« PreviousContinue »
3. State powers.
United States, and to the definition and punishment of piracies and felonies committed on the high seas, and of offences against the law of nations; whereas in Canada the whole Criminal Law, except the constitution of Courts of Criminal Jurisdiction, is practically within the jurisdiction of the Dominion. This course was adopted not from any distrust of the provinces, but from the desire to secure a uniform criminal code throughout the Dominion, so that a citizen in whatever part of the Confederation he might be would always know what was his position in regard to the Criminal Law.
2. Congress can declare war, a power that in Canada belongs to the Crown.
3. In the United States the powers not specifically delegated to the United States are within the jurisdiction of each State: in Canada the powers not specifically given to the Provinces are reserved to the Dominion. The Canadian principle was adopted with the express object of strengthening the central government, and of preventing any question arising as to “state rights” or to the sovereignty of a province. The exercise of the power of the Governor-General to veto a Provincial bill, on the ground of its infringing the settled policy of the Dominion, has however brought about a conflict between Manitoba and the Dominion, though such conflict tends to be peacefully settled.
4. Certain restrictions exist on the legislative powers of Congress that are not found in Canada. That direct taxes should be in proportion to the census, or that no ex post facto law or bill of attainder should be passed, are principles binding on Congress but not on the Dominion Parliament.
5. There is another class of restrictions imposed on the legislative power of Congress which though they embody principles that have been incorporated into the law do not apply to Canada Canada respects freedom of speech, freedom of
1 Debates on Confederation, p. 41.
press, the right of the people to assemble or to petition the Government; but whilst Congress cannot pass a law infringing these rights, the Canadian, like the British, Parliament
may 6. Congress with the assent of three-fourths of the States Amendmay amend its Constitution; the Dominion Parliament has no similar power.
The Dominion may alter the franchise tution. or legislate on matters relating to the election of members of the House of Commons, but so far as substantial changes in the Constitution are concerned recourse must be had to the Imperial Parliament.
ment of Consti
It is naturally to be expected that difference of opinion Conflict would occasionally arise as to the limits of the Dominion and Provinces the Provincial powers respectively. The only serious conflict and do. that has arisen is due to the exercise of the right of the Governor-General to veto a Provincial Act. In this respect the Governor-General by statute possesses a power that does not belong to the Crown. The Crown may veto an Act of the Dominion, but cannot veto an Act of a Provincial legislature. The number of Provincial Acts vetoed by the GovernorGeneral is comparatively small, but the mere fact that the Governor-General, acting on the advice of his ministers, may find himself obliged to veto a Provincial Act on the ground that it is contrary to the “policy of the Dominion,” may give rise to a serious conflict of Provincial versus Dominion policy
In Canada, as in the States, the judiciary (including Judiciary. under this term the Judicial Committee of the Privy Council) tends to occupy the most prominent place as the arbiter between Provincial and Dominion rights. The decisions of the Courts as to the limits of the legislative power of the Dominion and of the Provinces have been loyally accepted in Canada as in the States, and as time goes on there seems every reason to expect that the importance and power of the
judicature will be one of the most striking developments of the Constitution. The judges of the superior, district, and county courts of each province are appointed by the GovernorGeneral. The independence of the judges is secured by making their office tenable only during good behaviour, by charging their salaries on the civil list, and by the provision that they can be removed only by the Governor-General on address to the Senate and the House of Commons.
Unexpect Some unexpected constitutional developments have oced developments,
curred in Canada as in the United States. In the States there is no more characteristic feature than the growth of the power of the Senate as compared with the decreased influence of the House of Representatives. In Canada, on the other hand, the influence of the House of Commons has grown at the expense of the Senate. Two reasons may be assigned for this. In the first place the Canadian senators are nominated by the Governor-General as the representative of the Crown, whereas the American senators are elected by the State legislatures, and an elected body tends to become more powerful than a nominated body. The system of nomination is indeed sufficient of itself to explain the decadence of the Canadian Senate; but the election of senators by the State legislatures is not sufficient to account for the power of the American Upper House. Such a method of election is not far removed from the method of nomination. The real cause of the predominance of the latter body seems to lie in the fact that all ministers and officials are appointed by the Senate though nominated by the President. No such power has been given to the Canadian Senate. All ministers and officials are appointed by the Governor-General as representing the Crown, though such appointments, when not the result of examination, are made on the advice of the Privy Council.
A second unexpected result has been the conflict between
at least one of the Provinces and the Dominion. When the framers of the Constitution provided that all powers not specifically delegated to the Provinces should remain with the Dominion, it was thougḥt that all danger of conflict between the central authority and the province had been removed. The exercise of the Governor-General's right of veto in the case of the Manitoba Railway Acts shewed that this was not the case, and that where the veto is exercised, not on the ground that the province has exceeded its legislative powers, but on grounds of “general policy,” a conflict may arise. It should be added that the Dominion is fully alive to the necessity of rarely interfering with provincial legislation, except where clearly illegal'.
1 See post, chap. xv.
CONSTITUTIONAL HISTORY OF THE PROVINCES.
The Dominion of Canada as now constituted comprises seven organized Provinces, one organized District, and a vast extent of territory, sparsely inhabited, known as the North West Territories.
The area and population of Canada is as follows:
Area and population.
Union of the Provinces.
Originally the Dominion was composed of the Provinces of Ontario and Quebec (previously known as Upper and · Lower Canada respectively), Nova Scotia and New Brunswick. By an Imperial Order in Council' dated the 23rd June 1870 the North West Territories were ceded to the Dominion as from the 15th July 1870, and a Canadian Act (33 Vic. c. 3) formed out of these territories the new Province of Manitoba. British Columbia was admitted into the Dominion as from the 20th July 1871 by an Order in
1 See Appendix,