172 ROYAL SOCIETY OF CAÎs^ADA 



clearly an illegal and unconstitutional act. in view of the fact that the 

 British Xorth America xVct gives power over the constitution to the 

 legislative authority' alone. 



(T) That by the British North America Act of 1S6T the legislature 

 of Xova Scotia — I.e.. its three branches conjointly — can alone l)y statute 

 abolish the legislative council as a branch of this legislative authority, 

 and tlie Crown in the imperial parliament could not legislate in this 

 direction except 1)V a repeal of the clause in the union act of 1867, giving 

 the provincial legislature the power to amend the provincial constitution 

 except as respects the office of Heutenant-governor. In 1870 the council 

 rejected a measure passed by. the assembly for the abolition of the upper 

 house, and the assembly subsequentl}^ passed an address to the Queen, 

 ])raying that the impei"ial parliament might pass an act empowei'ing the 

 lieuteiKint-governor to increase the number of legislative councillors so 

 that the measure in question might be passed. The secretary of state for 

 the colonies, in refusing the praj^er of the address, called special attention 

 to the fact that under sections 88 and 92 of the British North America 

 Act of 1867 " the power of amending the constitution of the province has 

 been vested in the provincial legislature, and 'the cii-cumstances,' as 

 placed before him did not leatl him to conclude that 'an alteration of the 

 constitution has been proved to be necessary.' " ' Undoubtedly the Crown 

 in council and CroM'n in parliament have, b}' the terms of the British 

 North America Act, delegated all powers they had previous to 1867 to 

 the legislature of Nova Scotia with respect to the amendment of the 

 constitution. The Crown now possesses onl}' such rights as it possessed 

 previous to the passage of the British North America Act, but these are 

 subject to amendment with respect to the tenure of office of legislative 

 councillor, and the continuance of the council as a branch of the legis- 

 lature. The parliament of Great Britain can now only intervene under 

 conditions of provincial incapacity to discharge its legislative functions 

 under the British North America Act, and the circumstances would have 

 to be veiy exceptional and extraordinar}^ that would entitle the provincial 

 legislature to imperil intervention in a matter exclusively placed under 

 its legislative jurisdiction as a matter immediatelj' connected with the 

 internal affairs of a self-governing province. 



1 need only .say in conclusion, it will be seen by my readers, that in 

 treating this grave constitutional question, I have taken into consideration 

 not simply its purely legal aspect, but also necessarily all those principles, 

 maxims and usages which enter into the working of the constitutional 

 system of England and all her self-governing dependencies, which i)lay 



' ."-^ce also a later despatch of the Marquis of Ripon, .3rd December, 1894, in which 

 he states that Her Majesty's government "con.sider that as the province has the 

 power to alter its constitution, if it sees fit to do so, a re-sort to imperial legislation 

 would be ine.xpedient except in circumstances of urgent necessity " 



