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In 1844 the Imperial government adopted an Act which we might consider for a moment. The Legislative Assembly had asked by an address to the British government the right to amend the constitution of the Legislative Council, and the House of Commons in London granted this request. Accordingly, ten years later the Canadian legislature passed an Act establishing an elective upper Chamber.

As the Canadians had protested ten years previously when England abandoning its protection policy had opened its markets to all countries and had ceased to grant us the particular advantages which had been ours up till then, in the same manner ten years later, that is in 1859, by a strange coincidence which indicated the progress we had made in our evolution towards complete autonomy, it was England who strongly protested when the Canadian tariff of 1859 definitely sanctioned the principle of protection.

As we have previously mentioned, an Imperial Act passed in 1846 had authorized the colonies to enact their own tariff laws. On the strength of this authorization, Sir John Macdonald subjected English merchandise coming into Canada to tariff duties. Many members of the House of Commons at Westminster were in favour of the disallowance of an Act so audacious. Our own Minister of Finance, Sir Alexander Galt, answered them in a dispatch to the Colonial Office by which he claimed for the Canadian legislature the right to adopt its own customs tariff.

THE YEARS PRECEDING

CONFEDERATION (20)

Long before 1867 the Union Act had ceased to work properly. More particularly, the inhabitants of Upper Canada who, in 1840, had no objection to the two provinces having equal representation while they were fewer in number, could not help but think differently when their own population, much increased by constant immigration, became more numerous than that of Lower Canada. The claims for representation proportional to the population therefore came more especially from Upper Canada. On the other hand, the two political parties were at times so evenly divided, especially between 1862 and 1864, that five changes of ministry then took place and it was extremely difficult to govern under the circumstances as the fate of the government was dependent upon the transfer of a couple of votes, sometimes of single one.

Sir John A. Macdonald (21) was of the opinion that the first mention made in the legislature of a project of federation of the provinces was made by the Honourable A. J. Galt, but

(20) See Problems of Canadian Sovereignty by Maurice Ollivier, pages 34 to 36. (With permission of the Canada Law Book Company.)

(21) Speech in the House on the occasion of the debate on Confederation,

it was only in 1858, on the occasion of the formation of the Cartier-Macdonald ministry, that a political party made it an article of its programme and set out to accomplish it.

However, as stated by the Honourable George Brown on the 8th of February, 1865, this promise was more or less forgotten and no more was heard about it, at least seriously, until 1864 when it became impossible to delay any longer the solution of the political difficulties which had arisen and which were destroying our credit, our prosperity and our progress.

Anxious to make use of the tendencies towards union of the maritime provinces, the government of Canada decided to send delegates to the convention in Charlottetown. This convention was soon to be followed by another one in Quebec where the delegates of the different British colonies of North America met. Seventy-two resolutions were adopted at this conference to be used as a basis for the future constitution. These resolutions were adopted in the legislature of Canada early in 1865, after having been introduced in the Council by Sir Etienne-Pascal Taché, and, in the Assembly by Sir John A. Macdonald, supported by Sir Georges-Etienne Cartier. The proposition was as follows:

"That an humble address be presented to Her Majesty, praying that she may be graciously pleased to cause a measure to be submitted to the Imperial Parliament for the purpose of uniting the Colonies of Canada, Nova Scotia, New Brunswick, Newfoundland and Prince Edward Island in one Government, with provisions based on certain resolutions, which were adopted at a Conference of Delegates from the said Colonies, held at the City of Quebec, on the 10th October, 1864."

The maritime provinces were hesitating, however, to accept this project for reasons of a financial character, and a new conference was required which took place in London in 1866. Finally, the British North America Act was introduced in the Parliament of Westminster on the 21st of February, 1867, and was ratified the 29th of March of the same year.

THE BRITISH NORTH AMERICA ACT, 1867 Its nature with a summary of its main provisions

There has been a certain amount of discussion as to whether the B.N.A. Act was a pact or not. This discussion has taken place amongst writers on constitutional law and the subject has been perhaps more frequently mentioned in political speeches. Strictly speaking it is impossible to say that the B.N.A. Act is a pact since it is an Act of the Imperial Parliament which is supreme. On the other hand this statute cannot, in this day and age, be amended without the consent of Canada and, furthermore, it is based upon an understanding which had taken place between the different colonies. We might recall here that these resolutions constituted a compromise, a sort of pact

or understanding, and we might add that our constitution is a re-edition of this understanding with very few changes. These resolutions were adopted at the Quebec Conference which had followed that of Charlottetown and they were put in statute form at the London Conference.

As the different provinces, or colonies, as they then were called, were anxious to protect their autonomy it had been decided to have a federal union rather than a legislative one. It is true that a government less divided between different jurisdictions, consequently much stronger, if, for instance, there had been only a central government, might have obtained for Canada much sooner that independence which it now enjoys. On the other hand Lower Canada could not consent to a union where the inhabitants of the province by becoming a minority would have run the risk of seeing their nationality submerged and of losing their language, the Civil law and the traditions to which they were rightly attached.

It is not mentioned in the B.N.A. Act anymore than in the Union Act, that the Dominion should enjoy responsible government; on the contrary Section 9 of the Statute declares that the executive government and authority of and over Canada is to continue and be vested in the Queen;-Section 11 institutes the Privy Council for Canada and Section 12 states that the powers of the Governor General should be exercised by the Governor General on the advice of his Council or by the Governor General alone, as the case may be.

that:

Bourinot in his book: "How Canada is Governed" writes

"The Canadian constitution, or British North America Act of 1867, is a statute of the parliament of Great Britain, before whom as the supreme legislative authority of the empire the provinces of Canada had to come and express their desire to be federally united. In the addresses to the queen containing the resolutions of the Quebec conference of 1864, the legislatures of the provinces set forth that in a federation of the British North American provinces the system of government best adapted under existing circumstances 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 sections."

In the third paragraph the resolutions declare that "in framing a constitution for the general government, the conference, 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 as our circumstances permit". In the fourth paragraph it is stated: "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 well-understood principles of the British constitution, by a sovereign personally, or by the representative of the sovereign duly authorized."

In these three paragraphs we see clearly expressed the leading 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 governments having the control and management of certain matters naturally and conveniently belonging to them, while each government is administered in accordance with the British system of parliamentary institutions.

Here we might ask ourselves what is a constitution and we will find that it is the fundamental law of a state directing the principles upon which the government is founded and regulating the exercise of the sovereign powers, directing to what bodies and persons those powers shall be confided and the manner of their exercise.

Amongst the distinctions to be established in constitutions we should mention that of-written and unwritten constitutions. These words however should not be taken too literally as in a country which is governed by a written constitution much of the constitutional or fundamental law is unwritten and is to be found outside the written document called: "The Constitution" for instance amongst the constitutional conventions which have really the force of law. On the other hand a country has an unwritten constitution when the constitution is not contained in a single and overriding document, which does not mean however, that no part of this constitution is written. In countries like England for instance it has been said that the country did not have a constitution because it could not produce a written. document called the Constitution; "however there is no doubt that there exists an English constitution which any student of history may recognize and admire, composed of a limited number of concessions and privileges granted by the Kings of the earlier periods, of certain great leading principles admitted at different times and transmitted from generation to generation, imperishably recorded in Magna Carta and in the Petition of Right, the Bill of Rights, the Act of Settlement and many other statutes. It is composed also of traditions, customs and constitutional conventions. It means freedom to think, to live, to worship and to work our destiny as men and women who have a great mission and a great responsibility and obligation". The English Constitution is part of our own from the very preamble of the B.N.A. Act where it is stated that the provinces have expressed the desire to be federally united with a constitution similar in principle to that of the United Kingdom.

Our constitution deals with the three powers that is: the legislative the executive and the judicial. The legislative,

which makes the laws the executive, which administers them -and the judicial, which has to do with their interpretation. Our actual system of government was therefore established by the B.N.A. Act 1867 which is a law of the Imperial Parliament passed in the early part of 1867 without a division and which united at that time the province of Canada, now divided into Ontario and Quebec, with Nova Scotia and New Brunswick, and made provision at the same time for the coming in of the other provinces; the word-federation-is a misnomer for what was then created was a federal union, a system which comprises a central government to control these matters which are essential for the development, permanency and unity of the whole country and also a certain number of provincial governments to deal with local subjects, more defined, and which naturally come under their jurisdiction. The Canadian Constitution is therefore a statute of the Parliament of Great Britain before whom, as the supreme legislative authority of the Empire, the colonies had to come and express their desire to be federally united. The leading principles on which our system of government rests are clearly expressed in the resolutions of the Quebec Conference of 1864 where the legislatures set forth that they desired a federation with a central government exercising general powers over all the members of the union and a number of local governments having the control and management of certain matters naturally and conveniently belonging to them while each government is to be administered in accordance with the British system of parliamentary institutions. The act itself contained in the origin 147 sections, divided into 11 parts, dealing, amongst other things, with the union which it created, the executive government and authority of and over Canada, the legislative power divided for Canada itself amongst the Senate and the House of Commons to act in co-operation, dealing also with the provincial constitutions and, what is exceedingly important, with the distribution of legislative powers as between Canada and its provinces, and further with the judicature, with revenues, debts, assets and taxation and, finally, with miscellaneous provisions and the admission of other colonies into the union. This gives the scope of the Act itself. Now to come back to the details of these subjects by dealing first with the Executive Power which is vested in the Queen, represented by the Governor General; in practice the Executive government is in the hands of the cabinet selected from the members of the Privy Council for Canada who form the responsible advisory council of the sovereign's representative.

The position of the Governor General has been much altered since 1867; little by little his powers have diminished and today he is neither a Governor nor a General, but rather a very

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