Page images

tional life of this country is left free to develop in its natural way. Then I am convinced that that use of vague general language, and over-lapping descriptions in the sections which distribute legislative powers between the federal parliament and the provincial legislatures, which has sometimes been complained of, was resorted to with the well conceived intention of leaving these respective powers to adjust themselves more perfectly by degrees, and of allowing as free scope, as in the nature of the case was possible, for that process of organic growth of the national institutions, in harmony with the national needs and circumstances, which is one great virtue of the Constitution of the United Kingdom. To this we may attribute the fact that the provisions of the Federation Act relating to the distribution of legislative power have worked on the whole so satisfactorily; so that we hear no serious complaints from any quarter, and we get a popular newspaper like the Toronto World writing on the eve of last Dominion Day that we have a union of the provinces which is likely to prove perpetual.

Again the British North America Act gives both to the Dominion Parliament and to the provincial legislatures, not merely power to do certain things as in the case with Congress under the United States Constitution, but wide powers to make laws in relation to various broad subjectmatters of legislation committed to their respective jurisdictions; and we find, moreover, no such hampering and restricting of legislative action by provisions of a fundamental law as is found in the Constitutions of the United States, and of the various States of the Union. The plenary power of our legislatures—though like all power liable to be abused—was essential if Canadians were to enjoy a political life as free and as vivid as that of the people of the United Kingdom.

And this brings me to another point of great and vital interest in our Constitution. I refer to the plenary power of the Dominion Parliament to make laws for the peace. order, and good government of Canada in relation to all matters not coming within the classes of subjects assigned exclusively to the legislatures of the provinces. The framers of our Constitution could not, of course, create a legislature precisely similar to the Parliament in Great Britain in respect to supreme control over all matters whatever in Canada, because they were bringing into existence, not a legislative union, but a federal union; but in conferring this residuary power upon the Dominion Parliament they adhered as closely as possible to the British system in preference to that of the United States. They did what was possible to make Canada what I submit she was intended to be—and must be-an imperium in imperio. But special interest attaches to the fact that the extent of this federal power has by no means been judicially determined as yet. Of course it does not extend to interference with the provincial powers, but outside that, does it extend to amending the provisions of the British North America Act itself? It is by no means clear that the view expressed in some cases that the action of the Dominion Parliament in this field is subject even to the express provisions of the British North America Act, save as to the provincial powers, is correct. No doubt it may be asked, how can the Dominion Parliament have the power to amend the Imperial Act which established it? The answer may be because the Imperial Act which created it gave it that power. So we come back to the question, does the power to make laws for the peace, order, and good government of Canada in relation to non-provincial subjects, include even this, or does it not? We must never forget that as the Privy Council declared, in a judgment which deserves to rank as one of the charters of our liberties, that the Federation Act conferred upon our legislatures authority as plenary and ample within the limits prescribed as the Imperial Parliament, in the plenitude of its power, possessed and could bestow. And I would submit, as no less a person than Lord Davey himself suggested in the course of an argument before the Board, that the Dominion Parliament might even change the federal Constitution, though not, of course, that of the provinces, Then again, although it is true, no doubt, as a general statement, that the Dominion Parliament cannot legislate except for Dominion territory, yet this does not affect the power of the Imperial Parliament to give the legislatures of self-governing Dominions within the Empire, the power to pass statutes which shall operate outside their borders, though within those of the Empire itself. And the powers conferred upon the Australian Federation Parliament by

[ocr errors]

the Commonwealth of Australia Constitution Act suggest

that no narrow construction should be given to this resi

duary Dominion power: for we find power conferred upon the Commonwealth Parliament to make laws for the peace, order, and good government of the Commonwealth with respect to fisheries in Australian waters beyond territorial limits, with respect to external affairs, and with respect to the relations of the Commonwealth with the islands of the Pacific.’ The question of the power of the legislatures of the self-governing Dominions to legislate extra-territorially within the Empire, would seem, after all, to be merely a question of the construction of the Constitution which the Imperial Government or Parliament has conferred upon them respectively.

Moreover, bearing in mind the fact that the powers of the Dominion Parliament, as also of the provincial legislatures, are as plenary and ample within the limits prescribed by the Federation Act as the Imperial Parliament in the plenitude of its power possessed and could bestow, and that the expressed intention was to confer upon the Dominion a Constitution similar in principle to that of the United Kingdom, it seems that they must have the same power to bind their own subjects everywhere, as the Imperial Parliament has to bind all British subjects everywhere. For the expression ‘subject of a colony has high judicial authority, and, perhaps, may be taken to mean British subjects there domiciled. But in all this we are, as it were, looking forward beyond the stage which we have actually reached in the organic development of this Dominion and the Empire at large. I may stop here perhaps, for a moment, to mention a subject of special interest—the one point in which framers of the British North America Act obviously departed from the analogy of the British Constitution; and it has a special interest at the present moment. Their courage might seem to have failed them when it came to trusting the Dominion (; overnment, or rather the Governor-General in Council, with any complete power of overcoming a dead-lock between the two Houses by recommending the King to add sufficient new members to the Senate to override its opposition. As everyone knows, the exercise of the prerogative power to appoint additional peers was effectively threatened at the time of the first Reform Bill in 1832; and was again threatened, according to rumour, at the time

of the recent Parliament Act. But the British North America Act, by sec. 26, expressly limits any such power to adding at most six members to the Senate. It must be remembered, however, that as sec. 22 shews, there was intended to be a certain balance in the Senate between the different provinces, 24 from Ontario, 24 from Quebec, and 24 from the Maritime Provinces; and it may have been thought an unlimited power to recommend additional appointments would upset this federal aspect of the Upper House. Yet it seems clear that this could have been guarded against by providing that all additional appointments should be equally distributed between the above divisions.” And now I must pass to a feature of our Constitution which cannot be omitted in any review, however superficial, of its points of special interest. I refer to the veto power of the Dominion Government over provincial legislation. Nothing of the sort is to be found in the Constitution of the United States, or in that of the Australian Commonwealth. And yet if the analogy of the British Constitution was to be observed, and at the same time the sound conception maintained of this Dominion as an in perium in imperio—or, as I would suggest, it might well be called, one of the Imperial Kingdoms—it was essential that this power should be conferred upon the federal government. J3ut by what seems a perfectly sound and natural development of constitutional theory, a change of view has established itself since the early days of Confederation. Even as late as 1882 we find a Quebec appellate Judge stating that “the true check for the abuse of (provincial) powers, as distinguished from an unlawful exercise of them, is the power of the central government to disallow laws open to this reproach.” We may probably consider such a view as this now finally discarded. A series of decisions of the Judicial Committee of the Privy Council has established. that the provinces, acting within the scope of their powers, are almost sovereign States; and we may perhaps say, with confidence, that a domestic constitutional convention has now established itself in the Dominion that the proper remedy for provincial legislation which is unfair, or unjust, or *I'or an attempt in 1873 to have this power to add six memhers to the Senate exercised. and the refusal of the Imperial Government. on the ground that no sufficiently serious and permanent difference had a risen between the two Houses for which the limited creacontrary to the principles which ought to govern the legislatures in dealing with private rights, is not the federal veto power, but an appeal to those by whom the legislature is elected. Anything else would mark an inferior phase of political life in the provinces to that enjoyed by the people of the United Kingdom. Yet just as there must, if the Imperial Union is to continue, be a reserve power in the Imperial Government to veto Acts of the King's self-governing Dominions beyond the sea where they seriously conflict with Imperial interests, or the honourable fulfilment of Imperial obligations, so it seems equally clear that if this imperium in imperio, the Dominion of Canada, is to be maintained, there must always remain a reserve power in the Federal Government to veto provincial legislation which seriously conflicts with the interests or the honour of the Dominion as a whole. I must ask yet a few minutes to briefly refer to one more feature of the Constitution of this Dominion of special interest and immense importance. I mean the character of the exclusive powers expressly vested in the federal legislature, in which the framers of the British North America Act took warning from the experience of the United States to the lasting benefit of this country. Most important of all, perhaps, is the general power to regulate trade and commerce, supplemented by power over such subjects as are inseparably and vitally connected with trade and commerce, such as lines of steam and other ships, railways, canals, telegraphs and other works and undertakings connecting the province with any other or others of the provinces, or extending beyond the limits of the province: navigation and shipping; banking, the incorporation of banks, and the issue of paper money; bills of exchange and promissory notes; and bankruptcy and insolvency. The United States possess no such powers as these over trade and commerce. As Mr. Z. A. Lash said in a weighty address recently delivered by him to the Toronto Board of Trade: “It does not require much consideration to see that to regulate efficiently the trade of a country the size of Canada or the United States, where the question of transportation and freight rates is of such vital importance. where discrimination may enrich one industry or section and ruin another, and where huge combinations may practically monopolize the necessaries of life both in foods and

tion of Senators, allowed by the Act. would he an adequate remody. see Todd's Parl. Gov. in Brit. Col. 2nd ed., p. 204.

« PreviousContinue »