There is in the United States system a clear and distinct line drawn between the functions of the General and State Governments. Some may not like the idea of State sovereignty, and many may wish that more power had been given to the General Government. But this much is plain, that it is not proposed to allow anything approaching State government here.

And there is the strange and anomalous provision that not only can the General Government disallow the Acts of the Provincial Legislatures, and control and hamper and fetter provincial action in more ways than one, but that whenever any Federal Legislation contravenes, or in any way clashes with provincial legislation, as to any matter at all common between them, such Federal Legislation shall override it and take its place. It is not too much to say that a continuance of such a system for any length of time without serious clashing is absolutely impossible.'

Mr. Morris: I now proceed to state my belief that we shall find great advantage in the future in the possession of a strong Central Government and local or municipal Parliaments such as are proposed for adoption. I believe the scheme will be found in fact and in practice-by its combination of the better features of the American system with those of the British Constitution -to have very great practical advantages.'

Mr. Hope Mackenzie.—' I look upon it as a scheme more national than federal in its character, as looking more to a national union of the people than a union of sections, and it is chiefly because of this feature, that it commends itself to my judgment. The hon. member for Lotbinière (Mr. Joly) dissented from this view, and argued that unless the supreme power was placed in the seperate Provinces, it could not be acceptable to Lower Canada, as otherwise their institutions would be endangered, and yet he elaborated an argument to prove the fleeting and

unstable character of federation established on the only principle he seems disposed to accept . . . Now, sir, while the hon. gentleman will have nothing to do with it, because of the supreme central power that is provided in the scheme, I take it just because of that controlling central power.'

Sir Richard Cartwright.- In every state which deserved the name of an Empire, the supreme authority of the central power in all that concerns the general welfare has been acknowledged,

even where there may be

some conflict of jurisdiction on minor matters, every reasonable precaution seems to have been taken against leaving behind any reversionary legacies of sovereign state rights to stir up strife and discord.'

Mr. Scoble. A careful analysis of the scheme convinces me that the powers conferred on the general or central government, secures to it all the attributes of sovereignty, and the veto power which its executive will possess, and to which all local legislation will be subject, will prevent a conflict of laws and jurisdiction in all matters of importance.'

The result of this prolonged debate is well known, the address was carried in the Upper House by a majority of 30; the yeas being 45, and the nays 15; and in the Lower House the majority was 58; the yeas being 91, and the nays 33. Of the minority in the Lower House only 8 were Upper Canadian members, and of those not one raised his voice against the power of disallowance being placed in the hands of the Central Government, their opposition proceeded on other grounds which attacked the whole scheme, so that, so far as the Province of Ontario is concerned, her representatives were unanimous on this question, admitting that the objections of the eight dissenting members, as to the union. generally, had been overcome.

It is not necessary that we should follow the varied fortunes of Confederation in the Maritime Provinces, as

we have to deal for the moment with the question as it is being interpreted in Ontario, it is enough to say that the pro-confederates in those provinces ultimately carried the day, and thus the measure became ripe for the action of the Imperial Government and Parliament.

On the 19th of February, 1867, the Earl of Carnarvon, then Colonial Minister, moved the second reading of the British North-America Bill in the House of Lords-the Bill having been first introduced into that House, passed all its stages there before being sent for concurrence to the House of Commons. The following extracts, bearing upon the question under consideration, are taken from his lordship's very able speech on the occasion. He said:

'My lords, I now pass to that which is, perhaps, the most delicate and the most important part of this measure -the distribution of powers between the Central Parliament and the local authorities.

In this is, I think, comprised the main theory and constitution of Federal Government; on this depends the practical working of the new system. And here we navigate a sea of difficulties. There are rocks on the right hand and on the left. If on the one hand the Central Government be too strong, then there is risk that it may absorb the local action, and that wholesome self-government by the provincial bodies, which it is a matter both of good faith and political expediency to maintain; if, on the other hand, the Central Government is not strong enough, then arises a conflict of State rights and pretensions, cohesion is destroyed, and the effective vigour of the central authority is encroached upon. The real object which we have in view is to give to the Central Government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured on those questions that are of common import to all the Provinces, and,

at the same time, to retain for each Province so ample a measure of municipal liberty and self-government as will allow, and indeed compel, them to exercise those local powers which they can exercise with great advantage to the community.

In closing my observations on the distribution of powers, I ought to point out that just as the authority of the Central Parliament will prevail, whenever it may come in contact with the local legislatures, so the residue of legislation, if any, unprovided for in the specific classification which I have explained, will belong to the central body. It will be seen, under the 91st clause, that the classification is not intended to "restrict the generality" of the powers previously given to the Central Parliament, and that those powers extend to all laws made for the 'peace, order and good government' of the Confederation-terms which, according to precedent, will, I understand, carry with them an ample measure of legislative authority. I will add, that while all general Acts will follow the usual conditions of colonial legislation, and will be confirmed, disallowed, or reserved for Her Majesty's pleasure by the Governor-General, the Acts passed by the Local Legislature will be transmitted only to the Governor-General, and be subject to disallowance by him within the space of one twelvemonth.’

66

"

The Marquis of Normandy seconded the motion, in a speech directed towards other portions of the Bill.

Earl Russell, after some general remarks, said: 'He had to express his regret that this was not a legislative instead of a Confederate union. He feared that seperate local legislatures would be attended with great inconvenience, and that the work of the Confederation could only be done by a single legislature.

Lord Monck said: A noble earl had alluded to the present scheme as a confederation, and had stated that he would rather have had a legislative

union. The weakness of a confederate union was generally supposed to reside, in the absence of sufficient authority, in the central power. But not one of the sources of weakness of federal union was to be found in this confederation. The union was not created by the act of the States themselves the supreme authority and the executive authority were both to be possessed by the central power-and for all purposes of union the Central Government acted directly through its own officers upon the people of the United Provinces. The central power also reserved to itself the complete control over the legislative, the executive, and the judicial authorities.'

Lord Lynden having made some remarks of approval, the motion was agreed to.

On the 26th February, after a speech in opposition and an amendment moved by Lord Campbell on grounds not affecting this question, the Bill was read a third time, then passed and sent to the Commons.

In the House of Commons on the 28th February

Mr. Adderly moved the second reading of the Bill, the following extracts from his speech have reference to the subject of our present enquiry -he said: "The power of the Provincial Legislatures in reference to legislation will be confined to a certain number of essential subjects. The Governor-General will have a veto on all legislation; and the Central Legis lature will be invested with a general power of providing for the good gov ernment and peace of the country; but without derogating from the general power certain specified powers are enumerated for the Central Legislature. It will be seen that by these provisions, arrangements are made as far as possible for insuring the unity and strength of the Central Government.'

Mr. Cardwell-'I admit there is a provision not in the Bill which I should have been glad to have seen

The motion was agreed to and the Bill read and committed. On the 4th March, the House was moved into Committee, and after some slight amendments to the previous clauses. On clause 91 bing moved—

Mr. E. W. T. Hamilton said—' He wished to know how a conflict of jurisdiction between the Parliament of Canada and the Provincial Legislature was to be settled.

Mr. Adderly said 'He did not think that any serious conflict of the kind anticipated by the hon. member could take place so long as a supreme power was vested in the GovernorGeneral to veto Acts.'

Mr. Roebuck said- The framers of the American constitution foresaw this difficulty and provided a Supreme Court, whose province it was to decide whether even the laws passed by Congress were illegal. This Bill contained no provision to prevent the passing of unconstitutional laws. In other words,

* By the New Zealand Act, 15 & 16 Vic. ch. 72. sec. 53, power was given to the General Assembly to make laws overriding the laws of the Provincial bodies, in addition to the veto held by the Governor.

the Canadian Parliament would be supreme.'

Mr. Cardwell said such questions Icould be raised in the Colonial Law Courts, and would be ultimately settled by the Privy Council in England.

The clause was agreed to, and the Bill was reported with amendments.

On March 8th, the amendments were concurred in, and the Bill was read a third time and passed, and on the 28th March it received the royal

assent.

Since the new constitution under this Statute went into full operation, a period of over fourteen years has elapsed, during which an official interpretation has been put upon the clause conferring the power of disallowance; by the Dominion Ministers of Justice, Dominion Orders in Council, and certain official correspondence and statements by Ministers, which it is now proposed to consider in connection with this enquiry.

A return was made to the House of Commons on 1st March, 1877,* of all correspondence between the Federal and Colonial Governments concerning the disallowance of, or other action taken upon, Provincial Acts passed and Provincial Bills reserved. This return gives the papers in connection with each Act or Bill, the report of the Minister of Justice thereon, and the Order in Council approving of such report, Mr. Todd says that up to the end of 1878, there had been in all twenty-seven Bills disallowed; of which three were from Ontario, two from Quebec, four from Nova Scotia, twelve from British Columbia, six from Manitoba, while there were none from Prince Edward Island, and none from New Brunswick. This enumeration would seem only to include the disallowed Acts, not the reserved Bills, upon which action was taken by the Dominion Government. I have extracted from the above re

*Sess. Papers, 1877, vol. 10, No. 89. +See Todd's Par. Gov't in the Colonies, p. 371.

turn, all those cases in which the disallowance and the withholding of the Governor-General's assent was founded on reasons other than incompetency of jurisdiction. Some cases have occurred since the above return, besides the Stream's Bill, but they will make no material difference in the conclusions to be arrived at.

No. 1. From Prince Edward Island. 'The Land Purchase Act of 1874,' was reserved for the assent of the Governor-General. The assent was refused for the reason that the Act was objectionable, in that it did not provide for an impartial arbitration in which the proprietors would have representation for arriving at a decision on the nature of their rights and the value of the property involved, and also for securing a speedy settlement of the matters in dispute. The report of Mr. Fournier, Minister of Justice, was concurred in and approved by Council, 12th December, 1874.

No. 2. From Prince Edward Island. 'The Act to Amend the Land Purchase Act of 1875' was reserved for the assent of the Governor-General. This assent was withheld for the reason that it (the Bill) was retrospective in its effect; that it dealt with the rights of parties then in litigation or which might yet fairly form the subject of litigation, and that there was an absence of any provision saving the rights and proceedings of persons whose properties had been dealt with under the Act of 1875. Mr. R. W. Scott, Acting Minister of Justice, concurred in by Council, 21st July, 1876. No. 3. From Manitoba.

'An Act respecting Land Surveyors was reserved and assent withheld for the reason that the bill was premature and unnecessary as reported by the Minister of the Interior, approved of by the Minister of Justice, Mr. Blake; concurred in 7th February, 1876.

No. 4. From Manitoba.

'An Act to amend the Act intituled the Half-breed Land Protection Act,'

passed in 1875, 38th Victoria. Disallowed on the report of the Minister of the Interior, that no notice of it had been published in the Manitoba Gazette as provided in one of its clauses and recommending its disallowance especially as, in his opinion, the original Act, 37 Vict. c. 44, afforded all necessary protection to the purchase of half-breed land rights. Concurred in by the Minister of Justice, Mr. Blake, and approved of by Council, 7th October, 1877.

In addition to the foregoing, the case of the Quebec Act, 39 Vic., chap. 7, intituled 'An Act to compel Assurers to take out a License,' may be properly referred to. The Minister of Justice, Mr. Blake, made a lengthy report upon the constitutionality of the Act, and he also supervised its policy as to an objectionable feature in these words: The undersigned feels bound to point out that in one particular this Act is specially objec tionable. This Act requires payment by the Companies of a tax of one per cent. upon the premiums for renewals of life policies, although made before the passing of the Act.

This seems objectionable on principle, and calculated to produce a feeling of insecurity abroad with reference to Provincial legislation, and the undersigned recommends that the attention of the Lieutenant-Governor be called to the provision with a view to its amendment next Session.'

From the five cases just enumerated it is very plain that the Dominion Government of that day had not, nor have the Government of the present day, put the construction upon the 90th section which is being contended for. They have not considered that the power of disallowance merely imposed on the Governor General and his fifteen ministers the non-political duty of checking the legal mistakes which are sometimes found in the Acts of the Local Legislatures.

A distinction has been drawn between the case of a reserved Bill, from

which the Governor-General's assent has been withheld, and the case of an Act passed which has been disallowed, if all other things are equal between the two Prince Edward Island Bills, and the Ontario Streams Act 'and on the face of the reports of the Ministers of Justice, they are on all fours with each other-there can be no real difference so far as the exercise of the power of disallowance is concerned the Governor-General is given no more right to decide upon the question of policy in one case than in the other, the argument is that he must not enquire into the policy at all, because the Provincial Legislatures hold exclusive powers then what gave

him jurisdiction in the Prince Edward Island cases the reservation by that Government, and the implied assent to his so acting which such reservation gives? But consent can never give jurisdiction, that can only be drawn from the statute; the truth is that these three cases must stand or fall together.

Mr. Blake, on the 31st of March, 1875, in moving certain resolutions in the House of Commons, with reference to the erroneous position maintained by the Colonial Minister, in regard to the use of the power of disallowance (alluded to in the former paper), made use of this language :

'It is hardly necessary to observe that no more delicate function could be discharged by the Executive authority, than the function entrusted to it by this 90th clause. I can conceive of no function which has to be exercised with greater caution, under greater restraint, or with a more careful prevision of its consequences to the future of the Confederacy, than the power of disallowing Acts of the Local Legislatures.'

The sentiments so enunciated by Mr. Blake, were concurred in by the then prime minister, Mr. Mackenzie, by Sir John Macdonald, and the late Mr. Holton, the only three gentlemen who spoke on the question. But let us enquire had all