CHAPTER X. THE DIVISION OF THE FIELD. In the earlier chapters of this book, the practical oneness of the spheres of authority of the legislative and executive departments of government has been insisted upon, and the legal supremacy of the former over the latter pointed out («). Expressed in another way and in reference to a government of limited authority, it may be said that to fix the sphere of authority of the legislative department of such a government, is to fix at the same time the sphere of authority of the executive department of that government. Applying that principle to the Canadian constitution, it will be at once seen how important it is to fix, if possible, the exact line which is to divide, for legislative purposes, the field of colonial authority between the Dominion parliament and the Provincial legislative assemblies. For, that line found, we have likewise established the line of division between the Dominion and the Provinces for the purposes of executive government. Before entering upon an examination in detail of the sections of the B. N. A. Act which provide for the distribution of legislative power, we may shortly advert to the laws and legal institutions existing in the different provinces at the time the B. N. A. Act took effect, and to some general principles which have been authoritatively established in reference to the nature of the division effected by the Act. See a te, p. 12. p. 22. et arg. p. 46, vt eq., and Chap. VI. I. When the Union took effect, there was in existence in each of the individual provinces, a legal system-a "body" of laws and legal institutions. By sec. 129 of the B. N. A. Act, it was provided that all laws, etc., in existence in the different provinces at the time of the Union, "shall continue 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Acts of the parliament of Great Britain, or of the parliament of the United Kingdom of Great Britain and Ireland) to be repealed, abolished or altered by the parliament of Canada, or by the Legislature of the respective province, according to the authority of the parliament or of that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." This mass of laws and legal institutions may be considered the raw material, so to speak, upon which the legislatures of the Dominion and the respective provinces were to operate, each according to its authority under the B. N. A. Act; and it must be borne in mind that we have laws (common law and statutory enactments) on many subjects which have come down to us from pre-Confederation days, and these can be repealed or altered only by that legislative body which could now, were they non-existent, enact them (6). The division, therefore, effected by the B. N. A. Act, was a present division of the whole body of existing law (in its widest sense), as well as a division of the field for future exercise of authority (c). Of course, the body of law in existence when the B. N. A. Act came into force was of provincial creation, but at once upon that Act taking effect, that portion of existing laws, etc., which fell within the sphere of authority of the Dominion parliament, became what we may call a body of Dominion law, while the remainder might, not inaptly, be designated a body of provincial laws. (b) Dobie v. Temporalities Board, 7 App. Cas. 136. (c) See ante, pp. 49, 50. |
