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 :

Be it enacted by the Governor, Council and Assembly, as follows:

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 Governor General extend and apply to the Governor General for 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

Application of referring to

Provisions

Governor General.

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.

of

for Canada

11. There shall be a Council to aid and advise in the Constitution Government of CANADA, to be styled the Queen's Privy Privy Counci 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 wereafter the triumph of Parliamentary rule over the usurpations of the Executiverestrained 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,"

or

it was by Section 5 enacted, "that neither His Majesty, nor his Privy Council, have or ought to have any Jurisdiction, Power Authority, by English Bill, Petition, Articles, Libel, or any other arbitrary way whatsoever, to examine or draw into question, determine or dispose of the Lands, Tenements, Hereditaments, Goods, or Chattels of any of the subjects of this Kingdom; but that the same ought to be tried and determined in the ordinary Courts of Justice and by the ordinary course of the law."

The Privy Councillors were also prohibited by that Statute, under heavy penalties, from restraining any persons of their liberty by "warrants and directions," and from exercising judicial functions, by hearing and determining matters affecting the property of the subjects of the Kingdom.

The function of advising the Sovereign in the government of the Kingdom is now discharged as to all important matters of State by a select portion of this Council called the Cabinet Council, who, after being sworn in as Privy Councillors, receive their appointment to all the principal offices of State from the fact of being the leading members of the political party having the ascendancy in the House of Commons. This Cabinet Council or Ministry practically administer the Government, and become responsible for its measures, resigning their office if the Sovereign does not follow their advice, or if their political party ceases to be in the ascendancy in the House of Commons. this way is responsibility brought home to the Executive Department, and harmony of action established between the Executive and the Legislative branches of the Government, and in this way the House of Commons is able to exercise a control over all the Departments of the Executive administration.

In

The King, nevertheless, has a right to dismiss his Ministry, and to appeal to the people to support a new administration. For the opposition to attempt to restrain him in the exercise of this right, and to coerce him by a majority of the existing House of Commons, would be overstepping the constitutional limit of their power. (Macaulay's Hist. of Eng. c. 20. and 2 May Cons. Hist. of Eng p. 79).

The origin of the Cabinet Council, now established as an essentinl feature of Parliamentary Government in England, is thus given by Macaulay:

Down to the year 1693, William III distributed the chief offices in the Government equally between the two parties, a policy which not only failed to secure the necessary co-operation of either but even allowed of open hostility between the various Ministers of

the Crown, as well in the discharge of their executive duties as in the discussions in Parliament.

The statesman who had the chief share in forming the first English Ministry was the Earl of Sunderland, whose opinion was, that as long as the King tried to balance the two great parties against each other and to divide his favor equally between them, both would think themselves illused, and neither would lend to the Government their hearty and steady support, which was now greatly needed. The King, however, hesitated long before he would bring himself to quit that neutral position which he had long occupied between the contending parties, but finally acted upon this advice, and entrusted all the chief administrative offices to the Whigs who commanded a majority in the House of Commons.

Neither William nor the most enlightened of his advisers fully understood the nature and importance of that noiseless revolution, for it was no less, which began about the close of 1693, and was completed about the close of 1696. But everybody could perceive that, at the close of 1693, the chief offices in the Government were distributed not unequally between the two great parties; that the men who held those offices were perpetually caballing against each other, haranguing against each other, moving votes of censure on each other, exhibiting articles of impeachment against each other; and that the temper of the House of Commons was wild, ungovernable, and uncertain. Everybody could perceive that, at the close of 1696, all the principal servants of the Crown were Whigs, closely bound together by public and private ties, and prompt to defend one another against every attack, and that the majority of the House of Commons was arranged in good order under those leaders, and had learned to move, like one man, at the word of command. (Hist. of Eng. c. 20.)

May, thus describes the introduction of a Cabinet Council into the Government of the Canadian Provinces.

After the reunion of the Canadian Provinces, in 1840, a remedy was sought for disagreements between the Executive and the Legislature on that principle of ministerial responsibility, which had long been accepted as the basis of Constitutional Government in England, and in 1847, Responsible Government was fully established under Lord Elgin. From that time the Governor-Generals elected their advisers from that party which was able to command a majority in the Legislative Assembly, and accepted the policy recommended by them.

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