John George Bourinot, Federal Government in Canada (1889)

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Date: 1889-12
By:Bourinot, John George
Citation: John George Bourinot, Federal Government in Canada (Baltimore: Johns Hopkins University, 1889).
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History is past Politics anal Politics present llistory —Freenwm.






BY JOHN G.§fi£&RINO’l‘, HON. LL.D., D. C. L.

own -z/ the House qf C’0mmoM of camza; 11 army Secretary 0/ me new Socidy of (Jauula ,- Author
af1’nrliamavuaryP1nctI‘4:¢ and Promdurein Canada, Manual of the canmmsomz mum,
42/‘ Canada, Local ammmm: in Gunmla (in John Hopkins vnamaay
mum. 521; Series, v-vi.)


October, November, December, 1889

(kxxwxzxum, 1889. In! N. Mummy.

JOHN nluxmxx’ S. 00., PRINTEIKS.


Lnpmuarz I. Hrsmotucu Ommnm or POLITICAL DEVELOPMENT… 7_
II. GENERAL FEATURES on Irma FEDERAL Sysmn: ……. .. 29




Page 32, line 21, for t1n’.rd mad fourth.
“ 130, “ 17, “ two or three “ five.
“ I47, “ 22, “ $1500 $10,000.
“ 148, “ 24, “ legislative depamtment “ judicial department.
” 151, “ 20, “ another bylaw “ the question again.




7,~,._.. ,9. ,4




In the course of this and the following lectures,‘ I propose
to direct your attention to the Federal constitution of the
Dominion of Canada. My review of the system of govern~
ment which we now possess must necessarily be limited in its
scope. I can but give you an outline of its leading features
and a very imperfect insight into its practical operation. I do
not pretend to do more than lay before you a mere sketch—~
perhaps not more than a tracing of the architeet’s work-—anél
point out the strength and harmony of the proportions of the
national structure which Canadian statesmen are striving to
perfect on the northern half of the continent. At the same
time I shall endeavor to indicate what seem, in the opinions
of competent authorities, to be such defects and weaknesses as
must always, sooner or later, show themselves in the work of
human hands. ‘

It is necessary that I should at the outset briefly trace the
various steps in the political development of British North
America, so that you may the more clearly understand the

‘These four lectures were read during; the month of May, 1889, before
Trinity University, Toronto, Canada, and are now printed for the fixst time
with some notes and additions to the text.


1 21S2f’i“7’

8 Federal Government in Otmada. [464

origin and nature of our present system of government. Nor
can I well leave out of the consideration some references to
the political institutions that existed in Canada previous to
17 59-60. Such a review will not give any evidence of polit-
ical progress, but it would be very incomplete if it did not
lay before you the characteristics of a system of government
which is not simply interesting from an antiquarian or his-
torical point of view, but also on account of the comparisons
it leads us to make between the absolutism it represented and
the political freedom which has been the issue of the fall of
Quebec in 1759, and of the supremacy of England in Canada.

But there is another important consideration which renders
it absolutely necessary that 1 should give more than a passing
allusion to the French period of Canadian history. Though
more than a century and a quarter has passed since those days
of the French regime, many of the institutions which were
inherited from old France have become permanently estab-
lished in the country, and we see constantly in the various
political systems formed in Canada from time to time the
impress of those institutions and the influence of the people of
French Canada.

As the most convenient method of dealing with this part of
my subject, I shall leave the consideration of the political
development of Nova Scotia and the other small provinces
until the last lecture, when I come to review the present con~
stitution of their governments and legislatures. I shall eon-
fine myself for the present to the political history of the large
country generally known as Canada until 1867, and now
divided into the provinces of Ontario and Q,uebcc. This
history may be properly divided into several Periods, varying
in the number of years from the time Champlain laid the
foundation of the French colony on the banks of the St. Law~
rence, down to the establishment of the system of federation.

‘ First of all we have the period when France claimed do-
minion over the extensive il1—(lefine(l territories watered by the
St. Lawrence and the great Lakes and including the valleys

465] Federal Government in Ca/nada. 9
of the Ohio and the Mississippi Rivers. During this period
which lasted from 1608 to 1759-60,-—-for it is not necessary
to refer to the abortive expedition of the Marquis de la Roche
or to the voyages of Jacques Cartier which did not lead to
immediate colonization,—Canada was under the control for
a number of years of proprietary governments chartered by
the king to carry on trade in the country whose furs were
already highly valued in the markets of Europe. In those
days of chartered corporations the governor was radically
supreme and exercised executive, legislative and judicial powers
with the assistance of a council which he consulted according
to his pleasure. By 1663, however, Louis XIV. decided under
the advice of the eminent statesman Colbert to take the gov-
ernment of Canada into his own hands, but the measures he
proposed were for a while kept in abeyance on account of a
charter for commercial purposes being granted to a new con1~
pan y under the influence of courtiers anxious to use the colony
for their own selfish purposes. But Colbert was ambitious to
extend the commerce of France and establish colonies wherever
she had a foothold, and in this respect he was wise above
statesmen of his day. Accordingly we find that on the failure
of the new company to realize its expectations no fresh effort
was made in the same direction, but the plans of 1663 were
carried out in 1674 and the king and his minister took all the
measures necessary to establish beyond legal doubt a regular
system of government in accordance with the autocratic spirit
which characterized regal power in those days. It has been
well observed by the historian Parkman that the governor of
Canada as well as the intcndant, the next most important if
not indeed in many ways the most important functionary of
state, were to all intents and purposes in point of authority,
the same oflicials who presided over the aifairs of a province
of France. In Canada as in France governors—general had
only such powers as were expressly given them by the king
who, jealous of all authority in others, kept them rigidly in
check. In those days the king was supreme ; “ I am the state ”

10 Federal Goeemment M amada. [466

said Louis Quatorze in the arrogance of’ his power. The
feudal system of France had been long since deprived of its
dangers to the monarch and the nobles of the once proud

feudal families, who in old times had even defied their feudal
chief, were new kept within the courtly precincts to pay him

homage and obey his commands. The three estates, the nobles,

clergy and tiers étai, or the “nation,” still existed in name,

but while the first was stripped of real power and the second
exercised its usual influence on the conscience of the de-
vout the people groaned under the exactions of the king and

his conrtiers. The statesgcneral never assembled to give voice
to the complaints of the nation and provide redress. VVe find
there were Parliaments that assembled at stated periods at Paris,
Rouen and other important places but in no respect did they
resemble that great council of the English people which from

the earlier days of English history has been so often a check

on kingly assumptions. The Parliaments of France were
purely of a judicial character, and though at times they served
as a curb on the absolutisni of the king, as a rule they were
under his control, and forced under all circumstances to reg-
ister his decrees, however objectionable they might be. In

View of such facts it is easy to understand that there could be
no such things as free government or representative institu-
tions in Canada, like those enjoyed from the very commence-
ment of their history by the old English colonies which were
founded almost contemporaneously with the settlement of
Acadia and Canada by De Pout-rineourt and Champlain.

The governor had command of the militia and troops, and
was nominally superior in authority to the intendant, but in
the course of time the latter became virtually the most influ-
ential ofiicer in the colony, and even presided at the council
board. This official, who had the right to report directly to
the king on colonial affairs, had large civil, commercial and
maritime jurisdiction, and could issue ordinances on his own
responsibility which had full legal effect in the country. Asso-
ciated with the governor, and intcndant was a council, com-

467] Federal Government in Canada. 11

prising in the first instance five, and, eventually, twelve
persons chosen from the leading people of the country. The
change of name from the “Supreme Council ” to the “ Supe-
rior Council” is of itself some evidence of the determination
of the king to restrain the pretensions of all oflicial bodies
throughout the kingdom and its dependencies. This body
exercised legislative and judicial powers, and was a court of
appeal from the judicial functionaries at Quebec, Montreal
and Three Rivers, the principal towns of the three districts
into which the country was divided for the administration of
justice in accordance with the Ooutume de Pzmls. The Bishop
was a member of the council, and the history of the colony is
full of the quarrels that arose between him and the governor
on points of oflicial etiquette, or with respect to more import~
ant matters affecting the government of the country. The
Roman Catholic Church, from the very first settlement of
Canada, was fostered by express provisions in the charters of
the incorporated commercial companies. The causes that
assisted in the colonization of the French colony were trade
and religion, and the priestly missionary was as frequent a
visitor in the camp of the Indian tribes as the Ooureur dz bois,
who wandered over the Western wilderness in the days of the
French régime. When the king assumed the government, the
bishop and his clergy continued to increase their power and
wealth, and by the time of the conquest the largest landed
proprietors, and in many respects the wealthiest, were the
church and its communities. The seigniory soon gave way to
the parish of the church, as a district for local as well as
for ecclesiastical purposes. Tithes were imposed and regulated
by the government, and as the country became more populous
the church grew in strength and riches. It held always under
its control the education of the people, and was then, as now,
the dominant power in the country.

The king and the council of state in France kept a strict
supervision over the government of the colony. An appeal
lay to the king in all civil and criminal matters, but the dis-

12 Federal Go/uerwnzeat in Canada. [468

tance between Paris and Quebec, in those days of slow com-
munication, tended to keep up many abuses under which the
people suifered, and it is easy to explain how it was that an
unscrupulous intendant like Bigot was able to cheat the Cana-
dians for so many years with impunity and amass large wealth
by the most disgraceful peculation and jobbery.

We look in vain for evidence of popular freedom or material
prosperity during these times. The government was aiitocratic
and illiberal, and practically for many years in the hands of
the intendant. Public meetings were steadily repressed and
even the few that were held in those early days on occasions of
public emergency could be called only at the instance of the
authorities. No system of municipal government was estab-
lished, and the efi“orts to elect alderman for civic purposes in
Quebec were almost immediately rendered inefl’ectual by the
open or insidious hostility of the governing powers. Some
semblance of popular representation was given for a while by
the election of “syndics,” a class of officials peculiar to French
local administration, though we can trace their origin to the
Greeks. The French Canadian colonists had in all probability
brought with them among their customary rights that of choos-
ing an agent for the special purpose of defending the interests
of a community whenever necessary before the authorities,
but in accordance with the principles that lay at the basis of
the Canadian government, the people soon found themselves
incapable of exercising what might have been a useful. muni~
cipal office, and might have led to the extension of popular
privilegcs. It is not strange, then, that the habiiants of the
seigniories, as well as the residents in the towns, lived for the
most part a sluggish existence without any knowledge of, or
interest in the affairs of the colony, which were managed for
them without their consent or control, even in cases of the
most insignificant matters. Even trade was in fetters. Cana-

‘dians could only deal vfith France, in conformity with the

restrictive policy of those times when colonies were considered
simply feeders for the commerce of the parent state.

469] Federal Goeemmei/Lt in Ctmada. 13

It may be urged with truth that the French Canadian had
no knowledge of those free institutions which Englishmen
brought to this continent as their natural birthright. The
people of France were crushed beneath the heels of the king
and nobles, and the Norman or Breton was hardly a freeman
like an Englishman of Devon or Kent. But transplanted to
the free atmosphere of this continent, and given some oppor-
tunities for asserting his manhood, the bold courageous native
of Brittany or Normandy might have sooner or later awaked
from his politiml lethargy, and the conquest might have
found him possessor of some political rights and in many
respects an energetic member of the community. This was,
however, impossible in a country where the directions of the
king and his pliant ministers were always to the effect that
liberty of speech should be rigidly repressed. Even the Mar-
quis of Frontenac, when governor, was told in very emphatic
terms that he made a grievous mistake when he presumed
to advise the assembling of the Canadians on the plan of the
états génémwv of France ; a piece of presumption, indeed, when
the representative assemblies were never called together even
in the parent state.

We must now come to the Second Period in our political
history, which dates from that hour of humiliation for France
and her Canadian ofispring, the capitulation of Quebec and of
Montreal in 1759-1760. This was the commencement of
that new era during which the French Canadians were grad—
ually to win for themselves the fullest political freedom under
the auspices of England. The second period may be con-
sidered for the purposes of historical convenience, to be the
transition stage from the conquest until the granting of repre-
sentative institutions in 1791. I call it a transition stage
because it illustrates the development from the state of com-
plete political ignorance that existed at the time of the conquest
to the state of larger political freedom that the constitutional
act of 1791 gave to the people of Canada. During this
transition period it is interesting to notice the signs that the

14 Federal Gooemment in Canada. [470

French Canadian leaders gave from time to time of their
comprehension of self government, even Within a quarter of
a century from the day they emerged from the political dark-
ness of their own country under the French regime. Several
political facts require brief mention in this connection. From
1760 to 1763 when Canada was finally ceded to Great Britain
by the Treaty of Paris there was a military government as a.
necessary consequence of the unsettled condition of things,
but it does not demand any special consideration in this review.
Then King George III issued his famous proclamation of
1763,‘ and by virtue of the royal prerogative established a
system of government for Canada. The people were to have
the right to elect representatives to an assembly, but the time
was not yet ripe for so large a measure of political liberty, if
indeed it had been possible for them to do so under the in-
structions to the governor—general, which required all persons
holding oflice or elected to an assembly to take oaths against
transubstantiation and the supremacy of the Pope. This
proclamation which was very clumsily framed in the opinion
of lawyers created a great deal of dissatisfaction, not only for
the reason just given but on account of its loose reference to
the system of laws that should prevail in the conquered
country. As a matter of fact the ordinances issued by the
governor and executive council that now governed Canada,
practically went to establish both the common and the criminal
law of England to the decided inconvenience and dissatisfac-
tion of the French Canadians accustomed to the civil law of
France. But events were shaping themselves in favor of the
French Canadians or “new subjects” as they were called in
those days. The difficulty that had arisen between England
and the old thirteen colonies led her statesmen to pay more
attention to the state of Canada and to study the best methods
of strengtliening their government in the French colony, where

llssued 7th October, 1763. See text at the end of third volume of Cart~
wrighlfs Cases on the British North America Act.

471] Federal Govemment in Gzmtda. 15

the English element was still relatively insignificant though
holding practically the reins of power by means of the execu-
tive council and the public ofl‘ices._ In 1774 the parlia-

_ ment of Great Britian was for the fixst time called upon

to intervene in the affairs of Canada and passed the act
giving the first constitution to Canada, ‘generally known
in our history as the Quebec act.‘ During the same session
were passed a series of acts with the object of bringing the
colonists of‘ New England into a more humble and loyal state
of mind ; for the cargoes of tea, inopportunely despatched to
different colonial ports, had been already destroyed, and the
discontent that prevailed generally in the colonies, especially
in Massachusetts, had reached a crisis. The Quebec act was
in the direction of conciliating the French Canadians, who
naturally received it with much satisfaction. The English,
on the other hand, regarded it with great disfavor, and the
same may be said of the people of the old thirteen colonies,
Who subsequently, through their Congress, stated their objec-
tions in an appeal to the people of Great Britain, and declared
it to be “unjust, unconstitutional, and most dangerous and
destructive of American rights.” The act established a legis-
lative council nominated by the crown, and the project of an
assembly was indefinitely postponed. The French Canadians
were not yet prepared for representaiiive institutions of whose
working they had no practical knowledge, and were quite
content for the time being with a system which brought some
of their leading men into the new legislative body. All their
experience and traditions were in favor of a governing body
nominated by the king, and it required time to Show them the
advantage of the English system of popular assemblies. But
what made the act so popular in Lower Canada was the fact
that it removed the disabilities under which the French Cana-
dians, as Roman Catholics, were heretofore placed, guaranteed
them full freedom of Worship, and placed the church, with the

‘lump. Act, 14th Geo. III, cap. 83.

16 , Federal Gorvemmemt in Canada. [472
exception of the religious orders, the Jesuits and Sulpitians,‘
in complete possession of their valuable property. The old
French law was restored in all matters of controversy relating
to property and civil rights. The criminal law of England,
which was, in the opinion of the French Canadians, after an
experience of some years, preferable to their own system on
account of its greater mildness and humanity, was to prevail
throughout the country. The hostile sentiment that existed
in Canada, and the old thirteen colonies arose in a great
measure from the fact that the civil law of France was
applied to the English residents not only in the French section,
but to the large area of country extending to the Mississippi

‘ on the west, and the Ohio on the south, so as to include the terri-

tory now embraced by the five States northwest of the Ohio.

While this act continued in force various causes were at
Work in the direction of the extension of popular government.
The most important historical fact of the period was the com-
ing into British North America of some forty thousand persons,
known as United Empire Loyalists, who decided not to remain
in the old thirteen colonies when these foreswore their allegi-
ance to the king of England. Few facts of modern times
have had a greater influence on the destinies of a country than
this immigration of sturdy, resolute and intelligent men, united
by high principles and the most unselfish motives. They laid
the foundations of the provinces now known as New Bruns-
wick and Ontario, and settled a considerable portion of Nova
Sootia. From the day of their settlement on the banks of the
St. John, Niagara and St. Lawrence rivers, and in the vicinity
of Lakes Ontario and Erie, they have exercised by themselves
and their descendants a powerful influence on the institutions

‘The Sulpitians, who are a very wealthy corporate body, were left in
possession of their property, but it was not until 1839 that they received
legal recognition. The Crown took formal possession of the property of the
Jesuits in 1800 on the death of the last representative of the order in
Canada. See Lecture II, and Lzrreau, Histoire du Droit Canadian, II,
pp. 195-200.

473] Federal Government in Canada. 17
of Canada, not unlike that exercised by the descendants of the
New England pioneers throughout the American Union ; and
it is to them we owe much of that spirit and devotion to
England which has always distinguished the Canadian people
and aided to keep them, even in critical periods of their history,
within the empire.

In view of the rapidly increasing English population of
Canada and of the difliculties that were constantly arising
between the two races,-——difIiculties increased by the fact that
the two systems of law were constantly clashing and the
whole system of justice was consequently very unsatisfactorily
administc->red,——the British government considered it the
wisest policy to interfere again and form two separate pro-
vinces, in which.the two races could work out their own future,
as far as practicable, apart from each other. This was a Very
important change in its far—reaching consequences. It was
not merely another remarkable step in the political develop-
ment of Canada, but it was to have the effect not only of
educating the French Canadians more thoroughly in the
advantages of self-government but of continuing the work
which the Quebec Act practically commenced, and strength-
ening them as a distinct nationality desirous of perpetuating
their religion and institutions.

The passage of the Constitutional Act of 1791‘ is the
beginning of the Third Period in the political history of
Canada, which lasted for half a century until it was found
necessary to make another important change in the constitu-
tion of the provinces. This Act extended the political liber-
ties of the people in the two provinces of Upper Canada and
Lower Canada———now Ontario and Q,uel>ee~—organized under
the Act, since it gave them a complete legislature, composed
of a governor, a. legislative council nominated by the crown, and
an assembly elected by the people on a limited franchise, prin-
cipally the old forty shilling freehold system so long in vogue

llmp. Act, 81 Geo. II, Cap. 31.

18 Federal Government in Canada. [474

in English speaking colonies. The object was, as stated at
the time, to separate the two races as much as possible and to
give both a constitution resembling that of England as far as
the circumstances of the country would permit.

The history of the two provinces, especially of French
Canada, under the operation of the Constitutional Act of 17 91,
is full of instruction for the statesman and political student.
It illustrates the fact which all history teaches, that the political
development of a people must be always forward the moment
their liberties are e:<tended, and that the refusal of franchises
and privileges necessary to the harmonious operation of a
government is sure sooner or later to breed public discontent.

‘I do not purpose to dwell on well—known historical facts,
but there are a few considerations bearing on this review of
political development which I shall briefly mention. In the
first place the constitution of 1791, though giving many eon-
cessions and privileges to the provinces, had an inherent weak-
ness, since it professed to be an imitation of the British
system, but failed in that very essential principle which the
experience of England has proved is absolutely necessary to
harmonize the several branches of government; that is the
responsibility of the executive to parliament, or more strictly
speaking to the assembly elected by the people. The English
representatives in the province of Upper Canada soon recog—
nized the value of this all important principle of parliamentary
government according as they had experience of the practical
operation of the system actually in vogue; but it is an admitted
fact that the French Canadian leaders in the assembly never
appreciated, if indeed they ever understood, the constitutional
system of England in its full significance. Their grievances,
as fully enumerated in the famous resolutions of 1834, were
numerous, but their principal remedy was always an elective
legislative council, for reasons quite intelligible to the student
of those times. The conflict that existed during the last
thirty years of this period was really a confiict between the
two races in Lower Canada, where the French and elective

475] Federal Govcmment 7?» Canada. 19

element predominated in the Assembly, and the English
and oflicial or ruling element in the legislative council. The
executive government and legislative council, both nominated
by the crown, were virtually the same body in those days.
The ruling spirits in the one were the ruling spirits in the
other. The English speaking people were those rulers, who
obstinately contested all the questions raised from time to time
by the popular or French party in the assembly. In this
contest of race, religion and politics the passions of men
became bitterly inflamed and an impartial historian must dep-
recate the mistakes and faults that were committed on both
sides. But looking at the record from a purely constitutional
point, it must be admitted that there was great force in the‘
arguments presented by the assembly against many anomalies
and abuses that existed under the system of government.
They were right in contending for having the initiation and
control of the public expenditures in accordance with the prin-
ciples of parliamentary government. The granting of supply
is essentially the privilege of a people’s house, though no
measure can become law without the consent of the upper
house, which may reject, but cannot amend a revenue or
money bill. Another grievance was the sitting of judges in
both houses. VVhile the British government soon yielded
to the remonstranoes of the assembly, and instructed the
governor to consent to the passage of an act to prevent the
continuance of this public wrong-~for it cannot be considered
otherwise—-of judges having a seat in the assembly, they were
permitted to remain both in the executive and legislative
councils for nearly the duration of the constitutional act. It
was not until the assembly endeavored to impeach the judges
year after year, and deluged the imperial parliament with
addresses on the subject, that this grievous defect disappeared
from the political system.

In Upper Canada the political dilficulties never assumed
so formidable an aspect as in the French Canadian section.
N 0 difference of race could arise in the Westerii province, and

20 Federal Govemmmtt in Canada. [476
the question of supplies gradually arranged itself more satis-
factorily than in Lower Canada, but in course of time there arose
a contest between ofiicialism and liberalism. An ofiicial class
held within its control practically the government of the pro-
vince. This class became known in the parlance of those
days as the “ family compact,” not quite an accurate designa—
tion, since the ruling class had hardly any family connection,
but there was just enough ground for the term to tickle the
taste of the people for an epigrammatic phrase. The clergy
reserves question grew out of the grant to the Protestant
Church in Canada of large tracts of land by the constitutional
act, and was long a burning dominant question in the contest
‘of parties. The reformers, as the popular party called them—
selves, found in this question abundant material for exciting
the jealousies of all the Protestant sects who wished to see the
Church of England and Church of Scotland deprived of the
advantages which they alone derived from this valuable source
of revenue.

The history of this period, however full of political mis-
takes, is interesting since it shows how the people, including
the French Canadians, were learning the principles on which
parliamentary government must rest. It was history repeat-
ing itself, the contest of a popular assembly against preroga-
tive, represented in this case by the governor and executive
which owed no responsibility to the peop1e’s house. These
times of political conflict have happily passed and the domi-
nant body now is the people’s house, where the council only
holds power by the will of the majority. If there is cause for
complaint, or danger in the present -system, it is in the too
great power assumed by the executive or ministry and the
tendency to yield too much to its assumptions on the part of
the political majority.

I have endeavored, as briefly as possible, to show the
principal causes of irritation that existed in Canada during the
third period of our history. All these causes were intensified
by the demagoguism that is sure to prevail more or less in

477] Federal Gowmment in Canada. 21
times of popular agitation, but the great peril all the while in
Lower Canada arose from the hostility of the two races in
the political arena as well as in all their social and public
relations. The British government labored to meet the
-wishes of the discontented people in a fair and conciliatory
spirit but they were too often ill advised or in a quandary from
the eonfliot of opinion. No doubt the governors on whom
they naturally depended for advice were at times too much
influenced by their advisers, who were always fighting with
the people’s representatives and at last in the very nature of
things made advocates of the unpopular party. Too gener-
ally they were military men, eholcrio, impatient of control,
and better acquainted with the rules of the camp than the
rules of constitutional government and sadly wanting in the
tact and wisdom that should guide a ruler of a colony.
Exception must be made of Lord Dorehester Who, like
Wellington and even Marlborough, was a statesman who
would have been found invaluable had fate given him to
Canada at a later period of her history when the political
discontent was at last fanned into an ill-advised. rebellion in
the two provinces, a rebellion which was promptly suppressed
by the prompt measures immediately taken by the authorities.

In Lower Canada the constitution was suspended and the
government of the country from 1838-1841 was administered
by the governor and a special council. The most important
fact of this time was the mission of Lord Durham, a distin-
guished Euglish statesman, to inquire into the state of the
country as governor-general and high commissioner. Few
state papers in English history have had greater influence
on the practkal development of the colonies than the elaborate
report which was the result of his review of the situation.
It was a remarkably fair summary of the causes of discontent
and suggested remedies which recommend themselves to us in
these days as replete with political wisdom. The final issue
of the inquiries made into the condition of the country was
the intervention of parliament once more in the affairs of

22 Federal Government in Oomadct. [478

Canada and the passage of another Act providing for a very
important constitutional change.

The proclamation of the Act of1841 1 was the inauguration
of’ the Fourth Period of our political development which
lasted until 1867. The discontent that existed in Canada for
so many years had the effect, not of diminishing but of en-
larging the political privileges of the Canadian people. The
Imperial government proved by this measure that they were
desirous of meeting the wishes of the people for a larger grant
of selflgovernmcnt. The French Canadians, however looked
upon the Act with much disfavor and suspicion. The report
of Lord Durham and the union itself indicated that there was
a feeling in England that the separation of the two races in
1791 had been a political mistake, since it prevented anything
like a national amalgamation; and it was now proposed to
make an eEFort in the opposite direction and diminish the
importance of the French Canadian section with its distinct
language and institutions. The fact that the French language
XVQS ‘no longer placed on the same footing as English, in offi-
cial documents and parliamentary proceedings, together with the
fact that Upper Canada had the same representation as Lower
Canada in the assembly, despite the larger population of the
latter section, was considered an insult and an injustice to the
French Canadians, against which they did not fail to rcinon—
strate for years.

But in my studies and personal experience of the times in
which I live, I have been often struck by the fact that the logic
of events is much more forcible than the logic of statesmen.
So far from the act of 1841, which united the Canadas,
acting unfavorably to the French Canadian people it gave
them eventually a predominance in the councils of the country
and prepared the way for the larger constitution of 1867 which
has handed over to them the control of their own province, and
afforded additional guarantees for the preservation of their lan-

‘Imp. Act 3 and 4 Vic, Cap. 35.

479] Federal Government in Canada. I 23

guage and institutions. French soon became again the oflicial

language by an amendment of the union act, and the clause

providing for equality of representation proved a security
when the upper province increased more largely in population

than the French Canadian section. The act was framed on

the principle of giving full expansion to the capacity of the
Canadians for local government, and was accompanied by
instructions to the govei-nor—gcneral, Mr. Poulett Thomson,

afterwards Lord Sydenham, which laid the foundation of
responsible government. It took several years to give full efibct
to this leading principle of parliamentary government, chiefly

on account of the obstinacy of Lord Metcalfe during his term
of office ; but the legislature and the executive asserted them-
selves cleterminately, and not long after the arrival in 1847 of
Lord Elgin, one of the ablest governors-general Canada has
ever had, the people enjoyed in its completeness that system of
the responsibility of the cabinet to parliament without which

our constitution would be unworkable. More than that, all
the privileges for which the people had been contending din-~
ing a quarter of a century and more, were conceded in accord—
anoe with the liberal policy now laid down in England for the
administration of colonial affairs. The particular measure
which the French Canadians had pressed for so many years on
the British government, an elective legislative council, was
conceded. When a few years had passed the Canadian Leg-
islature was given full control of taxation, supply and
expenditure in accordance with English constitutional princi—
ples. The clergy reserves difiiculty was settled and the lands
sold for public or municipal purposes, the interests of existing
rectors and incumbents being guarded. The great land ques-
tion of Canada, the scigniorial tenure of Lower Canada, was
disposed of by buying oil’ the claims of the seignioi-s. \Vith

the abolition of a system, which had its advantages in. the early
French times, since it forced both seignior and habitant to
settle and clear their lands within a certain period, a relic of
feudal days, foreign to the free spirit of American civilization,

24 Federal Government in Canada. [480

disappeared from our civil system and the people of lower
Canada were freed from exactions which had become not so
much onerous as vexatious, and were placed on the free foot-
ing of settlers in all the English communities of America.
Municipal institutions of a liberal nature especially in the
province of Ontario, were established, and the people of the
provinces enabled to have that control of their local affairs in
the counties, townships, cities and parishes which is necessary
to carry out public works indispensable to the comfort, health
and convenience of the community, and to supplcnsent the
efforts made by the legislature, from time to time, to provide
for the general education of the country ; efforts especially suc-
cessful in the province of’ Upper Canada where the universi~
tics, colleges and public schools are so many admirable
illustrations of energy and public spirit. The civil service,
which necessarily plays so important a part in the administra-
tion of government, was placed on a permanent basis and has
ever since afi°ordcd a creditable contrast with the loose system
so long prevalent in the United States, where the doctrine,
“ To the victors belong the spoils,” ‘—which was established in
the time of President Jackson, though the phrase originated
with a New York politician, W. L. Marcy-was found neces—
sary and very convenient to satisfy the great body of office-
seekeis who naturally grew up in a country where elections
are so frequent and professional politicians so numerous. In
addition to those progressive measures, we may mention the
acts securing the independence of parliament, the codification
of the French civil law, the consolidation of the public statutes,
the improvement of the election laws so as to ensure greater
purity at elections, as among the legislation of a period replete
with usefulness and admirably illustrating the practical char-
acter of Canadian public men. »

The union of 1841 did its work and the political conditions
of Canada again demanded another radical change commen-

‘ Summer’s Life of Andrew Jackson, in American Statesmen series, p. 162.

481] Federal Government in Canada. 25

surate with the material and political development of the
country, and capable of removing the ditficulties that had
arisen in the operation of the Act of 1841. The claims of
Upper Canada to larger representation, equal to its increased
population since 1840, owing to the great immigration which
naturally sought; a rich and fertile province, were steadily
resisted by the French Canadians as an unwarrantable inter-
ference with the security guaranteed to them under the Act.
This resistance gave rise to great irritation in Upper Canada
Where a powerful party made representation by population
their platform, and government at last became practically
impossible on account of the close political divisions for years
in the assembly. The time had come for the accomplishment
of a great change f’01’esha(l0wcd by Lord Durham, Chief
Justice Sewell, Mr. I-Iowe, Sir Alexander Gait, and other
public men of Canada: the union of the provinces of British
North America. The leaders of the different governments in
Canada and the maritime provinces of Nova Scotia, New
Brunswick, and Prince Edward Island, to whose political
history I shall refer in a later lecture, after negotiations into
which I need not enter here, combined with the leaders of the
opposition with the object of carrying out this great measure.
A convention of thirty—three representative men was held in
the autumn of 1864 in the historic city of Quebec, and after
a deliberation of several weeks the result was the unanimous
adoption of a set of seVeuty—t\vo resolutions embodying the
terms and conditions on which the provinces through their
delegates agreed to a federal union in many respects similar
in its general features to that of the United States federation,
and in accordance with the principles of the English constitu-
tion. Thcse resolutions had to be laid before the various
legislatures and adopted in the shape of addresses to the queen
whose sanction was necessary to embody the wishes of the
provinces in an imperial statute.

It is an important fact that the consent of the legislature
was deemed suflicient by the governments of all the provinces


26 Federal Government in Canada. [482

except one, though the question had never been an issue at the
polls before the election of the legislative bodies which assumed
the complete responsibility of this radical change in the con-
stitutional position and relations of the countries affected. In
New Brunswick the legislature was dissolved twice on the
issue, and the opposition in the Nova Seotia assembly retarded
the accomplishnicnt of the measure, but finally both these
provinces came into accord with the Canadian parliament,
where only a relatively small minority urged objections to the
proposed union. In the early part of 1867 the imperial. par-
liament, without a division, passed the statute known as the
“British North America Act, 1867,” which united in the
first instance the province of Canada, now divided into
Ontario and Quebec, with N ova Seotia and New Brunswick
and made provisions for the coming in of the other provinces
of Prince Edward Island, Newfoundland, British Columbia,
and the admission of Rupert’s Land and the great North-

Between 1867 and 1873 the provinces just named, with the
exception of N cwfoundland, which has persistently remained
out of the federation, became parts of the Dominion and the
vast Nortlmvest Territory was at last acquired on terms emi-
nently satisfaetory to Canada and a new province of great
promise formed out of that immense region, with a complete
system of parliamentary government.

I have endeavored in the preceding pages to review within
as brief 2. space as possible the salient features in the political
development of Canada, and it is my intention in the lee-
tures that follow to direct attention to the frainowork and
operation of the constitutional system. I shall not treat the
questions that arise from a more technical or legal view, but
from the standpoint of one who has many opportunities of
observing its practical working. I shall refer to the various
important changes that have occurred in the legislation of
the country affecting the various branches of government,
and try to point out what appear, according to the expo-

—….u…..«…_ .

488] Federal G’owcr*/Lmeni in Canada. 27

rience the country has gained within a quarter of a century,
to he defects in the system requiring amendment sooner or
later in order to give it more elasticity, effloieney and per»

So far as I have gone my readers will see even from this
very imperfect snniinary of the political history of Czmzida for
two hundred and sixty years since the foundation of Quebec,
and one hundred and four years since the treaty of Paris, that
there has been 21 steady development ever since England, the
birth-place of free institutions, took the place of France, so
long the home of an zbsolute, irresponsible eutooracy. It tool:
It century to bring about the changes that placed Canada in
the sen1i—indepen(lent position she now occupies, but as we
review the pzistwe can see there was ever an undercurrent
steadily moving in the direction of political freedom. Poli«
tioians might wrangle and commit the most grievous mistalzes;
governments in England and Canada might misunderstand
public sentiment in the colony, and endeavor to stem the
stream of political progress, but the movement was ever
onward and the destiny that watches over peoples as well as
over individuals was shaping our political ends, and, happily,
for our good.

The results of these many years of political agitation
through which Canada has passed have been eminently favor-
able to her interests as :1 political community. No country in
the world enjoys :1 larger measure of political liberty or greater
opportunities for happiness and prosperity under the liberal
system of government which has been won by the sagaeity and
patience of her people.

Soniewhere I have seen it said that the tree of liberty, like
the oak or the maple, cannot spring suddenly into existence
and attain full maturity in a day, but grows slowly and must
bend at times beneath the storms of faction. But once it has
taken deep root in a congenial soil, passion beats in vain
against its trunk and the people find safety and shelter beneath
its branches. The tree of liberty was long ago brought into

28 Federal G‘mJer71me’ntz’n Canada. [484

this country from the parent state, and has now developed into
goozily proportions amid the genial influences that have so long
surrounded it. ‘

Of Canada we may now truly say that it is above all others
“’9. land of settled goVe1’1m10nt” resting on the vital principles
of political fréedozn and religious toleration, and all those
maxims which , experience has shown the world, are best calcu~
lated to make communities happy and prosperous.



The Dominion‘ of Canada now consists of seven provinces
regularly organized and of an immense area of undeveloped
and sparsely settled territory extending from Ontario to the
base of the Rocky Mountains, and temporarily divided into
four large districts, for the purposes of government. The area
of the whole Dominion is only thirty thousand English square
miles less than that of the United States,” including the vast

‘ “The history of the circumstances under which the name of the ‘Domin-
ion’ came to be given to the united provinces shows the desire of the Cana-
dians to give to the confederation, at the very outset, a monurehical like-
ness in contradistinction to the republican character of the American federal
union. We have it on the best authority that in 1866-67 the question arose
during a conference between the Canadian delegates and the Imperial nu-
thorlties what name should be given to the confederation of the provinces,
and it was iirst’propose but it is said that the Earl of Carnarvon, then secretary of state for the coIo~
nies, thought such 21 designation inadvisable, chiefly on the ground that it
would be probably objectionable to the government of the United States,
which had so recently expressed its rlimpprobation of the attempt of
the Emperor Napoleon to establish an imperial European dynasty in
Mexico. . . . . The Canadian delegates made due allowance for the deli-
cacy of the sentiments of the minister and agreed, as a compromise, to the
less ambitious title, Dominion of Cnnnda,——a designation recalling that
‘Old Dominion,’ named by Raleigh in honor of the virgin Queen.” See
article by author in tlxe’:S‘coi!£sh Rc’::x’ew for April, 1885.

‘The United States has an area of 8,501,404 square miles, inclusive of
Alaska (577,390); Canada, 3,470,392, or about the some area as Brazil;
Europe, 3,800,000 square miles.


30 Fetlierali Government in Oouzada. [486

territory of Alaska. Its total population is about five millions
of souls, of whom probably two millions and a quarter live in
Ontario, nearly a million and a half in Quebec, and the re~
maincler in the smaller provinces and in the territories. Out
of the North-west has already been carved the province of
Manitoba wliich has made remarkable progress, while astream
of population is now steadily flowing over the rich prairies
and grazing lands of the territories. The Maritime Provinces
are inhabited by an English people, with the exception of cer-
tain districts, especially in New Brunswick, where there is a
small Acadian population still speaking the French language.
Quebec has a French population of at least a million and a
quarter of souls, professing the Roman Catholic religion and
clinging with remarliable tenacity to their language and insti~
tutions, and commencing to swarm over” certain portions
of the \Vcstern Province. The population of Ontario is
mainly English and Protestant ; and the same may be said of
the other provinces. In the territories and British Columbia
there is a large Indian population, whose interests are care-
fully guarded by the governxnenl; of Canada. The industrial
pursuits of Nova Scotia and New Brunswick, both washed by
the Atlantic ocean, are principally maritime, mining and com-
mercial. Prince Edward Island is chiefly agricultural. The
St-. Lawrence is the natural artery of communication, by the
aid of a magnificent system of canals, between the ocean and
the provinces of Quebec and Ontario, and as far as the city of
Port Arthur at the head of Lake Superior. Railways reach
from Halifax to the growing city of Vancouver on the Pacific
coast, and afford great facilities of commercial. intercourse
between the new territories and the markets of the old prov-
inces and the rest of the world. The wealth of Ontario arises
from her agricultural products, aided by a large system of
Inaniifactories. Quebec has varied interests, fltrming, manu-
facturing and commercial. The territories promise to be the
principal granary of the continent, while British Columbia
has large undeveloped wealth in her mountains and in the

487] Federal Gouernnzeflt in Canada. 31

seas that wash her coast. To unite and give a community of
interest to all these territorial divisions of the Dominion—the
Maritime Provinces, Quebec, Ontario, the North—west and
British Colun1bia—-and harmonize the ethnological and other
differences that now exist within the limits ofthe confederation,
is the very serious responsibility thrown upon the central and
the local governments which derive their powers from the Brit—
ish North America Act of 1867. How far the system which
this act provides is likely to promote these objects, I shall
attempt to show in the course of this and succeeding: lectures.

When the terms of the Union came to be arranged between
the provinces in 1864, their conflicting interests had to
be carefully considered and a system adopted which would
always enable the Dominion to expand its limits and bring in
new sections until it should embrace the northern half of the
continent, which, as we have just shown, now constitutes the
Dominion. It was soon found, after due deliberation, that
the most feasible plan was a confederation resting on those
principles which experience of the working of the federation of
the United States showed was likely to give guarantees of
elasticity and permanency. The maritime provinces had been
in the enjoyment of an excellent system of laws and represen-
fative institutions for many years, and were not willing to
yield their local autonomy in its entirety. The people of the
province of Quebec, after experience of a union that lasted
from 1841 to 1867, saw decidedly great advantages to them-
selves and their institutions in havinga provincial government
under their own control. The people of Ontario recognized
equal advantages in having a measure of local government,
apart from French Canadian influences and interference. The
consequence was the adoption of the federal system, which
now, after t\venty—six years’ experience, we can truly say
appears on the whole well devised and equal to the local and
national requirements of the people.

We owe our constitution to the action of the Parliament of
Great Britain, before whom, as the supreme authority of the

32 Federal Government in Canada. [488

Empire, the provinces of Canada had to come and express
their desire to be federally united. In the addresses to the
Queen embodying the resolutions of the Quebec conference of
1864 the legislatures of the provinces respectively set forth
that in a federation of the British North American provinces,
“the system of government best adapted under existing cir~
eumstanees to protect the diversified interests of the several
provinces, and secure harmony and permanency in the working
of the Union would be a general government charged with
matters of common interest to the whole country, and local
governments for each of the Canadas, and for the provinces of
Nova Scotia, New Brunswick and Prince Edward Island,
charged with the control of local matters in their respective

In the third paragraph the resolutions declare that “in
framing a constitution for the general government, the confer—
ence, with a View to the perpetuation of our connection with
the mother country, and the promotion of the best interests of’
the people of these provinces, desire to follow the model of the
British constitution so far as our circumstances permit.” In
the third paragraph it is set forth: “ The executive authority
or government shall be vested in the sovereign of the United
Kingdom of Great Britain and Ireland, and be administered
according to the wcll—understood principles of the British con~
stitution, by a sovereign personally, or by the representative
of the sovereign duly authorized.” ‘

In those three paragraphs we see tersely expressed the lead-
ing principles on which our system of government rests: a
federation with a central government exercising general powers
over all the members of the union, and a number of local gov-
ernments having the control and management of certain mat-

‘ The preamble of the B. N. A. Act of 1867 sets forth that “ 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 it constitution similar in prin-
ciple to that of the United Kingdom.”

489] Federal Government in Ctmada. 83

ters naturally and conveniently falling within their defined
jurisdiction, while each government is administered in accord-
ance with the British system of parliamentary institutions.
These are the fundamental principles which were enacted into
law by the British North America Act of 1867.

Before I proceed to refer to the general features of the fed-
eral system I may here appropriately observe that the practical
operation of‘ the government of Canada affordsa forcible illus-
tration of a government carried on not onlyin accordance with
the legal provisions of a fundamental law, but also in con~
formity with what has been well described by eminent writers
as conventions or understandings which do not come within
the technical meaning of laws since they cannot be enforced by
the courts. It was Professor Freeman ‘ who first pointed out
this interesting and important. distinction, but Professor Dicey
has elaborated it in a recent work, in which he very clearly
shows that “constitutional law ” as we understand it in Eng-
land and in this country, consists of two elements : “The one
element, which I have called the ‘ law of the constitution’ isa
body of undoubted law ; the other element which I have called
the ‘conventions of the constitution,’ consists of niaxims or
practices which, though they regulate the ordinary conduct of
the Cro\vn‘and of Ministers and of others under the constitu-
tion, arc not in strictness law at all.” 2 In Canada this
distinction is particularly noteworthy. ‘We have first of all
the British North America Act’ which lays down the legal
rules for the division of powers between the respective federal
and provincial authorities, and for the government of the fed-
eration generally. But it is a feature of this government that,
apart from the written law, there are practices which can only
be found in the usages and conventions that have originated
in the general operation of the British c0nsti’tutior.\~—that mass

1 Frceman’s Growth of the English Constitution, pp. 114, 115.
’Diccy’s Law of the Constitution, p. 25.
‘Imp. Act, 30«31 Vict. o. 3.

34 Federal Government in Canada. [490

of chzuters, statutes, practices and conventions, which must be
sought for in 21 great number of authorities. For example, if
we wishrin Canada to see whether a special power is given to
the dominion or to the provincial governments we must look
to the written constitution-—to the ninety-first and ninety-sec-
ond sections, to which I shall refer later on—but if we would
Imderstand the nature of’ the constitutional relations between
the governougencral and his advisers we must study the con-
ventions and usages of parliamentary or responsible govern-
ment as it is understood in England and Canada. The courts
accordingly will decide whether the parliament or the legisla-
tures have a power conferred upon them by the constitutional
law whenever a case is brought before them by due legal pro-
cess ; but should they be asked to adjudicate on the legality of
a refusal by a government to retire from oifice on an adverse
vote of the people’s house, they could at once say that it was a
matter which was not within their legal functions, but a
political question to be settled in conformity with political con~
vcntions with which they had nothing whatever to do. Or if
Parliament should continue to sit beyond the five years’ term,
to which it is restricted by law, and then pass certain acts, the
constitutionality of such legislation could he questioned, and
the courts could declare it null and void. Or again, the con-
stitutional uct requires that every vote of money must be first
recommended formally by the governor—gcneral, and if it

should appear that parliament had passed an act without that .

legal formality, the courts could be called upon to consider the
legal effect of this important omission. On the other hand, it
is 8. well understood maxim that no private member can ini-
tiate a measure imposing a tax on the people, but it should
come from 21 minister of the Crown——-21. rule rigidly observed
in p2u’liamcnt——but this is not a matter of legal enactment
which the courts can take cognizance of though it is a conven-
tion of the unwritten constitution which is based on well-

. understood principles of ministerial responsibility. I might

pursue this subject at greater length, but I think I have said

491] Federal Government in Canada. 35

enough to show you how interesting is the study of our con-
stitution and what a wide field of reflection it opens up to the
student. ‘We have not only awritten constitution to be inter-
preted whenever necessary by the courts, but a vast storehouse
of English precedents and authoritative maxims to guide us——
in other words, an unwritten law which has as much force
practically in the operation of our political system as any legal
enactment to be found on the statute book.

The British North America Act gave legal efifect to the
wishes of the people of Canada, as expressed in the addresses
of their legislatures, and is consequently the fundamental law,
or constitution of the Dominion, only to be amended in its
material and vital provisions by the same authority that
enacted it} Power is only given in the act itself to the
Canadian legislature for the amendment or alteration of cer~
tuin provisions which are of a merely temporary character, or
affect the machinery with which the parliament or legislatures
have to operate-—snch as the readjustment of representation,
the elections and trial of controvcrted elections, the constitution
of executive authority in Nova Seotia and New Brunswick,
and other matters which do not really affect the fundamental
principles of the constitution. All those provisions which con-
stitute the executive authority of the Dominion, regulate the
terms of union, and define the limits of the jurisdiction of the
several governments, are unalterable except by the supreme
legislature of the empire‘

“To have now to consider, in the fiist place, the position
that the Dominion of Canada occupies in the Empire, and
then the relations its government occupies towards the govern-
ments of the provinces, with such remarks on the powers and

‘The act of 1867 has been amended by two acts, Imp. Stat. 38—39 Vict.,
e. 38, to remove certain doubts with respect to the power of the Canadian
parliament under section 18; and 34 and 35 Vict., c. 28, to remove doubts
as to the powers of the Canadian parliament, to establish provinces in the

36 Federal Gmjemment in Canada. [492

functions and practical operation of the Constitution as are
necessary to make the system intelligible.

The Queen is the head of the executive authority and gov-
ernment of‘ Canada} She is as much the sovereign of Canada
as of England or Scotland, and her supremacy can be alone
aelmowledged in all executive or legislative acts of this
dependency. As she is unable to be present in person in
Canada, she is represented bya governor—gene1’al appointed by
Her Majesty in council. In the following chapter I shall
refer to his duties in Canada, and it is therefore pertinent here
to make only a few necessary references to his imperial position.

This high fuuctionary, generally chosen from public men of
high standing in England, has dual responsibilities, for he is
at once the governor-in~chief’ of a great dependency, who acts
under the advice of a ministry responsible to parliament, and
at the same time the guardian of imperial interests. He is
bound by the terms of his commission, and can only exercise
such authority as is expressly or implieclly entrusted to him?
He must report regularly on all those imperial and other mat-
ters on which the secretary of state for the colonies should be
informed. For instance, in the negotiations for the recent
fishery treaty he was the avenue for all communications be-
tween the Canadian and imperial governments. Canada being
a colony, and not a sovereign state, cannot directly negotiate
treaties with a foreign power, but must act through the inter-
mediary of the imperial authorities, with whom the govcrnor—
general, as an imperial officer, must communicate on the part
of our government not only its minutes of council, but his
own opinions as well, on the question under consideration. In
case of bills reserved3 for the consideration of the imperial

‘B. N. A. Act, sec. 9. “ The executive government and authority of and
over Canada is hereby declared to continue and be vested in the Queen.”

’Musgrove 7). I’u1izlo,5./lpp. C113,, 102.

“A bill affecting the fishery dispute between Canada and the United
States was formally reserved in 1886.

493] Federal Goverm/wnt in Canada. 37

government he forwards them to the secretary of state with
his reasons for reserving them. -The British North America
act provides indecé that copies of all acts of the Canadian
parliament should be transmitted to “the secretary of state
for the colonies, that they may be duly considered and disal-
lowed within two years‘ in case they are found to couflict with
imperial interests and are beyond the legitimate powers of
Canada as a dependency, still in certain essential respects
under the control of the imperial state. The commission and
instructions, which the governor—general receives from the
Quccn’s government, formerly contained a list of hills which
should be fornially reserved, divorce bills among other meas-
ures‘; but since the passage of the British North America Act,
and the very liberal measure of self-government now conceded
to Canada, these instructions have been materially moriificcl,

1 B. N. A. Act, 1867, see. 55. Where a. bill passed by the houses of the par-
liament is presented to the governor-general for the Q,ueen’s assent, he shall
declare, according to his discretion, but subject to the provisions of this act
mid to her majesLy‘s instructions, either that he ussents thereto in the
Queerfs name, or that he withholds the Quecn’s assent, or that he reserves
the bill for the signification of the Quecn’s pleasure.

56. Where the governor-general assents to :1 bill in the Queen’s name, he
shall by the iirst convenient opportunity send am authentic copy of the net
to one of her majesty’s principal secretaries of state, and if the Queen in
council, within two years after receipt thereof by the secretary of state,
thinks lit to disallow the act, such disallowunce (with a certificate of the
secretary of state of the day on which the act was received by him) being
signified by the governobgeneral, hy speech or message to each of the
houses of the parliament or by proclamation, shall annul the act from and
after the day of such signification.

57. A bill reserved for the signification of the Q,ueen’s pleasure shall not
have any force unless and until within two years from the day on which it
was presented to the governor-general for the Q,ucen’s assent, the governor-
general signifies, by speech or message to each of the houses of the parlia-
ment or by proclamation, that it has received the assent of the Queen in

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 oflicer to be kept among the records of Canada.

38 Federal Government in Canada. [494

and it is only in very exceptional instances that bills are ex-
pressly reserved. The general power possessed by the impe-
rial government of disallowing any measure, within two years
from its receipt, is considered as a suiiicient check, as a rule,
upon colonial legislation. The cases where a bill is disallowed
are now exceedingly limited. Only when the obligations of
the Empire to a foreign. power are affected, or an imperial
statute is infringed in matters on which the Canadian parlia-
ment has not full jurisdiction, is the supreme authority of
England likely to be exercised.

The imperial parliament has practically given the largest
possible rights to the Dominion government to legislate on
all matters of a Dominion character and importance which can
be exercised by a colonial dependency ; and the position Canada
consequently occupies is that of a semi-independent power.
‘Within the limits of its constitutional jurisdiction, and subject
to the exercise of disallowance under certain conditions, the
Dominion parliament is in no sense a mere delegate or agent
of the imperial parliament, but enjoys an authority as plenary
and ample as that great sovereign body in the plentitude of its
power possesses.‘ This assertion of the legislative authority
of’ the Dominion legislature is quite reconcilable with the
supremacy of the imperial parliament in all matters in which it
should intervene in the interest of the empire. For that par-
liament did not part with any of its rights as the supreme
authority of‘ the empire, when it gave the Dominion govern-
ment “exclusive authority ” to legislate on certain classes of
subjects enumerated in the act of union, and to which we shall
later on refer at length. This point has been clearly explained
by Mr. Justice Gray of the supreme court of British Columbia,
whose opinion as an eminent judicial authority is strengthened
by the fact that he was one of the mexnbezs of the Quebec con-
vention of 1864. In deciding against the constitutionality of

1 See Regina. vs. Burah, 3 App. Cas., 889; Hodge vs. the Queen, 9 1b., 117.

495] Federal G’o21er’/zme’nt in Canada. 39

the Chinese tax bill, passed by the legislature of his province,
he laid down that “the British North America Act (1867)
was framed, not as altering or defining the changed or relative
positions of the provinces towards the imperial government,
but solely as between themselves.” Proceeding he said that
the imperial parliament “ as the paramount or sovereign au«

thority could not be restrained from future legislation. The‘

British North America Act was intended to make legal an
agreement which the provinces decided to enter into as between
themselves, but which, not being sovereign states, they had no
power to make. It was not intended as a declaration that the
imperial government renounced any part of its authority.” ‘

‘Judgment of Mr. Justice Gray on the Chinese tax bill, Sept. 23d, 1878.

An imperial statute passed in 1865 (28 and 29 Vict., e. 63) expressly
declares that any colonial law “ in any respect repugnant to the provisions
of any act of parliament extending to the colony to which such law may
relate,” shell to the extent of such repugnzmcy be “absolutely void and in~
operative.” And in construing an act of parliament, “it shall he said to
extend to any colony, when it is made applicable to such colony by the
express words or necessary intendnnem,” of the same. Since the passage of
this not Canada. has received a larger measure of selflgovernnient in the
provisions of the B. N. A. not, which confers powers on the Dominion and
the provincial authorities. No one can doubt that it is competent, as Mr.
Justice Gray has intimated, for parliament to pass any law it pleases with
respect to any subject, within the powers conferred on the Dominion or
provinces: and any enactment repugnant to that imperial statute would be
declared null and void by the courts, should the question come before them.
But the point has been raised, whether it is in the power of the Canadian
parliament or legislatures to pass an act repealing an imperial statute
passed previous to the act of 1867, and dealing with .1 subject within the
powers granted to the Canadian authorities. It must be here mentioned
that the imperial government refused its assent to the Canadian copyright
act of 1872, because it was repugnant, in the opinion of the law officers of
the Crown, to the provisions of an imperial statute of 1842 extending to
the colony (Imp. Stut., 5 and 6 Viet., c. 45; Can. Sess. P., 1875, No. 28).
On the other hand, in the debate on the constitutionality of the Quebec
Jesuits’ bill mentioned later on, it was contended by the minister of justice
that a. provincial legislature “legislnting upon subjects which are given it
by the B. N. A. not, has the power to repeal an imperial statute, prior to
the B. N. A. act, affecting those subjects.” In support of this position he

40 Federal Gooemmemf in Canada. [e96

But, as I have already shown, this supremo authority of

– the imperial government will be exercised only in cases where

interference is necessary in the interests of the Empire, and in
the discharge of its obligations towards foreign powers. In
the case of all matters of Dominion or Canadian concern,
within the rights and privileges extended to Canadians by the
British North America Act, and in accord with the general
policy now pursued towards all colonies exercising a ihll sys-
tem of local selflgoverutnent, the imperial authorities can con-
stitutionally claim no authority whatever. That is, they can
interfere, to quote a distinguished Canadian statesman, “only
in instances in which, owing to the existence of substantial
imperial, as distinguished from Canadian, interests it is con-

refcrred to three decisions of the judicial committee of the privy council.
One of these, in Harris vs. Davies (10 App. C2xs., p. 279), held that the leg-
islature of New South Wales had power to repeal cstzxtute of James 1′.
with respect to costs in case of a verdict, for slander. The second case was
Powell vs. Apollo Candle Co. (10 App. 0:19., p. 282). in which the princi«
plos laid down in Regina vs. Buruh (3 App. Cas., 889) and in Hodge vs. the
Queen (9 App. 0215., p. 117) were affirmed. The third and most important
case as respects Canada was the Queen and Riel (10 App. Cas., p, 675),

in which it was decided that the,Canudian parliament had power to paw _

legislation changing, or repealing (if necessary) certain statutes passed for
the regulation of the trial of offences in Rupert’s Land, before it became
2; part of the Canadian domain (see Sir J. Thompsoifs speech, Can. Hansard,
March 27, 1889). But several high authorities do not appear to justify the
contention of the minister of justice. See Hearn’s Government of England,
app. IL; “The Colonies and the Mother Count1‘y;” Tcdd’s Government
in the Colonies, pp. 188-192, etc.; Dicey’s Law of the Constitution, pp. 95,
et seq. The question is too important to he treated hastily, especially as
it will come up soon in connection with the copyright act of 1889, in which
the some conflict as in 1875 arises. No doubt the fundamental principle
that rests at the basis of our constitutional system is to give Canada as full
power over all matters affecting her interests as is compatible with imperial
obligations. The parliament and legislatures must necessarily repeal, and
have time and again repealed, imperial enactments, especially those not
suitable to the circumstances of the country. See debate of April 20, 1889,
Canadian Commons, on the new copyright bill, which by sec. 7 can only
come into force by a proclamation of the governor in council.

497] _Federal Government in Canada. 41

sidered that full freedoni of action is not vested in the Cana-
dian people.” 1

The complete freedom of action now enjoyed by Canada in
matters aiiecting the commercial interests of’ the empire, can be
understood by reference to the fiscal system new in operation
in Canada. This system, generally known as the “National
Policy,” since its adoption in 1879, imposes a protective tariff”,

which is in direct antagonism with the free trade policy of the .

parent state, and is chiefly intended to assist Canadian manu-
factories against British and foreign competition. This policy,
at the outset, was naturally received with much disfavor in
England, but when an appeal was directly made in the impe-
rial house of commons to disallow it, the secretary of state for
the colonies, on the part of the government, presented, as a
reason for non-interference, that the measure in question was
not in excess of the rights of legislation guaranteed by the
British North America Act, under which (subject only to
treaty obligations), the fiscal policy of Canada rests with the
Dominion parliament. He further stated that, however much
the government might regret the adoption of a protective sys-
tem, they did not feel justified in opposing the wishes of the
Canadian people in this matter.” .

The queen’s privy council of England has also the right
to allow appeals to the judicial eommittee~—one of the survi-
vals of the authority of an ancient institution of England———
from the courts of Canada. This right is only exercised on
principles clearly laid down by this high tribunal, but it is

‘Hon. Mr. Blake in a desputch to the secretary of state for the colonies.
Can. Sees. P., 1877, No. 13, p. 8.

’”51‘he clause with respect to differential duties, (English Hans. Deb.,
Vol, 244, p. 1311), “is now left out of the governor-generals instruc-
tions, and the imperial government are content to rely upon the prerogative

right of disallowance, as a. suflicicnt security against the enactment of any-
measure by the parliament of Canada, that should he of such character as-

to call for the interposition of the royal veto.” Todd’s Parl. Government
in the Colonies, p. 187.

42 Federal Government in (hmzda. [498

emphatically a right to be claimed by the Canadian people as
forming part of the empire under the sovereignty of England.
It is a right sparingly exercised, for the people of Canadahave
great confidence in their own courts, where justice is adminis-
tered with legal acumen and strict impartiality ; but there are
decided advantages in having the privilege of resorting in some
cases, especially those atiectiiig the constitution, to a tribunal

,which is generally composed of men whose great learning

illustrates all those traditions which make the decisions of
Eugland’s courts respected the world over.

In the foregoing paragraphs I have mentioned the relations
that should naturally exist between the supreme head of the
empire and its colonial dependencies, I may here add, what
will be obvious to every one, that the power over peace and
war, and the general control of such subjects as fall within the
province of international law, are vested in the home govern-
ment, and cannot be interfered with in the least degree by the
government of the Dominion.

With these ‘exceptions which limit the jurisdiction of the
Dominion as a dependency, Canada possesses under the British
North America Act, and in accordance with the general
policy of England towards her selflgoverning colonies, a prac-
tically sovereign authority within the limits of her territory,
and has assumed all the proportions of‘ an empire. Her
constitution enables her to establish new provinces with
complete systems of government, as large as any of the
oommonwealths of the American Republic. The province of
Manitoba has already been formed out of the North—west
Territories acquired in 1870 from the company of Hudson
Bay adventurers who held a charter from the days when sov-
ereigns recklessly granted their followers vast areas of lapds,
larger than the great kingdoms of Europe. The territories are
regulated by the Dominion and granted from time to time
such privileges as are commensurate with their increasing pop
ulation and cipacity to carry on a system of local sc1f—govern—
ment. The Dominion appoints the governors of the provinces

499] Federal Government in Canada. 43

and can dismiss them under the provisions of the consti‘
tntion, occupying in this respect the position that England
formerly held with reference to the provinces before the union
of 1867.

Perhaps no one fact more clearly illustrates the important
position which Canada has attained within a few years, than
the recognition by the imperial government of her absolute
right to be consulted, and have a direct voice in the negotia-
tion of all treaties which immediately affect her interests. In
the arrangement of the VVashingl:on treaties of 1871 and 1888,
which dealt with the question of the llSl1e[‘l6S—–Si’.l.ll unhappily
unsettled owing to the refusal. of the Senate to ratify the last
treaty——Canada was represented by one of her ahlest states-
men in each case.‘ In negotiations between Canada, France
and Spain for a commercial treaty, the imperial government
specially commissioned the Canadian high representative in
London with full powers to act. The appointment of the
high commissioner of Canada was of itself a concession to the
growing importance of Canada as a dependency of the empire
and of the consequent necessity that has arisen of having in
London a representative who would occupy a. higher position
than the previous agents of the colonies. In the case of all
treaties affecting Canada directly, their ratification depends on
the assent of her parliament.“ In fact, the history of all impe-
rial legislation with respect to extradition and other treaties,
also proves the desire of the imperial authorities to give due
Scope to Canadian legislation as far as it is compatible with

‘In 1871 by Sir John Macdonald, then as now, Premier. In 1888 by Sir
Charles Tapper, now High Commissioner of (‘/mada in London.

‘See Con. Stat. for 1888 (treaty of Washington), c. 3, SGOA 3, and art. XVI
of schedule. The 132d section of the B. N. A. Act provides: “ The parlia-
ment 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, to\vards foreign countries, arising under treaties
between the empire and such foreign countries.” Also comments of Dr.
Todd in Purl. Grovt. in Colonies, p. 205.

44 Federal Government in Canada. [500

the interests of the empire. In some treaties it is expressly
stipulated that they shall be only applicable to the colonial
possessions “so far as the laws, for the time being, in force in
such colonies will allow.” 1 The large measure of self-goverm
ment that Canada enjoys in other particulars will be seen in
the course of these lectures.

We come now to consider the nature of the federal system,
the respective powers of the dominion and provincial govern-
ments, and the relations that they heauto one another under
the constitution. We have already seen by the three reso-
lutions of the Quebec conference that I have cited, that the
object of the fouudeis of the union was to give to the central
authority the control over matters of general or gmwinat-ional
importance, and to the provincial governments jurisdiction over
matters of a local or provincial nature. In arranging the
details of the union the framers were naturally called upon to
study carefully the American constitution in its origin and
development. In 1864 the civil war was not yet brought to
a close, and statesmen, the world over, were naturally in doubt
as to its efihcts on the constitution and union at large. Cana-
dian statesmen saw that ever since the foundation of the weak
confederation of 17 75, and of the constitution that was subse-
quently adopted in 1787, to give elficiency, strength and
permanency to the union,———“ to form 2. more perfect union,”
in the language of its prean1ble,——-a greatstruggle had been
going on between the national and the state governments for
the supremacy. They saw that certain states had persistently
asserted the doctrine of State sovereignty, and the right of
nullifying or refusing to be bound by certain acts of the
national government. Nullification and secession, it was seen,
were justified by lawyers and statesmen, as the last resort of
sovereign states, when what was believed to be their inherent
rights were invaded by the national government. The states-
men that assembled at Quebec believed that it was a defect in

‘See treaty with Russia in Can. Statutes for 18874

501] Federal Govemment in Canada. 45

the American constitution to have made the national govern-
ment alone one of enumerated powers, and to have left to the
States all the powers not expressly taken from them.‘

For these reasons mainly the powers of both the Dominion
and the Provincial governments are stated, as far as practicable,
in express terms with the View of preventing a eonfliot between
them ; the powers that are not within the defined jurisdiction
of the provincial governments are reserved in general terms to
the central authority. In other words “ the residuum of
power is given to the central instead of to the state authori-
ties.” In the British North America Act we find set forth
in express words: ~

1. The powers vested in the Dominion government alone;

2. The powers vested in the provinces alone;

3. The powers exercised by the Dominion government
and the provinces concurrently;

4. Powers given to the Dominion government, in general

The powers vested in the parliament of Canada are set forth
in the ninety-first section of the constitution, which enacts that
the Queen with the advice and consent of the Senate and
House of Commons may “ 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; and for greater
certainty, but not so as to restrict the generality of the fore-
going terms of this section, it is hereby declared that (notwith-
standing 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 enumer-
ated, that is to say:

1. The public debt and property.

2. The regulation of trade and commerce.

‘See remarks of Sir John Macdonald, then attorney-general, now p1’&
mier of Canada: Confederation debates, p. 33.

46 Federal Government in Canada. [502

3. The raising of money by any mode or system of taxation.

4. The borrowing of money on the public credit.

5. Postal service.

6. The census and statistics.

7. Militia, military and naval service and defence.

8. The fixing of and providing for the salaries and allow-
ances of civil and other ollicers of the government of Canada.

9. Beacons, buoys, lighthouses and Sable Island.

10. Navigation and shipping.

11. Q,u:1rz1ntine and the establishment and maintenance of
marine hospitals.

12. Sea—c0ast and inland fisheries.

13. Ferries between a province and a British or foreign
country, or between two provinces.

14. Currency and coinage.

15. Banking, incorporation of banks and the issue of paper

16. Savings banks.

17. VVeights and measures.

18. Bills of exchange and promissory notes.

19. Interest.

20. Legal tender.

21. Bankruptcy and insolvency.

22. Patents of invention and discovery.

23. Copyrights.

24. Indians and lands reserved for the Indians.

25. Naturalization and aliens.

26. Marriage and divorce.

27. “The criminal law, except the constitution of the courts
of criminal jurisdiction, but including the procedure in crimi-
nal matters.

28. The establislnnent, maintenance, and management of

29. Such classes of subjects as are expressly excepted in the
emlmeralion of the classes of subjects by this act assigned
exclusively to the legislatures of the provinces.”

503] Federal Government in Canada. 47

And the section concludes, with the view obviously of giv-
ing more definiteness to its provisions and to lessen the
chances of confiicts of jurisdiction with the provincial authori-
ties, that “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 com-
prised in the enumeration of the classes of subjects by this act
assigned exclusively to the legislatures of the provinces.”

Having, as they believed, definitely stated the general powers
that appertain naturally to a central government, exercising
jurisdiction over the whole Dominion, the framers of the Act
defined in the ninety—.second section the powers that the local
governments can exercise within their constitutional limits.

The legislature may, in each province, “exclusively make
laws ” in relation to the classes of subjects enumerated as
follows :

1. The amendment, from time to time, notwithstanding
anything in this act, of the constitution of the province, except
as regards the office of lieuteuant—governor.

2. Direct taxation Within the province in order to the rais-
ing of a revenue for provincial purposes.

3. The borrowing of money on the sole credit of the

4. The establishment and tenure of provincial otfices, and
the appointment and payment of provincial otficers.

5. The management and sale of the public lands belonging
to the province, and of the timber and wood thereon.

6. The establishment, maintenance and management of
public and reformatory prisons in and for the province.

7. The establishment, maintenance and management of hos-
pitals, asylums, charities and eleemosynary institutions in and
for the province, other than marine hospitals.

8. Municipal institutions in the province.

9. Shop, saloon, tavern, and auctioneer and other licenses,
in order to the raising of a revenue for provincial, local or
municipal purposes,

48 Federal G’ove7-nment in Ckmada. [504

10. Local works and undertakings other than such as are of
the following classes:

a. Lines of steam or other ships, railways, canals, tele-
graphs and other works and undertakings connecting the
province with any other or others of the provinces, or extending
beyond the limits of the province;

Z». Lines of steamships between the province and any British
or foreign country;

(2. Such works as, although wholly situate within the prov-
ince, 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

11. The incorporation of companies with provincial objects.

12. Solemnization of’murriage in the province.

13. Property and civil rights in the province.

14. 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 these courts.

15. The imposition of‘ punishment by fine, penalty or
imprisonment for enforcing any law of the province made in
relation to any matter coming within any of the classes of
subjects enumerated in this section.

16. Generally all matters of a merely local or private nature
in the province.

A careful consideration of the foregoing section will show
how large and important a measure of local self—governn1ent
is given to all the provincial members of the confederation.
It was the object of the framers of the constitution to leave to

‘In 1883 the parliament of Canada paused an act declaring certain rail-
ways to he “works for the general advantage of Canudzw.” within the
meaning of the section. (See Bourinotfs Parliamentary I’ractiee in Can-
a<ln, pp. 587-589). This subject was ably argued before the Supreme
Court of Canada in 1888. See Hon. Mr. Blake’s nrgument in the Munitohzv.

505] Federal Government in Ca/mzcla. 49

the old provinces as many of those powers and privileges that
they exercised before the confederation, as are necessary to the
eiiicient working of a local government and at the same time
to give the central power effective control over all matters
which give unity and permanency to the whole federal organi- ‘
zation, of which the provincial entities form political parts
or divisions. It will be seen, however, that the all important
question of education does not fall within the enumeration of
matters belonging to provincial legislation, which I have just
given, although it is above all others a subject of local or
provincial interest. The reason for this must be sought in the
political history of the question. ~

While the dififerent provinces before confederation were
perfecting their respective systems of education, the question
of separate schools attained a great prominence. The Protes-
tant minority in Lower Canada, and the Roman Catholic
minority in Upper Canada, earnestly contended for such a
separation as would give the Protestants, in the former, and
the Roman Catholics, in the latter province, control of their
own schools, and not oblige the children of the two distinct
religious beliefs to mix together. The religious instruction
which the Roman Catholics consider inseparable from any
public school system could not be accepted by the Protestants.
Non-sectarian schools ‘are at direct variance with the principles
of the Roman Catholic Church. Finally, in all the provinces,
except New Brunswick and Prince Edward Island, separate
Schools obtained at the time of the union, and it accordingly
became necessary to give the minorities guarantees for their
continuance, as far as such could be given in the constitution.
The British North America Act now provides that while the
legislature of a province may exclusively make laws on the
subject of education, nothing therein shall prejudicially affect
any of the denominational schools in existence before July,
1867. An appeal lies to the governor—gencral in council from
any act of the provincial authority aifecting any legal right
or privilege that the Protestant or Roman Catholic minority

50 Federal Govemment in Canada. [506

enjoyed at the time of the union. In case the provincial
authorities refuse to act for the due protection of the rights
of minorities, in accordance with the provisions of the consti-
tution, then the parliament of Canada may provide a remedy
for the due execution of the law provided in this behalf.‘
Parliament, so far, has not been called upon to act on the pro-
visions of this section. The questions that arose in 1872 and
in subsequent years, with respect to the New Brunswick school
act of 1871, providing for a compulsory rating and assessment
for non-sectarian schools, did not come under the law, for the
Roman Catholics of New Brunswick did not enjoy separate
privileges from other classes of their follow—citizcns previous
to confederation; and all the authorities of the Dominion, as
well as of England, the minister of justice of Canada, the

‘B. N. A. Act, 1867, see. 93. In and for each province the legislature
may exclusively make laws in relation to education, subject and according
to the following provisions : —

(1.) Nothing in any such law shall prejudicially affect any right or pri-
vilege with respect to denominational schools which any class of
persons have by low in the province at the union ;

(2.) 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 he and the
same are hereby extended to the disscntient schools of the Queenls
Protestant and Roman Catholic subjects in Quebec;

(3.) ‘Where in any province asystcm of separate or dissentient schools
exists by law at the union, or is thereafter established by the legis-
lature of the province, an appeal shall lie to the governongeneral
in council from any act or decision of any provincial authority
affecting any right or privilege of the Protestant or Roman Catho-
lic minority of the Queerfs subjects in relation to education;

(4.) In case any such provincial law as from time to time seems to the
govcrnongencral in council requisite for the due cxecution of the
provisions of this section is not made, or in case any decision of the
governoimgeneral 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 in council under this section.

507] Federal Gbvemment in Canada. 51

courts, and the colonial secretary of state, and the judicial
committee of the privy council, concurred in the opinion that
the legislature had 2. right to enforce the assessments objected
to by the Roman Catholics of the province, and had acted
legally within the powers conferred upon them by the act of

The Dominion and Local governments also exercise cer-
tain rights in common. Among the subjects on which they
have concurrent powers of legislation are agriculture and
immigration.” The dominion parliament may make laws on
these subjects for any and all of the provinces, and each legis-
lature may do the same for the province over which it has
jurisdiction, provided no provincial act is repugnant to any
dominion act. These provisions have so far worked in the
interests of the provinces separately and of the dominion as a
whole. Both these authorities are equally interested in the
promotion of matters so deeply affecting the development of
the natural resources of all sections. The provinces, excepting
Manitoba, have the control of their lands and mines, while
the dominion is interested in the opening up of the vast terri-
torial area. which it has in the north—west; and it is conse-
quently clear that these concurrent powers are wisely arranged
in the constitutional act. ‘

If we study the two sections, enumerating the respective
powers that fall within the jurisdiction of the dominion par—
liament and the provincial legislatures, we shall see that there
are certain subjects, which may, as the operation of the act

‘For history of this case see ‘.l.‘o<1d‘s Pm-l. Govt. in Colonies, pp. 346-352.

’B. N. A. Act, 1867, see. 95. In each province the legislature may make
laws in relation to agriculture in the province, and to immigration into the
province; and it is hereby declared that the parliament of Canada. may
from time to time make laws in relation to 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 isnct
repugnant to any act of the parliament of Canada.

52 Federal Govermnmt in Canada. [508

proves, fall, under certain limitations, within the province of
both. For instance, there is insurance, on which both the
dominion government and provincial authorities have fully
legislatcd——the former under the general provision giving it
the jurisdiction over ” the regulation of trade and commerce ;”
the latter under the very wide right to incorporate companies
“ with provincial objects.” The question of jurisdiction has
been decided by the courts of Canada, and afirmed by the
privy council, and principles laid down of much importance
since they serve to prevent confiict of authority on other sub-
jects and give each jurisdiction that power which it should
exercise in accord with the general spirit of the constitution.
It is now authoritatively decided that the terms of the eleventh
paragraph of the ninety—second section are sufficiently com-
prehensive to include insurance companies, whose object is to
transact business within provincial limits.

If a company desires to carry on operations outside of the
province it will come under the provisions of the general fed«
eral law, to Which it must conform and which contains special
provisions for such purposes. But the authority of the
dominion parliament to legislate for the regulation of trade
and commerce does not comprehend the power to regulate by
legislation the contracts of a‘ particular business or trade, such
as the business of fire insurance in a single province. There-
fore while the dominion parliament may give power to
contract for insurance against loss or damage by fire, the form
of the contract and the rights of the parties thereunder, must
depend upon the laws of the country or province in which the
business is done.‘

Although the Dominion parliament has exclusive jurisdic-
tion over the criminal law, the local legislatures must necessa-
rily have it within their power, as provided for in the act, to

‘ See C:1rf.wright’s cases on RN. A. Act, vol. L, pp. 265—350; 4 App,Rep.
Ontario, 96, 103; 43 U. C. Q. B. 261, 271; Sup. Court R., vol. IV., pp. 215-
349; 45 L. T. N. S, 721.

509] Federal Government in Canada. l33

impose punishment by fine, penalty or imprisonment, for
enforcing any law of the province within its legislative
authority. The legislature may add “ hard labor” to confine-
ment or restraint in prison in iegislating ona subject within its
jurisdiction. Such a power is notin conflict with the authority
of the dominion parliament over criminal matters.‘ This
seems a necessary incident to a lgislative power. It isa prin-
ciple which parliament itself applies with respect to civil rights
over which the legislatures have exclusive jurisdiction. All
the legislative authorities must act, however, within their
constitutional spheres, and not push their pretentious to
extremes. As in the insurance case just mentioned, powers
should be sought from each legislative body within its consti-
tutional limits. Nor should parliament interfere with such
details of an organization as are wholly within the jurisdiction
of a provincial sovereignty.”

It must necessarily happen in the operation of a written
constitution like ours that conflicts of jurisdiction will arise in
cases where the respective powers of the distinct legislative
authorities are not suificiently defined. Sometimes it is dith-
eult, while the constitution is working itself out, to decide
where the jurisdiction rightly lies. The diffieulty that may
arise in such cases can be seen by reference to the decisions of
the Canadian courts and of the judicial committee of the privy
council on questions affecting the traiiicin intoxicating liquors.
The privy council has decided that the Canada temperance act
of 1878 which, in eifect, authorizes the inhabitants of each
town, parish or county to prohibit or to regulate the sale of
liquor, and to direct for whom, or for what purposes, and under
what conditions, spirituous liquors may be sold therein, does
not deal with riiatters of a purely local nature, nor with prop-
erty nor civil rights, nor with the raising of a. revenue for pro-

‘See Hodge as. the Queen, 9 App. Gas, 117.
‘Remarks of Sir John A. Maodonald, Mr. Blake and others, Can. Han-
sard, 1883, pp. 499, 600.

54 Federal Govemmeitt in Cimada. [510

vincial, local or municipal purposes, as assigned exclusively to
the jurisdiction of the provincial legislatures; but is rather
one of those subjects relating to public order and safety which
fall within the general authority of parliament to make laws
for “the order and good government” of Canada. On the
other hand, the same body has decided that it is competent for
a legislature of a province to pass an act regulating the issue
of licenses for the sale of liquor in the municipalities of a
province, and authorizing the appointment of commissioners
to define, by resolutions, the conditions and qualifications re-
quired to obtain licenses. This learned body has pointed out
that the powers of such a provincial act are confined in its
operations to municipalities in a province, and entirely local
in its character, and in fact identical for the most part with
the powers that belonged to municipal instit-utions under the
laws that had been passed by the legislatures previous to con~
federation. In short, such an act was considered, by their
Lordships, as in the nature of police and municipal regulations,
calculated to preserve in the municipality peace and public
decency, ‘to repress drunkenness and disorderly and riotous
conduct.‘ These decisions, to a certain extent, dealing as they
do with cognate subjects, will perplex the ordinary lay mind
not accustomed to legal suhtilties; and there are those who
say” that in the first decision their Lordships had not the hen-
efit of a very complete argument in favor of the contention

‘See 7 App. Cas., 829 : Legal News, January 19th, 1884.

“The late Mr. Justice Henry, one of the authors of the confederation, in
a. judgment on a cognate question, reiterated the opinion he had expressed
on the Canada Temperance act, that the British North America act, “if
read in the light which :7. knowledge of the subject lyefore the passage
of that act would produce, plainly gives the power of legislation to the
local legislatures in respect of licenses.” His whole argument went to show
“the right to make laws for the peace, &c., of Canada. is as fully restricted
to such subjects as do not come within the classes of subjects assigned to the
legislatures of the provinces as language can make it ;” and that the privy
council did not give due consideration to the power of the legislatures
over those special subjects. Sup. Court 1%., vol. Xl’., pp. 33-39.

511] Federal Government in Canada. 55

for local jurisdiction, and hardly well appreciated the full
weight that should be given to the paragraph giving the prov-
inces complete jurisdiction over all matters of a merely local
or private nature in a province. At all events, the second
decision has recommended itself as in harmony with the gen-
eral spirit of local powers granted to the provincial legisla-
tures. As it was, the immediate effect of these decisions, in a
measure involving contradictions, was to throw the liquor-
licensing legislation of the country into much confusion ; for
the Dominion government considered itself justified in passing
3 general license act, which subsequently was declared ultra.
vires, except where the act dealt with wholesale and vessel
licenses, or carried into effect certain provisions of the Canada
Temperance act.‘

The conclusion we come to after studying the operation of
the constitutional act, until the present time, is that while its
framers endeavored to set forth more definitely the respective
powers of the central and local authorities than is the case with
the constitution of the United States, it is not likely to be any
more successful in preventing controversies constantly arising
on points of legislative jurisdiction. The American constitu-
tion is remarkable for its precision, the generality of its
principles, the avoidance of too many details, and the elasticity
of which it is capable when applied to the needs and exigencies
of the nation and states. The effort was made in the case of
the Canadian constitution to go in the other direction, and
more fully define the limits of the authority of the dominion
and its political parts ; but while great care was evidently taken
to prevent the dangerous assertion of provincial rights, it is
clear that it has the imperfections of all statutes, when it is
attempted to meet all emergencies. Happily, however, by
means of the courts in Canada, and the tribunal of last resort;
in England, and the calm deliberation which the parliament is

‘See B01Lrinot’s Manual of Constitutional History, pp. 139446.

56 Federal (¥overnme’/Lt in Canada. [512

learning to give to all questions of dubious jurisdiction, the
principles on which the federal system should be worked are,
year by year, better understood and the dangers of continuous
eonflict lessened. It is inevitable, if we are to judge from the
working of a federal system in the United States, that there
should be,,at times, a tendency either to push to extremes the
doctrine of the subordination of the provinces to the central
power, or on the other hand to claim powers on behalf” of the
provincial organizations, hardly compatible with their position
as members of a confederation based on the principle of giving
complete jurisdiction to the central government over all xnat~
ters of national and general import. It is obvious that in
certain legislation the Dominion parliament inust trench upon
some of the powers exclusively given to the local organiza-
tions, but it cannot be argued, with a due regard to the true
frainework of the constitutional act and the principles that
should govern a federal system like ours, that the powers of
the provinces should be absorbed by the dominion or central
authority in cases of such apparent confliet. Referring to this
point the privy council calls attention to the fact that the gen-
eral subject of “marriage and divorce” is given to the
jurisdiction of the dominion parliament, and the “solemnl-
zation of marriage” to the legislature of a province. It is
evident that the soleinnization of marriage would come within
the general description of the subject first mentioned; yet no
one can doubt, notwithstanding the general language of the
ninety—first section, that this subject is still within the exclu-
sive anthority of the legislatures of the provinces. “So,”
continues the privy council, “ the raising of money by any
mode or system of taxation is enumerated among the classes of
subject in section 11inet.y~one, but though the description is
sufficiently large and general to include direct taxation within
the province in order to aid the raising of a revenue for pro-
vincial purposes assigned to the provincial legislatures by the

513] Federal Gooermwwnt in (Zbmada. 57

that in this instance also the general power should override
the particular one.” 1

It is now laid down by the highest judicial authorities that
the dominion parliament has the right to interfere with

“property and civil rights ” in so far as such interference may-

be absolutely necessary for the purpose of legislating generally
and effectually in relation to matters confided tothe parliament
of Canada. Laws designed for the promotion of public order,
safety or morals, and which subject those who contravene them
to criminal procedure and punishment, belong to the subject of
public wrongs rather than to that of civil rights. They are
of a nature which fall within the general authority of parlia~
ment, to make laws for the good order and government of
Canada, and have direct relation to criminal law, which is one
of the enumerated classes of subjects assigned exclusively to
the parliament of Canada. Few if any laws could be made by
the parliament for the peace, order and good government of
Canada which might not, in some incidental way, aifeot pro-
perty and civil rights; and it could not have been intended
when assuring to the provinces exclusive legislative authority
on the subject of property and civil rights, to exclude the par-
liament from the exercise of this general power whenever any
such incidental interference would result from it.” As on the
one hand the federal parliament cannot extend its own
jurisdiction by :1 territorial extension of its laws, and legislate
on subjects constitutionally provincial, by enacting them for
the whole dominion ; so, on the other hand, a provincial legisla-
ture cannot extend its j uris federal, by a territorial limitation of its laws and legislate on
matters left to the federal power, by enacting them for the
province only, as for instance, incorporate a bank for the

‘L. T. N. S., 721: Cartwright, Vol. 1., pp. 272, 273.
‘ 7 App. Can, 829.
‘ Can. Sup. Court R., IV., 310.

58 Federal Govemment in Canada. [514

When the British North America Act enacted that there
should be a. legislature for a province, and that it should have
exclusive authority to make laws for the provinces and for
provincial purposes in relation to the matters enumerated in
the ninety-second section, it conferred powers not in any sense
to be exercised by delegation from, or as agents of, the .impe~
rial parliament, but authority as plenary and as ample within
the limits prescribed by the section, as the imperial parliament,
in the plenitude of its,power, possesses and could bestow.‘

In short, each legislative body should act within the legiti~
mate sphere of its clearly defined powers, and the dominion
parliament should no more extend the limits of its jurisdic-
tion, by the generality of the application of its law, than a
local legislature should extend its jurisdiction by localizing
the application of its statutes.”

I might cite other opinions bearing on the same important
question, but I have already given enough to show the prin~
ciples that should generally prevail if the federal constitution
is to be efficiently carried out with a true consideration of all
the interests involved? The federal government should work
in harmony with provincial institutions, and by leaving them
full scope within the limits of the constitution at once give
strength and stability to the central government and confidence
to the various local organizations without which it could not

In one most important respect the dominion government
exercises a direct control over the legislation of each province.
While the imperial government can disallow any act of the

1 9 App. Gas, 117 ; Cartwright, vol. 111., p. 162.

The same power exists in the States. “ When a particular power,” says
Judge Cooley, “is found to belong to the States, they are entitled to the
same complete independence in its exercise as the national government in
wielding its own authority.”

‘Legal News (the late Mr. Justice Ramsay) on Hodge es. the Queen,
January 26th, 1884.

“See Bourinot’s Manual of Constitutional History, chap. XIV.

515] Federal Government in C’a/nada. 59

Canadian parliament at variance with the interests of the
Empire, the governor in council can, within one year from
its receipt, disallow any act of a provincial legislature.
Here is one of the evidences which the constitution affbrds
of the subordinate position in certain particulars of the pro-
vincial authorities. It illustrates the fact that the dominion
government now occupies these relations towards the provin-
cial governments that England, before the confederation, held
with reference to the provinces, and still does in the case of
all colonies outside of Canada. This power of disallowance
is not limited in terms by the British North America Act,‘
but may be exercised even with respect to an act clearly within
the constitutional jurisdiction of the provincial legislatures.
It has so far been exercised in a very insignificant number of
cases, compared with the Vast amount of legislation that annu-
ally passes the provincial bodies; but in some of these cases it
caused much irritation, notably in Manitoba, whose provincial
railway acts were vetoed on several occasions on the ground
that they were in eonfliot with obligations that the dominion had
assumed towards the Canadian Pacific Railway. These
restrictions were only removed after parliament had given the
Pacific railway certain privileges as compensation for the
removal of their railway monopoly in the north-west. From
these and other instances of the exercise of this political power,
the student will see that it is one to be exercised with great
discretion and judgment, as otherwise it may involve conse-

‘ See. 90. The following provisions of this act respecting the parliament
of Canada, namely,-—the provisions relating to appropriation and tax bills,
the recommendation of money votes, the assent to bills, the disallo\v2mee
of acts and the signification of pleasure on bills re-2erved,—sha.l1 extend
and apply to the legislatures of the several provinces as if those provisions
were here re~enacted and made applicable in terms to the respective pro-
vinces and the legislatures thereofi with the substitution of the lieutenant-
govcrnor of the province for the governor—gcnernl, of the governor-general
for the Queen, and for :1 secretary of state, of one year for two years, and of
the province for Canada.

60 Federal Government in Cimaola. [616

quences fatal to the harmony and integrity of the confedera-
tion. This power can be properly exercised when the act
under consideration is beyond the constitutional competency of
the legislature, or when it is repugnant to dominion legislation
in cases where there is concurrent jurisdiction, or when it is
hostile to the rights enjoyed by a minority under the constitu-
tion, or when clearly hostile or dangerous to the peace and
unity of the dominion generally. Before advising the gover-
nor—genera1 on an act of dubious import, or only partially
defective, the council must consider whether it will not be
sufficient to inform the legislative body, remponsible.for its
passage, of the objectionable features, and allow it to go into
operation on the understanding that they will be removed by
an amending act. Or in cases where the act is useful, though
ultra. vires, the government has recommended confirmatory
legislation by the dominion parliament, or in matters of doubt
they have been left to the courts to decide whenever a question
should arise for their determination. The cases are so
numerous when the dominion government is called upon to
exercise its power of’ allowance or disallowance, that it is out
of the question that I should here attempt to lay down with
any accuracy, the various reasons and principles that should
guide it in this important work of supervision. The danger
arises from the exercise of the power, on the grounds of public
policy, in the case of a question clearly within the constitu-
tional powers of a legislature. The principle that should
prevail, as a rule, is to leave to their operation all acts that
fall within the powers of the provincial legislature, which
within its legal sphere has as absolute a right of legislation as
the dominion parliament itself; and if the dominion authori-
ties, at any time, for suflicient reasons, consider it necessary to
interfere in provincial affairs, they must be prepared to justify
their action before parliament and the country, so deeply inter—
ested in the preservation of the union. Opinion is divided as
to the wisdom of a provision which gives so sovereign a
power to a political body, and it may be doubted if in this

517] Federal Govemment in Canada. 61

respect our constitution is an improvement upon that of the
United States. The veto is so much valued in the states that
while originally only one state, Massachusetts, vested it in the
governor, now all but four have it. The President vetoes the
acts of Congress, which can, however, override his decision by
2. two—thir state, as just‘rernar_ked, exercise the same power with respect
to state legislation. But the disallowance of state legislation
by the executive at Washington, has never existed, and was
never suggested in the case of the American federal system.‘

The adoption of such 9. principle in 1787 would have been,
in all probability, fatal to the passage of the constitution of the
states, many of whom agreed to that measure with doubt and
suspicion. They agreed, wisely, as experience seems to show,
to leave the judicial branch of the constitution to determine
the constitutionality of all acts of congress or of the legislature.

Political considerations cannot enter into this judicial
determination. As long as a statute is within the constitu-
tional jurisdiction of a body that passed it, the federal judiciary
cannot do otherwise than so declare, even if it be objectionable
at the time on grounds of public policy. The future will
soon prove whether this extraordinary supervision, given to
the dominion over the provinces, is calculated to strengthen

‘ “While the constitution was being framed the suggestion was made, and
$01’ 8- time seemed likely to be adopted, that a veto on acts of state legisla~
tures should be conferred upon the federal congress. Discussion revealed
the objections to such a plan. Its introduction would have offended the
sentiment of the states, always jealous of their autonomy; its exercise would
have provoked collisions with them. The dieallowance of a state statute,
even if it did really offend against the federal constitution, would have
seemed a political move, to be resented by a political counter-move. . . . .
But by the action of the courts the self~love of the states is not wounded,
and the decision annnlling their laws is nothing but a tribute to the
superior authority of the supreme enactment towhich they were themselves
Parties, and which they may themselves desire to see enforced against some
other state on some not remote occasion.”—-Prof. Bryce’s American Com-
monwealth, I., p. 343.

62 Federal Gooemmxmt in Canada. [518

the confederation, or has in it the elements of political discord
and disunion. As long as the dominion and provincial gov-
ernments are politically identified, the danger from confliet is
minimized, but it is possible to suppose the case of violent
antagonism between these governments when the central power
might in a moment of passion or arrogance use its authority
to check or thwart the government made subordinate to it in
this particular. Happily, so far, the history‘ of this large
power is not calculated to raise apprehensions that it is likely
to be recklessly exercised ; for the cases which have heretofore
created much discussion, and even discontent, have been
defended on grounds of public policy or the public faith,
though the wisdom and soundness of that policy has been
doubted by others who have looked at the whole question from
a purely provincial point of view. The sound sense of the
people must always prevail in a country like this, and keep
all governments from unduly and rashly interfering with the
constitutional rights of the difi”erent sections of the domin-
ion, to whom has been granted such a complete system of
local selflgovcrninent as is compatible with the unity and per-
manency of the dominion at large.’

‘See correspondence, reports of the Ministers of‘ Justice, and orders in
council upon the subject of provincial legislation, 18674887, compiled
under direction of the Ministers of Justice, by W. E. II dgins, for a com»
plete history of the exercise of this important responsibility thrown upon
the dominion government.

’The inexpedieney of disallowing any measure believed to be within the
constitutional jurisdiction of a province was strongly asserted in the debate
in the Canadian House of Commons in 1889, on the Quebec Statute, 51~5Z
Victoria, c. 13. “ An act respecting the settlement of the Jesuiux’ Estates.”
The Jesuits had been suppressed by the Pope in 1773, and their property
taken possession of in 1800 by the British government, which applied the
revenues thereof to public instruction in the province of Lower Canada;
but the Roman Catholic Church, always through its Bishops, contended
that it should be vested with all the estates as a. result of the suppression
of the society. This body, however, has been reinstated in these later
times, and an act of incorporation was granted it bythe Quebec legislature in

_ 1887. The Quebec government then carried through the first-mentioned

519] Federal Government in Canada. 63

It is on the courts of Canada, aided by the ripe judgment
and learning of the judicial committee of the privy council, we
must, after all, mainly depend for the satisfactory operation of
our constitutional act. The experience of the United States
has shown the inestimable value of the decisions given by the
judges of the supreme and the federal courts on questions that
have arisen, from time to time, in connection with their con-

ack, authorizing the payment of $400,000 as compensation for the sale of the
estates formerly held by the Jesuits, and us a means of settling a long stand~
ing difliculty. These estates, it must be remembered, became the property
of the province after confe the legislature.

The negotiations with the Sea of Rome, and the Society are formally
set forth in the preamble of the act in the shape of correspondence
between the Quebec government and the representatives of those reli~
gious bodies, and it is expressly stated that the agreement will be bind~
ing only in so far as it shull be ratified by the Pope and the Legisla~
ture, and the amount of compensation was to remain as 2. special deposit
until the former had made known his wishes respecting its distribution.
The government in treating on the question, did not “recognize any
civil obligation but merely a moral obligation.” Subsequently the funds
were distributed by the Pope——the greater part to certain educational insti~
tutions in the province, and the rcmuinder to the Society. Out of this
settlement a heated controversy, involving old world and ancient issues,
has arisen in Canada, and was transferred to parliament by a resolution,
formally asserting tlmt the government should have at once disallowed the
not us beyond the power of the legislature because, among other things, “it
recognizes the usurpation of a right by 23. foreign authority, namely, His
Holiness, the Pope, to claim that his consent was necessary” to dispose
and appropriate the public funds of it province. It was contended on the
other hand that the Pope, as the head of the Church, was simply called upon
to act as an arbitrator between the disputants in a matter in which the inter~
ems ofthe Church were involved. The inference that may be drawn from the
debate on the whole question in the House of Commons is this: that the
almost unanimous vote in favor of the course of the government in allowing
the bill when it came formally hefore them (one hundred and eighty-eight
against thirteen) was chiefly influenced by the conviction that the
legislature of the province had an unquestionable right to dispose of its own
funds as it might think proper, or in the words of the minute of council,
5PPr0Ved by the governor-general, “ the subject matter of the not its one of
provincial concern, only having relation to a fiscal matter entirely within

64 Federal Crlovemment in Canada. [520

stitution. The name of Chief’ Justice Marshall, especially,
must be always associated with their fundamental law; for it
is in a great measure owing to his great legal knowledge, to
his broad views, to his capacity of comprehending the true
spirit, scope and meaning of the principles laid down in the
constitution, and to his ability to apply them to the circum-
stances that surrounded him st very critical times, that the

the control of the legislature of Quebec.” In the course of the learned
debate‘ that took place on the merits of this very vcxctions issue a very
clear exposition was given by several speakers from their respective points
of View of the principles by which the relations between the dominion and
the provincial governments should be governed. But (here is another
conclusion which I think may be fairly deduced from 2:. debate of this Chill‘-
ucter. An executive power which can be thus questioned in the political
arena seems obviously fraught with perilous consequences, If all questions
of the constitutionality of :1 provincial act could be decided only in the
courts,parliument would be saved the discussion of matters, which, once
mixed up with political and religious issues, must necessarily be replete
with danger in at country like Canada, with a population nearly half
Roman Catholic. In Canada and the United States, there is so much
respect for the law and the bench that the people rarely question the
wisdom of :1 judicial decision on any subject of importance, Can as much
he said for the judgment of a political body, however honestly rendered it
may he ‘I

The following remarks of a very judicious writer, Professor Dicey, in the
Law of the Constitution, (p. 166) may well be quoted in this connection:
“The main reason why the United States have carried out the federal
system with unqualified success is that the people of the union are more
thoroughly imbued with constitutional ideas than any other existing nation.
Constitutional questions arising out of either the constitutions of the sev-
cra.l states or the articles of the federal constitution are of daily occurrence,
and constantly occupy the courts. Hence‘ the people become a people of
oonstitutionulists; and matters which excitethe strongest possible feeling,—-
as for instance, the right of the Chinese to settle in the country,-—-—ure
determined by the judicial bench, and the decision of the bench is acqui-
esced in by the people. This acquiescence or submission is due to the
Americans inheriting the legal notions of the common law; that is, of the
most legal system of luw, if the expression may be allowed, in the world.”
See also Hure’s American Constitutional Law, vol. I, pp. 122, 128.

‘Sea Cannlliitn Ennsurd for April 26, 27 and 28,1889.

521] Federal Government in C’am,

union gained strength during the years he presided over the
Supreme Court.‘

The Quebec convention of 1864 appears to have fully ap-
preciated the necessity of having a Supreme Court of Canada
which would hear as much resemblance as possible to the
American tribunal; for they agreed to a resolution, which is
now embodied in the section of the British North America Act
which provides “for the constitution, maintenance and organ-
ization of a general court of appeal for Canada, and for the
establishment of any additional courts for the better adminis-
tration of the laws of Canada.” The Judiciary of Canada,
from the lOWL9h to the highest, can and do constantly decide
on the constitutionality of acts, passed by the various legisla-
tive authorities of the Dominion. They do so in their capa-
city as judges and expoundcrs of the law, and not because
they have any especial commission, or are invested with any
political powers or duties by the constitution?

Unlike the United States, Canada has no federal courts
established in the provinces, although the section just quoted
seems to provide for some such courts, should they be consid-
ered necessary. The constitution, maintenance and organiza-
tion of the courts in the provinces will be seen, by reference

‘ Professor Bryce (The American Commonwealth, II., p. 1) very tcrsely
shows the importance of the influence that the decisions of the supreme
court have exercised on the constitution: “Hence, although the duty of the
court is only to interpret, the considerations affecting interpretation are
more numerous than in the case of ordinary statutes, more delicate, larger
in their reach and scope. They sometimes need the exercise not merely of
legal acumen and judicial fairness, but of 9. comprehension of the nature
and methods of government which one does not demand from the European
judge, who walks in the narrow path traced for him by ordinary statutes.
It is therefore hardly an exaggeration to say that the American constitu-
tion, as it now stands, with the mass of foregoing decisions which explain
it, is 3 far more complete and finished instrument than it was when it came
first new from the hands of the convention. It is not merely their work
but the work of the judges, and, most of all, of one man, the great Chief
J ustioe Margh 3.11:’

’See II. Bryce, 12.184.

66 Federal Gozzeymment in Canada. [522

to the ninety~second section, to be within the matters placed
under provincial jurisdiction, though thejudges are appointed
and paid by the dominion government, with the exception of
the courts of probate in Nova Scotia and New Brunswick.‘
In 1875, however, it was deemed advisable to pass an act
providing for the establishment of a Supreme Court and Ex-
chequer Court of‘ Canada? But the court is only a general
court of appeal for Canada in a limited sense, since the exist-
ing right of appeal in the various provinces to the privy
council has been left untouched. Nor can it be called a final
court of appeal for Canada, since the privy council entertains
appeals from its judgments by virtue of the exercise of the

royal prerogative.’ This court consists of at chief justice and

“five puisne judges, two of whom, at least, must be appointed
from the bench or bar of’ the province of Q,uebcc—a provision
intended to give the court the assistance of men specially
versed in French Canadian law. With certain exceptions set
forth in the act, an appeal can lie to this court and from the
highest court of final resort in at province. The governor-
gencral in council may refer to the supreme court for hearing
or consideration any matter which he deems advisable in the
public interest ;‘ but in certifying their opinion, the judges,

‘Secs. 96-97. The Maritime Court of Ontario is, however, a federal

‘.38 Wet, ch. 11. The act was amended in 1887, by removing the Exche-
quer Court jurisdiction from the Supreme Court and giving it to a judge
especially appointed for that purpose. 50-51 Victx, ch, 16.

3Cussell’s Practice of the Supreme Court of Canada, p. 4.

‘No such provision exists in the case of :2. federal judiciary. That
branch of the government cun he called upon “only to decide controversies
brought before them in 8. legal form; and therefore are bound to abstain
from any extra.-judicial opinions upon points of law, even though solemnly
requested by the executive. President Washington, in 1793, requested its
opinion upon the constitution of the treaty with France of 1778 ; but they
declined to give any opinion for the reasons just stated.” Stoi-y’s Commen-
taries (Cooley‘s ed.), § 1571.

Some of the state constitutions provide for a similar reference by
the governor or legislature to the Supreme Court of the state, “ The

523] Federal Gocemmmvt in Canada. 67

following the practice of the judicial committee, do not give
any reasons. On more than one occasion this power of refer-
ring a question, on which there is a legal or constitutional
difficulty, has been found very useful to the parties interested,
as well as to the country at large.‘ It is also provided that
controversies between the dominion and any province, or
between the provinces themselves, may he referred to the
exchequer court, and on appeal from that court to the
supreme court, and cases in which the question of the validity
of a dominion or provincial act is shown to be material to the
issue, may come within the jurisdiction of the court, whenever
the legislature of one province has passed an act——as has been
done by Ontario, Nova Scotia, and British Columbia~—agree—
ing to such references. Either house of parliament may also
refer to the court any private bill for its report thereon, but
so far the senate alone has availed itself of this provision in
the case of a bill of doubtful jurisdiction? –

It will be seen from this summary of the powers of the
court that it is intended to make it, as far as practicable, a

judges of the Supreme Court of Massachusetts suggest in their very
learned and instructive opinion delivered to the legislature, December 31,
1878, that this provision, which appears first in the Massachusetts consti-
tulion of 1780, and was doubtless borrowed thence by the other states, evi—
dently had in view the usage of the British constitution, by which the
King as well as the House of Lords, whether acting in their judicial or
in their legislative capacity, had the right to demand the opinion of the
twelve judges of England. This is still sometimes done by the House of
Lords; but the opinions of the judges are not necessarily followed by that
House, and though always reported are not deemed to be binding pronounce-
ments of law similar to the decisions of a court.” Bi-yce’s American Com-
monwealth, IL, 48, 49.

‘ Cassell’s Practice of the Supreme Court of Canada, p. 4. The latest
case of reference to the judges was one of a serious controversy between the
government of Manitoba and the Canadian Pacific Railroad, which refused
permission to 8. Manitoba railroad to cross its track; but this case was re-
ferred nndcr section 99 of the Railway Act (57 Vict., c. 29, 1888). The
question of the validity of the Liquor License Act was referred under sec.
26 of 3 special net, 47 Vict., c. 32.

’ Bourinovfs Purl. Practice in Canada, pp. 6064507.

68 Federal Government in Gamda. [524
court for the disposal of controversies that arise in the work-
ing of the constitutional system of Canada. So far its
decisions have won respect in Canada, and have been rarely
overruled by the judicial committee of the privy council,
which, by virtue of Her Majesty’s royal prerogative, enter-
tains appeals from the court where it is considered that any
error of law has been made, and substantial interests have
been involved.‘

As I have in the first paragraph of this lecture referred to
the importance of this appeal to the privy council, it is not
necessary that I should dwell here on the subject.

I have now shown you the leading features of the constitu-
tional relations that exist between the dominion and the pro-
vinces, and have stated some of the principles, as I understand
them, that should gnidetlie construction of the fundamental char-
ter under which each authority acts. In other lectures, I shall
review the duties and functions of the executive, administra-
tive and parliamentary bodies by which the federal system is
governed ; but there are a few other points that properly fall
within the scope of this lecture. First of all, and the most
important in many ways, are the methods that the constitution
provides for meeting the financial necessities of the dominion
and of the provinces. The ninety—second section shows that
the dominion parliament can raise money by any mode or sys-
tem of taxation, borrow money on the public credit, issue
paper money and regulate trade and commerce. Revenue is

1 See Sec. 71 of Supreme Court Act, which after setting forth that the judg-
ment of the court shall be final, adds the proviso, “ saving any right which
Her Majesty may be graciously pleased to exercise by virtue of her royal
prerogative. But by an act passed by the Canadian parliament in 1888,
(51 Viet., c. 43) it is provided that “notwithstanding any royal prerogative”
no appeal shall be brought in any criminal case from any judgment or
order of any court in Canada to any court of appeal in the United King-
dom. Exception was, I understand, taken to this act by the imperial author-
ities, but it does not appear to have been disallowed. This strong assertion
of judicial independence rests on the powers given to the Cuna-
dian parliament by sections 91 (sub-s. 27) and 101 of B. N . A. Act, 1867.

525] Federal Govemmevzt in Canada. 69

accordingly raised principally from duties imposed on imports,
and on certain articles, chiefly tobacco and liquors, manufac-
tured in the dominion, and in addition to these there are cer—
tain minor revenues collected from the sale of lands in the
north—west territories, over which the dominion government
has exclusive control. All these moneys are paid into the
treasury, and form what is known in law as “the Consolidated
Revenue Fund of Canada,” out of which are paid all the costs,
charges and expenses incident to the collection and manage—
ment of this fund, and all the expenses of government.‘

‘B. N. A. Act, 1867, see‘ 102. All duties and revenues over which the
respective legislatures of Canada, Nova Scotia and New Brunswick before
and at the union had and have power of appropriation, except such por-
tions thereof as are by this act reserved to the respective legislatures of the
provinces, or are raised by them in accordance with the special poweis con-
ferred 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 permanently
charged with the costs, charges and expenses 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

104. The annual interest of the public debts of the several provinces of
Canada, Nova Scotiukand New Brunswick at the union shall form the second
charge on the consolidated revenue fund of Canada.

105. Unless altered by the parliament of Canada, the salary of the gov-
ernor-general shall be ten thousand pounds sterling 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.

106. Subject to the several payments by this not charged on the consoli-
dated revenue fund of Canada, the same shall be appropriated by the par-
liament of Canada for the public service.

107. All stocks, cash, bankers’ balances, and securities for money belong~
ing to each province at the time of the union, except as in this act i:nen~
tinned, shall he the property of Canada, and shall be taken in reduction of
the amount of the rmpective debts of the provinces at the union.

108. The public works and property of each province enumerated in the
third schedule to this act shall he the property of Canada.

70 Federal Gooerrmwruf in Canada. [526

These moneys are, in every instance, voted by parliament,
but while certain sums are authorized annually by the appro-
priation act-—whieh comprises the annual grants voted every
session in supply—otl1er payments are made under the sanc-
tion of statutes. These statutes, which are permanent and can
only be repealed or amended by act of parliament, provide
for salaries of the governongeneral, lieutenant—governors,
ministers of the crown, judges, and other high functionaries,

109. All lands, mines, minerals and royalties belonging to 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 Scctia, 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 pro-
vince in the same.

110. All assets connected with such portions of the public debt of each
province as are assumed by that province, shall belong to that province.

111. Canada shall be liable for the debts and liabilities of each province
existing at the union.

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 Live per centnm per annum thereon.

113. The assets enumerated in the fourth schedule to this act, belonging
at the union to the province of Canada, shall be the property of Ontario
and Quebec conjointly.

114-, Nova. Scotin. shall be liable to Canada for the amount (if any) by
which its public debt exceeds at the union eight million dollars, and shall
be charged with the interest at the rate of five per centum per annum

115. New Brunswick shall be liable to Canada for the amount (if any) by
which its public debt exceeds at the union seven million dollars, and shall
be charged with interest at the rate of five per ccutum per annum thereon.

116. In case the public debts of Nova Scotin and New Brunswick do not
at the union amount to eight million and seven million dollars respectively,
they shall respectively receive, by hnlflycarly payments in advance from
the government of Canada interest at five per oeutum per annum on the
difference between the actual amounts of their respective debts and such
stipulated amounts.

117. The several provinces shall retain all their respective public pro-
perty not otherwise disposed of in this act, subject to the right of Canudato

527] Federal Government in Canada. 71
whose remuneration it is understood should not depend on
the annual votes. All moneys are paid out of the treasury
under certain forms required by statute, and a thorough sys~
tem of audit prevents any public expenditure not authorized
by parliament, although the law permits the issue of governor-
general’s Warrants in certain cases of emergency, but these,
too, must at the fir-st opportunity he laid before, and be sanc-
tioned by parliament, Large sums are, at times, borrowed on

assume any lands or public property required for fortifications or for the
defence of the country.

118. The following sums shall be paid yearly by Canada to the several
provinces for the support of their governments and legislatures:

Ontario – ~ – – – – — Eighty thousand.
Quebec — — » – – – Seventy thousand.
Nova Scotia ~ – – – – — Sixty thousand.
New Brunswick – 7 – – – ~ Fifty thousand.

Two hundred and sixty thousand ;

and an annual grant in aid of each province shall be made, equal to eighty
cents per head of the population as ascertained by the census of one thou-
sand 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 grants shall thereafter remain. Such grants shall be in full
sciztlernent 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, 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 hulf-yearly.pzxymenis 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 deduc-
tion equal to the interest at five per oentum per nnnum on such deficiency
shall he made from that allowance of sixty-three thousand dollars.

120. All paymentsbo be made under this act, or in discharge of liabilities
created under any act of the provinces of Canada, Nova Scotia. und New
Brunswick respectively, and assumed by Canwcla, shall, until the parlia»
ment of Canada otherwise directs, be made in such form and manner as may
from time to time he ordered by the govcrnor»genera1 in council.

72 Federal Gouemmmzt in C’axnada.. [528

the public credit, under the conditions laid down by parlia-
ment, in order to meet the heavy expenditures required for the
extensive system of public works in which the dominion is
engaged. The treasury also issues a number of notes, of which
the sum of four dollars is the highest denomination——the
banks of Canada being banks of issue for large sums within
fixed limits-but the dominion issue in any one year may not
exceed four million dollars, and the total amount issued and
outstanding, at any time, may not exceed twenty millions,
secured for redemption by gold and Canadian guaranteed

121. All articles of the growth, produce or manufacture of any one of the
provinces shall, from and after the union, be admitterl free into each of the
other provinces.

122. The customs and excise laws of each province shall, subject to the
provisions of this act, continue in force until altered by the parliament of

123. Where customs duties are, at the union, leviahle on any goods,
Wares or merchandises in any two provinces, those goods, wares and mer-
chsndises may, from and after the union, 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 leviahle thereon in the
province of importation.

124. Nothing in this act. shall affect the right of New Brunswick to levy
the lumber dues provided in chapter fifteen 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 dues. –

125. No lands or property belonging to Canada or any province shall be
liable to taxation.

126. Such portions of the duties and revenues over which the respective
lcgislatura of Canada, Nova Scotia and New Brunswick had before the
union, power of appropriation, as are by this act reserved to the respective
governments or legislatures 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.

’ Can. Rev. Stat, chaps. 28, 29, 30, 31, 32, 33, etc.

529] Federal G’m)e7″/Lmemt in Canada. 73

As respects the provinces, their revenues arise from the
proceeds of royalties from mines (chiefly valuable in Nova
Scotia), the sales of Crown lands and minerals, and the subsi-
dies granted by authority of the British North America Act
for the purposes of enabling them to carry on their govern-
ment. The nincty—seccnd section authorizes the legislatures
to impose direct taxation on the province in order to raise a
revenue for provincial purposes, to borrow money on the sole
credit of the province, and to raise money from shop, saloon,
tavern and auctioneer licenses, in order to the raising of a rev»
enue for provincial, local, or municipal purposes. When the
Quebec convention sat this question of provincial revenue was
one that gave the delegates the greatest difficulty. In all the
provinces the sources of revenue were chiefly customs and
excise duties which had to be set apart for the general govern-
ment. Some of the delegates from Ontario, where there had
been for many years an admirable system of municipal gov-
ernment in existence which provided funds for education and
local imp1’ovcn1euts, saw many advantages in direct taxation ;
but the representatives of the other provinces could not con-
sent to such a proposition, especially in the case of Nova
Sootia, New Brunswick and Prince Edward Island, where
there was no municipal system, and the people depended al-
most exclusively on the annual grants of the legislature for
the means to meet their local necessities.‘ All of the delegates,
in fact, felt that to force the provinces to resort to direct tax-
ation as the only method of carrying on their government,
would be probably fatal to the success of the scheme, and it
was finally decided to grant annual subsidies, based on popu-
lation, the relative debts, the financial position, and such other
facts as should be brought fairly into the consideration of the
case. These financial arrangements were incorporated with
the not of union,” and necessarily entail a heavy expense

‘See speech of Hon. George Brown, Confederation Debates, 1865, p. 92.
‘Sec Can. Rev. Stat, c. 46.


74 Federal G<7uo-rnme’/of in Canada. [530

annually on the exehequer of the dominion. In consequence
of the demand that arose in Nova Seotia for “better terms,”
previous to and after the union, the parliament of the domin-
ion, in the session of 1869, legislated so as to meet the diffi—
culty that had arisen, and it was accordingly decided to grant
additional allowances to the provinces, calculated on increased
amounts of debt as compared with what they were allowed to
enter the union.‘

Manitoba, British Columbia, and Prince Edward Island
also obtained similar annual subsidies in accordance with the
general basis laid down in the constitution. It is from these
subsidies that the provinces derive the greater part of their
annual revenues. Ontario is in the most favorable posi-
tion from the very considerable revenue raised from lands
and timber dues. The provinces are also at times hor-
roweis en the money market, especially Quebec, in order to
meet pressing liabilities. In the maritime provinces a system
of municipal institutions, except in Prince Edward Island, has
been at last adopted, and the local treasury in a measure
relieved; but still on account of the lavish expenditure, at
times considered necessary by the legislature, there is too often
a complaint that the local funds are insuflieient for general

From this necessarily meagre summary of the financial
methods by which the dominion and the provinces meet the
large expense required for public purposes, it will be seen that
there is an intimate connection between the governments that
does not exist in the American union, where each state meets
all its local requirements by direct taxation and is not depen-
dent on the federal authority.

The Wisdom of this policy has been more than once ques-
tioned sinee the union has been working itself out. As a large
portion of their revenues~-in certain cases the largest portion
——is not derived from local sources, there has not been always,

7 See Can. Rev. Stat, c. 46.

531] Federal Govemment in Canada. 75

it is believed, that effort for economical expenditure that would
probably have been made if all the funds were raised from
local sources, and from direct taxation as in the United States.
The consequence already has been that demands have been
made from time to time, on the dominion treasury for the sub-
sidizing of railway and other schemes, which are really
provincial undertakings, and which are assisted as a means of
relieving the local treasury and satisfying the representatives
from that section. Each province should he, as far as possi-
ble, in a position of local independence, and free from suspicion
of political pressure on the central government at critical

The federal government executes its postal and revenue
services through its own ofiiccrs; but, unlike the United
States, it has no courts of its own in the provinces for federal
objects. Still the result is practically the same, for it can use
the whole system of the administration of justice should it be
necessary to resort to it. The dozninion government can
claim the allegiance of the people of the Whole country to
assist it in working out cfficiently and securing those great
national interests, of which it is the guardian under the con-
stitution. It has the control of the militia, and can protect
the existence of the dominion, and repress rebellion as in the
case of the unfortunate disturbances in the north—wcstin 1886.
The government of Canada has a quasi national character, and
is bound to maintain by all the means that the constitution
gives it the union into which the provinces freely entered in
1867. On the other hand, the province in many respects
touches more nearly the civil and the political side of the
people Within its limits than the central authority with its
more general or national attributes of power. The cxaction
of indirect taxation does not come home immediately to all
classes in every day life like the tax collector who presents
himself under the municipal system in Vogue in the provinces.
Comfort and convenience, liberty and life, civil rights and
property, endless matters that daily allect a. community are

76 Federal Govemmmt in Ctmada. [532

directly within the jurisdiction of the provincial organisms.
If the dominion should cease to—n1orrow to exercise its consti-
tutional powers, the province would still remainmfor it existed
before the union—and its local organization could very soon
be extended to embrace those powers which now belong to the
central authority. ‘

The federal structure, whatever may be its defects and weak-
nesses in certain details, on the whole seems well adapted to
meet the wants and l’1eO(1SSll’:l9S of the people. From the foun-
dation to the crowning apex it has many attributes of har-
mony and strength. It is framed on principles which, as
tested by British and American experience, are calculated to
assist national development and give full liberty to local insti—
tutions. At the bottom of the edifice are those parish, town~
ship, county and municipal institutions which are eminently
favorable to popular freedom and local improvement. Then
comes the more important provincial organization, divided
into those executive, legislative and judicial authorities, which
are essential to the working of all provincial constitutions.
Next conies the central government, which assumes a national
dignity and affords a guarantee of protection, unity and secu-
rity to the whole system.

The apex of the structure is the imperial power—in other
words, the Sovereign who holds her exalted position, not by
the caprice of 3. popular vote, but with all the guarantees of
permanency with which the British constitution surrounds the


Sir Henry Maine, in common with other eminent writers
on government, has dwelt on the fact that the framers of the
existing Federal Union of the United States regarded the
opinions expressed by Montesquieu in the Esprit des Lois as
of paramount importance, and that none had more weight with
the writers of the Federalist, that admirable series of commen-
taries on the constitution, than that which affirmed the essen-
tial separation of the executive, legislative and judicial powers.
The lines accordingly that separate these respective depart-
ments are drawn with remarkable distinctness in the American
system. Their obj eot was to impose every possible check upon
the several agencies of government, so that one could not com-
bine with the other, to the injury of the third. In the Cana-
dian as in all other systems that derive their origin from
England, this same wise principle is carefully carried out,
though not to the same extent as in the United States. The
judiciary has been wisely kept entirely distinct from all other
authoritias since 1841, and it is now impossible for the judges
to sit in the legislative and executive councils and exercise a
direct influence in political aifairs. In the case of the execu-
tive, however, as I shall show later on, there is a direct con-
nection between it and the legislative department, which in
many respects operates in the direction of good government
and efficient legislation. ‘

As I have already shown in a previous lecture the head of
the executive authority is the Queen, who is represented by


78 Federal Government in Canada. [534

the governor—general advised bya, privy council.‘ The gover-
nor—general as the acting head of the executive of Canada,
assembles, prorogues and dissolves parliament and assents to
or reserves bills in the name of her majesty; but, in the dis-
charge of these and all other executive duties which are Within
the limits of his commission, and in conformity with the con—
stitution, he acts entirely by and with the advice of his
council who must always have the support of the house of
commons. Even in matteis of imperial interest affecting
Canada, he consults with the council and submits their views
to the colonial secretary of state in England. On Canadian
questions clearly within the constitutional jurisdiction of the
dominion he cannot act apart from his advisers, but is bound
by their advice. Should he differ from them on some vital
question of principle or policy he must either recede from
his own position or be prepared to accept the great responsi~

1 B. N. A. Act, 1867, see. 10‘ The provisions of this act referring to the
governor~genore.l extend and apply to the governor-general for the time
being of Canada, or other the chief executive ofiicer or administrator for
the time being carrying on the government of Canada. on behalf and in the
name of the Queen, by whatever title he is designated.

‘ 11. There shall be 27. council to aid and advise the government of Canada,
to he styled the Qucen’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 by the governor-

l2. All powers, authorities and functions which, under any 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 Upper Canada, Lower
Canada, Canada, Nova Seotia or New Brunswick, are at the union vested
in or exercisable by the respective governors or lieutenant~governors of
those provinces, with the advice, or with the advice and consent, of the
rapcclivc executive councils thereof, or in conjunction with those councils,
or with any number of members thereof, or by those governors or lieuten~
ant-governors individimlly, shall, as far as the same continue in existence
and capable of being exercised after the union in relation to the govern-
ment 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

K, _______ W

535] Federal Government in Cimada. 79‘

bility of dismissing them ; but such an alternative is an
extreme exercise of authority and not in consonance with
the sound constitutional practice of modern times, should his
advisers have a majority in the popular branch of the legisla-
ture. Should he, however, feel compelled to resort to this
extreme exercise of the royal prerogative, he must be prepared
to find another body of advisers, ready to assume the full
responsibility of his action and justify it before the house and
country. For every act of the crown, in Canada as in England,
there must be some one immediately responsible, apart from
the crown itself. But a governor, like any other subject, can-
not be “freed from the personal responsibility for his acts
nor be allowed to excuse a Violation of the law on the plea of
having followed the counsels of evil advisers.” 1 Cases
may arise when the govern0r—general will hesitate to come to
a speedy conclusion on a matter involving important conse-
quences, and then it is quite legitimate for him to seek advice

Q,ueen’s privy council for Canada, or any members thereof, or by the gov-
ernor-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.

13. The provisions of this act referring to the governor-general in coun-
cil shall be construed as referring to the governor-general acting by and
with the advice of the Queen’s privy council for Canada.

14. It shall be lawful for the Queen, if her majesty thinks fit, to author-
ize the governor-general from time to time to appoint any person or
any persons jointly or severally to be his deputy or deputies within any
part or parts of Canada, and in that capacity to exercise during the pleasure
of the goverriongenerul such of the powers, authorities and functions of the
governor-general as the governor-general deems it necessary or expedient to
assign to him or them, subject to any lirnitations 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.

15. The command-in-chief of the land and naval militia, and of all naval
and military forces, of and in Canada, is hereby declared to continue and
be vested in the Queen.

1 Hearn’s Government of England, p. 133.

80 Federal G‘ove1~nment in C’a//uzda. [536

from his official chief, the secretary of state for the colonies,
even if it be a matter not immediately involving imperial
interests. For instance, when a question arose in 1879
whether the govemor—gene1‘al ought to follow the advice of his
council and dismiss the lieutenant-governor of Quebec, Lord
Lorne, at the suggestion of the premier, referred the whole
matter to her majesty’s government for its consideration and
instructions, as it involved important questions connected with
the relations between the dominion and the local governments
as well as the proper construction to be put on the constitu-
tion.‘ This case, however, shows that the government of
England, in accordance with their fixed policy, will 1‘el’ruin
from expressing any opinion upon the merits of a case of a
purely Canadian interest, and will not interfere with the exer-
cise of the undoubted powers conferred upon the governor-
gcneral by the British North America Act, for determining
the some. Indeed we may even go further and say that the
effect of the advice of the imperial government in this partic-

‘ I refer here to a remarkable episode in the political history of Canada,
(1878-1879) in which We find abundant evidence of the bitterness of party
conflict in Canada. M. Lctcllicr dc St. Just was appointed lieutenant-gow
emor of Quebec by 21. Liberal administration at Ottawa, and thought proper
to dismiss his executive council, though it had a large majority in the leg-
islature. The constitutionality of his action was at once sharply attacked
in the dominion parliament by the Oonservative party which was politi-
cally identifier] with the dismissed ministers, but it was only in the senate
where it. had a majority that a. resolution was passed censuring him for am
act emphatically declared to be at variance with the principles of responsi-
ble government. The Conservatives soon afterwards came into power and 9.
similar resolution was again proposed and passed by a very large majority.
The government, who haul not up to that time, thought it incumbent on
them to assume any responsibility under section 59 of B. N. A. Act which
gave them the power of dismissal, then recommended to Lord Lorne that
the lieutenant-governor be dismissed; but the governongeuerzil, as stated in
the text, hesitated to accept the advice and preferred to ask instructions from
the imperial authorities. In consequence of their answer, he had no other
alternative than to consent to the removal of M. Letellier on the ground as
set forth in the order in council, that his usefulness was gone. The cause
assigned had not quite the merit of novelty, for similar language had been

537] Federal Government in Canada. 81 .
ular matter must be to restrain within very narrow limits the
occasions when a governor will hereafter hesitate to accept the
advice of his constitutional advisers, and refer to England a
question which is clearly among the povvers belonging to the
Canadian gove1‘nn’.ient. In matters affecting imp_ei’ial interests,
of course the governor—general is not confined by any such
limitation ; but it is impossible to lay down any rule available
for such emergencies. The truth is, as it has been well ob-
served by a Canadian statesman and constitutionalistl whose
opinions are deserving of the highest possible respect, “ that
imperial interests are, under our present system of government,
to be secured in matters of Canadian executive policy, not by
any clause in a governor’s instructions (which would be prac-
tically inoperative, and if it can be supposed to be operative
would be mischievous), but by mutual good feeling and by
proper consideration for imperial interests on the part of her
n1ajesty’s Canadian advisers ; the crown necessarily retaining
all its constitutional rights and powers which would be exer-
cisable in any emergency in which the indicated securities

used in the case of Governor Darling who was dismissed from the governor-
ship of Victoria by the imperial government because he “had placed him~

. self in a position of personal antagonism towards almost all those whose

antecedents pointed them out as most likely to be available in case of a
change of ministry.” Governor Darlings mistake, however, was not in dis-
Iuilwing his ministry, but in yielding to its pressure and consenting to the
clearly unconstitutional course of sanctioning the levy of duties on a mere
resolution of the assembly at the time in antagonism to the council. (See
Eng-l. Commons I’a.p., 1866, vol. L., p. 695.) M. Letellier, it may be
added, obtained the enwistanoe of a new council, which assumed the respon-
sibility of his acts, and appealed to the people, who sustained them by a
bare majority, which soon disappeared, until the party with which Mr.
Letellier had brought himself into confiict came again into ofiiee, but not
Until after he had been dismissed. The consequences of this afi’ai_r were
serious, not only in creating a violent agitation for 3 long while but in the
eflbct upon the unfortunate principal actor, who felt; his position moot
keenly, and soon afierwartls died.

‘ The Hon. Edward Blake in 2:. dispatch to the Secretary of State, Can.
Seas. P. 1887, xo.13.

82 Federal Government in Canada. [538 _

might be found tofail.” The oflicial communications between
the imperial government and the g0Vei’nor—gencra1 that have
been printed since 1867 and indeed from the days of Lord
Elgin, show two things very clearly : First, that the governors-
general new fully recognize the obligation resting upon them
of following in their entirety the principles of English consti-
tutional government in all their relations with their cabinet
affecting matteis within its functions and authority ; secondly,
that the imperial government never intrude their instructions
on the governor~general in such niatters, and while they do
not directly deprecate a reference to them for advice respecting
questions even within Canadian jurisdiction, yet they do not
encourage it but prefer that Canadians should settle all such
questions for themselves, as the logical sequence of a very
complete system of local government long since granted to the
dominion by the parent state.

It will , therefore, be evident that power is practically vested
in the ministry and that the governor-general, unless he has
to deal with imperial questions, can constitutionally perform
no executive function except under the responsibility of that
ministry. The royal prerogative of mercy is no longer excr-
cised on his own judgment and responsibility, but is adminis-
tered as it is in England, pursuant to the advice of the min-

istry.‘ With respect to the allowance or disallowance of ‘

provincial acts, ever since the coming into force of the British
North America Act-, the gover11or—general “has invariably
decided on the advice of his ministers and has never asserted
a right to decide otherwise. He has been always con-
tent to exercise this prerogative under the same constitu-
tional limitations and restraints which apply to all other
acts of executive authority in a constitutional government.” 2

1 In the resolutions of the Quebec convention, the prerogative of pardon
was to be exercised by the lieutcnzuit-governors of the provinces; hut in
the British North America. Act this important power is entrusted only to
the govcr-nor—gcnera1 as the direct representative of the Queen.

’ Todd’s Purl. Gov’t. of the Colonies, p. 342.

539] Federal Government in Oamzda. 83
Even in the exercise of the all important prerogative of
dissolution, which essentially rests in the Crown, he acts on
the advice of his advisers, and it is obvious from many exam-
ples in the recent political history of Canada he does not
hesitate to follow that advice as a rule.’ Of course it may
be said that the more frequent are the opportunities given
to the people to express their opinions on the policy of a
government, the greater is the security granted to popular
liberty, and the more likely is parliament to represent public
sentiment. In 1882 parliament had been only four years in
session and Lord Lorne accepted the advice of his council to
dissolve parliznnent, but there were certainly good reasons for
such a course at that time, since there had been a readjust-
ment in the representation of the House, as a consequence of
the new census taken in 1881, and the national or protective
policy had been less than three years in operation and the car-
liest opportunity should be given to obtain thereon the verdict
of the people. The difficulties that surround a governor-~gcn—
eral in such cases, when there is a powerful party in power,
are very obvious, especially when we consider that he is hardly
likely to meet with support from his official superiors in Eng-
land in a matter which they would consider of purely Cana-
dian importance. Such facts obviously are the natural outcome
of parliamentary government, though, in the opinion of some
thoughtful publicists, they raise the question whether a gov-
ernor—general, as well as the sovereign whom he represents,
might not be called upon in some cases to refuse to be bound

‘ Doubt has been cast upon the constitutional propriety of the course pur-
sued in 1887, when the governongcneral allowed the premier to appeal to
the people, though parliament had only held four sessions and had not
completed its constitutional existence of five years from the date of the
return of the writs in 1882. The government of the day had :1. large ma-
jority in the popular branch. I cite this case simply to_illust.mte the eirtcnt
to which the governor-general, as ewtute as he was able, thought himself
constitutionally bound to follow the advice of his ministry in View of all
the reasons submitted to him, and of which, no doubt, we have not yet full

84 Federal Government in Canada. [540

by such advice, and to consider whether it is party ambition
or the public interest that is at stake. I need, however, hardly
add that the representative of the crown must be prepared to
see his action in such a grave exercise of the prerogative fully
justified by another set of advisers in case he finds himself in
irreconcilable confliot with those who give him advice which
he cannot bring himself to follow after a thorough considera-
tion of all the facts as they have been presented to him. Hap-
pily the relations that exist between the Queen’s representa~
tive and her council are not likely to be strained while both
fully appreciate their respective functions and follow those
principles of action which experience and usage have shown
to be necessary to prevent undue friction and difliculty. It is
the duty of the council, through their premier, to instruct the
governor—general thoroughly on all questions that are matters
of executive action, and to keep him informed on any matter
that should properly come under his cognizance. Mutual
consultation can do everything to bring councillors of the
crown into perfect harmony with their constitutional head ;
and the circumstances must be very peculiar and extraordinary
indeed when a conflict can arise between these authorities that
is not susceptible of an amicable arrangement at last.
Occupying a position of unswerving neutrality between
opposing political parties, and having no possible object in
view except to subservc the usefulness and dignity of his high
ofiioe, the governongeneral must necessarily, in the discharge
of his important functions, have many opportunities of pro-
moting the interests of the country over whose government he
presides. While he continues to be drawn from the ranks of
distinguished Englishmen, he evokes respect as a link of con-
nection between the parent state and its dependency. In the
performance of his social duties he is brought into Contact
with all shades of opinion and wields an influence that may
elevate social life. and soften the aspcrities of public contro-
versy by bringing public men to meet on a neutral ground
and under conditions which win their respect. In the tours

541] Federal Governmni in (Xanadu. 85

he takes from time to time throughout the wide territories of
the dominion he is able to make himself acquainted with all
classes and interests, and by the information he gathers in this
way of the resources of the country he can make himself an
important agent in the development of Canada.‘ In the en-
couragement of science, art and literature he has also a fruitful
field in which he may perform invaluable service that would
not be possible for anyone who does not occupy so exalted a
position in the country?

The British North America Act of 1867 provides that the
council, which aids and advises the governor-—general, shall be
styled the“queen’s privy council. for Canada.” 5 Here we have
one of the many illustrations that the constitutional system of
the dominion oifers of the etibrts of its authors to perpetuate
as far as possible in this country the names and attributes of
the ti1ne—l1onorcd institutions of England. The privy council
of Canada recalls that ancient council whose history is always
associated with that of the king as far back as the earliest days
of which we have authentic record. Sometimes it was known
as the (mica re_<;’£a. or the curia regis, which possessed ill-defined
but certainly large legislative and judicial as well as executive
powers; but its principal duty, it is clear, was to act as an
advisory body according as the king might wish its counsel.
At all times in English history there appears to have been a
council near the king who could assist him with their advice
and be made responsible for his acts.‘ Too often it became

‘Lord Dufi’erin’s public speeches during his administration in Canada.
direcbed large attention in Europe to the re1.narl

1 During the régime of the Marquis of Lorne and H. R. H. the Princess
Louise, the royal academy of arts and the royal society of Canada were
established on a successful basis.

’ The executive council of the little slate of Delaware was originally called
the privy eouncil——the only example we have of such 9. title in the old
colonies. ‘

4 “It is our good fortune to be the inheritors of institutions in which the
spirit of freedom was enshrined and to have had forefathers who knew how
to defend them. The king of England was a rat polflicu, a political crea-

86 _Fede’mZ Government in Canada. [542

the unscrupulous instrument of the sovereign, and by the time
of Elizabeth it had practically superseded the parliament,
except when money had to be raised by the taxation of the
people. But with the end of the Tudor dynasty, its power
began to wane and the parliament increased in strength and
influence. The Stuarts made use of it to establish a secret
star chamber to usurp the functions of the courts, and we hear
later of the formation of a committee called enviously a cabal
or cabinet, on account of the king finding it convenient from
time to time to have a small body of advisers on whose ability
to serve him he could have every confidence, and in whose
deliberations he could find that secrecy which would not have
been possible in the consultations of the privy council as a
whole. In the course of the various changes that have oc-
curred in English constitutional history its judicial functions
disappeared and now only survive in the judicial committee,
while it has been practically denuded of all foriner executive
functions, and exists only as a purely honorary and dig-
nified body. The cabinet council—a name originating in the
days of Charles I—-is now the great executive and adminis-
trative council of state, though in no other respect does it
rcsemblc that irresponsible creation of the Stuart king. Still
the cabinet which is the governing power of the ministry of
modern times, is a name unknown to the law. The privy
council is the only body legally recognized, and on the for-
mation of a new ministry it is usual to inform the public
simply that her majesty has been pleased to appoint certain
members of the privy council to certain high offices of state.
The cabinet, or inner council, is only 2: portion of the ministry

tion, the highest functionary and servant of the state, not a. merely personal
ruler, and that was his recognized capacity. In the next place, from early
times, earlier than the beginning of regular parliaments, the people of
England held a firm hold on the idea. of ministerial responsibility. They
acted upon it fitfnlly and sometimes capriciously, but they never let it go.
If the king ruled ill, it was bcmuse he had had advisers.” Coutemponiry
Review, January, 1889, p. 53.

543] Federal Government in Canada. 87

and varies in numbers according to the exigencies of state.
This ministry is drawn from members of the two houses of
parliament, chiefly from the house of commons, and their
tenure of oifice depends upon their having and retaining the
confidence of 21 majority of the people’s house, in accordance
with the principles of parliamentary government, which were
first roughly laid down after the revolution of 1688, though
it took very many years before the present system of ministe-
rial responsibility reached its present perfection.

The terms, “cabinet,” “ministry,” “administration” and
“government,” are indiflerently applied to the privy council
of Canada ; for there is not in this country a select cabinet as
in the parent state. Privy councillors, when not in the gov-
ernment, retain their honorary rank, but it is simply one that
entitles them to certain precedence on state occasions and has
no omeial responsibility or meaning. When the governor~
general appoints a body of advisers to assist him in the
government he calls them to be members of the privy council
and to hold certain oilices of state. It sometimes happens,
however, that ministers are appointed without a portfolio or
department, and two representatives of the government in the
senate are in that position at the present time. The number
of members of the ministry or privy council in office vary
from thirppen tc} fifteen of whom tlpirifinipre heads of depart-
ments, w ose unctions are rcgu at y statute. One of
these oflicers, however, is president of the privy council, who
has practically no departmental duties, but it is a position
which the premier, as it happens at the present time, may Well
occupy in view of his large political responsibilitiesasthe head
of the government. ‘While holding this virtually honorary
oihee, he is often called upon to act for ministers who are ill
or absent from the country, and it is found convenient to con-
nect with it the charge of the virtually subordixiate department
of Indian affairs.‘ The other ministers with portfolios are the

‘Sir John Macdonald was president of the council and superintendent
general {of Indian afihirs, an olfice generally held by the minister of the

88 Federal Govemment in Cttnada. [544

minister of finance, minister of public works, minister of rail—
ways and canals, minister of the interior, postmaster—general,
minister of justice, secretary of state, minister of inland reve-
nue, minister of customs, minister of militia, minister of
marine and fisheries, and minister of agriculture. When we
consider the population of Canada and its position as a colo—
nial dependency this ministry of thirteen departments (exelu—
sive of the two at present without portfolios) seems extremely
large compared with the government of the United States or
of England itself’. At the inception of confederation it was
considered advisable to have all sections of the confederation
fully represented, and the practice has ever since been to
maintain the proportion from the maritime provinces, Ontario
and Quebec. In 1889 the exceptional position of the north-
West was for the first time considered by appointing the ex-
lieutenant-governor of the territories to the office of minister of
the interior, who has special charge of‘ the aii”airs of that wide
region. It has been sometimes urged that it would have been
wise had it been possible in 1867 to follow the English prac-
tice and appoint a certain number of political under-secretaries
with seats in the lower house. In this way the necessity for
so large a cabinet might have been obviated, and an opportu-
nity given to train men for a higher position in the councils of’
the country. A step was taken in this direction in 1887 but
the law so far has remained a dead letter on the statute book.‘

As the members of a cabinet only occupy office while they
retain the confidence of the lower house, the majority necessa-
rily sit in that body, though there is always a certain repre-
sentation (two at the present time) in the upper branch. Since
the commons hold the purse strings, and directly represent the
people, all the most important departments, especially of
finance and revenue, must necessarily be represented in that

interior. He acted also for Mr. Pope, minister of railways, while suffering
from illnesz ending in death during the past session of parliament.
‘Remarks of Sir John Maedomilcl, Can. Hansard, 1887, pp. 862, 863.

lunar»; «

545] , Federal Govemment in Canada. 89

branch. The ministry, then, is practicallya committee of the
two houses. Its head is known as the premier or prime min-
ister, who, as the leader of a political party, and from his
commanding influence and ability, is in a position to lead the
house of commons and control the government of the country.
His title, however, is one unknown to the law, though bor-
rowed from the English political system. It originates from
the fact that he is first called upon by the sovereign (or in
Canada by her representative) to form a. ministry. The
moment he is entrusted with this high responsibility it is for
him to choose such members of his party as are likely to
bring strength to the government as a. political body, and
‘capacity to the administration of public ailairs. The gover-
nor—general on his recommendation appoints these men to the
ministry and the occasions that can arise when he may see
reasons for objecting to a particular nominee are so exceptional
—-indeed we have no case in our recent history—that we may
practically consider the choice of colleagues by the premier as
final and conclusive. As a rule, on all matters of public
policy the communications between the cabinet and governor
take place through the premier, its official head. If he dies
or resigns the cabinet is mt-Qfiicio dissolved, and the ministers
can only hold ofiice until a new premier is called to the public
councils by the representative of the crown. It is for the new
premier than to ask them to remain in oflice, or to accept their
resignation. In case a government is defeated in parliament,
the premier must either resign or else convince the governor.-
goneral that he is entitled to a dissolution on the ground that
the vote of censure does not represent the sentiment of the
country. This is one ofthe occasions when the governor—gen—
oral is called upon to exercise an impormnt prerogative of the
crown in circumstances of great delicacy ; but fortunately for
him the principles that have been laid down in the course of
many years in the working of the British system in England
and her dependencies can hardly fail to enable him, after a
full consideration of all the circumstances of the case before

90 Federal Government in C’a/mzdav. [546

him, to come to a conclusion that will satisfactorily meet the
exigeney. If the circumstances are such as to justify a disso-
lution of‘ parliament the premier must lose no time in obtain-
ing an expression of public opinion ; and should it he
apparently in his favor he must call parliament together with
as little delay as possible; or if, on the other hand, the public
sentiment should be unequivocally against him he should
resign 3 for this course has been followed in recent times both
in England and Canada. Strictly speaking, parliament alone
should decide the fate of the ministry, but the course in ques-
tion is obviously becoming one of the conventional rules of the
constitution likely to be followed whenever there is a decided
majority against an administration at the polls.

From what precedes it will therefore be seen that while
there is a constitutional separation between the executive and
legislative authorities, still it may be said that, in Canada as in
England, parliament governs through an executive dependent
on it. The queen is at once the head of the executive autho-
rity and the first branch of the legislative department. The
responsible part of the executive authority has a place in the
legislative department. It is a committee of the legislature,
nominally appointed by the qneen’s representative, but really
owing its position as a governmenff to the majority of the leg-
islative authority. This cxecutive dependence on the legis-
lature is an invaluable, in fact the fundamental principle of
parliamentary government. This council thereby becomes
responsible at once to crown and parliament for all questions
of public policy and of public administration. In a country
like ours legislation is the originating force and the representr
atives of the people are the proper ultimate authority in all
matters of government. The importance then of having the
executive authority represented in parliament and immediately
amenable to it is obvious. Parliament is in a position to con-
trol the administration of the executive authority by having
in its midst men who can explain and defend every act that
may be questioned, who can lead the house in all important

547] Federal Govewgmmt in Oamadcz. 91

matters of legislation,‘ and who can be censured or forced from
oifice when they do wrong or show themselves incapable of
conducting public affairs. By means of this check on the
executive, efliciency of government and guarantees for the
public welfare are secured beyond question. The people are
able, through their representatives, to bring their views and
opinions to bear on the executive immediately. Every branch
of the public service may be closely examined, every question-
able transaction sifted, and every information obtained, by the
methods of parliamentary inquiry, as ministers are present to
answer every question respecting the administration of their
departmenw and to justify and defend their public policy.
The value of this British system of parliamentary government
can be best understood by comparing it with the American
system which so completely separates the executive froni the
legislature. In the United States the President is irremova-
ble, except in case of a successful impeachment, for four years,
and he appoints his cabinet, who are simply heads of dcpart—
nients responsible to no one except himself. This cabinet may
be well compared in one respect to the cabinet councils of the
Stuarts, since like them its existence does not depend on the
confidence or support of the legislature. Its members have no
seats in either the senate or house of representatives and are
in no way responsible for, or exert any direct influence on
public legislation. A thoughtful American writer? comparing
the two systems, shows very clearly how inferior in many
respects it is to that of England or of Canada :——“ It is this

“‘It is therefore the executive government which should be credited
with the authorship of English legislation. We have thus an extraordi-
nary result. The nation whose constitutional practice suggested to Mon-
tesqnieu his memorable maxim concerning the executive, legislative and
judicial powers, has in the course of 11 century falsified it. The formal
executive is the true source of legislation; the formal legislature is inces-
santly concerned with executive government.” Sir H. Maine, Essay on
the Constitution of the United States, Quanorly Review, 1530. 313.

‘Congressional government. By Wootlrow Wilson.

92 Federal Govemwmt in Canada. [548

constant possibility of party diversity between the executive
and congress which so much complicates our system of gov-
ernment. Party government can exist only when the 211350»
lute control of administration, the appointment of its officers
as well as the direction of its means and policy, is given
immediately into the hands of that branch of government
whose power is paramount~—the representative body. . . .
At the same time it is quite evident that the means which
congress has of controlling the departments and of exercising
any searching oversight at which it aims are limited and
defective. Its intercourse with the president is restricted to
the executive messages, and its intercourse with the depart-
ments has no easier channels than private consultations between
executive oflicers and the committees, informal interviews of
the ministers with individual members of the congress, and
the written correspondence which the cabinet olfficers from
time‘ to time address to the presiding ofliccrs of the two
houses at stated intervals or in response to formal resolutions
of inquiry. Congress stands almost helpless outside of the
departments.” 1

‘Professor Bryce (The American Commonwealth, 1., p. 304) expresses
the same opinion after a. thorough study of the imperfections and weak-
nesses of the American system: “In their efibrls to establish 3 balance of
power, the framers of the constitution so far succeeded that neither power
has subjected the other. But they nuclei-mted the inconveniences which
arise from the disjunction of the two chief organs of government. They 1-e«
Iicved the adininistrntiou from a duty which European ministers find exhaus-
ting and hard to reconcile with the proper performance of administrative
Work,—the duty of giving attendance in the legislature and taking the lead
in its debates. They secured continuity of executive policy for four years
at least, instead of leaving government at the mercy of flnctuating majori-
ties in an excitable assembly. But they so narrowed the sphere of the
executive as to prevent it from leading the country, or even its own party
in the country. They sought to make members of congress independent,
but in so doing they deprived them of some of the means which European
legislatures enjoy of learning liowto administer, of learning even how to
legislate on administrative topics. They condemned them to be architects
without science, eritits without experience, censors without responsibility.”
See also De Tocqueville, 1., p. 124.

549] Federal Go-vemment in Canada. 93
I have so far briefly explained some of the constitutional
duties anal responsibilities that rest upon the head of the exec-
utive and his advisers, and must now proceed to review the
nature of the functions of the senate and house of commons,
Who, with the queen, constitute the parliament of Canada.‘


‘B. N. A. Act, 1867, sec. 17. There shall he one parliament for Canada,
consisting of the queen, an upper house styled the senate, and the house of

18. The privileges, immunities and powers to beheld, enioyed and exer-
cised 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, immunities and powers shall not confer any privi-
leges, 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.

19. The parliament of Canada shall he called together not later than six
months after the union.

20. There shall be it session of the parliament of Canada once at least in
every year, so that twelve months shall not intervene between the last sit-
ting of the parliament in one session and its first sitting in the next session.

The Senate.

21. The senate shall, subject to ‘(he provisions of this act, consist of sevv
enty-two members, who shall be styled senators.

22. In relation to the constitution of the senate, Canada shall be deemed
to consist of three divisions-«

14 Ontario;

2. Quebec;

3. The Mnritirne Provinces, Nova Scolia and New Brunswick; which
three divisions shall (subject to the provisions of this act) be equally rep-
resented in the senate as follows : Ontario by twentj/~four senators; Quebec
by twent_v-four senators; and the ltfnritiine Provinces by twenty-four sena~
tors——twelvc thereof representing Nova. Scolia, and twelve thereof repre-
senting New Brunswick.

In the case of Quebec each of the twenty-four senators representing that
province shall be appointed for one of twenty-four electoral divisions of
Lower Canada specified in schedule A to chapter one of consolidated stat~
utes of Canada.

23. The qualifications of 2. senator shall be as follows-

(L) He shall be of the full age of thirty years.

94 Federal G’ovemme7Lt in Oamada. [550

In all countries possessing a parliamentary system, and espe-
cially in those which have copied their institutions from the
British model, an upper chamber has been generally considered
a necessary part of the legislative machinery. In the United
States the necessity of having such a check upon the acts of
the body directly representing the people, was recognized from
the outset in the constitution of the congress and of every
state legislature. Two houses always formed part of the pro-
vincial legislatures of British North America from 17 91 until
1867, when Ontario, whose example has been followed by
other provinces of the confederation, decided to confine her
legislature to an elected assembly and the lieutenant-governor.

(2.) He shall be either a natural-horn subject of the queen, or a subject
of the queen, naturalized by an act of the parliament of Great Bri-
‘ tain, 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,
before the union or of the parliament of Canada after the union.

(3.) He shall be legally or equitably seized as of freehold for his own use
and benefit of lands or tenements held in free and common socage,
or seized or possessed for his own use and benefit of lands or tene-
ments held in franc-ulleu 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 incumhrances due or
payable out of, or charged on or affecting the same;

(4.) His real and personal property shall be together worth four thousand
dollars over his debts and liabilities;

(5.) He shall be resident in the province for which he is appointed;

(6.) In the case of Quebec, he shall have his real property qualification
in the electoral division for which lie is appointed, or shall be resi-
dent in that division.

24. The governor-general shall from time to time, in the qneen’s name,
by instrument under the great seal of Canada, summon qualified persons to
the senate; and, subject to the provisions of this act, every person so sum-
moned shall beeome and be H member of the senate and a senator.

25. Such persons shall he first summoned to the senate as the queen by
warrant. under her majasLy’s royal sign manual thinks fit to approve, and
their names shall be inserted in the queen’s proclamation of union.

26. If at any time, on the reoonunendation of the governor-general, the
queen thinks fit to dizeet that three or six memheis be added to the senate.
the governor-general may, by summons to three or six qualified persons (as

551] Federal Gooemzment in Canada. 95

The upper house of the Canadian parliament bears a. name
which goes back to the days of ancient Rome, and also invites
comparison with the distinguished body which forms so im-
portant 2. part of the American congress; but neither in its
constitution nor in its influence does it bear any analogy with
‘those great assemblies. An eminent authority on such ques-
tions, the late Sir Henry Maine, has very truly observed that
on close inspection the senates of the ancient world will be
found to answer very slightly to the conception of second
chambers of EL legislature, but that the first real anticipation
of a second chamber, armed with a vote on the proposals of a
separate authority, and representing a diifereiit interest, occurs

the case may be), representing equally the three divisions of Canada, add
to the senate accordingly.

27. In case of such addition being at any time made, the governor-gem
eral shall not summon any person to the senate, except on a further like
direction by the queen on the like recommendation, until each of the three
divisions of Canada is represented by twenty~four senators, and no more.

28. The number of senators shall not at any time exceed seventy-eight.

29. A senator shall, subject to the provision of this act, hold hhs place in
the senate for life.

30. A senator may, by writing under his hand, addressed to the gov-
ernor-general, resign his place in the senate, and thereupon the same shall
be vacant.

31. The place of a. senator shall become vacant in any of the following

(1.) If for two consecutive sessions of the parliament he fails to give his
attendance in the senate:

(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 8. subject or citizen of 2:. foreign power:

(3.) If he is adjudged bankrupt or insolvent, or applies for the benefit of
any law relating to insolvent debtors, or becomes 21 public defaulter:

(4.) If he is attainted of treason, or convicted of felony or of any info.-
mous crime:

(5.) 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 oflice under that
Government requiring his presence there.

96 Federal Gave’/vnment in Canada. , [552

in that much misunderstood institution, the Roman tribunate.’
Nor does the Canadian senate compare in legislative authority
with the American body of that name. The first is nominated
by the crown for life and has limited powers even of legislation,
since it cannot initiate or even amend money or revenue hills ;
the other, which is elected by the state legislatiues for a limited

32. When a vacancy happens in the senate, by resignation, death or
otherwise, the governor~general shall, by summons to a tit and qualified
person, fill the vacancy.

33. If any question arises respecting the qualification of It senator or at
vacancy in the senate, the same shall be heard and determined by the

34. The governoxugeneral may from time to time, by instrument under
the great seal of Canada, appoint a senator to be speaker of the senate, and
may remove him and appoint another in his steud.

35. Until the parliament of Canada. otherwise provides, the presence of
at least fifteen senators, including the speaker, shall be necessary to consti-
tute a meeting of the senate for the exercise of its powers.

36. Questions arising in the senate shall he decided by 9. 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.

147. In case of the admission of Newfoundland and Prince Edward
Island, or either of them, each shall be entitled to a. representation, in the
senate of Canada, of four members, and {notwithstanding anything in this
act) in case of the admission of Newfoundland, the normal number of sen~
ators shall he seventy-six and their maximum number shall be eighty-two;
but Prince Edward Island, when admitted, shall be deemed to be com-
prised 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 ]3runswicl< in the senate
shall, as vacancies occur, he reduced from twelve to ten members respec-
tively, and the representation of each of those provinces shall not be in-
creased 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.

1“ The Constitution of the United States,” Quarterly Review, X0. 313.
Mr. Goldwin Smith has said on this point: “ The illustrious council from
which the name of Senate is derived was not an upper house, but the gov«
eminent of the Roman Republic, having the executive practically under its
control and the i itiative of legislation in its hands.” See Douti-e’s Consti-
tution of Canada, p. 66.

553] Federal Government in Canada. 97

term, has a veto on treaties and important appointments to
ofiice, can amend appropriation hills so as to increase money
grants to any amount, and can sit as a court of impeachment.
In one respect, however, the senate of Canada can be com-
pared to the American house; it is a representative of the
federal, as distinguished from the popular principle of repre-
sentation. The three great divisions of Canada, the Maritime
Provinces, Ontario and Quebec, have been each given an
equal representation of twenty-four members with a View of
affording a special protection to their respective interests—a
protection certainly so far not called into action even in the
most ordinary matters. Since 1867 the entrance of other
provinces and the division of the territories into districts has
brought the number of senatois up to seventy-eight in all, but
at no time can the maximum number exceed eighty-four, even
should it be necessary to resort to the constitutional provision
allowing the addition of three or six new me1nbers———a position
intended to meet a grave emergency, such as a deadlock in a
political crisis. The senators are appointed under the great
seal of Canada by the govcrnobgeneral on the recommendation
of his council, and must be of the full age of thirty years, and
have real and personal property worth four thousand dollars
over and above their liabilities. The experience that Canada
had of the working of an elective legislative council since
1854 was considered in the convention of 186-1 to be such as
to justify the delegates in preferring a nominated body.
The great expense entailed by an electoral contest in the large
districts into which the province was divided was one feature
which was strongly pointed out at the conference.‘ It was
not deemed advisable to have two bodies elected by the people,
since the danger of legislative conllict was rendered more
imminent. \Vhile the experience of Victoria in Australia
certainly seems to support this opinion, the history of the
American congress might be considered to support an argu-

’ See remarks of Hon‘ George Brown in Confederation Debates, p. 89.

98 Federal Gzwemment in Oamwla. [554

ment the other Way. The object of the framers of the consti-
tution has been, in this as in other cases, to follow the model
of the British parliamentary system as far as our circumstances
will permit. Hence the house of commons can alone initiate
revenue or money bills, and the senate is confined by usage to
a mere rejection of such measures——a rejection justified only by
extraordinary circumstances. In every respect it shows the
weakness of an upper house under the British system and none
of the prestige that attaches to an ancient body of hereditary
legislators and of judicial powers as a court of appellate juris-
diction like the house of lords. The senate, imitating the
lords, tries divorce cases ; ‘ but this is a matter of convenience to
which the commons agrees without objection, since under the
constitution the upper house has no special privileges in this

respect. It is expressly set forth in the British North-

America Act that the powers and privileges and immunities of
the senate and house of commons cannot at any time exceed
those of the English commons. As a body of legislators the
senate can compare favorably with any assembly in Canada or
other dependencies of England. It has within its ranks men
of fine ability and large experience in commerce, finance and
law ; and its weakness seems inherent in the nature of its con—
stitution. The system of the nomination by the crown——
practically by the government of the day——tends to fill it with
men drawn from one political party whenever a particular
ministry has been long in office and fails to give it that pecu-
liarly representative character which would enlarge its useful-
ness as a branch of the legislature and give it more influence
in the country. It is a question worth considering whether
the adoption of such changes as would make it partly nomina-
tive and partly elective would not give it greater Weight in

‘In Nova. Scatia, New Brunswick, Prince Edward Island and British
Columbia the courts of law continue to try divorce cases, as before 1867, and
parliament has not interfered with those tribunals under the power con-
ferred upon it by the fundamental law. See Gemmill’s Parliamentary
Divorce, c. 4.

555] Federal Government in Canada. 99

public aiiairs. For instance, if the provincial legislatures had
the right of electing a fixed number at certain intervals, and
the universities were given the same privilege, the effect would
be, in the opinion of some persons, to make it more representa-
tive of provincial interests, and at the same time add to its
ranks men of high culture and learning.‘

But no doubt as long as our parliamentary system is mod-
elled on the English lines, an upper house must more or less
sink into inferiority when placed alongside of a popular
house, which controls the treasury and decides the fate of ad-
ministrations. It is in the commons necessarily that the
majority of the ministers sit and the bulk of legislation is ini-
tiated. In 1888 the two houses passed one hundred and
eleven bills and of these only three public bills and five pri-
vate bills originated in the upper house, and the same condition
of things has existed since 1867, though now and then, as in
1889, there is a spasmodic effort to introduce a few more gov-
ernment bills in the senate. In the session of 1888 twenty-six
commons bills were amended out of the one hundred and three
sent up to the upper house, and the majority of these amend-
ments wcre verbal and unimportant. Under these circum-
stances it may well he urged that by arrangement between the
two houses, as in the English parliament, a larger number of
private bills should be presented in the senate,’ where there is
a considerable number of gentlemen whose experience and
knowledge entitle them to consider banking and financial
questions, and the various subjects involved in legislation.

1 In the Prussian upper house the universities are represented and the
towns of a. certain number of inhabitants by their mayors. In principle it
is far more of 9. popular a$embly than the English house of lords. See an
interesting article in the Nineteenth Century (vol. XVL, No. 89) on the
federal states of the world.

3 As I have already shown, divorce bills invariably originate in the senate,
which has recently adopted an amended set of rules under the able super-
vision of Senator Gowan, and the select committee to which all such bills
are referred is governed by the rules of evidence and other formalities of the
courts as far as possible.

100 Fedeml Government in Canada. [556

For reasons already given, government measures must as a
rule be introduced in the commons, but still oven in this
respect there might be an extension of the legislative functions
of the upper chamber, and the effort made in 1889 by the gov-
ernment in this direction ought certainly to be continued until
it becomes a practice and not a mere matter of temporary con-
venience. In 1887 there were only ten private bills presented
in the senate out of the seventy that passed the two houses;
in 1888 the figures were five out of sixty-seven, and the same
state of things was shown in 1889. The majority of
these bills were of a character that could have origi’nated
in the senate with a regard to the public interests and
the expedition and convenience of the business of the two
houses. From time to time the senate makes amendments that
show how thoroughly its members understand and are compe-
tent to consider certain subjects ; and the sometimes hasty
legislation of the commons–hasty because that body is too
often overweighted with business–is corrected greatly to the
advantage of the country. This fact alone should lead to a
reform in-the direction indicated.

It is in the commons house that political power rests. As I
have already shown, it has both legislative and executive func-
tions, since through a committee of its own it governs the coun-
try. Like its great English prototype it represents the people,
and gives full expression to the opinions of all classes and inter-
ests, to a greater degree indeed than in England itself, since it
is elected on a franchise much znoreliberal and comprehensive.
At the present time the Canadian house of commons contains
two hundred and fifteen members, or about one member for
every twenty thousand persons. The representation is rear-
ranged every deocnnial census by not of parliament in accord-
ance with the terms of the constitutional law. The French
Canadian province has a fixed number of sixty-five members
which forms the ratio ofreprescntation on which 1 a decennial

‘At the last census the population of Canada was given as 4,332,810 per-
sons; it is now about 5,000,000.

557] Federal Government in Canada. 101

readjustment is based. Each of the other provinces is assigned
such a number as will leave the same proportion to the num-
ber of its population as the number sixty—five bears to the
population of Quebec when ascertained by a. census.‘ The
great province of Ontario, with two millions of people, is now
represented by ninety—two members, or fifty—eight more mem-
bers than the state of New York, with over five millions of
souls, has in the house of representatives.’ Quebec has, as just

1 B. N. A. Act, 1367.
(The Hausa qf C’077L‘/Iw’IlS.)

’ Sec. 37. The house of commons shall, subject to the provisions of this
not, consist of one hundred and eighty-one members, of whom eighty~two
shall be elected for Ontario, sixty-five for Quebec, nineteen for Nova Scotia
and fifteen for New Brunswick.

38. The governor-general shall from time to time, in the queen’s name,
by instrument under the great seal of Canada, summon and call together
the house of commons.

39. A senator shall not be capable of being elected or of sitting or voting
as a member of the house of commons.

(Sections 40-43 refer to electoral divisions and make temporary provi~
sions for elections.)

44. The house of commons, on its first assembling after a general election,
shall proceefl with all practicable speed to elect one of its members to be

45. In case of a. vacancy happening in the office of speaker, by death,
resignation or otherwise; the house of commons shall, with all practicable
speed, proceedto elect another of its members to be speaker.

46. The speaker shall preside at all meetings of the house of commons.

47. Until the parliament of Canada otherwise provides, in case of the
absence, for any reason, of the speaker from the chair of the house of com-
mons for 1!. period of forty»eight consecutive hours, the house may elect
smother 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 of commons
shall be necessary to constitute a. meeting of the 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 decided by a
majority of the voices other than that of the speaker, and when the voices
are equal, but not otherwise, the speaker shall have a vote.

102 Federal Government in Canada. [558

stated, sixty-five ; the maritime provinces, forty—three ; and the
remaining members are distributed in Manitoba, British
Columbia and the territories. Previous to 1885 the franchise
for the several provincial legislatures was the franchise for the
house of commons; but in that your an electoral-franchise act
was passed by parliament for the whole dominion. It was
contended, after the most protracted debate that has taken
place for years in Canada on any one question, that this radical
change was not justified by any public necessity, and was sim-
ply entailing an enormous expense on the treasury without
returning any corresponding advantage to the country. It
may be argued with truth that generally in a federal system it

50. Every house of commons shall continue for five years from the day of
the return of the writs for choosing the house (subject to be sooner dissolved
by the governor-general), and no longer.

51. On the completion of the census in the year one thousand eight hun-
dred and seVenty—onc and of each subsequent decennial census, the repre~
sentntiou ofthe four provinces shall be readjusted by such authority, in such
2L manner, and from 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:

(2.) 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) :

(3.) In the computation of the number of members for a. province a frac-
tional purl: not exceeding one-half of the whole number requisite for
entitling the province to a member shall be disregarded; but 21. frac-
tional part exceeding one-half of that number shall be equivalent to
the whole number:

(4.) On any such readjustment the number of members for a province
shall not be reduced unles the proportion which the number of the
population of the province bore to the number of the aggregate pop-
ulation of Canada. at the then last preceding readjustment of the
number of members for the province is ascertained. at the then latest
census to be diminished by one-twentieth part or upwards:

(5.) Such readjustment shall not take effect until the termination of the
than existing parlixunent.

52. The number of members of the house of commons may be from time

to time increased by the parliament of Canada, provided the proportionate
representation of the provinces prescribed by this act is not thereby disturbed.

559] Federal Government in Canada. 103
is desirable to use whenever practicable all the institutions of
the local government in order to bring the centre and its
members into as perfect harmony as possible with one another.
This is the practice in the United States, where congress is
elected on the franchises of the several states——a system which
has been found in every way satisfactory. However, these
and other arguments against the change were considered by the
majority in parliament as insufficient compared with the belief
that they entertained that it was expedient to have the do-
minion parliament perfectly independent of provincial control.
The franchise, though somewhat complicated in its details, is
so broad as practically to be on the very border of universal
suffrage. Every intelligent, industrious man, who is a British
subject by birth or naturalization and not a convict or insane
or otherwise disqualified by law, is now in a position to qualify
himself to vote for a member for-the commons; even the
Indians in the old provinces can also avail themselves of the
same privilege if they come within the liberal conditions of
the net. Members of the house, as well as of the senate,
receive a sessional indemnity of $1,000 in case the session
extends beyond thirty days, and an allowance of ten cents a
mile for travelling expenses} No property qualification is now
demanded from a member of the commons nor is he limited to
a residence in the district for which he is elected, as is the case
in the United States by law or usage; and should he not be
able to obtain a seat in the locality or even in the province
where he lives he can be returned for any constituency in the
dominion. This is the British principle which tends to elevate
the representation in the commons; for while as a rule mem-
bers arc generally elected for their own district, yet occasions
may arise when the country would for some time lose the

1 In the colony of Victoria, Australia, where salaries are much higher
than in Canada, members of the assembly receive $1,500 9. session, and alter
seven years’ service passes over railways,

104 Federal Government in Canada. [560

services of its most distinguished statesmen,‘ should the Amer-
ican rule prevail. The senators in Quebec, in View of the
exceptional position of that province, must reside in their own
divisions or have their property qualification therein ; but
while the constitutional law requires that in the case of the other
provinces senators must reside within the provincial limits, yet
there is no legal necessity that they should live in a particular
county or district. In a country like this, with many legislative
bodies, demanding the highest capacity, it would be unfortu-
nate were there such limitations in existence as it is admitted
tend in the United States to prevent the employment of the
highest talentin the public service.”

The house of commons may be regarded as fairly represen~
‘native of all classes and interests. The bar predominates, as is
generally the case in the legislatures of this continent; but the
medical profession, journalism, mercantile and agricultural pur-
suits contribute their quota. It is an interesting fact that a
large proportion of members have been educated in the uni-
versities and colleges of the provinces, and this is especially
true of the representatives from French Canada where there
are a number of seminaries or colleges which Very much
resemble the collegiate institutes of Ontario, or the high
schools of the United States, where a superior education, only
inferior to that of the universities, is given to the youth of the
country. Another matter worthy of mention is the fact that
a good proportion of the house has served an apprenticeship in
the municipal institutions of Outario——-nota few of the leading
men having been wardens, reeves, or mayors.

Of the sixty-five representatives from Quebec, there are
foxuteon Englishspeaking members, chiefly from the cities
and the eastern townships where a British population is still in

1 For instance, the present premier (Sir John Macdonald) when he lost
his seatin Kingston, Ontario, in 1878, was immediately returned for a con-
stituency iu Manitoba, and subsequently for a. seat in British Columbia.

’ See Professor Br_yce‘s comments on this point in the American Com-
monwealth, I., p. 258.


661] Federal Gouemment in Canada. 106

the majority. In Ontario, moreover, two of the constituen-
cies on the border line return two members to represent the
French population that is now living in those districts. To
this number we must add another representative from the
largely French half—breed constituency of Provencher in

As a matter of fact, the house of commons comprises many
of the ablest men of the country trained in law and poli-
ties. In this respect it must be compared rather with the
senate than with the house of representatives at Washington.
Rich merchants and bankers do not as 3. rule seek seats on its
benches, but still all classes of business find their representa-
tives within its walls. The man who can win success and
influence in the house has many objects of ambition to reward
him, though he must necessarily sacrifice the many opportuni-
ties for acquiring large wealth that offer themselves to those
who keep aloof from active politics. The executive has many
prizes in its gift in the shape of lieutenant—governorships,
judgeships, collectorships, postmastcrships, and many places in
the public service which do not fall within the provisions of
the civil service act. Thirteen or more positions in the privy
council are in View of an ambitious politician. Then there is
always the senate as a place of dignity when other plans fail of
achievement. The cabinet controls the public expenditures,
and it is all—iznportant to an aspiring politician to have as
much money as possible spent in his constituency. All these
influences help to strengthen the executive under a rigid sys~
tern of party government. Party lines are very closely drawn
in Canada, and the occasions are Very rare and exceptional
when men can aflhrd. to break loose from the trainmels that
bind them to a certain political body or set of opinions. In
these days a strong executive can exercise a powerful control
over its supporters in :1 legislature, perhaps more so than in
England where there always exists an iuiiependcnt sentiment
which shows itself’ at important crises in and out of parlia-

ment. The danger now-a—cla.vs arises not from the cncroach— –


106 Federal Government in Canada. [562

nient of the royal prerogative, but from the power of the
responsible executive which, nominally dependent on the
legislature, can, through the influences of party government and
individual ambition, make itself the master for the time being
as long as it has a strong majority in parliament. The
caucus‘ is an instrument that may be and is used to strengthen
a party. The strongest ministry does not pretend to deal
with important questions during a session without seeking the
advice of all its supporters in parliament from time to time.
The caucus is a place for strong speaking at crises of political
excitement, but, with careful management, party considerations,
as a rule, prevail, and occasions seldom arise when it breaks up
Without an understanding to support the “party ” at all haz-
ards. Dissolution is a weapon which an executive can always
threaten to unsheathe, and recalcitrant followers may prefer
that it should remain as long as possible in the seabbard. It
is better perhaps for the public interest that the government
should be strong than that it should be weak; for in the
former case it can spare defections, and (mi afl”ord to be deter-
mined in a,politieal crisis. It is a misibrtune, when, as in
France, there are numerous politidal cliques and sections,
incessantly warring against each other and preventing the
establishment of stable administrations.

The laws enacted for the preservation of the independence
of’ parliament and the prevention of corrupt practices at elec-
tions, are in principle and details practically these in operation
in the mother country. The former law derives its origin
from the statute of Queen Anne’ which established the valu-
able principle that the acceptance by a member of the house

‘Both government and opposition hold such a caucus when necessary.
WVe have not yet reached the perfection of the politiml system of primaries,
conventions and caucuses in the United Staten; but conventions are now
general.i_v held in the different electoral districts to nominate candidates for
the legislature, and there is :1 thorough organization of the two parties pre-
vious to a general election.

‘G Anne, 4:. 7, sees. 25, 26.

563] Federal Government in Ca’/zcwla. 107

of commons of an office of emolumeut from the crown, shall
thereby vacate his seat. Members of the house when called
to the government as heads of departments must at once resign
their seats and be reelected, though an exchange of oflices can
take place between ministers after their election under the con-
ditions laid down in the law. All officers of the public service
and contractors with the government are forbidden to sit in
parliament-an exception being made, as in England, of oflicers
in the military service. Since 1874 the house has given up its
jurisdiction over the trial of eontroverted elections, which pre-
viously had been considered by committees exposed to all the
insidious influences of purely political bodies. The courts in
the several provinces are now the tribunals for the trial of all
such contested elections ; and the results have so far in
Canada, as in the parent state, been decidedly in the public
interests. The laws for the prevention of bribery and cor—
ruption are exceedingly strict; and members are constantly
unseated for the most trivial breaches of the law, committed
by their agents through ignorance or carelessness. The expenses
of candidates must be published by their legal agents after
the election. “he whole intent of the law is to make elec-
tions as economical as possible, and diminish corruption. A
candidate may be disqualified from sitting in the commons,
or voting, or holding any office in the gift of the crown for
seven years, when he is proved personally guilty of bribery,
and the voters in a constituency may be also severely punished
by fine and imprisonment when corruption is proved against
them. Yet while these grievous offences against an honest
expression of public opinion are prosecuted and punished so
severely, it would be too much to say that all elections are
run any more in Canada than in England without a heavy
drain at times on the purse of a rich candidate or on the con—
tribut-ions of a. political party. It is safe to say, however,
that our system is a vast improvement on that of the United
States, and purity of elections is largely promoted compared
with the state of things in old times.

108 Feoleml Gooemment in C’a/nada. [564

The methods of business which the houses follow are well
calculated to promote the efficiency of legislation and secure
the satisfactory administration of public al”f’airs. Their rules
and usages are, in all essential particulars, derived from those
of the English parliament, and there has been no attempt
made to adopt the special rules and practice of congress in
any respect. On the day parliament has been summoned by
the crown to meet, the governongeneral, either in person or
by deputy, proceeds to the upper chamber and there seated on
the throne, surrounded by a brilliant stall” and the high officers
of state, reads in the two languages the speech, in which his
government sets forth the principal measures which they pur—
pose to present during the session. This speech, which is a
Very concise and short document compared with the elaborate
message of the president, is considered as soon as possible in
the two houses and generally passes without opposition or
amendment, since it is the modern practice to frame it in
terms that will not evoke political antagonism, though of
course occasions may arise when a difierent course will be
pursued in ‘order to test the opinion of the house on a par-
ticular policy of the administration. As soon as the formal
answer to the address has been passed, the houses proceed to
appoint the committees, and commence the regular business
of the session. The proceedings commence every day with
prayers, taken from the church of‘ England liturgy, and are
read by the speaker, alternately in English and French, in

the commons, and by a paid chaplain in the senate. The‘

rules of the two houses do not Vary much with respect to the
conduct of business, but more latitude is generally given to
members in asking questions and in other proceedings in the
senate than in the commons, where there is greater necessity
for economizing time. As it is in the popular house that
nearly all the business of importance is transacted I shall
confine myself to such a brief review of its rules and proceed-
ings as may be interesting and usefixl to a student of our
legislative system.

565] Federal Gore:-mncvzt in Canada. 109

While the committees are an important part of the legisla-
tive machinery of the Canadian parliament, still they do not
occupy the place they have reached in congressional govern-
ment. They are few in number, only ten, exclusive of some
small committees generally appointed to consider special ques-
tions in the course of a session. The important bodies are
these: The connnittee of public accounts, in which financial
inquiries are made, and particular expenditures of the gov-
ernment reviewed whcnever explanation or investigation is
deemed to be necessary; the committee of agriculture and
colonization, in which matters a.i’i’ecting those subjects are
fully considered; the committee of privileges and elections,
which explains itself; and four committees to which all pri-
vate bills respecting banking and commerce, navigation and
shipping, railways and canals, telephone and telegraph lines,
bridges, insurance and the incorporation of companies for
other purposes, are referred for full consideration. There are
also two committees on which members from the two houses
sit to consider the printing of documents and the library,
which are matters of common interest and management. The
committees vary in number from twenty—six to one hundred
and sixty members. The most numerous is the railway com-
mittee which has one hundred and sixty—four members; agri-
culture and colonization, one hundred and eight; banking
and commerce, one hundred and four; miscellaneous private
bills, sevcnty—five. They resemble, therefore, in this respect
the grand committees of the English house of commons rather
than the small bodies into which congress is diVided——by the
speaker in the house of representatives and by ballot in the
senate.’ Canadian committees are appointed by a committee
of selection on which the government has of course a majority;
and both sides of the house are fully represented. The speaker

‘In the house of representatives there were in 188<1fifty~l’our standing committem; in the senate forty-one. Sixteen is the highest number on a committee in the former, eleven in the latter house. 110 Federal Government in Oomada. [566 has no concern whatever in this important matter and acts only as the presiding officer of the assembly, bound to main- tain the rules and usages of parliament and to exercise the functions of his high oflicc irrespective of all political con- siderations whatsoever. He is elected by the majority at the opening of a new parliament and holds his office until it is dissolved or he resigns. His functions are those of the speaker in the English commons, and in no Way does he per- form the political duties of the speaker of the house of repre- sentatives, who is now practically the legislative chief of the party.‘ All bills must go through several stages in both houses before they can receive the assent of the governor—general and become law. The second reading is the stage when the prin~ ciple of the measure should be properly considered, and it is only in committee of the whole that its clauses can be regu- larly discussed. All bills are considered in committee of the . whole ; but private bills are first sifted in one of the standing committees just mentioned, and if reported favorably they come again before the house for further examination. I may as well explain here the distinction between the two classes of bills. All measures involving questions of public interest/—— the criminal law, customs, post office, militia and other matters within the general powers of parliament—are styled public bills. These bills are generally brought in directly on motion by the member in charge, or on a resolution in committee of the whole whenever a public burden is imposed, on the prin- ciple that the house should have as long a time as possible to consider matters of revenue and expenditure. As the govern- ment is practically responsible for all important measures of public policy, the great bulk of public legislation is prepared and presented by them; but it is competent for any one to introduce any bill he Wishes, provided it does not impose taxes or appropriate public moneys, which are questions con- 1Cong1-essional Government, by Woodrow Wilson, p. 108. 567] Federal Government in C’a/made. 111 stitnticnally within the purview of the executive alone. The order of business, laid daily on the desk of every member, is divided into government orders, public bills and orders, and private bills, besides questions put to the government, and notices of motions, all of which are taken up on particular days 1’n accordance with the rules of the house. If a member has a bill of importance on the paper, the government will give him every assistance in passing it before the house is pro- rogued and even will take charge of it themselves should it be expedient. Certain days are set apart for the government business and for private members; but near the close of the session the administration control all the time, since theirs is the all-important legislation. The private bills, which always outnumber the public and government measures, are presented and passed in conformity with special rules which do not apply to the other classes. Any persons who desire the incorporation of a banking, insurance, railway, or other company, or to con- struct a bridge, wharf or other work, must give notice in cer- tain journals of their intention, and then come before parlia- ment bypetition. This petition must be immediatelyconsidered by a standing committee to see if it is in accordance with the published notice and the standing orders of the house; and then, if the report is favorable, the bill is presented, read a second time, and referred to one of the committees to which it should properly go. Its consideration in that committee is the most important stage to which it is submitted; for its promoters must now show that there is no objection to its pas- sage, aud it is the duty of the committee to see that it inflicts no injury and is in conformity with the public interests. If there is opposition. to the bill, full opportunity is given by the rules to the contestants to appear and set forth their case. The house, through committees of this sort, acts in a Quasi judicial capacity. Members of the government sit on such committees and pay particular attention to all the details of legislation of this class. It will consequently be seen that the administration becomes practically responsible for the charac— 112 I+‘edera,l Government in Canada. [568 ter of all the legislation that passes parliament. The average ‘ number of measures that pass the two houses every session is one hundred and ten, of which three—fourths at least are of a private nature. The total number of bills presented as a rule during the session does not exceed one hundred and thirty, and it is therefore evident that very few desirable measures fail to become law. The fact that on the average seven thou- sand bills are brought every year into congress, of which not more than one thirtieth‘ ever becomes law, stands out in strik- ing contrast with the limited amount of legislation in the Canadian parliament. In both countries there are legislatures to relieve the central authority of a great number of bills which otherwise would come before it. The difference between Canada and the United States with respect to population and wealth does not by any means explain this (lifi“erenoe in point of legislation. In all probability the reason must he sought in the fact that in the Canadian, as in the British parliament, there is an administration which is immediately responsible for all important matters of public policy, and always bound to give a vigilant scrutiny to every measure that comes before the house. The principal duty of parliament is very truly considered to he the voting of supply. From early times in English history the kings were obliged to resort to the nation and ask them to provide the money necessary to meet their financial necessities. One of the most famous statutes in England is that of 1297, which followed the great charter wrung from John at Runnymede, and declares that no tallage shall be taken without the good will and assent of archbishops, bishops, earls, barons, knights, burgesses, and other freemen of the land. Since that day, parliament has had the power of taxa— tion. The three cstatis originally voted supply separately, but in the course of time the right of initiating all taxation and voting money rested with the peoplc’s representatives. In ‘Professor Bryce in the Ameriz,-a.n Commonwealth, L, 181, 182. 569] Federal Government in Canada. 113 Canada, as I have already shown in the second lecture, the commons houses in the various provinces, from the very com- mencement of legislative institutions, asserted their claims to full control over the public grants. Now for many years the rules and usages that have so long obtained in England with respect to money votes and taxes prevail in Canada and govern the relations between the two houses. The crown, with the advice of the council, recommends all appropriations of public money.‘ All measures of taxation can only be introduced by ministers of the crown and must be shown necessary for the pub- lic service. Appropriations and taxes are invariably first voted ‘ in committee of the whole in the shape of resolutions which, when agreed to at a subsequent stage of the house, are incor- porated into bills. Permanent grants, such as ministers’ or judges’ salaries, are passed in this way in ordinary committees of the whole. All sums of money, however, for the service of the year, are voted every session in committee of supply, when the estimates, giving all the votes in detail, are formally laid before the house by message from the govcrnor—general. These estimates contain several hundred votes arranged in the order of the various public services. For instance,—civil government, militia, penitentiaries, administration of justice, immigration, Indians, public works, railways and canals, quar- antine and the numerous other subjects for which parliament votes annually large sums of the public money. These esti- mates contain the expenditures for the current and the pre- vious year in parallel columns, for purposes of comparison, and it is the duty of the minister lesponsible for a particular ‘B. N. A. Act, 1867, see. 53. Bills for appropriating any part of the pub- lic revenue, or for imposing any tax or impost, shall originate in the house of commons. 54. It shall not be lawful for the house of comtnons to adopt or pass any vote, resolution, address, or bill for the appropriation of any part of the public revenue, or of any tax or impost, to any purpose that has not been fii-st recommended to that house by message of the governor-geneml in the ses- sion in which such vote, resolution, address, or bill is proposed. 114 Federal Gouemmeni in Omuzda. [570 expenditure to give full explanations on the subject when they are demanded by the house. As every vote is carefully scanned a very considerable part of the session is occupied by debates on this important committee, over which a permanent chair- man, who is also the deputy speaker, presides. When all the votes are passed in committee, then they are reported to the house, and a further opportunity given for debate, though members are permitted to speak only once at this stage. Res- olutions arc next passed in committee of ways and means to authorize the necessary payments out of the consolidated fund, and finally the appropriation bill, containing all the votes of supply in full, is introduced and passed through all its stages. The committee of supply votes the money, and the committee of ways and means provides the means of payment. It is in the latter committee all taxes are imposed for purposes of public revenue. When the estimates have been brought in it is the duty of the finance minister to make his financial statement, or, in parliamentary phrase, present the “ budget.” 1 He will on this occasion review the expenditure of the past, and estimate that for the following year, give his opinion on the financial situa-— tion and lay before the house a statement of any scheme of taX— ation that the government may have decided on, or of any changes that may be deemed necessary in the existing tariff’. One of the most important and interesting debates of the ses— sion generally takes place after the delivery of this speech. From the beginning of the session, members ask questions of the government on every imaginable public topic, and make formal motions for papers relating to matters of general or local interest. All such motions and inquiries are made after two days’ notice; for the rulw are very properly framed so as to prevent surprises, and give the house due information of the businms to come daily before it. But in the Canadian house, 1 From the old French word bougeae, a bag. In making this statement, the minister opensthe money bag of the people, figuratively speaking. 571] Federal Gave?”/mtent in Camcla. .115 and in the English commons in a more limited sense under the new regulations adopted since “obstruction” showed its objectionable features, there are certain methods which enable members to move motions or ask questions without number, and even without notice in the Canadian commons. It is always open to a member to bring up an important question i1nmediately—eXcept, of course, when there is a subject under consideration—-and debate it at any length on a motion for the adjournment of the house. Then, as soon as committee of supply is moved on any day, a member may make a motion on any question he wishes, unless it refers to the votes to be discussed in supply. As the rules do not permit any amend- ment to be made to a motion at such a stage, “the previous question,” in the English parliamentary sense, is practically in force and it is possible to get a direct vote on an issue; with~ out the cvasions that amendments offer on other occasions. Wliile in the ease of all bills and other motions, amendments must be relevant to the question, members can here bring up any subject they please. This is a practice which has its his- torical origin in the fact that in old times, when the English parliamentary system was developing itself, the people’s repre- sentatives laid down the principle that the king must redress their grievances before they should grant him the supply he asked from the nation. Those times have long since passed away and the people now fully control all taxes and expendi- tures, but the crown still asks for money through the council, and the commons grant it in due form. It is no longer neces- sary to threaten the crown with a refusal of supplies unless the people’s grievances are redressod; but still they can refuse it to an unfaithful government should the necessity arise. As a matter of fact, should the government be defeated in a session before supply is voted, the house would pass only such votes as are nermsary to meet the exigencies of the public service, and leave the whole question of supply open until the crisis is over and there is in oifice a ministry which has the confidence of the house and country. The privilege of obtaining an 116 Federal Govemment in Canada. [572 expression of Opinion on any question of interest, and of setting forth any public grievance is one which is often used in the Canadian house, though it has never been abused as in Eng- land. The practice of not giving the government and house notice of such motions, as in England, is objectionable, and that is practically admitted by the fact that it is now generally considered courteous to inform the ministry privately of the subject before it is formally proposed. It would, however, be clearly to the public advantage were the rules to require that the whole house should always have before it the text or at least the substance of a motion so that it may be discussed as intelligently as possible. The houses have never been compelled by obstruction, as in England, to adopt rules for the closure of a debate, nor do they limit the length of speeches on any occasion. “ The previous question” does not cut oil” adiscussion, as in the United States, but in accordance with the old English practice, only prevents amendment to a. question. The debate continues on the main question, until a vote is taken and it is decided whether it shall be put‘or not. If the house decide that the question be not put, then the main motion disappears from the order paper and the debate cannot continue ; but if the house decide that the question he put, then the debate must cease and the vote be taken immediately. The debates of the house are conducted, as a rule, with decorum, and the occasions are relatively few when the speaker is obliged to call a member to order for the use of improper language. Many years have passed since a member has been “ named” and censured by the house for unparliamentary expressions or conduct. Expulsion or sus- pension is unknown to these later days of Canadian parlia- mentary history, though cases of expelling a member just as unjustifiable as that of Wilkes can be found in the legislative annals of French Canada and Upper Canada, from 1800 to 1836. Even when party strife runs high and the debate goes on for weeks, the house shows great power of self—restraint. On the occasion of the disoumion in 1885 of the dominion 573] Federal Government in Ocmada. 117 electoral franchise bill, to which the opposition took very strong objection, the house had a sitting which lasted over fifty hours; but there was no exhibition of ill temper or passion, and the two contending parties simply made 9. great physical effort to the each other out. The speeches on impor- tant occasions, however, are sometimes unnecessarily long; for it is not unusual for a member to take up three hours before he closes. Debates are in such cases prolonged for clays and the house becomes too often the theatre for the utterance of elaborate essays instead of that incisive diseuwion which is best adapted to a deliberative assembly. Sometimes the house rises to the “height of a great argument” and the debate is confined closely to the subject, and to a few leading men on either side. The fact is that in the majority of cases, men speak to their constituents rather than to the house, through the medium of the oiiicial reports which are very full and give facilities for members to distribute their speeches ad libitum in their electoral districts. The house, however, in the ordinary proceedings and in committee of the Whole, and in select com- mittees, shows a very practical capacity for business, and in this way aifords some compensation for the wordiness that too often distinguishes its debates. The opportunities for oratori— oal displays are few, but at times there are speeches worthy of any legislative assembly in English speaking countries, and illustrative of the high intellectual standard of some of its members. Some of the French members speak English with remarkable accuracy, and it is but rarely now that any other language is heard in important debates, since the minority feel themselves compelled to speak so as to be understood by the great majority of which the house is composed. All the motions, however, are read and all the proceedings printed, in the two languages, in accordance with the British North America Act and the rules of the two houses.‘ ’ ‘ B. X. A. Act, sec. 133. Either the English or the French language may be used by any person in the debates of the houses of the parliament of 118 Federal Government in Canada. [574 In case of a division on a question, the motion is formally put by the speaker, and he calls for the “yeas ” and “nays.” If he cannot decide from the voices, and five members call for the names, those in favor of the question first stand up and the name of each member is called without reference to alpha- betical order by the assistant clerk and recorded by the clerk on a roll before him. Then the same procedure is repeated in the case of the opposite side, and as soon as the clerk has counted up and announced the numbers, the speaker declares the motion carried or ncgatived as the case may be. The nzunes are invariably recorded in alplmbetical order in the journals. The uihole process is very simple, and takes only about twenty minutes from the time the members are “called in ” and the vote declared. In concluding this lecture, I may briefly refer to the position of that large body of permanent officials generally known as the civil service of Canada, whose services are so valuable and indispensable to.thc good government of the country at large. Except in some of the smaller provinces—in Nova Scotia, for instance, until r‘eccutly——there has been for half a century and more in Canada, always a general recognition of thcimportant principle that the public servants should be irremovable except for sufficient cause, and that they should continue in office with- out respect in changes of political administrations. In the days previous to responsible government, this class was appointed by the governors, but since the days of Lord Mctcalfe, the third governor—genei~al of Canada after the union of 1841, who attempted in some memorable cases to ignore the advice of his ministers, judges and all public officials have been inva~ Canada and of the house; of the legislature of Quebec; and both those languages shall be used in the respective records and journuls of those houses; and either of those languages may he 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 court.s,of Quebec. The acts of the parliament of Canada and of the legislature of Quebec shall be printed and published in both those languages. 575] Federal Government in Canada. 119 riahly appointed on the recommendation of the administration. There is now a law 1 providing for examinations for admission to and promotions in all the important departments of the public service. It is still a moot question in Canada, as in England, whether ‘in all cases——especially in promotions—— success in answering the questions of examiners is invariably the best test of a candidate’s capacity for filling certain public posit-ions~—whetl1er sometimes it does not merely illustrate an ability to “ cram.” Experience in an office, in the opinion of men qualified to speak of such a subject, can most frequently prove the competency of an individual for the ordinary routine duties that the majority of public otlieials have to fill. Be that as it may, the educational test has at least the advantage of keeping out of the public service many undesirable men who, without some such test, would be pushed into the departments for more political reasons. The civil service act has relieved the government to. a very considerable degree of a political pressure which had seriously interfered with the eflicient organ- ization and working of the departments. Besides the minor oflicials appointed in accordance with the provisions of the law, there are a large number of important offices, like collectors of customs, postmasters, deputy or permanent heads of depart- ments, which are still given as rewards for political service. The moment, however, these men are appointed and Show themselves capable in the discharge of their duties, they become. the servants of the people at large, and not of a particular party or administration. Recognizing their obligations in this respect, the public officials of the dominion generally keep aloof from party confliet and intrigue and confine themselves to the legitimate functions devolving upon them. When they have attained a certain age, and become incapacitated for per- forming their duties, they are allowed a fair superannuation ‘See Can. Rev. Stat, c. 17 (as amended by 51 V., c. 12), which regulates the salaries paid to deputy ministers and clerks according to their grade. 120 Federal Gouemment 1’/rt Oamula. [576 allowance,‘ in accordance with the conditions laid down in the law. In certain political emergencies there may be sometimes an inclination to use the superannuation provisions to create a vacancy to reward a follower of some political party; but such cases are natural temptations inseparable from a system of popular government. On the whole, this superannua.ti011 allowance is an inducement to men to enter and continue in the public service, and is justified by the experience of the parent state. So much depends on the efiiciency of the per- manent public service in a country like Canada, where govern— ments and ministers are constantly changing, that it seems expedient to offer every possible incentive to the best class of men to give up the greater ambitions and prizes of life, and devote their services to the government. VVhatever defects may still exist in the rules and practices that regulate the public service, it is not too much to say that the permanent officials of Canada are, in general, an industrious and eflicient class, in every way rcflecting credit on our system of government. ‘See Can. Rev. Stat, e. JS. LECTURE IV. THE PROVINCIAL GOVERNMENTS AND LEGISLATURES. The Provinces are so many political entities, enjoying ex- tensive powers of local government and forming parts of a Dominion whose government possesses certain national attri~ butes essential to the security, successful working, and per—‘ manence of the federal union, established by the British North America Act of 1867, which defines the respective jurisdictions of the federal organization and its members. These provinces vary just as do the American States in population and area. Ontario may be compared to Ohio, and Prince Edward Island to Rhode Island. British Columbia has the area of an em- pire, but as yet its whole population is the smallest of all the provinces. Previous to the confederation, all the provinces, except Manitoba, which was formed in 1870 out of the North- west Territories, had a complete organization of government and legislature. The political history of Ontario and Quebec has, for convenience sake and on account of their having written constitutions since 1774, been briefly reviewed in a former lecture, and it is, therefore, only necessary to refer here to that of the smaller provinces. Nova Scotia, New Brunswick and Prince Edward Island were formerly por- tions of the French domain in America, but they were form- ally ceded to England by the treaty of Utrecht in 1714, and the treaty of Paris in 1763. There are still in certain dis- tricts a small population descended from the old French, who once tilled the fertile lands of Acadie, that ill—defined region, which comprised not only Nova.Scotia and New Brunswick, 9 121 122 Federal Goremment in Ctmada. [578 but a considerable part of the State of Maine, according to the contentions of French statesmen. None of these provinces were ever given written constitutions by the parliament of Great Britain, as we have seen was the case with old Canada; but to all intents and purposes they enjoyed, previous to 1867, as complete a system of self—government as that large province. Their constitutions must be sought in the commissions of the lieutenant—governors, despatches of the colonial secretary of state, imperial statutes, and various official documents, grant- ing in the course of time a legislative system and responsible government. At the time of the outbreaks in Upper and Lower Canada in 1837-8, there was still a considerable amount of dissatis~ faction in the Maritime Provinces, arising from the existence of an irresponsible executive, the constant interference of the imperial government in colonial matters, and the abuse of the powers of the representative and executive bodies; but “ if there was in those sections less formidable discontent and less obstruction to the regular course of government, it ‘was because in them there was a. considerable departure from the ordinary course of the colonial government, and a nearer approach to sound constitutional practice.” In New Bruns- wick especially, “the political controversies that had been extremely bitter between the executive and legislative authori~ ties were, to a great extent, terminated by the concession of all the revenues to the assembly.” 1 In Prince Edward Island the political situation was aggravated by the fatal mistake, made at the very commencement of its history, of handing over all the lands to a few absentee landlords, a burning question that was not satisfactorily settled until after the island had become part of the confederation. At the time of the confederation all the provincm enjoyed parliamentary government in as complete a sense as Canada itself; responsible government having been given to Nova 1 Lord Durha.m’s Report, pp. 62, 63. 579] Federal Gwcmment in Oamzdah 123 Scotia and New Brunswick in 1848, and to Prince Edward Island three years later. In each province there was a. lien- tenaut—governor appointed by the crown directly, on executive responsible to the legislature, which was composed of two houses, an assembly elected by the people and a legislative council appointed by the crown, except in Prince Edward Island, where then, as now, it was elective. It was therefore only necessary to enact in the constitution that the two provinces of Nova Scotia and New Brunswick should have the same territorial limits, and that their constitu- tions should remain as at the time of the union, until altered under the authority of the act. In the case, however, of Canada, it was necessary to divide it, since one of the principal objects of the federal union was to get rid of the political difficulties that had so long complicated government in Canada and sep- arated Frcnch Canada from the western section. Consequently Canada was divided into two separate provinces as before the union of 1841, with the respective names of Quebec and Ontario, instead of Lower Canada and Upper Canada.‘ In 1B. N. A. Act, 1867, see. 5. Canada shall be divided into four provinces, named Ontario, Quebec, Nova Scotia and New Brunswick. 6. The parts of the province of Canada (as it exists at the passing of this act) which formerly constituted respectively the provinces of Upper Canada and Lower Canada, shall be deemed to be severed and shall form two separate provinces, The part which formerly constituted the province of Upper Canada. shall constitute the province of Ontario; and the part which for- merly constituted the province of Lower Canada shall constitute the pro- vince of Quebec, 7. The provinces of Nova Scotia. and New Brunswick shall have the same limits as at the passing of this act. An imperial statute passed since 1867 (B. N. A. Act, 1871) provides: 3. The parliament of Canada may from time to time, with the consent of the legislature of any province of the said dominion, 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 climinution, or alteration of territory in relation to any province affected thereby‘ 124 Federal Government in Ca/rtada. [580 View of this division, it became necessary to make special pro- visions for Ontario and Quebec in accordance with an address ~adoptcd in the Canadian legislature. The representatives of Upper Canada wished to have only one house, a legislative assembly, while those of Lower Canada preferred the more British and indeed the more American system of two houses. It has been urged by an eminent judge that the British North America. Act carried out confederation “ by first consolidating the four original provinces into one body politic, the Dominion, and then redistributing this Dominion into four provinces.” 1 In other words the provinces were newly created by the act of union. But by no reasoning from the structure of the act, can this contention, which makes the provinces the mere crea- tions of the statutes, and practically leaves them only such powers as are specially stated in the act, be justified. If it was so, there must have been for an instant a legislative union and a_ wiping out of all old powers and functions of the pro- vincial organizations and then a redivision into four provinces with only such powers as are directly provided in the act. _ The weight of authority now clearly rests with those who have always contended that in entering into the federal com- pact the provinces never intended to renounce their distinct and separate existence as provinces, when they became part of the confederation. This separate existence was expressly reserved for all that concerns their internal government; and in forming themselves into a federal association under political and legislative aspects, they formed a central government for inter-provincial objects only. Far from the federal authority having created the provincial powers, it is from thae provin- cial powcrs that there has arisen the federal government to which the provinces ceded a portion of their rights, property and revenues.” ‘Mr. Justice Strong, St. Ci1.tl1arine’s Company «)3. The Queen. Sup. Court R., Vol. 13, p. 605. ‘An eminent constitutional lawyer, Hon. Edward Blake, has taken issue with the learned judge in the course of an exceedingly able argument he 581] Federal G‘ovemme’m5’ in Canada. 125 The constitutions of the four provinces, which composed the dominion in 1867, are the same in principle and in details, except in the case of Ontario, where there is, as I have already shown, only a‘ legislative assembly. The same may he said of the other provinces that have been brought into the union since 1867. All the provisions of the British North America Act that applied to the original provinces were, as far as possi- ble, made applicable to the provinces of British Columbia, made before the judicial committee of privy council, in the case of the Queen and the St. Catharine’s Milling Company, and I cannot do better than quote his exact words, which seem clearly to indicate the real char- acter of the union: “What then was the general scheme of that act! First of all, as I have suggested, it was to create a federal as distinguished irom a Zegzlelative union, a union composed of several existing and continued enti- ties. It was not the intention of parliament to mutilate, confound and destroy the provinces mentioned in the preamble, and having done so, from their mangled remains, stewed in some legislative caldron, evoke by some legislative incantation, ahsolutely new provinces into an absolutely new existence. It was rather, I submit, the design and object of the act, so far as consistent with the re~division of the then province of United Canada into its old political parts, Upper and Lower Canada, and with the federal union of the four entities, Nova Scotia, New Brunswick and the reconsti- tuted parts of old Canada, Ontario and Quebec; it was the design, I say, so far as was consistent with those objects, by gentle and considerate treatment to preserve the vital. breath and continue the political existence of the old provinces, ‘ However this may be, they were being made, as has heen well said, not fractions of a unit but units of a multiple. The Dominion is a multiple, and each province is a unit of that multiple, and I submit that undue stress has been laid, in the judgment of one of the learned judges below, upon the form which is said to have been adopted, of first uniting and then dividing the provinces. Isuhmit that the motive and cause of that form was the very circumstance to which I liavc zidvcrted, the neces- sity of the redivision of old Canada. Three provinces there were, ‘four’ there were to he; and the emphatic word in that clause is the word ‘four.’ But for the special circumstance of the redivision of old Canada, there would have been no such phrase. Again, consistently with and supporting the suggested scheme of the act, thereis to be found important language with reference to the provincial institutions and rights of property which are spoken of as continued and retained, words entirely repugnant to the notion of 8. division and afresh creation.” See argument published in pamphlet form, Toronto, 1888. 126 Federal G‘-occmment in amada. [582 Manitoba and Prince Edward Island, just as if they had formed part of the union in 1867. Manitoba was given a constitution similar to that of the older provinces by an act of Canadian parliament, and it was expressly provided in the terms of union with British Columbia that the government of the dominion would consent to the introduction of responsible government into that province and that the constitution of the legislature should be amended by making a majority of its members elective.‘ Immediately after the union these reforms were carried out, and the province was placed on the same footing as all the other provinces. Consequently the local or provincial constitutions are now practically on an equality, so far as the executive, legislative and all essential powers of selflgovermncnt are concerned ; and all of them have the authority under the fundamental law to amend their constitutions, except as regards the office of licu« tenanbgovernor.“ British Columbia and Manitoba accordingly availed themselves of their constitutional privileges, and there is now only one house, a legislative assembly, elected by the people in those provinces. In all the provinces, at the present time, there is 2. very com- plete system of local self—govcrnn1ent, administered under the authority of the British North America Act, and by means of the following machinery: A lieutenant—governor appointed by the governor—general in council ; An executive or advisory council, responsible to the legis- lature; A legislature, consisting of an elective house in all cases, with the addition of an upper chamber appointed by the crown in three provinces, and elected by the people, in one; ‘For constitutions of provinces admitted since 1867, see for Manitoba, Can. Stat, 33 V’ict., e. 3; Man.Stat., 39 Vick, c. 28; Imp. Stat. 34-, 35 VicL., c. 28, sec. 6.»—l3ritisl1 Columbia, Can. Stat. for 1872, p. 34, B. C. Con. Stat, c. -i:2.—.’Pri_ncc Edward Island, Gun. Stat. of 1873, p. 11. ’ See supra, p. 47. 583] Federal Government in Canada. 127 A provincial judiciary, composed of several courts, the judges of whom are appointed and paid by the dominion gov- ernment; A civil service, with officers appointed by the provincial gov— ernment, holding oflice, as a rule, during pleasure and not removed for political reasons; A municipal system of mayors, wardens, reeves and coun- cillors, to provide for the purely local requirements of the cities, towns, townships, parishes and counties of every province. The lieutenant-governor is appointed by the governor- general in council, by whom he can be dismissed for “cause assigned” which, under the constitution must be communi— eated to parliament.‘ He is therefore an officer of the do- minion as well as the head of the executive council and ‘B. N. A. Act, 1867, see. 58. For each province there shall he an oflicer, styled the lieutenanhgovernor, appointed by the goveruortgencral in coun~ oil by instrument under the great seal or Canada. 59. A lieutenant-governor shall hold ofiice during the pleasure of the governor-general; but any lieutenanhgovernor appointed after the com- mencement. of the firsi; session of the parliament of Canads.,s11étll not he 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 com« menoement of the next session of the parliament. 60. The salaries of the licutenanibgovernors shall be fixed and provided by the parliament of Canada. 61. Every lieutenant-governor shall, before assuming the duties of his oflice, make and subscribe before the governor-general or some person authorized by him, oaths of allegiance and oflioc similar to those taken by the governor-general. 62. The provisions of this act, referring to the lieubena.nt—governo1’, extend and apply to the l_ientenant—governor for the time being of each province or other, the chief executive ofiicer or administrator for the time being carrying on the government of the province by whatsoever title he is designated. 67. The governor-general in council may, from time to time, appoint an administrator to execute the ofl-lee and functions of lieutenant-governor during his absence, illness or other inability. 128 Federal Govemment in Canada. [584 possesses, within his constitutional sphere, all the authority of a licutenaut—governor before 1867. The essential difference now in his position arises from the fact that his responsibility is to – the government which appoints him, just as these high officials before the confederation were responsible immediately to the imperial authorities. He acts in accordance with the rules and conventions that govern the relations between the governor- general and his privy council. He appoints his executive council and is guided by their advice so long as they retain the confidence of the legislature. He has ” an unquestionable constitutional right to dismiss his ministers, if, from any cause, he feels it incumbent upon him to do so. In the exercise of this right, as of any other of his functions, he should, of course, maintain that impartiality towards rival political parties which is essential to the proper performance of the duties of his office ; and for any action he may take he is (under the fiftyminth ‘ section of the British North America Act) directly responsible to the governor—general.” ‘ But it is quite clear that While the lieutcnant«governor can dismiss his ministers, it is a right only to be exercised for a cause fully justified by the practice of sound constitutional government ; and he should not for per- sonal or political reasons, be induced to withdraw his confi- dence from a ministry which has an unequivocal majority in the popular branch, unless indeed there should arise some grave public emergency which would compel him to call upon another set of advisers, and ask them to support him and appeal ‘to the people for their judgment on the question at issue. Doubts have been raised from time to time, though rarely now, compared with the earlier years of the working of our system, Whether the lieutenaut—governor of 2. province represents the crown as before the union of 1867, but it is generally admitted that in the discharge of all the executive and administrative functions that devolve constitutionally upon him and require 1Despateh of secretary of state for the colonies in Lieutenant-Governor I.etellier’s case, 1879, Commons Papers 1878-79, 0. 244-5, pp. 127, 128. 585] Federal Govern/rrgent 1’/n, Ctmada. 129 the interposition of the crown in the province, the lieutenant- governor has all the necessary authority. In various cases that have come before the highest courts in Canada and in England, in which the point has been argued, the weight of authority now goes to sustain the general proposition I have laid down.‘ In one very irn-r portant argument that was heard before the courts of Canada and finally before the judicial committee of the privy council, the question arose whether it is the provincial or the dominion government that is entitled to the estates of persons dying intestate and without heirs. As every legal student knows, property which has no owner, escheats to the crown, in proper accordance with the maxim of feudal law, and, in our day, that means it becomes the property of the people. One able counsel for the provincial authorities in this case laid special emphasis on the argument that both from the legislative and executive point of view the royal prerogatives, which in Eng- land are not the personal appanage of the sovereign, but are the property of the people, and which the sovereign holds in trust to exercise them in the interests of the British nation, are equally exercised in the provinces of the queen, not more, however, to her personal profit than in the mother country, but for the people of the provinces, with respect to whom these prerogatives have not lost their character of a trust, and that, not being able to exercise them herself, she has delegated their exercise to the lieutenant—governors, who are her man- dataries.’ The judicial committee declared by implication that escheatcd lands in any province went to the provincial and not to the dominion government. Their Lordships dwelt on the clause 109,“ in the constitutional act of 1867, which enacts that “all lands, mines, minerals and royalties” belong- 1 See opinion of Chief Justice Ritchie in case of Mercer vs. the e.ttcrney- general of Ontario. Sup. Court Rep, Vol. V, pp. 636, 638, 643. ‘Attorney-general (now judge) Loranger. Sup. Court Rep.,Vol.V, p. 608. “See Boui-i.ncf.’s Manual of Constitutional History, pp. 147-151. 130 Federal Government in Canada. [586 ing to the provinces at the time of the union shall continue to belong to those provinces. The real question, in their opinion, was as to the effect of the words, “lands, mines, minerals and royalties” taken together. The mention of “mines” and “minerals” in this context was not enough to deprive the word “royalties” of what otherwise would have been its proper force. The general subject of the whole section is “of a high political nature,” it is “the attribution of royal territorial rights, for purposes of revenue and govern~ merit, to the provinces in which they are situate or arise.” 1 This decision in its entirety is properly regarded as decidedly in the direction of strengthening provincial jurisdiction on the point I have been considering. The executive council, which is the name now given to the administration of each province, a name borrowed from the old provincial systems of government,” comprises from seven members to two or three in British Columbia, holding, as a rule, various provincial oflices as heads of departments. Their titles vary in some discs, but generally there is in every execu~ tivc council an attorncy—general, a provincial secretary, and a commissioner of lands. In the cabinet of Ontario there is a minister of education, since that branch of the public service is of exceptional importance in that province in View of the great expenditure and large number of common and grammar schools, collegiate institutes, normal and model schools, besides the provincial university in Toronto. All the members of the executive council, who hold departmental and salaried offices, must vacate their seats and be reelected as in the case of the dominion ministry. The principle of ministerial responsibility to the lieutenant-governor and to the legislature is observed in the fullest sense? 1 Legal Neivs, Vol.V.L p. 244. ‘The same name was applied to the old zxnmcils of the thirteen colonia. ‘B. X. A. Act, 1867, see. 63. The executive council of Ontario and Quebec shall be composed of such persons as the lientenantvgovernor irom 587] Federal Government in Canada. 131 In my third lecture, I showed the importance of the powers granted by the British North America Act of 1867 to the provincial legislatures, and gave a brief statement of what I believed, from a study of the best authorities, to be the true relations between those bodies and the dominion government. It is, therefore, only necessary for me to consider here some features of the constitution of these legislatures, the election of niembcrs, the trial of controverted elections, the prevention of bribery and corruption, and the great variety of subjects that fall within their legislative jurisdiction. time to time thinks fit, and in the iirst instance of the following oflieers, namely: the attorney-general, the secretary and registrar of the province, the treasurer of the province, the commissioner of crown lands, and the eommisioner of agriculture and public works; with, in Quebec, the speaker of the legislative council and the solicitor-general. 64. The constitution of the executive authority in each of the provinces of Xova Scotia and New Brunswick shall, subject to the provisions of this act, continue as it exists at the union until altered under the authority of this act. 65. All powers, authorities, and functions which under any 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 Upper Canada, Lower Canada, or Canada, were or are before or at the union vested in or exercisable by the respective govemors or lieutenautgovernors of those provinces, with the advice, or with the advice and consent 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-gem ernors 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 lieutenant- govcrnor of Ontario and Quebec, respectively, with the advice or with the advice and consent of, or in conjunction with the respective executive coun- eils or any members thereof, or by the lieutenant-governor individually, as the case requires, subject nevertheless (except with respect to such as exists under the 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-gnvemor 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. 132 Fedeml Government in Canada. [588 The legislatures have a duration of four years—-«in Quebec, of five—-unless sooner dissolved by the lieutenant—governor. They are governed by the constitutional principles that obtain at Ottawa. The lieuteuant—governor opens and prorogues the assembly, as in Ontario, Manitoba and British Columbia, or the assembly and the legislative council in the other provinces, with the usual formality of a speech. A speaker is elected by the majority in each assembly, or is appointed by the crown in the upper charnbeizl The rules and usages that govern their proceedings are derived from those of England, and do not difl’er in any material respect from the procedure in the dominion parliament. The rules with respect to private bill legislation are also equally restrictive. The British North America Act applies to the speakership of the assemblies the provisions that it enacts with respect to the speakership of the commons. The legislatures of Ontario and Quebec, like the flozninion parliament, must sit once every twelve months; but apart from the existing usage that supply has to be voted every twelve months, the act flemands an annual session. None of the provinces have yet adopted biennial sessions in imita- tion of the very general practice of the state legislatures. Not 113. N. A. Act, 1867: 1.-—ONrAmo. Sec. 69. There shall be a legislature for Ontario, consisting of the lieu~ tenant-governor and of one house stylccl the legislative assembly of Ontario. 70. The legislative assembly of Ontario shall be composed of eighty-two members, to be elected to represent the eighty-two electoral districts set forth in the first schedule to this act. 2.——Qv:n1s1«:c. 71. ’.L‘here shall he 9. legislature for Quebec, consisting of the lieutenant- governor and two houses, styled the legislative council of Quebec, and the legislative assembly of Quebec. 72. The legislative council of Quebec shall he composed of twenty-four members, to be appointed by the lientenanbgovernor, in the queeifs name, by instrument under the great seal of Quebec, one being appointed to repre~ sent each of theitwentffonr electoral divisions of Lower Canada in this not referred to, and each holding olfiee for the term of his life, unless the legis— lzsture of Quebec otherwise provides, under the provisions of this act‘ 589] Federal G’ovemme1:/t in C’a/nada. 133 only does the British practice of voting annual estimates stand in the Way of this change, which would require an amendment of the provincial constitutions, but it would be hardly accept- able to an opposition in a legislature, since it vvould greatly strengthen an administration and lessen their responsibilities to the assembly. In the United States there is no cabinet with seats in the assemblies dependent on the vote of the majority, and biennial sessions have their advantages, but it would be in this country a radical change hardly consistent with the principles of responsible government. 73. The qualifications of the legislative councillors of Quebec shall be the same as those of the senators for Quebec. 74. The place of a legislative councillor of Quebec shall become vacantin the cases, nzuhztis nmtomdis, in which the place of senator becomes vacant. 75. When a vacancy happens in the legislative council of Quebec by resignation, death or otherwise, the lieutenant-governor, in the (1ueen’s name, by instrument under the great seal of Quebec, shall appoint a. fit and qualified person to fill the vacancy. 76. If any question arises respecting the qualification of a legislative councillor of Quebec, or a vacancy, in the legislative council of Quebec, the same shall he heard and determined by the legislative Council. 77. The lieutenanbgovermor may, from time to time, by instrument under the great seal of Quebec, appoint a member 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 presence of at least ten members of the legislative council, including the speaker, shall be necessary to constitute a meeting for the exercise of its powers. 79. Questions arising in the legislative council of Quebec, shall be decided by a. majority of voices, and the speaker shall, in all cases, have 21 vote, and when the voices are equal the decision shall be deemed to be in the negative. 80. The legislative assembly of Quebec shall be composed of sixty-five members to be elected to represent the sixty-five electoral divisions or dis- tricts of Lower Canada, in this act referred to, subject to alteration thereof by the legislature of Quebec; provided that it shall not be lawful to present to the lieutenantzgcvernor of Quebec for assent, any bill for altering the limits of any of the electoral divisions or districtsmcntioned 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 ma- jority of the members representing all those eleclnral divisions or districm, and the assent shall not be given to such bill unlem an addra had been 134 Federal Government in Canada. [590 The number of members varies from ninety-one in the legis- lature of the most populous province of Ontario to twenty—seven in British Columbia, with the smallest population. Members of the legislative councils, where they exist, have a property qualification,‘except in Prince Edward Island; but the mem- bers of the assemblies need only be citizens of Canada and of the age of twenty-one years. They are elected in Ontario on a franchise which is manhood suffrage, qualified only by resi- dence and citizenship, and the conditions of the suffrage are hardly less liberal in nearly all the provinces, and vary little presented by the legislative assembly to the lieutenant-governor stating that it has been so passed. 3.——Om’Amo AND QUEBEC. 81. The legislatures of Ontario and Quebec respectively shall be called together not later than six months after the union. 82. The lieutenant-governor of Ontario and of Quebec shall, from time to time, in the Q,ucen’s name, by instrument under the great seal of the province, summon and call together the legislative assembly of the province. 83. Until the legislature of Ontario or Quebec otherwise provides, a per- son accepting or. holding in Ontario or in Quebec, any oflice, commission, or emplcyment, permanent or temporary, 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 9. 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 province, or holding any of the following offices, that is to say: the ofliccs 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—gencral, or shall dis- qualify him to sit or vote in the house for which he is elected, provided he is elected while holding such cilicc. 84. Until the legislatures of Ontario and Quebec respectively otherwise provide, all laws which at the union are in force in those provinces respect- ively, relative to the following matters or any of them, na.meIy:~—the quali- fications and disqualifimtions of persons to be elected to sit or vote as mem- bers of the zmembly of Canada, the qualifications or (lisqualilications of voters, the oaths to be taken by voters, the returning oliicezs, their powers and dntiw, the proceedings at elections, the periods during which such elections may be continued, and the trial of controveited elections and the proceedings incident thereto, the vacating of the seats of members, and the 591] Federal Government in Canada. 135 from each other——the province of. Quebec imposing in a few particulars the most restrictions and showing a decided indis- position to adopt universal suffrage. Members are paid an indemnity which varies from $800 in Quebec to $172 in Prince Edward Island, with a small mileage rate, in most cases, to pay travelling expenses. The laws providing for the independence of the legislature and for the prevention of bribery and corruption are fully as strict as those which are in force in the case of the dominion elections. In all cases the courts are the tribunals for the trial of controverted 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 Quebec: Provided, that until the legislature of Ontario otherwise provides at any election for 2. 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 up- wards, being a householder, shall have :1 vote. 85. Every legislative assembly of Ontario and every legislative assembly of Quebec shall continue for four years from the day of the return of the writs for choosing the same (subject, nevertheless, to either the legislative assembly of Ontario or the legislative assembly of Quebec being sooner dissolved by the lieutenant-governor of the province), and no longer. [Ex— tended as respects Quebec to five years by Quebec Stat. 44-45 Vict., c. 7 J 86. There shall he a session of the legislature of Ontario and of that ofi Quebec once at least in every year, so that twelve months shall not inter- vene hctwcen the last sitting of the legislature in each province in one ses- sion and its first sitting in the next session. 87. The following provisions of this act respecting the 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 3 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 recnactcd and made applicable in terms to each such legislative assembly. 4-.—NovJL Scorn; AND NEW Bm):~zs\vIcx. 88. The constitution of the legislature of each of the provinces of Nova Sootia. and New Brunswick shall, subject to the provisions of this act, com iinue as it exists at the union until altered under the authority of this act; and the house of assembly of NewBrunswick existing at the passing of this act shall, unlc$ sooner dissolved, continue for the period for which it was elected. 136 Federal Goomvmem in Ctmadu. [592 elections. It is hardly necessary to say that the demand upon the classes of men disposed to give up their time to the public service is very considerable, when we reiiect upon the large representation required for the parliament and legislatures, apart from the various municipal councils in the several provinces. It has been questioned whether it was quite wise at the inception of confederation to limit the services of capable men to one legislative body, in other words, to prevent dual representation. Be this as it may, the legislatures particularly do not appear in anyway inclined to have their members under the influences of the dominion parliament, but prefer being entirely independent of all other legislative authorities. It is, only in the Quebec legislative council that a member can also si.t in the senate, but this privilege is enjoyed only by one or two men and is very different from dual representation in two representative bodies. It is obvious, so far, that while the house of commons naturally attracts the more ambitious men, since it olfers them greater prizes and a wider scope for their ambition, yet the assemblies are filled, for the most part, by men of excellent business habits and practical experience, and, in not a few cases, of conspicuous talent. As much space is given in the leading journals to the debates of the legislatures as to those of the parliament at Ottawa, and it must necessarily be so in view of the importance and variety of the questions that come every session under their cognizance. The very system which makes a government responsible to and depend- ent on the legislature for its continuance in power must to a great extent explain why these bodies exercise greater influ- ence than do similar authorities in the American states, even with the right of electing senators to congress. The subjects that come under the purview of the legisla- tures, from smsion to session, are multifarious, so extensive is the scope of their legislative powers. The very section giving them jurisdiction ‘over property and civil rights necessarily entails legislative responsibilities which touch immediately every man, woman and child in the province. “7 593] Federal Government in Canada. 137 If We take up any volume of the statutes of a province, of Ontario for instance, we shall see the truth of the observation I made in the course of the third lecture, that provincial leg- islation in every way more nearly affects our daily life and interests as citizens of a community than even the legislation of the dominion parliament. In the statutes for 1888 we find laws relative to probate and letters of administration, execu- tions, mortgages, sales of chattels, solemnization of marriage, married women’s real estate, benevolent, provident and other societies, liquor licenses, frauds, closing of shops and hours of labor, prevention of accidents by fires in hotels and other places and public buildings, protection of game and fur—bcar— ing animals, protection and reformation of neglected children, agricultural exhibitions, besides a large number of private and local acts for the incorporation of insurance and other compa- nies, for the incorporation of towns, for the issue of deben- tures for certain local purposes, and the multiform objects which the constitution places under provincial control. Then every session there is the distribution of the public moneys, which, as in the dominion parliament, are voted in the com- mittee of supply, and included in an appropriation act. As I have shown,‘ the provincial funds are provided in a great measure from the dominion subsidies, the sale of public lands, timber licenses, and mining royalties, but each province has a potential right of direct taxation, which so far has never been directly exercised by the legislature itself. In the case of a wealthy province like Ontario, with a surplus revenue, the public expenditures are very comprehensive, and illustrate the importance of the interests involved. In 1888 there was required for civil government, $198,745; administration of justice, $366,47 6 ; education, $581,412; maintenance of public institutions, $705,664; agriculture, $141,931; hospitals and charities, $113,686 ,~ maintenance and repairs of government and departmental buildings, $641,176 ; public buildings, ‘See eupru, p. 73. 10 138 Federal Govmzment in C’a/na.da. [594 $383,062; colonization roads and public works, $157,146, the total amount of expenditure being $3,205,804. From time to time large railway subsidies are granted for the con- struction of railways within the provincial limits, and this has been done lavishly in the province of Quebec. The total amount of subsidies voted by all the provinces up to 1887 for this purpose was $19,137,720.‘ The control over provincial legislation is the power of veto allowed to the dominion government, and the judgment of the courts in cases submitted to them in due course of law; mat- ters already considered in the review of the federal system. No authority is given, however, as is the case in some Ameri- can states to submit a question of constitutional jurisdiction ‘ to the provincial courts, though, as I have already shown, such a reference can be made to the supreme court of Canada.’ In the few states where such a constitutional provision exists, the judges regard the reference as calling upon them simply to act in an advisory capacity and guard themselves from being bound by their opinion, in case the same question comes up for argument and judgment in due process of law.“ The same principle, if I mistake not, has been laid down by the judges of the supreme court of Canada, when they have been called upon to give an opinion on private bill legislation of parlia- ment and other constitutional points of controversy. The practice has decided advantages if it can be carried out, and ‘ Canadian Handbook, by George Johnson, p. 92. ‘See supra, p. 66. ‘In Maine, New Hampshire, Massachusetts, Florida, and Rhode Island (Cooley, Constitutional Limitations, pp. 51, 52) “the legislative department has been empowered by the constitution to mill upon the wurfs for their opinion upon the constitutional validity of 3 proposed law, in order that, if it be adjudged without warrant, the legislature may abstain from enacting it.” This eminent authority doubts if such decisions can be entirely autis- factory, since they are made without the benefit of argument at the bar. They must, however, more or less operate as a check upon careless legisla- tion and are entitled to every consideration as coming from refiectivejudicinl minds. 595] Federal Govermcent in Canada. 139 it would be well to consider whether it cannot be adopted in the case of the provincial courts. Many cassw, however, con- stantly arise in the course of law, with respect to the compe- tency of the legislature to enact certain statutes; and every year sees the British North America Act made clearcr,- and supplemented by a number of valuable decisions which prac- tically enter into our constitutional system and make it more intelligible and workable. It is not necessary to dwell at greater length on the power of disallowauce than I have already done in the third lecture, but there is one question of some interest which requires 3. few words of explanation, or rather of comment, since it is not quite intelligible on sound constitutional principles. The British North America Act gives the lieutenant-governor, as well as the governor—geueral, the power to “reserve” and also to “veto” a bill when it comes before him.‘ The power of reserving bills is exercised by the govcrnor—general in very exceptional cases affecting imperial interests, but there is no instance in our parliamentary history since the concession of responsible government of the exercise of the veto—a royal prerogative, in fact, not exercised even in England since the days of Queen Anne. Lieutenant—governors not infrequently reserve bills, in all the provinces, for the consideration of the governor—general in council; and this is constitutionally justi- fiable; but the same functionaries in the maritime sections have occasionally vetoed bills of their respective legisla- tures. Their legal right is unquestionable, but it is a right clearly quite inconsistent with the general principles of British constitutional government which should govern us in all cases. In the United States, where the power of veto is given to the president, and to all the governors of the states, with only four cxwptions, the cabinet or executive officers have no responsibility whatever in matters of legislation, and the power ‘Secs. 55, 56, 90. 140 Federal Goeemwwnt 7’/n Canada. [596 generally operates as a useful check on the legislatures, which otherwise would be left practically without any control on their proceedings. In the Canadian provinces, however, the case is very different, for the ministry in each is responsible to the house and to the lieutenaimgovernor for legislation. If any bill should pass the houses despite their opposition as an administration, it is clear that they have more or less, accord- ing to the nature of the measure, forfeited the confidence of the peoplc’s representatives, and it would he a virtual evasion of their ministerial responsibility, for them at the last moment to advise the lieuten-ant~governor to intervene in their behalf and exercise his prerogative. He might well question their right to advise him at all, since they had shown they had not the support of the legislature of which they were a committee. In Ontario and Quebec no ministry has ever occupied so anomalous a position, and the only explanation that can be ot‘t‘ered for the existence of the veto in the other provinces is that by carelessness or ignorance, governments have per- mitted legislation, which the lieutenant-governor has found to be beyond the competency of the legislature or otherwise very olijectionable, and that he -has been forced to call the attention of his Cabinet to the fact and ask their advice. An executive council has, under thcseieiroiimstanccs (for I am speaking from authoritative information on this interesting point) felt itself bound to accept the situation and advise the disallowanoe of the bill. Under the peculiar circumstances that probably existed, the veto may at times have proved advantageous to the public interests; but looking at the nature of our government, it would be probably wiser to be content with the check which the constitutional not already imposes on improper legislation in a provincial legislature; that is, the general power of veto by the dominion government. It may be added that this is one of the cam in which a superior court in a. province might well be authorized to expras an opinion, as in certain American states, on the constitutionality of a measure before it passes 597] Federal Gaaemmm in Canada. 141 finally. The lieutenant-governor would then he placed in a less invidious position.‘ The judiciary, like its English prototype, evokes respect in every province of Canada, for the legal attainments and high character of its members. Entirely independent of popular caprice, and removable only for cause on the address of the two houses of parliament, it occupies a very advantageous position, compared with the same body in many of the United States. While the administration of justice, including the constitution, maintenance and organization of provincial courts, both of civil and criminal jurisdiction, is one of the matters within the purview of the legislatures, the government of the dominion alone appoints and provides the salaries of the judges of the superior, district and county courts, except those of the probate court in Nova Scotia and New Brunswick.’ It has ‘See Bourinoffs Parlianientnry Practice of Canada (pp. 578, 581) where this question is more fully discussed. ‘B. N. A. Act, 1867, sec. 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. 97. Until the laws relative to property and civil rights in Ontario, Nova. Scotia. and New Brunswick and the procedure of the courts in those pro- vinces are made uniform, the judges of the courts of those provinces ap- pointed by the governor-general shall be selected from the respective bars of those provinces. 98. The judges of the courts of Quebec shall be selected from the ban‘ of that province. 99. The judges of thcsuperior courts shall hold ofiice during good behavior, but shall be removable by the governor-general on address of the senate and house of commons. 100. The salaries, allowances and pensions of the judges of the superior, districL and county courts (except the courts of probate in Nova 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 hy the parliament of Canada. ‘ 129. Except as otherwise provided by this act, all laws in force in Canada, Nova Scotia or New Brunswick at the union, and all the eoum; of civil and crirnir-ml jurisdiction, and all legal commissions, powers and autliorilies, and all ofliccxs, judicial, administrative, and ministerial, existing therein av. the union, shall continue in Ontario, Quebec, Nova. Scotia and New Brunswick, 142 Federal Gwe/-nment in Cimwda. [698 been also decided that the dominion parliament is at liberty to create new courts, when public necessity may require it, for the better administration of the laws of Canada, or to assign to the jurisdiction of existing courts any further matters appropriate to their sphere of duty. For when legislating Within its proper bounds, that parliament is clearly competent to require existing courts in the respective provinces, and the judges of the same, who are appointed and paid by the do- minion, and removable only by address from the same par- liament, to enforce their legislation. Such an “exercise of authority constitutes no invasion of the rights of the local legislatures.” 1 In all the provinces there is a supreme court, or court of appeal ; and superior courts, known under the legal designa- tions of high courts of justice, court of‘ queen’s’ bench, or superior court. Besides these tribunals of complete civil and criminal jurisdiction, there are various other courts with infe- rior or special functions, known as county, district, surrogate or probate, maritime” and magistrates’ courts, all of whose respectively, as if the union had not been made ; subject nevertheless (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 and abolished, or altered by the parliament of Canada, or by the legislature of the respective province, according to the authority of the parliament or of that legislature under this act. 1 This judgment was given in the ease of Valin 12. Langlois, in which the validity of the dominion act imposing upon the judgw the trial of domin» ion controverted elections was questioned. See Can. Sup. Court Rep, Vol. III, p. 70. Also 5 App. Cas., 115. ‘The maritime court of Ontario is 2: dominion court, established by act of parliament, on account of the growing importance of the maritime busi- ness on the lakes. See Can. Rev. Stat, c. 137; Canada Law Times, Vol. III, pp. 1-13. Maritimejurisdiction over the high seas is a branch of international law which is administered throughout the British colonies by the imperial vice- admiralty courts established therein, See Todd’s Purl. Govt. in the Cole» nies, p. 188. 599] Federal G’ove1’mrLe’nt in Ca//zacla. 143 duties are defined by statute. So far as our circumstances have permitted, the changes in the organization and proce- dure of the English courts have been followed in the English- speaking provinces; and this is especially true of Ontario, where the judieatnre act is modelled upon that of England, and provides for a supreme court of judicature, consisting of two permanent divisions, called the high court of justice for Ontario, and the court of appeal for Ontario. The first divi- sion is again divided into three parts, queeu’s bench, chancery and common pleas. In Ontario, as in the other English pro- vinces, the recent practice of England has been followed, and though the title of chancellor, or judge in equity, still exists in some courts, there is a fusion oflaw and equity ; in the high court of justice in Ontario and in the supreme court in Nova Scotia, for instance. The law provides every legitimate facility for ap- peals from every inferior court in a province, and causes may be ‘ takenjniinediatcly to the privy council of England; or, as gen- erally happens, to the supreme court of Canada at Ottawa, previ- ously to going before the court of the last resort for the empire at large.‘ In the organization and procedure of the courts from the earliest times since Canada. became a possession of Eng- land, We can see how closely Canadians imitate her institutions in all respects. The names of the courts are for the most part identical. The justices of the peace who are still appointed by the crown, as represented by the lieutenant-governor in the provinces, date from the days of Edward III. As in Eng- land, there is no limit to the number that may be appointed in 3. district, and consequently in some of the provinces the priv- ilege has been oflxen abused by different governments, in order to satisfy the petty ambition of their friends and supporters. The courts of quarter or special sessions, which were held by the magistrates for the trial of certain causes, but especially for the imposition and expenditure of local taxes in counties, long existed in all the provinces; but with the establishment ‘See supra, 13. 66. 144 Federal Government ‘in Canada. [600 of municipal institutions and the organization of county and other courts, they have practically disappeared from the legal structure, although relics of their powers still exist in the province of Quebec, where the recorders of , Quebec and Mon- treal are judges of sessions, and in the general sessions of the peace in Ontario. The criminal law of England has prevailed in all the pro- vinces since it was formally introduced by the proclamation of 1764, and the Quebec act of 1774. The French Canadians never objected to this system of law, since in many respects it was more humane and equitable than their own code. The civil law, however, has continued to be the legal system in French Canada since the conquest, and has obtained a hold now in that section, which ensures its permanency as an insti- tution closely allied with the dearest rights of the people. Its principles and maxims have been carefully collected and en— V acted in a code which is based on the famous code of Napo- leon. The rules of procedure relating to the civil law have also been formulated in a distinct code. ’.l.‘he civil law of French Canada had its origin like all similar systems, in the Roman law, on which were cngrafted, in the course of cen- turies, those customs and usages which were adapted to the social condition of France. The various civil divisions of France had their special usages, which governed each, but all of them rested on the original basis of the Roman law, as compiled and codified under Justinian. The customary law of Paris became the fundamental law of Canada, and despite the changes that it has necessarily undergone in the course of time, its principles can still be traced throughout the present system as it has been codified of late years. The French civil law lies been materially modified since 1763, by contact with the English laws and customs, and by the necessities and cir- cumstances of a new country; but still, despite all the amend- ments and modifications it has undergone in order to make it more in consonance with the conditions of modern life and the needs of commerce and enterprise, it displays in their 601] Federal Goeernmmt in Canada. 145 integrity all those important principles which have the sanc- tion of ages in all those countries where a similar system pre- vails, and which touch the civil rights of individuals, the transfer of property, marriage and inheritance, and other mat- ters of vital interest to all persons in a community. In the other provinces the common law of England forms the basis of’ their jurisprudence. Its general principles were brought into this country, as into the United States, by the early colonists as their natural heritage ; but they never adopted those parts of the law which were not suited to the new condition of things in America. It is a system replete with the principles of individual liberty and selflgovernment and giving large scope to enterprise and energy in coloniza- tion. In addition to the body hf the common law, Canada has also availed itself of those statutes which have been framed in England from time to time, in consonance with the condition of things to which the old niaxims of the law could not apply. The establishment of legislatures in the provinces, we have seen, was only a little later than the entrance of the large British population, and it was therefore in their power to adapt English statutes to the circumstances of this country at the very commencement of our history, or to pass such enact- ments as were better suited to the circumstances of the coun- try. Thus it happens that gradually a large body of Cana- dian statutory law has been built upon the common law base of the legal structure, and with a View of making the law more intelligible, it has consequently been wisely ordered, at difi”erent times since 1854, that all these statutes should be revised and consolidated by commissions composed of learned lawyers and judges. The people of the dominion and of all the provinces have now easy access to the statutory law that governs them within the respective constitutional limits of the parliament and the legislatures. It is also found convenient in the intervals between the consolidations of the statutory law to collect together, from time to time, all the enactments on a particular subject and incorporate them, with such amend- 146 Federal Gouemmem in Cimacla. [602 ments as are found necessary, in one statute. This has been found especially useful in the case of laws affecting railways, insurance companies, the territorial government, and other matters of large public import. The other advantage of this practice lies in the fact that it lessens the labor of a greater consolidation ata later period. The criminal law has been consolidated in this way and forms a distinct code. While it is only in Quebec that there is a system of muni- cipal or civil law distinct from the common law, there are at the same time in all the other provinces certain differences in the statutory law, afi”ecting civil rights and property, that have grown up from the commencement of their history as separate political entities, until the present time. But as the principles that lie at the basis of their private law are derived fi’0m the same source of law and are in the main identical, the authors of the constitution have granted a general authority to the parliament of the dominion to give uniformity, at any time, to the laws relative to property and civil rights in Ontario, Nova Scotia and New Brunswick ; but in case of parliament making such provision, it shall not have any effect until it is formally ratified by the legislatures.‘ No efibrt has been made so far in this direction, and it is now hardly probable that the provinces would be Willing to sanction such a radical change, since it would give parliament thenceforth unrestricted powers over property and civil rights. The provinces having had the enjoyment of their jurisdiction for so many years and seen how ‘B. N. A. Act, 1867, sec. 94. Notwithstanding anything in this act, the parliament of Canada may make provision for the uniformity of all or any of the laws relative to property and civil rights in Ontario, Nova Sootia and New Brunswick, and of the procedure of all or any of the courm in those three provinces, and from and after the pusing 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 set of the parliament of Canada. making provision for such uniformity shall not have efl”ect in any province unless and until it is adopted and enacted as law by the legislature thereof. 603] Federal Government in Canada. 147 closely it is identified with provincial rights and interests, would hardly now consent to place themselves in a position of entire subordination, in this important respect, to the dominion government. The position of the judiciary of Canada may be compared with that of the federal judiciary of the United States, since the latter has a permanency and a reputation not enjoyed by the courts of all the states. The president appoints, with the approval of the senate, not only the judgw of the supreme court at Washington, but the judges of the circuit and district courts. In the majority of the states, however, the judges are elected by the people, and in only four cases is there a life tenure. The average term of a judge’s official life in that country is from eight to ten years,-‘ but there have been no instances of removal during that term, while they have faith- fully discharged their functions. As in Canada, judges may be removed, in thirty states, upon an address of two—thirds of each branch of the legislature. Their salaries are not large: the judges of the supreme court of the United States receive $10,000 each and the chief justice $500 in addition; of the circuit courts, $6,000 ; of the district courts, from $3,500 to $4,000; of the supreme courts in the states, from $1,500 to $2,000 ; the average being from $4,000 to $5,000} All writers , who have studied the relative positions of the American judi- ciary agree that the influence of the elective system, of short tenure, and of small salaries has not been always favorable to the standard of the bench in the several states. The small salaries especially deter lawyers of conspicuous ability and large practice from accepting such positions. The supreme and circuit courts of the United States, however, occupy a vantage ground from their permanency and the nature of their functions, which embrace a wider sphere of study and interest. On the whole, however, with all the disadvantages under which the state judiciary labors, it is generally admitted that the dignity ‘See Spoflbi-d’s American Almanac, 1889. l48 Federal Govemmervt in Q1/ILada.. [604 of the otfice, and the general respect for the law———an inheritance from their British ancestors——tend to act as a counterpoise to the influences of which I have already been speaking. In Canada the salaries are even less than. in the United States, and there are also inequalities between the prov- inces, which ought to be removed, and salaries generally increased. The judges of the supreme court of Canada receive $7,000 each, and the chief justice $8,000 ; the chief justices in Ontario and Quebec $6,000, and the judges of the superior court from $55,000 to $3,500 ; the chief justices in the other pro- vinces $5,000, and the judges $4,000, except in Prince Edward Island where the amounts are $4,000 and $3,200. The county and district judges only receive from $2,000 to $2,400-too small a sum for a hard worked class—but in the case of these and other judges there are sufficient sums allowed for travelling expenses. On their retirement they are entitled to a consider- able annuity fixed by law. Although the salaries are small compared with what a leading lawyer can make at the bar, yet the freedom of the oificc from popular caprice, its tenure prac- tically for life, its high position in the public estimation, all tend to bring to its ranks men of learning and character. Since those deplorable times in Canadian history when there was a departure from the wise principle of having the executive and legislative department in separate hands, the bench has evoked _ respect and confidence; and there have been no cases of the removal of a judge on the address of the two houses. It says much for the different governments of Canada, and especially for the present premier‘ who, more than any other Canadian statesman, has had the responsibility ofsuch important appoint- ments through his long tenure of otfioc, that they have never been led for political reasons to lower the standard of the bench by the elevation of’ improper persons. Such positions are not necessarily given as 2. reward for political services; for in numerous instancm the ablcst men have been chosen from ’ The Right Honorable Sir John A. Macdonnld, P. C., G. C. B. v 605] Federal Government in Canada. 149 the bar without reference to their political status. The legis- lative arena, however, necessarily attracts not a few of the finest intellects of the bar in all the provinces, and the very experi- ence they there gain of legislation is undoubtedly favorable to their usefulness, should they, as often happens, accept the dig- nified and relatively comfortable (that is compared with active political life) position of a seat on the bench in whose merito- rious history all of us take a very proper pride. I must now direct your attention briefly to the important place occupied by local selflgovernmexit in the provincial structure. In the days of the French regime, as I have already shown you, a system of centralization was established by Louis Quatorze, who so piiilessly during his reign enforced “ that dependence which,” as Saint Simon tells us, “reduced all to subjection,” everything like local freedom was stifled, and the most insignificant matters of local concern were kept under the direct control of the council and especially of the inteudant at Quebec. Until 18-11 the legislature of Quebec was practically a municipal council for the whole province, and the objection of the Iiabitrmts to any measure of local tax- ation prevented the adoption of a. workable municipal system until after the union of 1841. In Upper Canada, however, the legislature was gradually relieved of many works and mat- ters of local interest by the adoption of measures of local gov- ernment which infused a spirit of energy and enterprise in the various counties, towns and cities. The union of 1841 led to the introduction of municipal institutions in both the pro- vinecs, in conformity with the political and material develop- ment of the country. By 1867 there was an exceedingly lib- eral system in operation in Upper and Lower Canada, but the same thing cannot be said of the maritime provinces. It has been only within a few years that the legislatures of Nova Scotia and New Brunswick have organized an ef‘l’ective muni- cipal system, on the basis of that so successfully adopted fora long time in the larger province. In Prince Edward Island, however, matters remain pretty much as they were half a cen- « 150 Federal G’ove1‘7Lment 1711 Canada. [606 tury ago, and the legislature is practically a municipal council for the whole island. At the present time all the provinces, with this one exception, have an excellent municipal code, which enables every defined district, large or small, to carry on efliciently all those public improvements essential to the comfort, convenience, and general necessities of the difi”erent communities that make up the province at large. Even in the territories of the N orth—west, every proper facility is given to the people in every populous district, or town, to organize a system equal to all their local requirements.‘ The municipal institutions of Canada are the creation of the respective legislatures of Canada, and may be amended or even abolished under the powers granted to that body by the ninety-second section of the fundamental law. The Various statutes in force establish councils composed of wardens, reeves, mayors, and councillors or aldermen, in every county, town- ship or parish, town and city in the provinces. These coun- cils arc representative in their nature, in accordance with the principle that rests at the basis of our general system of local government. ‘The wardens and reeves are elected as a rule by the council, and the mayors directly by the rate payers in cities. The powers and authorities of the various municipali~ ties are regulated by general statutes, but there are also special acts of incorporation in the case of many cities and towns. These various municipal organizations have the power of im- posing direot taxes for municipal purposes, including public schools, and all other objects that fall within the legitimate scope of their local requirements. Taxation is limited to a certain rate on the dollar, and is imposed on real property, as Well as on bonds, stocks, and other personal property, and on incomes in the province of Ontario. All the municipalities have large borrowing powers, and the right to issue debentura to meet debts and liabilities incurred for necessary improvements, or ‘See l3ourinot’s Local Government in Canada, in Johns Hopkins Uni« varsity Studies. 607] Federal Govemment in Canada. 151 to assist railways of local advantage. This power of assisting railways by subsidies has been largely used, though chiefly in Ontario; by the end of 1884 the municipalities had already paid $12,472,000 to secure railway communication. The councils, however, cannot directly grant this aid, but must pass by—laws setting forth the conditions of the grant and the means of meeting the prospective liabilities, and submit them to the vote of the rate-payers, of whom a majority must ap- prove the proposition. The reference to the people at the polls of such by—laws is one of the few examples which our system of government offers of a resemblance to the 7‘ey“erencZ1//In of laws passed by the Swiss federal legislature to the people for acceptance or rejection at the polls. It is a practice pecu- liar to municipal bodies, though the same principle is illus- trated in the case of the Canada Temperance Act, which was passed by the dominion parliament, and can only come into operation with the consent or at the option of the community to which it is referred, in accordance with the provisions laid down in the statute. Even after it has been adopted it may also be repealed by submitting another by-law to the people immediately interested, as in fact we have seen done in so many cases during the last few months, on account of the unpopularity or the unsatisfactory operation of the law. It is an interesting question how far it is competent for a legis- lative body entrusted with the power of making laws to refer the adoption or rejection of a general law like that of the Temperance Act to the people of the whole province or of a particular district. A very high American authority has well said that “ it is not always essential that :1 legislative act should be a competent statute which must in any event take effect as law at the time it leaves the hand of the legislative department. A statute may be conditional, and its taking effect may be made to depend upon some subsequent event.” The highest courts have declared this local option law of Canada as within the competency of parliament under the powers granted it by the constitution, but in any case it does not appwr to be any surrender of the lawanalring power to 152 Federal Gooemment in Comocla. [608 submit simply the question of its acceptance to the voters of the locality especially interested in such questions. To cite again the eminent author just quoted: “A ffirmative legislation may in some cases be adopted, of which the parties interested are at liberty to avail themselves or not, at their option. A private act of incorporation cannot be forced upon the corporation; they may. refuse the franchise if they so choose. In these cases the legislative act is regarded as complete when it has passed through the constitutional formalities necessary to perfect leg- islation, notwithstanding its actually going in operation as law may depend upon its subsequent acceptance.” The necessity of submitting by—laws to the people in a mu- nicipality, however, rests on the constitutional authority of the legislature Which, in the general law passed for the regu- lation of‘ municipalities, has thought proper to provide such means of reference to the rate-payers of a locality. On gen- eral principles, indeed, the powers of legislation bestowed in this way on municipal corporations cannot be considered “as trenching upon the maxim that legislative power must not be delegated, since that maxim is to be understood in the light of thc immemorial practice of this country and England, which has always recognized the propriety and policy of vesting in the municipal organizations certain powers of local regulation, in respect to which the parties immediately interested may fairly be supposed more competent to judge of their needs than any central authority. As municipal organizations are mere auxiliaries of the state or provincial government in the important business of municipal rule, the legislature may create them at will from its own views of propriety or necessity and without consulting the pal‘tl(£ interested ; and it also pos~ sesscsthe like power to abolish them, without stopping to inquire what may be the desire of the corporation on that subject.” ‘ 1All these citations are from Cooley’s Constitutional _Li1-nitations (pp. 139-148) where the whole subject is fully discussed. His remarks apply to Canada as well as to the United States. 609] Federal Government in Canada. 153 Of the right of the provincial legislatures to delegate powers specially given them by the constitution to any body . or authority also created. by themselves, we have a decision of the privy council in the ease of the liquor license act of Ontario (the most important yet given by that tribunal on the constitutional jurisdiction of the provinces), which authorized certain license commissioners to pass resolutions regulating and determining within a municipality the sale of liquors.‘ The maxim delegams mm poiest delegwre was distinctly relied upon by the opponents of the measure, but the judicial com- mittee emphatically laid down that such an objection is founded on an entire misconception of the true character and position of the provincial legislatures. VVithiu the limits of its constitutional powers “ the local legislature is supreme and has the same authority as the imperial parliament, or the par- liament of the dominion, would have had under like circum- stances to confide to a municipal institution or bodypof its own creation authority to make by—laws or resolutions as to the subjects specified in the enactment, and with the object of carrying the enactment into operation and effect.” Such an authority is, in their opinion, “ ancillary to legislation, and with out it an attempt to provide for varying details and machinery to carry them out might become oppressive or absolutely fail.” A legislature in committing important regulations to agents or delegates, it is decisively stated, does not by any means eii”aee itself; for “it retains its powers intact and can, when- ever it pleases, destroy the agency it has created and set up another, or take the matter directly into its own hands.” And how far it “shall seek the aid of subordinate agencies, and how long it shall continue them, are matters for each legisla- ture, and not for courts of law, to decide.” 2 1 See supra, p. 54. “Sec 9 App. C215,, 117 ; or Legal News, Vol. VII. p. 23. The 1earncdjudg- ment of the Ontario court of appeal in this famous (xise contains abundance 11 154 Federal Government in Canada. [610 The power of passing by—laws and imposing taxation accord- ingly gives to the various municipal councils of the provinces a decided legislative character. The subjects embraced within their jurisdiction are set forth with more or loss distinctness in the municipal acts of the provinces, especially of Ontario. The council of every township, city, town or incorporated vil- lage may pass by-laws for the construction and maintenance of waterworks, the amounts required to be collected under local iinprovernent by»laws, licensing and regulating transient traders, the purchase of real property for the erection of public school houses thereon, cemeteries, their improvement and pro~ tection, cruelty to animals, fences, exhibitions and places of amusement, planting and preservation of trees, gas and water companies, public morals, giving intoxicating liquor to minors, nuisances, sewerage and drainage, inspection of meat and milk, contagious diseases, fevers, prevention of accidents by fire, aiding schools, cndowing fellowships, markets, police, indus- trial farms, charities and numerous other subjects immediately connected with the security and comfort of the people in every community.‘ The most important duty of every municipality, especially in the cities, is the imposition and collection of taxes. The burden of taxation is on real property, and the difficulty is felt in the same measure in Canada as in the United States of obtaining accurate returns for taxation pur- poses, of all intangible property in the shape of bonds, mort- gages, and other securities held by individuals. The same may be said of returns of incomes, except in the case of public ofi’icials and clerks, of whose salaries it. is easy to obtain information.’ The statistics of this kind of property, of precedents for legislation entrusting a limited discretionary authority to others, and gives many illustrations of its necessity and convenience. ‘See Rev. Stat. of Ontario, 1887, chap. 184, for examples of the large powers cntmebed to municipalities in probably the best constructed muni- cipal system. in the world. ‘The oflicial incomes of the oficers of the dominion government cannot be taxed by the provinces or the nnmicipnlities thereof. Leprohou 1:. City of Ottawa, 2 App. Rep. Out, 1). 522. 611] Federal Gore?”/L7Iwnt in Canada. 155 as given in assessment rolls, are very unreliable. For instance, we find that while the assessed value of real prop— erty in Ontario increased from $325,484,116 in 1873 to $583,231,183 in 1883, the assessed value of the personal property only increased during the same period of prosperity from $49,010,772 to $56,471,661; and it must be ren1en1bere(l that the assessors, especially in rural districts, generally place the value of real property at a low rate. The exemptions from taxation comprise all government and public property, places of worship and lands connected therewith, and a great number of buildings occupied by scientific, educational, and charitable institutions. In the province of Q,ucl>ee, where
the Church of Rome has accumulated a vast amount of valu-
able property, especially in and near Quebec and on the island
of Montreal, the value of exemptions is estimated at many
millions of dollars. In Ontario an agitation has commenced
against the continuance of a law which restricts the assessment
in certain localities to relatively narrow limits, but the religious
and other interests that would be effected are likely to prevent
any change for a long time to come. In Quebec it is quite

The municipal system on the Whole is creditable to the
people of Canada. It has its weaknesses, owing in some
measure to the disinclination of leading citizens, especially in
the cities and large towns, to give much of their time to mu-
nicipal duties, although every person is so deeply interested in
their eliicient and honest performance. Johbery and corrup-
tion are, however, not conspicuous characteristics of municipal
organizations in the provinces; and we have no examples
happily in our history at all inviting comparison with the
utter haseness of the Tweed ring in New York. In the rural
municipalities of Ontario there is a greater readiness than in
the large cities to serve in the municipal councils, and as I
have already shown, those bodi and practical men to parliament. On an elfeotive system of
local self-government rests in 2. very considerable degree the

156 Federal Government in Canada. [612

satisfaetory working of our whole provincial organization. It
brings men into active connection with the practical side of
the life of a community and educates them for a larger though
not more useful sphere of public life.‘

The Territories of Canada, to whose organization I must
now refer, comprise a vast region stretching from the province
of Manitoba to the Rocky Mountains, and from the frontier
of the United States to the waters of the North. It embraces
more than two—thirds of the dominion, probably 2,600,000
square miles, and is watered by the Red, Saskatchewan, Assi-
niboine, Peace, Mackenzie and other rivers of large size and
navigable for the most part by steamers of low draft. This
region came into the possession of Canada by a purchase of
the rights of the Hudson’s Bay Company,‘ who had so long
enjoyed a monopoly of the fur trade, and used their best eiI’orts
to keep it a term incognito. The government of the dominion
now holds complete jurisdiction over the territory, out of
whose fertile lands must, sooner or later, be developed ten or
twelve provinces as rich and prosperous as any of the great
north-western states. The provisional district of Kecwatin
was formed some years ago out of the eastern portion until
the settlement of the boundary dispute between Ontario and
the Dominion ; but since that question was settled it has only
21 nominal existence, though it still remains under the super~
vision of the lietitenantrgovernor of the province of Manitoba.
In 1882 a. large portion of the n0rtl1—west region was divided

1“ I have dwelt,” says John Stuart Mill, in Representative Government,
ch. xv, “in strong language on the importance of that portion of the ope-
ration of free institutions which may be called the public education of the
citizens. Now of this education the local administrative institutions are
the chief instruments.”

‘B. A. Act, 1867, see. 146, provides for admission of Territories. See
also Imp. Stat, 31 and 32 Vict., c. 105, (Can. Stat. for 1869); Can. Coxn«
mons Jour., 1869, pp. 149, 156; Can. Stat, 32 and 33 Vict, c. 3 ; Imp. Sl:2.t.,
34 and 35 Vict., c. 28.


613] Federal Govemmievzl in Canada. 15:

into four districts for postal and other purposes.‘ Assiniboia,
now the nbst populous district, contains about 95,000
square niihn; Saskatchewan, 114,000; Alberta, 100,000 3
and Athabasca, 122,000. Beyond these districts lies an im-
mense and relatively unknown region, watered by the Peace,
Slave and Mackenzie rivers, and believed to be capable of
raising cereals and supporting a large population. The total
number of settlers, who have mostly come into the country
within six years, does not exceed forty thousand souls,
scattered over a wide region; but villages and towns are
springing up with great rapidity throughout the west, and
immigration is flowing over the rich wheat—produeing prai-
ries of the district of Assiniboia. The authorities at Ottawa
control the government of the territories. Until the win-
ter of 1888, they were governed by a lieutenant-governor
and council, partly nominated by the gcvernor—genera.l in
council and partly elected by the people. In the session of
1888, the parliament of Canada passed an act granting the
territories a legislative assembly of twenty-two members, but
they do not enjoy responsible government like the provinces.
The 1ieutenant—governcr, who is appointed by the governor in
council, for four years, has, however, the right of choosing
from the assembly four members to act as an advisory council
in matters of finance. Three of the judges of the territories
sit in the assembly as legal experts, to give their opinion on
legal and constitutional questions as they arise; but while they
may take part in the debates they cannot vote. The assembly

‘B. N. A. Act of 1871 (amending that of1867 in order to remove certain
doubts as to the powers of Canadian parliament) enacts:

2. The parliament of Canada may from time to time establish new pro—
vinecs in any territories forming for the time being part of the Dominion of
Canada, but not included in any province thereof, and may at the time of
such establishment make provision for the constitution and administration
of any such province and for the passing of laws for the peace, order and
good government of such province, and for its repraentation in the said

158 Federal Government in Canada. [614

has a duration of three years and is called together at such time

as the lieutenant-governor appoints. It elects it!’ own speaker ‘

and is governed by rules and usages similar to those that pre-
vail in the assemblies of the provinces. Each member receives
$500, the legal experts $250, a session, besides an allowance for
travelling expenses. The parliament of Canada provides nearly
all the funds necessaryfor carrying on the government and meet-
ing necessary expenses for local purposes. The elections are by
open voting; the electors must be bondfidc male residents and
householders of adult age, who are not aliens or uuenf‘ran—
chised Indians, and who have resided within the district for
twelve months before the election. The civil and criminal
laws of England are in force in the terrritories, so far as they
can he made applicable; and the lieutenant-governor and
assembly have such powers to make ordinances for the gov-
ernment of the North—\vest’ as the governor-general in council
confers upon them; but their powers cannot at any time
exceed those conferred by the constitutional act upon the pro-
vincial legislatures. There is a supreme court, composed of
five judges, appointed by the Ottawa government, and remov-
able upon the address of the senate and house of commons.
The court has, within the territories, and for the administration
of the law, all such powers as are incident to a superior court
of civil and criminal jurisdiction.‘ The territories are rep-
resented in the senate by two senators and in the house of
commons by four members, who vote and have all the other
privileges of the representatives of the provinces. In this
respect the territories of Canada enjoy advantages over those
of the United States territories, which are not represented in
the senate, but have only delegates in the house of representa-
tives withcut the right of voting. Year by year, as the popula—
tion increases, the people must have their political franchises
enlarged. The time has come for introducing the ballot, and
the inhabitants are an exceedingly intelligent class, drawn for

1 Con. Rev. Stat, clis. 7, 50; Can. Stat, 1887, ch. 3; 1888, ch. 19.

615] Federal Goeernmanif in Cimadcz. 159
the most part, so far, from Ontario and the other English
provinces, and are in every way deserving of governing
themselves in all local matters, with as little interference as
possible from the central authority.

There are in the territories some 30,000 Indians, chiefly
Assiniboines, Crees, Bloods, and Blackfeet, in various stages of
development. They are the wards of the Canadian government,
which has always exercised a paternal care over them. They
are fed and clothed in large numbers. Before lands were laid
out for settlement, the Indian titles were extinguished by trea-
ties of purchase, conducted between the representatives of ‘the
dominion and the councils of the several tribes. The Indians
live on reserves set apart for them in valuahle districts; schools
and farm instruction are provided by the government, with
the creditable hope of making them more useful members of
the community. Agents live on the reserves, and inspectors
visit the agencies from time to time to see that theinterests of
the Indians are protected in accordance with the general policy
of the government. The sale of spirituous liquors is expressly
forbidden in the territories, chiefly with the view of saving the
Indians from their baneful influences.‘ The liberal policy of
the government with respect to the Indians is deserving of
the encomiums which it has received from all those who have
studied its operation. So far as I can judge from careful in-
quiry, the effects of the poliey are on the whole excellent, and
Indians generally are every way gaining greater confidence in
the government of the country. Of course it is difiieult, if not
impossible, in the great majority of cases, to make a decided
radical change in the habits of the older Indians, and educate
them to become competitors of the White man in industrial
pursuits; but it is gratifying to find that so large a number
are already tilling the soil with a moderate and, for them, an
encouraging measure of success. The schools established by
the government are well patronized, and on all sides, in short,

‘See Can. Rev. Stat, e. 43, regulating all matters respecting the Indians.

160 Federal Government in Canada. [616

I see much hope for the future generations of the Indian race
in the territories of Canada. At all events, good must con-
tinue to arise from the operation of the established policy, and
Canadians will always feel that they have done their duty
towards a race which has never in the past been treated with
similar generosity and kindness in the territories of the United

A federal government controlling all matters essential to
the general development, the permanency, and the unity of
the whole dominion, and several provincial governments hav-
ing complete jurisdiction over all subjects intimately connected
with the comf’ort and convenience, the life and property, the
happiness and prosperity of the various communities of people
that dwell within the limits of these local organizations; these
are the dominant features of the federal structure. Elements
of weakness may exist in the financial basis on which the struc-
ture rests, and in the veto power given to the central authority
over the acts of the provincial governments, The upper houses
of the legislatures have none of the strength and influence of’
the senates of the United States, and can exercise, under their
present constitution, relatively little of that control over the
legislation of a popular house which may be found useful at
critical times. Apart from what are considered constitutional
defects and sources of confiict between the central and provin-
eial authoritiw, there are other conditions of their political
system which may awake serious apprehensions in the minds
of thoughtful publicists and statesmen. An eminent English
thinker, Professor Seeley, has said that “there are in general
three forces by which states are held together, community of
race, community of religion, and community of interest.‘
When we come to make an application of this doctrine to
Canada, we see that there is one large provinw under the
direct, practically unrestricted, control of a large and rapidly
increasing population, speaking a language, professing a reli-

‘ Expansion of England, 1:. 50.

617] Federal (}over’n7nen£ in Canada. 161

gion, and retaining certain institutions, different from those
of the majority of the people of the dominion. I have already
shown the remarkable influence this French race has naturally
exercised over the conditions of our political existence, and in
the formation of our constitutional system. From time to
time in our history such antagonisms as must always arise
when there are racial and religious differences in a commu~
nity, have shown themselves with more or less intensity. As
I have already shown in the first lecture, this antagonism led
to unhappy results in our early annals, and left a sad blot on
our political history. In these later times, with the develop-
ment of civil liberty and with a wiser understanding of the
principles that should govern communities, living under the
same system of government, the instances have been few and
relatively unimportant, when a conflict of opinion has arisen
between the two races that inhabit Canada. Our political
history for half a century has been eminently creditable to the
good temper, patience and nioderation of the leading men in
French as well as in English Canada. At critical moments
conciliatory counsels have invariably prevailed in the end
over the dictates of unreason and passion. All people and
communities within the dominion have already learned that
in the parliament they can always find every consideration
and justice given to their fair and legitimate claims. No
one can foresee the time when an amalgamation of the two
races will be possible, when the language and institutions
of French Canada will disappear. It may be there are those
in English Canada who regret that there are no signs as yet
of such an eifacement. It seems inevitable that the great
energy and colonizing capacity of English speaking peoples
will obtain the supremacy, and open up and control the pro-
Vlnces that must soon be carved out of the‘ great territories of
the Northwest; and the French Canadian race will find itself
in a far smaller minority than at present. But there is no
reason to suppose that it will ever cease to be an important
influence in the confederation, which the Canadians, irrespec-

162 Federal Gavemwwnt in Ctznada. [618

tive of race and religion, are establishing in a. continuous line
of provinces from the Atlantic to the Pacific shores. Though
there are dilferences in language and certain institutions be-
tween the French and English Canadian peoples, yet there is
an equal community of interest between both. Our history
for more than a century gives us very clear illustrations of the
thorough appreciation that both races have of this identity of
interest. They have labored with equal patriotism to build
up the confederation and develop its resources. The results
of this union of races in the work of strengthening and pro-
moting thc welfare of the dominion has so far been eminently
encouraging. A large intcrcolonial trade has been developed,
railways have spanned the continent, and public works of
equally national importance have been completed, and numer-
ous other measures passed, all in the direction of consolidating
the union. The foundations of a new nationality have been
already laid by the common efforts of the two races, united as
they are by the strong ties ofa common interest; and as long
as they continue to pursue the same wise policy of mutual
compromise and mutual forbearance on all occasions of differ-
ence, it is impossible to exaggerate the possibilities that seem
open to a dominion in the possession of institutions so fully
worthy of the respect and confidence of its people.


0 F

Johns Hopkins University Studies




Adams, Dr. H. B., 195,- quoted, 199,
205, 212, 230, vii—i):, 41, 110.

Adams, Judge S. W., vii-—ix, 4, 5.

Agawam, visited by men from New-
town, vii—ix, 12.

Albemarlc Academy, 202.

Alcalde, 82, 83. 85, 93, 101 ; functions
09 86, 96, 97, 98, 101; oflice of,
abolished in San Francisco, 111;
restored, 115; abolished by charter
of 1850, 132; in Louisiana, 164-.

Andrews, Judge, quoted, vii—ix, 121.

Andrews, Charles M., on the river
towns of Connecticut, vii—ix.

Assembly, legislative, of San Fran-
cisco, 107 ff‘.

Atkinson, %0.

Atwater, E. E, quoted, vii—ix, 55.

Auxiliary Sanitary Association, in
New Orleans, 185.

Ayuntamiento, 84, 85, 87, 88, 89, 90,
91, 100; functions of, 86; abolished
in San Francisco, 108; restored,

1:133’; abolished by charter of 1850,
1 .4.

Bacon, Sir Francis, quoted, 24.
Bancroft, George, message of, to Chm-

modure Sloat, quoted, 93.
Barbour, James, 241.

Barbour, P. P., 241; offered law pro-
fessorship, 311.

Barlow, Peter, 287, 295, 299.

Barnett, Rev. S. A., 24; and the Uni~
vgrséty Colony in East London, 58,
5., 0.

Bartlett, Liam. VV. A., 95, 99.

Berkeley, Bishop, 302.

Berlin, Connecticut, vii—ix, 75, 76.

Bienville, founds New Orleans, 160.

Biioxi, settled, 159.

Birkbeck, J)r. George, assists Gilmer,
287), 292, 300; and the University
of London, 298.

Blaettermann, Dr. George 292, 313;
engaged as professor in linivcrsity
of Virginia, 244, ‘Z45, 24,6, 305.

Blake, quoted, vii—ix, 107.

Blake, Him. Edward, quoted, 497, 504,
509, 537, 580, 581.

Blok, Adrian, explores Connecticut,
vii—ix, 10.

Bloomfield, vii—ix, 75, 76.

Bond, quoted, vii—ix, 43.

Bondelier, quoted, 96.

Bonnycastle, Charles, 287; made pro-
fessor in University of Virginia,
299; arrives, 311; transferred to
Kcy’s chair, 313.

Boston. amrier, quoted, 307.

Bourinot, Dr. John G., on federal
government in Canada, 4_57~6]8_;
quoted, 485, 504, 511, 514, 923, ssa,
597, 606.



Bowditch, Nathaniel, 212.
Bozniziii, J. ‘L, quoted,_ —ix, 4}.
Br£idl1‘3Ird,lXilli:in:, (\;l1;lX1,(7; letter of,
o inui quo e , a.
Breckini-idgie, fl[rs. E.,’196.
Breclr ridge, James, 209.
Br(iéisli C0ll3mb)lfl, union with, 582.
‘ee Czinzi a.
British North )America. Act, 1867.
(§ee Caiiatla.
Brtick, 3. A, 217.
Ikookenborcugli, Wm., 241.
Bronson, Dr. Heiiry, quoted, vii—ix,
79 84, 36.
Bl‘I()ligliziul2, Iieiirg, 3:3, 245<.i2sI;2, £393 ,-
ettero quote ; an tie ni~
versity of London, 298. ‘
Brown, Hon. George, quoted, 529, 553.
Bl‘571C§, :1 éiangeé Bquoted, 517, 621, 523,
i o . .
Bucarlzli, S2tl]fI;l‘<’ll’l(3lSCO founded at
command 0 5.
Bneliamin, George, 269, 270.
Burke, quoted, 24.
Bus!-nett, P. H., 126, 1130; nml U196
‘an Francisco town 01:: 126 12 .
Burwell, Wm. A., 220. i ’
Butler, Chief Justice, quoted, vii—ix,
I21 122. ‘
Butlei-, Dr. Samuel, 28].


Culiell, Joseph 0., 203, 309 ,- and
the University of Virginia, 203 if;
quoted, 213, 237; negotiates witli
Tucker, 307; suggestions of, as to
law professorship, 311.

Czlllell, Cb}. Nicliolus, 203.

Cabildo, establislicd in Louisiana,

California, local government of, un-
der old régime, 80 fl’. ; constitu—
tional convention of 1849, 125.
(See also San l~‘r’«i.ncism.)

C’«I11,3f0r1Lia.Sta:’, quoted, 97, ‘J9, 100.

Campbell, Thomas, 303,- letter of,
quoted, 297; and the University
of London, 298.

Campbell, ‘l‘lioni:is Telford, 297, 298.

Cziumla, federal government in, J.
G. Bonrinot on. 4-57-618; French
period, 464~469; transition period,
469473; proclamation of 1763,



470; Quebec net, 471; el3″ect_ol
coming of loyalists, 47?; third
period, 473-478; Constitziti0nalA}:t
of 1791, 473; dllfi§lllél(Z8S—Vj§g6I‘ it,
474; fourth perio 7 ‘ act
of 1841, 478; adoplion of Biiilisli
North America. Act 482’ genera
features of tlie federiil system, 485~
532; pD]’)Ul8.l/lC1)Il, etc., 4864,-glgeztding
principles of t ie systciii – con-
stitution partly un\vrilten,’489;
amendments of the act, now for
possible 49lA~ position of Canada.
in the lflmpiire, 492; relations of
dominion and provincial govei~}n-
ems 500—524- powers of tie
gnarliainent, 501;’ of the provincial
legislatures, 503; education, 505;
concurre_nt‘po\vera, 507 ; insurance,
508; criminal law, 508; temper
unce, 509; disputes under the it
compared with those under Con i
tntion of United States,51l ; right
to interfere in cases of property
and civil rights, 513; veto power
gfigovernor in counicil, 51.4; ‘courts,
~ zernimcn an provmeia rev-
enues, 524; general considemtioiis,
531; the government and the pnr~
liument, 533~o76; the separation
of depzii-tinents, 533, 546-548; the
ggvernlor-general, ; the counctil,
V ~ t ie ireinier ; ie senn e
549; the lower house, 5-35; parlia:
menta.r_v independence, 562; elec-
toral corruption, 563; methods of
business é|g;[5p3l‘ll£1bl’il‘BDC, £364; corp-
mittees, ; pu 1c an privae
bills, 566; supply, 568,- nlotious
and inquiries, 570; debate, 5:2,-
Voling, 574; the civil service, §?4;
the provinces, 577-618; division
into provinces, 579; the lieuten-
anbgovernor, 583,- case of eschezits,
585; the executive council, 586;
the legislature, 587; reference to
provinoinl courts, 594; “veto ” and
‘reseri’e” powers, 595; X‘(£S_p0D.Sl-
géljitypf mi6iBi(s)try, 595; judicizii-5,
judi%iary,of Uinitedé Statgs, 693;
loan. government 6 5-61″ ,- rc ei-
endum, 607; Noltliwat Terrilto-
ries 612; lmlinns 615′ cone n-
sion’, 616. ’ ’


Gandolle, A. de, 232.

Carlyle, quoted, 32.

Carr, Dabney, 217, 227, 237, 238, 239,
240, 241 ; oflbred law professor»
ship, 311.

Ca§$t)wrigl1t, Ilfajor, 249, 283, 284, 285,


(,‘art\vrig1it, Miss Frances D., 294.
Casseli, quoted, 522, 523.

Central College, 202fl’.

Chapin, quoted, vii-—ix, 76.
Chimney-viewers, in Connecticut,

vii—ix, 97, 98.
Ch4u5rch lands, in Connecticut, vii—-ix,

Cliiirch rates, in Connecticut, vii—ix,

Church Reform Union. 46.

Claiborne, VV. 0. C., 167.

Clgggy gggerves question, in Canada,

, 1 .

Cooke, G‘en’l.TohnH.,204,209, 237,241.

Cort, ‘ Stanton, 67, 68, 69; fuunds

C fiexglilgérliuod Guild, 65.

o ert, ‘5.
Coiiagiiisggnei‘, in Connecticut, vii—ix,
, .

Committee of One Hundred, in New
Orleans, 186.

Commons, proprietoxs’, vii-ix, 63fl“.

Connecticut, :1. study of the river
towns of, by C. M. Andrews, vii-—
ix; Dutch and English in, 5; early
explorations in, 9; flrst settlements
in, 13(l’.; herd winter in, 22; earli-
estgovernruent of, 23; new churches
in, 25; efforts to check emigration
to, 25; compared with Massachu-
setts, 27; democracy in, 28131; land
system of; 32«8l; early purchases,
32,- Indian reservations, 35; grant:
by the general court, 36; pensions,
37; subsidized industries, 39, 49;
extension of town boundaries, 39 ;
grants to schools, 40; patents of
1686, 40; early town allotments,
42111, new towns, 75; sulfiage in,
S‘2fl.; frecmen, 82; inhabitants, 89;
householders, 89; proprietors, 90;
growth of the oflicinl system in,
923.; townsmen, 104; oonstables,
110; town meetings, 112; rates
and lines, 114; relation of towns to
colony, 118 ll’. (See also Hartford,
Vlietheiusfield, VVindsor.)



ConuecL1’cutJoimmI, quoted, 308.

Constables, in Connecticut, vii—ix, 23,

Constitutional Act of 1791, 473.

Co<>le_\’. Judge T. M., quoted, 514,
594., 607, 608.

Cooper, Dr. Thomas, 20-1», 205, 206,
2%, 2×0, 308, 309.

Coplestonc, I17‘. Ed“-zurd, 246.

Correzx, Abbé, 20-5, 22:1 ‘, ‘.228, 234;
letter of, quoted, 3.

Cotton, sermon by, vi ix, 13.

Craigie, Dr. David, 274.

Cru’, Anthony, grant to, 160.


Dada, Judge Wm. A. C., offered law
professorsliip in University of Vir-
ginie, 311.

Dalggglett, Oink] Justice, quoted, vii—ix,

Darling, G’oremar, case of, 537.

Davies, Rev. Llewel_\’n, 46.

Davitt, Michael, 50; quoted, 51.

Davy, Dr. Martin, 247, 249, Z”1.

Democr incomplete in .\lus<:~.olin-
setts, v -‘ 2’]; character of, in
Conneetlcut, 28 111, 1215, 1’15.

Dicey, A. V., quoted, 489, 496, 520.

District attorney, offiee of, establish 2:1
‘n San Francisco, 112.

Dominion of Cnnutla, origin of name,

Dorchester, people of, settle in Con-
necticut, vii—ix, 18, 21; townsmen
of, 104.

Dorehester, Lord, 477.

Doutre, quoted, 552.


Drury, Rev. B. I{., 288.

Drnry, 1iev.}Icnr_vJ.T., 277, 285. 288.

Dxinglimn, Dr. Robley, professor in
Univeisit_\’ofVirg1’nia,:!8 791,314.

Du Pont dc Nemours, eurxe pondence
of, with Giluier, 228-230.

Durham, Lord, report; of, on state of
Canada, 477, 578.

Dutch, early relations of, with Eng-
lish on the Connecticut, vii—ix,
5-9; purchase land of the Indians,
33; driven out, 3-1.

Dvsginelle, quoted, 84-, 87, 88, 90, 92,

, .



East Hartford, vii—ix, 75, 76, 80.

East ”Windsox-, vii—ix, 75, 76, 77.

Etl%o._ntion, power over, in Canada,
a 0.

Edwards, Timothy, vii—ix, 76.

Egleston, M., quoted, vii—ix, 40, 74,

Ellington, vii—ix, 75, 76, 77.

Ellis, Dr. George E., quoted, vii—ix,
82, 126.

Emerson, quoted, 171.

Emmett, Dr. John P., elected ro-
fessor in University of Virginia,
305, 306, 307.

Entombment, Francia’s picture of,

Equivalent, vii—ix, 58, 59.

Escheat, in Canada, 585.


Forges, Pedro, 7 ‘
Furmington, vi ix, 75,
Felch, Judge, quoted, 79.
Fence-viewer, in Connecticut, vii—ix,

96, 97 98, 101. ‘
Figuerozi, Jose, 88.
Fines, in Connecticut, vii-«ix, 11413’.
Fisk, J. Bi,7£l)ea.ves money to New

r eans .

Fleming, ’2ae
Forbes, Lord, 272, 273.
Forbes, E. S., 67.
Freeman, E. A., quoted, 489.
French, sketch of their dominion in

Ennfia, 464—%69 ; Ianggiz-§e, in the

‘ana inn or iament a7‘ .

Fmntennc, 41:39. ’


G-alpin, Albert, vii—1‘x, 5.

Galvez, part taken by, in American
Revolution, 166.

Gear-_v, John W., 116, 125; on the
afiaixs of San Francisco, 117; ve-
toes salary ordinance, 14:0.

Gell, P. L, on the work of Toynbee
H-.111, 57434.

Gennnill, quoted, 554.

Giliner, Francis Walker, correspon-
dence of, 195, 317; birth, 215; early



letters, 218,- enters William and
Mary College, 220; reads law with
Wirt, 221; his essays, 2211; be»
comes acquainted with Correa 4;
in Philadelphia, 226; botan g
tour, 227 ; practices law at Win-
chester, 227; removes to Rich-
moncl, 231; ofiered law proi’essor—
ship, 236; goes to obtain rofes-
sors, 241 ; arrival in Englan , 243;
in London, 244; engages Bluekter—
mann, 244; at Cambridge, 249;
letter to Peachy Gilmer, 252; to
Win. “Witt, from Stratfcrd, 254;
at Oxford, 257; in E(ll1’llJllJ‘gl\,
259; negotiations with Key, 259-
266; and Leslie, 267,- letter to
Chapman Johnson, 268; to Peachy
Gilmer, 271 ; to Jefferson, 274, 282,
290; declines law professorship,
276; again in London, 277; nego-
tiations with Long, 277-281; se-
cures Dunglison, 285; and Long,
286; various negotiations, 286,
295; letter to Cnrr, 292; negotia-
tions with the Har\voods, 297,
299-301; influence on foundation
of University of London, 298; so-
cures Bonnyeastle, 299; sails for
New York, 302; illness after or-
rival,304; at Norfolk, 306; news-
paper criticisms on importation of
professors, 307; delay in profes-
sors’ arrival, 309; accepts low pro-
fessorship, 312; declining health,
312, 314; death, 314; literary
work, 315, 316’ attainments, 3l6;
John Randolph on, 316; letters
to, from Tiolmor, 319-329.

Gilmer, Dr. George, 215; described,
216; death, 217.

Grilmcr, Harmer, 21.8, 223.

Gilmer, James, 218.

Gilmer, John, 195.

G-ilmer, Mildred, 217.

Gilmer, Peachy, 217, 314, 317; let-
ters to, 252, 271.

Gilmer, Thomas Vlfalker, 215.

Girod, Nicholas, leaves property to
New Orleans, 178.

Grl:zstonhn.ry, vii—ix, T5, 76.

” Good Hope,” the, vii-ix, 8.

Gray, ilfr. Jlwlice, quoted, 495.

Green, S. A., quoted, vii—ix, 30.

Green, Prqf. T. H, 11, .15, 49, 52.



Hadley, size of lots in, v1’i—ix, 43.

Hall, John, explores Connecticut,
vii——ix, 10, 11.

Hzimpden-Sidney College, 199.

Harbor Master, oflice of, estnhlislied
in San Frstncisco, 112.

Hare, J. 1. (1., quoted, 520.

Harrison, Dr. Gessner, 313.

Hartford, Dutch fort at, vii—ix, 8, 9,
17; English settlers at, 20, 25;
lands of, 34, 42, 50, 51, 52, 54, 55,
56, 57, 08, G0, 61, 62, 6*}, ’74, 75;
town ofifslioots of, 75; laws against
strangers in, 8-1, 87, BS; earlier
growth of otficial system in, 97.
(Sen; also Connecticut, Constables,

Harvey, George, 287, 295, 299.

Hurwood, Dr. John, 288, 295, 297;
Goilmens negotiations with, 299-

Harwood, Dr. VVilliarn, Gilmer’s ne-
gotiations with, 299~30l.

I~Is.\\’ard, in Connecticu1,vii~ix, 96, 98.

Houses, Horace, 116, 126 ; address
of, quoted, 120,- objections of, to
revenue ordinance, 123; demands
information on town 1015 question,
128 ; suspended from oflice, 130.

Hay, George, 232.

Henrn, W. E., quoted, 496, 535.

Henderson, Stephen, leaves property
to poor of New Orleuns, 178.

Hennen’s 1)igest. quoted, 179,

Henry, Jlfr. Justice, quoted, -510.

History, ’l‘o_\’nbee’s interest in, 6 fl‘.

1-littell, quoted, 79.

Hodgson, Adam, 1286.

Holmes, Chptzxivt, expedition of, to
Windsor, vii—ix, 9, 10; purchases
land of Indians, 32, 34.

Holmes, Judge, 227.

Hooker, Thomas, vii—ix, 12, 1.3; leads
emigration to Connecticut 25 ;
quoted 76, 92,

Hooker-‘s suit, vii x, 91.

Homer, Leonard, 273, 274; and the
Univelsity of London, 298.

Iioxvo, Vtim. W., on the municipal
history of New Orleans, 15-5—187.

Hughes, Tlxomas, 46.

Hume, Joseph, and the Univexsity
of London, 298.




lliei-ville, founds Biloxi, 159.

Indiana, on the Connecticut, appeal
to Plymouth to found it settle-
ment, vii—-ix, 7 ; to Boston, 56., 7,-
their sales of land to the settlers,
£17., 32 fl‘.; reservations for, £12., 35;
policy of Canadian government
toward, 615.

lndz ‘cs, subsidized in Connecticut,
vii—ix, 39, 49.

Inspector, in Connecticut, vii—ix, 101.

lnsursnnce, power over, in Canada,
50 .

Ivory, James, 245, 283.


Jameson, Prof. Robert, 276, 277 , 278.

Jelfeison, Thomas, influence of on
his countrymen, 200; plan for lVir-
ginia education, 202; connection
with Central College, 202; origin
of University of Virginia, 207; its
location, 208; establishment, 209;
early negotiations for professors,
209fl”.; corresponds with Gilmcr,
228; quoted, 232, 242, 248, 305,
306; asks Gilmer to ho commis-
sioner to England, 236, 237; on
the law professorship, 238-2-10;
anxiety over arrival of professors,
309, 310; prescribes textbooks in
government, 310; the law profes-
sorship ngain, 311, 312. (See also

J effrey, 272, 273.

Jesuits, in Canada, 472; controversy
over their ostates, 518~520.

Johnson, Cliapmzm, 209, 237; letter
to, 268.

Johnson, Edward, quoted, vii~ix, 12.

Johnson, George, quoted, 59-1.

Johnson, Dr. Samuel, 302.

Johnston, Prof A., his View of in-
corporation, vii—ix, 78, 94; on ori-
gin of townsmen, 105; his theory
of town sovereignty criticised,

‘ 12011’.

Judd, quoted, vii—ix, I13.

Justices ofthe peace, supersede aynn-
tumiento in California, 91; in Con-
necticut, vii—-ix, 103.


Kaye, Dr. J., 251.

Keewntin, district of, 612.

Kennedy, alters VVirt’e letters, 216.

Kent, C}}zomcell<7r, 306.

lieixggn, E. J. C., letter of, quoted,

Key, ‘1‘. H., 259; Gilmer’s negotia-
tions with, 259-266; secured, 282;
arrives, 311; returns, 313; subse-
quent career, 313.

King’s College, attempt to secure
Ikiglislz professors for, 302.

Knox, Dz-., professor in Central Col-
lege, 204.

Knox, Dr. Robert, 278, 286.


Lamrnas fields, vii—ix, 69, 70.

Land system, in the river towns of
Connecticut, vii-ix, H2-81.

La. Salle, 159.

Lunssat, 167.

Lztveleye, E. de, quoted, vii-ix, 72.

Law, John, 160.

Lciwyers, in Connecticut, vii—ix, 103.

Letellier, .51., case of, 536, 584.

Legaré, I’Iugh S., 228.

Lealie, Prof. J ohn, 269, 275, 286,
292; letter from, 267.

Levennore, Dr. 0. IL, quoted, vii—ix,
so’, 100, 105.

Lister, in Connecticut, vii-ix, 101.

Lomax, J. ’1‘., niude professor in Uni-
versity of Virginia, 312.

London, University 01, Gi1mer’s in-
fluence on foundation ofi 298.

Long, George, 292 ,- olfered professor~
ship in University of Virginia,
277,- negotiations with, 277-281;
accepts, 236; arrival, 306; returns
to London, 313.

“Lord’s Waste,” vii—i2c, 18, 19.

Louis XI V, decides to take the gov-
ernment of Canada into his own
hands, 465.

Louisiana, discovery of, 159; first
settlement in, 159; granted to‘
Cromt, 160; to the Mississippi
Company, 160; ceded to Spain,
161; government of, under French,
162,- under Spanish, 164; ceded



to United States, 167; elective
franchise in, 182; boundaries 01’,

Loyalists, effect of their arrival on
Canada, 472.


Mnctionald, Sir John, 499, 543, 604;

quoted, 501, 509, -344.

Mm ‘nL<>.<h, 292, 293, 294.

Madison. Jzimes, 202, 201, 209, 213,
214; quoted, 201; makes out list
of theological books for University
of Virginia, 301; chooses text-
books in government, 310, 311.

Maine, Sir Henry, vii-ix, 30; quoted,
533, 547, 551.

Manchester, vii-ix, 75, 76.

Manitoba, province of, formed, 577;
given :1 Constitution, 582. (See

Marlborough, vii-ix, 75, 76.

Marshall, John, 197, 520, 521.

Martin, F. X., quoted, 159, 166, 167.

Merry, Joseph 0., leaves money to
New Orleans, 17%.

Mason, G’ovc:~nor R. 13., quoted, 101,

Mztssuchusetts Bay, and early expe-
ditions to Connecticut, vii-ix, 7,
11; opposes emigration to Con-
necticut, 13, 25, ’26; General Court
of, forms provisional government
for Connecticut, 23; demon-:xcy in,
incomplete, 27, 85; perambulntion
in, 100. A ‘

Mather, Samuel, vii—1x, 76.

Malirer, G. L. van, vii-ix, 30.

McClurg, Dr., 221.

McCosh, Dr. James, quoted, 68.

:VIcCul1oc-h, J. R., 263

McDonogh, J olm, donation of, to Bal-
timore and New 0 ‘

Meadow, common, v’

Men-imiic, visited by men from New-
town, vii-ix, 12._

Messuage, vii-ix, 70.

Mieheltorena, Gouenlor, 93, 95.

Middletown, vii-ix, 79.

Mill, J. 5.. quoted, G12.

Milne, Alexmuler, leaves property
to New Orleans, 177.

Missions, in California, designed to
be temporary, 79.

‘<3 >_a



‘ippi, jetties at month of, 161.

Mississippi Company, 160.

Mix, manuscripts of, quoted, vii—ix,

I .

Mofrus, quoted, 78, 92.

Monroe, J umes, 202, 208; recom-
mends professors, 303.

Montague, 1?‘. 0., on Arnold Toynhee,

Montgomery, Commodore, occupies
San Francisco, 95.

Moraga, José, 76, ’78.

Morell, C’<zptaz’nBenjamin, quoted, 87.

-Morse, John T., J r., 201.

Moses, 13., on the establishment of
municipal governmentin San Fran-
eiseo, 71-153.

Murray, John 11., 247 .


Neighborhood Guild, 0. B, Stover
on, 65-70.

New Brunswick, condition of, in
1837, 578,- given responsible gov-
ernment, 579. (See Canada.)

,IV’ewfoundland, remains out of feder-

ation, 482.

New Haven, 1 —ix, 86, 100.

Newingtou, vi ix, 75, 76.

New Orleans, W. W. Howe on the
Inunici :11 history of, 155487;
fonnde , 160; made seat of gov-
ernment, 161; government of,
under French, 162; passes to
Spain, 163; resistance of inhabi-
tants, 163; new form of govern-
ment, 164,- sources of revenue,
165; in the American Revolu»
tion, 160′; new government insti-
tuted b_v Laussat, 167; purchased
by United States, 167; charter
of 1805, 167; its provisions, 168;
charter of 1836, 169; of 1852,
170; of 1856, 170; under mili-
tary rule, 170; Administration sys-
tem introduced, 171; its merits,
172; abolished by present charter,
173; its provisions, 173; Fire De-
partment, 174; levees, drainage,
and paving, 175; water supply,
176; gas supply, 177; charitable
donations in the hands of the cits’,
177; history of elective franchise



in, 182; restraint on taxing power,
183 , control of citizens over police,
184; Auxiliary Sanitary Associttu
tion, 185′; Committee of One Hun-
dred, 186; Young Men’s Demo-
cratic Association, 187.

Newtown, inhabitants 01‘, remove to
ggznneotieut, vii—ix, 12, 13, 20, 21,

New York Americmt, quoted, 309.

Norton, Frederick, 297, 300.

Nova Seotia, condition of, in 1837,
578; given constitutional goverm
ment, 579. (See Canada.)


Ogilvie, James, 218-220 ; quoted, 206

Oldhem, John, in Mgxssaehusetts, v‘
ix, 10; firstjourney of, to Connec 1-
cm, 10; evidence as to settlement
of, at VVetherslield in 1634, 14~17 ;
land of, how held, 32.

Ontario. (See Canada.)

O’.l{ei1l5′, Alexander, 163, 164, 165.


l’alou, Father, quoted, 76.

Parkman, F., quoted, -£65.

Parr, Dr. Samuel, 2’14, 256, 257, 272,
275, 277, 283, 292; letter of, quoted,

Parton, James, 201.

l’au_1er, propose ‘titties at mouth of
Mississippi, 161.

Peachy, A. 0., opinion of, on owner-
ship of lands in S1111 Francisco, 127.

Pensions, in Connecticut, vii—ix, 37.

Pequous, attack Indians on the Con~
necticut, vii~ix, 6.

Peromhulation, vii—ix, 98-100.

Percival, J . G2, 303.

Philadelplzia Gazcile, quoted, 308.

Piotet, 233.

Finder, in Connecticut, vii—ix, 96, 98.

Plymouth, lndians a peril to, to found
settlement on the ,onne<:tieut, vii«
ix, 7; sends commiwion to Boston,
7; builds fort at Windsor, 8, 9; dis-
pute of, with Dorchester, 18; per~
omhulation in. 100.

Pope, William, 222, 302.


Poyzlras, Julien, 166.

Prned, W. M., 259, 271.

Pratz, Le Page du, quoted, 161.

Prefects, duties of, in California, 120.

Presidio, character of, 78.

Previous question, in Canada, 571,

Prince Edward Island, absentee land-
lords in, 578; given res nsible
government, 579. (See unuda.)

Privy council, appeals to, from Can-
ado,-197, 522, 524.

Pueblo, organization of, 80.


Quakers, excluded from Connecticut,
vii—ix, 84, 85, so.

Quebec. (See Canada.)

Quebec net, 471.


Randall, H. S., quoted, 208.

Randolph, John, 197, 226, 254; his
relations with Gilmer, 305; his
opinion of Gilmer, 317.

Randolph, Thomas M., 222.

Rates, in Connecticut, vii—ix, 114 ill

Recorder, in Connecticut, vii-ix, 101.

Regidores, in California, 82, 83, 85;
in Louisiana, 164.

Rice, D.-., J. E, 199, 211.

Richmond Jinqui-rer, quoted, 807.

Riley, (;}’en’l Bennett, proclamation
of, 114,

River towns of Connecticut, 0. M.
Andrews on, vii-ix.

Rocky mu, vii—1x, 75, 76.

Rush, Richard, 242, 244., 295.

Ruskin, John, elfect of, on Toynbee,
14; his descriptions, 27.


Saltonstall, Sir Richard, sends out
Stiles party, vii—i.x, 19.

Sanchez, Francisco, quoted, 90.

San Francisco, establishment of mu-
nicipal government in, Prq/’. Moses
on, 71453; discovery of, 75; first
settlement at, 76; appearance of,
in 1792, 77 ; government oi”, before



1834, 87 ; erected into It pueblo, 88;
new ayuntaniiento, 90; effect of
Constitution of 1836, 91; eyndic
and alcaldes in, 92, 93, 96, 97, 98,
99; passes to United States, 95;
new government in, 101; eflhct of
discovery of gold on, 105 ; confusion
of government of, 106; new gov-
ernment in, 107; general code
of laws in, 113; courts in, 113;
new government declared illegal
and old re-esteblislied, 114, 116;
improvements recommended by
Greary, 117; revenue ordinance,
122; the cause of Confusion, 124;
trouble overland gents, 126; city
cliorter, 130; its provisions, 132;
officers, 136; scheme of council for
plundering treasury, 137; public
protests, 138; ordinance vetoed,
140; further organization, 141;
effect of California’s admission as
at Si31tB, 147; character of city ad-
ministration, 148,- new charter,
149; end of old council, 153.

Say, J. 13., 205.

Schools, land granted to, in Connec-
ticut, vii—ix, 40; support of, 115.

Seeley, J. R., quoted, 616.

Seigniorial system, abolished in Can-
ada, 479.

Shore, John, 244.

Siekles, S. V., leaves money to New
Orleans, 1 .

Simsbnry, vi1~ix, 76, 76, 79.

Sloat, Cbmnwzlore John D., occupies
Montcrey, 94.

Smith, Goldwin, quoted, 552.

Smith, Sir Jznuas Edward, 250, 251.

Smith, John, Gilmcr copies MS. re-
lating to, 294.

Smith, Hon. Ralph D., quoted, vii-ix,

Smith, Toulmin, g_uobed,vii—ix, 84, 99.

Southamxrton, vi1—ix, 123.

South Windsor, vii—ix, 75, 76, 77.

Spain. provisions of constitution of
1812 as to local government, 82 fl’.

Stewart, Dugald, 283; letter of, quo-
ted, 289.

Stiles, Francis, leads party to Wind-
sor, v’_ii—ix, 19.

Stiles, Dr. R, quoted, vii.—ix, 21,
2:2, 33, 30, 37, 59, 7’7, 83, 101, 103,


,_M..,… ,

627] Index. 171

Stover, O. B. on the Neighborhood
Guild in ew York, 65-70.

Strong, .5112 Justice, quoted, 580.

Strong, Dr. Josiah, quoted, 68.

SUé‘l2l‘%ge, in Connecticut, vii—ix, 30,

Sulpitians, 472.

Superior Council, governs New Or-
leans, 162.

Surveyors, in Connecticut, vii—ix, 96,

swiré, MIL, 67, 63.
Syndic, in California, 82, 83,85, 92,
93; in Louisiana, 164, 165.


Tnlcott, Miss Mary K., vi’ ‘ 5.
Téxgbcollectozs, in Connecticut, vii~ix,
3 96 101.

Tay1)0r,(;lohn, of Caroline, letter of,
quote 200.

Taylor, Iiobert, 209.

Tazewell, L. W., 197, 221.

Teignmouth, Lord, 244.

Terréll, Dabney 0., 232.

Tlxorp, W. 13., 67.

Tifknor, Georgé. 212, 2§%.2§2S, 246;

enters of to ilmer 9.

Toc%ueville, A. (la, quoted, 548.

Tod , A., quoted, 496, 497, 499, 507,
538, 598.

Torrey, John, 303, 305.

Touro, Judah, leaves money to New
Orleans, 178.

Town, the historic, vii—ix, 30.

Townlmeetings, in Connecticut, vii-
ix 12 113.

Towizsmell, in Connecticut, vii—iX, 93,
941, 95, 96, £j)g,91OI, 104 ill; become
so cotmen .

Toynbieg Alnold, F. C. Montague
on 3′ eary years, 5- enters
13.111301 College, 11; persému ap-
pearance, 11; conversational pow-
ers, 12; goquaintonce with Ruskin,
14; sjudies poht1cal_ecor1omy, 15;
1°: 32“-‘°.ig’

. 13 € ” In 1‘-
vnls of rest, 26; higodmmdn sense,

rn ..; 1 ens o ecouo 1
methodé, 33; studies the industrial
revolution, 33; his views on porn-

petition, 34; forms an eoonomic
club, 35; gives popular lectures,
37, 51; his views on co-opeimion,
41; on church and state, 43‘ work
among the poor, 49; travels, 50;
last days, 52; letter of, uoted, 55-
57; his ideas of soci responsi-
bility, 57.

Toynbee, Joseph, 5.

Toynbee Hall, P. L. Gall on the work
of, 57-64. (See also Neighbor-
hood Guild.)

Toynbee Trust, 58.

Tracy, Destutt, 205.

Trent, VV111. P., on English culture
in Virginia, 189-329.

Trumbull, Dr. 15., quoted, vii-ix, 22.
Incker, George, elected professor in
University of Virginia, 306, 307.
Tu3c]l<1er, H. St. George, 227, 228, 241,

Tuirlf laud twig, possession l2y,vii—ix,

Tuttle, Ben, quoted, Vii—ix, 21.
Twcddel, John, 271.


Ulloa, Antonio de, 163.
Unmga, 165.
Upslmr, Abel P., 222.


Vanoouver, quoted, 77.

Vaughan, Benjamin, 232.

Virginia, English culture in, W. 1’.
Trent on, 189429; state of culture
in, at beginning of century, 197;
financial ruin of, 223,- Gilmer on,
256 ,- perambulationin, vii~ix, 100.

Virg ‘ Universityof, 248,264,265;
origin of, 207; located, 208; es-
tablished, 209; fir-si: salaries in,
303; opens, 311. (See Gilmer,


Walker, Francis, 215.

Wall<er, John, 254. __ _

Wggnpnm, in Connecticut, vn»1x, 34,

‘172 ,Ind(.’oo. [628

rWarham, vii—ix, 92; date of coming

, of, to Connecticut, 21, 251

Warner, public, in Connecticut, vii»
ix, 96, 99.

Washington College, 199.

.Wntertown, early exodus from, to
Connecticut, vii-ix, 13 ,- connection
of Oldlmm with, 14; later imnii—
ggetion from, 21; size of lots in,

.Wey’-wardens, in Connecticut, vii—ix,

Webeter vs. I-Tarwington, cited, vii-
ix, 121

:Westex‘n bom any, 160.

West Hartfor , vii—ix, 75, 76.

,WetliersfieId, diagram of early allot-

ments in, vii—ix, 4; earliest settle-
ment at, 13132; lands of, 34, 42, 43,
44, 45, 46, 47, 48, 49, 51, 52, 53, 54,
56, 57, 60, 61, 63, 64, 65, 66, 67, 73,
74,- town oflishoots of, 75; oflicers
chosen in, 102. (See also Conneev
tiqut, Constables, etc.)

Wickliam, 197. _

Wizlgéam and Mary College, 199, 211,

Williarzi vs. Killingworth, cited, vii-
ix, 121.

Wilson, John, 289.

Wilson, Woodrow, quoted, 547.

Windsor, settlements at, vii—ix, 9, 17
ff‘; claim of, to priority of settle-
ment, 17; disputes over possession
of, 18; lands of, 34, 42, 48, 50, 51,
52, 56, 58, .59, 62, 67, 68; town ea”-
shoots of, 75, 76, 77; regulates ad»
mission of inhabitants, 87, 88. (See
also Connecticut, Constables, etc.)

Windsor Locks, vii—’

Winslow, Edward, v x, 7, 18.

Winthrop, John, ‘ ‘ 19, 39, 49,
126; quoted, 15, 22.

Wirt, William, 197, 217, 221, 228,
230, 231, 314; quoted, 216, 220;
letter to, 254; offered law profesl
sorship, 312. ‘

Wordsworth, Dr. Christopher, 251.



Young Menfs Democratic Associa-
tion, in New Orleans, 187.

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