Studies in the South and West, with Comments on Canada

by Charles Dudley Warner

It has been necessary to speak in this brief detail of the manner of the formation of the union in order to understand the politics of Canada. For there are radicals in the Liberal party who still regard the union as forced and artificial, and say that the provinces outside of Ontario and Quebec were brought in only by the promise of local railways and the payment of large subsidies. And this idea more or less influences the opposition to the “strong government” at Ottawa. I do not say that the Liberals oppose the formation of a “nation”; but they are critics of its methods, and array themselves for provincial rights as against federal consolidation.

The Federal Government consists of the Queen, the Senate, and the House of Commons. The Queen is represented by the Governor-general, who is paid by Canada a salary of fifty thousand dollars a year. He has his personal staff, and is aided and advised by a council, called the Queen’s Privy Council of Canada, thirteen members, constituting the ministry, who must be sustained by a Parliamentary majority. The English model is exactly followed. The Governor has nominally the power of veto, but his use of it is as much in abeyance as is the Queen’s prerogative in regard to Acts of Parliament. The premier is in fact the ruler, but his power depends upon possessing a majority in the House of Commons. This responsible government, therefore, more quickly responds to popular action than ours. The Senators are chosen for life, and are in fact appointed by the premier in power. The House of Commons is elected for five years, unless Parliament is sooner dissolved, and according to a ratio of population to correspond with the province of Quebec, which has always the fixed number of sixty-five members. The voter for members of Parliament must have certain property qualifications, as owner or tenant, or, if in a city or town, as earning three hundred dollars a year—qualifications so low as practically to exclude no one who is not an idler and a waif; the Indian may vote (though not in the Territories), but the Mongolian or Chinese is excluded. Members of the House may be returned by any constituency in the Dominion without reference to residence. All bills affecting taxation or revenue must originate in the House, and be recommended by a message from the Governor-general. The Government introduces bills, and takes the responsibility of them. The premier is leader of the House; there is also a recognized leader of the Opposition. In case the Government cannot command a majority it resigns, and the Governor-general forms a new cabinet. In theory, also, if the Crown (represented by the Governor-general) should resort to the extreme exercise of its prerogative in refusing the advice of its ministers, the ministers must submit, or resign and give place to others.

The Federal Government has all powers not granted expressly to the provinces. In practice its jurisdiction extends over the public debt, expenditure, and public loans; treaties; customs and excise duties; trade and commerce; navigation, shipping, and fisheries; light-houses and harbors; the postal, naval, and military services; public statistics; monetary institutions, banks, banking, currency, coining (but all coining is done in England); insolvency; criminal law; marriage and divorce; public works, railways, and canals.

The provinces have no militia; that all belongs to the Dominion. Marriage is solemnized according to provincial regulations, but the power of divorce exists in Canada in the Federal Parliament only, except in the province of New Brunswick. This province has a court of divorce and matrimonial causes, with a single judge, a survival of pre-confederation times, which grants divorces a vinculo for scriptural causes, and a mensa et thoro for desertion or cruelty, with right of appeal to the Supreme Court of the province and to the Privy Council of the Dominion. Criminal law is one all over the Dominion, but there is no law against adultery or incest. The British Act contains no provision analogous to that in the Constitution of the United States which forbids any State to pass a law impairing the obligation of contracts—a serious defect.

The Federal Government has a Supreme Court, consisting of a chief-justice and five puisne judges, which has original jurisdiction in civil suits involving the validity of Dominion and provincial acts, and appellate in appeals from the provincial courts. The Federal Government appoints and pays the judges of the Superior, District, and County courts of the provinces; but the provinces may constitute, maintain, and organize provincial courts, civil and criminal, including procedure in civil matters in those courts. But as the provinces cannot appoint any judicial officer above the rank of magistrate, it may happen that a constituted court may be inoperative for want of a judge. This is one of the points of friction between the federal and provincial authorities, and in the fall of 1888 it led to the trouble in Quebec, when the Ottawa cabinet disallowed the appointment of two provincial judges made by the Quebec premier.

The Dominion has another power unknown to our Constitution; that is, disallowance or veto of provincial acts. This power is regarded with great jealousy by the provinces. It is claimed by one party that it should only be exercised on the ground of unconstitutionality; by the other, that it may be exercised in the interest of the Dominion generally. As a matter of fact it has been sometimes exercised in cases that the special province felt to be an interference with its rights.

Another cause of friction, aggravated by the power of disallowance, has arisen from conflict in jurisdiction as to railways. Both the Dominion and the provinces may charter and build railways. But the British Act forbids the province to legislate as to lines of steam or other ships, railways, canals, and telegraphs connecting the province with any other province, or extending beyond its limits, or any such work actually within the limits which the Canadian Parliament may declare for the general advantage of Canada; that is, declare it to be a Dominion work. A promoter, therefore, cannot tell with any certainty what a charter is worth, or who will have jurisdiction over it. The trouble in Manitoba in the fall of 1888 between the province and the Canadian Pacific road (which is a Dominion road in the meaning of the Act) could scarcely have arisen if the definition of Dominion and provincial rights had been clearer.

But a more serious cause of weakness to the provinces and embarrassment to the Dominion is in the provincial subsidies. When the present confederation was formed the Dominion took on the provincial debts up to a certain amount. It also agreed to pay annually to each province, in half-yearly payments, a subsidy. By the British Act this annual payment was $80,000 to Ontario, $70,000 to Quebec, $60,000 to Nova Scotia, $50,000 to New Brunswick, with something additional to the last two. In 1886-87 the subsidies paid to all the provinces amounted to $4,169,341. This is as if the United States should undertake to raise a fixed revenue to distribute among the States—a proceeding alien to our ideas of the true function of the General Government, and certain to lead to State demoralization, and tending directly to undermine its self-support and dignity. It is an idea quite foreign to the conception of political economy that it is best for people to earn what they spend, and only spend what they earn. This subsidy under the Act was a grant equal to eighty cents a head of the population. Besides this there is given to each province an annual allowance for government; also an annual allowance of interest on the amount of debt allowed where the province has not reached the limit of the authorized debt. It is the theory of the Federal Government that in taking on these pecuniary burdens of the provinces they will individually feel them less, and that if money is to be raised the Dominion can procure it on more favorable terms than the provinces. The system, nevertheless, seems vicious to our apprehension, for nothing is clearer to us than that neither the State nor the general welfare would be promoted if the States were pensioners of the General Government.

The provinces are miniature copies of the Dominion Government. Each has a Lieutenant-governor, who is appointed by the Ottawa Governor-general and ministry (that is, in fact, by the premier), whose salary is paid by the Dominion Parliament. In theory he represents the Crown, and is above parties. He forms his cabinet out of the party in majority in the elective Assembly. Each province has an elective Assembly, and most of them have two Houses, one of which is a Senate appointed for life. The provincial cabinet has a premier, who is the leader of the House, and the Opposition is represented by a recognized leader. The Government is as responsible as the Federal Government. This organization of recognized and responsible leaders greatly facilitates the despatch of public business. Affairs are brought to a direct issue; and if the Government cannot carry its measures, or a dead-lock occurs, the ministry is changed, or an appeal is had to the people. Canadian statesmen point to the want of responsibility in the conduct of public business in our House, and the dead-lock between the Senate and the House, as a state of things that needs a remedy.

The provinces retain possession of the public lands belonging to them at the time of confederation; Manitoba, which had none when it was created a province out of north-west territory, has since had a gift of swamp lands from the Dominion. Emigration and immigration are subjects of both federal and provincial legislation, but provincial laws must not conflict with federal laws.