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Nova Scotia and New Brunswick.
the Act which make provision therefor, will be found dis cussed in chapter III. ante, p. 46.
(ii) See the judgment of Robinson, C.J., in Doe d. Anderson v. Todd (quoted ante, p. 104) for a statement in reference to the boundaries of (old) Quebec. Provinces of
7. The Provinces of Nova Scotia and New Brunswick shall have the same
limits as at the passing of this Act (i). (i) See foot-note ante, p. 46.
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 (i). (i) “Shall be distinguished.”—In order to a re-adjustment of the representation, in the parliament of Canada, of the respective provinces. See section 51, post, and notes thereto.
III. EXECUTIVE POWER (i).
9. The Executive Government and Queen. authority of and over Canada is hereby
declared to continue and be vested in the
Queen (ii). (i) “Executive power.”—As to the necessary subordination of the executive to the legislative department of government, see ante, p. 12. In reference to the government of Canada as part of the British Empire, the Queen's authority as executive head of that Empire is subordinate to the parliament of the United Kingdom, the supreme Imperial legislative power; and her authority as executive
head of Canada (that is in reference to our self-government) is subordinate to the authority of Canadian parliaments. In other words, in so far as the Imperial parliament has reserved to itself, control over certain subject matters, as being matters of Imperial concern (such reservation being evidenced, either by express or implied limitation upon the powers of the colonial legislature over certain subject matters (f), or by the existence of Imperial legislation upon these matters) (g), the executive authority of the Queen is exercised subject to the control of the Imperial parliainent, i.e., by and with the advice of the executive committee or Cabinet of the Empire; while, on the other hand, in so far as legislative power has been conceded to a colonial legislature, the executive authority of the Queen is exercised, through her representative, subject to the control of the colonial legislature, i.e., by and with the advice of the executive committee or Cabinet, Dominion or Provincial, case may
be. We may here notice one particular subject matter, which for obvious reasons is treated as matter of Imperial concern, and in respect to which, therefore, no legislative power is conceded to Canadian parliaments; the constitution, namely, of the connecting links in the chain of executive government, from the Imperial, through the Dominion, to the Provincial. The executive government of the British Empire is, in truth, in its Imperial, as well as its English aspect, a unit; and for the purpose of securing unity of national purpose and method throughout the Empire, the appointment of the local executive heads is so arranged that the executive department of that government which is possessed of the widest territorial jurisdiction, appoints the executive head of the government next in extent, and exercises executive supervision over its legislation; and so on. We may here note that the Imperial government can also exercise a legislative supervision over colonial legislation; the Dominion government is limited to the exercise (1) See Chap. IX.
(9) See Chap. IV.
of executive supervision—to wit, the power of disallowance -over provincial legislation. Leaving out of consideration, however, the legislative supremacy of the Imperial parliament, what the Judicial Committee has said (k) in reference to the relation between the Dominion and the Provinces, in Canada : “No one of the parts can pass laws for itself except under the control of the whole, acting through the Governor-General :" is equally applicable--substituting the Queen for the Governor-General—to the relation of the colonies generally to the Empire.
Under existing arrangements, the Queen occupies a dual position, being executive head of the Empire and, at the same time, local executive head of the United Kingdom ; but the union, in one legislative body with one executive committee or cabinet, of the power to legislate for the whole Empire as well as specially for one of its territorial divisions, leaves the line of division a purely “conventional” one--in this sense, at least; that the power of the Imperial parliament to alter the position of the line, is. restrained only by the “conventions," and not by the law of the constitution ; but at any given moment of time the line of division is a legal one. See ante, p. 11.
The Governor-General of Canada again occupies a dual position. He is one of the Imperial executive staff as well as executive head of the Dominion. In the former capacity, he is subject to Imperial executive authority, which, as we have said, extends to all those subject matters, which, at any given moment of time, are within the category of matters of Imperial concern, controlled by Imperial legislation, or—from the other point of view-uncontrollable by colonial legislation. In regard to such matters his actions are regulated by instructions, general or specific, received from his official superior at home or by Imperial statutes. In his capacity as executive head of the Dominion, he acts by and with the advice of the Queen's Privy Council for Canada, and is, in the exercise of his executive
(1) Bank of Toronto v. Limbe, 12 App. Cas. at p. 587.
authority in relation to matters within the legislative competence of the Dominion parliament, subject to the control of that body. His position with reference to the Lieutenant-Governors of the several provinces, illustrates the distinction we have been trying to point out. The Dominion parliament cannot provide any method for the appointment. of a Lieutenant-Governor, or for his removal, other than that provided in the B. N. A. Act. It is deemed matter of Imperial concern that there should be a single executive head for each of the provinces; that the Dominion executive committee or cabinet should appoint him; and that, once appointed, he should not be removed except for cause. Any departure from the mode provided in the B. N. A. Act would be illegal and nugatory, and in performance of his duties in this connection, the Governor-General must, as an Imperial officer, follow the Imperial statute, as that statute may be authoritatively interpreted by his official superior in England. As to the mode of appointment, the B. N. A. Act is explicit—the appointment must be by order in council—so that the question, who shall fill the position, is left as a matter of local Canadian concern, to the determination of the Dominion Cabinet; while as to the removal of a Lieutenant-Governor, the B. N. A. Act is equally clear in giving that power to the Governor-General alone. That is to say, the Governor-General cannot, alone, legally appoint, but he can, alone, legally remove for cause. This question is perhaps not of much practical importance, because, in the Letellier case, the Imperial anthorities laid down the “conventional” rule for the guidance of the Governor-General, that he should, in this matter of removal, act by and with the advice of the Dominion cabinet; but should he at any time undertake to act upon his own judgment a Lieutenant-Governor removed would legally cease to be Lieutenant-Governor. The laying down of this conventional rule has certainly very largely increased the power possessed by the Dominion executive to interfere in the affairs of the provinces; but it was necessary, per
haps, to the logical uniformity of the federal scheme. It is perhaps more consonant with British notions to have the real power coupled with real responsibility to the whole electorate of the Dominion, in whose interests presumably the power will be exercised in any given case. A political cynic may perhaps think not mal a propos the remark of Mr. Bumble when informed that a husband is, in law, presumed to control his wife: “If the law presumes anything of the sort, the law 's a fool—a natural fool.” It is indeed a serious question whether it would not be conducive to the impartiality of the provincial executive heads to make them entirely independent of Dominion executive authority; or whether any gain along this line would not be more than counterbalanced by the loss of one item of colonial self-government. See notes to section 58, post.
(ii) “In the Queen."— This section is declaratory merely, and was inserted simply by way of abundant caution, for, according to Chitty, “the king of England is not only the chief, but properly the sole magistrate of the nation, all others acting by commission from, and in due subordination to him " (hl). In an earlier chapter we have treated at some length of the prerogatives of the Crown in their relation to colonial government,—see chapter VI.; and we have endeavored to emphasize this legal principle that these prerogatives of the Crown are nothing more than powers vested by the common law of England in the executive head of the nation in aid of the execution of the laws of the realm, and that, by Act of parliament, these prerogative rights may be, and in a great many instances have been modified-turned into statutory powers-or entirely withdrawn. The question has been mooted, although perhaps not of such practical importance, whether Her Majesty could, in person, carry on the government of Canada, or of one of the provinces; it is submitted that
(hh) See the judgment of the P. C. in Liquidators of the Maritime Bank v. Receiver-General of New Brunswick, as yet reported only in Times L. R., Vol. VIII. p. 677.