlie Nova Scotia legislature in 1876, while 
 the foregoing action of Landers v. Woodworth was pending, 
 also came under review of the judicial committee of the privy 
 
 'Can. Sup. C. R., ii., I.W^IS. Kiully v. Carson (4 Moore P. C. C. 63), aii.l 
 Doyle »'. Fiilconcf (L. R. 1 P. C. , Ajip .3'2S), were comimntcd upon l)y lliu 
 court and followed. The learned cliicf jii.slice eiled these and other cases 
 bearing on the question, viz., Reaumont and Barrett (1 Moore P. C. C, p. 59); 
 Fenton and Hampton (11 Moore, .347); Cuvillier v. Monro (4 L. C. R., 146); 
 I^voie'H case (.'") L. C. R , p. Dfl) ; Dill r. Murj.hy (1 Moore P. C, C-N. S., 487) ; 
 ex parte Dansereau, IjOW. Can. Jurist, viA. xix. 21(t-"24S.
 
 132 LEGISLATIVE JURISDICTION. 
 
 council in 189G. By the Nova Scotia act it was declared tTiat 
 no member shall be liable to any civil action by reason of 
 anything brought by petition, bill, etc., before the house. The 
 following acts are proliibited, amongst others : Insults to or 
 assaults upon members during the session. Each house to be 
 a court of record, with power to adjudicate upon and punish 
 offences under the statute. Offenders to be liable to imprison- 
 ment. The plaintiff intentionally disobeyed the order of the 
 house to attend before the house, and was arrested by the 
 serjeant-at-arms and imprisoned, under order of the house. 
 Being released under a writ of habeas corjnis, he brought an 
 action against certain members for assault and imprisonment. 
 Judgment went for the plaintiff On appeal to the supreme 
 court of Nova Scotia the court was equally divided, and the 
 judgment affirmed. This appeal was then taken to the privy 
 council and tlie judgment was reversed, on the ground that 
 the provincial act was intra vires. Their lordships held : 
 That local legislatures existing at the time had authority prior 
 to confederation to make laws respecting their constitution, 
 powers and procedure, and to punish for contempt and dis- 
 obedience of their orders. That even if this power did not 
 then exist, the British North America Act, 1867, by section 92, 
 conferred power on the local legislature to pass acts for defin- 
 ing their powers and privileges, and that consequently the 
 protection of members from insult, as set forth in the Nova 
 Scotia statute, was clearly part of the constitutional law of 
 the province. That the legislature has none the less a right 
 to prevent and punish obstruction to the business of legislation 
 because the interference or obstruction is of a character which 
 involves the commission of a criminal offence, or brings the 
 offender within the reach of the criminal law. Finally, that 
 the proliibition in the statute against bi-inging a civil action 
 against any member was a complete bar to the action.^ 
 
 To make this historical review complete, I may add that the 
 legislatures of New Brunswick, Prince Edward Island and 
 
 ^L. N. (1896), 228-235, App. Cas., 600 ; consult Lefroy, 742-750.
 
 BULES OF CONSTRUCTION. 133 
 
 British Columbia liave also passed statutes respecting their 
 powers and privileges.^ 
 
 III. Eules of Construction and Constitutional Principles laid down 
 by the Courts.— The foregoing review clearly shows the difficul- 
 ties that have arisen in the construction of the provisions of 
 the British North America Act, relating to the distribution of 
 legislative powers between the parliament of Canada and the 
 legislatures of the provinces, owing to the very general lan- 
 guage in which some of those powers are described. The 
 nearest approach to a rule of general application that has 
 been attempted in the courts of Canada, with a view to 
 reconcile the apparently conflicting legislative powers under 
 the act, is with respect to property and civil rights, over 
 which exclusive legislative authority is given to the local 
 legislatures : that, as there are many matters involving prop- 
 erty and civil rights expressly reserved to the Dominion 
 parliament, the power of the local legislatures must, to a 
 certain extent, be subject to the general and special legislative 
 powers of the Dominion, But while the legislative rights of 
 the local legislatures are, in this sense, subordinate to the 
 rights of the Dominion parliament, these latter must be 
 exercised, so far as may be, consistently with the rights of the 
 local legislatures, and therefore the Dominion parliament 
 would only have the right to interfere with property and 
 civil rights in so far as such interference may be necessary for 
 the purpose of legislating generally and efl'ectually in relation 
 to matters confided to the parliament of Canada.^ 
 
 The judicial coiumittec of tht- privy council have endeav- 
 oured to lay down certain priiicii)les which should guide those 
 who arc called upon to interpret the Union Act. Tiie first 
 step to be taken, with a view to test the validity of an act of 
 
 ' N. R Stat., 53 Vict., c. 6 ; P. E. I. Stat., 53 Vict, c. 4, s. 110 ; Rev. Stat. 
 of B. C. (ISiJT), c. 118. 
 
 'Ritchie, C. J., in 'i'iu; f^uccn r. Kobcrtson, Can. Su|i. ( '. K., vol. vi., 
 110-11. AIho, Valin j\ Langloi.s, vol. iii., l.l ; The Citizens Jiisuraiicc Co. v. 
 I'arHoriH, vol. iv., 242. See rfinaikM of Sir M. K. Smith in ('ushintj; /•. Diipuy, 
 5 App. Cas. 415 ; Cart, i., 258, with respect to hankr ii)>try and in.solvcncy.
 
 134 LEGISLATIVE JURISDICTION. 
 
 a provincial legislature, is to consider whether the subject- 
 matter falls within any of the classes of subjects enumerated 
 in section ninety-two, which states the legislative powers of 
 the provincial legislatures. If it does not come within any of 
 such classes, the provincial act is of no validity. If it does, 
 these further questions may arise, viz., whether the subject of 
 the act does not only fall within one of the enumerated classes 
 of subjects in section ninety-one, which states the legislative 
 power of the Dominion parliament, and whether the power of 
 the provincial legislature is, or is not, thereby overborne.^ 
 
 The same eminent authority has in another judgment^ 
 expressed the following opinion : 
 
 " That it must have been foreseen that some of the classes 
 of subjects assigned to the provincial legislatures unavoidably 
 ran into, and were embraced by, some of the enumerated 
 classes of subjects in section ninety-one ; hence an endeavour 
 appears to have been made to provide for cases of apparent 
 conflict ; and it would seem that with this object it was 
 declared in the second branch of the ninety-first section, ' for 
 greater certainty, but so as to restrict the generality of the 
 foregoing terms of this section,' that (notwithstanding anything 
 in the act) the exclusive authority of the parliament of Canada 
 should extend to all matters coming within the classes of 
 suVjjects enumerated in that section. Notwithstanding this 
 endeavour to give pre-eminence to the Dominion parliament in 
 cases of a conflict of powers, it is obvious that in some cases 
 where this apparent conflict exists, the legislature could not 
 
 ^ Dobie V. The Temporalities Board of the Presbyterian Church in Canada, 
 7 App. Cas. , 136; Cart., i., 367. In Steadman v. Robertson (2 Pug. and Bur., 
 580) one of the judges of the supreme court of New Brunswick expressed the 
 opinion : " The B. N. A. Act is distributive merely in respect to powers of 
 legislation exercisable Ijy the Dominion parliament and by the local legisla- 
 tures respectivel}', and the Dominion parliament may not intrench upon 
 property and civil rights which are under the guardianship and subject to the 
 power of the local legislatures, except to the extent that may be required to 
 enable parliament to ' work out ' the legislation upon the particular subject 
 specially delegated to it." 
 
 *The Citizens & Queen Insurance Co. v. Parsons, Rep. 45, L. T. N. S. 721 ; 
 Cart., i., 271-273.
 
 RULES OF CONSTRUCTION. 135 
 
 have intended that the powers exclusively assigned to the 
 provincial legislature should be absorbed in those given to the 
 Dominion parliament. Take as one instance the subject 
 ' marriage and divorce,' contained in the enumeration of subjects 
 in section ninety-one. It is evident that solemnization of 
 marriage would come within this general description ; yet 
 ' solemnization of marriage in the province ' is enumerated 
 among the classes of subjects in section ninety-two, and no 
 one can doubt, notwithstanding the general language of section 
 ninety-one, that this subject is still within the exclusive 
 authority of the legislatures of the provinces. So ' the raising 
 of money by any mode or system of taxation ' is enumerated 
 among the classes of subjects in section ninety-one ; but though 
 the description is sufficiently large and general to include 
 ' direct taxation within the province, in order to the raising of 
 a revenue for provincial purposes,' assigned to the provincial 
 legislatures by section ninety-two, it obviously could not have 
 been intended that, in this instance also, the general power 
 should override the particular one. With regai'd to certain 
 classes of subjects, therefore, generally described in section 
 ninety-one, legislative power may reside as to some matters, 
 falling within the general description of these subjects, in the 
 legislatures of the provinces. In these cases, it is the duty of 
 the courts, however difficult it may be, to ascertain in what 
 degree, and to what extent, authority to deal with matters 
 falling within these classes of subjects exists in each legislature, 
 and to define, in the particular case before them, the limits of 
 tlieir respective powers. It could not have been the intention 
 that a conflict should exist, and, in order to prevent such a 
 result, the language of the two sections must be read together, 
 and that of one interpreted, and, where necessary, modified by 
 that of the otlier. In this way it may, in most cases, be f(Mind 
 possible to arrive at a reasonable and practical construction of 
 the language of the sections so as to reconcile the respective 
 powers they contain, and give eft'ect to all of thcni." 
 
 In giving a summary of tlie most iiii|)ortant judicial decisions 
 on questions of legislative jurisdiction, the writer lias thought
 
 136 LEGISLATIVE JURISDICTION. 
 
 it the wisest course in a work of this character to allow the 
 reader to study out each subject for himself and form his own 
 conclusions in matters of doubt. In reviewing these decisions, 
 however, certain constitutional principles may be evolved for 
 the guidance of those engaged in the working out of the 
 federal system of the Dominion, and to some of these the 
 writer may now appropriately refer. 
 
 The object of the British North America Act of 1867 is 
 neither to weld the provinces into one nor to subordinate 
 provincial governments to a central authority, but to create a 
 federal government in which they should be represented — a 
 government entrusted with the exclusive administration of 
 affairs in which they all have a common interest, while each 
 province retains its independence and autonomy. That object 
 is accomplished by distributing between the Dominion and 
 the provinces all executive and legislative powers and all 
 public property and revenues which had previously belonged 
 to the provinces, so that the Dominion government should be 
 vested with such of those powers, property and revenues as 
 are necessary for the performance of its constitutional func- 
 tions, and that the remainder should be retained by the 
 provinces for the purpose of provincial governments.^ 
 
 The Dominion parliament and the provincial legislatures 
 are sovereign bodies within their respective constitutional 
 limits. While the Dominion parliament has entrusted to it a 
 jurisdiction over matters of national import, and possesses 
 besides a general power to legislate on matters not specifically 
 reserved to the local legislatures, the latter nevertheless have 
 had conferred upon them powers as plenary and ample within 
 the limits prescribed by the constitutional law as are possessed 
 by the general parliament.'^ 
 
 In interpreting the constitution, prescribing the limits of 
 the respective legislative authorities in the Dominion, every 
 care should be taken to consider each case as it arises, and to 
 
 ^ Privy Council in "The Liquidators of the Maritime Bank of Canada" v. 
 The Receiver-General of NeAV Brunswick, App. Cas. (1892), 441-2. 
 ^ Supra, 101, 102.
 
 RULES OF CONSTRUCTION. 137 
 
 determine the true nature and character of the legislation in 
 the particular instance under discussion in order to ascertain 
 the class oi subjects to which it really belongs.^ 
 
 In all cases, each legislative body should act within the 
 sphere of its clearly defined powers ; and the Dominion parlia- 
 ment should no more extend the limits of its jurisdiction 
 by the generality of the application of its law, than a local 
 legislature should extend its jurisdiction by localizing the 
 application of its own statute.- 
 
 The parliament of Canada has a right to interfere with 
 matters of property, civil rights and procedure in a province, 
 when it is necessary for the purpose of legislating generally 
 and effectually in relation to matters which fall properly 
 within the jurisdiction of the general legislature.^ 
 
 The federal parliament must have " a free and unfettered 
 exercise of its powers" with respect to matters placed under its 
 control, even though such exercise may interfere with some of 
 the powers left under provincial control.* The exercise of the 
 powers of the local legislatures, in those cases, must necessarily 
 be subject to such regulations as the Dominion may lawfully 
 prescribe.^ 
 
 But it is reasonable to assume that the right of the federal 
 parliament to legislate in this particular is limited to such 
 legislation as is absolutely necessary to give full effect to its 
 lawful powers. It cannot be argued from the most strained 
 interpretation of the constitution that the federal legislature 
 should, in tlie exercise, for instance, of its general power to 
 regulate trade and commerce, or to provide for the peace, 
 order or good government of Canada, o])literate the jurisdic- 
 tion of the local legislatures over matters of a purely pro- 
 
 ^ Supra, 134, 135. 
 
 'Lfgal News on Hodge v. the Qik-ch, Jan. 26, 1884. .See remark.s of 
 Ta.sohereau, J., Can. Sup. C. R., iv., 31U. 
 ^Suprn, 133. 
 
 «Can. Sup. C. R., iv., .308, Taschereau, J. 
 » lb. 242, Ritchie, C. J.
 
 138 LEGISLATIVE JURISDICTION. 
 
 vincial or municipal character, or assume full control over 
 civil rights and property.^ 
 
 The exercise of legislative power by the parliament of 
 Canada in regard to all matters not enumerated in section 92, 
 ought to be strictly confined to such matters as are unques- 
 tionably of Canadian interest and importance, and ought not 
 to trench upon provincial legislation with respect to any of 
 the classes of subjects enumerated in section 92. To attach 
 any other construction to the general power which, in sup- 
 plement of its enumerated powers, is conferred upon the 
 parliament of Canada by section 91, would not only be con- 
 trary to the intendment of the act, but would practically 
 destroy the autonomy of the provinces. If it were once 
 conceded that the parliament of Canada has authority to 
 make laws applicable to the wdiole Dominion in relation to 
 matters which in each province are substantially of local or 
 private interest, upon the assumption that these matters also 
 concern the peace, order and good government of the Dominion, 
 there is hardly a subject enumerated in section 92 upon which 
 it might not legislate, to the exclusion of the provincial 
 legnslatures. No doubt some matters in tlieir origin local 
 and provincial might attain such dimensions as to affect the 
 body politic of the Dominion, and to justify the Canadian 
 parliament in passing laws for their regulation or abolition in 
 the interests of the Dominion. But great caution must be 
 observed in distinfjuishing between that which is local and 
 provincial, and therefore within the jurisdiction of the pro- 
 vincial legislatures, and that w^hich has ceased to be merely 
 local or provincial, and has become matter of national concern 
 in such sense as to bring it wdthin the jurisdiction of the 
 parliament of Canada. An act restricting the right to carry 
 weapons of offence, or their sale to young persons within the 
 province, would be wdthin the authority of the provincial 
 legislature ; but traffic in arms, or the possession of them in 
 such circumstances as to raise a suspicion that they were to 
 be used for seditious purposes or against a foreign state, are 
 
 ^ Can. Sup. C. R. , iv. 272, Fournier, J.
 
 RULES X)F CONSTRUCTION. 139 
 
 matters wliich their lordshijDS conceive might he competently 
 dealt with by the parliament of the Dominion. ^ 
 
 Parliament may give powers to a railway or other company 
 to expropriate and hold lands, as a necessary incident to its 
 right to create such companies ; - but it cannot lawfully pre - 
 scribe the terms and conditions on which the conveyance of 
 real estate is to be made to a corporate body, but should leave 
 all laws in each province to operate as to such conveyance.-^ 
 Nor does its authority to legislate for the regulation of trade 
 and commerce comprehend the power to regulate by legisla- 
 tion the contracts of a particular business or trade, as such 
 contracts are matters of civil rights which fall within the 
 jurisdiction of the provincial legislatures.* 
 
 Parliament itself has, on more than one occasion, recognized 
 the necessity of giving full scope to the powers of the pro- 
 vincial legislatures. For instance, it has refused to embody in 
 an act such clauses as would practically nullify the provisions 
 of a local statute, wholly within the jurisdiction of the local 
 sovereignty, which had, in the first instance, created the 
 corporation.^ 
 
 On the other hand, the local legislatures, whose powers are 
 limited compared with those of the general parliament, must 
 be careful to confine the exercise of these to the particular 
 subjects expressly placed under their jurisdiction, and not to 
 encroach upon subjects which, being of national importance, 
 are, for that very reason, placed under the exclusive control of 
 parliament.*" 
 
 No conflict of jurisdiction need arise because subjects which, 
 in Olio asj)ect and for one purpose, fall within the powers of 
 the Dominion legislature, may, in another asjjcct and for 
 
 ' I.on) WatHon, in tlic I'roli. I.iquor Laws Case, 10 1.. N. 199. 
 ='Can. Han.H. (1882), 433 (Mr. Mills). 
 'Can. Com. J. (1883), 326. 
 
 * Supra, 87, 88. 
 
 * See Bourinot's Pari. Procedure, first chapter on private bills, sec. 3. 
 'Cam Sup. C. R , iv. 347, flwynne, J.
 
 140 LEGISLATIVE JURISDICTION. 
 
 another purpose, fall within the powers of the local legis- 
 latures. The general authority, for instance, possessed by 
 the Dominion to make laws relating to public order and 
 safety, or regulating trade and commerce, does not prevent 
 the local legislature from exercising its municipal powers 
 with respect to the same subjects.^ 
 
 Laws designed for the promotion of public order, safety, or 
 morals, belong to the subject of public wrongs rather than to 
 that of civil rights. The primary matter dealt with by such 
 legislation is the public order and safety — a matter clearly 
 falling within the general authority of parliament to make 
 laws for the order and good government of Canada.^ Conse- 
 quently a uniform law passed by the general legislature to 
 promote temperance in the Dominion, does not conflict with 
 the power possessed by the local legislature to pass an act 
 authorizing the making of such police or municipal regulations 
 of a merely local character as are necessary for the good 
 government of taverns and other places licensed to sell liquor 
 by retail.3 
 
 Where a power is specially granted to one legislature, that 
 power will not be nullified by the fact that, indirectly, it 
 affects a special power granted to the other legislature. " This 
 is incontestable," says a learned judge, " as to the power 
 granted to parliament (section 91, last paragraph), and prob- 
 ably is equally so as to the power granted to the local 
 legislature. In other words, it is only in the case of absolute 
 incompatibility that the special power granted to the local 
 legislature gives way."'* Such a principle seems absolutely 
 necessary to the efficient operation of the federal constitution. 
 
 The Dominion parliament has no authority conferred upon 
 it by the British North America Act to repeal directly any 
 provincial statute, whether it does or does not come within the 
 limits of jurisdiction prescribed by section 92. The repeal 
 
 1 Su]yra, 96. ^ !h. 95, 96. 
 
 ^ Supra, 100, 101. 
 
 * Meredith, C. J., cited by Ramsay, J., 5 Leg. News, 333.
 
 RULES OF COXSTRUCTION. 141 
 
 of a provincial act bj^ the parliament of Canada can only 
 be effected by repugnancy between the provisions and enact- 
 ments of the Dominion ; and if the existence of such repug- 
 nancy should become a matter of dispute, the controversy 
 cannot be settled by the action either of the Dominion or the 
 provincial legislature, but must be submitted to the judicial 
 tribunals of the country.^ 
 
 The right to direct the procedure in civil matters in tlie 
 provincial courts, has reference to the procedure in matters 
 over which the provincial legislature has power to give them 
 jurisdiction, and does not in any way interfere with or restrict 
 the right or power of the Dominion parliament to direct the 
 mode of procedure to be adopted in cases in which the 
 Dominion parliament has jurisdiction and where it has exclu- 
 sive authority to deal with the subject-matter, as it has with 
 the subject of bankruptcy and insolvency .^ 
 
 In the inception of the confederation it was believed by its 
 authors that the care taken to define the respective powers of 
 the several legislative bodies in the Dominion would prevent 
 any troublesome or dangerous conflict of authority arising 
 between the central and local governments.'^ The experience 
 of the past twenty years has proved that it is inevitable in 
 the case of every written constitution, especially in the opera- 
 tion of a federal system, that there should arise, sooner or 
 later, perplexing questions of doubt as to where power exists 
 with respect to certain matters of legislation. It has been 
 sometimes urged in parliament that connnittees'* should be 
 organized in bf^th houses to lay down rules or principles for 
 legislation, in order to prevent, as far as possible, any conflict 
 of jurisdiction, lint it is (jucstionable if political bodies can 
 
 'App c. (lS9r,), 300. 
 
 "Ritchi'j, C. J., in Sliiolds v. T'cak, 8 S.C. U., 591. Si>o ulso Lofroy, ]\ 440, 
 n. 5. 
 
 'See remarks of Sir .Tdlm Mac(lon;iiil in 1S05, Conf. Rcb. 32. 
 
 *Tho Senate rules provide for tlie reference of liills on mIiIiIi tln' <|iiestion of 
 juri.sdiction has been raised to the committee of standing order.s and private 
 bills.
 
 142 LEGISLATIVE JURISDICTION. 
 
 ever be the safest interpreters of constitutional law. It is in 
 the courts that the solution must be sought for the difficulties 
 that arise in the working of a federal constitution. As long 
 as the courts of Canada continue to be respected as impartial, 
 judicious interpreters of tlie law, and her statesmen are 
 influenced by a desire to accord to each legislative authority 
 in the Dominion its legitimate share in legislation, dangerous 
 complications can hardly arise to prevent the harmonious 
 operation of a constitutional system whose basis rests on the 
 principle of giving due strength to the central government, 
 and at the same time every necessary freedom to the different 
 provinces which compose the confederation. 
 
 IV. Disallowance of Provincial Acts.— The British North Amer- 
 ica Act not only enables the courts to decide legal controver- 
 sies arising out of its provisions, but provides a more speedy 
 mode of arresting the operation of provincial legislation 
 clearly unconstitutional or injurious to the national interests. 
 The same powers of disallowance that belonged to the im- 
 perial government previously to 1867, with respect to acts 
 passed by colonial legislatures, have been conferred by the 
 federal constitution on the government of the Dominion. It 
 is now admitted beyond dispute that the power of confirming 
 or disallowing provincial acts has been vested by law abso- 
 lutely and exclusively in the governor-general-in-council.^ In 
 the first years of the confederation it became, therefore, 
 
 ^ "The power of the governor-general-in-council to disallow a provincial act 
 is as absolute as the power of the king to disallow a Dominion act, and is, in 
 each case, to be the result of the exercise of a soiuid discretion, and for which 
 exercise of discretion the executive council for the time being is, in either 
 case, to be responsible as for other acts of executive administration." — Harri- 
 son, C. J. , in Leprohon v. City of Ottawa, 40 U. C. R. 490 ; Cart. i. , 647. 
 See also Can. Sess. P., 1877, No. 89, pp. 407, 432-34. In the Connnons papers 
 will be found tlie arguments advanced by Mr. Blake, when minister of justice, 
 to show that the Canadian ministry must be directly and exclusively re- 
 sponsible to the Dominion parliament for the action taken by the governor in 
 any and every such case, and that a governor who thinks it necessary that a 
 provincial act should be disallowed, must find ministers who will take the 
 responsibility of advising its disallowance. lb. (1876), No. 116, pp. 79, 83. 
 lb. (1877), No. 89, pp. 449-458.
 
 DISALLOWANCE OF PROVINCIAL ACTS. 143 
 
 necessary to settle the course to be pursued in consequence of 
 the large responsibilities devolved on the general government. 
 As it was considered of importance " that the course of local 
 legislation should be interfered with as little as possible, and 
 the power of disallowance exercised with great caution, and 
 only in cases where the law and general interests of the Do- 
 minion imperatively demanded it," the minister of justice in 
 1868 laid down certain princii)les of procedure, which have 
 been generally followed up to the present time. On the re- 
 ceipt of the acts passed in any province, they are immediately 
 referred to the minister of justice. He thereupon reports 
 those acts which he considers free from objection of any kind, 
 and if his report is approved by the governor-in-council, such 
 approval is forthwith communicated to the provincial govern- 
 ment. He also makes separate reports on those acts which he 
 may consider : — 
 
 1. As being altogether illegal or unconstitutional. 
 
 2. As illegal or unconstitutional in part. 
 
 3. As, in cases of concurrent jurisdiction, clashing with the 
 legislation of tlie general parliament. 
 
 4.* As affecting the interests of the Dominion generally. 
 
 It has also been the practice, in the case of measures only 
 partially defective, not to disallow the act in the first in- 
 stance ; but, if the general interest permits such a course, to 
 give tlie local government an opportunity of considering the 
 objections to such legislation and of remedying the defects 
 therein.^ 
 
 Provincial acts must be disallowed, when the occasion arises, 
 in their entirety. The governor-goneral-in-council lias no 
 power to make a conditional disallowance ; that is to say, to 
 veto a part of an act and allow the remainfler to become law. 
 Neither can they suspend the operation of a statute so that 
 the same may have no force or effect until it is assented to by 
 a majority of the members of a legislature, constituted differ- 
 
 1 Report of Sir J. A. Macrlonald, Can. Scsr. P., 1870, No. 35, pp. 6-7. Also, 
 Ho<lgin8, Compilation of UrderH-in-Council (188G), vol. i., 5.
 
 144. LEGISLATIVE JURISDICTION. 
 
 ently from that which was in existence at time of its passage.^ 
 Provincial statutes are not transmitted to the imperial gov- 
 ernment like federal statutes, and cannot be disallowed in 
 England.2 
 
 Perhaps no power conferred upon the general government 
 is regarded with greater jealousy and restlessness than this 
 power of disallowing provincial enactments. So far, this 
 power has been exercised in relatively few cases out of the 
 large number of acts passed since confederation by the legis- 
 latures of the provinces. A review, however, of the very 
 voluminous papers relating to tliis question proves that, whilst 
 only a few acts have been disallowed, the legislation has been 
 considered partially objectionable in many cases by the law 
 officers of the Dominion ; but, in such cases generally, every 
 opportunity has been given to the local governments to re- 
 move the objections pointed out by the minister of justice.^ 
 
 Considerable discussion has arisen, however, in and out of 
 parliament, with respect to certain cases of disallowance. The 
 first of these cases was in connection with " An act for pro- 
 tecting the public interests in rivers and streams " (Ontario 
 Stat., 1881). It appears that one McLaren, a lumberman, con- 
 structed certain works on non-floatable streams, of which he 
 claimed to be seized in fee-simple, for the purpose of carrying 
 his logs to their destination. One Caldwell, carrying on the 
 same business higher up than the former, claimed the right 
 to use these streams under the first section of chapter 115, 
 R. S. O., as follows : " All persons may, during the spring, 
 summer and autumn freshets, float saw-logs, and other lumber, 
 rafts and craft down all streams." McLaren obtained an in- 
 junction from the court of chancery, restraining Caldwell from 
 making use of the improvements in question, on the ground 
 
 ^See Hoflgins' Prov. Leg., vol. I., pp. 674-5 ; Lefroy, 197. 
 
 ^Taschereau, J., in Lenoir v. Ritchie, 3 Can. Sup. C. R., 624. Cart. i.,. 
 531. See also Todd's Pari. Gov. in B. C, 2nd ed., p. 462, where the opinion 
 of Lord Carnarvon, secretary of state for the colonies, is cited. Also Lefroy, 
 p. 202, especially n. 2. 
 
 3Can. Sess. P., 18S2, Xo. 141, pp. 2-29; lb. 1886, No. 81.
 
 DISALLOWANCE OF PROVINCIAL ACTS. 145 
 
 that the words " all streams " only referred to those floatable 
 in a state of nature, and that the streams in question were not 
 navio-able for saw-lo^s or other lumber without artificial 
 improvements.^ Subsequently, in 1881, the legislature of 
 Ontario passed an act re-enacting the section cited above, and 
 at the same time declaring that its provisions shall extend to 
 all streams and all constructions and improvements thereon ; 
 and that all persons might make use of such improvements on 
 paying a reasonable toll (to be fixed by the lieutenant-governor- 
 in-council) to the person who has made these improvements on 
 the streams. An appeal was made to the governor-general-in- 
 council to disallow the act on the ground that it was uncon- 
 stitutional, inasmuch as it deprived the petitioner of extensive 
 and important private rights without providing adequate 
 compensation, and as it embodied ex post facto legislation, 
 contrary to all sound principles that should govern in such 
 cases. The minister of justice advised, and the privy council 
 concurred in the advice, that the act be disallowed for these 
 reasons principally: "That the act seems to take away the use 
 of the owner's property and give it to another, forcing the 
 owner practically to become a toll-keeper against his will, if he 
 wished to get any compensation for being thus deprived of 
 his rights. That the power of the local legislatures to take 
 away the rights of one man and vest them in another, as is 
 done in the act, is exceedingly doubtful ; that, assuming such 
 a right does in strictness exist, it devolves upon the Dominion 
 government to see that such power is not exercised in flagrant 
 violation ot private riglits and natural justice, especially when, 
 as in this case, in arldition to interfering Avith private rights 
 in the way alluded to, the act over-rides a decision of a court 
 of competent jurisdiction by declaring retrospectively that 
 
 ' The Huprcme court oi Canada, in November, 1882, aflinned the decree of 
 the court of chancery, and reversed tlio decision of the court of appeal of 
 Ontario to tlie etfeot that the R. S. 0., c. llf), s. 1, re-enacting C. S. U. C. , c. 
 48, 8. 1.5, made all streams, whether artificially or naturally floatable, public 
 waterways. Can. Sup. C. R. , viii. 43.5. In 1884 the privy council decided that 
 tlic judgment of the siipnrin- couit should be reversed and that of tlie court of 
 appeal restored. L. N. 195, 203. 
 10
 
 146 LEGISLATIVE JURISDICTION. 
 
 the law always was, and is, different from that laid down by 
 the coui't." To this decision strong objection was taken by 
 the government of Ontario, in an elaborate state-paper, in 
 which it was emphatically urged that the governor-general-in- 
 council should not assume to review any of the provisions 
 of an act passed by the provincial legislature on a subject 
 within its competency under the British North America Act.^ 
 The legislature of Ontario subsequently re-enacted the act of 
 1881, which was again disallowed by the government of the 
 Dominion. 
 
 The act of the Manitoba legislature, incorporating the 
 Winnipeg South-Eastern Railway Company, was disallowed 
 because it conflicted with "the settled policy of the Dominion, 
 as evidenced by a clause in the contract with the Canadian 
 Pacific Eailwa}^," which was ratified by parliament in the 
 session of 1880-81 ; which clause is to the effect that " for 
 twenty years from the date hereof no line of railway shall be 
 authorized by the Dominion parliament to be constructed south 
 of the Canadian Pacific Raihvaj^ from any point at or near 
 the Canadian Pacific Railway, except such line as shall run 
 south-west or to the westward of south-west, nor to within 
 fifteen miles of latitude 49." The government of Manitoba 
 contended at the time that the act was " strictly within the 
 jurisdiction of the legislature of the province." ^ The govern- 
 ment of Canada subsequently disallowed the acts of Manitoba 
 to incorporate the Manitoba Tramway Co., to incorporate the 
 Emerson and North-Western R. R. Co., and to encourage the 
 building of railways in Manitoba, on the ground also, that 
 they were " in conflict with the settled policy of the Dominion 
 government in regard to the direction and limits of railway 
 ponstruction in the territories of the Dominion." To this policy 
 the government of the Dominion strictly adhered for years. 
 In 1886 they disallowed the charters granted to the Manitoba 
 Central Railway Company, and to the Rock Lake, Souris 
 Valley & Brandon R. R. Co., and in 1887 those to the Winnipeg 
 
 iCan. Sess. P., 1882, No. 149a. Hans., 876-926. 
 2 Can. Sess. P., 1882, No. 166.
 
 DISALLOWANCE OF PROVINCIAL ACTS. 147 
 
 and Southern Railway Company and the Red River Valley R.R.^ 
 In 188.3 the acts passed by the legislature of British Columbia 
 " to incorporate the Fraser River Railway Company," and " to 
 incorporate the New Westminster Southern Railway Company," 
 were disallowed for the same reasons.^ 
 
 Much irritation was felt in Manitoba on account of this 
 policy, and the difficulty at last assumed a serious aspect 
 when the government of the province persisted in an attitude 
 of resistance to the power of disallowance exercised under 
 these circumstances by the Dominion government. Finally 
 in order to settle a grave difficulty, the Dominion government 
 came to an arrangement with the Canadian Pacific Railway 
 Company, under wliich they relinquished for certain consider- 
 ations tlie exclusive privilege contained in their original 
 contract as stated above.^ 
 
 'Can. Sess. P. 1886, No. 81 ; Can. Gazette, 1887. 
 
 ^Hodgins, i., 819, 820. 
 
 'See 51 Vict., c. 32, "An act respecting a certain agreement between the 
 government of Canada and the Canadian Pacific Railway Companj'." Also 
 speech of Sir Charles Tuppcr, minister of finance, Can. Hans. (1888), 1332. 
 This settled the dispute as far as the power of disallowance in this case was 
 concerned, but subsequently the matter in another form came before the 
 Kupreme court of Canada in accordance with the sections of the Canada 
 Railway Act, 51 Vict., c. 29, providing for a reference to the court for its 
 opinion upon any question wliich, in the opinion of the railway committee of 
 the Canadian Jirivy council, is a question of law. Under chap. 5 of the 
 statutes of Manitoba, passed in 1888, the railway coniniissioner of that 
 province commenced the construction of the Portage extension of the Red 
 River Valley Railway (within the province), and it was found necessary to 
 make application to the railway committee of the privy council of Canada 
 (unfler sec. 173 of the Railwaj' Act of 1888) for the approval of the place at 
 which, and tiic mode hy wliich the extension in question should cross the 
 Pembina Mountain branch of the Canadian Pacific Railway Co. Tin rciipoii 
 the latter company intervened and raised a prelirniMary legal objection that 
 the railway commisHioncr of Manitoba had no authority to construct a lino 
 crossing the Cana<lian Pacific Railway in consequence of the illegality of the 
 statute. Mr. Edward Blake argued on behalf of the company before the 
 supreme court that the parliament of Cana<la had, years ago (see 46 Vict., c. 
 24, H. 6, and liev. Stat., c. 109, h. 121) (efficiently e-xercised its declaratory and 
 sovereign power (see R. N. A. Act, 1867, s. 92, sulis. 10 c. ) with reference to 
 railway works by the declaration that a work crossing the Canadian Pacific
 
 148 LEGISLATIVE JURISDICTION. 
 
 These cases show the large power assumed by the Dominion 
 government under the law giving it the right of disallowing 
 provincial enactments. The best authorities concur in the 
 wisdom of interfering with provincial legislation only in cases 
 where there is a clear invasion of Dominion jurisdiction, or 
 where the vital interests of Canada as a whole imperatively 
 call for such interference. The powers and responsibilities of 
 the general government in this matter have been well set 
 forth by judicial authorities : " There is no doubt of the pre- 
 rogative right of the Crown to veto any provincial act, and to 
 apply it even to a law over which the provincial legislature 
 has complete jurisdiction. But it is precisely on account of 
 its extraordinary and exceptional character that the exercise 
 of this prerogative will always be a delicate matter. It will 
 always be very difficult for the federal government to substi- 
 tute its opinion instead of that of the legislative assemblies in 
 regard to matters within their jurisdiction, without exposing 
 itself to be reproached with threatening the independence of 
 the provinces." The injurious consequences that may result 
 in case a province re-enacts a law, are manifest : " probably 
 grave complications would follow." And in any case, " under 
 our system of government, the disallowing of statutes passed 
 by a local legislature after due deliberation, asserting a right 
 to exercise powers which they claim to possess under the 
 
 Railway is a work for the general advantage ; that by that declaration any 
 such work has been removed from the provincial and assumed to be within 
 the Dominion cognizance ; that this work before the court was specifically 
 such a work and therefore no other conclusion could be reached than that the 
 provincial legislature was utterly incompetent to authorize the construction of 
 such a work. The question submitted by tlie railway committee for the 
 supreme court of Canada (see sec. 19 of the R. R. Act of 1888) was to the 
 effect, whether the Manitoba statute in view of the provisions of c. 109 Rev. 
 Stat, of Canada, particularly sec. 121, and of the R. R. Act of 1888, particu- 
 larly ss. 306 and 307, was valid and effectual so as to confer authority on the 
 railway commissioner to construct the railway in question. The supreme 
 court unanimously declared its opinion that the Manitoba act is valid, and the 
 railway constructed under it entitled to cross the C. P. R. subject to the 
 approval of the railway committee, as provided by the Railway Act. See 
 report of argument before the supreme court on this question, Ottawa, 1888, 
 Legal News (1889), vol. xii., 4, 5.
 
 THE JUDICIARY. 149 
 
 British North America Act, will always be considered a harsh 
 exercise of authority, unless in cases of great and manifest 
 necessity, or where the act is so clearly beyond the powers of 
 the local legislature that the propriety of interfering would at 
 once be recognized."^ 
 
 V. Position of the Judiciary.— Before closing this review of 
 the constitution of Canada, it is necessary to refer briefly to 
 the position of the judiciary, which occupies a peculiarly 
 important status in a country possessing a written constitu- 
 tion which must necessarily require to be interpreted from 
 time to time by accepted authorities.^ 
 
 The administration of justice in the provinces, including the 
 constitution, maintenance, and organization of provincial 
 courts, both of civil and criminal jurisdiction, and including 
 procedure in civil matters in these courts, forms a class of 
 
 >Can. Sup. C. R., ii., Richards, C. J., 96; Fournier, J., 131, The princi- 
 ples laid down in the remarks of tlie learned judges, cited above, were 
 emphatically urged in the House of Connnons in the debate of 1889 on the act 
 passed by the legislature of Quebec respecting the settlement of the Jesuits' 
 estates, vvhifli, some contended, ought to have been disallowed as beyond the 
 power of the legislature, for reasons set forth in a resolution which was 
 negatived by 188 to 13. The Dominion government had previously advised 
 the governor-general that the act dealt with a fiscal matter within the exclu- 
 sive jurisdiction of the Quebec legislature, and that accordingly it should be 
 left to its operation. Can. Hans. (1889), 811-910 ; Todd's Pari. Gov. in B. C, 
 2nd ed., 484. It is now generally admitted that it is advisable to leave the 
 courts, whenever practicable, to deal with all questions involving matters of 
 constitutional controversy, and to reserve the power of disallowance for 
 unconstitutifinal legislation — on which there is no doubt — or for cases involving 
 the iMjace, unity or national obligations of the confederation. 
 
 'The supicme court of the United States is considered in the Federalist, and 
 tlif! liistory of the Amciican constitution proves the truth of the words, "a 
 })nlwark of a limited constitution against legislative encroachments." 1'he 
 meaning of the word " limited "' is explained by Alexander Hamilton : "By a 
 limited constitution, I uiidiTHland one which contains cei'tain specified excep- 
 tions to legislative autliority, such, for instance, as that it sliall ])ass no bill of 
 attainder, no ''X jiont facto law, and the l?ke limitations of this kind can bo 
 preserved in jjractiee in no other wa}' than through the medium of the courts 
 of justice, whose dut\' it must be to declare all acta contrary to the manifest 
 tenor of the constitution void ; without this, all the reservation of ])articular 
 rights and privileges would amount to nothing." Federalist, Ixxviii.
 
 150 LEGISLATIVE JURISDICTION'. 
 
 subjects placed by the fundamental law^ within the exclusive 
 control of the provincial legislatures. In the province of 
 Quebec the French law derived from the Goutume de Paris, 
 has come down from the days of the French regime, and 
 prevails in all civil matters, and the civil laws of that terri- 
 torial division, including those of procedure, have been duly 
 codified as the " Civil Code of Lower Canada." ^ 
 
 In the other provinces, the sources of law are the common 
 law of England, brought naturally into the country by the 
 English settlers, and the statutory laws passed from time to 
 time by the legislative authorities. The criminal law is uni- 
 form throughout the Dominion, and ig under the jurisdiction 
 of the parliament of Canada, except so far as relates to the 
 constitution of the courts.^ The governor-general-in-council 
 appoints the judges of the superior, district and county courts 
 throughout the Dominion, except those of the courts of pro- 
 bate in Nova Scotia and New Brunswick.^ The judges in 
 Ontario, Quebec, Nova Scotia, New Brunswick and Prince 
 Edward Island ^ continue to be selected from the bars of their 
 respective provinces. 
 
 The independence of the judiciary has been for very many 
 years recognized in Canada, as one of the fundamental princi- 
 ples necessary to the conservation of public liberty. The 
 judges are not dependent on the mere will of the executive in 
 any essential respect, nor on the caprice of the people of a 
 
 ^B. N. A. Act, 1867, subs. 14, s. 92. 
 
 *See 29 Vict., c. 41, "An Act respecting the Civil Code of Lower Canada." 
 (Sup. vol. to Rev. Stat, of Canada, 1886.) Also Sharp's Civil Code of L. C, 
 in 2 vols., 1889. 
 
 3B. N. A. Act, 1867, sub-s. 27, s. 91. 
 
 * Ih. 96, justices of the peace, police and stipendiary magistrates are ap- 
 pointed in each province by the lieutenant-goveinor-in-council. 
 
 */6. 97. "Until the laws relative to property and civil rights in Ontario, 
 Nova Scotia and New Brunswick, and the procedure of the courts in those 
 provinces are made uniform, the judges of the courts of those provinces 
 appointed by the governor-general shall be selected from the respective bars 
 of those provinces." 98. "The judges of the courts of Quebec shall be 
 selected from the bar of that province."
 
 THE JUDICIARY. 151 
 
 province, for their nomination and retention in office, as in 
 many of the states of the American republic. Their tenure is 
 as assured in Canada as in England, and their salaries are not 
 voted annually, but are charged permanently on the civil list. 
 In case it is necessaiy to provide a salary, or increase of 
 salary, for a judge, the proper course is for the government to 
 prdbeed by bill.^ The judges of the superior courts hold office 
 during good behaviour, and can only be removed by the gov- 
 ernor-general on address of the Senate and House of Commons." 
 In impeaching a judge for misconduct in office, the House of 
 Commons discharges one of the most delicate functions en- 
 trusted to it by law. In such a matter it cannot proceed with 
 too great caution and deliberation. Whenever charges of a 
 serious character have been brought against a judge, and re- 
 sponsible persons have declared themselves prepared to support 
 such charges, it has been the practice to appoint a select 
 committee, to whom all the papers can be referred for a 
 thorough investigation. Since 1867 only two committees of 
 this character have been formally appointed, but in neither 
 case did the infjuiry result in the least degree to the discredit 
 of the judge whose character was impugned.^ It is usual to 
 have all the documents in the case printed in the first instance 
 without delay, so that the House and the persons immediately 
 
 'See 31 Vict., c. 33. Rev. Stat, of Can., c. 138. B. N. A. Act, 1867, s. 
 100. For Rhort account of the constitution of the courts of Canada, see Bouri- 
 not's " How Canada is Governed,' pp. 128, 170. 
 
 *B. N. A. Act, 1867, s. 99. Tliis section does not apply to county court 
 juilges, wliose removal for sndicicnt cause is provided for by 45 Vict., c. 12 
 (Rev. Stat., c. 138, s. 2). It is, liowcvor, under Britisli practice, competent 
 for the House to address the governor-general for the removal of such judicial 
 officers, and tlio procedure in parhamcnt slundd be as in the case of the 
 superior court judges. See case of W. McDermott, asst. barrister of Kerry, 
 l-)0 E. Hans. (3), 1587, 1588 ; 90 Lords J., 221, 237, 239, 244, 251, 261. Also 
 Mr. Kenrick's case, 13 Pari. Deb. N. S., H38, 1425, 14.33; 14 //; , 500-502, 
 511, 070-678. Also remarks of Sir J. A. Macdonald and ^Ir. iJiake, April 9, 
 1883, in tiie Both well case, Can. Hans. 
 
 •Case of Judge Lafontaine, Can. Com. J. (1867-8), 297, 344, 398 ; //>. (1869), 
 135, 247. Of Judge Loranger, //>. (1877), 20, 25, 36, 132, 141, 258. A com- 
 mittee was asked for in 1882 in tlie case of (.'hief Justice Wood, of Manitoba, 
 but never appointed.
 
 152 LEGISLATIVE JURISDICTION. 
 
 interested may have due cognizance of the nature of the 
 cliarges against the judge.^ Copies of the charges should be 
 communicated as soon as possible to the judge in question, 
 when they are stated in a petition or made by a member in 
 his place.^ Witnesses should be examined on oath in all such 
 cases. ^ All the weight of authority in Canada, as in England, 
 goes to show that the House should only entertain chai-ges, 
 which if proved, would justify the removal of the judge from 
 the bench. It will be for the House, and especially for those 
 responsible for the administration of justice, to consider 
 whether the allegations are of such a nature, and supported by 
 such authority, as demand an investigation at their hands.^ 
 The proper and most convenient course is for the persons who 
 feel called upon to attack the character of a judge to proceed 
 by petition, in which all the allegations are specifically stated, 
 so that the judge may have full opportunity of answering the 
 indictment thus presented against him.^ But the action of 
 parliament may originate in other ways, if the public interest 
 demand it, and there is no objection to a member formulating 
 charges on his own responsibility as a member of the legislature 
 having a grave duty to discharge.^ No petition impugning 
 
 iCan. Com. J. (1867-8), 400; lb. (1877), 25, 132; lb. (1882), 192. Todd. 
 Pari. Govt, in England, ii., 876. 
 
 2 Mr. Justice Kenrick's case, E. Com. J., vol. 80, pp. 582, 607; Todd, ii., 865. 
 
 ^Can. Com. J. (1877), 36. At the time of the previous case, select com- 
 mittees had no power to administer oaths to witnesses. Such power was 
 given to the Houses in 1876. 
 
 * See memorable cases of Baron Abinger and Sir Fitzroy Kelly, cited by 
 Todd, ii. 870, 871. In 1883 the Canadian House refused a motion to inquire 
 into the conduct of a judge in the discharge of his duties in connection with 
 a matter sub jvdice. See remarks of Sir J. A. Macdonald in Bothwell election 
 case, April 9, Can. Hans. In 1885, a senator who presented a petition in the 
 senate asking for an investigation into certain charges against a judge, withdrew 
 it on a .statement from the minister of justice that there was nothing in the 
 charges alleged. Sen. Deb. (1885), 108. 
 
 5 Sir J. A. Macdonald, April 9, 1883, Can. Hans., Bothwell case. Cases of 
 Judge Fox and Judge Kenrick, cited in Todd, ii. , 862, 865. 
 
 «Case of Baron McLeland, 74 E. Com. J., 493; 11 Pari. Deb., 850-854; 
 Kenrick's Case, 80 E. Com. J., 607.
 
 THE JUDICIARY. 153 
 
 the conduct of a judge should be permitted to lie on the table, 
 unless it is taken up within a reasonable time and proceeded 
 Avith regularly.^ The constitutional usage of the parent state 
 also requires that in any address asking for the removal of a 
 judge, " the acts of misconduct which have occasioned the adop- 
 tion thereof ought to be recapitulated, in order to enable the 
 sovereign to exercise a constitutional discretion in acting upon 
 the advice of parliament." In cases where this very proper 
 rule has not been followed, the Crown has refused to give 
 effect to the address, though passed by a colony enjoying 
 responsible government, because "in dismissing a judge, in 
 compliance with addresses from a local legislature and in 
 conformity with law, the Queen is not performing a mere 
 ministerial act, but adopting a grave responsibility, which 
 her majesty cannot be advised to incur without satisfactory 
 evidence that the dismissal is proper."^ 
 
 ^Tofld, ii., 873. 
 
 » Todd, ii. , 904. Corresp. relative to Judge Boothby, English Com. P., 1862, 
 vol. xxxvii., 180-184.
 
 CHAPTER III. 
 
 GENERAL OBSERVATIONS ON THE PRACTICAL OPERATION 
 OF PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 I. Prefatorj', p. 154. — II. Constitutional Relations between Great Britain and 
 Canada, p. 155. — III. The Written and Unwritten Law of the Constitution, 
 p. 159. — IV. Constitution of the Executive Government of the Dominion, 
 p. 162. — V. Formation of a Ministry, p. 165. — VI. Responsibility of Min- 
 isters for Administration and Legislation, p. 171. — VII. Orders-in-Council, 
 p. 181. — VIII. Procedure on Resignation of Ministers, p. 183. ^IX. The 
 Law and Usage of Parliament, p. 186. Conclusion, p. 188. 
 
 I. Prefatory.— In the first chapter of this book the author 
 has endeavoured to give a concise sketch of the various phases 
 of the constitutional development of the provinces of British 
 North America, from the time Canada became a possession of 
 England and exchanged the absolutism and centralization of 
 the French regime for the representative institutions of 
 England. The liberal system of local self-government which 
 Canada now enjoys, as a portion of the British Empire, is the 
 result of the struggles of the statesmen and people of Canada 
 since the close of the last century, when all the provinces 
 were given the right to hold representative assemblies. For 
 more than half a century after the concession of representative 
 institutions, the political expansion of the provinces was more 
 or less retarded by the absence of the great governing prin- 
 ciple of the English system, which has developed itself slowly 
 since the revolution of 1688 — that great principle which 
 makes the ministry or government of the day responsible 
 both to the sovereign and the legislature for all matters of 
 administration and legislation, and allows it to continue in 
 office only while it retains the approval of the people's house. 
 From 1840 to 1866, however, this guiding principle of parlia- 
 mentary institutions was acknowledged in the largest sense 
 by the imperial government and obtained its fullest expression 
 
 154
 
 CONSTITUTIONAL RELATIONS. 155 
 
 in the passage of the measure providing for the federation of 
 the provinces, which has enabled the different communities, 
 known under the political title of the " Dominion of Canada," 
 to assume many of the functions of an independent nationality; 
 and extend their legislative and administrative authority over 
 a region of vast territorial extent.^ 
 
 II. Constitutional Relations between Great Britain and Canada.— 
 But while Canada lias been able, through the eflbrts of her 
 statesmen and people, to attain so large a measure of legisla- 
 tive independence in all matters of internal concern, there still 
 exi.st between her and the parent state those legal and 
 constitutional relations which are compatible with the respec- 
 tive positions of the sovereign authority of the empire, and of 
 a dependency. At the head of the executive power of the 
 Dominion is the king of England, guided and advised by a 
 privy council, whose history is co-existent with that of the 
 regal authority itself. Through this privy council, of which 
 the cabinet is a committee, the sovereign exercises that 
 control over Canada and every other colonial dependency, 
 which is necessary for the preservation of the unity of the 
 Empire and the observance of the obligations that rest upon 
 it as a whole. Every act of the parliament of Canada is 
 subject to the review of the king in council, and may be 
 carried from the Canadian courts under certain lefral liinita- 
 tions to tlie judicial committee of the privy council, one of the 
 committees which still represent the judicial powers of the 
 ancient privy council of England. The parliament of Great 
 Britain — a sovereign body limited by none of the constitutional 
 or legal checks which restrict the legislative power of the 
 United States congress — can still, and docs actuall}^ legislate 
 from time to time for Canada and the other colonies of the 
 Empire. From a purely legal standpoint, the legislative 
 authority of this great assembly has no limitation ami might 
 be carried so far as not merely to restrain any of the legal 
 powers of the Dominion as set forth in the charter of its 
 constitutional action, known as the British North America 
 
 'See Bourinot's Canada under British Rule, cc. vi , vii.
 
 156 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 Act of 1867, but even to repeal the provisions of that imperial 
 statute in whole or in part. 
 
 But while the sovereign of Great Britain, acting with the 
 advice of the privy council and of the great legislative council 
 of the realm, is legally the paramount authority in Canada 
 as in all other portions of the Empire, his prerogatives are 
 practically restrained within certain well understood limits, so 
 far as concerns those countries to which have been extended 
 legislative institutions and a very liberal system of local self- 
 government.^ In any review of the legislative acts of the 
 Dominion, the government of England has for many years 
 past fully recognized those principles of self-government 
 which form the basis of the political freedom of Canada. No 
 act of the parliament of the Dominion can now be disallowed 
 except it is in direct conflict with imperial treaties to which 
 tlie pledge of England has been solemnly given, or with a 
 statute of the imperial legislature which applies directly to 
 the dependency. The imperial parliament may legislate in 
 matters immediately affecting Canada,^ but it is understood 
 that it only does so as a rule in response to addresses of her 
 people through their own parliament, in order to give validity 
 to the acts of the latter in cases where the British North 
 America Act of 1867 is silent, or has to be supplemented by 
 additional imperial legislation. 
 
 That act itself was not a voluntary effort of imperial auth- 
 ority, but owes its origin to the solemn expression of the 
 desire of the several legislatures of the provinces, as shown by 
 addresses to the Crown, asking for an extension of their 
 political privileges.^ Within the defined territorial limits of 
 
 ^"It is therefore a fundamental maxim of parliamentary law that it is 
 unconstitutional for the imperial parliament to legislate for the domestic 
 affairs of a colony which has a legislature of its own." — Hearn, Government of 
 England, 598, appendix, Art. on "The Colonies and the Mother Country." 
 
 ^"The general rule is that no act of the imperial parliament binds the 
 colonies unless an intention so to bind them appears either by express words 
 or by necessary implication. " — Hearn, 596. 
 
 'See argument of Hon. Edward Blake before the judicial committee in case 
 of St. Catharines Milling and Lumber Co. v. The Queen, published in pamphlet 
 form at Toronto in 1888.
 
 ■ COXbTlTUTIONAL RELATIONS. 157 
 
 those powers which have been granted by the imperial parlia- 
 ment to the Dominion and the provinces, each legislative 
 authority can exercise powers as plenary and ample as those 
 of the imperial parliament itself acting within the sphere of 
 its extended legislative authorit}^^ Between the parent state 
 and its Canadian dependency there is even now a loose system 
 of federation under which each governmental authority exer- 
 cises certain administrative and legislative functions within 
 its own constitutional liniitc, while the central authority 
 controls all the members of the federation so as to give that 
 measure of unity and strength without which the Empire 
 could not keep together. Each government acts within the 
 limits of its defined legislative authority with respect to those 
 matters which are of purely local concern, and it is only when 
 the interests of the Empire are in direct antagonism with the 
 privileges extended to the colonial dependency, the sovereign 
 authority sliould prevail. This sovereign authority can never 
 be exei'cised arbitrarily, but should be the result of discussion 
 and deliberation, so that the interests of the parent state and 
 the dependency may be brought as far as possible into har- 
 mony with one another. The written and unwritten law 
 provides methods for agreement or compromise between the 
 authorities of the parent state and its dependencies. In mat- 
 ters of law the privy council is guided by various rules which 
 
 ' See Hodge V. The Queen, supra, 101. With respect to the subjects over 
 which the parliament and legi.slatures of Canada have legislative control by 
 tlie 15ritisli North America Act of 1867, " they must be considered to liavc tiie 
 plenary powers of tlie imperial government [to quote the words of tiie judicial 
 committee], subject only to such control as the imperial government may 
 exercise from time to time, and subject only to her Majesty's rigiit of dis- 
 allowance, which the Ij. N. A. Act reserves to her and which no one doubts 
 \vill l>e exercised with full regard to constitutional principles and in the l)est 
 interests of the country, when exercised at all." See correspondence on 
 Cojiyriglit Act (R«n-. Stat, of Canada, c. G2), C^an. Sess. P. 1890, No. 35, p. 10. 
 For respective powers of Impci'ial and Canadian (ioverimicnts, see report of 
 committee of privy council of Canada relating to appeals in criminal cases to 
 tlie judicial committee of the privy council of Kngland, Can. Sess. P. 1889, 
 No. 77. Bourinot's Fed. Gov. in Canada, Joinis Hopkins U. S. , 38-44. Also 
 speech of Sir John Tiiompson, minister of justice, Can. Hans., 1889. March 
 27. And copyright debate, 1891, Sept. 4.
 
 158 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 wisely restrict appeals from the dependency within certain 
 definite limits. In matters of legislation and administration, 
 on which there may be a variance of opinion between the 
 Canadian and the English government, the means of com- 
 munication is the governor-general and the secretary of state 
 for the colonies. The former as an imperial officer responsible 
 to the Crown for the performance of his high functions, as 
 the representative of the sovereign in the dependency, will 
 lay before the imperial government the opinions and sugges- 
 tions of his advisers on every question which affects the 
 interests of Canada, and requires much deliberation in order 
 to arrive at a fair and satisfactory adjustment.^ 
 
 It may be contended that there is no absolute written law 
 to govern these relations — to restrain the imperial government 
 in its consideration of Canadian questions — to give a positive 
 legal independence to the Canadian government in any respect 
 whatever ; but in answer to this purely arbitrary contention 
 it may be argued with obvious truth that, when the imperial 
 parliament gave the Canadians a complete system of local 
 government and the right to legislate on certain subjects set 
 forth in the fundamental law of the dependency (the British 
 North America Act), it gave them full jurisdiction over all 
 such matters, and constitutionally withdrew from all direct 
 interference in the local concerns of the colony. More than 
 that, in addition to the obvious intent and purpose of the 
 written constitution of the Dominion, there are certain con- 
 ventions and understandings which appear in the instructions 
 laid down by the imperial authorities themselves from time to 
 time for the self-government of these colonial communities 
 since the concession of responsible government — conventions 
 and understandings which have as much force as any written 
 statute, and which practically control the relations between 
 England and Canada so as to give the latter the unrestricted 
 direction of every local matter, and the right of legislating on 
 
 ^ " The matter is fought out between the colonial government and the 
 colonial office," Hearn, 602. See correspondence on copyrights and appeals in 
 criminal cases, siipra, 1.57, «.
 
 THE WRITTEN AND UNWRITTEN LAW. 159 
 
 every question sanctioned by the terms of the constitutional 
 law. 
 
 The British North America Act of 1867, then, is a charter of 
 constitutional freedom, recognizing in a practically unrestricted 
 sense the right of Canada to govern herself, subject only to 
 tlie general control of the sovereign authority of the Empire. 
 This act establishes a federal system which gives control over 
 Dominion objects to the central executive and legislative 
 authority, and permits the governments of the provinces to 
 exercise certain defined municipal and local powers within 
 provincial limits, compatible with the existence of the wide 
 national authority entrusted to the federal government. 
 Within its local statutory sphere each provincial entity can 
 exercise powers as plenary and absolute as the Dominion itself 
 within the Made area of its legislative jurisdiction. For the 
 settlement of questions of doubtful jurisdiction the constitu- 
 tion provides a remedy in a I'eference to the courts, on whose 
 decision must ahva^\s largely rest the security of a federal 
 system,! and to a minor degree in the power possessed by the 
 Dominion government of disallowing provincial acts — a power, 
 however, as it is shown elsewhere, only to be exercised in cases 
 of grave emergency or of positive conflict with the law and 
 the constitution.^ 
 
 III. The Written and Unwritten Law of the Constitution.— 
 If we study the constitution of Canada we find that its prin- 
 ciples rest both on the written and the unwritten law. In 
 the British North America Act we have the written law, 
 which nuist direct and limit the legislative functions of the 
 parliament and the legislatures of the Dominion. While this 
 act provifles for executive authority and for a division of 
 legislative powers between the Dominion and the provinces 
 — as we have seen in the first chapter of this work — it does 
 not attempt to give legal efliect or definition to the ilexible 
 fiystem of prr'C(;dents, conventions and understandings which 
 
 ' See Dicey's I.aw of the Constitution, ?,r<\ (•(!., 16.3-168. 
 
 'Sec Boiirinot'a Fed. Tiov. in Canada, oS Oa. Also, supra, 148.
 
 160 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 SO largely direct that system of administration and govern- 
 ment which has grown up in the course of two centuries in 
 England, and wdiich has been gradually introduced into Canada 
 during the past fifty years, and now forms the guiding prin- 
 ciples of parliamentary government in the two countries.^ 
 
 No doubt, strictly speaking, these conventions are not law 
 in a technical sense, and a distinction must be drawn be- 
 tween the law of the constitution, that is, the British North 
 America Act, and the understandings of the constitution. If 
 these are of force, it is mainly because they have in the course 
 of time received the sanction of custom — of an understanding 
 on the part of the people that they are necessary to the satis- 
 factory operation of parliamentary government and to the 
 security of the political privileges which Canada now possesses 
 as a self-governing country. If a court were called upon to- 
 morrow to consider the legality of an act of the Dominion 
 parliament, granting large sums of public money for certain 
 public purposes, on the ground that it had not received the 
 recommendation of tlie Crown at its initiation, in pursuance of 
 a provision of the fundamental law, the judge could properly 
 take cognizance of the objection and adjudicate thereon. If 
 parliament were to exercise its legislative authority beyond 
 the legal term of five years to which it is limited in express 
 terms, its acts after the expiration of its legal existence might 
 be called into question in the courts of Canada. On the other 
 hand, if a ministry should refuse to resign wdien it is clearly 
 shown that it has no majority in the popular body of the 
 legislature, and can no longer direct and control the legislation 
 of the country, the courts could not be called upon to take 
 
 ^ With reference to these conventions and understandings, see Freeman's 
 Growth of the English Constitution ; Dicey's Law of the Constitution, 3rd ed. ; 
 Bourinot's Fed. Gov. in Canada. Prof. Dicey, in his excellent exposition of 
 this subject, says (p. 24) that constitutional law "consists of two elements. 
 The one element, which I have called ' the law of the constitution,' is a body 
 of undoubted law ; the other element — which I have called ' the conventions 
 of the constitution,' consists of maxims or practices, which, though they regu- 
 late the ordinary conduct of the Crown and ministers and of others under the 
 constitution, are not, in strictness, laws at all."
 
 THE WRITTEN AND UNWRITTEN LAW. 161 
 
 cognizance of the fact by any legal act of theirs, however 
 excited public opinion might be on account of so flagrant a 
 violation of generally admitted conventions of the constitu- 
 tion. Parliament, however, in the practical operation of the 
 constitution, would have a remedy in its own hands — it could 
 refuse supply to the ministry, which would eventually find 
 itself unable to meet public expenditures except in the few 
 instances where there would be statutory authority for 
 permanent grants. The courts might be called upon, soon or 
 late, to stop the levy of illegal taxes or otherwise refuse legal 
 sanction to certain acts arising from a violation of those rules" 
 and maxims which govern the operation of parliamentary 
 institutions.^ But it would be only under such extraordinary 
 circumstances — circumstances practically of a revolutionary 
 character — that the courts could be called upon to interpose 
 in the working of the constitution. It is mainly in the good 
 sense and the political instincts of the people at large that 
 these conventions find that sanction which gives them a force 
 akin to that given to the principles of the common law. A 
 ministry that violates these rules and conventions, which have 
 been long approved by the test of experience as necessary for 
 good and effective government, must soon or late find itself 
 subject to the verdict of the people under the written law 
 which dissolves parliament every five years, and gives the 
 legally qualified electors an opportunity of condemning or 
 approving the acts of the men who have controlled the work 
 of administration and legislation in the country. The strength 
 of the Canadian system of government is the fact that it not 
 
 'See Dicey, c. xv., on tlie conventions of the constitution, in wiiicli lie shows 
 th.at " the breach of a purely conventional rule, of a maxim utterly unknown, 
 and indocfl opposed to the theory of Knglish law, ultimately entails upon 
 those who break it direct conflict witii the undoubted law of the land. We 
 have therefore a right to assert that the force which in the last resort compels 
 obedience to constitutional morality is nothing else than the power of the law 
 itself. The conventions of the constitution are not law, but in so far as they 
 reallv pos.sess binding force they derive their sanction from the fact tiiat 
 whoever Vjreaks them must finally break the law an<l incur the penalties of a 
 law-breaker." 
 11
 
 162 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 only rests on the written law of the constitution, but possesses 
 that flexibility which accompanies conventions and under- 
 standings. 
 
 IV. Constitution of the Executive Government of the Dominion.— 
 In arranging the details of the federal system of Canada, 
 the framers of the British North America Act had before 
 them the experience of that remarkable instrument of federal 
 government — the constitution of the United States, — and 
 endeavoured to perfect their own system by avoiding what 
 they considered to be inherent defects in the institutions of 
 their neighbours.^ But while of necessity they were forced to 
 turn to the political system of the United States for guidance 
 in the construction of a federal system, they adhered steadily 
 to those principles which give strength to that system of 
 English parliamentary government, and which their own ex- 
 perience for forty years had shown them to be best adapted 
 to the conditions of the confederation. But while the resolu- 
 tions of the Quebec conference gave expression emphatically 
 to the desire of the Canadian people " to follow the model of 
 the British constitution so far as our circumstances will 
 permit," the written law or British North America Act sets 
 forth only in general terms in its enacting clauses the consti- 
 tution of the executive authority and of the legislative bodies, 
 where are reproduced essential features of the English system. 
 While in the character of the executive and in the bicameral 
 form of the general legislature we see an imitation of English 
 institutions,- we detect actually a tendency to depart from the 
 English model in the provinces where the upper chamber 
 in several instances has already been abolished.^ In this 
 respect the Dominion is less English than the United 
 States, where the congress of the federal union and all 
 
 ^ Supra, m,%\. — 
 
 2 " The true merit of the bicameral system is that by dividing a power that 
 would otherwise have been beyond control it secures an essential guarantee 
 for freedom." — Hearn, 553. See Guizot, History of Representative Govern- 
 ment, 443 ; Mill, Representative Government, 233. 
 
 ' See snpra, 79.
 
 EXECUTIVE GOVERNMENT OF THE DOMINION. 163 
 
 the state legislatures have rigidly adhered to two houses. 
 When we come to consider the constitution of the execu- 
 tive authority in the Dominion and in the provinces we 
 see that conventions and understandings mainly govern 
 the methods of government throughout Canada. Nowhere 
 do we find formally set forth in the fundamental law of 
 Canada the rules and maxims which govern the cabinet or 
 ministry or government, as the advisers of the governor- 
 general or of the lieutenant-governors are indifferently called 
 in accordance with the custom which Canadians have of 
 reproducing old Englisli phi'ases. We find simply stated in 
 the British North America Act that there shall be a council 
 "to aid and advise tlie government of Canada," and the 
 persons who form tliat council are " chosen and summoned by 
 the governor-general and sworn in as privy councillors and 
 members thereof." An executive council or ministry in 
 Quebec and Ontario is composed of " such persons as the 
 lieutenant-governor from time to time thinks fit." The con- 
 stitution of tlie executive autliority in the provinces of Nova 
 Scotia and New Brunswick " continues as it existed at the 
 time of the union until altered under the authority of this 
 act."i 
 
 When the other provinces were added to the union, their 
 executive authority was defined in equally general terms.- 
 Nothing is said of tlie principles by which ministers come 
 into, retain and retire from oflice. All those principles can be 
 found only in the despatches of secretaries of state, in the 
 speeches of leading statesmen in England and Canada — 
 especially of those in the former country who have done 
 HO nnich to mould the system in the past — in tiie rules 
 and usages wliifh have generally received public sanction as 
 essential to the satisfactory operation of responsible gov- 
 ernment. At present this system of government exists in 
 all its force in the Dominion, and in the provinces as well. 
 
 »B. N. A. Act, 1867, »». 11, 12, 13, 64, 65, 66. See sw/wo, chapter i., ss. 7 
 and 9. 
 
 ^ Supra, 71 (P. E. iHlaml) ; 71 (Manitoba) ; 72 (British Columbia).
 
 164 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 Canada consequently presents the first instance of a feder- 
 ation of provinces working out in harmony with a written 
 system of federal law that great code of charters, usages 
 and understandings known as the English constitution. In 
 the Dominion, however, the only advisory body known to 
 the constitutional law is " the Queen's privy council for 
 Canada," which has its origin in the desire of the Canadian 
 people to adapt as far as possible to their own circumstances 
 the ancient institutions of the parent state.^ But all privy 
 councillors in Canada are not the advisers of the governor- 
 general for the time being. At the present time there are in 
 Canada fifty-seven gentlemen called privy councillors,^ but of 
 these only a small pro|)ortion, from twelve to sixteen, form the 
 actual government of Canada. Following English precedent, 
 the governor-general has also conferred the distinction cf privy 
 councillor upon several distinguished gentlemen who have 
 been speakers of the Senate and House of Commoi:>e. It may 
 be argued that the fact that these gentlemen have been sworn 
 to the privy council gives them a certain limited right to be 
 consulted by the representative of the sovereign in cases of a 
 political emergency or a national crisis, but this is a privilege 
 only to be exercised under very exceptional circumstances 
 while Canada enjoys responsible government.^ For instance, 
 
 ^See supra, 52. In Ireland there is also a privy council. In the federal 
 constitution of the commonwealth of Australia, the central authority is called 
 an executive council. In the early constitution of the state of Delaware, the 
 executive council associated with the governor was called a privy council, but 
 the name has long since disappeared. Bryce, The American Commonwealth, 
 ii., 10.3, 104. The title exists still in the little colonies of Bermuda and 
 Jamaica, where there is no responsible government. See Col. Office List for 1901. 
 
 2 See Col. Office List. (1900), 36. 
 
 3 " The king, moreover, is at liberty to summon whom he will to his privy 
 council ; and every privy councillor has in the eye of the law to confer with 
 the sovereign upon matters of public policy. The position and privileges of 
 cabinet ministers are in fact derived from their being sworn members of the 
 privy council. It is true that by the usages of the constitution cabinet 
 ministers are alone empowered to advise upon affairs of state, and that they 
 alone are ordinarily held responsible to their sovereign and to parliament for 
 the government of the country. Yet it is quite conceivable that circumstances
 
 FOBMATIOX OF A MINISTRY. 165 
 
 on the resignation or dissolution of a ministry the Crown has 
 a right to consult any privy councillor witli respect to the 
 formation of a new administration. As a rule of strict consti- 
 tutional practice, the sovereign should be guided only by the 
 advice of men immediately responsible to parliament and to 
 the Crown for the advice they tender. The members of the 
 cabinet or ministry which advises the governor -general must 
 be sworn of the privy council, and then called upon to hold 
 certain departmental offices of state.^ They are a committee 
 of the privy council, chosen by the governor-general to conduct 
 the administration of public affairs. They are strictly a 
 political committee, since it is necessary that they should be 
 members of the lerjislature. 
 
 V. Formation of a Ministry.— The political head of this cabinet 
 or ministry is known as the prime minister or premier — a title 
 totally unknown to the written law, and only recognized by 
 the conventions of the constitution.- It is he who is first 
 called upon by the governor-general to form the advisory body 
 knoA\Ti as the ministry. His death, dismissal or resignation 
 dissolves ip.Ho facto the ministry,^ and it is necessary 4;hat the 
 representative of the sovereign should choose anotlier puV)lic 
 man to fill his place and form a, new administration. The 
 premier is essentially the choice of the governor-general — a 
 choice described by a great English statesman as " the personal 
 act of the sovereign," since it is for her alone " to determine in 
 whom her confidence shall be placed."^ A retiring premier may, 
 in liis capacity of privy councilloi", suggest some statesman to 
 take liis place, but such advice cannot be given unsolicited, 
 but only at the recpiest of the Crown itself.'' But this 
 
 might arise wliicli would render it expedient for the king, in the interests of 
 the eonHtitution itself, to seek for aid and counsel apart from liis cabinet." 
 — Todd, i, 110. Also //y. 334. 
 
 'See Mii/irti, cliapter i., s. 7. 
 
 ^Hearn's Government of Kngland, 22.3. See Gladstone's Gleanings, i., 244. 
 
 * f ila«latone'8 fJleanings, i., 243. 
 
 *Sir Rolwrt Peel. S3 Eng. Hans. (3), 1(X>4. Also Lord Derby, 123 Ih. 1701 ; 
 Disraoli. 214 /h liM3. 
 'Toiid, i., JKi. :]-2H.
 
 166 PARLIAMENTARY GOVERNMENT IN CANADA, 
 
 personal choice of the representative of the sovereign has its 
 hmitations, since the governor-general nnist be guided by 
 existing political conditions. He must choose a man who is 
 able to form a ministry likely to possess the confidence of 
 parliament. If a ministry be defeated in parliament, it would 
 be his duty to call upon the most prominent member of the 
 j)arty which has beaten the administration to form a new 
 government. It is quite competent for the governor-general 
 to consult with some influential member of the -dominant 
 political party, or with a privy councillor,^ with the object of 
 eventually making such a choice of a prime minister as will 
 ensure what the Crown must always keep in view — a strong 
 and durable administration capable of carrying on the Queen's 
 government with efficiency and a due regard to those princi- 
 ples which the sovereign's representative thinks absolutely 
 essential to the interests of the dependency and the integrity 
 of the Empire. Once the statesman called upon by the Crown 
 has accepted the responsibility of premier, it is for him to 
 select the members of his cabinet and submit their names to 
 the governor-general. The premier, in short, is the choice of 
 the governor-general ; the members of the cabinet are prac- 
 tically the choice of the prime minister.^ The governor- 
 general may constitutionally intimate his desire that one or 
 
 ^ It is not essential that the person selected to bring about the construction 
 of a new cabinet should be the intended prime minister. See case of Lord 
 Moirain 1812; 17 E. Hans. (3), 464; Wellington Desp., 3d ser., vol. 3, pp. 
 636-642; lb. vol. 4, pp. 3, 17, 22. In 1851, after the resignation of the 
 Russell administration, the Duke of Wellington was consulted, 114 E. Hans. 
 (3), 10.33, 1075. In 1855, after the resignation of Lord Aberdeen, among 
 those consulted with respect to the formation of a new administration was the 
 Marquis of Lansdowne, 123 E. Hans. (3), 1702. Greville's Memoirs, Reign of 
 Queen Victoria, iii., 203, 207. In 1891, on the death of Sir John A. Mac- 
 donald, Sir John Thompson, minister of justice in the administration then 
 dissolved, was called upon by Lord Staulej-, governor-general of Canada, "for 
 his advice with respect to the steps which sliould be taken for the formation 
 of a new government." Can. Hans., 'June 16. It appears he was asked to 
 form an administration, but declined the responsibility. lb. June 2.3. 
 
 ^ When Sir Robert Peel took ofBce in 1834, the principle was for the first 
 time established that the premier should have the free choice of liis colleagues. 
 Peel, Mem. ii., 17, 27, 35.
 
 ^' FORMATION OF A MINISTRY. 167 
 
 more of the members of the previous administration in case of 
 a reconstructed ministry, or of the political party in power in 
 case of an entirely new cabinet, should remain in or enter 
 the government, but while that may be a matter of conver- 
 sation between himself and the premier, the Crown should 
 never so press its views as to hamper the chief minister in 
 his effort to form a strong administration.^ As the leader of 
 the government in parliament and a chief of the dominant 
 political party for the time being, he is in the best position to 
 select the materials out of which to construct a stronor ad- 
 ministration, and his freedom of choice should not be undulv 
 restrained by the representative of the sovereign, except in 
 cases where it is clear that imperial interests or the dignity or 
 the honour of the Crown might be impaired, conditions almost 
 impossible to arise in the formation of a ministry. The 
 premier is the constitutional medium of communication be- 
 tween the governor-general and the cabinet ; it is for him to 
 inform his excellency of the policy of the government on 
 every important public question, to acquaint him with all 
 proposed changes or resignations in the administration. It is 
 always allowable for a minister to communicate directly witli 
 the governor-general on matters of purely administrative or 
 departmental concern ; every minister is a privy councillor, 
 and as such is an adviser of the Crown, whom the governor- 
 general may consult if he thinks proper; but all matters of 
 ministerial action, all conclusions on questions of ministerial 
 ])olicy, can only be constitutionally communicated to him by 
 his prime minister. It is for the latter to keep the Crown in- 
 formed on eveiy matter of executive action.- It is not 
 necessary tliat he should be told of the discussions and argu- 
 ments that may take place in the cabinet while a question of 
 Ijolicy is under its consideration, Ijut the moment a conclusion 
 is reached the governor-general must be made aware of the 
 fact and liis approval formally asked. All minutes and orders 
 in council must be submitted for his approval or signature, 
 
 ' See TorroiiH, Life of Melbourne, i., 23.3. Colchester's Diary, iii., .Wl. 
 'Hcarn, 22.3.
 
 168 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 and the fullest information given him on every question in 
 which the Crown is interested and which may sooner or later 
 demand his official recognition as the constitutional head of 
 the executive. 
 
 When a new administration is formed — whether it is a 
 mere reconstruction of an old cabinet under a new premier, 
 or an entirely new government — there must be a thorough 
 understanding between the prime minister and his colleagues 
 on all questions of public policy which at the time are 
 demanding executive and legislative action. The cabinet 
 must be prepared to act as a unit on all questions that may 
 arise in the legislature or in connection with the administra- 
 tion of public affairs, and if there be a difference of opinion 
 between the premier and any of his colleagues, which is not 
 susceptible of compromise, the latter must resign and give 
 place to another minister who will act in harmony with the 
 head of the cabinet.^ While each minister is charged with 
 the administration of the ordinary affairs of his own depart- 
 ment, he must lay all questions involving principle or policy 
 before the whole cabinet, and obtain its sanction before 
 submitting it to the legislature. Once agreed to in this way, 
 the measure of one department becomes the measure of the 
 whole ministry, to be supported with its whole influence in 
 parliament. The ministry is responsible for the action of 
 every one of its members on every question of policy, and the 
 moment a minister brings up a measure and places it on the 
 government orders it is no longer his, but their own act 
 which they must use every effort to pass, or make up their 
 minds to drop in case it does not meet with the approval of 
 the legislature.^ The responsibility of the cabinet for each of 
 
 iHeam, 218. Todd, i., 403. 
 
 ^ " The essence of responsible government is that mutual bond of responsi- 
 bility one for another, wherein a government, acting by party, go together 
 and frame their measures in concert." Earl of Derby, 134 E. Hans. (3), 834. 
 " The government is not an administration of separate and distinct depart- 
 ments, but, as is well known, the measures of each department are submitted 
 to the consideration of the cabinet, and the cabinet is responsible in its 
 individual capacity for the policy of each department, though the execution of
 
 FORMATION OF A MINISTRY. 169 
 
 its membei'S must cease when a particular member of the 
 cabinet assumes to himself the blame of any acts and quits 
 the government in consequence ; and while by remaining in 
 office and acting together, all the members take upon them- 
 selves a retrospective responsibility for what any colleague 
 has done, it ceases if they disavow and disapprove of the 
 particular act upon the first occasion that it is publicly called 
 in question.^ If a government feels that it is compromised 
 by the misconduct of a colleague, he must be immediately 
 removed.2 
 
 If parliament should be sitting on the occasion of a 
 ministerial crisis, it is usual to adjourn from day to day, and 
 questions to be asked with respect to the progress made with 
 the formation or reconstruction of a ministry.^ The motion 
 to adjourn may be made, when necessarj^, by one of the ex- 
 ministers at tiie request of the person who has been entrusted 
 with the duty of forming a ministry.* In case of a recon- 
 struction it is customary for members of the former cabinet to 
 make explanations until arrangements are finally made.^ 
 Sometimes explanations have been given in the Canadian 
 Commons by a prominent member of the party, from which 
 a new government is to be formed, and in the absence of 
 ministers who have accepted office and sought re-election in 
 
 tin- measures may rest witli the departments themselves." Lord Palmerston, 
 Mirror of P., 1838, p. 2429. Also Mr. Disraeli, 111 E. Hans. (3), 1332. See 
 debate in Canadian Senate (1894, pp. 833-8), where action of a minister 
 differing from hi.s colleagues on a ministerial measure was deprecated. 
 
 'Lord Derby, l.jO K. Hans., 579-C70. A new ministry cannot be held 
 responsible for the inis(;on<luct of one of their members under a previous 
 administration. Todrl, ii., 481. Also Ih. i., 540-543. 
 
 *Heam, 198. 
 
 •For serioHH ministerial crisis of 1890, see Can. Com. Hans., Jim. 7-9. An 
 adjounimcnt was granted from day to day, lint wiien it was moved to adjourn 
 for five days, the motion was opposed as contrary to our constitutional 
 practice. See remark of Mr. Laurier, tiien lea<ler of the Opi)osi(ion, p. 31. 
 
 ♦123 E. Hans. (3), 1705, 1706: //;. 1717. 
 
 'Sir Adolphc Caron on crisis in and reconstruction of ]5o\vcll cabinet, Jan. 
 7-15, 1H96.
 
 170 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 accordance with the hiw.^ While a ministry is being recon- 
 structed, or ministers are seeking re-election, it is not usual 
 for the House to transact any business except what is purely 
 routine.^ In case there is difficulty in reconstructing a minis- 
 try, or in forming a new one, and public business is unduly 
 delayed, parliament has always a right to address the Crown 
 on the subject.^ But it is unconstitutional for parliament " to 
 question the motives of the sovereign for dismissing the 
 ministers who have lost his confidence," or to make him 
 " accountable to parliament for his conduct in changing his 
 advisers." * Parliament should hesitate to pass any resolutions 
 of censure or to take any steps which might appear like an 
 attempt to limit the exercise of the prerogative by refusing to 
 the new ministers and the Crown " a fair trial." ^ 
 
 A new ministry should take the earliest opportunity of 
 making explanations to the houses of any facts that they 
 ought to know with reference to its formation or its policy on 
 measures of public import ; but they have no right to ask for 
 more than a general exposition of the main principles on 
 which the government is formed.*^ Such explanations are as 
 proper in the case of a reconstructed as of an entirely new 
 ministry.^ The houses have a perfect right to be correctly 
 informed of the principles which have influenced public men 
 either to accept office under the Crown or to undertake the 
 scarcely less grave responsibilit}^ of leaving it. Whenever 
 changes take place during the recess or the sitting of parlia- 
 ment, it is usual for the leader of the government when called 
 upon in either house, to state the nature of the changes that 
 have taken place in the administration, or make other expla- 
 
 ^ Hon. L. H. Holton in 1873, on formation of the Mackenzie ministry, Ann. 
 Reg. (1878), 30. 
 
 "Mirrorof P. 1830, pp. 272, 337; 114 E. Hans, (3), 889; 119 7?>. 914; 184 
 Ih. 692, 697, 722 ; Can. Com. Han.s., Jan. 7-14, 1896. 
 3 136 E. Hans. (3), 1300 ; May, Const. Hist. 1., 462. 
 *Lord Selkirk, 9 Pari. Deh. 377 ; Lord Colchester's Diary, ii., 119. 
 sSirR Peel, Memoirs, ii., 67; 191 E. Hans. (3), 1728. 
 «Mr. Disraeli and Mr. Gladstone, 138 E. Hans. (3), 2039. 
 ^Mr. Disraeli, Mirror of P., 1840, pp. 24, 70.
 
 RESPONSIBILITY OF SIINISTERS. 171 
 
 nations that may be necessary in the public interests,^ but 
 such statements should not introduce any debatable matter, 
 but be confined to such facts as ought to be made known to 
 parliament. 
 
 When a ministry or any one of its members resigns, it is 
 quite proper to give the grounds of resignation. Individual 
 ministers may on occasions explain the reasons why they 
 have retired from a government. 
 
 In all cases when a statement is made of the formation, the 
 resignation, or the dismissal of a ministry, or of the retire- 
 ment of an individual minister, the assent of the governor- 
 general should be first obtained to make known any facts 
 which affect his position in the matter.^ 
 
 It is also autlioritatively laid down that, when a single 
 member of a cabinet retires, until he has made his own state- 
 ment in the house to which he belongs, the government 
 cannot explain the ground of his withdrawal to the other 
 house.3 
 
 VI. Responsibility of Ministers for Administration and Legis- 
 lation.— A government once formed is immediately responsible 
 for the work of administration and legislation. As a rule, 
 parliament should be reluctant to interfere with those details 
 of administration which properly and conveniently appertain 
 to a department, and it is only in cases where there is believed 
 to be some infraction of the law or of the constitution or some 
 violation of a public trust, that the house will interfere and 
 inquire closely into administrative matters.^ It must always 
 
 'Can. HiuiH. (1884), 28, 525 ; Ih. 1891, June 16; Sen. Deb. 1801, .Juno 17. 
 In 1889, tlie leader of tlie oppo.sition was not satisfied with the sliort explana- 
 tion given of changes in the ministry, and it was necessary to move tiie 
 adjouniment of the house, Hans. 24, 28. In 1891, a similar motion was made 
 for the express purpose of brimming on a discussion as to tlic formation, tlie 
 situation, and the principles of a new government. Hans., June 22. See Mi'. 
 ( datlstonc's recognition of the claim of tlie house to have explanations, 77 E. 
 Hans. (3), 77 ; alsf) 1.36 //;. 941, 900. 
 
 2("an. Hans. (1891), June 10; Sen. Dei)., June 17. -Minor of I'., 1831-2, 
 p. 21.34. 
 
 2T..dd. ii., 491 ; 1.30 E. Hans. (3), 9.39, 943, 900. 
 
 *May, Const. Hist, ii., 8.x Todd, i., 418, 405-408.
 
 172 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 be remembered that parliament is the court of the people, their 
 grand inquest, to which all matters relating to the public 
 conduct of a ministry or any of its members as heads of 
 departments, must be submitted for review under the rules of 
 constitutional procedure that govern such cases. By means 
 of its committees parliament has all the machinery necessary 
 for making complete inquiry, when necessary, into the man- 
 agement of a public department. Especially in relation to 
 the public expenditures has the House of Commons the 
 responsibility devolved upon it to see that every payment is 
 made in accordance with law and economy, and that no 
 suspicion of wrong-doing rests on the department having the 
 disposition of any public funds.^ 
 
 Every act done by the responsible minister of the Crown, 
 having any political significance, is a fitting subject for 
 comment, and, if necessary, for censure in either house.^ 
 But it is an admitted principle of sound constitutional govern- 
 ment that the functions of parliament are, strictly speaking, 
 those of control and not of administration, and undue inter- 
 ference with executive authority is most inexpedient, and an 
 infraction of the Crown's prerogative.^ Ministers are primarily 
 
 ^ See the reports of the committee of pubHc accounts in the Canadian 
 Commons Journals from 1867 to 1891 — especially in the latter year — which 
 illustrate the important functions assumed by this committee since its 
 formation in 1867. Also the speeches of Sir R. Cartwright, ex-finance 
 minister, and Sir J. Thompson, minister of justice, setting forth the functions 
 and responsibilities devolving on this committee, Can. Hans., Aug. 19, 1891. 
 Also, in the same session, proceedings and reports of the committee of 
 privileges and elections, called upon to inr^uire into various allegations 
 relating to certain tenders and contracts for public works in Canada. 
 
 ''Earls Derby and Russell, 171 E. Hans. (3), 1720, 1728. Grey's Pari. 
 Govt. , 20. 
 
 ' ' ' Parliament has no direct control over any single department of the state. 
 It may order the production of papers for its information, it may investigate 
 the conduct of public Vjusiness, may pronounce its opinion upon the maimer in 
 which every function of government has been or ought to be discharged ; or it 
 can convey its orders or directions to the meanest official with reference to his 
 duty. Its power over the executive is exercised indirectly, but not the less 
 effectively, through the responsible ministers of the Crowii. These ministers 
 regulate the duties of every department of the state and are responsible for
 
 RESPONSIBILITY OF 3IINISTERS. 173 
 
 and ahvays responsible for the administration of their respec- 
 tive departments, and it is for them to stand between the 
 permanent non-political officials and the censure of the 
 houses when the former are acting- sti'ictly within their 
 functions as advisers and assistants of their political heads, 
 immediately answerable to the parliament and the country 
 for the efficient administration of public affairs.^ 
 
 A government, however, will itself agree to submit to 
 special parliamentary committees the investigation of certain 
 questions of administration on which it may itself desire to 
 elicit a full expression of opinion, and all the facts possible, 
 but it is not the constitutional duty of such committee to lay 
 down a public policy on any question of gravity. That is a 
 duty of the responsible ministry itself, which should not be 
 shifted on another body. The legislative and executive 
 authorities should act as far as possible within their respec- 
 tive spheres. It is true the house acts, in a measure, in an 
 executive capacity ; it does so, not as a whole, but only 
 through the agency of a comanittee of its own members — the 
 government or ministry — and while it may properly exercise 
 control and supervision over the acts of its own servants, it 
 should not usui'p their function and impede unnecessarily the 
 executive action of the men to whom it has, from the 
 necessity of things, constitutionally entrusted the management 
 of administrative matters^ 
 
 their proitor poiformance to parliament as ■well as the Crown. If parliament 
 disapprove of any act or policy of the government, ministers must conform to 
 that opinion, or forfeit its confidence." May's Constitutional History, ii., 85, 
 86. See also Macaulay's History of Ilnglaiul, ii., 4.36. 
 
 ' " TTaving f-ntire control over the public (lei)arlmentK, they [ministers] are 
 bound to assume responsibility for every ofiioial act, and not to ])ermit blamo 
 to he imputed to any Kubordinate for the manner in which tlie business of the 
 country is transacted, except only in cases of personal misconduct for whit;h the 
 political chiefs have the remedy in their own hands." Todd i., 628, 62!). 
 Also Ih. ii., 217 ; 174 E. Hans. (3), 416, 184 ///. 2104 ; 217 Ih. 1229 ; 21!) lb. 
 623 ; Grey's Pari. Govt., new ed., 300. 
 
 'See remarks of Lord Palmerston with respect to the necessity of leaving 
 the royal prerogative unfr-tten-d as regards its exercise. \~>() E. Hans. (3), 
 1357 ; 164 Ih. 99. Alao Austin's Plea for the Constitution, 24.
 
 174 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 Such questions can only be effectively administered by a 
 body chosen expressly for that purpose. If it is clear that 
 the ministry or any of its members are incompetent to 
 discharge their functions, the House of Commons at once 
 must evince its desire to recall the authority it had delegated 
 to them, and the Crown, recognizing the right of that body to 
 control its own committee, will select another set of men who 
 appear to have its confidence and to whom it is willing to 
 entrust the administration of public affairs. 
 
 Beside availing itself of the assistance of select parliament- 
 ary committees in special cases requiring the collection of 
 evidence bearing on a question, the government may also, by 
 the exercise of the prerogative^ or in pursuance of statutory 
 authority,^ appoint a Royal Commission to make inquiry into 
 matters on wliich the Crown or the country requires accurate 
 and full information. In this way a great number of valuable 
 facts preliminary to executive and legislative action may be 
 elicited with respect to questions which are agitating the 
 public mind. Questions affecting the relations of capital and 
 labour ,^^ the improvement and enlargement of the canal or rail- 
 way system,^ the employment of Chinese labour,^ the collec- 
 tion of facts as to the practicability of a prohibitory liquor 
 law,^ are among the matters that can legitimately be referred 
 to such royal commissions with the view of assisting the 
 government and parliament in coming to a sound decision 
 before agreeing to the passage of legislation on such subjects. 
 Questions even affecting the lionour of the government itself 
 
 iTodd, ii.,432. 
 
 '^See Pacific Railway Commission of 1873, 2nd sess., Can Com. Jour. By 
 c. 114, Rev. Stat, of Canada, whenever the governor-in-council deems it 
 expedient to cause an inquiry to be made into and concerning any matter 
 connected with the good government of Canada, or the conduct of any part of 
 the public business thereof. Under the statute the commission may summon 
 and enforce attendance of witnesses, who may be examined under oath. See 
 Rev. Stat, of Can., c. 10. 
 
 3 Can. Sess. P., 1889, No. A. 
 
 *Ib. 1871, No. 54. 6/6. 1885, No. 54. 
 
 *See resolution passed in Canadian Commons, June 24, 1891.
 
 BESPONSIBILITY OF MINISTERS. 175 
 
 have been referred to a royal commission in the interest of 
 good government when a parliamentary committee has been 
 lanable to attain tlie object desired by the House of Commons.^ 
 Wliile it may be sometimes decidedly for the public advantage 
 that the Crown should itself appoint a commission to make 
 full and impartial inquiry into such questions, it should in no 
 wise interfere with the privileges and duties of parliament as 
 the great political court of the country. 
 
 A commission should be careful not to enter upon any 
 question of policy lest it should trench upon the proper limits 
 of ministerial responsibility- and upon ground which belongs 
 to parliament. All tlie expenses necessary for the perform- 
 ance of the functions assigned to a royal commission must be 
 defrayed out of moneys annually voted by parliament for that 
 purpose.^ 
 
 Such commissions may be appointed on the recommendation 
 of either house of parliament in the form of an address to the 
 Crown,* or by the simple expression of opinion in favour of 
 such a measure.'' The report of such bodies is transmitted to 
 parliament by command of the governor-general or bj^ 
 message.'' 
 
 In 1900, in response to a demand for inquiry made in the 
 House of Connnons, the government appointed, by order-in- 
 
 ^ Charges in connection with tlio contemplated Canadian Pacific R. R. See 
 despatches of Lord Dull'erin, Can. Com. J., 1873 (2nd Sess.) Exception was, 
 however, taken to the appointment of the commission as an interference with 
 the right of the Commons to enquire into high political offences ; pp. 226, 227. 
 The commissioners in this trying case simply reported the evidence they had 
 taken, and stated no conclusion, on the ground tliat the execution of their 
 functions should not in any way " prejudice whatever proceedings parliament 
 might «l<-sire to take." See also case of Sir A. Caion, Can. Com. Hans., and 
 Jour. 4th May, 181)2 (i., 2070, 2071).- Names of commissioners were first 
 communicated to the house, Ih. i., 2170 ; ii., 2980. 
 
 '.Mr. fJladstone, 177 K Hans. (3), 233, 236 and 217 Pk 6(i4. Sir Stafford 
 Northcotc, 184 Ih. 1731. 
 
 •See Can. Stat, for 1871, ]). 7, Canal Conmiission. 
 
 * 1 18 E. Com. J. 2.'»0, 26."), 3(i3. 377 : 1 10 //'. 215, 229 ; 93 Lords' J. 633, 
 
 6 Can. Com. J. 1891, June 24. 
 
 «//;. (188.->), 124 ; ///. (1889), 271.
 
 176 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 council, under c. 114, Can. Rev. Stat., certain eminent judges 
 to be commissioners to investigate alleged fraudulent practices 
 at Dominion elections.^ 
 
 In addition to royal commissions, the government may 
 appoint a departmental conniiission to make inquiries into 
 matters connected with the official work of the public 
 departments.^ 
 
 In the ev^olution of parliamentary government ministers 
 have become responsible not only for the legislation which 
 they themselves initiate, but for the control and supervision 
 of all legislation which is introduced by private members in 
 either house. In the speech with which parliament is opened 
 there is generally a reference to the leading measures which 
 the government propose to present during the session. This 
 speech, however, does not do more than indicate in almost 
 abstract terms — terms intended to make the document 
 unobjectionable from a political point of view — the intended 
 legislation on matters of public interest. It is generally 
 expected that the measures outlined in the speech will be 
 introduced jluring the session ; but it is admitted by authori- 
 ties that "ministers are not absolutely bound to introduce 
 particular measures commended to the consideration of 
 parliament in the royal speech at tlie opening of the session. 
 Sometimes the press of public business will necessitate the 
 postponement of intended legislation to a future session." 
 For instance, in 1870, the Queen's speech promised a licensing 
 bill, a trade union bill and a legal taxation bill, none of which 
 measures were brought down that session.^ 
 
 It not unfrequently happens that a measure of large public 
 import, on which there is a difficulty in arranging details and 
 
 ^Com. Hans. (1900) ii. , 6569. A reference to index "electoral frauds" will 
 show nature of these charges of frauds. 
 
 ^See Rev. Stat, of Can., c. 115. The civil service commission of 1880-81 
 was appointed by order-in-council to inquire into the condition of the public 
 service of the Dominion and suggest improvements in its organization. It had 
 not tne power to administer oaths given generally to royal commissions under 
 statute. See Can. Sess. P., 1881, No. 113. 
 
 »Todd, ii., 360 ; 202 E. Hans. (3), 486 ; 203 lb. 1734.
 
 RESPONSIBILITY OF MINISTERS. 177 
 
 a considerable difference of opinion, wiU be mentioned in the 
 speech, but will not be actually proposed until a subsequent 
 session, when the public sentiment is more ready to accept it. 
 A franchise act for the Dominion was mentioned several times 
 in the governor-general's speeches from 1867 to 1885, but it 
 was not until the latter year that it became law.^ In the 
 case of a bill consolidating and amendino- the law relatinij to 
 bills of exchange and promissory notes, necessarily involving 
 numerous details of deep interest to the whole business 
 communitj^, it was presented and printed in 1889, but not 
 passed until the subsequent session, when it had been thor- 
 oughly reviewed by all interested in its provisions.^ The 
 consolidation of the criminal laws was not pressed in 1891, but 
 held over until the following session in order to give the judges 
 and the legal profession sufficient time to consider a measure 
 of so much importance. This practice in the case of bills of 
 this character may be justified on the ground that it tends to 
 prevent hasty legislation.^ 
 
 It is the duty of the government to initiate or promote 
 legislation on every large question of public policy which 
 requires attention at the hands of the legislature. 
 
 No feature of the English system of parliamentary govern- 
 ment stands out in such marked contrast with the irresjjonsible 
 system that prevails in the congress of the United States as 
 that which re({uires that there shall be a body of men specially 
 chosen from the majority to lead parliament, and made 
 immediately responsible not only for the initiation and 
 supervision of public legislation,'* but for the control of 
 
 ^f^upra, 61. 
 
 "Can. Hans. (1889), 778, 1G29 ; Ih. (1890), 26. 
 
 •Can. Hans., 1891, May 12. 
 
 ♦Todd, ii., 394. Hearne, 5:36. Mr. Gladstone, 192 E. Hans. (?,), 1190-1194. 
 A select committee on the public business of the English Commons has set 
 forth that "although it ih sxpedient to preserve for individual members ample 
 opportunity for the intrtxluctioii and passage of legislative niuasurcs, yet it is 
 the primary duty of the advisers of tlie Crown to lay before parliament such 
 changes in the law as in their judgment are necessary ; and while they possess 
 12
 
 178 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 private measures so far as they may concern the public 
 at lariife. 
 
 While private members have a perfect right to present bills 
 on every subject except for the imposition of taxes and the 
 expenditure of public money, they do not act under that sense 
 of responsibility which naturally influences ministers who are 
 the leaders of the house and amenable to parliament and the 
 Crown for their policy on all matters of public legislation. 
 Ministers alone can initiate measures of public taxation and 
 expenditure under the constitutional law, which gives control 
 of such matters to the Crown and its advisers, while the 
 conventions and understandings of the constitution have 
 gradually entrusted them also with the direction and super- 
 vision of every matter which demands legislative enactment. 
 In the ordinary nature of things no measure introduced by a 
 private member can become law unless the ministry gives 
 facilities for its passage. If the house should press on their 
 attention a particular measure, they must be prepared to give 
 it full consideration and assume ministerial responsibility for 
 its passage or rejection. They must on all occasions have a 
 policy on every question of public interest, and cannot evade 
 it if they wish to retain the confidence of parliament and of 
 the country. As a rule, private members perform a useful 
 public duty in bringing up measures which illustrate public 
 sentiment in various directions. Parliament is essentially a 
 deliberative body, and its not least important function is to 
 prepare the public mind for useful legislation and to give it 
 effect at the earliest possible moment. Private members 
 consequently can materially assist the government by their 
 suggestions for the amendment of the law. It would, how- 
 ever, be an evasion of the sound principle of ministerial 
 responsibility if a government should attempt, by means of 
 
 the confidence of the H. of C. and remain responsible for good government 
 and for the safety of the state, it would seem reasonable that a preference 
 should be yielded to them, not only in the introduction of their bills, but in 
 the opportunity of pressing them on tlie consideration of the house." E. 
 Coms. Pap., 1861, vol. xi., p. 436.
 
 RESPONSIBILITY OF illNISTEItS. 179 
 
 purely abstract resolutions or by the agency of select com- 
 mittees, to obtain from parliament the enunciation of the 
 principles that should guide them in maturing a measure 
 which imperatively demands legislation at their hands.^ It is 
 their duty to gauge public opinion on every subject from the 
 utterances of public men and of the public press, and lay 
 down the main features of the policy that should be adopted. 
 Havincr submitted a measure to the consideration of parlia- 
 ment, they should be ready to perfect it by the assistance of 
 the houses. 
 
 The rules of parliament are framed for the special purpose 
 of giving every opportunity to the house itself to consider a 
 measure and amend it at various stages. Ministers should 
 always be ready to adopt such amendments as are compatible 
 with the general principles of the measure, and should they 
 feel compelled to recede from any position which they have 
 taken, it is a proper concession to the superior wisdom of a 
 deliberative body, and no confession necessarily that they 
 have lost the confidence of the legislature. It is for them to 
 press, as far as reason and consistency dictate, their own views 
 as to details and endeavour as a rule to arrive at a compromise 
 rather than ultimately lose a measure. 
 
 A distiniruished Encrlish statesman whose judicial fairness 
 in matters of constitutional procedure is admitted by all 
 students of political science, has well said that he " did not 
 think it would be for the public advantage if a government 
 should consider itself bound to carry every measure in the 
 house exactly in the shape they liad proposed it, but he lioped 
 that, with respect to questions of legislation affecting the 
 whole lx)dy of the people, of whose feelings so many members 
 mu.st be cognizant, the house would retain some of its legisla- 
 tive authority." - Another eminent statesman lias admitted 
 
 'iSeo remarks of Mr. Lii\m' dm a jimiiositirni of Mr. Disraeli to go into 
 comriiittoo of tlio wliolc to consider the (jueslioii of a reform act ; 185 E. 
 HariH. (.3), 9fK». AIho Earl (irey, 1294- 120S. Mr. (!ludstone'.s proposed 
 motion; Ih. I(r2\, H)>2. See alno 233 lb. 1753, 182.5. 
 
 "Lord John RuHscll. 73 E. Hans. (3), 1G38.
 
 180 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 that " with respect to many great measures, the sense of the 
 legislature ought to prevail ; and that if no great principle be 
 involved and very dangerous consequences are not expected to 
 result, the government ought not to declare to parliament that 
 they stake their existence as a government on any particular 
 measure, but are bound on certain occasions to pay proper 
 deference to the expressed opinions of their supporters."^ But 
 it must be added, if the measure under consideration embodies 
 a policy to which the political faith of the ministers is pledged, 
 which they consider indissolubly connected with their own 
 existence as a government, chosen from a particular party, 
 and from which they cannot recede without a sacrifice of 
 principle and dignity, they must at once assume the ground 
 that its defeat or material amendment means their resignation 
 or an appeal to the people in case they believe the house does 
 not represent the sentiment of the country on the question at 
 issue. 
 
 Isolated defeats of a government possessing the confidence 
 of parliament, do not necessarily demand a resignation, but 
 when the people's house continues to refuse its confidence to 
 them, it is impossible for tliem to remain in office.^ 
 
 Although it is not expedient for a minister of the Crown 
 to take charge of a private bill, it is the special duty of the 
 government as the responsible leaders of legislation and the 
 chosen guardians of the public interests in parliament, to 
 watch carefully the progress of private legislation, and see 
 that it does not in any way interfere with the policy of the 
 ministry or the statutory law in reference to the public lands, 
 railways, canals, public works, and such other interests as are 
 enti-usted to the Dominion authorities. It is in the standing 
 committees that the supervision of private bill legislation is 
 chiefly exercised. One of the most important committees of 
 the Commons, that of railways, canals and telegraph lines, has 
 invariably for its chairman one of the ministers of the Crown, 
 and the minister in charge of railways is also one of its 
 
 1 Sir K. Peel, 73 E. Hans. (3), 16.39, 1640. 
 
 'Lord John Russell, Mirror of P., 1841, pp. 2119, 2120.
 
 OEDEES-IN-COUNCIL. 181 
 
 members, whose special duty it is to watch closely all legisla- 
 tion that may affect the policy of the government.^ 
 
 In a country like Canada, stretching over such a wide area 
 of territory, having so many diversified interests and resources, 
 requiring to be developed by public and private legislation, 
 the committees of this class have great responsibilities resting 
 upon them. The federal system divides the jurisdiction over 
 a great variety of subjects between the Dominion and the 
 provinces, and it is therefore the special duty of each govern- 
 ment to see that questions of conflict are avoided and each 
 legislative authority acts within the fundamental law. 
 
 VII. Orders-in-Council.— Among the many important respon- 
 sibilities whicli a ministry is called upon to perform in the 
 dischar<;e of its executive and administrative functions is the 
 issue of what are known as " Orders-in-Council." Parliament 
 itself being unaV:)le to legjislate for all the details of a measure 
 of government which it may sanction, is forced, as a matter 
 of convenience and necessity, to entrust to the ministry the 
 privilege of issuing certain rules and regulations necessary for 
 the effective administration of matters in charge of certain 
 departments of government. Such rules and regulations are 
 framed by each department separately, but in order to give 
 tliem the validity of law they must be authorized by the 
 governor-in-council — that is to say, each department submits 
 these rules to the council, and when they are approved by the 
 governor-general on the recommendation of that body, they 
 liave the force of a statutory enactment. The executive in 
 tills respect acts in a quasi legislative capacity. Its authority, 
 as a rule, is derived from the various statutes regulating the 
 procedure in all matters to which these orders relate. In 
 England, the Crown, by virtue of its pi'crogative, can issue 
 
 ' Even in England, wliorc the practice is to leave the supervision of private 
 hills to small scnii-jiidicial committees, of which ministers are not mcmhers, 
 the govemnient is '* responsihle for exercising the prerogative of the Crown so 
 as to control ,all legislation in parliann-iit , whether ujton pnl)lic or private 
 matters, for the furtherance of tlie puhlic welfare, and for the protection of 
 private rights from unjustifiable aggression." Todd, ii., 389.
 
 182 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 certain proclamations and orders. It is in this way parlia- 
 ment is sunmioned, prorogued, and dissolved. In Canada 
 similar powers are exercised in accordance with the law. 
 Many orders-in -council, which appear every year in the opera- 
 tions of the departments of government, have the direct au- 
 thority of legislative enactment. By reference to the statutes 
 relating to the public departments, the management and 
 expenditure of the public revenues, the granting of patents 
 and copyrights, tolls on canals, public wharves and docks and 
 railways, the prevention of contagious diseases among cattle, 
 quarantine and health, the collection of criminal and other 
 statistics, the control of the coasting trade, adulteration of food 
 and drugs, the administration of affairs in the district of 
 Keewatin, the management of penitentiaries, and countless 
 other matters, we see how extended a measure of legislative 
 authority has been entrusted to the governor-in-council.^ 
 These orders are published regularly in the Canada Gazette — 
 and in the Gazettes of the provinces when the orders are 
 issued by the provincial executive — for the information of all 
 persons affected by the regulations in question. Copies of all 
 rules, regulations, forms, and other details of administrative 
 action necessary under the law, should appear in the reports 
 of each department entrusted with the management of such 
 matters. 
 
 It is by orders-in-council that the acts of the legislature are 
 disallowed by the governor-gieneral, and proclamations to that 
 effect must appear in the Canada Gazette. It is always 
 competent for parliament by formal address to the governor- 
 general to obtain possession of all orders in pursuance of law, 
 and consequently a great number of such documents are annu- 
 ally laid upon the table of the house for the information of 
 members.^ Parliament having delegated a certain legislative 
 power to the executive, has a right to review its action in all 
 
 ^ See "Consolidated orders-in-council of Canada published under the author- 
 ity and direction of the governor-general." By H. H. Bligh, Q.C., 1889. 
 Also orders at commencement of Dominion statutes every year. 
 
 'See "accounts and papers " in index to journals of Can. House of Commons.
 
 PROCEEDINGS ON RESIGNATION OF MINISTERS 183 
 
 cases and judge whether it has exercised the functions strictly 
 in accordance with law. 
 
 In addition to the orders issued in pursuance of parliament- 
 aiy authority by the privy council of Canada, there also appear 
 in the Canada Gazette and the Canadian statutes from time 
 to time, certain imperial orders-in-council, applicable to the 
 Dominion, and necessary to bring various imperial enactments 
 and treaties into force in that country. For instance, the 
 provinces of British Columbia and Prince Edward Island were 
 brought legally into the confederation in pursuance of orders- 
 in-council issued under the authority of the British North 
 America Act of 1867.^ 
 
 VIII. Proceedings on Resignation of Ministers.— When a minis- 
 try is defeated in parliament its members must resign their 
 respective offices of state unless the political conditions are 
 such as to justify the governor-general to grant them an 
 appeal to the people. When, however, they are prepared to 
 give way to a new government, they only remain in office 
 until their successors are appointed. Up to that time they 
 should carry on the work of their departments. If the poli- 
 tical body known as the cabinet or ministry is dissolved ijiso 
 facto by the death, resignation or dismissal of the cliief 
 minister, the heads of departments continue to hold office 
 until they are asked to retire or continue in office by the new- 
 premier.^ It is alwa3^s understood that in such an event it is 
 for the premier to intimate his wishes in the matter. In this 
 case, however, it is the understandings and conventions of the 
 constitution tliat control tiie formation of the ministry. 
 
 From a legal point of view the heads of departments, such 
 as the minister of railways, the minister of finance, or the 
 minister of jniblic works, liold tlieir office by statutory 
 
 'Can. Stat, of 1H72 and 1873, ]i. N. A. Act, s. 14G. 
 
 ^(J Pari. Del)., 73.-» ; Ul.") K. Hans. (.3), 734, Mirror of R 1830, pp. 273, 
 .'"j.SG, rAl; If). 18.34, p. 27-'<>. Todd ii., f)!.! See Toronto Empire, Juno 8, 
 1801, for article by prcHent autlior on liiHtorical preccdoiuj as to constitutional 
 r:onrHo to ho followed in <'f>nHcr|ucnco of death of Sir .Jolin A. Macdonald, the 
 prime minister, on th<; Gtii .Tunc
 
 184 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 enactment regulating their respective departments.^ Their 
 offices are held " during pleasure," and they must either 
 formally resign or be formally dismissed when the cabinet is 
 dissolved in accordance with constitutional understandings. 
 The premier, in the case of ministerial changes, is the official 
 medium of communication by whom the representative of the 
 sovereign is informed of all the circumstances.^ In case an 
 entirely new ministry is formed by the premier, and all the 
 members of the former administration have resigned, those 
 members of the privy council who accept a departmental 
 office in the government must seek re-election in conformity 
 with the statute regulating the independence of parliament.^ 
 The fact that a man is sworn to the privy council, and is a 
 ■member of the political body known as the cabinet or 
 ministry for the time being, does not vacate a seat in parlia- 
 ment and demand a re-election by the people, but the fact 
 that a privy councillor is appointed to a certain salaried office 
 mentioned in the statute in question. When there is a recon- 
 struction of a cabinet, on the death or resignation of a 
 premier, no re-election is necessary in the case of those 
 departmental heads who continue to hold office in the gov- 
 ernment, though it may be a new government in a political 
 sense.* Even if a minister should resign his former office and 
 
 1 Supi-a, 53 et seq. 
 
 2 205 E. Hans. (3), 1290 ; Wellington Despatches, 3d Ser., vol. iv., pp. 210, 
 213, 215. It is competent, however, for a minister to resign Ids office at a 
 formal interview with the sovereign or her representative. Lewis, Adminis- 
 trations, 448, note. Walpole, Life of Perceval, ii., 234. 
 
 ^Dom. Rev. Stat., c. 11, subs. 3, s. 9. 
 
 ^ For instance, on the death of Sir E. Tache in 1865, Sir Narcisse Belleau 
 was made premier. The former members of the cabinet remained in office. 
 See Turcotte, Canada Sous I'Union, ii., 565, 566. On the death of Sir John 
 Macdonald, in 1891, Mr. Abbott, a member of the privy council and leader of 
 the Senate, was appointed premier, and all members of the former adminis- 
 tration retained their offices. Also case of administration formed by Mr. (Sir) 
 Mackenzie Bowell, Dec. 13, 1894, on death of Sir John Thompson in Windsor 
 Castle, where he had just taken the oath of an imperial privy councillor. 
 See Statistical Year Book of Canada, where there are lists of ministers of each 
 cabinet. For English cases : Liverpool administration on assassination of Mr.
 
 PROCEEDINGS ON RESIGNATION OF MINISTERS. 185 
 
 take another in the new administration, no re-election is 
 necessary in his case. It is not necessary either under the 
 Eno-lish or the Canadian law for a minister to vacate liis seat 
 in case he is re-appointed to an office he had resigned upon a 
 change of ministry, unless some one else had been appointed 
 and held the office in the interim. As stated by high author- 
 ity, " ministerial offices are not vacated by a mere resignation, 
 but only on the appointment of a successor." ^ The Canadian 
 law, as shown elsewhere, provides only for a re-election in the 
 case of a minister resuming office after he has resigned and a 
 successor in a new administration has occupied the same 
 office.^ Members of a government are sworn in as privy 
 councillors, and consequently when a new cabinet is formed, 
 those men who have been previous to that event sworn in as 
 members of the Queen's privy council for Canada need not 
 again take the oath of office which binds them to secrecy ,2 
 while acting in that capacity. Once privy councillors, they 
 remain so until formally dismissed for good and sufficient 
 cause by the Crown.^ If reinstated, then they must again be 
 sworn in as privy councillors.^ Ministers, who change de- 
 partmental offices in case of a reconstruction or dissolution of 
 a cabinet, or otherwise, must take the oath of office of their 
 
 Perceval in 1812, Twiss, Life of Lord Eldon, i., 493, 497 ; RusKell administra- 
 tion on deatli of Viscount Palnierston in 1865, Ann. Reg. (1805), 159 ; Disraeli 
 administration on retirement of Earl of Derby in 1868, Todd, i., 240. 
 
 »See 2 Hatsell, 45 note, 394. 
 
 ^ Supra, 185. 
 
 *"The obligation of keeping the king's counsel inviolably secret is one 
 that rests upon all cabinet ministers and other responsible advisers of the 
 Crown, by virtue of tlic oatli whicli they take wlien the}' are made members of 
 the privy council." Todd, ii., 84. See Ih. 83, 84. 
 
 * For instance, will n Mr. Abbott was chosen premier in 1891, (ui tlic death 
 of Sir John Macdonald, it was not necessary for him to be sworn in, as he was 
 already a member of the privj' council and of llic cabinet constitutionally 
 dissolved. 
 
 •Case of Mr. Fox, dismissed in 1798, and reinstated in 1806, Jesse, Geo. 
 in., vol. iii., y)p. 361, 472. Also of Lord Melville, resworn of the council, 
 after liis dismissal for alleged malfeasance in office. Haydn's Book of Digni- 
 V.\.\'u<. 135.
 
 186 PABLIAMENTARY GOFEBNMENT IN CANADA. 
 
 new department.^ In case of the demise of the sovereign, all 
 privy councillors, lieutenant-governors, judges, and all persons 
 holding a commission from the Crown, must again take an 
 oath of allegiance. Members of all legislative bodies must do 
 the same at the earliest opportunity.^ 
 
 IX, The Law and Usages of Parliament.— It will be seen from 
 the foregoing brief review how largely the precedents and 
 conventions of the political constitution of England mould 
 and direct the parliamentary government of Canada. The 
 written or fundamental law lays down only a few distinct 
 rules with reference to the executive and legislative authority 
 in the Dominion and the provinces, and leaves sufficient oppor- 
 tunity for the play and operation of those flexible principles 
 which have made the parliamentary government of England 
 and of her dependencies so admirably suited to the develop- 
 ment of the best energies and abilities of a people. 
 
 Like the common law of England itself, the system of 
 parliamentary government which Canadians now possess — to 
 apply the language of an eminent American publicist with 
 respect to the common law — "is the outgrowth of the habits 
 of thought and action of the people. Its maxims are those of 
 a sturdy and independent race, accustomed in an unusual 
 degree to freedom of thought and action, and to a share in the 
 administration of public affairs; and arbitrary power and 
 uncontrolled authority are not recognized in its principles."^ 
 
 The law and custom of parliament necessarily forms an 
 important feature of the political system briefly outlined in 
 the present chapter. The code of rules and usages which the 
 Canadian legislatures possess has been mainly derived from 
 that great system of conventional law which has been moulded 
 and worked out by the experience of centuries of the illustrious 
 prototype of all representative and popular assemblies through- 
 
 ^ Cases of Sir C. H. Tupper, Messrs. Bowell and Ives, Dec. 21, 1894. 
 
 2 On death of Queen Victoria and accession of King Edward VII. to the 
 throne, Jan. 22, 23, 1901 ; Canada Gazette, Feb. 2, 1901 ; Can. Rev. Stat., c. 
 19, s. 1, 3, 4. 
 
 3 Cooley, Constitutional Limitations, pp. 32, 33.
 
 THE LAW AND USAGES OF PARLIAMENT. 187 
 
 out the world. ^ Some changes have necessarily been made in 
 the course of time by the Canadian assemblies in their methods 
 of procedure, but on the whole, the main principles of English 
 parliamentary law have been retained in all their integrity 
 and have had their due influence in shaping the parliamentary 
 institutions of the country. By instituting a regular and 
 orderly procedure for the transaction of public business, by 
 affording legitimate opportunities for the free expression of 
 opinion on every measure of importance, by providing an 
 effective machinery for amending and perfecting legislation, 
 hy preventing surprise and haste in the discussion of public 
 measures, by protecting a minority from the tyranny of a 
 majority, by preventing as far as possible unnecessary excite- 
 ment and the adoption of rash measures, by requiring that 
 every motion shall be in writing and subject to certain rules 
 before it can be passed — by conserving all these old and valued 
 principles and usages,- the parliamentary procedure of Canada 
 is sufficient to insure that calm deliberation and caution which 
 are absolutely essential for the conduct of public business. 
 It is true at times the patience of the popular assemblies has 
 been severely tried by the efforts of violent partisanship, and 
 the legitimate limits of discussion have been much exceeded, 
 especially in committees of the whole, but it has been thought 
 preferable so far to ignore such temporary ebullitions of 
 political excitement, and to adhere to those rules which give 
 every opportunity to free criticism and in the end insure a 
 
 * Liebcr dwells upon parliamentary law as an essential guarantee of 
 freedom arul one of the especial glories of the Anglican race. Civil Liberty, 
 153. 
 
 'Referring to the National Assembly of France, Sir Samuel Romilly (Life, i., 
 75) says : " Much of tlie violence wiiich prevailed in the assemljjy would liave 
 l)een allayed and many rash measures unquestionably prevented if tlieir 
 proceedings hafi been conducted with order and regularity. If one single rule 
 ha*l been adopted, namely, that every motion should l)c reduced to writing 
 before it was put from the chair, instead r)f jirooeeding, as was their constant 
 course, by first resolving the principle, aa they called it (dt^cr^ter le principe), 
 and leaving the drawing up of what they had so resolved, or aa they called it 
 (la ri'claction), for a MubH<-f|uent oi)eration, it is astf)nishirig how great an 
 influence it would have had on their debates and on their measures."
 
 188 PARLIAMENTARY GOVERNMENT IN CANADA. 
 
 deliberate conclusion on every subject of public importance. 
 In short, the Canadian representative assemblies are able to 
 give the fullest expression of their will through those rules of 
 procedure which they have adopted from the English code, 
 and consequently their history illustrates both in this and 
 other particulars, briefly reviewed in this chapter, how closely 
 they adhere to those principles and methods of legislation and 
 administration which have made England and her dependen- 
 cies the freest self-governing communities of the world. 
 
 We have now briefly reviewed the most important phases 
 in the development of the constitutional system of the Do- 
 minion of Canada. We have seen how the autocratic, illiberal 
 government of New France, so repressive of all individual 
 energy and ambition, gave place, after the conquest, to repre- 
 sentative institutions well calculated to stimulate human 
 endeavour and develop national character. Step by step we 
 have followed the progress of those free institutions which 
 are now in thorough unison with the expansion of the pro- 
 vinces in wealth and population. At last we see all the 
 provinces politically united in a confederation, on the whole 
 carefully conceived and matured ; enjoying responsible gov- 
 ernment in the completest sense, and carrying out at the 
 same time, as far as possible, those British constitutional 
 principles which give the best guarantee for the liberties of a 
 people. With a federal system which combines at once 
 central strength and local freedom of action ; with a per- 
 manent executive independent of popular caprice and passion ; 
 with a judiciary on whose integrity there is no blemish, and 
 in whose learning there is every confidence ; with a civil 
 service resting on the firm basis of freedom from politics and 
 of security of tenure ; with a people who respect the law and 
 fully understand the workings of parliamentary institutions,
 
 THE LAW AND USAGES OF PARLIAMENT. 189 
 
 the Dominion of Canada need not fear comparison with any 
 other country in those things which make a community truly 
 liappy and prosperous.^ 
 
 ^ The words of the Marquess of Lome (now the Duke of Ai'gyll), in reply to 
 the farewell address of the parliament of Canada, 25th May, 1883, may be 
 appropriatelj' cited here as the impartial testimony of a governor-general after 
 some years' experience of the working of Canadian institutions : — 
 
 " A judicature above suspicion ; self-governing communities entrusting to a 
 strong central government all national interests ; the toleration of all faiths, 
 with favour to none ; a franchise recognizing the rights of labour, by the 
 exclusion onlj' of the idler ; the maintenance of a government not privileged 
 to exist for any fixed term, but ever susceptible to the change of public 
 opinion, and ever open, through a responsible ministry, to the scrutinj' of the 
 people : — these are the features of your rising power."
 
 APPENDIX. 
 
 A. British North America Act, 1807 191 
 
 B. An Act respecting the establishment of Provinces in the Dominion 
 
 of Canada (34-35 Vict., c. 28) 231 
 
 C. An Act to remove certain doubts with re,spect to the powers of 
 
 the Parliament of Canada under section 18 of the B. N. A. Act, 
 1867 (38-39 Vict., c. 38) , 232 
 
 D. An Act respecting the representation in the Parliament of Canada 
 
 of Territories which for the time being form part of the Dominion 
 of Canada, but are not included in any province (49-50 Vict., c. 
 35) 234 
 
 190
 
 APPENDIX. 
 A. 
 
 THE BRITISH NORTH AMERICA ACT, 1867. 
 
 ANNO TKICESIMO ET TUICESIMO-PRIMO VICTORIA BEGINS, 
 
 CAP. III. 
 
 An Act for the Union of Canada, Nova Scotia and Neio Brunswick, 
 and the Oovernment thereof, and for purposes connected therewith. 
 
 [29th March, 1867.] 
 
 WHEREAS the Provinces of Canada, Nova Scotia and 
 New Brunswick have expressed their Desire to be 
 federally united into One Dominion under the Crown of 
 tlie United Kingdom of Great Britain and Ireland, with 
 a Constitution similar in Principle to that of the United 
 Kingdom : 
 
 And whereas such a Union would conduce to the Wel- 
 fare of the Provinces and promote the Interests of the 
 British Kmpire : 
 
 And whereas on the Establishment of the Union by 
 Authority of Parliament, it is expedient, not only that 
 the Constitution of the Legislative Authority in the Do- 
 minion !)(! provided for, but also that the Nature of the 
 Executive Government therein be declared : 
 
 And whereas it is expedient tliat Provision be made for 
 the ovniitual Admission into the l^iiioii ot' other Parts of 
 Jiritish North America: 
 
 Bo it thcrcforo enacted and declared by the Queen's 
 Most Excellent Majesty, by and with the Advice and 
 Consent of the Lords Spiritual and Temporal, and Com- 
 HKins, in this j)resent Parliaiii«!nt assembled, and by the 
 Authority of the same, as follows :
 
 192 
 
 APPENDIX. 
 
 I. — PRELIMINARY. 
 
 Short Title. 1 . This Act may be cited as the British North America 
 Act, 1867. 
 
 2. The Provisions of this Act referring to Her Majesty 
 the Queen extend also to the Heirs and Successors of 
 Her Maiestv, Kinijs and Queens of the United Kingdom 
 
 the Queen. n ri 4. x. • J • 1 T l 1 
 
 vOi Great isritain and IreJand. 
 
 Applica- 
 tion of Pro 
 visions re- 
 ferring: to 
 
 II. 
 
 -UNION. 
 
 Declara- 
 tion of 
 Union. 
 
 3. It shall be lawful for the Queen, by and with the 
 Advice of Her Majesty's Most Honourable Privy Council, 
 to declare by Proclamation that, on and after a Day 
 therein appointed, not being more than Six Months after 
 the passing of this Act, the Provinces of Canada, Nova 
 Scotia and New Brunswick shall form and be One Domi- 
 nion under the name of Canada ; and on and after that 
 Day those Three Provinces shall form and be One Domi- 
 nion under that Name accordingly. 
 
 Construe- 4. The subsequent Provisions of this Act shall, unless 
 tion of sub- ^^ jg otherwise expressed or implied, commence and have 
 Provisions effect on and after the Union, that is to say, on and after 
 of Act. ^Yie Day appointed for the Union taking effect in the 
 Queen's Proclamation ; and in the same Provisions, un- 
 less it is otherwise expressed or implied, the Name Can- 
 ada shall be taken to mean Canada as constituted under 
 this Act. 
 
 Four Pro- 
 vinces. 
 
 Provinces 
 
 5. Canada shall be divided into Four Provinces, named 
 Ontario, Quebec, Nova Scotia, and New Brunswick. 
 
 6. The Parts of the Province of Canada (as it exists at 
 of^ntario ^jjg passing of this Act) which formerly constituted re- 
 spectively the Provinces of Upper Canada and Lower 
 Canada, shall be deemed to be severed, and shall form 
 Two Separate Provinces. The Part which formerly con- 
 stituted the Pro\unce of Upper Canada shall constitute 
 the Province of Ontario ; and the Part which formerly 
 constituted the Province of Lower Canada shall consti- 
 tute the Province of Quebec. 
 
 7. The Provinces of Nova Scotia and New Brunswick 
 
 Provinces 
 of Nova Sco- 
 
 ot r<ova .■5CO- ■ • __ _ _ -. 
 
 tia and New shall have the same Limits as at the passing of this Act 
 
 Brunswick. 
 
 Brunswick. 
 
 Decennial 
 Census. 
 
 8. In the general Census of the Population of Canada 
 which is hereby required to be taken in the year One 
 thousand eight hundred and seventy-one, and in every
 
 BRITISH yORTH AMERICA ACT. 193 
 
 Tenth year thereafter, the i-espective Populations of the 
 Four Provinces shall be distinguished. 
 
 III. — EXECUTIVE POWER. 
 
 9. The Executive Government and Authorit)' of and Deciara- 
 over Canada is hereby declared to continue and be vested in Executive 
 
 . , r\ Power in 
 
 the Queen. the Queen. 
 
 10. The Provisions of this Act referring to the Governor- AppUca- 
 General extend and apply to the Governor-General for the p°"4^iong 
 Time being of Canada, or other the Chief Executive Officer referring 
 or Administrator for the Time being carrying on the ^"q^,^^^^,.. 
 Government of Canada on behalf and in the name of the General. 
 Queen, by whatever title he is designated. 
 
 11. There shall be a Council to aid and advise in theconstitu- 
 Government of Canada, to be stjded the Queen's Privy p^"° 
 Council for Canada ; and the Persons who are to be Mem- Council for 
 bers of that Council shall be from Time to Time chosen 
 
 and summoned by the Governor-General and sworn in as 
 Privy Councillors, and Members thereof may be from Time 
 to Time removed by the Governor-General. 
 
 12. All Powers, Authorities, and Functions which under ah powers 
 any Act of the Parliament of Great Britain, or of the ['^"f,^ ^^cts 
 Parliament of the United Kingdom of Great Britain and cised by 
 Ireland, or of the Legislature of Upper Canada, Lower Qgnerai"^' 
 Canada, Canada, Nova Scotia or New Brunswick, are at with advice 
 the Union vested in or exercisable by the respective Gov- council, 
 ernors or Lieutenant-Governors of those Provinces, with ""^ *^°"^- 
 the Advice, or with the Advice and Consent, of the res- 
 pective Executive Councils thereof, or in conjunction with 
 
 tlio.se Councils, or with any number of Members thereof, 
 or by those Governors or Lieutenant-Governors individu- 
 ally, shall, as far as the same continue in existence and 
 capable of ])eing exercised after the Union, in relation to 
 the G()V(;riinicnt of Canada, be vested in and exercisable 
 by the Governor-General, with the Advice or with (ho 
 Advice; ,-iiid Consent of or in cf)iijuiuti*iii \vi(h the Queen's 
 Privy Council for Canada, or any Members thereof, or by 
 the Governor-(ieneral individually, as the Case requires, 
 subject nevertheless (exce[»t with respect to such as exist 
 undcT Acts of the Parliament of (ire.'it Britain or of the 
 Parliament of the United Kingdom of fJreat l^ritain and 
 
 Irelanfl) to be abolished or altered by (he Parliament of 
 
 C( 1 Applica- 
 
 -anada. ,1,',,', „, 
 
 13. The Provisions of this Act, referring to the Cover- ixtcrrini; to 
 nor-General in Council shall be construed as referring t'»Jj',.',V(!r!in„ 
 
 13 Council.
 
 194 
 
 APPENDIX. 
 
 Power 
 to Her 
 Majesty to 
 authorize 
 Governor- 
 General to 
 appoint 
 Deputies. 
 
 the Governor-General acting l)y and with the Advice of 
 the Queen's Privy Council for Canada. 
 
 14. It shall be lawful for the Queen, if Her Majesty 
 tliinks fit, to authorize the Governor-General from Time to 
 Time to appoint any Person or any Persons jointly or 
 severally to be his Deputy or Deputies within any Part or 
 Parts of Canada, and in that Capacity to exercise during 
 the Pleasure of the Governor-General such of the Powers, 
 Authorities and Functions of tlie Governor-General as the 
 Governor-General deems it necessary or expedient to assign 
 to him or them, subject to any Limitations or Directions 
 expressed or given by the Queen ; but the Appointment of 
 such a Deputy or Deputies shall not affect the Exercise by 
 the Governor-General himself of any Power, Authority, or 
 Function. 
 
 l.T. The Command-in-Chief of the Land and Naval 
 
 Command 
 of armed 
 
 Forces to Militia, and of all Naval and Military Forces, of and in 
 be'vest"ed in Canada, is hereby declared to continue and be vested in 
 the Queen, the Queen. 
 
 Seat of 
 Govern- 
 menc of 
 Canada. 
 
 16. Until the Queen otherwise directs. 
 Government of Canada shall be Ottawa. 
 
 the Seat of 
 
 IV. — LEGISLATIVE POWER. 
 
 17. There shall be One Parliament for Canada, consist- 
 Pariiament ing of the Queen, an Upper House styled the Senate, and 
 
 Constitu- 
 tion of 
 
 of Canada, the House of Commons. 
 
 Privileges, 
 &c., of 
 Houses. 
 
 First Ses- 
 sion of the 
 Parliament 
 of Canada. 
 
 Yearly Ses- 
 sion of the 
 Parliament 
 of Canada. 
 
 18. The Privileges, Immunities, and Powers to be held, 
 enjoyed and exercised by the Senate and by the House of 
 Commons, and by the Members thereof respectively, shall 
 be such as are from Time to Time defined by Act of the 
 Parliament of Canada, but so that the same shall never 
 exceed those at the passing of this Act held, enjoyed, 
 and exercised by the Commons House of Parliament of the 
 United Kingdom of Great Britain and Ireland, and by the 
 Members thereof.^ 
 
 19. The Parliament of Canada shall be called together 
 not later than Six months after the Union. 
 
 20. There shall be a Session of the Parliament of Canada 
 once at least in every Year, so that Twelve months shall 
 not intervene between the last Sitting of the Parliament 
 in one Session and its first Sitting in the next Session. 
 
 1 Amended by 38-39 Vict., c. 38. See infra, App. C.
 
 BRITISH yORTH AMERICA ACT. 195 
 
 The Senate. 
 
 21. The Senate shall, subject to the Provisions of this Number of 
 Act, consist of Seventy-two Members, who shall be styled ®"'^'^*"'*- 
 Senators. 
 
 22. In relation to the Constitution of the Senate, Canada Representor 
 shall be deemed to consist of Three Divisions : — Provinces 
 
 . in Senate. 
 
 ( 1 . ) Ontario ; 
 
 (2.) Quebec; 
 
 (3.) The Maritime Provinces: NoA-a Scotia and New 
 Brunswick ; which Three Divisions shall (subject to the 
 Provisions of this Act) be equally represented in the Senate 
 as follows : Ontario by Twenty -four Senators ; Quebec by 
 Twenty-four Senators ; and the Maritime Provinces by 
 Twenty-four Senators, Twelve thereof representing Nova 
 Scotia and Twelve thereof representing New Brunswick. 
 
 In the case of Quebec, each of the Twenty-four Senators 
 representing that Province shall be appointed for one of 
 the Twenty-four Electoral Divisions of Lower Canada 
 specified in Schedule A, to Chapter One of Consolidated 
 Statutes of Canada. 
 
 23. The Qualifications of a Senator shall be as follows: — Quaiifica. 
 
 tioiis of 
 
 (1.) He shall be of the full Age of Thirty years. Senator. 
 
 (2.) He shall be either a Natural-born Subject of the 
 Queen, or a Subject of tlie Queen naturalized by an 
 Act of the Parliament of Great Britain, or of the 
 Parliament of the United Kingdom of Great Britain 
 and Ireland, or of the Legislature of one of the 
 Provinces of Upper Canada, Lower Canada, Canada, 
 Nova Scotia, or New Brunswick, before the Union, 
 or of the Parliament of Canada after the TTnion. 
 
 (3.) He shall be legally or equitably seized as of Free- 
 hold for his own Use and Benefit of Lands or 
 Tenements held in free and Common Soccage, pr 
 seized or pos.ses.sed for his own Use and Benefit of 
 Lands or Tenements held in Franc-alleu or in 
 Boturo, within the Province for which he is appoint- 
 ed, of the value of Four Thousand Dollars, over and 
 al)i)vo all llonts, Dues, Debts, Charges, Mortgages 
 and Licuiiiljranccs due or payable out of, or cliarged 
 on or affecting the .same ; 
 
 (4.) His Ileal and Personal Property shall be together 
 worth fonr Thousand Dollars over and aljove his 
 Debts and J>ial)ilitics ;
 
 196 
 
 APPENDIX. 
 
 Summons 
 of Senator. 
 
 Summons 
 of First 
 Body of 
 Senators. 
 
 Addition 
 of Senators 
 in certain 
 cases. 
 
 Reduction 
 of Senate 
 to normal 
 number. 
 
 Maximum 
 number of 
 Senators. 
 
 Tenure of 
 place in 
 Senate. 
 
 Resignation 
 of place in 
 Senate. 
 
 Disqualifi- 
 cation of 
 Senators, 
 
 (5.) He shall be resident in the Province for which he is 
 appointed ; 
 
 (6.) In the Case of Quebec, he shall have his Real Pro- 
 perty qualification in the Electoral Uivision for 
 which he is appointed, or shall be x-esident in that 
 Division, 
 
 24. The Governor-General shall from Time to Time, in 
 the Queen's Name, by Instrument under the Great Seal of 
 Canada, summon qualified persons to the Senate; and, 
 subject to the Provisions of this Act, every person so 
 summoned shall become and be a Member of the Senate 
 and a Senator, 
 
 25. Such persons shall be first summoned to the Senate 
 as the Queen by Warrant under Her Majesty's Royal Sign 
 Manual thinks fit to approve, and their names shall be 
 inserted in the Queen's Proclamation of Union, 
 
 26. If at any Time, on the Recommendation of the 
 Governor-General, the Queen thinks fit to direct that 
 Three or Six Members be added to the Senate, the Gover- 
 nor-General may, by Summons to Three or Six Qualified 
 Persons (as the case may be), representing equally the 
 Three Divisions of Canada, add to the Senate accordingly. 
 
 27. In case of such Addition being at any Time made, 
 the Governor-General shall not summon any Person to the 
 Senate, except on a further like Direction by the Queen 
 on the like Recommendation, until each of the Three Di- 
 visions of Canada is represented by Twenty-four Senators, 
 and no moi'e. 
 
 28. The Number of Senators shall not at any time ex- 
 ceed Seventy-eight, 
 
 29. A Senator shall, subject to the Provisions of this 
 Act, hold his place in the Senate for life, 
 
 30. A Senator may, by writing under his hand, ad- 
 dressed to the Governor-General, resign his place in the 
 Senate, and thereupon the same shall be vacant. 
 
 31. The place of a Senator shall become vacant in any 
 of the following cases : — 
 
 (2.) 
 
 If for two Consecutive Sessions of the Parliament 
 he fails to give his Attendance in the Senate ; 
 If he takes an Oath or makes a Declaration or Ac- 
 knowledgment of Allegiance, Obedience or Adher-
 
 BRITISH NORTH AMERICA ACT. 197 
 
 ence to a Foreign Power, or does an Act whereby 
 he becomes a Subject or Citizen, or entitled to the 
 Rights or Privileges of a Subject or Citizen of a 
 Foreign Power ; 
 
 (3.) If he is adjudged Bankrupt or Insolvent, or applies 
 for the benefit of any Law relating to Insohent 
 debtors, or becomes a public defaulter ; 
 
 (4.) If he is attainted of Treason, or convicted of Felony 
 or of any infamous Crime ; 
 
 (5.) If he ceases to be qualified in respect of Property 
 or of Residence ; provided that a Senator shall not 
 be deemed to have ceased to be qualified in respect 
 of Residence by reason only of his residing at the 
 Seat of Government of Canada while holding an 
 Office under that Government requiring his Presence 
 there. 
 
 32. When a vacancy happens in the Senate by Resigna- Summons 
 tion. Death or otherwise, the Governor-General sliall, by °"se^nate°^' 
 Summons to a fit and qualified Person, fill the Vacancy. 
 
 33. If any Question arises respecting the Qualification of Questions 
 
 a Senator or a Vacancy in the Senate, the same shall behcationsand 
 lieard and determined by the Senate. [nfenatt 
 
 34. The Governor-General may from Time to Time, byAppoint- 
 Instruinent under the Great Seal of Canada, appoint agpeaj^erof 
 Senator to be Speaker of the Senate, and may remove him Senate. 
 and appoint another in his stead. 
 
 35. Until the Parliament of Canada otherwise provides, Quorum of 
 the Presence of at least Fifteen Senators, including the 
 Speaker, sliall be necessary to constitute a Meeting of the 
 Senate for the exercise of its Powers. 
 
 30. Questions arising in the Senate shall be decided by Voting in 
 a majority of Voices, and the Speaker shall in all Cases 
 liave a vote, and when the Voices are equal the Decision 
 ahall be deemed to be in the Negative. 
 
 I'he House of Commons. 
 
 37. The House of Commrms sliall, subject to the Provi- Consiitu- 
 sions of tlii's Act, consist of One hundred and eighty-one ^',",",g"'o, 
 Members, of whfim Eighty-two shall be elected for Ontario, Commons 
 
 ^ » , , 1 -VT . . /. XT ;ji i • 1 '" Canada. 
 
 Sixty-five for Quebec, Nineteen for JNova Scotia, and 
 
 Fifteen for New Jiinnswick.
 
 198 
 
 APPENDIX. 
 
 Summon- 3i>. The Governor-General shall from Time to Time, in 
 
 House of the Queen's name, by Instrument under the Great Seal 
 Commons, of Canada, summon and call together the House of Com- 
 mons. 
 
 Senators 
 
 not to sit in . 
 
 House of of Sitting or voting as 
 
 Commons. 
 
 mons. 
 
 39. A Senator shall not be capable of being elected, or 
 
 a Member of the House of Com- 
 
 Eiectorai 40. Until the Parliament of Canada otherwise provides, 
 
 of^thlffour Ontario, Quebec, Nova Scotia and New Brunswick shall. 
 Provinces f^j. ^}^g Purposes of the Election of Members to serve in 
 
 the House of Commons, be divided into Electoral Districts 
 
 as follows : — 
 
 I.— ONTARIO. 
 
 Ontario shall be divided into the Counties, Ridings of 
 Counties, Cities, Parts of Cities, and Towns enumerated 
 in the First Schedule to this Act, each whereof shall be an 
 Electoral District, each such District as numbered in that 
 Schedule being entitled to return One Member. 
 
 11.— QUEBEC. 
 
 Quebec shall be divided into Sixty-five Electoral Districts, 
 composed of the Sixty-five Electoral Divisions into which 
 Lower Canada is at the passing of this Act divided under 
 Chapter Two of the Consolidated Statutes of Canada, 
 Chapter Seventy-five of the Consolidated Statutes for 
 Lower Canada, and the Act of the Province of Canada of 
 the Twenty-third year of the Queen, Chapter One, or any 
 other Act amending the same in force at the Union, so 
 that each such Electoral Division shall be for the Purposes 
 of this Act an Electoral District entitled to return One 
 Member. 
 
 III.— NOVA SCOTIA. 
 
 Each of the Eighteen Counties of Nova Scotia shall be 
 an Electoral District. The County of Halifax shall be 
 entitled to return Two Members, and each of the other 
 Counties One Member. 
 
 IV.— NEAV BRUNSWICK. 
 
 Each of the Fourteen Counties into which New Bruns- 
 wick is divided, including the City and County of St. 
 John, shall be an Electoral District. The City of St. John
 
 BRITISH NORTH AMERICA ACT. 199 
 
 shall also be a separate Electoral District. Each of those 
 Fifteen Electoral Districts shall be entitled to return One 
 Member. 
 
 41. Until the Parliament of Canada otherwise provides, Continu- 
 all Laws in force in the several Provinces at the Union existing 
 relative to the following Matters or any of them, namely, L'^';'^'°"t■l 
 — the Qualifications and Disqualifications of Persons to be parliament 
 elected or to sit or vote as Members of the House of As- o[ifen\ise 
 serably or Legislative Assembly in the several Provinces, provides. 
 the Voters at Elections of such Members, the Oaths to be 
 taken by Voters, the Returning Ofiicers, their Powers and 
 Duties, the Proceedings at Elections, the Periods during 
 which Elections may be continued, the Trial of Contro- 
 verted Elections and Proceedings incident thereto, the 
 vacatimg of Seats of Members, and the Execution of new 
 "Writs, in case of Seats vacated otherwise than by Disso- 
 lution, — shall respectively apply to Elections of INIembers 
 to serve in the House of Commons for the same several 
 Provinces. 
 
 Provided that, until the Parliament of Canada otherwise Proviso as 
 provides, at any Election for a Member of the House of *° Aigoma. 
 Commons for tlie District of Algoma, in addition to Per- 
 sons qualified by the Law of the Province of Canada to 
 vote, every male British Subject, aged Twenty-one Years or 
 upwards, being a Householder, shall have a Vote. 
 
 42. For the First Election of Members to serve in the Writs for 
 House of Commons, the Governor-General shall cause Writs Election. 
 to he issued by such Person, in such Form and addressed 
 to such Returning Officers as he thinks fit. 
 
 The Person issuing "Writs under this Section shall have 
 the like Powers as ai-e possessed at the Union by the 
 Officers chai-ged with the issuing of Writs for the Election 
 of Mcinl)('rs to serve in the respective House of Asseml)ly 
 or legislative Assembly of the Province of Canada, Nova ^ 
 
 Scotia or New Brunswick; and the Returning Officers to 
 whom Writs are directed under this Section shall have the 
 like Powers as are possos."(!d at tlu? Union by the Officers 
 charjied with the returnin'' of Writs for the Klcction of 
 Members to serve in tlie.same respective House of Assembly 
 or Legislative Assembly. 
 
 43. In case a vacancy in the Rf'presentation in theAHto 
 House of Couimons of any Electoral District hapi)ens^.^"^^gg 
 iK^fore the Meeting of the Parliament, or after the Meet- 
 ing of the Parliament before Provision is made by the
 
 200 
 
 APPENDIX. 
 
 As to Elec- 
 tion of 
 Speaker of 
 House of 
 Commons. 
 
 As to filling 
 up Vacancy 
 in Office of 
 Speaker. 
 
 Speaker to 
 preside. 
 
 Provision 
 in case of 
 absence of 
 Speaker. 
 
 Quorum of 
 House of 
 Commons. 
 
 Voting in 
 House of 
 Commons. 
 
 Duration of 
 House of 
 Commons. 
 
 Decennial 
 Readjust- 
 ment of 
 Represent- 
 ation. 
 
 Parliament in this behalf, the Provisions of the last fore- 
 going Section of this Act shall extend and apply to the 
 issuing and returning of a Writ in respect of such vacant 
 District. 
 
 44. The House of Commons, on its first assembling after 
 a general Election, shall proceed with all practicable speed 
 to elect One of its Members to be Speaker. 
 
 45. In case of a Vacancy happening in the Office of 
 Speaker, by Death, Resignation or otherwise, the House of 
 Commons shall, with all practicable Speed, proceed to elect 
 another of its Members to be Speaker. 
 
 46. The Speaker shall preside at all meetings of the 
 House of Commons. 
 
 47. Until the Parliament of Canada otherwise provides, 
 in case of the Absence, for any Reason, of the Speaker 
 from the Chair of the House of Commons for a period of 
 Forty-eight Consecutive Hours, the House may elect 
 another of its Members to act as Speaker, and the Member 
 so elected shall, during the Continuance of such Absence 
 of the Speaker, have and execute all the Powers, Privileges 
 and Duties of Speaker. 
 
 48. The Presence of at least Twenty Members of the 
 House of Commons shall be necessary to constitute a 
 Meeting of the House for the Exercise of its Powers ; and 
 for that Purpose the Speaker shall be reckoned as a 
 Member. 
 
 49. Questions arising in the House of Commons shall be 
 decided by a Majority of Voices other than that of the 
 Speaker, and when the Voices are equal, but not other- 
 wise, the Speaker shall have a Vote. 
 
 50. Every House of Commons shall continue for Five 
 Years from the day of the Pteturn of the Writs for choos- 
 ing the House (subject to be sooner dissolved by the 
 Governor-General), and no longer. 
 
 51. On the completion of the Census in the Year one 
 thousand eight hundred and seventy-one, and of each 
 subsequent decennial Census, the Representation of the 
 Four Provinces shall be readjusted by such Authority, in 
 such a manner, and from such time as the Parliament of 
 Canada fiom Time to Time provides, subject and according 
 to the following Rules : — 
 
 (1.) Quebec shall have the fixed Number of Sixty-five 
 Members ;
 
 BRITISH NORTH AMERICA ACT. 201 
 
 (2.) There shall be assigned to each of the other Pro- 
 vinces such a number of Members as will bear the 
 same Proportion to the Number of its Population 
 (ascertained at such Census) as the Kumber Sixty- 
 five bears to the Number of the Population of 
 Quebec (so ascertained) ; 
 
 (3.) In the Computation of the Number of Members for 
 a Province, a fractional Part not exceeding One-half 
 of the whole number requisite for entitling the 
 Province to a Member shall be disregarded ; but a 
 fractional Part exceeding One-half of that number 
 shall be equivalent to the whole number 1 
 
 (4.) On any such Readjustment the Number of Members 
 for a Province shall not be reduced unless the 
 Proportion which the number of the Population of 
 the Province bore to the Number of the aggregate 
 population of Canada at the then last preceding 
 Readjustment of the Number of Members for the 
 Province is ascertained at the then latest Census to 
 be diminished by One-twentieth Part or upwards ; 
 
 (5.) Such Readjustment shall not take effect until the 
 Termination of the then existing Parliament. 
 
 *«3 
 
 52. The Number of Members of the House of Commons increase of 
 may be from Time to Time increased by the Parliament of ^"oul'e^of'^ 
 Canada, provided the proportionate Representation of the Commons. 
 Provinces prescribed by this Act is not thereby disturbed. 
 
 Money Votes; Royal Assent. 
 
 53. Bills for appropriating any part of the Public Rev- Appropria- 
 
 aiul 
 Bills. 
 
 enue, or for imposing any Tax or Impost, shall originate in^'a"'""* 
 
 the Hou.se of Commons. 
 
 5i. It shall not bo lawful for the llou.se of Commons to Recom- 
 adopt or pass any Vote, Resolution, Address, or Bill for J^l*"^''''"''"" 
 the appropriation of any Part of the Public Revenue^ or of votes. 
 any Tax f>r Impost, to any purpose, that lias not l)eon first 
 reconiniendofl to that Hrjuse by Message of the (Jovernor- 
 General in the Session in whicli such Vote, Resolution, 
 Addre.ss, or Jiill is pi-fiposed. 
 
 55. Where a I'.ill passed by the Hou.ses of Parliament j^o^.^l 
 is presented to the Ciovernor-CJeneral for tlie Queen's AHBcnt to 
 A.s.sent, he shall declare, according to his discrotion, but ' 
 subject to the Provisions of this Act and to Jlcr I\lajesty'.s
 
 202 
 
 APPENDIX. 
 
 Disallow- 
 ance by 
 Order in 
 Council of 
 Act assent- 
 ed to by 
 Governor- 
 General. 
 
 Significa- 
 tion of 
 Queen's 
 pleasure 
 on Bill 
 reserved. 
 
 Instructions, either that he assents thereto in the Queen's 
 Name, or that he withholds the Queen's Assent, or that 
 he reserves the Bill for the Signification of the Queen's 
 Pleasure. 
 
 56. Where the Governor-General assents to a Bill in 
 the Queen's Kame, he shall by the first convenient Op- 
 portunity send an authentic Copy of the Act to One of 
 Her Majesty's Principal Secretaries of State, and if the 
 Queen in Council within Two Years after receipt thereof 
 by the Secretary of State thinks fit to disallow the Act, 
 such Disallowance (with a certificate of the Secretary of 
 State of the Day on which the Act was received by him) 
 being signified by the Governor-General, by speech or 
 Message to each of the Houses of the Pai^liament or by 
 Proclamation, shall annul the Act from and after the Day 
 of such Signification. 
 
 57. A bill reserved for the Signification of the Queen's 
 Pleasure shall not have any Force unless and until within 
 Two Years from the day on which it was presented to the 
 Governor-General for the Queen's Assent, the Governor- 
 General signifies, by Speech or Message to each of the 
 Houses of the Parliament or by Proclamation, that it has 
 received the assent of the Queen in Council. 
 
 An Entry of every such Speech, Message, or Proclama- 
 tion shall be made in the Journal of each House, and a 
 Duplicate thereof duly attested shall be tlelivered to the 
 proper ofl&cer to be kept among the Records of Canada. 
 
 V. PROVINCIAL CONSTITUTIONS. 
 
 Executive Power. 
 
 Appoint- 58. For each Province there shall be an Officer, styled 
 
 Lieutenant- the Lieutenant -Governor, appointed by the Governor- 
 Governors General in Council by Instrument under the Great Seal 
 vinces. of Canada. 
 
 Tenure of 59. A Lieutenant-Govemor shall hold Office during the 
 Lieifte°nant- Pleasure of the Governor-General ; but any Lieutenant- 
 Governor. Governor appointed after the commencement of the First 
 Session of the Parliament of Canada shall not be remov- 
 able within Five Years from his Appointment, except for 
 cause assigned, which shall be communicated to him in 
 Writing within One Month after the Order for his Re- 
 moval is made, and shall be communicated by Message 
 to the Senate and to the House of Commons within 
 One Week thereafter if the Parliament is then sitting,
 
 BRITISH NORTH AMERICA ACT. 203 
 
 and if not then, within One Week after the Commence- 
 ment of the next Session of the Parliament. 
 
 60. The Salaries of the Lieutenant-Governors shall be Salaries of 
 fixed and provided by the Parliament of Canada. Governore." 
 
 61. Every Lieutenant-Governor shall, before assuming oaths, &c., 
 the Duties of his office, make and subscribe before the °f^^''^"*^'^'*' 
 Governor-General or some Pei'son authorized by him, Oaths 
 
 of Allegiance and Office similar to those taken by the 
 Governor-General. 
 
 62. The Provisions of this Act referring to the Lieu- Appiica.tion 
 tenant-Governor extend and apply to the Lieutenant- sions'rVfer- 
 Governor for the Time being of each Province or other the ""- *° . 
 
 • /-\. 41-- e n-i- Lieutenant- 
 
 Cluef Executive Officer or Administrator for the i ime Governor. 
 being carrying on the Government of the Province, by 
 whatever Title he is designated. 
 
 63. The Executive Council of Ontario and Quebec shall ^^if^l' 
 be composed of such Persons as the Lieutenant-Governor Executive 
 from Time to Time thinks fit, and in the first instance of Ontario and 
 the following Officers, namely, the Attorney -General, the Quebec. 
 Secretary and Registrar of the Province, the Treasurer of 
 
 the Province, the Commissioner of Crown Lands, and the 
 Commissioner of Agriculture and Public Works, within 
 Quebec, the Speaker of the Legislative Council and the 
 Solicitor-General. 
 
 64. The Constitution of the Executive Authority in Executive 
 each of the Provinces of Nova Scotia and New Brunswick „',ent of 
 shall, sul^jcct to tlie Provisions of this Act, continue as ^'"y* ^'"'t'* 
 it exists at the Union, until altered under the Authority Brunswick. 
 of this Act. 
 
 05. All Powers, Authoritie.s, and Functions which under foyers to 
 
 i)G cxcr- 
 
 any Act of the Parliament of" Great Britain, or of thedseiiby 
 PaVliainent of the United Kingdom of Great Britain and o^'venwr"'" 
 Trfland, or of the Legislature of Upper Canada, Lower of Ontario 
 Canmla, or Canada, were or are before or at the Union ^it'h advice 
 vested in or exerci.sahle V)y thr> respective Governors oi-ofl^''^- 
 Lifutt^nant-Governors of those Provinces, with the Advice, 
 or with the Advice and Consent, of the rcspcrctive P^xecu- 
 tive Councils tlir-rfof, oi- in coTijiiiict ion wft h those Coun- 
 cils or with any Number of Mc'iiihcrs thereof, or by those 
 Governors or LieuU-nant-Governors individually, shall, as 
 far as the same are capal)le of being exercised after the 
 I'nion in relation to the fiov<'rnment of Ontario and 
 Quclxjc respectively, be vested in and shall or may be
 
 204 APPENDIX. 
 
 exercised by the Lieutenant-Governor of Ontario and 
 Quebec respectively, with the Advice, or with the Advice 
 and consent of, or in conjunction with the respective 
 Executive Councils or any members thereof, or by the 
 Lieutenant-Governor individually, as the case requires, 
 subject nevertheless (except with respect to such as exist 
 under Acts of the Parliament of Great Britain, or of the 
 Parliament of the United Kingdom of Great Britain and 
 Ireland), to be abolished or altered by the respective 
 Legislatures of Ontario and Quebec. 
 
 Application 66. The Provisions of this Act referring to the Lieuten- 
 °g/g^°-^^'°'Jf ant-Governor in Council shall be construed as referring to 
 Lieutenant- the Lieutenant-Governor of the Province acting by and 
 in Council, with the advice of the Executive Council thereof. 
 
 Adminis- 67. The Governor-General in Council may from Time to 
 
 ateence"^ Time appoint an Administrator to execute the OiBce and 
 etc., of Functions of Lieutenant-Governor during his Absence, 
 
 Lieutenant- -rn ii t i -tj 
 
 Governor, llhiess, or other Inability. 
 
 Seats of 68. L^nless and until the Executive Government of any 
 
 Gove'"°-'^' Province otherwise directs with respect to that Province, 
 ments. the Seats of Government of the Provinces shall be as fol- 
 
 lows, namely, — of Ontario, the City of Toronto; of Quebec, 
 the Cit}' of Quebec ; of Nova Scotia, the City of Halifax ; 
 and of New Brunswick, the City of Fredericton. 
 
 Legislative Poiver. 
 
 L— ONTARIO. 
 
 Legislature ^^- There shall be a Legislature for Ontario, consisting 
 for Ontario, of tlie Lieutenant-Governor and of One House, styled the 
 Legislative Assembly of Ontario. 
 
 Electoral 70. The Legislative Assembly of Ontario shall be corn- 
 
 Districts, posed of Eighty-two JNTembers, to be elected to represent 
 
 the Eighty-two Electoral Districts set forth in the First 
 
 Schedule to this Act. 
 
 2.— QUEBEC. 
 
 Legislature 71. There sli*ll be a Legislatui-e for Quebec, consisting 
 of the Lieutenant-Governor and of Two Houses, styled 
 the Legislative Council of Quebec and the Legislative 
 Assembly of Quebec. 
 
 Constitu- 72. The Legislative Council of Quebec shall be com- 
 
 Le"isiative posed of Twenty-four Members, to be appointed by the 
 
 Council.
 
 BRITISH ^'OETH AMERICA ACT. 205 
 
 * 
 
 Lieutenant-Governor in the Queen's Name by Instrument 
 under the Great Seal of Quebec, one being appointed to 
 represent each of the Twenty-four Electoral Divisions of 
 Lower Canada in this Act referred to, and each holding 
 Office for the Term of his life, unless the Legislature of 
 Quebec otherwise provides under the Provisions of this 
 Act. 
 
 73. The Qualifications of the Legislative Councillors of Q;j_f|fj<=*- 
 Quebec shall be the same as those of the Senators for Lefjisiative 
 
 !> , Councillors. 
 
 Quebec. 
 
 74. The Place of a Legislative Councillor of Quebec shall ^esignaMon, 
 become vacant in the Cases, mutatis mutandis, in which tion, &c. 
 the Place of Senator becomes vacant. 
 
 75. When a Vacancy happens in the Legislative CounciP'»°^"cie8. 
 of Quebec by Resignation, Death or otherwise, the Lieu- 
 tenant-Governor, in the Queen's Name, by Instrument 
 under the Great Seal of Quebec, shall appoint a fit and 
 qualified Person to fill the Vacancy. 
 
 7G. If any Question arises respecting the Qualification Questions 
 of a Legislative Councillor of Quebec, or a vacancy in the cancies, &c. 
 Legislative Council of Quebec, the same shall be heard and 
 determined by the Legislative Council. 
 
 77. The Lieutenant-Governor may, from Time to Time, f'p^^];^,^^°g 
 by Instrument under the Great Seal of Quebec, appoint a Council. 
 Member of the I^egislative Council of Quebec to be Speaker 
 thereof, and may remove him and appoint another in his 
 Stead. 
 
 78. Until the Legislature of Quebec otherwise provides, ^"pi8"^ive 
 the Presence of at least Ten Members of the Legislative Council. 
 Council, including the Speaker, shall be necessary to 
 constitute a Meeting for the Exercise of its Powers. 
 
 79. Questions arising in the Legislative Council of Voting in 
 Quel)ec shall be decided by a Majority of Voices, and the^^pfi'i^cn.'^® 
 Speaker shall in all oases have a A'^oto, and when the 
 Voices are equal, the Decision shall 1«; deemed to be in the 
 negative. 
 
 80. The LcL'islative Assembly of Quebec shall be com-Constitu- 
 
 ~ J ^ tjoii of 
 
 posed of Sixty-five Members, to be elected to represent LcifiBiative 
 the Sixty-live Electoral Divisions or Distric-ts of l^o^ver^,"^*'^'^.!;!;'*;, 
 Canafla in this Act referred to, subject to Alteration 
 thereof by the Legislature of Quebec : Provided that it
 
 206 
 
 APPENDIX. 
 
 shall not be lawful to present to the Lieutenant-Governor 
 of Quebec for Assent any Bill for altering the Limits of 
 any of the Electoral Divisions or Districts mentioned in 
 the Second Schedule to this Act, unless the Second and 
 Tliird Readings of such Bill have been passed in the Leg- 
 islative Assembly with the Concurrence of the Majority 
 of the Members representing all those Electoral Divisions 
 or Districts, and the Assent shall not be given to such Bill 
 unless an Address has been presented by the Legislative 
 Assembly to the Lieutenant-Governor, stating that it has 
 been so passed. 
 
 First Ses- 
 sion of 
 
 Legisla- 
 tures. 
 
 Summon- 
 ing of 
 Legislative 
 Assemblies. 
 
 Restriction 
 on election 
 of holders 
 of offices. 
 
 3.— ONTARIO AND QUEBEC. 
 
 81. The Legislatures of Ontario and Quebec respectively 
 shall be called together not later than Six Months after 
 the Union. 
 
 82. The Lieutenant-Governor of Ontario and of Quebec 
 shall, from time to time, in the Queen's Name, by Instru- 
 ment under the Great Seal of the Province, summon and 
 call together the Legislative Assembly of the Province. 
 
 83. Until the Legislature of Ontario or of Quebec other- 
 wise provides, a Person accepting or holding in Ontario or in 
 Quebec, any Office, Commission or Employment, permanent 
 or temporary, at the nomination of the Lieutenant-Gov- 
 ernor, to which an annual Salary, or any Fee, Allow- 
 ance, Emolument or profit of any kind or Amount whatever 
 from the Province is attached, shall not be eligible as a 
 Member of the Legislative Assembly of the respective 
 Province, nor shall he sit or vote as such ; but nothing in 
 this Section shall make ineligible any Person being a mem- 
 ber of the Executive Council of the respective Province, or 
 holding any of the following offices, that is to say, the 
 offices of Attorney-General, Secretary and Registrar of the 
 Province, Treasurer of the Province, Commissioner of 
 Crown Lands, and Commissioner of Agriculture and Public 
 Works, and in Quebec, Solicitor Genei'al, or shall disqualify 
 him to sit or vote in the House for which he is elected, 
 provided he is elected "while holding such office. 
 
 Continuance 84. Until the Legislatures of Ontario and Quebec re- 
 spectively otherwise provide, all Laws which at the Union 
 are in force in those Provinces respectively, relative to the 
 following matters or any of them, namely, — the Qualifi- 
 cations and Disqualifications of Persons to be elected or 
 to sit or vote as Members of the Assembly of Canada, the 
 
 of existing 
 
 election 
 
 laws.
 
 BRITISH NORTH AMERICA ACT. 207 
 
 Qualifications or Disqualifications of Voters, the Oaths to 
 be taken by Voters, the Returning Officers, their Powers 
 and Duties, the Proceedings at Elections, the Periods 
 during which such Elections may be continued, end the 
 trial of Controverted Elections and the Proceedings inci- 
 dent thereto, the vacating of the Seats of Members, and 
 the issuing and execution of new Writs in case of Seats 
 vacated otherwise than by Dissolution, shall i-espectively 
 apply to Elections of Members to serve in the respective 
 Legislative Assemblies of Ontario and Quebec. 
 
 Provided that until the Legislature of Ontario other- 
 wise provides, at any Election for a member of the Legis- 
 lative Assembly of Ontario for the District of Algoma, in 
 addition to persons qualified by the Law of the Province of 
 Canada to vote, every male British Subject aged Twenty- 
 one Years or upwards, being a Householder, shall have a 
 Vote. 
 
 85. Every Legislative Assembly of Ontario and every Duration of 
 Legislative Assembly of Quebec shall continue for Four AssembUel 
 Years from the Day of the Return of the Writs for choos- 
 ing the same (subject, nevertheless, to either the Legisla- 
 tive Assembly of Ontario or the Legislative Assembly of 
 Quel)ec being sooner dissolved by the Lieutenant-Governor 
 
 of tlie Province), and no longer. 
 
 86. There shall be a Session of the Legislature of J^^r'J' 
 Ontario and of that of Quebec, once at least in every Year, Legisla- 
 so that Twelve Months sliall not intervene between the*^*^'^' 
 last Sitting of the Legislature in each Province in one 
 Ses.sion and its first Sitting in the next Session. 
 
 87. The following Provisions of this Act respecting Speaker, 
 the House of Commons of Canada, shall extend and ai)ply i"*""""'' ^• 
 to the Legislative Assemljlies of Ontario and Quebec, that 
 
 is to say, — the Provisions relating to the Election of a 
 Speaker originally and on Vacancies, the Duties of the 
 Speaker, the Absence of the Speaker, the Quorum, and 
 the Mfxle of Voting, as if those Provisions were here 
 re-enacted and made applicable in terms to each such 
 Legislative Assembly. 
 
 4._N0VA SCOTIA AND NEW 15RUNSWTCK. 
 
 88. The Constitution of the Legislature ..f cicli ..f tlic[;;;;;'^^|f,"- 
 Proviiicfs of Nova Scotia and New Brunswick shall, sub- Lctfisia- 
 ject to the Pn>viMions of this Act, continue as it exists at ICv.' sootia 
 the Union until altered under the Authority of this Act ; >""' ^■''^' , 
 
 •' ' urunawick.
 
 208 
 
 APPENDIX. 
 
 First 
 elections. 
 
 and the House of Assembly of New Brunswick existing 
 at the passing of this Act shall, unless sooner dissolved, 
 continue for the period for which it was elected. 
 
 5.— ONTARIO, QUEBEC AND NOVA SCOTIA. 
 
 89. Each of the Lieutenant-Governors of Ontario, Que- 
 bec, and Nova Scotia, shall cause "Writs to be issued for 
 the first Election of Members of the Legislative Assembly 
 thereof in such Form and by such Person as he thinks fit, 
 and at such Time and addressed to such Returning Officer 
 as the Governor-General directs, and so that the first Elec- 
 tion of Member of Assembly for any Electoral District or 
 any Subdivision thereof shall be held at the same Time 
 and at the same Places as the Election for a Member to 
 serve in the House of Commons of Canada for that Elec- 
 toral District. 
 
 Applica- 
 tion to 
 Leffisla- 
 tiires of 
 provisions 
 respecting 
 money 
 votes, &c. 
 
 6.— THE FOUR PROVINCES. 
 
 90. The following Provisions of this Act respecting the 
 Parliament of Canada, namely,— the Provisions relating 
 to Appropriation and Tax Bills, the Recommendation of 
 Money Votes, the Assent to Bills, the Disallowance of 
 Acts and the Signification of Pleasure on Bills reserved, — 
 shall extend and apply to the Legislatures of the several 
 Provinces as if those Provisions were here re-enacted and 
 made applicable in Terms to the respective Provinces and 
 the Legislatures thereof, with the Substitution of the 
 Lieutenant-Governor of the Province for the Governor- 
 General, of the Governor-General for the Queen, and for 
 a Secretary of State, of One Year for Two Years, and of 
 the Province for Canada. 
 
 Legislative 
 Authoritj' 
 of Parlia- 
 ment of 
 Canada. 
 
 VI. — DISTRIBUTION OF LEGISLATIVE POWERS. 
 
 Powers of the Parliament. 
 
 91. It shall 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 all Matters not coming within the 
 Classes of Subjects by this Act assigned exclusively to the 
 Legislatures of the Provinces ; and for greater certainty, 
 but not so as to restrict the Generality of the foregoing 
 Terms of this Section, it is hereby declared that (notwith- 
 standing anything in this Act) the exclusive Legislative 
 Authority of the Parliament of Canada extends to all
 
 BBITISE NORTH AMEBIGA ACT. 209 
 
 Matters coming ^yithin the Classes of Subjects next herein- 
 after 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. 
 ^. Postal Service. 
 
 6. The Census and Statistics. 
 
 7. Militia, Military and Naval Service and Defence. 
 
 8. The tixing of and providing for the Salaries and Allow- 
 
 ances of Civil and other Officers of the Government 
 of Canada. 
 
 9. Beacons, Buoys, Lighthouses and Sable Island. 
 
 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, 
 li. Currency and Coinage. 
 
 15. Banking, Incorporation of Banks and the Issue of 
 
 Paper Money. 
 
 16. Saving.^ Banks. 
 
 17. Weights and INIeasures. 
 
 18. Bills of Exchange and Promissory Notes. 
 
 19. Interest. 
 
 20. Legal Tender. 
 
 21. Bankruptcy and Insolvency. 
 
 22. Patents of Invention and Discovery. 
 
 23. Copyrights. 
 
 24. Indians and Lands reserved for the Indians. 
 
 25. Naturalization and Aliens. 
 
 26. Marriage and Divorce. 
 
 27. The Criminal Law, except the Constitutif»n of the 
 
 Courts c)f Criiriiiial Jurisdiction, but including the 
 Procedure in Criminal Matter.s. 
 
 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 IjOgislatures of the 
 Provinces. 
 
 14
 
 210 APPENDIX. 
 
 - ' And any Matter coming within any of the Classes of 
 
 Subjects enumerated in this Section shall not be deemed 
 to come within the Class of Matters of a local or private 
 Nature comprised in the Enumeration of the Classes of 
 Subjects by this Act assigned exclusively to the Legisla- 
 tures of the Provinces. 
 
 Exclusive Poivers of Provincial Legislatures. 
 
 Subjects of 92. In each Province the Legislature may exclusively 
 p^°\"inciui "^''''ke Laws in relation to Mattel's coming within the 
 Legislation. Classes of Subjects next hereinafter enumerated; that is 
 to say : — 
 
 1. The Amendment from Time to Time, notwithstand- 
 
 ing anything in this Act, of the Constitution of 
 the Province, except as regards the Olfice 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 OiBces, 
 
 and the Appointment and Payment of Provincial 
 Officers. 
 
 5. The Management and Sale of the Public Lands 
 
 belonging to the Province, and of the Timber and 
 Wood thereon. 
 
 6. The Establishment, Maintenance, and Management 
 
 of Public and Pteforiuatory Prisons in and for the 
 Province. 
 
 7. The Establishment, Maintenance, and Management 
 
 of Hospitals, Asylums, Charities and Eleemosy- 
 nary Institutions in and for the Province, other 
 than Marine Hospitals. 
 
 8. Municipal Institutions in the Province. 
 
 9. Shop, Saloon, Tavern, Auctioneer, and other Li- 
 
 censes, in order to the raising of a Revenue for 
 Provincial, Local, or Municipal Purposes. 
 10. Local Works and Undertakings, other than such as 
 are of the following Classes, — 
 a. Lines of Steam or other Ships, Railways, Canals, 
 Telegraphs, and other Works and Undertakings, 
 connecting the Province with any other or others 
 of the Provinces, or extending beyond the Limits 
 of the Province : 
 h. Lines of Steamships between the Province and any 
 British or Foreign Country ;
 
 BRITISH NORTH AMERICA ACT. 211 
 
 c. Such AVorks as, although wholly situate within the 
 Province, are before or after their Execution 
 declared by the Parliament of Canada to be for 
 the general Advantage of Canada or for the 
 Advantage of Two or more of the Provinces. 
 
 11. The Incorporation of Companies with Provincial 
 
 Objects. 
 
 1 2. The Solemnization of Marriage in the Province. 
 
 13. Property and Civil Rights in the Province. 
 
 14. The Administration of Justice in the Province, 
 
 including the Constitution, Maintenance, and 
 Organization of Provincial Courts, both of Civil 
 and of Criminal Jurisdiction, and including 
 Procedure in Civil Matters in those Courts. 
 
 15. The Imposition of Punishment by Fine, Penalty, 
 
 or Imprisonment for enforcing any Law of the 
 Province made in relation to any Matter coming 
 within any of the Classes of subjects enumerated 
 in this Section. 
 
 16. Generally all matters of a merely local or private 
 
 nature in the Province. 
 
 Education. 
 
 93. In and for each Province the Legislature may exclu- Legislation 
 sively make Laws in relation to Education, subject and educat\oif 
 according to the following Provisions : — 
 
 (1.) Nothing in any such Law .shall prejudicially affect 
 any Right or Privilege with respect to Denomi- 
 national Schools which any Class of Persons have 
 Vjy law in the Province at the Union ; 
 
 (2.) All the Powers, Privileges, and Duties at the 
 Union by Law conferred and imposed in Upper 
 Canada on the Separate Schools and School Trus- 
 tees of the Queen's Roman Catholic Subjects, 
 shall be and the same are hereby extended to the 
 Dissentient Schools of the Queen's Protestant and 
 Roman Catholic Subjects in Quebec; 
 
 (3.) Where in any Province a System of Separate or 
 Dissentient Schools exists by Law at llu! ITnion 
 or is thereafter establisln-d by the Legislature of 
 the Province, an Appeal shall lie tf) the (iovernor- 
 General in Council from any Act or Decision of 
 any Provincial Anfhority affecting any Right or 
 Privilege of the Protestant or Roman Catholic 
 Minority of the Queen's Subjects in relation to 
 Education ;
 
 212 
 
 APPENDIX. 
 
 (4.) In case any such Provincial Law as from Time 
 to Time seems to the Governor-General in Coun- 
 cil requisite for the due Execution of the Provi- 
 sions of this Section is not made, or in case any 
 Decision of the Governor-General in Council on 
 any Appeal under this Section is not duly execvited 
 by the proper Provincial Authority in that behalf, 
 then and in every such case, a/id as far only as 
 the circumstances of each case require, the Parlia- 
 ment of Canada may make remedial Laws for the 
 due Execution of the Provisions of this Section, 
 and of any Decision of the Governor-General in 
 Council under this Section. 
 
 Legislation 
 for uni- 
 fonnity of 
 laws in 
 three 
 Provinces. 
 
 Uniformity of Laws in Ontario, Xova Scotia and New 
 
 Brunswick. 
 
 94. Notwithstanding anything in this Act, the Parlia- 
 ment of Canada may make Provision for the Uniformity 
 of all or any of the Laws relative to Property and Civil 
 Rights in Ontario, Nova Scotia and New Brunswick, and 
 of the Procedure of all or any of the Courts in those Three 
 Provinces, and from and after the passing of any Act in 
 that behalf, the Power of the Parliament of Canada to 
 make Laws in i-elation to any matter comprised in any 
 such Act, shall, notwithstanding anything in this Act, be 
 unrestricted ; but any Act of the Parliament of Canada 
 making Provision for such Uniformity, shall not have 
 effect in any Province unless and until it is adopted and 
 enacted as Law by the Legislature thereof. 
 
 Concurrent 
 
 powers of 
 
 legislation 
 
 respecting 
 
 agriculture, 
 
 &c. 
 
 Agriculture and Immigration. 
 
 95. In each Province the Legislature may make Laws 
 in relation to Agriculture in the Province, and to Immi- 
 gration into the Province ; and it is hereby declared that 
 the Parliament of Canada may from Time to Time make 
 Laws in relation to Agriculture in all or any of the Pro- 
 vinces, and to Immigration into all or any of the Provinces ; 
 and any Law of the Legislature of a Province, relative to 
 Agriculture or to Immigration, shall have effect in and for 
 the Province as long and as far only as it is not repugnant 
 to any Act of the Parliament of Canada. 
 
 Appoint- 
 ment of 
 Judges. 
 
 VII. JUDICATURE. 
 
 9G. The Governor-General shall appoint the Judges of 
 the Superior, District and County Courts in each Province,
 
 BRITISH NOBTH AMERICA ACT. 213 
 
 except tliose of the Courts of Probate in Nova Scotia and 
 i^ew Brunswick. 
 
 97. Until the Laws relative to Property and Civil Rights Selection of 
 in Ontario, Nova Scotia and New Brunswick, and the ^^^1^^"^.^^ 
 Procedure of the Courts in those Pi'ovinces, are made 
 uniform, the Judges of the Courts of those Provinces 
 appointed by the Governor-General shall be selected from 
 
 the respective Bars of those Provinces. 
 
 98. The Judges of the Courts of Quebec shall be selected Selection of 
 from the Bar of that Province. Quebec."* 
 
 99. The Judges of the Superior Courts shall hold office Tenure of 
 during good behaviour, but sliall be removiible by the j*(iges'of 
 Governor-General on Address of the Senate and House of Superior 
 
 /-I Courts. 
 
 Commons. 
 
 100. The Salaries, Allowances and Pensions of the Salaries, 
 Judges of the Superior, District and County Courts (except judges. 
 the Courts of Probate in Nova Scotia and New Brunswick) 
 
 and of the Admiralty Courts in cases where the Judges 
 thereof are for the time being paid by Salary, shall be fixed 
 and provided by the Parliament of Canada. 
 
 101. The Parliament of Canada may, notwithstanding General 
 anything in this Act, from Time to Time, provide for the Appeal" &o. 
 Constitution, Maintenance and Organization of a General 
 
 Court of Appeal for Canada, and for the Establishment of 
 any additional Courts for the better Administration of the 
 Laws of Canada. 
 
 VIII. — revenues; debts; assets; taxation. 
 
 102. All Duties and Revenues over which the respective Creation of 
 Legislatures of Canada, Nova Scotia and New Brunswick ,1°^"^*' 
 Ijefore and at the Union, had and have power of Appropri- jj^vonue 
 ation, except such Portions tliereof as are by this Act 
 reserved to the respective f^egislatures of the Provinces, or 
 
 are raised by tlioni in accordance with the spfcial Powers 
 conferred on them by this Act, shall form One Ccjnsolidated 
 Revenue Fund, to be appropriated for the Public Service 
 of Canada in the manner and subject to the charges in this 
 Act provided. 
 
 103. The ConsoIid.iLfd lievonue Fund of Canada shall Expenses 
 be permanently charged with the Costs, Cliarges and t'io'„" J^ ' 
 Expenses incident to the Collection, Management, and 
 Rocei[>t thereof, and the same sliall form tlio First Charge 
 thereon, subject to be reviewed aiul audited in such Man-
 
 214 
 
 APPENDIX. 
 
 ner as shall be ordered by the Governor-General in Council 
 until the Parliament otherwise provides. 
 
 104. The annual Interest of the Public Debts of the 
 several Provinces of Canada, Nova Scotia, and New Bruns- 
 wick at the Union shall form the Second Charge on the 
 Consolidated Revenue Fund of Canada. 
 
 105. Unless altered by the Parliament of Canada, the 
 Salary of the Governor-General shall be Ten Thousand 
 Pounds Sterling Money of the United Kingdom of Great 
 Britain and Ireland, payable out of the Consolidated 
 Revenue Fund of Canada, and the same shall form the 
 Third Charge thereon. 
 
 Appro- 106. Subject to the several Payments by this Act 
 
 From'trme charged on the Consolidated Revenue Fund of Canada, 
 to time. ^YiQ same shall be appropriated by the Parliament of 
 Canada for the Public Service. 
 
 Interest of 
 Provincial 
 public 
 debts. 
 
 Salary of 
 
 Go\ernor- 
 
 General. 
 
 Transfer of 
 stocks, etc. 
 
 Property 
 in lands, 
 mines, etc. 
 
 107. All Stocks, Cash, Bankers' Balances, and Securities 
 for Money belonging to each Province at the Time of the 
 Union, except as in this Act mentioned, shall be the 
 Property of Canada, and shall be taken in Reduction of 
 the amount of the Respective Debts of the Px'ovinces at 
 the Union. 
 
 Transfer of 108. The Public Works and Property of each Province 
 Schedule.'" enumerated in the Third Schedule to this Act shall be the 
 Property of Canada. 
 
 109. All Lands, Mines, Minerals, and Royalties belong- 
 ing to the several Provinces of Canada, Nova Scotia and 
 New Brunswick at the Union, and all sums then due or 
 payable for such Lands, Mines, Minerals, or Royalties, 
 shall belong to the several Provinces of Ontario, Quebec, 
 Nova Scotia and New Brunswick in which the same are 
 situate or arise, subject to any Trusts existing in respect 
 thereof, and to any interest other than that of the Province 
 in the same. 
 
 110. All Assets connected with such Portions of the 
 Public Debt of each Province as are assumed by that 
 Province shall belong to that Province. 
 
 111. Canada shall be liable for the Debts and Liabilities 
 of each Province existing at the Union. 
 
 112. Ontario and Quebec conjointly shall be liable to 
 Canada for the amount (if any) by which the Debt of the 
 
 Assets con- 
 nected with 
 Provincial 
 debts. 
 
 Canada to 
 be liable for 
 Provincial 
 debts. 
 
 Debts of 
 Ontario and 
 Quebec.
 
 BRITISH NORTH AMERICA ACT. 215 
 
 Province of Canada exceeds at the Union Sixty-two mil- 
 lion five hundred thousand Dollars, and shall be charged 
 with Interest at the Rate of Five per centum per annum 
 thereon. 
 
 113. The Assets enumerated in the Fourth Schedule to Assets of 
 this Act, belonging at the Union to the Province of^u*bec.^*^ 
 Canada, shall be the Property of Ontario and Quebec 
 conjointly. 
 
 114. Nova Scotia shall be liable to Canada for the Debt of 
 Amount (if any) by which its Pul)lic Debt exceeds at the^°J^!'^ 
 Union Eight million Dollars, and shall be charged with 
 Interest at the rate of Five per centum per annum thereon. 
 
 115. New Brunswick shall be liable to Canada for the Debt of * 
 Amount (if any) by which its Public Debt exceeds atg^uiiswiok. 
 the Union Seven million Dollars, and shall be charged 
 
 with Interest at the rate of Five per centum per annum 
 thereon. 
 
 116. In case the Public Debts of Nova Scotia and New Payment 
 Brunswick do not at the Union amount to Eight million to Nova 
 and Seven million Dollars respectively, they shall respec- |<=J^*'* '^°*^ 
 lively receive, by half-yearly Payments in advance from Brunswick, 
 tlie Government of Canada, Interest at Five per centum 
 
 per annum on the difference between the actual Amounts 
 of their respective Debts and such stipulated Amounts. 
 
 117. The several Provinces shall retain all their respec-Pro^inoiftl 
 tive Public Property not otherwise disposed of in this Act, property, 
 subject to tlie Right of Canada to assume any Lands or 
 PuljJic Property required for Fortifications or for the 
 Defence of tlie country. 
 
 118. The following sums shall be paid yearly by Canada ^'"''".'s to 
 to the several Provinces for the support of their Govern- 
 ments and Legislatures : 
 
 DOLLARS. 
 
 Ontario - - Eighty thousand. 
 
 Quebec Seventy thousand. 
 
 Nova Scotia Sixty thousaiul. 
 
 New Brunswick I'i^ty thousand. 
 
 Two hundred aiid Sixty thousand ; 
 
 and an annual fJrant in aid of each Province shall be 
 made, efjual to Eighty cents per Head, of the Population 
 as ascertained l*y the Census of One thousand eiglit hun-
 
 216 
 
 APPENDIX. 
 
 Form of 
 Payments. 
 
 dred and sixty-one, and in the case of Nova Scotia and 
 New Brunswick, by each subsequent Decennial Census 
 until the Population of each of those two Provinces 
 amounts to Four hundred thousand Souls, at which Rate 
 such Grant shall thereafter remain. Such Grant shall be 
 in full Settlement of all future demands on Canada, and 
 shall be paid half-yearly in advance to each Province ; but 
 the Government of Canada shall deduct from such Grants, 
 as against any Province, all sums chargeable as Interest on 
 the Public Debt of that Province in excess of the several 
 amounts stipulated in this Act. 
 
 Further 119. New Brunswick shall receive, by half-yearly Pay- 
 
 |g^^* *° ments in advance from Canada, for the Period of Ten Years 
 Bjunswick. from the Union, an additional Allowance of Sixty-three 
 thousand Dollars per annum ; but as long as the Public 
 Debt of that Province remains under Seven million Dollars, 
 a deduction equal to the Interest at five per centum per 
 annum on such Deficiency shall be made from that Allow- 
 ance of Sixty-three thousand Dollars. 
 
 1 20. All Payments to be made under this Act, or in dis- 
 charge of Liabilities created under any Act of the Provinces 
 of Canada, Nova Scotia and New Brunswick, respectively, 
 and assumed * by Canada, shall until the Parliament of 
 Canada otherwise directs, be made in such Form and 
 Manner as may from Time to Time be ordered by the 
 Governor-General in Council. 
 
 Canadian 121. All Articles of the Growth, Produce or Manufacture 
 
 t^e^/etc. of any one of the Provinces shall, from and after the 
 
 Union, be admitted free into each of the other Provinces. 
 
 Continuance 122. The Customs and Excise Laws of each Province 
 anre^ise ^^^^^^^ subject to the Provisions of this Act, continue in 
 laws. force until altered by the Parliament of Canada. 
 
 123. Where Custom Duties are, at the Union, leviable 
 on any Goods, Wares or Merchandises in any Two Pro- 
 vinces, those Goods, Wares and Merchandises may, from 
 and after the Union, be imported from one of those Pro- 
 vinces into the other of them, on Proof of Payment of the 
 Customs Duty leviable thereon in the Province of Exporta- 
 tion, and on payment of such further amount (if any) of 
 Customs duty as is leviable thereon in the Province of 
 Importation. 
 
 124. Nothing in this Act shall affect the right of New 
 Brunswick to levy the Lumber Dues provided in Cliapter 
 Fifteen of Title Three of the Revised Statutes of New 
 
 Exporta- 
 tion and 
 importation 
 a3 between 
 two Pro- 
 vinces. 
 
 Lumber 
 dues in New 
 Brunswick.
 
 BRITISH NORTH AMERICA ACT. 217 
 
 Brunswick, or in any Act amending that Act befoi-e or 
 after the Union, and not increasing the Amount of such 
 Dues ; but the Lumber of any of the ProAances other than 
 New Brunswick shall not be subject to such Dues. 
 
 125. No Lands or Property belonging to Canada or any Exemption 
 Province shall be liable to Taxation. lands, &c. 
 
 126. Such Portions of the Duties and Revenues over provincial 
 which the respective Legislatures of Canada, Nova Scotia ^jo'isoii- 
 and New Brunswick had before the Union, Power of Ap- revenue 
 propriation, as are by this Act reserved to the respective ^""'^• 
 Governments or Legislatures of the Provinces, and all 
 Duties and Revenues raised by them in accordance with 
 
 the Special Powers conferred upon them by this Act, shall 
 in each Province form One Consolidated Revenue Fund to 
 be appropriated for the Public Service of the Province. 
 
 IX. MISCELLANEOUS PROVISIONS. 
 
 General. 
 
 127. If any Person, being at the passing of this Act, a As to 
 Member of the Legislative Council of Canada, Nova Scotia cof,n(.nior^g 
 or New Brunswick, to wliftin a Place in the Senate isofi'ro- 
 offered, does not within Thirty Days thereafter, by Writing becoming 
 under his Hand, addressed to the Governor-General of the ^^"'''^°'^^- 
 Province of Canada or to the Lieutenant-Governor of Nova 
 Scotia or New Brunswick (as tlie case may be), accept the 
 
 same, he shall be deemed to liave declined the same ; and 
 any Person who, being at the passing of this Act a Member 
 of tlie Legislative Council of Nova Scotia or New Bruns- 
 wick, accepts a Place in the Senate, shall thereby vacate 
 his seat in .such Legi.slative Council. 
 
 128. Every Member of the Senate or House of Commons oath of " 
 of Canada shall, before taking his Seat therein, take and l^'^^"'-'"'""' 
 subscribe before the Gov('riior-(Jcii('ral or some Person 
 Autliori/.ed by him, and every Mcinher of a Legislatixc 
 Council or Ix.'gislative A.s.sembly of any Province shall, 
 before faking his Seat therein, take and subscribe before; 
 
 tiie Lieul<'iiant-Governor of the Province, or some Peison 
 autlK)rized by him, tlie Oath of Alh^giance contained in 
 the Filth Schedule to this Act; and every Member of the 
 Sf'uate of Canada and every Memlx'r of the I.cgisla(ivc 
 Council of (^uf'bec shall alsr>, hefon- taking his Seat therein, 
 take and .subscribe before the Governor-General, or s«»me 
 Person authorized by hitn, the Declaration of Qualification 
 coritaiiiefl in the same Schedule.
 
 218 
 
 APPENDIX. 
 
 Continu- 
 ance of 
 existing 
 laws, 
 courts, 
 officers, &c. 
 
 Transfer of 
 officers to 
 Canada. 
 
 Appoint- 
 ment of 
 new 
 officers. 
 
 129. Except as otherwise provided by this Act, all Laws 
 in force in Canada, Nova Scotia, or New Brunswick at the 
 Union, and all Courts of Civil and Criminal Jurisdiction, 
 and all Legal Commissions, Powers and Authorities, and 
 all Officers, Judicial, Administrative, and Ministerial, ex- 
 isting therein at the Union, shall continue, in Ontario, 
 Quebec, Nova Scotia, and New Brunswick, respectively, as 
 if the Union had not been made; subject nevertheless, 
 (except with respect to such as are enacted by or exist 
 under Acts of the Parliament of Great Britain or of the 
 Parliament of the United Kingdom of Great Britain and 
 Ireland), to be repealed, abolished, or altered by the Par- 
 liament of Canada, or by the Legislature of the respective 
 Province, according to the Authority of the Parliament or 
 of that Legislature under this Act. 
 
 1 30. Until the Parliament of Canada otherwise pro- 
 vides, all Officers of the several Provinces having Duties 
 to discharge in relation to Matters other than those coming 
 within the Classes of Subjects by this Act assigned ex- 
 clusively to the Legislatures of the Provinces, shall be 
 Officers of Canada, and shall continue to discharge the 
 Duties of their respective Offices under the same Liabili- 
 ties, Responsibilities and Penalties, as if the Union had 
 not been made. , 
 
 131. Until the Parliament of Canada otherwise provides, 
 the Governor-General-in-Council may from Time to Time 
 appoint such Officers as the Governor-General-in-Council 
 deems necessary or proper for the effectual Execution of 
 this Act. 
 
 Treaty 
 obligations 
 
 Use of 
 
 Engljsh 
 
 an 
 
 132. The Parliament and Government of Canada shall 
 have all Powers necessary or proper for |)erforming the Obli- 
 gations of Canada or of any Province thereof, as Part of the 
 British Empire, towards Foreign Countries, arising under 
 Treaties between the Empire and such Foreign Countries. 
 
 133. Either the English or the French Language may 
 dFrench be used by any Person in the Debates of the Houses of the 
 
 languages. Parliament of Canada and of the Houses of the Legislature 
 of QueVjec ; and both those languages shall be used in the 
 respective Records and Journals of those Houses ; and 
 either of those Languages may be used by any Person or in 
 any Pleading or Process in or issuing from any Court of 
 Canada established under this Act, and in or from all or 
 any of the Courts of Quebec. 
 
 The Acts of the Parliament of Canada and of the Legis- 
 lature of Quebec shall be printed and published in both 
 those Languages.
 
 BRITISH NORTH AMERICA ACT. 219 
 
 Ontario and Quebec. 
 
 134. Until the Legislature of Ontario or of Quebec Appoint- 
 otherwise provides, the Lieutenant-Governors erf Ontaiio eiecutUe 
 and Quebec juay each appoint under the Great Seal of the officers for 
 Province, the following Officers, to hold office during Plea- Quebec. 
 sure, that is to say, — the Attorney-General, the Secretary 
 
 and Registrar of the Province, the Treasurer of the 
 Province, the Commissioner of Crown Lands and the Com- 
 missioner of Agriculture and Public AYorks, and, in the 
 case of Quebec, the Solicitor-General, and niaj^, by Order 
 of the Lieutenant-Governor-in-Council from Time to Time 
 prescribe the Duties of those Officers and of the se^■eral 
 Departments over wliich they shall preside, or to which 
 they shall belong, and of the Officers and Clerks thereof, 
 and may also appoint other and additional Officers to hold 
 Office during Pleasure, and may from Time to Time pre- 
 scribe the duties of those Officers, and of the several 
 Departments over which they sliall preside or to which 
 they shall belong, and of the Officers and Clerks thereof. 
 
 135. Until the Legislature of Ontario or Quebec other- Powers, 
 wise provides, all Pughts, Powers, Duties, Functions, Re-^^g'^g^^*''-' 
 sponsibilities, or Authorities at the passing of this Act tive officere. 
 vested in or imposed on the Attorney-General, Solicitor- 
 General, Secretary and Registrar of the Province of Canada, 
 Minister of Finance, Commissioner of Crown Lands, Com- 
 missioner of Public Works and Minister of Agriculture 
 
 and Receiver-General, by any Law, Statute or Ordinance 
 of Upper Canada, Lower Canada, or Canada, and not 
 repugnant to this Act, shall be vested in or imposed on any 
 orticcr to Ijc appointed l»y the Lieutenant-Governor for the 
 Discharge of the same or any of them ; and the Commis- 
 sioner of Agricultuie and Public "Works shall perform the 
 Duties and Functions of the Office of Minister of Agricul- 
 ture at the passing of this Act imposed by the Law of the 
 Province of Canada, as well as those of the Commissioner 
 of Pubhc Works. 
 
 1.''>G. Until altered by the Lieutenant-Governor in-Coun-oic,it 
 cil, the Great Seals of Ontario and Quoljec, respectively, •'''^*''*- 
 shall be the same or of the same Design, as those used in 
 the Provinces of Upper Canada and Lower Canad?l respec- 
 tively before their Union as the Province of Canada. 
 
 137. The words "and from tlipnce to the End of the construe- 
 then next enstn'ng Session of the riOgislaturo." or '^^■•"'•ls[l!J",,','[rary 
 to the same efiect used in any temporary Act of the Pro- Acts.
 
 220 
 
 APPENDIX. 
 
 As to errors 
 in names. 
 
 As to issue 
 of Procla- 
 mations 
 before 
 Union, to 
 commence 
 after 
 Union. 
 
 As to issue 
 of Proola- 
 mations 
 after 
 Union. 
 
 Peniten- 
 tiary. 
 
 Arbitration 
 respecting 
 debts, &c 
 
 vince of Canada not expired before the Union, shall be 
 construed to extend and apply to the next Session of the 
 Parliament of Canada, if the subject-matter of the Act is 
 within the powers of the same as defined by this Act, or 
 to the next Sessions of the Legislatures of Ontario and 
 Quebec respectively, if the subject-matter of the Act is 
 within the powers of the same as defined by this Act. 
 
 138. From and after the Union, the use of the words 
 "Upper Canada" instead of "Ontario," or "Lower Can- 
 ada " instead of " Quebec," in any Deed, Writ, Process, 
 Pleading, Document, Matter or Thing, shall not- invalidate 
 the same. 
 
 139. Any Proclamation under the Great Seal of the 
 Province of Canada, issued before the Union, to take effect 
 at a time w^hich is subsequent to the Union, whether re- 
 lating to that Province or to Upper Canada, or to Lower 
 Canada, and the several matters and things therein pro- 
 claimed, shall be and continue of like force and effect as 
 if the Union had not been made. 
 
 140. Any Proclamation which is authorized by any Act 
 of the Legislature of the Province of Canada, to be issued 
 under the Great Seal of the Province of Canada, whether 
 relating to that Province or to Ui^per Canada, or to Lower 
 Canada, and which is not issued before the Union, may 
 be issued by the Lieutenant-Governor of Ontario or of 
 Quebec, as its subject-matter requires, under the Great 
 Seal thereof ; and from and after the issue of such Procla- 
 mation, the same and the several matters and things 
 therein proclaimed, shall be and continue of the like force 
 and effect in Ontario or Quebec as if the Union had not 
 been made. 
 
 141. The Penitentiary of the Province of Canada shall, 
 until the Parliament of Canada otherwise provides, be 
 and continue the Penitentiary of Ontario and of Quebec. 
 
 142. The Division and Adjustment of the Debts, Credits, 
 Liabilities, Properties and Assets of Upper Canada and 
 Lower Canada shall be referred to the Arbitrament of 
 Three Arbitrators, One chosen by the Government of 
 Ontario^ One by the Government of Quebec, and One by 
 the Government of Canada ; and the Selection of the Ar- 
 bitrators shall not be made until the Parliament of Canada 
 and the Legislatures of Ontario and Quebec have met ; 
 and the Arbitrator chosen by the Government of Canada 
 shall not be a resident either in Ontario or in Quebec.
 
 BRITISH NORTH AMERICA ACT. 221 
 
 143. The ,Governor-General-in-Council may from Time to Division of 
 Time, order that such and so many of the Records, Books, '■^"°''^ 
 and Documents of the Province of Canada as he thinks lit 
 
 shall be appropriated and delivered either to Ontario or to 
 Quebec, and the same shall thenceforth be the property of 
 that Province ; and any copy tliereof or extract therefrom, 
 duly certified by the officer having charge of the original 
 thereof shall be admitted as Evidence. 
 
 144. The Lieutenant-Governor of Quebec may from Time constitu- 
 to Time, by Proclamation under the Great Seal of the Jjj°^.'jj°[j;pg 
 Province, to take effect from a day to be appointed therein, in Quebec. 
 constitute Townships in tliose Parts of the Province of 
 Quebec in which Townships are not then already consti- 
 tuted, and fix the Metes and Bounds thereof. 
 
 X. INTERCOLONIAL RAILWAY. 
 
 1 45. Inasmuch as the Provinces of Canada, Nova Scotia, Duty of 
 and New Brunswick have joined in a Declaration that the ment and 
 Construction of the Intercolonial Railway is essential to P|'^^'^^'^'«^'' 
 the Consolidation of the Union of British North America, to make 
 and to the Assent thereto of Nova Scotia and New Bruns- ^er^Z^ 
 wick, and have consequently agreed that Provision should described. 
 be made for its immediate construction by the Government 
 
 of Canada: Therefore, in order to give effect to that Agree- 
 ment, it shall be the Duty of the Government and Parlia- 
 ment of Canada to provide for the Commencement, within 
 Six months after the Union, of a Railway connecting the 
 River St. Lawrence with the City of Halifax in Nova 
 Scotia, and for the Construction thereof without Inter- 
 mission, and the Completion thereof with all practicable 
 Speed. 
 
 XI. — ADMIS.SION OF OTHER COLONIES. 
 
 146. It shall be lawful for the Queen, by and with t'^ie Power to ^ 
 Advice of Her Majesty's Most Honourable Privy Council, fomidiand, 
 on Address<'3 from tlio Houses of the Parliament of Can- *^c^.j|j';^'.o^_ 
 ada, and from the Houses of the respective Legislatures 
 
 of the Colonie.s or Provinces of Newfoundland, Prince 
 Eilward Island, and British Coluiii1)ia, to admit those 
 Colonies or Provinces, or any of tliem, into the Union, 
 and on A<ldr<Hs from the Houses of the Parliament of 
 Cana/Ia, to admit Pvupcrt's I^and and the North-western 
 Territory, or eithfr of them, into the Union, on such 
 Ttrms an«l Gondii Tons in each Case as are in the Ad- 
 dresses expressed and as the Queen thinks fit to aj)prove, 
 subject to the Provisions of tliis Act ; and the Provisions
 
 222 
 
 APPENDIX. 
 
 A3 to 
 Repre- 
 sentation 
 of New- 
 foundland 
 and Prince 
 Edward 
 Island in 
 Senate. 
 
 of any Order-in-Council in that Behalf shall have effect as 
 if they had been enacted by the Parliament of the United 
 Kingdom of Great Britain and Ireland. 
 
 147. In case of the Admission of Newfoundland and 
 Prince Edward Island or either of them, each shall be 
 entitled to a Representation, in the Senate of Canada, of 
 Four Members, and (notwithstanding anything in this Act) 
 in case of the Admission of Newfoundland, the Normal 
 Number of Senators shall be Seventy-six and their Maximum 
 Number shall be Eighty-two ; but Prince Edward Island, 
 when admitted, shall be deemed to be comprised in the 
 third of the three Divisions into which Canada is, in 
 relation to the Constitution of the Senate, divided by this 
 Act, and accordingly, after the admission of Prince Edward 
 Island, whether Newfoundland is admitted or not, the 
 Representation of Nova Scotia and New Brunswick in the 
 Senate shall, as Vacancies occur, be reduced from Twelve 
 to Ten Members respectively, and the Representation of 
 each of those Provinces shall not be increased at any Time 
 beyond Ten, except under the Provisions of this Act, for 
 the Appointment of Thi-ee or Six additional Senators under 
 the Direction of the Queen. 
 
 SCHEDULES. 
 
 THE FIRST SCHEDULE. 
 
 Electoral Districts of Ontario. 
 
 A. 
 
 EXISTING ELECTORAL DIVISIONS. 
 
 COUNTIES. 
 
 1. Prescott. 
 
 2. Glengarry. 
 
 3. Stormont. 
 
 4. Dundas. 
 
 5. Ptussell. 
 
 6. Carleton. 
 
 7. Prince Edward. 
 
 8. Halton. 
 
 9. Essex. 
 
 RIDINGS OF COUNTIES. 
 
 1 0. North Riding of Lanark. 
 
 11. South Ridinic of Lanark.
 
 BRITISH NORTE AMERICA ACT. 223 
 
 12. Xoi'th Riding of Leeds and North Riding of Gren- 
 
 ville. 
 
 13. South Riding of Leeds. 
 
 14. South Riding of Grenville. 
 
 15. East Riding of Northumbei'land. 
 
 16. West Riding of Northumberland (excepting there- 
 
 from the Township of South Monaghan). 
 
 17. East Riding of Durham. 
 
 18. West Riding of Durham. 
 
 19. North Riding of Ontario. 
 
 20. South Riding of Ontario. 
 
 21. East Riding of York. 
 
 22. West Riding of York. 
 
 23. North Riding of York. 
 
 24. North Riding of Wentworth. 
 
 25. South Riding of Wentworth. 
 
 26. East Riding of Elgin. 
 
 27. West Riding of Elgin. 
 
 28. North Riding of Waterloo. 
 
 29. South Riding of Waterloo. 
 
 30. North Riding of Brant. 
 
 31. South Riding of Brant. 
 
 32. North Riding of 0.x ford. 
 
 33. South liiding of Oxford. 
 
 34. East Riding of Middlesex. 
 
 CITIF.S, PARTS OF CITIES AND TOWN'S. 
 
 35. West Toronto. 
 
 36. East Toronto. 
 
 37. Hamilton. 
 
 38. Ottawa. 
 
 39. Kingston. 
 
 40. l/m<\<m. 
 
 41. Town of Bntckvillo, with the Township of Elizabeth- 
 
 t<fwn thereto attaclifd. 
 
 42. Town of Niagara, with tho Township of Niagara 
 
 thereto attached. 
 
 43. Town of Cornwall, with tho Township of Cornwall 
 
 theret^j attached. 
 
 B. 
 
 Ni:w KLFXTOIIAL DIVISIONS. 
 
 44. The Provi.sional Judicial District of Algonia.
 
 224 APPENDIX. 
 
 The County of Bruce, divided into Two Ridings, to be 
 called respectively the North and South Piidings : — 
 
 45. The North Riding of Bruce to consist of the Town- 
 ships of Bury, Lindsay, Eastnor, Albemarle, Ama- 
 bel, Arran, Bruce, Elderslie, and Saugeen, and the 
 "Village of Southampton. 
 
 46. The South Riding of Bruce to consist of the Town- 
 ships of Kincai'dine (including the Village of Kin- 
 cardine), Greenock, Brant, Huron, Kinloss, Culross, 
 and Carrick. 
 
 The County of Huron, divided into Two Ridings, to be 
 called respectively the North and South Ridings : — 
 
 47. The North Riding to consist of the Townships of 
 Ashfield, Wawanosh, Turnberry, Howick, Morris, 
 Grey, Colborne, Hullett (including the Village of 
 Clinton), and McKillop. 
 
 48. The South Riding to consist of the Town of Goder- 
 ich, and the townships of Goderich, Tuckersmith, 
 Stanley, Hay, Usborne, and Stephen. 
 
 The County of Middlesex, divided into Three Ridings, 
 to be called respectively the North, West and East 
 Ridings : — 
 
 49. The North Riding to consist of the Townships of 
 McGiilivray and Biddulph (taken from the County 
 of Huron), and Williams East, Williams West, 
 Adelaide and Lobo. 
 
 50. The West Riding to consist of the Townships of 
 Delaware, Caradoc, Metcalfe, Mosa and Ekfrid, and 
 the Village of Strathroy. 
 
 [The East Riding to consist of the Townships now 
 embraced therein, and be bounded as it is at pre- 
 sent.] 
 
 51. The County of Lambton to consist of the Townships 
 of Bosanquet, Warwick, Plympton, Sarnia, Moore, 
 Enniskillen and Brooke, and the Town of Sarnia. 
 
 52. The County of Kent to consist of the Townships of 
 Chatham, Dover, East Tilbury, Romney, Raleigh 
 and Harwich, and the Town of Chatham.
 
 BEITISH NORTH AMERICA ACT. 225 
 
 53. The County of Both well to consist of the Town- 
 ships of Sombra, Dawn and Euphemia (taken 
 from the County of Lambton), and the Town- 
 ships of Zone, Camden with the Gore thereof, 
 Orford and Howard (taken from the County of 
 Kent). 
 
 The County of Grey, divided into Two Ridings, to be 
 called respectively the South and North Ridings : — 
 
 5-i. Tlie South Riding to consist of the Townships of 
 Bentinck, Glenelg, Arteinesia, Osprey, Normanby, 
 Eirremont, Proton and Melancthon. 
 
 55. The North Riding to consist of the Townships of 
 Collingwood, Euphrasia, Holland, St. Vincent, 
 Sydenham, Sullivan, Derby and Keppel, Sarawak 
 and Brooke, and the Town of Owen Sound. 
 
 The County of Perth, divided into Two Ridings, to be 
 called respectively the South and North Ridings : — 
 
 56. Tlie North Riding to consist of the Townships of 
 Wallace, Elma, J^ogan, Ellice, Mornington, and 
 North Easthope, and the Town of Stratford. 
 
 57. The South Riding to consist of the Townships of 
 Blancliard, Downie, South Easthope, Fullarton, 
 Hibbert, and the Villages of Mitchell and St. 
 Marys. 
 
 The County of Wellington, divided into Three Ridings, 
 to be called respectively North, South and Centre Rid- 
 ings :— 
 
 58. The North Rifh'ng to consist of the Townships of 
 Amaranth, Arthur, Lutlior, Miiito, Maryborough, 
 Peel, and the Village of Mount Forest. 
 
 59. The Centre Riding to consist of the Townships of 
 (ianifraxa, Kv\u, Hramosa, Nicliol and I'ilkington, 
 and tiie Villagfs of Fergus and Flora. 
 
 CO. Tho Soudi I{i<iiiig to consist of (he 'I'owii of (Juclph 
 and llif Townships of Guclph and Pusiinch. 
 
 The County of Nohkolk. ilividcd into 'i'wo Ridings, to 
 be called respfctivcly the South Hn<l North Ridings: —
 
 226 APPENDIX. 
 
 61. The South Riding to consist of the Townships of 
 Charlotteville, Houghton, Walsingham and Wood- 
 house, and with the Gore thereof. 
 
 62. The North Riding to consist of the Townships of 
 Middleton, Townsend and Windham, and the Town 
 of Simcoe. 
 
 63. The County of Haldimand to consist of the Town- 
 ships of Oneida, Seneca, Ca3"uga North, Cayuga 
 South, Rainham, Walpole and Dimn. 
 
 64. The County of Monck to consist of the Townships 
 of Canborough and Moulton, and Sherbrooke, and 
 the Village of Dunnville (taken from the County of 
 Haldimand), the Townships of Caister and Gains- 
 borough (taken from the County of Lincoln), and 
 the Townships of Pelham and Wainfleet (taken 
 from the County of Welland). 
 
 65. The County of Lincoln to consist of the Townships 
 of Clinton, Grantham, Grimsby and Louth, and the 
 Town of St. Catharines. 
 
 66. The County of Welland to consist of the Town- 
 ships of Bertie, Crowland, Humberstone, Stam- 
 ford, Thorold and Willoughby, and the Villages 
 of Chippewa, Clifton, Fort Erie, Thorold and 
 Welland. 
 
 67. The County of Peel to consist of the Townships of 
 Chinguacousy, Toronto, and the Gore of Toronto, 
 and the Villages of Brampton and Streetsville. 
 
 68. The County of Cardwell to consist of the Town- 
 ships of Albion and Caledon (taken from the County 
 of Peel), and the Townships of Adjala and Mono 
 (taken from the Count}^ of Simcoe). 
 
 The County of Simcoe, divided into Two Ridings, to be 
 called respectively the South and the North Ridings : — 
 
 69. The South Riding to consist of the Townships of 
 West Gwillimbury, Tecumseth, Innisfil, Essa, Tos- 
 sorontio, Mulmur, and the Village of Bradford. 
 
 70. The North Riding to consist of the Townships of 
 Nottawasaga, Sunnidale, Vespra, Flos, Oro, Me- 
 donte, Orillia and Matchedash, Tin}^ and Tay,
 
 BRITISH NOBTH AMERICA ACT. 227 
 
 Balaklava and Robinson, and the Towns of Barrie 
 and Collingwood. 
 
 The County of Victoria, divided into Two Ridings, to 
 be called respectively the South and North Ridings : — 
 
 71. The South Riding to consist of the Townships of 
 Ops, Mariposa, Emily, Verulam, and the Town of 
 Lindsay. 
 
 72. The North Riding to consist of the Townships of 
 Anson, Bexle}', Garden, Dal ton. Dig by, Eldon, 
 Fenelon, Hindon, Laxton, Lutterworth, Macaulay 
 and Draper, Sommerville and Morrison, Muskoka, 
 Monck and Watt (taken from the County of Sim- 
 coe), and any other surveyed Townships lying to 
 the North of the said North Riding. 
 
 "O" 
 
 The County of Peterborough, divided into Two 
 Ridings, to be called respectively the West and East 
 Ridinsrs : — 
 
 ■■£3- 
 
 73. The West Riding to consist of the Townships of 
 South INIonaghan (taken from the County of Nor- 
 thumberland), North Monaghan, Smith and Ennis- 
 more, and the Town of Peterborough. 
 
 74. The East Riding to consist of the Townships of 
 Asphodel, Ijelmont and IMethuen, Douro, Dummer, 
 G.ihvay, Harvey, Minden, Stanhope and l^ysart, 
 Otonaboe and Snowden, and the Village of Ash- 
 burnham, an<l any other surveyed Townships lying 
 to the Nortli of the said East Riding. 
 
 Tlie county of irAsriNOS, divided into Three Ridings, 
 to be called respectively the West, East and North Rid- 
 ings :— 
 
 75. The Wf'.st Riding to consist of the Town of Belle- 
 ville, the Township of Sydney, and the Village of 
 Trenton. 
 
 70. Tht; East Riding to consist of the Townships of 
 Thurlow, Tyenflinaga and Hungcrford. 
 
 77. The North I'iding to consist of the Towjiships of 
 Rawdon, Huntingdon, Madoc, Elzevir, Tudor, Mar-
 
 228 APPENDIX. 
 
 mora and Lake, and the Village of Stirling, and 
 any other surveyed Townships lying to the North 
 of the said North Riding. 
 
 78. The County of Lennox to consist of the Townships 
 of Richmond, Adolphustown, North Fredericks- 
 burgh, South Fredericksburgh, Ernest Town and 
 Amherst Island, and the Village of Napanee. 
 
 79. The County of Addington to consist of the Town- 
 ships of Camden, Portland, Sheffield, Hinchin- 
 brooke, Kaladar, Kennebec, Olden, Oso, Anglesea, 
 Barrie, Clarendon, Palmerston, Effingham, Abinger, 
 Miller, Canonto, Denbigh, Loughborough and 
 Bedford. 
 
 80. The County of Frontenac to consist of the Town- 
 ships of Kingston, Wolfe Island, Pittsburgh and 
 Howe Island and Storrington. 
 
 The County of Renfrew, divided into Two Ridings, to 
 be called respectively the South and North Ridings : — 
 
 81. The South Riding to consist of the Townships of 
 McNab, Bagot, Blithfield, Brougham, Horton, 
 Admaston, Grattan, Matawatchan, Griffith, Lyn- 
 doch, Raglan. Radcliffe, Brudenell, Sebastopol, and 
 the Villages of Arnprior and Renfrew. 
 
 82. The North Riding to consist of the Townships of 
 
 Ross, Bromley, Westmeath, Staffiord, Pembroke, 
 "Wilberforce, Alice, Petawawa, Buchanan, South 
 Algona, North Algona, Fraser, McKay, Wylie, 
 Rolph, Head, Maria, Clara, Haggerty, Sherwood, 
 Burns, and Richards, and any other surveyed 
 Townships lying North-westerly of the said North 
 Riding. 
 
 Every Town and incorjjorated Village existing at the 
 Union, not specially mentioned in this Schedule, is to be 
 taken as part of the County or Riding within which it is 
 locally situate.
 
 BRITISH NORTH AMERICA ACT. 
 
 229 
 
 THE SECOND SCHEDULE. 
 
 Electoral Districts of Quebec sjjecially fixed. 
 
 COUNTIES OF 
 
 Pontiac. 
 
 Ottawa. 
 
 Argenteuil. 
 
 Huntingdon. 
 
 Missisquoi. 
 
 Brome. 
 
 Shefford. 
 
 Stanstead, 
 
 Compton. 
 
 Wolfe and Richmond. 
 
 Megan tic. 
 
 Town of Sherbrooke. 
 
 THE THIRD SCHEDULE. 
 
 Provincial Public Works and Property to be the Property 
 
 of Canada. 
 
 1. Canals with Lands and Water Power connected 
 therewith. 
 
 2. Public Harbours. 
 
 3. Lighthouses and Piers, and Sable Island. 
 
 4. Steamboats, JJredges, and Public Vessels. 
 
 5. Rivers and Lake Improvements. 
 
 G. Railways and Railway Stocks, Mortgages and other 
 Debts due by Railway Companies. 
 
 7. Military Roads. 
 
 8. Custom Houses, Post Offices, and all other Public 
 Buildings, except such as the Government of Can- 
 ada appropriate for the use of the Provincial 
 Legislatures and Governments. 
 
 9. Pro[ierty transferred by the Imperial Government, 
 ami known as Ordnance Property. 
 
 10. Armouries, Drill Sheds, Military Clothing and 
 ]\ruiiiti(»tiH of War, and Land.s set apart for General 
 Public I'urpfjses. 
 
 TIIK KOl'KTIf SrHKIiULE. 
 
 An-ifts to he tfie I'rftperly of Ontario aiid Qtiebec conjointly. 
 
 Upper Canada Building Fund. 
 Lunatic Asylums.
 
 230 APPENDIX. 
 
 Lower Canada. 
 
 Normal Schools. 
 
 Court Houses in :" 
 
 Aylmer. 
 
 Montreal. 
 
 Kamouraska. 
 
 Law Society, Upper Canada. 
 
 Montreal Turnpike Trust. 
 
 University Permanent Fund. 
 
 Royal Institution. 
 
 Consolidated Municipal Loan Fund, Upper Canada. 
 
 Consolidated Municipal Loan Fund, Lower Canada. 
 
 Agricultural Society, Upper Canada. 
 
 Lower Canada Legislative G-rant. 
 
 Quebec Fire Loan. 
 
 Temiscouata Advance Account. 
 
 Quebec Turnpike Trust. 
 
 Ed u cation — East. 
 
 Building and Jury Fund, Lower Canada. 
 
 Municipalities Fund. 
 
 Lower Canada Superior Education Income Fund. 
 
 THE FIFTH SCHEDULE. 
 OATH OF ALLEGIANCE. 
 
 I, A. B., do swear that I will be faithful and bear true 
 Allegiance to Her Majesty Queen Victoria. 
 
 Note. — The Name of the King ur Queen of the United Kingdom of 
 Cheat Britain and Ireland for the Time being is to be substituted from 
 Time to Time, vnth proper Terms of Reference thereto. 
 
 DECLARATION OF QUALIFICATION. 
 
 I, A. B., do declare and testify, That I am by Law duly 
 qualified to be appointed a Member of the Senate of 
 Canada \or as the case may he\, and that I am legally or 
 equitably seized as of Freehold for my own Use and 
 Benefit of Lands or Tenements held in Free and Common 
 Socage \or seized or possessed for my own Use and Benefit 
 of Lands or Tenements held in Franc-alleu or in Roture 
 («s the case may be), in the Pro\'ince of Nova Scotia [or as 
 the case may he], of the Value of Four Thousand Dollars 
 over and above all Rents, Dues, Debts, Mortgages, Charges, 
 and Incumbrances, due and payable out of or charged on 
 or afiecting the same, and that I have not collusively or
 
 BRITISH NORTH AMERICA ACT. 231 
 
 colourably obtained a title to or become possessed of the 
 said Lands and Tenements or any Part thereof for the 
 Purpose of enabling me to become a Member of the Senate 
 of Canada [or as the case may 6e], and that my Real and 
 Personal Property are together worth Four Thousand 
 Dollars over and above my Debts and Liabilities. 
 
 B. 
 
 34-35 VICTORIA. 
 
 CHAP. XXVIII. 
 
 An Act respecting the establishment of Provinces in the Dominion of 
 Canada. 
 
 [29th June, 1871.] 
 
 WHEREAS doubts have been entertained respecting 
 the powers of the Parliament of Canada to establish 
 Provinces in Territories admitted, or which may hereafter 
 h>e admitted into the Dominion of Canada, and to provide 
 for the representation of such Provinces in the said Parlia- 
 ment, and it is expedient to remove such doubts, and to 
 vest such powers in the said Parliament : — 
 
 Be it enacted by the Queen's most excellent Majesty, by 
 and with the advice and consent of the Lords Spiritual 
 and Temporal and Commons, in this present Parliament 
 assembled, and by the authority of the same, as follows : 
 
 1. This Act may be cited for all purposes as "The British Short Titla 
 North America Act, 1871." 
 
 2. The Parliament of Canada may from Time to Time parliament 
 establish new Provinces in any Territories forming for the "l^*^.*^!!^'^* 
 time being part of the Dominion of Canada, V)ut not in- lisii new 
 cludetl in any Province thereof, and may, at the time of ^^,"^[1^1',"^^?^^ 
 such establi.slimeiit, make provision for the constituticm forthe con- 
 and a/lininistration of any such Province, and for the&c., ihtr'cot 
 passing of Ijaws for the peace, order and gf)od government 
 
 of such Province, and f(jr its representation in the said 
 Parliament. 
 
 3. The Parliament of Canada may from Time to Time, Aitoraiion 
 with the consent of the Legislature of any Province of the "/ '■'V'''' "' 
 
 J I'll ro» iiici.(j. 
 
 saifl Dominion, inerea-se, dnninish, or otherwise alter the 
 
 limits of such Province, upon such terms and conditions 
 
 as may l^r ngreed to by the .said JjCgislature, and tnay, 
 
 with the like consent, make provision respecting the efiect
 
 232 
 
 APPENDIX. 
 
 and operation of any such increase or diminution or altera- 
 tion of Territory in relation to any Province affected 
 thereby. 
 
 Parliament 
 of Canada 
 may legis- 
 late for any 
 
 4. The Parliament of Canada may from Time to Time 
 make provision for the administration, peace, order, and 
 
 territory not good government of any Territory not for the time being 
 Provfncl'"^ included in any Province. 
 
 5. The following Acts passed by the said Parliament of 
 Canada, and intituled respectively : "An Act for the teui- 
 "porary government of Rupert's Land and the North 
 " Western Territory when united with Canada," and " An 
 " Act to amend and continue the Act thirty-two and 
 " thirty-three Victoria, chapter three, and to establish and 
 " provide for the government of the Province of Manitoba," 
 shall be and be deemed to have been valid and effectual for 
 all purposes whatsoever from the date at which they re- 
 spectively received the assent, in the Queen's name, of the 
 Governor-General of the said Dominion of Canada. 
 
 Confirma- 
 tion of 
 Acts of Par- 
 liament of 
 Canada, 32 
 & 33 Vict. 
 (Canadian) 
 cap. 3, 33 V. 
 (Canadian), 
 cap, 3. 
 
 Limitation 
 of powers 
 of Parlia- 
 ment of 
 Canada to 
 legislate 
 for an 
 established 
 Province. 
 
 6. Except as provided by the third section of this Act, 
 it shall not be competent for the Parliament of Canada to 
 alter the provisions of the last mentioned Act of the said 
 Parliament, in so far as it relates to the Province of Mani- 
 toba, or of any other Act hereafter establishing new 
 Pz'ovinces in the said Dominion, subject always to the 
 right of the Legislature of the Province of Manitoba to 
 alter from Time to Time the provisions of any law re- 
 specting the qualification of electors and members of the 
 Legislative Assembly, and to make laws respecting elections 
 in the said Province. 
 
 38-39 VICTORIA. 
 
 30 and 31 
 Vict., c. 3. 
 
 CHAP. XXXVIII. 
 
 An Act to remove certain doubts ivith respect to the potvers of the Par- 
 liament of Canada under Section Eighteen of the British North 
 America Act, 1867. 
 
 [IWi July, 1875. 
 
 WHEPvEAS by Section Eighteen of the British North 
 America Act, 1867, it is provided as follows : — 
 
 " The privileges, immunities and powers to be held, 
 "enjoyed and exercised by the Senate and by the House 
 " of Commons, and by the Members thereof respectively,
 
 PARLIAMENT OF CANADA ACT. 233 
 
 " shall be such as are from time to time defined by Act of 
 "the Parliament of Canada, but so that the same shall 
 "never exceed those at the passing of this Act, held, 
 "enjoyed and exercised by the Commons House of Par- 
 " liament of the United Kingdom of Great Britain and 
 " Ireland and by the members thereof." 
 
 And whereas doubts have arisen with regard to the 
 power of defining by an Act of the Parliament of Canada, 
 in pursuance of the said section, the said privileges, powers, 
 or immunities : and it is expedient to remove such doubts : 
 
 Be it, therefore, enacted by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, as 
 follows : — 
 
 1. Section eighteen of the British North America Act, Substitu- 
 1867, is hereby repealed without prejudice to anything s^"tion"or 
 done under that action, and the following section shall be ^f'r*'""^,^ 
 
 1 • 1 c 1 • IT of 30 & 31 
 
 substituted tor the section so repealed. vict.,c. a. 
 
 The privileges, immunities and powers to be held, en- 
 joyed and exercised l)y the Senate and by the House of 
 Commons, and by the Members thereof, respectively, shall 
 be such as are from time to time defined by Act of the 
 Parliament of Canada, but so that any Act of the Parlia- 
 ment of Canada defining such privileges, immunities and 
 powers shall not confer any privileges, immunities or 
 powers exceeding those at the passing of such Act, held, 
 enjoyed and exercised by the Commons House of Parlia- 
 ment of the United Kingdom of Great Britain and Ireland 
 and by the Memljers thereof. 
 
 2. Tlie Act of the Parliament of Canada passed in the Confirma- 
 thirty-first year of the Keign of Her present Majesty, o"".,"fa^°* 
 chapter twenty-four, intituled "An Act to provide fui'<ii:in Par- 
 oaths to witnesses being .'uhninistered in certain cases for 
 
 the jiurposes of eitlier House of Parliament," shall be 
 deemed U) be valid, and to have been valid as from the 
 flate at which the Ttoyal assent was given thereto b}' the 
 Governor-General of the Dominion of Canada. 
 
 3. Tills Act may be cited as "The Parliament of Canada 
 Act, 1875."
 
 234 
 
 APPENDIX. 
 
 D. 
 
 49-50 VICTORIA. 
 
 A.D. 1886. 
 
 Provision 
 by Parlia- 
 ment of 
 Canada for 
 represent- 
 ation of 
 Territories. 
 
 EiTect of 
 Acts of 
 Parliament 
 of Canada. 
 
 34 and 35 
 Victoria, 
 c. 28. 
 
 30 and 31 
 Victoria, 
 c. 3. 
 
 CHAP. XXXV. 
 
 An Act' respecting the Representation in the Parliament of Canada 
 of Territories which for the time beinr/ form part of the Dominion 
 of Canada, hut are not included in any Province. 
 
 \2bth June, 1886.] 
 
 WHEREAS it is expedient to empower the Parliament 
 of Canada to provide for the representation in the 
 Senate and House of Commons of Canada or either of 
 them, of any Territory which for the time being forms part 
 of the Dominion of Canada, but is not included in any 
 province. 
 
 Be it therefore enacted by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the Lords 
 Spiritual and Temporal, and Commons, in this present 
 Parliament assembled, and by the authority of the same, as 
 follows : — 
 
 1. The Parliament of Canada may, from time to time, 
 make provisions for the representation in the Senate and 
 House of Commons of Canada, or in either of them, of any 
 Territories which for the time being form part of the 
 Dominion of Canada, but are not included in any province 
 thereof. 
 
 2. Any Act passed by the Parliament of Canada before 
 the passing of this Act for the pui-pose mentioned in this 
 Act shall, if not disallowed by the Queen, be, and shall be 
 deemed to have been, valid and effectual from the date at 
 w^hich it received the assenc, in Her Majesty's name, of the 
 Governor-General of Canada. 
 
 It is hereby declared that any Act passed by 'the Parlia- 
 ment of Canada, whether before or after the passing of this 
 Act, for the purpose mentioned in this Act or in the 
 British North America Act, 1871, has effect, notwith- 
 standing anything in the British North America Act. 
 1867, and the number of Senators or the number of 
 members of the House of Commons specified in the last 
 mentioned Act is increased by the number of Senators or 
 of members, as the case may be, provided by any such Act 
 of the Parliament of Canada for the representation of any 
 provinces or territories of Canada.
 
 BRITISH NORTH AMERICA ACT. 235 
 
 3. This Act may be cited as the British North America ^^%^ *'*'* 
 
 1 aon con- 
 
 Act, 1886, struction. 
 
 This Act and the British North America Act, 1867, and?" and 31 
 
 Victoria 
 
 the British North America Act, 1871, shall be construed c. 3. 
 together and may be cited together as the British North ^^j^^^^j^^ 
 America Acts, 1867 to 1886. c. 28. '
 
 ANALYTICAL INDEX. 
 
 [The references in all caseJi, except the British North America Act of 1S67, 
 
 are to pages.] 
 
 A. 
 
 Agkiculture, department of, 54. 
 
 Agriculture, concurrent powers of parliament and legislatures respecting, 82. 
 
 Amherst, Sir Jeffery ; first go%-ernor-general of Canada, 7, n. 
 
 Appendix to this work : British North America Act (1867), 191 ; an act 
 respecting the estahlishment of provinces in the Dominion of Canada 
 (34-35 Vict., c. 28), 231 ; an act to remove doubts with respect to the 
 powers of the parliament of Canada under s. 18 of the B. N. A. Act 
 (38-39 Vict., c. 38), 232; an act respecting the representation of the 
 Territories in the Dominion parliament (49-50 Vict., c. 35), 234. 
 
 Authorities cited in this book, list of ; ix-xii. 
 
 B. 
 
 Blake, Hon. Edward ; obtains modifications in letters-patent and instructions 
 to governor-general, 50, n. 
 
 Boundary Award ; character of the controversy between Ontario and tlie 
 Dominion, 77 ; decision of the privy council, 78. 
 
 British Columbia. See Columbia^ British. 
 
 British North America Act, 1SG7 (Appendix A of this work ; following figiires 
 refer to sections of the act) : preliminary, 1-2 ; union, 3-8 ; executive 
 power, 9-lG; constitution of parliament, 17-20; of the senate, 21-.SG ; 
 of the house of commons, 37-52 ; money votes, 53-54 ; royal assent and 
 disallowance and reservation of bills, 55-57 ; provincial constitutions : 
 executive power, 58-G8 ; legislative power, in Ontario, GO-70 ; in (,>iil'- 
 bec, 71-80; legislatures of Ontario and Quebec, summoned, continuance 
 of election laws, etc., 81-87; constitutions of Nova Scotia and New 
 lirun.Hwick, 81 ; first elections in provinces, 89; application to legisla- 
 tures of provinces rcHj)ecting money votes, etc., 90; distribution of 
 legislative powers : of parliament, 91 ; of provincial legislatures, \Y1 ; 
 education, 93 ; uniformity of laws in Ontario, Nova Scotia and New 
 Bninswick, 94; agriculture and immigration, 95; judicatun-, 9G-1()1 ; 
 revenues, debts, assets, taxation, 102-12G; miscellaneous provisions: as 
 to legislative councillors of provinces becoming senators, 127 ; oatii of 
 
 237
 
 238 ANALYTICAL INDEX. 
 
 allegiance, how administered, 128; continuance of existing laws, courts, 
 oflScers, etc., 129; transfer of officers to Canada, 130; appointment of 
 new officers, 131 ; treaty obligations, 132 ; use of English and French 
 languages, 133 ; appointment of executive officers for Ontario and 
 Quebec, 134 ; powers and duties of executive officers, 135 ; great seals, 
 136 ; construction of temporary acts, 137 ; as to errors in names, 138 ; 
 as to issue of proclamations before union, to commence after union, 139; 
 as to issue of proclamations after union, 140 ; penitentiary, 141 ; arbi- 
 tration respecting debts, 142 ; division of records, 143 ; constitution of 
 townships in Quebec, 144 ; Intercolonial railway, 145 ; admission of 
 other colonies, 146-147 ; Schedules ; I, electoral districts of Ontario ; 
 II, electoral districts of Quebec ; III, provincial public works and 
 property to be the property of Canada ; IV, assets to be the property of 
 Ontario and Quebec conjointly ; V, oath of allegiance and declaration of 
 qualification. Acts in amendment thereof : an act respecting estab- 
 lishment of provinces (App. B ), 231 ; an act to remove doubts as 
 to powers of Canadian parliament (App. C), 232 ; an act respecting 
 representation of Territories (App. D), 234. 
 
 c. 
 
 Cabinet ; meaning of, 52. 
 
 Canada Temperance Act. See Temperance Act. 
 
 Cape Breton, island of ; ceded to Great Britain, 68, n. ; under government of 
 
 Nova Scotia, ib. 
 Capitulation of Canada ; terms of, in 1760, 5. 
 Census of Canada; in 1760-'90, 14, n. ; in 1775, ib. j in 1839-44, 37, n. ; 
 
 representation of provinces in Dominion parliament regulated by, 60, 61. 
 Chatham, Earl of ; opposes Quebec Act, 10. 
 Civil Code in province of Quebec, 150. 
 Civil List ; control of, 28, 34. 
 Civil Service ; legislation respecting, 33, 34. 
 Clergy Reserves ; their origin, 19 ; question of, settled, 31, 32. 
 Colborne, Sir John ; administrator, 23 ; establishes rectories, 32. 
 Colonies of British North America ; responsible government in, 28-30, 68-72. 
 Columbia, British ; admission of, as province, 46 ; constitution of, 72, 73. 
 Common Law of England ; in use in Canada, 1 50. 
 Commons, House of ; constitution of, 60 ; representation therein, 60, 61 ; 
 
 franchise for elections, 61 ; duration of, 61, 62 ; powers and privileges 
 
 of, under British North America Act (see British North America Act, 
 
 App. A, ss. 37, 52, and App. B) ; use of the French language therein, 
 
 ib., s. 133. 
 Confederation of Canada ; brief history of, 37-48 ; terms of, 48, 49. See 
 
 British North America Act, App>. A ; Federal union of the provinces. 
 Congress, American ; declares against Quebec Act, 10, n. 
 Consolidated Fund; charges on, 27 (Union Act, 1840). See British North 
 
 America Act, App. A, ss. 102-106. 
 Constitution of the United States; compared with that of Canada, 80, 81, 82, n.
 
 ANALYTICAL INDEX. 239 
 
 Constitutional Act, 1791 ; provinces of Upper and Lower Canada, established 
 by its provisions, 13-18 ; history of its operation, 19-21 ; suspension of, 
 in Lower Canada, 23. 
 
 Controller of Customs, 56 ; office abolished, 57. 
 
 Controller of Inland Revenue, 50 ; office abolished, 57. 
 
 Controverted Elections' Act ; judicial decisions on, 85-87. 
 
 County judges ; appointment and removal of, 151, w. 
 
 Coulume de Paris ; in use in French Canada, 3 ; basis of civil law in province 
 of Quebec, 150. 
 
 Criminal laws ; within jurisdiction of the parliament of Canada, 150. 
 
 Crown, the ; represented by the governor-general, 48, 49 ; by the lieutenant- 
 governors, 64, 65, 128 ; recommendation as to votes of money (see 
 British North America Act, App. A, ss. 54, 90. 
 
 Customs, department of, 54, 56. 
 
 D. 
 
 Declaration against transubstantiation, 8, n. ; remonstrance against, ib. 
 
 De Grey, solicitor-general ; opinion of, in 1763, on rights of French Canadians, 
 
 9, n. 
 Deputy-Governor. See governor-general. 
 Disallowance of provincial acts, 142-147 ; powers and responsibilities of 
 
 Dominion government in this respect, 148, 149. 
 Distribution of legislative powers ; between general parliament and local 
 
 legislatures, 80-82. See British North America Act, App. A. 
 Dominion ; origin of name, 47, n. 
 Double majority system ; an expedient to arrange political conflicts between 
 
 Upper and Lower Canada, 38-.39. 
 Dufferin, I^ord ; governor-general of Cana<la, 49, n. 
 Durham, Lord ; governor-general of Canada and high commissioner, 23 ; 
 
 reports on CJaiiada, 24 ; recommends responsible government, 25, 28 ; 
 
 also a legislative union, 40. 
 
 E. 
 
 Education ; exclusive powers of provincial legislatures, 81 (see British North 
 Amerifd Art, A /iji. A, h. 9'1) ; Now liruiiHwick controversy respecting, 
 12'> ; Manitoba controversy respecting, 12.")- 127. 
 
 HlcctionB. See controverted elertions. 
 
 ICschcatn ; decision of privy council respecting, 1 15-118. 
 
 F. 
 
 Fkdkrai. U.sion of the provinces ; Hugf^cHtfil l)y I^ord Durham, 40 ; conference 
 at Charl()ttet^)wn concerning, 41 ; sclitinc devised at Quebec in 1804, 
 ih. ; adopted by provinces of Canada, Nova Scotia and New Urunswick, 
 42, 43; p.iHHimo of (hi,'c llritixh North A mrrirti Art, JS(17, Ap]>. A)hy 
 imperial parliament, 43 ; meeting of first parliament of Canada, ib. ;
 
 240 ANALYTICAL INDEX. 
 
 acquisition of Northwest Territories, 43, 44 ; establishment of Mani- 
 toba, 45 ; admission of British Columbia, 46 ; of P. E. Island, ib. ; 
 constitution of the general government, 47-57 ; of the parliament, 57-62; 
 of the provincial governments, 62-73 ; distribution of legislative powers, 
 80-83. See British North America Act, A pp. A, and amending acts, 
 App. B, C, D. 
 
 Fishery licenses and leases ; Judicial decisions thereon, 109-114. 
 
 Fox, Mr. ; favours a representative assembly in 1774, 11, n. 
 
 Franchise Act ; passed by the Dominion parliament in 1885, for elections of 
 members of the Commons, 61 ; repealed in 1898, ib. 
 
 French language ; use of, in the legislature restricted by union act of 1840, 36 ; 
 repeal of objectionable clause, ib. ; used in law records and journals of 
 Canadian parliament, see British North America Act, App. A, s. 133. 
 
 French regime in Canada ; its character, 1-5. 
 
 G. 
 
 Geological Survey of Canada ; provided for, 55. 
 
 Governor-general ; how appointed, 48 ; jurisdiction and powers of, 49, 50, 57 ; 
 appointment of administrator in his absence from Canada, 51 ; may be 
 removed, 51, n.; his salary, 62 ; advised by a privy council, 51-53 ; 
 opens and prorogues parliament, 57, 58 ; assents to, or reserves bills, ib. ; 
 dissolves parliament, 58 ; appoints and removes lieutenant-governor, 
 with advice of his council, 63 ; appoints deputy-governors, 50. See 
 British North America Act, App. A. 
 
 Gosford, Lord ; governor-general of Canada, 23. 
 
 Great Seal ; governor-general appointed under, 48. 
 
 H. 
 
 Haxitax ; founded, 68, 7i. 
 
 Harbours; judicial decisions respecting, 111-114. 
 House of Commons. See Commons. 
 
 Howe, Hon. Joseph ; remarks of, on the irresponsibility of the executive in 
 Nova Scotia, 21, n. 
 
 Indepexdence of parliament ; legislation respecting, 30. 
 
 Indian affairs, department of, 55. 
 
 Indian titles ; judicial decisions respecting, 119-123. 
 
 Inland revenue, department of ; 54, 56. 
 
 Instructions, royal ; to governor-general, 49, 50. 
 
 Insurance ; judicial decisions respecting, 87-90. 
 
 Indians of Canada, treaties with, 75 ; judicial decisions respecting lands of, 
 
 119-122. 
 Intendant ; functions of, in French Canada, 2. 
 Interior, department of ; formed, 55.
 
 ANALYTICAL INDEX. 241 
 
 Interpretation of British North America Act, 1867 ; rules laid down by judges, 
 
 133-141. 
 Intoxicating liquors. See License Acts ; Prohibition; Temperance Act. 
 
 J. 
 
 Judges. See County Judges and Judiciary. 
 
 Judiciary : establishment of Supreme Court of Canada, 83 ; decisions of, on 
 questions of legislative jurisdiction : Controverted Elections Act of 1874, 
 85; insurance 87 ; temporalities fund of Presbyterian church, 90 ; 
 liquor traffic, 92-108; fisheries and harbours, 109-114; escheats, 115- 
 118; precious metals, 118, 19; Indian titles to lands, 119-124; taxes on 
 companies, 124 ; education, 125-127 ; powers and privileges of provincial 
 governments and legislatures, 127-133 ; rules of construction of British 
 North America Act laid down by, 133-142 ; how appointed, 150 ; 
 independence of, 150, 151 ; salaries permanently charged on civil list, 
 151 ; hold offices during good beha\nour, ib. ; only removed on address of 
 two houses, ib. ; county court judges removed for sufficient cause by 
 governor-general, 151, n. ; mode of dealing with charges against, 151, 
 152. 
 
 Justice, department of, 54. 
 
 Justices of the peace ; how appointed, 150, n. 
 
 K. 
 
 Keewatin ; creation of provisional district of, 75, 76. 
 King's counsel ; how appointed, 128, 129. 
 
 L. 
 
 Landers v. Woodworth ; case of, involving privileges of provincial legis- 
 latures, 1.30, 131. 
 
 Land question in Prince Edward Island, 70, 71. 
 
 Legislative Council ; of Canada (under Queljec Act), 11 ; of Upper Canada (in 
 1791), 16 ; of Lower Canatla (in 1791), ib.; of province of Canada (after 
 1840), 26, 27 ; of Quebec (after 1867), 65 ; of Nova Scotia, 68 ; of New 
 Brunswick, 69 ; of Prince Edward Island, 70 ; abolished in Ontario, 
 New Brunswick, Manitoba, Prince E<lward Island, British Columbia, 
 65-72 ; its strainetl relations with elected assemblies before 1840 and 
 responsible government, 19-22. 
 
 Legislative powers ; distribution of, 80-83. See British North America Act, 
 A))}). A. 
 
 Letellier de St. .lust ; dismissed from the lieutenant-governorship of Quebec, 
 63, n. 
 
 License acts re8[iecting sale of intoxicating liquors ; decisions of courts res- 
 pecting, 92-94, 97-108. 
 
 Lieutenant-governor; l>efore union of 1840 in Canada, 51 ; of each province since 
 confederation, 62 ; may be dismissed by governor-general in council, 
 16
 
 242 ANALYTICAL INDEX. 
 
 63 ; assisted and advised by a council, 63 ; assembles and prorogues 
 legislature, etc., 64; represents the crown, 64, 65, 128. 
 
 Liquor traffic. See Liquor Licenses ; Prohibition; Temperance Act. 
 
 Lome, Marquis of ; governor-general of Canada, 49, n, ; renaarks of, on con- 
 stitution of Canada, 189, n. 
 
 Loyalists, United Empire ; immigration of, into Canada, 13, 14. 
 
 M. 
 
 Macdonald, Rt. Hon. Sir John ; in charge of clergy reserves bill, 32, n. ; 
 member of Quebec conference, 41, n. ; presents confederation resolu- 
 tions in legislative assembly of Canada, 42, n. ; opinions of, on constitu- 
 tional and parliamentary questions, 40, n., 53, n., 56, w., 80, n., 81, n. 
 
 Macdonnell, W. ; first speaker of legislative assembly of L^pper Canada in 
 1792, 19, n. 
 
 Macpherson, Mr., speaker of senate ; held seat in cabinet, 54, n. 
 
 Manitoba ; establishment of province of, 45 ; representatives of, take seats in 
 Dominion parliament, ih. ; constitution of government and legislature 
 of, 71, 72; disallowance of certain acts of, 146, 147. 
 
 Manitoba school legislation ; history of, 125-127. 
 
 Marine and Fisheries, department of, 54, 56. 
 
 Members of the House of Commons ; number of, 60 ; election of, 61. 
 
 Military councils ; established in Canada, 6. 
 
 Military government in Canada ; established from 1760-1763, 6. 
 
 Militia, department of, 54. 
 
 Ministers ; members of the privy council, 53-57 ; responsibility of, 168 •, 
 resignation of, 183-185. 
 
 Minto, Earl of ; governor-general of Canada, 49, n. 
 
 Monck, Lord ; first governor-general of the Canadian Dominion, 43, n. 
 
 Murray, General ; governor-general of Canada, 7. 
 
 N. 
 
 Naahgation Laws ; repealed, 35. 
 
 Newark (Niagara) ; legislature of Upper Canada first assembles at, 19, n. 
 
 New Br\inswick, province of ; first formed, 69 ; entered confederation, 43 ; 
 government of, 69, 70, 
 
 New Brunswick school question, 125. 
 
 Newfoundland ; represented at Quebec convention of 1864, 47 ; refused to 
 enter confederation, ih. ; representation in senate in case of admission, 
 see British North America Act, App. A, s. 147. 
 
 Niagara. See Newark. 
 
 Northwest Territory ; acquisition of, 44 ; insurrection at Red River, 45 ; 
 establishment of province of Manitoba, ib. ; imperial order-in-council 
 placing all British North America, except Newfoundland, under control 
 of Canada, 47 ; government of, 73, 74 ; organization of gold district of 
 Yukon, 74, 75 ; Indian tribes in, 75 ; creation of provisional district of 
 Keewatin, 76 ; imperial legislation to remove doubts as to power of
 
 ANALYTICAL INDEX. * 243 
 
 Canadian parliament to legislate with respect to new provinces in 
 territories ; representation of, in parliament, 76, 77. 
 Nova Scotia, pro^•ince of ; constitution of, 67-09 ; enters confederation, 42, 43. 
 
 o. 
 
 Oath of allegiance ; taken by the governor-general, 49 ; by lieutenant-gover- 
 nors, 63 ; by members of parliament and legislatures, see Btitiah North 
 America Act, App. A, s. 128. 
 
 Ontario, province of ; constitution of, 65 ; boundary of, 77-79. 
 
 Ontario Liquor License Acts ; judicial opinions thereon, 92-94, 97-102, 10.3-108. 
 
 Orders-in-Council ; meaning of, 181-183. 
 
 Osgoode, Hon. W. ; first speaker of legislative council of Upper Canada, 19, n. 
 
 Ottawa, city of ; chosen as seat of government of Canada, 27, n. 
 
 Panet, J. A. ; speaker of Lower Canada assembly in 1792, 18, n. 
 
 Parliament of Canada; constitution of, 57-00; duration of, 61 ; control of, 
 over revenues and duties, 62 ; first meeting of, in the Dominion, 43 ; 
 Manitoba representatives take seats in, 45 ; British Columbia I'epresen- 
 tatives, 40 ; P. E. Island representatives, ib. ; K.W.T. representatives, 
 77 ; imperial legislation to remove doubts as to its power to legislate 
 with respect to new provinces in the territories, 76 ; legislative juris- 
 diction of, 80-84. See Britiili North America Act, App. A. 
 
 Parliamentary government in Canada, general observations on : relations 
 between the parent state and Canada, 155-158 ; limitations on sovereign 
 authority of the empire, 158, 159 ; plenary and ample powers of Cana- 
 dian legi.slative authorities within defined legal limits, 159; principles 
 of Canadian constitution rest on written and unwrittten law, 159-162; 
 distinction between the conventions and the law of the constitution, 
 100, 101 ; principles of English parliamentary government observed in 
 Canadian system, 102, 103 ; executive autiiority defined in general 
 terms, 103 ; i)rivy councillors not necessarily responsible advisers of the 
 Crown, 104 ; cabinet, a coniniittee of privy council and of legislature, 
 165; j)riine minister or premier, choice of governor-general, ih., 166; 
 constitutional medium between governor-general and cabinet, 167; 
 chooBes members of cabinet, \l>. ; cabinet must act as unit, 168 ; its 
 rcBponsibility, ih. ; iiroceedirigH in case of miniHtorial crisis, and of fornui- 
 tion of nt-wgovernniciit, Ki'.t, 170; miniHterial txplanatioiiH, tV>. ,• govern- 
 ment reaponniblc for administration and legislation, 171 ; functions of 
 parlinmcrit, those of control not of administration, 172 : piirlianientary 
 connnittees, their importance, 173; royal commissions, 174-170; minis- 
 try initiate and control ]<gialation, 176 ; alone initiate measures of taxa- 
 tion and expenditure, 178; resi^nsibilities of, in niattors of legislation, 
 178, 179; iKolatcd <lefeatH of, do not necessarily involve ministerial 
 resignation, 179, \H); resiKmsibility in respect to private bills legislation, 
 180, 181 ; ordcrB-in-council, 181-183 ; defeat or resignation of ministry,
 
 244 » ANALYTICAL INDEX. 
 
 and the consequence, 183, 185 ; re-election of ministers, when necessary, 
 
 185, 186 ; importance of law and custom of parliament, 186-188. 
 Plebiscites on prohibition of sale of lic^uors, 108, n. 
 Police magistrates ; how appointed, 150, w. 
 Postmaster-general ; when appointed, 54. 
 Precious metals' case ; judicial decision on, 118 ; 
 
 Prime minister ; position of, in system of parliamentary government, 165-167. 
 Prince Edward Island, province of ; constitution of, 70 ; admission into the 
 
 confederation, 46. 
 Privileges and powers of parliament. See TJie Parliament of Canada Act, 
 
 1875, App. C. 
 Privileges of provincial legislatures, 130-132. 
 Privy council of Canada ; appointed to aid and advise governor-general, 51, 52, 
 
 163, 164 ; origin of name of, 52 ; ministry composed of its members, 53. 
 Privy council, judicial committee of ; decisions of, on questions of legislative 
 
 jurisdiction. See Chapter II. of this booh. 
 Privy council ; president of, 54. 
 Proclamation of 1763 ; issued by George III., 6, 7. 
 Prohibition of sale of liquors ; judicial decisions resjjecting, 103-108; legislation 
 
 in provinces concerning, 108, n. ; plebiscites on, ib. 
 Property qualiiication ; required for senators, 60. See British North America 
 
 Act, App. A. 
 Public printing and stationery, department of, 55. 
 Public works ; department of, 54, 55. 
 
 Q. 
 
 Quebec Act, 1774 ; parliament intervenes in Canadian affairs and passes act, 
 
 9, 10 ; details of, 1], 12 ; operation of, 15, 16. 
 Quebec couferonce ; resolutions for confederation of Canada passed at, 41, 48. 
 Quebec, province of ; constitution of, 65, 66. 
 Quorum in Dominion parliament. See British North America Act, App. A, 
 
 ss. 35, 48, 78, 87. 
 
 R. 
 
 Rupert's Land ; acquired by the Dominion, 43-45. 
 
 Railways and canals, dejjartment of, 55. 
 
 Rebellion of lS37-'.38 ; origin of, 19-23; suspension of constitution of Lower 
 
 Canada, 23; arrival of Lord Durham, 24 ; his ordinance of 1838, ib.; his 
 
 report on, 24, 25. 
 Receiver-generalshij) ; abolished, 55. 
 Red River ; insurrection in, 44, 45. 
 
 Representation of the provinces, in parliament of Canada, 57-61. 
 Representation by population ; demanded by representatives of Upper Canada, 
 
 previous to 1865, 37, 38. 
 Resignation of members of government, 183-185. 
 Responsible government ; Lord Durham's opinion thereon at time of difficulties
 
 ANALYTICAL INDEX. 245 
 
 in Canada, 2S ; its establishment in Canada, 2S-30; in Nova Scotia, ib.; 
 in New Brunswick, ib. ; in Manitoba, 45 ; in P. E. Island, 70 ; in 
 British Columbia, 72. 
 
 Rochefoucault-Liancourt, Duke de la ; describes ceremonies at opening of 
 Upper Canadian legislature in 1795, 19, n. 
 
 Roman Catholics in Canada ; only required to take oath of allegiance, by- 
 Quebec Act, 1 1 J relieved of their disabilities, 12. 
 
 s. 
 
 Secretary of State of Canada ; department of, 54, 55. 
 
 Seigniorial tenure ; established, 4, 5 ; abolished, 32, 33. 
 
 Senate of Canada ; constitution of, 57, 59, 69. See British North America 
 Act, App. A, ss. 21-36, 39. 
 
 Simcoe, Lieutenant-Governor ; opens and closes first session of legislature of 
 Upper Canada, 19. 
 
 Smith, Hon. W. ; speaker of legislative council of Lower Canada in 1792, 18, n. 
 
 Solicitor-general, 57. 
 
 Speaker ; of the senate, appointed by the governor-general, see British North 
 America Act, App. A, s. 34 ; of the commons, by the house, see ibid., 
 ss. 44-49 ; speaker of legislative council in Quebec, 67. 
 
 St. Catharines Milling & Lumber Co. r. the Queen ; judicial decisions res- 
 pecting, 119-122. 
 
 Stipendiary magistrates ; how appointed, 150, >i. 
 
 Streams' Act of Ontario ; disallowed, 144-146. 
 
 •Supplies ; dispute between executive and assemblies before responsible govern- 
 ment with respect to control of, 20, 21. 
 
 Supreme Court of Canada. See Judiciary. 
 
 Supreme or Superior Council ; established in French Canada, 3. 
 
 Sydenham (Poulett Thomson), Lord ; governor-general of Canada, 25, 28 ; his 
 opinion a-s to a municipal system, 31. 
 
 Tax Bills of Quebec ; judicial decisions on, 124. 
 
 Temperance Act, Cana<la, of 1878 ; judicial decisions respecting, 94-109. 
 
 Temporalities Fund of Presbyterian Church in Canada ; judicial decisions 
 
 thereon, 90-92. 
 Tliurlow, Attorney-General; bin opinion on the proclamation of 1763, l,n.; 
 
 on the rights of French-Canadians, 9, n. 
 Tithes in Canada, 4. 
 Titles in Canada; conferred on eminent Canadians, Hi, n.; order of St. Michael 
 
 and St. George cnlargiMl, ib. 
 Thomson, Poulett. See Sydenhnvi, Lord. 
 Trade and Commerce ; department of, 56. 
 Treaty of Paris, 0, 7.
 
 246 ANALYTICAL INDEX. 
 
 U. 
 
 Union Act of 1840 ; origin of, 24, 25; Poulett Thomson (Lord Sydenham), first 
 governor of United Canada, 25, 20 ; leading provisions of, "26-28 ; fol- 
 lowed by responsible government, 28-30 ; importance of legislation 
 under, from 1841-1867, 30-37 ; repealed by confederation, 37-43. 
 
 Vancouver Island ; constituted a British colony, 72 ; united to British 
 Columbia, ib. See Columbia, British. 
 
 w. 
 
 WiLMOT, Mk., speaker of senate ; held seat in cabinet, 54, n. 
 Winnipeg South-Eastern R. R. Bill ; disallowed, 146. 
 Woodworth, Mr. See Landers v. Woodworth. 
 
 YORKE, Attorney-General ; his opinion on rights of French-Canadians, 9, n. 
 Yukon, district of j constituted, 74, 75.
 
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