the people of the provinces had not the full enjoyment of their civil rights with reference to those subjects within their welldefined jurisdiction.1

The divergence of opinion is not one merely between two ministers of justice. Professor Lefroy, with a strong catena of cases behind him, maintained that the courts could not disallow a dominion or provincial Act' merely because it may affect injuriously private rights, or destroy vested rights, or be otherwise unjust or contrary to sound principles of legislature '.2 Mr. Justice Riddell, in a famous judgement, lays down the principle that 'the legislature within its jurisdiction can do everything which is not naturally impossible, and is restrained by no rule human or divine. . . . The prohibition " Thou shalt not steal legal force upon the sovereign body, and there would be no necessity for compensation to be given.' The courts may, and often must, determine whether or not any Act is constitutional; but once a decision is arrived at establishing the right of a province to legislate on the subject-matter of the Act arguments founded on alleged hardship or injustice can have no weight 2.4

...

3

has no

On the one hand is the opinion which holds that the provinces of Canada are sovereign within their established spheres, and that a court, and a fortiori the dominion cabinet, ought not to disallow a provincial Act except when it is clearly unconstitutional. On the other hand is the opinion which holds that the dominion cabinet can veto a provincial Act, otherwise intra vires, when it comes within such description as that given by Mr. Doherty or Professor Lefroy.

Lay opinion may be of little worth, but certain criticisms can

1 Attorney-general for Ontario to the governor-general of Canada, December 9, 1909. 2 Op. cit., p. 70.

3 Florence Mining Company v. The Cobalt Lake Mining Company (1909), 18 Ontario Law Reports, 257.

4 Moss C.J. in ibid., p. 293. See inter alia Mr. Justice Riddell's The Constitution of Canada, and the valuable notes on chapter iii.

be submitted. If the constitution is similar in principle to that of the United Kingdom',1 and if the provincial legislatures are in reality what the privy council has already defined them to be -sovereign powers with as full and ample authority as the imperial parliament within their jurisdictions certain conclusions seem to follow. The rule of British constitutional law must hold that, granted the legislative power, it is impossible to question the justice of the legislation. This is Mr. Justice Riddell's opinion. Redress lies with the people, who are the best judges of the laws they are governed by '.2 This conception, too, fits in with a federal idea of the nature of Canadian government, suggested, as we have seen, by Lord Watson. Of course, it would not destroy a federal constitution had the Canadian constitution contained a clause like that in the constitution of the United States, prohibiting the provinces from impairing the obligation of contracts or from interfering with matters within Mr. Doherty's description. The suggestion merely is this: once it is clear that an Act is constitutional, then its consequences and results in actual life are open to judgement by the electorate alone.

3

On the other hand, it is submitted that, if Mr. Doherty's position is the correct one, then the federal idea is overthrown, for the legislatures of the provinces cease to be the bodies described by the privy council and take that subordinate position which Macdonald meant them to hold and Professor Dicey appears to believe they possess. It must not be forgotten that it is possible for such Acts as Mr. Doherty has in mind to be drawn into a clearly defined constitutional issue, and dis

1 Cf. Edward Blake : A single line imported into the system that complex and somewhat indefinite aggregate called the British constitution' (St. Catharine's Milling and Lumber Co. v. The Queen, 14 App. Cas. 46).

2 Riddell, op. cit., p. 98. Mr. Justice Riddell's opinion was approved by the court of appeal for Ontario and by the judicial committee of the privy council (ibid., p. 112). 3 Article I, s. 10.

4 Law of the Constitution (8th ed.), chap. iii. Cf. Laski, The Problem of Sovereignty, pp. 267 ff.

allowed because they may infringe on the dominion power to legislate for the peace, order, and good government of Canada'. That is a matter for interpretation legally constituted, and it does not appear open to the courts in this connexion to substitute their own opinion whether a particular enactment was calculated as a matter of fact and good policy to secure peace, order, and good government, for the decision of the legislature '1 It is quite a different thing, however, that the supporters of this opinion mean. The emphasis laid on this position seems to magnify one power allowed by the British North America Act to the dominion government at the expense of the construction of the Act as a whole and of the general elasticity of its terms.

This difficulty of the position is obvious, but it is interesting to note that Cartier supported Mr. Doherty's point of view: The presumption is it [the power of disallowance by the federal government] will be exercised in case of unjust or unwise legislation. He drew from Dunkin apt criticism: The hon. gentleman's presumption reminds me of one perhaps as conclusive, but which Dickens tells us failed to satisfy his Mr. Bumble. That henpecked beadle is said to have said, on hearing of the legal presumption that a man's wife acts under his control: "If the law presumes anything of the sort, the law's a foola natural fool." If this permission of disallowance rests on a presumption that the legislation of our provinces is going to be unjust or unwise, it may be needed; but under that idea. one might have done better either not to allow, or else to restrict within narrower limits, such legislation. If the promised nonexercise of the power to disallow rests on the presumption that all will be done justly and wisely in the provincial legislatures, the legislative power is well given; but then there is no need, on the other hand, for the permission to disallow.'

Dunkin, however, with this power of disallowance among

1 Keith, Responsible Government, vol. i, p. 419.

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other things in his mind, followed with the conclusion that there was no real autonomy allowed to the provinces ', that disallowance of all autonomy to the provinces' characterized the scheme. If that be conceded, the nature of Canadian government is that of a thinly veiled legislative union; and this position is difficult to maintain considering the history, the legal decisions, and the actual results worked out because of them. It challenges the authority of provincial legislation, otherwise sound, and, it is submitted, it reopens the whole question of local government within any province. If it be correct, it is inevitable that the binding force of local regulations may be disputed on the principle delegatus non potest delegare. Provincial regulations of factories or of public health, for example, may well be called in question by the citizens of a province. And yet this big county council' this province -has the constitutional power to change its own constitution. The two things seem incompatible.

The two well-defined divisions of the subjects seem to correspond to two well-defined periods in social development. The first might be called the period of growth. Material development and economic progress were the predominating social characteristics. With their foundations in progress, constitutional issues did not create vital and widespread interests, and much was often conceded, or allowed to go unchallenged, or was consented to against a day'. Thus the dominion government, with the strong bias lent to the federation by Sir John

6

1 Confederation Debates, p. 502; Kennedy, op. cit., p. 661.

2 Cf. Attorney-general for British Columbia to the federal minister of justice, December 20, 1901: In the early days of confederation the dominion executive appear to have been imbued with the notion that the relation between the dominion and the provinces was analogous to that existing between parent and child, and to have acted accordingly. That view of the status of the provinces has been overthrown by a series of imperial privy council decisions which have clearly established that the provinces acting within the scope of their powers are almost sovereign states' (Provincial Legislation, 1901-3 (Ottawa, 1905), p. 56).

3 Riddell, op. cit., p. 98.

Macdonald, acquired much actual power. But once the foundations of social progress became secure and economic expansion began to demand such wide securities as its exponents seemed to consider necessary, constitutional challenges became more and more common. The courts were forced to consider the constitution in all its bearings and to give such interpretations to it as were consistent with its construction as a whole. The second period is the period of provincial rights which have increased under judicial interpretations. These, however, have not violated the framework. Indeed it may be said that they have humanized the British North America Act. They have given it the elasticity of life. They have rescued it from the uncritical worship due to an imperishable and immutable relic of rigid antiquarianism. They, too, have contributed to political theory. In Canada are being worked out experiments in sovereignty. Or rather Canada is making a serious contribution to the destruction of the Austinian idea. Every province is from one point of view at least-in relation to the federal government-an example of a group with a life and purpose of its own. The history of education in the province of Manitoba is an interesting contribution to the decline and fall of the sovereign state.

Finally, there are two further distinctions between a federation and a confederation which have been made. They are not important, but need not be overlooked. Firstly, a federal state is one all parts of which are represented, for international purposes, by one government; and a confederation of states one whose governments retain the right to be separately represented and considered'. Without discussing the definition it is obvious that, in so far as Canada is allowed international relations by the imperial tie, Canada is a federation. The dominion government acts for Canada as a whole in any

1 Lewis, On the Use and Abuse of some Political Terms (ed. Raleigh, 1898),

p. 97.