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note that the contemporary statutory record (b) appears in Acts relating to colonial control of colonial finances,-the "tenure of office” question appearing only in the “conventional” aspect of despatches, instructions, etc. (C). Not to dwell at undue length upon this point, we may mention shortly, that first to New Brunswick, and afterward to Canada, (1847), and Nova Scotia (1849), full control over the revenues from all sources was conceded; and having that full control, the Legislative Assemblies slowly, but surely, overcame the stubborn resistance, or active opposition of the governors of the early forties, and the principle of executive responsibility was firmly and permanently established in all the pre-Confederation provinces.
We are now, perhaps, in a position to define with some accuracy, the nature of the constitutions existing in the provinces immediately prior to the coming into force of the B. N. A. Act.
What Lieut.-Gov. Archibald has said (d) in reference to the constitution of Nova Scotia is clearly applicable to the other maritime provinces : “No formal charter or constitution ever was conferred, either on the province of Nova Scotia or upon Cape Breton while that island was a separate province. The constitution of Nova Scotia has always been considered as derived from the terms of the royal commissions to the Governors and Lieutenant-Governors, and from the “instructions” which accompanied the same, moulded from time to time by despatches from Secretaries of State, conveying the will of the Sovereign, and by Acts of the local legislature, assented to by the Crown; the
(6) 1 & 2 Wm. IV. c. 23 (Imp.); 8 Wm. IV. c. 1 (N.B.); 3 & 4 Vice c. 35 (Imp.); 6 & 7 Vic. c. 29 (Imp); 6 Vic. c. 31 (Can.); 9 & 10 Vic. c. 94 (Imp.); 9 Vic. c. 114 (Can.); 10 & 11 Vic. c. 71 (Imp.); 12 & 13 Vic. c. (N.S.); 12 & 13 Vic. c. 29 (Imp.) ; 15 & 16 Vic. c. 39 (Imp.) ; 17 & 18 Vic. c. 118 (Imp.) See Mercer v. Atty.-Genl. of Ont., 5 S. C. R. at p. 700, et seq., for an historical statement by Gwynne, J., on this subject.
(c) Todd, Parl. Govt. Brit. Col., pp. 25-6. (d) Can. Sess. Papers, 1883, No. 70.
whole to some extent interpreted by uniform usage and custom in the colony."
In (old) Canada the form of government was prescribed by the Act of Union (e). But as to all the provinces, it can be truly said that their constitutions were modelled on the pattern of the parent state, both as to their governmental machinery and as to the principle on which they were operated. In outward forin, 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 into the motive power and the mode of its application, we may say 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 shall govern in the matter of the formation, the continuance in office, or the retirement of the Cabinet. The “conventions of the constitution," whose slow growth had gradually culminated in the full recognition of the principle of executive responsibility to parliament, was by the simple method we have shortly described—by instructions to the governors—introduced as the working principle of the provincial constitutions.
Of the causes which led to the adoption by the provinces of the Resolutions of Quebec, upon which the B. V. A. Act is founded, it is for the historian to treat. So far as those causes affected the terms of the union, as to the distribution of the field of governmental action, we shall, of course, have occasion to refer to them hereafter. Here we need only point out, that in agreeing to the establishment of a “general” government, charged with matters of com
(e) 3 & 4 Vic. c. 35 (Imp.)
mon concern, the provinces resolved that such general government should be modelled on the British constitution, and that its executive authority should be administered according to the well-understood principles of the British constitution. We may say, therefore, of both the Dominion and the provincial governments: “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” (f).
(s) Bourinot, · Maple Leaves,' p. 37.
WHAT BECAME OF THE PRE-CONFEDERATION
As justification for the last chapter, it was asserted that in order to establish the Dominion government, and the federal scheme of the B. N. A. Act, the slate had not been cleaned; and we shall endeavor to make good that justification.
In comparing the British and United States systems of government, the really federal character of the formerviewed as an Imperial constitution—was pointed out; but the gradual working out of the federal idea in the Imperial constitution (through continuous concessions of powers of self-government to the colonies) was contrasted with the studied action of the Fathers of the American Union, in taking this federal idea as the starting point of their departure (a). The reason is apparent.
The reason is apparent. Thirteen selfgoverning communities occupied one compact territory; their inhabitants were of common origin, and had common interests; and they deliberately set to work to establish a “national” government, charged with the control of those matters which were deemed of common interest, but, just as deliberately, they insisted upon preserving their right to regulate their local concerns in their local assemblies. And so in relation to the enactment of the B. N. A. Act:-there
(a) See ante, Chap. I., p. 5, et srq.
was the same fact of pre-existing governments, the same desire for united action on matters of common concern, and the same deliberate refusal (based on the same desire to preserve local autonomy) to establish a legislative union, or what has been styled a "unitarian "system.
Opinions may very reasonably vary at different periods as to where the line should be drawn which is to divide matters of common or national,” from matters of “local” concern; and this variation in opinion is manifest in the assignment to our Dominion government of several subject matters, which, under the scheme of division adopted by the convention of 1787, were not assigned to their national government-for example, criminal law, and the law of “marriage and divorce” (b). When the idea of a Canadian Confederation began to take practical shape, the United States was in the throes of its civil war, and the notion was prevalent that that war had been caused by the weakness of the “national ” government, arising from including among “state rights the “residuum of power," as it has been termed. That the war was not caused by any such defect in the division of the field of governmental action was then pointed out (c), and has been since fully demonstrated; but the prevalence here of that notion led the fathers of confederation to desire a strong central government, and to that end the
resiluum of power” is, under the B. N. A. Act, with the Dominion government («l). This fact has been much utilized in argument, to belittle the sphere of authority of the Provincial governments, and because, as it is put, these latter are governments possessing only“ enumerated powers,"
(9) That the assignment of these (as matters of common concern re. quiring uniformity of treatment) to the “national”
government is more consonant with modera ideas, is apparent from the numerous expressions of opinion from across the line, in favor of an amendment of the U. S. constitution in these particulars.
(c) See the speech of Mr. C. Dunkin-Confed. Deb., p. 491. (d) See sec. 91.