W

HEN the scheme of Confederation was discussed in the Legislature at Quebec, there was a marked anxiety on the part of the leading politicians to follow all the good features of the federal plan of union adopted by the United States of America, and to avoid all the weak points which that system had disclosed, and which had become, as it were, prominent landmarks for our own guidance. The question of 'Sovereign State Rights' was one which in its applicability to our Provinces had previously caused much anxious consideration at the Quebec Conference, held in October, 1864, and again in the two Houses of the Legislature, when the Address was voted to the Crown, in February, 1865, praying for an Imperial Act to legalize and confirm the new Constitution. All the leading minds of the two great political parties, Liberal and Conservative, were united in the opinion that the supreme power must remain with the Dominion or Federal Government, and that the legislation of the Provinces must be made subject to disallowance by that power. The debates both of the Canadian Legislature and the Imperial Parliament shew that the consideration of this important question in all its various bearings was gravely and thoughtfully entertained, the result being that the clearly expressed desire of the people of the British North American Provinces on this question of sovereign power was embodied in the Act of Union.

By reference thereto, we find that inasmuch as Acts passed by the Parliament of the Dominion might see. 56 of the Union Act-be disallowed by the Queen in Council within two years, so Acts passed by the Provincial Legislatures might-sec. 90-be disallowed by the Governor-General in Council within one year. It may be well to give the section of the Statute verbatim as it stands to-day. See section 56, as read in connection with sec. 90:

'When the Lieut.-Governor assents to a Bill in the Governor-General's name, he shall, by the first convenient opportunity, send an authentic copy of the Act to the Secretary of State for Canada, and if the Governor-General in Council, within one year after receipt thereof by the Secretary of State, thinks fit to disallow the Act, such disallowance (with a certificate of the Secretary of State of the day on which the Act was received by him) being signified by the Lieutenant-Governor by speech or message to the Legislature of the Province, or by proclamation, shall annul the Act from and after the day of such signification.'

This, then, is the constitutional authority for the exercise by the Governor-General in Council of the power of disallowance. No one, indeed, can question that the power exists, and no one who is at all acquainted with the history of the Canadian Confederation can for a moment doubt that the power was so conferred in accordance with the earnestly expressed desire of the Canadian people.

The recent disallowance of the Rivers and Streams Bill passed by the Legislature of Ontario has given rise to much acrimonious disputation which

would seem in a measure to challenge the wisdom of this provision of our Great Charter. It is said that the exercise of the power of disallowance would destroy the autonomy of the Provinces, and be wholly at variance with the exclusive power given to them to legislate upon certain classes of subjects set forth in sec. 92, and notably upon Property and Civil Rights.' But the answer to this contention is that the autonomy and exclusive power of Legislation conferred on the Provinces was expressly granted subject to this power of disallowance reserved to the Central Government; and whilst it is competent for the people of any Province to question the policy of exercising the power in any particular case, it is not competent for any one under the Constitution to question the power itself. That power can be constitutionally exercised at all times by the Governor-General in Council, i. e., with the aid and advice of his Ministers, who are responsible to the people of the Dominion for this as well as for any other Ministerial act. Mr. Blake, while Minister of Justice in 1875, took the true position on this question, when the Colonial Minister claimed that the power of disallowance should be performed by the Governor as an Imperial officer without asking for, or acting on the advice of his Canadian Ministry, Mr. Blake repudiated the pretension successfully, and insisted, as he was entitled to insist under the law, that the disallowance of the Acts of a Provincial Legislature could only be legitimately performed by the GovernorGeneral with the advice of his Canadian Ministers, and that they were responsible for such advice to the people of Canada in the Parliament of the Dominion.

It is not necessary to my purpose to discuss the propriety of disallowing this particular Act:-it may have been, and no doubt was, retrospective in its operation-an objectionable feature, but not fatal to its constitutionality.

It may have affected a subject matter which was pendente lite; also an objectionable feature, but still leaving it within the power of the Local Legislature, and it may have totally disregarded the principles which customarily govern the laws of property; but the subject matter is included in those enumerated in section 92, and therefore it is competent for the Provincial Legislature to deal with it.

The Bill may be a good Bill and quite within the jurisdiction of the Ontario Legislature, or it may be the reverse, and still be within its jurisdiction. In either view, I wish to draw public attention to the importance of the principle of disallowance in the abstract. The jurisdiction may for the purpose of my remarks be in all cases conceded, for if that is overstepped, the Act, being ultra vires, is void, and the Courts when called upon will hold it void, and will practically disallow it. The power given by section 90 to the Governor-General in Council to disallow clearly extends to cases within the jurisdiction of the Provincial Legislature, otherwise there would have been no need of any limitation, as the Courts of law could have effectually settled all such questions.

The true position, then, is this, that the Governor-General, by the advice of his Ministers, may disallow Acts of the Provincial Legislature which are quite competent for it to pass, as well as those in respect of which it has no jurisdiction.

The policy, then, of the particular measure must necessarily be considered by the Governor-General and his advisers, to whom careful supervision will thus become a necessary duty.

Sir John Macdonald, in 1868, laid down some excellent rules to be followed in the carrying out of this special duty, which have not, however, always sufficed; nor was it to be expected that they should suffice in all cases that might arise thereafter. The disallowance of a Provincial Act should, of

course, depend very much on the merits, or rather demerits, of the particular measure under consideration; but many other matters of public interest may, it is conceived, have also to be considered in connection therewith. That the 'Streams Bill' was objectionable, according to well understood principles of legislation, has been already pointed out, but that such objections should prevail to the extent of disallowance is a question fairly open to discussion. And yet in the controversy over the merits of the Bill and the need of its enactment, we must not lose sight of the far more important constitutional principle which has become indirectly involved, namely, the continuance intact of the power of disallowance which must stand unimpeached under the Constitution.

But in the arguments used in the House of Assembly and in the press, it has been contended that there should be no supervision over the Acts passed by the Provincial Legislatures, that so long as they were legislating within the limitations prescribed in section ninety-two, they should be subject to no veto power. This is, in effect, a demand for a change in the Constitution of an extremely revolutionary character, and, with all deference, it is submitted that it would not be in the true interests of the people of the Dominion, that such unlimited powers of legislation should be conferred on the Provinces. There is no sound reason why the Provincial Government should be made to occupy the anomalous position of Sovereign States, even though they be limited to the subjects mentioned in the ninety-second section. Are there, it may be asked, no dangers touching the public interests of the Dominion at large to be guarded against, no hasty legislation to fear, no possibility of conflict with the laws of other Provinces, or with the laws of the Dominion, and especially where concurrent powers exist with the Dominion Parliament? It should be the paramount duty of Canadian statesmen to assi

milate and render uniform, so far as it is possible, the civil laws throughout the Dominion, for nothing can be more hurtful to the interest and prosperity of the people, or more injurious to the progress of the country at large, than that there should be different and perhaps conflicting laws regulating property and civil rights in the different Provinces. How, also, it may be asked, can these or any one of these objects be securely attained without the power of disallowance, and of supervision being placed in the hands of the general government? True, it may be said, that the country, up to the present time, has not suffered from any of these evils, and it is gratifying to know that, with fifteen years' experience of our system of Federal Government, the occasions for the exercise of the power of disallowance have been few and far between.

But it has, in the course of the recent discussions, been contended, by way of refuting the warnings drawn from the Civil War in the United States, that the importance of the Constitutional doctrine as to State Rights has now passed away, and that the danger of any such conflict arising in the Dominion was exaggerated, and obtained an undue importance, in the eyes of those statesmen who planned and framed the various clauses of our Union Act. This is a view which, it is submitted, is entirely incorrect, for, on the contrary, the thinking men of the neighbouring Republic feel keenly to-day the dangers of disintegration which arise from their system of independent State government. A recent paper in the January number of the Princeton Review, entitled 'Anti-National Phases of State Government,' puts these dangers before its readers in a very clear and comprehensive manner; the writer says:

'These various State codes, and methods, and systems, that flow through the very arteries of social and independent life are widely diverse, and are often in sharp conflict with each other. This discordance and conflict between the laws and institutions of the differ