ments were taking place. G. B. Adams, The British Empire and a League of Peace (London, 1919), is a consideration of the empire in relation to wider issues. The writings of Mr. J. S. Ewart and M. Henri Bourassa should not be overlooked, and the leading articles in Le Devoir (Montreal, 1914–21) will repay study. W. S. Wallace, The Growth of Canadian National Feeling' (Canadian Historical Review, vol. i, pp. 136 ff.), is an excellent introduction to the history of the growth of Canadian constitutional consciousness. In the New Statesman (Feb. 8, 1919) and the Contemporary Review (July 1921) I have attempted to sum up Canadian public opinion on the issues. The standard biographies continue of value, especially O. D. Skelton, Life and Letters of Sir Wilfrid Laurier (2 vols., Oxford, 1921). R. A. Eastwood, The Organization of a Britannic Partnership (London and Manchester, 1922), contains an excellent study of developments and sober and judicial conclusions.]

CHAPTER XXII

THE FRAMEWORK AND SCHEME OF

GOVERNMENT

THE constitution of Canada is partly written and partly unwritten. The unwritten constitution includes all the great landmarks in British history in so far as they are working principles-Magna Carta, the Petition of Right, the Bill of Rights, the Habeas Corpus Acts, the Act of Settlement—as well as the generally recognized conventions and usages. The written constitution is found in a series of Acts known and quoted as the British North America Acts, 1867-1915.1 A general consideration of these Acts in their terms and workings is the best introduction to the scheme of Canadian government.

Executive authority is vested in the crown, and is exercised in the federal sphere by a governor-general, and in the provincial spheres by lieutenant-governors. Legislative power for the dominion is entrusted to a bi-cameral parliament consisting of a senate and a house of commons. Legislative power in the dominion is distributed between the federal and the provincial legislatures. To the former is given a general power, and an exclusive authority to deal with twenty-nine enumerated subjects; to the latter are assigned sixteen enumerated subjects on which they have exclusive power to legislate. By a special clause they possess sole power over education. Concurrent legislative authority exists over agriculture and immigration.2

When an Act is passed by the federal government the governorgeneral may assent to it, he may withhold assent, or he may

1 Kennedy, op. cit., pp. 694 ff. The British North America Act of 1867 is in the Appendix, pp. 459 ff.

2 For the distribution of legislative power, see chapter xxiv.

reserve it for the consideration of the imperial government, which may in addition disallow within two years any Act to which assent has been given. In the provinces the lieutenantgovernors are guided by the same regulation, but the power of disallowance belongs to the dominion and will be discussed later.

The judges of the superior, district, and county courts in each province are appointed by the governor-general, except those of the courts of probate in Nova Scotia and New Brunswick. They hold office during good behaviour and are removable by the governor-general on address from the parliament of Canada.

With this general scheme in mind it is possible to examine more closely the great divisions of the constitution: (a) The crown in Canada; (b) The federal and provincial executives; (c) the federal and provincial parliaments; (d) the judicature ; (e) the legislative power in Canada. The first four can be considered in relation to the general scheme, the last requires separate and fuller treatment.

The imperial crown is one and indivisible and is not broken up between the British Isles, the dominions, and the rest of the empire. Whatever the constitutional rights of the crown they can be exercised in Canada, but through responsible ministers, as this is the method by which these rights find expression wherever responsible government exists under the crown. The imperial power to veto a dominion Act is an interesting illustration of the unity of the crown. It is true that consultation and amicable workings between Ottawa and London have made this veto of little actual importance in Canadian history, and that, since equality of status has been claimed for and conceded to Canada, the right has been practically abandoned by the imperial government, yet its existence even as a theory may be noted in this connexion. All laws, whether federal or provincial, are enacted by the king in parliament. The governor-general, who is appointed by the king on advice, represents the crown

in federal government. A convention has grown up in relation to his appointment. No governor-general is sent to Canada without consultation with and approval by the Canadian government. His official acts are with the advice of the privy council for Canada'. This enactment is rather vague, as the privy council in Canada is purely an honorary body. But, as has been pointed out, the conventions of the constitution apply to Canada, and although there is no express mention of responsible government in the written constitution, the governor-general acts on the advice of his ministers. On the other hand, he is not a viceroy. His authority is limited by his instructions or by statute, and he cannot exercise other powers of the crown unless they are legally delegated to him. The changes before 1914 in connexion with his office have been considered. Since that date there have been developments. The new method of communication between the imperial and Canadian governments has resulted in robbing him of his ambassadorial functions, and his duties are at present confined to those of the constitutional head of a state. He is the visible link between the United Kingdom and Canada, and his office emphasizes the unity of the crown within the empire. He represents the king, not the British government or the colonial office. The crown is represented for the purposes of provincial government by a lieutenant-governor in each province. He is appointed by the governor-general in council, but, as will

1 Macdonald apparently disapproved of this convention: Macdonald to Stanley, December 6, 1888. On the other hand, the Marquis of Lorne when governor-general told Macdonald that he was all in favour of it: Lorne to Macdonald, May 16, 1883. Pope, Correspondence of Sir John Macdonald, pp. 300, 433.

6

2. The administration of public affairs is conducted by ministers responsible to parliament and the governor-general acts by their advice. By convention, his appointment is subject to the approval of the government of the day, and his functions as an imperial officer are formal rather than real: his office as representative of the crown exhibits the constitutional unity of the empire. ... He has become in fact a nominated president': R. L. Borden, Canadian Constitutional Studies, pp. 61, 93.

appear later, he exercises all the functions of the crown necessary for provincial government and is no mere creature of the federal executive. His position or constitutional functions cannot be altered by any Act, federal or provincial.

The executive government of the dominion is carried on by a cabinet of ministers selected from the political party in power. Appointments are made by the governor-general on the recommendation of the premier. Ministers in charge of a department are paid a salary, but a minister without portfolio receives no remuneration. While a premier has all his supporters from whom to choose his colleagues, yet almost a class of conventions has grown up in connexion with the formation of a federal cabinet. The interests of Quebec generally and of the Englishspeaking Canadians in that province particularly must be considered. Then the Roman catholics in other provinces than Quebec must not be overlooked. Some effort, too, must be made to give to the cabinet as balanced a representation as possible of the various constituent provinces in the federation.1 Every cabinet minister who sits in the house of commons must seek re-election on accepting a paid portfolio.

As soon as a cabinet has taken the oaths of office they act with the governor-general as the executive government of Canada. They are responsible for all orders in council, for the finance bill, for all government measures. All arrangements for the administration of Canada are made at cabinet meetings, and in so far as these are accepted and acknowledged as government measures

1 See pp. 317-18, 413-14, and compare Macdonald to J. A. Chapleau, June 6, 1888: The time has come, I think, when we must choose men for their qualifications rather than for their locality' (Pope, op. cit., p. 414). See also Report of the Special Committee on the Machinery of Government in Canada (1919), pp. 8 ff., and the present premier's memorandum on his choice of ministers: In the formation of the government I have aimed above all else at national unity. This end I have felt would be served, and the federal spirit of our constitution most acceptably recognized, by according representation in the cabinet, so far as might be possible, to all the provinces of Canada. . . .' (Toronto Daily Star, December 30, 1921).