IN considering the Constitutional history of Canada, it will be found that it divides itself naturally into four epochs. (1) The period of French rule between 1608 and 1760, (2) the period from 1760 to 1840 when representative institutions were slowly evolving to their full strength, (3) the period from 1840 to 1867 when representative government was fully established, and the Federal Union was accomplished, and (4) the period after Federation.
For some sixty years after 1608 Canada was in the control of commercial companies to whom the King had granted exclusive trading rights, and practically delegated his authority. In 1664, however, the rule of the companies came to end and regular government was established in Canada, which became neither more nor less than a French province, and so subject to the absolute monarchy of the French King. The head of the province had only such powers as were given him by the King, and these were of the smallest. The government was conducted by a Governor who was, in fact, military Governor and an Intendant whose functions included legislative work, finance, and the administration of the law. These two officers were assisted by a council, of whom the Bishop of the Roman Catholic Church was the most important member.
So long as Canada remained in the hands of France, this system, based as it was on the French principles of government, admirably suited the needs of the people ; but when, in 1760, the French rule came to an end, and Canada became the possession of England, a proclamation was issued by George III which established the first system of English government in the possession. The right was given to the people to elect representatives ; but, since the vast majority of the inhabitants were of French extraction and refused to take the prescribed oath, the concession of representative legislative bodies was withheld.
In 1774 the Quebec Act gave the first constitution to the new province, the government was entrusted to a Governor and legislative council appointed by the King, while the proposed elected assembly was postponed until the country should be more fully prepared for it.
The council by which the Governor was assisted in his work of ruling the country was called the Privy Council, and consisted of five persons chiefly members of the legislative council.
On the whole, the Quebec Act gave great satisfaction to the French Canadians, who were quite content with a system which allowed one or more of their leading men a seat on the council. The fact which in their minds was of prime importance was that the Act placed the Roman Catholic population on the same footing as the English Protestants ; that it allowed their Church, as a corporate body, to retain its property ; and that it restored French civil law in respect of property and individual rights.
With the advent of the United Empire Loyalists, as they were called, the situation was considerably changed. As we have shown in a previous chapter the immigration of this great party of English-speaking people had a great effect on the political outlook of Canada. With the Englishman’s ingrained belief in representative institutions they were inclined to be restive under the restrictions of an autocratic legislative council, in the election of which they had no voice. Constant differences, too, were arising between the English and French-speaking population, arising from the ignorance of each party concerning the civil law of the country.
With the idea of separating these two incompatible forces of ideas the British Government once again interfered in the management of the country, and separated Canada into two provinces : Upper Canada, almost entirely composed of English-speaking Protestants, and Lower Canada of French-speaking Catholics.
The object of the Constitutional Act of 1791 was to allow these two provinces to work out their salvation independent of one another. The people, for the first time, were to be represented in an assembly elected by themselves, a Governor-General was appointed for Lower Canada, and a Lieutenant-Governor for Upper Canada, both nominees of the Sovereign.
In each province was an executive body chosen by the Governor, a legislative council also chosen by the Governor, and an assembly elected by the people on a restricted franchise. A seat in either house was dependent upon certain party qualifications.
While the Act of 1791 was a great advance it had this serious drawback : the advisors of the executive were not the representatives of the people. This was particularly noticeable in the case of Lower Canada where the official class was English and the representative class was French. As a result, there was friction between the Council and an Assembly which agitated continually for the control of public expenditure in accordance with the custom of the English Parliament.
In Upper Canada, where the face difficulty did not exist, the act worked much more smoothly, It is true that an official class known as the ” Family Compact ”
held in its hands practically the Northern province, and the question of Clergy Reserves, which arose in consequence of large tracts of land granted to the Protestant Church of Canada, was fiercely debated for a long time.
The Act of 1840 gave the Canadian legislators full control of taxation, supply, and expenditure, in accordance with English constitutional principles. The lands of the Clergy Reserves were held.
The land question of Lower Canada, which raged around the existing Seigniorial tenure, was ended by buying up the claims of the Seigniors and so freeing the habitants from many vexatious restrictions which had been laid upon them. Municipal institutions were established, and local government, the affairs of counties, townships, cities and parishes was established ; and a beginning was made in the formation of a permanent civil service for the administration of public affairs.
To say that the French Canadians looked upon the Act with no amount of sympathy would understate the case. The French language was no longer on the same footing as the English language, and the fact that Upper Canada had the same representation as Lower Canada in spite of the larger population of the latter section, was considered an injustice to French Canadians. In practice it was found, however, that the Act eventually gave them the predominance in the councils of the country. By an amendment in the Union Act French became an official language, and the provision for equality of representation was a great source of strength to the French when the population of English Canada by leaps and bounds surpassed that of the lower province.
Before completing the survey of the constitutional development of Canada one must notice the Maritime provinces, that is to say, Nova Scotia, New Brunswick, Prince Edward Island, and Cape Breton, which came into the possession of England by the Treaty of Utrecht and the Treaty of Paris, 1763. A written constitution was never given by the Parliament of Great Britain to these provinces as in the case of Upper and Lower Canada, and the history of their political development is only to be found in the various official documents of Colonial Secretaries of State, despatches, statutes, and other out of the way sources.
In Nova Scotia from 1713 to 1758 the provincial govern-ment consisted of a Governor or Lieutenant-Governor and a council, which was both legislative and executive. On October 2nd, 1758, thirty-four years before the representative assembly met in Upper Canada, the legislative assembly sat at Halifax for the first time. New Bruns-wick, founded by Loyalists, was created a distinct province in 1784 and was governed by a Lieutenant-Governor and a Council, with both legislative and executive functions, assisted by an assembly elected by the people.
Though the existence of these irresponsible councils caused a certain amount of dissatisfaction in the Maritime provinces, there was less discontent than in Upper and Lower Canada, because there was less obstruction to the will of the people. In New Brunswick, especially, political feeling ran high, but this was restored by the grant of revenues to the Assembly. Before 1840 the dual function of controlling justice and executive ability was taken away from the Councils, and by 1848 responsible government was established formally as it was in the province of Canada.
Cape Breton, known in French history as the ” Ile Royale,” did not come into the power of England until 1763 when it was annexed to Nova Scotia. In 1784 it was given a special constitution with a government consisting of a Lieutenant-Governor and council, and this remained in force until, in 1820, it once more formed part of Nova Scotia.
Prince Edward Island was detached from Nova Scotia in 1769, and became a province ruled by a Lieutenant-Governor and a combined executive and Legislative Council. In 1773 the first assembly was elected. Responsible government was not actually introduced until 1850-51, when, after a long fight with absentee landlords and an autocratic government, the Assembly obtained full control of its public revenues and its local affairs.
In reviewing the period of English rule which followed on the absolute monarchy of France, we find at the close of the century 1763-1863, that the following political rights had been granted to Canada :-
1. The principles of religious equality and the preservation to the French Canadians of their law and language.
2. The adoption of English criminal law in Lower as well as Upper Canada.
3. The establishment of representative institutions in every province.
4. Complete control granted to the provinces over all local revenues and expenditure, without Imperial interference. The establishment of municipal institutions.
5. The principle of the responsibility of the Executive Council of Ministers to the legislative assembly.
The experience gained in self-government during the period 1840-60 proved that Canada needed some drastic change in her constitution in order to place her on a level with the other great powers of the world. In 1867 a council of thirty-three representative men was held and as a result a set of seventy-two resolutions was adopted in which the provinces agreed to Federal Union ; and in 1867, as we have shown, the Imperial Parliament passed the Constitution known as the British North America Act of 1867.
The conditions of the Federal Union and the means by which it was attained have been dealt with in a chapter on the Dawn of Confederation, and we are here only concerned with the constitutional side of Federation.
As regards Canada, the situation may be stated concisely : It is a Federation of Provinces controlled by a central government which exercises general powers over all the members of the Union. There are, besides, a number of local Governors controlling affairs which naturally and conveniently come within their provinces.
The Imperial Government has executive, legislative and judicial supremacy over the Dominion, and this power is vested in the Sovereign acting on the advice of the Cabinet, the judicial committee of the Privy Council, and the Parliament. The Dominion Government is the central authority of the Federation whose executive, legislative and judicial powers are exercised through a Governor-General appointed by the Sovereign, and acting under the advice of a responsible council, the Dominion parliament and a Supreme Court.
The provincial Governments have executive, legislative, and judicial powers within their constitutional limits ; such powers being vested in a Lieutenant-Governor appointed by the Governor-General in council, the Executive Council, Legislature and Judiciary.
The fundamental principle formulated in the British North America Act, that the Canadian Constitution had to be moulded on that of the British is shown very clearly in the Canadian rights of self-government. No people under British government can be taxed except with their own consent and through their representatives. This being so, since the complete system of self-government and control over taxation and expenditure has been granted to Canada, it is only by parliamentary action that taxes can be imposed or moneys expended.
Power to make Treaties with foreign countries has so far been withheld from Canada, the principle being that as a Dependency she cannot of her own action enter into an arrangement with a Sovereign nation. While this is perfectly true, it should be said that in practice, when the question of Canadian policy is under consideration the King in council chooses and gives the necessary authority to Canadian representatives to arrange Treaties immediately affecting Canada, such Treaties being subsequently passed by the Canadian Parliament, and approved by the Imperial Government.
It is a provision of the Canadian Constitution that every act passed by the parliament of Canada must be submitted by the Governor-General to the King in council. The nominal right is reserved to the Sovereign to disallow an Act which it is considered might be detrimental to the best interests of the Empire as a whole, but it would be clearly unconstitutional for the Imperial Government to interfere in any matter which is purely the local or domestic concern of the Canadian people.
At the head of the Dominion stands the Governor-General, representing the Sovereign. This functionary is generally chosen from the prominent men of England, and has the dual function of governing the Dominion whilst at the same time responsible for the interests of the Mother Country. As the head of the Executive it is the duty of the Governor-General to assemble, prorogue, and dissolve parliament, and to assent or reserve the bills passed by parliament in matters of imperial interest.
He consults with his Council and submits their views to the Secretary of State in England. On Canadian questions he is bound by the advice of the Council, and should he differ from them on any vital question of policy or principle, he must either accept their views or exercise his dangerous power of dismissing the Ministry, which latter alternative it is certain would never be adopted.
Representing the Sovereign, and being at the head of the Dominion of Canada, the Governor-General is expected to keep himself entirely aloof from all political controversies ; and, with no axe to grind, and no end in view but the good of the Dominion of Canada, he necessarily holds a position of some importance in the scheme of political affairs. With very obvious limitations he may perhaps be regarded as the constitutional Sovereign pro tem. of Canada.
The council which advises the Governor-General of Canada is known as the ” King’s Privy Council for Canada.” It occupies precisely the position of the English Privy Council, that is to say, that its members when not actually in the Cabinet retain their honorary rank but have no duties. Ministers nominated by the Governor-General are first of all appointed to the Privy Council and then hold certain public offices.