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 Cornell University Library 
 JL61 .085 1887 
 
 Government in Canada. 
 
 olin 
 
 1924 030 501 534 
 
The original of this book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924030501534 
 
GOVERNMENT IN CANADA. 
 
 THE PRINCIPLES AND INSTITUTIONS 
 
 OF OUR FEDERAL AND PROVINCIAL 
 
 CONSTITUTIONS. 
 
 THE B. N. A. ACT, 1867, COMPARED WITH THE UNITED 
 STATES CONSTITUTION, 
 
 A SKETCH OF THE CONSTITUTIONAL HISTOEY OF CANADA ; 
 
 D. A. O'SULLIVAN, M.A., D.C.L. 
 
 Of Osgoode Hall, Bar^'ister-at-Law. 
 Schola/r-in-Law in University of Toronto, Son, D. C. L. Laval. 
 
 AtTTHOB OF "PRACTICAL CONVEYANCING," "HOW TO DRAW A SIMPLE WILL," "EBSATB 
 ON TREATIES AFFECTING CANADA AND THE UNITED STATES," ETC. 
 
 SECOND EDITION; 
 
 ENLAKGBD AND IMPEOVED. 
 
 TORONTO : 
 
 CARSWELL & CO., PUBLISHERS, 
 
 1887. 
 
^Hr44-B~M-^r^ 
 
 A. S 5- 5-on 
 
 lUNlVERSnYl 
 \LIBRARY^ 
 
 ^U 
 
 Entered according to Act of Parliament of Canada, in the year one thousand 
 eight hundred and eighty-seven, by D. A. O'Stjllitan, in the office of the 
 Minister of Agriculture. 
 
 PBINTHD BY 
 
 MooBE & Co., Law FmNTBits, 
 20 Adelaide BI'. Bast, 
 
 TOBONTO. 
 
IB, 
 BY KIND PEEMISSION, EESPEOTFULLY INSCEIBED 
 
 TO THE 
 
 HON. EDWARD BLAKE, 
 
 BY 
 
 The Author. 
 
ADVEETISEMENT TO THE SECOND EDITION. 
 
 rriHE writer took advantage of the long vacation of the 
 -■- present year to prepare the second edition of this work 
 for the press. The order of the edition of 1879 has been 
 retained but the book has been entirely re-written and en- 
 larged to fully twice its original size. The B. N. A. Act . 
 and its amendments have been made the text of three 
 fourths of the present volume ; no section has been omitted 
 and in every necessary case the corresponding sections in 
 the U. S. Constitution have been referred to. The chapters 
 on the People and their Eights and the Courts and their 
 Procedure will, it is trusted, be of use to the general public. 
 The chapter on Criminal Law received many useful additions 
 and suggestions from Mr. Irving Q. C. of the Ontario bar and 
 the writer is glad to acknowledge this assistance from such 
 an experienced and distinguished counsel. The history of 
 former governments in Part II is an amplification of the in- 
 troductory sketch in the former edition. It would be out- 
 side the design of the book to make this as complete as it 
 should be. The writer may on some future occasion arrange 
 the materials provided for this Part in a constitutional 
 history of Canada. 
 
 Daring a period of twenty years the constitution of Canada 
 has been put to many tests. It is less difficult to say now 
 than it was ten years ago, that our federal constitution may 
 turn out to be something different from what the framers of 
 it intended. It cannot be at one and the same time a 
 federation and the reproduction of a constitutional mon- 
 archy. If the provinces are not absolute within their 
 
VI ADVERTISEMENT TO THE SECOND EDITION. 
 
 own legislative limits, but subject to a veto from the central 
 government, then there is theoretically only one Legislature 
 in Canada. If the central government absorbs all the 
 executive of the government " of and over Canada," there can 
 be none left for the provinces. But the writer hopes to 
 shew in these pages that the federation is not endangered 
 by a veto held over the provinces, as a similar one is held 
 over the Dominion, or that the executive power is not as 
 readily at hand for the one as the other. Over each of our 
 governments there is one paramount authority and the 
 administration that would strike at the legislative authority 
 of the provinces is liable to have its own rule applied to its 
 own legislation. The veto is an accident of the Canadian 
 federation as it has been of other leagues, but it no more 
 affects the principles of a federal union than does the absence 
 of sovereignty. A number of tenants may unite as well as 
 a number of landlords. 
 
 On the question of the executive power the reader will 
 notice that in the U. S. constitution it is vested in the 
 President. That is the executive for the United States. 
 There writs and process run in the name of The People, 
 and Congress enacts in that way just as we use the name 
 of the Queen. Tbe individual or separate States have their 
 executive also in The People, and their process is tested in 
 that way, their legislation is enacted in that way, and still 
 there is not a word about it in the United States constitu- 
 tion. With us the executive power '•' of and over " Canada 
 is vested in the Queen and it is contended in these pages 
 that the Queen's name is as warranted in provincial mat- 
 ters as it is in matters in the Dominion. 
 
 On one other point the writer may be permitted to make 
 a remark. Tliat is as to the reserve powers in Canadian 
 legislatures. It will be seen in the chapter on the distri- 
 bution of legislative power (page 95) that there is no analogy 
 
ADVERTISEMENT TO THE SECOND EDITION. VII 
 
 at all between our constitution and that of the American 
 union on the delegation of powers. Two elaborate classes 
 of subjects were prepared by the framers of our union — one 
 to go to the central government, another to the local. It 
 was felt that notwithstanding the particularity of these 
 classes there might be something over and above them in 
 both cases. What the 91st and 92nd sections then pro- 
 vided was that any subject not in the central class assigned 
 to the Dominion should go to the Dominion government if 
 it related to the peace, order and good government of all the 
 provinces ; and that any subject not on the local list if for 
 any matter within the provinces should go to the local 
 government. 
 
 The reader will also see that there is no analogy between 
 the judicial power in the United States and the judicial power 
 in Canada, though the practical working of the two judica- 
 tures is the same so far as declaring unconstitutional laws 
 to be void. The courts in Canada are Queen's Courts testing 
 all Dominion and provincial legislation by the standard of 
 an Imperial Statute — the Constitution of Canada. In the 
 United States the judicial power is vested in the Supreme 
 Court and that power is independent of the President and 
 of Congress. 
 
 These are some of the points that will be found in detail in 
 this volume. The writer studied the United States consti- 
 tution with many aids, but he took the text of the Canadian 
 constitution as his best guide. It is impossible to reconcile 
 many of the judgments of the courts on our side of the line, 
 the reader will not easily form an opinion from decided 
 cases. But when the whole Act of 1867 is viewed in its his- 
 tory, its intentions and its language, there is no substantial 
 desire of its promoters that may not be effected by;it. It is, 
 like every federal charier, liable to drift into pure centralism 
 on the one hand or to exaggerated claims for State rights on 
 
/ 
 
 viii ADVERTISEMENT TO THE SECOND EDITION. 
 
 the other ; over and above this it is liable to be lost in the 
 principles of monarchy and the exercise of the veto power. 
 Dangers such as these have been met and overcome in the 
 American Union and they can be met and overcome in our 
 own. 
 
 The writer hopes that this volume will be acceptable to 
 the Canadian public as a useful book on the constitution. 
 He does not flatter himself that the sale of the former large 
 edition was due to anything more than the pressing neces- 
 sity for some work on the subject ; but he hopes that the 
 present edition will deserve some of the praise that its 
 predecessor received. He is, however, willing to commit 
 it to the public on its merits, and will be glad to learn from 
 any one who is able or entitled to speak on the subject. 
 
 The writer is under obligations to Mr. Houston, librarian 
 of the legislative assembly of Ontario, and to Mr. Bain, of 
 the Toronto public library, and gladly avails himself of this 
 opportunity to acknowledge the courtesies extended by them. 
 
 The index of this edition has been prepared by Mr. W. 
 McBrady, B. A., student-at-law, and the proof sheets com- 
 pared and corrected by him. 
 
 The Long Vacation, 
 
 ToEONTo, 1887. 
 
PREFACE TO THE PIEST EDITION. 
 
 TN the compilation of the following pages the writer has 
 -^ endeavoured to make a fair use of such materials as were 
 within his reach, in order to effect the object he intended. 
 Preceded by no writer on the subject, and desirous of 
 rejecting such contemporary opinion as was neither judicial 
 nor official nor otherwise authoritative, he has found the 
 task not at all an easy one. From the number of dis- 
 tinguished constitutional lawyers in Canada, and especially 
 in .this province, one might have been justified in the 
 expectation that something more permanent than a speech 
 at the hustings or a pamphlet in some party issue would 
 have remained as instructive reading on the subject. As 
 to contemporary opinion, very little of it is entitled to 
 grave consideration. 
 
 It is needless to say that the writer has carefully avoided 
 using any public expression of opinion, no matter how 
 authoritative it might appear, unless it bore the stamp of 
 some authority upon it. In regard to decisions of the 
 courts and judicial dicta on the subject, the former must 
 of course be taken to be law; the latter carry weight 
 proportionate to the reputation and ability of the 
 particular judge pronouncing them. It must be admitted 
 that a judge, in construing our Constitutional Act or any 
 section of it or any statute in fact, familiarizes himself 
 necessarily with the spirit of the Act ; and if he goes out 
 of his way to express an uncalled for opinion, or what may 
 
X PREFACE TO THE FIRST EDITIOK. 
 
 be deemed uncalled for, it is certainly because on that 
 
 point he has no doubt whatever. Judges have plenty to 
 
 do in deciding the disputes immediately before them ; 
 
 and it is to be expected that before commenting on any 
 
 foreign subject they generally will have entertained strong 
 
 views on it. The writer makes no apology for regarding 
 
 such dicta as entitled to great consideration ; and only 
 
 regrets that he was unable to find more judicial utterances 
 
 in the law reports than are incorporated herein. 
 
 * 
 
 The utterances of any of our public men, speaking in 
 
 their of&cial capacity as servants of the crown and country, 
 
 are deserving of consideration next only to what must be 
 
 regarded as settled law. The writer has faith in the 
 
 political morality of our leading statesmen to the .extent, 
 
 at least, that no one of them, acting in an official or, as 
 
 may be said, a judicial position — as advisers of the crown, 
 
 as trustees of the constitution — would permit his judgment 
 
 to be biased by a mere party spirit, or for a temporary party 
 
 triumph. 
 
 If it be otherwise in Canada, then it is time we were 
 governed without party, as that term is now understood. 
 
 Accordingly, all official papers and correspondence, both 
 of English and Canadian ministers while in office, bearing 
 on the subject, have been freely used. 
 
 None of the other sources need comment. 
 
 In his task the writer has consulted no one and asked 
 no one's opinion. It is only fair to state this, as it may 
 well happen that in a work which was the joint production 
 of the writer and others, any excellence in it would be 
 attributed to them and the defects to himself. Whatever 
 there is in this book deserving either of praise or blame is 
 attachable to the writer and to no other person. 
 
PREFACE TO THE FIRST EDITION. XI 
 
 It was originally intended to make the wotk complete 
 for each province as to the executive departments and to 
 add the courts of law thereto. This was abandoned, partly 
 because- some necessary information from professional 
 gentlemen in the other provinces did not come to hand in 
 time, and also because, if rumor be true, a description 
 of the courts in Ontario as they are now constituted may 
 not apply for any length of time. 
 
 Some other alterations were made in the plan of the 
 work after portions of it were in type. 
 
 The indulgence of the public will have to be asked in 
 regard to any errors in this edition. Though in con- 
 templation for some time, it was entirely remodeled and 
 re-written within the past two months and it was put 
 through the press very rapidly. 
 
 The writer acknowledges with pleasure the assistance he 
 has received, both in the preparation of the index and 
 otherwise, from Mr. C. L. Mahoney and Mr. A. A. Archbold, 
 students-at-law. 
 
 Toronto, December, 1879. 
 
LIST OP AUTHOEITIES 
 
 USED IN THE IMMEDIATE PREPARATION OF THIS WOEK. 
 
 Bagehot — The English Constitution. 
 
 Blackstone's Commentaries. 
 
 Bourne's Story of Our Colonies. 
 
 ChaijMer's Opinions of Distinguished Lawyers. 
 
 Chitty on the Prerogatives of the Crown. 
 
 Clark's Colonial Law. 
 
 Cooley's Constitutional Limitations. 
 
 Cox's British Commonwealth. 
 
 Finlayson's History of the Privy Council. 
 
 Hallam's Constitutional History of England. 
 
 Hodgin's Voters' Lists. 
 
 Lattey's Privy Council Practice. 
 
 Macfie's British Columbia and Vancouver's Island. 
 
 Martin on the Colonies. 
 
 McDonald's British Columbia and Vancouver Island. 
 
 McGregor's British America. 
 
 Orders in Council — Imperial, Dominion and Provincial. 
 
 Pombroy's Constitutional Law. 
 
 Eeports of English and Canadian cases in the Privy Council, 
 Supreme and Provincial Courts. 
 
 EuLES of the Senate, Commons, and the Provincial Assem- 
 blies. 
 
 Sedgwick's Constitutional Law. 
 
 Sessional Papers — Dominion and Provincial. 
 
 State Papers and Opinions of Officials on Constitutional 
 points. 
 
 Statutes — Imperial, Dominion and Provincial. 
 
 Watson's Constitutional History of Canada. 
 
CONTENTS, 
 
 PART I. 
 
 THE CONSTITUTION AS IT IS. 
 
 PAGES 
 
 CBAPTEE 1 1-14 
 
 THE MONARCHICAL FEDEEATION. 
 
 The intention of the provinces in forming a union — The preamble of tlie 
 B. N. A. Act — General view of the Act — The executive — Sovereignty 
 — What is a federal union — The division of powers in it— What is the 
 British constitution — The unity of the powers in it — Opinion of Mr. 
 Blake — Mr. Dicey and others. 
 
 CHAPTEE II .15-25 
 
 THE CONSTITUTION OF CANADA. 
 
 The constitution, the agreement of the provinces— Federal union with 
 monarchic principles — Executive " of and over Canada " in the 
 Queen — A parhament with two houses constituted and unchangeable 
 — A privy council jurisdiction of parliament limited legislatively — 
 Provincial jurisdiction defined — The executive power follows the 
 legislative power in a federation — The provincial constitutions and 
 their alteration — The judicature and its peculiar functions. 
 
 CHAPTEE III 26-39 
 
 THE PARLIAMENT OF CANADA.— THE QUEEN. 
 
 The Queen — The first estate— The Governor-General — His Deputy — 
 Death of Sovereign — Summons senators, speaker of senate — Calls 
 together parliament — Other Duties — Judges — Lieutenant-Governors 
 —Statutory Powers— Acts of 1791, 1840, 1854, 1867— Eoyal instruc- 
 tions —Mr. Blake and Earl Carnarvon — Duties of Governor — Mr. 
 Todd's views — Duke of Newcastle's instructions. 
 
XIV CONTENTS. 
 
 PAGES. 
 
 CHAPTEEIV 40-50 
 
 THE PAELIAMENT OP CANADA.— THE SENATE. 
 
 Composition of the senate — Limited to 78 — The three divisions— Qualifi- 
 cations of a senator — How the seat becomes vacant — Title and pre- 
 cedence — Number in the cabinet — Speaker — Quorum — Privileges — 
 The House of Lords — Additional senators — Kule in such a case — 
 Keason for a second chamber — Mr. Smith's view — Mr. Todd's. 
 
 CHAPTEE V 51-58 
 
 THE PABLIAMENT OP CANADA— THE COMMONS. 
 
 Former and present composition of the Commons — Who may not be 
 members — Who may, and who may not vote for members — Election 
 trials — Duration of the Commons — Speaker — Quorum — Privileges 
 of the house, of its members. 
 
 CHAPTER VI •. 59-66 
 
 THE QUEEN'S PRIVY COUNCIL POE CANADA. 
 
 Who are privy councillors and who cabinet councillors — Oath and office 
 and duties — Number — Portfolios — Carry on administrative govern- 
 ment with approval of parliament — ^Cabinet questions —Relation to 
 executive and to legislature — Privy council a peculiarly British insti- 
 tution. 
 
 CHAPTER VII 67-82 
 
 THE PRIVY COUNCIL— DEPARTMENTAL ADMINISTRATION 
 AT OTTAWA. 
 
 Ministers with portfolios— Salaries— Power of investigation — Depart- 
 ment of justice, powers, duties, of&oers — Finance revenue, currency, 
 banks — Agriculture, immigration, manufactures, patent of&ce, copy- 
 right, statistics — Secretary of State, writs, commissions, proclama- 
 tions, N. W. mounted police — Marine and fisheries, pilots, light 
 houses, shipwrecks— Militia and defence, classes of militia, districts, 
 exemptions, pensions. 
 
 CHAPTER VIII 83-95 
 
 THE PRIVY COUNCIL— ADMINISTRATIVE GOVERNMENT. 
 
 (Continued.) 
 
 The department of customs — Inland revenue, excise, weights and mea- 
 sures, stamps, tolls — Interior, Indian affairs, crown lands, geological 
 survey, N. W. mounted police — Post office, powers and duties, postal 
 union, money orders, letters — Public works, officers, works — Rail- 
 ways and canals- Public printing and stationery, Queen's printer, 
 statutes, Canada Gazette — Indian department — Trade and commerce 
 — The high commissioner for Canada. 
 
CONTENTS. XV 
 
 PAGES 
 
 CHAPTEEIX 96-113 
 
 THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 
 
 Provincial and Dominion sovereignties, opinions of eminent Canadian 
 judges — Sovereignty in the United States, classes in the 91st section 
 — Classes in the 92nd section — Education — Concurrent jurisdiction 
 — Grouping of subjects assigned to the Dominion — Assigned to the 
 provinces — Disputed jurisdiction — Cases — Reserve powers, distribu- 
 tion of powers — Comparison with American union — Mr. Dicey on 
 the principle of distribution — General powers of parliament — The 
 Territories. 
 
 CHAPTER X 114-119 
 
 DISTRIBUTION OF REVENUE, ASSETS AND DEBTS. 
 
 Dominion assets, public works schedule, duties, revenues, stocks — Debts, 
 consolidated revenue fund, charges on it — Provincial assets, lands, 
 mines, etc. 
 
 CHAPTEEXI 120-125 
 
 PROCEDURE IN PARLIAMENT— BILLS. 
 
 Summoning parliament — Speaker of the commons — Speech from the 
 throne — ^Business of the houses — Privileges of members — Different 
 stages of a bill, conferences, how a bill becomes an Act, peculiar 
 bills, supply, divorce, private bills, deposits — Prorogation, dissolution. 
 
 CHAPTER Xn 126-138 
 
 CONSTITUTION OE THE PROVINCES. 
 
 Less particularity in describing the provincial constitutions than the 
 Dominion — Comparison with U. S. constitution — Veto — Statutory 
 description of the provinces, executives — Ontario and Quebec, Nova 
 Scotia and New Brunswick — Powers common to all — Disallowance 
 — Strict and relaxed views of the constitution, Mr. Justice Gwynne 
 — Chief Justice Sir William Ritchie, provincial autonomy. 
 
 CHAPTER Xm 139-146 
 
 THE PROVINCIAL LEGISLATURES. 
 
 Lieutenant-Governors, in Ontario and Quebec, in other provinces — 
 Former governors — Powers, dismissal, opinions of Earl Kimberly, 
 of Sir John Macdonald, Mr. Justice Gwynne — Legislative assem- 
 blies, procedure, — Extent of disallowance, Mr. Lash's memorandum. 
 
XVI CONTENTS. 
 
 PAGES 
 
 CHAPTEE XIV 147-164 
 
 THE PROVINCES— ONTABIO. 
 
 Legislature, how composed, one house, members' qualifications — Speaker, 
 quorum.'procedure — Executive council, departments — Attorney-Gen- 
 eral — Provincial treasurer, agriculture — Commissioner of crown lands 
 — Commissioner of public works — Minister of education. 
 
 CHAPTEE XV 165-175 
 
 THE PEOVINCB OP QUEBEC AND OTHBE PROVINCES— THE 
 TERRITORIES. 
 
 Quebec, two houses, members, otherwise similar to Ontario, Judges — 
 Adjustment bet^feen the old Canadas— Nova Scotia and New Bruns- 
 wick unchanged — Manitoba created — British Columbia — Prince Ed- 
 ward Island— The North West Territories — Keewatin. 
 
 CHAPTEE XVI • 176-183 
 
 THE JUDICATURE. 
 
 Defects of written constitutions, imperfect description of boundaries to 
 legislative powers — Position of the courts — Different sources of laws 
 — The judicial power in the United States, in Canada, similar 
 duties but dissimilar origin. 
 
 CHAPTEE XVII 184-195 
 
 THE COURTS. 
 
 The judicial committee of the privy council, composition, jurisdiction, 
 discretion as to appeals, procedure, judgment — The supreme court of 
 Canada, jurisdiction, court of last resort, sittings, practice and pro- 
 cedure — The exchequer court of Canada, new constitution, jurisdic- 
 tion, to follow English practice, sittings, writs run through Canada 
 — The maritime court of Ontario, jurisdiction, judge, practice. 
 
 CHAPTEE XVIII 196-205 
 
 PROVINCIAL COURTS, CIVIL PROCEDURE, OFFICERS OF 
 THE LAW. 
 
 Procedure in civil matters belongs to the provinces —In criminal matters 
 to the Dominion — Want of unifoi-mity in laws and procedure as to 
 property and civil rights, old divisions of English courts, appeal 
 courts — Equity and common law courts, cases heard in first instance, 
 superior and inferior courts — Object of procedure and pleadings — 
 Writs, statements, record, issue, — Trial, verdict, execution — Officers 
 of the law, attorneys, solicitors, counsel, notaries, sheriffs, coroners. 
 
CONTENTS. XVll 
 
 PAGES 
 
 CHAPTEK XIX 206-222 
 
 PROCEDUBE DEFINED BY THE DOMINION PARLIAMENT- 
 CRIMINAL LAW AND ITS OFFICERS. 
 
 Criminal law, Ontario, Quebec, etc — Information, inquisition, present- 
 ment — Criminal information, leave to file — Procedure to trial, accu- 
 sation, evidence, committal — Grand jury, bill, petit jury, trial, 
 sentence — Extradition— Justices of the peace, ex officio justices, 
 summons, warrant, coifviotion, certiorari, committal, felony, police 
 magistrates — Coroners, appointment, functions, investigation, jury, 
 finding, committal, inquisition — County attorney, duties — Crown 
 counsel. 
 
 CHAPTER XX 223-231 
 
 THE PEOPLE— SUBJECTS, ALIENS, DENIZENS. 
 
 Who is a subject — Who an alien — Residents, domicile, capacity of alien, 
 subjects by birth, by naturalization, oath of residence, of allegiance 
 — Denizens — Titles under confederation, governors, privy councillors, 
 senators, speakers, provincial councillors — Bank of the foregoing, 
 judges, bishops, army and navy officers, retired judges. 
 
 CHAPTER XXI 232-244 
 
 THE PEOPLE, THEIR BIGHTS. 
 
 Bepresentation, franchise, suffrage, basis of representation — Qualifica- 
 tions in the Dominion and the provinces — Ontario — Public meetings, 
 how called, riot act — Petitions, when necessary, how prepared, how 
 presented — The press, libel, civil and criminal, Ontario Act, retrac- 
 tation — Commissions of enquiry — Local government, municipalities, 
 townships, counties, villages, towns, cities, by-laws, control of the 
 courts — Religious freedom, equality of all denominations, no estab- 
 lished church, the Church of England, the Roman Catholic Church, 
 public worship protected, statutes, Christianity part of the law of 
 the land. 
 
XVm CONTENTS. 
 
 PART II. 
 
 FOEMER GOVERNMENTS IN CANADA AND IN THE 
 
 PROVINCES. 
 
 PAGES. 
 
 INTRODUCTION •. 245-248 
 
 CHAPTER I 249-258 
 
 EABLT DIVISIONS OP THE CONTINENT— CANADA. 
 
 Three claimants of the continent, England east of the Mississippi, 
 France west of it and north of the lakes, Spain to the south and 
 •west — Treaties, Kyswiok, Utrecht, Aix-la-Chapelle, Paris, 1763, 
 Versailles, 1783 — Boundaries — French regime. Seven years' war, fall 
 of Quebec, ofMontreal, capitulations-Military government, 1759-1768. 
 
 CHAPTER II 259-267 
 
 THE TREATY OF PARIS— 1763 TO 1774. 
 
 Fourth section of the treaty — Clause as to religious freedom, opinions — 
 Royal proclamation of 1763, islands given to Nova Scotia, to New- 
 foundland — Assembly promised — Governors, laws, courts, commis- 
 sions — Petition for an assembly, politics in England when Quebec 
 Act was submitted. 
 
 CHAPTER III 268-277 
 
 THE QUEBEC ACT— 1774 TO 1791. 
 
 Petitions for the bill, Mr. Maseres, reports of the debates — Boundaries 
 of Quebec — Provisions as to religious worship, civil law of Canada 
 to prevail, criminal law of England in' force — Feeling in the other 
 colonies in America — Government by advising council, no assembly 
 — Establishment of courts, habeas corpus — Sir Guy Carleton, com- 
 missions issued, division of Western Canada, discontent under the 
 government, preparations for a change in mode of government. 
 
CONTENTS. XIX 
 
 PAGES 
 
 CHAPTEKIV 278-285 
 
 the divided canadas.— 1791 to 1841. 
 
 Petitions preceding this Act, Mr. Lymberger's desire to repeal Quebec 
 Act, for a new constitution, for one province — English population, 
 disappointment — King's message, principal parts of the Act, divi- 
 sion into Upper and Lower Canada, legislative council and legisla- 
 tive assembly for each, courts, tenure of land, reservation of certain 
 bills, clergy reserves — Provisions for Protestant clergy, for Boman 
 Catholic clergy, tithes — Discontent, councillors, governors, suspen- 
 sion of constitution in Lower Canada, rebellion — Reports, Lord 
 Durham. 
 
 CHAPTEE V 286-292 
 
 THE UNITED CANADAS, OTHER COLONIES.— 1840 TO 1867. 
 
 Lord Durham's report, recommendations — Act of Union, one legisla- 
 ture, two bouses, legislative council, legislative assembly, duration, 
 speakers — Governors, powers, laws continued — Amendments, elective 
 councillors, seat of government — Former governments in Nova Scotia, 
 in New Brunswick, in Prince Edward Island, in British Columbia 
 — Conventions at Charlottetown, at Quebec — Confederation. 
 
 CHAPTEE VI 293-255 
 
 CONCLUSION. 
 
 APPENDIX. 
 
 CONSTITUTION OF THE UNITED STATES 296-308 
 
 CONSTITUTION OF CANADA 309-331 
 
 THE B. N. A. ACT, 1871 , 332-333 
 
 PAELIAMENT OF CANADA ACT, 1875 333 
 
 INDEX 335 
 
PLAN OF THE WORK. 
 
 I. — Present Form of Government. 
 
 Page. 
 
 The Parliament of Canada 1-67 
 
 Administrative Government at Ottawa 67-96 
 
 Distribution of Legislative Powers 96-113 
 
 Eevenue Assets, etc., of the Dominion 114-120 
 
 Procedure in Parliament 120-126 
 
 Constitution of the Provinces and Territories 126-176 
 
 The Judicature and Procedure 176-223 
 
 The People— their rights, etc 223-244 
 
 II. — Former Governments. 
 
 Early History 249-258 
 
 The Treaty of Paris 259-268 
 
 The Quebec Act 268-278 
 
 The Constitutional Act, 1791 278-286 
 
 The Union Act, 1840 286-292 
 
 The United States Constitution, the Canadian Con- 
 stitution of 1867, the principal sections of the 
 Quebec Eesolutions — the B. N. A. Act of 1871 
 and the Parliament of Canada Act 1875 are 
 
 given in the Appendix 296-334 
 
GOVERNMENT IN CANADA. 
 
 PART I. 
 THE CONSTITUTION A.S IT IS. 
 
 CHAPTEE I. 
 
 THE MONARCHIC FEDERATION. 
 
 The intention of the provinces in forming a union — The 
 preamble of the B. N. A. Act — General view of the 
 Act — The executive — Sovereignty — What is a federal 
 union — The division of powers in it — What is the 
 British constitution — The unity of the poivers in it — 
 Opinion of Mr. Blake — Mr. Dicey and others. 
 
 The present constitution of Canada was framed with a 
 view of protecting the diversified interests of the several 
 provinces composing it and of securing efficiency, harmony 
 and permanency, in the working of a union of these pro- 
 vinces. With that view representatives of those colonies 
 which originally formed the union, agreed to a general 
 government charged with matters of common interest to 
 the whole country, and local governments charged with 
 o's. G.c. 2 
 
li GOVERNMENT IN CANADA. 
 
 the control of local matters within their respective sections, 
 for each of the provinces. It was desired as far as the cir- 
 cumstances would permit, to follow the British constitution 
 as a model ; and the executive authority or government was 
 agreed to be vested in the Sovereign of Great Britain and 
 Ireland and to be administered according to the principles 
 of the British constitution. There was to be a general 
 legislature or parliament for the federated provinces, 
 empowered to make laws for the peace, welfare and good 
 government of the federation — so far as a colony could go 
 — but to have no legislative control over a class of speci- 
 fied subjects. This excepted class of subjects was reserved 
 to the legislatures of the provinces, and these legislatures 
 Avere to have exclusive control over them. The local gov- 
 ernments and legislatures were created at the same time 
 and were to have the power of constructing their own 
 constitutions as they thought best ; the local legislatures 
 were to have the power of amending them from time to 
 time. Where concurrent jurisdiction obtained over any 
 one subject, the laws of the general parliament were to 
 prevail over those of the local legislature {a). 
 
 These wishes of the representatives of the provinces were 
 drafted into an Imperial statute called " The British North 
 America Act, 1867, " and came into force on the 1st of July 
 of that year. The preamble of the Act states that, 
 
 "Whereas the provinces of Canada, Nova Scotia and New 
 
 Brunswick have expressed their desire to be federally 
 
 ^ united into one Dominion, under the crown of the United 
 
 Kingdom of Great Britain and Ireland, with a constitution 
 
 similar in principle to that of the United Kingdom, and 
 
 " Whereas such a union would conduce to the welfare of 
 the provinces and promote the interests of the British 
 Empire, 
 
 (a) See Quebec Besolutions, 1 to 7. 
 
THE MONAECHIC FEDERATION. 3 
 
 " 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 Dominion 
 he provided for, but also that the nature of the executive 
 government therein be declared, 
 
 " And Whereas it is expedient that provision be made for 
 the eventual admission into the union of other parts of 
 British North America, 
 
 " Be it therefore enacted, etc. " 
 
 Then follow the terms of the union — the executive gov- 
 ernment and authority of and over Canada,, the privy 
 council, the Governor-General, the legislative powers of 
 the parliament of Canada — occupying some fifty-seven sec- 
 tions of the Act ; then the executive and legislative powers 
 of the provinces, and the last third of the Act to matters of 
 common interest, to the judicature, assets, etc., of the 
 Dominion and the provinces. 
 
 The preamble of the Act has been given in its exact 
 words, because there are two ideas in it that must be kept 
 constantly in view in any discussion upon it (&). 
 
 (a) The provinces desire to be federally united ; with 
 (b) A constitution similar in principle to that of the United 
 Kingdom of Great Britain and Ireland. 
 
 (b) Mr. pioey in his " Law of the Constitution " says : The pre- 
 amble to the British North America Act, 1867, asserts with official 
 mendacity that the provin,ces of the present Dominion have-expressed 
 their desire to unite into one Dominion, with a constitution similar in 
 principle to that of the United Kingdom. If preambles were intended to 
 express the truth, for the word " Kingdom," ought to have been substituted 
 " States. " Mr. H. Jenkins, C. B., undertakes to answer Mr. Dicey, point- 
 ing out that " the executive is not elected by the people, nor is it inde- 
 pendent of parliament, in the way in which the President of the United 
 States is independent of congress, with ministers who cannot sit there. 
 On the contrary the executive is carried on by means of ministers, re- 
 sponsible to parliament just as it is in England."— iaso Quarterly Beview, 
 April, 1887. 
 
4 GOVERNMENT IN CANADA. 
 
 It is not a little remarkable that the enacting part of the 
 British North America Act should, notwithstanding the 
 language of its preamble, contain no reference to the pro- 
 vinces being federally united, or to the Act itself being 
 the consummation of a federal union. 
 
 The word union however occurs very often in the pre- 
 amble and in the Act, and it mu?t be taken to mean a 
 federal union with a constitution similar to that of the 
 United Kingdom, because the second recital of the preamble 
 refers to " such a union," etc. The union is effected by a 
 proclamation on a certain day ; and the Act declares that 
 "the provinces of Canada, Nova Scotia and New Bruns- 
 wick shall form and be one Dominion under the name of 
 Canada, and on and after that day those three provinces 
 shall form and be one Dominion accordingly." The fifth 
 section is as follows : 
 
 Canada shall be divided into four provinces named 
 Ontario, Quebec, Nova Scotia and New Brunswick. 
 
 Canada before the passing of the Act was itself a union 
 of two provinces, but it did not come, as a union, into the 
 new union : it was " deemed to be severed and shall form 
 two separate provinces " as is the language of the sixth 
 section, — Upper Canada constituted the province of Ontario 
 and Lower Canada the province of Quebec. The other two 
 provinces retained their former names and limits. The 
 Act then proceeds in some forty subsequent sections to 
 deal with the new Canada, giving it a constitution similar 
 to that of Great Britain — executive, the Queen represent- 
 ed by a Governor-General, a privy council, and two houses 
 of parliament. 
 
 In the twelfth section it collects together all the powers, 
 authorities, and functions of the late Governors or Lieu- 
 tenant-Governors of the three provinces forming the union, 
 
THE MONAECHIO FEDERATION. 5 
 
 and vests these in the Governor-General of Canada, " as 
 far as the same continue in existence and capable of being 
 exercised after the union in relation to the government of 
 Canada." 
 
 There is nothing in this one third of the British North 
 America Act in regard to any distribution of legislative 
 power, nor indeed anything to show that there is to be a 
 limitation on any of the powers of the government of 
 Canada. By the seventeenth section " there shall be one 
 parliament for Canada consisting of the Queen, an upper 
 house styled the senate, and the house of commons." 
 The legislative powers of this parliament are given by the 
 ninety-first section, and in the preceding sections the pro- 
 vincial constitutions are set out in detail. 
 
 The executive power in the provinces does not appear to 
 he so clearly brought out as is the executive power over 
 Canada. Whatever may have been in the minds of the 
 framers of the Act this part of it is curiously worded. 
 Even the printing is significant. The whole Act is divided 
 in this way : 
 
 Preamble. 
 
 I. Preliminary. [Ifame of the Act, application to the 
 Queen.] 
 
 II. Union. [Uniting the Provinces ; dividing Canada 
 into Provinces.] 
 
 III. Executive Power. [Vested in the Queen; Privy 
 Council ; Governor.] 
 
 IV. Legislative Power. [Parliament at Ottawa ; Queen, 
 Senate, and Commons.] 
 
 V. Provincial Constitutions. Executive Power. 
 
6 GOVERNMENT IN CANADA. 
 
 VI. Distribution of the Legislative Power. Powers of the 
 Parliament; exclusive powers of the Provincial Legislatures. 
 
 VII. Judicature. 
 
 VIII. Eevenue; Debts; Assets; Taxation. 
 
 IX. Miscellaneous Provisions. 
 
 X. Intercolonial Eailway. 
 
 XL Admission of other Colonies. 
 
 It is worthy of note that the first three heads seem to 
 apply to Canada as made up of the provinces, not so evidently 
 the Canada of one parliament. The parliament is con- 
 stituted in IV., and although the Queen is named in that 
 head as the first element of parliament, the executive 
 authority of and over Canada is vested in her by a preced- 
 ing section. This authority is also " continued " in the 
 Queen, an expression that should apparently refer to 
 something having a previous existence. Now the Canada 
 of the Act had no previous existence, but was created by 
 it. It would therefore not be a strained construction to 
 refer the preceding section nine, to the provinces as well 
 as to the Dominion. 
 
 The first question we have to consider is, 
 
 WHAT IS A FEDERAL UNION ? 
 
 It would appear from the preamble of the Act that the 
 principles involved in a federation were to be of the essence 
 of the compact, and that the principles of the British con- 
 stitution were to be adjusted to that state of affairs so far 
 as they were applicable. This will be the more apparent 
 when a consideration of federal principles is fully under- 
 stood. These are quite new in British institutions and we 
 must look elsewhere for any experience in their workings. 
 
THE MONARCHIC FEDERATION. 7 
 
 The United States of America is offered as a convenient 
 example of a federal union though strictly it is not a federal 
 union. In the year 1776 the old thirteen colonies declared 
 themselves independent sovereign states. They soon after 
 formed a confederation but without giving it much execu- 
 tive power, and after an experience of ten years they found 
 how useless it was and how necessary some adequate 
 executive was over the whole people. In 1787 a convention 
 met and settled the present constitution of the United 
 States — nine states adopting it at the time and the others 
 coming in subsequently. The States were theretofore 
 sovereign states — they conferred certain powers on the 
 central government and they reserved all others to them- 
 selves. 
 
 Many of the ablest men in the union were of opinion that 
 by reason of the reserved powers and for other reasons the 
 States remained sovereign states and could go out of the 
 union as they pleased. It took a war to decide that this 
 was not the case — that they were only one people (c). " We 
 the people of the United States," are the opening words of 
 the constitution, and these were fatal to state secession just 
 as soon as the people of the United States vested the 
 executive power in the President of the United States : the 
 constitution in all its provisions looked to an indestruct- 
 ible union composed of indestructible states. 
 
 A federal union then means two perfectly independent 
 co-ordinate powers in the same state. The powers of each 
 are equally sovereign and neither are derived from the other. 
 The state governments are not subordinate to the general 
 government, nor the general government to the state gov- 
 ernments. They are co-ordinate governments standing 
 on the same level and deriving their powers from the same 
 
 (c) It is not pretended that the war of 1860-64 decided the question 
 judicially. 
 
8 GOVERNMENT IN CANADA. 
 
 sovereign authority. In their respective spheres neither 
 yields to the other. Each is independent and complete in 
 its own work ; incomplete and dependent on the other for 
 the complete work of government, [d). 
 
 In every federal union there are these two powers oper- 
 ating over the same territory, and over the same people. 
 The power of one legislature to make laws on one class of 
 subjects for every one in its own territory, is quite consis- 
 tent with the power of another legislature to make laws 
 for the same, people on all other subjects. The power of 
 making laws is useless without an executive power to carry 
 them out, and it follows that in every federal union there 
 must be a division of the executive power similar to that 
 in the legislative power. Such a division is unknown in 
 the British constitution, where the executive power centres 
 in the Queen. In our constitution " the executive govern- 
 ment and authority of and over Canada is," by the Act of 
 the Union, "declared to continue and be vested in the 
 Queen ;" but that is no more mutatis mutandis than the 
 expression : "We, the people of the United States, " so far 
 as the government of that country is concerned. The United 
 States government and the individual state governments 
 have eatfh an executive, making, up in the aggregate the 
 sovereign power of the people ; the central government 
 sovereign in one set of subjects everywhere ; the state 
 
 (d) Brownson's Works, vol. 18, Politics, pp. 126, 272. Mr. Freeman 
 gives this definition : Two requisites seem necessary to constitute a federal 
 government in its most perfect form. On the one hand each of the 
 members of the union must be wholly independent in these matters 
 which concern each member only. On the other hand all must be sub- 
 ject to a common power in those matters which concern the whole body 
 of members collectively. Federal government is in its essence a com- 
 promise between two opposite political systems. It is one that forms a 
 single state in its relations to other nations, but which consists of many 
 states with regard to its internal government. 
 
 Elsewhere Mr. Freeman describes a federation as having " a govern- 
 ment co-ordinate with the state governments, sovereign in its own sphere, 
 as they are sovereign in their sphere." 
 
THE MONAECHIO FEDERATION. [) 
 
 governments sovereign in all others within their own terri- 
 torial limits. 
 
 In a colony such as the old Canada was, and the present 
 Canada is, it makes no difference whatever, for the appli- 
 cation of these federal principles, that we are short of the 
 sovereign power to begin with. We are not concerned 
 • with sovereignty but only with executive power (e). 
 
 The imperial parliament has a portion of this sovereign 
 power, the provinces have another portion, and the Dom- 
 inion government has the remainder. From a federal 
 point of view there are two divisions in the executive, as 
 in the legislative branches of government. In the 
 United States no difficulty is experienced in the executive 
 of the nation, as contra-distinguished from the executive 
 of the states, but with us it has been denied, that the ex- 
 ecutive in the provinces is the Queen. The provinces of 
 . Ontario, Quebec, Manitoba, and British Columbia head 
 
 (e) Sovereignty under a federal system does not reside either in the 
 general or in the local governments ; in the United States it does not 
 reside in fact in hoth of these, but is in the Convention which moves the 
 constitution. All the American constitutional writers speak of a divided 
 sovereignty, while the English writers from Austin down regard this as 
 a contradiction in terms. Executive power may be divided, and the 
 difficulty in Canada is in accepting any federal doctrine on a point so 
 patent under British principles as the unity of the executive. See Chap- 
 ter in the Powers of Parliament, post. 
 
 Mr. Jenkyns, who criticizes Mr. Dicey, brings himself however to this 
 remarkable concession: — "A truer position would therefore seem to be 
 to recognize that sovereignty may be divided, and that with a rigid con- 
 stitution such as that of the United States each of tvsro or more different 
 bodies may within limits assigned to its jurisdiction be legally sov- 
 ereign." 
 
 Daniel Webster says: — "The sovereignty of government is an idea 
 belonging to the other side of the Atlantic. No such thing is known in 
 North America. Our governments are all limited. In Europe sov- 
 ereignty is of feudal origin and imports no more than the state of the 
 sovereign. It comprises his rights, duties, exemptions, prerogatives and 
 powers. But with us, all power is with the people. They alone are 
 sovereign; and they erect what governments they please, and confer on 
 them such powers as they please. None of these governments is sov- 
 ereign, in the European sense of the word, all being restrained by 
 written constitutions." 
 
10 GOVERNMENT IN CANADA. 
 
 their statutes " Her Majesty, by and with the advice and 
 consent &c., enacts as follows '" : shewing that the govern- 
 ments in these provinces believe Her Majesty to be a 
 part of their legislatures. On the other hand, there are 
 many judges and statesmen who regard this as unwar- 
 ranted and unauthorized; as yet no settlement of this 
 divergence of opinion has been arrived at. The constitutions 
 of the provincial executive authority in Nova Scotia and 
 New Brunswick remained as before the iinion, while in 
 Ontario and Quebec the new Lieutenant-Governors, though 
 appointed by the Governor-General of Canada, have the 
 same powers, authorities and functions as their predecessors, 
 so far as provincial legislation goes. Besides the heading 
 on the provincial statutes, which remains as before 1867, 
 the grants of public lands, always made by the crown, come 
 within the executive of the province ; and this is only one 
 of the many instances where the crown would seem to be 
 of necessity acting immediately in the affairs reserved to • 
 the provinces (/). 
 
 It would seem then that the constitution of Canada is to 
 be taken as on the federal basis, but that the principles of 
 the British constitution are to be applied to the working out 
 of government whenever and wherever such principles can 
 be applied. It is to be a federal union " with a constitution 
 similar in principle to that of the United Kingdom. " It is 
 difficult to conceive of forms of government more radi- 
 cally opposed to each other than a federal union and a 
 constitutional monarchy. " The whole British system," 
 says Mr. Blake, " is in contradiction to the federal system. 
 Their system is one of legislative union ; it is based upon 
 the omnipotence of the sole and central parliament." 
 The first thing that presents itself is, that in a federation, 
 
 (/) Mr. Mowat is of opinion that " it is easy to demonstrate that 
 far more of what is prerogative falls within the acknowledged authority 
 of the provinces than within the authority assigned to the Dominion. " 
 
MONARCHIC FEDERATION. 11 
 
 there being two sets of powers in the state, there must, of 
 necessity, be two sets of legislatures, and consequently be 
 two constitutions. Are both of these constitutions to be 
 "similar in principle to that of the United Kingdom ?" Or 
 which one of them, if not both ? The central government 
 is managed by a parliament, of which the Queen is expressly 
 one of the component parts ; but in view of the fact that the 
 local governments have had legislatures, with officers and 
 machinery very like a parliament, is the Queen necessarily 
 excluded from being a part of their constitutions ? But 
 however that may be, is not this certain, — "the executive 
 power of and over Canada is vested in the Queen ;'' the cen- 
 tral government has a portion only of the legislative power, 
 and can wield only a corresponding portion of the execu- 
 tive; now what power has the right to say that it is the 
 Queen, is the executive, for the remainder ? The conclusion 
 seems to be irresistible, that for whatever purpose the 
 executive of the legislature of a province requires the 
 Queen, the Queen is there as amply and as necessarily as 
 she is in the Dominion. 
 
 Whatever doubt there may be as to the executive powers, 
 it must be conceded that all similarity between a federation 
 and a constitutional monarchy vanishes as one comes to 
 consider the other functions of government ; it is express 
 that the law-making function is the opposite of what ob- 
 tains in England, and it is undeniable the law-interpreting 
 function is unheard of there. The judicature in a federal 
 constitution has very important powers and duties, and 
 stands towards the legislatures in a way altogether unknown 
 under the British constitution. The courts not only de- 
 cide the rights of litigants before the law, but they declare 
 whether or not any particular statute has been enacted by 
 the legislature having the authority to pass that statute. It 
 is their duty if an Act does not come from the proper legis- 
 lature, to say that it is void, it is unconstitutional. They 
 
12 GOVERNMENT IN CANADA. 
 
 place an authoritative interpretation and construction upon 
 the acts of the legislatures, judge when a given state of facts 
 does or does not come within the purview of the law, and they 
 decide not only as between the powers of the legislatures 
 themselves, but also declare as between their legislation 
 and the paramount law of the constitution whether it be 
 compatible with the ultimate authority in the empire. 
 
 " The question never arose, " said Mr. Blake in his 
 speech on the Supreme and Exchequer Courts Acts, "never 
 could arise, to British statesmen or a British judge, whether 
 an Act of the British parliament, affecting British subjects, 
 is withiu the competency of that parliament or not. Such 
 a notion is to them preposterous. It is to them incredible 
 that such a question could be raised. " 
 
 PRINCIPLES OF THE BRITISH CONBTITDTION. 
 
 The chief features of the British constitution are very 
 well known. Briefly, they are the unity of its executive, the 
 omnipotence of its legislature, and the unqualified subor- 
 dina,tion of the judicature to the statute law. The Queen 
 is the executive and the apex of constitutionStl power. 
 This executive is one and indivisible, it is the head of the 
 legislature, it is the source of the judicature. "Very few 
 propositions in politics," says Macaulay, " can be so per- 
 fectly demonstrated as this, that parliamentary govern- 
 ment cannot be carried on by two really equal and inde- 
 pendent powers in one empire." 
 
 The British legislature has no division of its powers, it 
 legislates on all classes of subjects and there is no limit to 
 its powers. In a sense it is omnipotent — that is it can do 
 whatever is not impossible ; it directs the executive in 
 practice, it is practically the parliament. It rules by a 
 
MOKAKCHIO FEDEEATION. 13 
 
 committee called the privy or cabinet council, its measures 
 must be interpreted by the judicature and carried into 
 effect by the executive. 
 
 In Great Britain the constitution imposes no restriction 
 on the povfer of government ; in the United States of 
 America, as with us, the constitution divides the powers 
 conceded by the people to government between the general 
 government and the particular state governments. Strictly 
 the government is one and its powers only are divided and 
 exercised by two sets of agents or ministries. The American 
 system is not founded on antagonism of classes, estates or 
 interests, and is in no sense a system of checks and 
 balances : the British constitution trusts to that antagonism 
 to preserve the government from pure centralism (g). 
 
 The judicature of England interprets the laws but does 
 not sit in judgment on the right to make them, does not 
 question their constitutionality in the same way as the 
 courts do on this side of the Atlantic. A law or statute 
 repealing the Magna Charta, or the Bill of Eights or some 
 of the other great props of the constitution would be start- 
 ling,^ possibly would be irregular, but it would not be 
 unconstitutional in the sense in which we in Canada or the 
 people of the American Union use that word. Each new 
 session of the British legislature brings with it the power 
 to repeal all the existing law and introduce a new order of 
 things ; and the judicature of the United Kingdom would 
 have no alternative but to construe its meaning judicially. 
 
 Prom the foregoing we can appreciate how complicated 
 and delicate are the adjustments of the machinery for 
 government in Canada. We have a federal union with 
 monarchic principles — -one system a contradiction to another, 
 
 (g) Brownson's Constitution of the United States. 
 
14 GOVEENMENT IN CANADA. 
 
 fis Mr. Blake says ; a piece of official mendacity, as Mr. 
 Dicey terms it. Yet Mr. Jenkyns, C.B., explains it all to 
 liis own satisfaction by elevating the parliament of Canada 
 and minimizing the provincial " Councils." Mr. Freeman, 
 writing in 1863, thinks that a monarchic federation though 
 it never yet existed " is not in itself at all contradictory to 
 the federal ideal." Mr. Justice Story has this remark 
 which is at least as applicable to our country as to his own, 
 and which must close, for the present, any scientific exposi- 
 tion of the constitution : " No man who has ever studied 
 the subject with profound attention has risen from the 
 labour without an increased and almost overwhelming sense 
 of its intricate relations and perplexing doubts." 
 
THE CONSTITUTION OF CANADA. 15 
 
 CHAPTER II. 
 
 THE CONSTITUTION OF CANADA. 
 
 The constitution, the agreement of the provinces — Federal 
 union with monarchic principles — Executive " of and 
 over Canada" in the Queen — A parliament with two 
 houses constituted ,and unchangeable — A privy council 
 jurisdiction of parliament limited legislatively— Pro- 
 vincial jurisdiction defined — The executive power fol- 
 lows the legislative power in a federation — The pro- 
 vincial constitutions and their alteration — The judica- 
 ture and its peculiar functions. 
 
 The Imperial Act, known as The British North America 
 Act, 1867, settled and defined the present constitution of 
 Canada. For many years previous to that date and on 
 several occasions, as will be seen hereafter, the question of 
 uniting portions of the British possessions in America was 
 actively discussed. After a number of concessions from 
 all parties the points of agreement were laid before the 
 British parliament, and a written constitution drafted 
 thereon. The late province of Canada, comprising Upper 
 and Lower Canada, and the provinces of Nova Scotia and 
 New Brunswick were federally united into one Dominion — 
 Canada — under the crown of the United Kingdom of Great 
 Britain and Ireland, with a constitution similar in principle 
 to that of the United Kingdom. By it one Parliament, 
 consisting of the Queen, an upper house, styled the senate, 
 and the house of commons, was given to Canada. The 
 executive power of and over Canada was continued, and is 
 
16 GOVERNMENT IN CANADA. 
 
 vested in the Queen. A council known as The Qdeen's 
 Peivt Council foe Canada to aid and advise in tlie govern- 
 ment of the country, was established, and an officer styled 
 the Governok-General of Canada, who possesses all the 
 powers, authorities and functions of our former governors, 
 so far as they can apply under the Act, represents Her 
 Majesty the Queen, and carries on the government in her 
 name and on her behalf. The Senate was a body ap- 
 pointed by the first Governor-General, and intended to be 
 as permanent as in the nature of things it could well be. 
 The members of the House of Commons were to be elected 
 by the votes of the people as their representatives. These 
 three constituent elements of our parliament, corresponding 
 to the Queen, Lords and Commons in England, are to be 
 expected in the Canadian constitution, when it is re- 
 membered that the principle of the Dominion government 
 was intended to be the same as that of the United Kingdom. 
 Here, as in England, the executive power is declared to be 
 vested in the Queen, but that power is of course limited by 
 the two houses of parliament. The basis of the British 
 constitution is, that the power of making, abrogating, 
 changing or explaining its laws belongs to parliament 
 alone. Bearing in mind the power of disallowance lodged 
 in the Governor-General and in the Queen, and also the 
 fact that the parliament of Canada has power to legislate 
 over a limited number of subjects only, there is no doubt 
 but that the Canadian parliament has, under its constitu- 
 tion, a parallel authority. Neither in England nor here 
 does the legislative power reside in the crown, though the 
 latter possesses the whole power of carrying out the laws. 
 The desire of the guardians of both constitutions is said to 
 be to keep the exercise of the legislative and executive 
 powers as distinct as possible from each other. In effect, 
 however, they are linked together, as will be seen when the 
 position and the peculiar functions of the privy council 
 
THE CONSTITUTION OF CANADA. 17 
 
 are examined. The power of the Crown being limited by 
 its constitutional advisers, the form of government as far 
 as it goes in that direction is a limited monarchy. The 
 power of the Crown in England was declared in 1688 to be 
 derived from a contract with the people. The people owe 
 allegiance to the Crown, and the Crown grants protection 
 in return. The Crown represents the nation — is supreme 
 magistrate, appoints judges, distributes honors, receives and 
 sends ambassadors, makes treaties, declares war, summons 
 and dissolves parliament. But all acts of the Crown must 
 be advised and transacted by ministers responsible to the 
 people, and the King or Queen must govern according to 
 law. 
 
 In Canada the royal authority is .the same as in 
 England — but the Queen acts here by and through a re- 
 presentative — a Governor-General. The contract with the 
 people in the constitution may be traced to the cession of 
 Canada by the Treaty of Paris in 1763, and reacknowledged 
 in various ways since, chiefly by the Act of Confederation, 
 which ^vas the work of the peoples' representatives. But 
 the functions of a Governor-General, though representing , 
 royalty, are more restricted than those appertaining to f 
 royalty ..itself. His duties do not involve many inter- ' 
 national offices — he has no ambassadors to send, and j 
 Canada as a colony has none to receive. There are no 
 treaties to be made nor wars to be declared ; but it is prob- 
 able that all the prerogatives of royalty necessary to a 
 colony are exerciseable by him, and attached to his person 
 and office. 
 
 The Senate, though corresponding largely to the 
 House of Lords in England, yet differs in many respects 
 from the latter body. The absence of a titled or hereditary 
 aristocracy in Canada, to which the members of our Upper 
 House may be supposed to belong, is one chief feature. 
 o's.G.c. 3 
 
18 GOVERNMENT IN CANADA. 
 
 The duration of their patents, the limit to the term of hold- 
 ing office, the restriction as to their numbers, the absence 
 of judicial functions, are a few of the points of difference 
 between them. The chief uses of both bodies may be said 
 to be the same — to prevent hasty legislation, and be in 
 composition a body fearless of wrathful constituents and 
 an equipose to preserve the balance of the constitution. 
 
 The third estate in the realm, the Commons, has fewer 
 points of dissimilarity than either of the other two. The 
 house of commons, under a constitutional form of govern- 
 ment such as we possess, is the important part of parlia- 
 ment. The members of the privy council, if not mainly of 
 their number, report in their house as to the manner of 
 conducting the government. The supplies for carrying on 
 all government originate with them. They are in fact the 
 people — the supreme ruling power. 
 
 With us, as in England, the concurrence of these three 
 elements of parliament is necessary to every measure. All 
 must act in concert in order to produce a law. If the lords 
 in England should refuse to act harmoniously with the 
 commons, new peers of the realm could be created in 
 a6cord with the popular wish as expressed by the action of 
 the commons. If the commons could not agree with the 
 lords of parliament, the former could be dissolved and new 
 members elected by the people. But the last power would 
 generally be found to be with the commons, who have 
 virtually, in England at all events, the determining of the 
 law in their own tands. In Canada it is much the same, but 
 in case a deadlock were to occur between the senate and the 
 commons, there could very well arise cases for which no 
 remedy is at hand. The number of senators under our con- 
 stitution cannot be increased but by a very small number, 
 and the total number may be still too small to command a 
 majority. If the commons and senate remained obstinately 
 
TH3D CONSTITUTION OF CANADA. 19 
 
 in opposition to each other the government could not go on. 
 It would be necessary to have an Imperial Act passed to 
 make legislation possible in any such unfortunate contin- 
 gency. \ 
 
 In case the senate and commons agree, bills may be 
 reserved by the Governor-General for the signification of 
 the Queen's pleasure, or he may withhold the Queen's as- 
 sent. Our position as a colony gives rise to the former 
 case, perhaps to both cases, as the latter has no counter- 
 part, in practice at least, in England. There, if a Bill is 
 passed in the lords and commons, the Queen does not 
 now refuse her assent thereto, the power of Veto having 
 fallen into disuse since the time of Queen Anne. Here, if 
 a Governor-General refused the Queen's assent to a bill, it 
 would be equivalent to an intimation to the ministry to 
 resign — a hint that he refuses to take their advice. While 
 possessing the undoubted right to refuse the Queen's assent 
 to any bill, a Canadian Governor-General will scarcely ever 
 refuse the Queen's assent. If he thinks the bill undesir- 
 able or objectionable he may possibly adopt the other 
 course of reserving it for Her Majesty's pleasure. 
 
 One peculiar feature of the British constitution is its 
 Cabinet or Pbivy Council. The privy council would 
 seem to mean the present and past advisers of the Crown. 
 In practice, however, the past advisers, who are usually in 
 opposition, do not tender advice till called upon in a change 
 of ministry. The cabinet council here, as in England, 
 means the ministry of administration for the time being — 
 the government, in fact, of the day. 
 
 The task of government is carried on by the ministry, or 
 government, or administration so long as they can command 
 a majority in the two houses of parliament, and are the 
 choice of the Crown. This is what is meant both in Eng- 
 
20 GOVERNMENT IN CANADA. 
 
 land and in Canada by responsible government. Parlia- 
 ment here has no judicial functions, nor does any of its. 
 branches form an appellate court, as in England. When 
 a change of ministry occurs by the action of parliament^ 
 its action is administrative. The functions of Canadian 
 parliaments otherwise are mainly legislative. 
 
 Other points of difference in the constitutions are chiefly 
 in details, and arise fjrom difference of position. The- 
 English constitution is for the most part unwritten. Some 
 few of the great props, such as the Magna Charta, the Bill 
 of Eights, the Act of Settlement, are embodied in Acts of 
 Parliament with the other laws of the land. Under a 
 federal constitution, the boundaries between the central 
 and constituent powers must be committed to writing. 
 A written constitution is essential to a federation. The 
 Dominion has, in fact, a written and defined constitu- 
 tion, but it is not limited by it. It possesses powers 
 which are neither defined nor limited, excepting -by the- 
 Confederation Act and the Imperial Statute 28 and ^9 Vic.,, 
 ch. 63. It has general sovereignty in all matters but those 
 from which it is expressly excluded, or in which, from the- 
 inherent condition of a dependency, it is necessarily and 
 impliedly restricted, (a). 
 
 In all colonies there is a division of the sovereign power, 
 part of it being exercised by the colonial legislature and 
 the remainder by the imperial legislature. In Canada 
 there is a threefold division of sovereignty — part of it im- 
 perial, part federal, and part provincial. These, although 
 they all exist and are exercised within the same territory, 
 are yet separate and distinct sovereignties acting separately 
 
 (a) Every subject proper to be legislated for in Canada falls either 
 witnin the sovereignty of the provinces or of the Dominion. In two in- 
 stances, that of immigration and agriculture, it may fall within both. In 
 matters where imperial interests are in question it is likely to fall within 
 neither. 
 
THE CONSTITUTION OF CANADA. 21 
 
 and independently of each other within their respective 
 spheres. 
 
 This is the basis and essence oi federal union and by the 
 ■constitution of Canada the several provinces comprising 
 the Dominion are united together in a union of that nature- 
 Three provinces — or we may say four provinces — that were 
 relatively independent of each other, but all equally depen- 
 dent on Great Britain, managed their own affairs up to the 
 year 1867. By a compact ratified in that year they agreed 
 io have one general parliament for all matters of common 
 interest, and to retain the management of their own local 
 and domestic concerns, virtually as they did before 1867. 
 That is the federal union of Canada. Like the states of 
 the American Union the provinces of the Dominion are 
 united for some purposes, and separated for others. There 
 is a federacy — a union for matters of general and, one 
 might say, national interest ; there is a separation for mat- 
 ters of local or internal interest. 
 
 In the American Union the separate states of the union 
 surrendered to the United States government a portion of 
 their sovereignty, and retained all the residue of it to them- 
 selves. This portion was given to the general government 
 absolutely and irrevocably. The State governments kept 
 the reserved powers to themselves — the central government 
 ■was one of enumerated powers. Every power not expressly 
 given to the central government was reserved to the local 
 government. The powers of both were derived from the 
 same source — the people — and it would require the people 
 to act before these powers could be altered. 
 
 The action of the separate colonies of Great Britain, 
 which now form Canada, was somewhat similar; but it is 
 not correct to say that the principle of surrendering their 
 legislative powers was just the reverse of what it was in 
 the United States. The provinces, reserving for them- 
 
22 GOVERNMENT IN CANADA. 
 
 selves the power to legislate on certain specified subjects, 
 surrendered other specified subjects to the central govern- 
 ment. Certain enumerated powers are allotted to each 
 government; all powers necessary for the good govern- 
 ment of Canada, and not already in the Dominion list,, 
 belong to the central government : all powers of a provincial. 
 nature and not already on the provincial list, belong to the 
 local government. There is no reservation of provincial 
 matters to Canada, and no reservation of Dominion 
 affairs to the provinces. Every subject not relating to the 
 provinces is given to the Dominion of Canada. Both 
 powers were derived from the will of the people of Canada, 
 acting under the British authority, and these powers cannot 
 be altered but by that same will and authority. 
 
 The provinces being the originators and controllers of the 
 Act of Union, assigned to themselves what they wanted — a 
 prescribed class of subjects over which they were to have 
 exclusive control, and they agreed that all other subjects 
 should ha dealt with by the general legislature for all the 
 provinces. The provinces reserved to themselves the control 
 of their own constitutions, so that they can amend them as 
 they choose, except as regards the office of Lieutenant- 
 Governor, who is a Dominion official. The executive 
 power in the provinces is not said to be vested in the 
 Lieutenant-Governor, nor is it expressly vested in the 
 Queen. On this point there has been a great diversity of 
 opinion. The writer can add nothing to what is said in the 
 previous chapter on the executive power of and over Canada. 
 The framers of the Act have left this part of it invitingly 
 open to a difference of opinion, and various opinions have 
 been expressed on it. 
 
 Whether or not the principles of the British constitution 
 apply to the provinces and the provincial legislatures is 
 another question much debated. The provinces or most of 
 
THE CONSTITUTION OF CANADA, 23 
 
 them have gone on with the government much as before 
 1867 — using the Queen's name as theretofore, having a 
 privy council, an upper house in some provinces, and a good 
 deal of the forms and ceremonies that appertain to parlia- 
 ments and parliamentary procedure. (6). 
 
 The Lieutenant-Grovernor who is the head of the pro- 
 vincial legislature- has acquiesced in all this — has indeed 
 been a prominent figure at all events in the forms and 
 ceremonies. He is a Dominion ofiicer, appointed virtually 
 by the government of tbe Dominion. And so after an 
 experience of twenty years it must be concluded that if the 
 provincial governments ought not to be modeled on the im- 
 perial parliament, the Dominion authorities are now pre- 
 cluded from questioning their propriety. But there were 
 other grounds apart from magnifying by forms the new 
 Dominion ; there was a new departure in the constitution 
 of a colony. It was to be no longer a legislative council 
 
 (6) It was much debated some years ago whether or not the provincial 
 legislatures were parliaments, but one circumstance will show that the 
 language of the Act of Union could not be otherwise than it is. A 
 parliament for Canada was intended ; what the provinces wanted did 
 not appear so evident, and was not necessary to be considered as they 
 might not (as in Ontario) have an upper house or want one. How could 
 the imperial legislsiture recognize a parliament with only one house ? 
 and what would be the use of decreeing them parliaments if at the next 
 session any one of them might declare that they required only a chair- 
 man for the purpose of their business ? On the other hand it is apparent 
 that a parliament as nearly like the imperial one as could be under the 
 changed circumstances, was intended for the Dominion, not only on 
 account of its importance, but also that its permananoe and stability 
 would be put beyond question. . Besides it was desirable to distinguish the 
 legislatures in some way. Compare the permanance given in the IT. S. 
 constitution to congress, and thp senate, and the house of representa- 
 tives, and sec. ii., article iv. as to the states of the union; " The United 
 States shall guarantee to every state in this union d republican form of 
 government, and shall protect each of them against invasion; and an 
 application of the legislature, or of the executive (when the legislature 
 cannot be convened), against domestic violence." Except -the tenth 
 amendment which reserves the powers not delegated to congress, to the 
 states this is substantially all that is said of the states or their constitu- 
 tions. The executive power is " vested in a President of the United 
 States of America." Yet no one will deny that the powers of the states 
 of the American Union are relatively of more importance towards the 
 United States government, than are the powers of the provinces of the 
 Dominion towards the parliament of Canada. 
 
24 GOVERNMENT 'IN CANADA. , 
 
 with a legislative assembly of prescribed powers, presided 
 over by a governor with very ample powers, but it was to 
 be, not only in name, but in substance a Parliament where 
 the power of two defined houses was to be the maximum 
 power of a dependency ; the power of the governor a 
 minimum power to be the constitutional power of the 
 Crown in England. All this was not effected at the time 
 so far as the Crown is concerned, but it has been effected 
 since. For the first time in a British colony there was a 
 real parliament — one sitting in the capital of the Dominion 
 of Canada, — a parliament such as the fathers of confedera- 
 tion wanted, and without which they would not be satisfied. 
 They were entering on a new phase of existence ; and so in 
 a few years later when the power of the Crown was defined. 
 Mr. Blake, the then Minister of Justice was able to say : 
 " Canada is jiot merely a colony or a province. She is a 
 Dominion composed of an aggregate of seven large provinces 
 federally united under one Imperial charter which expressly 
 recites that the constitution is to be similar to that of the 
 United Kingdom. Nay, more ; besides the power with 
 which she is invested over a large part of the affairs of the 
 inhabitants of the several provinces, she enjoys absolute 
 power of legislation and administration over the people and 
 Territories of. the, North-West, out of which she has already 
 created one province, and is empowered to create others, 
 with representative. institutions." (c) 
 
 The constitution while providing for these branches of 
 government, did not forget, that under a federal system 
 there ought to be some final authority to say whether or 
 not the different legislatiires or executives have kept within 
 their prescribed limits. 
 
 A provincial legislature may trench on the h'mits of the 
 Dominion, and the parliament of Canada may usurp local 
 
 (c) Hon. Mr. Blake, Minister of Justice, to the Earl of Carnarvon, 
 sessional papers D, 187G. 
 
THE CONSTITUTION OF CANADA. 25 
 
 rights. In either of these cases the courts must declare 
 whether these legislative bodies have transcended their 
 powers, and may declare acts of this nature unconstitu- 
 tional and void. 
 
 The duties of the Canadian courts are relatively of 
 more importance than those of the British courts. In 
 England the powers of the legislature are, so far as human 
 powers can be, omnipotent. Its acts are superior to judicial 
 interpretation, so far as the question of their constitution- 
 ality is concerned. In Canada the courts are in a different 
 position. Its humblest tribunal may declare an Act of 
 Parliament unconstitutional, and may refuse to follow it. 
 There can be no restraint put upon the due exercise of the 
 judicial power by any authority, Dominion or Provincial ; 
 for that would be to place these bodies above the law which 
 created them and granted them powers which are not 
 absolute, and which no legislation of theirs can make so. (d). 
 
 A similar judicial power exists in the United States. The 
 supreme court is the most important judicial tribunal in 
 the world. It is the supreme arbiter of the nation under 
 the constitution. 
 
 Accordingly power was given to the parliament of Canada 
 to provide for the constitution, maintenance and organ- 
 ization 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. This court would 
 not of course deprive every other court of declaring in a 
 proper case any Act to be unconstitutional, but it would 
 afford as was hoped an ultimate court so as to bring about 
 a uniformity of law in appeals from the various provinces. 
 The ultimate court however, is the judicial committee of 
 the privy council in England. 
 
 (d) Per Mr. Justice Wilson in the Queen v. Taylor, 3C U. C. R. 192. 
 
26 GOVERNMENT IN CANADA. 
 
 CHAPTER III. 
 
 THE PARLIAMENT OF CANADA. THE QUEEN. 
 
 The Queen — The first estate — The Governor-General — His 
 Deputy — Death of Sovereign — Summons senators, 
 speaker of senate — Calls together parliavjent — Other 
 Duties — Judges — Lieutenant-Governors — Statutory 
 Powers— Acts of 1791, 18Jfi, 1854, 1867— Royal instruc- 
 tions — Mr. Blake and Earl Carnarvon — Duties of 
 Governor — Mr. Todd's views — Duke of ^Newcastle's 
 instructions. 
 
 The first constituent element of the parliament of Can- 
 ada is not only in principle, but is in reality the same as the 
 first element of the parliament of the United Kingdom. 
 This is the King or Queen of Great Britain and Ireland, 
 who is the first estate in the realm. 
 
 In Canada the King or Queen is represented by a Gov- 
 ernor-General, who is appointed by the Secretary of State 
 for the coloniei?. He holds office during the pleasure of the 
 sovereign of Great Britain ; and in the event of the sover- 
 eign's death, for six months after that date, in case no new 
 appointment is made. An administrator or other officer may 
 be appointed to carry on the government of Canada on 
 behalf of and in the name of the Queen, and all the provisions 
 of the Confederation Act, in reference to the Governor- 
 General, apply to such administrator, or under whatever 
 other title he may be known. The Queen may authorize 
 the Governor-General to appoint any person or persons 
 jointly or severally to be his deputy or deputies, within any 
 part or parts of Canada, and the Governor-General may 
 
THE PARLIAMENT OF CANADA. 27 
 
 assign to such deputy or deputies, to exercise during bis 
 pleasure, such powers, functions and authorities of the 
 Governor-General as the latter may deem necessary or 
 expedient to assign to him or them, subject to any limit- 
 ations or directions expressed or given by the Queen. Any 
 such appointment, however, does not affect the powers, 
 authorities and functions of the Governor-General himself. 
 The death of the Governor does not dissolve the parlia- 
 ment. It is called to consult with the Queen, and not with 
 him ; and there might be ten governors during the reign of 
 one Queen, with the same parliament assisting at the last 
 as well as the first. He is not the caput principium et finis 
 of the colonial constitutions, (a) 
 
 The Governor-General chooses and summons his privy 
 councillors, and removes them when the government of 
 Canada requires it. 
 
 He also summons in the Queen's name, by instrument 
 under the Great Seal of Canada, persons of necessary quali- 
 fications for senatoi^s. At the time of the union of the 
 provinces in 1867, Lord Monck, the first Governor- General 
 of the Dominion of Canada, inserted the names of the 
 senators in the Queen's proclamation of the union of the 
 four provinces. Any additional senators are hereafter to 
 be summoned by the Governor-General ; and whenever a 
 vacancy happens in the senate by resignation, death or 
 otherwise, the Governor-General fills the vacancy by new 
 appointments of qualified persons. 
 
 He also appoints a speaker in the senate, and may re- 
 move and appoint another in his place. The speaker must 
 be a senator ; and in this particular the senate, as to that 
 officer, differs somewhat from the speaker of the House of 
 Lords in England, who is not necessarily a peer of the 
 
 (a) Chalmer's opinions. 
 
28 GOVERNMENT IN CANADA. 
 
 realm— or member of the house of lords. But in case he 
 is not a peer, he is not entitled to vote or take part in the 
 debates in the house. 
 
 The Governor-General summons and calls together the 
 house of commons in the Queen's name, and may dissolve 
 the same within the period of five years from its com- 
 mencement. Independent of this statutory provision the 
 prerogative right in relation to the dissolution of general 
 assemblies is at least as extensive in the colonies as it ever 
 was in England. In respect to the English parliament 
 and this prerogative of the Crown, whatever the extent of 
 it may be, every governor by his commission is empowered 
 to exercise it in his particular province. (6). 
 
 He is empowered to assent in the Queen's name to bills 
 passed in both houses. He may also refuse the Queen's 
 assent to such bills, or he may reserve the bill for the sig- 
 nification of the Queen's pleasure. He also, when the 
 Queen's pleasure is signified on a reserved bill, declares by 
 speech or message to the houses, or by proclamation, that 
 it has received the assent of the Queen in council. Copies 
 of all bills assented to are sent to one of the secretaries of 
 state, and may be disallowed at any time within two years. 
 He must recommend to the house of commons all money 
 bills. He originates no measure, and by himself has no 
 legislative powers. He has a negative voice only in the 
 legislature. 
 
 The Governor-General appoints the judges for the 
 superior, district and .county courts, except the judges of 
 the probate coart in Nova Scotia and New Brunswick, and 
 may remove judges of the superior courts on address of 
 the senate and house of commons. He has also, until 
 the parliament of Canada otherwise provides, the appoint- 
 
 (6) Chalmcr's opinions. 
 
THE PAKLIAMENT OF CANADA. 29 
 
 merit of such ofiQcers as may be deemed necessary and 
 proper for the effectual execution of the Confederation Act. 
 An appeal lies to the Governor- General in council from 
 any act or decision of any provincial authority in reference 
 to separate or dissentient schools in I'elation to education 
 affecting the rights and privileges of any supporters of 
 separate or dissentient schools. , In case provincial law 
 seems to the Governor-General in council requisite for this 
 purpose, and that it is not made by the proper authorities, 
 or in case the proper provincial authorities do not duly 
 execute the directions of the Governor-General in council in 
 any such appeal, the parliament of Canada may legislate 
 thereon, (c). 
 
 The Governor-General in council appoints a Lieutenant- 
 Governor for each province under the Great Seal of Canada, 
 and may appoint an administrator to execute the of&ce and 
 functions of Lieutenant-Governor during the absence, ill- 
 ness or other inabilities of the latter ; and the Governor- 
 General (d) may remove a Lieutenant-Governor within five 
 
 (c) Ex parte Eenaud et al (1 Pugsley, 273,) is a. case decided in New 
 Brunswick on a statute passed in 1871 repealing a school Act of 1858. 
 The statute of 1858 was, or was supposed to be, one providing for deno- 
 mination schools ; the Act repealing it in 1871 was upheld. In the fol- 
 lowing May the matter came up in the house of commons at Ottawa, 
 and was referred to England 'to the crown law officers and lords of the 
 privy council. They all declined to interfere, as the power of disallow- 
 ance vested with the Governor- General absolutely and exclusively. The 
 question came up in various ways with the same result. See Sees. 
 papers, 1877, No. 89 ; also Sess. papers 1874, No. 25. See a similar case 
 in Prince Edward Island Assembly Journals, 1878, page 2. 
 
 (d) In some parts of the Act of 1867 certain powers are given to the 
 Governor-General in council, and in other parts to the Governor-General, 
 omitting the words in council. This arose, it is Said, from adopting the 
 language of older Acts under which the Governor-General had unmis- 
 takeable powers apart from or independent of his council. Before the 
 era of responsible government in Canada the Governor-General by him- 
 self had large administrative powers, and the phrase Governor-General 
 had a different significance from what it has now. The council was then 
 an irresponsible body ; so long as they agreed with the Boyal representa- 
 tive they cared little for the popular element. The popular element now 
 controls the council, and it is apprehended that any acts of a Governor- 
 General for which an existing ministry is to be called to account by the 
 
30 GOVERNMENT IN CANADA. 
 
 years from his appointment, on assigning cause for such 
 removal. In March ,1878, M. Letellier vyas Lieutenant- 
 Governor of Quebec and complaining that his ministers did 
 not accept his recommendations, he dismissed them, sum- 
 moned others and reported the case to the Governor- 
 General. The dismissed premier, M. de Boucherville, sent 
 in a counter-statement, and subsequently a petition came 
 from certain members of the ex-ministry. The government 
 in power at Ottawa took no action, but in the following year 
 Sir John Macdonald, as chief minister, advised the re- 
 moval of M. Letellier from office, as his usefulness was gone. 
 (Sessional paper 1878-9). The Governor-General in council 
 may disallow Acts of a provincial legislature within one 
 year after their enactment in the same way as a disallow- 
 ance of an Act of the parliament of Canada is signified in 
 England, except that ia the latter case two years are 
 allowed to pass instead of one. 
 
 The power of the Governor-General in council to disallow 
 a provincial Act is as absolute as the power of the Queen 
 to disallow a Dominion Act, and is in each case to be the 
 result of the exercise of a sound discretion, for which 
 exercise of discretion the executive council for the time 
 
 psople, must be done on tlie advice of his ooanoil, no matter whether so 
 expressed or not. See Sir John A. Maodonald's letter to Sir Michael 
 Hicks Beach on the Letellier luestion, and the Hon. Edward Blake on 
 the Royal instructions to Lord Dufferin as to exercise of prerogative of 
 pardon by a Governor-General. Sir John Macdonald says: "Long before 
 confederation, the principle of what is known as ' responsible govern- 
 ment ' had been conceded to the colonies, now united in the Dominion. 
 Whether, therefore in any case power is given to the Governor-General 
 to act individually, or with the aid of his council, the act as one within 
 the scope of the Canadian constitution must be on the advice of a re- 
 sponsible minister. The distinction drawn in the statute between the 
 act of a Governor and an act of a Governor in council is a technical one, 
 and arose from the fact, that in Canada for a long period before con- 
 federation, certain acts of administraiion were required by law to be 
 done under the sanction of an order in council, while others did not 
 require that formality. In both cases, however, since responsible govern- 
 ment has been conceded, such acts have always been performed under 
 the advice of a responsible ministry." 
 
THE PAKLUMENT OF CANADA. 31 
 
 being is, in either case, to be responsible, as for other acts 
 of executive administration, (e). 
 
 The' twelfth section of the British North America Act 
 relates to the general powers of the Governor- General and 
 is as follows : 
 
 " All powers, authorities, and functions which, under 
 any Act of the parliament of Great Britain, or of the 
 parliament of the United Kingdom of Great Bi-itain and 
 , Ireland, or of the legislature of Upper Canada, Lower 
 Canada, Canada, Nova Scotia or New Brunswick, are at 
 the Union vested in or exerciseable by the respective 
 Governors or Lieutenant-Governors of those provinces, 
 with the advice, or with the advice and consent, of the 
 respective executive councils thereof, or in conjunction with 
 those councils, or with any number of members thereof, or 
 by those Governors or Lieutenant-Governors individually, 
 shall, as far as the same continue in existence and capable 
 of being exercised, after the union in relation to the govern- 
 ment of Canada, be vested in and exerciseable by the 
 Governor-General, with the advice or with the advice 
 and consent of or in conjunction with the Queen's privy 
 council for Canada, or any members thereof, or by the 
 Governor-General individually, as the case requires, sub- 
 ject nevertheless (excejjt with respect to such as exist under 
 Acts of the parliament of Great Britain or of the par- 
 liament of the United Kingdom of Great Britain and 
 Ireland) to be abolished or altered by the parliament of 
 Canada." 
 
 The Acts of the parliament of Great Britain which could 
 relate to this subject are 14 Geo. III., cap. 83, and 31 Geo. 
 III., cap. 81, both of which have already been referred to 
 as the Quebec Act of 1774 and the constitutional Act of 
 1791. 
 
 («) Per C. J. Harrison in Leprohon v. Ottawa, 40 U. 0. K. And see 
 valuable memorandum of Mr. Lash the late Deputy Minister of Justice, 
 post. 
 
32 GOVERNMENT IN CANADA. 
 
 There is nothing in the Quebec Act further than repeal- 
 ing the proclamation of October, 1763, as to the provisional 
 government and all the powers and authorities given to the 
 governors. 
 
 In the constitutional Act, 1791, there is for the first time 
 a Governor or Lieutenant-Governor given to the provinces 
 of Upper and Lower Canada, into which the former pro- 
 vince of Quebec was divided. The powers of the Governor 
 or Lieutenant-Governor under this Act were as follows : 
 
 (1) Bills passed by the Legislative Council and Assembly 
 of the Provinces, were, before becoming law, to be assented 
 to by His Majesty, or, in his name, by the Governor or 
 Lieutenant-Governor of the provinces. 
 
 (2) It was lawful for His Majesty, by instrument under 
 the sign manual, to authorize and direct the Governor or 
 Lieutenant-Governor to summon the members of the legis- 
 lative council — seven in Upper Canada and fifteen in 
 Lower Canada — and also such other persons to the council 
 as he may think fit. 
 
 (3) It was lawful for him to summon and call together 
 the legislative assembly. 
 
 (4) It was lawful for him to divide the provinces into 
 districts, to appoint returning oificers and the time and 
 place of holding elections. 
 
 As to assenting to bills, he declared such assent accord- 
 ing to his discretion, but only subject to the Act. He could 
 withhold his assent, or reserve it for His Majesty's con- 
 sideration. 
 
 A feature of this Act is that the Royal instructions to 
 three of the former Governors — Guy Carlton, Sir Frederick 
 Haldimand and Lord Dorchester — in reference to tithes 
 and the support of clergy were incorporated into the Act. 
 
THE CONSTITUTION OF CANADA. 33 
 
 The Union Act 8 & 4 Victoria cap. 85 (1840), an Act of 
 the Parliament of Great Britain and Ireland, has two 
 sections bearing upon this subject. Sec. 40, as to the 
 authority of the Governor is as follows : 
 
 "Nothing herein contained shall be construed to limit or 
 restrain the exercise of Her Majesty's prerogative in author- 
 izing, and not withstanding this Act, and any other Act or 
 Acts passed in the parliament of Great Britain, or in the 
 parliament of the United Kingdom of Great Britain and 
 Ireland, or of the legislature of the province of Quebec, or 
 of the provinces of Upper or Lower Canada respectively, it 
 shall be lawful for Her Majesty to authorize the Lieutenant- 
 Governor of the province of Canada to exercise and execute, 
 within such parts of the said province as Her Majesty shall 
 think fit, notwithstanding the presence of the Governor 
 within the province, such of the powers, functions, and 
 authority, as well judicial as other which before and at the 
 time of the passing of this Act were and are vested in the 
 Governor, Lieutenant-Governor or Person administering 
 the government of the provinces of Upper Canada and 
 Lower Canada respectively, or of either of them, and which 
 from and after the said re-union of the said two provinces 
 shall become vested in the Governor of the province of 
 Canada; and to authorize the Governor of the province of 
 Canada to assign, depute, substitute, and appoint any per- 
 son or persons, jointly or severally, to be his deputy or 
 deputies within any part or parts of the province of Canada, 
 and in that capacity to exercise, perform and execute during 
 the pleasure of the said Governor such of the powers, func- 
 tions and autkorities, as well judicial as other, as before 
 and at the time of the passing of this Act were and are 
 vested in the Governor, Lieutenant-Governor or person ad- 
 ministering the government of the provinces of Upper and 
 Lower Canada respectively, and which from and after the 
 union of the said provinces shall become vested in the 
 Governor of the province of Canada, as the Governor of the 
 province of Canada shall deem to be necessary or expedient ; 
 provided always, that by the appointment of a deputy or 
 deputies as aforesaid, the power and authority of the Gove- 
 nor of the province of Canada shall notbe abridged, altered, 
 o's.G.c. 4 
 
/ 
 
 34 GOVEENMENT IN CANADA. 
 
 or in any way affected, otherwise than as Her Majesty shall 
 think proper to direct." 
 
 Sec. 59 of the same Act reads : 
 
 "All powers and authorities expressed in this Act, to be 
 given to the Governor of the province of Canada, shall be 
 exercised by such Governor in conformity with and subject 
 to such orders, instructions and directions, as Her Majesty 
 shall from time to time see fit to make or issue." 
 
 The imperial enactment, 17 and 18 Vic, cap. 118 (1854), 
 which altered the Union Act, has no important reference to 
 the powers of Governor. It defines the word " Governor " 
 as comprehending the Governor, and in his absence, the 
 Lieutenant-Governor, or person authorized to execute the 
 office, or the functions of the Governor of Canada. 
 
 Of the numerous references made to the Governor of the 
 late province of Canada in the statutes from the union 
 till confederation, no detailed statement need be made here. 
 They refer to the necessary duties of the chief executive officer 
 of the province, entrusted with carrying on the government 
 under the constitution. In one place we find him made a 
 corporation sole — empowered to issue proclamations, com- 
 missions, &c. In 1845 an Act was passed relating to com- 
 missions, in the first section of which it was enacted that 
 on the demise of the Crown no new commissions need issue, 
 but a proclamation continuing all public officers in their 
 place should be sufficient. Section 2 is as follows : — "No- 
 thing in the next preceding section shall prejudice, or in 
 any way affect the rights or prerogative of the Crown, with 
 respect to any office or appointment, derived or held by 
 authority from it, nor prejudice, or affect the rights, or 
 prerogatives thereof in any other respect whatsoever." 
 Power is expressly reserved to Her Majesty in an Act passed 
 in the same year to prorogue or dissolve the provincial 
 parliament of Canada on the demise of the Crown. 
 
THE CONSTITUTfON OF CANADA. 35 
 
 The foregoing will give some idea of the statute law, on 
 the powers of a Governor-General ; and it is to this, rather 
 than to anything else, that recourse must, be had in order 
 to discover what are his powers, authorities and functions. 
 8uch prerogative rights of the Crown in England as are 
 called personal rights of the sovereign, are conveyed to 
 Governors of Colonies only by express delegation. The 
 royal commission and royal instructions generally con- 
 tained the extent of these, and they are now virtually 
 reduced to nothing. 
 
 The Governor of a British colony is in general invested 
 with royal authority, and is the representative and deputy 
 of the British sovereign. The sovereign alone exercises 
 the prerogatives of the Crown, and these royal rights and 
 powers cannot be vested in two persons at the same time. 
 They may and are, however, delegated to colonial Gover- 
 nors either by the charter governments of the colony or by 
 the royal commission and instructions, but only by express 
 terms. The fundamental rights and principles upon which 
 the royal authority rests, and which are necessary to main- 
 tain it, extend to the colonies. The Queen is sovereign of 
 Great Britain and of the colonies as well. She has per- 
 petuity, and can do no wrong constitutionally within the 
 British Dominions. The local prerogatives in England, 
 unless by express grant, do not extend to the colonies ; but 
 it seems on good authority that the minor prerogatives 
 and interests of the Crown may be taken up and dealt with 
 by the colonial legislatures. Until that happens the pre- 
 rogative in England prevails, {f) 
 
 This occurred in Ontario where a Lieutenant Governor 
 was, unless and until authorized by his legislature, held in- 
 capable of creating Queen's Counsel — the prerogative of 
 
 (/) Chitty on Prerogatives of the Crown. 
 
36 GOVERNMENT IN CANADA. 
 
 fountain of honor not being within his power under the 
 -British North America Act. (g) This prerogative is, 
 however, vested in the Governor General, be being the 
 Queen's representative in Canada, and he is competent to 
 appoint Queen's Counsel. The law on the question of pre- 
 rogative is laid down in Chalmer's Opinions of Eminent 
 Lawyers : 
 
 "The prerogative in the colonies, unless where it is 
 alridged by grants, etc., made to the inhabitants, is that 
 power over the subjects considered either separately or 
 collectively, which by the common law of England ab- 
 stracted from Acts of parliament, and grants of liberties, 
 &c., from the Crown to the subject, the King could right- 
 fully exercise in England." 
 
 The Common Law of England on the question of 
 prerogative is, therefore, the common law of the colonies 
 on that subject — unless where the charter or royal com- 
 mission interposes to extend or restrict it — and this law is 
 set out in 17 Edward IL, cap. 1, a statute simply declaratory 
 of the common law. The Governor-General is the repre- 
 sentative of the Qaeen, and the Queen is part of our 
 constitution. Whatever rights are necessary or exerciseable 
 in a colony must vest in him as royal representative, and 
 it is not so obviously material that they are statutory rather 
 than prerogative rights. 
 
 The royal commission and royal instructions are now 
 reduced to the most general terms, and contain no express 
 delegation of any prerogative rights. In 1875 a corres- 
 pondence began between Earl Carnarvon and Mr. Blake, 
 
 {g) The judges of the supreme court appear to differ on this point with 
 the law officers of the Crown in England. The latter are of opinion that 
 any provincial legislature might authorize by statute the Lieutenant- 
 Governor to make such appointments. An arrangement seems to have 
 been entered into in this matter, between the federal and provincial 
 authorities. See aess. papers, Canada, 1873, No. 50. Lenoir v. Eitchie, 
 5 S. C. B. 575. 
 
THE CONSTITUTION OF CANADA. 37 
 
 minister of justice, upon the commission and instructions 
 to governors. The word colony was objected to and 
 removed, and 'ordinances' was deemed unsuitable to a 
 government carried on by " law. " The prerogative of 
 pardon was for a long time in dispute but finally was left 
 as all other matters to the Governor acting on the advice of 
 his ministers. This correspondence is very interesting 
 and may be seen in the sessional papers of 1876, and on a 
 return made in 1879. Not only Canada but all the British 
 Colonies owe a debt of gratitude to the distinguished minis- 
 ter of justice who successfully pleaded their cause before 
 the Colonial Secretary on this occasion. See also the 
 correspondence on the question of disallowance of legisla- 
 tion, except on the advice of ministers. Sess. papers 1877, 
 No. 89. 
 
 When the Governor-General has dismissed one set of 
 ministers, and is about to choose another, then, and then 
 only, does he appear to stand alone under our constitution. 
 Even in this case, the new ministry is responsible — the 
 Crown is never responsible. The Crown is not supposed to 
 have ministers unless it accepts their advice. Its indepen- 
 dent judgment seems to be called into requisition when 
 the question is, to what party shall the reins of power be 
 entrusted. Once having made a selection, its acts are the 
 acts of the new ministry — it is no longer on the Governor- 
 General's advice', but on theirs, that the country is gov- 
 erned . (h) 
 
 So far as legislative powers are concerned, the Governor- 
 General possesses only a negative voice. The Queen herself 
 
 (h) Undoubtedly that theory is that the minister chosen by the King 
 is himself responsible for every circumstance or act which led to his ap- 
 pointment. This principle was established in the fullest manner, in 
 1834, when Sir Eobert Peel admitted his entire responsibility for the 
 dismissal of Lord Melbourne, by King VFilliam IV., though it was notori- 
 ous that he was in Italy at the time and had not been consulted on the 
 matter. — Yonge's Constitutional History, Chap. I. 
 
38 GOVERNMENT IN CANADAi 
 
 cannot be said but by fiction to possess any such powers, as 
 the first estate in parliament would seem to imply^ A 
 measure becomes law in England, it is true, with her 
 assent, but she would not now refuse her assent on a 
 measure passed in both houses. The two houses of par- 
 liament could send up a bill deposing her, or altering the 
 succession, and she would be obliged to sign it ; and if one 
 sovereign refused his or her assent, another could be got to 
 grant it. As a late vigorous, but rather rough and plain- 
 spoken, writer puts it : " She must sign her own death- 
 warrant, if the two houses unanimously send it up to 
 her. " (i) 
 
 The Governor-General has in the reservation of bills a 
 certain power, but beyond this and his instructions, and an 
 undoubted right to refuse advice tendered by ministers, the 
 principle of the British constitution leaves in him as the 
 Queen's representative no positive legislative powers what- 
 ever. 
 
 Mr. Todd considers that a Governor must be regarded as 
 a representative of the crown, and as the embodiment of 
 the monarchical element in a colony. He also regards 
 him as the source of all executive authority in a colony. 
 But it is manifest that the Governor is not the source but 
 the representative of executive authority in Canada. It 
 may be otherwise in crown colonies, but certainly not in 
 this Dominion. 
 
 The duties of a Governor may be summed up in three 
 heads : he must always act through advisers approved of 
 by parliament ; he must refrain from personal interference 
 with the ministers in their direction of local affairs except 
 to uphold the law or protect the people ; and he must con- 
 sent to all acts of government except in extreme cases. 
 
 (i) Bagehot, on the English constitution. 
 
THE CONSTITUTION OF CANADA. 39 
 
 The Duke of Newcastle as colonial secretary in 1862, 
 wrote to the governor of Queensland in this way : " The 
 general principle by which the governor of a colony pos- 
 sessing responsible government is to be guided is this : 
 that when imperial interests are concerned he is to consider 
 himself the guardian of these interests ; but in matters of 
 purely local politics, except in extreme cases, to follow the 
 advice of a ministry which appears to possess the confidence 
 of the legislature. But extreme cases are those which can- 
 not be reduced to any recognized principle arising in cir- 
 cumstances which it is impossible or unwise to anticipate, 
 and of which the full force can, in general be estimated 
 only by persons in immediate contact with them." (j) 
 
 (j) See Todd, Parliamentary Government in the Colonies, pp. 433, 440. 
 
40 GOVEENMENT IN CANADA. 
 
 CHAPTEE IV. 
 
 THE PARLIAMENT OF CANADA THE SENATE. 
 
 . Composition of the senate — Limited to 78 — The three divisions 
 —Qualifications of a senator — How the seat becomes 
 vacant — Title and precedence — Number in the cabinet — 
 Speaker — Quorum — Privileges — The House of Lords. — 
 Additional senators — Rule in such a case — Reason for a 
 second chamber — Mr. Smith's view — Mr. Todd's. 
 
 The senate or upper house is the second element in the 
 parliament of Canada, and was composed of 7'2 members 
 when first summoned at Confederation — 24 from Ontario, 
 24 from Quebec, and 24 from the Maritime Provinces of 
 Nova Scotia and New Brunswick. This number from the 
 Maritime Provinces included their share in the senate 
 whenever Prince Edward Island should be thereafter ad- 
 mitted. This happened in 1873. 
 
 In relation to the senate, Canada was deemed to consist 
 of three divisions equally represented by senators selected 
 from these sections. It is only in Quebec that the senators 
 represent particular localities. 
 
 Since confederation, in 1871, British Columbia has been 
 admitted, and sends three members. Manitoba, admitted 
 in 1870, sent two members until its population, according 
 to a decennial census, attained 50,000 inhabitants, and it 
 now sends three; and when the population reaches 75,000 
 it will be entitled to four representatives in the senate. 
 The Territories are not yet represented. When Newfound- 
 land is admitted it will be entitled to send four senators 
 
THE PARLIAMENT OF CANADA THE SENATE. 41 
 
 to the Canadian parliament. The Governor-General may 
 recommend the appointment of three, or six senators, re- 
 presenting equally the three divisions of Canada, and in 
 case the Queen thinks fit, one or two may be appointed 
 from Ontario, Quebec, and the Maritime Provinces. 
 
 The number of senators must never exceed 78, or after 
 the admission of Newfoundland, of 82. There should be 
 at present 78 members in the senate, the full number, On- 
 tario sending 24, Quebec 24, New Brunswick and Nova 
 Scotia 10 each, Manitoba 3, British Columbia 3, and Prince 
 Edward Island 4. (a) 
 
 The qualifications of a senator are as follows : 
 
 (1) He shall be of the full age of thirty years : 
 
 (2) He shall be either a natural born subject of the 
 Queen, or a subject of the Queen naturalized by an Act of 
 the parliament of Great Britain, or of the parliament of 
 the United Kingdom of Great Britain and Ireland, or of 
 the legislature of one of the Provinces of Upper Canada, 
 Lower Canada, Canada, Nova Seotia, or New Brunswick, 
 before the Union, or of the parliament of Canada after the 
 union : 
 
 (3) He shall be legally or equitably seized as of freehold 
 for his own use and be^iefit of lands or tenements held in 
 free and common socage, or seized or possessed for his own 
 use and benefit of lands or tenements held in franc-alleu or 
 in roture, within the province for which he is appointed, of 
 the value of four thousand dollars, over and above all rents, 
 dues, debts, charges, mortgages, and incumbrances due or 
 payable out of or charged on or affecting the same : 
 
 (4) His real and personal property shall be together worth 
 four thousand dollars over and above his debts and liabili- 
 ties : 
 
 (a) In point of fact there seem to be 22 from Ontario, the same number 
 from Quebec, 10 each from Nova f- cotia and New Brunswick, 4 from 
 Prince Edward Island and 3 from Manitoba and British Columbia each. 
 By the Act of 1887 the North-west Territories are entitled to two mem- 
 bers. 
 
42 GOVERNMENT IN CANADA. 
 
 (5) He shall be resident in the province for which he is 
 appointed : 
 
 (6) In the case of Quebec he shall have his real property 
 qualification in the electoral division for which he is ap- 
 pointed, or shall be resident in that division. 
 
 The first senators were summoned by the Queen by war- 
 rant under Her Majesty's sign manual, and their names 
 were inserted in the proclamation of the union in 1867. 
 Such persons as were called thereafter, and such persons 
 as shall be called, to the Senate, were and shall be, by the 
 Governor-General, in the Queen's name, by instrument 
 under the great seal of Canada. 
 
 A senator, subject to the following provisions, holds his 
 seat for life. 
 
 He may, by writing under his hand, resign his place in 
 the senate. 
 
 His seat becomes vacant — 
 
 (1) If for two consecutive sessions of the parliament he 
 fails to give his attendance in the senate : 
 
 (2) If he takes an oath or makes a declaration or ac- 
 knowledgment of allegiance, obedience, or adherence 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 insolvent debtors, or 
 becomes a public defaulter : 
 
 (4) If he is attainted of treason, or convicted of felony 
 or of any infamous crime : 
 
 (6) If he ceases to he qualified in respect of property or 
 of residence ; provided that a senator shall not be deemed 
 
THE PARLIAMENT OF CANADA THE SENATE. 43 
 
 to have ceased to be qualified in respect of residence by 
 reason only of his residing at the seat of the government 
 of Canada while holding an office under that government 
 requiring his presence there. 
 
 Any vacancy in the senate resulting from resignation, 
 death, or otherwise, is filled by the Grovernor-General's 
 appointment of a fit and qualified person to fill the vacancy. 
 
 Any question arising as to the qualification of a senator, 
 or to a vacancy in the senate, shall be heard and deter- 
 mined by the senate. 
 
 No senator is capable of being elected, or of sitting or 
 voting as a member of the house of commons. 
 
 No Ontario senator can be a member of the local legis- 
 lature of that province. 
 
 Every senator before taking his seat in the senate must 
 take and subscribe before the Governor-General, or some 
 person authorized by him, a prescribed oath and declara- 
 tion. 
 
 A senator is entitled to be styled honorable so long as he 
 is a membe;r of the senate, and no longer, and he ranks 
 fourth in the precedence assigned to persons in Canada, (b) 
 
 A member of the senate may be a member of the ministry 
 of administration ; and if his duties require him to live at 
 the seat oif government, it is not necessary that he should 
 reside in his own province if appointed out of Ontario. 
 Mr. Todd says : (c) " Following the practice previously 
 observed from the first introduction of responsible govern- 
 ment into the old province of Canada, it has been customary 
 that two members of the cabinet should have seats in the 
 
 (6) See table of precedence hereafter, 
 (c) Parliamentary government, page 48. 
 
44 GOVERNMENT IN CANADA. 
 
 upper house to take charge of public business therein, and 
 generally to represent the administration of the legislative 
 council or as it is now termed the senate. It is understood 
 that less than two members would not suffice ; and upon 
 the formation of the present administration in November, 
 1878, the number was increased to three, the speaker of 
 the senate being for the first time since confederation, made 
 a cabinet minister." 
 
 The senat-e is summoned to Ottawa, the seat of govern- 
 ment, at the sametime as-the commons is convened. The 
 speaker of the -senate as appointed by commission under 
 the gre'at seal by the Governor-General, and must be a senator, 
 though the analogous course in the house of lords in Eng- 
 land, as was observed, is not followed in this particular. 
 There the Lord Chancellor is ex officio speaker in the lords, 
 and is keeper of the Great Seal, but is not necessarily a 
 l)eer of the realm. 
 
 He presides over all the deliberations of the senate except 
 when they are in committee of the whole ; he decides ques- 
 tions of order. He addresses the senate from the floor of 
 the house and not from the chair, he has a vote in every 
 case and votes before the other senators. They do not 
 address him, though he occupies the chair in the senate, 
 but they address the rest of the senators. Any intemperate 
 or offensive language is dealt with by the senate, which 
 may censure the delinquent, and may also interfere to pre- 
 vent quarrels between senators. He reports the speech of 
 the Governor-General and informs the commons of the 
 necessity of the election of a speaker. 
 
 Fifteen members, including the speaker, form at present 
 a quorum for the transaction of business. Questions are 
 decided by a majority of votes ; and when these are equal, 
 the motion or bill is lost, or deemed to be in the negative. 
 
THE GOVERNMENT OF CANADA THE SENATE. 45 
 
 The privileges, immunities and powers of the senate and 
 its members are left to be defined by the parliament of 
 Canada, but they must never exceed those held by the 
 English house of commons and its members at the time 
 the parliament of Canada so defines them, (d) 
 
 The rules of the house and the procedure will be briefly 
 adverted to hereafter. 
 
 All bills may issue' in this, or in the house of commons 
 indifferently, (e) excepting money bills, which must origin- 
 ate in the commons. Bills of a judicial nature, such 
 as divorce bills, etc., and bills referring to the rights and 
 privileges of the senate, would, following the analogy of 
 the practice in the upper house in England, have their 
 commencement properly in the senate. 
 
 The senate does not appear to possess any other functions 
 than those of a branch of the legislature, or law-making 
 machinery of the state. In England the lords possess 
 judicial functions, as well as legislative ones, and their 
 house is the highest .court for/deciding cases referred to it 
 from the English courts. 
 
 Such frequent reference has been made to the house of 
 lords that a few words may be said here of this body, in 
 order to contrast it with the senate of our own country. 
 
 In England the house of lords is the aristocratic element 
 of parliament, and consists of lords temporal — that is, lay 
 noblemen or peers — and lords spiritual — that is, arch- 
 bishops and bishops. The temporal lords are called peers 
 of the realm, and when of full age, and not imbecile, are 
 entitled to sit in the house in virtue of their titles and 
 ancient rights. 
 
 (d) See next chapter on the Commons as to the privileges of members, 
 (c) The senate alone, apparently, takes the initiative in divorce bills. 
 
46 GOVERNMENT IN CANADA. 
 
 The lords are in number rather more than two-thirds of 
 the commoners. A part of them have judicial as well as 
 legislative functions. A special portion of them — all dis- 
 tinguished lawyers, or judges, form the appellate court of 
 the house of lords. Many of them are members of the 
 judicial committee of the privy council, which is the highest 
 appellate court in the empire for the colonies. 
 
 There are five orders of peers — dukes, marquises, earls, 
 viscounts and barons. This is their rank in the order of 
 precedence, but they all sit in the house as barons, that is, 
 as possessing a barony or landed estate. The bishops now 
 sit in the house in virtue of their estates, and not in respect 
 of their clerical dignities. They rank before barons and 
 after viscounts, and are lords of parliament, though not 
 peers of the realm. The spiritual lords number thirty — 
 the lay lords or peers vary between four and five hundred. 
 This number is maintained by the eldest sons of peers suc- 
 ceeding to their fathers' titles, and also by the crown 
 creating peers by patent of nobility. The crown is not 
 limited to the creation of any certain number of peers, when 
 a collision happens between the lords and commons, but 
 the popular element — the commons — suggests the appoint- 
 ment of as many as are necessary. 
 
 The house of lords in England may be said to be prac- 
 tically under the control of the commons. It has the 
 power to delay bills, and power to amend them in most 
 cases, but it has no other powers. Its political character 
 can be changed by the creation of new peers, to make it 
 accord with the ruling party in the commons, and so it 
 cannot stand out against them. When the commons has 
 made up its mind on any measure the lords are powerless 
 to resist. As Bagehot says, their veto is : — " We reject 
 your bill for this once, or these twice, or even these thrice, 
 but if you keep on sending it up, at last we won't reject it." 
 
THE PARLIAMENT OF CANADA THE SENATE. 47 
 
 The senate of Canada has larger powers than these. It 
 not only can delay legislation, as it very wisely did in the 
 Insolvency Bill of 1878, but legislation cannot be got with- 
 out it. It cannot vote the supplies, but it can vote against 
 the supplies, and put a stop to all government, as the 
 analogous body, the legislative council, foolishly did in 
 Quebec in 1879. Its political complexion cannot be 
 altered by the addition of new members because the maxi- 
 mum number is fixed at 78 for the present provinces, and 
 that number may now be reached. It is not controlled by 
 the commons in a sense, but it follows the commons as the 
 best expression of public opinion : it must be harmonized 
 with them by administration in accordance with their 
 views. 
 
 Any difference between the commons and senate here is 
 not so easily adjusted, or rather will not be whenever such 
 a contingency arises. Six members added to the senate 
 may not be sufficient to make it accord with the majority 
 in the commons. In 1874 six members ;svere recommended 
 to be appointed, but Earl Kimberley suggested that the 
 crown should take no action until a difference had arisen, 
 and that the creation of new members would supply a 
 remedy in the event of an actual collision. (/) Our senate 
 is in this respect differently situated from the upper house 
 in England, and its peculiar constitution may some day 
 give rise to a deadlock in the government. 
 
 The senate was intended to be composed of men of 
 wealth and stake in the country who were superior to party 
 and heedless of local or interested claims. It was thought 
 that to be answerable to constituents was frequently to be 
 obliged to pander to their whims — to legislate for their 
 special interests. This, it was hoped would be obviated by 
 
 (/) Senate Journals, 1877, page 130. 
 
48 GOVERNMENT IN CANADA. 
 
 appointments by the crown of persons whose own interests 
 would suffer when their country's suffered ; and that the 
 good of the country would, even for selfish motives, if for 
 no other, be promoted by them as being largely mixed up 
 with their own individual prosperity. A second house was 
 needed to prevent hasty or inconsiderate legislation — a 
 house wherein the largely increasing legislation for the 
 provinces conld be participated in and matured. It was 
 expected to elicit the sober second thought of the people. 
 It was felt also that some equipoise was needed to main- 
 tain the balance of the constitution. 
 
 Mr. .Gold win Smith, writing of the senate and of the 
 patronage cf the prime minister in Canada in regard to the 
 appointments to it, has the following : 
 
 " He " [the premier] " nominates for life the members of 
 the upper house of the legislature, whereas in the United 
 States the members of the senate are elected by the legis- 
 lature of the state which they represent. The result of 
 this theoretically conservative arrangement, in Canada is 
 practically the reverse of conservative. A nominee senate, 
 without even a basis of landed wealth, such as is possessed 
 by the house of lords, or any guarantee either for its reason- 
 able agreement with public opinion or for its independence of 
 government influence, has not, nor does it deserve to have, 
 any sort of authoritj'. The consequence is that, whereas 
 in the United States power is really divided between the 
 two houses, and the senate, with perfect freedom, controls 
 and reverses the acts of the popular house, in Canada 
 powfer centres entirely in the commons. The senate is IT 
 cipher ; it initiates nothing ; it adjourns till business comes 
 up to it from the commons, and only shows that it is alive 
 about once in each session by the rejection of some secondary 
 brnV] The salaries which the country pays to senators are 
 simply wasted, and the community is led to repose in the 
 belief that it has a conservative safeguard where it has 
 none. It is true that the institution can scarcely be said 
 to have had a fair trial. The patronage has been for the 
 most part in illiberal hands, and has been systematically 
 
THE PARLIAMENT OF CANADA — THE SENATE. 49 
 
 used for the objects of party or for narrower objects still. 
 The framers of the constitution, the British statesmen who 
 took part in the work at least, probably had a vision of an 
 assembly representing the great interests and professions 
 and eminence of all kinds, such as might have commanded 
 the respect of the nation. They, at all events, did not 
 mean that places in the legislature should be used as part 
 of the bribery fund of faction and as inducements to spend 
 money in elections. But it is more than doubtful whether, 
 where the basis of government is popular election, real 
 power can be conferred on any body which has not an 
 elective title." 
 
 Mr. Todd, in his "Parliamentary Government in the 
 Colonies," says : (</) 
 
 " A nominated upper chamber, though undoubtedly pre- 
 ferable in certain respects to an elected body, constitutes 
 no efficient or effectual check to democratic ascendancy. 
 And it is obviously not in this direction that we may expect 
 to find the point of agreement which shall reconcile the 
 conflicting claims of colonial legislative bodies. New South 
 Wales, the Dominion of Canada and Queensland severally 
 possess a nominated upper house, and yet difficulties similar 
 to those which have so long agitated Victoria are not un- 
 known in these colonies ... In Canada, the senate or 
 upper house have repeatedly exhibited an independent 
 spirit, and the expediency of curbing their powers in respect 
 to financial questions, has been mooted, at any rate by the 
 party now in opposition." 
 
 Mr. Freeman is especially favorable to a second chamber 
 under a Federal system, because he says it is capable of 
 representing therein the wants and wishes of the several 
 states or provinces included in the confederatton in their 
 separate standing. 
 
 The senate is nominated in Canada because a second^ 
 elective chamber would seem superfluous: because the 
 
 (;;) Page 622. 
 
 o's.G.c. 5 
 
60 GOVERNMENT IN CANADA. 
 
 model of the upper house in England was kept in view, 
 and because two houses of some character were deemed 
 necessary. An elective second house would be a second 
 commons, and would ask and require larger powers than a 
 nominated senate. The choice in 1867 was between a 
 nominated senate and no senate. 
 
GOVERNMENT IN CANADA. 51 
 
 CHAPTER V. 
 
 THE PARLIAMENT OF CANADA THE COMMONS. 
 
 Former and present composition of the comm,ons — Who may 
 not be members — Who may and who may not vote for 
 members — Election trials — Duration of the commons — 
 Speaker — Quorum — Privileges of the house ; of its mem- 
 bers. 
 
 The house of commons is the third element in the parlia- 
 ment of Canada, and was originally composed of 181 
 members, representing the four provinces as follows : 
 
 Ontario, represented by 82 members. 
 
 Quebec, " 65 
 
 Nova Scotia, " 19 
 
 New Brunswick " 15 " 
 
 Of the provinces annexed to Canada since confederation 
 the following is the representation : 
 
 Prince Edward Island, represented by 6 members. 
 Manitoba, " 4 " 
 
 British Columbia, " 6 
 
 Provision was made at the passing of the Confederation 
 Act for an increase of the number of members in the house, 
 but the proportionate representation of the four provinces 
 comprising Canada in 1867 must not be disturbed by any 
 such increase. The parliament of Canada has power over 
 this increased representation. It was further provided 
 
52 GOVERNMENT IN CANADA. 
 
 that in 1871, when a census of the people was to be taken, 
 an adjustment of the representation of the four provinces 
 should take place in parliament. This gave rise to a 
 representation of 206 members, and subsequently the 
 number was increased to 211 as follows : 
 
 Ontario 92 members. 
 
 Quebec 65 
 
 New Brunswick 16 
 
 Nova Scotia 21 
 
 Manitoba 5 
 
 Prince Edward Island 6 
 
 British Columbia 6 
 
 In all 211 
 
 To these must now be added as representing the North- 
 West Territories : 
 
 Saskatchewan and Alberta, 1 each... 2 members. 
 East and West Assiniboia, 1 each ... 2 " 
 
 The different provinces are divided up into electoral dis- 
 tricts, each of which returns a member to the commons on 
 his having received a majority of polled votes in the riding. 
 The writs for the election of members issue out of the ofi&ce 
 of the clerk of the crown in chancery, and are usually but 
 not necessarily addressed to the sheriff or registrar as 
 returning of&cer in the electoral district. A day for the 
 nomination of candidates and the day and place for holding 
 the polls are then appointed. Each candidate must deposit 
 $200 with the returning officer to apply towards the pay- 
 ment of election expenses. The candidates need have no 
 real property qualification, but must be either natural 
 b(Jrn or naturalized subjects of the Queen. No member of 
 
THE PARLIAMENT OF CANADA — THE COMMONS. §3 
 
 the senate of Canada or of the provincial legislature of 
 Ontario is eligible to sit in the commons. 
 
 The following classes of persons are ineligible as members 
 of the commons ; 
 
 (1). No person accepting or holding any office, commis- 
 sion or employment, permanent or temporary, in the service 
 of the government of Canada, or of any of its officers, at the 
 nomination of the crown to which is attached any fee, any 
 salary, wages, allowance, emolument or property of any 
 kind, shall be eligible to sit or vote as a member of the 
 commons. 
 
 (2). No sheriff, registrar of deeds, clerk of the peace or 
 county attorney can be a member. 
 
 (3). No contractor directly or indirectly, except a con- 
 tractor for a loan of money or securities to the government 
 after public competition. But members of Her Majesty's 
 privy council, holding offices of state in Ottawa, are not 
 ineligible. Nor are militia officers, or men who receive 
 their daily pay or remuneration for enrolment, or the care 
 of arms or drill instruction. 
 
 No senator or member of the local legislature of Ontario, 
 even before the recent legislation was eligible to sit in the 
 commons. 
 
 Each member is allowed $10 per day in a session under 
 thirty days — if beyond thirty days, $1,000 and not more. 
 He is also allowed, as are the senators, ten cents a mile 
 going and coming by the nearest mail route, for mileage. 
 
 The qualifications of voters are ranged under the follow- 
 ing heads :. 
 
54 GOVERNMENT IN CANADA. 
 
 1 — PEBSONS ENTITLED TO VOTE. 
 
 Every person shall be entitled to be registered, in any 
 year, upon the list of voters for the proper polling district 
 of any electoral district or portion of an electoral district, 
 and when so registered, to vote, if such person — 
 
 (1). Is of the full age of twenty-one years and not dis- 
 qualified or prevented by dominion law from voting, 
 
 (2). is a British subject by birth or naturalization, 
 
 (3). Is the owner of real property, actually worth — if in 
 a city— 1300 ; in a town, $200; elsewhere, $150, 
 
 (4). Is a tenant under a lease of $2 per month, or $6 per 
 quarter, or $12 half-yearly, or annual rental of $20. 
 
 (5). Is a bona fide occupant for one year before applying 
 to be put on the list of. land valued as if he were owner. (3) 
 
 (6). Is a resident and assessed for $300 income, 
 
 (7). Is a farmer's son under certain circumstances, 
 
 (8). Is son of an owner, other than a farmer, under 
 similar circumstances, 
 
 (9). Is a fisherman owning real property, boats, nets, 
 fishing gear and tackle, worth at least $150, 
 
 (10). Is a life annuitant for at least $100, secured in 
 real estate in Canada. 
 
 2 PERSONS NOT ENTITLED TO VOTE. 
 
 (1). Judges of every court whose appointment rests with 
 the Governor-General, 
 
 (2). Eevising-ofiQcers, returning-officers and election 
 clerks; but a returning-of&cer can vote where there is a tie. 
 
THE PARLIAMENT OF CANADA THE COMMONS. 55 
 
 (3). Agents of candidates, counsel, attorney, solicitor, 
 agent or clerk, who has received or expects to receive any 
 sum of money, fee, office or place of emolument, or any 
 promise, pledge or security for any of these. 
 
 Very stringent provisions are enacted in regard to bribery 
 and corrupt practices at elections ; and when any candidate 
 is returned, any voter may file a petition complaining of 
 the undue return or undue election of a member, or of no 
 return, or of a double return or unlawful act on the part of 
 the person returned as member ; and on notice of the pre- 
 sentation of the petition being given to the respondent the 
 parties can go to trial on the question, as provided by the 
 Controverted Elections Act. These cases are tried by 
 various courts in the different provinces, and an appeal lies 
 therefrom to the supreme court at Ottawa. 
 
 All the elections, except in a few places, are now made 
 returnable on one day, fixed by the Governor- General, and 
 the various returning officers send in their returns to the 
 clerk of the crown in chancery at Ottawa. Thither the 
 members are summoned by proclamation in the Canada 
 Gazette, at the same time as the senate is assembled. Each 
 member sits for five years, which is the duration of each 
 parliament, unless sooner dissolved by the Governor- 
 General. Twenty members, reckoning the speaker, form a 
 quorum for the transacting of business. The members 
 themselves elect their speaker at the first sitting, and he 
 continues in office during that parliament, unless a vacancy 
 occurs. When a vacancy occurs in the office of speaker 1 y 
 death, resignation or otherwise it is filled by the house, in 
 the same way as a speaker is originally appointed. 
 
 The speaker receives a salary of $4,000, per annum and 
 has very important duties to perform. He presides at all 
 meetings of the house but haiS no vote except when there is 
 
56 GOVERNMENT IN CANADA. 
 
 a tie. In his absence there was a provision that he might 
 call on the chairman of committees to act as deputy 
 speaker. But for some two sessions past the house follow- 
 ing the English practice has appointed a deputy speaker 
 who takes the chair in the speaker's absence. At the 
 dissolution of a parliament the speaker is deemed for 
 certain purposes to retain the position until a new speaker 
 is chosen. 
 
 The reports of judges in respect of controverted elections 
 are made to the speaker and he gives orders for the issue 
 of new writs. Members who resign their seats inform the 
 house through him and he proceeds in the same way to 
 have the vacancy filled up, whether it be caused by death 
 or acceptance of office, or as the case may be. It is through 
 him that the privileges of the house and its members are 
 claimed at the opening of each parliament, he announces 
 and reads the message from the Governor-General, and he 
 presents the supply bill with the usual formula shewing 
 that the commons are the important factors of parliament 
 in that respect. He has charge of the decorum of the 
 house, reprimands members when necessary, and may 
 name a member for any breach of parliamentary etiquette. 
 He states motions and their amendments, signs votes and 
 proceedings, receives messages from eminent persons and 
 from the upper house, with a variety of other duties apper- 
 taining by custom to or imposed by regulations on his office. 
 He has charge of the officers and clerks in attendance on 
 the house, fills vacancies therein, and fixes salaries of new 
 employees. Both speakers have to deal with the library of 
 parliament, and during the session no person except the 
 Governor-General, the members of the privy council and 
 of the senate and commons, and the officers of both houses 
 can resort thither unless under authority from one of the 
 speakers. The house of commons is summoned by instru- 
 ment, under the great seal of Canada, in the Queen's name, 
 
THE PARLIAMENT OF CANADA THE COMMOKS. 57 
 
 by the Governor-General, at the same time with the senate. 
 Each member of the commons must take the oath of 
 allegiance, as a senator does, before taking his seat in the 
 house. When a vacancy occurs in the commons it is filled 
 by the issue of a new writ, from the office of the clerk of the 
 crown in chancery, for the election of a member for the 
 unrepresented constituency. 
 
 The privileges, immunities and powers of the commons 
 and its members like those of the senate and its members, 
 are such as may be from time to time defined by the 
 parliament of Canada, but they must never exceed those 
 held, enjoyed and exercised by the commons of England 
 or its members, at the time such defining act is passed 
 in Canada. The eighteenth section of the Confedera- 
 tion Act being somewhat ambiguous, an amending Act 
 was passed at Westminster in 1875 called The Parliament 
 of Canada Act, 1875, to put beyond doubt that section, (a) 
 Otherwise it may have been construed that the privileges, 
 etc. of the senate and commons in Canada were to be those 
 of the commons in England in the year 1867, and not the 
 year in which any Act of parliament of Canada was passed 
 defining such privileges, immunities and powers. No Act 
 has been passed by the parhament of Canada in reference 
 to this matter. 
 
 There is a law and' custom of parliament in England 
 forming part of the common law of ,the land ; the priv- 
 ileges of parliament which it affords are large and in- 
 definite and properly left indefinite, like the definition of 
 fraud so that no new case not within the line of priv- 
 ilege can be devised " under the pretence thereof," as 
 Blackstone says, " to harass any refractory member and 
 violate the freedom of parliament." Every political in- 
 
 (a) 38-39 Vic. (Imp.) cap. 38. 
 
58 GOVERNMENT IN CANADA. 
 
 stitution, whether invested " with the authority to make 
 laws or to explain and enforce them must of necessity 
 possess all the powers requisite to ensure the purposes for 
 which it was created." It might remove or exclude or 
 expel a member. It can commit for contempt till the 
 close of the existing session,- but no longer. 
 
 The house of commons has the sole right of beginning 
 the grants of- aids and supplies, and of directing and 
 limiting the ends, purposes, considerations and qualifica- 
 tions of such grants, without the upper house having the 
 power to alter or change them. They can enforce at any 
 time the standing order to prohibit their speeches and 
 proceedings from being published. 
 
 The members themselves are privileged from arrest for 
 forty days after every prorogation, and for forty days be- 
 fore the next appointed meeting, and after a dissolution for a 
 reasonable time to return home, (b) This does not apply to 
 treason, felony, and many other charges of a less grave 
 nature. There is an ancient privilege of exemption from 
 serving on juries or attending as witnesses ; but in the 
 latter case, the house gives leave if the public business 
 will not suffer by it. There is freedom of speech and 
 freedom from libellous attack. The privilege of frank- 
 ing was said to have the same limit as that of arrest. It 
 was the right of sending a certain number of letters daily 
 through the post office, whether the house be sitting or 
 not. (c) Members have the right to enter their dissent or 
 remonstrance in the, journals of the house. 
 
 (6) Eundo, Morando, et'propria Uedeundo. 
 
 (c) This was denied to the Legislature of Upper Canada in 1837. 
 
GOVEKNMENT IN CANADA. 59 
 
 CHAPTEE VI. 
 
 THE queen's privy COUNCIL FOR CANADA. 
 
 Who are privy councillors and who cabinet councillors — ■ 
 Oath and office and duties — Number — Portfolios — Carry 
 on administrative government with approval of parlia- 
 ment — Cabinet questions — Relation to executive and to 
 legislature — Privy council a peculiarly British institu- 
 tion. 
 
 The privy council of Canada, as in England, is assumed 
 to be the past and present advisers of the crown. Privy 
 councillors are chosen to aid and advise in the government 
 of Canada, and are summoned by the Governor-General to 
 advise and assist him in every way that good councillors 
 should do. Ex-cabinet ministers since confederation, are 
 said to be members of the privy council, merely as honorary 
 members and in analogy to the English custom ; but what 
 is generally understood by the term is the acting ministry 
 for the time being, (a) This is known here and in Eng- 
 land as the cabinet or privy council. The nominal privy 
 councillors who are not supporters of the ministry take no 
 part in the government. They are members of the privy 
 council not of the cabinet. They are styled " honorable " 
 for life and rank next after the judges of law and equity. 
 
 All the privy councillors are sworn in as such on accept- 
 ing office, and are- chosen for life,- that is, they are liable 
 to be summoned at any time to take part in forming a 
 
 (a) There are at present 34 members of the privy council who are 
 not members of the cabinet. 
 
60 GOVERNMENT IN CANADA. 
 
 government. In order to be a member of the government 
 a privy councillor, if not a senator, must have a seat in the 
 commons. An acting minister must be in either house, 
 but he cannot be a member of both houses at the same 
 time. A member of the privy council may be a member of 
 the cabinet and yet have no portfolio in the government ; 
 that is, may not be the head of any of the departments of 
 state, but he is equally answerable with his colleagues to 
 the house of commons or to the senate for the conduct of 
 the public affairs of the Dominion. The government as a 
 body is responsible for all. acts of its ministers whether they 
 have portfolios or not. 
 
 The cabinet, or ministry, is now composed of fourteen 
 members; thirteen of these have charge of the different 
 departments into which the work of governing the country 
 is divided, and one is president of the council, or without a 
 portfolio or departmental office. The practice now prevails, 
 as has already been pointed out, of having two of the 
 cabinet ministers selected from members of the senate. 
 (See chapter on the senate.) The duties of the ministers 
 having charge of departments are laid down by Act of 
 parliament, and they are obliged to report annually to 
 parliament as to the matters under their control. This 
 most important part of the management of public affairs 
 is called administrative government and will be fully 
 detailed hereafter. The number of cabinet ministers since 
 1867 has been thirteen, but the number was increased in 
 1873 to fourteen, two without portfolios. Only one minister 
 is at present without an office. 
 
 Besides the individual duties of the ministers, the privy 
 council, as a body, has very important powers and duties. 
 It advises the Governor-General, it may be safely said, 
 upon all his official acts, and it, and not he, is respon- 
 sible for all parliamentary enactments, all proclamations, 
 
THE queen's privy COUNCIL FOR CANADA. 61 
 
 all orders in council, directing enquiries in public matters, 
 taking action in unforseen emergencies, and advising in 
 all matters done officially by the Governor-General in 
 council and out of it. One of its members, tbe minister of 
 justice, takes the place of the crown law officers in England 
 at least for a large part of the work of advising the 
 crown. 
 
 As advisers of the crown, they must see not only that 
 the parliament of Canada keeps within its due limits, but 
 that the provincial legislatures do not transgress their con- 
 stitutional bounds in legislation or otherwise. They advise 
 the Governor-General of the proper persons to be Lieuten- 
 ant-Governors of the provinces and suggest their removal 
 when the gravity of the case may require it. They are, in 
 short, responsible for the legislation passed in patliament, 
 or permitted, or omitted to be passed ; for the due execution 
 of the laws, whether done under their own supervision in 
 the department of state or otherwise ; and with them rests 
 the appointment of judges for the construction and inter- 
 pretation of the laws, when'enacted. In this country they 
 are themselves relieved from any judicial functions, as there 
 is no such thing as a judicial committee of the privy council 
 in Canada, as a court of appeal. The occasion does not 
 arise for similar duties to the judicial committee of the 
 privy council in England, as the latter entertains chiefly 
 appeals from the colonies. The judicial committee of the 
 privy council in England determines all matters that can 
 come judicially before the Queen; amongst others, it 
 decides all matters of colonial reference, and is the ultimate 
 resort of a colonial subject, on an appeal from the laws of 
 his own colony. The privy council in Canada can refer 
 certain matters to the supreme court at Ottawa, as will be 
 noticed hereafter ; but it does not form a court and has 
 no judicial powers or duties. 
 
62 GOVERNMENT IN CANADA. 
 
 The duties of the privy councillors, as defined by their 
 oath of office, are to serve her Majesty truly and faithfully 
 in her council ; to keep secret all matters treated, debated 
 or resolved in the privy council from all persons outside of 
 that body ; and if the matter refer to any member of the 
 council concerning his loyalty and fidelity, then it must not 
 be disclosed to that member until the Queen's pleasure be 
 known in that behalf. They must in all things taithfully, 
 honestly and truly declare their mind and opinion to the 
 honor and benefit of Her Majesty ; and in general be vigi- 
 lant, diligent and circumspect in all their doings touching 
 the Queen's affairs, as good councillors should be. (h) 
 
 The proceedings of the privy council are secret, or sup- 
 posed to be so, and the council is presided over by one of 
 its members called the president of the council. The 
 Governor-General is not often present; on exceptional 
 occasions he presides. The practice was -reported to Eng- 
 land to be that the questions of state are discussed by the 
 council and by the first minister, and reported to the 
 Governor-General. 
 
 Complete harmony of action is required among the mem- 
 bers of the government when what are called " cabinet 
 questions " arise. If any member of the government fails 
 to agree with the views of the council on such questions it 
 is his duty to resign. On these questions the government 
 of the day stands or falls together. Measures initiated by 
 members of the government are not necessarily measures 
 upon which, if the ministry are defeate4 ^^ ^^^ commons, 
 it would be their duty to resign. But if the ministry make 
 any question, otherwise not a government measure, to be 
 
 (6) These functions of the privy' oounoil are exercised by the cabinet 
 council ; but the oath taken by each privy councillor on his accepting 
 of&oe would oblige him to be mindful of these duties during his life-time, 
 his appointment lasting during that period. 
 
THE queen's PKIVY COUNCIL FOE CANADA. 63 
 
 such, then their defeat on that would give rise to votes of 
 want of confidence, which, if successful, would necessitate 
 a change of ministry — a new set of cabinet ministers. 
 
 The cabinet council is, therefore, a fluctuating body, 
 which, besides being the choice of the crown, is also the 
 choice of the two houses of parliament. The cabinet, on 
 one side, takes its origin in the two houses of parliament, 
 chiefly in the commons, and on the other side, it exists and 
 acts in the executive. It is well defined as the connecting 
 link between the legislative and executive authority. For, 
 although in theory the Queen is the executive, the privy 
 council or government is the real executive. The other 
 is a fiction perpetuated in England but none the less a 
 fiction. The Queen, or Governor-General in Canada, is 
 the executive, does every thing, it is true, but does it be- 
 cause the privy council advises it to be done ; and without 
 such advice nothing is done. 
 
 The privy council is a committee of the house of parlia- 
 ment, acting by its authority and empowered to carry on 
 the government. Its aim is to please the senate and com- 
 mons. So long as it does that it cannot displease the 
 crown. It is the agent of the people, and when the people 
 are satisfied the crown is satisfied. The crown makes no 
 choice till the cabinet has lost the confidence of the people, 
 it then discovers the people's choice, and selects him 
 as leader — as prime minister. Our constitution does not 
 admit of the supposition that the crown will choose any one 
 not the choice of the people. This is not saying but that 
 the crown has certain abstract rights ; but these may be 
 said to be obsolete and disused in England, and without any 
 practical application in this country. The cabinet council, 
 the premier, in effect, governs the people ; and the people, 
 and the people only, have to say of what party or persons 
 
64 GOVERNMENT IN CANADA. 
 
 the cabinet is to be composed. It is their loss or gain, 
 and is their choice by right. The crown approves with, 
 out interfering, (c) 
 
 When a ministry resigns, the crown stands alone with no 
 adviser known to the constitution. Its first step taken 
 towards the formation of a new ministry is one taken on 
 advice. A member accepting the position of leader of a 
 new government is by the theory of the constitution advis- 
 ing the Governor-General to that step. The new leader 
 advises by accepting. 
 
 Probably the only instance in which a Governor must 
 act on his own independent advice is when he conceives for 
 the moment that the policy of his present advisers is not 
 such as the country would uphold if the elective branch 
 were dissolved and the country left to decide the question. 
 This new ministry would, however, have to shoulder the 
 responsibility of this extraordinary course. 
 
 This, however, maj- not happen, with a series of Gov- 
 ernors, in the space of a century. His ministry for the 
 time being, represent the people ; and it is more reason- 
 able that he should take their advice than that they take 
 his, and th'e responsibility of it, at the same time. They 
 cannot avoid the responsibility ; and they would be ridicu- 
 lous and inconsistent in saying the advice was not theirs, 
 but was the Governor's. He is not responsible to the 
 people, but his ministry is ; and it is generally better for 
 the people to have a Governor who will follow his advisers, 
 than to have one looking for advisers. In the ordinary 
 course of events, there could be no hesitancy in preferring 
 the advice of a responsible ministry to that of an irrespon- 
 sible Governor. 
 
 (c) See Chap. 111. ante on the undoubted power of the Governor-Gen- 
 eral to dismiss one set of cabinet ministers and select another. 
 
THE queen's privy COUNCIL FOR CANADA. 65 
 
 The people decide at the polls who is to rule them for a 
 term of years at a time. Their choice may have been un- 
 fortunate, but there appears no way of recalling it, unless 
 the Governor fancies he can safely dissolve the house on 
 the strength of what he believes the public sentiment to be. 
 This may sometimes be necessary and expedient ; but it is 
 a dangerous experiment, and appears to be contrary to the 
 spirit of the British constitution in modern times. The 
 crown is satisfied at the choice the people have made in 
 the last election — it does not speculate, as to what choice 
 they may make in the next election. 
 
 The fact is, that some set of ministers must take the 
 responsibility of every official act of the Governor-General, 
 either the outgoing or incoming ministers, and this applies 
 to a change of government as well as to all other acts. 
 The moment any one accepts the leadership, he tenders 
 advice as to the choice. 
 
 The privy council is an institution peculiar to the Eng- 
 lish form of government. There is nothing at all similar 
 to it in the United States. The constitution of Canada has 
 provided for its existence in the government of this country 
 by an express section (11.), and the executive is aided and 
 advised by it. It is probable that the 17th. section which 
 creates a parliament for Canada, would of itself have been 
 sufficient to bring with it a privy or cabinet council, as the 
 mode of government peculiar to the imperial parliament. 
 It is the feature of all others that suggests the prin- 
 ciples of the British constitution. Following the declara- 
 tion as to executive power in the early part of the Act, it 
 precedes the provisions as to. a parliament. Those who 
 drafted the Act of Union were determined that the federal 
 side of the constitution was not to absorb the principles of 
 a monarchy and the characteristics of parliamentary gov- 
 ernment. Government under the federal system in the 
 o's.G.o. 6 
 
66 GOVEENMENT IN CANADA. 
 
 American union is not conducted by a committee of both 
 houses, such as is the Queen's privy council ; the executive 
 power is vested in the President of the United States, and 
 he really holds and exercises it. He is not appointed to 
 office as is the Governor of Canada, he does not hold it by 
 •virtue of hereditary right as' does the Queen of England, 
 be is elected by the people for a term of years ; he has large 
 powers of veto, he has no constitutional advisers who pre- 
 vent him from going wrong ; he is entrusted with large 
 powers, and he has to bear the responsibility of using them. 
 On all these points the government of Canada is modeled 
 on other principles and the constitution has put at rest 
 any controversy regarding them. The machinery and 
 procedure of government in Canada is indisputably British ; 
 and the existence of a privy council is one of the best 
 evidences of that fact. 
 
GOVERNMENT IN CANADA. 67 
 
 CHAPTEE VII. 
 
 THE PRIVY COUNCIL. DEPARTMENTAL ADMINISTRATION AT 
 
 OTTAWA. 
 
 Ministers with portfolios — Salaries — Power of investigation — 
 Department of justice, powers, duties, officers — Finance 
 revenue, currency, banks — Agriculture, immigration, 
 manufactures, patent office, copyright, statistics — Secre- 
 tary of State, writs,: commissions, proclamations', N. W. 
 mounted police — Marine and fisheries, pilots, light 
 houses, shipwrecks — Militia and defence, classes of 
 militia f districts, exemptions, pensions. 
 
 Attention will now be directed to the individual duties of 
 ministers of the cabinet in the departmental work of 
 government at Ottawa. The task of administering the 
 public affairs of Canada is divided into fifteen depart- 
 ments, each presided over by a minister of the crown ; and 
 each minister, by command of the Governor-General, makes 
 an annual report to parliament of the affairs confided to 
 his management. These reports and the other information 
 issued by the government form the voluminous Blue Book 
 literature — official information that is eagerly enquired for 
 if not ready, and is very generally disregarded after it is 
 issued. The substance of the ministers' reports is the work 
 of the year in their departments and the manner in which 
 they and their deputies and assistants have carried it out. 
 Parliament and the people see how their work is being 
 done — how the country is being governed, and if thfs is 
 not to their satisfaction the task may be assigned to 
 another set of ministers. 
 
68 GOVERNMENT IN CANADA. 
 
 The following are the departments in the Dominion 
 Government : 
 
 1. The department of justice and attorney-general. 
 
 2. The department of finance and receiver-general. 
 
 3. The department of agriculture. 
 
 4. The department of the secretary of state for Canada. 
 
 5. The department of militia and defence. 
 
 6. The department of customs. 
 
 7. The department of inland revenue. 
 
 8. The department of the interior. 
 
 9. The department of public works. 
 
 10. The department of railways and canals. 
 
 11. The post office department. 
 
 12. The department of marine and fisheries. 
 
 13. The department of public printing and stationery, (a) 
 
 14. The department of Indian affairs. 
 
 15. The department of trade and commerce. 
 
 The president of the council sometimes has no depart- 
 ment in the public service ; he presides over the meetings 
 of the privy council. 
 
 Each minister is paid $7,000 per annum as compensa- 
 tion for his labor. The ministers in the different depart- 
 ments at Ottawa are assisted by deputies and assistan-ts 
 who form the civil service of Canada. 
 
 Any minister presiding over any department may appoint 
 one or more commissioners to investigate and report upon 
 the state and management of the business or any part of 
 it in his department, or the official conduct of any person 
 in his service. Very full powers are given to these com- 
 missioners who may summon any person before them to give 
 evidence on oath or take evidence by commission for the 
 purposes of the investigation. 
 
 (a) This department is presided over by the secretary of state, and the 
 Indian affairs by the minister of the interior. 
 
DEPARTMENTAL ADMINISTBATION AT OTTAWA. 69 
 
 1. DEPARTMENT OF JUSTICE. 
 
 This department of the civil service is presided over by 
 the minister of justice for Canada, who is appointed by the 
 Governor-General, by commission under the great seal, 
 and who holds office during pleasure— that is, so long as 
 the government, of which he is a member, retains office. 
 The minister of justice is by virtue of his office attorney- 
 general of Canada, and in this regard he is entrusted with 
 the same powers and charged with the same duties, which 
 belong to the office of attorney-general for England, by law, 
 or usage, so far as the same powers and duties are appli- 
 cable to Canada ; and also with such powers and duties as 
 belonged to that office, prior to 1867, in the provinces, in 
 order that the provisions of the Confederation Act may be 
 carried out by the government of the Dominion. 
 
 He is the official legal adviser of the Governor-General, 
 and the legal member of the privy council. He must see 
 that the administration of public affairs is in accordance 
 with law. He has the superintendence of all matters con- 
 nected with the administration of justice in Canada, that do 
 not fall within the jurisdiction of the provinces. He must 
 advise upon the legislative Acts and proceedings of the 
 provinces, and must advise the crown generally upon all 
 matters of law referred to him. He advises the heads of 
 the other departments upon all matters of law connected 
 with their departments. He settles and approves of all 
 instruments issued under the great seal of Canada, has the 
 conduct and regulation of all litigation for or against the 
 crown, or any public department, in matters within the 
 authority and jurisdiction of the Dominion ; and he may 
 have to advise on Qther matters referred to him by the 
 Governor in council. He has also the superintendence of 
 penitentiaries and the prison system of the Dominion, and 
 
70 GOVERNMENT IN CANADA. 
 
 returns are made to him every year from penitentiaries, 
 gaols, lunatic asylums and reformatories. 
 
 The Governor appoints a deputy of the minister of jus- 
 tice, who is charged with the performance of these depart- 
 mental duties, under the minister. He has the control and 
 management of the officers, clerks and servants of the 
 department, who are appointed by the Governor, and he 
 may have other powers and duties assigned him by the 
 Governor in council. He is now assisted by the solicitor- 
 general of Canada. 
 
 The minister of justice is a member of the treasury board. 
 
 The attorney-general of the province, and not the attor- 
 ney-general of the Dominion, is the proper party to file an 
 information when the complaint is not of an injury to 
 property vested in the crown as representing the govern- 
 ment of the Dominion, but of a violation of the rights of the 
 public of the province, even though such rights are created 
 by an Act of the parliament of the Dominion, {b) 
 
 2. THE DEPAETMENT OF FINANCE. 
 
 This department of the civil service is presided over by 
 the minister of finance and receiver-general, appointed and 
 holding office like the minister of justice and the other 
 ministers of the crown. 
 
 This department has the supervision, control and direc- 
 tion of all matters relating to the financial affairs, public 
 accounts, revenue and expenditure, of the Dominion, except- 
 ing such of these matters as may be assigned to other 
 departments, as customs, etc. 
 
 The Governor-General appoints a deputy minister of 
 finance and receiver-general, who is deputy head of the 
 department and secretary of the treasury board. For- 
 
 (6) Att'y-Gen. v. The Niagara Falls International Bridge Co'y, 20 Gr. 34. 
 
DEPARTMENTAL ADMINISTEATION AT OTTAWA. 71 
 
 merly the auditor-general and an officer called the deputy 
 inspector-general were officers of this department. A board 
 called the treasury board, consisting of the minister of 
 finance and receiver-general, the minister of justice, the 
 minister of customs, the minister of inland revenue, the 
 secretary of state of Canada, and one other minister, is a 
 committee of the privy council on all matters mentioned as 
 belonging to this department — finance, revenue and ex- 
 penditure or public accounts; and the board may call the 
 attention of the council to any of these matters, or the 
 council may refer any of them to the board. The board 
 has power to require from any public department, board or 
 officer, or other person or party bound by law to furnish the 
 same to the government, any account, return, statement, 
 document, or information which the board may think 
 necessary for the due performance of its duties. By the 
 word revenue in this department is meant revenue of the 
 Dominion of Canada and all branches thereof, and all public 
 moneys, whether arising from duties of customs or other 
 duties, or from the post office, or from tolls on canals, rail- 
 ways or other public works, or from penalties or forfeitures, 
 or rents or dues, or other source whatever, and whether the 
 money belongs to or is collected by the Dominion in trust 
 for any province or for Great Britain. The Governor in 
 , council determines what officers are necessary in the col- 
 lection of the revenue, divides up Canada into posts 
 and districts for revenue purposes, and makes all necessary 
 regulations for payment of and accounting for the revenue. 
 No money is paid out of the public chest unless by cheque 
 on some bank upon the warrant of the Governor in council, 
 and signed by the minister of finance and receiver-general 
 and countersigned by his deputy. 
 
 For the more complete examination of the public accounts, 
 and for the reporting thereon, the Governor- General may, 
 
72 GOVERNMENT IN CANADA. 
 
 under the great seal, appoint an auditor-general of Canada, 
 who holds office till removed by the Governor-General on 
 the address of the senate and commons. He issues all 
 cheques under the parliamentary appropriation, and unless 
 in these cases no cheque of the finance minister shall issue 
 unless upon his certificate. He certifies and reports as 
 to the public accounts presented to parliament by the 
 minister. 
 
 This department has to deal with banks issuing dominion 
 notes in place of their own, and also with the issue of 
 dominion notes, and with the currency generally. 
 
 All public moneys, from whatever source of revenue 
 derived, shall be paid to the credit of the account of the 
 minister of finance and receiver-general through such 
 officers, banks or persons, and in such manner as the said 
 minister from time to time, directs and appoints. 
 
 The denominations of money in the currency of Canada 
 are dollars, cents and mills, — the cent being one hundredth 
 part of a dollar, and the mill one tenth part of a cent. 
 
 The currency of Canada is such, that the British 
 sovereign of the weight and fineness now prescribed by the 
 laws of the United Kingdom, is equal to and passes current 
 for four dollars eighty-six cents and two-thirds of a cent of 
 the currency of Canada, and the half sovereign of propor- 
 tionate weight and like fineness for one-half the said sum. 
 All public accounts throughout Canada must be kept 
 in such currency ; and in any statement as to money or 
 money value, in any indictment or legal proceeding, the 
 same shall be stated in such currency : and in all private 
 accounts and agreements rendered or entered into on or 
 subsequent to the first day of July, one thousand eight hun- 
 dred and seventy-one, all sums mentioned shall be under- 
 
DEPARTMENTAL ADMINISTRATION AT OTTAWA. 73 
 
 stood to be in such currency, unless some other is clearly 
 expressed, or must, from the circumstances of the case, 
 have been intended by the parties. 
 
 The deputy of the minister shall keep the accounts with 
 the financial agents of the Dominion in England and with 
 the banks paying or receiving public money, and accounts 
 of money paid for interest on Canadian stock, debentures 
 or other Canadian securities. He shall countersign all 
 debentures and keep a debenture book, an interest book 
 respecting them, and an appropriation book, and shall 
 keep the public accounts of the Dominion, and have control 
 and direction of its financial affairs, public accounts, 
 revenue and expenditure under the minister. He prepares 
 and submits to the ministers the public accounts to be laid 
 before parliament, (c) 
 
 The Governor in council may authorize the issue of 
 Dominion notes to a specified amount, and such Dominion 
 notes may be of such denominational values and in such 
 form, and signed by such persons and in such manner, by 
 lithograph, printing or otherwise as he from time to time 
 directs, and such notes shall be redeemable in specie on 
 presentation at branch offices established in certain cities 
 in Canada. 
 
 The expression " specie " means coin current by law in 
 Canada, at the rates and subject to the provisions of the 
 law in that behalf, or bullion of equal value according to 
 its weight and fineness. 
 
 The amount of Dominion notes issued and outstanding 
 at any time may, by order in council, founded on a report 
 
 (c) The manner of dealing with this most important part of the public 
 affairs in the finance department is too complicated to give even a 
 general idea of its workings within a small space. The reader must be 
 referred to Public Accounts Audit Act, 1878, and its amendments to see 
 the former workings of this department and the duties of the board of 
 audit, now superseded by later provisions. See also the Act of 1887. 
 
74 GOVEENMENT IN CANADA. 
 
 of the treasury board, be increased to, but shall not exceed 
 twenty million dollars, by amounts not exceeding one 
 milHon dollars at one time, and not exceeding four million 
 dollars in any one year : 
 
 3. THE DEPARTMENT OF AGEICULTURE. (i) 
 
 This department is presided over by the minister of 
 agriculture, who, with a deputy minister, has charge of the 
 management and direction of the department. 
 
 The duties and powers of the minister of agriculture, 
 extend to the execution of the laws enacted by the parlia- 
 ment of Canada, and of the orders of the Governor in 
 council relating to the following subjects, which are con- 
 trolled and directed by the department. 
 
 1. Agriculture. 
 
 2. Immigration and emigration. 
 
 3. Public health and quarantine. 
 
 4. The marine and immigrant hospital at Quebec. 
 
 5. Arts and manufactures. 
 
 6.. The census, statistics and the registration of statis- 
 tics. 
 
 7. Patents of invention. 
 
 8. Copyright. 
 
 9. Industrial designs and trade marks. 
 
 10. Experimental farm stations. 
 
 Any of these powers and duties may be assigned to other 
 members of the privy council by the Governor in council, 
 and the same power may also assign additional duties to 
 the minister of agriculture than those above enumerated. 
 The minister is bound to make his annual report to both 
 houses of parliament within twenty-one days after the 
 commencement of the session. 
 
 (d) 'See Act of 1887 D. chap. 12. 
 
DEPARTMENTAL ADMINISTEATION AT OTTAWA. 75 
 
 Each of the provinces has power to legislate in relation 
 to agriculture within its own limits, and also in relation 
 to immigration into such province. The Dominion has 
 power to legislate, in relation to these same subjects, in all 
 or any of the provinces ; and the provincial law takes 
 effect so long and so far only as it is not repugnant to any 
 Act of the parliament of Canada. These two subjects of 
 agriculture and immigration into the provinces are the 
 only subjects in which Canada and the provinces have con- 
 current jurisdiction. Canada maintains immigration offices 
 in Great Britain and in Canada. Arrangements are 
 entered into by which the dominion and provincial govern- 
 ments assist each other in this particular and conferences 
 of the delegates of both governments are convened from 
 time to time in the office of this department. Minute 
 statutory regulations are made in regard to immigrants, 
 quarantine, &c. ; and the Governor in council is empowered 
 to make regulations to carry out the quarantine Act or pro- 
 hibit the landing of vicious immigrants, etc. (e) 
 
 The minister of agriculture keeps a register of copyrights, 
 in which proprietors of literary, scientific and artistic works 
 or compositions may register the same under the copyright 
 Act of 1875. The minister has power to make rules and 
 regulations and prescribe forms for this purpose. The term 
 of copyright is for twenty-eight years, and may, under 
 certain circumstances, be renewed for fourteen years after 
 the expiration of that time. Two copies of the work are 
 deposited in this office, one of which is forwarded to the 
 library of parliament. Notice that a copyright has been ob- 
 tained must appear in the work itself in a prescribed form. 
 The rules and regulations are laid down by an order of the 
 privy council dated 7th December, 1875. (/) The regulations 
 
 (e) See duties of the High Commissioner for Canada, infra. 
 (/) See Smiles v Bedford, 1 App. Ont. 436. 
 
76 GOVERNMENT IN CANADA. 
 
 as to trade-marks and designs were laid down by statute in 
 1879. Patents of invention and copyright may now be 
 transferred to the secretary of state. 
 
 The minister of agriculture receives returns of crimi- 
 nal statistics every year up to the 30th September from 
 the proper officers of the courts administering criminal 
 justice, and from wardens and sheriffs and justices of the 
 peace; and records of the same are kept in his department. 
 He receives also such returns as to the exercise of the pre- 
 rogative of mercy as are furnished by the' secretary of state. 
 These statistics and returns are abstracted and printed 
 yearly. 
 
 The census shall be taken in 1891, and at the beginning 
 of every tenth year thereafter. The details of the census 
 shall be directed by the Governor in council ; and this de- 
 partment shall prepare all forms and instructions necessary 
 for that purpose, and examine into the returns and records, 
 and lay before parliament such abstracts and tabular re- 
 turns shewing the results of the census as accurately and 
 fully as possible. 
 
 The minister of agriculture is, under the approval of the 
 Governor in council, from time to time to collect, abstract, 
 tabulate and publish the vital, agricultural, commercial, 
 criminal and other statistics of the country ; and he has all 
 the necessary powers to provide himeelf with all the proper 
 officers and assistants for that purpose. Eegulations as to 
 contagious diseases in cattle issue from this department 
 by order of the Governor in council. See Act of 1887, D. 
 cap. 12. 
 
 4. THE DEPARTMENT OF THE SECRETARY OF STATE OF CANADA. 
 
 This department is presided over by the secretary of 
 state of Canada and managed under his direction. The 
 
DEPARTMENTAL ADMINISTRATION AT OTTAWA. 77 
 
 Governor in council may also appoint an "under secretary 
 of state " and other necessary ofiScers. 
 
 The duty of this minister is to have charge of the state 
 correspondence, to keep all state records and papers not 
 specially transferred to other departments, and to perform 
 such other duties as may be assigned him. He is the 
 registrar-general of Canada, and, as such, registers all in- 
 struments of summons, proclamations, commissions, letters 
 patent, writ and other instruments issued under the great 
 seal and all bonds, warrants of extradition, warrants for 
 removal of prisoners, leases, releases, deeds of sale, and all 
 other instruments requiring registration. The deputy 
 registrai"-general of Canada, may sign and certify the 
 registration of all instruments and documents required to 
 be registered, and may issue certified or authenticated 
 copies of these or any records in the office which may be So 
 required. 
 
 The department of the interior now takes charge of 'In- 
 dian affairs, of crown lands being the property of Canada, 
 of ordnance and admiralty lands, and other public lands 
 formerly entrusted to this department. The charge of the 
 North- West mounted police was also transferred to that 
 department, but is now in the Indian department. 
 
 The secretary of state reports annually to parliament 
 within ten days after its commencement. 
 
 The secretary of state has charge of the state correspon- 
 dence with the provinces, as there is now no secretary of 
 state for the provinces. 
 
 The Act of 1887, cap. 12. D. must be read in connection 
 with this department, {g} 
 
 (g) See department of public printing and stationery. 
 
78 GOVERNMENT IN CANADA. 
 
 5. THE DBPAETMENT OF MARINE AND FISHERIES. 
 
 The minister of marine and fisheries has the manage- 
 ment and direction of this public department under his 
 control. His deputy directs and oversees the other officers 
 and servants of the department, and has general control of 
 its business in the absence of the minister. 
 
 The following are the matters within the control, of this 
 department, under any existing laws in reference thereto: (/i) 
 
 1. Sea, coast and inland fisheries, and the management, 
 regulation and protection thereof, and anything relating 
 thereto ; also the administration of any laws relating to 
 pilots and pilotage, and decayed pilots' funds ; 
 
 2. Beacons, buoys, lights, light-houses, and their main- 
 tenance ; 
 
 3. Harbors, ports, piers and wharves, steamers and ves- 
 sels belonging to the Government of Canada, except gun- 
 boats or other vessels of war ; 
 
 4. Harbor commissioners and harbor masters ; 
 
 5. Classification of vessels, examination of and granting 
 of certificates to masters and mates and others in the 
 merchant service ; 
 
 6. Shipping masters and shipping officers ; 
 
 7. Inspection of steamboats and boards of steamboat 
 inspection ; 
 
 8. Enquiries into causes of shipwrecks ; 
 
 9. Establishment, regulation and maintenance of marine 
 and seamen hospitals and care of distressed seamen, and 
 
 (h) See Queen v. Robertson, 6, S. C. E. 52. 
 
DEPARTMENTAL ADMINISTRATION AT OTTAWA. ' 79 
 
 generally such matters as refer to the marine and navi- 
 gation of Canada. 
 
 Orders in council regulate the close seasons for fish in 
 the different provinces, and are made on the recommend- 
 ation of the minister of this department. 
 
 The Governor in council may at any time, by proclama- 
 tion, transfer from this department to the department of 
 public works the construction and repair of light houses. 
 
 1. All harbors, wharves, piers and breakwaters con- 
 structed or completed" at the expense of Canada, or other- 
 wise the property of Canada, except only such as are on or 
 connected with canals shall be under the control and 
 management of the minister of marine and fisheries re- 
 specting the use, maintenance and ordinary repairs thereof, 
 the making and enforcing of regulations concerning such 
 use, maintenance and ordinary repairs, and the collection 
 of tolls and dues for such use ; 
 
 2. The construction and repairs, and the works connected 
 therewith, other than maintenance and ordinary repairs, 
 shall be under the control and direction of the minister of 
 public works. 
 
 6. DEPARTMENT OF MILITIA AND DEFENCE. 
 
 The minister of militia and defence is charged with and 
 responsible for the administration of militia affairs, includ- 
 ing p11 matters involving expenditure, and of the fortifica- 
 tions, gunboats, ordnance, ammunition, arms, armories, 
 stores, munitions, and habiliments of war belonging to 
 Canada. He has also the initative in all militia affairs 
 involving the expenditure of money. The Governor in 
 council may appoint a deputy to this minister, and such 
 
80 GOVERNMENT IN CANADA. 
 
 other ofiScers as may be necessary, and prescribe their 
 duties, (i) 
 
 The Command-in-chief of the land and naval militia, and 
 of all naval and military forces of and in Canada, is vested 
 in the Queen, and shall be exercised and administered by 
 Her Majesty personally, or by the Governor-General as her 
 representative. 
 
 The militia consists of all the male inhabitants over 
 eighteen years of age and under sixty, not exempted or dis- 
 qualified by law, and being British subjects by birth or 
 naturalization. There are four classes of militia as follows : 
 
 1. 18 and over 18, and under 30 years, who are un- 
 married or widowers without children. These will be called 
 upon to serve first. 
 
 2. Those of 30 and upwards, but under 45, unmarried, 
 or widowers, without children. These will be called after 
 the first class. 
 
 3. Those of 18 and upwards, but under 45, who are 
 married, or widowers with children. These are next liable 
 to be called. 
 
 4. Those of 45 and upwards, but under 60. These are 
 not called until the others are serving. 
 
 Her Majesty may, however, in the case of a general ris- 
 ing, or rebellion, require all the male inhabitants of the 
 Dominion, capable of bearing arms, to serve in the militia. 
 
 The militia shall be divided into active and reserve 
 militia — land force; and active and reserve militia — 
 marine force : 
 
 (t) See Holmes v. Temple, Queb, L. R. 351 
 
DEPABTMENTAL ADMINISTBATION AT OTTAWA. 81 
 
 The active militia — land force — shall be composed of : — 
 
 (a) Corps raised by voluntary enlistment ; 
 (6) Corps raised by ballot ; 
 
 (c) Corps composed of men raised by voluntary enlist- 
 ment and men balloted to serve; 
 
 The active militia — marine force — to be raised similarly, 
 shall be composed of seamen, sailors and persons 
 ■whose usual occupation is upon any steam or sailing 
 craft, navigating the waters of Canada : 
 
 The reserve militia — land and marine — shall consist of 
 the whole of the men who are not serving in the active 
 militia for the time being. 46 V., c. 11, s. 6. 
 
 Canada is divided into twelve military districts : 
 
 Ontario 4 ; Quebec 3 ; Nova Scotia, New Brunswick, 
 "Manitoba, British Columbia, Prince Edward Island, 
 one each. 
 
 Schools of instruction are established in garrison t^wns 
 in Canada; and the staff of instructors, under the superin- 
 tendence of a military officer called a commandant, is 
 appointed by the Governor in council. The regulations for 
 admission, etc., are laid down by order in council.' 
 
 The department of militia and defence pays those on the 
 pension list, and enquires who are entitled to pensions. 
 
 EXEMPTIONS. 
 
 The following persons only, between the ages of eighteen 
 and sixty years, shall be exempt from enrolment and from 
 actual services at any time : — 
 
 The judges of all the courts of justice in the Dominion of 
 Canada ; 
 
 o's.G.c. 7 
 
82 GOVERNMENT IN CANADA. 
 
 The clergy and ministers of all religious denominations ; 
 
 The professors in every college and university and all 
 teachers in religious orders ; 
 
 Officers and persons regularly employed in the collection 
 or management of the revenue, or in accounting for the 
 same; 
 
 The warden and all officers and servants employed 
 permanently in the penitentiaries, and the officers, 
 keepers and guards of all public lunatic asylums ; 
 
 Persons disabled by bodily infirmity ; 
 
 The only son of a widow, being her only support ; 
 
 2. The following, though enrolled, shall be exempt from 
 actual service at any time except in case of war, invasion 
 or insurrection ; 
 
 Half-pay and retired officers of Her Majesty's arm-y or 
 navy; 
 
 Seafaring men and sailors actually employed in their 
 calling ; 
 
 Pilots and apprentice pilots during the season of naviga- 
 tion; 
 
 Masters of public and common schools actually engaged 
 in teaching ; 
 
 3. Any person bearing a. certificate from the society of ■ 
 Quakers, Mennonites or Tunkers, or any inhabitant of 
 Canada, of any religious denomination, otherwise subject 
 to military duty, who, from the doctrines of his religion, 
 is averse to bearing arms and refuses personal military 
 service, shall be exempt from such service when balloted in 
 time of peace or war, upon such conditions and under such 
 regulations as the Governor in council may from time to 
 time, prescribe. 
 
GOVERNMENT IN CANADA. 83 
 
 CHAPTER VIII. 
 
 THE PEIVY COUNCIL ADMINISTBATIVE GOVERNMENT. 
 
 (Continued.) 
 
 The department of customs — Inland revenue, excise, weights 
 and measures, stamps, tolls— ^Interior, Indian affairs, 
 crown lands, geological survey. If. W. mounted police — 
 Post office, powers and duties, postal union, money orders, 
 letters — Public works, officers, works — Railways and 
 canals — Public printing and stationery, Quren's printer, 
 statutes, Canada Gazette — Indian department — Trade 
 and commerce — The high commissioner for Canada. 
 
 7. THE DEPARTMENT OP CUSTOMS, (a) 
 
 The department of customs is presided over by the min- 
 ister of customs appointed under the great seal and holding 
 office during pleasure. The Governor-General appoints a 
 commissioner of customs and an assistant commissioner 
 of customs. These have certain powers and perform cer- 
 tain duties assigned them by the Governor-General or by 
 the minister of customs. 
 
 This department has control and managenjent : 
 
 1. Of the collection of the duties of customs and of mat- 
 ters incident thereto, and of the officers and servants em- 
 ployed in that service. 
 
 (a) See Act of 1887, chap 11 D. by which the departments of Customs 
 and Inland Eevenue are plaopd under the control of the Minister of 
 Trade and •Commerce, and the Minister of Finance. The Act is not yet 
 in force. 
 
84 GOVERNMENT IN CANADA. 
 
 The Governor- General may appoint a board of examiners 
 for all employees in this department, and these may classify 
 the persons employed and grant certificates accordingly. 
 
 The minister of customs reports annually to parliament 
 on the transactions and affairs of his department within 15 
 days after parliament opens. 
 
 8. THE DEPARTMENT OP INLAND REVENUE. 
 
 This department is presided over by the minister of in- 
 land revenue, He is assisted by a commissioner of inland 
 revenue who is deputy of the minister, and by an assistant 
 commissioner, who is the inspector of inland revenue, in 
 performing such duties as are assigned to them by the 
 Governor- General or by the minister in charge. 
 
 This department has the control and management : — ■ 
 
 1. Of the collection of all duties of excise ; 
 
 2. Of the collection of stamp duties and the preparation 
 
 and issue of stamps and stamped paper, except postage 
 stamps ; 
 
 3. Of internal taxes ; 
 
 4. Of standard weights and measures ; 
 
 5. Of the administration of the laws affecting the culling 
 
 and measurement of timber, masts, spars, deals, 
 staves and other articles of a like nature, and the 
 collection of slidage and boomage dues ; 
 
 6. Of the collection of bridge and ferry tolls and rents ; 
 
 7. Of the collection of tolls on the public canals, and of 
 
 matters incident thereto, and of the officers and persons 
 employed in that service ; 
 
ADMINISTRATIVE GOVERNMENT. 85 
 
 Subject always to the provisions of the Acts relating to 
 the said subjects and matters connected therewith. 
 
 The regulations as to balances and weighing machines 
 are laid down by an order of the privy council dated 10th 
 July, 1877. Under a previous order Canada was divided 
 into ten districts, under the Act respecting weights and 
 measures ; four for Ontario ; two for Quebec ; and one for 
 each of the other provinces, except Prince Edward Island. 
 In this office regulations are made for the inspection, verifi- 
 cation and testing of gas, and for analyzing food, under the 
 Acts to prevent the adulteration of food. The weights and 
 measures Act of 1879 provides for uniformity of weights and 
 measures, and prescribes standards therefor as deposited in 
 this department. 
 
 The Governor-General may appoint officers and other 
 pei-sons to carry out all Acts relating to the department of 
 inland revenue, or any orders in council, or regulations 
 made thereunder. A board of examiners may be consti- 
 tuted in this department, as in that of customs. 
 
 The minister reports annually to parliament, within fif- 
 teen days after the house opens. 
 
 9. THE DEPARTMENT OF THE INTERIOR. 
 
 This department of the civil service is presided over by 
 the minister of the interior. He has the control and 
 management of the affairs of the North-West Territories- 
 He is the superintendent general of Indian affairs and has 
 the control and management of their lands and property in 
 Canada, (b) He has alsa the control and management of 
 all crown lands, being the property of the Dominion, in- 
 cluding those known as ordnance and admiralty lands, and 
 
 (b) See Church v. Fenton, 28 TJ. C. C. P. 384. 
 
86 GOYERNMENT IN CANADA. 
 
 all other public lands not specially under the control of the 
 public works department, the department of railways and 
 canals, or of that of militia and defence (and excepting also 
 marine hospitals and light houses, and land connected 
 therewith, and St. Paul's, Sable and Portage Islands). 
 He is substituted for the former commissioner of- crown 
 lands as regards ordnance and admiralty lands transfer- 
 red to the late province of Canada and lying in Ontario 
 and Quebec. He takes the place of the secretary of state 
 in regard to Dominion lands, and has all the powers, 
 attributes, functions, restrictions and duties necessary to 
 the enforcement of the provisions of the Dominion Lands 
 Act, E. S. C. cap. 54. 
 
 There is a deputy minister in this department who hag 
 charge, under the minister, of the performance of the 
 departmental duties, and the control and management of 
 the officers, agents, clerks and servants in the department. 
 
 The minister of the interior has the control and manage- 
 ment of the geological survey of Canada, and there is a 
 branch of the department of the interior known as the geo- 
 logical survey branch, which is under the control of the 
 minister and takes charge of and conducts the geological 
 survey of Canada. 
 
 The objects and purposes of the survey and museum are 
 to elucidate the geology and mineralogy of Canada and to 
 make a full and scientific examination of the various strata, 
 soils, ores, coals, oils and mineral waters, and of its recent 
 fauna and flora, so as to afford to the mining, metallurgical 
 and other interests of the country, correct and full infor- 
 mation as to its character and resources. 
 
 10. THE DEPARTMENT OF INDIAN AFFAIRS. 
 
 This department has the management, charge and direc- 
 tion of Indian affairs. It is presided over by the superin- 
 
ADMIMSTEATIVE GOVERNMENT. 87 
 
 tendent-general of Indian affairs, and the minister of the 
 interior is at present appointed to that ofSce. The 
 Governor-General in council appoints a deputy superinten- 
 dent-general and such other officers, clerks and servants as 
 are requisite for the proper conduct and management of 
 the department. 
 
 An Indian commissioner may be appointed for Manitoba, 
 Keewatin, and the North- West Territories, or for one or two 
 of these, and an Indian superintendent for British Colum- 
 bia who may have certain duties assigned them. 
 
 The Indian Act, E. S- C. cap. 43, amends and consoli- 
 dates the law relating to Indians. It defines who they are, 
 what lands they hold and are entitled to, the protection the 
 law affords them, and the disabilities they labor under. 
 The Governor in council may, however, exempt Indians 
 from any portion of the operations of the Act. The 
 Chancellor of Ontario has recently given an elaborate judg- 
 ment as to the position occupied by the Dominion and 
 Ontario governments on Indian lands. The territorial 
 jurisdiction of the Dominion is held to extend only to lands 
 reserved for Indians. The same judgment contains a 
 briefly sketched history of the public lands of Ontario from 
 the time of their acquisition by the crown till they became 
 subject to provincial legislative control, (c) 
 
 The law relating to the administration and management 
 of the Dominion lands is amended and consolidated by an 
 Act passed in 1879 (cap. 31); and these are under the con- 
 trol of the minister of the interior in a branch of this 
 department called "the Dominion lands office.'' This 
 Act provides for the survey and disposal of these lands, 
 
 (c) Eegina v. The St. Catharines Milling and Lumber Coy., 10. Ont. 
 Keports 196, affirmed in 13 Ontario appeals, and now entered on the 
 privy council appeals. 
 
88 GOVERNMENT IN CANADA. 
 
 makes regulations as to homesteads, mining and coal fields, 
 timber lands, and licenses thereon, and for the issue of 
 patents to these lands. 
 
 The minister of this department has charge of the North- 
 West mounted police. 
 
 11. POST OFFICE DEPAETMENT. 
 
 There is at the seat of Government, with the other public 
 departmentSi a post office department, for the superinten- 
 dence and management of the postal service of Canada, 
 under the direction of a postmaster-general. 
 
 He is appointed, like the other ministers, by commission 
 under the great seal, and holds office, as they do, during 
 pleasure. 
 
 He has power to appoint postmasters having permanent 
 salaries in towns and cities. 
 
 He may also subject to the Acts in force: [d) 
 
 1. Establish and close post offices, and post routes. 
 
 2. Appoint and suspend postmasters, and other officers and 
 
 servants. 
 
 3. Make mail contracts or other business as to the post 
 
 office, regulate what is mailable matter as to size and 
 weight, prohibit dangerous or improper or other articles 
 being sent, establish rates, unless others are laid down 
 by parliament therefor in Canada, and arrange for 
 these outside Canada. 
 
 4. Prepare stamps, stamped envelopes, post cards, wrap- 
 
 pers, etc., and provide for the sale of the same, 
 establish a money order system, and make necessary 
 regulations as to registration. 
 
 (d) This is an abridgement of the eighteen sub-sections in the Acts. 
 
ADMINISTEATIVE GOVERNMENT. 89 
 
 6. Establish street, letter, or pillar boxes; and generally 
 make such regulations as he deems necessary for the 
 due and effective working of the department. 
 
 A deputy postmaster-general is appointed by the Gov- 
 ernor in council, who has control of the department, under 
 the minister. 
 
 The rate of postage on letters, newspapers and periodical 
 publications, and what are called book and parcel post, are 
 laid down by statute, and the postmaster-general has no 
 power over these. 
 
 The " General Post Union, " formed under a treaty 
 taking effect on the 1st of July, 1875, regulates the under- 
 standing had between Great Britain, Germany, Austro- 
 Hungary, Belgium, Denmark, Egypt, Spain, the United 
 States of America, Prance, Greece, Italy, Luxembourg, 
 Norway, the Netherlands, Portugal, Eoumania, Eussia, 
 Servia, Sweden, Switzerland and Turkey. 
 
 Postal arrangements and a money order system are ar- 
 ranged between Canada and the United States. 
 
 The postmaster-general has the sole and exclusive privi- 
 lege of sending and delivering letters in Canada ; and any 
 person who infringes upon this privilege, except as provided, 
 is liable to a penalty of at least $20 for every letter de- 
 livered or found in hisN possession. The exceptions pro- 
 vided are letters sent by a private friend, or by a messenger 
 sent on purpose, on private affairs of the sender, or receiver, 
 or sent by a private vessel to a place out of Canada, or 
 letters brought into Canada, and immediately posted ; or 
 letters sent with goods, but without pay or return and 
 commissions, or other papers, issuing out of a court of 
 justice, (e) 
 
 (e) From the time any letter, packet, chattel, money or thing is de- 
 posited in the post office for the purpose of being sent by post, it shall 
 
90 GOVERNMENT IN CANADA. 
 
 The postmaster-general reports very fully to parliament 
 on the finances, receipts and expenditure of his department; 
 what has been paid for mail transport, salaries of persons 
 employed, incidental expenses, dead and lost letters, the 
 transactions of the money order offices, and losses and costs 
 under this system, and the transactions of the post office 
 savings bank. 
 
 This report is presented to the house within ten days 
 after the opening of the session. 
 
 DEPARTMENT OF PUBLIC WORKS. 
 
 Prior to the 20th of May, 1879, the department of public 
 works was presided over by one minister appointed in the 
 usual way. On that day, by proclamation, it was divided 
 into two departments, to be presided over and managed by 
 two members of the administration, who are designated as 
 the minister of railways and canals, and the minister of 
 public works. 
 
 12. DEPARTMENT OF RAILWAYS AND CANALS. 
 
 The minister in charge of this department has the man- 
 agement, charge and direction of all railways, and works 
 and property appertaining or incident thereto, which im- 
 mediately before the proclamation mentioned were under 
 the management and direction of the department of public 
 works, to the same extent and under the same provisions 
 as they were formerly managed. Each of the two ministers 
 
 cease to be the property of the sender, and shall be the property of the 
 person to whom it is addressed or the legal representatives of such person : 
 and the postmaster-general shall not be iiable to any person for the loss 
 of any letter, packet or other thing sent by post ; no letter, packet or 
 other mailable matter shall, whilst in the post office or in the custody of 
 any person employed in tlie Canada post office, be liable to demand, 
 seizure or detention, under legal process against the sender thereof, or 
 against the person or legal representatives of the person to whom it is 
 addressed. 38 V., cap. 7, s. 37. 
 
ADMINISTRATIVE GOVERNMENT. 91 
 
 succeeds to all the powers and duties before vested in the 
 minister of public works, so far as respects the works under 
 their respective charges. In case any doubts arise as to 
 which of them any particular branch of the public works 
 belongs, it shall be decided by order of the Governor in 
 council; and he may make order assigning any of the 
 officers and employees of the former department to either 
 of the newly constituted departments, or direct them to act 
 in both. 
 
 The Governor in council may appoint as chief officer of 
 the department a deputy minister of railways and canals, 
 a secretary, one or more chief engineers, a chief architect, 
 and other necessary officers. 
 
 The deputy has charge of the department under the min- 
 ister, directs the other officers, has general control of 
 the business of the department, and may be assigned other 
 duties by the Governor in council. 
 
 The secretary keeps account of the moneys appropriated 
 for and expended on each public work and building under 
 the management of the department, keeps accounts with 
 contractors, looks after contracts to see that they are cor- . 
 rectly drawn up and executed, prepares certificates, 
 reports, etc. 
 
 The chief engineer and architects prepare maps, plans 
 and estimates, and report to the minister thereon. 
 
 13. THE DEPAETMENT OF PUBLIC WORKS. 
 
 The minister of public works presides over this depart- 
 ment and has charge of all public works of the Dominion, 
 except the railways and canals, assigned to the minister of 
 railways and canals under the Act of 1879. 
 
92 GOVERNMENT IN CANADA. 
 
 He has control of : 
 
 1. Works for the improvement of the navigation of any 
 
 water, such as locks, dams, hydraulic works, harbour 
 piers, etc., and works for facilitating the transmission 
 of timber, such as slides, dams, piers, booms, and other 
 works, except those appertaining or belonging to canals, 
 or being incident thereto. 
 
 2. Eoads and bridges, public buildings,- vessels, dredges, 
 
 scows, tools, implements and machinery, for the im- 
 provement of navigation, .not belonging to canals. 
 
 3. Telegraph lines. 
 
 4. All other property (except that managed in the depart- 
 
 ment of railways and canals) heretofore acquired, con- 
 structed, repaired, maintained, or improved at the 
 expense of the late province of Canada, or of New 
 Brunswick and Nova Scotia, or hereafter to be acquired 
 by Canada. 
 
 5. Such portions of ordnance property transferred to the 
 
 late provincial government of Canada by the imperial 
 government, and afterwards placed under this depart- 
 ment. 
 
 But any public works or property which were or will be 
 transferred to any of the provinces mentioned, or leased 
 or sold to municipalities, corporations, or other parties, 
 are not within this department ; nor are any public works, 
 roads, bridges, harbours, or property which were abandoned 
 by proclamation to the control of the municipal or local 
 authorities. 
 
 The Governor-General may, by proclamation, declare 
 any other works, roads, bridges, harbours, slides, light- 
 houses, or buildings purchased or constructed at the public 
 
ADMINISTRATIVE GOVERNMENT. 93 
 
 expense, and not assigned to the provinces, to be under the 
 management of this department. 
 
 All land, streams, water courses, and property acquired 
 for the use of the public works, are vested in Her Majesty ; 
 and the minister may take possession and acquire lands 
 necessary for the public service in her name. The price 
 and other conditions are regulated under arbitration, from 
 which, in cases over $500, an appeal lies to the Exchequer 
 Court of Canada. 
 
 Any work for or connected with the public defence may, 
 by order in council, be declared within the management of 
 this department, saving the rights of the secretary of state 
 for war as to imperial interests. 
 
 14. THE DEPARTMENT OF PUBLIC PRINTING AND STATIONERY. 
 
 A new department was created in 1886, called " The 
 department of public printing and stationery," and the 
 secretary of state or some other member of the privy 
 council presides over it. 
 
 All printing, stereotyping or electrotyping, lithography 
 or binding work, or work of a like nature, and paper and 
 other material therefor, required for the use of the senate 
 and of the house of commons and of the several depart- 
 ments of the government of Canada — inside and outside 
 service — must be procured or executed subject to the super- 
 intendence of this department. 
 
 This department also manages the purchase and distribu- 
 tion of all books and all other articles of stationery, and the 
 distribution and sale of all books or publications issued by 
 either of the houses of parliament or any department, and 
 all public advertising. 
 
94 GOVERNMENT IN CANADA. 
 
 The Governor in council appoints by commission the 
 Queen's printer and controller of stationery, who is the 
 deputy head of this department, and holds office during 
 pleasure. There are several officers connected with the 
 public printing establishment and stationery office. 
 
 The Queen's printer prints and publishes, under the 
 authority of the Governor in council, the official gazette of 
 the Dominion, known as the Canada Gazette. All the 
 requisite departmental and other reports, forms, documents 
 and other papers, all state proclamations, and all official 
 notices, advertisements and documents relating to the 
 Dominion of Canada and under the control of parliament, 
 and requiring publication, must be published in the Canada 
 Gazette, unless some other mode of publication is required 
 by law. 
 
 15. THE DEPARTMENT OF TRADE AND COMMERCE. 
 
 This department was created in 1887, and is presided 
 over by the minister of trade and commerce, a member of 
 the privy council of Canada. His powers and duties extend 
 to the execution of laws enacted by the parliament and of 
 orders in council relating to trade and commerce. A pro- 
 clamation of the Governor is necessary before the Act 
 creating this department takes effect. 
 
ADMINISTRATIVE GOVERNMENT. 95 
 
 THE HIGH COMMISSIONER OP CANADA. 
 
 The Governor in council appoints, under the great seal 
 an officer called "The High Commissioner for Canada." 
 who holds office during pleasure at a salary of $10,000 per 
 annum. He acts as representative and resident agent of 
 Canada in the United Kingdom, and he exercises such 
 powers, and performs such duties, as are conferred on or 
 assigned to him by the Governor in council. He has the 
 charge, supetvision, and control of the immigration offices 
 and agencies. He carries out instructions respecting the 
 commercial, financial, and general interests of Canada. 
 
 The high commissioner is specially entrusted with the 
 general supervision of all the political, material and finan- 
 cial interests of Canada in England. He occupies a quasi- 
 diplomatic position at the court of St. James, with all the 
 social advantages of such rank and position. (Official Cor- 
 respondence, 1879.) 
 
96 GOVBENMENT IN CANADA. 
 
 CHAPTEE IX. 
 
 THE DISTRIBUTION OP LEGISLATIVE POWEES IN CANADA. 
 
 Provincial and . Dominion sovereignties, opinions of eminent 
 Canadian judges — Sovereignty in the United States, 
 classes in the 91st section — Classes in the 92nd section — 
 Education — Concurrent jurisdiction — Grouping of sub- 
 jects assigned to the Dominion — Assigned to the provinces 
 — Disputed jurisdiction — Cases — Reserve powers, distri- 
 bution of powers — Comparison with American union — 
 Mr. Dicey on the principle of distribution. — General 
 powers of parliament — The territories. 
 
 In some respects it would have been more convenient, 
 and perhaps more consistent to have begun any discussion 
 on the constitution of Canada with the executive and legis- 
 lative powers of the provinces, and having endeavoured to 
 define these, to proceed then with the powers of the 
 Dominion government. The powers of the Canadian 
 parliament on the one hand are subject to imperial author- 
 ity, and on the other are shorn of a large part of legislative 
 and executive control by the powers given to the provinces. 
 The parliament of Canada stands midway between the 
 sovereignty of the British parliament and what is some- 
 times called the sovereignty of the local legislatures. The 
 accepted meaning of the term sovereignty as used by con- 
 stitutional lawyers in England, is not readily adjusted 
 to the jurisprudence of any country governed under a purely 
 federal system. Among the numerous definitions of sov- 
 ereignty, a simple one is given, viz., that it extends to 
 everything which exists in a state by its own authority, or 
 is introduced by its permission. A dependency cannot be 
 sovereign. If there were no division of governmental 
 
THE DISTRIBUTION OF LEGISLATIVE POWER IN CANADA. 97 
 
 power in Canada, it would nevertheless lack the essential 
 element of sovereignty. It is maintained by many writers 
 that a division of powers, such as there is in the United 
 States, prevents that country in a constitutional point of 
 view, from being a sovereign state. The convention — that 
 political organization which represents the people, and 
 which can be set in motion for the purpose of altering the 
 constitution — is alone sovereign. If the central govern- 
 ment possesses part, and the states the remainder, then 
 in the opinion of matny other writers the sovereignty is en- 
 joyed between them, and possessed in the aggregate by 
 both, {a) It is admitted however by all, that the central 
 and state governments are each sovereign within their own 
 limits, — a description, however, which falls short of the 
 English theory of sovereign power, inasmuch as it is limited; 
 and it is manifest if the people of the United States can 
 control both constitutions by the convention, that the 
 supreme power rests with them, and them alone. In our 
 own country it has been said judicially that, subject to 
 imperial authority, the powers of the parliament of Canada 
 are the general powers of a sovereign state, excepting those 
 which have been specially conferred on the provinces. (6) 
 The effect of imperial authority is that the Dominion par- 
 liament has no power to pass any Act, repugnant to the 
 provisions of any Act of parliament, order, or regulation 
 thereunder, having the force of law in England. Such an 
 Act, if passed, would be void and inoperative, but only, 
 however, to the extent of its repugnancy, (c) 
 
 (a) The tenth amendment to the United States constitution gives the 
 reserved powers to the state or to the people. If sovereignty was not in 
 the aggregate given to the central and state governments, then they do 
 not possess it. They have no more than they received. 
 
 (6) Mr. Justice (now Chief Justice) Wilson, in Queen v. Taylor, 36 TJ. 
 0. R. 
 
 (c) Imperial Act, 28 and 29 Vic. cap. 63. A colonial Act is not void 
 merely because it is inconsistent with the royal instructions to the 
 Governor-General. 
 
 o's.G.c. 8 
 
98 GOVERNMENT IN CANADA. 
 
 There is at least one limitation to the provincial sover- 
 eignty, to adopt the language parallel to that of federal 
 writers, (d) Another high judicial authority speaking of 
 the provincial legislature says : 
 
 " The powers of their legislatures are not conferred on 
 them by their own provinces, but by the people of Canada, 
 with the consent of the sovereign power of Great Britain ; 
 and 'these provinces cannot confer a sovereignty which will 
 extend over them, and they cannot be regarded as sovereign 
 states. " (e) 
 
 The limitation on the Dominion parliament by reason of 
 imperial authority, is, however, not much more than the 
 nominal subjection of a colony to the mother country. 
 Assuming that no laws will be passed in Canada, repug- 
 nant to those in Great Britain, there is very little subjection 
 in that quarter beyond the fact of paramount authority in 
 reserve. The Act of 28 and 29 Victoria could be repealed 
 by the British parliament, and so could the Act of Union of 
 the following session, but unless the people of Canada so 
 desire it, these are only speculative possibilities. The late 
 Chief Justice Draper was of opinion that the parliament of 
 Canada has the right to legislate on the subjects mentioned 
 in the 91st section of the Act to the exclusion of the Im- 
 perial parliament. The exclusive authority mentioned in 
 that section as belonging to Canada does not; he says, refer 
 to the subordinate provincial authorities, whose powers 
 were not then conferred on them, but refers to the matters 
 on which the imperial parliament has renounced its right 
 to legislate. In support of this he refers to the two 
 constitutions given to Canada in the reign of Geo. III., 
 which empower the colonial legislature to make laws for the 
 
 (d) The power of disallowance of a provincial statute rests solely with 
 the government of Canada. The imperial authorities have declined to deal 
 with a power given to the Governor-General of Canada. 
 
 (e) Chief Justice Hagarty, in Leprohon v. Ottawa, 2 App. Ont. 
 
THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 99 
 
 " peace, welfare, and good government" of Canada. The 
 present constitution sets out specifically the subjects which 
 the parliament of Canada can deal with, and which may be 
 supposed to comprise all subjects within the " peace, order, 
 and' good government " of Canada ; and in regard to these 
 the English legislature has no concern, and has deprived 
 itself of the right of ever interfering. (/) 
 
 The 91st section, to which the learned chief justice refers, 
 is as follows : 
 
 " It shall be lawful for the Queen, by and with the advice 
 and consent of the senate and house of commons, 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 legislature 
 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 (notwithstanding any- 
 thing in this Act) the exclusive legislative authority of the 
 parliament of Canada extends to all matters coming within 
 the classes of subjects next hereinafter enumerated, that is 
 to say : 
 
 (1). The public debt and property. 
 
 (2). The regulation of trade and commerce.' 
 
 (3) . The raising of money by any mode or system of taxation. 
 
 (4). The borrowing of money on the public credit. 
 
 (5). Postal service. 
 
 (6). The census and statistics. 
 
 (7). Militia, military and naval service, and defence. 
 
 (8). The fixing of and providing for the salaries and allow- 
 ances of civil and other officers of the government of 
 Canada. 
 
 (9). Beacons, buoys, lighthouses, and Sable Island. 
 
 (f) Regina v. Taylor, 36 U. C. K. See also Crombie v. Jackion, per 
 Wilson, J. fnow C.J.) 
 
100 GOVERNMENT IN CANADA. 
 
 (10). Navigation and shipping. 
 
 (11). Quarantine, and the establishment and maintenance 
 of marine hospitals. 
 
 (12). Sea, coast and inland fisheries. 
 
 (13). Ferries between a province and any British or foreign 
 country, or between two provinces. 
 
 (14). Currency and coinage. 
 
 (15). Banking, incorporation of banks, and the issue of 
 paper money. 
 
 (16). Savings banks. 
 
 (17). Weights and measures. 
 
 (18). Bills of exchange and promissory notes. 
 
 (19). Interest. 
 
 (20). Legal tender. 
 
 (21). Bankruptcy and insolvency. 
 
 (22). 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 constitution of courts of 
 criminal jurisdiction, but including the procedure in 
 criminal matters. 
 
 (28). The establishment, maintenance and management of 
 penitentiaries. 
 
 (29). Such classes of subjects as are expressly excepted in 
 the enumeration of the classes of subjects by this Act 
 assigned exclusively to the legislatures of the pro- 
 vinces. 
 
 And any matter coming within any of the classes of sub- 
 jects enumerated in this section shall not be deemed to 
 come within the class of matters of a local or private nature 
 comprised in the enumeration of the classes of subjects by 
 this Act assigned exclusively to the legislatures of the pro- 
 vinces. 
 
THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 101 
 
 The matters referred to in the last of these enumerated 
 powers as expressly excepted in the provincial list of powers 
 are comprised in three heads : 
 
 (1). The office of Lieutenant-Governor. 
 
 (2). Marine hospitals. 
 
 (3). Local public works or undertakings set out in the 10th 
 class of subjects assigned to the provinces comprising 
 (a) inter or extra provincial or foreign lines of steam 
 or other ships, railways canals, telegraphs and other 
 works and undertakings ; (b) lines of steamships be- 
 tween the provinces and any British or foreign country; 
 (c) provincial works for the advantage of Canada in 
 more than one province. 
 
 The 92nd section is in these words : 
 
 EXCLUSIVE POWERS OF PROVINCIAL LEGISLATURES. 
 
 92. In each province the legislature may exclusively 
 make laws in relation to matters coming within the classes 
 of subjects next hereinafter enumerated, that is to say — 
 
 (1). The amendment from time to time, notwithstanding 
 anything in this Act, of the constitution of the province, 
 except as regards the office of Lieutenant-Governor. 
 
 (2). Direct taxation within the province in order to the rais- 
 ing of a revenue for provincial purposes. 
 
 (3). The borrowing of money on the sole cjredit of the pro- 
 vinces. 
 
 (4). The establishment and tenure of provincial offices and 
 the appointment and payment of provincial officers. 
 
 (5). The management and sale of the public lands belong- 
 ing to the province, and of the timber and wood thereon. 
 
 (6). The establishment, maintenance and management of 
 public and reformatory prisons in and for the province. 
 
102 GOVERNMENT IN CANADA. 
 
 (7). The establishment, maintenance and management of 
 hospitals, asylums, charities, and eleemosynary insti- 
 tutions in and for the province, other than marine 
 hospitals. 
 
 (8). Municipal institutions in the province. 
 
 (9). Shop, saloon, tavern, auctioneer, and other licenses, in 
 order to the raising of a revenue for provincial, local, 
 or municipal purpose. 
 
 (10). Local work and undertakings, other than : — 
 
 a. Lines of steam or other ships, railways, canals, tele- 
 graphs, and other works and undertakings connecting 
 the province with any other or others of the provinces, 
 or extending beyond the limits of the provinces : 
 
 6. Lines of steamships between the province and any 
 British or foreign country : 
 
 c. Such works, as, though wholly situate within the pro- 
 vinces, are before or after their execution declared by 
 the parliament of Canada to be for the general advan- 
 tage of Canada, or for the advantage of two or more of 
 the provinces. 
 
 (11). The incorporationof companies with provincial objects. 
 
 (12). The solemnization of marriage in the province. 
 
 (13). Property and civil rights in the province. 
 
 (14). The administration of justice in the province, including 
 the constitution, maintenance and organization of 
 provincial courts, both of civil and criminal juris- 
 diction, and including procedure in civil matters in 
 those courts. 
 
 (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. 
 
THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 103 
 
 The 93rd section gives to the province the exclusive right 
 of making laws in relation to education, preserving the then 
 existing rights and privileges of any denominational schools. 
 Whatever powers, privileges and duties had been conferred 
 or imposed on separate schools in Upper Canada, were 
 extended to dissentient schools in Quebec, and provision 
 was made for an appeal to the Governor-General in regard 
 to these schools in any province. 
 
 The 94th section provides for the uniformity of laws in 
 the four provinces by means of an Act of the parliament 
 of Canada ; but as the Act does not take effect " until it is 
 adopted and enacted as law by the legislature_" of the 
 province, it is only a power by consent of the two legisla- 
 tures. 
 
 The 95th section is the only other one that confers a 
 law-making power on the Dominion parliament. The par- 
 liament of Canada and the provincial legislatures may from 
 time. to time make laws in relation to agriculture and im- 
 migration, the provincial lawa taking effect so long as they 
 are not repugnant to Acts of parliament of the Dominion. 
 These two matters are in reality the only ones over which 
 there is concurrent jurisdiction. The public works are 
 sometimes said to be under concurrent jurisdiction, but the 
 Dominion and provincial works are distinct, and each 
 belongs to and is managed by one authority, {g) 
 
 Although there are many other powers conferred by the 
 B. N. A. Act and by subsequent imperial legislation, all of 
 which will be noticed presently, the foregoing classes of 
 subjects are the basis of legislative authority for the 
 Canadian union and for the provinces. 
 
 (g) Earl Carnarvon places the concurrent powers over these three 
 subjects. 
 
104 GOVERNMENT IN CANADA. 
 
 In glancing over the classes of subjects assigned to the 
 government of Canada it is easy to recognize them as sub- 
 jects common to all the provinces, and which are properly 
 left to the central government, the intention being to make 
 laws generally for the peace, order and good government of 
 Canada. These may be arranged as follows : 
 
 1. To provide means to carry on the work of government. 
 
 Raising money by taxation (3); borrowing money 
 on public credit (4) ; paying salaries (8). All this 
 in the foundation of a certain amount of public 
 debt and property (1). {h) 
 
 2. Subjects obviously common to all. 
 
 The postal service (5) ; the militia and defence (7) ; 
 naturalization and aliens (25) ; the census and 
 statistics (6) ; the criminal law (27) ; peniten- 
 tiaries (28) ; patents of invention (22) ; copy- 
 right (23) ; currency (14) ; banking and paper 
 money (15) ; inter or extra-provincial ferries (13) ; 
 navigation and shipping (10) ; legal tender (20) ; 
 bankruptcy (21). 
 
 3. Subjects where uniformity is desirable. 
 
 Eegulation of trade and commerce (2) ; savings 
 banks (16) ; bills and notes (18) : weights and 
 measures (17) ; interest (19) ; care of the In- 
 dians (24) ; quarantine (11) ; marriage and di- 
 vorce (26) ; fisheries (12). 
 
 4. Subjects where the expense should be borne in common. 
 
 ■Lighthouses (9) ; quarantine and marine hospi- 
 tals (11) ; the public debt (1). 
 
 (h) The public property is given in tlie third schedule to the Act". 
 There are also the revenues and stocks mentioned in sections 102 and 107 
 belonging to Canada. 
 
THE DISTRIBUTION OF LEGISLATIVE POWERS IN CANADA. 105 
 
 In section 92, if we proceed on a like classification — 
 keeping in view that the intention was generally to reserve 
 all matters of a merely local or private nature to the 
 provinces. 
 
 1. To provide means to carry on the work of government. 
 
 Direct taxation (2) ; borrowing money on permanent 
 credit (3) ; paying salaries (4) ; shop, saloon and 
 other licenses (9). 
 
 2. Subjects obviously belonging to the provinces. 
 
 Local and private matters (16) ; property and civil 
 rights (13) ; municipal institutions (8) ; public 
 lands and the timber and wood on them (5) ; local 
 public works and undertakings (10) ; the adminis- 
 tration of justice — the courts (14) ; hospitals, 
 asylums and charities (7) ; prisons (5) ; incorpo- 
 ration of companies with provincial objects (11) ; 
 solemnization of marriage (12). (i) 
 
 8. Exceptional powers. 
 
 Amendment of the provincial constitution (except 
 as to Lieutenant-Governor) (1); enforcement of 
 provincial powers by fine, penalty or imprison- 
 ment (15). 
 
 It might have been easy to predict that some of the sub- 
 jects in the 91st section given over to Canadian control 
 would relate clearly to subjects under provincial jurisdic- 
 tion. Thus in section (1) of the former, the extent of the 
 public property given to Canada is to be traced only by a 
 careful survey of the schedule already referred to, and by 
 reading it with several sections of the Act. It has been 
 held that lands escheating to the Crown for want of heirs 
 do not revert to Canada, but to the province wherein the 
 lands are situate, (j) Again lands reserved to Indians by 
 
 (i) Education is by special sections reserved to the provinces. 
 (j) Attorney -General v. Mercer, L.K. 8 App. P. C. 176. 
 
106 GOVERNMENT IN CANADA. 
 
 the 24th section are, so far as the litigation has yet gone, 
 to be considered as owned by the province but managed by 
 the government of Canada as trustees for the Indians, (/c) 
 The regulation of trade and commerce given in the second 
 class of the 91st section has been opposed by the tenth and 
 other classes in the 92nd section, (l) The right to legis- 
 late on licenses gave rise to two enactments, one by the 
 Ontario government and another by the Dominion govern- 
 ment known respectively as the Crooks Act and the McCarthy 
 Act, in which the provincial jurisdiction was upheld. (?n) The 
 jurisdiction of the provinces to a certain extent over rivers 
 and streams was questioned several times but was finally 
 upheld ; (n) as was also the right of a local legislature to 
 attach uniform conditions to policies of insurance. The 
 law as to insolvency and a ratable distribution of an insol- 
 vent's estate is one that may appear to come within property 
 and civil rights; just as the regulation of insurance policies 
 is close to the subject of trade and commerce. 
 
 These are some of the difficulties that arise under a sys- • 
 tem where the legislative power is divided between two 
 enacting bodies — both claiming exclusive jurisdiction over 
 the subject in dispute. The general legislative control of 
 the parliament of Canada cannot be determined but by a 
 careful elimination of the provincial jurisdiction over the 
 general local government of the provinces. The Acts of 
 the provincial legislature which conflict with the powers 
 conferred specifically or generally upon the general govern- 
 ment are ultra vires ; so on the other hand Acts of the 
 Dominion parliament or government conflicting with powers 
 
 (h) Attorney-General v. The St. Catharines Milling Coy. 13. O. A. 148. 
 (l) Severn v. The Queen, 2 Can. S. C. 77. Queen v. Taiilor, 36 U. C: 2. 
 B. 218. 
 
 (m) Russell v. The Queen— 8. C. — and The Queen v. Hodge, B. L. 9 
 App. (P. C.) 117. 
 
 (n) McLaren v. Caldwell, L. C. 9 App. (P. C.) 392. 
 
THE DIBTKIEUTION OF LEGISLATIVE POWERS IN CANADA. 107 
 
 conferred exclusively upon the provincial legislature vyould 
 be ultra vires, would be acts of usurpation. This must re- 
 sult from each being creatures of the one power — each 
 deriving its authority from the same source, (o) 
 
 Within their respective limits each legislature is complete, 
 absolute and supreme. The Dominion parliament has no 
 more authority to interfere with or regulate maiters 
 specially assigned to the provinces than the provincial 
 legislatures to regulate matters within the jurisdiction of 
 the Dominion parliament, (p) 
 
 It has been usual to say that the legislative powers under 
 the 92nd section given to the provinces are enumerated 
 powers, and that the powers in the preceding section given 
 to the parliament of Canada are the reserve, the general 
 powers. It has been also said that a federal law is presum- 
 ably valid unless on the list assigned to the provinces ; a 
 provincial law is presumably void unless in the enumerated 
 list. The provinces can claim nothing in the way of legis- 
 lative powers except what is expressly given to them; the 
 Dominion can claim everything except what is expressly 
 taken away from it. 
 
 This, however true it may be, is the language of American 
 writers with regard to the central and the state govern- 
 ments of their Union ; and it is language that, from their 
 point of view, cannot be objected to. Section 8 of the 
 United States constitution begins as follows : 
 
 Congress shall have power, — 
 (1) To lay and collect taxes, etc." 
 
 (o) Per Chancellor Spragge in Leprohon v. Ottawa, 2 Ont. app. 524. 
 
 (p) Per Mr. Justice Burton in Parsons v. The Citizen's Insurance Co., i 
 Ont. App. 96, and see also Chief Justice Harrison in Leprohon v. Ottawa, 
 in 40 U. C. E. 486. 
 
108 GOVKENMENT IN CANADA. 
 
 And then follow sixteen other sections enumerating the 
 powers of the government of the United States. Section 
 (9) imposes some restrictions on congress, and the follow- 
 ing section prohibits the states from entering into any 
 treaty, alliance or confederation, or laying any imposts or 
 duties except what may be necessary for executing their 
 respective laws. This is the extent of the enumeration ; and 
 by the ninth amendment to the constitution it is not to be 
 construed to deny or disparage others retained by the 
 people. The tenth amendment, passed in 1791, is as 
 follows : 
 
 The powers not delegated to the United States by the 
 constitution, nor prohibited by it to the states are reserved 
 to the states respectively, or to the people. 
 
 Compare the foregoing with the language of the 91st and 
 92nd sections of the B. N. A. Act, and there is a wide differ- 
 ence. Of the seventeen subjects given to the United States 
 government six refer to the army, navy, militia and the 
 declaration of war ; commerce, currency, naturalization and 
 the postal service form four others ; while the remainder are 
 taken up with the powers of borrowing money, collecting 
 taxes, the promotion of science, and some necessary pro- 
 visions for the maintenance of any government. There is 
 nothing in the first draft of the constitution in regard to 
 the states except that they were guaranteed a republican 
 form of government. 
 
 Now, the United States government has such powers 
 only as are to be found delegated to it by the 8th sec- 
 tion, and its legislation is presumably valid if vrithin its 
 scope, and presumably void if not within it. The states 
 can claim every subject, unless those within the 8th section, 
 and have every power except what that section takes from 
 them. 
 
THE DISTEIBDTION OF LEGISLATIVE POWERS IN CANADA. 109 
 
 In the Canadian union, under the B. N. A. Act, the 
 legislative powers are strictly not powers conceded and 
 powers withheld ; they are not enumerated as opposed to 
 non-enumerated powers ; there is no grant and reservation. 
 The fact was the provinces agreed to divide the powers into 
 two classes, giving one to the central government, and 
 retaining the other class for themselves. The mother 
 country ratified the arrangement exactly in this way, so 
 ' that the legislation corresponds with the facts and circum- 
 stances that brought it about. The sixth division of the 
 Act is as follows : 
 
 VI. DISTEIBUTION OF LEGISLATIVE POWEKS. 
 
 Poiuers of the Parliament. 
 
 By the 91st section " the exclusive legislative authority of 
 the parliament of Canada extends to all matters coming 
 within the classes of subjects next hereinafter enumerated;" 
 and then follow the 29 classes of subjects. 
 
 In the 92nd section the language is varied in this way : 
 
 Exclusive powers of provincial legislatures. 
 
 92. In each province the legislature may exclusively 
 make laws in relation to matters coming within the classes 
 of subjects next hereinafter enumerated, etc., 
 
 And as in the preceding section the classes — 16 in all — as- 
 signed to the provinces, follow. In the Dominion, the 
 classes of subjects do not restrict the powers of the legisla- 
 ture to deal with any law necessary for the peace, order or 
 good government of Canada ; and it must be taken to be 
 the case that the parliament of Canada can legislate in 
 reference thereto if the case was not already nCiet with in 
 the provincial powers. To this extent it is correct to say 
 that the reserve powers are in the Dominion government — 
 that is the reserve after the two classes in sections 91 and 
 92 are taken into account. 
 
110 GOVERNMENT IN CANADA. 
 
 Still another limitation must be put on these reserve 
 powers. They must not refer to anything of a merely 
 local or private nature in the provinces because clause (16) 
 of section 92 absolutely and exclusively confers these on 
 the provinces. 
 
 The fact is that in drafting the constitution the framers 
 put every conceivable subject for legislative action into forty- 
 five classes ; the provinces retained sixteen of these, being 
 fifteen enumerated and one general sub-section to . cover 
 every unenumerated residue of jurisdiction ; while the Do- 
 minion took the remaining twenty-nine subjects with a 
 correspondihg proviso including everything over and above 
 the twenty-nine subjects required for the peace, order and 
 good government of Canada. There is, if one keeps the 
 different areas of the legislatures in view, as much in reserve 
 for the provinces in their own sphere, as there is for the 
 Dominion in its sphere. It is easy to see that great par- 
 ticularity was necessary and that such was indeed used in 
 the adjustment of these classes. There is something in 
 reserve in each over and above the enumerated classes; 
 but they may be said to exhaust very completely the re- 
 spective powers of each legislature. It is like what is often 
 seen in deeds of grant ; A conveys 100 acres of land more 
 or less, but for greater particularity sets it out by metes 
 and bounds shewing 99J acres, which ma}' generally be 
 accepted as the size of the lot ; though if it should happen 
 to be more the owner could take the benefit of it. In a 
 federal constitution the owners of legislative power look to 
 the classes of subjects when they are favorable to them- 
 selves, and when they are not favorable they fall back on 
 the general terms of the grant. 
 
 Under this state of facts it is not so accurate to say that 
 the enumerated subjects are assigned to the provinces, and 
 the non-enumerated ones to the Dominion. It is not an 
 
THE DISTRIBUTION OF LEGISLATIVE POWEES IN CANADA. Ill 
 
 exactly parallel case to the reserve powers in the states of 
 the American union. The distribution of powers that took 
 place in Canada was intended to be some such division, 
 as Mr. Dicey points out should be in every federation. 
 " The details of this division vary under every different 
 federal constitution, but the general principle on which it 
 should rest is obvious. Whatever concerns the nation as a 
 whole should be placed under the control of the national 
 government. All matters which are not primarily of com- 
 mon interest should remain in the hands of the several 
 states. " 
 
 And again Mr. Dicey says : 
 
 " The distribution of powers is an essential feature of 
 federation. The object for which a federal state is formed 
 involves a division of authority between the national Gov- 
 ernment and the separate states. The powers given to the 
 nation form in effect so many limitations upon the 
 authority of the separate states, and as it is not intended 
 that the central government should have the opportunity 
 of encroaching upon the rights retained by the states, its 
 sphere of action necessarily becomes the object of rigorous 
 definition. The constitution, for instance, of the United 
 States delegates specially and closely defined powers to the 
 executive, to the legislature, and to the judiciary of the 
 union, or in effect to the union itself, whilst it provides 
 that the powers " not delegated to the United States by 
 the constitution, nor prohibited by it to the states are re- 
 served to the states respectively or to the people. This is 
 all the amount of division which is essential to a federal 
 constitution. " 
 
 The enumeration of the subjects, the apparent desire to 
 include everything in them, the use of general words in 
 both classes, and the manifest carefulness to provide for 
 
112 GOVERNMENT IN CANADA. 
 
 the provinces, ofifer so many difficulties over and above those 
 presented by the wording of the United States constitution. 
 When one section enacts that the central government 
 shall generally have the power of making laws for Canada 
 on all subjects, with the exception of those classes of 
 subjects reserved to the provinces, and the next section 
 enacts that each province shall have exclusive control of 
 all civil rights, and generally of all local matters in the 
 province, there is certainly not wanting a large field to 
 be claimed with equal earnestness and equal sincerity, by 
 both authorities. 
 
 Parliament has other powers besides those enumerated 
 in section 91. It has established a general court of ap- 
 peal — the Supreme Court of Canada— for all the provinces 
 — an exchequer and maritime courts, and may establish 
 any additional courts for the better administration of the 
 laws of Canada, (q) It fixes the salaries of the Lieutenant- 
 Governors, and provides for their payment, and fixes and 
 provides salaries for nearly all the judges of Canada. 
 
 In the removal of judges the parliament can take action 
 on addresses presented to it for that purpose. Although 
 the appointment of the judges vests technically in the 
 Governor-General, it is, of course, in the control of the 
 ministry as representing parliament, and the parliament 
 has a remedy for the removal of incompetent ones, (r) 
 It has all necessary and proper powers with the govern- 
 ment, for performing the obhgations of Canada or any of 
 its provinces, as part of the British Empire, towards 
 foreign countries, arising under treaties, between the em- 
 pire and such foreign countries, (s) It has in its hands 
 the power of deciding to whom the administration of 
 
 (g) Sec, 101. 
 (r) Sees. 96-100. 
 (s) Sec. 132. 
 
THE DISTEIBUTION OP LEGISLATIVE POWERS IN CANADA. 113 
 
 government shall be entrusted. In other •words it has the 
 power of change of ministry ; for no ministry can carry on 
 a government for any length of time unless supported by 
 a majority in parliament. . The duties and powers of an 
 administration have already been referred to under the 
 head of administrative government. It is noted for the 
 present, as one of the consequential powers of parliament. 
 Parliament, by enacting private bills, such as incorporating 
 companies, conferring privileges, or removing restraints, 
 etc., deals largely in legislation of a judicial character, 
 which forms the greater bulk of its work and is of great 
 importance to the country. 
 
 By an imperial Act passed in 1871, power was given to 
 the parliament of Canada from time to time, to establish 
 new provinces in any territories forming for the time being 
 part of the Dominion, and at the time of such establish- 
 ment make provision for the constitution and administra- 
 tion of any such province, and for the passing of laws for 
 the peace, order and good government of such province, 
 and for its representation in parliament. Similar power 
 was given to deal with the government of any territory 
 not for the time being included in any province. 
 
 P.G.C. 
 
114 GOVERNMENT IN CANADA. 
 
 CHAPTER X. 
 
 DISTRIBUTION OF REVENUE, ASSETS AND DEBTS. 
 
 Dominion assets, public works schedule, duties, revenues, 
 stocks — Debts,consolidated revenue fund, charges on it — 
 Provincial assets, lands, mines, etc. 
 
 Twenty-five sections of the B. N. A. Act are taken up 
 with the property and liabilities of the Dominion and of 
 the provinces. These are sections 102 to 126, both in- 
 cluded. Other sections, such as the 91st and the 92nd, 
 containing the distribution of powers, must also be looked 
 at in connection with this matter. 
 
 The several provinces retained all their respective public 
 property not otherwise disposed of by the Act, allowing 
 only the right to the Dominion to assume any lands or 
 public property required for fortifications or for the defence 
 of the country, (a) It is likely that lands assumed in this 
 way would have to be purchased as in the case of appro- 
 priated lands. The 13th sub-section of the 92nd section 
 gives to the provinces property and civil rights, while the 
 1st. sub-section of the 9l8t. section of the Act gives to the 
 Dominion the public debt and property. The public works 
 and property of each province, as enumerated in the fol- 
 
 (a) Section 117, Mr. Justice Burton says in the Mercer case, " I find 
 no warrant in the Act for the assertion so frequently made that all rights 
 of property, not expressly given to the province, pass to the 
 Dominion. On the contrary, I take it to be clear that the provinces re- 
 tained all property and rights which were previously vested in them, 
 under the constitutional Acts then in force, except those which by the 
 confederation Act are taken from them and transferred to the Domin- 
 
DISTBIBUTION OF REVENUE, ASSETS AND DEBTS. 115 
 
 lowing schedule, are the property of Canada, within the 
 meaning of this sub-section : (b) 
 
 (1). Canals, with lands and water power connected there- 
 with. 
 
 (2). Public harbours. 
 
 (3). Lighthouses and piers, and Sable Island. 
 
 (4). Steamboats, dredges and public vessels. 
 
 (5). Elvers and lake improvements. 
 
 (6). Eailways and railway stocks, mortgages, and other 
 debts due by railway companies. 
 
 (7). Military roads. 
 
 (8). Custom houses, post offices, and all other public build- 
 ings, except such as the government of Canada 
 appropriates for the use of the provincial legis- 
 latures and governments. 
 
 (9). Property transferred by the imperial government, and 
 known as ordnance property. 
 ^10). Armouries, drill sheds, military clothing, munitions of 
 war, and lands set apart for general public purposes. 
 
 Canada took over all duties and revenues of the old pro- 
 vinces except such portions thereof as were by the Act reserved 
 to their legislatures ; and there was formed out of them a 
 consolidated revenue fund, (c) All stocks, cash, bankers' 
 balances and securities for money belonging to each pro- 
 vince at the time of the union, unless expressly reserved 
 by. the Act, were also placed to the credit of Canada, and 
 went to reduce the provincial debts of the respective pro- 
 vinces, (d) 
 
 (b) Sec. 108. 
 
 (c) Sec. 102. See the able argument, by the Hon. W: MacdougaU, C. 
 B., reported specially in the Mercer Escheat case, 1881. 
 
 (d) Sec. 107. 
 
116 GOVERNMENT IN CANADA. 
 
 Although Canada assumed the debts and liabilities of 
 the provinces, (e) they were settled at a certain sum, and if 
 beyond, the provinces were to pay Canada interest on the 
 excess at 5 per centum per annum. 
 
 These sums were as follows : (/) 
 
 Ontario and Quebec, liable to Canada, 
 
 if their debt was over $65,500,000 
 
 Nova Scotia , 8,000,000 
 
 New Brunswick 7,000,000 
 
 If the debts of the latter two provinces were not up to 
 these respective amounts, they were to get the same rate of 
 interest in half yearlj' payments in advance on the differ- 
 ence. 
 
 Canada was to pay towards the expenses of the provincial 
 governments the following sums : 
 
 Ontario $80,000 
 
 Quebec 70,000 
 
 Nova Scotia 60,000 
 
 New Brunswick 50,000 
 
 besides an annual grant determinable on the population, 
 and a special grant to New Brunswick, (g) 
 
 This was the basis of the consolidated revenue fund of 
 Canada in 1867 ; and the balance of the duties and revenues 
 not appropriated were, along with all duties and revenues 
 raised in accordance with special provincial powers, formed 
 into provincial funds called the consolidated revenue fund 
 of the province. 
 
 (e) See. 111. 
 
 f/; See. 112, 114, 115, 116, 117. See K. S. C. cap. 46, as to additional 
 subsidies, increasing these figures about one-eighth. 
 (g) Sec. 119. 
 
DISTBIBUTION OF REVENUE,' ASSETS AND DEBTS. 117 
 
 The expenses of the public service of Canada are paid 
 out of the consolidated revenue fund. The first charge on 
 it is the costs, charges and expenses incident to its collec- 
 tion, management and receipt. The interest on the public 
 provincial debts is the second ; and the third is the Gover- 
 nor-General's salary, fixed at £10,000 sterling, or such 
 other sum as the parliament of Canada may determine. 
 After these payments are made, the balance is appropriated 
 to the public service of Canada, with no particular order of 
 preference, (h) 
 
 The Governor-General in council, unless parliament 
 otherwise directs, orders the form and manner of all pay- 
 ments or discharges of liabilities, under the Act of 186T in 
 regard to Canada and its provinces in these matters. 
 
 These funds are each year augmented in various ways. 
 Large sums are paid in from the customs, revenue and 
 public land departments, by means of tariffs, excise 6r 
 other duties, by the sale of lands, by ■ fees from the post 
 office department, and from the various other department* 
 of state. If the receipts from these sources are in advance 
 of the amount asked for in the supply bill, (which sets out 
 the expenditure of the country for the fiscal year,) then 
 there is no necessity of direct taxation, or specific grants 
 by parliament. The ways and means used for raising the 
 supplies form the budget of the year ; and when it is con- 
 sidered that in Canada the supplies voted by parliament 
 usually g,mount to a great many millions of dollats annu- 
 ally as the expenses of the government from July to July, 
 the task which the minister has in making a satisfactory 
 budget speech is not at all an easy one. 
 
 The provinces, besides what has been already referred to, 
 retained "all laiuds, mines, minerals and royalties," and 
 " all sums then due or payable for such lands, mines, 
 
 (h) Sec. 103, 104, 105, 106. 
 
Lower Canada. 
 
 118 GOVERNMENT IN CANADA. 
 
 minerals or royalties, " subject, of course, to any trust or 
 interest of any person or against the provinces, (i) All 
 assets connected with such portions of the publi?! debt of 
 each province as are assumed by that province, shall belong 
 to that province, (j) Canada gave up to Ontario and 
 Quebec conjointly the following properties belonging to the 
 late province of Canada : 
 
 Upper Canada building fund. 
 
 Lunatic asylums. 
 
 Normal school. 
 
 Court houses in^ 
 
 Aylraer, 
 
 Montreal, 
 
 Kamarouska, 
 
 Law society. Upper Canada. 
 
 Montreal turnpike trust. 
 
 University permanent fund. 
 
 Eoyal institution. 
 
 Consolidated municipal loan fund. Upper Canada. 
 
 Consolidated municipal loan fund, Lower Canada. , 
 
 Agricultural society. Upper Canada. 
 
 Lower Canada legislative grant. 
 
 Quebec fire loan. 
 
 Temiscouata advance account. 
 
 Quebec turnpike trust. 
 
 Education^east. 
 
 Building and jury fund, Lower Canada. 
 
 Municipalities fund. 
 
 Lower Canada superior education income fund. 
 
 The Dominion government has exclusive legislative 
 authority over the lands reserved to the Indians, but it is 
 not yet definitely settled whether or not the provinces are 
 
 (i) Sec. 109. (j) Sec. 110. 
 
DISTRIBUTION OF REVENUE, ASSETS AND DEBTS. 119 
 
 entitled to be con3idered owners of unpatented lands oc- 
 cupied by Indians within their limits, {k) It has been 
 decided that lands reverting to the crown under the doctrine 
 of escheat come under the control of the provinces, (l) 
 
 The assets of the Dominion at confederation were very 
 inconsiderable compared with the vast resources she now 
 possesses. The addition of two colonies was not of very 
 great importance, but the purchase by the government of 
 Canada of the Hudson Bay territory shortly after 1867 
 placed a large portion of the continent at her disposal — a 
 tract of country 1,200 miles long and 500 miles broad, (m) 
 The imperial Act was passed in 1868, (32 and 33 Vie. cap. 
 105,) and in. the following year the payment of the purchase 
 money to the Hudson Bay Company, £300,000, was guar- 
 anteed by another imperial Act. By an order in council 
 of the 28rd. of June, 1870, the North Western territory and 
 Eupert's Land were admitted and became part of the 
 Dominion, 
 
 (k) Regina v. The St. Catharines Milling Co., 103 A. P. 148. 
 
 (I) Mercer v. The Attorney -General of Ontario, L. E. 8 App. 767. 
 
 (m) This purchase and the purchase of Louisiana from France by the 
 United States of America, in 1803, may be regarded as the two largest in 
 history. 
 
120 GOVERNMENT IN CANADA. 
 
 CHA.PTEE XL 
 
 PEOCEDUEE IN PAELIAMENT — BILLS. 
 
 Summoning parliament — Speaker of the commons— Speech 
 from the throne — Business of the houses— Privileges 
 of meynhers — Different stages of a hill, conferences, 
 how a hill becomes an Act, peculiar hills, supply, 
 divorce, private bills, deposits — Prorogation, dissolution. 
 
 The Governor-General, under advice, exorcises the power 
 of summoning parliament, proroguing it when necessary 
 or desirable, and dissolving it, so far as the commons is 
 concerned, within the period of five years from its com- 
 mencement. 
 
 By section 20 of the B. N. A. Act, there must be a session 
 at least once in every year, bo that twelve months shall not 
 intervene between the last sitting of the parliament in one 
 session and its first sitting in the next session. 
 
 The senate and commons are summoned by proclama- 
 tion to attend at Ottawa on a certain day, usually in Feb- 
 ruary, " for the despatch of business ; to treat, do, act and 
 conclude upon those things which in our said parliament 
 of Canada, by the common council of our said Dominion, 
 may by the favour of God be ordained." 
 
 The parliament is opened by the Governor in person in 
 the senate chamber. The senators being assembled, the 
 speaker commands the gentleman usher of the black rod 
 to proceed to the commons and acquaint that house that 
 " it is his Excellency's pleasure that they attend him im- 
 mediately in this house." The commons then proceed in 
 
PROCEDURE IN PARLIAMENT BILLS. 121 
 
 a body to the bar of the senate, and, if at the beginning of 
 a new parUament, are instructed to choose a speaker for 
 their house. They .then return, to their own house, and 
 having chosen a speaker, are again summoned to the senate, 
 usually on the following day, and the speaker is then pre- 
 sented to the Governor-General. The speaker is the 
 official means of communication between him and the 
 commons, and is the first commoner in the Dominion. 
 
 At the beginning of each parliament, and of each of its 
 subsequent sessions, the Governor General opens the session 
 with a gracious speech to both houses, which is reported to 
 them by the speaker of the senate. This address is pre- 
 pared by the ministers of the crown, and is supposed to 
 contain the leading points of proposed legislation on the part 
 of the government. Before it is reported, however, some bill 
 is read pro forma. This is to assert the right of the parlia- 
 ment to proceed with their work notwithstanding the fact 
 that the crown may not have suggested to them any legis- 
 lation. Afterwards the speech is discussed in the house, 
 and, if the policy proposed in it is acceptable, it is adopted 
 and a reply presenteH to the Governor- General. The legis- 
 lation of the session is then taken up. English and French 
 may be used in the debates in both houses, and the journals 
 of the debates are entered in these languages. The rules 
 of the house form quite a code of its kind. Members are 
 not limited to time in -their speeches, but they are not 
 allowed to read them, though they may use notes and may 
 cite extracts. Nothing disrespectful of Her Majesty or the 
 royal family is permitted. It is not proper to refer to the 
 other house or to previous debates, or to call a member by 
 name, or to question the meaning he puts on his own 
 words, (a) 
 
 (a) Unless it can be established that the parliament of Canada has, the 
 power, by express grant, to adopt the cloture, such a power is not inherent 
 in a colonial legislature. The fact that the houses here in Canada.' may 
 
122 GOVERNMENT IN CANADA. 
 
 The house ordinarily meets every day at three o'clock 
 except on Saturdays, and if sufficient members are present 
 to form a quorum, proceeds to the despatch of business. 
 This number, as has been remarked, is fifteen in the senate 
 and twenty in the commons, of which number the speaker 
 in each may be reckoned as one. Certain routine business, 
 sach as presenting and receiving petitions, and presenting 
 reports of the different committees in the house, and 
 motions are taken up every day as they occur, and after- 
 wards the orders of the day, which are different every day, 
 are read and proceeded with. A day or more in the week 
 is usually reserved to the government, in view of the large 
 amount of business in its hands. 
 
 Every member is privileged to bring in a motion or bill ; 
 but in- the commons he must give notice of his intention to 
 bring in a bill. When a bill is brought in the house it is 
 read simply without discussion. On the second reading 
 the principles of the bill are discussed. If not interrupted 
 at this or towards the next stage, the bill is committed ; 
 that is, it" is taken into consideration in a committee of the 
 house. When the house goes into committee the speaker 
 leaves the chair, and the mace, which represents royal 
 authority, is put under the table. The 'house may then 
 appoint any member as chairman, and the strict rules of 
 debate observed in parliament are relaxed. There are 
 three classes of committees : 
 
 1. Committees of the wh^le house ; 
 
 2. Select or special committees, which do not sit in the 
 
 house, but in .another room when. the house is not 
 sitting; 
 
 3. Joint committees composed of members of both houses. 
 
 adopt the rules of the imperial parliament does not of itself bring with 
 it all future changes in the imperial parliament. See the case' of Barton 
 V. Taylor, L. R. 11 App. Cases, 197. 
 
PROCEDURE IN PARLIAMENT — BILLS. 123 
 
 In committee each clauseof the bill is considered and voted 
 upon. If the committee have not time to get through they 
 ask leave to sit again. When ready to report, or when the 
 committee must rise, the speaker resumes the chair and 
 the house proceeds to business. If ready, the bill is then 
 read a third time. The only parts usually left for a fourth 
 reading are the preamble and title, which are always the 
 last things considered. The bill, having gone through 
 these different stages in the house where it originates, is 
 sent to the other house, where it passes through the same 
 stages as to readings. Those in favour of the bill in the 
 senate are the " contents " ; those opposing it the *• non- 
 contents." In the commons the members vote by " ayes " 
 and " noes." In all unprovided cases the senate follows 
 the rules, usages anJ forms of the house of Lords in Eng- 
 land, and the commons in such cases follows the English 
 commons. The duties of the speakers have been already 
 referred to. (b) 
 
 In case of amendments by one house to a bill sent from 
 the other, the- senate arranges conferences to bring about 
 an agreement. Eor this purposie each house appoints its 
 own bearers of messages. One of the clerks of either house 
 may be a bearer from one house to another, and the master 
 in chancery, attending the senate, is received as their 
 messenger to the commons. Messages may also be brought 
 up by one or more members of the commons to the senate. 
 A committee of either house does not receive a message, 
 from the other. The speaker takes the chair ; and the 
 message, after being received at the bar, is delivered to the 
 speaker, who reports the same to the house — the answer 
 is sent and received with corresponding formality. If 
 no agreement as to amendment is arrived at, the bill is 
 lost. 
 
 (6) See ante, chaps. IV. and V. 
 
124 GOVERNMENT 'in CANADA. 
 
 After having been passed by both houses, it only requires 
 the assent of the Governor- General to make it an Act of 
 parliament. When a bill passed by both houses is present- 
 ed to His Excellency, he has three courses constitutionally 
 open to him. He may assent to the bill, in the Queen's 
 name ; he may withhold the Queen's assent ; or he may 
 reserve the bill for the signification of the Queen's pleasure. 
 The Queen's assent is seldom withheld: but not unfre- 
 quently bills are reserved for the signification of Her 
 pleasure. The royal instructions to the Governor-General 
 set out specifically certain bills, such as divorce, etc., 
 which must be reserved. When the bill is assented to by 
 the Queen's representative it becomes an Act of parliament 
 — a part of the statute law. (c) 
 
 All bills, except the supply bill, are supposed to come 
 from the senate to the crown. The supply bill being 
 essentially a bill of the house of commons, is assented to 
 -specially by the Governor-General, thanking them for 
 affording the funds pecessary for carrying on the govern- 
 ment of the country. The crown suggests' the supplies ; 
 and probably if the case should arise in this country the 
 crown would originate a bill for a general pardon in ana- 
 logy to British precedent. Beyond this, all measures 
 originate indifferently either in the senate or commons. 
 Some bills are left to be originated in select committees,, 
 some in committees of the whole house. The public bills 
 affect the whole Dominion — private bills affect individuals, 
 companies, or corporations. These latter bills, before be- 
 ing entertained, require a deposit of flOO in the senate 
 and $200 in the commons, and the costs of printing and 
 translating the copies sent in. This is in order to cover 
 
 (c) The old distinction between an Act of parliament and » statute 
 was this, that an Act of parliament was an Act of two houses and that it 
 became a statute only when the Queen assented to it. This distinction 
 is now forgotten or lost sight of. ' 
 
PROCEDUKE IN PARLIAMENT — BILLS. 125 
 
 the necessary expenses ; and private bills must also be 
 advertised in the Canada Gazette, the official journal of the 
 government, for two months before the house opens. 
 
 When the work of the session is concluded, parliament 
 is prorogued. The speaker of the senate is informed that 
 the Governor-General will proceed to the senate chamber 
 at a certain day and hour and close the session. At the 
 proper time when the two houses are in session the com- 
 mons is acquainted that it is His Excellency's pleasure that 
 they attend him in the senate. The speaker in the com- 
 mons and the members proceed to the bar of the senate 
 and after the titles of the bills are read by the clerk in 
 chancery, and the bills assented or reserved as the case 
 may be, the supply bill is presented by the speaker of the 
 commons. His Excellency replies, assents to the supply 
 bill of the faithful commons, and declares the parliament 
 prorogued. The session is then concluded and nothing 
 can be done with any bill or proceeding till another session 
 with the usual formalities has been commenced. This is 
 the distinction between a prorogation and an adjournment 
 — the latter simply continuing the work from day to day 
 or to a day named, while a prorogation is from session to 
 session. A dissolution on the other hand is the termination, 
 of the house of commons as composed of the actual mem- 
 bers representing their constituencies. It does not affect 
 the senate much more than a prorogation, except that it 
 brings about a new set of members and possibly a change 
 of ministry. . A dissolution of parliament -virtually means 
 dissolving the commons. 
 
126 GOVERNMENT IN CANADA. 
 
 CHAPTEE XII. 
 
 CONSTITUTIONS OF THE PROVINCES. 
 
 Less particularity in describing the provincial constitutions 
 than the Dominion — Comparison with V. S. constitution 
 — Veto — Statutory description of the provinces, execu- 
 tives — Ontario and Quebec, Nova Scotia and New Bruns- 
 wick — Powers common to all — Disalloivance — Strict 
 and relaxed views of the constitution, Mr. Justice 
 Gwynne — Chief Justice Sir Willia7n Ritchie, provincial 
 autonomy. 
 
 Jt will be seen from the foregoing chapters with what 
 particularity the Act of Union provides for the establish- 
 ment, the jurisdiction, and the maintenance of the general 
 government of Canada. It was a new creation, and digni- 
 fied in express terms with the name of a parliament, (a) 
 supplied with a certain amount of property and the power 
 to acquire the other British provinces and territories 
 adjoining it. The new government undertook to watch 
 over the general interests of those -colonies that entered 
 the union ; the legislative and executive control were as 
 sharply defined as could be without resorting to 'the codifi- 
 cation of all subjects ; while the form and ■composition of 
 the machinery of government were so detailed and compre- 
 hensive as to leave that part of it little open to conjecture. 
 
 {a) Whether any British possession in America evei had a parliament 
 before the Dominion of Canada got one, is a question that the reader can 
 find discussed elsewhere and from opposite points of view. No plantation 
 or colony ever received it in so many words, although it was certainly 
 assumed to be reproduced under the constitutions of 1791 and 1840 in 
 the Canadas. 
 
CONSTITUTIONS OF THE PROVINCES. 127 
 
 The provmces however remained; two of them closely 
 connected in their past history and very anxious about 
 their old position ; two others not so anxious for a union, 
 but equally tenacious of their former rights and liberties. 
 When the representatives of these four provinces came. to 
 terms concerning the new parliament for all of them, they 
 did not apparently assume that everything would remain 
 as theretofore in the provinces. In that respect the 
 Canadian and United States constitutions differ very 
 materially. In the latter case the individual states, so far 
 as the constitution goes, are to be guaranteed a republican 
 form of government, (h) Eenouneing their right to deal 
 with the powers delegated to the general government they 
 pursued their way as individual states, leaving it to the 
 courts to say whether they and the central governments 
 kept within their respective limits. 
 
 What took place in the Canadian union was very differ- 
 ent from this. The powers were distributed between the 
 general government and the state or provincial govern- 
 ments, with a general reservation to the central govern- 
 ment on all subjects extending over all the provinces, and 
 a corresponding reservation to the local governpaents on 
 all domestic subjects connected with the provinces. Both 
 these governments are liable to a veto in the exercise of 
 their powers, but the provincial legislature is subject to the 
 veto of the dominion government, while the dominion 
 legislation is free from any provincial control except the 
 common one of the courts. The veto, it is true, does not in 
 practice extend to anything beyond the competency of the 
 local legislature to pass any particular statute ; but it is 
 made occasionally in judicial and political language to 
 assume the form of control over provincial affairs. This 
 power and the supplying of an executive officer called a 
 
 (i) Sec. 4, Act IV. 
 
128 GOVERNMENT IN CANADA. 
 
 Lieutenant-Governor, are the two circumstances common 
 to all the provinces and about which the central and local 
 governments are always and necessarily in connection with 
 each other. The Lieutenant-Governor is assumed to be. 
 the chief of each local legislature, but it was only in On- 
 tario and Quebec that his position and duties were expressly 
 defined by the Act. The constitution and executive author- 
 ity in Nova Scotia and New Brunswick were unaffected by 
 the Act and continued as they were before 1867. (c) The 
 same was the case with the constitution of their legisla- 
 tures ; {d) but the duties of their chief executive officers 
 were not set out in detail as was the case in Ontario and 
 Quebec, (e) In all the provinces the provisions as to 
 appropriation and tax bills, the recommendation of money 
 votes, the disallowance of Acts, and the signification of 
 pleasure on bills reserved apply equally and are the same 
 as in the Dominion of Canada with the substitution of one 
 year instead of two years in regard to the disallowance or 
 reservation of bills. Ontario and Quebec were not content 
 with retaining the constitution of their predecessors, as 
 was the case with the other provinces. They had inserted 
 in the Act of Union a number of provisions as to their 
 executive,' the executive council, Lieutenant-Governor in 
 council, the great seal, the executive officers, with their 
 powers and duties, the summoning of their assemblies in 
 the Queen's name, the continuance of existing laws as to 
 elections, etc., the yearly session of their legislatures and a 
 number of details as to a speaker and the mode of voting 
 in the house of assembly. (/) All the provinces have equal 
 
 (c) Sec. 64. 
 
 {d) Sec. 88. 
 
 (e) Sec. 65. 
 
 (/) Sees. 63, 65, 66, 134-6-6 and 69 to 87 both included. For those 
 who contend that the legislatures in Ontario and Quebec are " the heirs 
 at law '' pf the old parliaments of Upper and Lower Canada, there must 
 be something superfluous in these sections. 
 
CONSTITUTIONS OF THE PBOVINCES. 129 
 
 control over their own constitutions, and they can amend 
 them from time to time except as regards the office of 
 Lieutenant-Governor. The estabHshment and tenure of 
 provincial offices and the appointment and payment of 
 provincial officers are also within their exclusive jurisdic- 
 tion, (g) All articles grown, produced or manufac- 
 tured in any one of them are admitted free of duty by all 
 of the others ; (h) their lands and property, as is the 
 case with Canada, are exempt from taxation ; (i) and all 
 laws in force at the time of the union, all courts, legal 
 commissions, powers and authorities and all officers judicial, 
 administrative and ministerial existing at the union con- 
 tinued as if no union had been effected, subject to be 
 repealed, abolished or altered by the proper authority, (j) 
 This is the substance of the various provisions of the 
 B. N. A. Act as regards the provinces. 
 
 If the power of disallowance of provincial legislation is 
 strictly viewed, there is an end to a Canadian federal union. 
 It is essential to a federation, as has been already seen, 
 that each government should be supreme within its own 
 limits, (k) The Dominion government has the power of 
 disallowance of provincial statutes within one year after 
 they are enacted. There is no limitation as to this dis- 
 allowance, except that the Governor-General exercises the 
 right on the responsibility of ministers who are elected to 
 office by the people of the provinces. This power is not so 
 destructive of provincial rights as it might appear from 
 the wording of the 90th section, (l) All legislation in 
 
 (g) See. 92, S.S. 1 and 4. 
 (h) Sec. 121. 
 (i) Sec. 12.5. 
 (j) See. 129. 
 (/t) Ante, page 8. 
 
 (I) Lord Carnarvon stated officially to Lord Dufferiu during the vexed 
 controversy over the New Brunswick School Act : — 
 
 " The constitution of Canada does not contemplate any interferense 
 O'S.G.O. 10 
 
130 GOVEENMENT IN CANADA. 
 
 Canada is subject to disallowance from imperial authorities, 
 and it was thought desirable to allow the responsibility of 
 so grave an act to rest on the people immediately affected, 
 and to be exercised by the local advisers of the crown, who 
 might be expected to be more familiar with the lines of 
 distribution between provincial and Dominion power than 
 are the advisers of the crown in England. In the United 
 States the supreme court is thought sufficient to keep the 
 legislatures within their limits. In Belgium there is not 
 any constitutional cheek, but with us the aggressiveness ot 
 the provinces was subject to a two-fold restraint. However, 
 it could scarcely be expected that a power of disallowance 
 would be held over the larger government and none over 
 the others ; and there was much force in leaving all local 
 questions to be settled by the Canadian people themselves. 
 After a statute of the local legislature h'as been enacted and 
 disallowed for several successive sessions, the subject in 
 dispute, as in the case of the Streams Bill of Ontario, comes 
 before the judicial committee of the privy council in some 
 way, and the limits of jurisdiction are thus defined. There 
 would be less contradiction in the preamble of the Act if 
 the sovereign authority of the Empire was held equally 
 over the two governments, and exercised in exactly the same 
 way. A federal union should secure to its constituent 
 states an absolutely independent sphere of action within 
 their assigned limits ; otherwise there is no federation, (m) 
 
 With the written constitution in a way not quite in pur- 
 suance of the history and intention of it, one may expect 
 to have two very decided and contradictory views in regard 
 to the provinces and the scope of provincial authority. 
 
 with provincial legislation, on a subject within the competence of the 
 local legislature, by the Dominion parliament, or, as a consequence, by 
 Dominion ministers." 
 
 (m) See post as to principles upon which the power of disallowance is 
 exercised. 
 
CONSTITUTIONS OF THE PEOVINCES, 131 
 
 One of these emanates from the strict, literal interpretation 
 of the B. N. A. Act, construed exactly as any other statute 
 is construed, and with steadfast adherence to the principles 
 of the British constitution ; the other is the result of close 
 regard to what is understood by a federal union seen in the 
 light of a relaxed rule of interpretation. If the decisions of 
 the English court of appeal had not overborne, to some ex- 
 tent, certain extreme views of Canadian judges and states- 
 men, the result would have been one party viewing the 
 Canadian union from a federal or central standpoint, and 
 another party regarding the union from a provincial point of 
 view. The advocates of these aids to discovering the 
 meaning of our written constitution, are probably not con- 
 cerned by any decision that conflicts with their own view of 
 it ; but it has become apparent within the last half-dozen 
 years that a strictly legal interpretation is not the one con- 
 genial to the lords of the privy council. On the other band, 
 the idea of a federation is not or was not allowed to have 
 much weight in very many instances with the judges of 
 our own courts. To have a federal union is one thing and 
 not impossible, and the same is, of course, true of a consti- 
 tutional monarchy ; but any attempt to combine both of 
 these in one country can only end in the partial or com- 
 plete extinction of one or the other. It must be understood, 
 both as a historical fact and as the fair reading of the B. 
 N. A. Act, that the Canadian union is, and was intended to 
 be, a federation. It has all the essentials of a federal 
 union. 
 
 The Act of union, however, recites that the federal 
 union shall have a constitution similar in principle to a 
 constitutional monarchy. The difficulty then arises whether 
 the federation is to neutralize the British principles of 
 monarchical government or to be neutralized by them. 
 The view taken in these pages is that in applying the 
 principles of British government,they must be subordinated 
 
132 GOVERNMENT IN CANADA. 
 
 to the federation whenever their application would be fatal 
 to the existence of a federation. This view accords with 
 the historical fact and is not an improper rendering of the 
 words of the statute of 1867 : a federal union with British 
 principles, if possible, but a federal union at all events. 
 
 It is in regard to the provinces that these principles of 
 British government have met with the greatest difficulties 
 and opposition. The early sections of the Act of Union 
 set out with great particularity a parliament for the Dom- 
 inion — the Queen and two houses — a privy council appar- 
 ently for the sole use of the Dominion ; and then follows a 
 very large grant of legislative power, in words very like 
 what were used in preceding constitutions, but with just 
 such a reservation to the provinces as was necessary to the 
 existence of a federation. Except this limit to legislative 
 power all these sections pointed to a reproduction of a 
 government on British principles. There is no difficulty 
 in the central power being as monarchical as needs be. It 
 was copied and moulded on British principles. 
 
 The question virtually arose whether or not this reproduc- 
 tion of a British parliament would not suffice for the 
 provinces as well as for the Dominion, especially as there 
 is very little in the Act to lead one to sujppose that a copy- 
 ing of English forms and procedure was to be carried into 
 every provincial legislature. The provinces, regarding 
 themselves as the factors of the union, were not disposed 
 to be relegated to the unimportant position of municipal 
 councils, and from the beginning they asserted their co- 
 ordinate jurisdiction and the perpetuation of their ancient 
 prerogatives. Looking at the historical side of the case 
 they regarded the central power as one created by them- 
 selves, having such duties and jurisdiction as they thought 
 fit to bestow on it, and reserving to themselves whatever 
 was too important or valuable to be given away. The 
 
CONSTITUTIONS OF THE PROVINCES. 133 
 
 central authorities, on the other hand, point to the statute 
 and the unity in the principles of British government, and 
 they say, " We have the sole parliament, you have no 
 parliament ; our executive is the Queen, the Queen is no 
 part of your constitution, you are no longer colonies of the 
 empire, you are our provinces, and the imperial govern- 
 ment or the Queen will not notice you except through us ; 
 you are only the provinces of a colony ; we have the power 
 to disallow your Acts ; we provide you with Lieutenant- 
 Governors and you have no control over us except through 
 appeal to the paramount law of the constitution. " 
 
 It is not easy to define, in a few words, the exact position 
 of the provinces comprising the Dominion of Canada. The 
 strictly legal view of the Act of Union is that in 1867 three 
 existing provinces desired to be federally united into one 
 Dominion ; and they were so united, and formed thereafter 
 Canada. The throe provinces merged their existence in 
 Canada. They were then lost sight of, and in their stead 
 Canada appeared, and was immediately afterwards divided 
 up into four provinces, with the power of legislating on 
 certain limited subjects under the supervision of the par- 
 liament of Canada. The late province of Canada, with 
 Nova Scotia and New Brunswick, voluntarily terminated 
 its existence as a distinct portion of the British possessions 
 or colonies. They were to be thereafter known under a 
 new name collectively, and with a new constitution. Had 
 the new political division one legislature only for all 
 purposes, there would be little difficulty in defining the new 
 situation. But the duty of legislating for all parts of the 
 new Dominion was deemed by the framers of its constitu- 
 tion so great that one central parliament could not satis- 
 factorily accomplish that task. Accordingly, in almost the 
 very next section of the Act of 1867 uniting the three 
 provinces into Canada, it is declared that Canada shall be 
 
134 GOVBENMENT IN CANADA. 
 
 divided into four provinces, with territorial areas the same 
 as they had been prior to the union, with exclusive but 
 curtailed powers of legislation, and with their chief execu- 
 tive officers provided by and representing the government 
 of Canada. The Act of Union divided the Canadas as they 
 were before 1840, and the old provinces retained their 
 geographical boundaries. They were merged in the 
 Dominion, and then re-created and given another set of 
 names — Ontario, Quebec, Nova Scotia and New Brunswick. 
 
 Those who contend for a strict interpretation, insist that 
 there is a great difference between the present and past 
 position of these provinces. Formerly they were colonies 
 of the empire, -and possessed governors or lieutenant- 
 governors, who were the immediate representatives of the 
 crown in their provinces. Now their chief executive officers 
 are members of the colonial administration staff, and are 
 but lieutenants of the Governor-General of Canada : the 
 provinces are no longer colonies, but provinces of a colony. 
 Under the former constitution they had, subject to imperial 
 authority, the right to make laws for the peace, order and 
 good government of their provinces ; now their legislative 
 power is limited to a prescribed set of subjects ; and though 
 they may be supreme within these constitutional limits, the 
 imperial authority has entrusted to the government of 
 Canada the control of keeping them within such limits. 
 Whether wisely or foolishly, the provinces have surrendered 
 a large portion of their rights to the determination of the 
 federal government at Ottawa. Any attempted assumption 
 of authority beyond the rights retained by the provinces, 
 if not vetoed by the Governor-General, is liable to be 
 declared unconstitutional by the provincial or by the 
 Dominion courts. 
 
 Again, it is said that the lieutenant-governors, being 
 deputies of the Governor-General, and not of the Queen, 
 
CONSTITUTIONS OF THE PEOVINCBS. 135 
 
 have no power to give the Queen's sanction to any Act of 
 the legislature. They assent on behalf of the Governor- 
 General, {n) They have not the power to do so under the 
 written constitution ; and there is certainly something 
 anomalous in the case of the Governor-General, the Queen's 
 deputy, disallowing an Act passed in the provincial legis- 
 lature by the Queen's Most Excellent Majesty. An objec- 
 tion was formerly raised in the American colonies in the 
 corresponding case of a Governor-General who was unques- 
 tionably the royal representative, but it vIsls over-ruled. 
 On the matter being referred to England an opinion was 
 given in these words : — 
 
 " I have heard objections drawn from the style of this 
 Act. ' It is enacted by the King's Most Excellent Majesty,' 
 etc., but I think this objection of little weight. The King 
 is here named in his royal and politic capacity, which, at 
 the time of making the Act, was to this purpose residing in 
 his Governor, who there enjoyed and exercised the func- 
 tions of it in this province, and the personal assent was 
 not necessary to the Act." (o) 
 
 " The Queen," says Mr. Justice Gwynne, " forms no part 
 of the provincial legislatures, as she does of the Dominion 
 parliament. * * The use of her Majesty's name by these 
 provincial authorities is by the Act confined to the sum- 
 moning and calling together the legislatures ; and, singular 
 as it seems, this is by the 82nd section, rather by accident, 
 I apprehend^ than design, confined to the Lieutenant- 
 Governors of Ontario and Quebec." (p) 
 
 " By the 91st section it is declared that the Acts of the 
 Dominion parliament shall be made by the Queen, by and 
 
 (n) Per Draper, C J., in re Goodhue, 19 Grant, 
 (o) Chalmer'a Opinions. 
 
 (p) The case of Lenoir v. Ritchie, decided at Ottawa in 1879, contains 
 some strong views on these points. 
 
136 GOVERNMENT IN CANADA. 
 
 with the advice of the senate and commons, treating the 
 Queen herself as an integral part of the parliament ; whilst 
 the 92nd section enacts that the "Legislatures " of the 
 respective provinces, that is, the Lieutenant-Governor and 
 the legislative assembly in provinces having but one house, 
 and the Lieutenant-Governor and the legislative council 
 and assembly in provinces having two houses, shall make 
 laws in relation to matters coming within certain enumer- 
 ated classes of subjects, to which their jurisdiction is 
 limited. Nothing can be plainer, as it seems to me, than 
 that the several provinces are subordinate to the Dominion 
 government ; and that the Queen is no party to the laws 
 made by those local legislatures, and that no Act of any 
 such legislatures can in any manner impair or affect Her 
 Majesty's right to the exclusive exercise of all her prero- 
 gative powers, which she continues to enjoy untrammeled^ 
 except in so far as we are obliged to hold that, by the ex- 
 press terms of the British North American Act, or by 
 irresistible inference from what is there expressed, she has 
 by that Act consented to be divested of any part of such 
 prerogative." (q) 
 
 The foregoing will give an idea of the case from a federal 
 point of view ; the provinces, however, have not allowed 
 their ease to go by default. They maintain that the Act 
 of Union was passed at the request of the provinces and 
 that so far as the provinces are concerned, whatever has 
 not been expressly delegated to the Dominion has been re- 
 served to themselves. Whatever the provinces had under 
 former constitutions they shall have unless it can be 
 pointed out in the Confederation Act as taken away from 
 them. The old constitutional Acts were not repealed. As 
 to land and property, everything has been retained except 
 what is contained in the sections and schedules of the Act. 
 
 (q) Lenoir v. Ritchie, 3 S. C. Can. 634. 
 
CONSTITUTIONS OF THE PBOVINOES. 137 
 
 It is decided that escheated land falls to the provinces, and 
 an appeal is now pending from the decision of five eminent 
 judges in Ontario, who hold that Indian lands belong to 
 the provinces. The provinces retained the administration 
 of justice, civil rights, the municipal system, the constitu- 
 tion of the courts and everything of a local and private 
 nature. The scope of the legislative work assigned to the 
 provinces is relatively of greater importance to the people 
 than is the work allotted to the Dominion. Their powers 
 are derived from the same source and are on the same plane 
 — the. Queen disallowing directly or secondarily dominion 
 or provincial laws. Whatever the Dominion is, the pro- 
 vinces have made her such, and they could unmake her by 
 the same process. If they withdraw their support and 
 adhesion the structure falls to the ground. 
 
 A recurrence to the history of events leading up to con- 
 federation is not generally allowable in the legal construc- 
 tion of the statute. The intention is to be gathered from 
 the words of the Act. 
 
 But the British statesmen and judges are disposed to 
 regard the Act of Union as a compact — a treaty — and to 
 adopt a rule of interpretation in the light of preceding 
 events. That is favorable to the provincial view. The 
 strict rendering of the B. N. A. Act, in regard to the execu- 
 tive, is somewhat shaken by the decision in the Mercer 
 escheat case, decided since Lenoir v. Ritchie, and the ten- 
 dency of the courts has been rather in favour of the 
 provincial view of the question. 
 
 The late chief justice of the supreme court. Sir William 
 Johnston Eitchie, says (r) : "When it is claimed that a 
 Lieutenant-Governor and council are not competent to deal 
 with a matter, or to do an executive administrative Act 
 
 (r) Mercer v. The Attorney -General of Ontario, 5 S. C, 637. 
 
138 GOVERNMENT IN CANADA. 
 
 that was within their competency before confederation, the 
 burthen is cast on those putting forward such a claim to 
 show clearly from the B.N. A. Act that by express language 
 or by necessary implication the local governments have 
 been deprived of that authority, and the power has been 
 placed in the executive authority of the Dominion. To say 
 that the Lieutenant-Governors because appointed by the 
 Governor-General do not in any sense represent the Queen 
 in the government of these provinces is, in my opinion, 
 a fallacy ; they represent the Queen as Lieutenant- 
 Governors did before confederation, in the performance of 
 all executive or administrative Acts now left to be performed 
 by Lieutenant-Governors in the provinces, in the name of 
 the Queen. " 
 
 The same learned judge says : " Special pains appear to 
 me to have been taken to preserve the autonomy of the 
 provinces so far as it could be consistently, with a federal 
 union. " 
 
ftOVEENMENT IN CANADA. 139 
 
 CHAPTEE Xlir. 
 
 THE PBOVINCIAL LEGISLATURES. 
 
 Lieutenant-Governors, in Ontario and Quebec, in other 
 provinces — Former governors — Powers, dismissal, opin- 
 ions of Earl Kimberley, of Sir John Macdonald, Mr. 
 Justice Gwynne — Legislative assemblies, }irocedure, — 
 Extent of disallowance, Mr. Lash's memorandum. 
 
 The provincial legislatures are not framed on any uni- 
 form plan. The Dominion government supplies the execu- 
 tive officer — the Lieutenant-Governor — and the provinces by 
 virtue of the Act of union provide the house or houses of 
 assembly. In Ontario the legislature consists of the 
 Lieutenant-Governor and one house — a legislative as- 
 embly. (a) In Quebec there are two houses — a legislative 
 council as well as an assembly, — and the Lieutenant-Gover- 
 nor is also part of their legislature by the Act. (6) In Nova 
 Scotia and New Brunswick the legislatures were allowed to 
 continue as before the union, subject to the provisions of 
 it. So far as the constitution of these legislatures is con- 
 cerned, they were affected to the extent of having a Lieu- 
 tenant-Governor sent them by the Dominion and not by 
 the imperial government. The Act defines nothing as to 
 their powers, authorities and functions beyond the recom- 
 mendation as to money votes, and provisions as to assent, 
 disallowance and reservation of bills, which are the same 
 as the provisions for the other Lieutenant-Governors. 
 
 (a) Sec. 69. 
 
 (b) Sec. 65. 
 
140 GOVERNMENT IN CANADA. 
 
 The provision of the Act as to the Lieutenant-Governor 
 in council means " acting by and with the advice of the 
 executive council " of the province, (c) but this is the only 
 section in the Act that applies generally to all the lieuten- 
 ant-governors except some unimportant provisions as to 
 the oath, and tenure of office, salary, administration, etc. (d) 
 
 In Ontario and Quebec the case is different. By the 
 65th Sec. 
 
 " All powers, authorities, and functions which under any 
 Act of the parliament of Great Britain, or of the parlia- 
 ment of the United Kingdom of Great Britain and Ireland, 
 or of the legislature of Upper Canada, Lower Canada or 
 Canada, were or are before or at the union vested in or 
 exerciseable by the respective governors or lieutenant- 
 governors oi those provinces, with the advice and consent, 
 of the respective executive councils thereof, or in conjunc- 
 tion with those councils, or with any number of members 
 thereof, or by those governors or lieutenant-governors in- 
 dividually, shall, as far as the same are capable of being 
 exercised after the union in relation to the government of 
 Ontario and Quebec respectively, be vested in and shall or 
 may be exercised by the Lieutenant-Governor of Ontario 
 and Quebec respectively, with the advice or with the advice 
 and consent of or in conjunction with the respective 
 executive councils, or any members thereof, or by the 
 Lieutenant-Governor individually, as the case requires, 
 subject nevertheless (except with respect to such as exist 
 under Acts of the parliament of Great Britain, or the par- 
 liament of the United Kingdom of Great Britain and Ireland) 
 to be abolished or altered by the respective legislatures of 
 Ontario and Quebec." 
 
 Bearing in mind the differences in the powers of the 
 chief executive officers in Ontario and Quebec from those 
 in the other provinces in the union, the mode of appoint- 
 
 (c) Seo. 6 6. 
 
 (d) Sec3. .59 to 62. 
 
THE PROVINCIAL LEGISLATURES. 141 
 
 ment and other particulars which are common to all may 
 be enquired into. 
 
 The Governor in council appoints a Lieutenant-Governor 
 for each province, by instrument under the great seal of 
 Canada. 
 
 Under the federal system of government the chief execu- 
 tive officers in the province are now members of the civil 
 service of Canada, and not as formerly, members of the 
 civil service of England. They are neither appointed nor 
 removed by the crown, but by the Governor-General of 
 Canada : they are local not imperial officers. The Lieu- 
 tenant-Governor .is head of the legislature, or rather the 
 legislature is composed of a Lieutenant-Governor and a 
 house of assembly, either with or without a legislative 
 council. He is essential to the legislature, and is chief of 
 the executive in the provinces. His assent to all bills in 
 behalf of the Governor-General is necessary before they 
 become law ; and he has a negative voice, probably the 
 same as the crown, in all legislative Acts. 
 
 In 1875 the secretary of state for the colonies wrote : 
 
 " The Lieutenant-Governors of the provinces of the 
 Dominion, however important locally their functions may 
 be, are a part of the colonial administration staff, and are 
 more immediately responsible to the Governor-General in 
 council. They do not hold commissions from the crown ; 
 and neither in power nor privilege resemble these governors 
 of colonies, to whom, after special consideration of their 
 fitness, the Queen under the great seal and her own hand 
 and signet delegates portions of her prerogatives, and issue 
 her own instructions." 
 
 Sir John A. Macdonald, in his report as to marriage 
 licenses in 1869, speaking of Lieutenant-Governors, says : 
 
 " They do not hold their appointment directly from the 
 Queen, but are appointed by the Governor General in 
 
142 GOVEKNMENT IN CANADA. 
 
 council pursuant to the 58th section of the Act. Their 
 powers are simply those conferred on them by statute, and 
 they have no right to deal with matters of prerogative as 
 representatives of the sovereign." 
 
 The effect of Earl Kimberley's reply to the Dominion 
 government in the Queen's Counsel case, 1872, would indi- 
 cate that the powers of a Lieutenant-Governor since 1867 
 are not so great as they were formerly. He says : 
 
 " The Governor-General has now power as her Majesty's 
 representative to appoint Queen's counsel, but a Lieutenant- 
 Governor appointed since the union came into effect (1867) 
 has no such power of appointment." (c) 
 
 A Lieutenant-Governor holds office during the pleasure of 
 the Governor- General ; but the usual length of his term of 
 office is five years. (/) He cannot be removed within that 
 period without cause assigned. This cause is to be com- 
 municated to him in writing within one month after the 
 order for his removal is made ; and shall be communicated 
 by message to the senate and to the house of commons 
 within one week thereafter, if the parliament is then sitting ; 
 and if not, then within one week after the commencement 
 of the next session of the Parliament, (g) The senate and 
 commons must be the judges as to sufficiency of the cause 
 alleged. It appears that it is sufficient for the ministry at 
 Ottawa that parliament has passed a censure on his con- 
 
 (e) The English law officers of the orown were of opinion in this case 
 that the legislature of a province can confer by statute on its Ijieutenant- 
 Governor the power of appointing Queen's counsel. In Lenoir v. Ritchie, 
 in the Supreme Court, Mr. Justice Gwynne uses this language in refer- 
 ence to the position of a Lieutenant-Governor : " The head of their execu- 
 tive government is not an officer appointed by Her Majesty, or holding 
 any commission from her, or in any manner personally representing her, 
 but an officer of the Dominion government appointed by the Governor- 
 General under the advice of a council, which the Act constitutes the 
 privy council of the Dominion." 
 
 (/) Sec. 59. 
 
 (fj) Sec. 59. 
 
THE PEOVINCIAL LEGISLATURES. 143 
 
 duct. Whenever it is felt by the Dominion government 
 that it is for the public interest that a Lieutenant-Governor 
 should be displaced, then he is and ought to be removable. 
 He has no vested right to his of&ce for the full term ; nor 
 does he hold office for the full term ; nor does he hold office 
 during good behavior, like our judges, (h) He is answer- 
 able to the Governor in council, just the same as that 
 officer is answerable to the imperial government ; and the 
 administration of the day must take the responsibility of 
 his removal precisely the same as of any other adminis- 
 trative act. The cause may be insufficient or unreasonable ; 
 but when the cause is assigned for his removal, and the 
 parliament expresses itself thereon, the constitutional 
 powers of the Governor-General to dismiss the Lieutenant- 
 Governor of a province cannot be questioned. 
 
 The legislatures are composed of one or two houses, as 
 the different provinces may think desirable. In Nova 
 Scotia and New Brunswick they were to remain as before 
 confederation ; while many particulars are mentioned in 
 the Act in reference to the constitutions of Ontario and 
 Quebec. A single house in Ontario, with 82 members, is 
 provided by the 69th and 70th sections of the Act. Two 
 houses were assigned to Quebec, with 65 members in the 
 elective assembly and 24 legislative councillors, (i) the 
 latter to have the same qualifications as the senators 
 of the province of Quebec, and like them to hold office 
 for life. The legislative assembly is called together in 
 the Queen's name by instrument under the great' seal 
 of the province. The limit set for each assembly was 
 four years, and a yearly session, as is required by the 
 parliament of Canada, is necessary in the case of these 
 provinces. A special provision as to the first elections 
 
 (h) Sir John A. Maodonald's memorandum to the Governor-General 
 in the Letellier case. 
 (i) Sec. 71 to 81. 
 
144 GOVERNMENT IN CANADA. 
 
 (extending also to Nova Scotia) provided for the first 
 summoning after the union, and the provincial capitals 
 or seats of government are given in an early section, (j) 
 These are Toronto for Ontario, Quebec for Quebec, Halifax 
 for Nova Scotia, and Frederictcn for New Brunswick. 
 
 The procedure in provincial legislation is almost as intri- 
 cate and elaborate as in the parliament at Ottawa. In 
 those provinces which have no legislative council, the bills 
 have of course to pass through the usual stages in one 
 house only. The provisions relating to the election of a 
 speaker originally, and on vacancies, to the duties of the 
 speaker, the absence of the speaker, the quorum, and the 
 manner of voting, are the same in the Ontario and Quebec 
 legislatures as in the Canadian house of commons. 
 
 The provisions in the Act relating to appropriations and 
 tax bills, the recommendation of money votes, the assent, 
 allowance and reservation of bills, apply to all the provinces 
 substituting the Lieutenant-Governor for Governor-General, 
 and the Governor-General for the Queen. The Lieutenant- 
 Governors, on a bill being presented to them, shall, accord- 
 ing to their discretion, but subject to the provisions of the 
 Act, declare that they assent thereto in the Governor-Gene- 
 ral's name, or that they withhold the Governor- General's 
 assent, or that they reserve the bill for the signification of 
 the Governor-General's pleasure, {k) 
 
 A bill reserved by the Lieutenant-Governor for the signi- 
 fication of the pleasure of the Governor-General in council 
 shall not have any force unless and until, within one year 
 from the day on which it was presented to the Lieutenant- 
 Governor for the assent of the Governor-General, the 
 Lieutenant-Governor signifies by speech or message to the 
 house or houses of his legislature, or by proclamation, that 
 
 (j) Sec. 68. (k) Sec. 87. 
 
THE PROVINCIAL LEGISLATUEES. 145 
 
 it has received the assent of the Governor-General in 
 council. Bills assented to by the Lieutenant-Governor may 
 be annulled by the Governor-General in council within one 
 year after an authentic copy of the Act has been sent to 
 him. 
 
 The Governor in council in the Dominion parliament is 
 said on very high authority to have the same controlling 
 power over the provincial legislatures that the imperial 
 parliament has over the Dominion. The extent of provin- 
 cial subordination, however, is not to be misunderstood. 
 Both the provinces and the Dominion have their own de- 
 fined, ascertained limits ; and so long as they keep within 
 these they can constitutionally enact what laws they please 
 without reference to each other. The power of disallowing 
 provincial Acts rests with the central and not with the im- 
 perial government, as in the case of disallowing Dominion 
 Acts ; but this will always be considered a harsh exercise 
 of power unless in cases of great and manifest necessity, or 
 where the Act is so clearly beyond the powers of the local 
 legislatures that the propriety of interfering would at once 
 be recognized. (Z) It will always be very difficult for the 
 federal government to substitute its opinions instead of that 
 of the legislative assemblies in regard to matters within 
 their provinces without exposing itself to be reproached with 
 threatening the independence of the provinces, (m) 
 
 Mr. Lash, Q.C, late deputy of the minister of justice, 
 prepared a memorandum on the subject of disallowance in 
 which, after shewing the very small number of cases in 
 which it was exercised and how reluctantly it was done, he 
 stated that it was the practice, before taking such an ex- 
 treme course with respect to any Act, to call the attention 
 of the provincial government to its objectionable features, 
 
 (l) Per C. J.Kiohurds, in Severn v. the Queen 2 S. C. Reports 96. 
 (m) Severn v. the Queen, 2 S. C. Reports 70.. 
 
 O'S.G.C. 11 
 
146 GOVERNMENT IN CANADA. 
 
 and give them an opportunity of promoting its repeal or 
 amendment. Occasionally however, from the very nature 
 of the Act itself or from the shortness of time for disallow- 
 ance, it has been thought necessary to disallow it without 
 waiting for its repeal ... If any Act be in its main 
 features, clearly beyond the powers of the provincial legis- 
 lature, it would seem to be the duty of the Dominion 
 authorities to disallow it, unless within a limited time, it 
 be repealed or so amended as to remove these objectionable 
 features. 
 
 It is often very doubtful whether an Act be within or 
 beyond the powers of a provincial legislature ; and very 
 often Acts, which in their main provisions, are clearly valid, 
 contain some provision beyond the competence of the legis- 
 lature. Moreover in the character of the enactments 
 which may be beyond the powers of the local body, there is 
 often a vast difference. Though all such provisions are 
 alike void, some of them may without inconvenience be 
 passed over without interference by the Dominion govern- 
 ment, while to take the same course as to others might 
 produce serious embarrassment and confusion. , It is there- 
 fore in each particular ■ case a question to be decided, 
 whether an Act though containing some void provisions, 
 should be disallowed or left to its operation. 
 
 In deciding as to the disallowance of an Act, the govern- 
 ment is not confined to considering its validity in a legal 
 point of view. The power of disallowance is a general one ; 
 and in arriving at a conclusion as to its exercise, the gov- 
 ernment has 'undoubtedly the right to take into consider- 
 ation other matters than those affecting merely the validity 
 of the Act. For instance, they may and should consider 
 whether it affects imperial or Dominion interests. The 
 same principles (among others) would apply in deciding as 
 to giving or withholding assent to a reserved bill. . . . 
 
GOVERNMENT IN CANADA. 147 
 
 CHAPTER XIV. 
 
 THE PROVINCES ONTARIO. 
 
 Legislature, how composed, one house, members' qualifications 
 -^Speaker, quorum, procedure — Executive council, depart- 
 ments — Attorney-General — Provincial secretary — Pro- 
 vincial treasurer, agriculture — Commissioner of crown 
 lands — Commissioner of public works — Minister of edu- 
 cation. 
 
 The Lieutenant-Governor and the legislative assembly 
 of Ontario form the legislature of this province. 
 
 The Lieutenant-Governor is appointed by the Governor- 
 General in council, and holds office for five years, unless 
 sooner removed for cause assigned. He is the chief officer 
 of the executive in the provinces and the head of the 
 legislature. The provincial legislature has no power over 
 him or his office, although he acts only upon its advice. 
 He is a corporation sole, and may appoint a deputy for 
 certain purposes, such as executing marriage licenses, 
 money warrants, and commissions under any provincial 
 statute. As advised by the executive courleil of the province, 
 he nominates such proper persons, in number not exceeding 
 six, to the departmental offices. In his absence, illness, 
 or other inability, the Governor-General may appoint an 
 administrator to execute his office and functions. Acting 
 on the advice of the executive, he summons and calls together 
 the legislature in the Queen's name, and may dissolve the 
 same within the four years of its duration. 
 
 The assembly is now composed of ninety members ; 
 and for the purposes of representation the province is 
 
148 GOVERNMENT IN CANADA. 
 
 divided up into eighty-eight electoral districts or ridings, 
 Toronto returning three members from one district. 
 These do not correspond to the electoral districts in Ontario 
 which send members of parliament to the house of com- 
 mons at Ottawa; and, again, neither of these divisions 
 corresponds with the division of the province into counties 
 for municipal or judicial purposes. Every county is a 
 county for municipal purposes (to be noticed hereafter), 
 and sends at least one member to the local and federal 
 house, while sometimes two or more counties are united for 
 judicial purposes. 
 
 Members of the local legislature require no real property 
 qualification, and are elected for four years. No senator, 
 privy councillor of the Dominion who is a member of the 
 commons, nor any member of the commons, can hold a seat 
 in this house ; no person accepting or holding any office, 
 commission or employment under the crown by provincial 
 or dominion appointment, and to which office any salary 
 or fee, allowtoce, or emolument in lieu of salary, is attach- 
 ed, can be a member — except those members of the execu- 
 tive office who are the members of the government of the 
 province ; and with these exceptions, no person accepting 
 or holding such office, commission or employment of profit 
 whether under provincial or dominion appointment, or 
 under any head of a department in the provincial govern- 
 ment, is eligible, no matter whether such profit be payable 
 or not out of the public funds. 
 
 But any army, navy or militia officers (except militia 
 staff officers receiving permanent salaries), and any justice 
 of the peace, and any notary public, may, unless otherwise 
 disqualified, be members of the legislative assembly. No 
 public contractor is eligible to sit or vote in the house ; 
 and any disqualified person who does so shall forfeit the 
 sum of |2,000 per day for so doing. 
 
THE PROVINCES ONTARIO. 149 
 
 The house meets every year at Toronto, and is presided 
 over by a speaker appointed by the members. Not more 
 than twelve months must intervene between the last 
 sitting in one session and the first sitting in the next 
 session. (86th sec. B. N. A. Act.) 
 
 Twenty members in the house are the smallest number 
 capable of transacting business or forming a quorum. The 
 speaker may be one of the number. The conduct of busi- 
 ness, the rules of debate, the regulation and management 
 of the house, questions of proceedings, etc. are regulated by 
 the house ; and in all unprovided cpses the rules, usages 
 and forms of the house of commons in England are followed. 
 The provisions relating to the election of speaker, the' 
 absence of the speaker, quorum, and mode of voting, are 
 the same in the provincial legislature of Ontario as in the 
 house of commons for Canada. (87th sec.) 
 
 The house is not organized till the speaker is chosen ; 
 and there is no vacancy in the office till such choice has 
 been made and the office has been filled. In the first meet- 
 ing of the assembly after a general election the speaker is 
 elected. Before the election of speaker the clerk of the 
 house is substituted for the speaker, but the clerk has no 
 casting vote in case of an equality of votes for speaker. No 
 one can vote in the election of speaker but a member of 
 the assembly. In case the house were equally divided in 
 the election of a speaker, no one would be appointed, (a) 
 
 The procedure as to bills, orders, etc., is as nearly simi- 
 lar to that in the house of commons as can be. A bill here 
 has to pass through the same' stages, though only through 
 one assembly, there being no upper house or legislative coun- 
 cil in this province. The Lieutenant-Governor then may 
 assent to a bill, or dissent from it, or reserve it for the con- 
 
 (a) Opinion of the late Hon. J. H. Cameron. 
 
150 GOVERNMENT IN CANADA. 
 
 sideration of the Governor-General, as has been already- 
 explained. He recommends all money votes, opens, pro- 
 rogues, and dissolves the house, issues orders in council, 
 proclamations, etc. (90th sec.) 
 
 The executive council of Ontario is composed of six 
 members, who are appointed under the great seal of the 
 province, and hold office during pleasure. The ministers 
 have charge of the following offices, some one member al- 
 ways taking two departments, (b) 
 
 1. Attorney-General for the province. 
 
 2. A secretary and registrar of the province. 
 
 3. A treasurer of the province. 
 
 4. A commissioner of crown lands. 
 
 5. A commissioner of agriculture. 
 
 6. A commissioner of public works. 
 
 7. A minister of education. 
 
 Any of the powers and duties assigned by law to any of 
 the officers constituting the executive council may, by order 
 of the Lieutenant-Governor in council, be transferred to 
 any of the other officers, by name or otherwise. No member 
 of this council can sit or vote as a member of the commons 
 of Canada without forfeiting his office as councillor. 
 
 The executive councillors are the administration or 
 ministry of the province — the provincial privy council so 
 to speak — and they form the government of the day. They 
 must have the support of a majority in the legislative 
 assembly. They hold office during pleasure of both the 
 Lieiitenant-Governor and the assembly ; but the choice of 
 the assembly is the choice of the Lieutenant-Governor. 
 
 (6) By Sec. 134 of the B. N. A. Act the number was placed at five with 
 power to add others. By the following section all the " rights, powers, 
 functions, responsibilities, or authorities " as vested in such offices before 
 confederation, passed to the provincial executive councillors so far 
 as these duties, etc., were not repugnant to the Act. 
 
THE PEOVINCES^ONTAEIO. 15l 
 
 He has the undoubted right to dissolve the house and to 
 dismiss ministers having a majority of the members at 
 their back ; but he does that always at great risk to him- 
 self, and probably with serious results to his province. 
 The procedure and line of conduce of the Ibcal legislatures 
 has been copied so diligently from the parliaments of 
 Canada and Great Britain, that in case a Lieutenant-Gov- 
 ernor follows the analogous power of the crown in these 
 places, he will content himself to follow the advice of his 
 responsible ministers rather than attempt to find ministers 
 supporting his own opinions. He has in fact no opinions. 
 The ministers are the choice of the provincial members 
 and answerable to the people — he is neither answerable to 
 the province nor its choice. If it be a question who is to 
 rule on any. occasion, the people affected have no right to 
 complain if the determination of it is left in the hands of 
 their own representatives. 
 
 Assuming, therefore, that the provincial government is 
 carried on by its executive under the advice of an executive 
 council, the principles in regard to a change of government, 
 the responsibility of the ministry, its relations to the execu- 
 tive and to the assembly, and all other matters peculiar 
 to a privy or executive council apply equally in the provin- 
 cial as well as in the dominion government. Laws are 
 enacted and enforced. Except as otherwise provided by the 
 Act, all laws in force in the late province of Canada, all 
 courts of civil and criminal jurisdiction, and all legal com- 
 missions, powers and authorities, and all of&cers, judicial, 
 administrative and ministerial, continue in Ontario, as well 
 as in the other provinces, as if the union had not been 
 made, subject to imperial legislation, to be repealed, 
 abolished or altered by the parliament of Canada, or the 
 legislature of the province, according as either one possesses 
 the power, (c) 
 
 (c) Sec. 129. 
 
152 GOVEENMENT IN CANADA. 
 
 DEPARTMENTAL ADMINISTRATION AT TORONTO. 
 
 The following are the departments in Ontario and a 
 summary of the work done in them. 
 
 ATTORNEY-GENERal's DEPARTMENT. 
 
 There are no statutory regulations as to the duties of 
 the attorney-general of Ontario, or the work performed in 
 his office or department. 
 
 He is the legal adviser of the crown, and of the execu- 
 tive council or ministry, and also of the departments of the 
 ex,ecutive government of the province ; and all legislation 
 for the province is conducted in his name and under his 
 responsibility. He makes all appointments connected with 
 the administration of justice, such as police and stipen- 
 diary magistrates, justices of the peace, county attorneys, 
 sheriffs, and other officers of the courts, and he advises 
 them in all matters of such administration. Hence he has 
 to deal with cases of bail and its forfeiture, the discharge 
 of prisoners on a habeas corpus, or the quashing of convic- 
 tions. He considers applications for writs of error, for 
 leave to file petitions of right, to file informations, to allow 
 criminals as Queen's evidence, and other matters in con- 
 nection with the administration of public justice. He is the 
 proper person to complain of the violation of public rights. 
 
 He appears on behalf of the crown in civil and criminal 
 eases ; and he is the proper officer to enforce criminal laws 
 by prosecution in the Queen's name in courts of justice in 
 the province. The attorney-general of this province is the 
 officer of the crown who must be considered to be present 
 in the courts of the province to assert the rights of the 
 crown and those who are under its protection, (d) 
 
 (d) Mr. Justice Strong (as Vice-Cliancellor) in Attorney -General v. 
 Niagara h'alh Bridge Company, 20 Chy. 34. 
 
THE PROVINCES' — ONTARIO. 153 
 
 His duties are somewhat analogous to those of the 
 minister of justice at Ottawa ; and he has all the rights, 
 powers, duties, functions, responsibilities and authorities 
 which, up to 1867, were vested in or imposed on the 
 attorney-general or solicitor-general of the province of 
 Canada by virtue of any law, statute, or ordnance of Upper 
 Canada or Canada, and not repugnant to the Confederation 
 Act of that year. This also applies to the other executive 
 officers in regard to their respective departments, as men- 
 tioned hereafter, both in Ontario and Quebec. 
 
 2. THE SECRETARY AND REGISTRAR OF THE PROVINCE OF 
 
 ONTARIO. 
 
 This office is under the control of the provincial secre- 
 tary, but no express statute has constituted it a depart- 
 ment, (e) 
 
 Eeports on the asylums, prisons and public charities of 
 the province are returned to this department every year ; 
 reports on the common gaols, prisons and reformatories ; 
 the Ontario institution for the education and instruction of 
 the deaf and dumb, at Belleville, and a similar institution 
 at Brantford for the blind ; the hospitals of Ontario ; 
 houses of refuge, orphan and magdalene asylums ; also 
 reports relating to tavern and shop licenses. 
 
 The inspector of division courts reports to this depart- 
 ment, and it is the provincial department of immigration. 
 
 The bonds and securities required to be given by public 
 officers are registered in the registrar's department, and 
 returns made also in regard to them. The other matters 
 upon which returns are made are the, following : 
 
 (e) Sees. 134 and 135 continue the of&ce which succeeds to that of the 
 secretary and registrar of the province of Canada. 
 
164 GOVERNMENT IN CANADA. 
 
 The state of the fee fund, the expenses of the adminis- 
 tration of justice, the number of marriages, births and 
 deaths, copies of all returns from the clerks of the various 
 municipalities as to the population, real property, assess- 
 ments, income and expenditure, liabilities, assets and pro- 
 perty of their respective corporations. A statement of the 
 indebtedness of each municipal corporation at the close of 
 each year is made to the Lieutenant-Governor through the 
 provincial secretary ; and a return also made to him from 
 the sworn returns of the clerks of each municipality of the 
 number of resident ratepayers of the different counties and 
 cities, and such towns as are separated from counties. 
 
 Commissions under the great and privy seals are pre- 
 pared and issued by this department ; warrants for the 
 removal to the asylums from the county gaols of persons 
 found insane and dangerous ; appointments to office 
 gazetted ; proclamations, letters patent, notarial certifi- 
 cates, commissions and marriage licenses issued ; and 
 returns of patented lands made to the different county 
 registrars of the province. 
 
 3; THE PROVINCIAL TREASURER'S DEPARTMENT. (/) 
 
 All public moneys, from whatever source of revenue 
 derived, and all moneys forming part of special funds 
 administered by the provincial government, are paid in to 
 the credit of the provincial treasurer. These revenues form 
 what is called the consolidated revenue fund of Ontario ; 
 and it is on the strength of the supplies of this fund that 
 the Lieutenant-Governor in council can invest in Dominion 
 securities or debentures whenever any surplus is not re- 
 quired for the public use of the province. 
 
 (/) This office is continued by the 134 and 135 sections of the Act 
 suooeedin}^ apparently to the minister of finance of the former govern- 
 ment of Canada. 
 
THE PROVINCES — ONTARIO. 155 
 
 The treasurer of the province lays every year before the 
 house a financial statement as to the assets and liabilities 
 of the province. He reports to the Lieutenant-Governor 
 from the sworn returns of the clerk of each municipality 
 / (except county clerks) as to the number of resident rate- 
 payers and their indebtedness to the municipal loan fund. 
 He also reports as to the taxable property and the resources 
 ' and liabilities of each municipal corporation. 
 
 The executive government has charge of all fees and 
 charges Under the Aijt relating to law stamps ; and the pro- 
 vincial treasurer procures the necessary stamps under the 
 Act, keeps an account of all stamps, sells the same, and 
 allows or may allow a commission of five per cent, to those 
 taking more than five dollars' worth. 
 
 The treasurer has also certain statutory duties in refer- 
 ence to the land tax in Algoma. 
 
 The moneys arising from the clergy reserves form a 
 separate fund called "The Ontario Municipalities' Fund;" 
 and are paid into the provincial treasurer's office, and paid 
 out by him under orders in council, or under the Act re- 
 specting clergy reserves, to the different municipalities in 
 Ontario, in proportion to their resident rate-payers, pur- 
 suant to the returns already referred to.^ 
 
 The provincial board of health is a branch of this 
 department, as is also the department of agriculture and 
 arts. 
 
 5. THE DEPARTMENT OF AGEICULTUEE. (g) 
 
 This department may be in charge of a commissioner of 
 agriculture, but the office is for the present combined with 
 the provincial treasurer's department. 
 
 {g} This office was joined in the 134th section to that of the com- 
 missioner of public works. See also section 135. 
 
156 GOVERNMENT IN CANADA. 
 
 The bureau of agriculture and arts, now called the 
 bureau of industries, is attached to this department; and 
 the Lieutenant-Governor in council appoints a secretary, 
 known as the secretary of the bureau of agriculture and 
 arts, who conducts the correspondence of the department 
 and such other business as may be assigned him by the 
 commissioner. 
 
 The commissioner institutes enquiries and collects useful 
 facts and statistics relating to the agricultural, mechanical 
 and manufacturing interests of the pi'ovince, and adopts 
 measures for disseminating or publishing the same in such 
 manner and form as he finds best adapted to promote 
 improvement within the province, and to encourage immi- , 
 gration from other countries. He may appoint persons to 
 inspect the books and accounts of any society receiving 
 government aid, and may examine witnesses and have 
 documents produced in reference thereto. 
 
 The societies in connection with the department are : 
 the agricultural and arts association, all agricultural and 
 horticultural societies, the fruit growers' association of 
 Ontario, the entomological society of Ontario, the poultry 
 association, the Ontario creameries' association, the bee- 
 keepers' association, and the dairymen's associations of 
 Ontario. These make returns to this department and 
 supply information on questions submitted to thern. 
 
 The agricultural college and model farm at Guelph, and 
 a library and museum in connection with it, are under the 
 control of the commissioner ; and a veterinary college is 
 established under prescribed rules of the council of the agri- 
 cultural and arts association, which also holds an annual 
 provincial fair or exhibition. 
 
 The commissioner reports to the house of assembly, 
 within 30 days after the opening of the session, giving a 
 detailed account of the proceedings in his department. 
 
THE PROVINCES ONTARIO. 157 
 
 4. THE DEPARTMENT OF CROWN LANDS, (h) 
 
 The commissioner of crown lands presides over this de- 
 partment, and has the management and sale of the public 
 lands and forests belonging to the province. 
 
 An assistant commissioner, appointed by the Lieutenant- 
 Governor in council, has charge of the department in the 
 absence of the commissioner, or when a vacancy occurs in 
 that office ; and he performs such duties in the department 
 as may be assigned to him by the Lieutenant-Governor in 
 council, or the commissioner of crown lands. Other officers 
 may also be appointed in the same manner as the assistant 
 commissioner. 
 
 The department and office of the surveyor-general are 
 now transferred to this department ; and the commissioner 
 exercises and performs such powers and duties as were 
 assigned to or vested in that officer before the 17th March, 
 1845. 
 
 The commissioper of crown lands reports to the legisla- 
 tive assembly, within ten days after the meeting of the 
 house, the proceedings, transactions and affairs of his 
 office, during the preceding year — sales of lands, revenues 
 of woods and forests, reports of surveys, colonization roads, 
 free grants, etc. 
 
 The public lands of the province are under the control 
 of this departm-ent. These are the crown lands, school 
 lands, clergy lands, and mineral lands. The Lieutenant- 
 Governor in council fixes the price, the terms and condi- 
 tions of sale, and of settlement and payment, of the public 
 lands; and the sales and appropriations of water lots, 
 licenses of occupation, and all assignments and the issue 
 and cancellation of patents, are issued, registered and 
 
 (h) This is a department by provincial statute, but is recognized and 
 continued by the B. N. A. Act, sees. 134, 135. 
 
158 GOVERNMENT IN CANADA. 
 
 effected by the commisBioner, with other departmental 
 business. He, or his assistant, may issue commissions, 
 and may authorize those in the employ of the department 
 to take affidavits in reference to the business of the depart- 
 ment, or regarding which it is interested. He causes lists 
 of patented lands to be forwarded to the different treasurers 
 in the province in the month of February in each year ; 
 and also a list of lands leased or licensed, or located as free 
 grant. He advertises, if he thinks fit, lists of publiclands 
 for sale, and furnishes such other information as may be 
 desirable. 
 
 If a patent has issued to the wrong person through mis- 
 take in the department or has a wrong description of the 
 land or contains any clerical error or misnomer, the com- 
 missioner, if there is no adverse claim, may direct the de- 
 fective patent to be cancelled and a correct one of the same 
 date to be issued. If a patent has issued through fraud or 
 in error or improvidence the complaining party may insti- 
 tute a suit in the high court of justice and have the patent 
 declared void. The commissioner may also cancel any 
 sale, grant, location, lease or license if there has been fraud 
 or imposition or violation of any of the conditions of sale, 
 etc. by the purchaser or his assignee. 
 
 As to the free grant lands, the Lieutenant-Governor in 
 council almost exclusively deals with these. The Act relat- 
 ing to free grants and homesteads does not interfere with 
 the power of the commissioner to grant timber licenses on 
 these lands. The free grant territory lies within the 
 districts of Algoma and Nipissing, and certain lands lying 
 between the Ottawa river and the Georgian Bay. (See Act 
 of 1886 as to the Eainy river district.) 
 
 The department looks after all trespasses on public lands, 
 and has very fall statutory instructions in regard thereto. 
 It deals with the mining lands of the province, subject to 
 
THE PROVINCES — ONTAEIO. 159 
 
 such orders in council as may be made in reference to them 
 and under the provisions of the General Mining Act. 
 
 This department has charge of crown, municipal and 
 mineral surveys, and contracts and repairs on colonization 
 roads. 
 
 By an Act called the Ontario Fisheries Act 1885, the 
 commissioner of crown lands may grant and issue fishery 
 leases and fishing licenses under certain conditions, regu- 
 lations and restrictions, but not over any lands or -waters 
 where an exclusive right of fishing, already exists by law. 
 The leases are for not more than five years and only grant- 
 ed to the highest bidder after public competition. The Act 
 applies to such of the waters of any lake, river, stream or 
 ■water-course wholly or partly within said province, as flow 
 over or cover any of its crown or public lands or crown 
 domain, (t) 
 
 A recent order in council dated 5th May, 1887, has 
 issued under this Act. 
 
 When a claim is made by any person as heir, devisee, or 
 assignee of the nominee of the crown, to the right to a 
 patent, special commissioners are appointed to decide there- 
 on. These forin what is called the heir and devisee 
 commission, which is one of the courts of law in Ontario. 
 But now under an order in council matters of this sort are 
 reported on by the law-clerk of the department to the com- 
 missioner who decides them without reference to the com- 
 missioners. 
 
 6. THE DEPARTMENT OF PUBLIC WORKS, {j) 
 
 This department is presided over by the commissioner 
 of public works, appointed by commission under the great 
 seal. 
 
 (i) See the Queen y. Robertson, 6 Supreme Court Appeals, page 52. 
 (j) This office is also created a department by provincial statute. See 
 ante, agriculture. 
 
160 GOVERNMENT IN CANADA. 
 
 The other officers, who are appointed by the Lieutenant- 
 Governor, are an architect, an engineer, a secretary, a law- 
 clerk, an accountant, and such others, whether their ap- 
 pointment be temporary or otherwise, as may be necessary. 
 The duties of the architect, engineer, secretary, law-clerk, 
 and accountant are laid down by statute. 
 
 The commisbioner has management of the department ; 
 and it is his duty to oversee and direct the other officers 
 and sei'vants ; and he may have other duties also assigned 
 him by the Lieutenant-Governor in council. 
 
 The department has control of all land, streams, water- 
 courses, and property, real and personal, heretofore or 
 hereafter acquired for the use of public works ; all canals, 
 locks, dams, hydraulic works, harbour piers, and other 
 works for improving the navigation of any water ; all slides, 
 dams, piers, booms, and other works for facilitating the 
 transmission of timber ; all hydraulic powers created by 
 the construction of any public works ; all roads and 
 bridges ; all public buildings ; all railways and rolling stock 
 thereon ; all vessels, dredges, scows, tools, implements and 
 machinery for the improvement of navigation ; all drains 
 and drainage works ; and all property heretofore or here- 
 after acquired, constructed, repaired, maintained, or im- 
 proved, at the expense of the province, and not under the 
 control of the Dominion government. These are declared 
 to be vested in Her Majesty, and under the control of this 
 department. 
 
 Any other property, and any of these works, roads, etc., 
 purchased or constructed at the public expense, may, by 
 proclamation of the Lieutenant-Governor, be vested in Her 
 Majesty, and subject to this department. 
 
 Any property not required for the use of the public works 
 may be leased or sold, under the authority of the Lieuten- 
 
THE PROVINCES— 7ONTAEIO. 161 
 
 ant-Governor ; and for the purposes of the department the 
 commissioner may acquire and take possession of any land 
 or real estate, streams, waters, water-courses, fences and 
 walls, for specified purposes and under certain restrictions. 
 
 The commissioner has also the necessary powers as to 
 drainage of land, and the construction of slides in mill-dams 
 or embankments; and he acts under the " Ontario Drainage 
 Act " in reference to drains within municipalities, on the 
 request of their councils, as provided by that Act. In 
 case any township desire to undertake such work, after the 
 plans and estimates are submitted to the department, he can 
 report thereon as to the investment of a portion of the 
 public money in debentures for the construction of such 
 drainage for the benefit of such township. 
 
 All expenses connected with the provisions for preventing 
 riots near public works are paid through the commissioner 
 under the statute respecting riots near public works. The 
 sale of liquors near public works is prohibited by stringent 
 provisions. 
 
 The commissioner of public works must within twenty- 
 one days after the commencement of each session, make 
 and submit to the Lieutenant-Grovernor an annual report 
 on all the works under his control, shewing the state of 
 each work, and the receipts and expenditure thereon, with 
 such further information as may enable the assembly to 
 judge of the working of the department. 
 
 His report includes the expenses and repairs of the 
 government house, parliament buildings, asylums, refor- 
 matories, prisons, institutes for the blind, deaf and dumb, 
 the agricultural college, the educational department, 
 schools under the government control, and Osgoode Hall ; 
 also the inspection, repair and construction of lock-ups, 
 goals, court rooms and registry offices in the districts of 
 o's.G.c. 12 
 
162 GOVEHNMENT IN CANADA. 
 
 Algoma, Muskoka, Nipissing and other unorganized dis- 
 tricts. 
 
 The engineer of the department reports on the slides, 
 dams, crib works, piers, bridges, dredging, locks and other 
 such matters as come within this department. 
 
 The department is charged with the duty of seeing that 
 the conditions on which aid has been granted to railways 
 out of the provincial treasury are complied with before the 
 funds are paid over and has a similar duty in respect to 
 drainage works. 
 
 Where it is necessary for a provincial railway in Ontario 
 to cross a dominion railway the company desiring to effect 
 such crossing must procure the approval of the commis- 
 sioner of public works as well as the approval of the railway 
 committee of the privy council of Canada, and the railway 
 companies cannot waive the provision by agreement, (k) 
 
 7. DEPARTMENT OF EDUCATION, [l) 
 
 This department consists of the executive council of the 
 province, or a committee out of that number. One of the 
 executive council is nominated to the office of minister of 
 education by the Lieutenant-Governor. 
 
 The minister of education may hold any other office in 
 the executive council, and he may be a member of the leg- 
 islative assembly and sit and vote therein. 
 
 This department supersedes the council of public instruc- 
 tion, which was suspended on the 10th of February, 1876 ; 
 and all the duties of that council are transferred to this 
 department, with a minister instead of the chief superin- 
 tendent of education at its head. 
 
 {k) Credit Valley Ry. v. the G. W. Ry., 25 Gr. 507. 
 
 {I) This department is created by statute of the province. It is not 
 amongst the offices mentioned in B. N. A. Act, sec. 134, 135. 
 
THE PEOVINCUS — ONTAEIO. 163 
 
 It superintends the studies and regulations of high 
 schools, the organization, government and discipline of 
 public schools and the classification of schools and teachers. 
 It provides for the efficiency of the normal and public 
 schools, examines and grants certificates to teachers, de- 
 fines the qualifications of inspectors and examiners, and 
 has the approval of all text, prize and library books. The 
 statutory duties of the minister include the distribution of 
 the legislative grants among the different public and high 
 schools, and the general superintendence of normal schools 
 and the conduct of teachers. The Acts relating to public 
 and high schools give him extensive powers in the manage- 
 ment of this department. 
 
 Schools coming within the range of the Separate Schools 
 Act are subject to inspection by the minister of education, 
 and also to such regulations as may be imposed on them 
 from time to time by the education department. 
 
 The minister may also certify regarding any proposed 
 industrial school in cities, that it is a fit and prop'er one for 
 the reception of children and the school shall thereupon be 
 deemed a certified industrial school. 
 
 The police magistrate may send there such children as 
 apparently are under 14 years of age if they are found 
 begging, or receiving alms, or are found wandering without 
 any visible rbeans of support, and having no home, or 
 guardian, or any lawful business, or being destitute, either 
 as an orphan, or one whose parent is imprisoned, or whose ' 
 parents are so vicious that they are under no proper con- 
 trol or education; or if such children are so unmanageable 
 that the parents or guardians cannot control' them. The 
 rules of such school are to be approved of by the minister. 
 
 The minister of education has power to decide upon all 
 disputes and complaints laid before him, the settlement of 
 
164 GOVERNMENT IN CANADA. 
 
 which is not otherwise provided for by law, and upon all 
 appeals made to him from the decision of any inspector or 
 other school officer. 
 
 In cases in the division court, in which school inspectors, 
 trustees, teachers or other persons under these Acts are 
 parties, an appeal is allowed to the superior courts of law 
 in Ontario. This exceptional proceeding is for the purpose 
 of securing uniformity of decision in school matters. The 
 minister has power also to submit a case to any judge of 
 these courts for the opinion or decision of the court therein. 
 
 The mintster of education is, ex officio, a member of the 
 senate of the University of Toronto, which senate has the 
 management of and superintendency over the affairs and 
 business of the university. The Lieutenant-Governor 
 appoints the president and all other officers, and approves 
 of the statutes of the senate. 
 
 The Ontario society of artists, and the mechanics insti- 
 tutes are by an Act of 1886 transferred to the educational 
 department. 
 
 The minister of education reports every year to the 
 Lieutenant-Governor in council, up to the 31st of December, 
 the actual state of the normal, model, high and public 
 schools, and collegiate institutes, showing the expenditure 
 and sources of revenue, with such statements, and sugges- 
 tions, in reference to the improvement of the schools and 
 the school law, and promoting education, as he may deem 
 useful and expedient. 
 
GOVEENMENT IN CANADA. 165 
 
 CHAPTER XV. 
 
 THE PEOVINCE OF QUEBEC AND OTHER PROVINCES THE 
 
 , TEERITOEIES. 
 
 Quebec, two houses, members, otherwise similar to Ontario, 
 Judges — Adjustment between the old Canadas — ^ova 
 Scotia and New BrunswicJe unchanged — Manitoba created 
 — British Columbia — Prince Edward Island — The North 
 West Territories — Keeivatin. 
 
 QUEBEC. 
 
 The legislature of Quebec consists of a Lieutenant-Gover- 
 nor and two houses styled the legislative council of Quebec 
 and the legislative assembly of Quebec, {a) 
 
 The legislative council is composed of 24 members, who 
 were appointed by the first Lieutenant-Governor of the 
 province in the Queen's name by instrument under the 
 great seal of Quebec. These hold office during life, unless 
 the legislature otherwise provides, subject to the Act of 
 1867. Their qualifications are the same as those of the 
 Quebec senators, which differ from those of other senators 
 in one respect — that is in this way : Quebec was divided 
 into 24 electoral divisions before confederation ; and each 
 of these sent a senator to Ottawa, and a legislative coun- 
 cillor to Quebec, both senators and councillors residing or 
 having their real property qualification in the division they 
 represented. The regulations as to vacancies in the place 
 
 (a) The constitution of the province of Quebec differs from that of 
 Ontario only in the addition of a second house in the former province 
 and in the different numbers of members in the assemblies. 
 
166 GOVERNMENT IN CANADA. 
 
 of a legislative councillor are the same as apply to senators ; 
 and vacant seats ate filled by the Lieutenant-Governor in 
 the same way as the first councillors were appointed. 
 Questions as to qualifications and vacancies in the legis- 
 lative council are heard and determined by that body. The 
 Lieutenant-Governor appoints their speaker, and may re- 
 move him and appoint another. Ten members, including 
 the speaker, are a sufficient number to constitute a meeting 
 for the exercise of its powers. The speaker has a vote ; 
 and when the votes are equal, the motion is declared in the 
 negative, (h) 
 
 Every legislative councillor, before taking his seat, must 
 take and subscribe before the Governor-General, or some 
 one authorized by him, the oath of allegiance, and the 
 declaration of qualification, prescribed for senators as well, 
 and which has already been referred to under the chapter 
 on the senate, (c) 
 
 The legislative assembly of Quebec is composed of 65 
 members, until altered by the legislature of the province ; 
 and even then the second and third readings of a bill for 
 altering the limits of certain electoral divisions cannot be 
 presented to the Lieutenant-Governor for his assent unless 
 with the concurrence of the majority of the members 
 representing all these divisions, and an address presented 
 by the assembly stating that the bill has been so passed. 
 Those electoral districts of Quebec, specially fixed, are the 
 counties of Pontiac, Ottawa, Argenteuil, Huntington, Mis- 
 sisquoi, Beauce, Shefford, Stanstead, Compton, Wolfe and 
 Eichmond, Meganticj and the town of Sherbrooke. (d) 
 
 The seat of government is at Quebec ; and the executive 
 council is Composed of the same number of ministers 
 
 (6) Sees. 72 and 80. 
 
 (c) Sec. 128. 
 
 (d) Sec. 80. 
 
THE PROVINCE OF QUEBEC, ETC. 167 
 
 as in Ontario, except that in Quebec the speaker of the 
 legislative council and the solicitor-general are included in 
 the executive. In Ontario there are no offices for such 
 persons, (e) 
 
 All the other provisions in the Act of 1867 relating to 
 the constitution and legislative powers of Quebec are the 
 same as have been set out in regard to Ontario. 
 
 The judges of the Quebec courts must be selected from 
 the bar of that province ; but when the laws relating to 
 property and civil rights in Ontario, Nova Scotia and 
 New Brunswick, are made uniform, the Governor-General 
 may appoint judges for these provinces from any one of 
 them. (/) 
 
 The powers, authorities and functions of the Lieutenant- 
 Governors are the same in both provinces, except possibly 
 in so far as the legislatures of Upper and Lower Canada, 
 prior to 1840, may have vested their respective Governors 
 or Lieutenant-Governors with different powers, authorities 
 and functions. The legislature of Lower Canada was sus- 
 pended at one time by Imperial Act, a circumstance which 
 did not happen to Upper Canada ; but it is unlikely that 
 this caused any very material difference in the statutory 
 powers of their Governors. 
 
 The Lieutenant-Governor of Quebec may, bj'' proclama- 
 tion, constitute townships in those parts of his province 
 not already constituted, and fix the metes and bounds 
 thereof, (g) 
 
 The executive government, as was seen, is carried on by 
 the same number of members as in 0-ntario, except that 
 
 (e) Sec. 134. 
 
 (/) Seoa. 97 and 98. Sec. 94 provides for the contingency of uniform 
 laws, but it does not extend to Quebec. 
 (g) Sec. 144. 
 
168 ■ GOTERNMENT IN CANADA. 
 
 they have no minister of education ; but they have addi- 
 tional officers in the persons of the solicitor-general and 
 speaker of the legislative council. The ofi&ce of agriculture 
 and public works is under one minister, and there has 
 been a commissioner of railways, but the office is now 
 abolished, (h) 
 
 The officers in charge of the departments in Quebec 
 succeed to all powers, duties, functions, etc., of those 
 officers in the government of the late province of Canada, 
 or of Lower Canada, in the same way as the departmental 
 officers in Ontario do. The departmental offices in the two 
 provinces agree in their main points, and are different 
 chiefly in matters of detail ; and it is not necessary to enter 
 into a separate consideration of them as regards the pro- 
 vince of Quebec. 
 
 The division and adjustment of the debts, credits, lia- 
 bilities, properties and assets of Upper and Lower Canada 
 was referred at confederation to three arbitrators, one 
 chosen by each government of the provinces and one by 
 the government of Canada ; and the Governor-General in 
 council may order a division of the records, books and docu- 
 ments of the late province of Canada between the present 
 provinces of Ontario and Quebec, (i) 
 
 NOVA SCOTIi AND NEW BEUNSWICK. 
 
 The Act of 1867 uniting the provinces did not alter the 
 legislatures of either Nova Scotia or New Brunswick. Sub- 
 ject to the provisions of this Act, they continued as they 
 were before that date, and remain so until altered under 
 the authority of the Act. (j) The same applies to the 
 
 (h) Quebec Statutes, 1886, cap. IV. 
 (i) Sees. 142-143. 
 U) Sec. 88. 
 
THE PROVINCE OF QUEBEC, ETC. 169 
 
 executive power of these provinces, which was also un- 
 changed, (k) They were restricted to legislating only on 
 the prescribed class of subjects assigned to the provinces 
 by such machinery as they always possessed. The mode 
 of appointing the governors was changed — it thereafter 
 rested with the Governor-General of Canada. Nothing is 
 said as to the powers, authorities and functions of any 
 Lieutenant-Governors, except those of Ontario and Quebec. 
 All of them recommend to their respective houses by mes- 
 sage, appropriations, tax bills and all money votes. 
 They can assent to bills, disallow them, or reserve them 
 for the signification of the Governor-General's pleasure. 
 
 These provinces have the exceptional privilege of ap- 
 pointing judges to their own courts of probate, (l) 
 
 Nova Scotia and New Brunswick, like Quebec, have two 
 houses — a legislative council and a legislative assembly. 
 The house of assembly in Nova Scotia is composed of 38 
 members, and in New Brunswick of 41 members — the 
 legislative councils of 16 and 18 respectively, (m) 
 
 (k) Sec. 64. 
 
 [1) Sec. 96. 
 
 • (m) In 1879, a measure to do away with the upper house in Nova 
 Scotia passed the assembly, but was rejected in the legislative council. 
 The assembly then presented an address to the Queen, asking that the 
 B. N. A. Act be amended so that new councillors might be added to carry 
 the measure in the other house. The legislative councillors presented a 
 counter address, and the executive council a memorandum showing its 
 approval of the action of the assembly. The colonial secretary replied 
 (25th June, 1879), declining to advise any action in the matter. Con- 
 siderable correspondence is to be found in the years 1880-81 on this 
 question. The secretary of state of Canada advised the local government 
 that a full opportunity had not arrived in order to restore harmony 
 between the houses, and that the Governor-General would be glad to 
 submit any additional papers to the colonial secretary. Accordingly, 
 Nova Scotia secured the co-operation of the other maritime provinces in 
 the hope of freeing themselves from their legislative councils. The 
 matter was strongly urged before the Dominion government, but nothing 
 came of it. In 1882, a bill in the assembly in Nova Scotia to abolish the 
 council was, on its second reading, defeated by 12 to 9. 
 
170 GOVERNMENT IN CANADA. 
 
 The executive council in Nova Scotia is at present com- 
 posed of seven members, of vs^hich only three have port- 
 folios — that is the provincial secretary, the attorney-general 
 and the commissioner of public ■works and mines. 
 
 In New Brunswick the number of the executive council 
 is seven also; but here they have an attorney-general, a 
 provincial secretary and receiver-general, a chief com- 
 missioner of the public works, and a solicitor-general. 
 
 MANITOBA. 
 
 By au Imperial Act passed in 1871, the parliament of 
 Canada may from time to time establish new provinces in 
 any -territories forming for the time being part of the 
 Dominion of Canada, but not included in any province 
 thereof, and may at the time of such establishment make 
 provision for the constitution and administration of any 
 such province and for the passing of laws for the peace, 
 order and good government of such province and for its 
 representation in the said parliament, (n) This Act was 
 passed to confirm the Dominion Act, establishing the pro- 
 vince of Manitoba. 
 
 This province and the territories hereafter mentioned 
 were part of Kupert's Land and the North-West Territor.y 
 before they were admitted into the union in 1870. This 
 was affected by proclamation pursuant to order in council 
 at Ottawa. The boundary of Manitoba was defined then, 
 but has been altered since, in 1877, by the parliament of 
 Canada, with the consent of the legislature of Manitoba, (o) 
 All the provisions of the British North America Act which 
 apply to the whole of the provinces are applicable to Mani- 
 
 («) 34 and 35 Vic. cap. 28 ; see sec. 146 B. N. A. Act. 
 
 (o) The present boundaries are set out in E. S. C. chap. 47. The eastern 
 boundary is a line due north from the point where the western boundary 
 of Ontario intersects the international boundary with tlie U. S. 
 
THE PEOVINOE OF QUEBEC, ETC. 171 
 
 toba as if it had been one of the provinces originally united 
 by that Act. The Act admitting this province defines the 
 qualification of voters — the duration of the assembly to be 
 four years with a j'early session, as in Ontario, and the 
 seat of government to be at Fort Garry, or within a mile of 
 that place. Fort Garry is now the city of Winnipeg. 
 
 The constitution originally given to Manitoba provided 
 for a Lieutenant-Governor and two houses, as in Quebec ; 
 but in 1876 the legislative council was abolished by the 
 local legislature. 
 
 The legislative assembly, which, with the Lieutenant- 
 Governor, now forms the legislature, is composed of thirty- 
 five members, representing the districts into which the 
 province is divided, (p) 
 
 The executive council is composed of such persons and 
 under such designations as shall seem fit to the Lieuten- 
 ant-Governor. It at present consists of five persons — a 
 provincial treasurer, a provincial secretary, minister of 
 public works, the attorney-general and a minister of agricul- 
 ture, statistics and health. 
 
 The provisions regarding the speaker originally, and in 
 vacancies, the duties of speaker, the absence of speaker, and 
 the mode of voting, are the same as in the house of commons 
 at Ottawa. Canada assumes and defrays a large portion of 
 the expenses of the province. Almost every year since its 
 admission a number of Acts have been passed in the par- 
 liament of Canada applying to Manitoba ; but except as to 
 the limits of that province (and only then by consent of the 
 Manitoba legislature,) the parliament of Canada has no 
 power to alter the provisions of the Act originally estab- 
 lishing that province, (q) 
 
 (p) statutes of 1886, Man. . 
 
 (q) The B. N. A. Act, 1871, sees. 3 and 6. The provisions as to the 
 alteration of limits (sec. 3.) apply to all the provinces. 
 
172 GOVERNMENT IN CANADA. 
 
 BRITISH COLUMBIA. 
 
 This province was admitted into the union on the 20th 
 of July, 1871, by royal proclamation of the Queen in 
 council. 
 
 The constitution of its legislature is the same as that 
 of Ontario, it being composed of a Lieutenant-Governor 
 and one house of assembly. The executive council is at 
 present composed of an attorney-general, a chief commis- 
 sioner of lands and works, a provincial secretary, minister 
 of mines and a minister of finance and agriculture. The 
 legislative assembly is composed of twenty-five members. 
 
 PRINCE EDWARD ISLAND. 
 
 This province was admitted into the union on 1st of 
 July, 1873. 
 
 The legislature is composed of a Lieutenant-Governor, a 
 legislative council of 13 members, and a legislative 
 assembly of 33 members — both houses being elected by the 
 people. 
 
 The executive council is composed of the attorney-general 
 the provincial secretary, treasurer and commissioner of 
 public lands, and a commissioner of public works, with some 
 other members without office. 
 
 The terms upon which this colony was admitted are laid 
 down at considerable length in the order in council in that 
 behalf. Canada became liable for the debts of the province, 
 and the province was entitled to incur a liability of four 
 millions of dollars in view of her isolated and exceptional 
 condition, and as something towards the share other pro- 
 vinces received from Canada in reference to railways and 
 canals. There being no revenue from crown lands in the 
 
THE PEOVINCB OF QUEBEC, ETC. 173 
 
 province the Dominion government agreed to supply her 
 with about $40,000 per annum in order to purchase lands 
 from large landed proprietors. Canada also pays a large 
 yearly sum towards defraying the expenses of the local 
 government and legislature, besides such charges as are 
 incident or appertaining to the general government and 
 allowed to the other provinces. 
 
 The constitution of the legislative and of the executive 
 government remained unchanged ; but all the provisions 
 of the Act of 1867, except those parts which in terms or by 
 reasonable intendment apply to only one province, or to a 
 part of the dominion, take effect in Prince Edward Island. 
 
 THE NOKTH-WEST TEEKITORIBS AND THE DISTBICT OF 
 KEEWATIN. 
 
 The territories formerly known as Eupert's Land and 
 the North -West. Territory are, with the exception of such 
 portions as form the province of Manitoba and the district 
 of Keewatin, now called the North-West Territories. 
 
 There is a Lieutenant-Governor for the Territories ap- 
 pointed under the great seal of Canada and holding office 
 during pleasure. He administers the government under 
 instructions given him from time to time by the Governor in 
 Council or by the secretary of state of Canada. He is aided 
 in the administration of the territories by a council of six 
 persons appointed by the Governor in Council. The seat of 
 government is at present Eegina but it may be changed 
 from time to time by the Governor in Council. 
 
 When the population attained certain proportions, elec- 
 toral districts were formed and elections took place for a 
 council. This elective chamber at present has 13 members 
 and when it reaches the number of 21, the nominated 
 council ceases to exist. This body shall be constituted and 
 
174 GOVERNMENT IN CANADA. 
 
 designated as the legislative assembly of the territories, 
 and it shall sit at least once a year. The members shall 
 hold office for two years. Bills passed by them may be 
 approved or disapproved of, or reserved to the Governor- 
 General. At present the Lieutenant-Governor presides 
 over the elective council, but when the legislative assembly 
 comes into operation the powers of the council pass to it, 
 and it assumes the formalities of an assembly, (r) 
 
 The North- West Territories will hereafter be entitled to 
 a representation of four members in the commons and two 
 in the senate of Canada, (s) The provisional districts of 
 Saskatchewan and Alberta send one member each ; and 
 Assiniboia is divided into two ridings, east and west, and 
 each of these sends also one member. 
 
 KEEWATIN. 
 
 Keewatin was detached from the territories in 1876, but 
 it is now somewhat different, in its southern boundary, 
 from what it was in that year. It may shortly be describ- 
 ed as the territory west of Hudson's Bay to a meridian line 
 between 100 and 101 degrees of longitude west from Green- 
 wich extending north to the limits of Canada and south to 
 the province of Manitoba. The eastern boundary of Man- 
 itoba is a line due north from the point where the western 
 boundary of Ontario intersects the international boundary 
 with the United States, and this line produced north to 
 Hudson's Bay appears to be the eastern boundary of 
 Keewatin. As originally formed it comprised the territory 
 lying east of Manitoba and west of Ontario, but both these 
 provinces since 1876 have enlarged their boundaries and 
 they now meet at the point already mentioned, (i) 
 
 (r) B. S. C. cap. 50. 
 
 (s) 50-51 Vic. D. cap. 3 and 4, B. S. C. cap. 7. 
 
 (t) The northern boundary of Ontario ia yet undecided. The eastern 
 boundary of Manitoba is not the western boundary of Ontario, except at 
 
THE PROVINCE OF QUEBEC, ETC. 175 
 
 The Lieutenant-Governor of Manitoba is ex officio Lieu- 
 tenant-Governor of this district ; and he, with a council of 
 not less than five or more than ten, administers the affairs 
 of the district. The council is appointed by the privy 
 council at Ottawa ; and all the powers it possesses are de- 
 rived from orders in council there. 
 
 Provisions somewhat similar to, an'd in many instances the 
 same as those set out in the last chapter on the Govern- 
 inent of the North-West Territories, apply to this district ; 
 and all laws in force in the Territories are to remain in 
 force in the district until otherwise altered, (m) 
 
 This district has no representation in the senate or in the 
 commons of Canada. 
 
 the point on the international boundary referred to. The province of 
 Ontario claims as against the Dominion government that its northern 
 boundary is not south of James Bay, or the most north-westerly point of 
 the Lake of the Woods. But no authoritative decision has been given in 
 the matter. The province has grounds for claiming all lands south of 
 those owned by the Hudson Bay Company and east of the line determined 
 by the judicial committee of the privy council. 
 («) B. S. C. cap. 53. 
 
176 GOVERNMENT IN CANADA. 
 
 CHAPTEE XVI. 
 
 THE JUDIOATtlEE. 
 
 Defects of written constitutions, imperfect description Oj 
 boundaries to legislative powers — Position of the courts 
 — Different sources of laws — The judicial power in the 
 United States, in Canada, similar duties but dissimilar 
 origin. 
 
 Under a federal system of government, as has been seen, 
 a written constitution is a necessity. The limits of legis- 
 lative control between the central and local governments 
 must be sharply defined. The respective fields which are 
 mapped out for the exercise of their law-making powers 
 should be separated and fenced off with all the accuracy of 
 language that is possible. Notwithstanding the desire to 
 locate this distinct boundary, it has not been possible in 
 the American or in the Canadian constitutions to do more 
 than to express by general classification the areas intended 
 to be covered by the different governments. To use the 
 language of Mr. Blake, as applying to Canada, " the B. N. 
 A. Act is a skeleton." Without resorting to the particu- 
 larity of a code, the framers of the Act had to be content 
 with a couple of pages of subjects in language necessarily 
 imperfect, and capable as has been since seen, of more 
 than one interpretation. The difficulties in this respect 
 have been very great in this country, and the task of 
 deciding upon a conflict of laws has been, and will be, by 
 no means an easy one. It is the province and duty of the 
 judicial department to determine the boundaries of these 
 
THE JUDICATURE. 177 
 
 subjects ; to say what the law is, and if two laws conflict 
 with each other, to decide on the operation of each ; so that 
 if the law be in opposition to the constitution, and both 
 apply to a particular case, the court must either decide the 
 case conformably to the law, disregarding the constitution, 
 or conformably to the constitution, disregarding the law. {a) 
 Where the powers of the legislatures are defined and limited 
 it is the duty of the courts to say whether or not these 
 limits have been passed. " The right of all courts, state 
 and national," says Mr. Justice Story, "to declare uncon- 
 stitutional laws void, seems settled beyond the reach of 
 judicial controversy." This language is as applicable in 
 the Canadian as in the American union. 
 
 An imperial statute in 1867 gave Canada a written and 
 defined constitution. Under this constitution two govern- 
 ments were endowed with large legislative powers. All 
 the laws were to be interpreted by the courts, but in- 
 terpreted so as not to conflict with the imperial laws, 
 which must be executed before all others. Our courts, there- 
 fore, are bound to determine what laws are in force. A 
 Canadian law which is repugnant to any imperial enact- 
 ment must be declared void by the courts — a higher than 
 Canadian power has said that it is no law at all. Again, 
 the Dominion parliament may usurp provincial rights, or a 
 province assume to deal with dominion matters ; the courts 
 still sitting under the constitution, the imperial enactment 
 must refuse to accept such attempted legislation as valid 
 law. The courts in Canada are still the Queen's courts 
 and bound to interpret such law as is in force, and equally 
 bound to declare that the Acts of any of our legislatures, 
 when transcending their limits, are unconstitutional and 
 void. The courts, so long as they are permitted to exist, 
 are not the creatures of either the provincial or federal legis- 
 
 (a) Marhury v. Madison, 1 Cranch 177. 
 
 o's.G.c. 13 
 
, 178 GOVERNMENT IN CANADA. 
 
 lature ; they are of course subordinate to constitutional 
 legislation, but they are co-ordinate and in effect superior 
 to that ■which is not constitutional. 
 
 In Great Britain the legislature is the chief power in the 
 land. There being no written constitution, no plain speak- 
 ing and inflexible statute of paramount law, under which 
 the government of the country is carried on, the constitu- 
 tionality of its acts cannot be questioned by the courts in 
 the same way as in those countries wherein there is a 
 government with divided powers. The acts of the legis- 
 lature form the law, and these acts its courts must construe 
 without questioning their validity or testing them with the 
 constitution. The British people speak in each legislative 
 enactment through one parliament with plenary power; 
 and their latest utterance is the guide for their courts, which 
 are always subordinate to this legislature, and exist solely 
 by its permission. 
 
 In our federal government it is the duty of the judiciary, 
 as the appropriate means of securing to the people safety 
 from legislative aggression, to annul all legislative action 
 without the pale of the written constitution. In matters of 
 conflict between the powers of the local and central 
 legislatures, the position of the judiciary is not that of a 
 subordinate, but of a co-ordinate branch of the govern- 
 ment ; and it must declare every act of the legislature 
 which is repugnant to the constitution to be absolutely 
 void. This power is not confined to any particular court, 
 but extends to all courts both dominion and provincial. 
 The courts are the custodians of the constitution. 
 
 These courts are also bound to declare what laws are in 
 force in the Dominion, whether they are enacted by the 
 parliament of the Dominion or by the local legislatures. 
 The provincial courts are no mere local courts for the 
 
THE JUDICATURE. 179 
 
 administration of the laws passed by the legislatures of the 
 provinces in which they are organized. 
 
 The union of the provinces in 1867 did not in itself effect 
 any alteration in these courts in this respect. The powers 
 of the courts are ones to be exercised with the most de- 
 liberate caution. Unless it is clear that the legislature has 
 transcended its authority, the courts will not interfere. No 
 court can pronounce any Act of the legislature void for any 
 supposed inequality or injustice in its operation, provided 
 it be on a subject matter purely within the scope of 
 legislative authority, and the provisions of the law in 
 general. 
 
 This being, it is apprehended, the position of our judici- 
 ary in Canada, the laws to be considered necessarily refer~ 
 to three sources — the imperial, the dominion and the pro- 
 vincial. 
 
 What is known as the common or the unwritten law of 
 England was largely imported into all parts of the Do- 
 minion in virtue not only of British subjects bringing part 
 of this law with them of necessity, but also by means of its 
 express introduction by statute. The introduction of Eng- 
 lish law in these various ways brought with it the decisions 
 of the courts in Great Britain in reference to the same ; 
 and these decisions or precedents are another source of 
 laws. The introduction of the criminal law of England to 
 the old province of Quebec in 1774 introduced all these 
 sources of law at once. 
 
 In the province of Ontario a few references will show how 
 extensively the laws of England have been adopted here. 
 
 In 1792 all the amendments made in England to the 
 criminal law since 1774 were transferred to Upper Canada ; 
 and in the same year the law as to property, civil rights, 
 
180 GOVERNMENT IN CANADA. 
 
 and trial by jury as it then stood, was declared to be the 
 'law for the province. On the establishment of the Court 
 of Chancery, the law of England, as it stood in 1837, 
 regarding the English Court of Chancery was, unless other- 
 wise provided, to be in force here ; and the rights, incidents 
 and privileges of the courts of common law in England in 
 1859 were transferred to our Superior Courts of law. In 
 British Columbia the criminal law of England as it stood 
 on the 19th of November, 1858, subject to local legislation, 
 is the criminal law of that province. 
 
 The local legislatures may delegate to municipal or other 
 •corporations the power of making laws. This is effected 
 by the by-laws of these bodies, which are as much the law 
 of the land as any legislative Ac-ts ; and, as another ex- 
 ample, may be mentioned the powers of the Governors in 
 Council under statute regulations to promulgate orders 
 having the force of laws. 
 
 When it is remembered that all the different sources of 
 the laws, their application and their meaning, have to be 
 considered and determined by the courts, it will be seen 
 how important is the judicial department of government, 
 and how imperious and absolute is the necessity of securing 
 its independence, (a) It bears the whole stress of the 
 constitution. 
 
 Mr. Duer, writing on the constitution of the United 
 States, says : 
 
 "Whoever attentively considers the different departments 
 of power, must perceive that in a government in which 
 they are separated from each other, the judiciary, from 
 the nature of its functions, will always be the least danger- 
 ous to the political rights secured by the constitution, 
 because it will have the least capacity to invade or injure 
 
 (a) In tlie United States, the judges of the supreme and inferior courts 
 hold their offioes, during good behavior. 
 
THE JUDICATUKE. 181 
 
 them. The executive power not only dispenses the honors, 
 but wields the sword of the community. The legislature 
 not only holds the public purse, but prescribes the rules by 
 which the rights and duties of every citizen are to be en- 
 joyed and regulated. But the judicial power has no com- 
 mand over the sword or the purse ; — no direction, either of 
 the strength or the wealth of the society and can take no 
 active resolution whatsoever. It has been truly and em- 
 phatically said to have ' neither force nor will, but merely 
 judgment ; " (b) and even for the practical exercise of this 
 faculty, it must depend on the protection and support of 
 "the executive arm." 
 
 There is only one section in the B. N. A. Act that refers 
 to any court not already in existence in the provinces. 
 
 The 101st section is as follows : 
 
 The parliament of Canada may notwithstanding anything 
 in this Act, from time to time, provide for the constitution, 
 maintenance and organization of a general court of appeal 
 for Canada and for the establishment of any additional 
 courts for the better administration of the laws of Canada. 
 
 The creation of the court of appeal does not in itself give 
 to that court any power not possessed by the courts appeals 
 ed from. It would have no inherent jurisdiction, it would 
 simply settle more authoritatively questions of law from 
 the courts in the provinces. As a court of appeal it has 
 BO more power than is possessed by the provincial courts 
 already in existence. Under the last part of section 101, 
 
 (6) The Federalist No. 78. When the Supreme Court cannot count 
 upon the support of the executive, its judgments may be without force in 
 the United states, though this could not arise under our government. 
 There the executive force being in the President, and being a real force, 
 the latter may if so minded refuse to carry out the law. When C. J. 
 Marshall had delivered a judgment obnoxious to President Jefferson, the 
 latter is reported to have said, in republican simplicity of language, "John 
 Marshall has delivered his judgment, let him now execute it — if he can." 
 
182 GOVEBNMENT IN CANADA. 
 
 it could be invested with new powers and endowed with 
 original as well as appellate jurisdiction. But if this sec- 
 tion had been omitted from the Act, the other courts would 
 still have the same position they now occupy. They derive 
 no assistance and receive no .new powers from the Act. 
 They are simply made subject to an appeal court which it 
 was hoped would take the place of an appeal to England. 
 It does not take away any of their rights and duties and 
 does not divert the judicial power from the Crown. The 
 judicature in Canada as in England points to the Queen as 
 its source. There is no change in that respect under our 
 federal system, and the principles of the British constitu- 
 tion have been adhered to so far as the judicature is con- 
 cerned. 
 
 In the American union the position of the judicature is 
 very different. By the 1st section of Article III. 
 
 The judicial power of the United States shall be vested 
 in one supreme court, and in such inferior courts as the 
 congress may from time to time ordain and establish. The 
 judges both of the supreme and inferior courts shall hold 
 their offices during good behaviour; and shall at stated 
 times receive for their services a compensation which shall 
 not be diminished during their continuance in office. 
 
 By the United States constitution, the judicial power is vest- 
 ed in the supreme court just as much as the executive power 
 is vested in the president or the legislative power is vested 
 in the congress. Under this state of things there is no 
 common source of power such as is the first estate under 
 the British constitution. The three divisions of govern- 
 ment are three co-ordinate powers — one making the laws, 
 another interpreting them and another executing them. 
 These powers are not only co-ordinate but they are dis- 
 tinctly separated in theory and in practice. In the United 
 Kingdom they are united in theory and in practice. The 
 
THE JUDICATURE. 183 
 
 Queen acting under the advice of a prime minister is in the 
 first instance, the legislative, the executive and the judicial 
 power. It is not to be imagined that in the judicial 
 department the prime minister does more than create the 
 courts and supply them with judges and everything needful 
 in that respect : the distinction between the two forms of 
 government is that in the United States the judicial power 
 is independent of the congress and the president ; while in 
 Great Britain the judicial powers and all other powers are 
 in the control of the executive. 
 
 In the Canadian union the theory and practice follow the 
 principles of the British constitution. The supreme court in 
 this country has no position at all analogous to that of the 
 United States supreme court. Here it is a court of appeal 
 for the provinces. It has no more power to declare an act of 
 one of the legislatures unconstitutional than has the lowest 
 court in the land. It is co-ordinate with the legislatures 
 just as the other courts of Her Majesty are co-ordinate. 
 There is no judicial power vested in it or in them, they are 
 all equally under the constitution and bound to construe 
 all legislative and executive Acts in accordance with that 
 supreme law. There is therefore no analogy between the 
 origin of the judicial power in Canada and in the United 
 States ; but the exercise of judicial power in Canada is 
 analogous to its exercise in the American union in deciding 
 whether the legislatures have kept within their proper 
 limits. In Canada that means in effect whether the im- 
 perial Act of 1867 is not transgressed by any statute of the 
 Canadian legislatures. It is not the supreme court or the 
 authority to create courts that permits when necessary such 
 legislation to be declared void, but it is the fact that the 
 same power that decreed the constitution, created the courts ; 
 and their duty is to see that no Canadian statute is at 
 variance with that standard of government and of laws — 
 the Confederation Act. 
 
184 GOVERNMENT IN CANADA. 
 
 CHAPTER XVII. 
 
 THE COURTS. 
 
 The judicial committee of the privy council, composition, juris- 
 diction, discretion as to appeals, procedure, judgment — 
 The supreme court of Canada, jurisdiction, court of last 
 resort, sittings, practice and procedure — The exchequer 
 court of Canada, new constitution, jurisdiction, to folloiv 
 English practice, sittings, writs run through Canada — 
 The maritime court of Ontario, jurisdiction, judge, 
 practice. 
 
 THE JUDICIAL COMMITTEE OP THE PRIVY COUNCIL. 
 
 This court is the last resort of a colonial British subject 
 in appeal from the laws of his own colony. 
 
 The privy council in England is composed of a large 
 number of distinguished persons. Most of the principal 
 judges, the speaker of the house of commons, the Queen's 
 ambassadors and those formerly holding of&ces in the min- 
 istry, besides the archbishops and some bishops, are mem- 
 bers of this body. One distinguished committee forms the 
 cabinet ; another, with which only we have to deal here, 
 forms a judicial committee, the functions of which are to decide 
 all matters that can judicially come by appeal or by com- 
 plaint in the nature of appeal before the Queen, or the 
 Queen in council. On hearing the case argued this com- 
 mittee reports to the Queen in council its recommendation 
 for her decision. 
 
THE COURTS. 185 
 
 This court is composed of such privy councillors as are 
 or were its presidents, judges of the chief courts of equity , 
 and common law, the judges of the admiralty, of the pre- 
 rogative court of Canterbury, bishops and archbishops, two 
 retired East Indian or Colonial Judges, and two others, (a) 
 
 The committee has the ordinary powers of the superior 
 courts in England as to witnesses, juries, process, etc. ; 
 and cases may be heard by three of its members and the 
 lord president. The court holds three sittings in the year, 
 generally in February, June and November, and lasting 
 about six weeks. 
 
 The jurisdiction of the judicial committee is divided into 
 two heads — one comprising appeals allowed by right, and 
 the other those cases where leave to appeal is first of all 
 necessary. The crown may, in Acts of its colonial legisla- 
 tures, shut out the right to appeal — it may abrogate its 
 prerogative. Where the right of the crown is not reserved, 
 or whfere the fair construction of the colonial Act is that no 
 appeal will lie to the privy council, then the judgment of a 
 colonial court under the provisions of such an Act, assented 
 to by the crown, is final. The crown, by assenting, takes 
 away the right of appeal. 
 
 The Quebec controverted elections Act of 1875, states 
 that the judgment of the court " shall not be susceptible of 
 appeal; " and an appeal to the privy council was refused in 
 a case coming under the Act. (b) 
 
 The Dominion Act estabhshing the supreme court at 
 Ottawa in 1875, made its judgments final without appeal, 
 saving any right which Her Majesty may exercise in virtue 
 of the royal prerogative. 
 
 (a) Cox's British Commonwealth. 
 
 (6) Theherge v. Landry, 2 App. Gas. 1G2. 
 
186 GOVERNMENT IN CANADA. 
 
 Lord Cairns, in constructing the section of the supreme 
 court Act containing these words, laid down the rule that 
 the judicial committee of the privy council would have no 
 hesitation in a proper case of advising Her Majesty to per- 
 mit an appeal from the judgment of this court. The dis- 
 cretion of so allowing an appeal to be heard would not be 
 exercised where the amount involved was small, and where 
 tbe issue between the parties related simply to the 
 legal construction of a particular contract, or where no 
 general principle was involved, or where no other cases 
 were necessarily affected by the decision complained of. (c) 
 
 Appeals lie as a matter of right from the provinces, but, 
 so far as colonial cases are concerned, it is said that no 
 appeal lies in any case of felony. When the last court is 
 reached in criminal matters the condemned has the right 
 to sue for pardon at the foot of the throne. Formerly the 
 pardoning power was supposed to be or was in reality, in 
 the personal discretion of the Governor-General, (d) 
 
 Appeals to Her Majesty in her privy council are enter- 
 tained from the court of appeal in Ontario, where the mat- 
 ter in controversy exceeds the sum or value of $4,000, and 
 in cases relating to the taking of any annual or other rent, 
 customary or other duty or fee, or any like demand of a 
 general or public nature affecting future rights, no matter 
 
 (c) Johnston v. The Minister and Trustees of St. Andrew's Church, Mon- 
 treal, 3 App. Cas. 159. 
 
 (d) The instructions as to pardon are now to this effect : 
 
 " The Governor-General is not to pardon or reprieve any offender who 
 may be tried within the Dominion without first receiving in capital cases 
 the advice of the privy council, and in other cases the advice of at least » 
 one minister. And in cases in which such pardon or reprieve might 
 directly affect the interests of the empire, or of any country or place be- 
 yond the jurisdiction of the government of the Dominion, the said 
 Governor-General shall before deciding as to either pardon or reprieve, 
 take these interests specially into his own personal consideration in con- 
 junction with such advice as aforesaid." Instructions to his Excellency 
 the Marquis of Lome. 
 
THE COURTS. 187 
 
 what the amount in question may be: Beyond these no 
 appeals lie from the court of appeal in Ontario to the judi- 
 cial committee of the privy council. 
 
 All cases of appeal are commenced by petition addressed 
 to Her Majesty in council ; and this is the first step in 
 their prosecution. Afterwards certified copies of the record 
 from the court appealed from are sent to England and 
 deposited in the council office ; and an appearance haying 
 been entered by the respondent, each side makes up its own 
 case if it is allowed to be heard. 
 
 Security to the amount of $2,000 must be given in such 
 cases. 
 
 Earl Carnarvon, in 1874, intimated to the Governor- 
 General of Canada that in order to bring appeals from the 
 supreme court of. Canada, a petition for that purpose in order 
 to obtain leave to appeal should be brought before the 
 judicial committee of the privy council, and not trans- 
 mitted through the secretary of state to the Queen in council . 
 He also intimated as the practice, that the respondent must 
 enter an appearance before any answer is returned by the 
 judicial committee in reference to the petition. The Gover- 
 nor-General hereafter is to decline transmitting applications 
 in a private suit to the secretary of state for the colonies, 
 but is to inform the petitioner what steps to take in the 
 matter. The circular dispatch of Earl Carnarvon, though 
 directed to the practice in appeals, is an indication that the 
 royal prerogative as to allowing them from Canada will be 
 exercised on the recommendation of the judicial committee 
 itself. In effect it would seem to be similar to an applica- 
 tion to any appellate court for leave to appeal, where such 
 leave is necessary. 
 
 The judicial committee has unlimited powers in the way 
 
188 GOVERNMENT IN CANADA. 
 
 of procedure, and ii? not bound by the rules in the court 
 below. 
 
 The case is argued by senior and junior counsel, the 
 appellant's counsel having the right to reply : and the 
 judgment of the court is delivered by one judge only, and 
 need not be unanimous — a majority being sufficient, (e) 
 
 The judgment, after being delivered, is reported by the 
 committee, and submitted to the Queen in council for 
 approval. The order made thereupon is the last proceeding 
 in the case and the judicial rights of the parties are there- 
 by finally determined. 
 
 THE SUPREME COURT OF CANADA. 
 
 This court is the highest court of appeal within Canada, 
 and entertains appeals, civil and criminal, within and 
 throughout the Dominion from the last court of resort in 
 the provinces. By consent of the parties appeals may be 
 directly made from a superior court, and by leave the court 
 may hear an appeal from any decree, decretal order, or 
 order made by a court of equity, or in an equity proceeding, 
 or any final judgment of the superior courts, other than 
 those of Quebec, without intermediate appeal to such last 
 provincial court, providing the case originally commenced 
 in such superior court. In certain cases in election peti- 
 tions an appefil in the same way will lie to this court. In 
 equity cases, and in proceedings in the nature of equity, 
 
 (p) Some years ago it was discussed in England whether a dissenting 
 member of the committee could declare his dissent. A great deal of 
 learning and historical research were expended on another question out 
 of which this arose, that is, whether or not the judicial committee of 
 the privy council is a court at all, or merely a consultative body. If a 
 court, then each member would have the right to express a dissenting 
 opinion or judgment ; but if the usages and traditions of the privy 
 council were to govern, then there could be no dissent, at least in 
 expression. 
 
THE COtrilTS. 189 
 
 an appeal will lie to this court even from orders made in 
 the exercise of judicial discretion. The court can also hear 
 special cases, review judgments on points reserved at the 
 trial, on motions for a new trial, on motions to set aside 
 an award, on applications in habeas corpus, mandamus, or 
 municipal by-laws. It entertains appeals from the 
 exchequer courts, the maritime court of Ontario, and 
 cases under the Dominion Elections Act and the Winding- 
 up Act. 
 
 The intention of the Act establishing the supreme and 
 exchequer courts is that all orders, decretal orders, decrees 
 and decisions of any superior court made in any such cause, 
 matter or other judicial proceeding in equity, or in any 
 action, cause, suit, matter or other judicial proceeding in 
 the nature of a suit or proceeding in equity, are and always 
 have been proper subjects of appeal to this court. 
 
 In Quebec cases, the appeal must always come from the 
 Court of Queen's Bench ; and the matter in controversy 
 must be at least $2,000, unless it involves the validity of a 
 dominion or local Act of the legislature or of any Act or 
 ordinance of the territories or districts of Canada, or any 
 fee of ofl&ce, duty, rent, revenue, or any sum of money pay- 
 able to her Majesty, or any title to any lands or tenements, 
 or annual rents, if brought in the court mentioned. 
 
 The court has jurisdiction in criminal as well as in civil 
 matters ; but in respect of any indictable offence, no appeal 
 is allowed, if the judgment of the lower court was unani- 
 mous in affirming the conviction. 
 
 This court of last resort in the provinces does not mean 
 the individual judges who may be authorized to sit in these 
 courts, but the tribunals from which the' appeals are to 
 come, or the respective courts themselves, without reference 
 to the number of judges ; provided always the court be duly 
 
190 GOVERNMENT IN CANADA. 
 
 constituted by the presence of a sufficient number of judges 
 to make a legal court, whatever that number may be. (/) 
 The judgment of two or even of one judge, where the courts 
 may be constituted of these numbers respectively, is not 
 appealable. An appeal lies only where there is a dissenting 
 judgment in the court appealed from, (g) 
 
 No appeal lies to this court from the judgment of a court 
 granting a new trial on the ground that the verdict was 
 against the weight of evidence — ^^that being a matter of 
 discretion, {h) 
 
 The Governor -General may refer any matter to the 
 judges of the supreme court for hearing or consideration, 
 and they shall certify their opinion thereon to the Governor 
 in Council ; and either house of parliament may refer any 
 private bill or petition thereto. 
 
 Controversies arising between the Dominion and the pro- 
 vinces, or between the provinces themselves, may, with the 
 consent of the provinces, be determined by the supreme or 
 the exchequer court of Canada. The province of Ontario 
 has placed herself within this jurisdiction by enacting that 
 the supreme court may entertain controversies between the 
 Dominion and the provinces, and also controversies between 
 Ontario and any other province submitting to the jurisdic- 
 tion of the court. In such actions and proceedings in On- 
 tario, where the parties thereto by their pleadings raised 
 the question of the validity of any Dominion or provincial 
 Act, if in the opinion of the judge the question is material, 
 the case may be ordered by the judge, either with or with- 
 out the request of the parties, to be removed to the supreme 
 court. 
 
 ( f) Per Mr. Justice (now Chief Justice) Sir Wra. Eitchie in Amer v. 
 The Queen, 2 S. G. 592. 
 
 (g) Mr. Justice Taschereau in the same case. 
 
 {h} Boak V. The Merchants' Marine Insurance Co., 1 S. C. 110. 
 
THE COURTS. 191 
 
 The court, or any of its judges, has original jurisdiction 
 in habeas corpus cases ; and has the same power to bail, 
 discharge or commit the prisoner as any court oi' judge in 
 the provinces having jurisdiction iu such matters, (i) 
 
 The court, or any judge, may also order the issue of a 
 writ of certiorari to bring up papers or proceedings necessary 
 with a view to any enquiry, appeal, or other proceeding 
 before such court or judge. 
 
 The supreme court sits three times a year ; on the third 
 Tuesday of February, the first Tuesday in May, and the 
 fourth Tuesday in October, at Ottawa, and is presided over 
 by a chief justice and five associate judges, who hold office 
 during good behaviour. Any five of the judges are com- 
 petent to hold court in terin. The judges are incapable of 
 holding any office of emolument under the Dominion or 
 provincial governments. 
 
 Rules in relation to appeals are laid down by order in 
 council, and the judges of the courts can make rules and 
 orders for the purpose of carrying out the acts establishing 
 this court. All barristers or advocates, attorneys or solici- 
 tors in any of the provinces, shall have the right to 
 practise as counsel, solicitors, etc., in this and in the 
 exchequer court ; and all such practitioners are officers of 
 these courts. 
 
 A registrar and reporter of the court are appointed bj' 
 the Governor in Council. 
 
 The proceedings in this court are regulated by rules 
 approved of by the court. 
 
 The first proceedings in appeals, after the notice of appeal 
 is given and the security perfected, is the filing of a case 
 
 (i) No appeal is allowed in any case of proceedings for or upon a writ 
 of habeas corpus arising out of any claim for extradition made underany 
 treaty. B. S. C. cap. 135, sec. 31. 
 
192 GOVERNMENT IN CANADA. 
 
 stated by the parties, setting forth the judgment objected to 
 and so much of the pleadings, evidence, affidavits and 
 documents as may be necessary to raise the question for 
 the decision of the court. The case must also, if possible, 
 contain a transcript of all the opinions or reasons delivered 
 by the judges in the courts below ; and must be accompanied 
 by a certificate that proper security to the extent of |500 
 has been given by the appellant in the court appealed 
 from. 
 
 Twenty-five copies of the case are printed in a prescribed 
 form, and these, with certified copies of original documents, 
 deposited with the registrar of the court. Notice of hearing 
 is served at least a month before the next session of the 
 court, at which time each party deposits in court copies of 
 the factum or points for argument in appeal. This con- 
 tains a concise statement of facts, the points of law and the 
 arguments and authorities in the case, and is printed and 
 distributed in the same way as the case or appeal. They 
 are put in under seal and when dejDosited are exchanged 
 with the opposite party. When the rules of court are com- 
 plied with the appeals are set down for hearing, and the 
 case is heard with not more than two counsel for each side 
 — one only in reply. These rules do not apply to criminal 
 appeals or to habeas corpus cases, in which a certified 
 written case is all that is necessary in order to bring them 
 before the court. In election appeals the record or the 
 necessary part of it is printed under the direction of the 
 registrar of the court, but each factum is prepared just as 
 in ordinary cases, {j) 
 
 (J) In Ontario, a sufificient number of appeal books are printed for the 
 court of appeal and for the supreme court at Ottawa, when the appeal 
 is prepared in the first instance. When the judgments of the court of 
 appeal for Ontario are given, the unsuccessful party can have these 
 printed and added to the appeal books, making the necessary alterations 
 in the title and index, and use this for the supreme court at Ottawa. 
 The /ac*«m is prepared, but the case is entered with much less expense 
 in printing. 
 
THE COURTS. 193 
 
 THE EXCHEQUER COURT OF CANADA. 
 
 The Act of 1875 establishing the supreme and exchequer 
 courts of Canada has, so far as the latter court is concerned, 
 been superseded by the Act of 1887. The court of ex- 
 chequer is continued under its former name but its judge 
 is not one of the judges of the supreme court and the court 
 is completely detached from that court. The practice and 
 procedure of the exchequer court are regulated by the 
 practice and procedure, so far as they are applicable in 
 similar suits, in the high court of justice in England. The 
 court has exclusive jurisdiction in the following matters : — 
 
 Every claim against the crown for property taken for 
 any j)ublic purpose. 
 
 Every claim against the crown for damage to property, 
 injuriously affected by the construction of any public work. 
 
 Every claim against the crown arising out of any death 
 or injury to the person or to property on any public work, 
 resulting from the negligence of any officer or servant of 
 the crown while acting within the scope of his duties or 
 employment. 
 
 Every claim against the crown arisipg under any law 
 of Canada or any regulation made by the Governor in 
 Council. 
 
 Every set-off, counter claim, claim for damages, whether 
 • liquidated or unliquidated, or other demand whatsoever, 
 on the part of the crown against any person making claim 
 against the crown. 
 
 It has concurrent jurisdiction 
 
 , In all cases relating to the revenue in which it is sought 
 
 to enforce any law of Canada, including actions, suits and 
 
 o.'s.G.c. 14 
 
194 GOYEENMEKT IN CANADA. 
 
 proceedings by way of information to enforce penalties, 
 and proceedings by way of information to information in 
 rem and as well in qui tarn suits for penalties or forfeitures 
 as when the suit is on behalf of the crown alone. 
 
 In all cases in which it is sought at the instance of the 
 attorney-general of Canada, to impeach or annul any patent 
 of invention, or any patent, lease, or other instrument 
 respecting lands. 
 
 In all cases in which demand is made or relief sought 
 against any officer of the crown for anything done or 
 omitted to be done in the performance of his duty as such 
 officer. 
 
 In all other actions and suits of a civil nature at common 
 law or equity in which the crown is plaintiff or petitioner. 
 
 The court sits at any place in Canada, and the sheriffs 
 and coroners of the different counties are officers of this 
 court. In Ontario a judge of the exchequer court had, in 
 regard to the use of the court house and other buildings set 
 apart in the county for the administration of justice, the 
 same authority in all respects as a judge at 7usi prius. 
 
 Execution can issue out of this court to enforce its own 
 decrees — the writs issuing in the name of the judge, and 
 its process runs throughout Canada. 
 
 There are the usual officers appointed for this court, (k) 
 
 THE MARITIME COURT OF ONTARIO. 
 
 The parliament of Canada has established a superior 
 court of maritime jurisdiction in the province of Ontario 
 and conferred on it all such jurisdiction as generally be- 
 longs to any existing British vice-admiralty court in similar 
 
 (k) This Act is not yet in force, 50-51 Vic. cap. 16. 
 
THE COUETS. 195 
 
 matters within the reach of its process. It has to deal with 
 matters of contract and of tort, proceedings in rem and in 
 personam, arising out of or connected with'navigation, ship- 
 ping, trade or commerce on any river, lake, canal or inland 
 water, of which the whole or part is in the province of 
 Ontario. It has jurisdiction touching the ownership, posses- 
 sion, employment or earnings of ships. The corresponding 
 court in the lower province is the vice-admiralty court at 
 Quebec. (Z) 
 
 The county judge of the County of York residing at 
 Toronto is the judge in this court. All barristers and ad- 
 vocates may plead in this court and solicitors when prac- 
 tising therein are known as proctors of the court. The 
 practice follows, as far as is applicable, the instance side of 
 the high court of admiralty in England. 
 
 An appeal lies from the maritime court of Ontario to the 
 supreme court of Canada. 
 
 (/) See article " Vioe-admiralty juriadiction,'' by Mr. Lash, Q.C. and, 
 Mr. R. G. Cox, in the Canadian Law Times, Vol. VII, page 21. 
 
196 GOVERNMENT IN CANADA. 
 
 CHAPTER XVIII. 
 
 PROVINCIAL COURTS, CIVIL PROCEDURE, OFFICERS OF THE LAW. 
 
 Procedure in civil matters belongs to the provinces — In 
 criminal matters to the Dominion. — Want of uniformity 
 in laws and procedure as to property and civil rights, old 
 divisions of English courts, appeal courts — Equity and 
 common law covrts, cases heard in first instance, superior 
 and inferior courts — Object of procedure and pleadings 
 — Writs, statements, record, issue, — Trial, verdict, exe- 
 cution — Officers of the law, attorneys, solicitors, counsel, 
 notaries, sheriff's, coroners. 
 
 THE COURTS. 
 
 By the 14th sub-section of section 92 of the B. N. A. 
 Act: 
 
 The administration of justice in the provinces, including 
 the constitution, maintenance, and organization of provin- 
 cial courts both of civil and criminal jurisdiction, and 
 including procedure in civil matters in these courts, forms 
 a class of subjects within the exclusive control of the pro- 
 vincial legislatures. The 27th sub-section of section 91 
 allots " the procedure in criminal matters " to the parlia- 
 ment of Canada. The provinces having therefore to deal 
 with procedure in civil matters, it is to be expected that 
 there will be great diversity in civil trials. There is not 
 much uniformity in the provincial laws ; but the framers 
 of the Act were in hopes that the English speaking provin- 
 ces might make provision for uniform laws as to property 
 
PROTINCIAL C0UKT8, CIVIL PROCEDURE, ETC. 197 
 
 and civil rights, and they accordingly inserted a section to 
 meet that expectation, (a) In Quebec where the old 
 French law — the Coutume de Paris is the basis of all civil 
 matters, and where a code obtains as to procedure, with no 
 great likelihood of any change, the Act is silent as to the 
 prospect of uniformity or as to the prospect of the judges 
 for that province being appointed from the bar of any other 
 province, (b) The remaining provinces have a system of 
 laws and a procedure and practice founded on English law ; 
 and it may be possible to give the unprofessional reader 
 some idea of the courts and of the general procedure in a 
 civil case such as .obtains in England and in some of the 
 provinces. 
 
 In all the provinces there is some ultimate court of 
 appeal to which suitors who are not satisfied with the 
 decisions of the superior courts of law and equitj' can resort 
 for a more authoritative disposition of their cases. This 
 corresponds to the house of lords court in England, which 
 hears and determines appeals from the English courts. 
 Formerly there were three common law courts, the Queen's 
 bench, the common pleas and the exchequer court, aud one 
 court of equity called the high court of chancery. The 
 exchequer court was not usually transplanted into the colo- 
 nies but the other three were generally reproduced. The 
 colonial courts of appeal were sometimes composed of the 
 judges of all the superior courts sitting as one court, and 
 sometimes composed of other judges as is the present court 
 of appeal for Ontario. An appeal lay from these courts of 
 ultimate authority in the province to the judicial committee 
 in England, the ultimate authority for such matters in the 
 empire. The provincial courts of appeal do not as a rule 
 entertain cases in the first instance — except some election 
 
 (a) Sec. 94. 
 
 (b) See. 97 and 98. 
 
198 GOVERNMENT IN CANADA. 
 
 I 
 
 petitions ; they sit to determine appeals from lower courts. 
 The superior courts of law and equity in Ontario, following 
 the analogous legislation in England, have been merged 
 into one high court of justice with divisions in it named, 
 after the time-honored nomenclature of Queen's bencli, 
 chancery and common pleas, and with changes very impor- 
 tant in the constitution of these courts. Formerly the 
 chancery court had its own special work ; equity as distin- 
 guished from law was a source of perplexity in procedure 
 and interposed a division of some sort in the administration 
 of common justice. Anciently in England the common 
 pleas heard civil disputes only ; the Queen's bench criminal 
 matters exclusively, and the exchequer court concerned 
 itself solely with the revenue. Many of these distinctions 
 have been removed, and generally each of these divisions 
 has now the power of any one of them. These are the 
 superior courts — they sit for the whole province or country, 
 and two or more judges sit in term, at stated times in the 
 year, to review cases heard in the first instance by a single 
 judge. The court, wherever a case is heard in the first 
 instance before a single judge and with or without a jury, 
 is properly known as the assize court, or the court of nisi 
 prius. (c) Erom the fact that the criminal cases are heard 
 at the same time and place and the gaol emptied, this 
 
 (c) In England the court of assizes was a court of 12 judges — three 
 from each of the four divisions already mentioned — empowered to try 
 twice in the year in their respective circuits, all causes civil and criminal 
 in eVery county in England, except London and Middlesex only. There 
 were six circuits, and two judges were appointed for each. Under the 
 commission of assize they too^ the verdicts of a peculiar species of jury 
 called an assize, and summoned for the trial of landed disputes. The 
 judges sat as well under four other commissions. (1) A court of gaol 
 delivery. (2) The session of the peace. (3) The court of oyer and 
 terminer and (4) The court of nisi prius. The first of these and the court 
 of oyer and terminer dealt with criminal cases, to deliver prisioners, and 
 to "enquire, hear and determine" all treasons, felonies and misdemea- 
 nors on indictment found at the same assize. The session of the peace 
 was held four times in the year, hearing oases under authority of Acts 
 of parliament and the commission of the peace. Several justices may 
 sit in this and in the court of oyer and terminer but there must be one 
 
PEOVINCIAL CODKTS, CIVIL PROCEDURE, ETC. 199 
 
 court is also called the court of oyer and terminer and 
 general goal delivery. In these courts the evidence is 
 heard and the judgment or verdict or sentence rendered or 
 pronounced at the time. The courts in term sit in review 
 of the decisions thus arrived at ; the provincial court of 
 appeal, or the supreme court of Canada at Ottawa may 
 review the judgments of the court in term. 
 
 Besides these courts of general jurisdiction there are 
 county courts having to deal with local cases of less im- 
 portance ; and there are also smaller courts graded down 
 to those of justice of the peace or police magistrate who 
 have jurisdiction over a few civil matters. These courts 
 are of inferior jurisdiction and they are in most cases con- 
 trolled in a modified way by the superior courts. Writs 
 may issue out of the superior courts directing the lower 
 courts by mandamus to do certain things, or by prohibition 
 to refrain from taking certain steps, or by procedendo to 
 continue in the prescribed course. These extraordinary 
 remedies are however very rarely resorted to, both because 
 the lower courts keep within their own constitutions and 
 duties, and the other court's will not interfere unless in the 
 plainest cases. The county courts and their judges also 
 hear criminal cases of a less grave nature than those tried 
 at the assizes — these are the quarter sessions or the general 
 sessions of the peace or the county judge's criminal court. 
 
 of the quorum in each court. This was the origin of the phrase " justices 
 of the quorum," -the commission being addressed to the assize judges one 
 whom would take the particular circuit. In London and Middlesex 
 the commission of assize directed the trial of all matters in dispute at 
 "Westminster Hall, and a writ of nisi prius, (unless before) was attached 
 to the commissioii. This commission called upon all suitors in the 
 kingdom to repair thither for the disposition of these oases, unless 
 before a certain day, a court for the trial would be held in the circuit 
 towns. The court held in the circuits in this way was the court of nisi 
 prius, and it dates back to the 13th year of Edward I. Formerly there 
 were nine courts of common law ; the same number of ecclesiastical 
 courts ; fourteen courts of special jurisdiction ; sixteen of criminal juris- 
 diction ; besides equity, military and maritime courts. 
 
200 GOVERNMENT IN CANADA. 
 
 But at the eessions justices of the peace may and do sit 
 with the county judge for the disposal of offenders. 
 
 These are the courts for all purposes, and for all laws ; and 
 the provincial legislatures have control over their constitu- 
 tion maintenance and organization . The Dominion govern- 
 ment controls the criminal procedure ; that will be referred 
 to in the next chapter. A word or two may be said of 
 procedure in civil matters ; but as it varies in all the 
 provinces, only a few general features can be referred to. 
 
 PROCEDURE. 
 
 The procedure in any action is the mode by which the 
 dispute between two or more parties is brought into court 
 to be tried and settled. The case of each side is set out in 
 what is called a pleading ; these pleadings come into court 
 in the form of a record — which is the guide of the presiding 
 judge as to the matter in dispute. To get the parties be- 
 fore the court with a fall and complete statement of their 
 claims and defences is the object of all pleadings; and it 
 is substantially the same under every form of procedure 
 though the practice of the courts in each particular, may 
 be as different as can be imagined. In the old chancery 
 procedure the plaintiff formulated all his charges and 
 grievances against the defendants in an elaborate document 
 called a bill of complaint, depositing one copy with the 
 court for the hearing and serving others on the defendants. 
 The defendants replied on oath by an equally elaborately 
 worded answer, and if the parties were at issue they went 
 to trial. That mode of proceeding has almost disappeared 
 and the procedure now begins generally with a writ of 
 summons containing the substance of the plaintiff's claim, 
 and calling on the defendant to appear within so many 
 days. When the appearance is entered the plaintiff files 
 and serves a statement of claim and the defendant simi- 
 
PROVINCIAL COURTS, CITIL PROCEDURE, ETC. 201 
 
 larly formulates his defence. When they are at issue on 
 questions of law or of fact, the case is tried before some 
 judge of one of the courts and a judgment entered, upon 
 which the successful party is entitled to get the relief which 
 the court has afforded him. The unsuccessfur litigant has 
 generally the right to appeal. If the amount at stake is 
 considerable or if any principle of law is involved, he can 
 usually go to the ultimate court in his own province and 
 then to the supreme court or to the judicial committee of 
 the privy council in England. 
 
 The practice and procedure in bringing any case to trial, 
 are too elaborate to admit of any generalization beyond 
 what has been already given. The necessary parties, the 
 proper court, the valid legal claim or defence, the language 
 in which it is presented to the court, are some of the 
 difficulties in the procedure of a civil case : but assuming 
 that a plaintiff has a good claim in law and that it is not 
 negatived by some valid objection on the part of the defend- 
 ant, the action would proceed generally in the manner 
 indicated, until the final court was reached. The successful 
 party then obtains payment of his claim or the performance 
 of such duty as he was entitled to either by the submission of 
 the opposing party, or through process by the sheriff. 'I'his 
 process is a writ either of execution to sell goods and lands, 
 or a writ of possession, or of assistance, or as the nature 
 of the jud,graent or decree or order of the court may direct. 
 
 Every person is allowed to conduct his own case in per- 
 son either as plaintiff or as defendant ; to issue bis own writ 
 or appear to one issued against him ; he can prepare and file 
 his pleadings and go into court and argue his own case. 
 In other words he can be his own attorney or solicitor, and 
 counsel, (d) But no one is allowed to act thus for another 
 
 (d) It was usual to speak of an attorney in actions at iaw and solicitor 
 in chancery cases ; solicitor is the term now in Ontario. 
 
202 GOVERNMENT IN CANADA. 
 
 unless he is a member of the legal profession. He is then 
 an officer of the court, and subject to its summary jurisdic- 
 tion. He must be declared by some law society specially 
 charged with that task, to be duly qualified for such 
 duties. 
 
 The different provinces of the Dominion make their own 
 regulations under legislative authority as to who are and 
 who are not legally qualified practitioners, and their powers, 
 duties and obligations. Eeference will here be made to the 
 chief officers of the law engaged in the prosecution of a 
 suit civil or criminal, and to such persons as are entrusted 
 with the execution of the process of the courts. 
 
 OFFICERS OF THE LAW. 
 
 In Ontario the treasurer and benchers of The Law Society 
 of Upper Canada form a corporation ; and they and their 
 successors in office regulate the government of the society, 
 the appointment of officers, the legal education of students 
 and the term of studentship, and the admission of appli- 
 cants as barristers-at-law or as attorneys and solicitors into 
 the law society. The benchers have the appointment of 
 reporters to the superior courts, and fix the amount of their 
 salaries. 
 
 No one can practise at the bar in Her Majesty's courts 
 of law or equity in Ontario unless he has been entered 
 and admitted into the law society under its rules as a 
 barrister. 
 
 The attorney-general for the Dominion ranks first in 
 precedence in the Ontario bar, then the attorney-general 
 for the province, then previous attorney- generals according 
 to seniority of appointment. After these solicitor-generals 
 and such Queen's counsel as, were appointed before con- 
 
PROVINCIAL COURTS, CIVItj PROCEDURE, ETC. 203 
 
 federation, in the same order. Other members rank in the 
 order of the call to the bar. (e) 
 
 Attorneys and solicitors are admitted into the law society 
 under rules similar to those for barristers, and must 
 not practise without paying an annual fee and obtaining a 
 certificate. They may be struck off the roll of any of the 
 courts by a superior court judge on application being 
 made in a proper case. It is usual to speak of members of 
 the legal profession as attorneys when conducting actions 
 or suits in the common law courts, and solicitors in the 
 chancery or insolvency courts. In the maritime court 
 they are styled proctors. The profession of barrister in 
 Ontario, though not so distinct as in England* from 
 the office of solicitor or attorney, is yet separate from the 
 latter. Generally barristers here are members of both 
 professions — if indeed there can be said to be two profes- 
 sions in the province. A number of solicitors, however, are 
 not barristers, and therefore not entitled to plead in court. 
 On the other hand, a barrister who is not an attorney or 
 solicitor as well, is not privileged to act in any other capacity 
 than that of arguing in court the cases which the attorneys 
 or solicitors prepare tor him. The judges of the superior 
 courts are selected from barristers of at least ten years 
 standing. In other courts the length of time varies with 
 the court. 
 
 In Quebec all advocates, barristers, attorneys, solicitors 
 and proetors-a.t-law, form a corporation called The Bar of 
 the Province of Quebec. (/) A certain number of officers of 
 each of the sections into which the corporation is divided 
 constitutes a council with powers somewhat analogous to 
 
 (e) The appointment of Queen's counsel is now left to tlie Dominion 
 government— that is, the provincial authorities are not in the habit of 
 making such appointments. See ante page 35. 
 
 (/) See Act of 1886 of Quebec, consolidating the law on this subject. 
 
204 GOVERNMENT IN CANADA. 
 
 the Law Society of Upper Canada. They entertain mat- 
 ters, however, among the members of the profession not 
 dealt with in Ontario by the Law Society, noticeably the 
 pronouncing of censures, through the Bdtonnier, for any 
 breach of discipline or action derogatory to the honour of 
 the bar. Members may be suspended by this officer, sub- 
 ject to approval of the council. Notaries public in Quebec 
 form a separate profession, being divided into a number of 
 bodies corporate under Acts very similar to those relating 
 to the bar of the province. Their duties not only embrace 
 the certifying and protesting of documents, but includes 
 nearly all of what is understood in English practice \>y 
 conveyancing. In Ontario a notary public is appointed by 
 the Lieutenant-Governor, and may protest bills of exchange 
 and promissory notes ; and may draw, pass, keep and 
 issue all deeds and contracts, charter parties, and other 
 mercantile transactions in this province, may give certifi- 
 cates as to copies of instruments, and has some other 
 undefined duties. They form no profession and are part 
 of none, though the commission is usually granted to mem 
 hers of the legal profession as of course. Any person not 
 a barrister or attorney must, however, pass an examination 
 as to his qualification for the office before his countj^ 
 judge, or before some one appointed for that purpose by the 
 Lieutenant-Governor, and produce a certificate that on 
 examination he is found qualified for the office ; and further, 
 that in the examiner's opinion a notary public is needed in 
 the place where the applicant intends to carry on business. 
 Formerly they could administer oaths or affirmations only 
 under certain statutes ,- usually the courts of Queen's Bench 
 and Common Pleas appoint commissioners for taking affi- 
 davits for this purpose, who have power within the county 
 in which they reside. Under the Ontario Act of 1885 
 (cap. 16), all notaries public now appointed or to be ap- 
 pointed hereafter have all the powers of commissioners to 
 
PROVINCIAL COUETS, CIVIL PEOCEDURE, ETC. 205 
 
 take affidavits and declarations in all courts in any part of 
 the province. They are now officers of the high court of 
 justice for Ontario. 
 
 Sheriffs are officers of the courts appointed by the 
 Lieutenant-Governor under the great seal, one for each 
 county, and hold office during pleasure. This office is one 
 of the oldest and most honourable in the gift of the crown. 
 Formerly he held a court for his shire or county, and the 
 word sheriff means a reeve of the shire. He attended the 
 King's court and looked after the peace of the county. He 
 is yet the chief executive officer of the courts, attends the 
 judge in circuit, summons the juries, has charge of the 
 gaols, and executes all writs and sentences of the courts up 
 to the execution of a criminal — the extreme penalty of the 
 law. Where the sheriff is personally interested in a case, 
 or where he cannot or will not execute the process of the 
 court, the writs may be addressed to the principal coroner 
 of the county, (g) 
 
 (g) See Of&oe of Coroner, etc., post. 
 
206 GOVEBNMENT IN CANADA. 
 
 CHAPTER XIX. 
 
 PBOCEDUEE DEFINED BY THE DOMINION PABLIAMENT CRIMINAL 
 
 LAW AND ITS OFFICEBS. 
 
 Criminal law, Ontario, Quebec, etc — Information, inquisition, 
 presentment — Criminal information, leave to file — Pro- 
 cedure to trial, accusation, evidence, committal — Grand 
 jury, bill, petit jury, trial, sentence — Extradition — 
 Justices of the peace, ex officio justices, summons, 
 warrant, conviction, certiorari, committal, felony, police 
 magistrates — Coroners, appointment, functions, inves- 
 tigation, jury, finding, committal, inquisition — County 
 attorney, duties — Crown counsel. 
 
 CBIMINAL LAW AND PBOCEDDBE. (a) 
 
 The criminal law of Canada is defined by the Acts of 
 the Dominion parliament construedby the common law of 
 England. In Quebec it is the criminal law of England as 
 introduced in 1763 and re-affirmed in 1775 ; in Ontario it is 
 the criminal law of England as it stood on the 17th Sep- 
 tember, 1792 ; in British Columbia it is the criminal law of 
 England as it stood on the 19th November, 1858 ; except as 
 the same may have been modified by the respective legis- 
 
 (a) Since the repeal of the insolvency laws this is the only subject where 
 the procedure is not regulated by the provincial laws — except Dominion 
 controverted election cases and such proceedings as may be in an appli- 
 cation for a divorce before the senate. Cases relating to bills of exchange 
 and promissory notes, interest, legal tender or bixnks, are not regulated 
 by procedure different from the ordinary civil procedure. The jurisdio- 
 tion of the miritime and exchequer courbs has been referred to and also 
 the original jurisdiction of the supreme court of Canada. 
 
PROCEDUKE DEFINED BY THE DOMINION PAELIAMENT, ETC. 207 
 
 latures of the said provinces before the same formed 
 provinces of Canada (b). In the other provinces the law 
 of England was introduced at different periods before con- 
 federation, though it is not so evident that its introduction 
 was effected in the same way as in the three provinces 
 mentioned. In Manitoba, the criminal law of Canada was 
 introduced by various provisions since 1870. 
 
 The procedure in criminal law is directed by Acts of the 
 Dominion parliament, and is generally uniform in its 
 application to all the provinces ; but the Dominion Acts 
 recognize differences in certain cases, founded generally on 
 differences of procedure having existed before the provinces 
 formed provinces of the union. 
 
 In criminal trials, as it is the public that is wronged, the 
 action is said to be brought bj the Queen or King against 
 the accused. The case under our statutes is commenced 
 either on information laid before a justice of the peace, or 
 police magistrate, the inquisition of a coroner's jury or the 
 presentment of a grand jury. 
 
 A criminal information, on leave being obtained, may be 
 filed in any of the superior courts of original jurisdiction 
 for misdemeanors only, in cases of general public impor- 
 tance, or, as affecting libellously upon some high public 
 functionary or body. Informations of this latter class it is 
 the tendency of the courts of Ontario to discourage. 
 
 A criminal information known as an information ex 
 officio may be filed by the attorney-general without leave of 
 the court against an offender in all cases of misdemeanor 
 immediately affecting the Queen or her government. No 
 criminal information will lie in regard to a felony or high 
 treason. The procedure only applies to those misdemeanors 
 
 (6) Revised Statutes, D. page 138, -sections 1 and 2. 
 
208 aOVEENMENT IN CANADA. 
 
 upon, which an indictment would lie before a justice of the 
 peace. Leave to file a criminal information rests in the 
 discretion of the court, and is a proceeding of an extraor- 
 dinary character in criminal matters. In England it is 
 granted when the matter complained of "is of public impor- 
 tance, and that a speedy remedy is desired and necessary ; 
 or where some important official or superior person is the 
 subject of grave charges ; but the tendency of the courts 
 here would seem to be to discourage the practice of granting 
 leave for such informations. It is the only instance where 
 proceedings are begun in a superior court of justice. 
 
 When an indictable offence is laid before a justice of the 
 peace, if the evidence is sufficient to put the accused on his 
 trial, the justice must either send him to gaol to await the 
 next sitting of the court or admit him to bail. 
 
 A number of cases are also sent up to the county crown 
 attorney or other officer from the coroners of the different 
 counties, (c) 
 
 In cases where manslaughter or murder has been com- 
 mitted, the coroner empanels a jury, and their verdict or 
 inquest is transmitted to the crown attorney as in the case 
 of justices' committals. The county attorney, or whoever 
 the proper official may be, attends with these informations 
 and inquisitions at the next sitting of the court of compe- 
 tent jurisdiction and prefers them to the grand jury for 
 their opinion as to whether or not the evidence is sufficient 
 to put the accused on his trial. 
 
 A grand jury is composed of not less than twelve or not 
 more than twenty-three persons selected to be grand jurors ; 
 
 (c) In oases of murder or manslaughter upon a verdict incriminating 
 any person by a jury empannelled by a coroner, the party charged may 
 be tried with the same effect as on an indictment found by a grand jury 
 against liim. 
 
PKOCEDUEE DEFINED BY THE DOMINION PAELIAMENT, ETC. 209 
 
 and their duty is to judge whether the prisoner ought to be 
 put on his trial or not. 
 
 In certain cases, such as perjury, subornation of perjury, 
 conspiracy, obtaining money or other property by false 
 pretences, keeping a gambling house, keeping a -disorderly 
 house, or any indecent assault, no presentment to or finding 
 by the jury is made without the, person making the accu- 
 sation first giving a bond to prosecute or give evidence in 
 the matter ; unless the accused is committed, or is in cus- 
 tody, or that the indictment is preferred by the attorney or 
 solicitor-general of the province, or by a judge competent 
 to give such a direction or try the offence. 
 
 The grand jury judge nothing of the guilt or innocence 
 of the accused ; that is left to another jury. In the fintJing 
 which the grand jury makes to the presiding judge, if in 
 their opinion the accused ought to be put on his trial they 
 write " true bill " on the back of the information or inqui- 
 sition ; and if not they write " no bill," and the accused is 
 discharged without trial, but not properly until the court is 
 about to rise. 
 
 The grand jury also presents a statement in reference to 
 the state of the county jails, asylums, etc., which is called 
 a presentment, and in this they can take notice of certain 
 crimes and have the accused put on his trial ; but such 
 presentments are by no means necessary. 
 
 After the grand jury brings in a true bill the accused 
 pleads guilty or not guilty ; or in the event of his silence, 
 the court can plead not guilty for him. 
 
 In capital offences the accused can object to or challenge 
 
 not more than twenty jurors. In other cases of felony not 
 
 more than twelve jurors, and in all other cases four jurors. 
 
 These may be objected to without any reason given. Any 
 
 o's.G.c. 15 
 
210 GOVERNMENT IN CANADA. 
 
 number may be objected to on cause assigned. The crown 
 has the right to challenge four jurors peremptorily, and 
 has also the right to cause any juror to stand aside until 
 the panel has been gone through, and has the same rights 
 as the accused as to challenge for cause. In the provinces 
 of Quebec and Manitoba there are special provisions where- 
 by the person accused in certain cases may be tried by a 
 jury half English and half French (d). 
 
 The accused, after the close of the case for the crown, 
 can make full answer and defence to any indictment pre- 
 ferred against him, and be heard by his counsel on his 
 behalf. But the modern practice permits the accused, in 
 addition to the defence by counsel, to give any explanation 
 to the court which he may think proper, and usually before 
 counsel representing the crown has summed up the whole 
 case. 
 
 The judge, on the finding of the jury, sentences the 
 accused or discharges him as the case may be. From this 
 there is no appeal. The judge may reserve any question of 
 law to any of the superior courts. But in case the judge 
 refuses to reserve a point of law, or could not have reserved 
 it, a writ of error may issue so as to bring the matter under 
 the consideration of superior courts If the conviction is 
 .bad for any cause, the whole trial is a nullity, and a new 
 trial may be granted in such cases. In the absence of 
 reprieve or pardon by the crown the sentence of the law is 
 ■carried out by the various punishments of death, imprison- 
 ment, etc., provided by the statutes in that behalf. 
 
 The appeals to the supreme court, as well as the exercise 
 of pardon, have been adverted to heretofore. 
 
 (d) B. S. D. cap. 168, aeo. 166-67. 
 
PROCEDURE DEFINED BY THE DOMINION PARLIAMENT, ETC. 211 
 
 In cases of offences committed in a foreign state when the 
 guilty parties have taken refuge in Canada, the extradition 
 Act, E. S. C, governs the classes of crimes for which the 
 two governments subject to any extradition arrange- 
 ment, have agreed to hand over the offenders. These are 
 as follows : 
 
 (1.) Murder, or attempt or conspiracy to murder; 
 
 (2.) Manslaughter ; 
 
 (3.) Counterfeiting or uttering counterfeit money ; 
 
 (4.) Forgery; 
 
 (5.) Larceny; 
 
 (6.) Embezzlement ; 
 
 (7.) Obtaining money or goods under false pretences ; 
 
 (8.) Crimes against bankruptcy or insolvency law ; 
 
 (9.) Fraud by bankers, agents, trustees, directors and 
 officers of companies, etc. ; 
 (10.) Rape ; 
 (11.) Abduction ; 
 (12.) Child stealing; 
 (lb.) Kidnapping; 
 (14.) False imprisonment ; 
 (15.) Burglary, housebreaking or shopbreaking ; 
 (16.) Arson; 
 (17.) Eobbery; 
 
 (18.) Threats with intent to extort ; 
 (19.) Perjury or subornation of perjury ; 
 (■20 ) Piracy on board or against a vessel of a foreign state ; 
 (21.) Criminal scuttling or destroying such a vessel at sea, 
 
 or attempting or conspiring to do so : 
 (22.) Assault oa board such vessel, with intent to destroy 
 life or do grievous bodily harm ; 
 
212 GOVERNMENT IN CANADA. 
 
 (23.) Eevolt or conspiracy to revolt on boari? such a vessel 
 
 against the authority of the master ; 
 (24.) Any offence under either of the following Acts and 
 
 not included in any foregoing portion of this 
 
 schedule ; 
 (a) " An Act respecting offences against the person ;" 
 (fc) " The Larceny Act ;" 
 (c) "An Act respecting Forgery;" 
 {d) " An Act respecting Offences relating to the Coin ;" 
 (e) " An Act respecting MaHcious Injuries to Property;" 
 (25.) Any offence which is, in the case of the principal 
 
 offender, included in any foregoing portion of this 
 
 schedule, and for which the fugitive criminal, though 
 
 not the principal, is liable to be tried or punished 
 
 as if he were the principal. 
 
 In Ontario, Quebec and Manitoba the Speedy Trials Act 
 provides for trials without jury (and in some cases without 
 consent) for any crimes within the jurisdiction of a court 
 of general sessions of the peace. 
 
 The Summary Trials Act empowers certain magistrates 
 named therein to try offenders in certain felonies and mis- 
 demeanors therein specified, by consent, without the inter- 
 vention of a jury. 
 
 JUSTICES OF THE PEACE. 
 
 One of the prerogatives of the crown is, that the King or 
 Queen is the fountain of justice. In view of this the 
 Sovereign has charge of the peace of the realm ; and in 
 order that peace should prevail, certain magistrates, called 
 justices of the peace, are appointed by commission from 
 the Queen, and the Lieutenant-Governors in council of the 
 provinces have power to appoint such justices. 
 
PROCEDURE DEFINED BY THE DOMINION PAELIAMENT, ETC. 213 
 
 Certain other persons, from the nature of the offices 
 they hold, are quahfied by provincial statutes, to discharge 
 the duties of justices of the peace, such as mayors of cities 
 and towns, aldermen who have qualified themselves for 
 that purpose, and the reeves and deputy-reeves of township 
 and village corporations. The judges of the supreme and 
 exchequer courts of Canada, and the justices of the court 
 of appeal and of the courts of Queen's bench and common 
 pleas and of the court of chancery for Ontario, are some- 
 times said to be justices for the whole of this province ; but 
 it is usual to include them and the county court judge 
 within his county in commissions appointing justices of the 
 peace. The judges of the county courts are also justices 
 of the peace ; and it would appear that the members of 
 the executive council for this province, the attorney- 
 general for the Dominion and the provinces, and in certain 
 cases Queen's counsel, are also justices of the peace by 
 virtue of their office or position. 
 
 Where justices of the peace are appointed by commission 
 by the Lieutenant-Governor they must have, besides the 
 mental qualifications necessary for the importance of the 
 office, some interest in land to the valueof at least $1,200. (e) 
 Unless where specially provided for, no attorney or solici- 
 tor, while practising as such, shall be a justice of the peace; 
 and no sheriff or coroner, acting as such, shall be quallified 
 for this position. Every justice of the peace must take a 
 prescribed oath before fulfilling any of the duties of his 
 office. The authority under which they act is called their 
 commission, and was settled by all the judges in England 
 over five hundred years ago ; so that the office is a very 
 ancient as well as a very honourable one. • 
 
 Each ordinary justice of the peace has a certain district 
 or territory within which his jurisdiction lies ; beyond that 
 
 (c) This seems to apply only to Ontario. 
 
214 GOVERNMENT IN CANADA. 
 
 he has no power. The duties of a justice of the peace are 
 of two kinds : 1st, judicial duties ; and 2nd, ministerial 
 duties. When any person prefers a charge against another 
 before a justice of the peace, the latter may issue a sum- 
 mons or a warrant to apprehend the offender ; the sum- 
 mons being a command to the offender on a certain day, 
 and is for trifling matters or disputes — the warrant being 
 for all serious offences, and is the constable's authority for 
 arresting and keeping the accused in his charge till brought 
 before the justice of the peace. If the summons be dis- 
 obeyed, the justice may issue a warrant to apprehend the 
 offender. 
 
 The justice may require in all cases that the person pre- 
 ferring a charge against another should make his statement 
 on oath. In the cases of perjury, etc., where a bond 
 conditioned on the prosecution and giving evidence is 
 necessary before a bill of indictment should be presented 
 to, or found by, a grand jury, as mentioned in this 
 chapter, a prosecutor desiring to prefer an indictment 
 represehting any of these offences before one or more jus- 
 tices of the peace having jurisdiction in the matter, and who 
 may refuse to commit or bail the person accused, must 
 give his bond or recognizance to the justice or justices that 
 he will prosecute the charge or complaint ; and thereupon 
 the justice or justices must transmit the recognizance, 
 information and depositions, if any, to the proper officer in 
 the same way as if the accused had been committed, 
 
 When a felony or misdemeanor has been committed the 
 charge in the affidavit is called an information, and a war- 
 rant issued. On the accused appearing before the justice, 
 witnesses are examined and the proceedings conducted with 
 the regularity of a court. 
 
 In serious cases where ail indictment would lie against 
 the accused, the statement of the accused is taken down. 
 
PROCEDURE DEFINED BY THE DOMINION PARLIAMENT, ETC. 215 
 
 read over to him, and signed by him. in the presence of the 
 justice, and also signed by the justice himself. When all 
 the evidence is taken, and the case argued by counsel, 
 •when such is necessary or permitted, the justice decides on 
 the case. 
 
 If it is an offence for which the law has given the justice 
 express power by statute to impose a fine or imprison the 
 accused, and that there is sufficient evidence to warrant 
 fine or imprisonment, then the justice summarily convicts 
 the accused. This is called a summary conviction and is 
 regulated by Act of parliament. 
 
 In these cases, if the evidence be insufficient to warrant 
 a summary conviction, or if the justice had no authority to 
 convict, or if for other good reasons the conviction be bad, 
 the superior courts of law, on application being made by 
 the accused, will quash the conviction on a certiorari. An 
 appeal from a summary conviction lies to certain courts in 
 the provinces under procedure defined by the Dominion 
 parliament. 
 
 At the hearing of any appeal under the Act relating to 
 summary convictions, any of the parties to the appeal may 
 call witnesses and adduce evidence, who or which may not 
 hdve been called or adduced at the original hearing. 
 
 No action will lie against a justice of the peace acting 
 within his jurisdiction in the discharge of his duty unless 
 he acted maliciously and without reasonable or probable 
 cause ; and no action can be brought against a justice of 
 the peace except within six months after judgment. In all 
 such cases of summary conviction a justice of the peace 
 acts judicially. 
 
 But a justice of the peace has ministerial duties to per- 
 .form as well as judicial ones. After hearing all the evi- 
 
216 GOVERNMENT IN CANADA. 
 
 dence in a case before him there may be sufficient to justify 
 him in finding the accused guilty of some crime over which 
 the justice has no power or authority to convict summarily. 
 It may be for a crime of a serious nature, such as murder, 
 manslaughter, or some indictable offence and over these a 
 justice of the peace has no power. There are certain 
 offences in which, if the accused consents, a justice of the 
 peace or police magistrate may try the case and sentence 
 the accused to such punishment as may be determined by 
 the statutes in that behalf. But without such consent 
 punishment would not be inflicted. The accused is not 
 deprived of the benefit of a jury of his countrymen as 
 to whether or not he is guilty of the crime charged against 
 him. 
 
 An indictment, it will be remembered, is the test of a 
 crime, and the evidence must be considered by a grand jury 
 to be suflScient to put the accused on his trial. As the law 
 at present stands the judgment of two justices of the peace 
 is supplanted by that of a grand jury, on the sufficiency of 
 the evidence to support an indictment. On the duties of 
 the justice on an indictable offence being brought under his 
 notice, they are so far judicial that in a proper case he can 
 admit the accused to bail till the next sittings of the court. 
 No justices shall admit to bail any one charged with trea- 
 son or a capital offence ; but any two justices may bail 
 parties charged with other felonies. Where the offence is 
 not bailable by him his duties are purely ministerial. If 
 the evidence supports the charge the accused must be com- 
 mitted to goal. The depositions and prisoner's statement 
 are sent to the county attorney, and the case tried either 
 at the county judges criminal court, the court of general 
 sessions, or the court of oyer and terminer and general 
 gaol delivery! In the two latter courts the accused has a 
 jury to find whether the evidence points to his guilt ;> in 
 
PKOCEDURE DEFINED BY THE DOMINION PAELIAMENT, ETC. 217 
 
 the county judge's criminal court the accused can elect to 
 be tried without a jury. This only refers to offences for 
 which the accused can be tried at the general sessions. 
 
 So far as summary convictions are concerned the magis- 
 trate's decision is final, unless set aside on appeal on 
 application to quash the same. But all committals, after 
 being disposed of by him, are tried in the courts as already 
 mentioned. If the justice refuses to bail the person an 
 application, even in the cases of murder, can be made to 
 the superior courts of law; and if a proper case be made to 
 the satisfaction of the judge, bail can be put in for his 
 appearance. 
 
 In cases of felony one justice cannot dispose of the case, 
 it requires two at least ; but a police magistrate, county 
 judge, or stipendiary magistrate may of himself do what- 
 ever is authorized by our criminal law to be done by two 
 or more justices of the peace. Justices of the peace are 
 aided and attended by constables, whose duties are to 
 execute the commands of the justices. They may commit 
 an offender and convey him to prison if the offence was 
 done in their presence, but have no authority to arrest a 
 man for an affray done out of their presence. Each justice 
 appoints his own constables ; and when necessary any two 
 or more justices can appoint special constables upon the 
 oath of a credible witness that any tumult, riot or felony 
 has taken place, or is continuing, or is to be expected to 
 take place. A county constable is appointed by the 
 county judge, or by the court of general sessions, and 
 the Lieutenant-Governor may appoint one for the whole 
 province. 
 
 In cities and towns with a population of over 5,000 in- 
 habitants, instead of justices of the peace, a police magis- 
 trate is appointed, who has generally the same powers as 
 
218 GOVERNMENT IN CANADA. 
 
 two or more justices would have, and may entertain cases 
 requiring more than one justice of the peace. The police 
 force in the city or town attend and execute his commands, 
 much the same as constables do those of justices of 
 the peace. Such police magistrate holds office during 
 pleasure ; and by virtue of his appointment as such, is a 
 justice of the peace for the city or town where he is appoint- 
 ed. Every other justice of the peace within the city or 
 town where a police magistrate has been appointed ceases 
 to have any powers to admit to bail or discharge any per- 
 son, or act in anj' way within the. judicial limits of the city 
 or town, except at the request of the police magistrate, or 
 during his illness or absence. 
 
 Every other justice of the peace, however, is liable to act 
 as one of the justices of the courts of general sessions. A 
 police magistrate so appointed, besides having the powers 
 of two or more justices of the peace as to matters within 
 the legislative control of this province, has jurisdiction over 
 all prosecutions for offences against the city or town by- 
 laws, and penalties as to refusing to accept offices therein, 
 or to make the necessary declarations of qualification and 
 office. 
 
 OORONEES. 
 
 Coroners are also conservators of the peace, and are said 
 to be the only officers known to the English law charged 
 with the investigation of crime. They are called coroners 
 from corona, the Latin word for crown, because formerly 
 they attended to the pleas of the crown. Their duties at 
 present are mostly defined by statute law ; and with the 
 exception of actiiig in times in place of the sheriff of their 
 county, are limited to inquisitions on deceased persons and 
 as to the origin of fires. 
 
PROCEDURE DEFINED BY THE DOMINION PAELrAMENT, ETC. 219 
 
 Coroners are appointed by the Lieutenant-Governor 
 under the great seal ; one or more coroners for each 
 county, city, town or district in the province ; and hold 
 office for life, unless they are removed for improper conduct 
 or resign their commission. It may be besides those 
 appointed in this way that the chief justices of the court of 
 .Queen's bench and common pleas are coroners for the 
 whole province, in analogy of the English doctrine, that 
 the lord chief justice of the Queen's bench is the supreme 
 coroner in the land. 
 
 The office of coroner, like that of sheriff, is very ancient 
 and honourable. The peace of the county in England was 
 entrusted to these two officers when the earls gave up the 
 wardship of the county. It thus happened that the coroner 
 often fulfilled the duties of the sheriff; and such is the 
 practice to this day ; so that wheiiever the sheriff has an 
 interest in the suit, or makes' default in serving process, the 
 writs are directed to the coroner. 
 
 This is part of the ministerial functions of coroners ; and 
 besides acting as sheriff's substitute, they can arrest persons 
 committing an affray in their presence ; and they possibly 
 possess cither magisterial powers. 
 
 But the judicial functions of a coroner are what must be 
 considered as properly coming under criminal law. When- 
 ever it has been made to appear to a coroner that there is 
 reason to believe that a deceased person came to his death 
 through violence or unfair means, or by culpable or negli- 
 gent conduct of himself or others, under such circumstances 
 as req^uire investigation, and not through mere accident or 
 mischance, he is to direct an inquest to be held on the body 
 of such deceased person. 
 
 On the death of any person in any gaol, prison, house of 
 correction, lock-up house, or house of industry, no matter 
 
220 GOVBENMENX IN CANADA. 
 
 from what cause, an inquest is to be held, as the crown 
 desires to see that the inmates of these places are properly 
 taken care of and do not die of want, or from improper 
 treatment from the custodians or otherwise. In further- 
 ance of this, notice must be given immediately to the 
 coroner of the death of the prisoner. 
 
 In all cases the inquest is held upon view of the body ; 
 and the investigation extends to the cause of the death of 
 the person, and to an inquiry of those accessories who it 
 appeared were absent at the time the offence, if chargeable 
 against any one, was committed, but who procured, 
 counselled, commanded or abetted it. In other words, it 
 extends to principals in the crime and accessories before 
 the fact. 
 
 To aid him in this investigation the coroner issues a 
 warrant to summon a jury at a certain time, not being a 
 Sunday, and at a place named in the warrant. A constable 
 summons the jury, at least twelve in number ; and it 
 appears that no one is exempt from serving thereon, and 
 may be fined for non-attendance. 
 
 Witnesses can be summoned at the same time, and are 
 examined after the coroner's court is opened and the jury 
 sworn. The accused can have his witnesses in his own 
 favour ; and after all the evidence is heard the coroner sums 
 it up to the jury, explains to them what the law is on the 
 subject, and directs them to consider of their verdict — they 
 are judges of what the facts are. A unanimous verdict of 
 twelve is required ; and if it is a case to come up at the 
 assizes the witnesses may be bound to appear at the 
 trial to give evidence, and the prosecutor to appear and 
 prosecute. 
 
 A written statement of the finding of a jury or their 
 verdict is called an inquisition ; and when it contains the 
 
t-EOCEDUEE DEFINED BY THE DOMINION PAELIAMENT, ETC. 221 
 
 subject matter of accusation it need not come before a 
 grand jury at the assizes, as the information of a magistrate 
 or of justices of the peace must. The principle in English 
 law, that no man is to be deprived of his life unless on the 
 unaminous verdict of twenty-four, is still regarded, the 
 only difference being that the grand jury in this case is 
 superseded by a coroner's jury. The party accused, if the 
 crime charged be murder, or an accessory to murder before 
 the fact, or manslaughter, is to be apprehended and com- 
 mitted, to jail, but may apply to a judge of one of the super- 
 ior courts for bail, if so advised. 
 
 The inquisition itself may be quashed if taken before an 
 unauthorized person, or if the coroner or jury misconducted 
 themselves, or for other good causes ; but any technical 
 defect or omission, of any matter unnecessary to be proved 
 will not vitiate any inquisition. Every coroner, immedi- 
 ately after inquisition found by him, shall return the same, 
 and all papers in reference thereto and to the attendance of 
 witnesses, to the county crown attorney. 
 
 Coroners also enquire into the origin of fires, where there 
 is reason to believe the fire was the result of culpable or 
 negligent conduct or design, or occurred under such circum- 
 stances as require investigation. The coroner can in his 
 discretion empannel a jury or not, unless he is required to 
 do so in the written inquisition of an insurance agent, or 
 of any three householders living near the fire. The inquest 
 is conducted the same as any ordinary inquest on the 
 body of a deceased j)erson ; but the return is made to the 
 clerk of the peace instead of the county crown attorney. 
 With the exception, however, of the county of York, the 
 clerk of the peace is the same person as the county crown 
 attorney in Ontario. 
 
 Each coroner, before the first day of January in each 
 year, makes a return to the provincial treasurer of the list 
 
222 GOVEBNMBNT IN CANADA. 
 
 of inquests taken before bim. The informations of justices 
 of the peace and the inquisitions of coroners, as was seen, 
 are both returned to the same officer, the crown attorney 
 for the county. He is therefore the next officer immedi- 
 ately concerned in the administration of criminal justice. 
 
 The Lieutenant-Governor appoints a crown attorney for 
 each county in the province, who holds office during plea- 
 sure. In Ontario he must be a resident in the county and 
 a barrister of at least three years standing. He is incapa- 
 citated, either directly or indirectly, to act as counsel for 
 any prisoner charged ivith treason, felony or other offence 
 punishable under the criminal law in force. His duties 
 are laid down by statute, and refer almost, if not altogether, 
 to criminal matters. It is his duty to receive and examine 
 informations, examinations, and inquisitions, and all papers 
 connected with criminal charges which the justices of the 
 peace and the coroners of his county are required to trans- 
 mit to him. 
 
 He secures the attendance of- witnesses ; institutes and 
 conducts on the part of the Crown all the criminal business 
 at the court of general sessions and the county judge's 
 criminal court. He advises justices of the peace upon be- 
 ing asked to do so ; and has certain duties as to the public 
 revenue, public health, or any matter punishable by a 
 justice of the peace. In criminal cases at the assizes, such 
 as for felonies and treasons, he is required to be present 
 and assist the crown counsel ; and in his absence to take 
 charge of the criminal business of the court, {f) 
 
 ( /) The greater portion of this chapter applies more particularly to 
 Ontario. It was not intended by the writer to give undue prominence 
 to any province, but it was hoped that an outline of the legislation of 
 any one might be useful to all. 
 
THE PEOPLE SUBJECTS, ALIENS, DENIZENS. 223 
 
 CHAPTEK XX. 
 
 THE PEOPLE — SUBJECTS, ALIENS, DENIZENS. 
 
 Who is a subject — Who an alien — Residents, domicile capa- 
 city of alien, subjects by birth, by naturalization, oath of 
 residence, of allegiance^Denizens — Titles under confed- 
 eration, governors, privy councillors, senators, speakers, 
 provincial councillors — Rank of the foregoing, judges, 
 bishops, army and navy officers, retired judges. 
 
 We have hitherto considered the rulers, or governing 
 powers of the people of the Dominion of Canada ; we will 
 now devote a small space to the ruled or governed — the 
 people — whether subjects or aliens. 
 
 A subject is defined to be one who is under the protec- 
 tion of, and owes allegiance to, the sovereign or ruling 
 power in the state. By British subjects are meant such as 
 are born within the dominions of the Crown of England, 
 or under the allegiance of the Queen. Therie are many 
 persons residing within the dominions of the Crown who 
 are not subjects of Her Majesty ; and on the other hand 
 there are many residing in foreign countries who are British 
 subjects. All residents who are not subjects, and all non- 
 residents not British subjects, are aliens. Of the former 
 class may be mentioned all those who belong to other 
 countries, and who have not renounced their allegiance 
 thereto, or rather who have not taken the oath of allegiance 
 and become naturalized here. Foreign consuls and other 
 representatives of foreign nations, tliough resident here, 
 are not British subjects. Nor are those such who are 
 
224 GOVERNMENT IN CANADA. 
 
 simply domiciled here as travellers or agents. In the same 
 way our consuls and representatives abroad are yet British 
 subjects, though non-residents ; and so are all British-born 
 subjects who, living abroad, have not renounced their 
 British nationality. Children born out of the dominions 
 of the crown, whose father and mother were at the time of 
 their birth in allegiance with the Queen, are subjects ; and 
 the children of all natural-born subjects, no matter where 
 born, are also subjects of her Majesty. In other words, the 
 second generation of children from British parents are 
 subjects; but it is doubtful if this extends to the third 
 generation. If the grand-father by the father's side was a 
 British subject, the grand-children would be' British sub- 
 jects also, according to Blackstone. Out of ten of the most 
 eminent lawyers in England, five were of opinion in a case 
 since Blackstone's time against the right of one whose 
 grand-father had been born out of the British dominions to 
 inherit land in England ; and the other five were of a con- 
 trary opinion. 
 
 In Canada real and personal property of any description 
 may be taken, acquired, held and disposed of by an alien 
 in the same manner, in all respects as by a natural British 
 subject ; and a title to real and personal property of any 
 description may be derived through, from, or in succession 
 to an alien, in the same manner in all respects, as through, 
 from, or in succession to a natural-born British subject, (a) 
 
 An alien has only such rights as are expressly given to 
 him, and unless naturalized he cannot hold an office or 
 exercise any municipal, parliamentary or other franchise. 
 Aliens in Ontario enjoy all the privileges in regard to Acts 
 relating to building societies and joint stock companies for 
 supplying cities, towns and villages with gas and water. 
 
 (a) K. S. G. cap. 113, sec. 3. 
 
THE PEOPLE SUBJECTS, ALIENS, DENIZENS. 225 
 
 But an alien cannot serve as a juryman in a court, nor is 
 he entitled to be the owner of a British ship. 
 
 Every child born within the dominions of the crown is 
 a British subject for all purposes, and while resident therein 
 cannot by any act of his divest himself of such a character. 
 But a British-born subject, if a subject of another state at 
 the time of his birth (as may be the case with ambassadors' 
 children), can cease to be a British subject by making 
 certain declarations prescribed by the Imperial Statutes 
 of 1870 and 1872 in reference to these matters. Any sub- 
 ject, if under no disability, may voluntarily become natu- 
 ralized in a foreign state, and thus cease to be a British 
 subject. This is expatriation. 
 
 An alien may become a British subject by naturalization 
 and in other ways. 
 
 Every alien-born woman becomes naturalized by mar- 
 rying a British natural-born or naturalized subject. 
 
 Every other alien who comes to residd in the Dominion 
 of Canada with intent to settle therein, and remains for 
 three years, can, by taking the oaths of residence and 
 allegiance, become a naturalized citizen, (b) 
 
 The following are the oaths of residence and allegiance : 
 
 OATH OF RESIDENCE . 
 
 " I, A. B., do swear {or, being person allowed by law to 
 
 affirm injudicial cases, do affirm) that in the period of 
 
 years preceding this date, I have resided three (or five as 
 the case may be) years in the Dominion of Canada with 
 intent to settle therein, without having been during such 
 three years (or five years as the case may be) a stated resi- 
 dent in any foreign country. So help me God." 
 
 (6) See Naturalization Act, K. S. C. cap. 113. 
 
 O.'S.G.O. 16 
 
226 GOVEKNJIENT IN CANADA. 
 
 OATH OF ALLEGIANCE. 
 
 " I. A. B., do sincerely promise and swear {or, being a 
 person allo2ved by law do affirm in 'judicial cases, do affirm) 
 that I will be faithful and bear true allegiance to Her 
 Majesty Queen Victoria, (or reigning sovereign for the time 
 being) as lawful Sovereign of the United Kingdom of 
 Great Britain and Ireland, and of the Dominion of Canada, 
 dependent on and belonging to the said Kingdom, and that 
 I will defend her to the utmost of my power against all 
 traitorous conspiracies or attempts whatever which shall 
 be made against Her Person, Crown and Dignity ; and 
 that I will do my utmost endeavour to disclose and make 
 known to Her Majesty, Her Heirs or Successors, all treasons 
 or traitorous conspiracies and attempts which I shall know 
 to be against Her or any of them ,- and all this I do swear 
 (or affirm) without any equivocation, mental evasion, or 
 secret reservation. So help me God." 
 
 The oaths can be administered by a judge or justice of 
 the peace ; and a certificate is granted and filed in court, 
 after which, if no objection is sustained as to its validity 
 the alien becomes a British subject as much as if he or she 
 was born in Canada, subject to some exceptions in the 
 English Act relating to naturalization, (c) Every alien 
 who had a settled place of abode in either of the provinces 
 of Ontario, Quebec, Nova Scotia or New Brunswick before 
 the 1st of July, 1867, and who is still a resident of the 
 same, is deemed to be a British subject for all purposes, 
 provided in the case of males, he takes the prescribed oath 
 of residence. Any person who, being within the Dominion 
 prior to the 1st of January, 1868, took the necessary oaths 
 of allegiance and residence also became naturalized. 
 
 There seems to be no difference between the rights and 
 privileges of a natural-born subject and a naturalized 
 subject. In England at one time the latter could not be 
 
 (c) 33 Vio. cap. 14, Imp. Act. 
 
THE PEOPLE — SUBJECTS, ALIENS, DENIZENS. 227 
 
 a privy councillor or member of parliament, or hold any of 
 the great offices of state ; but he is now entitled to all pol- 
 itical and other rights, powers and privileges, and is subject 
 to all obligations to which a natural-born British subject 
 is entitled or subject. In case a naturalized British subject 
 returns to his own country, he loses the character of Brit- 
 ish subject unless he renounces his original nationality in 
 pursuance of the laws of the state, or in pursuance of a 
 treaty to that effect. 
 
 The certificate of naturalization granted in the United 
 Kingdom confers no rights or privileges upon an alien in 
 Canada, {d) 
 
 Besides subjects and aliens there is a third class called 
 denizens, who, by means of letters patent from the crown, 
 enjoy certain rights of citizenship as long as they remain 
 within the Dominion. It is a sort of middle state between 
 subject and alien. In England a denizen cannot hold any 
 high office of state, and can neither inherit nor devise land, 
 and only take by purchase. In Canada, whatever signifi- 
 cance the term may have, a denizen must at least have 
 equal powers and rights as to real estate with an alien ; 
 and he has, no doubt, the additional rights of voting and 
 holding such offices as his patent allows him. The exist- 
 tence of such persons is contemplated at all events, as 
 there is mention made of denizens in some of the statutes. 
 
 The consideration as to whether any person is a subject 
 or not becomes material in relation to certain offences 
 against the crown. None but a subject can be found guilty 
 of treason ; or rather what is treason in a subject may be 
 no more than a felony in a foreigner. The general law as 
 to what offences are to be adjudged treason, as laid down 
 in the 25th year of King Edward III., is the law on the 
 
 (d) Earl Carnarvon's Circular Despatch to the Colonies, Sept., 1874. 
 
228 GOVEBNMENT IN CANADA. 
 
 question here ; and is set out in an Act relating to the se- 
 curity of the crown, 31 Vic, cap. 69 (1868) D. 
 
 The regulations as to titles and procedure in Canada are 
 inserted here, and may be found useful for reference : 
 
 TITLES UNDER CONFEDERATION. 
 
 1. The Governor-General of Canada to be styled "His 
 Excellency." 
 
 2. The Lieutenant-Governors of the provinces to be 
 styled "His Honour." 
 
 3. The privy councillors of Canada to be styled "Honour- 
 able," and for life. 
 
 4. Senators of Canada to be " Honourable," but only 
 during office, and the title not to be continued afterwards. 
 
 5. Executive councillors of the province to be styled 
 "Honourable," but only while in office, and the title not to 
 be continued afterwards. 
 
 6. Legislative councillors in the provinces not in future 
 to have that title ; but gentlemen who were legislative 
 councillors at the time of the union, to retain their title of 
 " Honourable " for life. 
 
 7. The president of the legislative council in the pro- 
 vinces to be styled " Honourable " during office. 
 
 8. The speakers of the house of assembly in the pro- 
 vinces to be styled " Honourable " during office. 
 
THE PEOPLE SUBJECTS, ALIENS, DENIZENS. 229 
 
 TABLE OF PRECEDENCE WITHIN THE DOMINION OF CANADA, (g) 
 
 1. The Governor-General, or officer administering the 
 Government. 
 
 2. Senior officer commanding Her Majesty's troops 
 within the Dominion, if of the rank of general ; and 
 officer commanding Her Majesty's naval forces on the 
 British North American Station, if of the rank of an 
 admiral. Their own relative rank to be determined by the 
 Queen's regulations on this subject. 
 
 3. The Lieutenant-Governor of Ontario. 
 
 4. " " Quebec. 
 
 5. " " Nova Scotia. 
 
 6. " " New Brunswick. 
 
 7. Archbishops and bishops according to seniority. 
 
 8. Members of the cabinet according to seniority. 
 
 9. The speaker' of the senate. 
 
 10. The chief justice of the Supreme Court of Canada. 
 
 11. The chief judges of the courts of law and equity, 
 according to seniority. 
 
 12. Members of the privy council, not of the cabinet. 
 
 13. General officers of Her Majesty's army serving in 
 the Dominion, and officers of the rank of admiral in the 
 royal navy, serving on the British North American 
 Station, not being in the chief command ; the relative 
 rank of such officers to be determined by Her Majesty's 
 regulations. 
 
 (e) See Orders in Council, 43 Vic. (D) xxii. 
 
230 GOVEENMENT IN CANADA. 
 
 14. The officers commanding Her Majesty's troops in 
 the Dominion, if of the rank of colonel or inferior rank, 
 and the officer commanding Her Majesty's naval forces 
 on the British North American Station, if of equivalent 
 rank ; their relative rank to be ascertained by the Queen's 
 regulations. 
 
 15. Members of the senate. 
 
 16. Speaker of the house of commons. 
 
 17. Puisne judges of the Supreme Court of Canada 
 according to senioritj'. 
 
 18. Puisne judges of courts of law and equity according 
 to seniority. 
 
 19. Members of the house of commons. 
 
 20. Members of the executive council (provincial) within 
 their province. 
 
 21. Speaker of the legislative council within his pro- 
 vince. 
 
 22. Members of the legislative council within their 
 province. 
 
 23. Speaker of the legislative assembly within his 
 province. 
 
 24. Members of the legislative assembly within their 
 province. 
 
 Eetired judges of whatever court take precedence next 
 after the present judges of their respective courts. 
 
 The regulations respecting the precedence of naval 
 officers, the subject of salutes, or of the precedence to be 
 given to lieutenant-goverjiora within their provinces or at 
 
THE PEOPLE SUBJECTS, ALIENS, DENIZENS. 231 
 
 the seat of government, accompany the orders in council to 
 be found in the Dominion statutes of 1880. (/) 
 
 (/) The different orders of nobility in England — dukes, marquises, 
 earls, viscounts, and barons — have been referred to in the Chapter on 
 the Senate (page 45). There are also several degrees of the com- 
 monalty. The first name in dignity after the nobility is — 
 
 (1) Knight of the order of St. George or of the Garter, — instituted by 
 Edward III. 
 
 (■2) Knight Banneret, a military distinction. 
 
 (3) Baronets. — A title of inheritance created by letters patent and 
 
 descendible usually to male issue. 
 
 (4) Knights of the Bath — an order instituted by Henry IV. and revived 
 
 by George I. and so called from the ceremony of bathing the night 
 before their creation. 
 
 (5) Knights Bachelors — the most ancient, though the lowest order of 
 
 knighthood. 
 These are all the names of dignity in the United Kingdom — Esquires 
 and gentlemen as Sir Edward Coke says being only names of worship. 
 Any one having an of&ce under the Crown is legally an esquire, just as 
 gentleman is " given to those who study the laws of the realm, who study 
 in the universities, who profess the liberal sciences, and in short, who 
 can live idly and without manual labour, and will bear the port charge 
 and countenance of a gentleman." A yeoman was one that had free 
 land of forty shillings by the year, and was qualified to serve on juries 
 and to vote for knights of the shire. Tradesmen, artificers, and labourers, 
 formed the rest of the commonalty. 
 
232 GOVERNMENT IN CANADA. 
 
 CHAPTEE XXI. 
 
 THE PEOPLE, THEIE EIGHTS. 
 
 Representation, franchise, suffrage, basis of representation — 
 Qualifications in the Dominion and the provinces — 
 Ontario — Public meetings, how called, riot act — Petitions, 
 when necessary, how prepared, how presented — The 
 press, libel, civil and criminal, Ontario Act, retractation 
 — Commissiotis of enquiry — Local government, munici- 
 palities, townships, counties, villages, towns, cities, 
 bye-laws, control of the courts — Religious freedom, 
 equality of all denominations, no established church, the 
 Church of England, the Roman Catholic Church, public 
 worship protected, statutes, Christianity jmrt of the laiv 
 of the land. 
 
 REPKESENTATION. 
 
 The privilege of taking part in the government of one's 
 country by being represented in parliament, or represented 
 in the legislatures or municipalities which make our laws, 
 is one of the most valued rights of a free people. The right 
 of the citizens to have a voice in every matter that affects 
 their liberties is called their franchise. But to have a voice 
 or vote in such matters is not accorded to every body. 
 Certain qualifications are necessary, and these qualifications 
 differ both in the provinces and in the Dominion. 
 
THE PEOPLE, THEIE RIGHTS. 233 
 
 Where every citizen is entitled to vote it is called univer- 
 sal suffrage — voting being the right of suffrage, (a) 
 
 The system of representation which prevails in Canada, 
 from the highest delegate of the people in the commons 
 down through the provincial and municipal elections, is 
 based on divisions of the population ; though territory or 
 certain areas of land are so connected with this that the 
 latter are represented as well. While it is true that every 
 acre of land is represented, the manner of its being so 
 represented is arrived at with regard to the number of peo- 
 ple. Numbers of people possessing no land qualification 
 are represented by virtue of the income tax, or as in 
 Ontario, under the Farmers' Sons Act. While it is strictly 
 true that our system of representation regards both popu- 
 lation and territory, the real basis is the population. The 
 territory is an accident of the voters, and in itself is not 
 entitled to representation. The third way, or representa- 
 tion by class representation, though much discussed in 
 other countries cannot be said to enter into the idea of the 
 Canadian or English system. 
 
 The 215 members in the house of commons represent 
 the provinces and territories comprising the Dominion of 
 Canada. Each province and the territories are divided up 
 into constituencies or ridings having regard to the popu- 
 lation and areas therein. Originally the number of divisions 
 into which the provinces were divided up for electing 
 members to their legislatures was the same as for the 
 Dominion elections ; though the areas of these divisions were 
 generally different. The qualifications of voters were the 
 same in the provincial and Dominion elections up to a few 
 years ago, so that anyone entitled to vote for a member of 
 
 {a) In the 41st section of the B. N. A. Act every male subject aged 21 
 years or upwaids, being a householder in Algoma was until the parlia- 
 ment otherwise provided, entitled to vote for a member of the commons. 
 
234 GOVERNMENT IN CANADA. 
 
 his provincial legislature could vote for a member of the 
 house of commons in that province. The parliament 
 of Canada by recent legislation created new electoral 
 divisions for members of the commons and assigned the 
 necessary qualifications of voters. These have already 
 been referred to. (h) The representation and areas are 
 now generally different in the provinces from those of the 
 Dominion. 
 
 It would be beside the scope of this little work to attempt 
 any exact epitome of the qualifications necessary for voters 
 in the different provinces, and what offices and positions 
 disqualify persons from voting. The law in Ontario may 
 be given and it will not be found very different from what 
 obtains in the other provinces. 
 
 In this province the persons not admitted to vote are : 
 1. All judges of any of our courts, and all clerks of the 
 peace, county attorneys, registrars, sheriffs, deputy sheriff's, 
 and deputy clerks of the crown. 2. All agents for the sale 
 of crown lands. 3. All officers of the customs of the 
 Dominion, and all officers employed in the collection of any 
 duties payable to Her Majesty in the nature of duties of 
 excise ; and 4. All postmasters in towns or cities. Any of 
 these persons voting shall forfeit $2,000, and his vote is 
 null and void. 5. No returning officer, election clerk, or 
 paid election agent, shall be entitled to vote ; but this does 
 not apply to the deputy returning officers or poll clerks, 
 who are paid under the provisions of Art. 6. Lastly, no 
 woman can vote at any parliamentary election. 
 
 Subject to these exceptions every person being of the full 
 age of 21 years and a subject of Her Majesty by birth or 
 naturalization, if duly entered in the list of voters to be 
 used at the pending election, and if not otherwise by law 
 
 (b) See chapter V. in the House of Commcais. 
 
THE PEOPLE, THEIE EIGHTS. 235 
 
 prevented from voting, is entitled to vote for members for 
 the legislative assembly of Ontario. 
 
 1. In order to entitle a person to be entered on the 
 voters' lists, he must be interested in real property as owner, 
 tenant, or occupant, to the extent of $200 in cities and 
 towns and $100 in incorporated villages or townships. If 
 he ceases to have such interest he may still have a vote, 
 provided his name is entered in the revised assessment roll, 
 and that he is a resident of the electoral district. 
 
 In regard to the value of the property if vested in joint 
 owners, if th«re is sufficient when divided to give each a 
 vote, each has one ; if not, none of the owners has a vote. 
 And BO if three persons in a city are jointly assessed for $600, 
 each has a vote ; if assessed for $500, none of them can 
 vote. 
 
 2. Persons who have resided continuously in the local 
 municipality since the. completion of its last revised assess- 
 ment roll and whe, being assessed on an income of $250 
 at least, have paid their last year's taxes, are entitled to vote. 
 
 3. Farmers' sons resident on their father's or mother's 
 farm for twelve months prior to the return of the assess- 
 ment roll, and who are rated for an amount sufficient to 
 qualify them, can vote. Where there are a number of sons 
 the provisions as to one or more voting are somewhat 
 similar to those affecting joint owners of real estate, except 
 that the division of the property enures to qualifying as 
 many of the parties in the order of their age as the value of 
 the property or the number of the sons will permit of. 
 
 4. All Indians, or persons part Indian, if duly enfran-' 
 chised and possessing the Same qualifications as other 
 persons in their electoral districts, are entitled to vote. 
 
 p. In Algom,a, Parry SoiUjidj and some other exeepitional 
 
236 GOVERNMENT IN CANADA. 
 
 places, every male person being twenty-one years of age, a 
 naturalized subject and not otherwise disqualified, and who, 
 at the time of the election, is the owner of real estate where 
 he tenders his vote, to the value of $200 or who is and has 
 been for the preceding six months a resident householder, 
 is entitled to vote. 
 
 PUBLIC MEETINGS. 
 
 Public opinion is frequently expressed through the med- 
 ium of public meetings, which, so long as they remain 
 orderly, are privileged to discuss almost any subject. It is 
 the undoubted right of subjects to meet together in a 
 peaceable and orderly manner for the consideration and 
 discussion of matters of public interest, or for making 
 known their views to Her Majesty or her representative in 
 the Dominion or in the provinces, either in approbation or 
 condemnation of public matters. 
 
 Public meetings, in order to be entitled to the recog- 
 nition of the law, must be called by certain persons and in 
 a particular way. 
 
 In any city or town, on the requisition of any twelve 
 citizens entitled to vote for members of the local legislature, 
 a meeting may be called by the sheriff or by the mayor or 
 other chief municipal officer, which is a public meeting 
 under the Act and entitled to the protection accorded to 
 such meeting. The requisitionists must have a property 
 qualification in the town or city in which the meeting is to 
 be called, and their property must be within the particular 
 district, ward, or parish, within which the meeting is to be 
 held. Two resident justices of the peace appear also to 
 have the power to call public meetings. The notice or 
 summons calling together a public meeting must issue three 
 days before the meeting ; must set forth the names of the 
 
THE PEOPLE, THEIE EIGHTS. 237 
 
 requisitionists, or at least 12 of them ; must state that the 
 meeting is called in conformitj' with the provisions of the 
 Act ; and that the meeting and all persons attending the 
 same are to take notice of that fact, and govern themselves 
 accordingly. , 
 
 Whoever calls such meeting, at least in Ontario, must 
 remain ; and whether presiding over it or not, help to pre- 
 serve the peace thereat. Special constables may be 
 appointed, and the military force, if necessary, brought to 
 his assistance. Should a meeting of 12 or more persons 
 become disorderly, the mayor, sheriff, magistrate, justice 
 of the peace, or other officer may read the proclamation set 
 out in what is commonly called the Eiot Act ; and if, after 
 the lapse of an hour, the persons do not disperse, he may 
 forcibly break up the meeting, using the civil and military 
 assistance as has been mentioned. The original of our 
 Act relating to riots and riotous assemblies was passed in 
 England in the reign of King George I. The Canadian 
 Act is 31 Victoria cap. 70 (1868), and the proclamation 
 to be read before using any violent measures is as follows : 
 
 " Our Sovereign Lady the Queen chargeth and command- 
 eth all persons being assembled immediately to disperse 
 themselves, and peaceably to depart to their habitations or 
 to their lawful business, upon the pains contained in the 
 Act respecting the riots and riotous assemblies. God save 
 the Queen." 
 
 Such persons not obeying the command to disperse are 
 guilty of felony and liable to be imprisoned in the peneten- 
 tiary for life, or for any term not less than two years, or 
 liable to be otherwise imprisoned for any term less than 
 two years. 
 
 Powers are given to justices of the peace, sheriffs, mayors 
 and others, to apprehend the offenders who do not disperse 
 
238 GOVERNMENT tN CANADA. 
 
 within one hour after the proclamation is read ; and per- 
 sons engaged in suppressing the riot are justified even if 
 the death of the rioter ensue from his resistance. Any 
 persons opposing with force and arms any peace officer or 
 others engaged in suppressing a riot, or any persons pre- 
 venting the making of the proclamation, are guilty of 
 felony and liable to the same punishment as the rioters 
 themselves. 
 
 The revised statutes of Canada, cap. 152, contain the 
 authority for preserving the peace at public meetings. 
 
 PETITIONS. 
 
 Petitioning is another mode of expressing public opinion, 
 and by it persons or classes may be heard in parliament 
 or elsewhere when they conceive that their views are not 
 fully set out by their representatives. It is about the only 
 way of being heard that is left to those who are not voters. 
 If no channel were left to the people, except through their 
 representatives, it- might well happen that the minority 
 would never be heard except in the disorders of riot or 
 revolution. A class may be interfered with or the legisla- 
 tion may be too slow or too far in advance of the interests 
 of the people. In these and many other instances petition- 
 ing is resorted to. 
 
 Every person, whether an elector or not, may petition 
 parliament or the local legislature ; but the petition must 
 be presented by a member of the house, who is responsible 
 for its containing no impertinent or improper matter. 
 
 Petitions must be fairly written or printed ; and in the 
 senate three of the petitioners names must appear on the 
 sheet containing the petition. Petitions from corporations 
 must be duly authenticated by their corporate seal. Peti- 
 tions signed by persons representing public meetings are 
 
THE PEOPLE, THEIR EIGHTS. 239 
 
 received as from the persons whose names are affixed to 
 the petition. 
 
 A member presenting a petition in the commons must 
 endorse his name thereon, and confine his remarks to a 
 statement of the parties from whom the petition comes, the 
 number of signatures attached, and the material allegations 
 it contains. Petitions are laid on the table by direction of 
 the speaker without debate in reference thereto ; but if 
 required, the clerk may read them, and if they complain of 
 any personal grievance requiring an immediate remedy the 
 matter may be at once discussed. There does not appear 
 to be any Canadian legislation as to petitions to parlia- 
 ment ; but the fact that those presenting them are respon- 
 sible for their propriety sufficiently insures their being 
 consistent with the dignity of parliament. It is probable 
 that the English Act for the prevention of tumultuous 
 petitioning -to parliament is in force in Canada. 
 
 THE PRESS. 
 
 The press is perhaps the greatest means of expressing 
 public opinion. In Canada its liberty is not restrained by 
 any state censorship, and any person feeling that he has 
 been wronged in the public press may apply to the courts 
 for damages in a civil action, or proceed to have the offend- 
 ing party arrested and tried for a misdemeanor. 
 
 Libel as a crime is governed by a uniform law in the 
 Dominion, and is punishable by fine or imprisonment or 
 both. 
 
 Any person publishing, or threatening to publish, any 
 libel upon any other, or directly or indirectly threatening 
 to print or publish, or abstain from so doing, or offering to 
 prevent the same with intent to extort any money or se- 
 curity for money, or any valuable thing, or with intent to 
 
240 GOVEENMEN* IN CANADA. 
 
 induce any person to confer upon or procure for any person 
 any appointment or office of profit or trust, is guilty of a 
 misdemeanor, and liable to a fine not exceeding $600, or to 
 imprisonment with hard labour for any period less than 
 two years, or liable to both, as the court may award. 
 
 Whoever maliciously publishes any defamatory libel, 
 knowing it to be false, may be fined any sum less than 
 $400, or imprisoned, as in the other cases, or both. Other 
 defamatory libels are punished by imprisonment of one 
 year or less, with a fine not exceeding $200. The truth of 
 any libelous matter is no defence, unless it was for the 
 public benefit that it should be published, (c) 
 
 Libel as a civil action is not uniformly defined, but is 
 left to be determined by the provincial legislatures. The 
 punishment then is the amount of damage supposed to be 
 suffered by the aggrieved party, which amount is found by 
 a jury. In the criminal actions the jury simply finds 
 whether or not the accused is guilty of the charge preferred 
 against him ; in the civil action the jury finds generally if 
 there was a libel ; and if so, what damage was sustained 
 by the plaintiff, (d) 
 
 COMMISSIONS OP ENQUIRY. 
 
 Besides matters which are brought into public notice by 
 means of the press, of public meetings, and of petitions, 
 the Governor in council has the right to institute com- 
 missions of enquiry into public matters concerning any 
 matter connected with the good government of Canada, or 
 the conduct of any part of the public business. The com- 
 
 (c) See E. S. C. cap. 163 as to libel as a crime. 
 
 {d) The legislature of Ontario passed an Act last session (50 Vict. cap. 
 9) as to the law of libel. By it no action lies until the plaintiff gives the 
 defendant notice in writing of the statements complained of, so as to 
 allow him to publish a retractation in the next regular issue of his 
 paper or within three days from the notice. 
 
THE PEOPLE, THEIE EIGHTS. 241 
 
 missioners appointed in this way may have conferred on 
 them the power of summoning before them any party or 
 witness, and requiring them to give evidence on oath or in 
 writing, and to produce all documents and things requisite 
 for the full investigation of the matters into which they are 
 appointed to examine. These commissioners may also 
 have the same power given them as is vested in any 
 court of law in civil cases to compel the attendance of 
 witnesses, (e) 
 
 Similar powers are given to the Lieutenant-Governor 
 of Ontario and of some other provinces as to commissions 
 of enquiry. 
 
 LOCAL ADMINISTEATIVB GOVEENMEHT. 
 
 The provinces are generally divided into municipal 
 corporations having large powers of directing their own 
 domestic concerns. While the legislature controls the 
 corporations, these latter have ascertained rights in the 
 exercise of which, within legitimate limits, they are free to 
 manage their own local affairs. 
 
 The division of the Canadas into townships and counties 
 dates back a long period. Alterations were frequently 
 made in counties for electoral or judicial purposes ; but as 
 to municipal corporations embracing a certain area, few 
 changes appear to have been made in those counties defi- 
 nitely bounded in the first Crown survey. New townships 
 are frequently laid out in unsettled districts, and occasion- 
 ally alterations made. In Ontario certain limits are 
 prescribed for villages desiring incorporation, and the 
 population must be at least 750 persons. In the same way 
 towns must have 2,000 and cities 15,000 inhabitants. 
 These do not become incorporated by the fact of having so 
 
 (e) B. S. C. cap. 114. 
 
 O.'S.G.C. 17 
 
242 GOVERNMENT IN CANADA. 
 
 many inhabitants. A charter of incorporation is granted 
 them by the Lieutenant-Governor creating them cities, 
 towns, or villages, as the case may be. Until incorporated 
 they belong to the county or township. 
 
 The local affairs of these different corporations are man- 
 aged by a council, which is the municipal legislature ; and 
 the limits of its enactments or by-laws are prescribed by 
 the Acts of the local legislature relating to municipal cor- 
 porations. Their by-laws are very comprehensive, and in 
 Ontario include the obtaining of puch real and personal 
 property for the use of the corporation as it may require : 
 the appointment of necessary officers, giving aid to agricul- 
 tural or other kindred societies or incorporated mechanics' 
 institutes, aiding manufacturing establishments, road 
 companies, and also charities and indigent persons, taking 
 the census of the municipality, regulating the driving on 
 roads and bridges, the egress from public buildings, and 
 very extensive powers as to drainage. They can also im- 
 pose fines up to $50 for neglect of duty or breach of these 
 by-laws, and may distrain and sell the goods of the offender 
 and if necessary inflict reasonable punishment by imprison- 
 ment not exceeding 21 days. 
 
 The powers of each of the different municipal corpora- 
 tions of cities, counties, towns and townships are very 
 minutely set out in the Acts relating to municipal institu- 
 tions. The different municipal corporations are composed 
 of aldermen or councillors or reeves and their deputies, 
 with a presiding officer who is the mayor, warden or reeve 
 as the case may be. These bodies form the local adminis- 
 tration of their municipalities, are elected for one year at 
 a time, and must have certain property qualifications. 
 They have certain specified powers, a regular system of 
 procedure, and in some cases an executive. They are re- 
 strained by the superior courts when their by-laws are in 
 
THE PEOPLE, THEIU EIGHTS. 243 
 
 excess of their powers, and these courts compel them to 
 exercise their powers in proper cases if they refuse to do so. 
 The provincial legislatures grant them their powers, but 
 commit the proper execution of them to the controlling 
 care of the courts. 
 
 RELIGIOUS LIBERTY. 
 
 It is an admitted principle of colonial legislation that all 
 religious denominations are on a legal equalitj'. This is 
 declared by statute to be a fundamental principle of the 
 civir policy of Ontario. In the language of the Act "the 
 free exercise and enjoyment of religious profession and 
 worship, withofit discrimination or preference, provided 
 the same be not made an excuse for acts of licentiousness 
 or a justification of practices inconsistent with the peace 
 and safety of the province, is by the constitution and laws 
 of this province allowed to all Her Majesty's subjects within 
 the same." No rectories of the Church of England can be 
 hereafter created out of the clergy reserve or the public 
 domain; and "no tithes can be claimed, demanded or 
 received by any rector, vicar or other ecclesiastical person of 
 the protestant church within Ontario." There seem to be 
 some provisions respecting these matters in the statutes 
 in Nova Scotia. 
 
 There is no church established by law in Canada or in 
 any of the provinces of Canada and there is no connection 
 between the church and the state here as there is in Eng- 
 land. The Church of England in the colonies is simply a 
 voluntary association, and on the same footing with other 
 religious bodies. (/) The Eoman Catholic Church enjoys 
 freedom and its members are secured in the liberty of pro- 
 fessing their religion in the same way as other denomina- 
 
 (/) In re Bishop of Natal 3 Moore P. C. N. S. 115. 
 
244 GOVERNMENT IN CANADA. 
 
 tions by the general law, and also by the treaty of Paris, 
 1763, and by the Imperial Act of 1774 (14 Geo. III. cap. 83,) 
 subject only to the supremacy of the Crown of England. 
 The extent of this supremacy is declared in a statute passed 
 in the first year of the reign of Queen Elizabeth, (g) 
 
 While the different forms of Christianity are thus on the 
 same footing, the laws further recognize that Christianity 
 itself is part of the law of the land, (h) At the same time 
 the law protects every form of worship. Every one who 
 by threats or force, unlawfully obstructs or prevents, or 
 endeavours to obstruct or prevent, any clergyman or other 
 minister from celebrating divine service or officiating in 
 any church or other place used for divine worship is guilty 
 of a misdemeanor and liable to be imprisoned for any term 
 less than two years : any person wilfully disturbing any 
 persons met for religious worship, or for any moral, social 
 or benevolent purpose, is also guilty of a misdemeanor and 
 may be imprisoned for a month or fined up to the sum of 
 twenty dollars, (i) 
 
 (g) The clause in the treaty, "so far as the laws of Great Britain 
 permit, ' ' meant subject to the King's supremacy. See Part II. 
 (h) Pringle v. the Corporation of Napanee 43, Q. B. 285. 
 (i) E. S. C. cap. 156. 
 
GOVERNMENT IN CANADA. 
 
 PART II. 
 
 FOEMEE GOVEENMENTS IN CANADA AND IN 
 THE PEOVINCES. 
 
 INTEODUCTION. 
 
 The aim of a constitutional history is to give an account 
 of the way in which the people of any country have 
 governed themselves. This assumes that the people do 
 govern themselves, that they form a nation, and that they 
 are possessed of sovereign power. None but a self-ruling 
 people can, in strictness, have a constitution or a consti- 
 tutional history, because the meaning of the term consti- 
 tution is the agreement or understanding whereby the 
 whole people — the rulers and the ruled — choose to govern 
 themselves. It must not be supposed by the student that 
 the rulers are distinct from the people generally — they are 
 that portion of the community which the other members 
 entrust with the common government of all ; and it is the 
 distinguishing feature of a limited or constitutional 
 
246 GOVERNMENT IN CANADA. 
 
 government that no one, not even the sovereign or chief 
 magistrate, is exempt from obedience to the general laws 
 of the land. In a colony or dependency with a consti- 
 tutional form of government, this agreement or under- 
 standing, besides being the choice of the people, must be 
 sanctioned or permitted by the mother country. 
 
 The Dominion of Canada is a dependency of Great 
 Britain, and is made up of a number of colonies and 
 possessions of that country in North America. The 
 colonies were acquired chiefly by cession from France ; 
 the territories or possessions came through discoevry or 
 the ventures of British subjects. Each of these, under its 
 own form of government, has a separate history down to 
 its admission into the Canadian union. That union took 
 place in the year 1867, but it then only included three 
 colonies : it now embraces, excepting Newfoundland, nearly 
 all British North America — one half the northern continent. 
 A constitutional history of Canada is strictly the history of 
 Canadian government since the date of the union. 
 
 The union' of 1867 appears very like the addition of 
 colonies and possessions to the old province of Canada. 
 The province was itself a union of the provinces of Upper 
 and Lower Canada. Originally it was one province and 
 called Quebec. It was the chief of the British possessions 
 around the St. Lawrence, its governors had precedence 
 over all other governors in adjoining colonies, and in time 
 of disturbance they took charge of and were captains- 
 general of all the forces. Canada as part of new France 
 has a history reaching back into the early years of the 
 seventeenth century ; and it was the head-quarters of 
 French authority along the great lakes and the-Mississippi. 
 For many reasons, therefore, the new Dominion was 
 called Canada, though it cannot be denied that in a 
 federation it is highly desirable that no one of the consti- 
 
INTEODUCTION. 247 
 
 tuent states should have the semblance of any real or 
 imaginary superiority. The unfortunate choice of a name 
 in the neighbouring republic has been often deplored by 
 American writers, though it has not prevented other 
 republics from following their example. The prominence 
 necessarily given to the Canadas in any historical sketch 
 may be referred to their relative importance ; but in any 
 account of their modes of government it is due rather to • 
 the number of changes that have taken place in their 
 constitutions. The manner of governing Canada for more 
 than a century past has been no small concern to Canadian 
 and British statesmen. If a consideration of these changes 
 occupy the larger space in the succeeding pages, it is not 
 with any intention to disregard the importance of the 
 other provinces. The Maritime Provinces have perhaps 
 less eventful histories, because they have been less restless 
 than their western neighbours. From a point of view of 
 general history the North Western Territories are extremely 
 interesting, but prior to 1870 they had no constitutional 
 history. 
 
 It is proposed in the following pages to outline the 
 different modes of government in the provinces before their 
 admission into the union, with a word or two on such 
 matters before confederation as properly fall under the 
 range of constitutional history. This will not be much 
 more than a record of changes of imperial charters that 
 popularly are regarded in the light of that species of 
 history. This year (1887) is the centenary of the. United 
 States constitution, and the amendments to the original 
 document can be comprised in less than two pages of an 
 ordinary book. These changes and the decisions of the 
 supreme court of that country are the basis and the 
 substance of the United States constitutional history. So 
 it is and will be in this country, though the amendments 
 are effected in a different way and the judicial interpreta- 
 
248' GOVEBNMENT IN CANADA. 
 
 tions may come from any of our courts. In both countries 
 there is of necessity a written constitution, as there must 
 be in every federation ; and its history is not so much the 
 steady growth of poHtical changes, as occasional abrupt 
 turns by organic amendments. 
 
 In the United Kingdom of Great Britain and Ireland 
 there is no necessity for one of that character. In fact 
 there would be no object gained by committing it to writing, 
 because it might be altered or repealed at the next session 
 of the British Parliament. In the same way each session 
 may add something to it. It has a steady growth or has 
 the means of such. The British constitution is therefore 
 made up of certain recognized principles of government 
 not necessarily in any statute but regarded by the people 
 as essential elements of its government. The Magna 
 Charta, the Petition of Eights, the Act of Succession are 
 some of the great landmarks of the British constitution ; 
 and. these and all other parts of it have to be discovered in 
 the history of the people and in the laws of the land. 
 There is not one fundamental principle of government 
 that the British legislature is unable to amend or repeal ; 
 but these principles hold good until they are amended or 
 repealed. 
 
 In Canada we have had our constitutions en bloc, so to 
 speak ; a reference to these is desirable to a right under- 
 standing of the present or latest one, and it is to this 
 species of history, by whatever name it may be called that 
 the reader's attention will now be directed. 
 
EARLY DIVISIONS OF THE CONTINENT — CANADA. 249 
 
 CHAPTER I. 
 
 EAELY DIVISIONS OF THE CONTINENT CANADA. 
 
 Three claimants of the continent, England east of the Mis- 
 sissippi, France west of it and north of the lakes, Spain 
 to the south and west — -Treaties, Ryswick, Utrecht, Aix- 
 la-Ghapelle, Paris, 1768, Versailles, 1788 — Boundaries 
 — French regime. Seven Years' war, fall of Quebec, of 
 Montreal, capitulations — Military government, 1759 to 
 1763. 
 
 The North American continent from its discovery was 
 claimed by several European nations, but chiefly by the 
 French and the English. The French owned all north of 
 the Eiver and Gulf of St. Lawrence and of the great lakes, 
 and also Michigan, Ohio, and the territory lying westward 
 of the Mississippi river as far south as New Orleans. The 
 English owned everything to the south and east of this 
 somewhat indefinite boundary except Florida, which was 
 owned by the Spaniards. The British possessions were 
 originally by royal grant divided into two provinces, North 
 and South Virginia, but afterwards they were subdivided 
 until they numbered thirteen. These were the old thirteen 
 colonies that declared their independence in the year 1776. 
 The western boundary of these English colonies was con- 
 veniently placed at the Mississippi river, though the early 
 
250 GOVEENMBNT IN CANABA. 
 
 maps are not very uniform on that point ; the northern 
 boundary, where the great lakes interposed no natural 
 barrier, was not so readily accepted ; the boundary on the 
 noi'th-east was changed several times, (a) 
 
 The circumstances which led to the conquest of Canada 
 by the British in the last years of the reign of George II 
 and the formal cession of the country in the subsequent 
 reign are matters of general history, and not so obviously 
 within the range of that species of history which has for its 
 object the noting of changes in the manner of our govern- 
 ment. Nevertheless there is a Canada before the cession 
 of 1763, and a Canada thereafter; the one French — the 
 other English ; there are the contending owners, France 
 and England, and the terms of their settlement. 
 
 From the discovery of Canada by Cartier in 1534 down 
 to the end of the sixteenth century, there is nothing of any 
 special interest. There was a formal taking possession of 
 the country in the name of France. Champlain was 
 appointed first Governor by Conde under Louis XIII. His 
 
 (a) The 45th parallel of latitude was adopted for nearly one-half of the 
 distance from the St. Lawrence to the seaboard, through what was then 
 Massachusetts ; after that " the high lands dividing the waters falling 
 into the Atlantic from those emptying themselves into the St. Lawrence " 
 were taken as suf&cient to indicate the limits of both countries. The 
 boundaries of the British provinces were not altered by the war of 1812- 
 14 between England and the United States, which was terminated by 
 the treaty of Ghent in 1814. The difficulty of determining the boundary 
 in the east, where the 45th parallel was no longer considered as a guide, 
 gave rise to a good deal of negotiation between the contending parties. 
 In 1827 it was referred to the King of the Netherlands whose award was 
 deemed highly unfavourable to the United States. That power refused 
 to accept it. Afterwards, when fresh difficulties arose in 1842, Lord 
 Ashburton and Daniel Webster were appointed commissioners to define 
 the boundary. This is known as the Ashburton treaty. It recognized 
 the 45th parallel to the high lanSs in New Hampshire as the northern 
 boundary of New York and Vermont States, and traced out the line 
 between New Hampshire and Maine to the south and east of Lower 
 Canada and New Brunswick. Beginning at the Pacific in the west the 
 49th parallel was adopted to the Lake of the Woods, and from that the 
 central line of the lakes and river St. Lawrence to complete the boundary 
 to the 45th parallel. 
 
EAELY DIVISIONS OF THE CONTINENT — CANADA. 251 
 
 French subjects numbered sixty. In 1629, by the fortunes 
 of war, Canada passed into the hands of the British, who, 
 three years later, returned it to the original owners, (b) 
 
 Cardinal Eichelieu then took the infant colony in charge 
 and the company of the One Hundred Associates was 
 formed. This company was replaced in 1663 by a royal 
 government and the change is one by which some interest 
 is awakened, because it established an order of things 
 which subsisted till the cession in 1760, a period of nearly 
 100 years. Louis XIV. was ruler in France and Colbert 
 his minister. The hundred associates, reduced by more 
 than one half, were superseded by a royal government 
 under a supreme council. The royal government was con- 
 stituted similarly to the parliament of Paris, the principal 
 functionaries being appointed by the king and responsible 
 to him. 
 
 The colony was practically ruled, however, by a trium- 
 rate composed of the governor, the bishop and the royal 
 intendant. There were a number of councillors varying 
 from Jive to seven, and then to twelve, with an attorney- 
 general and a chief clerk. 
 
 This sovereign or supreme council had charge of all the 
 affairs and business of Canada, formed a court of appeal, 
 collected the revenues, but had no power to levy taxes 
 except with the king's permission. The country was divided 
 for judicial and other purposes irtto three divisions, which 
 are still maintained, viz., Quebec, Montreal and Three 
 Elvers. 
 
 M. de Mesy was the first governor and Monseigneur 
 Laval the first bishop. 
 
 The royal government was acceptable to the inhabitants 
 
 b) This was by the treaty of St. Germain-en-Laye, 1632. 
 
252 GOVERNMENT IN CANADA. 
 
 of Quebec and they lived happily under it. It was suited, 
 and justly so, to Frenchmen and to Koman Catholics, and 
 one of the great causes of discontent, after the cession, 
 was that it was not and could not be suitable or acceptable 
 to Englishmen or to Protestants. At its basis for land 
 tenure were the feudal laws of the preceding centuries ; the 
 Coutume de Paris, the ancient laws of Prance, were its 
 guide in legal matters ; and the Catholic religion, as the 
 religion of the inhabitants, was recognized by the law of 
 the land. 
 
 The earliest treaty between France and England affect- 
 ing American territory is that of St. Germain-en-Laye, 
 1632. The English in 1629 made a descent on Quebec 
 and kept it for three years. They then gave it back, 
 Canada, New Prance and Acadia, without limits ; and it is 
 a peculiarity of all the treaties down to the Treaty of Paris, 
 1763, that the boundaries were not assigned. 
 
 After the Treaty of St. Germain-en-Laye, we find, in 
 1670, the Charter of Charles II. granting territory to the 
 Hudson Bay Company ; but this did not include any lands 
 then "possessed by the subjects of any other Christian 
 Prince or State." The treaty of Ryswick was concluded 
 twenty-seven years after the date of this charter, and by 
 it the forts and factories of Hudson Bay were restored to 
 the French — these having been taken from them by the 
 English in the preceding wars. Whatever territory that 
 might embrace was given back again to the English by 
 the treaty of Utrecht in 1713, — " the bay and straits of 
 Hudson, together with all lands, seas, coasts, rivers, and 
 places situate in the bay and straits and which belong 
 thereto." The treaty of Eyswick has an assertion on the 
 part of the French that the Kennebec is the eastern 
 boundary between them and Massachusetts ; the slice of 
 territory between that river and the St. Croix is now 
 
EAKLY DIVISIONS OF TKE CONTINENT CANADA. 253 
 
 withia the United States. The entire eastern coast, Nova 
 Scotia, Cape Breton, St. John (now Prince Edward Island), 
 Newfoundland, Labrador and Hudson Bay remain^ed to the 
 French by the treaty. 
 
 By the treaty to Utrecht, Nova Scotia, then called 
 Acadia, according to its ancient limits, together with the 
 whole of Newfoundland, was given up to England. The 
 French retained some reservations as to the English 
 fisheries in Newfoundland, and the English secured the fur 
 trade of the Hudson Bay. 
 
 The treaty of Aix la Chapelle in 1749 restored Cape 
 Breton with th6 islands of St. Pierre and Michelon to 
 France. Three years prior to this Cape Breton had been 
 taken by the English colonists. It is the only other treaty 
 down to the great treaty of 1763 that is taken up with the 
 shuffling of territory between these two powers. 
 
 In 1756 the seven years' war began in Europe, and it 
 could not be expected that the colonists of France and 
 England in America would be unaffected by it. The 
 English colonists met at Albany to adopt a line of com- 
 mon defence ; the French under the Marquis de Vaudreuil 
 were equally active in opposing them. 
 
 Thus the war began in the colonies, and after a pro- 
 tracted struggle, in which success now leaned to one side 
 and now to another, the chief strongholds of the French 
 were taken by the English, first Quebec and subsequently 
 Montreal. 
 
 On the 18th of September, 1769, Admiral Saunders, 
 General Townshead and M. de Eamezay signed the articles 
 of capitulation of Quebec. The principal terms were as 
 follows : — " The land forces, marines, and sailors of the 
 garrison to be accorded the honours of war, and to be con- 
 
254 GOVERNMENT IN CANADA. 
 
 veyed in British ships to the nearest port of France ; the 
 property of the inhabitants, as well as that of the officers, 
 both of those present and absent, to be inviolate and their 
 customary privileges to be preserved ; the free exercise of 
 the Eoman Catholic religion to be permitted, and safe- 
 guards granted to all religious persons, including the 
 Bishop, until the possession of Canada should be decided 
 between the Kings of England and Prance, and guards to 
 be posted at the churches, convents, and principal habita- 
 tions ; the sick and wounded of both sides to be equally 
 cared for, and the physicians and attendants upon them to 
 have every facility and assistance in the discharge of their 
 duties ; the artillery and public stores to be faithfully 
 given up, and a proper inventory taken." (c) 
 
 After the fall of Quebec the war continued for a whole 
 year. On the 8th of September, 1760, Montreal capitu- 
 lated to General Amherst. The capitulation was signed 
 by him and M. de Vaudreuil, the French Governor, and 
 contains fifty-five articles. 
 
 The first ten of these refer to the possession of the city, 
 the disposition of the troops, the magazines and munitions 
 of war and the care of the sick. The next sixteen are 
 taken up chiefly with the governors and officers of the 
 French King and their conduct to France. The twenty- 
 seventh and the seven following artcles refer to religion 
 and the religious communities, (d) 
 
 Articles 27 and 28 are as follows : — 
 
 Article 27. — The free exercise of the Catholic, Apos- 
 tolic and Eoman _ religion shall subsist entire, in such 
 
 (c) Miles' History of Canada gives this summary. Vol. I., page 420. 
 
 {d) It is somewhat remarkable that in the surrender of Champlain to 
 Sir David Kirkt in 1629, the terms of capitulation at Quebec and Mon- 
 treal in 1759-60, the treaty of Paris in 1763, the Quebec Act in 1774, and 
 the Constitutional Act of 1791, there should be, assurances for freedom 
 of worship. 
 
BAELY DIVISIONS OP THE CONTINENT CANADA 255 
 
 manner that all the states and people of the towns and 
 country places and distant posts shall continue to assemble 
 in the churches, and to frequent the sacraments as here- 
 tofore, without being molested in any manner, directly or 
 indirectly. These people shall be obliged by the English 
 government to pay to the priests the tithes and all the 
 taxes they were used to pay, under the government of his 
 most christian majesty. 
 
 Answer. — Granted, as to the free exercise of their 
 religion. The obligation of paying the tithes to the priests 
 will depend on the king's pleasure. 
 
 Article 28. — The chapter, priests, cures, and missionaries 
 shall continue, with an entire liberty, the exercise and 
 functions in the parishes of the towns and country. 
 
 Answer. — Granted. 
 
 The remaining articles are devoted chiefly to different 
 classes of people — French, Canadians, Acadians, Indians 
 and others ; and except the 42nd article are not of great 
 importance. 
 
 In this article it was desired by the French commander 
 that "the French and Canadian inbabitants should con- 
 tinue to be governed according to the custom of Paris and 
 the laws and usages .established for this country." The 
 reply to this was that they should become subjects to the 
 king, which reply Attorney- General Maseres interpreted to 
 mean that these subjects were put on the same footing as 
 English subjects generally. Fortunately for the peace of 
 Canada, General Murray interpreted it in a much more 
 liberal sense. Attorney-General Thurlow in reporting on 
 the state of Canada refers to the capitulation in these 
 terms : — 
 
 " On the 8th of September, 1760, the country capitu- 
 lated in terms which gave to your Majesty all that belonged 
 to the French king, and preserved all their property, real 
 
256 GOVKENMBNT IN CANADA. 
 
 and personal, in the fullest extent, not only to private 
 individuals, but to the corporation of the West India com- 
 pany, and to the missionaries, priests, canons, convents, 
 etc., with liberty to dispose of it by sale if they should 
 want to leave the country. The free exercise of their 
 religion by the laity, and of their function by the clergy 
 was also reserved. 
 
 " There are those who think that the law of England, in 
 all its branches, is actually established, and in force in 
 Quebec. * * Others are of opinion that the Canadian 
 laws are unrepealed. * * Others again have thought 
 that the effect of the above mentioned proclamation [17th 
 October, 1763] and the acts which followed upon it, was to 
 introduce the criminal laws of England and to confirm 
 the civil law of Canada. In this number were two persons 
 of great authority and esteem: Mr. Yorke and Mr. De 
 Grey, then attorney and solicitor-general, as I recollect 
 from their report of the 14th of April, 1766. * * There 
 is not, they observe, a maxim of the common law more 
 certain than that a conquered people retain their ancient 
 customs till the conqueror shall declare new laws. To 
 change at once the laws and manners of a settled country 
 must be attended with hardships and violence. * * It 
 is the more material that this policy should be pursued in 
 Canada, because it is a great and ancient colony, being 
 settled and much cultivated by French subjects who now 
 inhabit it to the number of eighty or one hundred 
 thousand." 
 
 Although Quebec and Montreal surrendered in this way, 
 it by no means followed that Canada had definitely changed 
 masters. The fate of Canada depended upon the termina- 
 tion of the war in Europe. The articles of surrender were 
 the interim terms for the adjustment of an international 
 difficulty, the result of which no one could confidently 
 
EARLY DIVISIONS OF THE CONTINEKT CANADA. 257 
 
 predict. The capitulations were to govern in the mean- 
 time, and both of them refer to the possible contingency 
 of Canada remaining a French colony, (e) 
 
 Canada was thus dealt with as between two commanders 
 on the fieldof battle. The consequent occupation was mili- 
 tary not diplomatic. In the same year France and Spain 
 entered into a secret alliance to make war on England, 
 and it was not till 1763 that the definitive treaty was 
 signed that effectually disposed of Canada. 
 
 In the interval very little alteration was made in the 
 political complexion of affairs. General Amherst, who 
 was the first English Governor General, recognized the 
 division of the province into three districts, and left Gen- 
 eral Murray in command at Quebec, General Gage at 
 Montreal, aud Colonel Burton at Three Eivers. The 
 " new subjects," as the French were called, were tranquil 
 under a state of things which differed only slightly from 
 their former state. Both English and French regarded 
 the military rule as a violation of the terms of capitulation 
 which insured to them the rights of British subjects, 
 "rights by which their persons were not to be disposed 
 of by any but their natural judges with their own con- 
 sent." 
 
 " It fell out," says Garneau, " that when they hoped to 
 enjoy legality under peaceful sway, they saw their tribu- 
 nals abolished, their judges expelled, and their whole 
 social organization upset, to make room for the most 
 insupportable of all tyranny, that of courts martial. 
 Nothing did more to isolate the government and alienate 
 the people from it than this conduct, long since repu- 
 diated by the law and customs of nations. Yet the colony 
 
 (e) The treaty that finally adjusted the differences of the French and 
 English is called a definitive treaty. 
 
 o's.G.c. 18 
 
258 GOVERNMENT IN CANADA. 
 
 remained four years under martial law. This epoch in 
 our aunals is designated as the " reign of the soldiery."(/) 
 
 The miHtary rule continued in effect until after the 
 publication of the treaty of Paris and was abolished by a 
 royal proclamation dated 17th October, 1763 — an impor- 
 tant state document which will be discussed in connection 
 with the treaty itself. 
 
 (/) Garneau's History of Canada. Vol. II., page 309. 
 
GOVEENMENT IN CANADA, 259 
 
 CHAPTEE II. 
 
 THE TREATY OF PARIS. 1763 TO 1774. 
 
 4th section of the treaty — Clause as to religious freedom, 
 opinions — Royal proclamation of 1763, islands given to 
 Nova Scotia, to Newfoundland — Assembly promised—^ 
 Governors, laws, courts, commissions — Petition for an 
 assembly, politics in England when Quebec Act was 
 submitted. 
 
 By the treaty of Paris, 1763, the seven years' war was 
 ended and the disputes of western Europe adjusted. By 
 it also the war between the English and French colonists 
 in America was terminated. 
 
 The treaty was concluded on the 10th of February, 1763, 
 and signed by the representatives of England, France 
 and Spain : Portugal assented to it. The fourth section is 
 as follows : 
 
 " His most Christian Majesty renounces all pretensions 
 which he has heretofore formed, or might form, to Nova 
 Scotia or Acadia, in all its parts, and guarantees the 
 whole of it, and all its dependencies, to the King of Great 
 Britain. 
 
 " Moreover his most Christian Majesty cedes and guar- 
 antees to his said Britannic Majesty, in full right, Canada, 
 with all its dependencies, as well as the island of Cape 
 Breton, and all the other islands and coasts in the Guif 
 and Eiver of St. Lawrence, and, in general, every thing that 
 
260 GOVERNMENT IN CANADA. 
 
 depends on the said countries, lands, islands and coasts, 
 with the sovereignty, property, possession, and all rights 
 acquired by treaty or otherwise, which the most Christian 
 King and the crown of France have had, till now, over the 
 said countries, islands, lands, places, coasts, and their 
 inhabitants, so that the most Christian King cedes and 
 makes over the whole to the said King, and to the crown 
 of Great Britain, and that in the most ample manner and 
 form, without restriction, and without any liberty to depart 
 from the said guaranty, under any pretence, or to disturb 
 Great Britain in the possession above mentioned. 
 
 " His Britannic Majesty, on his side, agrees to grant the 
 liberty of the Catholic religion to the inhabitants of Canada : 
 he will consequently give the most effectual orders, that his 
 new Eoman Catholic subjects may profess the worship of 
 their religion, according to the rites of the Komish church, 
 as far as the laws of Great Britain permit. 
 
 " His Britannic Majesty further agrees, that the French 
 inhabitants, or others, who had been the subjects of the 
 most Christian King in Canada, may retire with all safety 
 and freedom wherever they shall think proper, and may 
 sell their estates, provided it be to subjects of his Britannic 
 Majesty, and bring away their efifects, as well as their per- 
 sons, without being restrained in their emigration, under 
 any pretence whatsoever, except that of debts, or of criminal 
 prosecutions : the term limited for this emigration shall be 
 fixed to the space of eighteen months, to be computed from 
 the day of the exchange of the ratification of the present 
 treaty." 
 
 This treaty superseded the terms of the capitulation at 
 Montreal, and is to be regarded as of binding authority for 
 all time to come, so long as the law and honour of nations 
 are to be observed, (a) 
 
 . (a) It is an essential principle ot the law of nations that no power can 
 be releaised from the engagements of treaties, or modify their stipulations 
 except with the consent of the contracting parties amicably obtained. 
 This principle was recognized by Russia, Austria, Germany, Great 
 Britain, Italy and Turkey at the conference in London in 1871. 
 
THE TEBATY.OF PARIS. , 261 
 
 The last article, XXVI. reads : 
 
 " Their sacred Britannic, most Christian and Catholic, 
 and most faithful Majesties promise to observe sincerely 
 and bond fide all the articles contained and settled in the 
 present treaty ; and they will not suffer the same to be 
 infringed directly or indirectly by their respective subjects ; 
 and the same high contracting parties generally and recip- 
 rocally guarantee to each other all the stipulations of the 
 present treaty." 
 
 No comment is necessary here on the 4th section 
 except as to the exercise of religious liberty involved in the 
 last paragraph with the condition " as far as the laws of 
 Great Britain permit." What is the meaning of this 
 restriction ? 
 
 In 1763 these laws did not permit of any exercise of the 
 Eoman Catholic religion in England. The question was : 
 did these laws apply to a colony? Could it be fairly 
 assumed that the contracting parties had adopted a 
 provision rendering itself nugatory by the fulness of its 
 exception ? 
 
 Opinions were given by three attorney-generals, several 
 officers of the crown and others that none of the penal 
 statutes in force in England at that time applied to colonies 
 or to the Catholics in Canada, and that nothing affected 
 them except the 1st Act of Elizabeth, chap. 1, commonly 
 known as the Act of Supremacy. This was the only 
 statute applying to the colonies or outlying divisions of the 
 crown. 
 
 Attorney-General Maseres, writing about ten years after 
 the treaty says : 
 
 " Two senses may be put upon these words, ' as far as 
 the laws of G^eat Britain permit.' They may either be 
 supposed to mean that the Canadians shall be at libeVty to 
 
262 ■ GOVEENMENT IN CANADA. 
 
 profess the worship of the Eoman Catholic religion as far 
 as the laws of Great Britain permit that worship to be 
 professed in England itself, or that they shall be at liberty 
 to profess that worship as far as the laws of England 
 permit it to be professed in the outlying dominions of the 
 crown of Great Britain that are not parcel of the realm, 
 such as Minorca, Senegal, the West India Islands, and the 
 colonies of North America. The former of these senses I 
 acknowledge to be too narrow to be put upon these words, 
 because it would in a great measure destroy the grant of 
 the liberty of professing the worship of the Eomish religion 
 which these words were only intended to qualify and 
 restrain ; because in England itself the laws do not permit 
 the worship of the Eomish religion to be professed in any 
 degree. 
 
 " We must therefore have recourse to the latter sense 
 above mentioned and suppose these words to mean that 
 the Canadians should have the liberty of professing the 
 worship of their religion as far as the laws of England 
 permit it to be professed in the outlying dominions of the 
 crown that lie without the realm. . . . 
 
 " Now, upon making this enquiry we shall find that 
 though most of the penal and disqualifying statutes passed 
 against the professors of the Eomish religion relate only 
 to England and Wales, yet the Act of the first of Queen 
 Elizabeth, cap. 1, which is entitled 'An Act to restore to 
 the crown the ancient jurisdiction over the state ecclesiastical 
 and spiritual and abolishing all foreign powers repugnant to 
 the same,' which is commonly called the Act of Supremacy, 
 does expressly relate to all the Queen's dominions as well 
 as to the realm of England, and is even extended ' by 
 positive words to such countries and places as should at 
 any future time become subject to the crown of Eng- 
 land." 
 
THE TREATY OP PARIS. 263 
 
 He then seta out the effect of this statute of Elizabeth, 
 and adds in conclusion that " the British Nation is bound 
 by that article to grant to the Canadians the liberty of 
 professing the worship of the Roman Catholic religion only 
 so far as is consistent with that statute. (6) 
 
 So much as to this part of the treaty ; the boundaries of 
 Canada will be referred to later on. 
 
 By a royal proclamation dated at St. James Court, 
 October 7th 1763, the American acquisitions were divided 
 into four distinct and separate governments, Quebec, East 
 Florida, West Florida and Grenada, and the boundaries of 
 each were defined, (c) The government of Newfound- 
 land was enlarged so that the coast of Labrador and 
 the adjacent islands " from the river St. John's to Hudson 
 Straits, together with the islands of Anticosti and Madeleine 
 and all the smaller islands lying upon the said coast" 
 were placed under the care and inspection of its governor. 
 
 Under this proclamation also " the islands of St. John 
 and Cape Breton or Isle Eoyal with the lesser islands 
 adjacent thereto " were annexed to the government of 
 Nova Scotia. 
 
 It is afterwards promised in the proclamation that as 
 soon as the state and circumstances of the said colonies 
 will admit thereof, the governors will summon and call 
 general assefnblies in the same manner and form as the 
 other American colonies, with power to make laws for 
 the "public peace, welfare and good government" of the 
 inhabitants, as near as may be agreeable to the laws of 
 
 (6) See Cavendish's debates on the Quebec Act and opinions of Lord 
 Thurlow and Lord Loughborough in the Maseres coUectigj^; 
 
 (c) All the lands and territories not included within the limits of 
 Quebec and the Ploridas or within the limits of the Hudson Bay 
 Company and other lands to the west or north-west were reserved for 
 the use of the Indians. 
 
^64 GOVERNMENT IN CANADA. 
 
 England. In .the meantime all colonists could confide in 
 the royal protection for the enjoyment of the benefits of 
 the laws of the realm of England. 
 
 Then followed directions as to the establishing of courts 
 of judicature and public justice for hearing civil and criminal 
 cases, according to law and equity and as near as may be 
 agreeable to the laws of England with the right of appeal 
 to the privy council. 
 
 On the 21st of November following, Major General 
 Murray was appointed Captain General and Governor in 
 chief of Quebec province in America and all the territories 
 depending on it, to hold office during pleasure with very 
 elaborate instructions. Lieutenant-Governors were ap- 
 pointed at Montreal and Three Rivers and power given 
 as in the proclamations to summon a general assembly of 
 the freeholders and planters at their discretion. 
 
 It is not necessary to consider the terms of this com- 
 mission as no assembly was called. 
 
 General Murray issued a proclamation intimating that 
 in all legal procedure affecting the tenure of land and 
 succession to property, the laws and customs which had 
 been in use under the French domination were to be 
 followed, (d) 
 
 The Governor-General was also appointed vice-admiral 
 of Quebec, a title still retained, and a lengthy commission 
 on that point issued on the 19th of March, 1764. 
 
 By an ordinance of the 17th September 1764, it was 
 declared that in the supreme court sitting at Quebec His 
 Britannic Majesty was present in the person of his chief 
 justice and had full powei: to determine all civil and 
 
 {d)' Garneau's Canada, Vol. Ill, 317. Tlie writer has not seen the text 
 of this proclamation. 
 
* THE TEEATY OF PARIS. 265 
 
 criminal cases|^ agreeable to the laws of. England, and to 
 the ordinances of this province. 
 
 On the 3rd of February 1766, William Hey was appointed 
 chief justice, and in September of the same year Francis 
 Maseres was named attorney-general in the room of 
 George Suckling. 
 
 In looking through these and other commissions, espec- 
 ially one to Captain] Schlasser as justice of the peace, 
 reference is made to administration of the laws of England 
 and of Canada, and this uncertainty of what law was in 
 force became at length the real difficulty between the French 
 and English inhabitants. 
 
 In criminal proceedings the Canadians as well as the 
 English universally supposed the laws of England to be in 
 force. " No others are ever mentioned or thought of and 
 the Canadians seem to be very well satisfied with them." 
 
 A report on the state of the law in Quebec and sugges- 
 tions were made by attorney-general Maseres in 1769 to 
 Sir Guy Carleton, who rejected the report and sent in one 
 prepared from other sources. Chief Justice Hey also 
 reported on the difficulties. 
 
 In 1773, no council being summoned in pursuance of 
 the promise made in 1763, the English subjects petitioned 
 the English government and a draft Act was prepared, 
 which, however, is not now deserving of consideration as 
 the government refused to pass it. The Quebec Act was 
 passed in its place. 
 
 During these ten years prior to the Quebec Act several 
 other offices were filled ; a receiver general was appointed 
 in 1765, and a license to preach and perform divine service 
 according to the ceremonies of the Church of England was 
 
266 GOYEKNMENT IN CANADA. 
 
 granted in 1768 to Eev. Mr. DeMontmollin. There were 
 besides these some other commissions. 
 
 Before describing the Quebec Act, it may be well to 
 regard the starting point of our constitutional history with 
 more immediate reference to English politics and the 
 great statesmen who figured in the councils of the nation 
 at this time. The student of constitutional history in 
 Canada must keep his eye on the events of history in 
 England as well as in his own country — at least since the 
 reign of George III. These events are often as necessary 
 to be considered as the events in our own country. 
 
 During the reigns of the first two Georges, England had 
 been engaged in many wars, and the general result was 
 far from gratifying to the English people. No great 
 minister had been found to fill the place of Horace Walpole. 
 George II. in 1759 reluctantly placed Wm. Pitt in charge 
 of foreign affairs. He it was who conducted the war in 
 Canada to a successful issue ; but the treaty of Paris was 
 concluded under the Grenville ministry which came in after 
 the resignation of Lord Bute, Pitt's successor. These, with 
 Lord Eockingham and Lord North, Mr. Fox and Mr. 
 Wilkes are names famous then and in later times. Pitt 
 espoused the cause of the colonists whom the Grenville 
 ministry taxed. 
 
 Grenville and Bute were concerned in the notable pro- 
 ceedings for libel against John Wilkes and his newspaper 
 the "North Briton." Eockingham professed in opposition 
 a policy towards the Americans, which if sincere was a 
 prudent and wise one. North's name appears very soon in 
 our history, Edmund Burke and Charles James Fox figure 
 in the debates, and Camden, Mansfield, and Campbell in 
 the decisions of the court. 
 
 This was the period too of some important constitutional 
 questions in England. In the first year of the reign of 
 
THE TEEATY OF PARIS. 267 
 
 George III. it was held that the tenure of o£Bce of the judges 
 ■was not dependent on the life of the sovereign who 
 appointed them, but that they held office during good conduct. 
 
 Another very important principle was admitted when 
 Grenville, on assuming office, was held responsible for 
 every act or circumstance which led to his appointment. 
 ' " This principle," says Mr. Yonge in his constitutional 
 history, " was established in the fullest manner in 1834, 
 when Sir Eobert Peel admitted his entire responsibility 
 for dismissal of Lord Melbourne by King William IV., 
 though it was notorious that he was in Italy at the time 
 and had not been consulted in the matter." 
 
 The Wilkes case already referred to is most instructive 
 in the law of criminal libel and among other things is 
 authority in the language of Lord Campbell " that privilege 
 of parliament should not be permitted to interfere with the 
 criminal law of the country." General warrants since this 
 trial have been considered illegal. 
 
 Later on, when Lord Eockingham became minister a 
 second time in 1789, a resolution was passed that expul- 
 sion does not incapacitate a member from immediate 
 re-election. 
 
 One good resulting from these agitatio-ns of the powers 
 of the commons was the publication of the debates in full. 
 In 1771, the house enquired into the unfairness of reports 
 and many printers were imprisoned for presuming to make 
 known the proceedings. After a time the government 
 ceased punishing and silently acquiesced in the publication 
 while retaining a standing order to deal with the question 
 as might be necessary. 
 
 It was in such times and with these men as rulers, that 
 England assumed the management of Canada and its 
 dependencies. 
 
268 ' GOVERNMENT IN CANADA. 
 
 CHAPTEE III. 
 
 . THE QUEBEC ACT. — 1774 TO 1791. 
 
 Petitions for the bill, Mr. Maseres, reports of the debates — 
 Boundaries of Quebec — Provisions as to religious wor- 
 ship, ciinl law of Canada to prevail, criminal law of 
 England in force — Feeling in the other colonies in 
 America — Government by advising council, no assembly 
 — Establishment of courts, habeas corpus— Sir Guy 
 Carleton, commissions issued, division of Western 
 Canada, discontent under the government, preparations 
 for a change in mode of government. 
 
 Attoeney-Geneeal (afterwards Baron) Maseres prepared 
 a draft Act for the government of Canada, but it was 
 deemed unsuitable to the needs of the people by the Gover- 
 nor, Sir Guy Carleton, and was disregarded by the British 
 ministry. It was framed on a narrow and injudicious plan 
 practically excluding every Frenchman from having any 
 share in the government. There were at this time about 
 70,000 inhabitants in the colony, of whom possibly not 
 500 were Englishmen, (a) It was unreasonable to suppose 
 that the rights of the ancient subjects could be entirely 
 disregarded. The British ministers had no lack of material 
 for the Quebec Act. A number of petitions were sent from 
 
 (a) The actual number given is 360. 
 
THE QUEBEC ACT. 269 
 
 Quebec by tbe French and English inhabitants, and one 
 by the London Board of Trade. Lord North assumed the 
 charge of the bill in the commons and the Earl of Dart- 
 mouth in the Lords. The debates on the passage of the 
 bill are reported in a volume of 300 pages and named Sir 
 Henry Cavendish's Eeport. (b) Sir Guy Carleton was 
 examined in reference to the subject of the bill, as was also 
 Chief Justice Hey and one Dr. Marriott. Lord Lough- 
 borough (the solicitor-general), Mr. Charles Fox, Lord 
 North, Edmund Burke and many others took part in the 
 discussion. The bill was carried by a large majority — 
 319 to 65 — and became law on the 1st of May, 1775. 
 
 It begins by reciting the treaty of Paris, 1763, and the 
 proclamation of the same year, with the defect in the latter 
 as to the narrow boundaries of Quebec. The boundaries 
 as set out in the proclamation, extend from the river St. 
 John oil the Labrador coast to the south side of Lake 
 Nipissing, then towards Lake Champlain and the 45th 
 parallel of latitude along the highlands to the Bay of 
 Chaleurs and across the St. Lawrence west of Anticosti to 
 the place of beginning.- The extended limits are given as 
 follows : 
 
 "All the territories, islands, and countries in North 
 America, belonging to the crown of Great Britain, bounded 
 on the south by a line from the bay of Chaleurs, along the 
 high lands which divide the rivers that empty themselves 
 into the river St. Lawrence from those which fall into the 
 sea, to a point in forty-five degrees of northern latitude, on 
 the eastern bank of the river Connecticut, keeping the 
 same latitude directly west, through the lake Champlain, 
 until, in the same latitude, it meets the river St. Lawrence ; 
 from thence up the eastern bank of the said river to the 
 
 (6) The genuineness of these reports has been questioned, but appa- 
 rently without any foundation. 
 
270 GOVERNMENT IN CANADA. 
 
 lake Ontario ; thence through the lake Ontario, and the 
 river commonly called Niagara ; and thence along by the 
 eastern and south-eastern bank of lake Erie, following the 
 said bank, until the same shall be intersected by the 
 northern boundary, granted by the charter of the province 
 of Pennsylvania, in case the same shall be so intersected ; 
 and from thence along the said northern and western boun- 
 daries of the said province, until the said western boun- 
 dary strike the Ohio ; but in ease the said bank of the said 
 lake shall not be found to be intersected, then following the 
 said bank until it shall arrive at that point of the said bank 
 which shall be nearest to the northwestern angle of the said 
 province of Pennsylvania, and thence, by a right line, to 
 the said northwestern angle of the said province ; and 
 thence along the western boundary of the said province, 
 until it strike the river Ohio ; and along the bank of the 
 said river westward, to the banks of the Mississippi, and 
 northwards to the southern boundary of the territory 
 granted to the merchants-adventurers of England, trading 
 to Hudson's Bay; and also all such territories, islands, 
 and countries, which have, since the 10th February, 1763, 
 been made part of the government of Newfoundland, be, and 
 they are hereby, during His Majesty's pleasure, annexed to, 
 and made part and parcel of the province of Quebec, as 
 created and established by the said royal proclamation of 
 the 7th of October, 1763." 
 
 The Act then repealed the proclamation of 1763 and all 
 commissions and ordinances thereunder, referring at the 
 same time to the fact that the civil government so estab- 
 lished was inapplicable to the state and circumstances of 
 the province. 
 
 It then enacts " That His Majesty's subjects professing 
 the religion of the Church of Eome of and in the said 
 province of Quebec may have, hold and enjoy the free exer- 
 cise of the religion of the Church of Eome subject to the 
 King's supremacy declared and established in the first year 
 of the reign of Queen Elizabeth, and the clergy of the 
 said church may hold, receive and enjoy their accustomed 
 dues and rights with respect to such persons only as shall 
 profess the said religion. 
 
THE QUEBEC ACT, 271 
 
 " Provided, nevertheless, that it shall be lawful for His 
 Majesty, his heirs and successors to make such provision 
 out of the rest of the accustomed dues and rights for the 
 encouragement of the Protestant religion, and for the 
 maintenance and support of a Protestant clergy within the 
 said province, as he or they shall, from time to time, think 
 necessary and expedient." 
 
 Then follows an oath in substitution of the oath required 
 for Catholics under the Act of Elizabeth, and which is 
 virtually the present oath of allegiance. The statute im- 
 posed no insuperable difficulty ; it required all priests and 
 other ecclesiastical persons to take the oath, but, in the 
 event of their refusing, it annexed no penalty beyond the 
 deprivation of their benefices or other spiritual promotions. 
 
 The pext section goes on to confirm all His Majesty's 
 subjects (the religious orders and communities only 
 excepted) in their property and possessions and in all 
 their civil rights, regarding which all controversies should 
 be decided by the laws of Canada. 
 
 The criminal law of England, as well in the description 
 and quality of the offence as in the method of prosecution 
 and trial and the punishments and forfeiture thereby 
 inflicted, was continued in the province. 
 
 The Act then recited that it would be inexpedient at 
 that time to summon an assembly and so made provision 
 for a council not exceeding 23 or less than 17 which might 
 make ordinances with the consent of the Governor ; depriv- 
 ing it however of any authority to levy taxes except for 
 roads or public buildings. 
 
 A few unimportant provisions followed as to the passing 
 and approbation of these ordinances, with an express 
 clause that no ordinance respecting religion was to be in 
 
272 GOVERNMENT IN CANADA. 
 
 force without His Majesty's approbation. There was also 
 a saving clause as to the right of the crown to establish 
 civil, criminal and ecclesiastical courts. 
 
 The Act closes with a declaration that all Acts of 
 parliament in reference to the trade and commerce of the 
 American plantations are in force in the province of Quebec. 
 
 This Act was passed in June 1774, but the revocation 
 and annulling of the commissions and ordinances under 
 the royal proclamation were not to take effect till the Ist of 
 May, 1775. 
 
 It will be seen that the Act was framed largely to meet 
 the wishes of the French Canadians. It was directly 
 opposed to a number of petitions from the English inhabi- 
 tants of Quebec and their friends in London. It was 
 opposed also to the arguments, reports and letters of Mr. 
 Maseres, who had left Canada in 1769, and who was the 
 warm though injudicious advocate of the cause of the 
 minority in Canada, (c) 
 
 A few months after the Quebec Act was passed the first 
 symptoms of the American revolution appeared ; the Act 
 itself was pointed at by the other colonists as an indication 
 of the injustice of the mother country. 
 
 The principal features of the Quebec Act are the enlarg- 
 ing of the boundaries of that province, the re-introduction of 
 French or Canadian law and the recognition of the Catholic 
 Church. The criminal law of England was retained. No 
 assembly was granted, but in its stead an advising council. 
 The province of Quebec as enlarged by this Act included 
 not only Ontario and Quebec as they now exist but five 
 
 (c) The reader will find a, full aooount of "The proceedings of the 
 British and other Protestant inhabitants of the province of Quebec in 
 North America, in order to obtain a House of Assembly in the province " 
 in a book so entitled, a copy of which is in the Toronto Public Library 
 
THE QUEBEC ACT. 273 
 
 states of the American union and part of.a sixth viz., Ohio, 
 Indiana, Illinois, Michigan, Wisconsin and that portion of 
 Minnesota north of the Mississippi river and east of the 
 meridian line passing through the source of that river, 
 probably the 95th degree of longitude west from Green- 
 wich, {d) 
 
 The other features of the Act, especially as regards the 
 civil law, were fruitful sources of discontent in the pro- 
 vince. 
 
 In 1775 the American congress addressed a proclamation 
 to the Canadians asking them to seize the favorable 
 opportunity presented to them "to play their part in the 
 glorious conquest of American independence." Delegates, 
 among whom was the celebrated Dr. Franklin, were sent 
 as commissioners to incite the people against their new 
 rulers and to join in the revolution. " The Canadians 
 could not but remember," says Garneau, speaking of 
 Franklin, " how eager he was to stimulate the British 
 people to make a conquest of their country some 15 years 
 before. He soon perceived that the quest be was sent on 
 would prove bootless." 
 
 The council on account of the war did no business in 
 1776, bui there was a session with closed doors in the 
 following year ; twenty-three members were present, fifteen 
 English and eight Canadians, and was taken up chiefly 
 with applications on personal business. 
 
 The first ordinance passed under the Quebec Act is 
 dated February 1777 ; it establishes the civil courts of 
 judicature in the province of Quebec. The province is 
 divided into two great districts named Montreal and 
 
 (d)-As settled by the judicial committee of the privy council in the 
 Ontario Boundary Case. 
 
 o's.G.c. 19 
 
274 GOVERNMENT IN CANADA. 
 
 Quebec and a court of common pleas established in each. 
 An appeal lay from these courts to the court of appeal, 
 which was composed of the Governor in council or chief 
 justice presiding, and at least five members of the executive 
 council. An appeal lay from this court to the privy council 
 in England. Other ordinances regulate the procedure in 
 the courts, the establishment of a court of king's bench 
 for criminal justice, and matters varying from the ragula- 
 tion of the rate of interest, the conduct of sales, the 
 weight of bread and the sale of liquors, to the provincial 
 currency and the formation of a militia. 
 
 In 1776, a difficulty arose between C. J. Livius and 
 Governor Carleton which led to the resignation of the 
 former. The question was as to the constitution of the 
 privy council and the irregularity of proceedings in the 
 province. The result was that after addresses and peti- 
 tions the chief justice, though exonerated, refused to 
 return to Canada. 
 
 One effect of the American revolution was an Act passed 
 in the eighteenth year of Geo. III., and which is suffi- 
 ciently indicated by its title. It was " an Act for remov- 
 ing all doubts and apprehensions concerning taxation by 
 the parliament of Great Britain in any of the colonies, 
 provinces, and plantations in North America and the West 
 Indies ; and for repealing so much of an Act made in the 
 seventh year of the reign of his present Majesty, as im- 
 poses a duty on tea imported from Great Britain into any 
 colony or plantation in America, or relates thereto." 
 
 In 1778 Sir Guy Carleton, feeling aggrieved at not being 
 appointed to the place accorded to General Burgoyne in 
 the colonial command, retired and was succeeded by 
 General Haldimand. He was enjoined by his commission 
 to proclaim in the colony the writ of Habeas Corpus, and 
 
THE QUEBEC ACT. 275 
 
 he was forbidden even in time of trouble to confine any 
 subject without the advice and approbation of the legislative 
 coancil. But Haldimand was an old soldier imperious 
 and severe, and believed he could maintain obedience only 
 by inflexible rigour, and the result was that he imprisoned 
 citizens by the hundreds without distinction and whether 
 they were innocent or guilty, (e) His last official act was 
 in 1785 to publish an ordinance under authority of an 
 Imperial Act of the previous year introducing the writ of 
 Habeas Corpus such as it is in England, and it is in virtue 
 of this that the Act is still in force. The term of office of 
 this military governor was not without some points of 
 interest. He caused a census to be taken in which the 
 population in 1784 is put down at 113,032. He had a 
 dispute with an ancient subject Du Calvet, as his prede- 
 cessor had with a former chief justice, and a violent 
 and acrimonious controversy about the administration of 
 justice. (/) 
 
 In 1786, General Carleton under the title of Lord 
 Dorchester returned to Canada as Governor-General, and 
 shortly afterwards took the title of vice-admiral which is 
 still retained. He appointed committees of enquiry into 
 the state of the laws of commerce, of police and of 
 education ; and the information received in this way laid 
 the foundation of the Constitutional Act of a few years 
 later. The Governor turned his attention to the western 
 part of his province. What is now the province of Ontario 
 had received a large accession to its numbers by the 
 influx of the New England loyalists. In 1788, he divided 
 
 (e) So it is stated by several writers ; some say that the first Act of 
 Henry Hamilton, the successor of Haldimand, was the publication of the 
 introduction of Habeas Corpus. 
 
 (/) For a very fair epitome of Du Calvet's propositions see Dontre and 
 Lareau'B History of the French law. Garneau is very full on the same 
 subject. 
 
276 GOVERNMENT IN CANADA. 
 
 the country into five districts which may be roughly set 
 down as follows : 
 
 From Lancaster west to Gananoque, Lunenbueg. 
 
 West of this to the river Trent, Meghlenbueg. 
 
 West of this as far as Long Point, 
 
 on Lake Erie, Nassau. 
 
 All the remaining part of what is 
 
 now the province of Ontario, Hesse. 
 
 South of the St. Lawrence and 
 
 east of Cape Chat. Gaspe. 
 
 The Council during the ten years since his last term of 
 office had been of little account, and all parties were now 
 looking to England for a constitutional form of government. 
 The Habeas Corpus Act had been a great step in introducing 
 English law, but a large majority of the council presented 
 an address to the King, praying that he would maintain 
 intact the Quebec Act. This was in 1784, and the English 
 government thought the country was not yet in a fit state to 
 elect members to a popular assembly. 
 
 •The people, however, proceeded from petitions to demands, 
 and the most conflicting views reached London as to what 
 was the best form of government for Canada. The British 
 ministry directed Lord Dorchester to collect information 
 and report on the state of the colony. As may be expected, 
 this was not obtained without great difference of opinion. 
 There were reports on the administration of justice, on 
 trade, on the manner of holding landed property, on edu- 
 cation and on other subjects. There was a difference of 
 opinion between the chief justice and a former attorney- 
 general, M. Maseres, as to whether the English laws were 
 in force, though the chief justice found himself in a 
 minority. The view was presented that the English laws 
 generally were not binding under the statutes. 
 
THE QUEBEC ACT. 277 
 
 The reports of the several committees were sent to the 
 ministry in England, though it was over two years before 
 the Act was taken into consideration. 
 
 In 1789, Lord Grenville, as colonial minister, sent out a 
 draft constitution to Lord Dorchester in order to get his 
 advice and suggestions. 
 
 The Governor rejjorted against the division of the province 
 of Quebec, but, as will be seen, the English ministry deemed 
 it advisable to separate the two races. 
 
 The Quebec Act, as a charter of government, was in force 
 about sixteen years ; the next change was the Constitutional 
 Act of 1791. 
 
278 GOVBENMENT IN CANADA. 
 
 CHAPTER IV. 
 
 THE DIVIDED CANADAS. 1791 TO 1841. 
 
 Petitions preceding this Act, Mr. Lymberger's desire to repeal 
 Quebec Act, for a new constitution, for one province — 
 English population, disappointment — King's message, 
 'principal parts of the Act, division into Upper and 
 Lower Canada, legislative council and legislative assembly 
 for each, courts, tenure of land, reservation of certain 
 bills, clergy reserves — Provisions for Protestant clergy, 
 for Roman Catholic clergy, tithes — Discontent, councillors , 
 governors, suspension of constitution in Lower Canada, 
 rebellion — Reports, Lord Durham. 
 
 What Mr. Maseres did for his friends in 1774 Mr. Adam 
 Lymberger did for his in 1791. This gentleman was the 
 agent for the English colonists and appeared in their 
 behalf before the bar of the house of commons. When the 
 bill "was introduced, he desired a repeal of the Quebec 
 Act ; he opposed a division of the province and he asked for a 
 new constitution " unclogged and unembarrassed with any 
 laws prior to it." He considered that the French Canadians 
 being over thirty years under British rule had an oppor- 
 tunity to acquire more of the customs and manners of his 
 constituents, and that therefore having studied the English 
 eonstitution and its laws they were able to appreciate 
 them. He put forward with great eloquence the claims of 
 the loyalists of 1785. He considered it the duty of the 
 
THE DIVIDED CANADAS. 279 
 
 government, in kindness to its subjects to weed out gently 
 and by degrees, certain prejudices of tbe French Canadians. 
 He insinuated that the government was formerly misled by 
 the French Canadians and their petitions when the Quebec 
 Act was passed, and having glanced at the uncertainty 
 of the laws in force, requested the introduction of the laws 
 of England with some variations that occurred to him as 
 being best for all parties. In fact he supplied to Mr. Fox 
 and others of the opposition a great part of their arguments 
 as far as they opposed the bill. 
 
 Compared with the opposition used against the passing 
 of the Quebec Act he was consistent and reasonable. The 
 English colonists had increased to about 100,000 — the 
 French numbered 225,000, — so that it was not the claims of 
 a few hundreds he was putting forward. He did not ask, 
 as the Maseres party did, that the French should be 
 excluded from all offices and all representation in the 
 assembly and council. He objected to two legislatures 
 and to the division of the provinces, though it was specially 
 asked that the common law of England should be the rule 
 in what was afterwards Upper Canada, in case a division 
 were made. The chief object was undoubtedly to get a 
 repeal of the Quebec Act and of all the laws under it. 
 
 It cannot be said that Mr. Lymberger was successful. 
 Mr. Pitt's government divided the province — it did not 
 repeal the Quebec Act, it gave no new constitution, but 
 allowed each province to deal with that question within its 
 own boundaries. In February 1791, the King sent a 
 message to the house of commons to the effect that a 
 division of the province of Quebec was for the benefit of his 
 subjects, and that one part be named Upper and the other 
 Lower Canada ; he recommended a permanent appropria- 
 tion of lands for the support and maintenance of a 
 Protestant clergy, "and it is His Majesty's desire that 
 
280 GOTEBNMENT IN CANADA. 
 
 such provision may be made with respect to all future 
 grants of land within the said provinces respectively, as 
 may best conduce to the same object," consenting that the 
 house may make regulations therefor. 
 
 The bill was presented within a few days of the message 
 and in the month of March the petitions against it were 
 heard and the discussion upon it took place. The Bill 
 passed into law on the lOth of June 1791, and is entitled 
 " An Act to repeal certain parts of an Act passed in the 
 14th year of His Majesty's reign entitled 'an Act for 
 making more effectual provision for the government of the 
 province of Quebec, in North America,' and to make 
 further provision for the government of the said province." 
 
 The preamble of the Act recites that the Quebec Act was 
 in many respects inapplicable to the present condition and 
 circumstances of the province and that further provision 
 was necessary for its good government and prosperity. 
 
 It then repealed that portion of the Act relating to the 
 appoint ment of a council having power to make ordinances 
 for " the peace, welfare and good government of the 
 province," and proceeded to provide a legislative council 
 and a legislative assembly for Upper and Lower Canada. 
 This occupies thirty sections of the Act. Upper Canada 
 was provided with a legislative assembly of sixteen elected 
 members and seven councillors nominated by the crown. 
 The corresponding members in the eastern province were 
 fifty elected and fifteen nominated members, (a) , The 
 population was about 150,000 of whom about four-fifths 
 were of French origin residing in Lower Canada, and one 
 fifth English in Upper Canada. 
 
 (a) There is a provision in the Act having in view the creation of an 
 aristocracy, but it was never attempted to be piit in practice. 
 
THE DIVIDED CANADAS. 281 
 
 After describing the fotm of government in this way, 
 provincial courts of appeal were constituted — these being 
 composed of the Governor and executive council until other- 
 wise altered by the legislature. The English tenure of 
 land in free and common socage was to apply to Upper 
 Canada and might be extended to the other province. Bills 
 of the local legislatures respecting ecclesiastical rights and 
 waste lands of the crown were to go to England before 
 being assented to. 
 
 The recommendation in the King's message and the 
 consequent legislation thereon in relation to the reservation 
 of lands for the support of a Protestant clergy and the 
 endowment of rectories gave rise to the Clergy Eeserves. 
 These reserves were to be equal in value to the one-seventh 
 part of the secular lands, and the rents arising from them 
 were to be devoted exclusively to the maintenance and 
 support of a Protestant clergy, (b) This reservation was 
 abolished in 1840 and the provisions as to parsonages and 
 incumbencies were repealed in 1851. 
 
 Provision was made in regard to the Eoman Catholic 
 clergy, continuing and enforcing "their accustomed dues and 
 rights with respect to such persons only as should profess 
 the said religion," as declared in the Quebec Act, and in 
 pursuance of the instructions to Sir Guy Carleton and Sir 
 Frederick Hamilton, two of the previous Governors. The 
 instructions were to protect Protestants from being liable 
 to pay tithes for the support of the Eoman Catholic clergy. 
 The Act of 1791 applied their tithes to their own clergy. 
 Tithes were enforceable in Upper as well as in Lower 
 
 (6) Besides this aid to the Church of England, the legislature of Upper 
 Canada for some years previous to the rebellion in 1837 gave assistance 
 both for the erection of churches and the support of ministers to the 
 Eoman Catholics, the Presbyterians and the Methodists. 
 
282 GOVEBNMENT IN CANADA. 
 
 Canada, (c) The provincial legislatures had control over 
 them, but bills in reference thereto were reserved for the 
 King's pleasure. 
 
 The new constitution went into force on the 26th of 
 December, 1791, and in the following May by a proclama- 
 tion of Alured Clark, administrator, the old province of 
 Quebec ceased to exist, and in its place appeared Upper and 
 Lower Canada, (d) The proclamation divided each section 
 into districts and counties, and fixed the number of those 
 who would be called for the first time to represent the 
 electors in the legislative assemblies. 
 
 After the elections the new representatives met, thosa 
 for Upper Canada at Newark, now Niagara, on the 18th 
 of September, 1792, and those for Lower Canada on the 
 17th of December following at Quebec. Governor Simcoe 
 presided in Upper Canada. In both provinces a speaker 
 was appointed and the usages and formalities of the English 
 parliament adopted as nearly as might be. In the eastern 
 province the question of race arose at once in the choice of 
 
 (c) Mention is made of tithes for the Roman Cathohc clergy in G-len- 
 garry and in Sandwich. They were abolished in Upper Canada by 2 
 Geo. I. cap. 32. In the very early part of the French regime tithes 
 were the one-thirteenth of all revenue derived from labour and from the 
 natural products of the soil, forests and waters ; but for more than two 
 hundred years the tithes have been the oue-twenty-sixth part and are 
 restricted to growing produce. It is somewhat singular that the word 
 dixmes or tithes should be used for these fractions. 
 
 (d) The dividmg line was fixed by an order of the King in council dated 
 in August, 1791, and is as follows : 
 
 " Commencing at a stone boundary on the north bank of Lake St. 
 Francis, at the cove west of the Point au Baudet, in the limit between 
 the township of Lancaster and the seigniory of New Longueil ; running 
 along the said limit in the direction of north, 34 degrees west to the 
 westermost angle of the said seigniory of New Longueil ; tbence along 
 the north-west boundary of the seigniory of Vaudreuil, running north 25 
 degrees east, until it strikes the Ottawa river ; to ascend the said river 
 into Lake Temiscaming ; and from the head of the said lake by a line 
 drawn due north nntil it strikes the boundary line of Hudson's Bay -, 
 including all the territory to the westward and southward of the said 
 line, to the utmost extent of the country commonly called or known by 
 the name of Canada." 
 
THE DIVIDED OANADAS. 283 
 
 a speaker and of the language of the house, and it resulted 
 in a compromise, the adoption of both languages. M. 
 Panet was the speaker at Quebec, Mr. McDonell at Newark. 
 The seat of government in Upper Canada remained at 
 Newark for three years, and in 1799 it was removed to 
 York. 
 
 Mr. Miles writing of the Act of 1791 says : 
 
 " The first 15 or 16 years' experience of the new consti- 
 tution was rather encouraging as those concerned in 
 working it out during that period exerted themselves in 
 keeping out of sight the causes of discord. Through the 
 accession of officers of the army and disbanded soldiers, as 
 well as the influx of immigrants from the British Isles, the 
 population increased rapidly, especially in Upper Canada, 
 where it exceeded 80,000 in the year 1805. But, as has 
 been already mentioned, the constitution of 1791, -did not 
 secure the extinction of former causes of dissension, while 
 it introduced new elements of discord. In each province 
 there was created an irresponsible body, which the Governor 
 or Lieutenant-Governor was empowered to establish under 
 the title of an executive council, and which was in fact, 
 constituted by the selection chiefly of members of the 
 legislative council. Some were judges and men receiving 
 salaries as public officers. In Lower Canada in addition 
 to the fact that legislative councillors and ]3aid public 
 officials formed the great majority of the executive council, 
 natives of the province were very seldom admitted, nor, as 
 respects religion, were the Eoman Catholics represented, 
 although a seat was conferred on the chief protestant 
 ecclesiastic while the members of his communion did not 
 form one-twentieth part of the population. These circum- 
 stances, so opposite in principle to the policy of represen- 
 tative government which has since prevailed in Canada, 
 gave much offence to the majority of the inhabitants and 
 
284 GOVBENMBNT IN CANADA. 
 
 rendered harmony impossible. Former feeliiigs of animo- 
 sity were revived." 
 
 In Lower Canada, also, the popular representation re- 
 sulted generally in the exclusion of Englishmen ; the legis- 
 lature and executive councils as generally excluded French- 
 men. The governors had the councillors on their side and 
 had the popular party against them. In this state of 
 affairs as early as 1806 it became almost impossible to 
 govern the province. The war of 1812-14 turned the 
 attention of all parties to the external enemies ; but after 
 it was settled, (e) the former difficulties presented them- 
 selves and new causes of strife were introduced. 
 
 It was soon evident that, notwithstanding the ample 
 machinery of government provided by the Act, the people 
 were not in possession of the controlling power. The power 
 was centred practically in the governors and their execu- 
 tives. In the eastern province the disputes between the 
 elected and the nominated branches of the legislature began 
 early ; but the sister province had grievances that culmi- 
 nated about the same time and in the same way — in 
 rebellion. The struggle in both was for the same objects — ■ 
 for responsible government — for liberty to enact laws in 
 accord with the popular wish — for restraining the power of 
 irresponsible governors. (/) 
 
 (e) By the treaty of Ghent, signed December 24, 1814:. 
 
 ( /) As regards the privileges of the Houses of Parliament or Assemblies 
 under the constitutional Act of 1791, a few cases appear. In 1812, Mr. 
 McDonell, member for Glengarry, complained of a breach of privilege 
 inasmuch as that the Deputy Clerk of the Crown issued a writ to have 
 him ai rested ; freedona from arrest of a member was claimed. The 
 offending attorney was dismissed from office but was almost immediately 
 reinstated. 
 , In the same season Mr. Nichol was arrested under the speaker's warrant ■ 
 and committed to gaol, but the Chief Justice had him set at liberty. The 
 Assembly then turned its attention again against the Chief Justice and 
 gave vent to its feelings by petitions to the throne, which the Admiral 
 Major-General Brock assured them would be laid before the Prince 
 Eegent. 
 
 No other encroachments on the privileges of the members arose till 
 1828, when the Adjutant-General of the Militia and the superintendent 
 
THE DIVIDED OANADAS. 285 
 
 The various governors had resorted to the constitutional 
 remedy of dissolving the legislatures when their proceedings 
 were distasteful to them. The result was that they ren- 
 dered themselves and their councillors extremely unpopular. 
 87,000 persons petitioned for the removal of Lord Dal- 
 housie ; 24,000 signatures were sent for the removal of Sir 
 John Colborne. In 1834, ninety-two resolutions were sent 
 from the lower province, with the effect that a commission 
 was appointed to report on the affairs of that province. In 
 1838 a high commissioner was sent from Englahd to the 
 upper province. This was Lord Durham, whose report 
 is one of the features of our constitutional history, (g) The 
 outcome of these reports was that the two provinces, after 
 a separation of half a century were again united. The 
 population at that time may be roughly set down at one 
 million almost equally divided in race and religion. 
 
 of Indian affairs put themselves in contempt by not appearing before the 
 Bar of the House. Both of these were found guilty, and warrants were 
 issued for their arrest, under which they remained three days in prison 
 when the prorogation of the House set them at liberty. Sir Peregrine 
 Maitland, in official language declared that on all future occasions if the 
 propriety of this proceeding is confirmed by His Majesty, "no one will be 
 more ready than himself to recognize the privilege in question and to en- 
 force its observance by all whom it is his duty to control." Henry John 
 Boulton, Solicitor-General, fell under the displeasure of the House in re- 
 fusing to answer certain questions put to him by ft committee. He was 
 admonished and discharged. 
 
 In the following year Mr. (afterwards Sir) Allan McNab having re- 
 fused to answer certain questions was comraitted to gaol. This case was 
 brought into the Courts and Chief Justice Robinson upheld the committal. 
 
 The Legislature of the Lower Province was not behindhand in assert- 
 ing liks powers and privileges. As early as the second year of the Con- 
 stitution a like case to that of Mr. MoDonell as to freedom from arrest arose 
 in the case of Mr. John Young. He was arrested and reported the in- 
 dignity to the House of Assembly. The House declared that the arrest 
 of one of its members was a direct violation of one of its undoubted 
 rights ; apology was demanded from the sheriff and inserted in the jour- 
 nals of the Assembly. The sheriff and his bailiff appeared at the Bar 
 of the House and satisfied the wounded honor of Mr. Young. 
 
 In a subsequent session certain members objected to serving on a jury 
 panel, and the House absolved them from it. They expelled one member 
 who was convicted of the crime of conspiracy, and another charged with 
 perjury. The Legislative Council was held by the court to have the right 
 to commit for publication of libellous matter. 
 
 {;o-) Mr. Mills has said of it that "it laid the foundation of the political 
 success and social prosperity not only of Canada but of all the other 
 important colonies." 
 
286 GOVERNMENT IN CANADA. 
 
 CHAPTER V. 
 
 THE UNITED CANADAS, OTHER COLONIES. — 1840 TO 1867. 
 
 Lord Durham's report, recommendations — Act of Union, one 
 legislature, two houses, legislative council, legislative 
 assembly, duration, speakers — Governors, poivers, laws 
 continued — Amendments, elective councillors, seat of 
 government — Former governments in Nova Scotia, in 
 Neiv Brunswick, in Prince Edward Island, in British 
 Colwnbia-^Conventions at Charlottetoicn, at Quebec — 
 Confederation. 
 
 The year 1841 marks the beginniEg of representative 
 government in Canada. The Act of Union passed in the 
 preceding year was founded on the report of Lord Durham, 
 and it not only established a new order of things for 
 Canada, but also served as a model for colonial govern- 
 ment generally. It recommended that as far as possible 
 the colonists should be allowed to govern themselves, that 
 they should make and execute their own laws, that the 
 provinces should be united, and that the races and districts 
 should be represented in one legislature. It looked forward 
 to a complete system of municipal institutions and to the 
 independence of the judges. All provincial officers except 
 the Governor should be responsible to the people and all 
 questions of internal goverment dealt with by the local 
 legislature. Trade, foreign relations, the disposal of the 
 public lands and the constitution of the country he recom- 
 
THE UNITED CANADAS, ETC. 287 
 
 mended should be left to imperial management; the law 
 as it stood in regard to clergy reserves should be repealed. 
 The prospect of a union of the other provinces was fore- 
 shadowed, but it was a legislative rather than a federal 
 union. Though all the recommendations of the dis- 
 tinguished commissioner were not carried into effect by the 
 subsequent Act of Union, it embodied the chief features of 
 the report. 
 
 The Imperial Act, 3 and 4 Viet., cap. 35, came into force 
 in 1841 and declared that the provinces of Upper and 
 Lower Canada should by virtue of a proclamation form one 
 province to be called Canada. One legislative council and 
 an assembly were constituted, to be called " The Legislative 
 Council and Assembly of Canada " ; and within the pro- 
 vince her Majesty, by and with the advice and consent of 
 this body, was empowered to make laws for the peace, 
 welfare and good government of the same, such Jaws not 
 being repugnant to such portions of former constitutional 
 Acts as remained unrepealed. 
 
 Legislative councillors, not fewer than twenty, were to 
 be appointed. They were required to be of the full age of 
 twenty-one years and natural born or naturalized subjects 
 of her Majesty. They held office for life. Provision was 
 made for vacancies by resignation, absence, adhesion to a 
 foreign state, bankruptcy, etc., leaving the trial of any ques- 
 tion on these points to the Governor and the council. The 
 Governor appointed the speaker and might remove him 
 and appoint another. Ten members, including the speaker, 
 formed a quorum, and when the voices were equal the 
 speaker had a casting vote. The assembly was summoned 
 by instrument under the great seal in the Queen's name. 
 
 The legislative assembly was composed of an equal num- 
 ber of representatives from Upper and Lower Canada — 
 
288 GOVERNMENT IN CANADA. 
 
 forty-two from each province. Power was given to alter 
 the representation by a two-thirds vote in each house. The 
 qualifications of a member were limited to property in free- 
 hold land to the value of five hundred pounds over and 
 above any charges on it, and provision was made in regard 
 to elections, vacancies, etc. Every assembly continued for 
 four years, unless sooner dissolved, and a yearly session, 
 as obtains at present in the Dominion parliament, was 
 necessary. The members elected their own speaker and 
 twenty members, including the speaker, formed a quorum 
 for the exercise of the powers of the assembly. He had a 
 casting vote as the speaker of the other chamber. 
 
 The powers, authorities and functions of former governors 
 so far as they were not repugnant to the Act, were vested 
 in the governor with the executive council, or in the gov- 
 ernor alone where "the advice, consent, or concurrence of 
 the executive council is not required." All existing laws 
 were to remain in force until altered ; and all courts of jus- 
 tice, commissions, powers and authorities of officers, judi- 
 cial, administrative or ministerial were continued as if the 
 Act had not been passed. 
 
 This is the substance of the Act, as far as it need be 
 referred to. A clause requiring that all writs, proclama- 
 tions and instruments for summoning or proroguing the 
 assembly, or writs or summons in relation to elections and 
 other public documents should be in English was subsequently 
 repealed in 1848. The only substantial addition to the 
 Act was passed in 1854, by which power was given to the 
 legislature of Canada to alter the constitution of the legis- 
 lative council so as to make it elective, and to repeal or 
 vary the property qualification of members of the assembly. 
 In pursuance of this statute, the provinces were divided 
 into 48 electoral districts with one representative councillor 
 for each, twelve to retire at the end of every two years. 
 
THE UNITED OANADAS, ETC. 289 
 
 The seat of government was, up to 1844, part of the time 
 in Toronto and part in Kingston ; it was located afterwards 
 in Montreal, but in 1849 the assembly sat alternately in 
 Toronto and Quebec until the provinces were united in 1867. 
 Lord Sydenham was the first Governor-General' under the 
 Union Act and Lord Monck the last, (a) 
 
 The other provinces may be conveniently referred to in 
 this place. The Treaty of Utrecht signed in 1713 has already 
 come under the attention of the reader. By it Nova 
 Scotia was formally ceded by France to England. It was 
 called Acadia by its former owners and included New 
 Brunswick until the year 1784. Cape Breton remained a 
 possession of France after the Treaty of Utrecht, but came 
 under British rule by the Treaty of Paris in 1763. Three 
 years later it was annexed to the government of Nova 
 Scotia, but together with New Brunswick was separated 
 from it in the same year. In 1820 it again returned to its 
 former partner and remained a part ot it until confed- 
 eration. 
 
 Nova Scotia during the first half century of British rule 
 contented itself with a Lieutenant-Governor and a council, 
 but in 1758 a constitution was granted to it and a legislative 
 assembly of 22 members provided for. This form of 
 government lasted until the year 1838 when a separation 
 was effected between the legislative and the executive 
 authorities. After a lapse of ten years, a limit was 
 placed to the number composing -the assembly — 38 being 
 allowed ; and under this form of government the people of 
 Nova Scotia entered the union in 1867. 
 
 New Brunswick after her separation from Nova Scotia 
 in 1784, was governed by a Lieutenant-Governor with a 
 
 (a) Lord Monck was also the first Governor-General of the Dominion 
 of Canada. The Governors after Lord Sydenham were Sir Charles 
 Bagot, Lord Metoalf, Lord Cathcart, Lord Elgin and Sir E. W. Head. 
 O.'S.G.C. 20 
 
290 GOVEKNMBNT IN OANADA. 
 
 council of 12 members possessing legislative as well as 
 executive functions. In 1832 this anomaly was removed 
 and New Brunswick entered the union in the same way as 
 her sister province. 
 
 Prince Edward Island was known as St. John under the 
 French rule; the English took possession of it in 1758. 
 By the Treaty of Paris it fell to the English and was 
 assigned to the government of Nova Scotia, where it 
 remained until 1769. It then separated from that province 
 and so remained up to the date of its admission into the 
 union in 1873. It was provided with a constitution and 
 has had a government similar to that of the other mari- 
 time provinces. (6) 
 
 British Columbia and Vancouver's Island were formerly 
 part of the Hudson Bay Territory. The latter in 1848 was 
 assigned to the company for ten years, and about the end 
 of that time it and the mainland were taken away from 
 the Hudson Bay Company and formed into separate 
 colonies. In 1866 they were united under one adminis- 
 tration. Previously in 1863 a royal governor was sent, out 
 and a government formed, one half of the advising council 
 being composed of government officials and the other half 
 elected by the people of the colony. 
 
 Manitoba and the North-West Territories had no separate 
 political existence befor.e forming part of Canada. They 
 were portions of Prince Rupert's Land ceded to Canada by 
 the home government. 
 
 (6) The Governor of Canada was Captain General of British America, 
 but did not interfere with the administration of the other colonies. 
 These were presided over by what were called lieutenant-governors, 
 though they were governors in everything but name, being commanders- 
 in-chief within their provinces and taking precedence next after the Gov- 
 ernor of Canada. 
 
THE UNITED CANADAS, ETC. 291 
 
 The project of uniting the colonies of British North 
 America is one that dates back to the first years of the 
 century. It was not unheard of before Lord Durham's 
 time. In 1800, 1814, 1822 and 1825 there were projects 
 of a union and the idea revived in 1857. Nova Scotia took 
 the first legislative step by a resolution in 1861. A 
 conference of the maritime provinces was arranged early 
 in 1864, and towards the end of the year delegates from 
 the Canadas joined the eastern delegates at a convention 
 in Charlottetown. Newfoundland was not represented. It 
 was arranged that another convention should be called by 
 the Governor-General and this was done in the following 
 month. The Quebec convention as it is called assembled 
 in the city on the 10th of October 1864. It was composed 
 of twelve delegates from the Canadas, seven from New 
 Brunswick, five from Nova Scotia, seven from Prince 
 Edward Island and two from Newfoundland. After eighteen 
 days debate wii.h closed doors seventy- two resolutions were 
 adopted and these were submitted to the different legis- 
 latures in 1865. The Canadian legislature adopted the 
 resolutions by a vote of about three to one in each house ; 
 but the other provinces did not respond so readily and two 
 of them did not agree to them at all. New Brunswick and 
 Nova Scotia however in 1866 resolved that it was desirable 
 that a confederation should take place and so preparations 
 were made for the passing of an Imperial Act to give effect 
 to these resolutions. 
 
 Delegates from the three provinces assembled at London 
 in December 1866 and arranged for the final terms of the 
 union. The Earl of Carnarvon introduced the Bill in the 
 Lords on the 7th of February, and on the 28th of the 
 following month, it had passed both houses and received 
 Her Majesty's assent. On the 22nd of May a royal 
 proclamation was issued by which the new constitution of 
 
292 GOVERNMENT IN CANADA. 
 
 Canada was to take effect on the day named therein. 
 That was the first of July 1867, and thenceforth Canada as 
 at present governed began her latest phase of existence. 
 The object of the past part of this volume is to describe 
 that constitution and the government that prevails under it. 
 
 It is the sixth change that has taken place for the old 
 colony of Canada since 1760 : 
 
 1. Military government of General Murray 1760-1764 
 
 2. Civil government by governor and council... 1764-1774 
 
 3. Government under the Quebec Act 1774-1791 
 
 4. Government under the Constitutional Act ... 1791-1841 
 
 5. Government under the Union Act 1841-1867 
 
 6. Government under the B. N. A. Act 1867 
 
GOVERNMENT IN CANADA. 293 
 
 CHAPTEE VI. 
 
 CONCLUSION. 
 
 The constitution under which we in Canada live and are 
 governed is a new departure in the history of colonial 
 government. We have glanced over the various experi- 
 ments made by the provinces now composing the Dominion 
 of Canada in the solution of satisfactory government ; and 
 they are generally seen to be composed of a governor, a 
 legislative council and a legislative assembly for each 
 colony or province. Most of these colonial possessions were 
 heretofore outlying fragments of the empire, with no 
 cohesion and no nationality, with nothing in common 
 except the tie to the mother country. The scheme of 
 uniting the provinces had been long in contemplation. 
 It was felt that at least everything which they had in 
 common might well be decided in one central legislature ; 
 and that if one body could not direct all the affairs of the 
 different provinces, it could manage such interests as 
 were not antagonistic. 
 
 There was at hand as evidence of the success or at least . 
 the possibility of a federacy, the example of a great and 
 prosperous republic, where each state managed its own local 
 concerns, but delegated certain powers to a central govern- 
 ment, to be held and exercised by them in trust for the 
 whole union. There were, on the other hand, the traditions 
 of the government of Great Britain, which are the inheri- 
 tance of her present and past colonies. The present 
 
294 GOVERNMENT IN CANADA. 
 
 constitution is the result — the unintentional result, per- 
 haps — of a federal system somewhat analogous to that of 
 the United States, so far as the distribution of legislative 
 power is conoerned, and yet very different from it in the 
 underlying principle of its constitution. Like the states 
 of the Union, the provinces of the Dominion are united for 
 soQie purposes and separated for others. There is a 
 federacy — a union for matters of general and, one might 
 say, national interest ; there is a separation for matters of 
 local or internal interest. 
 
 The fact that the constitution of Canada provides one 
 central government for all the provinces and a local one 
 for each of them, as in the United States, and also that the 
 constitution is in principle similar to that of Great Britain, 
 makes the study of the government in each of these 
 countries necessary to the Canadian student, (a) 
 
 Canada, considered in point of territory, has a good deal 
 of similarity to the United States ; and it cannot be said 
 that in copying the constitution of that country to the 
 extent that she has done, any mistake was committed. 
 Local concerns in a large country are managed most satis- 
 factorily by local administration. 
 
 It is true that Canada, with a population somewhat 
 exceeding that of the city of London, has a system of 
 governments as elaborate as that of the United States for 
 a population of ten times that number. We have a central 
 government with powers largely in advance, comparatively 
 speaking, of that at Washington ; and we have provincial 
 governments which, even if their limits are narrowly hedged 
 in, are yet each year asserting the necessity of their exis- 
 tence by volumes of statutory enactments. If this leg- 
 
 (a) The full text of the United States Constitution is given in the 
 Appendix. 
 
CONCLUSION. 295 
 
 islation be all necessary, and it must be assumed tbat it 
 is, the central government might sit at Ottawa all the 
 year through and not do one-half of it at all — and probably 
 not do a tenth of it sflfficiently. A house of over 200 
 members is cumbrous machinery for legislating on any 
 subjects, but totally inadequate for the local concerns of 
 remote provinces. The provinces are too scattered and 
 their interests too diverse to admit of the possibility of 
 legislating for all the ordinary means of two houses of 
 parliament. The members may understand the legislation 
 proposed or needed for their own province ; but they could 
 not be expected to fully understand and be interested in 
 the legislation needed a thousand miles off. 
 
 A little consideration will show that the people of the 
 Dominion cannot be legislated for in the same way as five 
 or six millions of people may be in a thickly settled or con- 
 fined district. There is a strip of the broadest part of the 
 continent extending from ocean to ocean. There are 
 different modes of life among its inhabitants — in Nova 
 Scotia, in Manitoba, in British Columbia — each requiring 
 special local legislation ; different customs, races and 
 religions even in the twin provinces of Ontario and Quebec, 
 different features everywhere. 
 
 The complex system of government that obtains amongst 
 us must therefore be regarded as a necessity : we have the 
 territory if we have not the population to justify its exist- 
 ence. It is some consolation, however, that when our 
 provinces and territories number a great many millions 
 more than they do at present, the constitution supplies 
 ample machinery for their government. 
 
 THE END. 
 
296 APPENDIX. 
 
 APPENDIX 
 
 CONSTITUTION OP THE UNITED STATES. 
 
 The Constitution framed for the United States of America, by a Convention of 
 Deputies from the States of New Hampshire, Massachusetts, Connecticut, 
 Nev) York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North 
 Carolina, South Carolina, and Georgia, at a session begun May 25th and 
 ended September 17, 1887. 
 
 We, the people of the United States, in order to form a more perfect 
 Union, establish justice, insure domestic tranquillity, provide for the 
 common defence, promote the general welfare, and secure the blessings 
 of liberty to ourselves and our posterity, do ordain and establish this 
 Constitution for the United States of America. 
 
 ARTICLE I. 
 
 SECTION I. 
 
 All Legislative powers herein granted shall be vested in a Congress of 
 the United States, which shall consist of a Senate and House of Kepre- 
 sentatives. 
 
 SECTION II. 
 
 1. The House of Representatives shall be composed of members chosen 
 every second year, by the people of the several States ; and the electors 
 in each State shall have the qualifications requisite for electors of the 
 most numerous branch of the State Legislature. 
 
 2. No person shall be a Representative who shall not have attained to 
 the age of twenty-five years, and been seven years a citizen of the United 
 States, and who shall not, when elected, be an inhabitant of that State 
 in which he shall be chosen. 
 
 3. Representatives and direct taxes shall be apportioned among the 
 several States which may be included within this Union, according to 
 their respective numbers, which shall be determined by adding to the 
 whole number of free persons, including those bound to service for a term 
 of years, and excluding Indians not taxed, three fifths of all other persons. 
 The actual enumeration shall be made within three years after the first 
 meeting of the Congress of the United States ; and, within every subse- 
 quent term of ten years, in such manner as they shall by law direct. The 
 
APPENDIX. 297 
 
 number of Eepresentatives shall not exceed one for every thirty thousand ; 
 but each State shall have at least one Representative ; and, until such 
 enumeration shall be made, the State of New Hampshire shall be entitled 
 to choose three ; Massachusetts, eight ; Ehode Island and Providence 
 Plantations, one ; Connecticut, five ; New York, six ; New Jersey, four ; 
 Pennsylvania, eight ; Delaware, one ; Maryland, six ; Virginia, ten ; 
 North Caiolina, live ; South Carolina, five ; and Georgia, three. 
 
 4. When vacancies happen in the representation from any State, the 
 executive authority thereof shall issue writs of election to fill such 
 vacancies. 
 
 5. The House of Eepresentatives shall choose their speaker and other 
 officers, and shall have the sole power of impeachment. 
 
 SECTION III. 
 
 1. The Senate of -the United States shall be composed of two Senators 
 from each State, chosen by the Legislature thereof, for six years ; and 
 each Senator shall have one vote. 
 
 2. Immediately after they shall be assembled, in consequence of the 
 first election, they shall be divided, as equally as may be, into three 
 classes. The seats of the Senators of the first class shall be vacated at 
 the expiration of the second year ; of the second class, at the expiration 
 of the fourth year ; and of the third class, at the expiration of the sixth 
 year ; so that one third may be chosen every second year. And if 
 vacancies happen, by resignation or otherwise, during the recess of the 
 Legislature of any State, the Executive thereof may make temporarily 
 appointment until the next meeting of the Legislature, which shall then 
 fill such vacancies. 
 
 3. No person shall be a Senator who shall not have attained to the 
 age of thirty years, and been nine years a citizen of the United States, 
 and who shall not, when elected be an inhabitant of that State for which 
 he shall be chosen. . 
 
 4. The Vice-President of the United States shall be President of the 
 Senate, but shall have no vote unless they be equally divided. 
 
 5. The Senate shall choose their other officers, and also a President 
 pro-tempore in the absence of the Vice-President, or when he shall exercise 
 the of&ce of President of the United States. 
 
 6. The Senate shall have the sole power to try all impeachments. 
 When sitting for that purpose, they shall be on oath or affirmation. 
 When the President of the United States is tried, the Chief Justice shall 
 preside ; and no person shall be convicted without the concurrence of 
 two thirds of the members present. 
 
 7. Judgment, in cases of impeachment, shall not extend further than 
 to removal from office, and disqualification to hold and enjoy any office of 
 honor, trusty or profit under the United States. But the party convicted 
 shall, nevertheless, be liable and subject to indictment, trial, judgment 
 and punishment, according to law. 
 
 SECTION IV. 
 
 1. The times, places, and manner of holding elections for Senators and 
 Eepresentatives shall be prescribed in each State by the Legislature 
 
298 APPENDIX. 
 
 thereof ; but tlie Congress may, at any time, by law, make or alter such 
 regulations, except as to the places of choosing Senators. 
 
 2. The Congress shall assemble at least once in every year ; and such 
 meetings shall be held on the first Monday in December, unless they shall, 
 by law, appoint a different day. 
 
 SECTION V. 
 
 1. Each House shall be the judge of the elections, returns, and qualifi- 
 cations of its own members ; and a majority of each shall be considered a 
 quorum to do business ; but a smaller number may adjourn from day to 
 day, and may be authorized to compel the attendance of absent members, 
 in such manner and under such penalties as each House may provide. 
 
 2. Each House may determine the rules of its proceedings ; punish its 
 members for disorderly behaviour ; and with the concurrence of two 
 thirds, expel a member. 
 
 3. Each House shall keep a journal of its proceedings and from time 
 to time publish the same, except such parts as may in their judg- 
 ment require secrecy ; and the yeas and nays of the members of -either 
 House on any question shall, at the desire of one fifth of those present, be 
 entered on the journal. 
 
 4. Neither House, during the session of Congress, shall, without the 
 consent of the other, adjourn for more than three days, nor to any other 
 place than that in which the two Houses shall be sitting. 
 
 SECTION VI. 
 
 1. The Senators and Representatives shall receive a compensation for 
 their services, to be ascertained by law, and paid out of the treasury of 
 the United States. They shall, in all cases except treason, felony, and 
 breach of the peace, be privileged from arrest during their attendance at 
 the session of their respective Houses, and in going to and returning 
 from the same : for any speech or debate in either House, they shall not 
 be questioned in any other place. 
 
 2. No Senator or Eepresentative shall, during the time for which he 
 was elected, be appointed to any civil office, under the authority of the 
 United States, which shall have been created, or the emoluments whereof 
 shall have been increased, during such time ; and no person holding any 
 office under the United States shall be a member of either house during 
 his continuance in office. 
 
 SECTION VII. 
 
 1. All bills for raising revenue shall originate in the House of Repre- 
 sentatives ; but the Senate may propose or ooncur with amendments, as 
 on other bills. 
 
 2. Every bill which shall have passed the House of Representatives 
 and the Senate shall, before it becomes law, be presented to the Presi- 
 dent of the United States. If he approve it, he shall sign it ; but if not, 
 he shall return it, with his objections, to that house in which it shall 
 have originated, who shall enter the objections at large on their journal, 
 and proceed to reconsider it. If after such reconsideration, two thirds of 
 that house shall agree to pass the bill, it sha.l be sent, together with the 
 objections, to the other House, by which it shall likewise be reconsidered : 
 and, if approved by two thirds of that House, it shall become a law. 
 
APPENDIX. 299 
 
 But in all such oases the votes of both Houses shall be determined by yeas 
 and nays ; and the names of the persons voting for and against the bill, 
 shall be entered on the journal of each House respectively. If any bill 
 shall not be returned by the President within ten days (Sundays excepted) 
 after it shall have been presented to him, the same shall be a law in like 
 manner as if he had signed it, unless the Congress by their adjournment, 
 prevent its return ; in which case it shall not be a law. 
 
 3. Every order, resolution, or vote to which the concurrence of the 
 Senate and House of Representatives may be necessary, (except on a 
 question of adjournment,) shall be presented to the President of the 
 United States, and, before the same shall take effect, shall be approved 
 by him, or being disapproved by him, shall be re-passed by two thirds of 
 the Senate and House of Eepresentatives, according to the rules and limi- 
 tations prescribed in the case of a bill. 
 
 SECTION VIII. 
 
 The Congress shall have power, 
 
 1. To lay and collect taxes, duties, imposts, and excises to pay the debts 
 and provide for the common defence and general welfare of the United 
 States ; but all duties, imposts, and excises shall be uniform throughout 
 the United States : 
 
 2. To borrow money on the credit of the United States : 
 
 3. To regulate commerce with foreign nations, and among the several 
 States, and with the Indian tribes ; 
 
 4. To establish a uniform rule of naturalization, and uniform laws on 
 the subject of bankruptcies throughout the United States : 
 
 5. To coin money, regulate the value thereof, and of foreign coin, and 
 fix the standard of weights and measures : 
 
 6. To provide for the punishment of counterfeiting the securities and 
 current coin of the United States : 
 
 7. To establish post-offices and post-roads : 
 
 8. To promote the progress of science and useful arts, by securing, for 
 limited times, to authors and inventors, the exclusive right to their 
 respective writings and discoveries : 
 
 9. To constitute tribunals inferior to the Supreme Court : 
 
 10. To define and punish piracies and felonies committed on the high 
 seas, and offences against the law of nations : 
 
 11. To declare war, grant letters of marque and reprisal, and make 
 rules concerning captures on land and water : 
 
 12. To raise and support armies ; but no appropriation of money for 
 that use shall be for a longer term than two years : 
 
 13. To provide and maintain a navy : 
 
 14. To make rules for the government and regulation of the land and 
 naval forces : 
 
 15. To provide for calling forth the militia to execute the laws of the 
 Union, suppress insurrections, and repel invasions : 
 
300 APPENDIX. 
 
 16. To provide for organizing, arming, and disciplining the militia, 
 and for governing Buch part of them as may be employed in the service 
 of the United States, reserving to the States respectively the appoint- 
 ment of the officers, and the authority of training the militia according 
 to the discipline prescribed by Congress. 
 
 17. To exercise exclusive legislation, in all cases whatsoever, over such 
 District (not exceeding ten miles square) as may, by cession of particular 
 States, and the acceptance of Congress, become the seat of the govern- 
 ment of the United States ; and to exercise like authority over all places 
 purchased by the consent of the Legislature of the State in which the same 
 shall be, for the erection of forts, magazines, arsenals, dockyards, and 
 other needful buildings ; and, 
 
 18. To make all laws which shall be necessary and proper for carrying 
 into execution the foregoing powers, and all other powers vested by this 
 Constitution in the Government of the United States, or in any depart- 
 ment or officer thereof. 
 
 SECTION IX. 
 
 1. The migration or importation of such persons as any of the States 
 now existing shall think proper to admit, shall not be prohibited by the 
 Congress prior to the year one thousand eight hundred and eight ; but a 
 tax or duty may be imposed on such importation, not exceeding ten 
 dollars for each person. 
 
 2. The privilege of the writ of haheas corpus shall not be suspended, 
 unless when, in cases of rebellion or invasion; the public safety may 
 require it. 
 
 3. No bill of attainder or ex post facto law shall be passed. 
 
 4. No capitation or other direct tax shall be laid, unless in proportion 
 to the census or enumeration hereinbefore directed to be taken. 
 
 5. No tax or duty shall be laid on articles exported from any State. 
 
 6. No preference shall be given by any regulation of commerce or 
 revenue to the ports of one State over those of another ; nor shall vessels 
 bound to, or from one State, be obliged to enter, clear, or pay duties in 
 another. 
 
 7. No money shall be drawn from the treasury but in consequence of 
 appropriations made by law ; and a, regular statement and account of 
 the receipts and expenditures of all public money shall be published from 
 time to time. 
 
 8. No title of nobility shall be granted by the United States ; and no 
 person holding any office of profit or trust under them shall, without the 
 oonssnt of the Congress, accept of any present emolument, office, or title 
 of any kind whatever, from any king, prince, or foreign State. 
 
 SECTION X. 
 
 1. No State shall enter in,to any treaty, alliance, or confederation ; 
 grant letters of marque and reprisal; coin money; emit bills of credit; 
 make any thing but gold and silver coin a tender in payment of debts; 
 pass any bill of attainder, ex post facto law, or law impairing the obliga- 
 tion of contracts ; or grant any title of nobility. 
 
 2. No State shall, without the consent of the Congress, lay any imposts 
 or duties on imports or exports, except what may be absolutely necessary 
 
APPENDIX. 301 
 
 for executing its inspection laws ; and the net produce of all duties and 
 imposts, laid by any State on imports or exports, shall be for the use of 
 the treasury of the United States; and all such laws shall be subject to 
 the revision and control of the Congress. 
 
 3. No State shall, without the consent of Congress, lay any duty of 
 tonnage, keep troops or ships of war in time of peace, enter into any 
 agreement or compact with another State, or with a foreign power, or 
 engage in war, unless actually invaded or in such imminent danger as 
 will not admit of delay. 
 
 AETICLE II. 
 
 SECTION I. 
 
 1. The Executive power shall be vested in a President of the United 
 States of America. He shall hold his office during the term of four 
 years, and together with the Vice-President, chosen for the same term, 
 be elected as follows : 
 
 2. Each State shall appoint, in such manner as the Legislature thereof 
 may direct, a number of Electors, equal to the whole number of senators 
 and representatives to which the State may be entitled in the Congress ; 
 but no senator or representative, or person holding any office of trust or 
 profit under the United States, shall be aijpointed an elector. 
 
 3. The Electors shall meet in their respective States, and vote by 
 ballot for two persons, of whom one at least shall not be an inhabitajt 
 of the same State with themselves. And they shall make a list of all 
 the persons voted for, and of the number of votes for each ; which list 
 they shall sign and certify, and transmit sealed to the seat of the Govern- 
 ment of the United States, directed to the President of the Senate. 
 The President of the Senate shall, in the presence of the Senate and 
 House of Representatives, open all the certificates, and the votes shall 
 then be counted. The person having the greatest number of votes shall 
 be the President, if such number be a majority of the whole number of 
 Electors appointed ; and if there be more than one who have such 
 majority, and have an equal number or votes, then the House of Repre- 
 sentatives shall immediately chose by ballot one of them for President ; 
 and if no person have a majority, then from the five highest on the list 
 the said House shall in like manner choose the President. But in choos- 
 ing the President the votes shall be taken by States, the representation 
 from each state having one vote ; a quorum for this purpose shall con- 
 sist of a member or members from two-thirds of the States, and a 
 majority of all the States shall be necessary to a choice. In every case, 
 after the choice of the President, the person having the greatest number 
 of votes of the Electors shall be the Vice-President. But if there should 
 remain two or more who have equal votes, the Senate shall choose from 
 them by ballot, the Vice-President. 
 
 4. The Congress may determine the time of choosing the Electors, 
 and the day on which they shall give their votes ; which day shall be the 
 same throughout the United States. 
 
 5. No person, except a natural-born citizen, or a citizen of the United 
 States at the time of the adoption of this Constitution, shall be eligible to 
 the office of President ; neither shall any person be eligible to that office 
 who shall not have attained to the age of thirty-five years, and been four- 
 teen years a resident within the United States. 
 
302 APPENDIX. 
 
 6. In case of the removal of the President from oiHoe, or of his death, 
 resignation, or inability to discharge the powers and duties of the said 
 of&ce, the same shall develop on the Vice-President ; and the Congress 
 may by law provide for the case of removal, death, resignation, or 
 inability, both of tha President and Vice- President, declaring what officer 
 shall then act as President, and such officer shall act accordingly, until 
 the disability be removed, or a President shall be elected. 
 
 8. The President shall, at stated times, receive for his services a com- 
 pensation, which shall neither be increased nor diminished during the 
 period for which he shall have been elected, and he shall not receive 
 within that period any other emolument from the United States, or any 
 of them. 
 
 8. Before he enter on the execution of his office, he shall take the fol- 
 lowing oath or affirmation : — 
 
 " I do solemnly swear (or affirm) that I will faithfully execute the office 
 of President of the United States ; and will, to the best of my ability, 
 preserve, protect, and defend the Constitution of the United States." 
 
 SECTION n, 
 
 1. The President shall be commander-in-chief of the army and navy 
 of the United States, and of the militia of the several States when called 
 into the actual service of the United States ; he may require the opinion, 
 in writing, of the principal officer in each of the Executive de])artments, 
 upon any subject relating to the duties of their respective offices, and he 
 shall have power to grant reprieves and pardons for offences against the 
 United States, except in cases of impeachment. 
 
 2. He shall have power, by and with the advice and consent of the 
 Senate, to make treaties, provided two thirds of the Senators present con- 
 cur ; and he shall nominate, and by and with the advice and consent of 
 the Senate, shall appoint ambassadors, other public ministers, and consuls, 
 judges of the Supreme Court, and all other officers of the United States 
 whose appointments are not herein otherwise provided for, and which shall 
 be established by law ; but the Congress may by law vest the appointment 
 of such inferior officers as they think proper in the President alone, in 
 the courts of law, or in the heads of departments. 
 
 3. The President shall have power to fill up all vacancies that may 
 happen during the recess of the Senate, by granting commissions which 
 shall expire at the end of their next session. 
 
 SECTION III. 
 
 He shall, from time to time, give to the Congress information of the 
 State of the Union, and recommend to their consideration such measures 
 as he shall judge necessary and expedient ; he may, on extraordinary occa- 
 sions, convene both Houses, or either of them, and in case of disagreement 
 between them with respect to the time of adjournment, he may adjourn 
 them to such time as he shall think proper ; he shall receive ambassadors 
 and other public ministers ; he shall take care tnat the laws be faithfully 
 executed, and shall commission all the officers of the United States. 
 
 SECTION IV. 
 
 The President, Vice-President, and all civil officers of the United 
 States, shall be removed from office on impeachment for, and conviction 
 of treason, bribery, or other high crimes and misdemeanors. 
 
APPENDIX. 303 
 
 ARTICLE III. 
 SECTION I. 
 
 Ths Judicial power of United States shall be vested in one Supreme 
 Court, and in such inferior courts as the Congress may, from time to 
 time, ordain and establish. The judges, both of the supreme and inferior 
 courts, shall hold their offices during good behaviour, and shall, at stated 
 times, receive for their services, a compensation which shall not be 
 diminished during their continuance in of&ce. 
 
 SECTION II. 
 
 1. The judicial power shall extend to all cases in law and equity aris- 
 ing under this Constitution, the laws of the United States, and treaties 
 made, or which shall be made, under their authority ; to all cases affect- 
 ing ambassadors ; other public ministers, and consuls ; to all cases of 
 admiralty and maritime jurisdiction ; to controversies to which the 
 United States shall be a party ; to controversies between two or more 
 States ; between a State and citizens of another State ; between citizens 
 of different Slates ; between citizens of the same State claiming lands 
 under grants of different States ; and between a State, or the citizens 
 thereof and foreign States, citizens, or subjects. 
 
 2. In all cases affecting ambassadors, other public ministers, and 
 consuls, and those in which a State shall be a party, the Supreme Court 
 shall have original jurisdiction. In all the other cases before mentioned, 
 the Supreme Court shall have appellate jurisdiction, both as to law and 
 fact, with such exceptions, and under such regulations, as the Congress 
 shall make. 
 
 3. The trial of all crimes, except in cases of impeachment, shall be by 
 jury, and such trial shall be held in the State where the said crimes 
 shall have been committed ; but when not committed within any State, 
 the trial shall be at such place or places as the Congress may by law 
 have directed. 
 
 SECTION III. 
 
 1. Treason against the United States shall consist only in levying war 
 against them, or in adhering to their enemies, giving them aid and com- 
 fort. No person shall be convicted of treason unless on the testimony of 
 two witnesses to the same overt act, or on confession in open court. 
 
 2. The Congress shall have power to declare the punishment of treason ; 
 but no attainder of treason shall work corruption of blood or forfeiture, 
 except daring the life of the person attainted. 
 
 ARTICLE IV. 
 
 SECTION I. 
 
 Full faith and credit shall be given, in each State, to the public acts, 
 records, and judicial proceedings of every other State. And the Congress 
 may, by general laws, prescribe the manner in which such acts, records, 
 and proceedings shall be proved, and the effect therof . 
 
 SECTION II. 
 
 1. The citizens of each State shall be entitled to all privileges and 
 immunities of citizens in the several States. 
 
304 APPENDIX. 
 
 2. A person charged in any state with treason, felony, or other crime, 
 who shall flee from justice and be found in another State, shall, on 
 demand of the Executive authority of the State from which he fled, be 
 delivered up, to be removed to the State having jurisdiction of the crime. 
 
 3. No person, held to service or labor in one State under the laws thereof, 
 escaping into another, shall, in consequence of any law or regulation 
 therein, be discharged from such service or labor ; but shall be delivered 
 up on claim of the party to whom such service or labor may be due. 
 
 SECTION III. 
 
 1. New States may be admitted by the Congress into this Union ; but 
 no new States shall be formed or erected within the jurisdiction of any 
 other State ; nor any State be formed by the junction of two or more 
 States, or parts of States, without the consent of the Legislature of the 
 States concerned, as well as of the Congress. 
 
 2. The Congress shall have power to dispose of and make all needful 
 rules and regulations respecting the territory or other property belonging 
 to the United States ; and nothing in this Constitution shall be so con- 
 strued as to prejudice any claims of the United States, or of any particu- 
 lar State. 
 
 SECTION IV. 
 
 The United States shall guarantee to every State in this Union a 
 republican form of government, and shall protect each of them against 
 invasion ; and on application of the Legislature, or of the Executive, 
 (when the Legislature cannot be convened,) against domestic violence. 
 
 ARTICLE V. 
 
 The Congress, whenever two thirds of both Houses shall deem it 
 necessary, shall propose amendments to this Constitution, or, on the 
 application of the legislatures of two thirds of the several States, shall 
 call a convention for proposing amendments ; which, in either case, shall 
 be valid to all intents and purposes, as part of this Constitution, when 
 ratified by the legislatures of three fourths of the several States, or by 
 conventions in three fourths thereof, as the one or the other mode of ratifi- 
 cation may be proposed by the Congress : Provided that no amendment 
 which may be made prior to the year one thousand eight hundred and 
 eight, shall in any manner affect the first and fourth clauses in the 
 ninth section of the first article ; and that no State, without its consent, 
 shall be deprived of its equal suffrage in the Senate. 
 
 ARTICLE VI. 
 
 1. All debts contracted, and engagements entered into before the adop- 
 tion of this Constitution, shall be as valid against the United States 
 under this constitution as under the Confederation. 
 
 2. This Constitution, and the laws of the United States which shallbe 
 made in pursuance thereof, and all treaties made, or which shall be 
 made, under the authority of the United States, shall be the supreme law 
 of the land, and the judges in every State shall be bound thereby, any- 
 thing in the Constitution or laws of any State to the contrary notwith- 
 standing. 
 
APPENDIX. 305 
 
 3. The Senators, and Representatives before mentioned, and the mem- 
 bers of the several State Legislatures, and all Executive and Judicial 
 ofi&cers, both of the United States and of the several States, shall be 
 bound, by oath or affirmation, to support this Constitution ; but no 
 religious test shall ever be required as a qualification to any office or pub- 
 lic trust under the United States. 
 
 ABTICLE VII. 
 
 The ratification of the convention of nine States shall be sufficient for 
 the establishment of this Constitution between the States so ratifying the 
 same. 
 
 Done in Convention by the unanimous consent of the States present, the 
 seventeenth day of September, in the year of our Lord one thousand 
 seven hundred and eighty-seven, and of the independence of the United 
 States of America the twelfth. In witness whereof, we have hereunto 
 subscribed our names. 
 
 GEOEGE WASHINGTON, President. 
 
 and Deputy from Virginia, (a) 
 
 (a) The names of the other deputies follow. 
 
 AMENDMENTS. 
 
 'The following articles in addition to, and amendment of, the Constitution of 
 the United States, having been ratified by the Legislatures of nine States, 
 are equally obligatory with the Constitution itself. 
 
 I. Congress shall make no law respecting an establishment of religion, 
 or prohibiting the free exercise thereof, or abridging the freedom of speech 
 or of the press ; or the right of the people peaceably to assemble, and ta 
 petition the Government for a redress of grievances. 
 
 II. A well-regulated militia being necessary to the security of a free 
 State, the right of the people to keep and bear arms shall not be infringed. 
 
 III. No soldier shall, in time of peace, be quartered in any house with- 
 out the consent of the owner ; nor in time of war, but in a manner' to be 
 prescribed by law 
 
 The right of the people to be secure in their persons, houses, papers, 
 and effects, against unreasonable searches and seizures, shall not be 
 violated ; and no warrants shall issue, but upon probable cause, supported 
 by oath or affirmation, and particularly describing the place to be searched, 
 and the persons or things to be seized. 
 
 o.'h.g.c. 21 
 
306 APPENDIX. 
 
 V. No person shall be held to answer for a capital or otherwise infam- 
 ous crime, unless on a presentment or indictment of a grand-jury, except 
 in cases arising in the land or naval forces, or in the militia, when in 
 actual service, in time of war, or public danger ; nor shall any person be 
 subject, for the same offence to be tv ice put in jeopardy of life or limb ; 
 nor shall be compelled, in any criminal case, to be witness against him- 
 self ; nor be deprived of life, liberty, or property, without due process of 
 law ; nor shall private property be taken for public use, without just com- 
 pensation. 
 
 VI. In all criminal prosecutions, the accused shall enjoy the right to a 
 speedy and public trial, by an impartial jury, of the State and district 
 wherein the crime shall have been committed ; which district shall have 
 been previously ascertained by law ; and to be informed of the nature and 
 cause of the accusation ; to be confronted with the witnesses against 
 him ; to have compulsory process for obtaining witnesses in his favor ; 
 and to have the assistance of counsel for his defence. 
 
 VII. In suits at common law where the value in controversy shall exceed 
 twenty dollars, the right of trial by jury shall be preserved ; and no fact 
 tried by a jury shall be otherwise Te-examined in any court of the United 
 States than according to the rules of the common law. 
 
 VIII. Excessive bail shall not be required, nor excessive fines be im- 
 posed, nor cruel and unusual punishments inflicted. 
 
 IX. The enumeration in the Constitution of certain rights shall not be, 
 construed to deny or disparage others retained by the people. 
 
 X. The powers not delegated to the United States by the Constitution, 
 nor prohibited by it to the States, are reserved to the States respectively 
 or to the people. 
 
 XI. The Judicial power of the United States shall not be construed to 
 extend to any suit in law or equity commenced or prosecuted against one 
 of the United States by citizens of another State, or by citizens or sub- 
 jects of any foreign State. 
 
 XII. § 1. The electors shall meet in their respective States, and vote 
 "by ballot for President and Vice-President, one of whom at least, shall 
 not be an inhabitant of the same State with themselves ; they shall 
 name in their ballots the person voted for as President, and in distinct 
 ballots the person voted for as Vice-President ; and they shall make 
 distinct lists of all persons voted for as President, and of all persons 
 voted for as Vice-President, and of the number of votes for each, which 
 list they shall sign and certify, and transmit sealed to the Government of 
 the United States, directed to the President of the Senate- the President 
 of the Senate shall, in the presence of the Senate and House of Eepre- 
 sentatives, open all the certificates, and the votes shall then be counted ; 
 the person having the greatest number of votes for President shall be the 
 President, if such number be a majority of the whole number of the 
 Electors appointed ; and if no person have such majority, then from the 
 persons having the highest numbers not exceeding three on the list of 
 
APPENDIX. 307 
 
 those voted for as President, the House ot Representatives shall choose 
 immediately, by ballot, the President. But, in choosing the President, 
 the votes shall be taken by States, the representation from each State 
 having one vote ; a quorum for this purpose shall consist of a member or 
 members from two thirds of the States, and a majority of all the States 
 shall be necessary to a choice. And if the House of Representatives 
 shall not choose a President whenever the right of choice shall devolve 
 upon them, before the fourth day of March next following, then the 
 Vice-President shall act as President, as in the case of the death or other 
 constitutional disability of the President. § 2. The person having the 
 greatest number of votes as Vice-President shall be Vice-President, if such 
 number be a majority of the whole number of Electors appointed ; and 
 if no person have a majority, then from the two highest numbers on the 
 list the Senate shall choose the Vice-President ; a quorum for the pur- 
 pose shall consist of two thirds of the whole number of Senators, and a 
 majority of the whole number shall be necessary to a choice. § 3. But 
 no person constitutionally ineligible to the office of President shall be 
 eligible to that of Vice-President of the United States. 
 
 XIII — 1. Neither slavery nor involuntary servitude, except as a punish- 
 ment for crime, whereof the party shall have been duly convicted, shall 
 exist within the United States, or any place subject to their jurisdiction. 
 
 XIV — 1. All persons bom or naturalized in the United States, and sub- 
 ject to the jurisdiction thereof, are citizfins of the United States and of the 
 States wherein they reside. No State shall make or enforce any law 
 which shall abridge the privileges or immunities of citizens of the United 
 States; nor shall any State deprive any person of life, liberty, or pro- 
 perty, without due process of law ; nor deny to any person within its 
 jurisdiction the equal protection of the laws. 
 
 "2. Representatives shall be apportioned among the several States 
 according to their respective numbers, counting the whole number of 
 persons in each State, excluding Indians not taxed ; but, whenever the 
 right to vote at any election for the choice of electors for President and 
 Vice-President of the United States, Representatives in Congress, the 
 executive and judicial officers of a State, or members of the Legislature 
 thereof, is denied to any of the male inhabitants of such State, being 
 twenty-one years of age and citizens of the United States, or in any way 
 abridged, except for participation in rebellion or other crime, the basis 
 of representation therein shall be reduced in the proportion which the 
 number of such male citizens shall bear to the whole number of male 
 citizens twenty-one years of age in such State.' 
 
 3. No person shall be a Senator or Representative in Congress, or 
 elector of President and Vice-President, or hold any office, civil or mili- 
 tary, under the United States, or under any State, who, having previ- 
 ously taken an oath as a member of Congress, or as an officer of the 
 United States, or as a member of any State legislature, or as an executive 
 or judicial officer of any State, to support the Constitution of the United 
 States, shall have engaged in insurrection or rebellion against the same, 
 or given aid or comfort to the enemies thereof ; but Congress may, by a 
 vote of two-thirds of each House, remove such disability. 
 
308 APPENDIX. 
 
 4. The validity of the public debt of the United States authorized by- 
 law, including debts incurred for the payment of pensions and bounties 
 for services in suppressing insurrection or rebellion, shall not be ques- 
 tioned. But neither the United States, nor any State, shall assume or 
 pay any debt or obligation incurred in aid of insurrection or rebellion 
 against the United States, or any claim for the loss or emancipation of 
 any slave ; but all such debts, obligations and claims shall be held illegal 
 and void. 
 
 5. The Congress shall have power to enforce, by appropriate legislation, 
 the provisions of this article. 
 
 XV — 1. The right of citizens of the United States to vote shall not be 
 denied or abridged by the United States, or by any State, on account of 
 race, colour, or previous condition of servitude. 
 
 2. The Congress shall have power to enforce this article by appropriate 
 legislation. 
 
APPENDIX. 309 
 
 THE CONSTITUTION OF CANADA. 
 
 IMP. ACT 30-31 VICT. u. 3. 
 
 An Act for the Union of Canada, Nova Scotia, and New Brunswick, and 
 the Government thereof ; and for purposes connected therewith. 
 
 [29Wi March, 1867.] 
 
 Whereas the Provinces of Canada, Nova Scotia, and New Brunswick, 
 have expressed their desire to be federally united into one Dominion 
 under the Crown of the United Kingdom of Great Britain and Ireland, 
 with a Constitution similar in principle to that of the United Kingdom : 
 
 And whereas such a Union would conduce to the welfare of the 
 Provinces and promote the interests of the British Empire : 
 
 And whereas on the establishment of the Union by authority of Parlia- 
 ment it is expedient, not only that the Constitution of the Legislative 
 Authority in the Dominion be provided for, but also that the nature of 
 the Executive Government therein be declared : 
 
 And whereas it is expedient that provision be made for the eventual 
 admission into the Union of other parts of British North America : 
 
 Be it therefore enacted and declared by the Queen's Most Excellent 
 Majesty, by and with the advice and consent of the Lords Spiritual and 
 Temporal, and Commons, in this present Parliament assembled, and by 
 ihe authority of the same, as follows : (a) 
 
 (a) The Quebec Eesolutions were adopted by the Canadas, New 
 Brunswick, Nova Scotia, Prince Edward Island, and Newfoundland in 
 October, 1864. 
 
 Compare the preamble with the following : 
 
 The best interests and present and future prosperity of British North 
 America will be promoted by a Federal Union under the Crown of Great 
 Britain, provided such union can be affected on principles just to the 
 several Provinces. 
 
 In the Federation of the British North American Provinces, the 
 system of Government best adapted under existing circumstances to 
 protect the diversified interests of the several provinces, and secure 
 
310 APPENDIX. 
 
 I. — Pbeliminakt. 
 
 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 Majesty, Kings and Queens 
 of the United Kingdom of Great Britain and Ireland. 
 
 II. — Union. 
 
 3. It shall be lawful for the Queen, by and with the advice of Her 
 Majesty's Most Honourable Privy Council, to declare by proclamation 
 that on and after a 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 Dominion under the 
 name of Canada ; and on and after that day those three provinces shall 
 form and be one Dominion under that name accordingly. 
 
 4. The subsequent provisions of this Act shall, unless it is otherwise 
 expressed or implied, commence and have effect on and after the Union, 
 that is to say, on and after the Union taking effect in the Queen's pro- 
 clamation ; and in the same provisions, unless it is otherwise expressed 
 or implied, the name Canada shall be taken to mean Canada as consti- 
 tuted under this Act. 
 
 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 the passing of 
 this Act) which formerly constituted respectively the provinces of Upper 
 Canada and Lower Canada shall be deemed to be severed, and shall form 
 two separate provinces. The part which formerly constituted the 
 province of Upper Canada shall constitute the province of Ontario ; and 
 the part which formerly constituted the province of Lower Canada shall 
 constitute the province of Quebec. 
 
 efficiency, harmony and permanency in the working of the Union, would 
 be a General Government charged with roatters of common interest to 
 the whole country, and Local Governments for each of the Canadas, and 
 for the provinces of Nova Scotia, New Brunswick and Prince Edward 
 Island, charged with the control of local matters in their respective 
 sections,— provision being made for the admission into the Union, on 
 equitable terms, of Newfoundland, the North-West Territory, British 
 Columbia and Vancouver. 
 
 In framing a Constitution for the general government, the conference, 
 with a view to the perpetuation of our connection with the Mother 
 Country, and the promotion of the best interests of the people of these 
 provinces, desire to follow the model of the British Constitution, so far 
 as our circumstances will permit. 
 
 The sanction of the Imperial and Local Parliaments shall be sought 
 for the Union of the provinces, on the principles adopted by the 
 Conference. (Resolutions 1, 2, 3, and 90.) 
 
APPENDIX. 311 
 
 7. The provinceg of Nova Scotia and New Brunswick shall have the 
 same limits as at the passing of this Act. 
 
 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 tenth year thereafter, the respective populations of the 
 four provinces shall be distinguished; 
 
 III. — ExECnTIVE PowEii. (J) 
 
 9. The executive government and authority of and over Canada is 
 hereby declared to continue and be vested in the Queen. 
 
 10. The provisions of this Act referring to the Governor-General 
 extend and apply to the Governor- General for the time being of Canada, 
 or other the chief executive officer or administrator for the time being 
 carrying on the government of Canada on behalf and in the name of the 
 Queen, by whatever title he is designated. 
 
 11. There shall be a council to aid and advise in the government of 
 Canada, to be styled the Queen's Privy Council for Canada ; and the 
 persons who are to be members of that council shall be from time to 
 time chosen and summoned by the Governor-General and sworn in as 
 privy oounoillors, and members thereof may be from time to time 
 removed by the Governor-General. 
 
 12. (See this section, ante, page 31). 
 
 13. The provisions of this Act referring to the Governor-General in 
 council shall be construed as referring to the Governor-General acting 
 by and with the advice of the Queen's Privy Council for Canada. 
 
 14- It shall be lawful for the Queen, if Her Majesty thinks fit, to 
 authorize the Governor-General from time to time to appoint any person 
 or any persons jointly or severally to be his deputy or deputies within 
 any part or parts of Canada, and in that capacity to exercise during the 
 pleasure of the Governor-General such of the powers, authorities, and 
 functions of the Governor-General as the Governor-General deems it 
 necessary or expedient to assign to him or them, subject to any limita- 
 tions or directions expressed or given by the Queen ; but the appoint- 
 ment of such a deputy or deputies shall not affect the exercise by the 
 Governor-General himself of any power, authority or function. 
 
 15. The commander-in-chief of the land and naval militia, and of all 
 naval and military forces, of and in Canada, is hereby declared to con- 
 tinue and be vested in the Queen. 
 
 (6) The Executive Authority or Government shall be vested in the 
 Sovereign of the United Kingdom of Great Britain and Ireland, and be 
 administered according to the, well understood principles of the British 
 Constitution, by the Sovereign personally, or by the Eepresentative of 
 the Sovereign duly authorized. (Resolution 4.) 
 
312 APPENDIX. 
 
 16. Until the Queen otherwise direct, the seat of government of 
 Canada shall be Ottawa. 
 
 IV. — Legislative Power-. 
 
 17. There shall he one parliament for Canada, consisting of the 
 Queen, an Upper House, styled the Senate, and the House of Com- 
 mons, (c) 
 
 [Section 18 was repealed hy Imperial Act 38 d- 39 Vict. c. 38, and the 
 following section substituted therefor. 
 
 18. The privileges, immunities, and powers to be held, enjoyed and 
 exercised by the Senate and by the House of Commons and by the mem- 
 bers thereof respectively shall be such as are froni time to time defined 
 by Act of the Parliament of Canada, but so that any A-Ot 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 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. 
 
 Tlie Senate, (d) 
 
 21. The Senate shall, subject to the provisions of this Act, consist of 
 seventy -two members, who shall be styled senators. 
 
 22. In relation to the constitution of the senate, Canada shall be 
 deemed to consist of three divisions — 
 
 1. Ontario ; 
 
 2. Quebec ; 
 
 3. The Maritime Provinces, Nova Scotia and New Brunswick ; which 
 three divisions shall (subject to the provisions of this Act) be equally 
 represented in the senate as follows : Ontario by twenty -four senators; 
 
 (c) There shall be a general Legislature or Parliament for the federated 
 provinces, composed of a Legislative Council and a House of Commons. 
 
 (d) The members of the Legislative Council shall be appointed by the 
 Crown under the Great Seal of the General Government, and shall hold 
 ofSce during life ; if any Legislative Couiy3illor shall for two consecutive 
 sessions of Parliament, fail to give his attendance in the said Council, 
 his seat shall thereby become vacant. (Resolutions 7, 11.) 
 
APPENDIX. 313 
 
 Quebec by twenty-four senators ; and the Maritine Provinces by twenty- 
 four senators, twelve thereof representing Nova Scotia, and twelve thereof 
 representing New Brunsivick. 
 
 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 the 
 Consolidated Statutes of Canada. 
 
 23. {See ante, page 41). 
 
 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 Eoyal 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 Governor-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 divisions of Canada is represented by twenty-four senators and 
 no more. 
 
 28. The number of senators shall not at any time exceed 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 addressed to the 
 Governor- General resign his place in the senate, and thereupon the same 
 shall be vacant. 
 
 31. {See ante, page 42). 
 
 32. When a vacancy happsns in the senate by resignation, death, or 
 otherwise, the Governor-General shall by summons to a fit and qualified 
 person fill the vacancy. 
 
 33. If any question arises respecting the qualification of a senator 
 or a vacancy in the senate the same shall be heard and determined by 
 the senate. 
 
314 APPENDIX. 
 
 34. The Governor-General may from time to time, by instrument 
 under the Great Seal of Canada, appoint a senator to be speaker of the 
 senate, and may remove him and appoint another in his stead. 
 
 35. Until the parliament of Canada otherwise provides, the presence 
 of at least fifteen senators, including the speaker, shall be necesary to 
 constitute a meeting of the senate for the exercise of its powers. 
 
 36. Questions arising in the senate shall be decided by a majority of 
 voices, and the speaker shall in all cases have a vote and when the voices 
 are equal the decision shall be deemed to be in the negative. 
 
 Thf House of Commons. 
 
 37. The House of Commons shall, subject to the provisions of this 
 Act, consist of one hundred and eighty-one members, of whom eighty- 
 two shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova 
 Scotia, and fifteen for New Brunswick, (e) 
 
 38. The Governor-General shall from time to time, in the Queen's 
 name, by instrument under the Great Seal of Canada, summon and call 
 together the House of Goininons. 
 
 39. A senator shall not be capable of being elected or of sitting or 
 voting as a member of the House of Commons. 
 
 40. Until the parliament of Canada otherwise provides, Ontario, 
 Quebec, Nova Scotia and New Brunswick shall, for the purposes of the 
 election of members to serve in the House of Commons, be divided into 
 electoral districts as follows: — (/) 
 
 41. Until the parliament of Canada otherwise provides, all laws in 
 force in the several provinces at the union relate to the following matters 
 or any of them, namely, — the qualifications and disqualifications of 
 persons to be elected or to sit or vote as members of the House of 
 Assembly or Legislative Assembly in the several provinces, the voters at 
 elections of sucla members, the oaths to be taken by voters, the return- 
 ing officers, their powpys and duties, thg proceedings at elections, the 
 periods during which elections may be continued, the trial of contro- 
 verted elections, and proceedings incident thereto, the vacating of seats 
 of members, and the execution of new writs in case of seats vacated 
 
 {c) The basis of representation in the House of Commons shall be 
 population, as determined by the of&cial census every ten yeai s ; and 
 the number of members at first shall be 194, distributed as follows : 
 
 Upper Canada 82 
 
 Lower Canada 64 
 
 Nova Scotia 19 
 
 New Brunswick 15 
 
 Newfoundland 8 
 
 Prince Edward Island 5 
 
 (Resolution 17.) 
 
 (f)A.a this has been changed it is unnecessary to insert it here. 
 
APPKNDIX. 315 
 
 Otherwise than by disBolution — shall respectively apply to elections 
 of members to serve in the House of Commons for the same several 
 provinces. 
 
 Provided that, until the parliament of Canada otherwise provides, at 
 any election for a member of the House of Commons for the district of 
 Algoma, in addition to persons qualified by the law of the province of 
 Canada to vote, every male British subject aged twenty-one years and 
 upwards, being a householder, shall have a vote. 
 
 42. For the first election of members to serve in the House of 
 Commons the Governor-General shall cause writs to be issued by such 
 persons, in such form, and addressed to such returning officers as he 
 thinks fit. 
 
 The person issuing writs under this section shall have the like powers 
 a3 are possessed at the union by the officers charged with the issuing of 
 writs for the election of members to serve in the respective House of 
 Assembly or Legislative Assembly of the province of Canada, Nova 
 Scotia, or New Brunswick ; and the returning officers to whom writs are 
 directed under this section shall have the like powers as are possessed at 
 the union by the officers charged with the returning of writs for the elec- 
 tion of members to serve in the same respective House of Assembly or 
 Legislative Assembly. 
 
 43. In case a vacancy in the representation in the Houge of Com- 
 moijs of any electoral district happens before the meeting of the parlia- 
 ment, or after the meeting of the parliament before the provision is 
 made by the parliament in this behalf, the provision of the last foregoing 
 section of this Act shall extend and apply to the issuing and retarning 
 of a writ in respect of such vacant district. 
 
 44. The House of Commons on its first assembling after a general 
 election shall proceed with all practical speed to elect one of its members 
 to be speaker. 
 
 45. In case of a vacancy happening in the office of speaker by death, 
 resignation or otherwise, the House ^f Commons shall with all practic- 
 able speed proceed to elect another of its members to be speaker. 
 
 46. The speaker shall preside at all meetings of the House of Com- 
 mons. 
 
 47. Until the 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 Com- 
 mons 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. 
 
316 APPENDIX. 
 
 49. Questions arising in th& 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 othervyise, the speaker shall have a vote. 
 
 50. Every House of Commons shall continue for five years from the 
 day of the return of the writs for choosing the House (subject to be 
 sooner dissolved by the Governor- General), and no longer. 
 
 51. On the completion of the census in the year one thousand eight 
 hundred and seventy-one, and of each subsecjuent decennial census 
 the representation of the four provinces shall be readjusted by such 
 authority, in such manner and from such time as the parliament of 
 Canada from time to time provides subject and according to the follow- 
 ing rules : — 
 
 (1.) Quebec shall have the fixed number of sixty-five members. 
 
 (2.) There shall be assigned to each of the other provinces such a 
 number of members as will bear the same proportion to the 
 number of its population (ascertained at such census) as the 
 number sixty-five bears to the number of the population of 
 Quebec (so ascertained). 
 
 (3.) In tlie computation of the number of members for a province a 
 fractional part not exceeding one half of the whole number 
 requisite for entitling the province to a member shall be disre- 
 garded ; but a fractional part exceeding one half of that number 
 shall be equivalent to the whole number. 
 
 (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 aggre- 
 gate population of Canada at the then last preceding re-adjust- 
 ment of the number of members for the province is ascertained 
 at the then last census to be diminished by one twentieth part 
 or upwards. 
 
 (5.) Such re-adjustment shall not take effect until the termination of 
 the then existing parliament. 
 
 62. The number of members of the House of Commons may be from 
 time to time increased by the Parliament of Canada, provided the pro- 
 portionate representation of the provinces prescribed by this Act is not 
 thereby disturbed. 
 
 Money Totes; Royal Assent. 
 
 53. Bills for appropriating any part of the public revenue, or for 
 imposing any tax or impost, shall originate in the House of Commons. 
 
 S*. It shall not be lawful for the House of Commons to adopt or pass 
 any vote, resolution, address, or bill for the appropriation of any part of 
 the public revenue, or of any tax or impost, to any purpose that has not 
 
APPENDIX. 317 
 
 been first recommended to that house by message of the Governor- 
 General in the session in which snch vote, resolution, address, or bill is 
 proposed. 
 
 55. Where a bill passed by the Houses of the Parliament is 
 presented to the Governor-General for the Queen's assent, he shall 
 declare, according to his discretion, but subject to the provisions of 
 this Act and to Her Majesty's instructions, either that he assents 
 thereto in the Queen's name, or that he ■withholds the Queen's assent, 
 or that he reserves the bill for the signification of the Queen's pleasure. 
 
 56. Where the Governor-General assents to a bill in the Queen's 
 name, he shall by the first convenient opportunity send an authentic 
 copy of the Act to one of Her Majesty's principal secretaries of state ; 
 and if the Queen in council within two years after the receipt thereof 
 by the secretary of state of the day on which the Act was received by 
 him) being signified by the Governoir- General, by speech or message to 
 each of the Houses of the Parliament, or by proclamation, shall annul 
 the Act from and after the day of such signification. 
 
 57. A bill reserved for the signification of the Queen's pleasure shall 
 not have any force unless and until within two years from the day on 
 which it was presented to the Governor-General for the Queen's assent, 
 the Governor-General signifies by speech or message to each of the 
 Houses of the Parliament or by proclaniation, that it has received the 
 assent of the Queen in council. 
 
 An entry of every such speech, message, or proclamation shall be made 
 , in the journal of each House, and a duplicate thereof duly attested 
 shall be delivered to the proper officer to be kept among the records of 
 Canada. 
 
 V. — Pkovincial Constitutions, (g) 
 
 lExecutive Fower. 
 
 68. For each province there shall be an officer, styled the Lieutenant- 
 Governor, appointed by the Governor-General in council by instrument 
 under the Great Seal of Canada. 
 
 (g) The Local Government and Legislature of each province shall be 
 constructed in such mamier as the existing Legislature of each such 
 province shall provide. 
 
 The Local Legislature shall have power to alter or amend their 
 Constitution from time to time. 
 
 The power of respiting, reprieving, and pardoning prisoners convicted 
 of crimes, and of commuting and remitting of sentences in whole or in 
 part, which belongs of right to the Crown, shall be administered by the 
 Lieutenant-Governor of each province in council, subject to any instruc- 
 tions he may, from time to time receive from the General Government, 
 and subject to any provisions that may be made in this behalf by the 
 General Parliament. (Eesolutions 41, 42 and 44.) 
 
318 APPENDIX. 
 
 59. A Lieutenant-Governor shall hold office during the pleasure of 
 the Governor-General ; but any Lieutenant-Governor appointed after 
 the commencement of the first session of the Parliament of Canada shall 
 not be removable within five years from his appointment, except for 
 cause assigned, which shall he communicated to him in writing within 
 one month after the order for his removal is made, and shall be 
 communicated by message to the Senate and to the House of Commons 
 within one week thereafter if the Parliament is then sitting, and if not 
 then within one week after the commencement of the next session of the 
 Parliament. 
 
 60. The salaries of the Lieutenant-Governors shall be fixed and 
 provided by the Parliament of Canada. 
 
 SI. Every Lieutenant-Governor shall, before assuming the duties of 
 his office, make and subscribe before the Governor-General or some 
 person authorized by him, oaths of allegiance and office similar to those 
 taken by the Governor-General. 
 
 62. The provisions of this Act referring to the Lieutenant-Governor 
 extend and apply to the Lieutenant-Governor for the time being of each 
 province or other the chief executive officer or administrator- for the 
 time being carrying on the government of the province, by whatever title 
 he is designated. 
 
 63. The executive council of Ontario and of Quebec shall be composed 
 of such persons as the Lieutenant-Governor from time to time thinks 
 fit, and in the first instance of the following officers, namely : — the 
 attorney-general, the secretary and registrar of the province, the 
 commissioner of crown lands, and the commissioner of agriculture and 
 public works, within Quebec, the speaker of the legislative council and 
 the solicitor-general. 
 
 64. The Constitution of the executive authority in each of the 
 Provinces of Nova Scotia and New Brunswick shall, subject to the pro- 
 visions of this Act, continue as it exists at the Union until altered under 
 the authority of this Act. 
 
 65. {See ante, page 140). 
 
 66. The provisions of this Act referring to the Lieutenant-Governor 
 in Council shall be construed as referring to the Lieutenant-iiovernor 
 of the Province acting by and with the advice of the Executive Council 
 thereof. 
 
 67. The Governor-General in- Council may from time to time appoint 
 an administrator to execute the office and functions of Lieutenant- 
 Governor during his absence, illness, or other inability. 
 
 68. Unless and until the Executive Government of any Province other- 
 wise directs with respect to that Province, the seats of Government of the 
 Provinces shall be as follows, namely,— of Ontario, the i 'ity of Toronto ; 
 of Quebec, the City of Quebec ; of Nova Scotia, the City of Halifax ; and 
 of New Brunswick, the City jf Predericton. 
 
APPENDIX. 319 
 
 Legislative Powers, (h) 
 1.— ONTARIO. 
 
 69. There shall be a legislature for Ontario consisting of the Lieuten- 
 ant-Governor and of one House, styled the Legislative Assembly of 
 Ontario. 
 
 70. The Legislative Assembly of Ontario shall be composed of eighty- 
 two members, to be elected to represent the eighty-two electoral districts 
 set forth in the first schedule to the Act. 
 
 2-QTJEBEC. 
 
 71. There shall be a Legislature for Quebec consisting of the Lieu- 
 tenant-Governor and of two Houses, styled the Legislative Council of 
 Quebec and the Legislative Assembly of Quebec. 
 
 7 2. The Legislative Council of Quebec shall be composed of twenty- 
 four members, to be appointed by the Lieutenant-Governor in the Queen's 
 name, by instrument under the Great Seal of Quebec, one being appointed 
 to represent each of the twenty-four electoral divisions of Lower Canada, 
 in this Act referred to, and each holding of&ce for the term of his life, 
 unless the Legislature of Quebec otherwise provides under the provisions 
 of this Act. 
 
 7 3. The qualifications of the Legislative Councillors of Quebec shall 
 be the same as those of the Senators for Quebec. 
 
 74. The place of a Legislative Councillor of Quebec shall become 
 vacant in the cases viutatis mutandis, in which the place of Senator 
 becomes vacant. 
 
 75. When a vacancy happens in the Legislative Council of Quebec, 
 by resignation, death, or otherwise, the Lieutenant-Governor, in the 
 Queen's name by instrument under the Great Seal of Quebec, shall 
 appoint a fit and qualified person to fill the vacancy. 
 
 76. If any question arises respecting the qualification of a Legislative 
 Councillor of Quebec, or a vacancy in the Legislative Council of Quebec, 
 the same shall be heard aud determined by the Legislative Council. 
 
 77. The Lieutenant-Governor may from time to time, by instrument 
 under the Great Seal of Quebec, appoint a member of the Legislative 
 Council of Quebec to be Speaker thereof, and may remove him and ap- 
 point another in his stead. 
 
 {h) The resolutions are silent as to the matters from sees. 69 to 90 both 
 inclusive and 134 to 144 also. 
 
320 APPENDIX. 
 
 78. Until the Legislature of Quebec otherwise provides, the presence 
 of at least ten members of the Legislative Council, including the Speaker, 
 shall be necessary to constitute a meeting for the exercise of its powers. 
 
 79. Questions arising in the Legislative Council of Quebec shall be 
 decided by a majority of voices, and the Speaker shall in all cases have a 
 vote, and when the voices are equal the decisions shall be deemed to be in 
 the negative. 
 
 80. The Legislative Assembly of Quebec shall be composed of sixty- 
 five members, to be elected to represent the sixty five electoral divisions 
 or disLricts of Lower Canada in this Act referred to, subject to alteration 
 thereof by the Legislature of Quebec : Provided that it shall not be lawful 
 to present to the Lieutenant-Governor of Quebec for assent any bill for 
 altering the limits of any of the electoral divisions or districts mentioned 
 in the second schedule to this Act, unless the second and third readings, 
 of such bill have been passedin the Legislative Assembly with the con- 
 currence of the majority of the members representing all those electoral 
 divisions or districts, and the assent shall not be given to such bill unless 
 an address has been presented by the Legislative Assembly to the Lieu- 
 tenant-Governor stating that it has been so passed. (<;) 
 
 3.— ONTAEIO 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 instrument of the Great Seal of 
 the Province, summon and call together the Legislative Assembly of the 
 Province. 
 
 83. Until the Legislature of Ontario or of Quebec otherwise pr-ovides, 
 a person accepting or holding in Ontario or Quebec any office, commission, 
 or employment, permanent or temporary, at the nomination of the 
 Lieutenant-Governor, to which an annual salary, or any fee, allowance, 
 emolument, or profit of any kind or amount whatever, from the Province 
 is attached, shall not be eligible as a member of the Legislative Assembly 
 of the respective Province, nor shall he sit or vote as such ; but nothing 
 in this section shall make eligible any person being a member of the 
 Executive Council of the respective Province, or holding any of the fol- 
 lowing 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-General, or shall disqualify him to sit or vote in 
 the House for which he is elected, provided he is elected while holding 
 such office. 
 
 84. Until the Legislatures of Ontario and Quebec respectively other- 
 wise provide, all laws which at the Union are in fores in those Provinces 
 respectively, relate to the following matters, or any of them, namely, 
 — the qualification and disqualifications of persons to be elected or to sit 
 or vote as members of the Assembly of Canada, the qualifications or dis- 
 qualifications of voters, the oaths to be taken by voters, the returning 
 
APPENDIX. 321 
 
 officers, their powers and duties, the proceedings at elections, the period 
 during which such elections may be continued, and the trial of contro- 
 verted elections and the proceedings incident thereto, the vacating of the 
 seats of members and the issuing and execution new writs in case of seats 
 vacated otherwise than by dissolution shall respectively apply to elections 
 of members to serve in the respootive Legislative Assemblies of Ontario 
 and Quebec. 
 
 Provided that until the Legislature of Ontario otherwise provides, at 
 any election for a member of the Legislative Assembly of Ontario for the 
 District of Algoma, in addition to persons 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 Legislative 
 Assembly of Quebec shall continue for four years from the day of the 
 return of the writs for choosing the same (subject nevertheless to either 
 the Legislative Assembly of Ontario or the Legislative Assembly of 
 Quebec being sooner dissolved by the Lieutenant-Governor of the Pro- 
 vince) , and no longer. 
 
 86. There shall be a Session of the Legislature of Ontario and of that 
 of Quebec once at least in every year, so that twelve months shall not 
 intervene between the last sitting of the Legislature in each Province in 
 one session and its first sitting in the next Session. 
 
 87. The following provision of this Act respecting the House of 
 Commons of Canada shall extend and apply to the Legislative Assemblies 
 of Ontario and Quebec, that is to say, — the provisions relating to the 
 election of a Speaker originally and on vacancies, the duties of the 
 Speaker, the absence of the Speaker, the quorum, the mode of voting, as if 
 those provisions were here re-enacted and made applicable in terms to 
 each such Legislative Assembly. 
 
 4.— NOVA SCOTIA AND NEW BRUNSWICK. 
 
 88. The constitution of the Legislature of each of the Provinces of 
 Nova Scotia and New Brunswick shall, subject to the provisions of 
 this Act, continue as it exists at the XJnion until altered under the 
 authority of this Act ; and the House of Assembly of New Brunswick 
 existing at the passing of this Act shall, unless sooner dissolved, continue 
 for the period for which it was elected. 
 
 5.— ONTARIO, QUEBEC, AND NOVA SCOTIA. 
 
 89. Each of the Lieutenant-Governors of Ontario, Quebec 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 address to such Returning Officer as the 
 Governor-General directs, and so that the first election of member of 
 Assembly for any Electoral District or any sub-division thereof shall be 
 held a^ the same time and at the same places as the election for a mem- 
 ber to asrve in the House of Commons of Canada for that electoral dis- 
 trict. 
 
 o's. G. c. 22 
 
322 AI'PKNDJX. 
 
 6.— THE FOUE 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 disal- 
 lowance 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 re-enacted and made applicable in terms to the 
 respective provinces and the legislatures thereof, with the substitution of 
 the Lieutenant-Grovernors 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. 
 
 91. See page 99 for this and the next section. (() 
 
 (i) 29th Resolution is as follows : 
 
 The General Parliament shall have power to make laws for the peace, 
 welfare and good government of the federated provinces (saving the 
 Sovereignty of England) and especially laws respecting the following 
 subjects : ( Then follows a list not differing materially from the classes in 
 sec. 91 ; the last one being as follows:] And generally respecting all 
 matters of a general character, not specially and exclusively reserved for 
 the Local Government and Legislatures. 
 
 The 43rd resolution is as follows : 
 
 The Local Legislatures shall have power to make laws respecting the 
 following subjects : 
 
 1. Direct taxation, and in New Brunswick the imposition of duties on 
 
 the export of timber, logs, masts, spars, deals and sawn lumber ; 
 and in Nova Scotia, of coals and other minerals. 
 
 2. Borrowing money on the credit of the province. 
 
 3. The establishment and tenure of local offices, and the appointment 
 
 and payment of local officers. 
 
 4. Agriculture. 
 
 5. Immigration. 
 
 6. Education ; saving the rights and privileges which the Protestant or 
 
 Catholic minority in both Canadas may possess as to their 
 denominational schools, at the time when the union goes into 
 operation 
 
 7. The sale and management of both public lands, excepting lands 
 
 belonging to the general government. 
 
 8. Sea coast and inland fisheries. 
 
 9. The establishment, maintenance and management of penitentiaries 
 
 and public and refo:matory prisons. 
 
 10. The establishment, maintenance and management of hospitals, 
 
 asylums, charities, and eleemosynary institutions. 
 
 11. Municipal institutions. 
 
 12. Shop, saloon, tavern, auctioneer and other licenses. 
 
 13. Local works. 
 
 14. The incorporation of private or local companies, except such as 
 
 relate to matters assigned to the general parliament. 
 
APPENDIX. 323 
 
 Ediication. (j) 
 
 93. In and for each province the legislature may exclusively make 
 laws in relation to education, subject and according to the follov?ing pro- 
 visions : — 
 
 (1.) Nothing in any such law shall prejudicially affect any right or 
 privilege with respect to denominational schools which any class 
 of persons have by-law in the Province at the Union : — 
 
 (2.) All powers, privileges, and duties at the Union by law conferred 
 and imposed in Upper Canada on the separate schools and 
 school trustees of the Queen's Roman Catholic subjects shall be 
 and the same are hereby extended to the dissential schools of the 
 Queen's Protestant and lioman Catholic subjects in Quebec. 
 
 (3). Where in any Province a system of separate or dissentient 
 schools exists by law at the Union or is thereafter established 
 by the Legislature of the Province, an appeal shall lie to the 
 Governor-General in Council from any Act or decision of any 
 provincial authority affecting any right or privilege of the Pro- 
 testant or Boman Catholic mii>ority of the Queen's subjects in 
 relation to education. 
 
 (i). In case any such provincial law as from time to time seems to the 
 Governor-General in Council requisite for the due execution of 
 the provisions 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 executed by the proper Provincial authority 
 in that behalf, then and in every such case, and as far only as 
 the circumstances of each case require, the Parliament of Canada 
 may make remedial laws for the due execution for the provisions 
 of this section and of any decisions of the Governor-General in 
 Council under this section. 
 
 . Uniformity of Laws in Ontario, Nova Scotia and New Brunswich. 
 
 94. Notwithstanding anything in this Act, the Parliament 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 Bruns- 
 wick, and of the procedure of all or any of the Courts in those t'oree 
 
 15. Property and civil rights, excepting those portions thereof assigned 
 
 to the general parliament. 
 If). Inflicting punishment by fine, penalties, imprisonment or otherwise, 
 
 for the breach of laws passed in relation with any subject 
 
 within their jurisdiction. 
 
 17. The administration of justice, including the constitution main- 
 
 tenance and organization of the courts both of civil and criminal 
 jurisdiction, and including also the procedure in civil matters. 
 
 18. And generally all matters of a private or local natnre not assigned 
 
 to the general parliament. 
 
 (j) See the preceeding note. 
 
324 APPENDIX. 
 
 Jprovinoes ; and from and after the passing of any Act in that behalf the 
 power of the Parliament of Canada to make law in relation to any 
 matter comprised in any such Act shall, notwithstanding anything in 
 this Act, be unrestricted ; but any Act of the Parliament of Canada 
 making provision for such uniformity shall not have effect in any pro- 
 vince unless and until it is adopted and enacted as law by the Legisla- 
 ture thereof. 
 
 Agriculture and Immigration. 
 
 95. In each Province the Legislature may make laws in relation to 
 agriculture in the Province, and to immigration into the Province ; and 
 it is hereby declared that the Parliam:ent of Canada may from time to 
 time make laws in relation to Agriculture in all or any of the Provinces, 
 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. 
 
 VII . — Jddicatuee . 
 
 96. The Governor-General shall appomt the judges of the Superior, 
 District and County Courts in each Province, except those of the Courts 
 of Probate in Nova Scotia and New Brunswick. 
 
 97. Until the laws relative to property and civil rights in Ontario, 
 Nova Scotia, and New Brunswick, and the procedure of the courts in 
 those Provinces, are made uniform, the judges of the courts of those 
 Provinces appointed by the Governor- General shall be selected from the 
 respective bars of those Provinces. 
 
 98. The Judges of the Courts of Quebec shall be selected from the Bar 
 of that Province. 
 
 99. The Judges of the Superior Courts shall hold office during good 
 behaviour, but shall be removable by the Governor- General on address of 
 the Senate and House of Commons. 
 
 100. The salaries, allowances and pensions of the Judges of the 
 Superior, District and County Courts (except the Courts of Probate in 
 Nova Scotia and New Brunswick,) and of the Admiralty Courts in cases 
 where the Judges thereof are for the time being paid by salary, shall be 
 fixed and provided by the Parliament of Canada. 
 
 BOI. See page 181, ante. 
 
 VIII. — Hevenues ; Debts ; Assets ; Tax-^tion. 
 
 102. All duties and revenues over which the respective Legislatures of 
 Canada, Nova Scotia and New Brunswick before and at the Union had 
 and have power of appropriation, except such portions thereof as are by 
 this Act reserved to the respective legislatures of the province, or are 
 
APPENDIX. 325 
 
 raised by them in accordance witli the special powers conferred on them 
 by this Act, shall form one consolidated revenue fund, to be appropriated 
 for the public service of Canada in the manner and subject to the charges 
 in this Act provided. 
 
 103. The consolidated revenue fund of Canada shall be permanently 
 charged with the costs, charges, and expenses incident to the collection, 
 management, and receipt thereof, and the same shall form the first 
 charge thereon, subject to be reviewed and audited in such manner as 
 shall be ordered by the Governor-General in Council until the Parliament 
 otherwise provides. 
 
 104"- The annual interest of the public debt of the several Provinces of 
 Canada, Nova Scotia, and New Brunswick at the Union, shall form the 
 second charge on the consolidated revenue fund of Canada. 
 
 lOS. 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 con- 
 solidated Revenue Fund of Canada, and the same shall form the third 
 charge thereon. 
 
 I ^"6. Subject to the several payments by this Act charged on the con- 
 solidated revenue fund of Canada, the same shall be appropriated by 
 the Parliament of Canada for the public service. 
 
 i07.. All stocks, cash, banker's balances, and securities for money be- 
 longing to each Province at the time of the Union, except as in this Act 
 mentioned, shall be the property of Canada, and shall be taken in reduc- 
 tion of the amount of the respective debts of the Provinces at the Union. 
 
 108. The public works and property of each province enumerated in 
 the third schedule to this Act, shall be the property of Canada, (/c) 
 
 109. 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 existing in respect thereof, and to any interest other than that 
 of the province in the same. , 
 
 110. All assets connected with such portion of the public debt of each 
 Province as are assumed by that Province shall belong to that Province. 
 
 11^. Canada shall be liable for the debts and liabilities of each Province 
 existing at the Union. 
 
 112. Ontario and Quebec conjointly shall be liable to Canada for the 
 amount (if, any by which the debt of the Province of Canada exceeds at 
 the Union sixty-two million five hundred thousand dollars, and shall be 
 charged with interest at the rate of five per centum per annum thereon. 
 
 (k) See ante, page 115 for this schedule. 
 
326 APPENDIX. 
 
 113. The assets enumerated in the fourth schedule to the Act belong- 
 ing at the Union to the Province of Canada shall he the property of 
 Ontario and Quebec conjointly. (/) 
 
 114. Nova Scotia shall be liable to Canada for the amount (if any) by 
 which its pubUc debt exceeds at the 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 amount (if any) 
 by which its public debts exceeds at the Union seven million dollars, and 
 shall be charged with interest at the rate of five per centum per annum. 
 
 116. In case the public debt of Nova Fcotia and New Brunswick do 
 not at the Union amount to eight million and seven million dollars 
 respectively, they shall respectively receive by half-yearly payments in 
 advance from the Government of Canada interest at five per centum per 
 annum on the difference between the actual amounts of their respective 
 debts and such stipulated amounts. 
 
 117. The several provinces shall retain their respective public property 
 not otherwise disposed of in this Act, subject to the right of Canada to 
 assume any lands or public property required for fortifications or for the 
 defence of the country. 
 
 118. The following sums shall be paid yearly by Canada to the several 
 provinces for the support of their governments and legislatures : 
 
 Dollars. 
 Ontario Eighty thousand. 
 
 Quebec Seventy thousand. 
 
 Nova Scotia - Sixty thousand. 
 
 New Brunswick Fifty thousand. 
 
 Two hundred and sixty thousand ; 
 and an annual grant in aid of each province shall be made, equal to 
 eighty cents per head of the population as ascertained by the census of 
 one thousand eight liundred 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 
 grants shall be in full settlement of all future demands on Canada, and 
 shall be paid half-yearly in advance to each province ; but the Govern- 
 ment of Canada shall deduct from such grants, as against any province, 
 all sums chargeable as interest on the public debt of that province in 
 excess of the several amounts stipulated in this Act. 
 
 119. New Brunswick shall receive by half-yearly payments in advance 
 from Canada for the period of ten years 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 
 
 (i) See ante, page 118 for this schedule. 
 
APPENDIX. 327 
 
 deduction equal to the interest at five per centum per annum on such 
 deficiency shall be made from the allowance of sixty-three thousand 
 dollars. 
 
 120. All payments to be made under this Act, or in discharge of 
 liabilities created under any Act of the province 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. 
 
 121. All articles of the growth, produce, or manufacture of any one of 
 the provinces shall from and after the Union, be admitted free into each 
 of the other provinces. 
 
 122. The customs and excise laws of each province shall, subject to 
 the provisions of this Act, continue in force until altered by the Parlia- 
 ment of Canada. 
 
 123. Where customs duties are, at the Union, leviable on any goods, 
 or merchandises in any two provinces, those goods, wares, or merchan- 
 dises may, from and after the Union, be imported from one of those 
 provinces into the other of them on proof of payment of the customs 
 duty leviable thereon in the province of exportation, and on payment of 
 such further amount (if any) ot 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 chapter fifteen of title three of the 
 Revised Statutes of New Brunswick, or in any Act amending that Act 
 before or after the Union, and not increasing the amount of such dues; 
 but the lumber of any of the provinces other than New Brunswick shall 
 not be subjected to such dues. 
 
 125. No lands or property belonging to Canada or any province shall, 
 be liable to taxation. 
 
 126. Such portions of the duties and revenues over which the respective 
 legislatures of Canada, Nova Scotia, and New Brunswick had before the 
 Union power of appropriation as are by the Act reserved to the respective 
 governments or legislatures of the provinces, and all duties and revenues 
 raised by them m 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 Pkovisions. 
 General. 
 
 127. If any person being at the passing of this Acta, member of the 
 legislative council of Canada, Nova Scotia, or New Brunswick, to whom 
 a place in the senate is offered, does not within thirty days thereafter, by 
 writing under his hand addressed to the Governor-General of the pro- 
 
328 APPENDIX. 
 
 vince of Canada or to the Lieutenant-Governor of Nova Scotia or New 
 Brunswick (as the case may be), accept the same, he shall be deemed to 
 have declined the same; and any person who, being at the passing of 
 this Act a member of the legislative council of Nova Scotia or New 
 Brunswick, accepts a place in the senate shall thereby vacate his seat in 
 such legislative council. 
 
 128. Every member of the senate or housfe of commons of Canada 
 shall before taking his seat therein take and subscribe before the 
 Governor-General or some person authorized by him, and every member 
 of a Legislative Council or a Legislative Assembly of any province shall 
 before taking his seat therein take and subscribe before the Lientenant- 
 Governor of the province or some person authorized by him, the oath of 
 allegiance contained in the fifth Schedule to this Act ; and every member 
 of the senate of Canada and every member of the Legislative Council of 
 Quebec shall also, before taking bis seat therein, take and subscribe before 
 the Governor-General, or some person authorized by him, the declaration 
 of qualification contained in the same schedule, (m) 
 
 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 ofS-oers, judicial, administrative and ministerial, 
 existing 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 parliament of Great Britain or of the parlia- 
 ment of the United Kingdom of Great Britain and Ireland,) to be 
 repealed, abolished, or altered by the parliament of Canada, or by the 
 Legislature of the respective province, according to the authority of the 
 parliament or of that Legislature under this Act. 
 
 130. Until the parliament of Canada otherwise provides, 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 exclusively to the Legislatures of the provinces shall be officers 
 of Canada, and shall continue to discbarge the duties of their respective 
 offices under the same liabilities, responsibilities and penalties as if the 
 Union had not been made. 
 
 S3!. 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 the Act. 
 
 132. The parliament and government of Canada shall have all 
 powers necessary or proper for performing the obligations 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. 
 
 (m) See ante, page 43. 
 
APPENDIX. 329 
 
 133. Either the English or the French language may be used by any 
 person in the debates of the houses of the parliament of Canada and of 
 the houses of the legislature of Quebec ; 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 pro- 
 cess in or issuing from any court in 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 legislature of Quebec 
 shall be printed and published in both those languages. 
 
 Ontario and Quebec. 
 
 134. Until the legislature of Ontario or of Quebec otherwise provides 
 the Lieutenant-Governors of Ontario and Quebec may each appoint 
 under the great seal of the province the following officers, to hold 
 office during pleasure, that is to say — the Attorney-General the Secretary, 
 and Eegistrar of the Province, the Treasurer of the Province, the 
 Commissioner of the Crown Lands, and the Commissioner of Agricul- 
 ture and Public Works, and in the case of Quebec the Solicitor-General ; 
 and may, by order of the Lieutenant-Governor in council, from time to 
 time prescribe the duties of those officers and of the several departments 
 over which 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 prescribe 
 i he duties of those officers, and of the several departments over which 
 they shall preside, or to which they shall belong, and of the officers and 
 clerks thereof. 
 
 135. Until the legislature of Ontario or Quebec otherwise provides, 
 all rights, powers, duties, functions, responsibilities, or authorities at 
 the passing of this Act vested in or imposed on the Attorney-General, 
 Solicitor-General, Secretary and Registrar of the Province of Canada, 
 Minister of Pinance, Commissioner of Crown Lands, (Commissioner of 
 Public Works, and Minister of Agriculture and Eeceiver-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 officer to be appointed by the Lieutenant-Governor for the discharge 
 of the same or any of them ; and the Commissioner of Agriculture and 
 Public Works shall perform the duties and functions of the office of 
 Minister of Agriculture at the passing of this Act imposed by the law 
 of the province of Canada, as well as those of the Commissioner of 
 Public Works. 
 
 136. Until altered by the Lieutenant-Governor in council, the great 
 seals of Ontario and Quebec respectively shall be the same or of the 
 same design as those used in the provinces of Upper Canada and Lower 
 Canada respectively before their Union as the province of Canada. 
 
 137. The words " and from thence to the end of the then next ensu- 
 ing session of the legislature," or words to the same effect, used in any 
 
330 , APPENDIX. 
 
 temporary Act of the Province of Canada not expired before the union, 
 shall be construed to extend and apply to the next session of the Parlia- 
 ment 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 legisla- 
 tures 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 Canada " instead of " Que- 
 bec," 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 which is subse- 
 quent to the Union, whether relating to that Province, or to Upper 
 Canada, or to Lower Canada, and the several matters and things therein 
 proclaimed shall be and continue of like force and effect as if the Union 
 had not been made. 
 
 I40. Any proclamation which is authorized by any Act of the legisla- 
 ture of the Province cf Canada to be issued under the Great Seal of the 
 Province of Canada, whether relating to that Province, or to Upper 
 Canada, or to Lower Canada, and which is now 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 proclamation 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 Par- 
 liament 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 Gov- 
 ernment of Ontario, one by the Government of Quebec, and one by the 
 Government of Canada ; and the selection of the arbitrators 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 in Ontario or in Quebec. 
 
 143. The Governor-General in council may from time to time order 
 that such and so many of the records, books, and documents of the Pro- 
 vince of Canada as he thinks fit 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 thereof or extract therefrom, 
 duly certified by the officer having charge of the original thereof shall be 
 admitted as evidence. 
 
APPENDIX. 331 
 
 144. The Lieutenant-Governor of Quebec may from time to time by 
 proclamation under the Great Seal of the Province, to take effect from 
 a day to be appointed thereni, constitute townships in those parts of the 
 Province of Quebec in which townships are not then already constituted, 
 and fix the metes and bounds thereof. 
 
 X. — Intekcolonial Bailway. 
 
 145. Inasmuch as the Provinces of Canada, Nova Scotia and New 
 Brunswick have joined in a declaration that the construction of the 
 Intercolonial Bailway is essential to the consolidation of the Union of 
 British North America, and to the assent thereto of Nova Scotia and 
 New Brunswick, and have consequently agreed that provision should be 
 made for its immediate construction by the Government of Canada : 
 Therefore, in order to give effect to that agreement, it shall be the duty 
 of the Government and Parliament of Canada to provide for the com- 
 mencement' within six months after the Union, of a railway connecting 
 the Kiver St. Lawrence with city of Halifax in Nova Scotia, and for the 
 construction thereof without intermission, and the completion thereof 
 with all practicable speed. 
 
 XI. — Admission or other Colonies. 
 
 146. It shall be lawful for the Queen, by and with the advice of Her 
 Majesty's Most Honouraible Privy Council, on addresses from the Houses 
 of Parliament of Canada, and from the Houses of the respective legisla- 
 tures of the Colonies or Provinces of Newfoundland, Prince Edward 
 Island, and British Columbia, to admit those colonies or provinces, or 
 any 6f them, into the Union, and on address from the Houses of the 
 Parliament in Canada to admit Rupert's Land and the North-Western 
 Territory, or either of them, into the Union, on such terms and condi- 
 tions in each case as are in the addresses expressed and as the Queen 
 thinks fit to approve, subject to the provisions of this Act ; and the pro- 
 visions of any order in council in that behalf shall have effect as if they 
 had been enacted by the 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 tliem, 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 
 each of those Provinces shall not be increased at any time beyond ten, 
 except under the provisions of this Act for the appointment of three or 
 six additional Senators under the direction of the Queen. 
 
332 APPENDIX. 
 
 THE B. N. A. AC 1', 34-35 VICT. o. 28. 
 
 An Act respecting the establishment of Provinces in the Dominion of 
 
 Canada. 
 
 [29<A June, 1871.] 
 
 Whereas doubts liave been entertained respecting the powers of the 
 Parliament of Canada to establish provinces in Territories admitted, or 
 which may hereafter be admitted into the Dominion of Canada, and to 
 provide for the representation of such provinces in the said parliament, 
 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 North 
 America Act, 1871." 
 
 2. The parliament of Canada may from time to time establish new 
 provinces iu any teri'itories forming for the time being part of the 
 Dominion of Canada, but not included in any province thereof, and may, 
 at the time of such establishment, make provision for the constitution 
 and administration of any such province, and for the passing of laws for 
 the peace, order, and good government of such province, and for its 
 representation in the said parliament. 
 
 3. The parliament of Canada may from time to time, with the consent 
 of the Legislature of any province of the said Dominion, increase, 
 diminish, or otherwise alter the limits of such province, upon such 
 terms and conditions as may be agreed to by the said Legislature, and 
 may, with the like consent, make provision respecting the effect and 
 operation of any such increase or diminution or alteration of territory in 
 relation to any province affected thereby. 
 
 At' The parliament of Canada may from time to time make provision 
 for the administration, peace, order and good government of »nv territory 
 not for the time being included in any province. 
 
 5. The following Acts passed by the said parliament of Canada, and 
 intituled respectfully : "An Act for the temporary government of 
 Eupert's Land and the North-Western Territory when united with 
 Canada," and " An Act to amend and continue the Act thirty-two and 
 thirty-three Victoria, chapter three, and to establish and provide for the 
 government of the province of Manitoba," shall be and be deemed to 
 have been valid and effectual for all purposes whatsoever from the date 
 at which they respectively received the assent, in the Queen's name, of 
 the Governor-General of the said Dominion of Canada. 
 
APPENDIX. 333 
 
 6. Except as provided by the third section of this Act, it shall not be. 
 competent for the parliament of Canada to alter the provisions of the 
 last mentioned Act of the said parliament, in so far as it relates to the 
 province of Manitoba, or of any other Act hereafter establishing new 
 provinces in the said Dominion, subject always to the right of the 
 Legislature of the province of Manitoba to alter from iime to time the 
 provisions of any law respecting the qualification of electors and mem- 
 bers of the Legislative Assembly, and to make laws respecting elections 
 in the said province. 
 
 THE PARLIAMENT OF CANADA ACT, 1875. 
 
 This Act was passed to amend section 18 of the B. N. A. Act of 1807 
 already referred to in that Act, section 2 is as follows : 
 
 The Act of the parliament of Canada passed in the thirty-first year 
 of the reign of Her present Majesty, chapter twenty-four, intituled "An 
 Act to provide for oaths to witnesses being administered in certain oases 
 for the purposes of either House of Parliament " shall be deemed to be 
 valid, and to have been valid as from the date at which the Eoyal 
 Assent was given thereto by the Governor-General of the Dominion of 
 Canada. 
 
I N DEX 
 
 A 
 Act, The B. N. A., 309— 
 
 Mr. Dicey on, 3 
 
 divisions of, 5 
 
 general view of, 2 
 
 preamble of, 3 
 Agkiculture — 
 
 (See department of) 
 
 department of, in Ontario, 155 
 Aliens — 
 
 Position and rights of, 223. 
 Appeals — 
 
 When allowable, 197 
 Attobneys — (See officers of the lav?) 
 Atxoenei'-G-enekal — 
 
 Department and duties of, 152 
 America — 
 
 Three claimants to continent of, 249 
 Acditok-Geneeal — 
 
 Appointment and duties of, 72 
 Autonomy of Psovinces — 
 
 C. J. Ritchie on, 138 
 
 B 
 
 Bagehot — 
 
 On English constitution, 38 
 
 Baemstees — 
 
 Appointment of, etc., 202 
 Bills — 
 
 Different stages of, 123 
 
 Origin of different kinds, 12'! 
 
 Supply, 24 
 
 Blake, Me. 
 
 On powers of British Parliament, 12 
 
336 INDEX, 
 
 Beitish Columbia — 
 
 Admission of, to union, 172 
 Legislature of, 172 
 
 c 
 
 Cabinet, The (See Privy Council) 
 Cabinet questions, 62 
 
 Canada — 
 
 Ceded to Britain by Treaty of Paris, 17 
 
 divided by Lord Carleton, 27(5 
 
 early governments of, 250 
 
 first held by Prance, 250 
 
 government of, previous to Quebec Act, 265 
 
 invited to join in American revolution, 273 
 
 old province of, divided, 4 
 
 Canada Gazette, 74 
 
 Canadas, the divided, 278 
 
 Canadas, the tlnited, 286 
 
 Census, when taken, 76 
 
 Cheistianity recognized by law, 244 
 
 Chueoh not established in Canada, 243 
 
 Civil matters, procedure in, belongs to provinces, 196 
 
 Cleeoy, tithes of the Roman Catholic, 281 
 
 reserves, 281 
 Colonies, sovereign power always divided in, 20 
 Commerce, (see department of trade and commerce.) 
 Commissions of enquiry, 240 
 Commons, House of — 
 
 how constituted, 51 
 
 importance of, 18 
 
 pay of members of, 53 
 
 persons entitled to vote for members of, 54 
 
 persons ineligible as members of, 53 
 
 powers of, 58 
 
 privileges of members of, 59 
 
 Coneedeeation, 291 
 
 Conference, between Senate and Commons, 123 
 
 Constitution, of Canada, 309 
 
 Consideration of, 293 
 
 defined by B. N. A. Act, 15 
 
 different views of, 131 
 
 modelled on that of Great Britain, 2, 10 
 
 on a federal basis, 10 
 
 resulted from agreement of provinces, 15 
 
 of Great Britain, principles of, 12 
 
 unity of powers in, 10 
 
 of United States, 296 
 
INDEX. 387 
 
 COUKTS IN CanAUA — 
 
 Compared with British and U. S. courts, 25 
 
 Decide in cases of conflicting laws, 177 
 
 decide on constitutionality of statutes, 11 
 
 interpret legislation, 177 
 
 jurisdiction of county courts, 199 
 
 of appeal, 197 
 
 powers of, 25 
 
 Provincial, the, 196 
 Coroners — 
 
 Duties of, 218 
 
 inquests held by, 220 
 Criminal — 
 
 informations, 207 
 
 Law of England introduced into Canada, 206 
 
 matters, procedure in, regulated by Dominion, 207 
 Crown, The — 
 
 Bepresented in Canada by Governor- General, 17 
 
 Powers and duties of, 17 
 
 Refuses or grants assent to bills, 19 
 Crown Attorneys — 
 
 Appointment and duties of, 222 
 Cdrkenoy of Canada, 72 
 Customs (See department of) 
 Commissioner of, 83 
 
 D 
 
 Debts of Provinces assumed by Dominion, 116 
 Denizens, position and rights of, 227 
 Departmental administration at Ottawa, 67 
 Department of Agriculture, 74 
 
 Customs, 83 
 
 Finance, 70 
 
 Inland Revenue, 84 
 
 Justice, 69 
 
 Marine and Fisheries, 78 
 
 Militia and Defence, 79 
 
 Public Printing and Stationery, 93 
 
 Public Works, 91 
 
 The Interior, 85 
 
 The Post Office, 88 
 
 Railways and Canals, 90 
 
 Secretary of State, 70 
 
 Trade and Commerce, 94 
 
 DirrERENCES between Senate and Commons, 18 
 DiEFicuLTiES of divided legislative powers, 106 
 Disputes between Senate and Commons, how adjusted, 47 
 
 o's.G.c. 23 
 
338 INDEX. 
 
 Dis-U/LOWANCE, the power of, 129 
 
 of provincial legislation, extent of, 145 
 
 Mr. Lash on, 145 
 
 Division of legislative powers in Canada, 22 
 Dominion, powers of, not limited, 20 
 
 Mr. Blake on, 24 
 
 Ebuoation — ■ 
 
 Under provincial control, 103 
 Department and minister of, 162 
 
 Elections, provisions in regard to bribery at, 55 
 
 England, first possessions of, in America, 249 
 
 Political history of, before Quebec Act, 266 
 proclamation dividing territories of, in America, 263 
 
 Escheated lands belong to provinces, 137 
 
 Excise, 84 
 
 ExOHEQUEE Court — 
 
 Constitution and jurisdiction of, 193 
 
 Executive Adthohity — 
 
 In the provinces, 9 
 
 must be divided in a federal union, 8 
 
 vested in sovereign by agreement, 2 
 
 Exteadition — 
 
 When allowed, 211 
 
 Pedebal Union — 
 
 Mr. Freeman on a, 8 
 
 meaning of a, 6 
 
 not expressly provided, 4 
 
 Fedebation and monarchy compared, 11 
 
 with monarchic principles, opinions of, 14 
 
 Goveenment, Mr. Blake on British system of, 10 
 Different kinds of, in Canada, 292 
 
 Governoes, powers of, under Constitutional Act, 1791, 32 
 Union Act on powers of, 33 
 
INDEX. 339 
 
 Goveknob-Genebal The, apijoints judges, 28 
 
 appoints Lieutenant-Governors, 20 
 
 appoints Speaker of Senate, 27 
 
 death of, does not dissolve Parliament, 27 
 
 duties <;f , generally, 38 
 
 Duke o I Newcastle on duties of, 39 
 
 has only a negative voice in Legislation, 37 
 
 may appoint deputies, 26 
 
 may dif ;i,llow Provincial Acts, 30 
 
 may grunt, refuse, or reserve Queen's assent to bills, 28 
 
 powers of, generally, 29 
 
 over provinces, 29 
 
 statutory, 31 
 
 acts referring to, 31 
 represents the Grown in Canada, 26 
 summons senators, 27 
 summons and may dissolve commons, 28 
 Todd, Mr. on, 38 
 
 vested with powers of late governors, 4, 16 
 when alone under our constitution, 37 
 
 H 
 
 Habeas Corpus introduced into Canada, 275 
 Heir and devisee commissions, 150 
 High Commissioner of Canada, 95 
 Hudson Bay Territory bought, 119 
 
 I 
 
 Incorporation of towns, etc., 241 
 Indian affairs, 77, 78 
 
 lands under Dominion control, 118 
 
 Industrial schools, 163 
 
 Inland revenue, (See department of) 
 
 Interior, (See department of) 
 
 Introduction to part II, 245 
 
 Judicature — 
 
 Powers and duties of, in a federation, 11 
 
 powers of, in England, 13 
 
 liosition and powers of, in Canada, 177 
 
 Judicial powers in United States, 182 
 Canada, 183 
 
 Juries, powers and duties of, 208 
 Jurisdiction of different courts, 197 
 
 Concurrent, of Dominion and Provinces, 75, 101 
 
 Of magistrates, 199 
 
340 INDEX. 
 
 JusTicii, (See department of) 
 
 JnSTICJ'.S OF THE PeACE 
 
 Appointment of, 212 
 position and office of, 21,S 
 Jurisdiction and duties of, 214 
 
 K 
 
 Keewatin — 
 
 Description of, 174 
 administration in, 175 
 
 Lands escheating to crown belong to the provinces, 105 
 
 Of Dominion, management of, 85 
 
 office, the Dominion, 87 
 Law Society of "Upper Canada, 202 
 Laws, different sources of, 177 
 
 of England, introduction of, into Canada, 179 
 Leoislative powers imperfectly defined in the Constitution, 176 
 Legislatubes of provinces, how composed, 143 
 
 Procedure in 144 
 Letters, privilege of carrying, 89 
 Libel, actions for, 239 
 
 LlEDTENANT-GoVERNOK — 
 
 Appointed by the Governor-General, 141 
 
 essential to provincial legislatures, 141 
 
 held incapable of creating Queen's counsel, 35 
 
 giving Queen's sanction to legislation, 135 
 powers of, in Ontario and Quebec, 140 
 supplied by Dominion, 140 
 the head of the provincial legislature, 23 
 C. J. Ritchie on, 137 
 Earl Kimberley on, 142 
 Mr. Justice Gwynne on, 142 
 Sir John A. Macdonald on, 141 
 
 M 
 
 Maoadlat on parliamentary government, 12 
 Manitoba, made a province, 170 
 
 legislature of, 171 
 Marine and fisheries (See department of) 
 Maritime court of Ontario, jurisdiction etc., of, 194 
 Maseres, Attorney-General, draft act of, 268 
 Militia and Defence (See department of) 
 Militia, how classified, 80 
 
 persons exempt from service in, 81 
 
INDEX. 341 
 
 MiNisTKEs, (See departments) — 
 
 Salaries of, 68 
 
 powers of investigation of, 67 
 Ministry, always responsible, 64 
 
 Carry on the work of government, 19 
 Mounted Police, the N. W., 77 
 Municipalities and municipal corporations, 242 
 
 N 
 
 Northwest Territories admitted into Dominion, 119 
 
 Administration in, 173 
 Notary Public, office and duties of a, 204 
 
 Nova Scotia and New Brunswick, remained as before Confederation, 128 
 
 Legislatures of, 168 
 
 o 
 
 Oath of allegiance, 226 
 
 residence, 225 
 Officers of the law, 202 
 Ontario, assembly of, 147 
 
 Clauses of B. N. A. Act concerning, 128 
 
 Executive council of, 150 
 
 Legislature of, 139, 147 
 
 Lieutenant-Governor of, 147 
 
 procedure in assembly of, 149 
 
 qualifications of members in, 148 
 Ontario drainage Act, 161 
 
 fisheries Act, 159 
 
 Municipalities' fund, 155 
 Ownership of mail matter. 89 
 
 Parliament — 
 
 General powers of, 112 
 
 powers of, not restricted in Great Britain, 13 
 
 Parliament of Canada — 
 
 Can establish new provinces, 113, 170 
 
 committees of, 122 
 
 dissolution of, 125 
 
 established by B. N. A. Act, 15 
 
 functions of, mainly legislative, 20 
 
 how constituted, 16 
 
 powers of, 96 
 
 powers of, C. J. Draper on, 98 
 
 peooedure in, 120 
 
 prorogation of, 125 
 
 sessions of, 120 
 
 subjects for legislation of, 99 
 
 summoning of, 120 
 
342 INDEX. 
 
 Patents of invention, 76 
 Petitions to Parliament, 238 
 Police Magistrate, powers of, 217 
 Postmisteh-Geneeal, office of, 88 
 Post Office (See department of) 
 
 "General Post Union," 89 
 Powers of Legislation — 
 
 Canadian division of, compared with American, 108 
 
 how distributed in Canada, 109 
 
 Mr Dicey, on distribution of. 111 
 
 Precedence, table of, in Canada, 229 
 
 Prbbogatives of Ceown — how vested in governors, 35 
 Chalmer on, 36 
 
 Peess, liberty of the, etc., 239 
 
 Prince Edward Island, legislature of, 172 
 
 Printer, the Queen's, 134 
 
 Peivy Council the, advises crown, 61 
 
 carries on administrative government, 68 
 
 compared with executive of United States, 66 
 
 constitution of, 59 
 
 has no judicial functions, 62 
 
 judicial committee of, in England, 184 
 
 peculiar to English form of government, 65 
 
 qualifications of members of, 61 
 
 relation of, to the executive and legislature, 63 
 
 Pkooeddre in trials, 200 
 Provinces, the— 
 
 Compared with States of American Union, 127 
 
 constitution of, 22 
 
 constitutions of, imperfectly defined, 126 
 
 executives of , 128 
 
 executive power in, 22 
 
 intentions of, in forming a union, 1 
 
 Legislatures of, may be dissolved on demise of the crown, 34 
 
 position of, 133 
 
 powers common to all the, 128 
 
 powers of, enumerated 
 
 C. J. Eitohie on, 
 sovereignty of, C. J. Hagarty on, 98 
 statutory description of, 127 
 sums paid by Dominion to, 116 
 
 Provincial legislatures, Mr. Justice Gwynne on. 135 
 
 Public meetings, how called, etc., 239 
 
 Public printing and stationery, (see department of) 
 
 Public Works, (see department of) 
 
 Department of, in Ontario, 159 
 
 list of, belonging to Canada, 115 
 
 property required for, vested in the crown, 93 
 
INDEX. 343 
 
 Q 
 
 Quebec^ 
 
 Bar of the province of. 203 
 
 clauses of B. N. A. Act regarding, 128 
 
 composition of legislature of, 165 
 
 judges of, 167 
 
 legislative assembly of, 166 
 
 council of, 165 
 legislature of, 139 
 Lieutenant-Governor of, 167 
 
 Quebec Act, materials for, 268 
 provisions of, 269 
 
 R 
 
 Railways and canals, (See department of) 
 
 Reoistbar-Genebal, (See Secretary of State) 
 
 Religious liberty, a recognized principle of law, 243 
 
 Repoets of ministers, 67 
 
 Representation in parliament, 232 
 
 Riot Act, The, 237 
 
 Royal instructions to governors, Mr. Blake and Earl Carnarvon on, 36 
 
 Rupert's Land (See N. W. Territories) 
 
 Admission of, to Dominion, 119 
 
 Seoeetaky and Registrar of Ontario, 153- 
 Secretary of State, (See department of) 
 Senate The, addition of members to, 47 
 
 Compared with House of Lords, 17 
 
 constitution of, 40 
 
 functions and powers of, 45, 47 
 
 Goldwin Smith on, 48 
 
 Mr. Freeman on, 49 
 
 object of, 18 
 
 reasons for, 47 
 
 vacancies in, 42 
 
 why nominated, 49 
 
 Senators, how first appointed, 42 
 
 may be members of ministry, 43 
 privileges and immunities of, 45 
 qualifications of, 41 
 title and precedence of, 43 
 
 Sheriees, appointment and office of, 43 
 Solicitors, 203 
 
344 INDEX. 
 
 Sovereign of Great Britain the flrgt element of Canadian parliament, 26 
 Sovereignty, Daniel Webster on, 9 
 
 Division of, in Canada, 9, 20 
 
 American union, 21 
 
 In United States, 97 
 
 Mr. Jenkins on, 9 
 Sovereignties, provincial and Dominion, 96 
 Speaker of Commons, 55 
 
 Senate, 44 
 Statistics of Minister of Agriculture, 76 
 Subjects, definitions of, 223 
 
 for Dominion legislation, grouping of, li'4 
 provincial " " " 105 
 
 Supreme Court of Canada, jurisdiction of, etc, 185 
 
 practice and procedure of, 188 
 
 Territories, the, powers of parliament over, 113 
 
 Titles under confederation, 228 
 
 Trade and commerce (see departhient of) 
 
 Treasurer of Ontario, department and duties of, 154 
 
 Treaties affecting Canada, 252 
 
 Treaty or Paris — 
 
 Freedom of worship guaranteed to Catholics by, 261 
 
 Union the, act of, 286 
 
 U 
 
 V 
 
 Veto, how exerciseable, 127 
 
 VoTs, persons entitled to, at Dominion elections, 54 
 persons entitled to, at Ontario elections, 234 
 persons not entitled to, at Ontario elections, 235 
 
 W 
 Writ of execution, 201