D. THE AMENDMENT OF THE CONSTITUTION CHAPTER XVII DOMINION PARLIAMENTS AND THE The Im THE paramount position of the Imperial Parliament results in a fundamental distinction between the Imperial Constitution and that of any self-governing Dominion. perial Parliament cannot bind itself: it can fetter itself as much as it pleases, but it can cut its fetters asunder at pleasure. It may provide that no Act shall be passed to alter an Act which it has passed save by a two-thirds majority of both Houses, but the next Parliament may by simple majority repeal the offending Act, and it is in vain that the effort to bind itself had been made. But in the case of a Dominion the position is not so simple. Any rule whatever which has been laid down by any legislative authority with regard to the mode of modifying the constitution is a fetter on the freedom of the Dominion Parliament which it cannot break save in the way appointed by the Act imposing the fetter. If a Dominion Parliament enact to-morrow that any Act which it passes must be passed by a two-thirds majority to take effect as an alteration of the constitution, then this condition becomes one which, so long as the Act in question stands, cannot be undone by the Parliament save in the prescribed manner, that is to say, if the Act has been careful to make it clear that this provision itself is to be protected in this way. In Queensland indeed, in 1908, it was found possible to evade a difficulty that no alteration of the constitution of the legislative Council could be made except by a two-thirds majority in the Council by repealing the proviso in the Constitution Act of 1867, which made this necessary, as the proviso itself was not covered by the requirement, but the really effective method of requiring that the majority should apply also to any alteration of the law affecting the principle would secure the effectiveness of the rule. The limit thus put on the powers of Dominion Parliaments is at first sight rather curious, but it follows inevitably from the express provision in the Colonial Laws Validity Act, 1865,1 that the power of constitutional alteration there accorded to every representative legislature shall be exercised in such manner and form as may from time to time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law, for the time being in force in the said Colony. The actual limitations which apply to the Dominions and States are extremely various. At the one end of the scale stands Canada, and at the other the Commonwealth of Australia; the other Dominions occupy an intermediate position. The constitution of Canada was the result of the agreement of four colonies, and the fact that the federal pact was in effect a treaty has never for a moment been forgotten by any of the parties to that pact, and was indeed explicitly recognized in 1907 by the Dominion Government, and by the Imperial Government, when the British North America Act was amended as regards the payments made to the provinces.2 The amendment was only carried out when it was ascertained that all the provinces were in full agreement that it should be made, and that the only difficulty was that British Columbia was anxious to get more than it was given, but preferred to have something rather than nothing. The occasion is of interest for another cause the Parliament of the Dominion, naturally enough from its own point of view, but from the point of view of the Imperial Parliament in an unconstitutional manner, wished the Act to declare that the settlement of payments by the Dominion to the provinces contained in the Act was to be final and unalterable. Such a declaration could not have been placed in an Act without an absurdity, since the Imperial Parliament cannot bind and ought not to purport to bind a successor, and the difficulty of meeting the wishes of the Dominion and of 2 7 Edw. VII, c. 11. 1 28 and 29 Vict. c. 63. avoiding an unconstitutionality, while at the same time meeting the objection of British Columbia to any action by the Imperial Government, which could be interpreted as an indication that that Government was not prepared to allow its chance of obtaining better terms any weight, was relieved by reciting in the Act the resolution of the Canadian House of Commons, in which the agreement of the provinces was expressed and in which the Dominion view of the final and unalterable character of the settlement was set out. In point of fact the new Dominion Government recognized that the province had a grievance, and set up an arbitral tribunal to decide the question what additional sum ought in fairness to be allowed to the province. Hence it follows that in all fundamentals the constitution of Canada cannot be changed by the Dominion Parliament. In many matters, of course, the constitution can be altered: but these are minor matters, not matters of the first order of importance. Even the mode of increasing the number of members of Parliament is determined on a population basis, a fact explicable of course by the federal principle. The most serious thing is, of course, the position of the two Houses they stand in such a relation that the certainty of friction whenever there is a change of Government is produced, and such friction has always been produced. The system of life nomination is a thoroughly bad one in any country where the nominations are made solely on political grounds, and, while it was recorded that Sir John Macdonald only once gave a Senatorship to a political opponent, it was denied of Sir Wilfrid Laurier that he ever was guilty of that indiscretion. The Senate accordingly in the long régime of the Conservatives from 1878 to 1896 became a mere Conservative stronghold, and it mortally offended Sir Wilfrid Laurier by refusing to accept his proposed railway to the Yukon, a fact to which he was wont to trace the loss of the Alaska boundary arbitration, but at any rate, after the Liberal régime from 1896 to 1911 the Senate proved itself at least as obstructive to the new Government as its predecessor had been to the Liberals. The position was obviously difficult the only power of overriding the views of the Senate was that provided by s. 26 of the British North America Act, 1867, which merely allowed the addition, by the authority of the Crown only, of three or six Senators, and as the Imperial Government laid down in December 1873, when the use of this power was applied for by Mr. Mackenzie, when he came into office on the defeat of the first Ministry of Sir John Macdonald in that year, the power was only intended to be used for the settlement of some serious deadlock, when the numbers on each side were equal. The addition of six members in the early years of the Borden Ministry would have been quite useless save to add to the debating power of the Government. In 1912 the Senate, under the direction of Sir R. Cartwright, who had, even under the Liberal Government, been anxious to make it a more active body, threw out three Bills: they amended a Bill to set up a tariff commission in such a way that the Government had to drop it, they insisted that subsidies for road-making in the provinces should be on a proportional basis, and they would not give a subsidy to the Temiskaming-Ontario railway on the ground that the railway had been built and was working at a profit, and needed no subsidy. The more obvious reason for the refusal was that Ontario was the centre of the Conservative authority and therefore unpopular with the Senate. A further attempt to interfere with a Bill granting a subsidy to the British Columbia section of the Canadian Northern Railway was a failure through the error of the member in charge of the Opposition in thinking that the Bill could be amended, which, as the matter was a money Bill, the Speaker of the Senate ruled was impossible. A subsidy of 100,000 dollars a year to Prince Edward Island was opposed, but there was a split in the Liberal camp, and the Bill was passed by 15 to 12 votes. In 19131 matters were not better between the two Houses. The most important action, of course, was that of the Senate in rejecting by 51 votes to 27 the Naval Aid Bill, providing for the grant of 35,000,000 dollars for the construc1 Parl. Pap., Cd. 7507, p. 51; Canadian Annual Review, 1913, pp. 441, 442. tion of ships for the British Navy, to which reference has been made above. But the Senate also declined to approve proposals made for the grant of assistance in road-making to the provinces, unless the strict system of proportional payments per head of population was adhered to, and unless the Government dropped the clause in the Bill authorizing the expenditure of the proposed subsidy moneys by the Minister of Railways and Canals in a manner agreed upon with the Provincial Legislatures and Governments. They further ruled out as inadmissible proposals which were made by the Government to authorize the Minister of Railways, with the consent of the Governor in Council, to construct lines of railway not exceeding 200 miles in length, and to purchase lines not exceeding twenty-five miles in length, unless the contract of purchase or other document was laid before the Parliament for approval, an arrangement which the Government contended would deprive the Bill of all possible value to them. Nevertheless, in 1914 the Government managed to carry out most of its proposals, and the decision to arrange a satisfactory settlement of the question of redistribution with the co-operation of the Opposition was widely approved. Under the redistribution as settled the numbers of the House of Commons were re-arranged as follows:-Ontario, 82; Quebec, 65; Nova Scotia, 16; New Brunswick, 11; Manitoba, 15; British Columbia, 13; Prince Edward Island, 3; Alberta, 12; Saskatchewan, 16; and the Yukon, 1. The marked changes were of course in the western provinces, where the census had shown the great growth of population: Ontario lost four members, the unit being adjusted by the sixty-five allotted to Quebec, and being based strictly on the number of voters; Nova Scotia and New Brunswick two apiece, Prince Edward Island one, while Alberta and Manitoba won five each, and the other two provinces six each. The growth in the population of the west rendered it necessary and desirable to increase the number of their representatives in the Senate, but there arose a serious amount of friction over the question whether the increases proposed to be made in the number of the Senate |