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ON the 1st day of July in the present year (1888) the Canadian federation attained its majority; twenty-one years having elapsed since by an Order in Council the Provinces of Ontario, Quebec, Nova Scotia and New Brunswick were formed into the Dominion. Twenty-one years is not a long period in the life of a State, and it is not to be expected that the Constitution of Canada will prove as instructive. a subject of study as that of the United States with its hundred years of growth and development. But in many respects the Canadian Constitution offers a special field for the inquirer. It is a successful effort to solve the problem of uniting distinct states or provinces under a central government. A similar task had already presented itself to an English speaking people, but the conditions of the problem. solved in Canada differed in many respects from the conditions that faced Washington and his associates. While the American States had to create not merely a central government but a government which, within the limits laid down, should be supreme, the Canadian Provinces had to organize a Union subject to a supreme Executive, Legislature and Judicature all of which already existed. The executive supremacy of the Queen, the legislative power of the Imperial Parliament, and the judicial functions of the Privy Council
and U. S.
remained unaffected by the Union, and this to some extent simplified the work to be done.
It has been more than once stated that the Canadian Constitution is a mere copy of the American. Such a statement is very far from the truth. That the framers of the Quebec resolutions adopted portions of the American system is undoubted, but every care was taken to avoid those weak points in that system which the experience of years had brought to light. "We e can now," said Sir John Macdonald when moving in the Legislative Assembly of Canada the resolution in favour of the Union, "take advantage of the experience of the last seventy-eight years during which the (U. S.) Constitution has existed, and I am strongly of belief that we have in a great measure avoided in this system which we propose for the adoption of the people of Canada the defects which time and events have shewn to exist in the American Constitution." The election of a President for a term of four years, the independence of the President during this period both of his ministers and of Congress, and the delegation to the central Government of definite specified powers leaving the balance of legislative power in the States, are three of the most important characteristics of the United States Constitution. But not one of these principles was adopted in Canada. The Executive authority was vested in the Crown, represented in Canada by a Governor-General (appointed by the Crown), who is required to act by the advice of a ministry responsible to the Canadian Parliament. Specified powers only are given to the Provinces, the balance of legislative power being lodged in the Dominion or in the British Parliament, for the belief prevailed in Canada that the exceptional powers of the American States and the doctrine of state rights had been leading factors in bringing about the great Civil War. Further differences between the two Constitutions will be referred to later on,
The English Constitution and the Constitution of the Influence different North American Colonies at the time furnished Constitumany suggestions which were embodied in the Act of Union. tion. The House of Lords was taken as the type of the Senate or Upper House, nomination for life being substituted for the hereditary principle. The practice of introducing money bills in the House of Commons on the advice of a minister was adopted, and the procedure of the British Parliament was followed as to the manner and method of passing bills. No important change was introduced in the constitution of the executive or legislative bodies of the provinces, except that the province of Canada was divided into the provinces of Ontario and Quebec, and a separate constitution was given to each.
During the years immediately succeeding the Union the Legisla Dominion was chiefly engaged in the work of organization. activity of Different departments of state had to be created and appropriate duties assigned to each minister. From 1870 to 1873 arrangements were concluded that resulted in the admission of British Columbia, Prince Edward's Island, and the North West Territories into the Union, in the formation of the province of Manitoba, and in the organization of a government for the Territories. Under the term North West Territories was included all territory not within the jurisdiction of a province, and it embraced not only lands bordering on the Arctic Seas, but lands between the Eastern boundary of Ontario and the Western boundary of British Columbia, and extending as far south as the boundary of the United States. The acquisition of the Territories gave the Dominion jurisdiction from the Atlantic to the Pacific, and rendered possible the physical union of the provinces by means of the Canadian Pacific Railway.
In 1875 the Dominion established a Supreme Court, but such Court, it should be remembered, is not "supreme" in the American sense of the term, as an appeal may lie, if
General scheme of Constitution.
not of right yet by special permission of the Crown, from such Court to the Judicial Committee of the Privy Council. Subsequent years saw further results of activity on the part of the Canadian legislature in the establishment of a uniform election law throughout the Dominion (1885) and in the revision and consolidation of all the statutes passed since 1867, a work not yet fully completed.
In surveying a Constitution it seems desirable for many reasons to work upwards rather than downwards, that is to say, to begin with the local institutions and end with the central government. In the case of Canada this method is specially appropriate, as the legislative powers of the Dominion cannot be understood without reference to the powers of the Provinces. It also seems desirable before referring to the executive which administers laws or the judicature which enforces laws to deal with the legislature which enacts laws. In this work the Province comes under consideration before the Dominion and the legislature before the executive.
The general scheme of the Canadian Constitution may be described as follows. The Legislative power, subject always to the supremacy of the Imperial Parliament, is divided between a central legislature and the provincial legislatures. The Executive power in theory is lodged in the Queen, but in practice it is exercised by three executive bodies, viz. the Lieutenant-Governor with his Provincial Council, the Governor-General with his Privy Council, and the Queen with the English Ministry. The sphere of executive power in each case corresponds with the sphere of legislative power; the supremacy of the Crown preventing or determining any executive conflict between the Dominion and a province. Each province establishes its own courts of judicature, but a Supreme Court, constituted by the Dominion, acts as a Court of Appeal, from which a further appeal may,