CHAPTER VIII.

CONSTITUTION OF PARLIAMENT.

The Constitution of 1867 provides that there shall be "one Parliament for Canada, consisting of the Queen, an Upper House, styled the Senate, and the House of Commons." We have already seen that the sovereign is represented by a governor-general who, in person or by deputy, opens and prorogues parliament." He also assents to all bills in her Majesty's name, and may at any time dissolve parliament, a prerogative of the Crown exercised with great caution under the advice of the privy council. In the times before the concession of responsible government, when contests between the executive and the assemblies were chronic, the governors dulled the edge of this important instrument by its too

1 B.N.A. Act, 1867, s. 17.

2 See chap. vi. Bourinot's Parliamentary Practice and Procedure.

8 Chapter on bills, Ibid.

* Governor-General's letters-patent, 1878, s. 5; B. N. A. Act, 1867, s. 50.

frequent use. Under the present system of constitutional government, such a condition of things cannot possibly occur. The responsibility of deciding whether in any particular case a dissolution should be granted, must, under our constitution, "rest absolutely with the representative of the sovereign." In coming to a conclusion, he is guided by considerations of public interest, which will enable him always to judge of the value of the advice given him by his constitutional advisers.3 Occasions, however, can very rarely arise when he should feel himself bound, for powerful public or constitutional reasons, to refuse the advice of his council; but there can be no doubt that it is the right and duty of the Crown, under any circumstances, to control the

1 From 1808 to 1810, the Quebec assembly was dissolved no less than three times by Sir James Craig. See his remarkable speech on one occasion, in which he soundly rated the assembly before dissolving it. Christie I., 283.

2 Sir T. E. May, New South Wales Leg. Ass. V. and P., 187778, vol. i., p. 451 ; Todd, Parl. Gov. in the Colonies, 561.

"The responsibility, which is a grave one, of deciding whether in any particular case it is right and expedient, having regard to the claims of the respective parties in parliament, and to the general interests of the colony, that a dissolution should be granted, must, under the constitution, rest with the governor. In discharging this responsibility, he will, of course, pay the greatest attention to any representations that may be made to him by those who, at the time, are his constitutional advisers; but, if he should feel himself bound to take the responsibility of not following his ministers' recommendation, there can, I apprehend, be no doubt that both law and practice empower him to do so." Sir Michael HicksBeach, Sec. of S. for Colonies; New Zealand Parl. P., 1878; App. A. 2. p. 14; New Zealand Gazette, 1878. pp. 911-14.

exercise of one of the most valued prerogatives of the sovereign. The relations between the representative of the Crown and his advisers are now so thoroughly understood, that a constitutional difficulty can hardly arise which cannot be immediately solved. If the Crown should feel compelled at any time to resort to the extreme exercise of its undoubted prerogative right of refusing the advice of its constitutional advisory council of ministers, they must either submit or immediately resign and give place to others who will be prepared to accept the full responsibility of the sovereign's action, which must be based on the broadest grounds of the public welfare.1

In the constitution of the Senate adequate security has been given to each of the provinces for the protection of its peculiar local interests, "a protection which it was believed might not be found in a house where the representation was based upon numbers only."" Consequently, the dominion was divided into three sections, representing distinct interests,-Ontario, Quebec and the maritime provinces of Nova Scotia and New Brunswick-to each of which was given an equal representation of twenty-four members. Provision was also made for keeping the representation for the maritime provinces at the same number, after the entrance of Prince Edward Island.3 An exception however, was made in

1See mem. of Lieut.-Governor Robitaille, Oct. 30, 1879, in a Quebec constitutional crisis, in which he refused a dissolution to Mr. Joly, who thereupon resigned. Todd, 565. See also Ib. 573.

'Sir A. Campbell, Confed. Deb., p. 21. 3 See infra, p. 79.

the case of Newfoundland, "which has sectional claims and interests of its own, and will, therefore, have a separate representation in the Senate." Special regard has also been had to the peculiar situation of the province of Quebec, where the electoral divisions that existed previous to 1867 are maintained, and a senator must consequently have his real property qualification or be resident in the district for which he is appointed,—a provision that was not considered necessary for the other provinces.2

When Parliament met for the first time in 1867, the Senate consisted of 72 members, called senators-24 for Ontario, 24 for Quebec, and 24 for Nova Scotia and New Brunswick, these two maritime provinces being considered one division. Subsequently, the provinces of Manitoba and British Columbia were admitted into the confederation, and the number of senators has been increased to 78 in all-Manitoba having at present three members and

1 Sir J. A. Macdonald, Confed. Deb. 35.

4

2 Hon. G. Brown said in the debate on Confederation (p. 89): "Our Lower Canada friends felt that they had French Canadian and British interests to be protected, and they conceived that the existing system of electoral divisions would give protection to these separate interests." The principal object of this provision was to give a representation to the Englishspeaking population of Lower Canada, in the Eastern Townships especially, which have now two representatives in the Senate. 3 B. N. A. Act, 1867, ss. 21 and 22.

Under Dom Stat. 33 Vict. c. 3, s. 3, (Rev. Stat. of Can. c. 47,) Manitoba is to have two members until it shall have a population of 50,000, and then it shall have three; and four, when the population has reached 75,000 souls. The census of 1881 gave Manitoba a population of 65,954 and consequently another member was added immediately to the Senate.

British Columbia three.1 Prince Edward Island has also entered the union since 1867 and has a representation of four members, but as this province is comprised in the maritime division of the Senate its admission has not increased the number of senators in the aggregate.' Provision was made in 1887 for the addition of two senators to represent the North-West Territories. The senators, who are nominated by the Crown, must each be of the full age of 30 years, natural-born or naturalized subjects, resident in the province for which they are appointed, and must have real and personal property worth $4,000 over and above all debts and liabilities. In the case of Quebec a senator must have his real property qualification in the electoral division for which he is appointed, or be resident therein. Every senator must take the oath of allegiance and make a declaration of his property qualification before taking his seat.5

The Queen may, on the recommendation of the governor-general, direct that three or six members be added to the Senate, representing equally the three

1 Can. Com. J. (1871) 195. Dom. Stat. for 1872, Order in Council, lxxxviii.

2 British N. A. Act, 1867, s. 147. This section provides that after the admission of P. E. Island, “the representation of Nova Scotia and New Brunswick in the Senate shall, as vacancies occur, be reduced from twelve to ten members respectively, and the representation of each of those provinces shall not be increased at any time beyond ten, except under the provisions of this act for the appointment of three or six additional senators under the direction of the Queen."

50-51 Vict., c. 3.

B. N. A. Act, 1867, s. 23. See app. to this work. 5 Ib., s. 128.