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CHAPTER II.

THE PRE-CONFEDERATION CONSTITUTIONS.

To properly appreciate the merits or accurately note the defects of any form of government, it must be studied in its actual present working-examined, so to speak, in motion -and if the B. N. A. Act were the creation of a governmental organism, new in all its parts, we might lack justification for indulging in historical retrospect back of 1867. But, just because the slate was not cleaned, just because many parts of the machinery of government existing in the provinces prior to Confederation were continued in the new plant set up in the various provinces, it will be necessary to examine the earlier constitutions of those provinces. Indeed, it will appear that in at least two of them, New Brunswick and Nova Scotia (c), the governmental machinery was left by the B. N. A. Act almost intact, and new plant was provided only for the Dominion government and the provinces of Ontario and Quebec (b). These reasons, here urged in brief, will develop themselves more at length as we progress in our examination of the scheme of government contained in the B. N. A. Act. To avoid undue repetition, the proof must be somewhat delayed. In any case, a short historial retrospect would probably not be considered out of order.

(a) The same remark applies to British Columbia and Prince Edward Island upon their admission to the Dominion.

(9) And afterwards for Manitoba and the North West Territories.

With the view, then, to determine the nature of the constitution of government in the various provinces of which the Dominion is composed, we proceed to discuss briefly, and so far only as is necessary to a proper appreciation of our present system, the constitutional history of those provinces.

To Nova SCOTIA belongs the distinction of being the oldest of the B. N. A. colonies now forming part of the Dominion. The preamble to one of the earliest Acts (c) of the Nova Scotia Assembly (1759), declares that “this province of Nova Scotia, or Acadie, and the property thereof, did always of right belong to the Crown of England, both by priority of discovery and ancient possession.” The correctness of this declaration, France would probably not admit; but the contest would be of antiquarian interest merely, for by the treaty of Utrecht, in 1713, “Nova Scotia, or Acadie, with its ancient boundaries," was ceded by France to the Crown of England in the most ample terms of renunciation. Nova Scotia, as thus ceded, included the present provinces of Nova Scotia (excluding Cape Breton) and New Brunswick, and also part of Maine. For many years after its acquisition, Nova Scotia was practically under the military rule of a governor and council, whose authority was defined in the governor's commission. In 1749, a colonization scheme was set on foot, and anticipating an influx of settlers into the colony, the commission to Governor Cornwallis, of date 1749, authorized the summoning of “general assemblys of the free-holders and planters within your government, according to the usage of the rest of our colonies and plantations in America.” After much delay, and the exhibition of much unwillingness on the part of the governor and his council to act upon this direction, a scheme of representation was settled, and the first parliament of Nova Scotia met on the second of October, 1758, at Halifax.

(c) 33 Geo. II. c. 3 (N. S.).

In 1763, the remaining portions of what are now known as the Maritime Provinces—Cape Breton and Prince Edward Island—were, by the treaty of Paris, ceded to Great Britain ; and, by the proclamation which followed, were annexed "to our government of Nova Scotia.”

Six years later, PRINCE EDWARD ISLAND was made a separate province, under a governor of its own, whose commission, also, authorized the calling together of “general assemblys of the free-holders and planters, within your government, in such manner as you in your discretion shall judge most proper,” and according to further instructions. The first parliament of Prince Edward Island met in 1773.

In 1784, NEW BRUNSWICK was made a separate province, with a governor of its own; and his commission, too, authorized, in somewhat similar phraseology, the summoning of a general assembly, which shortly thereafter met.

Of CAPE BRETON'S constitutional vicissitudes it is unnecessary to make mention (al). Finally, in 1820, it was re-annexed to the government of Nova Scotia, of which province it has ever since formed, and now forms, part.

So far as the Maritime Provinces (e) are concerned, the legislatures of to-day, in those provinces, are the lineal descendants of those early “general assemblys.” But, as we must show, the sphere of their authority in government, in 1867, when Nova Scotia and New Brunswick (f) became part of the Dominion of Canada, was very different from their sphere of authority in 1758, and for many years thereafter.

QUEBEC—not the present province of that name, but practically the now provinces of Quebec and Ontario—was

(d) They are set out at length in 5 Moo. P. C. 259: In re The Island of Cape Breton.

(e) The documents relating to the early constitutions of the Maritime Provinces are set out in Return No. 70, Can. Sess. Papers, 1883.

(f) And so as to Prince Edward Island in 1873. See post.

ceded to Great Britain by the same treaty of Paris, which secured Cape Breton and Prince Edward Island. The proclamation (9), to which we have already referred, which followed upon the cession, simply annexed Cape Breton and Prince Edward Island to the government of Nova Scotia, but erected Quebec into a new province, and made provision for its government. Both by that proclamation, and by the commission to Governor Murray, the institution of a representative assembly was contemplated, but, for reasons upon which it is unnecessary to enlarge, no such assembly ever met thereunder; and it was not until after the Imperial parliament intervened (for the second time) in the government of the B. N. A. provinces after the passage of what is known as “The Constitutional Act, 1791” (h), dividing Quebec into the two provinces of Upper and Lower Canada, and providing for a separate legislature in each province—that such assemblies met; that of Upper Canada, at Niagara, on the 17th of September, 1792, and that of Lower Canada, at Quebec, a few months later. In 1840, the two provinces of Upper and Lower Canada were, by what is commonly known as "The Union Act" (i), joined together in a legislative union, which lasted until the birth of the Dominion (,).

We must now retrace our steps, in order to take a comprehensive view of the nature of the government which was. established in the various provinces; and, in taking such a. view, it will be, to say the least, convenient to treat of the statutory constitutions of the Upper Provinces separately, and to contine our attention, in the first place, to the constitutions established (in the exercise of the prerogatives of the Crown) by means of the commissions and proclama

(9) See Houston, Constitutional Documents of Canada, p. 67.
(h) 31 Geo. III. c. 31 (Imp).
(i) 3 & 4 Vic. c. 35 (Imp).

(j) We defer consideration of the constitution of British Columbia. and of Manitoba and the North West Territories until a later stage. See. post.

tions, to which we have referred. We may say at once that, along both lines, this survey is undertaken in order to show that, prior to the date of Confederation, the Imperial government had, in a tangible way-evidenced partly by dispatches, partly by instructions, partly by statutory enactments, partly, perhaps, by long disuse of power along certain lines—put upon record their recoynition of the necessary connection which must exist between the legislative and executive departments of government, as well in the case of a colony as in the case of the United Kingdom.

As a preliminary to this survey, it is almost indispensable that we should again refer to what was, in the latter part of the eighteenth and the earlier decades of the nineteenth century, the accepted explanation of that scheme of government known as the “British Constitution.” In those days, the chief commendation bestowed on that constitution was on account of the complete separation, as was supposed, of the legislative and executive powerlegislative supremacy in the parliament, executive supremacy in the Crown. Opportunity for interference by parliament to control and regulate executive action, was largely the result of the financial necessities of the executive head of the nation ; but, to the extent to which the revenues of the Crown rendered that executive head independent of parliament, the government of the nation was frequently carried on without that body being summoned together. How the change was gradually brought about, until now the supremacy of parliament over the executive, is a clearly established principle of the British constitution, it is beyond the scope of this work to trace (k:); but, shortly stated, it would appear to have been effected by the judicious use of the power over the purse strings, in order to secure the consent of the Crown to the relinquishment to parliament of the most important, if not the most numer

(k) See May's Const. Hist, Vol. ii. p. 39.

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