Canada under British Rule 1760-1900

by John George Bourinot

APPENDIX A.

COMPARISONS BETWEEN THE MAIN PROVISIONS OF THE CONSTITUTIONS OF THE DOMINION OF CANADA AND THE AUSTRALIAN COMMONWEALTH.

CANADA. AUSTRALIA. |
Name. Name
The Dominion of Canada The Commonwealth of Australia.

How Constituted. How Constituted
Of provinces. Of states.

Seat of Government. Seat of Government
At Ottawa until the Queen Within federal territory in
otherwise directs. New South Wales, at least 100
miles from Sydney

Executive Power. Executive Power Vested in the Queen. Vested in the Queen. Queen's representative, a Queen's representative, a governor-general, appointed by governor-general, appointed by the Queen in council. the Queen in council.

Salary of governor-general Not less than £10,000 paid £10,000 sterling, paid by Dominion by the commonwealth, fixed by government, alterable by parliament from time to time, the parliament of Canada, but not diminished during tenure of subject to the disallowance of a governor-general. the crown, as in 1868, when parliament passed a bill to reduce this salary.

CANADA. AUSTRALIA. Ministers called by governor-general Same—only for "privy to form a cabinet, first councillors" read "executive sworn in as privy councillors, councillors" hold office while they have the confidence of the popular house of parliament, in accordance with the conventions, understandings, and maxims of responsible or parliamentary government.

Privy councillors hold, as the Executive councillors administer crown may designate, certain such departments as departments of state, not limited governor-general from time to in name or number, but left to time establishes. Until other the discretionary action of provision is made by parliament, parliament. Such heads of number of such officers, who departments must seek a new may sit in parliament, shall not election on accepting these exceed seven. office of emolument.

_Command of Military and Command of Military and
Naval Forces Naval Forces_
Vested in the Queen. In the Queen's representative.

Parliament Parliament
The Queen. The Queen.
Senate. Senate.
House of commons. House of representatives.
Session once at least every The same.
year.
Privileges, immunities and Such as declared by the parliament
powers held by senate and house of the commonwealth,
of commons, such as are defined and, until declared, such as are
by act of the parliament of held by the commons' house of
Canada, but not to exceed those parliament of Great Britain at
enjoyed at the passing of such the date of the establishment of
act by the commons' house of the commonwealth.
parliament of Great Britain.

CANADA. AUSTRALIA

Senate composed of twenty-four Senate composed of six
members for each of the senators for each state, directly
three following divisions (1) chosen for six years by the
Ontario, (2) Quebec, and (3) people of the state voting as
maritime provinces of Nova one electorate; half the number
Scotia, New Brunswick, and shall retire every three years,
Prince Edward Island. Other but shall be eligible for
provinces can be represented re-election. No property
under the constitution, but the qualification is required, but the
total number of senators shall senators must be British subjects
not at any time exceed of the full age of twenty-one years.
seventy-eight, except in the In Queensland the people can
case of the admission of vote in divisions, instead of in
Newfoundland, when the maximum one electorate.
may be eighty-two. Senators
appointed by the crown for life,
but removable for certain
disabilities. They must have
a property qualification and be
of the full age of thirty years.

Speaker of the senate appointed President of the senate elected
by the governor-general by that body.
(in council).

Fifteen senators form a quorum One-third of whole number of
until parliament of Canada senators form a quorum until
otherwise provides. parliament of commonwealth
otherwise provides.
Non-attendance for two whole Non-attendance for two consecutive
sessions vacates a senator's seat. months of any session
vacates a senator's seat.
Members of house of commons Every three years.
elected every five years,
or whenever parliament is dissolved
by the governor-general.

No property qualification, but The same. must be British subjects of full age of twenty-one years.

CANADA. AUSTRALIA The electors for the Dominion Qualification of electors for commons are the electors of the members of the house of several provinces, under the representatives is that limitations of a statute passed prescribed by the law of each by the Dominion parliament in state for the electors of the 1878. Qualifications vary, but more numerous house of the universal suffrage, qualified by parlianment of the state. residence, generally prevails.

A fresh apportionment of The same. representatives to be made after each census, or not longer than intervals of ten years.

Speaker of house of commons The same. elected by the members of the house.

Quorum of house of commons Quorum of house of representatives
—twenty members, of whom the —one-third of the
speaker counts one. whole number of members
until otherwise provided by
parliament.

No such provision. Member vacates his seat
when absent, without permission,
for two months of a
session.

No such provision. Parliament to be called together
not later than thirty days
after that appointment for return
of writs.

Allowance to each member of Allowance of £400 to members senate and commons $1,000 for of both houses until other a session of thirty days, and provision is made by parliament. mileage expenses, 10 cents a mile going and returning. Not expressly provided for by constitution but by statute of parliament from time to time.

CANADA. AUSTRALIA. Canadian statutes disqualify Same classes disqualified in contractors and certain persons the constitution. holding office on receiving emoluments or fees from the crown while sitting in parliament.

Each house determines the The constitution has a special
rules, and orders necessary for provision on the subject.
the regulation of its own proceedings;
not in the constitution.

Money And Tax Bills Money and Tax Bills
The same. Money and tax bills can only
originate in the house of
representatives.

|Same by practice. The senate can reject, but not amend, taxation or appropriation bills.

Not in Canadian constitution. The senate may return money and appropriation bills to the house of representatives, requesting the omission or amendment of any provision therein, but it is optional for the house to make such omissions or amendments.

No such provision. If bills, other than money bills, have twice been passed by the house of representatives and twice been rejected by the senate or passed by that body with amendments to which the house of representatives will not agree, the governor-general may dissolve the two houses simultaneously; and if, after the new election they continue to disagree, the governor-general may convene a joint sitting of the members of the two houses, who shall deliberate and vote upon the bill, which can only become law if passed by an absolute majority of the members sitting and voting.

_Legislative Powers of the Legislative Powers of the
Parliament of the Dominion. Parliament of the
Commonwealth_.

Respective powers of the federal The Legislative powers of the parliament and provincial federal parliament are alone legislatures are enumerated and enumerated, and the states defined in the constitution; the expressly retain all the powers residuum of power rests with the vested in them by their central government in relation respective constitutions at the to all matters not coming within establishment of the the classes of subjects by the commonwealth as to matters not British North America act of specified as being within the 1867 assigned exclusively to the exclusive jurisdiction of the legislatures. federal parliament.

The Provinces. The States.

Legislatures may alter provincial Constitutions may be altered constitutions except as under the authority of the regards the office of lieutenant parliaments thereof. -governor.

Lieutenant-governors are appointed The constitution of each state
by the governor-general-in-council, continues (subject to the
and removable by constitution) as at the
him within five years only for establishment of the
cause assigned and communicated commonwealth, or as at the
by message to the two admission or establishment
houses of parliament. of the states, as the case
may be, until altered in
accordance with the
constitution of the
states. In other words,
the powers of the states
over their own constitutions
are preserved.

Acts of the provincial When a law of the state is
legislatures may be disallowed inconsistent with one of the
by the governor-general-in-council commonwealth, the latter shall,
one year after their receipt. to the extent of such
inconsistency, be invalid.

Education is within exclusive No special provisions in the jurisdiction of the provinces, constitution; education being but with conditions for the one of the subjects exclusively maintenance and protection of within the powers of the state rights and privileges of parliaments, under the clause religious bodies in a province leaving them in possession of with respect to denominational all powers not expressly given schools. to the federal parliament.

The federal parliament can A state shall not impose any
alone impose duties or taxes on taxes or duties upon imports
imports. except such as are necessary
for executing the inspection
laws of a state, but the net
produce of all charges so
levied shall be for use of the,
commonwealth, and such
inspection laws may be annulled
by the parliament of the
commonwealth.

Similar power. The parliament of the commonwealth may from time to time admit new states, and make laws for the provisional administration and government of any territory surrendered by any state to the commonwealth, or of any territory placed by the Queen under the commonwealth, or otherwise acquired by the same.

CANADA. AUSTRALIA.

The Judiciary. The Judiciary.

The same. The parliament of the
commonwealth can establish a
federal supreme court, called
the High Court of Australia,
and other federal courts for
the commonwealth; the judges
to be appointed by the
governor-general, to hold
office during good behaviour,
No such provision with respect not to be removed except upon
to diminution of salary during an address of both houses of
tenure of office. parliament, but so that the
salary paid to any judge shall
not be diminished during his
continuance in office.

Similar provisions by statutory The high court can adjudicate
enactments of Dominion in cases arising out of the
parliament. constitution, or controversies
between states, or in which the
commonwealth is a party.

No such stringent provision Appeals only allowed to exists in the Canadian Queen-in-council from high court constitution, but appeals in all on constitutional issues between civil—though not in commonwealth and any state, criminal—cases are allowed, by or between two or more states, virtue of the exercise of the when high court gives leave to royal prerogative, from appeal. Otherwise, the royal provincial courts as well as prerogative to grant appeals is from the supreme court of Canada not impaired. Parliament may, to the Queen-in-council; however, make laws limiting i.e., in practice, to the such appeals, but they must judicial committee of the privy be reserved for her Majesty's council. pleasure.

CANADA. AUSTRALIA.

Judges of the superior and Judges in the states are appointed
county courts in the provinces and removable under existing state
(except those of probate in New constitutions, which the state
Brunswick, Nova Scotia and parliaments can change at will.
Prince Edward Island) are appointed
by the governor-general-in-council,
and removable only
by the same on the address of
the two houses of parliament.
Their salaries and allowances
are fixed by the parliament of
Canada.

The provinces have jurisdiction Similar powers in the states. over the administration of justice in a province, including the constitution, maintenance, and organisation of provincial courts, both of civil and criminal jurisdiction, and including the procedure in civil matters in those courts.

The enactment and amendment With the states. of the criminal law rest with the Dominion parliament.

The enactment and amendment With the states. of all laws relating to property and civil rights rest with the provinces.

Trade and Finance. Trade and Finance.
Customs and excise, trade and The parliament of the commonwealth
commerce, are within exclusive has sole power to
jurisdiction of Dominion parliament. impose uniform duties of customs
and excise, and to grant bounties
upon goods when it thinks it
expedient. As soon as
such duties or customs
are imposed, trade and
intercourse throughout the
commonwealth, whether by
internal carriageor ocean
navigation, is to be free.

The Dominion government The parliament of the commonwealth
can veto any such unconstitutional may annul any state
law. law interfering with the freedom
of trade or commerce between
the different parts of the
commonwealth, or giving preference
to the ports of one part over
those of another.

The power of direct taxation Direct taxation may be imposed is within the jurisdiction of both by the commonwealth Dominion parliament and provincial and by each state within its own legislatures, the one for limits—but taxation, when Dominion and the other solely exercised by the commonwealth, for provincial purposes. must be uniform.

Both Dominion and provincial Same is true of commonwealth governments have unlimited and states. borrowing power under the authority of parliament and legislatures.

Certain money subsidies are Of the net revenue of the
paid annually to the provinces commonwealth from duties of
towards the support of their customs and excise, not more
governments and legislatures. than one-fourth shall be applied
annually by the commonwealth
towards its expenditure. The
balance shall, in accordance
with certain conditions of the
constitution, be paid to the
several states, or applied
towards the payment of
interest on debts of the
several states. This arrangement
is limited to ten years. Financial
aid may be granted to any state
upon such terms as the federal
parliament may deem expedient.
Western Australia may, subject
to certain restrictions, impose
duties on goods imported from
other parts of the commonwealth.

No such provision; but the For the administration of the
Dominion parliament and provincial laws relating to interstate trade
legislatures could by the governor-general-in-council
legislation arrange a similar may appoint an interstate
commission. commission.

Canada is liable for amount of The parliament of the commonwealth
the debts and liabilities of the may consolidate or
provinces existing at the time of take over state debts by general
the union, under the conditions consent, but a state shall
and terms laid down in the indemnify the commonwealth, and
constitution. the amount of interest payable in
respect to a debt shall be
deducted from its share of the
surplus revenue of the
commonwealth.

Imperial Control over Imperial Control over Dominion Legislation. Australian Legislation. Bills may be reserved by the The same. governor-general for the Queen's pleasure, and her Majesty in As the old state constitutions council may within two years continue in force until amended after receipt of any Dominion by the state, state legislation is act disallow the same. still subject to power of disallowance by Queen in council.

No such provision. The governor-general may return any "law" presented to him for the Queen's assent and suggest amendments therein, and the houses may deal with them as they think fit.

The recommendation of the The same. crown is required before initiation of a money vote in parliament.

_Amendments to the Amendments to the
Constitution. Constitution._

By the imperial parliament on Any proposed amendment to
an address of the houses of the the constitution must be first
Dominion parliament to the passed by an absolute majority
Queen. of each house of parliament,
and submitted in each state to
the electors qualified to vote for
members of the house of
representatives. If in majority of
the states a majority of the
electors voting approve the
proposed law, and if a majority
of all the electors
voting also approve the
proposed law, it shall be
presented to the governor-general
for the royal assent.