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"It appears to their Lordships that the objection raised by the appellants is founded on an entire misconception of the true character and position of the Provincial Legislatures. They are in no sense delegates of, or acting under any mandate from the Imperial Parliament. When the British North America Act enacted that there should be a Legislature for Ontario, and that its Legislative Assembly should have exclusive authority to make laws for the Province and for provincial purposes in relation to the matters enumerated in Sec. 92, it conferred powers not in any sense to be exercised by delegation from, or as agents of, the Imperial Parliament; but authority as plenal and as ample within the limits prescribed by Sec. 92 as the Imperial Parliament in the plenitude of its power possessed and could bestow. these limits of subjects and area the local legislature is supreme and has the same authority as the Imperial Parliament or the Parliament of the Dominion would have had under like circumstances to confide to a municipal institution or body of its own creation authority to make bye-laws or resolutions as to subjects specified in the enactment and with the object of carrying the enactment into operation and effect.”

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This case was, it is true, one which turned on the powers of the Provincial Legislature of Ontario, but the language of the judgment is very far-reaching and would appear to establish the conclusion that the legislative power conferred on the Central Parliament of a union of British Colonies by an Act of the Imperial Legislature is plenary and not delegated. This conclusion of course depends to a certain extent on the wording of Sec. 91 of the British North America Act, viz." It shall be lawful for the Queen, by and with the advice and consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, etc.' These words are repeated almost verbatim in Sec. 51 of the Constitution of Australia. The same conclusion as to the plenary nature of the legislative power of the Commonwealth Parliament would, therefore, seem to apply to that Constitution.

The question of the distribution of legislative power between the Central and Local Governments in a union of States is, however, one of far greater complexity. Both in the United States and Canada there has been a mass of legal decision on the subject with which it is impossible to deal adequately in a work of this scope. All that can be done is to give in the following chapter a very condensed summary of the provisions of the Constitutions of the United States, Canada, Switzerland and Australia; and to indicate very briefly the outstanding points of difficulty in reconciling the respective legislative powers of the Central and Local Governments under those Constitutions.

Taking the Constitutions of the United States, Canada, Switzerland and Australia generally, the most important point of difference between the respective methods of the distribution of the legislative power is that in the United States, Switzerland and Australia the powers of the Central Government are strictly defined and limited, whilst those of the separate States are left undefined, whereas in Canada the very reverse is the case. Thus the tenth amendment to the Constitution of the United States says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." And Sec. 51 of the Australian

Constitution says that "the Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to" thirty-nine specified subjects; the subjects not specially mentioned by the Constitution being left to the separate States.* Whereas the 91st Sec. of the British North America Act is as follows:

"It shall be lawful for the Queen, by and with the consent of the Senate and House of Commons, to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects assigned exclusively to the Legislatures of the Provinces, etc."

This distinction is emphasized by Dicey [Law of the Constitution, p. 139].

"There exists one marked distinction in principle between the Constitution of the United States and the Constitution of the Canadian Dominion. The Constitution of the United States in substance reserves to the separate States all powers not expressly conferred upon the national government. The Canadian Constitution in substance confers upon the Dominion Government all powers not assigned exclusively to the Provinces. In this matter the Swiss Constitution follows that of the United States."

That this difference in principle was a difference deliberately adopted and intended by those who were responsible for framing the Dominion Constitution is shown by the concluding part of the following extract from the speech made by Lord Carnarvon, who was in charge of the British North America Act, when it came before the House of Lords. The whole extract is useful as showing the intentions of those who framed the Canadian Constitution with regard to the distribution of powers in general :

"I now pass to that which is perhaps the most delicate and the most important part of this measure-the distribution of powers between the Central Parliament and the local authorities. In this is, I think, comprised the main theory and constitution of Federal Government; on this depends the practical working of the new system; and here we navigate a sea of difficulties-there are rocks on the right hand and on the left. If, on the one hand, the Central Government is too strong, then there is risk that it may absorb the local action and that wholesome self-government by the Provincial bodies, which it is a matter of both good faith and practical expediency to maintain; if, on the other hand, the Central Government is not strong enough, then arises a conflict of State rights and pretensions, cohesion is destroyed, and the effective vigour of the central authorities is encroached upon. The real object which we have in view is to give to the Central Government those high functions and almost sovereign powers by which general principles and uniformity of legislation may be secured in those questions that are of common import to all the Provinces; and, at the same time, to retain for each Province so ample a measure of municipal liberty and self-government as will allow, and indeed compel them, to exercise those local powers which they can exercise with great advantage to the community. In this Bill the division of powers has been mainly effected by a distinct classification. The classification is fourfold: 1st, those subjects of legislation which are attributed to the Central Parliament exclusively; 2nd, those which belong to the Provincial Legislatures exclusively; 3rd, those which are subjects of concurrent legislation; and 4th, a particular question which is dealt with exceptionally. To the Central Parliament belong all questions of the public debt or property, all regulations

* Vide also Article 3 of the Swiss Federal Constitution :—“ The Cantons are sovereign, so far as their sovereignty is not restricted by the Federal Constitution, and as such they may exercise all rights which are not delegated to the Federal Power."

with regard to trade or commerce, customs and excise, loans, the raising of revenue by any mode or system of taxation, all provisions as to currency, coinage, banking, postal arrangements, the regulation of the census and the issue and collection of statistics. To the Central Parliament will also be assigned the enactment of Criminal Law. The administration of it, indeed, is vested in the local authorities; but the power of general legislation is very properly reserved for the Central Parliament. And in this I cannot but note a wise departure from the system pursued in the United States, where each State is competent to deal as it may with its Criminal Code, and where an offence may be visited with one penalty in the State of New York, and with another in the State of Virginia. The system here proposed is, I believe, a better and safer one; and I trust that before long the Criminal Law of the four Provinces may be assimilated—and assimilated, I will add, upon the basis of English procedure. Lastly, the fisheries, the navigation and shipping, the quarantine regulations, the lighting of the Coast, and the general question of naval and military defence, will be placed under the exclusive control of the Central Government.

"The principal subjects reserved to the local Legislatures are the sale and management of public lands, the control of their hospitals, asylums, charitable and municipal institutions, and the raising of money by means of direct taxation. The several Provinces, which are now free to raise a revenue as they may think fit, surrender to the Central Parllament all powers under this head except that of direct taxation. Lastly, and in conformity with all recent Colonial legislation, the Provincial Legislatures are empowered to amend their own Constitutions.

"But there is, as I have said, a concurrent power of legislation to be exercised by the Central and the Local Parliaments. It extends over three separate subjects-Immigration, Agriculture, Public Works. Of these the two first will, in most cases, probably be treated by the Provincial authorities. They are subjects which, in their ordinary character, are local; but it is possible that they may have, under the changing circumstances of a young country, a more general bearing, and therefore a discretionary power of interference is wisely reserved to the Central Parliament. Public works fall into two classes: first those which are purely local, such as roads and bridges, and municipal buildings-and these belong, not only as a matter of right, but also as a matter of duty, to the local authorities. Secondly, there are public works which, though possibly situated in a single Province, such as telegraphs, canals and railways, are yet of common import and value to the entire Confederation, and over these it is clearly right that the Central Government should exercise a controlling authority.

"In closing my observations upon the distribution of powers, I ought to point out that just as the authority of the Central Parliament will prevail whenever it may come into conflict with the local Legislatures, so the residue of legislation, if any, unprovided for in the specific classification which I have explained will belong to the central body. It will be seen, under the 91st clause, that the classification is not intended to restrict the generality' of the powers previously given to the Central Parliament, and that those powers extend to all laws made for the peace, order and good government' of the Confederation—terms which, according to all precedents, will, I understand, carry with them an ample measure of legislative authority. I will add that, whilst all general Acts will follow the usual conditions of Colonial legislation and will be confirmed, disallowed, or reserved for Her Majesty's pleasure by the Governor-General, the Acts passed by the local Legislatures will be transmitted only to the Governor-General and be subject to disallowance by him within the space of twelve months."

CHAPTER VIII.

DISTRIBUTION OF LEGISLATIVE POWER.

The distribution of legislative power under the American Con- United States. stitution is contained in Article I., Secs. 8, 9 and 10. The provisions

of these sections are as follows:

Section 8.-" The Congress shall have power :—

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(1) To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.

"(2) To borrow money on the credit of the United States.

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(3) To regulate commerce with foreign nations, and among the several States and with the Indian tribes.

"(4) To establish an uniform rule of naturalisation, and uniform laws on the subject of bankruptcies throughout the United States.

"(5) To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures.

"(6) To provide for the punishment of counterfeiting the securities and current coin of the United States.

"(7) To establish post offices and post roads.

"(8) To promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

"(9) To constitute tribunals inferior to the Supreme Court.

"(10) To define and publish piracies, and felonies committed on the high seas and offences against the Law of Nations.

“(11) To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.

"(12) To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years.

"(13) To provide and maintain a Navy.

"(14) To make rules for the government and regulation of the military and naval forces.

"(15) To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions.

"(16) To provide for organising, arming and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

"(17) To exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of Government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards and other needful buildings; and

"(18) To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any Department or Officer thereof."

The powers thus conferred are limited by :

Section 9:

"(1) The migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808, but a tax or duty may be imposed on such importation, not exceeding 10 dollars for each person.

"(2) The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. "(3) No bill of attainder or ex post facto law shall be passed.

"(4) No capitation or other direct tax shall be laid unless in proportion to the Census, or enumeration herein before dircted to be taken.

"(5) No tax or duty shall be laid on articles exported from any State. No preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear or pay duties in another.

"(6) No moneys shall be drawn from the Treasury, but in consequence of appropriations made by law; and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

"(7) No title of nobility shall be granted by the United States: And no person holding any office of profit or trust under them shall, without the consent of the Congress accept of any present, emolument, office or title of any kind whatever from any King, Prince, or Foreign State."

On the other hand, the powers of the separate States are limited by :

Section 10

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"(1) No State shall enter into any treaty, alliance, or confederation grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law or law impairing the obligation of contracts, or grant any title of nobility.

"(2) No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts laid by any State on imports or exports shall be for the use of the Treasury of the United States, and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress lay any duty of tonnage, keep troops or ships of war, in time of peace, enter into any agreement or compact with another State or with a Foreign Power, or engage in war, unless actually invaded or in such imminent danger as will not admit of delay."

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