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a tangible way-evidenced partly by despatches, partly by instructions, partly by statutory enactments, partly, perhaps, by long disuse of power along certain lines-put upon record its recognition of the necessary connection which must exist between the legislative and executive departments of government, as well in the case of a colony as in the case of the United Kingdom.

As a preliminary to this survey reference must be made to what was, in the latter part of the eighteenth and the earlier decades of the nineteenth century, the accepted view of the British constitution. It was then chiefly commended because of the complete separation, as was supposed, of the legislative and executive departments. Legislative supremacy resided in the parliament, executive supremacy in the Crown. Opportunity for interference by parliament to control and regulate executive action was largely the result of the financial necessities of the executive head of the nation; but, to the extent to which the royal revenues rendered the Crown independent of parliament, the government of the nation was frequently carried on without the aid of that body. How the change was gradually brought about, until now the supremacy of parliament over the executive is a clearly established principle of the British constitution, is beyond the scope of this work to trace. Shortly stated, it was effected by the judicious use of the Commons' control over the purse strings to secure the consent of the Crown to the relinquishment to parliament of the most important of those common law powers of the executive known as "the prerogatives of the Crown." But in the latter part of the eighteenth century the government of Great Britain was, to an extent very much larger than at present, carried on by the exercise of these prerogatives. It was more largely an executive government, and of no department was this more true than of the colonial, "the Board of Trade and Plantations." The very facts above alluded to-that for very many years after the settlement of Nova Scotia (practically until the B. N. A. Act) no legislative interference by the Imperial

See May's Const. Hist.

parliament in the government of the Maritime Provinces took place that provinces were enlarged, divided, joined, all without Act of parliament-and that, without Act of parliament, representative assemblies were established therein-make manifest the extent to which the government of the early provinces was in the nature of executive government, by prerogative. And yet not entirely so, for in a celebrated case," involving a consideration of the proclamation of 1763, Lord Mansfield held that, although on the acquisition of new territory by conquest or cession the Crown without parliament may make laws for the government of the conquered or ceded territory, nevertheless, on the grant to the inhabitants of the right to make laws through a representative assembly, the prerogative right of the Crown to legislate for the internal government of the colony is forever gone. Thereafter the Crown stands in the same relation to the representative assembly of the colony as in England to the Imperial parliament; and any withdrawal of the colony's right to make laws. can only be effected by the Imperial parliament."

So far, however, as related to the executive functions of government, the theory of executive independence which obtained in England was carried to its practical result in the work of government in the colonies. Theoretically and, indeed, legally the Crown, by virtue of its position as a constituent branch of parliament, could prevent encroachment by the legislature upon its prerogatives (in other words, upon the executive department of government), but in England the financial necessities of the executive gradually led, as before observed, to the surrender to parliament, or at least to parliamentary control, of the entire executive government of the nation. The Crown occupied in the colonies the same position as a constituent branch of the legislature; but the financial necessities of the executive government were, in those early colonial days, so largely met by the revenues arising from the sale of Crown lands, from fines, tolls, and other

Campbell v. Hall, Cowp. 204; relating to Grenada.

This was one of the prerogatives annexed to the Crown as com

mander-in chief-a right arising by conquest.

See Re Lord Bishop of Natal, 3 Moo. P. C. (N.S.) 148.

royalties of various sorts, and, for the balance, provided for in the Imperial budget, that the executive of a colony was to a large degree independent of the colonial assembly.

That the early "assemblys" of the provinces were intended to be confined to purely legislative work, and that, in the doing of it, they were not to interfere in the executive government of the colony, is apparent when one comes to study somewhat more closely the commissions of the early governors, the constitutional charters of those provinces.

There is no essential difference in the terms of these commissions. The first commission conveying authority to summon an assembly in the provinces now forming part of the Dominion was that to Governor Cornwallis of Nova Scotia." "For the better administration of justice, and the management of the public affairs of our said province," the governor was authorized to appoint "such fitting and discreet persons as you shall either find there, or carry along with you, not exceeding the number of twelve, to be of our council in our said. province. As also to nominate and appoint, by warrant under your hand and seal, all such other officers and ministers as you shall judge proper and necessary for our service and the good of the people whom we shall settle in our said province until our further will and pleasure shall be known." Subsequent appointments to fill vacancies in the council were to be made by the authorities in England. With the advice and consent of this council the governor was empowered to establish courts of justice and to appoint all the necessary ministerial and judicial officers in connection therewith. The public revenue was to be disbursed by the governor's warrant, issued by and with the advice of the council, with this limitation, however, that it was to be disposed of by the governor "for the support of the government, and not otherwise." It is hardly to be wondered at, having in view the mode of appointment, and of filling vacancies in this council, that the executive government of those days came to be designated by the familiar phrase, "the family compact."

7 Houston, Const. Documents, p. 9.

Turning now to the part played in government by the assemblies: the commission to Governor Cornwallis commanded him to govern the colony according to his commission, the instructions therewith, or to be thereafter given "and according to such reasonable laws and statutes as hereafter shall be made or agreed upon by you, with the advice and consent of our council and the assembly of our said province." The legislative power was in terms ample: "To make, constitute, and ordain laws for the publick peace, welfare, and good government of our said province and for the benefit of us, our heirs, and successors; which said laws are not to be repugnant but, as near as may be, agrecable to the laws and statutes of this our Kingdom of Great Britain." All such laws, however, were subject to disallowance by the Imperial authorities, with no limitation as to the time within which such disallowance should take place.

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The position of the Crown'as a constituent branch of the assembly was recognized in a clause noteworthy for the frank and undisguised fashion in which it discloses the reason:

"And to the end that nothing may be passed or done by our said council or assembly to the prejudice of us, our heirs, and successors, we will and ordain that you, the said Edward Cornwallis, shall have and enjoy a negative voice in the making and passing of all laws, statutes, and ordinances, as aforesaid."8

The importance of the concession to the early provinces of the right to frame the laws by which, in local matters, they were to be governed, must not be under-rated. If it cannot be considered as in any fair sense a concession of the right of self-government, it must at least be admitted that it fell short only because of the theory which then obtained that the two departments of government should be kept strictly distinct and because of the inability of the colonial legislatures to withhold supplies until grievances in the executive department were remedied.

Compare Chitty, "Prerog. of the Crown p. 3, quoted post, p.

The form of government introduced into Quebec by Imperial statutes must now be examined. For eleven years after the Treaty of Paris, the commission to Governor Murray and his successors (read with the proclamation of 1763) was the charter of government; but, as already noticed, no assembly ever met in that province, and any legislation which was considered necessary was passed by the governor and his council. Owing to the discontent of the inhabitants, then largely French, at the introduction (which was claimed to have taken place) of English civil law, and owing perhaps to a doubt of the legality of the ordinances of the governor and his council, “The Quebec Act, 1774," was passed by the Imperial parliament. This statute revoked the right to a representative assembly and lodged both departments of government, legislative and executive, in the hands of the governor and his council; with this provision, however, that the members of the council were to be appointed from the in habitants of the province. A perusal of the Act discloses much milder checks on the legislative power than in the case of the earlier commissions;-no doubt because of the union of the legislative and executive powers of government in the same hands.10

By "The Constitutional Act, 1791,"-the king having signified "his Royal intention to divide his province of Quebec into two separate provinces "-provision was made for the establishment in each of a legislative council and assembly. Beyond giving the assembly so created the right to legislate as to time, place, and manner of holding elections to the assembly, the Act gave to the legislature no larger measure of control over the executive than had been conferred on the assemblies in the Maritime Provinces.1

9 14 Geo. III. c. 83.

10 By the 13th section the Governor and his council were expressly prohibited from "laying" taxes or duties within the province, with the exception of local assessments for municipal purposes. By an Act of the same session (c. 88) provision was made for raising a revenue by means of duties on rum, spirits, and molasses, to be disbursed by imperial officers. See the Act; Houston, Const. Doc. p. 97. It is referred to post, p. 13.

1 But see post, p. 13.

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