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Law of the Canadian Constitution.



By virtue of a certain Act (a), passed by the Parliament of the United Kingdom, and Her Majesty's proclamation pursuant thereto (b), the Dominion of Canada became "a new thing under the sun" of the first day of July, 1867. The Imperial Act provides for its own citation as “The British North America Act, 1867," but we shall not only save space, but conform also to usage on this side of the Atlantic, by using throughout the shorter title of "The B. N. A. Act" (c). For a quarter of a century our form of political organization has been, under that Act, a “general” government (of which we shall always speak as the "Dominion" government), charged with matters of common interest to the whole country, and "local" governments (to be spoken of as "Provincial" governments), charged with the control of local matters in their respective sections.

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(c) Subsequent amendments are similarly entituled, but whenever it becomes necessary to refer to any one of them, we shall, by way of distinction, add the year.


The sphere of political activity, assigned to each of these two sorts of government, is carefully mapped out in the B. N. A. Act; taken together, they comprise the most extensive field of colonial self-government in the British Empire to-day. The constitution, too, of each of those governments is provided for, either expressly, as in the case of the Dominion government, or by the incorporation into the Act of previously existing constitutions, as in the case of some, at least, of the Provincial governments.

In the preamble to the B. N. A. Act, it is recited that the provinces of Canada, Nova Scotia and New Brunswick, had expressed their desire for a federal union into one Dominion, "with a constitution similar in principle to that of the United Kingdom," and the opinion is ventured that such a union would conduce to the welfare of the provinces, and promote the interests of the British Empire. "Be it therefore enacted," etc.

A clearer indication that the design of the B. N. A. Act was to establish in Canada such a union with such a constitution as was desired by the petitioning provinces, could hardly have been given. The expression of desire to which the Act refers in the recital above quoted, is to be found in the third and fourth of the resolutions passed at the Conference, at Quebec, of delegates from the various provinces :

"III. In framing a Constitution for the General Govern ment, 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.

"IV. 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 representative of the Sovereign, duly authorized."

It should, perhaps, be noticed that these resolutions make reference to the constitution of the "general" government only, and the preamble to the B. N. A. Act is capable of a similarly limited interpretation. The observation applies, too, to the additional recital in the preamble, that "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." A perusal of the next chapter, however, and of what is there said in reference to the survival of the pre-Confederation provinces, the continuity (so to speak) of their legislatures and their executive authority,-will, as we proceed, suffice to show that our present argument applies a fortiori to the Provincial Constitutions.

Reverting then to the preamble to the B. N. A. Act, one would naturally expect that the design so clearly announced, would be effectually carried out in the enacting clauses of the Act. There have not been wanting, however, those who have contended that the performance has fallen far short of the promise; that the B. N. A. Act is in its preamble a notable instance of "official mendacity" (d); and that the effect of its enactment has been, the establishment in Canada of a system of government presenting features analagous rather to those of the government of the United States than to those of the British constitution. This view of the Canadian constitution is quite erroneous, founded upon a very superficial observation of the structure of government in this Dominion, and wanting in a proper regard for the underlying principle, in conformity to which

(d) Dicey (Prof. A. V.)-"The Law of the Constitution," 3rd ed., p. 155. As the Professor himself would say, "it is worth noting" that the criticism of this preamble, in which he indulges, is inaccurate. The provinces had expressed their desire for a constitution “ similar in principle," etc., as a perusal of the Resolutions, above quoted, will show, and the preamble therefore is literally true. We waive, however, this verbal criticism of the Professor's statement, and treat it as indicative merely of his view of the effect of the B. N. A. Act.

the pre-Confederation provinces had been governed, and the Dominion and its federated provinces have since been governed, the principle, as we shall endeavor to show, which is the chief distinguishing feature of the British form of government, the Empire over, as contrasted with the constitution of the United States. Because the union of the B. N. A. provinces is federal, indicating, ex necessitate, some sort of a division of the field of governmental action, an allotment of some part of that field to a "central" government, the conclusion is rashly arrived at, that these matters of outward and superficial resemblance between our system of government and that of the neighboring Republic, are sufficient to stamp them as essentially alike. A closer examination of the B. N. A. Act itself, coupled with some slight knowledge of the pre-existing provincial constitutions, and their practical working, would have sufficed to show that, in essentials, we have a constitution not like the constitution of the United States, but "similar in principle to that of the United Kingdom." In this instance, at least, the Imperial parliament has not laid itself open to the reproach addressed in Holy Writ to certain unnatural parents. We in Canada labor under the impression that we have got what we asked for; whether it is, or is not, good for us, is not, perhaps, matter for discussion in a work of this kind.

To arrive at an intelligent conclusion upon this much discussed question-to which form of government, the British or the American, does our government in principle conform ?-one must necessarily first formulate in his own mind some definite notion of the difference in principle between these two systems, with which in turn we desire to compare or contrast ours. It may, perhaps, turn out that a candid comparison will disclose that the difference between them should hardly be characterized as a difference in principle, that in each the same motive power is applied to the same end, with only some difference in the mode of application.

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