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ically, of those 'common law' powers of the executive known as "the prerogatives of the Crown." But, at the time of which we write, the government of Great Britain was, to an extent very much larger than at present, carried on by the exercise of these prerogatives-that is to say, was largely an executive government-and of no department was this more true than of the colonial, 'the Board of Trade and Plantations." The very facts to which we have alluded that for very many years after the settlement of Nova Scotia (practically until the B. N. A. Act), no legislative interference by the Imperial parliament, in the government of the Maritime Provinces, took place—that provinces were enlarged, divided, joined, all without Act of parliament-and that, without Act of parliament, representative assemblies were established therein-make manifest the extent to which the government of the early provinces was in the nature of executive government, by prerogative. And yet not entirely so, for in the celebrated case of Campbell v. Hall (1) involving a consideration of the proclamation of 1763 (in its relation to Grenada), it was decided by Lord Mansfield, that, although on the acquisition of new territory by conquest or cession, the Crown, without parliament, may make laws for the government of the conquered or ceded territory (m), nevertheless, on the grant to the inhabitants of the right to make laws in and by a representative assembly, the prerogative right of the Crown to make laws in respect of the internal government of the colony is forever gone, and that, thereafter, the Crown stands in the same relation to the representative assembly of the colony as in England to the Imperial parliament; and any withdrawal of the colony's right to make laws can only be effected by the Imperial parliament (n).
(7) Cowp. 204.
(m) This was one of the prerogatives annexed to the Crown as commander-in-chief-a right arising by conquest.
(n) See post, Chap. VI., In re Lord Bishop of Natal, 3 Moo. P. C. (N.S.) 148.
So far, however, as related to the executive functions. of government-the administration of public affairs, the execution of the laws of the colonies (whether imposed by imperial or colonial legislative authority), the collection and expenditure of the public revenues, and the appointment. and control of the executive officials necessary to these ends the theoretical independence of the executive, which, as we have shown, obtained in England, was carried to its practical result in the work of government in the colonies. Theoretically and, indeed, legally, the executive head of the nation, by virtue of its position as a constituent branch of parliament, could prevent encroachment by the legislature upon the prerogatives of the Crown-that is, upon the executive department of government-but the financial necessities of the executive in England, gradually led, as we have before observed, to the surrender to parliament, or at least to parliamentary control, of the entire executive government of the nation. The Crown occupied, in the colonies, the same position as a constituent branch of the legislature of a colony, but the financial necessities of the executive government were, in these early days of our colonial history, so largely met by the revenues arising from the sale of the Crown lands, fines, tolls, and other royalties of various sorts, and, for the balance, provided for in the Imperial budget, that the executive of a colony was to a large degree independent of the colonial assembly.
That the early "assemblys" of the provinces were intended to be confined to purely legislative work, and that, in the doing of it, they were not to interfere in the executive government of the colony, is apparent when we come to study somewhat more closely the commissions of the early governors-which were in truth the charters of government in those provinces.
There is no essential difference in the terms of the commissions to Governor Cornwallis (Nova Scotia), Governor Patterson (Prince Edward Island), Governor Carleton (New
Brunswick), and Governor Murray (Quebec); and we therefore take for comment the first commission which conveyed authority to summon an assembly in the provinces now forming part of the Dominion-that to Governor Cornwallis (6), of Nova Scotia. "For the better administration of justice, and the management of the public affairs of our said province," the governor was authorized to appoint such fitting and discreet persons as you shall either find there, or carry along with you, not exceeding the number of twelve, to be of our council in our said province. As also to nominate and appoint, by warrant under your hand and seal, all such other officers and ministers as you shall judge proper and necessary for our service, and the good of the people whom we shall settle in our said province until our further will and pleasure shall be known." Subsequent appointments to fill vacancies in the council were to be made by the authorities in England. With the advice and consent of this council, the governor was empowered to establish courts of justice, and to appoint all the necessary ministerial and judicial officers in connection therewith. The public revenue was to be disbursed by the governor's warrant, issued by and with the advice of the council, with this limitation, however, that it was to be disposed of by the governor "for the support of the government, and not otherwise." It is hardly to be wondered at, having in view the mode of appointment, and of filling vacancies in this council, that the executive government of those days came to be designated by the familiar phrasethe family compact."
Turning now, to the part played in government by the assemblies, and referring again to the commission to Governor Cornwallis, we find him commanded to govern the colony according to his commission, the instructions therewith, or to be thereafter given (from England, of course), "and according to such reasonable laws and statutes as
(0) Houston, Const. Documents, p. 9.
hereafter shall be made or agreed upon by you, with the advice and consent of our council and the assembly of our said provinces."
The legislative power of the governor and assembly, is in terms ample: "To make, constitute, and ordain laws for the publick peace, welfare and good government of our said province and for the benefit of us, our heirs, and successors; which said laws are not to be repugnant but, as near as may be, agreeable to the laws. and statutes of this our Kingdom of Great Britain." All such laws, however, were subject to disallowance by the Imperial authorities, with no limitation as to the time within which such disallowance should take place.
We shall have occasion to refer to the position of the Crown as a constituent branch of the Imperial parliament and of colonial assemblies, but the clause providing for this, in the commission now under examination, is noteworthy for the frank and undisguised fashion in which it discloses the reason. This clause is as follows:
"And to the end that nothing may be passed or done by our said council or assembly to the prejudice of us, our heirs and successors, we will and ordain that you, the said Edward Cornwallis, shall have and enjoy a negative voice in the making and passing of all laws, statutes, and ordinances, as aforesaid."
The importance of the concession to the early provinces, of the right to frame the laws by which, in local matters, they were to be governed, must not be under-rated. If it cannot be considered as in any fair sense a concession of the right of self-government, it must at least be admitted that it fell short, only because of the theory which then obtained, of the independence of the two departments of government, and because of the inability of the legislative bodies in the colonies to withhold supplies until grievances in the executive department were remedied.
We now proceed to Quebec, in order to examine the changes in the form of government, introduced there by
Imperial statutes. For eleven years after the Treaty of Paris, the commission to Governor Murray and his successors (read with the proclamation of 1763), was the charter of government; but, as we have already noticed, no assembly ever met in that province, and any legislation which was considered necessary was passed by the governor and his council. Owing to the discontent of the inhabitants, then largely French, at the introduction (which was claimed to have taken place) of English civil law, and owing perhaps to a doubt of the legality of the ordinances of the governor and his council, "The Quebec Act, 1774" (p), was passed by the Imperial parliament. Of this statute, it is necessary to make here only this note, that it revoked the right to a representative assembly, and lodged both departments of government, legislative and executive, in the hands of the governor and his council; with this provision, however, that the members of the council were to be appointed from the inhabitants of the province. A perusal of the Act discloses much milder checks on the legislative power than in the case of the earlier commissions;-no doubt because of the union of the legislative and executive powers of government in the same hands (q).
By "The Constitutional Act, 1791"-the province of Quebec having been divided by royal proclamation (or rather, the king having signified "his Royal intention to divide his province of Quebec into two separate provinces") -provision was made for the establishment, in each of the two provinces, Upper and Lower Canada, of a legislative council and assembly. Beyond giving the assembly so created, the right to legislate as to time, place and manner
(p) 14 Geo. III. c. 83.
(q) By the 13th sec. the Governor and his council were expressly prohibited from "laying" taxes or duties within the province, with the exception of local assessments for municipal purposes. By an Act of the same session (cap. 88) provision was made for raising a revenue by means of duties on rum, spirits, and molasses, to be disbursed by imperial officers. See the Act; Houston, Const. Doc. p. 97.