colorful representative to whom should be granted the title of Vice-Roy. As our autonomy has been increased the powers of our governors have contrariwise diminished gradually and continuously. We could now summarize the Governor's position by saying that he is the Queen's personal representative and not as he used to be the agent of Her Majesty's government in Great Britain. At the time of his appointment, the government of Canada selects its own candidate whom constitutionally the Queen must accept. It is only a case of the application of the doctrine of ministerial responsibility. The result is that the Governor General, so chosen, will exercise the executive power upon the advice of his responsible ministers but naturally in the name of the Queen. The government of Great Britain does not intervene in any way. We shall now leave the Governor General and the executive to deal with the legislative power and note that Section 17 of the B.N.A. Act states that: "There shall be One Parliament for Canada, consisting of the Queen, an Upper House, styled The Senate, and the House of Commons." The Senate has at present 102 members and the House of Commons has 265 members in accordance with the amendment made to the British North America Act in 1952. The senators are summoned to the Senate by the Governor General under the great seal of Canada and the qualifications of senators are that they shall be British subjects of thirty years of age, possessing within the province for which they are appointed real estate of the value of $4,000 clear of all encumbrances and be residents in the province for which they are appointed. The Act also provides for the disqualification of senators, for the appointment of the Speaker of the Senate, for the constitution of the House of Commons and for the elections of the members thereof. It deals further with the election of the Speaker of the House, for the procedure and quorum thereof, the voting therein, the duration of every House and the decennial readjustment of representation and the increase in the number of members. The Act provides that bills for appropriating any part of the public revenue or for imposing any tax or impost shall originate in the House of Commons, and that money votes shall be first recommended to the House by message of the Governor General. The next sections deal with the Royal-Assent to bills which have passed both houses of Parliament and with the disallowance and reservation of bills after they have been passed; it is unnecessary to insist on these provisions as they have fallen into disusage. The following part, that is: Part 5 of the B.N.A. Act, is concerned with the provincial constitutions, which are established somewhat on the model of the federal constitution, with a lieutenant-governor substituted for the Governor General, but nowadays the provinces, except Quebec, have only the lower Chamber, that is a Legislative Assembly. In Quebec there is a legislative Assembly and a Legislative Council corresponding to the Senate. Now comes a very important part of the B.N.A. Act, that is: Part 6 which deals with the distribution of legislative powers. An essential characteristic of a federal union is the division or distribution of legislative powers between the government of the Union as a whole and the several parts that compose the Union. Accordingly the Canadian constitution gives to the central government at Ottawa the control of certain matters of a general or national character and to the provincial governments the control of certain matters of a provincial or local importance. Section 91 of the B.N.A. Act gives to the Parliament of Canada amongst other things the sole or exclusive right of making laws for regulating trade and commerce, for the raising of money by any system of taxation, for the postal service, the armed forces, navigation and shipping, sea coast and inland fisheries, currency and coinage, banks and banking, bankruptcy, patents and copyrights, Indians, naturalization, the Criminal Law and penitentiaries, and the residue of powers, that is: such classes of subjects as are not assigned exclusively to the legislatures of the provinces, also for works for the general advantage of Canada. Canada and the local governments exercise certain rights in common, as for instance with respect to agriculture, and further the Dominion government has by the constitution a general power of disallowing any act of the legislature within one year after its reception from the government of a province. Now the legislature may in each province exclusively make laws in relation to certain matters enumerated in section 92, first one of which is the amendment of the constitution of the province, which power up to 1949 was not possessed by the federal parliament; and it can impose direct taxation within the province, deal with provincial offices, manage and sell its public lands and the timber and wood thereon, establish, maintain and manage, prisons, hospitals, asylums, and eleemosynary institutions in and for the province. The provinces also have jurisdiction over the municipal institutions in the province, jurisdiction respecting shops and licences, local works, the incorporation of companies with provincial objects, the administration of justice in the province and what is most important, property and civil rights in the province, and, finally all matters of a merely local or private nature in the province. Another very important function of the province is the subject of education which is dealt with in a separate section which starts by saying that: In each province the legislature may exclusively make laws in relation to education. This clause however is subject to many qualifications respecting the rights and privileges of the denominational schools and the rights of the schools of the minority in each province as those rights stood at the time of Confederation. The next part or chapter of the B.N.A. Act deals with the judicature and provides for the appointment of the judges by the Governor General in Council. Following clauses state how they shall be selected, deal with their tenure of office, their salaries and the creation of the Supreme Court, then we come to a part entitled: Revenues, Debts, Assets, Taxation. This part provides for the creation of the Consolidated Revenue Fund from which all monies are appropriated for the public service of Canada in the manner as in the Act provided, the Financial relations between Canada and its provinces, the grants and subsidies to the provinces, the conditions relating to the debts of the central government and of the provinces, of the grants to the provinces, the forms of payments, the customs and excise laws. Amongst the miscellaneous provisions which follow is section 133 which deals with the use of English and French languages. The other provisions of the Act are of less importance, except perhaps section 146 which deals with the admission of other colonies and their representation in the Senate. It is impossible to deal here with the evolution of our constitution, a general evolution which has gone ahead with the inevitability of gradualness, on account of the political genius and the broad-mindedness of Canadian statesmen who, from Macdonald and Blake to Laurier, Borden and King, to name but a few, have indicated and followed themselves the road lying ahead. But this is not only due to politicians; some years ago Stanley Baldwin said in the House of Commons at Westminster: "There is no doubt that one of the results of the war was to speed up the political development and conscientiousness of every dominion in the Empire." It is quite certain that the effect of the last war, as far as constitutional development is concerned, was no different from that of the first one. The same spirit which has prompted Canada to such an effort as it has made and to such sacrifices as we have witnessed will again unite Canada to play amongst the other nations of the world that part which is rightly hers of an equal partner that is: an independent and sovereign nation. The United Kingdom and the Commonwealth of Nations constitute nowadays, together, a new experience, built on new principles, and the nations shall witness in the future, this fact that the spiritual link which unites all the parts of this vast organization is infinitely stronger than the military power which, for a time, has held together the Empires of the past. COLONIAL LAWS VALIDITY ACT, 1865(22) 28-29 VICTORIA, CHAPTER 63 An Act to remove Doubts as to the Validity [29th June, 1865.] WHEREAS doubts have been entertained respecting the validity of divers laws enacted, or purporting to be enacted by the Legislatures of certain of Her Majesty's Colonies, and respecting the powers of such Legislatures; and it is expedient that such doubts should be removed: Be it hereby enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows: 1. The term "colony" shall in this Act include all of Her Definitions; "Colony". Majesty's Possessions abroad, in which there shall exist a legislature as hereinafter defined, except the Channel Islands, the Isle of Man, and such territories as may for the time being be vested in Her Majesty, under or by virtue of any Act of Parliament for the government of India: The terms "Legislature" and "Colonial Legislature" shall "Legislaseverally signify the authority (other than the Imperial Parlia- ture", ment or Her Majesty in Council), competent to make laws for any colony; (22) Common law is to be found partly in the statutes but, also, in customs, precedents and tradition. Before 1865, there existed a theory to the effect that legislation adopted by colonial legislatures should not be contrary or repugnant to the law of England. If at any time the legal lights in the United Kingdom were of opinion that a colonial law was unconstitutional because repugnant to the common law, they immediately recommended that a bill should be adopted by the Imperial Parliament to confirm the said colonial law. This principle was recognized in Canada although not formulated in express terms in the Union Act. As the demarcation between the fundamental and non-fundamental principles of the English law was so vague that it was impossible to define it exactly in its application the Colonial Laws Validity Act was passed in 1865 to confer upon Colonial Legislatures the power of making laws even though repugnant to the English common law, but the Act declared that a Colonial law repugnant to the provisions of an Act of the Parliament of the United Kingdom extending to the Colony either by express words or by necessary intendment should be void to the extent of such repugnancy. The Act also removed doubts which had arisen regarding the validity of laws assented to by the Governor of a Colony in a manner inconsistent with the terms of his instructions. The Act passed in 1865 for the benefit of the colonies and for the purpose of validating certain laws which might have been annulled for their repugnancy to the English common law became restrictive of the autonomy of the Dominion due to the fact that a Colonial Act repugnant to any particular law of the United Kingdom applicable to the colony was void to the extent of such repugnancy. This Act was repealed by section two of the Statute of Westminster. See notes to the Statute of Westminster, 1931 in this volume, also Problems of Canadian Sovereignty, by Maurice Ollivier, pages 99 to 105. (With permission of the Canada Law Book Com "Colonial Legislature". "Representative Legislature." "Colonial Law." Act of to Colony. "Letters Patent." Colonial Law when void for. repugnancy. Colonial not void for Colonial Law not void for inconsistency with instructions. Colonial The term "Representative Legislature" shall signify any Colonial Legislature which shall comprise a legislative body of which one-half are elected by inhabitants of the colony; The term "Colonial Law" shall include laws made for any colony, either by such Legislature as aforesaid or by Her Majesty in Council; An Act of Parliament, or any provision thereof, shall, in construing this Act, be said to extend to any colony when it is made applicable to such colony by the express words or necessary intendment of any Act of Parliament; The term "Governor" shall mean the officer lawfully administering the Government of any colony; The term "Letters Patent" shall mean letters patent under the great seal of the United Kingdom of Great Britain and Ireland. 2. Any colonial law, which is or shall be repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force or effect of such Act, shall be read subject to such Act, order, or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative. 3. No colonial law shall be or be deemed to have been, void or inoperative on the ground of repugnancy to the law of England, unless the same shall be repugnant to the provisions of some such Act of Parliament, order, or regulation, as aforesaid. 4. No colonial law, passed with the concurrence of or assented to by the Governor of any colony, or to be hereafter so passed or assented to, shall be, or be deemed to have been, void or inoperative by reason only of any instructions with reference to such law, or the subject thereof, which may have been given to such Governor, by or on behalf of Her Majesty, by any instrument other than the letters patent or instrument authorizing such Governor to concur in passing or to assent to laws for the peace, order, and good government of such colony, even though such instructions may be referred to in such letters patent, or last-mentioned instrument. 5. Every colonial Legislature shall have, and be deemed at all times to have had, full power within its jurisdiction to establish courts of judicature, and to abolish and reconstitute the same, and to alter the constitution thereof, and to make provision for the administration of justice therein; and every representative Legislature shall, in respect to the colony under its jurisdiction, have, and be deemed at all times to have had, full power to make laws respecting the constitution, powers, Constitution. and procedure of such Legislature; provided that such laws shall have been passed in such manner and form as may from Representative Legislature may alter |