Edward Meek, Distribution of Powers in Canadian Federal System 30AmLRev203

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Citation: 30 Am. L. Rev. 203 1896

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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 203

FEDERAL GOVERNMENT, AND THE DISTRIBUTION OFPOWERS IN THE CANADIAN FEDERAL SYSTEM.

Diversities in race, language, customs or religion, and differ-ences in the occupations and industrial pursuits of the people,where such diversities and differences are grouped in separategeographical divisions,- may give rise to a demand for localgovernments to satisfy the local wants and characteristics of theinhabitants of each of the divisions. Even where the conditionsand circumstances are practically the same throughout, theresponsibilities and duties of modern governments in extensivecountries are so numerous and varied, that a division of theirlabors and cares has been found more satisfactory to the peoplethan centralization.

Federalism,in its more perfect form, that is, - a number ofStates, each possessing a government of its own, with a generalgovernment', whose authority extends over all alike,-is amodern development. Federations have arisen in two ways:(1) Either from the granting of local self-government in someform to subordinate communities or defined localities; as in thecase of the self-governing British Colonies, having constitutionscreated by Acts of the Imperial Parliament; or, (2) from theunion of several States or Provinces under one general govern-ment, each State or Province conceding part of its legislativeand governmental sovereignty to the general government, as inthe case of the United States of America. Writers speak ofFederalism as a " division of the field of government," but themetaphor is not appropriate.

The powers assigned to the general government cover thewhole area of the field; and the limited powers possessed byeach of the local governments cover only each of the particu-lar divisions. They both operate over the same field, but inparallel planes. The plan of division of the governmental andlegislative authority under the written constitution of the United

HeinOnline -- 30 Am. L. Rev. 203 1896


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30 AMERICAN LAW REVIEW.States, between the Federal and State governments, though it pro-duces a certain uniformity by its limitations of Federal powers,and its prohibitions upon State powers, yet allows of the growthof diversity and dissimilarity in the State governments. Theframers of the Canadian constitution hoped to produce -agreater uniformity and simplicity by limiting the authority ofthe provincial legislatures, and vesting the residue in theDominion Parliament. It is generally admitted that the govern-ment of the United States has proven itself one of the mostsuccessful experiments in Federalism. Its success has, however,been attributed partly to the universal education, and to thesuperior qualifications of the American people for self-govern-ment, arising from their constant political experience. Forsimilar reasons, there is every indication that the Canadian ex-periment, though called upon to surmount greater difficulties,will be equaUy successful. Federalism is the latest and highestdevelopment of government. I say, " latest development," fornotwithstanding what historians tell us of the Achean League,the 2Etolian Confederacy, the Municipal Confederacies of freecities during the middle ages, the Hanseatic League, the GermanConfederacies of more modern times, and even the Swiss Con-federacy prior to the more recent changes in its constitution,on examination these are found to have been but little morethan treaty associations for mutual protection. True Federal-ism began with the constitution of the United States of Amer-ica; its latest development is the constitution of the Dominionof Canada.

Referring now to the Canadian Confederation Act, we observethat in dividing the powers of legislation and government, andin assigning and distributing these powers between the Federaland provincial parliaments respectively, several existing factshad to be taken into consideration.

The older provinces had existed for many years under separategovernments; one of them was inhabited almost wholly bypeople speaking the French language, and governed in civil.matters by French law. The provinces and territories werewidely separated and differently situated, with dissimilar re-sources, and engaged in dissimilar industries; each possessing



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 205special opportunities for local enterprise and development. Themaritime provinces devoted to maritime pursuits,- to fishingand mining. The Province of Ontario to agriculture, lumberingand manufacturing. The boundless prairies of the NorthwestTerritories, inviting the energies and capital of the grazer andgrain raiser; and the fisheries, forest and mineral wealth ofBritish Columbia, awaiting the influx of an industrious and en-terprising population.

The British North America Act, recognizing these considera-tions, and recognizing the practical advantages of the Britishparliamentary system of government (which the separate prov-inces had themselves possessed prior to confederation) andrecognizing the advantages -of the system of local self-govern-ment secured by the plan of Federalism existing in the UnitedStates of America, made a distribution of the legislative andexecutive powers between the Dominion Parliament and theprovincial legislatures; which, though far from perfect, isprobably an improvement upon most of the other Federal sys-tems. And yet, the difficulties experienced in settling therespective jurisdictions of the Federal and provincial authorities,have been numerous and expensive, - and they are not yet ended.New questions continue to arise, and there will be new conflicts,but the courts will determine each of these questions in thefuture, as they have already determined those questions whichhave arisen in the past, by interpreting the language and declar-ing the meaning of the apparently conflicting sections of theacts which embody the Canadian constitution.

The system of division and distribution of authority betweenthe Federal Parliament and the provincial legislatures in Canadacan be better considered by giving the two sections of the Actwhich deal particularly with such division and distribution,entire, and by placing these sections, as they are in the Act,side by side. I will do this. And after some explanatorycomments, I will briefly compare the Canadian plan of divisionwith the American plan of division, and will endeavor to showwherein they differ, and wherein they resemble each other;and in what particulars either plan seems preferable to theother.



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30 AMERICAN LAW REVIEW.

DISTRIBUTION OF LEGISLATIVE POWERS.

Powers of the Parliamentof Canada."SEc. 91. It shall be lawful for the"Queen, by and with the advice and

"consent of the Senate and House of"Commonsto make lawsfor the peace,"order and good government of Can-"ada, in relation to all matters not"coming within the classes of sub-,jectsby this Act assigned exclusively"to the Legislatures of the Provinces;" and for greater certainty, but not so" as to restrict the generality of the

foregoing terms of this section, it is"hereby declared that (notwithstand-" Ing anything in this Act) the exclu-" sive legislative authority of the Par-"liament of Canada extends to all"matters coming within the classes" of subjects next hereinafter enumer-" ated; that is to say:-" 1. The public debt and property.4 2. The regulation of trade and

" commerce.",3. The raising of money by any

"mode or system of taxation."4. The borrowing of money on the

" public credit.5. Postal service.

"6. The census and statistics."47. The militia, military and naval

"service and defense."8. The fixing of and providing for

"the salaries and allowances"of civil and other officers of"the government of Canada.

"19. Beacons, buoys, light-house" and Sable Island.

" 10. Navigation and shipping."I1. Quarantine and the establish-

"ment and maintenance of"marine hospitals.

.112. Sea coast and inland fisheries."13. Ferries between a Province

"and any British or foreign"country or between two"Provinces.

Exclusive Powers of ProvincialLegis-latures.

" SEc. 92. In each Province the"Legislature may exclusively make" laws In relation to matters coming"within the classes of subjects next"hereinafter enumerated, that is to

say:-"1. The amendment from time to

" time notwithstanding any-"thing in this act, of the con-"stitution of the Province,"except as regards the office"of Lieutenant-Governor.

"2. Direct taxation within the Prov-"ince in order to the raising"of revenue for provincial"purposes.

"3. The borrowing of money on"tthe sole credit of the Prov-"ince.

"4. The establishment and tenure of"provincial offices and the"appointment and payment" of provincial officers.

"15. The management and sale of the"t Public Lands belonging to"the Province and of the"timber and wood thereon.

"6. The establishment, maintenance,and management of public"and reformatory prisons in"and -for he Province.

"7. The establishment, maintenance"and management of hospi-"tals, asylums, charities, and"eleemosynary institutions in"and for the Province, other"than marine hospitals.

"8. Municipal institutions In the"Province.

"9. Shop, saloon, tavern, auctioneer"and other licenses in order", to the raising of a revenue"1 or provincial, local or"municipal purposes.



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 207"'14. Currency and coinage."15. Banking, incorporation of banks

"and the issue of paper"money.

"116. Savings' banks." 17. Weights and measures."418. Bills of exchange and promis-

t,ory notes.1119. Interest."20. Legal tender."21. Bankruptcy and insolvency."22. Patents of invention and dis-

" covery."123. Copyrights."24. Indians and land reserved for"the Indians."25. Naturalization and aliens."26. Marriage and divorce."27. The criminal law, except the

"constitution of courts of"criminal jurisdiction, but"including the procedure in"criminal matters.

"28. The establishment, maintenance"and management of peniten-"tiaries."29. Such classes of subjects as are"expressly excepted in the"enumeration 6)fhe classes",of subjects by this Act"1 ssigned exclusively to the"legislatures of the Prov-"inces.

"And any matter coming within any"of the classes of subjects enumer-"ated in this section shall not be"deemed to come within the class of"matters of a local or private nature"comprised in the enumeration of"the classes of subjects by this Act"assigned exclusively to the legisla-"tures of the Provinces."

"10. Local works and undertakings"other than such as are of"the following classes: -

"(a) Lines of steam or other"ships, railways, canals, tele-"graphs, and other works,"andundertakings connecting"the Province with any other"or others of the Provinces,"or extending beyond the'limits of the Province.

" (b) Lines of steamships"between the Province and"any British or foreign"country."1(c) Such works as, al-"though wholly situate with-"in the Province are before"or after their execution"declared by the Parliament"of Canada to be for the gen-"eral advantage of Canada,"or for the advantage of two"or more of the Provinces.

"t11. The incorporation of companies"with provincial objects.

"12. The solemnization of marriage"Iin the Province.

"13. Property and civil rights in the"Province.

"14. The administration of justice In"the Province, including the"constitution, maintenance"and organization of provin-"cial courts, both of civil and"of criminal jurisdiction, and"including procedure in civil"matters in those courts.

"15. The imposition of punishment by"fine, penalty or imprison-"ment for enforcing any law"of the Province made in re-"lation to any matter coming"within any of the classes of"subjects enumerated in this"section.

" 16. Generally all matters of a merely"local or private nature intIthe Province.)



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30 AMERICAN LAW REVIEW.The two lists do not cover, and are not intended to cover, the

whole field of legislation and government; but the two sectionstaken together and in connection with a few other sections,which I will refer to later,- practically embrace the whole area.The intention of the Act seems to be that the jurisdiction of theprovincial legislatures shall be confined to the 16 classes ofsubjects named in section 92, and that it shall not extend to anyof the classes named in section 91.And, as section 91 confers upon the Federal Parliament powerto legislate generally, on al l matters " for the peace, order andgood government of Canada," with the exception of the 16classes of subjects over which the provincial legislatures aregiven exclusive jurisdiction,- it follows that the residuum oflegislative authority is vested in the Parliament of Canada.Thus, the whole field of legislation and government is coveredby the powers respectively conferred upon and vested in theParliament of Canada and the provincial legislatures. 1It will be observed that some of the 16 classes of subjectsenumerated in section 92, are limited by the exceptions andrestrictions attached to them, and that the full scope of the lan-guage used in describing each of these 16 classes of subjects, isfurther limited by the interpretation to be placed upon each ofthe 29 subjects of legislation enumerated in section 91; and thatthe meaning to be given to the sixteenth paragraph of section92, is specially limited by the concluding proviso of the twenty-ninth paragraph of section 91. The main purpose of the tw osections, when read together, would seem to be to limit, restrictand define the power and jurisdiction of the provincial legisla-tures, and to vest all the remainder or residuum of the legislativepower and authority in the Dominion Parliament. The inten-tion of the Act in setting out the 29 classes of subjects given insection 91, is not for the purpose of limiting the jurisdiction ofthe Federal Parliament and government, but for the purpose ofmore definitely limiting and restricting the scope and extent ofthe authority of the provincial legislatures and governments.

It will be observed also, that the Act makes no provision forI Bank of Toronto v. Lamb, 12 Appeal Cases, 587.



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 209plebiscitary legislation, nor yet, for the reference of proposedlaws or constitutional questions to, or their ratification by, thepeople. Any such method of enacting laws or constitutionalamendments, would be unconstitutional under the CanadianParliamentary system. There is nothing reserved. The wholelegislative power is vested in the legislatures of the Provinces, orin the Parliament of Canada.And it must be borne in mind that under a parliamentary sys-tem, as a general rule, the sphere of authority of the executivedepartment of a government, is co-extensive and co-terminouswith the range of authority of the legislative department of thatgovernment- the executive being, in reality, a committee of thelegislature.It will be observed too that unlimited power is given to theprovincial lqgislatures, to amend their respective constitutions,except as regards the office of Lieutenant-Governor. This doesnot mean that the Provinces can amend so as to encroach uponthe Federal jurisdiction, nor yet so as to increase their limitedpowers. The words, " Constitution of the Province," mean,more particularly, the machinery of government, both legislativeand executive, and its mode of operation.Whether there should be two houses, or only one, the numberof members of the Legislative Assembly, its duration, the fre-quency of sessions, the number of members of the ExecutiveCouncil, their respective jurisdictions and duties, and mattersof a like nature, are provincial constitutional matters, and theexisting provisions and directions as to these, can be amended orchanged by the provincial legislatures, themselves.

The framers of the Confederation Act probably intended tosecure the Federal Parliament such powers as would give itsupreme and exclusive control over al l matters of general ornational concern, and over as many matters as possible, in whichuniformity of law is desirable; but, at the same time, they hadto recognize the existing conditions in , and to satisfy the localdesires and sentiments of, the Provinces confederating. Inmaking the distribution, they anxiously endeavored to so limitand define the provincial jurisdictions, that there might be no con-flict of authority, nor yet, any concurrent jurisdiction - that theVOL. XXX. 14



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30 AMERICAN LAW REVIEW.respective jurisdictions of the Dominion and the Provinces shouldeach be exclusive.

But herein lies one of the main difficulties in framing a Fed-eral constitution. Language is too imperfect to accomplish suchan object. A complete division cannot be effected.That they did not succeed in making a clear and definite dis-

tribution, the many contests in our courts, since confederation,-bear witness.Some of the decisions which deal with questions of conflict-ing and concurrent jurisdiction, are interesting and instructiveto the constitutional lawyer; but I nmust confine myself to thosewhich establishrules of interpretation. One of the most import-ant rules or methods of interpretation, when the validity of a pro-vincial law is under consideration, is thus stated, - " The firstquestion for the court to consider seems to be whether the Actfalls within any of the classes of the subjects enumerated insection 92. If it does not, the Act cannot be of any validity,and no other question can arise. If, prima facie, the Act inquestion falls within one of the classes of section 92, then thefurther question arises, does it also fall within one of the classesof section 91; and is the power of the Provincial Legislaturethereby overborne?" IWhen the constitutionality of a Federal act is in question,the same method of determining its validity must be adopted.The first question for the court to consider, would be whetherthe act falls within any of the classes of subjects enumeratedin section 92. If it does not, the inquiry need not extend anyfurther. The act will be valid. If, on the other hand, it isfound apparently to fall within any of the classes of section 92,and at the same time within the scope of section 91, the ques-tion for the court to determine will be, -does the Federalauthority override the provincial authority? And to what extent?

The two jurisdictions cannot be concurrent in the sense thatboth may be exercised at the same time over the same subjectmatter. Such a state of things would produce friction and con-flict, which would render any constitution unworkable.

Citizens v. Parsons, 7 Appeal Cases, p. 107.



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 211But in the early cases the doctrine of " Exclusive Jurisdic-

tion " seems to have been carried too far:-In Valin v. Langlois,1 the court said: " If the subject-

matter is within the jurisdiction of the Dominion Parliament, itis not within the jurisdiction of the Provincial Parliaments.That which is excluded by section 91, from the jurisdiction ofthe Dominion Parliament, is not anything else than matterscoming within the classes of subjects assigned exclusively to thelegislatures of the Provinces."

But in Cushing v. Depew, the court said: " It is a neces-sary implication that the Imperial Statute in assigning to theDominion Parliament the subjects of ' bankruptcy and insolv-ency,' intended to confer on it legislative power to interferewith ' property and civil rights' and procedure within theProvinces, in so far as a general law relating to bankruptcy andinsolvency might affect property and civil rights and procedurein the Provinces."

Then came The Citizens Insurance 'Co. v. Parsons, 8 inwhich several aspects of the division of authority between theprovincial legislatures and the Parliament of Canada, and themethods of interpretation and reconciliation to be applied to theapparently conflicting parts, were considered.

In dealing with the question of exclusive jurisdiction, thecourt said: " But it must have been foreseen that a sharp anddefinite distinction had not been and could not be attained,-that some of the classes of subjects assigned to the provinciallegislatures, unavoidably ran into and were embraced by someof the enumerated classes of section 91, -hence, an endeavorappears to have been made to provide for cases of apparentconflict.

"I t is obvious that in some cases where this apparent conflictexists, the statute could not have intended that the powersexclusively assigned to the Provincial Legislatures, should beabsorbed in those given to the Dominion Parliament. Take asone instance, - 'Marriage and Divorce,' contained in the

5 Privy Council Appeal Cases, 2 5 Privy Council Appeal Cases,page 115. page 415.

3 7 Appeal Cases, page 107.



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30 AMERICAN LAW REVIEW.enumeration of subjects in section 91 ; it is evident that solem-nization of marriage would come within this general description;yet,- 'Solemnization of Marriage in the Provinces,' isenumerated among the classes of subjects in section 92, and noone can doubt that this subject is still within the exclusiveauthority of the Legislatures of the Provinces.

" So, - 'The raising of money by any mode or system oftaxation,' - is among the subjects in section 91; but, though

-the description is sufficiently general to include - ' Direct taxa-tion within the Provinces in order to the raisingof a revenue forprovincialpurposes,' - assigned to the provincial legislatures bysection 92, -it obviously could not have been intended that inthis instance also, the general power should override the particu-lar one. ' In these cases, it is the duty of the courts, howeverdifficult it may be, to ascertain in what degree and to whatextent, authority to deal with matters falling within these classesof subjects exists in each legislature and to define in the particu-lar case the limits of their respective powers. It could not havebeen intended that conflicts should exist and in order to preventsuch results, the two sections must be read together, and thelanguage of one interpreted, and where necessary modified bythat of the other."

In Nodge v. The Queen,1 the court said: " Subjects which inone aspect and for one purpose fall within section 92, may inanother aspect and for another purpose fall within section 91."

These and some other decisions have established the princi-ples:-

(1) That although the greatest care was taken in framing theact to prevent any conflict of jurisdiction between the Provincesand the Dominion, -yet the respective jurisdictions cannot besaid to be exclusive of each other in all matters.

And (2) That where apparent conflicts occur, the provin-cial authority is not necessarily overborne by the Federal author-ity, nor must it be concluded that there is concurrent jurisdictionexercisible by both authorities at the same time, - but thecourts must determine which authority shall prevail, by construing

9 Privy Council Appeal Cases, page 130.



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 213the two sections together, and interpreting them so as best to carryout the general policy and intention of the Confederation Act.This may be illustrated by a quotation from the decision in therecent case of The Attorney-General of Ontario v. TheAttorney-General of the Dominion of Canada,' where thequestion under consideration was the constitutionality of anOntario statute containing some insolvency clauses,- the valid-ity of which were maintained on the ground that the disputedclauses dealt with "property and civil rights in the Province "and were therefore within the authority of the provincial legis-lature, there being no Federal bankruptcy law in existence,-the Committee said: -I" Their lordships do not doubt that itwould be open to the Dominion Parliament to deal with suchmatters as part of a bankruptcy law, and the provincial legis-latures would doubtless then be precluded from interfering withthis legislation inasmuch as such interference would affect thebankruptcy law of the Dominion Parliament, but it does notfollow that such subjects as might properly be treated as withinthe powers of the Dominion Parliament, are excluded from thelegislative authority of the provincial legislatures, when thereis no Bankruptcy or Insolvency legislation of the DominionParliament in existence."

The American decisions,- the results of American expe-rience, on this same subject,- no doubt had an influence inproducing this judgment of the Judicial Committee.

But this decision does not establish the principle of concurrentjurisdiction, exercisible by both authorities at the same time;-nor that the non-exercise of a power by one legislature, ipsofacto, leaves the field open to be occupied by the other. It onlyestablishes the principle that either the Federal Parliament orthe provincial legislatures may legislate to the fullest extenton any subject committed to either, provided such legislationdoes not interfere with any valid existing laws enacted by theother a'uthority, and subject to the condition that such legisla-tion may subsequently be rendered invalid by enactments of theother authority, within the scope or limits of its powers.

Privy Council Appeal Cases for 1894, page 200.



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 215Supreme Court of Canada, are appointed and maintained by theFederal government. It is a single judicial system, but withseparate courts for different classes of judicial work.In the Provinces of Ontario, New Brunswick, Manitoba andBritish Columbia, the Provincial Parliaments consist of a Lieu-tenant-Governor and one House, styled the "LegislativeAssembly," or " House of Assembly; " while in Quebec, NovaScotia and Prince Edward Island, it consists of a Lieutenant-Governor and two Houses, styled the "Legislative Council "and "Legislative Assembly," respectively. In each of theProvinces, the Executive consists of the Lieutenant-Governorand an " Executive Council," the Executive Council being com-posed of the heads of the various departments of the provincialgovernments.

The Legislative Councils,- in the Provinces retaining Legis-lative Councils,- and the Executive Councils in all of the Prov-inces (according to the literal reading of the Act),- areappointed by the respective Lieutenant-Governors. But here, astranger to the practical working of the British constitutionwould be misled by adopting the literal reading. Neither thelegislative councilors, nor the Executive Councils are soappointed. The Executive Council in each of the Provinces isthe " cabinet" or " ministry." And the ministry in eachProvince is chosen by the majority of the members of the Legis-lative Assembly. And the legislative councillors,- whereLegislative Councils exist,- are appointed by the ProvincialPremier and his Cabinet, in like manner as Senators areappointed by the Premier of the Dominion. Legislative coun-cillors, like senators, hold office for life and are liable to the samedisqualifications, as senators.

These are the principal parts of the Canadian constitution,relating to the division and distribution of legislative and exec-utive authority between the Parliament of Canada and the Pro-vincial Parliaments. A comparison of its principal Federalfeatures with those of the constitution of the United States ofAmerica, must of necessity, be limited and condensed.

1. The first important distinction is that under the Americanconstitution, the residue of the legislative, and perhaps of the



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executive powers, remains with the States, or with the people;while, under the Canadian system, the residue is with the Fed-eral Parliament and Government or with the Imperial Parlia-ment.

The limitations and restrictions placed upon the powers ofCongress and of the Federal executive, by the constitution, had(it was thought), at times, seriously hampered and embarrassedthese departments in the exercise of the necessary operations andfunctions of legislation and government. The Canadian consti-tution was framed just at the close of the war with the Confed-erate States.

The doctrine of " State rights," was regarded as the cause ofor as the main pretext for, the Southern secession. This facthad an influence on the framers of the Canadian constitution,and probably caused the adoption of the opposite system, bywhich provincial powers are strictly limited, and the residuumleft with the Federal Parliament.

2. The American system contains three independent divisionsor departments of government,- the legislative, the executiveand the judicial. The Canadian system contains, in reality,only two independent departments, the legislative and thejudicial. The executive being merely a committee of, anddependent upon the legislatures.

Under the American system, the executive may or may not bein harmony with, and may or may not have the confidence of themajority of the people's representatives in Congress. It is in-dependent of them, and does not seek their smile of approval, ortremble at their frown of displeasure. Under the Canadian sys-tem the executive must always be in harmony with and mustalways possess the confidence of a majority of the people's rep-resentatives in Parliament; when it loses this confidence, it mustgive place to an executive supported by the majority of themembers of the elective branch of Parliament.

The executive is, therefore, not an independent department,and has no independent power, except at a crisis. Whendefeated on any question of policy, it may dissolve the electivebranch of Parliament, and appeal to the people for a new electionof representatives. If sustained, by a majority of the newly



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 217elected representatives, it will remain in office; if not sustainedit must resign.

3. The provision in the American constitution,- requiringthe concurrence of three-fourths of the States in the ratificationof any proposed amendment,- though modified to a considerableextent, by congressional legislation, built upon those expressand implied provisions and principles which relate to the nationallegislature and national government,- has, in the opinion ofsome critics, injuriously retarded the natural growth and properdevelopment of that instrument.

Those parts of the Canadian constitution which do not affectprovincial rights, can at any time be amended by Act of theDominion Parliament, ratified, where ratification may be nec-essary,by the Imperial Parliament.

4' In preference to the plebiscitary method of framing andamending State constitutions, or of requiring such amendmentsto be sanctioned and ratified by popular vote, the Canadian sys-tem provides that the constitution of the Provinces may beamended by the provincial legislatures themselves, except inone particular, and, of course, within the limits of theconstituting act.

5. The American system of government, as expounded byMr. Justice Story 1 and other constitutional writers, appears to bebased upon the fundamental principle that the people are sover-eign, and that all the institutions of government are merelyinstruments or agents of the sovereign people. Under theCanadian parliamentary system, it is different. Sovereignty isvested in the Dominion Parliament and in the legislatures of theProvinces, - composed of representatives chosen by the peopleto perform the work of legislation and government. The par-liamentary system is based on the assumption that legislation isa science requiring special skill and experience, and the repre-sentatives chosen are supposed to possess the requisite skill andexperience to perform the work of legislation, and to choosefrom among themselves, persons qualified to perform the dutiesof government. Plebiscitary legislation has no place in, and is,in fact, repugnant to, the representative parliamentary system.

I Story on the constitution, Sec. 208.



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6. The provision that the laws passed by Congress under anyof the expressed or implied powers conferred upon it by theconstitution, are the supreme laws of the land, and that Statelaws in conflict with any of these, or repugnant to them, areinvalid, and the wide meaning given to this provision by judicialinterpretation, is one very important feature in which theAmerican system differs from the Canadian system.

In Canada, it does not follow that a Federal law, even whenapparently within one of the Federal powers, must necessarilyoverride a provincial law which is apparently within one of theprovincial powers. The courts having held, as I have alreadyshown, that the provincial powers must have full and fair inter-pretation, having regard to the meaning and intention of thewhole act, and to the plan of division of authority intended tobe thereby created. This provision of the American constitu-tion, tends therefore more towards creating a supremacy of theFederal government over the State governments, than any cen-tralizing principle or provincial restriction to be found in theCanadian system.7. There is, however, in the Canadian Act, the power of dis-allowance by the Dominion government of provincial legislationwhich encroaches upon, or interferes with Federal powers.This provision gives a supremacy to the Dominion authorityover provincial legislatures, somewhat similar in effect to thesupremacy of congressional legislation over State legislation -just described. The former being exercised by the Federalexecutive, - the latter by the judiciary, - but on substantiallythe same principles in both cases.8. The very expansive jurisdiction of the Federal courts inthe double judicial system of the United States, also exercisesan absorbing influence in favor of the Federal authority, whichdoes not exist under the single judicial system operating inCanada.

9. Experience has shown that such subjects as " Banking,""The Incorporation of Banks," and " The Regulation of Banksand Savings Banks," - institutions under the control of cap-italists, and in the management of which it is of the utmostimportance that the public should have the highest security, -



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 219and "the issue of paper money and legal tender," -so in-dispensable in the conduct of business transactions, - are allmatters which should be under the control of the highest author-ity in the nation, not merely for the sake of uniformity (whichin itself is an important consideration, - but in order that thepublic may have the best security, and that the financially power-ful and grasping may be controlled by the strongest power.

The framers of the Canadian constitution profited by theexperience of the United States and other countries in dealingwith these matters, and placed them under the control of theDominion Parliament.

10. The complications liable to arise from leaving such sub-jects as " Interest," " Promissory Notes," and " Bills of Ex-change," - under the control of numerous local legislatures,were also avoided by placing these, along with " the regulationof trade and commerce," subjects embracing nearly the wholebody of mercantile law, exclusively under the Federal authority.

11. The numerous and dissimilar divorce laws of the States,and the entanglements and difficulties which have resulted, wasa lesson to Canadian statesmen, which they did not fail to profitby, consequently the subject of "Marriage and Divorce," isplaced by the Canadian constitution under the jurisdiction ofthe Dominion Parliament.12. The whole of criminal law and the procedure in criminalmatters, - subjects upon which it is in the interest of societythat there should be no diversity or uncertainty, and whichought pre-eminently to be the same throughout the whole extentof any nation, was also wisely vested in the Dominion Parlia-ment.

In these respects, the Canadian system of government and theCanadian system of Federalism, differ widely from the systemof government and Federalism in operation in the United Statesof America. But in many aspects and particulars, the two sys-tems are very similar, the Canadian being, - to a certain ex-tent,- a copy of the American; or probably it would be moreaccurate to say that both systems are modifications of the quasi-Federal system, under which the colonies and provinces of theBritish Empire are united with the mother country.



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1. In both countries, such subjects as " The Army and Navy,"Militia, Navigation and Shipping, Marine and Fisheries, Customsand Excise, Currency and Coinage, Naturalization, Postal Ser-vice, Patents of Invention, Copyrights, Trade-marks, Weightsand Measures, Bankruptcy and Insolvency, Commerce, LegalTender, and Indian Affairs, - are made Federal matters.2. In both, the powers of legislation and government,- bothFederal and local, are limited and restricted by a written consti-tution.

3. In both, the judiciary are the interpreters of the constitu-tion, and of each of its provisions.

4. In both, the courts must decide on the constitutionality ofall acts, both Federal and local, when their validity is ques-tioned in actions, or a case is submitted.5. In both countries, the tendency of legislation and judicialinterpretation, does not seem to be so much in the direction ofcreating a sharp line of division between the Federal and localauthorities, as it does in the direction of making the State andprovincial governments subordinate to the Federal government.

6. State sovereignty and State autonomy have in manyrespects become less marked than formerly, and the .subordinationof the State governments to the Federal government, seems nowto be more real than the subordination of the provincial govern-ments to the Federal government in Canada. In other words,the centralizing tendency seems greater in the United States thanin Canada. The Canadian act embraces the constitution both ofthe Dominion and of the Provinces, in one instrument, whilethe constitution of the United States provides simply for theFederal authorities, leaving the States (subject to certain restric-tions and prohibitions), to frame constitutions of their own.

Placing the two instruments side by side, it will be observedthat there are no prohibitory provisions in the Canadian consti-tution, - corresponding to the prohibitory clauses in the Amer-ican constitution.

The object of the Canadian instrument is simply to make asclear and definite a division as possible of the powers of legisla-tion and government, between the Federal and provincial author-ities respectively, while the object of the American instrument is



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DISTRIBUTION OF POWERS IN CANADIAN FEDERAL SYSTEM. 221to allot certain Federal powers of legislation and government tothe different bodies named in it, and at the same time, to pro-hibit the exercise by them and by the States of certain otherspecified powers.The framers of the American constitution did not attempt theimpossible. There is not the same efforts to make the legisla-tive powers of the Federal and State authorities exclusive ofeach other in the American instrument, that we find in theCanadian instrument.

In determining the constitutionality of a Federal law, theAmerican court has only one question to consider, viz. : " Is thelaw in question, within the expressed or implied powers con-ferred by the Federal constitution? While in determining thevalidity of a State law, the process of investigation is the sameas in determining the validity of a provincial law in Canada,there are two questions to be considered, viz.: (1) Does thestatute violate any of the provisions of the Federal constitution?and (2) Is it within any of the powers conferred by the Stateconstitution?

Written constitutions, like all other human structures and con-trivances, are subject to the universal law of change and decay.They can only be useful to the extent to which their framerscould foresee and provide for future wants and future exigencies.They may have been reasonably well adapted to the politicalconditions existing at the time of their formation, but nationalgrowth and political change are continually going on, especiallyin a new and changing society, and constitutions do not changeof themselves. Regarded as phases in the political life of a na-tion, they are only general temporary guides at best. As soonas adopted they begin to grow old, and obstructive of politicalprogress. Many of their provisions become chafing or cramping,and must be modified and expanded by some vital power in thenation, - omnipotent and irresistible, - capable of bursting theframework, or of readjusting and adapting it to the requirementsof the living and active forces of the Commonwealth.

The British constitution and the American constitution bothfurnish examples of this. Parliament is continually changingthe former, and the latter has been vastly modified and ex-



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panded by legislation and by judicial interpretation. And theCanadian constitution must pass through the same ordeal. Justas a man does not mould himself into the shape of the coat hewears, but the coat into the shape of the wearer, so it is withconstitutions. They must adapt themselves to the wants andrequirements, and to the growth and development of the nation.And when old and worn out, they must be replaced by some-thing new.

The sovereign power should be lodged in some authority pos-sessing the highest political wisdom in the nation, with sufficientinertia to resist changes instigated by volatile caprice or tempo-rary excitement, but at the same time capable of changing theconstitution, as changes become necessary. An unchangeableconstitution breeds revolutions, and one too difficult of changemay provoke unnecessary commotion and violence, or retardpolitical development.

The Parliament of Great Britain is untrammeled by a writtenconstitution, so necessary in a Federal system. It is theembodiment of the national sovereignty, and can change theconstitution at any time, as it has frequently done in the past.

The Canadian constitution is the application of the parlia-mentary system to the Federal system, or the attempted fusionof the two systems. But it contains no provision for alteringthe Federal compact between the Dominion and the Provinces.This can only be done by the Imperial Parliament, at the requestor with the consent of the Dominion Parliament and such of theprovincial parliaments as may be concerned.

But, with al l its imperfections, it is another achievement infavor of the Federal system, the growth of which has been soprominent a feature in the political movements of this century.

EDWARD MEEK.TORONTO, CANADA.

Documents

Edward Meek, Distribution of Powers in Canadian Federal System 30AmLRev203