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In (old) Canada the form of government was prescribed by the Act of Union.10 But as to all the provinces it can be truly said that their constitutions were modelled on the pattern of the parent state. In outward form there is a close resemblance between the British constitution and the constitution of those provinces-the same single executive, the same legislative machinery (even to a second chamber), with about the same apparent connection between the two departments of government. And upon inquiry further it is found that just as in the case of the Imperial parliament, so here in the case of the pre-Confederation provinces, one will look in vain for any statute laying down the rules which should govern in the matter of the formation, the continuance in office, or the retirement of the Cabinet. The "conventions of the constitution" had in the parent land gradually culminated in the full recognition of the principle of executive responsibility to parliament, and this principle was by the simple method of instructions to the governors introduced as the working principle of the provincial constitutions.1

Of the causes which led to the adoption by the provinces of the Quebec Resolutions, upon which the B. N. A. Act is founded, it is for the historian to treat. In agreeing to the establishment of a "general" government, charged with matters of common concern, the provinces resolved that such general government should be modelled, as were their own governments, on that of the United Kingdom, and that its executive authority should be administered according to the well-understood principles of the British constitution. It may, therefore, be unhesitatingly affirmed of both the Dominion and the provincial governments that "That great body of unwritten conventions, usages, and understandings, which have in the course of time grown up in the practical working of the English constitution, form as important a part of the political system of Canada as the fundamental law itself which governs the federation."2

10 3 & 4 Vic. c. 35 (Imp.).

1 Extracts from the despatches from the Col. Secy. to Lord Sydenham are given in the author's "Hist. of Canada," at p. 248. See also post, p. 99.

2 Bourinot "Maple Leaves," p. 37; see note ante, p. 12.

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CHAPTER II.

A COMPARATIVE EXAMINATION.

The preamble to the B. N. A. Act recites that the provinces of Canada, Nova Scotia and New Brunswick, had expressed their desire1 for a federal union into one Dominion with a constitution similar in principle to that of the United Kingdom," and 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;" and that its effect has been to establish in Canada a system of government presenting features analogous rather to those of the United States than to those of the United Kingdom. This view of the Canadian constitution is quite erroneous and wanting in a proper regard for the underlying principle in conformity to which the pre-Confederation provinces had been governed and the Dominion and its federated provinces have since been governed,-the principle of executive responsibility to the people through parliament, which is the chief distinguishing feature of the British form of government, the Empire over, as contrasted with that 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 and an allotment of some part of that field to a central government, the conclusion is rashly reached that these matters of outward and superficial resemblance between the Canadian 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,

In the Quebec Resolutions; see Appendix A.

2 Dicey (Prof. A. V.)-" The Law of Constitution," 3rd ed., p. 155. Modified in later editions to "diplomatic inaccuracy." See the criticism of this passage by Burton, J.A., in the Pardoning Power Case, 19 O. A. R. at p. 39.

coupled with some slight knowledge of the pre-existing provincial constitutions and their practical working, would have sufficed to show that, in essentials, the constitution of Canada is not like the constitution of the United States, but is in very truth" similar in principle to that of the United Kingdom."

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. 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 some difference only in the mode of application.

The British Empire and the American Union consist, each of a central or "national" government with subordinate "local" governments. In the case of the United States, the central or Federal government has always received treatment as a tangible "national" government over one compact territory; but the British constitution has, as a rule, been looked at as the constitution of Great Britain rather than as an

Imperial constitution. The reason is partly geographical, partly historical. The Imperial constitution, as it to-day exists, is the result of the gradual application to the government of an expanding empire of those principles of local selfgovernment which were adopted, at the start, as the basis of the federal union of the American colonies. That which by revolution and a formal written convention they accomplished has been brought to pass throughout the British Empire by peaceful evolution and unwritten conventions. The true federal idea is clearly manifest, to reconcile national unity with the right of local self-government; the very same idea that is stamped on the written constitution of the United States. The difference of position historically is quite sufficient to account for the difference of position legally. Given the independent self-governing communities which made up the American Commonwealth, the 66 national" government

CAN. CON.-2

was super-imposed to secure unity, but upon conditions preservative of local autonomy. With us, on the other hand, the central government stands historically first, but the various communities which grew out of it have now as full a measure of local self-government as is enjoyed by the individual States which together form the neighboring Republic. The sum total of conceded power at any given period will be found to be commensurate with the opinion prevalent at such period as to the proper line of division between Imperial and local

concerns.

Under both the British and the United States systems the courts charged with the enforcement of law must decline to recognize the validity of any act, legislative or executive, done by any person or body of persons, beyond the limits to which they are legally subject. The enforcement by the courts, colonial and British, of the legal limitations upon colonial legislative power is matter of legal notoriety, and there is a no less rigorous enforcement of the legal limits set to interference, otherwise than by Imperial legislation, with colonial rights of self-government.*

The difference in principle between the British and the American systems of government is not in respect of the federal idea-that is common to both; nor in respect of the rule of law, the enforcement by the courts of the law of the constitution-that, too, is common ground. But in the machinery of government a difference runs through the "national " and "local" governments alike of these two systems. The difference in principle is in the connection between the lawmaking and the law-executing departments of government. In both the British and the American systems, the body which makes the law must necessarily be supreme over the body which simply carries out the law when made. In the British system not only is this supremacy recognized, but, by a certain arrangement of the machinery of government, the will of the law-making body is made to sympathetically affect and control the will of the executive in the administration of

See post, p. 57, et seq.

Campbell v. Hall, Cowp. 209; and see Lenoir v. Ritchie, 3 S. C. R. 575, 1 Cart. 488.

public affairs; and the administrative knowledge of the executive is utilized to the full in the work of legislation. The same supremacy of the legislature necessarily exists in the United States system; the executive department of the Federal government, or of any one of the State governments, must administer public affairs according to law. But in their system there seems apparent a determined effort to prevent cooperation and sympathy.

What then is this arrangement of machinery in the British system? Of late years it has been found necessary to revise somewhat our ideas concerning the British constitution. The older authorities dwell upon the division of power between the legislative and executive departments of government, and the subdivision, in turn, of the legislative department into King, Lords, and Commons; and they dilate with quiet enthusiasm upon the "checks and balances" provided in and by such a division and subdivision of power. Gradually, however, this "literary theory," safe-guarding the ark of the constitution with its supposed division of sovereignty into departments, came to be recognized as an incomplete and, in truth, wholly erroneous explanation of the working of the constitution. Of comparatively recent writers, the late Walter Bagehot, in his most valuable essays, attacks with vigor this "literary theory" with its supposed checks and balances, and arrives at this conclusion:

"The efficient secret of the English constitution may be described as the close union, the nearly complete fusion, of the executive and legislative powers. No doubt, by the traditional theory as it exists in all the books, the goodness of our constitution consists in the entire separation of the legislative and executive authorities, but in truth its merit consists in their singular approximation. The connecting link is the Cabinet. By that new word we mean a committee of the legislative bodv selected to be the executive body. The legislature has many committees, but this is its greatest. It chooses for this, its main committee, the men in whom it has most confidence. It does not, it is true, choose them directly; but it is nearly

"E.g. Chitty, "On the Prerogatives of the Crown," at p. 2.

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