A manual of the constitutional history of Canada from the earliest period to the year 1888

Front matter

cop. 2.

H

X or

Chapter I. Canada Under The French Regime

Nature of first Government, pp. 1-3 — Constitution of Supreme, afterwards Superior, Council, pp. 3-4 — No semblance of Municipal Government, pp. 4-5 — Feudal Tenure, p. 5— Whole System of Administration centred in the King, p. 6 .

Chapter II. Government From 1760 To 1774

Terms of Capitulation in 1760, p. 7 — Treaty of Paris, pp. 7-8 — Military Government for Three Years, p. 8 — Proclamation of 1763, establishing- System of Government in Quebec, pp. 8-10. No Assemblies called, p. 10 — Unsettled State of the Country, pp. 10-11 — Uncertainty as to Laws in Force,

Chapter III. Quebec Act, 1774

Intervention of Parliament in Canadian Affairs; Charter of Government granted, p. 12 — Opposition to the Quebec Act in the Province, p. 13 — Details of the New Constitution, p 14 — Legislative Council Established, pp. 14-15 —

VIII

CONTENTS.

Inauguration of the New Constitution, p. 16 — Formation of a Privy Council, p. 16.

Chapter IV

Two Provinces Established, p. 17 — Immigration of United Empire Loyalists, pp. 17-18 — Legislative Institutions in Upper and Lower Canada, pp. 19-23 — Meeting of the Legislature of Lower Canada at Quebec, 17th December, 1792, p. 24— of Legislature of Upper Canada at Newark, 17ch September, 1792, p. 24 — A New Constitutional System intended as a Transcript of the British Constitution, p. 25 — Description of Ceremonial at first Opening of Legislature in Upper Canada, p. 25. Political Difficulties, p. 25 — Dispute between Executive and Assemblies with respect to Control of Supplies and Civil List, p. 26 — Frequent Dissolutions of Quebec Legislature, p. 26 — Political State of Provinces described, pp. 27-28 — Rebellion of 1837-8, p. 28 — Suspension of the Quebec Constitution, p. 29 — Arrival of Lord Durham as Governor- General and High Commissioner, p. 30 — His Ordinance of 28th June, 1838, p 31.

Chapter V

Lord Durham’s elaborate Report on Political Difficulties, p- 32 — Value of his Suggestions, pp. 32-33— Upper and Lower Canada reunited, pp. 33-34 — Outline of the New Constitution, pp. 35- 36 — Commencement of new Era, p. 36 — Responsible Government, pp. 37-38 — Arrival of Lord Elgin, p. 39 — Importance of Legislation from 1841-1867, p. 40 — Municipal System, p. 40 — Settlement of Clergy Reserves, pp. 41-42 — Abolition of Seigniorial Tenure, p. 43 — Civil Service, pp. 43-44 — Complete Control over Civil List and Provincial Revenues, 45 — Freedom of Trade, pp. 46-47 — Use of French Language in Records, etc., p. 47 — Elective Legislative Council, pp. 47-48.

CONTENTS.

IX

Chapter VI. Federal Union Of The Provinces

Political Difficulties, p. 49 — Representation by Population, p. 50 — Double Majority Theory, p. 51— Political Deadlock, p. 52 — Understanding between Political Leaders, p. 53 — Federal Union, pp. 53-54 — Adoption of Seventy-Two Resolutions as Basis of Federal Union, pp. 54-55 — Legislature of Canada pass Address to Queen, p. 55 — Delay in the Maritime Provinces, pp. 55-56 — New Constitution finally Adopted, p. 56— Passage of Act of Union (B. N. A. Act, 1867) by Imperial Parliament, pp. 56-57 — Meeting of first Parliament of the Dominion, p. 57 — Acquisition of the North-West, p 58— Insurrection in Red River, p. 59 — Establishment of Province of Manitoba ; Meeting of first Legislature ; Representatives take Seats in Parliament, p. 59 — Admission of British Columbia, p. 60 — of Prince Edward Island, pp. 60-61 — Newfoundland declines to enter Confederation, p. 61 — Imperial Order-in-Council pacing all British North America except Newfoundland under control of Canada, pp. 61-62,

Chapter VII. Constitution Of The General Government

Wide Extent of the Dominion, p. 63 — Executive Government, p. 64 — Office of Governor-General, pp. 64-5 — Advised by a Privy Council, p. 68 — Its Character and Functions, pp. 68-70 — Formation of first Ministry of the Dominion, p. 71 — Functions of Ministers, pp. 71-72 — Organization of Public Departments, pp. 72-74.

Chapter VIII. Constitution Of Parliament

Governor-General opens and prorogues Parliament; assents to or reserves Bills, p. 75 — dissolves Parliament, pp. 76-77 — General Features of the Senate or Upper House, pp. 77-81 — of

X

CONTENTS.

the House of Commons, pp. 81-82 — Duration of Parliament, pp. 82-83 — Representation, pp. 83-85 — The Franchise, pp. 86-87 — Control over Revenues and Duties, p. 88.

Chapter IX

CONSTITUTION OF THE PROVINCIAL GOVERNMENTS AND ORGANIZATION OF THE NORTH-WEST TERRITORIES.

Control of General Government over Provinces, p. 90 — Lieuten-f ant-Governor appointed and removed by the Governor- General in Council, p. 90 — His Duties and Responsibilities! pp. 91-92 — Represents the Queen in the performance of certain Executive Acts, p. 93 — Constitution of Local Legislature of Ontario, pp. 93-94 — of Quebec, pp. 94-96 — of Nova Scotia, pp. 96-97 — of New Brunswick, pp. 98, 99 — of Prince Edward Island, pp. 99, 100 — of Manitoba, p. 101 — of British Columbia, pp. 101, 102 — Government of the North-West Territory, pp. 103, 104 — Creation of Provincial District of Keewatin, p. 104 — Imperial Legislation to remove doubts as to the power of Canadian Parliament to legislate with respect to new Provinces in the Territories, etc., pp. 105, 106 — Local Legislatures may amend Local Constitutions, except as regards the Office of Lieutenant-Governor, p. 106.

Chapter X. Disallowance Of Provincial Acts

Power of disallowance, pp. 108-110— Disallowance of Streams Act of Ontario Legislature, pp. 110-112 — Of Act of Manitoba Legislature incorporating Winnipeg South-Eastern Railway Company, pp. 112, 113— Powers and Responsibilities of Dominion Government in this respect, pp. 113, 114.

CHAPTER XL

DISTRIBUTION OF LEGISLATIVE POWERS.

Object of the Framers of the Constitution, pp. 115, 116— Powers i

CONTENTS.

XI

[of the General Government, p. 116 — Of the Provincial Governments, p. 117 — Exclusive powers of Legislatures respecting Education, p. 117 — Concurrent powTers of Parliament and Legislatures as to Immigration and Agriculture, pp. 117, 118 — Difficulties as to Jurisdiction, p. 119.

Chapter XII. ■'udicial Decisions On Questions Of Legislative Jurisdiction

On the Dominion Controverted Elections Act, pp. 121-123 — On /insurance, pp. 123-128 — On Acts respecting Temporalities Fund of the Presbyterian Church, pp. 128-130 — On Ontario Act respecting Sale of Fermented or Spirituous Liquors, pp. 130, 131 I — On Fishery Leases and Licenses, pp. 132-134.

Chapter XIII. Judicial Decisions— Continued

On Canada Temperance Act, pp. 135-139 — On Liquor License Acts of Ontario and of the Dominion, pp. 139-146 — On Escheats, pp. 147-151. On Indian Titles to Lands (He St. Catharine’s Milling and Lumber Co.), pp. 151-155 — Judicial Committee of the Privy Council on Quebec Tax imposed on Banks and other Corporations, pp. 155, 156 — Boundary Award, pp. 156-158.

Chapter XIV

RULES OF CONSTRUCTION AND CONSTITUTIONAL PRINCIPLES EVOLVED FROM JUDICIAL DECISIONS.

Rules laid down by the Judicial Committee of the Privy Council of England, for the Construction and Interpretation of provisions of B.N.A. Act relating to distribution of Legislative Powers, pp. 159-163 — Constitutional Principles deduced from the decisions of High Judicial Authorities, and from the operation of the fundamental Law, pp. 163 et seg .

XII

CONTENTS.

Chapter XV. Position Of The Judiciary

Laws in force in Canada, pp. 170, 171 — Appointment of Judges; their Tenure of Office, pp. 171, 172 — How impeached, pp. 172, 173.

Appendix

British North America Act, 1867, p. 179 — BritishJNorth America Act, 1871, p. 228 — Parliament of Canada Act, 1875, p. 231.

Chapter I. Canada Under The French Regime

The history of parliamentary institutions in Canada commences towards the close of the eighteenth century. Whilst the country remained in possession of France, the inhabitants were never represented in legislative assemblies, and never exercised any control over their purely local affairs\by frequent town meetings. In this respect they occupied a position very different from that of the English colonists in America. The conspicuous features of the New England system of government were the extent of popular power and the almost entire independence of the parent state in matters of provincial interest and importance. All the freemen were accustomed to assemble regularly in township meetings, and take part in the debates and proceedings. The town, in fact, was " the political unit,” and was accordingly represented in the legislature of the colony. Legislative assemblies,1

1 Story on the Constitution of the United States (4th ed. Cooley), p.p. 113, 114, 193 n.; Bourinot’s Local Government in Canada, in Johns Hopkins University Studies in Historical and Political Science, Baltimore, 1887.

CONSTITUTIONAL HISTORY.

indeed, were the rule in all the old colonies of England on this continent*:— even in proprietary governments like that of Maryland. On the other hand, in the French colony, a legislative system was never enjoyed by the inhabitants. The first government which was established by Samuel Champlain, the founder of Quebec, was invested with large authority.1 For over half a century, whilst the country was practically under the control of trading corporations, the governor exercised all the powers of civil and military government, necessary for the security and peace of the colony. Though he had the assistance of a council, he was under no obligation whatever to follow its advice, on all occasions. After some years’ experience of a system of government which made the early governors almost absolute, Colbert effected an entire change in the administration of colonial affairs. From 1663, the government of Canada was brought more directly under the control of the king, and made more conformable to the requirements of a larger population. But in all essential features the government resembled that of a French province. The governor and intendant were at the head of affairs and reported directly to the king.2 Of these two high functionaries, the governor

1 Garneau I., 87 (Bell’s Translation). The “ Instructions ” in the early commissions ordered : “ And according as affairs occur, you shall, in person, with the advice of prudent and capable persons, prescribe — subject to our good pleasure-all laws, statutes and ordinances ; in so far as they may conform to our own, in regard to such things and concernments as are not provided for by these presents.”

2 The governor was styled in his commission, Gouverneur et Lieutenant-General en Canada, Acadie, Isle de Terre Neuve, et

THE FRENCH REGIME.

was the superior in position ; he commanded the troops, made treaties with the Indians, and took precedence on all occasions of state. The intendant came next to him in rank, and, by virtue of his large powers, exercised great influence in the colony. He presided at the council, and had control of all expenditures of public money. His commission also empowered him to exercise judicial functions, and in certain cases to issue ordinances having the force of law whenever it might be necessary.* 1

When the king reorganized the government of Canada, in the month of April 1663, he decreed the establishment of a supreme council at Quebec.2 This body, afterwards called the superior council, consisted of the governor, the bishop, the intendant and five councillors, subsequently increased to seven,3 and eventually to twelve.4 This council exercised legislative, executive and judicial powers. It issued decrees for the civil, commercial, and autres pays de la France Septentrionale and the intendant, “ Intendant de la Justice, Police et Finances en Canada,” etc. Doutre et Lareau, Histoire du Droit Canadien I., 130.

1 See Commissions of Intendants in Edits et Ordonnancesy III.

2 Edit de creation du conseil souverain de Quebec , lb I. 37.

3 In 1675, when the king confirmed the decree of 1663 (I. lb. 83), and revoked the charter of the West India Co., to which exclusive trading privileges had been conceded in 1664. Doutre et Lareau, Histoire du Droit Canadian I., 118, 184.

4 In 1703. The councillors were rarely changed, and usually held office for life. They were eventually chosen by the king from the inhabitants of the colony on the recommendation of the governor and intendant. The West India Co. made nominations for some years. The first council, after the edict of 1663, was selected by the governor and bishop, but practically by the latter, Monseigneur Laval. Parkman, pp. 135-6.

CONSTITUTIONAL HISTORY.

financial government of the colony, and gave judgment in civil and criminal causes according to the royal ordinances and the coutume de Paris , besides exercising the function of registration borrowed from the Parliament of Paris. An attorney-general sat in the council, which was also empowered to establish subordinate courts throughout the colony. From the decisions of the intendant or the council there was no appeal except to the king in his council of state. Local governors were appointed at Montreal and Three Rivers, but their authority was very limited ; for they were forbidden to fine or imprison any person without obtaining the necessary order from Quebec. Neither the seigneur nor the habitant had practically any voice whatever in the government j and the royal governor called out the militia whenever he saw fit, and placed over it what officers he pleased. Public meetings for any purpose were jealously restricted, even when it was necessary to make parish or market regulations.1 No semblance of municipal government was allowed in the town and village communities. Provision had been made in the constitution

1 11 ne laisse pas d’etre de tres grande consequence de ne pas laisser la liberte au peuple de dire son sentiment. (Meules au Ministre, 1685.) Even “meetings held by parishioners under the eye of the cure to estimate the cost of a new church seem to have required a special license from the intendant.” (Parkman, The Old Regime in Canada, p. 280.) “ Not merely was the Canadian colonist allowed no voice in the government of his province or the choice of his rulers, but he was not even permitted to associate with his neighbour for the regulation of those municipal affairs which the central authority neglected under the pretext of managing.” Lord Durham’s R., p. 10.

THE FRENCH REGIME.

of 1663 for the election of certain municipal officers called syndics, to note any infraction of public rights in • the large communities; but, after a few futile attempts to elect such functionaries, the government threw every obstacle in the way of anything like a municipal system, and the people finally were left without any control whatever over their most trivial local affairs.1 The very social fabric itself rested on feudal principles modified to suit the condition of things in a new country. The habitant held his lands on a tenure which, however favourable to settlement, was based on the acknowledgment of his dependence on the seigneur. But at the same time, the lord of the manor, and the settler on his estate, were on an equal footing to all intents and purposes as respects any real influence in the administration of the public affairs of the colony. The very name of Parliament had to the French colonisFnone of that significance it had to the Englishman, whether living in the parent state or in its dependencies. The word in French was applied only to a body whose ordinary functions were of a judicial character, and whose very decrees bore the impress continually of royal dictation. In Canada, as in France, absolutism and centralization were the princi-

1 Doutre et Lareau, Histoire du Droit Canadien, 138. The regulations of 1647 show that such officers existed in Quebec, Montreal and Three Rivers, but they had ceased to be appointed by 1661. The first elections held in 1663 were allowed to miscarry, and from that time forward, says Garneau, “ There was no further question of free municipal government in Canada, so long as French dominion endured, although a nominal syndicate existed for a short time after that now under review.” Garneau I., 189-90.

CONSTITUTIONAL HISTORY.

pies on which the government was conducted. The king administered public affairs through the governor and intendant, who reported to him as frequently as it was possible in those times of slow communication between the parent state and the colony.1 The country prospered or languished, according as the king was able or disposed to take any interest in its affairs ; but even under the most favourable circumstances, it was impossible that Canada could make any decided political or material progress with a system of government which centralized all real authority several thousand miles distant.2 *

1 “ The whole system of administration centred in the king, who, to borrow the formula of his edicts, 4 in the fullness of our power and our certain knowledge/ was supposed to direct the whole machine, from its highest functions to its pettiest intervention, in private affairs.” Parkman, Old Regime, pp. 285-6.

2 For accounts of system of government in Canada till the Conquest, see Garneau I., book iii., chap. iii. Parkman’s Old Regime in Canada, chap. xvi. Reports of Attorney-General

Thurlow (1773), and Solicitor-General Wedderburne (1772), cited

-by Christie, I., chap. ii.

Chapter II. Government From 1760 To 1774

Canada became a possession of Great Britain by the terms of capitulation signed on the 8th of September, 1760.1 By these terms Great Britain bound herself to allow the French-Canadians the free exercise of their religion2 ; and certain specified fraternities, and all communities of religieuses were guaranteed the possession of their goods, constitutions and privileges, but a similar favour was denied to the Jesuits, Franciscans or Recollets and Sulpicians, until the King should be consulted on the subject. The same reservation was made with respect to the parochial clergy’s tithes. These terms were all included in the Treaty of Paris, signed on the 10th of February, 1763, by which France ceded to Great Britain, Canada, and all the Laurentian isles, except

1 Atty.-Gen. Thurlow ; Christie’s Hist., I., p. 48. Garneau, II., 70.

2 The words “ as far as the laws of Great Britain permit,” appear in art. IV. of the Treaty of Paris. Doutre et Lareau, I., 329. They are also found in the Instructions given in 1763 to Governor Murray. Ib. 560.

CONSTITUTIONAL HISTORY.

St. Pierre and Miquelon, insignificant islands off the southern coast of Newfoundland, which were required for the prosecution of the French fisheries. In this treaty, Great Britain bound herself to allow the Canar dians the free exercise of their religion, but no reference was made in the document to the laws that were to prevail throughout the conquered country.1

For three years after the conquest, the government of Canada was entrusted to military chiefs, stationed at Quebec, Montreal and Three Rivers, the headquarters of the three departments into which General Amherst divided the country.2 Military councils were established to administer law, though, as a rule, the people did not resort to such tribunals, but settled their difficulties among themselves. In 1763, the King, George III., issued a proclamation establishing four new governments, of which Quebec was one.3 Labrador, from St John’s River to Hudson’s Bay, Anticosti, and the Magdalen Islands, were placed under the jurisdiction of ,/Newfqujidland, and the islands of St. John (or Prince Edward Island, as it was afterwards called), and Cape Breton (lie Royale), with the smaller islands adjacent ' thereto, were added to the government of Nova Scotia.^

1 Atty.-Gen. Thurlow ; Christie, I., p. 48. Miles, History of Canada under French Regime, app. xvi. See also note 2, p. 7.

2 These three divisions corresponded to the old ones under the French regime. General Murray wras stationed at Quebec; General Gage at Montreal ; Colonel Burton at Three Rivers. Garneau, II., 82.

3 The others were East Florida, West Florida, and Grenada. The boundaries of the several governments are set forth in the proclamation.

Express power was given to the governors, in the letters-patent by which these governments were constituted, to summon general assemblies, with the advice and consent of His Majesty’s Council, “ in such manner and form as was usual in those colonies and provinces which were under the King’s immediate government.” Authority was also given to the governors, with the consent of the councils, and the representatives of the people, to make laws, statutes and ordinances for the peace, welfare and good government of the colonies in question. The governors were also empowered to^establish, with the consent of the councils, courts of judicature and public justice, for the hearing of civil and criminal causes, according to law and equity, and, as near as may be, agreeable to the laws of England, with the right of appeal in all civil cases to the Privy Council.1 General Murray,2 who was appointed governor of Quebec on the 21st November, 1*763, was commanded to execute his office according to his commission and accompanying instructions, or such other instructions as he should receive under His Majesty’s signet and sign manual, or by His

1 Proclamation of 7th October, 1763. Atty.-Gen. Thurlow’s Report; Christie, I., pp. 49-50. In the debates on the Quebec, Bill, the vagueness of this proclamation was sharply criticised, and no one appears to have been willing to assume the responsibility of having framed it for the King. Atty.-Gen. Thurlow acknowledged that ‘*it certainly gave no order whatever with respect to the constitution of Canada; it certainly wTas not a finished composition, etc.” Cavendish’s Debates, p. 29.

2 Sir Jeffery Amherst wras in reality the first, and Gen. Murray the second, governor-general of Canada. Gameau, II., 87 ; supra p. 8.

CONSTITUTIONAL HISTORY.

Majesty’s Order-in-Council, and according to laws made with the advice and consent of the council and assembly — the latter to be summoned as soon as the situation and circumstances of the province should admit. The persons duly elected by the majority of the freeholders of the respective parishes and places were required, before taking their seats in the proposed assemblies, to take the oaths of allegiance and supremacy, and the declaration against transubstantiation.1 All laws, in conformity with the letters-patent, were to be transmitted in three months to the King for disallowance or approval. The governor was to have a negative voice, and the power of adjourning, proroguing and dissolving all general assemblies,2

No assembly, however, ever met, as the French-Canadian population were unwilling to take the test oath,3 and the government of the province was carried on solely by the governor-general, with the assistance of an executive council, composed in the first instance of the two lieutenant-governors of Montreal and Three Rivers, the chief justice, the surveyor general of customs, and x The oaths of allegiance, supremacy, ana abjuration were formerly required to be taken by every member in the English Commons undtr various statutes. By 29 and 30 Viet., c. 19, and 31 and 32 Viet., c. 72, a single oath was prescribed for members of all religious denominations; May, 205. 30 Car. II., st. 2, c. 1, required members of both houses to subscribe a declaration against transubstantiation, the adoration of the Virgin, and the sacrifice of the mass. Taswell-Langmead, Const. Hist., 447, 632.

2 Atty.-Gen. Thurlow, in Christie, I., pp. 50-1.

3 It was convoked pro forma, but never assembled. Garneau, II., 92, 108.

eight others chosen from the leading residents in the colony.1 From 1763 to 1774 the province remained in a very unsettled state, chiefly on account of the uncertainty that prevailed as to the laws actually in force. The “ new subjects,” or French Canadians, contended that justice, so far as they were concerned, should be administered in accordance with their ancient customs and usages, by which for a long series of years their civil rights and property had been regulated, and which they also maintained were secured to them by the terms of the capitulation and the subsequent treaty. On the other hand, “ the old,” or English subjects, argued from the proclamation of 1763 that it was His Majesty’s intention at once to abolish the old established jurisprudence of the country, and to establish English law in its place, even with respect to the titles of lands, and the modes of descent, alienation and settlement.2

1 Garneau II., 87-8. Only one native French-Canadian was admitted into this council.

2 Atty.-Gen. Thurlow, in Christie, I, pp. 51-63 ; also, Report of Atty.-Gen. Yorke, and Sol. -Gen. De Grey, 14tli April, 1766, quoted by Thurlow, 55. The latter able lawyer expressed himself very forcibly as to the rights of the French Canadians : “ They seem to have been strictly entitled by the jus gentium to their property, as they possessed it upon the capitulation and treaty of peace, together with all its qualities and incidents by tenure or otherwise, and also to their personal liberty. * * * * It seems a necessary consequence that all those laws by which that property was created, defined, and secured, must be continued to them. To introduce any other, as Mr. Yorke and Mr. DeGrey emphatically expressed it, tends to confound and subvert rights, instead of supporting them.” Ib. 59.