For example, a province might legislate on a matter relying on its control over ' property and civil rights in the province', while the dominion, looking from an entirely different angle, might legislate on the same matter relying on its control over trade and commerce'. If the dispute reaches the courts an important fact arises from this difference of point of view. We have seen that the courts are not concerned with the motive of legislation;1 but in such a case as that under consideration they must consider the nature, the grounds of the legislation, in order to establish the authority or lack of authority of the Act. Its object and scope must be determined in order to ascertain the class of subject to which it really belongs. The courts can determine the classification of the subject-matter of an Act by considering its main purpose. For example, they might be called on to decide whether a specific Act was legislation under the provincial power over licences, or whether it was an invasion. of the federal sphere of taxation and virtually a stamp Act '.3 Once the decision is made, the motive for legislation cannot hurt the validity of the Act. The courts, by deciding the point of view or aspect of an Act which may make it valid or invalid federal or provincial legislation, must consider the influences moving the legislature which enacted it. Their consideration is, however, only auxiliary to a constitutional decision and is not the passing of a judgement on the motive behind such legislation. This matter of 'point of view' has been summed up recently by the judicial committee of the privy council: 'It must be borne in mind in construing the two sections, that matters which in a special aspect and for a particular purpose may fall within one of them may in a different aspect and for a different purpose fall within the other. In such cases, the nature and

1 See above, p. 428.

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2 Russell v. The Queen, [1882] 7 App. Cas. 829.

3 Attorney-General for Quebec v. Queen Insurance Company, [1878] 3 App. Cas. 1090. Cf. Lord Watson in Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A. C. 348.

scope of the legislative attempt of the dominion or the province, as the case may be, have to be examined with reference to the actual facts if it is to be possible to determine under which set of powers it falls in substance and in reality. This may not be difficult to determine in actual and concrete cases. But it may well be impossible to give abstract answers to general questions as to the meaning of the words or to lay down any interpretation based on their literal scope apart from their context.' 1

(f) Intrusion of federal legislation on provincial legislation

and vice versa

It does not invalidate a federal Act if it interferes with the operation of a provincial Act, provided that it is not substantial legislation on a matter belonging to the exclusive jurisdiction of the province. For example, the dominion could impose a liquor prohibition law, though in doing so it might destroy a perfectly valid provincial source of revenue in saloon and tavern licences. Or the dominion may directly intrude on the provincial area when legislating under its own clearly defined powers in so far as a general law may affect that area; or indirectly, with such provisions as may prevent a federal law from becoming a dead letter. It is, however, impossible to find any general formula which will govern dominion intrusion. All that can be said is that there is a kind of enabling power of an intrusive nature sometimes necessary to the workings of dominion legislation. Necessarily incidental' has become a recognized phrase in this connexion. It appears, however, that the phrase must not be exclusively interpreted as meaning that without the intrusion under consideration it would be impossible to work the dominion Act, or that no other provision would be adequate. On the contrary, it seems that if such

6

1 The John Deere Plough Company v. Wharton, [1915] A. C. 330.

2 Montreal Street Railway Company v. City of Montreal, [1912] A. C. 333 ; Attorney-General for Ontario v. Attorney-General for the Dominion, [1896] A. C. 348.

provision might under certain circumstances be beneficial, and assist to more fully enforce such legislation, then it must, at all events, on an appeal to the courts, be held to be necessary, that is, necessary in certain events.'1

The provinces do not seem to have any powers to bring in auxiliary legislation in relation to the enumerated subjects granted exclusively to the federal legislature, though in legislating upon subjects, properly understood, within their own sphere, they may touch on the exclusive jurisdiction of the federal parliament. On the other hand, it seems probable that they might incidentally invade the area of the dominion residuary power.

[AUTHORITIES.-The leading books on the subject are J. R. Cartwright, Cases decided on the British North America Act (Toronto, 1887 ff.); E. R. Cameron, The Canadian Constitution as interpreted by the Judicial Committee of the Privy Council in its Judgements (Winnipeg, 1915) (there is an important review of this book in Review of Historical Publications relating to Canada, vol. xx, pp. 198 ff.); A. H. F. Lefroy, Canada's Federal System (Toronto, 1913), Legislative Power in Canada (Toronto, 1897-8), Short Treatise on Canadian Constitutional Law (Toronto, 1918); W. H. P. Clement, The Law of the Canadian Constitution (3rd ed., Toronto, 1916). There are valuable chapters in Keith, Responsible Government in the Dominions, vol. ii, pp. 645 ff. (Oxford, 1912); Imperial Unity, pp. 389 ff. (Oxford, 1916); War Government in the Dominions, pp. 289 ff. (Oxford, 1921). The Law Reports of the various provinces, the Supreme Court of Canada Reports, The Times Law Reports, Correspondence and Reports of the Ministers of Justice and Orders in Council upon the subject of Dominion and Provincial Legislation are essentials. The Canada Law Journal and the Canadian Law Times contain valuable articles and comments on cases. On the school question, consult O. D. Skelton, Sir Wilfrid Laurier (2 vols., Oxford, 1921); J. Willison, Sir W. Laurier and the Liberal Party (2 vols., Toronto, 1903); G. M. Weir, Separate School Law in the Prairie Provinces (Queen's University, Kingston, 1918).]

1 Doyle v. Bell (1884), 11 O. A. R. 326; City of Toronto v. Canadian Pacific Railway Company, [1908] A. C. 54.

CHAPTER XXV

THE IMPERIAL TIE

THE dominion of Canada is an integral part of the British Empire. The growth of Canadian autonomy has therefore been necessarily limited by the legal and constitutional bonds which unite Canada to the empire. In the past the imperial governments and not a few Canadians thought that there should be as little devolution of authority as possible lest the empire should finally dissolve. Even with the grant of responsible government, development was slow, but, as we have seen, there has been a steady and continuous shedding of imperial control in many of those spheres which were once considered sacred and inviolate, until at present the imperial tie is so far removed from the ordinary everyday affairs of citizenship that there is a disposition to think that it consists merely in loyalty to ideals of freedom.

There can be little doubt that emotion and sentiment play a large and important part in the relationship between Canada and Great Britain, and it is well that moral values should not be forgotten in the consideration of hard, legal facts. Great Britain recognizes that Canada has a distinct national status and a distinct group life. There is no possibility in future of leaving Canadian opinion unconsidered or of curtailing full discussion in the delicate and dangerous world of foreign affairs. Great Britain has accepted the fullness of Canadian citizenship, and if it still lacks an effective voice in the executive life of the empire, the fault assuredly does not lie with the mother country. Constitutional reorganization lies in the hands of the Canadian people. In the meantime, the secret places of imperial policy have been opened to Canadian statesmen, who can obtain as

impartial and complete a knowledge of international affairs, of defence, of treaties, and of conventions as any member of the British cabinet. There thus exists a real Canadian influence which need no longer be exercised through irregular and uncertain consultations, but possesses a recognized sphere in the active co-operation at any moment between the imperial government and a Canadian minister resident in London. The motive behind all these advances has undoubtedly been a devotion to freedom in the broadest sense.

But the student of constitutional history, while fully recogniz ing the value of such devotion and the strength of the emotional ties, cannot forget the world of law nor lose sight of those conditions which constitute international life. Although Canadian autonomy is practically complete in trade and commerce, although Canadian opinion is practically decisive in political treaties affecting the dominion alone, although Canada is a distinct member of the league of nations with the right to representation on its council, yet the witness which these developments bear is rather to the extreme limit of Canadian freedom within the empire than to newly accepted positions in constitutional law. As the law of nations now stands Canada is not a sovereign state. However light the imperial tie, as long as it exists Canada cannot escape-under the political theories which at present prevail-the implications of the fact. In addition, the imperial connexion imposes boundaries Canadian autonomy within the empire. The internal and the external limitations of Canadian political authority can be clearly stated in terms of private and international law without in the least mortgaging the future or closing the gate to further developments. There is just as great a danger in refusing to recognize the fact of these limitations as in erecting the present regulations governing foreign relationships into permanent and inviolate principles and thus laying the dead hand of theory on the march of political events. It is necessary to avoid, on the