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1 2 3

rtr

fiouse of Commons Bcbate$

— ■

FOURTH SESSION-SiXTH PARLIAMENT.

r) E 13 ^ T E

ON THE

POWER OF DISALLOWANCE,

TUESDAY, 29th APEIL, 1890

Mr. BLAKE. Pursuant to the notice which I
gave some diiys ago, I rise t;> move in amendment

fnnnitnl^ ''-•?'■' ""^ '"?'■''' a*^'" That " and insert the
tollowing:- 'it IS expedient to provide means where ,v
on solemn occasions touching the e.x-ercise of the poww
iL,\T]\Ti"?''' "'■ "' "'« "Pnellato power as to e'duoa-
h?«i.^H'K '■?."' '"'PO'-t'Wt luestions of law or fact may
for he. ,,',?>::.' '''^'^''^""^'-'•''' "• hi«'' judicial trihunal
lor hearing ami consideration, in such mode that the
a homes and i.,.rf,e. iutereste.l may be ropresen ed
f:rm!l'r^.;^^,?rheEle!;',?r'""'^ •" obtained fSr the iif-
At this stage of tlie St-.ssion I shall en<leavor to
con^pnse within the hriefest jwssible limits tliose
ohservations wliieii I have to make in support of
tins proposition. I wouhl say that recent, current
and imminent events have comhineil to convince
mo that It 1.' imi)ortant in the public interest that
this motion sliould receive attention during this
Session, else I should not have propounded it
at this time. I propound it, as its language
implies, and as, I thinic, you will observe before I
sit down, in no hostile spirit towards the Adininis-
uation ; and its form is one which is not necessarily
hosti.e but which I have adopted on this occasion
not with any view of precluding an amendment, but
because it is the only available method by which 1
can now hope to bring the matter under your con-
sideration at all. Now, Sii', the federal constitution
ot (. anada specially demands our attention to the
legality of its legislative Acts. We have within
our borders seven Provincial Legislatures, one
1 eiritorial Asstiinbly and this Parliament, all and
each with limited powers, all and each hedged in
by limitations^with reference to the Provincial i
Legislatures and the Parliament, as between these
two, and with reference to both the Provincial
Legislatures fin.l the Parliament, as between them
lioti. and the reserved powers of th« Imperial Par-
liament- with limited powers, I say, any excess,
or attempted evcessof which in legislation is abso-
lutely void. Our several constitutions are partly
unwritten and undefined ; th-.y are also largely
perhaps, I may say, mainly, written and de-
nned. And so It has happencil that wv hare
talJen into the use of the word constitutional in

two very different senses : one, the only sen.se in
which It 1.S used ,n the mother coi.ntry, ,vhose con-
stitution, being the growth of customs, precedents,
practices and princM: <, a„d „„t being a written
instrument, una terr ,..e by the Parliament, ParliH-
meiit being itself snpreme-whosc constitution, I
say, 13 a thing elastic, plastic, changing, of the
spirit, not of the letter : and so, when we speak
in the Lnglish sense, of an Act being constitutiona
or unconstitutional, we refer to its spirit, we refer
f . the (lucstion whether it is in acc(,rd witli, or in
violation of, the spirit of the cf,nstitution. Hut we
have anofh. ■ ..use in which we use the word iu
a sense peculiar to oui-s.^ves, or at any rate, dis-
tinct from its use in tht^ mother country : we use
It aiso to express an Act in excess of our legal
powers. In the first class of cases, however obnox-
ous may be the Act that we con.lenin, it is never-
theless indi.si.ntably valid; in the second class
ot cases, however useful we may conshler the
Act we are discussing, it is null and void. The
hrst .lass ot ca.ses depends on political considera-
tions entirely outride the judicial domain, which
is .luite unhttcd for their disposition ; the second
cla,ss <lepends upon legal considerati(uis fitted
for the judicial domain, and which ought, as
far as may be, to be kept within it. Vet Sir
no Legislature or Kxecutive can, any more thail
any private ...dividual, act at all without con-
sidering, and in a sense (leci.ling f„,- itsdf, the
legality of its acts, an.l so in some sort, entering
nrnm the judicial .lepartment. Rut not upon
the domain of the judicial power ; because our
opinum that .nir vets are vali.l does not make
them so; their vali.lity depends upon the decision
ot the judicial authority, an,l upon that alone.
Now hir the general notion that the exe.mtive,
the legislative and the judicial departments of

f™V""'\""®''' *".-"^' *"' ^*^'- '^^practicable,
separata an.l apart, is one hehl by many of
the most emine.it constitutionalists as a fundainen-
ta principle. I here can be no doubt that the ab-
solute .mion of these departments is neither more
nor less than absolute despotism. Unite in one
liand, 1 care not whether it be the hand nf ais .iiit/)-

crat or the liiiiiil nf it Cimiuil, tlic [xiucr of legisla-
tinii, tin: |)i)\vtM' of iiiljiiiliiiition, unci tlic jiowcr
of (Siliiiinimialioii, anil yon iiiMkt; the most almo-
lut<; (Ifspot that i« conuiivalili'. Tho sopanition,
thcittnie, of thuMo (lepartnuiit.s, the ck'^muo to
Mhicli, witliont ovi.Twi'Mkcuing or ovei'-ooniplioat-
inj^ thi' artidii of the niai liin<', you can Heparato
l.'ieiii, marks ihc (h'f^ico lo whicli, in this a.sjject of
a couNtitutioiial systiMii, you havi' •itlaincil |)i.'ifo(.-
tion. I do not Haytliat they can bo aiisoliitcly and
alu ays si'paiati'il. ll is not so. Now, my olijoct
is to a|)j)ly tlit'M! j^tni'ial views, whicii I have Ijiictly
stated, to one iuiiioitant class of |)ulilie trans-
aci'ons so far as may \h' fonm pivKiticaMe ; and
til U class of pnlilic transactions is divided, as you
will sec liy my notice, into two suliject niatt^is, in
whicli the l)ominion Kxeeutive, itself a political
lioily, has a constitutional duty, the discharge of
which involves the iutei jjietation of statutes, and
thus the solution of strictly lej;al i|uestions ; ami i
in which also thi-^ I'ailiauienl. which has the right
to advise, to condemn or to appii^ve, has, or may
ha\c, ilulies of its own. I hy no nu'aiis propose to
n ithdiaw from the K\ecuti\i' its duty ; my object j
is to aid it in Iheeliicient execution of its duty. 1 i
make no attem]>t at this time to discuss the pro- j
priety of these constitutional provisions, or, in any i
general sense, the executive, the parliauu'ntary or 1
the party action which has tended more or less, to
elucidate the generally aceeptctd or the generally'l
<)p|)osing views upon these sulijects. >Iy only
wish is, without discussing how far these provisions
are wise, taking tlicni as they are, to facilitate the
b'itter working of them. The lirst of the two
classes to whi(;h I allude is that in which the pro-
posal conu;s before the Kveeutive, to disallow an
Act of a l'ro\incial Legislature on the groun<l that
that Act is ii/tra riri Jf it lie so, the Act is void ;
and I think I may say, that it is now generally
agreed that xoid Acts should not be disallowed,
but should be left to the action of the courts. It
is, iu;vertheless, and I think with sound reason,
contended, that circumstifnces of great general
inconvenience or prejudice from a Dominion stand-
l)oint, and involving diliiculty, delay, --r the im-
possibility of a resort to hiw, may justify the jjoliey
of disallowance, even in ca.ses i:. which the Act
is iiJ/ra )/'v.v, and tlHueforc void. In that view
there would arise two questions, the question of
policy, and the r|uestion of legality ; because the
question of legality leaves untouched the cpicstiou
of policy, whicli is, " even if the Act be void, shall
it be disallow e<l or no V '' The other class to which
my motion alludes, is that of thi- Eilucational
Hp])eal, which arises under section 9."! of the Con-
stitutional Act, and under the anahjgous provision
of the Manitoba Constitutional Act. Cnder these
clauses a linii'ed power to make Educational laws
is granted to a Province, provided, amongst other
things, that nothing therein contained shall pre-
judicially affect any right, or privilege, with
respect to denomiuational schools w! ich any of
the Provinces had by law, or, in the ca.se of >lani-
toba, by practice, at the Union. There is another
class of restrictions, which I do not in terms touch
here, but to which, incasesinvvnichanappealis raised
upon them, my oliservations would equally apply.
This limitation upon the power of a Province is
made more elfectual by a special pro\ 'sion, giving
fin appeal to the Dominion Executive from any Act
or decision of the Provincial Legisli.ture or Author-

that and of analogous questions w ere finally settled
-settk'd, at all events, for the bulk of the party

ities afft'(!ting any right or i)rivilege of the Pro-
testant or Konian Catholic minority in relation to
eilueation ; .md whereby also^ in ca.se of the non-
execution by the Provinct^ of the deti.slon of the
Executive, this Pailiani"nt may make reniediai
lavv.i for tlu^ ]iurp(iie nf ell'ectuating tlwt decision,
riio.se nieiiiliers who have long b.^en lici'e will well
remember the Xew Itrunswick school ease, w Inch
was agitated for many years; in the course of which
igitation i have hopi^l that some political aspects of

llv seltlei'
the partj
with which I act, and for the humble individual
who is now addressing you. [ regard it as settled,
for myself at iny rate, lirst of all, that, as a(|uestion
of policy, thei'e shall be no disallowance of Educa-
tional legislation, for the mere re.-..s(m that, in the
o))ini()n of thi.s Parliament, some other or dilVerent
(lolicy than that which the Province has thought
lit to adopt would be a better jioliey. I hold it
to be scttlud, in the .second place, that no Aildresa
to the Crown shall be passed by this Parliament
asking for a change of the Constitutional Act as
all'ecting any Pioviiice, at any rate against the will
of that Priivince, in this jiartieular. And 1 hold
it to be settled, thiidly ; indeeil it follows ob\i-
oiisly from these two proi>ositions, that the only
ipiesti.uis which can practically arise within our
ilomain are such as may be raised, by way of
apjieal, under section S3 and the analogous section
of the Manitoba Act. The events which took
place in connection with the Xew Brunswick
school ca.se urtord, to my.self at all events, a strong
proof nf the expediency of what 1 now propose.
Let me enforce the three propositions which I
have stated by a brief reference to the votes
u|(on tliat occasion. In part those votes ■were
taken when lion, gentlemen opposite were in
power, in part they were taken when the Liberal
j)arty were in power. I'he hrst stage in the trans-
action occurred when lum. gentlemen opposite were
in power ; and in May, 187'2, 1 voted with the ma-
jority of the House against a motion to regret
that the Xew Urunswick school law had not been
disaUowod by the ( iovernment to which I was
opjiosed ; although I was, and expressed myself,
of the opinion that some of the changes which
had been made by that Provincial law were hnr.sli
changes. At the same time, I seconded a motion,
whicli fortunately also prevailed :

" That this }[oii«e uociiis it expedient thnt the opinion
of the law iitlicers in England, imkI if possible of the
Judicial Coininitteo of the I'rivy i^ianoil, .«hoiilil lie ob-
tained as to the rislit of the Now Hruuswiuk Legislature
to make sue? changes in the school law as deprived
Roman Catholics of the privilo(?cs which they enjoyed
at the I'nion, in respect of reliijioas eduuiition in the
eomuioii scliools, with a view ot nscertaiiiiiig whether
tlic ciise comes within the terms of snh-seetiou 4 of
section (i.i of the P.ritish Xorth America Act of 1867,
which authorised the Parliament of Oynaila to enact
remedial laws for the duo execution of the provisions
respecting education in tho said Act."

At that time, I need hardly remind the House,
there was no Supreme Court in existence. The
advice of the law otiicers was obtained, and it was,
as it had been on prior, and as 1 am afraid, if
I nriy judge by a notice on the paper, it has
been on subsequent occasions, not perhaps very
sat'sfying ; and tht^e was no mode of approach
ajiparently to the Judicial Coniniittee. In the
end we had to get up a suit in some way or
other, about some assessment or other, in order to

..I.ain l.y a clumsy and expensive process, a
.iu...ual .leus,.,,;, not readie.! for sol.a. yur.s
uft.TWHr,lH, ot tl-e ,|u..stion iuvolv.-l un.l hUuU i„
the ,ii„i„.„ « liioli 1 hav,. just re.i.|. The hocoi.,!
s .ifc'o ot thoHi; |,ro<v...lings luose in 187.-., wh.;u
th.. i,.v.M,.nt Minister ot I„l,ui.I K.^ven.io (Mr
ost^Kan), Nvhoin f regret not to 8,.c l.^r.., l.eiuu
then II. o,.,,osition, gavo notic- of u .notu.n for an
A.I, r^..^s to tl.o ( n.wn i-raying for an alloration in
thcM.mstUMt.onul Act as it affec.i..,! the Province

!ti 'T .'"'"".""'^^ '" t''i« '■••K">'i. Ui.on that
noti.'c being wivcn, I put iip.>n tl... Vot,..s an.l Pro-
ceeding's notice of .m iinHn.li,...|.t, which 1 take
lea^•e to rea.l as expressing the views I then enter-

'• T). , ■^'' '",""''' 'if amen.Io. i. this piiiticiiliir

llri. swick. en the powers sorcsorveVl, w.miL hv iiin i i«h
inK.ll.o soc.rit.vnow «.,j„.ved bv e..el. ", „' ,'00 i",^^
mam.em.,oe ot Us ,„-.,vi„oial right., reiul '^^'^^^^t It. 1

.|";".-'^l'i'''* whivtovor may bo the opininns of mrmbori of
fin., HoiisfMin tli«r.liRvifio,i,.|,,oli,.yofai,yPr V nco thi«
1 .M.sc .leci.s It ine.xm..Iicnt to .uhlress tho(>o w. ,i fim r
of a„y amooame.it which wo.il.i, ..Kai.is the w il .,f tho

\yhen the motion of the present Minister of Inlan.l

the K,isl Ki.hng of Wrk (Mr. M.ieken/.ie), then
1' irst Minister, moved the following amen.lment:-^

i ounces, for tins Hou.^e to invito such IcKislati.,.. "
ihis ..n.en.lment, for which 1 vote.l, was earrie.l,
Mitl. the a.Mitnm ot :m aiaen.lment inviting the

M t.h the (.overnment ot New Urnnswick for so,„e

change by the.r own voluntjiry a.'tion ; the opini<,n

the House contmu.ng to be as it ha.l be.m in the

prev ous Parliament, that the legislation which

vas l.e subject o agitation w.is in some part cu

u s harsh ami might better have been otherwise ;

WIvr 1 '1 '"'t.'' 'I'-ftion for the J'rovince

freely to .leei, le. I have, I think, ,,rove,l my ease.

l.Z;. '1 "\ '>^^^«'^«e "f this power ,/, lisal-
il ?J'^' *-' '■'•^■«'"»'«'t, political .luesti.ms

Vues.ions of pol.ey may present themselves, that

nullb't't'" 7 %^I'f'l'«»«y' of ecmveniei.ee, of the
n . c nterest, of the spirit of the constitution or
of he form of legislation. All these are cleailv
k fir7h'^ o;:tl.e executive an.l legislative, tjl,^t
8 1 01 the political departments of the Government.
1 ut ,t IS e,,uully clear, that when in er.Ier to .le-
ft .1 ^r"' ''/'"'■*"' •^."" '"""'' '"^'1 whether a imr-
ticnla, ac ,s nfraurtnfm ri,r., you are diselKirg-
g .1 legal ami .1 judicial functi.m. What .lo you
Act an.l'l^TT'' *^ '■'*«•■?■•«* the Constitutional
hite'-Z <? ^ •« meaning; you procee.l to
a Id to !l« " I.':"^"'^'^^l Aot under oonsi.leration
mrethlf /' nieaning; you proceed to com-
p. re the tw., statutes so interprete.l and declared ;
-tnd you proceed, finally, to conch.-l.. whether or

not the law confli.as with, ortranscen.ls th,. powers
which are .^.mferre.l up.m the L<.gish,tur,' which
pas«e<l It. Nothing that .'an be c.,nceive,l par-
t.ikes n.ore e.N<:lusively of th.. character of a l.val
and ju.licial operation than what I h.ive just now
. es,,Tibe,l. Again, when you act on the appell.uo

,!;hM,rr' ';';'"''■'= "'• f-"' ^'^-''-pi^^ "> the case

<>t J anitoba, the very ca.se whi..), is now in a .s....He

th,' I'illfi'/'' V'h '"'*•",'' '■'-■'■""'■ '-'«i'^'"t>'»' '"■ within
he limits of th.. rights of the Provincial L,.gis.
hiture, an, whether any reli,.f is ,l„e un,i,.r the
appellate clau.sc to those who claim it. yon hav ,1
legal ,|u,.stio„, .,r rather, in this ..ase, a mixe.l
.inesti.m ,)f law ami of fact ; Nchich circun.stanc.. it
)Nas that in.iuce.i me to insert the w.ml "tact"
in my m,.tion. conscious as I was that it was ,)nlv
on the rarest ocuisi.ms that any refen.nces of t|,at
( es.^r.pti,m wouhl be necessary. N'et it .seeme.l to
>»o that in this |.articidar instance, 1 was cm-

s rained to provi.le for ai icrgeiH^.y which mav

a iise. Now, what is the process to be gon'e
through n, .,r,ler to ivach a .-■onclusion V The first
jniyol , that very ,|nesti,m of fact, ,.r lather a
j •nixe.l ,|Uestion ,.f law ami fact. V„u h..^•e to timl
! whether any cla.s8 of the population lia.l bv law or
practi.'e at the time of the Union, any, an.l, if so
what right or privilege w itli respect to .lenomina
whet ''-■^"" •"• • '^^''''''''y- *'■ «' ' -V"" '''^^■'^ <„ (inl
and 1 ,.w It has been art'ectcl, by the leuislation
cmplaine, of ; an.l thir.lly, if so.\ou hav'e t.! Hn.l
what legislative action if; re(,uire,i to redress the
wrong. Ihe hrst two .luestifms .it any rate are
egal ami not at all political. Now, i aVer tl.at ,!
t he .leeision ,.f all legal .p.estions, it i.s imp..rtant
, that the ,.ol,tical executive should not, more than
: ran I.., avoi. e,l, arrogate to itself jiulicial powers •

dutiei'l^'- "''i!","'" '•'^'''•'""•fe"^ "f itN polltica
duties, It ,8 calle,lup,m to , leal with legal cues-

turns. It ought have the power in c.ises of .solem-
[ nity ami importance, where it may be thouirht ex-
pclient so to ,lo, to call in ai.l the ju,licial ,lepart-
ment m onler to arrive at a correct solution. The
( ec.sion that an Act is „//,„ rire., an.l its cons..,p,ont
hsallowance by the Executive are inci.lents pecu-
liar in practice t,. ..urselves. They .lo not exist in
the great exiunjile of the Republic to the south of
n.s. It IS a m.ist .lelicate functi.m, ami its exercise
nivolves most serious ulterior c.mse.iuences. The
.juesti.m IS by the .lecisi.,n of the Kx.!cutive finally
.lec.de.l. ,m.l the Act is obliterate.l an.l annulle.i;
1 he .juesti.m whether it was ,.r wa. not valid is so
iemoye,l from jmlicial cgnisance for ever. An.l
tlius by repeate.l exercises of the pow.u- of .lisal-
■,'no,'."'';i "1'. "'''"'"* *" '■'■'""''•■•' provincial legis-
,Vil •'■'";;" 1" "-"y l-'-^^ically be .leprived
of that «hich all the time may 1,,, a real rigllt ;-a
nght claimed, which may be a right justly dainied.
Ihus, one of tvvo limite.KJovernments. ..f which
It may be sai.l m :i general .sense that the sphere
of the juri.s.l,ction of the one is limite.l by the
-sphere of the jnris.licti.m (.i the other ;-.ine of
those two hmite.l (;.,vernnients, may practically
lec.de the extent of the limits, of what in a sense,
1.S .8 rival (government. That is a very .lelicate
position. It IS a litth, like the position which a
great many very g,.o,l an.l wise persons contem^
plate with grave alarm, as to the pretensi.nis
ot one church to .leci.le what are the limits of
power, as between Church and State,-to .ler-ide
tor Itself tiiese limits an.l thus, if that power be

f r

i i

ailmittoil, to arrogtitf miuIi ii>,'litH aw it j)lciwe« tn
itself. A (U'ciMJoii imikr sucli circuinBtunccs if
iiliniiMt iificsixaiilj a ;m.-i|(('irt»'il i.eciHion. 'I'licii.' is '
ii. Mi'iiMi' ill wiiicli it is tlu! (li'cisidii of a Jiarty in lii«
own I'aiiMc. And tiu'ii'foiv, foi' tiiat reason only, if
for no other, it slumlil he fo-titicil as far an |
[MPMsiiili^ liy nuutial, ilif^nilii'il and jiidifial aid.
So, In lilt; caNu ol an Kdiicalioiial a|i|it'al, aniilo^ouN
reNuitM al any ratu, may i'Iihuc : liocaiiHO liere al.so
the decision would liar judicial action, and )iidduie |
coi'ii'ive logi.slation, iiii|)osin;; that decision on the '
I'roviiue ; and would thus, according to the opinioii I
of the Doiiiinion K\ecuti\eaud Parliament, and to,
that alone, end the ([lUHtion. Now, ilo I say that in ■
all cases tlie Kxeenti\f should refer V 1 do not say
ho; my motion does not say so; my opinion is not so. |
I have referred -using language for this pui pose ;
which is recorded in the constitutions of .some of i
the inojt respected .States of the K< puMic to
solemn occasions and to important (|iicstioiis ; liut
my motion is framed in this regard in wiiat I con-
ceive to lie the spirit of the British and of our own
constitution. It is elastic ; it loaves a responsi-
liility to the Kxecutivo to ilecide on the action to
lie taken in the iiarticular case ; it deals with the
ca.si? as exceptional. My own opinion is, that when-
ever, in opposition to the continued view of a Pro-
vincial Kxecntive ami Legislature, it is contem-
plated liy the Dominion Kxi^utive to disallow a
I'rovinc.ial Act iiecause it is u/lr(t. (•('/•(■<, there ought
to lie a reference ; and also tiiat there ought to he
a reference in certain eases where the condition of
pnlilie opinion renders ex]ie(lieut a solution of legal
jii'olileius, dis.sociated from those elements of pas-
sion and exiiedieney which are, lightly or wrongly,
too often attributed to the action of politiial
bo<lies. And again, I for my part would rccoinineiid
sueii a reference in all casesof Kducational appeal -
cases which neccs.sarily evoke ihe feelings to which
'I have alluded, and to one of which, ] am frank to
say, my present motion is mainly due. Oiii'iiresciit
powers. Sir, are w holly inad<;i|uate for thi; ell'ectual
execution of the project in hand. There is no cer-
tainty — there is in ordinary cases rather an impro-
baliility — of our l^eing able to reach the .ludicial
Committee ; and as tor 11 tin; three possible appeals
or references, the Judicial ('ommittee of the Privy
Council, the Supremo ( 'ourt, and the Imperial law
ofhcers, the machinery is extremely defective.
There is nojirovision for the ropresentation of the
(liiferont interests ; there is nopro\ isionfor the at
certainniiiiit of facts ; there is no ]irovision for the
reasoned opinion of the tribunal. Xow, even where
under s|iecial provisions on our own Statute-book,
the tir.st of these three reijuisites did exist — as in the
case ot the Liijuor License Ace, where we made a
special provi-'ion fi.r a reference to tlio Sujireme
Court, and for the appearance of and iirguiiient by
opp<ising parties ; as in the case of the Manitoba
Railway crossings matter, where under a general
law the Railway Committee of the Privy
Council referreit an impc.tant constitutioi'.al
question to tlie Supreme (.'ourt, with provision,
which the law aUowed, for the argunient
by op])osing parties — even in these eases, which
conic nearest to that degree of perfection to which
I desire to attain, the results wei'e nor satisfactory ;
— why ? Because the remaining renuisite did not
exist, in such form, at any rate, that it was used.
There was no reasoned opinion ; .no grounds
M'ere stated by the tribunal for the conclusion

which it shortly gave in leply to the Kxccutive.
The lion. First .Mini.ster will recollect expressing
his own dissatisfaction with the opinion of the
Supreme (ourt in the lii|Uor license case, on that
\ery ground, and he will rememlu r that that
eircuinstance involved aproloiigaticnof the struggle
and further iiroceediugs ; until in the end, I ho
ijuestioii Was deemed settleii by all argunieilt and a
reasoned judgment (pf the .Iinlicial Committee
which had earliei- occurred ; and by an unreasoned
opinion of the s.ime triliiinal on appeal from the.
Supreme Court. I .say, the lack of this last re-
<|iiisite deprived those proceedings of their chief
valua ; they obligeil us to resort toother methods ;
tln-y left only as their result the ilisposit'on of an
isolated case, with no general application, and of
no |ierinaiieut u.s^^ It was as if some l)el[iliic oraclo
had spoken. Wecoulil not tell, beyond the limited
disposition of the case in hand, wiiat was uctually
meant, and not always even that. For my own
part, I attach little comparative impoitance to
judicial solutions, reached without argument, and
announced without reasons. This, Sir, is only com-
mon sense. The experience of nii,nkinil has
established, as the essential ingredients for
the attainment of justice between man and man,
the opposing arglnnents of the ])arties before a
tribunal, and the reasoned judgment of that tribu-
nal upon the argmnents so addres-sed to it. The
aciitest minds an.' but too apt to err unless so aided
in the formation of their judgment, and so checked
in the announcement of it. Which of us, I ask,
Would submit, in any important case of his
own, to such a method of reaching a conclusion?
.Vud how can we exjiect that the community at
large vvill submit to such a method in the (lublic
cause? Let the opposing views be stated, pre-
senteil and sifted in public, and in the jircsence of
the jiartics ; so the best materials for consideration
will be obtained. Let the conclusions thiimselves
be r(!a.soned out ; so will the judji" lent itself behest
tested and sifted, and its soiinilliess ascertained.
It miiy be said that these views, applicable to pri-
vate causes and to the ordinary transactions of
mankind, have less aiijilicatioii or none toconstitu-
tional questions, i shoulil deny, on reason, any
such view ; and I refer, in the contrary sense,
to a (|uotatiou from Bryce's recent book upon the
American (.'oiistitution, wliich shows, what one.
would have exjiected, that if there be a distinction,
it is in favcr of the application of these principles
to tins class of cases. Speaking of the illustriims
exponent of the United States constitution, Chief
Justice Marshall, that author says :

' Ohiof Justice MaislmH'!' wiirk of liiiildiii(f up and

working out tho ooiistitiition was nO(Hiiiiiili?lu'il not so

much by the decisions lie khvo as by the judKiiients in

which no expounded the principles of th.isc ihcisioiis,

judgiuerils which, tor their philo.sophical breadth, the lu-

luiiioup oxiiotness of their reiisoniiig,.'i.iid the fine political

sense which pervades tlii'in.have never been ^urpu.ssed

] mill rarely equalled by the most taniuus Juri.sts of iuoiUtii

I Kurope or of aiicieiil Ronie, Marsliall did not forget the

i duty of a juilne to decide iiolhini? more tliiiii the suit liefore

i liiui reijuires, bat be was wont to set tor tho KroiiiidH of

' his (leeiiiioii in siicli n wiiy at to .«how how they would fail

to be applied in eiu-cs not yet arisen."

I A noble function, which I wish we couhl see
I apjilied in Canada ! Now, for want of this, as I
i have said, our occasional efforts to rditain light
I have resulted less' satisfactorily than 1 couhl wish
I - sometimes jn clumsy, slow, cxjiensive, and but
I slightly fruitful proceeilings ; sometimes in absolute

t.iiliirv ; lunl alwiiyN with Iohs, for ili.^ «unt of the
.i.lo.|m.i.. |..-.,visi.,n to uhi.-li 1 invit,, t|„. Mttrnti,,,,
of tl.o HouH... I, ,.iy«-lf, luivf ol.j..,.t..l on
•fonii.r oc.iiMioiiH t,) tlio ivfi'iviicc of imup'iieil
iil.stnut (|iM«tionH for an iiiirfUMoiie.l opinion'
I think It IN ol.j.ction.il.lf. Jt iH bfttor (Imn
iiotlnng in Home oii,s.,s ; jn Moniir cMneM, I woiil<|
a<loi)t It if tl... only rosort. I l.nvu a.lvis,,,! it
'"';'"'''; '"V «.""'■' '""vi«- it i,-,,in. Itnt. nn ,i
nil.", I still lulJuTo to that view ; ami Ikmhils.. I
ii.l'R'H; to It. I pro|)oHc a moiv cxci'llcnt nay. lUlt
IhoUKli soiiir ilu'oictiiiil olpjci'tioM.s iriay Ntill ri-
iiiain to the gutr.l.Ml plan whit h I pioposo, thi-
main ohjiM'tions mv most nn.|iicMiioii,il,lv ifiuovcl
hy the adoption ot tlirsc |ir,.,'imlioiis. 'I'hc l.njaiici.
of ailvanta^:.' i.s .Ir.i.lclly on<. way, ami that Im all
that urhuinaii atlairs h,. can ,.xp,,,., t,, ,^^^.^■^^^
.Now, ,sir, our pivs..nt law pro\ idi'M a powir fo tin-
Kx.ciitiv.! to make siifh a iifVivii.c ; and such a
ivfm'iic.-niay, at thisday, he ma.lc without any
ot th.'s.! precautions, v,hilc it caiuiol he iradc with
tlwiu. My jiroposiil, therefore, involves a check and
II hiiiitalloii, MM well as an added powe •. With
reteieiice to the Iheiiietieal olijeetions to which I
have allud.'d, and which have l.een pressed vei\
nmch in the Tnited Si.ites where, liowcNcr tlieiv
IS thiH.'ardnial diirercnce, that they are not at all
cidleil ii))on to deal with this .piestion of .lisallow-
aiie.- or of ajipeal- with leferenec to the th<oietical
ol),]ei,'tion.s there raised on the (piestion as there
presented, Mr. lirycc, in the work to which I have

alluded, points out the corresp linj; disadvan- I

tii«es, even there, of the ahseiice of s.,iiie such iiro
visions. They arc :

l„.l "^^ ','^,';'"'"" "n",'' ".'"> f;>rovera.lispnt(.<l point ofconsti-
lilt iimhiw, would (.iliMi lieatMin l,„lht„|riviiteoitizo »
.ila to tin- organs of the (loverinnci,,. I ,Xv tho 'nsoif

e, t led. NolKHly iM.'iv caro to incu. the ox|'ei,so and
lioNhleot liikiiiBil heloio llic court: :iii.| ;, >!,!( whic
rai-cs it iiwy he eoiiipromiscl or drnpi,,.,!. When w„ch ,

lie Mipn 1 10 t.oiirt and is douniiiiiie, , il,c ileteniiiiiiitioii
mny he ditl.'ient tVn„i what ilie Ic-.d piulr^s oiV s 'x-
I'ectodsniMy alter that ^^■hwh h,i- l.een '..elievcd to he tho

views now dei-laied to lio erionoou,-'."
Kilt, Sir hesi.les the L'leat jiosilive iraiii of ohtaiii-
'ii« th.. Lest jiuidanee. there are otJier, ami in my
opinion, not iiniiiiportaiit gains liesides. Ours is a
pojaiiar government : and w1i,mi huriiing .iiieslioiis
arise inllaining the jHihlic mind, when agitation is
rite as to flie polilical action of tin. Kxeciitive or
[lie Legislature- which action is to he l.ased on
legal ipieslions, ohviously I.eyoiid the grasp of the
people at large :~-wheii the juMiple are on .such
Miiestioiis divided liy cries of creed and race : then
I iiiaintain that a great pu'olie good is attainable
'y the sul.nii,s.sioii of siudi hgal .piestions to
legal triounals, with all the eusloniary .securi-
ties for a .sound judgineiit ; and whose deei-
«ioiis- passionless and dignifi.-d, accepted liy
I'aeh of us as hiiidiiig in our own alfairs, involv-
ing fortiin.', fiee.loni, honor, life Itself-are most
likely to 1„, aceepteil hy u.s all in questions
ot piihlic concern. The great iJill for Local (iov-
fiiiineiit in Jrelan<l, introduced liy ,Mr. (Ihuhstoiie
111 ISlSti, and which, despite its d.'fects and 1 am i
amongst tho.se wlaj have always thought they were i
vi'iy .serious- -is, considering the conditions of its i
preparation, one of the most wonderful produc- I
tioiis of its kind, made jirovision for the estah- ■
lishiiieiit of this ]irinciple of reference in this classl
2 B

ofcMSC.K. rtHrtangedfoi a referenee, either hv
[the .Old Lieutenant of Ireland at hin oj.tion, ,ni'
the Knglish Seer,.tary of .State at his, to the .(udi-
<-iiil(oiiiniitteeof the IVivy Council of all ,,ue.M-
tloliHof H/h;, rins arising on legislative Hills and
Ae.ts of tlie hish Legislature, and it provided that
the decision shoiil.l he liiial. The Legishttlire of
<»ntanoha.i pas.seii two genual statutes, provid-
ing, in the on,, case, for the institution of declara-
I tory actions aeti.,ns for judicial .leclarations iiooii

i smdi,sul,|ccts:an.l in the ot her, f.u- a reference to tho
I eourtsot such, piestions : ami in ,-acli .'ase with
I those .se.urities which I am ,„p:ious w.^shouhl pro
yi.le f,,r,nirs,.lv,.s. 'I'ln^ hon. the.Mini.st r ,.f .Jii.sti,.e

I IS at this iiMiimnt availing him.self of the earli.-r of
' (hose Aet.s, f.Mtl- |.urpos..of t.stiiigla.foreth.'law

'■oiirts. a very important, ■oi,,stitutional,Mi,.st ion asto

: ' ;i- o:leilt on he Kxciitive power. ,S,.veral States

^ ot the L nionliave. in their constitutions, taken the

I power of referene,'. without tinsc se,uriti,.s Wo

ourselves, as I hav.! pointe.l out, have taken tho

power giiierally, with, iit the.s.t .securities We

took It specially in th,- Li.pior hi,',.nse Act, with a

poition of tli,"sc se.airities ; we took it generally in

< the lailw.iy ,ases, with ajiortion <.f tlie.se scurities.

( I hns 11 IS iM.yond our p,,w..r to urge any h.iiger

ithe theondlcal ol,|e,-tio„ ; while hy the prramsal

, which I |,,lvaii<-e, we can iiiiiiinii.se thos,' ,d.jeetions

! ami at tli,> same time a.lvance the practica! utility

<d th,- i)ro,-,.,lur... If yoii grant me a.hfinite issiij,

II lull argument, aii.l a reasone,! ju.lgineiit, in my
view the ohje.tions almost vanish,, while the
ailvantages enormously iiieiva.se. !!nt, my iiro-
I»MaI IS hy no means radical or revolutionarv
eoiii,aiLsory ,,.■ gemral. ft is hut an enahling i.ro-
liosition ; it hut ..mpoweis the Kxeciitive to ohtain

d)y a procT-lure n plete with the .■.vsential r,.,|ui.
sites tor the i.ro.lip.tion of a .sound opinion--
the yu.ws on legal (piestions of legal authorities,
lea\ liig to the Kx.rutlve, so ai.le.l, the resp,msil.ility
ot liiial action J have an ahs.duteconli.Iencc that.
It luy propo.saishouhl he decline,!, th.airst per.sons
to ivgret that dicision will he lion, gentlemen
oi.po.site My opinion is. that this is a proposal
eminently helpful to the Kxeeutive of the cuintrv
at tins tune ; hut it is eminent Iv helpful to them
' l..'eau8<- It IS eminently helpful t,") the goo,l .'overn-
1 ineiit of this country ; and it is in this .spidt that
I move the ainemlment which 1 now submit to tho
judgment of the House.

Sir .lOHX A. ^[A("I)()XAL1). In the first
I place, J a.a epl m the fullest sen.s.-, the a.ssuraneo
i of my hoii. fra.nd that his motion has not been laid
; I.e. re the Hou.se in any spirit of lio.stility to the
I A.hiiiiiistration of tim .lay. ()„ the contrary, 1 am
gratetu to the hon. gentleman f.,r having brought
(.rwar.l this subject in lli.- v.'i-y careful resolution
lie has i>r,-pare.l, ami <iiill more, f.ir the able
speech in which h,. has euforce.l the various para-
graphs ami the main object of that re.soliiti.m. It
i.s gratifying t.. know that we have now in the
House .,troiiiui..iis ..fCuia.la an hon. gentleman
who IS able to give his time an,l talents to brinuinu
bef..re the rei.ie.sentatives <.f th.. people imp,.rtant
•luestioiis of this kiii.l. When 1 first rca,l tho
hon. gentleman's ivsoluti.m hastily, it occurred to
me, as. I ilare say, it oe<:iirred to many hon gentle-
men who hear m.: now, that it was an a.lvance
towar.ls the American .sy.stem, an.l propose.l t..
t.anster the res{ionsil>ility of the Ministry of the

masmM

1 i

ilay to ft jmllcial trnmnal j but on i^canning
llio rcMoliitioii in itM ciircfiilly |)rc|Miretl tciiiiH, that
iiii|>i't'H.Hii>ii wiiH ilisHipatccI, and I naw that tlio
princiiial uhjiirt nf thr I'i'MoUitioii, aH 1 it^ail it, In
that tlif i|iu;Hti()llM Hiiliiiiitlol hy the Kxcrlltivc to
th« Judi'ial tiiliuiial hhouhl iii.' oiifnrciMl, HUMtaiiit'<l
niicl |ii'fHiiit,cil to I'arliaiiHMit, to the piililic anil to
the Crown liy the fact of this h;ual ileei.sion liuvinj^
hiH-n given. Am the hon. gentlenum lian stiiteil,
wlien a oneHtioii in Miilunitted hy tlie (Jrown to the
courtH, tlie Hiniph: aiiMwer "yes" or "no" \h most
unMatiHfa(!t(iry. It in a //roiniiiijohn iito <if the
court witlioiit giving any reHMim for tiie (leoiwion
on the (loeision wliich haw heen given. TIk! p?'o|M)-
Bition in thi.s rt;«olutioii tiuit tlie eourtM conhl he
reijuiied liy the Kxeeutive to hear eounHel, to take
evidence in ipiestions where fuets form a portion
of the subject to ho dceided, tlie faet that it
ii4 ))rovide(l that the conrtH ean and niUMt give
rea.Mons for their answer, issulKiient, in my opinion,
M'h(!ther thei'e wan or whn not any other excellence
in the reMolntic.n towariant thi.s llouwe to adopt it.
I urn strongly of the opinion that this resolution
should meet with the favorahle consideration of
the Ho\m(!. The only ohjeetion really that I see
to it it< till! fear that, the power Ixiiiig .so em]ihati-
cally given to the ('i'r)wn to insist upon reason.*!
l)eing given the Parliament of Canada, and es-
pecially the House of Connnons, may he
continually pressed and urged to refer Hills,
whether ])assed hy the Dominion Parliament or
the Provincial Legislatures, to the jmlieial tribunal.
We may have very unimportant ijuestions w hich
we would he urged by c;ertain interests to refer
to the court. Ifowever, the (iovernment of the
day must have force enough to resist any such
prt.'ssnre. That is an evil which is com])aratively
iniimporlant when you considei- the great advan-
tages of the adoption of this resolution, the prin-
ciple of it being that power is to be given to the
Kxecuti\c- an enaliling ])ower, as the Inm. gentle-
man has trulj' said -to submit any important
ipiestion to the court, anil specially on the.se
two points-- the iiuestion of disallowance, and the
(|uestion which may- and lam afraid will - as.sume
large proportions -the uihuational(|uestion. When-
ever the Iiuestion of disallowance is raised on im-
portant matters and the reasons alleged for disal-
lowance are that the Act it.self was tillrn rins,
that is, that it was beyond the competence
of the Legislature which passed it, 1 coincide
with jny hon. friend in believing that the Crown

should have the jiower of anhmitting mich n qtieii-

tion III the courts, and give the opportunity
til the autliority be il legishitive or exeiHi-
tive, which has passed the statute, to ap-
pear before such tribunals, and that all -arties
mterested, or that the ciiurl should think were
interested, slioidd have the opportmiity of being
heard. Of course my hon. fiiend (.Mr. Ulake), in
his r<'Molution, hns guarded against the supposition
that such a decision is binding on the '{<^xeciiti\e.
It is expressly stated and that is one of the
instances which shows that this resolution has
I'cen most carefully prepared that such a decision
is only for the information of the ( Jdvernment.
'J'he Kxecutive is not relieved frou' any respon-
sibility because of any answci- being given by the
tribunal. If the Kxecutive were to be lelieveil of
any sutdi responsibility, 1 should consider that a
fatal blot in the pro|iosition of my hon. fiiend. I
believe in responsible government. 1 believe in the
i'es|ionsibility of the Kxecutive. Ihit the answer
of the tribunal will be simply for the information
of the < Iovernment. The < Iovernment may dissent
from that decision, and it may be their duty to do
so if they dill'er from the concliLsion to which the
court has come. There is another point in regard
to which the coiu't must lie guarded in the mea-
sure which will be introduced not this .Session
but J hope next Session based on this resolution,
and that is, that the answer, whatever it nuiy
he, should be considered in the miture of
a judgment so far as to aUow of an apjieal
to the Judicial Committee of the Privy
('ouncil. With these remarks, I will only
say further, that I thank the hon. gentlemnn for
having iirought this resolution before the House,
as I concur with it generally, thougli holding the
right with a ficc hand to frame the measure which
will have to lit! brought down to Parliament in
accordance with it. 1 do not think there can be
any doubt as to the meaning of the motion of my
hon. friend. I think it is so ex]ilicit in its terms
that no nuestions can arise as to what its meaning
is, and, if there wei'eany doubts as to its meaning
there were none in my own mind - those donlit.s
would be removed by the lucid speech of my hon.
friend. Tluit speech is of recoid in Ihtiinonl and
will throw a clear light on the objects and the
aims of my l^in. friend (Mr. lilakc) in intioducing
the resolution.

Amendment of Mr. Blake agreed to.

OTTAWA : — Printed by IJkow.n Cilvmberun, Printer to the Qtieeu's Mo.st Excellent Majesty.