through the legislature. The B. N. A. Act makes provision, as to all the provinces, for a single executive head in each, but judging from the absence of any provision for the appointment of the Governor-General, it may be doubted if such provision would have been expressly made in regard to the Lieut.-Governors, had it not been intended to alter the mode of appointment, so as to make each provincial executive head, a link in the chain of federal connection (h). As to the "powers, authorities, and functions" of that executive head, they are particularly mentioned only as to Ontario and Quebec (i), and as to those two provinces only so far as they were dependent for their existence upon statutes, either of the Imperial parliament or the parliaments of (Old) Canada. This latter limitation has been urged as supporting the view that certain of the "powers, authorities, and functions"-those depending for their efficacy upon the common law-exercisable by the Governors (or Lieutenant-Governors) of the pre-Confederation provinces, are now, even as to matters within the legislative authority of Ontario and Quebec, exercisable only by the Governor-General.

We shall deal with this contention in a moment, merely remarking now that such a construction of the Act, would create diversity in the position of the different provinces, and would be a departure from the principle insisted on, as apparent throughout the British constitution-the co-extensive and complementary sphere in government, of the executive and legislative departments. The matter material to be now noted is, that these statatory powers had been conferred upon the holder of a particular office which was now to be divided, and therefore a statutory re-allotment, so to speak, had to be made. The language of the section to which we are now referring (sec. 65), and of what may be called its companion section (sec. 12), bears out, too, our

(h) Compare secs. 10 and 58, B. N. A. Act, 1867.

(i) B. N. A. Act, sec. 65.

criticism of the phrase, "division of power," inasmuch as both sections carefully avoid using any such term as "division." Treating the "powers, authorities, and functions" conferred by previous legislation as a sum total, they carefully provide that all these powers, etc., so far as they are capable of being exercised after the union, in relation to the government of the Dominion and the provinces respectively, shall be vested in the Governor-General, or in the Lieutenant-Governors, as the case may require.

To revert now to the argument founded on the limitation of sections 12 and 65 to statutory "powers," etc. We have already indicated "the necessities of the draftsman," as the reason for their insertion in the Act. But for that necessity, they would not have appeared, and we should have to look to some other part of the Act in order to ascertain the position of the executive head of the different provinces, as, indeed, we have to do with reference to Nova Scotia and New Brunswick. If there were no express provision, we should still contend that, as executive head of the province, a Lieutenant-Governor is invested with all the "powers, authorities, and functions" necessary to carry on the government of the province-that wherever provincial legislation requires, in order to its complete and efficient enforcement, the sanction of executive action, all the "powers, authorities, and functions" (prerogative and otherwise) necessary to such enforcement, reside in, and are exerciseable by, the executive head of the provincial government (j). But we are not limited to this application of legal principles, incontestable though they be. Sec. 129 of the B. N. A. Act is clear upon this matter:

"Except as otherwise provided by this Act, all laws in force in Canada, Nova Scotia or New Brunswick, at the Union, and all courts of civil and criminal jurisdiction, and all legal commissions, powers and authorities, and all officers, judicial, administra

(j) See judgment of Burton, J.A., in Atty.-Gen'l (Can.) v. Atty.Gen'l (Ont.). 19 O. A. R. 38.

CAN. CON.-4

tive and ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made, subject nevertheless (except with respect to such as are enacted by, or exist under, Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland), to be repealed, abolished or altered by the Parliament of Canada, or by the legislature of the respective province, according to the authority of the parliament or of that legislature under this Act."

The language of this section is very comprehensive. It continued the whole body of pre-existing laws and legal institutions, "except as otherwise provided by this Act"; and excepting Imperial Acts and institutions existing under Imperial Acts, it divided the entire field of law (in its widest sense) between the Dominion and the provinces, "according to the authority of the parliament or of that legislature under this Act." This body of law would include every branch of jurisprudence-the lex prerogativa as well as the other branches. Combined with sec. 12, it carries the whole executive power incident to the legislative sphere of authority of the Dominion parliament, to the Dominion; and, combined with sec. 65, it has precisely the same result in relation to the government of the provinces (k).

With regard to the executive council in each province -in other words, the Cabinet-we have to point out that no provision is made for such a council in New Brunswick or Nova Scotia, beyond what may be gathered from the express enactment that the constitution of the executive authority in those two provinces, should continue as before the passing of the B. N. A. Act; while, in regard to Ontario and Quebec, the appointment of the first officers who are to constitute the executive council in those provinces is provided for. There is this difference, too, to be remarked between the section of the Act which provides for the

(k) Dobie v. Temporalities Board, L. R. 7 App. Cas. 136; and see notes to B. N. A. Act, secs. 12, 65 and 129, post.

Privy Council of the Dominion (sec. 11) and the corresponding section as to the executive councils of Ontario and Quebec (sec. 63), namely, that the latter seems to take it for granted (if we may use the expression), that there is to be an executive council in those two provinces; while the former distinctly provides that "there shall be" a Privy Council for Canada. It may here be remarked that nowhere in any statute book will be found any Act which lays down that such executive council shall continue to hold office only so long as it commands the confidence of the legislature; but the existence of that "convention of the constitution,” and its raison d'etre, have been already dealt with at sufficient length, and no one, we fancy, would argue that any significance attaches to its absence from the B. N. A. Act.. As put by Lord Russell, in his famous dispatch (1), of September 7th, 1839, conveying to Lord Sydenham his "instructions" as to the government of Upper Canada: "It is evidently impossible to reduce into the form of a positive enactment, a constitutional principle of this nature." But not only is the appointment of the first members of the Cabinet provided for in the case of Ontario and Quebec, but provision is also made as to their "rights, powers, duties, functions, responsibilities or authorities "the draftsman was certainly exhaustive in his phraseology --and what has just been said as to the sections dealing with the powers, authorities and functions of the executive head, is equally applicable to sec. 135, which makes this provision as to the executive officers under him. All the "powers, etc., etc.," which the executive officials named, had in relation to the government of Canada, are to be vested in the officers of the provincial governments, in relation to those governments. There is no division of power, but of sphere of authority only.

Equally significant of the continued existence of the pre-Confederation constitutions, are the clauses of the

(1) Can. Ass. Jour., 1841, pp. 390-6, App. BB.

B. N. A. Act, dealing with the constitution of the legislative authority in the provinces (m). For Ontario and Quebec, legislatures had to be provided. The constitution of those legislatures is, of course, entirely the creation of the B. N. A. Act; but, so far as the creative clauses are concerned, there is nothing to indicate any difference in principle, between the constitution of those legislatures, and the constitution of other colonial legislatures, beyond the absence in the "constitutional" statutes relating to those other colonies, of any division of the sphere of their legislative authority. But for Nova Scotia and New Brunswick no legislatures were created, it being provided (just as had been provided with regard to the executive) that the constitution of the legislature of each of those provinces should continue as it existed at the Union. The House of Assembly of Nova Scotia, as it happened, had been dissolved, so that new provincial elections were necessary, and, in order to save expense, it was provided (n) that such new elections should take place at the same time as the first elections for the House of Commons of the Dominion. But, as to New Brunswick, its House of Assembly was still alive, and it was expressly provided that it should continue (unless sooner dissolved) for the period for which it had been elected. As to both Nova Scotia and New Brunswick, the B. N. A. Act contains no provision for the summoning of their Assemblies, for the length of time they should live, for yearly sessions, or as to the conduct of their business; as to all of which matters, minute provision is made as to the legislatures of Ontario and Quebec (o).

The group of clauses (p) of the Act, dealing with the division of the assets of the provinces, between those provinces and the Dominion, bears throughout marks of the

(m) Secs. 69-93.

(H) B. N. A. Act, sec. 89.

(0) Note, however, sec. 9', s-s. 1, post. (p) Group VIII, secs. 102-126.