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in mtmmt 
 
FROM THE TRANSACTIONS OF THE ROYAL SOCIETY OF CANADA 
 
 SECOND SERIES— 1895-96 
 
 VOLUME I. SECTION II. 
 
 BNQLISH HISTORY, LITERATURE, ARCHiBOLOOY 
 
 The Canadian Dominion 
 
 AND PROPOSED 
 
 Australian Commonwealth 
 
 A STUDY IN COMPARATIVE POLITICS 
 
 By J. G. BOURINOT, C.M.G., LL.D., DX.L., LitD. 
 
 •^ 
 
 POR 8ALR BY 
 
 JOHN DURIB ft SON, OTTAWA ; THE COPP-CLARK CO., TORONTO 
 
 BERNARD QUARITCH, LONDON, ENGLAND 
 
 1895 
 
ti' 
 
HBtTION II.. ISW.V 
 
 [8] 
 
 Thanh. \{.8.V. 
 
 I. — The Cannditin Dominion ami prop'K^ed Australian CommonweaUh : A 
 Stuity in Comparative P»litirs. (') 
 
 HyJ.(i. HoiHiNor, <■ M (J . LI, l». D.CL, liiT. I). 
 
 (IUnkI .Miiy l.'illi. IH)).-|.i 
 
 I. 
 
 Nil oiu- fan tifiiy that tlu' iiinsi, iiupoiMaiit Iraturi' of the pivseiil 
 rt'ign liUH iicfii. not tin- victorii's \v«ni It}* (in-at Britain in r<>ivi;rn wars, 
 lor ihrsi" ar»' luit insignificant conipart'il with tlmsc (»!' otln-r linios ; not 
 trinni|ih> in tliploniacv. for tlicy have not hccn rcniarkaliii', ami < 'ana 
 (iians will hariily <ttnsi«h'r even tin- I^t-rinij .Si-a tn-aty an i-qiiivalcnt 
 lor the Ori'^i^on or .Maine surrfmh'r; not cvi'ii succi'ss in litcralure, for 
 inort' hinting tiunc has licm |irolial>iy won l»y wi-itors of other periods ; 
 not the e.Ktraor(linarv e.xpansion of eoninieree and wealth, whieli has 
 resulted from the evolution of sound eeononiie ideas, national eiit(>r|>ris«)^ 
 anii seientitie ilisoovery. .No. a.ssuredly I he most si^uitieanl and enduring 
 aehievement of lh«' rei^n has heun the economic, intellectual and political 
 development of those |irosperous communities which form the colonial 
 empire <d' the British IsK-s. We have had (piite I'ecently some evidence 
 of the remark al'le tji'ow tli. and the imperial aspiration> of these (•o\mi trios, 
 in the conference that has heen held, in the political capital of thu 
 Dominion, of del»';ijalcs IVom eiifht free, self-i;overning colonies in Austral- 
 asia, .South Africa and America, who came to;;«-ther for the express jmr- 
 pose of discus>inu (]uesti(»ns wlii(di alVect not meifly their own peculiar 
 amd si'ctional interests, hut touch mo>t nearly the unity and integrity (d' 
 tile empire at large. Such a conlerenci' was an t-vidcnce not (»nly (d'c<d- 
 onial e.xpansion and ambition, hut an acknowledgment of the importance 
 of Canada in the councils of the wide imperial douuiin of Kngland, simt^ 
 it wais not at London, hut under the shadow of the parliament huildings, 
 at Ottawa, that colonists met f(tr purposes of deliU'ralion. The fact 
 that such a coufcrenct? wus possihle in the year of grace lS!t4 is the most 
 «'xpressive testimony that couM Iw horne to the success of the colonial 
 ]»olicy of a reign which has yiven so admirahlo a system of govenimcnt, 
 not merel}' to Canada, hut (o all those colonies that have attained so 
 favounihle a position among the communities of the world. 
 
 Every lover of imperial interests will watch with some curiosity tho 
 
 ■ This iNipiT is intended as II HU|)|il(Mii(>iit tu ii scries of papers on ('oni|mrative 
 i'olirics in tlie previous volunieH nf tlie Twinsaet idiis, VIM. antl XI,, see. '2. 'I'liese 
 IMipersweriMin: <l) Tlie Kn^lisli ('liaraeteruf C'anailian Institutions. Vi) The i'dlitieal 
 Systems of Canada and the t'nited States. (:<> Federal (iovernmcnt in Switzerland. 
 (4) Parliamentary eontpared witli ConKressioiial (ioverninent. 
 
4 KOYAL SOCIKTY OF CANADA 
 
 later Mliii;«'s of a inovi'iiu'iit, HO clearly in (lie (iiiH-dion not only nf tin' 
 coniint'ii-ial development ot'tiie colonieN. \m\ also of ini|H'nal ■ tifn^tli and 
 unity, ah i> tills important confeivnee. ConCeifnces uf this clianu-ter jfive 
 us the U'st i»ossil>|e t-videnee that colonial state.Hnianslii|) at tin- prvj^ent 
 time has a «leei<le<l teiulenev, not towards isolation from the paivnt >tale 
 and the estahlishmeiit of independent nations, but rather towards plaeinir 
 the ivlations JN'tweeii Kn<;land and her colonial possessions on a wider 
 hasis of community of interest and action. 
 
 II. 
 
 Whatever may Ik- the imniediale coniinercial I'i'siiits of (he inteivol- 
 onial confeivnee. it is ipiite likely (hat so im|)or(ant an asseiiiMaife "l" 
 i'epivs<'iitatives of (he scatteivd colonies of the emitiro must moiv or h*>^* 
 stimulate a deeju'r inteivst in (he aft'airs of each other. I( was for many 
 reasons a happy idea that this st'cond colonial confeivnee — the tirst hav- 
 ing lurn held in London s*'veii years before — should have met at tlie |K>li- 
 tieal capital of the Canadian Dominion, which occupies a pr\'-eiiiiiieni 
 ])ositi<»n among the colonial )iossi'ssions on account of it liavin<; U*en the 
 tirst to carry out successfully a plan id" colonial feih-nition. The fact 
 (hat the parliament of (he fe(lera(ion wassi(tingat iIh' time of the eon- 
 ti'ivnce was a for(uiiate circumstance from which no doubt the Ansinil- 
 asian and South African delegates derived not a litde practical l»enetit. 
 A fetleral parliament, composed ot two JI<tuses. in which seven pn>vin«-e!* 
 an<l a vast territory, extending over thive million and a quarter S4|uai>' 
 miles, weiv ix'pivsented by upwards of tliiv*' hundred members, wa^ of 
 itsi'lf an object les.son for colonies which .still remain jiolitieally isolat*""! 
 from each other, and in a very little Ix^tter position than that occupieil 
 by (he Canadian provinces thirty yeai-s ag«». when the Canadians iveog- 
 nized the necessity for closer union for commercial and government pur- 
 poses. It is true the fetleral iilea lias made some advance in Australasia. 
 A federal council h- H'en in existence for a few yeai-s for the purp<wf 
 of enabling the Ausi.alian colonies to confer together on various ques- 
 (ions of general import, but the experience of the eight yeaix that have 
 pustMHl since the fii-st meeting of this bixly has not Ihhmi .satisfactorj- in 
 view of the want of co-oixM-jition of all the Australian ilependencies. and 
 of the vemjv limite<l scope of its poweix. The larger project of a federa- 
 tion, including the whole of the island continent, as well as New Zealand, 
 was fully discussed some yeais ago, in a convention of delegates from all 
 the colonies of Austndasia. and a bill was drafted for the formation of a 
 " Commonwealth of Australasia," but the m«'asuiv has not yet been dis- 
 cussed and adopted by the legislatures of the countries inteivstwl. although 
 there is no doubt that the scheme is gaining ground amtrng the people. 
 an«l no great length of time will elapse before we siv its realization. In 
 
[iioi-rinot] 
 
 A STUDY IX COMPARATIVE I'OLITIfS 
 
 Suiitli Africa, wliirh Mr Lunis lias woll ilcscrilHMi. in liis iiitrcHliiotion t<> 
 liis t'ditioii ofSir •it'nrir*' ('nriu-wall TifwiVs (iovcrnmctit nf I>i>|K-ii<l«>iicic^. 
 •■ as a coniri'rii's ol' HritiNli jtiiiviiHrs in ilit1i>n'iit staj^cs <»r ilt*|K-n<U>iu-t' on 
 iIk' motlu'r cnuiitrv. iiit«'rini\«Mi with prntt-ctcd tcn-itnri«'s aixi in<lt>|K-n- 
 (lent Hlal»'s.' tin- ItMh-ral i<U*a has ntMvssarily taki-n int jtractical form, and 
 it is not likt'ly to do so for many years to coinf. tlion<;h soMi«>thini^ has 
 iN'cn ijaini'd hy tlic i>stal)lislim«'nt of a custonis union U'twrcn sonu' of tin- 
 political division> of a «;ii-at country uitli enormous possihilitics U'foix' it. 
 No doubt the Austndian and otin-r delegates wlio visite<l Canada 
 took awjiy with them sonn' well-formed impressions of the value of tnh'nil 
 union that will liave «'rteet sooner or later u|ion the lei;islalion of their 
 res|)ective count ri«-s. Tnivi-llin;;. as numy of them ilid. over th»' Dnniinioii. 
 from the new and Hourisliiiiir city of Vancouver, on the Paeitic coast, to 
 the an<-ient cajiital of t^ueU'c. on the St. I.awii'iice. an<l even to tlie old 
 s«'aport of llalitax. on the .\tlantic sliorcs of the maritime jtrovinees. they 
 couM not fail to Ik- dttiily int«'ii'sted hy the f^fix-at wealth of natural 
 n'soui'ct's an<l the many evidences of national i;rowth which they sjiw in 
 the rich mineral districts of British Columhia. in tlu' tertile prjiiries of the 
 Northwest, in the fairly pro>|>»'rous cities, towns and ai;ricultural s»'ttle- 
 meiits of the pn-mier proviiuv (»f OntjuHo. in the enterprisinu and liaml- 
 sonie city of Monti-eal. which illustrat»'s the industrial and «(>mmercial enter- 
 prise ot' < 'anada alntve ail other iin|)orlaiit ccntn-s of population, in the 
 aiiuiidant tisheries and mines of the maritime pntvinccs. and in the lari^e 
 faciliti«'s that an* i-verywheii- i;iven for education, trom the common 
 school to the university. But tlu- most instructive fact of Canadian 
 development, in the opinion of stutesmen. wottid Ik- undoiiliti'dly the suc- 
 cessful accomplishment of a federal union thrcuiiihout a vast territory, 
 reaching from ocean to ocean, emhnicinir lu'arly one-half the continent of 
 America, and divided l»y natun- into divisions when- diverse and even 
 aiitai;oni.sti(r inteivsts had Ih-cii civati'il durini; tlu' ct'iitury that ha<l elaps«>«l 
 iK'tween the formation of their sepanite provincial i;overnments and the 
 estalilishment of «-ontederation. which has hrou^ht them out of their polit- 
 ical isolaticm and <;iveii a community of inteivst to all of British North 
 America. excei)t Newfounilland. This j;r»'at island, which has Uhmi well 
 descrilHMl -as a hui;e hastion thrown out into the north Atlantic which, 
 if duly fortitini aixl armed, could Ik- mad*- the (iilmdtar of the siirrounil- 
 inij st»ns.'' ' has .stoo«l seltishly aloof, and is now sutferini; under conditions 
 of financial and cominercial adveisity amd political emharmssnu'nt which 
 couM never have occnri\'<l had it. years ai;o. formed a part of the Canadian 
 con federal it>ii ; but theiv is still ivason to ho|K' that, after years of isola- 
 tion, it. too. must eix" h>ni; yield, like tlu- old province of Canada, t«> the 
 
 > Tlie Hev. Dr. Moses Harvev, F.H.S.C. the well-known hmturinn of tlie i.slitnd, 
 ill Haedi'ker's C'nnndH, p. W. 
 
e HOYAL S(X'IETY OF CANADA 
 
 t'ui'fc (if <-ir<-uiiislaiir«'H ami nhnw n uilliii^ncHH !«> ;rivt> i-«Miipl«-li>iifw lu iIh* 
 ciiiit'tMlcnitioii of tilt' iioiili. Au>tnilaMiaii Mitit«>hiii«>ii who i|«-<>in- to "vv ilit* 
 ft'di'iiil miidii of tlh'ir ix's|H'ctiv(' colonics (■oiiMiinmalrd iiiii;lii wi-ll n-flti-t 
 lliat lo tlu'iii ill*- ta>k ix iiiiirli easier of accoiii|iliMliiii('iit iliaii liu'* lif«-ii tlit* 
 ranc with Caiiaiia. siii«-«- Aiistnilia Iuih not lo cnrouiihT thoM> nalioiml aii<| 
 MTtioiiai tlifH«'iill'u's which have always, from the <iul««'l. |M'r|tl«-Xf<l aiul 
 liain|M>n><| CaiuMliaii |iulilif iiieii. The liiNtory of (hi- <'aiiailiaii niiioii lor 
 the tweiity-wven y«"i>'*^ Miiee 18(57 is one which the Aiistiiiliaii i-oiiiniiiiiilH-H 
 iiii;;ht well ntinly with protit. since it shows the succes>fMl i-«>'<iills of ••lait — 
 niaiiHliip iliit'cttMl to the attaiiiiiieiit of a ^ffeat piihlic eml — the n-iiiovul ot* 
 s«'etioiial ami national jealousies, ami the eix>ation of a l>roa<l ('anailian 
 sentiment fi'om one eml ot the c<infe<leration to the other. Tlioiit;li many 
 tliitienlties umliinlit«-<lly interven«' in the way of so ilesinihU- a nulioiial 
 end. vet n*i one will ilenv that on the whole the n>snlis have lic«-ii fuvoiir- 
 alile. ami make Canadians sani;iiine for the futun-. despite th** pnilielioiiM 
 of political |H'ssiinists. If tlu* Austndartian and South Afncaii d<*letrat<'9« 
 l(>ai'ned nothing moi-«' than this hy their visit to Canada, their r«-^|Nflivc 
 colonies must Ik- very s«>on the gainers. 
 
 III. 
 
 But it is not my intention to dwell any lon;;er on this iulen-Miiii^ and 
 influential as.st'mltlaj;e of colonial r»'pix'st'ntative Htutesmen. My olijf«-t 
 in this pa|H'r is to show some of the sounrs of the stivn;ilh of iht* 
 Canadian federal constitution, as well as thus*' elements of weaknesj* 
 which atv inheix'nt in every system of fedemtion. however niivfully de- 
 viMud. Ill the coui'se of this series I shall make comparisons lielw«vn the 
 fedend system of the Dominion and that propo.sed l»y the convention of 
 1891 for the Ctiminonwealth of Austiiilia. Sutdi a n>view should have 
 some inteivst for Australians who aiiv halting; in the way of t«-«lenilion. 
 hut ulsf^ for all Kni^lishmen who aiv anxious to study the evidenti-> of 
 coloni. <. velopment throuifhout the empiiv. 
 
 But In'foix' I jtroceed to slmw some of the cxjierii'tici's of Canada for 
 nioiv than a (pnirter of a century in the workini; out of the fe<h-nd union 
 under conditions ot' much ditticidty. 1 shall first contrast in lundlel 
 columns the leading featuix's of the Canadian system of ;;ovemment with 
 those in the drjift of the constitution ]»roposed for the Austnilian f»-«k'r- 
 ation. In this way my readers will U- nhle to form an intelliirihie idea of 
 the ]innciples which lii- at the ha.sis of the Canadian system, as well a- of 
 thost' political ideas which have most intluenco amoni; the stat«-snien of 
 the Australasian de|K'ndencies at this very important )K'ri(M| of their his- 
 tory. when they ar*- hesitalini; In'twiK'n c«ilonial isolation and natiitnjil 
 stiviif^th. I do not propose, however, to take up and ivview seriatim all 
 those featuivsof tinleration which art' summarizeil U'low. hut simply to 
 
rnorBiNor] 
 
 A STUDY IN < OMI'ARATIVE I'OLITICS 
 
 dwell oil ihom- txiK'iifiUH'H of ('tilUMiu iiiiil tliom" ilrtiiilN of ||u> AusiniJiim 
 ImII whicli will U' iiionI iis«>|'iiI to llit' sIiuIciiIh ol' lnl«-nil iiiNtiliitioiiM. 
 
 CANADA. 
 Name. 
 
 Til*- Doiiiiiiioii of ('iiiiiiilii. 
 
 How <'oN.><TITI TKI». 
 
 Of l»roviiic»'s. 
 
 HK.VT op (ioVKHNMKNT. 
 
 Al'STKALIA. 
 Namk. 
 
 Tlir < 'oiiiiiioiiwfiillli of Alls! raliti. 
 
 How roNSTITirEU. 
 
 Ot' sinl«'s. 
 
 Skat ok (ijjvkhn.mknt. 
 
 Al Oltuwii until till' (jUirii other- To Ik- •h'tei-iiiiiUNi l»y ||ic |iiirliii- 
 
 wiw (liivcts. I, lent of the comiiioiiwealtli. 
 
 KXKCI TIVK TOWKR. 
 
 VeMttMJ ill the ([IUH'Ii. 
 
 (itiiH'n's n'|iiVMeiitativ<*. a ifover- 
 iior-j^eiiei-al. appointed by the <]tie<-ii- 
 iii-coiineil. 
 
 .Salary of j^overiiorjrt.iu.nil. KM.- 
 ((0(( .sterling. |>ai(l l»y iloiiiinion <;ov- 
 <Tiiiiient. alt«'inl)le Ity the parliaiiieiit 
 of Caniula. 
 
 Ministers ealletl hy ^overnor-jren- 
 enil to form a eahinet. first sw(M"n 
 in 118 privy eof ( illoi-s. Iiold ottiee 
 while they iiave the eonfidenee of 
 tlie popular house of parliament, in 
 aceoiilaiiee with the eonventions, 
 iindei-standiii^s and maxims of n^ 
 sponsiliK' or parliamentary i^overn- 
 ment. 
 
 Privy eomieillors lu)ld. as tlie 
 <rown may designate, certain de- 
 partments of state, not limiteil in 
 name or number, hut left to tlu- 
 diseivtionary aetion of parliament. 
 Such heads of depart ineiits must 
 s«.rk a new election on accepting 
 these offices of emolument. 
 
 KXKCUTIVK I'oWKII. 
 
 Ve»te<l in the qmH-n. 
 
 (Jmriis repivseiitative. a gover- 
 nor-general, appointed hy thei|iicen- 
 in-coiiiieil. 
 
 Not less than IIIU.UOO. paid by 
 commonwealth, tixed by parliament 
 from time to time, not diminished 
 during teiiuiv of a governor-general. 
 
 Same — only for •• privy coi'.ncil- 
 loi*h" ivad "executive councillors." 
 
 Kxt'cutive councilloi-s administer 
 such departments as govi-rnor-gen- 
 end from time to time establishes. 
 ikhhI not Ik> iv-elected on accepting 
 office. Until other provision is made 
 by parliament, numln'r of such otti- 
 cei>4wlio may sit in parliament shall 
 not exceed si*vcn. 
 
8 
 
 llOYAI, SOCIETY OV CANADA 
 
 ('OMMAM» OF MiMTAUV AND NaVAL rOMMANK oK Mlt.ITARV AND NaVAI. 
 FOKrKS. 
 
 Vi'HtctI ill I lie qUft'll. 
 
 Pauliamknt. 
 'I'lic »|iu'«'n. 
 S«'iiiitt'. 
 
 lIoiiM- ol' coiiiinon^. 
 St'ssimi oner at Itnist owiy year. 
 Pvivilt'i;*'**. imiuiinilii's and powtn-H 
 
 FOKCKS. 
 
 In flicqiuvn's n'ltn'W'ntativo. 
 
 I'aki.iamknt. 
 
 Tli»' qiu'..*n. 
 
 Senate. 
 
 Houst' of ivpivs»'nlativcw. 
 
 Tlie Kanie. 
 
 Surh an (h-clarfl liv tlu' jiarlia- 
 
 licld l.v s«'iiat»' anil lions«- of com- nient of the »oiiinion\v»'alth. and 
 nions. sucli asdclint'd l»y act of the until dcclaivd sucli as aiv held by 
 imrlianient of Canada, hut not to the eoinnions liouse of parliament 
 exceed thoi*> enjoyed at the passing' of (Jivat Untnin at the dale of the 
 of sucli act hy tiie commons house establishment of tlie commonwealth, 
 of parliament of iJi-eat Britain. 
 
 Senate composed of twenty-four Senate composed of eight mem- 
 members for i'ach of the thive fol- l)ei-s from each state, ehosi-n by the 
 lowinir .livisions: (1) Ontario. (2) houses of parliament of the several 
 (iuclK'c. and (3) Maritime Provinces states for six yeai-s, <»nedialf of tho 
 of Nova Scotia. New Brunswick numU'r retinng every tliird year, 
 and Prince Kdward Island. Other 
 provinces to lie repivsented under 
 the constitution, but the total num- 
 ber of s«'natoi*s shall not at any 
 time exc»H'd s«'venty-«'i.i;ht. Sena- 
 toi-s appointed by the crown for 
 life, but Immovable for certain disa- 
 bilities. 
 
 ■Jjvakcr of the siMiate appointe<l Pivaident of the senate elected by 
 by thcixovernor-ircneral (in council), that botly. 
 
 Fifteen senators form a quorum One-thinl of whole number of 
 until parliament of Canada other- senatoi-s form a quorum until par- 
 wise provides. liament of commonwealth otherwise 
 
 provides. 
 Non-attendance for two whole Non-attendance for one whole 
 sessions vacates a senators seat. session vacates a s»«natt»r's si-at. 
 
 MemU'rs of house of commons,, Every thi-ee yeai-s. 
 elected every tive yeai-s. or whenever 
 parliament is dissolved by the gov- 
 ernor-general. 
 
 No property qualitication. 
 
 
 Sauie. 
 

 [uojrinot] a STl'UY IN ToMPAUATlVK F<UJTI('S 9 
 
 (^uulitiriitioii (tr«'l»'ri(iiN fi»i- iiifiii (^ualiHi'iilioii iit'i'|ccl<>r> lin'iiioiu- 
 
 Ik'I'S of llOll^>f of t'MimilOllS UN |ir<>- Itt'lN lit' till' llOllSI- lit l'l'|l|'l'S('llt!jliV<'M 
 
 viilcd liy |iiirliiMiifiit — at |Mfs«'iil a a^ |»n'S( tjIkmI liy tin- law of i-ach 
 
 iiiiit'iinii tVaiK'liix- liasnl mi pm- -.lalf lor I'ji-cturs nf tlir iiioiv iiuiii- 
 
 |MM'ty and iiK-niiii' iiikIci- a iluMiiiiiiiii crou^ lioiisr nf tin- pai'liaiiii'iit uf 
 
 stutiltr. tin- >lati'. 
 
 A t'li'sli a|)|)iiriiotiinciit of ri'|»rr- Saiiu'. 
 s«'iitativrs to III- iiuulc atlrr i-aili 
 tciisiis. or iiiit loiii^iT lliaii iiiti'i'val> 
 of ti'ii ycai>. 
 
 SpnikiT of liinisi- of i-oiiimoiis Saiiuv 
 electtnl liy llir nu'iiiluTMif tlir lioiisi-. 
 
 Quoniiii ot' lioiist^ «>f coiiiiiioii' < jiiofiiiii of lioiisi- of ri>|in-si-iita- 
 twenty MU'nilH'is of wlunii tin* livi's — •oni'-tliinl of the wliolf iiiim- 
 speakiT ciiunts iMU'. Ikt of ihi'iiiIk'i-s. until otlaTwi-k* 
 
 |irovi<U'<l liy parliaiiicnt. 
 
 No sucli jii'ovision. MeniU'r vacatt-s his st-al wliiMi 
 
 aliscnt. without pfrniission. for ont* 
 
 wlioU' Sl'Hsioll. 
 
 No such |irovisi(in. Parlianii'iit to U- calU'il toncthiT 
 
 not later than thirty days after that 
 a|i|>oiiit(>d for ivturn of writ-t. 
 
 AllowaiHi' to «'a(li im-iiiln'r of Allowancf of £r)00, to iiu'nilH>i-!4 
 senate and eoniinons 81.00(». for a of hot h houses until other provision 
 session of thirty <lays. and mileage is made hy purliament. 
 exp<'ns«'s. ten cents a mile ijoini; and 
 ri'turnini;. Not expressly jtrovided 
 for hy constitution hut hy statute 
 of parliament fronj time to time. 
 
 Canadian statut»'s disqualify coll- Same classes disqualitieil in the 
 tractors and certain pei-soiis holdinu; constitution, 
 office or receiviiiu^ emoluments or 
 fees from the crown sittiiii;; in par- 
 liament. 
 
 Kuch hou.se determines the rules The constitution has a special 
 and ordei"s necessary for the re<ru- [u-ovision on tlie suhject. 
 lation of its own j)roceedin;js ; not 
 in the constitution. 
 
 MoNKV AND Tax IJills. . Monkv and Tax Bii^ls. 
 
 The ,sime. Money and tax hills can only ori- 
 
 ginate in the hous<' of !vpivs«'nt- 
 atives. 
 
 rr 
 
lO 
 
 ROYAL SOCIKTY <>K CANAOA 
 
 Saiiu' liy practicr. 
 
 Not in rjuuMliaii coiistitulioii. 
 
 LkgISLATIVE PoWKKS ok TIIK PAH- 
 LIAMKNT OF THE DOMINION. 
 
 Ri'sjKTtivo jio^'i'i-s of tlu' liMlcr.il 
 ])ai'liaiiK'iit an<l itroviiu-ial Icijisla- 
 tuiVM, eimmoi-ati'daiul dt'tiiu'il in tlu- 
 constitution ; tijc rosiduum of power 
 n'stswith tlii-centml ujovernnK'nt in 
 ivlation to all matters not oomiiiij: 
 within tlic classes of subjects by the 
 fiiitish North America Act assi^iu^l 
 «'xclusivcly to the le^islatuivs. 
 
 The Pkovincks. 
 
 Legislatuivs nmy alter ]>rovincial 
 constitutions except as ivfi;ar<ls the 
 office of lieutenant-governor. 
 
 Lieutenant -ii;overnors appointe<l 
 by the :;overnor'general-in-council. 
 and ivmovable by him within live 
 years only for eause assigjieil and 
 communicatee! by niessaj^e to the 
 two housi's of [)arliainent. 
 
 Not in the constitution, but pro- 
 vided for by statutory enactments 
 of parliaments and legislatuivs. 
 
 A<'ts of the ju'ovincial legislatures 
 may Iks disillowed by the govei'nor- 
 genend-in-council one year after their 
 ix'cei pt . 
 
 Kducation within exclusive juris- 
 diction of the provinces, but with 
 
 'Die senati- ean rejert, but not 
 aiiu-nd. taxation or appropriation 
 bills. 
 
 The >»-nate may ii'tuni money 
 and appropriation bills to tiie houst! 
 of iv))ivsentatives. ii'(|U«'>ting th«^ 
 omission or amendment of any ])ro- 
 vision therein, but it is optional for 
 the house to make sueb omissions 
 or amendments. 
 
 LeOISLATIVK I'OWKKS OF THE l*AR- 
 MAMENT OF THE t 'o.M.MON W EALTH. 
 
 The legislative jtowers of tlie fed- 
 eral parlianif!"! an- alone enumer- 
 ated, and the states expivs.s|y ivtain 
 all the powers veste«l in tliem It}' 
 their resjU'ctive constitutions at tlie 
 I'stablishment of the eommonwealth 
 as to maiteis not siK'citie*! as l>eing 
 within the exclusive jui-isdiction of 
 the federal parliament. 
 
 The States. 
 
 Constitutions may U- alteixii un- 
 iler the autliority of tlie parliaments 
 t hereof. 
 
 The parliament of a state nuiy 
 make such provisions as it thinks 
 fit as to the apjiointment of gover- 
 nor of a state, and as to tlie tenure 
 of his office ami liis removal. 
 
 A mendKM' of tlie st-nate or house, 
 of ivpivsentatives cannot lie chosen 
 as a memln'r of the parlian.-'iit of a 
 state. 
 
 When a law o1 the state is incon- 
 sistent witli one of the common- 
 wealth, the latter shall, to the extent 
 of the inconsistency. Ix' invalid. 
 
 No special provisions in the con- 
 stitution, education being one of the 
 
[bourinot] 
 
 A STUDY IN COMTARATIVP: POLITICS 
 
 11 
 
 roiulitioiis lor tin- inai iti-naiuv ami siiliji-cts t'Xflusivcly witliin the |Mt\\- 
 proti'clion of rii;lils and |iriviK'<rfs el's of tlu> stati- parliaini'iits. umltT 
 of ii'lii;ious liodifs in a proviiic*' witli tlii' clanso leaviiit; tlu-iii in )»(»>sfssion 
 
 ivs})t'ct to (liMioiniiiational schools. 
 
 The ft'dt-ni! pariiaiiKMit can alone 
 iinpos*' (luti«'s oi' tax«'s on iinports. 
 
 Xot in tlic < 'anadian constitution. 
 Itnt the ii't^ular constitutional pnic- 
 ticc. 
 
 Similar innvci-. 
 
 The .It diciary. 
 Sanu' in Cana<la. 
 
 of all powi'i-s not expressly i;ivcii lo 
 the feder.kl itarlianicMit. 
 
 A state shall not impose any taxes 
 or duties on ini]K>rts except such as 
 HIM m'ces,s{U'y for executinij the in- 
 sjK'ction laws of a state, and such 
 laws may U' annulled hy tiie parlia- 
 ment of the commonwealth. 
 
 All communications that a state 
 may dwm it expedient to make to 
 the qutvn in parliament shall Ih- 
 made hy tlie fjtovernor-i^ent'ral. and 
 the <|ueen's pleasuiv shall be made 
 known hy him. 
 
 The ])arliament ol the common- 
 wealth may fr<»m time to time ad- 
 mit new .stafes. an<l make laws tor 
 t-iie provisional administration and 
 ijovernment of any territory sui-- 
 rendered hy any state to the «<)m- 
 mon wealth, or of any territory 
 l»laced hy the queen under the com- 
 monwealth, or otherwise acipiinMl 
 hy tJie same. 
 
 The JiDiciAKV. 
 
 The parliament of the common- 
 wealth can estahlish a supreme court 
 and other courts for the common- 
 wealth ; the judi^es to In- ap|»ointed 
 hy the ijovenior-f^enerul. to hold 
 office durinif good l»ehavioui'. not to 
 he ii'moved excei)t u])on an aildress 
 of hoth houses of ])arliament. and 
 to ix'ceive sucli salary as may Ik' 
 rtxiMl hy the parliament. Iiut so tiiat 
 No such ]>ro\i8ion with ivspect to tlie salary ])aid to any judge shall 
 diminution of salary during tenun' not he diminished during his con- 
 of office. tinuance in office. 
 
IB 
 
 ROYAL SOC;iETY OF CANADA 
 
 Siiuilar provisions liy slatutorv TIr-m- courts «aii adjutliratc in 
 ••iiartnicnts ot'doiiiinion [)ariiain«>iit. cast's arisini; out of the <-onstitution. 
 
 or <oiitro\crsi»'s U-twm'u statt's. or 
 ill wliifli the coiiiiiioiiwcalth is a 
 )»arty. 
 
 No sucli |in»vision in ihv const i- ApiK-als hfivtofoiv allowed IVom 
 
 tutioii. Itut a|)|H>als in civil — thouirli the highest court of final ivsort of 
 
 not in einininai — cas«'s aiv alloweil any state to the queen-in-council to 
 
 l>y virtue of the exercisi' of t lie royal In' heivafter heard and <let»'nnine<l 
 
 ]iivro<rative. from provincial courts hy the supiviiie «-ourt of Australia. 
 
 as Wi'll as from the supivme court and its judirmeiit to Ik- final and con- 
 
 of Canada to the quit'ii-iii-council ; elusive. 
 i.e.. to the judicial committee id" the 
 jiiivy council, in practice. 
 
 Not ill the constitution, hut a An apjval to tlie «jneen-in-council 
 constitutional ri<i;ht of Canada as a allowable in any casi' in which the 
 
 <le|vndency of tlie enipiiv 
 
 pul>li«- inteix'sts of the common- 
 wealth, or of any stale, oi- of any 
 other jiart of the qutvii's dominions 
 a IV concvrntnl. 
 
 .Tnd<;esof the superior and county Jud<;es in the states, appointed 
 courts in the provinces (except those and ivmoval>le under exislini«; state 
 of proliate in New Brunswick. Nova constitutions which the state parlia- 
 iSeotia and Prince EdwanI Islainl) ments can chanjijje at will, 
 appointed by the ^overnor-<;eneral- 
 in-<ouncil. and removable (»nly by 
 the same on the a<ldivss of the tw(» 
 Inmses of parliament. Their .salaries 
 ami aHowances aiv fixed by the par- 
 liament of Canada. 
 
 Tlie provinces have jurisdiction 
 over the administraticni of justice in 
 a province, incliulinjf the constitu- 
 tion, maintenance and organization 
 of jtrovincial courts, both of civil 
 and criminal jurisdiction, and in- 
 cludins; the procedure in civil mat- 
 teiN in those courts. 
 
 The enactment and amentlment 
 (d" the criminal law rests with the 
 dominion parliament. 
 
 Similar powei-s in the states. 
 
 With the states. 
 
[iiorBixor] A STUDY IN a)MPAHATIVK POLITICS 
 
 Tlu' enat'tiMont and ameii<liiu'nt With tlu' .stati'H. 
 of all laws ix'latiiif; to property ami 
 
 13 
 
 civil rights vest with the provinces. 
 
 Thadk AM) Finance. 
 
 ("uHtoms and excise, trade hikI 
 coiniuerce. within exclusive jurisdic- 
 tion of dominion parliament. 
 
 Till' dominion tjovernment can 
 veto anv such unconstitutional law. 
 
 The |iower of direct ta.xation is 
 within the jurisdiction of both ilo- 
 minion parliament and provincial 
 leifislatuivs. tlie one for dominion 
 anil thi' other solely for provincial 
 purposes. 
 
 Both <lominion and provincial 
 governments have unltmite<l bor- 
 rowing; power under the authority 
 of jnirliament and legislatuivs. 
 
 ( 'ertain money subisidies paid an- 
 nually to the provinces for the sup- 
 port of theii' governments and legis- 
 latuivs. 
 
 TrADK and FtNANCK. 
 
 The parliament of the common- 
 wealth to have sole power to impost' 
 uniform duties of customs and ex- 
 cise, and to grant bounties upon 
 goods when it thinks it exju'dicnt. 
 .\s soon as such duties of customs 
 an' imposed, trade and intercourse 
 throughout the commonwealth. 
 whethei- by internal carriage or 
 oci'an navigation, to l»e fii'e. 
 
 The parliament of the common- 
 wealth nuiy annul any state law 
 interfering with the freedom of trade 
 or commerce lietween the <lit^'erent 
 parts of the commonwealth, or giv- 
 ing pn-feivnce to the ports of one 
 jKirt over those of another. 
 
 Diivct taxation may l>e imjxjsed 
 by th»' commonwealth and b}- each 
 state within its own limits — but the 
 power of taxation, when I'xercised 
 by the commonwealth, mu.st Ix' uni- 
 form. 
 
 Same is true of commonwealth 
 and .states. 
 
 The ivvenueof the connnonwealth 
 from customs antl other taxes is 
 appliitl in the first instance to the 
 Ijayment of the expenses of the 
 commonwealth and the surjjlus 
 ix'tuiMHil to the seveml states in pro- 
 portion to the amount of revenue 
 raised tliei-ein resijectively, subject 
 to certain special eonditio»s in the 
 •onstitution with respect to duties 
 of customs and excise anil the pro- 
 ceeds of direct taxes. 
 
jiiiv (loiiiinion lift disallow tlu' suiiir 
 
 14 ROYAL SOCIETY OF CANADA 
 
 Canada is liable for amount of tlu- 'Vhv ]»arliain('Ut nf ihc common 
 d»d»ls and liahilitit's of (he provinces wealth nniy consolidate or lake over 
 rxistinir at the tinu' of the union, state debts l)y i^eneral consent, bnt 
 \in(U'r the conditions and terms laid a state shall indt-innitV the eoinnion- 
 tlown in (lie constitution. wealth and the amount of interest 
 
 payable in respect to a debt shall be 
 deducti'd from its share of the sur- 
 plu.s revenue of the commonwealth. 
 
 JMi'KiuAL Control over Dom[nion Imperiaf. Control ovkr Ai stral- 
 
 J.KGISLATION. IAN LeoISLATION. 
 
 Hills may be resi-rved by the irov- Same, 
 ernor-ifcneral for the queen's pU-as- 
 
 \ii-e. and her majesty-in-conneil may State legislation is snbject to sini- 
 within two years after reeei])t of ilar power of disallowance by queen- 
 ■■ ■■ ' in-council. subject of course to the 
 
 provisions of tlu' constitution in 
 matters nixU-r the control of the 
 commonwealth, like customs duties, 
 and trade and commi'rce. 
 
 'i'lu' i;overnor-<;eneral may return 
 anv "law" presented to him for 
 the (pieens assent and suifuiest 
 amendments therein, and the houses 
 may (U-al with them as they think 
 Ht. 
 Recommendation of crown re- Sami'. 
 (uiircd bcfoiv initiation of a money 
 vote. 
 
 A MENDMENTS to the CONSTITl'TtON. AmE.NDMENT.S TO THE CoNSTITirTION. 
 
 Hv the imperial ])arliamcnt on The constitution cai\ be amended 
 an address of the hou.ses to the only by consent of a majority of 
 q^(jgii the senate and house of re])resenta- 
 
 tives. and with the a])proval of a 
 majority of the states. rei)resented 
 in conventions chosen by the electors 
 of the several .states ; if the pco]tle of 
 the states, who so approve, consti- 
 tute a majority of the people of the 
 cotnmonwealth, the pn)poscd amend- 
 ments shall be submitted to the 
 governor-general for the queen's 
 assent. 
 
 N<1 snch \trovision. 
 
[iioiRisoT] A STUDY IN COMPARATIVE POLITICS 
 
 IV. 
 
 18 
 
 IJrit'tly sliitcfl tin- stiviiii'tli »i| tin- constitution d'Caniida laritc'iy iv^t?* 
 on tlu' I'oiiowini; fonditiono : 
 
 1. An I'nmiu'i'ation of llu' n's]i('ctivi' iHiwi'i's of tin- fcdtTal and )»ro- 
 viiicial liovcrniucnt.x. with the rcsidnuin of power t'xitivssly placed in tiie 
 centra! or o^eiieral ii:overnnient. 
 
 2. A jiernianent and non-i-lective executive in the pei-son of tlie rcii^n- 
 iiiif sovereiijn of Kni^land wlio is represented hy a novernor-i^enenil. 
 appointed for rive or six yi-ars by tlie queen-in-conncil to presiik- ovi-r the 
 administration of ( 'antidian affairs, and consequently elevated ahove all 
 popular and provincial influences that iniijlit tend to make him less res- 
 jiected and useful in his hiiih position. 
 
 :{. Tile existence of i-es)Kinsiltleor parlianu'iitavy f^overnment after the 
 Kniilish moflel. 
 
 4. Tlie plaeini-- of tlie a|)poinlmenl ot' all Judiivs in the dominion 
 irovernmont. and tlu-ii- removal only on tiie address of tlie two lious<'s of 
 the dominion parliament, which address can only he passed aftei- full 
 inquiry hy a commitli-o into any charges formally laid aiiainst a judi^e. 
 
 5. 'I'he refereiict' to the courts of all cases of constitutional conflict, or 
 dtiulit hetween the Dominion and the Provinces that may arise undei- the 
 British constitutional law or tlu' Hritish North America Act of 1867. 
 
 Tl-ese are the fundamental principles on which the security and unitv 
 (d'the federal union of Canada rest, and I shall now procee<l to siiow 
 Itrictly the reasons for this emphatic (qtinion. 
 
 As the queen, or reii^niinj; sovereiifn. who is made the exi'cutive 
 authoritj' over Canada liy tlu' constitution, cannot he present in the 
 Dominion to disehari-'c her constitutional functions, the British Xortii 
 America Act jtrovides for the presence, as her representative, of a ii,-over- 
 nor-_«;eneral. who has in point of di,u;nity the jiosition. tiionu'li he has not 
 the title or all the rei-al attrihutes of a viceroy. Canadians have never 
 raised a claim, as .some of the Australian colonists have done, that they 
 should he always consulted in the choice l.y the sovereii.-n of this imjiort- 
 ant i.uhlic fuiietionaiy. nor have Canadians over demanded the privilciro 
 of eleetini,^ from their own statesmen their gov.,rnor-,i.eneral. as was 
 actually |)roposed in the Australian convention. 
 
 .Sir Geoi-i^e (Jri'y of New Zealand, whose democratic tendencies were 
 constantly en evidence in the del.ates .,f the convention, moved an amend- 
 ment with the ohject of testiui-- the fl-elino- as to an elective -overnor. but 
 it was supported by only three votes against rive in the negative. Sir 
 Joim Downer, wluw speeches were always distinguished by much consti- 
 tutional knowledge and statesmanlike breadth of view, said with truth: 
 "I would ask in what iK.sition would the governor-general be when he is 
 elected ? If he is elected by the voice of the jjcople, does the hon. gentle- 
 
16 
 
 ROYAL SOCIETY nF TAX A DA 
 
 man asM-rt tliat lii>toiy will not iv|x-sit ilM-lf. ami lliat tin- :r<»V!'rnnr- 
 ^fnenil will not nssnnu' a position xmictliin^ liki- that <»f tin- |in-!](i(lent ot" 
 the l'nit«H| Stat«'s. so tliat tin* ny aniMn:;«.j |Militical icirtii's will Ik' • VVlio 
 is for tin- pivsident. anti who is air.iinst him? '' It wouM U- assunNlly 
 an unfortiinatf thiri; lor Aiistnilia. as wi-ll as lor <'ana<la. wi'ii* tlit* fjov- 
 i'rn»M*-j;t'nt'ralshi|> to U-fonu* thr ohji-rt <>| th»* contentions of political 
 parties an<l factions. like the piv>i»U'n«-y or ifovenuM>hips of the Tnite^l 
 Stales. 
 
 TIm' elective principle has never l»een applieil in the constitutional 
 practice of Caiiai la to administnitive, executive or jmlicial ofticei-s — despite 
 their elostMieiirhhourluKxl to the L'nite«l Stati-s. — but has Un-n confined, 
 in acconhuK-e with the Knirlish system whi«-li ohtains throuifhont the 
 enipiiv. to repivsentatives in parliament or in the munici]ial «ouncil.s of 
 the country. Consequently < 'anadians have Iuhmi spaix*<l tiie excitement 
 and expense that have followe<l the adoption of i he elective princi]ile in the 
 United States, where the president of the nation ami the ;rovcrnoi> of 
 the forty-four states are electe<l for short terms of office — the former for 
 four years and the latter from one to four yeai>. IJemoved from all 
 political influences, since hedfH's not owe hisap|K>intment to a«y Canadian 
 party, exercisin/jf his executive poweiN under the a<lvice of a constitJi- 
 tional ministry who represent »hc majority in the lei;islatuiv. representinij 
 what Magehot would call the diirnitie«l part of the constitution, the 
 j^overnor-ijeneral is able to evoke the i\'>|»ect and confidence of all clas.ses 
 of the people, and not only to exercise a decide«l influence on the adminis- 
 tnition of public att'aiiN by consultation with his ministei-s. under the 
 unwritlcu but well undeiNtoo<l conventions and ndes of the constitution, 
 but also to elevate the tone of p .blic o]>inion by his pulilic sjH'cches on 
 those numerous occasions when he is called uimju to athlivss audiences on 
 questions of genenil import ivlatini; to etiucation. literal un- and science, 
 and other matters not mix^Ml up witli party jiolitics but having an inti- 
 mate coniKH-tion witli the ilevelopment and pi-osj»erity of the country. 
 liy his hospitalities as head of Canadian soi-iety. he is able to bring men of 
 :dl ])olitical parties together in so«-ial intercom's**, and <lo much to assuage 
 the bitterness of faction in a countiy wheiv tlie cunvnt sets so steadily 
 towanis democnuy. Weiv the governor-geneml elected, he «-ould not 
 }»ossibly occu])v the same vantage ground. >ince lie would Ik- necessarily 
 the leader of his party, like an Anieri<-:iu pivsident — the subject of the 
 sharp and unfair criticism of his politic:il opfionents. He would again 
 occupy the position the govemor-genenil pr.n-ti«?dly held for over fifty 
 yeai"s in Canadian political historj- befoit the establisliment of i-esponsible 
 government, when he was too often personally brought into the arena of 
 political discussions and conflict, and made a target of the abuse of the 
 popular leadei"s. since there were no ministers sitting in ]>arliament to 
 assume full responsibility for the acts of the executive authority. 
 
[bourinot] 
 
 A STUDY IN rOMPAHATIVE POLITICS 
 
 17 
 
 Tilt' liisloi-v of tlu' old tliiiiwii t-olonit'.s is full ol' iiist!iii<-i> i>t tin- 
 iin]Ki|)ulanty of roval i^ovcriiOi's, who woif i-oiistantly in aniairoiii>iii to 
 tlu" |K'0|i|(''s i^'pn'si'utativcs on a«*«'ount of their arfoi^ant cxfrcis*' ott-xfcii- 
 tive powi-r anil intrrfi-ivnc*' with stfictly ••ol«)iiial aH'aiis. aixl wlm iliil 
 nuu-h consccjni'ntly to civat*' that sitntinicnt ati:ainst thr paivnl state \vhi*-li 
 eventually leil to se|)ai'ation. In ('ana<la. tot), the eonstaiit int»'rfei"eii(c ot' 
 tile ini|M'rial <;overnnieiit — i-eally of a few (itlicials in l)ownini;-sl i-eei — in 
 luutters whieh slmuM have lieen settled in Canada, the uhstinaey and want 
 of judgment on tin- part of scnne •governors, the an'ou;anee and >elti>lniess 
 of ottieials who owwl no ivsponsihility t<» the leujis'atuii', the indiseit-tions 
 of the appointed legislative councils, the iijnoi'ini; «.f the just claims of the 
 jK'oples ii'presi-ntatives to control the puhlic moneys and expenditures, 
 le<l also to a popular out hix'ak. which has heen i^eiierally calU-d a ifhellion. 
 althoui^h it never assumed very lar.ije proportions, even in the Ki-cuch pro- 
 vince of Lower Canada, hut was eontined to a very liiniltd area and an 
 insignitieant faction, whilst in the Kmrlish provinci- of I'pper ('anada it 
 was almost conti-mptible as res[»ectsthe standini; and numherof the |K'opie 
 iiamediatoly eiiijcaiced in it. 
 
 V. 
 
 It was the concession of res)ionsili|c <r(»vernnieni. in the period fivjin 
 1840 to 1S54. to theprovinees that now coUi pose the J)ominion of Canada. 
 that r»'lieved the Canadians of tlie personal rule of irnvernors and otticiuN. 
 and removed all reason for the disconti-nt that leil to the ill-advised 
 insurrections ot' 1837 and 1S3S. It was pat-, iiud tcovernmeiit exi'i'cisi'd too 
 often without judifnient or knowledi^e of the wishes of tlu- colonial com- 
 munities in America, that led to the imlependenci' (d' the old cojonio. as 
 well as to the Camidian outhreaks of over half a century ai^o. it is local 
 feelf-governna-nt. in tlu' fullest si<;nificance of the term, that has heen for 
 fifty years the source of the content and prosiwrity of the Camnlian 
 people. From 1792. when the two provincesof U|»i»er and Lower ( 'anaila 
 were formed out of the old jtrovince of Quehet . that cxtemh'd from the 
 Gulf of St. Luwivnc*' to the western lakes. down to 1841. when these two 
 sections weiv re-united under one <;overnmenf in accor<lance with the 
 i-ecominendation of Loitl Durham, the puhlic men of Canada leai-ned 
 numy valuable political lessons from the very trials ami strui;u:li's of tin- 
 country for larger political rights. When responsible government was 
 at last conceded by England, it had become a necessity of the political 
 situntion in tlie pntvinces ; the public men hu<l Ikiiu fully educated in its 
 principles and weiv ix'ady to work them out witli as much intelligence as 
 if they liad Ix'on tatight in the legislative halls of the paivnt state. Srop 
 by step the provinces were relieved from all those commercial and political 
 restrictions which the imiKiial government had regarded as necessaiy to 
 "^ Sec. II., 1895. 2. 
 
18 
 
 ROYAL 80CIKTY OF CANADA 
 
 a toii<lili<iii of colonial )Mi|)ila^(>. until l>v a quarter of a<rnturv after llw 
 iini«»n «)f 1841. tlu'se coniniittct's possi'.sHfd full control ovi-i* their tnulo und 
 coninuTc*'. and wcix' al>lo even to entei" into a treat}' of ivciprocity with 
 the I'nitetl States that provided for a iwi.- interciiani;e of the natunil 
 prodiK'ts of tlie n-spective countries, 'riie customs, t lie jtost otti(t>s. ami 
 other niatttM-s weiv liandiHJ over to the jurisdiction of the provinces, and 
 tin- Kni^lish j^overnnient excrcis«'d only the supervision over Canada that 
 is th»' constitutional and lu'cessary sequence of imperial supivinacy. 
 When the leijislativ*' union of 1841 hecani*' une(|ual to the political con- 
 ditions of the Canadas. and it was expedient to atl'ord greater faeilitii*!* 
 for commercial intercoui*se k'tween the ))rovinces. <;iv«' unity to the 
 isolated British American communities that stretched from the Atlantic 
 to Lake Superior, estahlish additional guarantees for the protection of 
 the lij^hts and privilcices of the Kivnch Canadian nationality, and at the 
 same time ei-ect a harrier aijjainst the amhition of the <;reat federal ivpul»- 
 lic that had just suIhIuciI the south, the .statesmen of Hritish America 
 Ussend)led in conference and i^ave expression to the pojiular si-ntiment in 
 favour of a lari^er spheiv of political action. They succci-ded in forniimj^ 
 a fe<leral union, whidi oriu;inally consisted of only four ])rovinces — Nova 
 Scotia. New Brunswick, Ontari(»and l^ucU'c. — hut extended its authority, 
 in the coui-se of a few 3'ears, over the fertile island of Prince Kdwani in 
 the east, addetl an immense territoiy in the northwest, out of which 
 was immediately carved a new jirovince, and tinally reached the Pacitic 
 shores b}' the addition of British Columbia, with its stupendous ninge of 
 mountains, and the picturesque island of Vancouver, placed as a sentinel 
 to truard tile approaches to the western shores of a I>omini«ui whose laws 
 are executed over nearly half the continent. 
 
 r 
 
 //-f^vw--' 
 
 i^ 
 
 ^ 
 
 The federal union was the inevitable sequence of the self-j^overnnient 
 tli:it was the immediate result of the liberal colonial ]»olicy adopted 
 towards the colonies .soon after the present queen ascended the thi-one, 
 and with which the names of Durham, Rus.sell, (irey and (iladstone must 
 be always as.sociated in the history of the empire. The constitution of 
 Canada, which is known as the British North America Act of 1S67 — 
 embodying the resolutions of the Quebec conference of 1864 — only 
 enlarged the area of ])olitical sovereignty of the provinces, and gave 
 greater scope to tlieir political energy, already stimulated for years pre- 
 viously by the influence of responsible government. The federal consti- 
 tution has left the provinces in the pos.session of the essential features of 
 that local government which they had fairly won from the parent state 
 since Acadia and Canada were wrested from Fi'ance, and re])re.sentative 
 i!i8titutions were formally established throughout British North America 
 
— [noi'RiNor] 
 
 A STl'DY IX COMPAUATIVE Pt)LITIC"S 
 
 19 
 
 In every iiroviiu-f tlu-iv is n lieutonaiit-govenior a|>|i(>inti'<| hy tin- 
 dominion jjfovfrnnu-nt. wlio, in regard to this (dHocr, ori-upies that ivlu- 
 tion to tlu* jirovinces 'a hifh was fornu'rly held hy the imperial authorities. 
 This officer is a«'vised hy an executive council chosen, as lor forty yeaiN 
 previously, from th majority of the house of assembly, and only holding 
 office while they retain the confidence «>f the people's representatives. 
 In the niaioritv of the provinces there is oidv one house — tlie elected 
 assemhly. The legislative ccmncils that assisteil hi-fore ISHT have been 
 altolished in all the legislatures except those of (Quebec and Xova Scotia, 
 and ill the latter the exam|»le of the majority will soon be followed. 
 The upper houses iiad become to a great extent expensive and almost 
 useless bodies, since they were the creation of the respective governments 
 of the day — who too often considered only the claims of j)arty in their 
 api)ointments — with no responsibility to the people, rarely initiated im- 
 portant legislation, and had no legislative control over the pui-se strings 
 of the provinces, and, at the best, only revised the legislation of the 
 lower house in a perfunctory sort of way. It is qnestionabie. however, 
 whether it would not have Itecn wiser, in view of the hasty legislati<»n 
 that may be expected fr«»m such purely democratic bodies as the lower 
 houses are becoming under the influence of an extended franchise — man- 
 hood franchise existing in nearly all tiie provinces, including the great 
 Knglish jtrovince of Ontario — to bave continueil the English bicameral 
 system, which still exists in the great majority ot' jtarlianientarv bodies 
 throughout the world.' and which even the republican neighlH)ur8 of 
 Canada have insisted on, in every stage of their constitutional develop- 
 ment, as necessary to the legislative machinery of the nation anid of every 
 state of the union. It would have l>een much l>etter to have created an 
 upper house, which would be partly elected bj- the people and jiartly 
 appointed l)y the crown, which would be fairly representative of the 
 wealth, industry and culture of the country — the last being insured by 
 university re|)resentation. 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 breuk- 
 
 ' " The tiiciiiiieral system has met the approval of most of the leading; political 
 writers [Victor Tiszot, " I'liknown Hunjiary,'' I. l:W|. and is realized in practice •)y 
 the legislatures of the princi|Nil countries. LeKislative bodies with a single chaniln'r 
 are eomnion in cities, in departmental, provincial and county councils. Many of 
 the smaller American cities, and some of the larger, have a council of one chandler, 
 but every American state legislature has two houses. Tite unicamerTl Inidies fall 
 Into three or four main groups : the |>arliaments of the minor states of southeastern 
 Europe, Servia, Bulgaria and Greece: the congresses of the states of Central 
 America, Nicaragua excepted. comjKJse another group : the landtags of the Austrian 
 crown lands are one-chaudiered, and so are nearly all the diets of the nunor (iernian 
 states, excepting those of the free cities." See " Tlie Representative As.senddies of 
 To-Day, " by E. K. Alden; Johns Hopkins University Studies, WKi, 
 
so 
 
 Royal 6(k iety of can a ha 
 
 watcri* jigniiiHt uusouiul li-gislation uiul tliiiiu'ricul srlieine?*. Anil \va»«. 
 Iiowover. tlK*si* sei-uiulrliamU'vsliad lust ;urroun<l in tlii> |Mi))lic estimation 
 tlir<nij;li tlioir very inln-'n'iit woakiu'ss. ivprowntin^ a> tliey «li<l. t<"» 
 ol'tfii, int'ivly tin* favMurs ofgovfrniiit'iit and tlie di'mandn <»f party, and 
 n<H many words ot'dissont wcn-lifard again8t tlu'iraltolition. No doiiht. 
 ei-onomical conHidorations also largely j)rovailt'<l \vli«n it was a quostion 
 nfd<»ing away witli tliese i-lianilx.'i'H. No doiiht, too, when thejw lNKlit»H 
 disappean'd from tlu' |Hilitical conHtitiitions of the |»ri>vin«'t'>*. some ini- 
 jiortance was given t»» tin- suggi'stion that the v«'to given hy the federal 
 hiw to the dominion government over the legislation of the provinces. 
 did away to a large extent with tho neeoHHity for a legislative council, for 
 its raison (litre, if one may so express it. Hut. in the pnietical working 
 of the federal union, the vehement and jtersistent assertion of" |>rovincial 
 rights,' and the general tr«'nd of the decisions of the courts to whom 
 questions of Jurisdiction have been i-eferred. have teiuh'd nither to i^ive 
 a weight and power to the provincial communities that was ni»t con- 
 tem|»lated by the leading architects of the federal framework : cer- 
 tainly not by the late Sir .lohn Macdonald. wiio believed in a stnmg 
 central government, dominating the legislation and even tlie administni- 
 tion of the provinces, whenever necessary for reasons of urgent dominion 
 policy. Hut the powers, granted in t'Xpress terms or liy neces.sary im- 
 plication tf> the provincial authorities, take so wide a range, and tlie 
 several provincial governments, from the inception of the union, have 
 been so a.ssertive of what they consider their constitutional right.*, that 
 it has not been jiossible t(» minimise their position in the fcdenition. As 
 it is now. the irovernments of the several i>rovinces legislate on subjects 
 which, though local and provincial in their nature, are intimately con- 
 nected with the rights of property, and all those ])ei-sonal and public 
 interests that touch men and women most nearly in all the relations of 
 life, — far more so, necessarily, than dominion legislation, as a rule. In 
 view of such a condition of things, 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, will be strenuously 
 resisted by a province. In view thon of the position of the veto — a sub- 
 ject to wiiich 1 shall again refer — there are not a few thinkei-s who regret 
 that there are not still in all the provinces an influential upper house, 
 able, from the nature of its constitution and the character and ability of 
 its ;?er50wne/. to initiate legislation and exercise useful control over the 
 acts of a lower house now perfectly untrammelled, except by the courts, 
 when legislation comes before them in due course of law. The conse- 
 quences of the present system must soon show themselves one way or 
 the other. I admit that these fears may be proved to have no foundation 
 
[bovhimit] 
 
 A STUDY IN rOMI'ARATIVE I-OLITK S 
 
 21 
 
 AH the union works itst*lt' out. (hi tlu' f'uoi- ol' it. Iiowovor. tlioro is a 
 lati'iit |H'nl ill UHini;lecliunilK'r,i'l»'flt'i| uixlor most ilemocnitic cotidilions, 
 liable to fluituation with fvorv donionslration of tin- |io])iilai' will, and 
 lelt without that opportunity I'oi- calm. dolil>t'rat»' M-c-ond ihouurhl that a 
 8f.'oond idiainlior of high cdiann-tiT would i;ivo at those critical times 
 which must occur in the history of every people. 
 
 VII 
 
 In the constitution of th«' dominion ;i;ovcrnnu'nl. howcvci-. the British 
 North America Act has adhei-ed t<» the iin«'s nf the Hritish sysl«'n). since it 
 provides for an ailvisoiy council of the i^ovenior-Lfcnei'al, chos«'n from 
 thosi' nu'mlH'iN of the privy council of Canada who have the <'ontidence of 
 the house of commons ; for a senate of nearly eii;hty memhei's. appointed 
 by the ci-own from the dirteivnt provinces; for a hous*- of commons of 
 two hundn'd and tifte»'n mendK'iN. elected hy the jieoj^le of the diff«'ivnt 
 sections on a liasis of population, and on the condition that the numlxtr of 
 inemlxM-s iriven to (^ut'lH-c by the constitutional act shall not Ih> disttirlH'<l. 
 Tiie growth of democratic principles is seen in the very lilteral dominii>n 
 fniiu'hise. on the very thii'shold of manluxNl suffrage, with limitations of 
 citizenshi)) ami ivsidence. The mcndn-rs of the senate must have a very 
 small qualification of personal and ii-al projH'rtv. and aii- appointetl for 
 life. The ivnmrkably long tenuiv <d' ]tower enjtned by the Conservative 
 party — twenty-four yeai-s since 186" — has enabled it to fill the upper houst» 
 with a very large numerical majority of its own friends; and this fact, 
 taken in connection with certain eU-ment.s of weakness iidi«>rent in a (diam- 
 U-r which has none of the ancient privileges or prestige of a bouse of lords^. 
 long associated with the names of givat statesmen and the n\emorable 
 events of Knglish history, has in the couinc of years created an agitation 
 among the Libenil party for radical changes in its constitution which will 
 bring it more in harmony with the people, and givi- it a moiv repivsent- 
 ative character, and at the same time increase its usefulness. This agitation 
 has even ])roceeded .so far as to demand the abolition of the house, but it is 
 questionable if this h\oven>"n' is sustained to any gix-at extent by the intel- 
 ligence of the country. On the contrary, public oi»inion. so far a.s it has 
 manifested itself, favours flu continuation of tin- second (duimber, on con- 
 ditions of a lai'ger usefulness, in pivfei-ence to giving complete fi-eedom to 
 the democratic tendencies of an elective body — tendencies not so apparent 
 at present, but likely to show themselves with the influx of a large foreign 
 population and the adoption (»f univei-sal suft'nige. which is looming up in 
 the near futuiv. The senate, as at pivsent composi'fl. contains many men 
 of ability, and cannot Ix' sjiid to dis|tlay a spirit of faction, despite its piv- 
 ponderance of one pai'ty, while for two years back its K-aders have stien 
 the necessity for initiating in this chandH.'r a huge number of important 
 
ROYAL SOCIETY OF CANAlJA , 
 
 puMic iiiniHiiii's. 'I'iir iiKivfiiii'iit torn n-iiiiNU>|liiii; o|' tlit> st>iin((>. Iiow- 
 ovt'r, huH not yet liikfii any dcflnilf nIiu|k'. ami ta n«»l lik»'ly to tlo so no 
 |on^ as tlic pH'srnt ( 'nn-crvalivi- i^ovt-rni'ii-nt ivnuiins in powt'i'. allliiiui;li 
 tlic writer is one of lliov \vIm li«-ii«-v«- that it onyflil mmhi to lie sln'n;;tli- 
 oiumI liy ^iviny it a \>.'>\v ii'pn«s«'ntativ«' i-hanictrr. on sonu' siicli plan as 
 has Ihu'Ii sti^^i'stod in I lit- cax' of l«'ni?»lativi' touncils in tin* pi'ovincvs. Ot 
 coui-s*' no conslilniioiial iliant;«'s tan U- niadt- in tin- liody »'xc«'pt on an 
 udilivsH ot" llu' two lionM'N to ilu' trown. Tlu' liritisli Xortli Anu'fica Act 
 d<M'H not allow an nnrcsti'icti'd UHt> o| tin* royal prcro<;ativf in cusi- of a 
 (U-adlock liclwi'cii tin- two Ikmis^'s. sinrt- it providi's for tlu' ap|»ointin«'nt of' 
 only six sonalors at tin* most. Wlirn. >onii' yraiN aijo. tin- LiU'ral j^ovorn- 
 int'nt attcniplfti to inaUc nsc of this tonstitntional provision, lln-y wcrt- 
 wlinktMl l»y iIh' inipt-rial antlioritics on tin- irrininil that tlu^ »ircnnistant«'s 
 did not justify an addition to tin' scnair at that tinx-. With thi« prece- 
 dent before them, it will be always difticult fc»r a government to increase" 
 their strength in this wa}'. 
 
 With experience of the Cana<lian senate ami their own legislative 
 councils betove them the framers of the jiroposed Australian federation 
 have followed the example of the United States and provided for a 
 Semite whose members are elected for six years by the legislatures of the 
 colonies — or parliaments of the Australian states, as they are more am- 
 bitiously called in the bill. The constitutional provisions that govern 
 the house of lords, and the Canadian senate with respect to the initiation 
 or amendment of taxation, and annual appropriation bills are fulh' 
 recognized in the Australian draft. Some enlargement of power is, 
 however, given to the new house in the case of money bills and it is per- 
 mitted 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. This practice seems to have been followed 
 for some years in South Australia, but in introducing it into their i)ro- 
 posed constitution the convention appears to have been largely influenced 
 by a hope that it would give the upper house greater power and also 
 some resemblance to the senate of the Tnited 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 com- 
 parisons with the senate of an independent federal republic. 
 
 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 consei'vativo in its legisla- 
 
 C 
 
I 
 
 [DOIRIS..T] A STIMJY IN ( OMI'AHATIVE PDUTIfS 
 
 tiun tliuii u inort^ (Icinocratir low«<i' lioiiMt* elfctcd on u mIioi'I term of thi't-it 
 yearn — one moir timn the lioiisc of n'pn'Hontiitivt'H of congrt'Hs, and two 
 leHH tliaii tin' lioiiMt' of coiiiinoiis of ('aiiuda. Of eourHO. soriu' of tin* Aus- 
 tralian colonit'M Itavo lm<l «'X|K'nt'ncv of an t'lcctivf uppiM- Iioiiho, and it is 
 Komcwlmt cnriouH that wlnlu tlun- continno tluit nvNtuni in the |>ro|ioHi>(l 
 I'uderal union. tht> Canadians havo roturned to an appoint»<l house as pn-- 
 fi'ral>Ii^ to tilt' oni' they hi I heforo lH(i7 — t'v«>ii so thorough a radical as 
 tilt' lati' (leorgi' Urown, thon leader of the Tiiberui party, earnestly urged 
 the change in the (^nehee convention. WIh'U we consider the character 
 of the agitation against upper houses, wesee that, in the nature of things, 
 democracy is ever strivini; to remove what it considers harrit'rs in the 
 way ot' its powers and will. An upper house, under modern politiciil 
 conditions. i> likely to he unpopular with the radical and suciali-(iv' 
 elements of .society, unless it iselective. As (he Australians are ohvioui^ly 
 admirers of the American federal constitution, from which they copy 
 the ctmstitution of their upper chamher, we direct tlu'ir attention to the 
 fact that an agitation has already comirwnctui and made much headway 
 in tiie I'nited States, to change the present indirect method of electing 
 senators, and to give their election directly to the |)eople. It says >ome- 
 thing, however, for the conservative anil Knglish instincts of the Aus- 
 tralians that they have not yielded to the full demamls of democrac\ . 
 but have reetjgnized the necessity »f an upper house in any safe system 
 of parliamentary government. 
 
 V^ 
 
 II. 
 
 We see accordingly in the dt)minion and provincial constitutions the 
 leading principles of the Knglish system — a permanent executive, re- 
 sponsible ministers, and a parliament or legislature. The central govern- 
 ment follows directly the Hnglish model by continuing the upper 
 house, but the majority of the provinces vary from all other countries of 
 Hnglish institutions by abolishing the legislative councils. In the enum- 
 eration of the legislative powers respectively given to the dominion and 
 provincial legislatures, an etlbrt was made to avoid the conflicts of juris- 
 diction that so frequently arose between the national and state govern- 
 ments of the federal republic. In the first place we have a recapitulation 
 of those general or national powers that properly itelong to a central 
 authority, such as customs and t'X'-ise duties, regulation of trade and 
 commerce, militia and defence, post office, banking and coinage, railways 
 and public works " for the general advantage," navigation and shipping, 
 naturalization and aliens, coast service, fisheries, weights and measures, 
 marriage and divorce, penitentiaries, criminal law, census and statistics. 
 On the other hand, the provinces have retained control over municipal 
 institutions, public lands, local works and undertakings, incorporation 
 
24 
 
 ROYAL SOCIETY OF CANADA 
 
 L- 
 
 of companies with provincial olyects, property and civil rights, adminis- 
 tration of justice, and generally *■ all mattei-s of a merely local and pri- 
 vate nature in the province."' It will be remembered that the national 
 or general government of the United Stjites in alone one of enumerated 
 powers, whilst the several states have exprossly reserved to them the 
 residuum ot power not in express terms or by necessary implication taken 
 away from them. In their anxiety to avoid the sectional and state 
 dit!iculties that arose from these verj' general provisions and to 
 sti'engthen by constitutional enactment the general government of the 
 Dominion, the framers of the British North America Act placed the 
 residuar\' power in the parliament of Canada — in the words of the law 
 that parliament is allowed '' to make laws for the peace, order and good 
 goveriimen; of Canada in r'ilalion to all matters not coming within the 
 cla.sses of subjects by this act assigned exclusively to the legislatui-es of 
 the provinces.'' 
 
 Hut despite the earnest etfort that was made by the Canadians to 
 prevent troublesome questions of jurisdiction too constantly arising 
 1 let ween the general and provincial governments, the courts have been 
 steadily occupied for a quarter of a centiiry in adjusting the numerous 
 constitutional disputes that ha\e arisen in due course of law under the 
 union act. Five large octavo volumes of nearly four thousand pages 
 now contain the decisions that have been recorded by the judicial com- 
 mittee ot the privy council of England and the courts of Canada. Dis- 
 cussions are frequently arising in the legislative bodies on the varied 
 interpretation that can be given to the constitution on these verj' points 
 of ci>nstitutional procedure and jurisdiction which the framers of the 
 federal union thought they had enumerated with great care. Hut it is 
 in this very reference to the courts that the strength of a written instru 
 ment of federal government lies. In Canada, as in all other countries 
 inlicriting Knglish law. there is that great resi)ect for the judiciary which 
 enables the people to accept its decisions when they would look with sus- 
 jiicion on the acts of purel}- political bodies. We need look only to the 
 experience of the United States to test the value of judicial opinions on 
 constitutional issues. The following renuirks of a very judicious writer, 
 Professor Dicey,' may be appro})riately quoted in this connection : 
 
 '• The main reason why the United States have carried out the fed- 
 eral system with unqualitied success is that the people of the union are 
 more thoroughly imbued with constitutional ideas than any other exist- 
 ing nation. Constitutional questions arising out of either the constitu- 
 tions of the several states or the articles of the fedei'al con.stitution are 
 of daily occurrence and constantly occup^'the courts. Hence the people 
 become a people of constitutionalists ;1 and mattere which excite the 
 
 "Thi" Law of the Constitution," Urd ed., p. 107. 
 
1 
 
 [bourinot] 
 
 A STUDY IN COMPARATIVE POLITICS 
 
 25 
 
 strongest possilde feeling — as, for instance, the right of the Chinese to 
 settle in the eountiy — are determined by the judicial bench, and the 
 decision of the bench is acquiesced in by the people. This acquiescence 
 or submission is due to the Americans inheriting the legal notions of the 
 common law ; that is, of the most legal system of law, if the expression 
 mav be allowed, in the world." 
 
 These remarks a)i])ly with full force to the Canadian people, who 
 look to the courts for the only satisfactory solution of many difficulties 
 in the working of their constitution. This judicial interpretation of 
 written constitutions is not now in the experience of British countries, 
 but is coincident with the civation of colonies or provinces in America. 
 The privy council of England was always the supreme court of appeal 
 for ihe dependencies of the crown, to whom could be referred those 
 questions of law that arose in the old colonies as to the construction to 
 be put on their charters of government. An American writer' has very 
 clearly explained, in the following paragraph, the principles on which 
 the courts have always interpreted written instruments or charters of 
 government : 
 
 " In deciding constitutional questions, the supreme court [of the 
 United States, and Canada as well] interprets the law in accordance 
 with principles that have long governed the courts of pjngland. For 
 "when an English judge finds conflict between an act of parliament and a 
 judicial decision, he sets aside the decision, as of an authority inferior to 
 that of the act ; and if two parliamentary acts conflict, the earlier is set 
 aside as supei-seded l)y the later one,-^— the court interpreting the law 
 simply by determining what is law as distinguished from what i$ not. 
 The range of this English usage was somewhat amplified in the colonies, 
 owing to the fact that, instead of parliament, the colonial courts had 
 legislatures to deal with, which acted, in most instances, under written 
 charters limiting their powers, as also under the general domination of the 
 home government. The colonial judiciaiy did not hesitate to adjudge a 
 local statute invalid if its enactment could be shown to have exceeded 
 powers conferred by charter ; and the privy council, in the capacity of a 
 supreme court for the colonies, decided in like manner conflicts between 
 laws. When state constitutions succeeded to the chartei"s. the process was 
 continued by the state courts in cases showing conflicts between statutes 
 and the new constitutions judicially interpreted. The national govern- 
 ment, with a constitution of its own, created an element of superior law, 
 in conflict with which not only state but national enactments of lesser 
 authority are nullified. All that the judiciary does in England, and all 
 that it does in the states, and in the courts of the United States [and we 
 may add Canada], is to uphold the authority of what it decides to be 
 
 
 f --v. 
 
 ' Dr. Stevens'H "Sources of the Constitution of the United States," pp. 191, 11)2. 
 
26 ROYAL SOCIETY OF CANADA 
 
 the higlior law, as against all lesser laws or jadieial decisions. What, 
 therefore, has been (supposed to be the most unique feature of the 
 American supreme court, is really only another adaptation from the 
 past, and rests upon colonial and English precedents." 
 
 IX. 
 
 Cases involving constitutional questions may be tried in any of the 
 suixunor courts of the provinces, with the right of appeal to the federal 
 supreme court, and finally, under certain limitations, to the Knglish 
 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, thoagh there have been occa- 
 sions when tha lay, and even the legal mind, has l»een a little perplexed 
 by somewhat contradictory deci-sions, arising from the difticulty of the 
 Judges to comprehend what are largely provincial issues. For instance, 
 in cases relating to the sale of intoxicating liquors, the jurisdiction was 
 at first declared to be in the dominion government, but subsequentlj' in 
 the provincial authorities, with the obvious result of leaving a trouble- 
 some issue more complicated than ever. The tendency of the judgments 
 of the courts has been towards strengthening the provincial entities and 
 minimizing, to a certain extent, the powers of the central authorities. 
 For instance, the judicial committee have gone so far as to la}' it down 
 most emphatically : 
 
 '"That when the imperial parliament gave tlie provincial legislatures 
 exclusive authority to make laws on 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 92, 
 as the imperial parliament, in the plenitude of its power, possesses and 
 could bestow." 
 
 The consequence has been the very opposite of the decisions;, as a 
 wliolc. of the supreme court of the United States, where the Uite Chief 
 .luslice Mai-shall did much to mould the con.stitution in the direction of 
 enlarging the scopeof the powers expressly given to the national govern- 
 ment. It is a question whether the judicial committee, however ably 
 constituted, would not find its usefulness increased bj' the membership 
 of a gi"eat 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 European judges 
 who act within the narrow path traced for them by ordinary statutes." ' 
 
 ' Professor Bryce in " The American Coninionwealtli," vol. 2, p. 1. Since tliis 
 pas-sime was written, tlie imperial p irliament lias pa.s.secl an act providing for the 
 iippointnuMit of colonial judges to the committee, hut the colonies must provide sal- 
 
[bouiuxot] 
 
 A ntudy in comparative politics 
 
 27 
 
 As long as this imperial court is composed of men of the hi^'host 
 leai-ning — and it is verj' rarely this is not tiie ease — 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 a serious mistake to asl< the 
 crown to give up entireh' the exercise <tf a prerogative so clearly in tiit^ 
 inteivsts of the empire at large. To quote the apt words of Sir Jlenry 
 Wrixon : 
 
 "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 blaclc 
 or white, has a right of appeal to his sovereign. That is a grand right 
 and a grand link for the whole of the British empire. Hut it is more 
 than that. It is not, as might be considered, a mere question of senti- 
 ment, although I may say that .sentiment goes far to make up 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 woi'ds we have given in italics are unanswerable, and it is unfor- 
 tunate, we think, that such arguments did not pi-evail in the convention 
 to the fullest extent. That body in this, as in other matters, appears to 
 have been largely influenced by a do.sire 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 common- 
 wealth, or of any state, or any other part of the queen's dominions aiv 
 concerned.'' Probably, however, before the c<»nstitution is finally adopted 
 all limitations of this exercise of the royal prerogative in the dependency 
 will lie n'moved.~/ 
 
 When we consider the influence of the courts on the Canadian fed- 
 eral union we can see the wisdom of the provision which places the 
 appointment, [)avment and removal of the federal as well as provincial 
 judges in the hands of the dominion government. It may be said, indeed, 
 that, by the nature of their appointment and pernumency of tenure, all 
 the judges of Canada are practically federal, though the organization of 
 the provincial courts rests with the provincial governments. The con- 
 sequence is. the provincial judges are removed from all the influences 
 that might weaken them were they mere pre '^ial appointments. In 
 the United States the constitution provide^ i m .adend judges, whose 
 appointments rest with the president and sena. For man}' years after 
 
 arles adequate to the posilioii, a fact likely to creat« a ditticulty since the amount 
 required will he so far heyond what is paid colonial judges. On the other hand the 
 advantsKe to the dependencies will Ik* so great that Ijoth Canada and Australia 
 should move in the matter. 
 
 / 
 
 /' 
 
 ui 
 
28 ROYAL SOCIBTY OF CANADA 
 
 * tho formation of the states, tlie appointment of the state judiciary rested 
 with the governors or the lejj;ishitui\>s, or both conjointly, an<l only one 
 state. Georj^ia. made them elective. It was the state of New York, amony; 
 thi' older states, that ivally led the way to the election of all judicial 
 otticers, from the hi<^hest to the lowest, throuifhout the union. At the 
 present time, out of the forty-four states, thirty elect the judtjes by a 
 popular vote. The federal judiciar}- has always held a far higher position 
 in the estimation of the intelligence of the country than the elective judi- 
 ciary of the states, since its mode of appointment, ])ermanency of tenure 
 and larger scope of duties have given it a positive strength and dignity 
 that the latter, under its inherent conditions of wi^aUness. cannot possible- 
 possess. 
 
 It is but just, however, to add that flagrant cases of corruption or 
 impropriety are remarkably rare among the state judiciary despite its 
 election by political and popular influences ; the most shameful instai -es 
 having occurred in the city of New York, where the party machine, 
 under the Tammany control, has always exercised a baneful influence on 
 public morals. The evils of the elective system would have undoubtedly 
 been far greater had not the good sense of the people eventually recog- 
 nized the necessity of giving a longer tenure of office to the judges, and 
 re-electing them when they have discharged their duties with fidelity. 
 At present the terms of office average ten years throughout the union, a 
 number of the states having extended them to fifteen, fourteen and 
 twelve years. Swift retribution has generally followed such flagrant 
 examples of corruption as those of Barnard. Cardozo and McCunn in 
 New York, under the Tweed regime ; and when Judge Afaynard. of the 
 Albany court of appeal, whose conduct in reference to election returns 
 had been most discreditable, presented himself in 1893 for a renewal of 
 his term, he was met by a popular majority against him. and was literally, 
 to use an Americanism, •' snowed under." Although the evils of an 
 elective judiciary are not so apparent on the aui"face. 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 to the exhibition of courage and 
 fidelity in the discbarge of their important functions. Judicial decisions 
 have been wanting in consistency, and too 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. 
 (Vnfidence in the impartiality of judges is sensibly lessened when it is the 
 ])artv machine that elects, and professional character and learning count 
 for comparatively little. If the intei-pretation of the constitution had 
 depended exclusively on this state judiciary, the results w mid have 
 been i)i'obably most unfavourable to the staltiiity of the union itself, but 
 happily for its best interests the men who framed the fundamental law 
 
 V 
 
[lioriuxoT] 
 
 A STUDY IN COMPARATIVE POLITICS 
 
 20 
 
 of the repul.'io. wisely provided an nppointive fi'deral judiciary, removed 
 from the forru|»t and degrading influences of election contests, and made 
 them the chief legal exponents of their written instrument of govern- 
 ment. 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 judiciarj' 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 resj)ect 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 govern- 
 ments, and between the provinces themselves. The governoi--in-council 
 may refer to the supreme court for hearing and argument important 
 questions of law or fact touching provincial legislation or any other con- 
 stitutional matter ; and the opinion of the court, although advi.sory 
 only, shall for all purposes of appeal to her majesty-in-council, be treated 
 as a final judgment l)etween 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 them in a legal form, and 
 are therefore bound to abstain from any extra judicial opinions upon 
 points of law. even though solemnly requested by the executive. A 
 Himjlar ))rovision exists in Ontario for a reference to the provincial 
 courts, and the question ma}^ be full}' argued — a provision that does not 
 exist in the few slates of the federal republic where the legislative de- 
 partment has been empowered to call up(m the judges for an opinion 
 upon the constitutional validity of a proposed law. Kither house of the 
 Canadian parliament nuiy also refer a question of jurisdiction in the case 
 of a private or local bill, but so far the .senate alone has availed itself of 
 what might, mi many instances, be a useful check on hasty legislation. 
 
 1 have hvelt at some length on these carefully devised methods of 
 obtaining .; judicial and reasoned opinion in cases of constitutional con- 
 troversy, with the view of showing that they are recognized as the best 
 means of arriving at a satisfactory solution of legal difficulties that can- 
 not be settled in the political arena. The neces.sity of making the courts 
 in every way po.ssible the arbiters in such cases is clearly shown bv the 
 history of the veto given by the British North America Act to the gov- 
 ernment of the Dominion over the legislation of the provinces. Although 
 the president and the governors of the states may by their veto prevent 
 the passage of any act of congress or of their respective legislaturew 
 which they consider objectionable from a constitutional or public point 
 of view, provided there is not a sufficient majoanty in those bodies — 
 
80 ROYAL SOCIETY OF CANADA 
 
 two-thiitls in eacli house of congress and a majority (generally speak- 
 ing) in the legislatures — to override that veto, the constitution does not 
 confer upon the executive authority of the nation that sovereign power 
 entrusted to the dominion government, of vetoing the legislation of the 
 states. 
 
 Br. James Hryce' tells us that the impression prevailed in the conven- 
 tion of 1787, which framed the conHtitution of the United States, that the 
 exercise of such a power by the federal authority -would have otf'ended 
 tlie sentiment of the states, always jealous of their autonomy, and would 
 have provoked collisions with them." This has been the experience of Can- 
 ada whenever the power has been exercised on grounds of public policy. 
 Collisions, which threatened at one time to be serious. aros<> between the 
 central g(»vernment aud the province of Manitoba on account of the 
 dominion authority vetoing certain provincial i*ailway acts, in conflict 
 with the obligations which the general government had as.-*umed in con- 
 nection with the Canadian Pacitic Railway — a national work of great 
 importance. The provincial acts were vetoed time and again, but the 
 Manitoba government persisted in re-enacting them, and the difficulty 
 was only settled by the intervention of the dominion parliament, who 
 gave to the Pacific JJailway cei-tain privileges in consideration of its con- 
 sent to the removal of the restrictions that had created the dispute. 
 From these and other cases it is clear that the exerci.se of the power is 
 viewed with great jealousy, and may at any moment lead to serious com- 
 ]ilications by creating antagonisms of mucli gravity between the central 
 and provincial governments. It is now. however. Incoming a conven- 
 tion of the constitution that the dominion authorities should not inter- 
 fere with any provincial legislation that does not infringe the fund- 
 amental law: that the only po.ssil>le excuse for sueh interference would 
 be the case of legislation clearly illegal or unconstilutional on the face of 
 it. or in direct violation of the original comjtaet or terms on which the 
 jirovinces entered the union, or danirerous to the security and integiity 
 ot' the dominion or of the empire. The debates of the Canadian parlia- 
 ment of recent years have shown what an advance has been made in the 
 direction of strengthening provincial autonomy since the early days of 
 the union, when Sir John Macdonald. who would minimize the ])owers 
 and privileges of the provinces to the extreme point, was bringing the 
 veto in practical operation, it is now deemed the wisest policy to leave 
 as far as possible all questions of constitutional controvei"sv to the action 
 of the courts by the method that the law. as I have already |iointedout. 
 provides to meet just such emergencies. In ordinary cases, however, 
 where there is an undoubted ciMitlict with |)owers belonging to the 
 central government, or where the province ha.- stepped beyond its con- 
 
 i "The American Commonwealth." vol. L. p. 'M^i. 
 
 
[bovbinot] 
 
 A STUDY IN COMPARATIVK POLITICS 
 
 31 
 
 stitutional authority, thi' veto continues to bo exercised with much con- 
 venience to all the parties interested. It must be admitted that on the 
 wlude the authorities of the Dominion have exercised this sovereign 
 power with discretion, but it cannot ije denied that it may be at any time 
 a dangerous weapon in tlie hands of an unscrupulous and reckless centi-al 
 administration when in direct antagonism to a provincial government, and 
 it can hai-dly l»e considered one of the elements of strength, but rather 
 a latent source of weakness in the federal .structure. 
 
 X. 
 
 Xo doubt the experience of the Canadians in the e.xercise 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 of con- 
 stitution, which simply provides that "when a law of a state is inconsi.st- 
 ent 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 pro- 
 clamation of the governor-general, as is done in Canada, but the provision 
 must III' simply a direction to the courts, which al.so in the proposed 
 commonwealth are to have ail the legitimate authority that is es.sential 
 to the satisfactory operation of a federal system. 
 
 The only power of veto expressly given to the commonwealth is that 
 of annulling any hiw or regulation made by any state, or by any uuthoritv 
 constituted by any state, having the effect of derogating from freedom 
 of ti'ade or commerce between the ditt'erent parts of the commonwealth. 
 As a matter of fact, any such state law would be decided unconstitutior.al. 
 since the regulaiion of trade and commerce is within the exclusive juris- 
 diction of the general government of the commonwealth, and consequently 
 the provision in question only states the law more emphatically, and 
 seems in a sense almost supen-rogatory. 
 
 Some of the members of the Australian convention, however, have 
 seen a means of controlling "state" legislation in the following provision : 
 "5. All ivferences or communications required by the constitution of 
 any state or othei'wise to be made by the governor to the queen shall be 
 made through the governoi'-general, as her majesty's reprcsi-ntative in 
 the commonwealth, and the queen's pleasure shall l»e known through 
 him.' 
 
 This section was seveivly criticized 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 
 
32 ROYAL SOCIETY OK CANADA 
 
 would tonstantly find itself pluii^fd into ditticulties. By means of one 
 rlianncl of intercourse, liowever. some order will lu' miiintained in tlie 
 ivltitioiis between Kni^land and the new federation. It is quite true that 
 the elause does not eay. as it was urged by more tinin one prominent 
 member ot the cojivention. "tliat the executive authority of the common- 
 wealth shall have the rii^lit to veto any hill passed by the ditt'erent states, 
 or even to recommend her nuijesty to disallow such bill : " but tliere'is 
 nothing to prevent the icovernor-general. as an imperial officer, from 
 making sucli comments in his despatches to the secretary of state for the 
 colonies as he may deem proper and necessary — indeed it is his constitu- 
 tional duty — when he transmits the acts of the respective 'states" to the 
 queen-in-council for approval or disapproval — all such acts continuing to 
 be so referred as at present. Of course the imperial government is not 
 likely to interfere with strictly local legislation anymore than they do 
 now; all they ever do is to disallow colonial legislation that contliet.s 
 with imperial acts or imperial obligations. It is quite clear that this 
 provision is t'or the advantage of the empire at large and necessary tor 
 the unity and harmony of the feileration. 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 him.self of 
 the opportunity the clause in question gives him of promoting the l)est 
 inteivsts of the Australian union. 
 
 XI. 
 
 When weccmie to consider the subject of education — one of the mattei-s 
 placed under the direct control of the provincial governments — we see 
 again the ditficulties that always aiise in connection with questions invol- 
 ving religious and sectional considei-ations. In the formation of the con- 
 stitution it was necessary to give guarantees to the Roman ( 'atholics or 
 minority of Ontario, and to the Protestants or minority of Quebec, that 
 the sectiiinan or separate schools, in existence at the union, should not he 
 disturbed by any subsequent legislation of their respective province*;. It 
 is consequently enactetl 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. 1867. Where in any province separate schools 
 existed in 1867 or were afterwards established by legislative authointy. an 
 appeal lies to the governor-general-in-council from any act or decision of 
 the pi-ovincial authoritv affecting any right or privilege of the Protestant 
 or Roman Catliolic minority in relation to education. In case the provin- 
 cial authorities refuse to act for the due protection of the rights of minori- 
 ties in accordance with the constitutional law, then the parliament of 
 Canada may pass a remedial act for the due execution of the law which 
 
{BouRiNOT] A STUDY IN COMPARATIVE POLITICS 88 
 
 has been framed to meet such an emergency. Such a vane haw arisen in 
 the province of Manitoba, where there existed under provincial Htatatei» 
 piiHsed since 1870, '• denominational schools, of which the control and 
 management were in the hands of Roman Catholics, who could select the 
 books to be used and detennine the character of the religious teaching."" 
 These schools received "their proportionate share of the money contri- 
 buted for school purposes out of the general taxation of the province, and 
 the money raised for thcst^ purposes by local assessment was. so far 
 aa it fell upon Catholics, applied only towards the support of Catholic 
 schools." But by statutes pa.'*<ed in 1890, the legislature of the province 
 did away with all denominational schools, although they provide for cer- 
 tain religious exercises, which are to be "non-sectarian." and are not obli- 
 gatory on the children when their parents object. Schools conducted 
 according to the Roman Catholic views will receive no aid from the state, 
 they must depend "entirely for their support upon the contributions or 
 the Ronuin Catholic community, while the taxes out of which state aid is- 
 granted to the schools provided for by the statute fall alike on Catholics- 
 and Protestants." While the Catholic inhabitants remain liable to local 
 assessment for school puri>oses, " the proceeds of that assessment are no- 
 longer destined to any extent for the support of Catholic schools, but attbrd 
 the means of maintaining schools which they regard as no more suitable 
 for the education of Catholic children than if they were distinctly Protes- 
 tant in their character." This statement of the grievances of the Roman- 
 ('atholic minority of Manitoba is given in the language of the lords of the 
 judicial committee of the privy council of England, to whom the question 
 of the right of that minority to appeal to the governor-general-in-council 
 of Canada under the constitutional law, governing such mattei-s, was 
 expressly referred. The governor-general-in-council has passed the order 
 contemplated by law, calling upon the legislature of Manitoba to remedy 
 the grievance of the minority and tliis matter is consequently now rela- 
 gated to the proper provincial authority.' Only in case of its refusal 
 to provide a constitutional remedy, can the supreme power of the parlia- 
 ment of the Dominion be called into operation. The subject is necessarily- 
 one of great embarrassment, since it involves an interference of dominion 
 power in what is primarily, under ordindiy conditions, within the exclu- 
 sive jurisdiction of a province. The fact that the judicial committee, or the 
 highest court of the empire, has practically decided that a right or privilege- 
 of the Roman Catholic minority has been altected, and that a remedy should 
 
 1 Since this paper wfis written the provincial government have sent an answer, 
 practically refusing to obey the order, but the dominion government have not yet- 
 Introduced any remedial law on the subject. They have deemed it advisable to 
 enter into further corre.spondence with the Manitoba executive, in the hope of some 
 settlement, and on the understanding that a session of parliament will be held early 
 in January, 1806, to consider the whole question in accordance with the law of the 
 constitution. See Can. Com. Hansard, July, 1895. 
 
 Sec. II., 1895. 3. 
 
34 
 
 KOYAL SOCIETY OF CANAMA 
 
 be provided in acfordaiue with I lie coiiMtitution, Iiuh i,'ivoii a Judiriul 
 aspect to this vexed (luostit)ii (hat it would not i><)ssihly assuiue were it u 
 more matter of political controversy or sectional agitation, and husthn>\vii 
 a vorv serious responsihility »Jj)on thosi- whose duty it is to ohey tlie hiw 
 of the constitution and I'especl the judgnndit of the courts who. under a 
 federal system, can he the only safe interpreteiN of the written fundamen- 
 tal law. 
 
 All these questions show some of the difficulties that are likely to 
 impede the satisfact(»ry oi)eration of the Canailian federal systenj. and the 
 projected Australian federation is fortunate in no! having similar intensi- 
 tied differences of race and religion to contend with. Its constitution 
 wisely leaves all educational and other purely local matters to the exclu- 
 sive jurisdiction of the ''states." and does not make provision for the 
 exercise of (hat delicate power of remedial legislation which is given to the 
 Canadian parliament to meet conditions of injustice to creed or nationality. 
 Throughout the structure 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 heen to strengthen this 
 (separate national entity, and give it over}' possible guarantee for the pre- 
 servation of its own laws and religion. The ffi-st step in this direction was 
 the Quebec Act of 1774. which relieved the Koman Catholics of Canada 
 from the ])olitical disabilities under which they had suffered since the 
 conquest. Seventeen years later what is known as the imperial "Consti- 
 tutional Act " (»f 1791, created two provinces, Upper Canada (Ontario). 
 and Lower Canada ((Quebec), with the avowed object of separating the 
 two races into distinct territorial divisions. From 1792 until 1840. when 
 the Canadas were re-united, there was a "war of races" in Fn'neh or 
 Lower Canada, where the English party, who had all the executive and 
 official power in their hands, became eventually embroiled with the popu- 
 lar anil Fiench majority in the as.sembly. When the insurrection led by 
 Louis Papineau — an eloquent and impulsive French Canadian — had been 
 easily repressed. French Canada was united to the western or Knglish 
 section, and an equal representation was given to both provinces in the 
 elected assembly, although the French had still tlu' larger population. 
 The English language was alone to be used in the legislative reconls. 
 The main object of these constitutional changes was confessetlly. as fone- 
 shadowed by Lord Durham, "to establish an English population, with 
 I'lnglish laws and language, in the province, and to trust its government 
 to none but a decidedlj' English legislature." The attempt to denationalize 
 the French Caruidians signally failed ; the union of 1841 came too late to 
 destroy or even minimize the work of the (Quebec and Constitutional acts 
 for over half a centuiy. French Canada became a powerful factor in the 
 affaii*s of the union that lasted from 1841 to 18G7 ; the French language 
 was restored, the elective councils that Papineau fought for were won, 
 
[ijourinot] 
 
 A STUDY IN COMPARATIVE POLITICS 
 
 8B 
 
 aiitl rospoiisiliU' /^ovcniiiiont — tlie iniiiciples of wliicli tliat iK)|iular cliiof 
 noviT uridorstood — was ostalilislH-d larift'ly thnm^^li the dind'otion and 
 ability of Lafoiitaineaiid «>lin'r KroiicliCanadiaii pulilio inenwhoHaw that 
 their f^ival advaulai^c lav in tlie o|«'rati<)n of siuli a system. If Sir John 
 .Macdoiiald was aluc to cxeiviso so niui-h intluuiicc in thopoliticsof Canada 
 hoforo and after con fciU'ration. it was larijfi'ly — Honietimesentiroly — through 
 the aid of men like ( 'artier and his eonipat riots, who reeognized in that 
 eminent statesman that lilterality as well as i>lialtility which would enable 
 their race to hold their osvn against the aggressive assaults(d' thoextrerae 
 reformers or "Clear (irits." led l>y Mr. (ieorgo Brown, a very able but 
 impracticable i^olitician, who did not give sutlicient importance to the fact 
 that Canada ci)uld be governed only by principK's of compromiso and 
 conciliation in the presence of a large and closely welded French Cana- 
 dian people, jealous of their institutions and their nationality. Kventually 
 government got to a deadlock in consequence of the difficulties between 
 the two political parties: a majority of French Canadian and a minority 
 of English representatives, comprising the conservativi's led by^lacdonald 
 and Cartier, and a majoiity of westei-n or Knglish and a small minority 
 of French members, comprising the libends and grits, led by Brown and 
 Dorion. Tho.se political ditticultie.s. arising froni the antagonism of 
 nationalities, led to the federation of all the provinces and to the giving of 
 additional guarantees for the ])rotection of Fn'nch Canadian interests. 
 In the senate of the Dominion. Quebec has a representation equal to that 
 of English Ontario, with nearly doul)le the ))opulation, with the condition 
 that each of its twenty-four memln-rs shall be chosen from each of the 
 districts of the province — a condition intended to ensure French Cana- 
 dian representation to the fullest extent possible. 
 
 In the adjustment of representation in the house of commons, from 
 time to time, the proportion of sixty-tive members, given by the union act 
 to Quebec, cannot be disturbed. The jurisdiction given to the i)rovinces 
 over civil rights and property, and the administration of justice except in 
 criminal mattei-s. was chiefly the work of French Canada, whose people 
 have since 1774 accepted the criminal law of Kngland, but have not been 
 willing to surrender their civil code, based on the Coutume de Paris, which 
 they have derived from their French ancestoi-s. i^)th the Fi'ench and 
 English languages are used in the debates, records and journals of the par- 
 Uament of the Dominion and the legislature of (Quebec. It would be dif- 
 ficult 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 coui-se, the industrial energy of the English 
 people, and the necessity of speaking the language of the English majority, 
 have to a certain extent broken down the barriei-s that language imposes 
 between nationalities, and it is only in the isolated and distant parishes of 
 Quebec that we find pei-sons who are ignorant of ICnglish. The political 
 
86 ROYAL SOCIETY OF CANADA 
 
 (•onHcqm«n('('Ht)t'tlio It^^islutioii ol" the jmst ci'iitiirv Imvi' Ikhmi to cement tho 
 French ("iiniulian nationality, to make it, mo to speak, an imperium in imperio, 
 aBupronje power at tirncH in tlie Dominion. It must k* admitted that on tho 
 whole, rational and judicious counsels have prevailed anion^ the cultured 
 and ablest statesmen of French Canada at critical tinu's, when rash agita- 
 tors have attempted to stituulate sectional and racial animo.sities and pas- 
 sions tor purely political ends. The history of the two outbreaks of the 
 half-breeds in the Northwest, and of the recent school legislation in Mani- 
 toba so far as it has >.?one, show the deep interest taken l»y French Cana- 
 dians in all mattei-s ailectin^ their compatriots and co-reli^ionists, and the 
 necessity for caution and conciliation in working out the federal union. 
 Tho federal constitution has been lari^ely moulded in their interest, and the 
 security and hai)piness of the (y'anmlian Dominion in the future must greatly 
 depend on their <leternuiuiti(m to adhere to the letter as well as spirit of 
 this important instnunent. 
 
 XII. 
 
 When wo compare the British North America Act of Canada with 
 tho draft of the bill to constitute the federation of Australia, that was tho 
 result of tho convention of 1891, we must be impressed by the fact that 
 the former appears more iiiHuenced by the spirit of English ideas than 
 the latter, which has copied many of the features of tho constitution of 
 the United States. In tho preamble of the Canadian act we find expressly 
 stated 'the desire of the Canadian [jrovinces to be federally united into 
 one dominion under tho crown of the united kingdom of Great Britain 
 and Ireland, with a constitution similar in principle to that of the united 
 kingdom," while the preamble of the proposed Australian constitution 
 contains only a bald statement of an agreement " to unite in one federal 
 commonwealth under the crown." The word "commonwealth " has cer- 
 tainly a general application to a body politic governed on popular prin- 
 ciples, and has been constantly so used by poets, oratoi-s and writers who 
 have not been called upon to study accuracy of ex])rcssion. We all 
 remember that Shakspere has said — 
 
 And again — 
 
 " Hear him debate of commonwealth alTairs, 
 
 You would say, it hath been all-in-all his .study."' 
 
 " And now, forsooth, takes on him to reform 
 Some certain edicts and some strait decrees 
 That lie too heavy on the commonwealth. ' = 
 
 But tho language of the poet can hardly make us forget a very trying 
 period of English history, when the crown was beneath the heel of a 
 
 • " Henry V.," act i., sc. i. 
 
 » " Henry IV.," Ist part, act iv., sc. iii. 
 
[hdi'Risot] 
 
 A STUDY IN COMPARATIVE POLITK 8 
 
 37 
 
 n'publioun uiul military dospotiHin — u poriod host rcnuMiilterod for 
 CromwiilTH ^oniun mid liio sucooHsful uHwertioii of Kn/rlaiid'a ^n>atiK>NN on 
 8t'a and land in Iut conrtict with foivii^n natioim. ProH'MHor Fiveinun, 
 in hi.s ivvicw (»t t'l'doral i^ovcrnniont, t;ivos us four t'uniouH vxanipluH of 
 fi'doral ronunonwi'altlis — tho Acliaian League, tho Swiss ('Onttulcration, 
 tho Sevon Unitod I'rovinces of thu Nuthorlands, and tho Unitod Stattis of 
 Ainoriru — all of which stand out at dirttiront opocdis of the world's pro- 
 gross as nMnarkal)lo illustrations of tho ro|)ubli('an systoni. All of us will 
 also reinoMibor that Dr. Juuios liryco, in his olahoruto critioiani of repub- 
 lican institutions, could find no more oxprossive title for his work than 
 •'Th<» American Commonwealth." No doubt the word has come to mean 
 >• pure republic or democracy, when used in a specific and definite Benso 
 by publicists of those days. Shaksporo mi^ht use all the license of the 
 poet in his dramas ; for he was not bound by those rules of correct 
 expression which one would ox]ioct from Australian statesmen engaged 
 in framing a now constitution tor countries not yet se])arated from Eng 
 land or governed on a j»urely ro])ublican system of institutions, such as 
 elected president, governors, judges and officials generally. 
 
 When we consider the choice of this word of dubious significance, as 
 well as the selection of the word ''state" instead of "province " of "house 
 of representatives" ' instead of "house of commons," of "executive coun- 
 cil " instead of " privy council," wo may well wonder why the Austra- 
 lians — all English by origin and aspiration — should have shown so steady 
 an inclination to deviate from tho j)rocodent8 established by a Dominion 
 only partly Hlnglish with the view of carving ancient historic names on 
 the very front of its political structure. 
 
 It is an interesting fact not generally known — but the present writer 
 had it from the lips of Sir John Mac^donald himself — that the word 
 " Dominion " was only adopted as a compromise in response to the wishes 
 of the English ministry of the day, who were not willing to take the sug- 
 gestion made by some of the Canadian delegates to the Westminster con- 
 ference of 1866 that the new federation should bo described in the union 
 act as "the kingdom of Canada," 8imi)ly because English statesmen were 
 afraid to wound the susceptibilities of the people of the United States, 
 •who still retained a feeling of antagonism to England arising out of the 
 civil war, and had so recently resented the attempt made by the French 
 emperor to interfere in the affairs of Mexico, and establish in America 
 
 ' The present popular house of New Zealand is called a " house of represent- 
 atives," and this is not strange when we recall the republican principles of Sir 
 George Grey, who is an earnest advocate of elective 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. 
 
38 ROYAL SOCIEIY OF CANADA 
 
 what would be really a dependency of the French empire. It would, 
 perhaps, be quite in accord with the ambitious aspirations of Australians 
 were they to substitute the words "United Australia " for a word of 
 dubious signiticance like ''commonwealth." 
 
 In ieavinijf to the " states ' the right of appointing or electing their 
 " governoi-s '" — not lieutenant governoi's 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 C()nnnon\\ealth is in operation, it will 
 not be long l>efore the heads of the executive authoiity will l)e 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 officei-s, now appointed by the crown under the advice of a 
 ministry responsible to parliament for every appointment, and other acts 
 of administrative and executive authorit}'. 
 
 We see also the imitation of the constitution of the American repub- 
 lic in making the centi'al government alone one of enumerated powers, 
 and leaving the residuary power in the •' states." The werd '• parliament " 
 is also generally applied to the legislative bodies of the federal and state 
 governments, another illustration of the dominant influence of the respec- 
 tive colonies — hereafter "states" — in the proposeil constitution. 
 
 We see the same American influence in the provision that, "when a 
 law [^sic'\ passed by the parliament " [sicli is presented to the governor- 
 general •• for the queens as.sent," he may "I'eturn it to the parliament 
 [sic'\ with amendments which he nxay desire to have made in such law " 
 [sicj. One cannot undei-stand the reasoning which justifies the giving 
 of such a power to the executive head : it is quite irrecoiicilable with 
 the principles and practice of responsible government. The governoi-- 
 general must, in all cases affectingthegovernment of the colony, act under 
 the advice of ministei-s. In this case, however, he is to assume the dubious 
 position held by similar officei"s before there was a ministry responsible to 
 him anil the two houses for all legislation. One may also humbly inquire 
 how a bill l)ecomes 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 <locument ? Such loose phraseo- 
 logy might do for common ])arlance. but not for a proposed statute, especial- 
 ly when in a former clause '• parliament" is said to •• consist of her majesty, 
 a senate and a house of representatives." We think that here at least the 
 draughtsmen of the bill might advaniageousl}- have copied the correct 
 language of the American i'ei)ublicau constitution, which never uses " law " 
 in so incorrect a sense, if the}' were not prepared to accept the British 
 North American Act a.s their model, though it was prepared under so high 
 an authority as Lord Thring. 
 
 Again, while the bill i)rovides for a supreme and other federal courts 
 to be appointed and removed by the authorities of the commonwealth — 
 
[BoumxoT] A STUDY IN COMPARATIVE POLITICS 89 
 
 and the ii\f1uencc of the American example is seen in the very lan;nj\iage 
 setting; forth the poweix of these jiulieial bodies — the ''state" govern- 
 ments are to have full jurisdiction over the -state" courts. The federal 
 judges can lie removed, as in (Janatla, only by successful impeachment in 
 parliament and on address of the two houses to the governor-general in 
 council, and as long as the present constitutions of the Australian colonies 
 remain unchanged the ".state" judges can lie removed only by the action 
 of the 'state" parliament. The Canadian constitution in this respect 
 appears to give greater security for an independent and stable judiciary, 
 since a government ojterating on a large sphere of action is likely to make 
 better appointments than a small and less influential body within the range 
 of provincial jealoasies. i-ivalrie.s and faction. Indeed, it is not going too 
 far to suppt)se 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 swei)t away all dictates of prudence and given 
 unbridled licence to professional ])olitical managei's only anxious for the 
 success of part}'. 
 
 As respects any amendment of the con.stitution after its adoption, the 
 Australians have also copied the constitutional provision of the American 
 republic — that whenever two-thirds of the houses of ctmgress or of the 
 several states shall deem amenilment necessary, it will be submitted to a 
 convention and form part of the constitution when ratified by the legis- 
 liitures or conventions of three-fourths of the states, as congress may deter- 
 mine. The Australian bill permits an amendment to be proposed by 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 the states, who represent a majority of the people of the 
 federation, before it can be submitted to the governor-general for the 
 queen's as.sent. The Canadian constitution may be amended in any par- 
 ticular, where power is not expressly given for that purpose to the parlia- 
 ment or legislatures, b}- an address of the Canadian senate and commons, 
 to the queen — in other words, by the English parliament that enacted 
 the original act of union — and without any r'^ference whatever to the 
 people voting at an election or a-ssembled in a convention. Of coui-se, 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 l)y business, will show any desire to interfere with 
 the expression of the wishes of the Canadian houses on a matter immedi- 
 ately affecting the Canadians themselves. So far there have been only 
 three 'amendments nuide by the imperial parliament to the British North 
 America Act in twenty-seven yeai^s, and these were simply necessary to 
 clear up doubts as to the powei-s of the Canadian hou.ses. This fact says 
 much for the satisfactory operation of the Canadian constitution, as well 
 
40 R(>v\L SOCIETY OF CANADA 
 
 as for the discretion of Canadian statesmen. The Canadian constitution, 
 in this particular, clearl)'^ recognizes the right of the supreme parliament 
 of the empire to act as the arbiter on occasions when independent, impartial 
 action is necea^aiy, and 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 action of a great 
 parliament, which might be useful in some crisis affecting deeply the 
 integrity and unity of Australia, and to give full scope onlj- to the will of 
 •democrac}' expressed in popular conventions. It is quite possible that the 
 j^)-stem will work smoothly, and even advantageously, though we should 
 have preferred, on the whole, to see less readiness on the part of English 
 <«olonies to reproduce purely republican ideas and methods of government 
 and to lessen the weight and influence of the parliament and supreme 
 court of the whole empire in the government of the pi"opo.se<.l Australian 
 federal tion. 
 
 XIII. 
 
 It is not the intention of the writer to review the financial features of 
 the propo.sed federation of Australia, as that would Ije presumptuous on the 
 part of a Canadian who cannot have that local knowledge which would 
 enable him to write intelligently or confidently on the subject. All that 
 .he has ventured to do is to give his opinion on certain constitutional and 
 political differences between the Canadian system and that suggested for 
 Au.stralia. But before passing away from the AastraHan bill, there is one 
 matter to /hich allusion may be appropriately made. The Australian 
 scheme projjoses to reproduce that feature of the Canadian constitution 
 which prohibits "dual representation," that is to say. the return of the 
 same man to both the dominion parliament and a provincial legislature. 
 It is questionable, however, if this law has o{)erated as satisfactorily as was 
 anticipated when it was passed at the inception of confederation. The 
 great number of representatives i-equii-ed for the .several legislative bodies 
 of Canada, over 700 ' in all, has made a steady drain on the intellectual 
 and business elements of a Dominion of only five millions of j)eople. Many 
 thinking men now believe, after the exi)erience of the last quarter of a 
 centurj', that the presence of able and experienced men both in the central 
 and local legislatures might do much to prevent many sectional jealousies 
 and rivalries and tend to a larger appreciation of the divei-se wants and 
 nc'^essities of the provinces, and to a wider national sentiment, than seems 
 possible under a system of practically restrictive representation or legisla- 
 tive isolation. 
 
 • See Bourinot's ' How Canada is Governed ' (Toronto, 1805), p. IfiO. 
 
tBOURiNOT] A STUDY IN COMPARATIVE POLITICS 41 
 
 XIV. 
 
 r 
 
 Every Englishman will consider it an interesting and encourag- 
 ing fact that the Canadian people, despite their neighbourhood to a 
 great and prosperous federal commonwealth, should not even in the nust 
 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. Pivvious to 1840, which was the 
 commencement of a new era in the ])olitical history of the provinces, there 
 was a time when discontent pi-evailed throughout the Canadas. but never 
 did any large body of the people thi-eaten 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 
 English institutions, in the closest possible connection with the mother 
 country. While the question of union was under consideration it was 
 English statesmen and writers alone who predicted that this new fed- 
 eration, with its great extent of territoiy. 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 
 England on the Canadian Dominion can l)e seen throughout its 
 governmental machineiy, in the system of parliamentaiy government, 
 in the constitution of the pri\y council ami the houses of parliament, 
 in an independent judiciaiy, in appointed oflicials of eveiy class — in 
 the provincial as well as dominion .system — in a permanent and non-politi- 
 cal civil service, and in all elements of sound administration. During 
 the twenty -eight years that have passed since 1867, the attachment 
 to England and her institutions has gained in strength, and it is clear that 
 those predictions of Englishmen to which we have refen-ed 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 strtngth- 
 ening the ties that have in some respects iKHome weak in consequence of 
 the enlargement of the political rights of the Dominion, which has a^uamed 
 the position of a semi-independent power, .since England now only retains 
 her imperial sovereignty by declaring peace or war with foreign nations, 
 by appointing a govenior-general, by conti-olling colonial legislation 
 through the queen-in-council and the queen in parliament — but not so as 
 to diminish the inghts of local self-government conceded to the Dominion — 
 and by requiring the making of all treaties with foreign nations through 
 her own government, while recognizing the right of tha dependency to he 
 consulted and directly representetl on all occasions when its interests are 
 
42 KOYAL SOCIETY OF CANADA 
 
 inimodiatoly atfoctcvl. In no rcsjieft have the Canadians tollowed tho 
 example of the United States, and made their execntive entirely separate 
 from the legislative authority. On the contrary, there is no institution 
 which works more admirably in the federation — in the f^eneral as Avell as 
 provincial governinents — than the princi])le of making the ministry respon- 
 sible to the popular branch of the legislature, and in that way keeping the 
 executive and legislative departments in harmony with one another and 
 pi-eventing 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 constitutions of 
 the states, and especially those ratified quite recently in New York, we see 
 in how many respects the Canadian system of gpvei-nment issui)erior to that 
 of the republic. For instance. Canada has enjoyed for yeaix, as results of 
 responsible government, the secret ballot, stringent laws against bribery 
 and corruption at all classes of elections, the ivgistration of votei-s, strict 
 naturalization laws, infrequent political elections, separation of municipal 
 from provincial or national contests, appointive and permanent officials in 
 every branch of the public service, a carefully devised code of private bill 
 legislation, the printing of all pubhc as well as pi'ivate bills before their con- 
 sideration by the legislative Ijotlies ; antlyetall these essentials of safe admin- 
 istration and legislation are now only being introduced by constitutional 
 enactment in so powerful and progressive a state as New Yoi-k. Of course, 
 in the methods of party government we can see in Canada at times an 
 attempt 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. liap])ily, 
 .so far, the people of Canatla 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 betrayed their 
 trust in the administration of public artaii"s. Although Canadians may, 
 according to their poHtical proclivities. And fault with the methods of gov- 
 ernments and be carried away at times by political passion beyond the 
 bounds of reason, it is encouraging to tind that all are ready to admit the 
 high character of the judiciary tor learning, integrity and incorru[)tibility. 
 The recortls of Canada do not [»resent a single instance of the successful 
 impeachment or removal of a judge for improi)er conduct on the bench 
 since the days of resjwnsible government, and the three or four petitions 
 laid before parliament, in the course of a quarter of a century, asking for 
 an investigation into vague charges against some judges, have never 
 required a jutlgment of the house. C'anadians have built wisely when, 
 in the formation of their constitution, they followeil the English plan of 
 having an intimate and invaluable connection Ijetween the executive and 
 legislative departments, and of kcei)ing the judiciary practically iiuiepen- 
 dent of the other authorities of government. Not only the life and pros- 
 
[bourinot] a study IN COMPARATIVE POLITICS 43 
 
 perity of the people, but tlie .satisfactory working of tlie wliole ^system of 
 federal government rests more or less on the discretion anil integrity of the 
 judges. Canadians are satisfied that the peace antl security of the whole 
 -Dominion do no more depend 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 prejutlice and 
 passion, statesnumship is too often weak and fluctuating, inca])abl*e of appre- 
 ciating the true tendency of events, and too ready to yield to the force of 
 present circumstance or dictates of expediency ; but law, as worked out on 
 English principles in all the ilependencies of the empire ami countries of 
 English origin, as undei-stood by Marshall, Story, Kent, and other great 
 masters of constitutional and legal learning, gives the best po.ssible guar- 
 antee for the security of institutions in a country of popular government