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THE

LAW OF THE CANADIAN CONSTITUTION

CHAPTER I.

PRE-CONFEDERATION CONSTITUTIONS.

The Dominion of Canada looks for its constitution to the "British North America Act, 1867." 1 Since the 1st day of July in that year Canada's form of government has been, under that Act, a general 2 Dominion government charged with matters of common interest to the whole country and local provincial governments charged with the control of local matters in their respective sections. The constitution of these governments is provided for in the Act, and the sphere of political activity assigned to each carefully mapped out.

"The object of the Act was neither to weld the provinces into one, nor to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy. That object was accomplished by distributing between the Dominion and the provinces all powers, executive and legislative, and all public property and revenues which had previously belonged to the provinces, so that the Dominion government should be vested with such of those powers, property, and revenues as were necessary for the due

130 & 31 Vict. c. 3 (Imp.).

'These are the distinguishing words used throughout the Quebec Resolutions upon which the B. N. A. Act-to use the common abbreviation-is based. See Appendix A.

CAN. CON.-1

performance of its constitutional functions, and that the remainder should be retained by the provinces for the purposes of provincial government.” 3

If the B. N. A. Act were the creation of a governmental organism new in all its parts, justification might be lacking for historical retrospect. Many parts, however, of the machinery of government existing in the provinces prior to 1867 were retained under the federating Act, and it will be necessary, therefore, to examine the earlier provincial constitutions. Indeed, it will appear that in at least two, New Brunswick and Nova Scotia, the governmental machinery was left almost intact; new provision was made only for the Dominion government and the provinces of Ontario and Quebec. In any case a short historical retrospect will probably not be out of order.

With the view, then, to determine the nature of the constitution of government in the various provinces of which the Dominion is composed, it is proposed to discuss briefly, and so far only as is necessary to a proper appreciation of our present system, the constitutional history of those provinces.

To NOVA SCOTIA belongs the distinction of being the oldest of the B. N. A. colonies now forming part of the Dominion. The preamble to one of the earliest Acts of the Nova Scotia Assembly (1759) declares that "this province of Nova Scotia, or Acadie, and the property thereof, did always of right belong to the Crown of England both by priority of discovery and ancient possession." The correctness of this declaration France would probably not admit; but the contest would be of antiquarian interest merely, for by the treaty of Utrecht, in 1713, "Nova Scotia, or Acadia, with its ancient boundaries," was ceded by France to the Crown of England in the most ample terms of renunciation. Nova Scotia, as thus ceded, included the present

3

Liquidators of Mar. Bank v. Rec.-Gen'l of N. B. (1892) A. C. 437; 61 L. J. P. C. 75; 5 Cart. 1.

The same remark applies to British Columbia and Prince Edward Island upon their admission to the Dominion.

And afterwards for Manitoba and the North-West Territories.
G 33 Geo. II. c. 3 (N. S.).

provinces of Nova Scotia (excluding Cape Breton) and New Brunswick, and also part of Maine. For many years after its acquisition, Nova Scotia was practically under the military rule of a governor and council, whose authority was defined in the governor's commission. In 1749, a colonization scheme was set on foot, and, anticipating an influx of settlers into the colony, the commission to Governor Cornwallis authorized the summoning of "general assemblys of the free-holders and planters within your government according to the usage of the rest of our colonies and plantations in America." After much delay and the exhibition of much unwillingness on the part of the governor and his council to act upon this direction, a scheme of representation was settled, and the first parliament of Nova Scotia met on the second of October, 1758, at Halifax.

In 1763, the remaining portions of what are now known as the Maritime Provinces-Cape Breton and Prince Edward Island-were, by the treaty of Paris, ceded to Great Britain; and, by the proclamation which followed, were annexed "to our government of Nova Scotia."

Six years later, PRINCE EDWARD ISLAND was made a separate province under a governor of its own, and his commission, also, authorized the calling together of "general, assemblys of the free-holders and planters within your government, in such manner as you in your discretion shall judge most proper," and according to further instructions. The first parliament of Prince Edward Island met in 1773.

In 1784, NEW BRUNSWICK was made a separate province, and the commission of its first governor authorized, in somewhat similar phraseology, the summoning of a general assembly, which shortly thereafter met.

Of CAPE BRETON's constitutional vicissitudes it is unnecessary to make mention. Finally, in 1820, it was re-annexed to the government of Nova Scotia, of which province it has ever since formed, and now forms, part.

They are set out at length in 5 Moo. P. C. 259; In re The Island of Cape Breton.

So far as the Maritime Provinces are concerned, their legislatures of to-day are the lineal descendants of those early "general assemblys."

QUEBEC not the present province of that name, but practically the now provinces of Quebec and Ontario-was ceded to Great Britain by the same treaty of Paris which secured Cape Breton and Prince Edward Island. The proclamation which followed upon the cession simply annexed Cape Breton and Prince Edward Island to the government of Nova Scotia, but erected Quebec into a new province and made provision for its government. Both by that proclamation and by the commission to Governor Murray the institution of a representative assembly was contemplated, but, for reasons upon which it is unnecessary to enlarge, no such assembly ever met thereunder. Not until after the passage of what is known as "The Constitutional Act, 1791,"10 dividing Quebec into the two provinces of Upper and Lower Canada and providing for a separate legislature in each province, did such assemblies meet; that of Upper Canada at Niagara, on the 17th of September, 1792, and that of Lower Canada at Quebec, a few months later. In 1840, the two provinces of Upper and Lower Canada were, by what is commonly known as "The Union Act," joined together in a legislative union which lasted until the birth of the Dominion.

In taking a comprehensive view of the nature of the government which was established in the various provinces, it will be convenient to confine our attention, in the first place, to the constitutions established by royal prerogative2 in the Maritime Provinces, and to treat later of the statutory constitutions of the Upper Provinces.

This survey is undertaken in order to show that prior to the date of Confederation the Imperial government had in

The documents relating to the early constitutions of the Maritime Provinces are set out in Return No. 70, Can. Sess. Papers, 1883. 'See Houston, Constitutional Documents of Canada, p. 67. 10 31 Geo. III. c. 31 (Imp.); see post, p. 9.

13 & 4 Vic. c. 35 (Imp.).

* See Phillips v. Eyre, (1870) L. R. 6 Q. B. 20; 40 L. J. Q. B. 28, as to the powers of the Crown in this connection.

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