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"The following table will best illustrate the details and final result of the various adjustments above noted :—

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[N.B.-In this Table Mr. Foster appears to have omitted the allowance of 472,090 dollars made to Manitoba in 1870.]

"The total final indebtedness of, and for, the Provinces assumed by the Federal Government is now [July 1, 1897] 109,430,148 dollars a very considerable portion of the whole public debt of Canada."

(ii.) Public Debt of Canada payable in London, 1867-1897.

The total debt payable in London in 1867 was 67,069,115 dollars, of which 34,565,500 dollars or over one-half-bore 6 per cent. interest; 31,822,282 dollars bore 5 per cent. ; and the remaining 681,333 dollars was running at 4 per cent., being a loan guaranteed by the Imperial Government. In 1872 91 per cent. of the loans payable in London bore 4 per cent. interest [guaranteed by the British Government]; 45 per cent. bore five per cent., and 451 per cent. ran at six per cent. In 1882 the loans bearing six per cent. were only 7 per cent. of the total payable in London, those bearing five per cent. were 25 per cent. of the total, whilst those bearing four per cent. interest were 67 per cent. of the total. By June 30th, 1897, the whole of the six per cent. bonds had disappeared; but 2,433,333 dollars remained of the five per cent. bonds; 140,856,894 dollars bore four per cent.; 24,333,333 dollars bore 3 per cent., and 50,602,241 dollars bore three per cent. In the autumn of that year, a loan was placed in London which, including costs and charges, bore 23 per cent.-and this latest loan marks the strong contrast between 1867 and the present, and emphasises the immensely cheaper borrowing as compared with the opening years of Confederation."

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Australia.

For the practical working of the finances of the Dominion after the assumption of the Provincial Debts, the British North America Act established a Consolidated Revenue Fund consisting of "all duties and revenues over which the respective Legislatures before and at the Union had and have power of Appropriation, except such portions thereof as are by this Act reserved to the respective Legislatures of the Provinces, or are raised by them in accordance with the special powers conferred on them by this Act." [Sec. 102.] Further, "all stocks, cash, bankers' balances and securities for money belonging to each Province at the time of the Union, except as in this Act mentioned," were declared to be the property of Canada and were to be taken in reduction of the Provincial debts [Sec. 107]; whilst certain public works and property of each Province enumerated in the 3rd schedule-were declared to be the property of Canada [Sec. 108].

Sec. 105 of the Constitution of Australia says that :—

"The Parliament may take over from the States their public debts as existing at the establishment of the Commonwealth, or a proportion thereof according to the respective numbers of their people, as shown by the latest statistics of the Commonwealth, and may convert, renew or consolidate such debts or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States." [Vide also Sec. 87.1

The Constitution of Australia therefore stands mid-way between that of the United States and Canada in this respect. The power given by Sec. 105 has not yet been exercised, though several attempts have been made to put it into force. Messrs. Quick and Garran give the following statement of the Public Debt of the Australian States at Federation [based on Coghlan's Statistics of the seven Colonies, 1900, p. 25]:

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CHAPTER XVI.

AMENDMENT OF THE CONSTITUTION.

The amendment of the Constitution of the United States is United States. provided for in Art. V. :

"The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of twothirds of the several States, shall call a Convention proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States or by Conventions of three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress: Provided that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth Section of the first Article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate."

Mr. Bryce [American Commonwealth, vol. i., chap. xxxii.] analyses the actual amendments which have been made in the Constitution under Article V. He points out that all these amendments have been proposed and sanctioned in the first of the two alternative ways which Article V. lays down for the proposition and ratification of amendments. He divides the amendments into four groups.

"The first group, including ten amendments made immediately after the adoption of the Constitution, ought to be regarded as a supplement or postcript to it, rather than as changing it. They constitute what the Americans, following the English precedent, call a Bill of Rights, securing the individual citizen and the States against the encroachments of Federal power." [These ten amendments were proposed by the first Congress, having been framed by it out of 103 amendments suggested by various States, and were ratified by all the States but three. They took effect in December, 1791.] "The second and third groups, if a single amendment can be properly called a group [viz., amendments XI. and XII.], are corrections of minor defects, which had disclosed themselves in the working of the Constitution." [The XIth amendment negatived a construction which the Supreme Court had put upon its own judicial powers; the XIIth corrected a fault in the method of choosing the President.] "The fourth group is the only one which marked a political crisis and registered a political victory. It comprises three amendments [XIII., XIV., XV.] which forbid slavery, define citizenship, secure the suffrage of citizens against attempts by States to discriminate to the injury of particular classes, and extend Federal protection to those citizens who may suffer from the operation of certain kinds of unjust State laws. These three amendments are the outcome of the War of Secession, and were needed in order to confirm and secure for the future its results. The requisite majority of States was obtained under conditions altogether abnormal, some of the lately conquered States ratifying whilst actually controlled by the Northern Armies, others as the price which they were obliged to pay for the re-admission to Congress of their Senators and Representatives." ["The Thirteenth amendment was

Canada.

proposed by Congress in February, 1865, ratified and declared in force December, 1865; the XIVth was proposed by Congress in June, 1866, ratified and declared in force June, 1868; the XVth was proposed by Congress February, 1869, ratified and declared in force March, 1870. The XIVth amendment had given the States a strong motive for enfranchising the negroes by cutting down the representation in Congress of any State which excluded male inhabitants-being citizens of the United States-from the suffrage; the XVth went further and forbade 'race, colour or previous condition of servitude' to be made a ground of exclusion. The grounds for this bold step were succinctly set forth by Senator Willey-of West Virginia-when he said that the suffrage was the only sure guarantee the negro could have in many parts of the country for the enjoyment of his civil rights; that it would be a safer shield than law, and that it was required by the demands of justice, the principles of human liberty and the spirit of Christian civilization. The effect of these three amendments was elaborately considered by the Supreme Courtin 1872-in the so-called Slaughter-House Cases [16 Wall., 82], the effect of which is thus stated by Mr. Justice Miller: With the exception of the specific provisions in the three amendments for the protection of the personal rights of the citizens and people of the United States, and the necessary restrictions upon the power of the States for that purpose, with the additions to the power of the general government to enforce those provisions, no substantial change has been made in the relations of the State Governments to the Federal Government.'"]. "The details belong to history: All we need here note is that these deep-reaching, but under the circumstances perhaps unavoidable, changes were carried through, not by the free-will of the peoples of threefourths of the State, but under the pressure of a majority,which had triumphed in a great war, and used its command of the military strength and Federal Government of the Union to effect purposes deemed indispensable to the reconstruction of the Federal system.'

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Mr. Bryce points out that many other amendments have been proposed but that very few of these have received the requisite twothirds majority of Congress and that none have actually been ratified. Yet "alterations, though perhaps not large alterations, have been needed, to cure admitted faults or to supply dangerous omissions." But the process of amendment has been found to be so difficult in its practical operation that the actual working of the Constitution. in this respect has been left to two indirect agencies, viz., the interpretation of the Constitution by the Federal Courts and its development by usage.

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The Canadian Constitution makes no provision for its own amendment; though the first sub-section of Section 92 gives the Provincial Legislatures power to make laws dealing with "the amendment from time to time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the office of the Lieutenant-Governor." Two views may be taken of this omission in the British North America Act. The first is that the unlimited and undefined nature of the power given to the Dominion Government [under Sec. 91] " to make laws for the peace, order and good government of Canada, in relation to all matters not coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces," would include that of amendment of the Act itself. That is to say that the Dominion Parliament could *Bryce: American Commonwealth, vol. I., pp. 484-485. (The quotations in brackets in the text are Byrce's footnotes).

pass an amending Act which would not have to receive the sanction of the Imperial Parliament, but would become the law of Canada merely on its being assented to by the Governor-General, if that were possible. As illustrating this view, a remark of Lord Davey during the hearing of Fielding vs. Thomas before the Privy Council * may be quoted. Upon an observation by Counsel to the effect that :"The Canadian Parliament has no power at all given to it to alter the Constitution of Canada," Lord Davey said:" That is a big question that it would be unwise to express an opinion upon. There is 'peace, order and good government of Canada.'" The second view, however, is probably the more correct. It is that the Federal Parliament cannot amend the British North America Act; and this view is well expressed by Mr. Bernard Holland † :-"The Canadian Constitution, being the act of the Imperial Parliament, can only be amended by that Parliament, or by the Canadian Parliament with the permission and authority of the Imperial Parliament. In practice, no doubt, a direct 'reference' to the Canadian electorate would precede any such amendment, and the Imperial Parliament would sanction almost any amendment upon which the Canadians were agreed."

The Australian Constitution, however, forsakes the Canadian Australia. precedent and goes back to that of the United States. An amendment passed as provided by the Constitution need not go before the Imperial Parliament but is merely "presented to the GovernorGeneral for the Queen's assent." "Thus the Imperial Parliament, in sanctioning the Australian Constitution, has surrendered its power of amending that Constitution, although in theory it retains the power of amending the Canadian Constitution, and its formal consent would be necessary in the latter case."‡

Section 128 of the Australian Constitution is that which provides for its amendment. It is as follows:

"This Constitution shall not be altered except in the following manner :"The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses, the proposed law shall be submitted in each State to the electors qualified to vote for the election of members of the House of Representatives.

"But if either House passes any such proposed law by an absolute majority and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if, after an interval of three months, the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House and either with or without any amendments subsequently agreed to by both Houses to the electors in each State qualified to vote for the election of the House of Representatives.

1896 A.C., 600.

† Imperium et Libertas, p. 182. Bernard Holland: Imperium et Libertas, p. 184.

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