CHAPTER III.

WHAT BECAME OF THE PRE-CONFEDERATION CONSTITUTIONS?

As justification for the last chapter, it was asserted that in order to establish the Dominion government, and the federal scheme of the B. N. A. Act, the slate had not been cleaned; and we shall endeavor to make good that justification.

In comparing the British and United States systems of government, the really federal character of the formerviewed as an Imperial constitution-was pointed out; but the gradual working out of the federal idea in the Imperial constitution (through continuous concessions of powers of self-government to the colonies) was contrasted with the studied action of the Fathers of the American Union, in taking this federal idea as the starting point of their departure (@). The reason is apparent. Thirteen selfgoverning communities occupied one compact. territory: their inhabitants were of common origin, and had common interests; and they deliberately set to work to establish a "national" government, charged with the control of those matters which were deemed of common interest, but, just as deliberately, they insisted upon preserving their right to regulate their local concerns in their local assemblies. And so in relation to the enactment of the B. N. A. Act :-there

(a) See ante, Chap. I., p. 5, et seq.

was the same fact of pre-existing governments, the same desire for united action on matters of common concern, and the same deliberate refusal (based on the same desire to preserve local autonomy) to establish a legislative union, or what has been styled a " unitarian" unitarian" system.

Opinions may very reasonably vary at different periods as to where the line should be drawn which is to divide matters of common or "national," from matters of "local" concern; and this variation in opinion is manifest in the assignment to our Dominion government of several subject matters, which, under the scheme of division adopted by the convention of 1787, were not assigned to their national government-for example, criminal law, and the law of "marriage and divorce" (b). When the idea of a Canadian Confederation began to take practical shape, the United States was in the throes of its civil war, and the notion was prevalent that that war had been caused by the weakness of the "national" government, arising from including among "state rights" the "residuum of power," as it has been termed. That the war was not caused by any such defect in the division of the field of governmental action was then pointed out (c), and has been since fully demonstrated; but the prevalence here of that notion led the fathers of confederation to desire a strong central government, and to that end the "residuum of power" is, under the B. N. A. Act, with the Dominion government (7). This fact has been much utilized in argument, to belittle the sphere of authority of the Provincial governments, and because, as it is put, these latter are governments possessing only" enumerated powers,"

(b) That the assignment of these (as matters of common concern requiring uniformity of treatment) to the "national government is more consonant with modern ideas, is apparent from the numerous expressions of opinion from across the line, in favor of an amendment of the U. S. constitution in these particulars.

(c) See the speech of Mr. C. Dunkin-Confed. Deb., (d) See sec. 91.

p. 491.

the argument is pushed to this length, that the constitutions. of the pre-Confederation provinces were, by the B. N. A. Act, completely wiped out, and that the powers, both legislative and executive, of the post-Federation provinces -and without regard to any necessary connection between these two departments of government—are such only as are to be found expressly set out in the B. N. A. Act. If that is the result of the enactment, never did legislation fail more egregiously in carrying out of the design of its. promoters. The Quebec Resolutions convey no hint that the negotiating provinces desired more than to establish a "federal" union on terms which would be just to the provinces, and leave their autonomy, as to matters local, unimpaired. But these Resolutions, if proper to be referred to at all, can perhaps be cited to aid only in the construction of doubtful or ambiguous phraseology in the B. N. A. Act (e), and, therefore, the terms of the Act itself must be looked at carefully on this point. But, first, it is necessary to advert to the inaccuracy of the phrase, "residuum of power." As has already been pointed out, there is not, under a federal system, any necessary division of power, in the proper sense of the term; the essential division which exists, being a division of the subjects proper for governmental regulation, into two classes of mattersmatters of "national," and matters of "local" concern. Just what matters belong to the one class, and what to the other, is a question upon which, as we have said, opinion may vary, but whether the matters of "national" concern are enumerated, and the residuum left as of "local" concern (as by the U. S. constitution), or the matters of "local" concern enumerated, and the residuum left as of "national" concern (as is partially the case with us), is matter of indifference, so long as the enumerated class is sufficiently comprehensive to satisfy public opinion, at the time, as to the proper line of division. But what is essen

(e) See post, Chap. X.

tial, is, that to the full limits of the matters entrusted to each government, national or local, the power of governmental action should be full and complete. It will be noticed, of course, that the division effected by the B. N. A. Act is a division of matters for legislative action, but this must involve a division along the same line for executive action. Any other arrangement would be a clear departure from that principle of the British constitution, upon which we have dwelt at some length in earlier pages-the supremacy of the maker of a law over the executor of that lawa principle which is dominant in every Anglo-Saxon community, unless, indeed, Canada is now, as is claimed, the exception.

That principle, as we have pointed out, clearly obtained in the pre-Confederation provinces as the result of the long struggle for "responsible government," and it is important therefore to ascertain whether, under the B. N. A, Act, the provincial constitutions continue; for if so, then the same connection between the legislature and the executive, which existed before confederation, must still continue. with respect to the subjects of provincial cognizance.

Any complication which may exist in connection with this question has arisen from what has been termed "the necessities of the draftsman.” One cause of the support given in the two parts of (old) Canada, to the scheme propounded by the Quebec Resolutions, was that it made provision for the severing of the tie of legislative union between them; and the carrying out, in one Act of parliament, of this design and the larger federal scheme, necessitated first the severance of that tie, and then the creation by the Act of a federal union between the four provinces. But, while on the one hand this necessity, and the mode of meeting it, adopted in the Act, has provided a small peg on which to hang an argument adverse to the provinces (ƒ),

(f) As a matter of construction, it would appear that secs. 5, 6 and 7, point merely to the territorial limits to be assigned to the different provinces of the Confederation.

it has also provided several others, upon which a very strong argument may be heaped, in support of the full autonomy of the provinces in relation to the subjects allotted to them. Old Canada being thus divided into its original divisions, with new names,-it became necessary to make provision for the establishment of new governmental machinery, legislative and executive, in Ontario and Quebec. Eliminate from the Act all clauses inserted to this end; consider Ontario and Quebec as having had governmental machinery such as existed in the Maritime Provinces; and the Act would clearly appear as an Act for the establishment of federal machinery only, for drawing the line of division between matters proper for the consideration of the "general" government, and those proper for the consideration of the "local" governments, and for the making over to the federal government of certain portions of the assets and revenue-producing powers of the provinces. The very use of the term federal in connection with the creation of a central government for territory occupied by previously existing governments, mutually independent, would seem to imply the continued existence of the individual governments, parties to the fed us; and the fact that no provisions were made for Nova Scotia and New Brunswick, similar to those made for Ontario and Quebec, would appear to point to the conclusion that the governmental machinery of those provinces was to continue as before, employed, of course, upon a somewhat smaller range of matters.

The type of governmental organization in the preConfederation provinces was one and the same—a single executive head (assisted by an executive council), and a legislature (g)—and the principle upon which the whole worked in the actual government of the provinces was the principle of executive responsibility to the electorate

(9) The existence or non-existence of a second chamber is in no way material.