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THE SOURCES OF THE LAW AND CUSTOM OF THE
The legal rules and constitutional customs that form the “Constitutional Law and Custom” of Canada are derived from seven sources:-(1) Imperial Acts, (2) Dominion Acts, (3) Provincial Acts, (4) Orders in Council issued under Imperial, Dominion or Provincial authority, (5) Orders and rules of the Dominion Parliament and of Provincial Legislatures, (6) Usages, and (7) The Letters Patent, Commission and Instructions issued to the Governor-General.
1. Imperial Acts. Though the Union Act of 1867 contains the general scheme of the Constitution it has been supplemented by several subsequent and important statutes.
The 34 & 35 Vic. (i) c. 28 conferred on the Dominion power to establish new provinces and to provide for the government of any territory not within the limits of a province.
The 38 & 39 Vic. (i) c. 38 repealed the 18th section of the Act of 1867 relating to the privileges of the Dominion Parliament and more clearly defined the powers of the legislature to determine its own privileges, and the 49 & 50 Vic. (i) c. 35 authorized the Canadian Parliament to make provision for the representation of new provinces in the Senate and House of Commons.
2. Dominion Acts. Many important statutes have been passed by the Parliament of Canada relating to its constitution. Immediately after the Union Act of 1867 came into force a series of statutes had to be passed for the organization of the different departments of State. As regards the Legislature it was not until 1885 that a general election lawl was carried regulating the election of members of the House of Commons, and several subsequent statutes have been passed on the same subject.
By the 38 Vic. c. 11 a Supreme Court was established for the Dominion, and on the admission of Rupert's Land and the North West Territories, Acts were passed forming the new province of Manitoba (33 Vic.c.3) and providing for the government of the North West Territories. These as well as other Acts will be found in the recently issued edition of the Consolidated Statutes of Canada.
3. Provincial Acts. The main features of the constitutions of Ontario and Quebec are contained in the Union Act of 1867, but as regards the other provinces, though that Act governs the division of legislative power and contains certain general provisions relating to all the provinces, recourse must be had to the respective Provincial Acts for the details of the Provincial Constitutions. It is from these Acts that the functions of the different provincial departments of State, the qualifications of members of, and electors to, the legislative Assemblies, and the organization of the Provincial Juļicature are to be learned. The custom that prevails in all the provinces, except in Prince Edward's Island, of revising the Statutes at intervals, and consolidating the law on one subject in one statute, makes the provincial statute book very accessible to students.
4. Orders in Council. The most important Orders in Council relating to Canada that have been issued under Imperial Statute are those admitting the North West Terri1 49 Vic. c. 3.
2 32 & 33 Vic. c. 3.
tories, British Columbia', and Prince Edward's Island' into the Dominion. Several Orders in Council have been issued disallowing Acts of the Dominion Parliament.
Orders in Council are often issued under the authority of Statute by the Governor and Privy Council of Canada. The Lieutenant-Governor of the North West Territories for instance carries on the government and administration of these Territories partly under the provision of the Statute Law partly under Orders of the Dominion Privy Council.
5. Orders of the Dominion Parliament and Provincial Legislatures. The Dominion Parliament and the Provincial Legislatures conduct their proceedings partly under the authority of statutes, partly under standing and other orders, and partly under customs and usages. Each House has its own standing orders and resolutions, based mainly on the practice that prevails in the English House of Commons. The written rules of the Dominion House of Commons and of the Quebec Legislative Assembly are much more detailed than those drawn up by the other legislative bodies, but all the Legislative Assemblies agree in adopting as a standing order that “in all unprovided cases the rules, usages and forms of the House of Commons of the United Kingdom of Great Britain and Ireland shall be followed.”
6. Usages. The constitutional usages that always tend to come into existence cannot be neglected, whether the effect be to supply the absence of a necessary legal rule or to modify the administration of a law. The Hon. J. S.C. Wurtele, Speaker of the Legislative Assembly of Quebec, has compiled a body of such usages in force in that assembly, and Mr Burinot, in his valuable work on Parliamentary Practice, refers to many similar usages followed by the Dominion Parliament.
7. Letters Patent and Instructions relating to the office of the Governor-General. The Letters Patent constituting the
1 30th June, 1870. ? 16th May, 1871. 3 26th June, 1873.
+ Manual of the Legislative Assembly of Quebec.
office of Governor-General and the Instructions issued to the Governor-General were revised in 1878? By these instruments he is authorized to exercise several important executive and prerogative powers vested in Her Majesty, as for instance the summoning, proroguing and dissolving parliament, the pardoning of criminals and the appointment of judges, ministers and other officers.
It is not usual on the appointment of the LieutenantGovernor of a province to issue instructions to him, but such a course has been occasionally adopted.
1 See Appendix.
1. Parties to Legislation.
In the Provinces of British Columbia and Manitoba the legislature consists of a Lieutenant-Governor and a Legislative Assembly, whilst in Quebec, New Brunswick, Prince Edward's Island and Nova Scotia it consists of a Lieutenant-Governor, a Legislative Council, and a Legislative Assembly.
North West Ter. ritories.
Provision has been made by the Dominion for the government of the North West Territories, but as yet these territories have not been formed into a province. The LieutenantGovernor in Council may make ordinances within certain limits for the government of the Territories.
2. How summoned.
Provisions It is remarkable that the British North America Act,
of the local legislatures. By section 81 power is given to the
no reference is made to the other provinces. Up to 1878 the Instruc- Instructions given to the Governor-General contained a clause
referring to the Lieutenant-Governors, and authorizing them to exercise from time to time all powers necessary in respect of the assembling, proroguing and dissolving of Legislative