THE CONSTITUTION CANADA. flondon: C. J. CLAY AND SONS, JAMBRIDGE UNIVERSITY PRESS WAREHOUSE, AND STEVENS AND SONS, LIMITED, 119 anp 120, CHANCERY LANE, LAW PUBLISHERS axp BOOKSELLERS. Sambribge: DEIGHTON, BELL AND CO. Leipsig: F. A. BROCKHAUS. fete Bork: MACMILLAN AND CO. THE CONSTITUTION YF CANADA. J. E. C. MUNRO, OF THE MIDDLE TEMPLE, BARRISTER AT LAW, PROFESSOR OF LAW OWENS (OLLEGE., VICTORIA UNIVERSITY. CAMBRIDGE: AT THE UNIVERSITY PRESS. | RRO All Rights reserved, Cambridge: PRINTED BY C. J. CLAY, M.A. AND SONS, AT THE UNIVERSITY PRESS. ZZes Ins > > 2,3 8 2? § \ 2 ry -3 a ‘a | = L g bh 7 > WN, 2 Nee & H- & ~ "ag. PREFACE. SOME years ago I began to collect materials for a survey of the legal aspects of the constitution of the empire, but my purpose as regards the constitution of Great Britain and Ireland was anticipated by the publication of Sir William Anson’s valuable work on the Law and Custom of the Constitution, and I therefore restricted myself to" the constitutions of our colonies. Of these it is not possible to take a general survey without examining each in detail. Our colonies exclusive of the Indian dependencies fall into four groups: (1) the North American group, (2) the Australian group, (3) the South African group and (4) the Crown colonies. I have selected Canada for treatment first, not merely because a special interest has of recent years been taken in its constitution, but for the further reason that some recent Canadian statutes have given a completeness to the Dominion system of government it did not previously Possess. T have not attempted to criticise the working of the constitutions described or to investigate the development of purely local government—any adequate treatment of such subjects would require a greater personal knowledge of Canada than I can claim to possess: they are therefore reserved for consideration at some subsequent time. Constitutional customs are dealt with briefly, as Mr Todd in his 71 PREFACE. work on Parliamentary Government in the Colonies has Jfiscussed such matters at full length. In the chapter on the Dominion Parliament I have availed myself of the very valuable work of Mr Bourinot on Parliamentary Procedure in Canada. In the last session of the Canadian Parliament several Acts were passed that modify some of the statements in the iext. By the 51 Vic. c. 11 the Dominion Elections Act has been mended as regards the nomination of candidates, the method of voting, and the definition of corrupt practices; by the 51 Vic. c. 17, the organisation of the Department of Public Printing has been modified; and by the 51 Vie. c. 43 appeals criminal cases to the Judicial Committee of the Privy Council have been forbidden. The most important change introduced into the constitusion has been the formation of a Legislative Assembly for the North West Territories. By chapter 50 of the Revised Statutes of Canada the Council of the North West Terribories, as soon as its number reached twenty-one, was to give way to a Legislative Assembly’. The new Assembly is to consist of twenty-two elected members and three legal experts, the former to be elected by such male British subjects, other than unenfranchised Indians, as have been resident in the Territories for twelve months, and in their electoral districts for three months, preceding the election; the latter to be aominated by the Governor-General in Council. The legal experts have the same privileges as elected members, except that they are not allowed to vote: on a jissolution taking place they vacate their offices. The Lieutenant-Governor is authorised to nominate four members of the Assembly to act as an advisory council” on See post, p. 36. PREFACE. vil matters of finance. At meetings of this council the Lieutenant-Governor is to preside, and he is allowed a vote as well as a casting vote. Before being introduced all money bills must be recommended by him to the Assembly. Notwithstanding the existence of this Assembly the constitution of the North West Territories differs in several important respects from that found in the provinces. The Territories do not constitute “a Province,” and the Assembly has therefore only such legislative powers as the Dominion Parliament, confers on it. The Lieutenant-Governor exercises the chief executive power and is not to the same extent as in the Provinces bound to defer to his advisers. No doubt in time the more settled districts in the Territories will be formed into a new province. I am much indebted to Mr J. G. Colmar, secretary to the High Commissioner for Canada, for valuable assistance during the progress of the work; to Mr J. S. O'Halloran, secretary of the Royal Colonial Institute, and to the Librarian of the Colonial Office for permission to consult their libraries; and to my friends Professor T. N. Toller and Mr R.T. Wright for their kind aid in revising proofs. J. EB. C. M. 7, NEw SQUARE, Lincorn’s INN. h CONTENTS. CHAPTER 1 [NTRODUCTION. Majority of the Dominion . Sources of the Constitution . Legislative activity of Dominion . General scheme of the Constitution Powers of the Provinces Provincial Executive The Dominion Legislature The Senate . N s The House of Commons The Executive . . The Governor-General | Powers of the Dominion . : Comparison of Dominion Legislature and U, 8. Congress Conflict between the Dominion and the Provinces Unexpected Constitutional Developments PAGE 1 2 CHAPTER IL ConsirrurioNart HIsTORY OF THE PROVINCES. Area and population of Canada Ontario and Quebec . Nova Scotia . " New Brunswick . Manitoba, . y British Columbia . Prince Edward Island District of Keewatin . North West Territories . Union of the Provinces 14 15 22 25 26 29 32 35 36 26 CONTENTS CHAPTER IIL SourcEs oF THE LAW AND Customs oF THE CONSTITUTION. Imperial Acts . Dominion Acts ’ ’ Provincial Acts ’ a Orders in Council . ‘ ' Orders of the Dominion Parliament and Provincial Legislatures Usages . . . . . % 7 . . Letters Patent and Instructions of the Governor-General PAGE 40 ‘1 * A AD CHAPTER IV. Provincial LEGISLATURES. Parties to Legislation . : Summoning of the Legislature Opening of the Legislature Adjournment . . Prorogation and Dissolution Annual Sessions . . Enacting Clause . . Payment of Members 44 44 47 2 49 52 52 53 CHAPTER V, TuaE PROVINCIAL ASSEMBLIES. Qualifications of Electors Ontario . . . Quebec . . . Nova Scotia . . New Brunswick . Prince Edward Island Manitoba . . British Columbia . North West Territory . Persons disqualified from voting Qualifications of Elected . Persons disqualified from sitting Distribution of Seats. . Method of Election Quorum . . The Speaker . 55 55 57 &7 58 59 59 60 60 60 Al EY 63 64 66 66 CONTENTS. Privileges . . » Freedom of Speech - . Freedom from Arrest . 3 Exemption from serving on Juries Attendance of witnesses 5 Publication of Papers . . Punishing for Breach of Privilege . Resionation of Members , <1 PAGE 66 69 69 f9 "J 0 CHAPTER VI. ProvinciAL LEGISLATIVE COUNCILS. Provinces possessing Councils . Number of Council v 3 Qualifications of Councillors Disqualifications of Councillors . . Appointment and election of Councillors Term of Office Quorum : The Speaker . Privileges . Resignation . 72 72 75 5 76 7f, CHAPTER VII, METHOD OF LEGISLATION. Hour of Meeting Order of Business Public Bills . Money Bills . Private Bills . 7 77 77 79 CHAPTER VIII THE LIEUTENANT-GOVERNOR. How appointed ‘ His functions . - Relation to his Ministers Term of Office 80 82 82 3 33 CONTENTS. CHAPTER IX, Tae PROVINCIAL ADMINISTRATION. Appointment of Ministers . . Number of Ministers. ’ Distribution of Departments Department of the Law Officer | of the Provincial Secretary of the Provincial Treasurer of Public Works . of Crown Lands of Education . PAGE 84 84 85 85 36 86 86 B6 86 CHAPTER X. "THE PROVINCIAL JUDICATURE. Provincial Powers as to administration of Justice Courts of Civil Jurisdiction Quebec : , Ontario ¥ ’ Nova Scotia ’ New Brunswick . Manitoba . . British Columbia Prince Edward Island North West Territories Courts of Criminal Jurisdiction Justices of the Peace . Quarter Sessions . County Courts Assizes ’ ’ Supreme Provincial Court - . Court for Consideration of Crown Cases reserved 88 88 88 92 97 98 102 104 105 107 108 108 108 109 109 109 109 CHAPTER XI. TEE DOMINION PARLIAMENT. Parties to Legislation . Summoning of Parliament Opening of Parliament Quorum ‘ ’ Privileges . n Payment of Members Adjournment . Prorogation Dissolution . 110 110 112 116 117 118 119 120 121 CONTENTS. 31 CHAPTER XII. Tae House or COMMONS. Number . . Qualification of Electors . , Persons disqualified from voting Revision of voters’ lists . Qualifications of Elected . Persons disqualified from sitting Method of Election . .. Election Petitions ” Officers of the House Internal arrangements Resignation . PAGE 123 124 126 127 128 128 130 187 138 140 140 "HAPTER XIII Tue SENATE. Number . . . Qualifications of Senators Appointment of Senators Meeting of the Senate . Tenure of Office . 142 144 145 147 147 CHAPTER XIV. (HE METHOD OF LEGISLATION. How regulated Order of business Petitions . Public Bills Money Bills Committees Private Bills 149 150 151 152 153 155 t50 CHAPTER XV. TaE GOVERNOR-GENERAL. Creation of the Office . . - Instructions and Commission Powers as regards the Legislature Duties as regards Party government Functions as regards the Executive Powers as regards the Judicature Prerogative Powers . . . Powers as regards the Provinces . His responsibility ; 162 163 164 167 168 169 172 173 179 1V CONTENTS. CHAPTER XVI Tae Privy CoUNCIL. Number : . Functions of the Council . as regards Legislation as regards Administration as regards the Provinces Meetings of the Council . . Responsibility of Ministers . PAGE 182 185 185 187 188 189 189 CHAPTER XVII DOMINION ADMINISTRATION. Officers, how appointed . . . Departments of State . Secretary of State . Public Printing and Stationery Interior . . Inland Revenue Customs . " Finance . ” Public Works . Railways and Canals Post Office # Justice . . 3 Agriculture and Statistics Marine and Fisheries Militia and Defence . Indian Affairs . . High Commissioner 190 193 193 194 195 196 197 198 202 204 204 206 208 209 210 213 9214 CHAPTER XVIII. TrE DOMINION JUDICATURE. Establishment of Courts . . The Supreme and the Exchequer Courts Jurisdiction of Exchequer Court . Jurisdiction of Supreme Court Enforcement of Jurisdiction ; Courts for the trial of Controverted Elections Maritime Court of Ontario . v Appointment of Judges . Appeals to the Privy Council 216 216 217 217 219 220 220 221 291 CONTENTS. CHAPTER XIX. DIVISION OF LEGISLATIVE POWER. Scheme of Division 3 ¥ : Principles of interpretation . Legislative Powers . 1. Amendment of Constitution - . The office of Governor-General The Senate . . + The Legislative Councils . The House of Commons . The Legislative Assemblies Privileges . - . 2. New Provinces and Territories 8. Treaty obligations . . 4, Public Property . . 5. Public Debt and Taxation Public Debt » . Direct Taxation . Indirect Taxation 6. Administration . 1. Public safety . . Militia and Defence Quarantine . ’ . . . Public Works and Means of Communication Marine matters Navigation . Sea Coast . Fisheries ’ Matters of State management . Census . . . Statistics . . Weights and Measures 5. The Civil Service . Administration of Justice Court of Appeal . . Powers of Dominion over Provinces Criminal Law . Election Petitions . Civil Procedure . Status » 4 . Naturalisation and Aliens Indians 3 » Marriage and Divorce 9, Education . . . Denominational Schools PAGE 223 226 229 229 230 230 230 230 231 231 232 233 233 235 236 236 238 239 239 239 239 240 240 240 241 241 241 241 242 242 242 242 243 243 243 245 246 246 246 246 246 246 247 XV] CONTENTS 10. Property . . . Property and Civil rights Bankruptcy and Insolvency 11, Trade and Commerce . 12. Monopolies . 5 Patents . . Copyright . . . Incorporation of Companies Money and Banking Currency and Coinage Issue of Paper Money Legal Tender . Bills of Exchange Banking . . Savings Banks . Interest . 14. Agriculture and Immigration 15. Local matters . v . 16. Alteration of Laws existing at date of Union . 13. PAGE 247 248 250 253 255 255 266 255 256 256 256 256 256 256 256 256 256 257 259 CHAPTER XX. DomiNioN CONTROL OF THE PROVINCES Control of Legislation . ~~. °. Veto of the Governor-General Control of Administration ~. v : ' Enforcement of Judgments of Supreme Court 260 260 262 263 CHAPTER XXII. IMPERIAL, CONTROL OF THE DOMINION. 1, Limitations on Legislation . . . 2. Concurrent Powers of Legislation ph gl 5 : ; Acts relating to Canada passed by the Imperial Parliament Powers of the Crown . (a) over Provincial Bills (5) over Dominion Bills 263 266 268 268 268 271 APPENDIX. List of Governors . PAGE 275 British North America Act, 1867 278 Terms of Union British Columbia 313 Terms of Union Prince Edward Island . Terms of Surrender of North West Territories . 822 Imperial Act respecting Establishment of Provinces (34 and 35 Vie. ¢. 28) 325 Imperial Act as to Privileges (38 and 39 Vic. ¢. 38) . . . 8927 Imperial Act as to representation of the N.W, Territories in Parliament (49 and 50 Vie. ¢. 85) . . . 398 Letters Patent constituting the office of Governor-General Instructions . 330 334 Commission 339 TABLE OF CASES. Angers v. City of Montreal. . . Armstrong v, McCutchin . . A. G.v. Niagara Falls Inter. Bridge CO. « ¢ + so + + so A.G.v. Radloff. . . . . . A. G. for Quebec v. Colonial Building and Investment Assoc. . PAGES 24 1. C. J. 259; 2 Cart. 835 . . 239 2 Pug. 881; 2 Cart. 494 . . 246, 253 20 Grant 34; 1 Cart. 813. . . . 245 10Ex.96 . . . . Co... 244 L. R. 9 App. Cas. 157 530. J.P. C.27; 49 L. T. 789 . 256 A. G. for Quebec v. Queen Insur. ance Co... + L. R. 3 App. Cas. 1090 38TL.T.265 « . + « + » » » 236 L. R. 10 App. Cas. 141 54 L.J.P.C. 12; 52 L. T. 393 33W.R. 618. . . . . . . . 287 L. BR. 8 App. Cas. 767 52 L.J.P.C.84; 49L. T. 312. .. 235 L. R. 12 App. Cas. 575 56 I. J.P. C.87; 57 LL. T. 3877. . 229 1 Ont. App. Rep. 436; 1 Cart. 576. 268 L.R. 6 P. C. 81; 1 Cart, 63 31L.T.111; 22 W. R. 933 . 251,257 11 Oni. App. Rep. 82 . . . . . 281 1 Dorion Q. App. 336 ; 2 Cart.250. . . . . . . 228,255 1 Ont. Rep. 445; 2 Cart. 634 . . 243 8 Moo. P.C. . . . + . . . . 181 L.R.6P. C. 272; 44L.J.P.C. 52 32 L.,T. 274; 1 Cart. 95 . . 238,258 30 U. C. Q. B. 553; 1 Cart. 676 . 244 1 Hannay 556; 2 Cart. 421 . . . 251 28 U. C. C. P. 384; 1 Cart. 831 . 246 L.R.7 App. Ces. 96; 51 L. J.P. C. 11 45. T. 721. . . . . 221,224, 254 City of Montreal, Angers v. . . 924 1. C.J. 259; 2 Cart. 835. . . 239 City of Ottawa, Leprohonv. . . 2 Ont. App. Rep. 522; 1 Cart. 592 238 College of Physicians and Surgeons of Ontario, R.v.. . . 44 U. C. Q. B. 564; 1 Cart. 761 . 266 A. G. for Quebec v. Reed A. G. of Ont. v. Mercer . Bank of Toronto v. Lambe. Belford, Smiles v.. . . . Belisle, L'Union St Jacques v. Belle, Doylew. . . . . “ Bennett v. Pharmaceutical Association of Quebec . . . Bennett, R. v. Bigge, Hill ». Black. Dow v. Boardman, R. v. Chandler, R. v. Church ». Fenton. . . - Citizens Insurance Co. v. Parsons TABLE OF CABES. X1X PAGES Colonial Building and Investment Association. A.G. for Quebec v. Corporation of Three Rivers wv. Sulte . . . « « « «+ + Corporation of Quebec, Poulin v. Coté». Watson, . » . . . = County of Prince Edward, Licence Commissioners of Prince Edwardv. . . . . Crombie v. Jackson . . Cushing v. Dupuy. Dansereau, Ex parte . . . . Davidson, Queddy Boom Co. v. Dell vw. Murphy. . . . . . Denison, Ditcherv. . . . . . De Veber, Inte . . . . Ditcher ». Denison . . . . . Dobie v. The Temporalities Board Douglas, Nicklew.. . . . ; Dow ». Black . Doyle v. Belle . Dudman, Kinney v. Duncan, Ex parte . Dupuy. Cushing 2». Ellis, Ex parte . Evans ». Hudon Eyre, R.v. . . . Fabrigas v. Mostyn Farewell, The . . Fenton, Church v. Fitzgerald, Wright v. Fowler v. Padget . Frawley, R.v. . Goodhue,BRe . . . . . . Grainger, Separate School Trustees of Bellevillew. . . . . Griffith, Pagewv. . . . . . Griffith, Paigev. . . . . . Griffith, Pope v. . Griffith v. Rioux , . . . . . Harris and Corporation of City of Hamilton, Re . . . Hill ». Bigge . . I. R.9 App. Cas. 157; 53L. J.P. C. 27 9L.T.780. . . +. + + + >» 256 51. N. 330; 12 Can. 8. C.R. 25 229, 258 9Can.8.C.R.185. . . . . . 258 3Q.L.R. 157; 2 Cart. 343 . 239, 251 96 Grant 452; 2 Cart. 678 . . . 244 34 U. C. Q. B. 575; 1 Cart. 685 249, 251 5 App. Cas. 409 491.7. P.C. 68. . 221, 249, 252, 409 19L.C.J.210; 2 Cart. 165 . . . 67 10Can. 8. C.R. 222 . . ... . 240 L Moo. P.C.N. 8.118. . . . . 180 11 Moo. P.C. 338 . . . . . . 245 21 N.B.R. 401; 2 Cart 552. . . 253 11 Moo. P.C. 838 . . . . . . 245 L. R. 7 App. Cas. 136; 1 Cart. 351 51L.J.P.C. 26; 46 LL. T.1. 229, 259 35U.C.Q.B.126; 37 U.C.Q.B.51 248 L. RB. 6 P. C. 272; 1 Cart. 95 44 TL. J, P.C. 52; 82 L. T. 274 238, 258 11 Ont. App. Rep. 32 . . . . . 231 2 R. and C. 19; 2 Cart. 412. . . 249 16 L. C. J. 188; 2 Cart, 297. . . 245 5 App. Cas. 409; 49 L. J. P. C. 63 L Cart. 252. . . . 921,249, 252, 409 LP. and B. 593; 2 Cart. 527 . . 253 221. C,J.268; 2 Cart. 346 . . 238 Finlayson . . .... . . . . . 180 2084. Tr.81 . . . . . . . . 181 7 Q.L.R. 3880; 2 Cart. 378 . 227, 240 28 U.C.C.P. 384; 1 Cart. 831 . 246 27 8t. Tr. 765. .. . . « ..... 180 JT.R.514 . . . . . . . . 245 7 Ont. App. Rep. 246 . . . 239,245 19 Grant 366: 1 Cart. 560 . . . 248 95 Grant 570; 1 Cart. 816 . . 247 17 L. C. J. 302; 2 Cart. 308. . 245 ISL. C.J. 119; 2 Cart. 324. . . 245 161, C. 7.169; 2 Cart. 291. . . 245 ¢6L.N.211 . . . . 250 44 TU, C. Q.B. 641; 1 Cart. 756 255, 258 3 Moo. P. C. 460 . . .. . . 181 XX TABLE OF CASES. Hodge v.R.. . PAGES L.R. 9 App. Cas. 117; 531. J.P. C. 1 50 L.T. 301 ... . 297,250, 255,258 8 Q. L.R. 357; 2 Cart. 396 . . . 266 291, C. J. 268; 2 Cart. 346. . . 238 34 U. C. 0. B. 575: 1 Cart. 685. 249. 251 Holmes v. Temple. . . . . Hudon, Evansv. . . . . Jackson, Crombie v. . . Johnston ». Minister and Trustees of St Andrew’s Church’ . . . Kinney v. Dudman . . . Lake, R.v... . . . . Lambe. Rank of Toronto v. L. R. 8 App.-Cas. 159; 37 L. T. 556 26 W.R.359. . . . . . . . 221 2 R.and C. 19; 2 Cart. 412 . . . 249 43 U. C. Q. B. 515; 2.Cart. 616 . 244 L. BR. 12 App. Cas..575; 57 L. T. 877 56L.J.P.C.87..... , ... . 229 2 Can. S. C. B. 158; 2 Cart. 220 . 67 L. R. 2 App. Cas. 182; 46 L. J.P. C.1 35 L.T.640; 25 W.R. 216 . . . 221 5 App. Cas. 115; 49 L. J. P. C. 37. 1Cart. 158. .. . . . . . . . 245 430U.C. QB. 164... .. . . . . 244 . R.6P.C. 81; 381 L. T. 111 22 W.R. 933; 1 Cart. 683 . . 251, 287 3Can.S.C.R. 575 . . . . 80,172 Todd. Parl. Gov. 269 -. . . . . 172 2 Ont. App. Rep. 522; 1 Cart. 592° 238 2 0. Stephen’s Dig. : 2 Cart. 349 . 228 Landers v. Woodworth . Landry, Thebergé v. . Langlois, Valin ». . Lawrence, R.v. . . . . [Union St Jacques ». Belisle . Lenoir v. Ritchie . . . . . Lepine’s Case . . . . . . Leprohon v. City of Ottawa . Leveills, Ex parte. . . . . Licence Commissioners of Prince Edward v». County of Prince Edward . . . . . « . . Luby v. Lord Wodehouse . . . McClanaghan ». 8t Ann’s Mutual Building Society . . . . . MeCutchin, Armstrong v. . . McGuire, Wilson vw... .. . . . MeMillan ». South West Boom Co. Melbourne (Municipality of}, Municipality of Cleveland v. . . Mercer. A.G. of Ont. ov... . . . 26 Grant 452; 2 Cart. 678 . . . 244 17Ir. Com. IL. R. 618 . . . . .. 180 24 L. C. J. 161; 2 Cart. 237 . 250, 251 2 Pug. 881; 2 Cart. 494 . . 246, 253 2 Ont. Rep. 118; 2 Cart. 605 .. . 243 P.and B. 715: 2 Cart. 542 . . . 240 4T.N.277; 2 Cart. 241. . . . 248 L.R.8 App. Cas. 767; 52L.J.P. C. 84 49%, T.812 . . . +. « . . . 2385 928 Grant 629; 1 Cart. 828 . . . 249 L. R. 8 App. Cas. 159; 37 L. T. 556 26 W.R. 389 . . . . . . 159, 221 SL. N 155; 2Caxt. 361. . . . 256 208t Tr.81.. . . . , . . . 181 4L, N.277; 2 Cart, 241. . . . 248 Merchants. Bank, Smith v.. . . Ministers and Trustees of St Andrew’a Church. Johnston 2. Montreal Warehousing Co., Royal Canadian Insurance Co. v.. . Mostyn, Fabrigasv. . . . . . Municipality of Cleveland v. Municipality of Melbourne . . . Murdoch ». Windsor and Annapolis Ry. Co. .. , Russell’s Eq. R. 137 . 259 TABLE OF CASES. % x1 PAGES | Mod. P.C.N. 8.118. . . . . 180 L. R. 5 App. Cas. 102 9L.J.P.C.20 . . . . . . 180 20 Grant 34; 1 Cart. 813. . . . 245 357. C. 0. B.126;37U.C. Q.B.51 248 Murphy, Dell ». . Musgrave v. Pulido Niagara Falls Inter. Bridge Co., AGwv. . +. Nickle ». Douglas . . . . . . Normand ». Lawrence Navigation Coe. «+ + «o . Padget, Fowler v. . . Page v. Griffith. . . Paige v. Griffith Papin. Ex parte 5Q.L.R. 215; 2 Cart. 231 . . . 249 7T.B.514 . . . . . . . . 245 171. C. 3.302; 2 Cart. 308. . . 245 18. C.J.119; 2 Cart. 824. . . 245 151... C. J. 334; 16 L. C. J. 819 2Cart.320 . . . . . . . . 245 L. BR. 7 App. Cas. 112; 45 L. T. 721 51L. J. P.C.11 . . . 221, 224,254 Todd’s Parl. Govt. 269. . .' . . 172 3 Ont. App. Rep. 639 . . . . . 251 1 Dorion 2 App. 336 2Cart. 250 . . . . . . . 228,255 wh... J.216 . . . . . . . 250 60, C.J. 169; 2 Cart. 291. . . 245 Can. S.C. R. 18. . . . . . 258 42 U. C. Q. B. 612; 2 Cart. 606 . 244 L. B. 5 App. Cas. 102 49L.J.P.C.20. . . . . . . 180 10 Can. S. C. R. 222 co... 240 Parsons. Citizens Insurance Co. ». Patterson’s Case . . . . . = Peek ». Shields. . . . . . . Pharmaceutical Assoc. of Quebec, Bennett v. ©. . Pillow, Ex parte . . . . . . Pope v. Griffith. . . . . . Poulin ». Corporation of Quebec Prittie, B.o. . . Pulido. Musgrave 2. Queddy Boom Co. v. Davidson . Queen Insurance Co.. A.G. for Quebec. . . . . . . BR.v.Bennett . . . . . . . R.v. Boardman . . . . . . R. ». Chandler. . . . . R. v. College of Physicians and Surgeons of Ontario. . . . R.v».Dall. ... . R.v. Eyre . . R. ». Frawley R.. Hodge 2». L.R. 3 App. Cas. 1090 ; 38L. T. 265 236 1 Ont. Rep. 445; 2 Cart. 634 . . 243 30 U. C. Q. B. 553; 1 Cart. 676 . 244 1 Hannav 556: 2 Caxt. 421 . . . 251 14 U. C. Q. B. 564; 1 Cart. 761 . 266 28 8t. Tr. 51. . . . . . . . 181 Finlason . . . . . . . . . 180 7 Ont. App. Rep. 246 . . . 239.245 L. R.9 App. Cas. 117; 53 L. J. P. C.1 50L.T. 301 . . . 227, 250, 255, 258 13 U. C. Q. B. 515; 2 Cart. 616 . 244 48U.C.Q. B.164 . . . . . . 244 42 U. C. Q. B. 612; 2 Cart. 606 . 244 6 Can. 8. C. R. 52 2 Cart. 65. . . . . . 234,241,248 41 U.C. Q. B.291; 1 Cart. 709 . 245 2 Can. 8. C.R. 70: 1 Cart. 414 . 239 10Ex. 96 . . Lo... 244 R. v. Lake . . R. v. Lawrence . R. ». Prittie . RB. v. Robertson R. v. Roddy . R., Severn v. Radioff. BR. ». X11 TABLE OF CASES, Reed, A.G. for Quebec wv. . PAGES L. B. 10 App. Cas. 141; 52 L. T. 893 54 L,,J.P.C. 12; 33 W.R. 618 . 237 1 Pug. 278; 2Cart. 445 . . . . 247 L.N.211 . . . . . . . . 250 3Can. 8.C.R. . . . . . . 80,172 411 U. C. Q. B. 291; 1 Cart. 709 . 245 201. N.186; 2 Cart, 852. . . . 256 3L, N.155; 2Cart. 361. . . . 256 L. RB. 7 App. Cas. 829; 2 Cart. 12 46 L.T.N. 8.89 . . . . 228,250 24 L. C. J. 161; 2 Cart. 237 . 250, 251 Renaud, Ez parte . Rioux, Griffith v. Ritchie, Lenoir v. . Roddy, B.v. . . Ross v. Torrance . Royal Canadian Insurance Co. v. Montreal Warehousing Co. Russell v. Regina, . . . . . St Ann’s Mutual Building Society, MecClanaghanv. . . . . St Lawrence Navigation Co., Normando. « . + 4... Separate School Trustees of Belle ville ». Grainger . . . . Severn. R.. . . . . . . . Shields, Peek». . . . . . Smiles v. Belford . . . . Smith ». the Merchants Bank . South West Boom Co., McMillan Sulte, Corporation of Three Rivers Ve os s&s s «a Temple, Holmes». . . . . Temporalities Board, Dobie ». 5Q.L.R. 215; 2 Cart. 281 . . . 249 25 Grant 570; 1 Cart. 816 . . . 247 2 Can. 8. C. R.70; 1 Cart. 414 . 239 6 Ont. App. Rep. 639 . . . . . 251 L Ont. App. Rep. 436; 1 Cart. 576 268 28 Grant 629; 1 Cart. 828 . . . 249 P.and B. 715 . . . . . . . 240 5 L. N. 830; 12 Can. 8. C. R. 229, 258 8 Q.L. R. 857; 2 Cart. 8396 . . . 266 L.R.7 App. Cas. 186; 51L.J. P. C. 26 1Cart. 351; 46 L.T. 1 . . 229, 259 L. R.2 App. Cas. 102; 46 1. J.P. C. 1 35L, T. 640; 25 W.R. 216. . . 221 21. N, 186; 2 Cart. 852. . . . 256 5 App. Cas. 115; 49 L. J. P. C. 87 1Cart. 158 . . . . . . . 3Q.L.R. 157; 2 Cart. 343. . . 4O0nt. Rep. 713 . . . . . . . 2 Ont. Rep. 118; 2 Cart, 605 {R.and G. 812. . . . Russell's Eq. BR. 137 . . . . . 252 17Ir.Com. L.R.618. . . . . 180 2 Can. 8. C. R. 158; 2 Cart. 220 . 67 27 St. Tr. 765 180 Théberge v. Landry . Torrance, Ross v. . Valin v. Langlois Watson, Cotév. . . . Wetherell and Jones, Re Wilson ». McGuire . . . . Windsor and Annapolis Ry, Re Windsor and Annapolis Ry. Co., Murdoch #. . . . + . . . Wodehouse (Lord), Luby», . . Woodworth, Landers v.. . . Wright ». Fitzgerald . TABLE OF STATUTES. I. IMPERIAL ACTS. 16 Car. 2c. 1 . 6W.&M. c.2. 14 Geo. 3c. 83 . 31 Geo. 3c. 31 . 1&2Vie.e.9 . 8 &4 Vie. c. 35. 9 & 10 Vie. e. 94 10 & 11 Vie. ¢. 71 12 & 18 Vie. ¢. 29 12 & 18 Vie. ¢. 66 21 & 22 Vie. c. 78 29 & 30 Vie. c. 67 . 21 & 22 Vie. ce. 99 28 & 29 Vic. ¢. 63 . 80 & 31 Vie.c. 8 . . 8. 9 8. 11 8 12 8 15 8.16 8. 17 g. 18 8. 20 8. 22 8. 23 8. 26 3. 29 3. 30 5.81 8. 82 8. 33 8. 34 sg. 35 Meeting of Parliament Meeting of Parliament Juebec Act, . . Yonstitutional Act, 1791 Juspension of Canadian The Union Act of 1840 dower to impose duties Jurrender of Civil List Javigation Laws . . Post Office . . . Privileges . . 3Iritish Columbia . 3ritish Columbia . . Talidity of Colonial Laws 3. N. A. Act, 1867: Txecutive power . drivy Couneil . . . . Powers of Lieutenant-Governors Vlilitary forces . . eat of Government. Legislature . . . drivileges . . . 7early sessions . Jumber of Senate Senators . . . . Additional Senators . jenate, Tenure of Office Jenate, Resignation. . jenate, Vacating seat . - 3enate, filling up vacancies jenators, qualifications . Speaker of Senate . Juorum of Senate Constitution . PAGES 52 52 5 "0 21 20 157 Lo. 8 29, 80, 31 294 Lo... 184 . 168, 182, 183 . L187 169, 210 229, 266 110 40 186 Lo. 142 144, 145, 164 164 147 147 148 C147 145, 230 CL. 147 116, 147, 230 LXV TABLE OF STATUTES. 30 & 31 Vic. c. 3 8. 36 1. 38 3.41 3.44 3.45 1, 46 3. 47 3, 48 3. 50 3. 54 8. 55 8. 56 3. 57 8. 58 8. 59 8. 60 5. 70 3, 72 8. 73 8. 74 8.77 3.78 1, 87 3, 88 3. 90 1.91 1) a PAGES Vote of Speaker. . . I £1 § Summoning House of Commons . . . .110, 164 Tlection Laws . . . . . . 216,231, 243, 245 Tlection of Speaker . . . 138 Tlection of Speaker . . 138 jpeaker presides in House 139 \bgence of Speaker. . . 231 Juorum of Commons . . . . oo. 116 raration of House of Commons . 121, 122 Money Bills . . . . . 82, 164, 185 \ssent to Bills . . . . 110, 165, 271 disallowance of Bills . . . 271, 272 Disallowance of Bills . . 271, 272 “ieutenant-Governors . . 181, 188, 263 Lieut.-Gov., Tenure of Office 83, 173, 263 ieut.-Gov., salary. . . . 230, 242 Juebec, electoral districts 63 Juebee, Legislative Council. . . 230 Juebee, qualification of Councillors . 4 Juebee, disqualifications . . . 74, 76 ipeaker in Quebec Council . . 75, 82 Juebec Council, Speaker . . ZN 75 issembly, quorum . . . . Ce... 66 Legislatures of N. 8S. and N.B.. . . . . . 230 >rovineial Aets . . . . + . . . . 174,269 >owers of Dominion Parliament 225, 226, 250, 265 Public Debt and Property 233. 235 “rade of Commerce . 253 Paxation . . . . 235 3orrowing money . 235 Post Office . . . 240 Jensus, Statistics 241, 242 Militia and defence . 239, 266 Salaries of Civil Service 241 3eacons and buoys. . 240 Navigation and Shipping . . 240 Juarantine and Marine hospitals 239 Sea Coast and Fisheries - 241 Ferries. . . . . . 240 Jurrency and Coinage 256 Banking, paper money 255. 256 Savings banks . . . 256 Weights and Measures 242 Bills of Exchange .- 256 Interest . . . 256 Legal Tender .. . 256 Bankruptcy . 247, 250, 253 Patents . 955 1 '" £) (9) 10) 11) 12) 13) 14) 15) 16) 17) 18) 19) 20) 21) 199) - 30 & 31 Vic. ce. 3 8. 91 (23) (24) (25) (26) (27) (28) 8. 92 (€, (9) (10) 1) (12) (13) (14) (15) (16) 8. 93 8. 95 88. 96-100 8. 101 5. 102 8. 105 8. 108 8. 109 gs. 110-116 8. 117 8.121 g 122 8. 125 8. 126 8. 128 8. 132 31 & 32 Vie. ¢. 105 32 & 33 Vie. ec. 11 . . 33 & 34 Vic. c. 14 . c. 52 . . c. 90 . ¢. 102 34 & 35 Vic. c. 28 . ec. 83. . c. 110 TABLE OF STATUTES. XXV PAGES Jopyright . . . 255, 268 ndians . . 246 Jaturalisation . . 246 fiarriage and Divorce . 246 iriminal Law . . 242 ’gnitentiaries . . . 243 Jowers of Provincial Legislatures 227 umendment of Constitution 230 direct taxation . . . 235 Jorrowing money . 235 rovincial Salaries . 242 Jublic Lands. . . 233 Yeformatory prisons 243 Jospitals . . . . . 240 funicipal Institutions 257 dcences . . . . . . 235 Vorks and Undertakings 240 jompanies . . . . . 256 fdarriage . . . . . Lo. 246 ‘roperty and Civil rights . . 247, 248 \dministration of justice , 242, 243, 244 Inforcing Provincial laws . 243, 244 0cal and Private Matters coe eo. 257 fducation . . . . . . 170, 246, 267 wgriculture . . . . LL... oo... 256 \ppointment of Judges . . . 170,222, 242, 243 Istablishment of Courts . . . . . . 216, 242 Yebts of the Provinces . . , . . . . . 234 ialary of Governor-General . . . 164, 230, 242 *ublic Property . . . 233 >rovincial Revenues . . 234 ’rovincial Debts . . . 236 ower to take land . . . . . 234 Taxes on Canadian Products 235, 266 Justoms and Excise . . . . 285 Faxation of Public Property 235, 266 >rovincial Revenues . . 234 Jath of Senators . 259, 266 Treaty obligations . 233 Ruperts Land Act 27, 28 Merchant shipping 268 Naturalisation . 268 Extradition . . . . 268 Foreign Enlistment Act 268 Naturalisation . . . . . « . . 268 New Provinces. . 40, 142, 229, 230, 232, 233, 266 Privileges . . . . 157 Merchant shipping . 268 XX V1 35 & 86 Vie. ¢. 45 . 87 & 38 Vie..c. 27 38 & 39 Vie. c. 53 . c. 38 c. 80 c. 88 12 & 48 Vie. ¢. 29 . c. 72 . 43 & 44 Vie. c. 16 e 18. ec. 22 . c. 43 . 14 & 45 Vie. c. 69 . 45 & 46 Vie. ¢. 76 . 16 & 47 Vie. ¢. 30 . c. 41 47 & 48 Vie. ¢. 31 . i8 & 49 Vie. c. 49 e. 74 . 49 & 50 Vie. c. 33 . c 35. c. 48 . 50 Vie. 6.3 . . 50 & 51 Vie. ¢. 59 . TABLE OF STATUTES. Treaty of Washington Jolonial Courts . Copyright . Privileges . . . Vlerchant shipping Unseaworthy ships Marriages on ships Shipping casualties Merchant shipping Merchant shipping Merchant shipping Merchant shipping fugitive offenders Merchant shipping . Jompanies Register Act Merchant shipping . Jolonial prisoners Telegraphs Evidence . Jopyright . Privileges . Medical Act . . Jubmarine Telegraphs Meeting of Parliament PAGES 268 268 . 268 117, 282 268 268 268 268 268 268 268 268 268 268 268 268 268 269 268 . 268 40, 142, 230 268 268 59 II. CANADIAN ACTS PRIOR TO CONFEDERATION. 19 & 20 Vic. ¢. 140 . Election of Councillors . 20 Vie. 6. 22. . . . Disqualification of Members 20 | R84 III. DOMINION ACTS. 31 Vie. c. 10. 31 Vie. ¢. 25. 31 Vic. e. 39. 31 Vic. ec. 42. 31 Vic. ¢. 43 . 31 Vic. c. 49. 31 Vie. ¢. 52. 31 Vie. e. 53 . . 32 & 33 Vic. c. 3 32 & 33 Vic. c. 4 34 Vie. c. 58, 46 . 26 Vie. c. 4 Post Office . . . . Disqualification of Members Department of Justice Jecretaxry of State . Justoms . . . mnland Revenue. . . . Department of Public works Department of Agriculture Manitoba and N. W. T. Department of Finance Regulation of banks . Department of Interior 204 184 206 193 197 196 202 Lo... 208 41, 52, 72, 232 198 249 105 FABLE OF STATUTES. 37 Vic. e. 10. 38 Vie. e. 2 38 Vic. ¢. 11. 38 Vie. ¢. 16 . 39 Vie.e. 7 . 41 Vic. e. 5 . . 42 Vie.o. 7 . . 42 Vie.e. 7 . . . 43 Vie. e. 27 8. 17 43 Vic. e. 28. . . 46 Vic.e.6 . . . 47 Vic. ec. 148. 4 8. 9 8. 10 . 8.15 . 8.16 . 48 & 49 Vic. c. 48.11 ec. 408.7 49 Vie.¢.3 . R.8.C.c.48.3 . R.8.C.e.5. . . gs. 11-32 ss. 83, 34 R.8.C.c.6. . . . R.8.C.e.7. . + R.8.C.c. 88s. 4-5 8 20 . 8.42 . 8.96 . 8. 98 . Rlection Petitions . . . . « Jupreme and Exchequer Courts jupreme Court . . . - nsolvency . + . - Nitnesses. . « « « Disqualification of Members Receiver-General . . . «+ . Department of Railways and Canals. Franchise in N. W. T. . ‘ndians +. . . ndisng +. « » + Disqualification, Militia disqualification, Salary . . disqualification of Contractors Disqualification, Shareholders Disqualification, penalty. . Jualification of voters }ace of voting . . 3lections . . . Jglaries of Ministers . . Joters in P. BE. I. and. B. C. ndisn voters . . . Appeals of voters . . epresentation in N. Ww. T. Representation in N. W. T. Day of nomination . . Jualification of Members Toters disqualified . . lorrupt practices . . Jorrupt practices . . ontroverted Elections Act? dissolution . . + + >ayment of Members . . disqualification of Members 3e-election of Ministers . Micers disqualified . Qualification of Senators Payment of Members . Jualification of Members disqualification, Members Deposit by Candidate . . fgsue of Writ. . Deposit by Candidate . Tlections, use of flags . Elections, closing of Taverns Corrupt practices . Expense of Elections . Absence of Speaker R.S.C.e.9. . . R.S.C.e. 118.1. a. 6 . 89. 8.9. 8. 17. 8 18. . ss, 24-33 R.8.C.e. 13 . . 8.4 . 8.8. 8.9. . 88. 19-23 8.81 . 8. B3 88. 84-99 88,121-123 R.8.C.c. 1488. 1,2 XXVil PAGES 245 , L243 41, 160. 216 221 157 184 198 204 . 60 56, 213 56, 213 129 129 129 129 £30 26 26 41 184 126 127 . 128 122, 124 124, 126 . 130 128. 130 126 130 130 138 122 118 129 184 129 145 118 128 129 134 132 134 136 136 136 13¢6 139 xxviii TABLE, OF STATUTES. R. S.C. c. 14 88. 5-7 . 8.8. 8. 12. PAGES . 141 129 140 214, 215 190 192 191 191 191 191 192 207 194 196 208 209 198 199 202 200 do. 201 do. 201 do. 202 R. 8. C.c. 32 Customs . . 198 R. S.C.c. 34 [nland Revenue 197 R.S.C.c. 35 Post Office . 204, 205 R. S. C. c. 36 Public works . . 202, 203 R. S.C. c. 39 Ixpropriation Act . 204 R.S.C.c. 41 . Militia Act 169, 210 BR.S.C.c. 418.10 Levée en masse . 211 3.11 Persons exernpt 211, 212 3, 12 Active Militia 212 3.18 Period of service 212 3. 16 Military districts 211 3. 20 Roll of inhabitants 211 8. 21 Claim of exemption 211 5 30 Making up Company 212 3. 32 Substitutes . . . 212 5. 34 Salling out by officer . . 213 8, 59 Service of Reserve Militia 213 8. 78 Jalling out Militia . . 213 R.8.C.e. 43 . . ndigng . . . . 214 R.S.C.c.45 . . . Mounted Police . . . 208 R.S.C.c. 508.7 . . Councillorsin NNW. T.. . . 75 g. 18 . Distribution of seats in N. W. T.. _ . 64 R. 8. C. c. 5088.20-23 Councillorsin N. W.T. . . . . . . 75 6.25 . Durationof N.W.T.Couneil . . . . . . 52 38. 41-50 Courts in N. W. T. . 107, 108 R.8.C.c.16 . R.8.C.e. 17 . 8. 4 8. 11 8. 13 8. 35 R.8.C.c. 17 5.37 8. 43 R.S.C.c. 21 R.S8.C.c. 22 R.S.C.ec. 23 R. 8.C.ec. 24 R.S.C.c. 25 R.S8.C.c. 28 R.S.C.c.288.5 . R.S.C.e.29 . R.8.C.e.53 . . . R.S.C.e. 135 . . gs. 23-31 s. 38 . 8.70 . ‘ . 8s. 72-74 R. S.C. c. 18588. 66-75 Ce. 1858.71. R.8.C.c. 188 . . . R.S8.C.c. 188 . R.8.C.c. 174 . c. 176 . c. 178 . . 49 & 50 Vic. c. 6 c.8 50 & 51 Vie. c. 8 . c.4 . e. 10 . e., 11 . e. 10 . e. 11. c. 12 . ec. 13 . } e. 14 . 51 Vie. ec. 11 . ce. 17. oa 50. TABLE OF STATUTES. Reewatin Aet . « - + Supreme and Exchequer Courts Appellate jurisdiction . . Jrivate Bills . . . + - sppeals from Exchequer Courts 7alidity of provincial laws . Jupreme Court . . . - Appeals to Privy Council Removal of judges . . \ppointment of judges ystices . o.oo + do. PR do. i wom os oe Jisqualifications of voters Yisqualifications of voters enators for N. W. T. Jouse of Commons Justoms-and Revenue do. . Trade and Commerce . [rade and Commerce... . . - - Department of Trade and Commerce Treasury Board . . - « - Solicitor-General . Elections . . « « Printing, Department of North West Territories XIX PAGES 36 216 218 218 218 219 220 220 170 222 109 108 108 127 127 142 123 193 198 183 183 208 198 206 vi ¥ OR 1928. 103 IV. PROVINCIAL ACTS. i. BRITISH COLUMBIA. ORDINANCES. Lst March, 1870 . . Supreme Court . 29nd Avril. 1870 . . do. STATUTES. 84 Vie, c. 42. . . . Lieutenant-Governor Consoumatep Srarurss, 1877 (40 Vie.). c. 42 The Constitution Act of 187! es. 10-24 Disqualification of Members sg. 33-35 Speaker + +. » - © 8.89 . Quorum . . . «© g. 45 . Annual sessions. . - aq. 48-50 Resignation of Members . 1.05 05 1% 63 66 52 52 XXX TABLE OF STATUTES. ConsornivaTep Srarvres. 1877 (40 Vie.) c. 42 ss. 63-68 Payment of Members 83, 72-78 Privileges . . . . 42 Vie. c. 8 . Distribution of seats c. 12 - Franchise . . . 45 Vie. ¢. 8 Supreme Court . . 48 Vie. c. 4 Distribution of seats c. 6 Supreme Court . 49 Vic. c. 3 Ib. . . . . c. 6 Small debts Court 50 Vic. c. 8 Supreme Court . ii. MANITOBA. 33 Viec.e.3 . . . . Number of Senators . . 39 Vie.c. 28. . . . Abolition of Upper House CONSOLIDATED STATUTES, 1880. ¢.3 . . . . Franchise. . . . c. 488. 8-22 . Payment of Members 8. 93 . . Election petitions . e. 58.2. . . Distribution of seats s.4 . . Speaker . . . . . . ss. 7-14 Disqualification of Members 8s. 23-26 Resignation of Members ss. 36-41 Privileges . . . . . 8. 113 . Qualification of Members c. 318.24 . Appeals . . . . ¢. 34 8. 202 Jourtof Q. B. . . 44 Vic. c. 128.1 . Distribution of seats 8.4 . Juornm . . 86 . Franchise . . ec. 288.93 . Surrogate Court } s. 123 Whe « = + 48 Vie. c. 15. Jueen’s Bench c. 16. Agsizes. . ec 22. County Conrts iii. NEW BRUNSWICK. 31 Geo. 3 ec. 5 Divorce . . 35Geo.8¢.2 . . . County Courts 23 Vie.c. 387. . . . Divorce . . 30 Vie.e. 10. . . . County Courts 86 Vie. c. 31. Supreme Court CONSOLIDATED STATUTES, 1877. c. 48 2 . Appointment of Councillors 8.3. . Disqualification of Councillors 8.4. . . Oathof Councillor. , . . 8.5. . . Resignation of Councillors 8.7. . . Speaker PAGES 53, b4 69 64 60 105 64 105 105 104 105 . 142 72. 230 59, 60 53, 54 104 64 66 63 TL 68, 70 61 104 £04 64 66 60 103 104 103 104 1092 100 100 100 101 101 74 74 74 76 = ABLE OF STATUTES. 1877. Juorum . + + + ¢ Dath . . . - - - lesignation of Members Jumber of Members . duration of Legislature Speaker of Assembly Supreme Court Divoree Court Jounty Courts robate Courts 2arish Courts 2arish Courts justices + >robate Court . Payment of Members Jupreme Court . be oo 0 ee Parish Courts . . Supreme Court . . . - Qualifications of Members Supreme Court . . County Courts . CONSOLIDATED STATUTES c. 48.8 . - g. 11. 8. 76 8. 79 a. 80 c.6 . . c. 37. . e. 50. . e.51. . . e. 52. . ce. 53-57 c. 59. ce. 60. 11 Vie. ¢. 30. 42 Vie. ¢. 3 . ce. 7,8 43 Vie, e. 10. c. 12. 44 Vie. ec. 12. 45 Vic. ¢. 21 . 49 Vie. e. 9 . c 18. iv. NOVA SCOTIA. 48 Vie.e.2 . . . . Franchise . . . - Revisep Statores, 1873. c. 126 5. 10 . Divorce Court REvisED STATUTES, 1884 e.8s8.1. . 83. . 810 . s. 11 . 88. 20-40 . c.48.14 . 8. 67 ec. 100 . . 6. 1028.1. ec. 104 . . . c. 1058.2 8. 16 ec. 111 . 49 Vic. c.6 . . . . ce. 49.50 . sppointment of Councillors Qualifications of Members Duration of Legislature . Disqualification of Members drivileges . + + © franchise . + - Franchise . Probate Court Justices . Jupreme Court County Court Jounty Court Controversies with Dominion Of disqualification of Members Jounty Courts . - v. ONTARIO. flectoral divisions . Supreme Court . 38 Vic. c. 28.1. . . 44 Vie. ec. 5 . . . . xxx1 PAGES 75 sp 33 32 36 "=00 01 20 og 99 99 100 54 101. 102 102 . 99 101, 102 61, 62 102 101 7 . 74 61, 63 50, 52 62 69. 70 57 80 ag ~7 98 a7 97 219 62 7 63 35 XXX11 TABLE OF STATUTES. 48 Vic.¢. 28.7. . . Electoral divisions. . Ontario Revisep Statutes, 1887. ¢. 98.83. . . Qualification of Members 8s. 4-7 . . Franchise. . . . , ils. 1 . . Wlectoral divisions. . . 8.2 . Duration of Legislature 83 . Digsolution . . . . . ss. 6-14 . Disqualifications of Members 8.156 . . Qualifications of Members 8.25 . . Resignation of Members 88. 29-86 Speaker of Assembly . 58. 87-55 Privileges . . . 8.56. , Quorum . ., . . s8. 62-70 Payment of Members . c. 12 8. 86. Annual sessions. . . ce. 27. . Devisee Commission Court s. 41. -. Appeals to Privy Council c. 42. Court of Appeal c. 43. Maritime Court . c. 44 . Court of Appeal c. 47. County Courts e. 50. Surrogate Court ce. 51. . Division Courts e 137 . Surrogate Courts c. 224 Education. . vi PRINCE EDWARD ISLAND. Divorce Court . . . Supreme Court . . . Qualifications of Members Resignation of Members Duration of Legislature Jmall Debts Court . Franchise . . . . . Election of Councillors . . Disqualifications of Councillors Election of Councillors Resignation . . Speaker . . . Juorum , Supreme Court Surrogate Court. Justices . . . . . . Digqualifications of Members County Courts . . . Franchise . . Franchise. . . . . . . Disqualifications of Members 5 Will, 4¢.10 . 11 Vie.c. 6 . . 19 Vie. ¢. 21 8. 12 8. 79 8. 86 . 23 Vic.e. 16. . . . 24 Vic.c. 34. . . 25 Vic. ¢. 18 8s. 3-6 8s. 11-16 s. 17 . 8.19 . 8. 27 . 8, 29 32 Vic. ec. 4 36 Vie. ¢. 21 87 Vic. c. 1 39 Vic. c. 3 41 Vie. c. 12, c. 14. 42 Vie. c. 2. c. 18 . PAGES 63 61 al 83 52 30 62 66 at . 66 68, 70 . 66 58, 54 52 95 96 219 94 26 96, 2 M4 87 106 107 61 71 52 105 59 "5 76 75 75 107 106 105 62 106 59 59 62 42 Vie. ¢. 16 . 45 Vie. ec. 1 46 Vie. c. 6 . 50 Vie. e. 1 TABLE OF STATUTES. Supreme Court . Franchise . . Supreme Court . . . Resignation of Members xxX1il PAGES 107 5% 107 7 vii. QUEBEC. 34 Vic.e.4 . . 37 Vic.e. 6. . 88 Vic. ¢. 788. 7-9 8. 11 8. 124 39 Vie.e. 7 . 43 & 44 Vic. ec. 4. . 44 & 45 Vic. c. 7s. 1 8. 2 19 & 50 Vie. ¢. 97s. 4 s.4 . 8.7 . . ss, 23-27 gs, 46-56 ag. 70-74 Jourt of Review . appeals . . - franchise . fy Jualification of Members Jtamp Act . . . - Jourtof Q.B. . . . Duration of Legislature . Digsolution . . , + \ppointment of Councillors Disqualification of Members Jpeaker . . . - + =~ Resignation of Members - Privileges . + - + Payment of Members . 50 Vic.e,11 . . . . . Superior Court . . . Civil Code of Procedure, Arts, 483 Court of Review . 1053-1058 Circuit Courts 1114-1116 Appeals to Q. B.. 1133 do. Lo. 1188-1189 Commissioner’s Court 1216 Justices. . . 1217 Recorders . . 1918 Trinity House 9 91 1 50 61 136 52 wer) 62 pa 6¢ 58. 54 aC “1 4 89 89 89 89 CANADIAN REPORTS REFERRED TO. Can. S. C. R.......Supreme Court of Canada. Cart. ...............Cartwright’s cases decided onthe B. N. A. Act, 1867. Dor. App. .........Dorion’s Quebec Appeals—Queen’s Bench, Quebec, Appeal Side. Grant ...............Grant’s Chancery Reports, Ontario. Hannay ..... ......Hannay’s Reports of the Supreme Court of New Brunswick. L. C. J. ............Lower Canada Jurist. L.N. ...............Legal News, Quebec. Ont. App. .........Reports of the Court of Appeal of Ontario. Ont. Rep. .........Reports of the High Court of Justice, Ontario. Pug...................Pugsley’s Reports of the Supreme Court of New Brunswick. Pug. and B. ......Pugsley’s and Burbidge’s Reports of the Supreme Court of New Brunswick. Q. L. BR. ............Quebec Law Reports. R. and C. .........Russell and Chesley’s Reports of the Supreme Court of Nova Scotia. R. and G. ........ Russell and Geldert’s Reports of the Supreme Court of Nova Scotia. U. C. C. P. ......... Reports of the Court of Common Pleas, Ontario. U. C. Q. B..........Reports of the Court of Queen’s Bench, Ontario. Steph. Dig..........Stephen’s Digest of Quebec Reports. ABBREVIATIONS. ADSOD..onrioiesivensen. Liaw and Custom of the Constitution by Sir W. R. Anson. Oxford, 1886. B.C. ......ooerureer oor. British Columbia. B. C. Consol. Stat.........The Consolidated Statutes of British Columbia. Victoria, 1877. B. N. A. Act................ British North American Act, 1867. Bourino........ .--......... Parliamentary Procedure and Practice in the Dominion of Canada by J. G. Bourinot. Montreal, 1884. Can. Com. J................Journals of the Canadian House of Commons. C. 0. Regulations ........ Jolonial Office Regulations. Can. Sess. papers........ Sessional papers of the Dominion of Canada, 1872—88. Cases decided on the B. N. A. Act 1867, in the Privy Council, Supreme Court of Canada and the Provineial courts. Toronto, 1882. Christie ..................... History of the late province of Lower Canada, Quebec, by Robert Christie. Montreal, 1848—55. Civil Code ..................The code of civil procedure of Lower Canada. C. 8. N.Be.................The Consolidated Statutes of New Brunswick. Debates on Confederation .... ... Parliamentary Debates on the Confederation of the British North American Colonies. Quebec, 1865. Dom. An, Reg. ............Dominion Annual Register, &e. by IH. J. Morgan, 1878—86. Garneau .........Histoire du Canada depuis sa decouverte jusqu’a nos jours, par I. X. Garneau. Quebec, 1852. Haliburton .... ...An historical and statistical account of Nova Scotia by Thomas C. Haliburton, 2 Vols. Halifax, 1829. M. or Man................... Manitoba. Man, Consol. Stat. ......The Consolidated Statutes of Manitoba, 1880. May....... ...A treatise on the law, privileges, proceedings and usage of Parliament by Sir Thomas Erskine May. Cart. .... XXXVI ABBREVIATIONS, N. S. Rev. Stat............ P. E. I Rev, Stat. ........ New Brunswick. Yova Scotia. Che Revised Statutes of Nova Scotia, 1884. North West Territories. Ontario. The Revised Statutes of Ontario, 1887. Prince Edwards Island. The Revised Statutes of Prince Edward’s Island, 1856. P.C...... revere ven enne Privy Council. Drivers. SUODES, R.S.C. .......ereeveevn.n... I'he Revised Statutes of Canada, 1886. 3.0... eeereieeieer... Standing Orders. CHAPTER 1. INTRODUCTION, ON the 1st day of July in the present year (1888) the Canadian federation attained its majority ; twenty-one years having elapsed since by an Order in Council the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick were formed into the Dominion. Twenty-one years is not a long period in the life of a State, and it is not to be expected that the Constitution of Canada will prove as instructive a subject of study as that of the United States with its hundred years of growth and development. But in many respects the Canadian Constitution offers a special field for the inquirer. It is a successful effort to solve the problem of uniting distinct states or provinces under a central government. A similar task had already presented itself to an English speaking people, but the conditions of the problem solved in Canada differed in many respects from the conditions that faced Washington and his associates. While the American States had to create not merely a central government but a government which, within the limits laid down, should be supreme, the Canadian Provinces had to organize & Union subject to a supreme Executive, Legislature and Judicature all of which already existed. The executive su-Premacy of the Queen, the legislative power of the Imperial Parliament, and the Judicial functions of the Privy Council nw INTRODUCTION. remained unaffected by the Union, and this to some extent simplified the work to be done. Dif. Tt has been more than once stated that the Canadian ferences Constitution is a mere copy of the American. Such a Dm g Statement is very far from the truth. That the framers of the Quebec resolutions adopted portions of the Amerisan system is undoubted, but every care was taken to avoid those weak points in that system which the experience of years had brought to light. “We can now,” said Sir John Macdonald when moving in the Legislative Assembly Jf Canada the resolution in favour of the Union, “take advantage of the experience of the last seventy-eight years uring which the (U. S.) Constitution has existed, and I am strongly of belief that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada the defects which time and events have shewn to exist in the American Constitution.” The election of a President for a term of four years, the independence of the President during this period both of his ministers and of Congress, and the delegation to the central Government of jefinite specified powers leaving the balance of legislative power in the States, are three of the most important characreristics of the United States Constitution. But not one of these principles was adopted in Canada. The Executive authority was vested in the Crown, represented in Canada by a Governor-General (appointed by the Crown), who is required to act by the advice of a ministry responsible to the Canadian Parliament. Specified powers only are given to the Provinces, the balance of legislative power being lodged in the Dominion or in the British Parliament, for the belief prevailed in Canada that the exceptional powers of the American States and the doctrine of state rights had been leading factors in bringing about the great Civil War. Further differences between the two Constitutions will be referred to later on, INTRODUCTION. The English Constitution and the Constitution of the BN different North American Colonies at the time furnished Constitumany suggestions which were embodied in the Act of Union, Ho The House of Lords was taken as the type of the Senate or Upper House, nomination for life being substituted for the hereditary principle. The practice of introducing money bills in the House of Commons on the advice of a minister was adopted, and the procedure of the British Parliament was followed as to the manner and method of passing bills. No important change was introduced in the constitu. tion of the executive or legislative bodies of the provinces, except that the province of Canada was divided into the provinces of Ontario and Quebec, and a separate constitution was given to each. During the years immediately succeeding the Union the Legisla-Dominion was chiefly engaged in the work of organization. ty of Different departments of state had to be created and appro- Dominion. priate duties assigned to each minister. From 1870 to 1878 arrangements were concluded that resulted in the admission of British Columbia, Prince Edward's Island, and the North West Territories into the Union, in the formation of the province of Manitoba, and in the organization of a government for the Territories. Under the term North West Territories was included all territory not within the jurisdiction of a province, and it embraced not only lands bordering on the Arctic Seas, but lands between the Eastern boundary of Ontario and the Western boundary of British Columbia, and extending as far south as the boundary of the United States. The acquisition of the Territories gave the Dominion juris diction from the Atlantic to the Pacific, and rendered possible the physical union of the provinces by means of the Canadian Pacific Railway. In 1875 the Dominion established a Supreme Court, but such Court, it should be remembered, is not “supreme” in the American sense of the term, as an appeal may lie, if 1—92 INTRODUCTION. not of right yet by special permission: of the Crown, from such Court to the Judicial Committee of the Privy Council. Subsequent years saw further results of activity on the part of the Canadian legislature in the establishment of a uniform slection law throughout the Dominion (1885) and in the revision and consolidation of all the statutes passed since 1867. a work not yet fully completed. In surveying a Constitution it seems desirable for many reasons to work upwards rather than downwards, that is to say, to begin with the local institutions and end with the sentral government. In the case of Canada this method is specially appropriate, as the legislative powers of the Dominion cannot be understood without reference to the powers of the Provinces. It also seems desirable before referring to the executive which administers laws or the judicature which enforces laws to deal with the legislature which enacts laws. In this work the Province comes under consideration before the Dominion and the legislature before the executive. General The general scheme of the Canadian Constitution may scheme of 10 described as follows. The Legislative power, subject alton. ways to the supremacy of the Imperial Parliament, is divided between a central legislature and the provincial legislatures. The Executive power in theory is lodged in the Queen, but in practice it is exercised by three executive bodies, viz. the Lieutenant-Governor with his Provincial Council, the Governor-General with his Privy Council, and the Queen with the English Ministry. The sphere of executive power in each case corresponds with the sphere of legislative power ; the supremacy of the Crown preventing or determining any executive conflict between the Dominion and a province. Each province establishes its own courts of judicature, but a Supreme Court, constituted by the Dominion, acts as a Court of Appeal, from which a further appeal may, INTRODUCTION. A under certain circumstances, lie to the Judicial Committee of the Privy Council. It follows from what has been said that a citizen of Canada Tee | is subject to three distinct legislatures, the provincial Legisla- tres. ture, the Dominion Parliament, and the Imperial Parliament, and to three distinct executive bodies, the Provincial Executive, the Dominion Privy Council, and the English Cabinet. If he thinks that in legislating on any matter affecting his rights the Dominion or the Provincial legislature has overstepped the limits of its powers, he may challenge the legality of the statute in a court of law, but as regards a statute of the British Parliament he has no legal redress. The decision of a Dominion court is as binding on him as the decision of a court of his province, and as the Sheriff and other officials who execute provincial judgments are ex officio officials of the Dominion, the Courts of the Central Government have the requisite machinery for exacting obedience to their decrees. Each province has the right of determining whether its Powers of legislature shall consist of one or two houses. In Ontario, Benin Manitoba and British Columbia the legislature consists of one house only. The qualifications of voters and of members is, as a rule, determined by the province. The legislative powers of a province are fixed by Imperial Statutes, and as far as possible are specifically enumerated. A province may legislate on property and civil rights, provincial lands, the borrowing of money for provincial purposes, direct taxation, public institutions, tavern licences, the incorporation of provincial companies, and the solemnization of marriage. All local works and undertakings as well as municipal institutions and “all matters of a merely local or private nature in the province ” are within its jurisdiction. In order to secure a uniform criminal law throughout the Dominion, criminal law and procedure have been placed under the Dominion, INTRODUCTION. stherwise the province has full jurisdiction in regard to the sdministration of justice, and may by fine or imprisonment enforce any law relating to any subject within its jurisliction. All laws require the assent of the Lieutenant-Governor of ‘he province, and power is given to the Governor-General so disallow any provincial law. Toran) At the head of the Provincial Executive is the Lieutenant-Governor, a Dominion officer, appointed by the Governor-(General. An Executive Council, selected by him on the same principles that govern the selection of the members of she English Cabinet, assists and advises him in administering public affairs. The Council holds office so long as it retains the confidence of the legislature; if such confidence be lost the members resign, and those who enjoy the support of the majority in the legislature take their places. The Lieutenant-Governor summons, prorogues and dissolves the provincial legislature, and discharges other important duties conferred on him by statute. pominion In framing the constitution of the central legislature the Lagiste- House of Lords seems to have been taken as the type of an Upper House, and the United States Assembly as the type of a Lower House. Some difference of opinion prevailed as to whether members of the Upper House should be elected or nominated, but it was finally decided that the nominative principle should be followed, and that as an hereditary body vas unsuited to Canada all appointments should be for life. A property qualification of 4000 dollars was imposed, and all senators were required to be not less than 30 years of age. The The number of senators was fixed at 72, and as it was Senate. rnd that the provinces in favour of union fell into three groups, viz. Upper Canada or Ontario, with its agricultural population and agricultural interests, Lower Canada or Quebec, with its special institutions and laws, and the maritime pro- INTRODUCTION. vinces, with their commercial interests, it was resolved that each division should be equally represented in the Senate by 24 members. On the formation of the province of Manitoba and the admission of British Columbia three members were assigned to each of these two provinces, and subsequently provision was made for the representation of the North West Territories by two senators, so that the normal number of the Senate is now 80. In the formation of the House of Commons it was deemed House of desirable to make provision for the adjustment of representa- Cains. tion to population, and for this purpose a simple and ingenious plan was adopted. The Province of Quebec or Lower Canada, which enjoyed a population of a permanent character, was taken as the starting point, and the fixed number of 65 members was assigned to it. To the remaining provinces were assigned as many representatives in proportion to their population as 65 bore to the population of Quebec. Adjustments of the representation took place after the census of 1871 and the census of 1881, and in 1886 representation was conceded to the North West Territories. The total number of members of the House of Commons is now 215. Taking the total population of Canada as 4,324,810 we have one representative for every 20,115 people as compared with one representative for every 155,465 in the United States. No attempt was made in 1867 to introduce a uniform Franchise franchise throughout the Dominion, but the precedent of the Canada Union Act of 1841 was followed, and a vote for the Dominion House of Commons was given to every man who in his own province was qualified to vote for his own provincial assembly. It was not until 1885 that the Dominion Parliament exercised its power of providing a general franchise for the whole Dominion. The franchise is now based on either ownership, or occupation, or income. The ownership or occupation of premises of the value of $300 in cities, $200 in towns, and $150 in other places confers the right to vote, INTRODUCTION. provided that in the case of occupation the occupation has lasted for one year. An income of $300 a year, or an annuity of $100 a year, if accompanied by residence of one year, also gives a vote. A son if resident with his father may besome qualified through his father’s ownership or occupation, and a fisherman can be placed on’ the register if he owns land, boats, or fishing tackle of the value of $300. Special provision is made for giving the franchise to Indians. Duration The duration of Parliament was fixed, subject to the power of Paxlia- of the Crown to dissolve it at any time, at five years. Previous to the Union the average duration of the legislature in the old province of Canada had been three and a half years. Since the Union there have been five parliaments, the first continued practically for five years, the second was dissolved within a year, the third had an existence of four years and Sve months, the fourth did not quite complete its fourth year, whilst the fifth, which met in Feb. 1883. was not dissolved intil 1887. In the constitution of the Executive the English Constitution has been followed. The executive power is vested in the Sovereign, who carries on the work of administration through a Governor-General, assisted by a body of ministers known as the Canadian Privy Council. The Governor-General is appointed by the Crown, and the ministers are appointed by the Governor-General. But in accordance with the principle of “responsible government” the Governor-General is by constisutional practice required to select as his ministers those members whose policy obtains the confidence of the House of Commons. The position of a minister is therefore similar to that of a member of the Cabinet; but whilst the English Cabinet is “unknown to the law,” the Union Act makes sxpress provision for the constitution of the Canadian Privy Council. Governor- In all matters not directly affecting Imperial interests the General. ~ _ _ . (lepneral is required to act by the advice of his Dominion Executive. INTRODUCTION. ministers. His power is therefore of a much more limited nature than that enjoyed by the President of the United States. The President during his term of office may act independently of his ministers, who are to be regarded rather as heads of departments than as advisers of the Chief of the State. The Canadian Parliament has full power to legislate on all Pope matters not assigned to the Provinces, and not directly or on indirectly reserved to the Imperial Parliament. Twenty-nine classes of subjects are enumerated in the Union Act of 1867 as within the legislative competence of the Dominion, but it 1s expressly declared that such enumeration shall not restrict the general power given “to make laws for the peace, order and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the Provinces.” The enumeration of specific subjects is therefore to be taken by way of illustration, or as throwing light on the specific powers assigned to the provinces. The Dominion legislature is restricted not merely by the provincial powers but by the express and implied reservations in favour of the Imperial Parliament. No duties as between the different provinces can be imposed by the Dominion, nor can the Dominion alter the leading principles of its Constitution. In such matters the Imperial Parliament alone can take action, and when, for example, it was thought desirable to provide for the representation of the North West Territories in parliament, an Imperial Act had to be obtained giving the requisite power to pass the necessary legislation. Comparing the powers of the Dominion Parliament with Dominion those of the United States Congress the chief differences are ment and as follows: ot 1. The only portion of Criminal Law delegated to Con- L Hig gress relates to counterfeiting securities and current coin of the 2, War. 3. State powers. Restrictions. 0 INTRODUCTION. United States, and to the definition and punishment of pirasles and felonies committed on the high seas, and of offences against the law of nations; whereas in Canada the whole Criminal Law, except the constitution of Courts of Criminal Jurisdiction, is practically within the jurisdiction of the Dominion. This course was adopted not from any distrust of the provinces, but from the desire to secure a uniform criminal code throughout the Dominion, so that a citizen in whatever part of the Confederation he might be would always know what was his position in regard to the Criminal Law. 2. Congress can declare war, a power that in Canada selongs to the Crown. 3. In the United States the powers not specifically delegated to the United States are within the jurisdiction of each State: in Canada the powers not specifically given to the Provinces are reserved to the Dominion. The Canadian prinsiple was adopted with the express object of strengthening the central government, and of preventing any question arising as to “state rights” or to the sovereignty of a prosince. The exercise of the power of the Governor-General to veto a Provincial bill, on the ground of its infringing the settled policy of the Dominion, has however brought about a sonflict between Manitoba and the Dominion, though such sonflict tends to be peacefully settled. 4. Certain restrictions exist on the legislative powers of Congress that are not found in Canada. That direct taxes should be in proportion to the census, or that no ex post facto law or bill of attainder should be passed, are principles binding on Congress but not on the Dominion Parliament. 5. There is another class of restrictions imposed on the egislative power of Congress which though they embody prinziples that have been incorporated into the law do not apply ;0 Canada. Canada respects freedom of speech, freedom of 1 Debates on Confederation, p. 41. INTRODUCTION. |B the press, the right of the people to assemble or to petition the Government; but whilst Congress cannot pass a law infringing these rights, the Canadian. like the British, Parliament may do so. 6. Congress with the assent of three-fourths of the States Awesd may amend its Constitution; the Dominion Parliament has Constino similar power. The Dominion may alter the franchise ton: or legislate on matters relating to the election of members of the House of Commons, but so far as substantial changes in the Constitution are concerned recourse must be had to the Imperial Parliament. It is naturally to be expected that difference of opinion fanaa would occasionally arise as to the limits of the Dominion and Provinces the Provincial powers respectively. The only serious conflict 393 Dex that has arisen is due to the exercise of the right of the Governor-General to veto a Provincial Act. In this respect the Governor-General by statute possesses a power that does not belong to the Crown. The Crown may veto an Act of the Dominion, but cannot veto an Act of a Provincial legislature. The number of Provincial Acts vetoed by the Governor-General is comparatively small, but the mere fact that the Governor-General, acting on the advice of his ministers, may find himself obliged to veto a Provincial Act on the ground that it is contrary to the “policy of the Dominion,” may give rise to a serious conflict of Provincial versus Dominion policy. In Canada, as in the States, the judiciary (including Judiciary under this term the Judicial Committee of the Privy Council) tends to occupy the most prominent place as the arbiter between Provincial and Dominion rights. The decisions of the Courts as to the limits of the legislative power of the Dominion and of the Provinces have been loyally accepted in Canada, as in the States, and as time goes on there seems every reason to expect that the importance and power of the 2 INTRODUCTION. judicature will be one of the most striking developments of the Constitution. The judges of the superior, district, and county courts of each province are appointed by the Governor-General. The independence of the judges is secured by making their office tenable only during good behaviour, by charging their salaries on the civil list, and by the provision that they can be removed only by the Governor-General on address to the Senate and the House of Commons. Ungepact, Some unexpected constitutional developments have ocnents. curred in Canada as in the United States. In the States there is no more characteristic feature than the growth of the power of the Senate as compared with the decreased influence of the House of Representatives. In Canada, on the other hand, the influence of the House of Commons has grown at the expense of the Senate. Two reasons may be assigned for this. In the first place the Canadian senators are nominated by the Governor-General as the representative of the Crown, whereas the American senators are elected by the State legislatures, and an elected body tends to become more powerful than a nominated body. The system of nomination is indeed sufficient of itself to explain the decadence of the Canadian Senate; but the election of senators by the State legislatures is not sufficient to account for the power of the American Upper House. Such a method of election is aot far removed from the method of nomination. The real ause of the predominance of the latter body seems to lie in the fact that all ministers and officials are appointed by the Senate though nominated by the President. No such power has been given to the Canadian Senate. All ministers and officials are appointed by the Governor-General as representing the Crown, though such appointments, when not the result of examination, are made on the advice of the Privy Council. A second unexpected result has been the conflict between INTRODUCTION. 13 at least one of the Provinces and the Dominion. When the framers of the Constitution provided that all powers not specifically delegated to the Provinces should remain with the Dominion, it was thought that all danger of conflict between the central authority and the province had been removed. The exercise of the Governor-General’s right of veto in the case of the Manitoba Railway Acts shewed that this was not the case, and that where the veto is exercised, not on the ground that the province has exceeded its legislative powers, but on grounds of “general policy,” a conflict may arise. It should be added that the Dominion is fully alive to the necessity of rarely interfering with provincial legislation, except where clearly illegal’. 1 See post, chap. xv. CHAPTER II CONSTITUTIONAL HISTORY OF THE PROVINCES. Tug Dominion of Canada as now constituted comprises seven organized Provinces, one organized District, and a vast extent of territory, sparsely inhabited, known as the North West Territories. A The area and population of Canada is as follows: Hon. Ontario .............. AEE AUEDEC ievverininiinriiiiiriinrieaenies Novo-Bootln: uremervperpepporinmasns New Brunswick ......ccoeveniiiiinnns MAnItoba .ivevereenrenriiiniranrariiine. British Columbia. ccccenveiarninnaes Prince Edward’s Island ........c.oeeee Keewatin North-West Territory and Islands Ares, square niles. 101,733 188,688 20,909 27,174 123,200 341,305 2,133 3,000,352 3.805.494 Population. 1,923,228 1,359,027 440,587 321,129 65,954 49,459 108,928 56,446 4.324.758 Union of Originally the Dominion was composed of the Provinces the Pro- . . veces. of Ontario and Quebec (previously known as Upper and Lower Canada respectively), Nova Scotia and New Brunswick. By an Imperial Order in Council’ dated the 23rd June 1870 the North West Territories were ceded to the Dominion as from the 15th July 1870, and a Canadian Act (33 Vic. c. 3) formed out of these territories the new Province of Manitoba. British Columbia was admitted into the Dominion as from the 20th July 1871 by an Order in Jee Appendix, ONTARIO AND QUEBEC. 15 Council’ dated the 16th May 1871, and Prince Edward's Island was admitted as from the Ist J uly 1878 by an Order in Council! dated the 26th July 1873. In 1876 the District of Keewatin was carved out of the North West Territories, and received a special form of government under the direction of the Lieutenant-Governor of Manitoba. By the British North American Act 1867 provision was made for the admission of Newfoundland, but it still remains a separate colony, though there is at present a movement in progress in the island in favour of Union. The following brief outline of the Constitutional history of the various Provinces may prove useful to the student. I. ONTARIO AND QUEBEC, After the conquest of Canada and its cession to England Constituby the capitulations of Montreal in 1760, confirmed by the gon fils treaty of the 10th Feb. 1763, the Crown by Letters patent °f Quebec. constituted the Province of Quebec. General Murray was appointed Governor, and he was ordered to execute his office according to his commission and the accompanying instructions and such other instructions as he should receive, and according to all laws made with the advice and consent of the Council and Assembly. Power was given to him, with the consent of the Council and as soon as the circumstances would permit, to call an assembly of the free-holders and planters, and until this was done the Governor and Council were invested with “authority to make such rules and regulations as should appear to be necessary for the peace, order and good government of the Province.” The Instructions required members of the proposed No as. assembly to take in addition to the oaths of allegiance and sembly Supremacy a declaration against transubstantiation, but the French population who were Catholics refused to take such 1 See Appendix, 16 CONSTITUTIONAL HISTORY OF THE PROVINCES. tests, and the assembly though formally summoned never met’. The government therefore remained in the hands of the Governor and the Council. The The Council consisted of the Lieutenant-Governors of Council. aro treal and Three Rivers, the Chief Justice, and eight sthers chosen from the residents in the Province’. It possessed legislative as well as executive powers: the Crown retaining the right to disallow all laws. Uncer- Great uncertainty prevailed as to what laws were actually tainty of in force in the Province. Some thought that the effect of the conquest and of the proclamation of the 7th Oct. 1763 was to establish the law of England in all its branches, ‘he French settlers maintained that the old Canadian laws cemained unrepealed, whilst some of the leading lawyers held that the result of the proclamation was to introduce the Criminal Law of England and to confirm the Civil Law of Canada. The Government of Quebec retained the above form .ntil 1774 when the English Parliament gave a new Constitution to the Province by an Act known as the Quebec path of Act®. Previous to the passing of this Act the Crown by and Wed. Order in Council had directed Attorney-General Thurlow derburne. 4 Qolicitor-Gieneral Wedderburne “to take into considerakon several reports and papers relative to the laws and courts of judicature of Quebec and to the present defective mode of government in that Province and to prepare a plan of Civil and Criminal Law for the said Province and to make their several reports thereon.” On the reports made in pursuance of these orders the Quebec Act was based. The mew constitution recognised the religion of the French population by relieving Catholics from the necessity of taking the test oath, and enacts that the English Criminal L Christie, 1. p. 50. 2 (farneau, 11. Pp. 87. 14 Geo. III. (i) c. 83, 4 Christie, 1. p. 27. ONTARIO AND QUEBEC. 17 law was to prevail in criminal matters, but as regards property and civil rights recourse was to be had to the laws of Canada which were based on the customs that the French settlers had brought with them. The legislative power was The Legis. placed in the hands of a Council appointed by the Crown, a consisting of not more than 23 and not less than 17 persons, No ordinance was to be passed unless a majority of the Council were present, and every ordinance was to be transmitted, within six months after its enactment, for His Majesty's approbation, and if disallowed was to be null and void from the time the disallowance was promulgated at Quebec. Shortly after the passing of the Quebec Act war broke Results of out between England and her American Colonies. One result on of the war was the immigration of a large number of British subjects into the Province. The new settlers located themselves chiefly in the west, along the banks of the St Lawrence, and in the neighbourhood of the lakes Ontario and Erie Serious complaints were made by the new British settlers of the state of affairs in the Province, and a demand was made for a constitution resembling that to which they had been accustomed. In 1791 a bill was introduced by Pitt dividing the Pro- Bill intro. vince into Upper and Lower Canada, the line of division 3a by being so drawn as to give a great majority to the British element in Upper Canada and a great majority to the French settlers in Lower Canada. The measure was strongly opposed by Fox, who urged that the separation of the English and French inhabitants was most undesirable, and that general and political expediency required that the French and English should coalesce into one body, so that the different distinctions of the people might be extinguished for ever. Many Cana. dians were opposed to the principle of the bill, and their { Christie, 1. p. 68, 18 CONSTITUTIONAL HISTORY OF THE PROVINCES, agent, Mr Adam Lymburner, a merchant of Quebec, was heard at the bar of the House of Commons. The Act was passed, and is known as the Constitutional Act of 1791% The Con- The Act divided Quebec into two provinces, Upper Canada oT, 1 1d Lower Canada. In each province the legislature was to consist of the Governor, a Legislative Council and a Legislative Assembly. The The Governor had power to give or withhold the royal Governor. ont to bills, or to reserve them for consideration by the Crown. He could summon, prorogue, or dissolve the legislature, but was required to convene the legislature at least once a year. TheLegis- The Legislative Council in Upper Canada consisted of le not less than 7, and in Lower Canada of not less than 15 members, chosen by the King for life, the Speaker being appointed by the Governor-General. The Legislative Assembly was in counties elected by 40s. Freeholders, and in towns by owners of houses of £5 yearly value and by resident inhabitants paying £10 yearly rent. The number and limits of electoral districts were fixed by the Governor-General. Lower Canada had 50 members, Upper ~anada 16 members, assigned to their respective legislatures. Non- The new Constitution did not prove a success. Serious gn differences arose between the Legislative Council and the ving Legislative Assembly in regard to the control of the revenue and supplies, differences which were aggravated by the confict that still went on between the French and English races. The state of Canada was brought before the House of Commons, but the House rejected the proposal to make any radical changes. The discontent resulted in the rebellion of 1887—8, and an Act was passed suspending the Constitution of Lower Canada? and under its provisions a special 1 81 Geo, HI. (i) ¢. 31, 2 1&2 Vie (ije. 9 ONTARIO AND QUEBEC. 19 Council was appointed to administer the province. Lord Durham was appointed Governor-General, and was intrusted with large powers as high Commissioner for adjusting the relations and government of the two provinces. On his arrival he. dissolved .the special Council and appointed a new executive, and then proceeded to examine into the causes of the failure of the Constitution of 1791. The result of his inquiries was embodied in the famous Durham report presented to Parliament in 1839, in which he recommended the union of the two provinces and the introduction of responsible government. Lord John Russell brought forward a bill to carry out the former of these recommendations, and the bill became law on July 23rd, 1840 This Act united the two provinces and established a The Legislative Council of not less than 20 members, appointed nas, for life by the Governor, and a legislative Assembly of 84 members, consisting of an equal number from Upper and Lower Canada. Toronto, Montreal and Quebec were to return two members each, certain other towns and the county constituencies one member each, power being given to the Governor to fix the limits of the constituencies. The number of representatives was not to be changed without the concurrence of two-thirds of the members of each House. A real property qualification to the amount of £500 was required of all members of the Assembly. As regards the revenue and expenditure certain fixed charges, amounting to about £75,000, were thrown on the consolidated fund, and all other expenditure was placed within the control of the Assembly. It only remained for the home Government to give effect Responsd to that portion of the Durham report which recommended the Be Dh introduction of responsible government, and in a Despatch 3 & 4 Vie. (i) c. 85. De 20 CONSTITUTIONAL HISTORY OF THE PROVINCES. dated the 5th Feb. 1841 Lord John Russell instructed the Governor-General to call to his Councils “those persons who by their position and character have obtained the general sonfidence and esteem of the inhabitants of the province,” and “only to oppose the wishes of the Assembly when the honour of the Crown or the interest of the Empire are deeply concerned.” For some years difficulties arose between the governors and the people as to how the principle of responsible government was to be carried into effect. At length Lord Elgin in 1847 was expressly instructed “to act generally on the advice of the Executive Council and to receive as members of that body those persons who might be pointed out to him as entitled to do so by their possessing the confidence of the Assembly.” hanes The Constitution of 1840 remained unchanged until 1853, Constitu- when, by a vote of two-thirds of the Legislature, the number Hon. of representatives was increased from 84 to 180, and the elective franchise was extended. Changes In the following year an Imperial Act was passed’ emin Legicla- powering the legislature to alter the constitution of the Legis-Council. {tive Council, and a Canadian Act was passed in 1856* making the members elective. The existing members were allowed to retain their seats, 48 elected members were added to the Council, and these elected members were to retain their seats for eight years. British subjects of the age of thirty years and owning real estate of the value of £2000 were eligible for election, and the qualification of electors was made the same as that required in the case of electors of she Assembly. Control of the civil list was surrendered to Canada in 18478. and of the Post Office in 1849% In the former year 1 17 & 18 Vie. (i) e. 118. 3 10 & 11 Vie. (i) e. 71, 2 19 & 20 Vie. c. 140. 4 12 & 18 Vie. (i) ¢. 66. ONTARIO AND QUEBEC. 21 the St Lawrence was freed from the Navigation Laws’, and the Colony obtained full power to reduce or repeal duties imposed by Imperial Acts on goods imported into CanadaZ. At the time of the Union of 1840 Lower Canada possessed Pao: the larger population, but in a short time immigration into Upper Canada gave that province an excess in population of 250,000 over its neighbour. A demand soon arose in Upper Canada for a redistribution of the representation, and “representation in proportion to population” became the important political question of the day. Parties at length became so balanced that from the 21st May, 1862, to the end of June, 1864, there were no less than five different ministries in office®, and the efficient conduct of public business became impossible. In 1864 the maritime provinces began to entertain the idea of a union, and on the defeat of the Taché-Macdonald ministry in June of that year overtures were made by the opposition to the Hon. John A. Macdonald which resulted in the formation of a coalition ministry pledged to the adoption of a federal union of all the provinces. Permission was asked to attend the Conference of the Charlotte. delegates of the Maritime Conference at Charlottetown, and ai delegates on behalf of Canada were also present at the ad- {oo journed Conference held at Quebec. Little difficulty was found in obtaining the adhesion of the legislature to the proposed scheme of confederation: the legislative Council by 45 votes to 15, and the Assembly by 91 votes to 33, adopted the address to Her Majesty praying her to submit an Act to the Imperial Parliament for the union of all the provinces®. In reading the list® of Governors of Ontario and Quebec List of it must be remembered that the Governor of the Province hind of Canada, was also Governor-General until the federation: 112 & 13 Vie. (i) c. 29. 2 9 & 10 Vie. (i) c. 94. 3 Burinot, p. 40, * Debates in the Parliament of Canada on Confederation, Quebec, 1865, 3 See Appendix. 29 CONSTITUTIONAL HISTORY OF THE PROVINCES. that in 1791 Upper Canada was made a separate province ander a governor or administrator: and that in 1840 the provinces of Upper and Lower Canada were re-united, only to be separated in 1867. 2. Nova SCOTIA. The province of Nova Scotia and the surrounding territory, including the present provinces of New Brunswick and Prince Edward's Island, though claimed by England on the ground of the discoveries of Cabot in the 15th century, were ceded to France by the treaty of St Germains in 1632. By the treaty of Utrecht the province was restored to England, but it was not until the year 1749 that any adequate attempt was made at colonization or the introduction of a settled form of government. A scheme for encouraging officers and privates then lately dismissed from the army and navy to settle in the province proved successful, and was carried into effect by the Honourable Edward Cornwallis, who was appointed Governor. Council On his arrival the new Governor formed a Council, and this formed by Council exercised both legislative and executive functions wollis. One of the instructions to the Governor was to establish Courts of Judicature, and after consultation with the Council he erected three courts, (1) a Court of Sessions, (2) a County Court for the whole province, which sat monthly and was invested with all powers of the Courts of King’s Bench (except criminal matters), Common Pleas and Court of Exchequer, from which there was an appeal to the General Court, and (8) the General Court, which was a Court of Assize and general gaol delivery, and a Court of Appeal from the County Court, and in which the Governor and Council sat with the Judges. In 1752 the County Court was transformed into a Court Haliburton’s Nove Scotia, 1. p. 140. NOVA SCOTIA. 23 of Common Pleas, and in 1754 a Supreme Court was substituted for the General Court. No formal constitution was conferred on Nova Scotia or on Cape Breton when that island was a separate province. The early constitution of the province is to be found in the commissions issued to successive Governors, in the Royal Instructions accompanying such commissions as modified from time to time by despatches from Secretaries of State, and in the Acts of the Legislature. From 1713 to 1758 the government consisted of the Govern. Governor or Lieutenant-Governor and a Council, and or- Jip om dinances were from time to time passed by such Council. In 1758. 1755 Chief Justice Belcher pointed out that the Government Commissions and the Instructions required all laws to be passed with the consent of an Assembly, and that therefore the ordinances of the Lieutenant-Governor and Council had not the force of law. This view was confirmed by the law officers of the Crown in England, and the Lords of Plantations required the Lieutenant-Governor to summon an Assembly after consultation with the Chief Justice. The following plan for an Assembly was eventually adopted Plan for by the Council after receiving the approval of the Crown: nly The Assembly to consist of 22 members, 16 to be elected by the Province at large, two by the township of Lunenburg, and four by the township of Halifax. Whenever 50 qualified electors had settled in any district which was erected into a township, such township to elect two members. The qualification for voting at an election or for sitting in the legislature to be, possession in the person’s own right of a- freehold estate within the district in which he voted or for which he should be elected. No person to be qualified to vote or to be elected who was a popish recusant or who was under the age of 21. Members absent from the province for two months to be liable to have their seats declared vacant by the Governor’, 1 Haliburton, 1. p. 209. Can. Sess. Papers, 1883, No. 70, pp. 14—16. 24 CONSTITUTIONAL HISTORY OF THE PROVINCES. Rirst| The elections were held, and on the 2nd Oct. 1758 the AsRag, Assembly met. On the dissolution of the second Assembly by the death of the King in 1760, the Council altered the distribution of seats, allotting two members to each of four counties and to cach of six townships, and giving Halifax four members. The representation was again altered in 1765 by the Governor and Council, the county of Halifax receiving four members, the town of Halifax two members, the other counties two sach, and the other townships one each’. Logis- The Council continued to exercise both executive and Council. legislative functions until 1838. In that year the Assembly passed a series of resolutions (afterwards rescinded) in which amongst other things they expressed the view that a separasion should be made between the legislative and the executive functions of the Council, similar to that effected in the Canadas in 1791 and in New Brunswick in 1832. The suggestion was adopted by the home Government, and in 1838 Instructions? were issued to Earl Durham, the Lieutenant-Governor, to appoint an Executive Council, not exseeding nine in number, and a Legislative Council, not axceeding 15. By the Commission given to Lord Monck? power was given to extend the number of the Legislative Council to 21. Cape Breton. As regards Cape Breton, which was annexed to Nova Scotia in 1763, the island was included in all the Commissions issued to the Government of Nova Scotia until 1784, when it was made a separate Government, but subordinate to Nova Scotia®. Major Desbarres was appointed Lieutenant-Governor, and he was assisted by a Council possess-+ Haliburton, 1. p. 244. * The Instructions are printed in Can. Sess. Papers, 1883, No. 20, p. 39. 3 dss. Jour., N. 8., 1862, No. 34. i See Despatch from Lord Sydney to Governor Parr, dss. Jour., N. 8,, 1841, App. NEW BRUNSWICK. 25 ing executive and legislative functions. Power was given to summon an assembly, but such assembly was never called. In 1820 the island was re-annexed to Nova Scotia’, The constitution of Nova Scotia, save as expressly altered by the B. N. A. Act, 1867, remains practically as it was at the time of the union. Though Nova Scotia was the first province to propose Confedeconfederation, the Government, deterred by the unfavourable ration. result. of the elections in New Brunswick in March, 1865, took no step to bring the Quebec resolutions before the Legislature until 1866, when a resolution in favour of confederation was carried by 31 to 15. 8. NEw BRUNSWICK. The present province of New Brunswick was originally part of Nova Scotia. In 1784 it was made a separate province, and in the following year the government was entrusted to a Governor and a Council possessing legislative and executive functions with power to call an Assembly of the frecholders®. The first Governor was Colonel Thomas Carleton, who re- Govermained in office until 1803. After he retired the govern- Carleton. ment was carried on by the President of the Executive Council, who during the war with the United States was a military and not a civil officer. In 1818 a regular Governor was appointed. The Council continued to possess legislative power until 1832, when a separate legislative Council was Legis. appointed. The executive occupied a very independent posi- iw tion, as the territorial revenue of the Crown was sufficient to defray the expenses of the civil list. The refusal of the executive to give the Assembly any return of the receipts and expenditure of the revenues from the Crown lands led 1 See Despatch of Earl Bathurst and Proclamation of Sir James Kempt, dss. Jour., N. 8., 1841, App. ? See Commission of Gov. Carleton, Can, Sess. Papers, 1888, No. 70, Pp. 47. 26 CONSTITUTIONAL HISTORY OF THE PROVINCES. to a deputation being sent to England to request that the control of the public revenues be vested in the Assembly. Control of The Colonial Secretary complied with the request, and issued finance. . tuctions to the Governor and Executive Council to surrender the territorial revenues in consideration of the grant by the Assembly of a liberal permanent civil list. Responsi The next step taken by the Assembly was to establish the OL ern. responsibility of the ministers to the Assembly. In 1847 ment. Parl Grey as Colonial Secretary forwarded a despatch to the Governor of Nova Scotia defining the theory of responsible government as applicable to the provinces. He laid down the principle that the executive councillors who directed the policy of the government should hold office only while they retained the confidence of the House, and that all government officials should be excluded from both branches of the legislature. In the following year a resolution asserting the application of the above principles was introduced and passed by a large majority of the Assembly, and from that time the responsibility of ministers was fully recognised. The Quebec resolutions for effecting a Confederation of the Provinces were brought before the people at the general election held in March, 1865, but a majority of the new Assembly proved hostile to the scheme. In the following year the Legislative Council passed a resolution favourable to the Union, and the ministry thereupon resigned. A general election immediately followed, and on the 30th of June a resolution in favour of confederation was carried in the Assembly by 31 votes to 8. A similar resolution was passed by the Legislative Council. 4. MANITOBA. By section 146 of the British North American Act, 1867, power was given to Her Majesty in Council, on address from the Houses of Parliament of Canada, to admit Rupert's Land and MANITOBA. oY the North West Territory, or either of them, into the Union on such terms and conditions in each case as should be expressed in such addresses and as Her Majesty should approve, subject to the provisions of the Act, and it was further declared that any Order in Council in that behalf should have the force of an Act of Parliament. In 1867 the Canadian Houses of Parliament adopted a Admission joint address to Her Majesty praying for the admission of the Terriabove two territories into the Union: but it was found that °F the then existing charter of the Hudson's Bay Company which owned and enjoyed certain rights over a portion of the territory in question, would prevent full powers of government and legislation over Rupert’s Land and the North West Territory being transferred to the Canadian Parliament. To remedy this state of things the « Rupert's Land Act, Dubus 1868,” was passed, enabling the Hudson’s Bay Company 186s. to surrender to Her Majesty and Her Majesty to accept a surrender of all their lands and rights enjoyed under their Letters Patent, provided that the terms and conditions on which Rupert's Land was to be admitted into the Dominion should be approved by Her Majesty and embodied in an address from both Houses of the Dominion Parliament. The details of the surrender being settled a second address was presented to Her Majesty in 1869, and on the 24th June, 1870, it was by Order in Council? declared that from the 15th day of July, 1870, the North West Territory and Rupert's Land were to be admitted into and become part of the Dominion. The admission was made subject to the terms and conditions contained in the addresses, but on looking at the addresses it will be found that the first address relating to the North West Territory contains only two clauses of importance, viz. (1) “the Government and Parliament of Canada will be Condiready to provide that the legal rights of any corporation, com- tions. 1 81 & 32 Vie. (i) c. 105. 2 See Appendix. 28 CONSTITUTIONAL HISTORY OF THE PROVINCES. pany or individual within the same shall be respected and placed under the protection of courts of competent jurisdiction.” (2) “That the claims of the Indian tribes to compensation for land required for purposes of the settlement will be considered and settled in conformity with the equitable principles which have uniformly governed the British Crown in its dealings with the aborigines.” The second address relating to Rupert's Land dealt mainly with the rights reserved to the Hudson’s Bay Company, but stipulated that claims of Indians to compensation for land required for purposes of settlement should be disposed of by the Canadian Government in communication with the Imperial Government. From the date of the admission the Canadian Parliament over the acquired legislative power over the newly admitted territories. a. By the Order in Council it was declared as regards the North West Territory that “the Parliament of Canada should from the day aforesaid have full power and authority to legislate for the future welfare and good government of the said territory,” and such Order in Council has by the British North American Act, 1867, the force of an Act of Parliament. As regards Rupert's Land the Order in Council was silent as to legislative power, but by the Rupert's Land Act, 1868, it was enacted as regards all territories belonging to the Hudsons Bay Company that «it shall be lawful for the Parliament of Canada from the date aforesaid (i.e. of admission) to make ordain and establish within the land and territory so admitted as aforesaid all such laws institutions and ordinances and to constitute such courts and officers as may be necessary for the peace order and good government of Her Majesty's subjects and others therein.” Soin Previous to the surrender of the North West Territories vernment an Act was passed by the Dominion Parliament providing 1 381 & 82 Vie. (i) ¢. 105, 5. 5. BRITISH COLUMBIA. PANY EA for their temporary government, and the first Lieutenant- of the Governor was appointed in 1869. The outbreak of the in- rories. surrection among the half-breeds prevented the Lieutenant-Governor exercising any of his functions, and immediately after the rebellion was over an Act was passed to establish & new province carved out of the North West Territories, under the name of Manitoba. A constitution, similar to Manitoba. that existing in the other provinces, was conferred on the new province, and the first legislature was elected in 1871. The province is divided into four counties, and these are subdivided into twenty-four districts or divisions for legislative, judicial and electoral purposes. 5. BRITISH COLUMBIA. British Columbia, the largest of the Canadian provinces, cannot be said to have had any existence as a colony until 1858. Previous to that year provision had been made by a series of Acts for extending the Civil and Criminal Laws of the Courts of Lower and Upper Canada over territories not within any province, but otherwise the territory was used as a hunting ground of the Hudson's Bay Company. The disputes and difficulties that arose from the influx of miners owing to the gold discoveries in 1856, resulted in the revocation of the licence of the Hudson's Bay Company and the passing of the Imperial Act 21 & 22 Vie. c. 99 to provide for the government of British Columbia. Power was given to Constitu: . " ’ . tion of the Her Majesty by Order in Council to appoint a Governor. of province. the Colony, to make provision for the administration of justice therein, and to establish all laws and institutions necessary for the peace, order and good government of persons therein. Her Majesty was also authorised by Order in Council to empower the Governor to constitute a Legislature, consisting of the Governor and a Council, or a Council and an Assembly, to be composed of such persons as Her Majesty might deem 30 CONSTITUTIONAL HISTORY OF THE PROVINCES. Vancouver’s Island. fit. Power was given to annex Vancouver's Island on receiving an address from the two Houses of the Legislature of that Island. Sir James Douglas was appointed Governor and by his commission he was authorised to make laws, institutions and ordinances for the peace, order and good government of British Columbia, by proclamation issued under the public seal of the colony. The first proclamation issued was one for indemnifying the Governor and other officers for all acts done previous to the date of the proclamation, whilst by a subsequent proclamation the English Civil and Criminal law as it existed on the date of the proclamation of the 21 & 22 Vie. ¢. 99, i.e. 19 Nov. 1858, was declared to be in force in the colony’. The Governor continued to legislate by proclamation until 1864, when his proclamations gave way to Ordinances passed by the Governor with the advice and consent of the Legislative Council. The Legislative Council consisted of five officials, five magistrates, and five other members selected from the inhabitants. Up to this time the Governor of British Columbia was also Governor of the neighbouring island of Vancouver. Vancouver's Island is historically an older colony than British Columbia. Though discovered in 1592 it remained practically unknown to Europeans for two centuries, and it was not until 1849, when the island was granted to the Hudson's Bay Company, that a Governor was appointed. The first Governor called a legislative Council of nine members, and his successor constituted an Assembly of seven members under the direction of the Secretary of the Colonies. Freeholders of twenty acres, being British subjects, were qualified to vote, and members of the legislature were required to possess real property of the value of £300. 1 But the effect of this proclamation was modified by the Ordinance of the 6th March, 1867, which enacted that the English law as ib existed on the 19 Nov. 1858 should apply “so far as the same are not from local ~ireumstances inapplicable.” BRITISH COLUMBIA. 31 The seat of government in British Columbia had been fixed by the 21 & 22 Vic. (i) c. 99 at New Westminster, but Victoria in Vancouver's Island was fixed as the Governor's residence. The complaints of the inhabitants of the mainland regarding the continual absence of the Governor from the seat of government led to the passing of the 26 & 27 Vic. (i) c. 83 establishing separate governments at Victoria and New Westminster. In 1865 the legislature of the island adopted a series of resolutions in favour of union with British Columbia, and by the Imperial Act 29 & 30 Vic. (i) c¢. 67 the two colonies were united. The power and authority of the executive government and of the legislature of British Columbia was extended over the island, and the number of Councillors was increased from 15 to 23 in order to provide for the representation of the island in the legislature. No other alteration was made in the constitution of the legislature, which until the admission of the colony into the union continued to consist of the Governor and a Council. Though British Columbia was not represented at the Admis. Quebec Conference, the legislative Council on the 18th March, ng 1868, unanimously adopted a resolution expressing the desire Dominion. that the province should be admitted into the union. Negotiations were entered into with the Dominion and resolutions embodying the terms and conditions agreed upon were adopted by the Dominion Parliament on the 31st March, 1871, and by the legislature of British Columbia. By an Order in Council dated the 16th day of May, 1871", British Columbia was declared to be a province of the Dominion from the 20th July, 1871. See Appendix. 39 CONSTITUTIONAL HISTORY OF THE PROVINCES. 5. PriNcE EDWARD'S ISLAND. Prince Edward’s Island, the smallest province of the Dominion, originally called St John’s Island, until 1770 formed part of Nova Scotia. The first Governor was Walter Patterson, and by his commission® he was required to execute the duties of his office in accordance with his commission, the royal instructions, and such laws as might be passed by the Council and the Assembly. The Council possessed both sxecutive and legislative functions, and the Governor and she Council were empowered to call an Assembly of the freeholders and the planters. After the first Assembly was summoned all laws were to be passed by the Governor, the Council and the Assembly, a power of disallowance being reserved to the Crown. The Governor was authorized by and with the consent of the Council to constitute Courts of Justice “for the hearing and determining of all causes as well criminal as civil according to law and equity,” and full power was given to appoint judges, commissioners, justices of the peace, sheriffs, and other officers and ministers for the administration of justice’. The Governor had also the right of pardoning sriminals and presenting to benefices: of levying forces for the defence of the island and of erecting castles and forts: of disbursing public money for the support of the government and of granting Crown lands. The first Assembly met in 1773 and consisted of 18 members. In 1839 the Executive Council was separated from the Legislative Council, and in 1862 an Act was passed making the Legislative Council elective. Introduc- In 1847 the Assembly adopted an address to the Crown, ible representing that the Lieutenant-Governor alone should be govern responsible to the Crown and Imperial Parliament for his Early Constitu-Hon. Can. Sess, Papers, 1883, No. 70. 2 Th. p. 4. PRINCE EDWARD'S ISLAND. 3 acts and that the Executive Council should be deemed the constitutional advisers of Her Majesty's representative. Earl Grey in a despatch to the Lieutenant-Governor in January 1849 pointed out, that the introduction of responsible government in a colony depended on the increase of the community in wealth, numbers and importance, and expressed the view that the conditions which would warrant the introduction of responsible government into Prince Edwards Island were wanting. In a subsequent despatch Earl Grey intimated that if the other expenses of government were defrayed by the Island the home Government would provide the salary of the Governor. The Assembly offered to accept the suggestion provided the Crown surrendered all claim to the quit rents and Crown lands and conceded responsible government. The latter condition Earl Grey refused to grant and the Assembly thereupon adopted the expedient of refusing supplies. This course proved successful and in 1851 the concession was made. The proposal to unite all the provinces in one Confedera- Polen bion was not received with favour in Prince Edward’s Island. “*™ After the Quebec Conference public meetings were held to protest against the Island joining the Union and in the Assembly only five members were in its favour. In the following session (1866) the Assembly resolved that this House cannot admit that a federal union of the North American Provinces and Colonies which would include Prince Edward's Island could ever be accomplished on terms that would prove advantageous to the interests and well-being of the people of this island, separated as it is and must ever remain, from the neighbouring provinces by an immoveable barrier of ice for Many months in the year.” The question continued to be discussed in the following years, and at length in 1873 the Executive Council adopted a minute that, if liberal terms of Union were offered, the Government would dissolve the Asw . 34 CONSTITUTIONAL HISTORY OF THE PROVINCES. Conditions of the Union. sembly in order to give the people an opportunity of deciding the question. Delegates were appointed to meet the Dominion Government and certain terms and conditions were agreed to. The Assembly was dissolved but the new House passed a resolution to the effect that the terms and conditions proposed did not secure to the Island a sum sufficient bo defray the requirements of its local government. A compromise was ultimately arrived at, and the House unanimously resolved to present an address to Her Majesty to unite the ‘sland with the Dominion. The necessary Order in Council was issued on the 26th of June 1873, and the Island was declared to be a province of the Dominion from the 1st day of July of the same year. The principal terms and conditions were :— (1) That the Island not having incurred a debt equal to 50 dollars a head of its population, i.e. of 4,701,050 dollars, should receive from the Dominion interest at 5 per cent. per annum on the difference between the actual amount of its indebtedness and the above amount. (2) That as the Government of the Island held no lands from the Crown and therefore enjoyed no revenue from that source for the construction and maintenance of public works, the Dominion Government should pay by yearly instalments to the Government of the Island 45,000 dollars yearly less 5 per cent. on any sum not exceeding 800,000 dollars which the Dominion might advance to the Island for the purchase of land held by large proprietors. (3) That in consideration of the transfer to Canada of the powers of taxation mentioned in the BN.A. Act, 1867, the Dominion was to pay the Government of the Island 30,000 dollars and an annual grant equal to 80 cents per head of its population as shewn by the census of 1871, such grant bo increase as the population increased until it reached 400,000. (4) That the Dominion should assume the following 1 See Appendix, DISTRICT OF KEEWATIN. 35 charges, the salaries of the Lieutenant-Governor and the Judges, the charges in respect of customs, post-office, protection of fisheries, militia, lighthouses, shipwrecked crews, quarantine, marine hospitals, the geological survey, and the penitentiary. (5) That the Dominion Government should assume the railway then being built. 7. DisTrioT oF KEEWATIN, In 1876 an act was passed by the Dominion Parliament erecting into a separate government under the name of the District of Keewatin the portion of the North West Territories lying to the north of Manitoba. The district contains about 895,000 acres, and is principally occupied by Icelandic colonists. The Lieutenant-Governor of Manitoba is ex officio Lieu- Adminis. benant-Governor of Keewatin, He is assisted in the adminis- atontration of the district by a council of not more than ten and not less than five members appointed by the Governor-General in Council. The Lieutenant-Governor in Council has such legislative powers as are conferred by the Governor-General in Council, and the Governor-General in Council has the balance of legislative power, but no law can be passed either by the Governor-General in Council or by the Lieutenant-Governor in Council which (a) is inconsistent with any Dominion Act applying to the District, (b) imposes any tax or any duty of customs or excise or any penalty exceeding 100 dollars, ; (c) alters or repeals the punishment provided in any Act in force in the District, or (d) appropriates any public money, lands or property of Canada without the authority of Parliament. Copies of all laws passed by the Lieutenant-Governor in 89 36 CONSTITUTIONAL HISTORY OF THE PROVINCES. Council require to be transmitted to the Governor in Council who may disallow any law within two years of its passing’. 3. Tug NorTH WEST TERRITORIES. The North West Territories comprise all lands not within the limits of any province or of the District of Keewatin. The area of the Territories is about 3,000,000 square miles or four bimes as great as the area of all the provinces together. The Territories were ceded to Canada by an Order in Council dated the 24th June 1870° under the authority of the 146th section of the B.N.A. Act, 1867. The southern portion of the serritories between Manitoba and British Columbia has been formed into four provisional districts, viz. Assiniboia, Saskatchewan, Alberta and Athabasca. By the Dominion Act 38 Vic. ¢. 49 executive and legislative powers were conferred on a Lieutenant-Governor and a Council of five members subject to instructions given by Order in Council or by the Canadian Secretary of State. Provision was made for the election of representatives to the Council by districts having a population of 1000 adults, and owing to the increase mn population there are now 14 elected members. When the number of elected members reaches 21, the Council is to cease and the members are to constitute a legislative Assembly. The Acts relating to the government of the Terribories have been consolidated and form c. 50 of the Revised Statutes of Canada. 0 Tur UNION OF THE PROVINCES. Steps A federal union of the British North American Colonies A had been a favourite scheme with many Colonial statesmen mnion. 4nd on several occasions was discussed by some of the legislatures. 1 See The Keewstin Act, BR. S. C., 49 Vie. ¢. 53. 2 Qee Appendix. THE UNION OF THE PROVINCES. 27 The honour of taking a decided step towards such a Initiative union belongs to the legislature of Nova Scotia. In 1861 a hy a resolution favourable to a union was passed by that legislature and transmitted to the Duke of Newcastle, then Colonial Secretary, who in turn forwarded it to the Governor-General and the Lieutenant-Governors of the provinces. The Lieutenant-Governors brought the subject before their respective legislatures; and the legislatures of the maritime provinces passed a resolution authorizing the respective Lieutenant-Governors to appoint delegates not exceeding five to confer with delegates of the other provinces “for the purpose of discussing the expediency of a union of the three provinces under one government and legislature.” Delegates were appointed and it was arranged that the conference should meet on the 1st September at Charlottetown. Before the Conference met a coalition government was formed in the Province of Canada pledged to a union of the provinces, and the Government at once asked for and obtained permission to send delegates to the Charlottetown Conference, who however were not authorized to consider the quesdon of a legislative union. The proposal to unite the maritime provinces was deemed impracticable, but the delegates were unanimously of opinion that a union on a wider basis was possible and the Canadian delegates proposed that with the consent of the provinces a further conference should be held at Quebec. The proposal was adopted and the Conference ended. The Quebec Conference met on the 10th October. Twelve delegates were present from Canada, seven from New Brunswick, five from Nova Scotia, seven from Prince Edward’s Island and two from Newfoundland. The Conference sat for eighteen days and the result of its deliberations was the celebrated “Seventy-two” resolutions on which the Act of Union was afterwards based. Each delegation undertook to submit the resolutions to its own Charlottetown Conference. 38 CONSTITUTIONAL HISTORY OF THE PROVINCES. government, and pledged itself to use every legitimate means to ensure the adoption of the scheme by its legislature. Canada. The Canadian legislature met in January 1865, and after a debate of a fortnight’s duration the resolutions were adopted in the Council by a vote of 45 to 15. The debate in the Assembly lasted for five weeks, but the resolutions were adopted by 91 to 33. New In New Brunswick the general election of 1865 resulted Brus" in the return of an Assembly hostile to the scheme: but in the following year the Legislative Council declared for the Union. The Ministry resigned, a general election followed, and the new Assembly on the 80th June declared in favour of confederation. Nova Scotia. In Nova Scotia the Quebec Resolutions were brought before the Assembly in 1866 and were approved by a vote of 31 to 15. New- In Newfoundland the Governor introduced the subject in foundland. 1 ¢ legislature at the opening of the session in January 1866. On the 8th March the Assembly after sitting in committee for several days adopted the following resolution : «That whilst duly regardful of the momentous character of the subject and of the promise to his Excellency to give it attention, yet, as no information has been received demanding its immediate reconsideration, the House does not deem it expedient to enter upon its discussion with a view to any decision thereon.” Prince In Prince Edward’s Island the scheme was not received Ravan with favour and several years elapsed after the Union was accomplished before the Island joined the Dominion, THE UNION OF THE PROVINCES. 39 A sufficient number of provinces, viz. Canada, New Brunswick and Nova Scotia, had by 1866 declared for union and in shat year delegates were appointed to settle the details and to determine the precise character of the Imperial Act necessary to carry the union into effect. The delegates met in London in December 1866, under the presidency of Hon. John A. Macdonald, and on the 7th February 1867 Lord Union Carnarvon introduced the Bill “for the Union of Canada, Nova 4 ok Scotia, and New Brunswick and the government thereof: and for purposes connected therewith.” The measure received the support of all parties and was read a third time in the House of Lords on the 26th of February. On the 8th March it passed through the House of Commons and on the 29th of that month received the Royal assent. The Act authorized Her Majesty in Council to declare by proclamation that on and after a certain day the provinces of Canada, Nova Scotia and New Brunswick should form one Dominion under the name of Canada. The necessary proclamation was issued on the 22nd of May and the 1st of July was fixed as the day from which the Union should take effect. CHAPTER III THE SOURCES OF THE LAw AND CUSTOM OF THE CONSTITUTION. THE legal rules and constitutional customs that form the « Constitutional Law and Custom” of Canada are derived from seven sources:—(1) Imperial Acts, (2) Dominion Acts, (8) Provincial Acts, (4) Orders in Council issued under Imperial, Dominion or Provincial authority, (5) Orders and rules of the Dominion Parliament and of Provincial Legislatures, (6) Usages, and (7) The Letters Patent, Commission and Instructions issued to the Governor-General. 1. Imperial Acts. Though the Union Act of 1867 contains the general scheme of the Constitution it has been supplemented by several subsequent and important statutes. The 34 & 35 Vie. (i) c. 28 conferred on the Dominion power to establish new provinces and to provide for the government of any territory not within the limits of a province, The 38 & 39 Vic. (i) c. 38 repealed the 18th section of the Act of 1867 relating to the privileges of the Dominion Parliament and more clearly defined the powers of the legislature to determine its own privileges, and the 49 & 50 Vic. (i) c. 35 authorized the Canadian Parliament to make provision for the representation of new provinces in the Senate and House of Commons. SOURCES OF THE CONSTITUTION. 4] 2. Dominion Acts. Many important statutes have been passed by the Parliament of Canada relating to its constitution. Immediately after the Union Act of 1867 came into force a series of statutes had to be passed for the organization of the different departments of State. As regards the Legislature it was not until 1885 that a general election law’ was carried regulating the election of members of the House of Commons, and several subsequent statutes have been passed on the same subject. By the 88 Vic. c. 11 a Supreme Court was established for the Dominion, and on the admission of Rupert's Land and the North West Territories, Acts were passed forming the new province of Manitoba (38 Vic.c.8) and providing for the government of the North West Territories®. These as well as other Acts will be found in the recently issued edition of the Consolidated Statutes of Canada. 3. Provincial Acts. The main features of the constitutions of Ontario and Quebec are contained in the Union Act of 1867, but as regards the other provinces, though that Act governs the division of legislative power and contains certain general provisions relating to all the provinces, recourse must be had to the respective Provincial Acts for the details of the Provincial Constitutions. It is from these Acts that the functions of the different provincial departments of State, the qualifications of members of, and electors to, the legislative Assemblies, and the organization of the Provincial Judicature are to be learned. The custom that prevails in all the provinces, except in Prince Edward's Island, of revising the Statutes at intervals, and consolidating the law on one subject in one statute, makes the provincial statute book very accessible to students. 4. Orders in Council. The most important Orders in Council relating to Canada that have been issued under Imperial Statute are those admitting the North West Terri-1 49 Vie. c. 8. 2 32 & 83 Vic. c. 8. 12 THE SOURCES OF THE LAW AND tories!, British Columbia? and Prince Edward’s Island? into the Dominion. Several Orders in Council have been issued lisallowing Acts of the Dominion Parliament. Orders in Council are often issued under the authority of Statute by the Governor and Privy Council of Canada. The Lieutenant-Governor of the North West Territories for instance carries on the government and administration of these Territories partly under the provision of the Statute Law partly under Orders of the Dominion Privy Council. 5. Orders of the Dominion Parliament and Provincial Legislatures. The Dominion Parliament and the Provincial Legislatures conduct their proceedings partly under the authority of statutes, partly under standing and other orders, and partly under customs and usages. Each House has its own standing orders and resolutions, based mainly on the practice that prevails in the English House of Commons. The written rules of the Dominion House of Commons and of the Quebec Legislative Assembly are much more detailed shan those drawn up by the other legislative bodies, but all ‘he Legislative Assemblies agree in adopting as a standing order that “in all unprovided cases the rules, usages and forms of the House of Commons of the United Kingdom of Great Britain and Ireland shall be followed.” 6. Usages. The constitutional usages that always tend 0 come into existence cannot be neglected, whether the effect be to supply the absence of a necessary legal rule or to modify the administration of a law. The Hon. J. S.C. Wurtele, Speaker of the Legislative Assembly of Quebec, has compiled a body of such usages in force in that assembly®, and Mr Burinot, in his valuable work on Parliamentary Practice, refers to many similar usages followed by the Dominion Parliament. 7. Letters Patent and Instructions relating to the office of the Governor-General. The Letters Patent constituting the 1 30th June, 1870. 2 16th May, 1871. 3 26th June, 1873. + Manual of the Legislative Assembly of Quebec, CUSTOM OF THE CONSTITUTION. 43 office of Governor-General and the Instructions issued to the Governor-General were revised in 1878. By these instruments he is authorized to exercise several important executive and prerogative powers vested in Her Majesty, as for instance the summoning, proroguing and dissolving parliament, the pardoning of criminals and the appointment of judges, ministers and other officers. It is not usual on the appointment of the Lieutenant-Governor of a province to issue instructions to him, but such a course has been occasionally adopted. . See Appendix. CHAPTER 1V. PROVINCIAL LEGISLATURES. I. Parties to Legislation. In the Provinces of British Columbia and Manitoba the legislature consists of a Lieutenant-Governor and a Legislative Assembly, whilst in Quebec, New Brunswick, Prince Edward's Island and Nova Scotia it consists of a Lieutenant-Governor, a Legislative Council, and a Legislative Assembly. North Provision has been made by the Dominion for the governost Ter. ment of the North West Territories, but as yet these territories have not been formed into a province. The Lieutenant-Governor in Council may make ordinances within certain limits for the government of the Territories. 2 How summoned. Provisions It is remarkable that the British North America Act, 3 ge 1869, contains no general provision relating to the summoning 475. of the local legislatures. By section 81 power is given to the Lieutenant-Governors of Ontario and of Quebec to summon in the Queen’s name by instrument under the Great Seal of the Province the Legislative Assemblies of these provinces, but no reference is made to the other provinces. Up to 1878 the Instructions given to the Governor-General contained a clause referring to the Lieutenant-Governors, and authorizing them to exercise from time to time all powers necessary in respect of the assembling, proroguing and dissolving of Legislative PROVINCIAL LEGISLATURES. 45 Councils or the Legislative or General Assemblies of the provinces respectively. This clause was omitted in the revised instructions of L878 in deference to the contention of the Dominion that the Lieutenant-Governor of the provinces other than those expressly referred to in the Union Act had implied powers for the above purposes. “Any powers,” said Mr Blake, the Dominion Minister of mim Justice, “ which may be thought necessary should have been of the conferred upon the Lieutenant-Governor by the British North Dominion America Act, and it appears to me they must be taken to be expressly or impliedly so conferred. The provision giving these powers to the Lieutenant-Governor by the Governor-General’s Commission appears somewhat objectionable, and it might perhaps be advisable to leave these matters to be dealt with by those officers under the B. N. A. Act, the 82nd section of which in terms confers on the Lieutenant-Governor of the new provinces of Ontario and Quebec the power in the Queen’s name to summon the local bodies, a power which no doubt was assumed to be continued to the Governors of the other provinces.” The provincial legislatures are summoned by the Lieu- Form of tenant-Governor, in some provinces, as for instance in British iii Columbia in his own name, and in other provinces in the name of the Queen. The following form is the one in use in Quebec: Canada Province of Quebec LS. Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, &c. &e. To our beloved and faithful the Legislature Councillors of the Province of Quebec and the Members elected to serve in 1 Can. Sess. Paper, 1877, No. 13, p. 7. L. BR. Masson 16 PROVINCIAL LEGISLATURES. the Legislative Assembly of our said province and summoned and called to a meeting of the Legislature of our said province at our City of Quebec on the 15th day of the month of March instant to have been commenced and held, and to every of you (GREETING : A PROCLAMATION. WHEREAS the meeting of the Legislature of the Province of Quebec stands prorogued to the 15th day of the month of March instant. Nevertheless for certain causes and considera-“ions We have thought fit to prorogue the same to the eighth day of the month of April next so that neither you nor any of you on the said fifteenth day of March instant at our city of Quebec to appear are to be held and constrained for We do will that you and each of you and all others in this behalf interested on Thursday the eighth day of the month of April next at our said city of Quebec personally you be and appear for the despatch of business to treat do act and conclude upon those things which in our said Legislature of the Province of Quebec by the Common Council of our said Province may by the favour of God be ordained. In testimony whereof We have caused these our Letters to be made Patent and the Great Seal of our said Province of Quebec to be hereto affixed. Witness our sruly and well-beloved the Honorable Louis-Frangois-Rodrigue Masson, Lieutenant-Governor of Quebec, Member of our Privy Council for Canada. At our Government House in our city of Quebec in our said province of Quebec this twelfth day of March in she year of our Lord 1886 and in the 49th year of our reign. By Command, C. H. Huot, Clerk of the Crown in Chancery, Quebec. PROVINCIAL LEGISLATURES, 7 When a dissolution takes place, a proclamation is issued i dissolving the Assembly. This is followed by a second pro- solution, clamation announcing that orders have been given for issuing writs for holding a new election and directing the writs to bear a certain date, and to be returnable on a certain date, and fixing the day on which nominations are to be held. A further proclamation directs the legislature to meet on a given day. 3. The opening of the Legislature. The method of opening a provincial legislature is similar English to that followed at the opening of the Imperial Parliament. Dee The proceedings in Quebec for instance at the opening of the new parliament in 1882 were as follows: On the first day of the meeting appointed for the despatch Swearing of business pursuant to the Proclamation of the Lieutenant- members, Governor, the Commissioners appointed to administer the oath of allegiance to the members—usually the clerk and the clerk’s assistant—attended at the table of the House at the hour of ten in the morning, and proceeded to swear in members who subscribed the roll containing the oath. At three o'clock in the afternoon the members who had taken the oath assembled and took their seats in the House and awaited a message from the Lieutenant-Governor. On receiving a message through the Usher of the Black Rod to the effect that “ His Honour the Lieutenant-Governor desires the immediate attendance of the members of this Hon. Assembly in the Legislative Council Chamber” the members proceeded to the Council Chamber. The Clerk of the Legislative Council then addressed them as follows: “ Honourable Gentlemen and Gentlemen of the Legislative Assembly. + All the Provincial Assemblies have a standing order to the effect that in unprovided cases the rules, usages and forms of the Imperial House of Commons as in force at the time shall be followed. ar 1] PROVINCIAL LEGISLATURES. Election « His Honour the Lieutenant-Governor does not see fit to gE, declare the causes of his summoning the present Provincial Legislature until a Speaker of the Legislative Assembly shall have been chosen according to law, but that to-morrow at the hour of three o'clock His Honour will declare the causes of his calling the present Legislature.” The members of the Assembly returned to their own Chamber and a member addressing the Clerk proposed a member as Speaker. The question was pub by the Clerk, and after the Speaker was elected and had been congratulated the mace was placed on the table and the House adjourned. On the following day the members again assembled, and on receipt of a message from the Lieutenant-Governor they, preceded by the Speaker, proceeded to the Council Chamber. Te Rt iy The Speaker then spoke as follows: i Lugs “May it please Your Honour, Council. «The Legislative Assembly have elected me as their Speaker, though I am but little able to fulfil the important Juties thus assigned to me. «If in the performance of these duties I should at any sime fall into error I pray that the fault may be imputed to me and nob to the Assembly whose servant I am and who through me, the better to enable them to discharge their duty to their Queen and Country, humbly claim all their undoubted rights and privileges, especially that they may have freedom of speech in their debates, access to Your Honour’s person at a1] seasonable times and that their proceedings may receive 2om Your Honour the most favourable interpretation.” Then the Honourable the Speaker of the Legislative Council said : “Mr Speaker, «I am commanded by His Honour the Lieutenant-Gosernor to declare to you that he freely confides in the duty and attachment of the Assembly to Her Majesty's person and government, not doubting that their proceedings will be con- ADJOURNMENT, 19 ducted with wisdom, temper and prudence, he grants and upon all occasions will recognize and allow their constitutional privileges, “I am commanded also to assure you that the Assembly shall have ready access to His Honour upon all seasonable Occasions, and that their proceedings as well as your words and actions will constantly receive from him the most favourable construction.” The members retired as before, and the Speaker informed SE the House of what had occurred. Leave was then given to beech bring in a bill, which was read a first time. In the afternoon the House was summoned to the Legislative Council to hear the speech read, and on its return the Speaker reported that the Lieutenant-Governor had been pleased to make a Speech to both Houses of which he had obtained a copy. The speech was ordered to be taken into consideration on the following day, and the House proceeded to appoint Committees and to transact other business. 4. Adjournment. “An adjournment of either House,” says Sir Wm. Anson or his Law and Custom of the Constitution’, “ takes place at its own discretion unaffected by the proceedings of the other House. Business pending at the time of the adjournment is ‘aken up at the point at which it dropped when the House Deets again.” This rule is followed in Canada. Each House usually adjourns from day to day, but on Fridays the adjourn-Dent is usually until Monday morning. 5. Prorogation and Dissolution. * Express powers of dissolving the Legislature were given Proroga. bo the Lieutenant-Governors of Ontario and Quebec by s. 85 hon. of the B.N. A. Act, but no reference was made to prorogabon or to dissolution in the other provinces’. Some of 1p. 63. 2 See ante, p. 44. 50 PROVINCIAL LEGISLATURES. the Provinces have expressly conferred on the Lieutenant-Governor power to prorogue or to dissolve the Legislature’. Manner of The Legislature may be prorogued by the Lieutenantproves Qlovernor either in person or by proclamation. Prorogation at the end of a session is usually effected in person. For instance, after the usual speech had been delivered in the Quebec Legislative Council on the 21st June, 1886. the Speaker of the Legislative Council said: « Honourable Gentlemen of the Legislative Council and Gentlemen of the Legislative Assembly: «Tt is His Honour the Lieutenant-Governor's will and pleasure, that this Provincial Legislature be prorogued until Monday the ninth day of August next to be then here holden and this Provincial Legislature is accordingly prorogued until Monday the ninth day of August next.” When it is desired to prorogue the Legislature during the recess, a proclamation is issued. Leaving out the formal parts? the following form is used in Quebec: A PROCLAMATION. WHEREAS the meeting of the Legislature of the Province of Quebec stands prorogued to at which time at our City of Quebec you were held and constrained to appear. Now know ye that for divers causes and considerations and taking into consideration the ease and convenience of our loving subjects, we have thought fit by and with the advice of our Executive Council of the Province of Quebec to relieve you and each of you of your attendance at the time aforesaid hereby convoking you and by these presents requiring you and each of you that on you meet us in our Legislature of the said Province at our City of Quebec and therein to do as may seem necessary. Herein fail not. Dissolu- A dissolution of the Provincial Assembly takes place either Hon 10.R.S.1887,¢0,11,5.8. Q. 44 & 45 Vic. c. 7,8. 2. B.C. 34 Vic. c. 42, a. 31. 2 See ante, p. 45. DISSOLUTION. 51 by act of the Crown or by lapse of time: the demise of the Crown having no such effect. The Lieutenant-Governor as representing the Crown may dissolve the Legislature in person or by proclamation, the latter being the usual course. The form of proclamation used in Quebec in 1882 was as follows : Canada Province of Quebec L. S. Form of Proclamation. Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, &c. &c. To our beloved and faithful the Legislative Councillors of the Province of Quebec and the citizens and burgesses elected to serve in the Legislative Assembly of our said Province and to all whom it may concern GREETING A PROCLAMATION WHEREAS it has pleased us by our proclamation dated the Lith of October last to convoke the Legislature of our Province of Quebec for the fifteenth day of the month of November stant and wHEREAS We have thought fit by and with the advice and consent of our Executive Council of our Province of Quebec to dissolve the Legislative Assembly of our said Province Now know ye that by this our royal proclamation We dissolve the said Legislative Assembly: Accordingly We >¥empt the Legislative Councillors and the citizens and burgesses of the Legislative Assembly of the obligation of Meeting and attendance on the said fifteenth day of November instant. In testimony whereof &c. A Provincial Assembly lasts for four years except in the Lapse of Province of Quebec, where it lasts for five years subject to the time. Ad h2 PROVINCIAL LEGISLATURES. right of the Lieutenant-Governor to dissolve it at any time. In Quebec, New Brunswick, British Columbia, Manitoba, and Prince Edward’s Island the period begins to run from the day of the return of the writs: but in Ontario the period begins to run from the 55th day, and in Nova Scotia from the axpiration of the 40th day after the date of the issue of the writs for holding the election® In the North West Territories the elected members hold heir seats for two vears® 6. Annual Sessions. In England there is no statutory authority requiring Parliament to meet every year. The 16 Car. IT, c. 1° required Parliament not to be intermitted above three years at the most, and the 6 Will. & Mary, c. 2 provided that writs should issue for a new Parliament within three years after the determination of every Parliament. The necessity of passing the annual Army Bill and the Appropriation Act secures in practice annual sessions. Provision The British North America Act, 1867% expressly proan Apan) vides, that there shall be a session of the Legislature once at least in every year, so that 12 months shall not intervene between the last sitting of the Legislature in each Province in one session and its first sitting in the next session. This rule is also found in Provincial Acts”. 7. Enacting Clause. The enacting clause of a statute varies in the different provinces. In Ontario. Quebec, Manitoba, and British Co-1 0.R.8.1887,¢.11,8 1. Q.44 & 45 Vie. c¢. 7. N. B. Con. Stat. 1877, c. 4, 5. 80. N. 8. Rev. Stat. 1884, e. 3, s. 10. B. C. Con. Stat. 1877. c. 42. i. 44. 83 Vie. e. 3. P. E.L 19 Vic. ¢, 21, s. 86. 2 R. 8. C.s. 25. 3 Repealed by the 50 & 51 Vie. (i) c. 59. 4 g. 86. 5 0.R. 8, 1887. ¢. 12, 8. 86. 383 Vic, ¢. 3. B. C. Con. Stat, 1877, c. 42, i5 PAYMENT OF MEMBERS. 53 lumbia a statute professes to be enacted by “Her Majesty by and with the advice of the Legislature.” In Nova Scotia, New Brunswick, and Prince Edward's Island the form is by the “Lieutenant-Governor, the Council and Assembly.” In the North West Territories ordinances are enacted by the “Lieutenant-Governor by and with the advice and consent of his Council®” 8. Payment of Members. Members of the Legislatures of every province except Payment Nova Scotia receive an allowance or indemnity in addition ad fo a payment for travelling expenses. In Ontario, if the session does not exceed 30 days, the Sum allowance is $6 for each day on which the member attends : Bewad. if the session extends beyond 30 days then the member receives such sum as the Assembly may vote. In Quebec and British Columbia the allowance for a session not exceeding 30 days is $6 a day, and for a session exceeding 30 days a sessional allowance of $600 in Quebec and $400 in British Columbia. In Manitoba and New Brunswick the plan of a sessional Sessional allowance has also been adopted; the former allows $400 allowance and the latter $300 per session. A deduction is made from the sessional allowance for each Nonday a member is absent. Such deduction amounts to $4 in allowance. Ontario, $6 in Quebec and British Columbia, and $8 in Manitoba, In New Brunswick the deduction is pro rata. No deduction however is made on account of absence due Iiness. bo illness, provided the member is at the place where the Legislature meets in the Provinces of Quebec and New Brunswick or within a certain distance of the place of meeting in the Provinces of Ontario, British Columbia (10 miles) and Manitoba (3 miles). 1 Bee Todd’s Parl. Gov. p. 330, where it is suggested that all provincial laws should be enacted in the name of the sovereign. RA PROVINCIAL LEGISLATURES. Allowance ~~ When a member serves for part of a session only and for part is not entitled to a sessional allowance he is usually paid session. @4 or $6 a day during the time he is actually a member In Prince Edward’s Island payment depends on an annual vote. Each member receives $160 and an allowance of $12 for stationery and postage together with his travelling expenses. Travelling The usual allowance for travelling expenses is 10 cents expenses. yor mile, but in British Columbia it is 25 cents. The mileage allowed is the distance measured along the nearest mail route as certified by the Speaker between the place of residence of the member and the place where the Legislature meets. How In some provinces a member may draw his allowance up payment to $4 a day from time to time, but the usual time for payment is at the end of the session, when the members file with the Clerk declarations of the number of days they have attended and the sums to which thev are entitled for mileage’. 1 0. BR. 8. 1887, ¢. 11, 88. 62—70. Q. 49 & 50 Vie. ¢. 97, 88. 70-74; N. B. 42 Vie. e. 8. Man. Con. Stat. ec. 4, 8s. 8—22, B.C. Con. Stat. 1877, o. 42. ss. 63—68. CHAPTER V. THE PROVINCIAL ASSEMBLIES. l. QUALIFICATIONS OF ELECTORS. THE qualifications required of electors to the Assemblies Electors. vary very considerably in the different provinces. All agree in requiring electors to be 1. Males, 2. Of the age of 21 years, 3. And not under any special legal disqualification. British Columbia is the only province that does not exact a property qualification of some kind: Ontario is the only province that accepts an income or wages qualification. The following is a brief summary of the qualifications in each province. Ontario. The qualifications of electors are governed by c. 9 of the Ontario. Revised Statutes of 1887. The following persons are entitled bo be registered as voters. I. Persons entered on the assessment roll as’ owners, Property. benants, or occupants of real property of the value of (a) $200 in cities and towns or (b) $100 in villages and townships. 2. Householders Householders, (a) entered as such on the assessment roll of the municipality, THE PROVINCIAL ASSEMBLIES. (5) and residing at the time of the election in the electoral district for which they vote, (¢) and who have resided there continuously since the completion of the previous assessment roll. 8. Persons assessed at an annual income of $250 and (@) residing in the electoral district, and (b) who have resided there continuously since the last revision. 4. Every person entered on the assessment roll as having earned in any trade or occupation during the previous 12 months not less than $250 and residing in the electoral district. Land- 5. A landholder’s son, stepson, grandson or son-inholders’ law who has resided in his father’s house for 12 months prior to the making up of the assessment roll and who is resident within the electoral district. Absence for any period not exceeding six months in the year is not to disqualify, and the time spent at any institution of learning within the Province of Ontario, or as a mariner or as a fisherman in the prosecution of his calling, is reckoned as spent in the father’s house. 6. (2) Where there is a voters’ list all Indians or persons with part Indian blood who have been duly enfranchised’, and all Indians or persons with part Indian blood who do not reside among Indians though participating in the annuities, moneys, or rents of a tribe are entitled to be registered as voters subject to the same provisions as other persons in the electoral district. (6) Where there are no voters’ lists, Indians or persons with part Indian blood are entitled to vote only (i) if they have been duly enfranchised, or (ii) if not being duly enfranchised they do not participate in the annuities, interest, moneys or rents of a tribe or body of Indians and do not Income. 1 An enfranchised Indian means an Indian who has by letters patent received a grant in fee simple of a portion of a reserve, see 43 Vic. c. 28, 46 Vie. ¢. 6. QUALIFICATIONS OF ELECTORS. 57 reside amongst Indians, and if in addition in either case they possess one of the usual qualifications. In those districts where there is no assessment roll a person in order to vote must (a) be resident and domiciled in the district in which he claims to vote, (6) own real estate in such district of the value of $200, (¢c) be a resident householder in such district at the time of election and, (d) have been such owner and householder for the six months preceding the election. Where no assessment roll. Quebec. The qualifications are governed by the 38 Vic. c. 7, ss. Quebec. 7—9. Voters must be, 1. Owners or occupants of real estate of the value of Property. $300 in any city municipality entitled to return one or more members, and of the value of $200 in any other municipality, or 2. Tenants of real estate paying an annual rent of $30 Occupa-In any city municipality entitled to return one or more son. members, and of $20 in any other municipality, such real estate being of the values of $300 and $200 respectively. Nova Scotia. The qualifications of electors depend on the 48 Vic. ¢. 27. Nova The following persons are entitled to vote. Seotia. 1. Persons assessed in respect of real property of Property the value of $150 or of real and personal property of the value of $300. 2. Persons possessed at the previous assessment of real property or of real and personal property of the above 1 Qee algo N. 8. Rev. Stat. 1884, e. 4, 8. 14. 58 THE PROVINCIAL ASSEMBLIES. Tenancy. Sons. Sons of widows. amounts and who have been specially exempted from taxation. 8. Tenants at the time of the previous assessment of real property of the value of $150 where the assessment was levied on the owner thereof, or persons the assessment value of whose personal property combined with that of the real property occupied by him as tenant is of the value of $300. 4. Sons of persons qualified as above, provided that (e¢) such persons are possessed of sufficient property to qualify more than one voter, and that (b) the son has resided in the residence of his father or on the property owned by his father within the district for at least one year prior to the previous assessment. 5. Sons of a widow, provided such widow at the time of the last assessment shall have been in possession of property sufficient to give a vote and such son has fulfilled the conditions of residence just mentioned. In cases 4 and 5, the elder son is preferred to the younger if the property is not sufficient to qualify both. Occasional absences from home are not to disqualify sons provided they do not exceed four months in the year. New Brunswick. yu The qualifications of electors are regulated by the Consol. a Stat. 1877, c. 4, which requires as a qualification to vote Property. 1. Assessment for the year, for which the registry is made up, in respect of real estate of the value of $100, or of personal property or of real and personal property together of the value of $400, or 2. Assessment for such year at an annual income of $400. In those districts in which there is no assessment, possession of the qualification is sufficient. QUALIFICATIONS OF ELECTORS. » Prince Edward's Island. The Election Law of 1878 (41 Vic. c. 14) as amended by Prince subsequent Acts was repealed by the 42 Vic. c. 2, reviving the Tp 24 Vic. c. 34. The last mentioned Act has been amended by the 45 Vic. c. 1. The following classes of persons may become voters: I. Owners of freehold estate in one whole water lot, Property. common lot, town lot, or pasture lot, situate in a town, common, or royalty. 2. Owners of freehold estate in land or buildings of the yearly value of 40s. 3. Owners of leasehold estates where the estate with improvements thereon is of a value of £35. 4. Occupants of houses, buildings or land in a town, Occupacommon or royalty of the annual value of 40s. ion. The above qualifications confer a vote for the town, common, or royalty, or electoral district in which the property is situated, provided the property has been owned or possessed for 12 months previous to the teste of the writ for holding an election. 5. Persons liable to statute labour who have per- Statute formed the same and have resided in the polling district labor. for 12 months. 6. Persons resident in Charlottetown and Summer- Taxes. side who have paid the provincial or civil poll tax for the year. Manitoba. By the Consol. Stat. 1880, c. 3, the following classes of Manitoba. voters are recognised :— ! (¢) Owners of real estate of the value of $100, 4 (b) Yearly tenants of real property of the value of penancy. $200 and paying an annual rent of $20, (¢) Occupants and bona fide householders on land Occuof an annual value of $20. pag. *y THE PROVINCIAL ASSEMBLIES. In each case the person must be resident in the electoral division for three months. British Columbia. British No property qualification is required’. Columbia. titled to be registered as voters provided Residence. (1) they have resided in the province for 12 months, and Persons are en-(2) have resided in the electoral district for two months of that period previous to sending in a claim to vote. Indians and Chinese are not entitled to vote. North West Territory. N.w.Ter- All bona fide residents and householders, not being unne enfranchised Indians, within the electoral district, and who holders. have resided in such electoral district for at least 12 months immediately prior to the issue of the writ of election are entitled to vote Persons disqualified. In each Province certain persons are disqualified by law from voting on account of the official positions they hold. The disqualification is usually extended to Judges of Superior, Admiralty and County Courts, Clerks of the Crown and of the Peace, Registrars, Sheriffs, officers in Customs and Excise, agents for the sale of Crown Lands, and Postmasters in cities and towns. Indians are disqualified in Manitoba and policemen in Quebec ®, Persons who have been guilty of corrupt practices are subject to temporary disqualifications. They cannot be registered or vote at an election for 8 years in Ontario, 1 B. C. 40 Vic. c. 66. 2 43 Vie. c. 25, 8. 17. 3 See O. R. 8.1887, ¢. 9, ss. 4—86, 8.45. Q. 38 Vic. ¢. 7, 8. 11. B. C. Consol. Stat. 1887, c. 66, ss. 8, 6, and 42 Vic. c¢. 22, 8. 4. Man. Consol. Stat. e. 3, 8. 8: 44 Viet. ¢. 12, 8. 6. N, S. Rev. Stat. 1884, c. 4, 8. 67, QUALIFICATIONS OF ELECTED. 61 7 years in Quebec and British Columbia, and 6 years in New Brunswick. 2. (QUALIFICATIONS OF ELECTED. Each province exacts certain qualifications from every Elected. person who sits in the Assembly. Not only must a member fulfil fixed conditions before he takes his seat, but he is liable to lose it under certain circumstances. All the provinces agree in requiring a member of the Assembly to be (1) a British subject by birth or naturalisation, (2) a male of the age of 21 years. Some of the provinces impose additional qualifications. Manitoba and British Columbia require members to be Voter. voters in the province, whilst Nova Scotia requires a member either to be a voter or to possess a freehold or equitable estate of the clear yearly value of $8. British Columbia requires a member to have been a resident within the province for one year preceding his election. New Brunswick requires a member to be legally seised Property. or possessed for his own use of freehold or leasehold lands in the Province of the value of $1200 over and above all incumbrances. In Prince Edwards Island the property qualification is fixed at £50, and an oath that he is possessed of such property must be taken by every candidate. The property qualification in Quebec was abolished by the 45 Vie. c. 7. In the North West Territories every elector is qualified bo be elected to the Council. The following persons are as a rule disqualified in all the provinces from sitting in the Legislative Assembly. 1 The following statutes may be referred to on the above qualifications: 0. R. 8.1887, ¢. 9; Q. 38 Vic. ¢. 7, 8. 124; N. 8. Rev. Stat. 1884, e. 3, 8. 3; N. B. 45 Vic. ¢. 21; Man. Consol. Stat. c. 8, 8. 113; B. C. Consol. Stat. 1877, ¢c. 66,8. 5: P. E. I. 19 Vic, e. 21, 8. 12; N. W. T., RB. S. C., 1886, ¢. 50, s. 21. 12 THE PROVINCIAL ASSEMBLIES. Persons 1. disqualified. Canada. 2. Members of the Legislative Council. 3. Persons holding provincial offices on the nomination of the Crown to which any salary or emolument is attached. Members of the Executive Council are exempted from shis rule provided they are elected whilst holding office. 4. Persons holding a federal office of emolument under the Crown, except 1. Officers in the Army, Navy, or Militia, not receiving permanent salary on the staff of the Militia. Postmasters whose yearly salary is not over $100 in Quebec. Justices of the Peace in Ontario and Manitoba. Notaries Public in Ontario. Coroners in Manitoba. The Chairman of Board of Works in Prince Edward's Island. 7. Justices of Lunatic Asylums, except two in Prince Edward's Island. 8. Teachers of district Schools in Prince Edward's Island. 5. Contractors with the Province or contractors with respect to any public service under which the money of the Province is to be paid. 6. Members of the Legislative Council or Assembly asually vacate their seats on becoming bankrupt or insolvent. 7. Persons found guilty of corrupt practices are disqualified from sitting in the Assembly for 8 years in Ontario, for 7 years in British Columbia and for 6 years in New Brunswick. Members of the Senate and House of Commons of ) In addition to the above persons, each province disqualifies sertain other officials too numerous to mention. « See on disqualifications, O. R. 8. 1887, c. 11, ss. 6—14. Q. 49 & 50 Vie. ¢. 97. N. S., R. S. 1884, c. 3, 5.11; 49 Vic.e. 6. P. E. I. 25 Vic. c. 18, DISTRIBUTION OF SEATS. *7 3. DISTRIBUTION OF SEATS. Ontario. The British North America Act 1867! fixed Ontario. the number of electoral divisions at 82, each returning one member. In 1871 the Ontario legislature re-arranged the constituencies and increased the Assembly from 82 to 89 members ?, and in 1885 the number was increased to 90. One member is returned by each electoral district. Quebec. The Legislative Assembly consists of 65 members* Quebec. elected by 65 electoral colleges, each returning one member. An electoral college is formed of an electoral district except in three instances where it is formed of two districts. At the time of the Union certain districts in Quebec were inhabited by a large Protestant population, and in order to safeguard the representation of these districts it was provided , that the limits of such districts should only be altered if the 2nd and 8rd readings of the Bill were passed in the Assembly with the concurrence of the majority of the members representing those districts. Nova Scotia. The province is divided into 18 electoral Nova counties, two returning 3 members each and the remainder ’ 2 members each ®. New Brunswick. The province is divided into 15 counties New and one city. Five counties return 4 members each, one Drum s county 3 members, seven counties 2 members each, two counties 1 member each. The city of St John’s returns 2 members”. Prince Edward's Island. The province is divided into P. E. I. 15 electoral districts each returning 2 members. 39 Vie. ¢. 8, 42 Vic. e. 13. N. B, 45 Vie. c¢. 21. Man, Consol. Stat. c. 5. B. C. 40 Vie. c. 42, ss. 10—24, 40 Vie. c. 66, ss. 5, 6. 1g 70. 2. 38 Vict, ¢. 2, 8. 1. 2 0. 48 Vic. e. 2, 8. 7, and see O. R. 8.1887, ¢. 11,8. 1. ! B. N. A. Act, s. 80; Q. 49 & 50 Vie. 8. 127. 5 B. N. A, Act, 1867, s. 80. 6 N. S., R. 8.1884, ¢. 8, s. 2. ? N. B. Consol. Stat. 1877, c. 4, s. 79. 8 P. E. I, Rev. Stat. 1856, ce. 21, 24. 34 THE PROVINCIAL ASSEMBLIES. Manitoba. ~~ Manitoba. Here there are 81 electoral districts each returning one member, British British Columbia. This province is divided into 13 Columbia. o1o0toral districts, five returning one member each; five returning 2 members each; two returning 3 members each and one returning 4 members®. By the 48 Vic. c. 3, provision has been made for slightly altering the above arrangement after the next dissolution. N.W.Ter- North West Territories. Members of the Council are tories. olected by electoral districts not exceeding 1000 square miles in extent and containing a population of not less than 1000 inhabitants of adult age. Each district returns one member. The districts are constituted by the Lieutenant-Governor by proclamation ® 4. METHOD OF ELECTION. Notice of slection. Nomina-Hon. The methods adopted for returning members to the Provincial Assemblies, though varying to some extent in she different provinces, possess some important features in common. The returning officer, on receipt of the writ or sther authority requiring him to hold an election, gives public notice, that on a certain day he will hold a court, or sttend at a certain place, to receive the nomination of candilates, and that in case a poll be demanded, it will be taken on a named day. Candidates are, except in Ontario and Prince Edward's [sland, nominated in writing. The nomination paper must be signed by 25 electors in Quebec; by 2 electors in Nova Scotia ; by 12 electors in Manitoba ; by 5 electors in British Columbia : and by one or more in New Brunswick. I Man. Consol. Stat. ¢. 5, 8. 2. M. 44 Vic. ¢. 12, 8. 1. 2 B. C. Constitution Act, 1871, Sched. A; B. C. 42 Vie. c. 19. $i R.S. C.e. 50, 8. 18. ELECTION OF MEMBERS. 319 In Manitoba and Quebec the nomination paper must be Special accompanied by the written consent of the person nomi- il nated unless at the time he is absent from the province. In Manitoba an affidavit also is required to the effect that the 12 nominators are electors, and that the candidate signed his written consent and the nominators signed the nomination paper, in the presence of the person swearing the affidavit. In Ontario, Quebec, Nova Scotia, New Brunswick and How British Columbia, the vote is taken by ballot, goven In Manitoba and Prince Edwards Island votes are recorded by a poll clerk in a poll book. In Ontario and Quebec the poll remains open from 9 a.m. Hours of to 5 pm.: in Nova Scotia from § am. to 5 pam.: in New Pong Brunswick and British Columbia from 8 am. to 4 pm.: in Manitoba it is to open between 8 and 9 am. and in Prince Edward's Island between 9 and 10 am., and in both these last-mentioned provinces closes at 7 p.m. between the lst April and 1st October, and at 5 pam. between the Ist October and 1st April. At the close of the poll the returning officer counts the Return. votes and makes a return to the writ. Corrupt practices, such as bribery, treating, or undue Corrupt influence on the part of a successful candidate or his agent, puaciices render an election void and entail certain disqualifications as regards sitting in the Legislature and voting at an election. As a rule the use of flags, badges, colours, or other party emblems on the day of election is forbidden. Election Petitions are as in England tried before one or two judges of the Superior Court of the province. The result is certified to the Speaker of the Assembly, and the Court is authorized to report on any matter arising during the frial which in the opinion of the Court ought to be reported bo the Assembly, Before taking his seat a member is required to take the oath of allegiance, and in some provinces, e.g. Ontario, he has Ar 66 THE PROVINCIAL ASSEMBLIES. to file an affidavit that except through his agent he has not made any payment for the purposes of his election beyond his personal expenses and that he has not been guilty of any corrupt practices™. 5. QUORUM. In Quebec and Ontario the same rule prevails as in the Dominion House of Commons, and therefore 20 members are requisite to constitute a quorum : in Manitoba a majority of members is necessary; and in British Columbia the number fixed is 9 including the Speaker? 6. TuE SPEAKER. Appoiptment of Speaker. By the British North America Act 1867, s. 87, the election of Speaker in the provinces of Quebec and Ontario originally and on vacancies, the duties of the Speaker, and the procedure in case of absence of the Speaker, are governed by the rules that relate to the Speaker of the House of Commons. These rules® have practically been adopted by all the Provincial Assemblies. Power is given to the Speaker to call on any member to take the chair during a temporary absence, and if the Speaker be not present on any day the Assembly elects a member as Speaker for the day. 7 PRIVILEGES. The British North America Act 1867, did not expressly confer any privileges on the Provincial Legislatures, nor did it in express terms enable such Legislatures to define their privileges. 1 0, R. S. 1887, c. 11, 8. 15. 2 B, N.A. A. 5s 87. 0.R. 8.1887, c. 11, 8. 56. Man. 44 Vic, ¢.12, s. 4. B. C. Con. Stat. 1877, c. 42, s. 39. 3 See post, ¢. 12. 4 See 0. R. 8. 1887, c. 11, 8s. 20—36; Q. 49 & 50 Vie, c. 97,8. 7; N. B. C.S.c. 6. C.S. Man. c. 5,8. 4. B. C. Con. Stat. 1877, c. 42, ss. 338, 85. PRIVILEGES. 5Y In the session of 1868—9 the Ontario Legislature passed he, a an Act conferring on the Legislative Assembly the same defining privileges as were enjoyed by the Dominion House of Pr ie8% Commons. The validity of the Act was doubted, and the Dominion Minister of Justice referred the question to the law officers of the Crown in England, who held that it was ultra vires’, Similar Acts were passed by Quebec in 1870, by British Columbia in 1871, and by Ontario in 1876. All these were allowed to come into force, on the ground that anyone affected by them could test their legality in a court of law. Amongst the powers conferred by the Quebec Act of Ex parte 1870 are a number of powers regarding the summoning of Dan- | witnesses and the punishment of persons disobeying such summons. The validity of these sections was raised in Ez parte Dansereau®, and the appeal side of the Quebec Court of Queen’s Bench held that the power of summoning witnesses was necessarily incident to the powers of the Provincial Legislatures, and that a Provincial Legislature had “a right bo exercise such powers and privileges as are mere incidents of the powers specifically vested in them and without which they could not properly exercise the duties devolving upon them 3” A somewhat similar point was raised in Landers v. Landers v. Woodworth * with respect to the right of the Nova Scotia Hor Assembly to remove one of its members for contempt. The Supreme Court of the Dominion held that the Legislative Assembly of Nova Scotia had in the absence of express legislation on the subject, no power to remove one of its members for contempt, unless he was actually engaged in obstructing the business of the House, but that the removal of a member for not making an apology required by the 1 Can. Sess. Papers 1877, No. 89, p. 202. * 19 L. C. Jurist 210: 2 Cart. 165. 8 per Dorion C. J. 4 2 Can, 8. C. R. 158: 2 Cart. 220. 5—_9 68 THE PROVINCIAL ASSEMBLIES. House was not within the legal powers of the Assembly in the absence of express legislation. “The House of Assembly of Nova Scotia has no power to punish for any offence not an immediate obstruction to the due course of its proceedings and the proper exercise of its functions, such power not being an essential attribute, not essentially necessary for the exercise of its functions by a local legislature, and not belonging to it as a necessary or legal incident: and that without prescription or statute, local legislatures have not the privileges which belong to the House of Commons of Great Britain by the lex et consuetudo Parliament.” It may therefore be taken as established :— (1) That a Provincial Legislature has, apart from provincial legislation, those implied powers and privileges which are absolutely necessary for the discharge of its functions. (2) That no privileges or powers in the nature of privileges beyond such essentially implied powers can be exercised in the absence of a statute. The validity of a provincial statute defining legislative privileges might be supported on several grounds. First, that the Act was an amendment of the constitution of the provinces under 5. 92 (1) of the British North America Act, a view held by Sanborn, J. in Ez parte Dansereau. Secondly, that the powers and privileges in question were corollaries of the other powers conferred on the provinces, and were essential to the existence of the Legislatures. Thirdly, that in the case of the provinces existing at the time of the Union the local Legislatures enjoyed such powers and privileges, and that the Union Act cannot be said to have interfered with them. Acts defining the privileges of the local Legislature have been passed by Ontario®, Quebec? Manitoba ® British 1 0. R. 8, ec. 11, 88. 837-55. 2? 49 & 50 Vie. c. 97, 8. 46—56. 3 Con. Stat. 1880, o. 5, ss. 86-—41, PRIVILEGES. 59 Columbia ?, and Nova Scotia? No Act on the subject, except one relating to the attendance of witnesses®, has been passed in New Brunswick. Freedom of speech. The privilege of freedom of speech pein is defined in the Quebec Act as follows— “No legislative councillor or member of the Legislative Assembly shall be liable to any action, arrest, or imprisonment, or damages, by reason of any matter or thing brought by him by petition, bill, resolution, motion or otherwise before the House or by reason of anything said by him before such House.” The Ontario Act contains a similar provision ; whilst the British Columbia Act simply states that “no action at law or other proceeding shall be brought against any member of the Assembly for any words spoken by him in the Assembly.” Freedom from arrest. Freedom from arrest is restricted Poiton as in England to the members personally in civil matters. The arrest. duration of the privilege varies in the different provinces. In Ontario and Quebec it begins 20 days before the session opens and continues until 20 days after the session ends. In British Columbia the corresponding number of days is 40. In Manitoba, the privilege is restricted to the session. The privilege does not extend to offences specified in the Acts and committed by members, as for example taking bribes or disobeying the order of the House. Ezemption from serving on Juries. During the same Service on period that a member is exempt from arrest, all members, Felon. officers in the service of the legislature and all witnesses summoned to attend, are exempt from serving on juries in the province. The Quebec Act also exempts them from attending as witnesses. British Columbia exempts them only from serving as jurors. 1 40 Vic, ¢, 42, ss, 7278. 2 N. 8. RB. 8. 1884, c. 3, 55. 20—40, 3 N. B. 33 Vic. c. 33. THE PROVINCIAL ASSEMBLIES. Witnesses. Attendance of witnesses. Apart from Statute a Provincial Legislature may require the attendance of witnesses. The provincial Acts defining privileges usually regulate ‘this power and confer on the Speaker the power of issuing a warrant to compel attendance. Publication of papers, &c. Special provision regarding the publication of papers is made by the British Columbia Act, which enacts, that no action is to be brought on account of the printing or publishing of any documents or papers printed by order of either the Legislative Assembly or the Speaker thereof, and in Ontario the production of an affidavit that the publication was by order of the Legislature empowers the judge to stay all proceedings”. Punishing for breach of privilege. The Ontario, Manitoba and Nova Scotia Acts enumerate a number of offences which if committed are regarded as a breach of privilege, such as: — Assaulting, molesting, or libelling any member of the Legislature during the session or 20 days before or after the session. Obstructing, threatening, or attempting to force or intimidate any member. Bribing or attempting to bribe any member, as well as the acceptance of any bribe. Assaulting or interfering with any officer of the House in the performance of his duty. Suborning or tampering with any witness in regard to avidence to be given by him before the House or any Committee. Presenting to the House or any Committee any forged or falsified document with intent to deceive the House or Committee. Forging, falsifying or unlawfully altering any of the records of the House. 1 See ante, p. 67. 70 RESIGNATION OF MEMBERS. 71 Persons guilty of infringing any of the privileges of the House are liable to be imprisoned for such time during the session then being held as the Assembly may determine. 8. RESIGNATION oF MEMBERS. A member may resign his seat in either of the following ways : 1. By giving notice to that effect in his place in any province except Nova Scotia, New Brunswick and Prince Edward’s Island. 2. By giving written notice to the Speaker. If there be no Speaker, in Prince Edward’s Island the notice must be given to the Lieutenant-Governor: in the other provinces to any two members. In Ontario and British Columbia the notice must be under seal, and in all the provinces except Nova Scotia, New Brunswick, and Prince Edward’s Island, the signature must be attested by two witnesses. In the last-mentioned province it must be certified by a notary public. A member may resign after a general election, and before taking his seat, but such resignation is not to affect his right bo contest the election, A resignation may be either during the session or during the recess. The Speaker may resign by giving notice from his place in the Assembly, or if the House be not in session by giving notice to any two members © 0. R. 8. 1887, c. 11, 8. 25. Q. 49 & 50 Vie. c. 97, ss. 23—27. N, 8. R. 8. 1884, c. 8. N. B. Con. Stat. 1877, c. 4, 8. 76. Man. Con. Stat. c. 5, ss. 23—26. B. C. Con. Stat. 1877, c. 42, ss, 48—50, P. E. I. 19 Vic. c. 21, 8. 79, 50 Vie. ¢. 1. CHAPTER VI PROVINCIAL LEGISLATIVE COUNCILS. Number. Four provinces, viz. Quebec, Nova Scotia, New Brunswick, and Prince Edward's Island, possess Legislative Councils, in addition to Legislative Assemblies. The original constibution of Manitoba made provision for a Legislative Council of 7 members appointed for life by the Lieutenant-Governor?, but in 1876 the Council was abolished and the Legislature aow consists of a Lieutenant-Governor and an Assembly? Legislation in the North-West Territories is effected by a Council partly nominated and partly elected; and the Lieutenant-Governor of Manitoba may have the assistance of a Council in carrying on the government of the district of Keewatin. Number. The number of Councillors in each province is as follows :— Quebec, 24. Nova Scotia, 15. New Brunswick, 18. Prince Edward’s Island, 13. North-West Territories, 20. As regards British Columbia not more than 6 can be appointed by the Governor-General ; and when a district not 1 33 Vie. ¢, 3. 2 Man. 39 Vie. c. 28. QUALIFICATION OF COUNCILLORS. 73 exceeding 1000 square miles contains a population of not less than 1000 inhabitants of adult age it may return one member to the Council. Qualifications. In Nova Scotia the Licutenant-Governor is no way restricted by statute in the choice of Councillors, but in the other provinces there are certain statutory qualifications. These may be classified under the following heads, (1) citizenship, (2) age, (3) property, (4) residence, and (5) oath of allegiance. LI. Citizenship. All the provinces agree in requiring 1. Citizen a Legislative Councillor to be a British subject by birth or Hip by naturalization. 2. Age. In Quebec and Prince Edwards Island he 2. Age. must be 80 years of age. In New Brunswick and the North-West Territories it is sufficient if he be of full age. 3. Property. A property qualification is required in 3. Pro: Quebec and New Brunswick. In Quebec such qualification Po: is the same as for senators, i.e. a councillor must be legally or 2quitably seised of frecholds of the value of $4000 over and above all rents, charges or incumbrances Payable out of the same, and his real and personal property together must be worth $4000, over and above his debts and liabilities. If he is not resident in the division for which elected, his real property qualification must be in such division. In New Brunswick a Councillor must be seised of freehold estate in the province of the value of $2400 over and above all incumbrances. In Prince Edward’s Island and Manitoba no property qualification is necessary. 4 Residence. In Quebec, New Brunswick and the 4. Resi. North-West Territories residence in the province is re- ence quired, and in New Brunswick there must be residence for 5 years prior to the issue of the writ of election. PROVINCIAL LEGISLATIVE COUNCILS. 5. Oath. 5. Oath. The Councillor must in every case take the oath of allegiance’. Disqualifi- A member of the Legislative Council becomes discations. . 5.0.0 qualified from sitting :— 1. On becoming a member of the Senate or of the House of Commons of Canada. 2. By absence from the Legislature for two consecutive sessions or in Prince Edward’s Island for one session. 3. By becoming a subject of a foreign power. 4. By becoming bankrupt or insolvent. 5. By being attainted of treason or of any crime. 8. By ceasing to be duly qualified in respect of property or of residence’ In Prince Edward's Island, where the Councillors are elected, the same persons who are disqualified from being candidates for the Assembly are also disqualified from being slected to the Council ® How appointed. In Quebec, New Brunswick and Nova Scotia, Councillors are appointed by the Lieutenant-Governor in the Queen’s name under the great seal, and in Quebec one Councillor has to be chosen from each district represented by a Senator in the Dominion Parliament * Prince In Prince Edward’s Island Councillors are elected. The Pm province is divided into seven electoral districts, six of these return two members each, and one district (Charlottetown) returns one member. The voters are the same as for the Provincial Assembly”. In the North-West Territories the Governor-General by 74 North-West Territories 1 See B, N. A. Act. 1867, ss. 73, 23, N. B. Con. Stat. 1877, c. 4, sa. 4, 11. P. E. I Rev. Stat. 25 Vie. ¢. 18, ss. 11, 12, 25 and R. 8. C. ¢. 50, ss. 20, 21. 2 B. N. A. Act, 1867, s, 74. N. B, Con. Stat. 1877, c. 4, ss. 3—8. P. E. I. 25 Vie. ¢. 18, 8. 11-16. #8 See ante p. 61. 4 B. N. A. Act. 1867, ss. 22, 72. Q. 49 & 50 Vie. ¢. 97,8. 4. N.S. R. 8S. 1884, ¢. 8, 8. 1. N. B. Con. Stat. 1877, ¢. 4, s, 2. 5 P.H. I 25 Vie. e. 18. ss. 3—86. THE SPEAKER. 75 and with the advice of his Privy Council has power to appoint six members by warrant under his privy seal’. As regards the other members they are elected by bona fide male residents and householders of adult age, within the electoral district, not being aliens or unenfranchised Indians, and who have resided in such electoral district for at least 12 months immediately preceding the issue of the writ for the election? Term of office. In Quebec, New Brunswick, and Nova Term of Scotia, Councillors hold office for life, unless they resign °fficeor become disqualified. In Prince Edward's Island a new election takes place for Charlottetown every eighth year, and for other districts every fourth year, from the date of the last election to the Council ®. In the North-West Territories elected members of the Council hold office for two years but are eligible for reelection 4 Quorum. The number required to form-a quorum of the Quorum. Councils is as follows : in Quebec, 10 including the Speaker ®; in New Brunswick, 8¢; in Prince Edward’s Island, 6 in addition to the President bi and in the North-West Territories a majority of the members ®, The Speaker or President. In Quebec the Speaker is speaker, appointed by the Lieutenant-Governor from amongst the members of the Legislative Council ®. In New Brunswick and Prince Edward's Island the President of the Council is elected by the Councillors.® VR. 8. C.c 50,8. 7 2 Ib. s. 20. ! P, E. I. Rev. Stat. 25 Vic. c. 18, 8 17. 4 BR. 8. C.c. 50,5. 22. > B. N. A. A, 1867, 8. 78. & N. B. Con. Stat. 1877, c. 4, &. 8. ” P. E. I Rev. Stat. 25 Vic. c. 18, s. 29. 8 BR. 8. C. c. 50, 8. 28. ® B.N. A. A, 1867, &. 77. © N. B. Con. Stat. 1877,c. 4,5. 7. P.E.L Rev. Stat. 25 Vie. ¢. 18, 8. 27. 76 PROVINCIAL LEGISLATIVE COUNCILS. Privileges. In Quebec the Speaker has a vote and a casting vote, In Prince Edward’s Island he has only a casting vote ® Privileges. Members of the Legislative Council in Quebec enjoy the same privileges as members of the Assembly”. In the other provinces that have Legislative Councils Acts have not as yet been passed to define the privileges of such Councils. Resignation. A Legislative Councillor may resign his seat by a notice in writing under his hand and seal addressed to he Lieutenant-Governor? LB. N. A. A. 1867, s. 79. P. E. I. Rev. Stat. 25 Vic. c. 18, s. 29. # See ante p. 69. * B. N. A, Act. 1867, ss. 74, 30. N. B. Con. Stat. 1877,¢. 4,8. 5. P.E.I 25 Vie. e. 18, 8. 19. CHAPTER VII METHOD OF LEGISLATION. THE procedure and practice of the Provincial Legislatures are regulated partly by the provisions of the British N orth America Acts, partly by provincial statutes, partly by orders and resolutions of each Legislature, and partly by usages which though unwritten are recognized and followed. The hour of meeting varies in the different Provinees : Hour of in British Columbia, it is 11 o'clock, in Nova Scotia 12 o'clock, Meeting. and in Ontario, Quebec and Manitoba 8 o'clock. If the business of the House is not concluded at 6 o'clock the Speaker leaves the chair until half-past seven. The House at its rising on Friday as a rule stands adjourned until the following Monday. Order of Business. The business in the Provincial Duley of Assemblies is generally as follows: Every day certain routine business is taken in the following order ;— Ll. Presenting Petitions. 2. Reading and Receiving Petitions. 3. Presenting Reports by Standing and Select Committees. 4. Motions, After the above routine business is disposed of, the order of business varies according to the day and the province. Order of business. Public Bills. Introduetion. 78 METHOD OF LEGISLATION. In Ontario, Quebec, and British Columbia the following rules prevail. On one day the order of business is:— 1. Private Bills. 2. Questions put by Members. 3. Notices of Motions. 4. Public Bills and Orders. On two other days in the week the order is:— I. Government Notices of Motions. 2. Government Orders. 3. Public Bills and Orders. 4. Questions put by Members. 5. Other Notices of Motions. 6. Private Bills. On the remaining two days in the week the order is :— Questions put by Members. Notices of Motions. Public Bills and Orders. Government Notices of Motions in Quebec. Government Orders in Quebec. 1. Private Bills. 5. Public Bills and Orders. 6. Private Bills, in Ontario. 7. Government Notices of Motions, tn Ontario. 8, Government Orders, tn Ontario. In Nova Scotia the same order of business is followed rom day to day. Public Bills pass through the same stages as in the Dominion Parliament, except that in some provinces the consent of a second House is not required. All Bills are introduced upon motion for leave specifying the title of the Bill, or upon motion to appoint a committee to prepare and bring it in: no Bill can be introduced in blank. [. METHOD OF LEGISLATION. 7S Money bills can originate only in the Legislative Assembly and no appropriation can take place unless first recommended by a message from the Lieutenant-Governor. Every bill requires except on urgent or extraordinary Readings. occasions to be read three times on separate days. After the second reading the House goes into Committee, and all amendments made are reported to the House. After report the Bill is open to debate and amendment before it is: ordered for third reading. Private Bills are initiated by way of petition. No petition Deiat for a private Bill is received as a rule after the first two weeks of a session, and no private Bill can be presented after the first three weeks. Each Legislature has standing orders, relative to such petitions, prescribing what notice of the application shall be given and what particulars must be stated. The petition comes before the Committee on Standing Orders, and if such Committee reports favourably, the Bill is introduced on motion for leave. After being read a second fime it is referred to a Committee, and the subsequent procedure is similar to that prevailing in the Dominion Parliament, CHAPTER VIII. THE LIEUTENANT-GOVERNOR. IN each province an officer called the Lieutenant-Governor, appointed by the Governor-General in Council under the great seal of Canada, presides over the administration and forms a part of the Legislature. As he is not appointed by Her Majesty, and holds no commission from Her, he cannot be regarded as personally representing Her: he is a Dominion officer, and is responsible to the Governor-General and Council *, Form of The Form of Commission appointing a Lieutenant-Commis- y Son, Governor is as follows :-— L. S. Canada. Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith &c. To the Honourable A. B. of >f Canada. in our Dominion Greeting :— Whereas we did by Letters Patent under the Great Seal of our Dominion of Canada bearing date at the city of Ottawa the day of in the year of our reign appoint A. B. to be Lieutenant-Governor of the Province of for and during our will and pleasure as upon relation being had to the said recited Letters Patent will more fully and at large appear. | See Lenoir v. Ritchie, 3 Can. 8. C., p. 575. HIS COMMISSION. 81 And whereas the said A. B. has since died and we have thought fit to appoint you to be such Lieutenant-Governor in his stead. Now know ye, that we reposing special trust and confidence in the prudence, courage, loyalty, and Integrity of you the said C. D. of our especial grace, certain knowledge, and mere motion have thought fit to constitute and appoint you, and in accordance with the provisions of the Act of Parliament of the United Kingdom of Great Britain and Ireland passed in the thirtieth year of our reign intituled “the British North America Act, 1867,” do hereby constitute and appoint you to be the Lieutenant-Governor in and over the Province of — — during the will and pleasure of our Governor-General of Canada. And we do hereby authorize and empower and require and command you in due manner to do and execute all things that shall belong to your said command and the trust we have reposed in you, according to the several provisions and directions granted or appointed you by virtue of this our Commission and of the Act above mentioned, according to such instructions as are herewith given to you or which may from time to time be given to you in respect of the said Province of ——— under the sign manual of our Governor-General of our said Dominion of Canada, or by order of our Privy Council of Canada, and according to such laws as are or shall be in force within the said Province of — In testimony whereof we have caused these our Letters t0 be made Patent and the Great Seal of Canada to be hereunto affixed, Witness &e. By command Secretary of State. Attorney-General of Canada. Vv 19 THE LIEUTENANT-GOVERNOR. I hereby certify the within to be a true and faithful -opy of the record of the original commission as entered nN Deputy Registrar-General of Canada. Functions ~~ The Lieutenant-Governor discharges important functions Pend as regards the Legislature and the Administration. nt or. As regards the Provincial Legislature his chief duties are :— To summon, prorogue, or dissolve the Legislature’. To appoint Legislative Councillors in Quebec, New Brunswick and Nova Scotia. To appoint the Speaker of the Legislative Council of Quebec’, To recommend the appropriation of the revenues and all money bills®. To assent to or veto bills, or reserve them for the :onsideration of the CGovernor-General®, In British Columbia he is authorized to transmit by message to the Assembly the draft of any laws which it may appear to him desirable to introduce ®, or to return bills for reconsideration with such amendments as he may think fit. Asregards As regards the Executive, the Lieutenant-Governor selects 8 ie. his Ministers, but he is bound by constitutional practice to shoose them from that party which has the confidence of the majority in the Legislative Assembly. He may dismiss his Ministers or call on them to resign, but for the due and proper exercise of his power he is responsible to the Governor-General in Council & He usually, with the assent of his Executive Council, and L See ante, pp. 44—52. 2 B. N. A. Act, 1867, s. 77. 3 1b. 88. 90, 54. + Ib. 8. 90. B. C. 34 Vie. ¢., 42, 8, 42, 8 See post, Chap. xv. HIS POWERS. 33 subject to the provisions of any Act regulating the Civil Service in the Province, appoints all officers necessary for carrying on the work of administration. Many other important powers connected with provincial administration have been conferred on the Lieutenant-Governors by the statutes of the respective provinces. A Lieutenant-Governor holds office as a rule for a period Term of of five years? but he may be removed at any time by the ofee. Governor-General, the fact of such removal being communi-“ated to the Senate and to the House of Commons. In *xercising his power of removal the Governor-General is required to got by the advice of his Ministers? B. N. A. Act, 1867, s. 59. 2 See post, chap. xv. Ro CHAPTER IX. THE PROVINCIAL ADMINISTRATION. IN each province the Lieutenant-Governor is assisted in the discharge of his duties by an Executive Council. The members of the Council are appointed by him, and in accordance with constitutional practice, as has been pointed out, he is expected to choose his councillors from that party which has a majority in the Assembly. The Council fulfil in regard to the province functions similar to those discharged by the Dominion Privy Council in regard to the Dominion. The Council in fact is a ministry, and the Lieutenant-Governor in the discharge of his duties is expected to follow its advice. Number of The number of members of the Executive Council varies Ministers. jy, the different provinces from four in British Columbia to nine in Prince Edward's Island. The Council of the North-West Territories, which exercises legislative as well as sxecutive functions, consists of 18 members. Ministers Though as a rule each member of the Council has charge without of a department of State, occasionally some members may be without office. For instance, at the present time in New Brunswick two members, in Nova Scotia three members, and in Prince Edward's Island six members, are without office. The departments of State over which always a minister oresides in each of the seven provinces are the following: THE PROVINCIAL ADMINISTRATION. 85 The department of the Attorney-General. The department of Public Works, The department of Crown Lands. The office of Secretary of State. The office of Treasurer. Besides the above departments, Ontario assigns a sinister to the department of Education, Quebec one to. Agriew - bure, and Manitoba one to Railways. Of the ministry in Prince Edward's Island only three preside over departments, one minister undertaking the duties of Secretary, Treasurer, and Commissioner of Crown Lands. i The following table shows the distribution of departments in the different provinces ; the provinces being denoted by their initial letters, . PEL Attorney-General 0. Q. N.S. N.B. M. i Secretar 0. Q NS] yp M BC ) , M P.EIL Treasurer 0. Q. A bo Crown Lands 0 Q , N.B. B.C. N.S. MAT B.C Public Works 0. N.B. My[ B.C. : 2 M PEL Agriculture 1 Railways M. Education 0 A brief account may be given of some of the more important departments. Department of the Law Officer. The Attorney-General of each Province holds a most important position in the Ministry, Not unfrequently he is premier. In some cases he is assisted in his department by a Solicitor-General. As law officer he is the official legal adviser of the Lieutenant-Governor, He has the general superintendence of all matters “onnected with the administration of justice in the province, and it is hig duty to see that public affairs are administered In accordance with the law. * Not the least important of his Including mines. 6 THE PROVINCIAL ADMINISTRATION. functions is to advise the Lieutenant-Governor on the competence of the Legislature to pass any particular law. Department of Provincial Secretary. The Provincial Secretary is charged with very varied duties. Besides conducting all correspondence on behalf of his Government, he usually acts as keeper of the Great Seal of the province and as provincial registrar. He is intrusted, except in Ontario, with the control of education, and is charged with the administration of municipal and police laws, the care of the insane, the incorporation of companies, the collection of statistics and Government printing. - Department of Provincial Treasurer. The Provincial Treasurer has the control and superintendence of all financial affairs. He advises on receipts and expenditure and is charged with the preparation of the budget. All provincial revenue as it is collected is paid into banks to the credit of the Treasurer. Moneys are paid only on the warrant of the Lieutenant-Governor and by cheque signed by the Treasurer or his assistant and countersigned by the auditor. On the latter official rests the duty of seeing that no warrant issues for payment of any moneys not appropriated by the Legislature. Department of Public Works. This provincial department is charged with the construction and maintenance of all public works in the province. The construction of railways, canals, roads, bridges, buildings and other state undersakings is an important part of the work of administration and government. In Manitoba a separate department has been created for Railways. Department of Crown Lands. The department of Crown Lands has the control of all lands belonging to the province. The minister grants licences, arranges sales, and enforces forfeitures. Department of Education. All matters relating to Edu- EDUCATION. B7 cation are within the jurisdiction of the several provinces, and though the systems adopted differ in details, all are based on the principle of free education, the funds being supplied by the province or by local taxation. In all provinces except Ontario, Quebec, and Manitoba the schools are unsectarian; in the three provinces mentioned there are separate schools for Roman Catholics. Ontario has placed its educational system under a minister; in the other provinces the education is in charge of a superintendent of education. In the North-West Territories the educational system is under the control of a board of Education, composed of five members, viz. the Lieutenant-Governor and two Protestant and two Catholic members appointed by the Lieutenant-Governor in Council. The department of Education in Ontario has very ex- Ontario. tensive powers in regard to the Normal, High, Public, and Separate Schools in the province. Power is given fo if to make regulations for the organization, discipline, and sOvernment of schools, the equipment of school houses, the choice of text books, and the qualifications of inspectors, ®Xaminers, teachers and assistants in High Schools: to appoint inspectors and central examiners: to constitute model schools: to set apart schools or colleges for the raining of model teachers: to prescribe the conditions ander which pupils will be admitted into High Schools: nd to make regulations respecting fees and certificates. Power is also given to the department to establish meteorological stations in connection with High Schools ™. R. 8. 0. 1887, c. 224, CHAPTER X. THE PROVINCIAL JUDICATURE. B. N. A. By Sections 91 and 92 of the British North America Act, SI 1867, “the administration of justice in the Provinee, including the constitution, maintenance, and organization of Provincial Courts, both of Civil and Criminal Jurisdiction, and mcluding procedure in civil matters in these courts” was placed under the jurisdiction of the provinces, whilst criminal law and criminal procedure were placed under the Jurisdiction of the Dominion. By a subsequent section the Governor-General was authorized to appoint the judges of the Superior, District, and County Courts in each province, except those of the Courts of Probate in Nova Scotia and New Brunswick. The judges of these last-mentioned courts as well as magistrates and justices of the peace, are appointed by the Lieutenant-Governor of each Province, though the Governor-General also as representing the Crown may appoint justices. In considering the Courts found in the different provinces a distinction must be drawn between (1) Courts of Civil jurisdiction and (2) Courts of Criminal Jurisdiction. [ Courts oF CIVIL JURISDICTION. (QUEBEC. Justices Justices of the Peace have jurisdiction in certain civil of the h Peace. ~~ Matters, such as the recovery of school taxes, assessments for QUEBEC. 89 ds, building or repairing churches, parsonages or churchyard, damages caused by animals, disputes between masters and servants in the county, seamen’s wages, claims of pa nor against pawnbrokers, and other matters specified in sp statutes? Turisdieti ery Recorder's The Recorder's Court has Jurisdiction for the recovery Zp of certain municipal claims and in disputes between e te and lessees, and between master and servan | arisdicti i ted Trinity Trinity House exercises jurisdiction in a comnecte Doni with the shores of the St Lawrence and of the rivers on 2 e into it, and also with regard to the wages and indemniti due to pilots? 3 Commissioner's Court. This Court is held before one or Los more unpaid Commissioners in such parishes, townships, or Court. , : olin °xtra-parochial places as may be appointed by the Lieutena; Governor. So The Court has an ultimate jurisdiction. (@) in all suits purely personal or relating to moveable Property, which arise from contract, where the sum or value demanded does not exceed 25 dollars and the debtor resides in the locality of the Court, or if the debtor resides in the same district and within five leagues and the debt has been contracted in the locality, or if the debtor resides in another locality where no court is held; suits for slander, assault and battery, recovery of any fine or penalty, and suits relating bo civil status, paternity or seduction, excepted *; (6) in suits for the recovery of assessments not exceeding 25 dollars imposed for the building of churches, barsonages, and churchyards. Circuit Courts. The Circuit Court is held before one circuit judge of the Superior Court in each judicial district and in court, such of those counties (with certain exceptions) in which the tion. " Civil Code, Art. 1216. 2 Ib, Art. 1217. 8 Ib, 1218, 4 Th. Arts, 1188, 1189. 90 THE PROVINCIAL JUDICATURE, Superior Court does not sit as may be selected by the Fovernor. Ultimate The Court has an ultimate or final jurisdiction to the Jurisdie- . . Norns, exclusion of the Superior Court, (a) in all suits whenever the amount or value of the thing demanded is less than 100 dollars except cases within the exclusive jurisdiction of the Admiralty, and (0) in all suits for school taxes or school fees or zoncerning assessments for building or repairing churches, parsonages, or churchyards, whatever may be the amount of such suits, Jurisdie- The Court has an original jurisdiction to the exclusion al to of the Superior Court but subject to appeal, ippeal. (a) in all suits in which the sum or the value of the thing demanded amounts to or exceeds 100 dollars but does not exceed 200 dollars ® (b) in all suits for fees of office, duties, rents, revenue or sums payable to the Crown or which relate to any title to lands or tenements, annual rents or such like matters, whereby rights in future may be bound, even though the amount claimed be under 100 dollars, subject to the right of the defendant to have the suit removed to the Superior Sourt ®, The Court has a concurrent jurisdiction with the Superior Court by means of certiorart over judgments rendered by the Commissioner's Court or by Justices of the Peace within the district. The Court has an appellate jurisdiction over judgments rendered by a Commissioner's Court or by Justices of the Peace for taxes, assessments or penalties, imposed under the Municipal Road Act of Quebec. Superior Court. The Superior Court of Quebec is composed of a Chief Justice and 29 puisne judges *. L Civil Code, Art. 1053. : $s Th. 1054. 1058. Concurrent Jurisdic-Jon. Appellate Jurisdic-Hon. Superior Tourt. 2 Civil Code, Art, 1053. 1 Q. 50 Vie. e. 11. QUEBEC. )1 The province is divided into 20 judicial Hatakety an sittings of the Court are held at the chef-liew of eac district. i The Court has original jurisdiction in all suits or cotions Jurlalic which are not exclusively within the jurisdiction of the Circuit Court or of the Admiralty. _ Court of Review. In the following cases a review oh Guy case tried before a Circuit or a Superior Court may be j ior Court had before three judges of the Superior ; (a) upon every final judgment on which an appeal lies (b) upon every judgment or order given by a judge in summary matters contained in the third part of the Civil Code ; (¢) upon any judgment to set aside an attachment before Judgment or capias ad respondendum*; (d) upon judgments given against a defendant by default in cases of attachment” If the judgment reviewed be affirmed the right of appeal fo the Queen’s Bench is taken away". Court of the Vice-Admiral. This Court, presided over Court of by a judge, exercises Jurisdiction in all Admiralty causes. ol, Court of Queen's Bench. The Court of Queen’s Bench is court of composed of a Chief Justice and five puisne judges, but the Quads judges of the Superior Court may be called on to sit in the Queen’s Bench. Four judges form a quorum and Sittings are held in Quebec and Montreal four times a year. The Court acts as a Court of Appeal from the Superior Jurisdicand the Circuit Courts’, tion. An appeal lies from the Superior Court, (@) against any judgment founded upon a general verdict given by a special jury on any question of law Q. 34 Vie. c. 4. 2 Civil Code, Art. 483. 8 Q. 37 Vic. ¢. 6. Q. 43 and 44 Vie. e. 4. 5 (ivil Code, Arts. 1114-1116. 19 THE PROVINCIAL JUDICATURE. (b) against any other final judgment except in cases of certiorart, or matters affecting municipal corporations or offices, or where the amount in question does not exceed $200 and the judgment has been confirmed in review before shree judges ; (¢) against interlocutory judgments in certain cases. Appeals An appeal lies from a Circuit Court ie (a) where the sum or value of the thing demanded Courts. amounts to $100, except in suits for the recovery of assessments for schools or schoolhouses, or for monthly contributions for schools or for the recovery of assessments imposed for the building or repairing of churches, parsonages, and churchyards. If the evidence has not been taken down in writing the appeal can be only on points of law; (6) where the demand is less than $100 but relates bo fees of office, duties, rents, revenues or sums payable to Her Majesty, or to titles to lands or tenements, annual rents or other matters in which the rights in future of the parties may be affected ; (¢) in all actions in recognition of hypothec. Special measures regulate appeals from Judgments given in the Magdalen Islands ONTARIO. Division Yourt. The Division Courts. In each county there are Courts called Division Courts, not less than three nor more than twelve in number, presided over by the Junior County Court Judge. Each Judicial District is divided into Court Divisions, and once in two months a Court is held in each Division? Causes are heard before the Judge alone, but in actions of tort where the amount sought to be recovered exceeds L Civil Code, Art. 1133, 2 0.R. 8. 1887, ¢. 51. ONTARIO. 03 $10, and in all other actions when such amount exceeds $20, either party may demand a jury. The jurisdiction extends to, (a) all personal actions where the amount claimed does not exceed $60; (6) all claims of debt, breach of contract or money demand where the balance claimed does not exceed $100; (c) all claims of debt or money demand where the balance claimed is under $200 and the original amount is ascertained by signature of the defendant. The jurisdiction does not however extend to actions for gambling debts, liquor sold in a tavern, ejectment, toll, custom, or franchise, title to land, malicious prosecution, libel, slander, breach of promise, or against Justices of the Peace or relating fo the validity of wills and settlements. An appeal is allowed to the Court of Appeal where the Appeal. amount, in dispute exceeds $100. Jurisdietion. A County Court is held in every county and is presided County over by a judge who acts as a Local Judge of the High Court Court in all matters assigned to him by Statute or by the Rules of Court. The jurisdiction of the County Court extends to, 1. all personal actions where the debt or damage claimed does not exceed $200. 2. all causes relating to debt, covenant, and contract up to $400 where the amount is liquidated or ascertained by the act of the parties or by the signature of the defendant. 3. proceedings on bail bonds given to the Sheriff in any County Court whatever be the penalty. 4. recognizances of bail taken in County Courts to any amount. 5. actions of replevin where the value of the goods or property taken does not exceed $200. 6. interpleader matters. AE THE PROVINCIAL JUDICATURE. 7. actions for the recovery of land where the yearly value of the premises or the rent payable does not exceed $200, (a) where the interest of the tenant has suffered or has been determined by notice to quit, (3) where the rent is 30 days in arrear and the landlord has the right to re-enter. It is expressly declared that the Court shall not have jurisdiction : 1. where the title to land is in question except in she above-mentioned cases. 2. where the validity of any devise, bequest or limisation under any will or settlement is disputed. 3. in cases of libel, slander, crim. con., or seduction. 4. in actions against a Justice of the Peace for anything done by him in the execution of his office if he objects thereto®. Surrogate Court. Maritime Court. Surrogate Court. In each county the senior County Court Judge holds a Surrogate Court, which has jurisdicsion in all testamentary matters and causes and in relation to the granting and revoking probates of wills and letters of administration, subject to an appeal to the Chancery Division of the High Court* The Court has a concurrent jurisdiction with the High Court regarding the custody of infants ®, The Maritime Court was constituted by the Dominion Statute 40 Vic. c. 21. It is composed of one Judge for the Province and Surrogate Judges for certain localities appointed by the Governor in Council. It has jurisdiction in all such matters (with certain exceptions) arising out of or connected with navigation, shipping, trade or commerce on any river, lake, canal or inland water of which the whole or part is within the Province of Ontario, as would belong to any existing Vice-Admiralty Court if its process extended to Ontario. By an Ontario Act* the Judge of the Court has = 0, R. 8. 1887, c. 47, 8s. 18—22. 2 0. R. 8. 1887, c. 50. t Ib. ¢. 187, 8. 1. 4 0. R. S. 1887, c. 43. ONTARIO. 35 the same authority as a County Court Judge regarding the ase of the Court-house or other buildings for the adminis-Sration of justice. Heir and Devisee Commission. This Commission con- Heir and sists of the Judges of the Superior Courts and of such other Poston persons as may be appointed under the Great Seal. The sion duties of the Court, which may be held by three Commissioners, are to ascertain, determine and declare who is the party in whose favour whether as heir, devisee or assign, she patent ought to issue for the lands which form the subject matter of the claim brought before the Commission *, Supreme Court of Judicature. In 1881 the separate Courts of Appeal, Queen's Bench, Chancery and Common Pleas were consolidated into one Court called the Supreme Court of Judicature for Ontario This Supreme Court was divided into two divisions, (1) the Court of Appeal, and (2) the High Court of Justice. The High Court is divided into three Divisions, the 1. The Queen’s Bench Division, the Common Pleas Division and mr the Chancery Division, presided over by the Chief Justice of the Queen’s Bench, the Chief Justice of the Common Pleas and the Chancellor respectively. Sittings of the High Court for the trial of causes and Assizes. matters are held twice a vear in each county or union of ounties. The High Court possesses all the powers and jurisdiction that were on the 5th Dec. 1859 enjoyed by the Superior Courts of Common Law in England; and on its Equity side it possesses in regard to fraud, accident, trusts, executors and administrators, partnership, account, mortgages, awards, dower, infants, idiots, lunatics, waste, specific performance, discovery, letters patent, and multiplicity of suits, powers similar to those exercised by the Court of Chancery in 0. R. 8. 1887, ¢. 27. 2 0, 44 Vie. c. 5. 96 THE PROVINCIAL JUDICATURE. England on the 4th March, 1837, as well as the same jurisdiction as that possessed by the Court of Chancery on the 10th June, 1857, to administer justice in all cases where there existed no adequate remedy. Various other powers are possessed by the High Court, as English legislation is followed in so far as the same is appropriate to the wants of the Province. Gout 7 The Court of Appeal consists of a Chief Justice and three Justices. The jurisdiction of the Court extends to hearing Appeals, 1. from the Queen’s Bench, Common Pleas and Chancery Divisions of the High Court. 2. from the Division Court. 8. from County Courts where the case is heard before a judge without a jury? Appeals from the Court of Appeal to the Supreme Court of Canada respecting property and civil rights are not allowed without special leave, unless the title to real estate or the validity of a patent is affected, or ‘unless the matter in controversy exceeds the value of $1000, or unless the question relates to the taking of an annual or quarterly rent, customary or quarterly duty, or a like demand of a general nature affecting future rights®. Appeals from the Court of Appeal to Her Majesty in Council are prohibited except when the matter in controversy exceeds $4000 in value, or relates to the taking of a rent or any like demand affecting future rights®. This however does not affect the right of the Judicial Committee of the Privy Council to sustain any appeal as a matter of grace. 1 0, R. S. 1887, c. 44, ss. 20—42. 3 Ih. co. 42. 8, 2. 2 0, RB. §. 1887, ¢. 44. 2 0. R. 8. 1887. o. 41. NOVA SCOTIA. 57 Nova ScoTIA. Justices. of the Peace. Tn all actions of debt where the Justices, cause of action does not exceed $20 one Justice has jurisdiction, and where the cause of action exceeds $20 and does not exceed $80 jurisdiction may be exercised by any two Justices of the county in which the defendant resides or in which the debt or cause of action arose. In the latter case either party may have the case tried before a jury? County Courts. Seven County Courts have been es- County ‘ablished, one for each of the seven districts into which Co" the Province has been divided”, The Judges of the County Courts are also Masters of the Supreme Court ®, The County Courts have jurisdiction®, (a) in all actions ex contractu where the debt or damage claimed does not exceed $400 and is not less than $20 : (b) in all other actions where the damages claimed do not exceed $200; (¢) in all actions on bail bonds to the Sheriff in any cause in a County Court; : (d) in all actions against the Sheriff or officer of a County Court for nonfeasance or malfeasance in connection With any matter transacted in the County Court. Except as to actions of debt or assumpsit in which the cause of action is less than $80, the above jurisdiction is concurrent with that of the Supreme Court. The following matters have been expressly excepted out of the jurisdiction of the Courts, viz. actions where the title to land is in question, or where the validity of any devise, bequest, or limitation is disputed, as well as actions for crim. “on., seduction, and breach of promise of marriage. * N. 8, R. 8.1884, ¢. 102, s. 1. Z N. 8., R. B. ¢. 105, s, 2. ' N. 8. 49 Vie. ¢. 50. 4 N. 8., R. 8. 1884, c. 105, s. 16. 1) Admiralty Court. Probate Court. Divorce Court. Supreme Cort. ie THE PROVINCIAL JUDICATURE. The Courts have jurisdiction in appeals from Justices, Stipendiary Magistrates, City and Municipal Courts. The Admiralty Court exercises jurisdiction in all Admiralty matters, Probate Court. This Court has jurisdiction in all matters relating to the probates of wills and the administration of agtates ! Court of Matrimonial Causes and Divorce. This Court is presided over by the Equity Judge and has jurisdiction over all matters relating to prohibited marriages and divorce; an appeal lying to the Supreme Court in banc’. The Supreme Court. The Supreme Court resembles in organization and jurisdiction the Supreme Court of Judicature in England. It is composed of a Chief Justice and six Puisne Judges. Circuits of the Court are held twice a year in each county and extra sittings are in the summer held in certain towns. The Court is invested with the powers that were formerly exercised by the Courts of Queen’s Bench, Common Pleas, Chancery and Exchequer in England and also with all the powers, except those relating to Probate and Surrogate Courts, that are now exercised in England by the Supreme Court of Judicature® It also exercises an appellate jurisdiction in cases from County Courts. NEw BRUNSWICK. Justices. Justices’ Civil Courts. Justices of the Peace have in the Counties in which they reside and for which they have been appointed Justices, jurisdiction in the following actions: 1 N. 8., R. 8. 1884, e. 100. 2 N. 8., R. 8. 1873, e. 126, 8. 10, N. 8. 49 Vic. c. 49. 2 N. S., BR. 8. ¢, 104. NEW BRUNSWICK. 99 t. Actions of debt where the sum demanded does not exceed $20. 2. Actions of tort to real or personal property where the damages claimed do not exceed $8. The jurisdiction does not extend to actions where the Queen is a party, or where the title to land is in question, or the action is for a debt exceeding $20 unless the same has been reduced by payment or abandonment to that sum, or where the action is for debt against personal representatives, trustees of absconding debtors, assignees of bankrupts or insolvents, or banking or insurance companies’, A rehearing may on affidavit be obtained before a Justice of the Supreme Court. Local Courts. Stipendiary and Police Magistrates have Local Jurisdiction in the county, town, parish, or district for which Carts they are appointed, 1. in all actions where a Justice of the Peace has Civil jurisdiction ; 2. in all actions of debt where the amount claimed does not exceed $40 ; 3. in all actions of tort to real or personal property where the title to land does not come in question and where the damages do not exceed $16. Civil Courts of St John, Fredericton, Portland. Special City Civil Courts have been established in certain towns. Courts. The Small Debts Court of Fredericton has jurisdiction in actions of debt up to $40, and in tort up to $16. The City Court of St John and the Civil Court of Portland have jurisdiction in actions of debt up to $80. and in tort up to $20% Parish Courts. Tn each parish a Court is held before a parish Commissioner, being a Justice of the Peace appointed by the Cos. Lieutenant-Governor in Council ®. 1 ¢. 8, N. B., c. 60. ? 0. 8, N. B. cc. 53—57. $ 0.8, N. B. c. 59, 43 Vic. c. 12. H_9 100 THE PROVINCIAL JUDICATURE. Divorce Court. Probate Yourt. County Courts. The Court has jurisdiction in 1. actions of debt where the sum demanded does not exceed $40; 9. actions of tort to real or personal property where the damage claimed does not exceed $16. The same causes that are excepted out of the jurisdiction of the Justices Court are also excepted out of this Court substituting $40 for $20. Court of Divorce and Matrimonial Causes. By the 31 Geo. 3, ¢. 5 (N. B.) the Governor and Council were constituted a Court for hearing and determining causes relating bo marriage and divorce. By the 23 Vie. ¢. 37 (N.B) a Court of Divorce and Matrimonial Causes was established, and the jurisdiction formerly vested in the Governor and Council in respect of marriage and divorce is now vested in this Court’. An appeal lies to the Supreme Court. Probate Court. Probates of Wills and Letters of Administration were at first granted by the Governor under the Royal Instructions; Surrogates being appointed for that purpose in the different counties®. The Court of Probate has now full jurisdiction in all matters relating to wills or administrations, an appeal lying to the Supreme Court® Qounty Courts. When the province was first established County Charters or Letters Patent were issued creating the several districts, into which the province was for that purpose divided, separate counties, and constituting a separate judicial system for each district. Amongst the Courts established were the Inferior Courts of Common Pleas with jurisdiction in all causes arising within the county and in which the amount claimed exceeded 40s. and did not exceed £50 in value and in which the title to lands did not come Lt C, 8., N. B. e. 50. 2 Report on Judicial Institutions of N. B. p. 85. s 0 9 N. B. ec 52, 41 Vie. c. 30. NEW BRUNSWICK, 101 in question. In 1795 the jurisdiction was extended > giving to these Inferior Courts a concurrent jurisdiction wi the Supreme Court! These Inferior Courts of Jormon Pleas were abolished in 1867 and County Courts substitute for them 2 A County Court sits in each county from time to time Jurisdic and has jurisdiction in all personal actions of debt, covenant tion. and assumpsit where the debt or damages claimed do not exceed $200, and in actions on bonds given to the sheriff or otherwise in any case in a County Court and in actions on other bonds where the real debt does not exceed $400°; except (1) where the title to land is in question, (2) where the validity of any devise, bequest or limitation is disputed, (3) crim. con. and seduction, (4) breach of promise of Iarriage, (5) actions against justices of the peace for anything done in the execution of their office *, An appeal lies to the Supreme Court by any party feeling himself aggrieved by the decision of a judge upon any point of law, or with the charge to a jury, or with the decision upon motion for a non-suit or for a new trial or in arrest of judgment ®. County Courts have concurrent jurisdiction with the Circuit Courts in all criminal cases except capital offences ® Supreme Court. The Supreme Court of New Bruns- Supreme wick was established by General Thomas Carleton, the first Gourh Governor, under the authority of the King’s Commission. It was invested with the powers and authorities of the three Superior Courts of Law at Westminster Hall, Its constitution and practice have from time to time been modified by local statutes”. 1 N. B. 85 Geo. 3, ¢. 2: see Report of Commissioners on Judicial Institu. tions of the Province, 1833. ® N. B. 80 Vie. ¢. 10. ¢ N. B. 49 Vie. c. 18. $C. 8,N.B.c 51. 5 Th. 8. 50. 8 Ih. =. 62. 7C. 8, N.B. 37. N.B. 36 Vic, c. 31; 42 Vic. c. 7; Ib. c. 8; 44 Vie, c., 12. 102 THE PROVINCIAL JUDICATURE. In 1879 a separate Judge in Equity was appointed to hold separate Equity sittings and to exercise all the powers of the Supreme Court in Equity. The original jurisdiction of the Supreme Court was preserved and an appeal was allowed to the Court from the Judge in Equity". The Court is now composed of a Chief Justice, a Judge in Equity and four Puisne Judges®. Sittings of the Court are held at Fredericton and St John, and the Court goes on circuit in the different counties. The Judge in Equity holds sittings in counties at such times and places as he may appoint’. By a recent Act® the Lieutenant-Governor is authorized to appoint three referees to assist in discharging the business of the Supreme Court in Equity. MANITOBA. County Courts. County Courts are held in counties from time to time". The Courts have jurisdiction, (a) in all personal actions of fort where the damages claimed do not exceed $100; (0) in all actions of replevin where the value of the goods does not exceed $100; (c) in all actions ex comtractu where the amount payable does not exceed $250. The following actions are excepted : (a) for a gambling debt; (b) for spirituous liquor drunk in a tavern; (¢) on notes of hand given for a gambling debt or for liquor drunk in a tavern; (d) of ejectment; 1 N. B. 42 Vic. ¢. 7. Ib.c. 8. 2 N. B. 44 Vie. o. 12, 3 N. B. 48 Vie. ¢. 10. 4 N. B. 49 Vie, ¢. 9. 5 C0. 8. Man. 1880, c. 34. M. 48 Vic. c¢. 22, MANITOBA. 1083 (e) relating to validity of devises or limitations under a will or settlement; (f) for malicious prosecution, libel, slander, crim. con., seduction or breach of promise of marriage; (9) against justices of the peace or peace officers for anything done in the execution of their office. A Surrogate Court has been established for each judicial Surrogate district. The Senior County Court Judge for the district Cu. presides. The Court has jurisdiction in all matters relating to Probates of wills and letters of administration in the Province !, Court of Queen's Bench. The Court of Queen's Bench ide consists of a Chief Justice and three Puisne Judges and Bench. sits at Winnipeg? The Court as a Court of original and appellate jurisdiction possesses “all such powers and authorities as by the laws of England are incident to a Superior Court of record of civil and criminal jurisdiction in all matters civil and criminal whatsoever and shall have use enjoy and exercise all the rights incidents and privileges as fully as the same were on the 15th July 1870, possessed used exercised and enjoyed by any of Her Majesty’s Superior Courts of common law at Westminster or by the Court of Chancery at Lincoln’s Inn or by the Court of Probate or any Court in England having cognizance of property and civil rights and of crimes and offences ®” The Court has therefore both civil and criminal as well as legal and equitable jurisdiction ®, Courts of Assize for civil causes are held by one of the dssizes. judges of the Queen's Bench twice a year at Winnipeg for the Eastern Judicial District, and at Portage la Prairie for 1M. 44 Vie. c. 28, 8, 93. 2 M. 48 Vie. ¢. 15, ss. 11, 13, 2 Ib. 8. 6. 4 Ib.8. 7. 104 THE PROVINCIAL JUDICATURE. the Central Judicial District, and at Brandon for the Western Judicial District, As a Court of Appeal the Queen’s Bench hears appeals on points of law from County Courts®; appeals from the decision of an election judge on any question of law or facts®; appeals from a judge in chambers* and from the Surrogate Courts ®, Brrrisa COLUMBIA. Small Debts Court. Actions in which the sum demanded Joes not exceed $100 may be tried before a stipendiary or a police magistrate ®. County County Courts. Six County Courts have been es-Court. tablished under the 46 Vic. ¢. 5. They exercise jurisdiction in all civil causes up to $1000 and in equity up to $2500, and are invested with the powers of a Court of Probate. An appeal on points of law lies to the Supreme Court. Supreme Court. By a commission dated the 2nd Sept. 1858, Her Majesty appointed Matthew Baillie Begbie to be a judge of the Colony of British Columbia with full power to hold Courts of Judicature and to administer justice. Governor Carleton on his arrival issued a proclamation which had the force of law declaring that the Court held before Judge Begbie should be known as the Supreme Court of Civil Justice of British Columbia and ordained that the Court should be invested with “complete cognizance of all pleas whatsoever” and “with jurisdiction in all cases civil as well as criminal arising within the Colony.” Previous to this an order in Council dated the 4th April 1856. had constituted a Supreme Court for Vancouver's Supreme Court. 1 M. 48 Vic. ¢. 16. 3 Ib. c. 4, 8. 93. 5 M. 44 Vie. c. 28, gs. 128, 2 (0. 8. Man. e. 34, 5. 206. 4 Tb. ec. 31, 8. 24. 8 B. C. 49 Vie. c. 6. PRINCE EDWARD'S ISLAND. 105 Island. After the union of the Island with British Columbia the two Courts were merged in one Court called the Supreme Court of British Columbia’, such Court to possess all the powers of the two previously existing Courts. Subsequently the Legislature passed an Act ? constituting a Provincial Supreme Court under the name of the Court of Queen’s Bench to be composed of the same J udges as the Supreme Court, and to have all the powers and jurisdiction of that Court. The Supreme Court now consists of a Chief Justice and four Puisne Judges. Courts of Assize are held in different towns throughout the Province on fixed davs®. PRINCE EDWARD'S ISLAND. Civil Jurisdiction of Justices. Where a debt does not Justices. exceed $32 a debtor may be arrested and brought before a Justice of the Peace, and unless he gives security for appearing at the County Court to answer the plaintiff's suit, two Justices may try the cause, an appeal lying to the County Court*, Courts for trial of Small Debts to be held before Com- small missioners were in 1860 established throughout the province. Des Jurisdiction was conferred in matters of debt and trover for the recovery of sums not exceeding £20, except where a question of title was involved, or the action was for a gambling debt. Actions for rent were also excluded unless no distress could be found on the premises®, County Courts. The County Courts have jurisdiction, County (@) in all actions ex contractu and ex delicto where the ’ debt or damages claimed do not exceed $150: ! B. C. Ordinances, 1st March, 1869, 22nd April, 1870. 2 B. C. 45 Vic. ¢. 8. 8 B. C. 48 Vie. o. 6; 49 Vie, c. 3; 50 Vie. ¢. 8. tP.E.L 37 Vic.c. 1, 5 P. E. I 23 Vie. c. 16. 106 THE PROVINCIAL JUDICATURE. (b) in actions on bail bonds given to a sheriff in a County Court or where the penalty is recoverable before the Court of Commissioners for the recovery of small debts; (¢) in all actions for any amount recoverable under any statute before the Court of Commissioners for the recovery of small debts. The following actions are excepted, (a) of detinue, replevin or ejectment where the title to land is brought in question; (0) in which the validity of any devise, bequest or limitation is disputed ; (¢) crim. con. and seduction ; (d) for breach of promise of marriage ; (e) against executors or administrators ; (f) against Justices of the Peace for anything done in the execution of their office; (9) upon judgments in the Supreme Court’. An appeal is allowed to the Supreme Court *. Marine - A Marine Court of Enquiry established by the 27 Vie. Gourt-¢. 23 has jurisdiction in collisions, casualties resulting in loss of life and charges of misconduct against masters of vessels. Surrogate Surrogate Courts. Jurisdiction in matters relating to Court. wills belongs to the Surrogate Courts. id Insolvents’ Courts were established by 81 Vie. c. 15. Divorce Court of Divorce. In 1835 the Lieutenant-Governor and Court: Council were authorized to hear and determine all matters relating to divorce, and power was given to the Lieutenant-Governor to appoint the Chief Justice to preside in his stead & Supreme Court. Supreme Court. The Supreme Court was established by (Governor Patterson under the powers conferred by his Comi P, E. 1 41 Vie. c. 12, 88. 16—17. 2 Ib. 8. 93. 3 P. HE. I 86 Vie. ¢. 21. 1 PE. I 5 Wil 4, ¢. 10. NORTH-WEST TERRITORIES. 107 mission’, As a Court of Common Law it is composed of a Chief Justice and two Puisne Justices, who exercise a jurisdiction similar to that enjoyed by the old Courts of Queen's Bench and Common Pleas. Jurisdiction in Equity belongs to the Master of the Rolls* and to the Vice-Chancellor®, who act also as Puisne Judges on the Common law side of the Supreme Court. An appeal in Equity lies to the Chief Justice, the Master of the Rolls and the Vice-Chancellor®. Except when sitting in the Court of Appeal the Chief Justice has no equity jurisdiction. The Master of the Rolls as such has similar powers to those formerly enjoyed by the Master of the Rolls in England ®, and the Vice-Chancellor as such has co-ordinate jurisdiction ®, The Chief Justice, the Master of the Rolls and the Vice-Chancellor act as a Court of Appeal in Chancery’, and all right of appeal to the Lieutenant-Governor as Chancellor has been taken away® NorTH-WEST TERRITORIES. The Supreme Court consists of five Puisne Judges, each Supreme of whom is required to reside at such place in the territories Court: as the Governor in Council directs. A judge usually exercises jurisdiction within the district in which he resides, and is invested with all the powers of the Court other than those usually exercised by a Court sitting in banc. The Court possesses the same powers as the Court of Jurisdic Queen’s Bench of Manitoba, and has all the powers vested tion. in the Stipendiary Magistrates on the 2nd June 1886. 1 Bee ante, p. 32. 3P.E.L 32 Vic. c. 4. 5 P. EB. L 11 Vic. ¢. 6. 7 Ib. P. E. 1. 46 Vic. c. 6. 9 R. 8. C.c. 50, ss, 41-45. 108 THE PROVINCIAL JUDICATURE. Every Judge is authorized to hold a Court at such times and places as he thinks proper and to decide any claim or dispute in a summary manner, except in actions of debt or contract where the claim exceeds $1000, and in actions of tort where the amount claimed exceeds $500, in which cases either party may demand a jury Courts OF CRIMINAL JURISDICTION. Justices, Sessions. By section 91 of the British North America Act 1867, the Criminal law including Criminal procedure was placed within the legislative jurisdiction of the Dominion whilst the Constitution of Courts of Criminal jurisdiction was handed over to the province. A uniform code of Criminal law and procedure has been for some years in force in the Dominion, Justices of the Peace. Justices of the Peace and Stipendiary magistrates have by various statutes jurisdiction bo try in a summary manner minor offences. They are also authorized to try summarily certain indictable offences such as larceny, embezzlement, obtaining money under false pretences, aggravated assaults, assaults on children or magistrates, using premises for betting, provided the accused consent to be so tried. Persons under 16 years of age charged with larceny may be tried before one stipendiary magistrate or two justices’. An appeal from any conviction of justices lies in Ontario to the Sessions, in Quebec to the Queen’s Bench, in Prince Edward's Island and North-West Territories to the Supreme Court, and in the other provinces to the County Court? General or Quarter Sessions, Recorder's Court. These courts sit at least four times a year and have as a rule power I R. 8. C. c. 50, s. 88. 2 Ib. ce. 174, 176. 3 Ib. ec. 178, 5. 76. COURTS OF CRIMINAL JURISDICTION. 109 to try all indictable offences except treason, felony punishable with death, libel, and fraudulent acts of agents, bankers, factors, trustees, directors, keepers of warehouses or partners’ County Courts. In some provinces such as Manitoba, County Nova Scotia and New Brunswick, the County Court exercises Courts a criminal jurisdiction, as appeals from decisions of Justices are in these provinces taken to the County Court. Courts of Oyer and Terminer. Courts of Oyer and Goole of Terminer and general gaol delivery are held periodically in Tominer. the different provinces. Such Courts have general jurisdiction in treason, felonies, and other indictable offences’ The Supreme Court of each province has on its Common Provincial law side jurisdiction in all indictable offences. Sana Court for consideration of Crown Cases reserved. Any Court for question of law arising on a trial where a person is convicted he ad on indictment of any treason, felony or misdemeanour may be reserved reserved by the Judge for the consideration of this Court’. The Court for the consideration of Crown cases reserved SQ in Ontario, any division of the High Court of the province; in Quebec, the Court of Queen’s Bench on its appeal side; in Nova Scotia, New Brunswick, British Columbia, and Prince Edward’s Island, the Supreme Court of the province ; in Manitoba, the Court of Queen’s Bench of the province; in the North-West Territories, the Supreme Court of the Territories®. 1R. 8.0. c 174, 58. 4, 6. 8 Th. c. 174, 8. 259. 2 Ib. ec. 174, 8.3 4 1b, c. 174, 8. 2. CHAPTER XL THE DOMINION PARLIAMENT. (. Parties to Legislation. THE legislative power of the Dominion is generally represented as being vested in (1) the Parliament of Canada, consisting of two Houses, viz. a Senate and a House of Commons, and (2) the Governor-General. Inasmuch, however, as the Crown may veto any Canadian Act, it is more correct to say that the Legislature of the Dominion consists of (1) the Crown, (2) the Governor-General and (3) the Parliament of Canada’ Reserving for later consideration the relations of the Crown and the Governor-General to legislation, an account will now be given of certain matters relating to Parliament generally and then the constitution and functions of each House will be considered in detail. 9 How summoned. Though the British North America Act, 1867, makes provision for the appointment of senators, the election of members of the House of Commons, and the meeting of Parliament once a year, it is silent as to the manner in which Parliament is summoned, except in so far as it provides by section 38 that the Governor-General may summon the 1 B. N. A. Act, ss. 17, 55, 57. THE DOMINION PARLIAMENT. 111 House of Commons in the Queen's name under the great seal. By the Letters Patent’ constituting the office of Governor-General the Crown authorizes and empowers the Governor-General to exercise all powers belonging to the Crown in respect of the summoning, proroguing or dissolving of the Canadian Parliament. The Governor-General has therefore full legal power to exercise the prerogative rights of summoning or dissolving Parliament. In exercising these powers he follows closely the practice adopted by the Crown in England. The Dominion like the English Parliament is summoned Summons. for the despatch of business by proclamation issued by and with the advice of the Ministry. Various months have been selected for the time of meeting but it is now understood that Parliament will be summoned as early in the year as possible. The form of proclamation is as follows. Lansdowne, Form of proclama tion. CANADA. VicToR1A by the Grace of God of the United Kingdom of Great Britain and Ireland QUEEN Defender of the Faith &e., &e. To our beloved and faithful the Senators of the Dominion of Canada and the Members elected to serve in the House of Commons of our said Dominion and to each and every of you: —GREETING:— A PROCLAMATION. Whereas the meeting of our Parliament of Canada stands Prorogued to the 17th day of the month of December next, Nevertheless, for certain causes and considerations, We have thought fit further to prorogue the same to Thursday the 1 See Appendix, [12 THE DOMINION PARLIAMENT. seventeenth day of the month of January next, so that neither you nor any of you on the said seventeenth day of December next at Our city of Ottowa to appear are to be held or constrained : for we do will that you and each of you, be as to Us, in this matter, entirely exonerated ; commanding and by the tenour of these presents, enjoining you and each of you and all others in this behalf interested that on Thursday, the seventeenth day of the month of January next at Our city of Ottawa aforesaid, personally be and appear for the despatch of business to treat, do, act, and conclude upon those things which in our said Parliament of Canada by the Common Council of our said Dominion, may by the favour of God be maintained. In testimony whereof We have caused these our Letters to be made Patent and the Great Seal of Canada to be hereunto affixed. Witness &c. 3. The opening of Parliament. Proceedings in the Bago of When a new House of Commons is elected, the members assemble in their Chamber on the morning of the day mentioned in the proclamation and at an hour fixed by the clerk, for the purpose of taking the oath and signing the roll. The Clerk of the Crown in Chancery attends at the table and delivers to the clerk of the House a roll containing the names of duly elected members. The oath of allegiance in the form set out in the British North America Act 1867, ——— do swear that I will be faithful and bear true allegiance to her Majesty Queen Victoria; is administered by one of the clerks or the Sergeant-atarms authorized for that purpose by the Governor-General. Hlectionof By the British North America Act 1867, section 44, the Speaker. House of Commons on its first assembling after a general I B. N. A. Act, 1867, 5. 128. OPENING OF PARLIAMENT. 113 election is to “proceed with all practicable speed to elect one of its members to be Speaker.” The House might evidently under this provision at once elect its Speaker, and such election would be complete without any confirmation by the Governor-General. The customary method of proceeding to the election is Roegioisf peaker. as follows: — Shortly before the hour fixed for the opening of Parliament, the members re-assemble. On the Usher of the Black Rod presenting himself at the door, which he strikes three times with his rod, he is admitted. Advancing up the floor of the House he makes three obeisances and says in French and in English— “Gentlemen [or Mr Speaker in subsequent sessions], his Excellency the Governor-General desires the immediate attendance of this honourable House in the Senate chamber.” The Usher then retires and the members proceed to the Senate chamber in order to hear the message relating to the election of Speaker. The Speaker of the Senate thereupon addresses the members as follows : “His Excellency the Governor-General does not see fit to declare the causes of his summoning the present Parliament of the Dominion of Canada until a Speaker of the House of Commons shall have been chosen according to law, but to-morrow, at the hour of — his Excellency will declare the causes of his calling this Parliament.” The Commons then return to their chamber. The clerk Presides and the election of Speaker is proceeded with, any Question relating thereto being put to the House by the clerk. The member duly elected is conducted to the Chair by his proposer and seconder, where he returns his thanks to the House for the honour conferred on him. The mace is 114 THE DOMINION PARLIAMENT. then placed on the table and the House adjourns to the following day. Upon its re-assembling the Usher of the Black Rod again desires its attendance in the Senate chamber. The Speaker-elect then informs the Governor-General of his election and claims for the House “all their undoubted rights and privileges.” The Speaker of the Senate on behalf of his Excellency replies that “he fully confides in the duty and attachment of the House of Commons to Her Majesty's person and government and upon all occasions will recognize and allow their constitutional privileges.” Approval In the English House of Commons the choice of a Speaker Yn, is “confirmed and approved” by the Crown. This course was followed in some of the Legislatures of the old provinces; but when in 1827 Lord Dalhousie, then Governor-General, refused to approve the election of Mr Papineau as Speaker of the Legislative Assembly of Lower Canada, the Assembly passed a resolution declaring the action of the Governor-General to be unconstitutional, as the Act constituting the Legislature did not require the choice of Speaker to be approved by the Governor-General. The form of approval remained in force in Upper and Lower Canada until the anion of the two provinces in 1841, but the Act of Union is silent on the point. After the delivery of the usual speech by the Governor-General the members return to their own House, the Speaker after taking the chair informs the House that the usual privileges had been granted to the House by the Governor-General. The reports of Judges and returns of the Clerk of the Crown in Chancery respecting elections are then presented, and in accordance with the custom prevailing in the English House of Commons a bill is read a first time pro forma, in order to assert the right of the House to deal with any business it may think right to discuss before proceeding to the consideration of the matters contained in the speech. THE GOVERNOR'S SPEECH. 115 The Speaker then reports to the House that his Excel- i lency the Governor-General has that day made a speech t0 Speech. both Houses of Parliament of which he has obtained a copy. The speech is entered on the journals as read, and a member of the Government then moves that the speech be taken into consideration on a future day. When this is agreed to, formal resolutions are passed appointing standing committees, and the librarian’s report and other papers are presented. In England the Queen’s Speech is invariably taken into consideration on the same day on which it is delivered; but in Canada, though the custom is to debate the Speech on the following day, yet when important matters are likely to come up for debate its consideration may be postponed for a time. An instance of this occurred in 1873, when the House thought it advisable to consider at once matters relative to the Canadian Pacific Railway®. A resolution for an address in reply to the Speech is moved and seconded. Each paragraph of the resolution is Put as a separate resolution, and a general debate may take Place on such paragraph and amendments may be moved. When the resolution has been agreed to, it is referred pro forma to a Committee to prepare and report the draft of an address. The Chairman of this Committee reports the address, which is read a second time and usually agreed to without any discussion. The address is then ordered to be engrossed and presented to the Governor-General by such members of the House as are Privy Councillors. On the opening of a New Parliament the Senators meet Proesed In their chamber, and the Speaker informs the House when Senate, the Governor-General will proceed to open the session. If & new Speaker has been appointed by the Governor-General® the Clerk of the House, as soon as the Senate has met, reads the Commission making the appointment, and the Speaker-elect is conducted to the Chair by two prominent 1 Can. Com. J., 1873, Oct. sess. p- 119. 2B. N. A A, 1867, s. 34. 8-—2 116 THE DOMINION PARLIAMENT. Senators. The mace is placed on the table and prayers are read. New members present their certificates of appointment and take the oath of allegiance’. The House then adjourns until the hour when the Governor-General is to be present. At the appointed time the Governor-General takes his seat and the Speaker directs the Usher of the Black Rod to summon the Commons. The Commons attend with their Speaker and the Governor-General reads the Speech. COBRA After the Commons have returned to their chamber and Speech. the Governor-General has retired, a bill is introduced pro forma® and the Speaker reports the speech, which is then usually ordered to be taken into account on the following lay. All the members present are then appointed a committee to consider the orders and customs of the House and privileges of Parliament. To this committee is referred every matter affecting the privileges of the House or of its members. The procedure followed on the consideration of the address was up to 1870 similar to that adopted in the Commons, but in that year the custom of moving the address directly without any previous resolution was introduced and has since been followed. The address being agreed to is ordered to be presented by those Senators who are Privy Councillors. 4. QUORUM. By Sections 35 and 48 of the British North America Act, 1867, it is provided that at least 15 Senators and 50 Members of the House of Commons, including the Speaker, are necessary to constitute a meeting of the Senate and of the House of Commons respectively. In the Senate if, 30 minutes after the Speaker takes the chair, there is not a quorum, he adjourns the House until the 1 3. N. A. A. 1867, s. 128. PRIVILEGES. 117 next day. In the House of Commons the Speaker may, if the necessary number of members be not present, adjourn the House as soon as he takes the chair, and is bound to do so if his attention is called to the fact that there is no quorum present and such proves to be the case after counting the House. A count out is very rare in the Canadian House of Commons? 5. PRIVILEGES. By the British North America Act, s. 18, power was Power to given to the Parliament of Canada to define the privileges, Be es immunities and powers to be enjoyed by the Senate and House of Commons, but a proviso was added, that the same should never exceed those “at the passing of this Act” enjoyed by the English House of Commons. As it was doubtful whether the words “this Act” applied to the British North America Act, 1867, or to any Dominion Act passed to define the privileges of the Houses of Parliament, it was enacted by the Imperial Act, 38 and 39 Vic. c. 88, that the privileges to be enjoyed should not exceed those enjoyed by the English House of Commons at the time of the passing of the Dominion Act. By c. 11 of the Revised Statutes of Canada the Senate Privileges and the House of Commons respectively and the members Sold, thereof are to hold and enjoy “the like privileges, immunities and powers as at the time of the passing of the British North America Act, 1867, were held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom and by the members thereof so far as the same are consistent with, and not repugnant to, the said Act.” Such privileges are to be noticed judicially in all courts in Canada. The Canadian Act does not attempt to enumerate the ! Senate S. 0.,5, 6. Com. 8. 0, 1, 4. 2 Burinot, p. 248. 118 THE DOMINION PARLIAMENT. Publications by order of House. Publication of Copies. privileges specifically, nor is this necessary’, but express provision is made for the stay of proceedings, civil or criminal, for publishing any report, paper, vote or proceeding under the authority of the Senate or House of Commons on production of a certificate of the Speaker or Clerk of the Senate or House of Commons stating that the report, paper, vote, or proceeding was published under the authority of the Senate or House of Commons, together with an affidavit rerifying such certificate * Civil or criminal proceedings for publishing a copy of any report, paper, vote, or proceeding are also to be stayed on the production of the report, paper, vote or proceeding and an affidavit as to correctness. In any proceedings for printing an extract from, or abstract of, any such report, paper, vote or proceeding, such report, paper, vote or proceeding may be given in evidence, and if shewn to the jury that the extract or abstract was published without malice, a verdict of not guilty is to be entered. 6. PAYMENT OF MEMBERS. Payment Members of the Senate and House of Commons are paid of Memn- for their attendance and receive an allowance for travelling expenses®. The sum allowed is 10 dollars a day if the session does not exceed 30 days, but if the session is longer a member receives a sessional allowance of 1000 dollars. From this allowance a deduction of 8 dollars a day is made for every day on which the member does not attend a sitting of the House or of some Committee, provided the House sits on such day. Days on which the House does not git. or on which the member is prevented attending by 1 Dell v. Murphy, 1 Moore’s P. C. N. 8. 487. 2 R. S.C c 11. 8. 6. 3 BR. S. C. c. 11, ss. 25—38. PAYMENT OF MEMBERS. 119 illness, provided he be within 10 miles of the place of meeting, are reckoned days of attendance. In some very exceptional cases the House has resolved that an absent member should receive the sum he would have been entitled to had he not been so absent. The legality of such a proceeding is very doubtful’. When a person is member for at least 30 days of a ig session, 8 dollars a day is deducted from the sessional allow- ni, ance for each day before he was elected or after he ceased to be a member. An allowance of 10 cents per mile is given for travelling Travelling expenses, both on going and on returning, between the place Rpm of residence of the member and the place where the session is held, according to the nearest mail route, the distance being determined and certified by the Speaker of the Senate or of the House of Commons as the case may be. A member may draw his sessional allowance from time to How paid. time to the extent of 7 dollars a day, the balance being payable at the end of the session on the member making a declaration as to the number of days he has attended and the number of miles travelled. The Speakers of the Senate and of the House of Commons Salary of receive each a salary of 4000 dollars per annum 2 pensar 7. ADJOURNMENT. A motion to adjourn is always in order and always takes precedence of the question before the House. In the Commons no amendment can be moved to such motion, and if the motion be lost no second motion to the same effect can be made until after some intermediate proceeding shall have been had® A wide latitude of debate is allowed on a motion for 1 See Burinot, p. 148. 2 R. C. 8.c. 11, 8. 24, 3 Com, S. 0. 30. 120 THE DOMINION PARLIAMENT. adjournment, as the Canadian Parliament has not adopted the rule that the speeches should be relevant to the question of adjournment. Proroga-Hon. [ts effect. 8. PROROGATION. In Canada Parliament is usually prorogued by the Governor-General in person. As soon as the business of the two Houses is completed, the Governor-General, through his secretary, and with the advice of his ministers, informs the Speaker of each House that at a certain hour on a given day he will prorogue Parliament. The Commons are summoned in the usual manner to attend in the Senate chamber, and after assent is given to bills that have been passed, the Governor-General delivers the customary speech in English and French. At the conclusion of the speech the Speaker declares that :— «Tt is his Excellency the Governor-General’s will and pleasure that this Parliament be prorogued until —— and to be then here holden; and this Parliament is accordingly prorogued until —— ” The fact of the prorogation is also notified in the “Canada Gazette.” The effect of the prorogation is to put an end to the session. Proceedings on all bills pending in either House cease to have any effect, and such bills will require to be introduced again and go through all the necessary stages in the following session. Where a session ends unexpectedly it is customary as in England to protect parties promoting private bills, and by a series of resolutions to permit such bills to be advanced in the following session by unopposed motions to the stages at which they stood when the prorogation took place” All committees, standing or select. are dissolved by the prorogation. 1 Burinot, p. 236. DISSOLUTION. 21 9. DISSOLUTION. The Parliament may be dissolved by the Governor-General gs at any time’, and though the Governor-General is expected to rogative pay the greatest attention to the advice of his ministers, yet Fs. he is not bound to grant a dissolution whenever and as often as they demand it. The dissolution of Parliament is a prerogative right and the Governor-General, as representing the Crown, is required to act on his own responsibility * The following examples illustrate the above principle. Sir Edmund Stead, Governor-General of Canada, refused to dissolve Parliament in 1858, on the grounds that a general election had been held the previous winter, that important business remained to be finished, and that there was no reasonable probability that the verdict of the previous election would be reversed®. Lord Mulgrave, Governor of Nova Scotia, refused a dissolution in 1860, on the ground that it was neither expedient, nor for the public interest, that a dissolution should take place a short time after a general election *. When in May, 1872, the Legislative Assembly of Victoria passed a vote of want of confidence in the administration, the ministry informed the Governor that they were bound either to resign or to recommend a dissolution, and they accordingly advised a dissolution. The Governor declined to dissolve, as he believed a ministry could be formed without having recourse to a dissolution ®. In the last-mentioned case the ministers maintained that Position of the alternative of resignation or dissolution is left absolutely Ministers to their discretion and responsibility. The Governor dissented from this proposition, maintaining that as a colunial Governor, it was his duty to exercise a due discretion. Lord Mulgrave in explaining his conduct in the case referred to 1 B. N. A. Act, s. 50. 2 See post, chap. xv. } See Todd, p. 529. 4 Ib. p. 537. 5 Ib. p. 539. 122 THE DOMINION PARLIAMENT. above summed up the position as follows: —“I quite admit that when a Council is backed by a majority of the House a Governor is bound in ordinary cases to follow their advice and that it is chiefly by his influence and persuasion that he must endeavour to direct their conduct, but the premier would place a Governor in the same position as the Queen, and the Council in the position of the Cabinet at home, forgetting entirely that the Governor is himself responsible to the home government and that it is no excuse for him to say in answer to any charge against his administration of affairs, I did so by the advice of my Council.” The Parliament is also dissolved by lapse of time, as the British North America Act, s. 50, provides that, subject to the above-mentioned power of dissolution by the Governor-General, every House of Commons shall continue for five years from the day of the return of the writs for choosing the House. Demise of ~~ The Canadian Parliament is not affected by the demise hoOrown: of the Crown, an Act to that effect® having been passed in the first session of the Parliament of the Dominion. Lapse of bime. « Todd, p. 537. 2 R.8.C.e. 11,8. 1, CHAPTER XII. Tur House oF COMMONS. 1. NUMBER. Tae House of Commons now consists of 215 members, Number. distributed as follows: Ontario 92 Quebec 65 Nova Scotia 21 New Brunswick 16 Manitoba 5 British Columbia 6 Prince Edward's Island 6 North-West Territories 4 215 Originally the House consisted of 182 members, but provision was made by the British North America Act, s. 57, for a decennial adjustment of representation. To Quebec was assigned a fixed number, viz. 65 members: to the other provinces was assigned such a number of members as would bear the same proportion to the number of its population (ascertained every ten years) as the number 65 would bear to the number of the population of Quebec 1 50 and 51 Vie. ¢. 4. 124 THE HOUSE OF COMMONS. Electoral Dictricts. so ascertained. Any adjustment only comes into effect on the termination of the then existing Parliament. After the census of 1871 the number of members was increased to 200, and in 1881 eleven additional members were added. Representation was conceded to the North-West Territories in 1886. After the then next general election four electoral districts in these Territories were to return one member sach'. The first members for these Territories were elected in 1886 ° In Ontario, Quebec and Manitoba and the North-West Territories one member is returned by each electoral district: in Nova Scotia, three electoral districts, in New Brunswick and British Columbia one electoral district, return two members cach, otherwise in these three provinces the rule of single member constituencies is followed. In Prince Edwards Island each district returns two members? 2. QUALIFICATIONS OF ELECTORS. By the British North America Act, 1867, it was provided, Ts. 41] that until the Parliament of Canada should otherwise provide the voters in each province for members of the Dominion House of Commons should be the voters qualified to vote for members of the provincial Assembly. For several years no attempt was made to introduce a uniform franchise, but with the increased development of the provinces it began to be seen that so long as the Provincial Parliaments retained power to alter the franchise, the Federal Parliament was exposed to serious disturbance. Bills providing for a aniform franchise were brought before the Canadian Parliament in 1883 and 1884, but were strongly opposed by the advocates of provincial rights®, and it was not until 1885 1 R.S.C.c. 7. 2 Ib. c. 6. } Dominion Annual Register 1885, pn. 54. QUALIFICATIONS OF ELECTORS. 125 that a general law was passed. This Act was subsequently amended, and the franchise is now governed by c. 5 of the Revised Statutes of Canada, 1886. In both cities and towns a voter must be registered as such, and (1) be a British subject by birth or naturalization ; (2) be 21 years of age; (3) fall within one of the following classes :— (a) Owners of real property of the actual value of Owner: (1) $300 in a city, or (2) $200 in a town, or (3) $150 in “2 any place not in a city or town. (b) Tenants holding under a lease at a rent of $2 Tenancy. monthly, or $6 quarterly, or $12 half-yearly, or $20 yearly who (1) have been in possession for one year, and (2) have bona fide paid one year’s rent or $20 of such rent if the rent be over $20 and payable yearly. (¢) Occupants occupying real property of a value Occuof $300 in a city, or $200 in a town, or $150 elsewhere, poner: who have been in occupation for one year. (d) Persons residing within the electoral district Income. who have been residents in Canada for one year and who enjoy an income of $300 annually. (¢) Persons residing for one year in the electoral Annuity. district who are in receipt of a life annuity secured on real estate in Canada of at least $100. (f) Son of the owner or the occupant under a lease Farmer's for 5 years of a farm of not less than 20 acres where (1) the sons. value of the farm or real property is sufficient to qualify both, and (2) the son has resided with father for 12 months. All sons may qualify, but if the value of the farm or real property will not qualify all, preference is given to the elder sons. (9) Son of an owner of real property where similar conditions are fulfilled. 126 THE HOUSE OF COMMONS. Fighermen. [ndians. In the two last-mentioned cases ‘son’ includes grandson, step-son and son-in-law. Occasional absences not exceeding six months in the year will not disqualify, and the time spent at an institution of learning or as a mariner or a fisherman is considered to be spent at home. (h) Fishermen, if resident and owning real or personal property of the value of $150. (?) Indians on a reserve not in Manitoba, British Columbia, Keewatin or the North-West Territories, and in occupation of a plot of land on such reserve, and whose ‘mprovements are of the value of $150, and who are otherwise qualified’. The Act contains some special provisions relating to the North-West Territories and to Prince Edward's Island and British Columbia. North- In those districts in the North-West Territories that are West Ter- . : ritories. entitled to send representatives to the House of Commons, an elector is described as: — “A bona fide male resident and householder of adult age who is not an alien or an Indian within the electoral district, and who has resided in such district for at least 12 months immediately preceding the issue of the writ of slection ®” In the provinces of Prince Edward’s Island and of British Columbia all voters who were qualified by the laws of these two provinces to vote at the passing of the Electoral Franchise Act, 1885, are to have a right to be registered as voters and to vote so long as they shall continue to be qualified to vote under such laws? Persons Persons disqualified from voting. The following persons disquali- ’ . 4 fied, are disqualified from voting *: 1. Judges. 1. Judges of every Court whose appointments rest 1 See 8, 11 of 48 and 49 Vie. c. 40. 2R.8.C. ec. 17,s8 4. 3 R.S8.C.e 5, 8 10. 4 R. 8. C. c. 8, 8.42, 49 and 50 Vie. c. 6. QUALIFICATIONS OF ELECTORS. 127 with the Governor-General. The Judges therefore of the Supreme Court of Canada, of the Superior, District and County Courts of the provinces cannot vote. 2. Revising officers, returning officers and election 2. Election clerks for the electoral district for which they hold their Slory, office, but deputy returning officers, poll clerks and constables may vote’, 3. Any person employed for money at time of election 3. Paid , . . election except the returning officer in case of an equality of votes, gents. when he may give a casting vote. 4. Indians (a) in Manitoba, British Columbia, 4. Indians. Keewatin and North-West Territories, (b) in the other provinces who do not fulfil the conditions above referred to. 5. Persons of Mongolian or Chinese race > 5. Chinese. 6. Persons found guilty of corrupt practices at elections. 6. Persons Their disqualification lasts for eight years® gay 2 practices. The Governor-General appoints revising officers to revise Revision the list of voters every year. A preliminary revision is held 3 Yar in June, and the corrected lists are required to be printed and published before the 1st September. Within five weeks the final revision takes place, when objections are heard and examined, and the list as finally revised is certified and a duplicate sent to the Clerk of the Crown in Chancery at Ottawa before the 1st of November *, If the revising officer be not a Judge an appeal lies from his decision. In Quebec the appeal is to the Judge of the Superior Court resident in or having charge of the judicial district in which the polling district in respect of which the appeal arises is situate. 1 49 and 50 Vie, ¢. 6, 8. 1. 2 Ih. ¢. 5, 8. 2. 4 R, 8, C. ec. 5, ss. 11—32, 3 Ib. ec. 8, 8. 98, 28 THE HOUSE OF COMMONS. In the other provinces the appeal is to the Judge of the County Court, but in British Columbia, if the electoral district is not within the jurisdiction of a County Court, the appeal is to a Judge of the Superior Court’. Voters qualified to vote in respect of income can only be registered and vote in the polling district in which they reside: other voters are registered and vote where their real property is situated, but if the property is partly in one polling district and partly in another, they may be reoistered and may vote in either district” 3. QUALIFICATIONS OF ELECTED. No property qualification is required of any member of the House of Commons. He must be a subject of the Crown by birth or naturalization’, and must not be disqualified by law from sitting. The following persons are so disqualified : Members 1. Members of any provincial Legislative Council or oki rovin- Tegislative Assembly® This disqualification is not found liaments. ip the British North America Act, 1867, but has been adopted not only by the Dominion Parliament but by the Provincial Assemblies. A member of the House on being appointed a member of a Provincial Assembly or elected to a Provincial Assembly vacates his seat in the House, unless the appointment or election was without his consent, and provided (1) he does not take his seat in the Provincial Council or Assembly, and (2) he resigns such seat within ten days after being notified of his election, or if not within the province, then within ten days after his arrival there, and (8) gives notice to the Speaker of the House of Commons that he has so resigned ®. 1 R, 8. C. ec. 5, ss. 33, 34, 2 48 and 49 Vie. c. 40, s. T. 3 R 9 (Cc. 8.8. 20. 4 Ib. c. 13,8. 1. 51b. 8. 8. DISQUALIFICATIONS. 129 A member of a Provincial Council or Assembly who sits in the House of Commons incurs a penalty of $2000 for every day he sits or votes, which penalty may be recovered by any person who sues for the same’. 2. Persons holding any office of emolument under the Doin government of Canada on the nomination of the Crown to Offions which any salary is attached ?, except Emon (a) a Minister of the Crown, provided he has been elected while holding office ; (b) a Minister of the Crown resigning one office and accepting another within one month, unless a new administration be formed; (c) officers of militia, or militia men receiving only their daily pay when called out? or pay for care of arms or for giving drill instruction *; (d) a person holding any office, commission or employment, if by his commission or instrument of appointment it is declared that he shall hold such office without any salary’, 8. (Contractors. Con-(1) Persons undertaking any contract for which money tractors. is to be paid by the government of Canada ®. (2) Shareholders in companies undertaking contracts for building public works”. The Act excepts (az) persons on whom a contract devolves by descent, limitation or agreement until 12 months has elapsed®; (6) lenders of money to the government ® It is also provided that government contracts shall contain a clause that no member shall become interested in them 1 R.8.C.c. 18,8. 4. 5 Ib. 8. 17. 5 Ib, 8. 9. 7 Ib. 8. 15. 8 Tb. s. 17. M 2 Ib.ec 11,8. 9. 4 Ib. 8 Ih, 8. 10. 9 Ih. 10 Th, s. 18. n Ch) THE HOUSE OF COMMONS. A person disqualified, if a member, vacates his seat and incurs a penalty of $200 a day’. Corrupt. 4. Persons guilty of corrupt practices at elections. Practices. . . . or (ae) If it be proved on the trial of an election petition that any corrupt practice has been committed by any candidate, or with his actual knowledge, or if any candidate be convicted of bribery or undue influence, the election is void, and such candidate is to be incapable of being elected so the House for seven years”. (b) Persons other than candidates found guilty of corrupt practices are to be incapable of being elected to the House for a period of eight years®. 5. A revising officer cannot be a candidate for the slectoral district for which he is revising officer, nor for two years after he resigns his office ®. Other 6. Sheriffs, Registrars of Deeds, Clerks of the Peace Moers. ond County Crown Attornies are also disqualified ®. 4, MgrHOD OF ELECTION. Every writ for the election of a member is dated and is returnable at such time as the Governor-General determines. The day on which the nomination of candidates is to take place is mentioned in the writ, and such day must, in the case of a General Election, be the same for the whole Dominion, oxcept in the electoral districts in British Columbia and she districts of Algoma in Ontario, and of Gaspé, Chicoutimi and Saguenay in Quebec, where the day is fixed by the returning officer °. Form of The usual form of writ is as follows: — wt Victoria, by the grace of God of the United Kingdom of Great Britain and Ireland, Queen, Defender of the faith. To the [Returning Officer] LR, 8. C.c. 8, 8.13. 8 Ib. 8. 98. 5 Th. o. 11. 8. 9. WRIT OF ELECTION. 131 GREETING. Whereas by the advice of our Privy Council for Canada We have ordered a Parliament to be holden at Ottawa on the day of [Omit this preamble except in case of a General Election], We command you that notice of the time and place of election being duly given You do cause Election to be made according to law of a Member to serve in the House of Commons of Canada for the Electoral District of [Except in the case of a General Election insert here in the place of deceased or otherwise stating the cause of vacancy] and [except in the Electoral Districts mentioned in s. 2 of 37 Vic. ¢. 9] that you do cause the nomination of Candidates at such Election to be held on the day of next and that you do cause the name [or names] of such member for members] when so elected whether he [or they] be present or absent to be certified to our Clerk of the Crown in Chancery on or before the day of next. WirNEss Our Right Trustv and Well-beloved &ec., Governor-General of our Dominion of Canada at our City of Ottawa, the day of in the year of Our Reign and in the year of Our Lord 18 . Where a vacancy occurs in any Electoral District owing Vacancies to death, resignation or other cause, the fact of the vacancy is brought to the Speaker's notice in either of two ways, (1) by a member giving notice from his place, or (2) by a notice in writing under the hands and seals of any two members, The usual form of notice is as follows: Dominion of Canada) House of Commons, To wit To the Hon. the Speaker of the House of Commons. We the undersigned hereby give notice that a vacancy hath occurred in the representation in the House of Commons 9-9 132 THE HOUSE OF COMMONS, for the Electoral District of [here state Electoral District, cause of vacancy and name of Member vacating seat]. Given under our Hands and Seals at this day of 18 Member for the Electoral District of » of Pops The Speaker then issues his warrant to the Clerk of Sion. the Crown in Chancery for the issue of a new writ for the election of a Member to fill the vacancy’. The warrant is as follows: Dominion of Canada) House of CEEInIts To wit To the Clerk of the Crown in Chancery. These are to require you to make out a new wrib for the election of a Member to serve in this present Parliament for the Electoral District of in the room of who since his election for the said Electoral District hath [here state reason for issue of warrant] Given under my hand and seal this day of in the year of Our Lord Speaker. If there be no Speaker, or if the Speaker be absent from Canada, then any two members can issue-such warrant 2 If a vacancy occur after a General Election, but before she meeting of Parliament, a new writ is to issue, but this is not to affect the rights of any person entitled to contest the previous election. Process Within a certain time, varying in the Provinces from 8 to 20 davs after the receipt of the writ, the returning officer -R.8.C.c. 18,8. 9. 2 Tb. s. 13. DUTIES OF RETURNING OFFICER. 133 issues a Proclamation stating the place and time for the nomination of candidates, the day on which a poll will be taken if necessary, the polling stations fixed by him and the place and time where he will count the votes. Before issuing the proclamation it is the duty of the Duties of Returning Officer, after ascertaining the number of persons oy tng qualified to vote, to see that there are a sufficient number of polling districts, and power is given him to subdivide the districts appointed by the Legislature or by the local authorities so that there may be one polling district for every 200 voters. Proclamation. Electoral District of to wit. Form of Proclamation. Public notice is hereby given to the Electors of the Electoral District aforesaid, that, in obedience to Her Majesty's writ to me directed and bearing date the day of , I require the presence of the said Electors at in the County [or City or Town] of on the day of month of from noon until two of the clock in the afternoon, for the purpose of nominating a person [or persons] to represent them in the House of Commons of Canada: and that in case a Poll be demanded and allowed in the manner by law prescribed, such Poll will be opened on the day of the month of in the year from the hour of 9 in the morning till 5 of the clock in the afternoon, in each of the Polling Districts, that is to say: For the Polling District No. 1, consisting of at And further that on the day of I shall open the ballot boxes, sum up the votes given for the several candidates and return as elected the one having the majority of votes. at 134 THE HOUSE OF COMMONS, Of which all persons are hereby requested to take notice and govern themselves accordingly. Given under my hand at this day of in the year A B Returning Officer. Nomination of Candidates. Deposit. Poll. Candidates are nominated in writing signed by 25 electors. The nomination paper is not valid unless accompanied by the written consent of the candidate, except when he is absent from the Province, in which case such absence is to be stated in the nomination paper. One of the persons filing the nomination is required to make oath before the Returning Officer that he knows the several persons who have signed the nomination paper to be electors duly qualified to vote; that they signed the paper in his presence; and that the consent of the candidate was signed in his presence, or that the candidate was absent from the Province. A sum of 200 dollars also has to be deposited with the Returning Officer. This sum is returned to the candidate if he is elected, or if he polls half as many votes as those given the successful candidate : otherwise the sum is to belong to the Dominion and to be applied by the Returning Officer in defraying the expenses of the election” If a poll is necessary, it takes place on the day fixed. The voting takes place by ballot, and the poll remains open from nine in the morning till five in the afternoon. On the close of the poll the Returning Officer counts the votes and declares that candidate who is found to have a majority of votes elected. If an equality of votes exists between two or more candidates, the Returning Officer may give a casting vote. R. S.C. c. 18, 8. 8, ss. 19-23, RECOUNT. 135 Within four days after the declaration of the poll any Recount. “credible witness” may apply to the County Court Judge or to the District Judge, or in the Province of Quebec to the Judge of the Superior Court discharging his duties in the district, for a recount of the votes on any of the following grounds, viz. that the Returning Officer (1) improperly counted, or (2) improperly rejected ballot papers, or (3) that a person, whose name was included in or excluded from the list of voters, was by the judgment of a Court not entitled or was entitled to have his name on such list, or (4) that the Returning Officer improperly summed up the votes. The application must be supported by affidavit, and if security is given to the amount of 100 dollars, the Judge is to hold a recount and certify the result to the Returning Officer. In order to allow time for an application for a recount Return. the Returning Officer is not required to make his return to the writ of election until after the sixth day from the declaration of the poll. The return is in the following form :— I hereby certify that the Member [or Members] elected for the Electoral District of - in pursuance of the within given writ as having received the majority of votes lawfully given is [or are] A, B and C [names as in nomination papers] Signed R. O. Returning Officer. The return, together with a report, and other documents are transmitted by post to the Clerk of the Crown in Chancery. A duplicate of the return is sent to each candidate, and a notice of the return is published in the Canada Gazette, The expenses of the Returning Officer are borne by the Expenses. Dominion. The Governor-General by warrant directs the Minister of Finance to pay the necessary fees, allowances 136 THE HOUSE OF COMMONS. and disbursements out of the Consolidated Revenue! If a candidate, as already pointed out, does not poll half as many votes as the candidate elected, he forfeits the 200 dollars deposit, which will then be applied by the Dominion towards the expenses of the election. The use of flags or ribbons or favours on the day of election, and within eight days before such day is forbidden? Taverns are to be closed on the polling day’ Corrupt practices, such as bribery or treating, or personation, or paying for the conveyance of voters are forbidden under heavy penalties Return to At the beginning of each Parliament a return book the Writ: is furnished by the Clerk of the Crown to the Clerk of the Commons and is sufficient evidence of the return. In addition to the return book the Clerk of the Crown sends to the Clerk of the Commons a certificate of the return to each writ “deposited as of record” in the Crown Office, and this certificate is usually required before a member takes his seat. Not unfrequently members are sworn before such certificate is made out, but in such cases a resolution is passed admitting the member to take his seat, and recommending an adherence to the practice of requiring the certificate of the Clerk of the Crown to the return of the writ. The Oath. By the British North America Act, s. 128, every member before taking his seat must take and subscribe before the Governor-General, or some person authorized by him, the following oath of allegiance :— do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria. The Clerk is the person usually authorized by the Governor-General to administer the oath. Acts for hidden. l R. 8. C. ¢. 13, ss. 121-123, 3 Th a R3. 2 Ib. s. 81. 4 Tb. ss. 84-99, ELECTION PETITIONS. 137 No penalty is incurred by a member who sits or votes without taking the oath. In 1875 attention was called to the fact that Mr Orton, Member for the Electoral District of Centre Wellington, had sat and voted without taking the oath. The Committee of Privileges, to whom the matter was referred, held that, as there was no law on the subject, he had neither incurred any penalty nor vacated his seat, but that his votes recorded before taking the oath should be struck out of the division list and the journals Since the year 1879 all new members elected after or Introat a General Election, including Ministers after re-election, apna : have been introduced on taking their seat. Previous to that year the practice was not uniform. The practical advantage of a formal introduction is that it secures the administration of the oath not being overlooked. The form of introduction is as follows: the new member standing between two other members is presented to the Speaker in these words, “Mr Speaker, I have the honour to present to you A. B, Member for the Electoral District of who has taken the oath and signed the roll and now claims the right to take his seat.” The Speaker thereupon replies: “Let the Honourable Member take his seat.” The member then advances to the Chair and pays his respects to the Speaker. 5. ELECTION PETITIONS. The trial of Election Petitions is regulated by’ the Dominion Controverted Elections Act ®. Any corrupt practice committed by a candidate or by his agent, with or without the candidate’s knowledge, voids 1 See Burinot, p. 143, 2R.8.0C.c9. 138 THE HOUSE OF COMMONS. an election. Corrupt practices include bribery, treating, undue influence, or personation. Trial of The Act confers jurisdiction to try Election Petitions on Petitions. 5 the following Courts: in Quebec : the Superior Court of the Province ; in Ontario: the Court of Appeal, and the High Court of Justice of the Province; in Nova Scotia, New Brunswick, Prince Edward's Island and the North West Territories: the Supreme Court; and in Manitoba : the Court of Queen's Bench of the Province. A Petition may be presented either by a candidate or by any one who had a right to vote at the election to which the Petition relates. The Petition is heard before one Judge without a jury and takes place in the Electoral District, to which the return in question relates, unless the Court is of opinion that the trial could be held more conveniently elsewhere. ; An Appeal is allowed in Quebec to any three judges of the Superior Court of Quebec or of Montreal, and in the other provinces to the Court of which the Judge trying the Petition is a member. Such Appeal must be limited to a preliminary objection, which, if allowed, would have put an end to the Petition, or to an Appeal from the decision of the Judge who tried the Petition on a point of law * At the conclusion of the trial the Judge makes his report s0 the Speaker who communicates it to the House. Appeal. f. OFFICERS OF THE HOUSE. The The Speaker is elected by the House? though after his Speaker lection he proceeds, accompanied by the members, to the Senate Chamber to inform his Excellency the Governor-IR. S.C.c. 9, 8 50. 2 B. N. A. Act, 1867, ss. 44, 45. OFFICERS OF THE HOUSE. 139 General that the House has “elected him to be their Speaker.” The choice of the Speaker is not “confirmed” and “approved” by the Governor-General, as it is by the Crown in England. Up to 1840 the election of the Speaker of the Legislative Assembly in both Upper and Lower Canada was always “approved” by the Governor. but such approval is not essential *. When a Speaker dies or resigns during a prorogation, the House of Commons at the opening of the next Session adopts the English practice of proceeding to the Senate Chamber and asking the authority of the Governor-General to proceed to the election of a Speaker according to law® The duties of the Speaker are prescribed by Standing Duties of Orders, by the customs of the House, and by English pre- Spealcer. cedents. He presides over all meetings of the House °, and receives and puts all motions. He communicates to the House all messages received from the Governor-General or from the Senate. If necessary he reprimands members and under the instructions of the House commits persons to the custody of the Sergeant at Arms. He decides points of order, subject to an appeal to the House, and enforces all rules, and is the official mouthpiece of the House when an address is presented to the Crown or to the Governor-General. If the Speaker from any cause finds it necessary to leave Absence of the Chair, he may call upon the Chairman of Committees, or Spoken in his absence, upon any member, to take the Chair during the remainder of the day*. If the Speaker is unavoidably absent the Chairman of Committees acts as Deputy Speaker? The Clerk of the House is appointed by Commission The under the Great Seal to hold office during pleasure. He “™* 1 See ante p. 114. ? Burinot, p. 163. 3 B. N. A. Act, 1867, s."46. +t R.S.C.c. 14, 8. 1. & Ib, 8. 2. 140 THE HOUSE OF COMMONS. Sergeant at Arms, acts as recorder and keeps the journals of the House. The Clerk Assistant is appointed by the Speaker to assist the Clerk. The drafting of all public bills, and their revision after passing the various stages are entrusted to the “law clerk”. The Sergeant at Arms is appointed by the Crown and acts as the chief executive officer of the House, fulfilling similar functions to those performed by the same officer in the English House of Commons. 7. INTERNAL ARRANGEMENTS. Each member is provided with a seat and a desk to which is affixed a card with his name. It is the duty of the Sergeant at Arms to see to the allotment of seats. Strangers are admitted to the galleries by tickets distributed to members by the Sergeant at Arms, and to the Speaker's gallery by order of the Speaker. Strangers are not obliged to withdraw when a division takes place, but either the Speaker or the House may order the withdrawal of strangers. 8. RESIGNATION. A member resigns or vacates his seat: (1) By giving notice of resignation from his place in the House. (2) By giving written notice under seal attested by two witnesses to the Speaker, or if there be no Speaker or if the member be Speaker, to two members. No member can resign while his election is contested, nor until the time during which it may be contested has elapsed *. IL R. S.C.c. 14, 8. 12. RESIGNATION. 41 (3) By death. (4) By accepting certain offices The House of Commons on at least one occasion since Expulsion the Confederation has expelled a member. Previous to of Mem. the Union the Legislative Assemblies of Lower and Upper Canada had several times exercised the power of expulsion® In 1874 Louis Riel accused of the murder of Thomas Scott, was expelled as a fugitive from justice, and when he was returned again in 1875, a new writ was ordered to be issued for the election of a new member “in the room of Louis Riel adjudged an outlaw.” ! RB. 8.C.c. 14, 83. 5—7. See ante, p. 129. 2 See cases in Burinot, p. 150. CHAPTER XIII Tar SENATE. 1. NUMBER. N. W.T THE number of senators by the B. N. A. Act, 1867, s. 22, was limited to 72, 24 being assigned to Ontario, 24 to Quebec, 12 to Nova Scotia and 12 to New Brunswick. On the admission of British Columbia the Order in Council of the 16th May, 1871, assigned three senators to the province and thus increased the number to 75. When Prince Edward’s Island was admitted in 1878, no addition was made to the Senate, but in accordance with section 147 of the B. N. A. Act, 1867, Nova Scotia and New Brunswick were cach deprived of two senators, and the four places thus obtained were given to the newly admitted province. Manitoba by the 83 Vic. c. 3, s. 3, had three senators assigned to it under the powers conferred on the Dominion Parliament by the Imperial Act 34 and 85 Vic. c. 28, thus bringing the number up to 78. Any doubt as to the validity of the addition of senators by the last mentioned act was set at rest by the Imperial Act 49 and 50 Vie. c. 85, which confers on the Dominion Parliament full power to make provision for the representation in the Senate of any new province or of any territory. In 1887 a Dominion Act' provided that the North-West Territories were to be represented by two senators possessing the same qualification as other senators. 1 50 gnd 51 Vie. ¢, 3. THE SENATE. 148 The 26th section of the B. N. A. Act of 1867 empowered Additiona the Crown on the recommendation of the Governor-General, members. to direct at any time, that three or six members be added to the Senate. In Dec. 1878 the Canadian Privy Council, nominally “in the public interests,” but in reality to increase the supporters of the Ministry in the House, advised that an application be made to Her Majesty to add six members. The recommendation was forwarded by the Governor-General to the Colonial Secretary who, under the circumstances, declined to advise Her Majesty to comply with the request. “After a careful examination of the question,” said the Colonial Secretary, “which is one of considerable importance, I am satisfied that the intention of the framers of the 26th section of the B. N. A. Act, 1867, was that this power should be vested in Her Majesty, in order to provide a means of bringing the Senate into accord with the House of Commons in the event of an actual collision of opinion between the two Houses. You will readily understand that Her Majesty could not be advised to take the responsibility of interfering with the constitution of the Senate, except upon an occasion when it had been made apparent that a difference had arisen between the two Houses of so serious and permanent a character that the Government could not be carried on without Her intervention, and where it could be shewn that the limited creation of senators allowed by the Act would apply an adequate remedy. This view is, I may observe, strongly confirmed by the provisions of the 27th section, which shew that the addition to the Senate is only to be temporary and that the Senate is to be reduced to its usual number as soon as possible after the necessity for’ the exercise of the special power has passed away.” - Can. Sess. Papers, 1877, No. 68. 144 THE SENATE. 9, QUALIFICATIONS OF SENATORS. By section 23 of the B. N. A. Act, 1867, the qualifications required of a Senator are as follows :— Age. 1. He must be 30 years of age. Subject. 2. He must be either (¢) a natural born subject of the Queen, or (b) a naturalised subject. Naturalisation is one of the subjects specifically reserved to the Dominion Parliament, and therefore an alien can only be naturalised by force of a Dominion or of an Imperial Act of Parliament. The status of aliens naturalised before the Union by a Provincial Legislature is recognised, and such subjects may be Senators. 3. His real and personal property must be of the value of 4000 dollars over and above his debts and liabilities. (@) Of this property a certain minimum amount must consist of freeholds of which he is seised for his own benefit. The lands referred to in the Act' are “lands or tenements held in free and common socage...or held in franc-alleu or in roture.” Property. (b) The minimum amount of freehold property is 4000 dollars, and such amount is calculated “over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of, or charged in or affecting the same.” (¢c) It is not necessary that the freeholds should be in the particular Electoral District of the Province for which the Senator sits, except in the case of Quebec Senators who are non-resident in the Provinee of Quebec’ 4. He must be resident in the Province for which he is appointed’. The Senators from Quebec are an exception to 1 B, N. A. A. 8. 23, (31). 2 See below, 3B, N, A. A. 5 23 (5). APPOINTMENT OF SENATORS. 145 this rule, as it is sufficient if non-residents have the real property qualification in the electoral division for which they are appointed™ 5. Before taking his seat a Senator must subscribe the Oath. Oath of Allegiance, and make a declaration that he is duly qualified in respect of property for sitting in the Senate®. In 1880 a resolution was adopted by the Senate by which every member is required, within the first twenty days of the first session of each parliament, to take before the Clerk in the form prescribed by the B. N. A. Act 1867, a renewed declaration as to his property qualification. A Senator is forbidden, under a penalty of 200 dollars Senators . 7. 47 : not to be a day, to be directly or indirectly a party to or concerned parties to in a contract with the government, but this is not to affect io a Senator who is a shareholder in a public company that contracts. has with the government a contract not relating to the building of any public work®. All questions relating to the qualification of a Senator Questions . a or to a vacancy in the Senate are heard and determined by Qualifica. the Senate? tion. 3. How APPOINTED. Senators in Canada are not, as in the United States, elected by the legislative bodies in the different states. They are appointed by the Governor-General, but the Governor-General in making the appointments is required to nominate a certain fixed number from the residents in each province except Quebec. A Senator is appointed by instrument under the Great Seal. The form in use is as follows :— 1 Ib. sec. 23 (6). 2 B. N. A. Act, 1867, 5. 128. 3 R.8.C.e 11, 5. 18. 4 B. N. A. Act, s. 38. 10 146 Form of . Appoint- Dufferin. ment. (1. 8.) THE SENATE. CANADA. VictoriA by the grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith &e. To our trusty and well-beloved of our Province of in our Dominion of Canada. GREETING :— Know ye that as well for our especial trust and confidence we have manifested in you as for the purpose of obtaining your advice and assistance in all weighty and arduous affairs, which may the state and defence of Our Dominion of Canada concern, We have thought fit to summon you to the Senate of our said Dominion [and we do appoint you for the electoral division of Quebec] and we do command you the said that all difficulties and excuses whatsoever laying aside, you be and appear for the purpose aforesaid in the Senate of our said Dominion ab all times whenever and wheresoever Our Parliament may be in Our said Dominion convoked and holden: and this you are in no wise to omit. In testimony whereof we have caused our letters to be made Patent and the Great Seal of Canada to be hereunto affixed. Witness &c. Bv command Clerk of the Crown in Chancery, Canada. Form of The form of Introduction may be illustrated by an [sae extract from the Senate Journals of Canada. «The Honourable the Speaker informed the House that there was a Member without, ready to be introduced. MEETING. +7 “When the Honourable A. B. was introduced between the Introdue Members X and Y, tion. “The Honourable A. B. presented Her Majesty's writ summoning him to the Senate. “The same was then read by the Clerk and ordered to be put upon the Journal. “Then the Honourable A. B, took and subscribed the oath prescribed by law which was administered by C. D. a Commissioner appointed for that purpose and took his seat accordingly. “The Honourable the Speaker acquainted the House that the Clerk of the Senate had laid upon the table the certificate of one of the Commissioners setting forth that the Honourable A. B., a member of the Senate, had made and subscribed the Declaration of Qualification required by the British North America Act 1867.” 4. MEETING OF THE SENATE. Fifteen Members, including the Speaker. are necessary Quorum. to form a quorum® The Speaker is appointed by the Governor-General and is removable by him? All questions are decided by a majority of votes. The Speaker in all cases has a vote as well as a casting vote®. Senators enjoy the same privileges as members of the Privileges. House of Commons, and are entitled to payment for their services. 5. TENURE OF OFFICES. A Senator holds his office for life, but he may resign by a writing under his hand addressed to the Governor-General®, His place is liable to become vacant in the following Cases — ! B. N, A. Act, s. 85. 2 Ib. s. 36. t B, N. A. Act, 5. 29. 5 Ib, 8, 30. | 0— 2 140 THE SENATE, Vacancies. 1, If for two consecutive sessions of the Parliament he fails to give his attendance. 2. If he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a foreign power, or does an act whereby he becomes a subject or citizen, or entitled to the rights or privileges of a subject or citizen, of a foreign power. 3. If he is adjudged bankrupt or insolvent, or applies for the benefit of any law relating to insolvent debtors, or becomes a public defaulter. 4. If he is attainted of treason, or convicted of felony or of any infamous crime. 5. If he ceases to be qualified by property or residence ; but a Senator holding an office under the Government requiring his presence at the seat of Government is not to be disqualified by reason of his residence there. CHAPTER XIV. THE METHOD OF LEGISLATION. THE method of legislation is regulated by (1) statutes, How regu. (2) standing orders and rules adopted by Parliament, and fated. (3) customs. Some provisions affecting the procedure of Parliament Statute, are to be found in the British North America Act 1867. The 54th section, for instance, enacts, that it is not lawful for the House of Commons to pass any vote, resolution, address, or bill for the appropriation of any part of the public revenue or any tax, to any purpose that has not been recommended to that House by message of the Governor-General, and the 133rd section requires all acts of the Parliament of Canada bo be printed in both French and English. With the above exceptions the procedure in either House Standing is mainly governed by rules based on the practice of the tl English Parliament. In the early legislative councils of Sossin. Upper and of Lower Canada the practice of the House of Lords was adopted’; but when legislative assemblies were summoned they resolved to follow as far as circumstances would permit the rules, orders and usages of the English House of Commons®. When the Dominion Parliament met in 1867, the House of Commons appointed a Committee to frame rules for governing the procedure in that House, and ! Burinot, p. 212. “2 Ih, p. 212. Christie’s Low. Can. 130-139, 150 THE METHOD OF LEGISLATION. the Committee practically adopted the rules previously in force in the former legislative assembly of Canada. Sessional orders are rules of a temporary nature intended to govern the business of the session, such as the time of adjournment or the presentation of papers’; resolutions may also be passed but their force will expire at the end of the session” Aariorsde The rules and standing orders may from time to time vent of 1o amended. The amendments are in the first instance discussed by a Special Committee appointed by the House, of which Committee the Speaker is always a member, and are afterwards considered by a Committee of the whole House’. Suspen- The Senate and House of Commons never permit their lon of rules and standing orders to be suspended, except by unanimous consent though a rule may be repealed or amended by a majority of the members*. Sessional orders. Tae Housk or COMMONS. Com- The House on days when it is in session meets at three eteg o'clock’ Twenty members including the Speaker are rethesitting. quired to constitute a quorum? and if on taking the chair the Speaker finds that 20 members are not present, he adjourns the House until the usual hour on the next sitting day”. A count-out rarely happens in Canada. Contrary to the English practice members may enter the House during the whole time the count is going on® The Speaker reads a form of prayer adopted by the House in 1877, the doors are then opened and the business of the day proceeds. Order of The order of routine business in the Commons is as business. flows? —— 1 Burinot, p. 217. 2 Th. 3 Ib, p, 214. ¢ Tb. p. 215. 5 At 6 o'clock the Speaker leaves the chair until 7.30, 5 B, N. A. Act 1867, ss. 35, 48, 7” Com. 8.0. 1, 2. 3 Rurinot. n. 248. ? Com. S. 0. 19. PETITIONS. 51 Presenting petitions. Reading and receiving petitions. Presenting reports by Standing and Select Committees. Motions. After the routine business come Questions, Notices of Motion, Private Bills, Government Orders, and Public Bills but the order in which these matters are taken varies. On Tuesdays and Fridays Government Notices and Orders take precedence, on Wednesdays and Thursdays Questions have the first place, whilst on Mondays the House first considers Private Bills. On presenting a petition the member having charge Petitions. of it is allowed to state the parties from whom it comes the number of signatures attached to it, and the material allegations it contains. He is not allowed to read it, though he may have that done by the clerk at the table. He must endorse his name on it and is answerable for its not containing any objectionable matter’. The petition is taken charge of by one of the clerks and after passing through the Journals’ office, where it is examined so as to see that it is framed in accordance with the rules of the House, it is two days after presentation brought to the table to be read and received. Any member may oppose the reception of the petition. By consent of the whole House a petition may be received when it is presented, but this course is only adopted in an urgent case, or where it is advisable to refer it at once to a Committee® The House, following the practice of the English House Petitions of Commons? refuses to receive any petition involving directly forMoney a grant of money, unless it is first recommended by the Crown*. This does not apply to petitions which are expressed L Com. S. O. 8486. 3 May, 613. 2 Burinot, p. 269. ¢ Can. Com. J. 1867—8, 297. 152 THE METHOD OF LEGISLATION. in general terms and do not directly ask for public aid or which ask the House only to take the facts into its consideration or to adopt such measures as the House may shink it expedient to take. Petitions Up to 1876 petitions asking for imposition of duties regarding were not received, but in that year it was thought advisable to alter the practice and to receive them. Petitions also are received asking for bounties for a particular industry, for remission on public grounds of taxes or duties, or for compensation for losses through legislation, but a petition in which a bounty is demanded for a particular individual, or which prays for remission of a debt due to the Crown® 's not received. Every private bill is initiated by means of a petition, and such petition is governed by the ordinarv rules regulating oetitions. Opposition to private bills also is commenced by a oetition, A public bill may originate in either House, except when it involves an appropriation of the revenue or imposes a tax”. The method of procedure in the Senate differs in some respects from that adopted in the House of Commons, but both Houses have followed very closely the English practice. In the Commons a bill passes through seven stages, viz. (1) Introduction, (2) First reading, (3) Second reading, (4) Committee, (5) Report, (6) Third reading, (7) Passing. Three By the standing orders of each House the three readings eadines. ore as a rule to be on separate days, except in the case of aills of an urgent nature®, The Senate in a case of urgency formally suspends its standing orders, but in the Commons it is sufficient for the House to declare the matter nroent’ . Burinot, p. 266. 2 See Burinot, p. 268, 3 B. N. A. Act, 1867, 5. 58. 4 Sen. 8. 0. 41, 42, Com. 8. O. 43. 5 Burinot, np. 559. INTRODUCTION OF BILLS. 153 Introduction. In the House of Commons every bill is i Jor introduced upon motion for leave specifying the title of the bill’, and therefore two days’ notice must be given®; a copy of the bill must be furnished to the Speaker along with the motion in writing. It is usual for the member in charge to explain clearly the main provisions of the measure®, but though there is no rule preventing a debate or forbidding an amendment, it is not usual to discuss the bill at this stage. There are two classes of bills that cannot be introduced directly on motion, but which require to be first considered in committee—(1) Bills relating to Trade, and (2) Money Bills. I. Bills relating to Trade. The 41st standing order of Bills rethe House of Commons provides, that all bills relating to uisy to trade or to the alteration of the laws concerning trade must be first considered in Committee in order to give opportunity for full discussion and a wide notice to persons interested. There is no such rule in the Senate. The rule applies to bills affecting trade generally as well as those relating to a particular trade®. 2. Money Bills. By order 88, it is provided Money “If any motion be made in the House for any public aid Bills. or charge upon the people, the consideration and debate thereof may not be presently entered upon but shall be adjourned until such future day as the House may think fit to appoint: and then it shall be referred to a Committee of the whole House before any resolution or vote of the House do pass thereon.” This rule requires that money bills shall first be considered as resolutions in Committee of the whole House? 1 Com. 8S. 0. 89. 2 Tb. 81. 3 Burinot, p. 517. 4 May, 530, and see Burinot, p. 519, for cases to which the rule has been held to be applicable in Canada. 5 Apart from this such bills must be recommended by the Governor-Greneral, see post p. 164. 154 THE METHOD OF LEGISLATION. Money Rilla. If a bill contains only some clauses involving the payment of money it may be introduced on motion. The money clauses (which are not considered to be part of the bill) go before the Committee and after approval are incorporated with the bill: but this course can be adopted only if the clauses in question are a subsidiary part of the bill “Whenever the main object of a bill is the payment of public money it must directly originate in Committee of the whole or else the proceedings will be null and void the moment objection is taken.” The rule does not apply either to clauses imposing pecuniary penalties or to bills of a declaratory nature® A similar rule prevails in the English House of Commons, and the principle is extended to bills, relating to Religion or altering laws relating to Religion? In the Senate no notice or leave is required to bring in a bill. By standing orders 39 and 40 it is provided that “It is the right of every Senator to bring in a bill.” “Immediately after the bill is presented it is read a first sine and ordered to be printed.” This corresponds with the English practice. First First reading. After leave has been given to introduce Reading. the bill it is read a first time without amendment or debate*, The Speaker then proposes the formal question “when shall the bill be read a second time ?” in order that the bill may oe placed on the orders of the day for second reading, a motion that is usually never opposed® Second Second reading. On the motion for second reading the Reading. Commons discuss the principle of the measure, and it is out of order to discuss the clauses seriattm. The Senate has an xpress rule “43, the principle of a bill is usually debated at its second reading.” As regards amendments the same . Burinot, p. 524. 2 Tb., pp. 525, 526. 3 Anson, p. 226 « Com. S. 0. 42. 5 Burinot, p. 528. COMMITTEES. 155 practice prevails as in the English House of Commons, the second reading may be rejected or an amendment may be carried that it be read on ——— next. If the bill be read a second time, it is then proposed “that the House go into Committee on the bill op ——— next,” but in some cases it is referred to a Select Committee sessional or standing. Committee. Three kinds of Committees have been Commitestablished by the Canadian Parliament (1) Committees ree. of the whole, (2) Special Committees, and (3) Joint Committees. (1) Committees of the whole are composed of all the members and sit in the house itself. (2) The Special Committees fall into two classes. Special Commit-(¢) Standing Committees appointed at the commence- in 3 ment of each session to inquire into and report on matters ing Comreferred to them by the House and relating to special fixed mittees. siunhiects. In the Commons these Committees are appointed on the following subjects: (1) Privileges and Elections. (2) Standing orders. (8) Printing Public accounts. (4) Expiring laws. (5) Railway, canal and telegraph lines. (6) Miscellaneous private bills. (7) Banking and Commerce. (8) Immigration and Colonization. In the Senate similar Committees are appointed for standing orders, private bills, railways, telegraphs and harbours, and banking and commerce. Tt will be observed that some of these Committees correspond to the two Grand Committees on (1) The Courts of 156 THE METHOD OF LEGISLATION. Law and procedure, and (2) Trade, shipping and manufactures formed by the House of Commons in 1882. The English Grand Committees are required to consist of not less than 60, and not more than 80, members, but in Canada the standing Committees may consist of any number. The smaller Committees consist of from 30 to 40 members, whilst as many as 130 may be on the more important Committees. (5) Other (6) Special Committees are often appointed to consider Special a particular subject, such as trade between different proees. vinces, criminal law ete! In the Commons these Committees axcept in special cases’ are, as in England, limited to 15 members, but in the Senate the number is not limited®. The Commons maintain still the old English rule that a member opposed to the principle of a bill cannot serve on a Select Committee to which such bill is referred. The 18th standing order provides— “It shall always be understood that no member who declares against the principle or substance of a bill, resolution or matter 50 be committed can be nominated of such committee.” A member, who merely takes objection to some particulars of the bill, or who opposes the appointment of the Committee, is not considered as coming within the scope of the rule? In England the rule no longer prevails: all that is required is that the members nominated shall be willing to serve, JointCom- (3) Joint Committees are Committees appointed jointly ans by both Houses. Standing joint Committees are usually appointed to look after the Library belonging to the Houses and Government printing. Each House appoints a Committee on these subiects and authorizes it to confer L Burinot, p. 430. 2 Com. 8. O. 78, 79. 3 Burinot, p. 430. i Tex Parl, 829, 331. 5 Burinot, pn. 435. 8 FE. S O 9R8. COMMITTEES. 157 with the Committee of the other House and then informs the other House by message of what it has done’. In some cases and always in the case of private bills, Witnesses. witnesses are examined before the Committees, and by the 39 Viet. c. 7, witnesses may be examined on oath if the House thinks fit. Previous to this Act it was held by the law officers of the Crown in England, that the Canadian Parliament could not by statute, vest in itself power to administer oaths where such power was not possessed by the English House of Commons at the time the British North America Act 1867 was passed. And as until the year 1871% the English House of Commons, except in the case of private bills®, did not possess the power to administer an oath Canadian bills giving power to administer oaths generally were disallowed. To obviate this difficulty an Act® was passed by the Imperial Parliament giving the Dominion Parliament the right to define by Act the powers, privileges and immunities to be enjoyed by the Senate and House of Commons, provided such powers, privileges and immunities should not exceed those enjoyed by the English House of Commons at the time of the passing of such Act bv the Canadian Parliament. Under the provisions of this Act the Canadian Parliament in 1876 passed an Act® giving the necessary power to examine witnesses on oath or on affirmation. An ordinary public bill is usually referred to one of the above Committees but in some cases this course is not adopted. The Appropriation Bill is not referred to Com- Appromittee in either the Commons or the Senate”; and in some en cases where a bill was founded on resolutions passed in i Burinot, pp. 403, 427. 2 34 and 35 Viet. (i.) ¢. 88. 8 Under 21 and 22 Vict. (i.) e. 78. ¢ Can. Com. J. 1873, Oct. sess. p. 5. 5 38 and 89 Viet. (i.) c. 88, see App, 6 39 Vict. e. 7. ” Burinot. ». 549. 158 THE METHOD OF LEGISLATION. Committee of the whole, the Commons instead of committing the bill have had it read at length’. Mr Burinot® suggests that this practice has been followed only in a few cases where there was no wish to introduce amendments. Assuming that the House is going into Committee on the bill the procedure is as follows. Commit- When the order for the day for the Committee is reached, see of the as 7 . z whole. and it is desired to have any “Instructions” given to the Committee, a motion to that effect should then be made. The object of such instructions is to confer on the Committee some power it would not otherwise possess. If no motion is made for instructions, the Speaker puts she question “that I do now leave the chair,” on which a debate may ensue... When the House finally resolves itself into Committee, the Speaker leaves the chair, and there being no permanent Chairman of Committees as in England he in accordance with the standing orders calls on some member to take the chair. The bill is then considered clause by clause, the preamble and title being last considered®. At any time new clauses may be considered and amendments though not within the scove and title of the hill* may be introduced. After all the clauses have been considered the Chairman makes a report to the House. The bill is usually taken into consideration at once, and a time is appointed for the third reading. The English practice of amending a bill at this stage is usual in the Senate out it has not been adopted in the Commons, though the bill may be recommitted with or without limitations. Third Third Reading. On the third reading in the Commons Reading. the English practice is adopted of not allowing any amendment except mere verbal ones, though in former years substantial changes were sometimes introduced at this t Can. Com. J. 1867—8, 37, 226, 314. 2 Burinot, p. 509. 3 Com. 8. O. 45. 4 Burinot, p. 543. Report. PRIVATE BILLS. 159 stage’. On the other hand the Senate constantly amends bills on the third reading without referring them back to Committee? Motion, that Bill do pass. After the third reading the Passing. next question is “That this bill do pass;” and though usually this is carried nem. con. immediately after the third reading, it may be deferred or be postponed to a future day®. This seems to be the proper time for amending the title if necessary. The bill being passed is reprinted and by order of the Subse. House is communicated to the Senate through one of the LH clerks, who presents it at the bar. If the Senate passes the bill without any amendment, a written message is sent to that effect, but if it is rejected no message is sent. If passed with amendments it is returned with such amendments attached to a copy of the bill. The amendments may be accepted, in which case they are read twice and agreed to forthwith, and a message returned to that effect. When the amendments are important, a member may propose “that they be read that day — months” and if such motion be carried, the bill is practically thrown out, or he may move that the amendments be disagreed to for certain reasons, in which case the reasons are communicated to the other House. The practice of holding a Conference is no longer resorted to? and if the two Houses cannot agree, the bill must drop for that session. PrivaTE BILLS. A Private Bill may be defined as a bill which relates to Publicand the interests of private individuals or of corporate bedies, Ete and does not affect the interests of the community as a whole. It is somewhat difficult to draw the line between 1 Burinot, p. 550. * Ib. pp. 402, 554. 2 Ib, 3 Tb. p. 551. 4 Th. L60 THE METHOD OF LEGISLATION. public and private bills, inasmuch as some bills may relate as much to the public interest as to individual interest. In Canada it rests with the Speaker or with the Committee to which the bill is referred to decide the class to which a bill belongs. Owing to the restrictions that have been imposed on the legislative power of Canada, it is possible for a private bill to be introduced relating to a matter not within the legislative competence of the Dominion. Sometimes the point is raised in the House itself and sometimes in Committee, and when it is clear that any provisions of the bill are “unconstitutional,” they are always struck out. Rofo As a further precaution against passing an ‘illegal’ Act, it preme was provided by the Supreme and Exchequer Court Act’, Court. that the Supreme Court or any two of its judges should sxamine and report upon any private bill or petition for a private bill referred to the Court under any of the rules of either House of Parliament. A private bill is introduced by petition. As a rule previous to its introduction notice of its main provisions has to be given in the Canadian Gazette and in the local papers. Contrary to the English practice a member of the House may take charge of the bill and promote its progress. As the rules that govern ordinary petitions apply to a private bill petition, a member during the first ten days of the session presents the petition in his place, restricting himself to a statement of its prayer. It is then referred as a matter of course to the Committee on Standing Orders, who report whether the rule with regard to notice has been complied with. If there has been any informality in the notice the Committee may yet recommend the House to dispense with a regular notice, and it seems the Committee are inclined to adopt this course, where it appears that the parties interested have had sufficient notice, and that no interests are affected except those of the petitioners. i 88 Vie. c. 11. PRIVATE BILLS. 161 Where the Committee reports favourably the petition is 1st & 2nd at once presented and leave given to read it a first time. readings. On a subsequent occasion it is read a second time, and though at this or any other stage it may be opposed, it is usual bo refer it without opposition to a Committee. In England Comthe Committee on a private bill usually consists of four mittee: members nominated by a “Committee of Selection” In Canada a private bill goes before one of the large standing Committees according to its class. In the House of Commons there are four such Committees, (1) Standing Orders, 42 members, (2) Railways, Canals and Telegraph Lines, 136 members, (3) Banking and Commerce, 98 members, and (4) Miscellaneous Private Bills, 70 members. In the Senate the Committees are three in number, (1) Standing Orders and Private Bills. 36 members, (2) Railways, Telegraphs and Harbours, 32 members, and (3) Banks and Commerce, 29 members, The Committee hears evidence for and against the bill, following the English practice, and finally makes its report to the House. If the report is favourable, the bill is read a third time. The different stages of a private bill in the Senate In Senate. are practically the same as those in the Commons, but in the case of Divorce bills which, in accordance with the Canadian practice, are introduced in the Senate, special rules have been laid down? 1 For a more detailed account of private bill legislation see Burinot, pp. 584—680. {1 CHAPTER XV. TEE GOVERNOR-GENERAL. Office THE office of Governor-General of Canada created by the ried by Crown by Letters Patent existed prior to the Union of 1867, Patent. fut after the Confederation the Letters Patent were revised, and new ones were issued in 1878. The Letters Patent create the office and declare that the person who shall fill the office shall be appointed by Commission under Sign Manual and Signet, and that he shall exercise the powers vested in him by virtue of the Letters Patent and of the Commission issued to him, according to such Instructions as may from time to time be given to him either under Sign Manual and Signet, or by Order in Council, or by Her Majesty through one of the Secretaries of State and in accordance with such laws as may be in force in the Dominion. Changes, When the draft of these Letters Patent was submitted byCanada. t0 the Canadian Government, it was urged by the then Minister of Justice that, as Canada possessed more extensive powers of self-government than had been conceded to any other colony, and consisted not of one province but of seven provinces, the widest powers possible consistent with the British North America Act should be conferred on the Governor-General. This principle was practically adopted by the Home Government, and on the appointment of the Marquis of Lorne several changes were introduced into the Commission and Instructions. of which the more important were as follows :— 1 Ses Appendix. THE GOVERNOR-GENERAL. 163 The clauses (1) relating to meetings of the Privy Council, (2) authorizing the Governor to act in opposition to the advice of his ministers, (3) prescribing certain classes of bills to be reserved for Imperial consideration, (4) dealing with matters within the province of the provincial Legislatures were omitted ; whilst the clause relating to the exercise of the prerogative of pardon was modified so as to draw a distinction between local cases and cases of Imperial interest, The new Letters Patent” empower the Governor-General Powers to keep and use the Great Seal of the Dominion ; to appoint pred all judges, justices, and such other officers as might be ap- Letters pointed by Her Majesty; to remove upon sufficient cause any person appointed to any office by or under the authority of the Crown; to summon, prorogue and dissolve the Dominion Parliament, and to appoint a Deputy. The Letters Paterit also make provision for appointing a Lieutenant-Governor or other person to perform the duties of the office in case of the death, incapacity, removal or absence of the Governor-General. The Instructions® require the Governor-General to take Tastes. the oath of allegiance, the oath for due execution of his office, ’ and for due and impartial administration of justice; and authorize him to administer the oath of allegiance and any other oath prescribed to all persons holding any office: they also empower him to exercise under certain conditions the prerogative of mercy, and lay down certain rules to be observed in transmitting laws to which he has assented or which he has reserved for Her Majesty's consideration. The Commission simply appoints the person selected to Commisthe office. sion. The object of the Letters Patent and Instructions is to confer on the Governor-General those powers, necessary ! Bee Todd, Chap. IV. for a detailed account of these changes. * See Appendix, where Letters Patent and Instructions are set out at length. [3 >] a 164 THE GOVERNOR-GENERAL. for discharging the duties of the office, which are vested in Her Majesty, either as being part of her prerogative powers or under s. 9 of the B. N. A. Act, which declares, that “the Executive Government and Authority of and over Canada is hereby declared to continue and be vested in the Queen.” As above stated the Governor-General is appointed by the Crown by Commission’. He holds office during the pleasure of the Crown, but in accordance with the standing rule of the Colonial Office his term of service is limited to five or six years. His annual salary has been fixed at £10,000, and is payable out of the Consolidated Revenue Fund of Canada? The Governor-General is a corporation sole, and all bonds and other instruments taken by him in his public capacity are given to him and his successors by his name of office®. The position of the Governor-General may be considered as regards (1) the Legislature, (2) Party Government, (3) the Executive, (4) the Judicature, (5) the Prerogatives of the Srown. (6) the Provinces, and (7) his Responsibility. 1. POWERS AS REGARDS THE DOMINION LEGISLATURE. 1. He selects and summons qualified persons to the Senate* and fills up all vacancies’. He has also power to recommend the Queen to add three or six additional members representing equally Ontario, Quebec, and the Maritime Provinces of Nova Scotia and New Brunswick®. Appoints 2. He appoints and may remove the Speaker of the Speaker 7 +f Senate. Senate, who must however be a senator’. Summons 3. He summons and calls together the House of House of 8 Commons, Commons®, Recom.- 4. He recommends to the House of Commons the mends 2 vom ° money levying of taxes and the appropriation of the revenue®. hilla Appoints Senators. 1 See Appendix for form of Commission. 2 B, N. A. Act, 5. 105. R.8.0C.0. 8,8 2. 3 R.8.C.c.8 8.1. 4 B.N. A, Act, 8. 24. 5 Tb, 5.32, © B. N. A, Act, s. 26, see ante, p. 143. " Ib. 8. 84. 8 Ib. s. 88, 9 Ih. 8. 54. LEGISLATIVE POWERS. 1A5 5. By a clause in the Letters Patent the Crown has Summons conferred on the Governor-General all powers belonging to ves par the Crown in respect of the summoning, proroguing, or lament. dissolving of Parliament. 6. He assents to bills on behalf of the Crown. Assents to The position of the Governor-General in regard to Bis. assenting to bills is governed by the 55th section of the British North America Act 1867 :— “Where a bill passed by the Houses of Parliament is presented to the Governor-General for the Queen’s assent, he shall declare according to his discretion, but subject to the provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen's name or that he withholds the Queen’s assent, or that he reserves the bill for the signification of the Queen’s pleasure.” Tt will be seen from this section that “subject to Her Majesty’s Instructions” three courses are open to the Governor-General “according to his discretion,” he may assent to the bill, or he may veto it, or he may reserve it for the Queen’s pleasure. It is therefore necessary to enquire what Instructions are usually given to the Governor-General, and how his discretion in assenting or vetoing is usually exercised. As regards the Instructions they are silent on the subject, except in so far as they require him to transmit all laws assented to or reserved by him, with explanatory observations in regard to the occasions and reasons for proposing such laws®. Previous to the revision of the Instructions in 1878* the Governor-General was expressly required not to assent to bills which related to divorce, or granted land or money to the Governor, or made paper money legal tender, or imposed differential duties, or were contrary to treaty stipulations, or infringed the discipline or control of Her Majesty’s forces, or affected the Royal prerogative, or contained 1 Yee Instructions in Appendix. 2 See ante, p. 162. [66 THE GOVERNOR-GENERAL. provisions to which the Royal consent had once been refused, unless the bill contained a suspending clause, or unless some argent necessity existed and the bill was not contrary to the law of England or to treaty stipulations’. Between 1867 and 1878 twenty-one bills, eleven of these relating to divorce, were reserved’; but since the last-mentioned year the Royal Instructions have not required any bill to be reserved, on the ground that it was “undesirable that they should contain anything which would be interpreted as limiting or defining the legislative powers conferred in 1867 on the Dominion Parliament®,” and that the reserved power of disallowance possessed by Her Majesty in Council* was sufficient for the protection of Imperial interests. The Governor-General may, however, under the section above quoted reserve a bill for the signification of the Queen’s pleasure, in which case it does not become law antil the Governor-General signifies by speech or message to sach of the Houses of Parliament, or by proclamation, that it has received the assent of the Queen in Council? Not bound ~~ In exercising his discretionary powers in regard to by Slow legislation a Governor-General has to act on his own ministers. yesponsibility, and is not bound to follow the advice of his ministers, though he usually takes this course’. The assent of the Governor is not conclusive, as a bill, even if assented to by him, may be disallowed by the Crown”. But the Governor before assenting ought to satisfy himself that the bill is within the class of subjects over which the Dominion Parliament has legislative power. It is usual for him to receive from the Minister of Justice or from the Law Officers of the Crown in the Colony a ceport on bills submitted for his assent, and he may, if Bills reserved. t Sess. J. (1873), 74; Sess. Pap. 1867—8. No 22: Burinot. p. 569. ? Burinot, p. 570. 3 Despatch of Secretary for Colonies, Can. 8. Pap. 1877, No. 13; Ib. 1880, No. 51, 4 See ante, p. 163. 5 B. N. A. Act. 8. 57. 8 Todd. p. 137. 7 See most, ¢. XI. PARTY GOVERNMENT. L67 the matter be not of purely local concern, refer the matter to the Imperial Law Officers™. The British North America Act 1867 is silent both as to Manner the place and manner of giving the Royal assent, except in Solas the case of bills reserved, where it may be given orally, or by sork: message or by proclamation”. The usual course adopted is for the Governor-General to give the Royal assent in the presence of both Houses. 2. DUTIES AS REGARDS PARTY GOVERNMENT. It is the duty of a Governor-General to observe strict Neutral neutrality towards the different parties in the Legislature Dn as in regard to all questions in which neither the prerogatives pasion. of the Crown nor Imperial interests are involved. In all local matters the judgment of the people expressed in their Legislatures must prevail, and a Governor-General ought always to accept and act by the advice of a Ministry prepared to give effect to such judgment. But in all questions involving either Imperial interests or Imperial the prerogatives of the Crown, the Governor-General has to interests. remember that he represents the Crown, and though he is expected to give due weight to the opinion of his ministers, the final decision must be made upon his own judgment and responsibility >. Under special circumstances he may consult Consult-Her Majesty's Secretary of State for the Colonies, care being ing Home taken that all sides of the controversy be placed before the ment: Imperial Government. In 1874 the Governor-General consulted the Colonial Secretary as to the advisability of following the advice of his ministers where they recommended that six additional senators should be added to the Senate*; and in 1879 at the suggestion of the Privy Council the advice of the Home Government was sought regarding the proposed removal of M Letellier from his office of Lieutenant-Governor® 1 Todd, pp. 134, 135. 2g. 57. 3 See Todd, p. 591 and authorities there quoted. 4 Todd, p. 164. 5 See post, p. 174, Todd, p. 409. 168 THE GOVERNOR-GENERAL. In matters relating either to the Royal prerogative or to Imperial interests the Governor-General may, through the Secretary of State for the Colonies, consult the English Law Officers of the Crown on any question the legality of which is doubtful’. Such opinion has been sought as to the power of the Governor-General to create Queen’s Counsel * and as bo the power of a local Legislature to define its privileges®. It would not be in accordance with the usual practice for a Governor-General to take the opinion of the English Law Officers on any matter of purely local concern: in such matters he should seek the advice of the Minister of J ustice, or of the person or persons who in the Dominion correspond to the Law Officers in England. 3. FUNCTIONS AS REGARDS THE DOMINION EXECUTIVE. The functions of the Governor-General as regards the Executive or Administration are regulated partly by Imperial Acts, partly by Dominion Statutes, and partly by the Letters Patent and Instructions already referred to. And they may be summed up by saying that he exercises in the Queen’s name on her behalf the supreme Executive Power. Appoints The Governor-General selects the members of the Council Ministers. appointed under section 11 of the B. N. A. Act to aid and advise the Government of Canada. The members of this Council or Privy Council, as it is sometimes called, form the ministry. In accordance with the well-established principles of responsible Government the members of the Council are selected from that party which enjoys the confidence of the majority of the members of the House of Commons, and the Prime Minister nominates his colleagues. Removal The Governor-General is empowered to remove members of ooun- of the Council, but in practice the ministry resign when they lose the confidence of the Legislature. By command of the LC. O. Regulations. 2 Todd, p. 241, see post, p. 172. 8 Todd. p. 471, RELATION TO EXECUTIVE. 169 Queen members of the Privy Council after their retirement are permitted to retain the title “Honourable” for life, and those who do not belong to the Cabinet for the time being may be regarded as “honourable” members of the Privy Council. By section 15 of the B. N. A. Act, the Command-in-Chief of Jo vgs the land and naval militia and of all naval and military forces and Navy. of and in Canada, is declared to continue and to be vested in the Queen. The Governor-General is not therefore the Commander-in-Chief of Her Majesty's forces, but he may in time of peace determine the object with which, and the extent to which, Her Majesty’s forces are to be employed. In 1862 the Imperial House of Commons resolved, that Colonies exercising the rights of self-government ought to undertake the main responsibility of providing for their own internal order and security, and ought to assist in their own external defence, and in accordance with this resolution British troops were withdrawn from Canada and the other Colonies. In 1868 the Dominion Parliament passed the first of a Militia series of Militia Acts in order to provide for the defence of Sh the Dominion. By the present Militia Act® the command is vested in Her Majesty, and is to be exercised either by Her Majesty personally or by the Governor-General as her representative. The Minister of Militia is charged with the administration of Militia affairs, but power is given to the Governor-General in Council from time to time to prescribe his duties? 4 POWERS AS REGARDS THE J UDICATURE. The only judicial functions that the Governor-General is called on to discharge are to hear in Council any appeal from any Act or decision of a Provincial Authority affecting any 1 R. S.C. 1886, c. 41. 2 See post, e. XVII. 170 THE GOVERNOR-GENERAL. right or privilege of a minority, whether Protestant or Roman Catholic, of the Queen’s subjects in relation to education® The Governor-General has. however, important “duties to discharge in appointing or removing judges and in exercising the prerogative of mercy. Appoint- The Judges of the Supreme, District and County Courts Juans of are appointed by the Governor-General, except in the case of the Courts of Probate in Nova Scotia and New Brunswick” In the province of Quebec the Judges are to be taken from the bar of that province®; and in Ontario, Nova Scotia, and New Brunswick they are to be selected from the respective bars of those provinces until the laws relating to property and to civil rights and to the procedure of the Courts are made uniform in those provinces®. The Letters Patent contain a clause authorizing the Governor-General to appoint all such Judges, Commissioners and Justices of the Peace as might be lawfully appointed by the Crown. Removal The Judges of the Superior Courts hold office during oh Guage. good behaviour, but are removable by the Governor-General on address from the Senate and House of Commons®. Exercises The power of pardoning offences is regulated by the ight of . Pardon, Instructions. “We do further authorize and empower our said Governor-General as he shall see occasion, in our name and on our behalf, when any crime has been committed for which the offender may be tried within our Dominion, to grant a pardon vo any accomplice not being the actual perpetrator of such crime, who shall give such information as shall lead to the sonviction of the principal offender. “And further to grant to any offender convicted of any crime in any Court or before any Judge, Justice or Magisorate within our said Dominion, a pardon, either free or 1 B. N. A. Act, 5. 93. Ib. 8. 96. 5 Ih. 8, 98. 4 Tb. s. 97. 5 Th.s. 99. R. S.C. ec. 138, RIGHT OF PARDON. 171 subject to lawful conditions, or any respite of the execution of the sentence of any such offender for such period as to our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures which may become due and payable to us. «Provided always, that our said Governor-General shall not si in any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence, that the offender shall be banished from or shall absent himself from our said Dominion. « And we do hereby direct and enjoin that our said Governor-General shall not pardon or reprieve any such offender without first receiving in capital cases the advice of Advice of the Privy Council for our said Dominion, and in other cases Sly the advice of one at least of his ministers; and in any case in which such pardon or reprieve might directly affect the interests of the Empire or of any country or place beyond the jurisdiction of the Government of our said Dominion, our said Governor-General shall before deciding as to either pardon or reprieve. take those interests specially into his own personal consideration in conjunction with such advice as aforesaid.” Tt will be observed that a distinction is drawn in these Instructions between three classes of cases, (1) Capital offences, (2) Non-capital offences, (3) Offences capital or non-capital affecting either Imperial interests or those of any country outside the Dominion. In cases of the first class the Governor- Capital | General is not to act without receiving the advice of his ministry; in cases of the second class he must consult one Nonminister, who will usually be the Minister of Justice ; whilst orm in the third class, in addition to consulting his ministry or Offences one minister as the case may be, he is required to take anal the interests of the Empire or foreign country specially into Tntarests. account. The Instructions do not in express terms require the 172 THE GOVERNOR-GENERAL. Governor-General to act on the advice of his ministers. The duty of finally deciding rests on him alone, but in actual practice there is no doubt that it would be only under very exceptional circumstances that such advice would be disregarded ; and in the correspondence between Canada and the Imperial Government prior to the issue of the above Instructions, it was understood that in all cases of a merely local nature the Governor-General should act on the advice of his ministers’. Previous to the issue of the new Instructions, the Governor-General had felt himself at liberty to disregard the advice of his ministers, and that with the approval of the Home Government. In a despatch of Earl Carnarvon to the Governors of the Australian Colonies? he said, “it is true that a Governor may (and indeed must if in his judgment it seems right) decide in opposition to the advice tendered to him.” In accordance with this principle, in 1861 Sir Edmund Head, Governor-General of Canada, granted a reprieve in a case of murder contrary to the advice of several ministers’; and in 1875 Earl Dufferin commuted a capital sentence on his own responsibility *, 5. PREROGATIVE POWERS. Appoint- As Her Majesty’s representative the Governor-General may APA appoint Queen’s Counsel. In Lenoir v. Ritchie” a majority of Counsel. the Court expressed the opinion, that the sole right of conferring the rank of Queen’s Counsel belonged to the Queen or her representativethe Governor-General, and that a Province could not by a statute confer this right on a Lieutenant-Governor, inasmuch as the Crown was not a part of a provincial Legislature and therefore no provincial statute could affect its prerogatives. t Can. Sess. Pap. 1879, No. 181. 3 Patterson’s Case, Todd, p. 269. S230an. 8S. CGC R. 575. APPOINTS LIEUTENANT-GOVERNORS. 178 6. POWERS AS REGARDS THE PROVINCES. Lieutenant-Governors of the Provinces are appointed by Appointthe Governor-General in Council by Commission under the Lieute-Great Seal of Canada. In case of the absence, illness or other nent-Go inability of the Lieutenant-Governor, the Governor-General may appoint an administrator to execute the duties of the office’. By section 59 of the British North America Act a Removal Lieutenant-Governor is not “ removable within five years from Silage his appointment except for cause assigned, which shall be Yornorscommunicated to him in writing within one month after the order for removal is made, and shall be communicated by message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not, then within one week after the commencement of the next session of the Parliament.” The section is silent as to the circumstances under which the removal of a Lieutenant-Governor would be justifiable, but the Letellier case may be Leteliier taken to have established the rule that the Governor-General Case. ought to act by and with the advice of his ministers. The facts of the case were shortly these’:—In 1878 the Lieutenant-Governor of Quebec, M. Letellier, dismissed his ministers on the ground that they had acted contrary to his representations, were encouraging a lavish expenditure in regard to railways, and had promoted a bill which he deemed to be an arbitrary and illegal infringement of vested rights. The subject was brought before the Governor-General by both sides, and a petition praying for the Lieutenant-Governor’s dismissal was addressed to the Governor-General in Council by certain members of the dismissed ministry. The Governor-General communicated the petition and the statement of the Licutenant-Governor to the Senate and the House of Commons. 1 For form of Commission, see Can. Sess. Journ. 1878, p. 175. ? See Todd. p. 405, for a more detailed account. 174 THE GOVERNOR-GENERAL, Debates ensued in both Houses. A motion declaring the dismissal of the ministry to be at variance with Constitutional government was carried in the Senate but lost in the House of Commons. In the following year a new Parliament assembled and both Houses agreed in censuring the dismissal of the Quebec Ministry. The Cabinet thereupon advised the Governor-General to remove the Lieutenant-Governor from his office. The Governor-General stated reasons for not adopting such a course, and the ministers then advised a reference to the Home Government. Sir M. Hicks-Beach, the Colonial Secretary, in a despatch dated the 3rd of July, 1879, informed the Governor-General that, in the removal of a Lieutenant-Governor from office, he ought to act by and with the advice of his ministers, who were responsible for the peace and good government of the Dominion to Parliament, to which the cause of removal had to be communicated. At the same time the Governor-General was requested to ask his ministry to review the case, as the spirit and intention of the B. N. A. Act 1867 required that tenure of office should as a rule endure for five years, and that she power of removal should only be exercised for grave cause, The despatch was communicated to the ministry, who adhered to their previous decision, and by an order in Council, dated July 25, the Lieutenant-Governor was removed from office. Disallow. By the British North America Act 1867" any Act passed Provincial by a provincial Legislature may be disallowed by the Governor-Sis: General within one year after its enactment. This power of disallowance is only exercised by the Governor on the advice of his ministers”. The course pursued in regard to all provincial Acts is governed by the principles laid down in a memorandum 1 gs. 56, 90. ? Can. Sess. Pap. 1877, No. 89. See also Ib. 1876, No. 116 and Ib. 1877, No. 89 DISALLOWANCE OF ACTS. 175 drawn up by Sir J. A. Macdonald, the Minister of Justice in 1868, approved by the Privy Council’, and communicated to the Legislatures of the different provinces. “Tn deciding whether any acts of a Provincial Legislature Reasons should be disallowed or sanctioned the Government must not Ay only consider whether it affects the interests of the whole Dominion or not; but also whether it be unconstitutional. whether it exceeds the jurisdiction conferred on Local Legislatures, and in cases where the jurisdiction is concurrent whether it clashes with the legislation of the General Parliament, as it is of importance that the course of local legislation should be interfered with as little as possible and the power of disallowance exercised with great caution—only in cases where the law and the general interests of the Dominion imperatively demand it, the undersigned recommends that the following course be pursued :— «That on receipt by Your Excellency of the Acts passed in any Province they be referred to the Minister of Justice for report, and that he with all convenient speed do report as to those Acts which he considers free from objection of any kind : and if such report be approved by Your Excellency in Council that such approval be forthwith communicated to the Provincial Government. «That he make a separate report or separate reports on those Acts which he may consider: — 1. As being altogether illegal or unconstitutional. 2. As illegal or unconstitutional in part. 3. In cases of concurrent jurisdiction, as clashing with the legislation of the general Parliament. 4, As affecting the interests of the Dominion generally: and that in such report or reports he gives his reasons for his opinions. «That where a measure is considered only partially defective or where objectionable as being prejudicial to the general I Can. Sess. Pap. 1869, No. 18. 176 THE GOVERNOR-GENERAL. Form of Report. interests of the Dominion, or as clashing with its legislation, communication should be had with the Provincial Government with respect to such measure, and that in such case the Act should not be disallowed if the general interests permit such a course until the Local Government has an opportunity of considering and discussing the objection taken, and the Local Legislature has also an opportunity of remedying the defects found to exist.” A report of the Privy Council in 1882, in regard to an Act of the Legislature of New Brunswick. will illustrate the course oursued. In 1882 the Legislature of New Brunswick passed an Act authorizing the construction of a bridge over the river St. John, and indirectly power was given to interfere with the navigation of the river, so far as was absolutely necessary for the proper carrying on of the work. The Minister of Justice reported that the provincial Legislature had no power to interfere with the navigation of the river. Subsequent proceedings appear from the report. “Certified copy of a report of the Hon. Privy Council approved by His Excellency the Governor-General in Council on the 24 July, 1883. “On a report dated the 25 July, from the acting Minister of Justice, stating with reference to the Act of the General Assembly of the province of New Brunswick passed in the year 1882, c. 69, that the grounds of objection to the Act in question are set forth at length in a report of the Minister of Justice dated the 15 Feb. 1883, and approved by Your Excellency in Council on the 6th March, 1883. “That in conformity with the Order in Council referred to, the observations of the Minister of Justice in regard to this Act were communicated to the Lieutenant-Governor of New Brunswick for the information of his Government. “That the attention of the Lieutenant-Governor has since heen called to the previous communications had with him on DISALLOWANCE OF PROVINCIAL ACTS. 177 the subject with a view to ascertain whether any legislation was Had during the last session of the General Assembly in regard to c. 69 of 1882, and a reply had been received from the Lieutenant-Governor enclosing a memorandum of his Executive Council passed in a Council on the 30th January ult, stating that no amendment has been made in the Act nor is it in contemplation to make any amendment thereto. “That there is no object any longer deferring action in this matter. “The Minister recommends that under these circumstances, and for the reasons communicated in the first mentioned report, that the Act of the General Assembly of the Province of New Brunswick, passed in the year 1882, c. 69, and entitled ‘an Act to incorporate the Fredericton and St Mary's Bridge Company’ be disallowed ; the Committee advise that the Act be disallowed accordingly.” The power of disallowance has been exercised in a Bills comparatively small number of cases, Of the 6000 Acts a passed by the provincial legislatures up to 1882 only 33 have lowed: been disallowed, viz. in Ontario 5, Quebec 2, Nova Scotia 5, Manitoba 7, British Columbia 12° That the Dominion government are conscious that the power of disallowance ought to be exercised with great care and caution is evidenced by the report of the Privy Council on the disallowance of certain Acts of Manitoba in 1885. “The Committee, whilst concurring in the report of the Minister of Justice and humbly advising your Excellency to disallow each and every of the said Acts, desire to record the expression of their constant anxiety that the action of the legislatures of the several provinces of the Dominion should be interfered with under the power of disallowance reserved to your Excellency in Council by the British North America Act 1867 as seldom as possible: but that, as in the case of these Acts, the declared policy of parliament adopted for 1 Can. Sess. Pap. 1882, No. 141. 178 THE GOVERNOR-GENERAL. the common weal is set at naught, and local legislation enacted leading indirectly, and directly too; to its frustration, the Committee of the Privy Council conceive that they are compelled by their duty to Parliament, humbly to advise your Excellency to use the power in question’.” Disputes It is in regard to Acts coming under the fourth class ig referred to in the report of Sir J. A. MacDonald above quoted, nee. viz. Acts affecting the interests of the Dominion generally, that difficulties have arisen and the governors veto has been challenged. In 1881 an Act of the Legislature of Ontario was disallowed on the ground that it violated private rights without making any adequate compensation. The Government of Ontario protested, and maintained, that no Act should be disallowed which it was legally competent for a provincial legislature to pass®. More recently the legislature of Manitoba passed several Acts authorizing the construction of railways in the province with the object of opening up communication with the United States, and these Acts were disallowed as conflicting with the settled policy of the Dominion embodied in the agreement with the Pacific Railway, viz. that for 20 years no line should be authorized to within 15 miles of latitude 49° or south of the Pacific Railway except such line runs south-west. The disallowance of an Act is notified in a form as follows :— Form of disallow-ANce. GoverNMENT House, OTrawa, 24 July, 1883. “ Present, His Excellency the Governor-General in Council. “Whereas the Lieutenant-Governor of the province of New Brunswick has reported that the Legislative Council and General Assembly of that province did, on the 6th April, 1882, pass an Act which has been transmitted. intituled as follows: t Can. Sess. Pap. 1885, No. 29, p. 44. 2 Can. Sess. Pap. 1882, No. 149 a. 3 Can. Sess. Pap. 1882, No. 166. and see post, ¢. xx. HIS RESPONSIBILITY. 179 “an Act to incorporate the Fredericton and St Mary's Bridge Company.” And whereas the said Act has been laid before the Governor-General in Council, together with a report from the acting Minister of Justice, recommending that the said Act should be disallowed, His Excellency the Governor General has thereupon this day been pleased by and with the advice of the Queen's Privy Council for Canada to declare his disallowance of the said Act and the same is disallowed accordingly. Whereof the Lieutenant-Governor of the Province of New Brunswick, and all other persons whom it may concern, are to take notice and govern themselves accordingly.” RESPONSIBILITY OF THE (GOVERNOR-GENERAL. The Governor-General is not responsible to the Dominion To the Parliament for either his conduct or his policy: all such Colony. responsibility must be assumed by his ministers under whose advice he is presumed to act. It would therefore be unconstitutional for a colonial legislature to pass a vote of censure upon a governor unless indeed as preliminary to an address to the Crown to remove him. The Governor-General is however responsible to the Tot od Crown, which may remove him, and to the Imperial Parliament, Parliawhich may pass judgment on his acts. In 1866 the Governor ™* of Victoria, Sir Charles Darling, was recalled on the ground that he had departed from a rigid adherence to the law, in collecting duties, in contracting a loan and in paying salaries without the sanction of law. The course pursued by the Colonial Secretary was fully approved by the Imperial Government? Though the Governor of a Colony represents the Sovereign To Law. for many purposes, and exercises all the prerogative powers conferred either on the office by letters patent or on himself by 1 Todd, p. 41. 2 Tb. p. 105. 199 [30 THE GOVERNOR-GENERAL. Vor Bpate statute, and by the Instructions accompanying his Commission, yet he does not enjoy the privilege of complete exemption from legal liability. For all acts done under and within the limits of the authority confided to him the representative of the Sovereign is protected, “because in doing them he is the servant of the Crown and is exercising its sovereign authority’;” and hence, where an action was brought against the Lord Lieutenant of Ireland for an alleged illegal seizure of property, the Irish Court of Common Pleas held, that as the act complained of was an act of state done by the Lord Lieutenant as such, the action would not lie? On this principle the Governor of a Colony may be Justified in case of rebellion, or exceptional disturbance, in resorting to a proclamation of martial law, ie. in assuming absolute power and exercising it by military force, but such power must be exercised bond fide for the purpose of maintaining the safety of the colony and with reasonable moderabion under the circumstances. Any abuse of such power will render the governor criminally and civilly liable®. ’ For Acts For acts which are beyond the authority confided to i Within him the Governor of a colony is responsible. “Such acts authority. though the Governor may assume to do them as Governor cannot be considered as done on behalf of the Crown nor to be in any proper sense acts of State. When questions of the kind arise it must necessarily be within the province of municipal Courts to determine the true character of the acts done by a Governor, though it may be that when it is established that the particular act in question is really an act of state policy done under the authority of the Crown, the defence is complete and the Court can take no further cognizance of £47” L Per P. C. in Musgrave v. Pulido, 5 App. Cas. 102, 49 L. J, P. C. 20. * Luby v. Lord Wodehouse, 17 Ir. Com. L. R. 618, ? See Wright v. Fitzgerald, 27 St. Tr. 765. Report of R. v. Eyre by Finlason: Broom’s Constitutional Law, 2nd Ed. p. 653. 4 P. C. in Musarave v. Pulido, 5 App. Cas. 102, 49 L.. J. P. C. 20. HIS RESPONSIBILITY. 181 For acts not within his authority® civil or criminal® proceedings may be taken. By the 11 & 12 Will. IIL ec. 12, criminal proceedings are to be tried in the Court of King’s Bench. In the following chapter the circumstances under which the Governor-General is bound in exercising his legal powers to follow the advice of his Ministers will be more fully discrased U Hill v. Bigge, 8 Moo. P. C. 465. Fabrigas v. Mostyn, 20 St. Tr. 81; Cowper, 161. T R.v. Wall. 28 St. Tr. 51. CHAPTER XVI. THE Privy COUNCIL. Number. THE B. N. A. Act, s. 11 provides for the appointment of a Council to aid and advise the Governor-General in the government of Canada. This Council corresponds to the Cabinet in England and is styled the Queen’s Privy Council for Canada. A distinction is growing up in Canada between Privy Councillors, who are members of the Cabinet and Honorary Privy Councillors, who are not in the Cabinet, inasmuch as by command of the Queen, a Privy Councillor after he retires from office is entitled to be termed “ Honourable ” for life. Strictly speaking however these “ honorary” members are not in law members of the Council, The Privy Council in 1887 consisted of 14 members, viz, : The President of the Council. The Secretary of State. The Minister of the Interior. The Minister of Justice. The Minister of Marine and Fisheries. The Postmaster-General. The Minister of Public Works The Minister of Railways and Canals. The Minister of Finance. The Minister of Customs. The Minister of Militia and Defence. The Minister of Agriculture. The Minister of Inland Revenue. One Minister without portfolio. THE PRIVY COUNCIL. 188 In 1887 Acts’ were passed by the Canadian Parliament for the re-organization of certain departments. Under these Acts a department of Trade and Commerce presided over by a minister is to be organized : the departments of Customs and Inland Revenue are to be consolidated: and power is given to appoint a Solicitor-General. The members of the Council are chosen by the Governor- How General and may be removed by him®. No legal restrictions chosen. are placed on his choice, and the number of the Council is not limited. In practice the Governor-General in appointing Privy Councillors is guided by several important constitutional rules. The members chosen are selected from that party which possesses the confidence of the legislature, more especially of the House of Commons. The leading member of that party is requested by the Governor-General to form a ministry, and the Governor-General accepts as members of the Council those selected by him. The councillors usually have seats in the Upper or Lower House but the majority belong to the House of Commons. There are some points in which the constitutional practice is different in Canada from what it is in England. The claims of the several provinces to representation in the Cabinet are sometimes recognised, and in the first Privy Council five representatives were assigned to Ontario, four to Quebec, two to Nova Scotia and two to New Brunswick. Again the Attorney-General acts as Minister of Justice The Atand sits in the Cabinet. Arguments have been brought be forward in Canada and in other colonies to shew that the office ought to be non-political’, but the necessity of having some one in the Cabinet having a special knowledge -of law and of the Constitution has been so much felt in Canada, that the Attorney-General is not merely retained in the 50 & 51 Vie. 10. Ib. ec. 11. 2 B. N. A. Act, 8. 11. 3 Todd, p. 45. 184 THE PRIVY COUNCIL. Cabinet, but is often called upon to take the position of premier. As a rule he does not take private practice. To each member of the Privy Council it is usual to assign the administration of a department. But in Canada as in England there may be a minister not holding a portfolio. All the heads of Departments are not necessarily members of the Cabinet. In 1867 the number of Privy Councillors was thirteen, but since then the number has frequently varied >wing to re-organization of departments. Each Minister receives a salary of 7000 dollars per annum, and the member of the Council who holds the position of Prime Minister receives an additional sum of 1000 dollars per annum’, Vacation On being appointed a Privy Councillor a Senator does not im vacate his seat, but a member of the House of Commons ment. does so though he is eligible for re-election? In its first session the Dominion Parliament, in order to preserve the independence of its members, re-enacted a previous act’, disqualifying all persons holding any office under the Crown to which a salary was attached from sitting in either house. Members accepting seats in the Council did not come under this rule, but they were required to be reelected’. A further act was passed in 1878 in which the same principle was laid down’. The eligibility for re-election of a member of the Privy Council was affirmed, and it was provided in general terms that nothing in the statute should render ineligible any person holding any Cabinet office, or any office thereafter to be created to be held by a member of the Privy Council and entitling him to be a minister of the Crown, or should disqualify him from’ sitting or voting in the House of Commons, provided he be elected while holding such office’. A minister who resigns one office and accepts another Salary, IR. 8. C.c. 4,8 8. : 2R. 8. Ce 11,89. } 20 Vie. c. 22. 4 31 Vie. ¢. 25. 5 7 Vie. c. 65. t 41 Vie. ¢. 5. 7 See R.S. C.c. 11.8. 9. ITS FUNCTIONS. 185 within one month after his resignation does not vacate his seat, unless the ministry to which he belonged has resigned and a new administration has been formed. It is now the rule that, on a change of ministry, all Resign. outgoing ministers should resign their seats or be removed, as ation. it is not deemed expedient that retiring ministers should retain a seat in the Council as in England, but ex-ministers have a special precedence within the Dominion and are styled “ Honourable” for life’, FUNCTIONS OF THE COUNCIL. The functions of the Privy Council as regards the Governor-General are governed by two leading ideas. First: In all prerogative matters and matters in which Imperial interests are concerned, the Governor-General, though bound to pay every consideration to the advice of his Ministers, is not bound to follow it. Secondly: In all other matters the Governor-General is expected to follow and adopt their advice. 1. As regards Legislation. (1) Initiation of Legislation. Two classes of legislation Legislarequire to be distinguished, (a) Money bills, (b) Ordinary ve re. legislation. (a) Bills, involving the imposition of a tax or the Money appropriation of the revenues, require to be recommended to Ts the House of Commons by the Governor-General’, and in exercising that statutory power the Governor-General adopts the constitutional practice of consulting his ministry. (0) Though any bill, except a money bill, may bé intro- Other duced into either House by any member, in Canada, as in Bills. England, the Executive controls legislation. By the standing { Todd, pp. 42, 231. 2 B. N. A, Act 1867, s. 54. 186 THE PRIVY COUNCIL. orders, Government measures take precedence on certain days and when necessary the Government take the whole time of the House for their own bills. The result is that Government bills have a much better chance of becoming law than have bills of private members. For all Government bills the Ministry is responsible. A (2) Summoning, proroguing, and dissolving Parliament. ing Parlia- he Dominion Parliament is required to meet every year’; in appointing the time of meeting the Governor-General is guided by the advice of his Ministers. The prorogation or dissolution of Parliament being an exercise of prerogative power, the Governor-General is not bound to follow their advice. In discharging the responsibility of deciding in a particular case whether a dissolution should be granted, the Governor of a Colony “will of course pay the greatest attention to any representations that may be made to him by those who at the time are his constitutional advisers: but if he should feel himself bound to take the responsibility of not following his ministers’ recommendation there can, I apprehend, be no doubt that both law and practice empower him to lo so?” Previous to the Confederation in 1858 the Governor of the Province of Canada declined to grant a dissolution at the request of the ministry on the grounds that a new election had lately taken place, that some measures of great importance required to be passed, and that an election would be a great inconvenience to the Province’ Lord Mulgrave, Governor of Nova Scotia, refused a dissolution in 1860, as he thought it was neither expedient nor for the public convenience that a dissolution should take place the year after a veneral election? LB, N. A. Act, 5. 20. 2 Despatch of Sir M. Hicks Beach to Governor of New Zealand, quoted in Todd, p. 547. 3 Todd, p. 528. 4+ Ib. p. 537. ITS FUNCTIONS. 187 (8) Assent to Bills. The position of the Ministry in regard fom to to the Governor-General’s assent to bills has been already referred to. The Governor-General is bound, as representing the Crown, to exercise his own discretion unfettered by any advice he may receive from his Ministers, though in practice he follows such advice. 2. As regards the Administration. The Ministry, as we have pointed out, is, unlike the Eng- ATS. lish Cabinet, known to the law. The duty of the Council is Powers. stated in the Act of Union to be to “aid and advise in the government of Canada.” It “aids” in the government by each member taking charge of the administration of a department, and it “advises” by suggesting to the Governor-General the course he should pursue under given circumstances. The Union Act and Instructions specify certain matters Powers of that are to be transacted by the Governor-General in Council as or after receiving the advice of the Council, viz :— Cognil. 1. The appointment of Lieutenant-Governors of Provinces®, 2. The exercise of the prerogative of pardon? 8. The exercise of all powers which at the Union were vested in the Governors of the Provinces with the advice of the resvective Executive Councils thereof®. 4. The hearing of any Appeal under section 93 regarding the rights and privileges of the Protestant or Roman Catholic minority of the Queen’s Subjects in a Province in relation to Education. The administrative powers conferred on the Governor in Council by Canadian statutes are very numerous. Such powers are exercised by Orders in Council published in the Canadian Gazette and printed as a rule with the statutes for the year. 1B. N. A. Act, 8. 58. 3B N. A. Act. g, 12. 188 THE PRIVY COUNCIL. In all matters relating to administration, such as routine business, the appointment of officials or the superintendence of state departments, the Governor-General when his concurrence 1s desired is expected to act on the advice of his Ministers. 3. As regards the Provinces. Privy The relation of the Privy Council to the Provinces is of Jownell importance as regards Provinces. (1) the appointment and removal of Provincial Governor, and (2) the disallowance of Provincial bills. By the B. N. A. Act, s. 58 the Lieutenant Governors of the Provinces are to be appointed by the Governor-General in Council, but as regards their tenure of office the 59th section states that “a Lieutenant-Governor shall hold office during the pleasure of the Governor-General” without making any reference to the Council, though the cause of his removal is to be communicated to the Senate and House of Commons. The Letellier case, as has been stated, decided that the Governor-General is bound to follow the advice of his ministers as to the removal of a Lieutenant-Governor. Disallow- As regards the disallowance of Provincial Acts the effect asst a1 of sections 56 and 90 is to vest the power of disallowance in Acts. the Governor-General in Council. Though in practice the Governor-General invariably decides the allowance or disallowance on the advice of his ministers, the right of acting independently has been claimed for him by at least two Colonial Secretaries. In 1873 the Earl of Kimberley in a despatch referring to the proposed disallowance of certain New Brunswick Acts, said “this is a matter in which you must act on your own individual discretion and on which you cannot be guided by the advice of your responsible ministers.” The Earl of Carnarvon, who succeeded Lord Kimberley as Colonial Secretary, took a similar view. The Canadian ministrv. on the RESPONSIBILITY. 189 other hand, strongly maintained that the power in question was vested in the “Governor-General in Council,” and that his ministers were responsible to the Dominion Parliament for the exercise of the power. MEegTINGS OF THE COUNCIL. In the early days of responsible government in Canada Meetings the Governor used to debate with his ministers in Council, of Gouest but this irregular proceeding was soon abandoned and the ministers now discuss all questions of policy in private® “The practice in Canada,” says Mr Todd? «for a number of years has been that the business in Council is done in the absence of the Governor. On very exceptional occasions the Governor .may preside: but these would occur only ab intervals of years and would probably be for the purpose of taking a formal decision on some extraordinary matter and not for deliberation thereon. The mode in which business is done is by report to the Governor of the recommendations of the Council sitting as a Committee, sent to the Governor for his consideration, discussed when necessary between the Governor and the premier and made operative by being marked ‘approved’ by the Governor.” RESPONSIBILITY. Ministers are responsible to the Crown and to the Canadian Responsi. Parliament to the same extent and in the same manner nn as English ministers are to the Crown and to the English Parliament. “The responsibility of the administration for all Acts of Government is absolute and unqualified. But it is essentially a responsibility to the legislature and especially to the popular chamber*” I For a summary of discussion, see Todd, 335. * Todd, p. 37. 3 Tb. ' Todd, p. 89. CHAPTER XVIL THE DOMINION ADMINISTRATION. THE Administration and Government is carried on by means of fifteen departments of State exclusive of the office of the High Commissioner. All the departments are presided over by a Cabinet Minister, but two of them, viz. that charged with Public Printing and Stationery and the department of [ndian affairs, are placed each under the charge of a Minister who is at the head of some other department. OFFICERS. HOW APPOINTED. Appoint. ment of Dffcers. Civil Service Act. The Head of the Department is assisted in his duties by a Deputy Head, a chief clerk, clerks, messengers, and other employés. The number of officers and employés required for the working of a department is determined by the Governor-General in Council, but a clerkship cannot be astablished unless the Deputy Head reports that such an officer is necessary for the proper performance of the duties of the department, and the Head concurs in such report, and the salary has been voted by Parliament. The appointment of all departmental officers and servants other than the Head is regulated by the Civil Service Act! The Civil Service constituted by that Act includes all persons employed in the several departments of the Execu-1 R. S.C. ec. 17. THE DOMINION ADMINISTRATION. 191 tive Government of Canada and in the office of the Auditor-General, other than Heads of Departments and persons employed in the North-West Territories. The Deputy Head is appointed by the Governor-General Depaty in Council and holds office during pleasure, but if a Deputy ’ Head be removed the reasons for such removal must be laid before Parliament within the first fifteen days of the next session’, The duties of the Deputy Head are to oversee and direct, subject to the directions of the Minister, the officers, clerks and employés in the department and to have the general control of the business”. All appointments below that of Deputy Head in any Other department are as a rule made after an examination. wa Two kinds of examinations are held: (1) The “civil service preliminary examination” which qualifies for the lower appointments such as messenger, porter, &ec. (2) The “qualifying examination” which qualifies for a third-class clerkship. Certain persons may be appointed to offices without Where no examination, viz. city postmasters: inspectors, collectors and yo preventive officers in the customs: inspectors of weights and quired. measures: deputy collectors and preventive officers in the Inland Revenue®. When a vacancy occurs in any department, the Head selects from the list of qualified candidates a person fitted for the vacant place. The person selected serves a probationary term of six months, after which period, if it appear that he is competent to discharge the duties of the office, he receives a permanent appointment. If rejected during the probationary period another is chosen in his stead®. Promotion as a rule takes place after a special examina- Drona 1R. 8. C.c. 17s. 11. 3 Ib. s. 37. 2 Ib. s. 13. i Ib. 8. 35. 192 THE DOMINION ADMINISTRATION. tion in subjects best adapted to test the fitness of the candidates for the vacant office. The Head of the Department in selecting is to choose “the person whom he considers best fitted for the office having due reference to any special duties incident to the office, to the qualifications and fitness shown by the candidates respectively during their examinason and to the record of their previous conduct in the service.” In the case of certain professional men such as barristers, attorneys, architects, actuaries, land surveyors, draughtsmen, engineers, military or civil officers of artillery in the Militia Department and graduates of a Royal Military College, the examination may be dispensed with on a report from the Deputy Head concurred in by the Head". Probation. ~~ Every promotion is subject to not less than six months orobation and at any time during the first year the Head nay reject the person promoted”. The Deputy Head and all officers, chief clerks, clerks, messengers, sorters and packers are required to take the oath of allegiance as well as the following oath. “I (A. B.) solemnly and sincerely swear that I will faithfully and honestly fulfil the duties which devolve upon me as ——— and that I will not ask, or receive, any sum of money, services, recompense, matter, or thing whatsoever directly or indirectly in return for what I have done or may do in the discharge of any of the duties of my said office except my salary or what may be allowed me by law or by srder of the Governor in Council.” The clerk of the Privy Council and all clerks under him and any officer of whom the Governor-General requires the same take the above oath with the following addition: — “And that I will not without due authority in that behalf disclose or make known any matter or thing which comes to my knowledge by reason of my employment as ———.” 1 R S.C.e. 17, 8. 4. 2 Th. 8. 48. Oath of Vice. DEPARTMENT OF SECRETARY OF STATE. 193 The Departments of State are at present as follows, but Departprovision has been made by two recent Acts, 50 and 51 Vie. So ot ce. 10 and 11, for consolidating the Departments of Customs and of Inland Revenue in one, to be placed under the Minister of Trade and Commerce or under a Minister of Finance :— 1. 2. 3. 4. 3 5. 7 8. 9. 10. 11. 12. 18. 14. 15 Secretary of State. Public Printing and Stationery. Interior. Inland Revenue, Customs. Finance. Public Works. Railways and Canals. Post-Office. Justice. Agriculture. Marine and Fisheries Militia and Defence. Indian Affairs. High Commissioner. |. DEPARTMENT OF SECRETARY OF STATE. This department was constituted by the 81 Vic. ec. 42. It is presided over by the Secretary of State, who is assisted in the discharge of his duties by an Under-Secretary. The department has charge of the state correspondence Repl and keeps all state records and papers not specially trans- abies. ferred to other departments. A special branch of the department called the Register Register Branch is charged with the registration of all writs of summons, proclamations, commissions, letters patent, letters patent of land, writs and other instruments and documents issued under the Great Seal, and all bonds, warrants of 2? 194 THE DOMINION ADMINISTRATION, extradition, warrants for the removal of prisoners, leases, releases, deeds of sale, surrenders and all other instruments requiring registration, The Secretary of State is Registrar-General, but the Deputy Registrar may sign and certify the registration of all instruments and documents required to be registered and of copies thereof 2. DEPARTMENT oF PUBLIC PRINTING AND STATIONERY. Duties Printing. Up to 1866 the supplying of stationery to the different departments of state fell within the duties of the Secretary of State, but by the 49 Vic. c. 22 a new department was constituted to deal specially with printing and the supply of stationery. The department is presided over by the Secretary of State or by such other member of the Privy Council as the Governor-General in Council shall direct. The Minister is assisted in his duties by the Queen’s Printer, who is Deputy Head, by a Superintendent of printing and by a Superintendent of stationery. The following matters must always be transacted through this department :—-1. Printing, stereotyping or electrotyping, lithography or binding work, required for the use of the Senate, the House of Commons, and the several departments of state. 2. The purchase and distribution of all paper, books and all other articles of stationery. 3. The distribution and sale of all books or publications issued by order of either House or of any department. 4. The auditing of all accounts for advertising required for the public service. All printing, electrotyping, stereotyping, lithography and binding required for the service of the Parliament or Government of Canada is done at the Government Printing- DEPARTMENT OF THE INTERIOR. 195 office at Ottawa under the direction of the Superintendent of printing appointed by the Governor-General in Council. A branch of the department called the Stationery Office Station is under the management of the Superintendent of stationery, _yan official appointed by the Governor-General in Council. He is authorized to purchase all paper or stationery required for printing, or for Parliament, or for the departments. In the case of paper necessary for Parliamentary printing, or for printing either the Canada Gazette or the departmental reports, purchases are made in accordance with contracts entered into, after tenders have been called for. In other cases the purchases are made by the Superintendent after approval by the Minister or the Queen’s Printer. The Superintendent of stationery supplies all articles of stationery to the different departments of state upon requisition signed by the Deputy Head, and to either House of Parliament upon the requisition of a Clerk of the House. He also has charge of both the sale of all official publications and the distribution of all public documents and papers. All moneys received by him are paid over to the Consolidated Fund. 3. DEPARTMENT OF THE INTERIOR. In 1879 a portion of the duties, up to that year performed by the Department of Public Works, was assigned to a new department called the Department of the Interior’, to be presided over by the Minister of the Interior. The statutory duties assigned to the department are : — (1) The management and control of the affairs of the Duties. North-West Territories. The grant of a constitution to these Territories has to a large extent relieved the department of this duty. (2) The control and management of all Crown lands being the property of the Dominion, including those known as ordnance and admiralty lands, and all other public lands 1 386 Vie. ec. 4. | 3 — :) 196 THE DOMINION ADMINISTRATION. excepting (1) those either under the control of the Department of Public Works or that of Militia and Defence, and (2) Marine Hospitals and Lighthouses, and lands connected sherewith, and (8) St Paul's, Sable and Portage Islands. Geological ~~ A Geological and Natural History Survey Office is at-STE tached to the department’. This branch is in charge of the Director of the Geological Survey, who is assisted by the necessary officials. The objects of the Survey are “to elucidate the geology and mineralogy of Canada, and to make a full and scientific examination of the various strata, soils, ores, coals, oils, and mineral waters and of its recent fauna and flora, so as to afford to the mining, metallurgical and other interests of the country correct and full information as 50 its character and resources.” Duties of The persons in charge of the Survey are required Doman 1. To collect, classify and arrange such specimens as are necessary to ensure a complete and exact knowledge of the mineralogical resources of the several provinces and territories of Canada; to carry on paleontological investigations; bo study and report upon the fauna and flora of Canada, and to make such other researches as will best tend to ensure the carrying into effect the object and purpose of the Act. 2. To collect the necessary materials for a Canadian Museum of Natural History, Mineralogy and Geology. 3. To report from time to time their proceedings, and to farnish proper maps and diagrams, drawings and collections of specimens to illustrate the same. Yearly Every year the Director is required to make a full report Report. 46 the Minister of the proceedings and work of the Survey during the preceding year. 4 DEPARTMENT OF INLAND REVENUE. This department was constituted by the 81 Vie. c. 49. It ie presided over by the Minister of Inland Revenue, who IR. 8S. C.. e. 23. DEPARTMENT OF CUSTOMS. 197 is assisted by (1) a commissioner and an assistant commissioner, who hold office during pleasure and perform such duties as may be assigned to them by the Governor-General or by the Minister’, and (2) certain other officers appointed by the Governor-General. The duties assigned to the department by statute are de- Duties. fined to be :— (1) The control and management of a. the collection of all duties of Excise, b. the collection of stamp duties and the preparation and issue of stamps and stamped paper, except postage stamps, e. all internal taxes, d. standard weights and measures. (2) The administration of the laws affecting the cutting and measurement of timber, masts, spars, deals, staves, and other articles of a like nature, and the collection of slidage and boomage dues. (8) The collection of bridge and ferry tolls and rents, and of tolls on the public canals and the control of matters incident thereto. Provision has been made for the transfer of this department to the newly-created Department of Trade and Commerce? 5. DEPARTMENT OF CUSTOMS. This department was established by the 81 Vic. c. 43, and is presided over by the Minister of Customs. The Minister is assisted by a commissioner and an assistant commissioner, who have such powers and perform such duties as may be assigned to them by the Governor-General or by the Minister. The department has the control and management of Duties. the collection of customs, duties and all matters incident 1 R. 8.C., c. 34. 2 See ante, p. 198. 198 ‘THE DOMINION ADMINISTRATION. thereto, and of the officers and persons employed in that service®. By the 50 and 51 Vic. c. 11 this department is to be transferred to the Minister of Trade and Commerce or to the Minister of Finance? 6. DEPARTMENT OF FINANCE. This department was constituted by the 32 and 33 Vic. c. 4, and has the supervision, control and direction of all matters relating to such financial affairs, public accounts, revenue and expenditure of the Dominion, as are not or in so far as they are not by law or by order of the Governor in Council assigned to any other department of the Civil Service, as well as such other duties as may be from time to time assigned to it by the Governor in Council. By a subsequent Act® the office of Receiver-General was abolished and the duties of that official were transferred to she Minister of Finance. Two important branches of the department are the Treasury Board and the Audit Office. joe y The Treasury Board, formed of the Minister of Finance, Board. and five Ministers nominated by the Governor in Council? acts as a committee of the Privy Council in all matters of finance which are referred to it by the Council or to which it thinks it necessary to call the attention of the Council. It is empowered to direct that books and accounts be kept by any officer engaged in the revenue department, and to prescribe how accounts are to be kept by the various branches of the public service”. It directs how each department is to prepare its appropriation account. ad The Audit Office is under the charge of the Auditor-General, who is appointed by the Governor-General under the lL R. 8. C. 1886, c. 82, 5. 5. 2 See ante, p. 193. 3 42 Vie. c. 7. + 50 and 51 Vie. e. 13, SR.S. 0. ec 99 DEPARTMENT OF FINANCE. 199 Creat Seal. The Auditor-General’s assent is required before any cheque can be issued for the payment of public moneys. He is required to audit the state accounts every year, and may be called on by the Minister of Finance to audit the accounts forming the Consolidated Revenue Fund, the accounts current with the banks and fiscal agents of Canada, the accounts relating to the issue of loans, the accounts with the Indian tribes, the accounts with the provinces, and the accounts with the Government of the United Kingdom. The Deputy of the Minister keeps the accounts with the Duties of financial agents of Canada in England, and with the bank or i ie banks receiving or paying public moneys, and the accounts of moneys paid for interest on Canadian Stock, debentures or other Canadian securities’. He also classifies all appropriations of public moneys in the appropriation book, and enters the amount drawn on account of such appropriation, and generally keeps the public accounts of Canada. The ordinary revenue of Canada is derived from various The sources, and may be classified under the heads of (1) Taxation, Revenge. (2) Other sources. The revenue raised by taxation consists solely of Customs and Excise duties, that from other sources consists of money derived from the post-office, Government railways and works, interest on investments &ec. The income in the vear 1887—8 amounted to 85.908.463 dollars. Taxation. Other sources. Customs ’ Excise Public Works Dominion Lands Post-office Various $ 22,105,926 6,071,486 98,177,412 3,556,100 217,083 2,379,241 1,578,627 35.908.463 The above revenue forms the Consolidated Fund out of Ll BR. S.C. ec 28, 8. 5, 200 THE DOMINION ADMINISTRATION. which is paid the ordinary expenditure. The charges on this Fund in the vear 1887—S8 were as follows — Charges for the Public Debt Ordinary Expenditure Collection of Revenue P 11,105,981 16,822,749 8,789,764 36.718.495 In addition to the above revenue and expenditure the Dominion receives and expends a large amount of moneys every year. This may be illustrated by the following table for the year 1887—8. Receipts. Expenditure. Ordinary Expendi- # ture 36,718,495 Redemption of Public Debt 3,185,726 Savings Banks 12,521,064 Railway Subsidies 1,027,041 Investments 5,200,769 Trust Funds(Indian) 276,230 Province Accounts 115,775 Railways and Canals 2,798,704 Public Works 963,778 Transfers to Consolidated Fund 2,881,127 Miscellaneous 2,339,206 © 68.027,915 Payments When a sum of money is granted to Her Majesty by Moneys. resolution of the House of Commons or by Act of Parliament, the Governor-General from time to time under his sign manual, countersigned by a member of the Treasury Board, authorizes and requires the Minister of Finance to issue out of the moneys appropriated for defraying the expense of such services and in the hands of the Receiver-General, the sums required from time to time not exceeding the amount of the sums so voted LR, 8.C.,c 29, 5. 99, DEPARTMENT OF FINANCE. 201 The Minister of Finance then causes to be issued in favour of the Deputy Head or other person connected with the departments or service charged with the expenditure credits on some bank authorized to receive the public moneys. A statement of moneys drawn under such credits and the cheques paid by the banks is furnished to the Auditor-General, and the Minister of Finance and the Auditor-General if satisfied of the correctness of the statement, may request the Minister of Finance to cause cheques to be prepared to reimburse the bank for the advances: such cheques to be signed by the Minister of Finance and countersigned by the Auditor-General. The Auditor-General must always satisfy himself, that no cheque issues for the payment of any public money, for which there is no direct parliamentary appropriation, and he is required to report to the Governor in Council any case, in which money is expended for any purpose, for which there is no legislative authority™ In three exceptional cases it is provided that a cheque Excep. may issue without the certificate of the Auditor-General that Smal there is parliamentary authority for the expenditure :— 1. Where a Law-officer of the Crown gives a written opinion that there is authority to issue the cheque. 2. Where special unforeseen cases during the recess of Parliament require expenditure for the public good, in which cases the Qovernor-General in Council issues a special warrant signed by himself for the issue of the amount required. 8. Where the Treasury Board after receiving a report from the Auditor-General and the Deputy Minister of Finance overrides the objection. In all the above cases a report thereon must be laid before Parliament by the Auditor-General. If the moneys are required for work performed or materials i Th. 8. 80. 2 Th. 5. 31. 202 THE DOMINION ADMINISTRATION. Consolidated Fund. Accounts. supplied, no payment is to be authorized until the person in charge of such work or materials has certified to the Anditor-General that the work has been performed or the materials supplied®. In every case the moneys can be paid only out of the sum appropriated by Parliament for the specific purpose mentioned. All the moneys and revenue over which the Parliament of Canada has power of appropriation form the Consolidated Fund ; and it has been provided by statute that such moneys are to be appropriated in the following order:—(1) expenses of collection, (2) the interest on the public debt, (3) the salary of the Governor-General, (4) moneys borrowed in connexion with the Pacific Railway, (5) moneys borrowed in connexion with the Hudson Bay Co. and Rupert's Land, (6) moneys borrowed for Public Works, (7) salaries of the judges. Each department of state is required to prepare an account of the moneys appropriated for the expenses of the department and of the moneys actually expended. After such account is audited by the Deputy Head or other person charged with the expenditure, it is transmitted to the Auditor-General, who again audits the account before it is laid before Parliament? In addition to the above accounts, the Minister of Finance prepares an account of all sums expended out of the Consolidated Fund for the financial year which ends on the 30th June: such account with the report of the Auditor-General thereon is laid before Parliament? 7. DEPARTMENT oF PusLic WORKS. This department was constituted by the 81 Vic. c. 52. In 1879 some of its functions were transferred to the newlycreated Department of the Interior. It is now regulated by the Public Works Act*. 1 R.8.C., s. 38, 2 Ib. e. 29. 3 Ib. 4 Th. e. 36. DEPARTMENT OF PUBLIC WORKS. 203 The Minister of Public Works is assisted by a Deputy, a Secretary, an Engineer and other officials. The department has charge of the construction, manage- Duties. ment and direction of all public works and property, except those transferred to a province or municipality or placed ander some other department. No expenditure can be incurred without the sanction of Parliament except for repairs and alterations required by the necessities of the public service. As a rule tenders are to be invited for the execution of all works, and security is to be taken for the due performance of every contract. The power to impose tolls on public works, to frame regulations for the use and protection of public buildings, and bo transfer public roads and bridges to the local authorities, is vested in the Governor in Council, and not in the Minister. The Secretary has the following statutory duties to perform*:— To keep separate accounts of the moneys appropriated for, and expended on, each public work. To submit accounts to be audited. To take charge of all plans, contracts. estimates, documents, and titles. To keep proper accounts with each contractor employed. To see all contracts properly drawn out and executed. To prepare all certificates upon which a warrant is to issue. To keep minutes of all proceedings of the department. To prepare reports and to conduct under the direction of the Minister the correspondence of the department. The Engineer is required® to prepare maps, plans and Engineer. estimates for all public works to be constructed, altered or repaired ; to report for the information of the Minister on any question relating to any such public work; to examine and 1 Ib. 8. 5. 2 Ib, sa. 6. The Secretary. 204 THE DOMINION ADMINISTRATION. revise plans, estimates and recommendations of other engineers, architects, and officers touching any public work, and generally to advise the Minister on all engineering or architectural questions affecting any work. Official By the Expropriation Act! very extensive powers are bo given to the Minister to take public lands required for any public work. The compensation to be paid for such land is fixed bv official arbitrators appointed by the Governor? 3. DEPARTMENT OF RAILWAYS AND CANALS. The Department of Railways and Canals was constituted by the 42 Vic. ¢. 7. The Minister of Railways and Canals oresides over the department. The Minister of Railways and Canals has the management, charge and direction of all Government railways and of all canals, and of works or property appertaining or incident thereto. The powers and duties of the Minister in respect to railways and canals are practically the same as those of the Minister of Public Works regarding public works. 0. DEPARTMENT OF THE PosST-OFFICE. Officers. The Post Master-General. This department was established by the 81 Vie. c. 10, bus tb is now regulated by the Post-Office Act®. Previous to the Confederation each province managed its own postal system. The chief officers of the department are the Postmaster-General, the Deputy, and the Inspectors, who are all appointed by the Governor-General. Postmasters in cities and sowns having permanent salaries are also appointed by the Governor-General, all other postmasters are appointed by the Postmaster-General. The powers of the Postmaster-General are very wide and 1 R.8.C.,c 39. 2 Ib. c; 40, 3 Tb. ec. 385. DEPARTMENT OF THE POST-OFFICE. 205 varied. He is authorized by statute’ to exercise the following powers :— 1. to establish and close post-offices and post routes, 2. to appoint postmasters, other than those appointed by the Governor-General, and other officers and servants, and to remove or suspend any postmaster or other officer or servant, 3. to enter into and enforce mail contracts, 4 to make regulations as to what is mailable matter; to restrict the weight and dimensions of letters and packets sent by post; and to prevent the sending of explosive, dangerous, contraband or improper articles, or obscene or immoral publications, 5. to establish rates of postage for mailable matter not being letters, and to prescribe the conditions on which such articles will be received, 6. to prepare and distribute postage stamps and stamped envelopes, 7. to make postal arrangements with other countries, 8. to make arrangements for refunding postage on H. M. Military or Naval Service, 9. to make regulations regarding money orders, 10. to make regulations regarding registered letters, 11. to decide what is to be decreed a letter, 12. to sue for money due, 13. to provide street boxes, 14. to grant licenses for sale of stamps, 15. to impose pecuniary penalties not exceeding $200 for contravention of regulations, 16. generally to make regulations for carrying on the work of the department. Tn addition to the above powers relating to the ordinary business of a post-office the Postmaster-General has also power to establish a parcel post’, and with the consent of the Governor-General a system of post-office savings banks’. 1 1b, 8. 9. 2 Ib. s. 41. 3 Th. 5. 63. Inspectors. Postal Union. 206 THE DOMINION ADMINISTRATION. The statutory duties of the Inspectors are! to a. superintend the performance of the mail service, b. instruct new postmasters in their duties, c. keep postmasters to their duty of rendering accounts and paying over moneys, inspect every post-office from time to time, inquire into complaints and suspected cases of misconduct, J. and generally to do all they are required to do by the Postmaster-General. The Dominion entered into a postal agreement with the United States in 1875 by which a common rate of postage was adopted for the two countries, each country to return all money collected. At the second Congress of the General Postal Union held at Paris in May 1878, Canada was admitted into the Postal Union, The Postal Union was in 1874 replaced by the Universal Postal Union formed at Berne, which now embraces all British Possessions except the Australian Colonies and South Africa. 10. DEPARTMENT OF JUSTICE. Duties of Minister a8 such By the 81 Vic. c. 89 a Department of Justice was constituted to be presided over by the Minister of J ustice, who for the time being is to be ex officio Her Majesty's Attorney-General for Canada. The Governor-General has power to appoint a Deputy and, subject to the Civil Service Acts, to appoint clerks and other officers in the department. A recent Act 50 and 51 Vie. c. 14 has made provision for the appointment of a Solicitor-General to assist the Minister of Justice, The Minister of Justice as such is the official legal adviser of the Government, and is required to advise the Crown upon all matters referred to him by the Crown. It is his duty to see that the administration of public affairs is in accordance 1 R. S.C, s 14. DEPARTMENT OF JUSTICE. 207 with law, and to superintend all matters connected with the administration of justice in Canada and not falling within the jurisdiction of any province. He advises upon all legislative acts and proceedings of the Legislatures of the different provinces of Canada, and is charged with all duties assigned to him by the Governor-General in Council’. As Attorney-General his powers and duties are as fol- Duties as Wier i eneral. (1) He is entrusted with the powers and charged with the duties, which by law or usage belong to the office of Attorney-General in England so far as the same powers and duties are applicable to Canada. (2) He is entrusted with the powers and duties that by the laws of the several provinces belonged to the office of Attorney-General in each province up to the time when the British North America Act 1867 came into force, which laws under the provisions of such Act are administered and sarried into effect by the Government of the Dominion. (8) He has to advise the Heads of the several Departments of the Government upon all matters of law connected with such departments. (4) He is charged with the settlement and approval of all instruments issued under the Great Seal of Canada. (5) He has the superintendence of penitentiaries and of the prison system of the Dominion. (6) He has the regulation and conduct of all litigation for or against either the Crown or any public department in respect of any subjects within the authority and jurisdiction of the Dominion. (7) He is charged generally with such other duties as may at any time be assigned to him by the Governor-General. A police force has been constituted for the North-West North-. . ' ws West Territories, and at the present time it is under the control Mounted and management of the Minister of Justice. The force is Bolioe, IR SC. ec 2l. 208 THE DOMINION ADMINISTRATION. limited to 1000 men, and all appointments are made by the Governor in Council. It is under the command of a commissioner and assistant commissioners, who exercise all the powers of stipendiary magistrates. The Lieutenant-Governor of Keewatin has the local disposition of the force in that district subject to any order of the Governor-General, and the Governor-General is authorised to make arrangements with any province for the employment of the force in such provincel. 11. DEPARTMENT OF AGRICULTURE AND STATISTICS. This department was constituted by the 81 Vie. c. 53 and is presided over by the Minister of Agriculture. He is assisted in carrying on the work of the department by a Deputy and a staff of officers and clerks appointed by the Governor-General. The The duties and powers of the Minister extend to the Minister. ovecution of the laws of the Parliament of Canada and of the Orders of the Governor in Council relating as well to the following subjects as to the direction of all public bodies, officers and servants employed in the execution of such laws and orders®:— I. Agriculture. Immigration and Emigration. Public Health and Quarantine. Marine and Emigrant Hospitals of Quebec. 5. Arts and Manufactures. 6. Census Statistics and the registration of Statistics. 7. Patents of Invention®, 8. Copyright®. 9. Industrial Designs and Trade-marks®. 10. Experimental Farm stations ! See R. 8. C., ec. 45. 2 Ib. c. 24, ? By the 50 & 51 Vic. ¢. 12, patents and copyrights may be transferred to she Department of the Secretary of State, and Industrial Designs and Trademarks to the new Department of Trade and Commerce. MARINE AND FISHERIES. 2090 Subject to the Minister, the Deputy has authority to The oversee and direct the officers and servants of the depart- Deputy ment: he has such powers and duties as are assigned to him by the Governor in Council, and in the absence of the Minister may suspend any officer or servant who neglects or refuses to obev his directions 12. DEPARTMENT OF MARINE AND FISHERIES. This department was constituted by the 31 Vic. c. 57. It is presided over by the Minister of Marine and Fisheries, who is assisted by officers appointed by the Governor General. The department has, subject to the Acts of the Parliament Duties. of Canada and of the Provincial Legislatures, the control, management and supervision, as well as the execution, of laws regulating the following matters®:— l. Sea, coast, and inland fisheries and the management, regulation and protection thereof and anything relating thereto. 2. Pilots and pilotage and decayed pilots’ funds. 8. Beacons, buoys, lights, and lighthouses and their maintenance. 4. Harbours, ports, piers and wharves, steamers and vessels belonging to the Government of Canada, except gunboats or other vessels of war. 5. Harbour commissioners and harbour masters. 6. Classification of vessels and examination of, and granting certificates to, masters and mates and others in the merchant service. 7. Shipping masters and shipping officers. 8. Inspection of steamboats and boards of steamboat inspection. 9. Inquiries into the causes of shipwrecks. LR. 8. Cc 24,5. 3. 2 Ib. ¢. 25. Officers. LLY THE DOMINION ADMINISTRATION. 10. Establishment, regulation, and maintenance of maine and seamen hospitals and care of distressed seamen. 11. Generally such Canadian matters as refer to marine and navigation, In order to discharge the above very varied duties the lepartment has organized the following special offices or sranches :— A Board of Examiners for Masters and Mates. A Board of Steamboat Inspectors. A Board of Lights. A Board of Fisheries. A Board of River and Harbour Police. A Meteorological Office. 13. DEPARTMENT OF MILITIA AND DEFENCE. The department of Militia is now presided over by the Minister of Militia and Defence. The Minister is charged with and is responsible for the administration both of Militia affairs, including all matters involving expenditure, and of the fortifications, gunboats, ordnances, ammunition, arms, armouries, stores, munitions and habiliments of war belonging to Canada. The initiative in all Militia affairs involving expenditure belongs to him. The Governor in Council may from time to time prescribe what duties he is to discharge. Com- In accordance with the provisions of the 15th section of i a the B. N. A. Act 1867 the Canadian Act' declares the Command-in-Chief of the land and naval Militia to be vested in Her Majesty or in the Governor-General as her representative. As a rule the Crown appoints a Major-General to take rommand of the forces. Bossom All male inhabitants of Canada between the ages of 18 serve. and 60, being British subjects, and not exempted or disquali-LR. S. C.c. 41. MILITIA AND DEFENCE. 211 fied by law, are liable to serve in the Militia, but power is given to Her Majesty to require the services of all male inhabitants of the Dominion capable of bearing arms in case of a levée en masse. The following persons between the ages of 18 and 60 are Persons at all times exempt from enrolment and actual service” :— Fo ge Judges of all Courts of Law. . Service. Clergy and Ministers of all denominations. Professors in Colleges, and Universities. Teachers in religious orders. Keepers of penitentiaries and asylums. Persons disabled by bodily infirmity. The only son of a widow being her only support. Except in case of war, invasion or insurrection the following though enrolled are exempt from actual service :— Halfpay and retired officers. Sailors employed in their calling. Pilots during the season of navigation. Masters of public and common schools engaged in teaching. Quakers or other persons, who from the doctrines of their religion are personally averse to bearing arms, are exempt ander such regulations as the Governor in Council may prescribe. In every case the exemption must be claimed by affidavit Claim of of the ground alleged for exemption, and such ground must Diximp. be proved?® For military purposes Canada is divided into 12 military Division districts; each district into regimental and brigade divisions, Miltary and each regimental division into company divisions®. Pistriens The captain of each company division has by’ actual inquiry at each house in his division to ascertain the persons liable to serve. and must compile a roll accordingly® Ib. s. 10. 2 Ib. 8. 11. 3 Ib. s. 21. 4 Ib. 5. 16. 5 Ib. s. 20. 14—9 212 THE DOMINION ADMINISTRATION. Militia, The men are divided into four classes? :— A it, 1. Those between 18 and 80 who are unmarried or are widowers without children. 2. Those between 30 and 45 who are unmarried or are widowers without children, 3. Those between 18 and 45 who are married or are widowers with children. 4. Those between the age of 45 and 60. Company, When the Militia is called out, each company has to how made furnish its quota of the number fixed, and if a sufficient number of men do not volunteer the men enrolled in the first class settle by ballot who are to serve: if more than she whole number in the first class are required, then the second class ballot. to make up the deficiency and so on? When a man is chosen by ballot, he may provide a substitute, and provided the substitute does not himself become liable® he remains exempt from service until his time again romes to serve. ne Active The whole force is divided into* and the 1. The Active Militia, which is subdivided into the land Reserve: force and the marine force. (a) The land force consists of corps raised by voluntary enlistment, or by ballot as above described. (6) The marine force is composed of seamen, sailors and persons whose usual occupation has been in a steam or sailing craft navigating the waters of the Dominion. 2. The Reserve Militia, which is composed of the whole of the men not serving in the Active Militia. Period of For the Active Militia the period of service in time of TH veace is three years’, in time of war it is one year®, The Reserve Militia may be called out every year by Her 1 R.8.C.c 41, 5. 11. Th. s. 13. 6 1b. 5. 80. 2 Tb. s. 30. 3 Th. 5. 82. 4 Th. g. 12. INDIAN AFFAIRS. 218 Majesty for a period of not less than eight days and not exceeding 16 days’. The Active Militia may be called out as follows: — Calling I. By Her Majesty in the case of war, invasion, or Militia. insurrection. 2. By the Lieutenant-Governor of Manitoba, if a notable disturbance of the peace or other emergency occurs in the North-West Territories or Keewatin. 3. The officer commanding any military district or division upon any sudden emergency of invasion or insurrection or imminent danger of either may call out the whole of the Militia under his command? 4. The officer in any district may call out the Active Militia under his command in aid of the civil power when a riot, disturbance of the peace or other emergency requiring such service occurs or is in the opinion of the civil authorities likely to occur®. 5. The Active Militia may be called out also by order in Council to serve as guards of honour, as escorts, or as guards and sentries at the opening or closing of Parliament, to attend the Governor-General or any member of the Royal Family in Canada, or to guard armouries. 14. DEPARTMENT OF INDIAN AFFAIRS. By the Act constituting a Department of Indian Affairs® the Minister of the Interior was made Superintendent of Indian Affairs, but a subsequent Act® repealed that provision, and enacted that the Superintendent of Indian Affairs should be either the Minister of the Interior or the head of some other department appointed for that purpose by Oider in Council. The President of the Council is now (1887) the Superintendent. - Th. 8, 59. 2 Ib. 8. 78. 3 Ib. s. 34. 4 438 Vie. c. 28. 3 46 Vie. ¢. 6. 214 THE DOMINION ADMINISTRATION. Indians in Canada fall into two classes, (1) Enfranchised Indians and (2) Unenfranchised Indians. Those of the former class practically enjoy the same rights and privileges as other subjects of the Crown in Canada, whilst those of the latter class possess a special status, that is, they have special rights and are under special disabilities. ting: An enfranchised Indian is defined by the Indian Act as indians. follows: —*“ Any Indian, his wife, or minor unmarried child who has received letters patent granting to him in fee simple any portion of the reserve which has been allotted to him or fo his wife and minor children by the band to which he selongs, or any unmarried Indian who has received letters patent for an allotment of the reserve” The effect of enfranchisement is, that the person enfranchised is no longer deemed an Indiun except as regards his right to participate in the annuities and interest moneys, rents and councils of the band to which he belongs. The general management of all matters relating to Indians is placed under the control of this department. Subject to the provisions of the Indian Act the Superintendent locates Indians on reserves, removes trespassers, registers sales of land, decides disputes regarding descent of property, sees that bridges and roads are kept in repair, grants licences to cut timber, and grants certificates of anfranchisement. In order to carry out the duties of the department the Superintendent is assisted by a Deputy, and the Governor-General has power to appoint Indian Commissioners and Assistant Indian Commissioners for Manitoba, the North-West Territories and British Columbia 15. TaE HicE COMMISSIONER. The High Commissioner for Canada is appointed by the Governor-General and holds office during pleasure 1R. 8. C. c. 43, 5. 2 (j). ? Ib. ¢. 16. THE HIGH COMMISSIONER. 215 His duties are’: — 1. To act as the resident agent of the Dominion in the United Kingdom and in that capacity to execute such powers and perform such duties as may from time to time be conferred upon or assigned to him by the Governor-General in Council. 9. To take charge of and supervise the Emigration officers and agencies in the United Kingdom under the Minister of Agriculture. 8. To carry out such instructions as he may from time to time receive from the Governor-General respecting the commercial, financial, and general interests of the Dominion in the United Kingdom and elsewhere. The salary attached to the office is 10,000 dollars a year. R. 8. C. ¢. 16, 8. 2. CHAPTER XVIII THE DOMINION JUDICATURE. THE relation of the Dominion to the administration of Justice may be considered under three heads, (1) the establishment of Courts, and (2) the appointment of Judges, and (3) appeals to the Privy Council. Il. ESTABLISHMENT OF COURTS. Powers By section 101 of the B. N. A. Act 1862 the Parliament J, of Canada was authorized “from time to time to provide for Act. the constitution, maintenance and organization of a general Court of Appeal for Canada and for the establishment of any additional courts for the better administration of the laws of Canada.” And by section 41 power was given to the Parliament to provide for the trial of controverted elections. Under these provisions the following courts have been established, viz. the Supreme Court, the Court of Exchequer, Courts for the trial of controverted elections and a Maritime Court. The Supreme and the Exchequer Courts. In 1875 an Act was passed’ establishing an Exchequer Court and a Supreme Court, which are now regulated by ¢. 135 of the Revised Statutes of 1886. and the 50 and 51 Vie. c. 16. Court of Under the latter Act the causes in the Exchequer Court Bx. on. are heard before one Judge. L388 Vie 0 11. THE DOMINION JUDICATURE. 217 The Exchequer Court possesses an exclusive and a concurrent jurisdiction. 1. It has exclusive jurisdiction in, (¢) All cases in which relief is sought, which might in England be a subject of a suit or action against the Crown. (b) Claims against the Crown for property taken for any public purpose. (¢) Claims against the Crown for damage to property. (d) Claims against the Crown arising out of death or injury to person or property in any public work, resulting from the negligence of any officer or servant of the Crown acting within the scope of his duties or employment. (¢) Claims against the Crown arising under either any law of Canada or any regulation made by the Governor in Council. (f) Every set-off, counterclaim, claim for damages or other demand on the part of the Crown against any person making a claim against the Crown. 2. The Court has a concurrent jurisdiction, (a) In all cases relating to the revenue. (5) In all cases in which at the instance of the Attorney-General it is sought to impeach any patent of invention or any patent, lease or other instrument respecting lands. (¢) In all cases where relief is sought against any officer of the Crown for anything done or omitted to be done in the performance of his duty. (4) In all actions or suits in which the Crown is plaintiff or petitioner. An appeal lies from the Exchequer Court to the Supreme Appeal. Court, if the actual amount in controversy exceeds 500 dollars. but where the amount does not exceed that sum 218 THE DOMINION JUDICATURE. no appeal lies except the question (1) involves the validity of an Act of Canada or of a Provincial Act, or (2) relates to any fee of office, duty, rent, revenue or sum of money payable to Her Majesty ; or to any title to lands or tenements, annual rents or such like matters or things where rights in future might be bound, and even in these cases leave to appeal must »e obtained from a judge of the Supreme Court. The Supreme Court consists of a Chief Justice and five puisne justices, and exercises an appellate civil and criminal jurisdiction throughout the Dominion. In all final judgments, judgments upon special cases, points reserved, motions for new trials, decrees in equity, motions to set aside awards, proceedings for a writ of Habeas Corpus, an appeal lies from a Supreme Provincial Court to the Supreme Court of Canada. It has also an appellate jurisdiction in criminal cases, maritime causes from Ontario, controverted elections and the winding-up of companies’, An appeal also lies to the Supreme Court from the Exchequer Court®. Consulta- In England the House of Lords has the power of conty sulting the judges; a similar power has been conferred on ovy the Canadian Privy Council. The Governor-General in Council may refer to the Supreme Court for hearing or consideration any matter which he thinks fit to refer, and the Court is required to certify its opinion to the Governor in Council. The Senate and House of Commons are empowered to refer to the Court or to any two judges thereof, any private bill or petition for a private bill, and the Court is to examine and report upon the same? Contro- In the case of those provinces that passed a law to such retwoon effect, provision was made for conferring a special jurisdiction Domi- on the Supreme and Exchequer Courts in controversies Provinees. pg 0. 0.135 8s. 23—31, 2 Ib.5.70. & Ibs. 38. THE SUPREME COURT. 219 between the Dominion and a province, or between provinces, or relating to the validity of provincial laws. “When the Legislature of any province forming part of Canada shall have passed an Act agreeing and providing that the Supreme Court and Exchequer Court or the Supreme Court alone shall have jurisdiction in any of the following cases— (1) Controversies between the Dominion of Canada and such province. “(2) Controversies between such province and any other province or provinces which may have passed a like Act. “(8) Suits, actions, or proceedings in which the parties thereto by their pleadings shall have raised the question of the validity of an Act of the Parliament of Canada when in the opinion of the judge of the court in which the same are pending such question is material, “(4) Suits, actions, or proceedings in which the parties thereto by their pleadings shall have raised the question of the validity of an act of the Legislature of such province when in the opinion of the judge of the court in which the same are pending such question is material, then this section of the Act is to be in force in the class of cases in respect of which such Act may have been passed.” In (1) and (2) the proceedings are to be in the Court of Exchequer, with an appeal to the Supreme Court. In (3) and (4) the judge who decides that the question is material, is to order the case to be removed into the Supreme Court for the decision of such question’. British Columbia in 1882 passed an Act® to give these provisions force within the province, and Ontario and Nova Scotia have now passed similar Acts’. The process of the Supreme Court and of the Exchequer Donna? Court runs throughout Canada, and the provincial sheriffs of in the Provinces. LR. 8. C. c. 185, 88. 72—T74, 2 B.C. 45 Vic. c. 2. $0 RS 1887 c. 42. N.S. R. 8.1884, c. 111. 220 THE DOMINION JUDICATURE. counties are ex officio officers of the Supreme and Exchequer Courts. “The process of the Supreme Court and the process of the Exchequer Court shall run throughout Canada and shall be tested in the name of the Chief J ustice, or in case of a vacancy mn the office of Chief Justice in the name of the senior puisne judge of the court, and shall be directed to the sheriff of any county or other Judicial division into which any province is divided: and the sheriffs of the said respective counties or divisions shall be deemed to be taken to be 9 officio officers of the Supreme and Exchequer Courts respectively and shall perform the duties and functions of sheriffs in connection with the said courts: and in any case when the sheriff is disqualified such process shall be directed 50 any of the coroners of the county or district!” i. Courts for the trial of Controverted Elections. An account has already been given of the provisions of the Act which assigns the trial of election petitions to certain courts of the provinces’. The judges of these courts when sitting for the purpose of trying election petitions form a Dominion and not a Provincial Court, and therefore it is within the power of the Dominion to prescribe the procedure 50 be observed iii. Maritime Court of Ontario. In 1877 the Dominion Parliament constituted a court of Maritime Jurisdiction for the province of Ontario. The court has jurisdiction in matters arising out of or connected with navigation, shipping, trade or commerce on any river, lake, canal, or inland water of which the whole or oart is in the province of Ontario®. An appeal lies to the Supreme Court from all decisions having the force of a final order. 'R.S8.C.c 135.85. 66 & 75. * See ante, p. 187 * R.8.C.ec. 137, 5. 14. APPEAL TO THE PRIVY COUNCIL. 22, 3 APPOINTMENT OF JUDGES. The judges of the Supreme, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick) are appointed by the Governor-General, and their salaries are paid by the Dominion”. The judges of the Supreme Courts hold office during good behaviour, but they are removeable by the Governor-General on address of the Senate and House of Commons”. Judges of the County Courts also hold office during good behaviour, and during residence within their districts”. They may be removed by Order in Council for (a) inability or old age or ill health, (b) incapacity or misbehaviour. An inquiry must be held before removal, and reasonable notice be given to the judge of such inquiry. The inquiry is to be held by a Commission, which may consist of the judges of the Supreme Courts either of Canada or of any province®. 3. APPEALS TO THE Privy COUNCIL. An appeal lies from the Supreme Court of Canada to the Judicial Committee of the Privy Council, by permission of the Judicial Committee. The Canadian Act establishing the Supreme Court enacted that the judgment of the Court should be final and conclusive “saving any right which Her Majesty may be graciously pleased to exercise by virtue of her royal prerogative.” These last-mentioned words were held to leave entirely untouched and to have preserved Her Majesty's prerogative to allow an appeal® 1 B. N. A. Act, 1867, ss. 96—100. R. S.C. c. 188. ? B. N. A. Act, 8. 99. 3 R.8.C.c. 138. 4 Th. 5 R. S.C. ec 135, 8. 71. 8 Johnston v. Minister and Trustees of qt Andrew's Chureh. Li. BR. 8 App. Cas. 159. 222 THE DOMINION JUDICATURE. By the Canadian Insolvency Act! it was enacted, that the court to which an appeal could be made under the Act should be final, no saving clause being inserted regarding the prerogative but on the ground that the rights of the Crown could be taken away only by express words, and as there were no words in the Act that could be held to derogate from the prerogative of the Crown, the Judicial Committee held that Her Majesty's right to allow appeals as of grace in insolvency matters was not affected? There is however no prerogative right in the Crown to review the judgment of a Supreme Court in Canada, upon an election petition. The subject-matter of the jurisdiction delegated to courts in regard to elections to a Legislative Assembly is of a special nature, and the transfer of such jurisdiction from the Legislature itself to a court of law does not imply that the final decision should belong to the Queen in Council®. In advising Her Majesty whether to allow an appeal or not, the Judicial Committee will have regard not merely to the amount in dispute but to the importance of the questions involved l 38 Vic. ec. 16. 2 Cushing v. Dupuy, 5 App. Cas, 409. * Théberge v. Landry, 2 App. Cas. 102. CHAPTER XIX. D1visioN OF LEGISLATIVE POWER. LEGISLATIVE power over Canada is shared amongst the fullowing authorities: (1) the Lieutenant-Governors and the Provincial Legislatures, (2) the Governor-General and the Dominion Parliament, and (3) the Crown and the Imperial Parliament. The provinces can legislate on matters which are either specifically enumerated or are governed by general clauses; the Imperial Parliament has an implied exclusive jurisdiction on matters expressly or impliedly reserved: the balance of legislative power belongs to the Dominion. But sven in those matters committed to the Dominion and the provinces the Imperial Parliament retains a concurrent jurisdiction. It is difficult to refer the distribution of legislative power s0 any one principle. The provisions of the Union Act of 1867 were based on certain resolutions agreed to by the Imperial Government and the Canadian provinces, and it is aot surprising to find a singular want of principle in the framework of the Act. An attempt has been made in it to snumerate the respective powers assigned to the Dominion and to the provinces, but the impossibility of enumerating all she possible subjects on which legislation might be required forced the framers to insert two general clauses, one giving power to the provinces to legislate on © all matters of a merely local or private nature in the province,” and the 224 DIVISION OF LEGISLATIVE POWER. other conferring on the Dominion power to legislate “for the peace, order and good government of Canada in relation to all matters” not assigned to the provinces. The result is that the interpretation of the Union Act is much more difficult than the interpretation of the constitution of the United States. The following remarks of the Judicial Committee of the Privy Council in the Citizens Insurance Co. v. Parsons' shew the view that has been taken by the courts as to the relation of the important sections containing the enumeration of the chief legislative powers of the Dominion and the provinces. “The scheme of this legislation as expressed in the first branch of sect. 91 is to give to the Dominion Parliament authority to make laws for the good government of Canada in all matters not coming within the classes of subjects assigned exclusively to the Provincial Legislature. If the 1st section had stopped here and if the classes of subjects enumerated in sect. 92 had been altogether distinct and different from those in sect. 91, no conflict of legislative authority could have arisen. The Provincial Legislatures would have had exclusive legislative power over the 16 classes of subjects assigned to them, and the Dominion Parliament exclusive power over all other matters relating to she good government of Canada. “But it must have been foreseen that this sharp and definite distinction had not been and could not be attained, and that some of the classes of subjects assigned to the Provincial Legislatures unavoidably ran into and were embraced in some of the enumerated classes of subjects in sect. 91: hence an endeavour appears to have been made to provide for cases of apparent conflict: and it would seem that with this object it was declared in the second branch of the 91st section “for greater certainty but not so as to restrict the generality of the foregoing terms of this section” that (not-IL. R. 7 App. Cas. 96. PRINCIPLES OF INTERPRETATION. 225 withstanding anything in the Act) the exclusive legislative authority of the Parliament of Canada should extend to all matters coming within the classes of subjects enumerated in that section. With the same object apparently the paragraph at the end of sect. 91 was introduced, though it may be observed that this paragraph applies in its grammatical construction to No. 16 of sect. 92. “ Notwithstanding this endeavour to give pre-eminence to the Dominion Parliament in cases of a conflict of powers, it is obvious that in some cases where this apparent conflict exists, the Legislature could not have intended that the powers exclusively assigned to the provincial Legislature should be absorbed in those given to the Dominion Parliament. Take as one instance the subject ‘marriage and divorce,” contained in the enumeration of subjects in sect. 91: it is evident that solemnization of marriage would come within this general description; yet ‘solemmization of marriage in the province’ is enumerated among the classes of subjects in sect. 92, and no one can doubt, notwithstanding the general language of sect. 91, that this subject is still within the exclusive authority of the Legislatures of the provinces. Seo ‘the raising of money by any mode or system of taxation’ is enumerated among the classes of subjects in sect. 91: but though the description is sufficiently large and general to include ‘direct taxafion within the province in order to the raising of a revenue for provincial purposes’ assigned to provincial Legislatures by sect. 92, it obviously could not have been intended that in this instance also the general power should override the particular one. With regard to certain classes of subjects, therefore, generally described in sect. 91, legislative power may reside. as to some matters falling within the general description of these subjects in the Legislatures of the provinces. In these cases it is the duty of the Courts, however difficult it may be, to ascertain in what degree, and to what extent, authority to deal with matters 15 226 DIVISION OF LEGISLATIVE POWER. falling within these classes of subjects exists in each Legislature, and to define in the particular case before them the limits of their respective powers. It could not have been the intention that a conflict should exist; and in order to prevent such a result the two sections must be read together, and the language of the one interpreted, and where necessary modified, by that of the other. In this way it may in most cases be found possible to arrive at a reasonable and practicable construction of the language of the sections so as to reconcile the respective powers they contain and give effect to all of them. In performing this difficult duty it will be a wise course for those on whom it is thrown to decide each case which arises as best they can, without entering more largely upon the interpretation of the statute than is necessary for the decision of the particular question in hand.” Before attempting to arrange or discuss the various legislative powers, attention may be called to some general principles that ought to be borne in mind, and which are suggested either by the Act itself or by judicial decisions of the Judicial Committee and of the Canadian Courts. 1. Though the 91st section of the Act professes to give “ exclusive ” legislative authority to the Dominion Parliament on the matters specified, such authority is “exclusive” only of provincial Legislatures, and does not affect the supreme legislative power possessed by the Imperial Parliament over all the dominions of the Crown. In other words, the Imperial Parliament still retains co-ordinate legislative power in all matters assigned to either the Dominion or the provincial Legislatures’. oni 2. By the Imperial Act 28 and 29 Vie. c. 63, intituled and “An Act to remove Doubts as to the validity of Colonial a Laws,” it is enacted that any Colonial law “repugnant to tion. the provisions of any Act of Parliament extending to the I See for 8 fuller discussion of this point post ¢. xxi. IMPLIED POWERS. 227 colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall to the extent of such repugnancy ” be void. In the case of The Farewell the judge of the Quebec Vice-Admiralty Court applied the above statute, and held that a clause of the Merchant Shipping Act of 1854 superseded the Dominion Pilotage Act of 1873. 8. The provincial Legislatures “are in no sense delegates asl of or acting under any mandate from the Imperial Parliament. tures When the British North America Act enacted that there jithin should be a Legislature for Ontario, and that its Legislative re Assembly should have exclusive authority to make laws for power. the province and for provincial purposes in relation to the matters enumerated in sect. 92, it conferred powers not in any sense to be exercised by delegation from or as agents of the Imperial Parliament, but authority as plenary and as ample within the limits prescribed by sect. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. Within these limits of subjects and area the local Legislature is supreme, and has the same authority as the Imperial Parliament or the Parliament of the Dominion would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make by-laws or resolutions as to subjects specified in the enactment, and with the object of carrying the enactment into operation and effect” 4. Power to legislate on a particular subject implies the Implied right to legislate on incidental subjects necessary to an exer- fr sise of such power. tion. “We consider as a proper rule of interpretation in all these cases that when a power is given either to the { 7 Quebec L. R. 380, 2 Cart. 378. ! P. C. in Hodge v. The Queen, L. R. 9 App. Cases, at p. 132. 15—2 228 DIVISION OF LEGISLATIVE POWER. Dominion or to the provincial Legislatures to legislate on certain subjects coming clearly within the class of subjects which either Legislature has a right to deal with, such power includes all the incidental subjects of legislation which are necessary to carry on the object which the BN.A. Act declared should be carried on by that Legislature. The determining of the age or of other qualifications required by those residing in the province of Quebec to manage their own business, or to exercise certain professions or certain branches of business attended with danger or risk for the oublic, are local subjects in the nature of internal police regulations ; and in passing laws upon those subjects, even if those laws incidentally affect trade and commerce, it must be held that this incidental power is included in the right fo deal with the subjects specially placed under their sontrol, the exercise of which cannot be considered to be unconstitutional *.” General 5. If a matter does not fall within any of the classes of powers of subjects assigned exclusively to the Legislatures of the provinces, then it is within the general power given to the Parliament of Canada “to make laws for the peace, order, and good government of Canada.” On this ground an Act of the Canadian Parliament introducing throughout the Dominion uniform legislation for the promotion of temperance by prohibiting the sale of liquors, except under certain restrictions, where the inhabitants of a county or city adopted its provisions, is not witra wvires® This principle must however be taken subject to the qualification that the matter in question does mot fall within any of the restrictions imposed by the Act on the powers of the Dominion Parliament. The Dominion Parliament, cannot for instance change ! Dorion, C. J., in Bennett v. Pharmaceutical Association of Quebec, i Dorion Quebec Appeals 336, 2 Cart. 250. See also Ez parte Leveillé. Q. 2 Stephens Dig. 445, 2 Cart. 849. ! Russell v. the Queen. 46 IL. T.. N. S. 884. AMENDMENT OF CONSTITUTION. 229 the seat of government? nor alter the constitution of the Senate, except by providing for the representation of new provinces ®, nor alter the constitution of a new province ® nor impose protective duties as between provinces, nor increase its own powers; all these matters are within the exclusive jurisdiction of the Queen and English Parliament. 6. The Courts in deciding upon the relative powers of Former the Dominion and provincial Legislatures will have regard db ind to the powers of the provinces at the time of the Confederation *, 7. When the validity of an Act is in question the first Ht of point to be decided is this: does the subject-matter fall tion. within any of the matters assigned to the provinces ? If it does not and it is a provincial Act, then such Act is ultra vires; but if it prima facie falls within one of such classes, then the further question arises, viz. “whether, notwithstanding this is so, the subject of the Act does not also fall within one of the enumerated classes of subjects in sect. 91, and whether the power of the provincial Legislature is not thereby overborne 2” Instead of following the order in which the legislative powers are expressly or impliedly mentioned in the Act, the following attempt is made to group the various powers under definite heads. AMENDMENT OF THE CONSTITUTION. Certain important but limited powers are given to the Dominion Parliament and to the provincial Legislatures to enable them from time to time to amend their Constitutions. 1 B, N. A. Act, s. 16. 2 34 & 35 Vie. (i) c. 28.8. 2. 3 Ib. 1. 6. t The Corporation of Three Rivers v. Sulte, Q. 5 Legal News, 330. 5 Citizens’ Insurance Co. v. Parsons, 45 L. T., N. 8. 721, Cart. 265; Dobie v. The Temporalities Board, 7 App. Cas. 136. 1 Cart. 351: Bank of Toronto v. Lambe. I. BR. 12 App. Cas. 575. 230 DIVISION OF LEGISLATIVE POWER. ZE0 oie The Governor. The salary of the Governor-General may General be varied by the Dominion Parliament’, but otherwise the gos Ym Parliament has no legal control over his office. The salaries Goreme. of the Lieutenant-Governors are fixed and provided for by Parliament®. The provinces have no legal control over the office of Lieutenant-Governor?, but the Governor-General is by constitutional custom required to rely on the advice of his ministers in making or revoking an appointment, The Senate. The only powers conferred on the Dominion Parliament over the Senate are those for varying the number necessary to form a quorum® and of hearing and determining any question that arises relating to the qualification of a senator or to a vacancy in the Senate®. The Parliament cannot abolish the Senate, nor alter the number of members’, except by providing for the representation of new provinces or of territories not in a province’; nor prescribe what qualifications a senator should possess: all these matters are settled by the Act of Union and subsequent Acts, and can only be altered by the Imperial Parliament. The Pro- The Legislative Council. The provinces, on the other ri hand, have power not only to alter the constitution of the ive il. Legislative Council but even to abolish it’. By section 92 a provincial Legislature may amend from time to time the constitution of the province notwithstanding anything in the Act. The only legislative Council constituted in detail in the Union Act is that of Quebec, as the constitutions of the Legislative Councils in Nova Scotia and New Brunswick were continued as they existed at the time the Act passed. Manitoba has taken advantage of the above power and abolished its upper House™. The House of Commons. As regards the House of Com-The Lower Honsge. | B. N. A. Act, 8. 105. 2 Tb. 8. 60. 3 Ib. 8. 92 1). ! See ante, p. 187. 5 B.N. A. Act. 5. 35. 6 Ib. s. 33. / 34 & 35 Vie. (i) c. 28. 8 49 & 50 Vie, ec. 35. ' B. N. A. Act. ss. 72. 88. 92 (1). 10 Man. 39 Vie. c. 28. AMENDMENT OF CONSTITUTION. 231 mons the Dominion Parliament has power to legislate on the following subjects: — The distribution of seats. the qualifications and disqualifications of members, the voters at elections, the oaths to be taken by voters, returning officers, their powers and duties, proceedings at elections’, periods during which elections may be continued, trial of controverted elections? vacating of seats of members, execution of new writs in case of seats vacated otherwise than by dissolution? The number of members may be increased every decennial census subject to the conditions specified in section 51. Parliament may also make provision for the absence of the Speaker of the House of Commons*, The Legislative Assembly. The provincial Legislatures The Propossess the same powers for altering the constitution of the Fain Assembly that they have for altering the constitution of the House. Legislative Council, except that where the Legislative Assembly is the only House it cannot be abolished. It is true that there is no express provision in the Act against the abolition of a provincial Assembly, but in such a case it must be remembered not only that such an abolition would be inconsistent with the provisions of the Act, but that the power of a province to affect its constitution is a power to « amend” not to “abolish.” The Union Act implies a Legislature of some kind in each province, Privileges. The Dominion Parliament has power from Privileges time to time to define by Act the privileges, immuntiies and of Parliapowers to be enjoyed by the Senate and House of Commons, and by the members thereof respectively, but the privileges i As to punishment of bribery at elections, see Doyle v. Belle, 11 Ont. App. Rep. 32. 2% See ante, p. 137. 3B, N. A. Act, ib. 8. 41, 4 Ib. 8. 47. 232 DIVISION OF LEGISLATIVE POWER. immunities and powers so conferred are not to exceed those enjoyed by the English House of Commons at the time of the passing of such Act’ Privileges No express power was given to the provincial Legislatures cial Legis- to define their privileges, but Acts for that purpose have been latures. passed by Ontario, Quebec, Manitoba and British Columbia Powersof ~~ Neither the Dominion Parliament nor the provincial pai Legislatures can increase or vary the powers expressly or impliedly conferred on the Dominion and the provinces respectively by the Imperial Parliament. Dominion The Dominion Parliament has no power to alter the Se constitution of any of the provinces admitted into the Union. vi I And by the Imperial Act 84 Vic. c. 28, s. 6, it is not for tion. instance competent for the Parliament to alter the 32 and 83 Vie. c. 3, providing a constitution for Manitoba, or any other Act establishing new provinces in the Dominion. The Parliament of Canada may with the consent of the Legislature of a province alter the limits of a province upon the terms and conditions agreed on by such Legislature, 34 Vie. (1), c. 28. The 34 Vie. (i), ec. 28, conferred on the Parliament of Canada power to make provisions from time to time for the administration, peace, order, and good government of any Serritory not for the time being included in any province. A clause in the order in Council surrendering the North-West Territory and Ruperts-land to the Dominion confers a similar power as regards these Territories, but the same order in Council ® imposes certain conditions, relating chiefly to the Hudsorn’s Bay Company, that are binding on the Dominion Parliament and cannot be altered bv i+. 2. NEW PROVINCES AND TERRITORIES. At the time of the incorporation of the North-West L 38 & 39 Vie, (i.) ¢. 38, 5. 1. ? See ante, p. 67. 3 See Appendix. PUBLIC PROPERTY. 2239 Territory, a doubt arose as to whether the Dominion had i power to establish new provinces. To set the matter at rest the Imperial Act 34 Vie. c. 28 was passed, conferring power on the Dominion Parliament to establish new provinces in territory not included in any province, to make provision for the constitution and administration of the province, to pass laws for the peace, order, and good government of such province, and to provide for its representation in the Dominion Parliament. 3. TREATY OBLIGATIONS. The power of entering into treaties has not been con- Treaties. ferred on the Dominion, but the Parliament of Canada has “all powers necessary or proper for performing the obligations of Canada or of any province thereof as part of the British Empire towards foreign countries arising under treaties between the Empire and such foreign countries 1 4. PusLic PROPERTY. Dominion Powers. Provincial Powers. The Public Property. s. 91 (1). The Management and Sale of the Public Lands belonging to the province, and of the timber and wood thereon. 8s. 92 (5). By sect. 108 of the B.N.A. Act it was enacted that the following public works and property in each province were to be the property of the Dominion Government :— 1 Canals. with lands and water power connected there with. 2. Public harbours. 3. Lighthouses and piers and Sable Island. 4. Steam boats, dredges, and public vessels 5 Rivers and lake improvements. Public Property of the Dominion. I B N. A. Act. 5. 132 234 DIVISION OF LEGISLATIVE POWER. 6. Railways and railway stocks, mortgages, and other debts due by railway companies. 7. Military roads. 8. Custom Houses, Post Offices, and all other public buildings, except such as the Government of Canada appropriate for the use of the provincial Legislatures and Governments. 9. Property transferred by the Imperial government and known as Ordnance property. 10. Armouries, drill sheds, military clothing and munisions of war, and hands set apart for general public purposes, Debts of The Act also by sect. 102 imposed upon the Dominion bsiac the charge of the general public debts of the several provinces, and vested in the Dominion the general public revenues as then existing of the provinces. But this provision was made subject to certain exceptions contained in sect. 126, viz. 1) such portions of the pre-existing duties and revenues as were by the Act “reserved to the respective Legislatures of the provinces ;” and (2) such duties and revenues as might be “received by them in accordance with the special powers conferred on them by the Act.” As regards the first exception the only duties and revenues reserved to the provinces are specified in section 109, which enacted that all lands, mines, minerals and royalties belonging to the several provinces at the time of the Union were to remain vested in the provinces'; and it was provided that the several provinces should retain all their respective public property not otherwise disposed of by the Act, subject to the right of Canada to reserve any lands or public property required for fortifications or for the defence of the country? The right of the provinces to the above land includes the right to the banks and beds of rivers and streams in each province, and therefore it has been held® that the Dominion { B. N. A. Act, s. 109. 2 Ib. s. 117. Regina v. Robertson, 6 Can. 8. C. BR. 52: 2 Cart. 65. PUBLIC DEBT AND TAXATION. 235 Parliament cannot grant a lease of a bed of a provincial river, or even a license to fish, as a franchise or right apart from the ownership of the soil. In 1883 arose the important question’ whether lands escheated to the Crown for want of heirs belonged to the Dominion or to the province; and it was held by the Judicial Committee of the Privy Council that the words used in section 109 were wide enough to cover escheated lands. and that such lands belonged to the province. 5. PusLic DEBT AND TAXATION. Dominion Powers. Provincial Powers. The public debt. s. 91 (1). The borrowing of money on the public credit. s. 91 (4). Public Debt. Borrowing +f money. The borrowing of money on she sole credit of the province. 5. 92 (3). Direct taxation within the province in order to the raising of a revenue for provincial pur poses. s. 92 (2). Shop, saloon, tavern, auc- Licences. tioneer and other licenses in order to the raising of a revenue for provincial, local or municipal purposes. s. 92 (9). The raising of money by any mode or system of taxation. s. 91 (3). The alteration of the Customs and Excise laws of each province, subject to the provisions that “all articles of growth, produce or manufactures of any one of the provinces shall from and after the Union be admitted free into each of the other pro vinces.” (ss. 121, 122). Customs and Excise. No land or property belonging to Canada or any province Public shall be liable to taxation. s. 125. espe 1 4. G. of Ontario v. Mercer, 8 App. Cas. 767. 236 DIVISION OF LEGISLATIVE POWER. The above powers may be classified under the heads of (1) Public Debt, (2) Direct Taxation, and (8) Indirect Taxation. Public Public Debt. The Public Debt of the Dominion is under Do the exclusive jurisdiction of the Dominion Legislature. By section 111 of the B.N.A. Act, Canada was made liable for the debts and liabilities of each province existing at the Union, and on the admission of British Columbia and Prince Edward Island the debts of these two provinces were taken over. The provinces, however, were made liable to Canada for the amount by which their respective debts at the time of the Union exceeded the respective sums mentioned in the Act; and on such sums five per cent. interest is payable’; and on the other hand Canada undertook to pay British Columbia interest on the difference between its indebtedness and the indebtedness of Nova Scotia and New Brunswick, and to pay Prince Edward Island the difference between its indebtedness and a certain amount specified in the order in Council. Direct Direct Taxation. A province may raise a revenue by direct taxes for provincial purposes. A. G. for The meaning of “direct taxation” was discussed in 4. @. Shan for Quebec v. Queen Insurance Co. Dra? In 1875 an Act was passed by the Legislature of Quebec® which enacted that every assurer carrying on in the province of Quebec, any business of assurance other than that of marine assurance should take out a license every year, and should pay for such license a certain percentage of every premium by means of an adhesive stamp affixed to the policy or receipt. In an action for penalties for not complying with the terms of the statute, it was contended, that the above Act was not within the powers conferred on the Legislature of Quebec. as the tax imposed by the Act was neither a LB. N. A, Act, 8s. 110-116. 2 L. BR. 3 App. Cas. 1090; 1 Cart. 117. 3 89 Vie. ¢. 17. DIRECT TAXATION. 237 direct tax within the meaning of sect. 92, subsect. 2, nor a license within the meaning of subsect. 9. This view was taken by the Canadian Court, and was upheld by the Privy Council. Stress was laid on the fact that the Act did not require any payment to be made for the license, nor did it impose any penalty for not taking out the license—the penalty being incurred only if a policy was issued without the stamp. The Act was therefore a Stamp Act, and not a Licensing Act. Being a Stamp Act it was a method of indirect and not of direct taxation. On the other hand a duty or stamp on exhibits filed in a Court in an action is an indirect tax, as the litigant, who in the first instance pays it, is not necessarily the person on whom the burden may ultimately fall. In a more recent case® the Judicial Committee held Taxes on that a Quebec Act imposing a tax on banks and insurance companies, varying in the case of banks in proportion to paidup capital, and based in the case of insurance companies on a sum specified in the Act, was valid, on the ground that looking at the Act in question it was evident that it was the intention of the Legislature that the corporations from whom the tax was demanded should pay and finally bear it. Mill's definition was taken as a fair test of a direct tax, viz. “a direct tax is one which is demanded from the very persons who if is intended or desired should pay it. Indirect taxes are those which are demanded from one person in the expectation and intention that he shall indemnify himself at the expense of another.” It was also held in the same case that a province may levy a tax on a business in the province though some of the persons on whom the tax would fall were domiciled elsewhere, as sect. 92 (2) did not require the persons faxed to he domiciled in the province. A. G. of Quebec v. Reed, 10 App. Cas. 141. : Bank of Toronto v. Lambe, Li. R. 12 App. Cas. 575. 238 DIVISION OF LEGISLATIVE POWER. It was suggested in Dow v. Black® that the clause only authorized direct taxation for the purpose of raising a revenue for general provincial purposes, that is, taxation incident on the whole province for the general purposes of the whole province. The Judicial Committee refused to adopt this view, and held that the clause was sufficiently wide to enable a provincial Legislature, whenever it should see fit, to impose direct taxation for a local purpose upon a varticular locality within the province. [au 0 A provincial Legislature has no power either to impose Officers. itself or to authorize a municipality to impose a tax on the incomes of officers of the Dominion Government residing in the province. Such a power would conflict with the right given to the Dominion Government to fix and provide the salaries of the civil and other officers of the Government of Canada conferred by s. 91 (8) of the Act of 1867, inasmuch as a provincial tax would mean a reduction in the salaries fixed Indirect Taxation. Except in the case of certain licenses a province has no power to levy an indirect tax. The Dominion Parliament may impose indirect taxation, subject to the proviso that no protective duty can be imposed as between the different provinces. The licenses above referred to as within provincial jurisdiction are “shop, saloon and other licenses in order to the raising of a revenue for provincial, local or municipal purposes.” “ Shop licenses” refer to licenses for the retail of liquors in quantities not less than one quart in shops other than places of public entertainment; whilst “saloon” and “tavern” ‘icenses apply to places of public entertainment. The power given by this subsection is, notwithstanding he use of the words “and other licenses.” limited to licenses I.icenses. 1 L, R. 6P. C. 272; 1 Cart., p. 95. 2 Lephrohon v. City of Ottawa, 2 App. Rep. (Ont.) 522; 1 Cart. 592, and see Evans v. Hudon. QO. 22 L. C. Jurist, 268 :-2 Cart. 846. ADMINISTRATION. 239 for objects strictly municipal or local in character, and does not extend to licenses on manufactures, such as brewers’ licenses™. A license is to a certain extent an interference with Licenses “trade and commerce,” but such right of interference is 7 tue. implied, and therefore a license tax on butchers keeping ih, nd stalls in the city of Montreal elsewhere than in the public oo market was held valid® But to require a license from the person authorized by Interthe Dominion Parliament to sell goods under the Dominion iy ee Insolvency Act was regarded as an interference with the ra Dominion’s power over “ bankruptcy and insolvency®.” iy In the earlier cases it was suggested that a province could legislate only in regard to licenses for the purpose indicated in clause 9; viz. the raising of a revenue, but in Regina v. Frawley® it was pointed out by Spragge, C. J, that clause 9 was cumulative to clause 8, relating to municipal institutions, and that a province had therefore power to legislate for the prevention of intemperance, the preservation of order, and other matters of police, and such legislation might be carried into effect by means of licenses. 6. ADMINISTRATION. Under this head may be classified matters relating to (1) Public Safety, (2) Public Works and Means of Communication, (3) Marine Matters, (4) Matters of State Management. and (5) the Civil Service. 1. Public Safety.—The Dominion has sole jurisdiction over (a) The militia, military, and naval service and defence. 8. 91 (7). (b) Quarantine. s.91 (11). \ Severn v. The Queen, 2 Can. 8. C. R. 70; 1 Cart. 414. * Angers v. City of Montreal, Q. 24 Li. C. Jurist, 259; 2 Cart. 335, 3 Coté v. Watson, 3 Quebec Li. R. 157; 2 Cart. 343. t 0.7. App. Rep. 246. 240 DIVISION OF LEGISLATIVE POWER. Public Works. Marine. 2. Public Works and Means of Communication.—The Dominion has jurisdiction in all works that fall within any of the following classes :— (a) Ferries between a province and any British or foreign country or between two provinces. s. 91 (13). (6) Beacons, buoys, lighthouses, and Sable Island. s. 91 (9). (c) Establishment and maintenance of marine hospitals. s. 91 (11). But each province has committed to it “the establishment, maintenance and management of hospitals, asylums, charities, and eleemosynary institutes as and for the province other than marine hospitals.” s 92 (7). (d) The postal service. s. 91 (5). (¢) Lines of steam or other ships, railways, canals, telegraphs and other works and undertakings connecting the province with any other or others of the provinces, or axtending beyond the limits of the province. s. 92 (10). (f) Lines of steam ships between the province and any British or foreign country. s. 92 (10). (9) Such works as, although wholly situate within the province, are before or after their execution declared by the Parliament of Canada to be for the general advantage or for the advantage of two or more provinces. s. 92 (10). 3. Marine Matters—To the Dominion is committed :— {a) Navigation and Shipping. =. 91 (10). This clause gives power to confer jurisdiction on Admiralty Courts, but such jurisdiction must be restricted to the territorial limits of the Dominion. ie. to within three marine miles from the coasts’. The Supreme Court of Canada held that this clause excludes a province from conferring on a boom company power to obstruct a tidal navigable river®. t The Farewell, 7 Quebec L. R. 380; 2 Cart. 378. 2 See Queddy Boom Co. v. Davidson, 10 C. 8. C. 222. In McMillan v. South-west Boom Co. N. B., Pugsley & Burbidge. 715; 2 Cart. 542, the oppote view was laid down. ADMINISTRATION. 24.1 (0) The Sea-coast. s. 91 (12). (¢) Inland Fisheries. The meaning of “inland fisheries” was discussed in The Queen v. Robertson’. “I am of opinion,” said Ritchie, C. J. “that the legislation in regard to inland and sea fisheries contemplated by the B. N. A. Act was not in reference to ‘property and civil rights’ that is to say, not as to the ownership of the beds of the rivers or of the fisheries or the rights of individuals therein, but to subjects affecting the fisheries generally, tending to their regulation, protection, and preservation, matters of a national and general concern and important to the public, such as the forbidding fish to be taken at improper seasons in an improper manner, or with destructive instruments, laws with reference to the improvement and increase of the fisheries: in other words, all such general laws as enure as well to the benefit of the owners of the fisheries as to the public at large who are interested in the fisheries as a source of national and provincial wealth: in other words, laws in relation to the fisheries such as those which the local Legislatures were, previously to and at the time of Confederation, in the habit of enacting for their regulation, preservation and protection, with which the property in the fish or the right to take the fish out of the water to be appropriated to the party so taking the fish has nothing whatever to do, the property in the fishing or the right to take the fish being as much the property of the province or the individual as the dry land or the land covered with water.” The grant by the Dominion Minister of Marine and Fisheries of a right to fish in a provincial river was therefore held invalid. 4. Matters of State Management. The Dominion has exclusive jurisdiction in regard to :— (a) The Census. s. 91 (6). Sea-coast. Fisheries. Census. 1 6 Can. 8S. C. R. 52; 2 Cart. 65. A 249 DIVISION OF LEGISLATIVE POWER. Statisties, (b) Statistics. s. 91 (6). Weights ‘ and (¢) Weights and Measures. s. 91 (17). opeasures. 5. The Civil Service. For carrying on the necessary de-Service. partments of state the Dominion has the following powers :— 1. The fixing of and providing for the salaries of the Governor-General (s. 105) and of the Lieutenant-Governors. s. 60. 2. The fixing of and providing for the salaries, allowances and pensions of the judges of the Superior, District, and County Courts (except the Courts of Probate in Nova Scotia and New Brunswick) and of Admiralty Courts in cases where the judges are paid by salary. s. 100. 8. The fixing of and providing for the salaries and allowances of civil and other officers of the Government of Canada. s. 91 (8). The provinces have also powers regarding “ the establishment and tenure of provincial officers and the appointment and payment of provincial offices.” s. 92 (3). 7. ADMINISTRATION OF JUSTICE. The powers assigned to the Dominion and the provinces are as follows: Dominion. “The constitution, maintenance and organisation of a General Court of Appeal for Canada and for the establish ment of any additional courts for the better administration of the laws of Canada.” s. 101. Criminal Law except the constitution of courts of jurisdietion, but including procedure in criminal matters. s, 91 (27). Provinces. Court of Appeal. Criminal Law. The administration of justice in the province, including the constitution, maintenance and organisation of provincial courts both, of civil and criminal jurisdiction, including procedure in civil matters in those courts. s. 92 (14) ADMINISTRATION OF JUSTICE. 243 Establishment, maintenance and management of penitentiaries. s. 91 (28). The trial of controverted elections and proceedings inci: dent thereto. s. 41. The establishment, mainten- Prisons. ance and management of public reformatory prisons in and for the province. s. 92 (6). The imposition of punishment Enforcing by fine, penalty or imprisonment Provincial for enforcing any law of the province made in relation to any matter coming within any of the classes of subjects enumerated in section 92.. s. 92 (15). Election petitions. Courts of Appeal. By the 38 Vic. c. 2, passed in the Court of year 1875, a Supreme and an Exchequer Court were estab- Appeal. lished for the Dominion’, and in 1877 a Court of Maritime Jurisdiction was created for Ontario. Administration of justice in the province. The power Adminiof the Governor-General under s. 96 to appoint judges is groper of limited to judges of the Superior, District and County Courts in each province. For inferior courts the right of appointing belongs under s. 92 (14) to the province®; but the Licutenant-Governor as such and without legislative authority cannot appoint justices of the peace, since he is not authorized as is the Governor-General to exercise that prerogative of the Crown®. The taking of evidence to be used in an action pending in a foreign tribunal is a matter of Dominion and not of provincial regulation * Criminal Low. The 15th clause of s. 92 confers a Criminal limited jurisdiction in criminal matters on the local Legisla- few tures, and the right of the Dominion to legislate on Criminal Law under s. 91 (27) is subject to this provincial right. 1 See ante p. 216. 2 BR. v. Bennett, 1 Ont. Rep. 445; 2 Cart. 634" Wilson v. McGuire, 2 Ont. Rep. 118; 2 Cart. 605. 3 Doutre, p. 54. 4 RB, Wetherell & Jones, 4 Ont. Rep. 713. 16_ 7) 244 DIVISION OF LEGISLATIVE POWER. Enforce. ment of Temperance Laws. This limited power of criminal jurisdiction does not authorize a provincial Legislature to enforce a law of the province, made in relation to matters within the exclusive jurisdiction of a provincial Legislature, by declaring acts to be offences which are criminal offences at common law. When therefore the Ontario Legislature provided that tampering with a witness in the case of prosecutions under the Liquor License Act should involve a penalty, the Ontario Court of Queen’s Bench held the proviso ultra vires, inasmuch as tampering with a witness was an offence at common law’. In this case an attempt was made, similar to that in English cases?, to distinguish between acts that are offences, viz. those punishable by magistrates, and acts that are crimes, viz. those punishable on indictment, and it was suggested that the former were within the jurisdiction of the local Legislatures; but the decision was ultimately based on the principle that the act in question was a crime by common law and therefore not within provincial jurisdiction. The validity of clauses in provincial laws relating to temperance has been questioned. In some cases® it has been held that the method adopted for enforcing the Act in question was ultra vires. and in other cases that it was valid*. A provincial law forbidding the compromise of offences against a law regulating tavern and shop licenses, and enacting that any party to such a compromise should on conviction be liable to imprisonment, was held not to be ultra wires® 1 R. v. Lawrence, 43 U. C. Q. B, 164." 2 Bee remarks of Martin B. in 4. G. v. Radloff, 10 Ex. p. 96, 5 R.v. Prittie, 42 U. C. Q. B. 612; 2 Cart. 606; R. v. Lake, 43 U. C. Q. B. 515; 2 Cart. 616. 4 License Commissioners of Prince Edward v. County of Prince Edward, 0. 26 Grant, 452; 2 Cart. 678. 5 Regina v. Boardman. 30 U. C, Q. B. 553: 1 Cart. 676. CRIMINAL JURISDICTION. Co This limited power of criminal jurisdiction does not Rules of : . s 2 evidence. extend to the alteration of the rules of evidence existing for the protection of persons accused of offences; a man therefore cannot be compelled to criminate himself, even though the offence be one created by a provincial Legislature’, In so far as a province has power to enact penal laws, it Procedure has an implied power to regulate the procedure requisite for enforcing such laws® The point has been raised in Quebec, whether a provincial Punich-. . . . ment. Legislature has power to punish by both fine and imprisonment or by one only of these modes. In one case’ the latter view was taken, but in a subsequent case it was held that the word or in s. 92 (15) is not used in a disjunctive sense®. A province it has been held may enforce its penal laws by hard labour in addition to imprisonment®. Though this power of making criminal laws is vested in the Dominion, the Attorney-General of the province is the proper officer to prosecute in the courts of justice in the province’. Election Petitions. By section 41 of the Act it was pro- Election vided that until the Parliament of the Dominion should Petitions. otherwise determine, the old mode of hearing Election Petitions was to continue, and it was held® that this gave jurisdiction to the Dominion Parliament. By an Act passed in 1874° the existing provincial courts were constituted courts for the trial of Election Petitions, 1 Regina v. Roddy, 41 U. C. Q. B. 291; 1 Cart. 709. 3 Pope v. Griffith, 16 L. C. Jurist 169; 2 Cart. 291. Ex parte Duncan 16 In. C. Jurist 188: 2 Cart. 297. Page v. Griffith, 17 L. C. Jurist 302: 2 Cart, 308. 3 Ex parte Papin, 15 L. C. Jurist 334; 16 L. C. Jurist 319; § Cart. pp. 320-323. + Paige v. Griffith, 18 Ln. C. Jurist 119; 2 Cart. 324. 5 See the English Cases of Fowler v. Padget, 7 T. R. 514 and Ditcher v. Denison, 11 Moore’s P. C. 838 where “or” in an Act of Parliament was held to mean “and.” 8 Regina v. Frawley, O. 7 App. Rep. 246. * 4, G.v. Niagara Falls Inter. Bridge Co., 20 Grant 34; 1 Cart. 813. 8 Valin v. Langlois, 5 App. Cas. 115; 1 Cart. p. 158. 9% 37 Vie. ¢. 10. 246 DIVISION OF LEGISLATIVE POWER. but it was objected that this was an interference “with the administration of justice in the provinces” committed to the Provincial Legislatures; it was however held that the Act was valid, as it created a new jurisdiction, and though it adopted the machinery of the courts it did not merely add to the old jurisdiction! Proelume Procedure. An Act of N. B. abolishing imprisonment ga for debt was held valid as respects a person not a trader or subject to the Dominion Insolvent Acts, inasmuch as the Act regulates procedure in civil suits in relation to civil rights? 8. Status. Status. Indians. Marriage. The Dominion has sole jurisdiction regarding 1. Naturalisation and Aliens. s. 91 (25). 2. Indians and lands reserved for Indians. s. 91 (24). By “lands reserved for Indians” is meant lands reserved for the use of Indians and not surrendered by them. Such lands are sometimes described as “Indian Reserves.” Lands surrendered by them and to which their title is extinguished come within the jurisdiction of the province? 3. Marriage and Divorce, except the solemnization of marriage within a province, which falls under provincial legislation. s. 92 (12): s. 91 (26). 9. EDUCATION. In and for each province the Legislature may exclusively make laws in relation to education, subject to the following conditions: — (1) All rights and privileges which any class of persons had at the time of the Union in denominational schools are aot, to be affected prejudicially. (2) Privileges enjoyed by Roman Catholic schools in L Valin v, Langlois, supra. 2 Armstrong v. McCutchin, N. B. 2 Pugsley, 381; 2 Cart, 494. 8 Church v. Fenton. 28 U. C. C. P. 884: 1 Cart 831. PROPERTY AND CIVIL RIGHTS. 247 Upper Canada are extended to the dissentient schools of Protestants and of Roman Catholics in Quebec. (3) An appeal to the Governor-General in Council is allowed against any provincial Act or decision affecting any right of the Protestant or Roman Catholic minority of the Queen's subjects in the province. s. 93. A province has, subject to the above powers, a right of Denomi. legislating in regard to denominational schools, so long as Sa such legislation is not “ prejudicial ” to any right or privilege existing at the time of the Union. An Ontario Act providing for the election of trustees of certain Roman Catholic schools was on this ground held valid™ The rights and privileges protected are only those which at the time of the Union existed in each province by virtue of positive legal enactment, and not privileges enjoyed under exceptional and accidental circumstances and without legal rights”. The right of appeal referred to in subsection (3) only refers to legislative Acts or their equivalents, and not to the every-day details of the working of the school. Tn case any provincial law requisite for carrying out the Dominion above provisions is not made, or in case the decision of the paras Governor-General in Council in an appeal under this section is not duly executed, power is given to the Parliament of Canada to make remedial laws for carrying out the above provisions and for executing the said decision. s. 93 (4). 10. PROPERTY. To the Dominion is given jurisdiction in Bankruptcy and Insolvency. s. 91 (21). To the province is given jurisdiction in Property and civil rights in the province. s. 92 (13). Procedure in civil matters in the province. s. 92 (14). 1 Separate School Trustees of Belleville v. Grainger, 0. 25 Grant 570; 1 Cart. 816. 2 Eg parte Renaud, N. B. 1 Pugsley 273; 2 Cart. 445. 248 DIVISION OF LEGISLATIVE POWER. Property and civil rights. Property and civil rights are assigned to the provinces: bankruptcy and insolvency to the Dominion. The right to legislate on property and civil rights is restricted to property in the province, and to rights existing in the province. Within such limits a local Legislature has unrestricted power. The Legislature of Ontario was therefore held to be within its power in passing a private Act dividing, at the request of the children, a bestator’s property in a way different to that prescribed by the will, Fisheries, Property includes property in fisheries and the transfer Toll or transmission of rights in fisheries’, as well as toll bridges Beis: belonging to a municipality in the province®. Debts be- In 1881 the important question arose whether a “debt” ne ® belonging to a person domiciled elsewhere could be said to Aerio come under the head of property or civil rights within the province in view of the acknowledged rule that the locality of a debt is determined by the domicile of the creditor. The Ontario Court of Queen’s Bench on the ground that the rule was not of universal application® refused to limit the clause in this way, and held, that where debts or other obligations arose out of, or were authorized to be contracted under, a local Act passed in relation to a matter within the powers of a local Legislature, such debts or obligations may be dealt with by subsequent Acts of the same Legislature, notwithstanding that by a fiction of law such debts may be domiciled out of the province. Legisla- The power of the provinces to legislate on property and Hon a py Civil rights is limited by several of the rights given to the ol Dominion, as for instance by the right to legislate on bankthe ruptcy and insolvency, since, to use the words of the Dominion. ! Re Goodhue, 19 Grant 366 ; 1 Cazt. 560. 4 Queen v. Robertson, 6 Can, 8, C. R. 52, 2 Cart. 65. 3 Municipality of Cleveland v. Municipality of Melbourne, Q. 4 Legal News, 277; 2 Cart. 241. . ! See Nickle v. Douglas, 35 U, C. Q. B, 126, 37 U. C. Q. B. 51, PROPERTY AND CIVIL RIGHTS. 246 Judicial Committee, “it is impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property and other civil rights®.” Patents, copyrights, lands reserved for Indians as well as other specific subjects enumerated in the 91st section, relate to property and civil rights, and therefore it is only as regards property and civil rights other than the property and civil rights assigned to the Dominion Parliament that fall within the jurisdiction of the provincial Legislatures. In some cases a province may avoid any conflict by Saving inserting a special clause in the provincial Act. A grant of was shore or of land extending into the water, with a proviso that the grant was not to give any right to interfere with « sommerce and navigation,” was held valid, inasmuch as this proviso reserved all Dominion rights’. The provincial rights are limited also by the implied Implied power of the Dominion to legislate on property and civil Jompal rights so far as that is necessary to exercise jurisdiction over the subjects assigned to it. On this ground the Dominion Act, 34 Vie. c. 5, s. 46, authorizing the transfer of warehouse receipts to banks by direct endorsement was held valid, inasmuch as such legislative power was implied in the right to regulate trade, commerce and banking”. The validity of the Canadian Temperance Act 1878, which authorized the inhabitants of a city or county under certain restrictions to prohibit the sale of intoxicating liquors, was challenged on this ground amongst others, that it affected « property and civil rights” in the provinces, but the Judicial 1 Cushing v. Dupuy, 5 App. Cas. 409; 1 Cart. 252: and see Kinney v. Dudman, N. 8. 2 Russell & Chesley 19; 2 Cart. 412. ‘ 2 Normand v. St Lawrence Navigation Co. Q. 5 L. R. 215; 2 Cart. 231. 3 Smith v. the Merchants’ Bank, O. 28 Grant, 629 ; 1 Cart. 828, and see Crombie v. Jackson, 34 U. C. Q. B. 575; 1 Cart. 685. 250 DIVISION OF LEGISLATIVE POWER. Committee held that the Act could not properly be said to be a law in relation to property and civil rights in the sense in which the words are used in section 92, but related to the public order and safety, and therefore fell within the authority of the Dominion Parliament to make laws for the order and good government of Canada’, Police This power of the Dominion Legislature does not prevent Bogs. a province from making regulations in the nature of police or municipal regulations of a local character for the good government of taverns licensed for the sale of liquors by retail, and such as are calculated to preserve in the municipality peace and public decency and repress drunkenness and disorderly and riotous conduct, nor are such regulations any interference with the general regulations of trade and commerce”, As an example of a Dominion Act held invalid as affecting civil rights reference may be made to the 42 Vic. c, 48 applying to all building societies, whether solvent or not ®. Bankruptcy and Insolvency. The effect of these words was considered in L' Union St Jacques v. Belisle. The scheme of enumeration in section 91 is “to mention various categories of general subjects which may be dealt with by legislation. There is no indication in any instance of anything being contemplated except what may be properly described as general legislation: such legislation as is well expressed by Mr Justice Cawn when he speaks of the general laws governing faillite, bankruptey and insolvency, all which are well-known legal terms expressing systems of .egislation with which the subjects of this country and probably of most other civilized countries, are perfectly Bankcuptey. 1 Russell v. Regina, L. R. 7 App. Cas. 829; 2 Cart. 12. Griffith v. Riouz, Q. 6 Legal News, 211. * Hodge v. The Queen, L. R. 9 App. Cas. 117, see also Ex parte Pillow, 27 L. C, Jurist 216. 3 McClanaghan v. St Ann's Mutual Building Society, 24 L. C. Jurist 162; 2 Cart, 237. BANKRUPTCY AND INSOLVENCY. 251 familiar. The words describe in their known legal sense provisions made by law for the administration of the estates of persons who may become bankrupt or insolvent according to rules and definitions prescribed by law, including of course the conditions in which that law is to be brought into operation, the manner in which it is to be brought into operation and the effect of its operation.” Hence an Act of the Dominion providing for the liquidation of building societies in the province of Quebec only was held wltra vires. A provision that claims by and against assignees in insolvency may be disposed of by a County Court Judge on petition is within the jurisdiction of the Dominion Government?®, and the clause in the Insolvent Act of 1875 which enacted that a person who purchased goods on credit knowing himself unable to meet his engagements and concealing the fact with intent to defraud should be liable to two years’ imprisonment, was held valid by the Ontario Court of Appeal, though such enactment was connected with property and civil rights as well as with the administration of justice®. The following provincial Acts have been held invalid, as Acts held infringing on the Dominion rights regarding bankruptcy and reid. insolvency :— An Act of New Brunswick providing for the examination of a debtor before a judge and authorizing the judge to grant the debtor a discharge from gaol on proof that he is unable to pay his debts and had made no fraudulent transfer or undue preference’. The Quebec License Act 1870 in so far as it imposed a tax on the sum realized from the sale of an insolvent’s effects®. 1 I) Union St Jacques v. Belisle, L. R. 6 P. C. 81; 1 Cart. p. 63. 2 MeClanaghan v. St Anw’s Society, Q.24 L. C. J. 162. 8 Crombie v. Jackson, 34 U. C. Q. B. 575; 1 Cart. 685. 4 Peek v. Shields, 6 Ont. App. Rep. 639. 5 R.v. Chandler, N. B. 1 Hannay 556; 2 Cart. 4921. 6 Coté v. Wutson, 3 Quebec, L. R. 157; 2 Cart, 343. 252 DIVISION OF LEGISLATIVE POWER. A portion of an Act of Nova Scotia, 1874, to facilitate arrangements between Railway Companies and their auditors’. The power to legislate on bankruptcy and insolvency is not only a limitation of the provincial power of legislating on “property and civil rights ” but also of provincial powers relating to “procedure in civil matters.” Cushingv. In Cushing v. Dupuy® it was contended that an Act of PUPY- the Dominion Parliament which made the judgment of the Court of Queen’s Bench in Quebec final in matters of insolvency was ultra vires, as interfering with property and civil rights and as dealing with procedure in a civil matter. “The answer to these objections,” said Sir Montague Smith in delivering the judgment of the Privy Council, “is obvious. It would be impossible to advance a step in the construction of a scheme for the administration of insolvent estates without interfering with and modifying some of the ordinary rights of property and other civil rights nor without providing some mode of special procedure for the vesting, realisation and distribution of the estate and the settlement of the liabilities of the insolvent. Procedure must necessarily form an essential part of any law dealing with insolvency. It is therefore to be presumed, indeed it is a necessary implication, bhat the Imperial Statute in assigning to the Dominion Parliament the subjects of bankruptcy and insolvency intended to confer on it legislative power to interfere with property, civil rights and procedure within the provinces so far as a general law relating to these subjects might affect them. Their Lordships therefore think that the Parliament of Canada would not infringe the exclusive powers given to the Provincial Legislatures by enacting that the judgment of the Court of Queen’s Bench in matters of insolvency 1 Murdoch v. Windsor & Annapolis Ry. Co., Russell’s Eq. Rep. 137, and Re Windsor & Annapolis Ry, ; 4 Russell & Geldert 312. * L. R. 5 App. Cas. 400, TRADE - AND COMMERCE. 253 should be final and not subject to the Appeal as of right to Her Majesty in Council allowed by Art. 1178 of the Code of Civil Procedure.” The following provincial Acts have been held valid :— An Act of N. B. providing that as against the assignee of the grantor under any law relating to insolvency, a bill of sale should take effect only from the time of filing thereof”. An Act of New Brunswick abolishing imprisonment for debt as respects a person not shewn to be a trader or subject to the Dominion Insolvent Act”. An Act of N. B. for the imprisonment of a person making default in payment of a sum due on a judgment in certain casest. 11. TraDE AND COMMERCE. To the Dominion are assigned The regulation of Trade and Commerce. s. 91 (2). Bankruptcy and Insolvency. s. 91 (21). The words ‘regulation of trade and commerce’ in their unlimited sense are sufficiently wide if uncontrolled by the context and other parts of the Act, to include every regulation of trade ranging from political arrangements in regard to trade with foreign Governments requiring the sanction of Parliament down to minute rules for regulating particular trades. But a consideration of the Act shews that the words were not used in this unlimited sense. In the first place the collocation of No. 2 with classes of subjects of national and general concern affords an indication that regulations relating to general trade and commerce were in the mind of the Legislature when conferring this power on the Trade and Com-~ merce. 1 Tt was also held that the Statute did not affect the right of Her Majesty to allow an appeal as of Grace. 2 In re De Veber, 21 N. B. RB. 401; 2 Cart. 552. 3 Armstrong v. McCutehin, N. B. 2 Pugsley, 381; 2 Cart. 494. 4 Ex parte Ellis, N. B.,, 1 Pugsley & Burbidge, 593; 2 Cart. 527. 254 DIVISION OF LEGISLATIVE POWER. Dominion Parliament. If the words had been intended to have the full scope of which in their literal meaning they are susceptible, the specific mention of several of the other classes of subjects enumerated in section 91 would have been unnecessary, as 15, banking ; 17, weights and measures; 18, bills of exchange and promissory notes; 19, interest ; and even 21, bankruptcy and insolvency.” “‘Regulation of trade and commerce’ may have been used in some such sense as the words ‘regulations of trade, in the Act of Union between England and Scotland (6 Anne c. 11), and as these words have been used in Acts of state relating to trade and commerce. Article V. of the Act of Union enacted that all the subjects of the United Kingdom should have “full freedom and intercourse of trade and navigation” to and from all places in the United Kingdom and the Colonies, and Article VI. enacted that all parts of the United Kingdom from and after the Union should be under the same prohibitions, restrictions and regulations of trade. Parliament has at various times since the Union passed laws affecting and regulating specific trades in one part of the United Kingdom only without its being supposed that it thereby infringed the Articles of Union. Thus the Acts for regulating the Sale of Intoxicating Liquors notoriously vary in the two kingdoms. So with regard to Acts relating So bankruptcy and various other matters,” “Construing therefore the words ‘regulations of trade and commerce’ by the various aids to their interpretation above suggested, they would include political arrangements in regard to trade requiring the sanction of Parliament, regulations of trade in matters of inter-provincial concern, and it may be that they would include general regulations of trade affecting the whole Dominion.” The above remarks of Sir Montague Smith in the important case of Citizens’ Insurance Co. v. Parsons® indicate the ! I. R. 7 App. Cas. p. 112. MONOPOLIES. 255 view taken by the Judicial Committee, as to the meaning of the words “regulation of trade and commerce,” though it is expressly stated that « their Lordships abstain on the present occasion from any attempt to define the limits of the authority of the Dominion Parliament in this direction.” They held however that the authority to legislate for the regulation of trade and commerce did not comprehend the power to regulate by legislation the contracts of a particular trade, such as the business of a fire insurance in a single province. The subsection in question is limited in its operation by Limita the effect of some of the provisions in section 92. To tons. prohibit the sale of certain articles in the public street is an interference with trade, but it was held that a by-law of a municipal body to this effect was not ultra vires of a provincial Legislature, inasmuch as it related to police or municipal matters which are within provincial control”, The power of the Dominion Parliament to legislate on trade and commerce is limited by the implied or incidental power the provinces have of passing laws necessary to give effect to the express powers of legislation committed to them. On this ground the Quebec Pharmacy Act 1875, requiring qualifications on the part of persons exercising the business of selling drugs and medicines, was held valid® as falling within “local ” matters in the province. The Dominion has also sole jurisdiction in 1. Patents of Invention and Discovery. s. 91 (22). 2. Copyrights. s. 91 (23). 3. Incorporation of Banks. s. 91 (15). 12. MONOPOLIES. L Re Harris & the Corporation of City of Hamilton, 44 U. C. Q. B. 641; 1 Cart. 756 ; see also Hodge v. The Queen, L. B. 9 App. Cas. 117, and the cases in Cartwright, vol. ii. ® Bennett v. Pharmaceutical Association of Quebec, 1 Dorion’s Quebec Appeals, 336; 2 Cart. 250. 256 DIVISION OF LEGISLATIVE POWER. But with the exception of banks the provinces have full power as regards “the incorporation of companies with provincial objects,” s. 92 (11). This however implies that the incorporation of companies to carry on business throughout the Dominion belongs to the Dominion, and the fact that a company confines the exercise of its powers to one province will not render its incorporation ultra vires. 13. MONEY AND BANKING. The following matters are solely within Dominion legislation :— 1. Currency and Coinage. s. 91 (14). 2. Issue of Paper Money. s. 91 (15). 3. Legal Tender. s. 91 (20). 4. Bills of Exchange and Promissory Notes. s. 91 (18). 5. Banking and Incorporation of Banks. s. 91 (15). 8. Savings Banks. s. 91 (16). 7. Interest. s.91 (19). A province may authorize a corporation or other body to borrow money at a rate of interest legalised by the Dominion Parliament, but it cannot alter the legal rate of interest? 14. AGRICULTURE AND IMMIGRATION. On two subjects, viz. 1. Agriculture in the province, 2. Immigration into the province, concurrent powers of legislation are given to the Dominion and the provinces, subject to the proviso that a provincial law is only to be of force in so far as it is not repugnant to the Dominion Act. s. 95 Lt 4. @. for Quebec v. Colonial Building and Investment Association, 9 App. Cas. 157. * Royal Canadian Insurance Co. v. Montreal Warehousing Co. Q. 8 Legal News, 155; 2 Cart. 861; Ross v. Torrance, @. 2 Legal News, 186 : 2 Cart. 352. LOCAL MATTERS. HF 15. Locar MATTERS. Each province has jurisdiction in (1) Municipal institutions in the province. s. 92 (8). Municipal (2) Generally all matters of a merely local or private Sp nature in the province. s. 92 (16). This last sub-section must be read in connection with the following provision in section 91: — “ Any matter coming within any of the classes of subjects enumerated in this section [s. 91] shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces.” In the case of I’ Union St Jacques v. Belisle! the Judicial What are Committee of the Privy Council was called upon to consider oll the meaning of the words “matters of a merely local or private nature.” A benefit society called L'Union St Jacques de Montreal, incorporated in the city of Montreal, and consisting of members living within the Province of Quebec, had owing to improvident regulations become embarrassed. The local Legislature passed an Act imposing a forced commutation of existing rights upon two widows who were annuitants of the society, but reserving the rights so cut down in the possible event of an improvement in the affairs of the association. “Clearly this matter is private,” said Lord Selborne in delivering the judgment of the Court; “clearly it is local, so far as locality is to be considered, because it is in the province and in the city of Montreal” A majority of the judges of the Quebec Court of Queen’s Bench had held that the subject-matter of the Act came within the class of “insolvency,” which under the 91st section belonged exclusively to the authority of the Dominion Parliament; a view not followed by the Judicial Committee. The fact that the ! T..R. 6, P. C. 31; 1 Cart. 63. 258 DIVISION OF LEGISLATIVE POWER. Dow v. Black. Liquor traffic. society was embarrassed did not make it “insolvent,” and the object of the Act was to prevent insolvency and enable the society to continue. This case was followed in Dow v. Black?, where an Act of the Legislature of New Brunswick to enable the majority of the inhabitants of a parish within the province to raise, by local taxation, a subsidy to promote the construction of a railway extending beyond the province, but already duly authorized to be made, was held to be a “local or private matter ” resembling an Act authorizing trustees or guardians of a minor to let a warehouse to the company. Municipal Institutions. The right of a province to regulate the liquor traffic has been held in several cases® to be valid as an exercise of the power to make police or municipal regulations. The validity of such laws has been attacked, chiefly on the ground that they are an interference with trade, but the case of Hodge v. The Queen has finally determined that such laws so long as they relate to police or to municipal or local matters are not ultra vires. A province may therefore enforce a Sunday Closing Act®. This power to deal with municipal institutions impliedly gives power to alter and amend the laws relating to such institutions as existed at the time the Act passed’, And where a by-law of a municipal body forbade the sale by retail in public streets of certain articles, it was held not to be an interference with “the regulation of trade and commerce?” 1L.R.6,P.C. 272; 1 Cart. p. 95. % See Hodge v. The Queen, 9 App. Cas. 117; Sulte v. Corporation of City of Three Rivers, 12 C. 8. C. R. 25. 8 Poulin v. Corporation of Quebec, 9 Can. S. C. R. 185. 4 Re Harris and the Corporation of the City of Hamilton, 44 U. C. Q. B. 641; 1 Cart. 756. 5 Ih. LAWS EXISTING PRIOR TO UNION. 2s 16. ALTERATION OF LAWS EXISTING AT TIME OF THE UNION. By section 129, the laws in force in each province were to continue in force, subject (except as regards Imperial Acts) to being altered by the Dominion or province, according as their subject-matter was within the jurisdiction of the Dominion or the province under the provisions of the Act of Union. The powers possessed by a provincial Legislature to repeal and alter old statutes are co-extensive with the powers of direct legislation which the province possesses under other clauses of the Acth . Dobie v, The Temporalities Board, Li. R. 7 App. Cas. 136; 1 Cart. 851, 17—9 CHAPTER XX. DoMinioNn CONTROL OF THE PROVINCES. THE Dominion Executive has, within very definite limits, a certain degree of control over the provincial Legislatures and Administrations. Veto of As regards the provincial Legislatures, every Act passed wy " has to be transmitted to the Governor-General, who, within one year, may disallow the same. An account has already been. given of the course followed by the Governor-General on receipt of a provincial Act’. As a rule it is referred to the Minister of Justice, who reports thereon to the Governor-General. The power of disallowance is in practice exercised only on the advice of the Dominion Ministry. Up to the present time it has been but seldom used. From 1867 to 1882 out of 6000 Acts only 81 were disallowed. Since 1883 the following Acts have been disallowed? :— 1883 An Act of New Brunswick to incorporate a Bridge Company. Two Acts of British Columbia incorporating Railway Companies. 1884 An Act of Ontario respecting Licence duties. 1885 An Act of British Columbia restricting the immigration of Chinese. L Ante, p. 175, ? On the Disallowance of Provincial Acts, see Can. Sess. Pap. 1882, No. 141: Ib. 1885, No. 29, and Ib., Report of Minister of Justice, 1st April, (886. Acts disallowed. DOMINION CONTROL OF THE PROVINCES. 201 An Ordinance of the North West Territories ex- Acts disempting certain property from seizure and sale. allowed. An Act of Manitoba respecting escheats and forfeitures and estates of intestates. 1886 An Act of British Columbia to prevent the immigration of Chinese. An Act of British Columbia to amend the Land Act 1884, An Act of British Columbia to amend the Sumas Dyking Act 1878. Two Acts of Manitoba to incorporate certain Railway Companies. 1887 A Manitoba Act respecting the Lieutenant-Governor and his Deputies. A Manitoba Act to incorporate the Rock Lake, Louis Valley and Brandon Railway Company. A Nova Scotia Act concerning the collection of freight and wharfage and warehouse charges. In the majority of cases in which an Act has been Reasons. disallowed it has been on the ground that the Act in question was clearly beyond the competency of the provincial Legislature. Where there is a reasonable doubt as to the power of the Legislature to pass the Act, it is usually allowed to come into operation, and the persons affected thereby are left to pursue their remedy in the Courts. The British Columbia, Manitoba, and Nova Scotia Rail- Railway way Acts have been disallowed on another ground, viz., that they were contrary to the railway policy of the Dominion. By a clause of the contract between the Government of Canada and the Canadian Pacific Railway Company it is provided :— “That for twenty years from the date hereof, no line of railway shall be authorized by the Dominion Parliament to be constructed south of the Canadian Pacific Railway from any point at or near the Canadian Pacific Railway, except such line as shall run south-west or to the westward of south- 262 DOMINION CONTROL OF THE PROVINCES. west; nor to within fifteen miles of Latitude 49, and in the establishment of any New Province in the North West Territory provision shall be made for continuing such prohibition after such establishment until the expiration of the said period.” The Dominion Government up to the present year has maintained the policy embodied in this contract and has disallowed all provincial Acts incorporating railways forbidden to be constructed by the above clause. Notwithstanding the disallowing of a recent Railway Act the Government of Manitoba proceeded with the construction of a railway, and thereupon the Minister of Justice obtained an injunction against the contractor and the Railway Company practically prohibiting the construction of the line. During the dispute the Manitoba Government petitioned the Queen in Council, urging that a provincial bill ought not to be vetoed so long as it was within the competence of the provincial Legislature. It may be pointed out, that any interference by the Crown with the veto of the Governor-General, exercised on the advice of his responsible advisers, would be distinctly “ unconstitutional” and at variance with the principle of ministerial responsibility. Negotiations, not yet completed, have resulted in an understanding between the Dominion, the Province, and the Pacific Railway Company, by which the Company are to surrender the monopoly in consideration of a money payment. Provincial ~~ As regards the provincial administration the appoint-So ment of the Lieutenant-Governor and the Judges is in the hands of the Governor-General in Council. The Lieutenant-Governor is therefore a Dominion and not a provincial officer and that he is responsible to the Dominion Government for his acts was clearly shewn in the Letellier case', when the + Ante, p. 178. ENFORCING JUDGMENTS. 263 Lieutenant-Governor was removed from his office on the advice of the Canadian Privy Council. The sections of the B. N. A. Act 1867" relating to the appointment and tenure of office by a Lieutenant-Governor, provide that the appointment .shall be by the “Governor-General in Council,” and that he shall hold office during the pleasure of the « Governor-General” Much stress was laid on this distinction in the Letellier case as the then Governor-General was adverse to acting on the advice of his Ministers to remove M. Letellier de St Just. The Colonial Secretary in his despatch pointed out, “ that other powers vested in a similar way by the statute in the Governor-General were clearly intended to be, and in practice are, exercised by and with the advice of his Ministers: and though the position of a Governor-General would entitle his views on such a subject as that under consideration to peculiar weight, yet Her Majesty's Government do not find anything in’ the circumstances which would justify him in departing in this instance from the general rule, and declining to follow the decided and sustained opinion of his Ministers.” The enforcement of the judgments and orders of the Enforcing Supreme Court of Canada in the provinces, is a matter of the oa of greatest importance in view of the fact that the Supreme SrPreme Court may be called upon to decide on the legality of a provincial Act. It is therefore necessary that in all the provinces the. Supreme Court should be represented by its officers, but in order to avoid the cost of maintaining Dominion officers, as well as provincial officers, the plan has been adopted of making the officers of the provincial Courts ex officio officers of the Supreme Court. By section 105 of the Revised Statutes of Canada, 1886, it is enacted that “the process of the Supreme Court and the process of the Exchequer Court shall run throughout Canada and shall be tested in the name of the Chief Justice, or in the case of a L 8s. 58, 59. 264 DOMINION CONTROL OF THE PROVINCES. vacancy in the office of Chief Justice, in the name of the senior puisne Judge of the Court, and shall be directed to the Sheriff of any County or other Judicial division into which any province is divided: and the sheriff of the second respective counties or divisions shall be deemed and taken to be ex officio officers of the Supreme and Exchequer Courts respectively, and shall perform the duties and functions of Sheriffs in connection with the said Courts, and in any case where the Sheriff is disqualified such process shall be directed to any of the coroners of the county or district.” CHAPTER XXI. IMPERIAL CONTROL OVER THE DOMINION. THE legislative powers conferred on the Dominion Parliament and the provincial Legislatures, though of a very wide character, are limited in several ways: (1) they do not exhaust the whole sphere of legislation, (2) they are concurrent with and are not exclusive of the legislative powers of the Imperial Parliament, (3) where an Imperial and a Colonial Statute conflict, the former is to prevail, and (4) the Crown may veto any Act of the Dominion Parliament. Limita~-tions. l. Limitatrons on Domanion Legislation. Though power is given, in general terms, to the Dominion General by section 91 of the B. N. A. Act 1867 “to make laws for Powers. the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces,” yet other sections of this Act and at least one other Act of Parliament, apart from the clauses defining the legislative powers of the Provinces, restrict the powers of the Dominion Parliament. The most important limitations are as follow :—-1. The Dominion has but a limited power of altering its Altering constitution. It may prescribe the qualification of voters fonstitn and regulate the method of election, but it cannot abolish sither House of Parliament, or alter the constitution of the Senate, or affect the veto of the Crown. Even its power of 266 IMPERIAL CONTROL OVER THE DOMINION. altering the number of members of the House of Commons has to be exercised in accordance with certain principles laid down in the Act. A province has greater power to alter its constitution than has the Dominion. Provincial 2. After the Dominion grants a constitution to a new Jonsitis- Province it cannot alter such constitution, Protective 8. The Dominion cannot impose any protective duties duties: as between provinces? 4. The Dominion cannot tax any lands or property belonging to Canada or any Province®, 5. Acts of the Parliament of Great Britain or of the Parliament of Great Britain and Ireland which were in force in any of the provinces at the time of the Union, can be repealed, abolished or altered only by Imperial legislation®, Seat of 6. The seat of the Government can be altered only by Govern- 16 Crown”. Imperial Legislation. 2. Concurrent Power of Legislation. The Imperial Parliament has concurrent legislative power on all matters within the legislative jurisdiction of Canada and its Provinces. It is true that in Holmes v. Temple®, the Judge of the Quebec Sessions held that “exclusive” meant exclusive of the Imperial Parliament, and dismissed a prosecution for persuading a soldier to desert, brought under the Imperial Army Act of 1881, on the ground that the Dominion Parliament had “exclusive ” jurisdiction in matters relating to “militia, military and naval service and defence’;” but the Ontario Court of Queen’s Bench in another case® laid down the true principle, viz. that the word “exclusive” as + 84 Vie. (i.) c. 28, 8, 2. 2 B. N. A. Act 1867, s. 121. $ Ib. 8. 125. 4 Ib. 8. 129. 5 Ib. 8. 16. 38 Quebec Law Reports, 357; 2 Cart. 396. * B.N. A. Act, &. 91 (7). 8 BR. v. College of Physicians and Surgeons of Ontario, 44 U. C. Q. B. 364 ; 1 Cart. 761. LEGISLATION. 267 applied to Dominion powers of legislation in the Act meant exclusive of provincial Legislatures. The facts of the case were as follows: — By section 93 of the British North America Act 1867, « Exclu. power is given to Provincial Legislatures to exclusively lan make laws in relation to Education,” and in 1874 the tion. Ontario Legislature under this clause amended and consolidated the laws relating to the Medical profession in the Province. The year after the passing of the Act of 1867, the Imperial Parliament by the 81 & 32 Vic. c. 79, enacted, that any person registered under the Medical Act of 1858 should upon payment of the fees required, and upon proof of his registration, be entitled to be registered in any Colony of the Crown. In 1879 a medical practitioner duly registered under the Imperial Act applied to the College of Physicians and Surgeons of Ontario to be registered in the Province. The College refused to do so, and in the subsequent legal proceedings it was urged, that by the 93rd section of the Act 1867 the registration of doctors was within the exclusive jurisdiction of the provinces, and that the Imperial Act could only be taken to apply where there was no provincial legislation. In giving the judgment of the Court, Hagarty, C. J., remarked, “The case of the defendants was argued in a very fair and candid spirit admitting, as of course was necessary with the Federation Act before us, that if the Imperial Parliament distinctly legislate for us they can do so notwithstanding any previous enactment or alleged surrender of the power of exclusive legislation on any subject. But it was ably urged that as the subject of Education was one in which the exclusive right was given to the Province, we should read the Imperial Act as not interfering with the right so granted. To this it may be argued that where the Federation Act speaks of any such exclusive right, it means exclusive as opposed to any attempt to legislate by the Dominion Parliament.” 268 IMPERIAL CONTROL OVER THE DOMINION. A similar view was expressed in Smiles v. Belford" in regard to. the Dominion power of legislating on copyright, which by section 91 of the Act of 1867 is placed within the “exclusive” jurisdiction of the Dominion Parliament and yet was affected by Imperial Acts passed after the Union. Loportal The following are some of the chief Acts passed since the passed Union by the Imperial Parliament relating to Canada. pines Merchant Shipping Acts, 82 & 33 Vic. c. 11; 84 & 35 Vic. c. 110; 89 & 40 Vic. c. 80; 43 & 44 Vic. c. 16; Ib. c. 18; Ib. c. 22; Ib. c. 43; 45 & 46 Vic. c. 76; 46 & 47 Vic. c. 41. Naturalisation Acts, 33 & 34 Vie, c. 14; 33 & 34 Vic. c. 102. Extradition Act, 33 & 84 Vie. c. 52. Foreign Enlisttnent Act, 33 & 34 Vie, c. 90. Act relating to Treaty of Washington, 35 & 36 Vic. c. 45. The Courts Colonial Jurisdiction Act, 837 & 38 Vic. c. 27, Canada Copyright Act, 38 & 39 Vic. c, 53, Unseaworthy Ships Act, 38 & 39 Vic. c. 88. Confirmation of Marriages on Her Majesty's Ships Act, 12 & 43 Vie. c. 29. Shipping Casualties Investigations Act, 42 & 43 Vic. c. 72. Fugitive Offenders Act, 44 & 45 Vie. e. 69. Companies Colonial Registers Act, 46 & 47 Vie. c. 30. Colonial Prisoners’ Removal Act, 47 & 48 Vic. ¢, 31. Submarine Telegraph Act, 48 & 49 Vic. ¢. 49. Evidence by Commission Act, 48 & 49 Vic, ¢. 74, Copyright Act, 49 & 50 Vic. c. 33. Medical Act 1886, 49 & 50 Vie, c, 48. Submarine Telegraphs Act, 50 Vic. ¢. 8. Veto of Crown. 8. Powers of the Crown. (a). ProviNcIAL BILLs, The Crown has no power of vetoing a provincial bill. Power is given to a Lieutenant-Governor, when a bill is 1 1 Ont. App. Rep. 436: 1 Cart. 576. PROVINCIAL BILLS. 269 presented to him for his assent, to reserve the same for the signification of the pleasure of his Excellency the Governor-General> If within one year from the date of such reservation the Governor-General does not issue a proclamation intimating that it has received his assent, the bill never comes into force®. Instead of reserving the bill the Lieutenant-Governor Resermay assent to it, but the Governor-General has the power vation: to disallow the bill at any time within one year from its passing. If the Governor-General does not disallow the Act within such year then it can be questioned only in an action in which it is alleged that the subject-matter was not within the legislative powers of the province. It is however open to the Governor-General to com- Consultmunicate with the Imperial Government in regard to the 2 Bowe disallowance of a provincial law. For instance, when the mont Ontario Legislature passed an Act conferring upon the Legislative Assembly the same privileges as those enjoyed by the Dominion House of Commons, the competency of the Legislature to pass this Act was doubted, and on the recommendation of the Dominion Minister of Justice, the question was referred to the English law officers of the Crown. They were of opinion that the Act was ultra vires, and it was therefore disallowed by the Governor-General in Council®. Attempts have been made in several cases by the Attempts Dominion House of Commons, and by parties interested in Tora provincial legislation, to persuade the Imperial Government to interfere with provincial legislation. When New Brunswick in 1871 passed an Act relating to common schools, not only did the Dominion House of Commons ask the Governor-(General to take the opinion of the law officers of the Crown 1 B.N. A, Act, 5. 90. Todd, p. 365. 2 Ib. 3 See ante, 165. 270 IMPERIAL CONTROL OVER THE DOMINION. on the validity of the Act, but they applied through the Governor-General to the Privy Council for its opinion. The law officers reported in favour of the Act, and on the ground that the power of confirming or disallowing provincial Acts was vested by law absolutely and exclusively in the Governor-General’, the Lord President of the Council declined to interfere. Governor- The legality of the Act was upheld by the Supreme Court renoral of New Brunswick, but notwithstanding this, the Dominion consult House of Commons asked the Governor-General to disallow Govern: certain other statutes amending the Act in question. At bhe request of his Ministers the Governor-General laid the whole matter before the Imperial Government, and the Secretary of State for the Colonies replied, that as the Acts in question were within the powers of the local legislature, they ought to be allowed to remain in force and could not be interfered with by the Dominion House of Commons? Petitions It is a standing rule of the Colonial service that all oi ioct communications from a Colony should be transmitted to the horera- Imperial Government through the Governor, and when a petition against an Act of Ontario granting special privileges to an Orange Society was presented to the Colonial Secretary, it was forwarded to the Governor-General. The Colonial Secretary in acknowledging the petition laid down the principle, “that it is contrary to established constitutional procedure for Her Majesty's Government to interfere unless in very special circumstances with such legislation as is within she competency of a provincial Legislature®.” The rule may be taken as established—that, except in very special or extraordinary circumstances, the Home Government will not recommend the Governor-General to disallow a provincial Act that falls within the matters over which the Provinces have full jurisdiction. ! Todd, p. 347; Can. Sess. Pap. 1877, No. 89, p. 348. Todd, p. 348; Can. Sess. Pap. 1874, No. 25, p. 8. 3 3 Todd, p. 857. DOMINION BILLS. 27 | (b). DOMINION BILLS, When a bill has passed the Dominion Parliament it is presented to the Governor-General for the Queen's assent. Instead of assenting to the bill, he may reserve the bill for the signification of Her Majesty's pleasure. If he assents to the bill, he is required to transmit a copy to one of her Majesty's Secretaries of State, and if the Queen in Council within two years after the receipt thereof by the Secretary of State disallows the Act, it is annulled from the date of such signification. The Imperial Government has therefore full control over Dominion legislation. The power of the Governor-General to assent to bills is, by the B. N. A. Act, s. 55, limited by his instructions. Previous to 1878 the instructions required him, in the case of certain bills, not to assent to the bill except in case of urgent necessity, unless there was a clause suspending the operation of the bill, until Her Majesty’s pleasure could be signified. In accordance with these instructions the Governor-General reserved twenty-one bills between the years 1867 and 1878. Eleven of these related to divorce and received the royal assent. In 1872 a Copyright Bill was not approved, as it conflicted with imperial legislation. Two Extradition Bills were not allowed in 1873 and 1874. A Merchant Shipping Bill was disallowed in 1878, as it contained provisions in excess of Dominion powers, whilst a reserved bill that might have prejudiced the rights of subjects not resident in Canada was dropped in 1874, and a modified bill passed in the following year’. In the revised instructions issued in 1878 the clauses Modern relating to the reservation of bills were omitted, “because peenties her Majesty’s Government thought it undesirable that they should contain anything which could be interpreted as 1 See Todd, p. 144. 272 IMPERIAL CONTROL OVER THE DOMINION, limiting or defining the legislative powers conferred in 1867 on the Dominion Parliament?” Since 1878 it has not been the custom to reserve bills, as it is understood that the statutory power to disallow any bill within two years is sufficient for all purposes. A reserved bill has no force until the Governor-General signifies by speech or message to the Dominion Parliament or by proclamation that it has received Her Majesty’s assent? Disallow- The B. N. A. Act, s. 56, requires the Governor-General to ii send to a Secretary of State by the first convenient opportunity an authentic copy of every Act to which he assents ; and a Dominion Act® requires the Clerk of Parliaments to certify and deliver to the Governor-General a bound copy of the Statutes for transmission to one of the Secretaries of State, together with certified copies of all reserved bills. t Can. Sess. Pap. 1877, No. 3; Burinot, p. 573. B. N. A. Act, s. 57, 3 35 Vie, ¢. 1, 8. 4. APPENDIX. PAGE 275 278 Terms of Union British Columbia 813 Terms of Union Prince Edward Island . 318 Terms of Surrender of North West Territories . 322 Imperial Act respecting Establishment of Provinces (34 and 35 Vie. ¢. 28) 325 Imperial Act as to Privileges (38 and 39 Vic. c. 38) . . . . 827 Imperial Act as to representation of the N.W. Territories in Parliament (49 and 50 Vic. ¢. 85) . . s . Letters Patent constituting the office of Governor-General | . Instructions . 328 330 334 Commission 3317 GOVERNORS-GENERAL AND LIEUTENANT-GOVERNORS. GoVERNORS-GENERAL. Up to 1791. 1765 (en. James Murray. 1766 Gen. Sir Guy Carleton. 1785 (Gen. Frederick Haldemand. From 1797. Lower CANADA. 1797 Major Gen. Prescott. 1808 Sir James Craig. 1811 3ir George Prevost. 1813 3ir George Drummond. 1816 Sir John Cope Sherbrooke. 1818 Duke of Richmond. 1819 Sir Peregrine Maitland. 1820 [Earl of Dalhousie. 1828 3ir James Kempt. 1815 1830 Lord Aylmer. 1818 1835 Lord Gosford. 1828 1838 Earl of Durham. 1836 1838. Sir James Colborne. 1838 1839 Lord Sydenham. 1792 1796 1799 1806 1812 1812 Urper CANADA. (. Simcoe. P. Russel (Ad.). Gen. P. Hunter. Francis Gore. Gen. Brock (Ad.). Gen. Sheafe (Ad.). Gen. Murray (Ad.). Gen. Robinson (Ad.). Francis Gore. 3ir Peregrine Maitland. 3ir John Colborne. Sir Francis Bond Head Sir George Arthur. Since 1840. 1842 Sir Chas. Bagot. 1843 Sir Chas. Metcalfe. 1845 Earl Cathcart. 1847 Earl of Elgin. i855 Sir Edmund Walker Head. 1861 Lord Monck. 1867 1868 1872 1878 1883 1888 Since 1867. Viscount Monck. Lord Lisgar. Earl of Dufferin. Marquis of Lorne. Marquis of Lansdowne. Lord Stanley of Preston. | 8—v 276 APPENDIX. LI1EUTENANT-GOVERNORS OF QUEBEC. Since 1867. 1867 Sir N. F. Belleau. 1873 R. E. Caron. 1876 Letellier de St Just. 1879 Dr T. Robitaille. 1884 L. F. R. Masson. 1887 A. R. Angers. LiEuTENANT-GOVERNORS OF ONTARIO. Since 1867. 1867 Gen. Stisted (Ad.). 1868 W. P. Howland. 1873 John Crawford. 18756 D. A. MacDonald. 1880 J. B. Robinson. L887 Sir A. Campbell, Nova Scotia. 1710 Col. Vetch. 1714 Gen. Nicholson. 1719 Gen. Philips. 1725 Col. L. Armstrong. 1740 Cap. P. Mascarene, 1749 Lord Cornwallis. 1752 V. Hopson. 1754 Major Lawrence, 1756 A. Moulton. 1760 J. Belcher. 1764 Col. M. Wilmot. 1783 P. Fanning. 1791 R. Bulkeley. 1792 J, Wentworth. 1808 Sir G. Prevost. 1811 Sir J. Sherbrooke. 1811 Gen. Daroch. 1816 Gen. Smyth. 1819 Earl of Dalhousie. 1820 Sir J. Kempt. 1826 M. Wallace. 1836 Sir G. Campbell. 1840 Lord Falkland. 1846 Sir J. Harvey. 1852 Sir G. L. Marchant. [858 Earl of Mulgrave. [864 Sir R. G. MacDonnell. 1865 Gen. Sir W. F. Williams. 1867 Gen, Williams (Ad.). 1867 Gen. Doyle, 1870 Sir E. Kenny (acting). 1873 J. Howe. 1873 A. G. Archibald, Q.C. 1883 M. H. Richey. 1888 A. W. McLean. NEw BRUNSWICK. 1786 Guy Carleton. 1787 E. Winslow. 1788 Lt. Col. Johnston. 1809 Gen. M. Hunter. 1811 Gen. W. Balfour. 1812 Gen. Geo. 8. Smyth, 1823 Ward Chapman. 1824 J. M. Bliss. 1825 Gen. Sir H. Douglass. 1831 Gen. Sir A. Campbell (Ad.). 1837 Gen. Sir J. Harvey. 1841 Col, Sir W. Colbrooke. 1848 Sir E. Head. 1854 Hon. J. H. Sutton. 1861 Hon. A. H. Gordon, 1866 Maior-Gen. H. Doyle, 1867 Lieut-Gen. Sir H. Doyle, 1867 Col. F. P. Harding, 1868 L. A. Wilmot. 1873 8. L. Tilley. 1878 E. B. Chandler, ).C. 1880 R. D. Wilmot. 1885 Sir 8. L. Tilley. GOVERNORS. 2177 MANITOBA. 1870 A. (. Archibald 1873 A. Morris. 1879 J. E. Cauchon. 1882 J. Cox Aikins. 1888 J. C. Schultz. Britise COLUMBIA. VaNeOUVER ISLAND. 1849 R. Blanshard. 1859 James Douglass. 1851 186 of James Douglass. 1864 Captain Kennedy. BrimisgE CoLUMBIA. BriTisHE COLUMBIA AND VANCOUVER ISLAND. 1866 H. Seymour. 1881 C. F. Cornwall. 1871 J. W, Trutch, 1887 Hugh Nelson. 1876 A. N. Richards. Prince Epwarp ISLAND. 1770 Walter Patterson. 1786 Lieut.-Gen, Edmund Fanning. 1805 Col. J. F. W, DesBarres. 1813 Charles Douglas Smith. 1824 Col. John Ready. 1831 Sir Aretes W. Young. 1836 Sir John Harvey. 1837 Sir Chas. Augustus Fitzroy. 1841 Sir Henry Vere Huntley. 1847 Sir Donald Campbell. 1851 Sir Alex. Bannerman. 1854 Sir Dominick Daly. 1859 George Dundas. 1870 Sir Wm. F. C. Robinson. 1874 Sir Robert Hodgson (administrator). 1879 Hon. Thomas Heath Haviland, Q.C. 1884 A. A. Macdonald. NorrH-WEST TERRITORIES. 1870 A. G. Archibald. ig72 TF. G. Johnston. A Morris. 1876 D. Laird. 1881 Edgar Dewdney. 1888 Joseph Royal. THE BRITISH NORTH AMERICA ACT, 1867. 30 and 31 Vie. ¢. 8. An Act for the Union of Canada, Nova Scotia, and New Brunswick, and the Government thereof; and Jor purposes connected therewith. [29 March, 1867.1 VV ineas the Provinces of Canada, Nova Scotia, and New Brunswick, have expressed their desire to be federally united into one Dominion under the Crown of the United Kingdom of Great Britain and Ireland, with a Constibution similar in principle to that of the United Kingdom : 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 it is expedient, not only that the Constitution of the Legislative authority in the Dominion be provided for, but also that the nature of the Executive Government therein be declared : And whereas it is expedient that provision be made for the eventual admission into the Union of other parts of British North America: Be it therefore enacted and declared by the Queens 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 \— T.— PRELIMINARY. Short 1. This Act may be cited as “The British North America Title. Act, 1867.” Applica- + 2. The provisions of this Act referring to Her Majesty the App. P g jesty iki TN Queen, extend also to the heirs and successors of Her Majesty, referring Kings and Queens of the United Kingdom of Great Britain and bo the Ireland. Queen. THE BRITISH NORTH AMERICA ACT, 1867. 279 TI. —TUNION. 3. Tt shall be lawful for the Queen, by and with the advice Declaraof Her Majesty’s Most Honourable Privy Council, to declare Sa by Proclamation 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 under that name accordingly. The subsequent provisions of this Act shall, unless it is Construey 3 : tion of otherwise expressed or implied, commence and have effect on and gyhge. after the Union, that is to say, on and after the day appointed quent pro for the Union taking effect in the Queen’s Proclamation ; and in i of the same provisions, unless it is otherwise expressed or implied, the name Canada shall be taken to mean Canada as constituted under this Act. 1 5. Canada shall be divided into four Provinces, named On- Four Protario. Quebec, Nova Scotia, and New Brunswick. TRA 6. The parts of the Province of Canada (as it exists at the Provinces passing of this Act) which formerly constituted respectively the of 2 ae Provinces of Upper Canada and Lower Canada shall be deemed bec. to be severed, and shall form two separate Provinces. The part whieh 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. Provinces 7. The Provinces of Nova Scotia and New Brunswick shall of Nova have the same limits as at the passing of this Act. ad and 8. In the general census of the population of Canada which An d is hereby required to be taken in the year One thousand eight Decennial hundred and seventy-one, and in every tenth year thereafter, the Census. respective populations of the four Provinces shall be distinguished. TIT. ExgcuTIvE POWER. Declara-9. The Executive Government and authority of and over fon a, v . * . xecutive Canada is hereby declared to continue and be vested in the Queen. power Ww the Queen. 230 APPENDIX, Applica- 10. The provisions of this Act referring to the Governoror General extend and apply to the Governor-General for the time refer- being of Canada, or other the Chief Executive Officer or Admini-Janta strator for the time being carrying on the Government of Canada General. on behalf and in the name of the Queen, by whatever title he is designated. Constitution of Privy Council for Canada. 11. There shall be a Council to aid and advise in the Govern. ment of Canada, to be styled the Queen’s Privy Council for Canada ; and the persons who are to be Members of that Council shall be from time to time chosen and summoned by the Governor-General and sworn in as Privy Councillors, and Members thereof may be from time to time removed bv the Governor-General All powers 12. All powers, authorities, and functions which under any Snger dats Act of the Parliament of Great Britain, or of the Parliament of cised by the United Kingdom of Great Britain and Ireland, or of the Governor. Legislature of Upper Canada, Lower Canada, Canada, Nova with Scotia, or New Brunswick, are at the Union vested in or exerbates? of cisable by the respective Governors or Lieutenant Governors of Council or those Provinces, with the advice, or with the advice and consent, gloss. of the respective Executive Councils thereof, or in conjunction with those Councils, or with any number of Members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same continue in existence and capable of being exercised after the Union in relation to the Government of Canada, be vested in and exercisable by the Governor-General with the advice or with the advice and consent of or in conjunction with the Queen's Privy Council for Canada, or any Members thereof, or by the Governor-General individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the Parliament of Canada Applica- 13. The provisions of this Act referring to the Governor i General in Council shall be construed as referring to the Governorrefer- General acting by and with the advice of the Queen’s Privy mgt Council for Canada. (teneral in Council. THE BRITISH NORTH AMERICA ACT, 1867. 281 14. Tt shall be lawful for the Queen, if Her Majesty thinks Power to . . 3 Her fit, to authorize the Governor-General from time to time tO Majesty to appoint any person or any persons, jointly or severally, to be his Anan deputy or deputies within any part or parts of Canada, and in Gonoral that capacity to exercise, during the pleasure of the Governor- to appoint General, such of the powers, authorities, and functions of the Dernier, Governor-General, as the Governor-General deems it necessary or expedient to assign to him or them, subject to any limitations or directions expressed or given by the Queen ; but the appointment of such a deputy or deputies shall not affect the exercise by the Governor-General himself of any power, authority, or function. Command 15. The Command-in-Chief of the Land and Naval Militia, 3 drag and of all Naval and Military Forces, of and in Canada, is hereby iy declared to continue and be vested in the Queen. to be vested in the Queen. Seat of Government of Canada. IV. LEGISLATIVE POWER. 17. There shall be one Parliament for Canada, consisting of Constitu. the Queen, an Upper House styled the Senate, and the House of Poa Commons. ment of Canada. 18. The privileges, immunities, and powers to be held, enjoyed, and exercised by the Senate and by the House of Commons, and by the Members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed, and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and bv the Members thereof. ( Repealed by 30 & 31 Vie c. 3.) 19. The Parliament of Canada shall be called together not later than six months after the Union. Privileges. &e., of Bonses. First Session of the Parliament of Canad. 90. There shall be a Session of the Parliament of Canada Yearly once at least in every year, so that twelve months shall not inter- Session of ene between the last sitting of the Parliament in one Session oi and its first sitting in the next Session. Canada. wry = 49 APPENDIX. The Senate. Number of ~~ 21, The Senate shall, subject to the provisions of this Act, Bovators, consist of seventy-two Members. who shall be styled Senators. Represen- 22. In relation to the constitution of the Senate, Canada i shall be deemed to consist of three divisions — un Senate. 1. Ontario: 2. Quebec: 3. The Maritime Provinces, Nova Scotia and New Brunswick ; which three divisions shall (subject to the provisions of this Act) be equally represented in the Senate as follows :— Ontario by Twenty-four Senators; Quebec by Twenty-four Senators: and the Maritime Provinces by Twenty-four Senators, Twelve thereof representing Nova Scotia, and Twelve thereof epresenting New Brunswick. In the case of Quebec each of the twenty-four Senators representing that Province shall be appointed for one of the twenty-four Electoral Divisions of Lower Canada specified in Schedule A to Chapter One of the Consolidated Statutes of Tanada. i 23. The qualification of a Senator shall be as follows :— Senators. (1) He shall be of the full age of Thirty years ; (2) He shall be either a natural-born subject of the Queen, or a subject of the Queen naturalized by an Act of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, or of the Legislature of one of the Provinces of Upper Canada, Lower Canada, Canada, Nova Scotia, or New Brunswick, oefore the Union, or of the Parliament of Canada after the Union : He shall be legally or equitably seised as of freehold for his own use and benefit of lands or tenements held in free and common socage, or seised or possessed for his own use and benefit of lands or tenements held in francalleu or in roture, within the Province for which he is appointed, of the value of Four thousand dollars, over and above all rents, dues, debts, charges, mortgages, and incumbrances due or payable out of or charged on or affecting the same : THE BRITISH NORTH AMERICA ACT, 1867. 283 (4) His real and personal property shall be together worth Four thousand dollars over and above his debts and liabilities : Ie shall be resident in the Province for which he is appointed : In the case of Quebec he shall have his real property qualification in the Electoral Division for which he is appointed, or shall be resident in that Division. (5) (6) 94. The Governor-General shall from time to time, in the Summons Queen’s name by Instrument under the Great Seal of Canada, efpnsier. summon qualified persons to the Senate; and, subject to the provisions of this Act, every person so summoned shall become and be a member of the Senate and a Senator. 95. Such persons shall be first summoned to the Senate as Summons the Queen by Warrant under Her Majesty's Royal Sign Manual 2 Fv thinks fit to approve, and their names shall be inserted in the Senators. Queen's Proclamation of Union. 96. If at any time, on the recommendation of the Governor- Addition (teneral, the Queen thinks fit to direct that three or six Members of Sena- , be added to the Senate, the Governor-General may by summons tain cases. bo three or six qualified persons (as the case may be), representing equally the three divisions of Canada, add to the Senate accordingly. 97. In case of such addition being at any time made the Reduction Governor-General shall not summon any person to the Senate, % Sonnts . ; . 0 normal except on a further like direction by the Queen on the like number. recommendation, until each of the three divisions of Canada is represented by twenty-four Senators and no more, 98. The number of Senators shall not at any time exceed seventv-eight. Maximum number of Senators. 99. A Senator shall, subject to the provisions of this Act, hold his place in the Senate for life. Tenure of place in Jansate. 30. A Senator may by writing under his hand, addressed to the Governor-General, resign his place in the Senate, and thereupon the same shall be vacant. Resignation of place in Senate. 28 4 APPENDIX. Disqualifi- ~~ 31. The place of a Senator shall become vacant in any of the gation of following cases :—. Senators. (1) If for two consecutive Sessions of the Parliament he fails to give his attendance in the Senate: If he takes an oath or makes a declaration or acknowledgment of allegiance, obedience, or adherence to a Foreign Power, or does an act whereby he becomes a Subject or Citizen, or entitled to the rights or privileges of a Subject or Citizen of a Foreign Power : If he is adjudged bankrupt or insolvent, or applies for she benefit of any law relating to insolvent debtors, or becomes a public defaulter : If he is attainted of treason or convicted of felony or of any infamous crime : If he ceases to be qualified in respect of property or of residence ; provided that a Senator shall not be deemed to have ceased to be qualified in respect of residence by reason only of his residing at the Seat of the Government of Canada while holding an office under that Government requiring his presence there. Sa 32. When a vacancy happens in the Senate by resignation, cancy in death, or otherwise, the Governor-General shall by summons to a Senate. ft and qualified person fill the vacancy. Questions as to 33. If any question arises respecting the qualification of a i Senator, or a vacancy in the Senate, the same shall be heard and Vacancies determined bv the Senate, in Senate. (4) Appoint- 34. The Governor-General may from time to time, by ment of ip ctiment under the Great Seal of Canada, appoint a Senator to Speaker of X Senate. be Speaker of the Senate, and may remove him and appoint another in his stead. Quorumof 35. Until the Parliament of Canada otherwise provides, the Benghe. presence of at least fifteen Senators, including the Speaker, shall be necessary to constitute a meeting of the Senate for the exercise of its powers. Voting in Senate. 36. Questions arising in the Senate shall be decided by a majority of voices, and the Speaker shall in all cases have a vote, and when the voices are equal the decision shall be deemed to be in the negative. THE BRITISH NORTH AMERICA ACT, 1867. 285 The House of Commons. 37. The House of Commons shall, subject to the provisions of Yensisthis Act, consist of One hundred and eighty-one Members, of House of whom eighty-two shall be elected for Ontario, Sixty-five for Commons Quebec, Nineteen for Nova Scotia, and Fifteen for New Bruns- in Canada. wick. 38. The Governor-General shall from time to time, in the Summon-Queen’s name, by Instrument under the Great Seal of Canada, ing of of summon and call together the House of Commons. Commons. Senators 39. A Senator shall not be capable of being elected or of not to sit sitting or voting as a Member of the House of Commons. a Flouse mons. 40. Until the Parliament of Canada otherwise provides, Electoral Ontario, Quebec, Nova Scotia and New Brunswick, shall, for the Districts purposes of the Election of Members to serve in the House of of the four Commons, be divided into Electoral Districts as follows i — 1. ONTARIO. Ontario shall be divided into the Counties, Ridings of Counties, Cities, Parts of Cities, and Towns enumerated in the First Schedule to this Act, each whereof shall be an Electoral District, each such District as numbered in that Schedule being entitled to return one Member. 2. QUEBEC. Quebec shall be divided into Sixty-five Electoral Districts, composed of the Sixty-five Electoral Divisions into which Lower Canada is, at the passing of this Act, divided under Chapter Two of the Consolidated Statutes of Canada, Chapter Seventy-five of the Consolidated Statutes for Lower Canada, and the Act of the Province of Canada of the Twenty-third Year of the Queen, Chapter One, or any other Act amending the same in force at the Union, so that each such Electoral Division shall be for the purposes of this Act an Electoral District entitled to return One Member. 3 NOVA SCOTIA. Each of the Eighteen Counties of Nova Scotia shall be an Electoral District. The County of Halifax shall be entitled to 286 APPENDIX. return Two Members, and each of the other Counties One Member, Continuance of axisting Election Laws until Parliaalent of Canadas otherwise provides. 4. NEW BRUNSWICK. Each of the Fourteen Counties into which New Brunswick is divided, including the City and County of St John, shall be an Electoral District. The City of St John shall also be a separate Electoral District. Each of those Fifteen Electoral Districts shall be entitled to return One Member. 41. Until the Parliament of Canada otherwise provides, all laws in force in the several Provinces at the Union relative to the following matters or any of them, namely :—The qualifications and disqualifications of persons to be elected or to sit or vote as Members of the House of Assembly or Legislative Assembly in the several Provinces ; the Voters at Elections of such Members } she oaths to be taken by Voters; the Returning Officers, their powers and duties; the proceedings at Elections; the periods during which Elections may be continued; the trial of controverted Elections, and proceedings incident thereto ; the vacating of seats of Members, and the execution of new Writs in case of seats vacated otherwise than by dissolution,—shall respectively apply to Elections of Members to serve in the House of Commons for the same several Provinces. Provided that, until the Parliament of Canada otherwise provides, at any Election for a Member of the House of Commons for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British Subject, aged Twenty-one years or upwards, being a householder, shall have a vote. Writs for 42. For the first Election of Members to serve in the House first of Commons, the Governor-General shall cause Writs to be issued Election. . . by such person, in such form, and addressed to such Returning Officers as he thinks fit. The person issuing Writs under this Section shall have the like powers as are possessed at the Union by the Officers charged with the issuing of Writs for the Election of Members to serve in the respective House of Assembly or Legislative Assembly of the Province of Canada, Nova Scotia, or New Brunswick ; and the Returning Officers to whom Writs are directed under this Section shall have the like powers as are possessed at the Union by the Officers charged with the Returning of Writs for the Election of THE BRITISH NORTH AMERICA ACT, 1867. 287 Members to serve in the same respective House of Assembly or Legislative Assembly. 43. Tn case a vacancy in the representation in the House of As to Commons of any Electoral District happens before the meeting of ol the Parliament, or after the meeting of the Parliament before provision is made by the Parliament in this behalf, the provisions of the last foregoing Section of this Act shall extend and apply to the issuing and returning of a Writ in respect of such vacant District. 44, The House of Commons on its first assembling after a a a General Election shall proceed with all practicable speed, to elect of Speaker one of its members to be Speaker. gf foe 45. In case of a vacancy happening in the office of Speaker by As to death, resignation, or otherwise, the House of Commons shall, Aner with all practicable speed, proceed to elect another of its members in office of Lo be Speaker. Speaker. 46. The Speaker shall preside at all meetings of the House of Speaker to Commons. preside. A7 Until the Parliament of Canada otherwise provides, in Provision case of the absence for any reason of the Speaker from the chair Hoan al of the House of Commons for a period of forty-eight consecutive Speaker. hours, the House may elect another of its members to act as Speaker, and the Member so elected shall, during the continuance of such absence of the Speaker, have and execute all the powers, privileges, and duties of Speaker. 48. The presence of at least Twenty Members of the House Quorum of of Commons shall be necessary to constitute a meeting of the House of House for the exercise of its powers; and for that purpose the Speaker shall be reckoned as a. Member. 49. Questions arising in the House of Commons shall be Voting in decided by a majority of voices other than that of the Speaker, and Yousent when the voices are equal, but not otherwise. the Speaker shall ’ have ga vote. 50. Every House of Commons shall continue for Five Years Duration from the day of the return of the Writs for choosing the House of Houseof (subject to be sooner dissolved by the Governor-General), and no longer. Decennial Re-adjustment of Representation 288 APPENDIX. 51. On the completion of the census in the year One thousand eight hundred and seventy-one, and of each subsequent decennial census, the representation of the four Provinces shall be re-adjusted by such authority, in such manner, and for such time, as the Parliament of Canada from time to time provides, subject and according to the following rules: — (1) Quebec shall have the fixed number of Sixty-five members : There shall be assigned to each of the other Provinces such a number of Members as will bear the same proportion to the number of its population (ascertained at such census) as the number sixty-five bears to the number of the population of Quebec (so ascertained): In the computation of the number of Members for a Province a fractional part not exceeding one-half of the whole number requisite for entitling the Province to a Member shall be disregarded; but a fractional part exceeding one-half of that number shall be equivalent to the whole number : On any such re-adjustment the number of Members for a Province shall not be reduced unless the proportion which the number of the population of the Province bore to the number of the aggregate population of Canada at the then last preceding re-adjustment of the number of Members for the Province is ascertained at the then latest census to be diminished by one-twentieth part or upwards : Such re-adjustment shall not take effect until the termination of the then existing Parliament. (4) Increaseof ~~ 52. The number of Members of the House of Commons may Shae 3 ! be from time to time increased by the Parliament of Canada, Jommons. provided the proportionate representation of the Provinces prescribed by this Act is not thereby disturbed. Money Votes ; Royal Assent. Appropriation and Tax Bills, 53. Bills for appropriating any part of the Public Revenue, or for imposing any tax or impost, shall originate in the House of Commons. THE BRITISH NORTH AMERICA ACT, 1867. 289 54. Tt shall not be lawful for the House of Commons to Recomadopt or pass any Vote, Resolution, Address, or Bill for the Hendy, appropriation of any part of the Public Revenues, or of any Tax money or Impost, to any purpose that has not been first recommended votes. to that house by Message of the Governor-General in the Session in which such Vote, Resolution, Address or Bill is proposed. 55. Where a Bill passed by the Houses of Parliament is Royal presented to the Governor-General for the Queen's assent, he Amn shall declare, according to his discretion, but subject to the provisions of this Act and to Her Majesty's Instructions, either that he assents thereto in the Queen’s name, or that he withholds the Queen's assent, or that he reserves the Bill for the signification of the Queens pleasure. 56. Where the Governor-General assents to a Bill in the Disallow-Queen’s name, he shall by the first convenient opportunity, send i an authentic copy of the Act to one of Her Majesty's Principal Council Secretaries of State, and if the Queen in Qouncil within two years a as a after receipt thereof by the Secretary of State thinks fit to disallow to by the Act, such disallowance (with a certificate of the Secretary of iin State of the day on which the Act was received by him) being ’ signified by the Governor-General, by Speech or Message to each of the Houses of Parliament, or by Proclamation, shall annulthe Act from and after the day of such signification. 57. A Bill reserved for the signification of the Queen's Significapleasure shall not have any force unless and until within two ob years from the day on which it was presented to the Governor- pleasure General for the Queen’s Assent, the Governor-General signifies, mB by Speech or Message to each of the Houses of Parliament, or by Proclamation, that it has received the Assent of the Queen in Council. An entry of every such Speech, Message, or Proclamation shall be made in the Journal of each House, and a duplicate thereof duly attested shall be delivered to the proper Officer to be kept among the Records of Canada. V. ProviNciAL CONSTITUTIONS. Fxecutive Power. 58. Tor each Province there shall be an officer, styled the Appoint. Lieutenant-Governor, appointed by the Governor-General in ph o Council by Instrument under the Great Seal of Canada. tenant-(9 Governors. Tenure of office of Lieutenant- 2 ") APPENDIX. 59. A Lieutenant-Governor shall hold office during the pleasure of the Governor-General; but any Lieutenant-Governor appointed after the commencement of the first Session of the Parliament of Canada shall not be removable within five years from his appointment, except for cause assigned, which shall be communicated to him in writing within one month after the order for his removal is made, and shall be communicated by Message to the Senate and to the House of Commons within one week thereafter if the Parliament is then sitting, and if not, then within one week after the commencement of the next Session of the Parliament. Salaries of ~~ 60. The Salaries of the Lieutenant-Governors shall be fixed Li and provided by the Parliament of Canada. Governors. Oaths, &e., 61. Every Lieutenant-Governor shall, before assuming the oF Lion duties of his office, make and subscribe before the Governor-Governor. General, or some person authorized by him, Oaths of Allegiance and Office similar to those taken bv the Governor-General. Applica- 62. The provisions of this Act referring to the Lieutenanttant Governor extend and apply to the Lieutenant-Governor for the reforring time being of each Province, or other the Chief Executive Officer to Lieu © or Administrator for the time being carrying on the Government Governor. of the Province, by whatever title he is designated. Appoint- 63. The Executive Council of Ontario and of Quebec shall mont of | be composed of such persons as the Lieutenant-Governor from Officersfor time to time thinks fit, and in the first instance of the following Ufarie Officers, namely: the Attorney-General, the Secretary and Regis-(uebee. trar of the Province, the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, with in Quebec, the Speaker of the Legislative Council. and Solicitor-General. Executive 64. The Constitution of the Executive Authority in each of Gv the Provinces of Nova Scotia and New Brunswick shall, subject Nova to the provisions of this Act, continue as it exists at the Union ip until altered under the authority of this Act. Bruns. wick. THE BRITISH NORTH AMERICA ACT, 1867. 291 65. All powers, authorities, and functions which under any Powers to Act of the Parliament of Great Britain, or of the Parliament of a the United Kingdom of Great Britain and Ireland, or of the Lieu-Legislature of Upper Canada, Lower Canada, or Canada, were or Sa are before or at the Union vested in or exercisable by the re- of Ontario spective Governors or Lieutenant-Governors of those Provinces, os Quire with the advice, or with the advice and consent, of the respective vice or Executive Councils thereof, or in conjunction with those Councils, sone: or with any number of Members thereof, or by those Governors or Lieutenant-Governors individually, shall, as far as the same are capable of being exercised after the Union in relation to the Government of Ontario and Quebec respectively, be vested in and shall or may be exercised by the Tieutenant-Governor of Ontario and Quebec respectively, with the advice, or with the advice and consent of, or in conjunction with the respective Executive Councils or any Members thereof, or by the Lieutenant-Governor individually, as the case requires, subject nevertheless (except with respect to such as exist under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland) to be abolished or altered by the respective Legislatures of Ontario and Quebec. 66. The provisions of this Act referring to the Lieutenant Governor in Council shall be construed as referring to the Lieutenant-Governor of the Province acting by and with the advice of the Executive Council thereof. Applica tion of provisions referring to Lieutenant- in Council. 67. The Governor-General in Council may from time to time Adana. appoint an Administrator to execute the office and functions of absence, Tieutenant-Governor during his absence, illness, or other in- i, ability. lenant-Governor, 68. Unless and until the Executive Government of any Seats of Province otherwise directs with respect to that Province, the Provincial seats of Government of the Provinces shall be as follows, namely, ments. — of Ontario, the City of Toronto; of Quebec, the City of Quebec; of Nova Scotia, the City of Halifax : and of New Brunswick, the City of Fredericton. fj 292 APPENDIX. Legislative Power. I. ONTARIO. Legisla- 69. There shall be a Legislature for Ontario consisting of ste the Lieutenant-Governor and of one House, styled the Legislative Assembly of Ontario. 70. The Legislative Assembly of Ontario shall be composed of Eighty-two Members, to be elected to represent the Eightytwo Electoral Districts set forth in the First Schedule to this Act. 2 QUEBEC. Legisla- 71. There shall be a Legislature for Quebec consisting of Ey the Lieutenant-Governor and two Houses, styled the Legislative Council of Quebec and the Legislative Assembly of Quebec. Constitu- 72. The Legislative Council of Quebec shall be composed of a tive Twenty-four Members, to be appointed by the Lieutenant-Gover-Council. nor in the Queen’s name by Instrument under the Great Seal of Quebec, one being appointed to represent each of the Twentyfour Electoral Divisions of Lower Canada in this Act referred to, and each holding office for the term of his life, unless the Legislature of Quebec otherwise provides under the provisions of this Act. Qualificapol 73. The qualifications of the Legislative Councillors of tive Coun- Quebec shall be the same as those of the Senators for Quebec. cillors. Resigna- 74. The place of a Legislative Councillor of Quebec shall tion, dis- b 4 in. th ‘ or : qualifica- P8COMeE vacant in the cases, mutatis mutandis, in which the place tion. &e. of Senator becomes vacant. Vacancies. 75. When a vacancy happens in the Legislative Council of Quebec by resignation, death, or otherwise, the Lieutenant Governor in the Queen’s name, by Instrument under the Great Seal of Quebec, shall appoint a fit and qualified person to fill the vacancy. Questions 76. If any question arises respecting the qualification of a Vacancies, Legislative Councillor of Quebec, or a vacany in the Legislative ge. Council of Quebec, the same shall be heard and determined by the Legislative Council. THE BRITISH NORTH AMERICA ACT, 1867. 293 77. The Lieutenant-Governor may from time to time, by Speaker of Instrument under the Great Seal of Quebec, appoint a Member Logsiive of the Legislative Council of Quebec to be Speaker thereof, and may remove him and appoint another in his stead. 78. Until the Legislature of Quebec otherwise provides, the Quorum presence of at least ten Members of the Legislative Council, St Loge including the Speaker, shall be necessary to constitute a meeting Council. for the exercise of its powers. 79. Questions arising in the Legislative Council of Quebec Voting in shall be decided by a majority of voices, and the Speaker shall in Tog all cases have a vote, and when the voices are equal, the decision Council, shall be deemed to be in the negative. 80. The Legislative Assembly of Quebec shall be composed Constituof Sixty-five Members, to be elected to represent the Sixty-five fon fles Tlectoral Divisions or Districts of Lower Canada in this Act Assembly referred to, subject to alteration thereof by the Legislature of af Gueiec Quebec : Provided that it shall not be lawful to present to the Lieutenant-Governor of Quebec for assent any Bill for altering the limits of any of the Electoral Divisions or Districts mentioned in the Second Schedule to this Act, unless the second and third readings of such Bill have been passed in the Legislative Assembly with the concurrence of the majority of the Members representing all those Flectoral Divisions or Districts, and the assent shall not be given to such Bill unless an address has been presented by the Legislative Assembly to the Lieutenant-Governor stating that it has been so passed. a ONTARIO AND QUEBEC. 81. The Legislatures of Ontario and Quebec respectively First Sesshall be called together not later than six months after the Sn ITnion. tures. 82. The Lieutenant-Governor of Ontario and of Quebec Summonshall, from time to time, in the Queen’s name, by Instrument Tyla. under the Great Seal of the Province, summon and call together Assembly. the Legislative Assembly of the Province. 83. Until the Legislature of Ontario or of Quebec otherwise Restricprovides, a person accepting or holding in Ontario or in Quebec joo of any office, commission or employment, permanent or temporary, Lo of oifices. 294 APPENDIX. at the nomination of the Lieutenant-Governor, to which an annual salary, or any fee, allowance, emolument, or profit of any kind or amount whatever from the Province is attached, shall not be eligible as a Member of the Legislative Assembly of the respective Province, nor shall he sit or vote as such ; but nothing In this Section shall make ineligible any person being a Member of the Executive Council of the respective Provinces, or holding any of the following Offices, that is to say:—the Offices of Attorney-General, Secretary and Registrar of the Province, Treasurer of the Province, Commissioner of Crown Lands, and Commissioner of Agriculture and Public Works, and in Quebec Solicitor-General, or shall disqualify him to sit or vote in the House for which he is elected, provided he is elected while holding such Office. Continuance of existing election Laws. 84. Until the Legislatures of Ontario and Quebec respectively otherwise provide, all laws which at the Union are in force in those Provinces respectively, relative to the following matters, or any of them, namely,—the qualifications and disqualifications of persons to be elected or to sit or vote as Members of the Assembly of Canada, the qualifications or disqualifications of voters, the oaths to be taken by voters, the Returning Officers, their powers and duties, the proceedings at Elections, the periods during which such Elections may be continued, and the trial of controverted Elections and the proceedings incident thereto, the vacating of the seats of Members and the issuing and execution of new Writs in case of seats vacated otherwise than by dissolution, shall respectively apply to Elections of Members to serve in the respective Legislative Assemblies of Ontario and uebec. Provided that until the Legislature of Ontario otherwise provides, at any Election for a Member of the Legislative Assembly of Ontario for the District of Algoma, in addition to persons qualified by the law of the Province of Canada to vote, every male British Subject, aged Twenty-one years or upwards, being a householder shall have a vote. Duration 85. Every Legislative Assembly of Ontario and every Legis-3% Lele lative Assembly of Quebec shall continue for Four Years from the semblies. day of the return of the Writs for choosing the same (subject nevertheless to either the Legislative Assembly of Ontario or the THE BRITISH NORTH AMERICA ACT, 1867. 295 Legislative Assembly of Quebec being sooner dissolved by the Lieutenant-Governor of the Province), and no longer. 86. There shall be a Session of the Legislature of Ontario Yearly and of that of Quebec once at least in every year, SO that twelve De ” months shall not intervene between the last sitting of the Legis- lature. lature in each Province in one Qession and its first sitting in the next Session. 87. The following provisions of this Act respecting the Speaker, House of Commons of Canada shall extend and apply to the Legislative Assemblies of Ontario and Quebec, that is to say,— the provisions relating to the Election of a Speaker originally and on vacancies, the duties of the Speaker, the absence of the Speaker, the quorum, and the mode of voting, as if those provisions were here re-enacted and made applicable in terms to each such Legislative Assembly. 1. NOVA SCOTIA AND NEW BRUNSWICK. 88. The Constitution of the Legislature of each of the Pro- Constituvinces of Nova Scotia and New Brunswick shall, subject to the Siang of provisions of this Act, continue as it exists at the Union until me of altered under the authority of this Act; and the House of BO Assembly of New Brunswick existing at the passing of this Act and New shall, unless sooner dissolved, continue for the period for which it Bi was elected. ’ 5 ONTARIO, QUEBEC, AND ‘NOVA SCOTIA. 89. Fach of the Lieutenant-Governors of Ontario, Quebec, First and Nova Scotia, shall cause Writs to be issued for the first Elections. Election of Members of the Legislative Assembly thereof in such form and by such person as he thinks fit, and at such time and addressed to such Returning Officer as the Governor-General directs, and so that the first Election of Member of Assembly for any Electoral District or any sub-division thereof shall be held at the same time and at the same places as the Election for a Member to serve in the House of Commons of Canada for that Rlectoral District. 5 Yi APPENDIX, 6. THE FOUR PROVINCES. Applica- 90. The following provisions of this Act respecting the on Parliament of Canada, namely,—the provisions relating to apbures of propriation and tax Bills, the recommendation of money votes, Fespeoting the assent to Bills, the disallowance of Acts, and the signification money of pleasure on Bills reserved, —shall extend and apply to the oles, &0. J ecislatures of the several Provinces as if those provisions were here re-enacted and made applicable in terms to the respective Provinces and the Legislatures thereof, with the substitution of the Lieutenant-Governor of the Province for the Governor-General, of the Governor-General for the Queen and for a Secretary of State, of one year for two years, and of the Province for Canada. VI. DISTRIBUTION oF LEGISLATIVE Powers. Powers of the Parliament. Legislative Authority of Parliament of Canada. 91. It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order, and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces 2 and for greater certainty, but not so as to restrict the generality of the foregoing terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all matters coming within the classes of subjects next hereinafter enumerated, that is to say :— The Public Debt and Property : The regulation of Trade and Commerce - The raising of money by any mode or system of Taxation: The borrowing of money on the Public Credit : Postal Service : The Census and Statistics : Militia, Military and Naval Service, and Defence : The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada, : Beacons, Buoys, Lighthouses, and Sable Island : Navigation and Shipping : THE BRITISH NORTH AMERICA ACT, 1867. 297 Quarantine and the establishment and maintenance of Marine Hospitals: Sea Coast and Inland Fisheries: Ferries between a Province and any British or Foreign Tountry or between two Provinces : Currency and Coinage : Banking, Incorporation of Banks, and the issue of Paper Money : Savings Banks: Weights and Measures : Bills of Exchange and Promissory Notes: Interest : Legal Tender : Bankruptey and Insolvency : patents of Invention and Discovery : Topyrights : Indians, and Lands reserved for the Indians: Naturalization and Aliens: Marriage and Divorce : The Criminal Law, except the constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal matters : The Establishment, Maintenance, and Management of Penitentiaries : Such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces. And any matter coming within any of the classes of subjects enumerated in this Section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces. 1. Pownlosive Powers of Provincial Legislatures. 99. In each Province the Legislature may exclusively make Subjects laws in relation to matters coming within the classes of subjects of ne next hereinafter enumerated, that is to say :— vincial | The amendment from time to time, notwithstanding Logis anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant-Governor : 298 APPENDIX, > Direct Taxation within the Province in order to the raising of a Revenue for Provincial purposes : The borrowing of money on the sole credit of the Province : The establishment and tenure of Provincial Offices, and the appointment and payment of Provincial officers : The management and sale of the Public Lands belonging to the Province, and of the timber and wood thereon : The establishment, maintenance, and management of Public and Reformatory Prisons in and for the Province : The establishment, maintenance, and management of Hospitals, Asylums, Charities, and Eleemosynary Institutions in and for the Provinces, other than Marine Hospitals : Municipal Institutions in the Province : Shop, Saloon, Tavern, Auctioneer, and other Licences, in order to the raising of a Revenue for Provincial, Local, or Municipal purposes: Local works and undertakings other than such as are of the following classes : Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other works and undertakings connecting the Province with any other or others of the Provinces, or extending beyond the limits of the Province : pb. Lines of Steam Ships between the Province and any British or Foreign Country : Such works as, although wholly situate within the Province, are before or after their execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the Provinces : 3. 0 10. ) 11. 12. 13. 14 The Incorporation of Companies with Provincial objects: The Solemnization of Marriage in the Province : Property and civil rights in the Province : The Administration of Justice in the Province, including the constitution, maintenance, and organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including procedure in civil matters in those Courts: The imposition of punishment by fine, penalty, or imprisonment for enforcing any Law of the Province | 3 THE BRITISH NORTH AMERICA ACT, 1867. 299 16 made in relation to any matter coming within any of the classes of subjects enumerated in this Section : Generally all matters of a merely local or private nature in the Province. Education. 93. Tn and for each Province the Legislature may exclusively Legislamake laws in relation to education, subject and according to the od following provisions : Educa-Nothing in any such law shall prejudicially affect any tion. right or privilege with respect to Denominational Schools which any class of persons have by law in the Province at the Union : All the powers, privileges, and duties at the Union by law conferred and imposed in Upper Canada on the separate Schools and School Trustees of the Queen’s Roman Catholic Subjects shall be and the same are hereby extended to the Dissentient Schools of the Queen’s Protestant and Roman Catholic Subjects in Quebec: Where in any Province a system of separate or Dissentient Schools exists by law at the Union or is thereafter astablished by the Legislature of the Province, an appeal shall lie to the Governor-General in Council from any act or decision of any Provincial authority affecting any right or privilege of the Protestant or Roman Catholic minority of the Queen’s Subjects in relation to Education : In case any such Provincial law as from time to time seems to the Governor-General in Council requisite for the due execution of the provisions of this Section is not made, or in case any decision of the Governor-General in Council on any appeal under this Section is not duly executed by the proper Provincial authority in that behalf, then and in every such case, and as far only as the circumstances of each case require, the Parliament of Canada may make remedial laws for the due execution of the provisions of this Section and of any decision of the Governor-General i Council under this Section. 0 APPENDIX. Uniformity of Laws in Ontario, Nova Scotia, and New Brunswick. Legisla- 94. Notwithstanding anything in this Act, the Parliament Son) of Canada may make provision for the uniformity of all or any of ty of Laws the laws relative to property and civil rights in Ontario, Nova his io Scotia and New Brunswick, and of the procedure of all or any of the Courts in those three Provinces, and from and after the passing of any Act in that behalf, the power of the Parliament of Canada to make laws in relation to any matter comprised in any such Act shall, notwithstanding anything in this Act, be unrestricted ; but any Act of the Parliament of Canada making provision for such uniformity shall not have effect in any Province unless and until it is adopted and enacted as law by the Legislature thereof. Agriculture and Immigration. Concur- 95. In each Province the Legislature may make laws in rent pow- relation to Agriculture in the Province, and to Immigration into 8 the Province; and it is hereby declared that the Parliament of specting Clanada may from time to time make laws in relation to Agricul- : : 2 . . ture, &¢. Agriculture in all or any of the Provinces, and to Immigration into all or any of the Provinces; and any law of the Legislature of a Province relative to Agriculture or to Immigration shall have effect in and for the Province as long and as far only as it is not repugnant to any Act of the Parliament of Canada. VII. JUDICATURE. Appoint. ment of Judges. 96. The Governor-General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick. Selection 97. Until the laws relative to property and civil rights in i Joins Ontario, Nova Scotia and New Brunswick, and the procedure of Ke. the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor-General shall be selected from the respective Bars of those Provinces. Selection 98. The Judges of the Courts of Quebec shall be selected pe oadges from the Bar of that Province. THE BRITISH NORTH AMERICA ACT, 1867. 301 99. The Judges of the Superior Courts shall hold office Dima ph during good behaviour, but shall be removable by the Governor- judges of General on address of the Senate and House of Commons. Spoor 100. The salaries, allowances, and pensions of the Judges of Salaries, the Superior, District, and County Courts (except the Courts of Tadao 4 Probate in Nova Scotia and New Brunswick), and of the Admiralty Courts in cases where the Judges thereof are for the time being paid by salary, shall be fixed and provided by the Parliament of Canada. 101. The Parliament of Canada may, notwithstanding any- General thing in this Act, from time to time, provide for the constitution, Sr J maintenance, and organization of a General Court of Appeal for &e. Canada, and for the establishment of any additional Courts for the better administration of the Laws of Canada. VIII. REveENUEs; DEBTS; ASSETS; TAXATION. 102. All Duties and Revenues over which the respective Creation Legislatures of Canada, Nova Scotia, and New Brunswick before a and at the Union had and have power of appropriation, except Revenue such portions thereof as are by this Act reserved to the respective Fond. Legislatures of the Provinces, or are raised by them in accordance with the special powers conferred on them by this Act, shall form one Consolidated Revenue Fund, to be appropriated for the public service of Canada in the manner and subject to the charges in this Act provided. 103. The Consolidated Revenue Fund of Canada shall be Expenses permanently charged with the costs, "charges, and expenses of action incident to the collection, management, and receipt thereof, and the same shall form the first charge thereon, subject to be reviewed and audited in such manner as shall be ordered by the Governor-General in Council until the Parliament otherwise provides. 104. The annual interest of the public debts of the several Interest of Provinces of Canada, Nova Scotia, and New Brunswick at the Tze Union shall form the second charge on the Consolidated Revenue Debts. Fund of Canada. 105. Unless altered by the Parliament of Canada, the salary Suga of the Governor-General shall be Ten Thousand Pounds sterling General. 302 APPENDIX, money of the United Kingdom of Great Britain and Ireland, payable out of the Consolidated Revenue Fund of Canada, and the same shall form the third charge thereon, Appropri- 106. Subject to the several payments by this Act charged on 31200 Frosh the Consolidated Revenue Fund of Canada, the same shall be time, appropriated by the Parliament of Canada for the public service. Transfer 107. All Stocks, Bankers’ Balances, and Securities for money sts, belonging to each Province at the time of the Union, except asin ’ this Act mentioned, shall be the property of Canada, and shall be taken in reduction of the amount of the respective debts of the Provinces at the Union. Transfer 108. The Public Works and Property of each Province, ok rl enumerated in the Third Schedule to this Act, shall be the schedule. property of Canada. Property 109. All Lands, Mines, Minerals, and Royalties belonging to Banas, the several Provinces of Canada, Nova Scotia, and New Brunswick at the Union, and all sums then due or payable for such Lands, Mines, Minerals, or Royalties, shall belong to the several Provinces of Ontario, Quebec, Nova Scotia, and New Brunswick in which the same are situate or arise, subject to any trusts existing in respect thereof, and to any interest other than that of the Province in the same. Aovets 1 110. All Assets connected with such portions of the Public Sonn re Debt of each Province as are assumed by that Province shall vincial plone to that Province. debts. Canada to be liable for Provineial debts, Debts of Ontario and Ruebec. 112. Ontario and Quebec conjointly shall be liable to Canada for the amount (if any) by which the debt of the Province of Canada exceeds at the Union Sixty-two million five hundred thousand Dollars, and shall be charged with interest at the rate of five per centum per annum thereon. Assets of 113. The Assets enumerated in the Fourth Schedule to this butaris "Act, belonging at the Union to the Province of Canada shall be Quebec. the property of Ontario and Quebec conjointly. THE BRITISH NORTH AMERICA ACT, 1867. 303 114. Nova Scotia shall be liable to Canada for the amount Debt of (if any) by which its public debt exceeds at the Union Eight BO million Dollars, and shall be charged with interest at the rate of five per centum per annum thereon. 115. New Brunswick shall be liable to Canada for the Debt of amount (if any) by which its public debt exceeds at the Union iid Seven million Dollars, and shall be charged with interest at the wick. rate of five per centum per annum thereon. 116. In case the public debts of Nova Scotia and New Payment Brunswick do not at the Union amount to Eight million and % interest Seven million Dollars respectively, they shall respectively receive, Scotia and by half-yearly payments in advance from the Government of By Canada, interest at five per centum per annum on the difference wick. between the actual amounts of their respective debts and such stipulated amounts. 117. The several Provinces shall retain all their respective Provincial public property not otherwise disposed of in this Act, subject to ie the right of Canada to assume any lands or public property required for Fortifications or for the Defence of the Country. 118. The following suns shall be paid yearly by Canada to Grants to the several Provinces for the support of their Governments and © FOVRees: Legislatures :— Ontario......... Quebec .......... Nova Scotia ........... New Brunswick ... Dollars. Eighty Thousand. Seventy Thousand. Sixty Thousand. ftv Thousand. Two Hundred and Sixty Thousand ; and an annual grant in aid of each Province shall be made, equal to Eighty Cents per bead of the population as ascertained by the census of One thousand eight hundred and sixty-one, and in the case of Nova Scotia and New Brunswick, by each, subsequent decennial census until the population of each of those two Provinces amounts to Four hundred thousand souls, at which rate such grant shall thereafter remain. Such grants shall be in full settlement of all future demands on Canada, and shall be paid half-yearly in advance to each Province ; but the Government of Canada shall deduct from such grants, as against any Province, 304 APPENDIX, all sums chargeable as interest on the public debt of that Province in excess of the several amounts stipulated in this Act. 119. New Brunswick shall receive by half-yearly payments in advance from Canada for the period of ten years from the Union an additional allowance of Sixty-three thousand Dollars per annum; but as long as the public debt of that Province remains under Seven million Dollars, a deduction equal to the interest at five per centum per annum on such deficiency shall be made from that allowance of Sixty-three thousand Dollars. Forin of 120. All payments to be made under this Act, or in dispayments. oparoe of liabilities created under any Act of the Provinces of Canada, Nova Scotia, and New Brunswick respectively, and assumed by Canada, shall, until the Parliament of Canada otherwise directs, be made in such form and manner as may from time to time be ordered by the Governor-General in Council. Canadian 121. All articles of the growth, produce, or manufacture of bares, jo any one of the Provinces shall, from and after the Union, be admitted free into each of the other Provinces. Contin. 122. The Customs and Excise Laws of each Province shall, Customs subject to the provisions of this Act, continue in force until So Bxpies altered by the Parliament of Canada. Exporta- 123. Where Customs Duties are, at the Union, leviable on bon and any goods, wares, or merchandizes in any two Provinces, those importa- : z tion as be- goods, wares, and merchandizes may, from and after the Union, iran you be imported from one of those Provinces into the other of them "on proof of payment of the Customs Duty leviable thereon in the Province of exportation, and on payment of such further amount (if any) of Customs Duty as is leviable thereon in the Province of importation. Lumber 124. Nothing in this Act shall affect the right of New Noesin Brunswick to levy the lumber dues provided in Chapter Fifteen swick. of Title Three of the Revised Statutes of New Brunswick, or in any Act amending that Act before or after the Union, and not increasing the amount of such dues; but the lumber of any of the Provinces other than New Brunswick shall not be subject to such Jues. pxemp- 125. No Lands or Property belonging to Canada or any Public ~~ Province shall be liable to taxation. Lands. &o THE BRITISH NORTH AMERICA ACT, 1867. 305 126. Such portions of the Duties and Revenues over which Provincial the respective Legislatures of Canada, Nova Scotia, and New Soh Brunswick had before the Union power of appropriation as are Revenue by this Act reserved to the respective Governments or Legis- Pant latures of the Provinces, and all Duties and Revenues raised by them in accordance with the special powers conferred upon them by this Act, shall in each Province form one Consolidated Revenue Fund to be appropriated for the Public Service of the Province. [3X. MISCELLANEOUS PROVISIONS. General. 127. If any person being, at the passing of this Act, a Asto Member of the Legislative Council of Canada, Nova Scotia, or Lo New Brunswick, to whom a place in the Senate is offered, does cillors of not within thirty days thereafter, by writing under his hand Doone addressed to the Governor-General of the Province of Canada, or Deanne to the Lieutenant-Governor of Nova Scotia or New Brunswick (as the case may be), accept the same, he shall be deemed to have declined the same ; and any person who, being at the passing of this Act a Member of the Legislative Council of Nova Scotia or New Brunswick, accepts a place in the Senate shall thereby vacate his Seat in such Legislative Council. 128. Every Member of the Senate or House of Commons of Oath of Canada shall, before taking his Seat therein, take and subscribe Allegibefore the Governor-General or some person authorized by him, TT and every Member of a Legislative Council or Legislative Assembly of any Province shall, before taking his Seat therein, take and subscribe before the Lieutenant-Governor of the Province or some person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor-General or some person authorized by him, the Declaration of Qualification contained in the same Qehedule. 129. Except as otherwise provided by this Act, all Laws in Coming force in Canada, Nova Scotia, or New Brunswick at the Union, sisting and all Courts of Civil and Criminal Jurisdiction, and all legal Courts, 20 Officers, &e. 306 APPENDIX. Commissions, Powers, and Authorities, and all Officers, Judicial, Administrative, and Ministerial, existing therein at the Union, shall continue in Ontario, Quebec, Nova Scotia, and New Brunswick respectively, as if the Union had not been made; subject aevertheless (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 Provinces, according to the authority of the Parliament or of that Legislature under this Act. Transfer 130. Until the Parliament of Canada otherwise provides, 2 Jus all Officers of the several Provinces having duties to discharge in relation to matters other than those coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces shall be Officers of Canada, and shall continue to discharge the duties of their respective offices under the same liabilities, responsibilities. and penalties as if the Union had not heen made. Appointment of new Officers. Treaty sbliga-Hons. 131. Until the Parliament of Canada otherwise provides, the Governor-General in Council may from time to time appoint such Officers as the Governor-General in Council deems necessary or proper for the effectual execution of this Act. 132. The Parliament and Government of Canada shall have all powers necessary or proper for performing the obligations of Canada or of any Province thereof, as part of the British Empire, towards Foreign Countries, arising under Treaties between the Empire and such Foreign Countries. Use of 133. Either the English or French language may be used by Anglish any person in the debates of the Houses of the Parliament of French Canada and of the Houses of the Legislature of Quebec; and languages. oth those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any person or in any pleading or process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec. The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages. THE BRITISH NORTH AMERICA ACT, 1867. 307 Ontario and Quebec. 134. Until the Legislature of Ontario or of Quebec otherwise Appoiniprovides, the Lieutenant-Governors of Ontario and Quebec may kits each appoint, under the Great Seal of the Province, the following Officers for Officers, to hold Office during pleasure, that is to say,—the Oui Attorney-General, the Secretary and Registrar of the Province, Quebec. the Treasurer of the Province, the Commissioner of Crown Lands, and the Commissioner of Agriculture and Public Works, and in the case of Quebec the Solicitor-General ; and may, by order of the Lieutenant-Governor in Council, from time to time prescribe the duties of those Officers and of the several Departments over which they shall preside or to which they shall belong, and of the Officers and Clerks thereof; and may also appoint other and additional Officers to hold office during pleasure, and may from time to time prescribe the duties of those Officers, and of the several Depart ments over which they shall preside or to which they shall belong, and of the Officers and Clerks thereof. 135. Until the Legislature of Ontario or Quebec otherwise Powers, provides, all rights, powers, duties, functions, responsibilities, or duties, &e. authorities at the passing of this Act vested in or imposed on the tive Attorney-General, Solicitor-General, Secretary and Registrar of ifesre. the Province of Canada, Minister of Finance, Commissioner of Crown Lands, Commissioner of Public Works, and Minister of Agriculture and Receiver-General, by any Law, Statute, or Ordinance of Upper Canada, Lower Canada, or Canada, and not repugnant to this Act, shall be vested in or imposed on any Officer to be appointed by the Lieutenant-Governor for the discharge of the same or any of them ; and the Commissioner of Agriculture and Public Works shall perform the duties and functions of the office of Minister of Agriculture at the passing of this Act imposed by the law of the Province of Canada, as well as those of the Commissioner of Public Works. 136. Until altered by the Lieutenant-Governor in Council, Great the Great Seals of Ontario and Quebec respectively shall be the Seals. same, or of the same design as those used in the Provinces of Upper Canada and Lower Canada respectively before their Union as the Province of Canada. 3, oT § 368 APPENDIX. Construe- 137. The words “and from thence to the end of the then ary “next ensuing Session of the Legislature,” or words to the same Acts. effect, used in any temporary Act of the Province of Canada not expired before the Union, shall be construed to extend and apply to the next Session of the Parliament of Canada, if the subject matter of the Act is within the powers of the same, as defined by this Act, or to the next Sessions of the Legislatures of Ontario and Quebec respectively, if the subject matter of the Act is within the powers of the same as defined by this Act, As to 138. Trom and after the Union the use of the words « Upper Sin Canada” instead of “Ontario,” or “Lower Canada” instead of “Quebec,” in any Deed, Writ, Process, Pleading, Document, Matter. or Thing, shall not invalidate the same. Astoissue 139. Any Proclamation under the Great Seal of the Province ron of Canada issued before the Union to take effect at a time which before is subsequent to the Union, whether relating to that Province, or Gnkin, #8 to Upper Canada, or to Lower Canada, and the several matters after and things therein proclaimed shall be and continue of like force Union. 51d effect as if the Union had not been made. Astoissue 140. Any Proclamation which is authorized by any Act of OF Epil the Legislature of the Province of Canada to be issued under the after Great Seal of the Province of Canada, whether relating to that Ll Province, or to Upper Canada, or to Lower Canada and which is not issued before the Union, may be issued by the Lieutenant-Governor of Ontario or of Quebec, as its subject matter requires, ander the Great Seal thereof; and from and after the issue of such Proclamation the same and the several matters and things therein proclaimed shall be and continue of the like force and effect in Ontario or Quebec as if the Union had not been made. Peniten-Farry. 141. The Penitentiary of the Province of Canada shall, until the Parliament of Canada otherwise provides, be and continue the Penitentiary of Ontario and of Quebec. Arbitra- 142. The division and adjustment of the Debts, Credits, ios Liabilities, Properties, and Assets of Upper Canada and Lower Debts, &e. Canada shall be referred to the arbitrament of three arbitrators, one chosen by the Government of Ontario, one by the Government of Quebec, and one by the Government of Canada: and the HE BRITISH NORTH AMERICA ACT, 1867. 309 selection of the arbitrators shall not be made until the Parliament of Canada and the Legislatures of Ontario and Quebec have met; and the arbitrator chosen by the Government of Canada shall not be a resident either in Ontario or in Quebec. 143. - The Governor-General in Council may from time to time order that such and so many of the records, books, and documents of the Province of Canada as he thinks fit shall be appropriated and delivered either to Ontario or to Quebec, and the same shall thenceforth be the property of that Province; and. any copy thereof or extract therefrom, duly certified by the Officer having charge of the original thereof, shall be admitted as evidence. 144. The Lieutenant-Governor of Quebec may from time to Constitutime, by Proclamation under the Great Seal of the Province, to fen of os take effect from a day to be appointed therein, constitute Town- in Quebec ships in those parts of the Province of Quebec in which Townships are not then already constituted, and fix the metes and bounds thereof. Division of Records. X. INTERCOLONIAL RAILWAY. 145. Inasmuch as the Provinces of Canada, Nova Scotia, and Duty of New Brunswick have joined in a declaration that the construction Bove a of the Intercolonial Railway is essential to the consolidation of Parliathe Union of British North America, and to the assent thereto Shan) gt » of Nova Scotia and New Brunswick, and have consequently agreed make zailthat provision should be made for its immediate construction by yey here the Government of Canada: Therefore, in order to give effect to that agreement, it shall be the duty of the Government and Parliament of Canada to provide for the commencement, within Six Months after the Union, of a Railway connecting the River St Lawrence with the City of Halifax in Nova Scotia, and for the construction thereof without intermission, and the completion thereof with all practicable speed. XI. ApwmissioN oF OTHER COLONIES. 146. Tt shall be lawful for the Queen, by and with the bw to advice of Her Majesty's Most Honourable Privy Council, on Newfound Addresses from the Houses of the Parliament of Canada, and Jed, so. from the Houses of the respective Legislatures of the Colonies Coat Rt or Provinces of Newfoundland, Prince Edward Island, and 310 APPENDIX, British Columbia, to admit those Colonies or Provinces, or any of them, into the Union, and on Address from the Houses of the Parliament of Canada to admit Rupert’s Land and the North-Western Territory, or either of them, into the Union, on such berms and conditions in each case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the provisions of this Act; and the provisions of any Order in Council in that behalf shall have effect as if they had been enacted by the Parliament of the United Kingdom of Great Britain and Ireland. As to re- 147. In case of the admission of Newfoundland and Prince presenta- Fiward Island, or either of them, each shall be entitled to a tion of 7 7 Newfound- representation in the Senate of Canada of Four Members, and 130A and (notwithstanding anything in this Act) in case of the admission Edward of Newfoundland the normal number of Senators shall be pains In Seventy-six and their maximum number shall be Eighty-two ; but "Prince Edward Island when admitted shall be deemed to be comprised in the third of the Three Divisions into which Canada is, in relation to the constitution of the Senate, divided by this Act, and accordingly, after the admission of Prince Edward Island, whether Newfoundland is admitted or not, the representation of Nova Scotia and New Brunswick in the Senate shall, as vacancies occur, be reduced from Twelve to Ten Members respectively, and the representation of each of those Provinces shall not be increased at any time beyond Ten, except under the provisions of this Act for the appointment of Three or Six additional Senators under the direction of the Queen. SCHEDULES. Tre First SCHEDULE, Electoral Districts of Ontario. [Omitted.] THE SECOND SCHEDULE. Electoral Districts of Quebec specially fied. [Omitted.] THE BRITISH NORTH AMERICA ACT, 1867. 3811 Tae THIRD SCHEDULE Provincial Public Works and Property to be the Property of Canada. Canals, with lands and water power connected therewith. Public Harbours. Lighthouses and Piers, and Sable Island. Steamboats, Dredges, and Public Vessels. Rivers and Lake Improvements. Railways and Railway Stocks, Mortgages, and other Debts due by Railway Companies. Military Roads. Custom Houses, Post Offices, and all other Public Buildings, except such as the Government of Canada appropriate for the use of the Provincial Legislatures and Governments. Property transferred by the Imperial Government, and known as Ordnance Property. Armouries, Drill Sheds, Military Clothing, and Munitions of War, and Lands set apart for general Public Purposes. - Tue FourrTH SCHEDULE. Assets to be the Property of Ontario and Quebec conjointly. [Omitted.] Tue FirTH SCHEDULE. Oath of Allegiance. I, A. B., do swear, that I will be faithful and bear true Allegiance to Her Majesty Queen Victoria. Note.—The name of the King or Queen of the United, Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time, with proper terms of reference thereto. Declaration of Qualification. I, A. B., do declare and testify, that I am by law duly qualified to be appointed a Member of the Senate of Canada [or as the case may bel, and that I am legally or equitably seised as of Freehold for my own use and benefit of Lands or Tenements 312 APPENDIX, held in free and Common Socage [or seised or possessed for my own use and benefit of Lands or Tenements held in Franc-alleu or in Roture (as the case may be,)j in the Province of Nova Scotia [or as the case may be] of the value of Four Thousand Dollars over and above all Rents, Dues, Debts, Mortgages, Charges, and Incumbrances due or payable out of or charged on or affecting the same, and that I have not collusively or colourably obtained a title to or become possessed of the said Lands and Tenements, or any part thereof, for the purpose of enabling me to become a Member of the Senate of Canada [or as the case may be), and that my Real and Personal Property are together worth Four Thousand Dollars over and above my Debts and Liabilities TERMS OF UNION OF BRITISH COLUMBIA. Orper 18 CoUNciL DATED 16 May, 1871. t. Canada shall be liable for the debts and liabilities of British Columbia existing at the time of the Union. 9. British Columbia not having incurred debts equal to those of the other Provinces now constituting the Dominion, shall be entitled to receive, by half-yearly payments, in advance, from the (Qeneral Government, interest at the rate of five per cent. per annum on the difference between the actual amount of its indebtedness at the date of the Union and the indebtedness per head of the population of Nova Scotia and New Brunswick (27°77 dollars), the population of British Columbia being taken at £0,000. 3 The following sums shall be paid by Canada to British Columbia for the support of its Government and Legislature, to wit, an annual subsidy of 35,000 dollars, and an annual grant equal to 80 cents per head of the said population of 60,000, both half-yearly in advance; such grant of 80 cents per head to be augmented in proportion to the increase of population, as may be shown by each subsequent decennial census, until the population amounts to 400,000, at which rate such grant shall thereafter remain, it being understood that the first census be taken in the year 1881. 4 The Dominion will provide an efficient mail service, fortnightly, by steam communication, between Victoria and San Francisco, and twice a week between Victoria and Olympia ; the vessels to be adapted for the conveyance of freight and passengers. 5. Canada will assume and defray the charges for the following services : A. Salary of the Lieutenant-Governor ; B. Salaries and allowances of the Judges of the Superior Courts and the County or District Courts ; 314 APPENDIX. The charges in respect to the Department of Customs 3 The Postal and Telegraphic Services ; Protection and encouragement of Fisheries ; Provision for the Militia ; Lighthouses, Buoys, and Beacons, Shipwrecked crews, Quarantine and Marine Hospitals, including a Marine Hospital at Victoria ; H. The Geological Survey; I. The Penitentiary. And such further charges as may be incident to and connected with the services which, by the “British North America Act of 1867,” appertain to the General Government, and as are or may ne allowed to the other Provinces. 6. Suitable pensions, such as shall be approved of by Her Majesty’s Government, shall be provided by the Government of the Dominion for those of Her Majesty’s servants in the Colony whose position and emoluments derived therefrom would be affected by political changes on the admission of British Columbia, into the Dominion of Canada. 7. It is agreed that the existing Customs Tariff and Excise Duties shall continue in force in British Columbia until the Railway from the Pacific Coast and the system of Railways in Canada are connected, unless the Legislature of British Columbia should sooner decide to accept the tariff and excise laws of Canada. When customs and excise duties are, at the time of the union of British Columbia with Canada, leviable on any goods, wares, or merchandizes in British Columbia, or in the other Provinces of the Dominion, those goods, wares, and merchandizes may, from and after the Union, be imported into British Columbia from the Provinces now composing the Dominion, or from either of those Provinces into British Columbia, on proof of payment of the customs or excise duties leviable thereon in the Province of exportation, and on payment of such further amount (if any) of customs or excise duties as are leviable thereon in the Province of importation. This arrangement to have no force or effect after the assimilation of the tariff and excise duties of British Columbia, with those of the Dominion, 8. British Columbia shall be entitled to be represented in the Senate by three members, and by six members in the House TERMS OF UNION OF BRITISH COLUMBIA. 315 of Commons. The representation to be increased under the provisions of the « British North America Act, 1867.” 9. The influence of the Dominion Government will be used bo secure the continued maintenance of the Naval Station at Esquimalt. 10. The provisions of the “British North America Act, 1867,” shall (except those parts thereof which are in terms made, or by reasonable intendment may be held to be specially applicable to and only affect one and not the whole of the Provinces now comprising the Dominion, and except so far as the same may be varied by this Minute) be applicable to British Columbia, in the same way and to the like extent as they apply to the other Provinces of the Dominion, and as if the Colony of British Columbia had been one of the Provinces originally united by the qald Act. 11. The Government of the Dominion undertake to secure the commencement simultaneously, within two years from the date of Union, of the construction of a Railway from the Pacific towards the Rocky Mountains, and from such point as may be selected, east of the Rocky Mountains, towards the Pacific, to connect the seaboard of British Columbia with the railway system of Canada ; and further, to secure the completion of such Railway within ten years from the date of the union. And the Government of British Columbia agree to convey to the Dominion Government, in trust, to be appropriated in such manner as the Dominion Government may deem advisable in furtherance of the construction of the said Railway, a similar extent of public lands along the line of Railway, throughout its entire length in British Columbia, not to exceed, however, Twenty (20) miles on each side of said line, as may be appropriated for the same purpose by the Dominion Government from the public lands in the North-west Territories and the Province of Manitoba. Provided, that the quantity of land which may be held under pre-emption right or by Crown grant within the limits of the tract of land in British Columbia to be so conveyed to the Dominion Government shall be made good to the Dominion from contiguous public lands; and, provided further, that until the commencement, within two years as aforesaid from the date of the union. of the construction of the said Railway, the Govern- 316 APPENDIX, ment of British Columbia shall not sell or alienate any further portions of the public lands of British Columbia in any other way than under right of pre emption, requiring actual residence of the pre-emptor on the land claimed by him. In consideration of the land to be so conveyed in aid of the construction of the said Railway, the Dominion Government agree to pay to British Columbia, from the date of the union, the sum of 100,000 Dollars per annum, in half-yearly payments in advance. 12. The Dominion Government shall guarantee the interest for ten years from the date of the completion of the works, at the rate of five per centum per annum, on such sum, not exceeding £100,000 sterling, as may be required for the construction of a drst class Graving Dock at Esquimalt. 13. The charge of the Indians, and the trusteeship and management of the lands reserved for their use and benefit, shall oe assumed by the Dominion Government, and a policy as liberal as that hitherto pursued by the British Columbia Government shall be continued by the Dominion Government after the union. To carry out such policy, tracts of land of such extent as it has hitherto been the practice of the British Columbia Government to appropriate for that purpose, shall from time to time be conveyed by the Local Government to the Dominion Government in trust for the use and benefit of the Indians, on application of the Dominion Government; and in case of disagreement between the two Governments respecting the quantity of such tracts of land to be so granted, the matter shall be referred for the lecision of the Secretary of State for the Colonies. 14. The constitution of the Executive Authority and of the Legislature of British Columbia, shall, subject to the provisions of the “British North America Act, 1867,” continue as existing at the time of the union until altered under the authority of the said Act, it being at the same time understood that the Government of the Dominion will readily consent to the introduction of Responsible Government when desired by the inhabitants of British Columbia, and it being likewise understood that it is the intention of the Governor of British Columbia, under the authority of the Secretary of State for the Colonies, to amend the existing constitution of the Legislature by providing that a majority of its members shall be elective. TERMS OF UNION OF BRITISH COLUMBIA. 317 The union shall take effect according to the foregoing terms and conditions on such day as Her Majesty by and with the advice of Her Most Honourable Privy Council may appoint on Addresses from the Legislature of the Colony of British Columbia and of the Houses of Parliament of Canada, in the terms of the 146th Section of the « British North America Act, 1867,” and British Columbia may in its Address specify the Electoral Districts for which the first election of members to serve in the House of Commons shall take place. TERMS OF UNION OF PRINCE EDWARD ISLAND. OrpER IN COUNCIL DATED 26th June. 1873 Ll. Canada shall be liable for the debts and liabilities of Prince Edward Island at the time of the Union. 2. That in consideration of the larger expenditure authorized by the Parliament of Canada for the construction of railways and canals and in view of the possibility of a re-adjustment of the financial arrangements between Canada and the several provinces now embraced in the Dominion as well as the isolated and exceptional condition of Prince Edward Island that Colony shall on entering the Union be entitled to incur a debt equal to 50 dollars per head of its population as shown by the census returns of 1871 that is to say 4,701,050 dollars. 3. That Prince Edward Island not having incurred debts equal to the sum mentioned in the next preceding resolution shall oe entitled to receive by half-yearly payments in advance from the general government interest at the rate of five per cent. per annum on the difference from time to time between the actual amount of its indebtedness and the amount of indebtedness authorized as aforesaid, viz. 4,701,050 dollars. 4. That Prince Edward Island shall be liable to Canada for the amount (if any) by which its public debt and liabilities at the date of the Union may exceed 4,701,050 dollars and shall be shargeable with interest at the rate of five per cent. per annum. 5. That as the Government of Prince Edward Island holds no lands from the Crown, and consequently enjoys no revenue from that source for the construction and maintenance of local works the Dominion Government shall pay by half-yearly instalments in advance to the Government of Prince Edward Island 15,000 dollars per annum less interest at five per cent. per annum TERMS OF UNION OF PRINCE EDWARD ISLAND. 319 upon any sum not exceeding 800,000 dollars which the Dominion Government may advance to the Prince Edward Island Government for the purchase of lands now held by large proprietors. 6. That in consideration of the transfer to the Parliament of Canada of the powers of taxation the following sums shall be paid yearly by Canada to Prince Edward Island for the support of its Government and Legislature that is to say 30,000 dollars and an annual grant equal to 80 cents per head of its population as shown by the census returns of 1871, viz. 94,021, both by halfyearly payments in advance—such grant of eighty cents per head to be augmented in proportion to the increase of population of the Island as may be shown by each subsequent decennial census until the population amounts to 400,000 at which rate such grant shall remain it being understood that the next census shall be taken in the vear 1881. 7. That the Dominion Government shall assume and defray 11 the charges for the following services, viz. The salary of the Lieutenant-Governor. The salaries of the Judges of the Superior Court and the District or County Courts when established. The charges in respect of the Department of Customs. The Postal Department. The protection of fisheries. The provision for the Militia. The lighthouses, shipwrecked crews, Quarantine and Marine Hospitals. The geological survey. The Penitentiary. Efficient steam service for the conveyance of mails and passengers to be established and maintained between the Island and the mainland of the Dominion winter and summer, thus placing the Island in continuous communication with the intercolonial railway and the railway system of the Dominion. The maintainance of telegraphic communication between the Island and the mainland of the Dominion. And such other charges as may be incident to and connected with the services which by the B. N. A. Act 1867 appertain to the General Government and as are or may be allowed to the other provinces. 320 APPENDIX, 8. That the new building in which are held the Law Courts, Registry Office &c., shall be transferred to Canada on the payment of 69,000 dollars. The purchase to include the land on which the pbuilding now stands and a suitable space of ground in addition for yard room de. That the Steam Dredge Boat in course of construction shall be iaken by the Dominion at a cost not exceeding 22,000 dollars. That the Steam Ferry Boat owned by the Government of the [sland and used as such shall remain the property of the Island. 9. That the population of Prince Edward Island having been increased by 15,000 or upwards since the year 1861 the Island shall be represented in the House of Commons of Canada by six members; the representation to be adjusted from time to time inder the provisions of the B. N. A. Act 1867. 10. That the constitution of the executive authority and of the Legislature of Prince Edward Island shall, subject to the provisions of the B. N. A. Act 1867, continue as at the time of the Union until altered under the authority of the said Act and the House of Assembly of Prince Edward Island existing at the late of the Union shall unless sooner dissolved continue for the period for which it was elected. 11. That the provisions in the B.N. A. Act 1867 shall, except those parts thereof which are in terms made or by reasonable intendment may be held to be especially applicable to and only to affect one and not the whole of the provinces now comprising the Dominion and except so far as the same may be varied by these resolutions be applicable to Prince Edward Island in the same way and to the same extent as they apply to the other Provinces of the Dominion and as if the Colony of Prince Edward Island had been one of the Provinces originally united yy the said Act. 12. That the Union shall take place on such day as Her Majesty may direct by Order in Council on addresses to that effect from the Houses of the Parliament of Canada and of the Legislature of the Colony of Prince Edward Island under the [46th section of the B. N. A. Act 1867 and that the Electoral Districts for which, the time within which and the laws and provisions under which the first election of members to serve in the House of Commons of Canada for such Electoral Districts TERMS OF UNION OF PRINCE EDWARD ISLAND. 321 shall be such as the said House of the Legislature of the said colony of Prince Edward Island shall specify in their said addresses. In the addresses from Prince Edward Island it was stipulated that the Island should be divided into three districts each returning two members and “that the lst election of members to serve in the House of Commons of Canada shall take place within three calendar months after this Island shall be admitted and become part of the Dominion of Canada and that all laws which at the date of the Order in Council by which the said Island of Prince Edward shall be admitted into the Dominion of Canada, relating to the qualification of any person to be elected to sit or vote as a member of the House of Assembly of the said Island, and relating to the qualifications or disqualifications of voters and to the oaths to be taken by voters and to returning officers and poll clerks and their powers and duties, and relating to polling divisions within the said Island, and relating to the proceedings at elections and to the period during which such elections may be continued, and relating to the trial of controverted elections and the proceedings incident thereto, and relating to the vacating of seats of members and to the execution of new writs in case of any seat being vacated otherwise by a dissolution, and all other matters connected with or incidental to elections of members to serve in the House of Assembly of the said Island shall apply to elections of members to serve in the House of Commons for the Electoral Districts, situate in the said Island of Prince Edward.” 7 Extracts from Order in Council, dated 24 June, 1870 surrendering the North-West Territories of Canada. “It is hereby ordered and declared by Her Majesty by and with the advice of the Privy Council in pursuance and exercise of the powers vested in Her Majesty by the said Acts of Parliament’ that from and after the 15th day of July, 1870, the said North-Western Territory shall be admitted into and become part of the Dominion of Canada upon the terms and conditions set forth in the first hereinbefore recited address® and that the Parliament of Canada shall have from the day aforesaid full power and authority to legislate for the future welfare and good government of the said Territory. And it is further ordered that without prejudice to any obligations arising from the aforesaid approved report, Rupert's Land shall from and after the said date be wdmitted into and become part of the Dominion of Canada.” The conditions contained in the Address from the Parliament of Canada regarding the North-West Territory were :— “That the Government and Parliament of Canada would provide that the legal rights of any corporation, company or individual within the same should be respected and placed under the protection of courts of competent jurisdiction.” “That the claims of the Indian tribes to compensation for lands required for purposes of settlement should be considered and settled in conformity with the equitable principles that had uniformly governed the British Crown in its dealing with the aborigines.” The conditions relating to Rupert's Land were :— 1. “Canada to pay the Hudson’s Bay Company £300,000 when Rupert's Land is transferred to the Dominion.” 2. “The Company are to retain the posts they actually occupy in the North-West Territory and may within twelve months of I i.e. B.N. A, Act, 1867: Rupert's Land Act, 1868, 2 i.e, from the Canadian Parliament, NORTH-WEST TERRITORIES. 3238 the surrender select a block of land adjoining each of its posts within any part of British North America not comprised in Canada and British Columbia in conformity except as regards the Red River Territory with 4 list made out by the Company and comniunicated to the Canadian Ministers being the list in the Schedule to the Deed of Surrender. The actual survey is to be proceeded with, with all convenient speed.” 3. “The size of each block is not to exceed 10 acres round Upper Fort Garry, 300 acres round Lower Fort Garry ; in the rest of the Red River Territory a number of acres to be settled at once between the Governor in Council and the Company but so that the aggregate extent of the blocks is not to exceed 50,000 acres.” 4. “So far as the configuration of the country admits, the blocks shall front the river or road by which means of access are provided and shall be approximately in the shape of parellelograms of which the frontage shall not be more than half the depth.” 5. «The Company may for fifty years after the surrender, claim in any township or district, within the Fertile belt, in which land is set out for settlement, grants of land not exceeding one twentieth part of the land so set out. The blocks so granted to be determined by lot and the Company to pay a rateable share of the survey expenses not exceeding eight cents Canadian an acre. The Company may defer the exercise of their right of claiming the proportion of each township for not more than ten years after it is set out: but their claim must be limited to an allotment from the lands remaining unsold at the time they declare their intention to make it.” 6. “Tor the purposes of the last article, the Fertile belt is to be bounded as follows—On the South by the United States boundary : on the West by the Rocky Mountains: on the North by the northern branch of the Saskatchewan: on the East by Take Winnipeg, the Lake of the woods and the waters connecting them.” 7. «If any township shall be formed abutting on the north bank of the northern branch of the Saskatchewan River the Company may take their one twentieth of any such township which for the purpose of this article shall not extend more than 21—2 324 APPENDIX, five miles inland from the river, giving to the Canadian Dominion an equal quantity of the portion of lands coming to them of sownships established on the southern bank.” 8. “In laying out any public roads, canals, &c., through any block of land secured to the Company the Canadian Government may take without compensation such land as is necessary for the purpose not exceeding one twenty fifth of the total acreage of the block : but if the Canadian Government require any land which is actually built upon or which is necessary for giving the Company’s servants access to any river or lake, or as a frontage to any river or lake, they shall pay to the Company the fair value of the same and shall make compensation for any injury done to the Company or their servants.” 9. “Tt is understood that the whole of the land to be appropriated within the meaning of the last preceding clause shall be appropriated for public purposes.” 10. «All titles to land up to the 8th March, 1869, conferred by the Company are to be confirmed.” 11. “The Company is to be at liberty to carry on its trade without hindrance in its corporate capacity and no exceptional sax is to be placed on the Company’s land, trade or servants nor any import duty on goods introduced by them previous to the surrender.” 12. “Canada is to take over the materials of the electric telegraph at cost price—such price including transport but not including interest for money and subject to a deduction for ascertained deterioration.” 13. “The Company’s claim to land under agreement of Messrs Vankvughnet and Hopkins is to be withdrawn.” 14. “ Any claims of Indians to compensation for lands required for the purposes of settlement shall be disposed of by the Canadian Government in connection with the Imperial Government and the Company shall be relieved of all responsibility in respect of them.” 34 and 35 Vie. (i) co. 28. An Act respecting the establishment of Provinces wn the Dominion of Canada. [29 June, 1871.1 WHEREAS doubts have been entertained respecting the powers of the Parliament of Canada to establish Provinces in territories admitted, or which may hereafter be admitted, into the Dominion of Canada, and to provide for the representation of such Provinces in the said Parliament, and it is expedient to remove such doubts and to vest such powers in the said Parliament: Be it enacted 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. This Act may be cited for all purposes as “The British Short North America Act 1871.” Tile, 9. The Parliament of Canada may from time to time establish Pals : new Provinces in any territories forming for the time being part Canada of the Dominion of Canada, but not included in any Province Jy ate. thereof, and may, at the time of such establishment, make Provivees provision for the constitution and administration of any such ans Be Province and for the passing of laws for the peace, order and good tl government of such Province, and for its representation in the tution, du. said Parliament. thereof. 3. The Parliament of Canada may from time to time, with the Alteration consent of the Legislature of any Province of the said Dominion ied increase, diminish or otherwise alter the limits of such Province upon such terms and conditions as may be agreed to by the said Legislature, and may with the like consent make provision respecting the effect and operation of any such increase or diminution or alteration of territory in relation to any Province affected thereby. on war APPENDIX. Parliament of . , ’ Janada 4. The Parliament of Canada may from time to time make aaY Jegis- provision for the administration, peace, order and good government any terri- Of any territory not for the time being included in any Province, ory not included na Province. Confirma 5. The following Acts passed by the said Parliament of on “ Canada and intituled respectively :— Zug “An Act for the temporary government of Rupert's Land Canada and the North-Western Territory when united with 32 & 33 Viet. (Can. Canada ;” and on 5 3, “An Act to amend and continue the Act 32 and 33 Viet. c. (Cana. : 3, and to establish and provide for the government dian) c. 3. of the Province of Manitoba” shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent in the Queen's name of the Governor-General of the said Dominion of Canada. Limitation ~~ 6. Except as provided by the 3rd section of this Act it shall of Pomeds DOb be competent for the Parliament of Canada to alter the to legislate provisions of the last mentioned Act of the said Parliament in so Jor J en far as it relates to the Province of Manitoba, or of any other Act Province. hereafter establishing new Provinces in the said Dominion subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the jualification of electors and members of the Legislative Assembly and to make laws respecting elections in the said Province.” 38 and 39 Vie. (i) c. 38. An Act to remove doubts with respect to the powers of the Parliament of Canada under section 18 of the British North America Act 1867. M9 July, 1875.] Waereas by section 18 of the British North America Act 1867 30 & 81 2 2 Vie. ¢. 8. it is provided as follows : «The privileges, immunities and powers to be held, enjoyed and exercised by the Senate and by the House of Commons and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that the same shall never exceed those at the passing of this Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the members thereof.” And whereas doubts have arisen with regard to the power of defining by an Act of the Parliament of Canada in pursuance of the said section, the said privileges, powers or immunities ; and it is expedient to remove such doubts : Be it therefore enacted 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. Section eighteen of the British North America Act 1867 Substituis hereby repealed, without prejudice to anything done under that ion of section, and the following section shall be substituted for the tion for : section 18 section so repealed. of 30 & 581 The privileges, immunities and powers to be held, enjoyed and Vie. ¢. 3. exercised by the Senate and by the House of Commons and by the members thereof respectively, shall be such as are from time to time defined by Act of the Parliament of Canada, but so that any Act of the Parliament of Canada defining such privileges, immuni- 328 APPENDIX. ties and powers shall not confer any privileges, immunities or powers exceeding those at the passing of such Act held, enjoyed and exercised by the Commons House of Parliament of the United Kingdom of Great Britain and Ireland and by the members thereof. Confirma- 2. The Act of the Parliament of Canada passed in the 31st tu year of the reign of Her present Majesty, chapter 24, intituled dian Par- ““ An Act to provide for oaths to witnesses being administered in lament. orain cases for the purposes of either House of Parliament” shall be deemed to be valid and to have been valid as from the date at which the Royal assent was given thereto by the Governor-Geeneral of the Dominion of Canada. Short title. 3. This Act may be cited as “The Parliament of Canada Act 1875.” 49 and 50 Vie. (i) c. 35. An Act respecting the representation in the Parliament of Canada of Territories which Jor the time being form part of the Dominion of Canada but are not included in any Province. [25 June, 1886.) WHEREAS it is expedient to empower the Parliament of Canada, to provide for the representation in the Senate and House of Commons of Canada, or either of them, of any territory which for the time being forms part of the Dominion of Canada but is not included in any Province : Be it therefore enacted 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 :— Provision 1. The Parliament of Canada may from time to time make x pe provision for the representation in the Senate and House of Canadafor Commons of Canada or in either of them of any territories which represen- : : 5 i ) ] tation of for the time being form part of the Dominion of Canada but are ferritory, not included in any Province, 49 AND 50 vic. c. 35. 399 9. Any Act passed by the Parliament of Canada before the Pitiees 2 passing of this Act for the purpose mentioned in this Act shall if Porlinnot disallowed by the Queen be and shall be deemed to have been ment of valid and effectual from the date at which it received the assent Canada. in Her Majesty's name of the Governor-General of Canada. Tt is hereby declared that any Act passed by the Parliament of Canada whether before or after the passing of this Act for the purposes mentioned in this Act or in the B. N. A. Act 1871 has haa effect notwithstanding anything in the B. N. A. Act 1867 and the 30431 Vic. number of Senators or the number of Members of the House of ¢. 3. Commons specified in the last mentioned Act is increased by the number of Senators or of Members as the case may be provided by any such Act of the Parliament of Canada for the representa. tion of anv provinces or territories of Canada. 3. This Act may be cited as the British North America Act Shorttitle. 1886. This Act and the British North America Act 1867 and the British North America Act 1871 shall be construed together and may be cited as the British North America Acts 1867 to 1886 DraFT oF LETTERS-PATENT passed under the Great Seal of the United Kingdom, constituting the Office of Governor. General of the Dominion of Canada, Letters Patent, Dated 5th Qctober, 1878. Victoria, by the Grace of God, of the United Kingdom of Grea: Britain and Ireland, Queen, Defender of the Faith, Empress of India ; To all to whom these Presents shall come, Greeting : Whereas We did, by certain Letters-Patent under the Great Seal of Our United Kingdom of Great Britain and Ireland, bearing date at Westminster the Twenty-second day of May, 1872, in the Thirty-fifth year of Our Reign, constitute and appoint Our Right Trusty and Right Well-beloved Cousin and Councillor, Frederick Temple, Earl of Dufferin, Knight of Our Most Tllustrious Order of Saint Patrick, Knight Commander of Our Most Honourable Order of the Bath (now Knight Grand Cross of Our Most Distinguished Order of Saint Michael and Saint George), to be Our Governor-General in and over Our Dominion of Canada for and during Our will and pleasure: And whereas by the 12th section of “The British North America Act 1867,” certain powers, authorities, and functions were declared to be vested in the Governor-General : and whereas we are desirous of making effectual and permanent provision for the office of Governor-General in and over Our said Dominion of Canada, without making new Letters-Patent on each demise of the said Office: Now know ye that We have revoked and determined, and by these presents do OFFICE OF GOVERNOR-GENERAL. 331 revoke and determine, the said recited Letters-Patent of the Twenty-second day of May, 1872, and every clause, article and thing therein contained : And further know ye that We, of our special grace, certain knowledge and mere motion, have thought fit to constitute, order, and declare, and do by these presents constitute, order, and declare that there shall be a Governor-General (hereinafter called Our said Governor-General) in and over Our Dominion of Canada (hereinafter called our said Dominion) and that the person who shall fill the said Office of the Governor-General shall be from time to time appointed by Commission under our Sign-Manual and Signet. And we do hereby authorize and command Our said Governor-General to do and execute, in due order, all things that shall belong to his said command, and to the trust we have reposed in him, according to the several powers and authorities granted or appointed him by virtue of “The British North America Act, 1867”, and of these present TLetters-Patent and of such Commission as may be issued to him under our Sign-Manual and Signet, and according to such Instructions as may from time to time be given to him, under our Sign-Manual and Signet, or by Our Order in Our Privy Council, or by Us through one of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion. II. And We do hereby authorize and empower Our said Governor-General to keep and use the Great Seal of Our said Dominion for sealing all things whatsoever that shall pass the aaid Great Seal, III. And We do further authorize and empower Our said Governor-General to constitute and appoint, in Our name and on Our behalf, all such Judges, Commissioners, Justices of the Peace, and other necessary Officers and Ministers of Our said Dominion, as may be lawfully constituted or appointed by Us. IV. And we do further authorize and empower Our said Governor-General, so far as we lawfully may upon sufficient cause to him appearing, to remove from his office, or to suspend trom the exercise of the same, any person exercising any office within Our said Dominion, under or by virtue of any Commission or Warrant granted, or which may be granted, by Us in Our name or under Our authority. 339 APPENDIX. V. "And We do further authorize and empower our said Governor-General to exercise all powers lawfully belonging to Us in respect of the summoning, proroguing, or dissolving the Parliament of Our said Dominion. VI And whereas by “The British Nori, America Act, 1867,” it is amongst other things enacted, that it shall be lawful for Us, if We think fit, to authorize the Governor-General of Our Dominion of Canada to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion, and in that capacity to exercise, during the pleasure of our said Governor-General, such of the powers, authorities and functions of Our said Governor. General as he may deem it necessary or expedient to assign to such Deputy or Deputies, subject to any limitations or directions from time to time expressed or given by Us: Now We do hereby authorize and empower Our said Governor-General, subject to such limitations and directions as aforesaid, to appoint any person or persons, jointly or severally, to be his Deputy or Deputies within any part or parts of Our said Dominion of Canada, and in that capacity to exercise, during his pleasure, such of hig powers, functions and authorities, as he may deem it necessary or expedient to assign to him or them : Provided always, that the appointment of such a Deputy or Deputies shall not affect the exercise of any such power, authority or function by Our said Governor-General in person. VII. And We do hereby declare Our pleasure to he that, in the event of the death, incapacity, removal or absence of Quy said Governor-General out of Our said Dominion, all ang every the powers and authorities herein granted to him shall, until our further pleasure is signified therein, be vested in such person as may be appointed by Us under Our Sign-Manual and Signet to be Our Lieutenant-Governor of Our said Dominion ; or if there shall be no such Lieutenant-Governor in Our said Dominion, then in such person or bersons as may be appointed by Us under Our Sign-Manual and Signet to administer the Government of the same ; and in case there shall be no person or Persons within Our said Dominion so appointed by Us, then in the Senior Officer for the time being in command of Our regular troops in Our said Dominion : Provided that no such powers or authorities shall OFFICE OF GOVERNOR-GENERAL. 333 vest in such Lieutenant-Governor, or such other person or persons, until he or they shall have taken the oaths appointed to be taken by the Governor-General of Our said Dominion, and in the manner provided by the instructions accompanying these Our Letters-Patent. VIII. And We do hereby require and command all Our Officers and Ministers, Civil and Military, and all other the ‘nhabitants of Our said Dominion, to be obedient, aiding and assisting unto our said Governor-General, or, in the event of his death, incapacity or absence, to such person or persons as may, from time to time, under the provisions of Our Letters Patent, administer the Government of Our said Dominion. [X. And We do hereby reserve to Ourselves, our heirs and successors, full power and authority from time to time to revoke, Jlter or amend these Our Letters-Patent as to Us or them shall seem meet. KX. And We do further direct and enjoin that these Our [Letters Patent shall be read and proclaimed at such place or places as Our said Governor-General shall think fit within Our said Dominion of Canada. In Witness whereof We have caused these Our Letters to be made Patent. Witness Ourself at Westminster, the fifth day of October. in the Forty-second Year of Our Reign. By Warrant under the Queen’s Sign-Manual. ¢. ROMILLY. Drarr or InstrUCTIONS passed under the Royal Sign-Manual and Signet to the Governor-General of the Dominion of Canada. Dated 5th October, 1878. VICTORIA R. Instructions to our Governor-General in and over our Dominion of Canada, or, in his absence, to Our Lieutenant-Governor or the Officer for the time being administering the Government of Our said Dominion. Given at Our Court at Balmoral, this Fifth day of October, 1878, in the Forty-second year of Our Reign. WHEREAS by certain Letters-Patent bearing even date herewith, We have constituted, ordered and declared that there shall be a Governor-General (hereinafter called Our said Governor General) in and over Our Dominion of Canada (hereinafter called Our said Dominion), And we have thereby authorized and commanded Our said Governor-General to do and execute in due manner all things that shall belong to his said command, and to the trust we have reposed in him, according to the several powers and authorities granted or appointed him by virtue of the said Letters-Patent and of such Commission as may be issued to him under Our Sign-Manual and Signet, and according to such Instructions as may from time to time be given to him, under Our Sign-Manual and Signet, or by Our Order in Our Privy Council, or by Us through One of Our Principal Secretaries of State, and to such Laws as are or shall hereafter be in force in Our said Dominion. Now, therefore, We do, by these Our Instructions under Our Sign-Manual and Signet, declare Our pleasure to be, that Our said Governor-General for the time being shall, with all due solemnity, cause our Commission, under Our Sign-Manual and Signet, appointing Our said Governor- OFFICE OF GOVERNOR-GENERAL. 335 General for the time being, to be read and published in the presence of the Chief Justice for the time being, or other Judge of the Supreme Court of Our said Dominion, and of the members of the Privy Council in Our said Dominion: And we do further declare Our pleasure to be that Our said Governor-General, and every other officer appointed to administer the Government of Our said Dominion, shall take the Oath of Allegiance in the form provided by an Act passed in the Session holden in the thirty-first and thirty-second years of Our Reign, intituled “An Act to amend the Law relating to Promissory Oaths ;” and likewise that he or they shall take the usual Oath for the due execution of the Office of Our Governor-General in and over Our said Dominion, and for the due and impartial administration of justice; which Oaths the said Chief Justice for the time being, of Our said Dominion, or, in his absence, or in the event of his being otherwise incapacitated, any Judge of the Supreme Court of Our said Dominion shall, and he is hereby required to tender and adminis ter unto him or them. II. And We do authorize and require Our said Governor-General from time to time by himself or by any other person to be authorized by him in that behalf, to administer to all and to every person or persons as he shall think fit, who shall hold any office or place of trust or profit in Our said Dominion, the said Oath or Allegiance, together with such other Oath or Oaths as may from time to time be prescribed by any Laws or Statutes in that behalf made and provided. III. And We do require Our said Governor-General to communicate forthwith to the Privy Council for Our said Dominion these Our Instructions, and likewise all such others from time to time, as he shall find convenient for Our service to be imparted to them. IV. Our said Governor-General is to take care that all laws assented to by him in Our name, or reserved for the signification of Our pleasure thereon, shall, when transmitted by him, be fairly abstracted in the margins, and be accompanied, in such cages as may seem to him necessary, with such explanatory observations as may be required to exhibit the reasons and occasions for proposing such Laws; and he shall also transmit fair copies of the Journals and Minutes of the proceedings of the 336 APPENDIX. Parliament of Our said Dominion, which he is to require from the clerks, or other proper officers in that behalf, of the said Parliament. V. And We do further authorize and empower Our said Governor-General, as he shall see occasion, in Our name and on Our behalf, when any crime has been committed for which the offender may be tried within our said Dominion, to grant a pardon to any accomplice, not being the actual perpetrator of such crime, who shall give such information as shall lead to the conviction of the principal offender; and further to grant to any offender convicted of any crime in any Court, or before any Judge, Justice, or Magistrate, within Our said Dominion, a pardon, either free or subject to lawful conditions or any respite of the execution of the sentence of any such offender, for such period as to Our said Governor-General may seem fit, and to remit any fines, penalties, or forfeitures, which may become due and payable to Us. Provided always, that Our said Governor-General shall not in any case, except where the offence has been of a political nature, make it a condition of any pardon or remission of sentence that the offender shall be banished from or shall absent himself from Our said Dominion. And We do hereby direct and enjoin that Our said Governor-General shall not pardon or re. prieve any such offender without first receiving in capital cases the advice of the Privy Council for our said Dominion, and in other cases the advice of one, at least, of his Ministers; and in any case in which such pardon or reprieve might directly affect the interests of Our Empire, or of any country or place beyond the jurisdiction of the Government of our said Dominion, Our said Governor-General shall, before deciding as to either pardon or reprieve, take those interests specially into his own personal consideration in conjunction with such advice as aforesaid. VI. And whereas great prejudice may happen to Our service and to the security of our said Dominion, by the absence of Our said Governor-General, he shall not, upon any pretence whatever, quit Our said Dominion without having first obtained leave from Us for so doing under Our Sign-Manual and Signet, or through one of Our Principal Secretaries of State. V. R. Drapr oF A Commission passed under the Royal Sign-Manual and Signet, appointing the Right Honourable the Marquis of Lorne, K.T., G.C.M.G., to be Governor-General of the Dominion of Canada. Dated 7th October, 1878. VICTORIA R. Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, Empress of India, To our Right Trusty and Well-beloved Councillor Sir JouN Doucras SurHerLAND CaMPBELL (commonly called the Marquis of Lorne), Knight of Our Most Ancient and Most Noble Order of the Thistle, Knight Grand Cross of Our Most Distincuished Order of St Michael and St George. Greeting : WE do, by this Our Commission under Our Sign-Manual and Signet, appoint you, the said Sir JouN DovueLAs SUTHERLAND CawueBeLL (commonly called the Marquis of Lorne), until Our further pleasure shall be signified, to be Our Governor-General in and over Our Dominion of Canada during Our will and pleasure, with all and singular the powers and authorities granted to the Governor-General of Our said Dominion in Our Letters-Patent under the Great Seal of Our United Kingdom bf Great Britain and Ireland, constituting the office of Governor, bearing date at Westminster the Fifth day of October, 1878, in the Forty-second year of Our Reign, which said powers and authorities We do hereby authorize you to exercise and perform, according to such Orders and Instructions as Our said Governor-General for the time being hath already or may hereafter receive from Us. And for so doing this shall be vour Warrant. 29) 3838 APPENDIX, II. And we do hereby command all and singular Our officers, Ministers, and loving subjects in Our said Dominion, and all others whom it may concern, to take due notice hereof, and to give their ready obedience accordingly. Given at Our Court at Balmoral, this Seventh day of October, 1878, in the Forty-second year of Our Reign. By Her Majesty’s Command, M. E. HICKS BEACH. INDEX, Absence of Senator, 148 Adjournment of House of Commons, 119 Adjournment of provincial legislature, 49 Administration, Dominion : appointment of officers, 190 examination required, 191 except in certain cases, 191 oath, 192 promotion, 192 civil service, 191 Departments of state, 193 Deputy-Head, 190, 191 his duties, 191 functions of Governor-General, regarding, 168 officers, how appointed, 190 Administration, Provincial, 84 appointment of ministers, 84 control of, by Dominion, 262 departments, 85 Crown Lands, 86 Education, 86 Law officer, 85 Provincial Secretary, 86 Provincial Treasurer, 86 Public Works, 86 number of Executive Council, 84 Administration of justice, powers regarding, 242, 243 Admiralty Courts, jurisdiction of, 240 Advice of ministers, when Governor-General must follow, 185 Ace of Senators. 144 Agriculture, powers of Dominion and the provinces, 256 Agriculture, Department of, 208 duties, 208 officials, 208 Aliens, 246 Allegiance, oath of, required from Senators, 145 Alteration of laws existing at Union. 259 Amendment of Constitution, 229 Annual Sessions of provineial legislature, 52 Appeals to Privy Council, 221 by permission of Her Majesty, 221 effect of Canadian Act taking away appeals, 221 election petitions, 221 in insolvency, 221 Appeals from Exchequer to Supreme Court, 217 Appointment ; of legislative councillors, 74 of Lieutenant-Governors on advice of Ministers. 188 of Senators, 145 Appropriation Bill, not referred to a Committee, 157 Area of Canada, 14 Army, Command-in-chief in Queen, 169 Assent to bills, 165, 187 Attorney-General acts as minister of justice, 183 Audit office, 198 99 340 INDEX. Auditor-General, 198 duties. 198. 201 Civil Service, jurisdiction of Dominion, 242 Clerk of House of Commons, 139 Commission of Governor-General, 163 Commission of Lieutenant-Governor, 80 Committee: bills relating to trade or money introduced in, 153 bills usually referred to, 157 except the Appropriation bill, 157 chairman of, 158 examination of witnesses before, 157 kinds of, 155 1. of the whole, 155 2. special, 155 (a) Standing Committees, 155 for what subjects appointed, 155 number of members, 155 (b) Special, to consider specific subjects, 156 number of members, 156 who can be members, 156 3. joint, 156 on private bills. how nominated, 161 procedure on going into Committee, 158 report, 158 Communications between House of Commons and Senate, 159 Conference between the two Houses. 159 Conflicts between Provinces and Domi. nion, 11 Congress of United States, compared with Dominion Parliament, 9 Consolidated Fund, 199, 202 Constitution, sources of law of, 40 amendment of, 224, 265. 266 as regards House of Commons, 230 Governors, 230 Legislative Assembly, 231 Legislative Council, 230 Privileges, 231 Constitutional Act 1791. 18 Ballot, voting by, 65, 1834 Banking, regulation of, 256 Bankruptcy, 247 jurisdiction regarding, 247 meaning of word in section 91, 250 of Senator, 148 procedure, 252 Banks, incorporation of, 255 tax on, 237 Bills, three readings required, 79, 152 Bills of Exchange, regulation of, 256 Breach of Privilege, 70 British Columbia: History of the Province, 29—31 early government, 29 rights of Hudson’s Bay Company. 29 constitution, 29 governor appointed, 30 governor legislates, 30 legislative Council appointed, 30 seat of Government, 31 onion with Vancouver’s Island. 31 Admitted into Dominion, 31 Courts of Civil jurisdiction, 104 of Criminal jurisdiction, 108 Legislative Assembly : distribution of seats, 48 method of election, 64 privileges, 67 qualification of members, 61, 62 of voters, 60 quorum, 66 resignation, 71 speaker, 66 Terms of Union, 813 British North America Act. 278 Cape Breton, 24 Census, 241 Chairman of Committees, 189, 158 Charlottetown Conference, 21, 37 Citizenship of Senators, 144 Jitizenship, loss of by Senator. 148 INDEX. 34] its provisions, 18 refused to do so in 1873, 143 failure of, 18 Curreney, regulation of, 256 Contractors : Justoms of Parliament, 42 lisqualified sitting in Assembly, Justoms, alteration of laws regarding, 62 285 disqualified sitting in House of Customs, Department of: Commons, 129 duties, 197 cannot be members of Senate, 145 officers, 197 Contracts with the government, Sena- transfer to new department, 198 tors, how affected, 145 Copyright, 255 Departments of State: Corrupt Practices: ‘ in the Dominion, 193 at provincial elections, 65 Agriculture, 208 Jisqualify from sitting in House Customs, 197 of Commons, 130 Finance, 198 disqualify from sitting in Provin- High Commissioner, 214 cial Assemblies, 62 {ndian Affairs, 213 disqualify from voting, 127 Inland Revenue, 196 Courts, power to establish, 243 Interior, 195 Court for trial of Election Petitions. Justice, 206 220 Marine and fisheries, 200 Court of Appeal, power to establish, Militia and defence, 210 242, 243 Post office, 205 Court of Appeal, see Supreme Court. Public Printing and Stationery, 216 194 Court of Exchequer, see Exchequer Public works, 202 Court, 216 Railways and Canals, 204 Conrts of Civil jurisdiction : Secretary of State, 193 1. Provincial, 88 in the provinces, 84 2. Dominion, 216 Denominational schools, 247 Jourts of Criminal jurisdiction: appeal to Governor in Council, 1. Provincial, 108 169, 187 2. Dominion, 108 Deposit by Candidates, 134 Crime, conviction of Senator, 148 Developments of the Constitution, Criminal Law : 12 Dominion powers, 242 Disallowance of Provincial Acts, 174, powers of Congress, 9 260 Provincial powers, 242, 243 Acts disallowed, 260 ‘unctions of Attorney-General, 245 advice of ministers, 260 punishments, 245 dispute with Manitoba, 262 temperance laws, 244 railway Acts, 262 Crown: Disqualifications for sitting in Provin-Command-in-Chief of militia, 210 cial Assemblies, 61, 62 nead of Executive, 164 of legislative Councillors, 74 may alter seat of government, 266 of Members of House of Commons. may veto Dominion Acts, 271 : 129 Yenate, may add six members to, of voters for House of Cominons, 143 126 342 INDEX. Disqualifications of voters for Provin- Duration of Parliament, 8 cial Assemblies, 60 Dissolution of Parliament, advice of Education, 246 ministers, 186 Dominion powers, 247 Dissolution : appeal to Governor-General, 247 of Dominion Parliament, 121 Provincial Powers, 247 by demise of Crown, 122 Election of legislative Councillors in Governor-General, 121 Prince Edward’s Island, 74 lapse of time, 121 Election Petitions, 137 of provincial legislature, 49 in case of provincial elections, 65 Distribution of seats: in Dominion, how tried, 138 in the Dominion, 124 jurisdiction of Dominion, 245 in the Provinces, 63 Electoral Districts : Divorce, 246 in the Dominion, 124 Divorce Bills, 161 in the Provinces, 63 Domicile, effect of, on debts, 248 Electors of Provincial Assemblies, 55 Dominjon Acts, affecting Constitution. British Columbia, 60 3, 41 Manitoba, 59 Dominion Administration, see Admini- New Brunswick, 58 stration, Nova Scotia, 57 Dominion Parliament : N. W. Territories, 60 dissolution, 121 Ontario, 56 functions of Governor-General, Prince Edward’s Island, 59 121 Quebec, 57 Dominion Parliament : Enacting clauses in the provinces, 52 Opening, 112 English Constitution, influence of. on Commons, proceedings in, 112 Canada, 8 election of Speaker, 112 Evidence of a member’s return, 186 oath of allegiance, 112 Exchequer Court, 216 reading bill, pro forma, 114 appeals from, 217, 218 roll of members, 112 concurrent jurisdiction of, 217 Senate, proceedings in, 112 enforcement of process of, 219 Speech of the Governor-General, exclusive jurisdiction of, 217 116 Executive, see Administration. address in reply to, 115 Executive Councils, 84 consideration of, 115 Executive power, sphere of, 4 Payment of members, 118 Excise, alteration of laws regarding. Privileges, 117 235 defined by Statute, 117 Expenses of Dominion elections, 125 Prorogation, 120 Expropriation Act, 204 effect of, 120 Quorum, 116 in House of Commons, 116 in Senate, 116 Summoning, 110 on advice of Privy Council, 111 powers of Governor-General, 111 proclamation, form of, 111 Federation, proposals for, 21 Finance, Department of : accounts, 202 audit office, 198 Auditor-General, 199 duties of, 201 consolidated fund, 199. 209 INDEX. payment of moneys, 200 sertificate of Auditor-General, 201 exceptional cages, 201 revenue, sources of, 199 Treasury Board, 199, 201 First reading, in Commons, 154 Fisheries are ¢“ property,” 248 Fisheries, 241 extent of Dominion powers, 241 Form : of appointment of Senators, 146 of Commission of the Governor-General, 163, 337 of Commission of Lieutenant-Governor, 80 of disallowance of provincial bills, 178 of Instructions to Governor-General, 163 of proclamation dissolving a provincial legislature, 51 of Letters Patent creating office of Governor-General, 331 of proclamation of returning officer, 133 of proclamation proroguing a provincial legislature, 50 of proclamation summoning Dominion Parliament, 111 of report on provincial bills, 176 of return to writ of election, 135 of Speaker’s warrant for an election, 132 of summoning provincial legislature, 45 of writ for election of members of House of Commons, 131 Franchise, uniformity in, 7 Yreedom of speech. 69 Geological Survey, 195 Governors, list of, 275 Governor-General : a Corporation sole, 164 appointed by Commission, 164 Commission issued to, 163 Jigsolution of Parliament, 121 8483 [nstructions issued to, 163 Letters Patent creating the office, 163 changes introduced in 1867, 163 powers conferred by, 163 office of, created by Letters Pa tent, 162 position of, 9 Powers as regards the Dominion Legislature : L. appoints Senators, 164 may recommend six additional members, 164 9, appoints the Speaker of the Senate, 164 3. summons House of Commons, 164 4. recommends money grants,164 5. prorogues and dissolves the legislature, 165 6. assents to bills, 165 assent not conclusive, 166 may reserve bills, 165, 166 may veto bills, 165 not bound to follow advice of Ministers, 166 ought to be satisfied bill is legal, 166 receives report from Minister of justice, 166 royal assent, how given, 167 4s regards Party Government : consulting Home Government. 167 in Iroperial matters to follow his own judgment, 167 in local matters, advice of Ministers to be followed, 167 law officers, consultation of, 168 prerogative matters, 168 ds regards the Dominion Executive : appoints Ministers, 168 army and navy, relations to 169 may remove Ministers, 168 represents the Crown, 168 ds regards the Judicature : appoints judges, 170 344 INDEX. Governor-General : exercises right of pardon, 170 capital offences, 170 non-capital offences, 170 offences involving Imperial interests, 171 when he consults Ministers, 171 hears appeal in Educational matters, 169 . removal of Judges, 168 ds regards Prerogative Powers : may appoint Queen’s Council, 17¢ 4s regards the Provinces : appoints Lieutenant-Governors, 173 may disallow Provincial Acts, 17 Acts disallowed, 178 course adopted, 175 form of report of Privy Council, "176 form of disallowance, 178 power seldom exercised, 177 prorogues Parliament, 120 responsibility of, 177 not to the Colony, 179 proceedings against, 181 to the Crown, 179 to Law, 179 . for acts not within his authority, 180 not for State acts, 180 to the Imperial Parliament, 179 salary of, 164 may be varied, 230 term of office. 164 High Commissioner, 214 duties of, 215 salary, 215 Hour of meeting of legislative Councils, 77 Hours of polling in provincial eleetions, 65 House of Commons, 7 counts-out rare, 150 disqualifications of electors, 126 disqualifications of members, 126 contractors. 1929 corrupt practices, 130 election to Provincial legisla. ture, 128 holding offices under Crown. 129 revising officers, 130 sheriffs and other officers, 130 distribution of seats, 124 Election Petitions, 187 Courts for trial of, 138 Corrupt practices, 138 government orders, 151 internal arrangements, 14¢ method of election, 130 form of writ, 130 nomination, 134 return to writ, 135 notices of motion, 151 number, 123 officers of the House : Clerks, 140 Sergeant-at-arms, 139 Speaker, 138 order of business, 150 petitions, 151 for money, 151 as to taxes, 152 powers of Dominion, 231 private bills, 152 public bills, 152 qualifications of Electors, 124 age, 125 citizenship, 125 property qualification, 125 annuity, 125 fishermen, 126 Indians, 126 occupancy, 125 ownership, 125 residence, 125 sons, 125 revision of voters’ lists, 127 qualifications of Members ; age, 128 citizenship, 128 questions, 151 resignation of Members, 140 acceptance of office, 141 INDEX. 345 enfranchised, 214 unenfranchised, 214 qualified to vote, when, 56, 60, 127 [nland Revenue, Department of, 196 duties, 197 officers, 197 transfer to new department, 193, Imperial Acts relating to Constitution, 197 40 ‘nsolvency, see Bankruptcy. Imperial control of Dominion, 265 Instructions : Crown may veto Dominion bill, as to reservation of bills, 271 271 given to a Committee, 158 bills may be reserved, 271, 272 of Governor-General, 42. 163 instructions as to bills, 271 [nterest, regulation of, 256 Crown cannot veto Provincial bill, Interior, Department of, 195 268 duties, 195 (Governor-General may consult geological survey, 196 Imperial Government, 269, Introduction of bills, 153 270 by motion, 153 wnterference of home Govern- in Committee, 153 ment with Provincial bills, Introduction of bill, in Senate, no 269 notice required, 154 setitions regarding Provincial Introduction : bills, 270 of Members of House of Commons, [Imperial Parliament has concur- 137 rent legislative powers, 267 of Senators, 146, 147 Acts passed by the Imperial Parliament, 268 Judges : Limitations on powers of Domi- appointment of, 170, 222 nion, 265 removal of, 170, 222 altering Constitution, 265, 266 Judicature, functions of Governoraltering Imperial Acts, 266 General, 169 seat of Government, 266 appoints Judges, 168 mposing duties between pro- pardons offenders, 170 vinces, 266 removes Judges, 170 taxing public lands, 266 Judicature, Dominion : Imperial interests, 167, 168, 185 Appeals to Privy Council, 221 {mperial Parliament, legislative power Courts: . of, 226 Court for trial of election peti-Immigration, powers of Dominion and tions, 220 the Provinces, 256 Criminal Courts, 108 {ndian affairs, Department of, 213 Exchequer Court, 217 duties, 214 Maritime Court, 220 officers, 214 Supreme Court, 216, 218 Superintendent of, 213 establishment of Courts, 216 Indians : importance of, 11 Dominion powers over, 246 Judges, appointment of, 222 346 Judicature, Provincial, 88 1. Civil Jurisdiction : British Columbia. County Courts, 104 Small Debts Court, 104 Supreme Court, 104 Manitoba. Assizes, 103 County Courts, 102 Queen’s Bench, 103 New Brunswick. Civil Courts in cities, 99 County Courts, 100 Divorce Court, 100 Justices’ Court, 98 Local Courts, 99 Parish Courts, 99 Probate Courts, 100 Supreme Court, 107 Nova Scotia, Admiralty Court, 98 County Courts, 97 Divorce Court, 98 Justices’ Court, 97 Probate Court, 98 Supreme Court, 98 North West Territory, 107 Supreme Court, 107 Ontario. Appeal, Court of, 96 County Courts, 93 Division Courts, 92 Heir and Divisee Commission, 95 High Court, 95 Maritime Court, 94 Supreme Court, 95 Surrogate Court, 95 Prince Edward’s Island. County Courts, 105 Divorce Court, 106 Insolvent Courts, 106 Justices’ Court, 105 Marine Court, 106 Small Debts Court, 105 Supreme Court, 106 Surrogate Court, 106 INDEX. Quebec. Admiralty Court, 91 Circuit Courts, 89 Commissioners’ Court, 89 Justices’ Courts, 88 Queen’s Bench, 91 Recorder’s Court, 89 Review, Court of, 91 Superior Court, 90 Trinity House, 89 Criminal Jurisdiction : consideration of Crown Cases reserved, 109 County Courts, 109 Oyer and Terminer, Courts of, 109 Quarter Sessions, 108 Supreme Court, 109 Juries, exemption from serving on, 69 Justice, Administration of, 242 Dominion powers : Courts, organization of, 242, 243 Criminal Law and Procedure, 242 Election Petitions, 243, 245 Penitentiaries, 243 Provincial Powers : Courts, organization of, 242 enforcement of provincial laws. 243 justice, administration of, 242, 243 procedure in civil matters, 242, 246 reformatory prisons, 243 Justice, Department of, 206 Attorney-General ex officio Minister, 207 his duties, 207 Justices of the Peace, appointment of, 170 2) Keewatin, District of, 85 formed in 1876, 35 how governed, 85 powers of Lieutenant Governor. QR INDEX. Law officers, consulting, 168 Legislation, initiation of, 185 Legislation, method of, see method of Legislation, Legislative Assemblies, 55— 71 constitution of, may be altered, 231 Distribution of Seats, 63 Elected, qualifications of, 61, 62 must be a British subject, 61 a male of full age. 61 additional qualifications in certain provinces, 61 persons disqualified, 61, 62 Electors, qualifications of, 55— 61 general qualifications, 55 special qualifications : British Columbia, 60 Manitoba, 59 Nova Scotia, 57 New Brunswick, 58 North West Territories, 60 Ontario, 55 Prince Edward’s Island, 59 Quebec, 57 Disqualifications, 60 Method of Election, 64—66 notice of Election, 64 nomination of Candidates, 64 voting, 65 corrupt practices, 65 return to writ, 65 election petitions, 65 oaths of Members, 65 Privileges, 66 not expressly conferred by B. N. A. Act, 66 Acts defining privileges disallowed, 67 Acts allowed to come into force, 67 Ez parte Dansereau, 67 Landers v. Woodworth, 67 implied privileges, 68 statutory privileges, 69 arrest, freedom from, 69 347 juries, exemption from, 69 publication of papers, 70 privilege, breach of, 70 witnesses, attendance of, 70 Quorum, 66 Resignation of Members, 71 by oral notice, 71 by written notice, 71 effect of resigning before taking seat, 71 Speaker, how he resigns, 71 Speaker, 65 how appointed, 66 deputy Speaker, 66 Legislative Council, 72—79 Councillors, in what provinces, 72 appointed in certain provinces, 74 elected in Prince Edward’s Is. land, 74 partlyin North West Territories, 75 how disqualified, 74 number in each province, 72 province may abolish, 230 qualifications of, 73 i. Citizenship, 73 2. Age, 78 3. Property, 73 4. Residence, 73 5. Oath, 74 resignation of, 76 Privileges of, 76 Quorum, 76 Speaker of, 75 Legislative Power, 224 concurrent powers of Imperial Parliament, 266 division of, between Dominion and Provinces, 6, 9, 223 implied powers, 227 limitations on, 264 method of interpretation, 229 principles followed by the Courts, 224 scheme of the Act, 224 Legislation of Dominion, 110 348 INDEX. jurisdiction, 220 Marriage, 246 Meetings : of the Privy Council, 189 of the Senate, 147 Members of Provincial Legislatures, qualifications of, 61 Method of election of Members of House of Commons, 130 Method of Dominion Legislation : governed by orders and resolutions, 149 order of business, 150 petitions, 151 public bills : introduction, 153 first reading, 154 second reading, 154 committee, 155 report, 158 third reading, 158 passing of bills, 159 private bills: petitions for, 159 committee, 160 Manitoba : Senate, proceedings in, 159 Courts of Civil jurisdiction, 102 Method of Provincial Legislation, 77— of Criminaljurisdiction,108 79 distribution of seats, 64 committees on bills, 79 tlistory of Province, 26— 29 hour of meeting, 77 formed out of North West Terri- money bills, 79 tories, 27, 28 order of business, 77 first Governor, 29 private bills, 79 constitution conferred on it, 29 public bills, 78 Legislative Assembly, 59 readings of bills, 79 method of election, 64 Militia : privileges, 67 Command-in-Chief in Queen, 169 quorum, 66 jurisdiction of Dominion, 239 resignation, 71 Militia and Defence. Department of, Speaker, 66 210 Representation in Senate, 142 Active Militia, 212 Marine, jurisdiction over, 240 how called out, 213 Marine and Fisheries, Department of, command of the forces, 210 209 company, how made up, 212 duties, 209 militia, classification of, 212 officers, 210 military Districts, 211 Maritime Court of Ontario, 220 minister, powers of, 210 appeals from, 220 period of service. 2192 Legislatures, Canada subject to three, 5 Letters Patent, 42 changes introduced into, 162 creating office of Governor-General, 162 powers conferred by, 163 Licenses, province may raise tax by, 235, 238 Lieutenant-Governor, appointment of, R0 form of Commission, 80 not a provincial officer, 230 powers as regards Administration. 82 powers as regards Legislation, 82 removal of, 173, 188 term of office, ‘$3 Limits of Provinces, may be altered. 232 Loans, Dominion may raise, 235 Provinces may borrow on their own credit, 235 Local matters, jurisdiction over, 257 meaning of. 257 INDEX. persons liable to serve, 210 exemptions, 211 Reserve Militia, 212 calling out, 213 substitutes, 212 Ministers, see Privy Council. advice of, in regard to bills. 166, 187 advice of, as to right of pardon, 171, 187 re-election of, 129 Minister of Justice reports on all bills. 166 Money bills, 185 in provincial legislatures, 79 introduced in Committee, 153 sxcept when imposing a penalty, 154 except where of a declaratory nature, 154 must originate in Commons, 152 Money grants, petitions for, not received, 151 - Monopolies, 255 Motion for leave to introduce bill, 153 what bills introduced in Committee, 153 Municipal institutions, 257 alteration of laws regarding, 258 regulation of liquor traffic, 258 Sunday closing Act, 258 Natural History Survey, 196 Naturalization reserved to Dominion. 144, 246 Navigation, 240 Navy, Command-in-Chief in Queen, 169 New Brunswick: Courts of Civil jurisdiction, 98 of Criminal jurisdiction. 108 distribution of seats, 63 istory of the Province, 25, 26 originally part of Nova Scotia, 25 made a separate Colony, 25 tovernor Carleton. 25 349 Legislative and Executive Council, 25 separate legislative Council, 25 control of revenues conceded, 25 responsible government granted, 26 Quebec resolutions passed, 26 Legislative Assembly : method of election, 64 privileges, 67 qualifications of voters, 58,61, 62 Juorum, 66 resignation, 71 Speaker, 66 Legislative Council, 72 Councillors, how appointed, 72 number of, 72 qualifications of, 73, 74 resignation of, 76 privileges, 76 quorum, 75 Speaker, 75 Newfoundland declines to enter Domi. nion, 38 Nomination of Candidates : at a Dominion Election, 134 for the Legislative Assembly, 64,65 North-West Territories : ceded to Canada, 36 government of, 36 conditions of surrender, 27 Councillors, 756 Court of Civil jurisdiction, 107 of Criminal jurisdiction, 108 distribution of seats, 64 legislative power over, 28 qualifications of voters, 60 representation in Senate, 142 surrendered to Canada, 27 North-West Mounted Police, 207 Nova Scotia: Courts of Civil jurisdiction, 92 of Criminal jurisdiction, 108 Distribution of seats, 63 History of the Province, 22—25 discovered by Cabot, 22 ceded to France 1632, 22 restored to England, 22 350 Nova Scotia : early colonisation, 22 Governor Cornwallis, 22 establishment of a Council, 22 courts of Judicature, 22 plan for calling Assembly, 23 assembly meets 1758, 24 alterations in representation, 24 separation of Executive from Council, 24 Cape Breton separated, 24 re-annexed, 25 proposal for Union, 25 votes in favour of Confederation, 25 Legislative Assembly: method of election, 64 privileges, 67 qualifications of voters, 57 quorum, 66 resignation, 71 Speaker, 66 {,egislative Council, 72 Councillors, how appointed, 72 number of, 72 qualifications of, 78, 74 resignation of, 76 privileges, 76 quorum, 75 Speaker, 75 Number : on Committees, 156, 157 of House of Commons, 123 of members of the Legislative Councils, 72 of Senate. 149 14% INDEX Distribution of seats, 63 History of the Province, 15-22 originally part of Quebec, 17 immigration into Colony, 17 separated from Quebec, 18 its Constitution, 18 rebellion of 1837, 18 Lord Durham’s report, 19 united to Quebec, 19 constituted separate Province, 22 Legislative Assembly: method of Election, 64 privileges, 67 qualification of electors, 55 qualification of members, 61, 62 quorum, 66 regignation, 71 Speaker, 66 Opening of Parliament, 112 of provincial legislatures, 47 Orders in Council ; affecting Constitution, 41 admitting British Columbia, 31 admitting Prince Edward’s Island, 34 admitting North-West Territories into Dominion, 27 Order of business in Legislative Councils, 77, 78 . Orders, standing. 42 Paper Money, issue of, 256 Pardon, right of, 170, 187 Parliament, Dominion : adjournment, 119 dissolution, 121 Oath: how summoned, 110 of legislative Councillor, 74 opening of, 112 of members of House of Commons parties to legislation, 110 136 payment of members, 118 of Senator, 145 privileges, 117 Officers of House of Commons, 138 prorogation, 120 Officers, provincial, 242 quorum, 116 Officers of Dominion, taxes on, 238 Parliament, Imperial: Ontario : Acts passed by, 40, 268 Courts of Civil jurisdiction, 92 legislative powers of, 224, 259, 266 of Criminal jurisdiction. 108 Party Government, 167, 185 INDEX. 35] Patents, 255 qualifications, 73, 74 Payment of Members, in the Provinces, resignation, 76 53 privileges, 76 Penitentiaries, 243 quorum, 75 Petition : Speaker, 75 for imposition of duties, 152 Terms of Union, 318 for moneys not received, 151 Prisons, 243 for what objects received. 152 Private Bills: how presented, 151 definition of, 160 private bills initiated and opposed divorce bills, 161 by, 152 in provincial legislatures, 79 reception of, may be opposed, 151 member may promote its progress. Private Bill, illegal provisions, 160 160 Powers of Governor-General, see Go- may be referred to Supreme Court, vernor-Greneral. 160 Population of Canada, 14 procedure on, 160 Post-Office, Department of, 204 standing Committees, 161 Inspectors, duties of, 204, 206 Privileges: Post-Master-General, powers of, preach of, 70 205 Dominion may define, 231 Postal Union, 206 Imperial Act as to, 327 Prince Edward’s Island : of Dominion Parliament, 117 Courts of Civil jurisdiction, 105 of Legislative Councils, 76 of Criminal jurisdiction,108 of provincial Assemblies, 67 Distribution of seats, 63 of Senators, 147 History of the Province, 32 Privy Council, Canadian: originally part of Nova Scotia, 82 constituted by B. N. A, Act 1867, early Constitution, 32 182 ° first Assembly, 32 Functions of, 185 .egislative Council, 32 (1) as regards Legislation, 185 responsible Government de- assent to bills, 187 manded, 32 dissolving Parliament. 186 granted, 33 initiation of bills, 185 federation rejected, 33 proroguing Parliament, 186 adopted, 34 as regards Administration. serms and conditions of Union, 187 34 appointment of Lieutenant representation in Senate, 142 Governors, 187 Legislative Assembly : of officials, 188 method of election, 64 hearing education appeals. privileges, 67 187 qualifications of voters, 59 pardoning offenders, 187 quorum, 66 summoning Parliament, 186 resignation, 71 (8) as regards the Provinces: Speaker, 66 appointment of Lieutenant f.egislative Council, 72 Governor, 188 Councillors, election of, 74 disallowance of Acts, 188 numher of. 72 meetings of, 189 352 INDEX. Privy-Council, Canadian : Property, Public: Governor-General not present, of Dominion, 238 189 debts of provinces, 234 members of, 182 of the provinces, 233 number, 182 escheated land, 235 preside over departments of Property qualification, required from State, 184 Senators, 144 resignation of, 185 Prorogation of Dominion Parliament, responsibility of, 189 120 Privy Councillors : effect of, 120 appointment of, 182, 183 form of, 120 principles followed, 183 Prorogation of provincial legislature, resignation of, 185 50 Privy Council, English, appeals, see Proroguing Parliament, ministers to Appeals to Privy Council. be consulted, 186 Procedure : Protective duties, between provinces, in Civil suits, 246 266 in Criminal matters, 242 Provinces : Proclamation : formation of new, 233 dissolving a provineial legislature, Dominion control over, 260 51 the administration, 262 proroguing » ’ the Legislature, 260 50 Powers of Governor-General reissuing writs for new election, garding, 173 47 administrator, appointment of, summoning provincial legislature, 173 46 disallowance of bills, 174 of returning officer, 133 removalof Lieutenant-Governor, summoning Dominion Parliament, 173 111 Provincial Acts: Property and Civil rights: affecting Constitution, 41 assigned to the provinces, 247, 248 enforcing judgments of Courts on, bankruptcy assigned to Dominion, 263 247, 250 legality may be questioned, 263 lebts belonging to persons domi. Provincial Constitutions, cannot be ciled abroad, 248 altered by Dominion, 232 dmitations on Provincial powers, Provincial Legislatures, 44 248 Adjournment, 49 dominion powers regarding Annual Sessions required, 52 bankruptcy, 248 Dissolution, 49 copyright, 249 by Lieutenant-Governor, 49 patents, 249 proclamation, form of, 50 implied dominion powers, 249 by lapse of time, 51 police regulations, 250 Enacting clause, form of, 52 temperance legislation, 250 Opening of the Legislature, 47 procedure in Civil matters, 247 swearing in members, 47 what is included under “property,” election of Speaker, 48 24R the Lieut.-Governor’s speech. 49 (NDEX. Payment of Members, 53 annual allowance, 53 for part of session, 54 deduction for absence, 53 for illness, 53 travelling expenses, 54 how payment is made, 54 Prorogation, 49 powers of Lieutenant-Governor, 49 manner of, 49 form of proclamation, 50 Summoning of the legislature, 44 powers of Lieutenant-Governor, 44 revigion of instructions, 50 form of Summons, 45, 46 Supreme within limits of their powers, 227 Public debt, 235 liability of Provinces to Dominion, 236 ander jurisdiction of the Dominion, 236 Public Property : belonging to Dominion, 233 debts of provinces, 234 :scheated lands, 285 legislative powers regarding, 235 Public Printing, Department of, 194 duties, 194 officers, 194 printing, 194 stationery, 195 Public works: jurisdiction of Dominion and the Provinces, 240 Public works, Department of, 202 duties, 208 officers, 203 Publication of Pavers. 70 Qualifications : of Electors to House of Commons, 124 of Legislative Councillors, 73 of Members of House of Commons, 1929 358 of Members of Provincial Assemblies, 61, 62 of Senators, 144 Quarantine, 239 Quebec: Courts of Civil jurisdiction, 88 of Criminal jurisdiction, 138 Distribution of seats, 63 History of the Province, 15-22 constituted a province, 15 first governor, 15 his powers, 15 his instructions, 15 first Council, 16 arly laws, 16 Quebec Act 1774, 16 its provisions, 16 sffects of American war, 17 division of the Province, 17 Constitutional Act, 18 its provisions, 18 tailure of the Act, 18 . report of Lord Durham, 19 the Union Act 1840, 19 introduction of responsible Government, 19 further changes in Constitution, 20 deadlock in Administration, 21 federal Union, 21 Charlottetown conference, 21 Quebec conference, 21 votes for Federation, 21 Legislative Assembly : method of Election, 64 privileges, 67 qualifications of voters, 57 » of members, 61, 62 quorum, 66 resignation, 71 Speaker, 66 Legislative Council, 72 Councillors, how appointed, 72 number of, 72 qualifications of, 73, 74 resignation of, 76 privileges, 76 guorum, 75 354 INDEX. Quebec, Legislative Council: Speaker of, 76 Quebec, province of, constituted, 15 Quebec Act, 16 Quebec Conference, 21, 37 Quebec resolutions, 37 Queen’s Counsel, 172 Queen's Printer, 194 Quorum : of House of Commons, 116 of legislative Councils, 75 of Provincial assemblies, 66 of Senate, 116. 147 Savings Banks, regulation of, 256 Scheme of the Constitution, 4 Sea-coast, 241 Seat of Government, alteration of, 266 Second Reading in Commons, 154 amendment to, 155 , Secretary of State, Department of, 193 duties of, 193 register branch, 193 . Senate, 6 meetings of, 147 number, 142 powers of Crown to increase, 143 powers of Senate to increase, 142 representation of new Terri: tories, 142 qualifications of Senators, 144 age, 144 citizenship, 144 oath, 145 property, 144 residence, 144 powers of Dominion over, 230 may vary quorum, 230 qualifications of senators, 230 representation of new Provinces. 230 quorum, 147 voting, 147 Senators: - appointment of, by Crown, 143 by Governor-General, 145, 164 form of appointment, 146 introduction of Senators, 146 privileges of, 147 qualifications of, questions as to determined by Senate, 145 resignation of, 146 tenure of office, 147 vacating office, absence of duties, 148 becoming bankrupt, 148 ceasing to be qualified, 148 conviction of erime, 148 losing citizenship, 148 Sergeant at Arms, 140 Qoegional orders, 150 Registration office, 193 Religion, bills relative to, 154 Reserving bills, 165, 166, 272 Resignation : of Members of House of Commons, 140 of Members of legislative assemblies, 71 } of legislative Councillors, 76 of Ministers, 185 of Senators, 147 Responsible government, conceded to Canada, 19 Responsibility : of Governor-General, 179 to colonies, 179 to Crown, 179 to Parliament, 179 to the Courts of Law, 179 Recount of votes, 135 Return of returning officer, 135. 136 Revenue, 199 Revision of Voters’ Lists, 127 Rupert’s Land. ceded to Canada, 27 Salary : of Civil service, how fixed, 242 of Governor-General, 164 may be varied, 230 of Lieutenant- Governors, how fixed, 242 paid by Dominion, 230 of Ministers, 184 of Judges, by whom fixed, 242 INDEX. 355 Shipping, 240 Sources of the Law of the Constitudon: 1. Imperial Acts, 40 9, Dominion Acts, 41 3, Provincial Acts, 41 4. Orders in Council, 41 5. Orders and rules of the Legislatures, 42 8. Usages, 42 7. Letters Patent, Commission and Instructions of the Governor, 42 Speaker, of House of Commons, 138 appoints deputy, 139 duties, 139 election of, 113, 139 Taxation : salary of, 119 limitation on powers of Dominion, Speaker of Legislative Assembly, 75 266 election of, 48 Taxation, Direct, 235 3peaker of provincial Assembly, 68 meaning of, 236 resignation of, 71 provinces may impose, 235, 236 Speaker of Senate, 147 property of Dominion or of Proappointment of, 147, 164 vinces exempt, 235 casting vote, 147 Taxation, Indirect : has a vote, 147 powers of Dominion, 235, 238 salary of, 119 province cannot levy, 235, 238 Special Committees, 156 except licenses, 235, 238 Speech of Governor-General, 114, Temperance Legislation, validity of. address in reply to, 115 249 Speech of Lieutenant-Governor, 49 Term of office : Standing Orders, 42 of legislative Councillors, 75 Summons, of the Dominion Paxlia- of Lieutenant-Governors, 83 ment, 110 of Senators, 147 of provincial legislatures, 44 Territories, government of New, 232 Summoning Parliament, Ministers to Trade, bills relating to, how introbe consulted, 186 duced, 153 Superintendent of printing, 194 Trade and Commerce : Superintendent of Stationery, 195 assigned to Dominion, 253 Supreme Court, 216 Department of, 193 appeals from Exchequer Court, jurisdiction over, 253 217 limitation on Dominion powers, Supreme Court of Canada: 255 compared with Supreme Court of meaning of the words, 253 United States, 3 Treasury Board, 198 constitution of, 218 Treaty obligations. 233 ronsultation of, by Privy Council, 21K criminal jurisdiction, 218 enforcing judgments of, 219, 263 established, 3 jurisdiction in controversies between provinces, 218 maritime jurisdiction, 218 reference of bills to, 218 Suspension of standing orders, 150 Standing orders, 149 suspension of, 149 Senate suspends in cases of urgency, 152 Standing Committees, 155 Status, jurisdiction regarding, 246 Statistics, 242 356 INDEX. Union of the Provinees : Vancouver’s Island : Nova Scotia takes initiative, 37 discovered 1591, 30 Charlottetown Conference, 37 granted to Hudson’s Bay Co., 30 Quebec Conference, 37 Governor appointed, 30 The Quebec resolutions, 37 Legislative Council, 30 adopted by Canada, 38 Legislative Assembly, 30 by New Brunswick, 38 United to British Columbia, 31 by Nova Scotia, 38 Veto: rejected by Newfoundland, 38 of Crown, 271 B. N. A. Act passed, 39 provincial bills, 269 British Columbia admitted, 31 of Governor-General, 260 Prince Edward’s Island admitted, rarely exercised, 260 34 Voting, method of, in provincial elec. United States, differences between tions, 65 Canada and, 2 Usages, 42 Warrant for Election, 182 Weights and Measures, 242 Witnesses, attendance of, 70 Witnesses, examination of before Com-‘mittees, 1567 Writ for election of Members of House of Commons. 130 Vacancies in Senate, how created, 147, 148 Vacating seat, on appointment to Privy Council 184 CAMBRIDGE : PRINTED BY C. J. CLAY, M.A. & SONS, AT THE UNIVERSITY PRESS. Tg 3 | 2 50 £ : i : > 5 a m ; (4) 3 Q NS oo NY (5) 5 (6) wm tn > in NORTH AMERICA ACT, 1867. 283 iersonal property shall be together worth dollars over and above his debts and ssident in the Province for which he is Quebec he shall have his real property 1 the Electoral Division for which he is hall be resident in that Division. A - 4. Queen’s. summon provisio] and be 4 25. the as thinks Queen's 26. (Jeneral be adde to three equally ingly. 27. Govern wiih recom represd 98 seventy 29. hold hi 30. the (i¢ npon L - o0 ls —y — nN —-ok — i C oo = Ca) Q NN < os oO -p mo - > -~] -Geeneral shall from time to time, in the Summons rument under the Great Seal of Canada, offunator. ons to the Senate; and, subject to the every person so summoned shall become a Senate and a Senator. shall be first summoned to the Senate as Summons under Her Majesty's Royal Sign Manual lie and their names shall be inserted in the Senators. of Union. 5, on the recommendation of the Governor- Addition nks fit to direct that three or six Members Cod or e, the Governor-General may by summons tain cases. 1 persons (as the case may be), representing ions of Canada. add to the Senate accordich addition being at any time made the Reduction J not summon any person to the Senate, of Dansky, like direction by the Queen on the like number. 1 each of the three divisions of Canada is four Senators and no more. of Senators shall not at any time exceed Maximum number of Senators. hall, subject to the provisions of this Act, ienate for life. Tenure of place in Senate. ay by writing under his hand, addressed to , resign his place in the Senate, and theree vacant. Resignation of place in YQenate. Q yy w oo ~~ > B 3 NP - 00 0 Pre) m prey