CHAPTER XII.

THE B. N. А. АСТ, 1867,

30-31 Vic. Cap. 3.

An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof and for Purposes connected therewith.

[29th March, 1867.]

WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their desire (i) to be federally (ii) united into one Dominion under the Crown of the United Kingdom (iii) of Great Britain and Ireland, with a Constitution similar in principle to that of the United Kingdom (iv):

(i) "Have expressed their desire."-This expression of desire is to be found in the Quebec Resolutions, which will be found printed in full in the appendix. See ante, p. 2.

(ii) “ Federally."-The use of this term would seem to imply the continued existence of the parties to the foedus. See chapter III., ante, p. 47; and see also the judgment of the Privy Council in Liquidators of Maritime Bank v. Receiver-General of New Brunswick (a).

(a) At present only reported in Times Law Reports for week ending 6th July, 1892 (Vol. VIII., p. 677).

CAN. CON.-16

(iii) Under the Crown of the United Kingdom."-See notes to section 2, post; and see also, as to the necessary saving of Imperial sovereignty in colonial legislation, chapter IX., ante, p. 183, et seq.

(iv) “A constitution similar in principle, etc.”—For a comparison and contrast of our system of government, with those of the United Kingdom and the United States, see chapter I. As to the limitation of this preamble to the Dominion government only, and the harmlessness of such limitation, see ante, p. 3, and chapter III. It is submitted, however, that read in connection with clause 3 of this preamble, it should be treated as a general reference to the type of governmental machinery, and its working principle throughout both the Dominion and the various provinces.

And whereas such a Union would conduce to the welfare of the Provinces and promote the interests of the British Empire:

And whereas on the establishment of the Union by authority of Parliament (i) it is expedient, not only that the Constitution of the Legislative authority (ii) in the Dominion be provided for, but also that the nature of the Executive Government (iii) therein be declared:

(i) "By authority of parliament."-As to the legislative supremacy of the Imperial parliament over Canada, in common with all other parts of the British Empire, see chapter IV. In the early days of our colonial history provinces were divided, and again joined together by the Crown in the exercise of "prerogative," but as representative legislatures were in existence in the pre-Confederation provinces, any attempt to effect their union otherwise than by Act of the Imperial parliament would have been illegal.

See ante, p. 30, and chapter VI. ante, p. 140; and see also notes to section 3, post.

(ii) "The legislative authority in the Dominion.”—As to the control exercised by the executive department of the Imperial government over Dominion legislation, see chapter VII. ante, p. 145, where will be found a full discussion of sections 55, 56 and 57 of the B. N. A. Act. As to colonial legislative authority and the limitations thereon, see chapter IX.

(iii) "The nature of the executive government."-As to the necessary co-extension and practical oneness of the spheres of authority of the legislative and executive departments of government, see ante, p. 12 et seq., 22 et seq., 45 et seq., and chapter VI. See also notes to section 9, post.

.

And whereas it is expedient that provision be made for the eventual admission into the Union of other parts of British North America (i):

(i) "The eventual admission of other parts of British North America."-See sections 146 and 147, post, and Part IV. of this book.

Be it therefore enacted and declared by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:

I.-PRELIMINARY.

1. This Act may be cited as "The Short Title. British North America Act, 1867 " (i).

(i) Throughout this work we have adopted the shorter mode of citation, "the B. N. A. Act." It should be pointed out, however, that there are two other Acts similarly entitled, namely, the B. N. A. Act, 1871 (b), and the B. N. A. Act, 1886 (c). By section 3 of the last-named Act, these three statutes are to be construed together, and may be cited as "The British North America Acts, 1867 to 1886." We draw attention, too, to "The Parliament of Canada Act, 1875 (d), as to which, see notes to section 18, post.

Application of provisions referring to the Queen.

2. The provisions of this Act referring to Her Majesty the Queen extend also to the heirs and successors of Her Majesty, Kings and Queens of the United

Kingdom of Great Britain and Ireland (i).

(i) “Kings and Queens of the United Kingdom.”The succession to the Crown of England is now regulated by the Act of Settlement, 12 & 13 Wm. III. c. 2. By the common law of England, upon the abdication of a sovereign, parliament might re-settle the succession, and in comparatively modern times we have the precedent of the Bill of Rights, 1 Wm. & Mary (st. 2), c. 2, by which it was declared that, by his flight from the kingdom, James II. had abdicated the throne, and the crown was settled upon William and Mary. Then came the Act of Settlement, to which we have referred, settling the succession upon the Electress Sophia, of Hanover, and her heirs, being Protestants. The power of parliament to alter the succession is distinctly affirmed in 6 Anne, c. 7, which adjudges traitors all who affirm "that the kings or queens of this realm, with and by the authority of parliament, are unable to make laws and statutes of sufficient force and validity to limit and bind the Crown and the descent, limitation, inheritance, and government thereof." While, as we have frequently pointed (b) 34 & 35 Vic. c. 28 (Imp.); see post. (c) 49 & 50 Vic. c. 35 (Imp.); see post. (d) 38 & 39 Vic. c. 38 (Imp).

out, colonial legislatures have full power to curtail the prerogatives of the Crown in connection with the executive government of a colony (e), this does not extend to enable. a colonial legislature to pass an Act affecting the position of the occupant of the throne of England as Executive Head throughout the Empire; see Craw v. Ramsay, cited ante, p. 184. See s. 9, post, and notes thereto.

II.-UNION.

Declaration

3. It shall be lawful (i) for the Queen, of Union. by and with the advice of Her Majesty's Most Honourable Privy Council, to declare by Proclamation (ii) that on and after a day therein appointed, not being more than six months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be one Dominion under the name of Canada; and on and after that day those three Provinces shall form and be one Dominion (iii) under that name accordingly.

(i)" It shall be lawful."-See note (i) ante, p. 242; the Proclamation of Union rests upon the express "authority of Parliament," as intimated in the preamble.

(ii) Her Majesty's Proclamation bore date 22nd May, 1867, and provided that the Union should take effect on July 1st of that year.

(iii) “One Dominion.”—i.e., for all purposes of government, legislative and executive, in relation to matters of common concern, leaving the component provinces their full rounded autonomy in all other matters. "The object of the Act was neither to weld the Provinces into one, nor

(e) See ante, p. 140; Exchange Bank v. Reg., 11 App. Cas. 157; Liquidators of Maritime Bank v. Receiver-General of New Brunswick, Times Law Rep., Vol. VIII., p. 677.