Imágenes de páginas

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:

1.-PRELIMINARY. 1. This Act may be cited as “The Short Title. British North America Act, 1867” (i).


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(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 (6), 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 re.

2. The provisions of this Act referferring to the

ring 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 compar-
atively modern times we have the precedent of the Bill of
Rights, 1 Wm. & Mary (st. 2), c. 2, by which it was de-
clared that, by his flight from the kingdom, James II. had
abdicated the throne, and the crown was settled Wil-
liam 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

(6) 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. 3. It shall be lawful (i) for the Queen, of Calon. 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.

Construction of subsequent


to subordinate provincial governments to a central authority, but to create a federal government in which they should all be represented, intrusted with the exclusive administration of affairs in which they had a common interest, each province retaining its independence and autonomy.”Per Lord Watson, in Maritime Bank v. Receiver General of New Brunswick, Times L. R., Vol. VIII. p. 677. See the judgment quoted more at length in notes to section 58, post..

4. The subsequent provisions of this provisions of

Act shall, unless it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the day appointed for the Union taking effect in the Queen's Proclamation; and in the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada

as constituted under this Act (i). (i) Canada as constituted under this Act." - This Act must now be read in connection with the various Imperial “ Orders in Council," passed under section 146, post, and having, under that section, the force of Imperial statutes; and with the Acts in amendment of this Act. See note to section 1, ante.

5. Canada shall be divided into four Provinces (i), named Ontario, Quebec,

Nova Scotia, and New Brunswick. (i) "Four Provinces."-For the boundaries of the Dominion, and of each of the different provinces of which it is now composed, see Houston, “Constitutional Documents of Canada," appendix B, p. 271. At the date of Confederation, there were in existence in British North America three other provinces, namely, Newfoundland, Prince Edward Island, and British Columbia,; the balance of the territory

Four Provinces.


being unorganized, except in so far as the government of the Hudson's Bay Company in Rupert's Land might be deemed an organized government. Newfoundland has so far declined all invitations to unite her fortunes with the Dominion, although she was one of the provinces represented at the Quebec Conference. Prince Edward Island and British Columbia have since joined, and the remainder of British North America has been annexed to Canada, and the province of Manitoba erected therein, so that there are now seven “provinces” in the Dominion, exclusive of the North West Territories. See Part IV. of this book.

6. The parts of the Province of Can- Provinces of ada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form two separate Provinces (i). The part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec (ii).

(i) Two separate provinces.”—See Quebec Resolutions, No. 2. Although joined in legislative union under Imperial Act, 3 & 4 Vic. c. 35 (“The Union Act”), the difference in race, language, and legal systems justified the popular description of the two parts of old Canada as “the two Canadas.” For an interesting sketch of the devices resorted to, in order to work out the federal idea in the government of these two parts of Canada, see Bourinot, “Parliamentary Procedure and Practice," 2nd ed. p. 39, et seq. The necessity, created by this severance of the two Canadas, for the establishment of new governmental machinery in each of them, and the argument founded on the clauses of

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