law.1 However, even if Quebec abstained from opposing such a measure, those citizens of Quebec who did not accept the general principles governing Quebec's antagonism would be left under severe disabilities. At present there seems no available solution to the difficulties.

The crown has an undoubted prerogative right to hear appeals from the courts of the dominion. Before 1844, a colonial Act could bar that right, but when it became statutory in that year,2 it seems clear that the only method of barring it at present is by an Act of the imperial parliament or by a local Act passed with imperial approval. A Canadian Act purports to bar the right in criminal cases.3 It may bar the prerogative, but certainly it cannot bar the statutory right of appeal. Appeals lie direct to the privy council from the supreme court of Canada and from the higher provincial courts. There are no appeals as of right from the supreme court, but an appeal lies in every case by special leave. In the provinces appeals are governed by special leave or are as of right, the latter being regulated by rules laid down in orders in council or in local Acts. In 1909 Ontario proposed to limit appeals both to the supreme court and to the privy council. Appeals as of right to the latter were to disappear, and special leave was only to be granted in constitutional cases and cases of financial or political importance. The attorneygeneral pointed out that the province could not limit appeals to the supreme court, and that the privy council was not anxious to encourage them to London. The Act passed without the proposed clauses. It would appear that a colonial legislature can constitutionally bar the prerogative right, but not the

1 'Divorce' being an enumerated power exclusively granted to the dominion, it seems clear that the dominion could pass a law in relation to it of restricted scope, either on the analogy of special or private bill legislation, or as being for the peace, order, and good government of Canada'. See McCuaig and Smith v. Keith, [1878] 4 S. C. R. 648; and A. B. Keith (?) in Journal of the Society of Comparative Legislation, vol. xvi, p. 90.

27 & 8 Victoria, c. 69 (Judicial Committee Act, 1844). 3 51 Victoria, c. 43 (Revised Statutes, 1906, c. 146).

statutory right of appeal to the judicial committee under the Act of 1844. In 1920 somewhat similar proposals were mooted, also in Ontario, but were dropped. On the other hand, the privy council is trying to curtail its work in Canadian cases. It has declined to receive criminal appeals, though it has a legal right to receive them, refusing to admit an appeal on behalf of the rioters recently condemned at Winnipeg.2 It is hard to form an adequate estimate of Canadian opinion on this matter.3 As an abstract question there is as much to be said for appeals as against them. At the imperial war conference of 1918, Sir Robert Borden ventured to suggest that Canada would like to see appellate courts reduced and that the dominion should decide its own constitutional questions. His ideas were naturally influenced by the growing status of Canada, but how far they had public opinion behind them it is hard to say. There is a certain implication of inferiority in the perpetuation of the judicial committee as the final court of appeal, and the fact that the high court of Australia has dealt with difficult questions in a manner not unworthy of judicial traditions seems to point to a future when Canada might reasonably hope normally to make its own supreme court supreme in reality. On the other hand, arguments for retention based on the calm aloofness of the committee or on the rights of 'a British subject to seek justice from the crown are rather unconvincing. The former in the final analysis cast grave aspersions on the whole Canadian judiciary, and the latter recall only the rich corporation and

1 Keith, Journal of Society of Comparative Legislation, vol. xvi, p. 218. 2 Russell v. Rex (The Times, June 22, 1920).

3 See, however, W. E. Raney, Nations within the Empire' (Canadian Magazine, February 1921, pp. 291 ff.), and C. H. Tupper, The Position of the Privy Council' (Journal of Comparative Legislation, 3rd series, vol. iii, pt. iv). The benchers of the Law Society of Upper Canada interviewed the attorney-general for Ontario (W. E. Raney) on March 8, 1922, to protest against a proposed measure limiting appeals (Toronto Star, March 8, 1922).

4 Parliamentary Papers, Cd. 9177. In 1919 Lord Haldane remarked that even in topics affecting the constitution it was desirable that they should come before the supreme court of Canada before being brought to London for argument (Manitoba Initiative and Referendum Case).

forget the penurious suitor. It has been suggested that the peculiar privileges of Quebec within the federation make the right of appeal an excellent safeguard against racial strife and passion. In South Africa, however, there is much opportunity for similar eventualities, and while there is a constitutional right of appeal from the appellate division of the supreme court, the privy council has laid down the principle that only in cases of the greatest moment will it entertain appeals. The right has thus assumed only theoretical importance. Whatever the future in Canada, it must not be forgotten that the judicial committee has given the Canadian constitution its most abiding forms.

[AUTHORITIES.-A. B. Keith, Responsible Government in the Dominions (3 vols., Oxford, 1912); Imperial Unity and the Dominions (Oxford, 1916); Dominion Home Rule in Practice (Oxford, 1921); Selected Speeches and Documents on British Colonial Policy, 1763-1917 (Oxford, 1918) are standard authorities. The British North America Acts, 1867-1915, are in Kennedy, Documents of the Canadian Constitution, 1759-1915 (Oxford, 1918). For legal interpretations see A. H. F. Lefroy, Legislative Power in Canada (Toronto, 1898); Canada's Federal System (Toronto, 1913); A Short Treatise on Canadian Constitutional Law (Toronto, 1918); and The Correspondence and Reports of the Minister of Justice and Orders in Council upon the subject of Dominion and Provincial Legislation, 1867-1906. The federal and provincial parliaments issue their own Rules of Procedure'. There is no adequate modern book on the government of Canada. Sir John Bourinot, How Canada is governed (Toronto, 1895), and W. R. Riddell, The Constitution of Canada (New Haven, 1917), are useful for general purposes. The former's Parliamentary Procedure and Practice in the Dominion of Canada (ed. Flint, Toronto, 1903) is valuable. The second part of E. Porritt, The Evolution of the Dominion of Canada (Yonkers-on-Hudson, 1918) is serviceable. Lord Bryce, Modern Democracies, vol. i (London, 1921) contains an interesting study of Canadian government. The Report of Sir George Murray on the Public Business of Canada (November 30, 1912) and The Senate's Report on the Machinery of Government (July 2, 1919) are documents of importance. There is a good short summary of Canadian government as organized in April 1890 in House of Commons Papers (1890), 194, pp. 6ff. For the withholding of royal assent, see House of Lords Papers (1894), 196.]

1 Whittaker v. The Mayor and Councillors of Durban, [1920] 36 Times Law Reports, 784.

NOTE. On June 14, 1922, the dominion parliament amended the Supreme Court Act to allow appeals to the supreme court of Canada from opinions pronounced by the highest court of final resort in any province on any matter referred to it for hearing or consideration by a lieutenant-governor in council, provided that such opinions are declared by provincial statutes to be judgements of such courts of final resort and that appeals shall be therefrom as from judgements in actions.

CHAPTER XXIII

THE NATURE OF CANADIAN FEDERALISM

SUGGESTIONS looking towards some form of union among the provinces of British North America are frequent in Canadian history from 1784, when the idea was first mooted by LieutenantColonel Morse,1 to the eve of 1867. Little, however, of the nature of the suggested union can be gained from a study of the extant proposals. If we except the abortive Act of Union 2 for Upper and Lower Canada in 1822, no one except Chief Justice Smith seems to have worked out a scheme in any detail,3 and his proposals are so vague that it is impossible to decide whether he had in mind a legislative union, a confederation, or a federation. John Beverley Robinson desired to unite the provinces by giving them a common legislature and erecting them into a kingdom'. The phrase seems to point to a legislative union, and this assumption is strengthened by the emphasis which Robinson laid on the fact that the new government would be clearly distinguished from the republican institutions of the United States. There was, however, no political discussion, no examination of the nature and essence of the scheme.

With Lord Durham we are in a clearer atmosphere, and he at least defines his terms: Two kinds of union have been proposed-federal and legislative. By the first the separate legislature of each province would be preserved in its present form and retain almost all its present attributes of internal legislation, the federal legislature exercising no power save in

1 Canadian Archives Report (1884), p. liii.

2 Kennedy, op. cit., pp. 307 ff.

3 Ibid., pp. 203 ff.

4 Quoted in Egerton and Grant, op. cit., p. 147. Cf. Sewell and Robinson, Plan for a General Legislative Union of the British Provinces in North America (London, 1824).

those matters which may have been expressly ceded to it by the constituent provinces. A legislative union would imply a complete incorporation of the provinces included in it under one legislature, exercising universal and sole legislative authority over all of them in exactly the same manner as the parliament legislates alone for the whole of the British Isles.'1 By a 'federal union' Durham meant the creation of a central government to which the constituent provinces would delegate certain powers. In other words, the national government would be a delegation from the provincial governments for the carrying out of certain specific purposes. Such a conception raises the question, Can such a government be called a federal government? This question must be discussed at this point, because, as will appear later, such a discussion is germane to any consideration of the debates in the parliament of Canada in 1865.

6

Without examining the nature of political unions in the ancient world, on which historians and jurists differ, in American history such a union as that proposed by Lord Durham appears to have been called a confederation. The perpetual Confederation' of Massachusetts, Connecticut, Plymouth, and New Haven (1643-84), and Franklin's Draft for Union' in 1754, are cases in point. In both cases the general or national government was a delegate. It existed on sufferance of creating principles. The best illustration, however, is found in the Articles of confederation proposed in 1777 and ratified in 1781. Owing their immediate origin to the necessity for military union, they have in addition behind them a political philosophy based on experience. The earliest signs of democratic tendencies in North America are to be found in local government. Here was the pregnant school of political training. As a consequence it is not surprising to find a mistrust of a strong central government running through the whole conception of the union. The

1 Report, vol. ii, p. 304 (ed. Lucas).

2 Macdonald, Select Charters, vol. i, pp. 94 ff.

D d