CHAPTER XXIII. THE NATURE OF CANADIAN FEDE- Vagueness of the conception of proposed unions in Canadian history-Lord Durham's definitions-The meaning of the term 'Confederation' in American history-Vague use of terms in Memorandum of 1864-J. A. Macdonald's use of the terms Federa- tion' and 'Confederation in 1865-Dorion challenges the lack of clearness Provincial rights -The Privy Council and the British North America Act-The Dominion Parliament not a delegate- The provincial parliaments not delegates-The sovereignty of the Canadian legislatures within their reference-Lord Watson's con- ception of the Act of 1867-The effect of federation on the provinces -Criticism of Lord Haldane`s definitions of Canadian federalism-- The Canadian Senate-The Canadian Cabinet-The office of lieu- tenant-governor-The Dominion power of disallowance-The history of provincial Acts which have been disallowed --Principles on which such disallowance has been based The golden age of provincial rights` --Joseph Chamberlain on the principle of respon- sible government-Sir Allen Aylesworth's dicta-Revival of dis- allowance by Mr. Doherty on principles apparently abandoned— Criticism of Mr. Doherty's position-Dicta of Mr. Justice Riddell - Cartier's conception of the power of disallowance -Delegatus non CHAPTER XXIV. THE DISTRIBUTION OF LEGISLATIVE Education Agriculture and immigration—The Dominion powers- The real position of Canadian influence in Imperial affairs-The bands of freedom-The limitations on Canadian autonomy owing to the Imperial tie-The weakness of current terms in describing the Empire-Canada's status in international law-Canada under the Crown of the United Kingdom of Great Britain and Ireland'-The 'right' of secession-The constitutional method of dissolving the Imperial connexion The League of Nations strengthens the Empire The governor-general-Legislation by the Imperial Parliament for Canada-Extra-territorial jurisdiction-Difficulties in changing the Canadian constitution-These impose severe limita- Canada not a sovereign state-Canada's status illustrated from CHAPTER I INTRODUCTION CANADIAN Constitutional development begins in the ages of absolutism and grows down the centuries. We can trace the stream of evolution with comparative ease, and though it is a long journey back to the rock of paternalism which French pioneers struck in the pathless wilderness, yet even to-day in the full flood of liberty it is possible to discern in the mingled waters something of the far-off source. Circumstances now and then changed the direction of the current, and it is quite easy to point to these; but the changes of direction could not prevent the stream from reaching inevitably the ocean of constitutional life. The persistent onflow lends a romantic fascination to Canadian history. In the spheres of political and constitutional liberty, of religious toleration, and of local autonomy within an empire, its course can be followed from point to point. To-day, political thinkers are watching a newer problem arise inexorably out of those already solved-the formal reconciliation of full Canadian citizenship with full citizenship of the British commonwealth. The government of New France was paternal absolutism. Only during the régime of Frontenac does a momentary gleam of what political philosophy would call liberty appear. Until the fall of Canada, centralized control, bureaucracy, and royal supervision characterized the administration. Nor is there any evidence that the Canadians during this period longed for any share either in central or in local government. Indeed they looked somewhat askance at the English experiments in the colonies to their south, where the constant bickerings, political B and ecclesiastical, did not tend to impress an apathetic and simple people with any desire for popular control. The British conquest did not bring to the Canadians any miraculous political conversion, and the somewhat arbitrary rule which continued in Canada to 1791 was as logical for the 'new subjects' as that under the French crown. The change of flags merely substituted, as Burke said, George III for Louis XVI. In 1791, when Canada received representative institutions such as already existed in Nova Scotia and New Brunswick, the gift was forced by the unforeseen advent of the American Loyalists; and while it conferred on French-Canadians a primary education in political freedom, it withheld the fully developed scheme of responsible government. As a matter of fact, the recognition of what appears nowadays to be the necessary corollary of representative government lay outside. the range of contemporary political thought. When responsible government in the modern sense of the term came into practice in 1849, it was not before the colonial office and the imperial government had spent many a bad quarter of an hour over a tantalizing problem of sovereignty, and the Canadians had learned in the hard school of experience, in which rebellions played a part, something of the duties which are the spiritual values of legal forms or constitutional conventions. Indeed, in Canada legal form curtailed the growth of the constitutional convention of cabinet government. The fact that the Act of Union of 1840 gave to Canada East and to Canada West equal representation, irrespective of population, in the united legislature which that Act set up, robbed Lord Elgin's experiment in 1849 of the full and complete implication of selfgovernment. With the coming of federation in 1867, Canada at last obtained the widest application of representative and responsible institutions. In relation to the growth of religious liberty it is possible to 6 trace a somewhat analogous development. It is true that a few Huguenots came to New France in the experimental stages of French colonial rule, yet as early as 1627 they were excluded by the charter granted in that year to the Company of New France, and this prohibition virtually banished protestants from the colony. Whether this injunction was due to religious intolerance or to the growing belief in the political principle cuius regio eius religio or to a blend of both is of little importance. The fact remains that New France after 1627 was developed as a Roman catholic colony with the ecclesiastical machinery of a province immediately subject to the Holy See. After the cession of Canada appearances seemed to point to a reaction in a protestant direction. For a short time it seemed possible that the new subjects' would receive a bare religious toleration. It is not surprising then, considering the letter of the law in England at the time, that there was much searching of hearts over the ambiguous phrase in the peace of Paris of 1763: The new Roman catholic subjects may profess the worship of their religion according to the rites of the Romish church, as far as the laws of Great Britain permit.' The Quebec Act of 1774 was, however, a distinct step forward. It is interesting to find the reactionary group, represented by North, opposing the leading liberals of the day, represented by Burke and Fox, in fathering and carrying through a British parliament in the eighteenth century an act which not only granted to Roman catholics the free exercise of their religion, but also gave powers to the Roman catholic church to collect the customary dues from its members by process of civil law as in the days of the French régime. Legalists, it is true, continued to play with the fact that the freedom was subject to the Elizabethan Act of Supremacy; but the concession in respect of church dues practically repealed that enactment and endowed the Roman catholic church. On the other hand, it must not be forgotten that the church of England was the |