ePub 版

of national unity, and I would not accede to the principle of State sovereignty in this Confederation—the provinces delegating certain powers to the General Government and reserving the residuum of power to themselves. We have abundant evidence of the dangerous character of the doctrine of state supremacy in a Confederation. I would remind the house of the early ruin that threatened the United States under their first Constitution, which was an embodiment of this vicious principle.

The leading minds of America while the republic was yet in its infancy felt that the doctrine of State supremacy was one calculated to foster anarchy, and was sure to bring the early destruction of the fabric that they had reared. They labored to remove the evil and transfer the sovereignty to the Central Government, as their only hope of maintaining permanent peace and order, and of imparting stability to their system. I think, sir, it becomes us, in framing a constitution for these provinces, to profit not only by the early but by the later experience of our neighbors, to enquire, how far they succeeded in eradicating the evil from their new constitution, and to what extent their present troubles are chargeable to what is left in their system, of the dangerous principle referred to.

Attorney General Cartier said:

Every one who knew anything of his past public course was aware that he was opposed to the principle of representation by population while Upper and Lower Canada were under one Government. He did not regret his opposition. If such a measure had been passed, what would have been the consequence 2 There would have been constant political warfare between Upper Canada and Lower Canada. The consequence of representation by population would have been that one territory would have governed another. He had come to the conclusion that Federation was desirable and necessary. He was aware that some members of the House, and a number of people in Upper Canada, in Lower Canada and in the Lower Provinces were of opinion that a Legislative Union ought to have taken place instead of Federal Union. He would say, however, at the outset that it was impossible to have one Government to deal with all the private and local interests of the several provinces forming the combined whole. No other scheme presented itself but the Federation system, and that was the project which now recommended itself to the Parliament of Canada. Some parties—through the press and by other modes— pretended that it was impossible to carry out Federation, on account of the differences of races and religions. Those who took this view of the question were in error. It was just the reverse. It was precisely on account of the variety of races, local interests, etc., that the Federation system ought to be resorted to, and would be found to work well.

Hon. John A. Macdonald said:

The third and only means of solution for our difficulties was the junction of the provinces either in a Federal or a Legislative Union. Now, as regards the comparative advantages of a Legislative and a Federal Union, I have never hesitated to state my own opinions. I have again and again stated in the House, that, if practicable, I thought a Legislative Union would be preferable. I have always contended that, if we could agree to have one government and one parliament, legislating for the whole of these peoples, it would be the best, the cheapest, the most vigorous, and the strongest system of government we could adopt. But, on looking at the subject in the Conference, and discussing the matter as we did, most unreservedly, and with a desire to arrive at a satisfactory conclusion, we found that such a system was impracticable. In the first place, it would not meet the assent of the people of Lower Canada, because they felt that in their peculiar position—being in a minority, with a different language, nationality and religion from the majority, in case of a junction with the other provinces, their institutions and their laws might be assailed, and their ancestral associations, on which they prided themselves, attacked and prejudiced; it was ound that any proposition which involved the absorption of the individuality of Lower Canada—if I may use the expression—would not be received with favor by her people. We found, too, that there was as great a disinclination on the part of the various Maritime Provinces to lose their individuality, as separate political organizations, as we observed in the case of Lower Canada herself. Therefore, we were forced to the conclusion that we must either abandon the idea of union altogether, or devise a system of union in which the separate provincial organizations would be in some degree preserved. So that those who were, like myself, in favor of a Legislative Union, were obliged to modify their views and accept the project of a Federal Union, as the only scheme practicable, even for the Maritime Provinces. Because, although the law of those provinces is founded on the common law of England, yet every one of them has a large amount of law of its own—colonial law framed by itself, and affecting every relation of life; such as the laws of property, municipal

and assessment laws; laws relating to the liberty of the subject, and to C

all the great interests contemplated in legislation; we found, in short, that the statutory law of the different provinces was so varied and diversified, that it was almost impossible to weld them into a Legislative Union at once.

I am happy to state—and indeed it appears on the face of the Resolutions themselves—that, as regards the Lower Provinces, a great desire was evinced for the final assimilation of our laws. One of the resolutions provides, that an attempt shall be made to assimilate the laws of the Maritime Provinces and those of Upper Canada, for the purpose of eventually establishing one body of statutory law, founded on the common law of England, the parent of the laws of all those provinces.

A scheme of Confederation on a very extended scale, embracing the United Kingdom and all the British possessions, seems to be advocated by some British statesmen.

At a meeting of the Royal Colonial Institute of London, on the 20th January, 1880, when the subject of the development of Canada was under discussion, His Grace the Duke of Manchester, who presided, said:

My idea of a Federal Union is, that there should be legislation for each part of the Empire and the United Kingdom; that there should be another Legislature, in which Canada and the United Kingdom should be represented on mutual terms for Imperial purposes, not dealing with local questions.

I think, that if there were a great Empire—a Federal Empire of England and her Colonies—that even the United States might perhaps not think it degrading to them to join the Confederation; I think, that it is not impossible that we may yet have such a magnificent position.

In the establishment of the Federal Union under this Act, it is announced in the preamble that the nature of the Executive Government is declared, and the constitution of the Legislative authority provided for, and it appears, moreover, to be well settled law that the Crown, after having delegated the power of legislation to a local Assembly of a Colony, cannot interpose and exercise legislative powers in local matters—(Campbell v. Hall, 20 Howell's S. T., p. 328 —Bishop of Natal, 11 Jur., N.S., part 1, p. 353.)


\ 1. This Act may be cited as “The British North Amer-short title. ica Act, 1867.”

2. The Provisions of this Act referring to Her Majesty Aoi...of

Provisions the Queen, extend also to the Heirs and Successors of Her “..." "

Majesty, Kings and Queens of the United Kingdom of Great
Britain and Ireland.

Blackstone says (1 Com. p. 189–195):

The Supreme Executive power of the English nation is vested in a single person, and is hereditary or descendible to the next heir on the death or demise of the last proprietor. The doctrine of hereditary right, however, does by no means imply an indefeasible right to the throne; * * this is strictly consonant to the laws and constitution of England, as may be gathered from the expression so frequently used in the Statutes of the “King's Majesty, his heirs and successors.” The word “successors,” distinctly taken, must imply that this inheritance may sometimes be broken through, or that there may be a successor without being heir of the King. And this is so extremely reasonable, that, without a power to defeat this hereditary right lodged somewhere, our polity would be very defective. * * In the King, Lords and Commons, in Parliament assembled, the laws have expressly lodged it.

It is a provision of Magna Charta, and also by special enactment (7 and 8 Will. 4, c. 25), that Parliament shall be regularly summoned by the King's writ to assemble at a certain time and place.

But it is also enacted by 37 Geo. 3, c. 127 : “That in case of the demise of His Majesty, his Heirs or Successors, subsequent to the Dissolution or Expiration of a Parliament, and before the day appointed by the writ of summons for assembling a new Parliament, then, and in such case, the last preceding Parliament shall immediately convene and sit at Westminster, and be a Parliament to continue for and during the space of six months, and no longer, to all intents and purposes as if the same Parliament had not been dissolved or expired,” and so in case of the demise of a successor to the Crown within six months after his succession without his having dissolved the Parliament, or after the same shall have been dissolved and before a new one shall have met. In case of the demise of the King, his heirs or successors, on or after the day appointed for the assembling, a new Parliament shall immediately after such demise convene and sit at Westminster, and be a Parliament to all intents and purposes.

Declaration of


1st July 1867 Date of Union


3. It shall be lawful for the Queen, by and with the Advice of Her Majesty's Most Honorable Privy Council, to declare by Proclamation that, on and after a Day therein appointed, not being more than Six months after the passing of this Act, the Provinces of Canada, Nova Scotia, and New Brunswick shall form and be One Dominion under the name of CANADA ; and on and after that day those Three Provinces shall form and be One Dominion under that Name accordingly. A Proclamation for carrying into effect this enactment for uniting the

Provinces of Canada, Nova Scotia and New Brunswick into one Dominion under the name of CANADA, was given by Her Majesty at Windsor Castle on the 22nd

May, 1867, Declaring, that on and after the first day of July, 1867, the said

Provisions o

Provinces shall form and be one Dominion, under the name of CANADA.

of 4. The subsequent Provisions of this Act shall, unless

f it is otherwise expressed or implied, commence and have effect on and after the Union, that is to say, on and after the Day appointed for the Union taking effect in the Queen's Proclamation; and in the same Provisions, unless it is otherwise expressed or implied, the name CANADA shall be taken to mean CANADA as constituted under this Act.

Four Provinces. 5. CANADA shall be divided into Four Provinces, named

Provinces of

Ontario and

Provinces o
Nova Scotia

Ontario, Quebec, Nova Scotia, and New Brunswick.

6. The Parts of the Province of Canada (as it exists at the passing of this Act) which formerly constituted respectively the Provinces of Upper Canada and Lower Canada shall be deemed to be severed, and shall form Two separate Provinces. The Part which formerly constituted the Province of Upper Canada shall constitute the Province of Ontario; and the Part which formerly constituted the Province of Lower Canada shall constitute the Province of Quebec.

f 7. The Provinces of Nova Scotia and New Brunswick

se:* shall have the same Limits as at the passing of this Act.

« 上一頁繼續 »