« 上一頁繼續 »
8. In the general Census of the Population of CANADA which is hereby required to be taken in the Year One thousand eight hundred and seventy-one, and in every Tenth Year thereafter, the respective Populations of the Four Pro
vinces shall be distinguished.
The following table is taken from the Statistics published by the Dominion Government. It includes Newfoundland, though she forms no part of the Domi
The number of the aboriginal population here assigned to the Province of Manitoba is made up only of the Indians for whom that Province constitutes the hunting and fishing territory, and which necessarily differs from that supplied by the reports and memoranda which register the population by groups
assembled for Trade cr Councils.
Declaration of 9. The Executive Government and Authority of and role over CANADA is hereby declared to continue and be vested in the Queen.
Queen. The political lawyers in the several parts of the Dominion have not agreed in their conceptions of the powers delegated by the B. N. America Act, 1867, as is made manifest from the examination of the authority contained in the heading of the laws passed in the Dominion and Local Legislatures, viz:— DoMINIon.—30 Vict. Imp. c. 3 (The B. N. A. Act, 1867), Sect. 9.
“The Executive Government and authority of and over Canada is hereby declared to continue and be vested in the Queen.”—Sec. 17: “There shall be one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House of Commons.”
Heading of Dominion Statutes:—
“Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada enacts as follows":—
“There shall be a Legislature for Ontario, consisting of the Lieut.Governor and of one House, styled the Legislative Assembly of Ontario.”
Heading of laws in Ontario:— “Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows":—
“There shall be a Legislature for Quebec, consisting of the Lieut.Governor and of two Houses, styled the Legislative Council of Quebec, and the Legislative Assembly of Quebec.”
Heading of Laws in Quebec :—
“Her Majesty, by and with the advice and consent of the Legislature of Quebec, enacts as follows”: —
The heading of Statutes in Ontario and Quebec may have been influenced by their previous constitution, the Union Act, 3 and 4 Vic, c. 35 (1840), of which sec. 3 says:
“Her Majesty shall have power, by and with the advice and consent of the Legislative Council and Assembly of Canada, to make laws for the peace and welfare and good government of the Province of Canada.”
B. N. A. Act, 1867, sec. 88:The constitution of the Legislature of each of the provinces of Nova Scotia and New Brunswick shall, subject to the provisions of this Act, continue as it exists at the Union, until altered under the authority of this Act. Heading of laws in New Brunswick:— Be it enacted by the Lieut.-Governor, Legislative Council and Assembly, as follows:— In Nova Scotia:– T}e it enacted by the Governor, Council and Assembly, as follows:— In Prince Edward's Island:— Be it enacted by the Lieutenant-Governor, Council and Assembly, as follows:— In Manitoba :— Her Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of Manitoba, enacts as follows:— In British Columbia, before Confederation:— Be it enacted by the Governor of British Columbia, with the advice and consent of the Legislative Council thereof, as follows:— Since Confederation:— Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows: — In Newfoundland :— Be it enacted by the Governor, Legislative Council and Assembly, in Legislative session convened, as follows:—
10. The Provisions of this Act referring to the Gover- **.*.*.* nor General extend and apply to the Governor General for 6.5. the Time being of CANADA, or other the Chief Executive * Officer or Administrator for the Time being carrying on the Government of CANADA, on behalf and in the Name of the Queen, by whatever Title he is designated.
Story (Com. on Cons. Sec. 524–529) remarks:
When we maintain as a fundamental maxim of Government that a separation of the three great departments of Government, the
Executive, Legislative, and Judicial, is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connexion or dependence the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole, would subvert the principles of a free constitution. This was obviously the view taken of the subject by Montesquieu and Blackstone in their commentaries; for they were each speaking with approbation of a constitution of Government, which, in a general view, embraced this division of powers but which, at the same time, established an occasional mixture of each with the others, and a mutual dependency of each upon the others. The slightest examination of the British Constitution will at once convince us that the Legislative, Executive, and Judiciary departments are by no means totally distinct and separate from each other. The Executive Magistrate forms an integral part of the Legislative department; for Parliament consists of the King, Lords and Commons: and no law can be passed except by the assent of the King. Indeed he possesses certain prerogatives, such as, for instance, that of making foreign treaties, by which he can impart to them a limited force and operation. He also possesses the sole appointing power to the Judicial department; though the judges, when once appointed, are not subject to his will or power of removal. The House of Lords also constitutes, not only a vital and independent branch of the Legislature, but is also a great Constitutional Council of the Executive Magistrate, and is, in the last resort, the highest appellate judicial tribunal. Again, the other branch of the Legislature, the Commons, possesses in some sort a portion of the Executive and Judicial power, in exercising the power of accusation by impeachment; and in this case, as also in the trial of peers, the House of Lords sits as a grand Court of trial for public offences. The powers of the Judiciary department are indeed more narrowly confined to their own proper sphere, yet still the judges occasionally assist in the deliberations of the House of Lords by giving their opinions upon matters of law referred to them for advice. Each department of Government should have a will of its own, each should have its own independence secured beyond the power of being taken away by either or both of the others; but, at the same time, the relations of each to the other should be so strong that there should be
a mutual interest to sustain and protect each other. There should not only be constitutional means, but personal motives, to resist encroachments of one on either of the others. Thus, ambition would be made to counteract ambition; the desire of power, to check power; and the pressure of interest, to balance an opposing interest. There seems no adequate method of producing this result but by a partial participation of each, in the powers of the other; and by introducing into every operation of the Government, in all its branches, a system of checks and balances, on which the safety of free institutions has ever been found essentially to depend. Thus, for instance, a guard against rashness and violence in legislation has often been found by distributing the power among different branches, each having a negative check upon the other. A guard against the inroads of the Legislative power upon the Executive, has been in like manner applied, by giving the latter a qualified negative upon the former; and a guard against Executive influence and patronage, or unlawful exercise of authority—by requiring the concurrence of a select council or a branch of the Legislature, in appointments to office and in the discharge of other high functions —as well as by placing the control of the revenue in other hands.
11. There shall be a Council to aid and advise in the Government of CANADA, to be styled the Queen's Privy Council for CANADA; and the Persons who are to be Members of that Council shall be from Time to Time chosen and summoned by the Governor General and sworn in as Privy Councillors; and Members thereof may be from Time to Time removed by the Governor General.
As shown by Blackstone (1 Comm. 229–234) the function of advising the Supreme Executive of the United Kingdom, in the discharge of his official duties, was at first assigned by law to a Council of the King's own choosing, designated as his Privy Council. But owing to their oppressive exercise of authority, as tools in the hands of a tyrannical Executive, their powers were— after the triumph of Parliamentary rule over the usurpations of the Executive— restrained and defined by Statutory enactments, and their Judicial powers were by Statute (16 Charles I c. 60) limited to Colonial and Admiralty causes, and causes arising outside the jurisdiction of the Courts of the United Kingdom, and to matters, the determination of which specially appertains to the Crown in the proper exercise of its Prerogative.
By that Statute, entitled “An Act for the regulating of the Privy Council and taking away the Court commonly called the Star Chamber,”
Privy Counci for Canada