THE CANADIAN CONSTITUTION.
THE Constitution of Canada has become a standing subjed for discussion in Home-rule and Unionist speeches. The relation in which the Provincial Legislatures stand to the Central Dominion Government is regarded by Mr. Chamberlain as a relation in which the fundamental principles of Unionises are preserved unimpaired. Mr. Morley finds in the same relation a wider, freer type of Home-rule than even that proposed by Mr. Gladstone last spring. Both statesmen talk a good deal about the general aspects of the Canadian Constitution, but neither descends to the scrutiny of its details. Perhaps, then, an attempt to describe the main conditions of the Constitution of the Dominion of Canada, as set out in the British North. America Act, 1867 (30 Vic., a. 3), may not be out of place. Mr. Morley told us at Newcastle that "if anybody thinks that what is called the Canadian settlement is less favourable to freedora in an Irish legislative body than the system proposed to be estab- lished under our Bill, he is very much mistaken . . . . . . what I want you to believe is that the more the question is looked into, the more it will be seen that the control of the Irish over their own affairs would not be less under the Canadian scheme, but would be more than it was under our scheme." Perhaps this may be the result of looking into "the question ;" that it can possibly be the result of looking into the British North America Act, 1867, we cannot for a moment believe. We have never expressed any approval of Mr. Chamberlain's scheme. Indeed, we believe that it would not work as a form of local government, while as a concession to the desire for national independence, we should regard it as extremely dangerous. This opinion, however, cannot blind us to the fact that under a Bill in which the Parliament at Westminster would stand in relation to Parliaments at Dublin and Belfast, as the Parlia- ment at Ottawa does to those at Toronto and Quebec, the power of the central authority in England would be far stronger than under Mr. Gladstone's Home-rain scheme. It is a great pity that the public in general is so frightened by the notion of looking at a Statute. After all, Acts of Parliament are written in English, and are not generally half so obscure as the summaries which are often read eagerly enough, as "things a man who isn't a lawyer can understand." The prejudice, however, is invincible, and we therefore shall attempt to give as clear an account as is possible in a short space of the British North America Act, 1867, under which the Canadian Constitution was created.
For the purposes of this discussion, by far the most im- portant clause is that which sets forth the powers to be exer- cised by the Central Dominion Parliament. Clause 91 states that "it shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons [i.e., the Dominion House of Commons], to make laws for the peace, order, and good government of Canada in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces.' The clause goes on to state, "for greater certainty, but not so as to restrict the generality of the foregoing terms of this section," that the exclusive legislative authority of the Dominion Parliament extends to certain subjects, twenty- nine in all, which are then specified. The most important are the regulation of trade and commerce, the Post Office, the military and naval forces, navigation and shipping, currency, banking, savings-banks, bills of exchange, legal tender, bankruptcy, patents, marriage and divorce, "tile Criminal Law, except the constitution of Courts of criminal jurisdiction, but including the procedure in criminal matters," and "such classes of subjects as are expressly excepted in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." If we compare this clause with the corresponding clauses in the Home-rule Bill, the differences are most striking. In the Home-rule Bill the general and undefined powers of legislation over forgotten or unenumerated subjects are not reserved for the English, but are surrendered to the Irish Parliament. Since Parliamentary draftsmen are fallible beings, and not unfrequently forget the staircases in the legislative structures they build us, and since no amendment of the Act in a limiting sense would be possible, as the proposal would raise a Constitutional crisis, this point is far more significant than it seems at first sight. Then, too, the Canadian specific limitations are much more important. The marriage laws, the criminal law, the law as to bills of exchange (that is, as to the very life-blood of modern commerce), the law as to banking and the incorporation of Banks, could all of them be altered by the Irish Parliament. The Provincial Legislatures of Canada cannot touch these subjects. By Section 92, the exclusive powers of the Provincial Legislatures are defined. They are sixteen in number. In nature, they are for the most part the powers enjoyed by municipalities and counties in England, such as raising money and loans, estab- lishing and paying local officers, administering public lands, and maintaining prisons, reformatories, hospitals, and asylums. Their more important powers,—namely, those of making laws in relation to matters greater than municipal, are connected with the raising of money by any form of direct taxation and by licences, the erecting of municipal institutions in their particular Provinces, the formation of railways in the Province (this, however, is not an unlimited power), the incorporation of Companies, the solemnisation of marriages in the Province (the Provincial Legislature, we presume, could institute civil marriages, but could not legalise marriages of a new kind, say for a limited period), and property and civil rights in the Province. Most important of all, they can legislate on "the administration of justice in the Province, including the constitution, maintenance, and organisation of Pro- vincial Courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those Courts,"—that is, we presume, the Quebec Parliament could organise a Criminal Court wherever it chose, but could not deprive a prisoner of the advice of counsel, or have him tried, say, by a jury of women, though in civil actions it might, for instance, enact that only women should sit on juries. Lastly, come provisions concerning the power to impose fines, penalties, and imprisonment for any infringement of laws made by the Provincial Legislatures on the delegated subjects, and a general clause giving them power to legislate on matters "of a merely local or private nature." These powers, no doubt, might be abused, and we believe would be abused, by an Irish Parliament ; but surely it cannot be said that a Parliament without the power to alter the criminal law or procedure, is as powerful as a body which could, to put an example, make the penalty for murder a forty-shilling fine, or enact that, on proof given that the relation of debtor and creditor, or landlord and tenant, existed between a man on his trial for murder and the victim, all further criminal proceedings should be stayed, with costs payable out of the deceased's real and personal estate. We do not mean to say that the Irish Parliament would do this ; but surely a Parliament which could do it is more powerful and independent than a Parliament like the Provincial Canadian Parliaments, which could not. By Clause 93, the power to make laws as to educa- tion is given to the Provincial Legislatures, but with strict limitations, respectively preserving the rights of the Protestant and Roman Catholic minorities in regard to the Schools. The ways in which these minority rights are to be enforced are remarkably strong. How was it they did not serve as models for the provisions of the Home-rule Bill which professed to have a similar object Perhaps Mr. Parnell exercised his veto on them. In the first place, an appeal lies to the Governor- General in Council from any Protestant or Boman Catholic in regard to any right or privilege, as to education, alleged to have been infringed by a provincial authority. Next, it is enacted that if the Governor-General in Council considers that the Legislature of any Province has neglected to make the proper legislative provisions for carrying out the clauses ensuring educational freedom, or "in case of any decision of the Governor- General in Council on any appeal" not being properly executed by the provincial authority, then, but "as far only as the circumstances of each case require, the Parliament of
Canada may make remedial laws for the due execution The statesmen do not mind asking large, or even excessive of the provisions of this section, and of any decision of the Governor-General in Council under this section." This is certainly a more efficient way of securing religious liberty in education than merely giving the aggrieved parents a right to appeal to the Privy Council, unless, indeed, the Lord-Lieutenant could be got to take the matter up. Which Parliament is the more powerful,—one that can have legislation on a very vital subject passed over its head if it fails in a duty; or one over which no each right can be exer- cised ? Clause 96 is a clause still more incompatible with Mr. Morley's view of the Canadian Constitution. It runs :— "The Governor-General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia
and New Brunswick." The next clause enacts that the Judges shall be chosen from the respective Bars of the Provinces in which they are appointed. Clause 100 provides that the Judges shall be paid by the Dominion Parliament. Can it be said that a Parliament which appoints and pays its Judges, as would the Irish, is not so free as one that cannot do so ? Yet this is what Mr. Morley says. There is yet another extraordinarily important restriction on the powers of the Provincial Legislatures which has not been noticed in the discussion of this question. By Clause 90, the provisions relating to the reservation of the rights of the Crown as to "the assent to Bills, the disallowance of Acts, and the signifi- cation of pleasure on Bills reserved," which are enacted in regard to the Dominion Parliament, are made to extend also to the Provincial Legislatures. That is to say, in case a Provincial Legislature insisted on legislation conceived in a spirit opposed to the interests of the Dominion, or the spirit of the Act of 1867, the power of veto could be invoked to solve the difficulty. But this veto is not to be wielded by the English Cabinet at Westminster, and so to be a dead-letter ; but it is to be employed by the Governor-General of the Dominion,—that is, by the Prime Minister who enjoys the confidence of the Dominion House of Commons. In plain English, the Central Canadian Government has the absolute right to veto laws made by the Provincial Legislatures ; and this veto, since it is practically exercisable by the Dominion Parliament, cannot be considered as something merely nominal. Mr. Morley would tell as, perhaps, that it is never used. This may be so, but how can we tell that it has not been used simply because the Provincial Legislatures have never done anything to call for its exercise?
Such are the main provisions which mark out the limits of the respective rights of the Dominion and Provincial Legis- latures. It would not be a difficult task to show that the powers which are safely entrusted to the Canadian Provinces could not be trusted to even a strictly dependent Irish Parlia- ment. After all, the Canadian Constitution is a Federal Con- stitution, and unless we overturn and reverse the whole of our political development, we cannot make the English Constitu- tion federal. We can give any safe degree of local government to Ireland ; we cannot, if we are to profit by experience, afford to give her even a limited federal scheme of political institutions. The satisfaction of national aspirations and local government are two perfectly different things, and to call them by the same name will never help us. We cannot afford to satisfy the nationalist aspirations of Ireland. People talk of nationalist aspirations within a country as if they were something to be encouraged and stimulated. Yet, in truth, they are the most deadly source of disaster to States. The peculiar growth of the American Colonies, in a vast territory where communication was difficult, encouraged national aspirations. And with what result I—the most terrible civil war that the world has ever known. The break-up of the American Union would have meant that, in a quarter of the habitable globe, the question of peace or war should always be uncertain. Yet this fearful risk was incurred because of the existence of the nationalist aspira- tions of the South. Fortunately, the political sagacity of the North enabled them to make the necessary sacrifice. The Union was saved, the nationalist aspirations crashed, and the purely federal aspect of the Constitution modified. Let us not deceive ourselves into thinking that we can satisfy national aspirations without dangers quite as real as those against which Lincoln, Grant, and Sherman had to fight so desperately.
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