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Live in the pride of that Supreme Republic,
Thine her first voice of song !
A lyric undertone heard in the twilight,
Beneath the dark Church tower!
The Slave set free, the Young Man's heart turned Psalmis
The keynote of the age !
And to the rough New World's uncultured ferment
To Europe's heart more nigh I
Nor bloomed thy verse a hothouse-born exotic ;
Mid the Atlantic's roar.
Thee, by thy grave this day, we may not flatter,
Above the 'sands of Time.'
And yet, dear singer of our Homeland music,
Our Maple chaplet twine.
THE POWER OF DISALLOWANCE AND ITS NATIONAL
BY THE HON. EX-SPEAKER COCKBURN, Q.C., OTTAWA.
TT was not my purpose to have made ber, have induced me to resume its I any further remarks on this sub discussion, with the view of placing ject, but certain criticisms which have | before the readers of the CANADIAN appeared in contraversion of the posi. MONTHLY a brief resumé of the reation taken by me in the March num- | sons which establish, beyond question, the true meaning of those disputed I This dictum is in perfect harmony clauses of the Union Act, according with the Confederation scheme, as to the intention and spirit—as well as agreed upon at Quebec, namely, that the letter-the latter of which is seem the Federal authority should be subingly admitted.
stituted for that of the Crown in reThe veto power, as every student spect of the Provincial Governments knows, is an essential element of our and Legislatures. system of Monarchical Government: no It is proper to note the advance in legislation under British rule can have self-government which this constituexistence independently of it. The tional change has effected. Under the Acts of all the Colonial Legislatures system before Confederation the legis. are, and must continue to be, subject lative acts of the Provinces could have to the veto in the hands of the Sove. been vetoed (under similar powers of reign. This power, as it existed in disallowance) by the Crown, acting respect of the old Provinces of British under the advice of Imperial MinisNorth America, now included in the ters who were in no way responsible Confederation, was in the most formal to the people of those Provinces, and, manner made over to the Central Gov although it may be said that the veto ernment of the Dominion, so far as it was seldom used, yet it was certainly applied to future legislation by the exercised time and again, for during Provinces ; and although copies of all the Union of Upper and Lower Canthe Acts prepared by the Dominion ada, from 1841 to 1867, we find that Parliament are required—as was the no fewer than nine Acts of the Legiscase under the old Provinces—to be lature were disallowed or refused the transmitted to the Secretary of State Royal assent, some of which were for the Colonies (so that Her Majesty's purely local and provincial in their right of veto may be exercised or not character. exercised) there is no similar provision On the other hand, the veto of Proas to the acts of the Local Legislatures, vincial Acts under our present system nor is Her Majesty's Government kept of government can only be effected by advised thereof, the right of veto in | the Governor-General with the advice respect of the same having been trans of his Canadian Ministers who are referred to the Dominion.
sponsible directly for such advice to A question as to a New Bruns. the Dominion Parliament, which is the wick School Act was submitted by the proper Court of Impeachment, should Imperial authorities to the highest they err in such advice. Thus responcourt of resort, the Judicial Commit sible government, in respect of the distee of the Privy Council—and the fol allowance of Provincial Acts, is more lowing reply, under date of 13th Sep effectually secured to the people of the tember, 1872, was officially communi. respective Provinces under Confederacated to the Secretary of State for the ation than it ever was before ; and we Colonies.
do not find that the occasions for the • It appears to His Lordship (the exercise of the power have numerically Lord President of the Privy Council) increased. Keeping in view the large that, as the power of confirming or dis increase of legislation that has taken allowing Provincial Acts is vested by place, the number of Ontario Acts, for the Statute (the B. N. A. Act of 1867) instance, that have been disallowed in the Governor General of the Do since Confederation is four; while the minion of Canada, acting under the whole number of disallowed Acts advice of his constitutional advisers, throughout the Dominion is in the there is nothing in the case which neighbourhood of thirty, as against a gives to Her Majesty in Council any a total number of acts that were passed jurisdiction over this question.' | in all the provinces of over 5,000 In this connection it is also worthy | and enthusiastic audience, the Hon. of notice, that no fewer than eight of George Brown, as President of the Exthe Acts of the Dominion Parliament ecutive Council of the Province of have, since Confederation, been disal- | Canada, gave the official explanation lowed, or refused the Royal assent, by in a speech of great power and clearHer Majesty acting upon the advice ness of detail. The Hon. gentleman of her Imperial Ministers, some of is reported inter alia to have spoken as which were so disallowed, or refused, | follows: not for reasons of Imperial policy, but The various details of the Confor reasons of State bearing on the federation scheme were brought up interests of Canada—as so stated for consideration by the Conference in notably the Act to reducethe Governor the form of resolutions. Those resoGeneral's salary, which was passed in lutions were separately discussed, 1868; and yet, if we turn to sec. 91, amended, and adopted; and, as finally and indeed to the whole context of the | adopted by the unanimous consent of B. N. A. Act, we find that the legis. the whole Conference, they now stand lative powers of the Dominion Parlia on record.' , . . . ment are far more absolute, as well as •There was one point to which he more extensive, than any that were was desirous of calling particular atconferred on the Provinces in sec. 92. tention, namely, to the fact that in
Is there, then, it may be asked, any framing their constitution they had good reason for the contention that carefully avoided what had proved a the Provinces were intended to occupy great evil in the United States, and the anomalous position of entire free that is the acknowledgment of an indom from the veto power in cases herent sovereign power in the separate within their jurisdiction, while the States, causing a collision of authority provision as to disallowance of Domi between the general and States Gov. nion Acts, couched in the very same ernments which, in times of trial, had language, preserve (and must ever pre. been found to interfere gravely with serve) to Her Majesty in Council a the efficient administration of public complete control over all the legisla. affairs. In the Government to be tion of the Dominion ?
formed under this new constitution, In order to arrive at a clear, and while we have committed to the local we may hope conclusive, answer to governmentall that necessarily and prothis important question, we must turn perly belongs to the localities, we have to the Official Acts, the public speeches, reserved for the general government and the debates just before and at the all those powers which will enable tbe time of the passing of the Union Act. legislative and administrative pro
The Quebec Conference closed its ceedings of the central authority to be labours on the 31st October, 1864, carried out with a firm hand. the result being the adoption of a · With this view we have provided series of resolutions which formed the that the whole of the judges throughbasis of the Act of Union subsequently out the Confederation, those of the passed by the Imperial Parliament, County Courts as well as of the Supeand known as the British North Ame rior Courts, are to be appointed and rica Act of 1867.
paid by the General Government. We After the close of the Conference, have also provided that the General the delegates visited the chief cities Parliament shall be specially charged of the different Provinces, and made | with the performance of all obligaknown publicly the purport of the re tions of the Provinces, as part of the solutions that had been so adopted. British Empire, to foreign countries.
At Toronto, in the month of Novem The Lieutenant-Governors of the difber of that year, before a very large | ferent sections are to be appointed by
the General Government, and the the system, and to its harmonious power of disallowing all bills passed operation both in the general adminby the local legislatures is to be listration and in the Governments of vested in the Governor-General in the several Provinces.' Council. In this way we will have a It will be apparent from this decomplete chain of authority, extend spatch, and from the subsequent deing from Her Majesty, the Queen, to bates in the British Parliament, that the basis of our political fabric.'
any plan of confederation which did The Governor General, having trans not provide for a supreme central conmitted to Her Majesty's Government trol over the Provincial Governments a copy of the Resolutions adopted at and Legislatures would not have been the Quebec Conference, the same was sanctioned by Her Majesty's Governacknowledged in a despatch by the ment, nor would any such measure Colonial Minister of the 3rd Decem have been submitted by them to the ber, 1864, in which occur the follow Imperial Parliament. ing passages :
The Legislature of the Province of Her Majesty's Government have Canada met in February, 1865, when given to your despatches, and to the | the Quebec resolutions were submitted resolutions of the Conference, their and carried in both Houses by large most deliberate consideration. They majorities. It would be tedious to refer have regarded them as a whole, and as at any great length to the Debates, having been designed, by those who which exhausted the whole subject, have framed them, to establish as com under a sharp and determined critiplete and perfect a union of the whole cism directed against the whole and into one Government, as the circum every part, feature, form, and condistances of the case, and a due con tion of the scheme, and led by able sideration of existing interests, would and talented exponents of every conadmit.
ceivable theory of Government, the • They accept them, therefore, as statu quo of the present colonial conbeing, in the deliberate judgment of dition, the legislative against the strictthose best qualified to decide upon the ly federal system, and the union of a subject, the best framework of a mea. legislative and federal system as sure to be passed by the Imperial Par against both. The following extracts liament for attaining that most desir from some of the speeches delivered in able result. .... But upon the the Assembly which bear specially on whole, it appears to Her Majesty's the subject of the supreme authority Government that precautions have in regard to the proposed autonomy of been taken which are obviously in. the provinces will show how thotended to secure to the Central Gov roughly this subject was sifted, anaernment the means of effective action lysed, and understood. throughout the several Provinces, and See the Confederation debates :to guard against those evils which Sir John Macdonald said: 'Here must inevitably arise if any doubt we have adopted a different system were permitted to exist as to the re (from that of the United States), we spective limits of central and local have strengthened the General Governauthority. They are glad to observe ment, we have given them all tbe great that although large powers of legisla subjects of legislation, we have contion are intended to be vested in local ferred on them all the powers which bodies, yet the principle of central are incident to sovereignty... control has been steadily kept in view. We have avoided all conflict of jurisThe importance of this principle can- diction and authority.. and we not be overrated. Its maintenance is will have in fact, as I said before, all essential to the practical efficiency of the advantages of a Legislative Union under one administration, with, at the authority between the local and censame time, the guarantees for local tral governments in this case, as there institutions and for local laws which has been in the case of the Americans. are insisted on by so many in the Pro- | The powers of the local governments vinces now I hope to be united . . are distinctly and strictly defined, and .. With respect to the local gov you have no assertion of sovereignty ernments, it is provided that each shall on the part of the local governments be governed by a chief executive officer as in the United States, and of powers who shall be nominated by the Gene inconsistent with the rights and securral Government. As this is to be one ity of the whole community. Then united Province, with the local gov the other point which commends itself ernments and legislatures subordinate so strongly to my mind is this, that to the General Government and Legis. there is a veto power on the part of lature, it is obvious that the chief the General Government over all the executive officer in each of the Pro legislation of the local Parliaments. vinces must be subordinate as well. That was a fundamental element which The General Government assumes the wisest statesmen engaged in the towards the local governments pre framing of the American Constitution cisely the same position as the Impe-| said, that, if it was not engrafted, it rial Government holds with respect must necessarily end in the destructo each of the colonies now.'
tion of the Constitution. . . . . Mr. George Brown : “We have re Now, sir, I believe this power of netained in the hands of the General gative, this power of veto, this conGovernment all the powers necessary trolling power on the part of the Cen. to secure a strong and efficient admin tral Government, is the best protection istration of public affairs. By vesting and safeguard of the system ; and if the appointment of the Lieutenant it had not been provided, I would Governors in the General Government have felt it very difficult to reconcile and giving a veto for all local mea it to my sense of duty to vote for the sures, we have secured that no injus resolutions.' tice shall be done without appeal in Mr. Alexander Mackenzie : 'Personlocal legislation.'
ally, I bave always been in favour of Sir A. Dorion (speaking contra) : , a Legislative Union where it can be · When I look into the provisions of advantageously worked ; if it could be this scheme, I find another most objec adapted to our circumstances in these tionable one; it is that which gives colonies, I would at this moment be the General Government control over in favour of a Legislative Union as the all the Acts of the local legislatures. best system of government. ... What difficulties may not arise under It is quite clear that if the Legislative this system ? Now, knowing that the Union could not be worked well with General Government will be party in Upper and Lower Canada, it would its character, may it not, for party work still worse with the other Propurposes, reject laws proposed by the vinces brought in. There remained, local legislatures, and demanded by a therefore, no other alternative than to majority of the people of that locality. | adopt the Federal principle..
... We shall be (I speak as a The veto power is necessary in orLower Canadian), we shall be at its der that the General Government may mercy, because it may exercise its have a control over the proceedings of right of veto over the local parlia the local legislatures to a certain exments.'
tent. The want of this power was Sir John Rose : “There can be no the great source of weakness in the difficulty under the scheme between United States. . . . the various sections, no clashing of | Mr. Dunkin (speaking contra) :