This account was extracted from the Scottish
Review of 1895 and can be downloaded as a pdf
file here. Below is a rough
ocr'ing of the text.
THE
Colonial Conference that was held at Ottawa in the Dominion of Canada,
during the summer of 1894, gives us the best possible evidence that
colonial statesmanship at the present time has a decided tendency, not
towards isolation from the parent State and the establishment of
independent nations, but rather towards placing the relations between
Great Britain and her colonial possessions on a basis of community of
interest. It is also quite certain that so important an assemblage of
representatives of the scattered colonies of the Empire must more or
less stimulate a deeper interest in the affairs of each other. It was
for many reasons a happy idea that this second Colonial Conference—the
first having been held in London seven years before—should have met at
the political capital of the Canadian Dominion, which occupies a
pre-eminent position among the colonial possessions on account of having
been the first to carry out successfully a plan of colonial federation.
The fact that the Parliament of the Federation was sitting at the time
of the conference was a fortunate circumstance from which no doubt the
Australasian and South African delegates derived not a little practical
benefit. A Federal Parliament, composed of two Houses, in which seven
provinces and a vast territory, extending over nearly three million and
a quarter of square miles, were represented by upwards of three hundred
members, was of itself an object lesson for colonies which still remain
politically isolated from each other, and in a very little better
position than that occupied by the Canadian provinces thirty years ago,
when the Canadians recognised the necessity of close union for
commercial and governmental purposes. It is true the federal idea has
made some advance in Australasia. A Federal Council has been in
existence for a few years for the purpose of enabling the Australian
colonies to confer together on various questions of general import ; but
the experience of the eight years that have passed since the first
meeting of this Council has not been satisfactory in view of the want of
co-operation of all the Australian dependencies, and of the very limited
scope of its powers. The larger project of a federation, including the
whole of the island-continent as well as New Zealand, was fully
discussed three years aero in a convention of delegates from all the
colonies of Australasia, and a Bill was drafted for the formation of a '
Commonwealth of Australia;' but the measure has not yet been discussed
and adopted by the legislatures of the countries interested, although
there is no doubt that the scheme is gaining ground among the people,
and no great length of time will elapse before we shall see its
realization. In South Africa, which has been well described as 'a
congeries of British provinces in different stages of dependence,
intermixed with protected territories and independent states,' the
federal idea has necessarily taken no practical form, and is not likely
to do so for many years to come, though something has been gained by the
establishment of a customs union between some of the political divisions
of a great country with enormous possibilities before it.
No
doubt the Australasian and other delegates who visited Canada took away
with them some well formed impressions of the value of federal union
that will have some effect sooner or later upon the legislation of their
respective countries. Travelling, as many of them did, over the
Dominion, from the new and flourishing city of Vancouver on the Pacific
coast to the ancient capital of Quebec on the St. Lawrence, and even to
the old sea-port of Halifax on the Atlantic shores of the maritime
provinces, they could not fail to be deeply interested by the great
wealth of natural resources and the elements of national strength which
they saw in the rich mineral districts of British Columbia, in the
fertile prairies of the North-West, in the cities, towns and
agricultural settlements of the premier province of Ontario, in the
enterprising and handsome city of Montreal, which illustrates the
industrial and commercial enterprise of Canada above all other important
centres of population, in the abundant fisheries and mines of the
maritime provinces, and in the large facilities that are everywhere
given for education, from the common school to the university. But the
most instructive fact of Canadian development, in the opinion of
statesmen, would be undoubtedly the successful accomplishment of a
federal union throughout a vast territory, reaching from ocean to ocean,
embracing nearly one-half the Continent of America, inhabited by peoples
speaking the languages and professing the religions of England and
France, divided by nature into divisions where diverse interests had
been created during the century that elapsed between the formation of
their separate provincial governments and the establishment of
confederation, which has brought them out of their political isolation
and given a community of interest to the whole of British North America,
except Newfoundland, which has stood selfishly aloof, and is now
suffering under conditions of financial and commercial adversity and
political embarrassment which could never have occurred had it years ago
formed part of the Canadian Federation. Australasian statesmen, who
desire to see the federal union of their respective colonies consummated
before long, might well reflect that to them the task is much easier of
accomplishment than has been the case with Canada, since Australia has
not to encounter those national and sectional difficulties which from
the outset have always perplexed and hampered Canadian public men.
But
it is not the intention of the writer to dwell on this important
assemblage of Colonial representatives. His object is to show in this
Article some of the sources of
the strength of
the Canadian federal constitution as well as those elements of weakness
which are inherent in every federal union, however carefully devised.
Such a review should have some interest not. only for Australasians who
are halting in the way of federation, especially as it will include a
criticism of some features of the constitution of the proposed
'Commonwealth,' but also for Englishmen anxious to study the evidences
of colonial development throughout the Empire.
Briefly stated, the strength of the constitutional system of the
Canadian Federation depends largely on the following actual conditions :
A
permanent and non-elective Executive in the person of the reigning
Sovereign of Great Britain who is represented bv a Governor-General,
appointed for five or six years by the Queen in Council to preside over
the administration of Canadian affairs, and consequently elevated above
all popular and provincial influences that might tend to make him less
respected and useful in his high position.
The
existence of responsible or parliamentary government after the British
model.
The
careful enumeration of the respective powers of the federal and
provincial governments, with the residuum of power expressly placed in
the central pr general government.
The
placing of the appointment of all judges, federal and provincial, in the
Dominion Government, and their removal only on the address of the two
Houses of the Dominion Parliament, which address can only be passed
after full inquiry by a committee into any charges formally laid against
a judge.
The
reference to the courts of all cases of constitutional conflict or doubt
between the Dominion and the Provinces that may arise under the British
North America Act of 1867.
These
are the fundamental principles on which the security and unity of the
federal union of Canada rest; and we shall now proceed to show briefly
the reasons for this emphatic opinion.
Canadians have never raised a claim, as some of the Australian colonists
have done, that they should be always consulted in the choice by the
Sovereign of so important a public functionary as the Governor-General
of the dependency. Nor have the Canadians ever demanded the privilege of
electing from her own statesmen their Governor-General—a change that was
actually pressed by some members of the Australian Convention in 1891.
The elective principle has never been applied in the constitutional
practice of Canada to administrative, executive, or judicial offices,
despite her close neighbourhood to the United States, but has been
confined, in accordance with the English system which obtains throughout
the Empire, to representatives in parliament or in the municipal
councils of the country. Consequently Canadians have been spared the
excitement and expense that have followed the adoption of the elective
principle in the United States, where the President of the nation, and
the Governors of the forty-four States, are elected for short terms of
office—the former for four, and the latter from one to four years.
Removed from all political influences, since lie does not owe his
appointment to Canadian party, exercising his executive powers under the
advice of a constitutional ministry, who represent the majority in the
legislature, representing what Bagehot called ' the dignified part of
the constitution,' the Governor-General is able to evoke the respect and
confidence of all classes of the people.
The
constitution of Canada, which is known as the British North America Act
of 1867, has only enlarged the area of the political sovereignty of the
provinces, and given greater scope to their political energy, stimulated
for years previously by the influence of responsible government. The
federal constitution has left the provinces in the possession of the
essential features of that local government which they had fairly won
from the parent state since Acadia and Canada were wrested from France,
and representative institutions were formally established throughout
British North America. In every province there is a Lieutenant-Governor
appointed by the Dominion Government, who in this respect occupies that
relation to the provinces which was formerly held by the Imperial
authorities. This officer is advised by an Executive Council chosen, as
for forty years previously, from the majority of the House of Assembly,
and only holding office while they retain the confidence of the people's
representatives. In the majority of the provinces there is only one
House—the elected Assembly. The legislative councils that existed before
1867 have been abolished in all the legislatures except those of Quebec
and Nova Scotia, and in the latter the example of the majority will soon
be followed. It is questionable, however, whether it would not have been
wiser, in view of
the too hasty legislation of such purely democratic bodies as the Lower
Houses are becoming under the influence of an extended franchise—manhood
franchise existing even in the great English province of Ontario—to have
continued the English bicameral system, which even the republican
neighbours of Canada have insisted on in every stage of their
constitutional development as necessary to the legislative machinery of
the nation and of every state of the Union. It would have been much
better to have created an Upper House, which would be partly elected by
the people, and partly appointed by the Crown, which would be fairly
representative of the wealth, industry and culture of the country, the
last being insured by university representation. Such a House would, in
the opinion of those who have watched the course and tendency of
legislation since the abolition of these upper chambers, act more or
less as legislative breakwaters against unsound legislation and
chimerical schemes. As it was, however, these second chambers had lost
ground in the public estimation through their very inherent weakness,
representing, as they did too often, merely the favours of government
and the demands of party, and hardly a word of dissent was heard against
their abolition. No doubt economical considerations also largely
prevailed when it was a question of doing away with these chambers. No
doubt, too, when these bodies disappeared from the political
constitutions of the provinces, importance was given to the suggestion
that the veto given by the federal law to the Dominion Government over
the legislation of the provinces did away to a large extent with the
necessity for a legislative council, for its
raison d'etre, if we may so express it. But,
in the practical working of the federal union, the vehement and
persistent assertion of 'provincial rights,' and the general trend of
the decisions of the courts to whom questions of jurisdiction have been
referred, have tended rather to give a weight and power to the
provincial communities that was not contemplated by the leading
architects of the federal framework; certainly not by the late Sir John
Macdonald, who believed in a strong central government dominating the
legislation, and even the administration of the provinces whenever
necessary for reasons of urgent Dominion policy. But the powers granted
in express terms or by necessary implication to the provincial
authorities, take so wide a range, and the several provincial
governments, from the inception of the union, have been so assertive of
what they consider their constitutional rights, that it has not been
possible to minimise their position in the federation. The veto of the
Dominion is now rarely exercised ; in fact, only in cases where an Act
is clearly unconstitutional on its face, and any attempt to interfere
with provincial legislation on other ground than its unconstitutionality
or illegality, would be strenuously resisted by a province. In view then
of the position of the veto a subject to which we will again refer, it
is to be regretted that there is not still in each of the provinces an
influential Upper House, able from the nature of its constitution, and
the character and ability of its
personnel, to initiate legislation and
exercise useful control over the acts of a Lower House now perfectly
untrammelled, except by the Courts when its legislation comes before
them in due course of law. The consequences of the present system must
soon show themselves one way or the other. We admit that the fears we
entertain may be proved to have no foundation as the union works itself
out. On the face of it, however, there is a latent peril in a single
chamber, elected under most democratic conditions, liable to
fluctuations with every demostration of the popular will, and left
without that opportunity for calm, deliberate second thought that a
second chamber of high character would give them at critical times.
In
the constitution of the Dominion or Central Government, however, the
British North America Act has adhered to the lines of the British
system, since it provides for an advisory Council of the
Governor-General, chosen from those members of the Privy Council of
Canada who have the confidence of the House of Commons ; for a Senate of
about eighty members, appointed by the Crown from the different
provinces ; for a House of Commons of two hundred and fifteen
1 members, elected bv the people of the
different sections on a basis of population, and on the condition that
the number of members given to Quebec by the Constitutional Act shall
not be disturbed. The growth of democratic principles is seen in the
very liberal Dominion franchise, on the very threshold of manhood
suffrage, with limitations of citizenship and residence. The members of
the Senate must have a small qualification of personal and real
property, and are appointed for life. The remarkably long tenure of
power enjoyed by the Conservative party—twenty-three years, since
1867—has enabled it to fill the Upper House with a very large numerical
majority of its own friends; and this fact, taken in connection with
certain elements of weakness inherent in a chamber which has none of the
ancient privileges or prestige of a House of Lords, long associated with
the names of great statesmen and the memorable events of English
history, has in the course of years created an agitation among the
Liberal party for radical changes in its constitution which will bring
it more in harmony with the people, give it a more representative
character, and at the same time increase its usefulness. This agitation
has even proceeded so far as to demand the abolition of the House, but
it is questionable if this radical movement is sustained to any extent
by the intelligence of the country. On the contrary, public opinion, so
far as it has manifested itself, favours the continuation of a second
chamber on conditions of larger usefulness in preference to giving
complete freedom to the democratic tendencies of an elective
body—tendencies, not so apparent at present, but likely to show
themselves with the influx of a larger foreign population and the
influences of universal suffrage. The Senate, as at present composed,
contains many men of ability, and cannot be said to display a spirit of
faction despite its preponderance of one party, while for two years back
its leaders have seen the necessity of initiating in this chamber a
large number of important public measures. The movement for a
remodelling of the Senate, however, has not yet taken any definite
shape, and is not likely to do so as long as the present Conservative
Government remains in power, although the writer is one of those who
believe that it ought soon to be strengthened by giving it a more
representative character 011 some such plan as has been suggested in the
case of legislative councils in the provinces. Of course no
constitutional changes can be made in the body except on an address of
the two Houses to the Crown in Parliament.
With
experiences of the Canadian Senate and their own legislative councils
before them, the framers of the proposed Australian federation have
followed the example of the United States and provided for a Senate
whose members are elected for six years by the legislatures of the
colonies, or parliaments of the Australian States, as they are more
ambitiously called in the Bill. The constitutional provisions that
govern the House of Lords and Canadian Senate, with respect to the
initiation or amendment of taxation, and annual Appropriation Bills are
fully recognised in the Australian draft. Some enlargement of power is,
however, given to the proposed Australian Senate in the case of Money
Bills, and it is permitted at any stage to return any proposed law,
which they may not amend, with a message requesting the omission or
amendment of any items or provisions therein. The practice appears to
have been followed for some years in South Australia, but in introducing
it into their proposed constitution the Convention was very much
influenced by a hope that it would give the Upper House larger power and
give it some resemblance to the Senate of the United States. But they
have forgotten that that great body has long wielded the three elements
of authority—executive, legislative and judicial. It goes into executive
session on treaties and appointments made by the President, acts as a
court of impeachment for the President and high functionaries, and
exercises the supreme legislative power of directly amending Money
Bills. Until the popular assemblies in Australia are able or willing to
give such sovereign powers to an Upper House, it is idle to talk of
comparisons with the Senate of the United States.
No
doubt the members of the Australian Convention hope that a Senate with a
longer tenure of power and an indirect method of popular election, will
be to a considerable degree more conservative in its legislation than a
more democratic Lower Hou&e elected on a short term of three years—one
more than the House of Representatives of Congress, and two less than
the House of Commons of Canada. Of course some of the Australian
colonies have had experience of an elective Upper House, and it is
somewhat curious that while they are not prepared to adopt the old
system in its entirety in their proposed federal union, the Canadians
have returned to an appointed House as preferable to the one they had
before 1867,— even so thorough a Radical as the late George Brown, then
leader of the Liberal party, earnestly urging the change in the Quebec
Convention. When we consider the character of the agitation against
Upper Houses, we see that, in the nature of things, Democracy is ever
striving to remove what it considers barriers in the way of its power
and will. An Upper House, under modern political conditions, is likely
to be unpopular with the radical and socialistic elements of society
unless it is elective. As the Australians are obviously admirers of the
American federal constitution, from which thev copy the constitution of
their Upper Chamber, we direct their attention to the fact that an
agitation has already commenced in the United States, and indeed has
made much headway, to change the present indirect method of electing
Senators, and to give their election directly to the people. It says
something, however, for the Conservative and English instincts of the
Australians that they have not yielded to the full demands of democracy,
but have recognised the necessity of an Upper House in any safe system
of her Parliamentary Government.
We
see. accordingly, in the central and provincial constitutions of Canada
the leading principles
of the British system— a permanent executive, responsible
ministers, and a parliament or legislature,
following directly the British model of two Houses in the central
government, but varying from all other countries of English institutions
in the majority of the provinces. In the enumeration of the legislative
powers given to the Dominion and provincial legislatures, an effort was
made to avoid the conflicts of jurisdiction that so frequently arose
between the national and State governments of the Federal Republic. In
the first place, we have a recapitulation of those general or national
powers that properly belong to a central authority. On the other hand,
the provinces have retained control over municipal institutions,
property, and civil rights, and generally < all matters of a merely
local or private nature in the province.' It will be remembered that the
national or general Government of the United States is alone one of
enumerated powers, whilst the several States have expressly reserved to
them the residuum of power not in express terms or by necessary
implication taken away from them. In their anxiety to avoid the
sectional and State difficulties that arose from these very general
provisions, and to strengthen by constitutional enactment the central
Government of the Dominion, the framers of the British North America Act
placed the residuary power in the Parliament of Canada.
But
despite the earnest efforts made by the Canadians to prevent troublesome
questions of jurisdiction too constantly arising between the general and
provincial Governments, the Courts have been steadily occupied for a
quarter of a century in adjusting the numerous constitutional disputes
that have arisen in due course of law under the Union Act. Discussions
are frequently arising in the legislative bodies on the varied
interpretation that can be given to the constitution on these very
points of constitutional procedure and jurisdiction which the framers of
the Federal Union thought they had enumerated with great care. But it is
in this very reference to the Courts that the strength of a written
instrument of a Federal Government lies. In Canada, as in all other
countries inheriting English law, there is that great respect for the
judiciary which enables the people to accept its decisions, when they
would look with suspicion on the Acts of purely political bodies.
Cases
involving constitutional questions may be tried 111 any of the Courts of
the provinces, with the right of appeal to the federal Supreme Court,
and finally, under certain limitations, to the British Privy Council.
The judgments of the Judicial Committee have been always received with
the respect due to the learning of so high a Court, and on the whole
have given satisfaction, though there have been occasions when the lay,
and even the legal, mind has been a little perplexed by somewhat
contradictory decisions, apparently arising from the difficulty of some
of the judges to comprehend what are largely provincial issues. The
tendency of the judgments of the Courts has been decidedly towards
strengthening the provincial entities, and minimising to a certain
extent the powers of the central authorities. For instance, the Judicial
Committee has gone so far as to lay it down most emphatically-—
That
when the Imperial Parliament gave the provincial legislatures exclusive
authority to make laws 011 certain subjects enumerated in the Act of
Union, it conferred powers not in any sense to be exercised by
delegation from, or as agents of, the Imperial Parliament, but authority
as plenary and as ample within the limits prescribed by the section (02)
as the Imperial Parliament, in the plenitude of its power, possesses or
could bestow.'
It is
a question whether the Judicial Committee, however ably constituted,
would not find its usefulness increased by the membership of a great
colonial lawyer, who would bring to his duties not only legal acumen and
judicial fairness, but a comprehension of the nature and methods of
government which one does not expect from a European judge, who acts
within the narrow path traced for him by ordinary statutes.2
As long as the imperial court is composed of men of the highest
learning, and it is very rarely this is not the case, it is a positive
advantage to the people of Canada, and of all the other dependencies of
the Crown, to have its independent decision on constitutional questions
of moment. In the Australian Convention, doubts were expressed as to the
necessity of this reference when the new federation will have a supreme
court of its own, but it would be :t serious mistake to ask the Crown to
give up entirely the exercise of a prerogative so clearly in the
interests of the Empire at large. To quote the apt words of Sir Henry
Nixon:—
'At
present it is one of the noblest characteristics of our empire that over
the whole of its vast area, every subject, whether he be black oil
white, has a right of appeal to his Sovereign. That is a grand link for
the whole of the British Empire. But it is more than that. It is not, as
mi j be considered, a mere question of sentiment, although I may say
that sentiment goes far to makeup the life of nations. It is not merely
that ; but the
unity of final decision preserves a unity of law over the whole Empire.'
The
words we have given in italics are unanswerable, and it is unfortunate,
we think, such arguments did not prevail in the convention to the
fullest extent. That body, in this as in other matters, appears to have
been largely influenced by a desire to make Australia independent of
England as far as practicable, and the majority were only at the last
persuaded to adopt a clause providing for a modified reference to the
Queen in Council of cases 'in which the public interests of the
commonwealth or of any state, or any other part of the Queen's dominions
are concerned.' We hope, however, before the constitution is finally
adopted, all the limitations on the exercise of this royal prerogative
in the dependency will be removed.
When
we consider the influence of the courts on the Canadian federal union we
can see the wisdom of the provision which places the appointment,
payment and removal of the federal as well as provincial judges in the
hands of the Dominion Government. It may be said, indeed, that by their
appointment and permanency of tenure, all the judges of Canada are
practically federal, though the organisation of the provincial courts
rests with the provincial governments. The consequence is the provincial
judges are removed from all the influences that might weaken them were
they mere provincial appointments. In the United States the constitution
provides for federal judges, who are appointed by the President with the
consent of the Senate. At the present time out of the forty-four states
thirty elect the judges and the officers of the courts by a popular
vote. The federal judiciary has always held a far higher position in the
estimation of the intelligence of the country than the elective
judiciary of the States since the mode of appointment, permanency of
tenure, and larger scope of duties have attracted the best legal talent.
It is admitted by American thinkers and publicists, who are not
politicians but can speak their honest opinion, that the system has been
most unfavourable to the selection of men of the best ability, and the
exhibition of courage and fidelity in the discharge of their important
functions. Judicial decisions have been wanting in consistency, and
constantly fluctuating and feeble. Men of inferior reputation have been
able, by means of political intrigue and most unprofessional conduct, to
obtain seats on the bench. Confidence in the impartiality of judges is
sensibly lessened when it is the party machine that elects, and
professional character and learning count for comparatively little. If
the interpretation of the constitution had depended exclusively on this
.state judiciary, the results would have been probably most unfavourable
to the stability of the Union itself, but, happily for its best
interests, the men who framed the fundamental law of the republic wisely
provided for federal judges, removed from the corrupt and degrading
influences of election contests, and made them the chief legal exponents
of the written instrument of government.
It is
therefore a happy circumstance for Canada that all its judges are
entirely independent of political influences, as well as of the
fluctuating conditions of a narrow range of provincialism. As exponents
of the constitution the Dominion judiciary has greater elements of
strength than the judiciary of the United States, since it is federal
from a most important point of view, while that of the latter country is
divided between nation and states. In another respect the Canadian
government has made a step in advance of their neighbours, with the view
of obtaining a reasoned opinion from the higher courts in cases of legal
doubt and controversy between the central and provincial governments,
and between the provinces themselves. The Governor in Council may refer
to the supreme court for hearing and argument, important questions of
law or fact touching provincial legislation or any other constitutional
matter, and the opinion of the court, although advisory only, is, for
all purposes of appeal to Her Majesty in Council, treated as a final
judgment between the parties. No such provision exists in the case of
the federal judiciary at Washington, which can be called upon only to
decide controversies brought before it in a legal form, and is therefore
bound to abstain from an extrajudicial opinion upon points of law, even
though solemnly requested by the executive. A similar provision exists
in Ontario for a reference to the provincial courts, and the question
may be fully argued, a provision that does not exist in the few states
of the federal republic, where the legislative department has been
empowered to call upon the judges for their opinion upon the
constitutional validity of a proposed law.
We
have dwelt at some length on these carefully devised methods of
obtaining a judicial and reasoned opinion on cases of constitutional
controversy with the view of showing that they are recognised as the
best means of arriving at a satisfactory solution of legal difficulties
that cannot be settled on the political arena. The necessity of making
the courts in every way possible the arbiters in such cases is clearly
shown by the history of the veto given by the British North American Act
to the Government of the Dominion over the legislation of the provinces.
From its history so far, it is clear that the exercise of this power is
viewed with great jealousy and may at any moment lead to serious
complications by creating
antagonisms of much gravity between the central and provisional
governments. It is now, however, becoming a convention of the
constitution that the Dominion authorities should not interfere with any
provincial legislation that does not infringe the fundamental law; that
the only possible excuse for such interference would be the case of
legislation clearly illegal or unconstitutional, on the face of it,
unjust to any class or section of the people, or dangerous to the
security and integrity of the Dominion or of the Empire. It is now
deemed the wisest policy to leave as far as possible all questions of
constitutional controversy to the action of the courts by the methods
that the law, as we have already shown, provide to meet just such
emergencies. In ordinary cases, however, where there is an undoubted
conflict with powers belonging to the central government, where the
province has stepped beyond its constitutional authority, the veto
continues to be exercised with much convenience to all the parties
interested. It must be admitted that on the whole the authorities of the
Dominion have exercised this sovereign power with discretion, but it
must be admitted that it may be at any time a dangerous weapon in the
hands of an unscrupulous and reckless central administration when in
direct antagonism to a provincial government, and it can hardly be
considered one of the elements of strength, but rather a latent source
of weakness, in the federal structure.
No
doubt the experience of the Canadians in the exercise of the veto power,
has convinced the promoters of the proposed federal union of Australia
that it would be unwise to incorporate it in their draft constitution,
which simply provides that 'when a law of a
state is inconsistent with a law of the commonwealth, the latter shall
prevail, and the former shall, to the extent of the inconsistency, be
invalid.' The political government of the federation is given no special
authority to act under this clause, and declare any 'state' legislation
unconstitutional by a proclamation of the Governor General as is done in
Canada, but the provision must be simply a direction to the courts,
which also, in the proposed 1 commonwealth,' are to have all
the legitimate authority that is essential to the satisfactory operation
of a federal system.
Some
of the members oMie Australian Convention, however, have seen a means of
controlling 'state' legislation in the following provision.
'5.
All references or communications, required by the constitution of any
state or otherwise to be made by the Governor of the state to the Queen,
shall be made through the Governor General, as Her Majesty's
representative in the commonwealth, and the Queen's pleasure shall be
made known through him.'
This
section was severely criticised by the advocates of ' state rights' in
the Convention, but it is certainly necessary unless we are to see the
strange spectacle presented at all times, of the general and state
governments communicating separately with the imperial authorities, who
would soon become thoroughly perplexed, while the federation would
constantly find itself plunged into difficulties. By means of one
channel of intercourse, however, some order will be maintained in the
relations between Britain and the proposed federation. It is quite true
that the clause does not say, as it was urged by more than one prominent
member of the Convention, 1 that the executive authority of
the commonwealth shall have the right to veto any Bill passed by the
different states, or even to recommend Her Majesty to disallow such
Bill;' but there is nothing to prevent the Governor-General, as an
Imperial officer, from making such comments in his despatches to the
Secretary of State for the Colonies as he may deem proper and necessary
; indeed, it is his constitutional duty to do so, when he transmits the
Acts of the respective ' states ' to the Queen in Council for approval
or disapproval—also such Acts continuing to he so referred as at
present. Of course the Imperial Government is not likely to interfere
with strictly local legislation any more than they do now ; all they
ever do is to disallow colonial legislation that conflicts with imperial
acts or imperial obligations. It is quite clear that this provision is
for the advantage of the Empire at large, and necessary for the unity
and harmony of the federation. Some means must exist for the instruction
of the imperial authorities as to the relations
between the Central and
State Governments, and as to the character and bearing of state
legislation; and the Governor-General is bound to avail himself of the
opportunity the clause in question gives him of promoting the best
interests of the Australian union.
When
we come to consider the subject of Education—one of the matters placed
under the direct control of the provincial Governments—we see again the
difficulties that always arise in connection with questions involving
religious and sectional considerations. In the formation of the
constitution it was necessary to give guarantees to the Roman Catholics
or minority of Ontario, and to the Protestants or minority of Quebec,
that the sectarian or separate schools, in existence at the union,
should not be disturbed by any subsequent legislation of their
respective provinces. It is consequently enacted in the fundamental law
that, while the legislature of a province may exclusively make laws on
the subject of Education, nothing therein shall prejudicially affect any
denominational schools in existence before July, 18G7. An appeal lies to
the Governor-General in Council from any act of the provincial authority
affecting any local right or privilege that the Protestant or Roman
Catholic minority enjoyed at the time of the union. In case the
provincial authorities refuse to act for the due protection of the
rights of minorities, in accordance with the constitution, then the
Parliament of Canada may provide in this behalf.
As a
result of a recent decision of the Judicial Committee of the Privy
Council the Government of Manitoba have been called upon by the Dominion
Executive to repeal certain legislation which the former body considered
an infringement of educational privileges enjoyed before 1890 by the
Roman Catholic minority of the province; and the attention of the people
of Canada is now turned towards its legislature to see whether they will
obey the ' remedial order,' or whether it will be necessary to have
recourse to the supreme power of the Canadian parliament in the matter.
The question is one of much gravity, inasmuch as it is admitted—the
Judicial Committee have so decided—that the Acts of Manitoba on the
subject of education are perfectly constitutional. It is a question to
be determined only in a spirit of compromise and conciliation. In all
such matters involving constitutional issues, the safest policy no doubt
is to obey the decisions of the courts, so far as they are consonant
with provincial rights and the K interests of the Dominion. All the
questions show some of the difficulties that are likely to impede the
satisfactory operation of the Canadian federal system, and the projected
Australian federation is fortunate in not having similar intensified
differences of race and religion to contend with. Its constitution
leaves all educational and purely local matters to the exclusive
jurisdiction of the ' States,' and does not make provision for the
exercise of that delicate power of remedial legislation which is given
to the Canadian parliament to meet conditions of injustice to creed or
nationality.
Throughout the structuie of the Canadian federation we see the influence
of French Canada. The whole tendency of imperial as well as colonial
legislation for over a hundred years has been to strengthen this
separate national entity, and give it every possible guarantee for the
preservation of its own laws and religion. The first step in this
direction was the Quebec Act of 1774, which relieved the Roman Catholics
of Canada from the political disabilities under which they had suffered
since the Conquest. Seventeen years later what is known as the imperial
'Constitutional Act' of 1791 created two provinces, Upper Canada
(Ontario) and Lower Canada (Quebec), with the avowed object of
separating the two races into two distinct territorial divisions. From
1792 until 1840 there was a ' war of races' in French Canada, and after
the revolt of 1837-8 the two provinces were re-united, with the avowed
object of weakening French Canadian influence. As a matter of fact,
however, the political history of Canada, from 1841 to 1867. shows the
strength of a largely and closely welded French Canadian people, jealous
of their institutions and their nationality. Eventually government came
to a deadlock in consequence of the difficulties between political
parties striving for the supremacy. These difficulties, arising from the
antagonism of nationalities, led to the federation of all the provinces,
and to the giving of additional guarantees for the protection of French
Canadian interests. In the Senate, Quebec was a representation equal to
that of English Ontario, with nearly double the population, with the
condition that each of its twenty-four members shall be chosen from each
of the divisions of the province—a condition intended to insure French
Canadian representation to the fullest extent possible. In the
adjustment of representation in the House of Commons, from time to time,
the proportion of sixty-five members, given by the Union Act to Quebec,
cannot he disturbed. The jurisdiction given to the provinces over civil
rights and property, and the administration of justice except in
criminal matters, was chiefly the work of French Canada, whose people
have since 1774 accepted the criminal law of England, but have not been
willing to surrender their civil code, based on the
Coutume de Paris,
which they have derived from their French ancestors. Both the French and
English languages are used in the debates, records, and journals of the
parliament of the Dominion and the legislature of Quebec. It would be
difficult to conceive a constitution more clearly framed with the view
of protecting the special institutions of one race, and perpetuating its
separate existence in the Dominion. Of course the industrial energy of
the British people, and the necessity of speaking the language of the
British majority, has to a certain extent broken down the barriers that
language imposes between nationalities, and it is only in the isolated
and distant parishes of Quebec that we find persons who are ignorant of
English. The political consequences of the legislation of the past
century have been to cement the French Canadian nationality—to make it,
so to speak, nn
imperium in imperio, a supreme power at times
in the Dominion. It must be admitted that, on the whole, rational and
judicious counsels have prevailed among the cultured and ablest
statesmen of French Canada at critical times, when rash agitators have
attempted to stimulate sectional and racial animosities and passions for
purely political ends. The history of the two outbreaks of the
half-breeds in the North-west, and of the recent school legislation in
Manitoba, so far as it has gone, show
the deep interest taken by French Canadians in all matters affecting
their compatriots ai:cl co-religionists, and the necessity for caution
and conciliation in working out the federal union. The federal
constitution has been largely moulded in their interest, and the
security and happiness of the Canadian Dominion in the future must
greatly depend on their determination to adhere to the letter as well as
to the spirit of this important instrument. It is for French Canada,
above all other provinces, to maintain the principle of local autonomy
and the undoubted legislative rights of a province, whenever an
emergency arises in other sections.
When
we compare the British North America Act of Canada with the draft of the
Bill to constitute the federation of Australia, which was the result of
the convention of 1891, we must be impressed by the fact that the former
appears more influen-ed by the spirit of British ideas than the latter,
which has copied many of the features of the constitution of the United
States. In the preamble of the Canadian Act we find expressly stated. '
the desire of the Canadian provinces to be federally united with a
constitution similar in principle to that of the United Kingdom,' while,
on the other hand, we read in the draft of tiie Australian Bill onlv a
bald statement of an agreement 'to unite in one federal Commonwealth
under the Crown.' Although the word ' Commonwealth ' has a general
application to a body politic governed on popular principles, yet the
memory of the majority of persons will go back to a trying and
unfortunate period of British history. All of us will remember that
Professor Bryce, in his elaborate criticism of the
republican constitution of the United States,
could find no more expressive title for his work than the ' American
Commonwealth.' When we consider this fact in connection with the word '
State 'instead of 'Provinces,' of House of Representatives'3
instead of House of Commons,' of 'Executive Council' instead of 'Privy
Council,' we may well wonder why the Australians, all English by birth,
origin, and aspiration, should have departed from the precedents
established by Canada, only partly English, with the view of carving
ancient historic names on the very front of their political structure.
It would be perhaps quite in accord with the ambitious aspirations of
Australians were they to substitute ' United Australia ' for a word of
dubious and even republican significance. In leaving to the ' States'
the right of appointing or electing their 'Governors' — not
Lieutenant-Governors, as in Canada—we see also the desire to follow the
methods of the States of the American Republic; and we may be sure that,
when once the Commonwealth is in operation, it will not be long before
the heads of the executive authority will be chosen by popular vote, and
we shall see the commencement of an extension of the democratic elective
principle to all State, administrative, executive, and even judicial,
officers, now appointed by the Crown, under the advice of a ministry
responsible to Parliament for every appointment, and other act of
administrative and executive authority.
We
see the same American influence in the provision that 'when a law
(sic) passed by the Parliament'
(sic) is presented to the Governor-General
'for the Queen's assent,' he may 'return it to the Parliament
(sic) with amendments which he may desire to
have been made in such law'
(sic). One cannot understand the reasoning
which justifies the giving of such a power to the executive head ; it is
quite irreconcilable with the principles and practice of responsible
government. He must, in all cases affecting the government of the
colony, act under the advice of ministers. In this case, however, he is
to assume the position held by similar officers before there was a
Ministry responsible to him and the two Houses for all legislation. We
also humbly inquire how a Bill can become 'a law' before it has received
the assent of the Queen, through the Governor-General. When did
Parliament mean only the two Houses in any legal or constitutional
document? Such loose phraseology might do for common parlance, but not
for a proposed statute, where in a former clause Parliament is properly
said to 1 consist of Her Majesty, a Senate, and a house of
representatives.' We think that here, at least, the Australian draftsmen
of the Bill might advantageously have copied the correct language of the
American Republican Constitution, which never uses ' law ' in so
incorrect a sense, if they were not prepared to accept the British North
American Act as their model, though it was prepared under so high an
authority as Lord Thring.
We
see also an imitation of the constitution of the United States in the
Australian provisions, making the central Government alone one of
enumerated powers, and leaving the residuary power in the £
States.' The word 'parliament' is also generally applied to the
legislative bodies of the Federal and State Governments—another
illustration of the dominant influence of the colonies—hereafter '
States '— in the proposed constitution. Again, while the Bill provides
for a Supreme and other Federal Courts to be appointed and removed by
the authorities of the Commonwealth—and the influence of the American
example is seen in the very language setting forth the powers of these
judicial bodies—the 'State' Governments are to have full jurisdiction
over the ' State' Courts. The federal judges can be removed, as in
Canada, only by a successful impeachment in Parliament, and an address
of the two Houses to the Governor-General in Council, and as long as the
present constitution of the Australian colonies remains unchanged, the
'State' judges can be removed only by the action of the ' State
Parliaments.' The Canadian constitution in this respect appears to give
greater security for an independent and stable judiciary, since a
Government operating on a larger sphere of action is likely to make
better appointments than a smaller and less influential body within the
range of provincial jealousies, rivalries, and factions. Indeed, it is
not going too far to suppose that, with the progress of democratic
ideas—already rife in Australia—we may have repeated the experience of
the United States, and elective judges make their appearance in 'States'
at some time when a wave of democracy has swept away all dictates of
prudence, and given unbridled license to professional political managers
only anxious for the success of party.
As
respects any amendment of the constitution after its adoption, the
Australians have also practically copied the American constitutional
provision that, whenever two-thirds of the House of Congress, or of the
legislatures of the several States, shall deem amendment necessary, it
shall be submitted to a convention, and form part of the constitution
when ratified by the legislatures, or conventions of three-fourths of
the States, as Congress may determine at the time. The Australian Bill
permits an amendment to be proposed by an absolute majority of the two
Houses of the Parliament of the Commonwealth, and then submitted to
conventions of the several States, but it must be ratified by
conventions of a majority of States who represent a majority of the
people of the federation before it can be submitted to the
Governor-General for the Queen's assent. The Canadian constitution may
be amended in any particular, where power is not expressly given for
that purpose to the parliament or legislatures, by an address of the
Canadian Senate and Commons to the Queen—in other words, by the Imperial
Parliament that enacted the original act of union—and without any
reference whatever to the people voting at an election or assembled in a
convention. Of course it may be said that the reference to the imperial
authorities will not be much of a restraint on amendment inasmuch as it
is not likely that a Parliament, already overburdened by business, will
show any desire to interfere with the expression of the wishes of the
Canadian Houses on a matter immediately affecting the Canadians
themselves. So far there have been only three amendments made by the
Imperial Parliament to the British North America Act in twenty-seven
years, and these were simply necessary to clear up doubts as to the
powers of the Canadian Houses. This fact says much for the satisfactory
operation of the Canadian constitution as well as for the discretion of
Canadian statesmen. The Canadian constitution in this particular clearly
recognises the right of the supreme Parliament of the Empire to act as
the arbiter on occasions when independent, impartial action is necessary
; to discharge that duty in a legislative capacity which the Judicial
Committee of the Privy Council now performs as the supreme court of all
the dependencies of the Crown. The Australians propose to make
themselves entirely independent of the a.-tion of a great parliament
which might be useful in some crisis affecting deeply the integrity and
unity of Australia, and to give full scope only to the will of democracy
expressed in popular comentions.
It is quite possible that the system will work smoothly, and even
advantageously, though we should have preferred on the whole to see less
readiness on the part of British colonies to reproduce republican ideas
and methods of government.
It is
an interesting, and to Englishmen everywhere, an encouraging fact that
the Canadian people, despite their neighbourhood to a great and
prosperous federal commonwealth, should not, even in the most critical
and gloomy periods of their history, have shown any disposition to mould
their institutions directly on those of the United States and lay the
foundation for future political union. Previous to 1840, which was the
commencement of a new era in the political history of the provinces,
there was a time when discontent prevailed throughout the Canadas, but
never did any large body of the people threaten to sever the connection
with the parent state. The Act of Confederation was framed under the
direct influence of Sir John Macdonald and Sir George Cartier, and
although one was an English Canadian and the other a French Canadian,
neither yielded to the other in the desire to build up a Dominion on the
basis of British institutions in the closest possible connection with
the mother country. While the question of union was under consideration,
British Liberal statesmen and writers alone predicted that the new
federation, with its great extent of territory, its abundant resources,
and ambitious people, would eventually form a
new nation independent of England. Canadian
statesmen never spoke or wrote of separation, but regarded the
constitutional change in their political condition as giving them
greater weight and strength in the Empire. The influence of Britain on
the Canadian Dominion can be seen throughout its governmental machinery,
in the system of parliamentary government, in the constitution of the
Privy Council and the Houses of Parliament, in an independent judiciary,
in appointed officials of every class —in the provincial as well as
Dominion system—in a permanent and non-political civil service, and in
all elements of sound administration. During the twenty-seven years that
have passed since 1867. the attachment of Canada to her British
institutions has gained in .strength, and it is clear that those
predictions of Englishmen, to which we have referred, are completely
falsified so far, and the time is not at hand for the separation of
Canada from the Empire. On the contrary, the dominant sentiment is for
strengthening the ties that have in some respects become weak in
consequence of the enlargement of the political rights of the Dominion,
which has assumed the position of a semi-independent Power, since
Britain now only retains her imperial Sovereignty by declaring peace or
war with foreign nations, by appointing a Governor-General, by
controlling Colonial legislation through the Queen in Council and the
Queen in Parliament, but not so as to diminish the rights of
self-government conceded to the Dominion, and by requiring the making of
all treaties with foreign countries through her own Government, while
recognising the right of the dependency to be consulted and directly
represented on all occasions when its interests are immediately
affected. In no respect have the Canadians followed the example of the
United States and made their executive entirely separate from the
legislative authority. On the contrary, there is no institution which
works more admirably in the federation—in the general as well as
provincial governments—than the principle of making the ministry
responsible to the popular branch of the legislature, and in that way
keeping the executive and legislative departments in harmony with one
another, and preventing that conflict of authorities which is a
distinguishing feature of the very opposite system that prevails in the
Federal Republic. If we review the amendments made of late years in the
political constitution of the United States, and especially those
ratified quite recently in New York, we see in how many respects the
Canadian system of government is superior to that of the republic. Of
course in the methods of party government we can see in Canada at times
attempts to follow the example of the United States, and introduce the
party machine with its professional politicians and all those influences
that have degraded politics since the days of Jackson and Van Buren.
Happily, so far, the people of Canada have shown themselves fully
capable of removing those blots that show themselves from time to time
on the body politic. Justice has soon seized those men who have
betrayer! their trust in the administration of public affairs. Although
Canadians may. according to their political proclivities, find fault
with the methods of governments, and be carried away at times by
political passion beyond the bounds of reason, it is encouraging to find
that all are ready to admit the high character of the judiciary for
learning, integrity and incorruptibility. The records of Canada do not
present a single instance of the successful impeachment or removal of a
judge for improper conduct on the bench since the days of responsible
government, and the three or four petitions laid before Parliament since
18G7, asking for an investigation into vague
charges against some judges, have never required a judgment of the
Houses. Canadians built wisely when, in the formation of their
constitution, they followed the British plan, of having an intimate and
invaluable connection between the executive and legislative departments,
and of keeping the judiciary practically independent of the other
authorities of government. Not only the life and property of the people
but the satisfactory working of the whole system of federal government
jests more or less on the discretion and integrity of the judges.
Canadians are satisfied that the peace and security of the whole
Dominion do not depend more on the ability and patriotism of statesmen
in the legislative halls than on that principle of the constitution
which places the judiciary in an exalted position among all the other
authorities of government, and makes law as far as possible the arbiter
of their constitutional conflicts. All political systems are very
imperfect at the best, legislatures are constantly subject to currents
of popular prejudice and passion, statesmanship is too often weak and
fluctuating, incapable of appreciating the true tendency of events, and
too ready to yield to the force of present circumstances and to dictates
of expediency ; but law, as worked out on British principles in all the
dependencies of the Empire—as understood by Marshall, Story, and Kent,
and other great masters of constitutional and legal learning—gives the
best possible guarantee for the security of institutions in a country of
popular government.
J. G.
Bourinot.
1 In the next
Parliament the number will be on account of a recent readjustment of
representation based on the last census.
2 Professor Bryce in
The American Commonwealth, Vol. 1., (1st,
Edition). See also his remarks on the two literal constructions placed
at times on the B.N.A. Act by the Judicial Committee.
Ibid. P. 509.
3 The present popular
house of New Zealand is called a 'House of Representatives,' and this is
not strange when we recall the republican principles of Sir George Grey,
who is an earnest advocate of elected Governors-General, and other
republican practices. But this eccentric colonial statesman does not
appear to be responsible for the phraseology of the proposed
constitution. The debates of the convention, of which he was a member,
show that the majority desired to make their new constitution a copy, as
far as practicable, of that of the United States. |