Manual or explanatory development of the Act for the union of Canada, Nova Scotia, and New Brunswick in one dominion under the name of Canada synthetical and analytical : with the text of the Act, etc., and index to the Act and the treaties

Front matter

This is a reproduction of a book from the McGill University Library collection.

Title: Manual or explanatory development of the Act for the union of

Canada, Nova Scotia and New Brunswick, in one Dominion under the name of Canada, synthetical and analytical: with the text of the act etc., and index to the act and the treatises. Author: Gooch, John

Index To The Act And The Treatises

BY JOHN GOOCH.

OTTAWA :

PRINTED BY G. E. DESBARATS.

Entered, according to the Act of the Provincial Parliament, in the year one thousand eight hundred and sixty-seven, by John Gooch, in the Office of the Registrar of Canada.

TO

THE HONORABLE SIR JOHN ALEXANDER MACDONALD, K. C. B.,

PREMIER OF THE FIRST ADMINISTRATION OF THE DOMINION OF CANADA,

LATE CHAIRMAN OF THE DELEGATES FOR THE UNION OF THE PROVINCES IN LONDON,

AND AS BEING

TTTE FIRST AMONG THE ABLE AND DEVOTED PUBLIC !MEN TO WHOM CANADA OWES “ THE BRITISH NORTH AMERICA ACT, 1867 ,”

THIS WORK IS RESPECTFULLY DEDICATED BY HIS VERY OBEDIENT SERVANT,

JOHN GOOCH,

Preface

The purpose of this book is to exhaust and make obvious the sense of every section and item of the Act of the Constitution of Canada. It is hoped care enough has been taken to leave out, if anything, no particular of any importance.

In the composition of the Act itself it was most highly important to provide for whatever was exigent or eligible to be done, to give in the best way : — effect to the Union, and to insure a proper order of change from the foregoing to the incoming ways and constitutions of Government. Composed, as it was, with exact care — not to fail in this critical undertaking — it may seem near, at least, to repeat itself : say it but seems.

The Synthetical Explanatory Treatise, founded on it, will alike seem to be self-repeating, and perhaps is. The writer, who did not choose this, would rather it so happened, though, than that it should be found omissive.

The Analytical Index given, inevitably repeats much of the contents of the Synthetical ; but it is produced, not so much for further information in the meaning of the Act, as to offer an alternative opportunity to the enquirer. This index may be more easily consulted on a particular exigency. The Synthetical Development, for acquaintance with the Act in its whole design or that of its principal members ; withal inadvertancies there will be ; — may the reader be courteous

The change in the Constitution of the Government now made in these British Colonies — adapted to them as an United Dominion, although they retain still for their separate uses subsidiary governments — gives an occasion for the present work.

For one and all of these Provinces the information to be given

VI herein, is needed, at least by the class of persons concerned or taking an interest in their Governments.

Members of Provincial Governments or Legislatures will see how to distinguish in the partition now made of the functions of Government : will see what share of them is parted with to the Government of the Dominion, and what share of them remains to the Governments at home.

But specially the Representatives of the Provinces in the Senate and House of Commons of the New Dominion should be assisted by such a manual.

Apart from the sentiment (more faint or more fervent as it might be,) of the unity in one Empire of Great Britain and Ireland and its dependencies, these Provinces have hitherto been virtually -detached rather than united together, and the journals of all the Governments witness to their jarrings, their rivalries, and their contentions. How much prosperity has been lost meanwhile, (to which they could have helped one another,) because of collision ! and what positive damages have been suffered by each of the little Commonwealths in collision !

But now, if mutuality of the United Provinces cannot indemnify for the past, most certainly it can and will confer great advantages : if, as inaugurated by the Constitution to be described, this is received as a vital reigning principle by those who are called to govern and legislate, and this principle will not, cannot be wanting with the public ; or the governing class will be more public spirited than the class governed — though it by no means follows that ihey be less so.

Let Mutuality be a principle to dominate supremely the Government and Parliament of the Dominion, and let not the subsidiary Provincial Governments and Legislatures be, in anywise, estranged from, though not so familiar with it.

September, 1867.

MANUAL

OF THE

IN THE ORDER OF ITS DEVELOPMENT,

OR

THE CONFEDERATION OF THE PROVINCES OF CANADA. NOVA SCOTIA AND NEW BRUNSWICK,

ACCORDING TO

THE BRITISH NORTH AMERICA ACT, 1867.

( Synthetical and Analytical.)

PRELIMINARY NOTICES.

HISTORICAL NOTES.

As to the policy of Unity or Confederacy of the Provinces of British North America, it is a subject of distant and extensive history, if fully treated on.

Here only will be stated what relates to the form of its con-' summation in hand.

This Constitution of Canada, by reason of its enactment as an Act of Parliament of the United Kingdom, is integrated as a Branch of the ancient sovereign Constitution of that Empire, i. e. r the mother trunk projects in the direction of these colonies an armof its strength — and may it prove our strong arm also, please God.

It is truly, in its idea, first, of our projection. Our several pro-- vinces felt, at least, their inaptitude for common effort and common! progress while governed asunder from each other.

And the time had come — and its signs so forcibly made it known that it had come — when to combine, take common counsel and to co-operate for an uniform general welfare, was urgent.

The provinces held communication with each other — the more Important Province of Canada opening a well-advised correspondence with the lower provinces.

Delegates of all the provinces explained in a common session at Quebec, and it followed that they resolved unanimously on what terms the provinces might pass into Confederation. This inclination of the provinces was fostered by the British State.

The plan of an United Dominion, as then agreed on was not final, but was fruitful undoubtedly. The final plan, as emanating from the provinces, was agreed on by their delegates — generally the same persons as at Quebec — commissioners now to London, there to negotiate with each other, and if they in concert could compose an eligible plan, to present it in behalf of their (provinces to the British Government.

The plan presented by the delegates was welcomely received foy the British Government as the wise, genial and loyal design «of the political communities of these provinces.

After the Queen’s government had exercised its right of supervision, the plan was, by the ministry, proposed to the British Parliament, and therein affirmed and empowered as the form the British Constitution should take in the Dominion of Canada, — now set up in British North America.

SKETCH OF THE FORM OF THE BRITISH GOVERNMENT.

The action of the Government of the Empire, as shown in the initiation, the progress and the enactment of the “ Act of British .North America, 1867,” exemplifying as far as it does the order smd process of Government according to the established British Constitution, will assist us to know that Constitution, which it is necessary to describe ; as the provinces sought the Metropolitan state to grant them “ a constitution similar in principle to that of .the United Kingdom which it will be found, is conferred by the Act of British North America.

It may be said to be constituted 1st of The Regality — the first the unitive and the last power indicated. II. But this Royal power is not, nor has its virtue alone, it is collated with and active in virtue of the advice and consent of the Privy Council of the

Crown, otherwise the Cabinet, the Ministry of the day — the great Officers of the Executive Government. III. The Royal Power, as operative in and by and through the Privy Council, is to be concurrent with or sanctioned by the authority of Parliament, and all lawful powers, means and offices thought to be requisite for the good of the Realm, are to be obtained from the Parliament of the three Estates duly summoned by the Crown.

Of these Estates the Crown has special command in the departments of the Church the Army and Navy. The third estate — the Commons has special command of the Finances, the ways and means. The Ministry of the day, take a leading part in the ordering and conducting of Parliaments, to which they are accountable for their administration, severally, for the departments of government held by them.

DISSIMILARITY OF THE CONSTITUTION OF CANADA.

Our Constitution of the Dominion of Canada under one Queen, represented by one Governor General, is Federal as well as Central, while that of the United Kingdom, and to which it is made “ similar,” as far as may be, is wholly central. In the Dominion the task of government is divided, and the instruments, separate for the separate parts, while yet alt, are to be concordant in action, as a common effect is intended. The Central Government bears respect to the general welfare ; the particular Governments bear respect to the welfare of their particular communities, as compatible with the general welfare. Also, the constitution makes no provisions for a Church.

1 *

A SYNTHETICAL SUMMARY OF “ THE BRITISH NORTH AMERICA ACT, 1867.”

PRACTICAL DEVELOPMENT OF THE ACT.

Its date is the 29th March, 1867. Its preamble informs us, 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 : —

That such a Union is favorable to the welfare of the provinces, and as well of the British Empire, that the British Parliament deem it expedient in establishing it, both to provide for the constitution of the Legislative Authority in the Dominion, and to declare the nature of the Executive Government therein. : —

That it is also expedient that provision be made for the eventual admission into the Union, of other parts of British North America. The Acts proceeds — being classed under eleven heads : —

I. Preliminary, secs. 1, 2.

II. Union, secs. 3-8.

III. Executive Power, secs. 9-16.

IV. Legislative Power, secs. 17-57.

V. Provincial Constitutions, secs. 58-90.

VI. Distribution of Legislative Powers, secs. 91-95.

VII. Judicature, secs. 96-101.

VIII. Revenue, Debts, Assets, Taxation, secs. 102-126.

IX. Miscellaneous Provisions, secs. 127-144.

X. Intercolonial Railway, sec. 145.

XI. Admission of other Colonies, secs. 146-147.

Five Schedules are annexed on the subjects :

1st Schedule, (A.) Existing Electoral Divisions of Ontario ; (B.) New Electoral Divisions.

2nd Schedule. Electoral Divisions of Quebec, specially fixed. 3rd Schedule. Provincial Public Works and property ; to be the property of Canada.

4th Schedule. Assets to be the property of Ontario and Quebec conjointly.

5th. Schedule. Oath of Allegiance — Declaration of Qualification. {Forms to be used as the Act directs.)

A further supplement to the Act is another Act, (Cap XYT.,) 12th of April, 1867, for “ Authorizing a Guarantee of Interest on a Loan to be raised by Canada,” on account of the Intercolonial Railway.

EXPLANATIONS NECESSARY FOR THE INTERPRETATION OF THIS ACT CONTAINED IN THE ACT.

Sec. 1. This Act maybe cited as the British North America Act, 1867.

Sec. 2. The provisions of this Act referring to Her Majesty extend also to the heirs and successors of Her Majesty.

Sec. 4. The name Canada shall be taken to mean Canada as constituted under this Act.

Sec. 13. Provisions referring to the Governor General in Council, shall be construed as referring to the Governor General acting by and with the advice of the Queen’s Privy Council of Canada.

Part I. As Applicable To The Dominion

The full title of this Act, viz., an Act for the Union of Canada, Nova Scotia and New Brunswick, and the Government thereof, and for purposes connected therewith : — tells what the Act provides, viz., how the Union shall take place effectually, i. e.

The Queen by and with the advice of Her Privy Council declares by proclamation, that on and after a day therein appointed, the Provinces concerned shall form and be one Dominion under the name of Canada. [The Royal Proclamation to have such an effect was issued on 22nd May, and took effect on July 1st, 1867.] See Appendix A.

That Civil Rule should know no suspension in any of the.

Provinces : —

Sec. 129 provides that all laws in force, also all Courts of Civil and Criminal Jurisdiction, and all legal commissions, powers and authorities Judicial, Administrative and Ministerial shall continue (for this purpose) in the Provinces respectively, as if the Union had not been made, subject nevertheless to be repealed or altered by the Parliament of Canada; or by the Legislatures of the Provinces, according to this Act (with exception of such as exist by Acts of British Parliament.)

Sec. 130 enacts, that until the Parliament of Canada otherwise provides, “ All officers of the several provinces having duties to> discharge in relation to matters, other than those by this Act assigned exclusively to the Legislatures of the provinces ; shall be officers of Canada, and shall continue to discharge the duties of their respective offices, &c.

No enlargement of powers or extension of limits in which they may be exercised, is made, only they are placed in relation to the New superior power of the Dominion.

The new Constitution of the Dominion of Canada, and the Constitutions, — as they may be retained, renewed or made anew for the Provinces, respectively, provide that, as one Dominion it be governed in unity, on a “ similar principle ” with the Metropolitan slate under the Constitution of the United Kingdom. The pow r er of the same Crown applies as a principle of unity ; from first to last the Government of Canada is ordered and carried on in the name and behalf of the Sovereign.

Sec. 9. The Executive Government and Authority is to continue ;and be vested in the Queen.

Sec. 15. The command-in-chief of the militia and all naval and military forces of and in Canada, is to continue and be vested in the Queen, [and of this command this Constitution takes no further cognizance.]

Sec. 10. The Governor General by the provisions of this Act, being, and carrying on the Government of Canada on the behalf and in the name of the Queen : —

Sec. 11. There shall be a council to aid and advise in the Government, to be styled the Queen’s Privy Council for Canada. Persons who are to be members of that Council shall be, from time to time, chosen, &c., by the Governor General, and sworn in. And members thereof may be, from time to time, removed by the Governor General.

It is knowm that the “ Queen’s Privy Council,” either in Great Britain and Ireland ; or in Canada (as noticed in this Act,) are identical with the Ministry of the United Kingdom, or of the Dominion, respectively, occupying the principal places in the Executive Government — it is by distinct summons and oath of duty they are inducted to the Privy Council.

From the style they bear — -unknovm before in the Provinces — it may be thought that their independence of superior authority here, and their valid competency in questions or matters in wdiich Canada is interested, when such are under consideration of the Metropolitan Government — to advise the Queen at home, in concert with Her Privy Council for the Empire, are to be ascertained in some degree hereby.

As members of the Council and heads of the Departments of Government of Canada, the Governor General, from time to time, chooses or removes them. In this case and some others he exerts his authority alone. In the general order of his Government he exerts it, in Council or in Parliament, as representative of the Crown.

Sec. 130. Among the principal officers of the Provincial Governments now confederated, as in and of the Dominion, will the Governor General choose the Queen’s Privy Council of Canada : —

And the members of the Privy Council, one or the other of them, will severally fill, as they shall- have agreed on, what provincial offices are necessary and eligible for the executive government.

Provincial Governor’s powers, held immediately from the Crown, cease on the advent of the Dominion. By Sec. 12, all powers, authorities and functions of this class of officers at the time of the Union, shall, as far as may be, after the Union be vested in and exercised by the Governor General in conjunction with the Queen’s Privy Council, or by the Governor General individually. This section serves preparatorily to a new delivery of powers, authorities and functions. The Governor General now makes appointments of Provincial Governors bearing immediate responsibility to him, as Sec. 14 authorizes him, from time to time, to appoint any person or any persons to be his Deputy or Deputies within any part or parts of Canada, to exercise such of the powers, &c., &c., of the Governor General as he shall assign to him or them. The Governor General, meanwhile, shall not be affected to the loss of any powers, &c., belonging to him.

In the Government of Ihe Dominion they are the Governor General’s Deputies, (Sec. 14,) while he is subject meanwhile to be limited and directed by the Crown in giving his commission to Deputy or Deputies.

The arrangement of the Provinces in the Union.

Secs. 5, 6, 7. Early provisions of the British North America Act, set forth the form, in which the Provinces are to make their

Confederation. (7.) The Maritime Provinces continue with limits unchanged ; and their Constitutions and Governments existing, are only altered so far as to conform them to the provisions of this Act. Even the House of Assembly of New Brunswick may last for the term of its election. The Province of Canada is disparted, as it was before known to be ; the Province of Upper Canada is now constituted and styled — Ontario, and the Province of Lower Canada is constituted and styled — Quebec.

The Constitution of the Province of Canada being broken up, and the immediate devolution of all powers, authorities and functions of its Chief executive officer being at the union vested in the Governor General of the Province — the same as far as they are capable of being exercised after the Union, in relation to the Governments of Ontario and Quebec, respectively — are to pass from the Governor General of the Dominion to the Lieutenant Governors of these provinces for their exercise, respectively, in Council or individually.

Sec. 5. Hereby the new Dominion is divided into four parts, viz., Ontario, Quebec, Nova Scotia and New Brunswick.

Sec. 25. Preliminary to the general execution of this Act, Senators are, in the first instance, summoned by the Queen’s authority, according to the Divisions of Canada, made in relation thereto, and their names are inserted in the Queen’s proclamation of Union. (See Appendix A.)

Sec. 127. If a member of the Legislative Council of Canada, Nova Scotia or New Brunswick to whom a place in the Senaie is offered, does not within thirty days thereafter, by writing under his hand, addressed to the Governor General of Canada, or to the Lieutenant Governor of Nova Scotia or New Brunswick, as the case may be, accept the same, he shall be deemed to have declined the same.

Sec. 17. There shall be a Parliament for Canada, consisting of the Queen, ihe Senate and the House of Commons. The Governor General, according to his commission, being the representative of the Sovereign.

Sec. 55. A bill passed by the Houses of Parliament and presented to the Governor General for the Queen’s assent, he shall declare either, that he withholds that assent, or shall assent to it in the Queen’s name : — if so, (sec. 56) he shall send as soon as convenient, a copy of the Act to one of Her Majesty’s Principal Secretaries of State ; and if the Queen in Council, within two years after its receipt, disallows the Act, such disallowance, with certificate of the day of its receipt, (communicated to the Governor General,) being signified by the Governor General to each of the Houses of Parliament ; or, if they are not in session, being signified by Proclamation, shall annul the Act, from and after the same day. Sec. 57. But a bill reserved for the Queen’s pleasure — as the Governor General according to his discretion, may reserve a bill — shall not have any force, unless and until two years from the day on which it was presented to the Governor General, he signifies, in either way above mentioned, that it has received the assent of the Queen in Council. An entry of every such communication of the Governor General shall be made in the Journals of each House, and a duplicate thereof shall be delivered to the proper officer, to be kept among the Records of Canada.

Sec. 132. The Parliament and Government hereby, are declared to have all powers necessary and proper for performing the obligations of Canada, as part of Ihe British Empire, towards Foreign countries in satisfaction of Treaties made.

Intercolonial Railway. — Engagements of the Government and Parliament of Canada , for its execution.

Sec. 145. The Provinces of Canada, Nova Scotia and New Brunswick have joined in a declaration that the construction of such a railway, is essential to the consolidation of the Union of British North America, and have consequently agreed that provision should be made for its immediate construction by the Government of Canada.

The British Act of Parliament, “The Canada Railway Loan Act, 1867,” or “ An Act for authorizing a guarantee of interest on a Loan to be raised by Canada towards the construction of a Railway, connecting Quebec and Halifax, dated 12th April, 1867, connected with the Act of British North America, 1867 ; — This Act shews how far the provinces distinctly named above had agreed, in the view of the essential importance of the work, and the view of the best means of early effecting it ; and shews further the concurrence of the British State, in like views of its importaxrce : — and its actual help towards its obtainment, is engaged by representations made from the Provinces. The Imperial Act says of such a line of Railway, it “ would conduce to the welfare of Canada and promote the interest of the British Empire,” and so far it hastens the action of the Government of the Union, that the benefit of this Act of Guarantee is lost “unless within two years after the Union, an Act of the Parliament of Canada has been passed, &c.” More prompt for the construction thereof, the Act of British North America in this section, prescribes as the duty of the Government and Parliament of Canada, within six months after the Union, to provide for the commencement of a Railway, connecting the River St. Lawrence with the city of Halifax, and for the speedy construction thereof without intermission, to its completion. Not less for Canada, it may be said, than for the interest of the British Empire, the British Act of Parliament for guarantee, &c., stipulates “ For the use of the Railway at all times for Her Majesty’s military and other service,” and also the guarantee takes no effect “ unless and until the line in which the Railway is to be constructed has been approved by one of Her Majesty’s Principal Secretaries of State.”

Parliament , its Form , Order , Powers.

Sec. 17. The Parliament of the Dominion of Canada is to consist of the Queen, an Upper house called the Senate, and the House of Commons.

The virtual connection of the Queen, or Regality of the Empire, with the Parliament of Canada, is the same, as that borne in the Parliament of the United Kingdom, the Governor General appearing for Her, according to his commission.

Secs. 19, 38. The Sovereign (representatively) meets with the Senate and House of Commons, from time to time, in the Parliament of the Dominion, — the Parliament is to be summoned within six months after the Union, and (sec. 20) there shall be no interval of twelve months between its last sitting in one session, and its first sitting in the next.

Sec. 18. The privileges, immunities and powers to be held, &c.,, by the Senate and by the House of Commons, and by the members thereof, respectively, shall be defined by Act of Parliament of Canada, but shall never exceed those held by the Commons' House of Parliament of the United Kingdom.

Such privileges, &c., are unequal of the Houses of Parliament of the United Kingdom, and each House defines its own. The difference in respect of the Parliament of Canada is at once made known, for — the combined powers of Parliament enact them, and with equality of privileges of the two Houses, very likely.

Sec. 133. Either the English or French language may be used in the debates of Parliament, and both these languages shall be used in the Records and Journals of the Houses : — the Acts of Parliament of Canada and of the Legislature of Quebec shall be printed and published in both.

The Senate.

Sec. 21. The Senate whose first members, as already recited, were immediately chosen by the Queen’s authority, is of seventy-two persons, chosen in divisions of twenty-four each: 1st for

Ontario, 2nd for Quebec, 3rd for the Maritime Provinces, (at thistime consisting only of Nova Scotia and New Brunswick.) In the third division, — Nova Scotia and New Brunswick return each,, twelve, but so many, only, while Prince Edward Island is not, as it may be, admitted. (Sec. 147.) There is to be no set increase in the whole number of the Senate — yet, Prince Edward Island is to have four senators awarded in its regard, on its admission into the Union ; but the representation of Nova Scotia and New Brunswick shall, as vacancies occur, be reduced from twelve to ten members, respectively.

But if Prince Edward is not, and Newfoundland (whose admission is equally provided for,) is admitted, although the number of senators assigned for Newfoundland, is the same as for Prince Edward Island, its admission will cause no reduction to Nova Scotia and New Brunswick, but will make an increase in somany members of the senate.

In case of Quebec, each of the twenty-four senators shall be appointed for one of the electoral divisions of Lower Canada,

(pointed out,) and shall be eligible also [23 (6),] by the qualification of his real property, or of his residence therein. Residence is only made generally to apply, in the other Provinces.

Sec. 23. (1) A senator shall be of the full age of thirty years.

Sec. 23. (2) He shall be a subject born, or naturalized, of the Queen.

Sec. 23. (3) Shall be seized of freehold or other described landed property of the value of $4000 above all rents, dues, &c., &c., as due or payable out of the same. Before taking his seat he shall take, &c., the oath of allegiance, and make the declaration of qualification, in the forms prescribed in the fifth schedule to the due Official.

But Sec. 23-4 is expletive of the foregoing enactment, saying, “ his real and personal property shall be together worth $4000, over and above his debts and liabilities.”

Not that it may be thought that it matters not how little, freehold property, or other real property, he is in possession of, for it seems to be meant, that he must have a title to real property of the given value of $4000. Yet notwithstanding his title — it may be encumbered by mortgages, charges, debts, &c., to such an extent that its clear value left in his possession and rightfully his, while it is so encumbered, is not of the amount of $4000, then his personal property may be fairly appraised, and if it is found of an amount equal to the casual deficiency of his real property and that it will make together with his real property, a value of $4000, he is qualified. He shall be a Resident of the province he represents.

Sec. 23-5. The Senate or Upper House, it would appear, is provided for the Dominion, by the Constitution, for a semblance of the Upper House of the British Parliament, which is, it may be said, constituted, in most part, with respect to its Members’ large proprietary of the soil. A form of Estate that gives more leisure, more genial and permanent, social and confidential connection with the community.

Sec. 29. In Canada, a Senator subject to the provisions of this Act, shall hold his place for life, but these are its provisions for his

disqualification: Sec. 31. 1st. If he discontinues his attendance in the Senate for two consecutive sessions of Parliament. 2nd. If he make his allegiance, due to a foreign power, or acquire the rights of subject or citizen, under a foreign power. 3rd. In case of his bankruptcy or insolvency. 4th. If he is attainted of treason, or convicted of felony, and if he fail to retain his qualifications in respect of property or residence. However, no disqualification for failure of residence elsewhere, — attaches to a senator holding an office under Government, and therefore residing at the seat of Government for the discharge of it.

Sec. 30. Also a senator may by writing under his hand, to the Governor General, resign his place in the Senate.