The Online Library of Liberty

A project of Liberty Fund, Inc.

• Introduction
• Publisher’s Note
• Preface to the First Edition
• Preface to the Edition of 1910
• Note to Edition of 1914
• List of Presidents
• Dates of Some Remarkable Events In the History of the North American Colonies and United States
• Area, Population, and Date of Admission of the States
• Chapter 1: Introductory
• Part I: The National Government
• Chapter 2: The Nation and the States
• Chapter 3: The Origin of the Constitution
• Chapter 4: Nature of the Federal Government
• Chapter 5: The President
• Chapter 6: Presidential Powers and Duties
• Chapter 7: Observations On the Presidency
• Chapter 8: Why Great Men Are Not Chosen Presidents
• Chapter 9: The Cabinet
• Chapter 10: The Senate
• Chapter 11: The Senate As an Executive and Judicial Body
• Chapter 12: The Senate: Its Working and Influence
• Chapter 13: The House of Representatives
• Chapter 14: The House At Work
• Chapter 15: The Committees of Congress
• Chapter 16: Congressional Legislation
• Chapter 17: Congressional Finance
• Chapter 18: The Relations of the Two Houses
• Chapter 19: General Observations On Congress
• Chapter 20: The Relations of Congress to the President 1
• Chapter 21: The Legislature and the Executive
• Chapter 22: The Federal Courts
• Chapter 23: The Courts and the Constitution
• Chapter 24: The Working of the Courts
• Chapter 25: Comparison of the American and European Systems
• Chapter 26: General Observations On the Frame of National Government
• Chapter 27: The Federal System
• Chapter 28: Working Relations of the National and the State Governments
• Chapter 29: Criticism of the Federal System
• Chapter 30: Merits of the Federal System
• Chapter 31: Growth and Development of the Constitution
• Chapter 32: The Amendment of the Constitution
• Chapter 33: The Interpretation of the Constitution
• Chapter 34: The Development of the Constitution By Usage
• Chapter 35: The Results of Constitutional Development
• Part II: The State Governments
• Chapter 36: Nature of the American State
• Chapter 37: State Constitutions
• Chapter 38: The Development of State Constitutions
• Chapter 39: Direct Legislation By the People
• Chapter 40: State Governments: the Legislature
• Chapter 41: The State Executive
• Chapter 42: The State Judiciary
• Chapter 43: State Finance
• Chapter 44: The Working of State Governments
• Chapter 45: Remedies For the Faults of State Governments
• Chapter 46: State Politics
• Chapter 47: The Territories
• Chapter 48: Local Government
• Chapter 49: Observations On Local Government
• Chapter 50: The Government of Cities
• Chapter 51: The Working of City Governments
• Chapter 52: An American View of Municipal Government In the United States
• Appendix: Note to Chapter 3: On Constitutional Conventions
• Note to Chapter 4: What the Federal Constitution Owes to the Constitutions of the Several States
• Note to Chapter 10: Extracts From the Rules of the Senate
• Note (a) to Chapter 16: Private Bills
• Note (b) to Chapter 16: The Lobby
• Note (a) to Chapter 30: Constitution of the Confederate States, 1861–65
• Note (b) to Chapter 30: The Federal Constitution of Canada
• Note to Chapter 33: The Dartmouth College Case
• Articles of Confederation, 1781–88
• Constitution of the United States
• Extracts From the Constitution of the State of Oklahoma 1

Note (B) to Chapter 30

THE FEDERAL CONSTITUTION OF CANADA

The federal Constitution of the Dominion of Canada is contained in the British North America Act 1867, a statute of the British Parliament (30 Vict. c. 3).1 I note a few of the many points in which it deserves to be compared with that of the United States.

The federal or dominion government is conducted on the so-called “cabinet system” of England, i.e., the ministry sit in Parliament, and hold office at the pleasure of the House of Commons. The governor-general is in the position of an irresponsible and permanent executive similar to that of the Crown in Great Britain, acting on the advice of responsible ministers. He can dissolve Parliament. The Upper House or Senate is composed of 87 persons, nominated for life by the governor-general, i.e., the ministry. The House of Commons has at present 221 members, who are elected for five years. Both senators and members receive salaries. The Senate has little power or influence. The governor-general has a veto but rarely exercises it, and may reserve a bill for the Queen’s pleasure. The judges, not only of the federal or dominion courts, but also of the provinces, are appointed by the Crown, i.e., by the dominion ministry, and hold for good behaviour.

Each of the provinces, at present nine in number, has a legislature of its own, which, however, consists in Ontario, British Columbia, Manitoba, and New Brunswick of one house only, and a Lieutenant-Governor, appointed by the dominion government, with a right of veto on the acts of the legislature, which he seldom exercises. Members of the dominion parliament cannot sit in a provincial legislature.

The governor-general has a right of disallowing, on the advice of his ministers, acts of a provincial legislature, and sometimes (though rarely) exerts it, especially when a legislature is deemed to have exceeded its constitutional competence.

In each of the provinces there is a responsible ministry, working on the cabinet system of England, the lieutenant-governor representing the Crown and acting as a sort of constitutional sovereign.

The distribution of matters within the competence of the dominion parliament and of the provincial legislatures respectively, bears a general resemblance to that existing in the United States; but there is this remarkable distinction, that whereas in the United States, Congress has only the powers actually granted to it, the state legislatures retaining all such powers as have not been taken from them, the dominion Parliament has a general power of legislation, restricted only by the grant of certain specific and exclusive powers to the provincial legislatures (§ § 91–95). Criminal law is reserved for the dominion Parliament; and no province has the right to maintain a military force. Questions as to the constitutionality of a statute, whether of the dominion Parliament or of a provincial legislature, come before the courts in the ordinary way, and if appealed, before the Judicial Committee of the Privy Council in England.

The Constitution of the dominion was never submitted to popular vote, and can be altered only by the British Parliament, except as regards certain points left to its own legislature. It was drafted by a sort of convention in Canada, and enacted en bloc by the British Parliament. There exists no power of amending the provincial constitutions by popular vote similar to that which the peoples of the several states exercise in the United States.

As to the Constitution of the Commonwealth of Australia, drafted in Australia and enacted by the British Parliament in 1900, the reader may refer to the author’s Studies in History and Jurisprudence, where it is described and commented on. The Constitution of the South African Union, enacted in 1909 by the British Parliament at the request of a convention held in South Africa, is more unitary in its character than are those of Canada and Australia.

[1] See also 31 & 35 Vict. c. 28, and 49 & 50 Vict. c. 35.